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• SUBSCRIBERS' NAMES'
1 o the New Virginia Justice, &c.
It was the original intent?'>n of the author to have annexed
to each fufcdcriber's name, his title or addition. — Vich '"his vew
the feveral fubfcription. pipers eo»n lined a column for 1 Subfcubeis
names and addition.* But as the author was indebted to the kind
aififfance of gentlemen in various rxirts of the lhte for ire pro-
curementof fubferibrrs, who, in few inltances, inferred more than
the Hamey he finds it impracticable to add any thing more him-
Elf with the fmallelt degree of accuracy — To avoid, therefore,
the imputation of*parti*':ty (in a matter which is ctrtai'dy imma-
terial in it&lf,) as wed ps the receffty cf annexing pities which
are merely complimentary, he ha» been induced from ihe recom-
mendatiori of gentlemen, on whote judgment he pLces the uiincif
Confidence, to ornit the auditions,in eveiy caieT
Samuel G. Adams, Richmond.
Robert Adams, Wythe,
Joleph Akin, Pitfylvania. *
John Alcock, Orange.
jVL H. Alexander, Campbell,
CfiarlcS Alexander, Fairfax.
John Alexander, Henry.
Wni. T. Alexander, IC. G.
Mark Alexander, Mecklenbg.
William Alexander, Stafford.
William Allen, Buckingham.
Samuel Allen, do.
Charles Allen, P. Edward.
James Allen, Shenandoah.
.'I bonus Allen, len, do,
James Allen, do,
William Aijen, do.
Jamrs Allen, jun. FretPg.
Harrifon Ali-ymnd, Suffolk,
Francis Anderfpn, nnielia
isndrew Andtrlon, Augulia.
W iliiam Anderfoh, Botetourt.
The mas Anderfun, Buckingh.
William Anderfon, Campbell.
Ivfktihew Atiderlbn, GlTil.tr.
Samuel Anderfun jr. do.
Wiliiam Anderfon, Richmond,
Turner AiicWlbn, Rouifa.
Michael Anderl'or,, do.
Robert Andrews, Wfiliamsbg.
Joieph Anihpov, Ctmpbell.
Chat, At buckle, Greenbr. 13,
John Archer, Am-lia.
Edward Archer, Norf 1'c.
John B Annul tad, Caro'ine,
Robt. B", Arrndlead, JN. Rent,
Maxwell Arm firing, Harrtfon.
George Auvld, Ra idolpu.
■ Samuel Arr- 'i, Fai'fix
T ilium AlGw, Berkley.
William F. Ast, Richmond.
' Roger Arkinfim jr. Cwtilerfd*
Michael Htkiufon, Fluvanna,
Wiilirnn A.twell, P. V/ikum,
ivionis Auiii.i, AuBulla.
Chapman Attfl-i , Hanover.
Wiiiiam Aultm, lvRLmond.
\lofes Auffin, Wytre,
Banc Averv, YVavvich,
Geo; Abie J, A.cvn.ui.e,
SUBSCRIBERS' NAMES.
B
Michael Bailey, Suftcx.
Caleb Balcer, Prince Edward.
Samsel Baldwin, da.
Jahi Baldwin, Amelia.
James Ball, Lancafter.
William T. Ballard, C. City.
Thomas Banks, Manchefter.
Henry Banks, Richmond. 12.
Gerard Bank:, Culpeper.
"Wm. B, Banks, W&M Col.
Adam Banks, Madifon.
Wi liam Banks, Orange.
John Barber, Ifle of Wight.
James Barbour, Madifon.
Ambrofe Barbour, do.
Mnrdecai Barbour, Culpeper.
Richard Barbour, Albemarle.
James Barbour, jun. Orange.
Allen Barnerd, Fluvanna.
William Barnes, Dumfries.
Ambrofe Barnett, Fauquier.
James Barnett, Montgomery.
John Barrett, Richmond.
Wrn. Bafk»rviIIe, Mecklenbg.
Geo. H. Bafkerville, do.
Thorrns F. Bates, Goochland.
Law. Battaile, Caroline.
Richard Biugh, Cheftcrfield..
Archibald Buugb, do.
Jofeph Baxter, Rockingham.
Rtchari Bailor, Berkley.
Jinu-s Bay top-, Glo'ftcr.
A B.achv.n, Northumberland.
H D Beadles, Richmond.
John B"'ale, Bomt, 3 copies.
R »bert iRaie, Madifon. -
R u'v;n Beale, do. ■
Henry B'atty, Win "belter.
Charles Bfci. ley, Ruff.ll.
Robert Bedford, C'1a» lofts.-
Tho nas Bedford, Meek *-,
Henry iTdin^r, Berkley. 6,
P niel Bc'linger, Norfolk.
£jward Beefoti, Berkley.
Thomas Bell, Charlottcfville.
James Bell, Albemarle.
James Bell, Augufta.
William Bell jun. do.
Thomas Bell, Orange,
James Bell, do.
George Benn, Ifle of Wight.
William Bentley, Powhatan.
Efford Bentley, Amelia.
Carter Beverley, Culpeper.
Richard Bibb, P. Edward.
Benjamin Biggs, Ohio.
I Richard Billups, Matthevks.
Edward Birchett, Brunfwick.
Henry L^Bifcoe, Manchefter.
Luman Bifhop, do.
Samuel Black, Albemarle.
Jofeph Black well, Fauquier.
John Blackwell, do,
David Blair, Fredbg.-
James Blair, do.
James Bland, Weftmoreland.
Ingram Blanks, Greenville.
James Blick, Brunfwick. .
Cornelius Bogard, Randolph.-
Thomas Boiling, Cobbs.
Robert Boiling, Peterfburg.
Powhatan Boiling, Campbell.
Davis Booker, Amelia.
Parham Booker, do.
William Booth, Glo'ftcr.
Joel Bolt, Botetourt. ■
Robert Boufti, Norfolk.
Richard Bnwen, Wincheftet.
William Bo-wen, Grayion.
Wilham Bowyer, Augufta,
John Bovvyor, do.
Henry Bowyer, Botetourt.
Jams:, Poyce, Norfolk.
William Boyce, Surry.
Alexander Bayd, Mscklenbg.
Francis Boykin, I. of Wight.
John Boys, Augufta.
J-unes A. BraJb /, Surry.
Samuel P. Braddiek, RichmM.
S U B S C R I B E R S' NAMES.
John Bradley, Charles City*
Matthew Branch, Buckinghm.
James Brander, Mancheller.
Kimrod Branham^ Albm.
Vincent Brariham, Rich'd. co.
Lionel Eranfon, Hardy.
Carter BraXi»n, Richm'd city.
James B reck en ridge, Botetourt
Thomas Brent, Noifoik,
Daniel C. Brent, Stafford.
Richard Brent, P. William.
George Brent, Stafford.
Daniel Brent, do.
John Bnukley, Bath,
lid ward Broajdus, Albemarle.
V\' iiliam Broaddus, Culpeper.
Thomas Bioaddu^ do,
Daniel Bsoadhoad jr. Goochld.
William B. Broadnax, Brum.
Charles Rroadwater, Fairfax.
Robert Brooke, Rich, city, 2.
John T. Brooke, Frcdbg.
Francis T. Brooke, Tappah,
Humphrey Brooke, Fauquici.
Francis Brooke, do.
James V. Brooking, Amelia.
James Brooks, Albemarle.
RCoert Brough,- Norfolk. 2.
Berjamin Brown, Albetnasle,
Bernard Li'own, do. 2 copies.
Rezalcel Brown, do.
John Bi own, Bath,
Robert Brown, Fauquier.
John Blown, Pichnj- nd city.
James Brown, Tieuei k1 iburg.
Joke Brow, cr, Mecklenburg.
James Bruce,, Halifax. 5 cop.
George? Bruce, Charlottesville.
Richard Bruce, "Albemarle.
rJt imcthy Brunhidge, Dumfries.
Archibald Eryce jun. Goochld.
Andrew Buchanan, Stafford.
Alex: Buchanan, Rickd. ci.
Charles Buck, Shenandoah. 4.
Cornelius Buck, Manchefttr.
1 William Buckner jun. Alb.
George Buckner jun, Caroline
David Bullock, Louifa,
T'homas Burford, Chcflerfield.
Henry B rnke, Albemarle.
Hardin Burnley, Richmond ci.
Robert Burton, fenr. E odor J.
Wis. Burton, Henrico.
Nathaniel Bui well,' Gk/fler.
Lewis Burweil, Richmond ci.
Nathaniel Bui well, IC. Wm.
Henry Burti, Vv'i.icheller.
James Butler, Richmond.
Thomas Butler, K. Win,
Beckiviih Butler, Wefimcreld,
Robert Butt, Norfolk.
CMc? W. Byid? C. City.
C
William Cabell, Amhertf, 2,
Nicholas Jubelj, do.
Joleph Cabell jun, Buckingh.
Daniel Call, Pcterfburg.
James Call..way, Bedford.
James Callaway j». Fianliin.
William O. Call is, Lcunii.
James CalM, iNorbdk.
John S. (Divert, Nirfclk,
Charles Cameron, Bath. •
JaintS Cair. ick, ? iexan»«'i la,
jtmbroN Camr, Culpeper.
Robert Camj:, Richmond c:ty.
Alexander Campbell, do.
ikicb.ib:Id Cqtr.pbell, Marcu'r.
Archibald Campbell, CDilotti
fames Campbell, Fauquier.
W iiliam Caivpbtll, Oiange.
Alex: Campbell, Rockbridge
H. Campbell, do.
James Campbell, do. 4 cop,
Luke Cannon, Dumfries.
Hugh C- ' rion, Greer,biier.
A. Cardczc, Richmond*,
SUBSCRIBER S'. NAMES.
Tame? Carmichae], Fred kfbg.
fbomas Carney, Randolph.
Pt-tT Carr, Albemarle,
John Carr, do.
Mieajah Carr, do.
Gailind Carr, do.
Paul CVrington jr. Charlotte.
C'enlcnt Carring ton, do,
Mavo Carringtoi, Cumberld.
Jofepb Cyrnngtop, do.
Geeige Carrii gton, Ha'ifax 2.
Pdward Carrlng ton, Rich. ci.
George Cadbn, do.
ChatRs Carter jun. Cu'peper.
K J ward Carter, Amhtr'L
J k-ph Carter jun, Lancafter.
Charlft Carter, Lee.
Chs B. L after-, Richmond co.
]• rancis I. Carter, Wythe.
John Carimill, B *t**toutt,
John CVuthers, Rockbridge.
James Caruther*, do.
i Dudley Ciry, Mat "hew?,
John C'^ry, do.
fr>mp Ca'lett, AIM-narle,
James Catott, Noriuik.
I\ Cavan, Loudon.
Pelhe.d C ave, Orange.
I >avid ChadweU, Lee,
J-ftaua Chadir., Amelia.
*W. Chamberiayrte, N. Kent,
M/i!Ham Chambers, Stauhton.
MMlinn Chapman, Madden,
Thomas Chapman, Dumfries.
Gen. Chapman jun. MaryLnd
James Chat hop, Montgomery.
Matthew Cheatham, CheRerfd.
John Chew, t rederickfourg,
jrl'eph Chew, Spotfvlv-.nia.
ivlicajah Chiles, Charlotttlviile
Henry Chiles, Caroline.
|<>hn Chiles, do
Thomas Chjhon, Fauquier.
\Valter Chii)v>lm jr. Hanover.
Jehn Chowning, Lancaiier,
Vv iiliahi Chownirtg, do.
Gilbert ChnGan, fRuimton.
1 ho: Churchill, Miqcilx. 2 cop.
1 ho: Claiborne, BrnHwitk.
h hilip CI libnn e, tlo.
Wm. Ck'ib* rne, IVHnch. 2 cop
William Ciark, Albemarle,
fames C'aric, Campbell,
Tho: M. CLr'<", co.
'ohti Clark, HahLx. 5 copies.
bHd Clark, Luneib rg.
Wilham Ckrx, j'nRlyu 4?.
Chrilioptvr Clarke, Bedlcid.
James C!arke, P< whifan.
Peter Cl-rklon, Albemarle.
David Ci CXri, d>.
vVi ijam CTTlon, FauciM"***
Wm. Oaatghton, N< rrht.mM.
K)ea7>r Clay, Co-ll rheid.
Ad. Clay, Fittfyb se.ia.
John Oayfor, Bedford.
Mace Clements, Ll'cX,
Geo: Clenrieneo, Kanrwa.
John Coalter, btau.iton.
James Cochran, Bath,
Fr.o: Cocbian, Ffed'g. 6 cop."
Atuleif :n CoiTe, Cumbcila -J.
Bowler Cnckct Turkey Bland.*
Chm'es Cocke, Lee •
Aschibald Cccke, Surry.
Robert Cocke, do,
• ichard Ctckejr, do*
Jdie Leg 111, CfcdierHeld,
Jacob L Lohep, Richmond.
Darnel Coleman, Caioline.
John Cedes, AIV em at le.
Charles Colley, Hanover.
Rawltigh Coiften, Fieocrick.
Roger Col rait, F redrrickfburg.
Notley Conn, kentuckey.
John Conneli, Ghto.
Jiicob Conrad, Pendleton.
Catlett Conway, Orange,
Bartho. Conyers, Culpepcf,
Mordccai (^onke, Glo'Rtr.
William Cook, Richmond#
SUBSCRIBER S' NA'MES.
Stephen Cooke, Cumberland.
Charles Copland, Richmond.
Ov*rron Cofby, Urbanna.
Wiliiam Courts, Culpeper.
Fran< is Cowherd, Orange.
Charles Cox, Richmond city.
JoRph Cox, Monongalia.
Wm. C?oR Craddock, Amelia.
Robert Craig, JVlancheft-er.
Adam Cri-., Richmond.
Geo: Cnil'head, Ltmenburg.
William Craighead, do.
Nathan Crawford, AmhertL
Nel ion Crawford, do.
/.'"x: Ciaw-'ord, Au<rufta.
li.l Crawhird, h iohnu>nd,
IVt<-r Cravt-Grd, Lochia.
Gideon Crews, vVarniinlier,
]Aae Cr'hnati, Lee.
Robert Crocket, Wythe.
John Croucilbn, Sntr/andonh.
Charles Crouyhfon, hred'bg,
Abnev Crump, IGwhatan.
Goodrich Crump, do.
John Curd, Goochland.
JLine* Curt ton, Prince-George
John Cm ranee, Randolph.
James Cnrne, Richmond city.
A. Currie, Richmond city. 24.
D .
Dai uev, K:n<1 A Queen.
Vv'nr. D,'h;,ev, Richmond city.
Langhor-ne Dade, P* William.
>C Da^c, Alexandria,
Wm. Dal'on, A'i'oemarle.
FHneas liana, Norfolk.
J. B. D and ridge, Ricrmord.
Wm..Dandridge, New Kent.
John Daniel, Charlotte.
Robert Daniel, ( .'range.
James Daniel, Prince JGwarcl.
john Daniel, Orange.
'I ravers Daniel jr. Stafford,
/.clam Darby, P redericlcfburg,
J. Darmldait, Richmond.
Jacob Daughtry, Nanfemond.
Rirkett Davenport, Culpeper.
Richard Davenport, Albemarle.
John Davenport, Berkley.
Baker Davidlbn, Botetourt.
jGcph Dayidfon, Randolpn.
Robert DavL, Albemarle.
James Davis, AuguPa, 2 cop.
William Davis, Bedford,
Aquilla Davis, Fauquier.
Lewis Davis, Franklin.
John Davi", M nohgalia.
bamuel Davis, Norfolk.,
Ifaac Davis jr. Orange,
James Davis, Wythe.
Wji.liam Davis, do.
Alex: Dawney, Cutperer.
John Davy Ion, Richmond.
Benjamin Day, Frederickfburg
i h(>mas Deadrick, Wincheller
James Dt-ane, Cumberland.
tL Redman, Albemarle.
D. Dedman, do.
vVm. Deloney, Mecklenburg.
Geo: Deneale, Alexandria,
bdward Dennis, Charlotte.
J- hn Depfieft jr. Campbell,
rienr} Dering jr. Monongalia
Sam. Dernovrlle, Charles City.
Matthew Dickey, Grayfon.
J'mcs Dickinfou, Richm'd ci.
Henry Diekinfon, Rufftll.
I hornas Dtgges,-Fauquier,
Ldward Digges, do.
John Dillard, Henry.
George Dr.lard, Suji'ex.
George Dillard, Amherif.
George Liver?, Albemarle.
John Dixon Berkley,
john Dixon, Richmond city.
Phibp Doddridge, Ohio.
Daniel DodPun, Pertcihurg.
john Dorlon, South Quay.
John Dortch, Mecklenburg.
Newman L'ortcb, do.
John Douglas, Bath,
Achilles JJouglafs, Albemarle.
SUBSCRIBER S' NAMES.
Robert Dcutl at, Augufta.
Thomas Doutiaf, Aug-nla.
Jas: Gamuel Dovdall, Fied'ic.
James Dowdd, Slaiiord.
Majer.Dowel, ivock bridge.
John Downing, Duuiflo
Raw: W. Downman, Dar.cV.
Jcfeph B. Downman, d~.
Wm, DowiWnan, P. William.
Edward Dromgole, Bruiilwick
William Drope, GruyGn.
John Drommond, Ltunfwick.
William Dudley, Warwick.
William Duiguid, Buckingham
Be.J: Dulancy, Fail Ex.
W m. H. Dulaiwjl, Woodilock
John Dai,das, Alexandria.
John X)uif,ip, do.
Andr. Dui.fl.omb, Richmond.
James Dupuy jr. Nottoway.
Philip Duval,. Buckingham.
Samuel Duval, Franklin.
Samuel Dye, Albemarle.
James Dyer, Pendleton.
Roger Dyer, do."
James Dykes, Frederickfburg.
JUmes D)iart, Waiting ton.
E
J. Eafort, Ifle of Wight.
' Dianas Eaii, Henry.
Wrn. Edmilfoii, Wallnngton.
Samuel ten'.ill on, do.
Thomas Edmunds, Biunfwick.
William Edmunds jr. Fauquier
Richard Edwards, Surry.
William Edwards, do.
Joseph Egglcfton, Amelia.
Kichard Egglellon, do.
Marcus Ekan, Richp ond city
Ro'ph Fldridge, Buckingham.
Pvobert Eiey, Ifle of Wight.
Ne*han Ellington, Rufleil.
J oil ah Ellis, A re her 11.
Thqmas Ellis, Orange.
Hesekiah Ellis, Spotiylvania,
Thomas Ellmore, Amelia,,
Petor Epes, Piince Grc ad.
Peter Epes jr. Ltmenu i g.
John Erwin, Bath.
Hancock Euilace, Stafford.
Wilhajn Evens, Buckingham.
Dudley 1 vans, Monongalia.
John EvrttiS jr. do.
Jcile Evaia4-, Wythe.
James Evans, do.
William Eve, ETcdifon.
Willis Everett, Ni ifltriond.
ChaJes Ev/ell, 1 rin e William
John Euin, ivOjLu.gharn.
batsuel Ewmg, FEuiicli.
Wilhum Ewir.g, Bedford.
F
Nich. Fanlcon, Surry, 2 cop.
Sam. G. PEuuUeio',, IvSc
B. Fawcctt, Rcckingharr .
Phil. R. Fendeli, ril xana ia.
Wm. PenwicL, Richmond ci.
Jofeph FerguTon, Willia i ffurg
J. p'erneyhough, 1 reJuiclP g.
John Fipncy, Amcii..
J acob F iilier, i k*i G.
Adam Filter, do.
Fran. Fitzgerald, Actto. 3 co.
Thomas C. Fi-tchm, Alcem,
Pvichard Metrher, ^runiwiek.
Henry Flood, BucLi'ir'ncin.
David Flournor, Povniatan.
'1 homas Plouriioy, P. Ed a aid,
Rieh. H. Foote, -P. \\ flham,
J. Foilinet, Powliai-n.
John Fuller, AL;> .1 Via.
Peregrine Fuller, Monongalia.
I homas Foulkes, Aleckknb'g.
V/m. Fouiliee, kiHincnd on
1 homas Fox, K. WillEm.
Geo. Pravele, Shenandoah.
"VV illiam b razer, Syoriylvanla.
Archibald P retland, Manch'r.
Geo: brunch, Freueiickflburg,
James Fret well, Cumberland-
SUBSCRIBERS' NAMES.
Thomas Friend, ChefWfiel1
Reuben Fry, iVT 'i n .
Charles Fulgham, 1. of W" } t
Bartbo. Fuller, Fr^uicMb'T-g
Samuel Fulton, Augulta.
»G
Philip Gaines, Grayfon.
Elijah Gaither, Hampshire,
J. M. Gait, York county.
Mat. Gambill, Roqkingham,
Robt. Gamble, Richmond ci.
Michael Garber, Staunton*
Francis Gardner, Monongalia.
Edward Garland, Albemarle.
Rice Garland, do.
Clifton Garland, do.
Robt. Garland, do,
Peter Garland jr. Lunenburg.
Thomas Garnett, fC. George.
Henry Garrett, Louifa.
Thomas Garth, Albemarle.
Thomas Gafkins, Northumbd.
John Gay, Rockbridge.
Reuben George, Henrico.
James George, Goochland.
James. Gibbons, Philadelphia.
George Gibfon, Lee.
John G.ibfon, Dumfries.
William Gibfon, Randolph.
William B. Giles, Amelia.
David Gill^fpy, Albemarle.
Elijah Gillerr waters, Wafhingt.
Thomas Gilliat, Richmond cit.
James Gillies, Alexandria,
George Gilmer, Albemarle.
James Gilmoie, Rockbridge.
John Ginneth, Randolph.
Andrew GlafTel!, Madiibn,
James Gold, Rockridge.
Jofeph GoldihwaitV, Ba'.tim.
Philip Gooch, Amhcrft.
Francis Gooch, Nottoway.
Parke Gooda1', Hanover.
Robert Goode, Cheftei field.
John Goode, Bruofaiek.
Thomas Goode, Chefitr.Vl 1.
SarvH Goode, M-r'Uenhuig.
Benjamin Goode, Henrico.
Adam Go- flett, Grange. t
Horfcley Goodman, A!be mrle
J» hn Goodrich, IlL c Yigut.
r hco Goodwin, Fi .V Kg
Robt. Goodwyn, Sout ia'np . b
Jv hn Gooc^wyn, Gre-miVilR.
William Gopfiey, Y-\k.
Alex: Gordon, AlbemMe,
James Gordon jr. Culperer.
John Gordon, Northumberland
Nathaniel Gordon, Grange.
Michael Graham, .Bedford.
James Graham, Greenbrier.
lUch. Graham, D trr.firies, 2 co.
R.obert Graham, Wythe.
Uriah Grandy, tTMoipi.
William Grant, Prince Wil.
Robert Grattan, Staunton.
C. Graves, Chefterfield
Thomas Graves ]r. Madifon.
Elijah Graves, Mecklenbi
Francis Gray, Albemarle.
William Gray, Culpeper.
Vincent Gray, Alexandria*
John Gray jr. Greenbrier.
Geo: Gray, Richmond ci-y.
Berryman G.reen, Halifax.
Geo: Green, Richmond city.
Archibald Green, Meelclenbg.
Gticf G * ~n, Nottoway.
Robert Green, Randolpn.
Tim; Green, FieJcrickfbcrg.
Robert Gree.ihow, Winding.
Mm. Gieenhow, FredericLibg
James Greening, Albemarle,
bhadrach Greer, Grayfon.
Rooer Gregory, Henrico,
vVilliam Go-gory, Kb WillVn.
Richard Gregory, Matthews.
Rbger Gregory jr. MeckWnbg
S U B S C R I B E R S' NAMES.
Thomas GriiTin, York.
Dftn.-l Grinnun jr. Fred'bg.
John JL). Grymes, Albem'.ule.
John Guenanc jr. Gooculand.
Daniel Guerrant,' do.
John Gu'in, RPhmond city.
Thomas Gunnel), Fairfax.
William Gunnell jr. T oudon.
Wm. Gunyon, Dumfries.
H
John Hack ley, Culpepe--.
Jofeph Had en, Fluvanna.
John Hague, Richmond city.
George Hairllor, Henry.
Lewis Hale, Gray (on,
William hall jr. Halifax'.
Thomas Hall, Franklin.
William Hall, Glouceiter.
Beaj: Hall, Halifax.
Ifaac Hall, Peterfburg.
Elifha Hall, Frederick! burg,
William Hulley, Bedford,
William Hailey, Alex-r dria.
Samuel Hancock, Bedford.
.Theodohus Hansford, K. Geo.
Wm. A. Harper, Alexandria.
James Harper, Portfmouth,
John Harris, Albemarle.
Wilham Harris, Amherib.
Benjamin Harris, do.
William Lte Harris, do.
William Harris, Bedford.
John L. Harris, GoocbLnd. 2
Bern. Harriion, Richmond. 2.
James HarritOu, Brunlwick.
Theophilus Harrilon, do.
Benj. Harrifon jr. P. George,
Benj. Hanifon, Rockingham.
kiel Harrifon, do,
And'twHart, Albemarle.
Jo~n H ury, Rockingham,
Wm. Hariihorne, Alexandria.
William Harvey, Fredefickfbg
Matthew Harvey, Botetourt,
John Harvie, Rich, ci\ 2 cop.
James Harwell, Mecklenburg
-JYlafon Harwell, Suhex.
Cread HHkinr, P. Edward.
Edwd. Hafkins, do.
U. Halkim, Cumberland.
Benj. Hatcher, M<inchefter.
Gideon Hatcher, Goochland.
A lei Hath, Randolph.
Wm. Hawkins, Richmond ci.
George Hay, Peterfburg.
William Hay, Richmond.
William Hay, Grayfon.
John Haymond, Harrifon. 6
Antho. Haynie, Culpeper.
George Haywood, do.
Jofeph Heale," Fauquier.
Thomas Heaiy, Middlefex.
John Heath Northumberland.
Godlove Heilkell, Fredk'fbg.
Peter Heifkell, Staunton.
David Henderlon, Fredklbg. 6
James Henderlon, Wmfburg.
John Henderlon, 'Albemarle.
Patrick Hendren, Chas. City.
William Hendrick, Mecklenog,
George Hen'.ng, Georgia.
Ifaac Henkle, Pendleton.
John Henry, Richmond.
William Herbert, Alexandria.
William Herbert, Botetourt.
John Herndon, Spotfylvania.
fcuvvard Herndon, do.
Edwd. Herndon jr. do. 4 cop,
Wm. Herndon, Frederick'ibg.
Wm. Herri cm, Rockingham.
A, Herring, do.
James Heiter, .Mecklenburg.
William Hickman, Powfatan.
jobjr Hirks, Riciimond city.
■John Hill, CtefierHeld.
Swinfuld Hid, Frankln.
brands f I til, GreenivuM
Henry Hill, Macaoa.
SUBSCRIBERS' NAMES-
Baylor Hill, Norfolk borough, i I ,
Armiftead Hill, Peterfburg. James Innes, Richmond city,
John Hipkins, Port Royal.
Alexander Hite, Shenandoah,
J
George Jackfon, Harrifon.
John Jackfon, Randolph.
Fdward Jackfon, do.
Henry Jackfon, do.
Samuel Jackfon, do.
John Jackfon, Fairfax.
John James, Fauquic.
James James, Dumfries,
Thomas Jamefon, Henry,
Tho: Jefferfon, Montipello,
S .muel EL. Jennings, Henry,
James Jett, Culpeper.
'John Jett jr. do.
rVilliam Stark-j Jett, Weftdm
Benj. Johnfon, Orange.
George Johnfon, Fauquier.
William Johnson, H mover,
Peter Johnfon, Pri ce Edward,
James Johnfton, Prince William
Zechr. Johnfton, Rockbridge.
Richard Johnfton, Fredeiicfb'g
jjamcs Johnfton, Can line.
Amos JolifFe, Frederick.
Alexander jones^ Amelia.
Thomas Jcne-, Brunfwick.
Charles B. Jones, do.
Jofias Jones, Buckingham.
James Jone4, Caroline.
Drury Jones, Dinwiddie.
Thomas T. Jones, Fairfax,
Frederick Jones, Goochland.
William Hobfon, Cumberland.
IvL Holloway, Mecklenburg.
John.Holman jr. Cumberland.
Hugh Holmes,' Winch'r. 2 co.
John Holmes, Mecklenburg.
James Hok, Norfolk county.
Johq Hok, Surry.
Patrick Home, Stafford.
Robt. H. Hooe, P. Willi im,
Lawrence Hoof, Alexandria.
Jojin Hook, Franklin,
John Hoom<?s, Caro'ine;
Thomas Hooper, Richm'd cit.
James Hopkins, Albemarle.
Samuel Hopkins, Mecklenburg
John Hopkins, Richmond city.
Kellis Hord, Stafford.
Jofeph Hornfby, Williamfburg.
John Hofkins, KL. and Queen
Geo. Houfton, Rockingham.
Robert Houfton, Greenbrier.
William Howard, York.
James Howlett, Amelia.
William Hoxfey, Greenbrier.
H. Hudgins, Matthews.
Chriftopher Hudfon, Albemarle
Francis E. Hudfon, Amelia.
Daniel Huff, Brunfwick.
James Huff, Lee.
Peter Hull, Pendleton.
Alex. Humphreys, Staunton.
Tisomas Humphrey*, Campbell!Mi netree joner, Gn yfor..
T. Hungerford, Weftmorelanff Callom Jones, Richmond city.
Benjamin Jones, Henry.
Thomas'A. Jones, Mecklenbg,
John P. Hungerford, do
Heafant Hunnicut', Suffex.
David Hunter, Berkley. 2 cop. Francis Jones, di
Charles B. Hunton, AlbemarleJJohn Jones, br--deikkfburg
Ifaac Hurft, Lancafter. [Will.am Jones, do.
Thomas Hurft, Northumberland Howel Jotv.s, Suffex.
John Hutch in foil, Greenbrier. John Jotd-n,, Shenandoah.
Danid L. Hykon, Henrico. | ,
'.I'L 5 C R I B E R S' NAME S,
Rj hert Jouett, Chailoftfville.
Fdw. Jnnrdar, Lunenburg.
Charles Julian, Frederick fburg
, K
David Keane, Fotetourt. 7 cop
John Kearnes, Portfmouth.
John Kearfiey, Berkley,
James Kee, Surry.
Abraham Keen, Mecklenburg
William Keene, Halifax.
Thomas Keith, Fauquier.
Henry Keller, Shenandoah.
t John Kelly, Charlottefville.
Thomas Kemble, Culpeper.
"William Kennerlley, Augufta
J. Kent, Montgomery.
Thomas ICer, Cumberland.
John R. Kerr, Albemarle.
John Key, do.
Joftiua Key, do.
Tandy K«°y, do.
George Kiger, Winchefter.
Peter Kinder, Wythe.
Thomas King, IHe of Wight.
Robert King,- Montgomery.
Miles King, Elizabeth City.
7 hornas Ivinkead, Augufta.
Chifley Kinney, do.
Jacob Kinney, do.
Jofeph KirkbriJe, P. William.
Jeremiah Kirtlev, Mndifon.
Francis Kirtley, Rockingham
St. Clair, Kirtley, do.
Conrad Kremer, Winchefter.
Jacob Kuhn, Fredcfickfburg.
Jacob Kyger, Staunton.
' L
p.enjamin Laeey, Albemare.
David Lambert, Richmond ci.
Nathaniel Land, Southampton.
George Lane, P. William.
William N Lane, Weftmoreld
Thomas G Langley, Richmd.
David Lrnrer, Henry.
John Laprad*, Goochland.
Robert Latham jun. Culpeper.'
Peter Lauck, Winchefter.
Geo: Laughlin, Richmond ci.'
William Lawrence, Louifa.
Harry Lawrence, Hanover.
Henry Lawfon, Lancafter.
John Lawfbn, Dumfries,
klift}a*Leak, Goochland.
Walter Leake, Albemarle.
Henry Lee, Weftmoreland.
Charles Lee, Alexandria.
Ludwell Lee,. Fairfax.
Henry Lee, Colchefter.
Thomas Ltc fen. P. William.
Philip Lee, Weft morel and I
Wm( Lud. Lee, Gr. Spring.
Thomas Leftwichy Bedford.
Joel Leftwicb,' do.
ohn Legg, Fredbg.
Ezekiel Le -y, Richmond co,
Robert W. Lewis, Albemarle.
Charles L. Lewis, Albemarle.
James Lewis,- do.
Andrew Lewis, Bath.
William Lewis, B-vtetourt.
Warner Lewis Glo'fter 2 cop.-
Benjamin Lewis,-. Henrico.
Thomas Lewis, Kanawa.
Henry Lewis,- Madifon.
John Lewis, Mecklenburg.
James Lewis jun. Fredericfcfbg.
Hovvel Lewis* do.
Henry Liggors, P. Edwards
James Lilly, FFederitkfburgl
John Lincoln, Rockingham.
Georle Line, Shenandoah.
Reuben Linbfav, Albemarle.
Alex: Lithgow, Dumfries.
Charles Little, Fairfax.
John Litflejohn, Loudon.
Richard Littlepage, Hanover.
John LockweoJ, Alexa. 3.0.
Ralph Loftus, Rockingham^
Williem Lamphier, Alexandria. Thomas Logwood, Bedford.
SUBSCRIBER S' NAME S*
WiUiam Logwood, Cdefierfd. James S. Matthews, Porffnnh.
Edmund Logwcod, Powhatan. E.. AJaule, Richmond.
William Long, Richmond city. I John James A'lauud, Wtftm.2.
Wjlliam Long,^Greenbrier. Fontaine Maury, Frcdeii.-Afbg.
Robert Maxfiddy Randolph.
James Alaxw.d), Berkley.
William Mayo, Henrico.
John Mayo, Richmond city. 21.-
George Mayc, Cheflerficl-.L
Jofep.. Mtze, Bath.
John M'Biide, Rockbridge.
Peter Lott, Charlottefville.
Samuel Love, Loudon-
Alexander Love, Norfolk.
William Loveil, Fredetickfbg.
William Loving, AmherlH
John Loving jun do,
Lech, Lucas, Frederickfburg.
Thomas Lumpkin) Bedford,
James Lyle, Manchefter.
William L\]e, Rockbridge.
Peter Lyons, Hanover.
W.llntni Lytic, ICentncky,
U ^
James Alacbir, Hardy.
Fhomas Macon, Hanover,
James Madifon jun. Orange. 2.
Thomas Madifon, Botetourt,
William Majlory, I. of Wight.
William Mallory, (Grange,
William Manibn, Hanover,
CharFs Marckle, Bedford.
George Markham, Cheiierfield,
Bernard Markham, do.
V.* Markham, Powhatan.
John Aiarfhail, Richmond city.
P. ADrff iler, Alexandria.
Iludlojj Martin, Amhtj'lf.
George Martin, Albemarle.
Fleutauc Ala:tin, Amite;it,
JoLph Ala:tin, Herry.
William Aiartir, Uarnfon.
Jo'eph Ma (on, 1JiunAvick.
Thus. Malum, Richmond ci,
Fr.och Alaicn, Stafford.
John Malon, Suffcx.
John Malon jun. do.
William Alaiienburg, do.
fames M'Catnpbcll, AmherfR
Chas. T. M" Carry, Rtchd. co,
Vv illiam Rl'Carty, do.
Brtholomevv A i'Party, do.
Enoch M'CartV, Waibi -.g/'-tp,
Daniel M'Catcy jr. WtOm. 2
James Ad'Chefney, Auguim.
Charles Al'Clain,
William AT C leery, Monqnga.
James ATCkTan, Charlotte:
James Ai'Cler.ahan, ATbon,
James M'CRnny, Nanfemond.
ChriPopher M'Connico, Petbg,
John ATCoull, Culpeper.
John Al'Cov, Gray-on,
Oliver Al'Coy, Pendleton.
Samuel AT Craw,' Richmoml ci,
James M'Craw jun. Halifax.
•William M'Craw jr. Peteribym-
{Geu: M'Creedie, Man eh (Me:.
John Al'Creery, Dumfries.
Robert IvPCulloch, Staun c,
Andjew M'DovH, Amhurit.
1-obert M'Dowel, Staunton,
James ATDowel, P.oekbridge,
James ATFarJane, RuAdl.
4RD. A'i'Gavock, "Wythe.
Randal rVI'Guvo. ic, do.
Archd. AFGil'j Yv inchede*#
Andw. Ai'henry, Alontg.
(James M'lllrain, Loudon.
Cargil Alaffenburg, Peterfburg.'John AJ'intire, Ohio
Richard Matthews, Auguida,
Thomas Matthews, Norfolk.
Jeremiah Al'Kay. See iandor.h.
^Wiiiiam Ai'Klee, Rockbridge,
SUBSCRIBE
R S' NAME S.
M
Greerberry G. M'Kensie, Gr.
Duncan Al'Lauchlan, Columbia
L Ai'Nair, Richmond city.
John ATNeal, Culpeper.
William M'Pheeters, Augufla.
Alexander Al'Rae, Dinwiddle.
Archibald M'Rae,- ATancheiter.
A. M'Rrbcrt, Richmond city.
Everard Meade, Amelia,
David Meade, Amelia.
Andrew Meade, Erunfwick.
R( bert A'iean1,, Richmond city.
Robert Mctd'e, Alexandria,
li.iac Medley, Ha) fax.
Ambrofe Mecley, Madifcn.
John Mercer, Frcderickfburg.
Robert Merc-r, do.
M'rn D. M'ui wether, Albem,
Cnarles Meriwether, do.
Thomas Meriwether, Looift.
Prettvman Merry, Grange.
Jacob Mich'eaux, Pcvyhatm.
William Michie, Albemarle,
John Michie, Louifa.
David Michie, do,
Laac IMilh r, Charloftefvillc..
Samuel Miller, Augufta.
1 hurra> Miller, Port R'-val. *
Thomas Miller GoochhnJ.
Heath J. Miller, do.
John M'ber, Botetourt.
Alt nan Mills, Albemarle.
JoRph Milic, .do.
George Ma o", Fairfax,
Dabney Minor, Richmond ci.
Gasrit Minor, Louifa. '
John Minor jun. Frederickfbg.
Pbomas Minor, Spotfylvania.
Tohn' Milder, Plenry. ' '
Thomas Mitchell, Wafhington.
7"homas Mofiett, Augufta.
Thbtnas Molloy, R. Edvvd. 2.
To>. Tones Monroe, AJbemgrle,
John Montgomery, Wythe.
Samuel Moody, Richmond city.
Moody & Price, do* 13 copies.
Edward Moore, Albemarle.
Thomas Mooie, Amherit.
Cato Mocre, Berkley.
Texafider Moore, Cb. City.
Cleon Moore, Alexandria,
Jvfie Moore, do.
James Mocre, Rockbridge.
Andrew Moore, do. '
GideOn Morgan, Staunton.
;>im"ti Morgan, •Fauquier.
John Morrp, Campbell.
William Morris, Kanawa,
Alexander ATorhtn, FJmouth.
L. J. Morton, Charlotte.
William Ado: ton jun. do.
Jacob Morton, do.
James Mrtrcon, Prince Edward.
Wade Mofby, Carttufville.
Samuel Mofn\? Richmond city.
Pvidiaid AmoPd)-, Powhatan.
Liit, AJofhy jr. do.
CharP.s AT of. ley, Buckingham,
Hnhrv Adoftlc), Charlotte.
Edward RE Mey, CheiterfitId.
Abxander AToitley, Norfolk,
Peftr Aloft: ley, Powhatan. *
Wd.liam iVJofeiey, do.
William Ail oft ley jun. do.
Thomas iVlountjoy, Stafford,
Samuel Aiulferd, Richnv nd ci.
tuiw. E. H. Alullin, Berk. 2co.
Edward Munlford, Powhatan. •
John Mur.de:], Shenandoah.
William Munfo'rd, Adecklenburg
Weat Munion, Hanover.-
Wiiliam Adurray, Amelia.
Samuel Mtirrell, Albemarle.
James Mufchett, Dumfries.
, Richard M'ul'c, Weitmoreland,
A. Aluftoe, Bath.
Moles A. Myers, Gcochlaada
SUBSCRIBER S' NAMES.
N
Alexander Nairne, Fredsb'g.-
Matthew Neale, Fauquier.
W. Neely, Wythe.
William Neile, Lee.
Ahra. Neil!, Winchefter,
Alexander Nelfbn, AugufH.
Wm. Nclfon jqn. York,
AViil. Nelior, WeftmortLnd.
James Newby, Frederickfbg.
Latham Newfom, Suffex.
Wil'oughhy Newton,' Weftm.
Wilton C, Nichula
John Pace, He pry.
Mann Page, Mansfield. 2 cop#
Robert'Page, Winchefter.
Marcus Ptpne, Suffex.
John Pancake, Randolph.
David Pannill, Pitfylvania,
Thomas Parker, Frederick.
J, Parker, Ifle of \Vight.
Andrew Parks, Frederickfburg.
David Parry, Augufla.
Ifaac Parlous, Hampfliire.
Albemar. (Matthew Pate, Bedford.
John Nicholas, do. 0 cqp.'David Patterlon fen. Buckingb.
John Nicholas, Stafford. Nelfon Parerfon, Cumberland.
Charles Nicholfor, Suffex. John Patterfon, Matthews.
J. B. Nickels, Alexandria. J. Battelfon, Noitowav.
1 homas Nicclfon, Richm. 12.James Patterfon, Pendleton.
ijames Patillo, Charlotte.
' Robert Patton, Frederickfburg.
jWilliam Payne, Fairfax.
William Nirnmo, P.'Anne
bo.
James Nimmo, Norfolk.
JohnNivifon, do.'
Theodeiick Noel, Effex. |
BaCilNoo:, Culpeper.
Thomas Norman, do.
Richard Norrf, do. 1 cop.
Bep'imus Norm, Fauquier.
Philip North, Sraunton.
Willb'm'Nv rveil jr. Lvnchb'g.
Reuben Norvell, Amherlt.
Thomas Norvell, Richmond ci.
Spencer, Norvell, Albemarle,
O
J-.hnOld, Albemarle,
jsmes Old, do.
John'Oliver, Bath,
Benjamin Oliver jr. Hanover.
Thomas Oliver, Dumfries.
James Oliver, Galrolinc.
Benj. G Orr, Weitmoreland.
Enoch Ofoorne, Grayfon.J
Frazier Otee, 'Bedford.
Edward Owens, Norfolk bo,
Archer Payne, Goochland.
Reuben Payne, Henry.
Benj. Payne,Norfolk borough,
William Payne', Pitfylvania.
William Peachy, Richmond co,
Richard Peacock, Frederickfbg
George Pene», Rockingham.
Philip Pendle'on, Berkley.
Edward Pendleton, Culpeper.
James Penn, Campbell.
George Penn jun, Patri'ck.
Derick Penmbarker, Shenand.
Arch: Perkins, Goachld.
George Perkins, do.
Daniel Perkins, Wafhinglton.
James Pettigrew, Frederickfbg,
Benj. Pettit, ' Stafford.
William Pettway, Greenfville,
Edward Pettway, do.
J^ Peyton, Winchelter,
Val. Peyton, Stafford.
Wifliani Philips* do?
SUBSCRIBERS' NAMES.
W illiarn Philips, Louifa.
Geo. Picketr, Richmond cry,
Thomas Pierce, Ifle of Wight.
John Pierce, James City.
Ranfdell Pierce, Weftmoreland.
John PiUon, Bath.
Thomas Findeli, Monongalia.
Lee Pittman, Wettmorciand.
I(artc W. Pleafant.s, Goochland.
Samuel Pleafunts jr. Richmond.
Ge >rge Poage, Bath.
\yiii» m Poagt, cio.
Jjhn Peindexter jr. Louifa.
Robert Pollard, puchmorj ci.
Richard C Pollard, Albemarle.
Thorriris P <liard, pairMx.
Vv'i liarrt Ft Hard, La. c /or.
Robert Pclrard, K. & £>ueen.
FGtmniel Pope jun. Hanover
^Vh.ham Pope, Goochland.
X^athaniel Pope, Gravfon.
Alexander Porter, Greenbrier.
Robert PcfierHhld, AuguMa.
Thomas Pefcy. Sputfylvanja.
po'tie and Dirk, I oui fa.
VGJiam Poweir, Randolph.
William Prentis. Peiciiourg.
J. P- ilc^, Montgomery, i co.
Robeyt Prefion, WaSiiington.
Francis Pteden, "do,
Walter Pr.fror, do.
V/iliiarn Pnce, fIctirico«
James Price, do.
William Price, Louifa.
Richard Price ten. Puiftll.
Richard Price jr. do.
Richard Price, Albemarle,
Daniel Pi,ice, Piincc Fdwardi
Wilharp Prichard, Richm. 20,
John Priddy, Hanover.
Thomas Pi oiler, Henrico.
Chriftopher Fryor, Glo'fter.
J. Fryor, Richmond city.
Allyn Fryor, Kanavta.
]chn PurnalL P. Edward. 2 co.
Robert Q^iarles, Fluvanna.
John Qjarles, Columbia.
A.. Quarricr, Richmond city.
R
William Radford, Richmond,
Druty Ragfdale, K. William.
'Charles Rails, Stafford.
James R?rr.fay, Auguffa.
Henry Randolph, Chef erfield,
Richard Randolph, Henrico.
Peter S. Randolph, do.
Bret* Randolph, Powhatan,
John Rant'dell, Fauquier.
Richard RatcHfFe, Fairfax.
James Reaburn, Montgomery,
J, K. Read, Norfolk bjrougtu
Thomas Read, Charlotte.
Thomas Read jyn. do.
Clement Rea4> do.
John Nafh Read, do.
William Reat, Frederickfburg.
John Redd, Henry.
Vincent Redman, Richm'd co,
Samuel Read, Berkley.
B. Reedpr, Monongalia
rhoma^ Rein, Campbell.
Jam«.s Re id, Damfries.
Rf.bert Rpnn.ck, Greenbrier,
William Rcnnjck, do.
Sthrefhley Renin lrte, LfieX._
Henry Refpels, Matthews,
Benjamin Rice, Bedford.
John Rice, Rockingham.
VV illi am. Richards, C» -Ipeper.
Arch. Richardfon, Suffolk. 13.
William Richardfon jr. J. City
Samuel Richardfon, Fluvanna^
Jordin Richardfon, Greenfville.
Jonathan Richefon, Franklin.
John 1 homas Rickets, Alexia.
WiKis Riddicka Suffolk*
SUBSCRIBER 3' NAMES.
Jofiah Riddick, Nanfemoftd.
James Rind, Richrn'd city.
Jacob Rinker, Shenandoah.
Nathaniel Rivers, Greenfvitle.
Richard Rixey, Fauquier,
Thomas Roane, Middlefex.
William Roane, do.
Alex: Roane, Frederickfburg.
Pleafant Roberts, Amelia.
Thomas Roberts, Halifax.
John Robertfon, Louifa.
Matthew Robertfon, Amelia.
William Robertfon, Augufta. i
John Robertfon, Franklin.
Wm.- Robertfon* Richmond cj.
W. Peter Robertfon, Notto* 2.
David Robertfon, Peterfburg.
Merit M. <Robinfon, Smkhf'd.
Benjamin Robinfon, Albemarle
William Robinfon, Rockinham
William Robinfon, Spotfylvanta John B Scott, Halifax.
William Robinfon, Montgom. Johnny Scott, Orange
Match* Rodes, Alherparle. 2co. FhomaS Scott, P. Fdvyard*
Robert Roebuck, Madifon. Daniel Sears, Randolph.
Achilles Rogers, Albemarle^ 'John Seawtll, GLucdler*
C. Rufllll,
do.
Jfaac Sallie, Chelderneld.
John Salmon, Henry.
William Salter Surry.
Flyman Samuel, Richmond cii,
Philip Senium, Qluaceder.
David Saunders, Rrdnrd.
Thomas Saunders, Jhunfwkk*
Peter Saunders, Fr^nklm.'
Chancellor H. Sauod"r% Powb.
Nath. L. Savage, i\r* Kent.
Sampfcn Sawyers, Botetourt.
Robert Sayets, Wythe.-
Cornelius Schenk, Charlottfv'lle
Samuel Scherer* Richmond
John Scott, Albemadg.
Samuel Scott, Campbell,
Bird Rogers, do.
George Rogers, Fauquier.
Thomas Rogers, Hanover.
James Seawrigh^ Auguliii,
,William Segar, Middkiex.
Abel Seym'our, Hardy.
Andrew Ronald, Richmond ci.'Lyne Shackleford, K, & Queen:
Edmund W. Rootes, do. * Andrew Shunkling, RoCiiingh.
Thomas-R. Rootes, Fred'burg Barvel Sharp, Henrica,
Jelle Roper, Richmond city, Leonard Shaw, Wythe.
John Rofe, Amheril.
Robert Rcfe, Fauquier.
Wm. Rofe, Richmond city.
Berj B. Roller, Suiilx,
Jc.hn Rowland, Henry.
Beverley Roy, Eflex,
Hugh Roy, Spotfylvania.
John Royal, .Amelia
Martin Shearman, Lancafteiv
Daniel ShetFy, Wythe.
Samuel ShtiH, York.
Jofepli SYI'o.'.j AmfrerlL
Jvihil Shek'Jji, Co.ichLi.d.
Robert bhflhr, Co.
Thomas Shelton ien. Louifa.
James SheLon, do.
William Royfter, Goochland. Robert Shcicon, Norfolk co.
William Royllerjr. do. -Ctifpin. 6'hekon, Pittfw ■ nL«
Reuben Rucker, Orange. John M. Shepherd, Rjchmu J*
George Bannocks, Randolph. Edward Shepherd, Fredbg.
George Ruffin, P. George. Sheirari Alexander, Win 14.
SUBSCRIBERS' NAMES.
William Shields, Powhatan.
Thomas Shore, ChefLrficld.
John Shore, Prince George.
Samuel Shrewfbury, Bath.
John Shrewfbury, do.
Thomas Simmons, Brunfwick:
Richard Simpfon, Fairfax:
James Sims, Albemarle.
Ifaac Sitler, Winchefter:
•George Sk'llern, Botetourt:
Wm: P: SldUern, Wafhington:
John Skinker jun. K. Geoige:
Philip slaughter, Culpeper.
Samu1 Slaughter, do.
SmiO laughter, Berkley.
David W. Sleth, Randolph.
1 ho..v.3 Smell*., Ifle of Wight.
Thomas E. Smith, Charlonelv:
Geo: W: Smith, Richmond ci:
Alexander Smith, Alexandria:
Stephen Smith, Franklin:
Thomas Smith jun Manhews:
John Smith, Mauilhii. 2 copies:
Ifaac Smi h, do.
John Smith, Pitplvania:
Jofiah Smith, Powhatan.
Martin Smith, P. Edward.
James Smith, P. "William.
Charles Smith, Richmond co.
Benjamin Smith, Rockingham.
Henry Smith, Ruflell. 2 copies
John Smith, do.
John Smith, Spotfylvania.
Francis W. Smith, Weftmo.
James Smock, Frederickfburg.
Robert Snoddy, Campbell.
William Southall, Charles City
John Southall, Su^ry.
Wright Southgate, Rich. ci. 4,
Thomas Spencer, Chailotte.
Gideon Spencer, do.
Thomas Spilman, Culpeper.
Geo: W. B, Spooner, Fred'bg
John Spo'.fwocd, Orange.
Eathan Sj ringer, Monongalia.
And. Sainton, Fred'bg. '2 CO.
Larkin Stanard, do*
William Stanton, Culpeper.
Alex. St. Clair, Staunton.
John Starke fen. Hanover.
Thomas Starke, . do.
John Steelej Richmond city.
Andrew Steele jr. Augufta.
Robert S'ephen, Berkley.
Lewis Stephens jr. Frederick.
D. Stephenfon, Augufta,
fames Steptoe, Campbell. 2 co
fohn Stewart, Spotfylvania.
Bartlet Still, Richmond city.
JohnStith, Branfwick.
fhomas Stith, do.
John Stockdell, Henrico.
D. Stokes, Mecklenburg.
Wm. I: Stone, Richmond city.
Caleb Stone, Fluvanna.
William S. Stone, Frederickfbg
G. F. Straas, Richmond city.
Thomas Strachan, Spotfylvania
James Strange, Manchefter.
John Stratton, Northampt. 13,
Parke Street, Hanover.
Antho. Street, Lunenburg.
John Strode, Culpeper.
John Strother, do.
1»avid Stuart, Fairfax*
Alex: Stuart, Lynchburg.
Beverley Stubblefield, Spotfylva.
William Summers, Fairfax.
William Sutherland, Ohio.
Robert Suttington, Bath.
Thomas Swann, Loudon.
Thomas Swepfon, Suffolk.
Flower Swift, Grayfon.
Jacoo Swoope, Staunton.
Epa. Sydnor, Halifax.
Thomas Sydnor, do.
T
Philip Tabb, Gloucefter.
Thomas Tabb, Matthews.
SUBSCRIBERS' NAMES.
Edward L. Tabb, Mecklenbg.
Willifton Talbot, Campbell.
Kader-Talboth, Norfolk.
John Taliaferro jr. IC. George,
Law. Taliaferro, Orange.
Meriw. Taliaferro; Fred'burg
James Tanner, Randolph.
Geo-ge Tarry, Mecklenburg.
Magnus Tate, Berkely.
li. Tate, Richmond city.
William Tate, Wafhington.
John Tate, Augufta.
Charles Tatham, Richmond ci.
Thomas A. Taylor, Cheftert'd
Stficey Taylor, Loudon.
William Taylor, Lunenburg.
John Tavlcr, Mecklenburg.
Charles Taylor, Montgomery.
Geo: C. Taylor, do.
Wiliiam Taylor, do.
James Taylor, Orange. 2 cop.
Robert Taylor, do.
Geo. K. Taylor, Peterfburg.
John Taylor, Southampton.
Creed Taylor, Cumberland.
James Ternan, Richmond ci.
Chiles Terril, Albemarle.
Wm. Terry, Bedford.
Paul Thilman, Hanover.
John V. Thomas, Alexan. 24
Rowland Thomas, Richm. cir.
John Thompfon, Kentuckey.
Phil. R Thompfon, Culpeoer.
Thomas Thompfon, Franklin.
William Thompfon jr. Halifax
Thomas Thompfon, Rich. ci.
John Thompfon, Ruflell.
Smith Thompfon, Staunton.
Jofiah Thornborougb, Beikley
Anthony Thornton, Caroline.
John Thornton, Culpeper.
Fran. Thorn.on, Spotfvlvania.
Reuben Thornton, Amherft,
Jefle Thornton, Richmond ci.
Elijah ThreeKeld, Stalfbid.
Wm. Throckmorton, Stamt.
Archibald Thwe.if, P. George
Pdw. TiiHa, Beikley.
Roger Tilman, Brum wick.
John Timbeiiake, Fluvanna.
Thomas Tinfley, Hanover.
Charles Toil, Caroline.
Henry Toler jr. Richm. city.
Morgan Tomkinc, Glo'fler.
Walker Tumliu, Ricum. co.
Jofeph Tomlinfon, Ohio.
Chrifto. Tomkins, K. William
Henry Towles, Lancaller,
Stoekley Towles, Spotfylvania.
John Townesjr. Amelia.
James Towr.es jun. do.
William Townes, ChefteiGcld.
Halcott Townss, Halifax.
Jofeph Towns, Mecklenburg.
Moles Tredway, P. Edward.
John Trezvant, Suhlx.
John Trigg, Bedford.
William Trigg, do,
Wm. Trigg, Spotfylvania,
Titus Tripkct, Fairfax.
Hart well Tucker, BruuRvick.
Joieph Tunftall, Louila.
William Tunftall, Pitfylvania.
Richard Turberville, Weffm.-
Geo. Turnbull, Fiankiin.
George Turner, Caroline.
Charles Turner, Alexandria.
StoGkley Turner, Halifax.
Horatio Turpin, Powhatan.
Richard J: Tutt, Culpeper.
Samuel THer, Cfurks City.
Tnomas G: t>. Tyler, Siailurd
V
Jofeph Vaiden, Charles City.
M. Vandewal1, R'ch. rity.
Ilaac Vanme-c,, Hardy.
Henrv Vaughn, Chai.es City.
PL;;d Vaughan, Gray/on.
i
SUBSCRIBER S' 'NAMES;
Thomas Vaughn, Mecklenb,
Reuben Vaughn, do.
Samuel Veale, Portfmouth.
Nicholas Vols, City of Wafh't.
Henry Vowles, Stafford.
W
James G. Waddcll, Albemarle
Nathaniel Waddeil, Loiiifa.
Samuel Waddy, do,
James Wade jr. P, Edward.
Andrew Waggoner^ Berkley.
Obed Waite, Winchefter.
Arthur Wale up, Rockbridge.
Brands Walker, Caftle Hill,
Joel Walker,. Bath.
Wyatt Walker, C. City.
James Walker, Winchefter.
William Waker, Madifon.
James Walker jr. do/,
Joel Watkin®, Buckingham.
Henry A. Watkins, Charlotte;
T. Waikins, Chefterfield.
Jofeph Watkins, Goochland.
Francis Watkins, P. Edward.
Claiborne Watkins, Waihingtn.
John Watfon, Milton.
Robert Watfon,- Brunfwick,
John Watts, Bedford.
Richard Waugh, Culpeper.
James Waugh, Fairfax.
Lewis Waugh, King-George.
John Wayte, Rockingham.
William C. Webb, Orange.
Wm. Wedderburn, Amherft,
Jofeph Weem, Lunenburg.
Jofeph Weifeger, Peterfburg.
Robert Wellford, Fredkfbg.
John Wells, Henry.
Charles Wells, Ohio.
William B. Wallace, Stafford. James Welfti, Greenbrier.
Geo: Waller, Henry.
R. H. Wader, Williamfburg.
William Waller, York.
William Wall is, Culpeper.
Edward Wahfe, Augufta.
Arch: Walthall, Chefterfield.
William Wamfley, Randolph.
F'i i'urd Ward, Amelia.
\\ i darn Wardy Bath,
tie h Ward, Chefterfield.
He .ry V ~rd, Culpeper.
rden, Richmond cL
Thomas Weft, Albemarle.
John Weft, Fairfax,
Roger Weft, do.
Ifaac Weftfall, Pe«dleton.
John Wetherall, Madifon.
Francis White, Hampftiire.
John White, Bath.
Samuel White, Charlotte.
Chapman White? Fluvanna.
Alexander White/ Frederick.
William White, Norfolk.
{William White, Orange. .
John ^
WM a \\ irdlaw, Cbarlottefv'Matthew Whiteman, Randolph.
F ' . H. Vfare, Fluvanna
Low aid Wrti-ren, Charles City.-
Vv t iTii Warv/ick, Amherft
J ihn Warnck, Bath.
Vr . W?(b, Lruila.
Ttiorras Waihington, Brunfwk.
I i.flirod Waiiiington, Ricfimd
Henry Wafhington, P. Wm.
Corbin WHhingtcn, Weftmd
Wm. A. Waflftngton, do.
A Waterman, Rockingham.
Peter B. Whiting, Glo'lLr.
John Wiart, do.
William Wiatt, Frcdcrickfbg:
John Wickham, Richmond cii
laities Wiggimon, P: William.
Hez; L Wight, Richmond ci.
George Wilcox, Lee.
James Wiley, Fairfax.
John L W ilk ins,
W. W. WHkins,
Brunfwick.
Greenfvftle,
SUBSCRIBE
RS' NAME S.
James Wilkinfori, Sou'hamptn.
William Williams, Halifax.
J: Williams, Monongalia.
William C. Williams, Culp'r.
Ifaac Williams, Harrifon:
F: Williams, NortoL borough:
John Williams, Dumfries.
David Williams, Richmond co.
James Williams, d©.
John Williamfor. jun. Henrico.
George Williamfon, do.
Geo: WilJiamfon, Powhatan*
Thomas Willock, Norfolk bo:
Benj: D. Wills, Fluvanna.
James Wills, Ifle, of Wight.
Emanuel Wills, do.
Mills Wills, do.
William. Wilfon, Augufta.
James Wilfon, Berkley.
Matthew Wilfon, Botetourt
James Wilfon, Buckingham.
John Wilfon jun: Halifax.
William Wilfon,'Harrifon.
David Wilfon, Hardy.
Thomas Wilfon, Monongalia.
Vv illis Wilfon, Portfmouth.
Wilfon jun: Norfolk co.
Wm: Wilfon, Randolph.
Wm: Wilfon, Frederickiburg.
Willis Wilfon, Surry.
'Jofiah Wilfon, do.
T: Wilfon, city of Wafiiingtn:
John Wimbifh, Halifax.
Charles Wingfield, Albemarle.
Cbrift^pher Wingfield, d©.
William Wirflovy, Spotfylvanid.
William Wirt, Albemarlej
Peter Wife, Alexandr.
Wm: Wileham, Richmond ci.
Thomas Wifhart, Suffolk.
David Wood, Albemaile.
jameS "Wood, Richmond city.
J: Woodford, Carol ine.
Wm: C: Woodford, do.
Andw: Woodrow, Hainpfh. 2.
William Wood*, A lot mule.
James .ads, An h -fr,
james Tpd?, Monfg< f \
ArchbaM Wood*, Ohio.
TarlCbr vVoo To", Al' ■ntiW*:
Gb©'^ V odfo'n, Chelierfi Id.
1 ill W »..>dfon, Cu-nbtrLi. ;
Blake B: WooaCn, do.
John Woodfon, do.
Samuel Woodfon, Gooch'and.
Frederick Woodfon, Powhatan.
Farlron Woodfon, P: Edward,
Jrcob Wooclf m, do.
William Wt.ott?n, do.
John Wormingto-*1, Noif. co.
Phomas Wienn, I. of Wight.
James Wrenn,' Fairfix.
John Wright, Orange.
Cornelius Wynkoop, Berkley,
George Wythe, Richm. city,
Benjamin Wythe, Suiiex.
Charles Yancey, Albemarle.
Jotl Yancey, do.
R. H. Yancey, Culpeper.
Robert Yancey, Loujfe.
Jofeph Yarborough, L; yenbg,
Thomas Yerb), Ikichm. co„
Robert Young, Alexandria,
James Young, L of y/ight.
james Young, Pornmomh.
John Young, Rocklur-'ge.
A. Yuille and Co. Richmond.
Phe^ezer Zane, Ohio.
Rfuben Zimern;an, Culpeper.
Qemo/w THE i-4'cu
NEW VIRGINIA JUSTICE,
/ COMPRISING THE •
OFFICE and AUTHORITY
OF A
JUSTICE OF THE PEACE,
IN THE
Commonwealth of VIRGINIA,
together
With a variety of useful PRECEDENTS
adapted to the LAWS now in force.
To which is ^dded,
An APPENDIX containing all the moft approved forms of
Conveyancing, commonly ufed in this country,
Such as Deeds, of Bargain and Sale, of
Leafe and Releafc, of Trull, Mort*
gages, &c.—Alfo the duties of
a Juftic&of the Peace arif-
irig under the laws of
the United States.
By WILLIAM WALLER HENING,
Attorney at.l*w-
RICHMOND: Printed by T. NIC OLSON, 1795,'
Diftridt of Virginia o twit.
t>v BE it remembered that on the third
day of May, in the eighteenth year
' of the independence of the United
L. S.flf States of America, WILLIAM
WALLER HENING, attorney
at law oj the jaid diflrlB, hath
drp fited in this offict the title of 4
book% the right whereof he claims as author thereof ,
In the words following,, to wit; The New Fir-
' ginia Jail ice, comprifing the office and authority
* of a juflice of the Peace in the commonwealth of
4 Virginia, together with a variety of ujifulprece~
4 dents adapted to the laws now in forcei To which
4 is added an appendix containing all the mojl ap~*
4 proved forms of conveyancings commonly ufed in
4 this country, juch as deeds-, of bar gam and fale9
4 of leafe and releafe, of trujl, mortgages, &c —
4 Alfo the duties of a jujtice of the Peace a Vying
4 under the laws of the United States A In conform
mityto the aB of the Congrefs oi the United States,
entitled An adt for the encouragement of learn-
ing, by fecuring the copies of maps, charts, and
books to the authors and proprietors of inch copies
during the time therein mentioned.
WILLIAM MARSHALL, c. v, s.
T O
The SUBSCRIBERS,
W H O, by patronizing this perform-
ance, have evinced their difpofition to
encourage whatever may have a tenden-
cy to promote the public good,
This work
Is refpedtfully dedicated
By the author
WILLIAM W. HENING.
THE
PREFACE.
TH E importance of the fubjedt, of which the author has
treated in the following work, has created, in him, an
unufual fhare of diffidence, in fubmitting it to the public. He
is fenfible that even on the moft extenfive plan, it would have
been a work of immenfe difficulty to convey the neceflary infor-
mation on all the various objects which fall und^r the jurildietion
of a magiftrate, both as a confervator of the peace, and as a
judge of record. But when, in attempting this, he was con-
fined to the narrow limits of a Angle odtavo volume of fix bun-
dred pages, the difficulty became confidcrably greater, and his
hopes of attaining to any,degree of perfection, were proportion-
ably diminiflied. It may, indeed, be afked, why was the plan
of the work fo limited, as to preclude the admiffion of every thing
which related to the office cf a Juftice of the Peace in his ie-
veral capacities ? To thofe, who confider, that, in this flate,
the only compenfatlon which a magiftrate receives for his fcrvi-
ces, is, a confcioufnefs of having a died from patriotic motive^
in the acceptance cf a laborious office, and thus difchargmg his
duty as a member of fociety, the anfwer is obvious. Fiugality,
then, became an eflenlial part of the plan —But the author would
by no means infer that his attention to that point, has drawn him
into a negledt of the more ufefu! parts of the publication. He is
well allured that in comparing this treatife with any other now
extant, it will be foupd to contain not only more ufcful inform a-
tion on the fame fubjedis, but a greater variety of precedents,
befides feveral additional titles, unnoticed in any other book of
the kind hitherto pubiithed either in Gieat Britain or America.
Dodlor Burn's Juftice published in Lngland, and Mr. StuLe's
in Virginia, have long aflorded confidcrable affifiance to'our
Magiltiates. But as the former was calculated to" the meredian
of the country in which it was written, and the latter was pub-
liflied duiing cur fuhjedfion to a regal government, and before
our laws had acquired any degree of {lability; it cou! 1 not cfcape
the obfervation, of any psrfon, from the molt iupcrftcial view of
thofe books, that fome ot'ntr guide was indifpenfably neceflary.
The defects of thefe writeis, then, as they refpect the prefent.
fituation of America, are rather to be afcribed to the materials
from which their works were formed, than a want of judgment
in the authors themfelves. Their reputation is too well eflablifh-
ed to require the aid of panegyric, and the author hopes that no
expreffion
P R. E F A C E.
erpreiH.cn of his will be tortured into a meaning that he wiihcs
i*o detracl from it.
Convinced of the neceility of fucb a publication, at this time,
and flattered by the aflurances of many of the authors friends,
that he was not wholly unqualified for the taflc, he was prevailed
on to undertake the prelent work, How far he has fucceeded
muft be fubmitted to the.impartial judgment of his fellow citizens.
The materials of which this book is compofed, have long
been collecting, and would have affirmed.the form of a volume
before now, had not the profpedts of a republication of our laws
(for which the legiflaturc made provifion in the year 1789) made
it necefiary to wait the completion of that event.—No time has
been loir in hHlening this publication, fince the revifed code of
laws, has been fo far advanced, as to enable the author to avail
Bimfeit of the ufe cf it.
With rTpect to the books of authority, he has made ufe of all
fucb as are deemed fufficiently authentic, and has generally
adopted their own v.ords, with a proper relerence to the fevcrat.
parrs of the book, where the docfrine may be found. In fame
infiances, indeed, he has taken the liberty of varying the cx-r
prCiTion fo as to make it more agreeable to the ears of our repub-
lican citizens: 'i hus, inflead of the words IZivg and fuLjetf,
he ufes the exprehions Executive or Co?nwcnivealth, find citizen*
1 his he hope: will render the work more generally ufeful, with-
out afrebiing tr e fenfe of the author-
He has, as far as pc.ffible, avoided the infection of any latin
words, in the body of the ,work;—-Confcious that to .be ujefuly
not to aff ear ham r/, has been his principal object; and fenlible
tliat this book will fall into the hands Q.f many wno are ftrangers
fo that language. Some technical words, indeed, or terms of
art, are retained, becaufe having been in common ufe they are
generally known and have become a part of our language,
ifut, for the ule of tbofe.who have not been converfant 111 legal
proceedings, he has prefixed " An explanation" of fuch law
terms as have occurred in the courle of the prefent work.
It may be an objection with fome that the great number of
Indictments introduced into this work, has unneceflarily in-
cresfed the fine of the book, in exclufion of other matter i—
but the author could not ctheiwife diicharge his obligations to
the gentlemen of the bar, who have fp generally promoted this
publication,—nor wiil they be found wholly unufeful to the
i\T gilt rates the. m Lives, as by obferving the mode of expreflion
in »hc defcription of the offence in the indidhnent, they may
craw their iVlnciums lefs liable to exception than has ufually
been done®.
PREFACE.
The Appendix, fo far as it relates to the duties of a Juftice
of the Peace arifing under the laws of the United States, has
become a neceflary appendage to the work from iriany of the ob-
je£ts of a magiftrates jurifdi&ion under the flate governments,
having been transferred to the Congrefs of the United States.—*
The other part of it containing forms of conveyancing fpeaks Its
own utility.
To conclude: The author flatters himfelf, that on perufing this
work, it will be found that nothing material relating to the office
of a Juftice of the Peace, out of courts -has been omitted.—That
many important points of legal knowledge refpe&ing the pra&U
cal part of his duty, in courts are conveyed,—that private gen-
tlemen, as well as the feveral officers of court, will find in it
much ufeful information, and that in every inftance, he has far
exceeded his engagements with the public.
AUTHORS
Refer-red to in this Work.
Ambler.
Andr,
Atk.
B. L. D.
B, R. //.
Bac. Abr.
Barnard. Cba.
Barnard. K. B.
Blacks. 7
Blacks. Comm. y
Blacks. Rep.
Brown.
Bull. N. P.
Bunbr
Burn„ Ju/l.
Burr. ' I
B. M. 5
Ca. Cha.
Cbanc. Dccis.
Com. Dig.
Co.
Co. Lit.
Cro. Eliz.
Cto. yac.
Crc. Car.
Cram.
Cov p.
Dalt.
Dyer.
Doug.
Ambler's Reports,
Andrew's Reports.
Atkyns's Reports.
B
Burn's Law Di&ionarv.
Cafes in the time of lord Hatdivicke.
Bacon's Abridgment.
B..rnardifton's Reports in Chancery.
Barnardiflon's Reports in King's Bench.
Blackflone's Commentaries.
Blackftone's Reports.
Brown's Reports in Chancery.
Buller's Nifi Prius.
Bunbury's Reports.
Burn's Juftice. 15th ed.
Burrow's Reports.
Cafes in Chancery.
" Decifions of Cafes in Virginia, by the
High Court of Chancery," publifhed in
1795, by the prefent Judge of that court.
Comyns's Digeft.-—By Kyd.
Coke's Reports.—The references are al-
ways to the parts, and not to the vols.
Coke's Commentaries upon Littleton.
Croke's Reports in tjne reign of Elizab.
Croke's Reports in the reign of James I.
Croke's Reports in the reign of Charles I.
—Sometimes thefe reports are referred
toby 1, 2, 3. Cro.
Crompton's Juftice,
Cowper's Reports
D
Dalton's Juftice.
Dyer's Reports.
Douglas's Reports.
AUTHORS REFERRED TO.
F* AT. B. FitzberWt's Natura Brevium.
Foft. FTfter's ^;cwn iaw.
Or
Cilb. Dev. C-i'bert'? IJc To?.
Glib. Dijl. Giicert's D ilien.s,
II
| liaxT Hiftcry of the Pleas of the Crown.
Halt's PI. ( Hale's Summary of the Picas of the Crown.
2 ^Hoitk \ Hawkin's pleas of the Crown.—The referen-
**' •* ces are generally ?o the laft folio edition.—
All tne oifavo editions have prefixed to each
Volume a table {hewing'what pages of the
one edition currefpond wish thofe of the
other.
H:b. Hobart's Reports.
1 Injl. Cake upon Littleton.
2 ln/1. The fscond part of Coke's Inftitutes.
3 The third psrt of Coke's Inftitutes.
4 Inft. The fourth part of Coke's Inftitutes.
K
Kely. Kelyng's Reports.
L
Lamb. Lambard's Juftice.
Lem. Leonard's Reports.
Lev. Levinz's Reports.
Lit. §. Littleton's Tenures.
Ld. Rayrn. Lord Raymond's Reports.
M
Med. Modern Reports.
Itfo. Moore's Reports.
O
Ons. N. P. Onflow's Nift PriuS.
P
P. Will. Peere Williams's Reports.
PL Com. Plowdtft's Commentaries^
AUTHORS REFERRED TO.
R
Raym. Thomas Raymond's Reports,
Rol. Abr% Rolle's Abridgment.
S
Salk. Salkeld's Reports.
$ay. Sayer's Reports.
Sid. Siderfin's Reports.
Shaw. Shower's Reports.
St. Tr. State Trials.
Str. Strange's Reports.
T
Term Rep. Term Reports, by Durnford & EafL
%heo. Ev. 1 heory of Evidence.
V
Vent. Ventris?s Reports,
Fern. Vernon's Reports.
Fez. Vezy's Reports,
Fin. Abr, Viner's Abridgment.
F. I. Virginia Laws.—Commonly called the Re~
vifed Cede, printed in 1794*
W
IFils. Wilfon's Reports,
Wood. Wood's Inftitutes.
Y
Teh. Yelverton's Reports.
References not particularly enumerated above are fuch as are
obvious to every reader.
AN EXPLANATION
Of the feveral LAW TERMS and ABREVI-
ATIONS which have unavoidably b een ufcd
in the following treatife.
A
Ad quod damnum. A writ by which the fheriff is directed to
inquire by a jury, what injury will accrue to the commonwealth,
or to individuals, by granting a road, leave to ereft a mill, £:c.
Affidavit. An oath in writing taken before fome perfon who
has authority to grant it. They differ from a depoftion in this
That they are generally voluntary—do not require a commifiicn
to ilTue from a court to authorife the taking of them, and a-e
generally made ufe of on motions, as to dkTolve an injunction,
and the like.
Alias. A fecond or farther writ, after a former writ h,:th
been fued out without efreCt: " We command you as we jvr-
inerly have commanded you," jicut alias pracipimus.
Alibi—In another place.
Amicus curia. If a Judge is doubtful,or miflaken in matter
of law, a ftander by may inform the court as amicus curia or a
friend to the court. 2. Infl. 178.
Anno Domini. In the year if our Lord, the computation of
time from the incarnation of our Saviour.
Array, is the pannel of the jury returned by the fherifF. And
when a man intends to challenge the whole jury, as on fufpicion
of partiality, or fome default in the flierifF who made the return,
it is called challenge to the array.
A£umpftti from the Latin, is a promife to pay on valuable con-
fideration; and is either exprefs or implied. See B. Black's
com. 157.
Avowry, is where a perfon who takes a diflrefs in his own right,
avows and juftifies in his plea for what caufe he took it: If the
defendent took the diftrefs in right of another, he. makes conu-
fance.
B
B. R. The initial of the latin words for the court of King's
Bench.
Baron Sz Feme. The law French for hufbar.d and wife.
Bona fide, is that which is done with good faith, honeflly,
without any fraud or deceit,
An EXPLANATION, See.
c
Capias ad audiendum. In cafe of a mifdemeanor, after the
defendent ha'h appeared and is found guilty, and is not prcfent
in court upon his conviction, a Capias is awarded adaudiendum
judicium (to hear end receive judgment) and if he abfeonds, he
may be profecuted even to outlawry. 4, Blacks. com, 368.
Capias pro fine, is where one who is fined to the common-
wealth, for tome offence committed againft a ftatute, doth not
dilcharge the fine according to the judgment. Whereupon his
body is to be taken by this writ, and committed to prifon until
he pay the fine.
Capias ad refpondendum, is a writ, commanding the {heriff" to
take the body of the defendant, in order that he'may have it at
a certain time in court to anfwer the demand of the plaintiff.-—
Sec. 3. Blacks, com. 282.
Capias ad Jatisfaciendumi is an execution againft the body of
the defendant. Id. 415.
Capias utlagaium-, is a writ to apprehend the body of an out-!
law. 3. Blacks, com. 284.
D
Damage feafant. Doing damage. See Wood. B. 4. c 4.
De bene ejjey in law, tignifies that the thing' done may be
good for the prefentj but not it the party has it in his power t®
proceed by the ordinary method. 3. Blacks. com. 383.
De novo. Anew, over again. ' ...
Di/lrangas, is a writ directed to the fheriffi commanding him
to diiirain one by his goods and chat,els, to enforce his compli-
ance, with what is required of him, as for his appearance in
court on iuch a day. E. N. B. * y, • '
E.
Elegit. A writ ofexecution againft tfie lands of the defendant.
I. Injl. 289. 3. Blacks, com. 418. ' "
Exigent. A writ which" fifties previoufty to an outlawry.
Ex officio^ is Co Called from the power which an officer hath,
by virtue of his office, to do certain a£ls without being particu-1-
larly applied to. 1 Hawk. 137. 4 Blacks, com. 309.
F
Feme covert. A married woman.
Feme fiole. A ftngle woman.
Feres natures. Animals of a wild nature, in which a perfon
cannot have an abfolute, but only a qualified property. 2 Blacks
com. 391. ^ , •"
Fieri facias. An execution againft the goods. 3. Blacks,
com. 417.
Ah EXPLANATION, &c.
Forma pauperis (in the form of a poor perfon) is where a per-
fon being too poor to bear the expences of a law fuit, is permit-
ted to prefecute free from expence. 3 Blacks, com. 400.
H
Habeas corpus. See that title in the body of the work.
Habendum. That part of the deed which afcertains the qua-
lity of the efhite granted. 2 Blacks• 298.
Habere facias feifinam. An execution for the pofieffion of a
freehold. If it is a chattel intercft, and not a freehold, the writ
is a habere facias pofj'ejfwnem. 3 Blacks, com. 412»
Jeofail, is compounded of the French fay faillee, that is, I
have failed-, and fgnines an overfight in pleading, or other law
proceedings. Terms. L.
M
AJefne procefs. Generally the procefs which iflue pending a
fuit, between the original commencement and the execution.
N
Ne exeat, &c. A writ ifiuing out of the High Court of
Chancery, to retrain a perfon fiom going cut of the ftate.—
1 Atk. 521.
Nil dicit, is a failing by the defendent to put in an anfwer to
the plaint:ffs declaration by the day affigned; which being omit-
ted, judgment is had againft him of courle, as faying nothing,
why it ihould not.
Nil debet. The proper plea to an adlion on a contrail not
under fea', whereupon the defendant pleads, that he owes nothing.
3 Blacks, com. 305.
Nolle profequi. A voluntary relinquifliment of a profecution.
2 Lill. 218.
Nomine perna-, is a penalty incurred for the non-payment
of rent, or the like, at the day appointed by the leafe or agree-
irient for payment thereof. 2 Lill, 221. Hob, 82. 113.
Non affumpfit, is a plea in a perfonal aition whereby a man
denies any promife made, and originated from the form of ex-
preffion ufed, while the proceedings were in latin.
Non compos mentis. A perfon of unbound mind. See title
" Lunatics."
Non ejl faftum. A plea to an ailion on a bond or deed, which
is void in law, or which was never executed by the defendant.
2 Lill. 226.
Non ejl inventus, is the fheriffs return to a writ when the de-
fendant is not to be found in his bailiwick.
. Non pros' 7 is the letting a fuit or adiion fall. 3 Blacks, com.
sen fuit, \ 295.
Non
Am EXPLANATION, £~c.
Kon fwn informatus. A declaration made by an attorney that
he is not i j:*•,rieds to fay any thing mateiial in defence of his
client.
Kit-him paftum. A bare naked rgreement without *nj con-
fideration T. L. Fut if it is reduced to writing it is good
ugainfl the party himfelf, but not Grangers. Burr, 1671.
Onus probandi. The burden of the proof.
P
Pluries. A third writ after two former writs have blued
without effed.
Pofje commitatus. The power granted the fheriff of raifing
the power of his county to aid him in the execution of h;s office,
J Blacks. com. 343.
Procedendo A writ by which a caufe is remanded to an in-
ferior court, from which it had been improperly removed.
Prochein is he that appears in court for an infant, who
fues any adion, and aids the infant in the purfuit thereof.
Q.
Quantum meruit (that is, as much as he has deferved) in an
adion on the cafe, is where a man employs another to do a cer-
tain piece of work, without any fpccial rgreement, with refped
to the pi ice, the law ipiplies that he fhall pay as much as the
other deferved,
phd turn. See Informations.
S
Subpoena^ is a procefs to caufe w»tneffes to appear and give
teJfliinwny (fub poena) under a penalty for difobedience to the
writ.
Subpoena duces tecum, is to compel the witnefs to bring with
him feme writing or other evidence neceflary to be produced in
the caufe.
Superfedeas, is a writ that lies in a great many cafes, and fig-
niffes in general, a command to flay proceedings at law, on
good caufe lhewn, which ought otherwile to proceed. FN B.
Venire (from thofe words in the writ venire facias) is either
in the nature of a fummons, to caufe the.party to appear and ah-
fwer an indidment or preferment; or the procefs direded t6
the fheriff to caule a jury to appear. 4 Blacks. com. 313.
loir dire (verhatem dicere) is where the party is examined
upon oath to make true avjwery to l'uch queffions as the court'
fndl demand of him, 3 Blacks, com 332.—The cafes in which
this pradice is ufed, miy he feen under title Evidence.
Other explanations may generally be found in thefe parts of
the book, in which the terms occur.
THE
New VIRGINIA JUSTICE,
ACCESSORY.
I. Of acceforks hi general.
II. Of acccfries before the facl*
m. of acceforks after the fact.
IV. How they are to be proceeded a;f/if
V. Precedents of indichnents agahiji ace, dories.
I. Of Accessories in general,
AN ACCESSORY is he who is not the chief after in the
offence nor prcfent at its ferfl) mance, hvi is fometvay ton-
cerned therein either before or after theja£l committed.
4. Blacks. 35,
2 In high treafon there are no acceffories but all are princi-
pals: the fame adts that make a man acceffory in felony, mak-
ing him a principal in high treafon, upon account of the hcinoul-
nefs of the crime. Ibid.
3 In petit treafon, murder, and felonies with cr without bene-
fit of clergy, there may be acceffories: except on-y in thofe
' offences, which by judgment of law are fudden and unprernedi-
fcated, as man-{laughter and the like; which therefore cannot
have any acceffories before the fadt. 4 Blacks. 36".
4 In petit larceny, and in all crimes under the degree of fclo-
ny, there are no acceffories either before or after the fact; but
all perlons concerned therein, if guilty at all, are principals:
the fame rule holding with regard to the higheft and loweft often-
ces, though upon different reafons. In treafon all are principals,
on account of the heinoufnefs of the crimes in trefpafs all are prin-
cipals, becaufe the law, which doth not regard trifles, does not
defcend to diftinguiih the different {hades of guilt in petty mif-
demeanors. 4 Blacks. 36.
5 It is a maxim, that an acceffory follows the nature of his
principal', and therefore an acceflbry cannot be guilty of a higher
crime than his principal; being only punifhed, as a partaker of
his guilt. So that if a fervant inftigates a ftranger to kill his
mafter, this being murder in a ftranger as principal, of courfs
the fervant is acceffory only to the crime of murder; though,
had
ACCESSORY.
had be been prefent and afiifting, he would have been guilty as
principal of petty treafon, and the firranger of murder.'. Ibid.
6 Lord Coke generally obferves that when any offence is fe-
lony, either by the c >mnum law or by ftatuto, all acceffories,
both before and after the fadf, are incidentally included. 3 Injh
59-
7 But yet the fpecial penning of the ftatute creating a felony,
may greatly diverlify the offence of acceffory or principal.
II. Of Accessories before the fad:.
An accejjory before the faSi committed is he who Icing abfent at
the time of the felony committed, doth yet procure, counfel, command,
or abet another to commit a felony, 4 Blacks. 36.
Being abfent at the time of the felony committedJ Abfence is
rieceffary to make him an acceffory j for, if fuch procurer, or
the like be prefent,. he is guilty of the crime as principal. 4.
Blacks. 36.
So alio if divers come to commit an unlawful a&) and be pre-
fent at the time of the felony committed, tho' one of them only
doth it, they are #//principals. 1 Hale. P. C. 215.
So if one prefent move the other to flrike; or if one prefent
did nothing, but yet came to affift the party if needful; or if one
hold the party while the felon ftrikes him; or if one prelent de-
livers his weapon to the other that ftrikes: for they are prefent
aiding, abetting, or comforting. Ibid. 216.
So if feveral perfons fet out together, or in fmall parties, upon
one common defign, be it murder or other felony, or for any
other purpofe unlawful in itfelf, and each taketh the part affigned
him ; fomg to commit the faift, others to watch at proper diftan-
ces and ftations to prevent a furprize, or to favour (if need be)
the elcape of thofe who are more immediately engaged: They
are all, provided the fa£t be committed, in the eye of the law
prefent, at it. For it was made a common caufe with themj
each man operated in his ftation at one and the fame inftant,
towards one and the fame common end; and the part each man
took tended to give countenance, encouragement and protection
to the whole gang, and to enfure the fuccefs of their common
enterprize. Fojler's crown law. 350*
But if one came cafually, not of the confederacy, tho' he hin-
dered not the felony, he is neither principal nor acceffory, altho'
he apprehended not the felon; but for his negligence, he is puniih-
able by fine and imprifonment. Hale's PI. 216.
Alfo in fome cafes even a perfon abfent may be principal; as
he that puts poifon into any thing to poifon another, and leaves
ACCESSOR. Y.
it, tho' not prefent when it is taken: and foit {hems all th.it are
prefent when the 'poifon is To infufed, and confenting thereunto
Hale's PL 2l6.
Procure, ceunfel, command or abet.] In the confi ruction of
thefe words, fome diflinbtions are necefiary to he obf rvt-d: As,
(1) When the principal doth net accomplijk the J act altogether
in the fame fort, as it wets beforehand agreed between him and the
accejfory. And therefore if one commands another to lay hold
upon a third perfon, and he lays hold upon him and robs him, the
perfon commanding js not accefiory to the robbery; for his com-
mand might have been performed without any robbery.—
4 Blacks, 37.
But if the felony committed be the fame in fubftupce with that
which is commanded, and only vary in. i; fome ckcumfiantial
matters, as if, upon a command to poifon 't iiius, he js ftabbed
or fhot, and dies, the commander is {fill acceiTory to the murder,
for the fubftance of the thing commanded v/as the death of Titi-
us, and the manner of its execution is a mere collateral circuin-
ftance. 4 Blacks. 37.
So if the command had been to beat him, and the party com-
mandeddoth kill him, or beat him fo that he dieth thereof; the
perfon commanding ihall be acceiTory to the murder: for rit is
a hazard in beating a man, that he may die thereof. Dalt•
c. 161.
(2) It is likewfe a rule, that he who in any wife commands or
tounfels another to commit an unlawful act, is acccjjory to all that
enfues upon that unlawful act', but is not accojory to any a,d df-
tinEl from the other.] As in the eafe lad above mentioned,
where A commands B to beat C, and he beats him fo that he
dies, B is guilty of murder as principal, and A as acceliory.
But if A commands B to burn C's houfe, and he in fb doing
commits a robbery; now A tho' accefiory to the burning, is
not acceffory to the robbery, for that is a thing of a dillinit and
unconfequential nature. 4 Blacks. 37.
So if one command another to fteal a horfe and he (lealethan
ox; or to rob a man by the high way of his money, and he robs
him in his houfe of his plate; or to burn iuch a ones houfe, and
he burneth the houfe of another. 1 here are other adls ai:d fe-
lonies than he commanded to be done, and therefore he ihall not
be adjudged accefiory to them. Dalt. c 161.
(3) It feems to be generally agreed, that he who barely con-
ceals a felony which he knows to be intended, is guilty only of a mif-
prifon of felony, and Jhall not be a-judged an accjfury, for this is
iiot procuring, counfelling, or abetting. 2. Hawk. 317,
(4)
4 ACCESSORY.
(4) It is fettled that whofoever procurcth a felony to be com-
mittcd, though it be by the intervention of a third perfon, is an
acceflbry before the fail. 4 Blacks. 37.
(5) Fut of a man counfcls or commands another to kill a
perlon, and before he hath killed him, he who counfclled or com-
manded it repents, and countermands it, charging him not to
kill him, and yet after he doth kill him; here fuch perfon counter-
mandtng (hall not be adjudged acceflbry to the murder: For
generally the law adjudgeth no man acceflbry to a felony before
the faCt, but fuch as continue in that mind at the time that the
felony is done and executed. Dalt. c. 161.
(6) Yet if a perfon advife a wouian to kill her child as focn
as it fhall be born, and Hie kill it in purfuance of fuch advice;
he is an acceflbry to the murder, tho' at the time of the advice,
the child being not born, no murder could be committed of it:
For the influence of the felonious advice continuing till the child
was born, makes the advifer as much a felon, as if he had given
his advice after the birth. 2 Hawk. 315.
III. Of Accessories after the fad.
An accejjory after the faff may be, where a perfon knowing a
felony to have been, receives, relieves, comforts, or affifls the felon.
4 Blacks. 37.
Knot ing a felony to have been.'] There can be no doubt but
that it is neceflary that the receiver have notice of the felony,
either exprefs or implied, and fo to be laid in the indictment that
the receiver knew that the perfon received by him, had commit-
ted the principal felony. 2 Hawk. 319.
Afelony.] This as hath been faid holds place only in felonies,
and in thofe felonies, where by the law judgment of death regu-
larly ought to enfue; and therefore not in petit larceny.
1 H. H. 618.
And therefore if a perfon do barely receive, comfort or con-
ceal an oflbnder guilty of any common trefpafs, or inferior crime
of the like nature, tho' he knew him to have been guilty, and
that there is a warrant out againfl: him, yet he is not an acceflo-
rj to the offence; but perhaps in fuch cafe he may be indictable
for a contempt of the law, in hindering the due courfe of juftice.
2 Hank, 311:
Relieves, comforts, or affjls the felon ] In the explication of
thefe words, fcveral points are worthy of obfervation.
(1) Generally, any afliftance whatfeever given to one known
to be a felon, in order to his being apprehended, or tried, or
fullering ihe punifliment to which he is condemned, isfufficicnt
to
ACCESSORY.
to bring a man within the defcription, and make him acceffory
to the felony; as where one afiifts him with a horfe to ride away
with, or with money or victuals to fupport him in his efcape.—*
2 Hawk. 317.
(2) But if a man knows that a perfon hath committed a felo-
ny, but doth not difcover it, this doth not make him an acceffo-
ry, but it is a mifprifon of felony, for which he may be indicated,
and upon his convi&ion fined and imprifoned. 1 Hal. P C 61b".
(3) Alfo if a man fees another commit a felony, but contents
not, nor yet takes care to apprehend him; this is a neglefi pu-
nifhable by fine and imprifomnent, but it doth not make him an
accefiory. Ibid.
(4) In like manner, if one commit a felony, and come to a
perlons houfe before he be arretted, and fuch perfon fuller him
to efcape without arreft, knowing him to have committed a fe-
lony, this doth not make him accefiory; but if he cake moxiey
of the felon to fuffer him to efcape, this makes him an accefioryi
And fo it is if he ufes any ftratagem by which the purfuers of the
felon are deceived, and he hath an opportunity to efcape, this
makes him an acceffory; for here is not a bare omifiion but ail
a& done by him, to facilitate the felons efcape. Ibid. 6ig.
(5) Alfo it feems to be fettled at this day, that whofoever reff
cues a felon from an arreft for the felony, or voluntarily fuf*
fers him to efcape, is an acceffory to the felony. 2 Hawk 318.
(6) But to relieve a felon in jail with clothes, or other ne-
ceffaries is no offence: for the crime imputable to this fpecies
of acceffory is the hindrance of public juttice, by afilfting the
felon to efcape the vengeance of the law. 4 Blacks. 38.
(7) The fame obfervations will apply to the cafe of a perfon
bailed on fufpicion of felony. Ibid.
(8) So if a perfon fends a letter in favour of a felon, or advi-
fes witnefies not to appear, he is not an accefiory to
the felony; but it is a high contempt, and the laft merits fevere
punifhment: 1 Bum's jujlice, 6.
(9) But to convey inftriiments to a felon in jail to facilitate
his efcape, or to bribe the jailor to let him efcape, makes the
party an acceffory. I Hal. PC. 621.
10 A man may be acceffory to an acceffory^ by the receiv-
ing of him knowing him to be an acceffory to a felony. Hal.
P. C. 622.
(11) If a man hath goods ffolen and he receives his goods
again, limply, without any contrail to favour the felon in his
profecution, this is lawful; but if he receive them upon agree-
mcnt not to profecute, op to profecute faintly, this is theftbote
(12)
6 ACCESSORY.
punilhable by impilfonment and ranfom, but yet it makes him
an acceflory j but if he take money of him to favour him, where-
by he efcapes, this makes him acceflory. I Haley P C, 619;
(12) The felony muft be complete at the time of the afliftancC
given, elfe it makes not the afliftant an acceflory. As if one
wounds another mortally, and after the wound given but before
death enfues, a perfon afTids or receives the delinquent, this does
not make him acceflory to the homic ide j for till death enfues
there is no felony committed. 4 Blacks. 38 Hawk. 32c.
(13) but fo drift is the law where a felony is aftually com-
plete, in order to do effeftual juftice, that the neareft relations
are not differed to aid or receive one another. If the parent af-
fids his child, or the child his parent* if the brother receives the
brother, the mader his fervaht, or the fervant his mafter, or even,
if the hufband relieves his wife, who have any of them commit-
ted a felony, the receivers become.aece/Tories after the faft.
4 Blacks. 38.—But a feme-covert cannot become an acceflory
by the receipt and concealment of her hufband; for fhe is pre-
fumed to aft under his coercion* and therefore fhe is not bound,"
neither ought fhe to difcoverher Iord< 4 Blacks. 39.
(14) But if the wife alone, the hufband being ignorant of it,
do receive any other perfon being a felon; the wife is acceflory
and tiot the hufband. 2 Hawk. Pi C. 320.
(15) But if the hufband and wife both receive a felon knovy-
ingly, it fhall be adjudged only the aft of the hufband, and the
wife fhall be acquitted. 1 Ha 'es. P. C. 621.
{\b) By Virginia laws. p. 216. 4 It fhall be lawful to
e profecute and punifh every perfon and perfons buying or receiv-
* ing any Aolen goods, knowing the fame to be dolen, as for a
4 mifdemeanor, to be punifhed by fine and imprifonment, altho'
4 the principal felon be not before convifted ©f the faid felony,
4 which fhall exempt the offender from being punifhed as acceflb-
4 ry, if the principal fhall be afterwards convifted.'—And buying
the goods at an under value, is a prefumptive evidence that he
knew they were dolen 1 Hal. PC 619.
IV. How they are to be proceeded againjl.
(1) By the common law no acceflory could be convifted or
differ any punifhment, if the principal was not attainted, or had
hisxltrgy. But this is remedied by Virginia laws, p. 216.—
Which enafts, 4 that if any principal offender fhall be convifted
4 of any felony, or fhall fland mute, or perempto ily challenge
* above the number of 20 perfons returned to be of the jury, it
4 fhafl
ACCESSORY.
? fhall and may be lawful to proceed againft any acceffory, either
c before or after the fadt, in the fame manner as if fiich principal
* felon had been attainted thereof, notwithstanding fuch prinipal
4 felon fhall be admitted to the benefit of his clergy, pardoned,
* :or otherwife delivered, before attainder; and every fuch ac.cef-
* fory fhall fuffer the fame puniftunent, if he or fhe be convibied
4 or fhall ft and 'raute, or peremptorily challenge above the hum-
* ber'of twenty perfons returned to be of the jury, as he or fhe
4fhould have fuftered if the principal had been attainted.'
' 2. " Alfo, c if any" perfon or perfons fhall receive or buy any
* horfe that fliall be felonibufly taken or ftolen, from any other
4 pe;fon,' knowing the fame to be ftolen, or fhall harbour or con-
4 ceal any horfe ftealbr, knowing him, her or them to be fo, fuch
1 perfon or' perfons fhall be taken and received" as acceffory or
* acceflories to'the faid felony; and being'of either of the fald
4 offences legally convicted by the teftimony of one or more ere-
4 dible witnefs or witneftes, fhall incur and fuffer the pain of
f death, as a felon convibt.* V. 1, p 188.'*
3. But, c if any fuch principal feloh cannot be taken, fo as
* to be profecuted and convicted "of any fuch offence, yet never-
4 thelefs it fhall and may be lawful'to prbfecute'and punifh every
\ fuch perfon and perfons buying'or receiving any h'orfes ftolen
4 by any fuch principal felon, knowing 'the fame to be ftolen, as
4 for a mifdemeanor, to be puniflie'd by'fine and imprifonment,
4 or other fuch corporal punifhmeiit as the court fhall think fit to
4 infiibt, altho' the principal felon he not before convibt of the
4 faid felony, which 'fhall exempt the offender from being punifh-
4 ed as acceffory, if fuch principal felon fhall be afterwards taken
4 and convicted.* Ibid. •
4. 4 Art'acceffory to a murder <?r felony committed fhall be
4 examined by the court of that county or corporation, and tried
■ 4 by the court ©f that diftrict, in which he became acccffcry, and
4 fhall anfwer upon his arraignment, and receive fuch judgment,
4 order, execution, pains and penalties, as are uled in other cafes
4 of murder or felony." V. l.p
5. The acceffory may be indibted in the fame indictment
with the'principal, and that is the beft and mbft ufual way; but
he may be indibted in another ihdidlment, but then fuch indict-
merit muft contain the certainty and kind of the principal felony.
1 Hal. P. C. 623.
6 It feemeth that the acceffory may be put to anfwer before
the principal hath appeared; but'his"plea cannot be tried before
fuch appearance, ' unlefs he defires it himfelf; but if he will put
himfelf upon his trial, before the principal be tried, he may; and
his acquittal or conviction, upon fuch fuch trial will be good.-—'
2 Hawk, 322. ' But
8 ACCESSORY.
But it fcemeth necefiary in fuch cafe to refpite judgment, 'till
the principal be corvidted; for if the principal be after acquitted,
that conviction of the accefTory is annulled, and no judgment
ought to be given againft him: But if he be acquitted of the
acteflory, that acquittal is good, and he (hall be difcharged —.
i Hal. P C, 623. 624.
7 It feems to be fettled at this day, that if the principal and
jicceftory appear together, and the principal plead the general
jflue, the accellary fhall be put to plead alfo; and that if he like-
wife plead the general iftue, both may be tried by one inqueft;
but that the principal muff be fir ft convinced, and that the jury
fhall be charged, that if they find the principal not guilty, they
ftiall find the acccftory not guilty alfo, But it feems agreed,
that if the princ;pal plead a plea in bar, or abatement, or a for-
mer acquittal, the accefTory ftiall not be forced to anfwer, till
that plea be determined: For if it be found for the principal,
the accefTory is difcharged ; if againft .the principal, yet he fhall
after plead over to the felony and may be acquitted. 2 Hawk,
323- 1 Hal. P C. 624,
8. It 1 em<°th not reafonab'e, Mr. Haivkin's fays, where a
perfon Bcharged as acccftory to more than one principal, to try
him on the conviction of one, bf.fi re'all of them have appeared;
becaufe thertby he may be fubjedled to the hardfhip and hazard
pf two fials for his life Tor the fame offence, which is contrary
to the general courfe of the law. 2 Hawk. 323.
But if a man be indidted as accefTory o two or more, and the
jury find him accefTory to one, it is a good verdidt, and judg-
rncnt may pafs upon him. Fojl. 361. And therefore the court
in tr.eir difcretion (Sir Michael FoJUr obferves) may arraign him
as accefTory to fuch of the principals who are convidted; and if
he he found guilty as acccftory to them or ary of them, judg-
ment fhall pafs upon him. But on the other hand, if he be ac-
quirted, that acquittal \yill not difchargc him as accefTory to the
oth"rc, and when the) come in and are convidted and attainted,
01* if judgment of outlawry pafteth againft them, he may be ar-
yaigned d? wwas accefiory likewife to them, Aitho' it is the fafer
courfe'according to lord Ha ',e\ to iefpite the arraignment of the
accefiory, 'lift all appear or are outlawed, . Fojl. 361.
<5 If the principal be prroneoufly attaint, yetthe accefTory fhall
be put to ar/vver, and fhall not take advantage of the error in
that attainder j but the principal reverting the attainder, reverf-
£iii the attaindt r of the accefTory. 1 Hale, P C. 625,
But upon this Sir Michael Fojter diftinguifherh as follows.
If the principal and accefTory are joined in one indidtmcnt and
fcripd together, whicfy feems to be the moll eligible courfe where
both
ACCE SSORY. 9
both are amenable to the court; there is no room to doubt whe-
ther the acceflbry may not enter into the full defence of the prin-
pa!, and avail himfelf of every matter of faCt and every point of
law tending to his acquittal, For the acceffory in this cafe to
be conhdered as a partner in the fuit, and this foit of defence
neceffarily and direCtly tendeth to his own acquittal. Fojh '3^5*
But when the acceffory is brought to trial after the conviction
of the principal; it is not neceffary to entei into the evidence
on which the conviction was founded. Nor doth the indictment
aver that the principal was in faCt guilty. It is fufficient if it recit-
eth, with proper certainty, the record of the conviCtion. This is
evidence afaainft the acceffory fufficient to put him upon his de~
fence. For it is founded on a legal prefumpcu n, that every thing
in the former proceeding was rightly and properly tranfaCted. But
a preemption of this kind muft, as it feemeth, give way to faCts
man.feffly and clearly proved. As againft the acceffory, the
convidiion of the principal will not be conclufive; it is as to him
a thing done among others —Foft. 365.
And then-fore if it {hull come out in evidence upon the trial of
the acceffory, as it feme times hath and frequently mav, that
the offence of whffh the principal was convicted did not amount
to felony in him, or not to that fpecies of felony with which he
was changed; the acceffory may avail himfelf of this and ought
to be difcharged. Foji. 365,
And as in point of law lo alfo in point oif it fhall ma-
nifeftly appear in the courfe of the acceffory's trial, that the prin-
cipal was innocent; common juffice feemeth to require that the
acceffory fhould be acquitted. As fuppofe a man is convicted
upon circumffantial evidence, ftrong as that fort of evidence can
be, of murder. Another is afterwards indicted as accellory to
this murder; and it cometh out upon the trial by inconteftable
evidence, that the perlon who was fuppofed to be murdered is
ftijl living; in this cafe furely the perfon indiCted as acceffory
to this murder {hall be acquitted, Or fuppofe the perlon to have
been in faCt murdered, and that it fhould come out in evidence to
the fatisfaCtion of the court and jury, that the witneffes againft
the principal were miftaken in his perfon (a cafe of which kind
Sir Michael Fojler fays he has known) that the perfon conviCted
as principal was not nor could poffibly have been prefent at the
murder Ibid 367, 368.
10 If one be indicted as principal, and another as acceffory,
and both be acquitted, yet the perfon indiCted as acceffory may
be indiCted as principal, and the former acquittal as acceffory is
jio bar. i Flal. P C. 625.
11 Eut if a perfon be indiCted as principal and acquitted;
lord
IO ACCESSORY.
lord Hale fays, he fhall not be induced as acceflbry before; An|
if he be, he may plead his former acquittal in bar, for it is in
fubftance the fame offence, i Hal P 6. 626.'
But, on this point, Sir Michael Fojler cbferves, that in the
eye of the law, the offences of principal and acc< ffoty do fpecifi-
cally differ j and if a perfon indibled as principal cannot be con-
vibted upon evidence tending barely to piove him to have been
acceflbry before the fadt, which mult 'neceffarily be admitted, it
doth not appear how an acquittal, upon one indictment, can be a
bar to a fecond for an offence fpeciiically different froni it
Fojl. 362. ^ ^ -
12 So if a man be indibled as principal, and acquitted, he
may be indibted as acceffory after, for they are offences of feve-
fal natures. 1 Hal. PC, 626.
13 And fo it is if he be indibted as acceffory before, and ac-
quitted; yet for the fame reafon he may be indibted as acceffory
after. 1 H«U P 6V626. » ; •
V. Precedents cf Indictments agalnji^
Accessories. *
XNDICTMENT of an acceffory before the fabt, formur^
dcr, taken from Coke's report of lord Sanchars cafe, 9 Cot
lib.—and adapted to the pradice of this country. • "
■ ■ count j to wit:
The jurors for'the body of the counties of compoftng the
eliftriCi court, appointed by law io 'be holien at 1 upon theit
oaths do present, *1 hat whereas A O late of the county of
merchant, and B O late of the county aforefdid, •labourer, not
having God before their eyesy but [educed by the tnfiigation 6J thi
devil, the day of in the year and in the
year of the commonwealth of Virginia, at the county of 1 ■ afore-
[aid
* The very literary encouragement given, by the gentlemen
of the bar to this work, ha^ determined the author to render it as
worthy of their patronage as poffible, by inferring in their proper
places, feveral precedents of indidincnts and fpecial pleadings,
as well in civil as in criminal law. Nor will this be thought in-
confident with the general plan of the publication, if as an emi-
nent judge + obferves, '•good pleading is the fure teft of the law.'
For bv an attentive perufal of the conftituent parts of pleading,
the law itlelf is neceffarily difcovered, and a reference to more
voluminous compilations, thereby faved.
ACCESSORY. n
faid, that is to fay, in the panjh of in the county aforefaid,
and within the "jurifdiftion of the dift rift court afore/aid, with
force and arms, (dc felonioufy and of their aforethought malice, in
and upon one C D then and thete in the peace of (did, and of the
faid commonwealth being, made an a fault and affray, and the
aforefaid AO a certain gun called a pijlot, of the value of
then and there charged with gun-powder, and a leaden bullet,
which gun the faid A O in his right hand then and there had
and held, in and upon the aforefaid C D, then and there felonioufy
voluntarily and f his malice aforethought, did Jhoot off and dif-
charge; and the aforefaid A O vaith the leaden bullet aforefaid,
from the gun aforefaid then and there foot off and difcharged,
the aforefaid C D, in and upon the left fart of the breaff of
him the faid C D, near the left pap of him the faid C D, then
and there felonioufy flruck, giving to the faid C D, then and there
with the leaden bullet aforefaid out of the gun aforefaid then and
there foot off and difcharged, in and upon the left fart of the breajl
of him the faid C D, one mortal wound of the breadth of half art
inch, and depth of fve inches, of which mortal wound the aforefaid
CD at the county of aforefaid, in the parifo alorejaid, in-
fflantly died: Jnd that B O felonioufy and of his forethought ma-
fee, then and there was prefent, aiding, affifling, abetting, com-
farting and maintaining the aforefaid A Q, to the felony andmur-
der aforefaid, in form aforefaid to be done and committed5 and fo
the aforefaid A O a nd B O, the aforefaid C D, at the county
aforefaid, in the parifo aforefaid, and within the jurifdiciion-afore-
faid, in manner and jor m aforefaid, felonioufy, vomniarily and of
their forethought malice, killed and murdered, againjl the peace
and dignity oj the commonwealth j And that one E (J, late of the
parifh of in the county of aforefaid, Efquire,
not having God before his eyes, but being feduced by the infti-
gation of the devil, before the felony and murder aforefaid by
the aforefaid A O and B O, in manner and form aforefaid done
and committed, that is to fay, the day of in the
year of the commonwealth of Virginia aforefaid, at the parifh ©f
in the county of aforefaid, and within the jurifdic-
tion of the diftridt court aforefaid, the aforefaid A O
to the felony and murder aforefaid, in manner and form afore-
faid to be done and committed, malicioufly, felonioufly, volun-
tarily and of his forethought malice, did incite, move, abet,
counfel and procure, againft the peace and dignity of the com-
nion wealth.] If
f By V. 1, p. 112,—it is enacted, that 4 in any inquiiition
* or indictment, the words force and arms, or any paitieuLr
4 words defcriptive of any particular kind offeree or ~nns, thai'
* not of neceflity be put or comprized/
12 ACCESSORY.
If after the Fact, then the form may be thus:
And that E. O, latt of in the county of efquire, well
knowing the jaid {offender) to have done and committed the faid
felony in manner and fo>m aforcfaid, to iti\ on the day of
in the year of the co nmonwealth of Virginia aforefaid, at the
county of cfore(uidy ana within the jui ijdiftion a for ej aid., with
force and arms, htm the faid (offender) did then and there felo-
nioufly, e nd of his forethought malice, receive, aid, and comfort \
againff the peace and dignity of the commonwealth.
2. Intiitl merit for a mijdemeancr, in receiving flolen
goods as accejfory, the principal felon being un-
known.
C ounty, to wit,
The jiror tor the body of the county of afore-
faid, upon their oaths do prefect, that late of afore-
faid, labourer, and his wife, being perfons of evil name and
fanr, and of difnoneft conversion, and common buyers and
receivers cf ftolen goods, on the day of in the
. year and of the commonwealth of Virginia the
with force and arms, at the county of aforefaid, fix
filver table fpoons of the value of twenty dollars, of" the goods
and chattels of one H B, by a certain ill difpofed perfon (to the
jurors aforefaid, yet unknown) then lately before felonioufly
ifolen, of the fame ill difpofed perfon unlawfully, unjuftly, and
for the fake of wicked gain did receive, and have, (they the
faid and his wife, then and there well knowing, and
each of them well knowing, the faid goods and chattels to have
been felonioufly ftolen) to the evil example of the good citizens
of this commonwealth, the great damage of the faid H B, againfl:
the torm of the z£t of the General AlTembly in that cafe made
and provided, and againft the peace and dignity of the com-
monwealth.*
3 Indictment
* Note, It frequently happens that the court of examination, do
not think the crime, with which the frifoner is charged, cf fuff-
dent magnitu It to fend him for further trial, to the Dijiribl
court. In that cafe they poffefs a power of binding him over to the
next court of their county, in which there will be a grand jury,
vj bo generally att ufen an indictment in the above form.—See t>-
tie Criminals.
ACCESSORY. 13
3, Indictment againft an acceffory to a felony or
. burglary before the fact.
After you have drawn the indiftment againjl the principal felon$
bring the charge againjl the acccjjory on the fame piece oj paper•,
as JoLivs: .
And the jurors aforefaid, upon their oaths aforefaid, do fart be f
prefent, That E O, late of the parijh of in the county of
aforefaid', labourer, before the faidfelony * and burglary ivas com-
mitted in form aforefaid, to wit, on the day of in the year
aforefaid, with force and artns at the parijh aforefaid, in the county
aforefaid, did Jelonioufly and malicioufy, f incite, move, procure,
aid and abet the faid A O, to do and commit the fata felony and
burglary in manner and form aforefaid, againjl the peace and dig-
nity of the commonwealth.]
4, Indictment againft an Accessory forreceiv-
ing the principal felon.
And the jurors aforefaid upon their oaths aforefaid do further pre-*
Jent, That E O, late of the parijh of in the county of
aforefaid, efquire, well knowing the faid A O, to have done and
committed the faid felony and burglary, in form aforefaid, after-
wards to wit, the day of in the year aforefaid, with force
and arms, at the par if aforefaid, in the county aforefaid, him the
fa 'td A 0, did then and there felonioufy receive, har bour and
maintain, againjl the peace and dignity if the commonwealth.
5, Indictment againft an acceffory for receiving
or buying a ftolen Horfe; alfo for harbouring,
or concealing the horfe-ftealer.
And the jurors aforefaid upon their oaths aforefaid do further
prefent, That E O, late of the parijh of in the county of
labourer, afterwards, to wit, on the day of in the year
aforefaid, with force and arms, at the parijh aforefaid, in the
county aforefaid, one gelding, of a black colour, of the price of
dollars, of the goods and chattels of the faid abovementioned, fo
as aforejaidfelonioufy taken, Jloien and lead away, did receive,
buy and have, (he the faid E O, then and there well knowing
the faid gelding, the goods and chattels lajl mentioned, to have been
felonioufy
* If felony only leave out the zvord burglary,
f Infead of the ivords incite, move, procure, ail and abet, you
may fay, connfl, hire, or command.
14 ACCESSORY.
felonisufy taken) Jlolen and lead aivay) agalnjl the form of the a Si
of the General Ajfemhlv in that cafe made and provided, and
agalnjl the peace and dignity of the commonwealth.
If againft the perfon who haibours or conceals a horfe-fteale.^
purfue the above fo« m to the word 4 labourer' then prcceed—.
well knowing the /aid A O, to have done and committed the felo-
ny aforefaidy in form aforefaid, afterwards, to wity on the
day of in the year atorefaid, with force and armty at the pa-
rijh aforefaidy in the county afrefai /, him the /aid A O, did then
and there feloniovfy harbour and conce d, againjl the form of the
ddi of the General Afjcmbly 15c.—conclude as above.
ADDITION.
Addition Jignifies, a title given to a man, b fides
kts chrifiian and fir name, Jetting forth his ejlate
or degree, his trade, and the place where he in-
habits, Burns L. D. 14,
To prevent the inconvenience of rbiflaking one perfon for ano-
ther, it is enaCted by V. laws. p. 112.
6 rpHAT in indictments, in which the exigent fha!J Be
JL awarded, in the names of the defendants, in filch in-
4 di&ments, additions {hall be made cf their eltate or degree or
* myflery, and of the counties * of which they were or be, or
4 in which they be or were converfant, and f on the procefs up-
4 on the faid indictments, in which the faid additions be omitted,
4 any outlawaces be pronounced, they {hall De void, fruitrate
4 and holden for none, and before the outlawries be pronounced,
4 the faid indictments (hall be abated by the exception of the
4 party, wherein_the faid additions be omitted '
As this law fuhjlaniially agrees with the ftatute of England of
I. H. 5. c. 5. the fame rules of conftruCtion will equally apply
to it.
I. In which the exigent jhall be awarded.) The exigent is
a writ whereby the {heriff is commanded to proclaim the party
in
* It is objcrvable that this a CI requires, with refpeSl to the ad-
diihn of place, only the addition of the county, and not the parifh,
town, hamlet idc. as in the a SI of 1. H. 5. and is conformable to the
ad cf the General Affcmbly on this fubjedi (P. I. ill.) which de-
dares that no omiffio*iy in an indictment of parifll town, ville or
hamlet, jhall vitiate fuch indictment.
ADDITION, 15
in the county court, in order to his being outlawed. And by
thele words the add extendeth only to cafes where prccefs of out-
Uwry may be awarded; and therefore it extendeth not to a:i
indictment for encroaching on the highway, becaufein that cafe
procefs of outlawry lieth'not, but a diftrefs. Cro, Elez. 14b.
I JFhfon, 244.
2. In the names cf the defendants ] Regularly by the common
]aw, every natural man, ought to be named in all original, and
other fuits, by his chruiian name, and ftrname, and that before
this adt fuhiced. 2, Lift, 665.
If it be a corporation aggregate of many perfons, as mayor
and commonalty;" the major need not be nam^d by his chritti-.
an name, becaufb that fuch a corporation ttandeth in lieu both
cf the chrift.an name and firname. 2. InJL 666.
3. Additions Jbcdl.be rnaJe J ' Additions of ejjate or degree,
are, yeoman,'gentleman, efquire, and the like. B. L D 15,
Additions ot t ade or occupation, are thde cf meichant, clo-
thier, carpenter, taylor, hufbanJmun, labourer, and ail ether
lawful occup Vions. Rid.
Additions oi place, are, cf fuch a town, cr of fuch a county
&c. Ibid. ' " • " !
The addition as well of the efiate, degree or miftery, as the
place, ought by force of tnis ait to be alledged in the fir lb name;
for an addition after the a/ids diftns (othervuife called) is ill: As
for inftancd, where the indidtment was again'b W R, other v. he
calLd W R, of H, for without the alias diet us there is no ad-
dirion of the ville; and if the party is not fuhicientlv named in
the fir ft part, the alias cannot aid or help it. 2,. Inf. 669 3,
Sulk. 20. "
Where there are fevered defendants, of different names and
the fame addition, it is file ft to repeat the addition after each of
their names, applying it particularly to every one of them 2.
ELnuL 187. ■ " - ' '' '
Where the father hath the fame name, and the fame addition,
with a defendant being his fon, the action is abatcubie unlets it
add the auditioned the younger, to the other additions; but where
the father is the defendant, it is faid. that there is no need of the
addition of the e.der. 2. liaiuk 187.
Clerk is a good, addition of a clergyman J. Black. 405.
Qchipemun and gentlcvccnian are good additions, 1 Black." 406.
Yeoman is a good addition ; and (tho' feldam ufed in this
country,) in its legal acceptation, comprehends thole who may
do any act where the law requires one that is a good and niuful
man 1. Black. 4c6.
IVidow or fingUvjoman, or, (as fom. fij) v. ife of fuch a one;
are
16 ADDITION.
are all of them good additions of the eftate or degree of a wo«
man j but no fuch addition is good, for the eftate and degree of
a man. Alfo fpinjler is a good addition of a woman. %. Hawk*.
l88.
• Mfquire is properly annexed to Juftices of the Peace, or thofe
who hold any office of truft under the commonwealth, i. Blacks.
com. 405.-—Hut, in America, it is a mere complimentary title
indifcriminattly beftowed on all ranks and profeffions, and feems
to have no determinate ftgiiiftcation, Quere> if in indidl-
tnents, greater propriety fhould not be obferved.
• But fervant, groomy or farmer, are not additions within this
a£t, becaufe they arc not of any myflery. And chamber er, but -
/tr, ftantler^ or the like, are additions of offices, and not cf any
myflery or occupation. 2\ Injl. 668. ' • •
Neither doth this a& extend to unlawful pradlices, as extor-
tioner, maintainer, thief, vagabond, heretic, and fuch like.
2. Haivk. 188. ' 1 1 '
If a man hath divers arts, trades or occupations he mav be
named by any of them; and in general a man iliall be named
by his worthieft title of addition. 2. Injl. 668. 669.
4. Of which they were or be.] The addition of the eflate,
degree, cr myflery, ought to be as the defendant was of at the
day cf the indictment brought, and not late of fuch a degree or
myflery; but it is a good addition to name the defendant late of
fuch a town or place, becaufe men do often remove their habi-
tation. 2. Injl. 670.. State trials vol. 9 p 12. Lord Balme-
rino's trial.
5. Shall be void.J This being a judgment in law, is inter-
preied to be made void by a writ of error, or by the
plea of the party coming in upon a capias- utlagaium\ for tho'
the ftatute faith they {hall be void, yet they are but voidable by
a writ of error or plea. 2. Injl. 670,
6. By the exception of the party.] Eut if the defendant ap-
peaieth upon proceis, and plead, taking , no advantage thereof
by exception, he hath loft the benefit hereof: - But it ieemeth
that the bare appearance of the party, without plea, doth not
faive the want of a good addition. 2: Hawk. 190.
Affirmation fee Oaths.
Affray.
A F E R .A Y. 17
J. What is an affray*
II, How far it may be fuppreffd by a private
perfon,
III, How far by a confable.
IV, How far by a jujlice of the peace.
V, Punijhment of an affray,
VI, Precedents of warrants9 indictments CV.
againji affrayers,
L What is an Affray.
AN affray is a public offence to the terror of the com-
1 monweakh's citizens; fo called (according to lord
Coke 1 becaufe it affrighteth and maketh men afraid. 3 Inft. 158.
" 2. From whence it (eemeth evidently to follow, that there
may be an ajauli^ which will not amount to an affray; as where
it happens in a private place, out of the hearing or feeing of any,
except the parties concerned; in which cafe it cannot be (aid
to be to the terror of the people. 1. Hawk. 134..
3. Alfoitisfaid that no quart elfome or threatening words what-
foever fhall amount to an affray; and that no one can juffifv
laying his hands on thofe who fhall barely quarrel with arpy
words, without coming to blows; yet it feemeth, that the con-
liable may, at the requeft of either party threatened, carry the
perfon who threatens to beat him, before a juflice in older to
find fureties. I. Hawk 135.
4. 'Alfo, it is certain, that it is a very high offence to chal-
lenge another, either by word of letter, to fight a duel, or to
be the meffenger of iuch a challenge; or even barely to endea-
vour to procure another to fend a challenge, or to fight; as by
oifperfing letters to that purpofe; full of reflections, and infinu-
ating a defire to fight. 1. Hawk. 135.
5. But altho' no bare words, in the judgment of law, carry
in them fo much terror as to amount to an affray, yet it feerns
certain, that in fome cafes there may be an affray, where there
is no aCtual violence; as where a man arms himfelf with dan-
gerous and unufual weapons, in fuch a manner as will naturally
caufe a terror to the people; which is faid always to have been
an offence at the common law, and is flri&ly prohibited by
tute: For by theaCt ofAffernbly (V, 1. p. 33) it is enaCted,
4 That no man, great nor f nall, of what condition foever he be,
4 except the minifters of juflice, in executing the precepts of the
* courts of juftice, or in executing of their office, and fuch as be
18 A F F R A Y.
4 in their company aUKling them, be fo hardy as, come before
4 the juftices of any court, or either of their minitters of juilice,
4 doing their office, with'force and arms, on pain, to forfeit
*4 their armour to the commonwealth, and their bodies to prifon,
4 at the pleafure of a cou: t; nor go nor ride armed by night
4 nor by day, in fairs or markets, or in other places, in tcr-
4 ror of the country, upon pain of being arretted and com-
4 mitted to prifon by any juttice on his own view, or proof by
4 other®, there to abide for fo long a time as a jury, to be fvvurn
4 for that purpofe by the fa id juttice, {hail direct, and in like
4 manner to foifeit his armour to the commonwealth; but no
v4 pe Ion {hall be i j prifoned for fuch offence by a longer fpace
4 of time than one month/
It hath been holtlen upon the ttatute of 2, Igdw. 3. c. 3. front
which the above adV is nearly copied, that no perion is within
the intention of the law who arm's hirrcfe'f to fupprefs dangerous
rioters, enemies &c. and tlifturlers of the peace ot the common-
wealth. 1. Ilan.k« 136.
Nor unlefr. fuch "wearing be accompanied with fuch circum-
ttances as are apt to terrify the people; from whence it feems.
clearly to fol ow, that the wearing of common weapons, or hav-
ir.g the ufiial iiumber of attendants, meiely for ornament or de-
fence, where it iscullomary to make ufe of them, will not iub-
jodl: a pei fen to the penalties of this a£t.' 1 Hank 136.
it is holden, that a man cannot excuie the wearing fuch ar-
mour in public, by ailedging that fuch a one threatened him, and
that he wears it for the fate fry 'of bis p-rfon from fuch aliau't;
but it hath been rcfolved, that no one liia.ll incur the penalty of
the ttatute for alfembling his neighbours and blends in his own.
houfe, agaiatt tnofe who threaten to do him any violer.ee there-*'
in, became a man's h >ufe i-. htt cattle. 1 hank. 13b. '
It is holden that any juttice of the peace, c r other perfon em-
powered to execute this a«5l, may proceed thereon ex officio; and
it he find any peifon in arms contrary to the form of ttie ttatute,
he may feize the arms, and commit the offender to prifon; and
that he ought alfo to make a record of the whole proceeding,-'
and certify the fame to Me next county court. 1 Hawk. 136.
lout, in exerciiing this office, the add of Aflembly of Virgi-
nia materia1!)' differs from the adt of Parliament of 2. Edw. 3.
and-is certainly a very great improvement on it; being more
favourable to libeity. There, the duration of the imprii'onment
is unlimited, but here it cannot exitt, by law, for a longer fpace
cf time than one month, nor even that length of time, utile is
functioned by the verdidt cf a jury. It appears then, that as
boon as a Juttice of.the Peace has apprehended an offender agaijitt
the
AFFRAY.
19
the latter part of this a&, either from his own view, er proof by
others; he fhould iffue his warrant directing a jury to be fum-
jnoned, to determine what length of time (Jefs than one month),
the party fhould be imprifoned. (See the war rant precedent VII.)
II. How far it may befupprejfed by a private per/on.
. It Teems agreed, that any one who fees others fighting, may
lawfully part them, and alfo (lay them till the heat be over, and
then deliver them to the conftable to be carried before a Juftice,
to find furfeties for the peace 1 Hawk. 136.
And the law doth encourage him hereunto; for if he receives
any harm by the affrayers he fhall have his remedy by law
againft them; and if the affrayersrccuvehurt, by endeavouring
only to part them, the ftanders by mav juftify the fame, and the
affrayers have no remedy by law. 3 Injh 158
But if either of the "parties be flaih, or wounded, or fo
ftricken that he falleth down for dead; in that cafe the itanders
by ought to apprehend the party fo flaying, wounding, or ftrick-
ing, or fo endeavouring the fame by hue and a y; or elfe for
•his efcape they fhall be fined and imprifoned 3. Irft. 158.
IIL How far by a Constable.
"The power of a conftable, as a peace officer, is derived from
the common law of England; and altho' as a putt of the com-
mon law, the dodtrine relating to that (object, is entitled to a
place in this work, yet few inftance>, I t>„ itve, have occured,
in this ftate, where the fame latitude of pewtr as exercifed in
England, has beeerj attempted. For rruw oj the power and duty
of conji able fee title 4 Conftable.'
Itfeems agreed, that a conftable is not only impowered, as
all private perfotis are, to part an affray which happen in his
prefence, but is alfi» bound at his peril to ufc his b-ft endeivours
to effect this purpofe; and not only to d > his beft endeavours
himfelf, but alfo to demand the affiftar.ee of o her-, which if
they refufe to give him, they are puniihablc with fine and im-
prifonment. 1 Hawk, 137.
And it is faid, that if a conftable fee perfons either actually en-
gaged in an affray, as by ftriking or offering to hike, or drawing
their weapons, or the like; or upon the verj point of entering upon
an affra', as where one fhall threaten to kill, .wound, or beat
another, he may cither carry the offender before a juftice, to find
furefes for the peace, or he may imprifon him of Ins own au-
thority f .r a reaibnable time, till the heat mall be over, and
alfo afterwards detain him 'till he find tuch lurer/ by obligation*.
But it Teems, that he has no power to imp.ifon iuch a:i offen-
20
affray:
der in any other manner, or for any other purpofe; for he can-
not juftify the committing an affrayer to jail, till he fhall be pu-
nifhed for his offence: And it is faid, that he ought not t» lay
hands on thofe, who barely contend with hot words, without
any threats of perfonal hurt, and that all he can do in fuch cafe,
is to command them tinder pain of imprifonment to avoid fight-
iog. i Hawk. 137.
But he is fo far intrufted with a power over all a&ual affrays,
that tho* he himfelfis a fufferer by them, and therefore liable to
be objedfed againft as likely to be partial in his own caufe, yet
he may fupprefs them ; and therefore, if an affault be made upon
him, he may not only defend himfelf, but alfo imprifon the of-
fender, in the fame manner as if he were no way a party, 1,
Hawk. 137.
And if an affray be in a houfe, the conftable may break open
the doors to preferve the peace; and if affrayers fly to a houfe,
and he follow with frefh luit, he may break open the doors to
take them. 1. Hawk. 137,
But it is faid that a conftable hath no power to arreft a man
for an affray done out of his own view, without a warrant from
a juftice, unlefs a felony were done or likely to be done; for it
is the proper bufinefs of a conftable to preferve the peace; not
to punifh the breach of it. 1 Hawk. 137.
IV. How jar by a Justice of the Peace.
There is no doubt but that a juftice of the peace may and
muft do all fuch things to that purp >fe, which a private man or
conftable are cither enabled or required by the law to do: But
it is faid, that he cannot without a warrant authorife the arreft
of any pcrfon for an affray out of his own view; yet it feems
clear, that in fucli cafe he may make his warrant to bring the
offender before him, in order to compel him to find fureties for
the peace. 1 Hawk. 137,
V. Pwiyhment of an Aefray.
All affrayers in general are punifhabie by fine and imprifon'-
ment. 1 Haivk. 138.
And as, under the common law, they may be inquired into,
in the leet, as common nuifarxes; there can be wo doubt but
that they may be prefented by the grand jury. 3, Inji. 158.
VI. Precedents of warrants, indiBments &c.
again]} Affrayers.
1. Up 11 complaint made to r. juftice of the peace, he may
iliue his warrant to apprehend the offender; but if it be upon the
application
K F F K • A Y.
21
t . •
gppVcatiqri of any particular perfon, he fhould firfl adminifter to
feira the following oath. - -
7 be information which you fall give againjl. A Qj
of the county of. ■ ..labourer, Jhall he the truth the
wholetruth, andnothing butthe truth. So help you Goli
Warrant to apprehend affrayers.
To all con/babies and other officers in the county of
county to wit.
- . , Whet eas A I, of the faid coitniy gentleman, hath this
day made oath before me P, S, one of the Commonwealth's jujlices
of the peace for the county aforefaia, that on the day of in
the year of our Lord quel of the Independence of the common•
wealth of Virginia the AO, of the county of aforefaidt
fibourer, and B Q, of the /aid county, labourer, at in the
faid county, in a tumultuous manner made an affray, wherein the
perfon of the faid A I, was beaten and abufed by them the faid
A O,. and B O, without.any lawful ot faffcientprovocation gi<v-
en to them or either of them, by him the Jaid A I. fhfe are there-
fare to command you forthwith to apprehend the faid A O, and
B O, and bring them before me, or fame other of the common-
wealth's jujlices of the peace for the faid county, to anfwer the pre-
mifes. Herein fail not, at your peril. Given under my hand
andfeal this day of. one ihbufand*i5c. *
. When the offender, is apprehended by this warrant, and brought
before the jufttce, he may admit him to bail, or refufe it, on
due confideration of the nature and circumflances of thd cafe 5
and on this fubje£t, the act of Affembly concerti ng bail, will
heft regulate his conduct. See title 4 Bail/
. The fum in which the offender and his fecurties fhould be
bound, is left to the difcretion of the magiftrate; but it ihouli
be recoile£ted that exceffive bail, fhould in no inftance be re*
quired, from the exprefs letter of the declaration of rights.
//. "Recognizance of RaiL
Memorandum, on this day of in the year if our Lord
and in the year of the independence of the commonwealth
of Virginia, perfon ally came before me P S, one of the commonwealth's
jujlices of the peace for the county of AO, of the county afore-
faid, labourer, and B R, >and C R, both of the fame county, car-
penters, and acknowledge that they owe to ' e[quire governor
ar chief magijlrate of the commonwealth of Virginia, namely, t'.e
faid
* In all criminalprocefs the dates Jhould be written in words at
length. D.
22
AFFRAY.
Jaid A O, fifty dollars, * and the faid B R, and C R, eat 7j re-
fpeftiveiy twenty-five dollars, current money; to be levied of their
refpeftive goods and chattels, lands and tenements, /<? z//<? of the
faid commonwealth if default is made in performance of the
condition here under written,
Ihe condition of this recognizance is fuch that if the above bound
A O, Jhallperfonally appear before ihe commonwealth''s j offices of
the paace, at the next court to be held for the county of to an-
fwer to Juch matters as Jhall then and there be objefted againjl him
by A I, of the faid county, gentleman, concerning the a faulting,
beating, and wounding the faid A I, by him the faid A O, and
concerning other mifdemeanors tending to a breach of the peace, and
if he do not depart without leave of the court, then this recogni-
zance to be void, or elje to remain in full force and virtue.
The condition of the recognizance being read to the parties,
the juftice fhould take their acknowledgement in the following
manner. You AO, acknowledge yourfef to be bound to efq.
governor &c. in the fum of fty dollars, and you B R, and
you C R, in twenty-jive dollars each, to be levied of your refpec-
five goods and chattels idc.
The juftice muft certify this recognizance to the next court,
in order that further proceedings may be had thereupon j and if
it appears to the court upon heaiing the evidence, that there is
juft caufe of profecution, they will direCt the attorney for the
commonwealth to prefer an indictment againft the offender, and
may commit or bail him, or bind him to his good behaviour,
for any time, in fuch fecurity and fum, or difcharge him as they
fhall judge rnoft proper to be done, ftarke. V, J,
If the offender fails to comply with his recognizance to ap-
pear before the court, the clerk muft record his default, to en-
title the commonwealth to its forfeiture; or if, when brought
before trie juftice, he refufes to enter into a recognizance, or
give fecurity, he muft be forthwith committed by fuch juftice.
III. Mittimus.
To the jherijf of county, or keeper of the jail of the fid county *
County to wit.
Thefe are in the name of the commonvjealth, to command you to
receive into your jail the body of AO, late of the county aforejuid
labourer,
* Since the aft of Congrefs altering the denomination of our mo-
ney, from pounds, foldings, pence and farthings, to dollars, dif-
mcs, cents and mills, and the aft of Afembly of 1792 (Y, /. 21S.J
adopting the fame, it jetms more proper, to exprefs all funis ofticu
ally mentioned by "JuJlices of the Peace in dollars•
AFFRAY. 23
labour try take *1 by my warrant, and brought before me> being charg-
ed upon oath, by A I, of the /aid county, gentleman, with a/fault-
ing, btatlngy and wounding the faid A I, />z an affray, by the
/aid A O, and otherj, /.vtay made ; and that you fafeiy keep him
in your/aid jail and cuftody, until he be thence d'tjchwged by due
courje of law. Given under my hand and feal this day of
in the year of our lord
Where the commitment is for an affray, cr for threatening
£nd ftriking in the prefence of the juftice, the mittimus may be
as follows;
To the Jheriff above.
County to wit.
I fend you herewith the bodies of "of &c. and of &c.
whom 1 require you, in the name of the commonwealth to re-
peive into your cuftody, being convicted, by my own view, of
an affray by them made in my prefence; and you are hereby
commanded to keep them and each of them, the faid and
fafely in your jail, until they, or either of them refpe&ive-
ly, fhall procure two fufficient perfons to be bound with them,
or cither of them, feparately, to the governor or chief magiltrate
of the commonwealth ol; Virginia;' that is to fay, each of the
fecuritics in the fum of' dollars, and'the faid and
each, in dollars, to appear at'the next court to be held for
the faid county of to anfwer the premifes, and in the mean
time to be of good behaviour, or until they, or either of them
fhall be otherwife difcharged by due courfe of lav/. Given un-
der my hand and feal &c.
If a conftable takes the offender on his own authority, and
carries hirn before a juftice to whom he refufes to give fecurity,
the mittimus may be drawn in the fame form, except that the'
caufe of commitment fhould be varied and very deary fet forth.
V, Indictment for an af fray generally. •
county to wit. %
The jurors for the holy cf the county af ore/aid, upon their oath
do prefnty That A O, of the county cf of or efaid tayl'Wy and
B O, of the /aid county, llackjmithy "with force and armSy on the
day of in the year of bur lord and in the year of
the independence of the commonucalih of Virginiuy at the county
atorejaidy being arrayed and unlaw!idly afemhlcd together in a
warlike mannery did make an affray, to the terror and J.ifiurbance
of divers of the citizens of ibis commsnwealthy then and there being;,
and to the evil example of all other the citizens of the faid c-m-
monwealihy and againfi the peace and dignity oj the commonwealth.
24
AFFRAY,
VI, Indictment for an Affray and beath.g another,
county to wit.
The jurors far the body of the county of aforefaid,, up*
en their oath do prejent that a o, late of the 'partjh of in tht
county of aforefaid, clerk, and B O, late of the farijh of in
the fame county merchant, with force and arms, on the day of
. in the year of our lord - and in the year of the com*
monuiCalih of Virginia, 'at the county bf aforefaid; of their malice
ijorethought made an ajjault and affray in and- upon one r s, of
the faid county, yeoman, then and there being in the peace of GodJ
and of the commonwealth' aforefaid, and ftruckupon the ke.-d, the
faid r s, with certain fwar as, zihich the faid a o, and il o,
then and there fever ally held in their■ right hands, and then and
there gave to the faidli. S, divers wounds, which put him in great
danger of his life, fo that his life teas greatly d'fpaired of, to the
bad example of other citizens of the faid commonwealthj and againjl
the peace and dignity of the commonwealth.
The foregoing precedents, under this title, are adapted to af-
frays confidered as offences at the cojnmhn law. It yet re-
mains to diftufs the duty of a Juflice cf- the Peace, in fuppreffrig
an affray prohibited by the aft,of Affembly (V. 1,33) This {la-
tute feems to contemplate twodillindf offences; the one, where
the affray is made in prefence of a court of juflice, or its mfni-
flers of juitice, doing their-office, the other, where the affray
3i ii'es from going armed, * in fairs or markets, or in other pla-
ces, in terror of the country.' In the firff mftance, the puniih-
meni is a foifeiture of the armour, and imprisonment of the ofr
fender at the pleafure of a court; in the fecond, a forfeiture of
the armour alio, and imprifonment for fo long time as a jury to
be fworn for thaf purpofe, by the juftice committing the offen-
dcr, either upon his own view, or proof by others, fhall direct,
which imprifonment however cannot exceed the fpace of onp
month. - See the a£l ante page 17, - • . •
VII. Warrant to fummon a Jury.under the
1 above recited a£t. '
county to wit. '• • " - -
do the ccnjtable of in the faid county,
II hereas it -hath been fully proven to me by the oath of a j, and
J> j, of thejaid countythat A O, of the county aforefaid, la~
tourer, ar ah O, cj the faid county, labourer, on the day of
> in the year of our lord and in the year of the conn
monwcalth oj Firgitda, with force and arms, viz, with j words,
guns, and ether warlike ir.jtrurncv.ts, at ■ in the county afore-*
Jaid, being arrayed, and unlawfully affembled together in a war-*
like
AFFRAY.
25
like manner, did make an affray, by riding armed as aforefaid\ in
the faid county^ in terror of the country: Thejfe are therefore to re-
quire you, in the name of the commonwealth, immediately upon
fight hereof to fummon twelve good and lawful men of the vicinage
of the faid ■ in the faid county to be and appear before me J P,
one of the1 commonwealth's jujlices for the faid county, at afore-
faid in the faid county, on the day of then and there to en-
quire of do, and execute all fuch things as oti the commonwealth's
behalf Jhall be lawfully given them in charge touching the affray
aforejaid. And be you then there to certify what you Jhall have done in
the premifesy and further to do and execute what in behalf of the
faid commonwealth (hall be then and there enjoined you. Given
.under my hand andfeal this ' ' day of in the year of our
lord
As it is probable there will feldom be occafion to enforce this.
a&, I fhall add no other precedents founded on it; but only ob«
ferve that the form of the onth to be adminiftced to the jurors
&nd witnefles, will naturally arife out of the fubjeft.
APPEAL S.
AN appeal in its common legal acceptation is the removal
of a caufe from an inferior to a fuperior jurifdi&ion.
It is alfo a profecution againft a fippofed criminal offender,
by the party's own private a&ion, and which, in refpe& to the
offence, isffikewife a profecution for the commonwealth. 2
Hawk. 155. - • * '
• But as this pra&ice has become obfolete even in England,
and, I believe, was never adopted in America, it will not be
peceflary to enlarge further upon it.
The practice of appeals in civil cafes, as regulated by the
laws of this c6mm on wealth, not falling within the plan of this
publication, and being eafily found in the Revifed Code of laws,
printed in 17 94, it will be fuflicient to refer to that work, for
more particular information.
APPRENTICES.
APPRENTICES (from apprendre, to learn) are ufually
bound for a term of years, by deed indented, to ferve
their matters, and be maintained and inftru<Sted by them. 1
Slacks* 426.
In treating of this fubje& I fhall ihew.
-26 APPRENTICES,
I. Who may be bound apprentice.
II. By whom they JJjail be bound.
III. The planner in which they Jhall be bound\
IV. Reciprocal duties of majter and apprentice*
V. II jw the grievances of an apprentice fhall
VI. Adjudged ayes on thefnbjeft ofapp r enticef ips*
VII. Predecents:
I. Who may be bound Appr entice.
I. Poor orphans &c.—See V. 1. p. 182. fe&. 11,
2„ Wards. Ibid. Seel. 12.
3, Baftards. See V. 1. p. 193. fe&. 25.
See alfo V. 1. p. 335. fe£t. 12.
II. By whom they fall be bound.
This duty belongs either to the overfeers of the poor, as in
the cafe of poor orphans, or bajlards\ or to guardians, who may,
with the approbation of the court bind out their wards.—See V.
1. p. 191. fe<5h 9.—Hid. p. 193. fe<5l. 25.—Ibid, p.' 182. fe&.
III. The manner in which they fall be bound.
It has been already feen under the two former diviflons of this
title, who may be bound, and by whom: but as thofe cafes re-
fpeA chiefly apprentices, who are compellable to be bound,
tinder the laws of this commonwealth, it will be neceflary here
to enlarge the fubjedt, and to confider alfo the manner in which
apprentices are to be bound by the common,law.
One cannot be bound an apprentice without deed. 1 Salk, 68.
By the common law, 'perfons under the age of 21 years
could not bind themfelves in fuch a manner as to entitle their
matters to an adlion for a breach of any covenants of their in-
dentures; and therefore it has been cuflomary for the parent,
or friend to become party to the indenture in their behalf. Bac.
Jhr. Mafter and fervant.
Altho' by the laws of this commonwealth the county and cor-
poration courts are poiTefled of power to ' hear and determine
'complaints of matters or mittreifes againfl: their apprentices or
hired fervants, for defertion without good caufe, and may ob-
' lige the latter, tor lofs thereby occalioned, to make retribu-
' tion, by further fervices after expiration of the times for which.
12.
'they
APPRENTICES. 27
* they had been bound,'—(Virg. laws p. 183. '258*) Yet it
hath been determined under fimilar laws in England, that this
power extends to the compuliion of Jervice only, and that neither
by the common law nor by the ftatute, will the covenant of an
infant bind io far as t® give the mailer an a&ion againft him
for a breach of the covenant, C/o Car. iffy
But if his father or other pcrfon doth covenant for him, fuchr
Covenant {hall bind tl father or fuch other perfon: as in the
cafe of Whitley ani Loftus. In the indenture of apprenticelhlp,
the father covenants to pay the apprenticelhip m6ney; the fon
covenants-to account for his mailers goods; and in the' conclu-
fion, the father and fon each bind themlelves for the true per-
formance of all covenants therein. By the court: The end of
binding the father was to anfwer wrongs done by the fon, and
he multianfwer for any; and the covenant that each did bind
himfelf mull be fo, where the fon is bound to perform the thing
for which the covenant was made; and this claufe is ufually in-
ferted, that the covenants may be taken diftributively, to wit,
that each of the covenantors Ihould perform his part; and this
makes the covenant of the fon bind the father, who covenanted
for him as well as for himfelf. 8. Mod. 190.
So, in the cafe of Branch and Ewington (Doug. 500.) it was
held by lord Mansfield, in an a6licn by the mailer againft the
father of the apprentice bound by indenture in the common form,
that the father was liable for the elopement of the fon from the
ferviceofhis mailer, notwithftanding there were noexprefs cove-
nants on the part of the father to be anfwerable for l'udi elope-
ment, and altho' the llatute had given the hialler another re-
medy by a retribution in fervices.
And as the infant may be bound by indenture, fo the appren-
ticelhip may be determined by con lent of all the parties concern-
ed; which ira the cafe of parilh poor children, includes the pa-
rilh officer; in other cafes the father (or guardian,) mailer, and
infant. Burrow'sfttlemeut cafes. 562. 706.
But a covenant between the mailer and a third perfon, the
infant not being party, maketh not an apprenticelhip. 2. Salk.
479-
IV* Reciprocal ditties of mafler and apprentice.
Befides the exprefs covenants ufually inferted in indentures of
apprenticelhip, which the mailer and apprentice are mutually
bound to perform, there exiil other relations between them,
which deferve to be noticed.
Thus a mailer may by law ch. diS am1 correct his appien-
tice, fer neglect or ether mill thevi ur5 f h b. dme wir 1 mo-
deration:
28
apprentices:
deration: Tho* it doth not feem to be lawful for the matter cr
miftrefs to beat any other fervant of full age. i Blacks. 428. .
So, it hath been determined that where an apprentice became
lame, and in the opinion of furgeons incurable, the matter ought
not to be discharged of him; for the. matter takes the apprentice
for better for worfej and fhould provide for him. in ficknefs and
in health. Sir. 99.
So, it was adjudged that a maifter could not compel his ap-
prentice to go beyond fea, if he did not go with him, unlefs the
nature ot the apprenticeftiip imported it, as if the maftet was a
mariner, or merchant adventurer. Brownl, 67. i&£>. 134.
V. How the greivances of art apprentice Jhall he
redrefjed. , _ ^
The mode of proceeding in this cafe, is prefcribed fey Vtrgi-
ma laws, page 183. fe£t. 15. which fee.
This a & does not djredt the matter or miftrefs to be fummon-
ed on the complaint of an apprentice, yet natural juftice feems to
require it, and orders of feffions in England have been quaffed
becaufe it did not appear that the matter had been fummoned,-
or was prefent. See Sir, 143. 1013.
VI, Adjudged cafes on the fubjefl of apprenticejhips.
There yet remain feveral points worthy of obfervation, on this
do&rine, which are not eafily reducible to any particular divi-
fion of the fubjedt. They will therefore fee tolle&ed in this
place, and will complete the prefent title.
It feems now to be fettled that an apprenticeftiip being a per-
fonal truft, becomes determined by the death of the matter; un-
lefs there are fpecial words in the indenture to the contrary.
Bur. Set. Ca. 320.
But altho' it is held that the covenant for inftru&ion fails by
the death of the matter; yet the apprentice continues fo as to
maintainance out of the eftate of his matter, on the covenants
to maintain. See 1 Salk. 66.
The above points appear to be recognized in the cafe of Bax-
ter (widow and executrix) againft Burjield, In debt on a bond
conditioned for Mathias Anderfons performance of the covenants
in an indenture of apprenticeftiip, whereby he was bound to the
plaintnT's teftator who was a mariner; the defendant pleaded
that Anher'jon feived fai.hfully to the death of the teftator. The
plaintiff replied that fmce the death of theteffator, Anderfn had.
ablconded from her fervice. To this replication the defendant
demurred. And after argument at bar, Lee, C J, delivered
the
APPRENTICES.
&g
the refolution of the court, that they were all cf opinion the de*
fendant (hould have judgment, and that the executiix could
maintain no fuch'adfion. The binding was to the man to learn
his art and ferve him, without any mention cf executors. And
as the words are confined fo is the nature of the contradl; for
it is fiduciary, and the apprentice is bound from a perfonal know-
ledge of the integrity and ability of the matter. Hillary term.
8 Anna, Home v Blacky an award that an apprentice lhould
be affigned was held void, unlefs there was a cujhm, or concur-
rence of the apprentice ; and they held it nut material irhac ac~
cording to the cafe in Cro. Eliz. 553. the affets were liable on
the matters covenant to maintain. Str. 1266.
' The words in Cro. Eliz. are, 4 that covenant lies, againft an
4 executor, in every cafe, tho' not named, unlefs it be fuch a
4 covenant as is to be performed by the perfon of the tettator
4 which they cannot perform '
It is now certainly eftablifhed that apprentices bound by or-
der of court cannot be affigned from one matter to another with-
out the confent of the court in which their indentures are lodged.
See Virg. laws. p. 182.
Yet it hath been determined that an attighment of an appren-
tice by confent of all the parties, and an adtual reiidence during
the time required by ftatute was fufficient to gain him a fettle-
ment in the iaft parifh, Sir. 1155.
The power of the court in dire&iflg money to be refunded,;
on the difcharge of an apprentice with whom it had been given,
feems confequential upon their power to difcharge, tho' not ex-
prefsly mentioned in the a£t,—See 1 Salk. 68. 2. Bac. Abr.
matter and feivant.
If ah apprentice flee from bis matter's fervice and gain money
by the fame, or a different occupation, the matter is entitled to
receive it. I Vezy. 83.
Inticing away an apprentice from his rhafter, is not an cf-
fence of a public nature for which an indictment will lie5 but
the party's remedy is by an aCtion on the cafe, which he may
Well maintain. 6 Mod. 182. Burrow. 1306.
VII. Precedents.
I. Indenture of an apprentice bound by the over-
Hers of the poor under an order of court.
4 This Indenture made this day of in the year of our
4 Lord and in the year of the independence of the United
4 States of America, between A B, and C I), ovofeers of the
' poor of dittridl, in the county cf ot the one part, and
L. '.AM,
APPRENTICES.
4 A M, cf faid county cf the other part, witnefletb, that the
1 faid A B, and C D, overfeers of the poor as aforefaid by vir-
4 tue of an order of the court of the aforefaid county, bearing
4 date the day of in the year have put, placed and
f bound, and by thefe prefents do put place and bind A P, a
4 poor boy, whofe parents B P, and C P, are not able to main-
4 tain him, of the age of years, to be an apprentice with him
4 the faid A M, and as an apprentice with him the faid A M,
4 to dwell from the date of thefe prefents, until the faid A P,
4 fhall come to the age of 21 years, (or, if a female, until the
4 faid A P, fhall com? to the age of 18 'years) according to the
4 a£t of the General AfTembly in that cafe made and provided.
4 By and during all which time and term, the faid A P, fhall
4 the faid A M, his faid matter well and faithfully ferve, in all
4 fuch lawful bufinefs as the faid A P, fhall be put unto by his
4 faid matter, according to the power wit and ability of him the
4 faid A P, and honeftly and obediently in all things fhall hehave
4 himfelf towards his faid matter, and honettly and orderly to-
4 wards the reft of the family of the faid A M. And the faid
4 A M, for his part, for himfelf, his executors, and adminiftra-
4 tors, doth hereby promife and covenant to and with the faid
4 overfeers of the peor, and every of them, their and every of
4 their executors and adminiftrators, and their and every of their
4 fucceflors tor the time being, and to and with the faid A P,
4 that he the faid A M, fhall the faid A P, in the craft, myftery
4 and occupation of a taylor, which he the faid A M, now ufeih,
4 after the beft manner that he can or may teach inftrudt and
4 inform, or caufe to be taught inftru&ed and informed as much
4 as thereunto belongeth, or in any wife appertaineth : And
4 that the faid A M, fhall alfo find and allow unto the faid ap-
4 prentice futticient meat, drink, apparel, wafhing, lodging, and
4 all other things needful, or meet for an apprentice during the
4 term aforefaid : And alfo that the faid A M, fhall teach, or
4 caufe to be taught to the faid A P, reading, * writing, and
4 common arithmetic including the rule of three; and will
4 moreover pay to the faid A P, the fum of twelve dollars, at
4 the expiration of his aforefaid term. In witnefs whereof the
4 parties to thefe prefents have interchangeably fet their hands
4 and Itals the day and year firft above written.
* The aft of rfffenilly cxprcfsly dirt els that the indentures of an
apprentice bound out by the overfeers cf the poor, fell contain thefe
laji covenants, befules the ufual ones of teaching the apprentice fome
art, or bufinefs, &c.
APPRENTICES.
31
II. Indenture of an apprentice bound together ivith
his father.
4 This Indenture made this day of in the year of our
* Lord and in the year of the commonwealth, between
4 A F, and B S, of the bounty of of the one part and D M,
4 of the faid county of "the other part witneffeth, that the faid
4 B S, volu'ntariLy, and with the approbation of the faid A F,
4 his father, bath put placed and bound himfelf, and by thefe
4 prefents doth, put place and bind himfelf to be an apprentice
4 with, him the faid P M, and as an apprentice with him the
4 laid D M, to dwell 'till the faid B §, lhall attain the age of
4 21 years, which will be en the day of in the year
4 During all which term'the faid A F, and B S, doth covenant
4 and agree to and with the faid D M, that the faid B S, the
* faid D M, fhall well and faithful ferve in all fuch lawful bufi-
4 nefs as the faid B S, flicll be put unto by his faid ma iter, ac-
4 cording'to the beft of the'power, wit, and ability of him the
4 faid B S, and honeftly and obediently fhall behave himfelf to-
4 wards' the faid D M, and honeftly and orderly towards the fa-
4 rnily of the faid D M. And the laid D M, on his part, doth
4 covenant and agree to, and with the faid B S, that he the faid
4 D M, will well and truly inftrucf the'faid B S, in the art of
4 myftery of a carpenter,"' v/hich the faid D M, now followeth,
4 and will ufe all due diligence to make the faid B S, as perfect
4 in the faid art or mvftery of a carpenter aS poffible. And that
i the faid D M, will allow to the faid B S, good and fufficient
4 meat, drink, apparel, wafhing, lodging, and all other things
4 fuitable for an apprentice during the laid term, And alio &c.
4 (the parties may infert any ether covenants which may be agreed
4 on.) In witnefs whereof the parties to thefe prefents have
4 hereunto fet their hands and affixed their feals the day and year
4 firft above written,,
Arms. See Slaves.
ARRAIGN M_ E N T.
WHEN an offender comes into court, or is brought in
by procei's, fometimes by capias and femetimes oi ha-
leas corpusdirected to the jailor of another prifon, the firft thing
that follows thereupon is his' arraignment 2 Id. H. 216.
Arraignment is nothing elfe but calling the ofTcnder to the
bar of the court, to arifwer th£ niatter charged upon him. 2 II.
2i§.
The
ARRAIGNMENT.
The prifoner on his arraignment, tho* under an indidfmenfc
of the higheft'crime, muft be brought to the bar, without irons£
and alf manner of (hackles or bonds, unlefs- there be a danger
of efcape, and then he may be brought with irons. 2 H. H. 219;
Alfo there is no neceffity that a priloner, at the time of hfi
arraignment, hold up his hand at the bar, or be commanded fo
to do; for this is only a ceremony for making known the perfon
of the offender to the court j and if he anfwers that he is the
fame perfon it is all one. 2 Hawk. 308.
Accordingly this ceremony was difpenfed with in the cafe of
the King and Radcliffe. See I Blacks* Rep* 3*
ARREST.
AN arreff, in law, fignifies, the reftraint of a man's perfon,
depriving him of his own will and liberty, and binding
him to become obedient to the will of the law: and it may be
called the beginning .of imprifonment, Lamb* 93.
Under this title, which will chiefly-be confined to arrets in
criminal cafes,) 1 (hall (hew,
I. ■ Who may or may not be arrejled,
II. For what caufes offujpicion an drrefi may be,
III* By whom the arrejt jhall be made*
IV. The manner of an arrejt. '
V. What is to be'done after the arrcji.
1* Who may or may not be arrefted.
Peifbns privileged from arrefir in civil cafes, are,
I. All perfons on Sunday.— SeeF.L.p. 1291 fed. 16.
1. Perfons attending their duty at any muftej- of militia,
or any ele&ion of members of the ftate legislature, or of the
United States, - ■■■■•-! ior of electors,to vote for a prefident •
witnefletvduly fummoned, and a'tending on any furvey made by
order of court, or on commiflioners appointed to take depofiti-*
ons in the.cafe of- cont^fted ele&ions,-, are privileged from
arreft except for treafon, felony &c.—See V. I p. 129. fed, 16.
3. TFitneJJes attending at .co.urt &c. being - duly fummoned,
and a dually a witnefs in the caufe expreifed in the fubpeena, are
privileged .during their attendance, and in coming to and return-
jng from thence, allowing one day for every twenty miles from
their places of abode —See V. L p. 289. fed.
4 The fame privilege is allowed to tied or*.—See V. I. p
33. jid* 7- " . . 5.
f R R E S T. 33
£. Alfo to grand jurors.—'See V. I. f> 107. fefl. 8.
6. And to members of the General Jfjembly j during whofe
privilege procefs in which they are parties fhall be fufpended;—•
if delivered by privilege from execution, they fhall return as
foon as the privilege ceafeth, or be liable to an efcape.—See V.
I. p. l&.feft, 19. -
7. The Governor Members of the Privy Council——■
Judges of the Superior Courts and the Sheriff of any county,
during his continuance in office, cannot be arrelted by the ordi-
nary procefs; but inftead thereof a fummons fhall iifue &c.—■•
See V. I: p. 83.fefi. 23.—And in all fuch cafes, after judgment,
and the return of a fieri facias^ by the fheriff of the county in
which the defendant refides, that no effedts, or not fufficient
are to be found, a capias adJatisfaciendum may iffiie as in other
cafes.' : Ibid. <
8. Any"minifier of religion liccnfed according to the rules of
his fe£t, who has taken the oath or affirmation of fidelity to the
commonwealth, while he is publickly preaching or performing
religious worlhip, in any church, meeting-houfe &c.—K.
L pi 2S7. fiedt. 3. ■"
9. A corporation cannot be arreficd., but the procefs is a dif-
tringas. 3, Salk: 4.6.
' But none of thole privileges from arreft extend to cafes of
treafon, felony, riot, breach of the peace, or an efcape out of
prifon or cuftody.-—See V. U p. 129. fiedi. i6»
II. For what caufes oj fufpicion an arreft may be.
The caufes of fufpicion which are generally held fufficient to
juftify the arreft of an innocent perfon are thefe which follow:
(1) The common fame of the country; but it feems, that it
ought to-' appear upon evidence, in an adfion brought for fuch
arreft, that fuch fame had feme probable ground. 2 Hatv. yb.
(2) The being found in fuch circumftances as induce a ftronc
prefumption of guilt; as coming out of a houfe wherein mur-
der hath been committed, with a bloody knife in one's hand; or
being found in pollelff.n of any part of goods ftolen, without
being able to give a probable account of coming honeftiy by
them. 2 Haw 76.
(3) Tlte behaving one's ielf in fuch a manner as betrays a
confcioufnefs of guilt; as where a man accufed of felony, .on
hearing that a warrant is taken out agamft him, doth ablcond.
2 Haw. 76.
But the party who flics from, an arreft for a capital offence,
is not thereby guilty of a capital oftence. ?. Hawk. I'll.
(4)
34
A R R E S T.
> (4) The being found in company with one known to be an
offender, at the time of the offence, or generally at other times
keeping company with perfons cf fcandalous reputation. 2 Haw,
76. 2. lnjl. 52.
(5) The living an idle, vagrant, and diforderly life, without
having any vifible means to fuppoft it. 2 Haw. 76.
(6) The being purliied by hue and cry. 2 Haw. 76. for if
a felony is done, and one is purfued upon hue and cry, that is
not of ill fame, fufpicious, unknown, nor irididled, he may be
attached and imprifoned by the law of the lalnd. 2. /$/?. £2.
But generally, no fuch caufe of iufpicion, as any of the above
mentioned, will juffify an arreft, wherein truth no fuch crime
hath been committed; unlefs it be 1.7 the cafe' of hue and cry,'
2 Httzv. yb. ' '
In the cafe gf Samuel againff Payne and others, (Doug•. 345}
the plaintiff Samuel brought an action' of- trefpafs and falfe im-
prifonment againff: Pay-tie a conftable and two'others, the facts
were thefe: Hall one of the defendants, charged the plaintiff
with having ftolen fome laceS from him which he faid were in
the plaintiff's home. A fearch warrant was granted by 'a juf-
tice upon this charge, but there was no warrant to apprehend
him. On the fearch,* the goods were not found, however,
Payne, /iff'/, and the other defendant an affiftant of Payne, ar-
retired the plaintiff and carried him before a magiftrate, who upon
examination difchai'ged him. The caufe was- tried before lord
Mamfietd, and a verdifff found againft all the three defendants.
At the trial, the court and counfel on both fides looked upon the;
rule of law to be, that if a felony hath adtually been committed,
any man, upon reafonable probable grounds of fufpicion, may
juffify apprehending the fufpected perion to carry him before a'
magiffrate but that, if 110 felony has been committed, the appre-
hending of a pcifon lufpecfed, cannot be juftitied by any one.
The court thtiefore left it to the jury to confider whether any
felony had been committed. The rule, however, was conffi
tiered as inconvenient and narrow, becaufe if a man charges
another with felony, and requires an officer to take him into
cuffody, and carry him before a magiffrate, it would be moft
miichievous that the officer fhould be bound firft to try, and at
his peril exercile his judgment on the truth, of the charge. He
that makes the charge flioul-d alone be anfwerable. The offi-
cer doth his duty in carrying the accufed before a magiffrate,
who is authorized to examine, and commit or difcharge. On
this ground, a motion was made for a new trial; and, after
caufe fhewn, the court held, that the charge was a fufficient
iufi.ffcation to the c en it able, and hff. affiffaiit,' and the rule for
a new
ARREST:
35
a new trial was made abfolute, On which new trial a verdicf
Was found againft Hall, and for the other two defendants,
III. By whom the arrejl Jhall be made.
1, In criminal rafes, a perfon may be apprehended and re-
{trained of his liberty, not only by procefs out of fome court, or
warrant from a magiftrate, but frequently by a conftable,
watchman, or private perfon, without any warrant or pr?cept.
2. Thus all perfons, who are prefent when a felony is com-
mitted, or a dangerous xvound given, are bound to apprehend
the offender, on pain of being fined and imprifoped for their
negleft. 2 Haw. 74.
Alfo, every private perfon is bound to affiff an officer de-
manding his help, for the taking of a felon, or the fuppreffing
of an affray. 2 Haw. 75.
If a private perfon have a prifoner in cuftndy arrefted on fufc
picion of felony, treafon, or murder, and negligently fuffer him
to efcape before he is committed to jail, he may be fined, on
being found guilty in the diftridt court, where the efcape was
fuffered V. L p. 127.
3; Aifo, a watchman may arreff a night walker, without any
warrant from a magiftrate. 2, hji. 52.
4. In like manner, a conftable, may ex officio arreft: a brea-
ker of the peace in his view, and keep him in his houfe, till he
can bring him btfore a juftice. 1 H. H. 587.
5. Or any perfon whatfoever, if an affray be made to the
breach of the commonwealth's peace, may without any warrant
from a magiftrate, reftrain any of the offenders, to the end the
commonwealth's peace may be kept; but after the affray is end-
ed, they cannot be arrefted without an expreis warrant. 2 Inji. 52.
6. So much concerning an arreft without a warrant; next
follows arrefting with foeh warrant:
7. The warrant is ordinarily dirc<9ed to the flier iff" or confta-
ble, and they are indidtable, and fubjedt thereupon to a fine and
imprilonment, if they neglect or refufe it. 1 H. H. 581.
if. If it be directed to the fherifF, he may command his under
fheriff"to execute it; but a conftable cannot depute and muft
perfonally execute it. 2 Hawk. 86.—Yet it feems that any one
may lawfully alfift him. Ibid.
9. If a warrant be generally directed toallconftables, no one
can execute it out of his own precindt, lor in fuch cafe it (hall
be taken refpedtively to each of them within their ftveral dif-
tridls, and not to one of them to execute it within the diftridt
of another; but if it he directed to * particular conftable (Air.
Hatvkins fay-;, -to a particular coi ill able by name,) he may exe-
cute
A R R E S l'.
cute it any where within the jurifdi&ion of the jufiicr5 but.it
not compellable to execute it out of his own conftablewick,—=
L. Raym. 546. I H. H. 581.—2 H. H.ilQ—7. Hawk. 86.
10. The jullice that iffues the warrant, may direft it to a
private perfon if he pleafeth, and it is good ; but he is not com-
pellable to execute it, unlefs he be a proper officer. I H. H.
581.
11. But by the juftices oath of office, the warrant ought net
to be directed to the party, but to forne indifferent perfon to
execute it.
12. If a wairant is directed to two or more jointly, yet any
one of them alone may execiiteit. Dalt. u 269.
IV. The manner of an arreji.
1. The officer to whom a warrant is dire&ed and delivered,
ought with all fpeed and fecrecy to find out the party, and then
to execute the warrant. Dalt, c. 169.
2. It is certainly an offence of a very high nature, to oppofe
one who lawfully endeavours to arreft another for treafon or fe-
leny: and it feems, that a perfon who fo oppofes an arreff for
treafon, whereof he knows the party to have been guilty, is
thereby guilty of the treafon; and that he who fo oppofes anar-
re It for felony, is an acceffary to the felony. 2 Haw. 121.
3. An arreft in the night is good, both at the fuit of the
commonwealth and of the citizen, elfe the party may efcape.
9 Co. 66.
4. A juftice of the peace cannot, authorife the arreft of a fe-
Ion by a warrant ifiiied by him while he is out of the county, in
which he is juftice; altho' the felony was committed in the
county in which the juftice refides. 1 H. H. 581.
5 A private perfdn cannot, raife power to arreft or detain a
fJon. 1 H. H. 601.
But any juftice, or the xheriff, upon juft caufe, may take of
the county any number that he fhali think meet, to purfue, ar-
reit, and imprifon traitors, murderers, robbers, and other felons;
or fuch as do break, or go about to break* or difturb the com-
mcnwealth's peace: and every man being required and not
aged and infirm, ought to aftift and aid them, cn pain of fine
and imprifonment. Dalt. c. 171.
And in fuch cafe it is referred to the difcretior. of the juftice,
fhcrirr, or other officer, what number they will have to attend
on them, and how and after what manner they fhali be armed
<>r otheiwife furnifhed. Dalt. c. 171.
6. As to the cafe of breaking open doors, in order to apprc-
her.d offenders, it is to be obfcp-c h that the law doth never
allow
ARREST.
37
pliow any fuch extremities, tiut in cafes of neceftity; and there-
fore, that no one can juftify the breaking open another's door to
make an arreft, unlefs he firft fignify to thole in the houfe the
caufe of his coming, and requeft them to give him admittance.
2 Haw. 86.
But where a perfon authorifed to arreft another, who is ftiei-
tered in a houfe, is denied quietly to enter into it, in order to
take him; it feems generally to be agreed, that he may juftify
breaking open the doors in the following inftances.
(1) Upon a capias grounded on* an indiftment for any crime
whatsoever; or upon a capias from the chancery or other fupe-
rior court, to compel a man to find fecuritles for the peace or
good behaviour. 2 Haw 86.
(2) When one known to have committed a tjreafon or felony,
©r to have given another a dangerous wound, is purfued either
with or without a warrant, by a conftable or private perfon;
but where one lies under a probable fufpicion only, and is not
indicted, it feems the better opinion at this day (Mr. Hawkins
fays) that no one can juftify the breaking open doors in order to
apprehend him: and this opinion he founds on Coke's 4, Jnjl.
177. and Hale's pleas of the crown. 91. 2 Haw. 87.
But lord Hale in his hiftory of the pleas of the crown fays,
that upon a warrant for probable caufe of fufpicion of felony,
the perfon to whom fuch warrant is directed, may break open
doors to take the perfon fufpected, if upon demand he will not
furrender himfelf as well as if there had been an exprefs and po~
fitive charge againft him; and fo (he fays) hath the common
practice obtained notwithftanding the contiary opinion of lord
Ctke. 1 H. H. 580. 583. 2 H H, 11 j.
And as he may break open fuch perTon's own houfe, fo much
fnore may he break open the houfe of another to take him; for
fo the ftieriff may do upon a civil procefs: But then he muft at
his peril fee that the felon be there; for if the felon be not there
he is a trefpafier to the ft ranger whofe houfe it is. 2 H. H. 117.
But it feems that he that arrefts as a private man bircly upon
fufpicion of felony, cannot juftify the breaking open doors to
arreft the party fufpe&ed, but he doth it at his peril, that is, if
in truth he be a felon, then it is juftiiiable, but if he be inno-
cent, but upon a reafonable caufe fufpeCtcd, it is not juftifiable.
1 H. H. 82.
But a conftable in fuch cafe may juftify, and the reafon of
the difference is this: becaufe that in the former cafe it is but a
thing permitted to private perfons to arreft for fufpicion, and they
are not punilhable if they omit it; and therefore they cannot
break
F.
3S A R R E S T.
break open doors; but in cafe of a conftable he is punifhable if
he emit it upon complaint. 2 H. H 92.
(3) Upon a warrant from a juftice of the peace, to find fure-
tie* for the peace or goqd behaviour. 2 Haw. 86 1, H. H.
582. 2 H. H. 117.
And in general, Mr. Daltoh fays, an ofHcer upon any war-
rant from a juftice, either for the peace or good behaviour, or
in any cafe where the commonwealth is party,- may by force
break open a man's houfe, to arreft the offender. Halt. c. 169.
(4) On a warrant to fearch for ftolen goods, the doors may
be broke open, if the goods are there; and if they are not there,
the conftable feems indemnified, but he that made the fuggefti-
on, is punifhable. 2 H. H. 151.
(5) Where forcible entry or detainer is found by inquifition
k'-'for indices of the peace, or appears on their view. 2 Haw.
£6.
(6) On a ccCias utlagatarn, or capias pro fine. 2 Haw 86.
(7) On the warrant of a juftice of the peace for the levying of
.1 forfeiture, in executing of a judgment, or conviction for it,
giounded on any fiatute, which gives the whole or any part of
ifuch forfeiture to the commonwealth. 2 Haw. 86.
(8) Where an affray is made in a houfe, in the viewer hear-
ing of the conftable, he may break open the doors to take them.
I Haw. 137. 2 Haiv. 87,
(9) If ere be disorderly drinking or noffe in a houfe, at an
nnfeafonable time of night, efpecially in inns, taverns, or ale-
houfes, the conftable or his watch, demanding entrance, and
being refuled, may break open the doors, to fee and iupprefs
the difordcr. 2 H, H. 95.
(10) Wherever a perfon is lawfully arretted for any caufe,
and afterwards efcapes, and fhelters himfelf in an houfe. 2
Haw, 87.
(11) Hut upon a general warrant, without expreftlng any
fcli.ny or treafon, or luretyof the peace, the officer cannot break
open a door. 1 H. H. 584.
(12) Neither ought doors to be broke open to take a perfon,
who is required to take certain oaths by virtue of a ftatute, be-
cauie in inch cafe the warrant is not grounded on a precedent
off-nee. 2 H w. 87. 12. Co. 131.
(13) In a civil /hit, the officer cannot juftify the breaking
cpen an outward door or window in order to execute procils.
If he doth, he is a trepafter. But if he findeth the outward door
open, and entercth that way, or if the door be opened, to him
horn within, and he entereth, he may break open inward doors
if he findeth that ncoeiUry in order to execute his piecefs. Fcjt,
319. for
ARREST.
3?
For a man's houfe is his cnftlc, for fif-ty and repofe to him-
felf and family; but if a ftrangy, who s not of the family,
up an a purfuit taketh refuse in the houfe of another, this rule
doth not expend to him, it is not his caftle, he cannot claim the
benefit of luniftuary therein. FuJ. 320.
And it is always to be remembered, thit lids ru'e mull be
Confined to the cafe 6f airefi: upon proc,ft 1 i civd fuits only.
For where a felony hath b.cn coinmittied, or ad u gerous wour>4
given, or even wher- a minifttr of juftice cometh armed with
procefs f unded o,n a breach of the p^ace; the party's own houfe
ts no fanftuary for him: in thefe cafes, the juidce which -is due
to the public muff fujoerfede every pretence of private inconve-
nience. Ibid.
(14) Finally, in all thefe cafes, if an officer, to ferve aiy
Warrant, enters into a houfe, the doors being < pen, ar 1 then
the doors are locked qpnn him, he may break them open in cr •
der to regain his liberty, 2 Haw 87.
7. If there be a w arrant againft a perfon, for a trefpafs oc
1 reach of the peace, and he files and will net yield to the arieih,
pr being taken makps his efcape ; if the officer kills him it is
murder. 2 H. H. 117.
But if fuch perfon, either upon the attempt to arreft, or after
the arreft, afiault the officer, to the intent to make his efcape
from him, and the officer ftanding upon his gu.ird kills him,
this is rio felony: for he is not bound to go bacx to the wall as
jn common cafes offe deft/ndendo^ for the law is his protection.
2 H. H'. u8. Sir. 499
But where a warrant ifiueth againft a perfon f r f deny, and
either before arreft, or after, he flies and defends himfelf with
ftones or weapons, fo that the officer muft givcov«-r his purifiifj,
or otherwife cannot take him without killing him, if he kill him
jt is no felony. And the fame law is, for a conilable that doth
it by viitue of (lis offi* e, or on hue and cry. 2 II. II. u3.
But then there muft be tfiefe cautions: 1. He rnu'l be a
lawful o.ficer; or there mult be a lawful warrant .2. The par-
ty ought to have notice of the rcafon of the pui luit, namely, be-
caufe a warrant is againft him, 3 It irufi bo a cafe of nect-f-
fity, and that not iucfi a nocefiuy as in the fonrwr cafe, vnhtie.
an afiault is made upon the officer, bu,t this is the tuceiiity,
narhtly, that he cannot otherwife be taken. 2 H. H. 119.
But tho' a private perfon m \y arreft a felon; and it he fly fo
as he cannot be taken without he be killed, it is excuiuble nt
this cafe for the neccftity; yet it is at his puit that the party be
a felon, for if he be innocent of the fclony, the killing (at lead
before the arreft) feemsat ieait manibugiitei; for au innocent;
perfon
4» ARREST.
perfon is not bound to take notice of a private perfons fufpiciom
2 H. H. 119
8. A perfon fworn and commonly known, and adlir.g within
his own precindft, need not fnew his warrant; but he ought to
acquaint the party with the Jubilance of it. • 2 Haw. 85.
And an officer giveth fufficient notice what he is," when he
faith to the party, I arreft you in the commonwealth's name ;
and in fueh cafe, the party at his peril ought to obey him, tho'
he knoweth him not to be an officer; and if he have no lawful
warrant, the party grieved may have his action of falfe impri-
fonment, Dalt, c. 169.
■ But the learned editor of Hale's hiftory obferves hereupon,
that the books referred to intend the general warrant conftitut-
ing fuch peifon an officer, as a bailiff, or the like, in a civil
action; tho' it may be otherwife in cafe of felony, becaufe in
fuch cafe a private perfon may arreft a felon without any warrant
at all 2 H. H. 116.
But if he acts out of his precindl, or is not fworn and com-
monly known, he mufl fhew his v/arrantif demanded. 2. Haw,
85 86. otherwife the party may make refiftance, and nfeeds not
to obey it. Dalt c. 169.
But if the conftable has no warrant, but doth it by virtue of
his office, as a conftable, it is fufficient to notify that he is con '
liable, or that he arreft 3 in the name of the commonwealth.
I 11. H. 503.
9. If the conftable come unto the party, and require him to
go before the juftice, this is no arreft nor imprifonment. Dalt.
c, 170.
For bare words will not make an arreft without laying hold
on ft e perfon, or otherwife confining him. But if an officer
comes into a room, and tells the party he arreus him, and locks
the door, this is an an eft; for he is in cuftody of the officer. 1
S alk 79. 2 Haw. 129. cafes in the time of lord Hardivicke.
30. It hath been holden, that if a conftable, after he hath
arretted the party by force of a warrant, fufftr him to go at
large, upon his promife to come again and find fureties, he can-
not afterwards arreft him by force of the fame warrant: How-
ever if the party return, and put himfelf again under the cuftody
of the conftable, it feems that it may be probably argued, that
the conftable may lawfully detain him, and bring him before the
justice, in puifuance of fuch warrant, but in this the law doth
jnotieem to be clearly fettled, 2 Haw. 83.
But if the party arretted do efcape, the officer upon frefli fuit
may take him again and again, fo often as he efcapeth, althos
he were out of view, or that he fhall fty into another town-or
county. Dalt. a 169, V„ .
ARREST. 41
V. What is t9 he done after the arrejl.
I. When a private perfon hath arrefted a felons or one fuf-
peeled of felony, he may detain him in cuftody till he can rea-
fonably difmifs himfelf of him; but with as much fpeed as con-
veniently'he can, he may do any of thofe three things:
(1) He may carry him to the common jail, but that is now
rarely done. 1 H. H. 589. 2 H. H. 77.
(2) He may deliver him to the conftable, who may either
carry hirn to jail or t©a juftice of the peace. 1 H. H. 589.
{3) He may carry him immediately to a juftice of the peace.
1 Id. H. 589.
If the arreft is by virtue of a warrant, when the officer hath
made-the arreft:, he is forthwith to bring the party according to
the aire&ion of the warrant: If it be to bring the party before
the juftice fpecially, then the officer is bound to bring him be-
fore, the fame juftice; but if the warrant be to bring him before
tiny juftice of the county, then it is in the ele&ion of the offi-
cer, to bring him before what juftice he thinks fit, and not in
the election of the prifoner. I H. H. 582—2 H. K. II2»
But if the time be unreafonable, as in or near the night,
whereby he cannot attend the juftice, or if there be danger of a
prefent refcue, or if the party be fick, he may fecure him, till
the next day, or fuch time as it may be reafonable to bring hirn.
2 H. H. 120.
And when he hath brought him to the juftice, yet he is in
lav/ (till in his cuftody, 'till the juftice difcharge, or bail, or
commit him: 2 H. H. 120.
But it is faid, the conftable is not obliged to return the war-
rant itfelf, but may keep it for his own juftification, in cafe he
fhould be queftioned for what he had done; but only to return
what he had done upon it. L. Raym. 1196.
Arrejtirig and avoiding judgments (fee Judgments.
Arfon, fee Burning.
ASSAULT and BATTERY.
I. AJjault, what
II. Battery, what.
III. In what cafes they may be juftified.
IK How Punijhed.
I. AiTault, what.
ASSAULT, ajfultvs^ from the French afjaylery is an at-
tempt or offer, with force and violence, to do a corporal
hurt
42 ASSAULT AND B A T T E R V.
hurt to another, as by ftriking at him with or without a wca-
pon; or prefenting a gun at him, at fuch a dillance to which
the gun will carry; or pointing a pitchfork at him, ftanding
within reach of it; or by holding up one's hit at him; or by
any other fiich like aft, done in an angry thrcatning manner. |
Hawk. 133.
And fiom hence it clearly fohows that one charged with an
■affault and battery, may be found guilty of the aliault, and yet
acquitted ot the battery: But every batte-v includes an affdult;
therefore on an indictment of uffault and battery, in which the
affault is ill laid, if the dependent be fouud gui.ty ot the battery,
it is fufticient 1 HaliL 134.. 2O3.
It feems agreed at this day, that no words whatever cai}
amount to an ailault, notwith Handing the lnany anpient opini-
ons to the contrary. 1 Hawk. 134. 263.
II. Battery, what.
Battery, (/rom the Sarton batte, a club, pr btaian, to beat,
from whence cometh alfo the wed batlL) h, when any injury
whatfoever, be it ever lb (mall, is actually done to the perfon of
another, in any angry, or revengeful, or rude, o< infolent man-
ner, as b) fpitting in his face, or any way touching him in an-
ger, or violenty jultling him out of the way, and the like. I
Hntk. • 134*
III. In what cafes they may he jnflified.
A man may juftify an affauk in defence of his perfon, or hi?
wife, or mafter, or parent, or child within age ; and may even
wound in defence of his perfon, tho' not of his poffeflions. 3
Salk, 46.
If an officer authoriftd by warant lay hands on another to ar-
jeft him, or if-a parent, in a reaionable mam er, chaitife his
child, a mafter his fervant, a fchoolmafter his icholar, or a jai-
lor his prifener, or if one confine a friend by force, who is mad,
pr if one wefts a fword from another who offers violence there-
Witt, in all thofe cafes, and many others of a limilar nature>
it u jultifirble. 1 Hawk. 130.
Alio, if a perfon comes into my houfe, and will not go out,
I may juftify lading hold of Lim, and turning him out. 3 Black
ijw. 120.
So alfo, one may juft'fy affaulting another who atterrps to
force him from his wateicourfe, or hipiway, or any other legal
pofteffion Pult. 42. L
And wiierever, a man, in his owri defence, beats another
who firft liilauks him, he may take advantage thereof, both upon
an *
assault and cattery. 43
an indi&ment, and in an a&ion} but with this diffindion, that
on' the indictment he may give it in evidence up^n fbr pica rf
not guilty but in an a&ion he muft plead it fpecialiy. 1 liawk•
134* . ,
jIF. How PuniJheJ.
Perfons guilty of this offence are punilhable both by fine and
imprifon nent, on a profecution by indiCincnt at the fuit of the
comi ionwealth; and alio in damages, by aCtior, at the fuit of
th party iijured. 1 H >wk. 134..
Warrantfor an ajjault fcsfc. "j See title 4 Warrant,' * com-
Mittimus, £ Hutment,' 4 Recoenizance,' &C
Recognizance of bail &c. J 1 Criminals,'—under which all
the neceflary jorms may be found, and the defer iptinn of the of-
fence may be drawn from the following indiChnent, and the na-
tu:e and circumftances of the cafe.
Indictment for a common ajjault.
county to wit.
The jurors of the commonwealth, for the body of t^e county afore-
faid, upon their oath doprejent, Thut A O, of the faid county,
labourer, on the day of in the year and in the
year of the commonwealth, u ith force and arms, at the county
aforefaid, in and upon one A J, t ay lor, in the peace of God, and
of the faid commonweal/h then and there being, did make an af-
fault; end him the faid A J, then and there did bent, wound,
and ill-treat, jo that his life was greatly defpaired of; and other
wrongs to the faid A J, then and there did, to the great damage
of the faid A J, and againfl the peace and dignity of the common-
wealth'.
(In indi&ments for aflauU and battery, the court may rule
the profecutor to fecurity for cofts, and on failure, may difmifs
the indi&ment with colts. V. I. p. 113.')
ATTACHMENT.
UNDER this title I (hall only confider that fpecies of at-
tachment peculiar to the laws of this Aate, which is
granted by a fingle magiffrate againfl: abfeonding debtors.
This authority has long been exerdied by the magiflrates of
this commonwealth, and is now founded on Chap. 78. of the
Revifed Cods, p *23-—125.
/. Where tie dtli or demand exceeds fve dollars, or two hun*
ired pounds of tobacco.
This
44
A T T A C H M E N T.
(This attachment arid the fubfequent proceedings thereon are
founded onfeff, 6, 7, 8 £5 9. of the above recited law, vjhichfee.)
Bond to be entered into by the party for whom
the attachment is iflucd.
Know all men by thefe prefentSy that we of and of
are held and firmly bound to of in the fum of
lawful money of Virginia \ to which payment, well and truly to le
?nade, to the faid his heirSy executors, adminif rotors^ or
ajfigns, we bind ourfelveSy and each of usy our and each of our
heirsy executors, and adminiftratorSy jointly and feverallyy by thefe
prefents. Witnefs our hands and fealsy this day of in the
year &c.
The condition of the above obligation is fuchy that whereas the
above bound hath this day obtained from a jufiice of the
peace, for the county of an attachment againjl the ejlate of the
above named for the fum of returnable to the next coun-
ty courty if therefore the faid Jhall fatisfy and pay all cofs
which Jhall be awarded to the faid in cafe the faid Jhall be
cajl in the faid fuity and alfo all damages which Jhall be recovered
againjl the faid for his fuing out of the faid attachmenty then
this obligation to be voidy elfe to re?na'tn in force.
Sealed and delivered beforey
This bond muft be returned by the juftice to the fame court
to which the attachment is returnable, or the attachment fhall
be declared void, and be difmifled, as is alfo the cafe where no
bond is taken.
Warrant of Attachment.—On fed:. 6.
To the fheriff of county
to wit,
Whereas of hath this day complained before me
one of the commonwealth*s jufiices of the peace for the faid county,
that of is indebted to him in the fum of current
moneyy and that the faid hath privately removed himfelf out of
this county y or fo abjconds or cmceals h'mjelfy that the ordinary pro-
cefs of law cannot be ferved upon him: thefe are thereforey in the
name of the commonwealth to require you to attach the ejlate of the
faid or Jo much thereof as Jhall be of value jujficient tojatisfy
the faid debt and cofs, and fuch efiate fo attached in your hands to
Jecurey or fo to provide that the fame may be liable to farther pro-
ceedings thereupon to be bad at the next court to be held.for this
county; and that you then and there make returny how you have
'xccuted this warrant. Given under my handy this day of
&c. This
ATTACHMENT.
45
This precept is to be executed by the fhcriff or his under fhe-
riff, to whom directed, unlels he is a party interefted, and
thea by the coroner or ferjeant, who muft thereupon return
what eftate he has attached; or may take bond, with good fe-
curity, for the debtor's appearance at the court to which the at-
tachment is returnable, and for his performance of the order and
judgment of luch court therein.
Condition of the bond to the floe riff.
The condition of the above obligation is fuck, that whereas an
attachment from gentleman, a jujlice of tie peace for this
county, againft the eftate of the above bound at the Juit of
hath been levied on Sunday goods of the faid it Lieh have been
rejlored to him upon his giving this bond j if therefore the fa'ul
Jhall appear at the next court to he held fo>" this county, and anfwet
the faid attachment, and abide by and perform the order or judg-
ment of the court therein, then &c.
Slaves, goods, and chattels, belonging to the debtor, though
the fame be found in another county, may, in the fame manner,
be attached by a warrant from a juftice of the peace of the coun-
ty where fuch effate is found. For tho' the expreffiou of the
law is, that the property of the defendant may be attached
* wherever the ja?ne Jhall be found f yet it can by no coniiruc-
tion extend the jurifdidtion of a magiftrste beyond the limits of
his own county. The neceffity then of obtaining an attachment
in the county where the property is to be found for all fums of
this dignity, is fufficiently obvious. In the next caf , indeed,
there is no neceffity to get an attachment, except in the county
in which the debtor retides; but this power proceeds from the
exprefs letter of tne law, which authonfes the magiftrate to di-
red! the warrant, in cafes of this fort 4 to all foeriffs, ferjeants,
and conflablesf in the commonwealth.— This is commonly cal«
led a running attachment \ and being an exception from the
preceding cale fully proves the polition there advanced.
II, Where the debt doth not exceed twenty dollars,
current money, or one tboujundpounds of tobacco,
on fedt, 10.
4 Byrthebeforementionedadf, [V. Lp io.) it is dc-
* clartd to be lawful for any creditor, whole debt doth not exceed
* twenty dollars current money, or one thoufand pounds of to-
4 bacco, to make oath before any juftice of the county where
4 the debtor refides, how much is due to him, and that he has
grounds to fulpebt, and verily believes," fuch debtor intends to
46 ATTACHMENT.
remove his effe&s; whereupon the juftice may ifiue an attach*
meet againft the debtor's eftate, returnable to the next county
court, directed to all fherifFs, ferjeants and conlbbles, within
the commonwealth.
Warrant of Attachment.—on fed. 10.
To all Jl:eriffs} ferjeants andconfahles, within the Commonwealth
of Virginia.
to wit.
Tfleer eas of IVc bath this day complained, and made
oath lefore me one of the commonwealt j's j if? ices of the peats
for the county of that is jufily indelted to him in (by
obligation, account he. as the cafe may be) and that theJaii
has grounds to fufpeel, and verily hcheves, the fad in-
imds to remove his etfe as: th.je are therefore, in the name of the
commonwealth, to wi 11 and require you, and tvery of you, within
your refpctlive counties^ corporations andp red nets, to attach fa much
of tie efate of the faid (if to be found therein) as will Is
f'fpeici.t to fatisfy the Jaiddeht andcofts, and the fame in) our hands
tjfecure, rr h to provide that the fame nny be liable upon farther
proceeding - r icrgoi, to be had at the next court to be held fof fe
J aid county f to u hich you are to moke return of your pro-
ctcaings ein. Given under my hand, he.
The incrirF, feijeant, or conltabJe of any countyor corpora-
ton in the commonwealth may execute the above warrant,
v liich is to be returned to the court of the county from whence
fi 1 lined j whereupon fueh proceedings are to be had without a
petition as in other cafes of attachment—See V. I. p. 124. feet.
10.
III. Where the debt or demand is under five dollar
or ino hundred ~founds of tobacco —on led. 11.
Attachment: in tbi-> inftance are finally determinable before
a jullice of the peace. See V. I. p. 124 fdi. 11.
Ai the fame proceedings aie to be had in this cTe, as are di-
rrded upon attachments returral le lefore a court, the form tf
trie bo; I j readr given tn y be adopted, with this variation, in
tre co\d4 at clie.intd an ait of irent for returnable
4 Lforc me, orf<.:c other juftce tf the peace for the faid county cf
cSe.
Warrant rr Attachment —on fed. 11.
To any con,table, ct fwern fleer of the county cf
to wir. ..
JVoceas of <Vc. hath this day mad' ccnitlarit
btjme ,ne one cf the commonwealth's jufues f the peace's/ the
fid
ATTACHMENT.
47
fetid county that of tsfc. is indebted to him filings
Current money ; and thot tie jaid is removing himfof out of
the county privately, or conceals hi, nflf fo th it a warrant cannot
he ferved upon him. 1 therefore -command you to a'tuch the eftale
of the fa id or ft m ich thereof as jhall be of rJ .d ./ ° Juffeicnt to
Jatisfy the fit J debt, and c>jls, an i the fame in \o ir bunas to fe-
cure, fo as to be fable to further p "ocetdi i?s thereupon, to bt had
before me-, or fame aher jujl'ue if this county, to whom )J i ford
quake return hove you haze executed this warra,,t, Given under
my hand, this day of
The conftable, or other oUccr, is to ertepjn?, and make a
return upon this warrant agreeaol-i to the trutla of the cafe.
4 Where any attachment reiurn hie to the county court, or
4 befor<p a j rftice of peace, (hall be returned executed, a id the
4 goods or cfiefb attached fhu.Il not he r"plnvied5 as bv the i id
4 act is direfted, th p^intilF ihall have judgment for nis w.iolc
4 demand, and i?Le execuTm ther.upon, and all goods and ef-
4 feels a.tuch-d, arid not replevied, lhall be fold and dfpoled cf
4 N-AVivf Citifying the plaintiffs judgmc it, as goods taken by
* fori facias \ and all gar. ifhees in vvhofe hand': ' ttachments ard
1 returned executed, for all fums of money or tcbacc ) due from
4 them to the party ab (bonding, or in their poflefiion, alfo all
4 goods and thefts in their hand--, (hall be liable to iuch j ;dg-
4 mcnt and execution. V. I. p 124,
4 Upon proof being made b fore a magiflrite, that a debtor
4 is afturlly moving or abfcoiidi >g on Sunday, it fh.ill be Jaw-
4 ful to jfTae and f'rve an attachment agai ul fjch debtor, as is
4 direfleu on any otLcr day. /. p. 125.
Returns upon Warrants of attachment where no.
efteds.
Tree nithi 1 named hath no efaie in niy frecinf? wher-oj
} can make thefum within mer-t zoned-
Ccnfahle.
Where the attachment is levied.
By virtue of this war*ant, to me dire Hefty I have uti ihed
cf the goods and chattels of the ivitbin named u hick
I have ready, as by the ivarrant I am requirci.
Where ar debt is attached in the hands of pother
perlon.
By virtuey &c. I haVe attached the within mentioned fum of
Jhillingi and colls, cf the efoatc ot the ivithin named i<i
" ' i h
48
ATTACHMENT.
the hands of &c. as by the warrant J am requireand have
jummoned the faid to appear before cn the day of
nexty to declare-. what ejfehs he hath in his hands.
The defendant failing to appear hereupon, the plaintiff, upon
proof of his debt, (hall be entitled to a judgment} to be gianted
to him by the judice.
Judgment.
to wit,
. A B, againjl C D, in debt.
the attachment obtained by the plaintiff, againjl the effate cf
the faid defendant, being returned executed before me . one of
the commonwealth's juflices of the peace for the faid county, and
the faid defendant failing to appear, the plaintiff proved his dtbt
according to law; and it is thereupon con/idtred that the faid
recover againjl the faid /killings current money, and the
cofls of this fuity and the ccnffable is ordered- to fell the goods at-
tached according to law, to fatify this judgment.
The expences of fupporting live (tuck taken by attachment
{hall be fettled by the court before whom, the attachment is tri-
tdj—.'f the plaintiff obtains judgment, the expences are to be
taxed in the bill of colds, for which execution may iffue} but if
the plaintiff is cad, the expences (hall aUo be taxed.in the bill
of cods, againlb him, for woich the defendant may take out
execution with the other cods. See V. I. p. 125.
The goods mull be fold for ready money, or tobacco, ac-
cording to the demand}- and, .after (ale, the folio.ving return is
to be made.-
By virtue of the within order, I have caufed to be made the
within mentionedfum of ■ of the goods and■ chattels of tie
within named _ which faid fum cf before the jujlice with •
in mentioned, at the day zvithin contained, 1 have ready, as required,
. Corjlable.
The money and tobacco fo levied mud be by the officer, im-
mediately paid to the plaintiff, or his attorney..
• 1 he overplus, if any arifes by the (ale, after deduction of
charges, mull; be paid to the owner of the goods, or his attor-
ney, if to.be found} otherwde to remain in the officers hands,
till claimed, - . . . ■ .
Where the attachment is returned executed in the hands of
another perfen, the party mud be furnmoned -to appear before a
judice of the peace, .where he is to declare, .upon oath, how
much of the defendant's edate is in his hands } and if it appear
that he hath Efficient, the plaintilF may have judgment for his
whole debt, or fo fuch as appears to be in the hands of the p >rty
(enjmoned, ag.bnft fuch partyc If .
ATTACHMENT.
49
If the party does not appear upon the return of the fummon
executed, and declare, as aforefaid, that he hath not any of the
defendant's eftate in his hands i the plaintiff may have judg-
nient.
The Judgment.
to wit.
A B? again ft CD, in debt.
The attachment obtained by the fnid plaintiff again/1 the eftate
of the faid defendant, being returned, executed in the hands of
and it appearing to me that there is now in the hands of the
faid of the eftate of the faid fufftcient to fatisfy the plain-
tiff's debt and cojis, and the j a id plaintiff having before mey prov«
ed his debt after faid: it is confidcred that the faid recover
again/1 the faid fhi Lings current money, and the cofts of
this fuit.
Cods for cents.
Upon this judgment an execution may iflue againftthe goods
of the gatnifnee, in the fame manner as upon a judgmem in
the ordinary cafes for debt, cognizable before a fing e m igu-*
trate, the form of i'uch execution may be feen under title Vv ar-
rants.
Prut if the defendant appears, and upon trial, the plaintiff is
cad, the defendant's goods are to be reltored and he is entitled
' so a judgment for his cofts.
Tudgmert.
to wit.
o A B, againft C D, in deli.
The attachment obtained by the plaintiff againft the defendant
being retured executed, and the faid defendant, as veeil as the foid
plaintiff this day - perfnally appearing before me, it is c: -,'tkicd
thaL the /aid plaintiff take nothing by his plea\ and that t>>, faid
defendant's eftate at the fuit of the plaintiff attached, be re/toted
to him; and that the faid plaint iff do pay the faid defendant his
coftsy by him about his defence expended.
1 The cofts to be here taxed.
For attachments againft tenants removing from the premifest
before the expiration of their term, fee title Rents.
ATTAINDER.
THIS is derived from the latin word attin£lus> tainted,
ftained, or corrupted,
in cafes of treafon or felony, a man is faid to be conviSled be-
fore judgment is pronounced againft him, as if a man be con-
vicied
5°
A T T A I N D E R.
vidled by verJift, r>r hi? own confeffion; but he is faid to be
attainted, only aher judgment pcffes on fuch verdict or confefii-.
on. i In/?. 390.
The penalties confequent on fuch attainder, by the common
law, were, that neither his children nor r'lations could derive
any inheritance thro' him. nor could his wife claim her dower of
his eftate. To remedy which inconvenience, as well as to fave
the neceility of p.uTing a fpecial act cf the legiftature (which
alone could relieve from the forfeiture) for every cafe which
might occur, it is enafled by F. I. p. 113 : Tnat, t When-
4 foever any perfon fhull happ n to be attainted, convicled, or
4 outlawed of any trcafon, mifprifion of feafon, murder or fe-
4 lony whatffc»er, there fhall in no cafe be a forfeiture to the
4 commonwealth of dower, or of lands, flaves, or perfonal ef«
4 tate, but the fame jfhail defcend and pafs in like manner as is
4 by law direitid in caie of perfons dying intefcate; nor fhall
4 any attainder work a corruption of blood.'
' Saving to ail perfons &c (other' than the offender*) theif
4 rights fee. to the faid eilate.'
A W A R D.
A LTHO' the fuljedf of this title does rot {Inertly fall under
the confideration of a magiftrate as a conjervator of the peace,
yet as cafes arifing under it, may frequently be brought befoie him
in hi-S judicial capacity, and as ahnoit every perf>n, from a puiii-
bility of being called on to adh as an arbitratoi, may be in ten el Led
in a knowledge of it; I (hall make no apology for treating <f
the fcveral parts of the dodtrine, with fome comldcrable degree
of minuteneff: Under which I flmll ihew,
I. TVhct an cveard is.
II. IVho may, or may not he arbitrators.
III. Who may or may net fulmit to arbitration.
IK H lot things may be Jubmiticd> and the extent of fuel
juhnvffion.
V. 7 he feveral kind of fulmijfwn.
VI. IP'hen a jubmifjion may be revoked.
I'll, (/f the award; when it/hall be good and when not.
Fill. Of the umpire.
IX. I Id. at /hall be a breach of the award.
X. Of the remedy fr ?.cn-perj.rmancc.
XI. How an av.ard may be relieved again,?.
h
A W A R D.
5i
I, What an award is.
An award is the judgment, or decree of peifons elected by
the parties, to arbitrate and determine the matters in controver-
fy, fubmittei to them, s Com, Dig. 534.
II, Who may or may not be arbitrators.
An arbitrator being a judge elc&ed by the party, every one
capable of making an arbitrament, may be an arbitrator. I Com,
-Dig- 534.
But a perfon of nort fane memory; a perfbn, who by nature
or accident, has not dilcret on; an infant; a feme covert', a man
attainted of treafon or felony; or a peifon who is not indifferent
with refpedl to the decifion of the cade, cannot be an arbitra-
tor, and in the laif mentioned cafe an award made by fuch an
arbitrator would be fet afide in a court of equity. 1 Com. Dig,
534-
III, Who may or may not fubmit to arbitration,
Every one capable of making a difpofition, or a releafe of his
right, may make a fnbmiilion to an award 1 Com. Dig. 537.
But an infant cannot fubmit to arbitrament, for his fubmifli-
on is void, Ibid.
Yet if an infant and a man of full age join in a fubmifnon,
it k good; for tho' the infant cannot be obliged to ftand to it,'
yet his fubmiffion is only voidable, and he may agree or difagree
to the award at his full age. Ibid.
And a father may be obliged, th~t he and his fon an infant
fhall ftand to an award: and fuch obligation binds the father.
Ibid.
And therefore, if the father pleads to the obligation, that his
fon was within age, it is 110 b .r. 3 Lei). 17.
So a father may fubmit for him and his fon, and it is good for
the fon, 1 Lev. 139.
So afeme cove) t, cannot fubmit heifdf to ail award. I Com,
537-
But the hufband may fubmit for him and his wife. Stile. 351.
So, if the hufband only fubmit, it is fufEcient for a debt due
from the wife a> executrix or adminiftratrix; for the hufband is
chargeable with it by the intermarriage. 1 Com. Dig. 537.
So, if there be a lubmiilion by the hufband only tor a leafe
for years, which his wife has as executrix; and thus binds the
wife after his death. Ibid.
Or^J&s^ dpbrtmon a bend made to his wife before cover-
tq
So,
52
award.
So, if there be a con'.roverfy between A, of the one part,
and B 5c C, of the other; and li lubmit for himfelf and C, and
there be an award, that B Jhall pay &c. this is good, tho' C,
be a ftranger. 1 Com, Dig. 538,
So, if B fubmit for himfelf, and his partner; and the award is
thar B, Jhall pay. 2 Mod. 228.
So, it B fubmit, as the attorney of C, B fhall be bound. 1
Salk. 70.
IF. What things may be fubmit ted, and the ex-
tent ojJuch JubmiJjion.
All perfonal actions and things of an uncertain nature may be
determined by arbitration 1 Com. Dig. 538.
So, a debt on a fpecialty or record, tho' certain, maybe fub-
mitted amongft other things. I Lev. 292. I Bac. Ahr. Abitra-
inent.
But freehold, or inheritance of lands, cannot be determined
by arbitrament. 1 RoL 242. /. 10.
And therefore there cannot be a partition by an award j for
freehold does not pafs without livery. 1 RoL 242. /. *6.
So, the intereft of an eftate for years, cannot be transferred
by an award ; for it is a chattel real, 1 Rol. 242. I. 20.—Con-
tra Cro. Eliz, 223 —See I Bac. nbr. Arbitrament.
Nor, a thing certain; as a debt upon bond, by itfelf. 1 Lev,
292. Other wife if the fubmiflion be by bond, for then the
award would be a good bar. 1 Bac. Abr. Arb.
Or, a debt upon record; as arrears of an account found be-
fore auditors, 1 Com. Dig. 538.
But an award may be of the arrearages of a rent refcrved
upon a leafe for years. 1 Rol. 242. L 25.
So, it a man be bound to ftand to an award, and the arbitra-
tors make an award, that land Jhall be conveyed; if the party re-
fufes the conveyance, he forfeits his obligation I R.ol. 244. /. 5.
So, if the condition of an obligation is, to ftand to an award,
concerning lands; and the arbitrator awards the land to one,
and that the other Jhall releafe to him : if fee doth not reieafe, the
obligation is forfeited. 1 bac. Abr. Arbitrameyit
But if the arbitrator awards the land to one, it feems theob-
ligation is not forfeited, tho' the other do not convey to him;
for the arbitrator hath not awarded any a<St to be done by the
party, as in the above cafe, and the award itfelf cannot transfer
the right' for the awarding the land to one cannot be expounded
that the other fhall infeoff him, -Ibid.
And altho' there be no bond, yet if the arbitrator do award
that the one fhali infeoff the other; it feems that an adtionon
the
AWARD.
53
the cafe may be maintained for not doing it: See I Bat, Air*
Arbitrament.
" If an award be, that one J}) all -pay Jo much in fatisfaAion of a
fpeciady; tho' the fpecialty is not thtreby difchargtd, yet if he
commence an action on the fpecialty aftei wards, he' forfeits bis
obligation, i Com. Dig. 538.
Crmtnal matteis, as treafon«, murders, felonies, and other
offences indictable at the fuit of the commonwealth, cannot be
fubmitted to arbitrament ; for it is for the good of the common-
wealth that fuch offenders be made known and punifhed: and
the commonwealth in fuch cafes is a partyv tor whom the other
parties canrot undertake. And altho' the iubmiffion be by
bend, yet the obligation is void; and the parties may be pu-
nifhed tor entering into fuch bond. I Bac, Air. Arbitrament.
But if the party injured proceeds by way of action, as he may
in afhuirs and batteries, libels and the like; the damages he
futtuimd or cxpedts to recover, may be fubmitted .to^arbitration:
for in tuch cafes the action is for himfelf and not for the com-
monweulth. CompUat .Arbitrator. 2o.
Alio matrimonial eaufes, or any thing concerning the con*
tradf or diflblution of marriages, cannot be fubmitted to arbi-
trament. 1 Rol, 252^ '
But the damages a perfon fuftained by a promife of marriage,
or any thing relating to a marii.ige portion, may be fubmitted.
10 td 4. 2.
If there be a fubmiffion of all anions and complaints \ caufes of
a£tions are fubmitted. I Rol. 245.
If, of actions perfona!, and funs and quarrels: adlions real are
fubmitted: I. Ba?/ 246.
If there be a fubmiffion of all matters between them two; an
adtion by one -of them and his wife agaiaff the other, is not fub-
mitted i Rol. 246.
If, of all demands 1 title to land is fubmitted. Kel. 99-.
If of all debts; fpecialties and judgments for them may be re=»
leafed, 2 Sand. 190.
If, of all differences; all demands may be releafed. I Com. Dig. 539.
•1 ut by a fubmiffion of all alliens, cauffs of action are not
fubmitted. 1 Rol. 2 ^.5
By a fubmiffion of a cl ions perfona/, fuiis and complaints, adlions,
real are not fubmit ed; f>>rpe/fonalapphes tothe^vhole. 1 Rol. 246.
By a fubmiffion by A tc B, cf the one parr, and C of the
other, of all matters between them, an action by A alone againff:
C, is fubmitted; for it ihall be takendiffributively. 1 Rol 246.
By a fubmiffion of A, of all matters, a debt due from the
wife of A, as executrix is fubrnhted. 2 Cro. 447.
H. If
54
AWARD.
If all matters in difference are fubmitted, it extends to a de*
mand as Executor. Sir. 1144.
If there be a fubmiffion generally, upon the trial of a parti*
6ular adtion, yet the arbitrators may determine all other matters
between the parties* 1 Com. Dig. 537.
See 3 Diner's Abridgment 48—52.
V. The fever al kinds ok Jubmiflion.
1. A fubmiffion, to arbitrament may be by parol, or words;
and an afumpfit, lies for non-performance. 1 Com. Dig. 535.
But as the fubmiffion may be revoked at any time before the
award made, and becaufe it is liable to introduce too much per-
jury, the judges will rarely enforce the peiformace of an award
made on fuch fubmiffion. Camp. Arb. 21.
2. A fubmiffion may alfo be by an indenture, with cove-
nants, to Band to the award of fuch perfons. 2 Mod. 73. But
this method is feldom ufed; for tho' it contains the fame cer-
tainty with a bond, yet the method of fuing on a covenant is
different and more difficult than on a bond. Comp. Arb. 7. 46.
3. Or a fubmiffion may be by bond, with a condition to
Band to the award of the arbitrators appointed between the par-
ties.—In this cafe each party muft give to the other a bond;
which bond, and the condition, mull contain exadtly the fame
words, only changing the names of the parties. And the pe-
nalty of the bond fhould be at leaft the value of the thing fub-
mitted; fo that the party may rather abide by the award, than
forfeit his obligation. Comp. Arb. 46.
Or, by feveral obligations; for if A give an obligation to B, ,
and C another, the fubmiffion appears upon all. Cro. Car. 433.
So, if a bond of fubmiffion be made to A & B, and it appears
that A, was a truftee for B, and the condition mentions the
arbitrators to be elected only on the part of A, yet here is a fub-
mifficn by B, alfo. Lut. 576.
So, there may be a fubmiffion to Band to the award of four,
f that an aw aid be made by all, or three of them; and an award
by three will be good. 2 Cro. 278. 1 Com. Dig. 535.
4. A fubmiffion may alfo be by rule of court; and is made in
purfuance of the ait of the General Affiembly of Virginia; flrft
palled in the year 1789. This practice however prevailed
much earlier, in our court?, and was chiefly l&gulated by the
3d't of Parliament of England of 9 & 10, W. in. c. 15. tho'
that ftatute was not ftribtly obligatory on us. Our adt is now
cclledted in the Revifed Code, page 54; and is as follows, * It
* ill-ill and may be lawful for all merchants, and traders, and
e e thers defiring to cud any controverly, fuit or quarrel, for
which
AWARD.
55
4 which there is no other remedy but by perfonal a£l!on or fuit
* in equity, by arbitration to agree, that their fubmifflon of the
* fuit to the award or umpirage of any perfon, or periods, fhouid
4 be made a rule of any court Of record, which the parties lhall
4 chufe, and toinfert fuch their agreement in their fubmillion, or
4 the conditiofi of the bond or prcmife, whereby they oblige
4 themfelv^e refpedlively to fubmit to the award or umpirage of
4 any perfon* or perfons; which agreement being fo made and
4 infer ted in their fubmiffion orpromife, or condition of their re-
4 fpeftive bonds, (hall or may upon producing an affidavit thereof
4 made by the witneffes thereunto, or any one of them in the
4 court, of which the (fame is agreed to be made a rule, and
4 readingiand filing the faid affidavit in court, be entered in the
♦^proceedings of fuch court, and a rule (hall be made thereupon
4 by the faid court, that the parties (hall fubmit to and finally be
4 concluded by the arbitration or umpirage, which lhall be made
4 concerning them, by the arbitrators or uihplre purfuant to
4 fuch'lubmiffion.'
4 And the award made in purfuance cf fuch fubmiffion tnay
4 be entered up as the judgment or decree of the court, and the ^
♦•fame execution or ptocefs may iflue thereupon, as on other
4 judgments or decrees, and the court fiiall not Invalidate fuch
4 award,. arbitrament, or umpirage, unlefs it be made appear to
4 fuch'court, that fuch award arbitrament or umpirage was pro-
4 cured by. corruption or other undue means, or that there was
4 evident partiality or mifbehaviour in the arbitrators, or ura-
4 pires, or any of them. And any award, arbitrament or umpi-
4 rage procured by corruption or other undue means,' or where
4 there (hall have been fuch evident partiality of mifbehaviour as
4 aforefaid ffiall be .deemed and judged void and of none efffidl,
4 and accordingly fet afide- by the court in which the fubmiffion
4 fhall be made, fo as complaint of fuch corruption or'undue
4 means or evident partiality or milbehiviour as aforefaid be
4 made before the end of the fecond court of quarter feffions in
4 the caf; of a county court, or at the end of the fecond term of
4 any other court, next after fuch award, arbitrament, or urn-
4 pirage be made and returned to fuch court.'
4 Not to afFeift the power of courts of equity over awards, &c '
And this is allowed to be the moft expeditious way; and the
method is, to get a counfel to move in any of the courts to get
it made a rule, which in fuch cafe is never denied; and then
the party is liable to the fame penalties that he woffid be for ffif-
obeying .any other rule of. court. Comp, Arb, 6 47,
J. Sometimes the fubmiffion is both by bond and rule of
court, by adding the parties confent at the bottom of the condi-
on
$6 A W A R D.
On of the bond j and this is ftill the beft way, for then the party
may proceed which wa\ he pleafes: and it is (aid, that he may
rocced both wajsj tha is, both by an action on the bond, and
y way of attachment for th^eoifterript. Salk. 73.
As the courts will f ldom fe£ af de awards except for corrup-
tion and partiality in the arbitiatorsj and the meftiod by which
it i^efftkfted being ufjally by bill in equity in which' the arbi-
trators are made parties ; to pi event this inconvenience, there
is fomttimes inferted in the condition of ihe bond, a reftri&ion
that no bill in equity Jhall be fileT again)} the arbitrators. If,
however, a b 11 Ihould be exhibited againft the arbitrators, in
, any fuch cale, the cou-rt, upon motion will ord.r their names
to be ftrucit out 2 Atkyns 395.
The court will compel a-witnefs to a fubmiffion to arbitrar
ton, to make affidavit of the execution, in order tomaxe a rule
of court* Str. 1. Barnes 58.
A fubmiffion may be made a rule of court, oh motion of 011c
pany, and producing the bond executed by the other, Burnet
55.
* - It may be made a rule of court, tho' no part of the condition,
only a memorandum iigned before execution of the bond. Barnts
55« • *.
And if the fubmiffion be by rule of court, the court will oh-
lige performance, witheutanakirig tlie award alio .a rule of court.
I Salk. 71. »
A confent in the fubmiffion bond, to make the award a rule
of court, will not warrant the court's interpofing; the fubmifi.n
maft be made a rule of court. Str. 1178
To bring a fubmiffion wkhin thejlatute, it mull be confirm-
ed by rule of court/>nVto making the award. 3 P. Wms 361.
If a hend fays, and if he confent to have the Jubmiffon a rule of
court* it is Sufficient, I Sal. 72.
If the party does not obey an award by a rule of court, an
attachment Ihall be granted againft. him, if he does not ftiew
taufe to the contrary upon notice, upon which he (hall be im-
prifoned for his contempt. 1 Sid. 452. 1 balk. 83,
And he muft obey it, tho' it be defective in ether relpe&s j
tinlefs it be made by practice, of corruption, or be irregular. 1
^.*71.73.83. . . _ -
So, a parol award may beinfcrced by attachment. Barnes 54.
It haffi been hclden 011 the ftatute of 9 & i«0, IV. ill c. 15.
that if the fubmiffion be by obligation, the award rruit be com-
plained againft before the end of the r ext term, but not fuch
awards a.> are made in purfuanceof a rule of nijt prius; and that
Slothing is a ground within that ftatute to let aiide an award*
but
AWARD. 57
but manifeft corruption in the aibitrators. Stra. 301-—Yet the
court in this laft cafe, tho' they will not let allele the award,
will refufe any procefs to compel performance, if the award be
irregular &c. Andr. 297.
Yet it is faid that an award upon a fubmiliion made a rule of
coutt purfuant to the above ftatute, may be avoided for other
defeds as well as corruption; otherwife judgment will be one
way when given upon a bond, and another way when given
upon a rule of court. 1 Com. Dig. 537. 4
■ If a reference be agreed, a Hay of proceedings {hall be con-
fcquent. I Mod. 24. »
And if there be an adion upon a bond for non-performance; ft
will be a good breach, that kept occe.Ld to execution. 1 Com. Dig 537,
So, if one ferve a f.bpana upon the other after fubmiliion by
rule, it will be a breach. 1 Scdk. 73!
Butjnon-pefformancedunngcouceftisnocontempf, I Salk. 73.
So, if any part of the award be impoHible, for the non perfor-
mance of fo much, rio attachment goes; 1 Salk. 83.
Fl. IVhen*a fubmijjim may he revoked.
In which way foever the fubmiliion is made, the fame may
neverthelefs be revoked, tho' made irrevocable by the ftrong* It
words ; for a man cannot by his own ad, make fuch auth *riry
or power not couhtcrmandable, which t>y the law, and its ovvn
nature is countermandable, 8. Co. 82.
If two fubmit on one parr, and one on the other; one of thole
two may revoke without the other. 1 Com. Dig. 539-
But if the fubmiilion-be by bond, if the party revokes, he
forfeits his obligation, for that he hath broken the words of the
condition, which are, that he lhall Hand and abide tee
award. 8. Co. 82.
And if the fubmiliion be made a rule of court, purlin- M
the Hatute; if either of the parties revokes, the court will 2
an attachment. Comp. Arb. 82.
If the fubmiliion was by bond, the revocation m» J > e in
writing. 8 Co. 82.
But if a fubmiliion be revoked; it is of no av 1 .11 notice of
the revocation to the arbitrators, 8 Co 82.
If the fubmiliion be by word, the party may revoke at j ca-
fure, and he forfeits nothing; but he mull likewife ^-we-notice
of the revocation, tho' it need not be in writing: and the notice
mulb be to the arbitrators themfelves. 8 Co. 82.
If there be a fubmiliion by a feme Jo Is, who marries before
an award made, it will be a revocation. 1 Com, Dig. 539
So, if the woman and B, fubmit On one part, and the woman
marries, it will be a revocation as to B, alfo -1 Rol. 331. I. 45.
VII.
J8
AWARD.
VII Of the award-, when it fall be good and
when not.
1. An award ought to be purfuant to the fubmifflor : and
therefore if it be made of a thing merely out of the fubm llion it
is void, i Rol 242.
Af, if it be awarded, that a Prang' r {hall do fuch an a£b; it
is void f'-r fo much: as that aJlra.zger fallgive a bona. 1 Roll
243. 10. Co. 131.»
So, an award tc pay upon the land., or within the houfe cf a fran>
ger. 1 Re I. 247.
Other wfe, if it be at the houfe; for that does not make him
Z trefpaffer. 1 RoL 247. See l-Com. Dig, 540.—3 Fin. Abr,
52.—Cro. Car. 226. '
2. An-award of a thing after the time of the fubmililon is
void: as, if it be of rent which foall be due at Michaelmas next,
I RoL 243.
So, a rcleafe of all actions till the day of the award made, 1
RoL 242. 4
So, an award, that one fhall pay for writing the awards is
void for fo much> for this goes to a thing happening after the
fubaiiflion. 1 RoL 254:—2 Cro. 578.. #
But now it is decided that the powfcr of awarding coffs, is
neceffarily confequentto the authority confered on the arbitra-
tors of determining the caufe. 2 Term, Rep. 645.—See I Com,
Dig, 541. ...
3. An award of a thing not fubmittedis void : as, if the Tub-
million be cf ad matters depending, and the award be of all mat-
ters generally. iJ?oL 243.
If the fubmiiiion be, of all matters except an obligation j and
the award be of all demands. 1 RoL 26 r.
But if 011 a reference of all matters in difference between two
partners, the award be that the partnerihip be diffoived, this is
within the fubmililon and therefore good.' 1 Blacks Rep. 475.
So, if the reference be of all matters in difference, in this
caufe, and general rek-afes be awarded, it is good as to matters
refcred, tho' void as to the refidue. 2 Blacks Rep. 1117.
A fubmiiiion of all matters in difference 4 in this caufe be-
1 tween the parties,' is only a reference of the caufe in queftion;
but a fubmiiiion of all matters in difference, ' between the par-
4 ties in this caufe,' is a general fubmiffion. 2 Term. Rep, 647.
See I Com. Dig. 541.
4. If the fubmufion'be, fo that the award be made cj the pre-
niijes, the award {hall be of all matters in controverfy, of which
they have knowledge j otherwile it will be void. I RoL 256. R
27.—8. Co. 98.
AWARD.
59
The like law, if a fubmiffion be, gf all matters fo that the fame
award be made fuck a day, omitting, that it be made of the pre-
mtfes'y for the words, the fame award fAc. are tantamount. Cro,
Eliz. 838.
If there be a fubmiffion to the award of A and B, fo that &c.
and if they do not to an umpire, the claufe fo that extends to the
umpirage. 1. Lev, 140.
And therefore if there be a fubmiffion of fuch and fucb things,
(pecially named, fo that &c. an award not made of all is void ;
for they ought to take notice of them being fpecially named in
the fubmiffion, withe ut other information. 1 Re I. 256.
See 3. Fin, Abr. 70—76.
5. If there be a fubmiffion of all controvcrfief, between A
and B, of the one party and C of the other, fo thatkdc. an award
of all between A & C, omitting B, is void. 1 Rol. 26 j.
But if the fubmiffion be general without a fo that &c. the
award may be of part of the matters in difference. 1 Rol. 256.
tro, Eliz. 838.—8 Co: 98.
See 1 Com. Dig. 542.
6. But, if a thing awarded to be done be out of the fubmiffi-
on, it is immaterial, if the matters for which the award is made
are within it; as if the award be, that one of them Jhall give an
obligation, horfe &c. to the othery in fatisfadhon of all matters
Jubmitted» I Rol. 245.
See I Corn. Dig. 543.
7. So, an award of a thing to be done to a ftranger is good,
where the ftranger is only an inflrument: ' as, to pay money to a
Jirangerfor theufe or beneft of the parties. 1 Rol. 247.—I Sulk.
74.
So, if a fubmiffion be by ieveral who are feverally bound, an
award, that A and B payt is good ; for upon the whole of the
cafe It appears, that B, tho' not named ii^ the bond given by
A, is not a ftranger. Cro. Car. 433.
But an award does not bind a ftranger to do any acf, as a re-
leafe, confirmation &c. Mo. 3.
See 1 Com. Dig. 543—544.
8. So. if an award exceeds and goes to matters out of the
fubmiffion, it is good for fo much as is within the fubmiffion :
As, if an award be, that A and a Jlranger pay c\c. ic is good
againft A and he is bound to pay, tho' it is void as to a ftran-
ger. 1 Rol. 244.
Or, that A be bound with fureties $£C. (hall be good as to A®
2 Lev. 6. Show. 82. Carth. 159.
9. And there fhall not be a ftrair.ed ecnftrudlion to make if
to be out of the fiibnn'ffion : And therefore if there be a fob-
million
6o
AWARD.
million of all afticns perfonal, fo that l?c. and the award be, if
and concerning the premijcs, that one fall pay fo much at a fu-
ture day, and then fall rr ake a releaje cf all eft ions perfnah, the
releafe (hall be only of all actions* till the fubmiffion.
So, .an award of general releafe s, extends only to matters at
the time of the fubmiffion 3 Mod. 264—See 1 Com. Dig. 545.
ic. And if an award does not appear not to be purfuant to
the fubmiffion, it fhall not be intended: And therefoie if an
award of the premifes be of all matters till the time of the aivard,
it is gocd j unlets it be aveied that matters arofe between them
after the fubmiffion, and before the time of the award. I Rol.
244.
So, a fubmiffion of all matters, fo that the award be made of
the premijts idc} an award of the premifes, of a Tingle matter is
good j for others lhall not be intended unlcfs they are fhewn. 8
Co. 98—2 Cro. 285.—§ee I Com. Dig. 545.
11. So, an award ought to be certain: And therefore, if
the award be, that one Jhall make an obligation for the enjoyment
of lauds, without faying in what fum it will be void for the un-
certainty. 5 Co. 77—2 Cro. 314.
Eut an award, that one fall pay the cofs of a fuit,' generally
is good. 2 Vent 24-3—Carth. 157.—See 1 Com. Dig. 545—
547-
12. So, an award ought to be poffible and lawful: and there-
fore, if it be impoffible, it fhall be-void : as an award to pay at
a day paft. 1 RoL 244.
If an award be that one of the parties kill, Ileal, forge a deed,
or the like, it is void. 1 In ft. 206.
Alfo it is held that where a thing is awarded to be done,
which afterwards becomes impoffible by the adt of Ood, the
party is txcufed; as if an award be, to deliver a horfe before fuch
a day, and he dies before that day. 21 Ed. 4. 70.
Eut if it becomes i£np~>ffiblc by the adt of the party himfelf,
or of a fhanger, he fhall be bound to perform it. 2 Aied. 27.
28.
13. So, an award ought to be reafonable : and therefore, if
the award be that one Jhall releafe his land to the other- in fatisfac-
tisn of a irefpajs, it is vo'd. 1 Ro'. 249.—See I Com. Dig. 547.
14. So, an a ward ought to be mutual: and therefore if it be
of one part only and nothing of the ctber it fhall be void. 1 Rcl.
253.—See 1 Com. Dig. 547—5^9.
15. So, an award ought to be final: and therefore an award,
to py f° match ana if ih ere he pre of zvithin a month cf more due to
pay that a If-, is void. 1 Re/. 251,
Or,
AWARD.
6i
Or, to moke fubmiffion to B, in fuch manner and place as B
jfballji)", f-r B, will determine for him(elf. I Salk 7,
Or, that one /hall give a bond, to the other, with fuch fnreties
aside )hall approve, and that they Jloall make mutual re.eajes; for
if he will not approve of the fecurities, nothing is done, 3 Mod*
272.
But an award, to give a bondfor payment is good. 1 Rol. 249,5
See 1 Com Dig, 550.
16. So, an award mull be intire; and therefore if it be made
part at one day and part at another^ tho' all be made before the
time limited for it, it (hall be void. 1 Rol. 250.
But the- arbitrate s may aflemble and fettle the matters at fe-
yeral days, but their award upon the whole muft be indie, i
Rol 250.
17. So, an award ought to give a benefit or fatisfa&ion for
the thing iubmitted. And therefore if an award orders nothing
to be paid or done it (hall be void. I Rol. 251.
As^ if an award be that one Jhall go to Roine\ for this is no
advantage to the other. I Rol. 252.
But an award that all differences do ceafe, is goody for this is a
mutual advantage. Mod. Cas. 34 35.
18. If an award be void for all that is to be done on one part
it is void for the whole. 1 Rol. 2584
So, jf it he unreafonable, or defedti've. 2 Cro, 353.
19. But an award may be void for part and good for the
refidue, 2 IVhs. 268. 293.
And therefore, if an award be of matters out of the fubmifii-
on, it is void only forthofe vide ante page. 59.
So, an award unreafonable, or impoilibie in part (hall be good
for the refidue. 1 Rol. 259,
Yet if by the nullity of the award in any part, the one fhall
not have all the advantage intended him as a recompence for
th^t which he does to the other, it fhall be void for the wholej
tho' it would be mutual, notwithstanding the null part were re-
ye&ed. \ Com Dig. 551.
As, an award that A pay id and B, his ivife and for., con-
1ley land to hiniy is void lor the whole j for tho' by the convey^
ance ol B, the award would be mutual, yet he has not all the
benefit intended for him, for perhaps the eftate was in his wife
and fon. 1 Roi. 259.
20. A parol award fhall be void, which awards money to bs
paid by o ie and a releafe by the other \ fur there is no remedy
for the releafe, where the award was by paid. 1 Sid, 160. for
a parol award gives no remedy for a collateral thing. 1 Lev. 113,
But
I,
6z AWARD.
Put as award by parol may be good; ,
Tho' not the eXpiefs words, but the efFeCt and fubftance of
them oiuy aie mentioned. Carth. 157.
Tho* the fudmiffion fays, fo thai it be made and ready to be
dedvered &c. for when it is made it is ready to be delivered.
X Sal. 75,
See on the fitljefi of awards^ I 'Com. Dig.. 540—552:
Alfo 3 Vint As Abridgment, 4,8—92.
It is now determined that in the conftruCtion of awards, grea-
ter latitude, and lefs ftriCtnefs fhould be oblerved than hereto-
fore; as in the following cafe, which was an award made by a
cobler, on a fubmifiion of all difputes. ' Whereas there has
* been a fuit at law between the parties, that has run to a great
4 Sixpence on both fides; and it being left to me to make an end
4 r t it: I determine that they fhall each of them pay their own
4 charges at law; and that the defendant pay the plaintiff 5s.
1 for his making the firft breach in the law.' And the award
Was held Cj be fufficiently certain and final. Burrow, 274.
Hi ivktns v. Cole lough.
And in th* cafe of Lucas and IVilfon. tSurroiu 701, lord
Mansfield Lid, the court will not enter at all into the merits of"
the matter rtfereu to arbitration, but only take into confidera-
tion fuch legal objections as appear upon the face of the award\
and fuch dljsfiiom as go to the mijhehaviour of the arbitrators.
Nearly the fame obfervations were made by lord Harduickey
in the cafe of Httenfon v. Peat, in the chanceryi See 3 Atkyns
5/9—644.
It mi^it however be obferved that there are a variety of in-
fiances; in tthich courts of equity have given relief, when it
has b< p,i ref i( d in courts of law, either from a -want of jurif-
diCtXn, as wl ere a fpecific performance is to be decreed; or
vi here the aetiui is brought on the arbitration bond, or the award
itfeif, in which tail cafes it is thought that no relkf can be had
in a court of Jaw, except where legal objections appear on the
face of the award, or the arbitrators have-been guilty cf corrup-
tion.-*-£*<? 2 Vefy 315*
Fill. Of the Umpire.
If th"re be a fubmiifion to arbitrament, it may be, that ij
tie arbitrators do net agree, the parties jhallJlandtothe umpirage
cf fuch an one. 1 Com. Dig. 55 2.
Or, if they do not agree for alt the matters they JhallJland to an
umpirage for the rejidue. 1 Rol. 262*
And
AWARD.
^3
And the words {hall be conftrued liberally; and therefore, a
fubmiffion to the award of A*and B and D, being an umj' c, is
tantamount, as that D,' fhall bean umpire/ I Rol. 262,
And if the umpire elected refiife, they may chufe another. 3
Lev. 263. 2. Vent. 114, 115. Cont. per Holt, unlefs the^elec-
t'ion of him who re'fules be conditional, if be does accept it. 1
Salk. 70.
If the fubmiffion be, fd that there he an award before the f.rft
of M. and if they do net agree to Jiand to an umpire\ they may
ele£t after the firft of M. 2 Mod. 169,
" But now it is decided that arbitrators having power to ete£fc
an umpire, may ele&one before they enter into art examination
of the matters refered to them at all 2. Tcpn Rep. 644,
See 1 Com. Dig. 552—553.
Arbitrators cannot proceed on a reference after tbev have
named an umpire; for then their authority Ceafrth, tho''the time
for making the award is not expired. Rep. of Pratt. C. B. Il6«
What Jhall be a breach oj the award.
If a man does not do all that the award requires of Mm, it
will be a breach: As if an award be, that A, enjoy an but fa,
paying rent to B, if he does not pay the rent it will be a breach,
Qro. Eliz.
But failure ill a matter collateral to the award is not a breach;
a? if an award be/ that A, make a leafe to B, rendering rent
if B, da not'pay the rent, it is no breach, for A,' has a remedy
for it by diftrefs. Mo. 3.—iSee j. Com. Dig. £53,
X. Of the remedy for, non performance.
1. If the fubmiffion be by bond, and tne ayrard be not per-,
fprmed, an a£tion of debt on the penalty lies, I Com. Dig. 554.
2. If by articles of agreement,' indenture &c'. under hand and
feal, an a£fiun of covenant, may be brought 2 Mod. 73.
3. Or, debt lies for a fum awarded. 2 Cro. 3$4.' 1 Leo. 72.
4. If the fubmiffion be by parol> ajjumpfit lies for non-perfor-
mance. 1 Rtl. 7. /. 15.
5. The remedy to compel performance of an award made in
pjurfuance of a rule of court, by way of attachment, is unuiual in
this State; for as the a& of Affembly authoiifes the party iiv
\yhofe favour the award is made to iffue any kind of execution
cjr. procefs to carry it into effe£b, it is generally more expedient
to purfue thofe meafures, than to iffiue an attachment.
' Wi%
AWARD.
IVith refpeft to the pleadings in awards the follow-
ing rules are ejfentially neceffary to be known. •
(?) If an adlion be upon an obligation &c. for performance
of an award; the-defendant cannot plead performance gene-
rjlly; but muff firft take Oyer of the obligation and condition,
&nd then fhew the award, and how he has performed ic. A Jo. 3.
And mull lhew performance of the whole award on his part.
3 Lev'. 24.
Or, a tender and refufal which is tantamount. Id.
And it is.fufficient, that the defendant alledges, that he per-
formed as much as the words of the award require him to per-
form; As if ail award be, that a fult do ceafe, and the plaintiff
jland acquitted of it, it is fufficient to fay, that he did not ptoje-
cute thefu.it, but the plaintiff was thence difcharged of it, without
{hewing a difcharge in fȣt. 2-Cro. 340. i Rot. 7..
. (2) So, to debt on an obligation for performance of an
award, the defendant, after oyer of the condition may plead, that
the arbitrators, made no avaard. -2. Sand.- 184. Lev. Ent. 40.
? Com. Dig. 556,
. If he pleads no award.\ he can lay bothirig by rejoinder, but
what fliews the award void. 1 245. •
If an award be void, it is fafeft to plead no fuch award; for
if he fets out the award, and pleads performance, the plaintiff
by his replication may fay that, the award was alio in fuch a
manner, (which will make it good) and join iffue upon the per-
formance, and the defendant cannot afterwards deny or traverfe
the award. 1 Rol. 6. 1 Com. Dig. 556. \
. And if the defendant plead a bad pleg, the plaintiff may de-
mur, and ilxu.ll have judgment without {hewing the award in
his replication, or alugning.any breach 3X^.17.
Yet if he plead no award, and the plaintiff fhew? an award
upon a lubmillion fo that &zc. (which would be a conditional
fibmiilxon) he cannot fay that there were other cpnteffs of which
there was no award; for that will be a departure, j Lev. 127.
I I tils. 122.
(?) If the defendant pleads, that the arbitrators made no
awurdy the plaintiff by his replication muff fhew the award,
and affign a breach of it. Lev. Ent 40 1 Com. -Dig. 556.
And the plaintiff" in debt upon the obligation mult lhew the
whole arbitrament; and therefore, to fajq amongji other things
it v as awarded, is not good. Lit. 313. 1 Com. Dig. 556.
So if he {hews an award which has a material variance, it
will be a bar; if the defendant prays oyer or joins iffued. 1 SalL
And
AWARD. 65
And he muft fhew the time and place of the award made. 2
rent. 72. Cont. 3. Lev. 239. And what arbitrators made it 9.
Fl. 6 5 If the arbitrament £hrwn be void or not well pleaded
the defendant may demur, and i.ave judgment for him. 1 Corn.
S57' Ltv, Ent. 40.
But if the award fhewn be good as to part, and void as to
part, tho' he muft fet out the whole award, yet he may affign
as a breach only non-performance of that which is good, and
on demurrer which confeffes the'breach aftigned, judgment {hall
be given for the penalty of the bond, which will be a bar to any
other adtion on the fame bond. 2 IVils. 268.
If the defendant fhew an awatd imperfe&ly in his bar, the
plaintiff in his replication muft fhew the whole award, otherwife-
he might be tricked. 1 Sand. 326.
• (4) So, the plaintiff by his replication muft {hew that the
award was made in all points purfuant to the authority of the
arbitrators. 1 Com. Dig. 557.
And therefore, if an award ought to be made before fuch a
day, the plaintiff fhall lhew it was made accordingly. Id.
If it ought to be ready to be delivered to the parties before fuch
a day, he muft fhew that it was ready to be delivered accordingly.
1 Rol. 416 L 5.
If the award was to be made in writing under hand andfeal,
and the plaintiff replies that it was made in writing, ic is not
well. Str. 116.
1 If it was to be under hand and feal, if he does not alledge,
that it was fealed, it is bad. 2 Cro. 278.
• • Or, if he does not fay under his hand, tho* he produces the
award fealed. 2 Mod. 77. Pal. 109, 112, 121—2 Rol. 243. 1
Bui. no. * -
If it ought to be delivered to either of the parties, he ought to
alledge a delivery to both. 2 Rol. 250. Cro. Eliz. 797.
So a parol award, if it be pleaded, that it was ready to be de-
llvered, is good ; for when it i3 pronounced, it is a delivery. 1
Salk 75. Mod. Ca. 160. 176.
If there be a fubmiftion, to be delivered fuch a day and placej
if he alledges a delivery to the parties the day before, it is fuffi-
cient. 2 Lev. 68.
If it be, to be delivered to the party who defires it ; it is not
neceffary to alledge that it was delivered; for it fhall come from
the other fide, that it was defired. 3 Mod. 330. Sho, 242.
If an award was by parol, it is luffieitut to ftiew the fub-
ftance or eftedl of it; for the words are not neceflary. 2 Vtnt.
242.
If
66
AWARD.
If there was an award to do two things, and as 'to one, it
was not vvidiout the fubmifhon; it is fuffcient to fay that he
performed the other. I Com. Dig, 558.
So if an aw a id be, io pay fo muJj or to give furety to pay fo
much; it is fudicient to fay thai he did not pay, for the other
part of the di jundiive was vend. Sav* 120.
If the def.ndant pleads no fuck award, it is not fufficient, that
the plaintiff fhevvs the award, he muft alfo affign a bieach.
' Tel. 78. ' '■ •'
Bat if the defendant plead a collateral matter &c. and the
plair tiff join iifue upon it, he need i;ot aflign a breachf Yd. 79,
Lnt. 52^. 3 Lev. 24.
If the plain tiff" diews an award and affigns a breach; the de-
fendant cannot afterwards alledge payment, or performance of
the thing in which the breach was afsigned, for that will be a
departure. I Com. Dig. 559.
(5) In debt 011 the awaid, the plaintiff need not fet forth
the whole award, only what is neceffary to fupport his claim,
and the defendant may impeach the award if lie can. 1 Bur 'c
278-
But in debt for a fum awarded, if the plaintiff fhews a de-
festive award, tho' more than he need to do, the declaration is
bad. Litt. 313.
On nil aebct pleaded, partiality in the arbitrators cannot be
given in evidence. 2 IViis. 148.
(6) a (jumpft be brought for not performing an award, the
declaration muft ihew an award good in ail refpedts. 1 Com»
®ig- 555-
XI. How an award may be relieved agamjt.
It has been already obferved in the foregoing part of this title
4 that the court (meaning a court of common law) will not en-
c ter at all into the merits of the matters refered to arbitration,
' but only take into confideration fuch legal objections as appear'
4 upon the face of the award, and fuch objections as go to the
* mifbehaviour of the arbitrators.' The fevcral modes by which
the pa. ty injured m.i) avail himfelf of thofe objections, have alfo
been fully pointer out. But as cafes may fometimes occur, in
which, the above rule would be highly rigorous, it is ncceifary
in the laft refort, to apply to a court of chancery. This tide
then ihail be concluded with a recital of fuch cafes in chancery,
as a c urt of law either did not poilefs jurifdiction over, or from
an adherence to the above rule could not a/Ford the neceifary
re. let.
Ther§
A W A R D.
67
There can be no doubt but that where the award is made in
purfuance of a rule of court, the court itfelf before which it is
turned, will, take notice of any legal objeftions appearing on
the face of the award, or fuch as go to the milbtluviour of me
arbitrators, provided they be made within the time limited by
the aft above recited, 1 Black's Rep. 363.
But it is doubted whether there can be a d fence at common
law, to an aftion brought on an award procured by corruption,
unlefs the award be made under a rule of court. See 2 Vcf y 315.
A court of equity will take cognizance of an award after the
time elapfed, by the ftatute. Bunb. 265.
&o, chancery will inforce an award, made on fubmifiion of
the parties, without an order of the court. 1 Ch. R. 35. 14.2.
2 Com. Dig. 375.
So, a court of chanceiy will decree the fpecific performance
of an award to convey an eftate, where the party fubmitting
has received the money, the confideration for doing it, 3 P.
W. 187.
So, if an award made by the order of courts be unreafonable,
chancery, will avoid it; as if it be awarded that a guardian {hall
give bond that the infant at full age fliali couVey. Ca. Ch. 280.
Or, if the award in any cafe bind an infant. Id.
So, if it appears that the arbitrators rniflook the faft or the
law. 2 Fern. 705 —So alfo will a court of law correft an er-
ror in law.—See 1 Black's Rep. 363:
If there is a palpable mifcaiculation, the party aggrieved may
bring a bill againft the other party, and not againit the arbitra-
tors. 3 Akyns 644.
But it is improper to come into a court of chancery to fet
afide an award merely for an objeftion in point of form. 2
Atk. 501.
If part of the evidence is not (hewn to one of the arbitrators
and he fwears if he had feen it, that he would net have made the
award, it Ihall be fet afide. 1 Atkyns, 63.
So, chancery will admit exceptions, tho* the reference is by
order of courr, with a claufe that the award {hall be confirmed
by the court without exception or appeal. 2 Fern. 109.
An award was fet afide becaufe the reference was made by
the defendant's folicitor, without the defendant's own aflent. Ca.
Cha. 87.
If one of the parties hearing that the arbitrator intends to
make his award, defires him to defer it till he can talk with him
to fupport Hated accounts, nptwithifauding which he mates his
award, the time expiring in two or three days, the court will
fet afide the award. 3 P. IP. 361.
68
AWARD.
A court of chancery will fet afide an award, if it be made
only for part of the matters refered I Ca, Cha: 87. 186.
Or, if an award is repugnant, or impoftible. 1 Ca. Cha. 87.
^nd therefore the court may examine the reafous and grounds
of the proceedings of the arbitiators, and what matters they
confidered. 1 Ch. Ca. 186.
A fubmiflion to reference by order of the court of chancery,
is revocable; but if the revocation be without caufe, it will be
a contempt to the court, Ca: Cha- 185.
If an award is made upon private fubmiftion without an order
of court, chancery, may avoid it, if it be made by corruption,
or if it exceeds the authority of the arbitrators. 1 Ca. Cha. 377.
So, if an umpire, before the time of the ,referees is elapled,
declares that he will give fo much, and afterwards does give
fo much, which was more than was demanded by either referee,
the award fha.ll be avoided; for it induces.a- preemption of cor-
ruption. 2 Fer. 100.
If an arbitrator makes an improper declaration, as that he
Will make A pay cofts, or that A having mifufed B, he will
now mulCt him in, his reprefentatives, the arbitrator fhall pay
cofts. 2 Fezey. 315.
If an arbitrator promifes to hear witneftes, and afterwards re-
fufes, or omits to do it, the award lhali be fet afide. 2 Fern.
251.
If a reference is to three, or any two of them, and two with-
out confulting the third (after finding that his opinion differed
from theirs) make up an award, it ihall be fet afiae. 2 Fern.
514.
So, if the arbitrators admit and hear one party, and conceal
their meetings from th? other. 2 Fern. 515.
So, if an arbitrator is a party who has an intereft in the mat-
ter in queftion;—or is a near relation to one of the parties. 2
Fern. 251.
Or, if they choofe an umpire by lot. 2 Fern. 485.
But the court of chancery will not avoid an award on account
of excefiive damages, if no fraud or partiality appears. 2 Ca.
Cha. 140. I Fern. 157.
Nor, for the non-attendance of one party, if he had an op-
portunity and would not attend to be heard, Eq. Ca. 63.
On a bill to fet afide an award, the plaintiff" will not be fuf-
fered to go into legal objections, except for ptytiality and cor-
ruption; but if the bill is for an account, and prays to let alide
an award, in order to let in fuch account, there the plaintiff
pay make legal objections. Amlder 245.
After
AWARD.
6 9
After employing fo many pages on the doftrine of awarls
alone, ic may appear ftrange to thofe whofe profeffional avoca-
tions never made it necellary to examine the extent of the fib-
jedi, that I Pnculd ftill refer to other authorities, and declare
that the limits prefcribed to myfelf in my engagements with the
public, abfolutely precluded me from dwelling any longer on
the lubje£t than would be fufiicient to give the necefiary prece-
dents, adapted to the foregoing title.
See on t Se doctrine of Awards, i Com Dig 534—-559 2
Com. Dig. 375—379 —3 Diner's Abr. 40—140, — Bacon"s
Abr. title Arbitrament. Kyd's treatife on awards, and Wilfn
on arbitrations.
f A) Form of fubmifion by rule of court.
(Note. If a fuit is inftituted and depending between the par
ties, there is no neceffity for this form, but the order is entered
on the minutes of the court, on motion of either party by th if
counfel. The following form is only necefihry where no a&ion
is a&ually depending.
IVhereas divers difputes and contr over fie s have a-ifon and are
now depending between A B, of of the one part, and C D v of
of the other part'. Now for the ending and deciding thereof
it is hereby mutuahy agreed by and between the faid parties, that
all matters in difference between them Jhall be refer ed and fubmit-
ted to the arbitrament, fnal end and determination of A A, of
B A, of and C A, of or any two of them, arbitrators
indifferently elefied by the faid parties, fo as the faid arbitrators,
or any two of them, do make and publijh their award in writing,
ready to be delivered to the faid parties^ or fuch of them as Jhail
defire the fame, on or before the day of next erfuing the
date hereof: And it is hereby mutually agreed by and between
the faid parties^ that this fubmffon jha.l be made a rule of court.
In witnefs whereof the parties to thefe prefents have hereunto ft
their hands this day of in the year &c.
(B) Arbitration bond.
Know all men by theje prefents that I A B, of am held and
frmly bound unto C D, in the fum of of lawful mo~
ney of Virginia, to be paid to the faid C D, or to his ceitain at-
iorney, his executors adminijirators or affgns: 10 which payment
well and truly to be made, I bind wffeif my heirs, executors and
adminijh a tors firmly by thefe prefeins, fealcd w iib my fai and dat-
ed this day of in the year of our lord and in the
year of the commomvealfh.
j. Condition
76
AWARD.
Condition to Jiand to the award of two arbitrators
hi the common form'.
The condition of the above obligation is fuoh, that if the above-
hound A R, his heirs, executors, and adminijlrators, and every
of them, for and on his and their parts and behalfs, do and fluid
well and truly jiand to, obey, abide, perform, obferve and keep the
award, order, arbitrament, final end and deter ruination of A A,
of and B A, -9/ arbitrators indifferently named, elefted,
and chofen, <2$ well for and on the part and behalf of the above
bound A B, above named C D, to arbitrate, award, or-
der, adjudge and determine, of and concerning all manner cf attion
and adlions, cthufe and caufes of adlion and actions, fuits, bills,
bonds, fpccialiies, judgment}, executions, extents, accounts, debts,
dues, jum and funis of money, quarrels, controverfies, trejpafes,
damages and demands whatfoever, both in law and equity, or
ciberwife howfoever, which at any time or times heretofore have
been had, made, moved, brought, commenced, fued, proj'ecutcd,
committed, omitted, done crfu.jfered by or between the [aidpartus,
Jo that the faid award be made in writing, and ready to be deli-
vered to the Jaid parties, on or before the day of next en-
fining; \and if the faid A B, his heirs, executors, or adminiflra-
tors, or any of them, Jhall not prefer, or caufe to be prefered any
bill in equity againjl the faid A A, and B A, or either of them,
for or concerning their award in the premifes j] then this obligati•
on to be void, otherwife to remain in full force.
If the parties have a mind to make their fubmiffion a rule of
court, then this may be added:
And the above named A B, doth agree and defire, that this bis
fubmiffion may be made a rule of court.
Condition to fland to the award of three arbi-
trators, or any two of them, and an
umpire appointed.
The condition of this obligate n is Juch, that if the above found
A B, his heirs, executors, and adminijlrators, for and on his and
th< tr parts and behalfs, Jball and uo well and truly fland to, obey,
abide, olferve, perform, fulff, and keep the award, order, arbi-
tr anient, final end and determination of or any two of them,
ay 0 it raters indifferently eledied and named, as well by and on the
f,<rt and behalf uf the faid A B, as by and on the part and bdmlf
0/ the joid C D, to arbitrate, award, order, judge and determine,
oj a :d concerning all and all manner of afiion and atlions, caufe
*nd cuiifes of action and anions, fuits, bills, bonds, fpeciahies,
covenants,
AWARD. ?i
covenants, contrails, promisef, accounts, reckonings, funis of mo-
t-ley, judgments, executions, extents, quarrels controverfies, tref-
paffes, damages and demands whatfoever, at any time heretofore
had, made, moved, brought, commenced, fued, profecuted, done,
fuffered, committed, cr depending, by or between the faid parties,
pb the award of the fid arbitrators or any two of them, be
made and jet down in writing, under their or any two of their,
hands andfeals, ready to be delivered to the fad parties in diffe-
rence, on or before the day of next enfuing, then this ob-
ligation to be void, elfe to be and remain in full force.
Jnd if the [aid arbitrators fall riot make fuch their aveard of
and concerning tie premfes, within the time limited as aforejaid, '
thru >f the fajd A B, his heirs, executors, and adminifrrators, for
and on his and their part and behalf, do a id J.hall ivell and truly
jland to, obferve, perform, fulfil, and keep the a waul, deter mina-
Uon, and umpirage [if the umpire be agreed on between the
parties, and named] of being a perfon indifferently named and
chofn between the faid parties for umpire; [but if not mmed,}
of juch perfon as the faid arbitrators fhail' indiffer ently chnfe for
umpire, in and concerning the premifes\ fo as the faid umpire do
pialce and fet down his award ani umpirage in writing, wrier his
hand and feu I, ready to be delivered to the faid parties in d'ffucvce,
on or before the day of next enfuing; then idc.
To this the parties may add a clauie as in the firlb precedent,
if they think i? neceffary* to reftrain any fuit being brought in
equity:—alfo tQ make the fubtniffion a rule of court.'
Form of an a ware}.
fo all to whom thefe prefects fall come, we A B, of and
C D, of do fend greeting.
Whereas there are feveral accounts depending, and»divers
controverfies have aiifen between of' ' of rhe or.e part,
and of of the other part: And whereas for the put-
ting an end to the faid differences, they the faid and
by their feveral bonds, or obligations bearing date iaff
paft, are reciprocally become bound each to the other in the
penal fufn of to (land to, abide, perform, and keep the
award, order and final determination < f us the faid fo as the
faid award be made in writing' and ready to be delivered to the
parties in difference, on or before next enfuing, as by the
faid obligations and conditions thereof may appear: Nov/ know
ye, that v/e the hid arbitrators, whole names are hereunto iub-
(cribed, and feals affixed, taking upon us the burden of the hid
awardj and having fully examined and duly confidered the proofs
72. A W A R P.
s.id allegations of both the faid parties, do make and publifh
this our award between the faid parties in manner following;
that is to f.iy; firft we do award and order, that all adtions,
fLi!ts, quarrels and controverfies ■-hatfoever, had moved, arifen
and depending between the laid parries in law or equity, for any
manner cf caufe wbatfoever touching the faid premifes, "to the
day of the date hereof, (hall ceafe and be no further profecuted;
and that each of the faid parties (hall pay and bear his own cods
and chatges in any wife relating to, or concerning the premifes,
And we do alfo award and order, that the faid fhall de-
liver or caufe to be delivered to the faid at within the
fpace of &c. And further, we do hereby award and order,
that the faid fhall on,or before pay or caufe to be
paid unto the faid the lorn of We do alfo award and
ordtr Uc< And laftly, we do award and order'that the laid
and on payment of the faid fum of fhall in due form of
law, execute each to the other of them, or to the other's ufe,
general releafes, fufficient in the law for the releafing by each
to the other of them, his heirq executors, and adminiftiatoisj
of all actions, fuit', arrefts, quarrels, conttoverfies "and de-
mands, wbatfoever, touching or concerning the premifes afore-
faid, or any matter or thing thereunto relating, fiom the begin-
nil g of the world, until the day of laft pad (viz tie
>< y' of the date of the arbitration bonds.) In vvitnefs whereof we
haW hereunto fet our hands and feals ttae day of &c.
Form of an umpirage.
Recite the arbitration bonds, as in the award.
Now know ye, that I * umpire mdifferently-chofen by
having deliberately heard and underffcood the griefs, al-
legations and proofs of b th the faid parties, and willing, (as
much as in me lieth) to fet the Ibid parties, at unity and" good
?coord, do by thefe prefents arbitrate, award, order, decree and
judge as felloweth; that is to fay fee.
BAIL.
T^AIL (from thy French laillcr, to deliver) dignifies the de-
£> livery cf a man out of cuftody, upon the undertaking of
one or more perfons fob him,' that he ihall appear at a day li-
noted,, to anfwer and be junihed by the law.. Hale's PL 96.
The laws of this commonwealth having afcertained t'nofe ca-
(us in v.hich bail fhall, or ihajl not.be required, much of the
ebfolete matter which has heretofore appeared in our books, on
this
BAIL, yj
this fubje£t (fo far at leaft as refpe&s the dodtrine of bail in this
Hate) may now be expunged.
The arrangement which I fhall purfue under th}s title will be
to conlider,
/. The difference between bail and mainprise.
IL When a pcrfon may be dif charged with-
out bail.
III. Who may or may not be bailed.
IV. Who may bail and the manner of it.
V. Of granting biiil where it ought to be denied.
VI. Of f-efufng bail where it ought to be admitted.
VII. Requiring exceffve bail.
VIII. Of bail by writ oj habeas corpus.
IX.. In what cafes bail fhall be - required in ci-
t/7 actions.
X. In what cafes bail fall not be required in
civil a Ft ions.
XI. OJ the power of a magifrate in dir citing
bail, in civil alt ions. *
XII. Special cajes in which bail is directed by
the laws of this commonwealth.
XIII. Offences pumfable, by the laws of this
commonwealth, by imprisonment with-
out bail or mainprise.
XIV. Various precedents*
I. The difference bfctween bail and mainprife.
The difference between bail and mainprife is, that main-
pernors are only furety, but bail is a cuflody; and therefore the
bail may retake the prifoner, if they doubt he will fly, and de-
tain him, and bring him before a juflice, and the juftice ought
to commit the prifoner in difcharge of the bail, or put him to
find new fureties. Hal. PI. 96.
II. When a perjon may be d:[charged without bail.
If a prifoner be brought before a juftice of peace exprefity
charged with felony by the oath of a party, the juftice cannot
difcharge him, but rnuft bail or commit him. 2 II. IP. 321.
But
74
BAIL.
But if he be charged with fufpicion rf felony only, yet if there;
be no felony at all proved to be comm'tted, or if the fa<£t charg-
ed as a felony b'* in truth no felony in point of law, the jufiice of
peace may difchar0e him, % H. H. 121.
II f. Who may or mav n:t he hailed.
By the common law, bail was allowed in all cafes but horn;-
cide, h&t now the act cf Afiernbly of this commonwealth p. 20.
clirefts what offenders fhall be admitted to bail and what not.
It enaCts 4 That thoie fhall be let to bail who are apprehended
c for any crime not punifhable in life or limb: And if the crime
4 be fo punifhable, but only a light fufpicion of guilt fall, on the
4 party, he (hall in bice manner b? bailable : But if the crime
4 be punifhable in life or limb, or if it be manflaughter, and
4 there be good caufe to believe the party guilty thereof he fhall
'not be admitted to bail.'
4 No perfon fhall be bailed after conviCHon of any felony.
For thofe caffs punifhable in life or limb, fee titles clergy
[benefit ojj and I'elc.-y.
IV. TV ho nay bail, and the manner of it.
It feems to be n general rule, that fo far as any perfons are
judges of any crime, fo far they have power of bailing a perfon
indicted before them of fuch crime. 2 hawk. 103—160. But
whether a hngle magiftrate may admit a perfon to bail or not,
brought before him and charged with a felonious offence, before'
indictment fecms to have been matter of doubt among our an-
c:ent writers on criminal law. See 2 Hawk. 160—153. Dak.
c. 12. But I have no. doubt, but t;hat in all cafes bailable by
our a£t of Afiernbly recited itj the preceding divifion of this ti-
tie, a fingle magittrale may admit to bail before conviction of
the felony.
The power cf the fheriff and confbble to admit to bail per-
/bus iufpcCted of felony, is taken away by feveral ftatutes.—■
Lamb. 15.
Any one jufiice might always in his difcretion either bail or im-
yrifon one who has given another a dangerous wound according
as it fhall appear from the whole circumflances that the part) is
rnoft likely to live or die. 2 Hawk. 160
A perfon who is to take bail may examine them on their oaths
as to their fuflicicncy. 2 H. H. 12.5.
And if a perfon who has power to take bail be fo far impofed
upon as to fuffer a prffoner to be bailed by infufEcient perfons, it
is (aid that either he, or any other perfon, who hath Dower to
V ' : ' bail
BAIL.
75
bail him, may require the party to find better fureties, and to
enter into a new recognizance with them, and may commit him
on his refufal; fob that inefficient fureties are no fureties. 2
Haivk. 141.
No perl'on fhould be admitted to bail by kfs than two fure-
ties* either of which fhould be fufficient to anfw er the fum in
which they are bound. 2 Haivk. 141.
With refpedl to the power of bailing an offender fent for fur-
ther trial by the court of examination, fee tide Criminals.
V. Of granting bail where it ought to be denied,
4 If any juflice let any go at large who is not bailable, or re-
4 fufe to admit to bail, any who have right to be admitted, af-
4 ter they fhall have offered fufficient bad, he fhall be amerc-
4 ed at the difcretion of a jury.' F. t. p. 20.
An information was granted againft a juliice of the peace for
the county of Surry, in England, for admitting a man to bail
on fufpicion of healing a mare. Stra, 1216.—King v. JF: Clarke.
VI Of refufng bail where it ought to le admitted.
Denying bail where it ought to be granted is a rnifdemeanor,
not only by the ftatute, but alfo by the common law, and pu-
nifhable thereby as an offence againft the liberty of the citizen,
not only by a£tion at the fuit of the party injured, but alfo by
indictment at the fuit of the commonwealth. 2 Hawk. 143.
VII. Requiring exceffive bail.
By the declaration of rights made by the Convention in May
1776, article 9 ; it is declared 4 That exceffive bail ought not
4 to be required, nor exceffive fines impofed, nor cruel nor un-
1 ufual punifhrnents infliifted.' F. /. p. 4.
VIII. Of bail by writ 0/habeas corpus.
As the enlargement of a prifoner may in nioft caies be pro-
cured by writ of bebeas corpus, it has been ufual in treatifes of
this kind to confound that lubject with the do&rine of bail. I
fhall, however, make it a diltindt tide by itlelf, and give the
neceffary inftrudtions for its ufe. See title, habeas corpus.
IX. In what cafes bad 'fhall be required in civil
a 51 ions.
In all actions of debt, founded on any writing obliga'ory, bill
or note in writing, for the payment of money or tobacco, and
dl adlions of covenant, or Jclinnc, the plaintiff 01 his arrorney
lli.fi
76
bail.
fhall cn pain of having his fuit difmifled with cods, t-ndorfe on
the original writ or fubfequent procefs the true fpecies of adtion,
and that appearance bail is required. V, I. p. 85.
The above law applies both to the difiridt and county court.
See the form of a recognizance of fpecial bail both in the
diftridl and county courts, among the precedents to this title,
No. 2.
X. In what cases bail fhall not be required in
• civil aSlkns.
In all adlions to recover the penalty for breach of any penal
law, not particularly directing fpecial bail to be given, in adti-
ons of jlancler, trfpafs^ affauft and battery, actions on the cafe,
for trover or other wrongs, and allperfonal anions, except thofe
above enumerated, viz. debt covenant and detinue, the plaintiff
or his attorney fhall in like manner and under like penalties in-
dorfe on the original writ or fubfequent procefs, the true fpecies
©1 adtion, 4 that the floeriff to whom the fame is direfled^ may be
4 thereby informed whether bail is to be demanded on the execution
4 thereof d V, I. p. 85.
4 No fpecial bail ihall be requirable in any fuit brought on a
4 penal law, unlefs by fuch law it is exprefsly diredted.' V. I.
p.. 113.
Nor of a refident of one county, on a capeas ad 'refpondendum
ifiiied againft him in another—unlefs the caufe of adtion origi-
nated where the fuit is brought, or a non ejl~inventus^ is not re-
tuTned in his own county. Such writ without an indorfement
of 4 no bail required,' fhall be difmifled. V, I. p. 94.
XI, Of the power of a magi/Irate in direffing
bail in civil ad ions,
, This power has long been given to the judges of the luperior
courts of common law in this commonwealth ; but was never
exprefsly granted to the juftices of the peace till the year 1792.
.After enumerating the feveral cafes in which the true fpecies of
adlion fhall be indoiffcd on the writ, for the information of the
fheriff in demanding bail, the law concludes : 4 provided always,
4 That any Suffice of the peace, in adtions of trefpnfs, affault
4 ar.d battery, trover and converflon, and in adtions on the cafe,
4 whereupon, proper affidavit, or affirmation, it fhall appear to
4 him propei, that the defendant 05 defendants fhould give ap-
4 'pearar.ee bail, may, and he is heieby authorifed to diredt fuch
bail to be taken by endoifement on ike ciiginal writ, or fub-
4 fequent
BAIL.
//
1 iequent procefs j and every (heriff (hall govern himielf ac-
4 cordingly. V.- /. />. 93.
Note. The fame remedy is now given to the common bait
who actually pays money on account of the principal, as to fecu-
rities on fpeciaities againft their principal. V' L pi 293*
XII. Special cafes in which bail is required by the
laws of this commonwealth. .
Ballast. In any fuit brought for the penalties againft the
owner of a veflel, for unlading ballaft or cafting dead bodies
into the water contrary to law. V. I. p. 214;
Convicts. In all anions for the penalty of 5c!. fbr bringing
any convidt into this ftate. F I. p 44.
Flour. On actions for the penalties on the act to regulate
the infpedtion of flour and bread. F. I p. 241.
Hogstealing. In all fuits or informations brought againft:
'free perfons for hogftealing, F. L p. 186.
Quarantine. In fuits for penalties for breach of laws of
quarantine. F. /. p. 2561
Sailors &c. fick or dfabled. Iri any a&ioti of debt or infor-
mation brought againft the mafler of a veficl for putting on fhore
any flclc or difabled failor or fervant, without providing for their
maintainance and Cure. F. h p. 214.
Slaves. Againft the mafler of a veflel for carrying a Have
out of the ftate. F. I p. 201.
Transporting debtors out of the Jiate\ In all adtionS
againft the riiafters of vefiels for carrying debtors out of the
country without having advertifed their intention to depart, for
fix week fucceflively in the Firginia Gazette. F-. L p. 125.
XIII. Offences puniffable by the laws of this com«
monwealthy by imprisonment with Fat bail
or ?nainprize.
Convicts. For bringing any convict into this ftate, three
months impriOnment without bail. F. I. p. 44.
Counterfeiting letters, or privy tokens. Imprifon-
ment withoutbail for any fpacenotexceedingoneyear. See Cheats»
Marriages. Miniftets celebrating marriages without licence
or publication of banns,—twelve months imprifoninent without
bail. See V. L p. 202.
Granting falfe certificate of publication of banns, the fame
pent lty as next above*
Clerk of the court granting- marriage licenfe contrary to law.
Set F. I. p. 204.
K. White
78 BAIL.
White perfons marrj ing with negroes or mulattoe§, fix months
imprifonment without bail. F. /. p. 205.
Ordinaries. A perfon convi&ed of keeping a tipling houfe,
or a fecond time of retailing liquors without licence.—Six
months imprifonment, without bail. F. I. p. 212.
Perjury. A perfort guilty of it, is punifhable by fine not
exceeding 200 pounds, and imprifonment 12 months without
bail or mainprise.
WoMEfc. Taking away a womaii under the age of 16 years,
imprifonment without bail &c: not exceeding two years. Sr*
Women, and F. L p. 206.
Taking away and deflouringj five years imprifonment with-
out bail. Id.
XIV. Various Precedents.
(A) Recognizahce of bail in a criminal offence.
Be it remembered that on the day of in the year of
our lord and in the year of the independence of the
United States of America* A O, of the county of labou-
rer, A B, of the faid county labourer* and B B, of the faid
county labourer, came before me J P, one of the common-
wealth's juftices of the peace for the county of aiid feve-
rally acknowledged themfelves to be'indebted to A G, go-'
vernor < r chief magiftrate of the commonwealth of Virginia,
and his liiccefibrs, that is to fay, the faid A O, dollars,
and the Aid A B, and B B dollars each, to be refpe&ively
Uv.od c their lands and tenements, goods and chattels, if the
fii.i A G, ihal) make default in performance of the condition
under wr'tten.
i'he condition of this recognizance is fuch, that if the above
b' 11 lid A O, fliall perfonally appear before the commonwealth's
I j- 1 ices ailigtlcd to keep the peace in and for the county of
a refaid, on the day of then and there to anfwer
to the commonwealth afortfakJ, for and concerning (here recite
tw offence) with winch the faid AO, fl; nds charged before
n > , and to do and receive what by the faid court fhall then and
+uLre he oidered and adjudged, and fliall not depart thence with-
out the leave of the find court, then this recognizance lhall he
void, or cite remain in full force and virtue.
AchioivUdgi'd 'bcf&e me.
1 he precedents for bailing an offender after a court of exa-
mination has been held, are rr hrved for titlp Criminals, as it is
my wifh to celled! under 01 e head full and corredt forms for all
kinds of criminal proceedings.
(B)
B A.I L.
79
(B J Recognizance of special bail in the dijlrihi\
and county courts,.
county to wit.
Memorandum, That ppon the day of in the
year of our lord A B, of the county of perfonally
appeared before me J P, (one of the judges of the general court,
or ajuftice of the peace fo.r the county aforefluJ as the cafe may
Le) and undertook for C D, at the fuit of B P, in an adtion of
now depending in the diftrid court appointed by law, to
be holden at [of, in an adion of now dcpening in,
the court of county,] that in cafe the faid C D, (hall be,
cad in the faid fuit, he the faid C D, will pay and, fatisfy the
condemnation of the court, or render his body to prifon in exe-
cution for the fame, or that he the faid A B, will do it for him.
Form of a bail piece, ufually given to the bail by the judge or
magiftrate before whom he enters into the recognizance.
county to wit.
C D, of the parifh of in the county of is deli-
vered to bail, on a cepi corpus, unto A B, of the p.irifh and
County aforefaid, at the fuit of B P, the day of in
the year of our lord
4 Any. judge of the general court, when the diftri.d court is
4. not fitting, or any juftice of the peace, m.ay take recognizance,
4 of fpecial bail in any adion therein depending, which fnall be
4 tfanfmitted by the perfon taking the fame, before the nextfuc-
4 ceeding court, to the clerk, of the faid court, to be filed with
4 the papers in fuch adion; and if the plaintiff or his attorney fhall
' except to the fufficicncy of the bail fr taken, notice of fuch ex-
4 ception fhall be given to the defendant or his attorney, at lead
4 ten days previous to the day on which fuch exception fnall be
4 taken, and if fuch bail fliall.be adjudged i ifuflicient by the
4 court, the recognizance thereof fha]j be discharged, and fuch
4 proceedings fhall be had, as if no fuch bail" had been taken.'
s5. ;
Special bail may b.e taken in court at the quarterly tefuens,
or at the monthy courts.' j\ I. p. 92.
Any j uflice of the peace, when the courts are not. i it ting,
may take recognizmce of fpecial bail in any adion therein de
pending, which fhall be returned by the juflice taking the fame
to the clerk of the court, before the next fucccedidg quarterly
court, to be bled with the papers in fuch adion. /'. I. p. 94-
For the form of a hail bond to the'flier'. fF, fee title 4 Jberipf.'
Ballad^
8o BALLAST.
See Virginia lawsy chap, Io3. p. 214. of the Revifed Code.
Certificate to be given by the ballafl inajler, to the
tnajler or owner oj a veffel,
county to wit,
I DO hereby certify, that purfuant to notice to me given by
A B, matter of the (hip now riding at on
jiver, I did repair to the faid fhip, and there attend until I had
caufed the ballaft on boawd her to be delivered out, and put on
fbore in fuch places that the fame cannot, in any wife, obftruCt
navigation, or be wafhed into the channel of the faid river.
Given under my hand this day of in the year of
C D, ballalr matter.
Bank Notes.-—See furety for the good behaviour.
BARRATRY.
I. What it is.
II. How punijhed.
BARRATRY, is derived either from the Daves or Nor-
mans: barraiia in the Danifhi and baret in the Norman
languages equally fignifying a quarrel or contention.
And a barrator, in legal acceptation, fignifies, a common mo-
ver, exciter, or mainiainer of fuits or quarrels^ either in courts^
ar in the country. 1 Inf. 368. I Hawk. 524.
1. Barratry may be committed in courts, by malicioufly
ttirring up unjuft a&ions or fuits between other men. 1 Inf.
368- ...
But a perfon cannot be guilty of barratry in confideration of
a'fingle a£t, for every indictment rouft charge the defendant
yrith being a common barrator. 1 Hawk, 525.
Neither can an attorney be faid to be a barrator in refpeCt of
his maintaining another, in a groundlefs adfion, to the commenc-
ing whereof he was 110 way privy. 1 Hawk. 525.
Nor fhall a man be adjudged a barrator for any number of
falfe aCtions brought by him in^his own right, becaufe in fuch
cafes he is liable to pay cofts. 1 Hawk. 525.
But fuing another in a fictitious name, either not in being at
9II, or where the nominal plaintiff is ignorant of the full is
barratry. 4 Blacks. Com. 134.
2. Barratry, may be committed in the country. 1. By any
^ind of difturbance of the peace. 2, By taking and keeping of
poffefiion ■
BARRATRY. 81
pofleilion of lands in ccntroverfy, not only by force, but alfo by
fubtilty and deceit, and mo ft commonly in fuppreflion of truth
and right. 3. By fali'e inventions, and fowing of calumniati-
ons, rumours, and reports, whereby difcord and difquiet may
grow between neighbours. 1 Injl. 368.
By Virginia laws p. 219. 4 Perfons who forge or divulge any
4 falfe reports, tending to the trouble of the country, (hall be by
4 the next juftice of the peace fent for, and bound over to the
4 next county court; where if he produce not his author, he
4 ihall be fined forty dollars (or lefs if the court lhall think fit. to
4 leffen it) and befides give bond for his good behaviour, if it
4 appear to the court that he did malicioufly publifh or invent it.'
II. How punijhed.
If the offender is a common perfon, it. is faid, he {hall be
fined and imprifoned, and bound to his good behaviour, and if
they be of any profefiion relating to the law, he ought alio to
be further punifhed by being difabkd to pra&ice for the future.
I Hawk. 526.
Barratry and common fcolding are the only offences for which
a general indictment vvll lie, without fetting forth any of
the particular fads; for barratry is of a complicated nature,
confiding in the repetition of divers a&s to the difturbance of
the peace, and the enumeration of them would render an indict-
ment much too prolix. For this reafon it is fufficient to charge
the offender generally as a common barrator, and before the
time of trial to give the offender a note of the particular fads
intended to be proved againft him. Without this notice it
would be impofilble for a perfon to defend himfelf againft fo ge-
neral and uncertain a charge, which may be proved by fuch a
variety of different inftances; and therefore the court will not
differ the profecution to be brought on to trial without fuch no-
tice being given to the defendant. 1 Hawk. 526.
Alfo it hath been holden, that an indi&ment of this kind may
be good, without alledging the offence at any particular place, be-
caufe from the nature of the thing, confiding in the repetition of
feveral aCts, it muft be intended to have happened in feveral pla-
cesj for which ca'ufe it is faid that the trial ought to be by a
jury from the body of the county, 1 Hawk. 526.
Warrant againft a barrator.
To 07 any other conflable of the county of and to the
keeper of the common jail of the faid county.
County,
84 BA STARDS.
/. • Who Jhall be deemed a baftard.
IL Proceedings againd the reputed father of a
bajlard child.
III. Capacity of a bafard as to inheritance.
IV. Concealing the death of a badard child♦
I. Who fhall be deemed a baftard,
TH E word bajlard is derived from the Saxons, and com.
pounded of bafe, ignoble, qn 6 ft art or Jleort a rife or ori>
ginal. By the common people in the north (among whom ii
retained much of the ancient Saxon) it is {fill pronounced bajlart
denoting a perfon fprung from a vile or fpurious origin ; as ar
upftart is a perfon fprung from a mean extra&ion in general.
I Burn's JuJl. 179.
Lord Coke fays, we term all baftards that are born out of
lawful marriage.—But fee F'trg. laws, p. 17%,fe£l. 19, whfere
baftards become legitimate by the fubfequent intermarriage of
the parents.
By the common law, if the hufband be ^ within the four feas,
that is within the jurifdi&ion of the country of which he is a ci«
tizen, if the wife hath ifliie, no proof could be admitted to prove
the child a baftard, unlefs the hufband had an apparent impojft-
bility of procreation} as, if the hufband be but eight years old,
or under the age of procreation, fuch iffue is a baftard, altho' it
be born within mart iage. But if the iftue be born within a
month, or a day, after marriage, between parties of full lawful
age, the child is legitimate. 1 Injl. 244.
In the cafe of Lomax and Holmden, in ejedftmentj on a trial at
bar, the queftion was whethei the leffor of the plaintiff was fon
and heir of Caleb Lomax, ejquire, deceafed, which depended
upon the validity of his mother's marriage} and that being fully
proved, and evidence being given of the hufband's being fre-
quently in London., where the mother lived, lo that accefs muft
be prefurned. the defendants were admitted to give evidence of
his inability from a bad habit of body. But their evidence not
going to an hnpojjilnli'.y, but an improbability only, that was not
thought fuilieient, and there was a verdidt for the plaintiff. Str.
940. '
Formerly it was held that if the hufband was within the four
feas no proof of non accefs to his wife ftiould be admitted} but
ti e child was deemed to be his} but as this notion was built on
no rational foundation, it is now entirely departed from} and
tho'
BASTARDS. 85
tho' the hufband and wife are both in England if there is fuffici-
ent proof that the hufband could have no acceR to her, the child
will be a baflard, agreeable to the following determina ion. An
ifiue was directed out of chancery, in the cafe of P em-tell and
Pcnd-ell, to try whether the plaintiff was heir at law to one
Lbomas Pendrclh it was agreed that the plaintiff's father and
mother v/ere mat tied* and cohabited for fome months; that
they afterwards parted, fhe flaying in London, and he going.
mlo Staffordshirethat at the end of three years, the plaintiff"
was born. And there being fome doubt upon the evidence,
whether the hufband had not been in London within the lafl
year, it was fent to be tried. And the plaintiff refled at firff:
upon the prefumption^ of law in favour of legitimacy, which
vis encountered by flrong evidence of no accefs. And it was
agreed by the court and counfel that on the trial at Guildhall
before h rd chief juftice Raymond, that the old dodlrine of being
within the four feas was not to take place, but the jur) were at
liberty to confider of the point of accefs, which they did, and
found againft the plaintiff. And the court of chancery acquicfc-
ed. Stra. 625.
See alio on the above docflsme the cafes of the King and in-
habitants of Bedall in Yorkjh'irs, Strange loyb-—The King and
Abberton. lord Ray?n. 395, 396.
But the non accefs of the hufband ought to be proved other-
wife, than upon the wife's oath; as in the cafe of K. and Read»
ing. 1 he defendant Reading was adjudged to be the putative
father of a baftard child, begotten of the wife of one Almonte
of Sherborne. The faid 'woman on the appeal gave evidence
that the faid Reading had carnal knowledge of her body in or
about Auguft 1732, and feveral times fince ; and that her huf-
band had no accefs to her from May 1731, to the time of hed
examination in that court, being the 3d of Odtober 1733, and
that the faid Reading was the father of the faid child.' And the
.queftion in K B, was whether the wife in this cafe fnould be
admitted as an evidence tor or againft hufband, and to b'aftcr-
dize her own child. And the whole ccn-.rt were of opinion that
the wife could be a witnefs to no other fuel bui that of hiconti-
nence, and that this fhe mud be a witnefs to from the neceffity
of the thing; but not to the a bib nee of her hufband, which
might properly be proved by other whnefles; and likened it to
the cafe of hue and cry,- where the perfon robbed (hall be ad-
miited a witnefs of the fait of robbery, but not to prove any
Other nutter relating thereto, as in what plyc° the robbery was
committed, and the like. 2 Srfs Ca.. 175.
See alio fhe cafe K & Rooke. 1 Jp'hs340.
L. ' lii
84 BASTARDS.
I. Who Jhall be deemed a bajlard.
II. Proceedings againfl the reputed father of a
bajlard child.
III. Capacity of a bajlard as to inheritance.
IP. Concealing the death of a baHard child.
I. Who fhall be deemed a baftard,
TH E word baftard is derived from the Saxons, and com-
pounded of bafe, ignoble, zyid ftart or Jieort a rife or ori-
ginal. By the common people in the north (among whom is
retained much of the ancient Saxon) it is {fill pronounced bajlart,
denoting a perfon fprung from a vile or fpurious origin \ as an
upftart is a perfon fprung from a mean extradtion in general.
I Burn's JuJl. 179.
Lord Coke fays, we term all baftards that are born out of
lawful marriage.—But fee Firg. laws, p. 1719, where
baftards become legitimate by the fubfequent intermarriage of
the parents.
By the common law, if the hufband be within the four feas,
that is within the jurifdi&ion of the country of which he is a ci-
tizen, if the wife hath iflue, no proof could be admitted to prove
the child a baftard, unlefs the hufband had an apparent impojft-
bility of procreation ; as, if the hufband be but eight years old,
or under the age cf procreation, fuch iffue is a baftard, altho' it
be born within mariiage. But if the iflue be born within a
month, or a day, after marriage, between parties of full lawful
age, the child is legitimate. 1 Inft. 244.
In the cafe of Lomax and Holmden, in eje&mentj on a trial at
bar, the queftion was whether the leflbr of the plaintiff" was fon
and heir of Caleb Lomax, ejquire, deceafcd, which depended
upon the validity of his mother's marriage; and that being fully
proved, and evidence being given of the hufband's being fre-
quently in London, where the mother lived, lb that accefs mud
be prefurned. the defendants were admitted to give evidence of
his inability from a bad habit of body. But their evidence not
going to an impoftUnli'.y, but an improbability only, that was not
thought fidlicienr, and there was a verdidl for the plaintiff. Str.
9P;
Formerly it was held that if the hufband was within the four
feas no proof of non accejs to his wife fliouid be admitted; but
li e child was deemed to be his; but as this notion was built on
no rational foundation, it is now entirely departed from; and
tho'
BASTARDS. S5
tho' the hufband and wife are both in England if there is fuffici-
ent proof that the hufband could haVe no accef. to her, the child
will be a baliard, agreeable to the following determina ion. Ati
ifiue was directed out of chancery, in the cafe of Penan ell 'and
Pcnd-el!^ to try whether the plaintiff was heir at law to one
Jhornas PendrelU it was agreed that the plaintiff's father and
mother were mattied, and cohabited for fome months; that
they afterwards parted, {he ftaying in London, and he going,
into Stajfordjhire-, that at the end of three years, the plaintiff
was born. And there being fome doubt upon the evidence,
whether the hufband had not been in London within the lafi
year, it was fent to be tried. And the plaintiff refled at firft
upon the prefumptiont of law in favour of legitimacy, which
vis encountered by ftrong evidence of no accefs. A.nd it was
agreed by the court and counfe! that on the trial at Guildhall
before 1. rd chief juftice Raymond, that the old dodlrine of being
within the four feas was not to take place, but the jur) were at
liberty to confidcr of the point of accefs, which they did, and
found again# the plaintiff. And the court of chancery acquicfc-
ed. Stra. 625.
See alfo on the above dofhlne the cafes of the King and in-
habitants of Be da 11 in Torkjhi're, Strange 1070—*The King and
Abberton. lord Raym. 395, 396.
But the non accefs of the hufband ought to be proved other-
wife, than upon the wife's oath 5 as in the cafe of K, and Read-
ing. T he defendant Reading was adjudged to be the putative
father of a baftard child, begotten of the wrife of one Almonl,
of Sherborne, The faid 'woman on the appeal gave evidence
that the faid Reading had carnal knowledge of her body in or
about Auguft 1732, and feveral times fince ; and that her huf-
band had no accefs to her from May 1731, to the time of het1
examination in that court, being the 3d of October 1733, and
that the faid Reading was the father of the faid child. And the
queftion in K B, was whether the wife in this cafe fhould be
admitted as an evidence for or again# hufband, and to1 bafter-
dize her own child. And the wnoie court were of opinion that
the wire could be a witnefs to no other fa A but that of inconti-
nence, and that this ihe mult be a witnefs to from the neceffity
of the thing; but not to the abiencc of her hufband, which
might properly be proved by other wh.oeflbs; and likened it to
the cafe of hue and cry, where the perfon robbed (hall be ad-
mitted a witnefs of the fadt of robbery, but not to prove any
other nutter relating theteto, as in what place the robbery was
committed, and the like. 2 Sefs Ca. 175.
Sec ah. 1 the cafe A iA Rooks. I R/'ns. 34.0,
L, lii
86 BASTARDS.
In the cafe 6f Alfop and Bowtiell, the tpieftion was whether
the woman being delivered of a child forty weeks and nine days
after the death of her hufband, fuch child fhould be deemed a
baflard. And it was proved that £he fuffered very great abufe
from the father of her deeeafed hufband, who caufed her to lie
in the ftreets; and three phyficians (two of them being do&ors
of phyfic) made oath that the child was born in convenient time
to be the child of the party who died} and that the ufual time
for a woman to go with child is nine months and ten days; to
wit, folar months at thirty days to the month, and not lunar
months; and that by reafon of the want of flrength in the wo-
man or the child, or by reafon of ill ufage> fhe might be a Ion-
ger time, to wit, to the end of ten months or more. And the
phyficians farther affirmed, that a perfe<5t birth may be at feven
months, according to the ftrength of the mother or child, which
is as long before the time of the proper birth. And by the fame
reafon it may be as long defered by accident, which is com-
monly occafioned by infirmities of the body or paffions of the
mind. And the child was adjudged to be legitimate. Cro. Ja.
By Virginia laws, p. 178. feft. 18. 4 Where a man having
4 by a woman one or more children, fhall afterwards intermarry
4 with fuch woman, fuch child or children, if recognized by
4 him, fhall be thereby legitimated. The iffiie alfo in marriages
4 deemed null in law, fhall never thelefs be legitimate.
II. Proceedings againft the reputedfather of a
bajlard child.
Having feen who are deemed baflards, by the common law,
it will next be necefiary to confider the proceedings which
are authorifed by the laws of this commonwealth, againft the
reputed father of fach child or children, when there is a proba-
bi.ity of their becoming chargeable to the county.
Thefe proceedings are regulated by Virginia laws, rhap. 102.
p. 193—■-feci. 23 & 24 of the Reviled Code, which fee.
(A) Examination of the Woman.
county to wir.
The examination of A. M, of in the jaai county, /ingle-
woman, taken up on oath before me J P, one of the .om/ncnwialth's
jufices of the peace for the county aforejaid, this day of
in the year who Jaith that (in the day of laji
BASTARDS. 87
pafty at in the county arorefaid, Jhe the faid A M, was
de liver d of a (male) bajtard child, and that the faid hajiard child
is likely to become chargeable to theJaid county, and that A F, of the
faid county labourer, did get her with child of the Jaid bajlard child*
Taken and fgned the day and year 1 A. M* *
above written before me y
j. p. J
(B) Warrant again]} the reputedfather•
county to wit.
To or any other confable of county,
Whereas A M, of in the faid county, fingleu oman, hath
by her examination taken in writing upon oath before me J P, one
of the commonwealth's jujlices of the peace for the county aforcfaHy
declared, that on the day of now laf pajl, at in
the county aforefai'd, Jhe the faid A M, was delivered of a (male)
b fiard child, and that the faid baflard child is likely to become
chargeable to the Jaid county, and hath charged A F, fl/ in
the faid county iabourer, of having gotten her zuith child of the
faid baflard child'. And whereas O P, one of the overfeers of the
'poor in the county aforefaid, in order to indemnify the faid county
in the premifes, hath applied to me to ifjite my warrant for ap~
prehend'tng the faid A F; I do ih'refore hereby command you,
immediately to apprehend the faid A F, and to bring him before me
or fome other of the commonwealth''s jufices of the peace for the faid
county, to find fujficient fecurity in the futn of thirty dollars, Jar
his perfonal appearance at the next court, to be held for the faid
county of and then and there to abide by and perform the
order oj the faid court herein, in purfuance of the adt of the Ge-
neral AJJembly, entitled 4 An a£l providing for the poor, and de-
4 claring who Jhall be deemed vagrantsGiven under my hand
and fial, this day of in the year
(C) Another warrant.
From Starke's Juftice, p, 48.
To or any other confable of county, [and to the
keeper of the jail of the faid county. J
fc. " ' '
Whereas complaint is made to me by and over-
feers of the poor, of the ctmnty aforefaid (or of the county Of
as the cafe may be) that of the aforefaid county '
finglewoman hath been lately delivered of a baltard child withitn
the
S8 BASTARDS.
the faid county, which child is likely to become chargeable
thereto j and whereas the laid hath charged, upon oath
cf the county of (or of the fame county) to have
begotten the fa id child on her body : Thefe are, in the name
of the commonwealth, to command you to caufe the faid
to appear before me, or fome other juftice of the peace of this
county, to find fufficient fecurity, in for his perfonal ap-
pearance, at the next court to be held for this county, then r.nd
rhere to abide by, and perform the order of the faid court here-
in, and m the mean time to be of good behaviour. (And if the
faid fhall refufe fo to do, that then you fhall convey him
to the jail aforefaid, and deliver him fafely to the keeper thereof,
together with this warrant. And you the faid keeper are alfo
commanded to receive the faid into your cuftody, and
him falely to keep in the common jail until he fhall find fuch
fecurit as aforefaid, or until he fhall be difcharged by clue couife
of law.) Given under my hand and feal this day of
jn the year
The foregoing precedent has fo long been in ufe that it may
appear prcfumptuous in me, at this time, to doubt the validity
of any part. I cannot, however, think that part of it which
authorises ibe conflable to convey the reputed father to prifon in
fafe of refufal to find fecurity, warranted by law. Thefe pro-
Ceedings arc unknown to the common law, and exift only by
virtue of the ffatute. Does the a<5f of Afiembly autborife the
confiable to take fecurity for the appearance of the party at
court?—-or can the magifbate transfer the power vefted in him
to the confhble?—or can the ccnftable adminifter an oath to
the fccurities in order to judge of their fuiiiciency?
When the father is brought before the jufHce he muft enter
into a recognizance, with fecurity for his appearance at t'ne
next court to be held for the county, to which court the juitice
ihould certify the recognizance, as ufual.
(DJ The Recognizance.
county to wit.
ivtiemorandum, That upon this day cf In the year
of cur lord A F, of the county of labourer, A B, of
the faid county, labourer, and B B, of the faid county labourer,
perjona'iy appeared before me J P, one of the commonwealth''s juf-
iices, of the peace for the county aforejaia, and acknowledged that
they do. owe to G, governor jr chief tnagijlrate of the common-
wealth of Virginia, and his fuccefforss to wit, the faid A F, in
the
BASTAR DS. 89
the fum of thirty dollars, and the faid A B, and B B, each feve-
rally in the fum offifteen dollars, of lawful money of Virginia; to
he levied of their refpefiive goods and chattels, lands and tene•
mcnts, to the ife of the faid commonwealth of Virginia, if default
Jhould be made in performance of the condition here underwrite
ten.
The condition of this recognizance is, that whereas A M,
of the county of (or of the faid county, as the cafe m*y be)
ftnglewoman, hath by her examination on oath befoie me, (or
btlore one of the commonwealth's Juftices of the peace
for the county of ' as the cafe may be) declared that on the
day of laft pad, ihe was delivered of a baftard child in
the county of (or, in the county aforefaid) which is likely
to become chargeable to the laid county, and hath charged the
above bound A F, with having gotten her with child of the
faid baftard child: Now if the faid A F, (hall perfonally appear
before the commonwealth's juftices of the peace, at the next
court to be held for the county of and fhall abide by and
perform the order or orders of fuch court, as fhall be made in
the premifes, then this recognizance to be void, otherwife to
remain in full force,
acknowledged before me.•
If the reputed father refufes to enter into a recognizance, the
juftice may commit him.
(Ej Mittimus.
To the flierijf, or keeper of the jail of the county of
county to wit.
I herewith fend you the body of A F, of this county labourer,
who was this day brought before me J P, one of the common-
wealth's juftices of the peace for the laid county, being charged
on oath by A M. ©f the county aforefaid, ftnglewoman, to have
gotten her with child, of a baftard child, of which (he hath been
lately delivered within the faid county, and which child is likely
to become chargeable to the faid county; and the faid A F, la-
bouier having refufed, before me, to find fufficient fecurity for
his appearance at the next court to be held for this county, to
anfwer the faid charge:' Thefe are therefore in the name of the
commonwealth, to command you to receive the body of the
faid A F, into your cuftody, and him fafely to keep in the com-
rnon jail, until he fhall thence be dilcharged by due courfe of
law. Herein iail not at your peril,, Given under my hand and
M Sec.
Where
go BASTARDS.
Where the perfon charged with being the father of a baftard
child is an inhabitant of another county, the examination fhould
be certified to a justice of that county, upon the application of
the overfeers of the poor of the county wher; the child is born,
for a warrant to apprehend the father; and by fuch juftice be
returned, with the recognizance for the appearance of the la-
ther, to the next county court.
III. Capacity of a bajtard as to inheritance*
By Virginia laws p. 178. fell. 18, ' Baftards fhall be ca-
6 pable of inheriting^ or of tranfmitting inheritance on the part
* of their mother, in like manner as if they had been lawfully
4 begotten of fuch mother.*
IF* Concealing the death of a bajlard child.
This aft was declared to be murder by 9 Anna, f 1710J chip.
II. p. 59. sf the edition of 1769; which law was nearly copied
from the ftatute of England 21. J. c. 27.
By thefe ftatutes a new lelony was not created, but the aft
of concealment was made undeniable evidence of a felony; there-
fore the indiftment need not be drawn fpecially or conclude
againil the form of the ftatute. See 2 Hawk. 438.
Formerly the bare attempt to conceal the death of a baftard
child was held conclufive evidence of murder. 2 Hawk. 438.—
But now feme kind of prefumptive evidence is necelfary that
the child was born alive. 4 Blacks 198,
Whether the legifiature of Virginia intended to abolilh the
difiinftion between this offence and the common cafes of mur-
der, or whether it was a mere omiffion in' them, it is difficult
to determine, but, fo it is that thefe ftatutes have not been pub-
lifhed in the Rtvifed Cade printed in 1794.
It would feem, however, from the rules of legal conftru&b
on, and from the principle eftablifhed by the high court
of chancery, in Virginia, that the a£i of 9 Ann. is ftill in
force, not having been exprefsly repealed. See lVythe"s Chan-
■eery decifons. 33. Harrtfn Iff al. v. Allen.
Should it be confidered that the above law is in force, the
precedents under titles JVarrants, Commitment, Recognizance,
Criminals, and Homicide; may eafily be adopted.
Bigamy
B I G A M Y.
91
Battery. (See AITault.)
Bawdy-houfe. See Lewdnefs.)
Beef» See Fork, Beef, Pitch, Tar, and
Turpentine,
Behaviour. See Surety.
BIGAMY.
BY the term Bigamy, is generally meant, in the Jaw, the
crime of marrying a fecond hufband or wife, the former
being alive: tho' in common acceptation, the word Polygamy
feems more expreffive cf the offence. This is made felony, by
the laws of this commonwealth, p. io$.fe£I. 14—which fee.
It hath been holden upon the Stat. 1 Ja. 1 Chap. 11. in
England which our aft of Affembly nearly follows, that in the
cafe of the hufband or wife living continually beyond the feas
for the fpace of feven years, which forms the firft exception in
the aft, the party is not deprived of the benefit of the exception
aven if they have notice that the other is alive. 1 H. H. 693.
But in the cafe of the hufband or wife being abfcnt in any
part of the United States of America, or elfcwhere for the fpace
cf feven years, ignorance of their fituation is made exprefsly ne-
ceffary by the above aft in order to entitle the party to the be-
nefit of the fecond exception. Id.
The age of confent, is twelve years in females, and fourteen
in males. 3 Inft. 89.
If either party be within age of confent, the benefit - of the
exception extends to both of them; for till they have both con-
fented firmly and obligatorily, either of them may re-eleft. 1
H. H. 694.
The firft and true wife may not be allowed as a witnef®
againft the hufband to prove the fecond marriage, but the fe-
cond wife may, for fhe is not legally his wife. 1 H. H. 693.
And fo vice verja of a firft and fecond hufband, 4 Blacks Com.
164.
(A) IndiBment for having two wives at one and
the fame time.
county to wit.
The jurors for the commonwealth upon their oath prefent,
That A O, late of the county of yeoman, on toe
day of in the year at the county or did marry
one A W, fpinfter, and her the find A VV, then and there had for
his wife} and that the faid A O, afterwards, to wit, on the
day
92
bigamy.
day of in the year with force and arms, at the faid
county ©f felonioufly did marry and take to wife one B
W, ipinfter, and to the faid B W, was then and there mar-
ried (the faid A W, his former wife being then living and in
full life) againft; the form of the .flatute in fuch cafe made and
provided, and againft the peace and dignity of the common-
wealth. * And the jurors aforefaid upon their oath aforefaid,
do further prefent, That the faid A O, afterwards, to wit, on
the day of in the year laft aforelaid, was appre-
hended and taken in the faid county of for the felony
aforefaid.
(BJ Indiftment for having two hujhands, at
one and the fame time„
county to wit.
The jurors for the commonwealth, upon their oath do prefent,
That Eliza bet hy the wife of A B, late of the county of
planter, on the day of in the year of our lord
being then married, and then the wife of the faid A B, with
force and arms, at the county of did felonioufly marry
and take to hufband C D, of (the faid A B, her huf-
band, being then alive) againft the form of the ftatute in fuch
cafe made and provided, and againft the peace and dignity of
the commonwealth. And the jurors aforefaid upon their oath
aforefaid do further prefent, That the faid Elizabeth heretofore,
to wit, on the day of in the year at the
county of by the name of Elizabeth C, did marry
the faid A B, and him the faid A B, then and there had for
her hufband j and that fhe the faid Elizabeth being married
and the wife of the faid A B, afterwards, to wit, on the
day of in the year with force and
arms, at the faid ccunty felonioufly did marry and take to her
hufband the faid C D, of (the faid A. B, her former huf-
band, being then alive) againft the form of the ftatute in fuch
cafe made ard provided, and againft the peace and dignity of
the commonwealth.
No te, In an indictment for bigamy a marriage in fa& muft
be proved, prefumption by cohabitation &c. is not fufficient,
Bur. 2057.
Blafphemy
* This part may be left out when the prijoner is taken when
tie felony commute J.
BLASPHEMY AND PR0FANENES3. 93
IT mud afford real pleafure to every friend to civil and religia
ous liberty to be informed that the a£ts which have hither-
to, by law, conftituted the crime of blafphemy, are now con-
fidered as mere fpeculative topics^ which every citizen is autho-
rifed freeiy to dilcufs 5 and that the feveral laws impofing fudi
fevere penalties on the offenders, which have difgraced the code
of almoft every civilized nation in Europe, and were implicitly
adopted in America, prior to the late revolution, are now en •
tirely dohe away by that bulwark of our religious rights, the
2<St 4 eflablijhing religious freedom'.—an which deferves to
be tranflated into every language in the world, and to be deeply
impreffed cn the mind of every citizen. The crime of Blaf-
fhemy then as it has been heretofore prefcribed by law no longer
exifts, and the other part of this title (Profanetiefs) which has ge-
nerally been coupled with it, will more properly be treated of
under title Swearing, which fee.
EREitD, See Flour.
BREAKING HOUSES, See Clergy ^Larceny*
BRIBERY, See Extortion,
buggery.
BUGGERY from the Italian Bugarwe, (the vice being Ciid
to have been firft introduced into England by the Lombards
from Italy) is defined bylosd Coke to be a detefrable and abomi-
nable fin amongft chriftians not to be named committed by carnal
knowledge againft the ordinance of the creator, and order of
nature, by mankind with mankind, or with brute heaft, or by
woman kind with brute beaff (3 Infl. 58)—and in fupport of the
Lft part of this definition, he mentions the cafe of a great lady
in England, who cohabited with a Baboon, and conceived by
it. See 3 Infl. 59.
The pundhment of buggery is death without benefit ofcler-
gy, by the laws of this commonwealth, p. 18S.
For the honor of human nature it muff be obferved that this
crime is feldom committed, Should a magiftrate, however^
have to a£t in his official character in fiich cafes, he may jra-
dily adept the precedents to be found under title Criminals, ob-
ferr. ing to defcribe the offence as in the following indictment,
Indictment for Buggery.
county to wit.
The jurors for the commonwealth upon their oath do prefer.i
that of the county cf aforefaid, labourer, not hav-
M. ing
94 BUGGERY.
ing the fear of God before his eyes, nor regarding the order of
nature, but being moved and feduced by the inftigation of the
devil, on the day of in the year of our lord
with force and arms, at the county aforefaid, in and upon *
one a youth about the age of years, then and there
being, felonioufly did make an affault, and then and there felo-
woufly, wickedly, diabolically, and againft the order of nature,
had a venereal affair with the faid and then and there car-
nally knew, the faid and then and there felonioufly wick-
edly, and diabolically, and againft the order of nature, with the
" faid did commit that deteftable and abominable crime of
buggery (not to be named amongft Chrijlians) to the great dif-
pleafure of Almighty God, to the great fcandal of all human
kind, againft the form of the ftatiite in fuch cafe made and pro-
vided, and againft the peace and dignity of the commonwealth.
BURGLARY.
I. What is Burglary.
II. How it is punijhed.
III. Precedents.
I. What is Burglary.
THE word Burglary is thought to have been brought into
England by the Saxons from Germany, in whofe language
burg fignifies a houfe, and larron a thief, probably from the
latin la fro.
Burglary is a felony at common law, in breaking and entering
the mahfion houfe of another, in the nighty with intent to commit
fojne felony within ■ the fame, whether the felonious intent be exe-
cuted or not. Hale's pi. 79.
Breaking. Every entrance into the houfe by a trefpaffer, is
not a breaking in this cafe, but there muft be an adtual break-
ing. A s if the door of a manfion houfe ftand open, and the
thief enter, this is not a breaking. So it is if the window of
the houfe be open, and a thief with a hook or other engine
draweth out fome of the goods of the owner, this is no burgla-
r), becaufe there is no actual breaking of the houfe. But if the
tfrkf breaketh the glafs of the window, and with a hook or other
engine draweth out fome of the 'goods of the owner, this is
buiglary, for there was an adtual breaking of the houfe. 3
lnjt. 64. And
* If for beftiality, fay, upon a certain mare^cowy &c. (as the
cafe may be) felonioufly, wickedly, diabolically, &c.
BURGLARY.
And the following a£ls amount to an a&ual breaking: open-
|ng the cafement or breaking the glafs window, picking open
the lock of a door, or putting back the lock, or the leaf of a
window, or unlatching the door that is only latched. I H. H.
At a meeting of the judges upon a fpecial verdidt in 'January
1690, they were divided upon the queflion, whether breaking
Open the door of a cupboard let into the wall of the houfe was
burglary or no. Upon which Mr. Fojier obferves, that with
yefpedt to cupboards, prefles, lockers, and other fixtures of the
like kind, it feemeth that in favour of life, a diftin&ion ought,
to be made between cafes relating to mere property, and fuch
wherein life is concerned. In queflions between the heir or de-
vifee and the executor, thofe fixtures may with propriety enough
be confidered as annexed to and parts of the freehold. The law
will prcfume, that it was the intention of the o vner, under,
whofe bounty the executor claims that they fhould be fo confi-
dered; to the end that the houfe might remain to thofe who by
operation of law, or by his bequeft, fhould become entitled to
it, in the fame plight he put it, or fhould leave it, intire and
undefaced. But in capital cafes, it feemeth, that fuch fixtures,
which merely fupply the place of chefts and other ordinary uten-
Tls of houfehold, fhould be confidered in no other light than as
mere moveables, partaking of the nature of thofe utenfils, 'and
adapted to the fame ufe. Foji. ic8, 9.
In the cafe of K. and Gray. One of the fervants, in the
houfe, opened his lady's chamber door (which was fattened
with a brafs bolt) with defign to commit a rape ; and it was
ruled to be burglary, and the defendant was convicted and tranf-
ported. Sir. 481.
The. cafe of Joflrma Cornwall, is confidered of great im-
portance, as it goes to fhew how far an a£t may be conftrued
into burglary which does not feetn" to tall exprefsly under the
definition given by lord Hale of thet offence. He was indidted
with another perfon for burglary. And upon the evidence it
appeared, that he was a fervant in the houfe where the robbery
was committed, and in the night time opened the.flreet door,
and let in the other prifoner, and fhewed him the fide-board,
fiom whence the other prifoner took the plate: and the defen-
dant opened tne door and let him out j but the defendant did not
go out with him, but went to bed. Upon the trial it was
doubted whether this was burglary in the fervant, he not going
out with the other. But afterwards at a meeting of all. the judges
at Sergeants lnny they unanimoufly agreed that it was burglary
in both, and not to be diftinguifhed from the cafe where one
watches
96 BURGLARY.
watches at the ftreet end, while the other goes in and commits
the burglary, which hath been often ruled to be burglary in
both: and upon report of this opinion the defendant was exe-
cuted. Str. 88J.
And entering'] It is deemed an entry when the thief break-
eth the houfe, and his body, or any part thereof, as his foot,
or his arm is within any part of the houfe; or when be putteth
a gun into a window which i?e hath broken, or into a hole of
the houle which he hath made, of intent to murder or kdl, this
is an entry and breaking cf the houfe: but if he doth barely
break the houfe, without any fuch entry at all, this is no bur-
glary. 3 Irjl. 64.
In the cafe of George Gibbons, at thtold Bailty in June 1752;
Gibbons was indidled for burglary in the dwelling houfe of John
Allen. It appeared in evidence, that the prifoner in the night
time cut a hole in the window fhutter of the profecutors fh'tp,
which was part of his dwelling houfe; and putting his hand
thro' the hole, took out watches and other things which hung
in the fhop within his reach: hut no entry was proved onervrfe
than by putting his hand thro1 the hole. This was held to be
burglary, and the prifoner was convidbed. Fojl. 107,8.
If divers come in the night to do a burglary, and one of them
break and enter, the reft of them (landing to watch, at a dif-
tance, it is burglary in all. 3 In/}. 64.
Fhe tnanfion boufc.] , This includes alfo a church: and Mr.
Hawkins fays, all out buildings, as barns, liable?, dairy houfes,
adjoining to a houfe, are looked upon as part thereof, and con-
{cquently burglary may be committed in them: But if they be
removed at any diftance from the houfe, it feems that it hath
not been ufual of late to proceed againft offences therein as bur-
glaries. 1 L. Hawk. 163.
Anh lord Hale fays more explicitly, the man ft on houfe doth
not only include the dwelling houfe, but alfo the out houfes that
are parcel thereof, as barn, liable, cow-hou ~e, dairy-houfe, if
fhey are parcel of the mefluage, the' they are not under the fame
roof, or joining contiguous to it; and fo he fays it was agreed
by all the judges; hut if they be no parcel of the meffunge, as
if a man take a leafe of a dwelling houfe from one and of a
barn ftc. from another; or if it be far remote fiom the dwel-
ling houfe, and not fo near to it, as to be realonably efteemed
parcel thereof, as if it ftand a bow fhet off from the houfe, and
not within or near the curtilage oi the chief houle; then the
breaking is not bu-glary, for it is not a manfion houfe, nor any
part thereof 1 H. H. 558, 9.
To break, and enter a Jbop, not parcel cf the manfion houfe,
in
BURGLARY. 97
in which the (hop-keeper never lodges, but only works or trades
there in the day time, is not burglary, but only larceny; but if
he or his fervant ufually, or often lodge in the (hop at night, it
is then a manflon houfe, in which burglary may be committed,
1 H. H. 557, 8
It is not neceflary to make it burglary, that any perfon be
adfually in the houfe, at the very time of the offence committed.
I Hawk, 164.
At Newgate feilions, in 'January 1750, John Nutbrown and
NJV.es Nutbroun, were indidled for burglary in the dwelling
houfe of one Mr. Fackney at Hackney, and dealing divers goods.
I appeared by Mr. Fackney's evidence, that he held this houfe
f r a term of years not yet expired, and made ufe of it as a
country houfe in fummer, his chief refidence being in London:
That about the latter end of the lad fummer, he removed with
his whole family to the city, and brought away a confiderable
part of his goods: That in November lad bis houfe was broke
open and in part rifled; upon which he removed the remainder
el his h ufehold furniture, except a clock, and a few old bed-
(reads, and fome lumber of very little value; leavifig no bed,
or kitchen furniture,1 or any thing elfe for the accommodation of
a family. Mr. Fackney being alked whether at the time he fo
disfurnifhed his houfe he had any intention of returning to re-
fide there, declared that he had not come to any fettled refoluti-
on whether to return or notj- but was rather inclined totally to
quit the houfe and to let it for the remainder of his term. The
fadt with which the priloners were charged was fufficiently prov-
ed; and was committed about mid-night the firft of January
bft. The court was of opinion that the profecutor having left
his houfe, and disfurnifhed it in the manner before mentioned,
without any fettled refolution of returning, but rather inclining
to the contrary, it could not under thefe circumftauces be con-
fidered his dwelling houfe at the time the faff was committed,
and accordingly diredted the jury to acquit the prifoners of the
burglar}^, which they did, but found them guilty of felony in
dealing the clock, and fome other fmall matters. And they
were ordered for tranfportatioii—And the diftindtion is this:
Where the owner quiteth the houfe, with an intention of return-
ingf it may ftiil be confldered as his manfion houfe, tho' no
perfon be left in it; many citizens and fome lawyers do fo from
a principle of good hufbandry, in the fummer, or for a i ">ng va-
cation But there muft be an intention of returning, otherwife
it will be no burglary. Fof, 76. 77.
In
*. Anim r?vertendi.
93 BURGLARY.
fn the night. 1 Lord Coke fays, as long as the day continues,
whereby a man's countenance may be difcerned, it is called day;
and when darkncff comes and day light is paft, fo as by the
light of day, you cannot difcern the countenance of a man, then
it is called night. And this doth aggravate the offence; fince
the night is the time when man is at reft, and when beafts run
about feeking their prey. Hence in ancient records, the twy-
light was fignified, when it was faid, inter canem et lupum^,
(between the dog and the w@lf;) for when the night begins the
dog fieeps, and the wolf feeketh his prey, 3 lnji. 63. See 4
Black's Com. 224.
An rndi&ment was held infufficient for burglary, which
flared the fadt to have been committed' in the night, without
expreffing the particular hour, and the prifoner was found guilty
of llmple felony only. K. and Waddington, at the LancafLr
lent afiizes. 1771.
With intent to commit felony.'] There can be no burglary,
but where the indictment both exprefsly alledges, and the vtr-
diet ado finds, an intention to commit forne felony; for if it
appear that trie party only intended to commit fome trefpafs as
to beat the party or the like, he is not guilty of burglary. I
Hank. 164.
However it feems the much better opinion, that an intention
to commit a rape or other fuch crime, which is made felony by
fta'.ute, and was only a trefpafs at common law, will make a
r an guilty of burglary, as much as if fuch offence was a felo-
ny at common 'aw; becaufe wherever a ftatute makes any of-
fence felony, it incidently gives it all the properties of a felony
at common law. 1 Hawk. 164.
JTbether the felonious intent be executed or not.'] Thus they
are burglars, who break any houfe or church in the night with
intent to commit a fe'ony, whether they take any thing away or
not. And heiein this offence differs from robbery, which re-
quires that fomething be taken, tho' it is not material of what
value.
Where a man commits burglary and at the fame time fteals
goods out of the houfe, it is alfo larceny ; and if he be acquitted
of the burglary, he may notwithftanding be indicted of the lar-
ceny; for they are feveral offences, tho' committed at the fame
time. And burglary rpay be where there is no larceny, and
larceny may be where there is no burglary. 2 H. H. 246.
See 1 L. Hawk. 164, in notes.
II. How it is punijhed.
Burglary is one of the offences in which the benefit of clergy
is
BURGLARY.
is not allowed by Virginia laws p. 50, either to principals in
the firft or fecond degree, or to aecciibries before the fact.
But acceffories after the fadt, in burglary, are admitted to
their clergy.. 2 H. H, 364.
III. Precedents.
(A) Warrant to apprehend a Burglar.
county to wit.
To the conftable of
jyhereas A-J, of the county of aforefaid, merchant, hath
this day made information and complaint upon oath before me j p,
one of the commonwealth* s jujlices of the peace for the faid county,
that on the day of in the night, the dwelling houfe
of him the faid A J, at the county afoiejaid, was fehnio'fiy and
burglarioufy broken open, and one gold watch of the value of one
hundred dollars, of the goods and chattels of him the faid a j, fe-
lonioufy and burglarioufy folen, taken and carried aiuay from
thence, and that he hath jujl caufe to fufpecl, and doth fufpebt thai
A O, of in the county of labourer, the ful l felony
and burglary did commit. Thefe are therefore, in the name of the
commonwealth to command and require you, that immediately upon
fight hereof you do apprehend the faid A O, and bring him be-
fore me, or fome other jujlice of the peace for this county, to an-
fwer the premijes, and to be further dealt with according to law*
Herein fail not. Given under my hand and fal &c.
If the perfon charged upon oath with the burglary, is not
well and certainly known, it is ufual in the warrant 'to Kifert a
claufe directing purfuit by hue and cry; this may come in after
the words, 4 to command and require you,' thus, and each of yen,
to fearch diligently for the faid A O, within your fever clprecir.ch,
and likewife to make hue and cry after him, from town to town,
and from county to county, as ivell by horfemen as footmen; and if
you jhallfind the faid A O, that then you apprehend him, and
carry him before fome j if ice of the peace for the county here he
Jhall be taken, and there deliver him together with this vjarrant.
The faid A O, is a perfon [here defcribe his ftature, age, appa-
rel &c. particularly,]
The juftice before whom the fufpedfed p^rty '13 brought, m ;y
fummon witneiTes to give evidence ajgairuT: him if he finds it
neceilary.
<B)
JOO BURGLARY.
fBj Summon for a witnefs.
To AC, or any other confUble of ' county,
county to wit.
You are hereby commanded, in the name of the commonwealth,
to fummon A W, to come before me at in this county, to-
morrow by o'clock in the forenoon, to tejiify and the truth to
Jay concerning a certain burglary and felony, fufpefied to he done
by A O, of &c, and that you then and there attend with this
warranty to jhew how you have executed the fame. Given under
my hand &c.
If upon the examination of the felon and the witnefles it
fhould appear proper to the jultice to call a court for the further
examination of the criminal, he fhould take the recognizance of
the witnefles, to appear at fuch court, and commit the offender
to jail.
For the form of the recognizance fee title Criminals.
(C) Mittimus.
To the fherifFof county, or to the keeper of the jail
of the faid county.
county to wit.
Thefe are to command and require you in the name of the com*
monwealthy to receive into your jail the'body of A O, late of the
county of labourcry taken and broug *>/ before me for felony
and burglary by him committedy in breaking and entering the dwel-
4 ling boufe (or if any other houfe, defcribe the kind particular!)')
of A J, of the county of merchanty on the day if
in the night timey at o'clock of the faid nighty andfe-
Ionianfiy taking and carrying away from thence, one gold watch of
the value of one hundred dollar Sy of the goods and chattels of him the
faid A J, in the faid awelling houfey then and there beingy where-
with the jaid A O, Jlands charged before mey (ory and the faid
A O, having before me confefled the fame) ycu are hereby com-
manucd to keep the faid A O, fafely in your jail and cujhdy, with-
out bail or mainprizey until he jhall thence be difcharged by due
coufe of law. Given under my hand andfeal
(D) Indi&mcnt for proper Burglary.
county to wit.
The jurors for the commonwealth upon their oath doprefent that
A O, lute of the county of aforefaid labourer? on the
day
BURGLARY. idi
day of in the year at the hour of one in the night of
the fame day, iui,h force and arms, at the county aforefaid, the
dwelling ho life of A J, felonioufy and burglarioujly did break and
enter, with intent him the [aid A J. of his goods in the fame dweU
ling houfe then being, felonioufy and burglarioufy to fpoil and rob,
and the fame goods felonioufy and birglarioufy to peal, take and
carry away; againjl the peace and dignity of the commonwealth.
As it is difficult to eftablifh an intention to commit a felony
without proof of fome adtual felonious deed* the foregoing pre*-
cedent is feldom ufed.—The following one will be found mora
generally ufeful.
(E) Indictment for burglary and larceny,
county to wit.
The jurors for the commonwealth, upon their oath do prefent,
that A Q, late of the county of aforefaid, labourer, on the
day of in the year between the hours of tea
and elevert in the night of the fame day, with force and arms at
the county aforefaid, the dwelling houfe of A J, felonioufy end
burglarioujly did break and enter, and one gold watch of the va-
lue of one hundred dollars in the fame dwelling bouje then and
there felonioufy and burglarioufy did fteal, take and carry away
againjl the peace and dignity of the commonwealth.
BURNING.
I. Of burning houfes confidered as offences
againjl the laws of this commonwealthI
II, Of arfon or burning at the common laws,
III Precedents.
I, Of burning houfes, confidefed as offences
again ft the laws of this commonwealth.
BY V. L page 4 All and every perfon, and perfons^
4 that fhall at any tirrie either in the night ov the day, mu-
1 licioufly, unlawfully and willingly^ burn a^y houfe or houfes
* whatfoever, or fhali comfort, aid, abet, aifift, counfel, hire,
4 oi command, any perfon or perfons to commit any of the laid
* offences, being thereof ccnvidted or attainted, or being m-
4 didfed >
Ni
io i BURNING.
* dialed thereof, (hall (land mute, or will not anfwer dire&Iy
4 to the indi&ment, or. (hall peremptorily challenge, above the
4 number of twenty perfons returned to be of the jury, (hall be
4 adjudged a felon, and (hall fuffer death as in cafe of felony;
4 and (hall not have the benefit of his, her, or their clergy/
And by V. L p. 50. the benefit of clergy (hall not be allowed
t® thofe guilty, 4 of the wilful burning of any court-houfe, or
4 county or public prifon, or of the oifice of the clerk of any
5 court within this commonwealth.
II. Of arfon or burning at the common taw.
Malicioufy and voluntarily burning the houfe of another by
night, or by day, is felony by the common law. 1 Hawk. 165.
Malicioufy and voluntarily.] For if it be done by mifchance
or negligence, it is no felony. 3 Infl. 67.
Yet if a man malicioufly intending only to burn one perfons
fioufe, happens thereby to burn the houfe of another, it is cer-
fain that he may be indi&ed as having malicioufly burned the
houfe of that other j for where a felonious defign againft one
man, miffeth its aim, and takes effedl upon another, it (hall
have the like conftrudtion, as if it had been levelled againft him
Who fuffers by it. 1 Hawk. 167.
Burning.] Neither a bare intention to burn a houfe, nor
even an adtual attempt to do it by putting fire £0 a part of a
houfe, will amount to felony, if no part of it be burned; but if
any part of the houfe be burnt, the offender is guilty of felony,
notwithftanding the fire afterwards be put out, or go out of it^
felf. 1 Hawk. 167.
The houje.] Not only a rtianfion houfe, and the principal
parts thereof, but alfo any other houfe, and the out buildings,
as barns and (tables adjoining thereto; and alfo barns full of
corn, whether they be adjoining to any houfe ©r not, are fo far
fecured by law, that the malicious burning of them is felony at
common law. 1 Hawk. 165.
Of another.] Mr. Hawkins fays. A perfon feized in fee, or
but poffeiled for years, of a houfe (landing by itfeif at a diftance
from all others, cannot commit felony in burning the fame!
Alfo that it feems the much (tronger opinion, that a man fo
(cijied or poffefled of a houfe in a town, who burns his own with
an intent to burn his neighbour's, but in the event burns his
own only, is not guilty of felony; but however it is certainly
an offence highly punifhable, in regard of the malice thereof,
and the great danger to the public which attends it; and the of-
fender
BURNING. 103
fender may be ieverely fined, and imprifoned, and fet on the
pillory, and bound to his good behaviour. 1 Hawk. 166.
See Holme's cafe. Cro. Charles 37^> a^ove point.
See alio the cafe of Elizabeth Harris, Fofter's crown law. p.
I13. 349.
' The benefit of clergy is taken away from principals in the
firft and fecond degree, and from acceflfories before the fa<St, for
\ArJon at the common law /. />. 5°«
III. Precedents.
f A) Warrant for burning a houfe.
Tf. all conJlableSy and othery the commonwealth's officers of
the county of
county to wit.
Whereas A J, of the county of aforefaid merchant,
bath this day made complaint, upon oath, to me J P, one of
the commonwealth's juftices of the peace for the county afore-
faid, that on the ' ' day of a houle, viz. (defcribe the
kind) belonging to him the (aid, A J, and in his pofleflion was
wilfully and malicioufly fet on fire, and burnt, and that he hath
juft caufe to fufpedt, and doth fufpedt that A O, of the county
aforefaid, labourer," did felonioufly, voluntarily and malicioufly
burn the faid houfe; "I hefe are therefore, in the name of the
commonwealth to require you immediately to apprehend the faid
A O, and to bring him before me, or fome other juftice of the
peace for the faid county,' to be examined concerning the pre-
mifes, wherewith he is fiifpe&ed. Given voider my hand and
feal &c. ' ' * -
For other precedents fee title Criminals,
(B J Indictment for wilfully burning a houfe.
county to wit.
The jurors for the commonwealth, upon their, oath do, pre-
fent that' A O, late of the county of aforefaid, labourer,
not having the fear of God before his eyes, but being moved'
and feduced by the inftigation of the devil, on the * day of
in the year about the hour of ' in the nighty
cf the fame day, with force and arms, at the county aforefaid,"
a certain houfe, * called (defcribe the kind) of one A J, there
fituate, felonioufly, voluntarily an,d malicioufly did fei fire to,
and the fame houfe then and there, by fuch firing as aforefaid,
felonioufly,
* Sufficient without faying dwelling houfe, 1 Hawk. 16b,
io4 BURNING.
{plonioufiy, voluntarily and maliciotifly did burn, and con fume,
againft the form of the lbatute in fuch cafe made and provided,
and agaisil the peace and dignity of the commonwealth.
BUYING of TITLES.
I. By the common law.
II. By Jlatute.
I. By the common law,
IT fe<=ms to be a high ofFence at common law, to buy or fell
any doubtful title to lands known to be difputed, to the in-
rent that the buyer may carry on the fait, which the feller doth
not think it worth his while to do, and on that confideration
fells hi? pre ten fi oris at an under rate; and it feems not to be
material whether the title fo fold be a good or bad one, or whe-
ther the feder were in pofFeffion or not, uniefs his pofFtiFnai
were lawful and uncontefled, for all practices of this kind arc
by all means to be difcountenanced, as maniftfliy tending to
©ppredion, by giving opportunities to great men to purcbTe
the difputed titles of others, to the great grievance of the adverle
parties, who may often be unable or difcouraged to defend their
ftles againft fuch powerful perfons, which perhaps they might
fafcly enough, maintain agamft their proper auveriary. I Hawk:
553'
II. By Jlatute.
By V. I. p. 40. 4 No perfon fhah' convey or take, or bar-
$ gain to convey or take, any pretended title to any lands or te-
1 ncmenfs, uniefs the ptnfon conveying or bargaining to convey,
4 or thofe under whom he claims, fhull have been in pofFeffion
^ of ■the fa ne, or of the reverfiaa. or remainder thereof, one
* whole year next befoiej ~and he who ofFendeth herein know-
* ingly, fh 13 foifi.it the whole value of the lands or tenements;
6 rhe one moiety to the commonwealth,, and the other to him
c who wh! fue as v:e 1 for bimfelfas for the commonwealth : But
* any pttfon lawfully pofefied of lands or tenements, or of the
* revet hon or rem; inber theicof, may nevertheless take, or bar-
* gain to tike the pretended title of any other perfon, 1b far and
4 fo f;. r only, as it may confirm his former cHate.'
See a declaration for buying a pretended title—Flowden 78.
So. Fart-ridge v. Strange and Crocker.
Carriers
CARRIERS. 105
THE term Carrier is feldom ufed in common converfation;
but in its legal acceptation it comprehends all perfons car-
rying goods fir hire, as matters and owners .of fhip% lighter-
men, ftage coachmen, and in our phrafe waggoners, and the
like, who are chargeable on the general cuftora of the country
for their faults or milcariiages* 1 Bac, Abr. 34.3. Bullers n'ifi
frius 67.
A carrier fnall not evade the law, by refufing to carry goods
at the prices limited. For if a common carrier, who is offered
his hire, and who hath convenience, refufes to carry goods, he
is liable to an action in the fame manner as an innkeeper who
refufes to entertain a gueft, or a fmith who refufes to fhoe a
horfe. 1 Bac. Abr. 344.
So an acttion wi'l lie againft a common ferryman, who re-
fufeth to carry paffengers. Id.
But it the porter puts up the box of a paffenger behind a ftage
coach, and the matter as foon as he knows of it fays, he is al-
ready full, and refufes to take the charge of it, the matter flhall
not be liable. For this is the fame with an bo ft who refufeth
hi» guift, his houfe being full, and yet the party fays he will
fliift, or the like, if he be robbed, the hoft is difcharged. Id.
So a carrier may refufe to admit goods into his warehoufe at
an unfeafonable time, or before he is ready to take his journey;
but he cannct refufe to do the duty incumbent upon him by vir-
tue of his publick employment. L. Ray?n. 652.
It hath been holden that a carrier imbezelling goods which
he has received to carry to a certain place, is not guilty of fe-
lony, becaufe there was not a felonious takings butjs liable only
to a civil atttion. 1 Haw. 89, 90.
But it hath been rcfolved, that if a carrier open a pack, and
take out part of the goods, with intent to tteal it, he may be
guilty of felony; in which cafe it may be faid, not only that
fuch poffeftion of 3 part diftinbt from the whole, was gained by
wrong, and not delivered by the owner; but alfo that it was
obtained baftly, fraudulently, and clandeftinely, in hopes to
prevent it being difcovered at all, or fixed upon any one when
difcovered. 1 Haw. 90.
Alfo it feems clear, that if a carrier, after he has brought the
goods to the place appointed, take them away fecretly, with
intent to tteal them, he is guilty of felony; becaufe the pofiefti-
on, which he received from the owner, being determined, his
fccond taking is in all refpedts the fame, as if he were a mere
ttranger. 1 Haw, 90.
Alio it hath been refolved, if goods be delivered to a carrier,
to be carried to a certain place, and he carries them to another
place,
io6 CARRIERS.
place, and dlfpofeth them to his own life, that this is felony;,
becaufe this drclareth that his intention originally was not to
take the goods, upon the agreement and contra£t of the party,
but only with a defign of Healing them. Kelynge. 82.
Where goods are delivered to a carrier, and- he is robbed of
them, he fhall be charged, and anfwer for them, by reafon of
the hire: and this was at the common law, before the hundred
was anfwerable for him j becaufe fuch robbery might be, by
confent and combination, carried on in fuch a manner, that no
proof could be had of it. 1 Salk, 143.
And altho" it may be thought a hard cafe, that a poor carrie?
who is robbed on the road, without any manner of default in
him, fhould be anfiverabie for all the goods he takes; yet the
inconvenience would be far more intolerable, if he were not fo,
for it would be in his power to combine with robbers, or to-
pretend a robbery, or fome other accident, without a poflibility'
cf remedy to the party 5 and the law will not expofe him tofo
great a temptation, but he rnuft be honed: at his peril. 12 Modi
482.
And generally, if a man delivers goods to a common carrier,
to carry to a certain place: if he lofes or damages them, an ac-
tion upon the cafe lies againft him : for by the cuftom of the
country he ought to carry them fafelv. 1 Bac, Abr, 343. And
if he be a common carrier tho' there be no agreement, or rate
fettled, or promife of payment; yet he fhall recover his hire on
a quantum meruit, and therefore fhall be liable for lofs and da-
mages. Id.
Alfo if a perfon, who is no common carrier, takes upon him-
felf to carry my goods, tho' I promife him no reward, yet if
my goods are loft or damaged by his default, I fhall have an
zBtxon againft him. Id,
For the very taking of the goods is a general confideration,
tho'he be not a common carrier: and the acceptance of the
goods makes him liable. Show, 104.
M. 11. G. 3. Davis and James, On an aflion againft a
common carrier, the queftion was, In whofe name the adiion
ought to have been brought. The declaration charged, that
the plaintiff being poffeffed of cloth, as of his own proper goods,
delivered the fame to the defendant to be carried to London and
delivered to a certain perfon there. The goods were loft, and
the plaintiff obtained a verdieft againft the carrier. It was mov-
ed for a new trial, 011 the objection, that the adtion ought to
have been brought in the name of the perfon to whom the goods
were configned, and not in the .name of the confignor. For
the confignor parted with his property upon his delivering the
CARRIERS. 107
goods to the carrier, and no property remained in him after the
delivery. Upon this it was anfwered, that the queftion doth
not turn upon the ftri£t property. The carrier has nothing to
do with the vefting of the property. It does not lie in his
mouth to fay, that the confignor is not the owner. He is the
owner with refpe£l to the carrier, who undertook to him, and
Was to be paid by him.—Lord Mansfield faid there was neither
law nor confcience in the obje&ion. The veiling of the pro-
perty may differ according to the circumftances of cafes: But
it does not enter into the prefent queftion. This is an a£tion
iipon the agreement between the plaintiff and the carrier. The
plaintiff was to pay him. Therefore the action is properly
brought by the plaintiff who agreed with him, and was to pay
him. Bur. Mamf. 2680.—See alfo i Term. Rep. 659.
A delivery to the carrier's fervant, is a delivery to the carrier;
and if goods are delivered to a carrier's porter, and loft, an ac-
lion will lie againft the carrier. Read. Car.
At Bury affizes, 1732, in the dale of Harvey agaift Syliard
and his wife 5 the plaintiff brought his action againft Syliard
and Lis wife, for a box with Sol. in it, which was delivered to
her as book-keeper for her brother, who was a carrier, in order
to be fentby the waggoner to London; which llol. was after-
wards loft: It was adjudged that the action would not lie
againft her, but it ought to have been brought againft the bro-
ther himfelf and the plaintiff was nonfuited. 2 Barnard. 234.
If a box is delivered generally to a carrier, and he accepts it;
he is anfwe able, tho' the party did not tell irim there is money
in it. But if the carrier afks, and the other fujs *110, or if he
excepts it conditionally, provided there is no money in it, in
Cither cf thele cafes the carrier is not liable. Sir. 1^.5.
If a man delivers a box to a, carrier to carry, and he afks
What is in it, and tire man tells him, a book and tobacco (as
the cafe was) and in truth there is 100I. befides; yet if the
carrier is robbed, he mail anfwer for the money; for the other
was not bound to tell him, all the particulars cf the be\, and
it was the bufinefs of the carrier to have made a fpccial accep-
tance. 1 Bac. Abr. 3^5,
But if a perfcn, being a common carrier, receives by his
book-keeper from another man's fervant, two bags of money
fealed up, containing as was told him 200!. and the book-kee-
per gives a receipt for his mafier to this effect, received of fuch
a one two bags of money fealed up, faid to contain 20g1. which
I promife to deliver on fuch a day at fuch a place, unto fuch a
perfon, he to pay 10s. per cent, for carriage and iifque; tho'
the bags contain 400I, and the carrier is robbed, he fhall be an-
fwerable
io8 C A R 11 I E R. S.
fwerahle only for 200I. for this is a particular undertaking; and
as it is by reafon of the reward that the carrier is liable when
the plaintiff endeavours to defraud him of it, it is but reafonable
he fhould be barred of the remedy, which is only founded on
the reward. 1 Bac. Abr. 346.
A man took a place in a ftage coach, and in the journey the
defendant by negligence loft the plaintiffs trunk: upon not guil-
ty pleaded, the evidence was, that the plaintiff gave the trunk
to the man that drove the coach, who promifed to take care of
it, but loft it: Holt chief juftice held, that the mafter was not
chargeable, and that a ftage coach-man is not within the cuf-
torn as a carrier is, unlefs the mafter make a diftindl price for
the carriage of the goods as well as of the perfons, I Salk,
282.
But by the cuftom and ufuage of ftage coaches, every paf-
fenger ufes to pay for the carriage of goods above fuch a weight;
and in fuch cafe the coachman ihall be charged for the lofs of
goods beyond fuch weight. Comyn. 2$.
In the cafe of Gibbon and Payntony E. g G. 3. An a&ion
was brought againft the Birmingham ftage coach-man, for
igoI. in money, fent from Birmingham to London bv his coach,
and loft. It was hid in hay, in an old nail-bag. The bag and
the hay arrived fafe; but the money was gone. The coach-
man had inferted an advertifement in a Birmingham news pa-
per, with a nota beney that the coach-man would not be anfwer-
able for money or jewels, or other valuable goods, unlefs he
had notice that it was money or jewels or other valuable goods
that was delivered to him to be carried. He had alfo diftribut-
ed hand bills, of the fame import.
It was notorious in that country, that the price of carrying
money from Birmingham to London was three pence in the
pound. The plaintiff was a dealer at Birmingham; and fie-
quently fent goods from thence. It was proved that he had been
ufed, fur a year and an half, to read the news paper in which
ibis advertifement was published; though it could not be proved
that lie had ever adlually read or feen the individual paper with-
in which it was inferted. A letter of the plaint IPs was alfo
produced, from whence it appeared that he knew the courfe of
this trade, and tnat money was not carried from that place to
London at the common and ordinary price of ttie carriage of other
gouP. And thejur) found a verdidt for the defendant. On
behalf of the puiintiff, it was moved for a new trial; and a rule
was obtumed to ihew caufe. On thewing caufe, the court
were of opinion that the verdidl was right. By the general cuf-
fom of the realm, a common carrier infurts the goods, at all
events,
CARRIERS. 109
events. And it is right and reafonable that he fhould do fo.
But he may make a fpecial contract; or he may rcfufe to con-
tradf, in extraordinary cafes, but upon extraordinary terms.
And certainly, the party undertaking ought to be apprized what
it is that he undertakes: and then he will, or at leaft may, take
proper care. But he ought not to be anfwerable where he is
deceived. Here he was deceived: The money was hid in an
old nail-bag; and it was concealed from him, that it was mo-
ney. The true principle of a carrier's being aniwerable, is the
reward. And a higher price ought in conference to be paid hiin
for the infurance of money and other valuable things; than for
infuring common goods of fmall value.—And the rule was dif-
charged. Burrow. Mansf. 2298.
Where goods are ftolen from the carrier, he may prefer an
indi&ment againft the felon, as for his own goods; for tho'he
has not the abfclute property, yet he has fuch a poileflory pro-
perty, that he may maintain an ablion of trefpafs againft any
one who takes them from him, and fo may Indict a thie£ for
taking them; and the indidtment were good alfo, if it had been
brought by the real owner. Kelyrtge. 39.
And there is a fpecial cafe, wherein it is faid, that a man may
commit larceny by ftealing his own goods delivered to, the car-
rier, with an intent to make him anfwer for thern; for the car-
rier had a fpecial kind of property in the goods, in refpedt there-
of, if a ftranger had ftolen them, he might have been indidted
generally as having ftolen the faid carrier's goods, and the in-
jury is altogether as great, and the fraud as bafe, where they are
taken away by the very owner. 1 Haw. 94.
In an adtion of trover againft a common carrier, for goods
delivered to him to carry ; on not guilty pleaded, the defendant
gave in evidence, that he offered to deliver the goods to the
plaintiff, if he would pay him his hire; but that the plaintiff re-
fufed, and therefore he retained them. And it was ruled by-
Holt chief juftice, that a carrier may retain the goods for h;s
hire. And by his dirediiou a veididt was given for the defen-
dant. L. Ray in. 752.
And even if the goods be ftolen good?, yet the right owner
fnall not have them without paying for the carriage-. For the
carrier being obliged to receive and carry the goods, the law
will not deprive him of the remedy for the reward due for the
carriage. Ibid. 166»
By the general cuftom of the country, the common carrier
infures the goods at all events; but he may nuice a ipecial con-
tracl, in extraordinary cafes, 011 extraordinary terms. 4 Burr.
2302. 1 Term. Rep, 33.
O. A
iio CARRIERS.
A fhip-mafter who undertakes to carry goeds fafe, mufl cfe*
liver them fo, unlefs damaged by the a# of God, or the ene-
mies of the commonwealth} and in anatftion, the p]aintiff need
only prove their good order when delivered on board, and their
being damaged when delivered out, evidence will not be allowed
to Ihew that the defendant was careful, I Wils. 2Si.
But the matter of a hoy fnall not be chargeable for goods loft
or damaged by tempeft. Str. 128.
A carrier who undertakes for hire to carry goods, is bound
to delivr them at all events, except damaged or deftroyed by
the a# of God, or the commonwealth's enemies; even tho' the
jury expreftly find, that the goods were deftroyed without any
actual negligence in the carrier. 1 Term. Rep. 27,
And an a#ion lies againft the executor or adminiftrator of a
carrier; for it is founded upon the contra#. 5 Mod. 92.
CATTLE.
THE regulations prefcribed by law for driving cattle thro'
this ftate, may be found in the Revifed Code (printed in
1794) PaSe 2^5* 7> 8.—which book being in the hands
of every magiftrate, it will be unneceftary to infert the law, in
this place: The following forms, it is prefumed will fuffice.
f Hj Warrant to two freeholders to view the cat-
tie previoujly to granting a bill of health.
county to wit.
To A F, and B F, two freeholders of the faid county.
Whereas A D, hath -this day, according to aCl of Ajfembly,
made application to me J P, one of the commonwealth's juftices of
the peace for the county aforefiid, for the purpfe of obtaining a
bill of health for head of nett cattle, driven by him into this
commonwealth from the fate of N orth- Carolina, and now at
in this county; a defcriptian of which cattle is hereto annexed:
Tbtje are therefore in the name of the commonwealth, to require
you immediately upon the receipt hereof to repair to the faid
and to examine into the health a <d condition of the faid cattle, and
forthwith make report thereof to me, or fome other juf ice of the
peace for this county. Herein fail not. Given under my hand
this day of in the year
jp-
I have
CATTLE. in
I have thought it moil proper to draw the warrant annexing
to it a defcription of the cattle, becaufe the magiftrate is required
to fign the bill of health, defcribing the cattle particularly, but
Slot until two freeholders have reported them to be found,—
which is all they are required to do.
(BJ Defcription of head of catth hrought
into this fate from North-Carolina, by AD,
and refered to in the foregoing warrant.
Bulls marked &c.
Steers marked See.
Cows marked See.
Heifers marked Sec,
fCj Report of the freeholders.
county to wit,
Purfuant to a warrant to us dire&ed by J P, a juflice of the
peace for the (aid county, we have this day examined into the
health and condition of ' head of cattle, fhewn to us by
A D, and anfwering to the defcription annexed to the faid war-
rant, and do find them to be free from all kinds of contagious
dillemper. Given under our hands See,
' ' A. F.
B. E.
(D J Bill of health.'
county to wit.
J J P, a jujlice of the peace for the faid county, do hereby cer-
tify that the health and condition of head of cattle driven by,
A D, from theJlate of North-Carolina, a defcription of which
Jaid catt e is hereto annexed, have in obedience to my warrant,
_ and according to law, been examined into by two freeholders of this
countyj and the faid freeholders have reported to me that the J aid
cattle are, free from al kinds of contagious ai (tempers. Given
under my hand and Seal lac,
J. P-
(E) Warrant againil a freeholder refilling to adt.
To conilable.
county to wit.
Whereas complaint &c, by AD, a driver of cattle il/ru this
county, that. A F, a freeholder of the faid county, to whom my
warrant hath been directed, for the purpefe of examining into lba
health of the faid cattle5 doth altogether refufe to obey the faid war-
ronty
lis CATTLE.
ranfy contrary to the aft of fljjembly in that caf made and pn-*
vidtd: Thcfc are therefore (Sc.
Penalty for not ailing, any fum not exceeding 5 dollars.
fFj Warrant for flaughtering the cattle where
they are reported diflempered,' and the driver
refufes to impound them, or Puffers them
to efcape, before a jaftice certifies that
they may be removed with fafety.
county to wit.
Whereas it appears to me J P, one of the commonwealth's juf-
ticcs of the peace for the county aferf aid, from the report of A F,
and B F, two freeholders rf the fa id county, to whom ?ny warrant
was dire ft ed) for the purpoje of examining into the health and con*
dition of head of cattle driven into this county from the fate
of Na th ■ Caroline.^ by A D, (a defcaption f which cattle is
hereto annexed) that theJaid cattle are infifted with a contagious
Ufcmperi and that the jaid A D, refufes to impound the jaid
cattle (or, hath fuffc.red them to efcape without having fir ft ob-
tamed a ccrtifcat "from fonie jitjhee of the peace for this counts,
thai they may be removed without annoying ethersy as the cafe
mav be.) Thefe are therefore in the name of the commonwealth
to reauir e you, immediately to kill all the cattle in the jaid drove,
and to bury the carcafcs with the hides on, at leaf fur led detp,
but Jo cut■ or mangled, that none may be tempt d to tuke them up
and fay them. 'Herein fail not, Given under ?ny hand and ft, J
this day of in the year ■ <
To A B, B B, C B, See, to execute,
Fee 83 cents each head of cattle, to be .paid by the county,
Warrant againft a perfon refilling to
execute the foregoing warrant.
To conflable.
countv to wit.
'Whereas complaint (Sc. that A B, one of the pet fens to whom
my warrant was direfted, for the purpoje of faugbtering
head of cattle driven into this county by A D, from the jlaie of
In orth- Carolina, (x^'.neh were reported to me to be irfefted with
a contagious dlftemper by A F, ai.d B F, two freeholders appoint-
ed by me, to viav the jaid cattle) hath altogether refufed to exe-
cute the fad Thefe cue the fore to require you bV. to
flTKUlCil cF,v
GJ
CATTLE. 113
{HJ Licence of a magiftrate to remove cattle
impounded in confequence of their hav-
ing been diftempered.
county to wit.
Whereas head of cattle driven into this county by A D,
from the jlate of North Carolina, have been impounded by the Jaid
A D, from the day of lafl pajl, in confequence of a
report having been made to me by A F, and B F, two freeholders
of this county appointed to view the faid cattle; that the faid cattle
were infedied wi h a contagious dijlemper; and it appearing to me
fromfiti'sfahiory information that the faid cattle may now be re-
moved without annoying others'. Thefe are therefore to authorize
the faid A I), to proceed on his journey with the jaid cattle, fub-
jad only to fuch regulations as may be further impofed by law.
Given under my hand and j'cal Cfc.
flj Certificate of a magiftrate to be made on
the back of the drivei's manifeft.
county to wit.
J J P, a juftice of the peace for the county aforefaid, in the
commonwealth of Virginia, do hereby certify that AD, «/ the
county of in theJlate <?/" North-Carolina, did this day pro-
duce to me bills of jdle for the within mentioned cattle according to
law; and did moreover take an oath before me, that he knew of
no more cattle in his drove than thofe contained in the within ma-
n jtjf and bills of fak, Given under my hand andfeal &c.
(JJ Warrant againfl a driver for failing to
! • * produce a manifefL
To the fjtrijjy or any conflable of the county of
county to wit.
Whereas complaint hath this day been made before me J P,
one of the commonwealth's juftices of the peace for the faid
CoUnty, by A J, that A D, hath brought into this county, from
the ftate of North- Carolina, a drove of nett cattle and hath
failed to produce to the next juftice of the county in this ftate,
a manifeft, and bills of fale for the faid cattle, and to take the
oath preferibed bylaw: Thefe are therefore, in the name of
the commonwealth, to authorize and require you to raife fufti-
cient force within the faid ccunty, to fcize and detain the faid
drove of cattle. And 1 do further hereby require you, to bring
the faid A D, before me or fotne other juftice cf the peace for
U4 C A T T J, E.
this county, to anfwer the' premifes. Herein fail not at yen?
peril; and make return how you have executed this warrant.
Given under n y hand and feal fee.
If the catle c.re brought into any county in this ftate, to be car-
ried into any other ftate,—for neg'ect to produce a rnanifeft &c.
fay; hath brought head of nett cattle into this commomvealth, in
order to be driven into the fate of Alary land, and hath failed to
produce to the next jujiice of the county wherein they were brought
the. '
(K) Judgment.
On hearing the matter of the within complaint, it is adjudged
that the drove of cattle within mentioned amounting to
head, are forfeited; therefore the fheriff is directed to fell the
fame in like manner as goods taken in execution, and to return
an account of Uie fales, as alfo the expence of maintaining the
faid cattle from the time of their feizure, till fuch fale, to me,
or fome other juftice of the peace for this county, that the fame
may be adjufled, and the money arifing therefrom applied ac-
cording to the dire&ions of the a£t of tne General Aflrmbly iti
that cafe made and provided. Given under my hand &c.
f L J jujlice's order on return of the fales.
The fneriff having returned an account of faxes amounting to
' dollars, and claiming dollars as his commiificn
thereon, alfo dollars, as an allowance for keeping the (aid
catlc froin the day of the feizure to the day of fale, at the rate
of three cents each for every twenty-four hours, and the fame
being examined and approved by me; and three months having
expired fince the fale, a id no perfon except the driver and his
emp' >yers h.wing claimed any part of the faid cattle, the faid
fheri/Fis allowed to retain the fum of dollars for his com-
million an J allowance as aforefaid, and is ordered to pay
dollars, being one half of the refidue of the amount of fales to
the overfeers of the poor of the diftriCl, for the ufe of the
faid dill rift; and dollars the other half of the faid refidue
to the faid A J, the informer. Given under my hand &c.
(M) Order of rejlitution.
To the (heriff &c. of county.
county to wit.
Wnereas B O, hath this day appeared before me J P, a juf-
tice of the peace for the faid county, and duly proved his pro-
perty
CATTLE.
perty to head of cattle, being part of a drove of
bead, driven into this county from North- Carolina by A D, and
by me adjudged on the day of laft paft, on the com-
plaint ©f A J, to be forfeited for failure of the faid A D, to
produce to the next juffice of the county a manifeil Sec, of the
laid cattle according to Jaw: Thefe are therefore to require
you to reftore to the faid B O, the faid head of cattle, he
fir ft paying you for the fame, the fum of three etnes per head
each for every twenty four hours they have been maintained by
you; and for fo doing this fhall be your warrant. Given Sec,
The foregoing precedents are drawn fo as to fait tncfe cafes
where all the bufinefs is conducted by the fame magillive:e. It
may fometimes happen that proccfs i/Tued by one magistrate
may be returned before another; in that cafe the precedents can
fiafily be varied, fo as to fuit the particular fituation of cafe.
CERTIORARI.
THIS writ, like many others in the law, deiives its name
from one of the initial words ufed in it, while all the
proceedings were in latin.
It is an original writ, iffuing out of a fuperior court, directed
to the judges of an inferior one, for the purpofe of certify:? g or
removing the records of a caufe depending before iucn inferior
court, to a fuperior tribunal,—and is ufually granted upon a
fuggeilion fupported by affidavit, that impartial jultice wid not
be adminiftered in the court below, in fuch caufe.
Under this title will be fhewn,
I, In what cases it is grant able,
II, In what manner to be granted and allowed,
III, The effeB of it.
IV, Hhe return oj it,
I. In what cafes it is grantabls.
A Certiorari lies in all judicial proceeding?, in which a writ
of error does not lie; and it is a confequcnce of all inferior jo-
rifdidlions ere&ed by ifatute, to have their proceedings returna-
ble into the fuperior court. L, Raym, 469. 580.
And therefore a certiorari lies to julfices of the peace, even
in fuch cafes where they are empowered by ftatute Anally to
iicsr
116 CERTIORARI,
hear and determine; and the fuperintendency of the fuppri*jr
courts is not taken away without exprefs words. 2 Hawk. 406.
Hut it feenns agreed, that a certiorari fhall never be granted
to remove an indictment after a convidion, unlefs for fo-ne
fpecial caufe; as where the judge below is doubtful what jsdg-
ment to give. See 2 Hawk. 408. and the authorities there
cited.
A certiorari fhall be granted for the commonwealth, or a pri
vate perfon profecutrng for the commonwealth, without fpecial
caufe alledged; but it is otherwife on the application of the de«
fendant. 2 Hawk. 407.
See 2 Com. Dig. 185—189.
II. In what manner to be granted and allowed.
Thefe proceedings are regulated by Virginia lawsy page 88.
fed. 49, 50—page 87. fed. 45—page 98. fed. 67. page 70.
fed. 9, page 74. fed. 51, of the Revijed Code, which fee.
W rits of certiorari are feldom applied for in criminal pro-
ceedings, and will be granted only in extraordinary cafes,' and
upon particular caufe fhewn; to wit, that there cannot be an
indifferent trial had in the county where the information was
made, or indidment found. But whenever a certiorari is de-
livered to an inferior court, or juftice of peace, or coroner*
they ought refpedively to make the certificate, as they fhall
abide by it at their peril, for it cannot be amended after it is
filed and if it is not true, an adion on the cafe, at the fuitof
the party, or information at the fuit of the commonwealth, will
lie, Dalt. Ch. 195,
III. The ejfeB of it.
It is agreed by all the books that after a certiorari is allowed
by the court below, it makes all the lubfequent proceedings on
the record that is removed by it, erroneous. 2 Hawk. 417.
But it hath been adjudged, that if a certiorari for the remo-
vol of an indictment before juflices of the peace be not delivered
before the jury be fworn for the trial of it, the juilices may pro-
ceed. 2 huivk. 418.
And the juilices may fet a fine to compleat their judgment,
after a certiorari delivered. L. Raym. 1515.
A certiorari removes all things done between the telle and
return. L. Raym. 835, 1305.
A eertioraii removes the record itfelfout of the inferior court;
and theiefore if it remove the record itfelf againft the principal,
the accedory cannot there be tried. 2 Hawk. 459*
And
CERTIORARI. n7
And if the defendant be convidted of a capital offence, the
perfon of the defendant muft be removed by habeas corpus, in
order to be prefent in court if he will move in arreft of judg-
ment. And herein the cafe ©f a convidtion differs from that of
a fpecial verdidt; where the preemption of innocence may be
fuppofed to continue, and therefore the perfonal prefence of the
defendant in that cafe is not necefiary at the argument of ir.
Bur. 930,
It hath been holden that a certiorari for the removal of a re-
cognizance for the good behaviour, or for an appearance at
feflions, will fuperfede its obligation. But this would be highly
inconvenient; and the contrary opinion ieems to be fupported
by the better authority. 2 Hauuk. 418.
If a fuferfedeas come out of a fuperior court-, to the juftices,
they ought to furceafe, altho' the fuperfedeas be awarded again ft
law; for they are not to difpute the command of a fuperief
court, which is a warrant for them. Cram. 129.
IV, The return cj it.
Every return of a certiorari ought to be gnder the feal of the
inferior court, or of the juftice or juftices to whom it is diredt-
ed; and if fuch court have no propei feal, it feems that the re-
turn may well be made under any other. 2 Hawk» 419.
Alfo every fuch return muft: be made by the very fame per-
fon to whom the certiorari is dlredted, For if it be diredted to
the juftices of peace of fuch a place, and the clerk of the peace
only return it; or to the conftable, or to the recorder of B, and
the deputy conftable, or deputy recorder return it, without
(hewing in the return that the principal had power to make a
deputy, nothing is removed. 2 Hawk. 419.
If the certiorari iffue to ufia the record as evidence, then the
tener, if returned is fufRcient, and countervails the plea of no
fuch record; but if the record is to be proceeded upon, the re-
cord itfelf muft be removed, and this, whether ir is before judg-
mentor after; and in this cafe, the writ muft be lupeiftded,
and not quathed, which can only be done on a view of the re-
cord itfelf. Woodcraft v. Kinajton. 2 Atkyns, 317.
ivlr. Hawkins fays, it is advifeable, that a return of a certio-
rari directed to juftices of peace for the removal of an indict-
ment taken before them, have the claufe, as alfo to hear and
ditermine divers felonies lAc. as well in the delcription of the
juftices who make the certificate, as of thofe bef-re whom the
indidtmeut is laid to be taken in the caption. 1 Hawk. 420.
if
P.
ii3
CERTIORARI.
If the perfon to whom z certiorari is duelled, do not make a
return, then an alias-, that is, a facond writ; then a pluries,
that is, a third writ, or caufam nobis ftgnifces, fhull be awarded,
and then an attachment. Crom, 116.
Befides thefe general rules which are common to all certiora-
ries, there are many times fpecial direblions about them, in par-
iicular cafes.
Form of a return of a certiorari, to remove
an indiB merit.
Firft, on the back of the writ endorfe thefe or the like words;
execution of this writ appears in a fchedule to the fame
writ annexed.
And that fchedule may be thus, on a piece of paper by itfelf,
and annexed to the writ,
county to wit.
IJ P, one of the commonwealth's jujlices of the peace for the
county a for efaid, by virtue of this writ to me delivered, do under
my feal certify unto the commonwealth''s judges of the court of
the indiSlment of which mention is made in the within writtoge- •
ther with all things touching the fame indiSlment. In witnefs
ivhereof I the faid J P, have fet my feal to thefe prefenis. Given
at in the faid county, the day tf in the year
of our lord and in the year of our foundation.
Then take the record of the indictment, and clofe it within
the fchedule, and feal and fend them up both together with the
certiorari.
It mull be obferved that the above form, will- not fuit every
return. However, it may eafily be varied fo as to comply witft
the inju&ions of the writ, which is all that is neceflary.
CHALLENGE. See juries.
CHAMPERTY. See maintenance.
CHANCE MEDLY. See homicide,
C H E A T S,
Fu-billable by public profecution are,
/. By the common lava*
II. By Jiatuie.
I. JJy the ccmmrn law.
CHEATS punifhable by the common law, may in general
be dcfcribed to be decent praG^es in defrauding or en-
ceavouring
CHEATS. 119
deavouring to defiaud another of his known right-, by means of
Xome artful device, contrary to the plain rules of common ho-
nefty j as by playing with falfe dice, or by caufi >g an. illiterate
perfon to execute a deed to his prejudice, by realing it over to
him in words different from thof in which it was written; or
by perfuading a woman t - execute writings to another, as her
truflee, upon an intended marriage, which in truth contained
no fuch thing, but only a warrant of attorney to confefs a judg-
ment; or by fuppreffing a wil1; and fuch like. 1 ib8,
It feems to be the better opinion, that the deceitful receiving
of money from one man to another's life, upon a falfe pretence
of having a meflage and order to that purpole, is not puni(liable
by a criminal profecution, becaufe it is accompanied with no
manner of artful contrivance, but wholly depends on a bare
naked lie; and it is faid to be needlefs to provide fevere laws for
fuch mifchiefs, againft which common prudence and caution
may be a fufficient fecurity. 1 Hawk. 188.
On an indiftment agauift the defendant, a miller, for chang-~
ing corn delivered to hini t3 be ground, and giving bad corn
inltead of it, 'a motion was made to qu ;fh the indictment, it
being only a priyate cheat, and not of a pub'T niture. It was
anfwered that being a cheat in the way cf trade, it concerned
the public, and therefore was indictable. And the court una-
nimoufly agreed not to quafh it. 1 Srfs C. 2,17. R. v. Wtod.
As there are frauds which may be re}; eved civi ly, and not
punifhed criminally (which are properly cognizable in courts of
equity J fo there are other frauds, which in a fpecial cafe may
not be helped, and yet fliall be punifhed crimirf.l!y: "1 bus if
p minor goes about the town, and pretending to be of age, de-
frauds many perfons, by taking credit for eonfiderable quanti-
ties.of goods, and then infills on his nonage; the perfons in-
jirprd cannot recover me i-iJue of their good , but they ma) in-
and punifa him Lr a ctir-mai cheat. B <>7, 100.
In the cafe of K. and V/heatly- a diiiindlion was taken be-
tween cheats merely of a private nature and fach as afFcdb the
public, which will Lrve as a guide in all future decihons.—■
The defendant was indicted and convicted of felling beer ilwrt
cf the due and j iff meafure, to wit, 16 g'dlens as and for 48.
It was moved m an elf of judgment. And by the court, this is.
only an inconvenience and injury to a p i^fe peifor, arh ng
from that private perfons owur negligence and tz.-cUf nefs in m.t
meafuring the liquor, upon receiving it, to fee whether it held
out the juit meal ire or no.. Ortenccs that ue ina.'-l.iMe n uff
be fuch as affect the public. As if a ninu wes Lite weights a-d
meafures, and fells by them to all or many :i his cuucmers, cr
v-bs
;so CHEAT S.
wfes tbersn in the ufual couife of his dealing; fo if there is a con-
fpiracy to cheat: For thefe are deceptions that common care
and prudence are not fufticient to guard againft. Thefe are
much more than private injuries, they are public offences. But
in the prefent cafe it is a mere private impofition or deception,
No fall's weights or meafures arc ufed; no conspiracy: Only
an impofition on the perfon he was dealing with, in delivering
him a lefs quantity inftead of a greater; which the other care-
lefsly accepted. It is only a non-performance of his contra#;
for which non-performance he may bring his aftion. So, the
idling an unfound horfe for a found one, is not indicfable: The
buyer fhould be more upon his guard. And the diftinftion
which was laid down as proper to be attended to in d! cafes
of this kind, is this: That in fuch impofitions or deceits where
common prudence may guard perfons againft their buffering
from them, the offence is not indictable, hut the. party is left to
his civil remedy for the redrefs of the injury that has been done
to him; but where fn'fe weights ami meafures are ufed, or talfa
tokens produced or fuch methods taken to cheat and deceive, as
people cannot by any ordinary care or prudence be guuded
againft, there it is an offence indictable. Bur. 1x25. Blacks
Rep. 273.
II. By Jlatute.
By Virginia lavas (14 R. Cond. 1789) chap. 49 feet. I, 3.
page 50. of the Reviled Code, it is enacted, c That if any per-
4 fon (hall falfely and deceitfully obtain or get into his hands or
4 prffeffion, any money, goods or chattels of any ctr.fr-perfon,
4 by colour and means of any falfe token, or counterfeit letter,
4 made in any other man's name, every peribn to offending, and
4 NRg thereof lawfully com idled in the court of the ffftriit, in
4 whjch fuch oftcnce ill a 11 have been committed, fhall have and
4 buffer fuch conxft'on and pun if h inert, by imprisonment of his
4 hotly, .without bffl or mainprize, for any (pace, not exceeding
^ one'■> ear, and f.-tting upon the pillory, as fhall be.unto him,
4 limited, a-.ij 'dgH, or appointed by the ftftd court.'
Saving to the party injured, fuch remedy by action, as if this
acHrd i.-.vcr been made he. •
G t aiio his hands cr pcjJ'£lon] A perfon endeavouring by a
counterfeit lci.it-to deft an J another of goods, and being ap-
pmheude 1 c- impi-ion of inch fraud, before he hath got the
gooes into ins p-ft] iiion, feems not to be within the ftatute. 2
Bt/s I la. 27. R. v Brian.
Fc.j'e tckffv.j Iff morion to quafti an indiclment, which was,
tha*. t,je ueffndant came pretending that fuch a perfon had fent
. . him
CHEATS.
him to receive twenty pounds, and received it, whereas fuch
perfon did not fend him: By the court, it is not indidtable, un-
lefs he came with falfe tokens, for we are not to indidl one man
for making a fool of another. Blackerby. 79.,
It was adjudged that an indi&ment avering the offence to be
by falfe tokens, without (hewing what thofe falfe tokens are,
is not fuificient; and that the fraudulently procuring a note
from a peifon, by falfely affirming that there was one in the
next room who would pay the money due upon ^t, whereas in
fa£t there was no fuch perfon in the next room, 13 not a falfe
token, but a falfe affirmation only. Str. 1127. K. v Muncz,
For cheating in gaming, fee title gaming.
For precedents, fee Warranty Commitment, Recognizance,
and Criminals,
CLERGY. [Benefit of]
HE privileges and difabilities of clergymen, as fuch, are
confined within fuch narrow limits fince the American
revolution, that they do not Eem to require any particular no-
tide.— The mo ft important diitin&ions between that clafs of
citizens and others, are, their exclufion from a feat in the le-
gifiature, and the privy council, by the 14th article of the con-
Ititution of this flate, their exemption from fervice in the mili-
tia, by V. I, p. 295.—and their privilege from arrefir, while
peiforming religious worfhip; by V. L p. 287.
But the benefit of clergy, which, during the times of papal
ufurpation, originated in an exemption claimed by thofe in holy
orders, from criminal procefs before the fecular judge, merits a
confiderable degree of attention; as the phrafe is adopted in our
laws to fignify a commutation of capital puniihment for burning
in the hand.
The various mutations which this benefit of clergy has un-
dergone from its firft introduction into England may be feen in
Blackftone's Commentaries. 4ih vol. p. 365—369.
At prefent, it is fufficient to obferve that the privilege is
equally allowable to males and females; who, for the fir it of-
fence iball be discharged of the capital puniihment of felonies
within the benefit of clergy, on being burnt in the hand. 4
Black's. Com. 373.
I fnali now fhew,
I.
122 C L E R G Y. [Benefit of]
I, To what perfons and in what cajrs clergy
was allowed by the cotnjnon law.
II, T7 what per fins and in what cafts it is aU
lowed by the laws of this commonwealth,
III, At what time itwujl be demanded,
IV\ The eft B oj clergy allowed,
L To what perfons and in wha£ cafes clergy
was allowed by the common law,
' It has already been obferved that fbi? privilege was peculiarly
claimed by th; clergy, or thole in hoi > orders; and until it was
modified by fevcrai iratutes, it was aimoft exclusively granted
thdm. '
But in feme cafes it was not al'owed by the common law,
even to the clergy; as, in frefpafs, petir larceny, and high trea-
foil. See Hale's pi, 23 m 2. H. H. 326
Yet, it whs al'owed, bv the common law, in all cafes of fe-
lony, except robbery^ on the hi^h nay, and arJony or boufe bum-
iqg. 1H. H 330—333. ' '
A woman by the common law could not h >ve the benefit of
clergy, but this is now remedied oy flatute. See the next dlvi-
/ton cf this title. ' ' ' * 1
II, To what persons and in what cases it is al-
Lwed by the laws of this commonwealth.
By Virginia la-'us (14 R. Cond. 1789) page 50, cf the ?vC-
viflu Code, it is declared., T hat the benefit of clergy fhall not
be allowed to principals in the fir.l degree, iff, in murder; 2d,
or in burglary; 3J, or in aifon'at common laW; 4th, or for
tnc wi.ful burnii g of any court-hoiife, or county or public pri-
fon, or of the ohice of the cleric cf any court within this com-
m on wealth; 5th, or Br the felonious taking of any goods or
chattels out of any chu.ch, chape1, or meeting-houfe belonging
thereto; 6th, or for the r< ubing of any perfon or perfons in their
dwelling-houfes or dwelling place, the owner or dweller in the
fame houfe or dwelling-place, huswife, his children, crfervanfs,
then being within, and put in fear and dread by the fame: 7th,
or for the robbing of any pericn or perfons in or near about any
h'gnway; 8th, or for the felonious k-.dlng of any hcrfe^ geld-
ing, or mare; 9th, or for the felonious breaking of any dv.ell-
ing-hcufe by day, and taking away of any goods or chattels,
being
CLE R G Y. . ..[Beafitof] 123
being in any dwelling-houfe, the owner or any perfon being
therein and put in {'ear.1 ' ; ; ' -v
II. The be: efiroi clergy fliall not be allowed to principals in
the fecoiid degoe, in a-y of the cafes abovenientioned. , . j fi
III. It {hall not be allowed to acceffaries before the fa£t, ^ 1 ft,.;
ih murderj 2d, or burglary; 3d, 'or arfon at Common law;
4th,' or for the'wilful burning of any court hcuic, or county, or
public prifon, or of the office of the c'ierk of any court within
this commonwealthj 5th, or fof the robbing of any perfon or
perfons in their dwelling-houfes or dwelling-places, . the owner
or dweller in the fame dwelling-h'oule or dwelling- place, his'
wifb, his children or fervants then being ' within and' put in fear
and'dread by the fame; 6th, or for the robbing of any perfon or '
perfons in or near about any highway.• ...
IV. It fhall be allowed to principals and acceffaries in all of-
fences which would otherwife, be without clergyy whether the
fame be rrewly created by any act. of the, General Affemblyv or
exift under the common law, lintels it be taken away by the ex-
prefs words of fome a£t of Affembly.'y . or , .
, V." It fhail not be allowed to any perfon more than once, ex-
"cept in the following cafe, that is to lay:' Whenfoever any per-,
fon fhall have been admitted to the benefit of clergy, fuch ad-
million fhall not operate as a pardon or dlfcharge for other ©f- .
'fences of a clergyable nature, committed by.him before that ad-
tniffion to the benefit of clergy, but fie Ihali. be again allowed •
the benefit of clergy for every Other offence of a clergyable na~
ture committed by him before that admiffidn to the. benefit of
clergy, and fhall be burned in the hand for. every fuch. offence.
VI. Tut if any perfim who fhall have been oiyc'e admitted .{[o;
the benefit of clergy, fhcll before that admiffion have committed;1
any offence, in which-the benefit of Nergy is- not allowed by
law, or fhall after that admillion commit any offence in v/hich
the benefit of clergy is even allowed by law, he (hall fuffer death
without the benefit of clergy . . . • . b T
" VII. A female ffriail' in ail cafes receive the fame, judgment,
and ftand in the fame condition wiui . rcfpeCt to the benefit of -
clergy, as a male. . ;-:\l'.h; ^1 y - >'
- V ill. A Have fhall in all cafes receive the fame judgment,
and ftand in the'fame c incn, with refpecfc to the benefit of
clergy, as a free negro or nul re to ' ■ ;
IX. Nothing in this aft comained, ikllbe cor. ft rued to take 1
away the benefit of clcrg*, from any otfe.ee, hi .which'fit' is
now allowed by afiy'act ot tne Gem»-1 \fi jMy, or, to allow ''
it in any offence, from whteh it is iuw * */ taken a Way/
by any aft of the General Auembly, 1 ' . ' b -<
•h';,v ;b- vf h ' h*" "B elides
,124 CLERGY. [Benefit of]
Befides the cafes particularly mentioned i-n the foregoing lav/,
there are many others in which clergy is taken away by Ipecial
adls of the legiflature, which being interfperfsd under their pro.
per titles, it will be lufficient here barely to refer to thole
titles.
Clergy is taken away for the following offences, viz,
BUGGERY, See' BUGGERY.'
BURNING HOUSES &c. See ' BURNING.
CERTIFICATES. Stealing them&c. See LARCENY.
COUNTERFEITING Coin &c. See 4 COIN,'
COUNTERFEITING the feai of the rigifter of the
land-office. V, hp. 261.
FORGERY, in variou-Gnftances, See c FORGERY.'
INSPECTORS of TOBACCO—Bluing receipts for
tobacco not delivered to them, or more than one re-
ceipt for the fame tobacco, unlefs authorifed by law.—
See P. I, page 278.
LAND-WARRANTS—Stealing them. See 4 LAR-
CENY, and V, L p. 261.
LOAN-OFFICE CERTIFICATES-Stealing them,
or prefenting them for payment, knowing them to be
flolen. See 4 LARCENY,' and V/. />. 263.
RAPE, See 4 RAPE.'
SLAVES—Confpiring to rebel &c. See 6 SLAVES.'
SLAVES—Adminiftering medicine, unlefs it appears to
the court that it was done with no ill intent, and that no
bad confequenees refulted. See 4 SLAVEb.'
STEALING, or SELLING any free perfon as a Have,
V. /. p. 199.
STEALING a SLAVE. V, I p, 199.
TREASON—By levying war againft the commonwealth,
within the fame, or adhering to its enemies, giving them
aid and comfort;—or eftabliihing a government within
its limits, independent or ft. V. L p. 282.
V/ARE- HOUSE or S PORE-HOUSE—Breakingthem
in the night or day, and healing thereout above the va-
lue of 4 dollars.—See 4 LARCENY,' and V. I, p. lib.
WOMEN—Unlawful and carnal knowledge cf a woman
child under ten years old. See WOMEN.
WRECKS—Stealing from a veifel wrecked; felony with-
out clergy. See 4 WRECKS,'
The letters with which the perfon admitted' to clergy was di-
reeled to be burnt by the flatute of 4 Hen, 7. c, 13. viz. M.
En-murder, and T. Er other felony, in the brawn of the left
rhumb, fliii continues in pi act ice in this country.
But
CLERGY.
[Benefit of] 325
Rut no man fhall be ouftetl ofhis clergy a fecond time, by
the baie marlc in his hand, or by a parol averment without the
record teftifying it5 and it teems, that it he deny he is the lame
pt.rfon, iilue muff be joined upon it, and tried to be the Hi me
pcrlbn, before he can be ouilod of clergy. 2 H. H. 373'
Where the law creates a new felony ami does not expreftly
talce away the benefit of clergy it is to be allowed. H. Pleas*
230.
But if the law enacts generally that it fhall be felony without
benefit of clergy, ir that he thaii fuller as in cafes of felony
without benefit of clergy, this excludes it in all circumftances
and to all intents. 2 H. H. 2^5,
in all cafes where a law oulteih clergy in cafe of any felony
created by ftatute, the indlbhrunt mult preciiely bring rhe party
within the cafe defcribed by the H acute; other wife, altno' pof-
fibly the fa& ittelf be within the ftatute, and it may lb appear
upon the evidence, yet if it be not alleged in the indictment,
the party tho3 conviift lhall have his clergy. 2 H. hi. 336.
but akho' the cafe be fo laid in the indict cent as to oxing it
within the ftatute, and oult the prifoner of clergy, yet, if upon
the evidence, it appears to be without the ftatute, and a felony
only, the jury ought to find him guilty of liie iclony only, and
riot of the matter laid in the indictment, and thereupon the pri-
{oner fliall be admitted to his clergy. And this is commonly
done. M.
However, if the offence was capital at common law, and a
ftatute only excludes it from clergy, the indictment, in luc.t
cafe, need not conclude againfi the form of the Jiatute% becauf;
the ftatute doth not alter the nature of the offence, but leaves
it to its proper judgment, and only takes away a perfonel pri-
vilege of exemption from fuch judgment. 2 Hawk 34.2.
Where an aCt takeih away clergy from the principal, and
fafth nothing of the acceffory, the acccii'oriss before as weil
after the fadt, ftuli have their cbigy. 11. Co* 37. Pcjl. 355,
III. jit what time it muji be demanded*
By the ancient common law, the benefit cf clergy was do-
manded as focn as the prifoner vvas brought to the bar, before
any indictment or proceeding agamft hun. But tnis was found a
great inconvenience to the prifoner, becaute pcifibiy he mig :t
have been acquitted cf the felony; cr if not, yet in cafe ot an
jnquelt of office he loft his challenge to fuch inqueft, a;.d upon
fucn inqueft found, he loft his goods and the profits o: his Lad.
And
126 CLERGY. [Benefit or]
And therefore C J, Prifot, with the advice of the o her judges
in the roign of Hen. 6. fur the iafety of the innocent, would
not allow the prifoner the benefit of clergy before he had plead-
ed to the felony, and (having the benefit of his challenges and
other advantage;') had been convicted thereof; which courfa
hath .been generally obferved ever iince, % Inf. 164. 2 H. II.
37^
And this b°refit of clergy may be allowed by the court in
dUcreticn, tho* the party challerge it net. II. PUas. 239.
IV. Tie ffeci of clergy allowed.
A perfon receiving the berefit of clergy by being burnt in
the ha» is reftored to his credit a:.d may be a good witntfs,
2 H> 333.
And it is holden that after a man is admitted to his clergy it
is aiSb'onahle to call him felon; becaufe his offence being par
dor ed by the ftatute, ail the infamy and other confequences of
it are discharged. 2 Hawk. 365.
The forfeitures which foi merly accrued on attainder or convic-
tion of felony, are now aboliihed by our laws, bee c Attainder.
COIN.
See title 1 Coin J in the Appendix to this work.
TO counterfeit, aid or abet in counterfeiting any coin
made current in this commonwealth, or to make or affift,
aid or abet in making bafe coin, or to pais any fech counterfeit
or bafe coin, knowing it to be counterfeit, or bafe, is felony
'without benefit of clergy, V. I. p. 260.
C O M M I T M E N T.
T THEN" a perfon is arrefied, by any of the means men-
V y tioued under title Arrejl, and brought before a ma-
giUrate, he ihoukl, a'ter eximining into the nature and cir-
cum fiances of the crime alleged, either difcharge, hail, or com-
tnit him. See 4 Blacks. 296.
A commitment or minimus, then, is a warrant by which a
criminal is fent to p. ifon; and mittimus is fo called, from the
full word when wrote in latin under which will be fhewn,
I
COMMITMENT.
127
I, Who may be committed; and to what place,
IL The form of the commitment,
III, That the jailor JJoall receive the prij)ner,
IV, Shall certijy the commitment,
V, Commitment difcharged,
VI, Precedents of commitments,
L Who may be committed; and to what place.
If the offence be not bailable, or the party cannot find bail,
he is to be committed to the county jail by the mittimus of the
juftice, or warrant under his hand and fe.d, conta'ning the
caufe of his commitment} there to abide till delivered by disc
courfe of law. 4 Block's. 300.
And it is bid, that wherefocver a juftice is tmpowered by any
ftatute to bind a perfon over, or to caufe him to do a certain
thing, and luch perfon being in his prefence (hall rcfufe to be
bound or to do fuch thing, the jultice may commit him to the
jail, to remain there till he (hill comply. 2 Haw, 116.
If a prifoner be brought before a juftice exprefsly charged
with felony upon cath, the juffice cannot difcharge him, but
jnuft bail or commit him. 2 IL H, 121.
But if he be charged with fufpicion only of felony, yet if
there be no felony at all proved to be committed, pr it the fait
charged as a felony be in tru'h no felony i.i point of law, the
juftice may difcharge him: as if a man be charged with felony
for Healing a parcel of the freehold or fo.r carrying away what
was delivered to him, and fuch like, for which tho'tdere may
be caufe to bind him over as for a trefpafs, the juftice may d:f-
charge h:m as ti felony, tv.cc.ufe it is not felony. But if a map
he Liihd by another, th'ft it be by misadventure, or fell d fence
(which is not properly felony) or in making an nftu.uk upon a
miniilcr of juftice in cxccu'ion of his office fwhicn is not at all
felony) yet the juftice ought not to difcharge him, Lr he muft
undergo his trial for it j and therefore he nmft: be commuted,
or at ieail bam d. 2 H, H. 12!.
But commitment b] the j ifticcs of the peace aim-oft in all
cafes (except far the peace, pood briiavour, felony <r higher
offences) is but to rtt..:n the pa"tv till ha h itn male fine; ^.nd
therefore if he offer to pay it, or find torches by r<jc git.ccnce
to pay it, he ougbt -.et to be convmLt-d, tut to be Uthvcrcd
prefuiitiy, Halt. c. ijc,
123
C O M M I T'M E N T.
IL Hhe jorm of the commitment.
I. It muff b" in writing, either in the name cf the common-,
weal h, and only tefHl by the perion who makes it, or it may
be made by fuc° perfon in his oa-ii name, exp effing his office,
or aiuhori y, and rnufl be uireited to the jailor, or keeper of
the pnfon. % Haw, I 9.
Yet the mention of the name and authority of the juftice
$Jor<J Hale fcys) in the beginning of the rmttimu'-, isiut always
1 t-ceflary, for the feal aiiti fubfcription of the juffice to tie mit-
timus, is fufficient warrant to the jailor, for it may be fupplied
b; averment, that it was done by the j iitice. 2 H II. 122.
2 It fhould contain the name and lurname of the party com-
roi'ted, if known; if not known, then it may be fufficient to
defcri -»e the perfon by his age, ftature, comp'ex'on, colour of
his hair, and tne like, and to add that he refufeth to tell his
limine 1 H. H. 577.
3. It is fife hut not neceffiary, to fet forth, that the party is
charged u,"» n oath. 2 Hutu. 120.
4. it ought to contain the caufc, as for treafon, or felony,
or fefp'cion the?-eof; other wife, if it certain no caufe at all, if
the pmbner efcape it is no offier.ee at ali: whereas if the mitti-
mus contained the caufe, the efcape were treato-i or felony, tho'
he were not guilty of the offence; and therefore for the cum-
moiiwealth's benefit,- and that the prifoner may be the more
fafel} kept, tne nvttimus ought to contain the caufe. 2 Inf. 52.
And hereupon it appea**etb, that a warrant or mittimus to
anfwer to fuch things as fhail.be objected againfthirn, is utterly-
ag-inlt law. 2 In/A 591.
Alfx, it ought to contain the certainty of the caufe; and there-
fore if it be for felony, it ought not'to be generally for fir]ony,
but it niuit contain tlic Ipeciai natuie of tne felony, bricfi", as
for felony / r the d aih of juch an one, or for burglary, in break-
in* the houfe of fuch an one: and • the re ifon is, becaufe it may
app: ar to the judges upon an habeas cor/us, whether it be felony
or mot. 2 H. It. 122. 3 blacks 134.
But the want he tofi Teems not to make the commitment ab-
foiutelr void, fo as to fubjebt the jailor t&> a falls imprifonment;
but it lies in averment tv> exeufe the jailor or officer, that the
matter was for felony, 1 H, II 584.
#15. it mufi have an apt conclufion; as if it is for felony, to
dot in him till he'be thence delivered by law, or by order of law,
or by due courfe t f law 2 A. j20. 2 H. H. 123.
But if thr conclufion be irregular, it doth not ieern to make
the warrant void, but the law will reject that which is furplu:-
, ■ . . - . age
COMMITMENT. 129
age, and the reft (hall (land; fo that if the matter appear to be
foch, for which he is to remain in cuftody, or be bailed, he
ihall be hailed or committed as the cafe requires, and not dif-
charged, but the wrong conclufion (hall be rejected. I H, H,
' It is alfo to be obferved that a commitment grounded on a
ftatute ought to be conformable to the method prefcribed by it.
As v/here the overfeers were committed for refufing to account,
and the warrant concluded in the common form, until they be'
duiy difchargei! according to law$ upon the return of an habeai
\oipus the court held the commitment void, becaufe the warrant
ought to have concluded, there to remahi until he (hall account
as the 43 Hi c• 2. doth appoint. And a difference is, where
a nun i> committed as a criminal, and where only for co'ntu-
rnacys in the iirft cafe, the commitment muft be, until dif-
clurgcd actording to law; but in the latter, until he comply.
2 ii-roj Not. 33.
Where a ftatute appoints imprifonment, but limits no time
how long, in foch cafe the prifoner muft remain at the difcreticn
of the court. Ddt. c. 170.
6. (t muft be under feal; and without this the commitment
is unlawful, the jailor is liable to falle imprifonment and the
v/didl efcape by the jailor, or breach of prifon by the felon,
makes no felony. 1 h, H. 583.
But this muft not be intended of a commitment by the feift-
ons, or other court of record j for there the record itfelf, or the me -
modal tnerect, which may at any time be entered of record, i. a
.fufficient warrant, without any warrant under feal. 1 H. H, 584.
It Ihould aifo fet forth the place at which it is made (that it
may appear to be within the jurifdidticn of the juftice) 2, Haw.
E19
it inuft alfo have a certain date, of the year and daye 2 H.
H. 123. . •
III. That the jailor fo all receive the prifoner„
If the jailor fliall refufe to receive a felon, or take any thing
for receiving him,- he (hali be punilhed for the fame by the jufo
.ice?. Halt. c. 17c.
it hems, that regularly no one can juftify the detaining a
prifwner in cuitody out of the common jnil, unlcfs there be fome
puticular reafon for fo doing j as if the party be fo dangerouily
iicK, that it would apparently hazard his fife to fend him to jail,
or there be evident danger of a rejesus (ram rebels, or the like.
A Haw, jitt,
IV-
COMMITMENT.
IV, Shall certify the commitment.
The jailor being an officer bound to give his attendance at
tourt, 4 to bring thither his priloners, and to receive fuch as
4 may be committed, (Dak c. 195>') ought always to certify
tils commitment with the prlfoner.
V. Commitment difcharged.
It feems that a perfon legally committed for a crime, cor-
fyiinly appearing to haye b.en done by fomc one or other, can-
not lawfully be difcharged till he be acquitted on his trial, or
h L/e an ignoramus (not a true bill) found by the grand jury, or
no/ie to prcfecute him on a proclamation for that purpole made
by the juitices. But if a perfon be commired on a barefufyi-
cion without an indictment, for a fuppoied crime, \ here aher-
wards it appears that there was none, as for the murder cfa
perfon Thought to be dead, who afterwards is found to be alive;
it hath been holden, that he may be fafely difmitled without any
farther proceeding, for that he who fufieis him to cfcape is pro-
pei ly pu dihable only as an Laccefi'ary to his fuppofed offence;
and it is impoffible that there fhould be hn acceffary, where
there can be no principal; and it would be hard to puniflione
for a contempt, in difregarding a commitment founded on a
fufpicion, appearing in io uncontefted a manner to be ground-
lei's. 2 Haw. 121.
VI. Precedents of commitments,
if General warrant of commitment.
county to w it.
To (fhrrfT cr coi flable as the cafe may be) and to the
kci per cf the jail in the faid county.
7'he/e are to command you Jhe faid fheriiT (or conff able) in tit
name oj t c commoiwcaitj forthwith to convey and deliver into
the cujio iy of the faid keeper oj t< e faid jaily the bo iy ct A 0, cf
&c. charged lejJie me if b"c. (here dc.uibe :hc ol-
fence ) Anu you the Jaid k ef>?r a*e he*ttoy rcqwrcd io recent
the jald A U, into your cujio >'y i<i the faid jaif and him there
fale.y to kerpy until he foal! the nee h- djcbarged by due ccunje if
iutj. Given under my handfrui j.a! at the county cjtrcjmy ihiS
day of intfjeyeat be,
2*
COMMIT M E N T. 131
2. Mittimus for felony.
coun'y to wit,
• To the keeper of the jail of the faid county.
Whereas AO, late of ide. labourer, hath been arrejdei
for fttfpicion of a feLnj by himt as it is fetid, comnitted, hi healing
oj the value f the property of of idc. There-,
fore on behalf oj the faid ct.mmo .zvealih I command you, that you
receive the faitf A Q, into yotir cu/lody in the faid jail thereto
remain till he be delivered from your cuflsdy by due courfe of law•
Given under my hand and feal, at the faid county, the day
of in ibe y\ar of the commonwealth»
3. Another.
county to wit.
J P, a jufiice of the peace for the faid county, to the keeper
of the jail in the faid county.
Ihefe are in the commonwealth's name to charge and command
you, that you receive into your faid jail, the body of A O, late of
in the faid county, yeoman, taken by A C, con fable of
in the (aid county, and by him brought before me for fufpicion of
felony, that is toJay, jor fealing and that yonfafe 'y keep
the faid i\ O, in your faid jaii until he fall tbcnce be delivered
by due courfe of law. Given under my hand andJeal oV.
4. Another.
county to wit.
To the keeper of the jail in the faid county.
J fend you herewith the body of A O, late of Gfc. labourer,
taken and brought befre me for tfc. (here defcrihe the offence)
And you the faid jailor are her eby commanded to receive toe faid
A < \ into your jail and cU/hdy, and hi.n there fafsly to ket.p 1 ill
he Jhall be thence dif barged by due couj~s of lava, Given under
my hand aid feu I Wc.
5, Mittimus in the name of the commonwealth.
county to wit.
The commonwealth of Virginia to ffie keeper of the jail of the
Lid county, greeting:
Whereas A O, lets of i.i the fad county, yeoman, is
arrefied for fufpicion of fehn" by him, as it is [aid, committed, in
fehnicufy taking and carrying away " of the value f
the
I32
C O M M I T M E N T.
the property of Ym> are therefore commanded to rue'vve lie
/aid A O, into your cujlcdy in tie jaid jail, there to remain till
he be delivered out of your cvjiody by the laws f this common-
wealth. Witnefs J P, one of the commonwealth'' s jujiices affined
to keep the peace for the faid county, at the county aforefaid, ibis
day of in the year and in the year of the
commonwealth.
CONFESSION.
A confeffion is either eaprcfs, cr implied.
"T "[TON a Pimple and plain confeffion of the indidbment, the
court hath nothing to do but to award judgment: but it
is ufually very backward in receiving and recording fuch con-
fefiion, out of tendernefs to the life of the prifonerj and will
generally advife him to retradl it, and plead to the indictment,
4 Blacks Com. 329.
An implied confeffion is where a defendant, in a cafe not ca-
pit J, doth not dire&ly own himfelf guilty, but in a manner ad-
mits it, by yielding to the mercy of the commonwealth's judges
cr jnftices, and defiring to fubmit to a fmall fine, wh ch the
court may accept without putting him to a diredt confeffion. 2
Hank 333.
Mr. Hawkins fays^ I take it for granted, that no cmfeiTion
whatsoever, fhall, before final judgment, ch prive the defendant
of the privilege of taking exceptions in arreft of judgment, to
faults apparent in the record; for the judges muft ex ojfcioy take
notice of all fuch faults, and any one as amicus curiae may in-
form them. 2, Haivk. (6. ed.) 470.
The confeffion of the defendant, taken on an examination
before juftices of the peace, or in difcourfe with private perfons,
it is (aid, may be given in evidence againft the party confeffing,
but not againft otners. 2 Hawk. 604.—Put it fiiould be ob-
ferved, that this examination of the offender, being taken in
purfuance of the ftatutc of England of 1 h 2 P. & M. c. 13.
which is not in force in this country, the trial of a criminal, m
this State, muft be governed by the rules cf the common lav/,
and our own acts of Affembly; neither of which will jufiify his
own examination in order to commit him. See 4 Biucks. 296.
V. 1. p. leg of the Revijed Code.—In the cafe of a private con-
feffion, it teems now to be the moft modern opinion, that it
fhould be received with great caution} and it is laid, that if it
be made either thro' the flattery of hope, or the impreffions of
fear, it is not admiffibie. See 2 Haw. (6 ed.) 604notes (1) (2)
4 Blacks 357.
Conlpiracy,
CONSPIRACY.
*33
I What it is.
IF. H'siv punijhablt*
BY the common law there can be no douV, but that all con-
federates whatibeyer, v rongfully to pitjudice a thud per-
fun, are highly crirr.iiia1 j as where divers perlons coi federate
to. eth- r by indiredt means to impoversfn a third perfon, or talfiy
and malicioufly to charge a man with being the reputed father
tf a bafiard chi'd, or to maintain one another in any matter
•whether it be true cr falfe. I Haiv, igo.
By I (11 R, Gmd. 1786. c. 22.J /. 33. of the ReaJ;fed
CoJe it is enacted, 4 I hat confplralors be they that do co fede-
4 rate and bind themfJvis bv oath, covenant, or other a! iance,
4 that ev^ry of them {hall aid and bear the other fair iy and ma-
4 lici ufiy, to move or caufe to I e tin ved, any i ididtrn. nc or
4 information againft another on die part of ti e cumi onwealth,
4 and thole who are convicted thereof at the fui of the common-
4 wealth, (hall be punifhed by imprisonment and ameicommt;
4 at the dif.redon of a jury.'
From this definition of confp'rators, it feems clearly to fol-
l' .w, contrary to the opinion of lord Coke, that not only thofe
Wiio adtua ly caufe an innocent man to be intlidfed, ard alio to
be tried upon the ind dtment, whereupon he is lawfully acquit-
ted, are properly confpirators, but thot thole alio are guilty of
this offence, who barely confpire to indidf a man faifly and ma-
iicioufly, wfie her they do an/ adt in profecution of fuch con-
fpiiacy or not. 1 Haiv 189 L. Rapn, II&9.
But an a"iion will 1 ot lie for the coi {piracy, unl.fs it be put
in execution; for in fuch cafe, the damage is the ground of toe
action L Raym. 378
Alfo it plainly appears from the words of the ftatute, that one
perl' 11 alone cannot be guilty of cord; irary, within tne purport
of it; from whence it to lows, that if all the defendants who
are p olecuted for fuch a c mfpiracy be acquired but one, the
arquittd of the reft L the a' quittal of thnt one ado: And upon
the fame grau .d it hutli been n Idrn, that no {uch profeunioii
is maint.fi. table agai.ifi: a hufband and vufe only, becaufc they
• re eiteemed but as one pc.ton m law; but it b certain, tiuC
an adtion on the cafe, in the nature ot a cot /piracy, may be
brought againlt one only; alfo, it haih beut refolved, jthut if
fuch an adibn be biought againit ftveral petfons, and all but
one be acquitted, yet judgment may be given againit that one
oily. 1 h't.iv. 192.
In the cale of K. againft Cope and others. The hufband,
and wife and lervants were indicted tor a confpiracy to rum the
k. trace
3 34
CONSPIRACY.
trade of the profccutor, who was the king's card maker. The
evidence againft them was, that they at feveral times had ghat
money to the profecutor's apprentices, to put greafe in the paile,
which had ipoiled the cards. But there was no account given,
that ever more than one at a time was prefent, tho' it was
proved they had all given money in their turns. It was object-
cd, that this could not be a confpiracy; for feveral perfons might
do the fame 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 confpiracy. Sir. 14.4,
K. againft Kinnerjley and Moore. An information was brought,
letting forth that the defendants being evil difpefed perfons, in
order to extort money from my lord Sunderland, did confpire
together to chargq my lord with endeavouring to commit fodomy
with the faid Moore. The defendant Kinnerjley only appears,
and pleads to ifiue, and is found guilty. And now exception
was taken in arrett of judgment, that to every confpiracy there
mult be two perfons at leaft; whereas here is only one brought
in and found guilty, and the other pofllbly may be acquitted.
But it was anfwered, that this is arguing from what has not
happened, and probably never will; for tho' Moore may have
an opportunity to acquit himfelf, and is not concluded by the
verdi£t as Kinnerjley is, yet as the matter now {lands, Adore
himfelf is found guilty, for the confpiracy is found as it is laid,
and therefore judgment may bo given againft one, before the
trial of the other. And a caufe was quoted, where feveral were
indicted for a riot, v.itb many others, and two only were fou'.d
guilty; and ft was objedled, that there muft be three to make a
riot; but upon the words, ivith'many others judgment was given
againft the defendants,' And the court over-ruled the exception,
And the defendant had fentcnce. And in the Enjler term fol-
lowing Monro alio was convicted, and had judgment. Sir. 103.
K. againft L'.iza Aicco'.s. She was indicted for confpiring with
Tho. hygrave, uojuftdy to charge William Frankland with a
robbery, and for that pu-pofe going before a juftice, where By-
grave fwoie it upon him: Niccols only came in and pleaded net
guilty, and the jury found that fhe was guilty, but that Bygraze
died befo.» the muiflmcnt was perfered. Lxcepthn was taken,
that one alone cannot be guilty of a confpiracy, and here is but
one ccRvidled. But the court over-ruled this, on the authority
of Kinnerjley s cafe, in which cafe there was a pollibility of con-
tradittory verdihls, which here cannot be. Sir. 1227.
CONSPIRACY.
II. How punijl:cd.
It is clear that thofe who are convicted of confpiracy at the
fuit of the party, fhajl have judgment of fine and imprifonments
arid to render the plaintiff his damages. I Haw. 193.
Alio it is certain that he who is convicted at the fuit of the
commonwealth cf a confpiracy to accufe another < f a matter
which may touch his life, fhall have judgment that he fhftl lefe
the freedom and franchife of the law (whereby he is difabled
f/om being put upon any juryi or to be fworn as a witnefs, or
even to appear in perfon in any of the commonwealth's courts)
and alfo that hi? hbufes, lands and goods fhall be fcized into the
commonwealth's hands, and his houfes and lands ftriped and
wafted, his trees rooted up, and his body impriloned. And
this is commonly called villainous judgment, and ir. given by
the common law, and not by any ftatute, "and is faid generally
in fome books to be the proper judgment upon every conviJion
of confpiracy at the fuit of the common weal h, without any re-
ftridtion to fuch as endangered the life of the party; but this
point do.h not feem to be any where fet'led. I Haw. 193.
Idut this judgment hath fcldom been given; there being no
inftance of it hnce Edward the third. Burrow. 996, 1027.
In the cafe of Rhine'-Jly and Moore, above-mentioned, Kin-
r.erily was fentenccd to be fined 5col. to fuffer a years imp-ifon-
ment, ar.d to find furetics for his good behaviour for feven years.
Moore was fentenced to ftand in the pillory, fuffer a years im-
prifonment, and to find furedes in like manner for feven years^
Sir. 196.
It; hath been determined that getting money out of a man by
confpiring to charge him with a ftilfe fa£t, is mc!i£table whether
the fiicf tnarged be, or be not, ' criminal in nfelft 1 Blacks.
Rf. 370, .
bo the fact of confpiring need not be proved but may be col-
lacted from other circumftances I Blacks. Rep. 392.
In an action agah.ft two perfons for a conjpimcy, if cne is
found not guilty, the judgment muft be arretted, but it is other-
wife on a fpccial action 011 the caje for a wrong done. Sub'y v.
AJott.*&c. lit i's. 210.
CONSTABLE.
VARIOUS as the conjectures have be< n among the learn-
ed, with refpebt to tne origin of' this word, and the an-
tiquity
l-,6 CONSTABLE,
v>
tiquify of the office, they all agree that it was once an office of
coniideranle trull and conlequence in England, particularly n
picas of the crown. Stc i Burn, "jiifl. 383. Conductor Gmcratis
title c ConjtabletJ
Thefe officers have long been recogrvzed by the laws of this
con monweal h, but the power of appointing them was not ex-
prcLly given till our reparation from Great Britain, when it
was provided by the 15th article of the coaftitulion, that' the
'jnfHces fliould appoint coniiable",' Sic.
For manv parts of the duty of conltaties, fee titles /ijfray,
Arreji, and (Variant.
Fverv conflablc by the common law, is a principal confer-
vator < f the peace. 2 Hawk 33.
1 he power of a conftable in luppreffing an affray, &c. has
already been {hewn under title, 4 which fee.
It hadi always been held that the coiuwtble is the proper rl5-
ccr t > a jutlice of the peaci, and bound to execute his warrants;
and theief >re it hath been refo ved, that where a itatute autnr-
riti a a jullice yf the peace to convitt a man of.a crime, and to
Je\y the penalty by warrant of dillrefs, wuho it faying to whom
i ch warrant lha'1 be directed, or by whom it t'hall be exicuted,
tor con# able is the proper officer to execute it, and indiitable
far difobey'ng it. 2 hawk. 202,
1 lie duties of Gnn/iubies unaer the laws of this common wealth,
\vi'l be found under the titles to which the cafes props-Iv belong.
Conftab.es are exempted from ferving on grand ju.ies, by
I p. ic6,
Alfo from the payment of county levies, F. /. p. 261.
FEES. : " Dols. Cents.
Fcr Frying a ivarrant. o 2£
1» r fummoning a witneffi; O 10
I or lunimoning acoronersjury and witnef-. 1 5
For putting in the {locks. o 21
For whipping a lervant (to be paid by the
owner and rep li 1 by the fcrvant.
For {drying an rxecution or. attachment
returnable bef ;re a juilice.
Fcr Frying an attachment, returnable to
ihe county court, again# the eftate of a
dvbt' r removing his effeds out of the
couu'y. J
For whipping a fhve (to be paid by the 1
overieer, if the {lave is und. x an over- > 0 21
fcer, il not, by the mailer.) J
For
CONSTABLE. 137
For removing any perfon fufpe&ed to be-1 Dols. Cents*
come chargeable to tie count* (to be /
paid by the overfeeis of the pooi) for f
every mile. J
1 he fame for returning.
See F, I. p. 229.
CONVICTS.
TO prevent the further importation of convi&s into this
flute, it is enadied by V I (13 R. Co id. 1788. c. 35)
page 44 of the Revifed Code, 4 That from and after the hrtl
4 day of J-<nuary next, no cap'uin or mafler of any veflel, or any
4 bther perfon, coming into this commonwealth, by land or b/
4 watr, fliall import or biing with him, any perfo 1 who fh.dl
4 have been a felon co ivict, or under fentence of dei.h, or any
4 other legd difability incurred by a criminal profecution, or
4 who fliall be delivered to him from any pr.fon or place of con-
4 sWtrvmt, out of the United States/
4 E.ery captain or mailer of a vefTe1, or any other petfin
4 who fliall prefume to impart or bring mto this commonwealth
4 by land or by water, or (hull fell or offer for fale, any fuclt
4 perfon as above tefcribed, {hall fuffer three months imprfan-
f mcnt, without bail or rmiinp ize, and forfeit and pay for every
4 fuch p°rloo f) brought an 1 i nported, or fold or ofF^ed for
4 fate, the pena'ty of fif y pounds cirrent money of Virginia,
4 one half to the commonweelth, and the other half to .the per-
4 f >11 vvno Hi ill give information thereof; which faul penalty
4 fh ill be recovmed by ailion of debt or information, in any
4 rourt of record, in wh'.ca the defendant ihall be* ruled to give
4 ip. cial bail/
CORONER.
CORONERS are ancient officers by the common law, fo
called becaufe they deal principally with the pleas of the
C own, and were of old times the principal conCrvators of the
peace within their county. 2 Haw. (6 f!.) 70.
Among the llatutes of England, which have b »en ingrafted
into our Revifed Code of laws, the a£t of parliament of 4 Ediu.
1. commonly called the itatute de officio corou,iioris has be*,n
adopt* d, w th fuch variari ms, as the change of our iituation
tnade neccflary. And as the appointment, qualifxcauon, ma' y
*38 Coroners.
parts of Uje duty of a coroner, and his punilhment for ncgleiff,
are prefcribod by that act, 1 ftiall firft refer to the a£t itfelf, and"
then cdnfider fuch other parts of his duty arifing from the com-
mon law, and our a£U of Afiembly, as are not noticed in it.
See Virginia luws^ (17 R. Cond. 1792) chap. Si. page 131.
cf the Rtvifed Code.
It is obferved upon the ftatule of 4. Ed jo. I. that the fame
being wholly directory and in affirmance of the common law
doth neither reftrain the coroner from any branch of his power,
nor exctife him from the execution of any part cf his duly, not
mentioned in it, which was incident to his office before. 2
Hatvk. (b ed.) 77.
The other parts of the power and duty of a coroner, not
mentioned in the foregoing law, will be cordjdcred in the fol-
lowing order,
7. His power and duty as a judicial officer,
i>: an inquji of death.
IT. His power aid duty as a miniferial officer,
III. Hisj.'CS.
IF. Precedents.
I. His power and duty as a judicial officer, in
an inqueft cf death.
He ought to execute his ofHce in perfon, for he is a judicial
officer. Wood's Injl. 83.
By Holt, C J, the coroner need not go cx ojfcio to take
the inqueff, but ought to be fent for, and that when the body
is freffi j and to bury the body before, c.r without fending for
the corjner, is a mililemeanor, Salk. 377. 2 Hawk, (b <?*.}
78. note. (3)
'Hie judicial office of a coroner being confined to the taking
of inquiJitions, on the death of perfons who came to a violent
or unnatural death, and that upon view of the body alone, it is
a matter punifhable, by amercement to let a body lie ti'l putre-
faction, without giving him notice.—Wood. B. 4. ch. 1. p.
491.—2 H. H. 57. Summary. 170.
But if a prifoner in jail dies a natural death, yet regularly the
jailor ought to fend for the coroner to enquire, becauie it may
be polfib y p^efumed that the prifoner died by the ill ufiige of the
jailor. 2 H. H. 57. 2 Ilaivk. (6 ed.) 77.
For if a prifoner, by the ill uiage of the jailor comes to ail
untimely death, it is murder in the jailor, and the law implies
malice
CORONER.
malice in refpedl of the cruelty, And this is the caufa (fays
lord Coke) that if any man dteth in pr fon the coroner ought to
fit upon his body, to the end it may be inquired of whether he
came to his death by the dures of the jailor or othi-rwife:—and
this fitting of the coroner contir.ueth to this day. 3 Iwh 52.
And this inqueft upon prifoners ought to confift of a party
jury, that is, fix of the prilbners (if lb many there be) and fix
who are not prifoners* Umfrevilles Corcn. 212.
A coroner may lawfully, within convenient time, asthefpace
of fourteen days after the death, take up a dead bhdy out of the
grave in order to view it, not only for the taking of an inqueft,
where none hath been taken before j but alfo for taking of a
good one where an infufficient one hath been taken before. 2
Haivk. 78.
So he may dig up the body if th? ftrft inquifition be quafhed
Stm. 53^.—But not without leave cf the court. Stra. 167.
And the juftices will exercifc their difcrelion, according to the
length of.time the body has laid, and the eircumftances of the
cate. SalL 377, Stra. ±1.
If there is danger of infection from digging up the body, or
if the body is drowned and cannot be found, or if it has lain io
long before the coroner is ca.led in, to take the inqueft, that no
affiftance can be had from the view, he ought not to proceed.
In fuch cafes the inquiry may be by witneffes of the felony, by
jufttces of the peace, jufticeS of oyer and terminer, or in a
court, by prefentment of the grand jury. See iVood^s Irtji. 491.
% Hawk. 78. 2 H. H. 59.
Where the body had been buried five years and the lkull was
dug up, which the coroner allured the jury was the ikull of the
dcceafed, and the inqueft was taken upon that, the court ixfufed
to fde the inquifition. Stra. 22. R. v. Bond.
It is not necefiary that the inquifition fhould be taken in the
very fame place where the body was viewed; for it hath been
refolded, that an inquifition taken at D. on the view of a body
lying dead at L. may be good. 2 Haw. 78,
A coroner hath no power either by common law or ftatute
to inquire cf any acceftbries after the fadf, to a fclor.y; but of
acceiforles before, he hath fuch power. 2 Hank. 78.
If the coroner omits to take an inquifition upon an untimely
death it may be done by juftices &c. but it mult be,d'one open-
ly, and if it be done fecTeily it may be quathed I Bur. 17.
For mifrnanagement in the coroner he. the filing of the in-
C(uifition may be ftoped, or the corcnrr may be ordaed to at-
tend, and amend his inquifition. TF&d's Iff. 49a.
14® CORONER,
if he hath beea guilty of corruption or bribery in taking the
iuquilition, a melius inquirendum may be awarded to fptci. i
commhTioners to take a new one, who (ball proceed en t'~e tel.
timony of witness, not on view of the body. If the inpjifitioa
is good, he that is fufpectcd to have committed the felon) may
be tried up; n the inquihtion, as well as upon an indictment,
H cod's Injl. 492.
If the ccnfiables make not a return, or the jurors returned
appe-.r not, their defaults are to be returned to the ceroner:
and the con (tables or jurors in default {hall be am&rced by the
court, ha' ing cognizance of the proceedings. 2 H. H. 59.
1 he jury appearing is to be fworn and charged by the coro-
ner t> enquire, upon view of the body, how the party came by
his d« ath. 2 H. H. 60.
Tfm opinion formerly held that a coroner's inqueft was net
traverLble, is now generally exploded. 1 Bac. Abr. Coron. D.
2 Haiek. 81. ^
II. His power and duty as a mmijlerial officer.
This is prefciibed by Virginia laws page 134./?^. 21, 22.—
It will, therefore be iufficient to obferve that the jujl exception
to the ftieriffof a a unty, or lergeant cf a corpora,ion whuh
inually mal es it neceflaiy to diredt procefs to a coroner, is when
th • fherifr, or fergeant is a party interefled.—The coroner to
wh m the procefs is thus directed flai gs precifrly in the fdaadon
of the (heriff or fergeant in all u ings which the fnerid" cr
fergeant mignt or ought to have done.
Ill, His fees.
Dols. Cents
For taking an inquiGtion on a dead body!
(to be po.id out ot the eftate of the de- ( o
cm.fed) d the fame be fufScienr, if not j 2
by the county. J
For a 1 other buhnefs clone by him, as are /
allowed the ihciifF for tl el. m iervio-F, \
See r-.fuijed Led , page 227— /U; 313, fees on executions.
IV. Prcccd1 u ts,
Prccpt to fummon a jury.
To the {lieriff, or conftable of county.
County to wio
Them tre in the nume of the commomvsalth to command )oh to
busman tJLtn1)'j cu j>\e- holders cj this County ^or oj the panfb
CORONER. 141
of in this county) to appear before me one of the com-*
momcealtlfs coroners of the faid county, to morrow morning, bg
ten of the clocks (or on the day of ) at the hcufe of
(or the place where the body lies) in the county afo< efaia,\
to enquire of fitch things as Jhall be given to them in charge on the
behalf of the commonwealth, and you aifo be then there to Jheiv both
you have executed this warrant. Given under my hand this
day of
The jury appearing at ths appointed time and place, and the
body upon view before them, the officer is to make return of
his warrant, and call the jury, to the number of twelve, to an-
fwer; one of whom the coroner ilaould appoint the foreman,
and fwear in the following words.
Foreman's O A t h.
You Jhall diligently enquire, and true prefentment make, on he-
half of the commonwealth, how, and in vahat manner A D, (or
a perfon unknoiun, as the cafe is) her flying dead, came by bis
death', and ofJiich other matters relating* to the fame as (hall be
required of you, according to your evidence» So help you God.
The reft of the jury.
Such oath as the foreman of this inquejl, hath taken on
his part, you, and every of you, (hall well and truly obferve, and
keep on your parts refpeffively. So help you God*
The objects of the jury's confideration mayt'dfe found in the
above recited a£t; to thefe the coroner muft dire£t their atten-
tion, and when they have heard the teftimony the inquifition muft
be drawn up on a paper indented, agreeable to the fa£l, to
which the coronet and each of the jurors mufhput their hands
and feals.
The witneffes are then to be Called and fworn..
Oath of a witnefs.
The evidence which you foall gi^e to this inquefl, On behalf of
the commonwealth, touching the death of A I), Jhall be the truth
the whole Pruth, and nothing but the truth• So help you God.
Inquifition of murder,
£0 wit.
Inquifition indented, taken at in the county aforefaid, the
day of in the year of the commonwealth, be-
S. fere
14-2 CORONER.
fore mi' one of lhe coroners of the commonwealth, for the
county aforefaid, upon the view of the body of AD, late of (Sc.
then and there lying dead.\ and upon the oaths of ABC I), (Sc.
good and lawful men of the county aforefaid, {or of the parijh of
in the faid county ) who being fworn, and charged
to enquire, on the part of the faid commonwealth, wbe;y where,
how and after what manner the faid A D, came to his death, uo
fay, upon theip Oath, that one gentleman, late of the pa; ifi
of in the county of not having God before his eyes,
but being moved andJeduced by the injligation of the devil, on the
day of in the year of the commonwealth if or faid,
with force and arms, at in the county aforefaid, in and upon
the aforefa'd A D, then and there being in the peace of God, and
of the faid commonwealth, felonioufy, voluntarily, and of his ma-
lice foreihttught, made an ajjault j and that the aforefaid then
and there, with a certain jword, made of iron and feel, of the
value offive fillings, which he, the faid then and there held
in his right hand, the aforefaid A D, in and upon the Lfi part of
the belly of the faid A D, a little above the navel of the faid A D,
then and there violently, felonioufy, voluntarily, and of his malice
forethought, f ruck and pierced, and gave to the faid A D, then
and there, with the /word aforefaid, in and upon the aforefaid left
fart of the belly (f the faid A l3, a Utile above tl e navel of the
fai l A D, one mortal wound, of the breadth of half an inch, and
of the depth of three inches, of which faid mortal wound the afore-
Jaid A D, then and there injlantly died, and fo the faid then
and there felonioufy killed and murdered the faid A D, againf
the peace and dignity of the commonwealth> and the fain jurors
farther fay, upon theii oath aforefaid, that of &c. and
of were feloniouily prefent, with drawn fwords, at the tim£
' of the felony and murder aforefaid, in form aforefaid Committed,
that is to fay, on the day of in the year afore-
faid, at aforefaid, in the county afirefuid, then and there
comforting, abetting, and aiding ihe faid to do and com-
mit the felony and mm dcr aforefiJ, in manner aforefaid, againfl
the pace and dignity of the commonw .altb; and moreover, the
faors aforejaid, upm th-ir oath aforefaid, do fay, that the fail
had net, nor any of them had, nor as ya have or hath,
any goods or chattels, lands or tenements, within the county a fern-
faid, or flje-where, to ihe knowledge olthe faid jurors, (or, and
ihe jurors ojbefaid, upon their oath aforefaid, do fay, ih<t the
faid at the time of the doing and committing of the felony
and murder aforefaid, had goods and chattels, contained in the in-
ventory to this inquifition annexed) in witnefs whereof as well the
aforefaid coroner, as the jurors aforefaid, have to this inquifition
Put
CORONER. 143
put their feats, on the day and year aforefaid, and at the place
afore/aid,
AB.
CD.
E F, See. jurors.
A C, coroner.
Where one drowns himfclj\
ds above, to oath do fay, that the faid A D, not hav-
ing God before his eyes, but being fedueed and moved by the
ipftigation of the devil, at aforefaid, in the county aforefaid,
then and there being alone, in a common river there called
himfclf voluntari'y and fejonioufly drowned; and fo the jurors
aforefaid upon their oath aforefaid, fay, that the aforefaid A D,
in manner and form aforefaid, then and there himfelf voluntarily
and felonioufly, as a felon of himfeif killed and mu.dered, agaiuffc
be peace 6cc.
Where one dies a natural death.
that the faid A D, on the day of in the year
aforefaid, at the parifh and in the county aforefaid, to wit, at
>vas found dead; that he had no marks of violence ap,-
pearing on his body, uiaJ died by the vifitation of God, in .a
natural way, and not other wife. In witnefs &c.
Where the murderer is unknown.
that a certain perfon unknown, did kill and murder the
(aid See, and acid———a<->d the faid jurors, upon tneir oath
aforefaid, farther fay, that the faid perfon unknown, after he had
committed the bid felony and murder, in manner aforefild; did
By away, ag.Lilt the peace See.
Whyre one hangs himfeif.
as above, to not having God before his eye;, but
being fedueed and moved by the inftigation of the devil, at
aforefaid, in a certain wood, at aforefaid, Handing and be-
ing, the faid A D, being then and there alone, with a certain,
hempen cord, of the'value of three pence, which he then and
there.lud and held in his hands, and one end thereof, then and'
there put about his necic; and the other end thereof tied about
a bough of a certain tree, himieH then and there, with the
cord aroreiaid, voluntarily and felonicuily, and cf his malice.
' • aforethought.
144 CORONER.
aforethought, hanged and fuffocated; pand Ao the jurors afore-
frid, up m their oath aforefaid, fay, that the faid A D, then
and there, in manner and form aforefaid, as a felon, ofhimlelf,
dclomoufly, voluntarily, and of his malice afore-thought, him-
ftlf killed, flrangled and murdered again# the peace &c.
Jin inquifitioy on one for cutting his throat.
m' »■■■ . -by the inftfgation of the devil, at aforefaid, in the
county aforefaid, in and uponhimfelf, then and there being in
the peace of God, and of the faid commonwealth, felonioufly,
voluntarily, and of his malice fore-thought, made an affault;
and that the aforefaid A D, then and there, with a certain razor,
of the value of one penny, vyhich he the faid A D, then and
there held in his right hand, hicnfelf, upon his throat, then and
there felonioufly, voluntarily, and of his malice fore-thought, did
llrike, and gave to himfeif, then and there, with die razor afore-
laid, upon his throat aforeiaid one mortal wound, of the brta.ith
cf inches, and the depth, of , • inche®,'of which faid mortal
wound the faid A D, at aforefaid, in the county aforefaid,
jfcnguifhed, and languishing lived, from, the laid day of
in (he year aiorefaid, to the day of and that the faid
A D, on the . day of aforefaid, in the year aforefaid,
in the county aforeiaid, of that mortal wound died j and fo the
jurors aforefaid &c.
For killing another in his own defence.
■—-—upon their oath fay, that A K, late of gentleman, at
aforefaid, in the faid, county, on the day of in
the ' year of in the peace of God and of the common-
wealth then being, A hi, late of • in the county of at
the houfe of - , . in the afternoon of the lame day, did come
and upon him the faij A K, then and there of his malice fore-
thought, did make an affault, :anu him the faid A K, did then
and 'ihete endeavour to beat and kill, by continuing the affault
aforefaid, from the hcuie .of one,W H, in . aforefaid, to a
certain place called in the county aforefaid; and the faid
A K, feeing that the faid A M, was fo malicioufly difpofed, to
a certain . ; in the faid place, did flee, and from thence, for
fear cf death, could not efcape, and fo the faid A K himfeif, in
prcfervation of his life, again# the faid A M, continued to de-
fend, and in his own defence him the faid A M, upon the right
part of the breaff of him the faid A M, with a certain of
the pfic£ of one fhilling, which he the faid A K, then and there-
CORONER, 145
held in his right hand, did ftrike, then and there giving to the
laid A M, one mortal wound, of the breadth of " inches*
and of the depth of inches, of which faid mortal wound
the fuid A M dt aforefaid, in the county aforefaid, lan-
guilhed, and languifhing lived, from the faid day of
to the day of from thencenext enluing, and that the
faid A M, on foe faid 4-iy of in the year
aforefaid, at ^ • aforefaid, in the faid county, of that mortal
wound died, and fo the faid A K, did then and there kill him
the laid A M, in his own defence.
Inqufttion where the death was oceajioned by
chanccmedley.
that A B, late of the parifo aforefaid, in the county afore-
faid, labourer,, on the . day of • in the year aforefaid,
jit the parifo and in the county aforefaid, a certain gun of the
value of eight fhiliing?, then and there charged with gunpowder
and a leaden bullet, .which he the faid A B, then and there had
and held in both his hands, then and there cafually, and by
misfortune, and agajnft the v/ill of him the faid A B, difcharged
and lliot off} and:-that the faid A B, with' the leaden bullet
aforefaid, then and there difcharged and foot out of the faid gun,
by the foice of the gun powder aforefaid, ' him the faid C D, in
iind upon the left bread: of him the faid C D, cafually, by mif-
fortune, and againft the will of him the faid A B, did then and
there ftrike and penetrate^ 1 giving i^nto him the faid C D, then
and there, with the bullet aforefaid,' out of the gun aforefaid,
fo as aforefaid foot off and difcharged by the force of the faid
gunpowder, in and upon the faid left breaft of him the faid
C D, one mortal 'wound, of the breadth ■ of one inch, and the
depth of three inches} of which laid mortal wound he the faid
C D, then and there inffantly died; and fo the jurors aforefaid
upon their oath aforefaid, do fay, that the faid A. B, him the
laid C D, in manner and by the means aforefaid, cafually, and
by misfortune, and againft the will of him the'faid A B,
did kill and Hay} but what goods or chattels the laid A B, had
at the time of iuch killing and flaying by misfortune, as afore-
faid, the jurors know not. In witnefs *&c.
' Indidlmerit againft a coroner jor refujing to take
an inquifition.
The jurors for the [commonwealth upon their oath prcfent,
that on the . day of,, .. in the year of the com-
monweakb,
146 CORONER.
monwealth, one C D, at 111 thi coftnty of was
drowned and indicated in a certain pond, and of that drowning
and fuuocating fhe the faid C D, then and there inflantly died;
a-r.d that the body of the faid C D, at aforefaid, in the
county aforefaid, lay dead, of which one \V C, late of in
the coun-ty aforefaid, gentleman, afterwards to wit, on the faid
day of in the year aforefaid, then being one
of the coroners of the commonwealth for the county aforefaid,
at aforefaid, had notice: neverthdefs, the Did W C, the
duty of his office in that behalf not regarding, afterwards, to
wit, on the Did day of in the year aforefaid, at
aforefaid, in the county aforefaid, to execute Lis office of 2nd
concerning the piemifes, and to take inquifition for the com-
monwealih, according to the laws andcuitoms of this common-
Wealth, concerning the death of the Did C D, unlawfully, ob-
ftinately, and contemptir -ufly, did neglect and reffiD; and that
the faid W C, no inquifition in that behalf as yet hath taken,
to the great hindrance of juilice in contempt of the laws tf this
commonwealth, aiid againft the peace and dignity of the com-
jmonwealth.
Counterfiets.—See Cheats, Clergy^ and Felony.
CRIMINALS.
THIS title being of confiderable importance to magiftrates
and others concerned in criminal profecutions, and being
a term very comprehenfive in ltfelfj I (hall, in order to render
it as generally ufeful as poffible, infert under it a complete fet of
forniSy from the warrant to the indictment.
The aft cf A (Terribly by which the mode of proceeding in
criminal cafes is pointed out, is now collected in the' Revijal
Code, chap. 74. page 109. to which it will be fufficient tcj refer.'
if the offender is not already apprehended by fome of the
means mentioned under title arref%- the' magiftrate fhould i/Tu'e
his warrant directed to the fherijf or (molt commonly) to the
conflable, commanding him to bring the party accufed before
him, or fome other juftice of the peace, to anfwer the accufationj
or he may direct it to a private perfon, tho' it is faid, he is not
compellable to execute it. See titles 1 Arrejl * and 1 Warrant.'
(A) Form cj a iv arrant.
county to wit.
Whereas A J, of hath this day given information upon
' oath
C R I M I N A L S.
'147
oath to me J Pj a jujlice of the peace for the fail county of
that on the day of lajl pajl, at the county of
aforefaid, AO, of labourer, (ljere defcribe the offence)
Theje are therefore in the name cf the commonwealth to require
pu, to apprehend the faid A O, and to bin* him before me^
or fame other jujlice cf the peace for this county, to avfwer the pre*
vtifeSy and further to be dealt with according to law. Given un-
der my hand and fea/, at the county of aforefaid, this.
day of in the year and in the year of the com*
monwealtk.
To conflable.
•Thejuftice, before whom the prifoner is brought, is bound
immediately to examine the circumilances of the crime alleged.
4 Blacks 296.—But the power of examining the piifoncr hind-
fdf and committing his examination to writing ft-enis not to b£
recognized by cur laws. This authority was granted by a ffa-
tute of England of Ph. &c M, which not having been adopted
by our legiilature, is confequently not in force. See F. 1 p.
302. fed. 3. of the Re'oifed Code.—And that thefe proceedings
are repugnant to the common law, will appear not only from
Lombard (Eirenarch. b. z. c. 7 .) where he obferves that, it was
the frfl warrant given for the examination of a felon in the En-
giijh law. but from judge Blackjlone, who lays, that at the com-
mon law, no man was bound to b tray bimflf'.* and his fault
was not to be wrung out cf himfelf, but rather to be difcovered
by other means and other men, S<?* 4 Blacks 296.
The iuftitution of a court of examination for prrfons charged
with criminal offences, previous to their arraignment and trial
by a juiy, and veiling that court with an abfflute and conclu-
five power of acquittal, is peculiar to the laws of this common-
wealth; and it muff be acknowledged is a very great improve-
ment, on all other mcdes of criminal profecution. Thus-may
the rafhnefs or ignorance of a fingle magiffrate be coi reeled
without putting either the party acculed or the commonwealth
to the expence and delay of a regular ttial by jury; and thus is
there afforded td the party another opportunity of acquittal, un-
known in almoff any other country. • ,
The practice of taking the in,'or,nation of the vaitneffes in writ-
ing, by thejuftice, depends on the fame ffamte ci Ph. h M.
above mentioned, (See 4 Blacks 296,) and rot* the realbns iuit
mentioned, I conceive, is not in force in this country.—Other
reafons may alfo be urged in oppoiltion to the practice.— iff,
The a£l of Aiiembiy requires nothing more of a magiilrate, af-
ter
* nemo tenebatur procure Jeipjum»
CRIMINALS.
ter he has formed his opinion as to the guilt of the party, than
that he fhall take the recognizance of the witneftes, preparatory
to the calling of a court of examination. See V. I. />. 109 .Jeff. 1.
2d. The power of taking the information of thewitneftes which
was granted by the ftatute of Ph. & Mary, to a fingle magif
trate, is transfered by our laws to the court.of examination,
confifting of four magijlrates, at leaft.—3d. The dotrine laid
down in the books, that the examination of a ivitnefs taken be-
fore a magiftrate in purfuance of the above ftatute, may be read
againft a criminal in cafe of the death of the witnefs, or his in-
ability to attend, is liable to thefe objections;—that the prifoner
may be concluded by evidence however objectionable the witnefs
may be in point cf intereft, guilt &c. and that the accufed party
has not the fame advantage of crofs examination, which he
would poftefs before a court, with the affiftance of counfel.
If witneflcs are neceflary to eftablifh the fact, the magiftrate
may iftlie a fummon for them.
fB J Summon for a witnefs.
county to wit.
To the fheriff of the county of or the conftable of
in the faid county.
Whereas oath hath been made before me J P, one of the com•
tnonwealth's juftices of the peacefor the county afore [aid, by A I,
that the /lore- houfe of the faid A I, was lately broken open, and
fundry goods Jlolen thereout for other fats, as the cafe is) and
that he hath good caufe to believe that A W, is a material witnefs
to prove by whom the faid felony was committed'. Phcfe are there-
fore, to require you to caufe the faid A W, forthwith to come be-
fore me^ to give fuch evidence as he knotvs concerning the faid of
fence. Given under my hand andfeal &c.
(C) Recognizance of the witnefles.
county to wit.
Memorandum, that upon this day of in the year
and in the year of the commonwealth, A W, of
tsc. and B W, of Cfc. came before me ] P, one of the
commonwealth's jufices of the peace for the county aforefaid^ and
each of them cf his proper pbrjon acknowledged himfelf indebted to
A G, efquire, governor or chief magi/Irate of the commonwealth
of Virginia, and his fuccefjors, in the fum of dollars to be
Uvisdfever ally of eacb of their goods and chattels, lands and te-
nemer.t,
CRIMINALS.
14.9
nements, refpeflivelyy to the ufe of the faid commomveahb ; upon
condition that if each of them, do perjonally appear before the torn-
nonwealth's jufices cf the peace fr the jaid county of on the
day of at a court by the on to be held for the cxami-
nation of AO, &c. and Jo then and there, on behalf of the Said com-
momvealthy give fuch evidence as he kneweth againft the fall A G,
concerning the matters wherewith he is charged, and that ne< her
he., nor either of them, do depait without leave of the fair couriy
then this recognizance to be void, *lfe to remain full iorce.
If a witnels refutes to ei.ter into a recognizance, he may be
committed, or bound to good behaviour. I H. H. 586.
(D) Mittimus.
county to wit.
To the theriff {or any corf able) of the (hid county, and to
the keeper of the jail of the fiid county.
Thefe a^e to command you the Jit I jlerljf{or confiuble as the
cafe m y be) in tb>- name of the commonivtaaf to convey and dc-
liver into the cujhdy of the fail keeper of the fiid jail, the body of
A O, late of&c. charged before me with oY. (here fpecify the
offence particularly, for which the description in the indictment,
under the title to which the offence buiongs, will general y be
the beft guide) And you the faid jailor, are hereby required to
receive the faid A O, into your jail and cufodyy and him there
fafely to keep, till he fall thence be difcharged by due courfe of laiv.
Given under my hand and fat, this - day of in the
year and in the year of the comm. nivcalth.
The power of a iheriff to imptefs a guard for the fafe keep-
ing of a criminal in jail, with the allowance to fuch guard, and
mode cf payment, may be found in the Rev fed Codey page 130.
J'et7.- 21.
fEj Warrant for fuuimonhig a court.
county to wit.
To the fheriff of the faid county.
Whereas A O, late oflsc. -was this day committed to the jail
of this county, by my warranty it appearing ro ?ney that the fell -
nious offence wherenith he Hands chaegedy owe hi to be <xa mined
into by the county court; thereforey on behalf cf the commonwealth^
1 require you that you jummon the jufices of your jaid county to
meet at the court-houfey on the aay of and then and
there to hold a courtjor the examination of the faddy uitb which
150 CRIMINALS.
thi faid A O, /lands charged, andfor fuch other purpofes concern-
ing the premifeSy as is by law required and directed \ and that
)0u have then there this warrant. Given &c.
7'he fheiiff fhould be very particular in his obedience to this
warrant
To this court the juftice is to return the recognizance of the
witnefies.
fPj Recognizance of bail, where the prifoner is
bound over to the next grand-jury.
A O, of &c. labourer, B B, of &c. and C B, of Sic. feve-
rally acknowledge themfelves indebted to A G, efquire, governor
or chief magiftrate of this commonwealth, and his fuccelTors,
that is to fay, the faid A O, in dollars, and the faid B B,
and C B, in dollars each, to be levied of their feveral
and refpe&ive lands and tenements, goods and chattels, to the
ufe of the faid commonwealth, in cafe the faid A O, fhall fail
to appear perfonally at a court to be held for this county, on
(theprjl day of the next quarterly court) then and there to an-
fwer an indiitment to be perfered to the grand jury, againft the
faid A O, for petit larceny, (or other offences, as the cafe is)
whereof he ftands charged; or in cafe fo appearing he fhall de-
part without leave of the court.
(Gj Recognizance of bail, where the prifoner is
fent for further trial to the diftriB court,
but is, in the opinion of the court of
examination, bailable.
county to wit.
Be it remembered, that on the day of in the year
and in the year of the commonwealth, A O, of
labourer, A B, of yeoman, and B B, of
yeoman, came before me J P, one of the commonwealth's juf-
tices of the peace lor the county of aforefaid, and leverally
acknowledged themfelves to owe and be indebted to A G, ef-
qa>re,' governor or chief magiftrate of the commonwealth of
Virginia, and his fuccelTors, that is to fay the faid A O, in
{the fum mujl exaSlly correfoond with that directed l.y the
court of examination) and the faid A B, and B B, dollars
eac.n, to be refps&ively levied of their lands and tenements,
g >ids and chattels; yet upon this condition, that if the faid A O,
ihall make default in performance of the condition under written:
The
CRIMINALS. 151
The condition of this recognisance is fuch that if the above
bound A O, (hall perfonally appear before the commonwealth's
judges of the diftricB: court, appointed by law, to be holden at
on the firft day of the next term, then and there to an-
fwer to the faid commonwealth, for and concerning (here recite
the offence) wherewith the faid A O, flood charged before the
commonwealth's juftices of the peace, for the faid county of
at a court held for the examinatien of the faid A O, on the
day of laft paft, who were of opinion that the faid A O,
ought to be tried for the faid offence in the diftridt court, and
that he was by law bailable for the fame, as appears to me of
record; and if the faid A G, (hall alfo then and there do and
receive what lhall by the faid court be ordered and adjudged,
and fhall not depart thence without the leave of the faid court,
then this recognizance (hall be void, elfe (hall remain in full
force.
Acknowledged before me.
Where a prifoner is bailable in the opinion of the court cf
examination, and that opinion (hall be entered in their proceed-
ings, with the fum in which he (hall be bound, fuch bail may be
taken before a magiftrate at any time within twenty days, after
the court of examination is held, or by a judge of the general
court, at any time afterwards. See V* /, page lOq.jefl. 2.
(HJ Recognizance of bail taken before a judge
of the general court, after the offender is
committed to the dijiridi jaiL
Ee it remembered that on the day of in the year
and in the year of the commonwealth, A B, of
and B B, of perfonally came before me J J, one.
of the judges cf the general court, and took in bail until the
next diftridt court appointed by law to be holden at one.
A O, of labourer, committed and now detained in the
jail of the faid diftricSt court, by virtue of a warrant under the
hands and feals of J P, and J P, two of the commonwealth's
juftices of the peace for the county of for the felonious &c.
(here deferibc the offence) for which faid offence, at a court
held by the commonwealth's juftices of the peace for the laid
county of on the day of laft paft, for the ex-
amination of the faid A O, it was the opinion of the faid court,
that the faid A O, ought to be tried in me ciiftrLct court, and
that he was by law bailable for the fame, as appears to me of
record; and the (aid A B, and B B, took upon themtelvcs each.
fsverally
J52
C R I M I N A L S.
frvcrslly, under the penalty cf dollars lawful money
of Virginia, of the goods and chattels, lands and tenement,
of them and each of them, to the ufe of the commonwealth,
to be levied, if the faid A (), (hall not perfonally appear at the
next nittriff cout appoin ted by law, to be holden at
to anfwer concerning the felony afurefaid, according to the
laws of this commonwealth.
Taken and acknowledged before
me, the day and year firfl
above written.
The above recognizance is to be tranfnitted by the judge to
the clerk of the diftrict court, and thereupon a warrant iliued
for the prilbner's deliverance. SeeJcit. 2.
(I) IVarrant for the deliverance cf a prifiner
bull able by Lzu\ but detained in the dijirkt
jail jor 10ant of bail.
J J, one of the judges cf the general court, to the keener of
the jad of the cUUriht court, appointed by law to be holden at
grueling. Forasmuch as A (J, late of the county of
labourer, hath before me found fudicient fureties to ap-
pear before the judges of the diffrid court, appointed by W,
to be holden at on the firft day of the next fucceeding
court, to anfwer fuch tnjngs as fhall then and cheie, on the be-
half of the commonwealth, be objected againft him, and namely to
the felonious Sec. (here dcfcri.be the ojjince) for which offence, the
laid A O, was committed to the faid jail, by warrant under the
hands andfeals of J P, and J P, two of the juftices of the peace
for the county of (the court held for the examination of
the fact, with which the laid A O, flood charged, on the
day cf iaft pad, at the faid county of being of opi-
mon that the faid A O, ought to be tried for the faid offence,
in the diftrict court, and that he wa- by law, bailable for the
fame, as appea-s to me of record!) You are hereby commanded
in the name of the commonwealth, that if the f id A O, do
remain in your faid jail, for the faid caufe, and for none other,
then you forbear to detain him any longer, but that you deliver
him thence, and fufftr hirn to go at large, and that upon the
pain that will th-rcon enfue. Given undtr my hand and feai
See.
A priibner may alfo be bailed by any two judges cf the ge-
neral court, when it is not fitting, tuc* the ccurt of exrmir.a-
tion may have been of a different opinion, (V, L />. 109. jcti. 3 )
The
CRIMINALS.
^53
The form of the recognizance, and warrant for difcharge,
in fuch cafes, may puriue the two latt, with fuch variations as
will readily occur to a judgey by whom they are to be executed.
fj) Mittimus to the di/lriSt jaiL
To the Jberiff of the county of and to the keeper of the jail
of the dijlridt court, appointed by law to be holdcn at
county to wit.
Whereas, at a court held by the commonwealth's juftices of
the peace for the laid county of on the day of laft
palt, for the examination of A O, late of &c. then a pti-
foner in the jail of the faid county, chaiged with the felonious 6cc.
(here recite the offence) it was the opinion of the faid court that
the faid A O, for the faid felony, ought to be tried in the dif-
tricl court, and thereupon he was remanded to the jail of the
county aforefaid as appears to us of record: VVe J P, and J P,
two of the commonwealth's juitices of the peace for the. laid
county of hereby require and command you the faid the-
riff, on behalf of the commonwealth, that you forthwith remove
the body of the faid A <), from : our jail aforefaid, and him lately
convey to the public jail of the diftrict court appointed by lav/
to be holtlen at and there deliver to the keeper of the faid
public jail, together with this precept. And we authorize and
empower you the faid fheriff, as well within your county, as
in all other counties thro' which you pafs with your laid prifoner
legally to impreis fuch and fo many men, horfes, and boats, as
fhall be neceffary for the guard and fafe conveyance of your faid
prifoner, to the jail afore laid. And we charge and command
you, the keeper of the faid public jail, to receive the faid A O,
into your jail and cuftody, and him there fafely to keep, until-
he ihall be thence difchurged by due couife of law. Given un-
der our hands and feals at in the county of afore •
faid, this day of in the year and in the
year of the commonwealth.
The (heriff delivering the prifoner to the jailor, fhould take
a receipt for him in the following form.
4 Received into the public jail the body of A O, late of &c.
committed lor felony by warrant of and juitices of
the pe£>ce for the county of and delivered into my cullody
by the Uieriff of the lame county.'
A K, keeper PJ,
The law which authorizes the fheriiF to imprefs men, horfes,
&c. for the conveyance of criminals, and dircbls him to proceed
therein as in cafes of other impreflos, feems only to conhne his
proceedings
*5 4
CRIMINALS.
proceedings to the valuation of the property, and not to the a!-
lowance for the ufe of it; which allowance is to be made by
the county courts, in the months of September or October an-
nually. See V. I. p. ill. feci. 14.—If the \ operty is. 1 .it, then
the valuation, wnlumt the allowance for rue uf; is tu be certi-
died tfl» the auditor for payment, See VI. c. 14b. § 16. p 29,8.
So that it appears fiom a view of tfv ie two atle, that if the
properl y is loft the valuation only, made by t o freeholders,
without" any allowance for the ufe is to be p^id by the auditor;
but if not loft, then the allowa>ice for the up' is to be paid on a
certificate of the clerk of the court, made at a September or Oc-
tober court.
(KJ Form of the valuation made by two or
more freeholders.
We A F, and B F, two freeholders of the county of
having been appointed by the flieriff of the county of
to value a horl'e this day imprefled by the fa»d lheriff, from A
Al, of for the purpofe of conveying a criminal from the
jail of the faid county of to the jail of the diftrict court,
appointed by law to be holden at and having been firft duly
fworn to appraife the faid hcrfe, do value him at dollars,
Certified this day of &c.
A F.
B F.
(Lj Sheriff's Certificate•
41 do hereby certify that I had a horfe the property of A M,
of the county of days, for the purpofe of conveying a cri-
minal, viz. A O, from the jail of the county of to the jail
of tile diftricl court, appointed by law to be holden at
Certified this da) cf A S.'
This certificate fhould be prefented by the owner of the horfe,
to the court of the county, having jurifdidlion of the examination
and trial of the criminal, at a September or October court, who
will make the neceiTary allowance.
(M) IVarrant to convey a ailprit from the
county in which he is arrefled, to that in
which the fiadl was committed.
county to wit.
To the fieriff of the faid county.
Whereas A O, late of labourer, hath this day been
arretted,
CRIMINAL S.
arretted, and brought before me J P, one of the comr Ron-
wealth's juttices of the peace, for the fa id county of I on
fufpicion of otc. (here recite the cffence) (or chargid on ' oath
h A J, of with Wr. as the cafe may be) and it ap Ipear-
ing to me that the offence wherewith the laid A O, i bands
charged, was committed in the county of : ' Thcfe
are therefore to command and require you, in the name c >f the
commonwealth forthwith to convey the fa id A O, to th e faid
county, and there deliver him to feme juftice of the per i.ce for
the laid county, to be dealt with as the law diredts. < piven
tinder my hand and feal, this day cf in the ye: ir &c.
The flieriff" in executing this warrant, has the fame po |pver as
to impreffing men, horfes, <kc. as in conveying prifoner s from
the county to the diftridt jail, the fcr*ns in v/hicn cafes h; ive al-
ready been given. And as he has alfo the fame allokvar- ce per
mile, it feems neceflary that the magiftrate to whom he c ielivers
the prifoner, fhould give him a receipt for the fame, inv yhich it
may not be improper to certify the diffance of the xc fraoval,
that the court to which the claim is made may be ii iformed
what allowance to make.
(N) Receipt oj the Magiftrate.
county to wit. I
This is to certify that A S, fheriff of the county c 'f
did this day bring before me J P, a juftice of the peac |e for the
county of a certain A O, late of &c. ai jTefted in
the faid county of on fufpicion of felony, and by warrant
from J P, one of the juftices of the peace for the faid . county,
dire&ed to be conveyed to fome juftice of the peac in this
county, it appearing to the faid J P, that the fadt, v. herewith
the faid A O, was charged was committed in this cou. lty. And
I do alfo certify, that the diffance, in my opinion, ^ vhich the
faid A Q, was conveyed by the faid A S, is mi' ,es. Gjv-
en &c.
The keeper of the diffridt jail may, by order of tw > juftices
of his county, imprefs a fefficient number of guards f >r the fare
keeping of the priloners committed to his care. P. I. p. 83.
Order oj the jujitces.
county to wit.
Whereas J R, keeper of the diftriJb jail, at F, Y ath given
information unto us J P, and K P, two of the juffi ces of the
peace for the county of aforefaid, that the laid jail is in-
fuIHcient for the fafe keeping of the prifoner, (urprifoi lers) now
coi omitted
CRIMINAL S.
com: r.itted thereto, and hath made application to us for our
warrant to authorize the imprefiing of a fufhcient guard for
thatpurpofe: Thefe are therefore, to authorize the fa id J R,
to irr prefs fuch a number of guards, as will be fuflicient to keep
fafely the prifoner, (or pnfcners) now committed to his care;
and'for fo doing this {hall be his warrant. Given &c.
J P.
KP.
Th c foregoing precedents feem to be all that are necefiary
under this title, many of which, indeed, are to be found in va-
rious pirts of this book, adapted to rhe particular cafes to which
thev b t long. The formal and conlrituent parts of IndUinunti,
will b. t found under that title.
Tht i proceeds gs on the trial of Raves, which have been con-
fideral |y altered iince Mr. Starke wrote, are to be found under
title 4 Slaves, to which I muft refer.
For the rules in allowing clergy to flaves fee title' Clergy.'
The charges of profecuting criminals are to be paid out of
their el late, if convi£ied, if not by the public.
Cursing, See c SWEARING/
Dhist, (for jums under five dollars) See WARRANTS.'
Ditr-tors, abjeonding, See ' ATTACHMENT.'
Dkbtors inlolvfnt, (See INSOLVENTS.J
De ceit, See ' CHFATb.'
D E O D A N D.
r,.FC ID AND, (from deodandum, .i e. given to God) is when
an y moveable thing inanimate, or beaft animate, doth
move to, or caule the untimely death of any reafonable creature,
by mile' i:mce, without the wiil or fault of himfelf, or of any
ether pur/on. 3 Irjl. 57, 1 Blacks Com. 300.
As this; lubjed: exiRed under the common law, it mi^ht beim-
proper to pals it over in nlence; the' it feems to be virtually
abnlilhed I-y the 9th article of the conRitution of this St..te. 1
ih .11, ho fc/ever, only observe, that it originated in the pious,
tho' rcdie ahous luperliixm ol our Luropean anceilors, who,
while the>r believed that remii7ion of lins might be obtained
i<>r rhe lou Js ol the decealed, appropriated the inilrument which
e cvahont lan untimely death to the purchafe of inalfes, lortheufe
cf Cue foul,, thus prematurely hurried out of exiRence. Rut this
u ... .tai b. ring forfeited to the king's almoner, to be applied by h.tn
to thci: Rous ties, it was feoti ccnRdered as ens of the c.Rial
revenues
D E O D A N D. i5;
revenues of the crown, and by the king granted, as other
franchifes, to lords of manors. Thus is mis infamous practice
continued to this day in Fngland, by the king and thofe lords
to whom the right of deodands was granted, as a mean to "rob
the widow and orphan of the <«lec< afed perfon% property, when
the reafon for doing it had long ceafed. The juries, however,
of lace have greatly difcounlaianced this bun'nefs, By tinning
fome very inconfiderabie part of the property, (as the wheel or
a waggon &c.) the caufe of the death j and as no forfeiture, in
this cafe, can accrue, till the coroner's inqueft has found ;h,.t
the ohjedl occalioned the death, conttquendy no part is foxier reel'
except that fo found.
Disorderly- houses, {See LEWDNESS.)
Distress, {See RENTS.)
Doors breaking open, {See ARREST.)
Dower, {See FORFEIT . RE.)
Driver, (Sr* CATTLE.)
Drunkenness, {See SWEARING.)
Duelling, {See HOMI.TDKX
Embracery, {See MAINTENANCE.)
E ' S C A F E;
AN efcape is, where onb that is arretted gaineth his liberty
before he is delivered by courfe of law. Terms de la ley.
Elcapes are of three kinds, ift. E>y a perfon who hath thQ
offender in his cuftbdy; this is properly called an efcape. 2d.
Caufed by a ftranger; this, is commonly called a refcue. 3d. By
the party, himfelf; either without force,, which is limply an ef-
cape, or with force, v/hich is pr if on breaking. Re/cous and pri-
Jon breaking are treated of under their refpebtive titles, and this-
title treats only of efcapes properly fo called. Concerning which-
will be Ihewn,
I. Of escape by the party himself,
IL Escape suffered by a private person.
Ill, Escape suffered by an officer.
IF, What is a voluntary, and what a negli-
gent escape*
V. Concerning the retaking of a person escaped,
FI, Indictment for an escape,
U. VII.
ESCAPE.
VII, Trial and conviftion for an escape,
VIII, Punifment of an escape,
IX, Of escapes in civil cases.
A*. Escape warrants,
I. Of efcape by the party himfelf.
i t
As all perfons are bound to fubmit themfelves to the judg-
ment of the law, and to be ready to be juftified by it; whoever
in any cafe refufes to undergo that imprifonment which the law
thinks fit to put upon him, and frees himfelf from it by any aij»
tifice, before fuch time as he is delivered by due courfe of law,
is guilty of an high contempt, punifhable with fine and impri-
fonment. 2 Haw. 122.
But efcape committed by the party himfelf, belongs more pro*
pe'rly to the title prifon breaking.
II, Escape suffered by d private person.
It feerns to be a good general rule, that wherever any perfon
hath another lawfully in his cuftody, whether upon an arreft
made by himfelf or by another, he is guilty of an efcape, if he
luffer him to go at large, before he hath difcharged himfelf of
him, by delivering him over to fome other who by law ought
to have the cuftody of him. 2 Haw, 138.
And the law is generally the fame in relation to' efcapes fuf-
fered by private perfons, as by officers. 2 Haw. 138.
Ill, Escape suffered by an officer.
In order to make an efcape, there mull be an a£tual arreft,
and therefore if an officer having a warrant to arreft a man, fee
him fhut up in a houfe, and challenge-him as his prifoner, but
never actually have him in his cuftody, and the party get free,
the officer cannot be charged with an efcape. 2 Haw. 129.
And as there muff be an adftual arreft, fuch arreft muft be?
alfo juftifiablej for if it be either for a fuppofed crime, where no
fucti crime was committed, and the party neither indidled nor
appealed, or for fuch a flight fufpicion of an adtual crime, and
by fjch an irregular mittimus as will neither juftify the arreft or
irrprifonment, the officer is not guilty of an efcape, byfuffering
the prifoner to go at large. 2 Haw. 129.
And as the imprifonment muft be juftiflablej fo it muft be
alfo for a criminal offence. 2 Haw, 129. Alfo
ESCAPE. 159
Alfo if a prifoner be acquitted, and detained only for his fees,
it will not be criminal to fuffer him to efcape, tho' the iudg-
ment were, that he be difcharged paying his fees, fo that till they
be paid, the firft imprifonment continued lawful as before j for
inasmuch as he is detained, not as a criminal, but only as a
debtor, his efcape cannot be more criminal than that of any
other debtor. Yet if a perfon convicted of a crime, be con-
demned to imprifonment for a certain time, and alfo till he pay
his fees, and he efcape after fuch time is elapfed, without paying
them, perhaps fuch efcape may be criminal, for that it was part
of the punifnment that the imprifonment be continued till the
fees fhould be paid; but it feems, that this is to be intended
where the fees are due to others as well as 4to the jailor, for
otflerwife the jailor will be the only fufferer by the efcape, and
it will be hard to punifh him for fufFering an injury to himfelf
only, in the non-payment of a debt in his power to releafe. 2
'Haw. 129. 130.
Alfo, it is an efcape in fome cafes, to fuffer a prifoner to haye
greater liberty, than by the law he ought to have; as^to admit
a perfon to bail, who by law ought not to be bailed, but to be
kept in clofe cuftody. 2 Haw. 130.
So if a jailor, or other officer, ftiall licence his prifoner to go
abroad for a time, and to come again; this is an efcape, becaufc
the prifoner is found out of the bounds of his prifon, tho' the
prifoner return again, according as he fhall be prefcribed. Dalt«
*59-
If the jailor fo clofely purfues the prifoner who flies from him,
that he retakes him, without lofing light of him, the law looks
on the prifoner f® far in his power all the time, as not to adjudge
fueh a flight to amount at all to an efcape; but if the jailor once
loft fight of the prifoner, and afterwards retake him, he feems
in ftrieknefs to be guilty of an efcape* And if he kill him in
the purfuit, he is in Ijke manner guilty of an efcape, tho* he
never loft light of him, and could not otherwife take him; be-
caufe the public juitice is not fo well fatisfied by the killing him
in fuch an extrajudicial manner. 2 Haw. 130.
IV. What is a voluntary, and ivbat a
negligent escape.
Wherever an officer, who hath the cuftody of a prifoner,
charged with and guilty of a capital offence, doth knowingly
give him "his liberty, with an intent to fave him from his trial
or execution,' this is a voluntary efcape. 2 Haw. 130.
A
ESCAPE.
A negligent efcape is, when the party arretted or imprifoned
doth efsape, againft the will of him that arretted or imprifone J
him, and is not frettily pitrfued and taken again, before he hath
lott the fight of him, Dalt. c. *59.
If the conttable or other officer Ihail voluntarily fuffer a thief,
being in his cuttody, to go into the water to drown himfelf,
this tfcape is felony in the conttable, and the drowning is felony
in the thief: Othcrwife if the thief fhall fuddenly, without the
affiant of the conttable, k'll, hang, or drown himfelf, this is
but a negligent efcape in the conttable. Dalt. c. 159.
V. Concerning the retaking of a person escaped.
If an officer hath arretted a man by virtue of a warrant, ard
then taketh his promife that he will come again, and fo letteth
him goj the officer cannot, after arrett, take him again by
force ■ f his former warrant, for that this vvas by the conttnt of
the officer: But if he return, and put himfelf again under lire
cuttody of the officer, it feems that it may be probably argued,
that "he officer may lawfully detain him, and biing him before
the juftice in purfuance of the warrant. Dalt. c. 169. 1 Haw.
Si*
But if the party arretted had efcaped of his own wrong with-
out the confent of the officer, now upon freffi fait, the officer
may take him again and again, fo often as he efcapeth, although
he were out of view, or that he fhal). fiy into another town or
county, and bring him before the juttice, upon whofe warrant
he was fir ft arretted. Dalt. c, 169.
And it is faid generally in fome books, that an officer who
hath negligently fufFered a prifoner to efcape, may retake him
wherever he finds him, without mentioning any frefh purfuit;
and indeed fince the liberty gained by the prifoner is wholly
owing to his own wrong, there feems to be no reaion he fhould
take any manner of advantage from it. 2 Haw. 131. 132
And wherever a perfon is lawfully arretted for any caufe, and
afterwards efcapes, and fhelters himfelf in. an houfe, the doors
may be broke open to take him, on refufal of admittance. 2
Haw. 87.
It is perhaps the better opinion, that wherever a prifoner, by
the negligence of his keeper, gets fo far out of his power, that
the keeper lolies fight of him, the keeper is puniftiable for the
efcape, notwithftandmg he retook him immediately after: And
it is clear that he cannot excufe himfelf from an efcape, by kil-
ling a prifoner in the purfuit, tho' he could not poffibly retake
him, but mutt in fuch cafe be content to fubmit tofuch punifh-
ment, as his negligence ffiall appear to deferve. 2 Haw. 132.
ESCAPE.
VI, hidithnent for an escape,
It Teems clear that every indi&ment (A) for an efcape whe-
ther neghgent or voluntary, muft exprefsly (hew, that the pri-
(oner was actually in the defendant's cuftody for fuch a crime;
and that he went at large: And if for a voluntary efcape, that
the defendant felonioufly and voluntarily fuffered him .to go at
large; and muft fet forth, not the felony in general, but the
particular kind of felony: But it feems queftionable, whethcg
fuch certainty, as to the nature of the crime, ■ be neceflary in an
indictment for a negligent efcape; for that it is .not material in
this cafe, whether the pejfon who efcaped were guilty or not.
2 Haw, 133. 229.
VII. Trial and convillion for an escape,
If the prifoner be of record in a court, and the jailor being
called, cannot give an account where he is, this is a cortvidticn
of an efcape; but feems not a conviction of a voluntary efcape;
unlets the jailor conf?iIeth it: And the jailor may be fined in
iach a cafe; but not conviCted of felony, without indictment or
prefentment. 1 II II 599. 603.
And it feems to be clear, that a keeper who voluntarily fuf-
fers another to efcape, who was in his cuftody for felony, can-
not be arraigned for fuch an efcape as for felony, until the prin-
cipal be attainted, for that the felony of the prifoner (hall not be
tried between the commonwealth and the keeper, becaufe the
prifoner is a ftranger thereunto, yet he maybe indiCted and tried
for a mifprifton, before the attainder of the principal offender. %
Haw. 135. 2 In/I. 591. .592.
VIII, Punifmcnt of an escape.
If a felon efcapes before an arreft, it is not puniihable in him.
as felony; but.for the flight he forfeits his goods when prefented.
Hale's PL in.
If a private perfon arreft a felon, and he efcape by force from
him, the townfhip {hall be amerced,, but it feems it excufeth the
party, becaufe he cannot raife power to afiift him, but if a cen-
liable or other officer hath the cuftody of a prifoner, bringing
him to the jail, it feems that a fimple efcape by the refeue of the
prifoner himfclf, doth not wholly excufe him, becaufe he may
take fufficiertt ftrength to his aififtar.ee. 1 H II. 601.
Wherever a perfon is-found guilty upon an indictment or
prefentment of a negligent clcape of a criminal actually in his
cuftody,
i6z
ESCAPE.
cuffody, ke is punifhable by fine and imprifonment, according
to the quality of the offence, z llavj. 156. 139. 1 H. H. Ceo'.
604.
. And it feems to be the better opinion, that the fheriff is as
much liable to anfwer for a negligent dcape fuffered by his bai-
Iiff, as if he had adbualiy fuffered it himfelf, and that the court
may charge the fheriff" or bailiff" for inch an efcape; and if a de-
puty jailor he not fufficient to anfwer a negligent efcape, his
principal muff anfwer for him. 2 Haw. 135.
If a prifoner for felony break the jail, this feems to be a ne-
ghgent efcape in the jailor, becaufe there wanted either that due
ffrergth in the jail, that fhould have fecured him, or that due
vigilance in the jailor, or his officers to have prevented it; and
therefore it is lawful for the jailor to hamper them with irons to
prevent their efcape, for if a jailor might not be punifhed for
this as a negligent efcape, they would be caielefs either to fe-
cure their prifoners, or to retake them that efcape. I H. H.
601.
It fecrns to be generally agreed, that a voluntary elcape. fuf-
fered by an officer, amounts to the fame kind of crime, and is
punifhable in the fame degree, as the offence of which the party
was guilty, and for which he was in cuftody, whether it be
trcafon, felony, or trefpafs. 2 Haw. 134.
But yet a voluntary efcape is no felony, if the acl done were
not felony at the time of the efcape made, as in cafe of a mortal
wound given, and the party not dying till after the efcape ; but
the officer may be fined to the value of his goods, Dalt. c. 159.
Alfo, a voluntary efcape fuffered by one who wrongfully takes
upon him the keeping of a jail, feems to be punifhable in the
fame manner, as if he was never fo rightfully intitled to fuch
cuffody; for that the crime is in both cafes of the fame ill con-
fequence to the public; and there feems to be no reafon that a
wrongful officer fhould have greater favour than a rightful, and
that for no other reafon but becaufe he is a wrongful one. 2
Haw. 134.
But it feemeth to be clear, that no one is punifhable as for
felony, for the voluntary efcape of a felon, but the perfon only
who is a&ually guilty of it; and therefore that the principal
jailor is only fineable for a voluntary elcape fuffered by his de-
puty; for that no one fhali fufFer capitally for the crime of ano-
ther. 2 Haw. 135.
And therefore, altho' in all civil caufes, the fherifFis to be
refponfible, or the jailor at election, yet if the jailor do volun-
tarily fuller a felon in his cuffody to efcape; this, inafmuch as
it reacheth to life, is felony only in the jailor, that was imme*
diately
ESCAPE.
163
diately trufted with the cuftody, and not in the fheriff. 1 H. H.
597*
For the efcape muft be voluntarily permitted in him that per-
mitted it, which could not be in the high lheriff, tbo' it wete
fuch in the jailor, for he was not privy to it, and therefore could
not do it fclonioufly; but it was a negligent efcape in him, in
trufting fuch a perion with the cuifocy of his prifoners, that
would be falfe to his truft, and therefore the fheriff iball pay,
but not corporally fuffer for the mifcarriage of his jailor. 1 H.
H. 597. 598- ' .
But altho* the felony for which a man is committed be not
within clergy; yet the perfon who voluntarily luffers him to
efcape, fhad have the benefit of clergy. 1 H. H. 599.
The power of a fheriff and jailor to imprefs guards, in order
to prevent the efcape of criminals, may be found under titles
4 Criminals/ and 4 Sheriff.'
IX. Of escapes m civil cases.
The proceedings on efcapes in civil cafes are dire&ed by Fir-
gxnia laws, chap, qg.page. 125 of the Rev fed Code, which jee%
X. Escape Warrants^
1, In civil cafes.
[Where the defendant ivas committed.on an execution)
To all fheriffs, mayors, fergeants, bailiffs, and conflables, •
within the commonwealth of Virginia.
t& wit.
Complaint being this day ?nade to me, upon oath, by T J, of
bV. that J D, who was charged in execution, in the jail of the
f>iid county (or within the bounds of the jail of this county) at the
fuit of A C, csV. (here mention the feverai executions particu-
larly) did, on or about the day of lafl paft, efcape
out of the [aid jail (or prifon bounds) and is nova going at large'.
Thje are therefore in the name of the Commonwealth, to require
you, and every of you, in your refpeftive counties, cities, towns
and precinffs, to j'ei-ze and retake the faid J D, and him fo retaken
to commit to the prifon vjhere debtors are ufually kept, in the county
where he is fo retaken, and deliver him to t he keeper thereof toge -
ther with this warrant', hereby commanding and requiring the
faid keeper to receive the faid J D, and him jafely to keep in ike
faid jail\ without bail or mainprize, until jaiisfafiion be made if
164
ESCAPE.
the faid A C, for the (aid deht and eofts, or until he he thence d
livered by due courfe of law : and to return this warrant to the
court of the faid county of purfuanl to the aft of the General
jfffembly, in that cafe ?nade and provided. Given under my bant
and feal idc.
(On mesne process.]
If the efcape was upon rncfne procefs, then fay,
Complaint &c by J S, under Jheriffof the faid county, that J
D, who was committed to the jail of the faid county. for want of
bail, at the fuit of A C, &c. (here recite the caufe of adion)
did, on or about the day of lajl paji, make his efcape
out of the jail of the faid county, and is now going at large: Thcfe
are hfc: (as in the other.precedent to jail-9 and then add,—
Until a certificate, under the hand of the clerk of the court of the
faid county, that the faid J D, hath given bail in the faidfuit, be
delivered to you, and to return &c. as before.
This warrant may be executed at any time or place.
2, Efcape warrant againfl a criminal,
to wit.
J P, one of the commonwealth's juftices of the peace for the
faid county, to all fheriffs, mayors, bailiffs, conftables, and
headboroughs, within the commonwealth of Virginia.
Whereas complaint is made to me this day, upon\ the oath of A
W, that A O, labourer, who was lately committed to the jail of
the faid county if by warrant from J P, a jujlice of the peace
of the faid county, on fufpicion of felony, did on the day of
lafl pajl, forcibly e/cape from the faid jail, and is nova go-
ing at large: Ihefe are therefore in the name of the common-
wealth, to require you, and every of you, in your refpeftive coun-
ties, cites, towns, and precinfts, to make diligentfearch, by way
cf hue and cry for the /did A O, and him having found, to feize
and retake, andfafely convey, or caufe him to be fafely conveyed,
to^the jail of the /aid county of there to he kept until he /hall
be thence difcharged by due courfe of law. Given under my hand
and fcal tsV.
(Aj Indi&ment againfl a eonflable for an efcape,
county to wit.
The jurors &c. upon their oath do prefent, that on the
day of iti the year in the year of the com*'
men wealth,
ESCAPE.
165'
monweakh, at in the county aforefaid, one A I, of
came before J P, then and yet one of the jniiices of
the commonwealth, affigned to keep the peace in the fud coup-
ty; a id the laid A i, did then an'1 there upon his oath, before
the fime judice charge, accufr, and give informal on agahdb
one A O, of aforefaid, in tnr county afore/aid, yeoman,
for a certain felon*', in fclonioufly &c. (here ekferibe the cjfjice)
at in the fa d count v: Whereupon the Lid J P, tne juf-
tice aforelaid, did then and there, to wit, at aforelaid, in
the county aforelaid, make a certain warrant, under his hand
and feal, in due form of law, diredied to the 0 nftable of
aforefa d, in the county aforefaid, thereby commanding him to
bring the body of the f.iid A O, before the (aid J P, to anivvcr
to luch matters and things as 'hould alleged agam't him,
touching the Ibid felony : Wnu h f. id warrant arter wards to wit,
on the lame day and year abo.e mentions d, at aforefaid,
in the county afoiefaid, was delivered to one A C, tnen
being couftable of in the (aid countv, in due form of law
to be executed j by virtue of which laid warrant, the f id A C,
afterwards, to wit, on the fdd day or in the y< iv
aforelaid, at aforefaid, in the faid rounfcy, did take and
arrelt the body of the falsi A O, and him the Aid A O, in his
cuftody for the caufe aforelaid had: Neverthelefs the faid A C,
of aforrfaid, in the county aforefui •, veo m.n, afterwards,
to wit, on the faid day of in the year aforefaid, the
duty of his office, in that part not regarding, at aforefaid,
in the county aforefaid, unlawfully and negligently did permit
the faid A O, 'to efcape, and go at large, out of the cuftody of
him the faid A C, to the great hindrance of juthce, in contempt
of the laws of this commonwealth, and againfb the peace and
dignity of the commonwealth.
E S T R. A Y S.
THERE is no part cf the duty of a magi Urate productive of
more trouble than tne proceedings on taking up e/irays,
ncr is theie any lubjndt relating to h'S office on which le£> in-
formation can be derived from any treaufe heretofore publifhed.
The aht of Aliembly from which Air. Starke made his compi-
lation under the title 4 Stray), even fuppofing it ever to have
been in force, (which he himfelf doubts) has long been repealed,
by the a At of I785, 4 concerning ijiraysj—k is now collected
in
V„
i65 E S T R A Y S.
in the Revifed Code page 21, and is materially c'iilheiit frcnj
the former adts, on the fame fubjedt.
Under this title I fhall conikler,
I What Jhall be cleaned ejirays,
1L 1 be mode of proceeding on taking up efrays,
III. Adjudicating on this subjeB.
IF. Preccdtnts:
I. What ftiall be deemed eft rays.
Rftrays are fuch valuable animals as have abandoned the paf.
tures and lands of their proprietors, and are found wandering on
the lands of others, where the owner is not known.
Any beafts may be eftrays, that are by nature tame, or re-
claimable, and in which there is a valuable property,- as fheep,
oxen, fwine, and horfes, which we in general call cattle; I
Blacks Com. 298*
But animals upon which the law fets no value, as a dog or
cat, and animals, ferae naturae, as a bear, or wolf, cannot be
confidered as eftrays. Id,
II. Tfhe mode of proceeding on taking up efrciys.
By Virginia laws (10 R. Cond. 1785) chap. 16. p. 21. of
the Revifed Code, it is enacted,
ift. Any perfon by himfelf or agent, may take up an eftray
on his own land, and fhall forthwith give information thereof
toajufticeof the faid county, who fhail iftle his warrant to
throe dilinterefted freeholders of the neighbourhood, command-
ir<g them, having been firft duly fvvorn, to view and appraife
fuch eftray, and certify the valuation under their hands, together
villi a particular delciiption of the kind, ma:ks, brand, itature,
colour, and age; which certificate, the jtiftice ftial) tranlmit to
trie cletk of the county within 20 days, who fhail enter it in a
book to be kept for that purpde, and receive 10 pounds of to-
bacco, to be paid down by the taker up.
2d. The clerk fhail alio caule a copy cf evcy fuch certificate
to be publickly affixed at the door of his cc urt h ;ufr? cn two
feveral court days next after he receive the fame, fir which and
a certificate thereof, he fhall likewdt receive io pounds cf to-
baccow
3d. If the valuation is under 20 fliifiings, and no owner ap-
pears till notice has been twice published as afurefaid, the pro-
jserty
E S T R A Y S. X6y
ptrty is then vefted in the owner of the land on which the eftray
\suS taken;—if it exceeds 20 fhillings, the owner fhall, with:rt
free months after the appraifement, fend to the public printer a
copy of the certificate to be advertifed three times in the Virgi-
nia Gazette, with notice of the place where the eftray is, for
ivhich the printer may demand 4 fhiliings for each eftray; and if
r.o owner appears within a year and a day after publication, the
property is veiled in the owner cf the lands whereon it was ta-
ken. But the former owner in either cafe may at any time
within 5 years afterwards, upon proving his property, demand
and recover the valuation money, deducting therefrom the clerk's
and printer's fees, and 5 {killings for every horfe, or head of
neat cattle, and 1 fhiiii. g for every other beaft.
4th. The fame proceedings a^e to be had in the cafe of a
boat or veffel adrift, defcribing her by her kind, burthen, and
built.
Provided, that if after notice publithed, any eftray lliall die,
or get out of the pofteftion of the taker-up, without his default,
be ihall not be anfwerable for the fame, or the valuation thereof,
npr (hall any taker up be anfwerable for a boat or other vdiei
loft as aforefaid.
///. Adjudications on this subject.
He that takes an eftray, is bound fo long a? he keeps it, to
£nd it in provifions and preferve it from damage; and may not
ufe it by way of labour, but is liable to an adtion for fo doing.
Yet he may milk a cow, or the like; for that tend:; to the pre-
fervation, and is for the benefit of the animal. 1 Blacks Com.
$>99. Cro. Jac. 148.
in trefpais for taking and carrying away a gelding, if the de-
fendaut juftify as for an eftray, a replication that the defendant
njed the gelding is proper, and is not a departure in pleading;
fur he is taereby rendered a trefpafter from the beginning. C? 0.
Jac. 148. 1 Term. Rip. 12.
So in trefpaft for taking a heg, if the defendant pleads that he
took the hog damage jenfant, the plaintiff may icply that after
the taking and impounding the defendant converted the hog to
his own ufe.—See the pleadings, 3 Vfils. 20.
Our a<5t of Allembly merely prefcribts the mode of proceed-
ing on taking up eftray % and docs near, I conceive, mteiftre
with the dofitrine on that fubject, arifing undei the common
law. On this preemption, the cafe of litnf v. JRaijh. 2 Sdk.
686, is worthy of obfervation.
l6S E S T R A Y S.
Prcfp-fi for his horfe: Defendant pleaded, that one Poo1)/
was owner ri the h *i,e, ard that the h< rfe efttayed out of hi
pollelli' n, and came te the h- m|s of the plainufT, and that he
by command of Pooly, demanded the horte within the year oct.
at d unit red arntndi, and that the p aintiff refufing to deliver
him, he took him To this there was a frivolous rtp,icaton,
and upon that a d murr r.
Jnd by ihc curt* iff. Without telling any markr, or mak-
irg any proof of p-opctty (which may be done upon trial) the
©v. ner may feize lii^ hoife where fc finds him.—but qva/re.
zd. Tho't: e defendant dees not plead diredily that he ten-
dered amends, but only that he demanded fhehorfi, offering ja-
tisfaftion, yet the co irt held this a direct affirmation.
3d. I he court he Id, that tho' it was faid he tendered amends
geier'it\\ and did not expr fs any fum certain, yet that Was
g md iri this cafe, and a difference was taken between this cafe,
and tmt of a tr-nier of amends for a trefp«T. In that <f a tief-
pufs, if the defendant pleads a tender of amends, he mull fhew
what he tendered, for he mull tender a certain lumj and the
iavy puts this difficulty upon him, becaufe he is the wrong doer,
and the other is eonfeiil uly a par y injured: 3.iut the owner of
the till ay i 110 v* iong-d©er, and it is impofiible fie fhould
jenow haw Jong his boil's, had been in poUclhon of the taker-upj
tior how much will make a pioper latiafiiotion.
IF, Precedents.
(A) Warrant to three freeholders, to view,
appraife, and defenbe an eftray.
co, ity U wit.
To A B F, and C F, freeholders of this county.
IVhey ecs A T, if ihc f /id county, haJj this uay given infer-
/.vrrV? to me J I1, a j\'//\ce of the peace for the county aforejaid,
tn-J he hath taktn 11 <> an ejlray (here exprefs the kind) upon his
cun land: Phcfe are therfore, in the name of the common-Healthy
to commandyouy having been firjl duly fwomfor that purpefe, be-
fo/e r.:c, or fome other jujlice f the peace for this county, to view
and oppraitc ihc fid ethay, and to ceitif) the value thereof under
your hanus, together wit a a particular dejeriptton f the kind,
marls, brand, future, colour, and age opt.e faid ejlray \ vd/uh
certificate jo male, yu are forthwith to return tome. Given
under toy hand Gfr,
j. ?.
(»)
E S T R A Y S. 169
fB) Form of the oath to be admmiflered
to the freeholders.
You A F, B F, and C F, Jhall fivear that you will faithfully''
and to the bef of your JkUl and judgment, view and appraife a cer-
tain e/fray (ex.preis the kind, whether horfe, cow &c.) taken
up by A T, of this county, and that you will certify the valuation
thereof under your hands, tome (or to J P, a jufice of the
peace for this county, if the warrant iilued from him) together
with a particular defcription of the kind, marks, brandy Jlature,
colour, and age of the fame. So help you God.
fCJ Certificate of the freeholders.
(On the back of the warrant, or on a piece of paper annexed
to it, make the following return)
Purfuant to the within (or the above) warrant to us directed,
we have this day viewed an eftray fxprefs the kind., whether
horfe, mare, cow &c.) (hewn to us by A T, of this county;
and do find the lame to be (here defribe the kind, marks, brandy
fat are, colour, and age of the ejlray) and we do appraife the faiti
to the fum of Certified under our hands this
day of in the year
A. F.
B. F.
C. F.
The freeholders cannot well be too particular in the defcrip-
tion of the eftrayj becaufe not only the injunctions of the law
as expreffed in the warrant require it} but an imperfeCt defcrip-
tipn, often defeats the cbjeCt of the law itfelf.
EVIDENCE.
I. Of evidence in general.
II. Of written evidence.
III. Of the evidence of witnesses,
IF". Of process to cause witnesses to appear,
V. Of the manner of giving evidence.
I. Of evidence in general.
EVIDENCE in legal underftanding, doth not only contain
matters of record, as letters patent, fines, recoveries, in-
roiments, and the like, and writings under feal, as charters and
deeds
EVIDENCE.
deeds, and other writings without feal, as court roils, accounts,
arc) rhe likej hut in a larger fe (e it contained* a'E) the tefli—
mo; y cf vvifn< lies, and other p-oofs to be p oduced and given,
for the finding of any iliuo j. ined between the parties. And it
is called evidence, bee ufe thereby the point in iffae is to be
made evidenr to the jury. I In ft, 283.
But it is a general rule in all cafes, civil and criminal, the
beft evidence that may be had, or that the nature of the thing
will bear, is to be given; and it is upon this rtafon that a copy
of the record is admitted, becaufe one cannot have the re-
cord itself; but a copy of a copy will not do. Law of Evid. 280*
Many times juries, t igetber with other master, are much in-
ductd by preliimptions: whereof there are three forts, violent,
probable, and light or temerary. Violent preemption many
li oes amounts 10 full proof; as if one be run through the body
in a houfe, whereof he inllanfly dieth, and a man is feen to come
cut of that boufe, with a bloody fword, and nj other man was
a. that time in the houfe. Probable prcfumpuon moveth little;
but light or temerary prefumption moveth net at all. 1 Inji. 6.
If all the wirneiies to a deed be dead (as no man can keep his
witnelks alive, and time weareth out a 1 men) then violent pre-
fumpt/on, which {bands for a proof, is continual and quiet pT-
fefflon; al'ho' the deed may receive credit, from a comparing of
feds, writing and the like. 1. inji 6.
The common law did not require any certain number of wit-
ncfles, for the trial of any crime whatfexver 1 Hew. li%.
Two vvitnelfes are neceifar) in cafts cf treTon. V. L p. 282.
In thofe cou ts which proceed by the rules of the civil law,
as the courts of equity, two wi ntfies are generally required:
ard the reafon why the civil law requires two witnefles is, be-
caufe their trial is by witnefles, and not by a jury or twelve men,
1 Jrji, 6 b. Plczid. 12. a. Eut a better rtafon feems to bt,
becaufe the defendant, in a court of equity, being called on to
give evidence againft himfclf, his oath fhail be coniidered as
good evidence, till the contrary appear; and if but one witnefs
iwears, in oppofltion to the defendant's anfwer, it is but oath
againil oath.
II. Of written evidence,
APs of Afilrobly relate eicher .to the commonwealth in ge-
rem], and are theiefore cubed general adls, or on y to the con-
c..vns of private perfons, and are thence called private ads,
P he My of Evid. 2.
A general act is taken notice of by the judges and jury, with-
out being ill.wed; and hence it is. that it hath been faid^ that
the
EVIDENCE.
the printed ^atutr book is good evidence of genera1 a&S; not
that the printed ftatutes are the perfect and authentic copies uf
the t'Cords therrfdve^, but every pcrf;n is fuppofed tr> know
tie law; and therefore the printed ftatutbs are r 11c wed to be
evidence, K caufe they are the'hints of that which is fuppofed
to be lodged in every mans mind already, id. 2, 8.
4 Private a<5te of AiTembly may be given in evidence without
* pleading them fpecially,' V. /. p. 119.
* Papers read in evidence, tho* not under feal, may be caf-
4 ried from the bar by the jury.' V. I. p 119,"
Records of the courts prove themfelves, and cannot be p oved
by witnefles. No razure or inteilining ihail be intended in
them. 10 Co. 92.
And nothing ihall be admitted as evidence of whr.t was donei
at another trial, till the record of that trial be produced. Read
JEvid,
But a record of a criminal convi&ion lhall n^t be given in
evidence in a civil a&ion; becaufe fuch convt&uin might have
been upon the evidence of a party interefted in the civil a&ion.
Cafes in the time of lord Harduuicke* 312.
Depofitions of witnefles may be read when the witnefs js dead,
but not when the witnefs is living; for whillt the witnefs is liv-
ing, they are not the beft evidence, the nature of the thing is
capable of. Theory of Lvid. 33.
Yet they may be read when a witnefs is fought and cannot
be found; for then he is in the fame ciicumftauces, as to the
party that is to ufe him, as if he were dead. Id.
So if it is proved that a witnefs was fubpeenaed, and fell flrk
by the way; for in this cafe likewife, the depofition is the beft
evidence that can be had, and that anfwers what the law re-
quires. Id.
But a depofition cannot be given in evidence againft any per-
fon that w. s not party to the luit; and the reafon is, beeauie he
had not liberty to croft-examine the witr.ef ; and it is agunft
natural juli ice, that a man fiiou'd be concluded ly pi oofs in a
caufe to which he was not a party. For this rcjfun, depoiiti-
ons in chancery fiiall rot be read for or agrinft the utf-ndant
upon an information cr indictment, for the commonwealth was
no party to the fuit. Id.
Yet this rule admits of forr.e exceptions; as particularly, in
all cafes where hearfty and reputation a.e evi'i„nce; tor un-
doubtedly what a vvitrels, who is Oead, hath fwurn in a ccuit
ofjuftice, is of more cieoit than what another peifon f.veara he
hath heard him fty. So a depofition ta.tcn in a caufe between
either parties, will be admitted to be read, to Cuiiiiauidt what
the fame witnefs ivvears at a tiial. Id 30. 31. As
17 2 EVIDENCE.
As to the admiffion of the information of a vvitnefs taken on
an examination before a juftice, fee title 4 Criminals'—Aljo
I Saik. 281.
Anciently, depofitions taken in perpetuam rei mcmoriam were
not publilhed till after the death of the witneflfes, becaufe they
were no evidence while the witneflfes were living; but this prac-
tice was found very inconvenient, becaufe thereby witnefies
became fecure in fwearing whatever they plealed, inafmuch as
they never could be profecuted for perjury. Theory of Eviti. 32.
What a man, who is living, hath fWorn at onetiial, can ne-
ver be given in evidence at another to fupport him, becaufe it
is no evidence of the truth; for if a man be of that ill mind to
fwear falftly at one trial, he may do the fame at another on the
fame inducement; but what a man fays in difcourfe, without
premeditation or expectation of the caufe in queftion, is good
evidence to fupport him, becaufe that Chews that what he fwears
is not from any undue influence. But if a man hath fworn at
one trial different from what he hath fworn at another, this is
good evidence as to his difcredit. Id. 35.
No verdiCl (hall be given in evidence, but between fuch who
were parties or privies to it; becaufe otherwife, a man would
be bound by a deciflon, who had not the liberty to crofs exa-
mine: and nothing can be more contrary to natural juftice,
than that any bcdy fliould be injured by a determination, that
lie, or thofe under whom he claims, was not at liberty to con-
trovert. Theory of Evid. 18. 19.
And a verdid: will not be admitted in evidence, without like-
wife producing a copy of the judgment founded upon it; be-
caufe it may happen, that the judgment was arrefted upon a
new trial granted. But this rule doth not hold, in the cafe of
a verdiCl on an iifue directed out of chancer) ; becaufe it is not
nfual to enter judgment in fuch cafe; and the decree of the
court of chancery is equally proof that the verdict was fatisfac-
torv, and ftaads in force. Id. 21.
A decsee in chancery may be given in evidence between the
fame parties, or all claiming under them; for their judgments
ma ft be of authority in thtle cafes, where the law gives teem a
jotrifJivStiorr: t:r it would be very abfurd, that the law ftiouhl
ghe tnem a jurifd'efion, and yet notfufier what is done by force
cf that iurifdidiion to be full proLf, Theory of Evld. 36, 37.
And note, wherever a matter comes to be tried in a cohateral
way, the decree, fentence, 01* judgment of any court, having
competent jurifdicftion, is conclusive evidence ©f fuch matter:
and in cafe the determination is final in the court, of which it is
a decree, fentence, or judgment, fuch decree, fentence, or
judgment
EVIDENCE. 173
judgment will be conclufive in any other cour?, having concur-
rent juriidibtion. Id. 37.
A-deed was offered to be produced, which bore date 38 years
before, without proving that the witneffes were dead And ;d-
lowed by the court. They faid that in general 40 years was
allowed to be the rule; but the courts never tied themfJves up
ftri&ly to that rule, but 39, 38, nay 35, have been allowed. 1
Barnard. 348.
Upon a trial at bar, a deed was offered in evidence, executed
36 years ago, without proving the hands; which was opp. ffcl
by the other fide; but admitted by the court, who faid, there
was no fixed rule about it, but that it had often been allowed,
where a deed was but 25 or 30 years old, 12 Finer. 57.
In cafes where writings have been loft by burning of houfts,
by rebellion, or when robbers have doftroyed them, or the like;
the law, in fuch cafes of neceffity, allows them to be proved by
witneffes, Jenk. 19. Wood, b 4. c. 4.
If a man deftroys a thing that is defigned to be evidence a gainft
himfelf, a frnall matter will fupply it; and therefore the defen-
dant having torn his own note figned by him, a copy fvvorn was
admitted to be good evidence to prove it, L, Raym. 731.
Where the defendant himfelf has" the deed which concerns the
land in queftion, and refufes (after notice) to produce it; a copy
thereof will be permitted to be given in evidence, on its being
proved to be a true copy. And if the party has no copy, he
may produce an abftradf, nay even give parol evidence of the
contents; becaufe in fuch cafe it may be impoffible to give bet-
ter evidence. In civil caufes, the court will fometimes oblige
parties to produce evidence which may prove againft themfdves;
or leave the refufal to do it (after proper notipe) as a Itrong pre-
fumptio;-, to the jury. The court will do it, in many cafes,
under particular circumftances, by rule before the trial; efpcci-
ally, if the partv from v/nom the production is wanted applies
•for a favour. But in a criminal or penal caufe, the defendant
is never forced to produce any evidence, though he Ihouiti holft
it in his hands in court. "Theory of livid. 54. Burrow. V/lamf.
Where an original note of hand is loft, and a copy of it is
offered it) evidence to ferve any particular pirpofe in a caud;
fufiicient probability mult be ihewed to fatisfy the, cour\ that:
the original note was genuine, before the copy will be allowed
to be read, 1 Aik. eujh.
But by lord Hardtvicke, Ap. 16, 1740. On exceptions to
a mailer's report. Where a rent charge is granted by deed,
and
W.
174 EVIDENCE.
and the deed happens to be loft, the plaintiff cannot read a copy
in evidence at law, but mull either let up a preferiptive title to
the rent, from a conftant and uninterrupted payment, or he
muft bring his bid in equity, to be relieved againlt the accident
of the original's being loft. And the fame rule holds in cafe of
a bond; for though an hundred witneffes could prove the fab-
ftance of it, yet it is not fufftcient at lav/, for the plaintiff mull
<Lcl?re upon it, fctting forth that he produceth it in court. 2
Atk. Oi.
An indenture to guide the ufes of a cothmon recovery, was
offered in evidence, but the feals were torn off; yet it being
proved to have been done by a little boy, it vfas allowed to be
read. Palm, 402. 6ee n Mod. 11.
If upon a collateral iffue, it is to be proved, that fuch a one
was juftice of the peace, or the like; common reputation is fuf.
ficient proof, without Hie wing the commillion. Tr. per, pais.
317*
The copy of the probate of a will certified by the clerk of the
court, may be given in evidence in any court of record in this
commonwealth. P. I. p. 173.
For the rul?s of admitting foreign deeds a$ evidence, See pit*
gtnia laws, p. 168. of the Revifed Code.
And generally, wherever an original is of a public nature,
and wculd be evidence if produced, an immediate {worn copy
t ercof will be evidence, as a copy of a bargain and fale, of a
deed inrolkd, and the like; but where an original is of a private
nature* a copy is not evidence, unlefs the original is loft or de-
f.royed 3 SJk. 154.
Un a warrant to a conftable to diftfain goods by virtue of an
a£t cf AfFembly; the conftable makes diftrefs, and returns the
overplus to the offender, but keeps the warrant. Refolved, that
a cop; of the warrant in this cafe will be good evidence. 6 Md.
*3-
An inquifition pojl mortem is evidence, but not conclufive, %
224.
'I he entry of the names of perfons in a church-hook either
fcr marriages or births is evidence, but not conclufive evidence
of the marriage or birth of any perfons, unlefs the identity of
the perfon (by fuch entries in tended J is fully proved, and alfo
frrenghtened with circumftancet, * s c* habitation, the allowance
of the parties themfJves, and the like. 12 Pin. 89.
The indorfcurent on a bond by the obligee, of payment of
intereft ; was ul.owed to be given in evidence by the admini-
firator, to take off the prefumption from the length of time. L,
Raynu 1371.—But if the indorfement is made after the pre-
fumptiuii nas taken place it is not evidence. Stra. 827. A,
EVIDENCE. 175
A Hiop-book was allowed for evidence, it being proved that
the fervant that writ the book was dead, and this was his hand,
and he accuftomed to make the entries, and no proof was re-
quired of the delivery of the goods; and Holt. Ch. J. faid it
Was as good evidence as the proof of a witnels's hand to an ob-
ligation; and he held, that tbo' the flatute of the 7 J> fayr, a
fiiop book {hall not be evidence after the year, yet it is net of
itfelf evidence within the year 2 Salk. 690.
A man's book of accounts is no evidence for the owncr of
the book, but for the adverfe party; for his book cannot be of
better credit than his cath, which would not ferve in his own
cafe. Tr. per pais. 348.
A copy of an inferjption on a grave {tone, hath been allowed
to be given in evidence.
The examination of an Almanack, that fuch a day of the
month was Sunday, was ruled to be fufficient; and that a trial
of this by a jury is not necclfary, altho' it is a matter of fa6t,
Cro. Eiiz. 227.
An Almanack wherein the father had writ the nativity of his
fon, was allowed as evidence to prove the non age of his fon.
Rayon. 84.
A general hiftory may be read to prove a matter relating to
the country in general, J)ut not a particular one. I Saik.
281.
It feems to have been generally holden, fines the reverfal of
the attainder of Algernon Sydney, that fimilitude of hands is not
evidence in any criminal cafe, whether capital or not capital.
2 Haw. 431. L. Roym. 39.
And gene ally, it is faid, that fimilitude of hands is no evi-
dence; but frying that he was well acquainted with his writing,
and knew it to be the party's is evidence. 12 Finer. 204,—But
fee Bulier s Ni/I prius 225.
And in general cale% the witrefs fhould have gained his-
knowledge from having feen the party write; but under ibrne
circumitances that is not neceffary; as where., the hand writing
to be proved is of a perfon refiding abroad, one who has fre-
quently received letters fiom him in a courfe of correfpondence,
would be admitted to prove it, tho' he had never feen him write.
So where the antiquity of the writi-g makes it impriTible for1
any living witnefJ to fwear he ever faw the party write; as
where a parfon's book was produced to prove a modus, the par-
fon having been long dead, awitnefs who had examined the pa-
rifh books, in which was the fame parfon's name, was permit-
ted to fwear to the fimilitude of the hand writing, for it was the
bell evidence in the nature of the thing, for the parifn bookb
weie
176 EVIDENCE.
were not in the plaintiff's power to produce. Theory of Evid.
25, 26.— 1 Blacks Rel*. 384.
On the trial of an iffue out of chancery, be ore lord Manf-
feld, where it was difputecl, whether the name of one William
Jcths, l'ubfcrited to a declaration of truft, was genuine; and,
to pi ore the hand writing forged, a witnefs was produced, who
had frequently Correfponded with "Jones, but had never feen him
write: Lord Mansfield^ upon debate, held him to be a good
evidence, and his tcilimony accordingly was admitted, Blace.
Rep. 384.
' Parol evidence fball not be admitted to annul, of fubftantn
ally vaiy a written agreement. 3 IPils. 275—2 Blacks Rep.
1249. 3 Term. Rep. 590. Str> 794. Sir, 1261.
But where the meaning of a written inftrument is ambigu-
bus, paiol evidence may iometirnes be admitted to explain it 3
Ve is. 276.—Cuivp, 53. 3 :l».rm. Rep. 473. Id. 474.. Id 609.
III. Of the evidence of witn jjis.
See the obfervatichs under title * Corfeffion* as to the ad-
miihbility a mai.'f own cor.feftion, in criminal cales.
T'bLre aie many tiroumftances that diLble a juror, that are
rut luffcient except! ns cgainft a witne's: Thus the exception
of hind is a gjod caufe cf challenge agamlt a juior, but not
againff a wit .els; therefore the father may be a con p.tent wit-
nefs for or again ft Lis fon, or the Ion for or againlt his father,
Thefe and the like exceptions may be to the creditor credibility
of the vvitnels, but are not exceptions againft his competency.
2 IE H. 276.
For, the exceptions to a writnefs are of two kinds. 1, Ex-
cepiions to the credit cf the witnefs, which do not at all difahle
him from being fworn, but yet may blemilh the credibility of
lus teftimony ; and in fuch cafe the witnefs is to be allowed,
but tlie credit of his tehimony is left to the jury. 2. Exceptions
to the competency of the witnefs, w hich do exclude him from
giving his leftitnony, and of t'nefe exceptions the court is the
judge. 2 H. H 276, 277-
it feems agree*, that an attainder, judgment,* or convi&ion
of treufon, felony, piracy, perjury, or forgery, and alfo ajudg-
mcnt in attaint for giving a fade verdicf, or in confpiracy at the
fuic of the commonwealth, and alfo judgment for any heinous
crime to iLmd on the pillory, or to be whipped or branded, are
good car ies <. f except on sgainft a witnefs, while they continue
in force. 2 iicsiv* 432, Theory of Evid. 107,
In
E V I' D E N C E. 177
In the cafe of Pendock arid Maclendcr, the queftion was,
whether a perfon eOnvid.ed and whipped for petit larceny fhall
be allowed to be a witnefs. And the court were clearly of opi-
pioi), that he fhaM not; and laid it down as a rule, that it is
the ciime that Created the infamy, and not the pur.ifhment for
it. Petit larceny is felony; and there is no cafe where a per-
Ion < nnvi&ed thereof was ever admitted to be a witnefs. 2 lVil~
Jon. i'8.
But it is agreed, that no fuch convidbion or judgment can be
made ufe of to this purpofe, unlefs the record be actually pro-
duced in court. 2 Haiv. 433.
Alfo, it is a general rule, that a witnefs fhall not be afked
any queition, the anfwering to which might oblige him to ac-
cvfe himfelf ef a crime; and that his credit is to be impeached
only by general accounts of his charadler and reputation, and
not by proofs of particular crimes, whereof he never was con-
viited. 2 Haw. 433.
And a man lhall not be permitted to fwear, that he was fu-
horned a :d perjured. St. LIr. V. 3 427.
And lord Cute fays, a witnefs alleging his own infamy or
turpiiu^e, B not to be heard. 4 Inft. 279.
* 1 hus a wife was difdlowed to be a witnefs to prove her huf-
band had no accefs to her in a cafe of baftardy. Sefs. Cafes, F.
2 175.
It feems clear at this day, that outlawry in a perfonal adhon is
not a good exception againft a witnefs, as it is againft a juror.
2 Haw. 433.
A perfon convidled of felony, who is admitted to his clergy,
and burnt in the hand, is thereby re-enabled to be a witnefs, 2
Haw. 433.—F. L p. 288.
And it feems agreed, that the executive's pardon of treafon,
or felony, after a convidtion or attainder, reftores the party to
his credit. 2 Haw. 433
But a perfon convidted of perjury fhali never be a witnefs.
V. I p. 289. _ _
Want of difcretion is a good exception againft a witnefs; on
which account alone it feerns, that an infant may be excepted
againft. 2 Haw. 434.
But if an infant be of the age of 14 years, he is as to this
purpofe of the age of difcretion, to be fvvorn as a witnefs; but
if under that age, yet if it appear that he hath a competent dif-
Cretion, he may be fvvorn. 2 H. H. 278.
And in many cafes an infant of tender years may be examin-
ed, where th exigence of the cafe requites ii; which poiftbly,
being fortified with concurrent evidences, which may be of
fame
173 EVIDENCE.
fome weight; efp^cially in cafe!? of rape, buggery, and fuch
crimes as are pradfifed upnn children. 2 H. II. 279. 284.
But in n'» cafe (hall an infant be admitted as evidence with-
out oath Sir. yco. 1 s/tlyns 29.
Infancy is to be tried by iriipe£Uon, and if upon infpecfticn
the court have any duubt of the age of the party, it may proceed
to take proofs of the fad; and, particularly, may examine the
infant himfelf, upon an oath of voir dire, ( 0 [peak V.etruihf) that
is to make true anfwtrs to-fuch queftions as the court fnali de-
mand of him: or the court may examine his mother, his gad-
father and the like. 3 Blacks Com. 332.
It fetms an uncoirreverted rule in a.l cafer, that it is a good
exception againft a witnefsthat he is either to be a gainer or ioftr
by the event of the caufe, whether fuch advantage be dire& and
immediate, or conftquential only. 2 Haiv 433.
Thus in an information upon the ftatute ot ufury, tine pnrty
to the ufurious central fhail not be admitted to be a witnefs
againft the ufurer, for in effe& he fhould be witnefs in his own
Caufe, and fhould avoid his own bonds and affurances, and dif-
charge himfelf of the money borrowed. 1 Infl, 6.
1 bus a do an attorney ought not to be examined againft his
client, becaufe he is ob'iged to keep his fecrets; but of his own
knowledge before retainer, he may be examined as a witnefs,
if ferved with a fubpxna. Wood. b. 4. c. 4,
So, a bail cannot be a witnefs for his principal. 1 Term.
Hep. 64.
A fader who received a commiffion on the file of the goods
was allowed to be a good witnefs to prove their delivery. 3
WiJs. 10.
A perfon interefied, may be reftored to his competency, by
parting with his in'ereft; before he is fworn, by a releafe &c.
See % Sad: 691. I Burr. 423. 3 Term. Rep. 27. Doug. 134..
I ft lacks Rep. 365.
But upon an indictment for battery, or the like, the party
grieved may be a witnefs againft the defendant, becaufe the pro +
4ecufion is at the fuit of the commonwealth. Wood b. 4. c. 5.
And in many criminal cafes, from the necefTity of the thing,
interefted perfons are allowed as witneftes. As where the ow-
ner profecutes an indidlment of felony for ftolen goods, he is
concerned in intereft; for he will be intitled to reftitution: and
yet his evidence is admitted &ic.<—Sec 10. Mod. 193*
Alfo it fesms agreed, that it is no good exception againft a
witnefs, that he lias a maintenance from the commonwealth;
for every one may maintain his own witnefTes. 2 Haw. 434-
A
EVIDENCE. 179
A truftec may be a witnefs, if he hath releafed his truftjj but
not if he hath conveyed it over. Sid. 315.
An heir at law may be a witnefs concerning the title to the
land, but the remainder-man cannot, for he hath a prefent in-
tereff, but the heirihip is a mere contingency, 1 Sulk. 283.
A witnefs laying a wager in tne cauie, is no hindrance to his
being a witnefs 5 for the other has an intereft in his evidence,
which he cannot deprive him of. Far eft. 31. Str. 652.
If a perfon apprehends himfelf to be intcrefted, tho' in ftridt-
nefs of law he is not, yet he ought not to be fworn; as where
the witnefs for the plaintiff apprehended What if the plaintiff
fhould recover, he would remit a claim of lame money which
he (the plaintiff) had upon this witnefs; but if he fhould n<tt
recover,-he wbuld not remit it; although in itraffnefs of law
his recovering or not recovering in tiiajj cafe, would not alter
the claim ; or as in cafe where the witnefs owned himfelf to be
under honcnary, though not under a binding engagement: to pay
the coffs. Str, 129. ' *
If a man hath been examined on interrogatories, being at the
time diffnterefted, and afterwards becomes interefteJ; his depo-
fitiaft may be given in evidence; Becaufe his evidence muff be
taken as it ffood at the time of his examination. So if a wit-
nefs to a bond becomes afterwards representative of the obligee,
his hand muff be proved in like manner as if he were dJkd.^2
Atk 615/2 Fezey. 44.
Intercfted witnefles may be examined upon a voir dire, if
fufpe&ed to be fecretly concerned in the event; cr their inte-
n.ft may be proved in court. 3 Blacks Com 370.
It fecms agreed, that the hufband and wife being as one, and
the lame perfon in affection and intereff, can no mwre give evi-
dence for one another, in any cafe whadoever, than tor them-
felves; and that regularly the one fhail not be admitted to give
evidence againft tne other, by reafon of the implacable diffentj^n
which might be caufed by it, and the great danger of penary
fjom taking the oaths of per tons under io great a bias, a,,! thqg
extreme hardfhips of the cule. Yet foine exceptions have been
allowed in cafes of evident neceiHty; as in the lord Audltys
cafe, who held his wife, while his fervant by his command ra-
vifhed heb; or where a man is indicted on a forrible marriage
en the flatute; or where either a hufband or vv be have caufa
to demand furetics of the peace, ygulnil the other. 2 l^aw.
43J> 432,
On
i8o E V I D E N C E.
On an indidlment for bigamy, the ftrft wife cannot be a wit-
nefs, but the fecond mays for the fecond marriage is void. Bull.
N. p. 287.
So on an indiclment againft the hufoand for an affault on the
wife, fhe may be a witnefs. Stra. 633.
In an adftion againft the hufbt/nd for his wife's wedding clothe-;
the wife's mother was fuffered to give evidence that they were
bought on the credit oTher own hufband. Sir. 504.
So, the declarations of the wife, as to the price for nurfing the
defendant's child, have been given in evidence to charge the
hufband; fuch matters being uihally tranfacVd uy women. Stra.
527.—But this cafe has been denied to be law. See Ejpinajje's
A7. P. 722.
In an a&ion for wages earned by the wne of the plaintiff
from the defendant's inteftate, the wife's acknowledgment of
the receipt of 20I. was not allotted to be given in .evidence
againft her hufband. Stra. 1092.
It feems agreed, that it is no exception againft a perfon's giv-
ing evidence either for or againft a prifoner, that'he is one of the
judges or jjjrors who are to try him, 2 Haw. 432.
But where a juror is called upon to give his evidence, he
ought to |;iv£ it upon oath openly in court, and not be examined
privately by his companions. Bac. Abr, Evid. 4- 2—V* ^
108^,1
It hath been long fettled, that it is- no exception againft a
witnefs, tfiat he hath confelled himfelf guilty of the fame crime,
if he hath not been indided /or it; for if no accomplices were
to be admitted as witneffes, it would be generally impofhble to
find evidence to conviift the greatcft offender. 2 Hatv. 432.
' But an approver fhall in no cafe be admitted.' P. I, p. 113.
If any perfon be arbitrarily made a defendant to prevent his
teftimony, and nothing be proved againft him, he may be a
witnefs for the other defendants. Bui. N. P. 248.—2 Hawk.
It hath been adjudged, that where three perfons are fued in
rthrre feveral addons on the ftatute for afuppofed peijurv in tr.eir
evidence concerning the fame thing, they may be good witnei-
fes in fuch adtions for one another. 2 Haw. 432.
4 No negro, mulatto or Indian fliad be admitted to give eyi
4 dence, but againft or between negroes, mulattees, cr indians,
V. L p. 289.
There were two witnefles to a deed, and one of them was
blind, it was ruled by Holt chief jufticc, that fuch deed might
be proved by the other witnefs, and read; or might be proved,
without proving that this blind witnefs is dead; or without hav-
ing
EVIDENCE. iSs
"inp; him at the trial, proving only'his hand, L. Paym, 734.
Wood and Drury.
If a witnefs is beyond the fea, it is ufual to prove his hand,
and that he is beyond the fea. 12 Viner. 224s
There wer« two witncfles to-a bond, one in Aft lea-, and the
other in Bedlam, mad: On an cider to prove an exit' it
viva voce in chancery, a v/Itnefs proved thefe lads, and Umii
hands to the bond as if dead. 12 Viner, 224.
If a witnefs to a deed is dead, it is not fufneient to prove his
hand writing, but it mult be proved alio that he is dead. 2
Aik. 48. ,
And where a perfon has lived abroad fbme years, after atrell-
ing a deed, there mult be ftihSfc proof of his death; otherwifc it
is, where the witnefs has live ! conftantlv in the country, (rum
the time of fublcribing his name to rhr day of his death; for in
th"f cafe, a flight evidence of his death is fuhicient, eipecndly
whe<e the perfon who proves his hand knew Him intimately^
and iwears that ke believes him d^ad. Id,
Bat where the w'tnefs is dead, it r jfufHc.'ent to prove the
ivitrefs's hand, without proving the hand of the party. 12 Pi*
tier, 224. * ^ •
The layings of a ijfttd man are not to be given in ev:dencd
to prove a particular futh they are only to be admitted in proof
of general ufages a d cuftoms; but as for a particular faift,* U'mg
in the kn wledge of a pavticu'a- perfon, by his dea£h the evi-
dence is loft. St Tr, V5 456
And it hath been agreed, that the evidence g:ven by a vaiti
hefs at one trial, cannot in the ordinary courfe of juftice be
nude ufe againft a defendant, on the death of fuch witnefs at
another trial. 2 Haw, 430.—-But this muft be underftood in
criminal cafes, for in civil adfions the pradiice is other wile. See
Onjl N. P. 231.
in the cafe of murder, what the deceafed declared after ^he
wound given, may be given in evidence. 12 Finer, iAi.
But where fuch declaration is reduced into willing, the wri%
ing itfelf muft be produced, and not evidence thereof given
I'iva voce. Id. 119.
It is a general rule that hearfay is no evidence; for no evi-
dence is to be admitted but what is upon oath; for if the fuft
Ipoech was without oath, another oath that there was fuch Jpeec h„
pukes it no more than a bare fpeamng, and fo of no vtdue in a
ceurt of juftice; and beftdes, toe advuie paity had no opportu-
nity ;f a ciofs examination; and if the wiineis is living, what
he has been heard to fay is not the be ft evidence that tuc nature
' of
1S2 EVIDENCE.
of the thing will admit. Bat *ho' hearfay ought not to be al*
lowed as diredt evidence, yet it may be allowed in corroboration
of a vitnefs's teftimony, to (hew that he affirmed the fame
thing before on other occafions, and that he is flill conflant to
himfelf. So where the iffiie is on the legitimacy of a perfon,
it feems the pra£tice to admit evidence of what the parents have
been heard to fay, either as to their being or net being married,
for the prelumption arifing from the cohabitation ii eitW
llrengthened or deftroyed by fuch declaration, which altho' not
to be given in evidence diredfly, yet they may be affigned by
the witnefs as a reafon for his belief one way or other. So hear-
fay is good evidence to prove who was a man's grand-father,
when he married, what children he had, and the like, of which
it is not reafbnabie to prefume that there is better evidence. So
to prove that a man's father or other kinfman beyond the fea
i^ dead, the common reputation and belief of it in the family
gives credit to fuch evidence j and for a ftranger it weuld be'
good evidence, if a perfon fwore that a brother or other near
relation told him fo, which relation is dead. So in quefticnS
of prefcription, it is allowable to give hearfay evidence, in order
to prove general reputation; and where the iffue was of a right
to a way over the plaintiff's clofe, the defendants were admitted
to give evidence of a converfation between perfens not interefled,
then dead, wherein the right to the way was agreed. Theory of
Evid. in. H2.
By V. 1. (ti. R. Cond. 1786. c. 26) p. 36. it is enadlecf,
* That any perfon abfenting himfelf beyond fea, or elfevvhere, for
* fevui years fucceffively, lhall be prelumed to be dead, in any
* cafe wherein his death (hall come in queftion, unlefs proof be
4 made that he was alive within that time. But an eftate reco-
4 vered in any fuch cafe, if in a fubfeqaeni action or fuit, the
4 perfon prefumed to be dead, fliail be proved to be living, fnall
e be retbored to him who fhali lave been evibfed; and he may
4 moreover demand and recover the rents aul profits of the ef-
4 tr.tr, during fuch time as he Ihail have been deprived thereof,
* with lawful inteicfl.5
IV. Of process to cause witnesses to appear.
The compuifory mean* to bring in witndfes, are of two
kinds. 1. By pr«cefs cfjubpetna iilaed in the commonwealth's
name, by the juilices, or others, where the trial is to be. 2.
Which i-. the more ordinary and more eflbbtual means (in cri-
minal cafes) the jufliccs who commit the offender may at that
time, ox at any time after, w^d before the trial, bind over the
witnedes
EVIDENCE. 183
witnefies to appear at court, and in cafe of their refufal either
to come, or to be bound over, may commit them for their con-
tempt in fuch refufal. 2 H. H. 282,
Where a witnefs is a prifoner in execution for debt, he muft
be brought up by habeas corpus ad tejlijicandum, to give his evi-
deuce, St. Tr. y. 2, 580. V. 4, 37.
Witneffes are privileged from arreft, by the Uws of Virginia.
See 4 Arrejld
An attachment was granted again ft a witnefs for failing to
attend, after having been ferved with a fubpoena, and receiving
one guinea, and the promife of a guinea a day, during his at-
tendance, and his charges paid; altho' the party for whom hs
was fummohed, had his remedy, by aftion, on the ftatute of
Ehz. L. Raym, 1529. Wyat & IVinkford,
But, to ground an attachment the fervice of thefubpoena muft
be on the pcrfon of the witnefs, 'and not on his fervant:—And
by Lee C. y. it hath been folemnly determined, that you mult
not only have an affidavit of tendering the real fees, but like wife
of .a tender cf reafonable charges, to ground an attachment.
Cas. Hardjj. 313. St fa. 1054. Small & Whitmill.
So where a funi was tendered to a witnefs, which, in the
opinion of the court, was too fmall, an attachment was refuftdi
Stra. 1150,—Chapman & Royntou.
So, where a witnefs was fubpceuaed at home, but no tender
of fees made, who afterwards attended at court, but refufed to
be fworn, ajiho' he was there tendered his fees; the court rc-
Jufed an attachment, faying, that a witnefs improperly fupcenaed
was to be considered as a liander by, and it was no contempt
for a ftander by to refufe to be fworn. Blacks. Rep. 36. BoiyLs
& Johnfon,
And by the court, in the cafe of Hammond and Steward^ the
witneftes ought to have a reafonable time to put their affairs in
cider, that tdeir attendance upon the court may be as little pie-
judice to themfelves as poffible. Sir. 510.
In criminal cafes, if a witnefs hath been bound over, and do
pot appear, he ftiall forfeit his recognizance,
V<. OJ the manner of giving evidence.
He who affirms the matter in iftue, whether plaintiff or de-
fendanr, ought to begin tp give evidence. Lit. 36.
The evidence bom for and againft a prifoner, ought to be
upon oath.
But this is not always neceftary; and may now be dlfpenred
with
i34 EVIDENCE.
with, in favour of thofe whofe religious fcruples will not pcrrnh
them to take an oath See title c Oaths '
It is no fatisfadl inn fi.>r a witnefs to fay, thathb thinks or per.
fuades himfe'f; and this for two reafons ; by Coke ch ef juftice:
i. Bccaufe the judge is to give abfilute fentence, and ought to
have more ground than thinking. 2. Bccaufe judges, as judger,
are always to give judgment, frcundum alhgata et probata, not-
withftanciing that piivate perfonS think otherwiff. Dyer, 53.
Tiie c >urt may indulge a p/ffoner in examining the wit -efts
aparr, but he cannot demand it of right. St. Tr. F. 4. 9.
In t>fes of life, no evidence is to be g'ven againlt a prifo-
ner but in his prefence. 2 Haw. 428.
In ^very iffue, the affirmative i> to be proved. A negative
cannot regularly be proved; and therefore il is fufficieut to deny
what is affirmed, until it be proved; but when the affirmative
is proved, the other fide may conteft it with oppohte proofs,
for this is not properly the proof of a negative, but the pro» f
pf fonie proportion totally inconfiftent with what is affirmed;
as if the defendant ha charged with a trefpafs, he need only make
,a general denial of the fact, and if the fact be proved, then he
may prove a proportion inconfiftent with the charge, as that he
was at another place at the time, or the like. Th,ory of Evid.
Ii& 11
But to this rule there is an exception of fuch cafes, wherp
the law prefumes the affirmative contained in the iiTue. There-
fore in an information againic lord Hallifax for refuiing to deli-
ver up the rolls of the auditor of the exchequer: the court of
exchequer put the plaintiff upon proving the negative, namely,
that he did not deliver them; for a perfon fhall be prefumed
duly to execute his office, till the cor trary appear, id. 117.
ii rr. oner may not rail uffneffes to difprove what his ovyri
virneijts ffive fvvorn. St Tr. V. 4. 7^4. 792.
A witnefs fhall not be permitted to read his evidence, but he
may look upon his notes to refreili his memory. St. Tr. K
j-i vitncfi (hall not be crrfs examined, till he has gone thro*
tve tvidtnce fur the party on yvhoie iide he was produced. St.
Tr. F 2. 792.
And it ffi.ms agreed, that where a witnefs at one trial varies
frm liis own evicence at another, in relation to the fame mat-
f t, f.c1 variance may be given in evidence to invalidate his
tebtmory at the iecond nid. 1 Haw- 430.
'1 hr coiinf J ol Ivo party which doth b« gin to maintain the
jl-e. huy.i to cor.Ciudd, Tri.p.pais. 220»
V9
EVIDENCE. 18$
If, in the courfe of the trial, either party offer evidence which
js thought to be inadmiffible by the other, and the Court do not-
withftanding admit it, the party who moved the court to reje$
the evidence, may except to their opinion. See Bull. N. P. 314.,
But, if on the evidence given a doubt in law arifes, or either
party confid,ers it as infufficient to fupport the iffue joined, he
may demur to the evidence, and thus arreft the caufe from the
cognizance of the jury, (except fo far as to affefs conditi >nal
damages) and fubmit it to the court, on the law arifing from
the fails dated in the demurrer. See Bull. N. P, 313. Har~
grave's Cake Littleton 155. p. note (5)
As bills of exceptions,' and demurrers to evidence, frequently
occur in practice, it is prtfumed that the folio wing precedents
will be a proper conclullon to this title.
I
Bill of "Exceptions.
a. r. i
v. > In debt, (cafe &c. as the a&ion is.)
B. D. J.
Be it remembered thai on the trial of this caufe, the counfel for
the plaintiff (or defendant, as the cafe may be) to maintain and
prove the iffue, 6n his part gave in evidence, That &c. (here let
out the evidence offered:) To which evidence the defendant (or
plaintiffas the cafe may be) by his cbunfel, objedled as improper
to go to the jury, whereupon the matter iyas referred to the court;
who being of opinion that the faid evidence, was proper to go to
the jury, the defendant (or plaintiff, as the cafe may be) by his
counfel, excepted to fuch opinion, and prayed that thefe his exceptions
mffht be Jealed and inrolled, purfuunt to the ad of the General /f-
fmbly in that cafe made and provided', and it is accordingly
dyne.
Thelc exceptions rauft be figned by a majority of the juftices
prefent. See V. I. p. 49.
Bi Is of exceptions may alfo be taken for a mifdireilion in the
judges orjuli ices See Hargrove's Coke Littleton, 1^6. "^Blacks 2^2
, This bill is to prevent the precipitancy of the judges, and
ought to be allowed in all courts, and in all places of pleadings,
and may be put in at any time before the jury have given their
verdict. Trials per pais. 229.
. It muft be tendered at the trial;—and reduced to writing
while the thing is tran{a£ting. Bull. N. P. 3^5.
If a judge allow the mat"er to be evidence^, but not conclu-
five, and fo refer it to the jury, #0 bill of exception will lie.
T» Raym. 404, 405.
It
186 EVIDENCE,
It ought to he upon fome point of law, either in admitting Of
denying of evidence, or a challenge, or fome matter of law arif-
ing upon farts not denied, in which either party is overruled by
the couit. Prdl. N. P. 316.
If a bill be tendered, and the exceptions jn it are truly ftated,
the judges ought to fet their feals to it; but if the bill contain
matters falfe, or untruly flaied, or matters wherein the party was
not overruled, they axe not obliged to leal it. Bull, Jf, P. 316.
3 Bunks 372.
If the judge refufts to %n the bill, a writ on the ftatute may.
be awarded again!! him, commanding him to do it If he returns
that the fr&s are not truly flatcd, when they arc, an action fora
faife return will lie, and if they are found rue, damages will be
given, and a peremptory writ commanding the fame. % Inft, 426.
The pjrry grieved may have a writ of error, and may afhgn
error upon that bill fealed, and Jfo in t.*e record, or in one of
them at his plcafure. P. N. B, 11.
A bill of exceptions has been refufed in criminal cafes. 1 Lev.
68.- Keyling, 15, 1 Sid, 84.—But it has been allowed in "in in-
dirtment for a trefpafs. 1 Leon, 5.—-Alfo in an information jn
nature pf a quo "warranto. 1 Vent, 366. ' ''
Demurrer to evidence.
A, P. 1
v. > In delt (cafe &c. as the action is.)
B. D. J
The flaintiff hy his counfef in this caufcy produces in evidence
to'the jury, to prove and maintain the iffue joined on his part,
That &c, fhere Hate the evidence) And the /aid defendant fays
that the aforefaid mutter to the juror's aforefaidy in form aforefaidy
Jhnvn in evidence hy theJ'aidplaintiff, is not fuffcicnl in law to
maintain the fald ifue joinedy on the part of the (aid plaintiff and
that he the faid defendant to the matter aforefaid Jhewn in evi-
dencey bath no nectffp, nor is he obliged by the laws of the land to
anfwer; and this he is ready to verify: IVhetefore for want of
fvffcient matter in that behalffhewn in evidence to the jury afore-
foidy the faid defendant prays judgmentr and that the ji&vrs afore-
/aid, be difekargedfrom giving any verdiit upon the faid iffue ^fc,
and that the plaintiff be barred of having a verdict (Ac.
Joinder in Demurrer.
And the faid plaintifffaith, that he hath given fafferent matter
in evidence, to which the defendant hath giyen no unjiver (Ac,
and
EVIDENCE. 187
find demands judgment^ and that the ju*y le dlfehargcf and that
the -defendant he cmviRed &c.
A demurrer to evidence admits the truth of all fa<5K, which,
upon the evidence ftated, might be found by the jury in favour
of the party offering tlie evidence Doug 133.
The judgment on a demurrer to evidence it, that the evidence
was or was not fuffiJent to maintain the ifue. Doug* 223. Bull*
N.P. 313.
When evidence is demurred to; the jury may a fiefs the da-
images conditionally,—If they do not, and judgment on the de-
murrer js given for the plaintiff", there fhall be a writ of enqui-
ry —And after the execution thereof the defendant may take
advantage of any objection to the declaration, by moving in ar-
reft of judgment, or bring a writ of error. Doug. 223.
If one demur properly the other ought to join. Bull. N. P,
313. Examination, See 4 CRIMINALS.*
EXECUTION.
UNDER this title I fhall only confider the execution of a
criminal: So much of executions in civil cafes as coines
within the plan of this publication is treated of under title 4 She-
riffs.'
Where a perfon attainted hath been at large, after his attain-
der, and afterwards is brought into court, and demanded why
execution fhould not be awarded again!! him, if he deny that
he is the lame perfon, it fhall be immediately tried by a jury re-
turned for that purpofe, 2 Hawk. 463,
The court may command execution to be done without any
writ. Ibid.
In fixed and ffated judgments the law makes no diftin&ion
between a common and an ordinary cafe, and one attended with
extraordinary circocnftances; for which re'alon it hath been a;!-
judged that the court cculd not order the hand to be cut off", or
the body to be hung in chains. 2 Hawk. 413.
But the execution cf the judgment may be pardoned in part
by the executive5 as where the judgment is hanging, behead-
lug, emboweling, and the like; all may be pardoned but the
b.-heading, whereby the judgment is not altered, but part of it
remitted, 2 H* H. 412.
It is clear that if a man condemned to be hanged come to
life, he fhall be hanged again, for the judgment was not exe-
euted till he was dead. 2 Hawk* 463.
Extortion
a 88 EXTORTION.
JT is faid that extortion in a large fenfe figniiies any oppref-
fion under colour of riglr; but that in a ftrict fenfe, it ltg-
nifies the taking of money by any officer, by colour of his office,
either where none at all is due, or not fbmuffi is due, or where
it is not yet due. i Hawk. 170.
Juflices of the peace are bound by their oath of office, to
take nothing for their official proceedings. And generally no
public officer in this commonwealth, fhall take any other fee,
or reward for doing any thing relating to his office, than ibme
law in force gives him; it hath been determined that officers
doing otherwife are guilty of extortion. Dalt c 41.
It has often been reiolved, that a promile to pay them money
for doing of any thing, which the law will not fufflr tnem to
take any thing for, is merely void, 1 Hawk. 170.
Punijhmeni.
At the common law, this offence is feverely puniffiable at
the fuit of the commonwealth, by fine and imprifonmui:, and
alfo by removal from the office in the execution whereof it was
committed. 1 Hawk. 171.
The punifhment of this offence in certain officers is declared
by VI. (17, R. Cond, 1792)/". 63. which enads, 4 That no
4 treafurer, keeper of any public leal, councillor of .ftate,
4 counfel for the commonwealth, judge, clerk of the peace,
4 fheriff, coroner, efcheator, nor any officer of the common-
4 wealth, fhall take any manner of reward for doing his office,
4 other than is allowed by law. And he that doth, fhall pay to
4 the party grieved, the treble value of that he hath received,
4 fhall be amerced and imprifoned at the difcretion of a jury, and
4 dilcharged from his office forever. Any perfon may fue for
4 himlelf and the commonwealth, and fhall have the third part
-4 of the amercement.
4 2. A candidate for the General Affembly, who fhall di-
4 redly, or indiredly give or agree, to give any eledor, or pje-
4 tended eledor, money, meat, drink, or other reward, in or-
4 der to be eledied, or for having been cleded for any county
4 &c. fhull be expelled, and rendered incapable of being eleded
4 for 3 years.
4 3. A candidate for Congrefs, of any perfon in his behalf,
4 being guilty of the above offence, forfeits 1500 dollars, reco-
4 verable by adion of debt, to the ufe of any perfon who will
4 fue.
An indidment will lie againft the offender, notwithftanding
thf fbecial penalty provided by this ad. Dak. Cb. 71.
(A)
EXTORTION. iS'i
(A) Indictment againfl a corocqr for extortion,
county to wit.» . .
The jurors for the c6mrnonnv°alth ttfc* upon iieir oath prefc •*,
that W-N-, Late of the parijh of S, in the county- of gent*
(the fitid parijh of S, bang the ufunl place of abode "of him the faid
W N,J on the day of in the year of the com-
monwealth &c. then being one of the coroners of the faul common!-
wealth for the county of /it the parijh aforefaid, in the county
aforefaid, by colour of his faid office, unlawfully and unjujlly tit t
demand, extort, receive, and take tf and from {me* R S, the J an
of dollars of lawful money of this common wealth, for a d at
his fee, for executing and doing of his office aforefaid, to ivit, upon
the view of the body of one J C, late of in the jaid county
of glazier, ivho at the parijh of S, aforefaid, in the county
aforefaid, on the day and year above mentioned, was fain by mi]-
adventure, and there fay dead, in contempt of the laws of this
commonwealth, to ihe great damage of the faid R S, againft tue
form of the jiatutes infuch cafe made and provided, and againfl
the peace and dignity of the commonwealth,
False News, (See BARRATRY)
False Token, (See CHEAT)'
Felo pe se, (Sei HOMICIDE)
FELONY, MISPRISION
Of FELONY, and
tNeftbote,
I. Feiony.
SO various are the derivations of the word felony, that h
would be an ufelefs talk to undertake a recital of the difFe-
rent opinions of writers on the fubjeft Sudice it to obferve, in
the words of judge Blackfone, tnat 4 Felony in the general accp-
tation of the Englijh law, comprifes every fpedes of crl.ie, which
occafoned at common law the forjiiture of lauds cr goods d d. Blocks,
95.
II. Misprision of felony.
MifpriRon of felony (from the French word mefpris, a neglect
or contempt, (3 Irf, 36.) is the concealing of a felony which
Y. a
i jo FELONY, MISPRISION &c.
a man knows,..but never confentcd to: for if he confented, he
is either a principal or acceffary in the felony, and confequently
guilty of mifprifion of felony and more, i H. H. 374.
For it is faid, that ever) felony includes mifprifion of felony,
and may be proceeded againft as a mifprifion only. 1 Haui.
125. ...
If any perfon will faVe himfelf from the crime of mifprifion, he
ihuft difcover the offence to a maglffrate, with all convenient
fpeed that he can. 3 lnjl. 140.
Mifprifion in a larger fenfe, is ufed to fignifyevefy confidera-
ble mifdemeanor, which hath not a certain name given it by
the law. 2 Burn, JuJl. 172.
This offence is ufually punifhed by fine arid imprifonment,
III. 1heft bote.
Theftbote (from the Saxon words thefts and bote boot or amends)
is, where one not only knows of a felony, but takes his goods
again, or other amends not to profecute. 1 Haw. 125.
But the bare taking of one's own goods again, which have
been ftolen, is no offence unlefs fome favour be fhewn to the
thief. 1 Haw. 125.
This offence is very nearly allied to felony, and is faid to
have been anciently puniflied as fuch; but at this day it is pu-
nifhable only with ranfom and imprifonment, unlefs ,it were ac-
companied with fome degree of maintenance given to the felon*
which makes the party an acceffary after the fadt. i Haw. 125.
IF. Felonies by the laws of this commonwealth.
J 1 Jon at common law—Felony without clergy. See 4 Burn-
inc.' and V. I. p. 50.
j^4^/;/^i-_IvIarr)ing a i'ecbnd hufband or wife, the former be-
;ng alivej is f lony. See V. I. p. 205.
Breaking diveiiiug- hovfes c?Y.—Felony without clergy. See
4 Larceny.' and F: I. p. 5©.
Buggery-— Ftlony without clergy. See 4 Buggery,' and Fl
/. p. 256.
Burglaiy—Felony Without clergy. See 4 Burglary,' and
V. L p. 50.
Burning—Felony without clergy, to burn any houfe &c. See
4 Burning,' and V. I. p. 215; 50.
Certificates—Felony without clergy, to fteal them or prefent
them for payment, knowing them to be ffolen. See 4 Lar-
ceny.'
FELONY, MISPRISION, &c. 191
cf.ny.' aud F. I. p. 261.—Alio felony without clergy to
forge certificates Sze. F. I. p. 260.
Church, chapel, or meeting houfe—Stealing theieout, felony
without clergy. See 4 Larceny.' and F. I. p. 50'.
Coin.—Counterfeiting, or pairing counterfeit, khowingly,—»
1 ftlohy without clergy. See"4 Coin,' and V\ L p. 260.
Flour—Forging the receipt or ftampdf any infpettorof flour,
felony without clergy. F, I. p. 260.
Forgery—See various inftanCefc under title 4 Forqery.'—?
' wnich* is felony without benefit of clergy,
Hemp ™Forging the receipt of any infpeitor of hemp, felony
without clergy. F. I. p. 260. *
Hogfealihg—A perfbn convi&ed a third time of hogftealing,
mall'he adjudged a felon. F. I. p. 187:
Horfe-f'ealing—Felony without clergy, to fteal any horfe,
mare,'Or gelding, foal or filly. See 4 Horse-ste aling.'
and V.l.p. 188.—Felony to'receive any horfe knowing
him to he ftolen,1 or to harboqr or conceal the horfe- ftealer.
F'.l.p. 188. • " 1 '
Land Warrants—Stealing them, felony without clergy. See
4 Larceny.' and F. /. p. '26'i. ■ • *
Loan~Qff.ee "certificates &c.—Stealing them, or preferring
them for payment, knowing them'to be ftolen, felony with-
out clergy. See 4 Larceny,' and F. I. p.' 261.
Maim—Felony to maim &c. See4 Main!,' and F. I p. 188.
Murder—Felony without clergy. See4 Clergy,' and F, L
5=- V" ' " ' " ' '
Rape—Felony without clergy. See 4 Rape,' and F. hp. 256.
Rolbery—Felony without clergy. See 4 Robbery,' and Fl
I- P- 5°' ' '' *' "
Records—Stealing record, writ &c. felony. S.ee ^ Larce^-,
ny,' and F. I. p. 50. ' ' " '
Regijfer of the Ham-office—Counterfeiting his feal, felony
without clergy. See F. I. p. 261, ' f "
Slaves—Confuiting, advifing, or confpiring to rebel, make
infurreblion, or commit murder, felony -'without clergy,
V. I. p 198,—"Preparing, exhibiting, or adminiftering,
medicine, felony without Clergy. Id. § 22.—Put if iiof'
exhibited Hge with ill intent, or attended With' bad c'onfe-'
quences, fhall be acquitted. Id. § 23. ' ,
So, if adminiftered he. by content - of owner, and em-
ployer, it is hot felony. Id. § 24.
Stealing free'perfm'&hd felling hirri as a Have, felony with-
out clergy. Id. § 28.
Stealing JIaves, felony without clergy. Id. § 29.
Xolacco
J 92 FELONY, MISPRISION &c.
Tobacco—Stealing tobacco on the high way, felony. V. I. pa
291. . • . -
'Tobacco—Infpedlors of, bluing receipts for tobacco not deli-
vered &c. felony without clergy—See V.l.p, 278.—Forg.
ing the {tamp or receipt cf any Tinfpe£tor of tobacco, the
fame. V. I. p. 260.. . ; •
M recks—Stealing from a veffel in diftrefs, or wrecked, fe-
lony without clergy. V.l.p. 15.
Ware-koujes or Store-houfes—Breaking them in the night or
day, and Healing thereout, above the value of 4 dollars,—
felony without clergy. See 4 Larceny,' and V. 1.p. 216.
Women—Taking away heireffes &c. felony. See 4 Women,'
and./7. 1. p. 206.,.'. •; , > •
The comprehensive term Felony, would naturally embrace a
great variety of heads, fuch as Homicide, Robbery, Burglary,
Rape, Forgery, Larceny Is c, , But as all felonies are mated of
under their relpebtive, titles; and the method of bringing the
offender to juft ice, may be found under titles Criminals, Arrejl,
Hue csf Cry, Bail, Commitment, Jail la "Jailor, Arraignment,
Indictment, Mute, Confejton, Juries & Juiors, Evidence, Cler-
gy, Judgment, and Execution, it .would be an unrieeefTary re-
petition to infeit any matter in this place, relative to thefe kve-
ral titles. , tj
Feme covert, See4 WIFE,'
F E " N ' C E S.
7~^Y V, L.page 284, of the Revifed Code, 4 If any horfes,
. 4 mares, cattle, hogs, flieep, or goats, fhall break into.
4 am/ grounds inclofed with a ftrong and found fence, .5 feet,
*> high, and fo clofe that the beafls could not creep through,—or
4 with an hedge 2 fret high, upon a ditch 3 ieet deep, and 3
4 feet broad—-or indtead of fuch hedge, a rail fence of 2 feet and
4 a half high,, the hedge or fence being fo clofe that none of the
4 fold creatures can creep thro', which iliall be accounted a law-
4 tul fence, the- owner of fuch creatures, fhall, for the fir ft cf-
4 fence, make reparation to the party injured, for the true value
4 of the damage, and for eeery fublequent trefpafr, double da-
4 iragosj to be recovered with cods in any court of record:—
4 Fcr a third oitence, the party injured may cither kill the bead,
4 without teir.g liable to an action, or may "fire for his dutna-
FENCES.
2. 4 Upon complaint made to a juftice for the county., wherein
1 fuch trefpafs fhall be, fuch juflice ihill, without delay, ifTue
51 his order, to three hone't, and dllinrcrei!eel houfe-keeper, re-
* citing the complaint, and lequiring them to view the fence
4 where the trefpafs is comp*aine|[I of, and to take memorandums
* of the fame, and their teltimony in fuch c-ife fhall be ^ood evi-
* dence to the jury, touching the lawfuhiefs of the fence-'
3. 4 If any perfon demnified for want of fuch fufficient fence,
4 fhall injure, or caufe to be injured, in any manner, any of the
1 kind of animals above mentioned, he tfhall pay to the owner
4 double damages, with cofts, recoverable as aforefaid.'
Warrant tQ three house-keepers to view the fence.
county to wit.
To AH, B H, and C IT, houfe-keepers of this county,
Whereas J TC, ef ihe fatcL county, planter, hath this day com-
■plained to me J P, a juftice of the peace for the county aforefaid,
that a horj* belonging to W N, of the faid county, did lafl night
brea/e into the corn feld of the faid J K, which was fenced and
enclofed according ta the directions of the aft of the General rlftlm-
bly in that ctfe made and provided, whereby he h'lth fuftained con-
fiderabie damagei thefe are therefore to require you forthivith to go
and view the fence of the faid corn field., and take a memoran lum
of the fame in writing, the better to enable you to teflify, if you
jhouid be required, concerning the premijes. Given, &c.
The act of 22. Geo. n, Ch- 15. gave to a fingle magiflrate
power to determine the cafe, where the trefpafs was under twen-
ty five (hillings. Under th:s law Mr. Starke has inferted the
Frm of a warrant, and convidtion.—-But as-the claufe gran'ing
fuch power to a fingle rrui'-riitrate is omitted in the ReviLd
Code, and is certainly unconftitutional, I have thought it im-
proper to give any precedents for that purpofe.
F L O U R.
HpilE e;:poitation of Flour having become an in tide of con-
fiderille importance in this fLta, the ic0'flanire have
found it necdiary to inforce obedience to the ieieral requifti'.ms
of the a& for, 4 regulating the inipecticn of flr:ur and bread,*
by impofir.g certain penalties, many of which are recovetable
before a juftice of the peace.
By
194 FLOUR.
£)' V. 1, (17 R Con J. 1792) page 238, of the Revifd Cu-k
(af'.c-r eou < crating the fevcral places at which infpedtions of
flour add bread ihal! be eflablifhed) it is ena&cd, fe5l, 3. 7 fat
the courts of tfm Everal counties in which thofe places are fitu-
ated, fhall annually ii September or October, appoint a perfon of
good repute, and ikill in the quality of flour, as ir.fpeftor. lit
cafe cf the dcaio, refuel, or neglecf, of a perforf fo appointed,
the jutiices of the coui.ty, or any three, may fill the vacancy,
by appointment of another, 'till the next court,, when another
appointment lhull be made for the balance of the year. The
court failing to appoint at the fime directed, the governor and
council may, and me perfon appointed after taking the oath here-
after mentioned, before a juflice of the peace, fhall in every in-
fiance be confidered as appointed by the court.
Seft, 4. All wheat flour brought to any infpe£fion for expor-
tation, fhall be merchantable, of due finenels, and without any
mixture of the flour of any other grain.
Sei't. 5. All bread and Hour cafks, for exportation fhail be
well made, of feaioned materials, tightened with iq hoops,
nailed with 4 nails in each chine hoop, and 3 nails in each up-
per bilge hoop; the Hour barrels fhall be 27 inches in length in
the Haves, and 17 - in the head in diameter; half barrels {hall
be 23 inches in length, and 12*- inches in the head in dia-
meter.
Se£i 6, Every miller of flour and baker of bread fhall brand
every calk for exportation "with a difhnguifhable brand-mark,
and mark the tare and nett weight, before removed from the
place of manufacture; under a penalty of 42 cents for every
cafk of flour not nailed and hooped as aforefaid, and for every
calk: of flour or bread, riot branded and marked as aforefaid, lo
be recovered from the miller Of baker; or from the perfon
bringing them to market, who may recover it again from the
miller or baker, provided he can prove he gave them notice he
intended to carry it away for exportation.
Set?."/. Every barrel of flour fhall contain 196 pounds, and
every half barrel 9S pounds 0/ flour; for the deficiency of every
pound under three, the miller and bolter forfeits 8 cents, and
more than three, 17 cents.
Sett. 8. All cafks wherein bread [andflour*) fhall be packed,
fhall be weighed and the tare marked thereon. And if any per-
fon fhall put a falfe or wrong tare on to the difadvantage of
the purchafer, he fhall forfeitfor every cafk fo falfely tared 83
cents; and the infpebtor, his deputy, or ailiftant, upon fufpicion,
' or
* By V. I. (18 R, Cond, 1793. c. 1) p. 323.
FLOUR.
br at the requeft of the purchafer, fliall unpack any cafk of flour
or bread j and if there is a lefs quantity of flour, than above di-
re&ed, or if the calk wherein bread (orjionr) is packed lhall be
found to weigh more than is marked thereon, the miller, baker
br bolter, fhall pay the charges of unpacking and re-packing, over
and above the penalties aforelaid; but otherwife the charges
fhall be paid by the infpeCtor, or by the purchafer, if the trial
be made at his requeft.
Sefl, 9. Every baker of bread for exportation fhall deliver
with it a manifeft of the contents, with his bra^d marked there-
on, and his name fubfcribed thereto, under the penalty of feven
dollars for every manifest delivered contrary thereto, and if on
trial any cafk of bread be found lighter than it is fpeciiied in the
manifeft, the baker forfeits in the fame proportion as is direCted
in the cafe of flour,
Seft. 10. Any cafk of flour brought to an infpe&ion for ex-
portatdon, fhall be examined by an in'pesflor, by boring thro*
the head of the cafk, with an inftrument not exceeding half an
inch in diameter:—if he fhall judge it merchantable agreeable
to the directions of this aCf, he fhall plug up the hole, and brand
the cafk in the quarter, with the name of the place at which he
is infpeCtor, with a public brand-mark, to be provided for him,
and aifo the degree of finenefs, as fuperpne, finey middling, Jhip-
for which the infpeCtors at Alexandira% Frederic kjburg,
Falmouth, Richmond, Manchejler, PeterJburg, Pocahunias, and
Blandford, fhall receive two cents for each cafk; at all ether
infpeCtions three cents. Unmerchantable flour, according to
the meaning of this law, fliall be maiked on the bilge, by the in-
fpedtor, with the word 4 condemned,' or may be fecured for fur-
ther examination, to be made within 20 days, and the infpeCtor
fhall receive from the owner, the fame rate and prices as if it
had pafled. A perfon diflatisfied with the judgment of an in-
fpe&or may apply to a juftice, who fliall iflue his warrant to
three indifferent perfons well fkilled in the manufacture of flour,
to view and examine the fjfme; who having taken the oath here-
inafter directed for an infpedtor, fhall view and examine the
fame; and if they or two of ihem think it merchantable, the in-
fpedtor fhall erafe the word 4 condemned,' and put fuch brand
on as they or any two fhail direCt, and repay to the complainant
his cofts; but if the judgment of the infpeCtor be confirmed,
the owner fliall pay the cofts of the review, and the infpe&or
three cents for each cafk. A perfon lading on board any vefTel,
for exportation any cafk ©f flour, marked 4 condemned,' or not
irsfpeCted, and branded as direCted by law, forfeits ten dollars
for each cafk exported, or laden for exportation*
k/j P L O U R.
Sell. it, A perfon packing flour or meal in a caffi, whirlr
has born lufjv-dted and branded with the name cf a miller, Tor-
fei\s 23 dollars mch cak, recoverable by petition and fuinmon«,
one half to the ufe of the informer, and the other to the miller
who has been ii j.ircd f>y fuch packing; and is liable to the action
of the party aggrieved.
Sell 12. Where any mill is fituated on navigable water,
below the falls, the owner may require the infpe&or neare't
thereto to attend and infpedt the flour manufactured by him;
and the infpeCtor or his deputy (hall attend and infpedt the flour
in the fame manner as if it had been brought to the infpec-
tor.
Self. 13. Every infpeCtor of flour before he enters upon the
execution of his office Avail make oath or affirmation.
That he will without favour, ajfeftion, malice, or pariialityy
cay efully infpell all four brought to himy and which he pall be
required to examine; that no four pall be pajjed or branded by
himy without his infpeliing the famey that he will not brandy or
caufe to be brandedy as pa{Jedy any cap or caps of foury that do
not appear to him to the bef of his pill and judgment, to be fufji-
ciently cleany well groundy fuueet and merchantabley that he will
mark on all caps of four the degree thereof According to the di-
relfions of this all; that he will carefully examine the caps in
ivbich four brought for infpell ion fall be contained; and that he
will not pafs or brand any fuch capsy unlcfs they be of fuch fizey
goodnefs and thicknefsy as by this all required.
Sell 14. No infpedtor Aiall purchafe any flour condemned,-
or of any other kind, 'except for his own uie, under penalty of
feven dollars for each barrel.
Seel. 15. If any perfon fhall alter the mark Aamped on any cak
of flour by an inlpeCtor, or Aiall mark or brand any calk of
flour, which has not been infpeCted, with any mark or brand
flmilar to, or in imitation of an infpeCtor's mark or brand, or
after an infpedlor Aiall have palled 2ny calk of flour as merchan-
table, Aiall pack into Inch calk any other flour, or alter any
cafk of flour Aiall be branded t condemned,' Aiall unpack and"
re-pack the fame in other caffis for exportation, fuch perfon Aiall
forfeit and pay the fum of feven do.lars for every calk.
Sell. 16. InlpeCtors may appoint aiiiftants, if he cannot alone
examine all the flour brought with fufficient difpatch, or Aiall
be incapacitated thro' licknefs; the affiAant Aiall take the fame
oath as directed for an ihfpeCtor, and Aiall be authorifed to act
as fuch.
Self. 17. The courts of the feveral counties in which an inw
fpeCtion is fituated, may at any time remove from office any
infpe&oc
F L O U R. 197
infpe&or of fiour,. for- negleft, malfeasance, or corrupt pradi-
ces, and may fttpply the vacancy by appointing another for the
refidue of the year. r
Sect, 18. Where the penalties in this do not exceed five
dollars, they may be recovered before a iingle magiftratej—•
where they are over that fum and do not exceed twenty dollars,
by petition,—-and where they exceed twenty dollars, by aftion
in the county where the defendant iefides, Or where the" offence
was committed:—and the profecutor may make oath before a
juftice of the peace of the nature of the action, afid that heve-
rily believes the defendant hath incurred the penalty and forfei •
ture thereby demanded, which the clerk upon a certificate thereof
to him produced, fhall indorfe upon the back of the writ, and
the defendant (hall be ruled to give fpecial bail. i
. By V. 1. (i8 R. Cond. 1793. c. 155. § 2) p. 323 of the
Revtfed Code', '.That part of the penalties which is to go to
'the ufe of the commonwealth, (hall be paid to the infpe£tor at
* the place where the offence fhall be difcovered, who fhall an-
* nually, to the court of his county, held in the month of Sep-
' tember, render a fair and juft account thereof upon oath, a
' Copy whereof fhall be Certified by the faid pourt, and being fo
' certified, {hall be by their clerk tranfmitted to the auditor of
' public accounts, who fhall debit the infpe£fr>r therewith, and
^ the infpe£lor fhall annually pay the amount thereof, deducing
' fix per cent, into the public treafury, on or before the firft day
f of "January, in each year; and in cafe of failure may be pro-
* ceeded againft in the fame manner as delinquent fheriffs/
(A) Warrant againft a miller, or person bring-
ing flour to an in fpetition, under s eft ions 5 & 6*
county or corporation of to wit.
To the conftable of the faid county, (or of the corporation of
Whereas information on oath hath this day been made to mi
J P, one of the ju/lices of the peace for the county (<jr corporation)
of or efaid.> by A J, that AO, c/ the county of hath brought
to this place for exportation, cafes of four, which are not
weil made of good feafoned materials, tightened with ten hoops,
fufficiently nailed with four nails in each chine hoop, and three
hails in each upper bilge hoop, agreeable to the a Si of the Gene-
rai JJJembly irt that cafe made and provided'. Thefe arc therefore
to require you to fummon the faid A O, to appear before me or
fame other jujlice of the peace for the county (or corporation) afore-
fetid
z#
2 9$
F L O U R.
faid, to few caufe why the penalty of forty two cents for each cafk
of four, as aforefaid, Jhould not be levied upon him according td
law. Given under my hand &c.
If for any other offence againft the above feclions, the war-
rant may be in the fame form, except in the defcription of the
offerice, which muft vary to fuit the cafe.
Judgment.
Upon hearing the teftimony it appears to me that the within-
. mentioned cafks of flour to the number of are not nailed
and hooped, as required by the a£I of the General Affembly, in
that cafe made and provided, therefore it is confidered that the
faid A O, do forfeit and pay the fum of being the fum of
forty-two cents for each cafk of flour not nailed and hooped as
required by law. Given under my hand &c.
J P.
(B) Warrant, cn seflion seven.
(As in warrant (A) to the word four) which do not contain
the quantity of one hundred and ninety fix pounds of flour, as
required by the atl of the General Afembly, hi that cafe made and
provided: Thefe are &c. to Jhew caufe why the penalty of eight
cents for each pound of four under three, and of feventeen cents
for each pound over three, of which each barrel falls fort of the
jaid quantity required by law, may not be levied on the jaid A O.
Gt-ven &c.
(Gj Warrant on section eighty and on s eft ion one,
of chap. 155, of the Revised Code.
(As in warrant (A) to the word four) (or bread) on each of
which cafs the tare is falfely marked \ Thefe are therefore frV.
to (hew caufe why the penalty of eighty three cents fould not be
levied on the /aid A O, for each cafk fo falfely tared, according to
law. Given 'Ac.
(D) Warrant to three indifferent persons to review
flour condemned by an inspector.
county to wit.
To A J, B J, and C J.
Whereas A C, of the county of hath this day complained
to me J P, a jujlice of the peace for the county of aforefaid, that
thro*
F L O U R.
thro' the ill judgment and want of fill in B J, an hfpedior of
four at , barrels of flour brought by the faid A C, to
the faid face for exportation, hath been condemned as unmer chant-
able, and the faid A C, being defrous to have a review of the
Jame according to law: Thefe are therefore, to require you, hav-
ing frft taken the oath required by the adi of the General Af 'cmbly%
entitled 4 An aft reducing into one the feveral afts, for regulat-
1 ing the infpeftion of flour and bread,' to view $nd examine the
faid barrels of flour, and if you, or any tivo of you, floall
think the fame to be merchantable, that you caufle the faid injpedior
to erafe the word 4 condemned,' and to put fuch brand on the faid
fldur as you, or any two of you, fall diredt; c.i/linguijhing the tie-
gree as dire died in the tenth fediion of the above recited laiv. And
you the faid injpedior are hereby required to pay due obedience to the
injunctions contained in this warrant, Jo far as ihe Jame t ejpedis
foe adis to be dene by you. Given iSc.
FORCIBLE ENfRY and DETAINER.
THIS offence is committed by violently taking or keeping
peffefljon pf lands and tenements, with menaces force,
and arms, and without the authoiity of lav/. This was formeily
allowable to every perlon diffeifed, or turned out of pufleiliou,
unlefs his entry was taken away or barred by his own negl.ee,
or other circutnftances. But this being found very prejudici-1
to the public peace, it was thought necefiary, by ftatute, to re-
ftrain all perfons from the ufe of fuch violent methods, even of
doing tm-mielves jtiftice; and much more if they have no juftic.:
in their claim. So that the entry now allowed by law is a peace-
able one; that forbidden is fuch as is carried on and main-
Lined with force, with violence, and muifual weapons: 4
Blacks 147.
However, even at this day, in an action of forcible entry,
grounded on thofe laws, if the defendant make himfelf a title'
which is found for him, he iliail be djfmifled v.uhoutan inquiry
into the force; for however he may be pu.iifhable at the fuh of
the commonwealth, for doing what is prohibited by ftatute, as 4
contemner of the laws, and diftuiber of the peace, yet ihe fiiall
not be liable to pay any damages for it to trie plaintiff, whofs
irjuftice gave him the provocation in that manner to right him-
felt". 1 Hawk, 141,
Offences of this nature being made fuch, not by the common
law, but by ftatute, I iliail ccuffider them, ' with the interpreta-
tions
£00 Forcible Entry and Detainer,
iions which have been put on fimitar flatutes in England, in the
following order.
I. ' What is a forcible entry, and detainer.
JL How they are punijhable by action at law.
HI. HoW punijhable by. indiulmcnt. -
IV. How punijhable by a jujiice, fierij},
mayor, '&c. ' " ' » .
V, How punijhable on a cirtiorari.
VI, How punijhable as a rlj.
VII. Precedents. 1 ■'•
I. What is a forcible entry, and detainer.
By V. 1. p. 15g, of the Revijed Code, 4 None (hall make any
" entry into any. lands and tenements, or 6ther poiTeffions what,'
4 foever, but in cafe where entry is given by law; and in fuck
4 cafe not with ftrong hand, nor with multitude of people, buc
4 only in a peaceable and eafy manner, and that none who fhali
4 have entered into the fame in a peaceable manner, fhall hold
4 the fame afterwards with forcej and if any fha!l do to the corw
4 trary,. on complaint thereof•to any jiiftice on juftices of the
4 peace, fuch juftice or juftices fiiall take fufBcient power of the
4 county, and go. to the place where fuch force is made; and all
4 the people of the county, as well the fhefiff as others, fhall be:
4 attendant on the fame .juftices, to go and affift them to arreft
4 fuch offenders,, upon pain of imprifonment. and amercement;
4 at the discretion of a jury.' : i •
The term 4 pojljpomf is'thought not to extend to a way, com=•
mon, office See. 1 Haivk. 146. ; ■
< Aot ivitkfirong hand, nor with multitude of people ] It feems
certain, that if one who pretends a title to. lands. barely go over
them, either with or without a great number of attendants,
armed or unarmed, in his way to the church or market, or for.
fuch like.purpofe,. without doing any a£t which, either exprefsly
<s>r impliedly, ,amounts to a claim of fuch lands, he cannot be
fafd to make an entry thereinto.' I Haw, 144.
Bur it feems that, if a peifon enter into another man's houfe
or ground, either with apparent violence offered to the perfon
of any other, or furnifhed with weapons, or company, which
may excite fear, though it be but to .cut or take away another
man's corn, grafs, or other goods, or to fell or crop wood, or
clo ?my other trefpafs, and though he do not put the party out cf
his
Forcible Entry and Detainer. 201
his poflefllon, yet it feems to be a forcible entry. Dalt. Ch.
126. ;
1 But if the entry were peaceable, and after fuch entry made,
they cut or take away any other man's corn, grafs, wood, or
other goods, without apparent violence or force, though fuch
ads arc counted a difsfvizing with force, yet they are not pu-
niftable as forcible entries; Ibid.
1 But if he enter peaceably,' and there {hall, by force or vio-
lence, Cut or take away any corn, grafs, or wood, or fnall for-
cibly or wrongfully carry away any other goods there being, this
feemeth to be a forcible entry, puniftiable by thefe ftatutes. Ibid.
So alfo (hall thofe be guilty of a forcible entry who, having
an eftate in land by a defeafvble title, continue with force in the
pofieftion thereof, after a claim made by one who had a right of
entry thereto, iHaw. 145; '* "
■ But he' who barely agrees to a forcible entry made to his ufe,
without his knowledge or privity, {kill not be adjudged to make
an entry within the ftatute. Ibid. '
■ . And, in general,1 it feems clear that to denominate the entry
forcible, it ought to be accompanied with fome circumftances
61 actual vioLricb or terror'; and that an entry which hath 110
other force than fuch as is implied by the law, in every trefpafs
whatfoever,' is not within thefe ftatutes. Ibid.
As to the matter of violence, it feems to be agreed that an
entry may be forcible, hot only in refpe£l of a violence a&ually
done to the perfon of a man,1 as by beating him if he refule to
relinquish his pofie^Tion,' but alfo in refpedt of any other kind of
violence in the manner of the entry, as by breaking open the
doors of - a houfe, whether any 'perfon be in it or not, efpeci-
ally if it be a dwelling houfe, and perhaps alfo by an a& of out-
rage after the entry, as by carrying away the parly's goods, but
it feems that an entry is not forcible by a bare drawing up the
latch, or pulling back the bolt of a door, there being no appear-
ance therein of its being done by Jiron'g haridy 6r multitude of
People. And it hath been holden, that an entry into a houfe
through a window, or by opening a door with a key is not for-
cible, i Haw. 145.
1 In refpe£t of the circumftances of terror, it is to be obferved
that wherever a man, either by his behaviour or fpeech, at the
time of his entry, give thefe who are in poflefiion juft caufe to
fear that he will do them lome bodily hurt, if they will not give
way to him, his entry is efteemed forcible, whether he caufe
fuch a terror, by carrying with him fuch an unufual number of
attendants, or by arming himlblf in fuch a manner as plainly in-
timates a defign to back, his pretenftons with violence, or by
adfually
202 Forcible Entrv and Detainer.
actually threatening to kill, maim, or beat, thofe who (hall con-
tinue in poffeffon, or by giving out fuch fpeeches as plainly
imply a purpofe of ufing force; a?, if one fay that he, will keep
his poffeffion in fpite of all men or the like. i Hawk. 145.
But it feents that no entry iliall be adjudged forcible from any
threatening to fpoil anothers goods, or to defiroy his cattle, or
to do him any other fuch like damage, which is not perfonal.
I Hawk. 14O.
However, it is clear that it may be committed by a fingle
perfon as well as by twenty. Ibid.
But, ne^erthelefs all thofe who accompany a man when he
• makes a forcible entry, {hall be adjudged to enter w th him, whe«
ther they actually come upon the lands or not. 1 Hawk. 144.
It teems certain that the fame circumftances of violence or
terror, which will make an entry forcible, will make a detainer
forcible aifo, and a detainer may be forcible whether the entry
were forcible or not. I Hawk. 146.
. II. How they are punijhable by ablion at law.
The ftatute of England cf 8. Hen. 6. c. 0. Jeci. 6 gave to
the party injured a recompence by treble damages ; but as that
remedy is not recognized by our laws, the party feems to be left
to his action at common law.
Ill. How pumfhable by hid'Stment.
1 his offence being alfo of a public nature, may be puniftied
by indictment at the fuit of the commonwealth. See Dalt. c,
i290 i Hawk, 147.
A1 d the tenement in which the force was made muft be def-
cribrd with convenient certainty, and mull let forth that the
defendant actually entered and oufted the party grieved, and con-
tinueth his puiieilion at the time of finding the indictment;
otherwife he cannot have refutation, becaufe it doth not appear
that he needeth it. 1 Hawk. 147, 149. 150.
But if a man's wife, children, or fervants, do continue in the
houfe, or upon the land, he is not oufted cf his poffeffion ; but
his cattle being upon the land, do not preferve his poffeffion.
Halt. Cb. 132.
An indictment fim forcible enjry was quafned for not fetting
forth [hat the party was ieized or diffeized, or whqt eftatc he
had in the tenement; for if he bad only a term of years, then
the entry muft be laid, into the freehold cf a. in the pofltffion
ofB. 3' Salk. 169.
Forcible. Entry and Detainer. 203
By V. 1. p. 160. § 8. Tenants for years and by el'fity fhall
have the fame remedy as thole holding eftates of freehold or in-
lieritance,
IVHow puntJJjable by a juftice, Jher{jf\ mcyor &e.
The fame power which is given to jujiices of the peac?? and
jherijfs, in their counties, is alfo gi anted to mayors, aldeunen,
zndjerjeants, within their cities, V. I. p. 160, § 6.
No warrant of forcible entry &c. fhall be granted without the
oath or affirmation of the party praying it. Id, § 2.
The names of the perfons fo charged fhall be inferred in every
fuch warrant; to which perfons the fheriff or officet fhall give
3 days notice of the time and place of t taking the inquilh.ion.
Without fuch notice, no jury fhall be fworn to enquire of a for-
cible entry he. Id. § 3,
Whether the perfons making fuch entries, be prefent or de-
parted before the corning of the juftices, they may proceed jn fome
convenient place, at their difcretion, to enquire of the forcible
entry and detainer;—if a forcible entry he. be found contrary
to this add, the juftices fhall caufe the party fo put out, to be
re-feized, or re-poffeffed. Id. § 4.
The juftices &c« making luch enquiries, fhall direfft their
warrants &c. to the fheriff of the lame county, to caufe fit per-
fons to come, to enquire of fuch entries: a fheriff failing to do
his duty forfeits 80 dollars, recoverable before any court of re-
cord; as well by indi&meot or information to be taken only for
the commonwealth, as by bill at the fuit of the party grieved, as
well for himfelf as the commonwealth. Id. § 5.
It is faid that juftices may proceed to enquire of forcible en-
tries Sic. altho' no complaint be made to them. Lamb. 147.
And the defendant if ne is not prefent, ought to be called to
anfwer for himfelf; for it is implied, by natural juftice, in the
conftru&ion of all laws, that no one ought to fuffer any preju~
dice thereby, without having firft an opportunity of defending
himfelf. 1 Haw. 154,
And it feems to bd fettled, at this day, that if the defendant
tender a traverfeof the force, the juftice ought not to make any
reftitution till the traverfe be tried. Ibid.
It feems to be agreed that no other jufl ices of the peace, ex-
cept thole before whom the indi&mcnt fhall be found, fhall have
any power to make any award of reftitution. 1 Haw. 152.
And the juftice may break open the houfe by force to refeize
the fame; and fo may the fheriff do, having tne juttioe's war-
rant, Dalt. Ch. 44,
That
204 F
4try and Detainer,
Tha j , i i by force, by putting out all fuch ofFen-
ders ~ ,r' i'' . i - ,i the houfe, or upon the lands, that en-
ten-', o ' ! > i, ce. Dalt. Ch. 130.
. 1 ^ r - do in his own proper perfon, or he may
- . > r 1 io the fheriff to do it. Dalt. Ch. 44. 1 Hawk.
l .p. 160—§ 7. 4 No reftitution upon any in-
forcible entry, or holding with force, fhall be
'• d» i ay, if the party indiCted hath had the occupation, or
t; 1 i n in quiet poffeflion, by the fpace of three whole years
t -1 .r, next before the day of fuch indictment fo found, and
' 1 .cate therein be not ended or determined; which the party
''.died may alledge for flay of reflitution, and reftitution fhall
j.y till that be tried, if the other will deny or traverfe the
.ame; and if the fame allegation be tried againfl the party fo
• indiCted, then the fame party fo indiCted, fhall pay fuch cofts
4 ahd damages to the other party, as fhall be affeffed by the
4 judges or juftices, before whom the fame fhall be tried/
And it hath been holden that the plea of fuch poffeflion is
good, without fhewing under what title, or of what eftate fuch
poffeflion was; becaufe< it is not the title, but poffeflion only,
which is material, in this cafe. 1 Hawk, 152.
It was holden in Leighton's cafe, that the party may alfo tra-
verfe the entry and forces See 1 Hawk. 142.
And this traverfe muft be tendered in writing, and not by a
bare denial of the faCt in words; for thereupon a Venire Facias
muft be awarded, a jury returned, the iffue tried, a verdiCt
found, and judgment given, and cofts and damages awarded;
and there muft be a record, which muft be in writing, to do all
this, and not a verbal plea. Dalt. Ch. 133. 1 Hawk. 154—
See title 4 Traverfe *
Upon which traverfe tendered, the juftice fhall caufe a new
jury to be returned by the fheriff, to try the traverfe; which
may be done the next day, but not the fame day. Dalt* Ch.
3 33-
V. How punijhabte on a certiorari.
Although, regularly, the juftices only who were prefent at
the inquiry, and when the indictment was found, ought to
award reftitution, yet if the record of the presentment or indiCt-
ment fhall be certified by the juftice or juftices into a fuperior
court, or the fame prefentment or indictment be removed and
certified thither by certiorari, the juftices of that court may
award a! writ of refutation, to the fheriff to rcftore poffeflion ta
Forcible Entry \nd Detainer. 205
the party expelled; for the juflices of the f^ld Court, have a
iupreme authority in all cafes of the commonwealth Dalt. Chi
Alfo where, upon a removal of the proceedings into th° fu-
perior court, the conviction lhall be qua(hed, the court tyi'l or-
der reftitution to the party injured. As in the c fe of K. vepd
Jones* A conviction of forcible ehtry wasquaihed for the old
exception of mefjuage or tenement, by reafon of the uncertaiqtM' >
but the rediturbn was oppol>d, on an affidavit that the partyV
tide (which was by leafe) wai expiree fi ice the conviitiow. But
the court faid, they had no difcredonary power in this cafe, but
were bound to award relxitution on qualhing the con vision.
Str. 474.
' On a motion for a certiorari in this cafe, no no:ice to the
adverfe party is neceliury. V* /. p. 87. § 45.
VI. How punijhable as a riot.
If a forcible entry, or detainer, fhali be male by three per-
fons, or rqpre, it is alfo a riot, and may be proceeded ag' irilt as
fuch, if no inquiry hath been before made of the iorces. Daltl
a. 44.
VII. Precedents.
(A) Precept to the fherijf to sum;mn a jury*
to wit.
Whereas A J, of in the county tifrcfaidj hath this day
complained upon oath before me j p, a jujftce of the peace for the
faid county, that on the day of lap pafi A O. of
labourer* f01 ably entered into one tenement containing a res
of landy lying t3c. ('lure defcribe the land pariicuLrJyj then and
there being in the pofjejfon of tie faid A J, and the jaid A |, did
untaufu ly and forcible expel from the fam•=•, and him fo expehed at
ajortjuid, did keep out and detain from the pfeffion of the faid
lands and tenements i life are therefore on iehalf of the com-
Thonwealth to require you) to caufe to come before me twmty-fouf*
good and laufut men of tuts county, at tn the parijh of
in the aunty aforejaidy \n the day of nexty to inquire
upon their oathsj of fuch things as fall then and there be enjoinei
them, on hehulf' of the common wealthy touching the forcible entry
and detainer aforefajd. And this you fall in no vjije omit under
the penalty of eighty dollars^ and have then there taU warrant.
Given under my hand andfeal &c.
A a Juror's
206 1 Entry and Detainer,
Juror's Oat/j.
1 nquiry and prefentment make of fucb things as
, e i /ou concerning a forcible entry (or detainer) fold
ely committed in belonging to in this county
didl give, according to your evidence* So help yen
(Bj The Inquest.
„ j wit,
' nquifition for the commonwealth, indented and taken at
in the parifh of and county aforefaid, the
of in the year'of the commonwealth, before
/, &c, ajuftice of the peace for the faid county, and by the
+.th of F Gr, H J, See. good and lawful men of the fald pariHt
^nd county, who, being charged and fworn, upon their oaths
do fay, that A J, of See. was lawfully and peaceably feized in
his demefne as of fee (if not feized iri fee, then fay pojfejjed) of
and in onejnefluage, with the appuitenances, fituate in the pa-
lifh cf and county aforefaid, and his laid feizen (or pof-
feffon) fo continued, until A B, CD, &c. and other malefac-
tors to the jurors aforefaid unknown, on the day of
laft paft, with ftrong hand and armed power, inta the mefluag'e-
aforefaid, with the appurtenances, did enter, and him the kid
A J, thereof cliiTeized, and with ftrong hand expelled, and hiin
the faid A J, fo diffeizecL and expelled from the faid irteiTaage,
With the appurtenances aforefaid, from the faid day of
until the day of taking this inquifition, with like ftrong hand
and armed power, did keep out, and do yet keep out, fo the
great difturhance of the commonwealth, and xgainft the form of
the f!acute in fuch cafe made and provided. In wirnefs whereof,
the faid jurrrs to this inquifition have feverally put their feals#
the day, jear, and p'ace, firft abeve mentioned.
f C J I Far rant to the JheriJfJbr refiitution.
county to wit.
E P, cne of the jujlices £f the peace for tie faid county, to the
Jheriff thereof greeting \
Whereas, by an inquifition taken before me, aC in the
pariih'of and county afotefaid, the day of in
the year" tke commonwealth, upon the oaths of J B,
B H, &c, and by virtue of the ftatute made and provided In ca-
fts of forcible entry and detainer, it is found that A B, CD,
For cm e Entry and Detainer. 2yy
kc. on (he Jay of now lad pad, into a < ti uia
with the appurtenances, of A J, of the puidi aid
county anreffid, fituate, lying, and being in the faid p md) and
county, with force and arms did enter, and him the fa id A J,
thereof did diffeize, and with firoiig hand drive out, and him
the faid A J, thus driven out from the aforefaid meffuage, with
the appurtenances, from the day of* aforefaid, to the
day of the taking of the faid inquifition, with Rrong band, and
armed force, did keep out, and do yet keep out, as by the in-
quifition aforefaid more fully appeareth of record: Therefore,
on behalf of the commonwealth; I charge and command you,
that, taking with you the power of the county [if needful) yon
go to the faid mtfluage, and other the premifas, and the fame,
with the appurtenances, you caufe to be refeized; and that you
caufe the faid A J, to be reftored and put into his full pofleflion
thereof, according as he before the entry aforefaid was Prized,
according to the form of the faid ftjtute; and this you fliall in
no \vife ornit. Given under my hand and feal, at the county
aforefaid, the '"' day of in the year of the com-
mon wealth.
(D J Record of a forcible detainer upon view.
Be it remembered, that on the day of in the
year of the commonwealth, M B, complained to us E P, and
W T, two of the juftices of the commonwealth afhgncd to keep
the peace in the laid county, that D T, of &c. W G, of &c.
into the [here dejeribe the place, lands, &r tenement) of him the
faid JVI B, fituate within tne parifh of and county afore-
faid, did enter, and him the ft id M B, of the aforefaid,
whereof the laid M, B, at the time of the entry afnefiid was
Prized in fee, unlawfully difieized and ejedfed, and the fai l
fiom hin the faid M B, unlawfully who ftrong hand, and arm-
e<i power, do yet hold, and from him detain, agamfi the form of
the ftatute in fuch cafe made and, provided; whereupont ic fame
tvi B, then, to wit, ®n tKe faid day of prayerii of
us, f > as aforefrid bring juftices, to him in this behalf, that a
das remedy be piovided, according to the form of th<- fiatute
aforefrid. \Vhich complaint ani prayer, by therefore the
faid j nit ices, being heard, we the a+brefrid E fi, and W T,
jnftices aforefui 1, to the aforTaid, petforally have come
and do then and there find and fee the aforefdo U ri , \V G,
kc* the aforefaid with force and aims, unlawfully, witn
lirong hand and armed power, detaining aguinft the form tf tie
ftatute in fiafcn cafe made and piovided, according as he the faid
2o8 Forcible Entry and Detainer.
M B, fo as aforefaid complained: Therefore it is confidered
by us, the aforefaid juftices, that the aforefaid D F, W G, &c<
cf the de taining aforefaid, with ftrong hand by our own proper
view, then and there as afortfaid, ate convidied, and each (or
every of them) is convibled, according to the form of the ftatufe.
In wi-nefs whereof we the faid E IJ, and W T, the juilices
aforefaid, to this record our hands and feals do fel, at the county
aforefaid, on the . . day of . . in the . year of the
cotmpon vyealui, , ' •
(E) Indiament for a forcible entry and detainer,
. , . at common law, •
. The jurors &e. upon their oatb, < prefent, that J G, of kz.
T F, of&c. together with divers others, tliflorbers of the peace
of the common wealth (whofe names to the jurors aforefaid are yet
unknown) on the . ...day of . in the . vearoflhe
commonwealth, with force and arms, at aforefaid, in the
county Tore laid, unlawfully and injuriously did enter into (here
defcrihe the lands or tenements) .then and there being in the pof-
ieifion of one A J,, and that the faid J G,. and 'F F, together
wkh the Eid other difcurberscf the peace, then and there, with,
force and arms, unlawfully and injuriouily did expel, . remove,
and put out the faid A J. from the poffeJiion of the faid
and the faid A J, fo .as aforefaid expelled, removed, and put
out from the polieffion of the faid -then and there with force
Pud arms, unlawfully and injurioufiy did keep out, to the great
damage of him the faid A J, and againit the peace and dignity
of the commonwealth.
(F) On the ftatute.
county to wit.
The jurors &:c. upon their oath, prefent, that A J, late cf
the-pariOi cf . in the coimty. aforefaid, on the ■ day of
in the year of the commonwealth,. was poiTdicd;
of a certain me aunge, with the appurtenances, fityate, lying,
unci being in the pari ill and county aforefaid, for a certain term
cf years, then and f ih to come and unexpired, and being fo
pnilbiT cl :iv rc.y, one A O,- of the faid county, afterwards, to
wit, the faid . ' day of in the year aforefaid, into the
fiine rnef urge, wi.h tile appurtenances aforefaid, in the pariih
and cour.ty aforefurl, , with force and arms, and with Itrong
hand, unlawfully*did enter, and the faid A j, from the peacea.
1 ' ble ;
Forcible Entry and Detainer. 209
b'e poffeffion of the ffid mefiuage, with the appurtenances afore-
faid, then and thcr>, with force and arms, and with ltrong hand,
unlawfully did expel and put out, and the faid A J, from the
pdVefiioo thereof, ff> as aforefaid, with force and arms, and with
itrong hand, being unlawfufiy expelled and put out, the faid
A O, him the faid A J,-from the affrefud day of
in the year aforetaid, until the day of the taking this inquifition,
from the poliefilon of the faid mefiuage, with the appustenances
afcrefaid, with force and arms, and with ftrong hand, unlaw-
fully and iuiuriottfly then and there did keep out, and full doth
keep out, to the great damage of thefaid A J, agairvft the peace
and dignity of the common we ilth, ■ and againft the form of the
flatute in that cafe made and provided. ■
J N. B, If the feifon expelled has a freehold, then he mvfi, in-
dead cf being pofleiTeJ, be faid to be jeized in fee ; and of cow fe
'i'l/leal of being expolled, removed, etc. as when hs.d by leafe,
he mv.Ji be faid to be difieized.
FORFEITURE.
A MONG the many important changes made in our laws,
Xik, f1'lCe American revolution, the abolition of the odious
and inhuman law of forfeiture is not the lead to be admired.—
\v hile humanity, fhuddered at the idea of reducing to diilrtfs
and poverty, an innocent and helplefs wife and children, for the
crimes of the hufband or father, experience taught that the ex-
ample of Inch cruel and uitjuff ieventy,.- by no means, deteied
others from the cornmiffion of fimilar adts. From this convff-
tion the legislature of this commonwealth, in the year .789 felt
afcolifhecl ad the forfeitures which former'y ccuued t • tne com-
monweahh, on the conviflion or attainder of a pnfim for trea-
fon, or felony j—which law is cokctffd in the Revffcd Code
page ,113, and is inferted under tide 4 sliiainxcif of this
Work.
'■ There are however fome forfeitures in cafes not criminal,
which aci immediately 0:1 the per fon of the offender, that de~
fer»c to be no* iced here:
As 4 If a wife w'ffingiy leave her hufband and go away and
4 continue wi b her adulterer, ihe fhall be barred forever of ac-
4 tion to demand her dower, that ffie ought to have of her Luff
4 band's lands, if fhe be convidt thc.ieupon, except that her huf-
4 band willingly and whhout coercion, reconcile her, and fuffer
4 her to dwell with him; in which cafe Ihe ihall be rekorvd to
4 her action.' V, I. p. 180,' .... U>,
2 IO
FORFEITURE.
So, 4If any tenant by the curtefy, tenant in dowel*, or other-
4 wife, for term of life or years, fhall commit wafte during their
4 feveral eftates or termr, of the houfes, woods, or any other
4 thing belonging to the tenements fo held, without fpecial li-
4 cenoe in writing fo to do, they {hall be fubje& refpeftivcly to
4 an aClion of wafte, and {hall moreover lofe the thing wafted,
4 and reccmpence the party injured, in three times the amount,
* at which the waits ihall be affeCTed.' F. I. p. 287. »
With refpect to the forfeiture of Haves held in dower, fee ti-
tic 4 Slaves.'
r£RY is an offence both at common law, and by fta-
Forgery at the common law is an offence i.i falfely and fruu-
dulentiy making or altering any manner of record, or any otlnr
authentic matter of a public nature f as a parifh legiikr, or any
eked, will, privy feal, certificate of holy orders, and the li;:e —
1 Hszik 1S2. 184,
As for writings of an inferior nature as pi ivate letters, and
fuch like, the counterfeiting them is net properly forgery, Mere-
i. re in fonie c. les, it may be more fafe to profecute fuch offend-
crs as fi r a mi'ilemeanpr as cheats. For by reafon of theim-
certainty of opinions, concerning proper forgeries at common
law, indictments are more generally upon the lhatutes, and very
tow at tee common law. Sec 4 Ch,.at,*
Hut if the indictment is at the common law, and the often-
der is co WiCh d, he may be pillored, fins J, and imprifcacd,—■
// it a. J>. 3. Co, 3, I ikkref. 184.
Jby J . L chap. 233. page 260. § 1 of the Rev:f:d C;ie, 4 If
4 any perfon fhall counterfeit, aidt or abet in counterfeiting,
4 any coin made current in tnis commonwealth, or {hall make,
4 or uftlft, aid, or abet in making bafe coin,, or fhall pah sry
4 fuch counterfeit or bafe coin in payment, knowr g the fame to
4 be counterfeit, or hafe, tvery luch perfon Hi ail on legal ccn-
4 viilion, fuller death without benefit of clergy/
§ 3. If any perfon lhall f >rge or counterfeit, alter or erafe,
any certifc.ut. or \va"tent, ifiued by any perfon properly auiho-
rLrd eidur by Co igrcfs or the legijlathre of tils State, for the
jvyment of money,—01 ihall be aiding or shifting therein,—or
lhall iLr7*nd payment thereof, knowing the fume to be forguJ,
Counterfeited, altered or crafted—or fhall transfer any fuch ceiti-
FORGERY.
fkate
FORGERY. 211
ficate or warrant, knowing the fame to he forged, or counterfeited,
altered, or erafed;—or fhall forge or counterfeit ?her or era{h,
any certificate whatever, for the purpofe of obtaining a feet1.--
trent of money from any perfon properly authorilbd, either by
Congrejs or the legijlature of this State,—or fha!l be aiding or
aflitting therein,—or (hall require fettlernent thereon,—or trwif-
fer the Lme, knowing it to be forged, counterftittd, altered or
erafed, the perfon fo offending, and. legally conffLltd, ihall
fuffer death without benefit cf clergy,
§ 4.. If any perfon {hall forge or counterfeit, alter or erafe the
ftamp or receipt of any ir.fpedtor of flour or hemp,—or tender
in payment any fuch lorg^d or counterfeited, altered or erafed
receipt, knowing it to be fuqh, and fnali tlfcrcof be convicted,
he fhall fuffer death without benefit of clergy.
§ 5. He fhall be adjudged a felon, and not have the benefit
cf clergy, who fhall forge or counterfeit, alter or er iff the fiamp
or receipt of any infpe&ors of tobacco,—*-or fballcjvjj it to be fo
done,—or fhall a fill t therein,—or fhall pais or tender, or caufe
to be paffed or tendered, any fuch in payment or exchange,
knowing the fame to be forged, countei felted, altered ot eraled,
or fhall have in his poffeftion any infpe&oi's damp or rec;ip%
which hath been altered or erafed, knowing the lame; and fhall
not dlfcover fuch ftamp or receipt to twojuttices, within th a days
after they fhall have come to his pofieftion,—p>r fhall export, or
caufe to be exported, any hogfhead or cafk of tobacco, ftamped
with a forged or counterfeited ftamp,—or fhall receive or de-
mand tobacco of an infpc&or, upon any forged or counterfeited,
altered or erafed ftamp or receipt, knowing fuch ftamp or receipt
to be forged or counterfeited, altered or erafed.
§6- He fhall be ai judged a felon, and not have the benefit
of clergy, who fhall fteul, or by other means take from tfin pof-
fcffion of another, any wai rant from the rcgifter of the 1 rod office,
of this commonwealth, to uutborife a furvey of walre and unap-,
propriated lands;—er who ihail alter, erafe, or aid, or aiTiit in
the alteration or erafement of any fitch warrant;—or Lrge u*
Counterfeit, or aid abet, or aid ft, in f.u'ging or coun'erfi itirg
any written cr printed paper, pu«porting to he fuch Warrant;—-
or who fhall transfer to the ute of another, or f, r his own ufe
pre/ent or caufe to be preferred the regifier for the exchange
thereof, or to A furveyor, for the execution thereof, any fuch
warrant, or paper purporting to be fuch warrant, knowing the
fame to be flolen, or altered, or erafed, or forged or counterfeited:
And he or fhc fhall fee adjudged a felon, and not have the benefit
•f clergy, who fhall falftly make or counterfeit, or aid, abet,
jfSft in fafely keeping, or counterfeiting any inftrument, ftamp-
ing
212 FORGERY.
ing an impreffion in the figure and likcticfs of the fed, officially
tiled by the rcgiiter of the land office, ,or who fhail have in his
or her pofieffion or cuifody, fuch inflium»-nt, and fhall wilfu!ly
conceaJ the fame, knowing it to be falfely made or counteifeitcd.
The following adjudications on flatutes in piany inftances
fimihir in Ergland, may not be improper under this title.
1. Making a fecond deed and antedating it in order to make
it take place of a former ceed is forgery. 3 In//. 169.
2. If any perfon who writeth the will of afickman, inferteth
a claufe therein, concerning the devife of lands without any di-
re&ion of the devifir, this is forgery, altho' he did net forge the
whole will. 3 /«/?. 170.
3. VVirli refpect to incurring a penalty for publifhing or paf-
fing counterfeits, knowing them to be counterfeits, this know-
L pc may be derived from two means, either of his own know-
1' Jge, or the information of others; for if another tell him that
it is forged, and he publifh it afterwards as true, and it proves
to be forged indeed, he is in danger of the flat u^e. 1 Hawk. 187.
But lord Hale fays that tho' fuch a relation may be an evi-
deuce to prove his knowledge, yet it is not conclulive; for per-
haps there might be circurmlances of fadt that might make the
pel ion relating it, or his relation, not credible: So that the
knuving rnuft be upon the whole matter left to the jury, upon
the chcumftancesof the cafe. 1 H. H, 685.
By V. /. p. 333, of the Revifed Code, 4 If any perfon fhall
* faHely make, forge, or counterfeit, or caufe or procure to be
4 falfely made, forgeo, or counterfeited, or wittingly adt or afiift
4 in the fid fie making, forging or counterfeiting any deed, willy
4 tefiamem, bori 1, wr.ting-obligatory, bill of exchange, pro-
4 miffory note Br tne payment of money or tobacco, or other
4 valuable thing, or any acquittance or receipt, tither for money
4 or tobacco, or other valuable thing, or any endorfement or
4 alignment of any bond, writing obligatory, bill of exchange,
4 promiifi ry nore, for the payment of' money or tobacco, or
4 other valuable thing, with intention to defraud any perfon ot
4 pufi ns wuatfoever, or any corporation, cr (hall utter or.pub-
4 ii'n as true any falfe, forged, or counterfeited deed, will, tef-
4 tament, bond, w riting obligatory, bill of exchange, promif-
4 fijty ni/e, for tlw pa) merit of money or tobacco, or otner valua-
4 b'e thing, acquicunce or receipt for money, tobacco, or ether
4 valuable thing, with intention to defraud arty perfon or perfuns
4 whatfoever, or any corporation, knowing Uie fame to be fiiife,
4 forged or counterfeited, then every fuch perfon being thereof
4 legally conv idled, fhail be deemed guilty of felony, and fhall
4 filler death as a felon, wituout benefit of clergy.'
Indidhnent
F O R G E Pv Y. 213
IndiBment for forging and altering a bonclt with
intention to defraud two different persons.
county to wit,
Tte jurors for the commonwealth upon their oath prefent,
that late of the pariih. of in the county of
efquire, on the day of in the year of the
commonwealth, with force and arms, at the parifh aforefaid, in
the county aforefaid, felonioufly did falfely make, forge, a.i J
counterfeit, and felonioufly did caufe and procure to be fJfJy
made, -forged and counterfeited, and felonioufly did willingly
aft and afliit in the falfe making, forging, and counterfeiting,
a certain paper writing, partly printed and partly written, pur-
porting to be a bond, and to be hgned by one with the
name of him thb faid and to be fealed and delivered by1
him the faid the tenor of which laid falle, lorged, and p
counterfeited paper writing, partly primed and paitiy wrtten,
purporting to be a bond, is as follows; that is to fay, Know
all men &c.' (here fet out the bond and condition as they may Le)
with intention to defraud the faid againfl: the form of the
flatute in fuch cafe made and provided, and againfl: the peace
and dignity of the commonwealth. And the jurors aforefaid
upon their oath aforefaid, do further prefent, that the faid
afterwards, to wit, on the day of in the
year of the commonwealth aforefaid, with force and arms, at
the parifh aforefaid, in the county aforefaid, felonioufly did utter
and publifh as true a certain falfe, forged, and counterfeited
paper writing, partly printed and partly written, purporting to
be a bond, and to be iigned by the faid with the name of
him the faid and to be fealed and delivered by the faid
the tenor of which faid lad: mentioned, falfe, forged, and coun-
terfcited paper writing, partly printed and partly written, pur-
porting to be a bond, is as follow!!, that is to fay, ' Know, dec.'
(as kjofe) with intentidn to defraud the faid (he the faid
at the kmc of the uttering and publilhing of the faid [aft
mentioned, falfe, forged, and counterfeited paper writing, partly
piihted a fJ partly written, purporting to be a bonJ, then and
there wtll knowing the faid lait mentioned fallo, forged, and
counterfeited paper writing, partly printed and partly written,
purporting to be a bond; to be lalfcforged and countciKteu)
againfl the form of the llatute, in luch cafe made and provided,
and againfl: the peace and dignity of the commonwealth. And
the jurors dure iaid upon their oath aforefaid, do further prefent.
that
B h
FORGER Y.
that the faid afterwards, to wit, on the Cud day of
in the year of the common vOealth aforefaid, with force
and arms, at the parifh aforefaid, in the county aforefaid, felo-
nioufly did falfely make* forge and counterfeit, and feloni.
oufly did caufe and procure to be falfely made, forged and coun-
forfeited, and felpniouily cid willingly zSt and aflilk in the falfe
making, forging, and counterfeiting, a certain paper writing,
partly printed and partly written, purpoi ting to be a bond, and
to be figned by the laid with the name of him the faid
and to be fealed and delivered by the faid the tenor of
which faid laft mentioned falfe, forged, and counterfeited paper
wilting, partly printed and partly written, purporting to be a
bond, is a? follow!, that ij to fay,, 6 Know &c.' {as before)
with intention to defraud one ' dodor in phyfic, againlt
the form of the ftatute, in fuch cafe made and provided, and
againft the peace and dignity of the commonwealth. And the
jurors aforefaid upon their oath aforefaid, do further prtfent,
that the faid afterwards, to wit, on the faid day of
in the year of the commonwealth aforefaid, with
fyrce and arms* at the paiifh aforefaid, in the county aforefaid,
f lonioully did utter and publiflj as true, a certain falfe, forged,
and counterfeited'paper writing, partly printed and partly written,
purporting to be a bond, and to be figned by the faid
with the name of him the faid and to be fealed and deli-
\ ered by the faid which faid lafl mentioned falfe, forged, and
counterfeited paper writing, partly printed and partly written,
pui porting to be a bond, is as follows,1 that is to fay, ' Know
Ac.' (as before) with in.ent:,on to defraud the faid (he the
f. id at the time of the uttering and publishing of the laid
left mentioned falie, forged, and counterfeited paper writing,
partly printed and partly written, purporting to be a bond, then
and there well knowing the f}id lail mentioned falfe, fcrged,
and c unte-feited, paper witing, pardy printed and partly vviit-
te;, pu:reining to be U bvmd, to be fhlfe, forged, and counter-
feuedj againlt the form cf the ftatute i* fuch cafe made and pro-
vitFd, and a gam ft the peace and dignity of the commcnwealdn
For mere precedents of indictments under this title See Cro.
dr. Crrrj.. title torgtry^ and Cro. Cbi\ /Jljiaut page 422 he*
,—- ,
FORNICATIO N.
EJiY Virginia laws p. 2S7. § 6. of the RevifeJ Code j 1 Every
} ' perlon not being a fervant or Have, committing adu4tryy
or
FORNICATION 215
4 or fornication, and being thereof lawfully convi&e;] by the
4 oaths of two or more credible witnefles, or corifeffion of the
4 party, fnall for every offence of adultery, forfeit and pry 2Q
* dollars, and for every offence of fornication 10 dollars; to be
1 recovered by the fuit or profecutton of the overfeers of the poor
4 of the county or corporation, wherein fuch offence fv 11 be
4 committed, by bill, plaint or information, in any cou: t of
4 record within t|iis commonwealth, wherein no efibin, protec-
4 tion, or wager of law fhall be allowed; which faid fines arid
4 penalties (hall accrue to the overfeer*" of the poor, for the nfe
4 of the poor of the cgunty or corporation, whervin the faid of-
4 fence fhall be committed,*
Fraud. (See CHEATS)
F R U r T TREES.
BY Vivghna laws p c/ffi. <5 4, of t' e Jleufed C\ 4 All
4 ownus of hoiks, r. aiss, cattle, at d o'her Ltdh which
4 they know to have Luiked fruit tieos, inall keep th ' fame witn-
4 in their own fence ground; and if any petfon fhall t ike up a ly
4 horfe, mare, kino or other beaft, known by the owner to have
4 barked fruit trees, and fhall deliver the fame to fuch owner,
4 he or ilie fhall pay the taker up, two dolbrs for every fu^h
4 beaft fo taken up and delivered j recoverable with teffs, b tore
4 any juftice of the peace of the county wherein fuch btafl wafc
4 taken up, or the owner lives: Provided always, that the
4kerfip, fhall if required, make oath before the £ me juilice,1
4 that he took up fuch horfc, mare, or other bead, and that no
4 means were ided by himfelf or any other perfun to his know-
4l<-dg^ to fct the fame at large, otnerwife he ihill 1 rje the
4 ffii reward.'
W A R II A N T,
counlv to wit,
Compuii/it being uis dcy mode to me J P, a juf''~r rrac-
fir the county oftrtfail, by T B, that the una f B, c a on N;-
(lay of I aft, take up a km fe (gyc cow, 'is the cafe h )
ot large, at in the. faid ctynty, belonging \o C P, widen
the fnd o P, knew to have larkid fruit trees, a.yl delivered t.e
fane to the faid G P, uiho rcfufi to pay to the je:d T P, two
ddan for tie fame, accvdivg to the ad op the General dfruddy,
in that cofe made and provd'^i; I:eje 0 re therefore in t'j a,nr.
<tj the commonwealth to tequiic ycu to ai> g the jaul G P,
2i6
FRUIT TREES.
me, or feme other juflic e of the pace for the faid county, to cnfver
the pnm'jes. Given &c.
To conftable.
JUDGMEN T.
On hearing the within complaint, it being proved before me,
by the oath of that the within named T B, did take up
the hotfe (or cciv) therein mentioned, belonging to the faid
G P, and tl at rro means were ufed by the faid T B, or others
to his knowledge, as he hath declared upon oath before me to
fet the fame at large. It is therefore confidered that the faid
T B, recover"againfl- the faid G P^ two dollars, together with
his cofis irj this behalf expended. Given &c.
Colls Cents.
G A M I N G.
rr^HERE being but few of the peralti^s infii61ed, bylrv.,
on unlawful gaming, which fall under the cognizance of
a iingle mag^'lrate, and thofe feldom inforced, it will be fuffici-
ent in this place to refer to the a61 of A Ternbly as it Hands col-
leffied in the Revifed Code, and add fuch precedent®, as will
enable a magiilrate with eafe, to execute his office, in th:s in-
ibnee.
See Virginia laws, page 183—186, of the Revifed Code.
(A) fFar rant cn seel ion 5.
county to wit.
JFhereas information hath this day be> n male re fire vie A T,
gentleman, one of the crwm:mvrr/hb''s jit/lives cf tl.: per:: nT'
fain canity, by G PI, of C5Y. that C L>, haih hen gnhty rf
unlawful gaming, by playing at in an ordinary,
(race fell, or pub lied place) in the par if of in the ceuriy
e'Tonjai I: Rhcfe are therefore in the name of the commonwealth,
to will and require you to funmoi the faid C D, to appear before
me, or fvne other juftice of the peace of this county, to four caufe
vi.' the per ok) of iiverly dollars fould not be. let i d upon him jrr
lis faid offence, according to the a >51 of Affembly in this cafe made.
Given Zjc.
To J ?, confiable, or the fherifF of the faid county.
Judgment.
On hearing the within complaint, and it being proved thai the
wit l in named CI), is guilty (or conffi-Acs himlelf guilty) it k
therefore
GAMING. 217
therefore confidered that the fum of twenty dollars bejevied upon
him, fir the ufe of the poor of the parijl) of Given &c.
Warrant t>£ Diftrefs.
county to wit.
A B, one of the juflices of the peace of the faid county, to
the fberiPf thereof, or .any conftable therein.-
Whereas C D, hath been duly convifled before me (or by my
own vieW) or hath confeffed himfelf guilty) of unlawful gaming
in the parijh of and county aforefaid'. Thefe are therefore,
in the name of the commonwealth to require you to levy by diflrcjs
and file, of the goods and chattels of the faid C D, the fum of
twenty dollars, current money, fir his offence aforefaid; and that
ycit pay the fame to the overfeers of the poor of the faid panf\ for
the uje of the poor thereof Herein fail not, and make due mturn
of this warrant, and hew you have executed the fame, to or
jo me other jufticc of this county, on or before the day of
next. Given &c.
Mittimus.
county to wit.
l o the fheriff of the faid county of
I fend you herewith the body, of C D, this day duly convicted
before me (or upon my View) of having been guilty of unlawful
gaming j and 1 hereby require you to receive the faid CD, into
your jail and cujlocly, and him fajely to keep until he fall enter
into a recognizance, with two fiffcient fecuyities, himfelf in
dollars, and each fecurily in dollars, with condition fir his
being of good hehaviqur for twelve months from this day, or until
he jhall be thence difcharged by due courfi of law.
If an appeal to the county court is prayed by the defendant,
the magiflrate fhould takers bond with fecurity, in double the
fum recovered, payable to the plaintiff, and with condition as
fol'oweth.
The condition of this obligation is fuch that whereas the above->
named G H, bath obtained judgment upon warrant before me
A B, one of the commonwealth''s jujlices of the peace for the county
of againfi the above bo mid C D, fir twenty dollars forrthe
ufe of the poor of the diflriff. of in the county of from
which judgment the faid C D, hath prayed an appeal to the next
court to be held for the faid county of Noiv if the faid C D-,
fall try the faid appeal at the next court, and perform, the judg-
ment of the court thereupon, then this obligation to be void, elfe to
Xemain in full force and virtue» - i orm
gaming.
Form of a record to be made up and cert fed by the
jujiice to the county court on such appeal,
county to wit.
Be it remembered that on the day of laft pa^,
on information that C D, had been guilty of unlawful gamirg,
I iflued rpy warrant to fummon the faid C D, to anfwer for his
faid offence, in the words following, to wit, (here infert the
warrant verbatim) which warrant being returned executed by
E F, conftable, the faid C D, appeared before me this day,
and was fully heard on the fubjedt piatter of the faid information,
when it was fully proved that he was guilty of the offence in
the warrant mentioned: Therefore it is confidered that the fine
of twenty dollars be levied upon him for his faid offence, ac-
cording to the a<ft of the General Affembly aforefaid.
From which judgment the faid C D, prayed an appeal to the
rsgxt court to be heid for this county, which is al owed, hehav-
ing entered into bond, with fecurity, for trying the fume uc-
cording to law} which bond is hereunto annexed. Certified
under my hand and feal this day of &c.
(B) Warrant on scbllon p.
county to wit»
Whereas we have juft caufe to fufpcT, that H H, df &c. is
an idle perfon, having no vifible eftate, profefhon or calling, to
maintain himfelf by, but doth for the moft part fupport himfelf
by gaming, contrary to the a£t of the General Affenftfy, in
that cafe made and provided: Therefore, we command you,
that you forthwith caufe the faid H H, to come before u:>, or
feme other juftices of the peace of this county, to be examined
concerning the premifes. Herein fail not. Given unuer our
hands and feals See,
Condition of the recognizance.
The condition of this recognizance is fuch, that whereas the
above bound H H. was this day brought before J P, and K P,
two of the commonwealth's juftices of the peace of the county
of upon their warrant, for the fufpicion of his being an
idle perfon, having no vifible eftate, profeffion or calling, to
maintain himfelf by, but for the moft part fupporfing himfelf
by gaming; and the faicF HH, upon examination before the
juffices
GAMING. 219
juftices aforefaid, not making it appear to them, that a princL
pal part of his expences was not maintained by [gaming, and
thereupon he was required to give fufficient fecurities for his
good behaviour, pilrfuant t© the adl of the General Aflembly,
in that cafe made and provided; If therefore the faid H II,
fhall be of good behaviour towards the commonwealth, and all
the citizens within the fame, for and during the fpace of twelve
months next enfuing the date of thefe prefents, then this recog-
hi-zance to be void, elfe to remain in full force.
Mittimus.
To the Jherijf or keeper of the jail of county.
county to wit.
We fend you herewith the body of H H, late of &c. taken
iipon our warrant, and brought before us on fufpicion of his
being an idle perfort, of no vifible eftate, profeflion or calling,
to maintain himfelf by, but for the mod part fupportjng himfeif
by gaming j and the laid H H, on examination before us, fail-
ing to make it appear that the principal part of his expences is
not maintained by gaming; and having refufed to give fecurity
for his good behaviour for twelve months next enfuing, accord-
ing to the adt of the General AU'ernbly, in fuch cafe made and
provided: We therefore charge you to receive the faid H H,
into your jail and cuftody, and him there fafely to keep, till he
fhall enter into a recognizance, with two fufficient feCurities,
himfelf in dollars, and each fecuiky in dollars, f >c
his good behaviour as aforefaid, or until he fhall be thence dif-
charged by due courfe of law. G iven &c.
J. P.
IZ P.
fCj Warrant on section 11.
Corporation of to wit.
Whereas it appears to me J P, a imgiftr^ce for the corpora-
tion afotelaid, from my own view, that A O, of do h
keep ai d exhibit a gaming table, commonly called an A R C
tabic, (or if any ether kind, dtjerihe it) at the houfe of with-
in the corporation aforefaid, contrary to the adl of the General
Afl'embly, in fuch c<ife made and provided : Thefe aie therefore
in the name ot th? commonwealth, to require you forthwith to
fize the laid table, and pubiickly to burn or deflroy the fame;
and for fo doing this fhall be )our warrant. Given &c.
To AC, conflable.
Good Behaviour, (See SUR.ETY.)
Grand Larceny, (S« LARCENY^)
Guard, (See CRIMINALS ) Habeas
220 H A B E A. S CORPUS.
AN habeas corpus (from the initial words of the writ, while
all legal proceedings were in latin) Is a writ for brii ging
the body of nim, who is imprifoned, before the court, uith the
cau)e of the detection. 4. Com. Di<r% 328.
This is Cdlled by judge Blackjlone the moft celebrated writ ia
the Enriifh law, and is of various forts, as,
1. Habeas corpus ad refpondendum (to anfwer) when a man
harh cuffe * f adlion againft one who is confined by the proeefs
rfL.ne inferior court, in order to remove the prifoner and
c uige Jrim with thri new a&ion in the court above, 3 Black's
Com, 129.
bc'ii ii s where a man is entitled to privilege in an inferior
court v here he is fued; and if upon the return it appears that
he wac committrd without caufe, or by a court having no ju-
rifeiid/on, he fhall have his privilege. 2 H. HI 144. See 4.
Com. Dig. 338.
If a defendant he in prifon at the fuit of another, the fpecial
bah may have him brought up by habeas corpus in order to fur-
rc der, Sc lion's fraJioe. K. B,
2. Habeas corpus, ad fatisfaciendum, when a prifoner hath
had judgment againft him in an adtion, and the plaintiff is de-
firous to bring him up to fome fuperior court to charge him
w:{h execution. 3 Black's Com% 130,
3. Habeas corpus, ad prosequendum, teflificandum, dcliberan-
dum 13c. v\hich iffue when it is neceffary to remove a prifoner,
in order to bear teilimony or profecute in any court.
4. Habeas corpus, ad faciendum, et recipiendum (to do and
1 tcehe) which iffaes from a fuperior court, when aperfon is fued
in One inferior ju'rifdidtion, and is defirous to removethe a&ion
into the fuperior court. Tfiis writ diredts the body of the pri-
fener to be produced, together with the day and caufe of his
caption and detainer (whence it is frequently denominated an
ha\ms corpus cum can/a) It is grantable of common right,
witn ;ut any motion in court, and initantly fuperfedes all pro-
ceeuings in the eu'rt below. 3 Black's Com. 130.
5. 'i'he great and fhicacious writ, in all manner of illegal
tewnnement, is that of habeas coipus ad fubjicicndum\ directed
10 tltc perf u> detaining another, and Commanding him to pro-
dece the body of the prifoner, with the day and caufe of .his
caption hnd dc tuition, ad faciendum, fubjicieuaum, tt recepieu-
aum-j to do, fubmic to, and receive whatfocver the judge or
court awarding, fuch writ ftiall oonfider inthatbehJf. 3 Black's
Com. 131.
The mode of proceeding on writs of habeas corpus in this
commonwealth, is pcin.ut out by firfnia p* 242. of the
Rivijlu CcJcy which fee, ' it
HABEAS CO R.P U S. 221
It will yet be neceffary to infert fome points of information
which apply to all writs of habeas corpus, and thofe refpect she
return, and proceedings thereon, as to difcharging or remanding
the prifoner.
The officer mud fhew by his return, by whom the party was
committed, and the caufe of the commitment. 2 lnji. 55.
And the return mutt anfwer to the talcing as well as to the
detention. 2 Blacks Rep. 1204.
And if he does not make a return after the delivery of the
writ,' an attachment lies againft him. 2 Jones. 17S—Even tho*
his charges are refuled. Id.
The return to habeas corpus, ought to fhew the cawfe of com-
mitment, fpecially and certainly. 2. lnji. 55. Cra. Car. 507.
Yau. 137. Pal. 558.
See various infancss. 4. Corn. Dig. 332—'334-
At the return of an habeas corpus, the court, generally, oughj:
to difcharge, or remand the party. 2 Inf. 55. 2 H. H. 143.
. And therefore if the return fhew no caufe, or no fufficient
caufe, for the lmprifonment and detainer, he fhall be difcharged.
2 lnji. 55. 615. Yau. 156.
But if the return ttiews a fufficient caufe, he fhall be remand-
ed. 2 Inf. 55.
Yet the fuperior court may bail if they pleafe, tho' the return
be fufficient. 2 Inf. 55. Yau. 157. 1 Sed. 78.
See 4. Com. Dig. 335.
Upon an habeas corpus to remove a caufe out of an inferior
court, a procedendo fhall be awarded, if it appears that the adlion
is maintainable there only. Carth. 75.
After interlocutory judgment, it is too late to remove a caufe,
and procedendo fhall be awarded. Barnes, 221.
So after iffue joined. Id.
An habeas corpus for furrendering a man in difcharge of his
bail may be made returnable immediately. 4 Com. Dig. 330.
But generally an habeas corpus Hull be returnable at a day
certain. Id.
HIGH TREASON (fee Treafin.)
HIGH V/AYS (fee Roads.)
HIGH WAY-M EM, (fee Robbery.]
HOGSTEALING.
The jurifaidlion of a fmgle magistrate in offences of this lend
relates chiefly to proceedings againft flavesj—with refpeft to
B b others
hogstealing.
others guilty of that offence, fee V. /. c, 98 p. 186 cf the Revif.
ed Code.
The proceedings againff flaves, in this offence, arc directed
by Virginia Laws. chap. 93, p. 187, feet, 4, 5 & 6, of the Re-
vifed Code, which fee.
Warrant agatnji a SLA FE, for
HOGSTEALING.
county to wit.
¥0 the Sheriff or any Conjlahle of the /aid County.
Whereas complaint is made to me that a negro man flavd
belonging to A. B. of this county, hath lately ftolen hogs,'
the property of C D. You are therefore required to bring the
faid together with fuch witneffes as the faid C. D. fliall di-
re£t, before me, or fome other juftice of this county, to be ex-
amined concerning the premifes. Given See.
If on examination he is found guilty, then he fjouldbe iommitted
under the following
MITTIMUS.
county to wit*.
To the Sheriff or keeper of the jail of the faid county.
I fend you herewith the body of a negro man flave belong-
ing to A. B. of this county, who, upon his examination before
me, appears to be guilty of hogflealing; and I do hereby require
you to receive the laid into your jail and cuflody, and him
lafely to keep till fufficient fecurity be given for his appearance
at the next court to be held for this county, then and there tec
rnfwer an information to be exhibited againff him for his offence
afortfaid, and to abide the judgment of the laid court, or until
he be othetwite difebarged by due courfe of law. Given &c.
H O M I C I D E.
Homicide in law fignifies the killing of a man by a man.
1 ILnv. 66.
And it includes in if, not only petit treafon, concerning which
fee title Treafon; but alfo the feveral offences which are treated
cf in the following fedlions.
There
HOMICIDE. 223
There is alfo another kind of untimely death of a man, not
properly homicide: when he is killed by a horfe, a cart, a tree
or the like, and not by a man} which is called cafual death} for
which fee title Deodand
I, J uf if able Homicide.
I J, Homicide by mijadventure,
III. Homicide by felf defence.
IV. Mariflaught er.
V. Murder.
VI. Self Murder,
I. Juftifiable HOMICIDE.
To make homicide juftifiable, it muft he owing to fome un-
avoidable necefiity, to which the perfon who kills anoiher mull:
be deduced,' without any manner if fault in himfelf. 1 Haw, 69.
And there muft be no malice coloured under pretence of ne-
ceffity; for wherever a perfon who kills another, a£ts in truth
upon malice, and takes occafionfrom the appearance of neceffity
to execute his own private revenge, he is guilty of murder.—
1 Haw. 6q. '
It is faid in the old books, that one may fet forth a fa£l,
amounting to juftifiable homicide on an indidbment of murder}
and that the fame being found true, he Ihall be difmifird with-
out being arraigned, or enforced to plead not guilty. And in-
deed it feeins extremely hard (lays Mr. Hawkins) that a Iherift
cr judge who condemn or execute a criminal, &c. ftiould be
forced on a frivolous profecution to hold up their hands at the
bar for it, &c. 1 Ilaivk, (bed.) 105.
If rioters. Or forcible enrerers or detainers ftand in oppofition
to the juftices lawful warrant, and any of them is ft fin} it is 110
felony. Ha Vs pi. 37.
If a man comes to burn my houfe, and I fhoot out of my
1 oufe, or iflue cut of my home and kill him} it is no felony.—
Hale's fl, 39.
If a won.an kill him that aflaultcth to 1'aviftijher} it is no feio-
ny. Hale's pL 39.
If a perfon having actually committed a felony, will not fufF-r
hiqjfelf to be arretted, but ftand on h:p oV.m defence, or fi;, f>
that he cannot p( fiibly be apprehended alive by thoie who purfae
him, whether private perfons or public oifcers, with or without
a warrant from a magifiratej he may be lawfully fiainby them,
j Haw. 70, So
224- H O M I C I 0
So if a felony hath actually been committed, and r..ir fficer or
minKlcr of juftice, having lawful warrant fo to do, ar u' n in-
nocent per Ion, and fuch pcrfon affault the officer or mi\ r of
juttice; the officer is not bound by law to give back, bu' c car-
ry him away 5 and if in execution of his office, he cannot other-
wife avoid it, but in ttriving, kill him, it is no felony. And in
that cafe, the officer or minifter of juflice fhall forfpit nothing;
but the party fo affaulting, or offering to fly away, and is killed,
fhall forfeit his goods. 3 In ft, 56.
Aifo if a perfon arretted for felony, break away from his con-
duittors fo j ail, they may kill him, if they cannot otherwife take
him. But in this cafe likewife, there mutt have been a felony
actually committed, Hale ph 36, 37.
Alio if a criminal endeavouring to break the jail, afiault his
jailor, he may be lav/fully killed by him in the affray. 1 Haw,
H . . * '
In civil caufes; although the ttierift cannot kill a man who flies
from the execution cf a civil procett; yet if he reuft the arrefl;
the {heritt* or his officer need not give back, but may kill the
aliailar.C. Hale's pi. 37.
So if in the arrdl and ffriving together, the officer kill him, it
is no felony.. HaWs pi. 37.
In all thtfe cafes the party upon arraignment having pleaded
not guilty, the fpecial matter mutt be found; whereupon the
party fhall be difmiffed, without any forfeiture, or pardon pur-
chafed, Hale's pi, 38.
Or, on not guilty, he may give the fpecial matter ir. evidence;
or the jury may find a faff fpecially amounting to juftifiable ho-
micide. 1 Haivk. (6 ed.J 105. .
II. Homicide by misadventure,
I have purpolely avoided the word chancemcdley in this place,
becaufe authors do not feem to be agreed whether it is to beap-
phed to homicide by mi/adventure, or to manjlaughter. Ld. Coke
and Mr. Hawkins feems to underftand it of manjlaughter; Lord
Hale, and others of homicide by mi/adventure. The original
meaning of the word feems to favour the former opinion, as it
fignifles a fudden or cafual mealing or contention; whereas ho-
micide by mifadventure fuppofes no previous medling or falling
c„ut. But the fame author lbmetimes in different places, applies
it to both of them prcmifcuonfly. 2 Bum's Juft, 414.
Homicide by mifadventure is, where a man is doing a lawful
a-ft, without intent of hurt to another, and death cafually epiues^
Hale's f I, 31»
As
II O M i C I D E,
225
As where a labourer being at work with a hatchet, the head
ffes off and kills one who ftands by. 1 Haw. 73.
Or where a third perfon whips a horfe, on which a man is
riding, wheieupon he fprings out and runs over a child, and
kills him; in which cafe the rider is guilty of hdmicide by mifad-
venture, and he who gave the blow of npnflaughter. 1 Haw.
73*
But if a perfon riding in the ftreet whip his horfe to put him
into fpeed, and tun over a child and kill him, it is homicide and
not by miladventure j and if he ride fo, in a prefs of people,
with intent to do hurt, and the horfe killeth another, it is murder
in the rider. 1 H. H. 476.
If a perfon drives his cart carelefsly, and it runs over a child
in the ftreet, if he have feen the child, and yet drives on upon
him, it is murder; hut if he faw not the child, yet it is man-
daughter; hut if the child had run crofs the way, and the cart
run over the chiul before it was poffible for the carter to make a
ftop, it is by miladventure. 1 H. H. 476.
' So where workmen throw ftones, rubbifti, or other things,
from an houfe, in the ordinary courfeof their bufinefs, by which
a perfon underneath happens to be killed; if they look out and
give timely warning to thofe below, it will be homicide by mif-
adventure; if without fuch caution, it will amount to manflaugh-
ter at leaft: It was a lawful a£I, but done in an improper man-
ner. - It is faid by fome, that if this be done in the ftreets of
populous towns, it will be mar.daughter notwithftanding the
caution above mentioned: But this will admit of fome limitation.
If it be done early in the morning, when few or no people are
ftirring, and the ordinary caution is ufed, it feemeth that the
party is excufable. But when the ftreets are full, that will not
luince; for in the hurry and noife of a crouded ftiect, few people
hear the warning, or fufficiently attend to it. Foji, 262, 263.
- It is faid before, that this homicide is only when it happened!
upon a man's doing a lawful act; for if the a6t be unlawful, it
is murder. • As if a perfon, meaning to fteal a deer, in another
man's park, fbooteth at the deer, and by the glance of the arrow
killeth a boy, that is hidden in a bufli; this is murder, for that
the acft was unlawful, altho' he had no intent to hurt the boy,
nor knew of him. But if the owner of the park h id (hot at his
own deer, and without any ill intent had killed the boy by the
glance ef his arrow, this had been homicide by mifadventurc and
Do felony. 3 Inji. 56.
So if any one fhoot at any wild fowl upon a tree, and the ar-
row kill any reafonable creature afar off, without any evil intent
ia
HOMICIDE.
jo ]him, this is by mifadventure; for if it was not unlawful lo
ihoot at the wild fowl; But if he had (h<>t at a cock or a hen,
of any tame fowl of another man's, and the arrow by mifchdiire
had killed a mart; if hi? intention was to fteal the poulty (which
muft be collected from circumftapces) it will be murder by rea-
fonof that feloniqpsIntent; but if it was done wantonly, and
without that intention, it Will be barely manflaughter. Fofl.
258, 9.
The rule laid down fuppofeth, that the aft from which death
enfued, was malum in fe. For if it was barely malum prohibitum
as ihoofipg at game by a perfon not qualified by ftatute law to
keep or ule a gun for thatpurpofe; the cafe of a perfon fc offend-
iug, will fall under the fame rule as that of a qualified man.
For the flatutes prohibiting the deftru&ion of the game, under
certain penalties, witynot in a queftion of this kind enhance the
accident beyond its intrinfick moment. Fojl. 259.
1 urther, if there, be an evil intent, tho' that intent cxtendcth
not to death, it is murder. Thus, if a man knowing that many
per pie are in the itreet, throw a ftone oyer the wall, intending
only to fright tHem, or to give them a little hurt, and thereupon
one is killed^ this is murder; for he'had an ill intent, tho' that
Intent extended not to death, and tho' he knew not the party
flain, 3 Injl. 57,
And it is a general fule, in cafe of all felonies, that wherever
a man intending to commit one felony, happens to commit ano-
ther, he is as much guilty as if he had intended the felony which
he adtually commits. " x Haw. 74.
But in all the cafes above, if it doth only hurt a man, by fuch
art accident, it is nevertheless a trefpafs; and the perfon hurt fhall
recover his damages; for tho' the chance excufe from felony,
yet it excufeth not from trefpafs. 1 II. II. 472,
1 Lit homicide is not felony, becaufe it is not accompanied
v.-ith a felonious intent, which is nccefiary in every felony.—
I Haiv. 75.
1 here Can be no doubt but that a perfon apprehended for the
Commiilion of this a6I is bailable. See u Bail."
The forfeiture which enfued on homicide by mlfadventure is
noW abolifhed. S>e " Attainder."
* The uft of 22 Geo. II, ch. 31, fe£l. 23 which exempted fron
punilhment any perfon for caufmg the death of a Have during his
corren'on, is repealed by the act of 1788, ch. 23.
By r. I. ('14 R Cond. 1789, ch. 43 ) page 49. 1 In cafe
1 it be found by the country, that any man by misfortune, or in
c his own defence, or in other manner without felony, did kill
another, he fhzll be acquitted.'
HOMICIDE. U7
III Homicide by frff defence,
Homicide in a man's own defence feems to be* where oni
who hath no other poffible means of preferring his life from on®
who combats with him on a fudden quarrel, kills the perfop by
whom he is reduced to fuch an inevitable neceffity, i Maw, 75,
And not only he, who upon an aflault retreats to a wall, of
fnme fuch ftrait, beyond whiqh hp can go no farther, before hp
kills the other, is judged by the law to a<5t upon unavoidable ne-
ceffityj butalfo he, who being aflaulted in fuch a manner, and,
in fuch a plr.ee, that he cannot go back without manifofldy en-
dangering his life, kills the other without retreating at all.—
1 Haiu. 75..
And not with (landing, a perfon who retrdats from an aflault to
the wall, give the other wounds in his retreat, yet if he give him
no mortal one till he get thither, and then kill him, he is guilty
of homicide^ defendenio only. 1 Haw, 75.
But if the mortal wound was flril given, then it is man-
(laughter. Hale's PL 42.
And an officer who kills one that redds him in the execution
of his office, and even a private perlbn that kills one who felo-
nioufly aflaults him in the high way, may juftify the fadt with.-
out giving back at all. 1 Hawk. 75,
But if a perfon upon malice prepence (hike another, and then
fly to the wail, and thpre in his own defence kills the other, this
is murder. Hale's PI* 42.
Hereof there can be no acceflariec, either before or after the
a<5t, becaufe it is mot done with a felonious intent, but upon in •
evitable neceffity. 3 Injf. 36. _ t
A perfon guilty hereof is not bailable by juftices of the peace,
but they mult commit hirn till the affizesT 1 Hxwk. yta. But
it is now otherwife, See " Bail."
But otherwife: it is, if he is taken only on (light fufplcion.
2 Hawk, 105.
Lord Coke (2 In ft, 316) fays that the juftiecs of the peace
cannot take an indictment of killing a man fe defendendo; bet ante
their commlffion is not general, as is that or the inflicts ot
jail delivery, but limited* But lord Hale (2 H. H. 46.) holds
the contrary.
.The forfeiture which formerly accrued on the commiflion o{'
this aCt is now abolished. See " Attainder d'
If a man be indicted for homicide fe tiefenlendo, and is found
not guilty, yet if it be found thai hp lied for the fame, he (bail
forfeit his goods for fuch flight, in not (landing to the taw ot
the land. 1 H, H. 493;, if the forfeiture L t ot new
aboliflied. See a Attainder,"
228 homicide.
IV. MANSLAUGHTER.
By manflaughter is to be underftood fuch killing of a mart as
happened either on a fudden quarrel, or in the commiflion of an
unlawful a£t, without any deliberate intention of doing any mik
chief at all. i Hawk. 76.
There is no difference between murder and manflaughter,
but that murder is upon malice forethought) and manflaughter
upon a fudden occafion. As if two meet together, and flriving
for the wall the one kill the other, this is manflaughter and fe*
lony. And fo it is, if they had upon that fudden occafion gone
into the field and fought, and the one had killed the other, this
had been but manflaughter, and no murder $ be.caufe all that fol-
lowed was but a continuance of the firft fudden occafion, and
the blood never was cooled, till the blow was given. 3 In/It
55* > . .
He is guilty of ma7ifaughter only, who feeing a man in bed .
with his wife, or being actually {truck by him, or pulled by the
nofe, or filliped upon the forehead immediately kills him; or
who happens to kill another in a contention for the wall; or in
the defence of his perfon from an unlawful arreftj or in the de-
fence of his houfe from thofe, who claiming a title to it attempt
forcibly to enter it, and to that purpofe fhoot at it &c. or in the
defence of his poffeffion of a room i:i a public houfe, from thofe
who attempt to turn him out of it, and thereupon draw their
fwords upon him j in which cafe the killing the affailant hath in
fome cafes been holden juflinable; but it is certain that it can a-
mount to no more than manflaughter. 1 Haw. (6ed.) 125.
There can be no acceffaries before the fa£t in manflaughter.
l Haivk 76 But there may be acceflaries after the fa£h
3 V- 55-
If a flight fufpicion of guilt only fall on the offender he is bail-
able. See 4 Bail.*
But the forfeiture is now taken away, by V. I. (17 R. Cond,
1792, cfl. 74) p. 113,
'1 his offence ib within the benefit of clergy. 2 H. H. 344.
A peifon found guilty of manflaughter on a flave is not now
exempted from punilhment. See alii of 1788, eh. 23.
Upon an indidfment of murder, the parly offending may be
acquitted of murder, and yet found guilty of manflaughter, as
daily experience wifnefleth, and they may not find him generally
not guilty, if guilty of manflaughter. 1 H. H. 449.
The reader is particularly requefled to perufe the cafe of Rex
v. Oncby'y (2 Strange 766) where the diftin£tion between mur»
der and manflaughter is very accurately marked out and defined
by chief jufiice Raymond in delivering the opinion of all the
judges of fingland.
HOMICIDE. azc>
V. M U R D E R,
is when a man of found memory, and of the age of difcretion,
unlawfully killeth any perfon under the commonwealth's peace*
with malice forethbHTght, either exprefled by the party, or impli-
eii by law, fo as the party woueded or hurt die of the wound or
hurt, within a year and a day. 3 Inf}, 47.
Cy midice exprejfed ii meant a deliberate intention of doijng any
b-dily harm to another, whereunto by law a perfon is notautho-
rii'il, 1 H, H. 154*
Awl the evidences of fuch a malice muft arife from external
circumfiances difcoveripg that inward intention, as lying in wait,
menacing antecedent, tormer grudges, deliberate cotupalfings,
ant t' e like; wu>ch are various according to variety of circutn-
ftanct*. 1 H, //. 451 i
IuUtcr h>.t lied is in feveral cafes, as when one voluntarily kills
arvotlur, with. rnt any provocation; for in this cafe the law pre-
fumes it to be malicious, and that he is a public enemy of man-i
Jcind 1 H II. 455, 456.
Foifming alio implies malice, becaufe it is an a£t of delibera-«
tion. 1 H. H. 455.
Alfo when an officer is killed in the execution of'his office,
it is murder, and the law implies malice. I H. H, 457.
Alfo where a priloner dieth by durefs of the jailer, the law
implies malice, by real! n of the cruelty^ 3 In/% 52.
And in general any formed dehgn of doing mil'chief may be
called malice, and therefore not fuch killing only as proceeds
from premiditfited hatred or revenge againft the perfon killed,
but alfo in many other cafes, fuch as are accompanied vviffi thofe
circumftances that fliew the heart to be perverfely wicked, is ad-
judged to be of malice prepenfe, and coafequently murder. 2
Haw, 89. Strange 766.
For when the law makes ufe of the term malice afar c f ought *
as defcripfive of the crime of murder, it is not to be underltooil
in tint narrow retrained fenfe to which the modern fenfe of thd
word malice is apt to lead one, a principle of malevolence to parti-
enlars; tor the law by the isira malice (ma lit'a) in this in ft a nee
meaneih that the fa£t has been attended with fuch circumstances
as are the ordinary fymptoms of a wicked heart, regardlefs of fo-
cial duty, and fatally bent upon mifchief. Fo/F 256, 7.
And wherever it appears that a man killeth another, it fhill
be intended prima facie that he did it maiiciouily, unkfs he can
make out the contrary, by (hewing that he did it oil a fuddeit
provocation, or the like. 1 Haw. 82*
Alfo
d a
230 H O M r C I D E.
Alfo wherever a perfon in cool blood, by way of revenge,
beats another in fuch a manner that he afterwards dies thereof,
he is guilty rf murder, however unwilling he might have been
to have gone fo far. 1 //aw. 83.
And it feeins to be agreed, that no b.each of a man's word or'
prcmife, no trefpX either to lands or gc**ds, no ftffront by
bare words or geffures, however falfe or malicious it may be,
and aggravated with the mofc provoking circumftances, will
exCufe him from being guilty of murder, who is fo far tranl-
por ed thereby, as immediately to attack: the perfon'who offends
him, in luch a manner a £ manifeftly endangers his life, with-
out giving him time to put himfclf upon his guard, if he kills
him in purfuance of fuch an affaulf, whether the perfon flain
aid at all fight or not. 1 Haw. 82.
But if tne perfon provoked, beat the other, fo as apparently
hot to defign to kill him, or if he gives him time to be on his
guard it is manflaughter only, r Haw, (6 ed.} 125.
If a man bv harfh and unkind ufage pat another into fuch a
paflion of grief or fear, that the party either die fuddenly or con-
tra<St fome difeafe whereof be dies, though this be murder or
manflaughter in the fight cf God, yet in a humane judicature
it cannot come under the judgment of felony, becaufe no exter-
nal act of violence was offered, whereof the law can take notice.
1 H. H 429.
If two fall out upon a fudden occafion, and agree to fight in
fuch a field, and each of them go and fetch their weapon, and go
Into the field and dierein fight, and the one .killeth the other,
this is no malice prepenfe; for the fetching the weapon, and go-
ing into the field, is but a continuance of the falling out, and
the blood was never coded. But if there were deliberation, as
that they meet the next day, nay though it were the fame day,
if there were (neb :t competent diicanceof time, that in common
piefurn^tlon diey hit J time of tidier-don, then it is murder.—•
3 h<j>. 5 f. 1 //. II. 453.
rind the law fe Lr abhors duelling in cold Hood, that not only
the prmnpJ v.ho aiia-ily ki Is the ot.ier, but alio his k-conus,
are t-uiity of n order, whether thty fought or-hot. And it is
hdd^o, that the ffcouos of the paity ilain arc likevvife guiity as
act charts. 1 H'ji". 82.
If a ph^fician or furgton gives a perfon a potion, without any
intent of doing him ai y bodily harm bat with intent to cure or
present a dderfe, and contrary to the phyiician or furgeon's ex-
pediation it kit's him, this is» 110 homicide. And lord Hale Iays,
he ho.uS their opinion, t > be erroneous, fvho think that if he be
no hcs.ff-J furgeon or pnyfician, that occaiioneth this mifchance,
HOMICIDE. 231
that then it is felony. Thcfc opinions (he Lys) may caution
ignorant people not to be too bufy in this kind with tampering
with phyfic, but are no fafe rule fpr a judge or jury to go by.—
1 H, II. 429.
But if a woman be with child, and any gives her >a potion to
defiroy the child within her, and file take it, and it woiks fo
flrongly that it kills her, this is murder; for it was not given
he-r to cure her of a difeafe, but unlawfully to deftroy the child
within her; and therefore he that gives her a potion to this end
muft take the hazard, and if it kills the mother it is murder,—
1 H. H. 430.
Alfo ir a woman be quick with child,, and by a potion or other-
wife, kijleth it in her womb; or if a man beat her, whereby the
child dieth in her body, and (he is delivered of a dead child, this
is a great mifprifon, but no murder; But if the child be born
alive, and dieth of the potion, battery, or other caufe, this is
murder. 3 Inf. 50.
Lord Ha'e far tbtt 10 this cafe it cannot kgfily he known,
whether the child were kd' d or not; rf.d thffi if til' child die,
after it is boi n and baptifeJ, of the Broke given to the mother, ytt
it is Hot homicide. 1 H. II. 433. And iVlr. Dulton Ipys, who-
ther it die within her body, or fhortly after her delivery it mak-
eth no difft retrce. Dalt. 33*. But Mr. Hawkins fays, that
(in this latter eafe) it lecms clearly to be murder, notwithlKnd-
ing fome opinions to tne contrary. 1 Haiv. So.
Alfo it feems agreed, that where one couniels a woman to
kill her child when it fiiall be born, who afterwards doth liil
it in purfuance of fuch advice, he is an accefiary to the murder,
i Haiv. 80.
Lord H'lJe fay?, if a man have a beafi, as a bull, cow, ^horfe,
or dog, ulid to hurt peop e, and he hath notice thcrscf, and it
doth aov body hurt, be is chargeable with an aelion for it;
If Ce ha'-" no [ru-HcaLr notice that itniJ any fi eh imrg ttfore,
yet tf it is ferae. Hi,tara>\ as a lion, a bear, a wolf, yea an ape, or
a rrwnkey, if it get bofe and do harm U any peifni, the owner
is liable to an adijon for the damage;
If he have notice or the quality of any fuch h:s beafij aid life
aU due difironce to keep him up yet he breaks bole and Vd's a
man, thisL no felony in t'be owner but the be.fi is a dodand:
But if he did riot ule that due diligence, but through i egbgence
the beafi gjes abioad, after warning or notice of his condition,
and kills a man, he thir.ks it is man daughter in if e owrer.
But if he did purpofcly let him ioofe or wanfi-r abroad, with
tlelign to do mifchicf,, nay thou gh it wue with dell an only to
fright people and make fport, and it kills a man, it is murder in
$he owner, 1 431. They
HOMICIDE.
They that are prefcnt when any man is flain, and do not
their beft endeavour to apprehend the murderer or manflayer,
(hall be fined and imprifonedr 3? Inf. 53.
The principal in murder, and the acceifkry before the fa£1 is
oufted of clergy in all cafeS, but not the acceflary after. 2 IL
H. 344.— See u Clergy" benefit of.
The forfeitures formerly accruing on this offence are exprcff-
3y abcliihed by F. L (17 K. Cond. 1792. ch, 74.) p. 113.
VI. Self Murder.
A feh de fey or felon of himfelf, is a perfon, who being of found
mind, and of tne age of difcretion, voluntarily kiilcth himfelf.
3 In,}* 54. 1 H. H. 411.
If a man give himfelf a wound, intending to be felo de[ey and
dieth not witnin the year and day after the wound, he is nut
felo defe. 3 Inf. 54.
Mr. Hawkins {peaks with fotr.e v/armth againft an u< acecunt-
able notion (as he calls it) which hath prevailed of 1 .le, th it
every one who kills himfelf muft be non compos of courfe; becauL*
it is laid to be impoflibie, that a mm in his fenfes ihou! 1 do a
tfiing fo contrary to nature, and all fenfs and reafon. But he
argue?, that if tins dodtrine were allowable, it might be applied in
excufe of many other crimes as well as this; as fur mltance tiat
of a mother murdering her child, which is alfo againft nature
and reafon : and this conlidcration, inftead of being tne Lighctfc
aggravation of a crime, would make it no crime at all ? fur it is
certain a perfon non compos mentis can be guilty of no crime,
j Hawt 67.
And Lord Hale fays it is mt every melancholy or byrncm-
driacal diftemper, that denominates a man non contpjjy tor ihure
aie few who commit tliis offence, but are under fucli inhruoae6;
but it muft be fucb an alienation of mind, as renders a perlbn to
be a madman or frantick, or deftitute of the ufe of reafon, v/hich
will denominate him non ampus 1 II. //. 412,
The offender heiein doth incur a forfeiture of goods andchat-
ttls but not of lands; for ho man dan forfeit his land, without
an attainder by coutfe of law. 3 Inf. 54.
Nor ihail his goods be forfeited, until it be lawfully found by
the oath of 12 men, and this belongs to the coroner to inquire
of, upon view of the body. And if the body cannot be viewed,
the juftices in leflions may inquire thereof; for they have power
by their commiftion to inquire of all felonies; and a prefentment
thereof found before them, intitles the commonwealth to the
foifciture. 3 hf. 54, 55. Dak. c. 144.—S.ee c Coroner.'
HOMICIDE. 233
But neverthelefs, the forfeiture fhall relate to the time of the
wound given, and not to the time of the death, or of the inqui-
fition. 3 Injt. 55. Halt. c. 144* 1 Hale's PL 29. 1 Haw, 68.
But lord Plale in his hiftory or the pleas of the crown, feemeth
to doubt, whether it fhall not relate to the time of the death,
only, and not to the time of the wound given. 1 H. H, 414.
Nor doth the offence work any corruption of blood or lois of
dower. 1 Haw, 681
The a£t of Aflembly which aboliflies the forfeitures formerly
accruing on the attainder or conviction of a perfan, is thought
not to extend to the cafe of a felo de ft. See 3 Injl. 54.
For precedents, fee titles Warrants, Commitment, Recogn't-
zan.e, and Criminals.
(A) Indiuhnent for murder by beating with fijls
and kicking on the ground, where no vtfible
mortal wound can be discovered*
county to ,wit.
He jurors &c. upon their oath preftnt, that late of the
parijh of in the county of labourer, not having the
fear of God before his eyes, but being moved andftduced by the in-
fixation of the devil, on the day of in the year
of the commonwealth, with force and arms, at the par ifj afore-
faid. in the county aforefaidy in and upon one in the peace
of God and the commonwealthy then and there being, felonioufyy
wilfully, and of bis malice aforethought, did make an afault j and
tint the [aid then and there felonioufyy wilfully, and of his
jnaLc: aforethought didftriie, beuty and kick the faid with
bs lan, a ami feet, in and upon the heady breaft, back, belly,
jldtSy and oil at puns of the body of him the faid and did
tleie and then felon'onfy, wilfully, and of his malice aforethought
c./? and trrow the jaid down unto and upon the grcundy
via) great force and violence there, giving unto the faid
then and there, as well ly the beating, finking, and kicking of
him the faid in manner and form aforefuid, as by the cafting
and throwing of him the faid down as aft ejaid, jtv^ral
mortalftrohs, wounds, and bruifts in and upon the head, breafty
back, letlj, fides, and other pyrts of the body of him the faid
of which J aid mortalJh okes, wounds, and knifes, he the faid
from the Jaid day of in the year aforefaidy until the
day of in the fame ye at, as well at the parijh afore-
faid in the CGunty of or ejaid, as alfo at the parijh of in the
paid county of aid languif), andlanguif:\ng did live; on which
faid
234 II O. M I C.I D E. .
faid ' day cf in the year of the 'commonwealth afcn.
fare/, the faid in ike par ijh aforefaid, in afar .fid, k
the count'? afore/aid, of the fevtral mortal Jir'okes, wounds, end
'hi:i(es aforefaid, died: And fo the jurors aforefaid, upon their
• 'oath aforefaid, do fay, that the faid kirn the faid in
■wanner ana form aforefaid, febnioufiy, '-wilfully, and of hit malice
aforethought, did kill and murder, cgtiinjl the peace and dignity of
the commonwea.th. . ..
(BJ Indidhnent for murder by cafling a Hone.
county to wit. •
. 7he jurors iff c. upon their ealh prefeni, thai C B, late of the
part fry of in the county of labourer, not having the
fear of God before his eyes, but being moved and jeffaced by the in-
Jligation of the devil, on the day of in the year
of the commonwealth oCc. with force and arms, at the parifhefre-
fa id.> in the county aforefaid, in and upon cue M, the wife f
M H, in the peace of God, and this cfmmomveclih, then and there
beings fchnioufy, wilfully, and of his malice aforethought, did
r/take an a fault', and that the faid C B, a certain ft one of no va-
lue, which he the faid G B, in his right hand then and there hail
and held, in and.upon the right fide- of the head, near the tight
temple of her the faid M, then and there felonioufty, wilfully, end
of his malice aforethought, did cajl and throw; and thai the jaul
C B, with the Jione aforefaid, jo as aforefdd cajl and ihrsmn,
the aforefaid M, in and upon the right fide of the head, near the
right temple of her the faid M, then and thtre felonioujly, wilful-
iy, and of his malice aforethought didfirike, penetrate anfwsurj,
giving to the faid M, by the cuffing and throwing of the ft one
aforefaid\ in and upon the right fide of the head, near the right
temple, of her the faid M, ens mortal wound, of the length oj we
inch, and of the depth of one inch, of which faid mortal wound fie
the faid M, from the faid day of . in the year afore-
fatd, until the - day of the fame month of in the Jmt
year, at the parijb aforefaid, in the county aforefaid, did larrguijh,
and languifhing did live-, on which faid day of " in the year
aforefaid, the faid M, at the parifo aforefaid, in the county afore-
fa id, of the mortal wound aforefaid died', and fo the jurors afore-
faid, upon their oath aforefaid ho fay.—'that the faid C B, her
the faid M H, inmanrfer and form a for."fed, fekniovfy, wilfully
, and of his malice aforethought, did kill and murder:, againfi tb:
peace and dignity of ihe commonwealth>
HOMICIDE.
(CJ Indictment for murder and petit-tfeafon, by
lhooting, viz. aguinil: the perfon who (liot,
and the widow of the deceaied, for aid-
ing and alTiiHng.
county to wit,
' The jurors &c. upon their oath prefent, that M H, late of
the parilh of L C, in the county of yeoman, arid
late of the fame, widow, (late the wife of late of the fame
place labourer) not having the fear of God before their eyes,
but being moved and deduced by the inftigation of the devil, on
the day of in the year of the commonwealth,
&c. with force and arms, at the pariih aforefaid, in the county
aforefaid, felonioufly, wilfully, and of their malice aforethought,
and (he the fyid a]fo traiteroefly did make an aflualt upon
the (aid the hnfoand of her the faid in the peace of
God and this commonwealth, then and there being, and that
the Came a certain gun; of the value ofiive (hillings, then
and there charged and loaded v. ith gpn pOwder, and divers lea-
den (hot, which gun he the faid in both his funic! 3 then
and there had and held, to, agqinft, and upon the faid then
and there/elomonfly, wilfully, apd of his malice aforethought,
did (hoot and difcharge, and that the faid with the leaden
(hot aforefaid, out ot the gun aforefaid, then and there by force
of the gup powder, (hot, difcharged, and lent forth as aforefaid,
the aforefaid ip and upon the left fide of the head of him
the faid near the left ear of him the faid then and
tljere, with the leaden fhet aforefaid, out of the gun aforefaid,
by the faid fo as afore Cud (hot, difcharged, and fent forth,
felonioufly, wilfully, and of his malice aforethought, did ftrikg
penet. ate, and wound, giving to the faid . with the leaden
(hot alorefaid, fo as aforefoid (hot, difcharged, and font forth,
out of the gun aforefaid, by the (aid in and upon the left
fide of the head of him the faid near the left ear of him
the faid one mortal wnpnd, of the depth of four iucheo,
and of the breadth of two iticaes, of which laid mortal wound
the faid then and there ii.(handy ched; and tfm? the foifl
the wife of him the faid then and there folofooufly,
traiteroufty, wilfully, and of Iter malice afore thou ghi, was pre-
feat, afoiijg, helping, abetting, comforting, a (lilting, asd main-
tabling the laid the felony and murder aforeluid, in man-
ntr and form aforefaid, to do and commit'- and fo the jurors
aforefaid, upon their oath aforefaid, rfo fay, that the faid
felciifoufly, * vciifolly, and of Uis mfoice ufor.thought, and the
faid
236 HOMICIDE.
faid felonioufly, traiteroufly, wilfully, and of her malice
aforethought, him the faid then and there, in mannei and
form aforefaid, did kill and murder, againft peace and dig-
nity of the commonwealth.
(DJ Indictment ngainji a man fir crfining and
jiarming his wife to
county to wit*
The jurors for the commonwealth, upon their oath prefent,
that laie of the parifii of in the county of
not ha vug the feai of God before his eyes, but being moved
and fed uced by the in ligation of the devil, and of his malice
.aforethought, contriving and intending his wife, feloni-
ouflv, wi'fully, arid of his malice aforethought, toftarve, kill,
and muidrr, 0.1 the day of in the year of the
commonwealth, with fierce and arms, at the pariln aforefaid, in
the county aforefaid, in and upon the fiid in the peace ef
God and of the commonwealth, then and there being, felori-
oufly, wilfully, and of his malice aforethought, did make an
aflault, her the faid in a certain clo-et, in a certain lodg-
ing room, part and parcel of a certain meffuage or dwelling-
houfe,, there fituate, felonioufly,- Wilfully, and of his malice
aforethought, on the faid day of in the year afore-
faid, arid continually from thence until the day of the fame
month, did confine and imprifon, and continually from the faid
day of in the year aforefaid, until the faid day
of the lame mpnth, felonioufly, wilfully, and of his malice
aforethought, did neglect and refufe to give and adminifter, or
permit to be given and adminiftered, to her the faid be-
ing fo confined aad impriforred as aforefaid, fufficient meat,
drink, vidtpals, and other necefl'aries proper and requifite for the
futtenance* fupport, and maintenance of her body; by means of
which faid confinement and imprifonmertt, and alio for wantoi
fuch fufficient meat, drink, victuals, and other neceflaries as
were projier and requifite for the fuftenance, fupport, and main-
tenancd of the body of her the faid {he the faid from
the faid day of in the year aforefaid, until the faid
day of the fame month, in the (aid clofet, at the parifli
aforefaid, in the county aforefaid, did linger and pine, and be-
came greatly emaciated, and confirmed in her body, and during
aU tijat time did languifh, and languifhing did live; on which
faid day of i 11 the . year aforefaid, file the faid
at the parifli aforefaid, in the county aforetfid, of fuch
confinement
HOMICIDE.
- i '.lament and imp-ifonment, and far want of fl'ch fufhcient
mi at, drink, victuals, and other necelTaries as were proper and
p q i Ute for the fuffenance., fupport, and maintenance of kej-
body, did miferably perifh and die; and fo the jurors aforefaid,
upon their oath aforefaid, do fay, that the laid hes; the
faid in manner and form aforefaid, felonioufly, wilfully,
and of his malice aforethought, did kill and murder, aguinft the
peace and dignity of the commonwealth.
(E) IndiBment againfi a widow for drowning
her own child in a pond.
county to wit.
The jurors &c. upon their oath prefent, that late of
the parifh of in the county of widow, not having
the fear of God before her eyes, but being moved and feduced
by the inftigation of the devil, on the day of in1 the
year of tb»e commonwealth, with force and arms, at the
parifh aforefaid, in the county aforefaid, In and upon one
the daughter of her the faid (ftife the faid then and
there being an infant of tender years, to wit, abotit the age of
two years, and in the peace of God and the Commonwealth)
felonioufly, wilfully, and of her malice aforethought* did make
ariaflauh; and that the faid then arid there feldniotrfly,
wilfi'lFy, and of her malice aforethought, did take the faid
into both hands of her the faid and did theft and there fe-
Innioufly, wilfully, and of her malice aforethought caft, throw,
and pufh the laid into a certain pond, there fltuate, wherein
there then was a great quantity of water; by means of which
faid cafting, throwirig, and pufhing of the faid into the
pond aforefaid, by the laid in form aforefaid, fhe the faid
fn the porui aforefaid, with the water aforefaid, was
then and there choaked, fuffbeated, and drowned, of winch laid
choaking, fuifbeanng, and drowTung, fhe the faid theft
and there inflaiuly died; and fo the jurors aforefaid, upon their
Oaih aforefaid, d-6 fay* that the faid her the laid in
manner and form aforefaid, felonioufly, wilfully, and of her
malice aforethought, did kill and murder, againft the peace and
dignity of the commonwealth.
(F j IndiBmsnt for felony ana murder, by
Jiabing with a knife.
The jurors 2zc. upon their oath ptefent, that A S, late cf
£ e the
238 HOMICIDE.
the parifh of in the county of labourer, not having
the fear of God before his eyes, but being moved and feduced
by the infligation of the devil, on the day of in the
year of the commonwealth, with force and arms, at the
parifh aforefaid, in the county aforefaid, in and upon one J M,
in the peace of God, and of the commonwealth, then and there
being, felonioufly, wilfully, and of his malice aforethought, did
make an aflault, and that the faid A S, with a certain knife, of
the value of fix pence, which he the faid A S, in his right hand
then and there had and held, the faid J M, in and upon the left
fide of the belly, between the fhort ribs, of him the faid J M,
then and there felonioufly, wilfully, and of his malice afore-
thought, did ftrike and thruft, giving to the faid J M, then and
there with the knife aforelaid, in and upon the aforefaid left fide
of the belly, between the fhort ribs, of him the faid J M, one
mortal wound, of the breadth of three inches, and of the depth of
fix inches, of which faid mortal wound the faid J M, from the
faid day of in the year aforefaid, until the
day of the fame month of in the year aforefaid, at the pa-
rifh aforefaid, in the county aforefaid, did languifh, and lan-
guifhing did live5 on which faid day of in the year
aforefaid, the faid J M, at the parifli aforefaid, rn the county
aforefaid, of the faid mortal wound died j and fo the jurors
aforefaid, upon their oath aforefaid, do fay, that the faid A S,
the faid J M, in manner and form aforefaid, felonioufly, wil-
fully, and of his malice aforethought did kill and murder,.againft
the j£eace and dignity of the commonwealth.
HORS E-S TEARING.
BY V. /. (17 R. Cond, 1792. ch. roi) page 188. c If any
perfon do felonioufly take, or fteal aay horfe, mare or geld-
ing, foal or filly, the perfon fo offending, fiiall not be admitted
to have or enjoy the benefit of clergy, but fiiall be utterly excluded
thereof, and fhall fuller death as in cafe of felony.'
For the punifhment and proceedings againft receivers of ftolen
hoi fec, fee title acceffary.
By fedlions 4 and 5 of the above law, the reward for appre-
heiniing horfe-ftealers is prefcribed, which fee.
Certificate
II O R S E-S t E A L I N G. 239
Certificate by two Juflices in order to entitle the
reprefentativesof a perfon killed in apprehending
a horfe-flealer, to the fun* of 17Q dollars.
county, to wit:
JPe J. P. and K. P. i wo of the commonwealth's juflices of the
peace for the county of aforefaid, do hereby certify to the
auditor of public accoifnts, that it hath been fully proved to us that
A. D. late cf&c. was hilled within this county, on the day of
lafl, by endeavouring to apprehend G. H. a horfe-flealer.
Given under our hands andfeals, this day of in the year
J. P.
K. P,
Indictment for Horse-Stealing.
coanty, to wit:
The jurors for the commonwealth, lAc. upon their oath prefeni.
That /I. O. late of the parijh of in the county of aforefaid,
labourer, on the day of in the year and in the year
_ of the commonwealth, iviih force and arms, at the parijh aforefaidx
\n the county aforefaid, one gelding of a bay colour, of the price of
dollars, of the goods, and chattels of one A f. then
and there found, felonioufy didfleaf take, and * lead away, againjl.
the peace and dignity of the commonwealthK
* For dealing a horfe &c. (inftead of carry away) fay lead,
away: for oxen, cows, fheep, &e. drive away.
IIOUS E-B R E A K I N G.
I
See Burglary and Larceny.
HOUSE-BURNING.
See Burning.
HUE AND CRY.
THIS method of purfuing felons being authorifed by the com-
mon law, and recognifed by fame ftatutes, it might be
improper to omit it,, tho' it isfcldom ufed in this commonwealth.
Lord*
140 HUE AND CRY.
F.ord Coke faith that hue and cry (called in anciotit records
loatef am et clamor do rneart the fjime thing; for that huer in
French is to hoot or fhottt, in Engtijh to cry. 2 Jnjl. 173.—
3 A/?. 116. * .
But fmce it apptareth by old books (of which alfo lord Coke
maketh mention. 2 Inft. 173) that hue and cry was anciently
both by horn and by voice, it may feem that thefc two words
are not fynonimous, but that this huieftum or hooting is by the
horn, aqd crying bv the voice; with which alfo accoi'deth the
French word huchet, which fignifieth a huntfman's horn: So
that hue and cry in this fenfe will properly fignify a purfuit by
horn and by vpice. Which kind of purfuit of robbers by blow-
irtg a horn* and by making an outcry, is Hid to be praciifed alfo
fn Scotland. ' ,
And this blowing of a horn by way of notice or intelligence,
in other cafe as well as in the purfuit of felons, feemeth n, have
been in ufe of very ancienttime, for araongft the laws of 11'ih
ii ed kipg c£Kent, in fhcyCarCqb, this is one; that 4 if a ftrati-
*■ ger go out of the road, and neither fhout nor blow a horn, he
4 lhall be taken for a'thief."
Hue and cry is the old common law proccfs after felons, and
fuch as have dangeroufiy wounded any perlon: And this hath
Deceived great countenance and authority by feveral ftatutes.—»
51 H H. 98.
When any felony is committed, or any perfon i$ grievoufly and
dangeroufiy wounded, or any perfon adapted and offered to be
robbed, either in the day or n:ght; the party grieved, or any
other, may refort to the conftable of the vijl; and, 1. Give him
fuch realbnable affurance thereof, as the nature of the cafe will
bear. 2. If he knows the name of him that did it he mud: tell
the conftable the fame. 3 If he knows it not, but Can defcribe
htm, he muft defcribe his peifon, or his habit, or b,is horfe or
fuch circumftances as he knows, which may conduce to his 'dif-
covery. 4. If tpe thing bq done in the night, fo that he knows
none of thefe circumftances, he muft mention the number of tne
prrlbns, or die wqy th^y took. 5. If none of ail thefe can be
ciifcovered, as where a robbery, or burglary, or felony is com-
fr iued in the night, yet they are to acquaint the conftable with
the fa£I, and defire him to l'earch in his town for fufpedted per-
fans, and to make hue and cry after fuch as may be properly <uf-
pedxd, as being perfons vagrant in the fame night; for many
circuinftiinces may e> poj'i facia be ufeful for difcovering a male-
Ufcor, which cannot be at firft found. 2 IF IF 100. iqi»
3 J«/f, 1J§, ■ '
fpr levying hue and cry, altho' it is a good courfeto have the
warrant
HUE AND CRY.
warrant (A) of a juftice of the peace, when time will permit,
in order to prevent caufelefs hue and cry; yet by the frame of
the ftatutes, it is by no means neceflary, nor is it always con-
venient ;„for the felon may efcape before the warrant be obtained,
and hue and cry was part of the law, before juftices of the peace
were firft inftituted. 1 Hj H. 99.
And the duty of the conftable is, to raife the power of the
town, as well in the night as in the day, for the profecution of
the offender. 3 u6. , »
And upon hue and cry levied againft any perfon, or where
any hue and cry comes to a conftable," whether the perfon be
certain or uncertain, the conftable may fearch fufpe£ted places
within his vili, for the apprehending of the felons. 2 ID H.
I03* * • •
ilut tho' he may fearch fufpecfed places or houfcs, yet his en-
try muft be by the doors being open; for he cannot break open
doors barely to fearch, unleft the perfon againft whom the hue
and cry is levied be there, and then it is true he may; therefore
in cafe of fuch a fearch, the breaking open the door is at his pr-
ril, namely, juftiftable if he be there; not justifiable, if he he
not there: but it muft be always remembered, that in cafe of
breaking open a door, there muft be firft notice given to them
within of his bufinefs, and a demand of entrance, and refufal,
before the doors can be broken. 2 H. H. 103. 2 Haw. fio.
If the perfon againft whom the hue and cry is raifed be not
found in the conftabiewick, then the conftable fhall give notice
to the next conftable, and to the next, until the offender be
found, ( r. until they come to the fea fide. And this was the law
before the conqueft. 3 In ft 116.
And the officer of the town where the felony was done, as
alfo every oiTicer to wiiom the hue and cry feall afterwards come,
ought to fend to every other town round about him, and not to
one town oniy. And in fuch cafes it is needful to give notice
in writing (to the purfuers) of the things ftolen, and of the colour
and marks thereof, as alfo to delcribe the perfon of the felon, His
apparel, horft, .and the like, and which way he is gone, if it
may be. Dak. c. 54.
Hut if the hue and cry be upon a robbery, burglary, man-
flaughter, or other felony committed, but the perfon that did the
ftcl is neither known nor defcri'oable by perfon, clothes or the
like, yet fuch a hue and cry is good, as hath been ftud. and muft
be purfued, tho" no perfon certain be named or defended. 2
ID ID 103.
And therefore in this cafe, all that can be done is, fcr thofe
that purfue the hue and cry, to take fuch peifonsas they have
probable
242
HUE AND C R Y.
probable caufe to fufpe&; as for inftance, fuch perfons as are
vagrants, or fuch fufpicious perfons as come late into their inn or
lodgings, and give no reafonable account where they have been,
and the like. id.
For thoje cafes in which hue and cry is particularly dire died by
the laws of this commonwealth. Seethe 18 th fiction of the aft
recited under title CORONER.
If the perf-.n purfued by hue and pry be in a houfe, and the
doors are (hut, and refufe to be opened on demand of the con-
liable, and notification of his bufinefs, he may break open the
doors ; and this he may do in any cafe where he may arreft,
though it be only a fufpicion of felony, for it is for the common-
wealth, and therefore a virtual non cmittas is in the cafe: and the
fame law is, upon a dangerous wound given, and a hue and cry
levied upon the offender. 2 H. H. 102.
And it fcerns in this cafe, that if he cannot be otherwife taken,
he may be killed; and the neceftity excufeth the conftable*. 2.
H. H. 102.
If hue and crv be raifed. againft a perfon certain for felony, tho'
poffblyhe is innocent; yet the conftables, and thofe that follow
the hue and cry, may arreft and imprifon him in the common
jail, or carry him to a juftice of the peace, to be examined where
he was 'at the time of the felony committed, and the like. 2 H.
H. 102.
If the hue and cry be not againft the perfon certain, but by
defcription of his ftature, perfon, clothes, horfe, and the like;
yet the hue and cry doth julrify the conftable or oth?r petfon
following it, in apprehending the perfon fo defcribed, whether
innocent or guilty; for that is his warrant; it is a kind of procefs
that the law allows of, not ufual in other cafes, namely, to arreft
a perfon by defcription. 2 FL H. 103.
In cafe of hue and cry once raifed and levied, onfuppofal of a,
felony committed, though in truth there was no felony commit-
ted, yet thofe that purfue hue and cry, may arreft and proceed,
as if fo be a felony had been really committed.
And therefore the juftiftcation of an imprifonment by a perfon
upon fufpicion, and by a perfon (efpecially a conftable) upon hue
and cry levied, do extremely differ, for in the former c^fe, there
rwuft be a felony averred, to be done, and it is iffuable; but in
the latter, to wit, upon hue and cry it need not be averred, but
the hue and cry levied upon information of a felony is fufficient,
though perchance the information were falfe.
And the reafons hereof are thefe: 1. Becaufe the conftable
cannot examine the truth or falfe hoed of the fuggeftion of hirri
that firft levied it, for he cannot adminifter to hiai an oath; and
if
HUE AND CRf. 243
if he fhould forbear his purfuit of the hue and cry till it be fx-
amined by a juftice of the peace, the felon might efcape, arid tife
purfuit might be loft and fruitlefs* 2. Becaufe the conftable is
compellable to purfuehue and cry, and he is punifhable, and fo
are thofe of the vill, if they do it not. 3. Becaufe he that firft
raifed a hue and cry, where no felony is committed, that is, he
who giveth the falle information, is feverely punhhable by fine
and imprifonment, if the information be falfe.
And therefore if he raife hue and cry upon a perfon that is in»
nocent, yet they that purfue the hue and cry may jalbfy the im-
prifonment of that innocent perfon; and the raifer is puniihablc:
and by the fame reafon if he give notice of a felony committed,
where there was in truth none.
And here the juftification of the imprifonrnent is mixed, partly
upon the hue and cry, and partly upon their own fufpicion; and
therefore, 1. In refpedb that it is upon hue and cry there need?
no averment, that the felony was done, if the arreft be by that
conftable that firft received the information, and fo tailed the hue
and cry; or if the arreft were made by that conftable, 01* thofe
vills to whom the hue and cry came at the ilcond hand, it muil
be averred, that fuch a hue and cry came to them, purporting
fuch a felony to be done. 2. But alfo inafmuch as the hue and
cry neither names nor defcribes the perfon of the felon, but only
the felony committed, and therefore the arreft of this or that par-
ticular perfon is lefs to the fufpicion and difcretion of the confta-
ble, or if the people of the fecond or third vill, he that arrefts
any perfon upon fuch general hue and cry, muft aver, that he
fufpedted and fhew a reafonable Caufe of fufpicion.
The moft ufual, and indeed the fafeft method of proceeding,
or railing hue and cry, is to go before a magiftrate and to give
him information of the felony upon oath —who fhould thereupon
take the examination in writing, before he iflues his warrant.
E X A M 'X N A T I O N.
county to wit:
The examination cf of the /aid county of taken upon oath
before me j. P. a juf.ice of the peace for the [aid, county, this
day of in the year The (aid Jfdth, thai &c. [hereyc
forth the fubfance of the information )
Sworn to before me
(a;
HUE AND CRY.
(A) Warrant to levy kite and cry on a Robbery
having been committed.
To all conftables and other officers, as well In the faid county
of as elfewhere, to whom the execution hereof di th belong.
Whereas J. I. of in the county of yeoman, hath this day
made information upon oath, before me J. P. one of the ju ft ices of
the peace in and for the faid county of that on this prejn,t
day cf in the year of the commonwealth, bctzvixt the hours
of three and four in the afternoon of the fame day, at a place called
in the faid county of in the highzvay there, two malefuc-
tors and felons to him the faid A. I. unknown, in and upon him the
faid J. I. then and there being in the peace of God and of the com-
monwealth, felonioufy did make an afault, and him the faid A. I.
then & there felonioufy did put in great fear and danger of his life;
andthefumof of lawful money of the commonwealth, of the goods
and chattels of him the faid A. /. from the perfon and againft the
will of him the faid A. I. then and there violently and. felonioufy
didfeal, take and carry away, and that one of the faid malefactors
and felons, to him the faid A. 1. unknown, is a tall frong man,
and feernetb to be about the age of years, is pitted in the face
with thefmali pox, and hath the fear of a wound under his left eye,
and had then on a dark brown riding coat, &c. and did ride upon
a bay gelding with a far on his forehead', and the other, &c,
and that after the faid felony and robbery committed, they the faid
malefadlors and felons to him the faid A. I. unknown, did fly, and
withdraw themfelves to places unknown, and are not yet apprehended:
Thefe therefore are to command you forthwith to raije the power of the
county within your feveral precintls, and to make diligent fearch
therein, for the perfons above defcribed, and to make trefh.purjuit
and hue and cry after them, from town to town, andfrom county to
county, as well by horfemen as by footmen\ and to give due notice
hereof in writing, defer ibing in fuch notice the perfons and the of-
) \nee aforefaid, unto evtry next confable on every fide, until they
fall come to the fen fore ; or until the faid malefactors arid felons
fall be apprehended-, and all perfons whom you or any cf you fall,
as' well upon fuch fearch and purfiit, as ctherwife, apprehend or
caufe to be apprehended, as jufily fufpedled lor having committed the
faid robbery and felony, that you do carry forthwith to one of the
juft ices cf the peace in and fir the county where he or they fall bt
apprehended, to be by fuch jujiice examined, and dealt withal cu-
cording to law. And hereof fail you not r effectively, upon the ve~
ril that fall enjue theteon.— Given under my hand and feal, at
,in the faid county of the day of ajoi faid, in the year afore-,
jaid. As
hue and cry.
24|
As this procefs by hue and cry to apprehend an offender, is
fcarcely ever ufed in this commonwealth, in the mode prefcribed
by the common law, it will be fufficierit to refer to titles Felo-
ny, and Criminals, where the neceifary precedents may be
found. It may, however, be proper to obferve that fhould an
offender be brought before a magiftrate, who was taken by hue
and try, he muft proceed in all things* aS directed under title
Criminals, obferving to vary the ftyle of his precedents, as in the
following
mittimus.
Tojhe Jheriff or keeper, &c.
county to wit.
1 fend you herewith the body of AO, late of takjn by hue*
and cry, upon warrant of J P. a juftice of the peace of the county
of , and brought before me by A C; conjlable of the faid
A O, being charged^ &c. (deferibe the offence as in the warrant,
and conclude afc in other mittimus.)
HUNTING.
BY V. I. (17 Cond. 1792, ch. 88) page 160. If any per-
fon &c. (here infert fe&ions 1 & 2 of the above law.)
And by V. L (17 R. Cond. 1792, ch. 113) page 219.—1
Whofoever fhall hereafter ufe any fire-hunting, &c. (here infert
factions 1 h 2 of the above law;
(A) Warrant for hunting on the lands of another i
without licencei
county to wit.
Whereas information is mctde to be by A j, that A O, did cri
the day of laf, hunt and range upon the lands of A M,
in this county^ wilhout the conjent or licence of ibe J a id A M,
contrary to the a£i of the General JJJembly in that cafe made and
provided4 You are therefore hereby required\ in the name of the
commons ea!th% to fiemrnon the faid AO, to appear before me of
fome other jujiice of the peace for this county, to anfwer the premie
fes. Herein Jail not.-—Given &c.
To A C, conftable.
JUDGMENT.
On hearings it being duly proved that the within named A O,
is guilty of the offence within mentioned, by whiih he hath ium*
"i4
F f
246 H U N f I N G.
red the penalty of three dollars'. It is therefore confdered that the
faid A J. recover againf him the Jaidpenally to his own ufe> to-
gether with his cojls, in this behalf expended,
Cells, Cents.
Where the owner of the land profecutes, the warrant may be
the fame as before to lands of the laid A M, in this county,
without his licenfe &c.
The judgment as before to, penaltyto be paid to the overd
feers of the poor of the diftridt of for the ufe of the poor
qf the faid diftridt.
On the firft judgment, an execution may iflue in favour of
the informer as in other cafes.
11 But in the other cafe a warrant for diftrefs and fale feems the
tnoft proper.
To the jberijf of county, or any mnfable therein,
county to wit.
Whereas A O, hath been duly convicted before me, by the
oath of A M, of having unlawfully hunted and ranged upon the
lands cf the faid A M, in the parilh of in this county,
and was adjudged to pay the fum of three dollars and the cofts,
for the faid offence, amounting to cents: You are there-
fore hereby required to levy the faid fum of three dollars, and
cents, by diftrefs and fale of the goods and chattels of the faidA
O, proceeding therein as the law diredfs; and that you pay the
fuid f um of three dollars, when levied to the overfeers of the poor
of the diftridl of for the ufe of the poor of the faid diftrid;
and that you make return of this warrant, with an account of what
you Ihali have done therein, to me, or fome other juftice of the
peace for this county, on or before the day of next.
Given See,
The foregoing piecedents may be eafiiy altered to fuit the
offence of fire-hunting.
HufWid,-(See i Wife.')
Ideots, (See Lunatics, )
Imprisonment, (See Arrest, Commitment.)
Inceft, (See ALrtiage.J
INDICTMEN T.
J, Indictment, what.
If, IF bat offences-are indifable,
III. IF it bin what time an indictment Jhould be
brought. iF,
INDICTMENT,
IF, How far several offenders or several off
fences may be joined in one mdiCtment,
V, Whether the grand jury may examine wit-
neffs againjl the commonwealth.
FL Hew many witneffes are requifie to an
indictment.
VII, Whether a grand jury may fnd an in-
indictment specially.
Fill. Form of an indictment,
I. Indidment, what.
INDICTMENT cometh of the French word emitter y andf
fignifies in law, an accufation found by an inqueft of twclvd
or moie upon their'oath, and as the appeal is ever the fait of the
party, fo {he jndihhr.ent is always the fuitof the common wealth,
and as it were his declaration \ and the patty who profeeutes it,
is a good witnefs to prove it. And when fuch accufation is
found by a grand jury, without any bill brought before them,
and afterwards reduced to a formed indidtment it is called a pre-
fentment-y and when it is found, by jurors returned to enquire of
that particular offence only which is indidted, it is properly called
an inquijition, I In ft. 126. 2 Haw. 209, J
II. What offences are, indictable.
There can be no doubt, but that all capital crimes ivhatfo-
ever, jfnd alio all kinds, of inferior crimes of a public nature, as.
mifprifions, contempts, disturbances of the peace, opprefHons,
and all other mifdemeanors whatfoever of a pub ic evil example
againft the common lavc\ may be indidtc$; but; no injuries of a
private nature, unlcft they fomeway concern.the commonwealth.
2 Haw. 2 to.
Alfo it feerns to be a good general ground that wherever a
fcatute prohibits a matter of a publick grievance to the liberties
and fecurity of a citizen, or commands'a matter of publick con-
\enience, as the tt pairing of the common flreets of a to van; an
offender againft fuch flatute is punifhable, not only at the fuit
of the pa»ty grieved, but alfo by way of indictment for his con-
tempt of the flatute, unlefs fuch method of proceeding do mani-
leftiy appear to be excluded by it. Yet if the party offending
hath been fined to the commonwealth in the adtion brought by
the party (as it is laid that he may in every adtion for doing a
INDICTMENT.
thing prohibited by ftatute;) it feems queftionable, whether he
may afterwards be indidted, becaufe that would make him liable
to a fecond fine for the fame offence. 2 Haw. 210'
But if a ftatute extend only to private perfons, or if it extend
to all perfons in general, but chiefly concern difputes of a private
nature, as thofe relating to diftreffes made by lords on their te-
nantsj it is faid that 'offences againft fuch ftatute will'hardly
bear an, indictment. 2 Haw. 211.
. Alio where a ftatute makes a new offence, and appoints a
particular method of proceeding, without mentioning an indidt-
ment,. it feemeth to be fettled at this day, that it will not main-
tain an indictment. 2 Haw. 211. Str. 679. -
But lord Hale diftinguifbes upon this, and fays, that if a fla-
tute prohibit any ait to be v done, and by a fubftantive claufc
gives a recovery by a&ion of debt, bill," plaint, or information,
but mentions not an indictment; the party may be indibted upon
the prohibitory claufe,' and thereupon fined, but not to reccvcr
the penalty; but theft it feems the fine ought not to exceed the
penalty; but if the a£t be not prohibitory, Sit only that if any
perfon fhall do'fuch a thing, he (hall forfeit fo much, to be re-
covered by a6tion pf debt, bill, plaint, or information; then he
cannot be indidfed for it,' but-the proceeding muft be by action,
bill, plaint, or information, "2 H. H.-j^i, ' '
■ Alfo where a ftatute adds a further penalty, to'an offence'
prohibited by the common law, ' There can be no doubt but
that the offender may be ftijl indi&ed, if the profecutor thinks,
fit, at the common law; " and if the indidlment fort fuch offence'
conclude againfl the form of the Jlaiuit\, and cannot be made
good as an iiidi£tment upon the ftatute, it feems to^be new fet-
tied, that it may be maintained as an indictment at common
law. 2 Haw. 2ii, • ■
A fa£t amounting to a felony is not indictable as a trcfpniX
X. Raym. 712.
III. Within nvhat time an tndiRl merit fhoidd
, be brought.. ,
By V. /. (17 R. ConR 1792. w- 74. § 34.) page 113. All
actions, fuits, bills.?, indidtments, or informations, which fndl
be had, -&c. upon any aft of Affembly, not aftecling life or
limb, in all be brought within one ye:ir> next fhe offence
fommittedo TV
INDICTMENT.
IV* How far several offenders may he joined
' - in one indictment*
1. If there be one offender, and feveral offences committed by
him, as .burglary and larceny, they may be contained in one in-
•diclment. 2 H. H. 173. •
But in the cafe, of K. and Clendon, T. 4 G. 2. There was
an indi&ment fetting forth that the defendant made an affault
upon Sarah Beatniff, and Elizabeth Cooper; and did them beat,
wound, and evil intreat. ' After verdict it was moved in arreft
of judgment, that tnefe were two diftindt offences, and there-
fore could not be laid in the fame indi&ment; and of that opi-
nion was the court, and the judgment was arrefted Stra. 87c.
2. ,If there be feveral offenders that commit the fame offence,
though in law they are feveral. offences, in relation to the feve
jal offenders, yet they may be joined in one indidlment; as if
feveral commit a robbery, or burglary, or murder. 2 H. H.
173.
, .3. And fo it is, though the offences are of feveral degrees,
but dependant one upon, another, as the principal in the firft de-
gree, and the principal in the fecond degree, to wit, prefenr,
aiding and abetting the principal, and acceffary before or after.
2 H. H. 173. • ■
4. "Alfo feveral perfons may be indi&ed in the fame indi&-
inent for feveral offences of the fame nature, as for keeping dif-
orderly jioufes j but the indictment ought to fet forth that they
t'everally did fo. 2 H. H. 173.
And this is only to be underftood where the offences may be
joint, as in extortion, maintenance, receiving ftolen goods, and
the like; and not where the offence is, a feparate act in e^ch,
as in the cafe of K, .againft Philips and others, IvL 5. G. 2.
oix were innidled in one indidhnent tor perjury, and four of
them pleading, were convidted, it was moved in at reft of judg-
merit, that the crime of perjury, ; is in its nature feveral, and
two cannot be indidled together. And by the court, there may
be great inconveniences if this is allowed; one may be tiefirous
to have certiorari, and the other not; the jury 011 the trial of
all, may apply evidence t® all that is but evidence againft one:
And they cited a cafe, T. 6 /jn. Q. againft Ilodgfon and ethers,
where two were indicted for being fcolds, and compared to bar-
ralry, and it was held not to lie. And in the principal cafe
judgment was arrefted. Str. 921.
In like manner, „E« H. G. K. againft TVeflon and ethers.
There was an indidment againft fix jointly and fcveraliy for
excrcifing
25°
INDICTMENT,
exercising a trade; and q.uafhed, becaufe there ought to be dif-
tindl indictments. Str. 623.
5. Larcenies committed of feveral things, though at feveral
timeSy and from feveral perfonsy may be joined in one indict-
dent. 2 H. H. 173. k '
V, Whether the grand jury may examine wit-
nejjis againji the commonwealth.
Lord Hale fays that the grand "jury at the aflizes or fefliom
ought only to hear the evidence for the commonwealth, and in
cafe there be probable evidence, they ought to find the bill, be-
caufe it is but an accufation, and the party is to be put on his
trial after wards. 2 H. H. 157.
Which doctrine is alfo laid down by chief" juflice Pembertofiy
in the cafe of the earl of Shaftfburyy St. tr. V. 3. p. 415.
But the learned editor cf Hales hi/lory, obferves upon this
that fir "John Hawlesy in his remarks on the faid cafe St. tr.
V. 4. p. 183. unanfwerably fhews, that a grand jury ought to
have the fame perfuafion of the truth of liie indtdlmeiitasapiUy
jury, or a coroner's inqueft; for they are fworn to prefent the
truth, and nothing but the truth.
And lord Cokeiays, that feeing indidbments are the foundation
of all, and are commonly found in the abfence of the party ac.
culed, it is necefiary there fliould be fubftantial proof. 3 Init 25.
VI. How many witnejfes are requifite to
an indiSlment.
An indi&ment may be found upon the oath cf Qne witnefs
only, unlefs it be for high treafon, which requires two. witnefles.
2 Maw. 256. And unlefs in any inftance it be otherwife fpe-
cially dhcCIed by act of AfTembly. See ' Treason.'. '
VII. Whether the grand jury ?nay find an
indiSlment specially.
It feems to be generally agreed, that the grand jury may not
find part of an indictment to be true, and part falfe; but mud
either find a true bill or ignoramus for the w hole; and that if
they take upon them to find it specially, or conditionally, or to
be true for part only, and not for the reft, the whole is void,
and the party cannot be tried upon it but ought to be indicted
anew. 2,Haw. 210.
VIII,
INDICTMENT.
VIII. Form of an indiSlment.
In order to underftand this matter rightly, it ir» judged re-
quifite, fit ft, to infert the intire form of an indictment, and then
to take it in pieces, and explain the feveral pans of it in their
order.
The inflame which is chofen is on tile flatute of ftabbing.
1 F. c. 8.
The caption of the indi&ment is no part of the indiTmenf
itfelf, but is the ftyle or preamble, or return that is made from
an inferior court to a fuperior, from whence a certiorari ifi'ues
to remove; or when the whole record is made up in form; 2
H. H. 166.
Note. The following indictment is founded on a flatute
Which is not in force in this country: It will, however, equally
elucidate the doCtrine of indictments, and is given merely for
example.—It is humbly fubmitted whether the words included
t'hus [ } may not now be omitted, on the authority of the laws
adduced in fupport of that opinion,—But I give it merely as an
opinion, and would by no means wifh the profeifion ty deparc
from precedents long fettled and grown venerable by antiquity,
without fome further and better warrant for fuch departure.
The caption of an indiChnent in the diftriCt courts, runs thus,
county to wit.
The jurors for the diftriCt compofed of the counties of
upon their oath do prefent, That John Armjlrong late of Appleby
in the county aforefaid, yeoman, [not having God before his
eyes, but being moved and feduced by the iniligafion of the
devil] on the tnirtieth day of March in the year of our Lord
and in the year of the commonwealth, at, the hour of nine
in the afternoon of the fame day, [with force 'and arms] at Ap-
flely aforefaid in the county afordaid, and within the jurifdiciioa
of the did rich court aforefaid, in and upon one George Jrlnrrijon%
[in the peace of God and of the faid commonwealth] then and
there being (the afor&Lid George Harri[on not having any wea-
pon then drawn, nor trie aforefaid George Harrifon having fir ft
irricloui the Lid John Attnflrong) felonioufiy did make an aiTauk
and that trie afore Lid John Armjlrong ith a certain drawn fvvorct
[cf the value of five (hillings] which he the Lid Jchn Armjlrong
in his right hand then and there had and held the faid George
Jlarrifon in and upon the right-fide of the belly near the ihort
libs of him the faid George Hmrij'on (the aforefaid George Har-
rifon as is aforefaid; then and there not having any weapon drawn
nor the aforefaid George Harrifon then and there havingfirfilrrick-
en the Lid John Armjlrong) then and there felonioufiy did flab
252 INDICTMENT.
and fchrufl, giving unte the faid George Harrifon then and there
with J he fword aforefaid in form aforefaid, in and upoh the right
fide cf the belly near the (hort ribs of him the faid George Har-
if on:, one mortal wound of the breadth of one inch, and cfthC
debth of nine inches; -of which faid mortal wound, he the faid Geo,
Harrifon then and there inftantly died, and fo the jurors afore-
faid upon their oath aforefaid do fay, that the faid John Armfrong
him the faid George Harrfon on the aforefaid thirtieth day of
March in the year aforefaid, at Appleby aforefaid, in the county
aforefaid, in manner and form aforefaid, felonioufly did kill;
againft the peace and dignity of the commonwealth and againft
the form of the ftatute in fuch cafe made and provided.
The following are the fubftantial parts of the body
of an Indictment,
That late of [in the county aforefaid yeoman.] The
name of the party indi&ed regularly ought to be infer ted, and
inferted truly in every indictment. 2 Id. H. 175.
But the inhabitants^ a parifh, may be indi&ed for not re-
pairing the hi^h way, although no perfon is particularly named.
Wood^ b. 4. c* 5.
It is faid that no perfon indicated can take any advantage of a
rniftaken furname in the indidtment, notwithftanding fuch fur-
name has no manner of affinity with its true one, and he was
never known by it. 2 Haw. 230, 1, 2. 3. 2 H. H, 176.
But the miftake of the chriftian name is pleadable, and the
party (ball be difmifled from that indictment. 2 H. H. 176.
But the fafeft way is to allow his plea of mfnomer, both as to
his furname and as to his chriftian name, for he that pleads mtf-
nomer of either, muft in the fame plea fet forth what his true
name is, and then he concludes himfelf, and if the grand jury
be not uncharged, the indiClment may prefently be amended by
ili.e grand jury, and returned according to the name he gives
him fell", 2 H. li. 176.
Alio an indictment naming the defendant by two chiidian
uain^s is not good. L. Raym. 562.
If the county is in the margin, and the indictment fets forth
the faCk to be done at fuch a place in the county aforefaid> it is
good, for it refers to the county in the margin; but if there be
two counties named, one in the margin, and another in the
addition of any party, or in the recital of an atfb of parliament,
the fa£l laid at fuch a place in the county aforefaid, vitiates the
indictment, becaufe two counties are named before, and there-
fore it is uncertain to which it refers. Crown. Cir. 116. 115.
' But
INDICTMENT.
But altho* the defendant be indited by a wrong name or a J-
dition, or with no addition, yet if he appear, and plead not
guilty, without taking advantage of that deredt, he fJiall never
hiledge the mijnomer;, or want of addition to flop his trial or
judgment} for by fuch his appearance, and pleading to Jilue^
the indictment is affirmed and the mijnomer or want of addition
falved. 2 H. H. 176,
And if feveral perfons be indi&ed for one offence, mifnomer
or want of addition of one, quaftieti the indictment only againib
him, arid the reft fhall be put to anfwer; for they are in law as
feveral indictments, 2 H. H. 177.
See title 1 Additionr
Net having God before his eyes, but being moved andfeduced by
the injligation of the devil] 1 do not find it afferted by any au>;
thorny, that thefe words are necjffary in an indictment. On
the thirtieth day of March in the year of] No indictment can
be good, without precifely fhewing a certain day of the material
facts alledged in it. 2 Flaw. 235.
And if the offence be done in the night, before midnight, the
indictment fhall fupbofe it to be done in the day before; and if
it happen after midnightj then it mult fay it was done that day
after. Lamb. 4.92.,
And altho' the day be inferted, yet if the year is not inferted,
the indictment is infufficient. 2 H. Fh 177.
But where an indictment charges a man with a b:\re omifii-
on, as the not fcouring fuch a ditch, it is faid, that it needs not
{hew any time. 2 Flaw. 236.
And if it fay, cn fuch a day laft paft, without fhewing in
what year, that is good enough; for the certainty nny be found
out by the {tile of the feffion. Lamb. 491*
But tno9 she day of the rear be miitalcen in the indicia ent,
yet if the offence were committed in the fame county, tho' at
anoiher time, die offender ought to be found guilty: but then
it may be requCite, if any dcheat or forfeiture of land be con-
ceff'ed in the cal'e, for the petit jury, to find the true time of the
offence committed; and therefore it is heft in the indidtment to
fee down the time as truly as can be, tho9 it Be n it of abfelute
neceffity tq the defcncjunis conviiiion. 2 H. FL 779.
Add this they raffic r, becaule the jury are to iiud the indidt-
inent upon their oaths. Dolt. c. 1B4.
Upon which ground, namely, becaufe the jury are fworn to
prei'ent the truth, it is be ft to lay all the facts in tue indictment
as near to the truth as may be; '
At
O ,g
INDICTMENT.
/t the hour of nine in the afternoon of the fame daf\ It is not
neceffary to mention the houry in an indi&ment—except for bur-
glary. 2 Haw. 235.
With force and atms\ Thefe words are not now necdfary.
See V* /• p* 112.
But yet where fuch words are proper and pertinent, it is fafe
and advileable to irfert them, if it be to no other purpofe than to
aggravate the offence. 2 Haw. 242.
, At Appleby afoirefaid, in the county aforefaid] No indiflment
can be good without exprefsly IheWing fome place wherein the
offente was committed, which mult appear to have been within
the jurifdi&ion of the court. 2 Haw. 236.
But a mi Hake in the place will not be material upon the evi-
dence, on not guilty pleaded, if the fadf be proved at fome other
place ?n the fame county. 2 Haw. 237.
Arid it is not fufKcient that the county be expreffed in the
margin, but the vill where the offence was committed, mud'
be alledged to be in the county named in the margin, or, in the
county aforefaidy which feems t£> be fufficient where but one
county is named before, but to be uncertain where a county is
named in the body of the indi&ment, different from that in the
margin. 2 Haw. 220; 2ff H. 180.—But the vill parilh &c.
need not itow be named. See V1 /. p> 112.
In and upon one George Harrifcnj Wherever the perfon in-
jurcd be known to the jurors, his" name ought to be put in the
indidtmfcnt. 2 HaXv. 232.
But if they know not his name, an indi&ment for the mur-
der cf a peifon unknown, or for Healing the goods of a perfon
unknown, is good. 2 H. H. 181.
Alfo there is no need of an addition of the perfon upon whom
the clFnee is committed, unlefs there be a plurality of perfons
cf the fame name; neither is it effential to the inchear, tho'
fome times !i may be convenient for dniinction faJce to add it.
2 B. H. 182.
hiUp^fG.dy and of the ccmmouivealih then and there
I ting J It is ulual to allege this, but not ncceilhry, and pciiibiy
not ti uc, for ho might be breaking the peace at the time. 2
H. H. :85.
i he aftefjid George Harrifon not having any uieapon. then
u a 11-, 1, nor the aj or if id George Harrifon having frjl fi'iLn
ibe fa id John AirntirongJ An indictment grounded upon an
chence, made bv Itaiate, mull l>y exnrels words bring the of-
fence v. iihin the fubflantiai defciiption made in the ftatute; and
thofc circum (dunces mentioned in the ftatute to make up the of-
fence, fhall not be fuppiied by the general conclufton cgainft the
form of the Jlatuie. 2 H. H. 170. And
INDICTMENT. 255
And fo it is, if an a& cf parliament ouft clergy in certain ca~
fes, as murder of malice forethought^ robbery in or mar the high*
tvay, though the offences themfclves were at Common law, yet
becaufe at common law within clergy, they (hall not be oulied
cf clergy, though convicted, unlefs the cirdumltances, as of
malice forethought, or near the highway, be expreft'ed in the in-
didiment. 2 IL H. 170,
But there is no neceflity in ^n indictment on a pybtic ftatute,
to recite fuch ftatute; for the iudges are bound ex officio to take
notice of all public ftatutes, 2' Haw. 245.
Yet if the profecutor take upon him to recite if, and irnferi-
ally vary from a fubftantial part of the- purview of the ftatute,
and conclude againft the form of foe flatuti aforefaid, he vitiated
the indidfment. 2 Haw. 246.
' So, the mifrecual of the title of sr ft at ate is fatal. 2 Hawk.
247; \ _
1 Fehv'ivfy did make an cffiaulf\ There are feveral v/ords of
art which the law hath appropriated for the difer'iption of the of-
fence,1 which no circumlocution will fupply; as fe'onirutjy, in
the indiflment of any felony; birglarioujJ^ in an ind.cfment of"
burglary; and the like 2 H. Ift 184.
And if a man be indicted that he f </>•, and it is i«*.t faid felo-
nioufly,''this indidfment imports but a treflpafs. 2 H, H. 172.
With a certain "drawn Jivord] Yet if the party were killed
with another weapon,' it maintains the indictment; but if it
were with another kind of death, as poifoniog, or ftrangkng. it
doth not maintain the indi&ment upon evidence. 2 H. H. 185.
Of the value cffva fillings'] It' was formerly neceifary to jet
forth the value of the inilrument, becaufe it war. f mflit^d as a
deodar,d, 2 H. II. 185.—But it is now g'own obloiete. See
f Deodand.1* j r
Which he the faid John Armftrrmg in his right hand then an/f
there had and held] It muft /hew ir. what {.and he held his /word.
zH. H. 185/ •
in and ut on the right fide of tr. e belly, near f V fort ribs of the
fa;d George Kar. ifxij Fne^e muft be a certainty of the oftei.ce
committed, and nothing material /hall be taken by intendment
or implication; but the fpecial manner of tire whole ft4 ought
t} be let forth with certainty 2 Haw,'225, 227,
And therefore in the cafe of murder, it ought to fhsw in
what part of the body the perlcn Was wounded: and' therefore
if it be on his arm, or hand or ftje, without 'faying whether
right or left, it is not good 2 H. H. *85. .
' If theft be alledged in any thing, the indiclment mult fet
forth the value of the thing ftolen; that it may appear, whether
it be grand or uetit larceny. 2 H» H. 183. In
256
INDICTMENT.
In like manner, an indictment that the defendant took anc^
carried away fuch a perfoifs goods ancf-chatteis, without (hewing
What in certain, as one horfe,*one cow, is not good. 2 H. H,
132.
An indictment that the defendant is a Common highwayman,
a common defamer, a common difturber of the peace, and the
like, is not good; becaufe it is too general, and contains not
the particular matter wherein the offence was committed. 2
H. H. 1S2.
' In like manner an indictment for divers fcandalous, threat-
ninga, and contemptuous words, fpolcen of a juitice of the peace,
is not good, but ought to fet forth the words in fpccial. Str.
699-
' An indi&ment for difobeying an order of juftices, muft rind
pofitlvrly, that fuch an order was made, and not by way of jre<-
cital, that ovbereas -L. Raym. 1363.
1hen and there fcloniouJJy did (tab and tlrvfl] In an indLI-
ment it is beft, and often necehary, to repeat the time md ph.ee,
to the feveral parts of the ft.et. 2 H. II r78.
Thus in an irulhChrient of murder or manfi vu^hrer, as wtll
the day and place of the flmke, or other adt done as of the death,
muft be expfefll'di the former, becaufe the rU beat or forfeiture
of lands relates thereto; the latter beewfe it mull appeir that
the death was within the year and day after the flroae. 2 H II.
*79* '
One mortal Wound of the breadth of one Inch, ami of the depth
of nine inches J 'Regularly the length and depth of the wound is
to be (hewed; but this is not necelfary in rill cafes ns namely,
Where a limb is cut off; (b it may be alio a dry blow. 2 H. Id.
186.
But though the manner and place of the hurl, and its more
be requiiite as to the formality of the indiCtmrot,'and it is fir t>
be done as near the truth as may be, yet if upon evidence it
appear to be another kind of wound, in another place; if the
pat ty died of if, it is fuulcient to maintain the indictment. 2
M. IT 186. ■
Again/} the peace &c.~] The conclufion of ah indictments in
this commonwealth \$—Again/} the peace and dignity of the com-
monwiahh. (iS article of the conftituttnn.
And a%ain/} lie form of the ftatute in fuch cafe made and pro-
vided\ Regular^ , if a Ratute only make an offence, or alter an
offence from one crime to another, as making a bare mifdemea-
nor to become a felony, the indictment for fuch new made of-
fence at common law, muft conclude againft the form of the
ftatute, or cthuwiie it is infufficient. 2 H. H. 192.
X N- P X C T M E 'N T..
But if a man be incii&ed for an offence, which was at com*
inon law, and concludes againft the form of the ftatqte, hut in
truth it is not brought by the indictment within the ftatute, it
fhall be quafned and the party fhall not be put to anfwer it as
an offence at common law. 2,H. H, 171.
And if ah offence were felony at common law, but a fpecial
a£t of AfTembly ouft theoffender of fome benefit that the com-
mon lav/ allowed him, when certain circumftances. are in the
fad; though the body of fuch irididtment muff: exprefsthofe cir-
cumftances,'according as they are prefcribed in the ftatute, yet
the indictment need not conclude againft the form of the ftatute:
Thus on'the ftatute of, the 8, EL c. 4. in cafe of pick-pockets,
the body of the indictment muft bring them within the exprefs
puryieW of the ftatute, or otherwife they fhall have the benefit
of clergy; but it need not conclude againft the form of the fta-
tute, neither is it ufual in fuch cafes, ' for it, was felony before^
and the'ftatute doth riot give a new punifhment, nor make > it
tri be a crime of another nature, but only takes away clergy.
But yet, if it fhould conclude in fuch cafe againft the forrri of
the ftatute, it would not vitiate-the indidment, but would be
only furplulagel 2 H. H. 190.
if an ad of Affembly making an offence, be but temporary,
and made perpetual by another ftatute, the indictment * condud-
ing againft the form of the Jiatute is good. 2 H, H. 173.
ff the former ftatute be difcontinued, and revived by another
ftatute, the heft way is to'conclude'againft; the form of the jla-
tutes; though there is a good opinion, that it is good enough
to conclude againft the form' of the fifft ftatute. 2 H. H. 173.
If one ftatute be relative to anotherj as where the former
makes the offence, the latter adds a penalty; the indidment
ought to conclude againft the form of the ftatutes. 2 H.JI.
?73-
Condition of'a recognizance to f refer a bill -
of indilimerit.
The condition of this4 recognizance is fucf thai if the above '
bound A J, fall ferjoncdly appear at the next court to be holden at
for &c. and then and there prefer a 'bill of indiSimeni
cgainji A O, late of yeoman^ for the felonious taking-and
carrying away of t * the property of . and fall ■ then and
there give'evidence concerning the fame, to the jurors who fall
inquire-thereof on the part of the commonwealth: And in cafe
258 indictment.
A O, and give evidence upon the fame indidlment, and not depart
without leave of the court, then this recognizance to he void.
Condition of a recognizance to answer to an
indictment.
The condition of this recognizance is fuch, that if the above
hound A O, Jhall perfohally appear at the next court to be holder^
at for £5 c. then and there to an fiver to an indiSlment to be
prefer-ed ngainf him by A J, of - yeoman, for cjja idling and
beating him the J aid A J, and not depart without leave of the
court, then this recognizance to be void. : -
I N F A N T G.
^ pY an infant, or minor, is meant any one who is under
' D the age of 21 ''ears. 1 Inf. 2,
2. Jt is faid generally, that thofe who arc under a natural dif-
ability of diflinguifhing between good and evil, as infants under
the age of 14. yeai-s, which is called the age of difcretion, are
not punifhable by any criminal profecution whatfoever. But
this rnufi he underftood with fome allowance; for if it anperr
by the circumftances, that an infant under the age of difcretion,
could diftinguilB between good and evd, as if one of the age of
nine or ten years kill another and hide the body, or make ex-
cufes, or hide himfelf, he may be convidted and condemned,
and forfeit as much as if he were of lull age, but in fuch cafe,
the judges will in prudence refpite- the execution, in order to
get a pardon; and it is faid, that if an infant apparently wanting
difcretion, be indicted and found guilty of felony, the juftices
therofelves may difmif? him without a parclon. And in general it
mult be left to the difcretion of the jut ge, upon the eireurr dance
of the cafe, how far an infant, under that agr, is- capax ddf or
hath knowledge to difcern betwixt good and evil. Hale's- PL
43. 1 Haw, 2. 1 H. H. 18.
A remarkable inlfarxe of this kind we have in the cafe of
William Tor A at Bury fummer affixes, 174.8, JVi'uiam Tor A
a boy of ten years of age, was convicted before lord chief
juftice IVilUs, for the murder of a girl of about five years
of age; and received fentence of death. But the chief,
juftice, out of regard to the tender years of the prilbner, refpixd
execution, 'till he Ihouid have an opportunity of taking the opi-
nion of the reft of the judges, whether it was proper to execute
him or not, upon the fpccial circumftance of the cafe, which he
reported
INFANTS.
reported to the judges as follows. The boy and girl were pa-
rifh children, hut under the care of a parifhioner, at whofe houfe
they were lodged and maintained. On the day the murder hap-
pened, the man of the houfe and his wife went out to their work:
early in the morning, and left! the Children in bed together.'
When they returned from work the girl was miffing; and the
boy being afked what was become of her, anfvvered, that he
had helped her up; and put on her cloaths, and that fhe was gone
he knew not whither. Upon this, flrict fearch was made irt
the ditches, and pools of water near the houfe, from an appre-
henfton that the child might have fallen into the water. Dur-
ing this fearch, the man under whofe care the children were,
obferved that a heap of dung near the houfe had been newly
turned up. And upon removing the upper part of the heap he
found the body of the child, about a foot's depth under the fur-
face, cut and mangled in a mofi: barbarous and horrid manner.
Upon this difcovery, the boy, who was the only perfon capable
of committing the fact, that was left at home with the child,
was charged with the tabt, which he tliffiy denied. When the
coroner's jury met, the boy was again charged, but perfhted
ftill to deny the fa£L At length being clofely interrogated, he
fell to crying, and faid he would tell the whole truth. He then
laid, that the child had been ufed to foul herfelf, in bed; that
ihe did fo that morning (which was not true, for the bed was
fearched and found to be clean) that thereupon he took her out
of the bed and carried her to the dung heap; and with a large
knife, which he found about the hoffi'e, cut her in the manner
the body appeared to be mangled, and buried her in the dung
heap; placing the dung and llraw that was bloody under the
body, and covering it up with what was clean; and having fa
done, he got water and walked himf.lf as clean as he could.
The boy was the next morning catried before-*, a neighbouring
juftice, before whom he repeated his confeffion* vi.h all the
circumllances he had related to the coroner and his jury. The
juftice very prudently deferred proc. tding to a commitment,
tid the boy fhould have an opportunity of recollecting himfelf.
.Accordingly he warned him of the clanger he was in, if he
ihould be thought guilty of the he flood charged with, and
admonifhed him not to wrong himlelf; and then ordered him
into a room wimre none of the crow 1 that attended iliould have
accefs to him. When the boy had been feme hours in this
room, where vibluals and drink were provided for him, he was
brought a fecund time before the juftice, and then repeated his
former confeffion: Upon which he was committed to jail. On
tile trial evidence was given of the ccciurauous before uienti-
one 4
■ 260, ' I' N F A N T S.;
oned to have been made before the coroner and his jury, and be-
:fore the juftice; and of many declarations to the fame purpofe
> which .the boy.,.made to other people after he came to jail, and
even down to the day of his trial. For he conftantly told tlte
.j fame ftory in fubftance, commonly adding that the devil put
• him upon committing the fa&. Upon this evidence, with fome
other circumftances tending to corroborate the confeftion, he
was convidbed. Upon this report of the chief juilice, the judges
having taken time to confider of it, unanimoufiy agreed, i,
That the declarations {fated in the-repert were evidence proper
to be left to the jury. • 2. That fuppofing the boy to be guilty
of'this'fadf, there are fo many circumftances ftated in the report
■which are undoubtedly tokens off what lord chief juftice Hale
fome, where calleth mifchievous dlfcretion, ^ that he is certainly a
proper objefft for capital punifhment, and ought to fuffer, for
it would be of very dangerous confequence to have it thought
that children may commit fuch atrocious crimes with impunity,'
There are .many crimes of the mqft Heinous nature, fuch as
. in the" prefent cafe, ■ the' murder of young children, poifoffrg
. parents or mafters, burning houfes, and the dike, which chil-
dren are very capable of committing, and which they'may in
fome circumftances be under ftrong temptations to commit; and
therefore, tho' the taking away the life of a boy of ten years old,
may favour of cruelty* yet as the example of this boy's punifii-
: merit may be a means of deterring other , children from the like
offences, and as the fparing this boy merely on account of his
age, -will probably have a quite contrary tendency, -in juftice
to the public, the law ought to take its courfe, unlefs there re- ;
fnaineth any doubt, touching his guilt. In this general princi-
pie all the judges concurred.* But two or three of them, out.
of greafr tendernefs and caution, advikd the chiefjuftice to fend
■ another reprieve for the prifoner; fuggeffing that it might pcf-
fihly appear to further enquiry,.'that the boy had taken this mat-
' ttr upon himfelf,. at the ioftigation of fome other perfc-n, who
hoped by the artificer to fcreen the real offender from juftice,
• Accordingly, the chiefjuftice did grant cne^ or two,more re-
prievesj and deffred-the juftice who took the boy^examir.gti-
on, and a J v.) fame 'other perfens in whofe prudence he could
con fide, to make the 'ftrihleft enquiry they could into the affair,
. and make report to hinj. At. length he receiving no further
' lighf, determinecFto fend no more reprieves, and to leave the
pnibner to the juftice cf the law, at the expi ration of the laff-
• Hut before the expirarion of chat reprieve, execution was re-
fp'ftcd till further order*- by; warrant from one of the fecretarfcs
of ihitc, "And at ihe-fummer aftizes 1757, he had the benefit
INFANTS. 261
his majefty's pardon, upon condition of his entering immediate-
ly into the lea fervice. FojL 70.
3. But within feven years of age, there can be no guilt what-
foever of any capital offence; the infant may be chaitifed by his
parents or tutors, but cannot be capitally punkhed, becaufe he
cannot be guilty; and if he be indicted for fuch an offence as is
in its nature capital, he muff be acquitted. 1 H. H. 19, 20.
4. An infant under 14, is preiumed by law unable to commit
a rape, and thetefore it feetrs cannot be guilty of it; and
though in other felonies malitia fupp'et at at em in fume cafes, yet
it feems as to this fadi the law prtiumes him impotent, as well
as wanting difcretion. 1 H. if. 630.
5. Anpnfant may be guilty of forcible entry, in refpedf of per-
fonal adlual violence, t Haw. 147. And the juffices may
fine him therefor: But yet it lhall be good difcretion in the
juffices of the peace, to forbear the imprifonment of fuch infant.
Bait. c. 126.
Becaufe it is faid, that he (hall not be fubjedt to corporal pu-
nilhment, by force of the general words of any ftatute wherein
he is not exprelsly named. 1 Haiv. 147.
6. But if one who wants difcretion, commit a trefpafs, againft,
the perfon or poffeffion of another, he lhall neverthelefs be com-
pelled in a civil addon to give iatisfaction for the damages. 1 H.
2. 1 H. H. 15, 16.
7. An jnfant may bring an appeal, although it take from the
defendant the benefit of waging battle: but he muff profecute
fuch appeal by a guardian. 2 Haw. 161, 162.
An appeal like wile may be brought againft him. 2, Havj. 168.
8. An infant under the age of difcretion cannot be an approv-
er; becaufe he cannot take the oath requifite in that cafe, 2
Haw, 205.
9. In cafe a rape committed upon a child of 12 years old,
fuch child.may be fworn as evidence; yea if ihe be under that
age, if it appear to the court that ihe knows and confiders the
obligation of an oath, Ihe may be iworn. And in caie of evi-
dence againft witches, an infant of nine years old was fworn.-—
I H. H. 634. Dalt. 378.
10. An infant before 21 years of age lhall not be fworn in an
inqueft. 1 lnj}% 78. V. L p. ic8.
11. A woman at nine years of age may have dower ; at 12
may confent to marriage; ami at 14 is of age of diicretion, and
may chufe a guardian. 1 /«/?. 78.
12. A man is of age at 12 years to take the o-nh of allegiance ;
and at 14 is of age of diicsetion, may confent to marriage and
chufe his guardian. I Inji. 171.
H h 13
$62 INFANTS.
13. At 21, and not before, perfons may bind themfelves by
any deed, and alien lands, goods and chattels. 1 In/l. 171.
w No perfon under 18 years fhall be capable of difpofing of
his chattels by will. V. L p. 169,"
14 Upon which ground infants may not enter into recognizance
to keep the peace, or to be of the good behaviour, but their
fureties only.
15. But an infant may bind himfelf to pay for his neceflary
meat, drink, apparel, phyfic, and fuch like ; and a'fo for his
good teaching or inftruction, whereby he may profit himfelf af-
terwards; but if he binds himfelf in an obligation or other writ-
ing, with a penalty for the payment of any of thefe, that obliga-
tien fhall not bind him. 1 Inji. 172.
And in Earl's cafe, 1 Salk. 387. it is laid, that an infant may
buy neceiTaries, but cannot borrow money to buy; for he may
mifapply the money, and therefore the law will not truft him,
but at the peril of the lender, who muft lay it out for him, or
fee it laid out.
19. Aifo an infant hath, without confent of any other, capa-
city to purchafe, for it is intended for his benefit; and at his full
age, he may either agree thereunto, and perfect it, or without
any caufe to be alledged, waive, or difagree to the purchafe:
and fo may his heirs after him, if he agree not thereunto after his
full age. I Inji. 2.
20. The common law feems not to have determined precifely
at what age one may make a teftament of a perfonal eftate: it
is generally allowed, that it may be made at the age of 18, and
fome fay under. 1 Inji. 89. 1 H. H. 17.
21 A perfon is of age to be an executor at 17; andanadmi-
niftration of any one during the minority of an infant, ceafeth
when the infant comes to that age. 5 co. Pigot's cafe. I H.
H 17.
23. An infant cannot anfwer but by guardian; but he may fue
either by his next friend or by guardian. 3 Salk. 196.
24 If an infant of the age of 17 years releafe a debt, this is
vrid; but if an infant make the debtor his executor, this is a good
releafe in law of the action. 1 Inji. 264.
Bet by V. L p. 175. 4 The apppointment of a debtor an ex-
eeutor fhall in no cafe be an fcxtinguiihment of the debt, unlefs
it he fo directed in the will.'
The guardianfhip of an infant may be devifed, or transfered
by deed by his father. See V. /. p. 181.
Infants feized of eftates in truft, or by way of mortgage, may
make conveyances thereof, as the high court of chancery fhall
direct, P. I. p. 182.
And
INFANTS. 263
And they may furrender leafes by order of fuch court, in order
to renew the fame. V. I, p. 183.
For more of Infants fee tides * Apprentices' and 'Evidence.'
INFORMATION.
TNFORMATIGNS are of two kinds. Firft, fuch as are mere-
J! ly at the fuit of the commonweal .h; and ffcbndly, fach as are
partly the fuit of the commonwealth and partly the fuit of the party,
which are commonly called informations qui tam, from thefe
words m the inhumation, when the proceedings were in latin,
qui tarn fro Domino Rcgi quatn pro fi ipfo. 2 Haw. 259.
' Of near allinity to an information qui tarn is an action upon a
ftatute; which is cither a private action, that ie, when an action
is g-.vcn upon a ftatute to the cojnrnonwealth, and to the purty
grieved only; or a popular action, that is, when the action is
given to1 the commonwealth, or to any one who will He for the
commonwealth and himfelf. Wood, B. 4. ch, 4.
But if the 'commonwealth commenccth fuit before the inform-
er, the commonwealth fhc.ll have the whole forfeiture, becaufe
In (uch cafe it alfo is the informer; and it may, before the in-
former begins his "fuit," releafe the penalty to the offender, and
bar all others. But if, after a popular action is brought bv the
informer, the commonwealth's attorney will enter ultcriu; no/i
vult prqjequi, the informer may profecute for his part, hid,
Where a matter concerns the public government, and no par-
ticulat perlon is entitled to an a&ion, there an information will
tie. 1 Salk 375.
' An information lies, at the common law for a variety of crimes
lefs that cap tJ, as Batteries, Cheats, Berjuries, Riots, Extor-
lions, Enhances, Contempts, and luch Ike; and alio it lies in
very many cafes by iLtute, wherein the offender is liable to a
hue, or other penalty. 2 Hawk, 260C
And in geneial, it fee ins that, of common right, an infor-
mat ion at the fuit of the commonwealth, or an action in the na-
lure thereof, may be brought for offences againft uatutes, whe-
tner they be mentioned by fuch ffatutes or not, itnk'fs other
methods cf proceeding be particularly appointed, Ly'which ail
others are impliedly excluded; Ibid,
But an information or action qui tam will not lie on any flatute
which prohibits a thing as being an' immediate offence a gain ft
the public good in general, under a certain penalty, unlets the
whole
264 INFORMATION.
whole, or part, of fueh penalty, be exprefsly given to him who
will fue for it; becaufe other wile it goes to the commonwealth,
nod nothing can be demanded by the party. Bat where fuch
daruti? gives any part offuch penalty to him who will fue for it
by a&ion or information, any one may bring fuch aCtion or in.
formation, and lay his demand, as well' for the commonwealth
as for bimfelf. 2 Hawk. 256. ,
Alfo where a flatute prohibits or commands a thing, the doing
or omiftion whereof is an immediate danger to the party, and
alfo highly concerns the peace, fafety, or good government of
the public; it feems to be the gent ral opinion that the party
grieved, may bring his aCtion qui tam on iuch ftatute, 2 Hawk.
165. f
if an offence prohibited by a penal fiatute be alfo an offence
at common law, the profecution of it as an offence at common
law is no way re drained hereby. 2 Hawk 272. ,
if two informations be exhibited on the fame day, for the fame
offence, they mutually abate < #e another. 2 Hawk, 275. ..
By V. I. (u R. Cond. 1786. cbr 25) p. 35. Actions popu-
Iar profecuterl by coilufion fhall be ho bar to .thofe that bpprefe-
cured with gooiji ftith.
And Compounding fuch aCfions or difmiiling them without
leave of the court Jubjects the profecutor to half th,e penalty to
which the defendant was liable. Ibid. § 2.
The court will not generally quafh an information upon rr.oti-
on; but the party mult either plead, demur, or move in arreft
of judgment.' 1 Saik 372. Str. 185. t -
AnG feeirg that an information differs from an indictment in
Jittle more than this, that the one is found by the, oath, of twelve
men, and the other is not fo found, but is only the allegation of
the perfon v/ho exhibits it, whasfbever certainty is required in an
indictment, the fame at kail is neceilarv, alfo in an iuformation,
and confequentlv as all the material parts of the crime mud be
precifely found in the one, fo mufl they be precifely. pledged in
the other, and not by way of argument or recital, 2 hawky
260, I.
For this reafon, the ftatutes of Jeofails (from y faille, I
have failed) or toe flatutes that do remedy overfiglits in pleading,
extend not to informations. V/ood^ B. 4. cb. 4,
If an information contain feveral offences againft a ftatute,
ard be well laid as to feme of them, but defedive as to the reft,
the'inlrrmer may have judgment for fo much-as is well laid.—
jt Hawk 266f ' "
For the rules in filing informations and the cods accruing on
|hp profecution, as well as the mode of affefling the fine See
JettiWi 2^, 2|; and 2§ of (he eft recited under title Criminals.
Form
INFORMATION. 265
Form of an information quf tam.
county to wit:
Be it remembered that A I, of in the county of gentle-
man, who as well for the commonwealth, as for himfelf doth pro*
fecute, cometh before the jtjiices of the peace for the commonwealth,
a fig red to keep the peace in the faid county, and alfo to hear and
determine divers felonies, trefpajjes and other mifdemeanors in the
faid county committed, at a court holden at in and for the faid
county, the day of in the year of our Lord and in the
year of the commonwealth in his proper perfon; and as well-
for the, commonwealth, as for himfelf giveth the court here to un-
derfand and be infernud, . That A O, late of in tee county
aforefaid yeoman, on the 1 day of in the year afore faid, at
aforefaia, in the: county afore faid, not regarding the laws and
faiutes of this comrnoniveaith, but intending to &c. with force
and arms (here ir.fert the offence with the fame precifion as in an
indictment) againjl the form of the fiatute in that cafe made and
provided: Wh.ereupon'the aforefaid A I, as well for the faid com-
monwealtk, as far himfelfy prayeth the advice of this court in the
premifes-y and that the aforefaid AO, mav forfeit the fum of ac~
cording to the form of the Jiatute aforefaid', and that the fame A I,
may have one moiety thereof, according to the form of the Jiatute
aforefaid-, and alfo that the aforefaid A O, may corns here into
this court, to anfwer concerning the pr emifes:
If the information is filed by the attorney for the common-
wealth, ex officio, and not at the inftance of a common informer,
as in the foregoing precedent, then the form may be thus:
Be it remembered, that .. attorney for the commonwealth, in
the court of who for the faid commonwealth in this behalf pro.
fecutes, in his own proper perfon comes here into the court of the faid
ccramonweahk, onthe day of . ana in the year and in
the year of the commonwealth, and for the faid commonwealth
gives the court here to underjiand and be informed, Izc.
Inns Innkeepers, (fee Ordinaries.)
Inquisition (fee Frefintment.J
INSOLVENTS.
FOR the relief of infolvent debtors it is ena&ed by V. I, (18
R. Cond. eh. 151.) p. 314. That if any perfon fliall here-
after
266 INSOLVENTS.
after he taken c or charged &c.' [here infcrt Se£ts. 38, 39, 40,
4.1, 42, 43, 44, 45 and 46, of the above law.]
' Where ar>y execution Iliall be delivered to the flieriffof any
other county See. [here inlert tlie 52d lection.']
(A) Warrant by a iingle Judge or Juftice to
bring the prifoner before the court,
while fitting.
county to wit:
To the keeper of the jail of the faid county.
Whereas A J, of &c. now a prifoner, upon execution for debt,
in your cujhdy, hath, by his petition to me J iJ, a juficeofthe
peace for the county of aforejaid, [or before me J j, one of the
judges of the general court,] prayed that he may be d'lfcharged out
of cu/iody putfuant io the aft of the general afj'embly in that cafe
made and provided. Thefe ate therefore, in the name oj the com-
monwealth, to require you to bring immediately before the jufices
cf the peace of this commonwealth now fitting in court, at the court-
houfe of the paid county cf • [or before J J, and J 'J. judges of
the general court now., fitting at the dijlrift court appointed ty law
to be holdtii at ] the body of the faid A J, together with a If
of the fevered executions, wftb tbhich he fanes charged in the /aid
jail; and have then there aljo this precept. Given under niy band
andfealj Gjc, •
(B) Warrant by two Judges or Juftices to bring
the prifoner before them when the court
is not fitting.
county to wit:
To the keeper of the jail of the faid county.
Whereas A J, of iffc. new a piifoner tab en in execution of
debt, and in your cvfody, hath, by his petition to us f. P. & K.
P. two of the jufices of the peace for the faid county, or J. J, id
j. J two of the judges oj the General Court prayed that he may
be aifchorged out 0) cufody, purfuani to the aft of the General /j-
fembly in that cafe made and provided: 1 Lefe ai c therefore, in
the name of ihe commonwealth, to require you to bring before us or
any two jufices of this county at the court-houfe of this county, on
INSOLVENTS.
the day of next, or if confined in a dijlritt jail9
before us or any two judges of the Central Court on the
day of next, at the houfe of &c. the body of the
faid A. jh. together with a lift of the federal executions wherewith
he ftands charged in your jail j and have then there this precept.
Given under our hands andfeals, &c.
The oath to be taken by the prifoner is already ir.ferted.
Warrant of Difcharge.
county to wit:
A, B, C, D, E, F, ('all the members of the court,}
juftices of the peace, and of the court of the Jaid county, [or J J,
and J J, two of the judges of the general court] [or f P, and
K P, two of the juf iceS of the peace for the county of afore faid.
To the fheriff or keeper of the jail of the faid county.
IV«. hereby command you, in the name of the commonwealth, forth-
with to releafe and jet at liberty A f, a prifoner now in your cuf-
tody, by virtue of an execution againjl him at the fuit of for the
fum of (if more executions, mention them all) the faid 4 f,
having complied with the directions of the ad of the general a fern-
blyjor relief of infolvent debtors, if the faid A J, is detained in
your cuftody for no other cauje than the execution (or executions)
aforefaidj and for your fo doing this fall be your warrant. Gi-
ven &c.
Inspectors, See (Tobacco.)
jail and jailer.
For breaking jail, fee title Prifon Breaking.
I. Building and repairing fails.
II. IVbo fo all have the keeping of jails,
III. failcr fall receive pr if oners,
IV. How they fall he maintained, and the fees
allowed for maintainance,
1 ' V.
268 jail and jailer.
V. How prifojiers jhall be retained and kepi.
VI. How they Jhall be delivered.
VII. Of jailers permitting efcapes.
I. Building and repairing fails.
The power and duty of magiftrates in building jails, &c.—
alfo the penalty for negleit, and the remedy given the fheriff
againft the members of the court, for the infufficiency of the jail
may be found in V. L (17 R. Cond, 1792, ch. 67, § 13 p. 92.
II. Who Jhall have the keeping of fails.
The jail itfelf is the commonwealth's, but the keeping thereof
is incident to the office of fheriff, and infeparable from it. 2 injl.
589.
A jailer in faff is as much puniffiable for a mifdemeanor as if
he were a rightful jailer. 2 Hawky 134.
Judge Black/lone fays, jailers are the fervants of the fheriff,
and he muft be refponfible fop their conduit, 1 Blacks com. 346.
III. f oiler Jhall receive pr if oners.
All felons fhould be imprifoned in the common jail.
And if a jailer refufe to receive a felon, or take any thing for
receiving him, he (hall be punifhed. Dalt. c. 170.
IV. How they fall be maintained.
Lord Coke fays the jailer cannot refufe the prifoner victuals,
for he ought not to fuffer him to die for want of fufienance.
I lnfi. 25 .
But this is denied by others, fee Bacon's abr. jail and jailer, F
The fee to the fheriff (and of courfe to the jailer) is 21 cents
3 day for the maintainance of a debtor. V. I. p< 228.—In what
manner they are to be paid for the imprifonment of infoiventdeb-
tors, fee V. L p. 316.
For the maintainance of a criminal the fee is 17 cents a day.—
V. I. p. 83.
1 he fame for a runaway, and 25 cents for commitment, and
the fame for releafement. V. I. p. 257. V.
JAIL" and J A I L" R R. 269
V,. How prifoners Jhall be retrained and< kept.
The county jail is the prifon for malefactors; but prifoners for
debt, where efcape lies againft the fherifF for their efca pin gr may
be kept in what place the fherifF pleafes. Ld. Raytm 136:
For removing prifoners frorrt thetounty tothe diftrict jail, and
by Habeas Corpus, fee titles Criminals and Habeas Corpus,
It feemeth generally in all cafes where a man is> committed to
priion, efpecially if it be for felony, ox upon an execution, or
but for a trefp.ifs or other offence, every jailer ought to keep
fuch prifoner in fafo and clofe cullrody j fkfe^ that he cannot ef-
cape i and clofe without conference with others or intelligence
of things abroad, , Dalt. c. 170,-
And therefore if the jailer fhall licence his prifoner to go abroad
for a time,, and then to come again, or to go abroad with a keep-
er tho' be come again, yet thefe are efcapes., Dalf. c. 170.
And hereupon it is lawful for the jailer to hamper a felon wiffi
irons to prevent his efcape, I H. H. 60i» Dalt. c. 170. and it
is fatd that a jailer is ho way pumihable for keeping evert atleb-
tor in irons. ' 2 Haw. 152.
But the learned*editor of Hale's Hi/lory obferves that this li-
bcrty even in the cafe of a felon (much more in the cafe of a prf-
foiier for debt) tan only be intended, where the officer fias jufi
reafon to fear an efcape, as where the prifoner is'unruly, or
makes any attempt to ihat purpofe; hut other wife, not with ftani-
ing the c'o union practice of jailors, i. feems altogether unwar-
rantable, and contra; y to the mildnefs and humanity of the Uw9
of the commonwealth, by which jailers are forbidden to put their
prifoners to any pain or torment. And lord Coke^ 2 lnft, 381,
is expre£s,-that' by the'common law at might not be done. I H.
H. 601, ^ - 1
And if the jailer keep the- prifoner more ftriCUy than he ought
of right, whereof the prifoner ffieth, this is felony in the jailer by
the common lawj and" this is the caufer that if a prifoner die in
jail, .the Coroner ought to let upon him, and if t^e death WaS
owing to cruel and oppreffive ufage on the part of the jailer of
any fffieer of his,- it will be deemed wilful murder in the perfoii
guilty of foch durefs, 3 hi/L 91, Fo/f. 321, 322.
But if a criminal, endeavouring to break the jail, affau't his
jailer, he may be lawfully killed by bim in the affray* 1 Haw*
71. 1 H. H. 496, For jailers and their officers are under the
fan>e(fpecial protection, that other pinifters of jultice are. And
therefore if in the neceflary difcharge of their duty they meet
with refinance, whether from prifoners in civil or criminal fobs,
or
li .
2 yo jail and jaileii.
or from others in behalf of fuch piifoners, they are not obliged
to retreat as far as they can with fafcty, but may freely and
without retreating repel force with force. And if the party fo re-
filling happeneth to be killed, this on the part of the jailer, or
his officer or any perfon coming in aid of him will be juftifiable
homicide. On the other hand, if the jailer or his officer, or any
perfon coining in aid of him, fhotlld fall in the conflict, this will
amount to wilful murder in all perfons joining in fuch refiftance.
It is homicide committed in defiance cf the juftice of the com-
monwealth. Fojl. 321.
But forasmuch as the jail is intended, in molt cafes for cufto •
dy and not for punifhment; and confinement itfelf, efpecially in
fuch difmal abodes as it is to be feared many of the jails are, is
fufficiently afHicStive and difconfolate; human nature will plead
for thofe miferable objects, that their condition be rendered as
tolerable as the cafe will admit of; particularly with regard to
cleanlintfs, which is the parent of health; and wholefome air,
w hich is life itfelf. A remarkable efFecff of want of care in this
refpeft, fir Michael Fofttr takes notice of, in the cafe of one
Mr. Clarke who was brought to his trial at the Old Bailey fefli-
ons in 1750. It being a cafe of great expectation, the court
and all the paffages to it were extremely crouded. The weather
aifo was hotter than is ufual at that time of the year. Many
people who were in the court, werefenfibly effected with a very
noifome fmell. And it appeared foon afterwards, upon an enquiry
(ordered by the court of aldermen, that the whole prifon of Newgate,
and all the p-affages leading thence into the court, were in a very
filthy condition, and had been long f:-. What made thefe cir-
cum fiances to be at all attended to was, that within a week or
ten days at molt after the feffions, many people who were pre-
fent at Mr, Clark's were feized with a fever of the malignant
kind, and few who were feized recovered. The fymptoms were
much aiike in ail the patients; and in ltfs than in fix weeks the
riiffemper enrrely ceafed. At the time this difafter happened,
there was no ficknefs in the jail, more than is common in luch
pLofc, Which circumflance, that dillinguifheth this from moft
of the cafes of the like kind which we have heard of, fuggefls a
very proper cauiion, not to prefume too far upon the health of
the jffi, bare! / becaufc the jail fever is not among the piifoners.
For without doubt, if the points of cleanlinefs and free air have
been greatly neglc&ed, the putrid cjjluvia which the prifoners
bring with them in their clothes or otherwife, efpecially where
too many are brought into a crouded court together, may have
fat l effects upon people wo are accuftomed to breathe better air;
though the poor wretches, who are in fome meafure habituated
to the fumes of a prifon, may not always be fenfible of any great
inconvenience
jail and jailer. 271
inconvenience from them, The perfons of chief note who were
in the court at this time, and died of the fever, were fir Samuel
Pennant, lord mayor for that year, fir Thomas Mney one of the
juftices of the common pleas, Charles Clark efquire one of the
barons of the exchequer, and fir Paniel Lambert one of the al-
dermen of London, Of lefs note, a gentleman of the bar, two
or three ftudents, one of the under fheriffs, an officer of lord chief
juftice Lee who attended his lordffitip in court at that time, fcve-
ral of the jury on Middlefex fide, aqd about forty other pet ions
whom bufinels of curioiity had brought thither. Fojl. 74.,
VI. How they JJjall he delivered.
The jailer being an officer whofe attendance is always necef-
fary on the court, and by fome a£!s of aflembly is made expreffi-
ly fo, fee V. /. p. 82) he fliould always be careful to certify to
the courts, to which the prifoner (lands committed, the mittimus
or warrant of commitment, in order that the perfon accuftd may
receive his trial, and if found not guilty may be difcharged.
Afid if a jailer detains a prifoner in jail after his acquita!, un-
lefs it be for his fees (not for meat, drink or lodging) this is an
unlawful imprifonment. 2 Injl. 53.
And a jailer mud not difobey a writ of habeas corpus, for want
of his fees; but the court will not turn the prifoner over till the
jailer be paid all his fees. 2 Haw. 151.
VII. Of "jailers permitting efcapes.
i. In criminal cafes,
ii. In civil cafes.
i. In Criminal Cases.
If the jailer voluntarily differs a prifoner to efcape, he (hall be
punilhtd in the lame manner as the prifoner ought to have been
who efenped ; and if he 'negligently differed him to efcape, he (hall
be punifhed by fine and imprifonment. And the (lieriff (hall
aiifwer for him. 2 Hawk 134., 5, 6.
But the principal jailer is only fineable for the voluntary efcape
of a felon fullered by his deputy; for 110 man (hall fuffer capitally
for any crime, bus, he who is actually guilty of it, 2 Hawki
272 j a i l and jailer.
But for a negligent efcape fuffered by his bailiff the fherifF is
as much liable to anfwer, as if he had actually fuffered it himfelf;
and the court may charge either the fheriff, or bailiff for it:
And if a deputy jailer be not fufficient to anfwer a negligent ef-
cape, his principal rnuft anfwer for him 2 Hawk. 135.
But it will not be felony if the prifoner be permitted to-efcape,
when no felony was committed. 2 Irtjh 592.
ii. In Civil Cases.
I. What Jhall be an Fjcape.
An .efcape from the bounds of the prifon without the jailer's
knowledge is not a voluntary efcape. 2 Term. Rep 126.
An adtion Jies for an efcape, if he permits his prifoner to go
at large, tho' he afterwards returns. I). 3. Co. 44 a. 1 ~Rol.
/. 13-
Tho' he returns the fame day, and afterward® plaintiff proceeds
to final judgment.R.avenjcroft. v. Ey esy 2 /P'iis. 294.
If the defendant being taken in execution be afterwards fxn
at large for any the fhorteft time, even before the return of the
yvrit. 2 Bl, Rep. 1048. ' •
Tho' he does not go out of the fame county. 1 Rot. 806.1. 15.
Or, 'out of the town where the jail is. 1 R0L806./. 2\.Hcb.2Q2.
Tho' he has a keeper with him. D 3, Co. 44, a. i. Rol.
806 /. 17, 20. R. PI. pom. 37: Hob 2Cg.
■ Or, upon any habeas corpus be permitted to go at large in the
country. Semb. Gro. Car. 14, 3 Co. 44. a. Mo. 257. 299.—
Per Hale. 1 Mod 116. ' Hard. 476.
Or, if upon a habeas corpus ad ujl'ficand; he goes before and
ffays a long time after the affixes. Semb. 1, A-Ld. 216.
If after judgment, and before any charge in execution, a pri-
foner is'refcued when brought out on a habeas corpus } it is not
a good excufe for the fheriff, in an action of efcape, and he ftull#
anfwer it to,the plaintiff, Crampton, v. Ward. Sir. 429.
If a prifoner is removed by habeas corpus fyam BR, to C B,
and efcapt-s, plaintiff in an action of efcape need not fet out the
procefs in C B, againft the prifoner. Gamblery v. Wright,
I. 6 G, 2. Sir. 951. ^»
So efcape lies, tho' taken upon an efcape warrant} by the Ji.
j. An. 6.
If the recaptjon is after the adtion brought, it is {fill an efcape.
R. on Demurrer. StouehouJey v» Multlns. J 4. G. 2. Str.
So
&73
JAIL AND JAILER. 273.
So an a&ion lies for an efcape, where the prifoner was arreft-
cd by procefs out of an inferior court.
, 1 ho' it be pleaded that the caufe of adfion arofe out of the ju-
rifdiiRiori and that the officer had notice of it before the return of
the writ: for the officer cannot examine that matter. R. 7; An.
inter Higgifon and Shraf (Comyns*s Rep. 153. &c. by the name
of Higgifon v. Sheriff.)
Tho the judgment was erroneous, or for one who fued with-
out colour. R. 3 Mod. 324. Catth. 148 A dm. 5. A'tod.
413. R. 8. Co. 142. 2 Bui. 63. R. Cro. El. 164, 576*
42. cont.
So an adfion lies for an efcape, tho1 he was convidled for fe-
lony, before judgment and execution againft him, and continued
in prifou for the felony; for until he be executed for felony, he
is chargeable to the party. R. Sav. 63. 1 Lee. 276. 2 Lev.
b'4'
2. IVhat fall not be an efcape.
But it will not be an efcape, if the party never was in his cuf-
tody: As if the old fheriff does not deliver him over upon fitch
execution. R. 3. Co, 72. Adm. 2 Cto. 588. Poph. 85.
Lev. 54.
If he be arretted, but not adlually committed to j til, the jailer
fnall not be charged for an efcape. R. 1* Rol. 806. /. 30. *
So, if a committitur be entered upon the roll, but the party is
not taken. 1 Sid. 220.
So if a man bailed renders himfelf in difcharge of his bail, and
a reddidit fe is entered in the judges bock, and a committitur en-
tered with the proper officer; yet if a committitur be not entered
with the maiiffial of B R, or a rule ferved upon him he fhall not
be charged for an efcape, tho' the bail be discharged. R. 1 Sal.
2>2> 3; . ,
S°, if the entry be, that virtiitc of an habeas corpus to a juoge
of B R, debito rnodo commiffus fuit mar; for that cannot be by
virtue of the habeas corpus, R 1 Sho. 17, 8.
It mutt appear that, the commitment is of recprcf; therefore,
if it is laid that the prifoner was committed to the cuftody of the
marffial, at the fuit of plaintiff, by it, one of the juftices of the-
commonwealth, it is ill. ILightman, v, Mullins. Sir. 1226.
If he be at the hcufe of the jailer, but not within the prifou.
R Cro. Car. 210.
So it wili not be an efcape, where the prifoner was not in
cuftody at the fuit of the plaintiff: As, if he was taken by a
capias utl:gatum, or a capias pro fine\ where a capias does net
lie in fuch fuit. 1 Rol. 810, 1. 30.
Or,
274 jail an» jailer.
Or, when he was not charged at the prayer of the plaintiff:
1 Rol. 810 /.'30. R 1. Leo. 263.
Or, was arretted and fuffered to go at large before the writ
of execution was delivered to the fheriff. 1 Rol. 809, /. 30.
Or, upon a ' capeas, 'where no capeas was awarded by the
court. 1 Rol. 809. I. 35.
So it-will not be an efcape, if he goes out of prifon, byreafon
of a fudden fire in the jail. 1 Rol. 808, /. 7.
Or, the jail be broke by the commonwealth's enemies. Bro\
Ejcmpe 10. i Rol 808, /: 5.
Or, the defendant be refcued upon a mefne procefs, before he
was in jail. Mar: 1. ' I Rol: 807, /: 35. R. 2 Cro: 419.
2 Liv: 144. 1 Rah 389, 440, '
Tho' the refcous be not returned. R. 2, Lev: 144.—Or if
it be. • R. 1 Rol: 140:
So, if the defcndantbe retaken upon frefh fuit, before the ac-
tion commenced for the efcape. R: 1 Rol: 808, I: 50. R: 3
Co: si. R: 13. H: 7,2. Godb: 434. Gol: 180. F N B.
130. B. 1 ■ ' ' ■
Tho' the frefh fuit was not begun 'till a day and a night after
the efcape. R. 1. Rol. 809, /. 10. 2 R«/. 68 r, /, 50. 3 Co.
52. Mo. 660. Poph. 41. - '
Tho' he did not retake him 'till he fled into another county.
Bro. Efcape. 4 R. 3 Co. 52.
Tho' he was out of fight. R. Poph. 41: 3 Co. 52, 14. H.
7> a*
Tho' he did not retake him 'till feven years after, if it was
upon frefh purfuit. 13 Ed. 4, 9. a. Godb. 177.
So a voluntary return of a prifoner, after an efcape, before
a&ion brought, is equivalent to a re-taking on a frefh puifuit:
•but it mutt be pleaded. 2 Perm. Rep. 126.
Rut frelh fuit is no plea, where the efcape was voluntary in
the fheriff. R. .2 Rol. 283.
Or, after an action brought, tho' before plea. Senib. 2.
Rol. 283. R. cont. Lot. 200.
So the fheriff fhall not be charged for an efcape, if the
prifoner goes out of prifon with the aflent of his creditor. 2 Injl:
382.
Tho' the aflent be only by parol, it fhall be a bar. 2 Inf.
382. By. 2JS. a.
But an aflent by parol after an efcape does not difcharge the
fheriff. By. 275. a in may.
So it will not be an efcape, if the fheriff, upon a habeas cor-
pus, brings his prifoner to the fjperior court, tho'he goes out of
the direbt way. R. 3 Co, 44. Mo. 299.
So
jail and jailer. 275
So if he goes with a keeper to counfel, &c. when he is in ex-
ecution for the commonwealth's debt, tho' not in the cafe of a
common perfon, becaufe the jailer may retake him. R. Sav. 29.
So, if diicharged upon, an audita querela, tho' the writ be af-
terwards vacated. R. Mo. 354.
So, if a prifoner, brought by habeas corpus, goes out of the
cuftody of the iherifF, and returns the next morning, and appears
at the return of the writ. R. Mo. 257.
So, if a prifoner goes out of the rules of the prifon, with the
confent of the plaintiff, without a keeper or rule of court, upon
an intent to agree with the plaintiff, and no agreement is made;
yet the prifoner fhall be difcharged upon an audita querela. R.
Str. 117. Semb. cont. If the plaintiff affents upon condition
that it fhall not prejudice his execution. Dy. 275. a.
3 When he fhall be retaken t &c. after an efcape.
If the prifoner efcapes by negligence of the fheriff the fheriff
may retake him, and he fhall not have an audita querela. R.
3 Co. 32. b. R. 1. Sid. 330. Mo. 660. Dub. She. 70. Jdnu
Sho. 177.
Or he may have an a&ion on the cafe againft the prifoner for
his efcape; whereby he becomes fubjedt to the a£tion of the par-
ty. D. 3. Co, 52, b. Mo. 660. R. Mo. 404, 597. R. Cro,
El> 53> 237* 1 Leo* 237* fut- 64-
And this, before an acfion or recovery again if the fheriff, as
well as after. Mo. 660. R. Godb. 125. Cro. EL 53.
Tho' the party afterwards acknowledges fadsfadtion upon re-
cord; for that goes only in mitigation of damages. R. 1 Leo.
237. Semb. cont. if he does not ihew fpecially, how fatished.
Cro. EL 237.
So, if a prifoner efcape?, and afterwards returns to the(prifon,
the plaintiff may admit him in execution tho' he has a remedy
againft the fheriff. Cont. Hob. 2G2. R. acc. I Vent. 269, 2.
Lev. 109, 132.
Or may retake him by a new capias ad faiisfacienclum, if the
firft be not returned and filed. R. 3. Co. 52, b.
So he may retake him in all cafes upon a negligent efcape; for
the fheriff may be infuiheient. R. cont. Hob. 202. R. acc. I.
Sid. 33c. 1 Vent. 4, 269.
So, tho' the efcape was voluntary by the jailer, and without
his confent. R. 1 Sid. 330. 1 Vent. 4. i Lev. 2II. 2 Mod.
136. R. 2. Jon. 21. roam. Sho. 177. Semb. coat. Hob. 202,
See title " Efcape," of this work, where the mode of proceed-
big on an efcape is fully pointed out.
So,
276 Jail am jailer.
So if a priforici' be di Cad bell open a wrongful audita qturdp^
he may be reraken, a>.d thill be in execn'.i n. R.-A'Jo. 354.
So after an efcape, the plaintiff may have debt or a (cite jacks
againft the defendant up^n the former judgment. R. 1 Pent.
269. Cart. il2. 2 Jon 21. R. LtU. 126b.' Sl?o. 174,249
Tho it was with his eonfent fubftquenf. 1 Sal. 271. 1 ho lie
paid the money to the jailer. R. 2. Jon. 97.
So if a man taken in execution be reffued, he may-be retaken,
-or a fcire facias lies againft him. P. Cro. Car. 240.
But, if the fheriff fuffers a voluntary efcape, he wiil not have
an adtion upon the cafe againft the prifoner. R. AP. 597.
Or, if he retakes him, the prifoner fhall have an audita que-
reia. 3 Co. 52 b. R. 1. Sid. 330.
After v duntary efcape jailor cannot retake prifoner; after in-
voluntary he may, without warrant, and upon a Sunday, Barn's
373' ' '
So if the fheriff permits a voluntary efcape with eonfent of the
plaintiff, he never can be retaken by the fheriff, pr the plaintiff.
R.'Sho. 174. D. 2. Leo. 119.
If the eonfent of the plaintiff' be precedent to the efcape j other**
wife if fubfequent. R. I Sal. 271 '
Yet if A. permits a voluntary efcape, and quits his office to
B, to whom the prifoner returns; B ought to retain him: other-
wife it will be an efcape in him. 1 Vent. 269. 2 Leo. 109.
Semb. Mod. Ca. 183. Samb. cont. Hob. 202.
Or, if the office defcends to B. R. 2 Levs. 109.
And an adfion for the efcape lies againft A or B. if he alfo
permitted an efcape, at the election of the plaintiff. R. 2 Lev.
J32-
But if the party be not taken by lawful dtithority upon an ef*
cape warrant, if this appears upon-the return of the warrant, he
ihail not be committed to the county jail, but to the former pri-
fonj As, if brought, not by a conftable or other officer, but by
perfons not known. Mod. Ca. 154.
A, refffts the fervice of an order of chancery, is committed
for the contempt, goes at large, retaken on an efcape warrant,
and committed to Arctvgaie\ "efcape warrant fuperfeded; the con-
tempt not being for'not obeying a decree, and A fent to the for*
mer prifon, irlinchcliff v. Payne. Sir. 423.
If a man efcapes and returns again,' and then commits a fe-
cend efcape, he cannot be taken up for the ffrft efaupe, it being
purged by his return. Str. 423.
So, if he be difcharged by agreement, after commitment upon
an efcape warrant, he fhall not be afterwards retaken. AusJ.
Ca. 254.
If
JAIL and JAILER. ijj
. If the defendant was intttled to his difcharge at the time of his
efcape, and would be intided to it tfs'fooa as taken on the efcape
warrant, the court will fuperfede the warrant, Web v. c£homp~
Jon. Str. 401.
A man taken upon an efcape warrant of a judge, after his pa~
tent is determined, fhall be difcharged, Carter v. Jewel, Ld<
Raym. 1513.
If a prifoner efcapes, and plaintiff fends an order for his dif-
charge, the jailer cannot retake him for his fees, /Filling v Goad,
Sir, 909.
4. What remedy by aBionfor an efcape,
By the common law, the fheriff, and every jailer, ought to
keep peVfons in execution in Jabua cujhaia. 3 Co. 44.
And if fuch a prifoner efcapes, an aftion upon tne cafe lies
againft him. 2 Injl. 382. R. 1. Rol. 99. /. 10, 15. 2 Cro.
289. 2 Lev. 159.
And debt lies in all cafes, for an efcape, againft a jailer, 2
Injl. 382. R. PL Com. 36 b, Jrlrn, 2 Lev. 159. 15 Ed.
4, *o»
And may be fued by writ or by bill of debt. 2 Injl. 382.
Dub. PL Com. 38, a. 42 Ed. 3. 13. a.—F. L. p. 127.
So, if two are in execution and one t)f them efcapes. 1 Rol*
2°3.
Cafe (but not debt) lies for the efcape of an outlaw on mefng
proccfs. Cooke v. Champneys. Stri got. * ■
An adminiftratrix may maintain an adtion in her own name
againft the maifhal for the efcape of a prifoner i/i execution on
a judgment obtained by her as adminiftratrix. 2 derm. Rep.
126.
Under a count for a voluntary efcjpe, the plaintiff may give
evidence of a negligent efcape, and the defendant may plead a
re taking on a freih pundit to fitch a county without travelling
the voluntary efcape . Id. ibid.
In debt for an efcape againft the fheriff, the indorfement of
non tft inventus on ihe ca. sa. is ftifRcknt evidence of its having
been delivered'to him. Coup. 63.
A leral arreft rnuft ,be proved in fuch adfion. Id. Ibid.
In debt againft the fheiiff or jailer for an efcape, the jury can -
not give a lets fum than a creditor would have recovered againft
the (prifoner, viz. the fum indorfed Oa the writ, and the legal
fees of execution. 2 'Term i 26.
K k
278 jail and jailer.
5. Hgainjl whom the action fid all be brought.
The a&ion for efcape (hall be brought againft him who has
the cuftody of the jail.
Tho' he has it de fadio onlv, and not de jure. 2 Injl. 381, 2.
As, it fhall be againft the fheriff, not againft his deputy.
As, the jailer who takes care of the prifon in the county. 2 Inji.
382. R. 1. Rol. 94. /. 30. Semb. Hard. 34.
As the ferjeant, who makes the arreft. R. 1. Rol. 806.
7* 4S- .
bo it lies againft the old flierift", if he omits to deliver any
prifoner by indenture to the new. R. 2. Leo. 54.
But an adtion for an efcape fhall not be againft the fuperior,
if the inferior be fufficient. 2 Injl. 382.
But in all cafes where the inferior is infufficient, debt lies
againft the fuperior for the efcape. Semb. 2. Jon 60. 1 Vent.
314. 2 Lev. 158. 9 Co. 98. a.
If he be infufticient at the time of the action brought, tho' he
was fufficient, at the time of the commitment or efcape; for that
is the time moft regarded. 2 Jon. 61. 2 Lev. 160.
And therefore a verdidt is not fufficient, if it does not find the
infufficiency when the adbion was brought, tho' it finds him in-
fufficient when he was keeper, or at the time of the commitment
or efcape. R. 2. Jon. 61. I Vent. 314. 2 Lev. 160.
So it lies againft the fuperior, tho' the inferior was admitted
by the court. Adm. 2. Jon. 61.
Tho' the fuperior had no notice of the inefficiency. Adm. 2.
jo"/. 61.
1 he fuperior againft whom the acftion ought to be brought,
is he, who by his eftate in his office, or by his authority with-
out eftate, has the power of putting in the inferior officer.—
2 Jon. 6 I.
So debt does not lie againft the fuperior upon a general de-
clatation for an efcape; but he ought to be fpecially charged for
the infufficiency of the inferior. R, 2. Lev. 160.
Indiftment agsinft a jailer for negligently permit-
ting a prifoner committed to his cuftody by
virtue of a juftices warrant, to efcape.
7he jurors for the commonwealth upon their oath prefent, that
on the day of in the year of the commonwealth, 7 D.
efquiret iu*n bang one of the jujliccs of the commonwealth, ajjignect
to
JAIL Ai^D JAILER. 279
to keep the peace of the faid commonwealth, in and for the faid coun-
ty of and alfo to hear and determine divers felonies, trefpafjes,
and other mifdemeanors committed in the fame county, in due form of
law did moke his warrant of commitment under his hand and feal,
to wit: at the parifh of S, in the faid county of bear-
ing date the fame day and year aforefaid, dire lied to the keeper of
the common jail in and for the faid county cf by which
Jhid warrant of commitment the faid keeper was required to
receive into his cujlody the body of W M, who was therewith
fent to him the faid keeper (the faid W M having been brought■
before the jaid I D, the jufice aforefaid, and charged upon
the oath I S, with ajfaulting and robbing him of his watch and
money, to tvit, one jh illing and fame halfpence, in a certain
place near the commonwealth's highway, in the parifh of S, in the
faid county of ) and him fafely to keep until the that next court
dfc. for the faid county, as by the fame warrant more fully appearsj
by virtue of which faid warrant of commitment, afterwards to wit,
on the faid day of in the ' year aforefaid, at the parifh
of -in the faid ccunty cf ~ A B then being the keeper of the
common jail of the faid county of did receive the faid W M into
his cujlody in the Jaid common jail there jiiuate. Jind the jurors
aforefaid., upon their oath aforefaid, do fw ther prejint, 1 hhi the
faid A 13, late of the parifh of in the faid county of yeoman,
Jb being keeper of the faid common jail, and having the faid W M
in his cujlody in the faid jail on that occafcn, afterwards to v/ti,
on the duy of in the year aforefaid, at the parijh aforejaid,
in the county aforefaid, unlawfully and negligently did permit,
andfuffer the faid W M (fo being a prifoner committed to the faid
jail as aforejaid) to efcape and go at large from and out of the cuf-
tody of him the faid A B out cf the faid prifon, wiperejoever be
Would, to the great hindrance and ohjhudiion of jufice, in cent.- mpt
cf the' laws of this commonwealth, to the evil example of all others
in ihe die cafe offending, and aguhf tf peace and aigyity of the
commontveattb.
J U D G M E N. T.
OF judgments, Come are fixed and fitted; at in cafes of trea-
fc>n, felony, and miipriions: the particular form cf which
may be feen under their refpediive titles.
Others are difcretion.ary and var-iabie, according to the parti-
cular cit curnfiance of each cafe; '1 fius f< r crimes of an infamous
natu e
2So JUDGMENT.
nature, fuch as petit larceny, perjury, or forgery at common lav/,
grofs cheats, conspiracy not requiring a villainous jugdment,
keeping a bawdy houfe, bribing witnefles to fb'fle their evidence,
and other offences of the like nature: It feems to be in a great
meafure left to the prudence of the court to inflidt fuch corporal
punifhmetit and alfo fuch fine, and binding to the good behavi-
our for a certain time, as fhall feem moil proper and adequate
to the offence. 2 Raw. 445.
The court may aflefs a fine, but cannot award any corporal
punifhment agaim't a defendant, unlefs he be adfually prefent in
court, id. 446.
Where there are feveral defendants, a joint award of one fine
againfl them all is erroneous; for it ought to be feverally againft
each d< fendant. for ©therwife one who hath paid his proportion-
ate part, might be continued in priion till all the other? have alfo
paid theirs, which would be in efFedt to punifh hijn for the offence
of a nor her. id. < ■
A fine is under the p£wer of the court, during the terra in
which it is fct; and may be mitigated as Oiall be thought proper;
but after the term it admits of no alteration, id.
A judgment contrary to the verdidf is void. Read
By many ftgtutes, peculiar punixhrnenis are appointed for
feveral offences, as pillory,, ftocKf, irrrprifbnment and the like:
and in all thefe fcafes, :no room is left for the ju ft ices diferetion,
for'they ought to give judgment, and to inflict the punifhment
in all the circumltances thereof, as fuch flatute doth diredt.—
Dalt. c. /85. , '
And by many 2<5ls of affembly the fine impofed on the offender
in the cafes therein mentioned, is to be afiefied by a jury, and
c. nfequentjy not diffretlonary with tne court.
JU'RIES and .J U R O R S.
THE trial by jury has long been the fubjecf of encomium
among A: the moff celebrated writers on the Englifh law.
Its original has been traced up as far back as the Saxons them-
felves, and its uff has continued thro' the various revolutions fuf-
tained by our British -ancestors. But while we admire the the-
cry of this inflitytion as delineated by its enthufiaffic advocates,
we have to lament, that, both in England and America, it is,
in practice, too fufceptible of abufe.
But hecafe an inilitution may be abufed it does notneceffarily
follow that it fhould be wholly rejected. It is the fate of all hu-
man
JURIES AND JURORS. 281
man productions; and we ought rather to fubmit to it in this
inibnce than lofe the many invaluable advantages peculiar to the
trial by jury. Its utility in preferving the liberty of the people
has been fully proved by its long duration in England ; and from
that nations having retained its liberties longer than any other
part of Europe, where the trial by jury was either not known,
or entirely laid afide. And fo fenhble of this important truth
have the people of America been, that it is made an exprcfs ar-
tide in mo ft of the conftitutions of the feveral United States,
and was lhrongly infilled on, and at length obtained as an amend-
ment to the federal conftitution, that the ancient trial by jury
jhuld be bell facred. It lhould therefore be our ftudy to prderve
this palladium of our liberties from thofe abufes and encroach-
nients which can alone endanger the inftitution itfelf, and with
it the rights of the peooJe, See 3 Blacks com. cb. 23.
In elucidating this fubjed; i Hi all coniider,
I. Who may or may not be jurors.
II. How and by whom fummoned.
III. Of tne challenge of jtirors.
IVh Of the demeanor of jurors in giving their
verdibu
V. Of the indemnity and punilhment of jurors.
I. JVho may, or may not be jurors,
Bv V. /. 17 R. Cond. 1792, cb, 73, § 12) page 108. No
pei.nn Ihaii be capable, &c. [here infer the 12th feclion of the
above law. I
By life. 13 of the fame law, " Juries de me diet ate linguae
may be dncited by the courts refpedtively."
II. How, and by whom fnmmonrd.
By V, L. (17 R. Ccnd. 1792, cb. 73, fecft. I, 2, 4, 10,)
page ic6 " khe ITleriff of each county, where a did rid. court
u i:c. [here irifert feet. 1, 2, 4, 10 of the above law.] For the
" oaths of grand jurors, fee title Oat sd'
And bv ffeion II cf the lame law, * for the trial of ail caufcs
&c. [here ir.fert the 11 feet, of the above law,']
By iebh 17. 4 If any fherifF fife! fail to fummon a grand-
4 jury, and return a pannsl of their names as herein directed, he
fliall
2b2 juries and jurors.
* fhall forfeit and pay twenty dollars for the ufe of the common-
' wealth.'
Concerning a venire facias for the trial of a criminal. See tl-
tie 1 Criminals.' ^
III. Of the challenge of jurors.
And herein,
/, Of the several kinds of challenge,
it. When the challenge is to be taken,
til. How the challenge fall be tried.
i. Of the feveral kinds of challenge.
There are two kinds of challenge, either to the array, by
which is meant the whole jury as it Hands arrayed iri panel or
little fquare pane of paper, on which the jurors- names are writ-
ten, or to the pollsby which are meant the feveral particular
perfons or heads in the array. I bijl. 156. 158.
Challenge to the array, is in refpedft of the partiality or default
of the fherifF, coroner or other officer that made the return; and
this is two fold.
I Principal challenge to the array; which if it is made good,
is a fufficient caufe of exception, yyithout leaving any thing to
the judgment of the triers.
Caules of challenge of this fort, are fuch as thefe: If the (lie-
riff or other officer, be of kindred or affinity to the plaintiff or
defendant, if the affinity continue. If any one, or more of the
jury be returned at the denomination of the party plaintiff or
defendant, the whole array fhall be quaffied. If the plaintiff", or
defendant have an atSlion of battery againft the fhcriff, or the
flieriff againft: either party, this i> a good caufe of challenge.
So if the plaintiff" or defendant have an adtion of debt againft the
flieriff; but otherwife it is, if the fherifF have an adticn cf debt
againft cither party. Or if fhe fherifF have a parcel of the land
depending upon the fame title. Or if the fherifF or his under
fheriff* \vbicb returned the jury, be under the diftrefs of either
party, Or if the ftierifFor his under fherifF, be either of coun-
ftl, attorney, officer, or fervant of either party; or arbitrator in
the fame matter, and treated thereof. I Injl. 156.
And the citizen may challenge the array againft the common-
wealth; as in traverfe of an office, he that traverfeth may chaU
lenge the array: And fo it is in cafe of life. 1 lnjh 150.
And
JURIES AND JURORS. 283
And where a citizen may challenge the array, for urir.differ-
ency, there the commonwealth, being a party, may alfo challenge
for the fame caule. 1 7k/?. 156.
The array challenged on both fides fhall be quafhed. 1 In/I.
156.
2. Challenge to the array, for favor: He that taketh this mult
{hew in certain the name of him that made 'it, and in whofe
time, and all in certainty. This kind of challenge, being no
principal challenge, muft be left to the difcretion and confeience
of the triers. As if the plaintiff or defendant be tenant to the
fheriff, this is no principal challenge, but he may challenge for
favor, and leave it to trial. So alHnity between the fon of the
Iheriff, and the daughter of the party, or the like, is no princi-
pal challenge, but to the favor; but if the fheriff marry the daugh-
ter of either party, or the like, this (as hath been laid) is a pi in-
cipal challenge. 1 7k/?. i 56.
But where the commonwealth is party, one fhall not challenge
the array for favor, becaufe in refpedt of his allegiance, he ought
to favor the commonwealth more: 1 Inji. 15P.
By which feems to be meant that fuch challenge is not good,
without (hewing fooie adiual partiality in the fheriff. 2 Haw.
419.
But the commonwealth may challenge the array for favor.—
1 hft. 156.
Challenge to the polls is threefold:
1. Peremptorily. This is fo called, becaufe a perfon rr.av
challenge peremptorily, upon his own diflike, without flic wing
of any caufe.
But challenges for the commonwealth {hall not be peremptory,
but the profecutor for the commonwealth fhall affgn a certain
caufe wh:ch fhall be judged of by the court. See Jul. 6 of the
aft recited under title Criminals.
And this peremptory challenge is not allowable to the party
ugainff the commonwealth, except only in cafes of treafon or
felony, in favor of life. 1 Inji. 156.
By the common law a prrf.n foi treafon or felony might pe-
remptcrby challenge. 35. i infl. i£6.—But by the 8di fedtion
of the above law, the number is re drained to 24 in treafon; and
20 in murder or felony.
And if a perfon Band mute on his arraignment, or perfiff after
being admoiriihed by the court, in not aufwering to the indibf-
■ meat, or in peremptorily challenging above the number of jurors
which by law he may be allowed to challenge peremptorily, or
{hall be outlawed, he faail be cor.fidercdas ccnvi&ed, and receive
the fame judgment, <5cc. as on verdidi or confedion. See the
ih
a?.; JURIES and JURORS.
18lb fetlicn of the above law.
2. Principal challenge to the poll; where caufe is (hewn, but
which, if found true, ft-nd fufhcicr.t of itielf, without leaving
any thing to the triers.
Caufes of princ'pui challenge to the polls, are fuch as thefe.
Want of freehold, is a good caufe of challenge. I Injl. 156.
Alfoif a perfon is an alien. 1 Injl. 156.
If the juror be of blood or kindred to either party, this is a
principal challenge; for that the law prefumeth that one kinfman
doth favor another, before a ftranger; and how far remote foever
he is of kindred, yet the challenge is good. 1 Injl. 157.
Affinity or alliance by marriage, is a pricipal challenge, if the
fame continues, or iffue be had: otherwife, it is but to the favor.
I Injl. 157.
If the juror be godfather to the child of the plaintiff, or defer.-
dant, or they to his child, this is allowed to be a good challenge
in our books. 1 Injl. 157.
If the juror have part of the land that dependeth upon the fame
title, it is a principal challenge. 1 Injl. 157.
It hath been allowed a good caufe of challenge, on the part of
the prifoncr, that the juror hath declared his opinion beforehand,
that the party is guilty, or will be hanged, or the like. 2 Have.
418.
Likewife if the juror gave a verdidf before, for the fame caufe,
or upon the fame title or matter, though between other perfons.
1 Injl. 157.
So likewife one may be challenged, that he was indidlor of
the plaintiff or defendant in the fame caufe; for fuch a one it
may be thought, will not falfify his former oath. Lamb. 554.
And if a grand-juryman who was one of the indiclois of the
fame cauie, be returned upon the petit jury, and do not chal-
leoge himfeif, he fhali be fined. 2 ti. II 309.
If a jurcr hath been an arbitrator, chofen lay the plaintiff or
defendant in the fme caufe; and hath been informed thereof or
treated uf the matter, this is a principal challenge, other //if*, if
he were chefen indifferently by either of the parties. 1 Inji. 157.
If he be of counfcl, fervent, or of fee, of either party, it is a
principal challenge. 1 I a ft. 157.
Aifo, if a juryman, before he be fworn, take information of
the Cuf') this is caufe of challenge. 2 H. Li. gab.
If any, after he be returned, do eat or drink at the charge of
either party, it is a principal cauib of challenge. 1 Inf. 157.
But it is not a principle challenge to a juror, but only to the
favor, that the prcfecutor was lately entertained a: hi .> houie.—
tSalk. 81.
A
JURIES AND JURORS. 285
A&ions brought either by the juror againfl either of the par-
ties or bv either of the parties again ft him, which imply malice
or difpieafure, are caufes of principal challenge \ other a&ionu
which do not imply malice or difpieafure, are but to her favor*
1 Inji. 157.
If either party do labour the juror, and give him any thing to
give his verdi£f, this is a p incipal challenge j but if either party
labour the juror to appear, and to do his confcience, this is no
challenge at all, but lawful for him to do it. 1 Injh 157.—See
the penalty on a juror taking any thing for giving his verdidt, in
title Maintenance,
That the juror is a fellow fervant with either party, is no prin-
cipal challenge, but to the favor. I Inji. 157.'
If the juror be attainted or convicted of treafon or1 felony, or
to any offence to life or member, or in attaint for a falfb verdict,
or for perjury as a witnefs, or in a confpiracy at the fuit of the
commonwealth, or in any fuit (either for the commonwealth or
for any citizen) be adjudged to the pillory, tumbrel, of the like,
or to be branded or liigmutized, or to have any other corporal
punifhment, whereby he becometh infamous; thefe and the
like, are principal caufes of challenge, i Inji. 158.
So it is if a man be outlawed in trefpafs, debt, or any o»her
a&ion, for he is ex lex, and therefore not a lawful man. 1 Inju
158.
Challenge to the polls for favour. This is, when either party
cannot take any principal challenge, but Iheweth caufes of fa-
vour, which mutt be left to the confcience and difcretion of the
triers, upon hearing their evidence, t6 find him favourable or
not favourable. And the caufes ci favour are infinite. For all
which the rule of law is, that he mult itand inuifferent, as he
hands unfworn. I Inlt. 157.
//. When the challenge Is to be taken. '
No challenge is to be taken either to the array, or to the
polls, till a full jury have appeared. 2 Ihnv. 412.
He that hath divers challenges, muft take them all at cnce.
1 Inji. 158. *
If a juror be challenged by ore partv, and after be tried in-
different, it is time enough for the other patty to challenge him.
J InjL 158,
After challenge to the array, an 1 tri 1 duly returned, if die
fame party take a cha'Ienge to the polls, he mud (Lew caule
prefentiy. i Inji. 158.
When
LI
286 JURIES AND JURORS.
When the commonwealth is party, the defendant that chal-
lengeth for eauff, mmt fhew his caufe prefently, I Inji. 158.
But if a juror be challenged between party and party, and
there be enough of the pannel bcfides; the caufe of challenge
needeth net to be fhewed unlefs the other fide challenges touts
per avail. Tr. p. pais. 143.
• If a man, in cafe of treafon or felony, challenge for caufe,'
and he be tned indifferent, yet he may challenge hirh peremp-
torilv. I Infit 15b.
The prifoner muff take all peremptory challenges himfelf,
even in cafes wherein he may have counfel. 2 Haw. 413.
The challenge to the array, muft be in writing, but where
the challenge is to the polls, it is a fhort way by a verbal chal-
Itnge. Tr.p.pais. 172.
nit How the challenges Jhall be tried.
The challenge of him who firft challenged Ihall be hrft tried.
p. pais. 144.
If the array be challenged, it lies in the difcretion of the court
ho'w it fhall be tried ; fome times it is done by two coroners,
and ;ome times by two of the juty, with this difference, that
jf the challenge be for kindred in the fheiiff, it is moft fit to be
tried by two of the jurors returned; if the challenge found in
ftvour of partiality, then by any other two affigned thereunto
by til j court. 2 H. H. 275.
1 v hen any challenge is made to the polls, if it be before any
jirov" are fworn, the court fhall caufe the triers; if two are
fvw <n they (hall try; and if they try one indifferent, and he be
fworn, (hen he and the two triers fhali try another; and if ano-
ther be tried indifferent, and he be fworn, then the two triers
eeafe, and the two that be fworn on the jury fhall try the red:
if the plaintiff challenge ten, and the defendant one, and the
twekh is fworn, becaufe one cannot try alone, then fhall he ad-
ded to him one challenged by the plaintiff, and another by the
d( fondant. Fit.ch. 112. I lnfi. 158.
The hi' rr < ath is, Vou jhall well and truly try whither A 13,
(1 he jutyman challenged) Jtand indifferent bttznen the parties to
this ijjue \ jo help \ou Cod. I Salh 152.
if the caufe of challenge touch the difhonour or difcredit of the
jaior, he fhall not he examined on his oath; but in other cafes,
he fliall be examined on his oath, to inform the triers. I lnfi.
iff. .T Sa'h. 153.
If the ai ray be quaffed againfl the fheriff, the procefs of ve~
nire jaCias jure,tores fhall be directed to the coroners: if againft
any
JURIES AND JURORS. 287
any of the coroners, then procefs fhall be awarded to the reft j
if againft all of them, then the court fnnll appoint certain elilbrs
(fo named ah eligendo) againft whofe return no challenge (hall
be taken to the array, becaufe they were appointed by the court,
but he may have his challenge to the polls. 1 Inft. 158.
V. Of the demeanor of jurors giving in their verdict.
By the common law, the jury after hearing the evidence,
ought to be kept together in fome convenient place, without
meat or drink, fire or candle, and without fpeech with any un-
leis it be the {heriff, and with Him only except they be agreed.
I Inft. 227.
But by F. I. p. 108, 4 No flieriff*fljall converfe with a juror
4 but by order of court, after the jury have retired from the
bar.'
And if the jury after their evidence given to them at the bar,
do at their own charges eat or drink, either before or after they
be agreed on their verdict, it is fineabff, but it ftiaft not avoid
the vcrdidl; but if behve they be agreed on their viihi.ft th^y
eat or drink at the charge of the plaintiff, if the verdict be giv-
en for him, it {hall void the verdict, but if it be given for the
defendant it fnall not void it, and fo on the contiary. But if
after they be agreed on their verdidt, they eat or diink. at the
charge of him for whom they Jo pafs, it {hall not void the vir-
di£t. 1 Inft. 227.
But with the affent of the juftices they may both eat and
drink ; as if any of the jurors fall Tick before they be agreed on
their verdift, then by the affent of the juftices he may have meat
2nd orink, and alio fuch other hir.gs as be necefiury for hitii 2nd
His fellows aifo, at their own coils, or at the indifferent coils of
the parries, it they fo agree; and it they cannot agree, the juftices
ra.iy in fuch caie fuller the jury to have both meat and drink
for a time, to fee whether they will agree. Dr. & Si. *58.
/' iter their departure they may deftire to hear pne of the wit-
relies again, and it ihrdl be granted, fo he deliver his tcnirnony
in open court: and aifo they may defire to propound uueftions
to the court ior their fatisfadlion, and it lb all be granted, fo it
be in open court. 2 H. H. 296.
But if the plaintiff after evidence given, and the jury departed
frrm the bar, or any for him, do deliver any letter from the
plaintiff to any of the jury concerning the matter in iiiue, or
any- evidence, or any writing touching the matter in iffur, which
was not given in evidence, it ftiall avoid the verdict if found for
the plaintiff, but not if it be found for the defendant, and fo on.
the
288 juries and jurors.
the contrary.—But if the jury carry away any writing unfealed,
xvi ich was given in evidence in open court, this /hall not avoid
their verdict, albeit they fhould not have carried it with them.
I lnft. 227.
A jury fworn and charged in a capital cafe, cannot be dif-
charged (without the prisoner's content) till they have given a
veidibt. 2 Haw. 439.
If a jury fay they are agreed, and it being afked who fhall fay
for them, they fay their foreman, but upon further inquiry they
are not agreed, they may be fined. 2 H. H. 309.
if a jury cait lots for their verllidt, it fhall be fet afide and
they fhall be fined for their contempt. 3 Keb. 805. 2 Lev.
140.205.
But the court will refufe to hear the affidavits of any of the
jurors themfelves, to eftabliih the fabl of fucfr conduct. I Term.
Hep. 11.
M. 12 G. Hale & Cove. The jury having f3t up all nigh'-,
agreed in the morning to put two papeis'intoa hat, mailt plain-
tiff and defendant, and fo drew lots j plaintiff came out, and
they found fur the'plaint!ft, which happened to be acconhng to
the evidence, and the opinion of the judge. ' Upon mo:ion for
a new trial, it was agfeed that tne verdict he fet afide; but the
quetiion vias, whether the defendant fnould pay coils; the court
inclined to give the plaintiff cofts, comparing it to the cafe cf a
vcrdibt againft evidence; but at 1^1 it was agreed, that the cofis
fhould wait the evert of the trial. oVr, 642.
• The jury may give a verdibl witnout teflimony, when they
themfelves have cognifance of the fadt. Tr. p. pais. 279. 1
Ventr. 97, ' '
• But if they give a verdict on their own knowledge, they
ought to tell the court fo; but they'may be fworn as witnefles;
and the fair way is to tell the court before they are 'fworn tnat
they have evidence to give. I Sad. 405.
o For certainly it is of dangerous confequer.ee, to receive a
verdict againft evidence given, on fuppoftl that fome of the jury
knew otherwhe, or 011 private information given by any jury-
roan to the reft, where he cannot be crofs examined. Tr.p.
fa.s 209.—-By T. L p. ic8. c Jurors knowing any thing relative
to the point in ifiue, fhall difclofs the fame in open court/
After they be agre; d, they may in cafes between party and
pury, if the court be rifen,4 give a private verdibl, before any
pr the judges of the court; and then they may eat and drink;
the next morning in open court, they may either affirm or
filter their private verdidt^ and that which is given in court
fhall ftand. 1 Inlh 227.
* ' "Rnf-
JURIES AND JURORS. 289
But in criminal cafes of life or member, the jury can give no
private verdict, but they muft give it openly in court. 1 Inft.
227.
In all caufes, and in all adtions, the jury may give either a
general or fpecial verdidt, as well in caufes criminal as civil,
and the court ought to receive a fpecial verdidt, if pertinent to
the point in iiTue. 3 §alk. 373.
Thus if one be indicted for grand larceny, that is, forftealing
goods above the value of I2d. yet the jury may-find fpecially,
that he is guilty, but that the goods are not above the value of
12d, In wnich cafe he (hall only have judgment of petit lar-
ceny. 1 Haw. 95.
jurors are to try the fail, and the judges ought to judge ac-
cording to the law that arifeth upon the fadt. I Inft. 226.
But if they will take upon them the knowledge of the law
upon the matter, they may, yet it is dangerous, for if they mif-
ti*e the k;w, they run into the danger of an attaint; therefore
to hnd the fpecial matter is the fafeft way, where the cafe is
doubtful. 1 inft. 228.
But if (he jury find according to the direction of the judge,
in matter of law, altho' the judge be miitaken, yet the jury
fhall not be iiJole to attaint. L. Ray in. 470.
ir hath been adjudged, that if the jury acquit a prifoner of an
indictment of felony aguinft mamfeft evidence, the court may,
before the verdict is recorded, but not after, order them to go
out again, and re coniider the matter; but this by many is
thought hard, and feems not of late years to have been fo fire-
tjuently pradtffd as formerly. However it is fettled, that the
court cannot fet afide a verdidt: which acquits a defendant, of a
prcfecution properly criminal, as it feems that they may a
verdict that convicts him for having been given contrary to evi-
dence and the direction of the judge, or any verdidt: whatfoever
for a miltrial. 2 Haw. 442.
Afier the verdidt refolded, the jury cannot vary from it;
but before it be recorded, they may vary from the firft offer
of their verdidt, and that verdidt: which is recorded (hall {laud*
J inft. 227.
A verdict finding an impoffible matter (hall not be void, if •
at the fame time it find tne fubftance of the iudidtment; but the
furplus fhall be rejected. 1 Haw. 77.
Verdidts (hall not be taken io firidtly as pleadings; but
the fubllance of the thing in iffue ought to be always found. 3
Salk. 373.
It is faid, that if the jurors agree not, before the departure of
the juftices of jail delivery into another county, the Sheriff' mail:
fend
290 JURIES AND JURORS.
fend them along in carts, and the judge may take and record
their verdicts in a foreign county. 2 H. H. 297. Tr. p. pais.
274. 285. 1 Vent. 97.
But if the cafe fo happen, that the jury can in no wife agree,
as if one of the jurors knoweth in his own confcience, the thing
to be falfe, which the other jurors affirm to be true, and fo he
will not agree with them in giving a falfe verdidb, and this ap-
peareth to the juftices by examination; the juftices (as it feem-
eth) in fuch cafe may take fuch order in the matter, as fhdl
feem to them by their difcretion to (land with reafon and con-
fcience, by awarding a new inqueft, or otherwife, as they fhill
think beft by their difcretion, like as they may do, if one of the
jury die before the verdidL Dr. & Stud. 158.
Grand jurors fhall prefent freeholders for not voting at clec-
liens. V. I. p. 23. § 6.—And the aft to be given in charge.
VI. Of the indemnity and pimifhment of jurors.
If a man aftault, or threaten a juror, for giving a verdift
againft him, he is highly punifhable by fine and imprifonuvnt;
and if he ftrikes him in the court, in the prcfence of the judge
of of affize, he ffiall lofe his hand, and his goods, and profits of
his lands during life, and fuffer perpetual imprifunment. i Haw.
57> 58.
Where more than one of the perfons returned upon a jury do
appear, but not a fufficient number to take an inqueft, and lb me
of the others come within view of the court, or into the fame
town in which the court is holden, but refufe to come into the
court to be fworn; upon proof of fuch matter, the court rnaj,
at the prayer of the parties, order the jurors who appeared, to
enquire what is the yearly value of fuch defaulter's land";, and
after fuch inquiry made, either fummon thern to appear, on
pain of forfeiting fuch fums as their lands have been f unid to he
worth by the year or fome lefler fum, or impofe a fine of the
like fum upon them, without any farther proceeding. But it
lee'ms, that fuch juror Ihail be liable to lofe his iftues only for fu:h
default, and not the yearly value of his lands, unlefs the party
pray it: But a juror who hath actually appeared, and after
makes default, is ft id to be fubject to fuch forfeiture of the yearly
value of his lands, whether the party pray it or not} bccaufe his
contempt appears to the Court by its own record ; yet even in
this caie, the court in difcretion will fometimes only impofe a
I mall fine. Alfo it feems, that a juror who makes default with-
out ever coming into the town wherein the court is holden, is
liable
JURIES AND JURORS. 291
liable only to lofe his ifTues, or to be amerced, but not to be
fined. 2 Haw. 146.
If the grand jury at the affizes or fi Averts will not find a bill,
the court may impannel another inqvA 'b 7 H. 7. c. 1.)
to inquire of their concealments, and met cup m fiet fines upon
them: But it feemeth that fines fet upon grand inquefts in any
other manner, are not warrantable by law; for the pri ,'ilege of
a citizen of the commonwealth is, that his life (hail not be drawn
in danger without due prefentment or indictment, and this would
be but a flander fcreen or fafe guard, if every junie rf the peace,
or judge of afiize, may make the grand jury prefeut what he
pleales, or otherwife fine them. 2 II. H. 160, i.—But the
above ftatute is not now in force in this country. See V. /. p.
302.
It feems to be certain, that no one is liable to any profecutiop
whatfoever, in refpe£t of any verdidt given by him in a criminal
matter, either upon a grand or petit jury; for fince the fafety of
the innocent, and punilhment of the guilty, doth fo much de*.
pend upon the fair and upright proceedings ofjurois, it is of the
utmoft confequence, that they fhouid be as little as poflible un-
der the influence of any paflion whatfoever. And therefore, left
they fhoulil be biafed with the fear of being hsrrafied by a vexa-
tious fuit, for adding aecording to their confcience, the law will
not leave any poflibility for a profecution of this kind. And as
to the obje&ion, that an attaint lie againft a jury for a falfe ver-
didt in civil caufe, and that there is as much reafon to allow of
it in a criminal one; it may be anfwered, that in an attaint in
a civil caufe, a man's property is only brought into queltion a
fecond time, and not his liberty or life. 1 Haw. ,191. L. Raym.
4-69
But where the jurors give a falfe verdidl upon an ifiue joined
in any coutt of record, and judgment thereupon, the party
grieved may bring his writ of attaint. Upon which 24 of the
bell men of the County are to be jurors, who aie to hear the
lame evidence which was given to the petit jury, and as much,
as can be brought in affirmance of the vertiiof, but no otiwr
againlt ir. And if theie 24 wlio are called the grand jury, find
it a falfe verdief, then followeth this terrible judgment at the
common law upon the petit jury; that the party ihali be infit-
mcus, fo as never to be received to be a witntfs, or a juror;
ihafl forfeit his goods and chattels; and his lands and tenements
fhaM be taken into the commonwealth's hands, his wife and
children cafe out of doors; his hoefas pro.Trated ; his trees
rooted up; his meadows ploughed up; and his body imprilBncd.
And feeing ail trials of real, pcrfona., and mix: ahlions depend
upon
292 JURIES and JURORS.
upon the oath of 12 men, prudent antiquity infli&ed a fevere
and ftrange punifhment upon them, if they were attainted of
perjury. 1 In/L 294. Read. Jnr.
But this proceeding feems to be entirely difufed at this day,
and in the place of attaint, motions are now ufualiy made for
new trials, when a verditft: is againft evidence. IVouJi. b. c. 4.
Read. Jur.
It feems to be the current opinion of the old books, that ju-
rors are not fubjeft to any profecution for a falfe verdicft, except
by way of attaint; and there feems to be very few ancient pre-
cedents for the purifhment either for grand or petit juies, merely
for giving a verdift againft evidence, or the direction of the
court, either in a capital or civil matter. 2 Hair. 147.
And the fining and imprifoning of jurors for giving their ver-
di<ft, hath feveral times been declared in parliament an illegal
and arbitrary innevation, and of dangerous confequence to the
government, and the lives and liberties of the citizens. 2 Keb.
180. Read. Jur.
And in Bufhel's cafe, it was refolved by all the judges, upon
a full conference together, that a jury is not fineable for going
againft their evidence, where an attaint lies. And where an
attaint doth dot lie. L Vanghn fays thus; 4 That the court
4 could not fine a juryman at the common law, where attaint
* did not lie, I think to be the cleared: pofition that ever t con-
4 fidered, either for authority or reafon of law.' And one reafbn
for this is, becaufe the judge cannot fully know upon what evi-
dence the jury give their verdicft; for they may have other evi-
dence, than what is {hewed in court; they are of the vicinage,
the judge is a ftranger; rhev may have evidence from their own
perianal knowledge that the witnefs fpeak falfe, which the judge
knows not of; they may know the witneffes to be ftigmatized
and infamous, which may be unknown to the partie's or court.
And if the jury know no more than what they heard in court, and
ard fo the judge knew as much as they, yet they might make
different conclufions, as often times two juJges do; and there-
fore as it would be a ft range and abfurd thing, to punifh tie
judge for differing with another in opinion or judgment, lb it
would be worfe for the jury, who are judges or the fadt, to he
punilhed for finding againft the direction of him '«ho is net judge
of the fadh Tr. per. pais 224. LVaugh. 135.
And to fay the truth fajs lord Hale, it would be the m.oftun-
happy crfe that could be to the judge, if he at his peiil muff take
upon him the guile or innrcence of the prifonerf and if the
judge's opinion muft rule the matter cf fad*, the tiLl by jury
would be ufelefs, 2 H. H. 315.
But
j U R 1 E S AND j U R O R S. £93
But what if a jiiry gave a vcrdifl ?<rdnG: all ceafon, eonvidl-
ing or acquiring a perfon indidled of felony, whatffiall be done.7
If the jury cohvifi a man, againit or without evidence, and
ngainft the direction cf the court, the court may reprieve him
before judgment, and acquaint the executive, and certify for
his pardon; if the jury acquit him in file manner, the court may
fend them back, again (and (A in the former cafe) to confiTr
better of it, before they record the verdict; but if they are pe~
remptory in it, and (tand to their verdift the court mull take
their verdiR and record it. 2 H. H. 309, 310.
By V. /. p. 108. 1 Any juror guilty of a contempt to the
5 court, may be fined by fuch court in any fum not exceeding
4 thirty dollars.'
A grand juror failing to attend, on being fummoncd, may
be fined not exceeding eight dollars. F. L p. icy.
4 Grand jurors fhall be pnvi'eged from arreil mail cafes, cx-
4 cept treafon, felony and breaches of toe peace, dunng their at-
4 tendance at court, corning to and returning from thence, ai-
4 lowing one day fo? every twenty miles from their places of
4 abode, and ail fuch arreits fhall be void.' F. /. p. 107.
4 No grand jury fhall make prelentment of their own know-
4 ledge, upon information of fewer than two of tiv-ir own bodyi
4 nor in the diuriet courts, where thcr(pe:ialty indicted by law,
4 is lefs than five dollars, or two hunuted pounds of tobacco,'
V. I. p. 107.
Challenge to the array, because the fberiff is of kin-<
dred to one of the parties; from Coke's entries„
And now at this day to wit-—came the aforefaid A, the
plaintiif, and B, the defendant, by their attorneys, &nd the ju-
rors were impanelled and demanded, and came, and thereupon
the aforefaid B, challengeth the array cf the panel aforeudd, be-
caufe he faid that that panel was arrayed by one John Zouch,
now and at the time of making the array aforefaid,' {fierifT of the
county of Derby, which laid fheriff is a kinlmau of the afomfaid
J( hn Manners (the plaintiff) to tvir, the fon of George Zouch
ekpiire, the fon of John Zouch, knighfj the fon of [ofon Zouch
elquire, the fon of William Lord Zouch, the fon of Alan Lord
Zouch, the fon of William Lord Zouch, the fon of K'izabeth
daughter of William Lord Roos, ihe father of William Lor !
Raos, the father of Thomas Lord Rocs, the fa'her of Elener,
mother of George Manner*, knight, the fa-her cf Thomas Earl
fef Rutland, the lather of the aforefaid John AJanners. Anl
this
M m
294 JURIES AtoD JURORS.
this he is ready to verify, whereupon . he prayeth judgmenf,
that the faid panel may be quathed.—Which faid challenge by
, and by triers, to this fworn and chofen, is found
true. And therefore let the panel aforefaid be quafhed and
amoved, See. Tr. per. pais. 160.
Challenge because the panel was returned at the
injlance of the party.
And upon this, the faid challenges the array of the faid
panel, becaufe he fays, that that panel was arrayed by one J S,
efq. late fheriff of the county of aforefaid, at the nomina-
tio.n of the faid and in his favour; which faid challenge
by triers thereof fworn, is found true.
For other forms of challenges, and proceedings thereupon,
lee Er. per. pais. 159—184.
Juftifiable Homicide. (See HOMICIDE.)
Landlord & Tenants. (See RENTS.)
Land-Office. Counterfeiting the feal of the regider cf,
(See FELONY.J
l>and-Warrants, Stealing them. (See FELONY.) ,
LARCENY.
LARCENY, ovtheft^ by contraction for latrociny, latroce-
n'tum, is diftinguiihed by the law info two'forts;' rthe one
■culled jimple larceny, or plain theft unaccompanied with any
other atrocious circumftance; and mixed or compound larceny,
which alio includes in it the aggravation of a taking from one's
houfe or peifon. 4. Blacks Com. 129. 1
Simple larceny is alio generally divided into two kinds,—grand
larceny, when the thing ttelen exceeds the value of I2d. and
petit larceny, when it is of that value or under. It may,
however be well doubted, how far this divifion of fimple larceny
into gran I) anJ petit is now to be cbnfidered as obligatory on
us; cs it was fo declared by the ilatute of 3 Edw. 1. (fee 2
hijl. 189, 192.) which- has no force or authority 111 this com-
tnonwealth, See I. (17 R. Cond. 1792. c. 147. § 3.) page
This mult, however, be obferved uprni all larcenies,
t.iat siow by V. I. (14 R. Cond. 1789. c. 47. § 4 ) page 5*.
the benefit of clergy lhall be allowed in all offences, which
would
LARCENY. 295
would otherwife be without clergy, whether the fame be newly
created by any of Aflembly, or exill under the common
Jaw, unlefs it be taken away by the exprefs wprds of feme act
of Aflembly. See title 4 Clergy/
Under thefe reftrjdtions, I fhall treat of larceny as it is ufually
.divided,
I. Grand Larceny.
II. Petit Larceny.
' IIL Larceny from the person.
IV. Larceny from the house.
I. Grand Larceny,
Grand Larceny, is, a felonious and fraudulent taking end
Carrying away, by any perfon, of the mere perianal goods cf
another, above the value of I2d. 1 Haw. 89.
Felonious and fraudulent] Felony is always accompanied with
an evil intention, and therefore fhali not be imputed to mi flake
or mifanimadverfion; as where perfons break open ^ doer, in
order to execute a warrant, wnich will not jufiify inch a pro-
ceeding; for in fuch cafe there is no felonious intention, I flaw.
65\ ... .
For it is the mind that makes the talcing of another's good to,
be felony, or a bare trefpafs only} but bccaufe the variety if
circumftanees is fo great, and the complications thereof fo
mingled, that it is impoflible to prefcribe all the circumllarces
evidencing a felonious in tent, or the contraiyj the fame niuit
be left to the due and attentive confidorauon of the judge a ti l
jury, whciein the belt rule is, in dcubtful matters rather tto in-
ciine to acquittal th in conviction. Only in gtneral it may be
oblcrvcd, that the ordinal y difcovery cf a fd' nious intent is, if
the parry doth it fecretly or being charged wiai the goods denies,
it. i H. H, 509.
But r.evertLUcfe, doing it oneidy and avowedly, dct'n r.ct ex-
cufe Irorn felony. bo where a man cams to Smijf.eld mar lot
to L-il a hoife, and a jockey coining thither to buy a horfq the
owner delivertd his horfe to the jockey to ride up ard down the
market£0 try his paces, but instead cf that, the jockey roue
away with the horfe, which was aujuclged kiony. Ket. 82.
bo where a perfon came into a iempflreis's lfii p, and cheap-
ened goods, and ran away with the guocs out of the fhep, open-
ly, in her Bght, this was adjudged so be niony. Raym..276.
So
296 L A Pv C E N Y.
So where a man'comes into a houfe, by colour of a writ of
execution* and carries away the goods; or fues out a replevin
to get another man's horfe, and then runs away with him; that
is felony under colour of law* 2 Fjntr. 94. Ktl. 83.
T Taking Ail' felony includes trefpafs, ana every indidlment
mult have the words felanloujly took, as well as carried away.
, from whence it follows, that if the party be guilty of no tref-
pafs in taking the goods, be cannot be guilty in felony in carry-
ing them away. 1 Haw. 89.
Auid from this ground it hath "been holden, that one who
finds the goods which I have 16ft and converts them to his own
ufe, with intent to fteal them, is no felon ; and a fortiori there-
fore it mult follow, 'that one who has the actual polielfionof
my goodj by my delivery, for a fpecial purpofe, as a carrier who
'receives them in order to carry them to a cextuin place: cx- a
taylor who has them in order to make me a fuit cf deaths; or
a friend who is intruded to keep them fur my ux'e, cannot be
faid to ftej them, by embezzling-of them after»vards. 1 lhvj%
**9- . , \ .
But yet it hath been refolved that if a carrier opens a pack,
and take? but part bf the goods ; or a weaver, who has received
Yilk to work, or a miller who has corn to grind, take out part
thereof, with intent to ileal it—it is felony, 1 Haw. 93.—See
1 Haivk. (6 ea\) 135, note (r)
So where a man's goods is in fuch a place, where ordinarily
they1 are 01' m£y bef lawfully placed, and a perfon take thern,
with'Intent to ileal them, it is felony; and the pretence- of find-
ing mult not excuiov 1 H. H. 506. k <
Po if a man's hone be going upon a common where' he has a
jight to pu? him, and another cake th<L- horfe with intent to fteal
hini, it is*no finding, but a fcluiiy.— £ H. By 506.
• S'u aifo if the horfe ftray info a neighbour's ground or com-
moii, it is felony-in hint that fo takes him. But if the owner
6f the ground takes him doing damage or feiie him as a ftray,
though pexchancf he hath no title fo to do " Yet _tuere is not a
felonious intention, and therefore cannot be felony. 1 H. H.
506, ' ' •
It one man's ftieep ftray into another man's Hock, and that
other perfon diives it along with Ins flock, or by bare miftake
Shears it, this taking is not a felony; but if he knows it to be
another's and marks i: with his mark? this is an evidence of fs-
kn>. 1 H. H.'5C>7,
Lotd tlale fays, If one man takes another man's hay or corn,
and mingle it with his own heap or ftock; er take another man's
cloth and embroider i: with filk or gold; fuch other perfons may
retak?
L A R C E N Y.
-97
letake the whole heap of corn, or ftock of hay, or garnfont, and
embroidery alfoj and this retaking is no felony, nor fo much as
a trefpafs. J H. H. 513.
It feems generally agreed, thdt one v/ho has the bare charge,
or the fpecial ufe of goods, but net the poffeffion of them ; as a
ihepherd who looks after my fheep, or a butler who takes care
of my plafo, or a fervant who keeps a key of my chamber, or a
gueft who has a piece of plate let befoie him in an inn, may„be
guilty of felony in fraudulently taking away the fame. 1 Haw.,
9°- .
And carrying away] To make it come within this difenption, it
feemeth that any the leafk removing of the thing taken from the
place where it.was before, is lufiicier(t tor this purpofe, though
it be not quite carried off: and upon this ground, the gueifc,
who having taken oif the fheets from his bed, with an intent to
Ileal th'.m, carried them into the hail, and was apprehended
before he could get out of the houfe was adjudged guilty of lar-
ccny: So alio was he, wfeo having taken an horfe in a elote,
with an intent to Ileal him, was apprehended before he could
get him our of the clofe. 1 Haw. 93.
By a"/ per/on] A wife may be guilty thereof, by healing the
goods of a ilranger; but not by fteuling the goods cf her fcui-
band 1 Haw. 93. ■
It is faid hy Air. Dalton and others that it is no felony for one
reduced to extreme neqelhty, to take fo much of anothei's vie-
foals, as will lave him from itarving; but lord Hale lays, that,
tifih rule by the law of England is faiie; and therefore that if a
pcrfun being under neceffity for want of victuals or clothes, fleals
auoiber man's goods, it is felony. 1 H. H. 54.
If one dealttli another man's goods, and afterwards another
ilealeth the fume from him; the owner may charge the firft of
lecond felon af his choice. Halt. c. 162.
An alien, whole fovereign is in amity with the United States,
reading here, and receiving tqe protection of the law, oweth a
local aLegiance. to the government during the time of his refi-
rience, and if, during that time, he committeth an offence, he
foall be liable co be punilhed for the fame, even as a natural born
citizen, for his perfon and petfonal ellate are as much under
the protection of the law, as the natural born citizen, and if he
is injured in either, he hath the fame remedy law for fuch in-
jury. Fo/L 1S5.
So alfo, an alien whefe fovereign is at enmity vvi'h us, living
here under the commonwealth's protection, committing nff.m-
pes, may be proceeded againft in like manner; for he oweih a
temporary local allegiance, founded on that (hare cf protection
fee receivtth, /V, 11 bo
L A K C E N Y.
So aho a prifcher of war, although he is not'properly fubjedt
to the municipal laws of* this country. Yet if he commits any
offence againft the law of nations, or the light of nature and the
fundemental laws of all fociety, he is liable to anfwer in the or-
dinary courfe of judice, as another perfon's offending in like man-
ner are. As in the cafe of Peter Molieres^ a French pi ifoner,
who was indifted at the jail delivery for the city of Brijlol> in
Aitguji 1758, before Sir Michael Fo/ler, for privately dealing
in the drop of a goldfmith and jeweller, a diamond ring, valued
at 20I Sir Michael fays, he thought it highly improper to pro-
ceed capitally upon a local ftatute,4 againit a prlfoner' of warj
and uierefofe advifed the jury to acquic him of the circumdance
of dx-aling in the (hop as by the ftatute, and find him guilty of
fimp'e larceny *\> the value laid in the iudidlment- Accordly, he
was burnt in the hand, and feat to the pfifon appointed for
French prifouers. id. iSS.
Of the mere perfonal goods'] ?,'hre\ for if the perfonal goods
favottr any thing of the reality it cannot be larceny. And there-
fore they ought to be no way annexed to the freehold, therefore
it is no larceny but, a bare tiefpaf>, to deal coin orgrafs grow-
ing, or apples on a tree; but it is larceny to take them, being
fevered from the freehold, as wood cut, grafs in cocks, dones
digged out of the quarry; and this, whether they are fevered by
the owner, or even by the thief himfelf, if he lever them at one
time, and then come again at another time and take them. 1
Raw* 93* 1 H. H. 510.
Alio the goods ought to have forne worth in themfelves, and
mot to derive their whqle value from the relation they bear to
lorne other thing, which cannot be itclcn; as paper or parch-
ment, on which are written affurances concerning lands, or ob-
ligations, or covenants, or other lecurities for a debt, cr odaer
cicfc in action. 1 Hc:iy, 93.
But by F. I (14 R. Cond. 17S9. c 46) p. 50. it is enabled,
4 That if any record, or parcel of the fame, writ, return, panei,
4 procefs, or warrant of attorney, in any court within this com-
4 men wealth; be willingly dolen, taken away, withdrawn, or
4 avoided by any clerk, or by any other peifon, becaufe whereof,
6 any judgment Ciall be reverfed, fuch dealer, taker away, with-
4 drawer, or avoider, their procurers, counfc-llors and abettors,
4 being thereof indiited, and duly convidteJ, by .their own con-
4 fedicn, or by inqueft to be taken cf lawful men, fhail be judged
4 for felons, and dull incur the pain of felony.'
And by V. L (17 R. Cond. 1792. c, 133. § 6) p. 261. 4 He
4 or fhe fhall be adjudged a felon, and not have the benefit of
5 clergy, .who ihail deal, or by other means take from the pof-
4 fefii on
LARCENY. 199
4 Feluon or cuflody of another, any warrant from the rcgiflcr. of
* the land-office of this commonwealth, [to authorife a furvey of
4 waile and unappropriated lands.'
Alio, by V. /. (17 R. Cond. 1792. c. 133. § 7) p. 26r»/ He
* or ffie ihall be adjudged a felon and not have the benefit,of
1 clergy, who fhall fteal, cr by robbery take from the pofieffion
4 or cuftcdy of another any loan-office certificate of the United
4 States, or any of them, or any warrant of the governor or other
4 perfon exerciling that function, or any certificate of the auditor
4 for public accounis to the treafurer, authoriiing the payment of
4 money, or final! prefent, ar caufe to he prefeuted, fuch loan-of-
4 fice certificate at a loan-office of the United States, or any of
4 them, for the difcharge of the whole, or anv put thereof, or
4 fuch warrant or auditor's certificate at the puh'ic trcafury, for
4 the payment thereof, knowing fuch loan-office certificate,
4 or warrant, or auditors certificate to(have been Holer., or bv
4 robbery to have been taken from the pc fkffion or cuilcdy of
4 another.'
The goods ought alfo not to be things cf a bafe nature, as
dogs, cats, bears, foxes, monkeys, ferrets, and the like, which
howfoever they may be valued by the owner, fhall never be fo
highly regarded by the law, that for their fakes a man-ihall die:
,but yet the ftealing of an hawk, knowing it to be reclaimed, is
felony by the common law, and by fiatute, in refpeef of that
very high value which was formerly fet upon that bird, 1 Haw.
93-
Of another] It feems agreed, that the taking of good, whereof
no one had a property at the time, cannot be felony; and there •
fore that he who takes any treafure trove, or a wreck, waif, or
ftray, before they have been fuzed by the perfon who have a
right thereto, is not guilty of felony, but fhall be punifhed by
fine. 1 Haw. 94.
But yet the taking of thefemufi: be, v^nere the party that takes
them, really believes them to be fuch, and colours not a felcni-
ous taking under fuch a prcer.ee; for then every felon v/caid
cover his relony'under that pretence. I H. H. 506.
Neither fhall he who takes fiffi in a river or other greot wa-
ter, wherein they are at their natural liberty, be guilty of fblonv;
as he may be, who takes them cut cf a trunk or pond. 1 Haw.
94-
Upon the like ground it feems clear that a man cannot com-
rr.it felony, by taxing hares or conies in a warren, or old pig"-
ons being out of the houfe; but it is agreed, that one may com-
mit larceny, by taking fuch or any other creatures force naturae»
if
L A R C E N T.
if they fit for food, and reduced to tamcnefs, and knoivn kjf
hiv. i o fo. i flaw. o\.
biio it is fa'd, that there mav be felony in taking goods the
wvner where A is unknown; in which cafe the com rr on wealth
(hall have the good;, and the '-(Tender Ibail be indlcied for tak-
ing the good.-, of a p.rfon u»-known; a ad it fee^-, that in feme
cates the law wid rather feign a po/.rty, wlwrc in ftrichaefs
there is none, than fuffer an ohere.: to elenne. I Haw. 94.
He who {leak goods belonging to a pariih church, maybe
indicted for fbaling the goods of the prjlhiionerc. j Haw. gp
And it hath been adjudged., that he who tabe: off a fnroud
from a dead corps, may be indicted as hazing ltnlen it from him,
who was the owner thereof when it was put 0:13 for a dead man
can have ino property. 1 Kaiv. 94.
Above the value of I'V.'.J 1 he learned editor tf Hale's hi (lory
of the pleas of the crcwn obfervts, that in former times, though
the punifhmenC bf theft was capita!, yet the criminal was pef-
mitted to redeem his life by a pecuniary ranfom, but in the 9
H. I. it was enadbed that whofoevcr was convidled of theft
(hould be hanged, and the liberty of redemption was entirely
taken away; which law continues to this cay, but coniiiering
the alteration in the value of money, the feverity is much grea-
ter now than it was then; for I2<h would thenpurchaf^as much
as 40s; will now. And yet a theft above the value of I2d. is
{fill liable to the fame puni&menti Upon vrhich Sir H.'Spel-
man juuly obferves, that while all things elfc havre rilen in their
value, and grown dearer, the life of man is become much cheap-
er; fcand from thence take occafion to with, that the ancient
tendernefs of life were again reftered; i H. H. 32.
And lord Die, obferving that when the flatute of the 3 Ed.
I. was made, which makes dealing cf goods above the value
of I2d. to he grand larceny, the ounce of fdver was che value of
20d. and now it is cf the value of 5s. and above, draws the con-
cluiion, that the things ftolen ought to he reafonably valued,
that is, having refpecl to the great alteration in the value of mo-
n< y- 2 ln/l\- 189. 190. For 20s. were then a real pound weight;
which name tve xi ill retain, shho' the weight is much ciminiined.
If tvv> per fens or more, together, Heal gocds above the value
cf 12(1. every one of them is guilty of grand larceny; for each
p;rlbn is as much an offender as if he had been alone. 1 Haw. 95.
Alfo it feems the current opinion of ail the old hook , that if
one at lcveral times (teal leveral parcels of goods, each under the
value of 12(1. bu: amounting in the whole to more, from the
is me perfon, and be found guilty thereof on the fame iiimormcnt,
he fhatl have judgment of ueath as for grand larceny; but fits
L verity is feldom pradtifed. 1 Haw. 95. II.
larceny.
II. Petit larceny.
Petit larceny agrees with grand larceny in fevcal particulars!
above mentioned, except only the value of the goods (and except
as hereafter Followed.) fo that v/here ever an offence would
amount to grand larceny, if the things llolen were above the
value of 12d. it is petit larceny, if it be but of that value or im-
der. i Ilaw. 95.
And if one be indi&ed for ileal;ng goods to the value of ios.'
and the jury find fpecially, as they that he is guilty, but
that the goods -are worth but tod. he fhall not have judgment of
death, but only as for petit larceny. 1 Haw. 95.
In petit larceny there can be 110 accelfaries, neither before
nor after. 1 H. H. 530.
For a juftice of the peace, before whom an offender (hail be
brought for petit larceny out of feiiions, may not punifh the laid
offender by his dilcretion, and fo let h'irn go; but mail have
him committed or bailed, to the intent he may come to his trial,-
as in cafes of other felonies: and if upon his trial, the jury Hull
find the goods ftolen to exceed i2d. in value, the offender ihali
have judgment to die for the fault* Dalt. c. 154.
It feemeth, that all petit larceny is felony, and confequently
requires the word feionUujlv in ah indictment for it; yet it is
certain, that it is not punifhable with the lofs of life or lands
but only with the forfeiture of goods, and whipping, or other
corporal punimment* 1 Haw. 95.—See 4 Forfeitures
III. Larceny from the person.
Larceny from the perfon of a man either puts him in fear, and
then it is called robbery; or does not put him in feaf, and theri
it is called barely larceny jrom the perfon. 1 Hawk. 147. See ii~
tie4 Robbery,'
IV. Larceny firom the house.
This is to be underflood where the offence fails fhort cf,
1 Burglar yf which fee.
Some cf the offences in dealing from a house have already
been noticed, among the feveral cafes enumerated under lid.:
4 Clergy f [benefit of) which fee.
By V. I. (17 R. Cond. 1792, c 109. § 2) p. 216. 4 All and'
* every perfoh and perfons, that Hull at any time, either in the
- r.i5ht. -
K n
larceny.
4 night or the day, felonioufly break any warehoufe or {tare-
4 hoi'fe, and {hall take therefrom any money, goods, or chattels,
4 wares or merchandizes, of the value of four dollars or more,
4 altho' the owner of fuch goods, or any other perfon or perfons,
4 be, or be not in fuch warehoufe, or ftorehoufe, or {hall aid,
4 aiiift, counfel, hire, or command any perfon or perfons fo to
4 break and rob any fuch warehoufe or ftorehoufe, and {hall be
4 thereof convicted or attainted, or being thereof indifted, {hall
4 {tand mute, or will not anfwer diredfly to the indiftment, or
4 fhtll peremptorily challenge above the number of twenty per-
4 fons returned to be of the jury, {hall, by virtue of this aft, be
4 abfolutely debarred of, and from the benefit of clergy '
The offence of receivingjlolen goods, is confidered under title
4 /iccejforyf which fee.
(jf) Warrant for Larceny.
county to wit.
To the conftable of the faid county.
IVhcreas A J, of in the county (f yeoman, hath
this day made information and complaint upon oath before me
one of the commonwealth*$ juflices of the peace for the faid countf,
that this prefent day divers goods of him the faid A J, to wit
hfpvs felonioufly been flolen, taken and carried away from the houfe
of him the faid A J, at aforefaid in the county aforefaid,
and that be hath jufl caufe to flfpeft, and doth Jufpefl, that A 0,
late of yeoman, felonioufly did flea], take, and carry away
tt-e fame: Thefe arctheref ore to command you forthwith to ap-
frehend him the faid A O, and to bring kirn before me to anfwer
unto the faid information and complaint, and to be further dealt
with according to law: Herein fail you not. Given under my
hand and jeal the day of in the year
Note\—The form of a warrant to feaich for ftolen goods is
inftrted under the title Search icarrant,
(BJ Indictment for grand or petit larceny in general.
cour-ty to wit.
1he jurors &c. upon their oath prefent, That A O, late of
in the county of labourer, on the day of
in tie year of the comrnonzvealth, with force and
f'7rs at in the county aforefaid, one linen fhset of the value
of _ cf the goods and chattels of one 'A J, then and there being,
fe. -nitoufy did jieal, take and carry away, again/} the peace and
dignity cf the csm;:io:iwcakn.
(C)
L A R C E N Y. 503
fCJ Itidici merit for breaking a house in the day
time> some person being therein.
county to wit.
The jurors &c. upon their oath prejent, That A O, late of
in the county of labourer, on the clay of
in the year of the commonwealth at the hour oj
in the afternoon of the Jame day} with force and arms at
in the county of the dwelling houfe of one A J, there ftur
ate (one B J, wife, of the fold A J, in the fame houfe, in the peace
of God, and of the commonwealth then being) felonioufy did break
and enter, and one fi.ver Jpoon of the value of of the goods
and chattels of him the faid A J, then and there felonioufy did
fealy takey and carry away* and her the faid B J, then and there
in bodily fear and danger of her ///<?, felonioufy did put j againjl
the peace and dignity of the commonwealth,
fDy Indfflment for breaking a houfe in the day
time, (no perlon being therein )
county to wit.
The jurors &c. upon their oath prefeaty that A O, late of
en the day of \n the year of the commonwealth
at the hour of in the afternoon of the fame dayy with
fr ee and arms at in the county aforefaidy the dwelling
houfe of one A J, there finale, feionfnjly did break and enter, and
one fiver jpoon of /- e value of of the goof s and chuiteh of
Vim the yfd A J, then and there felonioufy did fealy tt ke and
curry uj.ay\ againjt the peace and dignity of the commonwealth
• fEj Indictment for breaking a warehoufe or- *
itorehouie, and iteaiing thereout above;
the value of ^ dollars,
county to wit.
The jurors for the commonwealth upon their oath do prefenty
That A O, late cf in the county of aforebnd, la-
bourer, on the day of in the year and in the
year of the cornmomvcal'h, with force and arniSy at
in the county aforefaid, tfe forchoufs of oi.e A J, there fit note,
felonioufy did break and enter, and one mrce of cloth (commonly
called cloth) of a black coloury of the value of twenty dol-
larsy .of the goods and chatties of him the faid A J, in the fore-
houfer
304 LARCENY.
l ovfe of him ibe faid A J, then and there leing found, then and
there privately and jeloniovfty did' feal, take and carry away y
againjl the peace and dignity of the commonwealth.
LEWDNESS.
t\ LTHOUGH Lewdnefs be prcperly pur.ifhable by the ec-
cltfiaftical law? yet the offence of keeping a bawdy houfe
cotneth under the cognizance of the law temporal, as a common
nuifance, not only in refpect of its endangering the public peace,
by drawing together difiblute and debauched perfons, but a Ho in
rdpect of its apparent tendency 10 corrupt the manners of both
1 xes. 3 Inf. 205. 1 Haw. 96.
And, in general, all open ie.wdnefs grefsly foandalous, i; pu-
rufhaHe upon indidiment at common law. 1 Hawk 7.
Offenders of this kind are puniihable not only ivi'.h line 2nd
impiifonmeut, but alfo with fuch infamous punjihrnent as to
the court, in difcrerion, fhall feem proper. 1 Hawk. 96.
And upon information given to a cpnftab'e that a man and
woman are in adultery, or fornication, together, or that a man
and woman of evil report are gone to a f jfpedbed houfe together,
in the night, the officer may take company with him, and if he
find them fo he may carry them before a juftice to find fureties
of the good behaviour. Dal. Ch. 124. 2 Haw 61.
For it feems always to have been the better opinion that a
ynan may be bound to his good behaviour for haunting bawdy
houfes with women of bad fame, as alfo for keeping bad women
j.i ! F own houfe. 1 Hawk. 132.
And a wife may be iodidfed together with her hufhsnd, and
c^nd^mned to the pillory with him, for keeping a bawdy houf^
f>r t'ffi is an offeree as to the government of the houfe in which
the wife has a principal fhare, and aifo fuch an offence as may
generally be prefumed to be managed by the intrigues of her
I Hawk. 2.
If a wife go awav, and remain with an adulterer without be-
Jog reconciled to her hufband, fhe ftiail loofe her dower. 1 In/L
435' ^
xvnt if a pcrfnn b indicted ror f; equrnting a bawdy houfe, it
muh appcr that he knew it to be lucn a houfe j and it muft be
txprefiy ailedged that it is a b :wdy houfe, and not that it is luf-
f cted t<> be fo. Wood. £. 3. Ch. 3.
On an indictment for keeping a diforderly houfe, a female
V'icnefs fwore that fhe was a failor's wife, and during her huf-
Rand's abfence out of thexommonwealth (he had often profti-
tuted
LEWDNESS.
tuted herfeif there. Lord Raymond find i.t was an odious piece
of evidence, and ought not to be heard. Barl.
But it is faid a woman cannot be indi&ed for being a bawd
generally, for that the bare folicitation of chafiity is not indiCta-
ble. I Hawk. 196. 1 Salk. 382.
It is an indidiable offence to frequent houfes of ill fame, or to
J)e guilty of grossly fcandalous and public indecency, for which
the punithment is by fine and impriionment.—But the temporal
courts take no notice of the crime 6f adultery, otherwise than as
a private injury. 4. Blacks Com, 65. But Jee V. /, p. 287. ivhcrq
adultery is punijhable by fine of twenty doiars.
Indictment for keeping a disorderly houfe.
The fivers for the commonwealth tpen their cath prefent, that
O, late of in the faid county} labourer, on tl. c
day of in the year and in the yea-" of the com-
momvealth, and at divers other times, as well hej ore as after,
with fio^ce and arms at afore fid, in the cnun'y a fere fa id,
fid keep and maintain, and yet doth k-ep and moiataln, a certain
common, ill governed and dijorderly houfe, and in th >, fid h-s'/fy
fir his own lucre and gain, certain evil and ill ai.'t fed perfons, as
•well men as womanf of' evil name and fame, and cfdifhone/f con ■
verj'at'usn, to frequent and come together there, ar.d ihe faid divers
other times, there unlawfully and •wilfully did cauf and procure
and the faid men and women, in the faid honfi at unlawful times,
as well in the night as in the day, then and the faid other times,
there to be and remain, drinking, tipling, whoring, and mifie ■
having, themfelves, unlaivfully and vjilfully did permit, and yst
doth permit, to the great damage ahd corn non nuifance cf all the
citizens of this .commonwealth, and againjl the peace and dignity
cf the commonwealth.
L I B E L.
A LI BEL is a malicious defamation of any perfn, expnfifed
either in printing or writing, figns or piirtures, to afpefie
the reputation of one that is alive, or the memory of one that ts
dead. Wood. B. 3. Ch. 3. C
A malicious defamationJ And the fcandal which is expreff d in
a feeding and ironical manner, is as prrperly a malicious de-fa-
macion as that which is expreffed in diredt terms: as where q
perfon propofes one to be imitated for his courage, who is known
> , to
3°6
LIBEL.
to be a great ftatesman, but no foldier; and another to be imi-
tafed for his learning, who is known to be a great general, but
no fcholar; and the like, which kind of writing is as well un-
derftcod to mean only to upbraid the parties with the want of
thofe qualities as if it had dire£Uy and exprefsly done fo. i Hawk.
194.
And from the fame foundation, it hath alio been refolved that
a .defamatory writing, exprefiing one or two letter?, of a name,
in (uch a manner that from what goes before, and follows after,
it mud needs be underftood to fignify fuch a particular perfon,
in the plain, obvious, and natural conftrudtion of the whole,
and would be petfebt nonfenle if reftrained to any other mean-
ing, is as properly a libel, as if ic had exprefied the whole name
at large; for it brings the utmoft contempt upon the Lw to fuf-
fer its juftice to be eluded by fuch trifling evalions, and it is a
ridiculous abfurdity to fay that a writing which is underftood by
every the meant ft capacity cannot poiiibly be underftood by a
judge and jury. 1 Hawk. 194.
And it matters not whether the libel be true, or whether the
party againft whom it is made be of good or bad fame; for in a
fettled ftate of government, the party grieved ought to complain
for any injuiy done to him in the ordinary conrie of law, and
not by any means to revenge himfclf, either bybthe odious couife
of libelling, or other wife. 5 Co. 125. But this is to be under-
flood when the profecution is by information or indi&ment; for
in an adlictn on the cafe, one may juftify that it is true. IP'ooi.
B. 3. Gh. 3—3 Blacks Com. 126.
Of any pe rfon] Where a writing inveighs agalnft mankind in
general, or again# a particular order of men, as for inftance,
men of the gown, this is 110 libel; but ic muft defeend to par-
ljculars and individuals to make it a libel. 3 Sal.k. 224.
Exprejjcd either in printing or writings Jif ns or pictures] A
libel is either in writing, or without writing: In writing when
an epigram, rhyme, or other writing is publifhed to the con-
tumely of another, by which his farpe or dignity may be preju-
diced: Without writing, may be by picftures, as to paint the
party in any fhameful and ignominious manner; or by flgns;
as to fix a gallows, or other reproachful and ignominious ffgns
at a man.'s door. 5 Co. 125
E. 7 G. mayor of Northampton's cafe. He fent lord Halifax
a licence to keep a public houfe, which the court faiJ was a ii-
bcl in the cafe of a perfon of his quality, and granted an infer-
ination for it. Sir. 422.
Or the memory of one that is deadJ For the offence is the fame,
vyhether the perfoq libelled be alive or dead. 5 Co. 125.
' ' m\
L I B E , L.
Who are ptmiJJjable fcr it.
It is certain that not only he who compofes a' libel, or pro-
cures another to compofe it, but alfo he who publishes or pro-
cures another to pubjifh it, are in danger of being punifhed for
it; and it is faid not to be material whether he who difperfeS a
libel knew any think of the contents or effect of it or not, for
nothing would be more eafy than to publifh the mod: virulent:
papers, with the grcateft fecurity, if the concealing the purport
of them from an illiterate publiftier, would make him fafe indif-
perfing them. I Hawk. 195.
Alfo it hath been faid that if he who hath either read a libel
himfelf, or hath heard it read by another, do afterwards malici-
oufly read or repeat any part of it in the prefencc of others, or
lend or fnow it to another, he is guilty of an unlawful publica-
tion of it. Ibid.
Alfo it hath been holden that the copying of a libel fliall be \
conclufive evidence of the publication of it, unlefs the party can.
prove that he delivered it to a magiftrate to examine it. Ibid.
And it hath been ruled that the finding a libel on a bcokfel-
ler's fhelf, is a publication of it by the boolcfeller, and that it is
no excufe to fay that the fervant took it into the fliop without
the matter's knowledge, for the law prefumes the matter is to be
acquainted with what the; fervant does. 1 Se/s. 633. K. vs.
Dodd.
And it feems to be the better opinion, that he who firft writes
a libel, di&ated by another, is thereby guilty of making it, and
confequently punifliable for the bare writing, for it was no hbel
till it was reduced to writing; for the efiencc of a libel confifteth
in the writing cf it; fince, if a man fpeaks fuch words, unlefs
the words be put in writing, it is not a libel. 1 Salk. 419.
Alfo it hath been refolved that the fending of a letter full of
provoking language to another, without publifhing it, is highly
punifhable, as manifettly tending to a difturbance of the peace#
1 Hawk, 195.
But it hath been refolved that he who barely reads a libel in
the prefence of another, without knowing it before to be a libel,
or who is only proved to have bad a libel in his cuftody, fhall
rot, in refpedf of anv fuch a£f, be adjudged the publisher of it.
But the having in one's cuttody a written copy of a libel publickly
known is an evidence of the publication cf it. 1 Hawk. 196.
The way for a man to keep himfelf out of danger in fuch cafe
is, if he fii d a libel, and it be compofed againft a private perfon,
he either may burn it or forthwith deliver it to a magittrate;
but if it concerns a magiftrate, or other publicperfon, he ought
immediately
3°S LIBEL.
immediately to deliver it to a magiftrate, to the intent, that by
examination and inquiry, the author may be found and punilh-
cd. 5. Co. 125.
How punifiable.
There feemeth to be no doubt but that the offenders may be
conlemned to pay fuch fine, and alio to fuffer fuch corporal pu-
niftiment as to the court in difcretion (hall feem proper, accord-
ing to the heinoufnefs of the crime and the circumftances of the
offender. 1 Hawk. 196.
And it hath been adjudged that libel?, as having a direft and
Immediate tendency to a breach of the peace, are indictable be-
fore juftices of the peace* 2 HawJ(. 40.
An indictment letting forth the offence to the effefl following
had been naught, being vague and ufelefs words, for the court
mull judge of the words themfclvesj but the wCrds according to
the tenour do curreCt the defeCt, for they import the very words
themfflves, for the tenour of a thing is the tranfcript and true
copy of it, to which k may be compared, and therefore of words
fpoken there can be no tenour, becaufe there is no written "ori-
ginal. 2 WA 417. 3 Salk. 225.
And it tauft be proved to be written or publifhed in thecoun-
try, laid in the indictment, all matters of crime being local.
fir. T. K 3. 774, 775'
Indictment for publijhing a scandalous and
libellous letter, imputing the crime of
theft to the prosecutor.
county to wit. ,t
I he jurors for the commonwealth upon their oath prefent^ That
Lie of the parijh of in tht county of gentle-
it>an\ leing a perfon of an envious, evif and wicked mind\ and of
a mrf: mctiiCious difpofiiion, and Wickedly, maliciaufy, and unlaw-
Judy minding, contriving, and intending, as much as in him lay,
to injure, epprefs, aggrieve, and vilify the good name, fame, ere-
ditj and reputation cf one gentleman, a goof peaceable, and_
wot thy citizen of this commonwealth, and to bring him into great
contempt, hatred., infamy, and di(grace, on the day of
in the year cf the commonwealth, with force and arms, at
the pari fa aforefaid, in the county aforefaid\ a certain falfe, fan-
claims^ and libellous writing againfl the faid faifely, mail-
cionfiy^ and fcandaloufjy dui frame and make, and in the name of
h im the faid then and there did caufe to be written and
pub life d
LIBEL.
Publifkedj in theform of a letter, dire died to hint the faid
the tenor of which faid writing is as follows, to wit, 7 0
Thefe fcoundrel (meaning the J aid )it may not amirs to
acquaint you (meaning him the faid ) as the time draws
hear, you (meaning the faid ) may be preparing yourfelf
(again meaning the [aid J for a trial, for fteaijng the tor-
kies out of my (meaning his the faid ) yard when 1 hope
to fee you (meaning theJaid ) fing a neck pfd n, and pe-
rifn according to law, you he'1 hound (meaning the faid )
fubferibed (meaning himfelf the faid ) and th^t the
faid with intention to Jeindalnze the faid and to bring
hhn into contempt, hatred\ infamy, and dijgrace, the faid /al/e,
malicious, and fcandalous libellous writing, £0 as aforejaid framed,
written, and made, afterwards, to wit, on the faid day of
in the year n[orefaid, and on divers other days and times, as well
before as afterwards, at the parifo aforcfaid, in the county afore-
Jaid, to divers citizens of this commonwealth, then and there pre-
fent, falfely, malicioufiy, andfcandaloufy 'did openly deliver, and
caufe to be delivered, to the great fcandal, infamy, and damage of
the faid to the evil example of all others in the like cafe of
fending, and again/1 the peace and dignity of the commonwealth.
Lord's day, (See SABBATH.) f
LUNATICS.
J. Of lunatics or non compos mentis by the
common law.
II. How they fall be refrained and kept, by
the act of Affembly.
I. Of lunatics or non compos mentis by the com-
mon law.
NON compos mentis is of four kinds' Fir ft, Id cots, who are
of nonfane memory from their nativity, by a perpetual in-
firmity.
Secondly, Thofe that lofe their memory and underftandirg by
the vibration of God, as by ftckncfs, or other accident.
Thirdly, Lunatics who have fometimes their underftanding
and fom- times not.
Fourthly, Drunkards, who by their own vicious for a
time deprive themfeives of their memory and underftaading. 1
3io LUNATICS.
He who irrites a mailman to commit msrder, or other crime,
is a prhcipal offender, and .as mucti punifhable as if he had done
it hipVclf. i fiW /•, 2.
lis L «t'-"V. tod lunatics who are ureder a natural difahilityof
th iliiguniitng between good and evil, are not punifhable by any
criminal p oiecutiort. ibid.
Ytt drunkards fhall have no privilege by. their tirant of found
m od, but fbaU have the fame judgment as if they were in their
rigtc fenles. I Inft. 24.7. 1 H, H. 32.
But if a perfon who.wants difcretion commits atrefpafs againft
the petion or poffeffion of another, he fhall be compelled in a
civil adion to give fatista&ion for the damage. 1 Havb. 2.
If one who hath committed a capital offence become nan com-
pos before convidion, he fhall not be arraigned; and if after
convidion, he fhaU not be executed. Hales Pis. 10.
By the common law, if it be doubtful whether a criminal
who at his trial in appearance is a lunatic, be fuch in truth or
not, it fhajl be tried by an inqueft of office, to be returned by
the fheriffi and if it be found by them that the party only feigns
himfelf mad, and he ftill refufe to anfwer, he fhall be dealt with
afc one that ftands mute. 1 Hawk. 2.
Any per (on may juftify confining and beating his friend being
mad, in fuch manner'as is proper in fuch circumftances. 1 Hawk.
130.
A perfon of nan- Jane memory fhall not avoid his own a& by ,
reafon of this defe6t, but his heir or executor may. 4 Co. Be-
•Uerley's cafe.
If an ideot takes a wife, they are hufband and wife in law,
and their iffue legitimate, for he is allowed to be capable of
conferring to marriage. 1 Kel. 112.
To matce a will it is not fufficient that the teftator have me-
mory to anfwer to familiar and ufual queltions, but he ought to 1
have a diipoiing memory, fo as to be-able to make a difpalition
of his eit-ue, with unJerfunding and reafon, 6 G>. 32. •
\
//. How they fall be rejlrahied and kept by •'<
the abl of Ajfembly.
Hie mod material parts of the a£b of AfTembly on this fub-
je£f, are the third, Jixtby eighth and fifteenth fedtions of the ait J
(17 R. Csnd. 1792, ch. 120) page 244, of the Revlfed Code,
(ht/e infert the above fections.
IVarrant ";;r.
LUNATICS. 311
}Varrant jar the examination of a -person supposed
to be of unsound mind.
county to wit.
JVhereas J have received due information that A L, is a per-
fort of infane or difordered mind, and is going at large in this county
to the great danger of the citizens of the commonwealth: Ton are
therefore hereby required to bring the faid A L, before me, or fame
other ju/lice of the peace for the commonwealth, 'and two other juf-
ticks of this county, on the day of ne$t, at in
this county, to be examined concerning his Jlate of mind, and the
caufcs of his infamty, accoraing to the a£i of Afjembly in thai cafe
made. Herein fail not', and then and there make due return of
this warrant. Given &c.
If foupd to be of infane mind.
iPurfnant to the within vc arrant, we have diligently examined%
(is well the faid A L, aj CD, E F, and G H, -witnefes to the
condufl and behaviour of him the faid A L, tvkercupon it appears
expedient to us that the faid A L, fhould be removed to the public
bofpital for the maintenance and cure of perfons cj unfound mind, in
he city of Wifiamfourg: IVe have therefore taken the depof.tions
f theJaid wiiuefjes, in order to be iranfmitted with faid lunatic
0 the keeper of the faid hofpital according to law.
" • " '• J. K.
L. M.
N, O.
Warrant for removal.
county to wit»,
J K, LAI, and N O, three of the juf ices of the peace of the*
uunty of to the Jheriff of the faid county, and to the keeper of
the public hcfpiial in the city of Williamjburg, for the maintenance-
and cure of perfns of unfonnd mind.
Whereas, u£on due examination before us, A L, of this county,
hath been adjmlged a perfon of irfme or difrdered mind, and we
have thought it expedient he jheuki be removed to the public hoi Vital
for the mainii lance and cure of perjons of ufpound mind, in the city-
of IVdliamfbi'.rg: Tou are therefore her coy authorifed and re-
(paired forthwith to remove the faid A L, to the jaid hcjpital in the
city of Wiidrmhburg, and deliver hhn, together with the tvarran t.
and order, the depofitions of the wiinefes, a ccriif.cutc of th
A L
lunatics.
A L's eflaU, and the probable annual profits thereof and this pre-
ccpt, to the keeper of the faid hofpital, and for Jo doing this fall
be your warrant: And you the faid keeper are hereby required to
receive the J aid AL, into your cijiody, and him there fa fay to
keep, all he Jhall be discharged by due courfe of law \ and the fever al
papers herewith fent, to deliver to the directors of the faid hof
pital. Given &c.
if the ju ft ices think a guard neceffary, then after forthwith
infert 4 to imprefs a guard of one man (or two men) to aM
* you,' &c.
If f iends offer fecur iry, then in the order at the end, adf
* but P Q, of the faid county, appearing before us, and giving
4 lufficient iecurity that proper care fhall be taken of the laid A
4 L, and that he lhall be fecured and retrained from going at
4 large till he is reftored to his k*.fcs, we have delivered the laid
4 A L, to the faid P Q.'
Recognizance to be taken.
O
Be it remembered, that on the clay of in the year
before J K, L M, and N O, three of the justices of the
peace of the county of personally appeared PQ, KS, and
T W, of tne faid c- 'Uinv, and ltveraliy acknowledged themfeJ'/cs
indebted to A G, g >vernor or chief magiitrate tl,hkc:muion-
wealth, and his fucceifors, in the furn of ea\h so be levied
of ih^ir feveral and refpedtive lands and tenements, goods, and
chattels, and to the ufe of the faid cdmincnv/ea.tn, rendered.
Upon this condition, that whereas A L hath, mien examina-
tion before the juftices atdrefdd, been adjudged to be of infane
or differed mind, and it was thought expedient that he fhcuid
be reivioveu to the public hofpital for the maintenance and cure
of perf»ns cf unfound mind in the city of Wiiliamiiburg, bat at
the rtqueft of tne laid P Q, hath been delivered to him; if
therefore the faid P Q, fnali taiie proper care of the faid A L,
and caule him to be kept fecure, and retrained from going at
Urge, until he be refl-ored to his femes, then the above recogni-
Z,ance to be void, or elfe to lemain in fuli force.
Taken and acknowledged before us, J, K.
L. M.
N. 0.
Certificate of removal, and of the lunatic's eftate,
to be made to the next court of the
county after removal,
county to wit.
We
LUNATICS. 313
IV$ J K, L M, & N O, three of the jufiices of the peace for
the county afarsfaid, having upon due examination before us had.,
of A L, of this county, been of opinion that he was a perfon of un-
found mind, and that it was expedient he Jhould be removed to the
public ho(pital far the maintenance and cure of peifms of unfound
mind h: the city of IVilliamfourg, and having accordingly directed
him to be fo removed by our order bearing date the day of
lajl pajl'y we do therefore, hereby certify the fame to the ceurt
of this county, together with the annexed certificate of the efiatof
the full A L, which is ail that has yet cme to our knowledge.
Given (Sc.
J. K.
L, M.
N. O.
To the above warrant flhould be annexed an inventory of all
the infane's eft ate, both real and perfonal.
M A I M.
A AIM in men a hurt of any part of a man's body, whereby
lVJ he is rendered lefs able in fighting, either to defend him-
felf, or annoy his adverfary. 1 Haw. in. _
for the members of every citizen are under the fafe-guard'
and protection of the law, to the end a man may ferve the com-
monwealth, when oceaiion fnail be offered; and therefore a
perfon who maims himfc'.f, that he may have the more colour
to beg, may be indidled and fined. 1 Irfl. 127.
I t:e curling off", or difabiing, or weakening a man's hand or
finger, or firi-sing out his eye, or foretooth, or cuff r£ting him,
,a:e laid to he maims, but the cutting off" his ear, or nofe, were
net eiteemeJ maims at the commoA Uw, became they do not
weaken but only diffigure hi;n. I Haw, 111, 112.,
It is laid, that anciently caffration was punitive a with death;
and other maims wjth the lots of member for member; but af
terivards no maim was puniffnea in any cafe with the loff of life
or member, bat only with fins and inaprifonment. 1 Haw. Hi,
112.
If a man attack another with intent to murder him, and' he
does not murder, but only maim him, the offence is never the.-
lefs within the ftatute. I Hawr 112.
The cafe was, one Mr. Coke, a gentleman of Suffolk, and
one Woodlurn a labourer, were indicted, in 1722, Coke for
hiring and abetting IVoodburna and IVcsdburn, for the actual
foot
MAI M.
fad! of flitting t?ie nofe of Mr. Ctifpe. The murder of Crijpt,
was intended, and he was left for dead, being terribly hactced
and diffigured with a hedge bill; but he recovered, Now the
bare intent to murder is no felony; but to diffigure, with an in-
tent to diffigure, is made fo by this ftatute, on which they were
therefore indicated. And Cake refted his defence upon this point,
that the affault was not committed with an intent to diffigure,
but with an intent to murder, and therefore not within the fta-
tute. But the court held, that if a man attack another to mur-
der him with fuch an inilrument as a hadgc bill, which cannot
but endanger the diffiguring Jlim; and in fuch attack happens
not to kill, but only to diffigure him; he may be indidled en
this ifatute; and it fhall be left to the jury whether it was not a
defigri to murder by diffiguring, and confequently a malicious
intent to diffigure as well as to murder, Accordingly the jury
found them guilty of fuch previous intent to diffigure, in order
to effied! their principal intent to murder. And they were both
condemned and executed. 4 Black. 207.
If the maim come not within any of the defcrjptions in the
ad!, yet it is indictable at the common law, and maybe punifn-
ed by fine and imprisonment: Or an appeal may be brought for
it at the common lav/; in which the party injured fhall recover
his damage^;- or he may bring an ad!ion of trefpafsj which kind
of adtion hath now generally fucceeded into the place of appeals
in finaller offences not capital. 2 Haw. 157. 160.
It doth not fee-m, that in maiming' there may be acceffaries
after the fad!. 2 Haw. 311,
By V. I. (17 R. Cond. 1792. ch. 99. § 1, 2) p. 188. 4 If any
4 perfon or perfons etc, (here infert factions 1 & 2, of the above
law.)
Indictment cffelony by flitting tkc nosey and again ft
the aider and abettor.
county to wit.
The jurors for the commonwealth, upon their oath prefent,
That J VV, late of the paiiih of in the county of
labourer, and A (J, late of the parifh aforefaid, in the county
aferefaici, efquire, on the day of in the year
and in the year of the commonwealth; contriving and in-
tending one E C, then and yet being a citizen of t,he laid com-
men wealth, to maim and diffigure, at the parifh afcrefaid, h)
the county aforefaid, with force ancj arms, in gnd upon the faid
1. C, in the peace of God and of the faid commonwealth, then
and theie being, on purpefe, and on malice aforethought, and by
MAIM.
lying in wait, unlawfully and felonioufiy did make an aflault,
and the fiid J W, with a certain iron bill, of the value of one
pinny, wbLh he the faid JW, in his right hand then and there
had and held, the nofe of the faid E C, on purpofe, and of his nia-
lice aforethought, and by the Iving in wait, then and there un«
lawfully and felonioufly did flit, with intention the faid E C, in
fo doing, in manner aforefaid, to maim and diffigure; and that
the aforefaid AC, at the time the aforefaid felony, by the faid
J W, in manner and form aforefaid, was done and committed,
to wit, on the faid day of in the year of our Lord
aforefaid, and in the year of the commonwealth aforefaid,
with force and arms, on purpofe, and of his malice aforethought,
and by lying in wait, unlawfully and felonioufly was pre fen t,
aiding and abetting the faid J W, in the felony aforefaid, in
tnanner and form aforefaid, done and committed : and 1b tne ju-
rors aforefaid, upon their oath aforefaid, do fay, That the taU
J W, and A C, on the faid day of in the
year of the commonwealth aforefaid, at the parifh aforefaid, in
the county aforefaid, with force and arms, on purpofe, and of
Aeir malice aforethought, and by lying in wait, the felony afore-
faid, in form aforefaid, unlawfully and felonioufly did do and
commit, and each of them did do and commit:, againfl the peace
and dignity of the commonwealth, and againft the form of the
ftatute in fuch cafe made and provided.
Mainprize, (See BAIL.)
MAINTENANCE.
UYING of titles belongeth not to this place, but is treated
1 of under a title of its own.
I. Of maintenance in general,
II. Of champerty in particular.
III. Of embracery in particular.
I. Of maintenance in general.
Concerning which I wiltihew,
i. IVhat it is.
ii. How punijhable by the common law.
i. What it is.
I.
316 maintenance.
I. Maintenance (manu tenere) is an unlawful taking in hand
or upholding of quarrels or fuits, to the dijlurbance or hindrance
of common right. I Haw. 249.
2.. And it is twofold;
One in the country; as where one affifts another in his pre-
teniions to certain land?, by taking or holding the pofleffion of
them for hi-m by force or fubtilty; as where one ftirs up quar-
rels, and fuits in the country, in relation to matters wherein he
is no-v.ays concerned: and this kind of maintenance is punifha
ble at the commonwealth's luit by fine and imprifonment, whe-
ther the matter in difpute any way depended in plea or not; but
it is laid not to be actionable. 1 Haw. 2.49.
Another in the courts ofju{licc\ where one officioufly inter-
meddles in a fuit depending in any fuch court, which no ways
belongs to him by affifting either party with money or ether-
wife, in the profecution or defence of any fuch fuit. 1 Haw»
249.
3. Of this fecond kind of maintenance, there are three fpecies;
Firft, Where one maintains another, without any contract to
have part of the thing in fuit; which generally goes under the*
common name of maintenance.
Secondly, Where one maintains one fide to have part of the
thing in fuit; which is called champerty»
Thirdly, Where one laboureth a jury; which is called cat-
braccry. I Haw. 249.
4.. But it feemeth to be agreed, that wherever any perfons
claim a common intereft in the faVne thing, as in a way, church-
yard, or common, by the fame title, they may maintain one'
another in a fuit relating to the fame. 1 Haw. 252.
5, Alfo, that whoever is any way of kin or affinity to the
party, may counfel and aiiift him, but that he cannot juftify the
laying cut of his own money in the cauie unlefs he be either fa-
ther, or ion, or heir apparent. I Haw. 252.
6. Alfo, that * ny one in charity may lawfully* give money
to a poor man, to enable him to carry on his fuit 1 Haw. 253.
ii. Ho-id punijhable by the common lazv.
It feemeth that all maintenance is not only malum prohebiium
by flatute, but is alfu malum in fe, ar.d ilridtiy prohibited by the
common law, as having a manifelf tendency to opptefficn; 2nd
therefore it is faid, that all offenders of this kind ere not only
liable to an a£iion cf maintenance at the fuit cf the party grieved
wherein they fhall render fuch dan-ages as {hall be anfwtrable
to the injury done to the plaintiff; but alfo that they may be in-
dieted
MAINTENANCE. p7
dieted as offenders againfr public jnfti.ee, and adjudged thereupon
to fuch fine and inrtprifonnient as iftia.ll be agreeable to the cir-
cumftance of the offence.
Alio it feemeth, that a court of record may commit a man
for an a£t of maintenance done in the face of the coutrt. 2, lnji.
212. I haw. 2.55.
C? Thefiatute of England concerning maintenance has not beeri
adopted by our laws.
II. Of champarty in particular.
i. What it is.
it. How pufiijhahle by the common law*
Hi. How by Jtatute.
i. What it is.
Champerty (from campt parti) is the unlawful maintenance of
a fuit, in confide ration of fame bargain to have part of the lanns
or things in difputCy or part of the gains. 1 Haw. ifo. 33. Ed.
I St. 2.
Every champerty is maintenance, but every maintenance is
hot champerty: for champerty is but a fpecieS of maintenance
which is the genus. 2 lnji. 208*
ii. How punifhable by the common law.
Champerty was an offence at the common law, and as fuch
is punifhable in like n»anner 2s hath been expreffed in treating
of maintenance in general, 2 Inf. 208.
ill. How by Jhiinte.
t Bv V. L (17 R. Cond. 1792. eh. 97.) p. 1S6. it is declared.
That champerters be they Sic. (heie iulcrt the above law.)
III. Of embracery in particular.
i What it zs.
ii. How punifhable by the common law.
iii. How by flat ate.
i. What it is.
\* It feems clear, that any attempt ivhafoevcr to corrupt, or
F p influence
3.8 MAINTENANCE.
inf uence or inflruft a jury, or ar.y way to incline them 'H
be mote favourable to the one fide than the other, by money,
ptomiirs, letters, threats, or perfuaftons, is a proper aft of
embracery, whether the jury to whom fuch attempt is made give
any verdict or riot, or whether the verdict given be true or falfe,
I Haw. 259.
2. And the law fo far abhors all corruption of this kind, that
it prohibits every thing which has the leaft tendency to it, what
fpecious pretence foever it may be covered with, and therefore'
it will not fuller a mere ftranger fo much as to labour a juror to?
appear and ail according to his confcience. 1 Haw. 259.
3. But any perfon who may juftify any other a£l of naainte-
nance, may fafely labour a juror to appear and give a verdi'ft ac-
cording to his confcience; but no one vvhaffoeveF can juftify the'
labouring a juror not to appear, i Haw. 260;
7i. How punijbable by the common law.
There is no doubt, but that offences of this kind do fuf»je&
the offender either to an indictment or aCtion, in the fame mart-
ner as all other kinds of unlawful maintenance do by the com--
n-.on law. Hatv. 26O.
ill. Hew by Jlatuie.
Py V. I. {if fh. Con J. 1789. ch. 48. § 3, 4.) p. 52.1 If any'
* juror &c. (here infert feCiions 3 & 4-of the above law.)
In dial merit for maintenance.
The jurors for the commonwealth upon their oath prefent,
That A O, late of in the county aforelaid, yeOman, on the
d^y r.f in the year of with force and arms at
a for efj id, in the county aforcfaid, did uujuftly arid unlawfully
maintain and upheld a certain fuit which was then depending iir
court cf the common wealth, between A P plantiff, and A
1) rlt-fmdant, in a plea of debt, on the behalf of the faid A P,
agnijift the faid A Id, contrary to the form of the ftatute in fuch
rule made and provided,. and to the manifeft hindrance, and the
diiiimbaiT'eof juftice, and in contempt of the faid common wealth,
and ne laws thereof, and to the great damage of the faid Aft,
and agaiuit the peace and dignity of the commonwealth.
M A N D A M U S.
ATRIT of mandamus i?, in general, a command iffuing
1 ftom a fuperior court, having competent authority for
that
MANDAMUS. 319
■that purpofe, and directed to any perfon, corporation, or infetiar
court of judicature^" requiring them to do fotns parlpi^ar thing
therein fpectfied, >vhicl? appertains to their office and duty, and
which the fuperlor court has previoffily determined, or at 1eaft
fuppofes, to be confonant to right and juftice. 3 Jdl icks Com lie,
Applications for mandamus fhould always be fupported by af-
fidavits, that the courjt nuy ju^ge of the propriety of graining
them $ and this is conflatit practice. $ce Butter's N. P. an-
iler this head.
And therefore., if it does not appear to the court what the of-
fire is, to which the party wifhes udmhtance, the c^ur; will re-
fufe a mandamus. 2 Med. 35$. -
Where the mandamus is purfued as a remedy to in force obe-
cience to the laws of toe commonwealth, ic is grantable of cum-
mon right; but where the right is of a private nature, as to an
tince the. it is difcreiionary in thjs court to grant or re.ufc ft,
It Co Bagg's cafe. Lt Ah P. * Mandamus.'
It is a writ, or a moit extenftve remedial nature; and may be
ihued in fome calls where the party injured hath alfo anothcV
wore ti.diouj method of redrefs, as in the cafe of admiffio.i or
reftitution to an office; but it jiffies in all cTes, where the party
hath a right to have any fhing done, au<l hath no other fptciiic
uiea.'U of compelling its performance. 3 Blacks Com. 110.
But.it ought not to be granted ^except in very particular ca-
fes) whcrcthe party applying far it has a fpecific legal remedy.
3 Burr. 1265. 4 Bun. 2186. Qoap. 378. 1 Termt II:p. 370.
This writ lies as well to re ft ore one who has been unjuftiy're-
psoved, as to admit dne who has a right. Onjlouds A. P, iql.
L lies to admit a pi vfhu to academical degrees; to ti.e ufe of a
race iug h-.xjfe &c. tor the production, nfpodiion, cr delivery, of
pjbiic boohs and p qn. rs; for the lurreutkr of the regatta of a-
cu.p.jration; to oblige bodies corporate to affix their common,
hai; to compel the holding of a ecu; t; and ffif an infinite nam-
I er Of other p'Jrp <ics, wliich ic is irnp.ffilbie to recite rninuteiy.
But at p/gft-nt, w: a;e more particuuily to remai h, that it iimes
p) the judges of any inferior court, commandina, thcav coda
jffitice according to the powers of their o;nc\ whenever the
lame is d hayed.' 3 Sua Is Can. iiO, hce 1 Mitt. li% 2 L> 76,t
*25> l3% 2-6> 283, 305,
-This writ is'grounded on a legg'THon, bv the party injured
of his own rffihi, and the denial of juftice b lew; whereupon.,
in order to fatisfy the court more fuhy that there is a probable
ground for fuch interpolkion, a rule is nmde, (except in fome.
general cafes, where the probable ground is manifeft) directing
the party complained of to fhevv caufe why a. writ of mandamus,
fcould not blue. 3 Blacks Com. i\l%
3*9 M A *N D A M U S.
But where the ?nandamus is to fwear or adroit, the court will,
in cafe the right appear plain, grant the writ Upon thd firft mo-
tion; but where it is to reftore one who has been removed, they
yrould fir ft grant a rule to (hew caufe, why fuch a wiit ihould
not iiFue. Qnjl. "N. P. ig'j,' ■ •
And note the rule to fhevfr cau-fe.muft always be to the fame
perfons to-whom the writ is to be dire&ed. Onjl. N. P', 191. •
Where the court grants a rule to (hew caufe, though upon
(hewing caufe it appears doubtful, whether the party have aright
or not, yet the court will ifiiie the 'mandamus, un order that the
hiatter may be tried upon the r&turrfi Qnjl, N, Pi 92. -
If on the rule to (hew caufe no fufficient caufe is mews, the
writ itfelf fifties. 3 Blacks Corn, tnfi , ' *
" The firtt wrjt of hiandamtis always concludes with comm2tuk
ing obedience, or cauf.-* to.'be fhewn to the' contrary; but if a
return be made to it, which upon the face of it isftnfutiicient,
the court will grant a pere)>ipP,ry mandamus^ to do the thing ab*
folutelyj to which no othef return will be-' admitted,' but a duft
execution of the wyitj and ft that be difobey'ed ar, attachment
will iftue againft the perfons difobt'ying it. Qufi. N. P. 193. 3
Blacks Com. III. 1 ;
. fio if ho' return be made, the court will grant an attachment
againft the per.'ons towhom the mandamus, was directed; wjrli
this c!i(Ferenee, however, that where a mandamus is dire&ed toi
a corporation to do a corporate a<ft, arfd no return 15 made, the;
attachment is granted only againft thol'e particular perfons who,
yefafe to pay obedience to the mandamus j but where it is dire'£t-
cd to fevpral perfons in their-natural capacity, the attachment for
difebedience muft ifthe againft all, tho' when they'are before the.
Court, the punifhnieht will-be proportioned to, their offence.'
OnJl.N; P. 193. ■
• But if the return upon the fape of it he good, tho; the matter,
pf it be rah'e, the court will not try the truth 'of the tacts upon
affidavits, but will for the-pfefent believe it, and prdceecl nofur-
thcr upon fire ?nah Junius. But then the party injured may have
an ablion againft him for his ftdfe return, and (if found to be
falfe fty the:jury) ihaii recover damages equivalent to the injury
fuftain'ed^ together - with a peremptory mandamus £0' the defen-
banc.to do ids duty. 3 Blacks';Com ill.- O.vjl. N. P. 194.
An action -will lie lor fupprefting the truth in a return-as well
as for retarding 51 faUehoedj arid that if the return be true in
word?, but fade in fu'bitance. Dcug. 154. '
* Where the return is nude by fever?.], ■ the a&ions may be ei-
rlier joint or feverai, it being founded upon a tort; but if it ap-
pear 'upon evidence that the defendant noted againft the returri,
but "■*
MANDAMUS.
but was over-ruled by a majority, the plaintiff (hall be non-fuit-
ed; and tho' the return be made in the name of the corporation^
yet an adlion will lie againft the particular perfons who caufect
the return to be made; of if the matter concern the public go-
vernment, and no particular perfon be fo interefted as to maintain
an aHion, the court will grant an information againff the per-
fons making the return. Onft. N, P. 194.
Note:—Where feveral join in an application for a mandamus,
they mult all join in an adtion for a falfe return. Ibid.
What have been held furficient returns and what not, may be
feen in Buller*s, or Qnjlow's Niji Prius, under the head of
* Mandamus, and the feveral books of reports where that fubje^f
has come before the court.
Fcrm of a return to a mandamus.
(On the back of the writ the following indorsement is made.j
The execution of this writ appears in a certain fchedule to
this wiit annexed. A B, &c.
Then on a piece of paper ar^nexed to the writ make the fol •
lowing return.
The anfiver &c, to the writ to this fchedule annexed, according
to the comma:-ft of the faid writ.
We certify £:c. (here infert the caufe &c.) See 11. Co. Bagg*s
cafe. 3. L. Pay;72. (pleadings) 203. Ibid. I.
Manflaughter, See £ HOMICIDE.')
M A R R [AGES.
THli publication of banns (the only inffance under this 1.'ad
which contains any matter. Within the jurifdidtion of a
fingle magillrate) having now become nearly obfoletej it will
fcc luflieient here, to refer to the add itlelf for fuch other infor-
ffiation as does not particularly relate to the duties of a juflice of
the peace. See V. I. (\j R. Cpnd. 1792. ch. 104) page 202 of
the Rev! fed Code.
Matters (See APPRENTICES. SERVANTS.)
Mcafures' (Set WEIGHTS.) '
MILLS AND M I L L E R.
THE proceedings on erecting mills containing nothing pe-
culiarly relative to the. duty of % fingle magiftrate, I iiiali
confine
mluls and miller.,
cohfitfe tnyfelf to fiich part of the a£f of Afltmbly, as more irn-
|nediately fall within the jurifdi&ion of a judice of the peace.
By F. L {\f fti Cond. 1)92 c. 10^. § 9, 10,11.) />. 208.
i All m diets fliall wed 4ft J fuiBciently &c. (here tnfert feels. 9^
* 10, & H, of tne above law,')
Warrant afainjl <1 miller.
, county tq wit, f + '
•t , Complaint bjug this day made to pie que of the juflices of
phe peace fug the faid, by " thqt. a nyVler at mill, in tkf
jaid county, hid, on the' day of lajl, refuje to gr\nd a lag
cf corn [or wheat) belonging to according to Lis turn j for
did not fufHyieruly grjn j a bag of cojm? or wheat, belonging ti
tne Lid and Carried to the laid mill tq be groundj or did
t^ke more than on a eighth patf; of a bag of wheat or corn be-
1 mgihg to the fjd " and carried tolhe faid mill to be ground,
far the toll thereof1! hentrary to the aid of ' Ajfcmlly in thai taje
ppidt: thefe ate therefore, in the narrft of the commonwealth to
vjih and i* squire you to bring tree'(aid ' ' before me or fine other
cf the commonwealth's jit/iices.of the peace for the faid county, U,
anl'vccf the premifss. GicJen under my hand the ' ' day of
Tq cunflable,
J LOGMEN T.
• On hearing the within-complaint, it being duly proved before:
me that the within named is guilty (as in the vjarrant ac~
cording to the cafe) b . which he hatn foi felted fifteen findings
i»-* _r»t money; it is therefore confhiered that the within named
recover againil the (aid the faid fifteen fiullings cur-
tent money, together with his coils by him in this behalf e*-
pended, Given yke.
* Coils.
1W B. If the miller is an indented fervaqt or fuve, it flundd
be mentioned in the warrant j as in fuch cafe he is to be whip-
ped far the firil and fecoud offences, and afterwards the owner
is made liable.
I Far rand agalnjt the oram:r of a mill.
county to wir.
Complaint cJc. at in thefiff, that owner of mill\ in
the fald county, dies wt keep in the ffid mill a bufel, halfbufel, '
MILLS aud MtLgER.
pscky op tole difi)-) fealed according to a£i of ajpmhly; tkcje are £fV.*
as in the jirjh
If the owner lives out of the county., ba? a knpwn a?tor-
and has no known attorney therein, but the fatd mill is If J by ,
a fervant, or JIave belonging to the/aid (i j® and then tile war-
rant is to'inforce.jh? appearance of the fetvant oV Have,
J \T* D G £ N,r T.'
■ • > f>T • '
As the firfly only taking notice whether the attorney,' fervanfy
or flave appears} the fine is fifteen {hidings,- ,with" co'u?,f t^ the
informer.
Trin. 16* Geo*. TT K. and Wood. T-he defendant heic-g -a
miller, was indited for changing corn delivered to him to be
gVound, and giving bad corn initead of it. It was moved to
quafh it, becaufe only a private cheat, and not of a pub'i'c na-
ture} but ifwas&nfweredy that being .a qhe^f iff T the
trade, it concerned the public, and. therefore vyas. fmhaabfo.
And the Coart was unanimous not to cpiafhit. fejs.' Gas. '/A } ••
^7- . - ' " • , , , J, '
Although eyery -larceny implie? a trefpafs,. and a ft-.lohioys
taking of the thing ftolen, yet it hath been refolded tfiat evejr^
thofe,Vvd?o have the-pofieffion of goyds by, the ,T'Uyery, of1 ,th.£
party as a carrier who hath goods to cafry, .yjiEcoydequently q,
ipiiler who hath corn "dcrfivpted to hfrnrtp grtnd„f itj^v be
of felony by taking awty part thereof, with an intent to fif-al, It.,
See title 1 Car riers J {
L lyiilddveature. [See HO?vliCiDE.
™ E-t — —L,
' M I S D E M E A\t'O R.' •,
ACTUATE-or fhifilemeanor, is an acf committed ot ot^l'tecl
in violation of a public taw, either forbidding or com-
manning it. This genera! definition comprehends both crimes,
and miidemeanorf, which properly (peaking, are fynonyitot>'<?
terms; tho' in common ufage, the word crime Is nnrJe to dfthWe
fuch ofFenccs as are of a deeper and mofe atrocious die; fvhije
fihaller faults and omiiTions cf Iefs confluence are cotnplildd
under the gentler name of m'tfdemeanor only. 4 Blacks Com.f.
' ' Tor
324 MISDEMEANOR.
To enumerate thfe various a£ls which have been determined
to be mifdemear.ors, would be a work of immenfc labour. Suf-
fice it to fay that the word is generally applied to all thole offen-
ces for wb'rch the law has not provided a particular name; and
they may be putiifhed according to the degrees of the offence,
by fine or imprifonment or both. Barl.
Wherever an ofFence is declared by law to be a felony, it
cehfes to be a mifdemeanor; unlefs it is oiherwife provided. I L.
Raym. 712.
The ofFence of receiving ftolen goods, knowing them to be
ftolen, which is punifhable as a tiiifdemeanor by our laws, is
treated of under title 4 Acctjjory.*
Mifprilion of felony. (<SW FELONY)
Mifprifion of treafon. (See TREASON.)
Mittimus. (Set COMMITMENT.)
Murder. (See HOMICIDE.)
M U T E.
THE punifhment formerly inflidled by the common law on
perfons (landing mute on an arraignment for felony; is
lnferted here rather as matter of curiofity than becaufethe law is
fever put in force, efpecially fince the flatutes were made, which
fubjedted the party to the fame fentence, as if he was found guil-
ty on verdibl or confeffion,
Heretofore, fays lord Coke, a perfon Handing mute Upon an
arraignment of felony, (that is, without fpeaking any thing at
all, or without putting himfelf upon God and his country,) was
liable to a flrange and cruel kind of punifhment; the judgment
in this cafe was, that the man or woman fhould be remanded to
prifon, and laid there in fome low dark room, where they fhould
lie naked on the bare earth, without any litter, rufhes, or other
tloathing, and without any garment about them", but fome thing
to cover their naked parts; and that they fhouid lie upon their
backs,, their heads uncovered and their feet, and one aim to be
drawn to one quarter of the room with a cord, and the other
arm to another quarter, and in the fame manner to be done with
their legs; and there fliouki be laid upon their bodies iron and
flone, lo much as they might bear and more; and the next day
following to have three morfels of barley bread, without any
drink, and the next day to drink thereof the water next to the
houfe of the prifon (except running water) without any bread,
and this to be their diet till they were dead. So as upon the
matter,
MUTE.
matter, they (h$uld die three manner of ways, by weight by
famine and by cold. And the reafon of this terrible judgment
was, becaufe they refufed to (land to the common lav/ of the
land. 2 Injt.. 178, 179. This punifbment was called pure forte
et durey and is not to.be inflidted until a jury is impanelled to.
try whether he ftands mute from the vifitation cf God. 2 Hawk..
330. But this, is ta be underftood. of fuch felony for which h&
is not to have his clergy ; otherwifc, if he ftands mute he (ball
have his clergy. Moor. 550.
'See under title Criminals, the confequence of (landing mute.
NUISANCE.
I. What it is.
II. How it may be removed.
III. How puntjhed.
I. What it is.
A COMMON nuifance feems to be, ;an offence againft the
public, either by doing a thing which tends to the annoy-
ance of all the commonwealth's citizens, of by negledling to do
a thing which the common good requires. 1 Haw. 197.
Annoyances to the. prejudice of particular perfons, are not
fmnifliable by a public profecution as common nuifances, but
are left to be redrefled by the private adtions of the parties ag-
grieved by them. .1 Haty. 197.
Where note a diverfity between a private and a public nui-
fance: If it is a private nuifance, .he (hall have his adtion upon
his cafe, and recover his damages; but if it is a public nuifance,
he (hall not have his adtion upon his caie, and this the laW hath
provided for avoiding of multiplicity of fuits, for if any one
might have an adtion, all toen might have the like; but the law
for this common nuifance hath provided an apt remedy, by pre-
fentment or indidtment at the fuit of the commonwealth, in the
behalf cf all its citizens; unlefs any man hath a particular da-
mage, as if he and his horle fall into a ditch made acrofs a high-
way, whereby he received hurt and lols, there for this fpeciai
damage which is not common to others, ke (hall have an adtion
upon his cafe. I Injl. 56.
And from hence it clearly follows, that an indidlment, for a
nuifance can be good, which lays it to the damage of private
perfons
Q.q
326 NUISANCE.
perfons only; as where it accufes a man of furcharging fuch a
common ; or of inclofing fuch a piece of ground, wherein the
inhabitants of fuch a town have a right of common, to the nui-
fance of all the inhabitants of fuch a town or of disturbing a wa-
tercourfe runing to fuch a mill, t© the damage of fuch a perfon
and his tenants, without faying of all citizens of the common-
wealth, i H. 197.
Yet it hath been faid, that an indidtment of a common fcold"
is good, altho' it conclude to the common nuifance of divert
inllead of all the commonwealth's citizens; perhaps for this rea-
fon (fays Mr. Hawkins) bccaule a common fcold cannot but be
a common nuifance. 1 Haw. 198.
And if the law be fo in this cafe, why fiiOiild not an indidt-
ment fetting forth a nuifance to a way, and exprefsly and unex-
ceptionably {hewing it to be a high way,*be good, notwithftand-
ing it conclude to the nuifance of divers, without faying the
commonwealth's citizens. And perhaps the authorities which
feem to Contradict this opinion, might go upon this reafon, that
in the body of the indidfment, it did not appear with fufficient
certainty> whether the way wherein the nuifance was alledged,
were a-highway, ©r only a private way, and therefore that it
fhall be intended from* the conclufion of the indidtment, thaf it
was a private way. 1 Haw. 198.
There is no doub& but that common bawdy houfes are in-
disable as common nuifances; and it hath been faid that all
cornrnoa ftages for rope dancers, and alfo all common gaming
houfes, are nuifances in the eye of the law, not only becaufe
they are great temptations to idlencfs, but alfo they are apt to
draw great numbers of diforderly perfons. 1 Haw. 198.
Alfo it imth been holden, that a common ploy houfe may he
a nuifance, if it draw together fuch a number of coaches or pe»-
p'e, as prove generally inconvenient to the places adjacent, f
Haw.' 198.
Erecting a died fo near a man's houfe that it flops up his
lights, is not a nuifance far which an airion will lie, unlefs ihe
houfe is an ancient houfe, and the lignts ancient lights. 2 Saik.
459- v
/\if> doping a profpect is not a nuifance. 3 Salh. 247.
A gate erected in a highway, where none had been before,
is a common nuifance. 1 Haw. 199.
A perfon was indidted for making great noife in the night
with a fpeaking trumpet, to the difturbance pf the neighborhood;
and it was held by die court to be a nuifance. T. 12 G. K.
and Smith, Sir, 704.
The
NUISANCE.
Two perfon were indi&ed for making great quantities of
nuifance, cffenfive and/linking liquor $y called acid Ipirit of ful-
phur, oil of vitriol, arid oil of aqua fortis; whereby the air was
impregnated with npifome and oftenfive fmells; and it was held
by the court to be a nuifance. The word noifome comes in the
place of the Latin mcwus\ and means not only difagreeable, but
hurtful. And lord Mansfield faid-, it is not neceflary, to conili-
tute the offence, that the ftnell fhould be utiwholefome: it is
enough if it renders the enjoyment of life and property uncom-
fortable. Bun. Mansfield. 333. Rex. v. White and Woodi
A glafs houfgy at fii'ine yard may be indi&ed as a nuiiance:
And, according to Mr. Hawkinsy a brew houfe, and the making
candLs in a town, fo as to make it. offenfive to the neighbour-
hood, 1 Hawk. 1,9.9,
If a man has a dog that kills ftieep, that is not a public nui-
fance, but the owner of the dog ('knowing thereof) is liable to
an action; but If he is ignojrant of fuch quality,* he fn-a.ll not be
punilhed for this killing: and in an adtion on the cafe for fuch
killing, the plaintiff fhall he required to prove in evidence, that
the cog had ufed to kill fheep, Dyer, 25. Het. 171.
if a man hath an unruly horfe in ins liable, and leaves open
the door, whereby the horfe gets forth ar.d doth milchicf, an ac-*
tion lies againft the matter. 1 Vent. 295,
In the cafe of Buxenden and Sharp. The plaintiff declared,
that the defendant kept & l-ully that ufed to run at men, but did
not fay that the defendant knew of his quality; it was adjudged
that an adtion did not lie, unlefs it did appear that the owner
• knew of this quality. .2 Saik. 662.
II. Ildw it may be removed.
It feemeth to b<r certain, that any one truiy pud down or
otherwife ddlrov a common nuifance, as a new gate, or even a
new houfe credited in a highway, or the like, for if one whofe
eflaie is or may be prejudiced by a private nuifance actually
created, as a houfe hanging over his ground, or doping his
lights, may juftify the entering into another's ground, and pul-
ling down and dettroying fuch a nuifance, whether it were
ereded before or ttrce he came to the eftate, it cannot but fol-
low a fertiori, that any one may lawfully detlroy a common
nuifance: And as the law is now holden, it hems that in a
plea, jufiifying the removal of the nuifance, a man need not
fhew that he u;d as little damage as need be. I Haw, 199. %■
Bun. 267,
But although he may rernove the nuifai ce, yet he cannot re-
- move
32S NUISANCE.
move the materials, or convert them to his own ufe. Dalt, r,
50.
III. How punified.
It is faid that a common (cold is punifhahle after conviction,
upon indictment by being put into the cucking ftool, 1 Haw.
£00—Or, vulgarly the ducking ftool.
Note: cuek or guck in the Saxon tongue (according to lord
Coke j fignifieth to fcold or brawl ; taken from the bird cuckow
or guckbaw. and ing in that language fignifieth water; becaufe
a fcolding woman was for her punifhmeni fovvfed in the water.
3 Inft. £19. The common people in the northern parts of Eng-
fand amongft whom the greateft remains of the ancient Saxon
are to be loured, pronounce it clucking ftool •, which perhaps may
have fprung fnxn the Belgic or "1 eutonic ducken, to dive urder
water; from whence alio probably, we denominate owe duck the
water fowl; or rather, it is more agreeable to the analogy and
progrcflion of languages, to affert, that the fubftantive duck is
the original, and the verb made from thence; as much as to
lay, that to duck is to do as that fowl does.
And the may be convidtcd without felting forth the particulars
in the indi&ment. 2 Haw. 227.
Nevertheltfs, the offence muft be fet forth with convenient
certainty; and the indictment muft conclude not only againft
the peace, but to the common nutfance of divers of the common-
wealth's citizens. As in the cafe of K. and Margaret Cooper,
K. 19. G. 2p She was convicted on an indi£tment, for being
a common and turbulent brawler, and fower of difcord amongfi
her honeft and quiet neighbors, lo that (he hath ftirred, moved,
£nd incited divers ftrife?, controveriies, quarrels and diffutes
umongft his majeftffs lege people, againft the peace, &c. It
was moved in aVreft of judgment, that the charge was too ge-
neral, and did not amount to being either a barrator or common
fcold, which are the only inftances in which a genera! charge
will be fufticient. it was like wife objected, that if the words did
amount fo a difcription of a fcold, yet it ffiould be laid to be to
the common nuifmce of her neighbors, for every degree of
fcolding is not indictable. And the court was of opinion, that
the judgment ought to be arretted, on both exceptions! for none
of the words here ufed are the technical words, and it muft bs
laid to he to the-common nuifance. Sir. 1246k
There is no doubt, but whoever is convidbed cf another nui-
fance, may be fined and imprifonedy and it is faid, that en?
convidted of a nuifance duie to the commonwealth, may be
commanded
nuisance.
commanded by the judgment to remove the nuifance at his own
cefts; and it feemeth to be reafonable, that thofe who are con-
vi&erf of any other common nuifance, fliall alfo have the like
judgment., i Haw. 200. Str. 686.
And the defendant fhall not be allowed to make any objedlions
againft the indictment, until he hath pleaded to it. Dalt. c.
66.
And the court never admits a perfon convi£ted of a nuifance
.to a fmall fine, until proof is made of the nuifance being remov-
ed. Dalt. c. 66.
A mafter is indictable for a nuifance done by his fervant. L
Rdym. 264. ' '
There are alfo many other offences declared to be nuifances
by particular ftatutes, which are treated of under the titles to
Which they refpedtiyely belong.
General Indictment for a nuifance.
county to wit.
The jurors &c. upon their oath prefent, That A O, late cf
in the county of yev/ian, on the day of in the year
of the independance of and on divers other days and times, as
Well before as afterwards, with force and arms at in the jaid
county, (here fet forth the nuifance J and the fame (nuifance) fo
as aforefaid done, doth yet continue and fuffer to remain} to the-
common nuifance of all the citizens oj the jaid commonwealth, to the
evil example of all others in the like cafe offending, and againjl the
peace and dignity of the commonwealth.
Indictment a.^amll: a butcher for ufing his (hop as
a flaughter-houfe in a public market.
county to wit,
The jurors for the commomvealth upon their oath prefent, That
{I H, late of butcher, on the day cf in the year
oj the commonwealth, and on divers other days and times then be-
jore, at to ivit1 in the parijh of in aforefaid, in a
certain foop of him the faid H H, fituate and being in a common
market there called market, {the faid market being a common
pafage for all the citizens of the Jaid commomvealth, with their
goods, chattels^ and merchandizes to go, return, pafs, and repejs
at then free \uill and pleafure,) did unlaufully and injurioufy kill
and fay, and caufe to be killed and fain, ten lambs, and the ex-
srment, plccd, entrails, and other pith coming fromfe faid lambs,
\ ■ ' did
'33° NUISANCE.
did then, and on the faid other days and times refpefl'wely, there
cuufe and permit to lie and remain in the faid Jhcp for a long time,
to wit, for the fpace of five, hours, on each of thofe days, where Ly
divers filthy and unwholefomefmeils, and flenches from the excre-
merit, blood, entrails, and other filth coming from the lambs afore•
faid, then, and on the faid Other days and times refpefiively, there
did arfe, and the air there was thereby greatly corrupted and in-
'fedled, to the great damage and common nuifance not only of all the
'lawful citizens of the faid .commonwealth near their inhabiting
and dwelling, but alfo of all other the citizens of the faid common-
.wealth, in, by, and through the ffida common market and fajfage
going, returning, paging, repaffing and laboring, to the evil ex-
ample of all others in the like cafe offending, and againjl the peace
and dignity of the commonwealth. ,
For an indictment for a nuifance in obftruCing a public road,
See title 4 Roads/
See other forms of indictments for nulfances in &c. Cer.
Camp, title 4 Nuifance—and Cro. Cer. Affiftant, page 362—404..
G A T H S.
. I. Of oaths in general.
II, Oaths prescribed. by the laws of this
commonwealth.
III JVhat solemnities may be used injlead of
oaths.
IF, Oaths of infidels.
I. Of oaths in general.
OATH is a corruption of the Saxon word eoih. 3 Inf. 163,
It is called a corporal oath, bccaule the perEn lays 1 h
hand upon fpme part of the fcriptures when he tak.es it. 3 Ink.
lb5* •
if the oath be taken on the common prayer book, which hath
.the epittJes and gclpds, it is good enough, and perjury upon the
liatute may be.affigned upon this cash. 2 Kch. 314.,
The words, fo help me God, in the common form of an oath,
perhaps may have been mil ufed in the very ancient maniu-r J
trial by battle in England', or at leaft are de'ivered, witn a peer-
liar emphalis in that folemnity; v/htrein the app'-llee lavs his
right hand on the book, and with'his Eft hand takes the appx t-
- 1 En
OATH
331
]ant.by the right, and fwears to this effeft. He.fr ibis, thou
who call eft thyfelf John by the name of baptf/n, whom 1 held by
the hand, that jalfly upon me thou haft lied-, and for this thou
heft, that I who call myfelf Thomas by the name of baptijm, did
not felonioufy murder thy father W. by name - So help me
God; (and then he kifles the book and fa?s) and that I will
defend againft the by my body, as this court fhall award. And fo
the appellant is (Worn in like manner.
[Where we obfei^ve alfo the genuine foundation, as it Teem-
eth, of the word lie being {bill efteemed fo great on affront above
all others, as whenever it is pronounced, to caufe an immediate
affray and bloodfhed.J
Where an oath is adminiftered by a perfon that hath lawful
authority to tender the fame, and it be afterwards broken, yet
if it be not in a judicial proceeding, it is no perjury, nor pu-
nifhable by the common law. 3 lnfl4 166.
Therefore if one call another a perjured man, he may have
an a&ion upon the cafe, bccaufe it fhall be intended to be con-
trary to his oath in a judicial proceeding; but for calling one a
forfworn man, no tidhon lies; becaufe the forfwe«ring may be
extrajudicial, and confequently no perjury in law. 3 Injl. 166,
II. Oaths prescribed by the laws of this commonwealth.
1 hefe are very numerous, and vary as rnuch as the feveral
lafes in which they are diredted to be taken. But as few per-
funs are'authorifed to adminifter them, who are not furnifhsd
with the body of the laws, 1 fhull only refer to the feveral laws
Which have made them neceffary, and where the forms are ei-
ther prelcribed by the legiflature itfelf, or can very readily be
compoled by the perfon who is to administer them.
Note: The references are to the Reviled Code printed in 5 794,
and to the pages and fediions, without regard to the chapter or
year of the commonwealth.
/bhuiniftrator.—O^xh of adminitlratnr. V. I. p. 172. § 31.
Iu what cafes their oaths fhall be varied. See § 14 tf
/liens.—To take an oath of fidelity before any court Af re-
toid, a certificate of which is to be tranfmitted by the clerk to
ll)e executor. V. I. p. 216* § 2.
Allegiance, or Fuklitx. Oath of. V. 1. p. 6i. § r..
C of a decedants eftate. To uko an oath. p*
f i 74* § 3^*
/ppraijcts, j of property taken'in execution, i o take an oath#
I' F. i. p. 312. ^ 28
Stormes.-*-b oim of their oath. L f. 62. § 7.
Full.ft
332 O A 1' H S.
JPQllojl-rrafters.—To take an oath. V.l.p* 214*
Cattle.—Drivertoproducea manifeft ondath. V. l.p. 285.57.
Certiorari.'—A perfon pensioning for a certiorari to make
Oath of the truth of the allegations. V. /. p. 88. § 49.
Comniijfioner if taxable property. Form of his oath. V. /, p,
136. §. v.
Councillor.—The form of the oath of a privy councillor. V,
/. p. 61. § 5.
Coroner.—Form of his oath. V. I. p. 132. § 5.
Debtors infolvent.—The form of their oath. (See Infolvents.)
ELftions.— Commiffioners to take depofitions on conceited
ele&iofts, to take an oath. V. I. p» 46. § 2.
- ■ Clerk of the polls to take an oath. V. I. p. 23, § 8.
Electors, for delegates andfenators. Form of their oath, F. I.
/>. 24. § 10,
Flour.—Infpe&ors of flour, the form of their oath. [See Flour)
Governor.--'-Form of his oath. F. I, p. 61. § 3.
Jurors.—The form of the oath of the grand jury. K /. p.
l07* § 3-
Porky beef pitchy tar, & turpentir^.-A.Seller or exporter of
thofe articles filled in this commonwealth, to make oath be-
fore a juftice of the peace, at the time of delivery, that they
are the fatpe barrels that were infpected and palfed, and that
they do contain the full quantity, without alteration, to his
knowledge. V. 1. p. 254. § 6.
IV. Oaths of ififidels.
A Jew is to be fworn on the old teftament, and perjury upon
the flatute may be afligned upon this oath. 2 Keb. 314,
H. 2 G. 2. Gomez Seua and 'Munez. Upon error in debt
upon a bond, the bail being both Jews were fuffered to put on
their hats while they took ibe each. Sir. 821.
At the council, Dec. 9. 1738. Prefent the two chief jufiiccs.
On a complaint of Jacob Fachina againft general Sabine as go-
vtrnor of Gibraltar, alderman Ben AdonJ'o, a Moor, was pro-
duced as a witnels, and fworn upon the Koran. Sir. I J04.
So in the cafe of Omichund againft Barker, H 18. G. 2. in
the court of chancery, the depofitions ef feveral perfons who
were heathens of the Gentou religion, fworn after their owrf
country manner, were admitted to be read. 2 Eq. Cas. Abr.
397^ * <<'iL
Concerning the offences of profane curling and fwearing, lee
tide Swearing.
III.
OATHS. 333
III. What solemnities may be used injlea'd of oaths*
By F. I. (17 R. Cond. 1792, ch. 57. § 8) p. 62. 4 Any per-
4 foa refuhng to take an oath/ &c. (here infert the above iedtion}
ORDINARIES.
THE mode cf licenfing, the qualifications* and regulation^
of Ordinary- keepers are pointed out by F. I. )\J R. Condi
1792 ch. 107)) page 211, of the Revifed Code.— Bu" , the
feveral perfons intereftcd in a knowledge cf that law, can cafily1
refer to the a& itfelf, I fhall only add precedents, for the cafes
tinder it which are cognizable by a fn g!e juftice of the peace.
Warrant for taking more than the legal rates,
on seel. 3.
county to wit.
■JCher ens complaint is this day made to me J P, a juflice of the
peace for this county, by A J, that on the dry cf ' la/I
pa/f AO, j/ an ordinary keeper in this cot nty diddem md
and take from him the (aid A J, a greater price for d> ink, diet &c.
(as the cafe may b:) than is allowed by the rates ejiahlijhed by the
court of this county. Thefe are therefore to rtquire you to fummon
the faid A O, to appear before me, or fame other juflice of the
peace for this county, to (hew caufe xvhy the penalty of twelve dol~
lars Jhould not be levied upon him for the faid offence according to
law. Given &c.
By the 7th fecfion of the above recited law, 4 Every juftice
4 of the peace is required and itridily enjoined to caufe this a£fc
4 to be put in ftridt execution within his county.*
4 And if any juflice either from information, his *ov/n
* knowledge, or other ju'f caufe, (hall fufpedt any perfon of
4 keeping a tipling houfe, or retaifirg liquors, as aforefaid, he
4 is hereby empowered, and, required to fummon fuch perfon to
4 appear before him, together with fuch witnefles a* he may
'judge necreflary; and upon the perlbns appearing, or failing to
4 appear, if the juftice, upon examining the witneiies upon oath,
4 (hall find fufficsent caufe, he may, and is hereby required to
4 dire£t the attorney for the commonwealth in fuch counrv to
4 fliture a profecution againlt fuch perfon on* the public HehJf,
4 which fuch attorney is hereby required to inftituie accor Jingly.
And
Rr
334
ORDINARIES.
* And fuch juftice may alfo caufe the perfon To fufpe&pd, to give
* bond with two fufficient fecurities, for his or her good behavi-
4 our, for the term of one year, the principal in the fum of one
4 hunt red and fifty dollars, and the fecurities in the fum of fc-
4 venty five dollars each; and upon failing to give fuch
4 bond and fecurity within three days, af.er being thereto re-
4 quired^ fuch perfon may be committed to the jail of the county,
4 there to remain until he or (he fhall give bond and fecurity ac-
4 cordingly, and if fuch perfon fhall afterwards during the faid
term, keep a tipling houfe, or n tail liquors as aforefaid, the
4 fame fhall be, and is hereby declared a breach of good behavi-
4 Ou.4, and of the condition of fuch bond/
(A) Summons to hring a perfon, fufpe&ed of
keeping a tipling houfe, or retailing fpirituous
liquors without licenfe, before a magiftrate.
to wit.
Whereas I have juji caufe to fufpebi, from fnv own kmvbkdge
(or from the information of A J,) that AO, of this county doth
keep a tipling houfe (or doth retail fpirituous liquors without It-
cenfey firjihad and obtained\ as required by law:) 1 hfe are
therefore to require youy in the name of the commonwealth, to fum-
inon the faid A O, to appear before me at on the day of
next, to anfwer the prcmijesy and further to be dealt with
according to law. Andfummon alfo A W, B W, the. to appear
as witneffes, on behalf of the commonwealth in this cafe, at the
time and place above mentioned,. Given under my hand and fealtie.
To eonftable.
fBj Recognizance.
(The recognizance may be in the form (A) under title 4 Re-
cognizance,' the principal in 150 dollar?, and the fecurities itf
75 dollars each) with the following condition.
The condition of this recognizance is fuch, that whereas the
above bound A O, hath been duly convifted before J P, one of the
commonwealth's juflices of the peace for the eounty of for keep-
ing a tipling houfe (or retailing fpirituous liquors without licenfe)
within the faid county, within months lajl pajl, contrary ti
the a£l of the General Affembly in that cafe made and provided.
Now if the faid A O, jhall be of good behaviour for and during
the term of one yeary next enfuing the date hereof then the above
recognizance to be vcidy elfe to remain in full force.
(Q
ORDINARIES.
335
(CJ Mittimus for want of fureties.
to wit,
To conftable, and to the keeper of the jail in the faid county.
Whereas on the day of left paft, AO, j/ this county
labourer, was auly convicted before me J P, one of the common -
wealth's jujlicis of the peace for the faid county, by the oaths of
A VV, B W, &c. of keeping a tipling houfe (or retailing fpiiitu-
tits liquors without licenje) within the county afoi-efaid, within
months if pafi, contrary to the a£l of the General Gff'embly in th >t
cafe made and provided; and the faid A O, havingfailed, within
three days after the date of the conviflion aforefaid, to enter into a
recognizance with tzvo fujficient fecurities, himfelfin the fum of one
hundred and fifty dollars, and his fecurities in the fum of feventy-
five dollars each, for the faid A O, being of the good behaviour
for the term of one year, thence next enfuing\ and the faid A O,
now before me having refufed to find fuch fecurities: Thefe are
therefore, in the name of the commonwealth to command you the
Jaid confiable forthwith to convey the faid A O, to the jail if this
county, and to deliver him to the keeper there together with this
precept: And I do, \n the name of the faid commonwealth, hereby
command you the faid keeper to receive the faid A O, into your cuf-
tody, in the faid. jail, and him there fafely to keep, until he fhall
find fuch fecurities. as aforefaid, Given under my hand andjeal &c.
fDJ Directions to the attorney for the common-
wealth, to inftitute a profecution, again#
the keeper of a tipling houfe, or a re-
tailer of liquora without licenfe.
to wit.
Whereas upon the examination of A W, B W, &c. this day.
taken upon oath befo> e me. j P, one of the commonwealth1 s jufiices.
of the peace for this county, it appear$ to, me that A O, of the.
county' of afore faid, is guilty of keeping, q tipling houfe (or of
retailing fpirituous liquors without licenfe:) Thcfe are therefore
in the name of the commonwealth, and by virtue of, the powers to
me given, by the feventh feftion of the aSl of the General Affembly
entitled, 4 An a ft for regulating ordinaries, and refraint of tipiing
' houfesf to. require you to inflitute a profcuiion agqinft the jai$„
AO, on the public behalf. Given (Ac.
To A A, Efq. attorney for the common- ?,
wealth, in the county of y
Orphans. (See APPRENTICES.)
Qverteers of the poor. (See POOR,,) Par4on».
336
P A II D O N.
A PARDON is a work of mercy, whereby the executive
cither before the attainder, Ibntence, or conviction, or
alter, forgiveth any crime, orfhw.e, punifhment, execution,
right, title, debt, or duty, temporal or eccleiiaftical. $lnjl. 233.
Pardons are either general or Jpecial; General, are by aCt of
AflemHy; of which, if they are without exceptions the court
mult: take notice ex oJficio\ but if there are exceptions therein,
the party muft aver that he is none of the perfons excepted, 3
Injl. 233. HaL's PL 252.
Special pardons, are either of courfe, as to perfons conviCted
of manflaughter, or fe defendendo, and by-divers ftatutesto thofe
who fhall difcover their accomplices in ftveral felonies; cr, of
grace, which arp by the executive's charter, of which the court
cannot take notice ex ojficio> . but they muff be pleaded. 3 InjL
233- •
. I he executive cannot pardon an offence before it is commit-
ted ; but fuch pardon is void. 2 Haw. 389.
■ As the releafe of the party wiil noc bar an indiSment at the
fuit of the commonwealth; fo neither will a pardon by the exe-
cutive be any bar to an appeal at the fuit of the party. 2 Haw. 392.
And in feme cafes even where the commonwealth is fole par-
ty, lb me things there are which it cannot pardon; as for exam-
pie, for all common nuilances, as for not repairing of bridges or
highways, the fuit (for avoiding multiplicity of fuits) is given to
the commonwealth only, for redrels and reformation thereof;
bnt the executive cannot pardon or. difcharge either the nuifance,
or the fuit for the fame, becaufe fuch . pardon would take away
the only means of compelling a redreft of it. But it hath been
holden by fome, that a pardon of fuch an offence will lave the
party from any fine, far the time precedent to the crime. 3 Injt.
237. 2 Plaw. 391. * '
Thus alfo, if one be bound by recognizance to the governor,
to keep the peace againft another by name, and generally alj
other citizens of the commonwealth; in this cafe, before the
peace be broken, the governor cannot difcharge or releafe the
Recognizance, akho' it be made only to him, becaute it is for
the benefit and fafetv of the citizens generally. 3 Injl.-238.
, Likewife, after an action popular is brought, as well far the
iommonweaLih as for the informer, according to any ftatute; the
commonwealth can but difcharge its own part, and cannot dif-
Charge the informer's part; becaufe by bringing of the action,
the informer hath an intereft therein: but before the adtion
brought, the executive may difcharge the whole (unlefs it be
provided to the contrary by the a£t) becaufe the informer cannot
Jupig an adtjon $r information originally for his part only, but
•muft
PARDON.
mull purfue the ftatute. And if the adion be given to the party
grieved, the executive cannot difcharge the fame. 3 Infl. 231.
It feems to be fettled at this day, that tthe pardon of treafon
or felony, even after a convidion or attainder, doth fo far clear
the party from ■ the infamy and all other confequences of his
crime, that he may not only have an adion for a fcandal, in cal-
ling hint traitor or felon, after the time of the pardon, but may
alfo be a good witnefs, notwithftanding the attainder or convic-
tion, becaufe the pardon as it were makes him a new man, and
gives him a new capacity and credit. 2 Haw. 395. 4 Blacks
Cam. 395. ^ ^
But it feems to be the better opinion, that the pardon of a
convidion of perjury, doth not fo reftore the party to his credit,
as to make him a good witnefs; becaufe it.would be an injury
to the people in general, to make them fiibjed to fuch a perfoits
teilitr.ony. 1 Vent. 349.
And by the laws of this commonwealth, a perfon convided
of perjury is forever difabled from being a witnefs. See title
4 Evidence
■After a criminal has been burnt in the hand, the punifliment
-operates as a pardon; and he becomes a good witnefs. Raym.
370. See V. L p. 288.
A pardon may be conditional, on the performance of which,
the validity of the pardon will depend. 4 Blacks Com. 394.
Every pardon ought to mentjon the offence particularly. 2
Hawk. 383.
No pardon of felony fhall be carried further than the exprefs
purport of it. 2' Hawk. '383.
No pardon can operate fo as to bar any right, whether of en-
try or adion, or any legal intereft, benefit, or advantage what-
foever, before veiled in the citizen. 2 Hawk. 392.
PARTITION.
By/'. /. (il R. Cond. 1786. ch. 24. § 7.) p. 35, of'the
Revifed Code. 4 The under IherifF, when the highr{heriff can-
4 not conveniently attend, may in prefence of two juftices of the
* peace, proceed to the execution of a judgment in partition, by
f ir.quilitt«n in due form of law, and the high fheriff {hall make
* the fame return, as if he had aded in perfon.'
' For other matters refpeding partitions, and joint rights and
•bligations, fee the above law. .
Peace. (See SURETY for the PEACE)
Perjury
J38 PERJURY and SUBORNATION.
I Of perjury and tub' rnati on by the common law «
II. Of perjury and subornation by the aft of
jlfembly.
III. Of matters common to them both.
L- Of perjury and fubornation bythe commonlaw.
TJERJURY by the common law feemeth to be a wilful falfe
JL oat by by one who being lawfully required to depofe the truth
in any judicial prtceedingy [wears abfolutelyy in a matter material
to the point in quejtioiiy whether he be believed or not. 1 Haw.
172. 3 Inft. 164.
Wilfulj The falfe oath alledged againft him ftiould be proved
to be taken with fome degree of deliberation; for if upon the
whole circumfiances of,the cafe it fhall appear probable that it
was owing rather to the weaknefs than perveifenefs of the party,
as where it was occafirned by furprize, or inadvertency, or a
miftalce of the true ftate of the queftion, it cannct but be hard
to make it arnoqnt to voluntary and corrupt perjury. 1 Haw. 172.
Falje] it is faid not to be material, whether the fad: which
was iworn, be in itfelf true or falfe; for however the thing fworn
irtay happen to prove agreeable to the truth, yet it it were not
known to be fo by him who iwears to it, his offence is altoge-
thcr as great as if it had been falfe, inafmuch as he wilfully
fwears that he knows a thing to be true, which at the fame time
he knows nothing of, and impudently endeavours to induce
thofe before whom he fwears, to proceed upon the credit of a
depofition, which any liranger might make as well as he. 1
Haw. 175.
Being lawfully required'] It feemeth clear, that no oaffis what-
foever, taken before perfons adling merely in a private capacity;
or before thofe who take upon them to adminifter oaths of a
public nature, without legal authority; or before thofe who are
legally authorized to adminifter fome kinds of oaths, but not
thofe which happen to be taken before them; or even before
thofe who take upon them to adminifter juftice by virtue of an
authority fecmingly colourable, but in truth unwarranted and
merely void, can amount to perjuries, but are altogether idle
and of no force. 1 Haw 174.
In any judicial proceeding] For tho* an path be given by him
who hath lawful authority, and the lame is broken, yet if it be
not in a judicial proceeding, it is not perjury, becaufe fuch oaths,
are general and extrajudicial; but it fetves for aggravation of
the oiFence Such are, general oaths given to officers and mi-
nifters of juftice, the oath of fealty and allegiance, and fueh like.
; Thus
PERJURY and SUBORNATION, ,19
Thus if an officer commit extortion, it is againft his general
Oath, but yet not p' rjury, becaufe not i a judicial n >ceeding,
but when he is charged with extortion, the breach of his oath
may ferve for aggravation. 3 lnjl. 166.
It a perf n calleth onother perjured man, he may have his
a£tion upon his cafe, becaufe it muft be intended contrary to his
oath in a judicial probceeding, but for calling him a foifwom
man, no a£lion doth lie, becaufe the forfwearing may be extras
judicial. 3 Infi. 166.
Swears abfolutely] For the depofition muft be dire ft and ab-
folutej and not, as he thinketh, or remembereth, or believcth,
or the like. 3 Infi. 1 66.
In a matter material to the point in que/lion\ For if it be not
material, then tho' it be falle, yet it is no perjury, becaufe it
fconeerneth not the point in ififue, and therefore in effect k is ex-
Injudicial* 3 lnjl. 167.
But it is not necefiary that it appear to what degree, the point
m which a man is perjured, was material to the Blue; for if it
isbutcircumftantially material, it will be perjury. L Raym. 238*
, Much lefs is it necefiary that the evidence for the plaintiff to
Recover upon, for in the nature of the thing, an evidence may
be very material, and yet it may not be full enough to prove
diredlly the point in queftion. L. Laym 889,
Whether he be believed or not] It hath beeii hplden, not to bp
material upon an indictment of perjury at common law* whether
the falfc outh were at all credited, orAvhether the party in whofe
prejudice it was intended, w. re in the event any way aggrieved
by it or not; infomuch as this is not a profecqtion grounded on
the damage of the party, but 0:1 the abufe of public jimice* 1
Haw. 177.
Subornation of perjury, by the common law, feems to be an
offence, in procuring a man to take a falje oath, amounting to per-
/ary, who aSlually taketh fuch oa'b. 1 Haw. 177.
. But it feemeth clear, that if the pcrfon incited to take fuch
an oath, do not actually take it, the perfon by whom he was
incited is not guilty of hibernation of perjury; yet it is certain,
that he is liable to be puaiihed, not only by line but alio by in-
famous corporal punifbment* id.
Mr. Hawkins fays, it hath been of late fettled, that jufticeS
of the peace have no jurifdiclion over perjury at the common
lav; the principal re Ton of which refolution, he fays, as he ap-
fchended, was, that inafmuch as the chief end of the i-nfiitution
t f the office of th«fe jufiiees was, for the prefervatiou of the
p-ace again ft perfona' wongs and open violence, and the word
trejpajs (in the commiiiion) in its rnofr proper and natural fenfe,
is
34° Perjury and subornation.
is taken for fuch kind of injuries,, it (hall be underftood in that
fenfe only, or at the moft to extend to fuch other offences only,
as have a direct and immediate tendency to caufe fuch breaches
of the peace: as libels and fuch like, which on this account have
been adjudged indictable before juftices of the peace. 2 Haw, 40.
And in the cafe of IC. and Bainton, E. 11 G. 2. An indidt-
mer.t at the quarter feffions for perjury at the common law, was
quafhed for want of jurifdidiion; and was faid to have been done
fo about three years before, in the cafe of K, and Wejlinejs. Sir.
1088.j
ii. Of perjury and fubornation by theacl of
A 0embly.
By V\ /. (14 R.^Cond. 1789. ch, 48. § 1, 2.) p. 51. it is
enacted, <1 That all and every perfon or perfons he,*
(here infert fedtions 1 & 2 of the above law.
The following determinations have been made on ftatutes of
England nearly fimilar to our adt of AfTembly.
Any witnefsJ If the defendant perjureth himfelf in his anfwer,
in the chancery, or the like, he is not punifhable by this fta-
tute; for it extendeth but to witnefles. 3 Inf. 166.
-But he is punifhable for the fane by indictment at the com-
mon law. Bun Mansf, 1189.
By any writ, a El ion, bill, complaint, or information] It hath
been refolved, that thefe words are to be extended to the latter
claufe concerning perjury, as well as to this concerning fubor-
nation; becaufe it cannot well be intended, that the makers of
the adt^ who inflidt a greater penalty on fubornation of perjury,
than on the perjury itfelf, fhould mean to extend the purview of
the law in relation to what they efteemed the lelTer crime, far-
ther than in relation to that which ihey efteemed the greater. 1
Haw. 179. 5 Co. 99..
It hath been faid, that he who fwears a thing which is true,
but not known by him to be fo, is not within this ftatute; be-
Caufe howfoever heinous his offence may be in its own nature,
yet when it proves In the event to be in maintenance of the
truth, it cannot be faid to give him a juft caufe of complaint,
who would take advantage again ft another from his want of le-
gal evidence to make out the juftice of his caufe. Alfo from the
fame ground it feemeth clearly to follow, that no falfe oath can
be within the ftatute, unlefstthe party againft whom it was lworn
fuffered fotne kind of difadvantage by it; for otherwife it cannot
be faid, that any ene was grieved by it. And therefore that in
every profecutiOn upon this ftatute, it muft appear upon the
PERJURY and SUBORNATION. 34i
that there was fuch a fuit depending wherein the p?rty might
be prejudiced in the manner fuppofed. I Haw. 181.
Either by jubornotion or otherwife] It is not necefiary to ff£
forth in the indictment, whether the party took the falfe oath
thro' the fubornation of another, or without any fuch fubornati-
on, theie words being only fu peril uity. i Ilaiv. 179.
Wilfully and corruptlyJ Thefe words are neceilary in an in-
diftment or action 011 this ftatute, and cannot be fupph'cd by
adding agairjl the form of the llatute, or by concluding and fo a
wilful and corrupt perjury did commit, 1 Haw. 178.
But becaufe the profecution upon this ftatufe is more difficult
than by indi&ment at the common lav/, offenders are feh'oin
profecuted upon this ftatute, efpecially at the feilionsj and it
feems generally the fafer way to proceed by indictment at the
common law.
A perfon may commit perjury in giving falfe teffirnor.y before
commillkmers for taking depolkions on a contefted election. lr.
I p. 24.
III. Of matters common to them both. .
The court generally" will not qusfn an indictment for a enme
of fo enormous a nature as perjury, fc r infufficiencv in the c 'p-
tion or body'of it, but will oblige the defendant eitner to pi<-ad
or demur to it. 2 Haw. 258-
To convict'a man of perjury, a probable evidence is not
enough; but it mutt be a ltrong and clear evidence, and the
witneffes muft be more numerous than thofe on the inle of the
defendant, for otherwife it is only oath againit oath. 10 ilood.
194-
And the party prejudice** by the perjury, Ihall not be admitted
to prove the perjury. L. Raym. 396.
It feems that the court will not ordinarily at the player of the
defendant grant a certiorari for the removal of an if dictrmnr of
perjury; tor fuch a crime deiervts all pofiible difcounfenanct,
anti the certiorari might delay, if not wholly oifcouiage the pro-
feciition. 2 Haiv. 287.
The punishment ot iiaves ccc. for perjury may be feen under
title 4 Slaviid
Indictment fcr perjury by a woman before a in dice
in s-re earing a bajtard child to an innocent persen.
county to wit,
The jurors for the commonwealth upon their oath prrfent,
6 f 1 hat
344 PERJURY and SUBORNATION.
That Sarah, the wife of J C, late cf the parifh of in the
faid county of yeoman, being a wicked and evil difpoled
perfon, on the day of in the year of the coin-
monwtaUh, at the parifh aforefaid, in the county aforefiid, came
in her own proper pe Ton before J EI, efq. then being one of the
jultices of the peace of the faid commonwealth, affigned to keep
the peace of the faid commonwealth,-within the faid county of
and alfo to hear and determine divers felonies, trefpaifes
and other mifdemeanors in the faid county committed; and did
then, and there, before the faid juftice, charge one PL, of the
pariih aforefaid, grocer, with having lately before that time,
and whilft (he the faid S, was fole and unmarried, begotten
upon the body of her the (aid S, a certain male child, which was
afterwards born alive of the body of her the faid S, a baftard.
And the jurors aforefaid upon their oath aforefaid, do further
piefent, That the faid child, by the laws of this commonwealth,
was born a baftard, and that (he the faid S, was then and there
before the faid juftice duly fworn, and did take her corporal
oath upon the holy gofpel of God concerning the faid premifes
(the (aid juftice, then and there havirg fufficient and competent
power and authority to adminifter th* faid oath to the faid S:J
and that the faid S, being fo fworn as aforefaid, not having the
fear of God before her eyes, but being moved and feduced by
the inftigarion of the devil, and wickedly and malicioufly deviling
and intending faifely and unjuftly to charge and burthen the laid
P L, with the maintenance and fupport of the faid baftard child,
and not only to draw him into great charge* and expence of his
moires, but alfo to bring him into great fcandal, infamy, and
difgrace as a lewd and unchafte perfon, then and there, upon
her oath aforefaid, in a certain examination before the faid juf-
tice, taken in writing in that behalf,^did faifely, malicioufly,-
wilfully, wickedly, and corruptly (ay, depofe, and fwear (amdngft
otbt's things) in fubtiance, and to the eifcci following, that is
to fay, that on the day of laft (meaning the
day of in the year aforefaid,3 when (he (meaning
berk'.f the faid S,) was a fmgle worrun, P L, (meaning the
faid) had &c. (here jet out jo much cf the examination as can be
f roved to be falfe j) and fo the jurors aforefaid, upon their oath
aUireiaid do fay, That the (aid S, on the faid day of
in the year aforefaid, at the parifh aforefaid, in the county
afoiclaid, before the fait5 J K, the juftice aforefaid (fo as aforefaid
having luflicient and competant power and authority to admini-
fter the (aid oath to the faid S) faifely, malicioufly, wickedly,
Wilfully, and corruptly, in manner and form afoief.ir, did com-
mit wilful «-nd corrupt perjury, to the great difpleaiure of Al-
mighty
PERJURY and SUBORNATION. 343
jnigl fy God, to the grrat damage of the fdd P L, to the evil
and pernicious examp e of all others in the like caf* offending,
and agamfi the peace rtnd dignity of the commonwealth.
PILLORY.
PILLORY is derived from pilafiexe. a pillar; becaufe it is
a wooden pillar wherein the neck of the offender is pet and
prdfedj. a punifhmcnt iaflifted on perfons guilty of forgery,
perjury, cheating by means of fome artful device, and by Lveral
ads of Affembly on other offenders therein particularly nienti-
oned. 3 lnft. 88.
This kind of puniihment is very ancient, having been in ufe
among the Saxonsy and is held fo infamous, that lord Coke Lvs,
thofe who have been adjudged to fuller it are not to be received
as witneffes, or jurors; lor which realbn he advifes junices of <.ue
peace to b.e well a-lvifed before they adjudge any pet ton to the
p'liory, and to have good warrant for their judgment, fine
ana imprifonmcnt, for offences finable by them he recommends
as a fair and lure way. 3 tnft. 219.
Pitch. (See P( 'RIv, Sic,
Plague. (See QU RANTINE)
Polygamy. (See BIGAMY.)
Potion, (See HOMICIDE.)
P O O R.
fTlHE aft making provifionfor the fuppcrtof the,poor, being
J[ now collected in the Reviled Code, and of confiderable'
length, I thai! refer to the law ttfelf for fuch particular informal
lion, as any pcri'on intereffed may vvifh to derive;—and inferc
fuch precedents ariilng out of it as may be necelLry for the le-
veral perfons concerned in its execution See V, L (17 R, Cond,
1792. ch. 102) page 189 of the Revijed Code.
f /{) Warrant of a jujiice to bring a person before
him to be examined concerning Lis
settlement on section 7.
To the conffable of in the county of
county to wit.
Wksrstts complaint hath been made bejoie ms JP, one of the,
• commonwealth's,
344 POO R.
commonwealth*s juflices of the peace for the fald county, by A O,
one of the overjecrs of the poor of the county of aforejaid, that ■
A P, hath come to inhabit in the faid county, not having gained a
legal fettlement therein, and is likely to become chargeable to the
J aid cowity. Ehefs are therefore to require you to bring the faid
A P, before me to be examined concerning the place of his la ft legal
ftilcrnc.it, and to b' farther dealt with according to law. Given
under my hand and f al the day of in the year and in
the year of the commonwealth.
It has been the conllartt practice in England\ where the power
of removal luim one county to another is given, in caie of the
illegal fett'tuivnt of a pauper, to Onimon the overfeers of the
p'vr tf the county, (to vthich iris prop-fed to remove him) to
appear, (or fnne of tueui) at a certain time and place, to con-
tell" toe propriety of the order.
This is not only confonant to the principles of natural juhice,
which will not fuller any party to be condemned un iecrd, but
if ilridtly attended to might prevent an app'ication to the county
court, who are now authored to detcimine on the legality of
me pauper's refidcoce. See Eurn's jfu/L 3 Vol, p. 530.
Sammo is to fieiv cause againft an order of removal.
countv t-o wit.
jTo the overf eers cf the poor of diftritf, in the county of
and to every of them.
This Is to fummon you, or fome of you to appear (if you
fha'l think proper) before or fome other juitice ot the peace
for the faid county of at the houfe of in the faid county
of on the day of at the hour of in the af-
ternoon of the fame day, to (hew raufe why A P, fhould not be
removed from diilridt in the county of to your dif-
tridf in the faid county of Given under my hand and feal,
this day of in the year
(B) Form of a?i order of removal.
county to wit.
To the oveifecn of the poor of diftrift: in the faid county,
and to the overivers of die poor of dihri& h» the county of
and to each ut.u -very of them.
Whereas co nplahit Lath been made by A O, one of the overfeers
of the poor d d.frid in the county of ' aforefaid, bfote me
J i'3 a iuftice of tht £<.uces in andfor the faid county of that
AP,
p. O O R. 345
, 1
A P, a poor p erf on hath come to inhabit in • difirihf in the /aid
county of not having gained a legalfettlement there, and that
the jaid A P, is likely to become chargeable to the faid county of
( : and forasmuch as, upon due proof made thereof as welt
upon the examination of the Jaid A P, upon oath, as othertvife,
and likewife upon due confideration had of the premifes, I do ad-
judge the jaid complaint 'to' be true^ and do likewife adjudge that
the lajl legal fettlement of the faid A P, 'was in difiritt, in, the -
faid county of " ' 7 herefore^ I hereby require you^ the faid over-
feers of the poor of this faid county of . or fome> or one of you,
to convey the faid A Pj from/and out of the faid difhiftx in
this faid county of . ' ' to the faid dip.ritt, in the faid coun-
ty of and him to deliver to the over feers of the poor there, or
to fame or one of them together with this orders or elfe a true copy
thereof jh swing to them at the fame time; the original: And i do
elfo hereby require you the faid overfeers of the poor, of the faid
diftridf in the faid county of'. ' to receive and provide
for him as an inhabitant of your faid. county, ' Given under my
hand andfeal &c, ' . . ' ' * • *
See the form of an order of removal in 3 Bum's jufiice pap; 2
531 &c„where the form is fettled from various adjudications
made on exceptions taken to the different parts of orders. '
fCJ Warrant again/} an overseer of the poor j^r
failing to attend at an annual meeting on § 20.
county to wit.
Whereas complaint hath been made to me J P, a jufiice of the
peace for the faid county^ by AJ> that AO, an oveifer tf the
poor for • difiridt in the county aforefaidy did fail to attend
at an annual-meeting of t hew erf ears, of the poor for the faid county
of '' held at in and for the faid county of on-the
day of la [I pa/% having ho reafinable exc'ufe for the fame:
Ihefe are therefore to require you to Jmnrnon the faid A O, to ap~
fear before me or fsrne o'dher jufiice of the peace for the faid county^
Of, ). to Jbeiv caufe vchy the penalty of two dollars for each day
he fo failed to attend.\ Jhould not be levied upon him for his Jaid of-
fence, according to law. Given &c.
To . conltable. ■
(D) Order., of two magiilrates of, a corporate,
town, for the removal of a poor perfon into
the courity, en section 27*
Corporation of - to wit. Upon-
316
pool*.
Upon complaint this dty made to us J P, id K P, two of the
magift-ate* for th>. co*-po~ation a fore faid, by A J, of the fuj. cor-
pora+iod) that A ,J, a poor perlon, hath come to inhabit in the fid
corporation, not having gained a legal fittlement there, nor been
refUent within the limits of the jaid town, for one year I off pa [I,
and that the faii A P, is likely to become chargeable to the fid
corporation: li e the jaid magiftrates ufon due proor made there f
cis wed upon the examination cf the Jaid A P, ubon oath, as otter-
wye, and likewife upon due confideration had of the pr^mtfs, do
a fudge the fame to be true-, and we do likewife adjudge, that the
lawful fettUment of him the faid A P, is in the dijiricl of in
the county of : We do therefore require )ou, to convy the
Jaid A P, from and out of the faid corporation cf U the fad
dtjhidi tn the Jaid county cf and him to deliver to the
over jeers of the poor there, or to j'orne or one cf them, together with
this our order, or a true copy thereof, at the feme time jhewin* to
them the original: And ive do alfo hereby require you the ja.d
everfets of the poor of the fad dtftrift in the j nc county of
to receive and ptovide jar him as an inhabitant of your tifh id in
the jaid county of . Given under our hands and faii die.
To to execute.—And to the eve* Jeers of the poor of
diilridf in the county cf and to each and every of them.
(E) Order of two overfeers of the poor, to re-
move a poor perfon, from the country
into a corporate town.
county to v»:t.
Whereas comblaint hath this day been made to us A O, & B 0*
two of the over jeers of the poo*- in and for the county aforef;id, by
A J, that A P, a pr>or perfon hath 'come to inhabit in the faid
county of not having gained a legal fettle men: there, and that
the J tid A P, is likely to become chargeable to the diftriSt of ' in
thi faid county of : We the faid, ovefeers of the poor upon due
proof made thereof, as well upon the examination of, the f id h 1\
upon oath, as otberivife, and likewife upen due confide* ati on had
of the premfes, do adjudge the fame to be true; and ws do likewije
adjudge that the laufulfettle ment of the faid K P, is within the
corporation of it appearing to us fiom due proof, that the re-
fidence of the faid A P, for one year liijl pajl, was within the limits
ef the faid corporation of : We do therefore require you, to
convey the faid A P> from and out ef the faid aijtritt, in the
aid county of to the faid corporation of and him to de-
iver to the ma gift rates oj the faid corporation of there, op
p <5 o ii.
347
to home or one of them, teguf'er niih this our e'"r,"m or a true co~
p to, ' .-of, at the fame time fnewlng to ihtm 'he o f-'-.d: /bid
sxe do afo hereby reqvb e you the >n ■■ fif rates of the laui corpor ition
to receive and fmo-'dde for him as a i inhabitant f you- Jcv i corpo-
rnh'i. Given unaer our hands and feats the day of
hi the year and in the year of the ..onimomvealtb.
do to execute. And to the mugirtrates of the cor-,
poratlon of
Note;—in all cafes where a man, his wife, and children are
removed; or wherever a parent, and a chdd r children aie re-
moved, the age, and fexes of the children, mult be particularly
mentioned, as well as the names of the parents and children, if
known; if not, drfcribe them as pe?fons of fuih agesy and fexesy
whofe names are unknown. See various irdtafcees in 3 Burn's
JuJiice 536 occ. where orders have been qualhed for iuch ornif-
lions,
The a&s which will conftitute a legal fettlement in this (late
feeing but few indeed in comparifon to thofe cf England, much
of the dodtrine relating to the poor laws which has employed the
attention of fo many writers in that country, is ufelefs in this
commonwealth. For by V, I. (17 R. Cond. 1792. ch. 102. §
35) Page J95« 1 No perfon fhall be accounted an inha< itant fo
1 as to have gained a legal fettlement, until fuch^peifon final L
' have been a&ually refulent, in the county wherein he fhall
* claim a legal {ettleirient for the fpace of one whole year.'
Mr. Starke {Virginia ju/Iice p. 278) feems to think that a
fettlement may alfo be acquired by birth and marriage, ahho*
not mentioned in the a<5t of Aflembly.—See 3 Bumdjufi. 360.
455.
By the 8th fei£tion of the above law. < Where any difpute
* fliail arife refpedfing the relidence of any poor per fons, the
i court of any county adjacent, is authorikd to take cognizance
* thereof, and to determine the fame.'
The cafe with which all the nccefTiries of 'ife may be ac-
quired in this {hate, the high pnee of l-.bour, together with' the
native independence of its ciiizom, prevents an application to
the overfeers of the poor for relu f, while there is a poilibility of
fupporting human nature without it. Our proportion cf poor
then, to be provided for by the county, is and confe-
quently few, or per drips no. adjudications have yet been made on
tne fubjeit of removals. Bu: ihou'd the inervate or t ie poor at
(ome future day, when our country becomes more populous, be
fo great as to make it an object with the fevt-ral counties charged
with their fupport, to compel the:n to remain, in their proper
fcttkments, it will be found necehary to recur to the various
adjudications
3 4-8 P' O O' R.
adjudications which have been madein England on fimilar point?.
1 hcfe will be found very judicioufly arranged in doftor Bum's
j'uflkey title ' Poor,® to which I muft at prefent refer.
- Other njatters relating to poor children' will be found under
titles 1 fipfrenticesf kf 4 Bajlardsf
,—, . —
PORK, BEEF, TAR, PITCH and TUR-
' " PENTINE..
r I F'r, glnla lawSy chap. '128. page 252. of the RevifedCodeJ
n ail the afts of Allerably on this lubjeit are collefted,
/ xi) Warrant againjh an inspector on sett. 1.
county to wit.
To * ccnfiable of the faid county,
Vhereas complaint and information''hath this day been made
to me j P, a jufiice of the peace for this count)', by A J, upi;n-
oath, that L J, infpe&or of pork, beef, tar &c. within the faid
county, did on the ' day of laft (or of this, infant) fiamp,
or brand barrels of pork, the property of A M, of with
the letter L, denoting large, which faid barrels did contain
fmall pork, (or barrels of pork or beef containing lefs than
tu 0 hundred and four pounds netty—or of dirty unjound meat &c.
as the cafe may be)—or if for breach of duty againf any other
part of the faid a£ty defer ibe the offence) contrary to the aft of the
General Affembly in that cafe made and provided: Thefe are
therefore in the name of the commonwealth to require you to
c-'ufe the faid L J, to come before me or feme other jufiice of
the peace for this county, to anfwer the faid complaint. And
have then there this warrant, with your return of the execution
'of the fame. Given czc.
J u d gl m e n t .
- Uporrhearing the.wif.hin complaint, it being duly proved be-
fore me that the within named L 1, is guilty, and did &c. (or-
cording to the warrant) whereby he hath incurred the forfeiture
of four dollars for each barrel fo flampedy or branded (Jc.) if for
taty pitch 6r turpentine, ike penalty is one dollar for each barrel
nwikect &c, contrary to law) it is therefore conlidered tiiat the
within named A I, recover againft the faid L I, dollars,
being
Pork, Peef, Tar, Pitch and Turpentine. 343
being the amount of the forfeiture for barrels, together with
his cofts in this behalf expended. Given under my hand at &c.
Cofts cents.
Notej-r-That where the penalties on feveral barrels amount
to more than five dollars, (the extent of a fingle maghlrate's ju-
rildi&ion) the fame may, neverthelefs, be recovered before 4
lingle magillrate, and execution awarded for the am^ukt, Ste
§ 4-
Execution J or the penalty.
County to wit.
To ' conftable, for the faid county.
Whereas it was this day duly proved hefore'me } P, one of
the commonwealth's juftices of the peace for the (aid county,
upon the complaint of A J, that L J, infpector of pork &ic.
within the faid county, did &c. (according to the complaint) con-
trary to the aft of the General Affembiy in that cafe made and
provided, whereby he hath forfeited the fum cf together
with cents for his cofts, to the faid A J, for his own ufc:
Therefore I command you forthwith to levy the fame bydiftrefs
and fale of the faid L J's, goods and chattels, rendering him the
overplus if any; and that you pay the faid fum of together
with the cofts aforefaid, to the faid A J, and make return how
you have executed this warrant. Given under my hand and
leal &c.
Inspector s Certificate.
(Under the brand &c. of the feveral calks, on the fame piece
of paper1, write,)
county to wit.
I do hereby certify that barrels of &c. (defcrihe the
kind) marked and branded as above, is &c. (give then the qua-
litics required by the a£l) Given under my hand See. at on
the day &c.
f B ) Warrant againd the seller of perk, tar
& c, On sett ion 4.
Whereas &c (as in the firjl warrant) that A M, of in
the county of on the day of did fell to (or barter
with) N J, of , barrels of pork, (beef tar (etc. as the
cafe may be) containing only pounds (or gallons) each, (or
not branded or infpe>dedy' as the cafe may be) contrary to the act
of
T t
Fork, Eccf, Tar, Fitch and Tutpentine.
cf the General AiTembly in that cafe made and provided: Thefe
are Izc.
The judgment and proceedings as under the
firji warrant.
If the defendant prays an appeal, the juflice fhould take his
bond, with fecurity, in double the fum recovered, payable to
the plaintiff, and with the following condition:
The condition of the above obligation is fuch, that whereas
the above named A J, hath obtained judgment, upon warranty
before me J P, one of the commonwealth's juftices of the peace
for the county of againft the above bound L J, for be-
iug the amount of the forfeiture, for barreb of pork kc,
fold to or bartered with N J, of the faid county, (or not infpetled
according to lawy as the cafe may be) fr»m which judgment the
faid L J, hath prayed an appeal to the next court to be held for
the bid county of : Now if the faid L J, fhall prof-cute
the faid appeal with eftedf, and perform the court's order and
judgment therein, then this obligation to be void, elfe to remain
in full force and virtue.
The fprm of making up a record may be fee.V under tide
i Gaming.'
f C) The oath cf a selkr or exporter of pork, beef
tari pitch or turpentine.
You (ball fwear, that the pork kc. contained in barrels*
marked and numbered as above, and by you fold and delivered'
to A i\i, of (or by you delivered out to be exported to )
is the identical pork kc. which was infpecled *nd pailed by the
infpeciwr legally appointed, who marked and branded the fame
as above; and that each barrel doth contain the full quantity,
wiihout e ribezzltmen'*, or alteration to your knowledge. So
help you God.
The warrant againfl a cooper for making his barrels contrary
to the direction of the 7th fc^ion of the law, as well as for
on rtiug to idamp or hi and his name, at full length, on each
baird, may eafily be formed from the Brit warrant under this
title.
Pcfle Comitates. (STARREST.)
Prefentmcnt
PRESENT M E N T. . 3ii
A PRESENTMENT, i'; taken, is a very compre-
jt\ kenffve term j i v luding not < n y pief ntments properly
cJled but alio inqullltions of office and indictment:, by a g and
jury. A prcfentinent properly fpeaking, i: the notice taken by
the grand jury, of any offence from their own knowledge or ob-
fcrvarbn, without any bill of ind'dtment laid before them at the
fait of the commonwealth. As, the prefentment of a nuiffince,
a libel and the like; upon which the officer of the court mult
afterwards frame an indictment before T,he party pre fen ted can be
put to anfwer it. An inqutfiiion cf office is the a£t of a jury
ii'inmoned by the proper officer to inquire of matters relating to
th* commonwealth, upon evidence lard before them. Some of
thefe are in themfelvcs convictions, and cannot afterwards he
travelEd or denied; and therefore the inqueft, or jury ought to
hear all that can be ill edged on both fid s. Of this nature are
all incuiffions of fch dc fey of flights of pcrf >ns accufl d of felony
&c. Other inquifition-r may be afterwards traverfed a: d ex a-
mined i as particular1}' the coroner's inquifition "of the death of a
nan, when it finds any one guilty of homicide; for in fuch cafes
the offender fo p'efented muft be arraigned upon this inq iffi'ion,
a d may dispute the truth of it; which brings it to a kind of in-
diriment, the molt ufuai and effectual means of profecution.
4 Biticks Cum. ?,ci.
PRISON BREAKING,
Y T' feemeth that at the common law ail prifon breaches were
j_ felonies, if the partv were lawful! , in cuftody fur any caufe
vffiatfoever. 2 hatv. 173.
but by the a£t of Affiembly of 1 yqq. ch. 7. § 2, it is dechr-
ed, 1 That none from henceforth who being in adtuff jail,
* breaheth p-ilbn, (hall ha'e judgment of life or member for
'b efficlng of prifon on he except the caufe for which he wc ta-
' ben and iroprifoned, uio r- quire fuch judgment, if he had been
1 convicted thereupon a:.e<>r./m£ to the law of the land.'
If ti e prifon b- broken by a it;a"ger, and n »t by the pnf ner,
cr by h.? procurement this is no felony in the prffo'iv.r, Haie s
PI. iod.
It Hems clear, that any place whatfoever, wherein a perfon
under a lawful arret!: for a tnppoted crime is rcltnined of iris li-
berty, whether in the flocks, or ftreet, or in the common jail,
or the houfe of a conffable, or private perfon, is properly a piu
f»n, for- iinprilonmcnt is nothing elle but u reltraint of liberty.
2 Haw. 124. '
3J2 PRISON BREAKING.
And therefore this extendeth as well to a prifon in law, as to
a prifon in deed. 2 In;}. 589.
' Hut there mull be an adlual breaking-, for if the door be open,
and he goes out, it is not felony, but a mifdemeanor only. %
Injf. 589. 2 Haw, 125.
But if the prifon be fired without the privity of the prifoner,
he may lawfully break it to fave his life. Hale's PL tcS.
A!fo it feems that no breach of prifon will amount to felony,
unlefs the prifoner efcape. 2 Haw. 125.
Falfe imprifcnmt'Ki is not within this acl. 2 Infl. 59c.
Leprifonment is a reflraint of a man's lioerty under the cuf-
tody of another, by lawful warrant, in deed, or in law. Law-
ful warrant is, either when the offence appeareth by matter of
r ecord, as when the p rty is taken upon aw iud;dtm,?r, or when
it doth not appear by matter of record, as when a felony is cone,
and the offender by a lawful r.Ltthnus is coomb ted to a jail for
the lame: But between thefe two cafes there is a great diver
lityj for in the firil cafe, whether any felony were committed
cr no, if the offender be taken by force of a capias, the warrant
is lawfu', a' '1 if he breaks priluti it is felony, altho' no fel< ny
were committed; but in the other cafe, if no Li my be none at
all, and yet he is committed to prifon for a l'uppofed felony, and
break prifon, this is no felony, for there is no canfe. 2 tna. 590.
So, that the caiffe muff be juil and not ftigned, for things
feigned require no judgment: Thus if a man give another a
mortal wound, for which he is committed to prifon, and break-
Cth prifon, and the other'dieth of the wound within the year,
this death hath ielation to the Broke; but becaule relations aie
but fidt'ons in law, and ficlions are not here intended, this pr^-
L-n breaking is n< t felony. 2 iajh 591.
bo that the offence for which the party was imprifoned mull
be a capital one at the time of the oifencc, and not become tucn
by a matter fubfequent. 2 Haw. 126
And the caufe mm I be expr'effed in the mittimus, altho' not
fo certainly as in an iudi&ment, yet with fuch convenient cer-
tainty as it may appear judicially that the offence requireth fuch
judgment; as, not for felony generally, but for felony in Healing
Yuen a horfe, and the ii»ce. 2 Inji. 591.
But if tke offence for which the party is committed be fup
-pof-d in the miitimu* to be of fuch a nature asTequres a capital
judgment, yet if in the event it be found to be of an inferior
nature, and not to require fuch a judgment, it feems difficult to
maintain, that the breaking of the prifon, on a commitment for
it, can be felony. 2 Haw. 126.
But
PRISON BREAKING.
But if a man be committed by lawful warrant, for fufpicion
of felony done, if he break prifon he may be indicted for that
efcape, albeit the commitment be for fufpicion of felony, and yet
no judgment can be given againft him for fufpicion, but for the
felony ilfelf, whereof he is fufpefted. 2 lnjl. 592.
And an indi£tment that fuch a perfon fetonioujly broke the pri-
fort, generally, is not good; but it ought to rehoarle the fpecialty
of the matter, that he being imprifoned for fuch or fuch a
felony,- broke the prifon. 1 lnjl 591.
But it the party be only arretted for, and in his mittimus
charged with a crime which doth not require judgment of life
or member, as petit larceny, or homicicte by felf defence or by
inifadventure, and the offence be in truth no greater than tne
iiitUmus doth fuppofe it to be, it is clear from the exprefs words
if the iiatute, tnat the breaking of the prifon cannot amount to
f.lon/. 2 Haw. 126.
But if a felony be made by a fubfequent ftatute, and an of-
tender is committed thereupon; if he breaks prifon, it is felony.
For iince all breaches of prifon w°re felonies by the common
law, which is reil rained by tnis ftatute in iefpedf only of im-
prilonrnent for offences not capital: when an offence becomes
capital, it is as much out of the benefit of the ftatute, as if it
had always befcn fo. Hale's Pi. 108. 2 Haw. 126.
Alfo i: is fud, that the parry may be arraigned for prifon
breaking, before he be convicted of the crime for which he was
impriioned: for that it is not material whether he were guilty
oiinch crime or not. 2 Haw. 127.
But if he is firft indiited a nd acquitted of the principal felony,
he lhail not be indi&ed for the breach of prifon afterwards; for
it being cleared that he was not guilty of the felony, he is in
Lw as a perfon never commirted for felony, and fo his breach
of prifon is no felory. 1 HL H. 6l2.
But the jailer ihall not be pueifhed as a felon for the party's
breach of pi item, unlels he voluntarily contented to it; but it
teems to be a negligent efcape in the jailer, by which he may
be puiiifbed by hue and imprifonment, becaute there wanted ei •
ther that due ftrength in the jail, or that due vgilar.ee in the
jailer or hte officers, that ftiouid have prevented it; andifjailors
might not be punilhed for this as a negligent efcape, they would
be carelefs either to tecure their priloners oi to retake them that
efcape. 1 PI. PI. 601,
And therefore if a criminal endeavouring to brealf the jail,
affault his jailor, he may be lawfully killed by him in the affray.
I jHaw. 71.
Indictment
354 PFvISON BREAKING,
Indictment for breaking out of jail.
county to wit.
The jurors for the comm^nvjealih upon their oath prcfent, That
A O, late of in the county afor if aid labourer', on the
day of in the year of the commonwealth, at
at ore fa Id, in the county afar efaid, was arrefled, imprifoned, end
detained, in the jail of the commonwealth, for a certain felony by
him committed, that is to Jay, for the f Acinous taking and carrying
away one black gelding, tfe property of of the value of
ana that he the ja 'td A O, on the day of in the ) ear afore-
faid, with force and arms, the aforejaid jail of the commonwealth,
at aj ore faid, in the county aforffaid, fe'oniaufly did break, and
tlerely aid efape from and out of the faid jail, againjl the peace
and dignity of the commonwealth.
So much of prifon hi caking as falls under the legal notion of
an efcape, both in criminal and civil cafes, wid be found* under
title 1 E/capes.' it will therefore be fuiHAent, in this place to
refer to that title for precedent?. See the a£c of Afflmbiy in the
Jheviltd Code, chapter 79. as toefcapes in civil cafes.
The magiftrate Ihould always be particular in exprelUng the
caufe of commitment, piioi to the efcqv.
Piofaneneis. (See SWEARING,)
QuaktyS. fSee OATHS.)
Q_ u A R A' N T I N E.
QUARANTINE is a fp2ce'of forty days: thus where the
law fays a widow lb all remain in her hufband's capital
nianiion huufe forty days after his death, during which time her
dower fhall be ailigned her, thefe forty days are called the wi
dovv's quarantine. So where perfon's coming from infected couc-
tries, are obliged to wait fort)i days, before they are permitted
to land j this is called pet forming quaiantine. 2 Blacks Com. 135.
The regulations prefciibed by the laws of this commonwealth
for performing quarantine, containing nothing which relates
particularly to the office of a fingle magiftrate, it will be fuffici-
e it in*this pUce to refer to the law itfelf. See V. I. (17 R. Cyid,
1792 129) p. 254., of the Rev fed Code,
RAPE.
I. What it is.
If. Evidence on an indictment of rape,
IIL Punijkmcnt of rape.
IF. Principal and accejpiry•
I. What it is.
RAPE is an off. nee in having unlawfuf and carnal know-
ledge of a woman by force and'again It her will. But it
Is faid that no afTault upon a woman in order to raviih her, how-
ever fhamelefs and outrageous it may be, if it proceed not to
fome degree of penetration, and ado of emiilion, can amount to
a rape; however it is Lid that emiffioff is prima ja'cie, an evi-
dence of penetration. I Hawk. 169.
The offence of rape is no way mitigated by {hewing that the
woman at late yielded to the violence, if fuch her content was
forced for fear of death, orofdurefs. 1 Haw.- ic8.
Alfo, it is net a Efficient excufe in the raviiher, to prove
that the woman is a common {trumpet; for {he is {fill under the
prote&ion of the law, and may not he forced. 1 Haw. 108.
Nor is it any excufe that (he contented after the fa J. 1 Haw,
108.
It is faid by Mr. Dal ton, that if a woman at the time of tlje
teppofed rape do conceive with child by the fuppofe 1 mvilher,
this is no rape, for (he fays) a woman cannot conceive except
(he doth confent, and this he hath from Stamford and Britton,
and Finch. Dait. c. 160.
But Mr. Hawkins obferves, that this opinion teems very
queftionable; not only becaute the previous violence is no way
extenuated by fuch a fubfequent content, but alfo becaufe if it
were neceffary to {hew, that the woman did not conceive, the
offender could not be tiied till fuch time as it might appear whe-
ther (he did or not, and like wife becaufe the phitefophy of this
notion may be very well doubted of. 1 Haw. 108.
And L. Hale fays, this opinion in Da'tm teems to be no
law. 1 H. H. 731.
II. Evidence on an India merit of rat>\
The party ravilhed may give evidence on oath and is in 1-uv
a competent witnefsj but the credibility her teftimany, and
how far forth fhe is to be believed mult be left to the jury, and
is more or lefs credible according to the circumitances of
fadt that concur in that tuftimony. 1 H. H. 633. For
35<>
RAPE.
For inffance, if the witnefs be of good fame; if fhe prefently
difcovered the offence, and made purfuit after the offender ;
fhewed circumftances and figns of the injury, whereof many
are of that nature, that only women are the moft proper exa-
miners and infpedtois; if the place, wherein the fait was done,
Was remote from pe6ple, inhabitants, or psffengers; if the of-
fender fled for it: thcfe, and the like, are concuring evidences
to give greater probability to her tefiimony, when proved by
others as well as herfelf. I H. H. 633.
But on the other fide, if fhe concealed the injury for any con-
fiderable time, after fhe had opportunity to complain; if the
place where the faff was fuppoftd to be committed, were near
to inhabitants or common recourfe or paifage of paffengers, and
fhe make no outcry when the fail was fuppofcd to be done,
when and where it is probable fhe might be heard by others;
or if a man prove bimfelf to be in another place, or in othtr
company, at the time fhe charges him wicSi the fact; or if fhe is
wrong in thedefcription of the phce, or {wears the fait was done
in a place where it was irnpcflible the man comd have accefs to
her at that .ime, as if the room was locked up, and the key in
the cuftody «>f another perfon: thefe and the like circumftances
carry a ftrong preiurnpuon that her teftimony is faille or feigned.
1 H H, 633.
Sir Matthew Hale fays, if the rape be charged to be commit-
ted on an infant unc'er twelve years of age, fhe may if ill be a
competent wfrnefs, <f ihe hath fenfe and under (landing to.know
the nature and obligation of an oath; anU even if fhe hath not,
he thinks that fhe ought to be heard without oath, to give the
court information; the' that alone will not be luificient to con-
viit the offender. And he is of this opinion, firft, becaufe the
nature of the offence being fecret, there may be no other polhble
prsor of the adual fail; tho' afterwards there may be concurrent
circumftances to corroborate it, proved by other witneffes; 2nd,
fecondlv, becaufe the law allows what the child told her mother
or other relations to be given in evidence, finee the nature of
the cafe admits frequently of no better pro' f; and there is much
mere rtafon for the court to hear the nai ration < f the child her-
felt, than to receive it at fecond hand from thofe who fwear they
heard her fay fo. I H. H. 634.
And Sir William Blackftcne fays, it feems now to be fettled,
that in fuch cafes infants of any age are to be heard; and if they
have any icea of an oath, to be alio fworn : it bting found by
experier.ee, that infants of very tender years otten give the tru-
cit and clenreff telfimony. But, vhether the child be fworn or
not, it is to be wifheJ, in order to render her evidence credible,
that
RAPE.
357
that there fhould be fome concurrent teftiivsonv, of time, pLce,
and circumftances, in order to make cut the fa£l; and that the
conviction fhould not be grounded lingly on the unfupported ac-
cufatiort of an infant under years of difcretion. 4 Black. 214.
t In the cafe of Omichund and Bark$ry in 1744, in chanuery,
before the lord chancellor Hardvuicke, aihfced bv the lord chief
juilice LcCy lord chief juilice WillcSy and lord chief baron Par ■
kert the lord chief juflice Lee interrupted the attorney general
Sir Dudly Ryder, afferting on the authority of lord Hale, that a
child may be examined without oath; and faid, it had been de-
le}*minqd at the Old Baileyy on mature confideration, that a
child (hall not Be admitted as an evidence without oath. And
the lord chief baron Parker laid, it was fcr ruled at K.ngjlon af»
fizes before lord Raymond, where, upon an indi&roent for a
rape, he refufed the evidence of a child without oath. 1 Atk> 29.
Which cafe at King/Ion allizes was as follows: The ciefen-
dant. at the fummcr allizes 1725, was indiCted fcr a rape on
the body of a child, then little more than fix years old. And
becaufe the lord chief baron Gilbert, then judge of aAIze, refold
to admit the child as an evidence again!! him, he was acqui Ted.
But at the fame aTzes an indictment was found againfl him for
an afjault with an intent to ravijb the faid child. And this in-
dictment coming to be tried at the next allizes before the lord
chief juftice Raymond^ the fame objection was taken, that the
girl b ring now out feven years of age, could not be a witnefs;
It was infilled, that it had formerly been held, that none under
twelve years of age, could be admitted to be a witnefs, and that
a child of fix or feven years of age, in point of reafon and un-
derilanding is incompetent. On the other fide, in was Ibid,
that in capital cafes, which' concerned life, this objection might
be allowed; but in cafes of mifdemennor only, as this vyas, filch
a witnefs might be admitted t they infilled, that the objedj<Mi
only went to the credit of the witpefs, and Hale fays, that rho
examination of one of the age of nine years has been admiiteu?
and a cafe at the Old Bailey 169S, was cited; where upon lucn
an indictment as this, Ward chief baron admitted one to be a
witnefs who was under the age of ten years, as the child had
been examined about the nature of an oath, and had given a re t-
fonahle account of it.—But Raymond chief juflice h-]d, that
there was 110 uifterencc between offences capital and leher of-
fences la this rclpe&r; and that a perfon who eould net be a v.et-
nels in the one cafe, could not in the other. The reaibn why
the law prohibits the evidence of a child fo ycung is, becaufe
the child cannot be prelumed to dillinguifa between right and
wrong,
V v
3J8
RAPE.
wrong; no perfon has ever been admitted as a witnefs under the
age of nine years, and very ftldom under ten. At the Old Bai-
try in 1704, this point was thoroughly debated in the cafe of
one Steward^ who was indiitcd on two indictments for rapes
vpon children. The firff was a child of ten years and ten
months, and yet that child was nqt admitted as a witnefs, before
other evidence Was given in of ftrong circumftances, as to the
guilt of the defendant, and before the child had given a good
account of the nature of an oath. Thefecond indictment againft
Steward was attempted to be maintained by the evidence of a
child of between fix and feven years of age: but it was unani-
moufly agreed, that a child4 fo young could not be admitted to
be an evidence, and the child's teffiraohy was rejected, without
enquiring into any circumftances to give it credit. And it was
merely upon the authority of Hale where it is faid that a child
of ten years of age may be a witnefs, that the other child of that
age was admitted to be a witnefs in the full indictment. And
in the prefent cafe, the child was refuted to be a witnefs And
there not being evidence fufScient without her, the defendant
was acquitted. Sir. 700.
But after all, it is faid to have been determined lately by all
the judges upon conference, that in no cafe fhali the teffimony
of an infant be admitted without oath.
Upon the whole; rape, it is true, is a moft detectable crime,
and therefore ought feverely and impartially to be puniibed with
death; but it mull be remembered, that it is an accufation eafily
to be made, and hard to be proved, and harder to be defended
by the party acenfed, tho* never fo innocent: Therefore a wife
jj'V will be cautious upon trials of offences of this nature, that
thev be pot fo much tranfported with indignation at the heinouf-
milt of the offence, as to be over hafiily carried to the convic-
tion of the perfon accufed thereof, by the confident teffimcny
fcuictimes. of malicious and Life witnsfles. I H. H. 635, 636.
III. Pun foment cf rape.
Of old time rape was felony, for which the offender was to
fieher death: afterwards the offence was made leffer, and the
paiuihment changed horn aeuth to the lofs of thefe members
whereby he offender ; that is to fay, it was changed to caff r a-
tio-n anu loib or rus eyes, uaiels Ihe that was ravulied, before
judgment, demanded, him for her hufiband, 2 hijl. 180.
But by Virginia laws page 256. * It any man do
''nivi.h a woman married, maid, or other, where fine did
' not cordon: beLre nor after; or ihall ravilh a woman married,
maid,
RAPE.
4 maid, or other, with force, altho' (he cgnfent after, the per-
4 U>n la offending fball be adjudged a felon, and 'hall fuffer death,
4 as, in cafe of felony, without the benefit of clergy.'
4 If any perfon mall unlawfully and carnally know and abufe
4 any woman child, under the age of ten years, every fuch ua-
4 lawful, and carnal knowledge, fhall be felony, and the often-
f der being duly convinced thereof, fnall fuffer as a felon, with
4 out benefit of clergy.* § %.
IVPrincipal and accejfary.
Mr. Hawkins fays, all who are prefent and actually affiff a
man to commit a rape, may be indicted as principal offenders,
whether they be men or women. I Haw. ic8.
And, fo one woman may be a principal to the ravishment of
another.
So alfo may a man be guilty of a rape on bis own wife; as
was the cafe of lord Audley, who held bis wife vvhl.'e hi^ ier-
vant, by his command, ravifned her. See State trims, Icrd
" Audley's cafe.
Indictment for ravi living a woman,
county to wit.
7-he jurors &c, upon their oath prefer.That A B, late of tire
parifh of in the county of gentleman, not having the
far oj God before his eyes, but being moved and jeduced by the in-
jiigation of the devil, on the ' day of ' in the year
and in the year of the commonwealth, with force and arms,
at the fafijb of in the county of ajoreyaidy in and up-
on one' A B, ipinfler, in the peace of Gcd, and of the ccmmw-
v.ealth, then and there being, violently and feionioitfy did male an
(ifauitj and her the f lid A P, agatnfl the will op her the faid A id,
then and there feiornoufly did ravifh a- d carnaly know ag -rn/i the
iv'm-ef the fiatute in juch cafe made and provided, and again/} the
peace and dignity of tue corewuniuealth.
indictment for carnally knowing and abufing &
' female child under the age often years.
county to wit. ( . 1
The jurors &c. upon their oath prefent. That id 0, late of the
parifh of i in the county of ''labourer, not having the
fear of Goa before his eyes, but being movea^and feducedby the in-
Jiigation
360 RAP E.
ft irat ion cf the droit\ on the day of in the year
find in the year of the commonwealth^ with force and arms,
at the parif) aforcfdd, in the county aforefiid, i'n and Upon one
E P, fpinjhr, an infant under the age of ten years, to wit, cf the
fig: of mne years and upwards, in the-peace of God and of the
commonivealth} then and there being,. feIonianfly did make an af,
fault, and her the faid E, then and there wickedly, unlawfully,
and jelo'uoujly did carnally know and abufe, arairfl the form of
theJiainte infuch cafe made and provided, and againji the peace
and dignity of the commonwealth.
I f i
R E C <0 G N I Z A N C E.
RECOGNIZANCE is a bond of record, teftifying the
jTjl recognizor to owe a certain fum of monev to feme other;1
and the acknowledging of the fame is to remain of record; ' and
none can take it enly a judge or officer of record. Dalt.' c.
186. * . .....
And t'nefe recognizance?, in forne cafes, the juftices of the-
peace are enabled to take by tire exprefs words of certain iU-
tutes : but in other cafes (as for the peace, and behaviour, and
the like) it is lather in congruity, and by reafonable intendment
of iavv, than by any exprefs authority given them,- either by their
com million, or by the liatute law, Crotn. 125- Dalt. c. 168,
. But wherefbever any feature giveth them .power to, take a
bond of any man,, or to bind over .any man to appear at. the afe
fizes or feffions, .or take Sureties for any matter or taufe, they
rnsy take n recognizance, < Yea, where foever th-*y have autbo-,
rity given them to caufe a man io do a thing, there it fyemeUi
they hzvc in congruity power given them to bind the party by
recognisance to do it: ami if the r>arty lhall refufe to be bound,
the juiUce may feed him to jail. Dalt. c. 16B, ' • • ,
f'tc; he can take uo recognizance hue only of fuch matter as
concern his office: and if he both, it teemeth to be void, Dalt.
,i. 168.
, Every recognizance taken bv jutlices cf the peace ffiall be
raadc payable to tne psif ui having the executive power,—^And
a;i bonds to be entered into by fhetihs or other public office:s,
ruuft be hi.,be parable, to the j unices of the court taking fuch
bo-id, See ordinance of Convention (interregno) 1776, ch. 5 .p.
37* § 7" ^ ^ edition of the la vs in ry85.
It muffi slfo contain the name, place of abode, and trade or
calling, both of p; hcipal and fureties, and the fums in which
they are bound. Bail. Recog*
And
RE-CO&NI'Z A.NC E; 361
And it is moil commonly fubjeft tc> a condition, which is ei-
ther endorfed or underwritten, or contained within the body oi'
it, upon the performance of-which>the recognizance iliall be
void, id, - ' •
When the parties are to enter into a recognizance,1 it is ufual
to call their names thus: You A By acknowledge la owe to
governor of this commonwealth, and his juccefjlms, the Jutn of
And you C D,' acknowledge to owe to , governor of this com-
momvealth, and his juccefjors the fum of To be leviea of your
refyftivc goods and chattels, lands and tenements, for the ufe of
the commonwealth, if default jh&Ll be made in the condition follow-
ing', that is" to fay, if you the faid A B, 'fail make default in ap-
fearing &c.—It is faid that the' parties need not1 fign tt. id,—
But the better practice feems to be for the' parties to'figndt;
It is alio faid to be ufual for the julhices to mark at the foot of
the examination A B, in ' dollars to appear Szc. and from
iuch ihort note to make out a record afterwards, id,—But this is
not ufual in this ilate. "
The recognizance is a matter of record prefently, fa foon as
it is taken and acknowledged, altho' it be not'made up,Dalt,
c. j 63. '
And when it is made up, if the juihsce fhall only fubfeibe his
mane, without his fcal to it, this .is well enough y and that rrr-.y
be in either of thsfe forts, acknowledged before me, J P. or o dy
to liibfcribe his name thus, J P. 'Dalt. c. 176.
The juicices fhould always certify or tranlmit their recogni-
zancesto the next court; or, to the .court of examination, if
taey hull be of opinion-that the offence is triable in the diftricl'
court, and confequently order a court of examination to be fum-
moned. . -
7 he conch ions of recognizances, in all-the variety of cafes,
are interfperled under their proper titles.
Recognizance' with furetics.
county to wit.
Be it remembered, thai on the day of in (he >
year of the commoiiweaiih, A O, of in the county afore faid,
yhm.an, and A S, of ' in the county afv rf lid, toy-
lor, and B S, of in the county afovfaid\ labourer, per_
f noddy came before m.: Jp, one of the comaronwealth's jufises of
the peace, for the faid counts, and ackmvdiedged tbemf'tn*s t " woe
AG, governor or chief magiflrate of the Commonwealth of firgiJ-
nia, and his juccefjors, that is to fay, the faid AO, the fum-oj
and the faid A S, and B S> each 'the fum of
362 RECOGNIZANCE.
feparately, of good and lawful money of jhis, commonwealth)
to be nw.de end levied of,their goods and chattels, lands > and true-
ments rejpeflively, U the nje of the fuid commonwealth, */ the Jaid
A O, fhail make default in the condition her eon endorfed, (er here-
written,-, -
Acknowledged before me, J P.
Recognizance without furetics.
couxty to wit.
He it remembered thai on the cay cf . /» the yeat
AO, a/i in the jaid ctunty yeoman, perfnally came
before me J P, gtz<? cf the jujliccs. oj the peace for the /aid county,
and acknowledged himfelf to owe to{ A G, governor idc and his
fuccefors dollars, cf lan/fulmoney of this commonwealth, to
be made end levied of his goods end chattels, lands and tenements,
to the ufe ofjfhe jaid commonwealth, if the jaid A O, fall jail in
the condition muierw iiten, [or indoried]
The condition of the abovs.writlen [or, within written] recog-
nizance is Juch, thai if the above bound A G, fall cY, [here ia-
fert the cauie tor the performance of which the fart) b bound]
Then the jaid recognizance to be void, elfe to remain in its force.
RENT S.
wcrd rent or render, rediius, figmfies a compenfation
Jsv or return, it being in the nature of" an acknowledgment
given for the poifefiion of feme-corporeal inheritance. It isde-
fined to he a certain profit bluing yearly out of lands and te.ee-
ments corporeal. It muff be a prcft\ yet there is no occafioti
for it to be, as it ufualiy K a funi of money.—This profit muff
aifo be certain', or that which may be reduced to a certainty by
either party. It muff alfo iliueyearly j though there is no cc-
cafion for it to iflue every fuccefiive year—Yet, as it is to be
produced out cf the profits oflands and tenement*, as arecqmpencs
for being permitted to hold or enjoy them, it ought to be reiVrved
yearly* Decaufe thofe profits do annually arife and are annually
renewed. It muft iffue out cf the thing granted, and not be
par: of the land or thing itfWfj wherein it oifjfars from an excep-
fion in the grapt, which is always of part of the thing granted.
It rnuft JaTy lilus out cf lands and tenements corporeal j that is,
from, lorne inheritance tvhereunto the owner or grantor of the
rent may have recoarfe to diftrain. Therefore a rent cannot be
referved out of amaclvowlbn, a common, an cfHce, a franchile,
or
RENTS. 363
or the like. But a grant of fucb annuity or *fum tmy operate
as a perfonal contract, and pblige the grantor to pay the money
referved, or fubjeii him to an a&ion of debt: though It doth
not affedfc the inheritance, and is no leg.il rent in contemplation
of law. 2 Blacks Com. 41.
It is impoflible to form a fufihcrent idea of the do&rine ©f rents
as received in this country from England, (particularly thatclafs
which goes under the .denomination of Rent fervice) without
po'ileSing fome knowledge of the Feodii Tenures, from which
the law and pra&ice of rents are immediately derived.—But as
it would far exceed the limits prcpofed in this publication, to
enter at large into an hiiforical account of"the origift ©f feuds;
I lhall only mention fa much of that lubje£t a' will be necefiary
to illuftrate this title, and refer the curious and learned reader to
fuch authors as have treated of the matter more in detail. See
1 Blacks Com. cb. 4, 5. Wright's Tenures. Dalrymph on Feudal
property. Stuart's view of facie ty in Europe &c. /'h:d an excellent
note to Hargrove's Coke on Littleton folio 64. a.
The introdu&ion of the feodal (feudal or military) tenures
in England feern^ to have been intended by IfuYtam the
Conqueror, with whom they fir'd originated, as a mean to pro-
his newly acquired dominions againll the frequent invalions
of his northern neighbours. Under this tenure the king was
confidered the fupreme lord.of the whole territory of England,
by whom the lands were divided among the leffer lords or ba-
rons, and by them among the common people or valTals, upon
condition, generally, to render their lord certain i'erviees in the
wars;—on failure of which fcrvices the land became forfeited
to the lord of the fee of whom it was holden. 2 Blacks Com. ch.
4, 5, The evidences of the valETs title, were an open and pub-
lie delivery of pofiefHon by the lord, who in return received the
vafial's declaration of homage and fealty. 2 Blacks Com. 53. Lit.
$?5. 91*
1 he Jervtces incident to this invefiiture were either military^
as attending the lord in his wars, or minUlerial. as amending
him at his courts, Uc, 1 Blacks Com. 56. GUI. D'f. 1.
The qualities annexed to thole feuds, do not require any par-
ticular notice in this place;—It is lufilcient to obferve that the
feudatories being unable to attend to the cultivation of the foil,
from their liability to be called out at any feafon of t\n yt:ir by
their iuperior lord, it was found necciLuy to commit the ma-
ncgement of their lands to other inferior vailals, requiring in re-
turn a compenihtion in certain pa its of its produce, as ;a corn,
cattle, money &c.—which is the origin of Rents.
Under tins title, I lhall cor.fider,
364 RENTS.
I. The feveral kinds of rent.
II, The remedy by dillrels.
And herein,
/. For ivbat causes a dijlrefs may he madey
and in what, other manner rent may be
recovered.
ii. TV hat goods may he diji rained and what net.
Hi, At what time and place the dijirefs jhall
be taken,
iv. That reasonable dijlrefs foal I he taken,
v. Manner of making a cljirtfs.
vL Dijlrefs how to be demeaned.
vii. Of rr.seotis and pound breach.
viii. Replevying the dijlrefs,
he. Sale of the diflrefs,
x. Irregularity in the proceedings.
xi. Land-lord re-entering on non-payment,
xii. Attorning to fir angers.
xiii. Rent in case of an execution.
xiv. Rent how far recoverable by executors or
adminijl rators.
xv. Attachments for rent.
xvi. FraSiical direblions as to the making of a
dijirejs for rent.
xv:iu Precedents of replevy bends &c.
III. Cf the action of replevin.
I. The ft vera! kinds of rent,
Theuftial diviflonof rents, bv the common !av/,< is into rent-
feivice, reni-charge, and rent-icek. Lite. § 213.
Rent-Jervicc is io called becaufe it hath feme ccrporr.l fervice
incident to it, as at the leafl fealty, or the fecial oath of fidelity.
J* or if a tenant holds his land by fcaky, and ten fhiikngs rent,
or by the fervjee of ploughing the lord's land, and live (hillings
I:tnt j thtle pecuniary for vices being conne&ed with pcrional fcr-
vices,
RENTE.
vice?, are therefore called rent fervice. And for ihefe, in cafe
they be behind or arrear, at the day appointed, the lord may
diftrain of common right, without referving any fpecial power
ofdiftrefe; provided he hath in himfelf the revertion or future
eftate of the lands and tenements, after the leafe or particular
eftate of the leflee or grantee is expired. 2 Blacks Com. 52. Co,
Lilt. 142. Lilt. § 215.—In the fame manner it is, if a leafe be
made to a man for life or the life of another, rendering to the
leiior certain rent, or for term of years rendering rent. Liit,
§ 214.—For thefe are rent fenders becaufe fealty is incident to
thefe rents. Co. Litt. 142. Litt. § 131, 132.
A rent-charge, is where the owner of the rent hath no future
intereft or reveriion expectant in the land* as where a man by
deed maketh over to others his whole ellate in fee fimple, v/irha
certain rent payable thereout, and adds to the deed a covenant
or cfeufe of diftrefs, that if the rent be arrear, or behind, it
{hall be lawful to diilrain for the feme. In this cafe the land
is liable to the diftrefs, not of common righr, but by virtue of
the claufe in the deed: and therefore it is called rent-cbaigf,
becaufe in this manner the land is charged with a diftrefs for tite
payment of it. 2 Blacks Com. 42. Co. Lit, 143.
Rent feck ? editusfetus, or barren rent, is in effect nothing
more than a rent referved by deed, but without any clauie of
diftrefs. 2 Blacks Com. 42.
II, The remedy by dijlrefs4
This is one of thofe few. cafes in which the law permits a mart
to be his own avenger, or to minifter redrefs to himieif, viz. to
diftrain cattle or other goods for non payment of rent or other
duties, or to diftrain another's cattle damage, feajant, that is doing
damage, or t re i pa fling upon his land. 1 he former intended for
the benefit of landlords^ to prevent tenants from fecreting or
withdrawing their effects to his prejudice; the latter ariftng from
the neceftiiy of the thing itfelf, as it might otherwife be. impo.fi-
fibJe at a future time to afcertain, whoie c.ufle they were that
committed the t re final's of damage. 3 tilacks Com. 6.
A diftrefs is defined by jj ucfe Blackjhne to be 4 the taking cf
a perianal chattel cut of the pnjjejfim of the wrong-duer into tie
cuflody of the party injured, to produce a jatisf action for tbew*oug
committedand the moji ufral injury for "which a aiylfejs may be
taken is the non-payment of rent. 3 lilaclis Com. 6.
It has been already feen that diftrefs was incident by the com-
frion law to every rent-feruice, and by particular rdetvation to
jrcnfc
W v?
366 RENTS.
rent-charges alfo.—Thefe diftrefTes were fubflituted in lieu of
the forfeiture of the feud or cftate by the old feudal law, on the
non-performance of the fcrvices ftipulated to be done by the te-
nant; and were in their origin nothing more than a pledge in
the hands of the lord, by retaining which in his pofleflion (Tor
he could not fell the property taken by diftrefs) he might compel
a performance ; and the detention was no longer lawful than
while the tenant refufed to do the fervices referved by the fcodal
contra#. Gill, Dijl. 2—4.
But when the military fervices ccafed to be neceftary. and the
diftrefs v/aS ccnfidered merely as a remedy to compel the pay
ment of the money or other thing referved, it would have de-
Feated the very obje# of the diftrefs,- to fufFer the property to
remain in the hands of the lord, as a pledge, and thereby deprive
the party of the means of paying the rent. 4 Burr. 589.—For
thefe reafons, by various ftatutes in England, (the fubftance of
many of which we have adopted in this ftate) the mode of pro-
ceeding after ?naking the dijlrefs, particularly as to the lale of it,
has been pointed out,—leaving the right of diftrair.ing 2s it flood
at the common law. The neceftity then of recurring to the
origin of diftreffes by the common law, is fufficiently obvious,
as without it, the mo ft familiar cafe, would be perfectly unintel-
lig'ble. See 2 Blacks C:m. 42. Litt. § 213.—Co. Litt. 142. a,
Litt. § 131, 132. Co. Litt. 142. b.
i. For what causes a dijirefs may be made. and in
what other manner rent may be recovered.
Diftrefs for rent muft be, for rent in arrear, therefore it may
be made on the fame day on which the rent becomes due;
for if the rent is paid in any part of that day, vvhilft a mail can
fee to court money, the payment is good.
it muft not be after tender of payment; for if the land-lord
come to diftrain the goods of his tenant for rent behind, before
thf diftixf> the tenant may upon the land tender the arrearages,
ana if after that a diftrefs be taken it is wrongful: and if the •
landlord have diitrained, if the tenant, before the impounding
thereof, tender the arrearages,- the landlord ought to deliver
the diftrefs, and if he doth not, the detainer is unlawful. Even'
to it io, in cafe of a-diftrefs for damage feafant for damage done
by rattle trefpafting) the tender of amends before the diftrefs,
nukcth the diftrefs unlawful; and after the diftrefs, and before
the impounding, the detainer unlawful. 2 Infl. 107. 8 Co. 147*
By V. I. page 163. § II. of the Reyifed Code. ' Any per-
* fon or perlons having rent in arrcar, or due upon any leafe or
i deniife
RENT S. 367
cdemife fur life or lives, may bring 3:1 acbion or anions of debt
* for fuch arrears of rent, in the fame manner as if fuch rent
1 were due and referved upon a leafe for years.'
And by feci. 12, The power of diftrefs is given to a perfon
having rent in a'Tcnr, upon any leafe for life or lives, or for
yea 's, or at will, after the determination of the rcfp -tive leafes.
{ftft 12) provided, that the diftrefs be made within fix months
after the determination of the leafe, and during the continuance
of the land-lord's title or in te re ft, and daring the poiTcftion of
the tenant. No diftrefs {hall be nlude after the expiration of 5
years after the rent became due.
Secft. 14. Not to afreit any debts be. due to thd common-
wealth.
By the common lav/, two diflrefles cannot be taken for one.
rent, if there were fuftuient goods when the f.rfc diftrefs was
made, unlefs too littlp was taken by milfake. Otherwifo it is,
if there was not fufficient. 2 Lutw. 1532. Mo. 7. Comb. 546.
Burrow. 589.
By V. I, p. 162. § 4. of the Revifed Code. If diftrefs and fale
is made for rent pretended to be in arrear, where in truth no
rent is in arrear, the owner of. the goods diiirained and fold, his
executors be. fhall have remedy by adfion of trefpais, or upon
the cafe againfl the perfon f> wrongfully diftraining his execu-
tors be. and iliall recover double the value of the goods dif-
trained and fold, and full cofts of fuit.
Byf-ft. 22. (page 164) Where rent accrues on lands be,
held in right of the wife, during her life, the hufband may re-
cover the lame after her death, either by aftlion of debt, or by.
dillrrfs.
if the diftrefs be taken of goods without caufe, the owner may
make refccus-, but if they be diiirained without caufe, arid im-
pounded, the owner cannot break the pound and take them our,
breathe they are in the cuftody of law. I lnji. 47, 3 BLcks
Com. 12.
In the cafe of.a houfe bewg burnt before the expiration.of the,
tenant's intereft, 1; has generally been held, that the tenant was
bound to pay the rent, annuafty, during the time for which he
was to hold ir, notwithftanding he covenanted to repair, acci-
dents by fire excepted. And to this point are the cafes of Para •
dine v. 'Jane. A'ilen. 27 —and Monk & Cooper. 2 Sir a. 763.—
But in the cafe of Brown v. phiilter, (Ambler, 619) it was held
on a cafe exactly ftoiilar, that it was good groupo for relief, by
injunction in chancery; and the chancellor eXpreftedhisfurprize
that a defence was not allowed at law to fuch action.
II.
3^8
RENTS.
7i. What goods may U diftrainedand what not.
Diflrefs for rent muft be of fuch things whereof a valuable
property is in forne body, and therefore dogs, bucks, does,
conies and tho like, that are feres nutura.9 cannot be'diftrained.
I in/1. A7;
Altho it be of valuable property, as a horfe, yet when a man
or woman is riding upo.n him,' or an axe in a man's hand cut-
ting of wood, a; d ihe like, they are for that time privileged,
and cannot be diHrained. I Inji. 47.
But it is faid, that if one be riding upon a horfe damage fea-
fant, the horfe may be led to the pound with the rider upon him:
1 Sid. 440. 442.
*' And it hath been held, that horfes joined to a cart, with a
man uj>o.n it, cannot be diilraintd for rent, (altho'they may for
(Umage feaiartt) but both cat t and horfes may, if the man be not
upon lire carr. r Vtnt. 36.
Valuable things lhali not be diftrained for rent, for benefit
and maintenance of trades, which by confequence are for the com-
monwealth, and are tirere by authority of law; as a horfe in a
fmith's fliop lhali not be diftrained for the rent iffuir.g out of the
limp, nor an horfe in an hoftry, nor the materials in a weaver's
(bop rb.r making of clod), nor cloth nor garments in a taylor's
fhop, ror lacks of corn or meal in a mill, nor any thing dif-
trailed for damage feafant, lor it ia in cu foody of the law; and
the like. I Inji. 47.
But it feems that a chariot in a common livery-Arabic is'dif-
trainable, becaufe the owner of the liable is not bound to receive
it, as in the cafe of an inn-keeper Sic. See Burrow. 149H. Bl.
Hep. 483. Francis v. IVyait.
Beads belonging to the plough fhall not be diftrained, (which
is the ancient common law of England., for no man lhali he dif-
trained by the utenliis or inforuments of his trade or prof Jiiun,
as the axe of the carpenter, or the book of. the fohoiar) while
goods or other beaifs may be diftraintd. 1 Inji. 47.
But this rule holds only in dilhefles for tent at rear, amerce-
menrs, and the like; but doth not extend to cafes, where a dif-
trefs is given, in the nature of an execution, by any particular
ILitute, as for po<,r rates, and the like. 3 Sulk 136.
bo beails of ujt- plougn and cait may be diftrained for the poor
rate. See Bur. '79. liutcbins v. Chambers.
f urnaces, eauldions, or otner things fixed to the freehold, .or
the Uoois or windows of a houfe, or the like, cannot be didrain-
fd. 1 injt. 47.
Things for which a replevin will not lie, fo as to. be known
again
RENTS. 369
again, as money out of a bag, cannot be diflrained, 2 Bac.abr.
log.
But money in a bag fealed may be diftrained; for that the
b(#g fealed may be known again. /
Generally, whatever goods and chattels the landlord finds tipon
the pietnifes, whether they in fadlbdong to the tenant or a "Iran-
ger, are dillrfinable by him for rent; f >r otherwifs a door would
be opened to infinite frauds upon the landlord; and the ftranger
hath his remedy over by action on the cafe agaiufl the tenant, if
by the tenants default the goods are distrained, fo that he cannot
render them when called upon. 3 Bhcks. 8.
But on particular circumilances perhaps a court of equity may*
relieve. „ in the cafe of Fovukes and Jo)'cey in the common
pleas.,, a perfon driving fheep to London to fell, by agreement
with the matter of an inn, put them into the field at fo. much a
icore for the night. The landlord feeing them, aficed whofethey
v/err, but. contented to their flaying there, and afterwards dil-
trained them dor rent due to him from the matter of the inn, and
it was adjudged for the landlord. 3 Lev 260. 2 Vent*■. 50.
But in the fame cafe, upon a bill for relief in equity, the lords
couunifiioners feemed to jfiirik, that the grounds lying to the inn,
and ufed therewith, ought to have (he fame privilege as the inn
hath, arid that palfenger's cattle ought not to be diftrainable there.
2 Fern* 129. * And it appeared in this cafe, that on the landlord's
coming and feeing the Bleep, he prettnded to be angry. Upon
which the owner offered to take out the fheep, at which time
they were not diftrainable for the rent, having not been levant
and couchant (that is, not ,having fo long remained upon the
ground, as to have laid down and rifen up again to feed,) fothat
the court looked upon the confent a^ a frauri^ to get them tq be
left all night, by which they became liable to the diftrefs. And
it was decreed, that the landlord Should anfwer for the value of
the fheep, and pay cofrs both in law and equity. Free. Chun.'].
Where a'tiranger's beails efcape into the land, they may be
diflrained for rent, tb<>' they have not been* levant and couch ant,
provided they are trefpaflers; but if the tenant of the land is'in
default, in not repairing his fences, whereby the beafts came into
the land, the landlord cannot ditfrain fuch beaft, tho' they have
been levant and couchant, unlets he has caufed notice to be given
to the owner, and the owner fufilers them to remain there after-
wardsi Lutw. 364. ' (
In cafe of rent referved upon a leafa for years, the landlord
cannot difkain cartle efcaping into his lands until they l>e levant'
and couchant; for if the landlord had had the lands in his own
hands, he ought £0 have repaired the fences 5 and when he puts
in
370 R E N T S.
in a le/Tr-p, he ought by covnanf to obl'ge him to repair : and
therefore in that cafe, if the law would allow the fmdlhrd to dif-
trn'n t!w cattle of a ftranger which came in by efcap", before
that they be' levant and a uchiut, it-would in effedt to allow
a tnn.i to take advantage <Jf.his own wrong. Therefore if the
c-'He come in by default of the owner of the cattle, then they
imy be didrained before they be leva.it and cmchaot; and if in
de^ult of the tenant of the land, there they cannot be did-aimd
u- »il they have been levant and conchant, that is to fay, for re, t
ijpt n leaks for years. And in fuch cafe the landlord fhall ret
take the cattle befue that he has ^iven notice to the owner, th^t
they are upep the land liable to his dilfref?; and if he doth not
come to ta^e tnem away, then they become diltrainaMe. And
by Trrh chrf jujdiee; where tne cattle "ef:ape 7 t dentally,
thrre fhey are rot dilfralnab'e, on til they have been levant and
cr uchanl; but if they cfcape by default of their owner, they are
di{trainable the fird minute. L. Raym. 168, 9.
It! the cafe of Brodcn and Pierce, where a rent charge was
arrear for 20 years, and cattle efcaped out of the next ground,
and wyrediltraiucd; lord Nottingham (inequity) relieved againlt
it. % fern, 23 r.
If ten head of cattle were doing damage, a man cannot take
one of them and keep it till he be fatisfied for the whole damage;
but he may bring an action of trefpafs for the reft. 12 Mod. 660.
If a man come to dillrain damage feafant, and fee the beafts
in his ground, and the owner chafe them out, of purpofe before
the diilrefs taken; yet the owner of the foil cannot diftrain them,
and if he doth, the owner of the cattle may refcue them; fur
the beads mud be damage feafant at the time of the didrefs. 1
hji. 161.
For did red damage feafant is the drifted didrefs that is; 2nd
the things diftrained mud be taken in the very a61; for if the
goods are once off, tho' on frefli purfuit, the owner of the ground
cannot take them, 12 Mod. 661. ,
iil. jit ivbat time and place the dijlrefs Jhall
be takeji.
For a rent or fervice the lord cannot diftrain in the night,
but in the day time; and fo it is of a rent charge; but for da-
mage feafant, c ,e may dill rain in the night; otherwife, it may
be, the beads may be gone before he can take them. I Injl. 142,
For before fun rifing, or after fun fct, no man may dixlrain
but for damage feafant. Mirrour. c. 2. s. 26,
By
RENTS.
By the common law, if the leffof did riot find Efficient d;fi-
trefs on the premife$, he cculd refort no where elfe, 'and there-
Tore tenants, who were knavilh, made a practice to convey
away their goods and (lock fraudulently from the houfe or hinds
demifed, in order to cheat their landlords. 3 Biacks Com. I?.
But by Virginia lavjs page 163. § q, of the Rev fed Owe,
Where goods and chattels are fraudulently or clandeffinely car-
lied off from the premifes, ort which rent is in arrear, the land-
lord may diftrain them, within ten days, in the fame manner as
if they had remained on the land.
. Seft. 10.—Provided, that goods fo carried off aftd b-ona fide
fold for a valuable confideration fhall not be liable to be feized,
iv. That reasonable dfrns jhall be taken.
By V. L page 164. § 24. 4 Difireffes (hall be reafonable,
4 and not too great, and he that taketh great and unreasonable
4 diftreffes, fhall be amerced for the excels of fuqh diftrelles.'
For example, if the lord diftrain two or three oxen, for f2d*
or the like fmall fum, and the owner bring a replevy of the oxen,
and the lord avow the taking of them for the i2d. of his own
(hewing, he (hall make fine; or the party may have his action
upon this ftatute. 2 Ittjh 207.
If the lord diftrain an o.x, or horfe, for a penny v if there were
ho other diftrefs upon the land holden, the diftrefs is not excef-
five: but if there were a (beep, or a fwine, or the like, then
the taking of the ox or horfe is excefiive, becaufe he might hate
taken a beat!: of lefs value. 2 Injt. 107.
v. Manner of making a diftrefs.
Gates or inclofures may not be broken open, nor thrown
down, to make a diftrefs. 1 In ft. 161.
Nor may the leffbr efiter into the tenant's houfe, unlefs the
doors are open. 2 Bac. Abr. isi. x
Upon a queftion about taking a diftrefs, it was held by the
lord chief juilice Hardvoicke, that a padlock put on a barn door
could not be opened by force, to take the corn by way of oil-,
trefs. 9 Finer. 128.
But if the outer doer of an houfe is open, one may break an
inner door to take a diftrefs. Cajes in the Anns 0/ lord Hard-
wicke. 168.
If a landlord comes into a houfe, and feizes upon fome goods
for a difirefs, in the name of all the goods of the houfe; that
will be a good feizure of all. 6 Mod. 215.
t vi.
3-« RENTS.
vi. Diftrefs how to he demeaned.
r>y V. 1. page 1&4 § 24 4 It (hall not be.lawful for any perfoh
1 taking any diiirtis to d.ive or remove the fame out of the
4 c 'Ung, where fuch diftrefs was taken: And whofoever doth
4 fo, fnu! be amerced at the difcretion cf a jury/
Catfte diftrained may not be worked or ufed, unlefs for the
owner's benefit, as a cow milked, or the likei much lefs may
they be abufed ©r hurt. Cro. Jac. 148.
If the diftrefs be loft by the act of God; as if the diftrefs dies
in the pound, without any default in the diftrainer; in inch cafe,
he who made the diftrefs may diftrain again. 1 Sulk. 248.
vii. Of rescous and pound breach.
Pound breach by the common law is a great offence, for
which the party is to be purfued by hue an j cry. A fir. c. 2. §
26. And the diftrainer may take the goods again. 1 Inji, 47.
And by V. I. page 162, § 5. 4 Upon any pound breach or
Jrefcous, the party injured Ihftl recover treble damages.
When a man hatn taken diftrefs, and the cattle diftrained, as
he is driving them to the pound, go into thehoufe <&f the owner;
if he that Pook the diftrefs demand them of the owner, and he
deliver them not, this is refcous in law. I IrJ}. 161.
. If the tenant tender the rent to the lord when he is to take the?
diftrefs, if notwnhftanding, the lord will diftrain, the tenant
may mak'. rci'cous —Ar.d if the lord will diftrain beojls of the
f lough, where there is fufficient diftrefs to be taken beftdes, or
if the lord diftrain any thing that is not diftraii.able, eimer by the
-common law or by any ftatute, the tenant may make refcous.-
Co. Lit. 161. a.—1 he fame lav/, if no rent is due. Co. Lit,
47. b.
viii. Replevying the difrefs.
The replevy of which v/e (hall here fpeak, is an indulgence
granted, by the laws of this commonwealth, to the terran , who
is thereby permitted at anytime within ten days after the diftrefs
rn.de, to enter into bond with fufficient fecuritv for the payment
of the money or tobacco with intereft and cofts at the e- d of
three months. And we muft alfo obferve that "his kind cf re-
plevy is materially different from that regulated by the ftatute of
l h 2 P & M. and fo often fpoken of by the writers on the
laws of England;—that being a mere lhcurity to try the right
of the diftrefs, and to reftore the property to the diftrainer if the
RENT S.
373
right be determined againft the tenant, (3 Bitch Com. 13)-—
but this being an indulgence to the tenant m expending the time
of the payment of his rent thtee months; without delR eying his
remedy by afiion of replevin to determine on the right of the
dilfrefs, if he thinks proper to pur fur it.
Having laid thus much of the replevy^ as regulated by our
laws, it vvi 1 b-* fufficien: to refer to the add itfeif, in which the
.true diitindtmn between a replevy fur three months and the aClisn
of replevin will be dilcovered, a; d where Urn p' xrei.ings on a
di'drefs for rent are alio pointed cut. See Virginia laws chap, 09.
page 161. of the Revifed Code, fchi. t, 2, 3. as to rrjl vying
ibi three months; and fffilions 15, 11> 17, lb, page 163 of the
Revifed Code, as to the a£l*'on of replevin.
The power of felling the dffirefs has already been f en under
the preceding divif.on of this title. A difficulty, how. ver,
occur* under the preient la.vs, with refpedf to the coiului'l. of
the officers makic r the diltrefs, where "he tenant does not re-
plevy for three months, or fue out a writ of replevin, and me
officer is to proceed to fell the good*, on three months credit —
The adt of 1748. ch 10 § 1. ffire&ed the goods to be foil in
the like manner as goods or chattels taken in execution Ti tie
words are omitted in the adt in the revifed code, p :ge 161, ami
the diftrefs for ren: has always been excepted out of the new
execution law*. Seep. 313 of the revifed code— The queftion
then is, how is the officer to advettife the property? - Under the
adt of 1748, no difficulty arofe, became by a reference to the
execution law, the mode was there pointed out.—out at pre-
fent it feems difficult to maintain that the officer is boon !, at all,
to advertife,—3nd if he is, the mode which he ihali puiiue,
feems equally difficult to afcertain.
x. Irregularity in the proceedings.
By the common law, if a diltrcfs was made for rent in arrear,
and any irregularity was committed the whole proceedings were
void and the diltrainer a trefpailer ab v\it!o. Bo reroch des me
act of 11. Ceo. 2. th. 19. was palled:—'nut as that ffiitute is
not in force here ami no pro .olio n is made by cur law, qvavfy
374 R E IT ^ S.
xi. Landlord re-entering on n > »-payment.
By Virginia laws page 164* § 19* Rtvifed Code,-—
Grantees, or afiignees of lands &c. fliall have the fame advan-
tages againft the leflees, by 'entry for non-payment of the rent,
or for watte, or other forfeiture Sec. as the lcflbrs themfelves.
By fe£l. 20. Leflees fliall have the fame benefit of contrail
a gat nil the grantee of the land &c. as they could have hadagainll
the grantor.
xii. Attorning to Jlrangers.
By V. /. page 167. § 18. 4 The attornment of a tenant to
4 any Aranger fliall be void, unlefs it be with confent of the
4 landlord of fuch tenant, or purfuant to, or in confequence of,
4 the judgment of a court of law, or the order or decree of a
4 court of equity.'
And byfeiL 17. 4 Grants of rents, or of reverfions or re-
4 mainders, fliall be good and cfreilual without the attornments
of the tenants, but no tenant, who, before notice of the grant,
4 flja'l have paid the rent to the grantor, fliall fufferany damage
4 thereby.'
xiii. Rent in case of an execution.
By Virginia laws page 162. § 5, 6, of the Revifed Code.
tJpon an execution againfl: the tenant, no good's or chattels Iliad
be removed till the plaintiff pays or tenders to the landlord the
whole rent due.—(feil. 6) provided, that it fliall not extend to
more than one year's rent.
And the landlord mutt demand the years rent, or the ftieriff
will net be bound to fecure it for him, I Strange. 97.
And to cafe of two executions, there fliall not be two years
rent paid to the hodiord; for the intent cf the ail was to rtf rve
to the 1 :nv lord only the rent for one year, it is his own fault if
he It t more ran in aiveor. Therefore orte yeaTsi rent to the
landlord being paid to him on the firft cxtcut-on, the flieriJf is
rot to levy lor him again any thing 011 a lubfequent execution.
Sir. {C24.
xiv. Rent Ijo-vjfar recoverable by executors or
adnnnid rators.
By Virginia laws page 164. § 21 & 23. of the Revifed Cole.
The fame remedy b given tD cxtcutors or adminittratois for the
recovery
RENTS. 375
recovery of rent due to the teftator, or inteflate, as he himfelf
might have had.—See the act of Affembly above cited.
xv. Attachments for rent.
Thefe attachments are founded on Virginia laws, page 162,
left. 8 of the Revifed Code.—They are grantable by a juftice of
the peace, #n a well grounded apprehenfion of the landlord's
fjpported by oath, that the tenant will remove out of the county
or corporation before the expiration of his term, lb as no diftrels
can be made for the fame.—See the aid.
Oath to he adminiftered to the landlord.
You (hall fvvear that A T, agreed to pay you the fum of
for the tenement (defcribe the kind) he now occupies; that
will be due for the fame, en the day of next; and
that you have fufficient grounds to fufpedt that the ibid A T,
will remove his'effedts out of this county (or corporation) before
the expiration of his term, bo help you God,
I
IF.irrant of Attachment.
To the Jberiff of the county of
county to wit.
V/hereas E D, hath this day mode oath before me J P, a juflice
of the peace for the county aforefaif that A B, his tenant, hati
agreed to pay him, for the rent of a plantation the fold A B, now
occupies, the fum of on the ' day of next, of which
i.e hots received no part, and that the aeponant hath fufficient
grounds to fufpefl, and verily believes, the fa id A B, will remove
his effedis cut of the county beiore the faid rent will become due :
there/ore in the name of the commonwealth I require you to attach
fo much of the e/late of the Jaid A B, as will be fufficient to fatisfi
the j'ant C D, the rent aforfa'uf and cojls; and if thereupon the
fill A B, Jhall not enter into recognizance, with one or more fuj-
He tent Jlc unities, tor the payment of the faid rent, on the faid
day of next, and the calls, then that you fecure the e/late (0
attached in your bands, or fo provide that the fame may be liable
10 further proceedings herein, at the next court to le held (or this
county, when you are to make return of this warranty with an
account what you Jhall have done thereupon. Given c.
Bond in the ufual form payable to trie iLeiif^ or his afilgns,
with this condition.
The
376 RENTS.
The condition of the above obligation is fuch, that wht reas the
faitl E F, fneriff, hath this day att ichtdjundry goods and ch ittels
of ihe (aid A B, upon &n attachment ijjuea from G H, ajujtice of
the peoce of the /aid county, to jecure the payment of which
will be due to C D, for rent on tie day of next,
now if the [aid A B, Jhall well *nd truly pay to the faid E F, or
lis a jig us, the fun of and alicojis, on the faid day of
next, then idc.
This bond is to be affigned by the fherifr to the landlord and
annexed to the attachment on which fhould be this return.
By inrtue of )his warrant, I did att-ich fundry goods of the
within nailed A B, which I refored to him on his and his jecuri-
tv's executing the annexed bond, by me ajigned to the within
named C D, according to lazu.
EF, Sheritf.
xvi. Practical directions as to the making of a
dfircfs for rent»
It is fiid That the landlord himfelf may make the d hi reft or
authorize any other perion to do it. See Gilbert's dijirefes.—
Bin it feecas moil proper, it not the only legal mode, hi this
fh.te, to employ the tlieriff or conlfable, the wnros 1 feriffi tr
officer f being the terms ui'ed by our laws. See V. L page ltti,
Jed, I. of the Rc vijed Code.
Warrant of Dijlrefs.
To Air. A B. Diflrain the goods and chattels of C D, (the te-
riant) iu ihe honfe he now duel's in, (or, on the premifes in his
yxAi&idon)fitaaie in in the county of for pouruL,-
being years rait, (or as the cafe is) due to me for the fame at
the day of lad pajl for, any other) and for
your fo doing, this pa 11 be your fufcient warrant and authority.
Dai^d the . day of iu the year
W T.
If the goods are removed from the prcmi.es, rne landlord may
diarain tntm, without ten days thereatier; in th.it cale the an-
• thority to diftrain mult vary-an its expieffion to fuit the Cafe.
Being legally authorized turdiftrain, you enter on tne premi-
fer, and ma ice a feifure of the diftnefs. If the diflreft b£ made in
a houfe, you feize a chair or other piece of furniture, and fay,
1 feize tr is chair (or whatever it be) in the name of all the goods,
in this houfe, for we fum of pounds, being years
rent
RENTS. i377
rent (or, as the cafe is) due to me (or to W 7, your landlord)
on the day of laft pad (or any other) (and it tne
diftrefs be made b) any other than the landlord, you add) by
virtue of an authority from the faid W T, for that purpofe
You then proceed to take an inventory of Co many goods, as
you judge will be fuftlcient to cover the rent diftrained for, and
a!fo the charges of the diltrefs. Having done this, you make a
copy of the inventory, according to the following form.
An inventory of the feveral goods and chattels did rained by me
A B, (tlos distrainer) the day of in the ycaf of our
lord in the houfes, out koujes, and lands [according to the
caje) s / C D, [the tenant) Jituate in of the county of
[and if the diftrefs b \ made by any o her than the landlord, fay,)
( "Ty the authoriiy~ind <n the behalf of \V T> your landlord)
for thefum of pounds, being years tent, [or as the
cafe is) due to me [or to the faid W X) on the ' day of
ia'dpaji In the dwelling houfe, one table, fix chairs &c.—■
In the cow houfe, fix cows, two calves &c.—
At the bottom of the inventory you fubferibe
the following notice to the tenant.
hi dr. C D. Take notice, that I have this day difl rained on the
premtfes above mentioned, the feveral goods and chattels jpecifed in the
above inventory, for the fum of pounds, being years rent
[or, as the cafe is) due to me (or, to the faid WT,) on the
day of la (I fafl, [or, any other) for th* faid premifes\ and
that unlcjs ycu fray the faid rent with the charges of didtainiug
for the fame, ivilhin ten nays from the date l.oeof, the faid goods
and chattels wiit be fold according to dnv. Given under my hand
the day if in the year of our lot d
A B, fhprifF, (or conilabh )
A true ccpy of the above inventory and notice mufi timer be
given to the tenant himf-lf, or left at his houfe; or, if there be
no houfe, on the mod notorious place on the premifes. And
it is proper to have a perfbn with ycu when you make the dif-
trefs, and alfj when you ferve the inventory and notice, to exa-
mine the i.-.venttry, and to attefl, if there be occafion, the re^
guhrity of the proceedings.
The fafeit way is to remove the goods immediately, and in
your notice to acquaint the tenant where they are removed: but
it is now moll- ulual to let them remain on tne premifes, leaving
a man in polieffion till you are entitled by law to fell them.
373 RENT S.
xvii. Precedents of replevy bonds
Replevy bond to pay the rent at the end of 3
months, on left. 1 of Reviled Code p„ 161.
JL.tvj all men ly tl\'} prefects that we C D, of ifc. and D S,
oftje. a re htltl and final, Icnnd unto A B, (the landlord) in the
jail and jni}fum of (double the rent) current money cf Fir-
fluid j to I e paid to the fia'J A B, his certain attorneyids ex ecu-
tors, admnifirators or aff'i>'3 for the true payment where f vat
biiitl curjdvcSy our heirs, executors and aimnifiraior s firmly ly
thije pufintSy Jelled with bur fealty dated this day cf
ai the year ,
The condition of the above obligation is fuch, that whereas
divers gunis cf the Lid A B, (here exprefs the kind) have been
d:,tjLr>- J by L F, iheriff (or conjlable) to fatisfy the fum of
due to C D, fur arrears of rent, the colts of which diiirefs
amount to which Lid goods have been refhored to the Lid
A Ly on his entering into band with fulficient fecurity to pay
tin Lid rent and colts of dilfrefs, amounting at the end
».f r, i.e months, now if the fad A B, his executors, or admi-
r.iuset^is, ikall, at the end of three m.anths next fallowing the
tLte hereof, pay to the Lid C D, his executors, adrainiftrutcrs,
or itiiigns, the fum of [the amount of the i eat and csjis)
w.Li lawful interelt thereon, then the a'hove obligation to be
\UiC,, or ciie to remain in full force.
Jj scld upon three months credit.
The bond and condition to be the Lni,e as f >r goods f/u by
e: '-vutiuiii oniy, in the recital, Ly, the goudo were luuwd Jo.
re.n,
IK. Of the action of replevin.
An adlion of replevin, the reguhr way of contorting the va-
lidity of the tranlaction, is founded, upon a dilbrefa takeu wrong-
fully ani without fulScient caufe: hciag a rt-deli/crv or tne
pledge, or thing taken in diftrefs, to the owou, u:^u pis giv-
ing fecurity to try the right of diftrefs, aim to rertoie it il tire
right be adjudged againrt him. 3 B.acks Com. 14}.
It is impoiame on t jC limited plan of the prcLrit publication
to gj fully into the law and practice cf replevins* I muli there-
tore refer to a very valuable treatife on that fubicdt, written by
t'erd
R J5 N T S. .379
lord chief baron Gilbert; and conclude this title by a reference
to the ail of Afiemwly for regulating the fuirg out writs of re-
plevin; with the addition of lome fuecial pleadings.
See Virginia laws page 163. fecuons 15, 16, tk 18, of the
Revifed Code. i
Pleadings in replevin.
DECLARATIO N.
county to wit.
B D, was juftvmned to anfever A P, of a plea, *rhy he tod: the
gpods and chattels of him the J aid A P, and urfofly detained them,
againjl furety and fledges, unfit &c. dnd vjhereugnn the fane
A P, by CA, his attorney complains, that ihe faid B 1>, on the
day of in the year and in the year of
the commonwealth, at the county of or efaid, in a certain pJa :c there
called (drfcribe the place) took the goods and chattels fed-
lowing, to wit, (deferibe the goods very particularly) of the jaid
A Py and unjuflly detained them againjl jurety and pledges, until
idc'. whereby the fame A P, fays, that he is prejudice d and hath
damage to the value of And therefore he brings fait ''Sc.
Avowry for rent in arrear.
BE),]
at the fuit of > In replevin.
AP J .
~ And the Jaid B D, by F A, his attorney, comes and defends ihe
force and injury, when o c. and well avows Ihe taking the goods
and chattels ajorefaid, in the faid place inhere C5-V. and jujlly ffc.
becaufe he fays, that ihe fame place 1where the taking* of the goods
and chattels aforefaid, is: fitpfofod to be, did contain in it felf a cer-
tain piece or parcel of 'tend, ivitb the appurtenances, in a place
called in the county hforefoid-, of ivhich fiid piece or pewc-d
of land, with the appurtenances, the Jaid 3D, before the laid tune
uhen iSc. was fized in his demefne as of foe, and being jo ties'-so f
feized, the foil B D, before the /aid time when kSc. - to wit, on
the day of in the year and in the year
of ihe commonwealth, .at the county afore/aid, dermful the fame
pir.ee or parcel of land, with the appurtenances, to ihe faid A Pj
to hold to the fame A P, and his ajfigny from the day of
then la ft pafl, before the date .of the fa trie dernii'e, for the term of
years from thence next enjning\ and fully to be complete and
end, yielding and paying therefor yearly, and every year, to the
faid B Dy or his affigns, the rent of, of lawful money:, by
virtue.
3So
R E N- T S.
vPtw of which (aid demife the fa id A P, entered and was poffeffed
(j+ r>c i 7re piece or toircn ol lan I with the appw tenances, and the
ft mi piece co *arm 0' land nith the appurtenances for year
occrpu </; an . hec .u/e if fum of of the rent aforcfaid, after
the ticmf f m- -•, jor the faid ye-ir, In the d.y of
la/i i a;!, and bfore the 'taking of the grods and chit'els aforcfaid
were to the. fume B D, in or rear and unpaid, the fame B D, well
avows t! e luring of the goods and chutitls nforejala in the faid pi ace
ac> v;v &c. andtjufliy &c. for the jaid fum of to tie fame
B,1J, in fo 7n afar if aid., being .n arrear, as in the pice or parcel
of land ivi.h the appu tenances aforcfaid, charged and bound: and
this he is ready to verify; wherefore he prays j <d?ment and a re-*
turn of the goods and chattels of or faid, to be adjudged is him.
Replication that the rent was not in arrear.
A P ]
v > In replevin.
B D J
Jnd the faid A P, fays, that the faid B T),for the reafons before
alleged ought not to avew the taking of the goods and chattels
aforejaid, in the faid place where iSc. jiiji, bccauje he fajs, that
the faidfum ,of of the rent aforejaid, at the faid time when
&c. tie> e not in arrear and unpaid to the favl B D, nor was any
part thereof at the Jaid time when & c. in arrear to the faid B D,
as the faid B D, in his avowry aforcfaid hath above alUged',
and this he prays may be enquired of by the count y: and the faid
B D, likewfe &c.
Where the adtion of replevin is again!! the bailiff or perfon
takirg the diftrefs, inftead of an avowry, he makes conufance
as bediff <S:e.—the forms of the pleadings differ but little from,
the above, and may be found in almott every practical book.
RESCUE.
ESCPUS is an ancient French word, coming from rcf-
J3k. carircr* that is recupcare, to recover; and lignifies a for-
able teiting at lihe ty agahitt law, a perfon arrelied by the pro-
cus or cooiL- of iuv. i lnji. 160.
If the parr y rtfeued he am fled for felon'', and in the cuftody
of a private per fori, the relcuer mufr have notice cf the arreit:
ofhtnvik-, if in cuflody of an officer. 2 II. H. 606.
It is not felony to refcue a perfon taken on a general warrant.
I H. H. 578 —Nor unlets a felony hath been actually commit-
'ted. Hale's PI. 116. Altho'
RESCUE. 38t
Altho' a prifcn breaker may be arraigned for that offence, be-
fore he be arraigned of the ciime for which he was imprifoned i
yet he who rtfeues one imprifoned for felony,' cannot, according
to the better opinion, be arraigned, for fuch offence, as for a,
felony, till the principal offender be attainted ; but he may be
immediately proceeded againtt for a tnifpritton, 2 H<iw- 140.
And therefore if the principal die before the attainder, he (hail
be lined and ihiprifoned. Hale s PL 116, • .
Alio, if the principal be found ,not guilty, or guilty of » crime
not capital, the refcuer ought to be dilcharged of felony; but he
may be fined for the mhdemeanor.f I H.'H. 598, 599.,,
An indictment of refoous,i muft fet forth the nature and carfo
of the imprifonment, and the fpecial circumttances of the foot in
que ft ion. 2 Haw, 240.
A hindrance of a perion to be arreted, that has commifod
felony, is a mifdetxieanor, but 110 .felony; but-if the party be
arretted, and then refcued, if the arrctft was for felony, ,uk: ref-
cuer is a felon; it for trefpafs, fneable. Plait's PL 116. i.plaw.
140. • • v
Altho' the felony for which a man is arretted, be not within
clergy; yet the refcuing him is within clergy., 1 If, it, 509.
607. ,
For the dedrine cf refines rn civil cafes, fee title 4 Sherijfid,
RESTITUTION cf StOLEN GOODS,
BY Virginia laws page 114 of the Rev fid Code, 4 If any fe~
* Ion or felons do rob or take away any money, goods, or
* chattels, from Any perion within this commonwealth, whether
4 from their perfon or otherwise, and thereof the fad f Ion or fe~
4 Ions he afterwards fconvicled or attainted, then the party for
4 robbed, fliall be reftored to his laid money, goods, or chattels;
4 and the court before whom, luch Mob thai I be convidlej or at-
4 tainted, ttiall baye power to award,' from time to time, wiits
4 cf reditution accordingly.'
On a flmilar law in Ft.gland, the following determinations
have been made. - r
If the owner prefers a bill of indidlrpent, which is found, an 1
die ttlon flies, and is outlawed, the owner flmii have reliituii-
on; for'he gave evidence upon the inuidtrnent, which tno' it
not a cOr.vidtion, is the giound of die outlawry, yhLh is >an
ait-'inder, I H. 1*1. 545* \
So, if the oiFender is convicted on the evidence of the fcrvant,
the mutter fhi.il have rettitution. 1 ii. H. 545.
Y y If
382 Restitution of Stolen Goods.
If the teffator is robbed and the thief is convict upon the pro-
curement of the executor* fuch executor fhall have reffitutihn.'
3 Injh 242.
A man Hole Cattle, and fold them in open market; the fherifF
fcized the thief and the money, and he vfras convidted and hang-
ed at the profecution of the owner of the cattle, and he had ref-
titution of the money; for tho* tire flatute gives power to the
juflices to award reffitutien of the money or goods flolen, and
though the money in this cafe was not Helen-, ye,t becaufe it did
arile by Healing, it fhall be within the equity, though net in the
very words of the flatute. Noy. 128.—See Lofffs Reports 88,
where it was held that the proceeds of a bank note ftoien, might
be recovered by the party robbed, in an action of trover.—See
{'Ha I H. H. 542, 3, 4.—2 'Hawk. 170. Kely. 48. Cre. Eiiz.•
66r.
If the offender be convidt upon the evidence cf the party rob-
brtd, or owner, he fhall have reflitution, though there were no
frefh fait, or any enquiry by inqueft touching the fame* ami
this is the eonftant pradbice. 1 H. H. 545.
Yet if it fhall appear to the court, that the party hath beent
guilty of grofs negle&in profecuting; it feemeth that in fuch
cafe he fhall not be intitled to reffitution. 2 Haw. 171.
If the owner takes his goods again of the offender, to the in-
tent to favour him, or maintain him, this is unlawful, and pu-
nilhable by fine and imprrfonment; but if ha take them agatii
without any fuch intent, it is no offence. 1 fi. Hi 546.
H.if a'tef the felon rs convi&ed, it can be no colour cf crime
to take his goods ag-un, where he finds them. 1 H. H. 546.
Rfox, Rout, and Unlawful Assembly.
I. What is, a riot, rrut, or unlawful ajjembly.
II. How ryl rained by a frredts p rscn.
J If. II.w by a ccnjiable, or other, peace ojfeef.
I1/, li'.w by the r.ti of ulfhnbfy.
I. What is a riot, rout, or unlawful a£cmbly.
"TT J" hi EN three perfhns or more fhall afiembie' themfclves
V / • tnS'"ther, with an intent mutually to ailiffcpe another,
agairff any who fhall oppefe them, in the execution offome en-
terprizi of a piivate nature, with force or vio:tnce, againff the
peace,
Riot, Rout, and Unlawful Aflembly. 383
pea&e, or to the manifeft terror of the people, whether the aft
intended were of icfelflawful or unlawful; if they only meet to
fuch a purpofe or intent, although they (hall after depart of their
own accord, without 4oing any thing, this is an unlawful af-
fembly
If after their firft meeting they (hall move forward towards
the execution of any fuch aft, whether they put tbei' intended
purpofe in execution or not; this according to the general opi-
hion, is a rout.
And if they execute fuch a thing in deed, then it is a riot, 1
Haw. 155, Dalt. c. 136
If the jury acquit all but two, and find them guilty, the ver-
(lift is void, unlefs they 1*2 indifted together zvitk ether rioters
unknown, becaufe it finds them guilty of an offence, whereof it
is impoffrble they can be guilty; for there can be no riot where
thete are no mpre perfbns than two. 2 haiv. 441,
But if there are feveral defendants, and two are. found guilty,
anil tint others die untried, it lhali be intended a riot. Burroiv.
1262.
infants under the age of difcretion are pot punifhahle as ito-
tors. 1 Haw. 159.
B a number of perfons being met together at a fair, or mar-
Let, or 011 any other lawful and innocent occafian, .happen on a
fuiden quarrel to fail together by the ears, they are not guilty
of a riot, but of a fuddeu affray only, of which none are guilty
but thofe who actually engage in it; becaufe the defign of their
meeting was innocent and lawful, and the fubfequent breach ci
the peace happened unexpectedly, without any preyious intention
concerning it: Yet it is find, that if perfons innocently aiiem-
bled together, do afterwards upon a difpute happening to arife
among'them, form themleives into parties, with promifes of
mutual abidance, and then make an affray, they a;e guilty of a
riot; becaufe upon their confederating together with an intention
to break die peace, they may a$ properly be (aid to be aflcmbled
together for mat purpofe from the time of fuch confederacy, "as
if their fisff coming together had been oh fuch a defign. 1 Hazv.
150.
in every riot there myft be. fame fuch circumftance-s, either of
aohial force or violence, or at lealt u£ an apparent tendency
thereto, as are naturally apt to ffiike a terror into the people;
as'the ihew. of armour, threatening fpeech.es,, or turbulent gef-
tures; fcr every fuch offence mult be laid, to be done to the ter~
ror of the people: And from hence it clearly follows, that afr
femblies at wakes, or other fqffival times, or meetings for ex-
ercife, or common fpom or diverfions, as bull baiting, wreffling,.
and fuch like, arc not riotous, 1 Haw. 157, It
3^4 Riot, Rout, and Unlawful AfTembly.
It is not material whether the thing intended to he done be
lawful or unlawful in itieli: Thus if in removing a nuifance,
entering into land &e to which one of the p^rty have a right of
entry, any violence or tumult is offered, it is a riot. I Haw. 158,
If. How re ft rawed by a private perse?:.
15y the common laxv, any private perfon may lawful'1,' endea-
your to (upprt'fs a riot, by Haying thofe whom he ihul fee en-
gaged therein, from executing their purpofe, and rdfu by Hop-
ping others whom he ihaH fee corning to join them. I Haw.
?59-
Iff. How by a conjiabk or other peace oncer.
By the common law, the iherff", conffable, and orher pees,
officers, may and ought to do all that in them lies, towards the
fuppreffing of a riot, and may command all other pcrfons to af-
lift therein. 1 Haw. 159.
IV, How by the act of Ajfemldy.
In order to fupprefs a not, rout &c. power is gwe i to fre^
or two j nil ices of the peace, at leaff, and the fh-riiF, or um..or--
fherifFof the county, by Virginia laws-, page. 38. jcti. r. of toe
&evijed Code,—'•which fee.
It is faid chat this power may be exe relied by the jufflces,
upon credible information, as well as upon their own view;—•
and that if they meet perfons, coming from the place where t ey '
have heard a liot was committed, arm.yed in .0 riotous manner,
they may arreil them. See 1 Hawk 16 i.
By Virginia laivs page go. Bet 2. of the Revifed Code, power
is given to the j-iffices within one month afcer the riot &c. to
furnmon 24 fit porf nw, 12 of which fhall conftitute a jury to.
enquire of the laid riot &c.
The justices may record the rior whether the offender s be in
Cuffody at the fame time or have t leaped. I Hawk. 161. '
1 he record cd a riot taken- on view of the juftsces is not fra-
verfable, But if it Jtrul the p miies guilty of any other offence, as
f Jony, malm fee. it may be travcrfed as to thrfe offences:—And
as the panics can only avail themfelves of the ir.fuffkiency of
fhe record, too much certainty cannot be oblervt-J. See t
Ilavjk., 162. »
. By Virginia laws page 38, feft. 3, 4. 5, 6, of the Revijed
Code. If the riot &c. is not found by reafon of partiality in thq
jury -
Riot, Rcut, and Unlawful Aflcmbly. 385
Jur^r, the juftices See. fliall certify the fame to the general courf;
and on failure of thejuliices Sec. a cpmmiflion (ball go from the
general court at the initance of the, party grieved;—no perfon to
he imprifoned for a riot, for a longer fpace of time than one
year. See the above recited ad7. \
(A) Record of a riot c?z viexz\
county to wit.
Be it remembered^ thai on the day of . in the year
IVe J P, and IC I\ two of the judices of the peace for the
toaimonwca!' affgned to keep the peace in the faid county, and
A S, fir riff of the faid county, at the complaint and rectief of A J,
of in the county a for ejaid) yeoman, in our proper perfons
have come to the manfion houfe of him the faid A J, in * aforefaid,
end then an i there do find A O, cf yeoman) BO, cf yro-
man, C O, of yeoman., and ether, malefactors and ehfiwbers
of the peace of the faid commonwealth) to us unknown) in a war-
like manner arrayed) to wit) with clubs) fwpraS) and guns, un-
lawfully, riotoufy) and routoufy ajjembled, and the fame houje he-
jetting, many evils a gain ft" him the faid A J, threciningx to the
great difu^bance cf the fence of the faid commonwealth, and terror
of the people, and againjl the form of the flaiute in that cafe made
and provided, rind therefore we the aforefaid J P, iv P, and
A S, the aforefaid A O, B O, and C O, do then and there caufr to
be arrcfled) and to the next jail of the faid'eommtnwealib) in the
county aforefaid, ito be conveyed) by' our view and record of the nn-
lawful a firm! dy, riot) and f out aforefaid conviCted, there to remain
every and each of them reffectively, v. mil they fiall -be difcbarged
by due courje cf law. In witnefs whereof to this our prejent re-
cord tve d* put our feals. Dated at aforefaid, the day and
year ay or faid.
{B) Commitment of the rioters upon view.
countv to \vif.
J P, and K P, two of the juflices of the peace of the common-
we a A, affgned to keep the peace within the faid county, andvA S,
fhcrijf of the faid county; to the keeper of the jail of the faid county.
Vvbcrcas upon complaint made unto us by A J, of yeoman)
we did this prefent day of go to the houfe of the fiid
A J, at a'orefaid) and there did fee A O, of yeoman,
B O, of yeoman, C O, cf yeoman, and other malcfaClors
to us unknown, ajfembled together in an unlawful, routouS) and
riotous manner, to the terror of the people^. and againjl the peace
and
386 Riot, Rout, and Unlawful AfTembly.
dnd dignity of the conimvixvealth, and againjt the form of the fla-
thte in 'that caje made end provided: Jl/e do therefore fend you,
by the bringers hereof the bsdiei of the faid A O, J. G, and C O,
convicted of the ja A riot, rout, andunlav^ vd ajferrmly, by out own
v'uXV) iljii'n.ny, and rectord\ commanding you in the'name d the
commrvvjeaUh) to receive them, into the faid jail, and them and
efvr>-y f them reffectively, there fafciy to kef, vitil thr.y be dif-
charged Iy due cur!e '''law: Given lender cur hand: andjtals
at ej artful J, m toe county of or faid, the day ana year afore-
/?#• '
fC) Precept to fummon a juiy.
countv to wit. ^
J P, and K P, two of the ju/lices of the peace of the common-
wecl'h, for the county aforefaid, To the jh:rif of the fui county,
greeting: On the behalf of the commonwealth, owe comma' ux yen,
that you ca'ufe to come before us at in the' county afcryavl,
on the iday of '' ' next erfuing, twenty four h one ft and
iaujul men of the county aforefahi, to enquire for the common-
wealth, and for our indemnity in this behalf, upon ibeir oath, of
certain riots, routs, ard unlawful afjembUti at in the county
afcrtfaid, lately committed, as it is Jaid, And tins you fmili in no
wife omit on l ciin of twenty pounds.' Given under our hands and
feats at afercfaid, in the County aforejaid, the fay of
m the year of the commonwealth.
JURORS, OATH.
You fhall true inquiry and preferment make of «]1 fuch things
as fhali come before you, concerning a riot, rout, and unlawful
alTernbly laid to have been lately committed at in this coun-
tyj you fhall fpare no one for favour or affediion, nor grieve
any one'for hatred or ill will, but proceed herein according to
the beft of yobr knowledge, and according to the evidence which,
fhall be given to you. So help you QcH
The oath Which your foreman hath taken on his part, you
and every of you fhall well and truly ob.ferve and keep on your
parts: So help you God.
(£)) 'The injiifuion, inJiflment or presentment
oj, the jury.
county to wit.
An inquilition for the commonwealth, indented and taken at
i# the county aforefaid, the day of in th? year
of
Riot, Rout, and Unlawful AfTcmbly. 387
of the commonwealth^ by the cath ad the juror's
names) honeft and ] £t w fu' men -of' the, county alorefaid, htfore
J P, and Iv P, jyftices cf the peace for tne a unty afotjefridi
who fay upon their oath afordaid, that A O, cf ^carnan^
BO, of yeoman, C O, of >eom:tn, together wj'm other
malefactors and diftujhers cf tha ft. ve ;f the faid, common-
wealth, to the jurors aforefaid, as yw-r unknown on the day!
of now lair patt, at , rJordUd, in ths-county aforefaid,
with force and arms, to wit, wi'.h cbdv, 'words and guns, un~
lawfully, routoufly, and riotoufly, Ju aidiuhic, to diihwbthe
peace of the faid commonwealth, and fo being that and there'
aflembied and gathered together, the nunfton houfj of A J,,
yeoman, at afcrefaid, unlawfully,, foutcufiy, and riotoufly
did enter, and in and upon him theE.d A J, then.and there un«.
lawfully, routoufly, and riotoufly did make an aflaub, and hirrt
the faid A J, then and there unlawfully, routoufly, and riotoufly
did beat, wound, and ill treat, in diflurbar.ee, of the peace of.
the faid commonwealth, and to the terror pf its cifzens, again It
the form of the ftatute in fuch cafe made and provided, and
againft the peace and dignity of the commonwealth.'
A B.
' C D.
E F, &c.
(FJ Certificate to the general court.
WeJP, and K P,' two of the commonwealth's juftiees of
thfe peace fot the county of and J 3, fileriIf of the (aid
county, do hereby certify, that on the ' day of we receiv-
ed credible information, that a great riot, and unlawful aflem-
bly, had been committed by divers periods at ' in the ffld
county, who had difperfed Jthemfelves, whereupon we made our
precept to the fherifF, to fummon a jury of twenty-four fit per-
fons to meet us at the plade afore faid, 011 tins day, to enquire of
and concerning the faid riot} and the ihetifF having returned a(
jury of twenty- four fit perfons, twelve whereof appeared, and
were fvvorn to enquire < f the faid riot: Whereupon it was fuiiy
proved that A O &c. of Sic. labourer, did on the
day t)f Eft paft unlawfully aiiemlde, armed in a hoflile
manner, to wir, with guns tic, (here chfcribe their armour an I
anions particularly) nevcrthelefs the jurors aforefaid diJ not find
the faid riot, by reafon that CO, DO, tic* were then and.
there prefent, and did labour with the laid jutors, by embracery
and maintenance, not to find the fame as appeared to us,—Cer-
tiaed See,
To the ho*, ths judges of the general court. Rivers
338 RIVERS.
FEW pafts of the act of Afiembly refpe&mg obit ructions cf
rivers, o& other' water courfes, fall under the jurifdidion of
a juftice of the peace.—*The following fe&ions of the ad in the
Revijed Code, chap. 405. page 208, are all that will be noticed.
By feff.' 14. A peifon feeing in any water courf'e, any dam,
hedge, weir, feine, drag, or other itoppage, whereby navigation
or the paffige cf full may be oblbruded, except for the purpofe
cf working feme machine or engine of public utility, (hall be
guilty of a nuifance.
•Sett. 15. The county courts may contrail for the clearing cf
rivers within their county;—provided that it fhall not extend to
clearing fuch obftrudions as require the ufe cf gun powder; nor
to the rivers Mekerrin, Nottoway, Roanoke, and Rappahan- #
rdck, above the falls.
^SeH. 16. To fall a tree acrofs any run on which there is a
public bridge, without removing it in 48 hours, fubjeds the
offender to a forfeiture -of two dollars for each tree.
IVarrant againjl a person for jailing a tree
into a river &c.
county to wit.
Whereas information has this day been made to me by A Jr
that A O, of the laid county, did en the day of lalt
pafl, feJi a tree into the river, (or creek, cr run, as the cafe
may he) acrcfs which feveral pub.ic bridges .are built; anil did
not cut and carry away the fame within forty-ei*ht hours there-
after: Therefore I require you &c.
To A C, Conftable,
II O A D S.
TT has been ufual in treatifes of this kind, to Confider the law
^ "dp;-ding*Reads, undeV t!>e title cf highways: 'hue as the term
* Reads,' W adopted by the legislature, and is generally better
ui.derilood than' highways, X have thought it muff proper to ufe
this title;—inferring 10 much of the adt of Afletnbly only as falls
under the notice of a lingie magiftrate.— V. L page 29. cf
the Rev ifed Cede. > ■ ■
By jedt. 4, of the a^cve law, All m2le labouring perfons cf
the age of 10 years or upwards, except thole owning two or mors
faves of that age, are required to work on lbme public road;—
en failure, aflat notice by the fuivcycrj to attend \b:(h proper
tools
ROADS, 3S$|
tools, each perfon forfeits feven (hillings and fix pence, to be paid
by himfelf, if a freeman of full age,—if an infant, by his parent
or guardian,—and if a (lave, by his over fee r or mailer.
By jtft* $. The clerk of Che court within 10 flays after the
appointment of a fuiveyor of a road is to deliver a copy of the
order to the (her iff, under the penalty of 15 (hillings;—the fine—
riff within 15 days after the receipt of the order (hail deliver it
to'the furveyor, under the penalty of 15 (hillings.—And each
clerk fhall once in every year fix up in the court- houfe, a lift of
the names and precin&s of all the ibrveyors of public roads in
his county., under the penalty of 15 (hillings.
By fed. 6. Every furveyor of d read (ball keep it well cleared
and fmoothed, and 30 feet wide;—at every fork, or croft roadi
a fign-poft, or (tone (hall be erected, and conftantly kept in re-
pair, directing in large letters, to the moft noted place to which
the read leads, and may take ftone or wood for that pur pole
from any adjoining land, for the expence of which, the court
(hall reimburfe the furveyor in their next county levy;—all ne-
ceffary bridges and caufeys to be made by the furveyor, 12 feet
wide, and fafe, and for that purpofe may take timber, ftone, or
earth from any adjoining land, the lame being ft ft vdued by two
honeft houfe-keepers appointed arid (worn by a juffice; but not
to take any earth &c. from a f t in a town, with rut p* te-.'Pion
of the owner;—where wheel carriages are nee diary, a m ; ice of
peace may empower the furveyor, to impreft them f on per-
fons whofe hands are liable to work On his road, and ?p?w int two
honeft houfe-keepers, who, being fworn, (hull value by the day,
the ufe of fuch carriage and horfes, upon a certificate r/ which
valuation, and of the furveyor, of the number of dav\ the owen*
(hall be entitled to an allowance In the next county levy, in
like manner (hall the owner of timber &c. be entitled, on a rcr-
tificate of the houfe-keepers.—Every furveyor failing to do his
dutr herein forfeits 15 (hillings fsr each offence.
By fedt. 9 If any perfon (hall fell a tree into a pubfb road,
or into any ftream of water whereon there is a public bridge,
and (hall not remove it within 4b hours,—or kill a tree within
the diftance of 50 feet from the public road,—ordeftroy or de-
(ace, a lign poft^ it lhall be deemed a nuibnee.—The penalty
is .10 pounds,—Where any fence (hail be made aedft any pub-
lie road the owner or tenant of the land lhall pay 10 (hillings for
every 24 hours it fhall be continued;
By fed. 10 The own<?r or occupier cf a dam over which a
public road paffes, (hall keep it in repair 12 feet wide, and (haft
make a bridge of like breadth, with tlrong rails on each fide,
over
7
290 ROADS.
over the pier-bead, flood-gates Sec. under penalty of 10 (hillings
for tvery 24 hcurs failure.—But where the mill has been de-
flioyed by accident, the penalty (hall not be recovered until one
month after the has been repaired fo as to have ground one bu-
ft J of grain.
By left. 11. All the penalties in this a&, not othersifs direct-
ed (hall be one moiety to the informer, and the other to the ufe
of the county, recoverable with colls, on warrant, petition, or
adlffn as the cafe may be. Anyjufiice, who, upon his own
view, Hull diicover a road, bridge, caufey, or mili-dam, out of
repair, (hall ilTue a warrant againft the delinquent, and if no
rtafcnable excufe be made for Inch default, may give judgment
for the penalty and colls, not exceeding 25 (hillings, or the of-
Anders may be prefented by the grand juriesj—and in all con-
viotioD?, on vie w of a juftice, prefentment, or private inferma-
tffn to juftiees, where there (hall be no evidence to ccnvidl the
off nier but the informer's own oath, the whole penalty fhali be
to if e county, to be collected and accounted for by the fheriff,
as county 'evies;—and every jullice on making a conviilion
fhall certify the fame to the clerk cf the county, who fhali year-
ly, before the flrlt day of March, deliver to the fheriff a lilt of
aft the offenders fo certified, 2nd of a/1 others convidled in court,
within one year preceding, of any offence againft this a£t.
By fefi. 12. Prolccutions for offences againft this a<5l are to be
commenced within 6 months after the offence, and not after.
(A) IVarrant for failing to send, or attend to
keep tloe road in repair, on seft. 4.
county to wit.
Complaint being this day made to me J P, a juftice of the
peace for the county aforcfaid, by A J, that F O, did on the
ffy cf Iaft, fail to go and alLft with proper tools, on the re-
quell of W S, furveyor of the road from to in the faid
ecunrv, to clear and repair the faid road (or to Jind W S, a jer~
van?, or male labouring paves above the age of fiteen years,
belonging to the fai'd F O) contrary to the act of the General
Aiiembly: T hefe are therefore to require you to fummon the
iai , F G, to appear before me, or fome other juftice of the peace
ftr the faid county, to anfiver the premifes. Given occ.
To AC, Conftable.
Judgment.
On hearing the within complaint, it being duly proved be-
fore
ROADS. 39 t
fo-e oie that the within named F O, did fuil to attend with pro-
per tools (or to fend male I ifauring Jh^cs belonging to him the
faid F G, above the a%e of ftxteen years) to affilf in iepa<ring the
Fid road, by which he hath forfeited fe-ven fiihr.gs and fix fence'.
It is therefore confidercd that the wnhin named F O, piy the
faid fum offro en fillings and fix pence, the one half thereof to the
ufe of the faid A J, the informer, and the other to the uF of the
faid county towards leffentng the levy thereof, together with
the ports.
4 Cofts Cents,
fBJ Warrant againfl the clerk, on sect. 5.
to wit.
Corn plaint having been this day made to me by A B, that
C D, was, at a court held for this county, on the day of
appointed furyeyor of a public road in the faid county^ arid that
EF, clerk of the faid.coupty court, hath fa led to deliver to the
fheriff a copy of the order of the Fid appointment wi;h;n ten
days after the fame vvas made, as the law directs*. You are
therefore required to fummon the faid E F, to appear before me,
or fome other juftice of the peace, of this county, to fhew caufe
why the penalty of fifteen'ihiiiings fhould not be levied on him
for his faid neghdl. Given &c.
f CJ Agalnft the fhertjj\
to wit.
Complaint being made by A B, that CD, was, at a court held
for this coqnty, on the day of ' appointed turveyor of 3 road
in the faid county, and,a copy of the otder for his appointment
was in due time, by the clerk of the court, delivered to E F,
dtputy flaerilf ofjhis county, and that he the laid E F, .failed to.
icrVe the Fid C D, with a copy of the Fid order wi'.hiu fifteen
days from the receipt thereof, as the law dire&s: You are
therefore dec. as in the former. , .
f 'D) Warrant on se5t. 6.
to wit.
Whereas A B, furveyor of the road from to hath,
given me information that the aififtance of wheel carriages is
neceffary for making (or repairing) a caufey in the laid road ; I,
therefore empower the faid A B, to imprds fuch necefi'arv wheel
• ' " carriages,^
392 ROADS.
carriages, draught 'norfes, or oxen, with their gear and driver,
belonging to any perfbo who, or their fervants or flaves, are ap~
poiired to work, on the faid road; he the faid A B, having procured
<k valuation by the day1 to be made thereof, by C D, and F F,
two bohePc houfe keepers hereby appointed for that purpofe, who
being fworn before me, or fome other jufbce of the peace of this
county, are to make fuch valuation, and give the owner or ow-
ners a certificate thereof to entitle him or them to an allowance
for the fame in the next county levy. Given under my hand
and feui Sic.
(Ej Certificate of the valuation. ,
We the fubfcribcrs, being firft fworn, purfuant to a warrant
from j P, have this day viewed a cart and two horfes, [or oxen)
with their driver, belonging to J K, and impjeffed by A B, to.
afPlt in making a caufey in the road, whereof he is furveyor,
and do value the ufe of the faid cart, horfes [or oxen) and driver,
to by the day. Certified the ' day of in the year
CD.
K F.
Certificate thereon by the surveyor.
I do certify that the cart, horfes (or oxen\ and driver above
mentioned, were employed ' days in the., ler vice lor which
they were imprefied. A B.
Fhe fumeproceedings tre bad for timber Cc.
(Fj Warrant againjl a surveyor, for ?2ot keeping
the road in repair.
to wit.
Complaint Szc. [as in the firfi). that S L, furv.eyor of the road
from to in the faid county, has faded to clear and keep
the faid rom in r< pair, contrary to the aQt of aifembly in that
cafe ma.f . Th; le are therefore, Sic.
T'm ment. the fame as the firfi, except as to the, fine% which,
s;i ih.s, iHjluUCe is fijiesn jhillings with- cojis,.
( GJ I Ear rant againf a surveyor for not setting
ajign pojl.
to wit.
Complaint &c. [as in the former) that CD, furveyor of a
road, in this county, at a fork or crofling thereof, hath failed, to
' • ' ► ' keep.
ROADS.
k^fcp, fet up, or renew, a (lone or poft where the faid roads
jofn, with infcriptions thereon, diredting to the molt noted place
to which each of the faid joining roads lead, as the aft of AfTern-
bly directs: You ate therefore See. (as in the fir/h)
'Judgment the fame as on warrant (A) changing the furn to ff-
teen foldings, with co/is.
The penalty for running a fence acrofs a public road, on feci.
9. feeras more properly recoverable by indiccment.
(HJ Warrant on seB. 10.
To the Jheriff of county, or any conjlable therein.
to wit.
Complaint being made to me by A B, that C D, the owner
(■j>- occupier) of a mill over the dam of which a public rord 1:. is,
in this county, hath failed to keep the faid dam in repair, of ihe
breadth of twelve feet at top for twenty four hours 1 dt p. If,
[or hath faied to keep a good andJufficient bridge twelve /• ft wide
at top, and well railed on each Jidey over the pier he i /, or wi t ,
in the faid mill dam, as the cafe jhail be) according to the act of
ailembly in that cafe made; You are therefore required to i u
mon the faid C D, to appear before me, or fome other j.i!': e
of the peace of this cqunty, to (hew caufe why the penalty <f
ten findings fhotild not be levied on hirn f r his hud fas urt, uc
cording to the faid a£t of afTqinbly; and then make return of
this warrant. Given 3rc,
(I) Judgment.
On hearing the within complaint, the defendant is proved :<
be guilty: Theretore it is coniidered that he pay tne ihin <>f
ten (hillings for his faid negledi, one half to the faid A B, a xl
the other to the ufe of the faicl county, and that he alio p«y uie
colls. Given under my hand Szc.
Colls.
(K) Warrant againjl the surveyor on seB. 11.
to wit.
Whereas upon my own view, I have found a public road in
this county, whereof A B, is furveyor, nor kept in good repair,
as the act of Aflembly directs. You are therefore lequired to
fummon the kid A B, to appear before me, or force other juf-
tice of the peace of this county, to (hew caufe why the penalty
of fifteen lhiiiings (hould not be levied on him for his neg'eii,
according to the faid adt. Given &c. (L)
R Q A D S.
(LJ 'Judgment on hearing.
- On hearing, the defendant not fhewing any reafonable cayfe
to the contrary, it is confidcred that he pay the fum of fifteen
•{hillings for his neglect, for the ufe of this county, to be applied
towards leftening the levy thereof, and that he pay the colts.
Given &c.
(M) Judgment by default.
The within named A B, being fummoned, and failing to ap-
pear and fhew any reafonable cauie to the contrary, it is confi-
dcred &c. as hi the laft. '
(N) Warrant agamjl the oimer of a mill.
to wit.
Whereas, upon my own view, I have found a mill dam, (cr
bridge ever the pier head or flood gates of a mill dam) belonging
to A !>,' of this county [or acrofs the boundary between this and
the county of . ) over which a public road leads, not kept in
good repair, as the a61 of AlTembly diredts: You are there-
fort 5:c. as in the former.
The judgment is the fame as in the former, changing the
penalty to ten {hillings. •
Indictment for a nuifance cn seel. 9.
county to wit.
The jurors &c. upon their oath prefent, That A O, late of
in the county arorefaid yeoman, on the day of *
in the y:ar and on divers other days and times, ^as well be-
fore as afterwards, with force and 'arms, at in the laid
county, in and upon the common highway, and public road
Uiere, leading from unto the town of did fall a tree,
and the fame-tree lb as sforefud hrh, from the aforesaid day
of in the year aforefaid, untif the day of exhibiting this
information, in a-ad upon the common highway afortfaid, to lie
and remain, hath permitted, and doth ft ill permit, to the gricv-
oris 2nd common nuilance of all the citizens of the faid com-
mon wealth, upon and thro* the common highway aforefaid go-
ir.g, pafhng, riding and travelling, again ft the fostn of the Ida-
tute in that cafe made and provided, and agmnit the peace and
dignity of the commonwealth.
For other offences againft the 9th fedHpn, vary the difcription
of :nc offence lb as to fuit the act of AHbmbly, and conclude
as in the above precedent, to the common nuifance &c.
Robbery
ROBBERY.
395
ROBBERY (from the French de la robe, according to lord
Coke) or the Saxon reef ere, according to doctor Horn) is,
a felonious and violent taking av. ay from the per [on of another^
goods or money to any value patting him in fear, t Hawk. J 47.
There are two kinds of robbery; from the perfjtand from
the houfe. Robbery from the perfon, will be treated of under
this title; robbery from the houfe has already been coniidered
under the titles of Burglary, and Larceny.
In the explication of this fubjed, I ihall confider,
I, What taking away will he sufficient to. con-
Jlitute robbery.
II, What Jhall be said to be a taking from the
person.
III, What kind of taking fall be said to be viofut.
IV, ' In what respedls robbbry differs from other
' larcenies, in the crime aridpunijhmeat,
I. What taking away will be fufHcient to con-
.fHtute robbery.
It feems clear that he who receives my money by my delivery,
either while I am under the terror of his aflault, or aftnrv/ards,
wfcilft I think myfelf bound in conference to give it to him by an
oath to that purpofe, which in my fear I was compelled j y him
to take, may in the eye of the law, as properly be faid t / rake it
from, me, as he \Vho actually takes it out of my pocket with' his
own hands. 1 Hawk, X47. /
Neither can he who has once actually com pleated the offence,
by taking my goods in fuch a manner into his pqHefh in, abet-
wards purge it-by'any re delivery. The outrage oif< r,cd to the
rights of Ibciety doth not Vary in its nature, became, iydibcUta!
In its confcquences. Therefore where a robber, hay-Jog taken
a purfe, returned it again,, faying, ' If you value v|nr puv!\
4 rake it and give me the contents;' but was ftir.ed jbcfore the
money was re-delivered, he yv*s found guilty;-'for thy continu-
ance of the property in fhs poifikfiorr ol the tobber (is not re-
quired by law. It Hauik. 147, ^
But he who only attacks megm order to rob me, hpt does not
take my goods into his pofieffiod, though he go fo far i\s to cut
off the girdle of my purfe, by reau-11 whereof it Jklls_to thelground,
is not guilty of robbery; but hfgYy punifhabie at the dom'rnon
law by fine and imprisonment, tic. for, fo enormous a breach of
the peace, i Hawk, 147, 148. ' Yet
396 ROBBERY.1
Yet in fome cafes a man may be laid to rob me, where in
truth he never a&ually had any of my goods in his pofl^flion; as
where I am robbed by feveral of one gang, and one of them only
takes my money, in which cafe, in judgment of law, every one
of the company fhall be faid to take if, in refpedl of that encou-
ragem'ent which they give to another, through thehojjes of ma-
tual afii fiance in their enterprize: Nay though they mifs of the
firft intended prize, and one of them afterwards ride from the
reft and rob a third perfon in the fame highway, without their
knowledge, out of their view, and then return to them, all are
guilty of robbery, for they came together with an intent to rob,
and to ainft one another in fo doing. X Hawk. 148,
II* What jhall be said to be a taking from the person.
Not only the taking away a horfe from a man whereon he is
a&ualiy riding, or money out of his pocket, but alfo the taking
any thing from him openly and before his face; which is under
his immediate and perfonal care and protection, iftay properly
enough be faid to be a taking from the perfon. And therefore
he who having firft aftaujted me lakes away my horfe ftanding
by me, or having put me in fear, drives my cattle In my prefence
cut of my pafture, or takes my purfe which in my fright I caft
into a bufh, or my hat which fell from my head, or robs my
fervant of my money before my face, may be indidted as having
taken fuch things from my perfon, I Hawk. 148.
b r\r is the diftinguifhing ingredient between robbery and other
larcenies. 3 InjL 68. Therefore where a thief clandeftinely
ftole a purfe, and on its being difcovered in his cuftody, de-
nounctii vengeance againft the party if he fpoke of it, and then
p-'de away; it was held to be fimple larceny only, and not rob-
fiery ; I tcanfe tiie fear, excited by the menaces of the thief, was
fubfequent to the adtof taking the purfe. 2 Roll* 154. 1 Hale 535.
Ill. What kind of taking JJjall be faid to be violent*
Wherever a perfon afiaulfs another with fuch circumftance: of
terror as j uc him into fear, and caufes him by reafon of fuch
fear to part with his money, thfi raking thereof is adjudged rob-
berv, vririrrer there were any weapon drawn or not, or whether
the perfon aiimnfcd delivered his tronev upon the other's com-
mand, or afterwards gave it him upon his ceafing to ufe force,
and begging an alms, for he was put into fear by his afiault, and
gives him his money to get rid of him. 1 Hazvk* 149.
But
• R , O , B B E ,R ,Y. 307
^ But it is not ncccfiary that the fa& cfa&ual fear fhould either
JbVlaid in the indi&ment or be proved upon the trial. It is fuf-
ficient if the offence bcchargcd to be done violently qnd a Rain ft
his will. And if it appear upon the evidence to have been at-
tended "with thofe circumfbanees of violence or terror, .which in
c®mmon experience are likely to isduce a man to part with hi$
property againft his confebr, either for ti)e, fafety of h'13 per fori,
crfoi the.prefervation of his charadkr and gotxi name, hit ^ wilt
amount.to a robbery. Fafter. 128 « . , •• ;!& 't
■ Iris certain,'that the claim of property, in(the thing taken
awayj without any eoiour, is no manner of excufe. i.liaxvk. .149.
IK' In what respects robbery differs-from other.
■ ' , ! larcenies, in the crime and punijhmsnt. '
' Firft, No other, larceny /hall have judgment of death, unlefs
the thing Rolen be above the value of twelve pence j hut robbery
fhall have fuch judgment, how fmall foever the. value may be of
the thing taken 'away.' I Hawk.', 149. .
Secondly, Other' larcenies whether from' the psrfon dr . not,
fhali not be fuppofed to' be done with violence or, terror,but
robbery is always laid as done on an aff-iuit ymh Violence, ancS*
putting the party in,fear."' 1 , " . .•,
Thirdly, But they all agree in this, that the .offenders had the
benefit of cictgy at the common law:. \ tiaxvkf \ 50,
i, Robbery is excluded frrorh clergy by V. I. p. 50. See t CIei>
%yf [Benefit of] f\ .'' \ , •' f. \ . v
Indidlment of felony for robbery! from the, pe 1*011
; d : -on the-highway.-.- r• •<
county to wit. ■
-The jurors &c. upon their oath prejeuty Fhat E H, late of the
parifh. of ■ in the county of - labourer^ on the ■ day of
' in the , year • ■■xvitb-force and arrns^ '-M the parift> afore-
faidy in the county aforfAd^ in ibeceranionwetdttfs hlpjway tbe>%
in and up.in e'oe' Vv T, in the peace of'God h.kd- of-the /aid com-
■ tnonwe&tthy tided and there bang, fe-oniimfly^ did make «n affautt,
and hhn the jaid VV T', in bodily feadand danger ■ of lis hfe, in
the kigbway.aforefaif then and there fehnio-ujy did /><>•■, and ■
of the value or dollars, (recite ail the gvu-CvS. taken) of the
~go ids and chattels- of the /aid-\V Tyfror&'tfa-fdtfwh • and again,}:
the will, of thefaid W T, in 1 the highway afar cfAd, ihtn and
■there felonisrifiy and violently did ji'enl, ■ iahcy and Carry away
againft the peace and dignity of the coihmsnvjcalth. '
>. ' . . " A a a - • - Runaways"
398 RUNAWAYS.
BY Virginia laws, chap. 131. page 257 of the Rcvifed Code,
Any perfon may apprehend a fervant or (lave, fufpedted to be
a runaway, and carry him before a juftice who, iif to him the
feivaht or (hve appear, by the oath of the apprehender, to be a
runaway, fhall give a certificate of fuch oath, and the diftance
in his opinion, between the place where rhe runaway was ap-
prehended, and that from whence he fled; and the apprehender
(hall convey the runaway to the laft menti®ned place, or deliver
him to the owner, or feme other authorized to receive him (which
the apprehender muft do, if the owner or overfeer refides in the
county where the runaway is taken upj or deliver him to the
jailor of the county or corporation, in which he was apprehend-
ed, and (hall be entitled to 1 dollar and 67 cents, and 10 cents
for every mile he (hall convey him, to be paid by the owner; the
jailor fhall caufe a defcription of the runaway's peifon and wear-
ing apparel to be fet up at the door of his court-houfe.
Seft. 2. If the owner claim not within 2 months thereafter,
the fhcrifl* or ferjeant (hall publifti a like advertifc ment for 3
months in the Virginia Gazette, and (hall hire the runaway un-
der the di.e£tion of the court, having put an iron collar, (tamped
with the letter F. round his neck, and out of his wages pay the*
reward fcr apprehending, and the expences incurcd on his ac-
count; but he Ihall deliver the runaway even before the time
expire, and pay the balance of the wages, if any, to him who
(hail claim, and who having proved before the court of lome
county or corporation, or a juflice of the peace of the county or
corporation, in which fuch runaway is confined, that he had loft
fjch a one as was defuibed in the advertifement, and having
there given fecurity to indemnify the (herift or ferjeant, fhall
pioduce the clerk's or the juft ice's certificate, of fuch proof made,
and fecurity given, proved by his own or ^noiher's oath, the
rtnaway when 0-ewn to htm to be the fame that wasfoloit, and
pay fo much as the expences aforefaid fhall exceed the wages.
Seii. 3 if the runaway is a flave, after the end of one year
from the laft advertiiement, he ihall be fold, and the proceeds
of rhe fide, with the balance of the wages paid to the public
t!C<du:tr, for the ufc of the owner, proving Ins property at any
future time, or otherwife for the ufe of the commonwealth.
Sedl. 4. if the runaway die in jail the expences (hall be de-
frayed by the public.
btif?. 5. If the runaway has crofted the bay of Chefafeake, he
(hail he delivered to the {herift of forne county bounded thereby,
who (hall tranfport him to the other fide, and caufe him to be
put into the hands of a cor.liable, to be by conftable toconftable
conveyed to tne owner, who (hail pay the (heriff 20 dollars, and
tin. coiitlabie 10 cents a mile. Seal.
RUNAWAYS.
SeSl. 6. The rewards may be recovered by warranty petition,
or a&ic-n, as the cafe may require.
Sect. 7, The jailor's fees are 25 cents for the commitment,
and the fame for releafement; for every 24 hours keeping 17
cents ;—a foeriff, feasant or jailor taking more than legal fees,
forfeits 4 dollars for each offence, befides what he had received,
recoverable before a juilice of the peace.
Magi/irate s Certificate.
county to wit.
1J P, being a jujlice of the peace for the aforefoid county, do
hereby certify, that B T, of the county of hath ibis day made*
oath before me, that ' a negro fiave whom he hath now brought
before me is a runaway, that he has jufi grounds to believe to:
faid fiave h the property of C M, of the county of that he was
taken upy on the day if in the year in the county of
at the houfe of and the dijlance, in my opinion, bet'veen
the faid place, where the fat.if ecu c was apprehended and the refi-
dence of the faid C M, (or if he fled from a p'ancation or qxii ter-
of the owner, then the diftance to luch place) is miles.•
Given under my hand andfal this day of in the year
The fees are l dollar and 67 cents, for taking up and 10
cents for every mile cf conveyance.—And if the runaway is car*
ried to prifon, and not to the owner, it feerns necei'Iary that the
magiftrate fhould certify the diftance between the place where
the Have was apprehended and the jail of die county.
IVat rant againfl a jhcr[f}\ jailor &c. jor taking
more than legal jess.
county to v/it. To confable,
Whereas complaint hath- this day been -made before me, J P, a
juflice of the peace for the county aforefoid by A f, of that B J,
jailor of the fail county, did on the day cf la ft pa ft de-
mqnd and take from him the faid A J, do Pars, as prifon fees
for the commitment, releafoment, and days maintenance of
a negro fiave, belonging to the faid A J, committed to the jail of
bis jaid county as a runaway : being more than the foes allowed by
law, Ihefe arc therefore to require you to fommon the faid B J,
to appear before me or fame other jujlice of the peace for tins county.t
to fnew cauje, why the penalty of four dollars Jhauid not be levied
upon him for his faid offence, and moreover refund all monies which
he may have received from the faid A J, over and above the legal
f((S. Given under my band an.d foal this day of in the year
400 R U N A W A Y S,
The form of judgments, executions &'c, may be found under
fides Forty, ijfaryau^s U-c. . -
< . -rr. , • A. «
, . - S .;A-.v'd3"r,.B :A ' T . i
' ! ■' -'A >' " -•
1Q)Y V. U page 207. §5. 4 If any perfon on a ihbAuh dry
-13 4 biall hur.l'df be.found labouring p.t hts'oyvn, or'any other
? trade, or calling, or fnali employ his apprentices, Jfrvants, or
filaves m Ubour, or other buhnef, except it b'e'iiVtbe ordinary
4 h^ufeho u offices of daily 'necefiltyj or cArr'work of ivotiEiy
* or charity, he th.A forfeit the fum of'one' do'iar and fixty A-
4 ven cents for eftfy fuch oftence,. .deeming every apprentice,
4 fervar.t, or flave, lo employed, and every day he flAl he A
* employed, as conftituting a difthict offence.' ' A A -
IVarrant againjl a- person for -labouring on. a
-. . ; . •sabbath day ', '
county to v/ifA " ' . '
•IVherta's cam* taint -and information on oaih^ .hath this d:.y lent
made to me j V, a "jujlice cf the peace for, the County afPtjauf by
A'J, Ih'tTt A O, of the /aid- county jkoe maker ^ vjtusfoAn'd laUurvdf
c:i his *trade, to vfif in makhtg.fi.oes, on- the . . day of . Ljt
faff on the day cotmnonly' called fubbath day, 'at the county afore-'
J aid. contrary- to the ad', tf Jfem'-ly in thai coje. made one! p rev id-
■edy rc here by the fa id. A Q, .batb forfeited th/ j\m cf one dollar and
fixty fifth hent^ jo*" bis faid ojhn&e:\ • Tbf- are therefore &c.
'1 he form of the judgmentAxecutio.n Ac. may be found under,
titles c Gat,ting f c Pork* c h'f'(trra),rf A. 1
Sacrilege, (See L ARC it, NY')
" '• \ S C IRE FACIA s;. . •
F, a judgment is recover*!, and no execution Aliped thereon^
l[ vni'iii: a year* and •«. day, the Jaw produmes pyaia facte, that
it is exhndt, and rt> execution can hTue on fuch, judgment, till
it is.ijeviveJ by jcirefacias,.—rOr an adieu of debt may be com-
tue«ced.»dn. the judgment* " which is now feldom dene. 3 Blacks,
fom. ,421. Co. Lit 39CX h. • \[.f 4
, But if execution ilTbes within the. ye?r, and is conttnuea
down td'extl years, a new execution may ifiue without a Jcire
fern. SCO,
y • ' ¥?•?
S C'l R-'E ;'F A C'l A S. 4ot
J, So, if judgment be entered. vvith 'flay of execution f by, agree-'j
tnent, 'till luch.a time;- there .needs nb fare facias 'till a year
and day after'the tbne agreed,i .4. 'Com', Dig. E43'' V. "
The defendant may'plead to.a fifeM on ?a 9ri£ibal
fuic. * ' ' N ' ' ' "•
Scire facias to revive a judgment obtained
■ • be-for Pa'Jingle miagijlr ate. a. ... <3
county tojwit. „ • - •-< .• t-'i;
Whereas.on the.,.,.A day of . , befogs .me.. J?, a juficf of the
peace for toe county_ aforefaid, A Cr recovered a judgment for d, ...
'tii(iars,j:r debt, a ad. cents, for his cofts, a gam ft A D, it; hereof
he is conviti as appears to me; and forasviuch .as the^faid A -C,
hath complained io me that he hath not received anyfat is/"adtion for
h-s jend debt and eft's; Wherefore, 'mihe'name-cffthecomuioinvefiih,
1 command you to Jamnion the. faid A D, to appear before me at
in the county afirefaid, on the day of to jhevj caufe
why execution fooitld not he made of the debt and cojts a fore fa id;
and that yen he then there to fievj haivyau have executed this xbar-
yani. Given Uc.
Scold, (See NUISANCE.) ,. . 1 .. _
A 'S' E ■ A . M .E ' i N.'';
THE Congrefs of the United States'having pdiTed a law for
the regulation of teamen,' we mult 'rc-fer' tb' the-Appendix*
£No." 2.) of this work, where the' fubjeff will be. treated of uh- '5
der ' the duties cf a jfiiiee of the,peace arifng under 'the layJs'hfi
ft he Untied States.* ' •' , .
"If the kec.jxr of a ravern fell any liquor _ tb'a Sudor i 1 affual'
pay, on credi":, , he {j-a'.l not'. be1 entitled' to recover the ' jbrrce '
thereof} and in'aoy ivdiran'" Ac, brought fat thetamdf ir H.iull'
be di (miffed, and'the d<fdn rant recover double colts. /S 7. page
2f13- "5 11- <0/ the; IZeyifed Code: ' f. ' 1
* E or the above oSf'nce," or en training any fiilof without cbn- 1
font of his captain^' t'Ve ordinary mpu? forfeits'two dolhrs'to the
captain lor every mEvnc'e.' Id. § 12. (Cop the firm of the yxsarf
rant, fee tide* SeamenIn Appendix Isfcd 2, of this ivork'.fi ;*
' The mafcerolEny veiTcl'pw ting on Luore any diftbled teaman
or lexy-int,: before his'contraft' for' tervice; is "expired, (Uut^put
providing for his. maintenance and cure, forfeus 60 dollars 'tb Ae
pvertcers. of the poor'cf tiv" county,' 1 edbyerable- by aiticn'cf d_bt ^
pr information)—and mbfecyef ihali Wlniblb'to tneir a&ion for?
402 SEAMEN.
all expe rices incurred in the maintenance and cure of fuch per-
ion,—and fhali be ruled to give fpecial bail,—o"> the overieers
making affidavit of the caufe of a&ion. /7. /. p. 215.
See title ' Slaves* § 50, 51, as to the pepalty on mailers of
veffels fo: carrying a fervant or (lave out of the ilate.
SB ARC H W ARRANTS.
THE importance of this fubjedf, as well from the frequent
applications made to magiftrutes to grant thofe warrant,
as from the great caution neceflary to be obferved in the ufe of
them, wtli jufrify my giving them a fepurate title. Under
-"which I fhall iliew,
I. ■ In tjhat manner they JJjall he granted.
IT. How they jhouLl be executed.
1(1. Proceedings after the return.
IV. Form of a search warrant.
I, In what manner they flvhi be granted.
The power of grant! ig f arch warr?.rtr, fecr*a now to be
univeifally ad mi-.ted, ah ha' fo great an authority as lord Ccks
ojice denied their legality. See 4 Infi. chut. 71 p. 176.
Lord Ha is in hi" pleas of the crown, [ys. 2. p. 150.^ after
controverting the opinion o! lord Cd.L\ as t» th- power of magi-
ilrates in grading th"E warrants, lays cL-wo the iohovying rules
refpedting the ufe of t'-.enn
1. '{ h y are not to be granted without cadi made before the
jyfiicc of a .■ lony rommbtcd, ami th at the parry complaining
bath prcbab'e caufe to Lip'-cl ust . are i - "v.a a hcufe or place,
and doth ihm, his r-afbnsof fach fjfpiciorr.. 2 H H. 150.
And there-tore, a general wan a t fw march m ail fufpucUd
places is not good, bat only to (earo.h in fuch particular places,
where the parry affigns before the j * ft ice his fiifpcion and the
probable caufe thereof, for thefe warrants are judical acts and
mult be granted upon the ex uriinntion nf the fa,ft. 2 H. H, 15b.
2. It is fit that fuch warrants to iVarch do r xprefjj, that fearch
be made in the day time, and tho' tney may r.o: be unlawful
without fuch refhiction, yet they are very inconvenient without
it, for many times under pretence of fearches nnde in the night,
robberies and burglaries have been committed, and at b<dt is;
creates great difturbancs. $ H. H. 15a..
b
SEARCH WARRANTS. 403
3. They osgh* to be directed to conftables, and other public
officers, whereof the law takes notice, and not to private per-
fons, tho' it is hi. the party compla ning fiuuld be picfcnt aoj
affiftant, becaufe he knows his goods. Id,
4 Ir ought to command that the goods f- und together ^ ' a
the party in whole cuftody they ans found, be brought bo e
forne juftice of the peace, to the end, that upon farther exami
ration of the facl the goods and party in whofe cuftody they vre
found, may be difpofed as to law fhall appertain. Id. See 2
Hawk, 135.
II. IIow they Jloonld be executed.
1. Whether the ftolen goods are in the fufpected hrvjfs or
not, the officer and his a/Tiftants in the-Jay time, may enter, the
doors being open, to make learch, and it is juftiliable by this
warrant. 2 H. H. 151.
2. If the door be fhuf, and upon demand it be refilled to be
opened by them within, if the ftoten goods be in the houfe, the
officer may break open the door. '2 H. H. 151.
3. If the goods be not in the hoirfe, yet it feems the officer is
excufed that breaks open the door tofearch, becaufe hefearched
by warrant, and could not know whether the goods were there
till fearch,made: but it fcems th*t the p'arfy that made the fug-
geftion is punifnable in fuch fcafe; for as to him the breaking-
the door is in the event lawful or unlawful, to wit^ lawful if the
goods are there, unlawful, if not there. Id.
III. Proceedings after the return.
t. With refpe£t to the goods brought before the rr.agiftrate*
if it appears they are not llolen, th; y are to be reftored to the
pcfieflbr j if it appears they were ftolen, they are not to be deli-
vered to the proprietor, but depciiteb in the hands of the lbcrirr
cr coriftabie, to the end the party robbed may proceed by intuit-
ir.g and convicting tire"oftenuor tolv.ve reiriruiion. 2 Li. H. 151.
2. With refpeet t» the parry that had the cuitudy of the g.«<d :
if they were not ftolen then he is to beiLkhmgtu : if ftoitn, but
not by him, but by another that fold or ck-iive:ed them to hi:n,
if it appear that he was ignorant that they were itokn, he may
be ciifchaiged as an oifentier, and hound over to give evidence
as a witneis agair.lt him that Ibid them » ii it appears that he was
knowing they were Ifo.'tn, it is fit to bind him over to aniwer
the felony, for there is r probable caule ot fulpicion, at icait that
he was acceifory ajter. 1 H. H. 1^2.
404 ' S.E-A.R.C H WARRANT 1
. • . ■ . •* ' -J ii » h
The f-iregpiug observations of lord Hale have -been fully re-
cognized oy very important determinations, made fince he wrote.
I.i fhe c »fe of John Ehtick, wh'o with his papers,'' were feized,
by "a warrant ifTued'by the'earl of Halifax as fecretary offtate'i
* ;> befog the author or ofte concerned in Writing the Monitor
. »r fp^fs the jurors found afpecial'verclift^ and lord Camden,
in .'Mm; b g t~e r> foiution of the court, obferved,4 That a war-
4 unrtb f Ae an'd.cVrry away prpers'in thdczfe ofafeditious libel
4 wn-t il.A Nx and void.—He 1aidr that warrants to fearch for ftolen
4 g* '6t)s r ah tr.pi into the'law by imperceptible' pra£lice, that it
4i.» .hie '»r.ly cafe of the kind to be met with, and that the law
4 proceeds in it with g-ett caution,—For lit, There muit be a
4 full charge upon oaih of a theft committed/ '
2.;. 4 The o.vner mull fwear .that the goods are lodged in
4 fuch a pk-ice/ , ' " "
3 j. 4 rje fnuft attend at the execution of the warrant to IheW
4 them to the officer, who rnii't lee that they anfwer the defcfiptionl
, 4 ,And lailly, the owner muft abide the event at his peril; for
4 if the goods are not found, he is a trefpafler, and the ofR'cerbe-
4 ing an innocent prrfon will be'always a ready and convenient
4 witnefs agamT hi m,'—I'l, State trials,' 32I.
Under this head we muftfoot omit' the cafe of, John Wilkes,
Efq, m which the doctrine of general warrants, was fully inve£
tigateJ.—Or. a fuppofition that Mr. Wilkes was author cf No.
45 ofa periodical paper, entitled the 4 North Briton/ lord Ha-
,/«)'** then focretary or ftatc,. iflued'a general warrant for the fei'-
zsfoe of Mr. Wilkes* papers. "This warrant was executed by a
comfobie and four of the'king's mefierigers, "attended by'Mf2.
Wood, private fecr'etary to lord Egremont. J
Mr. Wilkes brought air adiioh of t'rfcfpafs 3 gain ft 'Mr. Wood,
who, it wan proved on the trial, barely fuperintrmied theexecu-
tion of the warrant. And the queftion was, ■ whether thofe ge-
rjcral warrants; tho' fupphned by precedents ever lince the re*-
volution, vers legal-, and if' they ihould be- confidered illegal,
whether an a£l:oi)'would lie againii Air. Wood,—The chicl juf- '
tiee Pratt, before whom the fcaufo was tried, told-the jury that
'if they viewed Mr. Wood as party in the affhr, (hey muit find a
veroict ? gain ft him 5 provided ti icy Should conceive the .warrant
"illegalwhich he himfeif itrbrigly enforced.—J he jury* alter
retiring about half an-'hour, returned a ve>"di£l for pne tkouj'and
p rands damages.—Seethe cafe at large, with the whole cf the cvi*
deuce prcjlxed to Lojj'ts Reports, 1 , . 1 ' .
: ■ iv. -
SEARCH WARRANTS. 405
IV. Form of a Search Warrant.
county to wit.
Whereas I have received information upon oath from A J, that
the following property, to wit, (here defcri'oe the kind) has within
days la ft pa ft, been felonioufy taken ftolen and carrhd away,
out of the po[fej]ion of the faid A J, in the county a fore faid, and
that the faid A J, hath probable can ft to ffp,£l, and doth fujpect,
that the faid are concealed in (mention the place in which
the party fufpedts the property is concealed) of A Q, of the faid
cotinty labourer: Theft are therefore in the name of the common-
wealth, to authorize and require you, ivith necefjary and proper
ejfiftants, to ente>, in the day time, into the (place lufpe&ed) of
the faid A O, and there diligently to fearch for the faid and
if the faid or any part thereof, Jhall be found upon jvch
j'earch, that you bring the fame, and alfo the body of the Jhul A O,
before me, or jome other juftice of the peace for this county, to be
difpofed of and dealt with according to law. Given under my
hand andfeal &c.
To conftable. J P.
Self defence, (See HOMICIDE.)
Self murder, (See HOMICIDE.)
SERVANTS.
PERSONS contemplated by thea&of the General Afiernbly,
under the denomination of fervants, are neither Slaves,
Hirelings, who are citizen* of this commonwealth, or Convicts,
the importation of which la ft, indeed, is exprelsly prohibit by
lav/.
As all the afe concerning fervants, are now reduced into one,
it will be fufficient, under this title, barely to refer to the law,
and to give fuch an abftract of the feveral iedlions, as will ena-
bie the magiftracs to apolv the precedents to their proper places.
See Virginia laivs, page 2$S, of the Revifed Code.
§ I. All white perfoiis not being citizens of any of the con-
federated ft arcs of America, who ihull come into this common-
wealth, under contrail, to ferve another in any trade or occu-
pation, fhall be compilable to perform fuch contrail, fpeciflcally
during the term thereof, or busing fo much of the fame as lftail
not exceed leven years Infant under the age of fourteen years
brought in under the like conrradt, entered into with the content
of their fath.er or guardian, ihnll fei ve till their age of twenty-one
years only, or for fuch ihorter term as the laid contract Oiu.lI
have fixed. < 1> b b § 2. ■
40 6 S E Pv V A N T S.
§ 2. Frefcribes the mallei's duty, in furnilhing them in fulK-
dent food, doatbing occ.—and giving them a full fuit of cloathf
st the exoiration of their fervice.
§ 3, The contract may be aligned, byconfentof the fervant,
in prefence of a juflice of the peace, attefting the fame in writ-
ing—and fliall pafi> to executors, adminiflrators, and legatees.
§ 4. For diforderly behaviour &c. a fervant may be corrected
by llripc.s, by order of a jullice ; or refuting to work", may be
compelled thereto in like manner, and to lerve two days for one
loft. Expenses for bringing home a runaway fervant, fhall be
compenfated by further fervice, by order of court, after expira-
tion of hfs time, or fecurity to pay within fix months.
§ 5. A mailer failing in the duties prefcribed by this a£l, or
guilty of injurious demeanor to his fervant, is liable to have the
fervant difcharged by order of court.
§ 6. Contradls between mailer and fervant, during fcrvice,
are void.
§7. Complaints of fervants againft mailers, and of mailers
again!! fervants, may be redrelled in a fummary way, by the court
of the county, wherein the fervant &c. reldes.
§ 8. Servants may acquire property. If fick or difabled fnall
not be put away by their mafter, under penalty of 30 dollars,
recoverable by the overfeers of the poor, to whofe adtion the
majfter fhall be aifo liable.
§ 0. White fervants, on being purchafed by a negro, mulat-
to, or indian, fhall become fiee.
§ 10. Perfcns dealing with a fervant, without confent of his
owner, forfeits four times the value of the thing bought &c.
recoverable by a£lion on the cafe, and 20 dollars recoverable by
petition—and in default of payment to receive 39 lalhes.
§n. Where free perfons are punifhableby fine, fervants are
puni/habJe by whipping, at the rate 20 lalhes for every eight
dollars,—but {hall not receive mote than 40 lalhes at one time.
§ 12. Servants when free, fhall have their freedom recorded,
ana a certificate thereof from the clerk. If it is k>il, the clerk
may renew it, Pcifons entertaining a fervant without a certil-
cate fhall pay the owner a dollar a day, recoverable by action of
debt in any court. A feivant making ufe of a forged certificate,
(hall Hand in the pillory two hours on a court day, and make
reparation for lofs of time, and the perfon forging fhall forfeit
30 dollars, one moiety to the owner of thefervant, and the other
to the informer, recoverable in any court, and on failure of pay-
mem,' or fecurity to pay within fix months fhall receive 39 lalhes.
On a convidion of a fervant for hog-Healing, the mafter is
liable to pay eight dollars, to be recompenced by further fervice.
Virginia laws page 186. (/f)
s E- V A N V J-.;
■(A) AJpvnr.mnt of a servant's indentures, nnVr -j: „
(After the matter makes the affignment which may be in the
ufual form, the juttice may make the following atteftation)
county to wit.
I J P, a jn/lice of the peace for the county aforcfalf do hereby
certify that the above ajfignment was made in my prefence} and
the prefence of the within named A Sj who did freely confent to'
the Jame.
j p.
SHERIFFS;
THE word Sheriff is derived from the Saxons, in whofe
language it fignificd the reeve or officer of the fhire; fo
Called, becaule on the divifiop of England into counties or (hires,
the cuftody whereof was committed to the earl or cornesy the bu-
linefs devolved on the fheriff" as his deputy; whence he is called
in latin vice-comes. I Blacks Com. 339,
Many parts of the duty of fherift's having been already node-
ed under the feveral heads to which the fubjedf properly belongs,
1 final! confine this title to an abftradt of the a&t of Aflembly re-
lacing to the appointment'and duties of flierifts, and fuch points
of uftful information arifing under the common law, as it is ef-
fential for every ffieriff to know.
By Virginia laws, chap. 8q, page 127 of the RevifeJ Codey
§ 1. The courts of each county, annually, in the month of
fungy or fuly fhali nominate three peifons in the comrviiliion of
the peace, to the governor, one of which fhall be commilfioncJ
by the governor to ad; as fheriff in fuch county.
§ 2. Every juttice failing to nominate at the time above pre-
fciibei fo 1 ft-its 200 dollars.
§ 3. If a per fen is appointed fheriff and fails within 2 months
to enter-into fuffieient bonds, the clerk of the court, within one
month thereafter'lhali trardmit to th« governor a certificate of
fuch failure, under the penalty 300 dollars.
§ 4. The pel Ion firtt cornmiilioned failing to give bond in
two months, or lirtt nominated failing to apply for a commilfioit
in »ne month, the governor See. may iil'ue a com million ro fome
other perfon nominated; and if the peifon thereafter commifii-
oned or nominated /hall be guilty of a like negledi, the governor
may comrniffion fome other perfon nominated.
§ 5. If a ttieriff dies, the vacancy may be iuppiied by the go-
vernor Icq. out of fome -other in the nomination.
6,
4°S SHERIFF S.
§ 6. Every fheriff Commiffioned tirid qualified as above, fhall
continue in office for one year, and may with his own confent
and the approbation of the executive be continued for two years,
and no longer ;—unlefs from fome accident a fucceffor fhall have
been prevented from qualifying.
§ 7. When by the death of any fheriff, another (hall be ap-
pointed at any other time than in the months of June or July,
the governor &c. may continue fuch fucceffor in office, until
the court held in the month of June or July, next after his two
years continuance therein fhall expire.
§ 8. Every perfon accepting the comrniffion of fheriff fhall
enter into bond with good fecurity in tiie penalty of 30,0 >0 dol-
lars, payable to the governor, and his tucceiiois, for the true
and faitnful collecting, accounting for, and paying the taxes im-
prded by jaw in his county3 the band is to be taken, acknow-
Edged in cpen court, and recorded; an atfeited copy is to be
( trai.fmitted, by the clerk, to the auditor, which is to be admit-
ted as evidence in an)" fuit, motion otc. thereon.
§ 9. Upon the refufal to adt, or difubility -of any fheriff the
executive may appoint a collector, who fhall, as to the collediion
of tuxes, fully rvpiefent the fheriff- • ■
% 10. iLvery perfon accepting the comrniffion of fheriff, fhall
likevvi.'e enter into another bond with two good and fufficient
fecuiities at the leaft, in the fum of . .. with a condition in
the following form, to wit: '
'The condition of the above obligation is fuch, that vohereas the
above bound A B, is confiiiuted and appointedfie-, iff of the county
of by a comrniffion from the governor, under the fcal oj the
commonwealth, datei the ■ ■ . day of lafi pajl, if therefore the
fa id A E, full well and truly c&lLfl all levies, and account jor
and pay tte fame in fuch manner, as is by law dire fled, and alfo all
f.nts, forfeitures, and amercements, accruing or becoming due to
the commonwealth in the faid county, and fhall duly account for and
fay the fame to the tieafurer of this commonwealth for the time be-
ing, for the ufe of the commonwealth, in like manner as is or fall
be dire fled in cfe of public taxes, and fall in ad other things truly
and faithfully ex cute the faid office of fieriff, during his continu-
(Dice therein, then the ab.ve obligation to be void, otherwije to re-
main in full force and virtue.
And ihull alfo oncer into one other bond before fuch court,
with the iixe locuiiiies, in the fum of with a condition,
in the following fcrm, to wit.
'Che conuliion of the above obligation is fuch, that whereas the
above bound A B, is conjiituted and appointed fierijf of the county
cf by ccnm'jfin from the governor under thefeal of the com*
n/onwealth, (
SHERIFFS.
monwealth, dated the day of laji paf, if therefore
the [aid A B, Jhall well and truly collefi and receive all officers fees
and dues put into his hands to coll eft, and duly account for and pay
the fame to the officers to whom fuch fees are due refpeftively, at
fuch times as art prefcribed and limited by law, and jhall well and
tru y execute, and due return make of all procefs and precepts to
him directed, and pay and fatisfy all fums of' money and tobacco by
him received by virtue of any fuch procefs, to the perfon or perjons
to whom the fame are due, his or th'eir executors, admin ijirators
or affigns'y and in all other things /ball truly and faithfully execute
and perform the faid office of Jheriffi during the time of bis conti-
nuance therein, then the above obligation to be void, otherwife to
remain in full force and virtue.
§ II. Which bonds fhall be made payable to the governor
ar>. his fucceffors* and entered cf record in the county court.
•And in the name of the governor, or his fucceffors, any party
injured may profecute a fuit on the laft mentioned bond, and re-
cover damages; and which bond fhall not become void upon the
fit ft recovery, or judgment againft the plaintiff; but may be put
in fuit at any time by any party injured. Provided, that on a
verdict lor the defendant he fhall recover cefts,
§ 12. No perfon to act as deputy fheriff more than two years
in any period of four years, unlefs he fatiffies ithe court that he
has colle&ed and accounted for the taxes afligned to him by his
former principal.
§ 13. Every fheriff or colle&or receiving any taxes, fees
he. fhall deliver to the perfon paying kdiftindt account, pndalfo
a receipt for the fame;—under the penalty of 4 dollars, recover-
able before a magiftrate of his county;—-and fhall alfo be liable
to the party grieved for receiving more than was really due ; to
be recovered by adtion on the cafe, in which the plaintiff fhall
recover fui! cods.
§ 14. Every fheriff, or his deputy fhall execute all procefs
legally ifiued and dire&ed, within his county, and make due re-
turn, under penalty of 20 dollars each failure; one moiety to the
governor for the wfe of the commonwealth; the other to the par-
ty grieved; recoverable with cofts, by action of debt or inior-
mation in any county court; and fhall be, liable to the party in-
jured for damages at common law; and for every filte return
the fheriff fhall forfeit 60 dollars recoverable and to be divided
as above.
§ 15. No fheriff fliall return that the defendant is not found,
unlefs he hath been at his dwelling houfe or place of abode, and
not finding him, fhall have left there an attefted copy of the
writ; and where the defendant is a knovvh inhabitant of another
county*
4vo , S H E R I F F S.
county, the fheriff fhall return the truth of the cafe, but not that
the party is not, found, and the fuit, if iflued from, a county
court, fhdl abate. 1
§ 16. The peifoiis who may not be arretted, may be feen
under tide 4 Jrreft ' • ■
§ 17 Bonds taken by fheriffs other than t© himfelf, and dif.
c'bargable upon the prifoners appearanceat the day mentioned in
. the writ, except in fpecial cales'directed by iaw, fhall be void.
4 § 18. Sheriffs lliall not take any other or greater fees than
thofe directed by law; all. other fervices {hall be done ex officio,
§19, Sheriffs ihail collect all taxes," poor rates $ic. and ac-
count for them as directed by law. • ■ ' " -
§ 20. ,No fheriff be. {hall diftrain flaves for taxes &e. if other
fufficient diilreis c.an be had,, nor take unrWonable diftreffes,
under perns ky of being liable to the aftion of the party injured,
grounded upon this a&, in which the plaintiff fhall recover full colls.
1 § -j. 1. Sheriffs may imprefs guards for feeuring criminals in
jail, who (had be paid by the public 50 cents each man per day.
The delivery of prifoners by ' indenture, between the
cibiheriiF and the new, or the entering upon reccr^ in thecouniy
cclii, th* names of the feyeral prifoners and caufes of their ccim-
nmment, "delivered over to the new fheriff, ,{hall be fufficient to
uncharge the, iate fheriff from all fuits or, abtions for any efcape
thatl fhall' happen afterwards. t »
,§ 23. Sheriff's cornmiitton for colledting taxes &c. and all offi-
eerV fees, except cisrk's and, furveyors, fhall be five per centum.
,§ 24 hfo. fheriff fhall be obliged to g© out of his county to.
pay money levied by execution, or to give notice to creditors at
whofe' fuit any perfbn may be in cuftody of fuch fheriff.
§ 25. The high fheriff fhall have the fame remedy and
rr.ent again# his deputy and fecufities, for failing to pay money
received by execution, or for an 'efcape, as the" creditor. has.
again# the high fheriff. . f
§ 26. Deputy fheriff's are to endorfe on procefs, the day they
ferved it, and fubfcribl their name as well as their"principal's to
the return, under tire penalty of the fame forfeiture as for a falfe
returfi. ...
„ § 27. ,Thc high fherifF may recover judgment againft his dc-
pu'ty be. for failing to pay the taxes to be collected by him to
the high fheriff or the treafurer, and five per centum, interett,
and fixe per centum damages: Provided, that no execution fhad'
ilfiie again# the deputy be. for the five per centum damages,
till judgment is obtained again# the principal. ,
The fccurities of ihoriff's may recover judgment and
-have execution again# the lands of their principals, in the fame
manner 43,the commonwealth might.
SHERIFFS. 4n
<0f />rrefis or executing froccfs, fee title 1 Arrefi:.'
Of Baif fee title 1 Bail
Bail-bond to the flier iff.
Know all men by ikefi prefenis that we A D, of &c. and B S,
of yc. are held and firmly bound to j S, fi-eriff of the county wf
in the Jam of of lawful money of Virginia, to be paid to the
faid J S, or his certain atter ney^ his executors, adminijlrators or
ajjigns i for the true payment whereof .we bind our(chesy cur heirsy
executor sy and adminrfiraior sy frmly by ihfe pre/hits, fated with
our fealsy dated this day of in xhe year *
The condition of the above obligation is fech, that whereas
B P, hath lued out pf the court cf a writ of capias ad re-
Jpondendum, againft the body of the, above bound A I), in an
attion of which writ hath been duly executed; how if the
laid A D, do appear before on the [the day to which
the writ is returnable) then and there to anfwer to the fabi a el?-
en, then the above obligation to be void, elfe to remain «n lull
force.
Of EfccrpeSy fee title i Jail & Jailor.'
Of Executions.
I. Fieri Facias] This is an execution againft the goods and
chattels of a man, as, leafes for yearsy or moveable goods fro.
Goods pawned, fliall not be taken in execution for \he debt
of him who pawned them, during the time they are pawned.
Kitchin. 226.
Things fixed to the freehold cannot be taken in execution.
37. Eiiz. B. C. Day id Auflin.
The fale of goods bona fidey by the defendant, rending th* ac-
tion fhall be valid,; but if done fraudsdently, the^ are iinMe to
the plaintiff's execution. See Cro. Eiiz. 974. Coke's Reports.
Iwync's cafe.
. Property of goods is not bound till the delivery of the execution
to the officer. Virginia laws, p. 309.
If the defendant dies, after the execution is in the haw's of the
fncriff and before it is ferved, the execution may be levied on
the property in the hands of the executors. Cro. Eliz, id'.
If after feiz-ure of the goods, 1 he defendant regains the podef*
fion of them, the ftieriff may recover them in his own name, 111
an a&ion of trover. 2 Sand. 47.
If on a fieri facias againft A, 'the goods of B, ■are taken, an
adtion of trefpms will lie againft the iherirF. Keb. 693.
The
412 SHERIFFS.
The Iheriff cannot deliver the goods to the plaintiff in fatif-
fadlion of his debt.. Cro. Elko. 504..
In the cafe of Clerk v. Withers, (t Salk. 323) the following
points were refolved,
(i) A Fieti jacias does not abate by the plaintiff's death, and
the Iheriff may proceed in it; becaufe an execution is an entire
thing.—(2) That the Iheriff who begins an execution {hall end
it, notwithftanding his office expires; and a diftringas nuper
vicecomite/n lies, of which there are two forts; the one to dif-
train the old Iheriff to fell and bring in the money; the other to
fell and deliver the money to the new Iheriff.—(3) That by the
feizure of goods the property was diverted out of the defendant,
and in abeyance, and that the only remedy lay againft the Iheriff.
2. Capias adfatisfacienduin] This writ lies againft the body
of the defendant, and by the common law the body was to be
taken and detained in cuftody'till the debt was paid;—but by
the laws of Virginia, page 313. Jet7. 29, of the Revifed Codet
the defendant may tender to the officer fufficient perfonal pro-
perty in difcharge of the debt, which property Ihall be proceeded
upon in the fame manner as if it had been taken on a writ of
feri facias.
3. Elegits] An elegit is a judicial writ, firft given by the fta-
tute of W. 2. chap. 18. either upon a recovery for debt or da-
mage, or upon a recognizance in any court. By this writ the
Iheriff Ihall deliver to the plaintiff, all the chattels of the debtor
(except his oxen and betjls of the plough) and the half of his landsy
and this muff be done by inqueft taken by the Iheriff, for the
valuation of the goods and lands, ought to be firft found by the
inquifition of a jury. 4 Rep. 47.
4. Writs ofpoffejfon] Thefe writs are the ufual procefs of
execution alter a recovery in ejedlment; in which the Iheriff is
to deliver full polTeffion of the lands and tenements according to
the command of the wiit; the formalities to be cbferved in which,
accoidiug to lord Coke, are, to deliver polTeffion of lands by a
twig and clod given by the Iheriff to the plaintiff on the land;
where there are houfes^ by delivery of the key of the door; or
of rents, by corn or giafs growing on the land- 6 Rep. 52.
5. Refcuesj It feems to be generally agreed that no attion will
lie againft a Iheriff for a refcuc on mefne procefi, for the Iheriff
cannot always be prefumed to have the pofje comiiatus about him;
but on execution, it is laid, by great authorities, that the iheriff'
is liable for a relcue. bee Cre. Car. Myn Coughton's cafe.
Ibid. Sly C5° Hue he's cafe.
For the proceedings in executions generally, as regulated by the
laws of Virginia^ fs^c. 151, p. 306—318, of the Revijed Code.
An
SHE ' R' I 'P •£ S. • 4.13
1 t
An under-fheriff has implicitly powet to execute all ofdihary
offices of the high-CiefifF himfelf where the words of the
Writ are that the fheriffJhall go in his own per Jon, then the under'
fheriff cannot do it. Cro, Eliz. Ciafs cafe, Hob. 13.
• , 'v ' -
' ' S L A _ 'V; E S.; ' '*
THE introduction of flavery among us during our fubjePciort
to the government of Gre;at-Britain, has made it necef-, t
fary to ptifs many fevere laws for the regulation and reffraint of
that fpecieS* Whether we conhder them " as men or as property,
And tho' very early in the revolution, the further importation of.
flaves was prohibited* and by feveral fucceffive adfs of the ligif-
lature, the condition of thofe'among us greatly meliorated,. yet
it has been thought prudent to continue many of the reftraints
formerly impofed, as will appear by perufmg the following act
of Affembly, in whiih the feveral paws concerning flaves, free .
negroes and mulattoes,* are, reduced into one. •
Under this head, I fhall purfue the fame method obferved tin-
dcr title ® Servants,' for the reafons there expreffed.
By Virginia laws chap, lo 1* jett* I, page 195, of the Re*
piled Code, No perfons'fhall htnde-forth be flaves within this
commonwealth,'except fuch as were fo on the iyth day of "0c-
tober, in the year 17S5,, and the defeendants of the females of
thdm. . , \ ' ■ V, '' , " . ,
Sett.'2. Slaves hereaftei; brought into this ffate, and continue .
ing therein a year, or fo long at different times as will amount
to a year fhall Be free.' ' 4 . . •
See?. 3. Perfons hereafter importing flaves contrary to thisadfc
forfeits 200 dollars each; 'perfons buying or felling fuch 10O
dollars each; recoverable by action of debt or information in any
court of record* one half to the* informer'* the other to the com-
monweajlh, ' ^ ' , ,
Sett. 4. This prohibition not to'extend, to any perfon remove
ing from any of die United States, 'into this ffate,.'in order to
become aciusen thereof, if within 60jdays after his removal, he,
fhall take the foliovying oath'before-fooie giiiice of'the peace of
this commonwealth. ' *•' • , ' f - ■-
I A B, 'do jn;ear.f that my removal Into the jloit 'of Virginia,'
Was with no intent of evading the laws j'or prevvnimg 'the j u> sjscy ^
' in.portat'on cf flaves, nor have I broiikht with me any j'taves, v.at?
en intention <?/felling then:., nor have any oj taejhrves wvtsh i nyvs
troughs with we, been imported J rone Afncaj tr ray cj vv cit «,
' ■ • 1VI01II
C c c
414 SLAVE S.
India Jftatvls, Jince the fir ft day cfi November^ one ihoufiand fie-
ven hunurtd andJlventy eight.
So help me God.
Not to extend to perfons claiming flaves by defcent, marriage
or devlfe ; nor to any citizens of tnis commonwealth, being now
the aR-ial owners of flaves within any of the United Stales, arid
removing fuch hither; nor to travellers and others makirg a
tr;.niio.il fray, and bringing flaves for neceflary attendance, and
carrying them out again.
Set? 5. No negro or mulatto fhall be a witnefs, except in
pleas of the commonwealth againft negroes or mulattoes, or in
civil pleas, where neg-oes or mulattoes alone fhall be parties.
Sefl. 6. No flave to go from the tenements of his owner
wicnout a paff, or letter or token, by which it may appear that
he is p-cceeding on his mailer's bufinefs,—under pain of being
ca riej before a juftice, and by his order receiving corre&ion or
not, at the difcretion of fuch juftice.
Sedt. 7. A flave found on the plantation of another without
lawful bufinefs, may receive ten lafhes frpm the owner or over-
fee r of fuch plantation.
Seel. 8. Gun, powder, foot, or other weapon found in pof-
feftion of a negro or muiatro, may be feized by any perfon, and
on proof before a juftice fhall be forfeited to the feizor; (d)
and the offender may receive by order of the juftice any nurr.ocr
of lafhes not exceeding 39.
Sect. 9. Not to extend to free negroes or mulattoes, beirg
feoufe kecpeis, who may keep one gun, powder &c. —Nor to
other negroes inhabit.ms of frontier plantations, who may by
licence (B) from a juftice keep a gun &C.
Sf&. 10. Every perfon other than a negro, of whofe grand-
ft forts or grand mothers, any one is, or fhall' have been a negro,
altho' all his ether progenitors, except that defoemced from the
ivgfo, fhall have been white perfon?, fhall be deemed a mulatto;
and le every fuch perfoo who fhall' have one fourth part or mard
cf "tgro blood, lhuli in like manner be deemed a mulatto.
Set:, ii. Riots, routs, unlawful aflemblies, trefoahes ar.i-
fen nous fpcechts by a flave or flaves, fhall be punilhed wit.i
flripcs, at the difcretion of a juftice, and any pcifon may appre-
hend them, and carry them fofore a juiiice.
Sett. 12. Pcifon pirrnittir.g flaves to remain on hi? p'anta ion
4 hours at a time, without leave from their mailer or ovcrfo.r,.
1-"fobs 9 dollars; pcrmitrirtg more than 5 negroes fo tQ remain
ft rfoits one dollar for each negro over that number j the above
forfeitures to the u.'e of the informer, recoverable before any
juftice &c. (C) (U)
Sect.
SLAVES. 415
SeSI. 13. Not to extend to negroes belonging to the fame
perfon feated 011 different plantations, meeting at one of the
plantations, with their owners leave—nor their meeting at any
public mill, not being in the night, nor on Sunday, with leave
of their owner.—nor any other lawful o'ccafion, by leave of their
owner.—nor attending divine fervice on a Sunday, or other day
of public worfnip.
Scdl, 14. White perfon, free negro, mulatto, or Indian,
found in company with Haves at any unlawful meeting, or hat-
bouring, or cntentaining fugh; without the confent of the'ow-
ner, forfeits three dollars, recoverable with colts before a 'juf-
tice, ( E) to the ufe of the informer.
15. Every jufijee upon his own knowledge, o*- in for-
matron within ten days after fuch unlawful meeting, fhali iilue
his warrant (E) to aprehend the offenders See,—Juflice fifing
forfeits B dollars j fherifF, or other officer, failing upon know-
ledge or information of <'urh meeting, to endeavour t*o fuppVcfs
it, and to bring the offenders before fome j.silice, Torfei':* like-
wife 8 dollars, both perr-d-ies recoverable by action of debt in hny
couuty, or corporation courtevery under- {heriff, 1U-
jeant or conflable, who upon knowledge, or information t'f fuch
meeting, fhali fail to perform his duty in fupprefling tlie fame,
and apprehending the perfons fo affeotbled, forfeits 4 do'Lr* m
the inlormer, recoverable with qofls before any juftiee &c. (I)
oe -7. 16. Perfons dealing - with a Have for any commodity
whaffoever, without leave of hisywvner, forfeits four times the
value of the article, recoverable by addon on the cafe in any
court; alio the further fum of 20 dollars, recoverable by ium-
mom and petition &c.—*-er receive 39 lafkeig—but fhali never-
thelefs pay the coffs of fuch petition. * ,
Stil. 17. Negro or inula'to lifting his hand in oppofiticn to a
per for other than a negro or muiat.o, fhali for every fuch of-
fence jf .<vcd by the oatn of the party before a juhdee, receive
puniihtnent not exceeding 30 bribes—except where fuch negro
or mulatto was wantonly ahaultcd and lifted his hand in his own
defence.
Sei7. 18 Cafcration of a Have may not be diirecled,' except
for an attempt to ruvifh a white woman.
Set:. 19. Owner not barred of hie aft ion where his Have is
killed by any other perfon, or dies thro* the negii ,ence <d a fur-
geon undertaking tr.e cifmembering and cure of a ilavc fo uif-
member ed by order of court.
Setl. 20. Any two joffices may by warrant (G) direbb the
fherifF of the count? to take fufficient for e and go in fearch of
two or more out-lying Haves, and to apprehend them and carry
them to jail.
4*6 SLAVE S.
Sell. 21. If any r.egro or othpr /lave /hall confiilt, advife, or
Conipire to rebel, or make irfurre&ion, or /hall plot or conipire
the murder of any peifon, the fame /hall be felony without bo.
nelit of clergy.
Si-ft. 22. If a:iy negro or other/lave /hall prepare, exhibit,
or admmifccr any medicine, the offender fhall fuller death with-
out benefit of clergy.
Sell. 23. But it it appear to the court, that fuch medicine
was not exhibited with an ill intent, or attended with ill confc-
qurnecs, he fhall be acquitted.
Sell. 24. Nor /hall the prohibition extend to a negroe's ad-
rnini/lerirg-nic%|icine in the family of the owner, or of any
other, with 'the mutual confent pf the owner and theperllm ern-
ploying him.
Stft. 25. Owner of a /lave licenfing him to go at large and
frrtc'p as a free man, forfeits 30 dohars, recoverable by tpe over-
fee is of the poor by action of debt in any court; and the fiur.e
for everv offence.
Self. 26. Slaves {offered to go at large and hire themfe'ves
out, may be apprehended by any per ion and carried be/ore a juf-
tice; and if it appears to him that the flu ye comes vvithip'the
meaning of this acf, he fhall order him to the jail of the county,
[H) there to remain till the next court; whe, if it appear to
them that the /lave comes within the perview of this act, /hall
order the fherifi'to fell him, at the next court, giving ?.o days
potfee thereof at the court-houfc door.
Sift. 27. Twenty-fve per cent on fuch fale fnall be applied
by the court for kiiening the county 3evy;-^-the balance to he
paid by the Iheri/F, to the owner, deducting five per cent for his
trouble, and the jailor's fees,
hfti. 20. Perfous flea ling or felling any free perfon for a /lave,
knowing the perfon fo fold to be fret, iriaii fuller death witnout
be'viK of clergy.
Seft. 29. Stealing any negro or mulatto out of the po/Teffion
of the owner or overieer of fuch fxave,—felony without benefit
vi ckrgv,.
Stft. gc. The jufiices of every county and corporation, /hail
be julticcs of oyer *unl terminer, for the trial of /laves, which
trir l- lhail be by hveat lead, without juries upon legal evidence,
at /uch times as the {hcriffs, or other office! s fhall appoint, being
not lefs than five, nor more than ten days after commitment to
prif'.m, Ng Jave /ball be condemned, unlefs all the ju/lices fet-
ting ihJl agree in opinion that the priloner is guilty, after al-
'■owing him com fie I in bis defence, whofe fee amounting to five dot-
•Vi, fpcdi be p#M by the owner\—When judgrnentof death /hall
SLAVES. 417
be ps.fU, there fiall be 30 days at lead between Terence and
e;« cut ion, < ve .pt in eurca of confpiracy, infurrechonor rebellion,
S:c?. 3», Hit value of a flave condemned, who fh.dl iufrer
acco-dingly, or die befoie execution, to be ascertained by the
jmlires trios Duel be pmd by the public to the owner.—One
deodu u in lively, wno has commenced an adlion to recover
his f.cvioro, fnc'l be profecuted as a free man.
Sec?. 32. b-o oerfou having intercii in a flave fhidk/lt upon
the trial oh fuch ft we.
Sedt. 33. On ihe trial of a flave the com! may take for evidence
the cvifaiion of the offender, the oath cf one or more credible
wknfcfle.s, orfuch tcflimony of negroes or muhittoe.1 bond or fr.e,
with pregnant circumflanccs, as to them ihall Item convinc-
i.ig.
Stfl. 34. In cafes within the benefit of clergy, negroes or mu-
la.'toos tii dl not h.-.vo judgment of d. aih,—but fh.til be burnt in
the hand, yilh Juch other corporal 'puniJkHWiU as the court lhali
th'nl fit ;o inflllt;—excep1" the pmt/had once had the benefit
of this ait, and then he ihail fufFer death '
Sell. 35. Negroes or mulattoes being convifled by due proof
of giving fl/fe tellimoriy, fhall, without furch:r ttial, Reordered
by the court to have one-ear nailed to the pillory, and there to
Hand fer one hour, and the ear to be cut off? and the other tar
in like raannei ; and fnall receive 39 jalhts, or Rich other pu-
nilhinent as the court flhall think fit, not ex'vnding to life or
limb, and at every trial cf flaves f,.r capital offences, the perlon
iirll named 1$ the comrnitlion then fitting, Hull before the exa-
inin.- tion cf any negro or mulatto, not being a chrifiian, charge
fuel) evidence to declare the truth; which chaige fhall be in the
v.c.ds fo'lowir.g, to wit;
Ton are brought hither as a witrefs, and by the direction of the
laiv I urn to tell yon^ tagore you give your evidence^ that yoit muji
teli the truth, the whole tuitly and nothing bat ihe truth; and
that if it be found hereafter that y at tell a tie, and give falje tej-
tirnwy in this matter, sou muf for jo doing have both your ears
tiuiied to the pidory ir'tb cut. off. and receive thirty-nine la foes on,
your bare back, weil laid c/j, at the common whipping pojh
S<£1. 36. Any p:rfon by laft will and tetlament, or by inftru-
ment in writing under hind and feal, a<tolled and proved in
coust, by two wit. cfles, or acknowledged by the party, may
emancipate and fet free his Haves, who ilndl thereby enjoy per-
fecf freedom.
Seel. 27- But they may b<s taken in cxecunon to fatirfy any
jdpbt due by die perfon emancipating before Inch emancipation.
£cdf.
•pS SLAVES.
Sett. 38. AH {laves fo fet free, and in (he judgment of the
court uot round in mind and body, being above the age of 43
years, or males under 21, or females under 18, {hall be fun-
ported by the perdon fo liberating, or out of his eftate* and up-
on neglect or rdufd, the court of the county or corporation
where the uegk-dt {hall be, thai J, upon application, order the
fkenif to dill rain and fell fo much of the perfoa's eiiate, as ilrali
be iurbcient for that purpofe.
Sett. 39. Prvfons in their life time, or executors of t'nc.fe de-
ceated, by whom any flay® {hall be emancipated, lli-ll deliver to
fuch have a copy of the inftrurnent of emancipation, attehed by
the ckrk of the court*, cf the county or corporation, who in all
be paid by the perfon emancipating 83 cents. Every per fan ne-
gledtmg to y ive fuch copy, forfeits 30 dollars, recoverable with
cofls in any owS of reco.'d, one half to the perfon fuing, and
the other to the pen fern liberated.
Sett. 40, Any juftice ma)- commit to the jail of his county
(!) any emancipated have travelling out cf bis county without
inch copy, there to remain till f,;ch copy is produced, and the
jailors fees paid.
Sett. 4r. Saves ft liberated and negledling to pay their taxes
and levies, may be by order of the coust, hired out by the ilie-
riil lib inch taxes 3se paid.
Sett. 42. Savir g to all perfbns Sec. other than thofe emanci-
pacing, ail right See. to fuch {laves.
Sett. 43. All negroes and mulattoes in all courts of j-idica-
ture vvkbin this commonwealth, ihall be held, taken and ad-
judged to be perfbnal efface.
Sett. 44. A widow poffeiTed of flaves, as of the dower of her
IiUiba'>d, and removing or volautarky permuting them to be •
Carried out cf this commonwealth, without trm content of lb;rj
or her in reverftou, fcrEhs to the r<-verijonor ail Inch llaves, aj.d
all other dower of her hufband's efUte.
Sett* 45. 'The Eme Uw ef the hibband of a widow, in like
cilies, who forfeits to the pmfon in reverkon Curing the Luf-
lund's life.
Sett. 46. A fiave or {lives de Trending from an inte flare,
where an equal tiivifion cannot be mad- in kind, may by direc-
(ion of the high court of chancery, or of the county or eoipu-
nitron where adrninidration v/as [granted, be fold and o.ihiburion
of the money he inaje.—Provided that each ciaimant Utah be
fuinmoned to fhew cuufe agbnil fuch file.
Satt, 47. No gift of any {lave ilial! be good, unlefs the fame
be made by will duly pro/e-J and recorded, or by deed in writ-
ing, to be proved by two witueffes at bait, in the diifridi court,
or
S L A V IS S,
or court of the county or corporation where Vme of the parties
lives, within eight months after the date of such deed, . *
Sea. 4.3. This act {hall be confhued.to extend only to fuch
gifts where the donors have, notwinhflandingiheh gifts, remained
in the pouefiioh, and not to gifts of fuch Haves a:» have at any.
time come into the aftual poffeifion of, and have remained with
the donee, or fome perfon claiming under fuch donee.
Scfi* 49. This aid is not to alter any adjudication heretofore
made, nor t» afkft the interefc of any bona fide purchafer, for a
valuable coniideration, or creditor of the donor, before the do-
hee hath been at leaii three years in ^pdldhon cf the Have or
fiaves, under luch gift, nor in any manner to retrain the ope-
raucn of the of limitation. ,
Se£i. 50. The mafler of a veflel carrying cat of this flate a-
fervant or Have without the confent of the'owner, forkfts 150
dollars for every fervant, and 300 dollars for every {live; one
moiety to the commonwealth, and the other to the owner, re-
cover able by afition of debt or information in any court; and
moreover (hall be liable to the fait of the party grieved, at ccrrt-'
non law, for damages. I
• Setl. 51. In any aftion againft fuch mailer, under this aft,,
he may be ruled £0 fpecial bad, and fhall "riot be allowed to plead
in bar; or give in evidence any aft of limitation.
By Virginia lazes, chap. 164, psge 328 of the Rcvifed Cede,
| I. No free negro or mulatto {ball migrate into this common-
Wealth, and fuch as do come, contrary to this aft, rnav be ap~
prchended by any citizen and carried before a jufti<;e of the county
where he is taken; which juflice.is authorized to examine fend
and remove every fuch out of this commonwealth, into that {rate
or iftand, from whence he came; and for this purpefe the f her iff
or oilier cmcer, and other perfons, may be employed by die juf-
Cice in the fame manner as for the removal of crimm-ds from one
county to another, {M) And every free negro or irudatco'Itn-
ported into this ftate by water, - {hall be exported. to the place
from whence he came, -at the charge of the1 ihipr>?tertecove-
rahle- on motion in lire name of the corn men weai'th, on ten days
notice in any court. '• : • ■ ' '
§ 2. The penalty for bringing afcy free negro rir my 1 atto inttr
this common wealth is J.OO pounds each; otic half to cd'/ co.ni->
monwealth, and the ryher to the informer-, recoverable m •any
court, and-the defendant ihall be ruled to give {pecsal bat'.
§ 3. Not to extend to mailers oi vdtcb bnugutg a free negro
or mulatto into this fftte, employed on board a vftiel, who iiis'l
depart therewith, nor to any perfon travelUng into this
with any fuch free negro or mulatto as a fervant,
. bfth
420
S T. A V E S.
§ 4. If any fl tv-* find t . n» ,:ht or com'.* info id is (late from
Jffrict*. cr the L> ft hi <)\i !fl H-, <1. ^d/'y or indi/efPy, it /hail
be the duty rf a jufii -1 to caui'e pica Have to be jpprd-ended (A)
immediate]}', and tr^ofpc rti d our of this com rGnwej' i', and the
expence after.ding the fame, {hall be paid by the pe^f? 1 import-
iug fuch flave, ncoverah'e in me name of the juhict, directing
fuch flave to be iranfported, by warrant (O) before a Angle"
magistrate.
(A) Certificate of the seizure of a gun &c* on § 8.
county to wit.
Whereas A J, of the county aforefaid labourer, hafh this day
brought befcrt me J P, a juftice of the peace for the faid county,
one gut?, with powder and {hot by him found and feized ;n the
hands and pofleflion of a certain free mulatto man, known by the
name of (or negro man flave belonging to as the
tufe may be) who is not by law qualified to keep the fame; and
the faid A J, having alfo before me, made due proof of fuch fei-
Zure as aforefaid : By virtue of an a£ of the General Aflembly,
in that cafe made end provided, I do hereby order and d.'rebt,
that the faid A J, fhail and may retain the faid gun, ponder
and {hot to his own ufe; and that the faid mulatto man {hall re-
ceive thirty lafhes upon bis bare back, well laid on, .which laft
fentence A C, a conftable in this county is ordered to execute
Given under my hand and feai See.
(BJ Licence to keep arms on seB. 9.
county to wit.
. n P, one of the commonwealth*s juflices of the peace fcr the
faid county, do according to an adt of the General jzjjembly in ihat
cafe made and provided, upon application made to .me by A M, of
county, licence and allow guns, powder, Jit A, and other
weapons, open five and defenftvc, to be kepi and ujed by any Jlave
or paves, living at a frontier plantation iviihin this countj, and
belonging to the faid A M. Given under my hand &c.
fC) Warrant for permitting a flave to remain
more than four hours on ctfencler's plantation,
without leave of the owner or overfeer of
fuch flave, on lection 12.
county to wit.
Whereas
SLAVES.
Whereas information hath this day been given to me J P, a juf-
tice of the peace for the county aforefaid, by A J, that A M, a
majler of a family in this countyy did on the day of Lijl
pally knowingly permity one negro man Jhve the property of P ff,
to remain on the plantation of him ) he faid A M, jor ?ro*~e than
four hours at one timey without the leave of the [aid L> t, cr fas
overfeery contrary to the a£l of the General Afem.b'v in fuch cafe
made and provided: Thefe are therefore in tht name o/ ire com-
msnwealth to require youy to famnion the faid A M, to appear be-
fore rney at in this countyy on the day of nexty io cm-
fiver the premifes. Given under my hand Efc.
To conftable.
Judgment.
The within warrant being returned executed, and it appearing
to me from fufficient teffimorry, iba^ the iaid A M, is gwilty of
the offence within charged againff him, it is cordidLred that the
faid A J, recover againff hiu. the fum of three doiU.rs, befices
his cofts. Given under my hand &c.
Cofts Cents.
(D) Warrant, for permitting more than five
flaves to continue cn a plantation, as
above, alfo on fedtion 12.
county to wit.
Whereas &c. (as in (C) to the words 1 laft paftf knowingly
permitted more than fve negroeSy not being his owny (viz.) fa
negroes to remain at the plantation of him the faid A M, for moren
than four hours at one timey iviihout the leave of ike owner or
overfeer of the faid negroes, contrary &c. conclude as inform (G)
Tie form of the judgment may te the fame as in form (C)
except varying the fum, and adapting it to the number cf ne~.
groes, at one dollar for each above hve.
(EJ Warrant for being at an unlawful meeting
of flaves, or harbouring them, on'fedt. 14.
county to wit.
Whereas information hath this day been made to me by A J,
that within ten days lajl fajl, A O, B O, and C O, fdffcribe
them whether white, free-negroes, mukttocs or Indians) of the
D d d county
422 SLAVES.
county aforejaid, were found in company with jlan.es, at an unlaw-
Jul meeting of the flid fiave s, held at in the county afore/aid,
on the day of la/1 pa ft, (or did harbour or entertain a
fiave belonging to without the confe»t of the faid as the
cafe may be) contrary to the aft of the General Jftembly in that
cafe made and provided: Ihefe are therefore, in the name of the
commonwealth to require you to apprehend the faid A O, B O, and
C O, and to bring them before me or J'ome other jujlice of the peace
for this county, to be dealt with according to law. Given under
my hand &c.
To Conuable.
The fine is three dollars for each offence, and the form of
the judgment may be the lame as in precedent (C)
(Fj Warrant again ft an under fherifr, ferjeant,
or conftable, failing to do his duty in fup-
prefting unlawful meetings, and appre-
hending the offenders, onfedt. 15.
county to wit*
Whereas it appears to me J P, a jujlice of the peace for the
county aforejaid, from the teftimony of A J, that on the day of
lajl pa ft, AC, a conftable of this county, had information of
an unlawful ajfembly of ftaves then met at in the county afore-
faid, at which unlawful meeting were prefent AO, BO, and
C O, (defcribe them as above) contrary to the aft of the General
Jlfjembly in juch cafe made and provided', and that the faid A C,
did then and there fail to do the duty required of him by Law, in
fuppr effing the faid unlawful meeting, and apprehending the perfons
jo afjembled'. Thefe are therefore to require you-to fummon the faid
A Cy to appear &c. Given &c*
To Ccnftable.
(GJ Warrant to fearch for out-lying flaves,
on fedtion 20.
county to wit.
J P, and J P, two of the commonwealth? s juftices of the peace
for the aforejaid county, to the Jheriff of the faid county, and to
the keeper of the jail of the fa id county, greeting:
Whereas we have received information from A J, that two or
more faves, viz. A, a fiave belonging to and B, a fiave be-
longing to 'and others unknown, have run away from their
faid
SLAVES."
(aid matters, and are lying bid and lurking in this county, hilling
hogs, and committing other injuries to the inhabitants of this com-
monwealth'. Thefe are therefore to command and require you the
Jherijf of the faid county, to take fuch power with you, as you fall
think fit and necejjary, for the effectual apprehending fuch out lying
fiave or fiaves, and to go in fearch of the faid fiaves, and upon
their being apprehended to commit them tct the jail of this county for
further trial\ and you the keeper of the faid jail, are hereby re-
quired to receive the body of the faid fiave or fiaves, and the fame
fafely to keep within your jail, till he, or they Jhall be thence df-
1 charged by due courje of law. Given under our hands and feals &c.
(H) Order of a juftice for committing a flave to
jail, who is buffered to go at large and hire
himfelf out, on fe<5iion 26.
county to wit.
IVbereas A, a fiave belonging tp of the county of
hath been apprehended in this county, and this day brought before
me J P, a jujlice of the peace for the faid county, by A J, for hav-
ing been permitted by the faid to go at large, .and hire himfelf
out, contrary to the act of the General /ifjembly in fuch gdfe made
and provided j and it appearing t.o me that the faid A, comes within
the perview of the faid act: ' Theje are therefore to require you to
receive the body of the faid A, and him fafely to keep in the jail of
the faid county, until the next court' to be held for the faid county,
or until he Jhall thence he dij'charged by due courfi of law. Given
under my hand &c.
To the keeper of the jail of county.
(I) Warrant to commit an emancipated Have to,
jail, found out of the county in which he
refides, without a certificate of his
emancipation, on fe£t. 40.
connty to wit.
To the keeper of the jail of the faid county.
1 fend you herewith the body of ' an emancipated fiave ^ and
a refident of the county of who hath been found travelling in
this county without a certificate of his emancipation, under the act
of the General Jjjembly, in fuch cafe made and ptovided: Jnd
you are hereby commanded to receive the body of the faid and
him fafely to keep untilfuch certificate "of emancipation fnall be pro-
- dncccl,
4-4 SLAVES.
auced', and your legal fees as jailor paid, or until he Jhall otherwife
he dijc barged by due coufe of law. Given under my hand and
feai-<3c.
' * Formerly tlie magiffrate who committed a Have for felony,
was dire&ed to iflup his warrant to the fheriff, requiring him to
fiimmon a court to meet at a certain day, "not lefs than-Ave nor
more than ten days from the time of the commitment. As tlje
law now frauds, the magi/Irate is not directed to iilue any war-
rant for convening a court, but the flieriff is to do it within the
time be fere limited. How is the fheriff to know that a court is
necefhrv without iome information from a magiftrate ? Is he
bound ex officio to take notice that a have is committed to jail
for further trial? when perhaps fuch flave is conveyed to prilon
by a conihbie, and put into the cuftody of the jailor? It feems
therefore necefiary, tho' net exprefly dire tied by law, that the
magi Ante fnould on the commitment of a Have for further tri-
al give information thereof to the 'fhtriff. On this fuppofkion
I have added the following,
(JJ Warrant to convene 2 court Tor- the
trial of a Have.
country to wit.
To the flberiff of the faid county.
H'here us A, a negro man j'lave belonging io % of this county
hath been this day committed by me to the jail of the [aid county,
for (defcribc the offence) in order to undergo a further trial for
ike faid offence'. Theje are thei efore io require you to fumrnon a
tcuri confiding offive junices of the peace of this county at the leaf,
11, ne rf whom have an inter*!} in th<' [aid pave, t-o meet at the
court hoife of this county, on join? cl«y to be appointed by you, nof
Itjs than fvs, nor v.ore than ten daps f rom the date hereof to hold
a coutt tor the i^h.l of the faid fave according to law, at which
time and place you are-io attend, Given under my hand andjeal & c.
The add of iyBli, c 23, having repealed the former law ex-
empting a peribn from prefect:don of any kind fm the death of a
fltve during his correctionj and from any purddiment for man-
flaughter committed on the perfon of a flave j—-The material
diflindtions which formerly exiffed between thern and the whites,
in capital cafe^ are in a great meafure done a way. Nor will
any difference be four d in the mode of proceeding and punifh-
meat for firnilar offences, except what has already been remark-
ed in the foregoing' law, and what wiil appear in the following
SLAVES. 425
The TVarrant for apprehending a flave charged with felony,
is the fame as that for a white perfon for a like offence; th£
fame may be faid of the Mittimus, hut the Ifidi£tment being
made before a court, inftead of a jury, niuft neceflarily vary in
fume of its formal parts.
(K) Indictment againfl a Have for felony.
county to wit.
Be it remembered that on this das of in the year
and in tie year of our foundation, A A, attorney for the com"
mnnwead.h in the county aforefaid, who pnfeutes for the faid com-
nmwealth, in this behalf conies into court here, in his proper per-
fen, and for the fa id commonwealth, gives the court here, via.
(J P, &c. here name the juffcices fitting) to under ft and and be in-
firmed, that B, a negro man flave the property of on the
day of in the year and in the year of our
foundation at the county of , a fore faid, did feloniously
t-fc. (here defcribe the oflence particularly, as in indiftmems
for fimilar offences againfl: white perfons; the forms of which
adapted to each particular crime, may be found interlperfed un-
der their proper titles throughout this book:) Conclude as in
ether indictments, 4 againft the peace and dignity of the com-
mon wealth,' and then add, Wherefore the faid attorney for the
commonwealth pravs that judgment of the law may be palled on
the faid B, for the faid. offence:
(LJ Indictment for the murder of a negro man,
by beating him to death with a flick,
to wit.
The jurors for the diflridl comprfed of the counties of upon
their oath do prefer:t, that A O, late of the county of la!surer,
rot haviog ike fear of God he!ore, his eyes, but being moved and
fduced by the ir.fiiration ef the dt-vil, on the day of in the
year and in the year of our foundation, with force and
arms, at the count > of aforefaid, and within the juriflic-
t'v.n of the diflridi court aforefaid, in and upon a certain negro man
flave, named B, the property of (or if the negro is nor known
fay4 flave,' to the jurors aforefaid unknown J then and there be-
ing in the peace of God and of the faid commonwealth, feloniously,
wilfully, and of his malice aforethought, did make an a fault \ caul
that the faid t* O, zvith a certain large flick of no vatuc, wltrh
he the faid A O, in his right hand then and there had and held,
him the faid negro man slave, (if known, defcribe him as above,
4:6 SLAVES.
if not, fay to the jurors aforefaid unknown) in and upon the head
and in and upon the left fide of the breafo of him the j,aid negro
man slave, then and there, at the county of . aforefaidand
within the jurifdiftion aforefaid, feloniously, wilfully, and of his
malice aforethought, divers times did flrike and beat, giving unto him
the (aid negro man (defcribe him as above) then and there at the
county of aforefaid, within the jurifdiSiion aforefaid, by jlrik-
ing and beating ivith the flick aforefaid, in and upon the head of
him the J,aid negro man fdefcribe him as above) one mortal wound
of the breadth of inches, and of the depth of inches;
and then and there alfo, at the county of aforefaid, and within
thejurifdiftionafoicfaid, giving with the faid flick, to him the
faid negro man slave (defcribe him 2S above) in and upon the left
iide or the bread of him the laid negro man slave fdefcribe him as
above) one other mortal wound of the breadth of inches, and
of tie debik of inches; of which faid mortal wounds he the
faid negro man slave (defcribe him as above) then and there at
the comity of aforejaid, and within the jur ifillft ion aforefaid,
in/iantly died: and fa the jurors aforefaid upon their ccdh aforefaid,
do fay, That the faid A O, him the faid negro man shove (defcribe
him as above) at the county aforejaid, and within the jurifiiftion
afovjaid, in manner and form afo-'ejaid, feloniously, wilfully, and
of his malice aforethought, did kill and murder, againfl the peace
and dignity cf the commonwealth.
The great variety of modes in which the a& of murder may
be committed, £nd the very particular oefcriprion of the offence
which is neceffary in the indidhnent, has induced me to infert
under title 4 Homicideprecedents for almoft every cafe that can
pcffibly occur. It would therefore be an ufelefs repetition to give
any more of them here, See title 4 Homicide.'
(M) IVarrant for the removal of a free negro or
mulatto, cut of this fate, on seel * i. of
chap. 164, 0} the Revifed Code.
county to wit, To fheriff.
Whereas, upon the examination of A F, a free negro, ss
well as from the information upon oath of B W, £cc. it appears
to me J P, a juftice of the peace fur &c. that the laid A F, did
laft refide in the IIate of and that he hath migrated into this'
commonwealth, co ntrary to the a£l of the General Affembly, in
that cafe made and provided: Thefe are therefore to require
you to convey the faid A F, into the faid date of and there to
leave him j ar.d in the execution of this warrant, you are authc-
rized
rizcd to take fuch horfes, and affiftants as may be neceftary for
the purpofe afortfaid, proceeding therein as is dire&ed by law,
for the removal of a criminal from one county to another. Giv-
en under my hand and feal &c.
See title 4 Criminals.'
(NJ Warrant to transport a fave out of the Jlate.
See at the end of appendix, No. 2. of this work.
(0J Warrant to recover the expences of trans-
porting a Jlave out oj the fate.
county to wit. To fheriff.
Whereas I have received information from J P, a jufvice of
the peace for &c. that he the faid J P, did by his warrant, caufe
T, a Have brought into this commonwealth by A i\l, to be
tranfported out of the fame agreeably to law, the expences of
which tranfportation amount to thefe are therefore to re-
quire you to fummon the faid A M, to appear before me or iume
other juftice of the peace for this county, to lhew caule why
judgmenr fhould not be granted again ft him for the faid lum,
and execution iilue thereon. Given &c.
Sodomy, BUGGERYJ
Stolen Goods, (See SEARCH WARRANT, rcftitution)
Stray, (See ESTRAY)
SUMMON S.
IT being a principle of juftice that no perfon (ha!! be con-
demned unheard;—whenever a complaint is lodged againft
an offender the magiftrate fhould caufe him to be brought before
him, either by warrant or fummoas. Where a ftatute diretts
a particular mode of convening the party, that mode ih<>uld be
llrictly purfued: But where it i» left difcretionary with the ma-
giftrate, a fummons feems the ntoft pioper procek. Yet in ca-
fes of furety for the peace, spctty larcenies, and other <e onies,
and generally where the commonwealth is party, and ^lio in ca-
fes between party and party, where the body of the olAnder is
liable, a warrant is the regular procels, and not a luinmons.
In a fummons it is ufual, and upon many accounts cor.vcni-
ent, to hx not only a day, but a particular time of tne day, for
the party's appearing, but if he fhall appear at the time, and the
juftice
428 SUMMONS.
juftice (hall not attend, he is not to go away, but muft wait
the remaining part of the day, for many things may happen to
prevent the juftice's immediate attendance. So in the cafe of
the execution of a writ of enquiry, where the plaintiff having
attended at the hour appointed, and thefherifr not then attending
went away, and the writ was executed afterwards on the fame
day, in his abfence, the court held that the execution was regu-
lar, and he ought to have waited; for the fheriff might have
prior buftnefs to attend, which may laft beyond the hour: And
it is never underftood that the time on thefe occafions is to be
fcrupuloufly adhered to. Doug. ib£.
General forjn of a summons.
county to wit.
Whereas information and complaint, "hath been made beforp
me J P, One of the commonwealth's juftices of the peace for the
county aforefaid, that A O, ofj in the county aforefaid,
labourer, on the day of now laft paft, at in the
county aforefaid, did, (here recite the offence) Thefe are there-
fore to require you forthwith to fummon the faid A O, to ap-
pehr before me at in the faid county, on the day of
at the hour of in the noon of the fame day, to an-
fwer the faid information and complaint, and to be further dealt
with according to law. And be you then there, to certify what
you lib all have dene in the premifes. Herein fail net. Given
under my hand and feal the day of in the year of our
lord
Do the conjiahle of ,
Summons for a witnefs.
county to wit. To the ccnftable oi
Whereas information baui been made before me J P, one of
the commonwealth's in dices of 'he peace for the faid county,
tint, {litre recite the offence) and that A W, of in the faid
county, is a material vvitneis to be examined concerning the fane :
Thefe arc therefore to require you to fummon the f id A W, to
appear before mo at in the faid county, on the day
of c.f she hour of in the noon of the fame day, to
teflify his knowledge concerning the premises. Herein fail not.
Given under my hand and feal the day of in the year of
our Lord
Sunday, (See SABBATH.)
Surety
.surety For the Peace. 429
SURE! Y for the peace is one of fhq branches fof preventive
juflice, and confifts in obliging thoie. perfons whom ti
probable ground to fufpe£t of future rnifbehaviour to lEpuiate
with, and give full aiTurance9 to the public that fuch offence* as
is apprehended (hall not happen, by finding pledges or fecurifies
for keeping the peace. 4 Buuks Com.
Undtr this head I ihall fliew,
I. In what cases surety cf the peace ought to
be taken ex officio
II. For, &nd agai njt whom it ought to he granted.
III. For what cause is may be granted.
IF. In what manner it jbcli be g-anied.
F. Ilow a peace warrant j'yidl re executed*
FL Form of a recognizance of the peace
FIL How such recognizance may be joffiened.
VHI. How such recognizance may be discharged*
IX. Various precedents.
I. In what cafes furety ror the peace ought to
be taken ex officio.
- Any juftice of the peace may, according to his difcretionj
bind all thofe to the peace, who in his prefonce fhail rn..ke my
affray, or fhall threaten to kill or beat any perfon, or fttall con
tend together with hot Words, or ihall go about with unuiiial
weapons or attendants, to the terror of the people 5 and alio ail
fuch perfons as fhall be known to him to be common barrator"*
and alfo all thofe who (hall be brought before him b,. a con (fob is
for a breach ef the peace in prcfence ot fuch conffid le ; and all
fuch perfons, who having been before bound to keep the pc-ct,
ihail be ccnvidted of having forfeited their recogcisjiicv. I
Hawk. 126.
II For and dgairjl wUm it ought to be granted, -
l. It foems agreed at this thy, th.it all perfons whivfof. ver
under the protection of the commonweaitn, being 01 ]]«» tna-
moryy whether they be natural arm citizens, or i/hoo, or
attainted of tretfon he. have a right to demand forety Ci the
ptace. 1 Hawk.- lib.
' k
E e e
430 SURETY FOR THE PEACE.
It is eertain that a wife may demand it agrir.ft her hufband
threatening to heat her outrage-ufly, and that a hufband may
alfo have it againff his wife. Ibid.
Ac-ord'U-: ^ l\lr. Dahon, an infmt under tl.e age of 14 years
■ is r.n.vl.'l t* this furetr.— out a peifoii of von fane memory^ {hall
nti h.r iuv it granted for him nor againft him upon his own
KCji-.e'l; try I the juflire ou^ht to provide for his fafety. D. e. 117.
2. fiici* Teems to he no doubt, but that it ought, upon jult
c.v.r o! cci plaint to be granted by any juilice of the peace,
aga'fifi cny oerjbn wo.iflbever, being of fane memory, whether
be he a nng.iftratc or private perfon, and whether he be of full
jge, or under afee &zc. 1 Han k. 127.
But feme covers, and infants under age, ought to find furety
by thc.tr fr'end^ only, and not to be bound thernfelves; for they
are iucquble of anfweringnny debt, which is the nature of thefe
recognizances or acknowledgments. 4 Blacks Com. 248.
IIL For ivbit t cause it may he granted.
- I-erc'cr a perfon has jufl caufe to fear, that another will
In. n his houft, or do him a corporal hurt, as by killing or beat-
i"g htm, or that he will procure others to do him fuch mifchief,
1> nay demand the furety of the peace againft fuch perfon, and
that oyery juilice cf the peace is bound to grant it, upon the par-
£) s giving him fatisfa&ion upon oath, that he is actually under
fufh fear, and that he has juil caufe to be fo, by reafon of the
others having threattned to beat him, or laid in wait for that pur-
p- fe; and that he doth net require it out of malice, or for vexa-
tiun. 1 Hawk. 127.
Alfo it feems the better opinion that he who is threatened to
be imprifoned by another, has a right to demand the furety of
the peace; for every unlawful imprifonment is an aflault, and
viong to the perfon ef a man, And the objection that one wrong-
fully imprifoned may recover damages in an a&ion, and there-
f ore needs not the furety of the peace, is as flrong in the cafe of
battery as imprifonment; ?.nd yet there is no doubt, but that one
threatened to be beaten, may demand the fuicty of the peace. 1
Hank. 127.
Mr. Datton recommends great caution in granting furety for
the peace, efpecially where the application teems to arife from
rnplice.-— He alfo fays that furety for the peace (hall not be
granted merely becaufe the applicant is at variance, or in fuit
with another.—and both Lombard and Dalion think it is ndt
grantablw for fear of danger to the complainant's fervants or cat-
tie. See Lamb* 83. Dalu r. 116.
Mr.
SURETY FOR THE PEACE. 431
Mr. Dalton thinks that if a man threatens to beat the wife or
child of another, he may demand furety of the peace againft him.
Da It- c. n6.
But furety for the peace is grsntable only on an apprehenfion
of prefimt or future danger not for a battery he. that is pad:;
in this laft cafe the offender may be indeed. 'See Dalt. c. lib.
Surety of the peace may he granted to a. perfo'n, for dread of
damage to him, and his men, by fuch as have tlifcord with him.
4 Corn. Dig. 215.
IV. In ra-hat manner it fhall be granted.
It feemeth certain that if the perfon to be bound, be in the
prefence of the jnf.ice, he may be immediately committed, un-
lefs he offer lure tier -, and from hence k fo'lows a fortiori, that
he may be commanded word of mouth to find fureties, and
committed f^r his d!h,beb.cn;c; hut it is (aid that if he be ab-
ft-nt, he cannot be committed with u: a warrant from forne juf-
tice of the peace, in order to find fcretks, and that fueli warrant
ought to be under fea!, and to mew the caufe for which it is
granted, and at wbcfe'fuit, and that it may be directed to any
indifferent perfon. I Hi,vk. 128.
The warrant may direct the party to be brought either before
the juffice himfelf, y, ho granted it, or before any other jufticcj
but it is moff ufuai to dircd the party to be brought before him
only 5 for it is prefumed he has the bell knowledge of the fa ft.
5 A 59-,
The ilium* die writ of fupplicav.t, not being among the
powers of a juftice of the peace (for whofe information this work
is intended) nothing need here be laid of it.—See 4 Com. Dig.
215.
V. lira, a peace V)arrant jljould be executed.
1. It can only be eyecuted by fome qi e of the officers, or,
perfons to whom it is dire- ted. I IFjvA-. 128.
2. It teems general!)' agreed that v/hc-re a peifon autherized
by warrant of a juftice of the peace, to compel a man, who is
flickered in an houfe, to find fin trier fy the peace, or good he-
havicur, is denied quietly to enter imo it, he m:y jultify break-
ing open the doors, in order to take him ; but he mrfi fiik tig-
nify to thcfc in the houfe the caufe of his coming, and rtqueifc
them to give him admittance. 2 Hayok- 86. Fcft. 321.
3. If the warrant fpeciaily diicdh in at the party be brought
before the jufi ice who made it, the officer ought not to carry
him before any ether 5 but if the warrant be general, to bring
him
432 SURETY FOR THE PEACE.
him before any iuftice of fuch place, the officer has his eIe£fioo
to bring him before what jufiice he pleafeth. I Hawh. 128.
4 it is Lid by Hawkins, Dalian, and Hale, that if the party
re'hffi to go before a jufiice, or to find fureties, the confiable
jd-} commit him to jail. See I Hawk. 128. Dalt. c. 118. 2
H. i-I. 112,
But with due fubmiffion to thofe great authorities, I 2ppre-
bend, that no fuch power as that contemplated by thi< kind of
v/arranr; is given to confiables, either in England or America,
1 or, if it be admitted that he may commit the offender to prifon
for a rcfuLl to find Efficient fureties, we mu!i alfo grant him
the power of judging what a£h will confiitute fuch re hi fa 1, as
well as to ariminiuer an oath to the fecuritics, in order to judge
of their Efficiency, or ir.fufficiency-the former might he
made ail engine of oppreffion,—the litter would c/identiy be
illegal,
5. If the officer do arreft the party, and do not carry him be-
fore the jul'fici to find fureties j or if be neg'edt any p:rt of hi*
duty arifing under the warrant, he is punifiiable by iadtcimect
and fine, by the court, and alfo liable to the udtion of the pany
for falfe imprifonment; foe vyhere an officer doth not purine the
efibct of his wa-rant, his warrant will not excufe hhn fur what
he hath done. Dalt. c. 118.
6. Wnen the party cometh before the jufiice, he mufi offer
foresie-, or elfe the jufiice may commit him: for the jufiice
ntedcth not demand lurcty of him. Dalt. c. u8. 169. But it
is faid by Pratt, in the cafe of the King v. Wilks. E. 3 G. 3.
that a jufiice cannot commit Tor not finding fecurity, until the
party has been required, and Ks refufed fu to do. 1 LeacDs.
'Jlawk. 255. in notes.. '
7'. If the jufiice was deceived in the Efficiency of the fecurb*
tTes, he or any other jufiice may afterwards compel the party ta
iind and put in other Efficient iscurkies, and may take a new
Tfcogi izacce'for the fame.' Dak; c.T 16.—119.
8. But if fh* furcries die,' the party principal, fliaji not be
er.mpelied to find new fureties. Dalt. c. 119.
9. Alfo if a man that was bound to keep the peace hath hro-
ken hi* bond* the jufiiccs ought of difcrction to bind him anew
Dutab. 78. "
But not until he be thereof convidted by due courfe of law j,
for before convi£tk.r\ he fiandeth indifferent whether he hath'
luilcited his recognizance cr not. Crompt. 125.
VI Form of a recognizance of the peace.
fvems that 3 recognizance of the peace, may be regulated;
- ' ' • Vy
SURETY FOR THE PEACE. 433
by the difcretion of the juftice, both as to the number and fuIK-
ciency of the fureties, and the largenefs of the fum, and the con-
tinuance of the time, for which the party fhall be bound And
it hath been faid, That a recognisance to keep the peace, as to
a perfon for a year, or for life, or without expreffing any certain
time (in which cafe it ilrJl be intended for life) or without fix-
ing any rime or place for the party's appearance, or without
binding him to keep the peace agaiuft all the citizens of the corn-
moriwealth in general, is good. 3 Hawk. 129. Dalt. i. jig.
120. 1 •
However it feems to be the ihfeft way to bind the party to ip-
^>ear at the next fefilons of the peace, and in the mean time to
keep ihe pe-ce as wed towards all the citizens of the common-
wealth, as particularly to the party prayiug it, according to the
common form of pi ece.icnts. 1 Hawk. 129,
HI. Hona such recognizance may be forfeited.
I- 1 he recognizance is forfeited if the party make default of
appearance, and the fame default fhall be recorded. 3 H. 7. c I.
K the party have any excufe for not appearing, it feems the
yoiut is not bound peremptorily to record his default, but m*y
equitably confiderof the reafonablenefs of fuch excufe. I H. 130.
And Mr. Dtilim fays, in cafe of theficknefs of the party, lo
that he cannot appear, he has known that the juftices upon due
proof thereof, have forborne to certify or record, fuch forfeiture,
or default; and that they have taken fureties of the peace, from
fome friend of his prcfcnt'in court, until the next court, for that
the principal latent of the recognizance was but the prefcrvation
of the peace. Dak. c. 120.
2. Alfo there is no doubt but that it may be forfeited by aay
actual violence to the perfon of another, whether it be done by
nre party himfe'lf, or by others thro'his procurement; as man-
Slaughter, rape, robbery, unlawful imprifoament and the like.
I hawk. 130,
3. Alfo it hath been holder), that it may be forfeited by ahy
treason ag.iinft the commonwealth, and alfo by any unlawful af-
fembly in terror of the people, and eveif by words tending di-
re&ty to a breaeh of the pe .ce, as by challenging one to figh',
n. in his prefence, threatening to beat him. I Hawk. 130.
Oinerwife it is if the party be abfent; and yet if the party fo
bi ur.d (hail threaten to kill or beat another who is abknt, and
after lie tn wait for him to kill or beat him, this is aforfei-
ture of his recognizance. Dak. c. 121.
- * - ' 4.
4J4 SURETY FOR THE PEACE.
4. However it fecms that it /hull not be forfeited by bare
W'Otdsof heat and 'ttvb r, vs the calling-a-man a knave, teller of
lie£, rafca*; or drtrtt:- r3'j for tho'u?ch words may provoke a
cb'olthic man to break price, yet they do- not directly chal-
I'.ngi him to do \(, nor does it appear that the fpeaker intended
to'CaTy his rrfer.tmen.: a tv further. Ar.d it is faid that even a
rocopf;ii';.ince for the go~d b haviour ttittl not be forfeited for
fufch wOrd?'; 'from vfbfe'ote it follows a fortiori, that a recogni-
Zance for the pea'se mall not, I Hawk. I'po.'
5. Alfr there are feme aftual rjuttinable] attaultson the per-
fan 6'f5 another, which'do not amount to ? forfeiture of a recog-
riizance for tho pcafo; As if nn ofneer, having a warrant againft
<h^,^V,Ab'"v;H not flutter himfof to be arreted, beat or wound •
Ittrn theuttt-mpt to hke him"; or if a patent, in a reafonable
mar.H'„r chahife his nhii.i,' of 0 matter his 'hr/rat, being adtually
in his lea ice vt the tinc e. fohoolmalier his fcholar; or a
j.dcvr his ptif-incrf or even a bulband his wife as forne fay; or
it 1,no c mimed a friend who is m?.d, and bind and beat him he.
in iiich a' mattntrr.s if. proper in his circumstances; or if a man
force n fiverc from one who rivers to kitl another therewith; or.
if a man'gertiy lay his hen-b on another, ard thereby ftay him
htm exciting a dog ngaintt a third perfon; cr if I beat one (with-
oat refunding turn, or throwing at him a dangerous weapon),
who wrongfully endeavours with violence to difpoffefs me of my
land, ■or^oodss or tire, goods of another delivered to me to be
keptfor htm, and will not defifl upon my laying my hands gently
upon him, and ditturbfog him; or if a man beat, or as fome
Ciy, wound, or main, one who makes an attault upon his perfon,J
cr that rf his wife, parent, child, or matter, efpecbily if it ap-
pear that he did r il he could to avoid fighting before he gave the
wound; or if a mail fght with* cr beat one who attempts tu knl
an) itrangen; or if a mart even threaten to kill one who puts^
him in fear of dead, in fitch a place where he cannot fafely fiy,
from him; or if one,imprifon thefe whem he fees fighting, till,
the heaf is over. 1 Hawk. 130. L
6. But it feeiyis- agreed, that no one fhall forfeit foch a recog-
rttzance, by a bare trefpafe of another's lands, cr goods, unlds.
it be accompanied with •fonie violence to the pcr.cn, I Hawk.
130—260.
7. Nor in the exercife cf lawful fports, 4 Csm. D't%. 221.
But it is faid,, that he who wounds anmi.er in fighting with
naked fwords does in itriftnefs. forfeit fuch a recognizance, be-
caule pp ponfent can make fo dangerous a diver lion lawful. I
Hawk. 130.
' 8. Nor will fcolding words, be a forfeiture3 for an aft mufl
be done. 4 Info. 180. 9.
SURETY FORTHE PEACE.
9. Nor will1 a hurt ariftng from negligence or rpifchence;
tho' the party would be bound to anfwer tor it in a ci\'ii- acti-
on. 1 Hawk. 131. '
Fill. 'How such recognizances may be discharged.
1. He who is bound to keep the peace and to appear at a cer*
tain day, muft appear at that day and record his appearance, a.R
tho' he who craved tfhe peace Cometh not to dciire that it may
be continued} otherwife the recognizance cannot be difchargcd,
Dalt. c. 120. •
2. It may be difcharged by the dcarh of the principal party
bound thereby, if it was not foifeited before. 1 Hawk. 129.
3. Mr. Hawkins doubts whether the party complaining can
difcharge a recognizance for the peace 1 Hawk. 129.
4. But it isfornetimes dlfcharged by the releafe of the puT•-
cutor, on motion, by producing h,is confent verified by ainda-
vit:—or confentir.g by counfel. 4 Com. Dig. 222.
5. And if a man be bound to keep the peace, towards die coml
monwealth, and ail its Citizens, but not towards ariy rarhru' tr
perfon, and to appear at fucn a fefhons, the court at that f.fftoj'4
may make proclamation, that if 'any one can fhew c rule, why
the peace granted againft fuch a one lhali be continued, he m.i 1
fpeak} and if no perfen eon-.eth to demand the peace agaiutlhim.
or to (hew caufe why it fhould be continued, then f.te couit
ltiay difcharge him. But if a man be boarid as aforefiid, and
efpecially to keep the peace towards a certain perfon, (f e:e tin-'
fuch perfon cometh not to defire the pence, may be condnued,
yet the court by their difcretion may bind hi:n oyer to the .next
felfions, and that may be to'keep the peace againfi: that perfon
only, if they lhall think good. Dale. ckap. 120, r
And it is' f&id that the fureties fir-e not viifch-irged by thuir death,
hut that their executes or ad uim Orators combine bound, as
their teibators, or intestates were. ■ I Jlauk. 129.
g. 6. Like wife if the parfy be imprifomd for dtfiult of ftsfeiwr,
and after he that demanded thep'/.ce adrift him habpe.1 :n -.H}
it fcemeth the juftice may make his liberate or yft.riaut fvr toe
delivery of fuch prifoner, for after inch there iea.neth
C2t;fe to continue the ttiter in prifon. Dalt. c, Ii8.
Alfo any jufiice may upon the offer cf f.ifti prhoncr, t^he
furety of him for the peace, and may thereupon deliver" nun.
Dalt. c, 118.
There is yet another mode, (and by far the mod nfu d, in
this ftate) in which a recognizance for the peace mm/ be <h«'-
charged} which is, by the a£t of the court itfelf to' winch lurk
recognizance
436 SURETY FOR THE PEACE.
recognizance is returnable, on a full examination of the evidence?
as well on behalf of the complainant, as the party accufed. For
altho* it is ftrongly holden, in the books, t That the court will
* not permit the truth of the allegations to be controverted by
* the defendant, but will order fecurity to be taken immediately,
* if no objections arife upon the face of the articles themfuives.'
(i. L. Hawk. 255.—Str. 1202.) Yet it is the corjflant prac-
tice, in the courts of this commonwealth, to go into a full en-
quiry of the fads, and toreleafe or bind the pas ty, as they may
judge rnofl proper from the nature and circumftanccs of the cafe.
IX. Various Precedents.
(*) Forri of the oath to be admihijlered to the
person demanding surety of the peace.
You fhall fwear that the furety for the peace which you now
require againft A O, proceeds from a well grounded fear mat
the faid A O, will burn your hcufe, or do you feme corporal
hurt, or that he will procure fome other perfon, or perfons to do
you fuch injury} and that you have juft caufe to be afraid in
confluence of the faid A O's, threats} and that you do not re-
quire fuch furety out cf malice, or lor vexation. So help you
God.
(B) IVarrant for the peace. j
county to wit.
Whereas A' J* of in the faid county, yeoman, hath
perfor.aily eonic before me J P, one of the common wealth's juf-
tices, aftigned to keep the peace in the., faid county, and hath
taken a corporal oa h, that he the faid A J, is afraid the faid A
O, of in the faid county, labourer, will beat him (wound,
maim, kill, or do him fome bodily hurt) and hath therefore,
prayed furety of the peace againft him the faid A O : Thefe
ure therefore ©n the behalf and in the uame of the common-
wealth to command )ou jointiy and leverally, that immediately
upon the receipt hereof you bring the laid A O, before me to
s;u d furery as well for his perlbr.al appearance at the next court
to be holden for the laid county as alfo for his keeping the peace,
in the mean time towards the citizens of this commonwealth,
and chiefly towards the faid Bj. Given under my hand and
leal at in the faid county, the day of in
ihctear ■ '
J 1 •
Nate,
SURETY FOR THE PEACE.
Note,—Tliis warrant mav be directed to the flierifF, confla-
ble, or to any private perfun by name, who h no officer; tot
the jullice may authorize any one to be bis officer whom he plea-
fes to make fucn; but it is moft adiifeable to direct it to the
contlable of the precinct wherein it is to be executed; for t^at
no other conftable, and a fortiori, no private pcrion is compel-
Lble to ferve it.—2 Hawk. 86.
(Cj Warrant for the good behaviour, from
Lambard & Daiton.
county to wit.
AP, and BP, juftices of the commonwealth, afligned ta
keep the peace within the faid county, to the flier if of the Bid
county, and to all and Angular the conftablcs, arid other orlicers
in the faid counyy, greeting:
Forasmuch as we are given to underfland from the inform .-
tion, teflimony and complaint of many credible perfons, th..t
A O, of in the faid county, gentleman, a .id B O, of
in the fame county, yeomau, are not of good name and f„.rre,
nor of houeft converfation, but evil doers, rioters, barrators, ard
ditlurbers of the peace of thfe commonwealth, fo that m^do,
homicide, ftrifes, difcords, and other greivances and damages,
amongft the citizens of the faid commonwealth, concern 'g
their bodies, are likely to arife thereby: Therefore on behalf
c,f the faid commonwealth, we comnnnd you and every of you,
that you omit not by reafon of any liberty within the county
afcrefaid, but that you attach, or one of you do attach the afore-
Taid A O, and B O, fo that you have them before us, or others
our fellows, juitices of the faid commonwealth, afligned to keep
the peace within the county aforcfaid, as foon a-, tlwy can
be taken, [or before the juflices of the faid conimonweflih,
afligned to keep the peace with the county afore faid, and alio r:>
hear and determine divers felonies, trelpafies, and other mifde-
meanors in the laid county committed, at the next coart to vi
holden in and for the faid county] to find then before us for the;
fahi juftices) fuflicient furety and mainprize for their good beha-
v:our towards the fluid commonwealth, anu all its citizens, ac~
cording to the form of the (brute in ihch cafe made and previa-
ed. An.d this you (hall in no wife omit cn the peril that flw.ll
cuius thereon. And imve you before us, [or, befl .re the fud
juitices, at the fcilions aforcfaid] this precept. Given under cur'
leafs at in the county aforeiaiJ, this day of
in the year
(D)
Fff
433 SURETY FOR THE PEACE.
(D) Recognizance for the peace or good behaviour.
County to wit.
Be it*remembered that on the day of in the year
A O, of in the county aforefaid, yeoman, A S,
of the fame place, yeoman, and 13 S, of the fame place, yeo-
man, came before me one of the commonwealth's ju ft ices of
the peace for the county aforefaid, and acknowledged thcmfelves
to owe to C M, efquire, governor ©r chief magi Urate of the
commonwealth of Virginia, and his fucceffers, to wit, the faid
A O, the fum ©f dollars, and the faid A S, the fum of
dollars, and the faid B S, the fum of dollars, cur-
rent money of Virginia, to be relpe&ively levied and made of
their feveral goods and chattels, lands and tenements, to the ufe
of the commonwealth aforefaid, if he the faid A O, fliall fail in
performing the condition underwritten.
The condition of this recognizance is fuch, that if the above
bound A O, fliall perfonally appear at the next tourt, to fee hoi..
den, in and for the county of aforefaid, to do and receive
what fhall then and there be enjoined him by the faid court, and
in the mean time fhall keep the peace [or, be of the good beha-
viour; or, (hail keep the peace, and be of the good behaviour}
towards the commonwealth and all its citizens, and efpecially
towards A J, of • in the faid county, yeoman: Then the
faid recognizance fhall be void, or elfe remain in f ull force.
(E) Mittimus for want of fureties.
county to wit.
To the conjlable of and to the keeper of the jail in the
faid county.
Whereas A O, of in the faid county, yeoman, is now
bromrbc before me J P, one of the commonwealth's juuices,
affigi.td to xecp the peace, in the faid coun y, requiring him to
f! d furli«ient fureries to be bound with him in a recognizance,
for ni- pmfooal appearance at the next court to be holden in and
to - the fiid counry, and in the mean time to keep the peace [or,*
b <!" the good behaviour J towa'ds the fid commonwealth, and
an ns citizens, and efpecially towards A J, of in the faid
county, yeoman ; and whereas he the ft d AO, kath refuled,
and dotii now reftife before me to find luch fureties: Thele are
therefore, in the nume of the commonwealth, to command you
the faid conftable, forthwith to convey the ftid A O, to the
common jail of the faid county, and to dehver him to thv keeper
thereof
SURETY FOR. THE PEACE.
439
thereof there, together with this precept: And I do, in the
name of the (aid commonweahh, hereby command joti the Fid
keeper to leceive the (aid AO, into your cuftody, in the fa id
jail, and him there fafely keep,- until he (hall find fuch fureties
as aforefaid, [cr, be otberwife difcbaiged by due courfe of law]
Given under my hand andfeal at in the faid couhty, this
day of in the year
(Fj Liberate, or warrant to the jailor to discharge
one committed for want of sureties.
county to wit.
J P, one of the commonwealth's juftices, afligned to keep
the peace within the faid county, to the keeper of the jail in the
faid county, greeting:
Forasmuch as A O, in the public jail in your cuftody now
being, at the fait of A J, of in the Cud county, yeoman,
for the want of his finding fufiicient fureiies for his perlonal ap-
pearance at the next court, to be holden in and far the laid
county, and for his keeping the peace [or, being of the good
behaviour] in the mean time; towards the faid commonwealth
of Virginia, and all its citizens, and efpeciaily towards the faid
A J, hath found before me fufficient lurches, to wit, A S, of
yeoman, asd E S, of yeoman, either of which
hath undertaken for the faid A O, under the pain of del-
Jars, and he the faid A O, hath undertaken for himfelf under the
pain of dollars, that he the faid AO, (hall and will per-
finially appear at the next court, to be holden in and for the faid
county, and fhall well and truly keep the peace (Vr, be of the
good behaviour] in the mean time, towards the Fid common-
v.eaith and all the citizens thereof, and efpeci.dly towards the.
faid A ]. '1 he re fore on behalf of the faid commonwealth, I do
command you, that if the faid A O, do remain in the faid jail,
lor the faid caufe, and for none other, then you forbear to grieve
or detain him any longer, but that you deliver him thence, and
fuller hirn to go at large, and that upon the pain that *wiil fail
thereon. Given under my hand and ftal at in the fafd.
county, this day of in the year
Surety for the Good Behaviour.
SURETY for the good behaviour refimbles in fo many in-
(lances furety for the peace, both as to the manner in which
44° ' Surety for the' Good Behaviour.
it is to be taken, fuperfeded and difcharged, that it will not re-
quire a particular consideration, except as to the following points;
I, ■ For what * mifoehaviour it is to he required.
IL ' For what it jhall be forfeited. ■
I. .For what rnifbehaviour it is to be required.
This (pedes of recognisance, with fureties, ' which includes
furety tor the peace,and femething more, may. be required by
the judges of the court of appeals,, high court of chancery, and
general court, and the juftices of the peace in each county and
corporation, offuch p;rjons who are not of good fame, b\r virtue
of the a<5t of the General Ailembfy, v. 69. p. 100—of the- Re- #
vifed Code.
, Under the a£t of 34 Edw. 3. c. t. which ufes the fame ge-
neral mode of eXprd;ion,< it hatb been holden, that a man-may
be bound to Ins good behaviour for caufe^ of fcandal. agairi/t
good morals, as well as againf the peaces* * for haunting bawdy
houfes with women of bad fame, or for keeping' fuch women in'
his houfe. Thus a.!fo, night- walkers j eaves-ciroppms; inch as
ktep'fufpicious company pr are reported to. be pilferers or rob-
bers; fuch as fleep in the day,. and .walk ih the night, copimon
drunkards; whoremafters; the, putative fathers of baftards;
cheats; idle vagabonds; and other perfans whole mifbehaviour
may reafonably bring them within the general words of the ifa-
tute, as perfons not of good, fame; an exprellion it misfl: f-e
owned of fo great a latitude, as leaves much to be determined
by the ciifcretion of the magillrate'himfelf. But if he com'miw
a man foj want of fureties, be muff exprefr .the caufe thereof
with convenient certainty; and take care that fuch cauie be a
good one. 4 Blacks. Coin. 256. i'fdaivk. 132,. ' <
IL For what it fhall he forfeited.
A recognizance for 'be good behaviour may. be forfeited by,
all the fame means'- as c.ne for the f*-curirv f ir the peace, may be;
and s!fo-be fume orhnr*. by going armed vVitb unutual at-
'tend: rce to the lervor of the oeopie; by !p ak:rg v. orcs tending
• to »ed:t«ou j or by ' comn i-'ii' p any oi itr»fe acts cf rbiibehavi-
our,' whir.1) " he re ogr'.iz&oee was i .tended to prevent. But not
by barely lyvirgfrefh cuidr -P fidp'.CHMi, of' tn-.t*" .which perhaps,
i-nav never nappe" ; for - a.)' it i:: juft to compel impacted peAons
%o give fecuri.ty to tu& public againib mifqehaviour that is appre-
"1 • ' ' i ' ' " " "V ' * toidedjt
Surety for the Good Behaviour. . 441
tended; yet it would be hard upon fuch fufpicion, yvithout the
proof of any a<^:ual crime, to punifh them by a forfeiture of their
recognizance. 4 Blacks. Com, 257. 1 Hawk, 133.
. The precedents for this tide may be found among thofe under
the preceding head 4 Surety for the peace.'
There arehlfo feveral other offences,' for which fbrety for the
good behaviour is required by law.
: As, by Virginia laws. p. 19. ' It (hall not be lawful for any
4 perfon.to offer in payment, a private bank biil or note for mo-
* ney, payable to bearer; -and whofoever. fhall offend herein,
4 fnall not only'forfeit'to the informer ten times the value cf the
4 (urn mentioned in fuch bill or n®te, but may be apprehended
4 by warrant of a juftice, and upon due proof of the" fa SI made to
4 him, or upon his own acknowledgement thereof, be bound to
4 the good behaviour, or if he afterwards offend in the like man-
4 ner, it fhall be deemed a breach, of the( condition of the rccog-
4 nizance/ ,
A perfon convicted of unlawful gaming fhall find furety for
his go^d behaviour, for twelve ,month,s. V. I. p. 184. 1
So, for keeping a tipling houfe <kc. fee 4 Ordinaries'
A perfon convi&ed a third time of, unlawful hunting., See
4 Hunting.' ' • - ; ) • *
■ '1 e
—, : —: .—\— , —
S W E A R, I ' N G.
THE penalties for profane fweating, curfing, or getting
drunk, are 83 cents for each offence, on conviction by
the oath of one or more witpeffor, ,the confeffion of the party or
the offence being committed in pretence of a magifuate. See
Virginia' laws. p. -286. cf the Bevifed Code. j '
* V ' v ' '' ■ (
, , ' S U , M M' . O N- s.
county to wit.-- To. cCnflable..
Whereas information hath this day been madebefore m'e J P,
one cf ike commonwealth's-juflices of the peace for the J a id covniy,
upen the caih of Adf of yeoman, ihat en the day of ■*'
in ihe year he heard A O, of ' in the faid county* yco-
man, at' in phe faid county, [wear one profane oath (>T,
curj.: one profane* carps.—faw the faid A i), drunk) CJ hfe
are therefore to'commend yen to caufe the faid A O, forthwith to
appear btfor>' me* to aafv-r .'he peered Pes, 'end to be further dealt
veld) according to law. Given under my hand and feal at in
fee faid county, the .. day cf. in tie year . ■ ,• ■
443 • S W E" A R I N O.
If-the cppviilion be for the offence committed in prefence of
a juffice it may be in the following form. %
Be it remembered that on the day of *•: d-* *
A Oy was conviBcd before me J P, one oj 'the'cpy rnonwealt-ks juf-
ticef of the peace for the county of . of fweti tg „ . :/ (>l. *)
profane oaths, (or curfeg) one [or moie) piofane . .r (if
being drunk) Given under my hand-and feat, the u.-<. . j. year:
afar efaid*
The form of the warrant far diffrefs may be fpunu lille
* Gaming &cd
' Tenant, BRENTS.)
' > -Theft, (See LARCENY,).
Theftbo^e,'(SW BTLQN Y.)
" . Jip'Iing houfos, (See OKDnNARIES.) / ■ . ' -
T O B A" C CO./-
THIS paving long been a ffople commodity in this countvy,
many ufeful regulations have been made, to render it a
profitable obje& of exportation.—But as few of them come un-
tier the cognizance of a juffice of the peace out of court, I ihall
only refer to the ad of AfTembly as it is printed in the Revifed.
Code, and infert fuch precedents as are particularly, tjfoful for,-
rrtagifirates in thofe cafes, which properly belong to the jurifdic
lion of one or two juffices.- See Virginia laws* chap. 135. p*ge 1
2.64, of file Revifed Code* * ' - ' " ' •
(<<4) Warrant again ft inspectors for failing to burn.
\ tobacco, refused> bp thpm, on seB* 17-.
county to wit. -To .1 conffpble.' * «
Whereas information hath tiiis day been made to me JP, a
juffice of the peace for the faid county, by A J, that oh the
day of - ' laft paft, hogfliead of tobacco Was refufed
by , and '' infpedlors at - warehcufe, in the county afore-
laid, as unfit to pais, and the (aid infpedtors failed to burn the.
fame, in the brick funnel ere&ed for t&at purpofe, whereby they
have forfeited the fum of Asven dollars: -Thtfe ,are therefore to
require you to fumrnonthe faid dnd to appear be'ore me,
or fome other juffice of the peace for the faid county, to anfw r
the premifes. Herein fail not. Given under my hand and feal &e.
(B J Warrant again ft a picker of tobacco, on sett,
* 17. for refujing to pick refused tobacco.
Whereas &c. (as before) that A P, one of the pickers of.
1 ' 1 tobacco
tobacco. 443
tobacco at wareboufe, in the county nforef.id, on the
day t>f lad pii, did refufe*to picir, and feptrate the good
tobacco from the Lv.d, of hogihead, 'of tobacco rcfuftd by
the infpedtors of the jkid warehouse,' being required by the Cud
infpedors, whereby he hath forfeited the fom of four dollars.
Thefe are &c.
fCj Warrant again ft a picker of tobacco for acl-
ing without being qualified, on seel. 18.
\
Whereas &c. (as in the firjl) did undertake the opening,
forting, picking, and le pa rating tcbacc© brought to the* raid
warehoufe, . for hire and reward, without having^een qualified
Agreeable to law, whereby he hath forfeited the fum of lour dol-
lars: Thefe are &c.
(DJ Warrant againft an< inspeBor for refnjing to
deliver tobacco when demanded, on sell. 20*
Whereas &c. (as in the firji) that and infpeSfors &c.
did refufe to deliver 1^9 pounds of tobacco agreeable to their re-
cept given for the fame, whereby they have forfeited double the
amount of the laid tobacco: Thefe are <$cc. 1
(E J Warrant to go on hoar (I a veffel to search for
r uninspected tobacco, on setl. 27.
Whereas tic. as in the firft) on oath, that there is good caufe
to fufpedt that there is a quantity of tobacco uninfpebkd in calk,
balk, or parcels, en board the Schooner now riding at
near this county. I do therefore authcrife and require you to go
on board the laid Schooner, and fearcn for, and feize foch tobac-
co, and the fame being feized,. to bring on fhore before me, or
fome ether juflice of the peace for this county, to be diipoibd of
according to law* Given &c.
- 1o the Jhenff (or conftabie) of county.
The warrant of diftrefs, where the penalty recovered is under
five do'lars, may be formed from thufe given under titles,
* Gaming4 Pork, &c.'
(F) Form of a certificate to be given to the person
who has loft'a tobacco note, on seel. 41.
county to wit*
I
TOBACCO.
I do hereby certify that on this day of in the year
A L, of the county of pcrfonally appeared before me J P,
one of th'* commonwealth's juftices of the peace for the county
of {the county where tne tobacco is payable) and made o&th
that on or about the day of lath paft, he cafuady loft,
('mifa'd, o" dtf.icyea, as lbe cafe nicy be) a receipt for one
hogfhead of tobaccr, granted by and ir.fpe&ors of to-
bacco at wareh.'iife, in the county of afortlhid, marked,
Ac. {oerc infert the marks, numbers, weights, to whom and where
fayubh) and that at the time the laid receipt was loit fnuflaid,
or dellroycd) he the laid A L, was lawfully entitled to receive
the tobacco therein mentioned. Given Ac.
(G J Form of the bond to the inspectors, on seel. 4 j.
7he penalty may be in the ufuat form, in double the amount of
the tobacco lo/l, payable to the infpefiors, with the following condition.
The condition of the above obligation is fuch, that whereas
the above bound A L, hath this day produced to us the above
named and in fpedlors of tobacco at warthoufe afore-
faid, a certificate from under the hand of J P, a jufiice of the'
ptace for the county of dated the day of in the year
certifying that the (aid A h, had made oa'h before him to
the iofs of a hogfhead of tobacco, marked Ac. (here injert the
marts, weights tsfc. as defcribed in the certificate) for v/hicn faid
hogfhead of tobacco the faid A L, hath required a duplicate of
a receipt, which we the laid and have accordingly
granted. Now if the faid A. L, and {his fccuriiy) fhall well
and truly indemnify the perfbn who may hereafter produce the
original receipt lor the faid hogfhead of tobacco, within twelve
months from the date of the notice publifhed of the loL of the
fame by the faid A L, the value paid by the faid holder of the
original receipt for the fame, then the above obligation to be
void, elle to remain in full force.
f HJ Warrant by two jujliccs agaitf the wafer of
a njigei fur taking in tobacco in hulk or par-
eels, on sect. 46.
Whereas Ac. (r?j in thefirjl) that A O, of did take in ! is
vefieb nowhgrgat near this coun-y, fbnett parcels oi co-
baccw, contraiy to the adt of the General AiltmbU m th-e rate
made am provided, whereby lie hath r.or only fort area rhe hud
tcbacco, Out iiUy cents for every pound thereof, [iinde are Ac.
T rcalcn
TREASON. _ 445
TREASON, according to lord Coke, is derived from tra~
bir, to betray; and trahfon, by contraction treajen, is
the betraying itfelf. 3 Inji. 4.
4 If a mat! do levy war againft this commonwealth in the fame,
4 or be adherent to the enemies of the commonwealth within the
4 fame, giving to them aid and comfort in the commonwealth or
4 elfewhere, and thereof be legally convidted of open deed by the
4 evidence of two fufficient and lawful vvitneftes, or their own
4 voluntary confeffion, the cafes above rehearfed, fhall be judged
'jtreafon, which extendeth to the commonwealth; and the per-
4 fon fo convidted, ihall fuffer death without benefit of clergy/
Virginia laws, chap. 136. page 282 of the Revifed Code.
So to erecl a government within the limits of this common-
wealth, independant of it &c. See Virginia laws, page 282. fed!.1
2. of the Revifed Code.
High treafon, &c. is triable in the general court. See the above
law. fedt. 7.
The judgment for treafon, by the common law, is, that the
perfon be dragged to the place of execution, there hanged by the
neck, cut down alive, his entrails taken out and burnt before his
face, his head cut off, his body divided into four quarters &c.
See % Hawk. 443.
The judgment againft a woman,' is, ' that fhe be, drawn and
burnt. 3 Jnfl. 211.
Thete were the feverities of the common law, when to imagine
the death of the king, queen, or theft eldeft fon or daughter; or
to have carnal knowledge of the kiitg's wife or eldeft daughter
&c. conftituted high treafon.—But it may well be doubted how
far fuch judgments could now be given in this ftate, fiuce by uie
declaration of rights (Art. 9.) 4 cruel ortunufual punijhwents frail
not be inf idled.'
Petit Treason.
Treafon has ufually been diftinguifhed into High, and Vei't,
H*gh treafon is that which we have already mentioned, and is
ritlined by our laws.—1'ifii treafon is declared by the ftatute eft
25 Raw, 3.Jl. 5. ch. 21, and is when a foivant flayetli his mat-
ter, or wile her iiufband &c.
Mifprifion of Treafon.
Mifprifion cometh of the French word mepiis, which properly
figniheth negledt or contempt: And mifprifion of toon inle-
gai tuuh rftauding, hgnlfteth, when one knoweth of any treafon,
thu'
446 T R S.i A S O: N.
tho' no party or confenter to it,- yet conceals it, and doth not
J'evrvl it in convenient urne 3 In ft. 3b. I £T. H. 27
The judgment of mbpiifmn of iiealon is, to be impiiioned
during lire czc 3 If-, 36.—the forfeiture, by the cpnr.msn law,
is taken away by our laws. Sec c Aiiz:::dsr.'
Treigii, (S« FENCES, FRUIT TREES.)'
V A G ■ R A N T ' S, •
V Virginia laws, page iga./jT 26. of the Revlfed Code>
JL3 The overflers ek the poor cr any one of them, areempow-
ercd. upoi? difcevering any - .vagrant within their refpedtive dif-
f.ia's, to make information thereof to any jeftice of the county,
and to require a warrant for apprehending fuch vagrant, to be
brought before .him or any other jullice; and if upon examina-
tion it (hall appear to the julficc that the perfon iu within the cef-
ciiption cf a vagrant, as hereafter mentioned, fachjuftice (hall,
by warrant under his hand, , order fuch vagrant to be delivered
to fbme one of the overfcers of the poor of the dilfriit in which
fuch vagrant iiiall have been apprehended, to be employed in la-
bor for any term not exceeding 3 months, and by the f'aid ever-
feer of the poor, hired out for the .bed wages that can be pro-
cured, to be applied to the ufe of the poor. If fuch vagrant fhall
run away during the time of bis fervice, he fhall be dealt with in
the fame manner as other runaway fervants. .
. St ft: 2b. Any able bodied , man, who, not having where-
withal to maintain hjmfelf, fhall be found loitering, and fhall
have a wife or children, without means for their fubhftance,
whereby they nr y. become burfhexifome to their county or town,
and any able boJied man without a vrife-or child, who, not having
v.herewbhal to maintain himfelf, {hall wander abroad, or be
found loitering without betaking himfelf to fomehCneft employ-
men:, or fhali go about begging, fhali be deemed and treated as
a vagrant. ■
(A) AVirrarJ to apprehend a vagrant*
county to wit, . , . '
\\ .Vivas information hath this day been made to me TP, a
jm'Tu of the peace for this comity, by H O, one of the ovirfecrs
of tne p. or for diffricf, iii the county aforc-frid, that A V,
an'-sole bodied man, who, not havi::.g wherewithal to' fupocrt
hunVh, is found loitering,' and. has a wife and children, without
means for their fubbflance {jj anj other 'defeription of a warrant
• ?;ier.Ucn
VAGRANTS, 4*7
mention it) Thefe are to require you to bring the laid A V,
before me, or fome other jultice of the peace for this county, to
be dealt with according to Jaw. Given under my hand Ac.
To conftable.
fBJ Warrant for hiring out a vagrant.
county to wit.
Whereas from the information of R O, one of the oveTeers
of the poor for diilrid m this county, A V, who, was
defcribed by him as a vagrant within the meaning <f tne a 51 of
the General Aliemlxy, was this day brought bef 're re J \ a
jullice of the peace for the laid county, and upon due examira-
tion before me, it appearing to mc, that the fa id V, comes
within the defcription of a vagrant, viz. that the Co J A. V, is an
able bodied man, who, r.ct hamny; wherewithal to maintain h'm-
felf is found loitering, and has a wife and children, wiihout means
for their fubfiftance: Thefe a~e themf jre to require j jm t<> be-
liver the f.«id A V, ro fome one of the ov tellers of the cor for
diilrhfl in this counpy; and you tic kid cverllvr are
hereby required to receive "he laid A V, and him <r> hire our for
the bell wages that can be procured, to be em.doted in labour
fur the Ipace of days, and the monies arifmg trrrhVnm to
apply to the ufes of the poor of this eoji.f-y. Given Ac,
To conllable.—And to (bme one of the cverfecrs of
the poor for dillridt in the county of
Verdi#, (See JURTS & JURORS.) ■
Waifs, (See LSTRAYS.)
W A R R A N T S.
I, Of warrants for debt, granted by afngle
ma/: f rate.
IL Of war ran is in criminal cases.
L Of warrants for debt granted by. a fingle
magidrate.
jyY Virginia laws, chap. 67. § 6. page 91, of the Rcvifed
JTj Code, 4 When the caufe aclmn fhall not exceed fivedol-
4 Jars, cr two hundred pounds of tobacco, the fame is declared
4 to be cognizable, and finally d -rermnntble by any one jtillice
4 of the peace, who may give judgment, and thereupon award
execution
44^ warrants.
4 execution againft the goods and chattels of the debtor, or party
4 again ft whom fuch judgment Ihall be given, which fhall be
4 executed and returned, by the fheriff or conftable to whom
4 directed, in the fame manner, as other writs of fieri facias,
4 are to be executed and returned, but no execution iliall be by
4 him granted againft the body of the defendant.'
In exercifmg the jnrifdidtion granted by the above adft, much
mud diptnd upcm the difcretion of the rnagiltrate. He fhould,
l.oweve:, always have it imprefted upon his mind, that as his
diciaon is final, too much circumfpe&ion cannot be obferved
in preduemg a fair and impartial trial.—Sufficient notice of the
tune and place appointed for the hearing of the parties fhould al-
ways be given, and procefs awarded to f'ummon any viimef.
fjs v.i i._h might be required.—And above all thing-, the ma-
g i it rate ihould difcountcnance a practice which now too fre-.
t'uertly prevails of harrafting the defendant by zppointing liie
place cf trial in fomc remote part of the county, and thereby re~
dewing hi to the alternative of either fubmitting to an imjuft
jud^ntc.u, (,r of defending himfelf at a greater expence than the
chjedl i:i controvtriy is worth.
IVor rant for debt.
Tj the ft. etiff of county, or to any conjlable therein.
Summon A Jr., to appear before me or fome other juftice of
this county, to anfwer the complaint of C L>, for the nun pay-
merit of due by account (or note as the cafe may be) and
then make return how you have executed this warrant. Given
under my hat id &c.
Summon A W, dec. vjitnefjesfor the plaintiff.
Special IVarrant.
As before to appear; [thenfay) before me at on the
day of next, by o'clock in the noon, to anfvver he.
The officers fees which may be taxed in the colts, are,
Cents.
For Frying a warrant 21
Summoning a witnds 10
Serving an execution, or attachment 21
7~he Grins of judgments are fo eaiily drawn that it feeois un-
needfary to infert any.
Execution for Its plaintiff.
The commonwealth of Virginia to conftable of
county, greeting: Yen are hereby commanded that of this
goods
WARRANTS.
goods and chattels of A D, late in your precindl, you caufe to
be made the fum of which B C, lately before one
of the commonwealth's juftices of the peace for the faid county,
hath recovered againft him for debt; alfo cents, which to
the faid B C, before the fame juftice, were adjudged for his
cofts, in that fuit expended, 'whereof he is conviftfc; and that you
have the faid debt and colls, before the faid juftice, the day
of next, to render unto the faid B C, of the debt and cofts
aiorefaid; and have then there this writ. Witnefs the faid
the day of in the year " and in the year
of the commonwealth.
Far the defendant.
As before to the fum of cents, which to A D,
lately before one of the commonwealth's juftices of the
peace lor the faid county, were adjudged for his cofts about .his
defence, in a certain complaint at the fuit of B C, expended,
whereof he is convicted, as appears of record, and that you have
kc. (as before) to render unto the faid A D, of his cofts afore-
laid; and thai you have &c.
Note —By the execution law (page 312. § 25) of the Revfci
Code, it is declared,' ' That nothing in that adt contained LTa'l
' be conftrued to extend ihe right of giving fecurity for payment
' of the money or tobacco mentioned in fuch execution at a fa-
(ture day, or, 10 have the goods forthcoming at the clay of file,
' to tne defendant or defendants, in any judgment or execution
' not exceeding five dollars.'
II. Of warrants in criminal cases.
&
The execution of a warrant may be feen unuer title 4 rfsre'
For a warrant to fearch for ftolen goods, See Seatth TVarram.
If a juftice of the peace fee a felony or other breach of the
peace committed in his pretence, he m>y in his own perftm an-
prehend the felon; and fo he may by word command any pe'lon
to apprehend him, and fuch command is a good warrant without
writing: 'but if the fame be done in hjs alfence, then he muit
illue his warrant in writing: of which i fhaii ftiew,
i. For what causes it may be granted.
ii. TV hat is to be di ne pre-iio us to thegt v; nthsg of ii\
iii. II'w far it it is grant a tie on suspicion.
iv. Fhe form of it.
4'5° W A' R R A N T S.
' iV For v/hat caufes it may be granted.
' TYere feerns to be no dcubt, but that a warrant may be law- •
fully granted by any jufticc, 'for treafon, felony, or any other
cftenre againft tSae peace: Alfo it feems clear that wherever a
ifotuie gives to any one juftice a jurifdiclion over any offence,,
or a p-'v^r to 'equire any p^rfon to do a certain thing ordained
by fuch fta'ufe, ir impliedly gives a power to every fuch jufticc
to make out a warrant to bring before him any perfon accufed of
loch offence, or compellable to do the thing ordained by fuch
{t?.fu*c, for it cannot but be intended, that a ftatute giving a
, perfon jurifji&ion over an offence, doth mean alfo to give.him
tne power incident to all courts of compelling the party to come
befoie him. z IHww 84,
But »n tafos where the common wealth is no party, or where
no corpood punifnracnt is appointed-, it (heme to tinac a fumuicns
is me more proper ptocefs; and for default of appearance the
juhice may proceed.
u. TVhat is to be dvncprevious to the granting of it.■
1 It is cwnvcr.i?nt, though not always recefffry, that the party
who demands t:w warrant be rrff examined 'on omh, touching
the vdtcr-. «.;atrer Whereupon the warrant is demanded, and that,
exeoMuvfon m t :i 'vffttng. 1 H, H. 582. 2 Iff. ifo ill.
Of at Is all if is fafe n m- d him over to, give evidence, left
afte" reards when the offender [bail be apprehended, or fh'.il fur-
render l.imfeh, the parfy that proem esi the warrant be gone.
2jalt* c, 1C9. . '
i:t. Thzv far it is grant able on ffp-cion.
It is the opinion of Hale and Hawkins^ contrary tojord Czke
(4 7/rtf, 177J that warrants for felony, may be granted by a
jullice of the peace on probable grounds of iufpicion:-—Yet that
they fhould be well fati.iftsd of the reajfonahienefs of the accufa-
tion. See 2 H. H. 107—iio. 1 EL H. 597. 2 Haivk 85.
But a general warrant, upon a complaint of robbery, to ap-
prebend all p'rfons ffpcSIcd, and to bring them before a juftice,
hath been ruled void; and falfe irnprifonment lies againft him
that iiiucs fuch a warrants 1 H, H. 580. '2 H. H. 112.
iv. CThe form cf it.
It fecms agreed that the place at which the v/arr.ant is made,
need not be expreffed in it, tho' it mull be alleged in pleading,
■ and
\V -A R fc A # T S;. 451
■and the county mpflhe' fytjprth in iTi rpyrgirp See Dal'. chip.
169. 2 H.;H. HI- 2 nawL 05. ; 7 . J . i ' ; ,c. :
, It may be direfbei to the ibc/iug ■ conf-T'e* -or to any -itjdif—
ferent perfon by i\ame who is no officer ^ .for thejufcice !Sivvy au.r
thorize any one to be his-o-Scer., vitom h2:,9l^i>>to;tnake;i«.ch;
yet it is moft adviieafcle to /belt it to the ,cot>ibab!e of.Uve'p^e'r
cincl wherein it is to be executed,,, for: that no,other ccaikbfe,
•and. 9, fortiori no. private .ptrvbii is £ompeilabk-i>> yU-f
Haio.fz. Da It.c. B; I
< 'But in the caloof an a-A of Afilnrrbiy, .-it. is faid, that if 'the
acldireCteth that a jultice-fhali gray** fi > ;. and doth- not
fay to whom it ftuli be directed, by,cqnfe^uoncc of ,li\y it rod'ft
be.directed to the, conlfable, and( it 3*0,1 tot bey directed to the
iheriiFjj .unlefe fuch..powcr is given in We-act,, f. -Raym. •* i
4381. ;,*f
Warrants may be .vsyioufly lliled, -as,. F,,1 In, the nam oof [the
commonwealth* .under t\ie telbe. of the'jwlckfc} :2>.; fa, the
of,the jaftice, himiclf; or,; 3; mvilhout-unv iriie, ; but only un;:ei>
the;hapdandfeal cf £he( jpljice. ' . ru ; - < .
e'^' -hm
.. : .."county to wit. ' • : . . 1 r ■ ., '1
- The. commonwealth of Virginia, To the fherifr of the laid
county, to the conltable of -•'■ ' yit the Aid county, add-to''alii
and lingular ;the common wealth's-oiHcer's' 'of julticc in the Aid;
county* greetings-ca r • •: ' " - ' . 11
Whereas A J, Of ' ' • ■ hath this day come he fere nie j I3,' a'
juftlce of the peace for the county afore/aidv -ahd hath made outT
that.A<Q,.of ' e-fsV.i [here fit forth the fabfiance of the ae-
cu&tion*) Thefe are therefore to require you to appr el-etui ihe'faid
A £), and bring him bsjOr.e'me, or jo me' other fuftice of the peace
for the faid county cf to anfwtr the p rendfep and fur: her to-
he. deaf with according to law. - Given -under my hand anfjeaHjc.
•Warrants are feldorn iifutid, in this State,-either in the name of
the'common wealth or of the jultice, 'but only under tiie hand and
lea! of the juftlce, as in that'part of the above foriii printed uii.aUcs.
Regularly the warrant, fefpccially if it be for tn •• peace or g<*od.
behaviour,' or the lfke, whine fufeties are to be ioaad or icqdh-
ed, ought to cor rain the Ipeciid cau'fe and meter '■vyh'eiVtsp <u it
is granted, to the intent that the party upon whom it it, to be
ftrvcfl may provide fiis lureues ready, and take theui *witi> nhfi o
the juftice to be bound for him 5 bet i.f the wa,run;! be for tree-
fon, murder/pr felony, or other capital oHcdce, or (or great
confpiracies, rebellious ailenibliSs, or the like, it hath been Aid,
that it ncedcth not to .contain apt fpeciul cvuil, but tryc warr ant
of
WARRANTS.
of the juftice may be to bring the party before him, to make an-
fwer to fiich things or matters generally, as fhall be obje&ed
againft him on the commonwealth's behalf. Dult. c. 169. 2
Haw. 8 s. 2 H. H. III.
But Mr: Lambard fay-?, every warrant ma da by a juftice of
the peace ought to comprehend the fpecial matter upon which it
proceedeth, even as all the commonwealth's writs do bear their
proper caufe in their mouth with them; and as for the form that
is Commonly ufed, to anfwer to fuch things as Jhall be tbjeftedy
ai d fuch like, they are not fetched out of the old learned prece-
dents, but lately brought in by fuch as either knew not, or car-
ed not, what they writ. Lamb. 87.
The warrant ought regularly to mention the name of the party
to be attached, and mult not be left in general, or with blanks
to be filled up by the party afterwards. 2 H» 114. Dalt. c. 169.
The warrant may iffue to bring the party before the juftice
who granted the warrant fpeciady, and then the officer is bound
to bring him before the fame juftice; but if the warrant be to
bring him before any juftice, then it is in the election of the
officer to bring him before what juftice of the county he thinks fit,
and not in ihededtion of the prifoner. 1 H. H. 582. 2 H. H. 112.
It ought to fet forth the year and day in which it is made, that
in an adtion brought upon an arreft by virtue of it, it may ap-
pear to have been prior to fuch arreft; and alfo, in cafe where a
ftatute direcleth the profecution to be within fuch a time, that
it mav appear that the profecution is commenced within fuch
time limited: Likewife, where a penalty is given to the poor
of the parifh where the offence fhall be committed, or the like,
it ought to fpecify the place where the oftence was committed.
2 Haw. 85.
Finally, it ought to be under the hand and feal of the juftice,
who makes it out. 2 Haw. 85.
But it feems that this muft be underftood of warrants iffued
for ofiences at common law.-—For where a ftatute diiedls that
a magiftrate (hall bring the party before him by warrant under
his hand) it does not appear neceflary that i: ihould be under feal.
WEIGHTS AND MEASURES.
r"w"!HE regulation of the ftandard of weights and meafures,
bcirg among the powers granted to Congiefs, the legil-
Jatuie of this commonwealth in the year 1792, palled a tempo-
rary adit, continuing the adt of 1734, for the regulation of weights
and meafures, till Congrpls fhall have made provffion on the '
fubjc-dl. See F. I. p. 2S8, of the Revijul Code. Wife.
W r F -E. ' • 4?3
HUSoAND and w'fe being confidered a? one perfon in law,
there are many points of ufeful information ariiing from
that principle, which defefve to be noticed.
Generally hufbhnd and wife cannot be witneffcs either for or
aguinft one another. S ee title Eviden-e* » * * '
Eb.it in feme cafes where the wif. is the pai ty grieved(he rrAy
be a with! L ag'dnft-her hufbanJ; as in demanding f.-o ■ he
fvAce; ir the cr.ie of a forcib'e abduction and ni.j/ir;;..-; 'v.1' e/e
the huib n.d was aceeiTorv to a rape on Lis wif:, eke. See tills
' E^lmcsJ 4 Su> c'y for ihe peace J and ' Rnfe.'
Af.er appe^ance and judgment agnir.ft a wnm?n as a feme
fcie, Hit: ihail not bring a writ of error and plcx.d that iae was
retried at the time of her appearance. See Sir# 8if.
A married wo nan may be indiited alone, for a felony com-
mined by her. See I Haivk. 2, 3. 1 H, i-1. 47. KE)alt. c. 157.
1 H 11. 516. 0.
A wife may be indikted together with her hufband for keep-
ing a bawdy houfe. *1 tl'iwk. 2. *
Where a married woman buys things neceflary for her ap-
parel, diet &c. without her hufband's content, it ihall bind Inni.
bee 1 Sid. 220. Allcyn 6n I Blacks. 442. - .
If tuehufband forbid particular per fobs to truft her he fhall
not be chargeable; but a general prohibition not to truft her,
as by putting her in a gazette, or the like, doth not amount to
legal notice. 1 Vent. 42. JVoodIs Inft. 61. 11
If the wife voluntarily leave her hufband and live with an
adulterer, the hufband is not chargeable with her contract:-,
even tbo' the perlon who trufted her had no notice of the elope-
ment. -See Stra. 647. Ibid. 706. Ibid. "875.
flut if, after the elopement, the wife returns and lives with
• her hufband, and he turns her away without further provocation,
he is liable tor her debts. Stra. 1214.
On a judgment aghuft hufband and wife, both may be taken
in execution. See Stra. 1167 Ibid. 1237. 2 IVUs. 149.'
W I T N E S- S E S.
matters in general relating to witnefTe% fee tide * Evi-
J|_ deuce *-—>Set a:)o Virginia laws, chap. I41. page 288 of
tiie Revjed Code.
The only cRules of the above a£t of AfTembly which oarticu-
larlv fall under the notice of a rvugiftrate are ji Si tons 11 St 14,
which authorize the cier^ cf the court in whicn a tust is depend-
i-'g
Hhh
454 WITNESSES.
ing to ifiiie a commiilion to take the depofitlons of witnefles
about to depart the country, or by age, ftcknefs or <aherih'je unable
to attend the courts—or where the claim-or defence or a material
feint depends on a Jingle witnefs, upon affidavit thereof, or on a
certificate that an affidavit has been made to that effedh
Certificate of a magistrate.
County to wit. To the clerk cf
fhis day A of pefinally appeared before me J P, a
yuflice of the peace for the cm >:'y of a for fid, and made oatb
that B W, t~bo is a witnefs for him in a fuit now depending in
the coat cf between the faid A L, plaintiff end C D, de-
fenda -t, is about to depart this country, [or by age, ficknefs or
otbcrwife, will be unable to attend the faid coutt, (as the cafe may
K) Given izc.
Certificate for obtaining the depofition of a
fingle material witnefs.
As before to made oath that he verily believes his claim (or
deftnce) or a material point thereof in a fuit depending in
between the faid A S, and C D, depends on the tejlimony of A
who, is a fingle witnefs to that fatd. Given &c.
Notice to take depofitions.
To Mr. C D.
Pleafe to take notice that on the day of next, be-
twten the hours of in the morning, and, in the even-
ing of the fame day, at the houfe of in the county of
I Jh ill proceed to t^he the depofition of B W, who is a witnefs for
me in a caufe now depending in the court of in which 1 avd
flaintijf and you are defendant.
A B.
W O M E N.
OF women confcWed as zvives or feme coverts; fee title
< iVifef—'laving two huiba."^, or in:n tw«j j fee
ti'*e 6 Bigamy—twrent rl clergy, ree tide 4 Clergy.*—the ra-
ViJkmcni cf woinc.?, fee tide * jioyef
By
WOMEN.
By Virginia laws, chap. 104. page 206'. left. 19. ©f the Re-
vifed Code, it is made felony to take away againft her will and
marry or defile any woman, having fubfiances in goods movea-
ble, or lands and tenements See.
Se&, 20. If any perfou above the age of 14 years take away
any maiden or woman child unmarried, being within the age of
16 years, from the poffefiion of, and againft the will of the per-
fon lawfully having the poffeffion of her, he fhall be imprifoned
for any term not exceeding two years.
Sedl, 21. To take away and deflower any fuch maiden as laft
aforefaid, fubjefts the offender to 5 years imprifonment, without
bail or mainprise.
Upon the ftatute of 3. H. 7. from which our aft of Affembly
is taken, the following observations have been made: 1. That
the maid, wife, or widow, have lands, or tenements, or move-
able goods, or be an heir apparent. 2, That fhe be taken
away againft her will, 3. That the taking was for lucre. And
4. 'I hat fhe be married to the mifdeer, or to iome other by his
co-.lent j or be defiled (rhat is carnally known) For if thefe
concur not, and b- fo laid in the indictment, the mifdocr is not
a felon within the ftatute, but otherwife to be ptzni filed* 3 laji.
61. 1 Haw. 110.
It is no manner of excufe, that the woman at firft was taken
away with her own confent; becauie it fhe afterwards refufu to
continue with the offender, and be forced againft her will, Hie
may from that time as properly be faid to be taken againft her
will, afe if (he had never given any confent at all; for till the
force was put upon her, lhe was in her own power. 1 Haw. 110,
Alfo it is not material, whether a woman ,fo taken contiary
to hwr will, be at Jaft married or denied with her own confent;
or not; if fhe were under the force at the time. 1 Haw. no.
In Fuiwccd's cafe, M. 13. C. it was refolved, tljat the wo-
man taken away and married, may be fworn and give evidence
againft the offender, who fo took fcnd married her, the/ fhe fee
his wife de fatio, 1 B. H. 661.
And this ftatute has been fleld t:> extend to a natural daugh-
ter. Str, 1162.
A woman quick with child, and condemned for treafon or
felony, fhall have execution rdpitdd till her delivery; and to &f•
certain the fadt, the iherift'fhall be commanded to impannel a
jury of matrons to try and examine her; but ihe ihali have this
privilege but once. 2 Hawk, 464.
Wrecks.i
WRECKS.
WRECK of the Tea in legal under (landing is applied to
far h goods, as after rhipwrecic at fea, are by the faa
cail upon the land, and therefore the jurifoi&ion thereof p-rtaineth
not to the admiralty, but to the common law. 2 InJ}. 167.
None rf thefe gonds which are called jetfam, (from being cad
into the fea, while (he fhip is in danger, and which there fane
and remain under v/ater) or thefe called jlotjam, (frc"> f]oa: ing
011 the fa 1 face of the water) or thofe cal'cd Itgun (whr n lie in
the bottom of the fea, but tied 10 a cork or buoy, in order t»be
found again) are to be eileemed wreck, lo long 2s tfa) remain
in or upon the fea, and are not cad upon tne land b/ the faa;
but if any of them are call upon the land by the faa, trey are
wreck, 1 Blacks Cam. 292.
S(.e j'\y c'nna lenrs. ch;p. 6 page 14, of the Re'jfd Cam,
for aty 0 1 n u ng c 0 m ,/ujjw ners of wreck tdc.
IN D E X.
INDEX
To the New Virginia'Justice, &c._
A.
Page.
ACCESSOR X- - 1
„ — in general I—2
, before the fact 2—4
——— after the fa£t 4—6
-— — —how proceeded againft 6—10
—,—.—-indictments agan.it io—f4
a D nx non. h—w
AYFRAY. 37
—- —-fupprefied by a private perfon J9
- ■ - ....... ■ -»»"by a conitable IQ—20
■— ■ — by a juK ice 20
puniihw.tnt of 20
—.^-.precedents for 20—25
APPEALS. 25
APPRENTICES. 25
___ ———who may be bound 26
— —.by whom bound. 26
— —ia what manner bound 26—27
——— duties of mafter &c. 27—28
. —-grievances redrelled 28
——— -adjudged cafes concerning 28—29
indentures of 2q 31
MiRAlG N 1V1E N T. 31"32
A R R E S T. " S2
——who may be arretted 32—33
„ —for what caufe 33—35
——.by whom 35—3^
———-the manner of '5® 4l
. —— proceedings arter 41
ASSAULT and BATTERY. 41—43
- ATTACHMENTS. • ^ 43
bonds, warrants &c» 43""49
ATTAINDER. 49
AWARD. 5°
* 'arbitrators who may be 52
arbitration
r N D E X.
award. Page
_ jnbpration who may fubmit to 51—52
———™«.what ma) be fuhmitted 52—*4
————she fever i kinds of iubmiflion 52—58
good or net 5 —\\i
——-umpire 62— 3
———— wfcat fhall be a breach of 65
-remedy for non per ^nuance of 63
___ o]eadir>g<; in 64
—— —relief <gdnff 6f—69
—forms of bunds, awards &c. 69—72
r.
bail. 72
——difference between bill and mainprize ^3
perl >11 mm srged wunout 73—;4
-—«.uho may be bailed 74
-v.ho may bail 74
—granting it impioperly 75
refufmg it 75
—— ex,~tffive bail 75
——mi) what civil anions required 75—76
-in what not 76
diredfed by mzgiftrafes 76—77
in fpecial caffs required 77
offences punillnble by imprifonment without 77—78
-recognizance of, in a criminal cafe 78
——-in 'he diflruit and county courts 79
ballast. 80
barratry. 80
— how punifhed 81
——-precedents for 81—04
bastards. . 84
— who iiia'l be deemed 84—86
proceedings againft the father of 86—90
—capacity to inherit 90
— concealing the death of 9?
Battery, (see aflauu)
Bawdy boufe, see lewdnefsj
Beeft (see fork &c.)
bigamy. 91
-indictments for 92
blasphemy and profanfness, 93
buggery. 93
■ indiCtments for 94-
burglary. 94—98
how punifhed 9^
precedent
INDEX.
Pt ?e
• preced^n^ f tr 98—101
burning houses.
-by the ffatu e ici—ic2
by the c« .nm-; 1 law J°-—""5
precedents for 103—104
BUYING of TITLES.
by the common law 104
by ftatute 104
c.
CARRIERS. 105—no
CATTLE. no
various precedents for regulating the 1 ^ ^ _
. . ... driving them through this Rate. \ * $
CERTIORARI. 115
Wrten gt agitable 115
>in what manner 116
the efre& of it 116—117
-the return of it 117-—118
CHEA'I S.
by the common law 113 — 120
-by ftatute 120—121
CLERGY, [Benefit cf] 121
by the common law 122
by feveral iiatutes 122—125
a hen be demanded 125
the effect of it 126
COIN.
felony without clergy to counterfeit 126
COMMITMEN V. 126
who may be committed and to what place 127
———- - form of commitments 128
-j*dlor lhall receive the p'ifoner 129
{hall certify the ccmmnment 130
dtlcharged 1
— precedents of commitments 120—132
CONFESSION. " 122
CONSPIRACY. ,
how punifihed 13^
JS5
CONSTABLE.
his fees 136
CONVICTS. n7
CORONER. 137
as a judicial officer in an inqueft of death 138—140
■as a minifterial officer 140
his fees Sxct
various
I N D E X.
Page
various precedents relating; to his office 140—14^
Counterfeits, (See Cheats, Clergy Ac.)
CRIMINALS, (proceedings againft)
———re arrant 146
—— fun.mens for a witnefs 14#
re ,gi izance i4S
■ rn.ita.uus J49
■warrant to fummon a court 14^
— reco'ii iz.mce of bail, when the prifener is 7
b u d ever to the next grand jury y *5°
-when he is Tent fcr trial to the diHiidt court ■ 150
«—»—bail before a judge of the general couit 151
— warrant for the prifoner's deliverance 152
——-mittimus to the difliidt jail
proceeding? by the fheriff in imprefiing horfes ^c. 1^4
■'warrant to convey a culprit from one county 7
to another
order of two juftices to imprefs a guard. a
Curfmg, (See Swearing)
Debt, (See Warrants)
Debtors afcovding, (See Attachment)
Debtors infolvent, (See Infolvents)
Deceit, (See Cheats)
DEQDAND. 15A—137
' Difrderiy-hcufes, (See Lewdnefs)
Diffrefs, (See Hems)
Doors breaking cpen, (See Arreft)
Dower, (See f orfeiture)
Dtivt^, (See Cattle)
Drunkcnnefs, (See S wearing,)
Duelling, (See Homicide)
E.
Frhrrce-y, (See Maintenance)
ESC WE.
■——by tte y->rtv himfclf jJ-g
uffi-red by a private perfon .
-yanoWer * -^g
— ..'hat in a voluntary and what a negligent j'ccy
*—retaking the prifoner , ;.,0
i.W.veen: for an dcv.ps ^ f
t :C tor
.vuv.thmcnt cf
— '-(capo warrants in.civil cafes'
—agfUP.il a criminal
— iniidmcnt for
En rays
INDEX.
I
Pase
ESTRAYS. 165
— what Hull be deemed 16f>
proceedings on taking up it)6
• adjudications on this lubjecft 167
■ precedents 168—its,
EVIDENCE.
in general 169—i~o
■ of written evidence 7; ^—176
evidence of witnelTes :7b— 1 Hz
procefs againft witncfies 182—183
manner of giving evidence 183
■ form of a bill of exceptions to 185
a demurrer to 186
EXTORTION. 188
pur.iihment of 188
■■ indictment far 189
F.
Falfe News, (See Barratry)
Falfe Token, (See Cheats)
FelocUfe, (See Homicide)
FELONY, MISPRISION &c. 189
mifprifion of *89
-theftbote 190
— ■ felonies by the laws of Virginia 190—192
Fe?ne Covert, (See Wife)
FENCES.
-—of what height they fhall be 192
. warrant to view a fence jqx
FLOUR.
various regulations concerning flour 393—197
precedents of warrants &c. 197—£1.9
FORCIBLE ENTRY and DETAINER. 199
■ what is a forcible entry and detainer sco
how punifhable by acRion at law 202
■ how by indictment ' 202
how by a juftice, fheriff &c. 203
how on a certiorari 2*?<p
how punifliable as a riot 205
various precedents 205—209
FORFEITURE. 209
FORGERY. 210—212
indi&meut for . 213
FORNICATION. 215
FRUIT TREES. 215
lit
G.
I N D E X.
G. P^Se
GAMING. 216
vdi >u? precedents 216—219
G'nod lehavicur^ (See Surety)
Grand Lai eevj, (e re Larccny )
Guird, (St--; CiiminaL)
H.
HABEAS COPTUS. 220—221
High Treafon, (See Treafon)
High-ways, (See Roads)
HAh-v:c)m?,ns (See Robbery)
HOGbT BALING. 22r
precedents 222
EOMiClDE. 222
jutrilruhle 223—224
bv misadventure 224—227
■ by felf defence 227—228
man daughter 228
murder 229—232
felf murder 232—233
indictments of various kinds 232—238
HORSE-STEALING. 238
precedents 239
Houfe-breaking, (See Burglary and Larceny.)
Hcnfe-burning, (See Burning)
HUE and CRY. 239—243
• Piecedcnts 243—245
HUNTING. 245
• precedents 246
Hijbandy (See Wife)
Idiots, (See Lunatics)
INDICTMENT. 247
——\M:ai- idiences are indictable 247
—:—limitation of 248
— Imw far ftveral offenders may be joined in 249
\vhtther mitrsefft s may be examined by the 7 2CC>
grand jury agamft the commonwealth. 3 ^
bow many witr.tfTes neeeffary in „ 250
—v- Lncisng: en indictment fpecially 250
-Turn of 251—257
INFANTS. 258—263
1N i' C LI M ATI ON. 263—2b 5
form of 265
inns, Innkeepers, (See Oroiaaiies)
lr.qu:fulon} (See Prefentment)
Infolverds
I N • D E X.
F,vre
1NS^T KNTS. 2,65—2(57
i . • .w/f, (bee Tobacco, Flour £ic.)
jail a-id jatnr. ^
biu'ch. 2: and pm ing 268
who fh-.11 hum mi, km pfng of 2b i
jailer rim-ilt receive pritCK ers 2oS
——-— how prisoners, iliali be maintained 208
———how pn'bners ill !i be restrained 26)
■ .■'•bow prisoners {hall be delivered 271
—„ t filers permitting efcapes
i. in criminal cales 271
ii. in civil cafes 272
what fhnll be an efcape 277—273
what ihall not be an efcape 273 — 275
— when the prifoner may he retaken 275—277
i—■ —-what remedy by action for an efcape 277—279
-irdi&ment for an efcape 27' )
JUDGMENT, ' 279—i So
JURIES and JURORS, 2S0
—who may be jur©rs id i
—how and by whom fummoned 20 1
challenge *f jurors
H, the feveral kinds of challenge 2S2—28 5
ii. when the challenge is to he made 2o§—2S6
v\ how the challenge is tried —287
*— demeanor of jurors 2S7 - 290
—-—«—indemnity and punifhment of 290—293
«— forms of challenges 293—2^4
ffnftijiabls Homicide, (See Homicide)
Landlord if Tenarf (See Rents)
Land-office, (counterfeiting the ie.d of 1
the regiiier < f > (See Felony)
I.and warrants, (dealing them j
LARCENY- * 295
—grand 293—3co
-petit < 301
— from the pctfoa 301
from the houfe soi—-y •"
—-vrious Precedents in 307"—3
LEWDNESS . 3°E~3C5
— ' ' .-indiRmcnt for 3° 5
XvibeL
I N V E X.
Page
LIBEL. 3®5—3°7
— -vho punifhable for it 307—308
—--—how puntfbable 308
-inJ.Bmeat for 308—309
LUNATICS. 3-9—311
————precedents for the removal of 5cc. 311—313
' M.
MAIM. _ 3T3—3*4
-iudielmcnt for 3x4—315
2/J.>n:n.r(See Bail)
MAIN riTvANCE. 3i&
—how ptmifhable 316
what is ch am party 317
how champarty is puni/habje 317
-of embracery 317—318
indictment for maintenance 318
MANDAMUS. 318—32f
M AK Ri AGfc S. ' 321
A Jo !'hrs, (See Apprentices)
(Sec Weights)
MILLS awd MILLER. ■ 321
rariour. precedents 322—323
i\vhfadvcnirjrp, (See Homicide)
MISDEMEANOR. ^ ' 323—324
Afifprifv'a oj felony, (See Felony)
Ah'.fn ifhn 0! treafrn, (See Treafon)
Mhtimhs, (See Commitment)
MU IT. 324—325
N. ' -
NUISANCE. ^ 225—327
—- how removed 327—328
-how pufji tficd" 328—329'
— indictments for 229—33b
().
OAT BS.
in general _ ^ 33°—33r
— —prefcrihed by acts of A {Terribly 331—332
of infidels 332
■what ceremonies ufed in {lead of . 333
ORDINARIES 333
various precedents 333—335
P.
f ARDON. 336—337
FAR n LION 337
gtfee, (See Surety)
Periurv
INDEX.
_ Page
PERJURY and SUBBORNATION.
by the common law 338—340
- ■ ■ by the a61 of Afttmbly 340—341
-indiftmeats for 341—343
PILLORY. 343
Pitch, (See Pork he.)
Polygamy, (See Bigamy)
Poijon} ( See Homicide)
POOR.
-various precedents 343—348
PORK, BEEF, PITCH, TAR, awd TURPENTINE,
-various precedents 348—351
PRESENTAiENT. " 351
PRISON BREAKING. 351—353
-indi&ment for 354
Prtjanenefs, (See Swearing)
R.
RAPE. 355
*—evidence on an indi&ment of 355—458
—punifhment of 359
•principal and accefiory 339
indictments for 359—360
RECOGNIZANCE. 360—361
■form of 361—362
RENTS. 362—364
the feveral kinds 364—365
■■■■■ - the remedy by diftrtfs 365—366
' i. for what caufe a diftrefs may be made 366—367
ii. what may be dift rained 368—370
Hi. at what time and plaoe 370—371
iv. reafonablc diftrefs fhali be made 371
v. manner of making a diftrefs 371
vi. how diftrefs to be demeaned 372
vii. refcous and pound breach 372
W/V. replevying the diftrefs 372—378
ix. faie of diftrtls 378
x. irregularity in the proceedings 373
xi. land-lord re-entering ' 374
xii. attorning to ft rangers 374
xiii. rent in cafe of an execution 374
xiv. recoverable by executors he. 3/4
xv. attachments for rent 375
, .form of attachment, bond he. 375—$7**
xvi. pra£Hca! directions for making diftrefs 376 — 378
.vwV.ferra of replevy bonds 37^
- of
n; d
-f the a<5x3on of pspEviir
A.
igs in replevin
RESCUE.
RESTITUTION of STOLEN GOODS
'RIOT, ROUT, and UNLAW F UL ?
ASSEMBLY. I
low retrained by a private per fop
—how by a peace oillcer
how by the e-ca of aiiembiy
—various precedents
RIVERS
DO ADS.
Various precedents
ROBBERY.
«r——vvln.t taking will conftitute it
——-from the prrfen
-——what Erall be Lis! to be .yiolent
haw robbery <uirtis from other larcenies
indidt meets for
RUNAWAYS.
■———magiftrates ceriff.rate for
S.
S4BBATIL ,
- warrant for working on Sunday
SCIRE FACIAS.
seamen.
SEARCH-WARRANTS.
-in what mantier to be granted
-how to be exec uteri
-proceedings after the return
-S:"ot of a iearch warrant
S.-'f ac rt nee, /
. ( See Homicide.)
o df ) J
SERVANTS.
SHERIFFS,
•———— baii bond to the fhcjhT
■how they Lkail proceed on executions
SLAVES.
—,'aitou3 precedents relating to this tide
—Sdsn(7, (See Bugger))
—s— Si oh" i y-Ar, (See Search Warrants, Rei
-bVrsy, (See Eflrapo
SUMMuNS.
Arm of
-— Utid*h (See Sabbath)
P*.V
37 3
379—3S0
380—^81
381—302
332—384
3jJ+
3°4
3'"4
335-3^
388
388—390
39°—395
395
395—39b
39^
39(>
397
397
398—390
399
400
400
400—401
401—402
4-C2—403
4C3
403—404
405
405—4-7
407—411
411
411—413
413—420
420—427
I tuition &c.)
427—428
Surety
index.
surety for THE peace, 429
when to be taken ex-ojjicia 429
for and againft whom to be granted 4^0—4^0
for what caufe to be granted 440—4:1
——in what mannner to be granted 431
how a peace warrant to be executed 431—.1.32
what iliould be the form of the recognisance 422—433
how a recognizance is forfeited 43'i~"-435
. how a recognizance E diicharged 43-—436
■ various precedents 436—439
surety FOR THE good behaviour,
—for what mifbehaviour to be required
for what forfeited
SWEARING.
Tenant, fSee Rents)
Theft, (See Larcesjy)
Theftbott3 (See Felony)
TifrHvg hctijc(See Ordinaries)
t.
TOBACCO.
— various precedents relating to that title
treason.
v.
vagrants.
warrant to apprehend
warrant to hire our
Verdidi, (See Juries & Jurors)
W.
Waifs, (See Edrays)
Warrants.
for debt granted by a Single magidrate
• in criminal cafes
i. for what caufe it may be granted
ii, what is to be done p'evious ro granting it 4.50
Hi, how far grantable on iufpicRn -5^
iv. the form cf it 45°—
WEIGHTS and MEASURES.
WIFE. 4:" 3
WITNESSES, _ _ 4S3~"-'io'4
certificate of a m agi fir ate to c.btai n depofitior.s of 44
form of notice to L:,ke depohtions 454-
WOMEN. 454- 45 5
WRLCRS. 4M
440
440—441
441—442
442—414
44.5
446
44
447
447
447—4 :;.Q
449
4 V>
APPENDIX N°- I-
TO T II 2
New Virginia Juftice, &c.
«
CONTAINING
FORMS of CONVEYANCING.
I ? may ttecefjary t§ apprize the fever at
'Gentlemen into whsfe Hands this Book may fall, that it
never was my Intention, by publifnirtg the following Prece-
dents, to fuperjede the Ufe of Counfel, in Cafes of Importance
or Difficulty. Theje are calculated principally for fuch of
our'Citizens, as have it not in their Power to obtain the Aid
of profeffional Gentlemen. To thofi, I flatter ntyfelf it will
be found a valuable Golleflion.—But in Conveyances, where
the Title to the laft Purchajer is to be traced backj through
various intermediate Pur chafers, and in many other in/lances,
it would bo unfafe to trujl to thefe Precedents,—which are
adapted to the mojl fimple transfers of Property : For it mujl
always be recollefled, that to copy a Precedent in a fair hand9
does not ncceffarily corflitute a Conveyancer;—but to be a pro~
ficient in that Line, a Knowledge of the Laws which regulate
Real Property is indifpenfably neceffflary.
RICHMOND: PRINTED BY JOHN DIXON.
A"o."1!*} Conveyancing, iii.
AGREEMENTS,
THE various objeils which may be comprehended under this ti»
tie* male it irapeffible to infert every form applicable to itI (hall
however', obfsrvethe requifites to moft agreements by our laws, (which
is copied frono the (tatuteof England of 29 Car. ii.^i in the words of
the law itfelf.—No aifion fhall be brought whereby to charge any
f executor or adminillrator upon any fpecial promife to anfwrer any
«l debt or damages out of his own eftate—or whereby to charge the
" defendant upon any fpecial promife to anfwer for the debt, default,
«' or raifcairiage of another perlon,—or to charge any perfon upon any
*' agreement madeupon con It deration of marriage,—or upon any con-
trail for the fale of lands, tenements, or hereditaments, or the male-
" ing any leafe thejeof for a longer term than one year,—or upon any
" agreement which is not to be performed within the fpace of on«
«* year from ihe making thereof,—uniefs the prorn'fe or agreement,
c< upon which fuch ail ion fhall be brought, or foroe memorandum,
t( or note tijereof Xhail be in writing, and figned by the party to be
cnatgea therewith, or forae-other perfon by him thereunto lawfully
authorized."— See Virginia Laivifch. 10,/>. 18^of the revifed code*
Articles of Agreement for the Purchafe of a
Pratt of Land.
J^\,RTICLES of agreement made and entered into this —;— day of
in the year —— between A. B. of &c. of the one part, a.td C.D.
of &c* of the other part Witnesssth, That the faid A. 8. for and
in confideration of the fum of — to be paid by the faid C. D. pur-
fuant to the covenant and agreement, of the faid C. D. herein after
mentioned, doth for hirnfelf and his heirs covenant and agree with the
f lid C. D. as follows, viz. th'nthe faid A. B. or his heirs fhall and
will before the —— day of — nextenfuing, make out a complete
title in fee-fimple to, and fby fuch fufficient conveyances, a3 the faid
C. D or his counfll /hall approve,! convey and aiTure, in poflellion to
the faid C. D. and his heirs forever, free from all manner of iacum-
berances, aii that trail or parcel of land lying See. (hert deferibe (be.
land particularly.)
AND the faid C- D. in confederation o£the covenant and agree-
ment herein before contained on the pai;t of the faid A. B» doth here-
by forhimfelf, his heirs, executors and adminifirators, covenant and
agree with the faid A. B. that he the faid C. D. his hpirs, excutors,
or adminillrators, fhall and will upon making and. executing fuch
conveyances and aflurances as aforefaid, pay or caufe to be paid to
the faid A. B his heirs, executors or adnainidrators, the fum of ——t
as-and for, and in full confederation for the abfolute purchal'e of tile
faid trail or parcel of land.
In Witness, See.
See Marriage Articles, Mortgages>
Articles. See Agreements• AT-
iv.
Conveyancing.,
f Appwpix
I No. i.
ATTORNEY. Powerscr Letters of
A Power of Attorney t ts receive and reaver tie
Rents of an Efiaie, rzW /<? difharges,
W all men by thefj prelents that I A. P-. of &c. have made
ordained, confhtuied and appointed, and by thefe pr' flmts do make,
ordain, conflitute and appoint A. B. ©f See. my true and lawful at-
torney, for me, and in my name, but to my vie, to afk, demand, iue
for, recover and receive, ail and every fuch rents and arrears of itnt,
as are now due and owi*g t° m" by or from C. L). as tenant or occu-
pier of a certain (here de/crtbe the property;) and tor non payment
of the fame rents, and arrears of rent, or any part thereof, to enter
and tiillrain, and the diflreftes fo tatcem to caufe to be d fpofed of ac-
cording to law. And upon payment of the laid tents, or arrears of
rent, or any part thereof, for me and in my name to g>ve acquittances
and difcharges for the famej and the monies lo by him received, im-
media'ely thereupon to pay over to me, or mv lypreiematives, or to
my order j and further to do and execute all and «verv othfi lawful
aft and ad's, needful for recovering, receiving and obtaining of the
faid rents, and arrears ofrentnow doe, or to grow due tor the pre-
miles, or any par'' thereof, but to my ufe as afcrelatd, as fully and
effeftually, to ail intents and purpotes. as if 1 were perlonally prefent;
hereby ratifying and confirming wha'.foever my faid attorney fhail
lawfully do, or caufe to be done in or about the premifes.
In Witnei6, &c.
By ebfer-ving the conftituent parts of the aio-ve Form, it may
be adapted to other purpofes.
2. Form of a Power of Attorney to transfer Stock of
the United States.
][vNOW all men by thefe prefents that r do make, conflitute,
and appoint < true and lawful attorney, for ■■ and iri -
name to fell, allign and transfer —— the flock, ft3nd|rg in —■
name in the books of—— with power alfo an attorney or aitornie?
under —— for that purpofe to make and ft,bflitute, and to do all
lawful afts requifite for effecting thepremifes : hereby ratifying and
cenfirming all that laid attorney, or fubflitute or lublti-
tutes lhall do therein by virtue hereof. In Witnels whereof have
hereunto fet —— hand and feal, the" day of-" in the year ■
Sealed and delivered*]
in prefencs of
■ l ' ■ ■■ ' f Witneffes, with their names,
m ■ ■ ■■ I additions, and refidence.
£5* See the mode of atteftation at the end of the next form (3)
T'be
Appendix!
No. i J
Conveyancing. y.
ATTORNEY. Powers or Letters of
The fall 'iv wg directions refpetting the atteflations^muf not be omitted
THE acknowledgment may be taken before any judge of the
court of the United States, or of a fuperior court of law or equity in
any lfate, or of a county court, or before the mayor or other chief
raagUtr.ic #f any place, or befoie a notary public.
IF there be no public or official fcal to the acknowledgment, proof
cf the execution of the power, muft be made by oath or affirmation
of one of the wiintffcs lobe taken before feme perfon duly authorized
at the place where the transfer is made.
3. Form of a Pozuer of Attorney to receive Inter eft-—
executed before a Magiftratex
j[S^NOW all men by thefe prefents that I of the county of
do make, conftitute and appoint my true and lawful attor-
ncy for me, and in my name to receive the intereft now due to quar-
ler ending the day cf in the year —— upon all the ltock
ffaniirg in my name iw the books of -■ ccmmiffioner of loans
ior the itate of ——, with power alfo an attorney or attornies under
him foi that purpole to make and fubfliiuie, and to do all lawful afts
lequifite for tffefting the pjemifes ; hereby ratifying and confirming
all that my (aid attorney, or his fubltiiute lhail do thereia by virtue
hereof. In witnefs whereof I have hereunto fet my hand and leal,
this day of in the ypar of cur Lord * ■
Seated and delivered inj
(seal. )
the prefence of us ]
______ ______ ( WitmeJJrs, ivho naiji annex their addi-
' < tiont as merchant^ fat mery attorneys
l&c. and alfo their place of refidence.
EE IT KNOWN, That on the — day of—— in the year
before me came - above named —— and acknowledged
the above letter of attorney to be his aft and deed. In leftimeny
wheieot I have hereunto fet my hand and feal the day and year lalfc
*foreffiid. fsedO
— County, to wit :
I ■■ clerk of the county aferefaid, do hereby certify that
» Efquire, whofe hand and feal is affixed to ihe foregoing certi-
ficate of acknowledgment is a magiftrate ef the county of 1"»
and that due faith and credit ought to be paid to ail his afts and
d-eds as fuch.
IN TESTIMONY whereof I have hereunto fet my
/Oficial\ hand and caufedihe fes! of my office to be hereunto
\ Seal. J affixed, this day cf —— in the year ——— and of
our independence the ——
4. Farm
vi. Conveyancing. {An"T*
ATTORNEY. Powers or Letters of
4. Form of $ 'Power of Attorney to receive an Inva
lid's Pen/ion.
J A. B'. of-—--*• county, ftate of do hereby corfti*
tute anc! appoint C. D. of nay lawful attorney to receive in my
behalf of my penfion for fix months, as an invalid of the United
States, from the — day of one thoufand &c. and ending the
——- day of of the lame year.
* Signed £? ftaled in preftmce ef
' ' jl Vitneffes.
Acknowledged before me ■.
BESIDES the letter of attorney afore faid the attsrney tnuji pn>
duce ike original certificate given to the penJioner by the flats, and an
affidavit made by him agreeable to the following form.
A. B. came befoe me, one of the juftices of the county of
jn the lfaie of and made oath that he is the fame A, B. to whom
the original certificate in his poffefHon was given, of which the follow-
.ing is a copy (the. certificate given by the [late to be recited,) Thatr
he ferved ^regiment corps orveifel^ at the time he was difabJed,
and that he now re fides in the-rr— ar.d county of -and has refid-
ed there for the laft —— years, previous to which he refided in ——
A W A R D,
An Award upon an order of reference.
W HEREAS at a court held for See. the ■ ' -»
day of la ft, a cuufe in the faid court depending, between
•A. B. plaintiff and C. D. defendant, by confent of parties,
was refered to E. F. G. H. and I. IC or any two of them to hearand
determine all the faid differences. NOW WE the faid E. F.
.G. H. and I.K. in purfuance of the faid order or rule of reference, hav-
ing heard both the laid parties, their allegations and anfwers touching
the matters in difference between them, and having thoroughly confider-
ed of the fame, DO AWARD, order and adjudge of and Upon the
"premiies, ia manner and form following, viz. FiRbT we do award
that the faid C.D. fhall pay or caufe to be paid unto the faid A.B. the
fum of ■ on the —day of —— next, at the heule of fitu-
ate in com mealy called —— between the hours of and ——
of the fame day : AND we do alfo award and order, that the faid
A.B. flv.il 1 upon payment of the laid fum of execute unto the
faid C.D. a general releafc cf the~matters to us rtfered, and that the
faid C. D. thaii at the fame time execute unto the iaid A. U. the
like releafe. In witntfs, See. •
(£5* FORother matters relating to awards, fee that title in the
fiody of the work. BAR-
Ano!T.ix) Conveyancing• viL
BARGAIN and SALE.
A Deed of Bargain and Sale from Hujkand and Wife
to the Purchajef. • 1
TP HIS INDENTURE made the day of in the year —
[and in the—>— year of the Commonwealth,] between A. B. and C.
his wife of Sc. of the one part, and D. E of &c. of the other part,
witnefleth : That the faid A. B and C. his wife, in cohfideiation of
—— of lawful money of this common wealth, to them in hand paid*
by the faid D.E. at ©r before the enfealing and delivery of thefe pte-
fentt (the receipt whereof is hereby acknowledged) HAVE bargained
and fold, and by thefe prelents do, and each of them doth, bargain
and lell unto the faid D. E. his heirs and afligns, a certain &c. (here
Aefcribe the land particularly-,) together with all [the Angular houfes,
dove-houfes, barns, buildings, ttables, yards, gardens, orchards,
lands, tenements, meadows, paltures, feedings, commons, woods, un-
derweoda, ways, waters, water courfes, fi/hings, privileges, profits
eafements, commodities, advantages, emoluments, hereditaments,
and appurtenances whatfoever to the faid ' " ■ ■>' • belonging 01 ap-
pertaining, or with the fatne ufed or enjoyed, or accepted, reputed*
taken, or known, as part, parcel, or incmber thereof, or as belonging
to the fame or any part thereof j) and the reveriion and reverfions; re-
ssainder and remainders, yearly and other rents, iffucsanl profits
thereof, and of every part and parcel thereoft TO HAVE AND
TO HOLD the faid * land with the tenements, hereditaments
and all and fingular other the prefnifes herein before mentioned or in-
tended to be bargained and fold, and every part and parcel thereof,
with every of their rights, members and appurtenances unto the faid
D.E. his heirs and afligns for ever, [to and for the only proper ule
and behoof of him the faid D.E. his heirs and afligns forever. J -AND
the faid A.B. and C. his wife for themfelves and their heirs the faid
——with all and lingular the premifles and appurtenances before men-
tioned, unto the faid D.E. his heirs and afligns, free from the claim
or claims of them the faid A. B. and C. his wife, or either of them,
their or either of their heirs, and of all and every perfon or perfens
whatfoever, fhall, will, and do warrant and for ever defend by
thefe prelents. In witnefs whereof the faid A.B. and C. his wife
have hereunto fet their hands and feals the day and year firffc abave
Written.
Signed, fealed and delivered ]
in the prefence of ]
IF the conveyance is made by an unmarried man, whatever r®»
lates to a wife in the foregoing precedent rauft be omitted. For the
fake of brevity, the words included thus [ ] in the fecond place, have
of late been omitted, and inftead thereof, after a defcription of the
land, the words with all andftngnlar the appurtenances, &c. have
been fubffituted. It muff be admitted, that in conveyances in this
country
viiL
Conveyancing.
/ Appendix
\ Nj. i.
BARGAIN and SALE.
eountry where it is ufual todefcribe the land by metes and bounds and
not merely by name, as in England, many of" thofe words are unne-
ceifary 5 as by a grant of the land itfelf thofc things by operation of
law pafs with it, (See Co. Lit. 4.. z.)—Bat it mutt alio be recollected
that the term appurtenances in its legal bonification is much teo lima-
ted to ce«prenend the various rights and privileges often intended to
be granted. fSee Co. Lit. 121. b.J—-For the mode of proceeding on
exanaiaing zfeme covert, or married woman, as prefcribed by our
laws. Se« Virg. Laws, ch. 90, § 6, p. 1C6 of the Revifed Code.
In modern pra&ice in England, injlead of the claufe of warr/vi-
ij their deeds are concluded -withcovenants which bind both the heir
and executor. or cdminiftrator Co far a<■ there are ajfets.—Tbofe who
prefer this mode may find a precedent under title Releafes, included
thus [ } which fee. See alfoin 1 Blacks Com. 304., the reafons for
giving the covenants a preference to a warranty.
BILLS of EXCHANGE.
The following examples of art Inland and Foreign Bill of Exchange,
drawn in conformity to the precautions recommended by Beawes
(Lex Mercatoria page 451) it is prefumsd will fujice.
An Inland BILL of EXCHANGE.
Richmond, February 8th, 1795*
Exchange for 10,000 Dollars«
AT figh", (or at —— days fight, or ■■■■■■ n days after ante)
pay to Mr, A.B. or order, Ten Thoufand Dollars, value received cf
him, and place the fame to account, as per advice, (or without fuf«
ther advice J from C. D„-
To Mr. E. F. Merchant
in Alexandria.
A FOREIGN BILL.
FredericPjburgy February Zih, 1795.
Exchange for £. i®,ooo fterling.
AT days after date (or at days after fight) of tfda
ffliy firft bill of exchange, (fecond and third of the fame tenor and date
not paid) pay to Mefs'rs A.B. & Co. or order, Ten Thoufand Pounds
fterling, value received of them, and place the fame to account, as
per advice. C. D.
To Mr. E. F. Merchant, London. To
A^PENmx} Conveyancing. Ix.
BILLS of EXCHANGE.
( If current money is paid for a Foreign Bill, then after the word
" Jlcr ling" add for - Virginia currency value here received.
By the laws or Virginia, '( tn all bills of exchange due in current
44 money of this Commonwealth, or for current money advanced and
** paid for fuch bills; thefiim in current money that was paid, or al-
u lowed for the fame, (hall be mention^ and exprefled in fuch bill,
44 and in default thereof* in cafe fuch bill (hall be protcfted, and a fuit
« brought for the recovery of the money due .thereby, the fulxi of mo-
" ney exprelfed in fuch bill (hall be held and taken as curreht money,
44 and judgment fhall be entered accordingly." See Virginia Laws,
ch. 77 §4 page 13 1 ...
By Virginia Laws, chap. 29. pag* 39, of the Re'Vtfed Code, fe£l. at.
44 If a biil of exchange, for the fum of five pounds, or upwards,
44 dated at any place in Virginia, drawn upon a perfon at any other
4t place therein, exprefied to be for value received, and payable at a
44 certain number of days, weeks, or rriofiths after date, being prefented
44 to the perfon, upon whom it (hall be drawn; (hall not be accepted
*4 by fubferibing his name, with hjs proper hand to the acceptance;
" written at the foot or on the back of the bill; or being accepted in
•4 that manner, and not otherwife,. fhall not be paid before the ex-
44 piration of three days after it fliall become due, the perfon to
44 whom it (hall be payable,- or his agent, of afligns, may caufe the
44 bill to be piotelled by a notary public, or if there be no fuch, by
44 any other perfon in preience of two or more credible witneffes,
^ for non-acceptance, is the form of to the effett following, written
" under a fair copy of the bill.
KNOW all Men, that I—-j oh the • ^ • day of ——,
at the ujualplace of abode of the abo<ve~named■ ■, prefented to
him the bill, of which the above is a copy, and which the faid' .
did not accept, wherefore 1 tbe faiddo hereby protefl the
faid bill. Dated at ——, this —- day of ;
44 Or for non-payment, after acceptance, in the fame form or tci
44 the fame effeft, except that the words 44prefented to him the bilf
44 of which the above is a copy, and which the faid did not
44 accept" lhall be left put; and inftead of them the words 44demand-
ed payment of the bill, of which the above is a copy, and which the
44 faid did hot phf be mferted : And,the drawer, fuch pro-
44 teft being fent to him, or notice thereof in writing being given to
44 him, or left at the place of hik ufual abode, within fourteen days
44 thereafter, fliall pay the money mentidned in the bill to the per-
44 fon entitled to receive it, with intereft, at the rate of five per cen-
44 ium by the year, from the day of the protefl j and he to whom
44 the bill fliall be payable, negleflihg to procure the protefl to be
44 made, or due notice thereof to be given, fhall be liable for all
44 cofts and tk mages accruing thereby."
Seft. 2.—44 If the bill fliall be loft, or fhall mifcarry; the drawer
44 fhall fign and deliver another of the fame tenor, fufficient fecu-
44 rity being given to indemnify him againft all perfbns who may
4i claim under the former." ■
B BOND
Conveyancing. {A™x
B O N D.
Know all men by thefe prefents that I A. B. of &c. am held
and firmly bound untoC. D. of See. in the fum of - — of
lawful money of this common weald),' to be paiJ to the fa:d C. D.
or his certain attorney, executors, adminilfrators or alfigns ; for the
true payment vvnereof, I bind myfelf, my heirs, extent >rs and adrni-
niftratois, itimly by theft? prefents, fealed witn siy leal. Dated the
• ■ dav of ' in the year ———.
The CONDITION cf the above obligation is fucb, that if the
abovc-boundsn A. B. his heirs, executors, or adminilirators, do
and fhall well and truly pay, or c-.ufe to be piid, unto the above-
named C. D. his executors, adminilirators, or aliigns, the lull lum
sf ■■' ■" — on the day of next enfuiiig the date of the
above written obligation, then the above obligation to be void, or
elfe lhall remain in full force.
Signed/ fealed and delivered]
in pre fence of ]
Where the condition of the bond is for the payment of money,
the fum exprefled in the condition is ufually half that of the penalty.
Bonds are alfo frequently entered into, conditioned for the per-
.formance cf covenants, Sic.
COVENANTS.
I'T will not fee necelfary to infrrt any precedents un«er this head,
as no fet form of words are necelfary to be made ufe of in creating
a covenant.
Any form of expreffion amounting to an agreement, if under
leal is fufficient. Doug. 737 .
GIFT. Deed of
A Deed of Gift of Perfonal Eft ate*
it
Jl\NOW all men by thefe prefents, that I A. B. of See. for and
' in toi.iiu oration cf the ratural love and alf <5lion which Ibearto C Dj
of 61c. as weil as for the further confederation of or.e dollar to me in
hand paid by the faid G. D. at or before the enfealing and delivery
of thefe prefents (the receipt whereof is hereby acknowledged) HAVE
* given and granted, and by thefe prefents do give and grant unto the
*faid C» D. his executors, adminiitrators and alfigns (here defcribethe
'propertyparticularly) TO HAVE and TO HOLD the faid -
' Unto him the faid C. D. his executors, adminilirators and afiigns for-
ever. AND the faid A. B. for himlHf, his execn'or.s pnd adminiiira^
Tors, the faid————unto the laid G D. his executors-, adminidra-
"forsshd aligns, sgainft the claim of him the faid,A. B. It's executors
and adminilirators, and againll the claim or claims, of ail and en*ry
perfbn or perlbns. whatfoevcr, fiialland wiij warrant end fvev^r da*
fend by thsm thefe prefents. Iu witnefs, See. LEAbEv
A no.Ki!x} Conveyancing.
LEASES.
A Leafe ofhoufe and lands fc? a term of years..
THIS INDENTURE made this day of —— in (he year
r-— &■ c. between A. B of Ac of (he one part, and C. D. of &c„ of
(he other part, wifneffeth, That for and in confideration of the rents,
covenants and agreements herein after relerved and contained, and
which by and on the part of the faid C. D. his executors, admini-
tfrators and aiiigns, are to be paid, done, and performed, he the f3id
A. 15. hath lea led, demiled, granted and to farm let, and by thefo
prefents, doth leaie, demife, grant, and to farm let, unto the Did
C; D. his executors, administrators and afligns, ALL tha£ Ac.
[htre defcribe the property"] with the appurtenances, now in t'he te-
nurc of Ac. [if there are any exceptions of parts of the dealt fed pre.
■mfss, as cf trees, pigeon-houjis, ere. they Jhould be here mentioned*
with a r^fer<vaUcn of free liberty of ii.grt/s, egrefs and regrefs, &c.]
TO HAVE AND TO HOLD the laid (except as before
excepted) unto the faid C. D. his executors, adminiifrators ar.d
afligns from the day of next enfuing the date hereof, for
and during and unto the full end and term of 1 years Ircm
thence next enfuing, and fully to becornplete and ended j YIELD-
ING and paying therefor yearly and every year, during tire faid term,
unto the faid A. B. the yea<ly rent or fum of ——- on the ——- day
of———in each year, by even and equal portions; the fir It payment
thereof to commerce on the day of next enfuirg ; [if there
arc any additional rents* here infert them] [PROVIDED always
and upon condition neverthelefs, that if it Ihall happen that the lhid
yearly rents hereby referved, or either of them, or any part of them,
or other the accalioral payments [rf any there are] fhaii be behind
and unpaid by thelpace of days next over or after either of
the days of payment, whereon the fame ought to be paid as afcre-
faid, being lawfully demanded; or if no fufEcient diflrefs can ba
found on the premifes hereby demifed, whereof to make thefatd rem*,
at the time when the fame Ihall be payable ; or if the laid C. D. his
executors, or adm.iniflrators, or any cf them fhail afiign over, or
otherwife part with this ind nture, or the premifes hereby leafed, or
any part there*.f. without the conlent cf the laid" A. B. his heirs cr
affigns, fi: ft had and obtained in writing under his or their hands urd
fials for that purpofe, then and in either of the faid cafes, it lhall
and may be lawful to and-for, the faid A. B. his heirs or nllijnt.,
into the premifes hereby leafed, or any part thereof, in the name cf
the whole, to re-enter, and the fame to have again, repofltff, and cr. -
joy, as in his and their firft and former tftatr, any thing herein to
the contrary contained nctwithllanding.] And the faid C. D. go'Ii
hereby fcrhimfdf, his heirs, executors Ac. covenant and agrfe to
and with the laid A. B- his heirs and afligr.s, that he the fai.S C. D.
his heirs, executors See. fnall and will well and truly pay, or caul'o
to,be paid unto the faid A. B. his heirs or afligns, the laid yearly
rent cf [and other 'additionalrents] at the days, times and
f>!acej and in fuch manner as are herein before appointed ILr payment
xii,
Conveyancing. {ANo!Trt
LEASES.
thereof, according to the refpefcHvs refervations thereof afore-men-
tipned, and the true intent ah# meaning of thefe prefents. And
that the faid C. D. his executors, adminilfrators and ailigns, fhail
and will a? lh<dr own proper colls aud charges, well and fuffielentJy
repair, amend, preferve and keep in repair the faid tenement, with
all houfes, fences, &c. thereto belonging during this prelent leafe
(accidents by fire, qr the a£l ef God excepted.* A"d alfo that it
fhall be lawful for the faid A. B. hi6 heirs and affigns, with workmen
and others, in his company, or without, at any time in the day-
titne to enter, peaceably on the derr.ifed premifes, during the faid term,
to yiew theftate of the reparations thereof j and of all fuch decays,
an.d want of reparations then and there found, to give notice to the
faid C, D. in writing, nr to leave the fame on the demifed premifes,
at.the moft cor.fpicuous place fiereon, to repair the fame wi'hin the
of ■ "■ ■ ■ ■■ ■ then next enfuingj within which tirqe the faid
C. D. for tyirtfclf, his executors, administrators and affigns, doth
covenai t and agree to repair and amend the fame accordingly, (ex-
qept as before xceptedj [hfrg t?ay folhyj other. covenants, as that
the landlrd, (hajjl fumtfb timber, <bc.—thai the tenant fhall plant
and preferve, fruit-trees—Jhall quI ivate the land, in fuch a particu-
lar manner—that the firaio, <&c.. made upon the land fhall be fed
upon it, and tb$ manure carried out and ploughed in—that the
tenant (hailpreferve ihe. pigeons in the dove houfes—not. to cut wobd
tut of apati cular kind. &c ] And laftly, that it IhaJI and may
be lawful for (he faid G. D. his executors, adminiltrators and affigns
(paying the r nts herein before relerved, and perfpriping the cove-
napts and agreements herein before mentioned or contained, and
which on his and their parts apd behalf? ar? or ought to be paid,
done, and performed) peaceably and quietly to have, hold, occupy,
poffefs and enjoy, the faid premifes hereby leafed, with the appur-
tenances, during the faid terra of ■ years hereby granted,
without any moleftation, or interruption whatfoever, of or by him
the faid A. B. his heirs ©r affigns, or of or by any perfen or perfons,
lawfully or equitably claiming or to claim, from, by or under him,
them, or any of them,
In Witness, &c.
NOTE—Leafes for lives may be drawn after the above form,
except in the habendum, the grant is to the leffee or tenant, his heirs
and pfigns, from the day of the date hereof, for and during the
natural lives of ■ ■ fuch perfons as may be agreed on betnx eea
the parties,
NOTE ALSO-—The words included thus [ } in the foregoing,
jpre cedent,*are not always infsrted.
For a Conveyance by Leafe and Rekafesfee Releafes. ^
MARRIAGE
£*pendix} £ onveyancing. xiii,.
■ ,*■■■■ II m I ——iMM*W——mmmrnmm|<*W—^ «
MARRIAGE ARTICLES.
./f/z agreement before marriage, that the intended hnf *
band and wife jhall each enjoy their own feparate
efi at es. An, affignment of hers (being perfcnai eft ate)
to the ufes in the deed. exprejfedt
t This INDENTURE tripartite, made the ^ v day of —--ir
in theyear between A. A. of . • of the firft part, B. B.
widow and relict of C. B. late of > ■■■ deceafpd, pf the fecond part,
and D. D. of and £. E. of -r—of the third part. Whbreas
a marriage is Ihortly intended to. be had and fplemnized, by the per-
miffion of God, by and between the faid A. A, and the faid B. B, '
and whereas the faid B. B. is poflefTed of a confiderable perfonal eftate,
confining of [fare particularize the property-t1 and whereas it hath
been agreed that the faid A. A. lhould after the faid intended marri-
age had, receive and enjoy, during the joint lives of them the laid
A A and B B th«j intend, and occupation of the faid perfonal eftate,
and alfo that the larr.e, and the intereft and prefits thereof, from and
after the deceafe of fuyh tf them the faid A A and B B as Should firft
happen to die, fhould be at the fole and only difpofal of the faid B B
notwiihftanding her coverture 5 ?nd whereas it hath been alfo agreed,
that in cafe the faid B B fhould after the faid intended marriage had,!
happen to lurvive the /aid A A that fhe fhou|d not have or claim any
part of the real pr perfpnal iftate whereof the faid A A fheuld be
feized or poflefied, or entitled upto at any time during the coverture
between them, by vir.ue of her dower or title of dower at common
law, or by virtue of her being adminiftratrix, or entitled to admini- »
firation of the goods and chattels, rights and Credits of the faid A A
or cthcrwife however. Now this inden ure witneffeth, that in purfu.
ance pf the beforereciteci agreement, and in cpnfideratipn of thefum
of jof. of lawful money of this commonwealth, to the faid B B in
hand pajd hy tl;e faid D. p, apd E. £. at and before the erfealing
and delivery of theft prefects, the receipt whereof is hereby acknow-
ledged, the the faid B B by and with the privity, confent and agree-
ment of the faid A A teftified by his being made a party to, and his
feeling and delivery of thefe p'efents, haih granted, bargaired, fold,
afTigned, trar.tfered and fet over, and by fhefe prefects doth grant,
bargain, fell, affign,' transfer and fet over urio the faid D D and E E
their executors, adminiftrators and afligns, all the faid [here mention
the property again."] TO HAVE AND TO HOLD'the faid pro-
pt rty h reby conveyed unte the faid D. D. and E. E. their execu^pr?^
adminiftratcrs and afligns; upon fpch Trusts neverthelefs, and to
and for fuch intents and purpofps, and under fuch provifces and
acreements as are herein after mentioned ; that is to fay, in truft for
the faid B. B. and her affigns, until the folemnization of the faid in-
tended marriage } and from and after the folemnization of the faid
intended marriage, then upon truft that they the faid D. D. and E E
their executors, adroiniftrators and afligns, fhall and do pcymit the
xiv.. Conveyancing, {An0eTix
. MARRIAGE ARTICLES.
faid A A during the joint lives of the faid A A and B. his infeedsii
\yjfe, to have, receive, take and enjoy, all the iniereft and profits of
the faid property Hereby afligned, to ar.d for his own ufe and benefit,
and from and after the deceafe of fuch of them the laid A. A. and
B. B. as fhail firft happen to die, then upon trull that they the laid
D. D. ar.d E. E. their executors, administrators and alfigns, ftali
aud do afiign, transfer and pay over all the faid property to the find
B» in cafe the lurvive the faid A. A. but if fhe die before him, then
tinto fuch perfon and perfons, and at the time and times, a*d in fuch
parts and proportions, manner and form, as fhe the laid B. LL Ihall
from time to time, notwithstanding her coverture, by any writing or
writings under her hand and feal, atteHcd by three or more credible
■witneffes, or by her Jail will and teflament in writing, to be by her
figned, fealed, pubiifhed and declared in the prefence of the JiRe nam-
ber of witneffes. direct, limit or appoint, to the intent that the fame
may not be at the difpofal of, orfubjeft to the controul, debts, for-
feitures or engagements of the faid A. A. her intended feulband j and
in default of fuch direction, limitation or appointment, then to &c,
{whatever perfons the parties agree upon ]
PROVIDED always, and it is hereby declared and agreed by
and between all the faid parties to ibefc prefents, that in cafe the faid
B. B. ffurviviag the faid A. A. her intended hufband) /hail at any
time hereafter claim and recover any part or parcel of the real or
perfonal eftate whereof the faid A. A. or any other perfon or perfons
in truft for him, /hall be feized ®r poffeffed or entitled un.o at any
time during the coverture between them, by virtue of her dower cr title
of dower at common law, or by virtue of her being adminiiiratrix
or entitled to adminiftration of the goods, chattels, rights and credits
of the faid A. A. as aforefaid, then and in that cafe, they the faid
D. D. and E. E. their executors, adminiftrators and alligns, /hall
from time to time and at all times from thenceforth Hand and' be
poffeffed of the faid property hereby conveyed in truft for the only
benefit of the faid A. A. his executors, adminiflraters and affigns,
any thing in thefe prefents contained to the contrary thereof in aay
wife rotwithftanding.
Jn Witness, &c.
M O R T G A G E S.
No. i.—A Mortgage of Land in Fee. *
HIS may purfue the form of a deed of bargain and fale, to the
end of the habendum, or that part of the deed which ascertains the
quality
See on the dottrir.e of mortgages general ty, an excellent ti earlfe pub-
lijhed. by John Jofeph Powell, Elq.—See alfo a very valuable note (i)
to Mr. Hargravehr edition of Coke on Littleton 105. a.—in whiji
HIr.Flar grave gives the preference to a mortgage for a term of years,
to amoitgage jnfee, with hisrezjszs for fuch preference.
Apn™} Conveyancing.
MORTGAGES.
quality of the eftate granted, by the words TO HAVE AND TO
HOLD, Sfc. then proceed,] PROVIDED always, and upon condition
that if the faid A. B. his heirs, executors or adminiftrators lhall well
and truly pay or caufe to be paid, unto the faid C. D. his heirs, ex-
ecutors, adminiftrators or affigns, the full and juft fum of ,
on the ■ day of ■ ■ next eni'uing the date of thefe pre-
fents, at " ■— in the county of ■ , then and in fuch cafe,
and at all times from thenceforth, thefe prefents and all the eftate here-
by granted and every claufe and fentence herein contained lhall ceafe,
determine, arid be utterly void to all intents and purpofes, any thing
herein contained to the contrary notwithftanding. [Here may follow •
fuch covenants as thofe contained in the next precedentt with fuch t>a~
tiations only as the difference oj the two eftates granted make necejfary.~\
In Witness, &c.
No. i.—A Mortgage, ly a Demife of HouJet &c.foy
a term of years.
THIS INDENTURE made the day of in the year
1—, between A, A. of &c. of the one part, and B. B.,of &c. of
the other part, witnefteth, That for and in confederation of the fum
of ef lawful meney of this commonwealth to the faid A. A»
in hand paid by the faid 3. B. at or before the enfealing and delivery
©f thefe prefentR, the receipt whereof he the faid A. A. doth hereby
acknowledge, He the faid A. A. hath granted, bargained, fold and
demifed, and by thefe prefents doth grant, bargain, fell and demife
unto the faid B. B. his executors, adminiftrators and affigns, all
thofe feveral mefTuages, tenements, See. [here particularize the houjf
<bc.3 with all and lingular their appurtenaaces, and the reverfion and
reverfions, remainder and remainders) revnts, iftues and profits thereof
and of every part and parcel thereof : To have and to bold the faid
mefTuages, tenements, &c. buildings, ground, hereditaments, and all
and fingular other the premifes, with their and every ©f their appur-
tenances, uat-o the faid B. B his executors, adminiftrafors and affigns
from the day next before the day of the date hereof, for and during
.thefull timSand term, and unto the full end and term ©f one thou~
fand years from thence next enfuing and fully to be complete and
ended ; Yielding and paying therefor, the rer.t of a pepper-corn, on-
the ■ — day of in every year, if the fame be lawfully demanded,
PROVIDED always, and upon condition; that if'the faid A. A. his
heirs, executors, or admkiftrators, fhall and do well and truly pay,
or caufe to be paid, unto the faid B. B. bis executors, adminiftrators
or affigns, at ■ in the county of —— th* full and juft fum
©f .i of lawful mon^y of this commonwealth, upon the f
day of —next enfuing the date hereof, then and in fuch cafe,
thefe prefents and the term and eftate hereby granted, and every
claufe and fentence herein contained fhall ce2fe, determine, and be
utterly void to all intents and purpofes, any thing herein contained
to the contrary notwitblianding. And the laid A. A. doth hereby
for
xvi. Conveyancing.
M O R T G AGES.
fcrhimfelf, hU heirs, executors and adminiftrators, covenant aird
agree with the fa id B. B. his executors, adminiftrators and aligns,
that the faid A. A. his heirs; executors or adminiftrators, thall an'd
will well and truly pay; dr caufe to be paid unto the laid B. 13 his
.executors; adminiftrators or afligns, the faid fum of ■ atfuch
-.time and place; as are .herein before mentioned. And further; that
it Stall and may be lawfuhto and for the faid B. B. his executors,
adminiftrators arid afligns; from time to time, and at all times frorh
and after default fliall happen to be made In the payment of the faid
•fum of " ■■ or any p'art thereof, contrary to the fotm'and effeft
of the aforefaid provifo and covenant ctf the fame; peaceably a'n'd
quietly to enter into; have; hold, occupy, poflefs and enjoy the faid
raefluages-or dwelling hoiifes; buildings, -hereditariieht3 an'd''prcartifB,
and to receive and take the rents and profits thereof; for and during
all the refidue which lhall be then to come and unexpired of the faid
-term of ope thou (and years, without the lawful letv fuit, trouble,
denial, evi&ion or interruption of or by the'faid A. A his heirs or
alfigns, or of or by any Other perfon or perfons whomfoever. And
it is hereby declared and agreed by and between the, faid parties to
thefe prefents, that in the mean time, and until default fliall happen
\o be rndde of or in payment of the faid film of —1- contrary
to the form dnd effedt of the aforefaid provifo and covenant for pay-
irieot of the fame, it (hall and may be lawful to and" for the faid A. A.
and his heirs peaceably and quietly to' have, hold and' enjoy all and
lingular the faid meffiiages or dwelling houfes, buildings', heredita'-
inents and premifes, and to receive and take the rents and profits
thereof, and of every part thereof, to and for his and their own ufe
and benefit, without the lawful let; fuir, trduble or interruption of
the faid B. B- his exeeutors, adminiftrators or afligns, or pf any other
berfon or pdrfoss lawfully claiming or to claim from', by or under
nina of them; or any of thenri. In Witness, See.
PENAL BILL.
No particular formfeems to be appropriated to thofe injiruments.—^
Any engagement to pay money under a penalty, will amount to a
penal bill-—as in the following example.
I PROMISE to pay to C.D, or order, One Hundred Dollars,
on or before the —— day of —— next enfuing, for the true
payment whereof I bind myfelf, my heirs, executors and admini-
ffrators firmly by thefe perfents, in the penal fum of Two Hundred
Dollars Witnefs my hand and fesl this — day of in the year —.
Tefie
A fingle bill is an engagement utider band and fealt to pay a fum
6f money, but without a penalty.——A promiflory note is an engage-
fftent to pay under handon^< without either feal or penalty,
RELEASES.
Appendix!
No. 1. J
Conveyancing.
xvih
RELEASES.
T,
A Conveyance by Leafe and Releafe.
I.—Leafe or Bar^aih and Sale for a Ye3i.
HIS INDENTURE truck this ■ — day of - in the year'
&c. between A. B and C his wife cf - of the one pait, and
D. E. of ' ' — ■■■ of the other part, wi.nefteth, That tbe faid; A. B»
and G. his wife, in conii kration of one dollar to tVitm ifi hand paid
by D E. at or* before the enfcaltng and delivery of thtfe prefents;
fthe receipt whereof it hereby acknowledged) and for other good
caufes and confederations, them tiu faid A. B. and C. his wife there-
to fpecially moving, .H AVE bargained and fold, and by thefe prefents
doandeachof them do'h, bargain and Ikl unt© the fsid L>. E. h:S
executors, adimniitrators and aifigns, ALL that &c. [here defcribe
the latia as i?: Bargain and Sale, which fee,'] TO HA\ £ AND T Gi
HOLD the faid tract or parcel of land, tenement#, hereditaments^
and all and lingular ether the? prernifes herein before mentioned or in-
tended to be bargained and fold, and every part and pa.ecl thereof,
with their and every of their rights, members and appurtenance!
unto th® faul D. E. his exfeu ors, adbtin.f;ra:.ors and alfigns from ttia
day next before the day of the date of th-fe preients, for and during
and unto the full end and term of one whole year from thence next
enfaing and fully to be comple ed and ended.
YIELDING and paying therefor .iirto tbe Lid A. B. and C. his
wife, and thetr heirs and atilgns the yearly rent of one pepper-corn at
the expiration of the faid term, if tbe fame Ih II be lawfully demand-
ed : TO THE INTENT and purpofe- that by virtue of thtfe pre-
fents and of the ifatute for trar.sfeiing urs into poffeflion thfc faid D.
E. may be in aftual pofTeffiori of the pfemifes'and be thereby enabled
to tabe and accept a grant and releafe of the freehold, rcverf.cn, and
inheritance cf the fame prernifes, and of every part and parcel there-
of, to thern their iie:rs and alligns for ever, as declared by another1
indenture in lend ed to bear date the next d3y after the day of the date
hereof. In Witr.efs whereof the parties to thefe prefents their hands
and iVals have fnhf. r.bed and let," the day and year fir ft above written.
Seal d and delve* ed] A. B- (L.S.)
in j,7 ifef.ee of ] C.B. (l s,)
A. B. &c. D. E. (L.s.J
i.—fhe Deed if Releafe.
[Which r.infl always bear date the day ajtcr the farmer lecfed]
1 HIS INDENTURE made the day of in the year
-, &jc„ between A. Li. and C. his wife of #. 1 of the ontj
par", and P. E. of the other part, witr.elTeih, That in eonfideration
of the fum of ■ ■- of lawful money pf this commonwealth to the
laid A. B- and C. his wifej in hand paid by the laid D. E. at or before
the cr.fealing and delivery of thefe prefer.ts, (the receipt whereof is
' ereby acknowledged. They the faid A. 15, and C. his wife, have,
G and
xviii. Conveyancing.
RELEASES.
and each of them hath granted, bargained, and fold, releafed and
confirmed,, and by thefe prd'tnts do, and each of thern do(h graut^
bargain, and fell reieafc and confirm unto the fiiid D. E. his heirs
and aifigns, all that &c. SJjere dtferibe the laud particularly, as in
the! leafe next above, and as in Bargain and Sale, which Jee.] (All
which laid premifes are bow in the a£lual poffeffion of the fa>d D. E.
by virtue of a bargain and falc te him thereof made by the laid A. B.
and G. his wife for one whole year, in confutation of one dollar to
them in hand paid, by the faid indenture bearing date the day next
before the day of the date hereof, and by fo:ce of the fiatute for trans*
fcring ufes into poffeffiond and the reverlion &c. [r.s in ike deed of
bargain and/ale.] TO HAVE AND TO HOLD the faid tra£l or
parcel of land, with the faid tenements, hereditaments, and ail and
fingalar other the premifes herein before mentioned to be hereby g'-ant-
ed and releafed, with their and every of their appurtenances, untsths
faid D. E. his heirs and alliens for ever, to and for the only proper
ufe and behoof of him the faid D, B. his heirs and alligr.s for ever,
and to and for no other ufe, intent or purpefe whatfoever.
AND the laid A. B. and C. his wife, for Ihemfeives, their heirs
and afiigns, the faid tra£l or parcel of land with all and Angular the
premifes and appurtenances thereto belonging;, unto the f3id D. E. his
heirs and a/figns, agiiinit the clairfr of them trie faid A.. 23. and C. his
wife, their heirs-and aliign3, and ag^ind the claim or claims of all
and every perfon or persons whatlbeyer, liiall, will and do warrant
and forever defend by thtfe piefents, [jAnd the faid A. F. and C.
his wife for themfelves, their heirs, executors and adminiftrators do,-
and each of them ddKh covenant, promife and grant, torand with the
faid D. E. his heirs and afiigns, in manner 2nd form following, that
Is to fay ; that notwithftand any a6V, matter or thing whatfoever by
the faid A. B. and C. his wife, or either of them, or any anceftor
thiough or fsom whom they or sit her of them clairft, or by any peifon
or perlcns chiming cr to claim from, by or miticr them, or any of
them, done, committed or wittingly cr willingly fullered to-the con-
trary, they the laid A. B. and -C. his wife now are and itand lawful-
ly, rightfully and abfolutely fcized in their demefr.e as of fee of and
in fud traft or parcel t f land,- of a good, lure, lawful, abfoiuie and
indeleafiblo efiate of inheritance in fefi-Ample to them and their heirs,
without any reverfion, remainder, truft limitation. power of revoc3-
tion, ufe or ufes, or any other matter, reltraint or thing whatfoever,
to alter, change, charge, revoke, make void, letfen, incumber or
determine the lame : And that notwithstanding any lucb aft, matter
cr thing as aforefaid, thty ihe faid A. B. and C. his wife now and ai
the time of enfeaiing and delivery of thefe prelents, have in them-
felvcB good right, full power and abfolute auihority, to grant and
convey the faid naif or paicel of land with its appurtenances unto the
faid D- B. hfs heirs and alligns forever, in mannee afcrefaid. And
alTo that it fhnil and may be lawful to and for the faid D. E. hisheirs
and alligns Irom time to time and at all times hereafter, peaceably
and quietly, td enter into, have, hold, occupy, pcffcis ar d enjoy the
faid
Appendix J C GllVCj anting. XIX.
RELEASES.
faid traft or parcel of I?,nd> ana to take the rents, iffues and profits
ihe'fot, drom and aficr (lis day of the date of tJufe prefents, to and
for his own ufe and benefit, without the lawful let, fuit, trouble, tie-
nial, eviftion or jnterrwpt ion of or by the laid A. B. and C. his wife,
their heirs or aifigns, or pt or by. any other perfon or perfons what-
foever, lawfully claiming or to claim any eftate. right, title, trult or
ir.tejrcli of, in, to or out cf the fiid traft or parcel of land, or any part
thereof, from, by or undrr, or iu truff far him, them or any of them.,
pr of anv of the anceflors of the (aid A. 13 and C. his wife, from or
under whom they claim j and that free and clear, and freely and
cleuly acquitted, exonerated and difcharged, or otherwife by the faid
A. B. and O. his wife, their heirs, executors or adminiftrators, wtll
and fulliciently hived, defended, kept harmlds and indernnifiad, c-f,
from and againft all manner of former and other gifts, grants, bar-
gains, iales, leaiies, mortgages, jointures, doweis, titles of dower?.,
wfe«, frufte, wills, recognizances, judgments, extents, executions,
annuities, rents, arreais of rent, and of and from and againft all and
fingular other cftatcs, tities, troubles, charges and incumberanccs
whatRever, had, made, done, committed, ccc&fioned or fufFcred bjr
the faid A. B. and C. his wife, or by any otherperfon or perfons, !aw«
fully claiming, from, by or under, or in truft from them or either of
them, or their or either cf their aft, means, affent, confent, privity or
procurement. And moreover, that the faid A. B. and C his wife, and
their hefrs, (hall and will from time to time and at all times hereafter
during the fp3Ce of ~~—> next tnfuing the date hereof, upon every
re-tenable rtqueft, and at the proper cofts and charges of the faid. D.E>
his heirs and afilgr.s, make, do and execute, or cauie to he made*
done and executed, ail and every fuch other lawful and reafor,able afts,
conveyances and affurances in the law, for the further, better, more
peifeft, and abfolute granting, conveying and afiwring of the faid
tract or parcel of J and, with its appurtenances unto the faid D E.
his heirs and afligns for ever, as by the faid D, E. his heirs or afligns,
or by his or their co*anfcl, learned in the law, fhall be reafonably ad-
vifed, or deviftd or required : So asCach further affurances contain
in them no furthtr or other warranty, or covenants, than agsvinft the
perfon or perfons, his or -heir heirs who fhall make or do the fame,
and fo as the party, who (hall be requefted to make fuch further affur-
anccs be not compelled or compellable, far making or doing thereof,
to travel above ■■ miles from his or their refpeftive dwellings or
places of abode."] In Witnefs. &c.
NOTE -—That pare of the foregoing precedent included thus [ ]
has beccme the modern praftice in England, in (lead of the claufe of
warranty.—It is however, hddom ufed in this country. Site a Black/.
Com. 304.
The above form may be applied to a conveyance by rtledfe alone.
When it is thus ufed, thefecond part only muff be attended to,and the
tecita's muft bring thiecafe within the description of forr.e qneof thofe,
to whivh fuch a conveyance is proper,—and rnutt alio omit whatever
relates to the deed of bargain and faie for a year. Sec thofe cafes Hi
which a rclea/e is the proper conveyance, in Black/, Com. j- vol. p.
324—and Co, Lilt, under " Rjlea/es." TRUST
XX.
Conveyancing.
j AfPIu tux
t Wo. i.
TRUST. Deed of
A Deed tf Ryu ft tofecure the payment of Delis.
TT*KIS INDENTURE made »1ie ■ ■ ■. day of •> ■ •■■■ the
•&c. between A. D. ol &c, of the one pait, and B. T. «1 etc. of the
other pa t WilntiTeih, Trat «.o® fnid D. in ord.j to Tcwre the
payment of the following debts, flute mention them particularly]
and in confideratjon of .he fum of one do i<+r to him in hand piid by
the faid B T. at or before the cnfealing anddelivr-ry of ihefe p-elents,
the receipt whereof is hereby acknowledged, TIE the fa*d A D. hath
granted, bargain*.J and fold, and by thtfe nrcte.^s.doth' g W, bar-
gain and fcil unto the laid B. *♦ . all that Szc. [Ittre def't^e the oro'
pet ty'] and ihereverfu-n and rev.ri'ons, remainder ard remai,.^ers,
yearly and other ran.s, iliurs and pioftts there f, and cf every part
and parcel the.eof, and alfo alj the efrate, right, the, intei-eft, truif,
pr -perty, chim and demand v/'n f.-ever, bat \ i- law and in rquifr,
■of him the Did A D« it-, to, or out o' the laid lands, Litem 'nts, h^-
reditaments, and pivnufes . J O LAVE AND I'O BOLD the laid
'{here iefcrfbe the property] herein before rrer.t onrd to be hereby
granted, will, .heir and eve.y of their ap^ur e< ct-ns unto rhe faid
B. T. his heirs, fxecu.'crs, adm;niiira'or> and aligns for ever ;
UPON TRU.iT neivr he'Itfs tint the Did IE 1 . fnali <<- form as con-
veniently he can faftc* having jdver'.il.d the time ann place cf»h" la!e
of the property before-»im, io ed, in jiitne public newfp per publ Ined
neareft to the refider.c • f t.-.e laid A D.) procet i to. fell the lame to
the higned biti.ler f<<r the bet price rIi-it can be obtained, and out of
the monies ariiing Lorn .he laie, in the firft p ace to pay and Litis fy
a»l reasonable charges attending fu h (e!e, and ti.en the d-'nts above-
mentioned, and the rclidue of th* n.. u.us anting ftorn fuch f.il as
arorefaid. totheufeof the faid A. D his executors, admmifLators
oraflfigns, or to'fadi ptrlbn o' perfans- rs h'e by writing under his
hard (hai'appoint, ai d in default of fuch appointment to li ch p?r~
fo i or p-rfons as would he thereto entitled by virtue of t: e Ifatute for
tliftribuMort cf inteftate's eftates. [Here map fch> v: covenants s if the
far net think proper, that the trrtfs hereby declaredjii a J ceaje on the
payment of the [enteral debts to Je curt: which the property ivns ton-
nteyed - For quiet enjoyment j—free from inciunberancts —and
for further ajfui ances—( See Releafts No. a.)
In Witncss whereof, &c.
W ILLS.
• A Will of Real and Perjonal Efiaie.
J A. B. of do hereby make rr.v I aft will and teftament
in manner and form f; lie wing, that is to fay :
J it.——I DESIRE tlrt all the perishable part cf my cftateheim-
mediately fold, ahcr my dcctrde, sr.d cgt of the motile•- ariiing
thue.rcra
An!Ni!x} Conveyancing.
r~ W I L L T.
therefrom, all my juft debts ar.d funeral exper.ces be raid. Should
the p« r". Ill able part of my properly pipve infufiicient for the above
puipofes, then I defire that my executors >}< hereafter named may
fell my hoof, s and lots lying on fireet in the town of —— ana
out cf the monies arifing therefrom pay and fatisfy fuch of my juft
debts as Ihall remain unpaid out of the fales of the perifhable part
cf my eftate.
a.lly—AFTER the payment pf my debts and funeral expences,
J give to jr.y wife C. B. cne third part pf my eftate both real and per-
fonal for and duiiog the term of. her ratura} life, and after her de-
c:-afe, I give *he fame to my children herein after mentioRed, equally
to be divided among them. 5 and to be enjoyed by them forever.
•jdiy.—I GI\ 2 to my Con D. B. all my lands in to him
and his heirs forever, . ,
o'.hly—-I GIVE to my fan E B. all my eftate f in the county of
5'hi> — I GIVE to my da'-ghrer F. E. her executors ard acmi-
j*tlta -rs Ten Thoufand Dollars, being paFt of my fix per cent flock
now {landing 10 my name in the books of - commillioner of
loans lor tne 'tine e.f Virginia.
6tr ly.-i-I GiVE to nriy daughter G. B. all the refidue of my
fix per Ccia hock, alfo ail ojher my funded debt of the United States,
p. j»itiii g in my name on the books of ■■« commifiioner cf loans
f^r the itate i.( Virginia.
71I.I}.—All the n fl of my eflate both real and perfo'nal, of what
namre or kji'd fccvcr is may be, not herein before particularly uif-
jr. fed of, I dyfire m?y b? equally d vided among-my feveral children
herein before pamcd. which I give to them, their heirs, executors,
admimftratcr? and afiigns fosever.
AND LASTLY—-I do hereby confliiufe and appoint my friends
II. B. and j. B. executors of this my iaft wiil ar.d tettamcnt,
hereby
dft-St'e Co. I Ait 113, a. as to the operation of law on a devife
to executors to ftH and a direction that executors fhali fell.
alfo in the fume Jo As, Note (2J a very valuable note by Mr, ffar-
.grave on that dijlinUion.
f See as to -what pajfes by the words *' eflate" cr <l efiates" 3
Mod. Rep (5 cel. by Mr. Le?chJ 45. and the cafes there■ cited, alfo
3 Com. Dig 4^2—426—as to the ivord " eftates" fee 0. Term. Rep.
.656.—"All my ctb/.e" pajjes evsry thing a wan has, Did. per Ld.
Mansfield in the cafe oj H'.gan and jackfcn- Cotvp. 306. See afo
2 Burr. 880.■ —See where a fee pajfes without ujing the aicrd
tllate. 1 IV ills. 133 1 have introduced the above ctaufe merely to
fhfw what conf.rutlions have teen put on fimilar devifes; not that I
think it wit Id be fafe to copy it as a precedent:—i! being a fixed prin-
eiple, that an /air at law'fall not be difinherited by the clearef /«•
ttntio-i appearing on the juce of the will, unlefs she efinte is com-
pletely dtjpoj'cd or io Somebody elfe - — See as to this point Ccwp.657
Derm ex dan Gafkin v. Gaikin.
Conveyancing.
/ APPEN DIJC
t JNo. I.
WILLS.
iherejby revoking all other or former wills or teftaments, by me here-
tofoteraade.
In Witness whereof I have hereunto fet my hand and affixed
pay feal this —■ - day of -■ in the year —-— &c.
§ignecl, fealrd, publifhed and declared as
and for the lafl will and tejlanzent oj
the above named A.B in pre fence of its '
To be attefted by two or more credible witneffes, i» the teftator's
prefence and by his dire&ipns, by Virginia JLqws (chap. 92. § 1}
page 169 of the reviled code.
As our aft of AfTembly differs in nothing from the ftafute of 29
Char. 2- chap. iii. § 5. except in the number of witneffes neceffary to
"atteft a will, (that Ratine requiring three) the following determina-
tions founded on that a<SV will not be improper in this place.
If the will be attefted by an infuf&eient number of witnefTe?, and
afterwards a codicil is made, which is alfo attefted by an Lfufficient
number, but the two together would make th? number required by the
fiatute, yet it is not a fufficient atteftation within the law. But if a
man publifh his will in the prefence of an infufticient number of wit-
neffi-s, and a month after he fend for others making in the whole the.
number required by Jaw, it will be good. Garth. 35. 2, Atk. 106,
It is not neceffary that the teftator fhould Jign the will in the pre-
fence of the witneffes, it is fuffieieHt if he azhzowledge the fignatore..
to them, though at different times, the ftalute requires atteitirg in.
the teftator's prefence, to prevent obtruding another will in the place
of the true one. But it is enough that the teftator might fee, it is
not neceffary that he fhould acluaUy fee them fign. therefore where
the teftator had defi.ed the witneffes to go info another rocm feven
yards diftance to atteft the will* in which there Was a window broken,
through which the teftator might fee them, it was held good 5 fo it the
!t?ftstor being fiek fhould be in bed and the. curtains diaivn. 3 P.
Williams, 254 aYtz 454. Salk. 688.
So Where the teffalrix went to her attorney's office to execute her.
Will, but being affhmaticai, and the offi.'e very hot, retired to her
carriage to execute it, the witneffes attending her; afier having feen
jtheexecution they retired info 'he office lo aitefi it, and the carriage
was put back to the window of the office through which it was fworn
by a perfon in the carriage, that the teliatrix might fee wh3t paffed.—
Immediately after the execution the witneffes tcuk the will to her,
which fhe folded up and put in her pocket, the will was held to be
well attefted. 1, Browne's Cha. Ca. 99 Cajfon v. Dfde
But if the wirreffes fubicribe their names to the will in a room
adjoining to that where th? teftator is, but out of his fight, it is not a
good atreftation. Gilb. Dev 93.
If the teftator is in a Rate of infenfihility when his will is attefted,
the \vill is not duly attefted according to the meaning of the ft a lute,
although he is corporeally prelcnr. Doug. 229.
It
appsndixI
No. i. J
Goftroeyancing.
xxiii.
WILLS.
It is not necelfary that the witntfleB fhould atteft in the'preftfflee
©f each other, or that the teftator ihould declare the inftruroehr he ex-'
ecuted to be his will, or that the witnefles Ihould atteli every page,'
loli© or iheet, of that they Ihould know the contents j or that each'
folio, page or Iheet Ihould be particularly Ihewn to them, and if th&
teffarcr never executed the firft Iheet. if it was in the room at the timtf-
of the execution of the fecohd, it is fufficient. 3 Burr 1775.
Signing need not be by writing the nafne at the bottom, it id
enough if the will be of the teftator's. hand writing, and begin with f
J B Stc. 3 Lev 1.
With refpeft to tli; revocation of a will the following deferminfl-*
tior.s have been made.
A will revoked by a fub fequeht will, but not cancelled, id re elfa-
tlifhed by cancelling the fufequent will, 4. Burr. 114. Doug 41.
Where thsre arc duplicates of a will, one in the teftator's cuftody,
the other not ; the cancelling the one in his cuiiody is an effe&ual'
cancelling of both. Cowp. 49, Doug- 41'.
If the tellator flightly tears his will, and throws it on the fine witK
& deliberate intention to confume it, and it falls off and is preferved
without the teftator's knowledge or confenr, 'it is revoked, 2 Bladkf.
Rep. 1043. 1-^——Any implied revocation of a will may be rebuttecf
by parol evidence. Doug. 38.
Marriage and the birth of a child amount to a revocation of a'
man's will, if it is of all his lands ; and a woman's marriage is alore
a revocation of her will. 4 Burr. 217. Doug 38.2 Term. Rep;bS%.
Any alteration or new modelling of the eftates deyiled, is a
revocation. 3 Atk. S03.
AS it is ufua'l to begin the preamble or introdultory part of ar
will with more fo'crrtnity, than is obferved in the foregoing precedent j
—for the gratification of thofs who wifh to indulge them felves in this
kind of devotion, I have added the following :
IN the name of God. Amen. I J. S. of thfe county of ——,
being lick and we^k in body, but Of found mind and difpofing me-
mory (for which I thank God) and calling to mind the uncertainty of
human life, and being defiroust© difpofe. of all fuch worldly eflate jfe
as it hath pleafcd God to blefs mc with—I give and bequeath' the
fame in manner following, that is to fay. I give&c.—Item. I give&c,
(h: ts infer I the federal Iegaciti agreeable to the intention of the tejldtorJ
Before I clifmifs a fubje£t Co generally ufeful to the coramurity,
as the doSrine of devifes, particularly of lands j I think it neceffary
to caution the public againft a pra&ice which too frequently prevails
of intruding the difpofition of their property, by will, to perfons
wholly
ip See as to the ufe which is made ef the introductory words of a
will in explaining the intention of the teftator, in Cowp. 299. Hogan.
ire. v. Jackfcn, and the cafes there cited —Cowp. 352, Lo<v.eacres ex
den, Lludgsy Blight it ux.—Cowp. 657. Denn. ex dem, Co fain v.
C a pin.
xx i v.- Conveyancing.
WILL S.
wholly unacquainted with the legal operation of the words made ufc
of in fwch difpofidon. For although the courts will r«fort to every
mode of confirts&ion to carry into effect the intentions of the tefta-
tor, as appears by the cafes before referred t© under this title, and
many others which might be enumerated yet, if it cannot be col-
le&^l from the whole of the will taken together, or from fome ex.
predion# made ufe of in it, that the eftate is completely diipofed cf
to fome other perfon, the heir at law will inherit, notwithstanding
the teftator evidently meant to exclude him by giving ferae fu;all
pecuniary legacy.—A remarkable in/lance of this kind we have in the
c_afe of Denn ex (Jem. Gafkin v G'a(k'm, reported in Cowper p. 657—
where the teftator devifes thus: "sis to allfuch worldly eftate as God
" has endued me with, I give and bequeath as fellows. 1 give
(( and devife All thai my freehold mejfuage and tenement lying in G,
V together with all houfes &c. and appurtenances whatsoever be-
44 longing to the fame, to MR, G R, and T R, equally. And
" among other pecuniary legacies* he bequeaths ten (hillings to his
" heir at law." Here though it is apparent the teftator intended to"
difinherit his heir at law (having no other land except that devifed,.
ard giving but ten fnillings,) yet, as no limitation of the eftate to
the devifees M R, G R, and T R, was either added to the devife, or
could be colJe&ed from the will it was held they took an eftate for
Jife only, and the heir at law recovered. ■' -
In the firft precedent under this title I have endeavored, by in-
traducing various modes of expreftion, to (hew how far the law has'
difpenfed with technical words in favor of the intention of the teftator.
——But I would, by no means, recommend a reliance on the iudal-
gence of a court, whofe- decilions may vary, (even after extending
thf utmoft latitude allowed by the law in favor of the devife^ ma.
teuslly from the real intention of the teftator.——It fhould, thire-
fore, always be a fixed rule to afcertain by fome mode of expreffion
ike quantity and quality of the eftate devifed. Technical words it is
true, are not necelfary in a will ; but where they are . not ufed, fome
words of limitation muft be added, otberwife the law pr^fumes the'
teltater meant to convey an eftate for life only, and the heir at lay?
Will inherit.
See the cafe in Cowper 657—^0 Cowp, 23S.
APPENDIX N°- II.
TO THE
New Virginia Jufticeyhz>
CONTAINING
The DUTIES of a JUSTICE of the PEACE
ARISING UNDER THE
LAWS of the UNITED STATES. ...
1 RE jurrfdi£l?bn of a Juftlce of tfie Feace in oftenccs committed
againft the United States, is aufhorifed by an a£t of the iji fejfiou cf
1he \fl CongreJ}, chap. 20. § 33, which enacts, " That for any crime
" or offence againft the United States, the offender may, by any Juf-
*' tice or Judge of the United States, or by any Juftice of the Pease,
' or other magi.'lrate of any of the United States where he
" may be faund agreeably to the ohial mode of pregrefs againft often-
tiers in fuch ftate, and at the expenceof the United States, be ar-
*' lelied, and imprifoned or bailed, as the eafe may be, for trial before
" fuch court ut the United States as by this ail has cognizance of
*• the offeree : And Copies of the procefs ihail be returned as fjjeedily
" as may be into the clcik's office of fu'ch court, together with the
<l recognizances of the wiineffes for their appearance to teftify in the
e> caff; whicis recognizances she; magiflrate before whom theexami-
"nation (hall be, may require on pain of huprifonmeEt j And if
" fuch commitment of the offender, or the witneffes (hall be in A
" diftiide other than that in whibu the offence is to be tried, it ihail
" be the duty cf the judge of that diilrict where the delinquent is im-
"• juifoned, ieafonaid / to Iffue, and of the mar/hail of the fame dif-
,l tri£l to execute, a \V arrant for the removal of (he offender, and the
" witntffis, or either of them, as tlie cafe may be, to the diitriil in
" which the tiral is to be had. And upon all arrefts in criminal
" caffs, bait mull be admitted, except where the puniihmcfit maybe
" death, in which cafes it ihail not he admitted but by the iupreme or
" a circuit court, or by a juftice of the iupreme Court, or a judge of
a diftrffft court, who lhali exercife their difcretron therein, regarding
" the natuue and circumftances cf the offence, and of the evidence,1
" and the ufages of jaw. And.if a peripn committed by a juftice cf
" th<' iupreme or a judge of a diftrifl court for an offence not punifti-
fi able with death, ihail afterwards procure baii, and there be ino
" judge of the United Staff's in the <J;llri<Sl to lake the fame, it may be
l< taken by any judge of ;he fuprcme', cr fupcrjuf cuuit of law of
ts fuch hate.*'
A BY
Duties of a Jufiice { A^0r;'aD,:*
LY rhe ninth ft&ion of the above reci'ed lew, the diftrift courts
of the United States,-have, " txclufivtly of the courts of the (cveral
*s fiatt.8,' cogtii^ic.'-e of ail crimes and ofiVnces th.v. (hall be ccpnizx-
et ble v.nder"the authority of the Urdu J Stater, ccinr.-f-d witiitn
their rcipeftive difirifti, or upon the high least} where no other
" pim;,foment than whipping, not exceeding thirty ftripes, a fit e not
*'• exceeding or.e hundred dollars}, or a term of imprifonmcrttnct ex-
cceding fix months is to be intlifted.'' ,
BY the i ith fc&ion, the circuii ceurts of tihe United States have
w excJufive cognizance of all crimes and offences. cognizable under
" the authority of the United States, (except where it is cthtrwife
4{ direfted by the faid ait or the Jaws of the United States otherwife
«•' provide) and concurrent juilldifttoR with the diftrift courts of tha
crimes and offences cognizable therein."
Accejjaries. See " Piracy
AMBASSADORS.
J3y the laws of Iks United. States, i ji Cvngrrjs, tdftffioiJyfeB. 25=
u If any writ or precefs ftaii at any rime hereafter be lued fo«h cr
w profocated by any perfon or ncrfo'nSj in any of the courts of the
i( United States, or in any of the courts of a particular fir.te, cr hy
f* any judge or jufiice therein rt Iptftiveiy,' whereby the perfon of any
u amb.if.dcr or other pubbc tniniftcr of <ny fofe'gn prince or ftate,
" nuthorifed and received as fuch by the PrefiJent of the United
States, or any donivftic ordoinrftic ftivant of afty fuch aixbaffador
e< or oilier public tnmufor, fnay be arretted or impr.fcned,' or his or
,f iheir geeds or chattels be dittrained, feized or attached, fuch writ
** or proeetis fiuii be deemed ar.d adjudged to be utterly null and void
ii to all intents, conftruftion :tnd purpi.-ies whailbever."
Sett. z6 *4 In cafe any perfon or perfons fliall fur foivli or pro-
'* feifote any fuch writ or nroctfa,- fuch perfon or perfons, and all at-
tcrnrcSor IblicitorS proftcufitfg or foliciiing in fuch cafe, ar.d a!!
•* f-iTictrs executing any !Uch writ or juocefs, being thereof convifted,
thall be dftmrd vtolaters of the laws of nations, and difiurbersor
i{ the -ui.lic rspcfo, and imnrifoned not exceeding three years, and
41 fined at the dilcrerion ot the court s Provided^ That no citizen or
** ir.habitai-t of tliu United States, who foail have contrrfted debts
i{ prior to'hfo enter tip into the lerviceof any atnb'afl&dor or other public
<k o.i..>tfor, wh.ch del ts fliall be ftill due and Crrpaid, fhali have, take
'> cr receive any benefit cf this aft; nor fliall any perfon be proceeded
" ag&inlt by virtue or this aft, for having ai relied cr fued any other
ei cfornellk: for taut ui .>ny ambxJl'adcr," tin els the rnxe cf fuch fervar.t
" be firfi registered in the cfiioe of the fecretary cf ftate, and by fuch
•' fo.cretsry trar.frnitt; d to the rnurfoali of the ciitliift in which Con.
<i grels lhali iclide, who lira.'! »»pon receipt thereof afHx the fame in
" lome public place in t,is chice, whererc a'! perfons may refort an t
«• take c-opits Without fee or reward "
Sr.l. 17. " If av.y p::fon foall viclat; any fofe condrift or pa/1 •
*•' ^ rt d ^! y cb:n:-:ad ar.d 'livv.l under the aulr.vi'ty of the United
A No2W2niX} U1:&* lbs Laws of the United States, (j)
AMBASSADO R "sT*™
S Stitee, or /hall afiiuilf, ftrike, wound, imprifon, cr in any other
'• manner infradt the Jaw of nations, by offering violence to she per-
44 ion of an air.halFador or other public rainiuer, luch ptrlon fy
* ©trending, on convidlion (hall be impriioned not exceeding three
44 years, and fined at the difcreticn of the court.'*
BAIL. See the fir ftpage of this Appendix*
' ~~R~rir l h y, ~
Ry the laws of the UniiecfSt'afss, jfl. Cottgrefs, \fi fefim, chap.
;o.Jedl. 21. 44 It any perron fiiali, dite&lv or in dirt (illy, give any
" fum or fums of moncv^ or any other bribe, prclent or rtwr.rd, or
44 any pronnle, contiael, obligation or feeurity, ior the payment cr
" delivery of any money, pnfem or reward ,cr any othci thing to obtain
*' cr procure the opinion, judgment or decree ©f any judge or judges
*- of the United Stat s. in any fuit, controvei fy, matter or caufe de-
44 pending before him or the.-n, and ffrail be thereof convickd, fuch
44 perfen ?r ptrfuns to givi*g, promifing, contracting or Iteming to
44 be giv^i, paid 91- delivered, any fmvj cr fums of money, pittsent,
5* rsward'or other hi ibe as aloieUid, pnd the judge or jodpts who
*' IhalS in any wife o.:cept or receive the fame, on corvidliou thereof
41 fftall be finel and impriloned at the direction of the couit, and fhsii
44 forever be difqualified to hold any office of honor, truff cr prciit
" under the United States."-.
TBI", penalty for bribery in an officer cf thccuffoms is 3 fire-not
lefs than two hundred dollars, or more than tv o thoufand, and .be
fame in the pet ion giving the bribe. See tails of the Uiiited StaUj, j
Cong, chap 3 § fe£l 66.
, —^ "C Q~1
The following table of coius as effabliffred by a£l of Corgufs, is
fcle&ed frcp the lavs of the Uni.tcd States, a Cohgvefs, 1 fejjiou tkr.p
j'6. 5 9.—1 lie penajry for counterfeiting coins m;y be teen urd.r?
' cohe in the body of this work.
Denominations.
Vaiue' Weight inJlmniai a m
( Ragle
Gold < Half Eagle
C Quarter Eagle
f Dollar or Unit
I Half Dollar
Silver-^ Quarter Qolat
) Dilmcs
i^Half Difmes
Cent, -
Propotional Vc,
Sandard of Golt
Slajidat d of Sii
*
10 mills make j Cer
; 0 dollar*
5
A Spanirh milled do)
Half a dollar
one fourth a dollar
one tenth a dollar
one twentieth ofdol.
one hundredth of dol
Half a Cent
due of. Gold to Silver
i coin, is i* parts fin
her. is 1485 parts fi
TABLE OF COINS
it —10 Cents i Difm
270 Grains
idS
67 4-8
4-r 6
a-"8
104
4-t 3-5
*'>4 5
2cg
1C4
is, 15 to
ie to 1 alloy,
ne to 179 alloy.
e—loPifmcsi Dollar"
(4)
Duties«/ a Jufiice ■
CLERGY. Benefit of
J^Y the larvi of the UnU^l^tiies, T Ceng. t feff. chap. xo. fee 30,
*f The benefit of clergy /hail not be ufed or allowed up or. conviction
f* of Wny crime, For which, by any (lafute of the United States, th^
•* puni/hment is »r fhtll be declared to b* death."
Dijfeflion of dead bodies, See Murder.
d y t 1 e s.
33 Y the Uzi's eftbe United States, 1 Cong. I feff. chop. 35 fee. 4$
(aft*r giving to every colle&or, naval-officer, and furveyor,!power ta
enter on" board any veffel, in which it is fufi>e£fed dutiable goods are
concealed) it is enadfed, that *' if they /hall have caufe to fuRjeft a
" concealment thereof in any particular dwelling heufe, ftore, building
v' or other place, they or either of !h»in fhall upon application on oath
*' to any juftice cf the peace, be entitled t* a warrant (a) to enter fuch
" houfie, ftorc or ether place (in the day 'time only^ and there to
** fearch for fuch goods, and if snv (hall be found, to feize and fmire
'* the fame for trial; and all fuch gocjds, v/are,s and merchandise, or
44 which the duties /hall not have been paid or fecured, lliall be forfeited.
{a) Warrant iofearch for concealed goods}fdjc fl to duly,
Statf of ——— io wit .*
"Whereas a.S. furveyor of the revenue at , hath this
day made oath before me J. P, a juSice of the peace for m the
fiafe aforffaid. that he hath caufs to fisfpetft fundry goods, wares ..'id
merchandizes, fubjsCf to a duty under the la vs of the .United ht,*rs,
are concealed in the ftore See. of » o* See„ Th.fe are ther fore to
authorife the fatd A. S. to enter into the fiiid Ylore, See. in the day iinue
rrnly, to fearch for the faid goods, wares and merchandize*, and if any
fha'.lbe found therein, to feize and Uciuc the fame lor tiial GiVcn
under my hand and feal at the county aforefaid, the - day of —*- 111
the year '■■■. ■■ ■, and of the independence of the United ptates the .
! e v i d E n c E. "
53 Y th e laws of the Unite.I Sfat'.s, 1 Cong. 1 feff. chop zo./eJ. 30
*r The mode of proof by oral teftisnony and examination of witntfie^,
f4 in open court fhali be the/i me in-all the courts of the United States
44 as well fn the trial of'caulVs in equity and of admiralty and mari-
44 time jurifdiflion, r.s of a ft ions at cc.nmor, law. And when the
44 teflimony of any pe;fcn fnoll ho rece.Tary in any civil caufe depend*
* ing in any difirifl court of the United States, who (hall Jive at
f4 a greater difiance from the place of tp'al than one hur d.ed miles, or.
44 is bound pn a voyage to fea, or is about to go out of the United
AlNo.N^X} um^r ^aws °f th* United St at es% ($)
E V I D E N C E.
*' St rites, or ont of fuch diflnct, and tp a greater diflance from the
4< place of trial thana? atorefaid, before the time of trial, or is an-
44 cient or very inform, the dtpofition of fuph perfon may be taken
44 dc bene eft before any jufltceor judge of any of the courts of the
/' United fctatcs, or before any chancellor, jnftice or judge of a fit-
«* preme or fuperjor coprt, may or or chief nrsgiftrate of a city, or
•« judge of a county court, cr court of common picas of any of the
** United State?, rot being pf counfel cr attorney to either of the
'• parties, or interefied in the event of the jaufe; provided that a
44 notif cation (a) f«om the rnagiRrate before whom the deposition is
4i to be taken to the adverfe party, to be prefect at the taking of the
44 fame, and to put interrogatories, if he think fit, be firft made out
44 and ft-rvc-d on trie adverfe party or his attorney as either may be
44 nearefl, if either is *dH>in on£ hundred miles of the place of fuch
«k caption, allowing time for their attendance after notified, not lefs
44 than at the rate of one day, fondays exclufive, for every twenty
" miles travel. Audit c ufes of admjrally and maritime jurifdidtion
44 or oih't cafe? of fti/ure w hen a libel fhail be filed, in which an
44 advesfe riry E -vi rarne.d, and depositions pf perfons circum-
** ftanced as .vuiiciYi^ be trken before a claim be put in, the like
44 nctjfkatiir. -'s nluprTaid, {ball be given to the perfpn having the
¥ agency or pcfLffor. of the prcpeity libelled at the time of the capture
44 or fci, me of (hf f;-me ; if known to the libellant. And every per-
44 fon depeftng a» aforefr.id, dull fee carefully examined and cauti-
44 omed,'at d fworp or affirmed to teffify the whole truth, and fliail
44 fubfenbe Ue teftimony by him or her given, after the fame be done
44 onl) by the magifira'e taking the Oepotuion, or by the deponent in
*< his picilnce. And the depofitions (o taken fhall be retained by
44 Arch trig:Urate until he deliver the fame with his own hand into
44 the court for which they arc tpken, or fhall tGge'.her with a fcerti-
44 ficate (r>) of the reafor.s as aforefaid (>f their being taken, and of
44 the no'ice if any given to the adverfe party, be by him the faidma-
4 giurate iV-aled up and dirtied to fuch courf? and remain under his
• * te?\ until opened in rrr.it. Arc! any perfon ravy be icmpelled tos?p-
41 prah and depofe ns aforela'ri ; c) in the fame manner as to appear
r* and 'eflifv in court. And ir: the trial of any caule of admiralty or
4 rnaskiffic inrifuiolicn in a diflridt court, the decree in which may
4> be frprerJed ftotn, jf either party fhall iuggeft to and fatirfy the
«' cct;ri that probably it will not be in his power to produce the wit»
44 r.cflcs there teftifying before the circuit court, fhould an app%el be
44 had, and fhall move that their trflimony be taken down in writing*,
44 it thai! be fo ccne by the clerk of the court s And if an appeal be
«4 had, fuch teH'mcny may be ufed on the trial cf the fame, if it fhafl
44 a;>pt?a*- f> the famfa&ion of the court which fhail try the appeal,
44 that the v/itncflcs are dead or gone out of the United States, or tt>
t! a greater diflance than as aforefaid from the place where the court
\t is fitting, or that by reafon of age, ficknefs, bodily infirmity or im-
»< prilonment they are unable to travel and appear at court, but rot
ct ^'herwif? t And uriSefs fhe fame fltali be made to appear en the
4,4 trial
(«)
Ditiies-ufn Jnf.ue
/ A?f.-uix
t No. a. "
evidence.
«4 trial of any epufe with reij>e<H to witness whore depofitions way
<( have bcew taken theieir., inch depofi'icr.s fhsli rot be odrnirfed or
*• Ui'td is the caufe : Prc-v ded, *1 hat noshing herein lh ili be ccn-
** ftrncd to prevent ary co«r"' fi the United i-ti-tts ficir graining a
*' deJitnuspblejlqlcm to lake depofitions according 13 common ulagc.
'* when it may be nrorftbry to prevent a failure delay cf jukice .
*■ which power ihty fhall leveraiiy pofiefa j r:or to extend to aepomi-
*( ons taken in perpstuam ret mtmortum, which if they relate to mat-
** tei$ that may be cognizable in any court of the United State?, a
* circuit court on application thereto made as a couit of equity, may,
•k according to the ulbgea in chancery diieft to betaken."
(a) Notification cf the Magifraie before why.:: a dcp~
fit ion is to fe taken.
State of • ■ , ■ County to ivip :
Whereas a. P. of &c. hath this day ghon infouoation torr,e
J. P. a judge of the county court of -—- for if any other office, name
$7,3 that R. W» of Sec. is ft material witnrf3 fer him in a fuitnow
depcrdt'eg in court of the JJnitsd States for the dilirift of ,
[mention the ccurt ivhetbcr dfiri& or circuitj in which the Paid A.P.
is plaintiff and C. D. of &c. is defendant, and that the /aid B W.
fefidus at a greater diffance from the place of trial, than one hundred
tniUs ; [_or, if the witnefs it in any ether manner circumjianct'd. nhich
"jjill authorifs the taking of his depofvion under 'the aboze recited iawt
mention it ] and the laid A. P. having made application to me to take
the depofuiors cf the faid B. W. de bens tjfe, piquant to the a6l of the
Congrefts of the United States, in that cafe made and provided j thefe
are to give you notice that I fliall proceed to take the depofition of the
laid B. \V. on the day of next, at the houfe of in the
town (or county) of — between the hours of ten in the morn-rg
»nd fix in the evening of the farr.eduy, when and where you may be
vefenr, to put interrogatories, if you think fit. Given under my
aru! this day cf •■■■ - in ihe year —— and ©F the independence
of the United St.i tfs of America the . % J P.
To C. D. of &c,
(b) Cer-
A copy of I hi; notice Jbouldbe fit ncd on the ad-vcrfi pat ty, with-
in the time tiyniited by the above recited all, and on the back *fthe
notice itflf a certificate fbsuld be made by a fr.agifiratt\ to the fit-
facing cjj'cSi} viz:
<£ — tr. tc.f. This day-—— pcrfonr.Uy appeared before me
J'. P. c jufi.ee t fn.e pcc.ee fi>r the county of — in the fiale of ,
and. tuntie oath P.cJ on the — day of left, bo delivered to the
t-dftjiff prunedC id a f. ->r copy cf the within notice. Given dc-
7 <r
under the Lavesof the United States, (7)
*. . : . . . 1 .
EVIDENCE.
H) Certificate of the Magistrate to he inciofed to the•
Court together with the depfiitmu
Siatetof ———, •—— County to wit,
. I J. P a judge of the county court of ■■■ in the (late aforrfaid
for ether office^ as the cafe may be] do hereby certify that the .-iepo-
iition of B. W. ef 2cc. h«rewirhfent, was taken by me according t<^>
law, at the requeft of A. P. of &c. whoaiiedged .bar the faid B. W.
was a material witnefs for him, in A caufenow depending in the — ■—
court of the United States for the diftrict of —— wherein the faid Ai
P. is plaintiff and C- D is defendant, and that the faid 2. W. fived
at a creater difiance from the place of trial than one hundred m.lcs j
[oryif for any other reafon, mention it%] and I do moreover cerrif'y
that I directed a copy of the within notice to be ferved on the faid
C. D. which appears to have been done from a certificate on the b^clc
tjf the notice now inciofed. Given under my hand this ■ " ■ day
bf in the year ■ ■ and of the independence of the United
States of America the ——. J. P.
To —— court of the United States]
for the di Uriel of ]
(e) Summons for the Witnefs to appear before the Ma~
gijtrate to be examined.
Between A. P. Plaintiff, "J In the — court ef the United
and C. D. Defendant, J States for thedilhifi of ——.
"Whereas, in purfuante of the a£l of Gor.grefs of the United
States, in that cafe made and provided, A. P. of See hath made ap-
plication to me J. P. a judge of the county court of [or other
office] to take depoGtions of the,witneffes, whofe na»es are here-
Unto fuhjeined, he the faid A. P. having given rtie infoimation that
their tctfiracny was material in a taafe now depending in the » ■
court cf the United States for the diflriJl ot [name the court] in
which the faid a. P. is pldiniifF, and c. D. is defendant, and thai the
laid vvitneffes live at a greater diflnnce from the place of,trial tha»ooe
hundred milts, [or if for any other reafon name it;] thefe arc to will
and rtquire you, perfonally to be and appear before me on the ——
day ol —- next, at the houfe of —— In the town (or county^ of
, between the hours of ten in the morning and fix in the even-
ing of the fame Jay, then and thtre to be examined, v.d to teflify
your knowledge lor and on behalf of the plaintiff j and you are then
arid
It ft ems to be t-eeffiary for tie magi fir ate to return to courty
the notice, with a certificate ci) the oath of foir.e perfen there en+ that
h true copy was dcli-vcred to the adverfe pa; ty.
(8)
Bulks of a Juf.iee
/ Appenlm;;
I No. z.
EVIDENCE.
and there tb attend, and not to depart until you have been examined
eft the fart of the laid plaintiff : And herein you ate not to fail.
Qhvan &c. . J. P.
To B. W. C. W. &c.
TO prefcribe the mode ui which the public afts, recoids and
judicial proceedings irreach Hate, lhall be authenticated lo as to take
effeft in every other date, it is ensfted by the laws of the United Stctei
i Cong. 2 fejf. chap. u. " That the afts of the Jrgiflalurcs of ths
*{ feveral ftatei fhall be autheriticated by having the leal of their re-
fpeftive ftates affixed thereto * That the records and judicial pro-
*( cee'dings of the courts of any ftate, ih all be proved' of admitted inf.
any other court within the United States, by the atteftaticn of th&
** clerk, and the feal of the court annexed, if there be a feal, toge-
** ther with a certificate of tin ju*'gc, chief juitice, or prefiding ma-
" trtffrate, as the cafs raay be, that the faid attcfiation is in due
" form s And the fuid recorils and judicial proceedings authenti-
** cated asafcrefaid, fhall have fucii faith and cred?t given to them in
4< every court within the United States, as they have bylaw or ufage
tl in the courts of the Hate from whence , the laid records are, or
%< /hall be taken."
UNDER the atteftation cf the clerk with the feal of the court
annexed, the certificate may be written in this form, viz :
State of ——, '•■'■■■- (County to wit:
I J. T. prefiding magifhate of the corrrt of ■ ■ county, i/t the'
/late aforefaid, do hereby certify that the atieilalion hereto annexedy
made by J. C. clerk of the faid cdurt of '"'is in due form, and
that full faith and credit is*due thereto in every court within the Unit-
ed States, Given under my hand th s —— day of in the yesr
——~, and of the independence of the United States the . J. P.
Excife. See Spirits.
Forfeiture. See the latter part of this Appendix.
FORGERY.
lP$y the laws of the Untied States i Cong. 2 fejf. chap. 9./^?. 14.,
** If any perfon or perfoivs lhall falfely make, alter, forge or counter-
" feit, or caufe or procure to be falfely made, altered, foigeJ, or
" counterfeited, or willing!}* aft oralfiliitt the fdlfe making, altari^g
forging cr counterfeiting any certificate, indent, or other pubjic
" fecurity of the United State3, cr Ihal! utter, put off. or estate tc. be
" uttered, put off or offered for payment or for Gle any fuch fa'.lY,
** forged, altered or counterfeited certificate, indent or oilier public
" fecurity, wire intention to defraud any peri'on, knowing the lame
<• to he ralle, altered, forged or coupteifeifed, and lhall be thereof con.
0 vidi :Jj evcry fjcb nerfc-n ffiali fuffer d- sth." (a) War J
uu^er Lii'-vs of the United States, (9)
FORGERY.
(a) JVarrant for Forgery.
State of , —— County to unit t
WHEREAS A; I. of See. hath this day given information to
j. P. a juftice of ihe peace for the county of ■ ■ ■ ■ in the ftate afore-
laid, that on the day ©f ■ laff paft, ai —— in th« county
of - ■ aforefaid, in the ftate aforeihid, A. O. of &c, labourer, did
©iTcr forfale to a forged certificate, of the United States, [or,
iffor any other offence again ft the above recited aft, mention it,] with
intention to defraud the laid ■■■■• he the faid A. O. knowing the
faid certificate to be forged : Thefe are therefore to require youroap-
prebend the faid A. O. and bring him befoie me or fome other juftme
of the peace for the county of aforefaid, to be dealt within the
prem fTcs according to law Given under my hand and feal at-the
county of ■■■ ■■ atorelaid.-this day of —— in the year ■■■■— -* and
in the —— year of the independence of the Unired States ot America,
To —— to execute.
Note.—// is ufital either to evctorfe on the 'warrant the names of
the witneffes, or to ant. ex their names to the foot of it : Thefolictving
fummons is, however, the moji regular mode.
(b) Summons for d Witnefs.- 1
State of ——, — Count}, to witi
"Whereas a. o. of See. labourer, hath been arreted by my
warrant, and is r.ow brought before me for lufpicion of having offerC.
cd for fale a forged certificate of the United State?, [«r other facts,
as flatcd in the warrant] and biing informed that A. W. of &c. is a
tnatf rial witnefs to be examined concerning the fames Thefe aie to
require you to fummon the faid A. W. to appear before me, at «■■■■
in she laid county of on the day of — at — o'clock
cf the fame day. to tc ftiry concerning the fame. GiVen under my
hand and fcal this day of in the year <■, ar.d of the in-
dependence of the United States the-- - - •• •
To - ',■ ■■ to execute.
(c) Recognizance of the Witneffes,
State of ——, —— County, to wit s
. Jl!)E it remembered, that on the — day of — in the ye&t»
and in ,the —— year of the independence of the' United States of
America, A. W.- of See. B. W. of &c. perl'onally eame before nve J,
P. a juftice of the peace for the county of - , in the (late aforefaid,
and acknowledged themfelves feverally to'owe to the United States of
America, dollarsof good and lawlul tnc^y °f'he faid United
States, t© be.made and levied of their, and each of their goods and
B chattels.
(ro) Duties of a J a f ice {■AiT
FORGER Y.
chattels, lands and hereditrmeids, refpe&ively, if the fa id A. W- and
B W. lhall make default in r".rf«>imar ce ct the condubn here en-
derwritten. Acknowledged befoie inc. J. P.
THE condition of the above recognizance is fuch, that if the
above bound A W. and B. W do a.id thie.il perfcnaily appear before
the judges (or juflices) of the United Stater, on the fiifi: day of the
next courr, to be liela ar circuit, and /hall then and there give
fuch t< ftimony as they levtrallv know, concerning the offtnee, where,
with A. 0, of &c. Hands charged,0:1 behaif of the United States, and
do not depart without Rave of the court, then the above recopr.ban::
to be void, eife to remain in full force.
Bi
(d) Recognisance of Bail,
State of- 1 ■ County to wit s
lE it remembered that on the -day of in the year——=
and in the ■ year ot the independence of the United States of Ar'ne-
rica, A. O. of See. labourer, A B of See. and B li of &c. came be-
fore me J Pa jultice of the peace f for the county of aforefaid,
in the (fate aforef-.id, and feverally acknowledged theinlelves indebt-
ed to the United States of America, {hat is to lay, the faid A Q in the
Aim of ■ dollars, and the faid A B and B B in thefum of del-
lars each, to be refpeflively levied of their lands and tenements, goods
and chattels, yet upon this condition, that if the faid A O lhall make
default in performance of the condition underwritten.
THE condition of this recognizance is fuch, that if the above
bound A O lhalj perfdinally appear before the United States judges
(or juftices) on the firltday of the next court, to be heiden at for
the diftrift of —— (or for the circuit] then and thereto anfwer
to the faid United States of America lor and concerning [here recite
4he offence"] with which the faid A O hands charged before me, and
to do and receive what lhall by the court be then and there ordered and
adjudged, and lhall not depart thence without the leave of the faid
court, then thiij recognizance lhall be void, or eife remain in full force
and virtue. Acknowledged before me.
(4) Mittimut
•¥• In thofe cafes where the crime is fuch as Jails under the jurif-
did ton of the dijlrift court of the United States, the precedents jhouli
be drawn to Juit the cafe See the ftrmation and jurijdiflion of
the courts of the United States, in the ads of Congrefs, 1 Cong. 1
fjeff. chap. ao. '
•f- It mufl be obfewed that where the punifhmem for the offence\
is death,' bail cannot be admitted by a jitfice of the peace, but only by
a judge of afuperkr court,—See the firil page of this appendix. .
under the Laws of the United States, (iij
F o R G E R Y.
(e) Mittimus.
State of County to wit:
To the Keeper of the jail % of-
J SEND you herewith the body of A. O. of See. labourer, appre-
hended by my warrant and brought before me for felony, that istolayj
|fere recite the offence particularly :] and you the faid keeper of the
faid jail are hereby required to receive the faid A O into your jail and
cuftody, and him there fafe-ly to keep till he fhall be thence difchargt-d
by due comic of the law of the United States. Given under my hand
and feal this - day of in the year and in the —— year
of the independence of the United States of America.
I HAVE purpofely inferted under this title fuch precedents as
"Will ferve in other1 cafes, although fome of them may net be necelfary
fcr a jufice of the peace in the particular inlhmce of forgesy.
" F U"G 1 T I V E S~
Under this head I fliali only confder fugitives from labour.
The proceedings in the cafe of fugitives Item juflice, do not fall
tiiidir ihe cognizance of a jiftice ©t the peace. See lams of the United
States i Coi.grefs 2 jiff,chap. 51, ft PI. 1, 2.
BY the gdfeftion of the above recited Javr, 44 When a perfon
f1 held to labour in any of the United States, or in either of the ter-
ff ritorieso'h the norlh-weft or fouth-well: of the river Ohio, under the
44 laws thereof, ihall efcapt info any other of the: laid Hates or ter-
44 ritory, the gerfon to whom fuch labour or Arvice may be due, his
44 agent or attorney, is hereby empowered to fcize or arrcit fuch f.i-
41 gitive from labour, and to take him or her befoie any judge c>f trie
" circuit
In ccnfequehce of the refoluiion of Congr eft of ihe 2 id rj Sept em-
her 1789, recommending it to the iegrjlaiures cf the feme* al jlales io
pajs lanes, making it the duty cf the kcejers of their j.ails to receive
and keep prfonert committed under the a at ha :ty of the United Sta'ei,
the legislature of Virginia, at their feffon i.ext after the peffing of the
refolutton 0} Congrefs. paffed fuch iatv. This, jprejum.e, was dent!
hy the other jlates. The mittimus then mujl conform to ihe rat are
andcireumflanees of the cafe\ avifwg aswelljrom the alls ej the legif •
lattire of the Jcveralfates: as from thofe of Csngrefs -—7 hut. in of-
fences falling within the jurifdiliiou of the diflriCs ccurt of ike United
States, it Jeems, that the minimusJhoitld be directed to the keeper of
the jail where the court is held: the fame cbferuation will apply : x
the circuit courts of the United States. [See their jurifdidiicn in the
iirff part of this appendix. J If the trial ts to be bad lefore a fpecial
circuit court of the United States, then the proceedings ratifi all be
forwarded to fuch court. See laws of the United States, 2 Cong. %
M. chap. 66, fe«. 3.
(12) Unfits of a Juflice' ' ' {'iLT*
" FUGITIVE S.
** circuit or diftrift courts of the United 'States,, refiding cr feeing
'• within the ftate, or before any magi (irate of a county, city or town
" corporate, wherein fuch feizure or arreft inail be made, -and
•' upon proof to the fatisfaclion of fitch judge or magillraie, either
*' by oral tcltimony or affidavit tak.cn before and cert'fied by a magif*
" tr ite of any fuch ftate or territory, that the perfon fo feizeJ or ar-
relied, doth, under the laws of tha ftate or territory, from which
" he or flic lied, owe fervice or labour to theperlon claiming him,
4t or her, it ftiaJl be the duty of fuch judge or wsgifmte, to give a
** certificate thereof to fuch claimant, his agent or attorney, nl.iffi
fh.il 1 be fuffic'ient warrant for removing the faid fugitive from, hi--
♦* bour, to the ftate or territory from which he or (he fled."
"ANY perfon who Anil knowingly and willingly obftraft or
** hinder fuch claimant, bis agent or attorney in fa fsizingor arreting
.** fuch fugitive from labour, cr ihail refcue fuch fugitive from fuch
V claimant, his agent or attorney when fo arrefted purfuant to the
** authority herein given or declared t or fhall harbour or conceal
•f fuch perfon, after notice, that be or fhe wss a fugitive- from labour,
•* as aforelaid, fhuil, for either of the faid offence^, forfeit jnd pay
the fum of fiv® hundred dollars. Which penalty may be recovered
" by and for the benefit of fuch claufcanf, by a&ion of debr, in any
" court proper to try the fame, favir.g moreover to the perfon claim-
" ing fuch labour or fervice, his right of adlion fof or cn account of
« the faid injuries or either of them,"
IF theowner of fuch fugitive doth not produce oral teftimony in
ftlpport of his cla'm, an affidavit to the following effect, taken in the
itate of vVhich he is an inhabitant, will be necefl'ary.
S(nig of , County to wit:
I j. P. a iuftica of the peace for the county of in the (fate of.
——» do hereby certify that this day A VV, B VV, Sec. of &c. perfon-
ally came before me. and made oath thatth^y knew ■ \J.ere men.
lion the name of the fugitive, and defcrilehlmas a fer-jant, appre*•
ticc, or JlavCy as the cafe vsay be : 1 that the fiid is a perfon
about ■ years old &c. [here defcribe his a%s, jlature, &c ] and
thit the laid ■»- ■■ ■ under the laws of the Ibid fi.lte of i ■ is 4
ffervant, apprentice or flave, as the cofe may be'] and oweth iervice
for labour] to A M of ore. in the ftate of aforefaid, Given un-
der my hand and fsal at the county of ■■ » ■ in the ftate of afore-
faiJ, this day of in the year and in the year ef
t'ne independence of the United States.
Warrant of a Magiflrate to convey the fugitive to the
(fate from which he fled•
State of , —— County, to wit:
Whereas A M of——- in the ftate of ,■» hath produced fa-
fcsfaftory proof to me J P a juftice of the pea ce for the county, of—
in
tinder the tauf »f the tjniid States, (13)
^ ■
FUGITIVES.
in tf»e ftate ©f ——, that >■ * ■ [6ere Mention the name of thefrrtf*
Irve] who hath keen arrefUd in this fta'e sad brought before me, »s a,
fugitive fro.n the faid A. M. in the ftate of , and that the laid
A. M. «nder the Jaws of the faid ftate «if -—* is entitled to tie fer-
vice's [or labour] of the faid — : Thefe are therefare to auihnrize
the laid A.M. to remove the faid to the faid ftate of *■——, and
for fo doing this fbeM be his fufficient warrant. Givm under my
hand and ftp] this day of —- in the )ear — - — an J ;u the——
year of the hitmen dense of the United States of America.
HIGH SEAS.—For the trial and punifhraent of of-chces commit"
ted oa the highJeasx fee title " PIRACY."
LARCENY.
JDY the lawi of the United States t Cong, t /elf. chap. <j.ft8, t6i
" It any perfon within any of the places uticet the foie end exclu-
u five jurifdi&icn of the United States tru^r. the high fea's, fiiaii
u take and carhy away, witn intent i» rreai .r purloin the perfcnal
'* goods of another; er if any p' « not j.rrf»i a, having r,t any time
44 hereafter, the charge or cufto.'v i ' u. a.uis, ordnance-, n m.iticn,
44 ftioi, powder, or habiiimei '> o. wr r eelt r g op the United States,
44 cr of ary vcluais, pr-4 d - 1 u V;N ■ i of any fi-3il;ers, gun-
44 ners, marines or pane, is, t, *rr an) it. . tr gain, wittingly,
44 adviit I* a..d > . puipe'. tc b-u hjr or impede ti.r l'ervicecf tiie Uni»
44 t'ei ~ a<ts, en W:zz!«, p .)■ i cr c nveF pnay an« of the mid am 3,
44 or nd> ft, munition, fh i or powj.r, ! a1"; uxrn-s of war, cr vittu-
*' :1s, tuat then ami in every of the caids atareuid, tn ptrfi-n or
*• prrtvns it» ofiei.'d'np, thrj- c.l'r ft'I • srrf abct'ois fbn^-v.
14 n& of ill I |.':vytotde ->fn uces alotei'i *. f 'h «r loiviiiicn be
44 b;.cci nor rxci rciicg the V-ur fold value of the poorly io L,',. n,
44 eit t 'zz1.. or put...irre' ; tht i ne nroicty to l>e paij to the owtur
44 of ■ t gw ds, or the LYUeU Stater, ac the cult ipa/ be, and the
44 otuer moiety to thr m.formerarn' prol'ccutor, aim be publicly whip-
44 td, tici ,t\ eeuing i Yiiy ^'heih'pes."
Serf. T7« 44 If any pt r u or perfons within nny part of the
4' juriidiciion cf the United States as aionn d, (ball receive or htiy
44 any go'jtis or Jiattte s that /L? i be fdcnieui.y t.:ken or llo'en frcm
44 any o'aer perfon, knot ii. g the fame to be fiolen, or feall receive*
44 hinbour ortconceal any fcions cr thicvec, knowing them to be fo,
u he or thty being of either of the faid oll'euces legally convif^ed,
ss fiiall be iir.b'e to the like pumfhrnents as in the cafe of larceny
44 before arc prefcribed."
For Precedents, fee title Forgery ; ohfewing itz the defeription of
the oiftt.ee to jlai a n to ha<ve been committed, in a place t( under the
*4 foie Hud eAciolivejuiifu.iiion of the United States, or upon the
, G -high
fr4) Duties of a Jttfttce
f appendix
t No. ».
LARCENY.
*« high feas > or by a perfon having charge c,if the ami#, &c. of the
'• United States," as the cafe may be.
LETTERS, f«< MAIL.
Limitation tf Criminal Profeeutiontt See the laltsr part of this,
appendix.
M~ A I L. ~
JJ Y the fatso s of the United States 3 Cong. 1 fejj'. chap 33.
44 If any perfen employed in any of the departments of th» general
" poft effice, /hall unlawfully detain, ^eliy, or open, any letter,
44 packet, bag or mail of letters, with which ht /hall be entrube^, or
44 which /hall have come to his poll' (Tipn, and which areinrenoed to be
44 crnveyed by pslt* Or if any luch nerf .uihall Lciete, t'Kibezz.e or
44 defiroy any letter or packet, entrufted ts him, ai aforeUil, a<id
44 which/hail not coaxun any fecarity for, v-r a/furar.ce trhtiug to
44 money, as herein after defcriber!, jny fuch offerer being thereof
44 duly convi&ed, ffiaii for every fuch offence, ht finrd r.ot exceed-*
44 irg three hundrpd dr.lars, or .mprif ned not exceeding fix mi.r.ths,
44 or both, according to the circumlances and aggravations of the
44 offence. And if any ptrfoi cinpl-5 a» afortlaid, f.iali frcrcts,
44 eirVzzie ordf'trow, any iciter, packet, bag, nr ma'i of ie'fers,
44 with wbici he /hall he fn'.ruHtd, or wi.ich &a'l have come to his
44 t-ofitfl on, and a-e i; teud«.il 'o * r. cenvcyed by pelt, containing my
4v bank note, or bank pelt bid bill of exc n&-»e,e warrant of the trea*
*( fvv of (he United States, note of ,-Zir p-sent ->f ilock in. the fands,
44 liters of attorney for rceivinp ski itjes or dividends, or for ieU
44 l'ng ftack in thefur.i , ot for r-c* v.ngthe ir.tercft tliereof or any
44 letter cf credit, orroti for, or relating to the payment of money,
44 or other bond or warrant, draft, b'1' or promitTary notf, what-
44 foever, for the payment of money j ® if any fuch perfon employed
44 as aforef2id, fitall fieal or ta.k^ any of the fsme out of any letter,
44 packet, hag, or mail of letters, that /ball come to his poffe/hon,
44 he ffca'l on conviflion, for any fuch offence, fuifer death. And if
44 any perfon who /hall have taken charge of the mail of the United
*' States, /hallquit or defert the fame, before his arrival at the next
44 pofl office, every fuch perfon fo offending, lhall fotfeit and pay a
44 fum, not exceeding five hundred dollars, for every fuch offence*
4'4 And if any perfon, concerned in carrying the mail of the United
44 States, (hall collefi, receive or carry any letter or pack*, or /hall
44 caufc or procure the fam,? to be done contrary to this aft, every
44 fnch offender /hall forfeit and pay, for every fueh offence, a fum
44 not exceeding fifty dollars."
Seft. r 7. 44 If any perfon or perfons fhall rob any carrier of
44 the mail of the United States, of fuch mail, or any part thereof, fuch
44 offender or'offenders fhafl, on conviction thereof, fjffer death, And*
44 if any perfon /hall fteal the mail, or (hall Ileal and take /rora or out
5* Ql the mail, or (com or out of any poll office, any letter 01 packet,
fmolk
*»»«} m^er^e Laws of ihe Urn ted States* (ifi
MAIL.
*• fuch per/on /hall, upon convittion for every fuch offence, be fined
44 not exceeding three hundred dollars, cr impriloned, not exceeding
44 fix months, ®r both, according to the cucumttancss and aggra-
44 vations of the offence."
The precedents under title " Forgery" may be adopted here,
yjith fucb "jaria 'ions in the defer if tien of the tffenee as will bring the.
caje under the above recited law*
' MAIM I N G.
I^Yr the laws of the United States x Cong, a fe(f,ehap. 9. fc3, if.
44 It any perfon or peiftsns, within any ot the places upon the land
4* under the fole and eiiclufive jurifdidtion of the United States, of
44 upon the high feas, i-- any vcffel belonging to the United States, or
44 to any citizen or mizsns thereof, on purpol'e and of malice afore-
44 thougr.t, in all unlawfully cut off the car or ears, or cut out ©r dif-
44 able the tongue put out an rye, flit the nofe, cut off the nofe or a
'* lip, or cut off or dtfable any limb or nsimber of any per/on, with
44 intention in fo doing to maim or disfigure fuch perfon in any the
44 marners before mentioned, 'hen and in every fuch cafe the perfon
44 or perfons lo offending, their counsellors, aiders and abettors
44 f knowing of and p. ivy to the off-nce alorefaid) fhall on conyi&ion
44 be imprifoned not exceeding fcyen years, and fined not exceeding
44 one thoufand dollars,''
For precedents, fee title u Forgery f* obferving to very the de*
fcription of the off erne.
M AN S LAUGHTEL
Y the laws of the United States, x Cong, »feff. chap. 9. fell. 7.
tt If any perfon or felons fhall within any forr, arfenaJ, ucvh yard,
44 ma^az'na or other plrce ot diftrift ot countrv, under th. fyie and
44 exclnnvf urifdiiffioi .u the United State*, commit the crime of
44 manfiaughter, and fhall be thereof convi&cd, fuch perfon or per.
"■ Ions fhall be imprifuncd not exceeding three years, and fined not
44 exceeding one thoufand dollars."
For the difinition of manflaughtert fee title (l Homicide" in tl^
body of this work.
For precedents, fee title 44 Forgery" in this Appendix,
Mariners,fee Seamen"
Mifprifonment of felony, fee 44 Murder"
MURDER
(i 6) f)uties of a Jufiee
MURDER.
By the laxvs of the Unite J States, 1 Corg. 2 f$JJ, chap. 9 .feft. 0 4
*' If any peiion or peiTor?? /hall, within any fort, arfenal, dockyard
*s magazine, or in any other p'aca or ditbiet cf country, under the
*« fole andeJcciulive. jurifdiclion of the United States, commit the
*f crime of wilful murdsr, fuch perfon or peri'ons on being thereof
tf conviidcd fliali luffer death.**
Seft. 4.. ** The court befo-e whom any perfon /hill be cotmtfed
" of the crime of murder, for which he or fiie /hail be fenterceJ to
** fuffer death, may at their difcretion> add to the judjr.ntcf, that
44 the body of fuch offender /hall be delivered to a furgeon for difl'ecti-
" on and the rnarAiall who is to cau/e fuch lent* nee to be executed,
u ftail accordingly deliver the body of fuch offender, alter execution
*• don®, to fuch iurgeon as thccourt /hall direii, for the puipofe
" a'orcfaiii t Provided, that fuch furgeon Or foirie other perfon by
" him appointed for the purpofp, ftull attend to receive and tajce
s< away the dead body at the tune of the execution of fuch offender."
It
Sefl. 5- 4< If any perfon or pet/oos /ha'!, after fuch execution
lt had, by force refcue, or aM< mpf to refcue the body of fuch offend-
14 erout of the cuftody of the marffia'i or his officers, during the
" conveyance of fuch body to any place for diffeftion as sforcfa.'d, or
*4 /ball by force refcueor atrempt tt refcue (uci tody from the hou's
" of any furgeom, where the fame ffi*ll ha^e oeen nepof.ted, in pur-
** fuarce of this aft; every perfcr lo offending, ih&. 1 he liable to a
*' fine not exceeding one hundred dollars, and ah iinprifionmet.l not
,c exceeding twelve months.
Seft 1 6. " If any perfon or p^fors havirg knowledge cf the
" aftual comniifiion of the crime cf wilful minder <-r other felcn;',
te tipen the high lehs, or within any fort, arfenal,dock yard, mats-
" zirse, or offer place or dittrift of courtry, under the fole and ex-
" clufive jurifJietion of the Ut.iied Mates, fhall conceal, and rot as
" foon as may he difclcfe and make known the lama to Rme ere of
<4 the judges, or ot her pei /bus in c:\ll or military auihority order th2
st United Miarcs, on coovi. lion thereof, fuch ptrion or perfons fnall
t( be adjudged guilty cf miiprithn of felony, am fliall be imprilenef
** not exceeding thiceyears, and fined not exceeding five hundred
" dollars.'
For precedents, fee title Forgery in this Apperdiv,
cifcrvir.g to vary the drfcription of the offence, Jo as to
Iritw it under the above recited luxe.
6
For murder committed en the highJeas,fee title Firaey*
/ APT^dus
I ho. a.
MUTE
^Nb un^er the Laws of the United States% ^17^
M V T • &
IT th$ laws of the United States, i Cong % fejf, chap. q.y. i L , a*
" If any pet ion or perfons b? jndi&ccl of trtafan agmnfi the b ( ,
** fitatfs, ^nd (hall tfan^ mute or refufe to pleads or (hall civ' i
«* peremptorily abovp. the nqmbfff of thirty five ©h the jury ; or if i\ <
a per fan or performs be iodised of any other of the ®fFpncfs U^&u,
«k before fet forth, (vig^thofe enumerated in the above law of tn-s
«« United State&j for which the punifhment is declared, to be de t:,
«« if he or they ihall alfo itand mute,'or will not anfwer direflly ton e
indictqient, o* challenge peremptorily abqve ^he number of twenty
f five p^rlons of the jufy> the cpurt in apy of the cafe® aforef^id^
(hall notwithstanding proceccj tp |h$ trial of tfie perlon or per font
f fa (lauding mute challenging, a$ jf fie of they had pleaded pot
« guilty, and render judgment thereon accordingly/'
"" P E~~R J U ~R Y. \
Bv the laws of the United 4' tates i Cong, a fejf. chaj), <)• fc3. i 8.
«♦ It any perfon (hall wilfully and corruptly commit perjury or (hall
W by any means procure any perfon to cpmmit corsu'jt and wilful
«* perjury, on his or her oath ©r affirmation in any fuit. costroverfy^
matter or caufe dependingi* any of the courts of thfe'Uni'.ed States j
or in any deposition taken purfuant to the law? of the Unj ed
" States, every perfon fo offending, apd being therepf ccpyified, ihall
i* be imprifgned not exceeding three years, and fined not exceeding
•« eight hundred dollars, and (hall hand in the pillory fop ope hourj
f* and be thereafter rendered incapable of giving teftimony in $gy of
** the courts of the United States, until fuch time as the. judgment fo
•* given againft the faid offender ihall be reverled."
Sett 19. " In every prcfentment or indictment to be profecqfei
•c againfi any peribn for wilful and corrupt perjury, if (hall be fyifi-*
<4 cient to fi;t forth the fubftance ©1 the offence charged upon the de*
*' fendant, and by what court, or before whom the oath or affirma*
** tion was taken, (avering fuch court, or perfon or perions, to have
" a competent authority to adminifier the lame) together with the
proper averment or averments to falfify the matter or matters
" wherein the perjury or perjuries is or ajfe affignedj witbqut letting
" forth the bill, anfwer, information, indictment-, declaration, or any
•• part of any record or proceeding, either jn law or equity other tljan
" .as aforefaid, and without fstting forth the commiffign or authority
'* oi the cojurt, or perfon or perfoss before whom the perjury was
*■ committed "
Seft. 20. " In every prcfentment or indifhment for fuboydinafioii
«' of pet jury, or for corrupt bargaining cr contracting with others to
** commit wilful and corrupt perjury, it (hail be fufhcjent.to fe» forth
** the fubftance of the offence charged upon the defendant, without
** fetting forth the bill, anfwer, information, indiftment, declaratjotl
** or any part of any record or proceeding, either in law or equity#
and without fitting forth the commifiion er authority of the c©iiit,
X> 0(
(i8) ' Duties ef a Juflice _
PERJURY.
*' or perfon or perfons before whom the perjury was committed, or
44 Vf*s agreed or promifed to be committed."
For precedents fee thofe under title * Forgery" in this Appendix,
the formal parts of which will equally ferae for other cafes.
' P~~ I R A C~
IjY the laws ef the United States, i Cong, t fejf. chap. 9. fe ft. 8.
" If any perfon or perfons fhall commit upon thehiph feas, or in any
44 river, haven, bafon or bay, out of the jurifdi&ion of any particular
*« ftate, murder or robbery, or any ether offence which if committed
" within the body ef a county, would by the laws of the United
44 States be punifhable with death ; or if any captain or mariner of
44 any fliip or other veffel, fhall piratically and felonicully run away
44 with fuch fhipor ve/Tcl, or any goods or merchandize to the value
44 of fifty dollars, or yield up fuch fhip or vcffei voluntarily to any
41 pirate; or if any feaman fhali lay violent hands upon his comman-
u der, thereby to hinder and prevent his fighting in defence of his
44 fhip or goods committed to his truff, or fhall make a revolt in the
44 fhip every fuch offender fhall be deemed, taken and adjudged to
be a pirate and felon, and being thereof convifled, fhall fufftr
41 death; and the trial of crimes committed on the high feas, or in any.
44 place out of the jurifdiSIon of any particular ftate, fhall be in the
44 diftri& where the offender is apprehended, or into which he may
44 firft be brought.
Sell. 9. *' If any citizen fhall commit any piracy or robbery afore-
44 faid, er any aft of hoftil.ty againft the United States, or any citizen
44 thereof, upon the high feas, under colour of any commiffion from
41 any foreign prince or ftate, or on pretence of authority from any
44 perfon, fuch offender, fhall, notwithstanding the pretence of any
44 fuch authority, be deemed, adjudged, and taken to be a pirate, fe-
u Ion and robber, and cn being thereof convicted, fha!! fuffer death."
Se£l. 10. 44 Every perfon who fhall, either upon the lander the
44 feas, knowingly and wittingly aid and afiift, procure command,
44 counfel or advife any perfon or perfons to doer commit any murder
44 or robbery, or other piracy as aforefaid, upon the feas, which (hall
44 aireft the life of fuch perfon, and fuch perfon cr perfons fhall there-
44 upon do or commit any fuch piracy or robbery, then all and every
44 fuch perfon fo as aforefaid aiding, shifting, procuring, com man J-
44 ing, counfelllng or advifing the fame, either upon the land or the
44 fea. fhall be. and they are hereby declared, deemed, and adjudp. d
44 to be acceffary to fuch piracies before the fa£l, and every fuch per-
44 fon being ihcieof convifled fhall fuffer death."
Sett.x 1. *' After any murder, felony, robbery, or other piracy
44 whatfosver aforefaid, is or fhall be committed by any pirate or
41 robber, every perlon who knowing that fuch pirate or robber has
44 done or committed any fjch piracy or robbery, fhall on the land
" or at fea receive^ entertain or 002^any fuch pirate pr robber, or
ftc.ive
wider the Laws of the Untied States. (19)
PIRACY.
44 receive or take into his cuftody any Ih:p, vcfiel, goods or chattels,
44 which have been by any f»ch pirate or robber piratically and feb-
44 nioufly taken, fhail be, and are hereby declared, deemed and al-
u judged to be accdfirry to Arch piracy or robbery, after the fail ;
44 and on conviction thereof, fhall be imprifoncd not exceeding three
44 years, and lined not exceeding five hundred dollars."
ScB. 1 z, "If any feaman or other perfon dull commit man-
44 fhughtcr upon the high fees, or confederate, or attempt cr endea •
44 vour to corrupt any commander, mailer, officer or mariner, tc yield
44 up cr to 1 uij away with any fliip or vcITd, or with any g aode, wa: ts
*s or merchandize, or to turn pirate, or to go over to or confccic a.e
" with pirates, cr in any wife trade with any pirate knowing hhu to
44 be fucbj or hull furnifh fiirh pirate \vi■ h any ammunition, Ik-fan
44 or prcvifions ol any kir.J. or /hall fit cut any veffel knowingly ai-d
44 with a du'ign lo trade with or fupply «r coriedjsorid with any pi;ate
44 cr robber upon the fcrs ; or if any perfon or p;rf«r.s bull an / ways
44 canfulf, combine, confederate or correfpOnd with rr.y pirate or
44 x bb:r on the fear, knowing him to be guii'v of ar.v fucb piracy cr
44 robbery; or if any framan flird! confine the mailer of any flip or
44 ether vefiil, or endeavor to make a levoh in fucli /Lip :—fucli per-
44 fon or paribus fo elkndir.g; and being thereof convicted, f.iall be
44 inu-tifjnei not exceeding three years, and fined not cxctcdsrg 0:15
<k thcufand daiiats.'®
For precedents-, fee title ,l Forgery" in this Appendix, defc; thing
the 0 fence J* as to bi ir.g it tinder the above law,
P R O C E S S.
By the laves of the United States, 1 Cong. 2 feff. A.ai>. -9. fid. as.
44 If any perfon cr perfons Iha'd knowingly and wilful!*, ob trutf, re-
41 fill or onpofe any chic.r of the United States, ir. Icrvi.'.g or at'empr.
44 ir-g to feiveor execute any mefne prccefsi or warrant, or ?nf" ruin
44 or order of any of the courts of the United States, or any c thcr D-
*' gal or judicial writ or procefs whatfoever, cr fii.nl i alihuir. beat or
44 wound any officer, cr other perfon duly authorised, in frrvii'g or
44 executing any writ, rule, order, prcccfc or warrant aforeluid,every
44 perfon fo knowingly and wilfully offending in the pi uv.if.'S, fuali,
44 ob conviflion thereof, be impriloncd not exceeding twelve mouths,"
44 and fined not exceeding three hundred dr lhirsP'
Receivers of fiolen Goods, fee 44 Larcir:* C
RECORDS.
I^Y the laws of the United States 1 Cong. 2 fi-jf, chap, 9. pfl. 5 5.
u II any perfon fhall felonioofly fieal, take away, aiici, Pfifif], <•>'
44 othcrwifeavoid any record. writ. proc.fi-, or ether prcctr'.nyr, in
(izo) Duties tf a Juftice
/Apfe-TOI*,
I Nou ».
RECORDS.
*' arty of tlie courts of the United States, by ra>ans whereof snv judg-
♦' merit/hall be reverfed, made void, or not take efFefl, or if any
44 perfon /hall acknowledge or procure to be acknowledged in any of*
44 the courts afbrefaid, any recognizance* bail or judgment, in the
44 name or names of any other perfon orperfons not privy or confemt*
44 ing to the fame, every liich perfon or p°ifor,s on conviction thereof,
44 fiiall be fined not exceeding five thousand dollars, or be imprison*
44 ed not exceeding feven year's, and whipped not exceeding thirty*
4* nine ftripes. Provided*, That this a6t /hall not extend to- the ac-*
44 knoWiebgrnent of any judgment or Judgments, by any attorney or
•• attornies, duly admitted for any perfon or perfons againft whom any
44 judgment or judgments ihail be had or given.''
R E S C U £
BV the law: of the United States i Cong, z fejf. chap. q.feS 13.
4>4 If any perton or perfon?, /hall by force fit at liberty,or retcuc any
44 perfon who Jhall be found guilty of trta/on, murder or any other
44 capital crime, or refcue any perfon convidfed of any of the faid
44 crimes, going to execution, or during execution, every perfon fa-
44 offending, and being thereof convifted, /hall foffer death : And if
44 any fiiall by fercefet atlibeity, or refcue any perfon who before
44 conviffion fiiall ffand committed for any of the capital offences
44 afore faid p or if any perfon or perfons fliait by force fet 2t liberty,-
or refcue any perfon committed for or convifled of any other offence
44 agairdt the United States, every perfon fo offending, fhali, on con.
44 viC\ion, be fined not exceeding five hundred dollars, andimpiifon*
44 cd not exceeding one year,"
For precedents of warrants, &c, fee title 44 Forgeryof this'
appendix. In every injlance ob.ferve to deferibe the of enee as nei.r~
ly as may be, in the words oj the lavs itjelf.
Robbery, fee 44 Piracy
Robbing the Mail, fee 44 Mail.""
SEAMEN,
The a£V of Congrefs of July aoth, 1790, intiflcd 44 An aft for thegr'
4 vemment and regulation of jeamen in the merchantsfervicef
comprifjnga variety of fubjeCts which fall within the jurifdicfion
of a Juftice of the Peace, and being of confiderable importance to
merchants and others, engaged in maritime affairs, it is pre-
fumed that a recital of the whole awill be acceptable to rsanjf
into-whofe hands this book will fall,' '
A^n2dix} under the Laws of the Untied Sdatesi (21)
S E A M .E N.
SeEiett 1. TJ E it enatted by the Senate and Honfe of Feprefentati'vei
JO °f thi United States if America in Vingrtjs ajfemh(tay
44 That from and after the firlt day of December next, eveiy marier
44 or commander of any lhip or veffel bound from a port in the United
44 States to any foreign port, or of any {hip or vtfl.d of the burthen
44 of fifty tons or upwards, bound from a port in one lia*e to a port i»
any other thin an adjoining itatc, fcali, before he proceed oa t ucti
44 voyage, make an agreement in writing, or in print, with e\ety fed-,
44 man or mariner on board fuch lhip or vtlTel (except l'uch as A.all
44 be appreuiice or fertant to himfell or owners) declaring the Voyage
44 cr voyages, term or terms of time, for which l'uch ft amen or man.
41 tier fhali be And il any maHeror commander of fucii fci;»
■" cr veils! fcrJi carry out any ltarr.cn or mariner (except apprentices
*• orfervants as atord.wJ) without l'uch conciafr 01 agreement being
44 fir It rnaae and fjgned by the leamen and marixers, luch maker or
"■ commander lhall pay to every loch ieaman or mariner, the higlo L
44 piice or wages, winch fhsii have bet n given at the port cr p'aca
*' where l'uch KRinsa cr mariner lhatJ hue I ten Iksppcd, f< r a iiuiifcr
*» voyage, vithin threj months rextbefoie she time ct fuch Hupping j
" Provided fuch fcanHr. or manner lb ill pimcrm luch voyage : 01 if
41 not, 1 fit u lor l'uch time as he mall roc inu-t to do duty on boarci fuck
44 lhrpci vcfTclj ar.d fhaii moreover leri nt twenty dc-iars for every
w Inch fee mar. or manner, 'oac hall to tin ufe of toe perl'on j !of;cut»
44 ing fer the lame, the other hdftothe u(<- of tlie United States.* Ar.d
44 luch learwan or mariner, not h,»vinp fgned i'sch ccntradt, fcaii not
44 be bound by the regulation?, r.er lubjttl to the penalties and for-
44 fciuires contained m tnis ait.
Sett. 2.4,1 At the foot of every fuch contraff, (here fcJtll bea metro-
44 randum in wrrsnr, of the day ar.d the hour, cn which fuch learnan
44 or uiarriner, vyl.o /hail fo lhip anu lubicribe, f/vdi rci ucr themfcives
44 on board tb begin the voyage agreed upon. And if any Inch lea*
44 man or mariner ih?»ll neg)t£t to rtndSr JiimfJt ort hoatd the lhip
44 or vdfel, lor whikh he has lhipped, at tea tune mentioned i.n lucu
«4 memorandum, and if the mailer, commander, or ether ofceor <;! iie
»4 fiiip or veile!, lhall, on the day on which luch r.egiedt happened,,
44 make an entry in the leg book of luoli fhip or v< 1-h i, of the name of
41 fuch Teaman or mariner, and fcall in like manner note the time
«4 that be fo ncgkfled to render hiruleli falter the time appointed) j
*' ever* fucli feamau or mariner fcall lorfeit tor every hour which ho
44 fnali fo nep-lefl to render l-.iml'clf, one day's pay according to she
44 rate of wages agreed upon, to be deduced cut uf his wages. And
44 if any fuch fcouun or mariner lhall who.']y ncgiofi to render h«m.
44 1'clf on board of luch lhip or vst'Iei, or having it mi.-red hhnfrif eat
44 board, fiiall nfte; x-ards delsri and el'cr.pe, fo that the fcip or vc lfel
44 prcce'd to f a without him, every fuch lew. man or mariner fnlj for.
44 lei? and pay to the mailer, owner or conhgnce, of the laid llr.p or
44 vclTJ, a fam tspial to that wh'ch fcr.ll have ! ecu paid, fo him by ad.
44 vstrtcfi at the t me of fisrr.ii'g the ccntiafl, over and hcf.des the iuia
44 f- -"'vmccd 5soth widen Aims lhall be recov.ruble :r a y court. or
J£ Uefuitf
(22) Duties ef a JuJlice {^.T
~~ SEAM E N.
before any juftice orjuflires cf any flate, city, town or county witlu
44 in the United States, which by the laws thereof, have cognizance
44 of debts of equal value, again!! fuch feaman or mariner, or his furety
** or fureties, in cafe he fhall h?ve given furety to proceed the voyage.
Si ft. 3. 4 If the mate or firft officer under the matter, and a majo-
41 rity of the crew of any (hip or vefiel, bound on a vovn.ge to any
44 foseign port, (hall, 2fter the vayape is begun fand before the fhip
44 or vefiel flu!! have left the land) difcover 'hat the faid fhip or vtffii
u is too leaky or is D'her-wifc unfit in her crew, body, tackle, appa-
f4 rei, furnituie, pxvifions or fiores, to proceed on the wtendtd
44 voyage and fir-il nqriro fuch ucfitnef* to be enquired into, the
44 matter or cmiaiaii Jrr fii-di upon the req< eft of the faid mate ' or
44 other officer) and fuch n ajority, lorthwth proceed to cr/iop at the
44 neanii or mod convenient port ar pi ice where fuch enquiry can be
" made, and ill »b diere apply to the judge of the di/bicT court, if he.
44 fhall there jtlidc, or if not, to fome juftice of the peace of the city,
?* town or place, taking wi'li him two or more of the faid crew who
44 /nail havr rrade fitch ieqm ft ; and thereupon fuch judge or jullice
•' is hereby auth irift-d and nqu'ricl to iflfur his precept directed to
" three pcrfons in the ndghbcu'hood the moll fbilful in maritime
" affairs ihat can be procured, requiring them to repair on board fuch
44 fli'p or vefiel, and to examine the fame in rclpeft to the dcre&s and.
44 infufficiencies complained of, and to make leport to him the faid
44 judge or juftice, in writing under their hands, or the hands of two
44 of them, whether in any, or in what refpeft the faH (hip or vtffel 15
•' unlit to proceed on the intended voyage, and whit addition of men,
provisions or fiores, or what repairs or alterations in the body,
44 tackle or apparel will be necefTary ; and upon fuch report the faid
44 judge or juftice fha'I adjudge and determine, and fliall endorfe on
44 the faid report his judgment, whether the faid fnip or veffst is fit to
*4 proceed on the intended voyage, and if not. whe her fuch repairs,
can be made or deficiencies fuppiiej where thefhipor vefiel then
41 lays, or whether it be necefTary for the faid /hip or vefiel to return
44 to the port from whence fhe firfl failed, to be there refined ; and the
44 matter and cr*w /hail in all things conform to the fiid judgment}
44 and the mailer or commander /hall, in fhe firfl infiance pay ail 'be
44 cofls of fuch view, report and judgment, to be taxed and allowed on
*• a fair copy thereof ce; t.'fied by the faid judge or juftice, But if the
*' complaint of the faid drew fit ail appear upon the faid report and
44 judgment, tohave been without fo undation, then the faid matter, or
the owner or confignee of fuch fliip or vefiel, fhall dedtift the amount
44 thereof, and of rc a fcnable damages for the detention (to be afcer-
44 tained by the faid judge or juftice) out of the wages growing due
44 to i he complaining (earnrn or mariners. And if after fuch judg-
44 ment, fuch fiiip or vcffcl is fit to proceed on her intended voyage,
44 or after procuring fuch men, provifions, fiores, repair, or altcrati-
44 ons as may be direfled, the/aid fearnen or mariners, or either of
them, fhall refufe to proceed on the voyage, it /hall and may be law-
I4, fui for any jy./tice ot the pe^cs to commit by warrant under his
' hand
ANaEN2BlX} un^r^e Laws of the United States. (23)
SEAMEN.
^ band and fcal, every fuch feamen or mariner fwho (hall fo rcfufe)
44 to the common gaol ef the county, there to remain without bailor
" mainprize, until he (hall have paid double the fum, advanced to
< 44 him at the time of fubferibing the contra/ft for the voyage, tcgethef
u with fuch reafonable code as ft all be allowed by ,.tb« find jufiice,
44 and infertcd in the fa id warraet, and the furety or furetiesof fuch
44 feaman ©r marriner (in cafe he or they^ftall have given any) (hall
44 remain liable for fuch payment; nor ftall any fuch feaman or
** mariner be difcharged upon any writ of habeas corpus or otuerwif^
44 until fuch (umbe paid by him or them, or Ilia or their furety or
44 fureties, for want of any form of commitment, or other previous
• 44 proceedings : Provided, That (ufficient matter ftdl be made to
44 appear, upon the return of fuch habeas corpus, and an examination
44 then to be had, to detain him for the caufes herein before a:iigt:ed,
Se8rj±.44 If.any perfon fluil harbour or fecrete any feaaian or r.-»a-
eSl riner belonging to any (hip or veflel, knowing them to belong lhei«-
*•' to. every fuch perfon, ©n coavidlion thereof before any court in the
>4* city, town or county where he, (he or they raayrtfide, (hall forfeit
.44 and pay ten dollars for every day which he. (he cr they (hall con-
v44 tinuc fo to harbour or fecrete fuch feaman or mariner, one half to
■ 84. the ufe of the perfon profecuting for tksfame, the othpr half to the
,C4 ufe of the United States ; and no fum exceeding one o'ollar, (hall
• ?* be recoverable from any feaman or mariner by any one perfon, for
fet any d?bt, cor.trafted during the time fuch feaman or mariner
48 fna!I actually belong to any (hip ©r vsffd, until tb« voyage for which
«84 fuch feaman or mariner engaged, (hall be ended.
Setf. 5. 44 If any fearaar. or mariner, who (lull have fubferibed fuch
44 contnft as is hereinbefore defcribed, (hall abfcr.t himfclf Irom on
44 hoard the (hip or veftel in which he (hall fo have (hipped, without
r44 leave 9C tbc maftcr, or oSicer commanding ran board i,and the mate
48 or other officer having charge of. the log book, /hall make an entry
■" therein of the name of fuch feaman or mariner, on the day on which
84 he (hall fo abfent himfclf, and if fuch feaman or mariner (lull re-
44 turn to his duty within forty-eight hours, fucb feaman or mariner
44 (lull forfeit three days pay, for every day which he ftall fo ablent
44 himfelf, to be deduced out pf his wages ; but.if ,an,y feaman or
44 mariner (hall abfsnt himfelf for more than forty eight hours at one
«44 time, he (hall forfeit all the wages due to hint, and all his goods and
44 chattels which were on board thefaid (hip or vcfiel, or in any (tore
44 where they may have been lodged at the time of his defertion, to
44 the ufe of th« owners of the (hip or vcffel, anJ.rcioreover (hall be li-
.44 able to pay to him or them, all damages which he or they may fuf-
44 tain by being obliged to hire other fcamcn or mariners ,in his or
44. their place,, and fuch damages ftall be recovered with cods in any
44 court or before any juftice ©r juftices having jurifdi&ion cf th,e re-
r*4 covery of debts to the value of ten dollaii cr upwards.
Seft. 6. Fjtery feaman or mariner (hall be entitled to demand and
<44 receive frftn the maltsr or commander of the (hip of refteito which
toy
(24) Duties of a Juflice
(Appzndi^
No. a.
SEAMEN.
" -tkey beldng, ore third part of the wages which fhall be due to him
" atevery port where fuch ihip or veffel fhili ur.irie and deliver her
'* cargo before the voyage be ended, unlefs the -ontrary beexprefsly
•* flipulated in the contract; and as foon as ttt vo) age is ended, and
*' the cargo or ballaft be fully discharged at tnc lai* port of delivery,
' every feaman or mariner liiall be entitled to the v. ages which fhall
«' be then du£, according u> his contrail; and f fuch wages fii?i 1
t " net he paid within ten days after fuch difcharce, cr if a^y difpute
*' fhall aide between the it. after and A ana • 1 ..r manners touch:rg the
•* faid wages', it fhaii be k-rful fur the jw c' V f> Ji'irift whets the
•' faid Hiip or veffel fhall be, or *n tdc h:v 1 eii.Lncc be more than three
" miles from the place, or of 1 is ablence ttos t tie place of Lis refi.
" dence, then, for any jiuLe ot ju'hce of thepra„s., to fummcn the
mailer cf fuch fhip or Vclfel to appaar before h'io, lo fheiv caufe why
*' proccfs f'uulci not i/iue agJnft fuch flrlp or vefTsl, her tackle, fur-
rd'uie and appaiei, accoidir.g to the CuUrfc of admit ally courts, to
ar.i'wer tor lae laid wages j and if the mahr.r fUull neglec'l to appear
'♦* or appearing fhall r.ct ih;w that the wages are paid, or oihciwffe
4 faukfied or ioiEtiitd ana if the matter in ihfpute lhall not belcrth-
with fettled,"in fuch cafe the judge cr jaliuce fhali certify to the
, *% clerk of the cdurt of the uiiliiel. that there is f'uffiricnt caufe of
*'• complaint whereon to found admiralty procefs, and thereupon the
" clerk of fuch cour4 fhall iffue procefs againff the faid fhip or vefTcl,
" and the fuit fhall be proceeded ori in the faid court, and final iudg-
44 ment be given according t^'the couife of admiralty courts in fuch
" 44 cafes ufed, Shd in fuch fuit all the feamen or manners (having cauJe
*' of complaint of the like kir.d agsinlt the fame fhip or vefbl) fhall
•* be joined as complainants, and it fhall be incumbent on the ru3ltcr
Li or commander to produce the costrafl and log book, if required, to
44 afcer 1 am any matters in difpate, otlicrvrife the complainants fliall
44 he permitted to Hate the contents thereof, and the pi oof of the con-
44 traiy fii*'.! lie on the mailer or commander.* but nothing herein
«< c untamed fhall prevent any feaman or mariner from having or uaaip-
" mi »ing any a&ion at common law for the recovery of his wages,
»' crl-om immediate procefs out of any court having admiralty ju.
44 rifdii'icn, wbe;ever any fhip or veiled may be found, in cafe fire
44 fu;-.ii have left the port cf delivery where her voyage ended before
«e payment tf the wages, or ia cafe fhe fhall be about to proceed to
•* fea before the end oi the ten days next after the delivery of her
<4 cargo or b rllaft.
Se<f< 7. "If any feaman or mariner, who fhall have figned a con-
« trail to perform a Voyage, fhall at any port or place, defert cr fhall
" ablc-nt hin.felf from fuch fhip or veifel without leave of the maker
« cr clEcer dcrmh&nding in the abunc^ of the maker, it fliall be JiW.
•« ful for any iudice of peace within the United States (upon the
" complaint of the mafti r) to iiTue his warrrnt to apprchr r.d fuch
•* deferter, and bring him bciore fuch juftice 5 and if it fliall then
" appear by due proof, that he has f gned a cootra6l within thr intent
" and meaning 0/this aht, a.id tl.ai ;lu Voyage agreed for is not
kiiiiTi.d
AlNo.N2*X} un^r the Laws of the United States, (25)
SEA M E N.
44 finifhcd, altered, or the contract otherwife diflolved, and thTt farh
44 feaonn or mariner has diferted the Ihip or v:iTl1, or abi< n ed him-
*• fclf wi.hout leive, ,the fail jutUcc ill ail coruimi hino'toth'. hou&of
44 corre&un or common giol ol the city,'town or place, theie to re-
4<- main umil tha fjid ih p or veilel ill. 11 bv ready to procceu on her
«<• voy »g?, or rill the muter fliril require his discharge, and, then to
«' be dtlivereJ totfee fai l u.atl-r, he pavi ig all the colt of iuch com-
" n»i m.nt, and deJucling the lame out ot th« wages due to iucii
44 fei.t'ti or mutiiser
Sect. 8. *' Every Ih'p or v iT.1 belonging to a citizen or citizens of
" the U iitrd t>tats.s, of the burthen of one hundred and fifty tons
44 upwards, navigated bv ten or njoit perfocs in the who'e, and bound
14 on a voyage wit our the limits of the United biat's, ill II be pro-
44 vided with a chert of me hemes, put tip by fome apothecary of
known reputation, and accerflpa redjiv diitflions for adminifter-
** ing the fum.-; and the faid medicines ihall be examined by the fame
f* or form. Oilier apo'becary. once ai lraft in ev*ry year, and iupplied
44 with frefh raedic nes iw the place of fuch as fliall have been ufed or
44 fpoiled j and in default of haviwg fuch medicine eheft fo provided,
44 and kept fit for ule, \hemafter or commander ot fuch Ihip or veflH
44 Stall provide and pay for all iuch advice, medicine, or attendance
44 of phyficians, as any of the crew fhall Hand in need of in cafe of
44 iickuefs, at every port or place where the ihip or veflel may touch
44 or trada at during the voyage, without any dedu&ion from the
*' wages of fuch fick fjaroa-a or mariner.
. Se8. 9. 44 Every ihip or veflel belonging as aforefaid, bound oa 4
44 voyage acrofs the Atlantic « cean,' fhall at the time ef leaving tfyo
M laft port from whenee ihe fails, have on board, well iecured under
44 d.ek, at leaft fixty gallons ef Water, one hundred pounds of failed
u flefli meat, and one hundred pounds of, wholtforoe fhip-bread, for
"44 every perfon on board fuch fhip or veflel. over ind befidts fuch
44 other provifions, Sores and live fleck as ff»?ll by the mafler or p if-
fengers be put on board, and in like proportion tor ihrr'er or longer
voyages j and in cafe the ere v of spy ihip or ve;el. which fliailnot
4' have b»en fo provided, fhall b put ijpon iliort allowance in watrr,
44 fit Hi or bread, during the voyage, the mail: r or ow.e- of fuch flip
44 or,veflel fhall pay to each of the crew, one dayb wages beyond the
. wages agreed on. for every day thty ihali be lo put to ihort allowance
44 to be recovered in the fame manner as their Uipuiaud wages.'4
(a) Way rant aga'wjl a feaman er mariner for regie Sling, to render
himfelf en board a vejfel, or for defer ting qfier having Jigned a cetf.
trail to perform a voyage ;—on [eft. a.
Suti of ——, to wit:
"WHKREAS A. C. commander of the —— {describe the rbejjtl
Ijher kind and name% at Jhip, Jloep, <£?r.] of —bath this day made
oemplsist to me J. P. a juflice of the pease for —i- in the ftate afore.
F fa:d
(26) Duties of a 'juflice
SEAMEN.
faid, that B. S. who was bound by contraft to perform a veyage in
the faid (fhip —— or /loop as the cafe may be) from the port
of —— to tne port of », did altogether negieft to render himfelf
on board the faid (hip ■ (or other vejfel as the cafe may be) [or
having rendered hirmelf on board the faid fhip &c. did deferr there-
from fo that the faid fhip &c. did proceed to fea without him :] Thtfe
are therefore to require you to fummon the faiJ B. S. to appear before
me at ■ on the day of —— next, to fhew caufe why the faid
B. S. (hall not forfeit and pay to the mafter, (owner or confignee, as
the cafe may be) of the laid fhip Sic. a fum equal to that which was
paid by the faid A. C. to the faid B. S. at the time of figning the faid
contract, over and befides the ium io advanced and paid. Givea .
under my hand, &c
To ■■ -to execute.
For the forms of judgments and executions, fee title warrants,
in the body of this work.
(b) Warrant to three perfons to view the condition of a veffelbonnd to
a Jereign fort, which is compsair.ed of as unfit for the -voyage
on fe&. 3.
To A. N. B. N. and C. N.
State of ——, —— to wit:
"Whereas a. m. commander of the fhip ■ ■ «■. and b. s. and
C. S. two of the crew of the faid fhip now lying at —— and bound on
a voyage to the port of —— did this day appear before me J. P. 3
juftice of the peace for in the (late of -, and gave me infor-
ma.'ion that in the opinion of A. M. mate of the faid (hip and a ma*
Tority of the crew of the fame, the faid (hip is too leaky [or if unfit in
her crew, tackle isc. mention iV.j to proceed on her intended voy-
age, and hath aifo made application to me to have the fame viewed, ac-
cording to the diitdtions of the aft of the Cor.grefs of the Urited
States in that cafe made and provided t 1 hefe are therefore to icquire
you forthwith to repair on board the faid (hip , and to examine
the fume in refptft to the defeats and inefficiencies complained of,
pnd to make report to me in writing under your hands, or the hands
cf two of you, whether in any and wr.at rtfpeft the faid (hip , is
unfit to proceed on the intended voyage, and what addition of men,
provilionsor (fores, or wnat repairs cr alterations in the body, tackle
©r appa.el will be neciflary. Given under my hand this—'day of —
in the year — and in I he —year of the independence cf the United
"laiCS' (c) REPORT of the VIEWERS.
State of—, to zvit:
In purfuancc of a warrant to us dirc&ed by J. P. a juflice of the
peace
^no'T"} un&er rfje ^aws of (be United States. (27}
SEAMEN.
peace for —— in the Rate aforelaid, we have this day repaired oft
board the fhip now lying at —— and bound on a voyage to the
port of ——, and having carefudy examined into the feveral defers
& infufficieni its complained of by themateand a majoriiy of" the crew
of" the laid lliip ■■■ , do report as follows, viz. [here make thereport
fpecially, and offuch things as are requit eii in the rnagifirates warrant j
On this report the magistrate is toend«ufe his judgment, and of
fuch objeils as are prescribed by the above fcflion.
The coils and damages attending the view are to be taxed by
the raagiltraie, on a fair copy of the proceedings.
(d) Warrant to commit a feaman to prifott who refufes to proceed on,
the intended voyage ajtcr the Jhip is fit for J ea.—en feti 3.
State of ——- to wit!
To the Keeper of the Jail for ■ ■ ■
HEREAS A M. commander of the (hip now lying at
■ , and bound on a voyage to the port of , did make applica-
tion to me J. P. a juftiee of I he peace for the county of ■ to fffue
my warrant direiled to three men in the neighbourhood the moll: Ikil-
ful in maritime affairs that could be procured, it) order to have the
condition of the faid fhip viewed, according to the ait of the Congrefs
of the United States, in that cafe made and provided, he the faid A.
M. accoitipanyed by two of the crew of the faid fltip, having given
me information, that in the opinion of the mate, and a majority of
the crew of the faid fliip, fhe was unfit to proceed on her intended
voyage j and whereas in confluence of the faid application, I did
accordingly iffuemy warrant direitcd to A. N. B. N. and C. N. re«
quiring them to report to me the defeils and infufficiencies complained
of in the faid fliip, by the mate and a majority of the crew of the fame j
and it being my judgment upon the report of the faid A.N. B.N.and
C.N. that the faid fhip ■ » was fit to proceed on her intended
voyage, I did f ndorfe fuch judgment on the faid report, and direct
the mafffr and mariners of the laid fhip, in all things, to conform
thereto 5 but A S. B. S. &c. crew of the faid fhip doth altogether
rcfufe to proceed on the intended voyage s Thefe are therefore to re.
quire you to receive the bodies of the faid A. S. B. S. &c. into your
jail and cufiody, and l hem therein fafely to keep without bail or
mainprize until they (hall have feverally paid to the faid A. M. dou«
blc the Aim advanced to them refprflively, at the time of figning the
faid original contrail for the aforefaid intended voyage, 10 wit, until
they fliall pay the fum of ——, alfo the fum of ———, luing the
reafonable ccfts attending this warrant. Given under my hand and
leal this— day of —— in th® year — and in the —year of
the independence of the United States of America.
Note.—If the fesmen are rot already in cuftody this If ff precept
fhould be preceded by a warrant to brirg the accufed party before n,
juflice of the peace.**——This warrant may eaf.ly be drawn, by ob .
ierving the formal parts of the lalt precedent,.
(/) Warrant
(IS) Duties of a Juflhe {A"o.T?
SEA M E N.
(') Warrant againfi a Seaman for ahfcntixg bimfelf
from on board a vefjcl..
State of ——, to <cvif:
OMPLAINT being- this day made LPs jurfice efthe
p.»ae- for r> tns ftite of • by A. M ir."uW cf ;he ih;p
*ow lying at ■ that B. S. one ~<f »iis ftair^.n of the fjid fh<7>, who
had figned a contrail for average in 'be fa:-' Chip 'rem the purl of
to the port of —— did atfcnr h'mftlf from in ro.tr.1 'he fa id
fhip for the fpaccof , as app'.rrs hy an entry in >he log book c$
the faid (hip. Thcfe a^c *hereb?rv :to rcqnre you T-funsmoti the fai'4
B. S. to appear before me at — - op. ihs d .y of next, fa
fhew caufe why he fhouid riot forfeit ard p.:y ike fo--fe'<ture de '
pendi on the leng'b of tvr/s the f'aman is abfents the warrant ma $
vary accordingly J and mofover ad inch dan. ages as the (aid A, M.
fliaiJ have fu'tamed it) confeqlience ot being obliged to hire other lea-
men in the place of the faid IS S. and do you rbtn and there make re-
torn how you baye executed this warr»nt. Given, kc.
To —— to execute.
judgment. _
On hearing the matter of the wiibin ccmplsint it is considered,
that the faid B. S. forfeit and pay Unt© the faid A. M. the fum of =
[(according to the nature of the caje] aifo the fjm of (or damage's
2nd the further fans of for the colli of this warrant. J. P.
(f) Warrant for a Seaman* swages—on Jeff. 6.
State of——,— to wit
Whereas p. s. cne of the Teamen of the —— now lying at
—— commanded by a. M» hath this day made complaint to me J.
p. a juftice of the peace for — in the ftate aforelaid, (the refidenee
©f the judge of the diffridt of the United States, being more than
three miles from the place where the faid veflel lies, i that the faid
(veffel) —— hath performed the voyage for which the faid li. S.'
contrafted, and the cargo and ballaft of the faid (veffdj — hath
been fully difcharged at the Jail port of delivery, more than ten days
paft, and that there is now due to the faid B. S. the fum of ■ fur
his wages in performing the faid voyage, agreeable to contrail which
the commander of the faid (vefTel) doth refufc to pay : thcfe £<e
therefore to require you to fumrnon the faid A. M. to appear before
me, at - on the ■ day of kc. te fhtw caufc wbv procefs fhould
not iffue agair.ft the faid (vtflel) her tackle, furniture and app3rel,
according to the courfs of admiralty-cent ?s, to aafvycr for the faid
wages ; and then and there make return how you have executed this
precept. Given under my hand, at —— &c. '
yo ■■ to cxecote. Not?
AJ^N®I|C} under the Laws of the United SJates> (a<j)
SEAMEN.
Note—If the application is for one third of the wages, to which
the feamen are entitled on their touching at a port and delivering the
velTcl's cargo, before the voyage is ended, the fame proceedings arq
to be had as in the lall csfe — I he above warrant may alfobe adopt-
eel with fuch variations as will fuit the cafe.
(g) Certificate of the Magijirate.
I J. P. a juftiee of the peace for — in the ftate cf —, do here-
by eerti fy that on the appiici'ion of U.S. one of the feamen of the
Ihip, filoop &c ) r— or —— commanded by A. M. now lying at
■> , for wages due from the laid commander to the laid B. S. I
iflued my warrant nqauing the faid A. M. to appear beiore me, and
Ihew caufc why proctis, according to the courle of admiralty courts
fhculd not :ffue again If th - &ip flloop &c ) — her tackle, furniture
and apparel, to anfwer tor the laid wages; but the faid A M failing
to appear [or appearing, failing to (hew that the wages are paid, or
otherwife fatisfied or forfeited,] it is therefore my opinion that there
is Ihffinent caufe of complaint whereon to found admiralty procefs.
Certified this ■ day of ■■■ in the year ■ — and in the ——— year
of the independence ol the United States of America*
To A C Clerk cf the Court of the! v
United States for the diltrift of —— J V
(I) Warrant to apprehend a feaman ahfenting him/elf
from his veffel.
State of —— to <wit :
CtOMPLAINT this day being mad# to me J P a juftiee of the
peace for ——, by A M mailer of the fhip —— now lying at the port
of , that B s one cf the feamen belonging to the faiti Ihip ,
who is bound by centratt in writing to perform a voyage in the faid
fhip, hath defertcd from the faid Ihip, without the leave of the laid
A M : thefe are therefore to require you to apprehend the.faid B S
ind to bring him before me at ■—— on the — day See. to anfwer the
pr'rriles and to be dealt with according to law; and do you then and
there rrske re:urn hew you have executed this warrant. Given &c,.
To — to execute.
fit) Commitment of a feaman who had defertcd, *
State oj ■ , — to wit:
To the Keeper of the Gaol of ■
Wherpas b s ore of the feamen belonging to the Ihip (lloep
&c.) ©f —— ccrr.mandrd by A M, hath been arrcfted by my
v. want, and bioughi befoie ine lor deieribg from the faid fhip, whh
out
(jo) Duties fa JuJiice
f
\ No. a.
SEAMEN.
cot the leave of the faid A M} and it appearing to me from due proof
that tlnr faid XJ. S. halh figned a contrad for periorminga voyage, in
the fsui fhip within the intent and meaning of the aft ot the t ongrefs
of the United Stales, entitled, •« An ad tor the government and re-
*'galntion of feamoi in the rnerch^ius icivKt," dud that the voyage
ag-eed for is not finiftud, altered, or the contract otherwhe diflb'ved,
2nd that the f:iid B. S. hath defected fiom the faid fl-tp ftluop&c.)
—— without the leave of the owner then eof: thtfe are therefoie to
fequito }ou to receive the body of (he faid B. S. into your gaol and
cnitody, and him th.-rein fafely to keep, un:i! the faid fhip —— fhall
b?. re<dy to proceed on her voyage, or until the faid A M fliali require
his-difcharge, and until the fud A M fhall pay the cofls of thib com.
mitment. Given under my hand and leal this —=— day of in
«hr year —» and in the —— year of the independente of the United
States of America.
S P I R,I T S.
13 \r the laws of the United States, i Co«g. % feff. chap 15 feB 3®,
*' In cafi any Ipints fhall be fraudultmly dcpoli.td, hid or conceded
*' in any place whatfoever, with intent to evade the duties thereby
*' impofed upon them, tliey fhall he forfeited. And for the better
*' difcovtry of any fuch fpirits fo fraudulently dtpcliied, hid 01 con-
cealed, it fliall be lawful for any judge of any court of the United
t( States, or either of them, or for any juftice of the peace, upon tea-
•' fonab'.c caufe cf fufpicion, to be made cut to the fatijfaftion of
** fuch judge or jullice, by the oath or affirmation of any perfoa or
" perfotn, by fpccial wairan* ot wai rants Under their refpeilive.
" hands and feafs, to authorife any of the cfF.cers of irfpefiior, by
4< day, in prtfeme of a ccnftabie or other officer of the peace, to enter
" into all and every fuch place or places in which any cf the faid fpi-
" tits fhall he fufpefled to be fo fraudulently drpofittd, hid or con-
*" ceded, and to fcize and convey away any of the faid fpirits whLh
" flu!l be there tound fo fraudulently depoiited, hid or concealed, as
" atorefaid."
IVarrant cf a Magi fir ate to ft arch fcr ccr.ce ale d Sprits'.
State of , —.— Ccur'j, to wit:
V/URPEAS I have r«sfom.Me caufe to fufpefl, from the oath of
cf &c. that certain fpiiits ate tor.ctaled in the houfe of —— of
t;r. with insert to evade the duties impofed upon tl.<rn by the lavs of
♦he United Sta-es : Thcfe are tl trefcre to 3uthorife A. S. an officer of
iufjitfBop of fcc. \htre r>nh',io>i the jwvty Sfc. of t!.e officer] by day
iirci rn the prtftnee of a eonfisblr or other peace cfficer, to enur in
the iiid houle of the fsid of &c, and to fcize and carty away
cr.y cf the faid fpiiits vilkh lhaii be th.ie found 10 h«.udulently con-
^h/N2DIX} liJl^€r the Laws ef ibe United Stdies. (31)
SPIRITS.
eealed. that the fame may he proceeded with as dire&ed by the laws
of the United States in that cafe made and provided. Given under
my hand and feal, this day of in the year * and in the
«■ ' year of the independence of the United States of America.
T~ R E A S O "N!
13 Y tie la<ws ef the United States, 1 Cong, i/ejf. cbap.q. fafi.i.
,4 If any perfon or perfons owing allegiance to the United States of
44 America, /hall levy war againft them, or /hall adhere to their etie-
44 mics. giving th-rn aid and comfort within the United States or
44 elfewhcre, and /hall be thereof convifled, on conk/lion in open
44 court, or on the teflimony of two witntffes to the fame overt a&of
* the treafon whereof he or they /hall (land indi&ed, fuch perfon or
44 peifuns /hall be adjudged guilty of treafon againft the United States
44 and fhall f'ufFer death."
Sett* ». 41 If Any perfon or perfons, having knowledge of the
44 comnri/fion of any of the treafons aforefaid, fhallconce.il and not
44 fofoon as may be, make known the fame to the Prefident of th»
44 United States, or fome one of the judges thereof, or to the Pre/i-
44 dent or Governor of a particular/tare, or fome one of 'he judge#
44 or juftices thereof, fuch perfon or perfons on conviction (hail be
44 guilty of mifpri/ian of treafon, and (hall be imprifomd not exceed*
44 ing feven years, and fined not exceeding one thou/and dollars **
By the above recited lana,Je£t. %%. " Any per/on who /hall be
44 accufed and i»di£l d of treafm, /hall have a copy of the indiSt-
14 ment, and a lift of the jury and witne/Tes to be produced on the trial
44 for proving the faid indictment, mentioning the names and place#
44 of abode of fuch witneffes and jurors, delivered unto him at lea/t
44 three entire days before he /hall be tried for the fa me j and in other
44 capital offences, ftiall have fuch copy of the indictment and lift of
44 the jury two entire days at leaft before the trial j And every perfon
44 (o accufcd and ir.difltd for any of the crimes aforefaid, Ihafl he
44 allowed and admired to make his full defence by Counftl learned
44 in the law, and the court befote whom fuch perfon fhall be tried,
44 or fome judge thereof, /hall. ai,d they are hereby anihori/ed ami
44 required immediate ly upon his req 'eft to a/fign to fuch perfon fuch
44 counfel, not exceeding two, as luch ptrfen lhall defare, to whom
44 fuch cuun/el /hall have free accefs at all ftakmable hours; and every
44 A'cl« perfon or perfons accufed or indi&ed, of the crimes cforefeid,
44 /hak !be allowed and admitted in his faid defence to make any
44 proof that he or they can produce, by lawful witnefs or witlicfFes,
44 and (hall have the rike proce/sof the court where be or they (ball
44 be tried, to compel his or their witneffes to appear at Ms or tbehr
44 trial, as is ufually granted to compel witnelics to appear on the
44 proftcUtion againft theni.''
The peceder.ts under title 44 forgery" in this Appendix maybe a*
•copied Ltrc, with fuch vatiatisns as ty'tl! cxpiefs tut ciiatcoi Trtflfsn-
The
(32) Duties of a J-i/tice&c. {
Fh£ following joints refpe'firg criminal profctr^s undrr
the laws of the Unite J otaf », no? tailing unVrany pattuular head,
Were relerved for the conclulion of this Appendix.
BY the laws of the Unit el Slates 1 Cory. 2 fef. cbit>. r.fcft. jr.
* No perfan or perir., 3 h-m be profecuie I, cried or pablihed ftr tr<"a-
'■* fon or other capital oiLare.. wilful minder or to.gery excepted,
" unlcfs thr, indict.*ie<it for the lame ihall be found by the grand jury
" within thresy'^rs next 4% r the tiedoa or capital offence atare-
" laid Jhall b; J me or committed } ror fhall any perfon be profe-
" cutcd, tried or uninnrd for a<v offence not capital, nor for any
,k fine or forfeiture u > ler any penal ttatute, onlefs the indi&ment or
11 information for the Linr fhvi be found or inlfituted within two
" years from the time of committing the offence, or incurring the
u fine or forfeiture atorefaid t Provided, That nothing herein con-
u tained flull extend to any perfon or pcrfons fleeing from jurficc.**
Setl. 3a. " Thr manner of inflicting the punifhmcnt of death,.
41 fhall be by hanging the perfaa convi&ed, by the neck, nnttl
4t dead.
Seft. 24. " No coovi^ion or judgment for any of the ©fences*
aferefaid, fhall woik co:raptiw& of blood, or.any forfmuie of
** eftate.'
" . vs