A TREATISE 
 
 ON 
 
 CRIMES AND MISDEMEANORS, 
 
 BY 
 
 SIR WM. OLDNALL RUSSELL, KNT, 
 
 LATE CHIEF JUSTICE OF BENGAL. 
 
 IN THREE VOLUMES. 
 VOL. III. 
 
 Jfi£tlj d- bit! on. 
 
 BY 
 
 SAMUEL PRENTICE, ESQ., 
 
 ONE OF HEE MAJESTY'S CX)UNSEL. 
 
 LONDON : 
 
 STEVENS & SONS, 119 CHANCERY LANE, AV.(\ 
 
 H. SWEET, 3 CHANCERY LANE. 
 
 W. MAXWELL & SON, 2<) FLEET STREET. 
 
 1877.
 
 
 LONDON : 
 BIL^DBURY, AONEW, <fc CO., I'KINTERS, WUITEFRIAKS. 

 
 TABLE OF CONTENTS 
 
 THE THIRD VOLUME. 
 
 BOOK V. 
 
 OF OFFENCES WHICH MAY AFFECT THE PERSONS OF 
 
 INDIVIDUALS OR PROPERTY. 
 
 CHAP. PAGE 
 
 I. Of Perjury and Subornation of Perjury . , .1 
 
 II. Of Conspiracy . . . . , .109 
 
 III. Of Libel and Indictable Slander , . . 177 
 
 IV. Of Threats and Threatening Letters . . . 231 
 V. Of Bigamy 2U 
 
 BOOK VI. 
 
 OF EVIDENCE. 
 
 I. Of what Nature Evidence must be. Of Presumptive 
 Evidence, p. 320. Of the rule that the best Evidence 
 must be produced, p. 327 — and of Hearsay Evidence, 
 p. 349 . 
 
 II. Of the Proof of Negative Averments, p. 366. The Rule 
 that the Evidence must be confined to the Point in 
 Issue, p. 369. What Allegations must be proved, and 
 what may be rejected, and therewith of Surplusage 
 and Variance, 391 . 
 
 III. Of Written Evidence ..... 
 
 IV. Of Confessions and Admissions, p. 440. Statements of 
 
 Accused before Magistrates, p. 499 — and of Depu.si- 
 tions, p. 510 . 
 
 318 
 
 365 
 407 
 
 440
 
 iv Table of Contcnl^ 
 
 II \r 
 
 \'. Of Witnesses. What Fucts Witnesses may disclose, and 
 wliiit are I'rivileged Coniniunications, p. ;"3.'}f). How 
 Witiie.sses are to be oxaniiiied, p. 557. Plow tlie 
 ( 'redit of" Witnesses may be impeached, p. 572. How 
 many Witnesses are sufficient, p. 594. How the 
 Attendance of Witnesses is to be compelled and 
 remunerated, p. 595. Of Accomplices, p. GOO. And 
 what W^itnesses are competent to give Evidence, 
 p. Gil . . . . 5.S9 
 
 Addenda et Corrigenda ..... G.'U 
 
 Appendix of Statutes ..... Go7
 
 TABLE 
 
 OF THE 
 
 PRINCIPAL STATUTES CITED 
 
 IN 
 
 THE THIRD VOLUME. 
 
 EDWARD I. 
 
 3. c. 34. Libel against the King 
 2L st. L Conspiracy 
 33. St. 2. Conspiracy 
 
 EDWARD III. 
 
 4G. Records 
 
 EDWARD VI. 
 1. c. 1. Reviling Sacrament 
 
 ANNE. 
 
 TAGE 
 198 
 
 110 
 110 
 
 427 
 
 194 
 
 PAGE 
 
 ELIZABETH. 
 
 1. 0. 2. Prayer book . . .194 
 5. 0. 9. Perjury . 23, et seq. 24 
 
 29. c. 5, s. 2. Perjury . . 23 
 
 JAMES I. 
 
 21. 0. 28, s. 8. Perjury . . 23 
 
 WILLIAM III. 
 
 1. c. 18, s. 17. Doctrine of Trinity 194 
 
 7. 0. 3, s. 7. Witnesses f^r prisoner 598 
 
 7 & 8. c. 34. Perjury— (^inkers . 25 
 
 8 & 9. 0. 1 1. Death of party to suit 
 
 9 & 10. 0. 32. Christian religion . 194 
 
 1. St. 2, c. 9, s. 3. Witnesses for 
 
 prisoner . 598 
 
 GEORGE L 
 
 8. c. 6. Perjury — Quakers . 26 
 
 GEORGE 11. 
 
 2. c. 25, s. 2. Perjury . 25, 101 
 22. 0. 46. Perjury — Quakers , 26 
 
 GEORGE III. 
 
 13.0.63. Evidence, witness abroad 536 
 39. c. 79, s. 29. Persons printing 
 
 papers for profit 216 
 39 & 40. c. 93. Treason — \Vit- 
 
 nesscs . .595 
 
 41. 0. 90, s. 9. Printed statutes 
 
 evidence . . 407 
 
 42. c. 85. Witnesses abroad . 600 
 
 43. c. 140. Haltcas corpus ad tes- 
 
 tificandum . . o'JS 
 
 45. c. 92, s. 3. Subpouna . . 596 
 
 46. c. 37. E.xaminatiou of wit- 
 
 nesses . . .560 
 
 53. c. 127. Excomnnniication 
 
 evidence . . (> 1 7
 
 VI 
 
 T<iJ>I(' of thr I'rincipal Sidlufcfi 
 
 CKOIKJK IV. 
 
 VICTOIUA. 
 
 TAOn 
 
 3. c. 11 1. IVrjury— rimishinent l'."i -' <k ■''• c. 11. I'rintcr'H names on 
 
 - c. ill. llanl lal)uur- I'LTJury 101 
 
 4. c. 91. Mumagos . 272, 278, :510 
 
 5. c. .'52. Man iiiges . . 275 
 
 - c. 1)5. ComUuiations of \v(jik- 
 
 mcii . . .159 
 
 (i.e. 129. Cuinhinat inn of work- 
 men . . . 150 
 7. f. Gl, s. 4. Examination, &c., 
 before coroners 
 
 500, 533 
 7 & 8. c. 28. Criminal law . 
 9. c. 15, s. 1. Variances amend- 
 ment 
 
 - c. 32, ?. 1. Affirmation of 
 
 Quakers 
 
 books . . 217 
 3 k \. c. 0. Libel — Parliamen- 
 tary^ papers l^^O, 187 
 C.72. Marria;,'e3 . 287,288 
 
 5 k G. c. 38. (Quarter sessions 
 
 jurisdiction 71, 142, G40 
 
 G & 7. c. 12. Coroner's inquests G41 
 
 c. 37, s. 15. Marriages . 303 
 
 c. 85, s. 1. Competency of 
 
 witnesses . G18 
 
 G37 ' 7 k 8. c. 2. Trial of ofteuces . G41 
 
 j 0. yi. Marri aires in Ireland 308 
 
 2G 
 
 WILLIAM IV. 
 
 3 & 4. c, 49. Perjury, Quakers 
 and Moravians 
 Competency 
 
 ■ c. 82. Separatists wit 
 
 nesses . 2Q, GIG 
 5 it G. c. G2. Abolition of Oaths 
 
 Act . 28, et seq. 32 
 G & 7. c. 85. Marriages 
 
 278, et seq., 281, etseq. 
 
 c. ^(S. Register of births 
 
 etc. . 314,425 
 
 c. 114. Prisoner's Counsel 
 
 Act . 
 
 s. 1. Defence by 
 
 counsel in felo- 
 nies 
 
 s. 2. In siimmary 
 
 convictions 
 s. 3. Copies of de- 
 positions . 429 
 
 s. 4. Inspection of 
 
 on trial . . 429 
 
 44 8 & 9. c. 113, s. 1. Public docu- 
 
 I ments evidence 411 
 s. 2. Courts to no- 
 tice signatures 
 of judges, &C. . 411 
 s. 3. Private sta- 
 tutes . 407, 408 
 9 k 10. c. 95, s. 111. County 
 2G Courts Act 419 
 GIG 11 & 12. c. 42,8.17. Depositions 50G, 511 
 1 s. 18. Examina- 
 tions of prison- 
 ers . . 500 
 
 s. 20. Return of 
 
 depositions . 501 
 
 s. 27. Copies of 
 
 depositions . 430 
 s. 28. Forms in 
 
 429 
 
 429 
 
 VICTORIA. 
 
 1. c. 22. :Marriages . 279, 281, 287 
 c. 92. Register office re- 
 gisters . . 426 
 
 c. 94. Copies of records . 41 G 
 
 c. 105. Perjury, obliga- 
 tion of oaths 26, 615 
 1 ct 2. c. 77. Perjury, Quakers 
 
 and Moravians 2G 
 
 schedule . 501, 512 
 
 — c. 78. Crown cases re- 
 served . 318, 642 
 
 — c. 109, ss. 11, 13. Ciian- 
 cery Connnon 
 
 j Law Seal . 417 
 
 429 ' 13 it 14 c. 21, s. 4. Affirmation 617 
 
 s. 7. All statutes 
 
 public . .407 
 
 14 k 15. c. 97, s. 25. Mamages 304 
 
 0. 99, s. 2. Competency 
 
 of witnesses 
 
 s. 7. Foreign acts 
 
 of state . 
 
 ss. 9, 10. Docu- 
 ments admissi- 
 ble in England 
 and Ireland, 
 kc. . 
 
 s. 13. Previous 
 
 conviction 
 
 s. 14. Examined 
 
 copies 
 
 619 
 
 420 
 
 423 
 415 
 427
 
 cited in the Third Volume. 
 
 Vll 
 
 VICTORIA. 
 
 PAGE 
 
 14 & 15. c. 99, s. 16. Perjury— 
 
 Oaths . 3, 617 
 
 c. 100, s. 19. Perjury pro- 
 secutions, costs 34 
 
 ss. 20, 21. Indict- 
 ments for per- 
 jury, &c. . 35 
 
 s. 22. Certificate . 
 
 of trial, &c. . 34 
 
 s. 23. Venue . 403 
 
 s. 24. Time, price, 
 
 value . 404, 405 
 
 s. 29. Conspiracy 
 
 — Punishment 
 
 16 cfe 17. c. 30, s. 9. Witnesses . 
 
 c. 83. Competency of 
 
 witnesses 
 
 c. 99. Penal Servitude 
 
 17 cfe 18. c. 104, ss. 207,518. Costs 
 s. 270. Evidence 
 
 c. 83, s. 27. Stamps . 
 
 158 
 597 
 
 620 
 644 
 536 
 536 
 438 
 27 
 27 
 
 c. 125, s. 20. Affirmations 
 
 • s. 21. Perjury . 
 
 19 ck 20. c. 54. Grand jury . 617 
 c. 96, s. 1. Marriages, 
 
 Scotland . 306 
 
 0. 119. Marriages, 28, 288, 
 
 289 
 20. c. 19. Marriages . . 294 
 
 20 & 21. c. 3. Penal Servitude 646 
 
 c. 77, s. 2. Probate Act 418 
 
 c. 85, s. 13. Divorce Act 418 
 
 22 (k 23. 0. 17. Vexatious indict- 
 
 ments . . 72 
 c. 33. Copies of depo- 
 sitions . . 430 
 
 c. 63. Law in diffei'ent 
 
 parts of the 
 Queen's domi- 
 nions . . 423 
 
 23 & 24. c. 18. MaiTiages, Quakers 279 
 c. 127, s. 22. Law List, 
 
 Evidence 
 
 24 & 25. c. 11. 
 
 — c. 66, 
 
 - 0. 94. 
 
 - c. 95. 
 
 - c. 96. 
 
 Law of foreign 
 countries 
 s. 1. Afiirmation, 
 
 s. 2. Pevjuiy 
 Accessories 
 Repeal of Acts . 
 Larceny Act 
 s. 44. Letter de- 
 manding money 
 with menaces . 
 
 411 
 
 423 
 27 
 617 
 27 
 648 
 649 
 654 
 
 234 
 
 VICTORIA. 
 
 24 ik 25. 0. 96, s. 45. Demanding 
 money with me- 
 naces 
 
 s. 46. Letter threa- 
 tening to accuse, 
 ttc. 
 
 s. 47. Accusing, 
 
 itc, of crimes . 
 
 s. 49. As to me- 
 naces 
 
 s. 98. Accessories 
 
 s. 115. Offences 
 
 at sea 
 s. 117. Sureties, 
 
 etc. 
 
 s. 11 8. Hard labour 
 
 s. 119. Solitary 
 
 confinement . 
 
 — c. 97. Malicious injury 
 
 to property 
 s. 50. Letters threa- 
 tening to burn 
 s. 77. Costs 
 
 — c. 98, s. 54. Costs 
 
 — c. 99. Offences relating 
 
 to the coin 
 
 — c. 100. 
 
 s. 57. Bigamy . 
 
 ss. 73, 74, 75, 77. 
 
 Costs . 671, 
 
 27 k 28. c. 19, s. 63. Discipline 
 
 of the navy 
 
 c. 47. Penal Servitude 
 
 c. 97. Registration of 
 
 Burials . 
 28. c. 18. Evidence and Practice 
 
 28 & 29. c. 18, s. 3. Discrediting 
 
 witness . 
 
 s. 4. Contradict- 
 ing witness 
 
 s. 5. Cross-exa- 
 mining witness 
 
 s. 6. Previous con- 
 viction . 
 
 s. 7. Attesting wit- 
 ness 
 
 s. 8. Comparison 
 
 of writing 
 
 c. 63. 
 
 c. 64. Marriages 
 
 c. 124. Admiralty 
 
 30 il: 31. 0. 35, s. 3. Witnesses 
 fur prisoners 
 
 PAGE 
 
 234 
 
 235 
 
 235 
 
 236 
 236 
 
 056 
 
 236 
 
 236 
 236 
 
 236 
 
 661 
 
 233 
 
 632 
 667 
 
 668 
 670 
 264 
 
 672 
 
 5 
 
 672 
 
 426 
 676 
 
 503 
 
 431 
 
 431 
 
 578 
 
 434 
 
 437 
 420 
 311 
 
 678 
 
 573
 
 viii Ta()l<: <>/ tlw I' riiivl pal Statutes cited in the Tltii-d \'olame. 
 
 VKTOinA. 
 
 30 h 31. c. .V), H. I. 
 
 H. (i. Kxiimiiiiit ioii 
 
 of w itiiosHcs be- 
 fore triiil 
 
 31 k :V2. c. 37. 
 c. 01. 
 
 Docnmeiitary 
 Evidence Act . 
 Consular Mar- 
 riatre Act 
 
 32 k 33. c. 24, s. l\). IVinters of 
 
 Newspapers 
 
 c. 62, s. 14. Debtor's 
 
 Act, 18(50 . .5 
 
 c. G8, s. 4. AHirniations 
 
 in lieu of 
 Oaths . . 27 
 c. 89. Clerks of As- 
 size . . 679 
 
 33 it 34. c. 14. Naturalization 
 
 Act . . 410 
 
 c. 52, s. l."i. Extradition 
 
 Act . . 412 
 
 c. 7.5, s. 83. Education 
 
 Act . . 410 
 
 c 79, s. 2. Post Office 410 
 
 c. 110. Marriages, Ire- 
 land . . 309 
 
 34 t 3.5. c. 31, s. 1. Trades Union 
 
 Act . 159—161 
 
 c. 112. Prevention of 
 
 Crimes . . 680 
 
 I VICTOrjA. 
 
 5 1 :', I 3 1 A- :?5. c. I I ■_', s. 1 .S. Proof of 
 previous con- 
 viction . .416 
 
 534 .35. c. 10, H. 1. Marriages, Quakers 279 
 
 535 36 ct 37. c. 60, s. 4. Extradition 
 Act 
 
 409 37 it 38. c. 42, s. 20. Building 
 Societies Act . 
 
 311 c. 88, s. 8. 
 
 8. 38. Births and 
 
 216 D eaths Keg i stra- 
 
 tion 
 38 «fc 39. c. 35, s. 263. Public 
 Health Act . 
 
 412 
 
 412 
 689 
 
 425 
 
 c. 86. Conspiracy, 161, 166 
 
 39 k 40. c. 20. Statute Law Re- 
 vision Act . 691 
 
 c. 22, s. 2. Trade Union 159 
 
 s. 16. Trade Union 160 
 
 c. 23. Prevention of 
 
 Crimes Act, 
 1871 . . 692 
 
 c. 36. Customs Laws 692 
 
 c. 4.5. Industrial and 
 
 Provident Socie- 
 ties . . 703 
 
 c. 48. Bankers' books. 
 
 evidence, 438, 439, 703 
 
 c. 57. (Winter Assizes . 704 
 
 c. 80. Merchant Ship- 
 ping Act . 706
 
 TABLE OF CASES. 
 
 Abbot V. Plumbe ... 
 
 Abingdon (Lord), Eex v. 
 Abgood, Rex v. 
 Abitliol V. Beniditto 
 Abraham, Eex v. 
 
 Eeg. V. 
 
 Absolon, Eeg. v. 
 Acerro v. Petroiii ... 
 Ackroyd's case 
 Adams, Eex v. 
 
 V. Kelly 
 
 Lloyd 
 
 Synge 
 
 Adamthwaite v. 
 Addis, Eex v. 
 Ahearne, Eeg. v. 
 Aickles's case 
 
 Aitken, Ex farte ... 
 Alcock V. Eoyal Exchange \ 
 Assurance Co. ... \ 
 
 Alder.son v. Clay ... 
 Aldridue, Eex v. 
 
 Alexander's case 
 Alexander v. Gibson 
 Alford, Eex v. 
 
 Alivon V. Furnival ... 
 All Saints, Worcester, Rex 
 Allay r. Hutchings... 
 Allen, Eex v. 
 
 R. V 
 
 V. Westley ... 
 
 Alleyne, Eeg. v. 
 Allison, Eex. v. 
 Almon, Eex v. 
 Alsop, E. V. ... 
 Altass, Eeg. v. 
 Alves V. Bunbury ... 
 Amey v. Long 
 Ampldet, Rex v. 
 Anderson v. Hamilton 
 
 R. V. 
 
 v. Weston 
 
 V. Wlialley 
 
 Andrews, Reg. v. 
 
 V. Cha])man 
 
 Anrjus V. Smith 
 
 A. 
 
 1 Dougl. 216 
 
 1 Esp. Rep. 226 
 
 2 C. & P. 436 
 2 Taun. 401 
 
 1 M. & Eob. 7 
 
 2 C. & K. 550 
 1 F. & F. 498 
 1 Stark. E. 100 
 1 Lew. 49... 
 
 3 C. & P. 600 
 E. & M. N. P. C. 157 
 
 3 H. & N. 351 
 1 Stark. E. 183 
 6 C. e!i P. 388 
 6 Cox C. C. 6 
 1 Leach, 934 
 1 Leach, 290 
 
 4 B. & Aid. 47 
 
 13 Q. B. 292 
 
 1 Stark. E. 405 
 1 N. & M. 776 
 
 3 F. & F. 781 
 
 1 Leach, 63 
 
 2 Campb. 555 
 
 1 Leach, 150 
 
 14 East, 218 
 
 4 Tyrw. 751 
 6 M. & S. 194 
 
 2 M. & Eob. 358 
 E. & M. C. C. E. 154 
 L. E. 1 C. C. R. 367 
 Hetl.97 ... 
 lJear,s. C. C. 506 
 R. & R. 109 
 
 5 Burr. 2686 
 11 Cox C. C. 264 
 
 1 Cox C. C. 17 
 4 Ganqib. 28 
 9 East, R. 485 
 4 B. & C. 35 
 
 2 Brod. & B. 156 (n.) 
 11 Cox C. C. 154 
 
 6 B. N. G. 296 
 
 3 G. & K. 54 
 1 Cox. C. C. 183 
 3 C. & K. 286 
 M. & M. 473 
 
 PAGE 
 
 433 
 
 .182,185, 221 
 246, 253 
 ... 402 
 64,71 
 490 
 1.54 
 558 
 458 
 321 
 214 
 574 
 415 
 605 
 129 
 339,343 
 347, 424 
 543 
 
 570 
 
 324 
 
 152 
 
 438 
 
 3 
 
 594 
 
 47, 88 
 
 399 
 
 336 
 
 622 
 
 594 
 
 333 
 
 268 
 
 2 
 
 318 
 
 313 
 
 215 
 
 11 
 
 12 
 
 419 
 
 J49, 596 
 
 217 
 
 554 
 
 536 
 
 317 
 
 568 
 
 (i03 
 
 1S3 
 
 5!^1 
 
 44,
 
 Tiihlc nfCa^rR. 
 
 Anneslcy, Hex V 
 
 V. Lord Aiiglcflcn 
 
 Anonymous... 
 
 Ansell V. Baker 
 
 Apley, E. r 
 
 Apothecaries Company v. ) 
 
 Bcntlt-y ] 
 
 Ajipli'liy, Rex v. 
 
 A])pk'ton 1'. Lord Brayln'Oi)k. 
 
 Arbon i\ Fussi-ll 
 
 Arding r. Flower 
 
 ArgL'nt, Rex v. 
 
 Armstrong, Rex 1' 
 
 R. t) 
 
 Arnall, Reg. v. 
 Arnold, Reg. v. 
 Arundel Rex v. 
 
 Reg. v. 
 
 AsMmm, Rex i' 
 
 Ash ford r. Thornton 
 
 Ashley r. Harrison 
 
 Ashlon's case 
 Askew, Rex v. 
 Aspinall, Rex v. 
 
 Astley V. Younge ... 
 Atcheson i\ Everitt 
 Atkins n Meredith... 
 Atkinson, Rex V. 
 Attorney-General v. Binvman 
 
 V. Briant 
 
 V. Bulpit 
 
 V. Davison 
 
 V. Hawkes 
 
 x\ Hitchcock 
 
 r. Le:der- ) 
 
 chant ) 
 
 — V. Parntlier 
 
 -oi'NewSontli 
 
 
 l-AOE 
 
 IS Ifow. St.Tr. lOOl 
 
 ... 548 
 
 S) St. Tr. .".;<! 
 
 5IH,.^,52 
 
 1 Veiitr. :i7i» 
 
 4 
 
 1 Hawk. 1'. ('. c. (i!), H. 7 
 
 2 
 
 I Lew. ^71 
 
 ... 42 
 
 1 CoxC. C. 50 
 
 ... 57 
 
 .'') 1',. & A. \Y.V.) 
 
 76 
 
 MSS. j;avlev, J 
 
 ... 119 
 
 1 Cliitt. i{cp. G!J8 
 
 132,156 
 
 7 Q. B. 7!)H 
 
 ... 155 
 
 Hil. T. 1«12 
 
 ... 206 
 
 l(i Q. J'.. 58 
 
 ... 327 
 
 1 (.'ox (J. C. 12 
 
 ... 349 
 
 ()C. &P. 408 
 
 ... 4itO 
 
 12Mod. G07 
 
 ... 433 
 
 2 Den. C. C. 522 
 
 ... 464 
 
 4C. &P. 255 
 
 ... 480 
 
 12 Vin. Ahr. Ev. A. 23 
 
 ... 494 
 
 3 Stark. Ev. 891 
 
 ... 441 
 
 2('hitt. R. 752 
 
 ... 536 
 
 Skiim. 404 
 
 ... 542 
 
 1 Lew. 101 
 
 ... 568 
 
 3T. R. 752 
 
 ... 569 
 
 2Den.C. C. 245 
 
 ... 584 
 
 cor. Rooke, J., at Gloucester 
 
 ... 612 
 
 2F. &F. 789 
 
 ... 612 
 
 11 M. & W. 483 
 
 ... 628 
 
 3C. &K. 145 
 
 ... 346 
 
 1 Cox C. C. 71 
 
 2(;6, 317 
 
 R. &M. N. P. R. 159 
 
 ... 367 
 
 3 Stark. 33 
 
 ... 486 
 
 CM. &S. 34 
 
 ... 419 
 
 3F. &F. 152 
 
 ... 438 
 
 8T. R. .536 
 
 ... 599 
 
 R. & M. C. C. R. 154 
 
 333, 366 
 
 1 Ventr. 304 
 
 ... 119 
 
 13CoxC. C. 184 
 
 ... 631 
 
 8 CoxC. C. 439 
 
 ... 489 
 
 8C. &P. 621 
 
 503,530 
 
 MSS. C. S. G 
 
 ... 471 
 
 4 CoxC. C. 260 
 
 ... 620 
 
 8C. &P. 50 
 
 ... 72 
 
 IB. & A. 428 
 
 ... 320 
 
 1 Esp. X. P. C. 48 
 
 ... 187 
 
 2 Lew. 147 
 
 354, 362 
 
 3M. &S. 9 
 
 l.-.9,319 
 
 3 Stark. Ev. 952 
 
 ... 388 
 
 45 L. J. M. C. 129 
 
 ... 636 
 
 2 Burr. 817 
 
 ... 181 
 
 Cowp. 389 
 
 614,616 
 
 4Do\vh P. R. 658 
 
 341,342 
 
 Ijac. Ahr. Perjury 
 
 65 
 
 2B. &P. 582 
 
 ... 388 
 
 15 M. & W. 169 
 
 ... 553 
 
 9 Price, 4 
 
 ... 571 
 
 1 M'Clel & Y. 169 
 
 ... 513 
 
 1 Tvr. 3 
 
 ... 400 
 
 lExch. R. 91 
 
 586, 628 
 
 2T. R. 201 
 
 338, 342 
 
 3Bro. C. C. 443 
 
 ... 325 
 
 Wales r. Murphy 
 
 11 Cox C.C. 372 ... 
 
 319
 
 Attwood, Reg. V. ... 
 Atwood, Rex v. 
 Audley's, Lord (case) 
 Angustien v. Challis 
 Aunger, R. t;. 
 Austin, Reg. v. 
 Avery, Reg. v. 
 
 Aveson v. Kinnaird 
 Aylett, Reg. v. 
 
 Rex V. 
 
 Azire, Rex v. 
 
 Table of Cases. 
 
 5 Cox C. C. 322 , 
 1 Leach, 464 
 
 1 St. Tr. 393 
 1 Excli. R. 279 , 
 12 Cox C. C. 407 
 Dears. C. C. 612 
 8 C. & P. 596 , 
 1 Cox C. C. 206 
 
 6 East R. 192 
 8 C. & P. 669 
 1 T. R. 69... 
 1 Stra. 633 
 
 XI 
 
 PAGE 
 
 446 
 
 603 
 
 625 
 
 348 
 
 180 
 
 525,533 
 
 546 
 
 603 
 
 352,622 
 
 432 
 
 2, 37, 44, 57, 67 
 625 
 
 Bacon, R. t^. ... 
 
 Bagshaw v. The Boston Local 
 Board of Health 
 
 Bailey, Rex v. 
 
 Reg. V. 
 
 Bailie, Rex v. 
 Bainton, Rex V. 
 Baker, Rex v. 
 
 Baker V. Wilkinson 
 
 Balcetti v. Serani ... 
 Baldney v. Ritchie ... 
 
 Baldry, Reg. v 
 
 Baldwdn, Reg. v. 
 
 BaU, Res. V 
 
 Rex V 
 
 Balls, R.v 
 
 Bale, R. 1' 
 
 Barber, Reg. v. 
 Barker v. Dixie 
 
 Rex V. 
 
 Reg. V. 
 
 Barley, Reg. v. 
 Barnes, Rex v. 
 Barnesley Rioters' case 
 Barnett, Reg. v. 
 Barrett v. Long 
 Barry R. V. ... 
 
 V. Bebbingtun 
 
 Barstow's case 
 Bartholomew, Reg. v. 
 Bartlett, Rex v. 
 
 I^Rg- ^- 
 
 — V. Lewis ... 
 
 V. Pickersgill 
 
 V. Smith ... 
 
 Ba.sing.stoke, Reg. r. 
 Basten v. Carew 
 
 BateiJ. HiU 
 
 R. V 
 
 Batemau v. Bailey ... 
 
 . R. t; 
 
 Bates, Reg. V. 
 
 Bath and Montague's case... 
 Bathews V. Galindo... 
 Bath wick. Rex z'. ... 
 Battiu v. Bigelow ... 
 Baugh V. Cradocke ... 
 Bayley, Rex v 
 
 B. 
 
 11 CoxC. C. 540... 
 
 45 L. J. Chanc. 260 
 
 7C. &P. 264 ... 
 2 CoxC. C. 311 ... 
 Holt on Libel, 173 
 2 Str. 1088 
 2 M. & Rob. 53 ... 
 C. & M. 399 
 Peake, R. 142 ... 
 
 1 Stark. R. 338 ... 
 
 2 Den. C. C. 430... 
 8 A. & E. 168 ... 
 
 6 CoxC. C. 360 ... 
 8 C. & P. 745 ... 
 R. & R. 132 
 
 40 L. J. M. C. 148 
 
 11 Cox C. C. 686... 
 
 1 C. & K. 434 ... 
 Cas. temp. Hardw. 264 
 3C. &P. 589 
 
 IF. &F. 326 
 
 2 CoxC. C. 191 ... 
 1 Stark. R. 243 ... 
 1 Lew. 5 ... 
 
 4 CoxC. C. 269 ... 
 
 3 H. L. C. 395 ... 
 4F. &F. 389 
 4T. R. 514 
 
 1 Lew. 110 
 
 1 C. & K. 366 ... 
 
 7 C. & P. 832 
 
 I Cox C. C. 105 ... 
 
 12 C. B. (N. S.) 249 
 
 4 Burr. 2255 
 
 II M. & W. 483 ... 
 14Q. B. 611 
 
 R. & M. N. P. R. 127 
 
 I C. &P. 100 
 
 II CoxC. C. 686... 
 
 5 T. R. 512 
 
 4F. &F. 1068 ... 
 2F. &F. 317 ... 
 Fortesc. 246 
 4Bing. R. 610 ... 
 2B. &Ad. 639 ... 
 1 Pet. C. C. R. 452 
 1 ^I. & Rob. 182 ... 
 Andr. 229 
 
 10 
 
 633 
 
 41,400 
 
 377 
 
 191 
 
 72 
 
 359 
 
 218 
 
 368 
 
 339 
 
 ...442,444,447 
 
 218 
 
 16 
 
 559 
 
 319,376 
 
 382 
 
 444 
 
 350,437 
 621 
 
 388,576 
 
 339,341 
 
 563 
 
 418 
 
 602 
 
 583 
 
 .'11,223,224,225 
 
 143 
 
 363 
 
 493 
 
 61 
 
 488,503 
 
 621 
 
 574 
 
 19 
 
 439,628 
 348 
 
 559,564 
 592 
 
 449,461 
 350 
 
 447,482 
 
 517 
 
 611 
 
 626 
 
 ...307,316,623 
 
 324 
 
 562 
 
 190
 
 xii T<(hlc of Cdffcs. 
 
 I'AfiK 
 
 J'.aylis, Ro*,'. r 1 Cox ('.('. 23 (ii:i 
 
 r. Liiwroiico I I A. t!t K. 1)20 22"i 
 
 I'.ealc r. Mniils 1 (,'. it K. 1 MJ2 
 
 IJfjimisIi V. I'.i'.-miisli ... !) II. L. C. 274 :i(»ii 
 
 Beaiiiuii c. Ellice 4('. &I'. AS") T)?! 
 
 lleancy, Hex f U. it R. 410 'A'Jb 
 
 Bi'ur, Rexr 2 Salk. 417 2(t5 
 
 Bciire, Rex I'. 1 Lonl Rayin. 417 212 
 
 Beard, Re-,'.?; H (J. & I'. 142 429 
 
 Beanlsall, R. )' 4;") J.. J. M. C. i:>7 032 
 
 Beatsou r. Skene .0 11. it N. 8:}H .'■^)4 
 
 Beaui'oit (Duke of) r. Crawshay 35 L. J. C. V. 342 noo, .',11, .-.23 
 
 Beaumuiit V. Mountain ... 10 Bing. R. 4<)4 4(»7 
 
 Beckwith, Reg, V 7 Cox C. C. 505 431 
 
 V. Sydebothani ... 1 Canipb. 117 ... ... ... ... 570 
 
 Bediler, Rex. v 1 Sid. 237 Oil 
 
 Bedford, Reg. V 2 Str. 78!) ; Gill). 207 198 
 
 Beech's case 1 Leacli, 133 41,219 
 
 Beech r. Jones 5 C. li. 090 507 
 
 Beecliing V. Gower Holt N. P. R. 314 027 
 
 Beeston, Reg. r Dears. C. C. 405 515,528 
 
 Beezeley, Rex V 4 G. & P. 220 502,503 
 
 Bell's case Jov, 71 458 
 
 Bell, Rex f 5 G. it P. 102 300,502,508,509 
 
 M. & M. 441) 431 
 
 Bellamy, Rex f R. & M. N. P. R. 171 46,413 
 
 Bentield, Rex V 2 Burr. 980 179 
 
 Benesech, Rex w Peake Add. C. 93 19 
 
 Bennet t>. Glough 1 B. & A. 401 326 
 
 t'. AVatson 3 M. & S. 1 .595 
 
 Bennett, Reg. V 2 Din. G. G. 240 1.3,62 
 
 Beusim, Rexv 2Gampb. 508 40,87,397 
 
 Bent, Reg. w 1 Den. G. G. 157 105 
 
 Bentley, Rexv 6 G. & P. 148 474 
 
 Berigan's case Jov, 27 452 
 
 Bernard, Reg. V 1 F. & F. 240 120,381,386,578 
 
 Bernadotti, R. r llGoxG. G. 316 355 
 
 Berriman, Rexv 5 G. & P. 601 400 
 
 , Reg. r 6 Gox G. C. 388 472,484,503 
 
 Berry, Reg. r Bell G. G. 46 917 
 
 , R. v 45 L. J. M. G. 123 032 
 
 Berrpuau I'. Wyse 4 T. R. 366 327,347 
 
 Bertiion V. Loughman ... 2 Stark. R. 258 570 
 
 Bertrand, R. V L. R. 1 P. G. 520 319 
 
 lOGoxG. G. 619 557 
 
 Best, Reg. Lord Raym. 1167 j f^^; ^^.^^^ ^^^^^^^ 
 
 Bevan v. l\c Mahon ... 30 Law. J. D. & M. 61 298 
 
 V. Waters M. & M. 235 550 
 
 Beveridge V. Minter ... 1 G. & P. 364 622 
 
 Bier-sRexv 1 Ad. & E. 327 133,155 
 
 Bi-nold, Rexr MSS. Bavley, J 58 
 
 Biilr.Bament ... ... 8 M. & W. 317 98 
 
 Billin-hurst, Rex r. ... 3 M. & S. 250 294 
 
 Bihnore's case 1 Hale, 305 600 
 
 2 Roll. Ab. 685 610 
 
 Bingham r. Dickie 5 Taunt. 14 402 
 
 r.in^lev, Rex i; R. & R. 446 369 
 
 Birch, R.r 4 F. it F. 407 143 
 
 r. Ridgwav 1 F. it F. 270 438 
 
 Bird, Reg r. " MSS. G. S. G 64,83 
 
 5GoxG. G. 11 567 
 
 Birdscve, Rex r 4 G. & P. 386 371 
 
 Biikett, Reg. r 8 G. & P. 732 605
 
 2\d)le of Cases. 
 
 Xlll 
 
 Birkett, Eex ». 
 
 Birmingham, Rex v. 
 
 Birt V. Barlow 
 
 Bisliop, Reg. V. 
 
 Bishops (the Seven) case of 
 
 Bispham, Rex v. 
 
 Bhick V. Lord Bray brook ... 
 
 BhTckburn, Reg. v. ... 
 
 Blagg V. Sturt 
 
 Blake, Reg. v. 
 
 r. Beech 
 
 ■ V. Pilfold 
 
 Bland's case.., 
 
 Bleasdale, Reg. v 
 
 Blenkinsop v. Blenkinsop... 
 
 Bligh V. Wellesley 
 
 Bloomfield v. Blake 
 Bodkin, Reg. v. 
 Bodle, Rex v. 
 Boelen v. Melladew 
 Bond, Reg. v. 
 Bonelli (goods of) ... 
 Bonner, Hex v. 
 Boosey v. Davidson 
 Borrett, Rex v. 
 Boswell, Reg. v. 
 Botham v. Swingler 
 Boucher, Reg. v. 
 
 Rex V. 
 
 Boiilton, R, V. 
 Boulter, Reg. v. 
 Bourdon, Reg. v. 
 Bowes, Rex v. 
 Bowen, Reg. v. 
 Bowler, Reg. v. 
 Bowman, Rex v. 
 
 y. Norton 
 
 Boyes, Reg. v. 
 Boyle, Rex v. 
 V. Wiseman . . . 
 
 Boynes, Reg. v. 
 Bradley, Reg. v. 
 
 V. Methncn 
 
 Brady's case 
 
 Braintrce, Reg. v. ... 
 Braitliwaite, Reg. v. 
 Brampton, Rex v. ... 
 Brauiwell v. Lucas . . . 
 Brangan, Rex v. 
 Brard t;. Ackerman... 
 Brawn, Reg. v. 
 
 Bray, U. v 
 
 Braynell, Reg. v. ... 
 Brazier's case 
 Breton v. Cope 
 Brett V. Beales 
 Brewer, Rex v. 
 
 V. Ralmor . . . 
 
 Brewster v. Scwell . . . 
 Brickell v. Hulse . . . 
 
 
 
 PAGE 
 
 R. &R. 251 
 
 
 ... 604 
 
 8B. &C. 29 
 
 
 267,279 
 
 Dougl. 171 
 
 .'..'313, 
 
 424, 425 
 
 C. &^M. 302 
 
 
 ... 53 
 
 ]2 St. Tr. 183 
 
 ...ISO, 
 
 219, 220 
 
 4 St. Tr. 346 
 
 
 . . . 555 
 
 4C. &P. 392 
 
 
 ... 592 
 
 2 Stark. R. 11 
 
 
 ... 419 
 
 6CoxC. G. 333 
 
 
 451, 626 
 
 lOQ. B. 899 
 
 .'.'.191, 
 
 193, 210 
 
 6Q. B. 126 
 
 ...135, 
 
 , 147, 148 
 
 45 L. J. M. C. Ill 
 
 
 8 
 
 IM. &Rob. 198 
 
 '. !.'.'l90, 
 
 193, 554 
 
 1 Lew. 236 
 
 
 ... 400 
 
 2 C. & K. 765 
 
 
 ... 374 
 
 lOBeav. 277 
 
 
 ... 544 
 
 2 0. & P. 400 
 
 
 ... 334 
 
 6C. &P. 75 
 
 
 ... 115 
 
 9 CoxC. C. 403 
 
 
 ... 473 
 
 6C. &P. 186 
 
 
 ... 563 
 
 10 C. B. 898 
 
 
 ... 614 
 
 1 Den. C. C. 517 
 
 
 ... 505 
 
 45 L. J. Prob. 42 
 
 
 ... 422 
 
 6 0. & P. 316 
 
 
 355, 357 
 
 13Q. B. 257 
 
 
 ... 580 
 
 6 0. & P. 124 
 
 . 
 
 ... 327 
 
 0. &M. 584 
 
 . . . 
 
 ... 450 
 
 1 Esp. 164 
 
 
 629, 630 
 
 8 0. & P. 141 
 
 
 ... 429 
 
 IF. &F. 486 
 
 
 ... 342 
 
 4 0. & P. 562 
 
 
 ... 245 
 
 12 0oxC. 0. 87 
 
 
 ... 109 
 
 2Den. 0. 0. 396 
 
 
 ... 74 
 
 2 0. &K. 366 
 
 
 ... 413 
 
 cited 4 East R. 171 
 
 
 ... 142 
 
 2 0. &K. 227 
 
 
 ... 303 
 
 0. & M. 559 
 
 
 104, 105 
 
 6 0. & P. 101,337 
 
 
 413,428 
 
 5 0. & P. 177 
 
 
 ... 543 
 
 IB. &S. 311 
 
 '. 573,574,608,610 
 
 cited 1 M. & Rob. 422 .. 
 
 
 ... 526 
 
 11 Exch. R. 360 
 
 .". 58"2','583,617, 629 
 
 10 Exch. R. 647 
 
 
 ... 338 
 
 10. &K. 65 
 
 '.'. '.'.'. 94 
 
 r, 107, 415 
 
 MSS. 0. S. G 
 
 
 50 
 
 2 Ford's MS. 78 
 
 
 ... 179 
 
 1 Leach, 327 
 
 
 ... 87 
 
 IE. &E. 51 
 
 
 ... 337 
 
 8 0oxO. 0. 444 
 
 
 75 
 
 10 East, 282 
 
 
 ... 306 
 
 2B.& 0.745 
 
 
 ... 552 
 
 1 Leach, 27 
 
 
 ... 428 
 
 5 Esp. 120 
 
 
 543, 550 
 
 1 0. & K. 144 
 
 
 268, 269 
 
 9CoxO. C. 218 ... 
 
 
 89 
 
 4 0ox 0. 0.402 ... 
 
 
 260, 477 
 
 1 East, 443, 444 ... 
 
 
 ... 612 
 
 Peakc R. 30 
 
 
 ... 424 
 
 M. &M. 421 
 
 
 ... 407 
 
 6 0. & P. 363 
 
 
 ... 551 
 
 9 0oxO. 0. 409 ... 
 
 
 ... 584 
 
 3 Esp. 213 
 
 
 ... 329 
 
 3B. &A. 296 ... 
 
 
 334, 336 
 
 7 A. & Elk 454 ... 
 
 
 92, 108
 
 X i V Tabic <>J " Cases. 
 
 H, V 
 
 V, AyiiHWtirlh 
 
 I'.rij^'liton, \lv'^. r. ... 
 
 l3ii;;stock, lU-^'. *'.... 
 
 Brisac, IJcx n 
 
 liiishy, Key. t'. 
 
 Uriscoe, Hex t?. 
 
 Bristol (city of) r. Wait . 
 
 I'.iistow V. I)e Sccqucville. 
 
 Biiltain, Hej,'. v 
 
 Britton, lU-xr. 
 Broad V.Pitt 
 Bromaf:;e i: Kice 
 Bromwich's case 
 Brook V. Brook 
 Brooke, Bex v. 
 
 Eeg.r 
 
 Brookes, Rej,'. v 
 
 V. Ticlibonie 
 
 Brooks, Reg. v. 
 Brown, Reg. v. 
 
 V. Foster 
 
 V. Woodman 
 
 BrowTie, Rex v. 
 
 — — — V. Gumming 
 
 Brownell, Rex v. ... 
 
 Browning, Reg. v. ... 
 
 Brunswick (Duke of) v. Harme 
 
 Brunton, Rex I'. 
 
 Brj'an's case... 
 
 Bryant'. Wagstaff 
 
 Buccleucli (Duke of) v. Me- 
 tropolitan Board of Works 
 Buchanan r. Rucker 
 Buckingham (Marq. ot),Rex v. 
 Buckworth, Rex v. 
 
 Bull, Reg. V 
 
 Bullard, R. V 
 
 Bullock, Reg. i' 
 
 Rex r. 
 
 f. Parsons 
 
 Bunburj' r. Matthews 
 Bunn, R. v. ... 
 
 Bunse, R. r 
 
 Bimter v. Warre 
 
 Burdett, Rex v 
 
 Reg. V. 
 
 Burke, Reg. v. 
 Burley, Rex r. 
 
 Bumard r. Nerot ,, 
 Burnby, Reg. v. 
 Biu-raston, Reg. r. .. 
 Burridge, Reg. v. . 
 Burrough r. Martin 
 Burrows, Reg. v. .. 
 Burt, Reg. r. 
 
 
 I'AfM', 
 
 2 M. i^ I{ol). 1!)!) 
 
 3H2, .005 
 
 l)<-ars. .S: B. C. ('. Uti 
 
 ... 205 
 
 2 M. & Rol). ](;h 
 
 ... 505 
 
 1 Jiest&T. 447 
 
 ... 270 
 
 C, ('. & P. 184 
 
 ... 224 
 
 -1 East R. 171 
 
 ... 142 
 
 1 Den. C. C. 41(5 
 
 9 
 
 1 Dowl. P. C. ryU) 
 
 ... 535 
 
 (i (J. & P. Ml 
 
 ... 337 
 
 :jC.&K. 04 
 
 ... 422 
 
 3CoxC. C. 70 
 
 ... 148 
 
 IM. &Rob. 2!J7 
 
 ... 479 
 
 3 (J. & P. 518 
 
 ... 540 
 
 7C. &P. 541 
 
 ... 437 
 
 1 Lev. 180 
 
 ... 533 
 
 3Smale&G. 481 
 
 ... 270 
 
 2 Stark. R. 472 
 
 ... 502 
 
 7 Cox C. C. 251 ... 
 
 213 
 
 C. &M. 543 
 
 404 
 
 5 Exch. R. 929 
 
 438 
 
 ICoxC. C. 6 
 
 354 
 
 Arch. C. P. 149 
 
 ... 318 
 
 9CoxC. C. 281 
 
 ... 548 
 
 SOL. J. M. C. 59 
 
 .592 
 
 1 Ventr. 243 
 
 024 
 
 in. &N. 736 
 
 551 
 
 OC. &P. 290 
 
 346 
 
 M. & M. 315 
 
 89,92 
 
 lOB. &C. 73 
 
 428 
 
 1 A. &E. 598 
 
 596 
 
 3CoxC. C. 437 
 
 108 
 
 3C. &K. 10 
 
 218,223 
 
 R. &R. 454 
 
 601 
 
 Joy, 73 
 
 463 
 
 Kk M. X. P. R. 327 
 
 340 
 
 41 L.J. Ex. 137 
 
 541 
 
 1 Camp. 63 
 
 ... 419 
 
 4 Camp. 189 
 
 396 
 
 T. Ravm. 170 
 
 88 
 
 9C. &P. 22 
 
 562 
 
 12CoxC. C. 353 
 
 512 
 
 Dears. C. C. 653 
 
 134 
 
 1 Taun. 71 
 
 86 
 
 2 Sal k. 454 
 
 38 
 
 IC. &K. 380 
 
 327,419 
 
 12 Cox C. C. 316 
 
 ..156,159,163 
 
 12CoxC. C.316 
 
 110 
 
 IB. &C. 689 
 
 629 
 
 4 B. & A. 95, 124 212,213,219, 
 
 220, 221, 224, 
 
 
 325 
 
 4 B. & A. 314 
 
 210,229,262 
 
 Lord Ravm. 149 
 
 396 
 
 Dears, c! C. 431 
 
 502 
 
 8CoxC. C. 44 
 
 587 
 
 1 Phill. Ev. 400 
 
 448 
 
 2 Stark. Ev. 13 
 
 449,601 
 
 IC. &P. 578 
 
 416 
 
 5Q. B. 348 
 
 70 
 
 4 Jurist, 697 
 
 60 
 
 2 ^I. & Rob. 290 
 
 233,240 
 
 2 Camp. 112 
 
 ... 567 
 
 2M. &Rob. 124 
 
 430 
 
 5CoxC. C. 284 
 
 3S9
 
 Burt V. Burt 
 Biuiou, K. V 
 
 r. Payne 
 V. Plummer 
 -upon-Trent, Eex i\.. 
 
 Bush, Eex v. 
 Busliell's case 
 
 Butcher, Rex v 
 
 Reg. V. 
 
 Butcher's Company v. Jones 
 
 Butler, Rex r. 
 
 • Reg. V. 
 
 ■ V. Carver ... 
 
 V. Ford 
 
 V. Moore 
 
 Buttery, Rex v. 
 
 Button, Reg. v 
 
 Buxton V. Gouch ... 
 Bykerdyke, Rex v 
 
 Table of Cases. 
 
 29 L. J. p. & i\r. 133 
 Dears. C. C. 282 ... 
 13 Cox C. C. 71 ... 
 2 C. &P. 520 ... 
 2 A. & E. 341 ... 
 3M. &S. 537 ... 
 R. &R. 372 
 Vaugh. 152 
 
 1 Leach, 265 
 
 2 M. & Rob. 228... 
 
 1 Esp. 162 
 
 R. & R. 61 
 2C. &K. 221 
 
 2 Stark. 434 
 
 3 Tynv. 677 
 M'Nall. Ev. 253 ... 
 R. &R. 342 
 11 Q. B. 929 
 3Salk. 369 
 1 M. &Rob. 179 ... 
 
 XV 
 
 PAGE 
 
 ... 268 
 
 ... 441 
 
 ... 631 
 
 ... 3,39 
 
 ... 569 
 
 ... 295 
 
 ... 399 
 
 ... 72 
 
 ... 483 
 
 ... 429 
 
 ... 629 
 299, 365 
 
 ... 371 
 
 ... 629 
 
 ... 327 
 
 ... .540 
 418, 424 
 
 ... 137 
 
 ... 5,32 
 154, 166 
 
 Cain's case 
 
 Callaghan, Rex v 
 
 Callanan, Rex v 
 
 Calvert, Reg. v 
 
 V. Archbishop of Can- 
 terbury... 
 
 V. Flower ... 
 
 Camfield v. Bird 
 
 Campbell's case 
 
 Campbell v. Spottiswoode... 
 
 V. Twemlow 
 
 Card V. Jeans 
 
 Cardigan's (Earl) case 
 Carey v. Pitt 
 Carlisle, Reg. v. 
 
 Eex V. 
 
 V. Eady 
 
 Carpenter, Rex v. ... 
 • Reg. V. ... 
 
 V. Wall '.'.'. 
 
 Carr, Eex v 
 
 R. V 
 
 . V. Hood 
 
 Carrol, R. v. 
 Carruthers, Reg. v. ... 
 Carson's case 
 Carter, Reg. v. 
 
 Carjv. Pitt 
 
 Cass's case 
 
 Cassidy, Reg. r. 
 Castell Careinion, Rex v. 
 Castleton, Rex v. ... 
 Castro, R. r. ... 
 Cates V. Hardacre ... 
 
 V. Winter 
 
 Catherwood v. Caslon 
 Citton, Rex v. 
 Cater, Rex v. 
 
 C. 
 
 Jov, 16 ... 
 M'Nall. Ev. 385 
 
 6 B. & C. 102 
 
 2 Cox C. C. 491 
 
 2 Esp. 646 
 
 7 C. & P. 386 
 
 3 C. & K. 56 
 
 11 M. & W. 486 
 3 B. & S. 769 
 1 Price, 81 
 Mann. Dig. 375 
 Dears. C. C. 477 
 1 Peake Add. Ca. 
 Dears. C. C. 337 
 1 Cox C. C. 229 
 3 B. & A. 167 
 
 1 Carr. & P. 234 
 
 2 Show. 47 
 
 2 Cox C. C. 228 
 
 I Cox C. C. 72 
 
 II A. & E. 803 
 1 Sid. 418... 
 
 10 Cox C. C. 564 
 1 Campb. 355 
 
 11 CoxC. C. 322 
 1 Cox C. C. 138 
 R. & R. 303 
 
 1 Den. C. C. 65 
 Peake Evid. 85 
 1 Leach, 293 
 1 F. & F. 79 
 
 8 East E. 77 
 6 T. R. 236 
 43 L. J. Q. B 
 
 3 Taunt. 424 
 
 3 T. E. 306 
 
 13 M. & W. 261 
 1812 
 
 4 Esp. 117... 
 
 105 
 
 ... 448 
 ... 360 
 ...39,54 
 ... 515 
 
 ... 363 
 
 ... 345 
 ... 383 
 ... 358 
 ... 187 
 ... 626 
 ... 333 
 ... 399 
 ... 130 
 ... 125 
 ... 212 
 183, 195 
 ... 629 
 354, 487 
 ... 510 
 ... 563 
 580, 590 
 ...83,97 
 ... 91 
 ... 187 
 ... 521 
 ... 245 
 ... 396 
 ... 41() 
 ... 570 
 444, 4(i4 
 562, 563 
 ... 600 
 ... 335 
 25 
 ... 573 
 ... 338 
 300,313 
 ... 194 
 437, 570
 
 XVI 
 
 Calr.r, lu'.x. r. 
 Catt V. Howard 
 Caiitlle V. Sciyniour... 
 CiiiiilwcU, lU'g. I'. ... 
 Ciivan I). St t' wart ... 
 Chad wick, Uej^. v. ... 
 
 Hex »'. 
 
 V. lUmniiig 
 
 Chalmerr!, R. %>. 
 Cliamborliiin, Hex v. 
 Chamber.^, Hcj,'. v. ... 
 Cliampiioy's ciise ... 
 Chandler, Rex v. ... 
 
 V. llorne... 
 
 Chant V. IJrowii 
 Chapman, Reg. v. ... 
 
 Ex parte . . . 
 
 Cliappel, Rex i'. 
 Cliarleswortli, Reg v. 
 Charlton v. Watton 
 Charnock v. Dewings 
 Chatfield ('. Frier ... 
 Chaurand v. Angerstein 
 Cherry, R. v. 
 Chesham, Reg. v. ... 
 Chester v. Wortley... 
 
 Cheverton, Reg. v. ... 
 Chichester V. Mure... 
 Chidley, Reg. r. 
 Child, Reg. ('. 
 
 V. Affleck 
 
 r. Grace 
 
 Childerston v. Barrett 
 Chorley, Reg. v. 
 Christauce, Reg. v — 
 Christian, Reg. v. ... 
 
 i;. Combe... 
 
 Christie, Reg. v. 
 
 Rex V. 
 
 Christopher, Reg. v. 
 Chubb r. Salomans 
 Chugg, R. V. 
 Clark, Rex u 
 
 ■ Reg. V. 
 
 R.V 
 
 Reg. V. 
 
 Clarke, Rex r. 
 
 Reg. V. 
 
 V. Sall'ery ... 
 
 Clerk, Rex v. 
 Cleary, Reg. v. 
 Cleave v. Jones 
 
 T<(hh' oj Cases. 
 
 Clegg r. Lall'er 
 
 V. Levy 
 
 Clement c. Fisher ... 
 Clements, Reg. r. ... 
 Clevc r. Powel 
 Clewes, Rex v. 
 
 Clillord V. Brandon... 
 
 4 East 11. :iC,\ IHH 
 
 3 Stark. I{. :j r,r,r, 
 
 1 A. & K. HKj) r>u,r>2('i 
 
 I7g. p.. r,o;i ;ii!> 
 
 I stark. .'i2.'j 419 
 
 II (}. B. 173 27<»,(i2n 
 
 « C. &!'. IHI 340 
 
 R. & M. N. P. R. 300 41'.) 
 
 1 ( ) Ci .X C. C. 450 234, 2.".-) 
 
 R. & M. C. C. R. 154 333 
 
 3 Cox C. C. 92 3.S2, 4 40 
 
 2 Lew. 25S 72 
 
 1 Ld. Ravm. 581 90,405 
 
 2 M. & Rob. 423 572 
 
 7 Hare, 79 552 
 
 1 Den. C. C. 432 ... ' ... 4 
 
 8C. &P. 558 5.'>9, 503 
 
 4A. &?:. 773 205 
 
 IM. &Rob. 390 504 
 
 2F. &F. 320 575 
 
 6C. &P. 570 184 
 
 3C. &K. 378 572 
 
 I Price, 250 303 
 
 Peakc R. 43 570 
 
 12 CoxC. C. 32 479 
 
 I\ISS. C. S. G 482 
 
 17 C. B. 410 574 
 
 25 L. J. C. P. 117 501 
 
 2F. &F. 833 402 
 
 32 L. J. P. & :\L 140 200 
 
 8 Cox C. C. 305 478 
 
 5 Cox C. C. 197 38,40,48,81 
 
 9 B. & C. 403 ; 4 M. & R. 338 188 
 
 2C. &P. 193 480,487 
 
 II East, 439 599 
 
 12Q. B. 515 320 
 
 iCoxC. C. 143 504 
 
 C. &M. 388 91,99 
 
 2E.sp. 489 580 
 
 7CoxC. C. 500 432 
 
 Car. Sup. 202 355 
 
 1 Den. C. C. 536 300, 514,531,585 
 
 3C. &K. 75 408,550,557 
 
 llCoxC. C. 558 9 
 
 R. &R. 358 401 
 
 1 Hale, 305 600 
 
 5CoxC. C.2.30 530 
 
 L.R. IC. C. 54 319 
 
 2 CoxC. C. 183 299 
 
 2Stark. R. 242 353,577,592 
 
 2F. &F. 2 300,520 
 
 R.&M. N. P. R. 120 559 
 
 1 Barnard, 304 211 
 
 2F. &F. 850 354,533 
 
 7E.xch.R. 421 540,552,028 
 
 MSS. C. S. G 628 
 
 10 Binir. 250 211 
 
 3 Camp. 100 421 
 
 7B. &C. 459 209 
 
 2 IXn. C. C. 251 512 
 
 1 M.& Rob. 228 542 
 
 4 C. & P. 221... 379, 463, 464,480,492, 494, 496 
 MSS. C. S.G 480 
 
 2 Canipb. 309 116
 
 Table of Cases. 
 
 Clifford V. Hunter ... 
 Cliviger, Rex v. 
 Clube, Reg. v. 
 Clutterbuck v. CIiall\3rs 
 Coates V. Birch 
 Cobbett V. Hudson ... 
 
 Rex V. 
 
 V. Kilininster 
 
 Cobden, Reg. v. 
 
 V. K end rick 
 
 Cochrane, Lord, Rex v. 
 Cockayne v. Hodgkinson 
 Cockburn, Reg. v. ... 
 Cocks V. Purday 
 Cod V. Cabe ... 
 
 Coghlan, Reg. v 
 
 Cohen, Rex v. 
 Cole, Rex v. 
 Coleman, Reg. v. ... 
 Coley, R. V. 
 Colley, Rex v. 
 Collier, Reg. v. 
 Collins, Rex v. 
 Colmer, Reg. v, 
 Colt V. Button 
 Colucci, Reg. v. 
 Commonwealth v. Ivnapp 
 
 V. Vass 
 
 Compagnon v. Martin 
 Compson, Rex v. 
 Compton, Rex V. 
 Conning, R. v. 
 Connor, Reg. v. 
 Cook's case ... 
 Cook V. Hearn 
 Cooke's case 
 Cooke, Reg. v. 
 
 Rex V. 
 
 Cooke V. Maxwell . . . 
 
 V. Ward 
 
 V. Wildes 
 
 Cooper, Reg. v. 
 
 Rex V. 
 
 R. V. 
 
 V. Dawson . . . 
 
 V. Gibbons . . . 
 
 V. Marsdcn . . . 
 
 Coote, R. V. 
 Cope, Rex v. 
 
 V. Thames Haven Di 
 
 Company ... 
 Copeland v. Watts . . . 
 CopU'y, R. V. 
 Coppard, Rex v. 
 Corking v. Jarrard ... 
 Corsen v. Dubois . . . 
 Cesser, R. v. 
 Cotton, R. ■y. 
 
 Rex V. 
 
 Coude, R. r. 
 
 3C. &P. 16 
 
 2T. R. 263 
 
 3 Jur. (N.S.) 698 
 
 1 Stark. R. 471 
 
 2Q.B. 252 
 
 lE.&B. 11 
 
 Holt on Libel, 114, 115 ... 
 
 4F. &r. 4!)() 
 
 3F. &F.833 
 
 4T. R. 432 
 
 3M. &S. 10 
 
 5C. &P. 543 
 
 D. &B. 203 
 
 2C. &K. 269 
 
 45 L. J. M. C. 101 
 
 4F. &F. 316 
 
 iStark. R. 511 
 
 1 Phill. Ev.447 
 
 6CoxC.C. 163 
 
 lOCoxC.C.536 
 
 M. &M. 329 
 
 3CoxC.C. 57 
 
 9C. &P. 456 
 
 9CoxC. C. 506 
 
 2Sid. R. 6 
 
 3F.&F. 103 
 
 10 Pick. 477 
 
 SLeigh. R. 786 
 
 2B1. R. 790 
 
 MSS.C.S. G 
 
 Cald.246 
 
 llCoxC.C. 134 
 
 iCoxC.C. 233 
 
 1 Leach, 105 
 
 1 M. &Rob. 201 
 
 4St. Tr. 748 
 
 2Den. C.C. 462 
 
 8C.&P.582 
 
 IC. &P. 321 
 
 7C. &P. 559 
 
 5B. &C. 538 
 
 2Stark. R. 185 
 
 6 Bing. 409 ; 4 M. & P. 99 
 
 5E.&B. 328 
 
 3CoxC. C. 547 
 
 8Q. B. 533 
 
 5C. &P. 535 
 
 45L. J. M. C. 15 
 
 IF. &F. 550 
 
 SCampb. 363 
 
 lEsp. 2 
 
 42 L. J. Priv. C. Ca. 45 .., 
 iStra. 144 
 
 2C.&K. 757 
 
 IStark. R. 93 
 
 4F. &F. 1097 
 
 M. &M. 118 
 
 1 Canipb. 37 
 
 Holt R. 239 
 
 13CoxC. C. 187 
 
 12CoxC. C. 400 
 
 3 Canipb. 444 
 
 10 Cox C.C. 547 
 
 XVll 
 
 PAGR 
 
 ... 562 
 ... 622 
 ... 343 
 ... 213 
 ... 550 
 ... 572 
 203, 205 
 ... 438 
 ... 372 
 ... 551 
 ... 159 
 ... 189 
 ... 522 
 ... 421 
 ... 634 
 ... 226 
 ...5,319 
 ... 368 
 ... 437 
 ... 456 
 ... 571 
 ... 462 
 ... 201 
 477, 481 
 ... 615 
 ... 433 
 ... 601 
 360, 361 
 39, 82, 99 
 ... 462 
 ... 117 
 ... 536 
 ... 432 
 ... 399 
 ... 343 
 ... 575 
 ... 9,21 
 ... 555 
 ... 599 
 ... 324 
 ... 128 
 ... 554 
 205, 218 
 ... 193 
 ... 259 
 ... 214 
 ... 462 
 ... 387 
 438, 583 
 ... 345 
 ... 364 
 476, 482 
 ... 149 
 
 ... 583 
 
 ... 545 
 
 ... 561 
 
 37, 45, 399 
 
 ... 630 
 
 ... 396 
 
 ... 635 
 
 ... 3S0 
 
 ... 363 
 
 ... 352
 
 will 
 
 ( 'ouiiliayc, Ex parte 
 C!ciiirt, Hex r. 
 ("ouilei'ii r. Toiise 
 Cuiutnuv, He^'. r. 
 {-'niuvuisicr, Ke;^. r 
 Coiisons, Ut'x'. '■• 
 Covem-y, Ili'X r. 
 Coward I'. Welling 
 Cox's ease 
 Cox, Reg. I'.... 
 
 toll 
 
 V. Lee . . . 
 
 Coxhead v. Richai 
 ( 'rackuell, R. r. 
 Cradock, Reg. v. 
 CiaiuvLjo, Rex v. 
 Craven's case 
 
 Ciawford, Reg. v. 
 Crawley, R. v. 
 Creevey, Rex v. 
 Creevy v. Carr 
 Cresby's case 
 Cresby, Rex v. 
 Crespigny, Rex v. 
 Cresswell, R. r. 
 
 V. Jackson 
 
 Creswell, Rex v. 
 Crisp V. Anderson 
 Crockett, Rex r. 
 Croft V. Stevens 
 Crobagen's case 
 Cromack i\ Heatlicote 
 Cronipton v. Bearcroft 
 Crouk V. Frith 
 Cropley , Rex v. 
 Cross, Reg. v. 
 
 R. V. ... 
 
 Crossley, Rex v. 
 Croncb, Reg. v. 
 Croucher, Reg. v. 
 Crowhurst, Reg. r. 
 Crowley v. Page 
 Croydon, Reg. v. 
 Culieu, Reg. e. 
 Cnlpcpper, Rex /•. 
 Cundeil i'. Pratt 
 Cnnlitt'e v. Sefton 
 Curgnrwen, R. r. 
 Curl, Rex v. 
 Carrie v. Child 
 Curry v. AValter 
 Curtis, Reg. v. 
 Cuts V. Pickering 
 Cults, Reg. V. 
 
 Tabic of Cases. 
 
 42 L.J.Q. R. 217 
 K'.ik l». 4H(i 
 1 ( 'aiiipb. 4:J 
 7 CoxC. C. Ill 
 !) C. & P. :j()2 
 MSS. C.S. 0. 
 7 C. & P. 6(57 
 7 C. &P. 5:31 
 1 Leach, 71 
 
 1 F. & F. 90 
 
 •) Cox C. C. 301 
 38 L. J. Ex. 219 
 
 2 C. B. r)()9 
 
 10 Cox C. C. 40^ 
 
 3 F. & F. ^37 
 1 Salk. 385 
 R. & R. 14 
 
 1 Lew. 77 ... 
 
 6 Cox C. C. 481 
 12CoxC. C. 162 
 
 1 M.& 8.273,281 
 
 7 C. & P. 64 
 Noy, 154 ... 
 1 Hale, 303 
 
 1 Esp. R. 280 
 45 L. J. M. C. 77 
 
 2 F. & F. 550 
 
 2 Chitt. Cr.L. 312 
 
 1 Stark. R. 35 
 
 4 C. & P. 544 
 
 6 H. & N. 570 
 Cro. Car. 332 
 
 2 Bred. & B. 4 
 Bull. N. P. 113 
 9 C. & P. 197 
 
 2 Esp. R. 524 
 Dears. C. C. 68 
 1 F. & F. 510 
 
 7 T. R. 315 
 4CoxC. C. 163 
 
 3 F. & F. 285 
 
 1 C. & K. 370 
 7 C. & P. 789 
 
 2 Cox C. C. 67 
 9 C. & P. 681 
 Skin. 673 ... 
 M. & Malk. 108 
 2 EastR. 183 
 
 35 L. J. M. C. 58 
 
 2 Stra. 788 
 
 3 Canqib. 283 
 
 1 Esp. 456 
 
 2 C. & K. 763 
 1 Ventr. 197 
 
 4 Cox C. C. 435 
 
 ... 412 
 ...442,443,447 
 . . . 558 
 ...17,22 
 ... 385 
 ... 599 
 ... 520 
 ... Ih9 
 ... 47 
 485, 488 
 ... 107 
 ... 205 
 ... 190 
 ... 235 
 ... 301 
 ... 404 
 ... 3'.*3 
 355 
 ... 597 
 50 
 183, 185 
 ... 562 
 ... 619 
 ... 600 
 2 
 
 13 C( 
 
 C. C 
 
 12() 
 
 . 302 
 ... 438 
 84 
 ... 345 
 ... 355 
 ... 188 
 ... 198 
 ... 542 
 . . . 305 
 ... 433 
 ... 424 
 ... 479 
 ... 265 
 3, 37, 44, 57 
 ... 437 
 ... 523 
 ... 494 
 581, 589 
 445, 464 
 ... 265 
 ... 346 
 ... 577 
 ... 433 
 . . . 265 
 ... 197 
 ... 433 
 ... 182 
 532,583 
 . . . 550 
 ...57,60 
 
 Dakin's case 
 Dalison v. Stark 
 Dahnas, Reg. v. 
 Dalrymple i'. DahyinpK 
 Daniel, Rex v. 
 Darby, Reg. v. 
 
 V. 
 
 2Sauud. 291 
 4 Esp. 163 
 
 1 Cox C. C. 95 
 
 2 Hagg. 54 
 MSS^ 
 2CoxC. C.316 
 
 405 
 329 
 358 
 306 
 492 
 479
 
 Table of Cases. 
 
 XIX 
 
 Darby V. Ouseley ... 
 
 IH.&N. 1 
 
 PAGE 
 
 222 
 
 Dartmouth (Lady) v. Robert 
 
 5 16 East R. 334 
 
 417 
 
 Davidson v. Duncan 
 
 7E.&B. 229,232 
 
 185 
 
 Davies v. Waters ... 
 
 9M. &W. 608 
 
 544,552 
 
 Davis, Reg. v. 
 
 2Den. C. C. 231 
 
 402 
 
 Rex V. 
 
 6C. &P. 177 
 
 ... 475 
 
 y. Dale 
 
 M. &M. 514- 
 
 562,597 
 
 V. Duncan 
 
 43 L. J. C. P. 185 
 
 188 
 
 V. Lloyd 
 
 IC. &K. 275 
 
 ... 364 
 
 V. Lovell 
 
 4M.&W. 678 
 
 21 
 
 V. Russell 
 
 SBingh. R. 354 
 
 390 
 
 V. Williams ... 
 
 13Ea>tR. 232 
 
 418 
 
 Dawber, Rex v 
 
 3Stark. R. 34 
 
 604 
 
 Dawkins v. Lord Rokeby . . 
 
 42L. J. Q. B. 63,Ex. Ch... 
 
 182,192 
 
 V. Paulet 
 
 32L. J. Q. B. 53 
 
 192 
 
 DaM'son, Rex v. 
 
 3Stark. R. 62 
 
 396 
 
 Day, Reg. v 
 
 6 Cox CO. 55 
 
 516,521 
 
 
 2CoxC. C. 209 
 
 457 
 
 V. Bream 
 
 2M.&Rob. 54 
 
 224 
 
 V. Robinson ... 
 
 lAd. &E. 554 
 
 211 
 
 Deacon, Rex v. 
 
 R. & M. N. P. R. 27 ... 
 
 70 
 
 Deakin, Rex v 
 
 2 Leach, 863 
 
 399 
 
 Deane v. Thomas ... 
 
 M. &M. 361 
 
 312 
 
 De Beauvoir, Re.x v. 
 
 7C.&P.17 
 
 70,106 
 
 De Berenger, Rex v. 
 
 3 M. & S. 67 ... 109, 11 
 
 3, 132, 136, 151 
 
 
 1 Stark. Ev. 167 
 
 8Q. B. 208 
 
 558 
 
 422 
 
 De Bode's (Baron) case 
 
 De Crespigny v. Wellesley.. 
 
 5 Bing. 392 ; 2 M. & P. 695 
 
 180 
 
 Deeley, Rex v. 
 
 R. & M. C. C. R. 303 ... 
 
 314 
 
 D'Eon, Rex v 
 
 1 Blac. R. 510, 517 
 
 178,208 
 
 Delacroix v. Thevenot 
 
 2Stark. R. 63 
 
 213 
 
 De la Motte, Rex v. 
 
 1 East P. C. 124 
 
 343 
 
 De Sailly v. Morgan 
 
 2Esp. 691 
 
 580 
 
 Delaney v. Jones ... 
 
 4Esp. 191 
 
 190 
 
 Delaval, Rex v. 
 
 3 Burr. 1434 
 
 123 
 
 Delegal v. Highley ... 
 
 3B. N. C. 950 
 
 183,184 
 
 Delpike, St. John, Rex v. .. 
 
 2B. &Ad. 226 
 
 272 
 
 Deman, Reg. y. 
 
 2 Lord Raym. 1221 
 
 47 
 
 Denio, Rex v. 
 
 7B. &C. 620 
 
 335 
 
 Dennis's case 
 
 2 Lew. 261 
 
 ... 487 
 
 Dennis, Reg. v 
 
 3F. &F. 502 
 
 587 
 
 Denslow, Reg. v. ... 
 
 2CoxC. C. 230 
 
 621 
 
 Dent, Reg. v. 
 
 MSS. C. S.G 
 
 421 
 
 
 2 Cox C C 354 
 
 399 
 
 305 
 
 449 
 
 
 1 C & H 97 
 
 Derrington, Rex v. ... 
 
 2C. &P. 418 
 
 Desmond, R. v. 
 
 llCoxC. C. 146 
 
 145 
 
 De Vidil, Reg. V 
 
 9CoxC. C. 4 
 
 512 
 
 Dewdney tJ. Palmer 
 
 4M. &W. 664 
 
 627 
 
 Dewhurst's case 
 
 1 Lew. 47 
 
 506 
 
 Dewliurst, Rex v 
 
 5B. &Ad. 405 
 
 229 
 
 Dews V. Ryley 
 
 20 L. J. C. P. 264 
 
 419 
 
 Dibden y. Swan 
 
 lEsp.N.P.C.2S 
 
 187 
 
 Dibley, Reg. v 
 
 2C. &K. 818 
 
 495 
 
 Dickenson v. Coward 
 
 IB. & A. 679 
 
 315 
 
 Dickeson V. Milliard 
 
 43L. J. Ex. 37 
 
 191 
 
 Dickinson v. Shee ... 
 
 4Esp. 67 
 
 564 
 
 Dickson v. Wilton (Earl) . . . 
 
 1 F. &F. 419 
 
 .554 
 
 Digby's (Lord) case 
 
 Hutt. 131 
 
 269 
 
 Dilmore, Reg. v. 
 
 6CoxC. C. 52 
 
 527 
 
 Dingler's case 
 
 2 Leach, 561 
 
 ..357,360,514 
 
 Dingley, Reg. r. 
 
 1 C. & K. 637 
 
 451,531 
 
 D'Israeli v. Jowett 
 
 1 Esp. R. 427 
 
 424 
 
 Dixon, Rex r. 
 
 3M. &S. 11 
 
 325,491 
 
 h 2
 
 XX Table of Cases. 
 
 I'AWK 
 
 Dixun, Ilex r- ;5 I'.mr. Kis? MJ) 
 
 J-. Vale !(.'.(& P. 278 J78,n78 
 
 l)()(l, Uexr ^ Ses8. (.'iw. :{3, 1)1. :58 21.') 
 
 l)uild'8(l)r.) case 1 I. each, 1. '').'') f!<)2 
 
 Dodd V. Nonis :{ ( 'aiiiplj. .'il!) ... ■• ... 577,5!);} 
 
 DoclHVVorth. H(!K. r 8 C. & 1'. 218 l<>:i 
 
 Doc 1'. AiKlrews Cowp. 84fi r,:)i),r,<m 
 
 v.BavuiiH ag. 15. U);J7 :i27 
 
 V Bowir Hi g. ]}. 8()."j ^>i>(> 
 
 r. Bimlett 4A.&E. 1 :i28 
 
 V. Cartwii.'ht 11. & M. N. P. R. G2 :iO:} 
 
 3P>. &A. 320 329 
 
 v. Clillonl 2C.&K.448 345, .'■,!)7 
 
 V. Cocktll 6C.&P. .525 345 
 
 r. Colc3 CC. &P. 3.5!) 34!) 
 
 r. Davis 10 Q. 13. 314 438 
 
 V. Deakiu 4B.&Ald.433 324 
 
 r. Diunlord 2M.&S. (J2 433 
 
 v. Egremont (Earl of) 2 M. & Rub. 380 507 
 
 d. Fleiuing V. Fleming 4 Bing. R. 266 314 
 
 V, Fuchau 15 East R. 286 325 
 
 t' Grey 1 Stark. R. 283 340,343 
 
 v. Harris 5 C. & P. 592 543 
 
 5M. &S. 326 404 
 
 V.Harvey 8 Bing. R. 239 348 
 
 V.Hodgson 12A. &E. 135 345 
 
 D. Jesson 6 East R. 80 324 
 
 u Kuight 2B. &A. 386 266 
 
 r. Langdon 12 Q. B. 711 544 
 
 V.Lewis IIU. B. 1035 336 
 
 v. Morris 12 East R. 237 330 
 
 3A. &E. 46 343 
 
 V. Nepean 5 B. & Ad. 86 325 
 
 V.Newton 5 A. & E. 514 437 
 
 V.Pearson 12EastR. 239u 330 
 
 V Perkins 3 T. R. 754 567,568,569 
 
 V. Roberts 2 B. & A. 367 114 
 
 V Ross 7 M. & W. 102 3:33, 34.-), 346, .597 
 
 u. Savage 1 C. & K. 487 363 
 
 w. Seaton 2 A. & E. 171 545 
 
 V. Skinner 3 Ex. 84 364 
 
 «. Spitty 2B. &Ad. 182 341 
 
 V. Stephenson 3 Esp. 284 593 
 
 V. Suckermore ... 5 A. & E. 703 43';, 437, 438 
 
 V. Turt'ord 3 13. & Ad. 890 364 
 
 V.Walker 4 Esp. 50 593 
 
 V. Watkins 3 Bing. N. C. 421 543 
 
 V. Whitehead 8A. &E. 571 365 
 
 V.Williams C. & M. 615 347 
 
 V.Wood Mann. Dig. 237 561 
 
 r. Young 8 Q. B. 63 325 
 
 Doharty, Reg. w 13 Cox C. C. 23 462 
 
 Doker V. Hasler R. &M. N. P. R. l:*8 622 
 
 Donnall, Reg. V 2 C. & K. 308 379 
 
 Donnison, Rex V 4 B. & Ad. 698 218 
 
 Doran, Reg. v 2 Moo. C. C. R. 37 26 
 
 Eex V 1 Esp. 1-27 330 
 
 Dorrctt r. Meux 15 C. B. 142 .427 
 
 Dossett, Reg. V 2 L". & K. 306 377,379 
 
 Douglas Peerage case ... Evans' Poth. App. 323 
 
 Reg. r. IC.&K. 670 536 
 
 Dowlin, Rexi- 5T. R. 311 3-5,57,95 
 
 Pi-akeR. 170 82 
 
 Dowling, Rex r K. & M. N. P. R. 4;)3 4 t3
 
 Tahle of Cases. 
 
 XXI 
 
 Downham, Eeg. v. ... 
 Downing, Reg. v. ... 
 Doxon V. Haigh 
 Doyle V. O'Doherty 
 Drabble v. Donner . . . 
 Drake's case... 
 Drew, Reg. v. 
 
 V. Prior 
 
 Druitt, R. V. 
 Drummond's case . . . 
 Drury, Reg. v. 
 Dii Barre's case 
 Du Barre v. Livette 
 Dubois, Ex parte . . . 
 Du Bost V. Beresford 
 Dudman, Rex v. 
 Duffield, Reg. v. 
 Duffin, Rex v. 
 
 v. Smith 
 
 Duffy, Reg. v. 
 Duley, R. «. ... 
 Duncan v. Thwaites 
 Duncombe, Reg. v. ... 
 Dunkiutield, R. v. ... 
 Dimkley, Rex v. 
 Dunn, Reg. v. 
 
 Rex V. 
 
 V. Aslett 
 
 Dunne, Reg. v. 
 Dunning, R. v. 
 Dunston, Rex v. 
 Durham, Rex v. 
 
 (Bishop oi) V. 
 
 mont 
 Duroure's case 
 Durrell v. Bederley... 
 Dwyer V. Collins ... 
 Dyer, Reg. v. 
 Dyke, Reg. v. 
 
 
 PAGE 
 
 IF. &F.386 
 
 342 
 
 1 Den. C. C.52 
 
 128 
 
 1 Esp. 409 
 
 336 
 
 C.&M. 418 
 
 181 
 
 R. & M. N. P. R. 47 
 
 346 
 
 1 Lewin, 25 
 
 297 
 
 8C. &P. 140 
 
 446,464 
 
 5 M. & Gr. 264 
 
 437 
 
 10 Cox 0.0.59 
 
 163,174 
 
 1 Leach, 337 
 
 359 
 
 3 0. &K. 190 
 
 619 
 
 4T. R. 756 
 
 539 
 
 Peake R. 78 
 
 540,541 
 
 36L.J. M. 0. 10 
 
 412 
 
 2 Campb. 511 
 
 178,179 
 
 4B.& 0.850 
 
 44 
 
 5 Cox 0. 0.404 ...144,146,14 
 
 ), 173, 348, 568 
 
 R. &R.365 
 
 399 
 
 Peake R. 108 
 
 550 
 
 2 0oxC. 0. 45 
 
 223 
 
 llOoxC. 0.607 
 
 619 
 
 3 B. & 0. 556 ; 5 D. & R. 447 
 
 184,221 
 
 8 0. & P. 369 
 
 583 
 
 IIQ. B. 678 
 
 364 
 
 R. & M. 0. 0. R. 90 
 
 252 
 
 12Q. B. 1026 
 
 .. 7,102,225 
 
 2M. 0. 0. R. 297 
 
 45 
 
 1 Dowl. &R. 10 
 
 40 
 
 4 0. & P. 543 
 
 471 
 
 R. & M. 0. 0. R. 146 ... 
 
 370,376 
 
 2 M. & Rob. 122. 
 
 594 
 
 5 OoxC. 0. 507 
 
 603 
 
 40L. J. M. 0. 58 
 
 35,48 
 
 R. &M. N. P. R. 109 ... 
 
 20 
 
 1 Leach, 478 
 
 603,609 
 
 1 Campb. 207 
 
 592 
 
 1 Leach, 351 
 
 393 
 
 Holt R. 286 
 
 570 
 
 7 Exch. R. 639 
 
 ..343,550,597 
 
 1 OoxC. 0. 113 
 
 430 
 
 8 0. & P. 261 
 
 605 
 
 Earle v. Pick en 
 
 East V. Chapman ... 
 East Farleigh, Rex r. 
 Eaton V. Jervis 
 Eccles's case... 
 
 Edgar, Rex v. 
 
 Edmonds u Rowe ... 
 
 V. Walter ... 
 
 Edmondson v. Stephenson... 
 Edmonton, Rex v. ... 
 Edmunds, Rex v. ... 
 Edulgce Byramjee, Ex parte 
 Edwards, Reg. v. 
 Rex V. 
 
 E. 
 
 5 0. & P. 542 
 M. & .Malk. 46 
 
 6 D. & R. 147 
 8 0. & P. 273 
 
 I Leach, 274 
 MSS. 0. S. G. 
 
 R. & M. N. P. R. 
 3 Stark. R. 7 
 Bull. N. P. 8 
 Cald. 435 ... 
 6 0. & P. 164 
 
 II Jur. 855 
 
 3 Cox 0. 0. 82 
 6 C. & P. 515 
 R. & 11. 497 
 8 Mod. 320 
 MSS. r3avlev, J. 
 1 Phill. Ev. 411 
 
 440 
 
 184, 478, 573, 578 
 ... 334 
 ... 437 
 112,124 
 ... 441 
 ... 614 
 . . 558 
 ... 188 
 ... 299 
 7, 512, 532, 533 
 ... 319 
 ... 562 
 ... 257 
 ... 392 
 118,119, 110, 142 
 1 
 ... 461 
 
 48'
 
 XX 11 
 
 Ed wan! H, Rex r. 
 
 T<(hle of Cases. 
 
 4 T. R. 4 ]() 
 K C. & i'. 2(5 
 
 A.luiiis, I! 
 
 V. JJucliaii;iii 
 
 Egerton, Wex v. 
 E),'rcniout ( Earl oi) r. ( irazcl > 
 Eicke 1'. Kokca 
 Eldcii i\ Kcddell ... 
 El(lei>lia\v, Ilex v. ... 
 El(lritl<,'e, Eex r. 
 EUicombo, Kex v. ... 
 Elliiis, Rex V. 
 Ellis, Reg. V. 
 Rtx I'. ... 
 
 Elswortli's case 
 
 Klworlhy, R. u 
 
 Emden, Rex r. 
 England's case 
 Ennis v. Donisthorne 
 Enock, Rex v. 
 Eiiswell, Rex v. 
 Erie V. Picker 
 Errington's case 
 
 Esdaile, Reg. r. 
 Esser's case ... 
 Elheriiigtou, Rex v. 
 Evans, Reg. v. 
 
 Rex V. 
 
 • V. Mo?eley .. 
 
 V. Phillips ... 
 
 V. Rees 
 
 • V. Sweet 
 
 Everett v. Lowdhani 
 Ewer V. Ambrose . . . 
 Ewington, Reg. v. ... 
 Exall, R. V. ..\ 
 Eyre v. Palsgrave . . . 
 
 U. & U. -28;$ 
 Il'Cox C. C. 2:50 ... 
 :! I'.. & Ad. 78H ... 
 
 i;. it R. ;j75 
 
 )uk 4 Q. v.. 4()(J 
 AI. it M. :M)3 
 
 8 East, 1H7 
 
 ;{ C. & P. :'m ' ... 
 1{. &R. 440 
 
 1 M. ik. Roh. 2Gi» ... 
 R. & ]{. 188 
 
 C. & M. 504 
 
 6 B. & C. 145 
 
 R. & M. N. P. R. 432 
 
 East P. C. 986 ... 
 
 37 L.J. M. C. 3 ... 
 
 9 East, 437 
 
 2 Leach, 770 
 
 1 Phill. Ev. 231 ... 
 5C. &P. 539 
 
 3T. R. 707 
 
 5C. &P. 542 ... 
 
 2 Lew. 148 
 2 Lew. 142 
 
 IF. &F. 213 ... 
 2 East, P. C. 1125 
 2 Leach, G71 
 . 8C. &P. 765 
 
 2 Cox C. C. 270 ... 
 3Stark. R. 35 ... 
 2 Dowl. P. R. 3G4 
 Selw. N. P. 952 ... 
 12A. &E. 55 ... 
 R. & M. N. P. R. 83 
 5 C. & P. 91 
 4B. &a 25 
 0. & M. 319 
 4F. &F. 922 
 2 Campb, 605 
 
 577 
 
 583, 584 
 2 
 
 ... 297 
 
 ... 351 
 
 416 
 
 378 
 
 299 
 
 550 
 
 418 
 
 326 
 
 441 
 
 341,344 
 396 
 
 104,105 
 
 370 
 
 51)3 
 
 233 
 
 344 
 
 71,86 
 
 530 
 
 354 
 
 446,464 
 ...5(10,514, 524 
 
 348 
 
 355 
 
 514 
 
 124,148, 156,318 
 
 261 
 
 395 
 
 401 
 
 495 
 
 396 
 
 562 
 
 428 
 
 595 
 
 339,340 
 571 
 
 417,593 
 54,86 
 
 322 
 
 346,426 
 
 Fagent, Rex r 
 
 Fagg, Rex v. 
 Fairburn, Reg. r. 
 Fairlie, Reg. v. 
 Fairman v. Ives 
 Falkner, Rex v. 
 Falmouth (Lord) v. Moss 
 Fanning, R. v. 
 
 Farler, Reg. v. 
 Farley, Reg. v.. 
 Farr, }\eg. v. 
 
 Farrell, R. v. 
 Farrer v. Close 
 Farrington, Rex v. 
 Fearshire, Rex v. 
 Fellowes, Reg. v. 
 
 7C. &P. 238 
 4C. &P. 566 
 MSS. C. S. G. .. 
 9CoxC. C. 209 .. 
 5B. &A. 642 
 R. & R. 481 
 
 11 Price, 455 
 
 10 Cox C. C. 411 .. 
 5Car. &P. 412 .. 
 8C. &P. 406 
 1 Den. C.C. 197 .. 
 8C. &P. 768 
 4F. &F. 336 
 
 12 CoxC. C. 605.. 
 38 L. J. M. C. 132 
 R. & R. 207 
 
 1 Leach, 202 
 1 ('. ct K. 115 
 
 355, 361 
 502, 509 
 ... 38 
 4 
 ... 190 
 ... 441 
 ... 541 
 ... 268 
 ... 268 
 605, 610 
 ... 546 
 ... 594 
 ... 343 
 ... 523 
 160, 173 
 ... 326 
 505, 531 
 45
 
 Table of Cases. 
 
 Fellowes v. Williamson 
 Fennell v. Tait 
 Fenton, Reg. v. 
 Fernandes, In re 
 Fernandez, Ex parte 
 Ferrers (Lord) v. Shirley 
 Field, Rex v. 
 Finacane, Rex v. 
 Finden v. AVestlake... 
 Findon, Rex v. 
 Finney v. Beesley . . . 
 Firkin v. Edwards . . . 
 
 Firth, R. -y 
 
 Fisher's case 
 Fisher, Rex v. 
 
 V. Clement ... 
 
 V. Dndding ... 
 
 V. Hemming 
 
 ■ V. Ronalds ... 
 
 V. Samuda ... 
 
 Fitz V. Rabbits 
 Fitzjohn v. Mackinder 
 Flaherty, R. v. 
 Fleet (the Ward en of), Rex 
 
 • Rex V. ... 
 
 Flemming, Rex v. ... 
 Fletcher's case 
 Fletcher, Eex v. 
 
 E. V. 
 
 V. Brad 
 
 Flindt V. Atkins 
 Flint V. Pike 
 Folkes, Eex v. 
 
 V. Cliad 
 
 Forbes, Eex i'. 
 Ford, Reg. ?•. 
 
 V. Elliott 
 
 Fordingbridge, Rej. 
 Forester, R. r. 
 Forster's case 
 Forster, Eex v. 
 
 Ivll 
 
 V. Pointer 
 
 For.syth, Rex v. 
 Foster's case... 
 Foster, R. ti. 
 Fountain v. Young . 
 Fowie, Rex v. 
 Fowler, Rex v. 
 France, Reg. v. 
 
 V. Andrews. 
 
 V. Lucy 
 
 FranceySj.Rex v. 
 Francis, R. v. 
 
 Frankland v. Nicholson 
 Franklin, Rex v. 
 Eraser, Rex v. 
 Fray r. Fray 
 Frederick, Eex v. ... 
 Freeman v. Arkell . . . 
 
 M. &M. 306 
 
 5Tyrw. R. 218 
 
 3 C. B. 760 
 
 6H. &N. 717 
 
 IOC. B. (N.S.) 3 
 
 Fitzg. 193 
 
 Dick. Q.S. 520 
 
 5C. &P. 551 
 
 M. &M. 461 
 
 6C. &P. 132 
 
 17 Q. B. 86 
 
 9C. &P. 478 
 
 38L. J. M. C. 54 
 
 1 Leach, 311 
 
 2 Campb. 563 
 
 lOB. &C. 472 
 
 9 Dowl. P. C. 872 
 
 1 PJiiL Ev. 170 
 
 12C. B. 762 
 
 1 Campb. 193 
 
 2M. e^Rob. 60 
 
 9 C. B. (N.S.) 505 
 
 2C. &K. 782 
 
 Holt, 133 
 
 1 Barn. & Aid. 379 
 
 2 Leach, 854 
 
 1 Lew. Ill 
 
 4C. &P. 250 
 
 1 Str. 633 
 
 L. R. 1 C. C. E. 320 
 
 3 Stark. R. 64 
 
 3 Campb. 215 
 
 4B. &C. 473; 6 D. & R. 528 ... 
 
 R. & M. C. C. R. 354 
 
 1 Philh Ev. 291 
 
 Holt R. 599 
 
 2Den. C. C. 245 
 
 4Exch. R. 78 
 
 E. B. &E. 678 
 
 10 Cox C. C. 368 ; 4 F. & F. 857 
 
 1 Lew. 110 
 
 6C. &P. 325 
 
 R. &R. 459 
 
 R. & R. 412 
 
 7C.&P. 148 
 
 9C.&P.718 
 
 R. & R. 274 
 
 1 Lew. 46 . . . 
 
 24L. J. M. C. lo'-l 
 
 6Esp. 113 
 
 4C. &P. 592 
 
 1 East P. C. 461 
 
 2 M. & Rob. 207 
 
 15 Q. B. 756 
 
 R. &M. N. P. R. 311 
 
 2Ad. &E. 49 
 
 12CoxC. C. 612 
 
 43 I;. J. M. C. 97 
 
 3M. &S. 261 
 
 9 St. Tr. 255 
 
 R. & M. C. C. R. 407 
 
 34L. J. C. P.45 
 
 2 Str. 1095 
 
 2B. &C. 494 
 
 XXlll 
 
 PAGE 
 
 ... 351 
 
 ... 598 
 ... 344 
 
 575 
 574, 575 
 ... 436 
 ... 610 
 ... 370 
 ... 486 
 ... 565 
 6 
 ... 341 
 ... 375 
 ... 505 
 ... 184 
 
 222 
 .'..' 88 
 ... 545 
 489, 573, 574 
 ... 346 
 ... .3.34 
 ... 181 
 ... 315 
 ... 128 
 ... 184 
 ... 520 
 ... 591 
 492, 493 
 602,611 
 9 
 220, 347 
 ... 419 
 ... 183 
 ... 372 
 ... 570 
 ... 514 
 ... 584 
 148, 350 
 ... 327 
 ... 354 
 ... 493 
 ... 352 
 3 
 ... 402 
 ... 504 
 ... 343 
 405, 408 
 ... 506 
 ... 376 
 ... 541 
 64, 133 
 ... 118 
 ... 521 
 ... 299 
 ... 340 
 ... 218 
 ... 376 
 ... 377 
 ... 295 
 ... 202 
 ... 269 
 205, 225 
 143,621 
 ... 334
 
 XXIV 
 
 Tahle of Cases. 
 
 IVtWcU, Hc^'. V 
 
 icwin, \U"f^. V. 
 
 liidlaiulur r. Loiuloii Aseia- } 
 anco ( '(mi]>iiiiy... ■■• ( 
 
 rit'iid, lii'X V. 
 
 rost, lloj,'. V. 
 
 II. V 
 
 D. Ildlloway ... 
 
 'roiulo )•. 1 1 ( >1)1 ).H 
 'rycr c. Cintliuicolc... 
 'ullcr, Rex v. 
 
 V. Fotch 
 
 Fuhvood's case 
 Fuiloy, Reg. v. 
 Fully V. Newnham... 
 Fiirsry, Rex v. 
 Fussell, Reg. v. 
 
 li. i't C. 1(11 
 G Co.K C. C. r>:i() 
 
 4 r.. & Ad. i;)3 
 
 4 St. Ti-. (i(>(; 
 !) C. <S: V. 1 2!) 
 !)C..^1'. 15!) 
 2 Pliill. Ev. 428 
 1 F. & F. 012 
 4 Exch. R. 2(52 
 It. &R. :iO.S 
 7 C. & P. 209 
 Carth. 340 
 C'ro. Car. 488 
 
 1 Cox C. C. 76 
 
 2 Doug. 419 
 nc. & P. 81 
 
 3 Cox C. C. 291 
 
 VAC.K 
 
 ... 028 
 40",, 471 
 
 . . . 594 
 
 ... 57G 
 
 ... 150 
 
 ... 505 
 
 ... 577 
 
 ... 345 
 213,405 
 
 ... 326 
 
 ... 530 
 
 ... 427 
 
 ... 024 
 
 ... 447 
 
 ... .598 
 3 19, 3s 1 
 
 ... 559 
 
 Gadl)Tiry, Reg. v. ... 
 Gahagan's case 
 Gainsl'ord v. Grammar 
 Gallagher, R. v. 
 
 Galvin, R. v 
 
 Garliett, Reg. i;. 
 Gardener v. Slade ... 
 Gardiner, Reg. v. ... 
 Gardner, Reg. v. 
 
 Rex V. 
 
 Garner, Reg. v. 
 
 Garnett v. Ferrand . . . 
 Garnons v. Swift . . . 
 Garrels v. Alexander 
 Garside's case 
 Garside, Rex v. 
 Gart.side v. Outram... 
 Gan'^ey, Reg. v. 
 Gascoine, Rex v. 
 Gatbercole's case . . . 
 Gatliercole v. Miall... 
 Gawdy's case 
 
 Gay, Rex v 
 
 Gazard, Reg. v. 
 Geering, Reg. v. 
 George, Reg. v. 
 
 Rex V. 
 
 r. Surrey ... 
 
 V. Thompson 
 
 Gerrans, R. v. 
 Gibbon, Reg. v. 
 Gibbons, Rex v. 
 
 R.J'. 
 
 V. Powell . . . 
 
 Gibbs V.Pike 
 Gibney's case 
 Gibson, Reg. v. 
 Giddins, Reg. v. 
 Giles, Rex v. 
 
 V. Siney 
 
 G. 
 
 8C.&P. 076 
 1 Leach, 42 
 2Canipb. 10 
 13CoxC. C. 61 ... 
 10 Cox C. C. 198 ... 
 
 1 Den. C. C. 230... 
 13Q. B. 796 
 
 2 ^[oo. C. C. R. 95 
 
 1 C. & K. 628 ... 
 
 2 Burr. 1117 
 
 1 Den. C.C. 329 ...442, 
 3F. &F. 681 
 4F. &r. 346 ... 
 6B. &C. 611 ... 
 
 1 Taunt. 507 
 
 4 Esp. 37 
 
 2 Lew. 38 
 
 2A. &E. 266 ... 
 26 Law J. Chanc. 113 
 
 1 CoxC. C. Ill ... 
 7 C. & P. 772 ... 
 
 2 Lewin, 255 
 15]\[. & W. 319... 
 Co. Litt. 3 
 
 7 C. & P. 230 ... 
 yC. &P. 59.J ... 
 18 Law J. (N.S.) M. C. 
 C. &M. Ill 
 
 MSS 
 
 M. & M. 516 
 4 Dowl. P. R. 650 
 13 CoxC. C. 158... 
 L. &C. 109 
 
 I C. & P. 97 
 
 12 CoxC. C. 237... 
 9 C. & P. 634 ... 
 8M. &W. 223 ... 
 
 Jov, 36 
 
 C. & M. 672 
 C. i\: M. 634 
 MSS. C. S. G. ... 
 
 II LawT. 310 ... 
 
 389 
 
 595 
 
 .541 
 
 020 
 
 520 
 
 473, 478, 182,573,578 
 
 188 
 
 52,75 
 
 431 
 
 616 
 
 444, 447, 464, 437, 499 
 
 380 
 
 377,380 
 
 533 
 
 347 
 
 436,437 
 
 601 
 
 600 
 
 549 
 
 66 
 
 430 
 
 178,194,196 
 
 ... 188,333,334,337 
 
 401 
 
 360 
 
 81 
 
 215 380 
 
 011,620 
 
 623 
 
 437 
 
 341 
 
 512 
 
 18,22 
 
 471 
 
 265 
 
 341 
 
 155 
 
 472 
 
 556 
 
 373 
 
 492 
 
 424
 
 Table of Cases. 
 
 XXV 
 
 Gilham, Rex t. 
 
 Gill's case 
 
 Gill, Rex V 
 
 GiUard v. Bates 
 Gillham, Rex v. 
 Gillis, R. -y. ... 
 Gillson's case 
 Gilpin V. Fowler ... 
 Girdwood's case 
 Gisbum, Rex v. 
 Glandfield, Reg. v. ... 
 Glassie, Reg. v. 
 Gleed, Rex v. 
 Glossop, Rex v. 
 Goddard, Reg. v. ... 
 Godfrey v. N orris ... 
 Godson V. Home ... 
 Gogeily, Rex v. 
 Goldsliede, Reg. v. ... 
 Gompertz, Reg. v. ... 
 
 V. Kensit 
 
 Goodall V. Little 
 Goodfellow, Reg. v.... 
 Goodhay v. Hendry 
 Goodier v. Lake 
 Gooding, Reg. v. ... 
 Goodman, Reg. v. ... 
 Goodtitle v. Brahani 
 
 V. Walter.., 
 
 Goodwin, R. w. 
 Gordon, Reg. v. 
 
 Rex V. 
 
 R. V 
 
 (Lord George) 
 
 Gorham v. Canton 
 Goss V. Quinton 
 Gongh, Rex v. 
 Gould, Reg. V. 
 Grady, Rex v. 
 Graft V. Bertie 
 Graham's case 
 Graham, Rex v. 
 
 V. Dyster 
 
 Grant's case... 
 Grant, Reg. v. 
 
 ■ Rex V. 
 
 Gray, R. v. ... 
 
 V. Cookson 
 
 Greaves v. Hunter ... 
 Green, Rex v. 
 
 R. v.... 
 
 V. Brown ... 
 
 Greenacre, Ex parte 
 
 Greenaway, Reg. v 
 
 Greenhow (Inhab. of), R. r. 
 Greenough v. Eccles 
 
 V. Gaskell 
 
 Grecnsliields r. Cra\\ford . 
 
 Greet^lade, R. t> 
 
 Gregory, Reg. v 
 
 
 PAGE 
 
 R. & M. C. C. R. 186 
 
 473 
 
 1 Lew. 305 
 
 246 
 
 2B. &A. 204 ... 
 
 129,131 
 
 6 M. & W. 547 ... 
 
 549 
 
 6 T. R. 265 
 
 396,405 
 
 11 CoxC. C. 69 ... 
 
 441), 475 
 
 R. &R. 138 
 
 330 
 
 9 Exc. R. 615 
 
 193 
 
 1 Leach, 142 
 
 ... 233,240,249,261 
 
 15 East, 57 
 
 629 
 
 2CoxC. C. 43 ... 
 
 354 
 
 7 Cox C.C.I ... 
 
 624 
 
 MSS. C. S. G. ... 
 
 623 
 
 4B. &A. 616 ... 
 
 403 
 
 2F. &F. 361 ... 
 
 22 
 
 1 Str. 34 
 
 333 
 
 3 Moore, 223 
 
 223 
 
 R. &R. 343 
 
 369 
 
 IC. &K. 657 ... 
 
 471 
 
 9 Q. B. 824 ...129, 
 
 133,153,157,159,319 
 
 41 L. J. Ch. 382 ... 
 
 296 
 
 1 Sim. (N.S.) 155... 
 
 544 
 
 C. &M. 569 
 
 36,53,59,95 
 
 M. & M. 319 
 
 630 
 
 1 Atk. 246 
 
 346 
 
 C. & M. 297 
 
 314 
 
 1 F. & F. 502 
 
 105 
 
 4 T. R. 497 
 
 437,570 
 
 4 Taunt. 671 
 
 404 
 
 lOCoxC. C, 534... 
 
 376 
 
 C. & M. 410 
 
 88 
 
 Dears. C. C. 586 ... 
 
 335 
 
 1 Leach, 515 
 
 327 
 
 1 Leach, 300, n. ... 
 
 339 
 
 R. &R. 48 
 
 269 
 
 21 St. Tr. 542 ... 
 
 208,350,384 
 
 5 GreenL 266 
 
 350 
 
 3 M. & G. 825 ... 
 
 477 
 
 Dougl. 791 
 
 36 
 
 9C. &P. 364 ... 
 
 484 
 
 7C. &P. 650 ... 
 
 520 
 
 PeakeEv. 104 ... 
 
 368 
 
 2 Lew. 97 
 
 305 
 
 2 Leach, 547 
 
 393 
 
 2Stark, R. 23 ... 
 
 315,561 
 
 2 East P. C. 658 ... 
 
 4S3 
 
 4F. &F. 322 ... 
 
 382 
 
 5B. & Ad. 1081 ... 
 
 224 
 
 4F. &r. 1102 ... 
 
 382 
 
 10 CoxC. C. 184... 
 
 184 
 
 16 East R. 13 ... 
 
 424 
 
 2C. &P. 477 
 
 437 
 
 6 C. & P. 655 ... 
 
 415,448 
 
 5C. &P. 312 ... 
 
 503 
 
 3C. &K. 209 ... 
 
 376 
 
 2 Str. 1199 
 
 323 
 
 8C. &P. 32 
 
 433 
 
 7 Q. B. 126 
 
 596 
 
 45 L.J. M. C. 41... 
 
 634 
 
 5 C. B. (N.S.) 786 
 
 586,593,594 
 
 Mylne&K. 98 ... 
 
 543 
 
 9M. &W. 314 ... 
 
 434 
 
 11 CoxC. C. 412... 
 
 563 
 
 8Q. B. 508 
 
 223,402,403
 
 XXVI 
 
 Gregory v. The (Jnoen 
 
 V. Duke of IJi unsw 
 
 Grey (Ijorcl), Rvx v. 
 GriciK', lU'x V. 
 Ciilliii, |{(',-. r. 
 [Wx i: 
 
 Grillith v. Davits ... 
 
 V. AVilliiuns 
 
 Gritliths, Kex 1). 
 Grittita v. Ivory 
 
 V. Payne 
 
 Grimwade, Ke<^. i\ ... 
 Grindall, Kex v. 
 Grinnc'll i'. Wells ... 
 Groenvelt v. Bam-tt 
 Groombridge, Eex v. 
 
 Guild's liise 
 
 Guruey's case 
 Guruey, E. v. 
 
 V. Langland.s 
 
 Gutch, Eex v. 
 Guttridge, Eeg. v. ... 
 Gwinnet r. Pliillijis 
 Gyles y. HiU 
 
 Table of Cases. 
 
 ]-> {}. W. !>')7 
 ir. t,>. Ji. !)74 
 : 6 J\l. ^V (;. !):)3 
 n St. Tr. 127 
 
 I i.d. iiayiii. 256.. 
 
 6 Cox (J. C. 219 .. 
 K. vt H. I'jI 
 
 Jlolt on Libel, 231) 
 f) Ji. .^ Ad. 502 .. 
 ICr. &J. 47 
 M8S. C. S. G. .. 
 IIA. &E. 322 .. 
 
 II A. & E. 131 .. 
 
 1 Di-n. C. C. 30 . . 
 
 2 C. & P. 563 
 MSS. C. S. G. .. 
 
 I Lord Eaym. 253 
 
 7 0. & P. 582 
 5 Halst. 163 
 
 3 Inst. 166 
 
 II Cox C. C. 414.. 
 5 B. & A. 330 . . 
 M. &JI. 433 
 
 9C. &P. 471 
 
 3T. E. 646 
 
 1 Campb. 469 .. 
 
 PAOK 
 
 2(t6, 210 
 21U, 225 
 ... IIG 
 123, 149 
 10, 11,67 
 ... 540 
 445, 485 
 ... 208 
 ... 541 
 ... 437 
 456, 463 
 ... 437 
 ... 376 
 3, 240, 251 
 ... 42 
 18 
 ... 428 
 ... 326 
 441, 460 
 2 
 116,144 
 437, 570 
 ... 215 
 ... 353 
 ... 398 
 ... 415 
 
 H. 
 
 Hagan, Eeg. v. 
 
 BC. &P. 167 
 
 525 
 
 Hailes v. Marks 
 
 7H. &N. 56 
 
 390 
 
 Hailey, Eex v. 
 
 E. & M. N. P. E. 94 ... 
 
 92,97 
 
 
 IC. &P. 258 
 
 92 
 
 Haines, Eeg. v. 
 
 IF. &F. 86 
 
 510 
 
 Hains, Eex v. 
 
 Comb. 337 
 
 418 
 
 Haire v. AVilson 
 
 9B. &C. 643 
 
 222 
 
 Hake, Eeg. D. 
 
 1 Cox C. C. 226 
 
 514 
 
 Hall's case 
 
 2 Leacb, 559 
 
 449,:,0o 
 
 
 1 Lew. 110 
 
 493 
 
 HaU, Eeg. V 
 
 8C. &P. 358 
 
 94,351 
 
 
 IF. &F. 33 
 
 iStr. 416 
 
 124 
 
 Eex r 
 
 213 
 
 r. Ball 
 
 3M. &Gr. 242 
 
 336,346 
 
 Hallett, Eeg. v. 
 
 9C. &P. 748 
 
 526,530 
 
 
 2Den. C. C. 237 
 
 2M. &Eob. 238 
 
 3 
 
 • V. Cousens ... 
 
 559 
 
 Halliday, Eeg. v. ... 
 
 Belie. C. 257 
 
 623 
 
 Hamber v. Eoberts... 
 
 7C. B. 861 
 
 435 
 
 Handdin v. Shelton 
 
 3F. &F. 133 
 
 314 
 
 Hamilton, Eeg. r. ... 
 
 1 C. & K. 212 
 
 248 
 
 Eexr. ... 
 
 7C. &P. 448 
 
 156 
 
 Hammond r. Chitty 
 
 MSS. C. S. G 
 
 98 
 
 Eexr. ... 
 
 1 Leach, 444 
 
 250 
 
 
 2 Esp. E. 718 
 
 6CoxC. C. 167 11 
 
 150 
 
 Hamp, Eeg. i". 
 
 J, 142, 342, 622 
 
 Hand ley, E. r. 
 
 13CoxC. C. 79 
 
 634 
 
 Hankins, Eeg. v. 
 
 2C. &K. 823 
 
 341,545 
 
 Hanson's case 
 
 31 St. Tr. 4281 
 
 384 
 
 Hanson, Eex r. 
 
 Paley Conv. 45 
 
 366 
 
 Harborne, Eex v. ... 
 
 2A. &E. 540 
 
 266,324 
 
 Harding, Eex v. 
 
 MSS. C. S. G 
 
 493 
 
 . V. Greening 
 
 8 Taunt. 42 
 
 216
 
 Table of Cases. 
 
 XXVll 
 
 Hardley v. Carter . . . 
 
 Hard wick, Rex v. ... 
 Hardy's case... 
 Hare, Reg. v. 
 
 R. v 
 
 Hargest r. Fothergill 
 Hargrave, Rex v. 
 Haiiing, Rex v. 
 Harman v. Delany ... 
 Harmer, Reg. v. 
 Harney, Reg. v. 
 Harrington v. Fiy . . . 
 Harris's case 
 Harris, Reg. v. 
 
 Rex V. 
 
 n.v 
 
 V. Hill 
 V. James 
 V. Saunders... 
 V. Tippet ... 
 — V. Thompson 
 
 Harrison's case 
 Harrison v. Busli 
 
 Rex V. 
 
 Hart, Rex v.... 
 
 V. Von Gumpack 
 
 Hartshorne v. Watson 
 Harvey's case 
 Harvey, Reg. v. 
 
 -R. jj 
 
 Rex V. 
 
 ■ V. Clayton ... 
 
 V. French . . . 
 
 V. Mitchell ... 
 
 V. Morgan . . . 
 
 Harwood v. Goodwright 
 Hassett, Reg. v. 
 Hastings, Rex v. 
 Hawdon, Reg. v. ... 
 Hawes, Reg. v. 
 Hawkesworth r. Showier 
 Hawkins, Rex v. 
 Haworth, Rex v. 
 Hay, Reg. r. 
 Haynes, Rex v. 
 Hay ward, Reg. v. ... 
 
 Rex V. 
 
 Hazell, Reg. v. 
 Hazy, Rex v. 
 Healy, Rex v. 
 Heane, Reg. v. 
 Hearn, Reg. v. 
 
 ^ 8 New Hampshire Reports, American 
 
 I Reports... ... ... ... ... 352 
 
 1 Phill. Ev. 408 470 
 
 24 St. Tr. 199 . ..150, 383, 385, 553, 560, 569 
 
 aCoxC. C. 247 387 
 
 13CoxC. C. 174 80 
 
 5C. &P. 303 341 
 
 5C. &P. 170 609 
 
 R. & M. C. C. R. 39 319 
 
 Barnard K. B. 289 207 
 
 2CoxC. C. 487 495 
 
 4 CoxC. C. 441 523 
 
 R. & M. N. P. R. 90 436 
 
 2 Leach, 800 36 
 
 MSS. C. S. G 581 
 
 4 CoxC. C. 147 506 
 
 4 CoxC. C. 440 522 
 
 4F. &F. 342 377 
 
 7C. &P. 253 ... 103 
 
 7 C. & P. 581 563 
 
 5B. &A. 926 67,76,77 
 
 R. & M. C. C. R. 338 94, 483, 505, 508, 532 
 
 6C. &P. 105 263 
 
 2 St. Tr. 1038 388 
 
 lOCoxC. C. 541 368 
 
 3 Stark. R. 140 549 
 
 45 L. J. Q. B. 545 633 
 
 4B. &C. 411 423 
 
 2 Camp. 637 573,577 
 
 13 C. B. 333 
 
 4 St. Tr. 492 
 
 5E. &B. 344 
 
 2 Keb. 841 
 
 30 St. Tr. 1131 
 
 10 East, 94 
 
 1 Leach, 145 
 
 2 Burn's Ecc. L. 779 
 43L. J. P. C. 25 
 
 5 Bing. N. C. 477 
 
 2EastP. C. 658 
 
 8CoxC. C. 99 
 
 llCoxC. C. 546 
 
 2B. &C. 257 
 
 2 Swanst. 221, n 
 
 2Tvrw. 585, 1 C. & M. 11 
 
 2 M. & Rob. 366 
 
 2 Stark. R. 17 
 
 Cowp. 87 ... 
 
 8 CoxC. C. 511 
 
 7 C. & P. 152 
 
 3P. &D. 44 
 
 1 Den. C. C. 270 
 
 12M. &W. 45 
 
 10 East R. 211 
 
 4C. &P. 254 
 
 2F. &F. 4 
 
 R. & M. N. P. R. 
 
 2 C. & K. 234 . 
 6 C. & P. 157 . 
 
 8 Cox C. C. 443 . 
 2 C. & P. 458 . 
 R. & M. N. C. R. 
 4 B. & S. 947 
 C. & M. 109 
 
 298 
 
 1 
 
 193 
 
 524 
 
 191 
 
 ... 198 
 
 ... 102 
 
 218 
 
 219 
 
 191 
 
 193 
 
 627 
 
 483 
 
 64,81 
 
 437 
 
 2 JO, 221 
 
 ... 542 
 
 210 
 
 345 
 
 340 
 
 323 
 
 472 
 
 603,604 
 
 229 
 
 300 
 
 (;2t), 624 
 
 365 
 
 ..342,343,477 
 
 540 
 
 71,72 
 
 547 
 
 355 
 533 
 
 332,366 
 
 392 
 
 5 
 
 ...4.-.3, 457,504
 
 XXVI II 
 
 Ilcarno, Kcx r. 
 
 I'. Slowt'll ... 
 
 1 Teuton, Ki';,' r. 
 Helior /•. J5eiiliur,st ... 
 
 .lltiii|i, lu'.\ r. 
 Jli'iupsk'iul, Ke.x ?'.... 
 llfuiloisou V. IJroomlieucl 
 lloiidy, Keg. *'. 
 lieiiman v. Lester ... 
 
 11. Lcstoi" ... 
 
 llemy )'. Adey 
 
 V. Lee 
 
 V. Leigh 
 
 Ileuwood V. Harrison 
 llepi>er, Rex v. 
 Herbert, Hex v. 
 Heme, iieg. v. 
 Herriott v. Stuart ... 
 Hevey, Kex r. 
 Hewelt, Reg. v. 
 Hewius, Reg. r. 
 Hewitt, Reg. v. 
 
 Hewlett, Reg. r 
 
 Hibbard, R. v. 
 Hibberd v. Kniglit... 
 Hickman, Eex t). ... 
 
 Higgiiis, Rex v. 
 Higgs V. Dixon 
 Higham v. Eidg^vay 
 Highlield, Rex v. ... 
 Higson, Reg. v. 
 Hiibers, Eex v. 
 Hilditcb, Rex v. 
 
 Hill's case 
 
 Hill, Reg. V 
 
 Kex V. ... 
 
 V. Coonibe 
 
 Hillam, R. u 
 Hilton V. Eckersley 
 Hind, Reg. v. 
 
 Rex V. ... 
 
 Hinkley, Reg. v. .. 
 Hinks, Reg. v. 
 Hinley, Reg. v. 
 
 Hinxuian's case 
 Hirst's case ... 
 Hoare v. Silverlock.. 
 
 Hobson's case 
 Hodge's case 
 
 H iidgldss, R. V. 
 
 Hodgson's case 
 Hodgson, Rex v. .. 
 
 ■ V. Scarlett . . 
 
 Hodnett, Rex /J. 
 V. Formal! 
 
 Tahlc of Cases. 
 
 4C.ScV.2\r> 
 
 12 A. cSi K. 7i:> ... 
 
 a F. iSi F. HI!) ... 
 
 (Vo. ('ur. 211 
 2Ka.sl 1'. (J. IIIG 
 f) C. & P. 4()« 
 R. iSi R. 344 
 4 H. & N. 569 ... 
 
 4 Uox C. C. 243 ... 
 
 12 C. B. (N.S.) 77(; 
 
 ;ji L. J. c. P. ;3G(; 
 
 3 East R. 221 
 2Cliitt. R. 124 ... 
 3 Campb. 5l)2 
 41 L. J. C. P. 200 
 R. iS: M. N. P. R. 210 
 1 East P. C. 461 ... 
 
 1 Str. 195 
 
 1 Esp. 437 
 1 Leach, 232 
 C. & M. 534 
 
 9 C. & P. 786 
 
 5 CoxC. C. 162 ... 
 MSS. C. S. G. ... 
 
 13 CoxC. C. 82 ... 
 2Exch. R. 11 ... 
 
 1 Leach, 318 
 
 R. & M. C. C. R. 34 
 3 C. vSc P. G03 
 
 2 Stark. R. 180 ... 
 
 10 East R. 109 ... 
 MSS. C. S. G. ... 
 2C. &K. 769 ... 
 2 Chitt. R. 163 ... 
 5C. &P. 299 ... 
 Rose. Cr. Ev. 45 ... 
 2 Moo. C. C. R. 30 
 
 5 CoxC. C. 233 ... 
 2 Den. C. C. 254... 
 R. & R. 190 
 
 1 Stark. R. 369 ... 
 Mann. Dig. 236 ... 
 12 CoxC. C. 174... 
 
 6 E. & B. 47 
 Belie. C. 253 ... 
 R. & R. 253 
 
 3B. &S. 885 
 1 Den. C. C. 84 ... 
 2^L &Rob. 524... 
 1 Cox C. C. 12 ... 
 1 Leach, 310 
 1 Lew. 46 
 12Q. B. 624 
 9 C. & B. 20 
 
 1 Lew. 66 
 
 2 Lew. 227 
 
 2 East P. C. 658 ... 
 
 7C. &P. 298 ... 
 
 39 L. J. M. C. 14 ; 1 L. 
 
 1 Lew. 236 
 
 R, &R. 211 
 
 IB. & A. 232 ... 
 
 IT. R. 96 
 
 1 Stark. R. 90 ... 
 
 R. C 
 
 PAon 
 
 492 
 
 190 
 
 265 
 
 31 
 
 2.")0 
 
 97,592 
 
 397 
 
 181 
 
 ...261,517,520 
 
 579 
 
 348 
 
 419 
 
 567 
 
 339 
 
 185, 186, 190, 192 
 
 66,71 
 
 117 
 
 128 
 
 187 
 
 ...119,385,485 
 
 459 
 
 59 
 
 169 
 
 321 
 
 ...162, 163,168 
 
 540,552 
 392 
 
 241,253 
 
 494 
 
 433 
 
 363 
 
 479 
 
 505 
 
 116 
 
 ... 565 
 
 472 
 
 326 
 
 249 
 ...'612,628,629 
 
 396 
 
 396 
 
 561 
 
 479 
 
 173 
 
 359 
 
 278 
 
 336 
 
 620 
 
 344,375 
 
 344,349 
 
 505 
 
 506 
 
 210 
 
 183 
 
 5i)4 
 
 321 
 
 483 
 
 388, 389 
 C. R. 212 4,70 
 
 400 
 
 576 
 
 181,183 
 
 299 
 
 433
 
 Table of Cases. 
 
 Hofjg, Rex V, 
 Holden, Reg. v. 
 
 ■ R. v 
 
 Holding, Rex v. 
 
 Holds worth v. Mayor of T)art- 
 
 nioutli 
 Holland, Rex u. 
 Hollingberry, Rex /•. 
 Hollingsliead, Rex v. 
 Holmes, Reg. v. 
 
 R. -y. 
 
 V. Simmonds 
 
 Holt, Reg. V 
 
 Rex V. ... 
 
 Holtham, Reg. v. 
 
 Holy Trinity, Kingston 
 
 Hull, Rex V. 
 Home t\ Bentinck ... 
 Homer v. Taunton . . . 
 Hood, Rex v. 
 Hook, Reg. V. 
 Hooper, Reg. v. 
 Hope, Rex v. 
 
 ■ V. Liddell 
 
 Hopewell r. De Pinna 
 Horn V. Noel 
 
 V. Lord F. C. Bent 
 
 Hornbrook, Reg. y. ... 
 Hornby ?;. Close 
 Home, Rex v. 
 
 inck 
 
 Home Tooke's case... 
 Homer, Reg. v. 
 
 V. Liddiard ... 
 
 Hornsea, The (Jueen v. 
 Horton, R. v. 
 Hough, Rex v. 
 Houseman v. Roberts 
 Houstman v. Thornton 
 How V. Hall... 
 Howard v. Reg. 
 
 Rex V. 
 
 V. Canfield... 
 
 V. Smith ... 
 
 V. Williams 
 
 Howarth, Reg. v. ... 
 Howe, Rex v. 
 
 Howell, Reg. v. 
 
 V. Locke 
 
 Howes, Rex v. 
 Hubbard v. Lees 
 Hube, Rex v. 
 Hucks, Rex r. 
 Huddersfield, Reg. v. 
 Hudson, Reg. v. 
 
 Huet, Rex v. 
 Hughes, Reg. v. 
 
 6 C. & P. 176 
 
 8 C. & P. 606 
 12 Cox C. C. 166 
 Archb. C. P. 193 
 
 1 2 M. & Rob. 153 
 
 4 T. R. 691 
 
 4B. &C. 329 ... 111,15'; 
 
 4 C. & P. 242 
 2 F. & F. 788 
 
 1 C. & K. 248 
 41 L. J. M.C. 12 
 L. R. 1 P. & M. 523 
 Bell C. C. 280 
 
 2 Leach, 593 
 
 5 T. R. 436 
 MSS. C. S. G. 
 
 l7B. &C. 611 
 
 2 Brod. & B. 162 
 5 H. & N. 661 
 R. & M. C. C. R. 281 
 D. & B. 606 
 MSS. C. S. G. 
 
 1 M. & Rob. 396 
 
 24 L. J. Ch. 691 
 
 2 Campb. 113 
 1 Camp. 61 
 
 4 Moore, 563 
 
 1 Cox C. C. 54 
 36 L. J. M. C. 43 
 11 St. Tr. 283 
 
 2 Co\vY>. 672 
 
 25 St. Tr. 1 
 
 I Cox C. C. 364 
 Rep. by Dr. Croke 
 23 L. J. R. M. C. ^ 
 
 II Cox C. C. 670 
 R. & R. 120 
 
 5 C. & P. 394 
 Holt R. 242 
 14 East, 276 
 11 LawT. 629 
 1 M. & Rob. 187 
 
 5 DowL P. R. 417 
 
 3 M. & Gr. 255 
 
 9 M. & W. 725 
 Grcenw. Coll. St. 137 
 
 7 C. & P. 268 
 1 Campb. 461 
 
 4 F. & F. 160 
 
 1 Den. C. C. 1 
 
 2 Camp. 15 ... 347,561, 
 
 6 C. & P. 404 
 L. R. 1 Ex. 255 
 Peuke R. 132 
 1 Stark. R. 521 
 
 7 E. & B. 794 
 
 1 F. & F. 56 
 Bell C. C. 263 
 
 2 Leach, 820 
 D. & B. 188 
 1 C. & K. 519 
 Joy, 39 ... 
 
 XXIX 
 
 PAGE 
 
 ... 512 
 
 563, 583 
 
 14 
 
 ... 573 
 
 ... 594 
 
 428, 429 
 159, 319, 394 
 ... 505 
 ... 612 
 443, 447 
 388, 577 
 ... 298 
 ... 377 
 392, 408 
 221,224 
 ... 601 
 
 ... 348 
 
 553, 554 
 210 
 335 
 
 ...79,80 
 509 
 504 
 597 
 324 
 312 
 181 
 446 
 173 
 549 
 69 
 
 150, 154 
 461 
 299 
 634 
 265 
 376 
 341 
 323 
 343 
 319 
 84 
 569 
 348 
 341 
 481 
 251 
 580 
 123 
 354 
 
 629, 630 
 .. 460 
 ,. 425 
 .. 330 
 41, 358 
 .. 523 
 99 
 
 153, 157 
 
 385, 506 
 8 
 
 '78, 55(; 
 472 
 
 627, 
 
 37 
 
 .121,
 
 XXX 
 
 Table of Cases. 
 
 llu^^'lii'S, Ht'j,,'. I'. 
 
 : V. Hugi'l-S 
 
 I luiiiplirfys, Pl.r jKdl 
 I Imuiiliiics, Hex v. .. 
 J I lint, JU'j,'. V. 
 
 Rux V. 
 
 r. Goodlaki' 
 
 I'. Massey 
 
 Hunter's case 
 Hunter, Rex v. 
 
 TTui'd V. Mming 
 Hum'll, Eeg. v. .. 
 Hutchinson, Rex r... 
 
 t\ Bern; 
 
 Hutton, In re 
 Hyde, Reg. t\ 
 
 1 C.)X ('. C. '44 
 8 M.& W. l-2:i 
 
 4 Sess. C. 1 71) 
 MSS. C. S. G. 
 H C. & P. 042 
 
 2 Cox C. C. 239 
 
 2 C(jx C. f. 2(;i 
 4CoxC. C. 11!) 
 
 3 B. & A. ")(;() 
 
 2 Camp. R. 583 
 43 L. J. C. P. 54 
 
 5 B. & Ad. 903 
 
 2 Leach, 024 
 
 4 C. & P. 128 
 
 3 C. & P. 591 
 
 1 C. & P. 372 
 3 F. & F. 271 
 
 2 B. & C. 008 
 
 2 M. & Rob. 1 
 1 Curt. 595 
 
 3 Cox C. C. 90 
 
 lO, 32 
 
 . . . 389 
 
 ... 437 
 
 ... 432 
 
 ... 344 
 
 ... 126 
 
 ... 300 
 
 ... 525 
 
 ... 505 
 ), 344, 384, 385 
 ..220,394,395 
 
 210 
 
 317 
 
 2r,l 
 
 339 
 
 597 
 
 550 
 
 91 
 
 359 
 
 538 
 
 324 
 
 518 
 
 lUlerton I'. Hderton. 
 
 2H. Blac. 145 
 
 305 
 
 lies, Rexr 
 
 Hard. 118 
 
 88 
 
 Ingham, Reg. v. 
 
 14Q. B. 396 
 
 72 
 
 Ingram v. Dade 
 
 MS. 1 PhilLEv. 124 ... 
 
 630 
 
 Innis V. Cainitbell . 
 
 1 Rawle, 373 
 
 325 
 
 Ireland v. Powell . 
 
 PeakeEv. 15 
 
 363 
 
 Irving, Reg. v. 
 
 2 M. & Rob. 75 
 
 103 
 
 Isaacs, Rexr. 
 
 MSS. Bay ley, J 
 
 322 
 
 Jackson's case 
 Jackson, Reg. v. 
 
 Rex V. 
 
 V. Allen 
 
 V. Thoma.^on 
 
 Jacob V. Lee... 
 
 V. Lind.say 
 
 Jacobs' case . . . 
 Jacobs, Reg. v. 
 
 Eex r. 
 
 V. Layborn .. 
 
 Jagger, Rex v. 
 James, Reg. v. 
 Rex V. 
 
 Jarvis, Reg. v. 
 
 R. f. ... 
 
 Jeans i'. Wheedon . . 
 Jeflreys, Rex i\ 
 Jekyll r. Sir John M 
 Jelfs r. Ballard 
 
 Jelly, R.r 
 
 Jellyman. Reg. v. .. 
 Jenkins, Reg. r. 
 
 1 Lew. 270 
 MSS. C. S. G. ... 
 6CoxC. C. 525 ... 
 1 Leach, 267 
 3Stark. R. 74 ... 
 31 L. J. Q. B. 11 ... 
 2M. &Rob. 33 ... 
 1 East R. 460 
 
 I Leach, 309 
 4CoxC. C. 54 ... 
 iCoxC. C. 173 ... 
 R. & M. C. C. R. 140 
 
 II M. &W. 685 ... 
 
 MSS 
 
 2CoxC. C. 227 ... 
 Show. 397 
 
 R. &R. 19 
 2M. &Rob. 40 ... 
 Deai-s. C. C. 552 ... 
 37L. J. M. C. 1 ... 
 2M. & Rob. 486 ... 
 
 1 Str. 446 
 
 2 N. R. 341 
 
 IB. & P. 468 ... 
 10 Cox C. C. 553... 
 8C. &P. 604 ... 
 1 CoxC. C. 177 ... 
 
 ... 78 
 ... 404 
 611,620 
 ... 253 
 ... 345 
 ... 593 
 ... 340 
 329, 566 
 ... 505 
 ... 449 
 111,144 
 ... 310 
 627,628 
 ... 625 
 ... 402 
 92, 108 
 ... 299 
 ... 609 
 ... 376 
 ... 443 
 330, 506, 531 
 ... 407 
 ... 181 
 ... 366 
 ... 318 
 609, 625 
 ... 606
 
 Jenkins, Rex v. 
 
 R. y. 
 
 Jenks's case 
 
 Jenner v. A'Beckett 
 Jenour, Rex v. 
 Jepson, Rex tj. 
 John's case ... 
 John, Rex v. 
 
 R. V 
 
 Jolmson, Reg. v. .. 
 
 Rex V. 
 
 Jollitfe, Rex v. 
 Jones's case ... 
 Jones, Reg. r. 
 
 Rex i: 
 
 R. V. 
 
 V. Edwards... 
 
 — V. Fort 
 
 — V. Jones 
 
 . V. Mason 
 
 u Morrell ... 
 
 r. Randall ... 
 
 I'. Stroud ... 
 
 V. Tarleton ... 
 
 Jordaine v. Laslibrooke 
 
 Journeymen Tailors of Cam- ) 
 
 bridge, Rex v \ 
 
 Table of Cases. 
 
 R. & R. 492 
 
 38 L. L. M. C. 82 
 
 2 East P. C. 514 ... 
 
 41 L.J. Q. B. 14... 
 7 Mod. 400 
 
 2 East P. C. 1115 
 lEast P. C. 357 ... 
 7 C. & P. 324 
 13 Cox C. C. 100... 
 2C. &K. 3.54 ... 
 2C. &K. 394 ... 
 2E. &E.-613 
 
 42 L.J. M. C. 41... 
 3M. &S. 550 ... 
 7 East R. 65 
 MSS. C. S. G. ... 
 
 4 T. R. 285 
 R. &R. 152 
 
 1 Den. C. C. 218... 
 
 1 Den. C. C. 166... 
 
 5 CoxC. C. 226 ... 
 MSS. C. S. G, ... 
 7 C. & P. 239 ... 
 
 2 Campb. 133 
 2C. &P. 630 
 
 3 Campb. 132 
 6C. &P. 137 
 
 4B. &Ad. 345 ... 
 PeakeR. 37 
 Carr. Supp. 137 ... 
 31 How. St. Tr. 315 
 C. &M. 614 
 
 11 CoxC. C. 558... 
 
 12 Cox C. C. 241... 
 M'Clel. & Y. 139... 
 M. & M. 196 
 
 9M. &W. 75 ... 
 5M. &W. 523 ... 
 
 2 Str. 833 
 
 1 C. &K. 266 ... 
 
 Cowp. 17 
 
 2C. & P. 196 
 9M. &AV. 675 ... 
 7 T. R. 609 
 
 uOi, 
 
 8 Mod. 11 
 
 XXXI 
 
 rAOE 
 
 ... 485 
 ... 356 
 ... 393 
 207, 225 
 ... 179 
 240. 250 
 358,' 625 
 487, 508 
 . . . 635 
 352, 518 
 ... 515 
 ... 320 
 7 
 ... 142 
 220, 334 
 ... 509 
 113,354 
 445,485 
 233,247 
 ... 547 
 ... 252 
 ... 494 
 ... 506 
 ... 603 
 493, 494 
 ... 369 
 36, 81 
 34, 110,142 
 ... 82 
 ... 503 
 ... 610 
 ... 265 
 ... 265 
 ... 457 
 ... 340 
 ... 627 
 ... 434 
 45 
 ... 333 
 ... 486 
 ... 408 
 ... 568 
 ... 349 
 603,611 
 
 ... 109 
 
 Kain, Reg. r. 
 Keable v. Paine 
 Keeling v. Ball 
 Kelly, Rex v. 
 
 ('. TinliuL 
 
 V. Partington 
 
 Kelsey's case 
 Kemp V. Khig 
 Kempton v. Cross ... 
 Kenilworth, Reg. v. 
 Kenrick, Reg. v. 
 Kensington v. Inglish 
 
 K. 
 
 8C. &P. 187 
 8 A. &E. 555 ... 
 Peake Ev. App. xxxii. 
 R. & M. C. C. R. 113 
 Carr. Supp. 42 ... 
 35 L. J. Q. B. 231 
 4B. &Ad. 700 ... 
 5B. &Ad. 645 ... 
 
 2 Lew. 45 
 
 2 M. & Rob. 437... 
 C. T. & H. 108 ... 
 7Q. B. 642 
 
 5Q. B. 49 
 
 8 East, 273 
 
 ... 263 
 
 ... 417 
 
 ... 434 
 
 ... 398 
 
 ... 399 
 
 188, 192 
 
 ... 188 
 
 ... 211 
 
 ... 605 
 
 ... 597 
 
 ... 418 
 
 ... 337 
 
 125, 127, 129 
 
 ... 333
 
 X X X 1 1 
 
 Kciiwoiiliy, l!i^\ )'. 
 Kfir, l\c},'. V. 
 
 Kl'VH, \{ili!. V. 
 KillllnT, l{(% V. 
 
 Kiiiilicrty, Hc;^'. r. 
 Kiiii|>t(>ii, Hi'}^'. V. 
 Kill'; V. I leg. 
 Reg. V. 
 
 Rex %>. 
 
 Kiuglake, R. v. 
 Kingslou, Rt:x v. ... 
 
 (Duchess oQ 
 
 Kiiiiicreley, Rex v. ... 
 
 Kirtlaiid v. Pouusett 
 Kirton, Reg. v. 
 Kitsoii, Reg. V. 
 Knell, Rex v. 
 Knight, Reg. v. 
 Knill, Rex v. 
 Kohn, Reg. v. 
 Koops, Rex V. 
 Koster v. Reed 
 Kroehl, Rex v. 
 
 Tabic of Cases. 
 
 IB. etc;. 711 
 HC. &1M7G 
 2 Co.x C. C. 225 . 
 ■.iCoxC. (;. 223 . 
 1 Lew. f52... 
 ■2 Cox C. U. 2'.m 
 1 4 (.1 V,. 3 1 
 
 7 (,>. B. 7S2 
 
 1 ("ox C. (J. 232 . 
 
 2 Chitt. R. 217 . 
 2 T. R. 234 
 
 11 CoxC. C. 4!)!>. 
 
 8 East R. 41 
 
 4 C. & P. 3B7 
 
 11 St. Tr. 202 , 
 iStr. 193... 
 1 Bhick. 2!)4 
 1 Taunt. 570 
 (; Cox C. C. 393 
 Dears. C. C. 187 
 1 Barnard, 305 
 L. & C. 378 
 
 5 B. & A. 929 
 4 F. & F. 68 
 
 () A. &. E. 198 
 
 6 B. & C. 19 
 
 6 Stark. R. 343 
 
 VMiR 
 1(»2 
 
 472 
 
 394 
 
 .'>05 
 
 129 
 
 37,63 
 
 53,100 
 
 .. Ill', 130, i:{7, l.')5 
 
 G20 
 
 150 
 
 427 
 
 573 
 
 370 
 
 443 
 
 .. 207,418,540,567 
 127, 128, 130 
 
 206 
 
 404 
 
 10 
 
 341,344 
 
 220 
 
 321 
 
 70,95 
 
 126 
 
 85 
 
 323 
 
 157, 561 
 
 Lacon v. Higgins 
 
 Lacy, Reg. v. 
 
 Lafone, Rex v 
 
 Laing ?». Barclay 
 Lake v. King 
 Lambe's case 
 
 Lambert, Rex r 
 
 Lane v. Goodwin 
 
 Langbridge, Reg. v. 
 
 Langley, Reg. i^ 
 
 Langiuead, Reg. V 
 
 Luntrissent, Rex v 
 
 Lapsley V. Grierson 
 Latham v. Reg. 
 
 Latimer, Reg. r 
 
 Laugher, Reg. v 
 
 Lau'ghton v. The Bishop of 
 
 Sodor and Man 
 
 Lavey, Reg. v 
 
 I'. Reg. 
 
 Lawes v. Reed 
 
 Lawless v. The Anglo-Egyptian 
 
 Cotton and Oil Company 
 Lawley's (Lady) case 
 
 Lawlor, Reg. v 
 
 Lawrence v. Clark ... 
 Laycock, Rex V. 
 Layer's case... 
 
 Lea, Rex r. ... 
 Leach v. Simpson 
 
 L. 
 
 3 Stark. R. 178 
 3 Cox C. C. 517 
 
 5 Esp. 155 
 3 Stark. R. 38 
 
 1 Saund. 131 
 
 2 Leach, 552 
 2 Leach, 257 
 2 Campb. 398 
 4Q. B. 361 
 
 1 Den. C. C. 448... 
 
 6 ]\Iod. 125 
 L. &C. 427 
 MSS. C. S. G. ... 
 IH. L. C. 498 ... 
 9 Cox C. 516 ... 
 
 15 Q. B. 1077 
 
 2C. &K. 225 ... 
 
 42 L. J. P.C. 11 ... 
 
 3C. &K. 26 
 
 2 Den. C. C. 504... 
 2 Lew. 132 
 
 I 38 L. J. Q. B. 129 
 
 BuU. N. P. 287 ... 
 6 CoxC. C. 187 ... 
 14 M. & W. 250 ... 
 4C. &P. 326 
 12 Yin. Abr. 96 ... 
 6St. Tr. 259 
 
 16 How. St. Tr. 215 
 2 Moo. C. C. R. 9 
 
 1 L. & E4. R. 58... 
 
 , 440, 449, 500, 508, 
 . 177,178,200,224, 
 
 312, 
 
 525, 
 383, 
 
 421 
 146 
 611 
 549 
 185 
 533 
 506 
 384 
 298 
 
 519 
 
 205 
 
 321 
 
 404 
 
 305 
 
 143 
 
 229 
 
 466 
 
 191 
 
 22,57 
 
 41,56,57 
 507 
 
 189 
 
 625 
 
 56 
 
 342 
 
 91 
 
 330 
 
 343, 555, 575, 600 
 
 506 
 
 320, 372, 406 
 360
 
 Leader v. Barry 
 Leaf V. Butt . . . 
 Leatham, Reg. v. 
 Ledbetter, Reg. v. 
 Lee's case 
 
 Lee, Reg. v 
 
 V. Rex . . . 
 
 V. Birrell 
 
 Leech, Rex v. 
 Leeds v. Cook 
 Leefe, Rex v. 
 Leeser's case 
 Le Faun v. Malcomson 
 Legatt V. Tollervey... 
 Legge, Reg. v, 
 Leigh, Reg. v. 
 Lej)iot iJ. Browne ... 
 Levi I'. Levi... 
 Levison, 'R. v. 
 Levy, Rex v. 
 
 V. Pope 
 
 Lewis, Rex v. 
 
 R. V. 
 
 — V. Clement 
 
 — V. Hartley 
 
 — r. Levy 
 
 — V. Sapio 
 
 — V. Walter 
 
 Liebman y. Pooley... 
 Lightfoot V. Cameron 
 Limer, Rex v. 
 Lincoln, Rex v. 
 Lindsay v. Cundy . . . 
 Lingate, Rex v. 
 Lippiatt, Reg. v. 
 Llanfaethly, Reg. v. 
 Lloyd's case... 
 Lloyd, Rex v. 
 
 • V. Fresli field 
 
 v. Mostyn ... 
 
 V. Passingliam 
 
 Lock V. Haytou 
 
 Locker, Rex v. 
 
 Lockhart's case 
 
 Lockyer, Rex v. 
 
 Logan V. Alder 
 
 Lolley, Rex v. 
 
 London (Mayor of), Reg. v. 
 
 London, R. v. 
 
 Long's case ... 
 
 Long, Rex v. 
 
 Lookup, Rex v. 
 
 Lovat's (Lord) case... 
 
 Lovett, Reg. v. 
 Lowe ('. Jolilfe 
 Lows V. Telford 
 
 Tabic of Cases. 
 
 1 Esp. R. 353 . 
 C. &M. 451 
 8 CoxC. C. 498 . 
 3C. & K. 108 
 M'NaU. Ev. 634 .. 
 4r. &F. 63 
 R. &R. 361 
 
 2 Stark. Ev. 324 .. 
 MSS. Bavlev, J. .. 
 
 5 Esp. 123 " 
 
 3 Campb. 337 
 
 2 Man. & Ry. 119 
 
 4 Esp. 256 
 
 2 Campb. 134 
 Cro. Jac. 479 
 1 H. L. 637 
 14 East R. 302 .. 
 
 6 CoxC. C. 220 .. 
 lOA. &E. 398 .. 
 
 1 Salk. 7 
 
 6C. &P. 239 .. 
 11 CoxC. C. 152.. 
 
 2 Stark. R. 458 .. 
 Moo. & M. 410 .. 
 6C. &P. 161 .., 
 
 4 Esp. 225 
 
 11 Cox C. C. 404.. 
 
 12 CoxC. C. 163.. 
 3B. &A. 702 .. 
 7C. &P. 405 .. 
 E. B. &E. 537 .. 
 M. & Mallv. 39 .. 
 4B. &A. 645 
 
 1 Stark. R. 167 .. 
 
 2B1. 1113 
 
 MSS. C. S. G. .., 
 
 R. &R. 421 
 
 45 L. J. Q. B. 381 
 
 1 PhiU. Ev. 410 ... 
 iCoxC. C. 56 .., 
 2E. &B. 940 
 
 2 East P. C. 1122 
 4C. &P. 233 .., 
 6C. &P. 393 
 MSS. C. S. G. ... 
 2C. &P. 329 ... 
 lOM. & W. 478 ... 
 16Ves. 64 
 Fortesc. 246 
 
 5 Esp. 107 
 
 1 Leach, 386 
 
 5 Esp. 107 
 
 3 Tvrw. R. 557 ... 
 R. & R. 237 
 
 5 Q. B. 555 
 12 Cox C. C. 50 ... 
 1 Havw. 524 
 6C. & P. 179 ... 
 3 Burr. 1901 
 1 s St. Tr. 53( ) ... 
 !»St. Tr. 617 
 9C. &P. 462 
 IW.BI. 3(i5 
 45 L. J. Ex. 613 ... 
 
 XXXUl 
 
 PAGE 
 
 427 
 
 341 
 
 483 
 
 527 
 
 149 
 
 489, 521, 529 
 
 601 
 
 149 
 
 72 
 
 184 
 
 ... 541 
 ... 43 
 ... 344 
 . 39,40,82 
 ... 394 
 ... 179 
 ... 428 
 ... 62 
 ... 320 
 ... 399 
 ... 120 
 ... 552 
 ... 404 
 ... 550 
 474, 508 
 573,576 
 ... 120 
 ... 50 
 ... 184 
 ... 345 
 ... 184 
 436, 437 
 ... 183 
 ... 346 
 ... 599 
 ... 492 
 37, 399 
 ... 632 
 ... 460 
 ... 400 
 ... 338 
 ... 250 
 ... 359 
 ... 447 
 ... 493 
 ... 541 
 ... 545 
 ... 577 
 ... 610 
 ... 625 
 ... 483 
 ... 143 
 ... 435 
 ... 267 
 432,520 
 66, 96 
 ... 441 
 372, 457 
 ... 100 
 ... 150 
 ... 627 
 .202, 212,221 
 . . . 594 
 ... 633
 
 XXXIV 
 
 Lucas I'. NiiviiHiliosUi 
 Luckliur.st, lU'g. r. ... 
 IjUcv, l{i'^r. I'. 
 Jjiiiulry, U. V. 
 Lunniss v. Uow 
 Luniiy, lit'K- ''• 
 lAilanc, Hi't,'. V. 
 Lymh r. Clerke 
 Ijyiie, C.C parte 
 Lynn, Ecx r. 
 Lyon's case 
 lic'.v. 
 
 lahlc of Cases. 
 
 1 Km]). 1!. 2!K; 
 
 IVars. C. C 
 
 1 ('. iS: M. 510 
 
 :5S L. .1. M. C. 8(5 
 
 10 A.&, K. G()(J 
 
 ()(J.)X C. ('. 477 
 
 8C()xC. C. 38 
 
 3 Salic. \'yl 
 
 3 Stark. K. 132 
 
 2T. li. 733 
 
 10 East, I'. C. c. 12, ;?. 10, I). 4(31) 
 !) C. & P. 555 
 
 I'AO K 
 
 ... 5(;o 
 
 ... 4<;(} 
 
 ... 105 
 
 ... 2(;(; 
 
 ... «i:i(t 
 
 ... 3.'. 3 
 
 ... 530 
 
 ... 420 
 
 ... 59!) 
 
 ... 112 
 
 ... 271 
 
 Goo,Giy 
 
 M' Arthur, Rex 1?. ... 
 >l'BiM« r. M'Biidc 
 M'CatlVrty, K. v. ... 
 Maoaitliy, Beg. v. ... 
 M'Cartv', lU'S}). V. ... 
 
 . Kcx r. ... 
 
 IMacdanii'l, lu'X r. ... 
 Maclean v. Cristall ... 
 ]\['i)i.niuot. Hex v. ... 
 M'Derniott, Keg. v.... 
 Macdonnell v. Evans 
 M'Dougal V. Claridge 
 M'Galioy V. Alston... 
 M'Gavaian, Eeg. r.... 
 M 'Go vein, Reg. t'. ... 
 M'Grt'gor v. Tliwaites 
 ;M'IIugh, Eeg. I'. ... 
 Mackally's ca.se 
 Mackally, R. v. 
 Mackarty, Reg. t\ ... 
 Mackay r. Ford 
 M'Keion, Rex v. 
 M'Naghten, Reg. v.... 
 M'Pheit^on v. Daniels 
 Madan v. Catanacli... 
 jMadison's (.Lady) case 
 ;Mainwaring, R. v. ... 
 Major-s case 
 Malings, Reg. v. 
 ]\rallet. Rex r. 
 Maluney, Reg. v. ... 
 
 r. Rartley 
 
 Manl.y f. Witt 
 Manwaring, Reg. v.., 
 Man/ano, Reg. i'. ... 
 ;Marsden, Rex v. 
 
 Iklarsh, Rex v. 
 
 Reg. J-. 
 
 r. L'olnet 
 
 Marshall, Reg. v. .. 
 
 . r. Lamb . . . 
 
 Mai St on v. Dowues... 
 ]\Iartin, Reg. v. 
 Rex r. 
 
 r. Ihonilon. 
 
 M. 
 
 Peake R. 155 
 4 Esp. 242 
 
 10 CoxC. C. G03... 
 MSS. C. S. G. ... 
 
 2 Dall. 86 
 
 2 Stark. Ev. 38 ... 
 1 Leach, 45 
 
 Per. Oriental Ca.s. 75 
 R. & R. 356 
 
 6 Cox C. C. 479 ... 
 
 11 C. B. 930 
 
 1 CampK 267 ... 
 
 2 M. & W. 2()6 ... 
 6CoxC. C. 64 ... 
 5 CoxC. C. 5U6 ... 
 
 3 B. & C. 24 ; 4 D. & 
 
 7 CoxC. C. 483 ... 
 9 Rep. 67 
 
 9 Co. 67 a. 
 
 2 Lord Ravni. 1179 
 5 H. & N.'792 ... 
 5T. R. 316 
 
 10 CI. & F. 200 ... 
 lOB. &C. 263 ... 
 7H. &N. 360 ... 
 
 1 Hide, 693 
 
 26 L. J. M. C. 10... 
 
 2 Leach, 772 
 
 8 0- & P. 242 
 MSS. C. S.G. ... 
 9CoxC. C. 26 ... 
 
 3 Camph. 210 
 18 C. B. 544 
 D. & B. 132 
 2F. &F. 64 
 M. &M. 439 
 4^[. &S. 1()4 
 6A. &E. 236 
 
 1 Den. C. C. 505 ... 
 2Esp. R. 665 
 C.&M. 147 
 
 5 Q. B. 115 
 lA. &E.31 
 8A. &K481 
 6C. &P. 5ii2 
 
 2 Campb. 100 
 4E<p. 181 
 
 46,85 
 
 573,576 
 
 144 
 
 361,362 
 
 494 
 
 506 
 
 110 
 
 300 
 
 399 
 
 502 
 
 ... 329,347,579,629 
 
 188 
 
 337 
 
 588 
 
 505 
 
 R. 695 184 
 
 475 
 
 394,398 
 
 397 
 
 109,121 
 
 1S3 
 
 57 
 
 571 
 
 180 
 
 614 
 
 314 
 
 300 
 
 249 
 
 430 
 
 492 
 
 583 
 
 212,573 
 
 18S 
 
 301,324,327,416,427 
 
 430 
 
 431 
 
 209 
 
 ... 555 
 
 434 
 
 424,426 
 
 525 
 
 327 
 
 540,552 
 
 406 
 
 .388 
 
 424 
 
 .541
 
 Tahle of Cases. xxxv 
 
 PAGE 
 
 Martin .Traveller.' In-) i p. & p, 505 
 
 surance Company ... j "^*^ 
 
 Martyn r. Hind Cowp. 437 389 
 
 Mason -y. Barker MSS. C. S. G 424 
 
 Massey V. Joliuson 12 East, 67 424 
 
 Matherv. Ney 3 M. & S. 265 295 
 
 Matthews, Reg. v 4 Cox C. C. 93 584 
 
 Maudsley's case ... ... 1 Lew. 51 ... ... ... ... 155 
 
 1 Lew. 110 493 
 
 Mawbey, Rex» 6 T. R. 619 ... 2, 1U9, 114, 131, 173, 319 
 
 Mawson V. Hartsink ... 4 Esji. 102 592 
 
 May's case ■... ... ... cited 1 Leach, 133 ... ... ... 42 
 
 Reg. V. 1 Cox C. C. 236 371 
 
 May v. Hawkins 24 L. J. Ex. 309 ; 11 Ex. 210 561 
 
 Mayhew, Rexv G C. & P. 315 75 
 
 Mayne V. Fletcher 9 B. & C. 382 218 
 
 Mazagora, Rex t? R. & R. 291 326 
 
 Mead, Rex v. 2 B. & C. 605 3,59 
 
 Meaney, R. v 10 Cox C. C. .506 '. 144 
 
 Mears, Reg. t; 2 Den. C. C. 79 123 
 
 Meek, Reg. w 9C.&P.513 21,43,83,415 
 
 Meekins v. Smith 1 H. Bl. 636 599 
 
 Megson, Reg. v 9 C. & P. 420 353,355 
 
 Melen t', Andrews M. & M. 336 486 
 
 Melhuish I'. Collier 15 Q. B. 878 588,594 
 
 Melling, Rex r 5 Mod. 349 96 
 
 Mellor, Rexr MSS. C. S. G '..! 602 
 
 Melville's (Lord) case ... 29 St. Tr. 763 318,408,490 
 
 Menage, Reg. V 3F. &r. 310 260 
 
 Merceron, Rex V 2 Stark. R. 366 473 
 
 Merle t'. Moore R. & M. N. P. R. 390 ' 539 
 
 Merthyr Tidvil, Rex r. ... IB. & Ad. 29 ! 348 
 
 Meyer ?;. Sefton 2 Stark. R. 274 566 
 
 Meynell's case 2 Lew. 122 4,59 
 
 Mey rick v. Woods C. & M. 452 \,\ 34 1 
 
 Miard, Reg. -o 1 Cox C. C. 22 .'.'.' 255 
 
 Middleditch, Reg. V. ... 1 Den. C. C. 92 ! 258 
 
 Middlehurst, Rex V. ... 1 Burr. 400 395 
 
 Middlesex (Justices), Rex I'. 5B. &A(1.1113 !!! 428 
 
 Middleton's case 2 Kel. 27 266 
 
 Middleton, Rex i? 1 Str. 77 220 
 
 Fort. 201 225 
 
 ■ V. Melton ... lOB. &C. 317 .".'.' 363 
 
 Midgley V. Wood 30 Law. J., D. & M. 57 296 
 
 Millard, Reg. v. ... ... Dears C. C. 166 ... 7,8 
 
 Rex V R. &R. 245 ..." 376 
 
 Millen, Reg. v 3 Cox C. C. 507 462,466 
 
 Miller's case 3 Wills. 427 2 
 
 Reg. V 4CoxC.C. 166 521 
 
 • r. Kcnrick ... ... 4 Campb. 155 ... ... ... ... 421 
 
 • r'. Salomons... ... 7 Excli. R. 475 ... ... ... 614,615 
 
 Millis, Reg. V 10C1.&F.534 299 
 
 Mills, Rex 1; 6 C. & P. 146 443 
 
 Milnes, Reg. v 2 F. & F. 1 88, 338 
 
 Milton, Reg. V 1 C. & K. 58 363 
 
 l\.v. lOCoxC. C. 364 489 
 
 M il ward r. Forbes 4 Esp. 170 506 
 
 Minton's case 2 East, P. C. 1021 3!)2 
 
 1 M 'Nail. Ev. 386 354 
 
 Mobbs, Reg. v 6 Cox C. C. 223 378 
 
 Mogg, Rex y 4C. &P. 364 377 
 
 Moir, Reg. r. 4 Cox C. C. 279 583 
 
 Monke V. Butler 1 Roll, R. 83 365 
 
 Monroe i\ Twisleton ... Peake Ev. Apji. ... ... ... ... C22 
 
 c 2
 
 X x X V i Table of Cases. 
 
 I'AOB 
 
 JI(i()(ly'.-< niHO ( 'niwl. & I). 443 
 
 Ilex V r. (j. &p. 2;j 9:5,102 
 
 Mooiu'v, Keg. 1' '.)(V\C. C. 411 5:33 
 
 r>CoxC. C. :3i« :3r,4 
 
 r. CoxC. C. 31!) 2fj 
 
 W ooie's ciise 2 Low. :57 (iOl 
 
 Ki-xr 2 ('. & I'. '2:j.'j 373 
 
 Miilth. Dig. 157 50!) 
 
 _ Reg. r ICoxC.C. 5!) C.iil 
 
 2 Ikn. G. C. 522 41:5, KM, HiS, 471 
 
 I\Iooifs, IJi-x r 7 C. & P. 270 008 
 
 ]\Iuuis, JJex « HKast, H. 41!) 344 
 
 ]\Ioreau, Reg. r 1 I g. 13. 1028 Uo 
 
 Morguii's ".iLse 1 Leucli, 54 ... (114 
 
 ilorgan, Reg. r 1 Cox C. C. 109 107 
 
 : (i Cox C. C. llf) 4.30 
 
 GCoxC. C. 107 70 
 
 V. Brydges ... 2 Stark. R. 314 .562 
 
 1). Wlutinoie ... G Exch. 716 317 
 
 Moiley's (Lord) case ... Kcl. 55 524,5:33 
 
 Iklorphew, Rex v 2^[.&S. 602 5:36 
 
 Morris, Rex V 2 Burr. 1189 87 
 
 . r. Haiiser 2 M. & Rob. 392 340 
 
 i'. iMilkr IW. Bl. 632 270,.3:30 
 
 . 4 Burr. 2057 313 
 
 Morrison r. Kellv 1 Bl. R. 385 428 
 
 Morse, Reg. V. ^ 8 C. & P. 605 508 
 
 Morton, Rex t) 4 M. & S. 48 3:34,335 
 
 R. & R. 19 29!),:365 
 
 Reg. V 2M. &Rob. 514 446 
 
 Mosey's case 1 Loach, 265 483 
 
 Mosley, Rex t? R. & ]\I. C. C. R. 97 355 
 
 Moss f. Smith 1 Man. & Gr. 228 313 
 
 Mott, Rexv. 2C. &P.521 120 
 
 MouHetr. Cole 42 L. J. Ex. 8 631 
 
 Mudie, Rexr 1 M. & Rob. 128 66,79,93,102 
 
 MuUany, R. t! :34 L. J. M. C. Ill 21 
 
 Llullen, Reg. V 9 Cox C. C. 339 520 
 
 MuUer, Reu. r 10 Cox C. C. 43 584 
 
 Mullelt r. Hunt 1 Cr. & M. 752 21 
 
 MuUi-an v. Cole 44 L. J. Q. B. 153 210 
 
 Mullins, Reg. V 3CoxC. C. 526 520,568,608,610 
 
 Munn V. Godbold 3 Bing. R. 292 346,347 
 
 Munton, Rex r 3 G. & P. 498 83,96 
 
 Murlis, Rexv M. &Malk.515 562,597 
 
 ■nr 1 -D G n c D on- i l-i2, 145, 148, 149, 156, 
 
 Murphy, Reg. r. .-.. ... 8C.&P.29/ j ' 327,559,572 
 
 Murray, Rexr 1 Ch. Burn J. 817 112 
 
 Reg. r IF. &F. 80 17 
 
 r. Queen 7 Q. B. 700 266,317 
 
 "Murrv r. Souter cited 6 Bing. 414 218 
 
 Murtagh, Reg. r 6 Cox C. C. 447 4:35,480 
 
 Muscott, Reg. I' lOMod. R. 195 11,72,96,627 
 
 Myrni V. Joiilfe 1 M. & Rob. 326 543 
 
 N. 
 
 Naylor, R. r 11 Cox G. C. 13 11 
 
 Neale, Rexr 7 C. & P. 168 60S 
 
 Neilev. Jakle ... ... 2 C. & K. 709 489 
 
 Nelson 1-. Whiltall 1 B. & A. 19 435 
 
 Kiville, Re-;, r 6 Cox C. C. 69 593 
 
 Kewall, Reg. r 6 Cox C. G. 21 91
 
 NewLouse, Eeg. v. 
 Newman, Reg. v. 
 
 • • V. Jenkins 
 
 ■ V. Stretch.. 
 
 Newton's case 
 Eeg. V. 
 
 Newton v. Chaplyn... 
 
 V. Eowe 
 
 Nicholas, Eeg. v. 
 Nicholl, Eex v. 
 Nicholls, Eex v. 
 
 V. Doweling 
 
 V. Parker... 
 
 Nichols, Eex v. 
 
 Nicolas, Eeg. v. 
 
 Niekl, Eex v. 
 
 Nightingale v. Stockdale ... 
 
 Nixon V. Mayoh 
 
 Noakes, Eex u 
 
 Noel, Eex-y. 
 
 Nolan's case 
 
 North, Eeg. v. 
 
 North Bedburn, Eex ^. 
 
 Northam w. Latouehe 
 
 Northampton's (the Mayor ) 
 of) case ... ... ... j^ 
 
 Northamjjtonshire, Eex v.... 
 
 Northfield, Eex V. ... 
 
 Norton, Eex v. 
 
 Eeg. v. 
 
 Nott, Eeg. V. 
 
 Nottingham Waterworks Com- 
 pany, Eex w. 
 
 Nneys, Eex v. 
 
 Nute, Rex v. 
 
 Nutt, Eexr. 
 
 Table of Cases. 
 
 1 Bail Court C. 129 
 
 2 Den. C. C. 390 ... 
 lE.e^B. 268 
 
 3C. &K. 252 
 IE. &B.558 
 10 Pick. 51.5 
 M. &M.338 
 13Q. B. 716 
 4 Cox C. C. 262 ... 
 IF. &F. 641 
 IC. &K. 469 
 2 M. &Roh. 503 ... 
 IOC. B. 356 
 MSS. C. S. G. ... 
 2C. &K. 246 
 
 1 B. & Ad. 21 
 MSS.C.S.G. 
 iStark. R. 81 
 14 East 331 
 
 2 Str. 1227 
 
 5C. &P. 600 ... 
 6CoxC. C. 120 ... 
 6 East E. 417 
 Selw. N. P. 1044... 
 IM. &Eol..76 ... 
 5C.&P.3-26 
 6C. &P. 336 
 
 Joy, 16 
 
 1 CoxC. C. 258 ... 
 
 Cald.452 
 
 4C. &P. 140 
 
 1 Str. 422 
 
 2M. &S. 262 ... 
 
 Dougl. 659 
 
 E. & E. 510 
 
 8C. &P. 671 
 
 C. & M. 288 ; 4 Q. B. 
 
 6A. &E. 355 ... 
 
 1 BL E. 416 
 1 Burn. J. Doy. & W. 
 1 Barnard, 307 
 Dig. L. L. 126 ... 
 ritz.47 
 
 768 
 
 1086 
 
 xxxvu 
 
 PAGE 
 
 230 
 
 89,414 
 ...228,320,489 
 572 
 
 228,229 
 
 325 
 
 350 
 
 499 
 
 583 
 
 359,519 
 
 2,84 
 
 315 
 
 333, 346, 540, 557 
 
 383 
 
 613 
 
 59 
 
 22,99 
 
 557 
 
 362 
 
 127,159 
 
 592 
 
 356 
 
 118,344 
 
 187 
 
 545 
 
 602,609 
 
 592 
 
 448 
 
 597 
 
 334 
 
 416 
 
 205 
 
 387 
 
 302 
 
 400 
 
 234 
 
 ... 31,106,107 
 
 415 
 
 100 
 
 458 
 
 318 
 
 198 
 
 223 
 
 Gates' (Titus) case ... 
 O'Brien, Eeg. v. 
 O'Coigley, Eex v. ... 
 O'Connell, Eeg. v. ... 
 
 V. Eeg. ... 
 
 O'Connor, Eeg. r. ... 
 O'Donnell, Eeg. v. ... 
 O'Neill V. Kriiger ... 
 
 V. Longman 
 
 Oddy, Eeg. v. 
 Ogilvie, Rex v. 
 Oldroyd, Eex v. 
 Omant, Reg. v. 
 Omeah'y v. Newell... 
 Omichund v. Barker 
 
 O. 
 
 4 St. Tr. 39 
 
 1 CoxC. C. 185 ... 
 26 How. St. Tr. 1353 
 
 1 Cox C. C. 403 ... 
 11 Ch&F. 155 
 
 5 Q. B. 34... 
 
 7 Cox C. C. 337 
 4 B. & S. 389 
 4 B. & S. 376 
 
 2 Den. C. C. 264 
 2 C. & P. 230 
 R. & R. 88... 
 
 6 Cox C. C. 466 
 
 8 East, 364 
 Willes, 549 
 
 218, 
 
 109, 110, 117,141,157, 
 
 .319, 
 
 526, 
 614, 
 
 408 
 611 
 576 
 553 
 158 
 269 
 (i20 
 174 
 174 
 376 
 394 
 594 
 523 
 23 
 616
 
 XXWlll 
 
 Oivlianl, licK. r 
 
 Oi-ill, 1{. r 
 
 Oiiiic, lU'X ('. 
 
 Oshorii I". Loiidtiii Duck Co. 
 
 Hex V 
 
 Overton, Hey. v 
 
 Owen, Ivej,'. r. 
 
 Hex V. 
 
 Tah/c of Cases. 
 
 Oxlbi J, Hex V. 
 Ox ley, Hcg. V. 
 
 K(!. & P. 558 n 
 
 1) ('. & I'. HO 
 
 :J Salk. -l-n ; 1 Lnnl Huyiii. IMi 
 
 10 Kxdi. H. GDH 
 
 C. cSi M . Gi'2 
 
 hC. & H. li:J 
 
 Hess. Cius. 2(J0 
 
 2 M. C. C. 203 & 4 (l Ji. .^:J 
 
 yC. &P.83 
 
 6 CoxC. C. lofj 
 
 'JC. &P. 2;i« 
 
 4 0. & P. 2:3(5 
 
 H. &M. 0. C. H. 118 ... 
 
 MS. ]M},'. L. L. 07 
 
 H. & H. 382 
 
 3 0. &K. 317 
 
 PAOE 
 
 ... r,(i3 
 
 ... 310 
 
 ... 207 
 
 r)73 
 
 521 
 
 207 
 
 \^,^>'> 
 
 473, 480, 003, (J20 
 
 17,7-' 
 
 4^1 
 
 320 
 
 3!)3 
 
 20.) 
 
 3!J2 
 
 48 
 
 Packer, Rex v. 
 Paddle, Hex V. 
 Page, Hex v. 
 Paget (Lord), Rex v. 
 Paine, Hex v. 
 
 V. Beestou 
 
 Painter, Reg. v. 
 
 V. HiU 
 
 Palmer's case 
 Palmer, Reg. v. 
 
 V. Trower . . . 
 
 Palmerstoii's (Lord) case 
 Pardee v. Price 
 Parfait, .Rex v. 
 Paris I'. Levy 
 Parker, Reg. v. 
 
 r. Green 
 
 V. ^I'Wiiliain 
 
 Parkes 1'. Prescott ... 
 Parkbou.se, Rex r. ... 
 Parkliurst r. Lowteii 
 Parkin r. ^looii 
 Parkins, Rex v. 
 
 ■ V. Oobbett ... 
 
 v. Hawkshaw 
 
 Parkinson, Reg. v. ... 
 Parmiter r. Coupland 
 Parratt, Rex i\ 
 Parrv, Hex r. 
 
 ^r. May 
 
 Parsons, Rex v. 
 
 R. r. 
 
 V. Brown . . . 
 
 Partridge v. Coates... 
 
 Hex V. 
 
 Patteson v. Jonos ... 
 
 MSS. C. S. G. ... 
 R. &H. 484 
 
 6 Esp. 83 
 
 1 Leon. 5 
 
 1 Salk. 281 
 
 Holt on Libel, 88, 89 
 
 5 Mod. 105, 107 ... 
 
 1 M. & Rob. 20 ... 
 
 2 0. & K. 319 ... 
 
 2 0. &K. 724 ... 
 
 1 Deac. Dig. Or. L. 147 
 
 5 Cox CO. 236 ... 
 
 8 Excb. E. 247 ... 
 cited 4 T. R. 290... 
 13 M. & W. 207 ... 
 
 1 East, P. 0. 410... 
 
 9 0. B. (N.S.) 342 
 
 3 Q. B. 292 
 0. &M. 039 
 lOoxO. 0. 70 ... 
 L. & 0. 42 
 
 j 39 L. J. M. C. 01 
 ^ L. H. 1 0. 0. R. 225 
 
 2 B. & S. 299 
 
 6 Bing. H. 083 ... 
 38 L.J. Ex. 105 ... 
 
 1 East, P. 0. 462... 
 
 2 Swanst. 194 
 
 7 0. & P. 408 
 
 E. & M. N. P. R. 100 . 
 
 1 0. & P. 282 ... 
 
 2 Stark. R. 239 ... 
 
 2 Den. 0. 0. 459... 
 
 6 M. & W. 105 ... 
 
 4 0. & P. 570 ... 
 
 7 0. & P. 830 ... 
 1 :\r. & Rob. 279... 
 1 Bl. R. 392 
 
 35 L. J. M. 0. 107 
 
 3 0. &K. 2;»5 ... 
 
 R. & M. N. P. R. 156 . 
 
 7 0. & P. 551 
 
 8 B. & 0. 578, 3 M. & H. 
 
 101 
 
 ... 505 
 233, 251 
 ... 330 
 ... 318 
 500, 514 
 ... 198 
 .211,213,221 
 ... 589 
 ... 531 
 ... 029 
 ... 297 
 507, 584 
 ... 5s7 
 ... 354 
 ... 334 
 ... 250 
 188,225 
 131,134 
 ...8 J, 93 
 ... 570 
 444, 408 
 
 00,521 
 
 ... 370 
 571 
 
 214,215 
 
 118 
 
 539 
 
 560 
 
 572 
 
 335 
 
 541, 550 
 
 319 
 
 225 
 
 450,464 
 .406,414,428 
 
 340 
 
 148 
 
 411 
 
 531 
 
 339 
 
 444 
 
 IbS
 
 Tahle of Cases. 
 
 Payne, R. r 
 
 Peace, Eex v. 
 
 Peacock, R. y. 
 
 ■ V. Sir George lleyiiell 
 
 Pearce, Reg. v. 
 
 Eex V. 
 
 Pearson, Reg. v. 
 
 ■ Rex V. 
 
 V. Lemaitre 
 
 Peat's case ... 
 Peck, Reg. v. 
 Pedley's case 
 Peel, Reg. v.... 
 Pegler, Rex i'. 
 Pell V. Daubeny 
 Peltier, Rex v. 
 Pembridge (Inliab.), Reg. 
 Penny, Rex v. 
 Penruddock v. Hammond . 
 Penson, Rex v. 
 People V. Whipple ... 
 Pepys, Rex i>. 
 Percival v. Nanson ... 
 Perigal v. Nicholson 
 Perkins' case 
 
 Perkins, Reg. v 
 
 ■ Rex ». 
 
 Perrott, Rex v. 
 Perry, Rex v. 
 
 r. Gilison 
 
 V. Smith 
 
 Petcheriid, Reg. 
 Petrie's case... 
 Pettit, Reg. v. 
 Phelps V. Prew 
 Philips, Reg. v. 
 
 Rex I'. 
 
 Phillips, Rex v. 
 
 V. Earner . . . 
 
 V. Hunter 
 
 V. Wimburn 
 
 Phillpotts, Reg. r. ... 
 
 Philp, Rex V. 
 Pickard v. Sears 
 Pickering v. Noyes... 
 Pickford, Rex v. 
 Piddlehinton, Rex r. 
 Pietro V. Stiginuni ... 
 
 Pike, Rex v 
 
 V. Badmering ... 
 
 Pikesley, Reg. ;•. ... 
 Pippet V. Hearn 
 Pitclier, Rex v. 
 Pitton r. Walter ... 
 Plestow, Rex v. 
 Plumcr, Rex v. 
 
 ■ V. Brisco ... 
 
 Plunkett V. Coljbett 
 
 41 L. J. M. a G5 
 3 B. & A. 579 . 
 12 Cox C. C. 21 . 
 
 2 Brownl. 151, 152 
 
 3 B. & S. 531 . 
 9 C. & P. 6G7 
 Peake R. 76 
 MSS. C. S. G. . 
 
 8 C. & P. 119 . 
 7 a & P. 671 
 5 M. & G. 700 . 
 2 Lewin 28S 
 
 9 A. & E. 686 . 
 
 1 Leach, 325 
 
 2 F. & F. 21 
 5 C. & P. 521 
 5 Exch. R. 955 . 
 Holt on Libel, 78. 
 C. & M. 157 
 
 I Ld. Raym. 153 .. 
 
 II Beav. 59 
 5C. &P. 412 .. 
 9 Cowen, 707 
 Peake R. 138 
 
 7 Ex. 1 
 
 Wightw. 64 
 
 1 Lew. 99 
 
 2 Moo. C. C. R. 13 
 
 4 C. & P. 363 
 2M. &S. 385 .. 
 cited R. & M. N. P. C. 
 
 2 Ridgway's speeches, 
 1 A. & E. 48 
 
 9 M. & W. 681 
 7 Cox C. C. 79 
 4 T. R. 756 
 4 Cox C. C. 161 
 
 3 E. & B. 430 
 
 1 F. & F. 105 
 
 2 Str. 921... 
 R. & R. 369 
 
 3 Campb. 74 
 MSS. C. S. G. 
 
 1 Esp. 356... 
 
 2 H. Blac. 412 
 
 4 C. & P. 273 
 2 Den. C. C. 302 [ 
 
 5 Cox C. C. 329 J 
 R. & M. C. C. R. 263 
 6A. &E. 469 ... 
 
 1 B. & C. 263 ... 
 4C. &P. 227 
 
 3B. &Ad. 460 ... 
 
 10 Cox Crini. Cas. 
 3C. &r. 598 ... 
 
 2 Str. 1096 
 9C. & P. 124 
 
 5 B. & Aid. 634 ... 
 1 C. & P. 85 
 
 1 Str. 162 
 
 1 Campl-. 494 
 R. & R. 261 
 IIQ. B, 4() 
 5 E.sp. 137 
 
 354 
 371 
 
 XXXIX 
 
 PAGE 
 619 
 
 41,399 
 
 518 
 
 188 
 
 7 
 
 625 
 
 ...218,339,340 
 
 581 
 
 50 
 
 508 
 
 ...222,378,383 
 
 316 
 
 ...110,132, 136 
 2 
 
 354,583 
 
 573 
 
 599 
 
 ...178,209,220 
 
 414 
 
 204 
 
 544 
 
 297 
 
 601 
 
 11 
 
 364 
 
 627 
 
 262 
 
 ...357,361,612 
 
 403 
 
 65 
 
 624 
 
 201 
 
 562,597 
 542 
 
 351,490 
 
 539 
 
 503 
 
 544,545 
 
 522 
 
 36 
 
 331,392 
 
 397 
 
 505 
 
 562 
 
 305 
 
 505 
 
 15,18,342,567 
 
 441 
 
 323 
 
 560,597 
 
 236, 242, 243, 245 
 
 336 
 
 563 
 
 361 
 
 594 
 
 473,530 
 53,111 
 
 577 
 
 415 
 
 399 
 
 220, 262, 347, :J«6 
 
 127 
 
 55G
 
 d Tdhlc of Otsrs. 
 
 PACE 
 
 r<.c(»k, INx r 2Str. lir.7 -'" > 
 
 I'uUm.in, I{(X r 2 Cainpl.. 2:53 1 Kl, 1 1!», l.-..-> 
 
 JV.iiKiuv, Kl- r 1 Cx ('. (J. 2:m r.lo 
 
 -J). Biul.l.lv ... 1{. .'^ M. X. I'. i:!o r,7i 
 
 Pt.ok, H.-K. «. ' -^l^!^ '•'■''■^ 
 
 Poole r. Dicivs 1 P,. X. C. Gl!) :5<;i 
 
 r. Poole 2Tyrw. 11.70 272 
 
 Pouliam i\ I'ickl.uiu ... 7 11. & X. Wil 1^') 
 
 P.TtLT r. Coopur GO. &P. 3.-)4 413 
 
 Putoz f. (Jluss.ii) 2 Excli. R. l!n 317 
 
 Potter, Hex f 7 C. & P. G^O r,20 
 
 Pnu-ett I'. Tnmkins ... 3 M. & S. 2G3 2!i5 
 
 P(mllerer.s' case 9 Pep. r»5 \2'.i, '>')(') 
 
 Pouiitiu-v, Rex r 7 C. & P. 3(t2 4G4, 4G5 
 
 Povey, Reg. r Dears. C. C. 32 3m.-, 
 
 eCoxC. C. 83 423 
 
 Poweir.s case 1 Leach, 110 G12 
 
 Powell, Rex i- R. & M. N. P. R. lol 4i),3;)7 
 
 . 2B. &A<1. 7.-) KiO 
 
 r. Ford 2 Stark. R. 164 430 
 
 r. Milbank 2 W. Bl. 851 3G5 
 
 Pratt, Ret,', w 4 F. & F. 315 60S, Guy 
 
 Presslv, Rex r 6 C. & P. 183 506 
 
 Preston (Inhab.), Rex V. ... R. T. H. 249 318 
 
 Price, alias Wriyht, Rex v.. . G East R. 323 322 
 
 Res?, t' 7CoxC. C. 405 583 
 
 . V. torrington (Lord). . . 1 Salk. 285 363, 364 
 
 Priestley's case 1 Lew. 74 504 
 
 Priestley V. Hughes ... 11 East 1 299 
 
 Prince ?'. Blackburn ... 2 East R. 250 433 
 
 1>. Samo 7 A. & E. 627 493,591 
 
 Pritchard r. Symonds ... Bull. X. P. 254 339,340 
 
 Probert, Reg. V Dears. C. C. 32 156 
 
 Proviso. Reed ... ... 5 Bing. R. 435 593 
 
 Punshon, Rex V 3 Cam pb. 96 86 
 
 PurccU V. Macnamara ... 9 East 156 37 
 
 Piuchase, Reg. t' C. & M. 617 64 
 
 Pye'scase .^ 2 East P. C. 785 392 
 
 Q. 
 
 Qualter, Reg. r 6 Cox C. C. 357 356 
 
 rv » oTJ J p -D om J 1-^,387,490,493, 577,580, 
 
 Quilter V. Gorss 14 C. B. (N.S.) 747 338 
 
 R. 
 
 Radbounie's case 1 Leach, 457 500,514,526 
 
 Radford, Rex r cited R. & M. C. C. R. 186 456 
 
 Rami .ert r. Cohen 4 Esp. 213 329,566 
 
 Earasbottom, Rex V. ... 1 Leach, 25 418,424 
 
 Ramsden, Rexr 2 C. & P. 604 569 
 
 Raphael, Rex »• Mann. Ind. 232 86 
 
 Rastall r. Straton 1 H. Bl. 49 37 
 
 East rick, Reg. f 2 Cox C. C. .39 334 
 
 Eawden, Rexr 2 A. & E. 156 335 
 
 SB. &C. 708 348 
 
 Rawlins, Reg. r 8 C. & P. 439 50 
 
 Rawson r. Haigh 2 Bing. R. 99 350 
 
 Ravner, Rex r 2 Barnard 21(3 2.>0 
 
 RcK, R. r L. R. 1 C. C. R., 41 L. J. M. C. 92 ... 2j8
 
 Eead, Eeg. v. 
 
 Rex V. 
 
 Reading, Rex v. 
 
 Reaney, Reg. v. 
 Reardon, Reg. v. 
 Reason, Rex v, 
 
 ■ R.V 
 
 Recue, R. v 
 
 Redford v. Burley ... 
 Redman, B.. v. 
 Reed, Rex v. 
 
 V. James 
 
 V. Norman ... 
 
 Rees, Eex v.... 
 
 Reeve v. Wood 
 Eeeves, Eex v. 
 
 Eeid, Eeg. v 
 
 — — V. Langlois 
 
 V. Margison 
 
 Eeilly's case 
 
 Eemnant, Eex v. 
 Eespublica v. M'Carty 
 Eevel, Eex v. 
 Eevis V. Smith 
 Ehind v. Wilkinson 
 
 Ehode's case 
 
 Eliodes, Eeg. v. 
 
 Eice, Eeg. u 
 
 Eich V. Basterfield ... 
 Eichards, Eex v. 
 
 E. 1'. 
 
 V. Jackson 
 
 Eichardson, Eeg. v.... 
 
 Eex r. ... 
 
 V. AUaii 
 V. Wilks 
 V. Willis 
 
 Eickman's case 
 Eider, Reg. v. 
 Eidgway, Rex v. 
 Eidley v. Gyde 
 
 Rigby, Eeg. V. 
 
 Rigge, E. V 
 
 Riley, Eeg. v. 
 
 R. ij 
 
 Ring, Eex v 
 
 Eispal, Eex iJ. 
 Rivers, Rex v. 
 Roberts' case 
 Roberts, Reg. v. 
 
 r. All alt .. 
 
 V. Bethell . . 
 
 V. Brown .. 
 
 V. Camden 
 
 V. Doxon .. 
 
 V. Roberts.. 
 
 Robertson, Reg. v. . . 
 
 Table of Cases. 
 
 6 Cox C. C. 134 ... 
 
 11 Mod. 142 
 V C. & P. 649 
 
 7 How. St. Tr.' 259 
 D. & B. 151 
 
 4F. &F. 76 
 
 1 Str. 499 
 
 12 CoxC. C. 228... 
 41 L. J. M. C. 92... 
 3 Stark. R. 87 ... 
 10 Cox C. C. 159... 
 M. &M. 403 
 
 1 Stark. R. 132 ... 
 8C. &P. 65 
 
 6 C. & P. 606 
 
 7 C. & P. 568 
 
 10 CoxC. C. 58 ... 
 36 Geo. 3 
 
 2 Den. C. C. 88 ... 
 1 Mac. & Gord. 627 
 1 Campb. 469 
 
 1 Leach, 454 
 E. &E. 136 
 
 2 Dall. 86 
 
 1 Str. 420 
 
 18C. B. 126 
 
 2 Taunt. 237 
 
 1 Leach, 24 
 
 2 Lord Eaym. 886 
 2 Cox C. C. 118 ... 
 4C. B. 483 
 
 5 C. & P. 318 
 
 I M. &Rob. 396... 
 
 II CoxC. C. 43 ... 
 18 \^es. 474 
 
 2F. &F. 343 ... 
 
 3F. &F. 693 
 
 1 CoxC. C. 361 ... 
 
 1 M. &. Eob. 402... 
 
 2 Stark. E. 334 ... 
 42 L. J. Ex. 15 ... 
 8 L. E. Ex. 69 ... 
 
 2 East P. C. 1035 
 8C. &P. 539 ... 
 5 B. & A. 527 ... 
 9Bing. E. 349 ... 
 1 M. & Eob. 197 ... 
 8C. &P. 770 
 
 4F. & F. 1085 ... 
 3C. & K. 116 ... 
 4F. &F. 964 
 8T. E. 585 
 
 3 Burr. 1320 
 
 7 C. & P. 177 ... 
 1 Devereux, 259 ... 
 2C. &K. G07 ... 
 1 Campb. 399,400 
 M. &M. 192 
 12 C. B. 778 
 10 Bing. 519 
 
 9 East, 93 
 
 Peake E. 83 
 2B. &A. 367 . 
 loCoxC. C. 9 .. 
 
 xli 
 
 PAGE 
 125 
 
 i;»7 
 
 504 
 
 574 
 
 357 
 
 382 
 
 360,506 
 
 457 
 
 444 
 
 384,385 
 
 235 
 
 506,532 
 
 562 
 
 316 
 
 327 
 
 503,504 
 
 626 
 
 200 
 
 395 
 
 544 
 
 415 
 
 99 
 
 572 
 
 494 
 
 204 
 
 181 
 
 346 
 
 347,424 
 11,36,39,82,99 
 
 318 
 
 ... 633 
 456,463 
 
 504 
 
 235 
 
 539 
 
 382 
 
 554 
 
 353 
 
 133 
 
 594 
 
 415 
 
 228 
 
 369 
 
 430 
 
 118 
 
 350 
 
 583 
 
 71 
 
 533 
 
 522 
 
 581 
 
 596,599 
 ...109,111, 142 
 
 474 
 
 460 
 
 80 
 
 ...120,151,384 
 ... 575 
 
 322 
 
 183 
 
 67 
 
 566 
 
 114 
 
 235
 
 xlii Tal'/c (ij ('((■■^('s. 
 
 Holtiiison's cas(» 
 J{ul)iiis(in, lie;;. /'. 
 
 Hex V. 
 
 V. .Icriuyn 
 
 ■ V. Miiy ... 
 
 p, Swt'tt ... 
 
 V. Yilllglllull 
 
 Kobson I'. Kemp 
 Kuche, Ee<,', v. 
 Roiklam, Kex v. 
 
 Rodeii, R. V 
 
 . V. Ryde 
 
 RodwoU r. l\t(lge ... 
 Roe V. Ilaivcy 
 Roebuck, He^'. v. 
 Roy an, Rejf. v. 
 Royers, Rex i\ 
 
 r. Sir G. Clifton 
 
 Roouey, Rex v. 
 Roper, Rex v. 
 RorJie, Reg. v. 
 Rose V. Blakemore . . . 
 
 V. Savory 
 
 Rosenstein, Rex r. . . . 
 Rosier, Rex v. 
 
 'Row, Rex r 
 
 RoAvland, Reg. v. 
 
 Rex V. 
 
 V. Ashby... 
 
 Rowlands, Reg. v. ... 
 
 Rowley, Rex i\ 
 
 Rowton, Reg. v. 
 Royson's case 
 Royston's case 
 Rudd's case ... 
 Rudd, Rex r. 
 Rush r. Smith 
 Russi'U's (Wm. Lord) 
 Russell, Rig. v. 
 
 , Rex V. 
 
 r. Jackson 
 
 — V. Smyth 
 
 Ruston's case 
 
 V. Reg. 
 
 V. Leader 
 
 Ryberg v. Ryberg 
 Rycrolt, Reg. v. 
 
 2 Leacli, 71') 
 
 
 ...239, 
 
 I'AOE 
 
 2 M), 37H 
 
 4 1''. & h\ -J 3 
 
 
 
 ... 609 
 
 r, ( :()x ('.(;. 1 S3 . 
 
 
 
 ... 312 
 
 II..It, N. I'. ;■)!).-) . 
 
 
 
 ... 399 
 
 1 Leach, 37 
 
 
 
 ... J 13 
 
 2M. &. i{ob. 11 . 
 
 
 
 ... 247 
 
 3(i L. .1. ^L ('. 7:). 
 
 
 
 ... 479 
 
 1 Price 1!. 11 
 
 
 
 ... 2116 
 
 2SmitIi,3... 
 
 
 
 ... 5.53 
 
 3 (Jreeul. 31(i 
 
 
 
 ... 350 
 
 8 C. & P. 2:. 2 
 
 
 9 1, 330, 
 
 360, 485 
 
 f) Esp. .02 ... 
 
 
 ...543, 
 
 .541,5.50 
 
 C. & M. 311 
 
 
 
 ... 492 
 
 Cowp. (J72... 
 
 
 
 ... 598 
 
 12 Cox U. C. G3(). 
 
 
 
 ... 380 
 
 4 Q. V>. 02(5 
 
 
 
 ... 435 
 
 1 C. & P. 220 
 
 
 
 ... 326 
 
 4 Burr. 24.S4 
 
 
 
 ... 343 
 
 D. & R. 24 
 
 
 
 ... 377 
 
 1 Cox C. C. 291 , 
 
 
 
 ... 390 
 
 2 Campb. (354 
 
 , .. 
 
 
 332, 366 
 
 3 Bos. & Pul. 587 
 
 
 
 ... 188 
 
 7 C. & R 517 
 
 
 
 369, 372 
 
 1 Stark R. 518 
 
 
 
 ... 40 
 
 6 Cox C. C. 1!)(J , 
 
 
 
 ... 589 
 
 R. & M. N. P. R. 
 
 382 '..'. 
 
 
 ... 577 
 
 2 B. N. C. 145 
 
 
 
 ... 494 
 
 2 C. & P. 414 
 
 
 
 ... 212 
 
 1 Phill. Ev. 411 
 
 
 
 ... 460 
 
 R. & R. 153 
 
 
 
 ... 470 
 
 1 F. & F. 72 
 
 . . . ... 
 
 .*.'.' 90, 
 
 ,331,419 
 
 R. & i\I. N. P. R. 
 
 401 ... 
 
 ...156, 
 
 , 6ti2,(j20 
 
 R. & M. N. P. R. 
 
 231 ... 
 
 
 oOS, 532 
 
 17 Q. B. G71 
 
 ...109,112, 
 
 124, 147 
 
 ,154, 170 
 
 5 Cox C. C. 415 
 
 
 
 ... 349 
 
 R. & M. C. C. R. 
 
 111 ... 
 
 
 ...83,85 
 
 R. & M. N. P. R. 
 
 299 ... 
 
 
 ...83,^5 
 
 10 Cox C. C. 25 
 
 
 
 ... 3^9 
 
 Cro. Car. 146 
 
 
 
 21 
 
 1 Lew. 2G7 
 
 . . • * . > 
 
 
 ... 342 
 
 1 Leach, 115 
 
 
 
 ... 621 
 
 Cowp. 334 
 
 
 
 ... 600 
 
 4 Tyrw. C75 
 
 
 
 ... 562 
 
 9 St. Tr. 578 
 
 
 
 ... 150 
 
 3 E. & B. 942 
 
 
 
 . . . 320 
 
 6 Cox C. C. 60 
 
 
 
 ... 538 
 
 C. & M. 247 
 
 
 
 ... 556 
 
 R. & M. C. C. R. 
 
 356 ... 
 
 
 51.3,600 
 
 9 Hare, 387 
 
 
 
 ... 549 
 
 9 M. & W. 810 
 
 
 
 ... 436 
 
 1 Leach, 40S 
 
 
 
 ... 611 
 
 11 Q. B. 781 
 
 
 42, 5- 
 
 7, 70, 100 
 
 35 L. J. Ex. 185 
 
 
 
 ... 185 
 
 32 L. J. P. M. & 
 
 A. 112"! 
 
 
 589, 593 
 
 6 Cox C. C. 76 
 
 
 
 ... 156 
 
 Sacheverall, Rexc 15 Sta. Tr. 4(J6 219 
 
 Sadler, lUx r 4 C. & P. 218 597 
 
 Satrn.n Hill, Pxog. r. ... 1 E. & B. 93 336 
 
 Sainthill c. I3ound 4 Esj), 74 561
 
 Table of Cases. 
 
 xliii 
 
 Salisl3ury, Rex 
 
 Salmon's case 
 Salt, lleg. V. 
 Salte V. Thomas 
 Sanders, R. v. 
 Sandys, Reg. v. 
 Sansome, Reg. v. 
 Saunders, Reg. v. 
 
 , Rex V. 
 
 r. MiUs 
 
 Savage, R. v. 
 Savile v. Roberts 
 Say and Seale's (Lord) 
 Saver v. Glossop 
 
 V. Kitclieu 
 
 Scaife, Reg. v. 
 
 , Rex V. 
 
 Sclilesinger, Reg. v. 
 Scholes V. Hilton 
 Scole, Rex v. 
 Scott's case ... 
 Scott, Reg. V. 
 
 , Rex V. 
 
 V. Jones 
 
 Scotton, Reg. v. 
 Searle, Rex v. 
 Sedley's (Sir Ch.) case 
 Selt'e V. Isaacson 
 Sellers, Rex v. 
 Sells V. Hoare 
 Selsby, Reg. v. 
 Serjeant, Rex v. 
 Serjeaunt v. Tilbury 
 Serva, Reg. v. 
 Seward, Rex v. 
 Sewell V. Evans 
 
 Sexton, Rex v. 
 
 Shaftesbury's case . . 
 
 Shakespeare, Rex v. 
 Shaw's case ... 
 Sliaw, Rex v. 
 
 , R. V. ... 
 
 Shebbeare's (Dr.) case 
 Sheen, Rex v. 
 Shellard, Reg. v. .. 
 Shellswell, Rex v. .. 
 Shepiierd, Reg. v. .. 
 
 , RfX V. 
 
 ,l\.v. 
 
 Sheppard, Rex V. .. 
 Sherman, Rex v. 
 Slierrington's case .. 
 Shillcock, Rex i'. 
 Shipley v. T(jdhunle 
 Sliippey, R. r. 
 Sliore I'. Bedford 
 Slirinipt(jn, Reg. c. .. 
 Sichel V. Lambert .. 
 Sideways v. Dyson .. 
 Sills, Reg. V. 
 
 
 
 PAGE 
 
 5 0. & P. 155 
 
 375 
 
 1 Lord Raym. 341 
 
 is:j 
 
 B. R. Hill. 1777 
 
 215 
 
 MSS. C. S. G 
 
 602 
 
 3B. & P. 188 
 
 424,427 
 
 1 L. R. C. 0. R. 75 
 
 10 
 
 C. & M. 345 
 
 481 
 
 iDen. C. C. 545 
 
 504, 505 
 
 MSS. C. S. G 
 
 602 
 
 MSS. C. S. G 
 
 416 
 
 6Bing. 213 
 
 183 
 
 13 Cox CO. 178 
 
 315,421 
 
 1 Lord Raym. 378 
 
 109 
 
 10 Mod. 41 
 
 539,550 
 
 2 E.^cch. R. 409 
 
 ..300,338,424 
 
 1 Esp. R. 210 
 
 345 
 
 17 Q. B. 238 
 
 319,524 
 
 1 M. &Rob. 551 
 
 361 
 
 lOQ. B. 670 
 
 .. 2,45,63,89 
 
 10 M. &W. 15 
 
 596 
 
 Peake, R. 112 
 
 37 
 
 2 Lew. 36 
 
 602 
 
 D. & B. 47 
 
 442,479 
 
 3 Burr. R. 1262 
 
 128 
 
 4Taunt. 8G5 
 
 343 
 
 5Q. B. 493 
 
 10,13 
 
 IM. &Rob. 75 
 
 571 
 
 2Str. 790 
 
 197 
 
 1 F. &F. 194 
 
 572 
 
 Car. Sujip. 233 
 
 359 
 
 3 B. & B. 232 
 
 615 
 
 5 CoxC. C. 495 
 
 168 
 
 R. & M. N. P. R. 352 122, 14 
 
 3, 624, 625, 626 
 
 lOEast, R. 416 
 
 396 
 
 2C. &K. 53 
 
 615 
 
 lA. &E. 713 
 
 110, 118, 129 
 
 4Q. B. 626 
 
 435 
 
 1 Burn J. D. & W. 1086... 
 
 445, 458, 464, 
 
 
 492, 503 
 
 3 Harg. St. Tr. 417 
 
 556 
 
 8 How. St. Tr. 817 
 
 574 
 
 10 East, 83 
 
 402 
 
 1 Leach, 79 
 
 396 
 
 R. & R. 526 
 
 417 
 
 6C. &P. 372 
 
 ...447,540,571 
 
 34 L. J. M. C. 169 
 
 7,72,74 
 
 Holt on Libel, 88, 89 ... 
 
 198 
 
 2C. &P. 634 
 
 400 
 
 9C. &P. 277 
 
 
 ..145,583,584 
 
 MSS. C. S. G. .. 
 
 
 474 
 
 1 CoxC. C. 237 .. 
 
 
 437 
 
 7C. &P. 579 
 
 
 443 
 
 11 CoxC. C. 325.. 
 
 
 163,168 
 
 R. & R. 169 
 
 
 325 
 
 C. T. H.303 
 
 
 602,611 
 
 2 Lew. 123 
 
 
 459 
 
 MSS. C. S. G. .. 
 
 
 5(>(; 
 
 7C. &P. 080 .. 
 
 
 213 
 
 12 CoxC. C. 1(51.. 
 
 
 524,526 
 
 5M, &Gr. 271 .. 
 
 
 541 
 
 2 Den. C. C. 319.. 
 
 
 :w.) 
 
 15 C. B. (N. S.) 78 
 
 1 
 
 3t)l 
 
 2Slark. R. 49 .. 
 
 
 345,561 
 
 IC. &K. 494 .. 
 
 
 021
 
 xliv TaJde ofCdsc^. 
 
 Sinmionds, Tlx'X v. ... 
 Siiunioiis, l{t};. ''• ••■ 
 -, Hex I'. 
 
 Eex c. 
 
 IJ. r. 
 
 PAGB 
 
 IC. &P. H4 r>(J2 
 
 ]5(1U;. C. ICM U 
 
 H C. it 1'. r.o 72 
 
 1 V,. &. K. KM :J15 
 
 g!^-"-- ::: ::: ;;5J,f;,'p.'S'7.,::: ::: ;:;""- ^:"';;;; 
 
 Simi)snn'.s case ^ k^',^^'-J*?. '^■"'''' 
 
 ^i. , ,^.,11 Ko" t' loMod. U. 248 !iG,4(»5 
 
 ^""''•^" "'p„r. ... K.&M.C.U. R.410 '470 
 
 'f. nismnre ... 9 M. & W. 47 430 
 
 r. Kol.insuu ... 12g. B. .'-.11 480 
 
 . r. Smith 2 I'liill. Kv. ;W7 .002 
 
 . r' Tlicii't'"! ... 2 M. & Hob. 4:53 340 
 
 Sincliirv Ba""aUy ... 4 M. & W. :5i;3 317 
 
 Z ^rSteveiisun ... 1 C. & P. 582 329,339,340,509 
 
 Sissons r. Dixon 5 B. & C. 758 320 
 
 Sitts V.Brown 9 C. & P. COl y.33 
 
 Skemkiller r. Newton ... 9 C. & P. 313 509 
 
 Skinner t'. Kitch 10 Cox C. C. 493 170 
 
 Slack n Bnchanan Peake R. 541 
 
 SLadcUn r. Serjeant ... 1 F. & F. 322 .582 
 
 SlanevRexr 5 C. & P. 213 221,437,573 
 
 Slattexiev-'Pooley ^J^^^^-^f ^i? 
 
 Slaughter, Bex V 4 C. & P. o43 4/1 
 
 Sleeman, Reg. Dears. C. C. 249 443,404,471 
 
 Slo«'"ett, Reg. t' Dear.s. C. C. 050 4/9 
 
 Sloman v. Heme 2 Esp. 095 539 
 
 Small V. Nairne 13 Q. B. 840 o38 
 
 Smith'scase 1 Lew. 81 3.j4 
 
 . ... 2 Lew. 139 ;><^-i 
 
 1 Leach, 479 003 
 
 jiec"v IF. &F. 30 209 
 
 ; Zl_ MSS. C. S. G GOI 
 
 1 F. & F. 98 10, 41, 03, 84 
 
 . . ... 2C. &K. 207 494,530 
 
 . ... iDen. C. C. 510 230 
 
 iCoxC. C. 248 401 
 
 R. & M. C. C. R. 289 021 
 
 R. & M. N. P. C. 295 321 
 
 MSS. C. S. G 401 
 
 2C. &P. 033 375 
 
 2Stark. R. 211 354,513 
 
 3 Burr. 1475 307 
 
 R. & M. C. jC. R. 402 402 
 
 8B. &C. 341 413,419 
 
 1 Leach, 288 417 
 
 iStark. R. 242 473,474,470 
 
 R. &R. 339 514,510,520 
 
 1 Phill. Ev. 171 545 
 
 2N. P. C. 211 524 
 
 lOCoxC. C. 82 358 
 
 . ... L. &C. 007 301 
 
 ... 4F. &F. 1099 289 
 
 ... llCoxC. C. 10 9 
 
 ■.;■. ... 37L. J. M. C. 91 
 
 r. Beadnell 1 Campb. 30 473 
 
 v Blakev L. R. 2 Q. B. .320 303,304 
 
 r' BlandV . ... R. & M. N. P. R. 257 494 
 
 r Brown 2 Cox C. C. 278 345 
 
 r. Cramer 1 B. N. C. 585 350 
 
 r. Henderson ... 9 M. & W. 788 430 
 
 r. Morgan 2 M. & Rob. 257 ji<i~ 
 
 Prager 
 
 7T. R. GO 618 
 
 i'. Salisbury ... 5 C. & P. 196 4:i
 
 Tahh of Cases. 
 
 Smith V. Sandemau 
 
 V. Scott 
 
 ■ V. Taylor . . . 
 
 • V. Wood 
 
 1). Young 
 
 Sniitlie & Hill's case 
 Smithies, Rex v. 
 Smollett (Dr.), Ilex v. 
 Smyth, Rex v. 
 Smythies, Reg. v. ... 
 Snelgrove v. Stevens 
 Solita V. Yarrow 
 Solomon, Rex v. 
 
 V. Lawson 
 
 Somerville v. Hawkins 
 Souter, Rex v. 
 Southerton, Rex v. ... 
 Southwood, Reg. v. 
 Spalding, Reg. v. ... 
 Spark V. Middleton 
 Sparkes, Rex v. 
 Sparks, Reg. v. 
 Spenceley v. Schelenhurgh 
 Spencely v. De Willot 
 Spencer, Reg. v. 
 
 , Rex V. 
 
 ■ V. Amerton 
 
 Spieres ?;. Parker ., 
 Spill V. Maule 
 
 Spilsbnry, Rex v. ... 
 
 Spragg, Rex y. 
 
 Spragge's case 
 Spring V. Eve 
 Spiirr u Trimble ... 
 St. Asaph's (Dean of) c 
 St. Giles, Reg. v. 
 St. Ciles-in-the-Fields 
 St. John's, Reg. v. ... 
 . St. IMartin's, Leicester, 
 St. j\Iarylel)one, Rex v. 
 St. Pancras, Rex v.... 
 Stacey, Rex v. 
 Stalt'ord's (Lord) case 
 Stand en v. Standen 
 Standley, Rex v. ... 
 Staiiger, R. v. 
 Stannaid, Rex v. 
 Stanstield, Rex v. ... 
 Stapylton, Reg. v. ... 
 
 V. Clongh 
 
 Starling, Rex v. 
 Steblnng v. Spicer . . . 
 Steel, Reg. v. 
 
 R. y 
 
 Steele, R. v 
 
 V. Braman ... 
 
 Steinkeller v. Newton 
 Sle])lien i\ Gwenap 
 Stephenson, Reg. v. 
 Sti'ploe, Rex v. 
 SlerlinLT, Rex v. 
 
 Re 
 
 2GoxC.C. 239 
 
 2 G. & K. 580 
 
 1 N. R. 210 
 
 3 Ganipb. 323 
 
 1 Gampli. 439 
 
 RolleAb. 77 
 
 5G. &P. 332 
 
 Holt on Libel, 224 
 
 5 C. & P. 2<)1 
 
 1 Den. G. G. R. 498 ; 2 C. 
 G. & M. 508 
 
 1 M. & Rob. 133 
 
 R. & M. N. P. R. 252 ... 
 
 8 Q. B. 832 
 
 10 G. B. 583 
 
 2 Stark R. 423 
 
 6 East R. 133 
 
 1 F. & F. 356 
 
 C. &M. 568 
 
 1 Kebh 505 
 
 cited Peake N. P. 78 ... 
 IF. &F. 388 
 
 7 East R. 357 
 
 7 East R. 108 
 
 7 G. & P. 776 
 
 IG. &P. 260 
 
 R. eSt M. N. P. R. 97 ... 
 ] M. &Rob. 470 
 
 1 T. R. 140 
 
 38 L. J. Ex 138 
 
 j 7 G. & P. 187 
 
 I 
 
 2 Burr. 993 
 
 2 Burr. R. 29 
 
 cited 14 East R. 276 
 
 2 Mod. 240 
 
 1 A. K. Marsh, 278 
 Ridgway Gol. pp. 234, 204 
 
 1 E. & B. 642 
 
 IIQ. B. 173 
 
 9G. &P. 40 
 
 2A. &E. 210 
 
 4D. &R. 475 
 
 Peake R. 219 
 
 MSS. G. S. G 
 
 7St. Tr. 1218 
 
 Peake N. P. G. 45 
 
 R. &R. 305 
 
 40 L. J. Q. B. 96 
 
 7G. &P. 673 
 
 1 Lew. 118 
 
 8GoxG. G. 69 
 
 2E. &B. 933 
 
 1 Sid. 174 
 
 8C.B. 827 
 
 G. &M.337 
 
 45 L. J. M. G. 391 
 ]2GoxG. G. 168 
 
 41 L. J. M. C. 85 
 
 9G. &P. 313 
 
 1 M. & Rob. 121 
 
 L. &G. 165 
 
 4f\<S:P. 397 
 
 1 Lev. 125 
 
 xlv 
 
 PAGE 
 
 340 
 
 183 
 
 398 
 
 213 
 
 330,340 
 
 556 
 
 488 
 
 206 
 
 351 
 
 &K. 878 ... 269 
 
 344,597 
 
 437 
 
 39 
 
 211 
 
 188,193 
 
 70 
 
 ...232,243,255 
 
 16 
 
 104 
 
 539 
 
 456,540 
 
 602 
 
 550 
 
 586 
 
 471 
 
 ... 85,108,504 
 ... 42, 85,417 
 
 190 
 
 366 
 
 193 
 
 355, 358, 362, 445, 
 
 502, 510 
 109, 110, 130, 136 
 
 159,319 
 
 343 
 
 407 
 
 325 
 
 224 
 
 ...346,433,434 
 
 270 
 
 404 
 
 566 
 
 327 
 
 417 
 
 464 
 
 150,526 
 
 364 
 
 369 
 
 218 
 
 390,391 
 
 369 
 
 156 
 
 364 
 
 116 
 
 3!)9 
 
 151, .384 
 
 229 
 
 3()1 
 
 183 
 
 538 
 
 3(;4 
 
 523 
 
 494 
 
 129,142
 
 xlvi 
 
 Stevens, IJcx r. 
 
 Strvtutoii, l{ex r. ... 
 
 Sfiiwiinl r. Diiim ... 
 !Stik'3 r. Nokt's 
 
 Stiiuitsoii, lie.v V. ... 
 
 Stoliiiit V. Diydc'ii ... 
 ^^t(>(•kl)I•i(lg^• r. C^iiicku 
 
 Stoikdalo, Rt'.v v. ... 
 
 The Kin- r. 
 
 V. Hansard 
 
 Hlockllelh v. Dc Tastet 
 iSUx'kley, Rex v. 
 Stoke Golding, Hex v. 
 Stokes, Reg. v. 
 
 Rex V. 
 
 Stolady, Reg. v. 
 Stone, Reg. v. 
 Rex V. 
 
 Table of Cases. 
 
 r. I'lacklmvne 
 
 Stoiiyer, Reg. v. 
 Stourliridge, Rex v.... 
 Stoveld, Rex v. 
 Straliord's (Lord) case 
 Stranger v. Searle . . . 
 Stratton, Rex v. 
 Strauss v. Francis . . . 
 Strijip, Reg. v. 
 Struner, Reg. v. 
 Stuart V. Lovell 
 Stiibbs, Reg. v. 
 Studdy V. Saunders 
 Sturm V. Jeffree 
 Sudbury, Rex v. 
 Sullivan v. Sullivan 
 
 R. V. 
 
 Sulls' case 
 
 Summers' case 
 Summers r. Mosely . . . 
 Simderland's case ... 
 Sussex Peerage case 
 Sutclilie, Reg. v. ... 
 Sutton, Rex v. 
 
 Swallow, Rex v. 
 Swan (Case of) v. Jeflery; 
 Swatkins, Eex v. ... 
 Sweeting r. Fowler. . . 
 Swensden's case 
 3 wilt r. Swift 
 Swinnerton, Reg. v. 
 Sydsertl" f. Reg. 
 Sykes v. Dunbar ... 
 
 .-) 1!. iS: f!. '2I(; 
 :i East R. :J62 
 12 M. .^ W.nr).j ... 
 
 7 Kaflt, 4;):i,r)()y ... 
 
 2C. &P. 415 
 
 I M. & w. ni5 ... 
 3C.&K. 305 ... 
 ■2X Ceo. 3 
 
 2 Ridgway's sjieeches < 
 Er.skiue, p. 208 
 9 A. & E. 1, 2 P. & D. 1 
 
 II A. & K. 297, 3 P. &1 
 4 Campb. 10 
 
 1 East P.O. 310 ... 
 1 B. & Aid. 173 ... 
 4 (Jox C. C. 451 ... 
 ^ISS. C. S. G. ... 
 1 F. &F. 518 
 Dears. C. C. 251 ... 
 GT. R. 527 
 1 East R. 639 
 
 1 Esp. 37 
 
 M8S. C. S. G. ... 
 8]'.. &C. 9G 
 GC. &P. 4S9 
 ISt. Tr. 723 
 
 1 Esp. 14 
 
 1 Campb. 549 
 4F. &F. 1107 ... 
 Dears. C. C. G48 ... 
 
 1 C. & K. 650 ... 
 2Stark. R. 93 ... 
 Dears. C. C. 555 ... 
 
 2 Dowl. & R. 347 
 2C. &K. 442 ... 
 
 1 Lord Ravm. 484 
 
 2 Hagg. C." R. 254 
 
 11 Co.xC. C. 44 (Irish) 
 2 Leach, 861 
 
 2 East P. C. 785 ... 
 4 Tvrw. 158 
 
 1 Lew. 109 
 
 llCl. &F. 85 ... 
 
 4 CoxC. C. 270 ... 
 
 5B. &Ad. 52 ... 
 
 4M. &S. 532 ... 
 
 1 Phill. Ev. 35 ... 
 
 Fost. 104 
 
 4 C. & P. 548 
 
 I Stark. R. 106 ... 
 
 5 St. Trials, 456 ... 
 
 3 Knapp. 303 
 C. & M. 593 
 
 II Q. R. 245 
 Selw. N. P. 1059... 
 
 tlie I 
 346 
 
 .n. T. / 
 
 I'AfJB 
 
 48 
 113 
 324 
 1S2 
 5G4 
 359 
 307 
 200 
 
 200 
 
 18' 
 
 186 
 187 
 
 473,479 
 
 533 
 
 336 
 
 5(37, 5G8 
 
 601 
 
 96 
 
 6 
 
 144,369 
 
 366 
 
 627 
 
 322,371 
 
 334 
 
 89 
 
 555 
 
 437,570 
 
 126 
 
 187 
 
 508,509 
 
 563 
 
 -,221,222,378 
 ..603,607,609 
 
 550 
 
 342 
 
 128 
 
 295 
 
 180 
 
 402 
 
 392 
 
 562 
 
 310 
 
 ..305,364,421 
 
 441 
 
 319 
 
 ..221,396,408 
 
 604 
 
 394 
 
 497,504 
 
 399 
 
 624 
 
 310 
 
 480 
 
 129,133 
 555 
 
 Tabart r. Tipper 
 Taggart, R. v. 
 Tanner r. Taylor 
 Tiumet, Rex i: 
 
 1 Campb. 350 
 
 2 Cox C. C. 50 . 
 cited 3 T. R. 749 . 
 R. & R. 351 
 
 187,219 
 ... 310 
 ... 569 
 ... 4o2
 
 Tapliii, Rex v. 
 
 ■ V. Atty 
 
 Tarrant, Rex v. 
 
 Tarry v. Asliton 
 Tattersall, Rex v. . . 
 Taiuiton v. Wyvorii 
 Tawell, Res- v. 
 Taylor, Reg. v. 
 
 -, Rex r. 
 
 R. V. 
 
 ■ V. Blacklow 
 
 ■ V. Brown , 
 
 V. Forster . 
 
 • V. Hawkins. 
 
 V. WiUans . 
 
 Teal, Rex v.... 
 Teed v. Martin 
 Telicote, Rex v. 
 Tew, Reg. v. 
 Thatcher's case 
 Thomas's case 
 Thomas, Reg. v. 
 
 Rex V. 
 
 V. Ansley . . . 
 V. David ... 
 V. Newton... 
 
 Thompson's case 
 Thomi)son, Reg. v. 
 
 — Rex V. ... 
 
 — R. V. ... 
 
 — R. ». ... 
 
 V. Trevanion 
 
 Thorley v. Lord Kerry 
 Tliornhill, Reg. v. 
 Thornton, Rex v. 
 K. V. 
 
 r. Royal Exchange Co. 
 
 V. Stephen 
 
 Thorogood, Rex v. ... 
 Tliorpe V. Gisl)urne. . . 
 Thring, Rex v. 
 Tlarogmorton v. Walton ... 
 
 Thurtell's case 
 
 Tibshelf, Rex v 
 
 Tiddeman, Reg. i'. ... 
 Tilson, Reg. v. 
 
 Tahle of Cases. 
 
 2 East P. C. 712 ... 
 
 3 Ring. R. 164 ... 
 6 0. & P. 182 
 
 4 Burr. 2106 
 
 45 L. J. Q. B. 260 
 MSS. Bavley, J. ... 
 2Campk II. 297... 
 
 2 C. & K. 309 ... 
 8C. &P. 733 
 
 8C. &P. 726 
 6CoxC. C. 58 ... 
 IF. &r. 511 
 3CoxC. C. 84 ... 
 5CoxC. C. 138 ... 
 IF. &F. 5,35 
 1 Campb. 404 
 Skiun. 403 
 
 1 Leach, 37 
 7a&P. 136 
 Peake R. 11 
 
 Vent. 293 
 
 11 CoxC. C. 261 ... 
 13CoxC. C. 77 ... 
 
 3 Bing. N.C. 235... 
 
 3 Stark. Ev. 861 ... 
 2C. &P. 195 
 16Q. B. 3U8 
 3Bing. R. 449 ... 
 11 East R. 307 ... 
 
 4 Campb. 90 
 
 2 Stark. R. 483 ... 
 Dears. C. C. 429 ... 
 T. Jones, 53 
 
 2 Leach, 637 
 iCoxC. C. 52 ... 
 2C. &K. 806 
 IC. &P. 472 
 7C. &P. 345 
 6C. &P. 353 
 7C. &P. 817 
 
 6 Esp. 80 
 
 7C. &P. 350 
 M.&M. 48 
 
 1 Leach, 291 
 16Q. B. 832 
 3F. &F. 824 
 
 R. & M. C. C. R. 139 
 13 Cox C. C. 181 ... 
 41 L. J. M. C. 112 
 
 Skin. 402 
 
 4 Taunt. 355 
 8C. &P. 575 
 R. & M. C. C. R. 27 
 
 MSS 
 
 Peake R. 25 
 
 2 M. & Rob. 45 ... 
 8 Mod. 179 
 
 2C. &P. 21 
 5C. &P. .507 
 2 Roll R. 461 
 Alis. C. L. o84 ... 
 IB. & Ad. 190 ... 
 4CoxC. C. 387 ... 
 IF. &F. 51 
 
 xlvii 
 
 PAGE 
 
 ... 256 
 ... 339 
 ... 506 
 ... 117 
 ... 634 
 ... 378 
 ... 303 
 ... 379 
 .464, 467, 471 
 ... 583 
 95, 438 
 ... 253 
 ... 354 
 ... 377 
 430,431 
 ...39,67 
 ...44,86 
 ... 122 
 ... 504 
 ... 616 
 ... 195 
 ... 395 
 ... 510 
 539. 543 
 ... ' 88 
 ... 541 
 188, 193 
 ... 4ii4 
 159,319 
 ... 347 
 ... 506 
 ... 617 
 ... 533 
 ... 506 
 ... 354 
 ... 42 
 ... 155 
 442, 447 
 
 443 
 
 520,584 
 
 330 
 
 588 
 
 573,578 
 456,464 
 127, 156 
 
 624 
 
 398 
 
 523 
 
 621 
 
 352 
 
 188,205 
 
 70 
 
 458,472 
 
 532 
 
 570 
 
 3S3 
 
 72 
 
 43(i 
 
 413 
 
 324 
 
 4S3 
 
 295 
 
 -Ih-l 
 
 302
 
 xlviii 
 
 'riiiiiniiiH, Ilex 1'. 
 'riiiintliy, \{t'<i. r. ... 
 
 Tipjict, llvx r. 
 
 Toild r. Hawkins ... 
 
 Toliiiuui r. I'lii'llniry 
 
 'rolllHlll )'. .lolllLSlUllL! 
 
 'I'lilsdU, Uc^'. V. 
 'riiiiiliiisoii, \i. V. 
 Tnii;,''s case ... 
 Toii},nu' V. Tongue ... 
 Too^'ood r. Spyrin-,' 
 Tciuke's (Ilorne) case 
 Tooker, Reg. v. 
 
 • V. Duke of luau 
 
 Toole, Reg. v. 
 
 Topham, Rex v. 
 
 V. M'Gregor 
 
 Topping, R. i>. 
 Tovey v. Lmdsay ... 
 Towey, Reg. v. 
 ToAvuseud, R. v. 
 
 Tahic of Cftscs. 
 
 fult 
 
 Travers, Rex r. 
 Tieharne, Rex v. ... 
 Tremoarne, Rex v. ... 
 Trist V. Johnson 
 Trowter s case 
 Truonian, Reg. v. . . . 
 Truman's case 
 Tul '1 )y, Rex r. 
 Tubertield alias Turl)Lr 
 
 Reg. r. 
 Tucliin, Reg. v. 
 Tucker, Rex f. 
 
 Tuffs, Rex 1'. 
 Tuppei- r. Folkes ... 
 Turner, Reg. v. 
 . Rex v. 
 
 field. 
 
 R. r.... 
 r. Evles 
 
 — V. Pearte 
 
 — V. Raillon 
 
 Turiiuand v. Knight 
 Tuson r. Evans 
 Twenilow r. Oswin... 
 Twyning, Rex r. ... 
 
 -, The King v. 
 
 Tvler, Rex V. 
 
 Tylney, Reg. v. 
 Tyson, R. v.... 
 
 7 i'.<^ WV.H) 
 1 F. &F. ;j!> 
 
 1 Kust 1'. C. 3r)i ... 
 R. &!{..')( )9 
 HC.&K88 
 :v.) L. J. Q. B. 130... 
 
 2 K. &F. (UJ 
 4F. &F. 103 
 3(;L. J. M. C. 41, 1 L. 11 
 
 Kel. IH 
 
 1 ]\Ioore P. C. 90... 
 4Tvr\v. 582 
 2.-) St. Tr. 446 
 4CoxC.C.y3 ... 
 
 Say. 21)7 
 
 D.'&B. 194 
 7CoxC. C. 244 ... 
 4T. R. 12G 
 IC. &K. 320 
 Dears. C. C. G47 ... 
 
 1 Dow's Rep. 117... 
 8CoxC. C. 328 ... 
 lOCoxC. C. 356 ... 
 4F. &F. 1089 ... • 
 
 2 Str. 700 
 
 R. & M. C. C. R. 298 
 R. & M. N. P. R. 147 
 1 M.& Rob. 259 ... 
 
 12 Vin. Ahr. 118 ... 
 8C. &P. 727 
 J East, pp. 470,471 
 5C. &P. 530 
 
 10 Cox C.C.I; 11 LawT 
 
 Holt's R. 424 
 
 2C. &P. 500 
 
 R. & M. C. C. R. 134 
 
 5C. &P. 167 
 
 9 C. B. (N. S.) 797 
 
 2C. &K. 732 
 
 R. & M. C. C. R. 347 
 
 13 East, 228 
 5M. &S. 206 
 
 1 Leach, 536 
 9CoxC. C. 145 ... 
 3B. &P. 463 
 IT. R. 719 
 
 2Esp. 474 
 
 2M. &W. 98 
 12A. &E. 733 ... 
 
 2 Campb. 85 
 2B. &A. 386 
 2M. &W. 894 ... 
 R. & M. C. C. R. 428 
 IC. &P. 129 
 1 Den. C. C. 319 ... 
 37L. J. M. C. 7 ... 
 
 C. C. 
 
 49 
 
 208, 
 
 I'AOK 
 
 ... 402 
 ... 124 
 354, 3.59 
 ... 411 
 l'.)\, 193 
 ... 332 
 ... .5s7 
 314,349 
 5 
 
 48.5, 600 
 ... 296 
 ... 190 
 ... 414 
 ... 5S4 
 ... 415 
 ... 403 
 ... 446 
 217,221,223 
 ... 568 
 ... 264 
 ... 267 
 73 
 18 
 ... 227 
 ... 612 
 ... 269 
 70 
 ... 341 
 ... 360 
 ... 372 
 ... 315 
 474, 477 
 
 ... 390 
 
 ... 202 
 ... 93 
 ... 263 
 ... 441 
 ... 348 
 86, 87, 90 
 417,486 
 124, 131 
 ... 366 
 ... 402 
 ... 265 
 ... 398 
 &26, 627 
 . . . 550 
 542, .543 
 ... 189 
 ... 323 
 .324, 326, 365 
 ... 266 
 241, 245 
 ... 470 
 546, 547 
 11 
 
 Ulhner, Reg. v 
 
 I'pLhurch, Uex c. ... 
 Upper Buddington, Rex v.... 
 
 U. 
 
 4CoxC. C. 442 ... 
 R. & M. C. C. R. 465 
 
 SDowl. & R. 726... 
 
 464, 467 
 ... 549
 
 Upton (Dennis), Eex i\ 
 Upton St. Leonard's, Ee^ 
 Utterby, Eex v. 
 
 Table of Cases. 
 
 MSS. 
 
 10 Q. B. 827 
 
 2 PhilL Er. 128 
 
 xlix 
 
 PAGE 
 
 315 
 
 535 
 407 
 
 Vacher v. Cocks 
 Vaillant v. Dodemcad 
 Van Butcliell, Rex v. 
 Vandercomb, Eex v. 
 Vander Donckt v. Thellussun 
 Vane's (Sir H.) case 
 
 Vauglian, Eex v 
 
 V. ]\Iartin ... 
 
 Veley, E. r 
 
 Venafrav. Johnson... 
 Vent, Eex y. 
 
 • V. Pacey 
 
 VereLst, Eex v. 
 Verry V. Watkins ... 
 Villars v. Monsley ... 
 Vincent, Eeg, v. 
 Viney v. Barss 
 Virrier, Eeg. v. 
 Voke, Eex v. 
 Volant V. Soyer 
 Vowles V. Miller ... 
 
 V. 
 
 1 B. & Ad. 145 
 
 2 Atk. 524... 
 
 3 C. & P. 629 
 
 2 Leach, 708 
 
 8 C. B. 812 
 1 Lev. 68 
 
 4 Burr. 2494 
 1 Esp. 440 
 
 4r. &F. 1117 . 
 
 1 M. & Eob. 316 
 ISOl 
 
 4 Euss. 193 
 
 3 Campb. 432 
 7 C. & P. 308 
 
 2 Wills, 403 
 
 9 C. & P. 91 
 1 Esp. 292 
 
 12 A. & E. 317 
 E. & E. 531 
 
 13 C. B. 231 
 
 3 Taunt. 140 
 
 351 
 
 539,541,552 
 
 355 
 
 368,428 
 
 422,423 
 
 318 
 
 116 
 
 566 
 
 189 
 
 508,532 
 
 209 
 
 544 
 
 84,327 
 
 18 
 
 205 
 
 110,116, 117,383,563 
 
 368 
 
 70,74,99 
 
 377 
 
 346,540,544 
 
 404 
 
 W. 
 
 Waddington, Eex v. 
 Wade, Eex v. 
 
 V. Brotighton 
 
 Wadswortli v. Hamshaw 
 Wagstaft', Eex v. 
 Wainwright, E. v. ... 
 Wakefield's case 
 Waldron v. Ward ... 
 Walford, Eeg. v. 
 Walker's case 
 
 , Eeg. ?;. ... 
 
 ' v. Reg. 
 
 ■ , Eex V. 
 
 -, E. V. 
 
 — V. Wildmaa 
 
 AVulking, Eeg. v. 
 Walkley, Eex ». ... 
 Wall, Eex v, 
 Wallace, E. v. 
 Waller, Eex v. 
 
 V. Hers fall ... 
 
 Walsby V. Anley ... 
 ^^'alsh, Eeg. v. 
 Walter, Eex v. 
 
 v. Haynes ... 
 
 Walters !'. Lewis 
 Walton, Eeg. v. 
 Wanibough v. Skenk 
 Wavburton, R. v, ... 
 Ward, Eeg. v. 
 
 VOL. III. 
 
 IB. &C. 26 
 
 195 
 
 E. & M. C. C. R. 86 
 
 616 
 
 3 Ves. &B. 173 
 
 122 
 
 2B.&B. 5(-0 
 
 543 
 
 R. &E. 39S 
 
 250 
 
 13CoxC. C. 171 
 
 351 
 
 2 Lew. 1 123, 
 
 124,421,625,627 
 
 StvL 449 
 
 539 
 
 8C. &P. 767 
 
 432 
 
 1 Phill. Ev. 478 
 
 383 
 
 IF. &F. 534 
 
 523 
 
 8E. &B. 439 
 
 56 
 
 3 Campb. 264 
 
 399 
 
 cited 6 C. & P. 161 
 
 480 
 
 13 Cox a C. 94 
 
 634 
 
 6Madd. 47 
 
 542 
 
 8C. &P. 243 
 
 430 
 
 CC. &P. 175 
 
 443,493 
 
 MSS. C. S. G 
 
 525,534 
 
 lOCoxC. C. 500 
 
 407,408 
 
 3 Stark. Ev. 856 
 
 37 
 
 1 Canii)b. 501 
 
 347 
 
 3 Law T. iii'A) 
 
 173 
 
 5 Cox C. C. 115 
 
 515 
 
 7C. &P. 267 
 
 508 
 
 3 Esp. N. P. C. 21 
 
 215 
 
 IR. &M. N. P. R. 149 .:. 
 
 323 
 
 7 C. & P. 344 
 
 351 
 
 L. &C. 288 
 
 235,257 
 
 1 I'enningt. 167 
 
 325 
 
 40 L. J. M. C. 22 
 
 126 
 
 3 Cox C. C. 279 
 
 85,90
 
 Tilhlv of C'iscs. 
 
 Ward, lli'g. V. 
 
 Hex V. 
 
 AV an lie's case 
 AViiricksliall, Rox v. 
 W'iwnvT, JU'X )'. 
 ■\\'iuit'ii r. Warren . 
 A\'arrin;^luun, Keg. i 
 AVasoii, Kc j)arte 
 
 . V. Walter 
 
 I Cox f!. (J. 101 ... 
 2(J. &K. Tn!) ... 
 10 Cox C. C. 42 ... 
 (; (1 & i\ 30(5 
 i;. ct K. 9 
 
 1 J.(!ach, 2(5:$ 
 MSS. (J. S. (I. ... 
 4 Tyrw. W'jO 
 
 2 Den. C. C. 447 
 3ft L. J. Q. B. 302 
 
 \ 4 L. K. Q. Ji. 73 ; 38 L, 
 
 "Walcrfield v. \ 
 
 Waters, Eex v. 
 •\\'alkin v. Hall 
 Watson's case 
 "Watson, Keg. v. 
 
 ■ Rexv. 
 
 The l-.ishop of } 
 Cliichester j 
 
 t'. King 
 
 Watts, Reg. v. 
 
 ■ V. Eraser 
 
 Waully, Rex v. 
 Weatherstone c. Hawkins 
 W^eaver, R. v. 
 Webb, Rexv. 
 
 0. Smith 
 
 AVebster, Reg. v. 
 
 0. Webster 
 
 Weeks, Reg. v 
 
 V. Argent 
 
 V. Sparke 
 
 Welbonrn's ease 
 Weller, Reg. v. 
 
 Wells, Rex v. 
 
 V. Fisher 
 
 V. Fletcher ... 
 
 Welsh, Reg. v. 
 Welton, Reg. v. 
 Weltje, Rex v. 
 
 Wenham, R. v 
 
 Wenman v. Ash 
 
 Wert's case... 
 
 West's case ... 
 West V. Baxendale ... 
 
 1». Smith 
 
 Westbeer's case 
 Western, R. v. 
 
 Western Counties Manure Co. v . 
 Lawes' Chemical Manure Co. 
 Westiness, Rex v. ... 
 Westlake v. Collartl ... 
 Westley, Reg. v. 
 
 2 Mod. 118 
 
 R. & I\r. C. C. R. 457 
 37 L. J. Q. R. 12.') 
 32 How. St. Tr. 107 
 3C. &K. Ill ... 
 
 2 Stark. R. 140 j J^;J' 
 
 Stark. N. P. C. 128 
 2T. R. 206 
 
 1 Campb. 215 
 () C. & P. 053 
 
 2 Stark. R. 155 ... 
 2 T. R. 19!) 
 
 1 Stark. R. 121 ... 
 L. & C. 339 
 7A. &E. 223 ... 
 R. & M. C. C. R. 1G3 
 1 T. R. 110 
 43 L. J. M. C. 13 
 4C. &P. 564 ... 
 6C. &P. 595 ... 
 ]\Iann. Dig. 324 ... 
 MSS. C. S. G. ... 
 IC. &P. 337 ... 
 IF. &F. 515 ... 
 Belie. C. 154 ... 
 IF. &F. 401 ... 
 
 L. &C. 18 
 
 16 M. & W. 817 ... 
 IM. &S. 680 ... 
 1 East P. C. 358... 
 2C. &K. 223 ... 
 M. &M. 326 
 
 1 M. &Rob. 99 ... 
 5C. &P. 12 
 
 3F. &F. 275 ... 
 9CoxC. C. 296 ... 
 
 2 Campb. 142 ... 
 10 Cox C. C. 222... 
 13C. B. 836 
 
 1 Phil. Ev. 28 ... 
 2Phil. Ev. 419 ... 
 9C. B. 141 
 IT. &G. 825 .. 
 
 1 Leach, 12 
 
 10 Cox C. C. 93 ... 
 
 43 L. J. Ex. 171 
 
 2 Str. 1088 
 B. N. P. 236 
 Belie. C. 193 ... 
 
 Ill 
 
 524 
 
 263 
 
 91,414 
 
 392 
 
 1I2,4s3,4m4 
 
 452,498 
 
 1911,213 
 
 467, 4!»1 
 
 127 
 
 , J. Q. B. 34 ... 182, 
 184, 185, 186, 193 
 
 182 
 
 401 
 
 180 
 
 5.56 
 
 .509 
 
 369, 378, 385, 3s6, 553, 
 573, 577, 591, 627 
 
 558 
 
 ... 178,219,338,342 
 
 220,347 
 
 564 
 
 318 
 
 204 
 
 324 
 
 517 
 
 218 
 
 272 
 
 188 
 
 427 
 
 476 
 
 604 
 
 571 
 
 622 
 
 541 
 
 76 
 
 62 
 
 363 
 
 376 
 
 ...542,545,550 
 
 363 
 
 ... 355 
 
 • 510,520 
 
 609 
 
 621,626 
 
 316,626 
 
 488 
 
 523 
 
 204 
 
 412 
 
 190, 193, 213 
 
 601 
 
 573 
 
 390 
 
 211 
 
 394,600 
 
 10 
 
 207 
 
 72 
 
 541 
 
 6, 87, 108
 
 Tahle of Cases. 
 
 Westwood, Rex %\ ... 
 Wliaram v. Eoutledge 
 Wlieater, Reg. v. ... 
 Wheatland, Reg. v.... 
 Wlieatley v. Williams 
 Wheeley, Reg. v. ... 
 WlieeUug's case 
 
 Whiley, Reg. v. 
 
 Whitaker v. Wisbey 
 Wliitbread, Rex v. ... 
 White's case 
 White, Reg. v. 
 
 — , Rex V. 
 
 Whitehead, Rex v. . 
 
 . , R. V. . 
 
 Whitehouse, Reg. v. 
 
 • , Rex v.... 
 
 Whiteley v. Adams... 
 Whitelock v. Musgiave 
 Whitfield n Aland... 
 Whitfordi'. Tutin ... 
 Whiting, Rex v. 
 Wliitworth, Reg. v. 
 Whybrow, Reg. v. ... 
 Whyman v. Garth ... 
 Wicker, Reg. v. 
 Widdop, R. V. 
 Wigley, Rex v. 
 Wihen v. Law 
 
 Wild's case 
 
 Wild, Rex ». 
 Wilkes, Rex v. 
 
 Wilkins, Reg. v. 
 Wilkinson, Reg. i 
 Wilks, Rex v. 
 Williams's case 
 Williams, Reg. v. 
 
 Rix I). 
 
 (Jenkin), R. v. ... 
 
 \Lv. 
 
 V. liryant... 
 
 V. East India Com- 
 
 l>any 
 
 ■ V. Mundie 
 
 4C. &P. 547 
 
 5 Esp. 235 
 
 2 Moo. C. C.R. 45 
 
 8C. &P. 238 
 
 1 M. & W. 533 
 
 8C. &P. 250 
 
 1 Leach, 311 
 
 rightly reported 1 C. & K. 150 
 erroneously reported 2 M. C. C. R. 186 
 12C. B. 44 
 
 PAGE 
 
 376 
 345 
 479 
 77 
 544 
 473 
 441 
 
 269 
 
 1 C. & P. 84 
 
 1 Ltach, 430, 431 
 
 2 Cox C. C. 192 . 
 
 5 Cox C. C. 562 . 
 
 2 Cox C. C. 232 . 
 M. & M. 271 
 R. & R. 508 
 
 3 Campb. 98 
 1 Campb. 359 , 
 1 C. & P. 67 
 10 Cox C. C. 234 
 3 Cox C. C. 86 
 Dears. C. C. 1 
 
 6 Cox C. C. 38 
 MSS. 
 15 C. B. (N. S.) 392 
 
 3 Tyrw. 541 
 
 2C. &K. 1015 ... 
 10 Bing. R. 395 ... 
 7C. &P. 771 ... 
 IF. &F. 382 ... 
 8CoxC.C.438 ... 
 8 Exch. R. 803 ... 
 18 Jurist, 252 
 42 L. J. M. C. 
 2 Lew. 258 
 3Stark. R. 63 ... 
 1 Leach, 17 
 R. & M. C. C. R. 452 
 2Wils. 121 
 
 7 C. c^ P. 172 ... 
 
 4 Cox C. C. 92 ... 
 
 8 C. & P. 662 
 
 4 Burr. 2527 
 1 Lew. 137 
 
 ] CoxC. C. 16 ... 
 6CoxC. C. 343 ... 
 1 Cox C. C. 363 ... 
 8C. &P. 434 
 
 1 CoxC. C. 289 ... 
 
 2 Campb. 646 
 7 C. & P. 298 
 MSS. C. S. G. ... 
 7C.&P. 321 
 
 8C. &P. 284 
 
 2 Campb. 646 
 MSS 
 
 5 P.. & A. 597 ... 
 12 CoxC. C. 101... 
 
 9 Cox C. C. 448 ... 
 5M. &W. 447 ... 
 
 3 East R. 192 ... 
 R. & M. N. P. R. 34 
 
 331 
 
 562 
 
 612 
 
 510,565,566 
 
 430 
 
 46 
 
 98 
 
 441 
 
 217,224,572 
 
 204 
 
 383 
 
 616,629 
 
 66 
 
 319 
 
 120,127,151, 152,153,154 
 625 
 
 9 L. R. 26 C. R. 3 
 
 ... 189 
 
 ... 434 
 
 ... 507 
 
 ... 340 
 
 ... 391 
 
 ... 358 
 
 ... 91 
 
 ... 433 
 
 ... 521 
 
 ... 479 
 
 ... 72 
 
 ... 593 
 
 ... 601 
 
 ... 444 
 
 ... 178 
 605, 606 
 
 ... 350 
 
 ... 509 
 
 ... 197 
 
 ... 438 
 
 ... 251 
 526, 567 
 
 ... 4:lO 
 
 ... 570 
 
 ... 620 
 
 ... 395 
 
 ... 401 
 458, 497 
 
 ... 612 
 
 ... 624 
 
 ... 220 
 194, 196 
 
 ... 208 
 
 ... 529 
 
 ... 437 
 
 ... 40!) 
 
 331,365 
 
 ... 543
 
 lii 
 
 Williams v. Muiininf^'s 
 r.(U]i' ... 
 
 V. W'illiiuiis 
 
 V. Y()Uii<^]iU9l);iii 
 
 Williiinisdii r. Fivic 
 AVillis'.s case... 
 AVilsluuv, lie},', r. ... 
 AVilsoii's case 
 AVilson, l{e<,'. v. 
 
 Tnhh' nfGisrs. 
 
 R.V.... 
 Ilex V. 
 r. Bowie 
 V. Ho(l},a'S 
 V. lla.stall 
 V. Stul)S 
 
 Wilton, Reg. v. 
 
 Wiltshire, liec;. r. ... 
 
 V. Wiltshii-e 
 
 Wimlsor, Reg. v. 
 
 r. The Queen 
 
 Wing r. Taylor 
 Wink, Ilex t\ 
 AVinkworth, Rex r.... 
 Winslow, Keg. v. ... 
 Winter r. Bull 
 AVilhal, Rex v. 
 Withers, Reg. v. 
 
 Rex V. 
 
 Wolnu-n (Inhab.), Rex v. 
 Wolton V. Gavin ... 
 Wood, Rex V. 
 
 Reg. V. 
 
 V. Bowron ... 
 
 r. C'ooy>er 
 
 V. Mackinsun 
 
 Woodcock's case 
 
 Woodfal, Rex v. 
 WoodfalFs case 
 "\^^oodford V. Ashley 
 Woodhall, R. r. .. 
 Woodheail, Reg. v. .. 
 Woodman's case 
 Woods, Reg. V. 
 
 ■ V. Woods .. 
 
 Woodward, Rex v. .. 
 
 r. Cottun 
 
 V. Lander 
 
 Woolford, Rex r. ... 
 Woolmer, Reg. v. ... 
 \\\n)\not\i V. Meadows 
 AVdulston, Rex v. ... 
 
 Wri'^hts case 
 Wright, Rex v. 
 
 |{. & M. N. I'. II. IM 
 
 2 Str. MMJ) 
 
 :{ 'l\vi\v. nsH, 1 c. & M. fw-') 
 
 I liagg. 304 
 
 1 Stark. R. 139 
 
 4:5 L. J. C. P. ICl 
 1 Hawk. c. S!), s. 17 
 
 1 C. k M. 145 
 
 1 Lew. 78 
 
 8CoxC. 0.453 
 
 D. & B. L57 
 
 1 Den. C. C. 284 
 
 3F. &F. 119 
 
 12(V)xC. C.022 
 
 Holt R. 597 
 
 IC.&P. 810 
 
 2 East R. 312 
 
 4T. 11. 753 
 
 HoK .330 
 
 IF. &F. 391 
 
 IF. &F. 309 
 
 12A. &E. 793 
 
 3 Hagg. Ex. R. 332 
 
 4F. &F. 3G0 
 
 35 L. J. M. C. 121 
 
 2 Swabev & T. 278 
 
 6C. &P. 397 
 
 4 0. & P. 444 
 
 8 0oxO. 0. 397 
 
 2M. &Rob. 357 
 
 1 Leach, 88 
 
 4 00x0.0.17 
 
 2 Oampl). 578 
 
 lOEast, R. 395 
 
 16 Q. B. 48 
 
 MSS.Bayley, J 
 
 5 Jurist, 225 
 
 lOOoxO. 0.344 
 
 10. &K. 645 
 
 2 ]\[. & Rob. 273 
 
 1 Leach, 500 ... 354, 
 
 2 Leach, 5(il 
 
 5 Burr. 2667 
 
 Essav on Libels, p. 18 ... 
 
 2 Oanipb. 193 
 
 12CoxO. 0.240 
 
 2 0. & K. 520 
 
 1 Leach, 64 
 
 6CoxO. 0. 224 
 
 2 Bay. 476 
 
 R. & M. C. 0. R. 323 ... 
 
 6 East R. 133 
 
 11 Mod. 137 
 
 4Tyrw. R. 689 
 
 6 0. & P. 548 
 
 1 M. & Rob. 384 
 
 12A. &E. 422 
 
 5 East, 463 
 
 l^arnard, 162 
 
 Fitz^ab. 66 
 
 1 Lew. 48 
 
 R. &R. 456 
 
 8 T. Rep. 297, 298 
 
 4F. &F. 967 
 
 PAOE 
 
 340 
 
 402 
 
 210 
 
 456 
 
 335 
 
 1K9 
 
 367 
 
 512,530 
 
 355 
 
 522 
 
 4!)6 
 
 402 
 
 314 
 
 512 
 
 503 
 
 329, .345 
 
 324 
 
 539,542 
 
 399 
 
 437 
 
 523 
 
 9 
 
 2!)6 
 
 464 
 
 60.3,620 
 
 270 
 
 352 
 
 377 
 
 3^1 
 
 5!M 
 
 395 
 
 ... 95,400,402 
 539,540 
 
 560 
 
 327 
 
 48 
 
 389,631 
 
 175 
 
 567 
 
 562 
 
 355, 356, 361, 625 
 
 513 
 
 221 
 
 215 
 
 37 
 
 394 
 
 562 
 
 3 
 
 561 
 
 325 
 
 36,403 
 
 232 
 
 232 
 
 407 
 
 190,193 
 
 609 
 
 218 
 
 179,211 
 
 195 
 
 195 
 
 457 
 
 571 
 
 Ib2 
 
 5tsl
 
 Wright V. Eeg. 
 
 Be..! 
 
 V. Beckett . . . 
 
 V. Doe d. Tatliiuu 
 
 V. Willcox . . . 
 
 V. Woodgate 
 
 Wrightson, Rex v. ... 
 Wroxton, Rex v. 
 Wyatt 11. Gore 
 Wych, Rex v. 
 Wylde, Rex v. 
 Wylie, Rex v. 
 
 Table of Cases. 
 
 14 Q. B. 148 
 
 2 K. & J. '2!J5 
 1 M. & Rob. 414 
 1 A. & E. 3 
 9 C. B. 650 
 
 1 T. & G. 12 
 
 2 Salk. 6'.m 
 
 4 B. & Ad. 640 
 Holt R. 299 
 2 Str. 872... 
 6 C. & P. 380 
 1 New R. 92 
 
 liii 
 
 PAGE 
 ... 130 
 
 ... 311 
 
 526, 594 
 ... 328 
 ... 566 
 .188,190,193 
 ... 204 
 ... 296 
 ... 554 
 ... 616 
 94,532,571 
 371,376 
 
 Yates, Reg. v. 
 
 B.V 
 
 Yeatman, Ex parte ... 
 Yelverton v. Yelverton 
 Yeoveley, Reg. v. ... 
 Yewin's case 
 Young, Reg. v. 
 
 R. v.... 
 V. Homier 
 
 Y. 
 
 C. & M. 132 
 6 Cox G. C. 441 
 12 Cox C. C. 233 
 4Dowl. P. R. 304 
 House of Lords p 
 8 A. & Ell. 806 
 2 Campb. 638 
 5 Cox C. C. 296 
 
 2 Cox C. C. 291 
 
 3 C. & K. 106 
 3 T. R. 106 
 
 2 T. R. 733 
 
 10 Cox C. C. 371 
 
 2 M. & Rob. 536 
 
 r Lui'd Weiisli 
 
 dak 
 
 ...20,73 
 
 157, 2-28 
 
 178 
 
 543 
 
 310 
 
 91,414,415 
 
 577, 588 
 
 270, 316, 626 
 
 626 
 
 521 
 
 369 
 
 112 
 
 609 
 
 437 
 
 Zulueta, Reg. v. 
 
 1 C. & K. 215 
 
 387
 
 A TREATISE 
 
 ox 
 
 CPiIMES AND MISDEMEANORS. 
 
 BOOK THE FIFTH. 
 
 OF OFFENCES WHICH MAY AFFECT THE PERSONS OF 
 INDIVIDUALS OR TROPERTY. 
 
 CHAPTER THE FIRST. 
 
 OF PERJURY AND SUBORNATION OF PERJURY. 
 
 Perjury, by the common law, appears to be a wilful false oath Perjury by the 
 by one who, being lawfully required to depose the truth in any common law. 
 proceeding in a court of justice, swears absolutely in a matter of 
 some consequence to the point in question, whether he be believed 
 or not. (a) 
 
 Subornation of perjury by the common law is an offence in Subornation of 
 procuring a man to take a false oath amounting to perjury, who perjury by the 
 actually takes such oath. But it seems clear that if the person, '^°°^"^"" '^^^* 
 incited to take such an oath, do not actually take it, the person 
 by whom he was so incited is not guilty of subornation of perjury, 
 yet it is certain that he is liable to be punished, not only by fine, 
 but also by infamous corporal punishment, (h) 
 
 An indictment charged that the defendant, an attorney, being- 
 retained to defend Wood against a charge of picking Lewis's 
 pocket, deceitfully procured himself to be employed by Lewis, and 
 persuaded Lewis to swear before the grand jury that he did not 
 know who picked his pocket, whicli he did, and no bill was re- 
 turned. An objection was made that Lewis's evidence was not 
 stated to have been false ; but, upon a case reserved, the judges 
 thought it unnecessary, as the defendant's crime was the same, 
 unless he knew it to be true, and that he should have proved, (c) 
 
 The false oath must be wilful, and taken with some degree of The false oath 
 deliberation ; thus if it appears that it was occasioned by surprise, "^"^*' ^^ ^^ ''*" 
 
 (a) 1 Hawk. P. C. o. 69, s. 1. 3 Iiist. there cited. 
 164. Com. Big. tit. Just !rc of Peace, B. (c) Rex v. Edwanls, East. T. 1761, 
 
 102. Bac. Ab. tit. Perjury. MS. Bayley, J. And as to dissnadinf^ 
 
 {h) 1 Hawk. P. C. c. 69, s. 10. Bac. witnesses from i,'iviiig evidence, see vol. 1, 
 
 Ab. tit. Perjury, and the authorities p. 360. 
 
 VOL. III. B
 
 iUiil taken with 
 HDtnc (kyiuu of 
 (Ifliberation. 
 
 A man iiiiiy 
 bo indictcil 
 for i)erjiirv in 
 Kwciiriii;^ tliat 
 lie lic/inr.i n 
 fai't to bo 
 true. 
 
 So also if lio 
 falsely swears 
 that he (Jiiids 
 a fact to bo 
 true. 
 
 The oath must 
 be false. 
 
 The oath must 
 be taken in a 
 jwdicial pro- 
 ceediniT. 
 
 Of I\'rjiir>/ (hkJ Subornation of Perjury, [rook v. 
 
 or iiiiulv (itciicy, or a mistake of" tlic true state of the fjucstion, it 
 cannot be considered to amount to v<jluntary and corrupt per- 
 jury. {,!) 
 
 It lias been said that no oath will amount to perjury unless it 
 1)C sworn ab.s(^lutely and directly, and, therefore, that he who 
 swears a thing according as he thinks, remcmhers, or believes, can- 
 not, in respect of .such an oath, be found guilty of perjury, (e) 
 But De Grey, C. J., appears to have laid down a different doc- 
 trine. (/) And Lord Mansfield, C. J., is stated to liavc .said, 'It 
 is certainly true that a man may be indicted for perjury in swear- 
 ing that he believes a fact to be true which he must know to be 
 false.' {g) It is further .said that, upon this ((uestion being agitated 
 in the Court of Common Pleas, all the judges were unanimous 
 that belief was to be considered as an absolute term, and that an 
 indictment might be supported upon such a statement, (li) 
 
 An indictment for perjury alh.'ged that the defendant swore that 
 ho fhovjjJtt that certain words written in red ink were not his 
 writing ; whereas the defendant, when he so deposed, tJioiujht that 
 the said words were his writing; and the Court of Queen's Bench 
 held that the a.ssignment was sufficient. If a witness swore that 
 he thought a certain fact took place, it might be difficult indeed 
 to show that he committed wilful perjury. But it was certainly 
 possible, and the averment was as properly a subject of perjury as 
 any other. (/) 
 
 The imjjortant requisites in a case of perjury appear to be 
 these : tJie false oath must be taken in a judicial 'proceeding, be- 
 fore a competent jurisdiction, and it must be material to the 
 question depending, (j) 
 
 With rcsftect to the falsity of the oath it should be observed, 
 that it has been considered not to be material whether the fact, 
 which is sw^orn, be in itself true or false ; for, howsoever the thing 
 sw^orn may happen to prove agreeable to the truth, yet, if it were 
 not known to be so by him who swears to it, his offence is alto- 
 gether as great as if it had been false, inasmuch as he wilfully 
 swears that he knows a thin^ to be true which at the same time 
 he knows nothing of, and impudently endeavours to induce those 
 before whom he swears to jiroceed upon the credit of a deposition 
 which any stranger might make as well as he. (/.•) 
 
 The oath must be taken either in a judicial proceeding, or in 
 some other public proceeding of the like nature, wherein the 
 King's honour or interest are concerned ; as, before commissioners 
 appointed by the King to inquire of the forfeitures of his tenants, 
 or of defective titles wanting the supply of the King's patents. 
 But it is not material Avhether the Court, in which a false oath is 
 taken, be a court of record or not, or whether it be a court of 
 
 (d) See 1 Hawk. 1\ C. c. 69, s. 2. 
 
 (e) 3 Inst. 166. 
 
 (,f) Miller's case, 3 Wils. 427. 2 
 Black Rep. 881. 
 
 ((/) Tedlcv's case, 1 Leach, 325. 
 
 (h) Anon. C. P. Mich. T. 17S0. 1 
 Hawk. P. C. c. 69, s. 7, note {a), p. 88 
 (ed. 1795). See Kex v. Crespigny, 1 Esp. 
 280. Lord Kenyon, C. J. 
 
 (i) Reg. V. Sohlesinaer, 10 Q. B. 670. 
 
 U ) By Lord ilauslield, C. J., in Kex 
 
 V. Aylett, 1 T. R. 69. 
 
 {k) 1 Hawk. P. C. c. 69, s. 6. Rex v. 
 Edwards, cor. Adams, B., Shrewsbury 
 Lent Ass. 1764 ; and subsequently con- 
 sidered of by the judges, MS. And see 
 per Lawrence, J., in Kex r. Mawbev, 6 
 T. K. 619. 2 Rolle Abr. Indictment 
 (E), pi. 5, p. 77. Allen r. "Westley, 
 Hetley, 97. Gurney's case, 3 Inst. 166. 
 See Keg. r. Newton, 1 C. & K. 469, for 
 a count framed to meet such a case.
 
 CHAP. I.] 
 
 Of the Oath. 
 
 commou law, or a court of equity, or civil law, &c., or whether 
 the oath be taken in the face of the Court, or out of it before per- 
 sons authorized to examine a matter depending in it, as, before the 
 sheriff on a writ of inquir}^, &c., or whether it be taken in relation 
 to the merits of a cause, or in a collateral matter, as, where one 
 who offers himself to be bail for another, swears that his substance 
 is greater than it is. (V) But neither a false oath in a mere 
 private matter, as in making a bai'gain, &c., nor the breach of a 
 promissory oath, whether public or private, is punishable as per- 
 jury, {m) 
 
 Much doubt formerly prevailed in certain cases as to the power 
 to administer an oath ; but this doubt is, to a great extent, 
 removed by the Act to Amend the Law of Evidence, 14 & 15 
 Vict. c. 99, s. 16, by which 'every court, judge, justice, officer, 
 commissioner, arbitrator, [n) or other person now or hereafter 
 having by law or by consent of parties, authority to hear, receive, 
 and examine evidence, is hereby empowered to administer an oath 
 to all such witnesses as are legally called before them respec- 
 tively.' 
 
 It was at one time doubted whether a false oath taken in 
 Doctors' Commons, for the purpose of obtaining a marriage license, 
 amounts to perjury. But it has been since decided that a false 
 oath before a surrogate, taken in order to procure a marriage 
 license, will not support a prosecution for perjury ; and, further, 
 that if the indictment only charges the taking the false oath with- 
 out stating that it was for the purpose of procuring a license, or 
 that a license was procured thereby, the party cannot be punished 
 thereupon as for a misdemeanor. The indictment stated that the 
 prisoner, being minded to procure a marriage between himself and 
 A. B., went before a surrogate, and was sworn to an affidavit in 
 writing, that the said A. B. had been residing four weeks in the 
 parish of S., whereas she had not, and so he had committed per- 
 jury ; and the indictment had all apt allegations of an indictment 
 for perjury. But a case being reserved upon the question whether 
 on such an affidavit the party could be prosecuted for perjury, and 
 if not, whether upon this indictment any offence was charged, the 
 judges were unanimous that upon an oath before a surrogate, per- 
 jury could not be assigned ; and that as this indictment did not 
 charge that the defendant took the oath to procure a license, or 
 that he did procure one, no punishment could be inflicted, and he 
 was therefore pardoned, (o) 
 
 The third count of an indictment stated that W. James Avas a 
 surrogate having authority to grant licenses for marriages, and 
 that the defendant applied to the said W. James to grant a 
 license for the solemnization of a marriage between J. Baker and 
 S. Fry, and that the defendant, unlawfully intending to obtain 
 such license for the said marriage in fraud of the 4 Geo. 4, c. 76, 
 
 Any court, 
 &c., may ad- 
 minister aa 
 oath. 
 
 (l) 1 Hawk. V. C. c. 69, s. 3. Bac. 
 Abr. tit. Pcrjuru (A). See K. v. Cross- 
 ley, 7 T. K. 315^ 
 
 (m) Id. Ibid. 
 
 (71) R. V. Hallett, 2 Don. C. C. 237, a 
 case bt'forc this Act. 
 
 (o) Re.\ r. Forster, IMS. Bayloy, J., 
 and E. & II. 450. Sec Alexander's ease, 
 1 Leach, 63. The point was submitted 
 
 Oath to pro- 
 cure a mar- 
 riajje license. 
 
 If a person 
 make a false 
 statement on 
 oath before a 
 surrogate for 
 the purpose of 
 improperly 
 obtaining a 
 
 to the judges, and several times agitated ; 
 but the result was not communicated, a.s 
 the prisoner died in Newgate. Wood- 
 man's case, 1 Leach, 64, note {a). The 
 jioint ajipcars to have been submitted 
 also in this case to the consideration of 
 the twelve Judges ; but their opinion was 
 not publielv communicated. Bee 3 Chit. 
 Ci-im. L. 713. 
 
 B 2
 
 4 Of I'cij'iri) <(t Common Ldw. [book v. 
 
 iniriinn.! li- I'or lln- |)ui|»iim- (iI ()l)t uiiiiii;,' siicli li(;L!iiso, l)cfoie tlio.s:ii<l \V. James 
 lunno, hi- is ^j„,|^ j,j^ CDipural oath upon the Holy Gospel of Clotl, and that the 
 r.'.nlln,m Kw iK'l'.MKhint l)ein<' so sworn as aforesai<l before the said W. James 
 iiiiwionicanor. as siich surro;,^•Ue (he the said W. James haying competent 
 aiithorilv, as such surrogate, to administer the said oath) did, for 
 the purpose of thereby obtaining such license for the marriage of 
 tiie said J. Baker and S. Fry, falsely, corruptly, &c., swear, &:c., 
 that the name of him, the defendant, was J. Baker, and that he 
 w;is one of the parties for whose marriage a license was then 
 applied for, and that he was a yeoman and widower, and that the 
 said S. Fry had ha<l her usual place of al^ode within the parisli of 
 W. in the county of S. for the space of fifteen days then last past. 
 The count then negatived the matter sworn in the usual manner. 
 By means of which false oath the defendant did then obtain from 
 tlic said W. James, so being such surrogate, a license for the 
 solemnization of a marriage betvveen the said J. Baker and 
 S. Fry. The prisoner having been convicted, upon a case re- 
 serveil, it was contended that this count charged no offence. That 
 a surrogate had no auth(jrity to administer an oath, and at all 
 events not this oath, to the defendant. That the count did not 
 aver that a written license was obtained, or the marriage celebrated 
 by means of such license. But it was held that the count charged 
 a misdemeanor. It distinctly averred that the prisoner swore 
 falsely as to S. Fry ; and any one material fact falsely sworn to is 
 sufKcient to support the charge. Then the only que.stion Avas as 
 to the surrogate's power to administer the oath ; not such an oath 
 as will support an indictment for perjury, but as will make a 
 party guilty of a misdemeanor. By the canon law the surrogate 
 had such power, and the 4 Geo. 4, c. 76, seems to assume that 
 power. To make a false oath in order to procure a marriage 
 license from an officer empowered to grant such license is a 
 misdemeanor ; because it is a step towards the accomplishment of 
 a misdemeanor. The actual celebration of the marriage is imma- 
 terial. Anything essentially connected with marriage is a matter 
 of public concern, and therefore may involve criminal conse- 
 quences. (^>) 
 Futiior of an jjj Q^g ^ase the question whether a father of an illegitimate 
 
 cblfr""' ° child was included in the 4 Geo. 4, c. 76, s. 16, was raised on an 
 indictment against the prisoner for falsely swearing before a surro- 
 gate that the father had given his consent to the marriage of his 
 daughter, but not decided, (q) 
 
 (?)) Reg. r. Chapman, 1 Den. C. C. 432, dictmenh W. v. Hodj;kiss, 39 L. J. 
 
 18 L. J. M. C. 152. 2 C. & K. 846. M. C. 14, 1 L. K. V. C. R. 212. 
 
 Anonymous cited Ly the C. J. of the (17) Keg. v. Fairlie, 9 Cox, C. C. 209. 
 
 K.B.I Yiiitr. 370. The prisoner was Thedefendantwasacquitted on the ground 
 
 indicted for wilful and cornii>t perjury in of a variance. The indictnient alleged that 
 
 making a false allidavit befoie a comniis- the i)risoner, intending to procure a niar- 
 
 sioner for taking oaths in the Court of riiige to be solemnized between himself 
 
 Queen's Hench, for the purpose of getting and E. A. E., she being under the age of 
 
 n bill of sale filed under the Bills of Sale twenty-one years, without the consent of 
 
 Act, 1854. Held, a misdemeanor, the natural and lawful father of the said 
 
 though not wilful and corrupt per- E. A. E., to wit, without the consent of 
 
 jury. Held also, that the conclu- G. E., lie being the person whose consent 
 
 sion of an indictment for i>er jury, "that wasby law required before the license was 
 
 so the defendant did commit wilful and granted, falsely swore that G. E., the 
 
 corrupt perjury " might be rejected as natuml and lawful father of the said 
 
 surplusage, and a conviction for the mis- minor, was consenting. The affidavit 
 
 demeanor was riglit upon such an iu- sworn by the prisoner contained the
 
 CKAP. I.J 
 
 Jurisdiction to fake the Oath 
 
 Before the C. L. P. Act, 1852, if an action had abated by the 
 death of a co-pLaintiff, and no suggestion had been entered ac- 
 cording to the 8 & 9 Will. 3, c. 11, s. 6, a trial was extra-judicial, 
 and no perjury could be assigned upon any false evidence given at 
 such trial, (r) 
 
 The oath must be taken before a competent jurisdiction, that is, 
 before some person or persons lawfully authorized to administer 
 it. So that a false oath taken in a court of requests, in a matter 
 concerning lands, has been holden not to be indictable, that court 
 having no jurisdiction in such cases, (s) And it seems clear, 
 that no oath wdiatsoever taken before persons acting merely in a 
 private capacity, or before those who take upon them to administer 
 oaths of a public nature, without legal authority for their so 
 doing, or before those who are legally authorized to administer 
 some kinds of oaths, but not those which happen to be taken 
 before them, or even before those who take upon them to adminis- 
 ter justice by virtue of an authority seemingly colourable, but in 
 truth unwarrantable and merely void, can ever amount to per- 
 juries in the eye of the law, because they are of no manner of 
 force, but are altogether idle, (t) But a false oath taken before 
 commissioners, whose commission at the time is in strictness 
 determined by the demise of the King, is perjury, if taken before 
 such time as the commissioners had notice of the demise ; for it 
 would be of the utmost ill consequence in such case to make their 
 proceedings wholly void, (u) 
 
 By 27 & 28 Vict. c. 19, entitled ' An Act to make provision for the 
 discipline of the Navy,' s. 63, every person wdio, upon any examina- 
 tion upon oath or upon affirmation before any court-martial held 
 in pursuance of this Act, shall wilfully and corruptly give false 
 evidence, shall be deemed guilty of wilful and corrupt perjury, 
 and every such offence, wheresoever committed, shall be triable 
 and punishable in England ; and where any s\ich offence com- 
 mitted out of England is tried in England, all statutes and laws, 
 applicable to cases of perjury, shall apply to the case. 
 
 Wilful and corrupt false swearing before a local marine board, 
 duly and lawfully appointed and constituted, under 17 & 18 Vict. 
 c. 104, upon a matter material to an inquiry then being lawfully 
 investigated by them, under 25 & 26 Vict. c. 63, s. 23, is per- 
 jury, {v) 
 
 By 38 & 39 Vict. c. 35 (The Public Health Act, 1875), s. 263, 
 any person who on any examination on oath, under any of the 
 jirovisions of this Act, wilfully and corruptly gives false evidence, 
 shall be liable to the penalties inflicted on persons guilty of wilful 
 and corrupt perjury. 
 
 By 32 & 33 Vict. c. 62 (The Debtors' Act, 18G9), s. 14, if any 
 
 statement set out in the indictment ; but 
 it appeared that the girl wns tlie illegiti- 
 mate daugliter of G. E., who had not 
 given his consent to her marriage. The 
 llccorder held that, as the indictment had 
 described G. E. as the natural and lawful 
 father, and the evidence showed that 
 E. A. E. had no natural and Ir.wful 
 father, the prisoner nuust be acquitted. 
 
 ('/•) Re.x V. Cohen, 1 Stark. K. oil. 
 See now the 15 & 16 Yict. c. 7(3, s. 135. 
 
 (s) Buxton r. Gouch, 3 Salk. 2(30, 
 
 Death of a co- 
 plaintiff. 
 
 Oath must 
 be taken be- 
 fore a compe- 
 tent jurisdic- 
 tion. 
 
 Court-martial 
 under Act for 
 discii>linc of 
 the Navy. 
 
 (t) 1 Hawk. P. C. c. 69, s. 4, and the 
 authorities there cited ; 4 Black. Com. 
 137. See the 5 & G Will. 4, c. 62, s. 13, 
 post, p. 30. 
 
 in) 1 Hawk. P. C. c. 69, s. 4. Bac. 
 Ab. tit. Pcrjurij (A). 
 
 (v) R. r. Tomlinson, 36 L. J. M. 0. 
 41 ; 1 L. R. C. C. C. 49. It seems that 
 the taking of a false oath before a court- 
 martial is perjury at common law, R. r. 
 Heane, 4 B. & S. 947 ; 33 L. J. M. C. 
 115. 
 
 Public Health 
 Act. 
 
 Debtors' Act, 
 1869.
 
 of J'erjiirij (It Common Law. 
 
 [book v. 
 
 For jury iiiny 
 !><< cniiiiiiittcil 
 on n coiiiiiii.M- 
 fiioii to ox- 
 niiiiiio wit- 
 ni'SNcs issiu'il 
 In-foro i.s.suo is 
 
 joined. 
 
 A master ex- 
 traordinary in 
 cliancory had 
 no autliority 
 to administer 
 nn oath in 
 matters in the 
 court of ad- 
 miralty. 
 
 Jurisdiction of 
 the insolvent 
 (Kl.tors 
 court after 
 the filing of a 
 petition. 
 
 Authority to 
 t.ike an ntli- 
 davit of debt 
 to make .1 
 trader a bank- 
 rupt. 
 
 civtlitor iti miy biiiikruptcy or li(|ui<l;iti(ju l)y arrangement or coni- 
 j>().siti(in willi creditors in pursuance of tlio Jjunkrnptcy Act, IcSG!), 
 wilfully ami with intent to defraud makes any false claim, or any 
 jtroof, declaration, or statement of account which is untrue in any 
 material particular, he sliall be guilty of a misdemeanor, punish- 
 ahje with iinj)risoninent not exceeding one year, with or without 
 hard lahour. See vol. 2, p. 44-3. 
 
 Where after a writ had issued, but before tlie appearance of tlie 
 defendant, a conunission was Lssucd to examine awitnes.s on behalf 
 of the plaintiff, and a rule had been obtained to rescind the order 
 for the commission, it was urged in support of the rule that for a 
 commission to go the proceedings should be in such a state that 
 perjtn-y could be assigned on the dep(jsitions ; and that cotdd not 
 be without an issue joined, to wliich the matter sworn would be 
 material. Lord Cainpl)ell, C. J., ' I do not agree that there could 
 be no indictment for perjury where the examination of the witness 
 lias taken place before issue joined, if his evidence be material to 
 the issue afterwards joined. {vS) 
 
 A master extraordinary in chancery had no authority, by virtue 
 of his commission, to administer an oath in matters in the court of 
 admiralty, and therefore an indictment fur perjury cannot be sup- 
 ported on an oath so administered, {x) But any person who made 
 such an affidavit, with a view to its being received by the court of 
 admiralt}'^, knowing at the same time it was false, was guilty of a 
 misdemeanor at common law. {y) 
 
 An indictment for perjury committed before the insolvent court 
 held under the noAv repealed Acts .5 & 6 Yict. c. 116, and 7 & 8 
 Vict. c. f)G, alleged that notice of the insolvent's petition was in- 
 serted in the ' London Gazette,' and thereby a public sitting was 
 appointed for the first examination of the insolvent, and that that 
 sitting was adjourned. No evidence was given in support of the.se 
 allegations, although the perjury was alleged to have been com- 
 mitted on tlie day to which the sitting was adjourned; the filing 
 of the insolvent's petition, however, was proved ; and upon a 
 case reserved, it was held that upon the filing of the petition the 
 Court had jurisdiction to institute the examination upon which 
 the prisoner swore falsely ; and as the Insolvent Debtors Court 
 was a court of record, it must be presumed that its sittings in a 
 matter within its jurisdiction Avere lawfully and rightfully holden ; 
 and as the indictment contained the general allegation that the 
 Court had competent power to administer the oath to the prisoner, 
 that was sufficient under the 14 ilv: 15 Vict. c. 100, s. 20, and the 
 allegations, of which no jDroof was given, might be rejected as sur- 
 plusage, {z) 
 
 Where an affidavit of debt was sworn under the 1 iV: 2 Vict, 
 c. 110, s. 8, with a view to make a trader a bankrupt, unless he 
 paid or gave security, &c., perjury might be assigned upon it, not- 
 withstanding the alterations introduced by the 5 ».l- (3 Vict. c. 1*22, 
 as to this mode of proceeding against a trader : and such an affi- 
 davit fell within the .5 & 6 Vict. c. 122, s. 67, and therefore might 
 
 (ir) Finney r. Beesley, 20 L. J. Q. B. 
 3J>6, 17 Q. B. 86. 
 
 (x) Reg. r. Stone, Dears. C. C. 251 ; 23 
 L. J. M. C. 14. 
 
 (u) Per rollock, C. B., and Parke, B., 
 ibid. 
 
 (--) Reg. r. "Westley, Bell, C. C. 193, 
 29 L. J. M. C. 35.
 
 CHAP. I.] Jurisdiction to take, the Oath. 
 
 be sworn before a registrar or deputy registrar of the court of 
 bankruptcy. («) 
 
 Where an unmarried woman obtained judgment in a county 
 court against the prisoner, and obtained a judgment summons 
 against him under the City of London Small Debts Act, 15 e*c 16 
 Vict. c. 77, and on the hearing of the summons it appeared that 
 the woman had married after she had recovered judgment in the 
 county court, and thereupon the judge of the London court 
 amended the summons by adding the name of the husband, and 
 the prisoner was charged with perjury in his examination before 
 the judge of the London court after the said amendment ; it was 
 held that the judge had no power to make the amendment, and 
 consequently the false swearing Avas in a cause which had no 
 existence and coram non judice (h) 
 
 A person may be indicted for perjury who gives false evidence 
 before a grand jury when examined as a witness before them upon 
 a bill of indictment, and any person, not being a grand juryman, 
 who hears the evidence given before the grand jury, is competent 
 to prove the evidence so given, (c) 
 
 Perjury was alleged to have been committed in taking a false 
 oath on a material issue at the hearing of a county coroner's inqui- 
 sition held before a deputy coroner in the absence of the coroner. 
 The 6 & 7 Vict. c. 83, s. 1, gives a county coroner power to appoint 
 a deputy, provided that no such deputy shall act for any coroner 
 except during the illness of the said coroner, or during his absence 
 from any lawful or reasonable cause. On the trial of the indict- 
 ment for jDcrjury, the prosecution gave evidence that the coroner, 
 who was an attorney in practice, and registrar of the county 
 court, and held other offices, was absent fi-om his home and 
 place of business in order to take a Vacation, such absence and 
 vacation and air and exercise having been recommended to him 
 by his medical advisers as necessary for his health, which 
 had become permanently impaired from an operation which he had 
 undergone. He spent three or four days in every week, shooting. 
 The vacation for registrars was appointed at that period of the 
 year, and that was the only time of the year during which he ob- 
 tained a vacation. The judge held at the trial, that there was 
 lawful or reasonable cause for the absence of the coroner, and the 
 prisoner was found guilty. Held, that the question of lawful or 
 reasonable cause was to be decided by the judge and not by the 
 jury, aiid that there was some evidence upon which the judge 
 could so decide, and that the conviction was right. (cZ) 
 
 The rule of law is that, unless a statute requires it, an informa- 
 tion before a magistrate need not be on oath or even in writing, (e) 
 
 A judge of 
 the London 
 county court 
 lias no juris- 
 diction where 
 a single wo- 
 man has re- 
 covered judg- 
 ment, and then 
 marries, to 
 add the hus- 
 band's name. 
 
 Evidence 
 before a grand 
 
 juiy- 
 
 Deputy 
 coroner. 
 
 Unless a sta- 
 tute requires 
 it, an informn- 
 
 (a) Reg. V. Dunn, 12 Q. B. 1026. 
 
 (b) ]^eg. V. Pearce, 3 B. & S. 631 ; 9 
 Cox, C. C. 258. 
 
 ('■) Reg. V. Huglies, 1 C. & K. 519, 
 Tindal, C. J. See post, as to whether 
 a grand juryman can give evidence of 
 ■what passes in the grancl jury room. 
 
 (d) Reg. V. Johnson, 42'L. J. M. 0. 41. 
 
 (c) Per Parke, B. Reg. v. Millard, 
 Dears. C. C. ll)(). See R. r. Shaw, \ii 
 L. J. M. C. 169, where per M. Smith, J., 
 ' Unless it is reipiired by statute there 
 
 need not be an information in writing 
 nor a summons in writing. Ujion a war- 
 rant issued by a justice uiuler 16 & 17 
 Vict. c. 119, s. 11, (An Act for the Su]>- 
 pression of Betting Houses), founded 
 upon an information that a certain house 
 was used as a common gaming house 
 within the meaning of the 8 «fe 9 Vict, 
 c. 109, (An Art to amend the law con- 
 cerning gaming and wagers) ; the house 
 was searched anil the appellant andollier.s 
 apprehended and brought before tho
 
 8 ^yP*'Ki'^''!l "^ Common Law. [book v. 
 
 lion u-foro Wlicrc tlid'cforc an information, hut not on oath, was laid hefore 
 
 jiiHii.cM iieo<l j^ jiistico awiiist a ixMson for wilful damanrc to a carriafjc, and the 
 
 wriiiiiK or on prisoner was indicted for perjury conunitted on tlio hearinj^ of that 
 
 oiiih. information, it was ohjectcd that hy the 7 & 8 Geo. 4. c. ."^O, 
 
 s. .*{(), {ec) the information ought to have hccn on oath ; hut it was 
 
 held that that section did not render an oath necessary in all cases, 
 
 hut was a cumulative provision in order to compel the appearance 
 
 of the party charged, or to hear the case ex parte if he did not 
 
 appear, and therefore the justices had jurisdiction. (/) 
 
 Jii-iit'os li.yo Under the 7 it H Vict. c. 101, .?. 2, an application for an order in 
 
 only jiin.sdn- l);vstarily is to ho made to the justices actirifj for the petty sessional 
 
 lion williin ....-'. 1 ■ I -1 ii f • 1 . 1 Li 1 
 
 the .listri.t division m wliicli the motlicr may reside; and they have no 
 
 wiu-ro the jurisdiction to entertain such an application, unless she does reside 
 
 inoila-r ro.si.lcs ^yi(i,i,i their division, and consequently, if she do not so reside, 
 
 to niiike a las- . . ..,i ^ ^ '' ^• • , \ 
 
 tinly order. P^-'iJu^T cannot DC Committed on such an application, ((j) 
 If a i-crson Upou an indictment for perjury alleged to have been committed 
 
 ( liiirt;.-.! witli hy the prisoner upon the hearing of an apyjlication hy Martha 
 
 Mi'*^ '^of° Humphreys for an order upon him for the maintenance of her has- 
 
 l.:xst.-\nl .ip- Un''\ child, it appeared that the summons was issued by a magis- 
 
 i.c;u-8 before tratc Oil the personal application of M. Humphreys, who stated, but 
 
 ami th^*-"i!c.^r "'^^ ^^^ °''^^'^' ^^^^^ ^^^^ ^^^^ hecM delivered of a bastard child more 
 
 t'lo case with- than twelve months previous, and that money had been paid by 
 
 out any ob- the prisoner for its maintenance within twelve months of its birth. 
 
 ^ri*rt""ir '"^ '^^^^ summons alleged that the prisoner had ' paid money for its 
 
 .icfc-t in the maintenance Avithin twelve mouths after its birth,' instead of 
 
 .Miminons, or Stating that jiroof thereof had been made. The prisoner appeared 
 
 in tho mode personally in answer thereto. He was also assisted by an attorney. 
 
 ot isauin,' it, V 1 • i.- 1 /• 1 1- "^ 1 • 1 i" 
 
 is waived. -'^^ ol^jectiou was made to any of the proceedings on which the 
 
 summons was founded, and the case was gone into on the merits 
 before the stipendiary magistrate, who examined M. Humphreys in 
 support of the application, who proved the payment of money as 
 alleged, and the prisoner in answer thereto, who swore he had 
 never paid her any money. It was objected that, as tlierc had been 
 no proof on oath of money having been paid for the maintenance 
 of the child within twelve months from its birth before the sum- 
 mons was issued, the magistrate had no jurisdiction to hear the 
 
 petty sessions, when the appellant was (/) Ecg. v. MillaiJ, Dears. C. C. 166. 
 <liarr;ea with haying the management of (;/) Reg. v. Hughes, D. & B. C". C. 1S8. 
 a room in the said house for the purpose In this case the mother was delivered in 
 of betting witli persons resorting thereto, ilarch, and resided with her parents till 
 njion horse races, contrary to the statute. Xovember. She then went and lodged at 
 No information charging such offence, or D. in another petty sessional division for 
 summons embodying such information three weeks, and then applied to the jus- 
 had been issued or served. Held, by tiie tices of that division. Her lodging thei-c 
 majority of the Court (C'leasby, B.,"and. was not for any improper or fraudulent 
 Crove, 5.), Field J., dissenting, that the purpose, but because the justices met in 
 want of such infoimation or summons the town, and it was more convenient for 
 rendered the i)roceedings on the hearing her than to go a distance from her pa- 
 invalid, and that the conviction thereon routs' house to the justices' meeting of 
 must l>e quashed. Held, further, tliat a the division in whichher parents resided, 
 month's notice of the taking of such pro- After the order she went into service 
 cecdiugs was not necessary before laving without returning home. The jurv found 
 an information under 16 & 17 Vict, c that she had no other home than £)., and 
 119, s. 17. Blake r. Beech, 45 L. J. that she was residing at D., if in point 
 / V n^^' ^^ ^'"'^^' ^'^^ could under the circumstances 
 (fc) Tlie -24 * 2;-) Vict. c. 07, s. 62, ro- be consi.lered to be so. It was held that 
 enacts sec 30 of the former Act. Sec the the justices had jurisdiction to make the 
 clause in the Appendix. order, as her residence was at D.
 
 CHAP. I.] 
 
 Jurisdiction to taJce the Oath. 
 
 case ; but, upon a case reserved, it was held that the prisoner had 
 waived the objection. The proceeding against the putative father 
 is not a proceeding in 'pcenam to punish for a crime, but merely 
 to impose a pecuniary obligation, and the summons is mere pro- 
 cess to bring the defendant into court in a civil suit. According 
 to strict regularity, before the summons issued there ouglit to have 
 been evidence on oath of the payment of the money, although it is 
 not expressly required by the statute to Ite on oath, as in the case 
 where the complaint is made before the birth of the child. Fur- 
 ther, it would have been proper that the summons should have 
 been in the form given by the statute ; but supposing that, if the 
 prisoner had not appeared, the petty sessions could not have law- 
 fully proceeded to hear evidence of the paternity ; or that, if he 
 had appeared, and objected to the regularity of the summons, the 
 objection ought to have prevailed ; yet when he actuall}' appeared, 
 and, instead of objecting to the regularity of the summons, asked 
 the Court to give judgment in his favour on the merits, and ten- 
 dered evidence to absolve himself from liability, he waived any 
 irregularity there might be in the process, and when he had thus 
 submitted himself to the jurisdiction of the Court, the Court had 
 jurisdiction to hear and decide the case, ill) 
 
 Upon an indictment for perjury, it appeared that the perjury had 
 been committed upon the hearing of a second application for a 
 bastardy order, a former application having been heard by the 
 magistrates and dismissed upon the merits. It was contended that 
 the magistrates were functi officio after the first application had 
 been dismissed on the merits, and had no jurisdiction to entertain 
 the second application. But, upon a case reserved after conviction, 
 the judges were unanimously of opinion that the magistrates had 
 jurisdiction to hear the second application and administer an oath. 
 The Court of Queen's Bench had decided that one inquiry on the 
 merits did not make the matter a res jiulicata ; but even if the 
 previous dismissal were a defence, still the magistrates on the 
 second application had jurisdiction to hear the application and 
 administer an oath, (i) 
 
 An indictment alleged that T. Home was duly licensed to keep 
 a beer-house, and that an information had been laid against him 
 for that he, being duly licensed to keep a beer-house, had it open 
 unlawfully on the morning of Sunda}"-, the 6th of February, 18.53, 
 and charged the defendant with falsely swearing that he had not 
 been supplied with beer in the house on that morning. Home's 
 license was for a year, commencing on the 11th of May, 1S.").'3, but 
 Home was keeping the beer-house on the 6tli of February previ- 
 ously. It was objected that the averment that Home was duly 
 licensed on the Gth of February was not proved, and that if he was 
 not so licensed, the justices had no jurisdiction to hear the infor- 
 mation. But Crompton, J., held that the justices had jurisdiction 
 generally over the subject of keeping houses for the sale of beer 
 
 (/O Keg. V. Berry, Bell, C. C. 46, 
 Martin, ]>., dissenticnte. Tlie applica- 
 tion for the bastardy order was made 
 \inder the 7 & 8 A'ict. c. 101, and the 8 & 
 9 Vict. c. 110 ; R. v. Fletcher, L. R. 1 
 C. C. R. 320; 40 L. J. M. C. 123. See 
 R. V. Simraonds, Bell, C. C. 168 ; 28 
 
 L. J. M. C. 183 ; Reg. v. Wiltshire, 12 Ad. 
 &E. 793 ; R. v. Smith, 11 Cox, C". C. 
 10 ; R. r. C'hiigg. 11 Cox, C. ('. 558. 
 
 (/^ Reg. V. Cooke, 2 Den. C. C. R. 462 ; 
 21 L. J. I^[. C. 136. See Reg. v. Brisbj', 
 1 Den. C. C. 416. Vol. 1, p. 562. 
 
 Justices have 
 jurisdiction to 
 hear a second 
 application in 
 a case of 
 bastardy. 
 
 Justices have 
 a general 
 jurisdiction 
 over public- 
 houses.
 
 10 
 
 Ma.slor and 
 Apprentire.s 
 Act. 
 
 Inforniatiiin 
 under tlie 
 (Janic Act 
 not iiro|>crIy 
 vcrilicd. 
 
 Tlie oatli must 
 I'c material to 
 (lie (|ucstiou 
 dcpcLding. 
 
 If it is cir- 
 c u ni Stan ti ally 
 matcri.il, it is 
 sutficient. 
 
 Of Per/ II ri/ dt Common Lmv. [fjook v. 
 
 nml other liquor.s opoti on Sunday ; and tliat as, in order to estab- 
 lish an oflence, it was not necessary to prove that the keeper of 
 i\\v, hous(; was licensed, what was sworn on the subject of Home's 
 krc|>iii^f tli(^ house open brour,dit the case within the jurisdiction of 
 the justices, even if it turned out that lie was not licensed at the 
 tinu'. (J) 
 
 By 4 (Jeo. 4, c. '.H, s. 2, all complaints wliich shall arise between 
 masters or mistresses and their appreritices, as to wages, &c., may 
 be heard and determined before a justice of the peace. After an 
 apprenticeship was over, the former apprentice summoned his late 
 ma-ster under this Act for wages alleged to be unpaid, and on the 
 homing swore falsely. It was held, that tliis was perjury, inas- 
 much as the magistrate had, at all events, jurisdiction to determine 
 whether the relation of apprenticeship continued or not. (/c) 
 
 The () & 7 Will. 4, c. 65, s. 9, renders it necessary tliat an infor- 
 mation under the 1 Will. 4, c. 32, the Game Act, should be veri- 
 fied on the oath of a credible witness before any proceeding is 
 taken upon it for summoning the party accused or compelling his 
 appearance, and if this course has not been adopted, the justices 
 have no juri.sdiction to hear the case ; and, consequently, a 
 person giving false evidence on such an occasion is not guilty of 
 perjury. (?) 
 
 The oath must be material to the question depending : for if it 
 be wholly foreign from the purpose, or altogether immaterial, and 
 neither in any way pertinent to the matter in question, nor tend- 
 ing to aggravate or extenuate the damages, nor likely to induce 
 the jury to give the readier credit to the substantial part of the 
 evidence, it cannot amount to perjury, because it is wholly idle and 
 insignificant ; as, where a witness introduces his evidence, with an 
 impertinent preamble of a story concerning previous facts, not at 
 all relating to what is material, and is guilty of a falsity as to such 
 facts, (m) 
 
 If it appear plainly tliat the scope of the question to a witness 
 was to sift him as to his knowledge of the substance, by examining 
 him strictly concerning the circumstances, and he gave a parti- 
 cular and distinct account of the circum.stances which afterwards 
 appears to be false ; it seems he is guilty of perjury, inasmuch as 
 nothing can be more apt to incline a jury to give credit to the sub- 
 stantial part of a man's evidence, than his appearing to have an 
 exact and particular knowledge of all the circumstances relating to 
 it. {n) And it is spoken of as a reasonable opinion, that a witness 
 may be guilty of perjury in respect of a false oath concerning a mere 
 circumstance, if such oath have a plain tendency to corroborate the 
 
 (;) Kog. t'. Kirton, 6 Cox, C. C. 393. 
 C'romptoii, J., refused to reserve the 
 poiut. 
 
 ik) R. V. Sanders, 1 T.. R. C. C. R. 75. 
 Sec li. V. Bacon, 11 Vox, C. C. 540, a 
 case where it was held that the magis- 
 trate had no jurisdiction, and eouse- 
 • luently that the prisoner had not com- 
 mitted the otTence of perjury. 
 
 {!) Reg. V. Scottou, 5 Q. 15. 403. See 
 R. I'. Western, 10 Cox, C. C. 93. 
 
 (»t) Rex r. Griepe, 1 Lord Rayni. 256. 
 Bac. Ab. tit, Fcrjun/ (A). See 2 Roll. 
 41, 42, 369. Hetl. 97. 1 Hawk. P. C. 
 
 c. 69, s. 8. 
 
 («) See 1 Hawk. P. C. c. 69, s. 8. 
 Upon an indictment for robbery com- 
 mitted on the 13th of April, between 
 eight and ten o'clock at night, a witness 
 for the prisoner swore, not only that the 
 prisoner was at homo at that time, but 
 in answer to the judge said, that the jiri- 
 souer had lived in the same house for the 
 two years previous, and that during the 
 whole of that time he had not been ab- 
 sent from the same house for more than 
 three nights together. The last two 
 statements were proved to be false, as the
 
 CHAP. I.] 
 
 Oath must he material. 
 
 11 
 
 more material part of the evidence ; as if, in trespass for spoiling 
 the plaintiff's close with the defendant's sheep, a witness swears 
 that he saw such a number of the defendant's sheep in the close ; 
 and being asked how he knew them to be the defendant's, swears 
 that he knew them by such a mark, which he knew to be the de- 
 fendant's mark, whereas, in truth, the defendant never used 
 any such mark, (o) And it appears to have been holden not to 
 be necessar}^ that it should be shown to what degree the point in 
 which a man is perjured was material to the issue, and that it will 
 be sufficient if the point were circumstantially material, {p) And 
 still less is it necessary that the evidence be sufficient for the 
 plaintiff to recover upon, since evidence may be very material, and 
 yet not full enough to prove directly the point in question, {g) 
 Where A. advanced money to B. on two distinct mortgages, upon 
 one of which the security was insufficient, and B. assigned the equity 
 of redemption in both to C, who assigned the insufficient estate 
 to an insolvent, and filed a bill against A. to redeem the other, to 
 which bill A. put in his answer, and therein denied having had 
 notice of the assignment to the insolvent; it was holden that the 
 notice was a material fact upon which perjury might be assigned, (r) 
 An indictment for perjury committed before commissioners of 
 taxes on an appeal of W. Hewatt against a surcharge for a grey- 
 hound used by him on the 24th of November, averred that it was 
 a material question whether a certain receipt produced by the pri- 
 soner on the hearing of the appeal was given to him before the 
 12th of September then last past, and that the prisoner falsely 
 swore that the receipt was given to him before the said 12th day 
 of September. At the commissioners' meeting, evidence was given 
 that Hewatt and the prisoner were coursing, on the 24th of No- 
 vember, with two greyhounds, one of which had been He watt's, who 
 had no certificate. Hewatt, in support of his appeal against a sur- 
 charge for this dog, said that the dog had been sold to the prisoner 
 long before, and called the prisoner as a witness. The prisoner 
 swore that he bought the dog on the Cth of September, and pro- 
 duced a receipt for the purchase money bearing that date. The 
 surveyor asked him whether the receipt was given at the time of 
 the sale, and he said it was not, but a few days after. On being 
 pressed, he said it was given to.him before the 12th of September. 
 The surveyor pointed out to him that the rccept bore date the 18th 
 of November, so that the prisoner must be mistaken ; but the pri- 
 soner persisted, and swore positively that it was given him before 
 the 12th of September. Officers from the stamps proved that the 
 paper, on which the receipt was written, w^as stamped on the 18th 
 of November, and could not have been issued from the stamp office 
 before that day. It was objected that the materiality of the ques- 
 tion as stated in the indictment had not been shown ; that the 
 
 prisoiipr for a ■\vholo year of the period 
 spoken to, lind been ill prison, llclil, that 
 tiie evidence so last given was material 
 to the inquiry, and the proper subjeet of 
 assignments of perjury, inasmueh as 
 those latti>r statements tended to render 
 more probable the previous statements 
 made, that tiie prisoner was at home on 
 the night of the 13th of April. K. v. 
 Tyson, 37 L. J. M. C. 7 ; 11 Cox, C. C. 
 
 It need not be 
 sufficient to 
 prove the 
 point in ques- 
 tion. 
 
 Whatever 
 
 affects the 
 credit of a 
 witness on 
 cross-exami- 
 nation is 
 material. If, 
 therefore, a 
 witness swears 
 on cross-exa- 
 mination to 
 the date of a 
 receijjt, it is 
 material, if his 
 credit would 
 be affected by 
 the fact of that 
 date being 
 false. 
 
 1. See \\. V. Naylor, 11 Cox, C. C. 13 ; 
 IJ. r. Alsop, 11 Cox, C. C. 2(54. 
 
 (<>) Bac. Ab. tit. rcrjury (A). 1 
 Hawk. r. C. c. 69, s. 8. See Keg. r. 
 Gardiner, i)ost, p. 52, et scq. 
 
 (2>) Hex V. Griepe, 1 Ld. Raym. 256 ; 
 1!. r. Muscot, 10 Mod. 105. 
 
 (v) Keg. v. Khodcs, 2 Ld. Kaym. 8S6. 
 
 (r) Kex V. P.pys, Pcake, N. P. K. 138, 
 Lord Kenyon, C. J.
 
 ]2 Oj' J^-rjiirij (il Coiiitii.nn fj'iiD. [book V. 
 
 miitcii.-il (|iu'sti(m w.'vh, wlietlKa' the dog was tlio piisoner'.s or 
 llc'watt's on tlio 2kli of November, the clay of the coursing. It 
 liail not hi-en disproved that there had been a sale of the dog on 
 the (Ith of September; and, if there was, the time of giving the 
 receipt, or even th(^ fact of any receipt having been given, was im- 
 material. 'J'he objection w;is overrided, and on its being repeated 
 on a case res(;rved, jjord Al)inger, C B., said, ''JMic whole matte-r 
 turned on the credit of tiie witness, and lie tries to support his 
 credit by false evitlencc. The receipt is to confirm his evidence, 
 and he swears it was given before the 12th, If that were true, the 
 jiroof would be decisive.' Williams, J., 'The time when this receipt 
 was given is a step in the proof.' Lord Denman, C. J., 'P]verything 
 is material which affects the credit of the witness.' Lord Abinger, 
 v. B., ' Every (piestion, in cross-examination, which goes to the 
 credit of the witness, is material. If a witness were asked, in cross- 
 examination, whether he was in sucli a place at such a time, and 
 he denied it, that would be material if it went to his credit. In the 
 present case, if they could not have contradicted the prisoner by 
 the date of the stamp, the receipt confirming his evidence would 
 have made out the case before the commissioners, (s) 
 The (lay on The prisoner was indicted for perjury before a court of requests, 
 
 wiiichasalc jjj j^ proceeding, uudcr the interpleader clause of the Act esta- 
 iiiaviV" blishing the court, to ascertain whether a certain pig, which had 
 juatcrial. been seized under an execution issued against him on the 26th of 
 
 September, had been sold by him on the 5th of August to his 
 brother. The prisoner had sworn that he had sold the pig to his 
 brother on the 5th of August, and the allegation of perjury was, 
 that the pig was not sold by the prisoner to his brother on the 
 said 5th day of August. It was contended that w'hether or not 
 the pig was sold on the 5th of August was not the material ques- 
 tion ; the material question was whether or not, at any time 
 before the issuing of execution, there had been a sale of the pig 
 by the prisoner to his brother. It was quite immaterial whether 
 the sale took place on a particular day, if it took place at some 
 time prior to the execution. Maule, J., 'I think that the ulti- 
 mate question to be decided is one thing, and yet that a material 
 question may be raised upon a matter collateral to that question. 
 I do not at all think that I can confine the law of perjury by making 
 that only perjury which is material to the only question to lie 
 tried, otherwise persons might perjure themselves with impunity. 
 It might be a material question in a case of murder what coloured 
 coat a man had on : the colour of the pig, as I put it, might be 
 most material ; for suppose a person swore that this was a black 
 pig, and another witness swore it was Avhite, it would have been 
 a material question whether the pig was black or white, although 
 the ultimate question would have been whether it was sold at 
 the time Avhen it was alleged to have been sold.' {t) 
 M.uiriality of On the hearing of an information against Robinson, under the 
 
 (a) Hfg. r. Overton, C. & il. Gy.'i. 2 wlu'tlior a rabbit found in the prisoner's 
 
 M. C. (.\ \\. 263, A.D. 1842. See this possession was a buck or doe rabbit, and 
 
 case on anotlier jwint, jwif, p. 55. numerous witnesses were called on each 
 
 {() \\cii. V. Altass, 1 Cox, C. C. 17, side, and the verdict was, 'We find it was 
 
 A.D. 1843. A case once occurred at Glou- a buck rabbit' — a case well illustrating 
 
 cester where on an indictment for steal- Sir. J. Maule's remarks, 
 ing a rabbit the question turned on
 
 CHAP. 
 
 !•] 
 
 Oath must be material. 
 
 1 Will. 4, c. 32, s. 30, fur committing a trespass in pursuit of 
 game on a close in the occupation of T. Warren, a witness having 
 proved that he saw Robinson in Warren's field, and saw him 
 commit the offence there, the prisoner swore, on behalf of Robinson, 
 that he went with Robinson into a lane adjoining the field, and 
 that Robinson shot into the field, but did not enter it, and that 
 he himself went into the field, and fetched off what Robinson 
 killed. It was contended that this evidence was not material ; 
 because Robinson was equally guilty of an offence within the 
 1 Will. 4, c. 32, s. 30, whether he Avent into the field and shot 
 there, or whether he shot from the lane, and the prisoner in his 
 company went in and brought away the game. But Williams, J., 
 held that the evidence was material, (it) 
 
 An indictment alleged that a cause of divorce or separation 
 was pending in the Court of Arche.s, which was promoted by E, 
 Kelly against her husband J. Kelly, and that J. Worley was 
 examined as a witness on behalf of E. Kelly, and that interroga- 
 tories were exhibited to Worley on behalf of J, Kelly, and that 
 Worley falsely swore that he never pas.sed by the assumed names 
 of Abbott or Johnson, and it was proved that Worley was a wit- 
 ness on the part of the wife in the suit, and that interrogatories 
 on behalf of the hu.sband, by way of cross-examination, were 
 exhibited to him, and that one of the questions put to him, with 
 the view of impeaching his credit, was * Have you not passed by 
 the name of Abbott and also of Johnson ? ' He answered, ' I never 
 passed by the assumed name of Abbott or Johnson,' He had, 
 however, for several years gone by the name of Abl)ott, and lived 
 with a woman who took that name, and two of his children by 
 her \vere christened in that name. Lord Denman, C. J., ' I 
 do not think that the evidence of materiality is sufficient. I do 
 not mean to say that a false answer given, under such circum- 
 stances as those proved, might not support a charge of perjury ; 
 but I am of opinion that in this case enough has not been shown 
 on the part of the prosecution to connect the false answer with 
 the issue on which the evidence was given. It might have been 
 material, but we cannot clearly see that it was so.' (v) 
 
 Where on a trial for rape the prosecutrix swore that she had 
 never got one Williams to write a letter for her, which was shown 
 to her, and on a trial for perjury in so swearing, it was proved 
 that she had got Williams to write a letter to the person she had 
 charged with the rape, saying, ' I will do all I can to clear you.' 
 'I should not have went to the police about the matter at all, if 
 I had not ])een jDersuaded by ' two persons whom slie named, kc. ; 
 it was held that the evidence relating to the wn'iting of this letter 
 was clearly material, (iv) 
 
 The prisoner was indicted for perjury committed by him on the 
 hearing of a summons, which lie had taken out against the 
 prosecutor before the justices at petty sessions, for using language 
 
 (u) Rerr. V. Scotton, 5 Q. B. 493, a.d. 
 1844. The question was avf^ued in the 
 Q. B., bnt not decided, tlic ease going off 
 on another point. See ante, \). 10. 
 
 {v) Reg. V. "Worley, 3 C'o.v, C. C. 535, 
 A,D. 1349, As no part of the evideiiee, 
 except the single question and answer, is 
 
 stated, it is impossible to see what this 
 decision amounts to, 
 
 {w) Reg. V. Bennett, 2 Den. C. C. 240, 
 .\.i>. 1851. Talluurd, J., on the trial, and 
 approved liy the judges on a ease reserved 
 on other points. 
 
 13 
 
 evidence as to 
 entering a 
 close in jiur- 
 suit of game. 
 
 Materiality of 
 passing by a 
 different name. 
 
 Evidence by a 
 woman on a 
 trial for rape 
 as to a letter 
 sent by her to 
 the prisoner. 
 
 Where statute 
 merely col- 
 lateral.
 
 eviikiK'C. 
 
 1 .J Of ]*(i'jiirii ill Common Tauv. [f'>00K v. 
 
 (•:il(Milatc(l to incilt.' Iiiiu to (;oiiiiiiit a breach of tlio peace. The 
 laii'nia^^u used l)y the prosecutor was in coii.sc(|uence of the prisoner, 
 as the prosecutor alle.<,'e(l, haviiiff kicked and struck a horse, and 
 several witnesses were called who proved this. The prisoner's at- 
 tention was then called to what the witnesses had said, and ho was 
 iisked on cross-e.xainination whether it was true ; he, however, 
 denied that he had ever kicked or struck the horse, and the justices 
 thereupon conuuitled him for trial for perjury. Held, that no 
 perjury cotdd he assigned, as the statement by the prisoner that 
 he had never kicked or struck the horse was merely collateral. (./) 
 If ii wii.Ks.s U|)on the trial oi Doe d. llichavd v. Grlffi^ths, a copy of the will 
 
 jjivi's false of William Joseph was tendered, and on objection to its admissi- 
 cvi.ienco as to bjlity, tlio prisoner, who was then attorney for the lessor of the 
 nnlcr tliiU it ])laintitV, swore that he had examined the copy produced with the 
 limy I'c 11(1- ori<;inal will, in the registry at Llaiidaff; and upon further objec- 
 iiiittc.i in ^-^^^^ ^1^,^^^ Ijij^ orifjinal will was inoperative in respect of a chattel 
 
 cviclemi', this . ii.i r -.i.! i, i^^i 
 
 ovidiiuo is interest, and that, thcreiore, either the probate ought to be pro- 
 inatoiial, duced or the Act Book be proved, the prisoner further deposed 
 
 thmi-li tlic ^^^^^ i^g j^j^j examined the memorandum at the foot of the copy of 
 
 (lociuiicnt no , -n • i i , • , i a . ti i . ■ i • x 
 
 iiiatlmissiMe, the wdl. With thc cutry in the Act Book at the same registry. 
 
 or not imt in Upon this evidence the judge oifered to receive the document in 
 evidence, but thc plaintiff's counsel withdrew it. Upon the trial 
 for perjury, it was proved that the defendant had not made either 
 of the examinations which he had so deposed to, and he Avas 
 found guilty of perjury ; but Erie, J., reserved the question, 
 whether the false oath was relevant and material to the issue then 
 being tried, so as to amount to perjury ; as to which the following 
 were the facts : — On the trial of the ejectment, the lessor of the 
 plaintiff claimed to be entitled to a term, which had been granted 
 to William Joseph and Rees Morgan jointly ; and his title was 
 that Morgan had survived Joseph, and assigned the term to 
 Catherine, the widow of Joseph, who married Saunders, and on 
 her marriage made a settlement, under which the term vested in 
 him. The will of Joseph was irrelevant to this title ; but the 
 time of his death was a material fact, in order to prove that Mor- 
 gan survived him, and proof of the probate of the will of Joseph 
 would thus have been relevant evidence towards establishing the 
 plaintiff's title. The purpose of the plaintiff's counsel in tender- 
 ing thc evidence, was to clear a doubt respecting the interest of 
 Joseph in the term, which w^as expected to be raised by the de- 
 fendant, and after the document was withdrawn, the survivor- 
 ship of Morgan to Joseph was clearly proved by other evidence 
 for the plaintiff ; but the purpose for which the document was 
 offered was not stated on the trial of the ejectment. In the 
 registry at Llandaff it was the practice to indorse the act of pro- 
 bate on the original will, and the book called ' The Act Book ' 
 contained a daily account of the matters of business completed 
 in the registry, and the memorandum at the foot of the docu- 
 ment in question was a copy of the entry in this book relating 
 to the probate of the will of Joseph, and not a copy of the act of 
 probate indorsed on the original will. It follows that the exami- 
 nation of thc document tendered with the entry in the book called 
 
 {tr) K. V. Hoklen, 12 Cox, C. C. 166.
 
 CHAP. I.] Oath must he material. 15 
 
 ' The Act Book' at Llandaff, did not render the document legally 
 admissible as an examined copy of the act of pi'obate. For the 
 prisoner, it was contended before the judges, that the question 
 was simply whether if a witness swears that he has examined a 
 document, not receivable in evidence, with a certain book, that can 
 be said to be material to the issue ? The time of Josej)h's death 
 was in issue ; how could the fact that the witness swore that he 
 had examined a paper, not receivable in evidence, with a certain 
 book, be material to the issue then being tried ? It is not enough 
 that the evidence has relation to the matter in issue ; it must be 
 material to the issue. It was contended, when the defendant 
 was tried, that what he had sworn was material for the jury, who 
 were to act on the evidence before them ; and, secondly, that it was 
 material for the judge, who was to say whether it was to be put 
 to the jury or not. But it could not be material for the jury; 
 for it was withdra^vn from their consideration, and they could 
 not legitimately act upon it ; and here the judge was not a judge 
 of fact. This evidence was not on any issue of fact which the 
 judge had to try. It was merely evidence to be given to the jury 
 through the judge. Lord Campbell, C. J., ' I am of opinion that 
 the conviction was right. There was false swearing in a judicial 
 proceeding. How can it be said not to have been material ? It 
 was necessar}^ to prove that Joseph died before Morgan. Although 
 the fact of Joseph's death had been proved by parol testimony, 
 if evidence was given to show that probate had been granted of 
 Joseph's will while Morgan was still living, it would have been 
 material in corroboration. With a view to have the copy of the 
 will received in evidence, the defendant swore falsely that he had 
 examined the paper produced with the original will at Llandaff, 
 and the entry on it with the entry in the Act Book ; and there- 
 upon the judge said, I will admit it, and if it had been read, it 
 would have gone to the jury with the rest of the evidence in the 
 case. Afterwards the document is withdrawn, but that cannot 
 purge the false swearing committed by the defendant. It has 
 been said that if the judge were wrong in admitting the document 
 in evidence, the defendant could not be convicted, making the 
 offence of perjury depend upon whether a judge were right or 
 wrong in his decision on a question of law, and upon the decision 
 of some nice point in a bill of exceptions, which might ultimately 
 go to the House of Lords. We are all of opinion, as the evidence 
 was given in a judicial proceeding, with a view to the reception in 
 evidence of a document, which was material, and as that evidence 
 was false, that all the ingredients necessary to constitute the crime 
 of perjury arc present.' (y) 
 
 Where a count stated that it was a material question whether Reading over 
 a bond Avas obtained by the fraud of the prisoner, and that the .1 bond before 
 prisoner falsely swore that he read over and explained it to the 
 obligor ; it was objected that the omission to read over the bond 
 
 (y) Reg. V. riiillpotts, 2 Den. C. C. 302. material to that judieial jtrocoedin^' ; and 
 
 3 C. & K. 135, A.D. 18.^1. In tlie it is not ntiessary tliat it should have 
 
 course of the argument, Maule, J., said, been relevant and material to the issue 
 
 ' Here the defendant by means of a false being tried.' In Reg. r. Gibbon, /«yV(r, 
 
 oatli endeavours to have a document re- Pollock, ('. 15., said that there was a 
 
 ceived in evidence ; it is, tlierefore, a great deal of very good sense in Lord 
 
 false oath iu a judicial proceeding ; it is Campbell's judgment iu this case.
 
 IG 
 
 Kvidonco of 
 tlio (Icstructiou 
 of nrciiuntH on 
 n clini'go of 
 hiicuiiy. 
 
 Of J\-r/iiri/ (it Common Lav). [book v. 
 
 Materiality of 
 cviilencc on a 
 rofcrc'iu'e of a 
 cause ami all 
 matters in 
 diirei'cncc. 
 
 Materiality of 
 j'viiknce be- 
 fore a 
 eoroi:cr. 
 
 was no cvidciicf of iVaitd, ami therefore the statenient was not 
 material; hut Mrlo, J., (jverruled the ohjection, as the reading 
 over the hond would he stron<,' evidence to nofjative fraud, (z) 
 
 The prisoner was indicted for liaving falsely sworn heforc 
 justices, on a charge against the prosecutor for stealing three 
 hooks of account, tliat she saw him destroy another hook of 
 accounts, the ])rosecutor heing also charged with emhezzlement ; 
 and Watson, B., held that the evidence was not material. Its 
 heing calculated to iniluence the minds of the magistrates would 
 not he sufficient. Jt would be merely Ixul conduct in one in- 
 stance, inducing a probability of bad conduct in another. On 
 the charge for embezzlement it would have been material evi- 
 dence, (a) 
 
 An indictment alleged that a cause came on" to be tried at the 
 Assizes, and that the cause and all matters in difference between 
 the parties were referred to an arbitrator, and assigned perjury 
 before him as to the signature of a paper. The arbitrator said 
 that it was impossible for him so to distinguish between the 
 matters in the cause and the other matters in difference between 
 the parties, as to say definitively to which head the questions put 
 to and the answers given by the prisoner referred, and there was 
 no other evidence on the point. Gurney, Q. C, ' In all these cases 
 it is necessary to show that the matter alleged to be falsely sworn 
 was material, and that cannot be done in this case without proof 
 that it was material either to the action or to the other matters in 
 difference. The evidence failing to show this distinctly, the de- 
 fendant must be acquitted.' (6) 
 
 An indictment for perjury, committed before a coroner while 
 holding an inquest on the body of J. Conolly, alleged that it was 
 a material (question Avhether the deceased, the prisoner, or another 
 person had drank any intoxicating liqitor after they had left a 
 police barrack and before they bad arrived at a guard-room, and 
 that the prisoner falsely swore that none of them had tasted any 
 intoxicating liquor during that interval. This statement was 
 clearly shown to be false, but there were no grounds for supposing 
 that the deceased came to bis death from anything except from 
 the effects of having been exposed to the night air. It was ob- 
 jected that the matter so falsely sworn Avas not material, and 
 Monahan, C. J., w\as inclined so to hold ; but he left the question 
 of materiality to the jury, and they convicted; and, upon a case 
 reserved, it was held that the evidence was material. It was the 
 duty of the coroner to inquire into all the circumstances attending, 
 or which might have caused, the death of the person upon whom 
 the inquiry was held. That being so, it at once became material 
 to ascertain whether or not death had not been caused to some 
 extent by the deceased having been tippling in a public-house, and 
 
 show that the evidence was material in 
 any respect upon the hearing of the 
 niattei-s referred. It is obvious that the 
 pajter in this case might have been ma- 
 terial both to the matter in issue in the 
 cause, and to the other matters refenvd, 
 and yet according to this report the evi- 
 dence Would not have been material. 
 C. S. G. 
 
 (r) Keg. V. Smith, IF. & F. 98, a.d. 
 1858. 
 
 (a) Eeg. V. Southwood, 1 F. & F. 356, 
 A. p. 1858. 
 
 {l>) Reg. r. Ball, 6 Cox, C. C. 360, 
 A.v. 1854. Gurney, R., is far too good 
 a criminal lawyer to have made such a 
 decision as this, and I liave the best au- 
 thority for saying that he never did so 
 decide. Pro'lablv the evidence failed to
 
 CHAP. I.] Oath must he Material 
 
 therefore in a state to render it more probable that he sliould have 
 lost his way. It was material for the coroner to ascertain, not 
 alone the actual canse of death, as murder, felo de se, or otherwise, 
 but also all the circumstances attending it, and therefore it was 
 a necessary part of his duty to ascertain the Avay in which the 
 deceased spent the evening before his death, (c) 
 
 An indictment for perjury alleged that the prisoner falsely 
 swore at a petty sessions that D. Rees was the father of her ille- 
 gitimate child, and that her master, Avho was the uncle of D. Rees, 
 had promised to raise her wages if she would swear the child to 
 a man other than the said D. Rees, and if she would do so he 
 would permit her to lie in at his house. Martin, B., expressed a 
 strong opinion that this evidence as to the promises made to her by 
 her master Avas not sufficiently material to the issue before the 
 justices so as to amount to the crime of perjury ; but he left the 
 case to the jury, (d) 
 
 The prisoner was indicted for perjury alleged to have been 
 committed by him on the hearing of an application of M. 
 Humphreys, the mother of a bastard child, for an order in bas- 
 tardy to be made upon the prisoner. Upon the hearing M. Hum- 
 phreys swore that on the day after the birth of the child the 
 prisoner paid her ll. 7s. 6d., and that he paid her a weekly sum 
 for several weeks after ; in answer thereto the prisoner swore that 
 he never paid M. Humphreys any money at all upon any account 
 whatsoever, and on this statement perjury was assigned; it was 
 objected that this assignment of perjury was upon a matter im- 
 material on the hearing ; but, upon a case reserved, it was held that 
 it was clearly material ; for it was necessary to jDrove at the hearing 
 the payment of the money ; and further, the payment of the money 
 for the maintenance of the child was corroborative evidence of the 
 paternity, (e) 
 
 Brennan being charged before justices of the peace with a rob- 
 bery in a railway carriage, cross-examined the prosecutor after he 
 had given his evidence in support of the charge, as to whether he 
 had been in company with himself and the prisoner at Manchester 
 on the previous day, and then called the prisoner, who swore that 
 the prosecutor had accosted him, whilst in company with Brennan, 
 and proposed that he should assist him to break into his uncle's 
 house ; and it was held that this evidence was in a matter imma- 
 terial to the inquiry before the justices. (/) 
 
 Justices have no right to inquire into the truth of a charge of 
 libel preferred before them, or to hear any other justification. If 
 l^ublication is proved, they are bound to commit. Where, there- 
 fore, an indictment was preferred for perjury alleged to have been 
 committed in the course of the cross-examination of a witness for 
 the defendant on a charge of libel before magistrates, the object of 
 Avhich was to prove the truth of the libel, such cross-examination 
 
 17 
 
 Evidence of 
 mother on an 
 application in 
 bastardy. 
 
 Materiality of 
 payment of 
 money to the 
 mother of a 
 
 bastard. 
 
 Evidence 
 which ought 
 not to have 
 been admitted 
 held to be im- 
 material. 
 
 (c) Reg. V. Courtney, 7 Cox, C. C. Ill, 
 A.D. 18.56. 
 
 (d) Reg, V. Owen, 6 Cox, C. C. 105, 
 A.D. 1852. The report does not show 
 how any siuli evidence was admitted be- 
 fore the justices. Acquittal. 
 
 (c) Reg. V. Berry, BeU, C. C. i6, A.D. 
 1859. 
 (/) Reg. r. Murray, 1 F. & F. 80, 
 VOL. in. 
 
 A.D. 1858. Martin, B., after consulting 
 Bylcs, J. This case seems to be over- 
 ruled by Reg. r. (iibbon, iufra. On its 
 being cited in that case, Martin, B., said, 
 ' That case should not be looked ujiou as 
 any authority. It was only my impres- 
 sion of what ■was uuitcrial formed hastily 
 on circuit.'
 
 18 
 
 If ft witiK'^H 
 
 oxiiini 111)1 1 (VM 
 to n mutter on 
 wliicli lii.** 
 
 Ull.SWfT ciUgllt 
 to l)(! Ii<>l<l 
 
 coiicliiHivc, 
 but .itiotlicr 
 witness in 
 lionnitteil to 
 contni'lict him 
 iks to such 
 in;ittcr. this 
 evidence is 
 material, ami 
 if false is tlic 
 suhjcct of 
 perjury. 
 
 Of rcrjunj at Common Law. [book v. 
 
 ijoL Xx^Mv^ upon iii;ill,(;r iii;it(;ri;il to the issue, the Court directed 
 nil ;ic<|iiitt:il. (ij) 
 
 The' prisoner was indicted for fulsely swearing on the hearin^^ of 
 an applieation in hastardy, that he had connection with the 
 mother of the chihl. Tiie mother in support of the application 
 had made a (h'position before the magistrates, and she was then 
 cross-examined as to whether she had not had connection with the 
 prisoner in the Septend)er previous to the birtli of the chihJ, wliich 
 was on tlie 2i)th of March, and she denied it. The prisoner was 
 called for the alleged father, and swore that he had had con- 
 nection with her as imputed by the question put to her. It "wa.s 
 objected that the evidence given by the prisoner was not material 
 to the issue raised on the application for the affiliation order, as 
 the question put to the mother as to her having had connection 
 with the prisoner merely went to affect her credit, and her answer 
 to it ought to have been regarded as conclusive, and the evidence 
 given by the prisoner was inadmissible. But, on a case reserved, 
 it \vas held that the prisoner was liable to bo convicted. ' It is 
 now clearly established that a cross-examination going to a wit- 
 ness's credit is material, and that perjury may be assigned upon 
 it.' (It) Here, therefore, the mother might have been indicted if 
 she had sworn falsely on cross-examination upon this matter. 
 'Although it did not refer to the main issue, which was the 
 paternity of the child, it had a bearing upon what was indirectly 
 in issue ; namely, how far the complainant was deserving of 
 credit.' (i) ' Then, as the question only affected her credit, as soon 
 as she had answered it, all should have been bound by her answer. 
 This is an established rule of our law. Notwithstanding that, the 
 magistrates admitted the evidence of the prisoner, which legally 
 was inadmissible. Then, although not legally admissible, yet, 
 being admitted, it had a reference to what was indirectly in issue — 
 the credibility of the complainant. The evidence having been ad- 
 mitted, although wrongly. Beg. v. Phillpotts (j) is an authority 
 directly in point that perjury may be assigned upon it. Although 
 the evidence w'as open to objection, yet it does not lie in the wit- 
 ness's mouth to say that it was not a question on which he Avas 
 bound to speak tlie truth, (k) 
 
 {,/) K. r. Townsend, 10 Cox, C. C. 
 356 ; M. Smith, J. 
 
 <h) Per Croini)ton, J. 
 
 (i) Per Cockbuni, C. J. 
 
 (j) Siqyra. 
 
 (k) Ee" V. Gibbon, L. & C. 109, by 
 eleven judges, C'rompton, J., and Martin, 
 li., doubting. It was stated in the argu- 
 ment that the child was a full-grown 
 child. Tlie cases wliere it has been held 
 on a trial for rape that the woman may 
 be proved to have had connection with 
 other men, were distinguished bj' "Wil- 
 liams, J., on the ground that 'the cha- 
 racter of the prosecutrix in those cases 
 may be so mixed up with the facts as to 
 be material, not only to lier credit, but to 
 the cause.' By the counsel for the prose- 
 cution they were distinguished on the 
 ground that voluutarj' intercourse with 
 others was very material on the question 
 whether she consented; and this dis- 
 
 tinction was not denied by any judge. 
 The cases where in an action for seduction 
 such evidence has been held admissible, 
 were distinguished on the ground that 
 such evidence affected the damages. But 
 althongh Alderson, B., in Yerry v. 
 "Watkins, 7 C. & P. 308, left such evi- 
 dence to the jury in mitigation of damages, 
 he first left the question to them whetluT 
 the defendant was the father of the child, 
 and my recollection of the case (in which 
 I was counsel for the defendant) is that 
 the evidence was given chiefly with a 
 view to that question. And in Grinnell 
 ?•. \Vells, Gloucester Spr. and Sum. Ass. 
 1S43, the mother on the first trial sworo 
 to connection with the defendant on one 
 occasion only ; and on the second trial 
 before Williams, J., evidence of an alibi 
 was given, and also evidence that the 
 mother had had connection with others 
 at such a time that one of them might
 
 CHAP. I.] Oath must he Material. 1 9 
 
 Upon an indictment for perjury in an answer to a bill filed Perjury can- 
 against the defendant in chancery, stating that the defendant not be assigned 
 promised to pay Martin 1,000^. as a marriage portion, when he in clmnce^^^ 
 was about to marry the defendant's niece : the defendant, by his denying a 
 answer, insisted that as there was no promise in writing, he was {"'tT^^^QiJ^^' 
 entitled to the benefit of the Statute of Frauds, but as to the tL'^.sia^tue o/ 
 fact, denied that he had ever made any such promise, on which frauds. 
 denial perjury was assigned. Lord Kenyon, C. J., said, that ' he 
 thought this was not such a material fact as would support the 
 indictment. This promise was absolutely void, and, supposing it 
 in fact to have taken place and acknowledged by the defendant, 
 could not be enforced either at law or in equity ; that Court had 
 no power to decree a performance of it. It might be a false 
 swearing, but did not amount to what the law denominated 
 perjury.' (I) 
 
 So where upon an indictment for perjury, alleged to have been Perjury cannot 
 committed in an answer to a bill filed in chancery, it appeared ^f 't^^^'^^'^ 
 
 /-.IT • 1 1^1 iT->i' .111 swearing as 
 
 that the bill was filed agamst the defendant and Kobmsou, in to a parol 
 
 order to compel the specific performance of a contract for the pur- contract for 
 chase of a freehold estate, and it was not stated in the bill that the ^^^^^^ °^ 
 contract was in writing, but it was alleged that the defendants 
 had frequently since the contract was entered into, admitted that 
 the plaintiffs were interested in the purchase ; and the defendants 
 in their answer pleaded that the alleged agreement, not being in 
 writing, was within the fourth section of the Statute of Frauds, 
 and could not be enforced, and also denied the agreement as sot 
 forth in the bill, and denied that they ever admitted that the 
 plaintiffs were interested in the purchase as stated : and upon 
 these denials perjury was assigned. It was admitted that the 
 agreement was not in writing, and that there was not any memo- 
 randum or declaration of trust resiDOctiug it. It was objected that 
 the alleged perjury was not material or relevant to the matter in 
 issue in chancery ; the agreement not being in writing, the de- 
 fendant relied on the Statute of Frauds as a good ground of 
 defence. The denial therefore of an agreement which the Court 
 had no power to enforce was immaterial and irrelevant to the in- 
 vestigation of the several matters in the bill. The counsel for the 
 prosecution cited Bartlett v. Pichersgill, (in) where a party was 
 convicted of perjury for the denial of a parol agreement for the 
 purchase of an estate, which parol agreement a court of equity 
 had refused to enforce. Abbot, C. J., 'It does not appear 
 from the short statement of the case which has been cited, and 
 which is not very distinctly reported, whether the Statute of 
 Frauds was there pleaded and relied on. But in the present case 
 the defendants have in their answer pleaded tlie statute, and in- 
 sisted that this agreement not being in writing, and relating to 
 the sale of land, is within the fourth section of that statute, and 
 cannot be enforced. As a judge of a court of common law, it is 
 competent for me to form my opinion upon the construction of 
 
 have been the father of the cliihl ; and the mother. ('. S. G. 
 
 this evidence was given only with a view (Z) Hex t'. Bcuesech, Peake, Add. C. 
 
 to the paternity of tlio child. The new 03. 
 
 trial had been obtained on the aHldavit {m) i 15urr. 2255. 4 East, 577, m 
 
 {amongst otlicrs) of the defendant ex- notis. 
 
 pressly negativing any connection with
 
 20 
 
 O/' Pi'ijin-i/ fil Common Law. 
 
 [jJOOK 
 
 Tut wlicrc n 
 l.ill is lllcl lu 
 Hct nsiilc a 
 written con- 
 tract en tlio 
 ^Toiind (if 
 fraud, a party 
 may l>o Ruilty 
 of perjury in 
 swearing 
 falsely as to 
 terms of the 
 contract not 
 contained in 
 writinff. 
 
 Perjury on the 
 trial of an 
 inilictuKMit re- 
 versed upon 
 error. 
 
 tills statute, altlionj^'Ii I f iiiiiot, bo presumed to know how a court 
 of (Miuity ini^'lit deal with it. Tlio statute, for tlie wisest reasons, 
 declares that a;,frfenients of this dcKcri|)tion shall not be enforced 
 uidcss they are reduced into writing. These defendants, therefore, 
 Iiavinvj insistcil upon the statute in their answer, the fjucstion is, 
 wlu'thcr under such circumstances the denial of an agreement, 
 which by the statute is not Ijinding upon the parties, is material; 
 1 am of opinion that it was utterly immaterial. It is necessary 
 that the matter sworn to and said to be false should be material 
 and relevant to the matter in issuo : the matter here sworn is in 
 my judgment immaterial and irrelevant, and the defendant must 
 be ac([uitte(l.' hi) 
 
 But where an indictment stated that a bill was filed in 
 chancery against the defendant, stating an agreement to purchase 
 certain wheat, to be paid for by draft at three months, which 
 agreement was not reduced into writing, and that afterwards a 
 bought note was delivered to the defendant, which note did not 
 contain fidly the terms of the agreement ; that the defendant 
 brought an action and recovered a verdict ; and that he "svas enabled 
 to obtain such verdict by reason of his fraudulently concealing the 
 true terms of the agreement, and the bill prayed that one of the 
 terms of the contract might be declared to be that the purchase 
 money should be paid by a bill of exchange, payable three months 
 after date ; and the defendant by his answer denied the parol 
 agreement stated in the bill, and the bill was dismissed, and the 
 denial by the defendant .was the subject of the indictment for 
 perjury. It was contended that the indictment could not be sus- 
 tained. The only legitimate evidence of the contract was the 
 bought and sold notes. The contract by parol was void by the 
 Statute of Frauds, and a false answer to a bill for the discovery of 
 such a contract would not subject a person to the indictment for 
 perjury; and Rex v. Dunston (o) was relied upon. Coleridge, J., 
 ' In that case the bill in chancery was to enforce the performance 
 of a parol contract, which could not be enforced by reason of the 
 Statute of Frauds : and the case of Hex v. Benesech {'p) proceeded 
 on the same ground. Though it is true that a party cannot vary 
 the terms of a written contract, by parol evidence, he may show 
 by such evidence that he was induced to sign the written contract 
 inadvertently and by fraud. In this case the object of setting up 
 the parol terms of the contract is for the purpose of avoiding the 
 contract on the ground of fraud.' ' I think that the principle, 
 that parol evidence is inadmissible to contradict or vary the terms 
 of a written contract, does not apply wdiere the object of that 
 evidence, as in this case, is to impeach the transaction on the 
 ground of fraud. I think that the assignment of perjury on the 
 denial in the answer of the parol terms, which the bill prayed to 
 have established, is material and relevant ; and I think therefore 
 that the objection cannot be sustained.' {q) 
 
 Perjury may be committed on the trial of an indictment, which 
 is afterwards held bad upon a writ of error. An indictment 
 charged the defendant with having committed perjury on the trial 
 
 («) lu>x r. Dmiston, K. & M. X. \\ K. 
 lO;). 
 
 (o) Supra. 
 
 (/)) SKjn-a, note (A. 
 
 (7) Eeg. V. Yates, C. k ^I. 13:
 
 CHAP. I.] Oath must he Material. 21 
 
 of a previous indictment for perjury, upon which a party had 
 been convicted and sentenced, but the judgment reversed on a 
 writ of error on the ground that the assignment of perjury was 
 insufficient ; (r) and it was objected that the evidence of the 
 defendant never could have been material, as the former indict- 
 ment was held bad upon a writ of error ; but the objection was 
 overruled, on the ground that, whether a witness had committed 
 wilful and corrupt perjury or not, could not depend on the 
 validity in point of form of the indictment as to which he gave 
 evidence, (s) 
 
 But it must be observed that any false oath is punishable as Any oath is 
 perjury which tends to mislead a court in any of their proceed- P^^'J^''^ "^^'^V*^^ 
 ings relating to a matter judicially before them, though it in no leaij 1 co™^''in 
 way affect the principal judgment which is to be given in the an}- judicial 
 cause ; {t) as where a person who offers himself to be bail for P^^oceediiig. 
 another wilfully swears that he is a subsidy man and assessed at 
 four pounds in the subsidy book, when he is not a subsidy man 
 at all. (it) So also perjury may be committed in evidence given 
 to the judge in order that he may decide whether a document is 
 admissible, (v) 
 
 An indictment for perjury alleged that the defendant, as cxecu- The question 
 trix of her husband, was plaintiff in a cause in the county court, of ^J^atenahty 
 and that she falsely swore that she had never been tried at the tiie jury in 
 Central Criminal Court for any offence, and had never been in this case, 
 custody at the Thames police station ; it was proved that she had 
 been in custody at the station, and had been tried at the Central 
 Criminal Court, and acquitted by the direction of the judge ; the 
 cause in the county court was an action for goods sold by the tes- 
 tator, and was tried by the judge without a jury ; and the verdict 
 was for the plaintiff ; and the evidence in (piestion was given by 
 the plaintiff during her cross-examination ; it was objected that 
 the evidence given by the defendant was not material. It could 
 not be material on the question whether the testator in his lifetime 
 sold the goods for which the action was brought ; and as the trial 
 in the county court was before a judge, and not before a jury, it 
 did not weigh as to the result of that trial whether she had been 
 tried or not ; and as giving a true answer that she had been 
 acquitted by the direction of the judge would have equally cleared 
 her character, it could not have been material that she denied 
 having been taken into custody and tried on that charge. Lord 
 Campbell, C. J., ' I think that there is evidence of materiality,' and 
 (the counsel for the prisoner having addressed the jury) he left 
 that question to the jury, and directed them to consider whether 
 her evidence on the two points in question might nut influence the 
 
 (r) See llo^. r. Burraston, pod, p. 60, pvevions trial, from being indii'tcil for 
 
 (.V) Keg. v'. Meek, 9 C. k. V. 513, ^Vil- ])criury ; ' per Pollock, C. B., Keg. v. 
 
 Hams, J. Mullettv. Hunt, 1 Cr. & M. Cooke, 2 Den. C. C. 462. 
 
 752, was eited 171 support of the objection. (/) 1 Hawk. 1'. C. c. 69, .s. 3. K. v. 
 
 See also Davis v. Lovcll, 4 M. & W. 678. Mulhiny, 34 L. J. M. V. Ill, L. & V. 
 
 Seel Hawk. P. (.'. c. 69, s. 4. eited, 593, where a defendant on a trial of a 
 
 post, II. '33. 'If judgment be arrested in a plaint in a county court, wilfully, cor- 
 
 civil action for a defect in the deelara- ruptly, and falsely, swore his name was 
 
 tion, it has never been said that that cir- Edward and not Bernard. 
 
 cumstance would prevent a witness, who (x) Koyson's case, Cro. Car. 146. 
 
 liad been guilty of false swearing at the (r) Keg. r. Pliillpotts, ((/(A;, p. 15,
 
 But tlio pi-c- 
 cediii;; I'.iso 
 
 llHM llOUIl 
 (jllcslinlicil, 
 
 ••iinl it .sciins 
 tliiit m.-iti-rial- 
 ity iff a i|in;.i- 
 lion oC luw, 
 
 Tlic qucslion 
 of in.iteriality 
 wa.M, however, 
 left to tlio 
 jury in tlii^ 
 case. 
 
 A man may bo 
 perjured by 
 an oath taken 
 in his own 
 cause. 
 
 But a false 
 verdict docs 
 not come un- 
 der tlie notion 
 of perjury. 
 
 It is not ne- 
 cessary that 
 the false oath 
 were credited. 
 
 Of Pcrjurij at Common Law. [book v. 
 
 Tiiitid of tlic jiulj^c of tlio county court in l;uli(n'inf,' or disbelieving 
 till' (ttlirr stiitciiieiits slie made in giving' licr evidence, {w) 
 
 lint where on an indictment lor perjury before a coroner a ques- 
 tion was raiserl as to the materiality of the matter .sworn, and that 
 (juestion was l(;ft to the jury, Avho convicted ; it was held, on a ca.se 
 reserved, that the matter was material : and all the judges except 
 one, after fully considering the pieceding case, exjtressed a very 
 strong o])inion that is was for the judge to determine whether the 
 matter was material or not. (cc) 
 
 An indictment alleged that on the hearing of an application for an 
 order in bastardy, it became material to inquire whether the pri- 
 soner had ever kissed the prosecutrix or had familiarity with her ; 
 the prisoner being examined in an.swer to the evidence given by the 
 jnosecutrix, swore that he never had any connection or familiarity 
 with her, and never ki.ssed her. It Avas objected that the evidence 
 was not material, as it was far too Avide in the form in which it 
 was given. Wightman, J., consulted Erie, C. J., and declined to 
 stop the case, and after pointing out the necessity for two witnesses 
 to prove the falsehood of the prisoner's evidence, told tlie jury : 
 ' Then the question arises whether the parts of his evidence which 
 are assigned as perjury were material to the investigation. ]t 
 seems to me that they were so, but that is for you. Were they 
 material and wilfully false ? ' (?/) 
 
 It should be observed, that a man may be as much perjured by 
 an oath taken by him in his own cause, either in an answer in 
 chancery, or in an answer to interrogatories concerning a contempt, 
 or in an affidavit, &c., as by an oath taken by him as a witness in 
 the cause of another person, (z) But the oath must be taken by 
 a person sworn to depose the truth ; and a false verdict does not 
 come under the notion of perjury, because the jurors do not swear 
 to depose the truth, but only to judge truly of the depositions of 
 others. («) 
 
 A further point of general application may be mentioned, 
 namely, that it appears not to be important whether the false oath 
 were credited or not, or whether the party in whose prejudice it 
 was taken were in the event any ways damaged by it ; for the pro- 
 secution is not grounded on the damage to the party, but on the 
 abuse of public justice, (h) 
 
 (iv) Reg. V. Lavey, 3 C. & K. 26, a.d. 
 1850. In every previous case materiality 
 has been treated as a question of law, 
 and it is submitted that it is clearly so ; 
 otherwise all the cases in which it has 
 been held that an averment of materiality 
 is unnecessary where the materiality ap- 
 pears on the face of the indictment, are 
 erroneous. In IJcg. v. Gibbon, L. k C. 
 109, Channell, B., said he never could 
 iinderstand IJeg. t\ Lavey, ' unless on 
 the ground that there was a question 
 whether the defendant in the (.'ounty 
 Court action meant to plead or admit the 
 claim. That point having been ascer- 
 tained, the question of materiality was no 
 longer for the jury.' 
 
 (.'•) h'eg. r. Courtne}-, 7 Cox, C. C. 111. 
 A.D. 1856. Ball, J., doubted. It is to 
 bo observed that in this case all the 
 
 judges held the evidence to be material ; 
 they did, therefore, treat the question as 
 a matter of law. If they had held it to 
 be a question for the jury, the question 
 would have been whether the evidence 
 warranted the verdict. See this case 
 more fullv stated, ante, p. 17. 
 
 Oj) Eeg. V. Goddard, 2 F. & F. 361, 
 A.r. 1861. No authority was referred to 
 in this case. Acquittal. 
 
 {:) 1 Hawk. V. C. c. 69, s. 5. Bac. 
 Abr. tit. Perjury (A). 
 
 (a) Id. ibid. 
 
 (h) 1 Hawk. P. C, c. 69, s. 9. Bac, 
 Abr. tit. Perjury (A). In Eex r. 
 NichoUs, Gloucester Sum. Ass. 1S38, cor. 
 Patteson, J., the prisoner had on the trial 
 of one Pitt for larceny sworn that he had 
 not given the stolen property to Pitt, but 
 he was contradicted by other witnesses,
 
 CHAP. 
 
 !■] 
 
 Perjury hy Statutes. 
 
 23 
 
 In some cases, where a false oath has been taken, the party may 
 be prosecuted by indictment at common law, though the offence 
 may not amount to perjury. Thus it appears to have been holden, 
 that any person making or knowingly using any false affidavit 
 taken atjroad (though a perjury could not be assigned on it here) 
 in order to mislead our courts of justice, is punishable by indict- 
 ment, as for misdemeanor; and Lord EUenborough, C. J., said, 
 ' that he had not the least doubt that any person making use of a 
 false instrument in order to pervert the courseof justice was guilty 
 of an offence punishable by indictment.' (c) 
 
 We may now proceed to consider the 5 Eliz. c. 9, and other 
 statutes which relate to the offence of perjury. 
 
 By the 5 Eliz. c. 9, (J) s. 3, ' all and every such person and per- 
 sons which shall unlawfully and corruptly jorocure any witness or 
 witnesses by letters, rewards, promises, or by any other sinister 
 and unlawful labour or means whatsoever, to commit any wilful 
 and corrupt perjury, in any matter or cause whatsoever now de- 
 pending, or Avhich hereafter shall depend in suit and variance, by 
 any writ, action, bill, complaint, or information, in any wise touch- 
 ing or concerning any lands, tenements, or hereditaments, or any 
 goods, chattels, debts, or damages, in any of the courts before men- 
 tioned, (e) or in any of the Queen's Majesty's courts of record, qr 
 in any leet, view of frank-j)ledge or law -day, ancient demesne court, 
 hundred court, court baron, or in the court or courts of the stan- 
 nary in the counties of Devon and Cornwall ; or shall likewise un- 
 lawfully and corruptly procure or suborn any witness or witnesses, 
 which shall be sworn to testify in ijerpetuam rei memoriam; that 
 then every such offender or offenders shall for his, her, or their said 
 offence, being thereof lawfully convicted or attainted, lose and 
 forfeit the sum of forty pounds.' 
 
 Sec. 4. ' If it hapi^en any such offender or offenders, so being 
 convicted or attainted as aforesaid, not to have any goods or 
 chattels, lands, or tenements, to the value of forty pounds, that 
 then every such person so being convicted or attainted of any of the 
 offences aforesaid, shall for his or their said offence suffer imprison- 
 ment by the space of one half-year, without bail or mainprize, and 
 to stand upon the pillory (/) the space of one whole hour, in some 
 market town, next adjoining to the place where the offence was 
 committed, in open market there, or in the market town itself 
 where the offence was committed.' 
 
 Sec. 5. ' No person or persons, being so convicted or attainted, 
 be from thenceforth received as a witness to be deposed and sworn 
 in any court of record (within England, Wales, or tlie marches of 
 
 False oath in- 
 dictable in 
 some cases, 
 though not 
 assignable as 
 perjury. 
 
 Statutes re- 
 lating to per- 
 jury. 
 
 5 Eliz. c. 9, 
 s. 3. Pro- 
 curing any 
 witness to 
 commit per- 
 jury in any 
 matter in suit, 
 by writ, &c., 
 concerning 
 any lands, 
 goods, (fcc, or 
 when .sworn 
 in perpstiuini 
 rei mcmoriarii 
 punishable by 
 forfeiture of 
 
 m. 
 
 Such offender 
 not liaving 
 goods, &c., to 
 the value of 
 40/., to suller 
 imprisonment. 
 
 Perseus con- 
 victed not to 
 bo received 
 
 and the jmy disbelieved liim, and ac- 
 quitted Pitt, and he was convicted of per- 
 j iiry in so swearinff, and transported for 
 seven years. C. 8. G. 
 
 (c) Unicaly v. Newell, 8 East, 3G4. 
 
 {d) Made perpetual Ijy the 29 Eliz. c. 
 6, s. 2, and 21 Jac. 1, c. 28, .s. 8. 
 
 (c) Viz. (as in sec. 1) ' the King's 
 Courts of Chancery, the Star Chamber, 
 the ^Vhitchull, or cLsewherc within any of 
 the King's dominions of England or 
 AVales, or the marches of the same, where 
 any person or persons have or from 
 thenceforth should have authority by 
 
 virtue of the King's commission, patent, 
 or writ, to hold ])lea of land, or to ex- 
 amine, hear, or dotcrniine anj' title of 
 lands, or any matter or witnesses con- 
 cerning the title, right, or interest of any 
 lands, tenements, or hereditaments.' 
 
 (/) The 1 Vict. c. 23, abolishes tho 
 punishment of pillory in all cases, but 
 docs not 'change, alter, or alfect any 
 punishment whatsoever which may now 
 by law be inllicted in respect of any 
 oifence, except only the punishment of 
 the pillory.
 
 21 
 
 \iiitil jilil;;- 
 
 taCIll IL'VCIHCil. 
 
 Of Perjiirif Inj Slain I c^. 
 
 [book V. 
 
 IVrsniis roiii- 
 iiiilliii;,' jier- 
 jiiiv til ftiil'eit 
 '_'(»/. .'iiiil to be 
 iiniirisoiicil for 
 six iiKUitiis ; 
 aiici their oatli 
 not to lie re- 
 ceive. 1 in any 
 ciiiirt (if reeonl 
 until juilgnicut 
 rcvci"seil. 
 
 And if such 
 oirciiders Lave 
 not goods to 
 tlie value of 
 20/., they arc 
 to be set in 
 the pillory, 
 and have their 
 eare nailed ; 
 and to be 
 disabled from 
 being wit- 
 nesses until 
 judgment 
 reversed. 
 
 Disjiosal of 
 forfeitures. 
 
 Trial of 
 oflenccs. 
 
 The Act is not 
 
 Uic .saino), uiiLil such time .'is tlie jucl<^Mient j^ivcii fl!,^ainst the said 
 ])('rson or persons shall be reversed by attaint {<j) or otherwise; and 
 that, upon every such reversal, the parties grieved to recover his 
 or their damages at^ainst all and every such person and persons as 
 did procure the said jud^^Mucnt so reversed to l>e first given against 
 them, or any of" them, l)y acti(jn or actions t(; i>e sued upon his or 
 their case or cases, according to the C(jurse of" the common laws of 
 this ic:dm.' 
 
 Sec. (i. ' If any person ov person.s, either by the subornation, un- 
 lawful procurement, sinister persuasion, or means of any other.s, or 
 by their own act, consent, or agreement, wilfully and corruptly com- 
 mit any numner of wilful peijury, by his or their deposition in any 
 of the courts before mentionetl, or being examined ad pef/jetuani 
 rcl incmorid/m, that then every person or persons so offending, and 
 being thereof duly convicted or attainted by the laws of this realm, 
 shall for his or their .said offence lose and forfeit twenty pounds, and 
 to have imprisonment by the space of six months without bail 
 or mainprize ; and the oath of such person or persons so offending 
 from thenceforth not to be received in any court of record Avitiiin 
 this realm of England or Wales, or the marches of the same, until 
 such time as the judgment given against the said person or persons 
 sliall be rever.sed by attaint (g) or otherwise ; and that upon every 
 such reversal, the parties grieved to recover his or their damages 
 against all and every such person and persons as did procure the 
 said judgment so reversed to be given against them or any of 
 them, by action or actions to be sued upon his or their case or 
 cases, according to the course of the common laws of this realm.' 
 
 Sec. 7. ' If it happen the said ofi'cnder or offenders so offending 
 not to have any goods or chattels to the value of twenty pound.s, 
 that then he or they to be set in the pillory (/<,) in some raarket- 
 place within the shire, city, or borough, where the said offence 
 shall be committed, by the sheriff or his ministers, if it shall for- 
 tune to be without any city or town corporate ; and if it happen to 
 be within any such city or town corporate, then by the said head 
 officer or officers of such city or town corporate, or by his or their 
 ministers, and there to have both his ears nailed, and from thence- 
 forth to be discredited and disabled for ever to be sworn in any of 
 the courts of record aforesaid, until such time as the judgment 
 shall be reversed, (g) and thereupon to recover his damages in 
 manner and form before mentioned.' 
 
 The statute further enacts, that one moiety of the said for- 
 feitures shall be to the King, and the other moiety to such person 
 as shall be grieved, hindered, or molested by reason of any of the 
 oflences before mentioned, that will sue for the same, &c. ; and that 
 as well the judge and judges of every such of the said courts where 
 any such suit shall be, and whereupon any such pcrjur}- shall be 
 committed, as also the justices of a.ssize and gaol delivery, and jus- 
 tices of peace at their quarter sessions, both within the libeities 
 and without, may inquire of, hear, and determine all offences 
 against the said Act. (j) And it is provided that the said Act 
 
 ((/) Abolished by the 6 Geo. 4, c. 50, s. 
 60, and Evidcju-c, poi-t. 
 (h) See note( f), supra, 
 {j) Sees. 8, "9. But sec the 5 & 6 
 
 Vict. c. 3S, posl, p. 71. Sec. 10 of 
 5 Eliz. c. 9, is repciiled by the 26 &, 27 
 A'ict. c. 126.
 
 CHAP, l] 
 
 False Affirmations. 
 
 shall no way extend to any spiritual or ecclesiastical conrt, but 
 that every such offender, as shall offend in term as aforesaid, shall 
 be punished by such usual and ordinary laws as are used in the 
 said courts, (k) And it is also provided, that the said statute shall 
 not restrain the authority of any judge having absolute power to 
 punish perjury before the making tliereof; but that every such 
 judge may proceed in the punishment of all offences punishable 
 before the making of the said statute, in such wise as they 
 might have done and used to do to all purposes, so that they set 
 not on the offender less punishment than is contained in the said 
 Act. (0 
 
 An important sttitute relating to the punishment of perjury is 
 the 2 Geo. 2, c. 25, s. 2, which, in order the more effectually to 
 deter persons from committing wilful and corrupt perjury, or subor- 
 nation of perjury, enacts, 'that besides the punishment already to 
 be inflicted by law for so great crimes, it shall and may be lawful 
 for the Court or judge, before whom any person shall be convicted 
 of wilful and corrupt perjuiy, or subornation of perjury, according 
 to the laws now in being, to order such person to be sent to some 
 house of correction within the same county for a time not exceed- 
 ing seven years, there to be kept to hard labour (m) during all the 
 said time, or otherwise to be transported to some of his Majesty's 
 plantations beyond the seas, for a term not exceeding seven 
 years, {n) as the Court shall think most proper ; and thereuj^on 
 judgment shall be given, that the person convicted shall be com- 
 mitted or transported accordingly, over and beside such punish- 
 ment as shall be adjudged to be inflicted on such person, agreeable 
 to the laws now in being ; and if transportation he directed, the 
 same shall be executed in such manner as is or shall be provided 
 by law for the transportation of felons ; and if any person so com- 
 mitted or transported shall voluntarily escape or break prison, or 
 return from transportation before the expiration of the time for 
 which he shall be ordered to be transported as aforesaid, such 
 person, being thereof lawfully convicted, shall suffer death as a 
 felon, without benefit of clergy, and shall be tried for such felony 
 in the county where he so escaped, or where he shall be appre- 
 hended,' 
 
 Besides these statutes, there are a great number relating to per- 
 jury committed in particular jjroceedings and transactions, and by 
 particular person.s, some of which it will be proper to notice in this 
 place. Enactments of this description are to be met with in so 
 many and such various statutes that it is not presumed but that 
 many of them have not come within the editor's observation. 
 
 It should first be mentioned that the false affirmation, or decla- 
 ration, of any of the people called Quakers, made instead of an 
 oath, will subject the party to the penalties of perjury. 
 
 The 7 i-t 8 Will. 3, c. 34, excej)t ss. 4 and 5, is repealed by 
 
 25 
 
 to extend to 
 
 spiritual 
 
 courts. 
 
 Nor to restrain 
 other pimisli- 
 iiient of per- 
 jury. 
 
 2 Geo. 2, 
 c. 25, s. 2. 
 Perjury and 
 subornation of 
 perjury made 
 further fjun- 
 ishable by im- 
 prisonment 
 and hard 
 labour or by 
 transportation 
 for seven ycjirs. 
 
 OiTenders so 
 committed or 
 transported, 
 escaping or 
 breaking 
 prison, or re- 
 turning from 
 ti'ansportiition. 
 
 Statutes re- 
 lating to per- 
 jury com- 
 mitted in jiar- 
 ticuJar pro- 
 cceJiug.s, &c. 
 
 False affirma- 
 tions of 
 Quakers. 
 
 {k) Sec. 11. 
 
 (I) Sec. 13. 
 
 (vi) The 3 Geo. •], c. 114, provides that 
 any jierson convicted of ]ierjury or sub- 
 ornation of perjury may be scntenw'd to 
 imprisonment witli hard labour for any 
 term not c.\eccdiiig the term for which 
 the Courtmay imprison for such olFences, 
 
 in addition to, orinlieu of, any other pun- 
 ishment. 
 
 ()i) Now penal servitude for any term 
 not exceeding; seven and not less tliaii 
 five years if the oll'ence was committed 
 afti'r -25 .lulv, 1S64, vol. 1, p. 73, See 
 II. V. Castro", 43 L. J. g. 13. 105,
 
 120 
 
 Of Per j III' I I l>ij (Statutes. 
 
 [liOOK V. 
 
 n .<: I Will. I, 
 
 r. \\K 
 
 (Ridkers iind 
 ^luraviiiii.M. 
 
 S jparatists. 
 
 1 & 2 Vict, 
 c. 77. Per- 
 sons vho have 
 liccn (Quakers 
 anil Mora- 
 vians. 
 
 1 k 2 Vict. 
 c. 10.x Ail 
 jicrsons liouml 
 by tlie oath 
 talcon. 
 
 30 k .'II Vi<l. c. .")!) (III.' Statute Law Rcvi.sion Act, 1807). The 
 H Geo. I, c. (), relates to the declaration of fidelity and abjuration 
 oath to be made by Quak'crs ; and by sec. 2 of that Act persons 
 wilfully niakinfj false declarations under that Act are liable to the 
 same jiemdlies, i^-c, as if they had been fecund guilty of perjury. 
 Si'c. 1 of this Act is in part repealed by "M) & *31 Vict. c. 5Ji. 'i'hc 
 22 (3eo. 2, c. 4(), s. .'ifi, is repealed by the above Act, 30 & 31 Vict. 
 c. T)!). The 9 Geo. 4, c. 32, s. 1, is repealed by 36 & 37 Vict. c. 91, 
 (the Statute Law Revision Act, 1873). 
 
 'JMie 3 k 4 Will. 4, c. 4.9, s. 1, enacts that 'every person of the 
 jiersuasion of the people called Quakers and ever}' Moravian be 
 permitted to make his or her solemn affirmation or declaration, 
 instead of taking an oath, in all places and for all purposes whatso- 
 ever where an oath is or shall be required, cither by tlie common 
 law, or by any Act of Parliament already made, or hereafter to Ijc 
 made : ' and provides tliat ' if any such person making such solemn 
 atlirmation {<>) or declaration shall be lawfully convicted, wilfull}', 
 falsely, and corruptly to liave affirmed or declared any matter or 
 thing, which if the same had been (2?) in the usual form Avould 
 have amounted to wilful and corrupt perjury, he or she shall incur 
 the same penalties and forfeitures as by the laws and statutes of 
 this realm are enacted against persons convicted of wilful and cor- 
 rupt perjury.' 
 
 By 3 & 4 Will. 4, c. 82 (entitled an Act to allow the people 
 called Separatists to make a solemn affirmation and declaration 
 instead of an oath), s. 2, it is enacted, that if any pcr.son making 
 such (j9j9) solemn affirmation or declaration shall, in fact, not be 
 one of the people commonly called Separatists, or shall wilfully, 
 falsely, and corruptly affirm or declare any other matter or thing 
 which, if the same had been sworn in the usual form, would have 
 amounted to wilful and corrupt j^orjury, every such person so 
 offending shall incur the same penalties and forfeitures as by the 
 laws and statutes of this kingdom arc or may be enacted or pro- 
 vided against persons convicted of wilful and con-upt perjury. 
 
 By tlie 1 & 2 Vict. c. 77, ' it shall bo lawful for any person who 
 shall have been a Quaker or Moravian to make solemn affirma- 
 tion and declaration in lieu of taking an oath, as fully as it would 
 be lawful for any such person to do if he still remained a member 
 of either of such religious denominations of Christians,' and persons 
 giiilty of making false affirmations or declarations are liable to the 
 same punishments as persons guilty of jDcrjury, in the same manner 
 as in the preceding statute, {q) 
 
 By the 1 & 2 Vict. c. 105, 'in all cases in which an oath may 
 lawfully be and shall have been administered to any person either 
 as a juryman or a witness, or a deponent in any proceeding, civil 
 
 (0) The fonn of nfFinnation given by 
 this statute is, 'I, A. B., being one of 
 the people called Quakers [or one of the 
 persuasion of the people called Quakers, 
 or of the niiited brethren called Jlora- 
 vians, as the case may be], do solemnly, 
 sincerely, and truly declare and affirm.'' 
 
 ( ;») The word ' sworn ' seems omitted 
 here. 
 
 (Pl>) See fee. 1, jwt, Evidence. 
 
 (q) The form of alUrmatiou given by 
 
 this statute is, 'I, A. B., having been 
 one of the people called Quakers [or one 
 of the pei-suasion of the people called 
 Quakers, or of the united brethren called 
 Jloravians, as the case may be], and en- 
 tertaining conscientious objections to the 
 taking of an oath, do solemnly, sincerely, 
 and truly declare and afhnn.* This 
 statute was passed in consequence of 
 Eeg. r. Dorau, 2 Moo. C. C. \\. 37. See 
 K. r. Mooney, 5 Cox, C. C. 319.
 
 CHAP. I.] 
 
 Falsi Affirmations. 
 
 27 
 
 or criminal, in any court of law or equity in the united kingdom, 
 or on appointment to any office or employment, or on any occa- 
 sion whatever, such person is bound by the oath administered : 
 provided the same shall have been administered in such form and 
 with such ceremonies as such person may declare to be binding ; 
 and every such person, in case of wilful false swearing, may be 
 convicted of the crime of perjury in the same manner as if the 
 oath had been administered in the form and with the ceremonies 
 most commonly adopted.' 
 
 By the 17 & 18 Vict. c. 125, s. 20, ' if any person called as a 
 witness, or required or desiring to make an affidavit or deposition, 
 shall refuse, or be unwilling from alleged conscientious motives to 
 be sworn, it shall be lawful for tlie Court or judge or other presiding 
 officer or person qualified to take affidavits or depositions, upon 
 being satisfied of the sincerity of such objection, to permit such 
 person, instead of being sworn, to make his or her solemn affirma- 
 tion or declaration in the Avords following ; viz., " I, A. B., do 
 solemnly, sincerely, and truly affirm and declare, that the taking 
 of any oath is, according to my religious belief, unlawful ; and I do 
 also solemnly, sincerely, and truly affirm and declare," &c., Avhich 
 solemn affirmation and declaration shall be of the same force and 
 effect as if such person had taken an oath in the usual form.' 
 
 Sec. 21. 'If any person making such solemn affirmation or de- 
 claration shall wilfully, falsely, and corruptly affirm or declare any 
 matter or thing, which if the same had been sworn in the usual 
 form, would have amounted to wilful and corrupt perjury, every 
 such person so offending shall incur the same penalties as by the 
 laws and statutes of this kingdom are or may be enacted or pro- 
 vided against persons convicted of wilful and corrupt perjury.' 
 
 By the 24 & 25 Vict. c. i^Q, s. 1, ' if any person called as a witness 
 in any court of criminal jurisdiction in England or Ireland, or re- 
 quired or desiring to make an affidavit or deposition in the course 
 of any criminal proceeding, shall refuse or be unwilling, from 
 alleged conscientious motives, to be sworn, it shall be lawful for 
 the Court or judge, or other presiding officer or person qualified to 
 take affidavits or depositions, upon being satisfied of the sincerity 
 of such objection, to permit such person instead of being sworn, 
 to make his or her solemn affirmation or declaration in the words 
 following ; viz., " I, A. B., do solemnly, sincerely, and truly affirm 
 and declare that the taking of any oath is according to my religious 
 belief unlawful ;and I do also solemnly, sincerely and truly affirm 
 and declare," &c., which solemn affirmation and declaration shall 
 be of the same force and effect as if such person had taken an oath 
 in the usual form.' This section was framed from the above 
 enactment, 17 & 18 Vict. c. 125, s. 20, supra. 
 
 Sec. 2. ' If any person making such solemn affirmation or de- 
 claration shall wilfully, falsely, and corruptly affirm or declare any 
 matter or thing which, if the same had been sworn in the usual 
 form, would have amounted to wilful and corrupt perjury, every 
 such person so offending shall incur the same penalties as by 
 the laws and statutes of this kingdom arc or may be enacted 
 or provided against persons convicted of wilful and corrupt 
 perjury.' 
 
 By :J2 & 33 Vict. c. G8, s. 4, if any person called to give evidence 
 
 Affirmation 
 instead of oatli 
 iu certain 
 cases. 
 
 Persons mak- 
 ing a false 
 attirniation to 
 be suliject to 
 pnuishmcnt as 
 for perjury. 
 
 Persons re- 
 fusing from 
 conscientious 
 motives to bo 
 sworn in 
 criminal pro- 
 ceedings to be 
 permitted to 
 make a solemn 
 atHrmation or 
 declaration. 
 
 Punislimcnt 
 for making 
 false atiirnia- 
 tion. 
 
 32 & 33 Vict, 
 c. OS.
 
 28 
 
 Of r<r/i(ri/ 1)1/ St( dates. 
 
 [book v. 
 
 Arariiagc Acts. 
 
 5 & C Will. 4, 
 c. 62, s. 2. 
 Lords of the 
 Trca.su ry em- 
 powered to 
 ."-ubstitute a 
 declaration in 
 li'.'U of an oath, 
 &c., in certain 
 cases. 
 
 ill any court of justice (v) wliotlicr in a civil or criminal proccedinf^, 
 sliall oljjoct to tuku an oath, or shall b(; ohjcctcd to as incompe- 
 tent to take an oath, sucli person shall, if tli^' presiding judge (v) 
 is satisfied that the taking of an oath wunUl have no binding 
 elTect on his conscience, make the following promise and declara- 
 tion : ' I soK'iiiiily promise and declare that the evidence given Ijy 
 me to the Court shall l)e the truth, the whole truth, and notliing Ijut 
 the truth.' And any ])crson who, liaving made such promise and 
 declaration, shall wilfully and corruptly give false evidence, shall 
 be liable to be indicted, tried, and convicted for perjury, as if lie 
 had taken an oatli. 
 
 By li) & 20 Vict. c. 119 (entitled 'An Act to Amend tlie Pro- 
 visions of the Marriage and Registration Acts'), s. 2, every person 
 who shall knowingly or wilfully make and sign or sub.scribe any- 
 false declaration, or who shall sign any false notice, for the purpose 
 of procuring any marriage under the provisions of any of the 
 recited Acts (6 & 7 Will. 4, c. 85 ; 1 Vict. c. 22 ; 3 & 4 Vict. c. 72), 
 or this Act, shall suffer the penalties of perjury. 
 
 By sec. 18, any person who shciU knowingly or wilfully make 
 any false declaration or sign any false notice required by this Act 
 for the purpose of procuring any marriage, and every person who 
 shall forbid the granting by any superintendent registrar of a 
 certificate for marriage by falsely representing himself or herself 
 to be a person whose consent to such marriage is required by law, 
 knowing such representation to be false, shall suffer the penalties 
 of perjury, (.s-) 
 
 The 5 & G Will. 4, c. 62, which was passed for the purpose of 
 abolishing unnecessary oaths, by sec. 2 enacts, ' that in any ca.se 
 where, by any Act or Acts made or to be made relating to the 
 revenues of customs or excise, the post-office, the office of stamps 
 and taxes, the office of woods and forests, land revenues, works, 
 and buildings, the war office, the army pay-office, the office of the 
 treasurer of the navy, the accountant-general of the navy, or the 
 ordnance, his Majesty's treasury, Chelsea hospital, Greenwich 
 hospital, the board of trade, or any of the offices of his Majesty's 
 principal secretaries of state, the India board, the office for audit- 
 ino- the public accounts, the national debt office, or any office under 
 the control, direction, or superintendence of the lords commis- 
 sioners of his Majesty's treasury, or by any official regulation in 
 any department, any oath, solemn affirmation, or affidavit miglit, 
 but for the passing of this Act, be required to be taken or made 
 by any person on the doing of any act, matter, or thing, or for the 
 purpose of verifying any book, entry, or return, or for any other 
 purpose whatsoever, it shall be lawful for the lords commissioners 
 of his Majesty's treasury, or any three of them, if they shall so 
 think fit, by writing under their hands and seals, to substitute a 
 declaration to the same effect as the oath, solemn affirmation, or 
 
 (r) The words ' court of justice ' and 
 the words ' presiding judge' in tliis sec- 
 tion shall be deemed to include any 
 person or persons liaving by law autho- 
 rity to administer an oath for the taking 
 of evidence. 33 & 34 Vict. c. 49, s. 1. 
 This Act was passed shortly after the 
 present editor, held, whilst sitting as 
 arbitrator, that an arbitrator was not ft 
 
 court of justice within the meaning of 
 this Act. See Bradlaugh r. De Kin, 5 
 W. N., IS 70, p. 9, C. P. 
 
 (s) The G & 7 Will. 4, c. 85, s. 33, is 
 repealed by 37 & 38 Vict. c. 35 (the 
 Statute Law Revision Act, 1874). See 
 3& 4 Vict. c. 72, s. 4, vol. 2, p. Sll, 
 ante, p. 3.
 
 CHAP. I.J False Declarations. 29 
 
 affidavit which miglit, but for the passing of this Act, be required 
 to be taken or made ; and the person who might under the Act or 
 Acts imposing the same, be required to take or make such oath, 
 solemn afhrmation, or affidavit, shall, in presence of the com- 
 missioners, collector, other officer or person empowered by such 
 Act or Acts to administer such oath, solemn affirmation, or affi- 
 davit, make and subscribe such declaration, and every such com- 
 missioner, collector, other officer or person is hereby empowered 
 and required to administer the same accordingly.' 
 
 Sec. 3. ' The declaration so substituted is to be published in the Declaration to 
 Gazette and after twenty-one days from the date of the Gazette '^® pu^-'lished. 
 the provisions of this Act ai'e to apply.' 
 
 Sec. 4, 'After the expiration of the said twenty-one days it shall No oath 
 not be lawful for any commissioner, collector, officer, or other 'Afterwards, 
 person to administer or cause to be administered, or receive or 
 cause to be received, any oath, solemn affirmation, or affidavit, in 
 the lieu of which such declaration as aforesaid shall have been 
 directed by the lords commissioners of his Majesty's treasury to 
 be substituted.' 
 
 Sec. 0. ' If any person shall make and subscribe any such de- False decla- 
 claration as hereinbefore mentioned in lieu of any oath, solemn rations a mis- 
 affirmation, or affidavit, by any Act or Acts relating to the revenues *■ ^°^'^*°'"'- 
 of customs or excise, stamps and taxes, or post-office, required to 
 be made on the doing of any act, matter, or thing, or for verify- 
 ing any book, account, entry, or return, or for any purpose what- 
 soever, and shall wilfully make therein any false statements as to 
 any material particular, the person making the same shall be 
 deemed guilty of a misdemeanor.' 
 
 By sec. 6, the oath of allegiance is to be required in all cases as 
 before the Act passed. 
 
 By sec. 7, oaths in courts of justice are to be taken in the 
 same manner as if the Act had not passed. 
 
 Sec. 8. 'It shall be lawful for the universities of Oxford and Universities of 
 Cambridge, and for all other bodies corporate and politic, and for ^'^^'^,'"'1 '^"^ 
 all bodies now by law or statute, or by any valid usage, authorized ^^^ (^thgr ' 
 to administer or receive any oath, solemn affirmation, or affidavit, boiies, may 
 to make statutes, bye-laws, or orders authorizing and directing substitute a, 
 
 • • ... clecriritioii in 
 
 the substitution of a declaration in lieu of any oath, solemn affir- Heuof au 
 mation, or affidavit now required to be taken or made : provided oath, 
 always that such statutes, bye-laws, or orders be otherwise duly 
 made and passed according to the charter, laws, or regulations of 
 the particular university, other body corporate and politic, or other 
 body so authorized as aforesaid.' 
 
 Sec. 9. ' In future every person entering upon the office of church- Church war- 
 warden or sidesman, before beginning to discharge the duties sides^ntan's 
 thereof, shall, in lieu of such oath of office, make and subscribe, in oath abolished, 
 the presence of the ordinary or other person before whom he would, •'^."'l ^^ declaru- 
 but for the passinix of this Act, be reciuired to take such oat li, a t"^" '° ''° 
 declaration that he will faithfully and diligently perform the duties thereof. 
 of his office, and such ordinary or other person is hereby em- 
 powered and required to administer the same accordingly : pro- 
 vided always, that no churchwarden or sidesman shall in future be 
 required to take any oath on ([uitting office, as has heretofore 
 been practised.'
 
 30 
 
 Dei'liirftlion 
 Hiil>sliliilcil fi)r 
 oiitliM .'iinl 
 iitlid.ivils liy 
 
 ill tiiriiiiiku 
 IniHls. 
 
 ^f P<'i'ji(yiJ hif Sfatutes. 
 
 [book v. 
 
 Dcclunilion 
 sul>stitutc(l for 
 oatlis iiiid 
 affidavits here- 
 tofore required 
 on taking out 
 a patent. 
 
 Declaration 
 substituted 
 for oatiis and 
 aftidavits 
 required Ijy 
 Acts as to 
 pawnbrokers. 
 
 Fenalties as 
 to such oaths, 
 &c. , to apply 
 to declarations. 
 
 Justices not to 
 administer 
 oaths, &c., 
 touching mat- 
 ters whereof 
 they have no 
 jurisdiction by 
 statute. 
 
 Si'C. 10. * In ftny case where, under any Act or Acts for makinj^, 
 lllaintaininJ,^ or re^nilatin^'' any liiffhway, or any road, or any turn- 
 pike road, or I'or pavin;,', li^lititif,', watcliiiif,', or improvint,' any city, 
 town, or place, or toucliini^ any trust relating thereto, any oath, 
 Kolenm allirination, or aHidavit miglit, but for the pasfsing of thi.s 
 Act, be re(piired to be taken or made by any person whomsoever, 
 no such oath, solemn affirmation, or afhdavit, shall in future be 
 rc(|uired to be or be taken or made, but the person who might 
 luider the Act or Acts imposing the same be reciuired to take or 
 make such oath, solemn affirmation, or affidavit, shall in lieu 
 thereof, in the presence of the trustee, commissioner, or other 
 person before whom ho might under such Act or Acts be required 
 to take or make the same, make and subscribe a declaration to the 
 same effect as such oath, solemn affirmation, or affidavit, and such 
 trustee, commissioner, or other person, is hereby empowered and 
 re([uired to administer and receive the same.' 
 
 Sec. 11. 'Whenever any person or persons shall seek to obtain 
 any patent under the Great Seal for any discovery or invention, 
 such person or persons shall, in lieu of any oath, affirmation, or 
 affidavit which heretofore has or might be required to be taken 
 or made upon or before obtaining any such patent, make and suIj- 
 scribc, in the presence of the person before whom he might, but 
 for the passing of this Act, be required to take or make such 
 oath, affirmation, or affidavit, a declaration to the same effect as 
 such oath, affirmation, or affidavit ; and such declaration, when 
 duly made and subscribed, shall be to all intents and purposes as 
 valid and effectual as the oath, affirmation, or affidavit in lieu 
 whereof it shall have been so made and subscribed.' 
 
 Sec. 12. ' Where by any Act or Acts at the time in force for re- 
 gulating the business of pawnbrokers, any oath, affirmation, or 
 affidavit might, but for the passing of this Act, be required to be 
 taken or made, the person who by or under such Act or Acts might 
 be required to take or make such oath, affirmation, or affidavit, shall 
 in lieu thereof make and subscribe a declaration to the same 
 effect ; and such declaration shall be made and subscribed at the 
 same time, and on the same occasion, and in the presence of the 
 same person or persons, as the oath, affirmation, or affidavit in 
 lieu whereof it shall be made and subscribed would by the Act or 
 Acts directing or requiring the same be directed or required to be 
 taken or made ; and all and every the enactments, provisions, and 
 penalties contained in or imposed by any such Act or Acts, as to 
 any oath, affirmation, or affidavit thereby directed or required to 
 be taken or made, shall extend and apply to any declaration in 
 lieu thereof, as well and in the same manner as if the same were 
 herein expressly enacted w'ith reference thereto.' 
 
 Sec. 13, reciting that 'a practice has prevailed of administering 
 and receiving oaths and atfidavits voluntarily taken and made in 
 matters not the subject of any judicial inquiry, nor in anywise 
 pending or at issue before the justice of the peace, or other person 
 by whom such oaths or affidavits have been administered or re- 
 ceived,' and that ' doubts have arisen whether or not such pro- 
 ceeding is illegal, for the more effectual suppression of such 
 practice and removing such doubts,' enacts, ' that from and after 
 the commencement of this Act, it shall not be lawful for any
 
 CHAP. I.] False Declarations. 31 
 
 justice of the peace or other person to administer^ or cause or 
 allow to be administered, or to receive, or cause or allow to be 
 received, any oath, affidavit, or solemn affirmation touching any 
 matter or thing whereof such justice or other person hath not 
 jurisdiction or cognizance by some statute in force at the time 
 being {ss) : provided always, that nothing herein contained shall Proviso. 
 be construed to extend to any oath, affidavit, or solemn affirmation 
 before any justice in any matter or thing touching the preserva- 
 tion of the peace, or the prosecution, trial, or punishment of 
 offences, or touching any proceedings before either of the Houses 
 of Parliament or any committee thereof respectively, nor to 
 any oath, affidavit, or affirmation which may be required by the 
 laws of any foreign country to give validity to instruments in 
 writing designed to be used in such foreign countries respec- 
 tively'. (^) 
 
 Sec. 14. ' In any case in which it has been the usual joractice of Declaration 
 the Bank of England to receive affidavits on oath to prove the substituted for 
 death of any proprietor of any stocks or funds transferable there, affidavlts\-c- 
 or to identify the person of any such proprietor, or to remove any quired by 
 other impediment to the transfer of any such stocks or funds, ^'^°^ °* 
 or relating to the loss, mutilation, or defacement of any bank-note Si"e°transf?r 
 or bank post bill, no such oath or affidavit shall in future be re- of stock. 
 quired to be taken or made, but in lieu thereof the person who 
 might have been required to take or make such oath or affidavit 
 shall make and subscribe a declaration to the same effect as such 
 oath or affidavit.' 
 
 By sec. 15, declarations are substituted in lieu of the oaths re- 
 quired by the 5 Geo. 2, c. 7, ' An Act for the more easy recovery 
 of debts in his Majesty's plantations and colonies in America,' and 
 the 54 Geo. 3, c. 15, ' An Act for the more easy recovery of debts 
 in his Majesty's colony of New South Wales.' 
 
 Sec. 16. 'It shall and may be lawful to and for any attesting Declaration in 
 witness to the execution of any will, or codicil, deed, or instrument ^yiti^g suffi- 
 in writing, and to and for any other competent person, to verify exe'^cutTou o7° 
 and prove the signing, sealing, publication, or delivery of any such any will, 
 will, codicil, deed, or instrument in writing, by such declaration in codicil, &c. 
 writing made as aforesaid, and every such justice, notary, or other 
 officer shall be and is hereby authorized and empowered to ad- 
 minister or receive such declaration.' 
 
 Sec. 17. ' In all suits now depending or hereafter to be brought Suits on 
 in any court of law or equity by or in behalf of his Majesty, "his ''dwlt' of Ids 
 heirs and successors, in any of his said Majesty's territories, plan- Jrole'u.y' ^'° 
 tations, colonies, possessions, or dependencies, for or relating to declaration, 
 any debt or account, that his Majesty, his heirs and successors, 
 shall and may prove his and their debts and accounts, and examine 
 his or their witness or witnesses by declai'ation, in like manner as 
 any subject or subjects is or are empowered or may do by this 
 present Act.' 
 
 Sec. 18, reciting that ' it may be necessary and proper in many Voluntary 
 cases not herein specified, to require confirmation of written instru- d^^l-iration in 
 
 tUc form in 
 
 {ss) See Reg. r. Nott, C. & M. 2S8, comity, and the distinction seems to Lo 
 
 post, p. 106. between voluntary and conipulsoiy pro- 
 
 (t) There are some cases wliere a jus- ceedings. See Holier v. The Hundred of 
 
 tice may administer an oath out of his 13cnhurst, Cro. Car. 211.
 
 32 
 
 the Hi'llC'lllllo 
 
 jiiiiy liu taken. 
 
 Milk i 11.:^ f'llso 
 (It'rl.iniliciii i\ 
 iiiiHiloincHiior. 
 
 Persons in:ik- 
 in;^ false 
 (Iccliir.-ition 
 (Iccmeil guilty 
 of a niisilo- 
 lucanor. 
 
 Construction 
 of the 5 Eliz. 
 c. 9. 
 
 Of l\-rjanj hi/ Statutes. 
 
 [book v. 
 
 monts or ;ill('r,oili<iiirt, or proof of debts, or of the execution of deeds 
 or other inutters/ enacts that 'it shall and may bo lawful for any 
 justic(! of the peace, notary public, or other officc-r now Ity law 
 aiilhori/ed to administer an oath, to take and rec(iivc the declara- 
 fion of any person voluntarily makin<f the same before him in the 
 form in tlie schedule to this Act annexed ; and if any declaration 
 so made shall be false or untrue in any material particular, the 
 ])erson wilfully making such false declaration shall be deemed 
 guilty of a misdemeanor.' (u) 
 
 Si'c. '2\. ' In any case where a declaration is substituted for an 
 oath under the authority of this Act, or by virtue of any power 
 or authority hereby given, or is directed and authorized to be made 
 and subscribed under the authority of this Act, or by virtue of 
 any power hereby given, any person who shall wilfully and cor- 
 ruptly make and subscribe any such declaration, knowing the 
 same to be imtrue in any material particular, shall be deemed 
 guilty of a misdemeanor.' (v) 
 
 With respect to the first of the statutes above set forth, namely, 
 the 5 Eliz. c. 9, as it is but little resorted to at the present time, on 
 account of prosecutions upon it being more difficult than at the 
 common law, and as it did not alter the nature of the offence, but 
 merclv enlarged the punishment, (?t') a brief statement of some of 
 the principal points decided upon its construction will probably bo 
 deemed sufficient. 
 
 In many instances an indictment Avill lie at common law, 
 when it will not lie upon this statute. Thus where a witness 
 for the King swears falsely, he cannot be indicted on the sta- 
 tute, (x) 
 
 It has been adjudged that a man cannot be guilty of perjury 
 within this statute, in any case wherein he may not possibly be 
 guilty of subornation of perjury within it; on the ground that 
 it is reasonable to give the whole statute the same construction ; 
 and that it cannot well be intended that the makers of it meant 
 to extend its purview farther as to perjury, which they appear to 
 have considered as the less crime, than to subornation of perjury, 
 Avhich they seem to have esteemed the greater : and, therefore, 
 since the clause concerning subornation of perjury, mentioning 
 only matters depending by writ, bill, plaint, or information, con- 
 cerning hereditaments, goods, debts, or damages, &c., does not 
 extend to perjury on an indictment or criminal information, the 
 clause concerning perjury, though penned in more general words, 
 has been adjudged to come under the like restriction. {>/) And it 
 
 {»<) See ank, vol. 1, \\ 107, for llie pim- 
 isliincnt, and sec the cases on this section, 
 post, p. 107. By sec. 19, the same fees 
 are payable on declarations as on the 
 oaths, in lieu of which they are made. 
 l?y sec. 10, the declaration is to be in the 
 form f.dlowing :— ' I, J. B., do solemnly 
 and sincerely declare, that and I 
 
 make this solemn declaration conscien- 
 tiously bclitvins:; the same to be true, and 
 by virtue of the provisions of an Act 
 niade and passed in the year of the 
 
 reign of his present Majesty, entitled an 
 Act' [here insert the title of this Act]. 
 
 {v) See ante, vol. 1, p. 197, for the pua- 
 
 ishment. The number of statutes, ■which 
 contain clauses making persons giving 
 false evidence, making fiilse affidavits, &c., 
 either liable to the punishment of perjury 
 or guilty of a misdemeanor, is so large 
 that it is conceived they would occupy 
 more space than the ini'requency of the 
 occasions, on which it may be necessary 
 to consult them, warrants devoting to 
 Iheir insertion ; all of them, therefore, 
 have not been inserted. C. S. G. 
 
 Ur) Buxton v. Gouch, 3 Salk. 269. 
 
 (.t) Id. ibid. 
 
 {>/) Bac. Ab. tit. Perjury (B). 1 
 Hawk. r. C. c. 69, s. 19.
 
 CHAP. I.] 5 Elk. c. 9. 33 
 
 lias also been resolved, tliat as the clause concerning subornation 
 of perjury relates only to perjury by tultnesses, that concerning 
 perjiuy extends to no other perjury than that of a witness ; and, 
 therefore, not to j)erjury in an answer in chancery; or in swear- 
 ing the peace against a man ; or in a presentiment by a homager 
 in a court baron, or in a wager of law, or in swearincj before com- 
 missioners of the King's title to lands, (z) And by the opinions 
 of some, a false affidavit against a man, in a court of justice, is not 
 within the statute, (a) But it is observed that if such affidavit 
 be by a third person, and relate to a cause depending in suit, 
 before the Court, and either of the parties in variance be grieved, 
 hindered, or molested, in respect of such cause, by reason of the 
 perjury, it may be strongly argued that it is within the purview 
 of the statute. (6) It seems to be the better opinion that a false 
 oath before the sheriff on a writ of inquiry of damages is within 
 the statute, (c) 
 
 It has been collected from the clause giving an action to the 
 party grieved, that no false oath is within the statute, which does 
 not give some person a just cause of complaint ; and, therefore, 
 that if the thing sworn be true, though it be not known by him 
 that swears it to be so, the oath is not within the statute, because 
 it gives no good ground of complaint to the other party, who 
 would take advantage of another's want of sufficient evidence to 
 make out the justice of the cause, {d) And upon the same ground 
 no false oath can be within the statute, unless the party against 
 whom it was sworn suffered some disadvantage by it : therefore, in 
 every prosecution on the statute, it is necessary to set forth the 
 record wherein the perjury is supposed to have been committed, 
 and to prove at the trial that there is such a record, either by 
 actually producing it, or by an attested copy ; and it is necessary 
 not only to set forth in the pleadings the point wherein the false 
 oath was taken, but to show also how it conduced to the proof or 
 disproof of the matter in question, (e) And if an action on the 
 statute be brought by more than one, it is necessary to show how 
 the perjury was prejudicial to each of the plaintiffs. (/) But it 
 seems tliat a perjury, which tends onlj^ to aggravate or extenuate 
 the damages, is as much within the statute as a perjury that 
 goes directly to the point in issue; and that perjury committed 
 in a cause wherein an erroneous judgment is given, is a good 
 ground of a prosecution ujjon the statute till the judgment bo 
 reversed, {g) 
 
 It has been holdcn that every indictment or action upon this iiulictmont on 
 statute must exactly pursue the words of it ; and, therefore, if it ^^^^ ^ ^''2- 
 allege that the defendant deposed such a matter falso et deceptive, *^" " 
 or falso et corrupte, or falso et voliintarie, without saying volun- 
 
 (z) 1 Hawk. r. C. c. Gil, s. 20. I5ar. ) IJac Ahr. tit. Perjury (B). 1 
 
 Abr. tit. Pcrjnr>i (15). Hawk. 1'. C c. 60, s. 23. 
 
 (a) 2 Koll. Ahr. 77. 1 Itoll. 79. 3 (f) Id. ibid. 
 
 Kcb. 345. (q) 1 Hawk. V. C. c. 60, s. 23. V,m\ 
 
 (b) 1 Hawk. r. ('. c. GO, s. 21. Abr. tit. Pcrjur)/ (B). In 1 Hawk. P. C. 
 {<:) Bac. Abr. tit. Perjury (B). 1 c. 60, .«. 4, there is a r/f^ whcthor perjury 
 
 Hawk. P. C. c. 60, s. 21. in a fourt, wlioso jirocoedings are al'ter- 
 
 {d) 1 Hawk. P. C. c. 60, -s. 22. I'ar. wnnls reversed by error, may not still bo 
 
 Abr. tit. Perjury (B). We have seen jjiuiished as perjury, notwithstanding 
 
 that this is otherwise at common law. such reversal ? See Keg. v. Meek, ante. 
 
 Ante, p. 2. p. 21. 
 
 vol,. III. p
 
 34 
 
 Of I'rrjuri/. 
 
 [book 
 
 V. 
 
 Any Court, 
 judge, justice, 
 &c. , iiiny direct 
 a pei-son guilty 
 of iJcrjury in 
 any evidence, 
 &c. , to be pro- 
 secuted, 
 
 and commit 
 the party, un- 
 less he enter 
 into recogni- 
 zance to ap- 
 pear and take 
 his trial, and 
 bind persons 
 to give evi- 
 dence ; 
 
 and give cer- 
 tificate of jiro- 
 sccution being 
 directed, 
 which shall be 
 sufficient evi- 
 dence of the 
 same. 
 
 iarie (i ri>n'iij>li\ it is not ^f<»(jd, thougli it conclude that sic 
 viilvnlorlinii, el atrmpturn coinmWil j)crjuriurii contra fonnarn 
 xhilnii, \i\ Also it is said to Ix; necessary expressly to show that 
 the defendant was sworn ; and that it is not suflicient to say tliat 
 lacto per »c sacra evanf/cUo drposvit. J3ut there is no need to 
 show whether the party took the false oath throujLjh the suborna- 
 tion of ;niothir, or of his own act, though the words of the statute 
 are, ' //" ]>ri:s()iis In/ .subornation, &c., or their oion act, (Oc, sludl 
 commit v'il fill perjury ; ' for there being no medium between the 
 branches of this distinction, they seem to be ])ut in ex ahv/udantl, 
 and to express no more than the law would have implied, and, 
 therefore, operate nothing. (A) 
 
 It seems that if perjury be committed tliat is within this 
 statute, but the indictment concludes not contra forraam statuti, 
 yet it is a good indictment at common law, but not to bring the 
 offender within the corporal punishment of the statute, (i) 
 
 By 14 & 15 Vict. c. 100, sec. 19 ' it shall and may be lawful for 
 the judges or judge of any of the superior Courts of common 
 law or equity, or for any of Her Majesty's justices or com- 
 missioners of assize, nisi prius, oyer and terminer, or gaol delivery, 
 or for any justices of the peace, recorder, or deputy recorder, 
 chairman, or other judge holding any general or quarter sessions 
 of the peace, or for any commissioner of bankruptcy or insol- 
 vency, or for any judge or deputy judge of any county court, or 
 any court of record, or for any justices of the peace in .special or 
 petty sessions, or for any sheriff or his lawful deputy before whom 
 any writ of inquiry or Avrit of trial from any of the superior courts 
 shall be executed, in case it shall appear to him or them that any 
 person has been guilty of wilful and corrupt perjury in any evidence 
 given, or in any affidavit, deposition, examination, answer, or other 
 proceeding made or taken before him or them, to direct such person 
 to be prosecuted for such perjury, in case there shall appear to him 
 or them a reasonable cause for such prosecution, and to commit 
 such person so directed to be prosecuted until the next session of 
 oyer and terminer or gaol delivery for the county or other district 
 within Avhich such perjury was committed, unless such person .shall 
 enter into a recognizance, with one or more sufficient surety or 
 sureties, conditioned for the appearance of such person at such next 
 session of oyer and terminer or gaol deliver}', and that he will then 
 surrender and take his trial, and not depart the Court without 
 leave, and to require any person he or they may think fit to enter 
 into a recognizance, conditioned to prosecute or give evidence 
 against sucli person so directed to be prosecuted as aforesaid, and 
 to give to the party so bound to prosecute a certificate of the same 
 being tlirected, which certificate sliall be given without any fee or 
 charge, and shall be deemed sufficient proof of such prosecution 
 having been directed as aforesaid ; and upon the production thereof 
 the costs of such prosecution .shall and are hereby required to be 
 allowed by the Court before which any person shall be prosecuted 
 or tried in pursuance of .such direction as aforesaid, unless such 
 last-mentioned Court shall specially otherwise direct ; and when 
 
 (h) 1 Hawk. r. C. c. 69, ss. 17, IS. 
 Bac. Abr. tit. Pcrjurif (B), and the 
 autliorities there cited. 
 
 (?) 2 Hale, 191, 19-2. See the cases 
 cited, vol. 1, p. Sil ; and see vol. 1, 
 p. 3.5.
 
 CHAP. I.] 
 
 Indictment, &c. 
 
 35 
 
 allowed by any such Court in Ireland such sum as shall be so 
 allowed shall be ordered by the said Court to be paid to the prose- 
 cutor by the treasurer of the county in which such offence shall 
 be alleged to have been committed, and the same shall be presented 
 for, raised, and levied in the same manner as the expenses of prose- 
 cutions for felonies are now presented for, raised, and levied in Ire- 
 land : provided always, that no such direction or certificate shall be 
 given in evidence upon any trial to be had against any person upon 
 a prosecution so directed as aforesaid.' 
 
 Sec. 20. 'In every indictment for perjury, or for unlawfully, wil- 
 fully, falsely, fraudulently, deceitfully, maliciously, or corruj^tly 
 taking, making, signing, or subscribing any oath, affirmation, decla- 
 ration, affidavit, deposition, bill, answer, notice, certificate, or other 
 writing, it shall be sufficient to set forth the substance of the 
 offence charged upon the defendant, and by what Court or before 
 whom the oath, affirmation, declaration, affidavit, deposition, bill, 
 answer, notice, certificate, or other writing, was taken, made, signed, 
 or subscribed, without setting forth the bill, answer, information, 
 indictment, declaration, or any part of any proceeding, either in 
 law or in equity, and without setting forth the commission or 
 authority of the Court or person before whom such offence was 
 committed.' 
 
 An indictment for perjury alleged to have been committed on a 
 trial before the Court of Quarter Sessions, averred in substance 
 that a certain indictment for misdemeanor, &c., came on to be tried 
 in due form of law, and was tried by a jury duly sworn, and the 
 prisoner, as a witness on the trial, was duly sworn, and contained the 
 other usual averments and conclusion. It did not state the nature 
 of the misdemeanor, or aver that the Court of Quarter Sessions had 
 authority to try the same or administer an oath on the trial. Held, 
 that the substance of the offence charged against the defendant was 
 sufficiently stated under this enactment, and that the indictment 
 was good on motion in arrest of judgment. (/) 
 
 Sec. 21. 'In every indictment for subornation of perjury, or for 
 corrupt bargaining or contracting with any person to commit 
 wilful and corrupt perjury, or for inciting, causing, or procuring 
 any person unlawfully, wilfully, falsely, fraudulently, deceitfully^ 
 maliciously, or corruptly to take, make, sign, or subscribe any oath, 
 affirmation, declaration, affidavit, deposition, bill, answer, notice, 
 certificate, or other writing, it shall be sufficient, wherever such 
 perjury or other offence aforesaid shall have been actually com- 
 
 (i) This statute is repealed by 30 & 31 
 Vict. c. 59. It was lamented by a 
 learned judge, that tlio party prosecuting 
 for peijury did not more f're([Ui'ntl}' avail 
 liimsclV ot' the 23 Geo. 2, c 11, made for 
 llie j)uriiose of obviating difiieulties in 
 ilrawing the indictments. In the case 
 in which this remark was made, the 
 commission at tlie admiralty session had 
 been unnecessarily set forth in the in- 
 dictment ; and it was a<lmitted tliat 
 wliere a ]iroscrutor undertakes to set out 
 in tlie indictment more of the proceed- 
 ings tlian he need under this statute, lie 
 must set them forth correctly ; but it 
 was holdeu that the commission at tlie 
 
 Extending the 
 23 Geo 2,c.ll, 
 s. 1, [k) to 
 other oti'ences, 
 and simplify- 
 ing indict- 
 ments for 
 perjury and 
 other like 
 offences. 
 
 admiralty session being set forth as di- 
 rected to A., B., and C, and otliers not 
 named, of which number A., B., and L\, 
 anunigst others, slionld always be mi'', 
 the Court must take it to mean that if 
 eitlier of the persons named of the iiuorum 
 were present, it would be sullicient. 
 Kexr. Dowlin, 5 T. \i. 311. 
 
 (/) K. V. Dunning, 40 L. J. M. C. 58. 
 ct, per Channell, B., 'This section is 
 almost identical in terms with see. 1 of 
 23 Geo. 2, c. 11, except tliat it omits the 
 words "averring smh t'ouit or ])erson or 
 persons to liave a competent authority to 
 administer the same." ' 
 
 Extending the 
 23 Geo. 2, 
 c. 11, s. 2, as 
 to form of in- 
 dictments for 
 subornation of 
 perjury and 
 other like 
 offences.
 
 86 
 
 On trials for 
 perjury nn<l 
 8ul)oriiation a 
 certificate of 
 the trial of the 
 indictment on 
 which the jjcr- 
 jury was com- 
 jnitted suffi- 
 cient evidence 
 of such trial. 
 
 Several per- 
 sons not to be 
 joinet] in an 
 indictiuent for 
 
 perjury. 
 
 Ycnue. 
 
 Of Pcrjiinj. [nooK V. 
 
 iiiit.Ird, to !illfg(; tlic oir.'Mcc of iIk; p(;rs(jn wlio ncfiially conniiitted 
 siurli pcrjuiy or oilier offence in the maiiiier Ik iciiilicfore men- 
 tioned, and then lo aU<'<(e that tlio (h^feiidant unhiwlully, wilfully, 
 and corruptly did cause and procure the said person the said offence, 
 ill nianiit r and I'orni aforesaid, to do and commit; and wherever 
 such perjury or other offence aforesaid shall not have been 
 actually committed, it shall be sufficient to set forth the substance 
 of the offence charged upon the defendant, without setting forth or 
 averring any of the matters or things hereinbefore rendercfl un- 
 necessary to be set forth or averred in the case of wilful and cor- 
 ruj)t perjury.' 
 
 Sec. 22. 'A certificate containing the substance and effect only 
 (omitting tlie formal part) of tbe indictment and trial for any 
 felony or misdemeanor, purporting to be signed by the clerk of 
 the Court or other officer having the custody of the records of the 
 Court where such intlictment -was tried, or by the deputy of such 
 clerk or other officer (for which certificate a fee of six shillings and 
 cightpence and no more shall be demanded or taken), shall upon 
 the trial of any indictment for perjury or subornation of perjury 
 be sufficient evidence of the trial of such indici.ment for felony or 
 misdemeanor, without proof of the signature or official character of 
 the person appearing to have signed the same.' 
 
 It has been hulden, on motion in arrest of judgment, that several 
 persons cannot be joined in one indictment for perjury, the crime 
 being in its nature several, (^i) But this does not apply to sub- 
 ornation of perjury, (n) 
 
 With respect to the venue in an indictment for perjury, it may 
 be brieriy observed that the parish or place, unless used as giving 
 some specific local description, will not be material, and that it will 
 be sufficient to show the offence committed anywhere within the 
 county. The statement of venue in the margin is now suffi- 
 cient, {t) In a case w'here perjury had been committed in the 
 booth-hall within the limits of the city of Gloucester, which is a 
 county of itself, on the trial of a cause before a jury of the county 
 at large, it was holden tliat the indictment might be found and 
 tried by juries of the county at large, (n) And where perjury had 
 been committed on the trial of an indictment at the Worcester 
 quarter sessions, Avhich Avere held in the Guildhall at Worcester, 
 which is situate in the county of the city of Worcester, it was held 
 that the- indictment, which was found by the gi'aud jury of the 
 county of tlie city of Worcester, was good, as it was preferred in the 
 county where the oath was actually taken, (x) A sufficient venue 
 
 (m) lle.x V. I'hilips, 2 Str. 921. 
 
 (»i) Keg. V. Ehodes, 2 Ld. Kayin. 886. 
 In Keg. V. (ioodlellow, C & M. 569, one 
 defendant was indicted for perjury, and 
 tlic other for suborning liim to couiniit 
 the perjury, and no objection taken to 
 both being included in the same indict- 
 ment ; and it should seem none could 
 have been successfully taken on that 
 ground, a.s it is like the case of principal 
 and acce.s.sory before the fact, included in 
 the same indictment. C. S. G. 
 
 (0 See tlic 14 & I.t Vict. c. 100, 
 s. 23, vol. ], ji. 24. See Harris's case. 
 
 2 Leach, SCO ; Kcx v. Wooilward, K. & 
 M. C. C. R. 323, vol. 2, p. i'24. 
 
 (u) Rex I'. Gough, Dougl. 7yi. In this 
 case a charter had made Gloucester a 
 county of itself, reserving only the trial 
 of matters arising in the countj' at large 
 witliin Gloucester as before. The judges 
 intimated their opinions that tlie indict- 
 ment might be in either county, but they 
 were clear it might be in the county at 
 large. 
 
 (.v) Rex r. Jones, 6 C. & T. 137, 
 Tindal, G. J.
 
 CHAP. I.J 
 
 Indictment, (&c. 
 
 37 
 
 was holden to be laid on the act of taking the false oath in a case 
 where perjury was assigned on an affidavit of an attorney of the 
 Court made in answer to a summary application against him, and 
 where it was objected that it was not stated where the Court was 
 holden when the original aj^plication was made, or when the rule 
 Avas made, calling upon the defendant to answer the charge, it 
 being expressly averred that the defendant ' then and there before 
 the said Court v/as duly sworn.' {y) In the instance of making an 
 affidavit in the country, the party is not to be indicted where the 
 affidavit may happen to be used, but in the county where the 
 offence was completed, by making the false oath. (5) 
 
 The indictment need not state the time at which the offence was Allegation of 
 committed in any case where time is not of the essence of the f""5 '" tli« 
 onence. (a) Where it js not material, it need not be averred ; and 
 if averred, it may be rejected. (6) In a case where an indictment 
 for perjury, charged to have been committed in the defendant's 
 answer to a bill of discovery filed in the Court of Exchequer, 
 alleged that the bill -was filed on a day specified, it was holden that 
 the day was not material, as it was not alleged as part of the 
 record : and, therefore, that it was no variance, though the bill, 
 when produced, appeared to be entitled generally of a preceding 
 term, (c) Where the perjury was assigned in answer to a bill 
 alleged to have been filed in a particular term, and a copy pro- 
 duced was of a bill amended in a subsequent term, by order of the 
 Court, it was held to be no variance, the amended bill being part 
 of the original bill, {d) So it has been held on an indictment for 
 perjury committed on the trial of a cause at nisi prius to be no 
 variance that the nisi prius record states the trial to have been on 
 a day different from that stated in the indictment, there being no 
 express reference in the indictment to the record, {e) 
 
 It is proper to make such a statement by way of inducement as Necessary 
 will be sufficient to explain the assignment of perjury, and make it ^|ie*°"||i"t.'" 
 intelligible and consistent. And such statements in the indictment ment. 
 should be made with accuracy. An indictment for perjury stating Variances. 
 a bill of Middlesex as ' issuing out of the office of the chief clerk 
 assigned to inrol pleas in the Court,' &c., has been holden to be 
 bad. (/) And if the indictment state that at the assizes, holden 
 before justices assigned to take the said assizes, the oath was taken 
 before A. B., one of the said justices, the said justice then and 
 there having power, &c., it will be a fatal variance if the oath was 
 administered when the judge was sitting under the 'commission of 
 oyer and terminer and gaol delivery, {(j) 
 
 {]/) Rex V. Crossley, 7 T. R. .31.'5, 
 ante, p. 3. 
 
 (c) ]}y Lovil Kcnyon, C. J. Id. ibid. 
 
 (a) 14 & 15 Vict. c. 100, s. 24, vol. 1, 
 p. 35. Rex V. Aylett, 1 T. R. 69. In 
 Reg. r. Kiinpton, 2 Cox, C. C. 296, Parke, 
 B., doubted whether an averment of the 
 materiality of a thing occurring on 
 ' Monday, the 29tli of June, in the year 
 1846,' was suflieient after verdict, as the 
 proper course is either to state the year 
 of our Lord, or the year of the monarch's 
 reign ; and he left the prisoner to his 
 writ of error. 
 
 {b) Rexr. Aylett, 1 T. R. 70, 71. 
 
 (c) Kex V. Ilucks, cor. Lord Ellenbo- 
 rough, C. J., 1 Stark. R. 521 And see 
 Rastall i: Straton, 1 If. H. 49. "Wood- 
 ford }\ Ashley, 2 Campb. 193, and 1 
 Stark. Crim. Plead. 122. 
 
 01} Rex r. Waller, Mich. 6 Geo. 1, 
 3 Stark. Evid. 856. 
 
 {>') Itex V. Coppard, Moo. <fe M. 118. 
 3 C. & P. 59, per Lord Tenterden, C. J., 
 on the authority of Purcelli;. Macnamara, 
 9 East, 156. 
 
 (/) Rex V. Scole, Pcake, N. P. R. 112, 
 Lord Kenyon, C. J. 
 
 ('/) Rex V. Lincoln, MS. Bay ley, J., 
 ami K. & K. 421.
 
 38 
 
 Of Perjury. 
 
 [book v. 
 
 A trial fi.r 
 
 \\\\V. llll<';^fil 
 
 to liHV(! taken 
 l)lacL' III tlio 
 nuHizcH. 
 
 Imperfect 
 statement of 
 tlie authority 
 of judges of 
 gaol delivery. 
 
 Assizes and 
 gaol delivery 
 incorrect. 
 
 Substance and 
 effect. 
 
 All iiHlicliiuMit for poijury alleged that at the assizes holdcn for 
 tlu; coiiiity of StufTonl, on &c., at &c., before Sir J. P. &c., 'jus- 
 tices assi'Mied to t.ike the assizes in and for the said county,' one 
 ( 'onis was tried for a rape, and that the prisoner on that trial 
 swore, &c. The record of the former trial stated it to have taken 
 place ' at the assizes and general session of oyer and terminer.' 
 It wa.s objected that the indictment was bad, as an indictment for 
 rape could not be tried under the commission of a.ssize. Greaves, 
 Q. C, doubted whether the indictment was necessarily bad ; as the 
 indictment for rape miglit have been removed l)y cerfiorari, and 
 tried on the civil side ; in which case the allegation that it was tried 
 at the assizes might suffice. (Jc) 
 
 It was further objected that there was a variance, as the record 
 produced showed that the trial had taken place in the crown 
 court, and thereupon an amendment of the indictment was prayed. 
 Greaves, Q. C, consulted Williams, J., and they agreed that there 
 was a variance, but that there was no power to amend the indict- 
 ment under the 9 Geo. 4, c. 15, as the allegation was the statement 
 of a fact, viz. the Cotn't before wdiich the trial took place, and was 
 not the ' recital or setting forth ' of ' any matter in writing or print,' 
 within that Act. (^) 
 
 An indictment alleged that a trial took place at a session of gaol 
 delivery before Lord Campbell, chief justice of our lady the Queen, 
 assigned to take pleas before the Queen herself, and Sir E. V. 
 Williams, knight, one of the justices of our said lady the Queen of 
 her Court of Common Pleas, assigned to deliver the said gaol of the 
 prisoners therein. It was objected that the words ' assigned to 
 deliver, &c.,' did not apply to Lord Campbell, but only to Mr. J. 
 Williams ; but on its appearing that the record had ' and others 
 their fellow justices assigned to deliver,' &c., Talfourd, J., directed 
 the indictment to be amended, (j) 
 
 Where an indictment for perjury alleged the former trial to 
 have taken place ' at the assizes and general session of the de- 
 livery of the gaol/ it was objected that this w^as an impossible 
 combination of civil and criminal jurisdiction, and Talfourd, J., 
 ordered the word assizes to be struck out of the indictment. (A*) 
 
 Where an indictment for perjury, committed in a written 
 
 (h) See the precedents, 2 Chitt. C. L. 
 366, 367 {a), of indictments for perjury 
 on the trial of causeg at the assizes, which 
 are in the form of this indictment ; 
 though, according to 3 131. C. 60, the 
 commission of assize is to take the ver- 
 dict of a peculiar species of jury, called 
 an assize. Blackstone also speaks of a 
 commission of assize being issued each 
 circuit ; but no such commission is now 
 issued, and the cases tried on the civil 
 side are tried under the commission of 
 assize. And this is according to what 
 liOrd Holt said (Bullock %: Parsons, 2 
 Salk. ii>i), ' The authority of the judge 
 of nisi prius is not by the distringas, but 
 by the commission of assize ; for it is the 
 13 Ed. 3, c. 30, which gives the trial by 
 nisi jn-ius, and by that statute the trial 
 by nisi prius is given before justices of 
 assize.' It is clear, therefore, that where 
 
 perjury is committed either on a civil or 
 criminal trial at nisi prius on circuit the 
 trial ought to be alleged to have taken 
 place before tlie justices assigned to take 
 the assizes. C S. G. 
 
 (?) Keg. t'. Fairburn, Stafford Sum. 
 A.SS. 1850. MSS. C. S. G. The prisoner 
 was acquitted, or the points would have 
 been reserved. It seems clear that the 
 amendment in such a case might now be 
 made under the 14 &15 Yict. c. 100, s. 1, 
 vol. 1, p. 52. 
 
 ij) Keg. V. ChUd, 5 Cox, C. C. 197. 
 Spr. Ass. 1851. 
 
 {L-) Keg. V. Child, 5 Cox, C. C. 197. 
 The copy of the record described the court 
 as a general session of oyer and terminer 
 and gaol delivery, and Talfourd, J., or- 
 dered the indictment to be amended 
 accordingly.
 
 CHAP. I.] 
 
 Indictment, tOc. 
 
 39 
 
 deposition before a magistrate, in which deposition a word neces- 
 sary to the sense had been omitted, set out the substance and 
 effect of the deposition, and supplied a word which the sense re- 
 quired, as though it were actually in the deposition, the variance 
 Avas holden to be fatal. (/) And where a count in an indictment 
 undertakes to set out continuously the substance and effect of 
 what the defendant swore upon his examination, it must be 
 proved that in substance and effect he swore the whole of what is 
 set out, though several distinct assignments of perjury are made 
 thereon, (^i) 
 
 Where pcijury is assigned upon several parts of an affidavit, 
 and such parts are set out continuously, it is no variance if such 
 parts are separated by other intervening matter, provided what 
 intervenes does not vary the effect of what is set out. An in- 
 dictment for perjury alleged to have been committed in an 
 affidavit, set out various matters deposed to as if they had been 
 continuous in the affidavit, but on the production of the affidavit, 
 it appeared that the parts set out in the indictment Avere not con- 
 tinuous, but were separated by the introduction of other matter. 
 It Avas contended that there was clearly a variance between the 
 affidavit set out in the indictment and that given in evidence. 
 The proper mode of stating it was, ' in one part whereof the de- 
 fendant swore such and such things, and in another part whereof 
 he swore certain other things.' In actions or indictments for libel 
 such a variance would clearly be fatal. Abbott, C. J., ' In actions 
 or indictments for libel the tenor must be set out ; in indictments 
 for perjury it is sufficient to state the substance and effect of the 
 false oath ; the variance pointed out is therefore immaterial.' (n) 
 And the same has been held as to evidence given upon a trial. 
 An indictment for perjury committed on the trial of an action for 
 assault and battery, charged the defendant with having sworn that 
 the plaintiff" spit in the defendant's face before the defendant 
 struck him, and that he, the defendant in the indictment, had not 
 said certain words, and assigned perjury on both statements. The 
 evidence given by the defendant on the former trial contained 
 all the matter charged as perjury, but other matter intervened 
 between the statement as to the spitting and that as to the Avords. 
 It Avas objected that this Avas a variance, as the evidence charged 
 as perjury in the indictment appeared to have been given con- 
 tinuously ; but Abbott, C. J., lield it was iminaterial, as Avbat 
 intervened did not vary the effect of what was stated, (o) 
 
 In an indictment for perjury committed before a select corn- 
 
 False state- 
 ments wliether 
 in an affidavit 
 or in evidence 
 may be set 
 out continu- 
 ously, though 
 matter inter- 
 vene, if such 
 matter do not 
 vary their 
 eB'ect. 
 
 ilode of stat- 
 
 (l) Ilex c. Tiiylor, 1 Caaiplj. lOi. 
 Ellcnhorough, C. J. The deposition 
 should have been set oiit literally, and 
 the mcaninff explained by an iiiniKmlo. 
 The indictment stated that the defendant 
 Avent before a justice of the peace, and 
 swore in substance to the clTcct following, . 
 that is to say, &e., and part of the de- 
 position so set forth was that a person 
 therein named assaulted the deponent 
 with an umbrella, and, at 1/te.same linw, 
 threatened to shoot her with a pistol ; 
 but when the deposition was produced it 
 appeared that, after stating the assault 
 Avitli the umbndla, it proceeded thus, 
 
 ' and at the same thnialeueJ to shoot,' 
 &c., omitting the word time. 
 
 (m) Kex r. Leefe, 2 C'anipb. 134. Lord 
 Ellcnborough, C J., post, p. 40. It ap- 
 pears, however, that in Keg. v. Rhodes, 
 2 Lord Kayni. 886, it was holden, upon 
 an indictment containing only one count, 
 that although all the assignments of ]ier- 
 jury l>ut one were bad, judgment should 
 not be arrested. And see (.'om[iagiion r. 
 ]\[artiu, 2 Black. R. 790. 
 
 (?(,) Rex V. C'allanan, 6 B. & C. 102. 
 (o) Kex V. Solomon, K. .'^c M. N. I'. K. 
 2.j2.
 
 40 
 
 inj? election 
 rotoriiM. 
 
 Of I\rj>iri/. 
 
 [book 
 
 Conniiiltoo of 
 tlio House of 
 Commons. 
 
 Procccilings 
 in cliancery. 
 
 inittcf 111 
 W!IS liultl 
 
 (Inly issii 
 
 I lie lloiiso of" Coiiiiuoiis, it was avciT(;(l tliat tlio election 
 i\ virtiu- of ;i. rcrtaiti prcicopt of tlio liij^li sliciiff, by him 
 li to the liiiililV of till' l)(jrouf(li of Now Million; and it 
 was^liulilcii thai this was iii»l mailer of description, and tiiat the 
 i)r()diicli(»M of a piece|)l, which in fact issued to the liailif!" of the 
 Ixtroiiuh of New iMall(jM, though directed to the bailiff of the 
 borou'di of Malton, was sufiicieiit. But the indictment also stated 
 that A. and Ji. were returned to serve as burgesses for the said 
 borough of New Malton ; and this was considered as a description 
 of the indenture of return, in which the borough was described 
 as the borough of Malton ; and the variance was liolden to be 
 fatal. (2>) But where an information for perjury committed before 
 a select committee of the House of Commons, stated that the 
 conunitlec was chosen to tiy and determine the merits of an 
 election, and that the committee were sworn ' to try the merits of 
 the petition referred to them ;' it was held that the conmiittee was 
 ■well described, although by the 10 Geo. 3, c. 16, s. 13, they were 
 to be a committee ' to try and determine the merits of the return 
 or election.' {q) 
 
 An indictment may be supported upon an answer in a court of 
 equity, though the answer is not correctly entitled and the name 
 of one of the parties be mistaken. Thus where an indictment 
 alleged that Francis Cavendish Aberdeen and others exhibited 
 their bill in the exchequer, &c., and, on the production of the bill, 
 the complainants on the face of it purported to be J. C. Aberdeen, 
 and others, it was hoklen that this was not a variance, and that 
 it Avas competent to the prosecutor to prove, by other means than 
 by the bill itself the allegation tliat Francis Cavendish Aberdeen 
 did, in fact, exhibit his bill. ()•) And it Avas further holden not to 
 be a variance, although after tlie allegation in question, and after 
 setting out such parts of the bill as were necessary, these words 
 were added, ' as appears by the said bill, &c., filed of record ;' on 
 the ground that these words referred to the last antecedent, and 
 could not be considered as incorporated with the prefatory allega- 
 tion that Francis Cavendish Aberdeen exhibited his bill, {rr) And 
 in an indictment for perjury committed in an answer to a bill in 
 chancery, wdiere the bill was stated to have been filed by A. 
 against B. (the defendant in the indictment) and another, though 
 in fact it was filed against B., C, and I)., the variance was holden 
 not to be fatal ; the perjur}'^ being assigned on a part of the 
 answ^er which was material between A. and B. (.s') So where an 
 indictment for perjury in answer to a bill in chancery described 
 the bill as exhibited against three persons only, viz., A., B., and 
 C, and the bill when produced appeared to be against A, B., 
 and D. ; Abbott, C. J., held that this was not a fatal variance, 
 and that the bill produced must be considered as the same de- 
 scribed in the indictment. If the indictment had professed to set 
 forth the title of the bill, such variance would have been fatal, 
 but the bill was substantially described, and that was sufficient, {t) 
 
 {p) Rex r. Loefe, 2 Canipb. 134. 
 
 {q) Rex r. Dujin, 1 Y)o\\\. & R. 10. 
 
 (;•) Rox V. RoiHT, I) M. & S. 327. 1 
 Stark. K. 518. Lord Ellcnboroiigli, 
 C. J. 
 
 (rr) Id. ibid. 
 
 [s) Rox r. Benson, 2 Canipb. 503. 
 Lord Ellenborough, C. J. 
 
 (0 Rex r. Rowell, R. & M. X. P. R. 
 101.
 
 CHAr. 
 
 '•] 
 
 Indictment, &c. 
 
 41 
 
 A county 
 court. 
 
 Issue is nomcn 
 collectivum. 
 
 So if an indictment for perjury state that there was a suit depend- Ecclesiastical 
 ing in the Ecclesiastical Court between W. Peacock and R. Miles, Court. 
 and the proceedings in that Court state that the suit was between 
 W. Peacock and R. Miles, the elder, this is no variance, (it) 
 
 Where an indictment alleged that an action was pending ' in 
 the Whitechapel county court of Middlesex, holden at the court- 
 house in Osborn-street, Whitecliapel, in the county of Middlesex, 
 &c., before J. M., then and there being the judge of the said 
 court ;' and it was objected that the description ought to have 
 been ' the county court of Middlesex holden at Whitechapel, in 
 the county of M.,' in pursuance of the 9 & 10 Vict. c. 95 ; the 
 Court of Exchequer Chamber held that it did sufficiently appear 
 that the court was held in pursuance of that statute ; for it was 
 alleged to be a county court, and held before a single judge, {v) 
 
 It has been holden that, though there be two counts in the 
 original proceeding, an averment that an issue came on to be 
 tried is not a variance, {w) And where an indictment for perjury 
 alleged that a certain issue in a plea of debt came on to be tried, 
 and that, upon the trial of the said issue so joined between the 
 parties, certain questions became material, &c., but by the record it 
 appeared that three issues had been joined on three pleas ; it was 
 objected that it was impossible to know to which of them the 
 averment of materiality referred ; but Erie, J., held that ' issue ' 
 was nomen collectivum, and overruled the objection. (,r) 
 
 And a variance between the affidavit actually sworn, and in 
 which the perjury was charged to have been committed, and the sp<^|''"o 
 affidavit stated in the indictment, by leaving out the letter s in 
 the word understood, was holden to be immaterial, {y) In a 
 subsequent case, the defendant was tried on an indictment for 
 perjury, committed in giving evidence as the prosecutor of an 
 indictment against A. for an assault ; and it appeared that the 
 indictment for the assault charged that the prosecutor had re- 
 ceived an injury, ' ivlierehy his life was greatly despaired of; but 
 that in the indictment for perjury, the indictment for t/ie assault, 
 being introduced in these words, ' which indictment was presented 
 in manner and form folloiving, that is to say, and then set forth 
 at length, did not recite the above-mentioned passage correctly, 
 but omitted the word ' despaired ;' upon which the counsel for the 
 defendant admitted that it was not necessary to have recited the 
 indictment for the assault ; but he contended that the prosecutor, 
 by the words ' in manner and form folloiving, that is to say, had 
 undertaken to recite it ; and that, having so done, he Avas bound to 
 set it forth verbatim. But the learned judge overruled the objec- 
 tion, and said that the word ' tenor ' had so strict and technical a 
 meaning as to make a literal recital necessary ; but that by the 
 words 'in manner and form folloiving, thxit is to say,' nothing- 
 more was made requisite than a substantial recital ; and that the 
 
 ariance in 
 
 {n) Rex V. Bailey, 7 C. & P. 201, 
 Williams, J. See Kex v. Peace, 2 \). & 
 A. 579. 
 
 \v) Lavey v. Peg. 2 Den. C. C. 504. 
 See the indictment, 3 C. & K. 26. 
 
 {w) Peake's N. P. C. 37. 
 
 (x) Reg. V. Smith, 1 F. & F. 98. 
 
 {y) Beech's case, 1 Leach, 133. The 
 
 inspection of a roconl is within the pecn- 
 liar piovince of the Court ; and, tlu-re- 
 fore, if a douht arise as to any word upon 
 a record, the C'onrt and not the jury must 
 resolve tliat douht. By l^ord Kllen- 
 borough, (.". J., in Rex r. llucks, 1 Stark. 
 K. 521.
 
 42 
 
 Tlu! MilmlAnro 
 (if eviili'iii'o 
 civet) in 
 WcIhIi tuny \>o 
 Hi't iiiit ill 
 KiiKii><li in the 
 iiiili('tiu(.'iit. 
 
 Of Pcrjimj. 
 
 [book 
 
 Mode of 
 charging mat- 
 ter sworn in 
 a joint ilcijosl- 
 tion. 
 
 Averment of a 
 conviction. 
 
 Viiiianco tliciM-forf, in llu; picseiii case, was only matter o/yovr/i, 
 and (lid n(tt vilialc tlio indictment, {z) 
 
 An indict niont fur perjury alleged tliat the prisoner falsely 
 swore ' in substance and to the effect following,' and then set out 
 hi toliilcm rt'ihln and in the first person a deposition of the pri- 
 soner in the English language, but it a])y)eared that the prisoner 
 was examined in Welsh through an interpreter, and that his 
 examination was translated into English, taken down in wi'iting, 
 and sign(Ml by the prisoner ; and this written deposition was set 
 out in the indictment. It was submitted that the evidence ou^ht 
 to have been set out in Welsli with a translation in English. 
 Williams, J., 'In perjury it is only necessary to prove "the sub- 
 stance and effect." The indictment charges that the prisoner 
 deposed and swore in substance and to the effect there stated. It 
 was not necessary in this indictment to have set forth the deposi- 
 tion in iofidem verbis ; still the substance and effect of what the 
 prisoner swore in the Welsh language may be proved ; and if that 
 is in substance and to the effect the same as is stated in this 
 indictment, that will be sufficient,' (a) 
 
 Where an indictment for perjury stated that on an inquiry 
 ])efore two justices of the peace on an information under an excise 
 statute, it became a material question where a certain individual 
 was at 4 A.M. on the 2nd of July, and that the defendant swore 
 she had been in his company from 2 in the same morning until 
 4, and on the trial for perjvuy the evidence was that she had 
 said she had been in his company from 11 until 4.30 ; Parke, J., 
 doubted whether the evidence supported the allegation, but on 
 conference with BoUand, B., he inclined to think it did, (6) 
 
 If an indictment charge that the defendant swore in substance 
 and effect in a deposition, and the deposition be made jointly by 
 him and his wife, bis statement following that of his wife, it wall 
 not be a variance. The indictment stated that upon a certain 
 information upon oath, entitled 'the information,' &c., the de- 
 fendant wilfully deposed in substance and to the effect following : 
 ' the defendant (meaning C. D.) I am certain is one of the persons 
 that assaulted and ill-treated my wife,' &c. The information 
 began, 'The information and complaint of Jane, the wife of C. E. 
 Grindall, and of the said C. E. Grindall, made an oath,' &c. ' And 
 first, the said J. Grindall for herself saith that the defendant is 
 one of the persons who assisted W. J. S. and others in handcuffing 
 and otherwise assaulting me on, &c.' (Signed) ' J. Grindnll.' 
 ' And the said C. E. Grindall sworn says, the defendant, I am 
 sure, is one of the persons that assaulted and ill-treated my wife,' 
 &c. It was objected that there was a variance, as the indictment 
 set forth the deposition as sworn by the defendant alone ; but it 
 Avas held that, as Avhat the defendant swore was set out in sub- 
 stance, it was sufficient, (c) 
 
 Where an indictment alleged that the defendant committed 
 l)erjury on the trial of one B., and that B. was convicted, and it 
 appeared by the record when produced that the judgment against 
 
 (z\ May's case, cor. Bnller, J., 1799. 
 The learned jiuljijo cited Beech's case, 
 nntf, note {>/). Sec Rex v. Spencer, K. & 
 M. N. r. IJ. 97. 1 C. & P. 2t30. 
 
 (a) Eeg. V. Thomas, 2 C. & K. 806. 
 (l>) Auonynious, 1 Lew. 271. 
 (c) Eex f. Griudall, 2 C. k V. 563. 
 Abbott, C. J.
 
 CHAP. I.] Indictment, dc. 43 
 
 B. had been reversed upon error after the bill of indictment 
 against the defendant had been found, it was held that this was 
 no variance, (d) 
 
 Where an indictment for perjury alleged that an officer of excise Variance 
 went before two justices of the peace, and gave the said justices between in for- 
 te understand and be informed that 'W. Stock, victualler, being nation set out 
 a hreiver of beer or ale for sale,' did neglect to make a declara- duced. 
 tion of the quantity of beer brewed ; and the words in italics were 
 not found in the information when produced ; it was held that 
 this was a fatal variance, as the meaning of the indictment was 
 that ' Stock beivg a breiuer neglected.' (e) 
 
 If an indictment use a word of equivocal meaning, the meaning Variance, 
 in which it is used must be collected from the context of the sen- ^y'"^^'° ^'^ ^^' 
 tence in which it occurs. An indictment for perjury alleged that an*^ equivocal 
 a commission of bankrupt was issued against the defendant, under term, its 
 which he was duly declared bankrupt, and that afterwards he meaning is to 
 preferred a petition to the chancellor, stating (amongst other f^.^,^ ti^g ^on- 
 things) that a commission had issued, that the petitioner, on the text, and by 
 1st of March, 1821, was declared bankrupt, and that at the several tliatitisto be 
 meetings before the commission the petitioner declared that the bill ^vhetbei"or not 
 of exchange (on which the commission had issued) was not due, tbcre be 
 &c. But the allegation in the petition was that at the several variance, 
 meetings before the commissioners the petitioner declared that the 
 bill was not due. It was contended that the words 'commission ' 
 and ' commissioners ' were not convertible terms ; that the word 
 ' commission ' denoted the authority under which the parties acted, 
 and therefore the variance was fatal. Abbott, C. J., ' The objec- 
 tion is that there is a variance between the petition set forth in the 
 indictment and that which was given in evidence at tlie trial. 
 Now, in a proceeding of this kind it was not necessary to set 
 out in the indictment verbatim the tenor of the petition ; it is 
 sufficient if it be set out truly in substance and effect. The 
 petition, as set out in the indictment, purports that at the several 
 meetings before the commission, the petitioner declared in the 
 hearing of the said assignee that the bill of exchange given to 
 G. Drowley for the debt was not due at the time when he struck 
 the docket. Now the allegation in the petition, which was proved 
 in evidence, was that at the several meetings before the commis- 
 sioners the petitioner declared so and so, and the question is 
 whether that is a fatal variance. The word commission is one of 
 equivocal meaning; it is used either to denote a ti'ust or authority 
 exercised, or the instrument by which the authority is exercised, 
 or the persons by whom the trust or authority is exercised. And 
 if it ma}^ denote the persons exercising the authority, wc must 
 collect from the context of the sentence in which the words 
 "before the commission" occur, and of the other pnrts of the 
 petition, whether it was used in that sense or not.' After stating 
 the indictment the chief justice proceeded, ' Now, if the word 
 commission as there used was intended to denote the commission 
 itself, it would follow that the several meetings took })lace before 
 any commission issued; but that is impossible, because in that 
 
 {d) Pvog. V. Mock, 9 C. & P. 513. Sec (c) Rex v. Leech, 2 Man. & Ey. 119. 
 
 Eeg. V. Burraslon, povt, p. CO.
 
 I Of rerjwrij. [book v. 
 
 case the jjotitioiior could uoi liavc made his declaration in the 
 hearinj^ of the said a.s.si<fnee. 'J'lien, if that cannot be the mean- 
 ing of the woril connnissioj), we must construe it in the other 
 sense, which it is capable of hearing, namely, as denoting the i)er- 
 sons to whom the authority was given ; and if it he so construed, 
 tlii're was no vaiiaiice be-tween the petition set forth in the indict- 
 ment and that which was given in evi(k'nce ; the conse([uence is, 
 that there must be judgment for the crown. (/) 
 The {'..lilt iii:iy The i) (leo. 4, c. J 5, s. 1, authorizes the Court to cause the record 
 in .my indictment for any misdemeanor, when any variance sliall 
 m.Icmi!" appear between any matter in Avriting or in print produced in 
 evidence, anil the recital or setting forth thereof upon the record, 
 to be amended. This Act and the cases up(jn it, as well as the 
 
 inlor Viiri- 
 aiucs to lie 
 
 .'IIIIU 
 
 14 & 1.") Vict. c. 100, will be found in vol. 1, p. 
 
 .52. 
 
 Avcimeiit tli.it In a case where a complaint having been made ore tenus by a 
 tiiu oomiitiiiit solicitor, before the chancellor in the Court of Chancery, of an 
 u.s i.ar. , I c. j^j.j.gj.j. jjj returning home after the licaring of a cau.se, the indict- 
 ment stated that, ' at and upon the hearing of the said complaint,' 
 the defendant deposed, &c. ; and this was holden to be a sufficient 
 averment that the complaint was JiearJ. (h) And it has been 
 hulden that an indictment for perjur}^ assigned on an affidavit 
 sworn before the Court, need not state that the affidavit was filed 
 of record, or exhibited to the Court, or in any manner used by the 
 party, (i) _ 
 ''f!-!i ^^''^"/, -^^^ indictment for perjury may state the trial to have taken 
 
 jille^cd to" place either before the judge, who in fact tried the case, or before 
 liave taken the judgcs before whom it is considered in point of law to have 
 i''''^''- taken place. Therefore an indictment for perjury, stating the 
 
 trial to have been before two judges, but the oath to have been 
 taken before one of them, is good. The indictment alleged the 
 trial before both judges then in commission, and then alleged that 
 the prisoner was sworn before one of the justices aforesaid ; and, 
 on a case reserved on the question wliether the oath ought not 
 to have been alleged to have been taken before both justices, 
 the judges were unanimously of opinion that the conviction was 
 right, ij) So an indictment for perjury on the trial of a cause at 
 the sittings after terra, stating the trial to have been before the 
 puisne judge, who in fact tried the cause, is good, although the 
 postea states the trial to have been before the chief justice. An 
 indictment for perjury, charged to have been committed on a trial 
 at the sittings after term in London, alleged the trial to have taken 
 place before Littledale, J. ; and on producing the record it did not 
 appear before whom the trial took place, but the postea stated it 
 to have been before the lord chief justice ; in point of fact, how- 
 ever, the trial took place before Littledale, J. ; and it was objected 
 that this was a variance ; it was answered that there was no refer- 
 ence in the indictment to the record, and i\o jii'out patet i^er re- 
 conJinn : it was merely stated that the trial took place before Little- 
 
 (/) Hex v. Dmliuan, 4 B. & C. 850. Tlead. 121. And see 3 Stark. EviJ. 857, 
 
 (/i) Wgx v. Aylett, 1 T. R. 70. citing Hex v. Taylor, Skin. 403, where it 
 
 (/) lu'x f. t'rossley, 7 T. R. 815. Nor was liel-1 that the bare making of the 
 
 is it necessary to prove such facts. Id. artidavit witliout producing or using it is 
 
 ibid. And see the cases, post, p. PS. not suHicicnt. 
 
 Rut it is otherwise wlien the proceeding {j) Rex r. Alford, 1 Leach, 150. See 
 
 is under the statute of Eliz. Stark. Crim. this case, 2>ost, p. 47.
 
 CHAP. I.] 
 
 Indictment, &c. 
 
 dale, J., aud that was proved. Lord Tenterden, C J., ' On a 
 trial at the assizes the postea states the trial to have taken place 
 before both justices ; it is considered in law before both, though 
 in fact it is before one only, and I am not aware that the iiosteo. is 
 ever made up here differently when a judge of the Court sits for 
 the chief justice. I cannot stop the case upon such an objection ; 
 you may have leave to move upon this point in case it shall become 
 necessary.' (/v) 
 
 Where a trial was had in the old county court it was neces- 
 .sary to allege that the trial was had before the suitors, and to set 
 out the names of the suitors ; and therefore it was erroneous to 
 allege that the trial took place before the sheriff and suitors. {I) 
 
 The indictment alleged that an issue was tried before the sheriff 
 of the county of Durham, by virtue of a writ to him directed, and 
 that upon the trial of that issue the prisoner was duly sworn 
 before the said sheriff. By the writ of trial, return, and theTecord, 
 the issue did appear to have been tried before the slieriff of Dur- 
 liam ; but by the parol evidence it appeared that the issue was not 
 tried before the sheriff or under-sheriff, and that neither of them 
 was present, but that it was in fact tried before Mr. S., who was 
 stated to be the deputy of the high sheriff; but no appointment of 
 Mr. S. was put in, nor was his office more particularly described. 
 Wightman, J., was disposed to direct an acquittal, on the ground 
 that the variance Avas fatal ; but, upon being informed that it was 
 the invariable practice when writs of trial were directed to the 
 sheriff, to make up the record as if the trial had been before him, 
 though in fact it was before some deputy, he thought it better to 
 allow the trial to proceed, and the prisoner was convicted ; and, 
 upon a case reserved, the majority of the judges held that the 
 conviction was right, (m) 
 
 So where an indictment for perjury alleged that upon the exe- 
 cution of a writ of trial directed to the sheriffs of the city of Lon- 
 don, certain issues came on to be tried and were tried before the 
 sheriffs of London, and that the defendant came before the said 
 sheriffs, and before the said sheriffs was duly sworn, and it 
 appeared that the trial took place before the secondary and not 
 before the sheriffs, the Court of Queen's Bench held, on the 
 authority of the preceding case, {n) that the trial was properly 
 alleged to have taken place before the sheriffs, (o) 
 
 Where an indictment alleged a trial for felony to have taken 
 place at a session of oyer and terminer and gaol delivery, before 
 Lord Campbell and Mr. J. Williams, and the trial had iu fact 
 taken place before Greaves, Q.C., in the grand-jury room at Staf- 
 ford during the assizes, and his name was not mentioned in the 
 copy of the record which was j)roduced ; but the usual Avords 
 'and others their fellows, justices assigned, &c.,' were therein, and 
 it appeared that Greaves, Q.C., was a justice of the peace for 
 Staffordshire. It was objected that there was nothing to show 
 that Greaves, Q.C., had jurisdiction to try the case. Talfourd, J., 
 said that if tlic trial had taken place in this Court before a person 
 
 Trial before 
 the former 
 county courts. 
 
 Whore a trial 
 is had before a 
 deputy of a 
 slieriff, it may 
 be averred to 
 have been had 
 before the 
 sheriff. 
 
 A trial before 
 tho sheriffs o£ 
 Loudoa. 
 
 A trial for 
 felony took 
 ])lace before a 
 Q.G. in a 
 grand-jury 
 room ; the 
 copy of the 
 record stated 
 the trial bcf< w 
 two judges 
 and others, 
 their fellows, 
 &c. 
 
 {k) Hex r. Coppard, Moo. & ^\. 118. 
 3 C. & P. 59. Aciiuittal. 
 
 {I) Jones r. Jones, 5 M. & W. 523. 
 See Keg. v. Fellowes, 1 (.'. & K. 115. 
 
 (//() Keg. V. Dunn, 2 M. C. (.'. K. 207. 
 1 C. & K. 730. 
 {n) Keg. V. Dunn. 
 (0) Keg. V. Schlcsingor, 10 Q. B. 670.
 
 46 
 
 Of rcrjimj. 
 
 [book v. 
 
 IIow an nj)]!!!- 
 ciitioii til tlio 
 Queen's Kuncli 
 must lio 
 sUitcd. 
 
 Viiriancc in 
 stiitiiij,' the 
 ailjournnient 
 of a iiuartcr 
 sessions. 
 
 The inilict- 
 lucnt must 
 state tiiat tiie 
 tlcfenilaut was 
 duly sworn, 
 &c. 
 
 ill tli(! robes of a .iiul<,'e of assize, and acting as a judf^c of assize, 
 li(! woidil not rt'(|iiiru any proof of his autliority ; but Mr. Greaves 
 sat in till- gland jury room, and being a magistrate for the eounty, 
 might, it was just possible; to suppose, have acted in tliat capacity, 
 'J'hrrc! was nothing on the face of tiie documents to sliow that ho 
 had any authority ; he tlierefore thought the objection .so formidable 
 that he woidd, if ncccs.sary, reserve tlic point, (jo) 
 
 An iniUctmcnt alleged that a eau.se was depending, and that an 
 applicition was made to Lord Denman, the Lord Chief Justice of 
 Her Majesty's Court of Queen's Bench, and the otiicr judges of 
 the .said Court, and the said judges granted a rule /mi, Avhich rule, 
 or an office copy thereof, Avas set out; and Parke, B., liold that 
 the indictment was bad, as tlie application could only be made to 
 the Court, and it ought to have been so stated, and it did not appear 
 by this indictment that the application was made to a tribunal 
 having jurisdiction to grant it. (7) 
 
 If an indictment for perjury committed on a trial before the 
 sessions alleges an adjournment to have been made by certain 
 justices, and the record states it to have been made by other 
 justices, this is a variance ; but the defect may be cured by prov- 
 ing that in fact the adjournment was made by the justices named 
 in the indictment. An indictment for perjury on the trial of an 
 indictment for an assault alleged an adjournment to have been 
 made by Const, and A. B., and others their fellows, justices, &c. 
 The examined copy of the record of the conviction stated the 
 adjournment to have been made by Const, and E. F., and other-s, 
 their fellows, ju.stices, &c. It was contended that this was a 
 fatal variance ; and Abbott, C. J., held that it was ; but that the 
 defect might be cured by other evidence, as by calling some per- 
 son who could state that he was present and saw the justices 
 named in the indictment present on the day in cptestion. (/■) 
 
 It is sufficient to state in the indictment that the defendant was 
 duly sworn, (s) In a case where it was averred that he Avas sivorn 
 on the Gospels, and he appeared to have been sworn according to 
 the custom of his own country, without kissing the book, it was 
 
 ip) Eeg. V. Child, 5 Cox, C. C. 197. 
 But see Ileg. v. Dunn, supra. 
 
 {q) Ei'g. V. AVhito, 2 Cox, C. C. 232. 
 It was suggested that the rule ended as 
 nsual ' By the Court ; ' which cured the 
 defect. But Parke, B., held that that 
 was not so ; what was set out was the 
 'rule or an office copy thereof.' 
 
 (/■) Rex V. 15cllaniy, R. & IM. N. P. R. 
 171. In order to remedy the defect, a 
 witness from the office of the clerk of the 
 peace produced a minute hook, which 
 contained an entry, not drawn np in any 
 formal manner, of the names of the par- 
 ticular justices who were present at the 
 day of adjournment mentioned in the in- 
 dictment, and amongst wliom were 
 all the names mentioned in tiie indict- 
 ment : these minutes were made by a 
 clerk in the same oflice, of the name of 
 Richards, whose duty it appeared to be • 
 to attend at the quarter sessions, for the 
 purpose of making these entries at the 
 time ; but Richards was not called as a 
 
 witness, and there was no evidence to 
 show whether he was present on the par- 
 ticular day further than the entry itself. 
 In the same book, on the opposite page to 
 the entry already stated, was another, 
 drawn up bj' the witness who produced 
 the book ; and this was in the form of a 
 record, and was in fact a summary of all 
 the names of the justices attending upon 
 the quarter sessions upon each day during 
 the .sessions, but it did not distinguish who 
 was present upon any particular day ; 
 amongst these names also were the jus- 
 tices mentioned in this indictment. But 
 Abbott, C. J., held that this evidence was 
 not sufhcient to supply the defect ; the 
 minutes made by Richards were not a 
 record, or in the nature of a recoixl, and 
 the entry ou the opposite page was in- 
 sulHcient, as it did not give the names of 
 the justices who were present on the par- 
 ticular day. 
 
 (*•) Rex i'.M'Carthur, Peake"s X. P. C. 
 155. Lord Kenyon, C. J.
 
 CHAP. I.] 
 
 Indictment, &c. 
 
 47 
 
 considered as a fatal variance ; though it was holden that the 
 averment was proved by its appearing that he was prev'wuslu 
 sworn in the ordinary mode, {t) An indictment for perjury in a 
 cause tried at the assizes was holden good, although it alleged the 
 oath to have been taken before one only of the judges in the com- 
 mission, and the nisi prius record imported that the trial was 
 before the two judges of assize, (tt) 
 
 An indictment at common law, which charged that the de- 
 fendant, ' falsely, maliciously, wickedly, and corruptly swore, Sec, 
 was holden sufficiently to imply that the offence was committed 
 wilfally ; {v) but it was considered at the same time that, in an 
 indictment on the 5 Eliz. c. 9, the offence must be laid expressh'- 
 to have been wilfully committed, (w), 
 
 The indictment should aver that the defendant ' ivilfidly and 
 corruptly ' swore, and every count should expressly state that the 
 defendant was sworn, and the fact of his having been sworn 
 cannot be taken by intendment. The first count stated that the 
 defendant on the trial of an indictment against J. H., intending 
 to injure J. H., and to cause him to be wrongly convicted, ap- 
 peared as a witness and was sworn, and 'then and there falsely 
 and maliciously gave false testimony against J. H., by then and 
 there deposing and giving evidence,' &c. The fifth count, the 
 only one that differed materially from the first, alleged that by 
 means of the false testimony in the first count mentioned, J. H. 
 was found guilty ; that a rule nisi for a new trial was granted ; 
 that the defendant, intending to hinder the said rule from being 
 made absolute, came before a commissioner and was sworn, and 
 being so sworn, wickedly, wilfully, and corruptly did depose, 
 swear, and make affidavit in writing, in substance that the evi- 
 dence which he, J. S., had given on the said trial was true ; 
 whereas the evidence which the said J. S. had given on the said 
 trial was not true, but was false in the particulars in the said first 
 count of this inquisition assigned and set forth. The defendant 
 having been convicted, a rule was obtained for arresting the 
 judgment, and after argument Abbott, C. J., delivered the judg- 
 ment of the Court as follows : — ' I am of opinion that this rule must 
 be made absolute. As to the first class of counts the objection is 
 that they do not charge that the defendant swore wilfully or 
 corruptly. Every definition of perjury is swearing wilfully and 
 corruptly that which is false. Whether the word maliciou.sly 
 might supply tlio place of either wilfully or corruptly, it is not 
 
 Wilfully aud 
 corruptly. 
 
 The indict- 
 ment should 
 state that the 
 defpudant 
 swore wUfallij 
 and corruptbj, 
 and every 
 count should 
 aver that the 
 defendant was 
 
 (t) Id. ibid. 
 
 {u) Rex r. Alford, 1 Leach, 150. JMS. 
 Ijiiylcy, J. Eyre, B., doubted on the trial 
 whether one commissioner of assize alone 
 liad competent autliority to administer 
 the oath, and conceived the indictment 
 ought to have alleged the oath to have; 
 be(!n taken bcfoi'e both the judges in the 
 commission, but on a case reserved the 
 judges were unanimous that the indict- 
 ment was right. See this case, ante, p. 
 44. But as to a record in the Crown 
 Court, sec l\ex v. Lincoln, ante, p. 37. 
 In Reg. V. 13eman, 2 Ld. Raym. 1221, an 
 exception was taken to an indictment ; 
 
 that it stated the trial at which the oath 
 was taken to ha\e been before the Lord 
 Chief Baron and the associate, l)ut stated 
 the oath to have been before the Chief 
 Ikiron, without the associate ; and also, 
 that the assignment of perjury did'ered 
 from the oatli, being liefore the Chief 
 llaron and associate. But the objections 
 were overruleil ; and the Court held that 
 the associate need not be mentioned in 
 every part of the indictment where tlu! 
 Cliief Baron was mentioned. 
 
 {v) As to the oll'ence being wilful, sec 
 ante, p. 1. 
 
 {w) Cox'.s case, 1 Leach, 71.
 
 48 
 
 iJJ pL'tjinij. 
 
 [book V. 
 
 ' Felouiou.sly ' 
 swore is bad. 
 
 That the 
 IJCi-son had 
 authority to 
 administer tlic 
 oatli. 
 
 Is 'sufficient' 
 equivalent to 
 ' competent 
 autiiority \ ' 
 
 A judge of one 
 of the sm erior 
 courts at 
 
 necessary to (l(!tt'rmin(', for neither ui those words is found in tlie 
 counts ill question, and Cox'a aine, (x) which lias heen referred to, 
 proves at all events that such counts are insufficient. I tuAv 
 come to the consi(h'ratinn of the last count. It is in a furni 
 perfectly novel ; il w.is intended to allej^^e peijury in an affidavit 
 made in this court. In the ordinary course of pleading, the first 
 stop would have been to charge that there had been a trial, and 
 tliat the defendant was sworn as a witness; the second, that he 
 swore such and such things ; the thiid, that the matter was false ; 
 and so on. Here there is no distinct averment that the d«'fendant 
 was sworn as a witness, or of what he swore. But the fact of his 
 having been sworn must be taken by intendment. Were avc to 
 do that, as we arc desired to •<il-o, in support of this indictment, we 
 should furnish a precedent fdr a very loose and insufficient mode 
 of charging a very serious offence, which has always hitherto 
 been reciuired to be charged with great certainty and particularity. 
 I tliink that these novel attempts in pleading are not to be 
 encouraged, and that the judgment must be arrested.' (y) 
 
 Where an indictment for perjury alleged that the pri.soner 
 'feloniously' swore to the matter on which the perjury was 
 assigned instead of ' falsely,' it was held that the indictment was 
 bad in substance, and that the words ' corruptly, knowingly, wil- 
 fully, and maliciousl}^,' did not supply the defect : a man might 
 swear 'corruptly' under some corrupt influence, and yet swear the 
 truth ; so with respect to the word ' knowingly ; ' and he might 
 swear ' wilfully and maliciously ' to gratify some malicious feeling, 
 but yet it might not be ' falsely.' Nor did the conclusion that the 
 prisoner ' in manner and form aforesaid did commit wilful and 
 corrupt perjury ' cure the defect ; for the meaning of that was, 
 that the prisoner committed the offence in the manner stated, and, 
 that statement being defective, the indictment w^as bad. {z) 
 
 It must appear or (a) be alleged in the indictment that the 
 person b}' whom the oath Avas administered had competent power 
 to administer it. Thus upon an indictment for perjury before a 
 justice in swearing that I. S. had sworn twelve oaths, where the 
 charge as stated did not import that the oaths were sworn in the 
 county for wdiich the justice acted. Eyre, J., arrested the judgment ; 
 because as the charge did not so import, the justice had no juris- 
 diction to administer the oath in question to the defendant, (h) 
 
 Where an indictment for perjury alleged that two judges had 
 'sufficient authority' to administer the oath, it was doubted 
 whether it was sufficient, as the 23 Geo. 2, c. 11, s. 1, has only 
 ' competent authorit3\' (c) 
 
 An indictment for perjury alleged that W. U. had done business 
 as an attorney for the defendant and J. I. on the retainer of 
 
 (x) Supra, uote (ic). 
 
 (y) Rex r. Stevens, 5 B. & C. 246. 
 The 5 Eliz. c. 9, s. 6. ante, p. 24, uses 
 both the words ' wilfully and corruptly,' 
 and therefore it should seem that both 
 these words must be used in an indict- 
 ment on that statute. V. S. G. 
 
 (-) Keg. V. Oxley, 3 C. & K. 317. 
 Cresswell, J., after consulting Alderson, 
 
 290. 
 
 M.>. 
 
 B 
 
 (a) SecR. ?•. Dunning, L. E. 1 C. C. E. 
 
 (/<) Eex r. "Wood, Exeter, 1723. 
 Baylcv, J. 
 
 ((•> "Keg. r. Child, 5 Cox, C. C. 197. 
 Talfourd, J., declined to stop the case, 
 but would have reserved the ]>oiut had 
 not the prisoner been acquitted. This 
 enactment is now repealed, see anU, 
 p. 3o, and sec the present enactment li 
 & 15 Vict, c. 100, s. 20, ank, p. 35.
 
 CHAP. 
 
 !■] 
 
 Indictment, &c. 
 
 the defendant, and that afterwards, to wit, on the 7th of August, 
 1844, the said W. U. deHvered a bill of costs to the defendant and 
 J. I., and that no application was made to the court, in wliich the 
 said business was done, by the defendant or J. I. within one month 
 after the delivery of the bill, nor did the said court or any judge 
 within one month next after the delivery of the said bill refer the 
 said bill to taxation ; and that after the expiration of one month, 
 to wit, on the 2oth of April, 1845, W. U. applied to one of the 
 judges of the said court to refer the said bill to be taxed, and 
 thereupon on the said 25tli day of April the said judge issued a 
 summons, requiring the defendant and J. I. to show cause why the 
 said bill should not be referred to the master to be taxed ; and that 
 before showing cause the defendant went before a commissioner 
 and made an affidavit denying the retainer of the said W. U. It 
 was objected that ' month' in the indictment meant lunar month ; 
 and as the jurisdiction to tax the bill on the application of the 
 attorney did not arise under the 6 & 7 Vict. c. 73, ss. 37 & 48, until 
 after one calendar month after the delivery of the bill, the indict- 
 ment did not show jurisdiction to issue the summons. But the 
 Court of Exchequer Chamber held that the objection ought not 
 to prevail ; and Parke, B., in giving the judgment, said, ' Al- 
 though the word "month" would, in our opinion, if unexplained, 
 signify lunar month, enough is stated to show the judge's jurisdic- 
 tion ; for, as the dates are material, they may be taken without 
 the videlicet, and taken to be true. But I do not think the indict- 
 ment would be bad even if it contained nothing to show that a 
 calendar month had elapsed before the summons issued ; for the 
 judge had general jurisdiction, and must be taken to have had 
 jurisdiction in the particular case unless the contrary appear. I 
 think in such a case the jurisdiction would be intended : but it is 
 jiot necessary to decide the point.' ('/) The third and fourth counts 
 of the same indictment omitted to allege that no application had 
 been made to the court or a judge to tax the bill by the defendant 
 or J. I., and it was urged that these counts were bad by reason of 
 such omission, as by sec. 37 of the 6 & 7 Yict. c. 73, the jurisdic- 
 tion of the courts to refer such a bill to taxation upon the appli- 
 cation of the attorney depended on the fact that no application 
 had been made within the month by the party chargeable ; but the 
 Court of Queen's Bench held that the judge had jurisdiction, after 
 the expiration of the month which was alleged in the counts, to 
 issue a summons at the instance of the attorney, calling on the 
 party chargeable to show cause why the bill should not be taxed, 
 although it might be true that if it had appeared on showing cause 
 that a previous application within the month had been made by 
 the party chargeable, the judge might not have had jurisdiction 
 to make an order for taxation. Therefore the affidavit of the 
 defendant, made after such summons, was made in the course of a 
 judicial proceeding, (e) 
 
 Where a statute rcf[uiros an act to be done by justices of the 
 peace acting for a particular divi;-ion in petty sessions, an indict- 
 
 {(1) Eyalls r. The Queen, 11 Q. W. 178. 
 
 The Court of Queen's 15onch liad lichl 
 
 that as all the counts referred to the .\ct 
 
 of rarlianient, the word ' month ' in the 
 
 vol,, in. 
 
 indictment must be construed according 
 to the clause in the Act to mean calen- 
 dar month. 
 ((!) Ibid. 
 
 49 
 
 Westminster 
 has general 
 jurisdiction by 
 statute as to 
 the taxation of 
 costs. It is 
 not, therefore, 
 a condition 
 precedent to 
 the legality of 
 a summons 
 calling on a 
 client to show 
 cause why an 
 attorney's bill 
 should not be 
 referred to 
 taxation, that 
 the judge 
 should ascer- 
 tain whether 
 there had been 
 a previous 
 application by 
 the party 
 chargeable ; 
 that may bo 
 ascertained 
 afterwards. If 
 therefore an 
 indictment for 
 perjury, com- 
 mitted in au 
 affidavit nia'lc 
 in answer to 
 such a sum- 
 mons, merely 
 states that the 
 judge had 
 issued the 
 summons, that 
 would be 
 sufficient. 
 
 Perjury at a 
 petty sessions 
 of justices
 
 50 
 
 ftctin;; for a 
 ]iivrticiiliir 
 (livLsioii of a 
 county. 
 
 Indiitniciit 
 liulil Imd for 
 not Hluiwiii;; 
 that tlierc was 
 a cliarj,'o mado 
 before a 
 justice. 
 
 Of Perjury. 
 
 [I'.DOK V. 
 
 An iiulictincnt 
 for perjury, 
 stating that 
 the prisoner 
 came iicfore a 
 magistrate, 
 and maliciously 
 deposed, 
 fiworc, 
 
 charged, and 
 gave him to bo 
 informed that 
 C. F. E. had a 
 venereal 
 affair with a 
 donkey, shows 
 sufficiently a 
 proceeding 
 
 mont. for porjiiry comniittod before two such justices must allege 
 tli.it they were uctiii;^ for such division, but need not aver that 
 they were assembled in pt-tty sessions. (/) 
 
 VVhore an indictment for perjury stated that the prisoner, ma- 
 liciously intendinjT to subject W. Mortil)oy to the punishments of 
 felony and larceny, went before J. C. and IT. If., two justices of 
 the peace, and was sworn (J. C. and If. 11. having competent 
 power, Sec.) and deposed in substance that on Wednesday last he 
 (the prisoner) was in W. M.'s Peg Alley, and that he (the pri- 
 soner) put his hand into his watch fob, and took out a 5?. note to 
 make a bet with W. M., and put it into his breeches pocket. That 
 W. M. collared him, and knocked him down, and put his knee on 
 him, and then put his hand into his (the prisoner's) pocket, and 
 took the said 5/. note, &c. It was submitted that the indictment 
 Avas bad, as it did not show that there was any proceeding pending 
 before the magistrate, or that this was a deposition on any charge 
 of felony. Coleridge, J., ' There might be cases of an affidavit, 
 where there was no charge, and no prosecution, and, indeed, no 
 cause in hand. It might have been averred that the defendant 
 made a charge, and that in support of that charge the deposition 
 was made. If the defendant had merely come before the magis- 
 trates to sw^ear this, Avithout more, it would not be perjury. I 
 think that the indictment is not sufficient.' {cj) 
 
 The first count stated that the prisoner, meaning to subject 
 C. F. E. to the punishment provided for persons guilty of felony, 
 &c., went and was sworn before a justice of the peace for the 
 county having competent authority to administer the oath, and 
 being so sworn then upon a certain information and examination, 
 entitled ' County of Oxford to wit : the information and exami- 
 nation of R. G. taken upon oath before me, &c.,' falsely, &c., did 
 depose, &c. The whole of the information was then set out ; it 
 contained the following passage : — ' I then went and got over Mrs. 
 Calcut's wall into the close, and went and looked over the wall 
 between her close and Mr. E.'s ox-pens. I then saw the donkey 
 standing with its side towards and near to the manger of the 
 second pen, with hcv head towards Mrs. Calcut's close. Mr. 
 
 (/) Reg. r. Eawlings 8 C. & V. 439, 
 Park, J. A. J., and ratteson, J., after 
 time taken to consider the points. 
 
 (f/) Keg. V. Pearson, 8 C. & P. 119. 
 "When the objection was first made, Cole- 
 ridge, J., saiil, ' This might have been tlie 
 original information. Jlight it not be that 
 this statement to the magistrates was the 
 charge ? ' Ami it is conceived that this 
 was the correct view of the case. In cases 
 of felony and misdemeanor it is a very 
 common jiractice for the party complain- 
 ing to state the facts to the magistrate's 
 clerk, who takes them down in the shape 
 of an information ; such information is 
 then taken to the magistrate, and the 
 complainant sworn to the truth of it : in 
 .such ca.ses it is conceived the making the 
 charge before the magistrate, and the 
 making the deposition, is one and the 
 same thing ; it could not, therefore, be 
 averred ami proved that the party made 
 
 the charge, and in support of it made 
 the deposition. See Caudle v. Seymour, 1 
 Q. B. 889, where .some strong observations 
 were made against the propriety of such 
 a practice. It may, however, be ques- 
 tionable whether sucli a mode of taking 
 tlie information would afford any ground 
 of defence to the party who was sworn to 
 its truth. It may be ob.served, also, that 
 although it may admit of doubt whether 
 this deposition disclosed a felony, j-et as it 
 clearly showed an assault, the magistrate 
 Iiad jurisdiction to administer an oath. 
 In Keg. V. Bradlev, Stafford Spr. Ass. 
 1844. MSS. 0. S. G. Coleridge, J., said, 
 that in the discussion of Keg. ?•. Ganiiner, 
 infra, considerable doubts were enter- 
 tained among the judges whether Keg. r. 
 Pearson was riijhtly decided. See R. r. 
 Crawlev, 12 Cox, C. C. 162 ; K. r. Lewis, 
 12 Co.x^ C. C. 163.
 
 CHAP, l] 
 
 Indictment, &c. 
 
 51 
 
 C. E. was standing- behind her. I saw that he had the flap of his before a 
 trowsers unbuttoned and hanging down. I saw the corner of the make' the feke 
 inside of it ; he was rather on the move ; he appeared to be on swearing 
 the donkey (meaning that he appeared to the said E,. G. to be in Perjury- 
 the actual commission of that detestable crime, &c.). He remained 
 in that position about five minutes, when the donkey kicked Mr. 
 C. E.'s leg, upon which he moved aside, turning his back rather 
 more towards me than it had been, and stooped down to rub his 
 leg ; he then lifted himself up again, and turned round with his 
 face towards me. I then saw his private parts exposed : I saw 
 him tuck up his shirt and button up his trowsers : the upjDcr j^art 
 of them as well as the flap had been unbuttoned.' This count 
 contained no averment as to the materiality of any of the 
 matters deposed to. It contained several assignments of perjury. 
 Those on Avhich the prisoner was found guilty were as follows : — 
 ' Whereas in fact the said C. F. E. then and there had not the 
 flap of his trowsers unbuttoned or hanging down. And whereas 
 the said C. F. E. had not then and there, or at any other time or 
 place whilst standing behind the said donkey, or any other donkey, 
 the flap of his trowsers unbuttoned, and hanging down, nor had 
 the trowsers the said C. F. E. then wore any flap whatsoever. 
 And whereas the said C. F. E. did not appear to the said H. G. 
 to be, nor was he, then and there, or at any other time, or at any 
 other place, in the actual commission of that detestable crime, kc, 
 with the female donkey aforesaid, or with any other animal, or in 
 any other manner whatsoever. And whereas the said C. F. E. did 
 not remain in that situation for about five minutes, nor did the 
 said donkey kick the said C. F. E.'s leg, nor did, &c., &c. Hero 
 followed a number of other averments, Avhich were not proved for 
 want of two witnesses. The third count was the same as the 
 first, except that it stated the prisoner's intention to be, to subject 
 C. F. E. to the punishment inflicted on persons guilty of misde- 
 meanors, and the innuendo was, that C. F. E. was attempting to 
 commit the offence. The seventh count stated, that the prisoner, 
 intcndinsf to asfcrrieve C. F. E., 'came before Mr. Rawlinson, and 
 was sworn (he having authority), and falsely, &c., did de2")ose, 
 swear, charge, and give the said justice to be informed that the 
 said C. F. E. upon, &c., had a venereal affair with a certain 
 animal called a donkey, and feloniously and against the order of 
 nature did commit and perpetrate that detestable and abominable 
 crime, &c., with the said donke}-. And further (it being then 
 and there material to the inquiry into the said charge and infor- 
 mation to know the state of the said C. F. E.'s dress at the time 
 the alleged offence was so charged to have been committed as 
 aforesaid) that he, the said R. G., then and there saw that the said 
 C. F. E. then and there had the flap of his trowsers unbuttoned 
 and hanging down, and that he, the said R. G., then and there 
 saw the inside of the said flap ; whereas the said R. G. did not 
 then and there, or at any timo, or at any place, see the said C. F. E. 
 at any time in the act of having a venereal affiair with a donkey, 
 or with any other animal whatsoever, nor did the said C. F. E. 
 then, or at any time, or at any place, or in any manner commit, 
 nor was the said C. F. E. at any time, or at any place, or in ;iny 
 manner in the act of committinc: that dctestaljle and abominalile
 
 52 (}/' Prijiivf/. []0)K V. 
 
 crliiv. And wlicrcas the siiid R. G. did not tlion and there sec 
 the llap ol' liis, the said (J. F. Pi's, trowscrs nnljnttuned or hang- 
 in<,' (h)\vn. nor was the fla|) of the said C F. K.'s trowsers then 
 and t\\vvr nnhnttoned or liaii<ring (h)wn, nor did tlie said l\. G. 
 then .iiid there see tlic inside of the flap of the said trowsers. The 
 infoiiiialidii .sir,nied ])y th(! jirisoner was put in, and it was proved 
 fli.il he was duly sworn, .-ind that tlic cJiarge was dismissed. 'J'he 
 two witnesses, prochtced to the facts, were C. F. E., a ha.l of 
 fifteen, and his elder brother, J. H. E. They swore that they 
 ■went together to the field, J. H. E. having a gun ; that they 
 spoke of going to Chipping Norton, and that Cliarles went to sec 
 whether the donkey was able to go to Chipping Norton, and 
 parted from his brother for that purpose — that he was ab.sent 
 tlu'cc minutes — that the trowsers he had on, wliich were produced 
 in court, had no fla]). These were the only facts to wliich they 
 both spoke. C. F. K. fully negatived what the prisoner had sworn 
 to, in a manner (juite satisfactory to the jury. J. H. E. also 
 stated that he was about forty yards from the ox-pens — that he 
 had his back towards them — that if he had turned round he could 
 have seen them and the wall, and must have seen if any one was 
 looking over it, but he did not turn round. It was objected, first, 
 that the first and third counts did not distinctly show any pro- 
 ceeding pending before the magistrate ; that they ought to have 
 averred directly that a charge was pending. Ii<^!J. v. Pearson, (h) 
 But Patteson, J., thought that case distinguishable, because of 
 the words ' upon an information and examination,' &c. (i) Second, 
 that the flap of the trowsers being unbuttoned did not appear on 
 the face of the counts to be material, and there was no averment 
 of its materiality. The same objection applied to the precise time 
 of five minutes. Third, that the assignment of perjury as to the 
 main charge was too large, because it denied all animals and all 
 times and places. Fourth, as to the first count, that the language 
 used by the prisoner as there set out, did not import that a felony 
 was committed, but only an attempt. These objections were 
 urged in arrest of judgment. Fifth, as to the seventh count, the- 
 first objection to the first and third counts was urged. Sixth, to 
 the same count it was urofed that, although in that count the state 
 of C. F. E.'s dress was averred to be material, yet, that by^ such 
 averment was meant — not whether the flap of his trowsers was 
 unbuttoned — but the trowsers generally. Seventh, that the 
 seventh count alleged, that the prisoner charged the capital 
 offence, whereas, by his information, he appeared to have charged 
 only an attempt. The sixth and seventh objections were taken 
 before the verdict, and did not apply in arrest of judgment, as 
 was also the objection, whether the evidence of J. H. E. went to 
 any material fact sufficient to satisfy the rule as to two witnesses 
 in cases of perjury. On all these questions, the learned judge 
 requested the opinion of the judges, and all the judges present 
 held the conviction good on the seventh count, and most of them 
 appeared to think it good on all the others. ( /) 
 Insufficient Where an indictment stated that ' heretofore, to Avit, on. Sec, 
 
 (h) Antr, p. r>0. 2 Cliitty's Crim. Law, 443. 
 
 ()') The jiicsint inilictmeiit is in the {j) Keg. r. Gardiner, 2 M. C. C. K. 
 
 same form as the one iu 4 AVeutw. 244. 95. 8 C. & V. 737.
 
 CHAP. 1.] 
 
 Indiclment, etc. 
 
 53 
 
 at, Sec, before M. G. and T. H. H., two of the justices, &c., came 
 one J. Osborne, and then and there exhibited to and before the 
 said M. G. and T. H. H., so being such justices as aforesaid, a 
 certain information upon oath, and then and there informed the 
 said justices ' that certain quantities of stolen silk were found in 
 a certain house ; it was held, that this allegation did not suffi- 
 ciently show that the oath was taken before the said justices, as it 
 was consistent with the allegation that the oath might have been 
 taken before some other justices, (/o) 
 
 Where a count, which charged perjury in an affidavit to hold 
 to bail, made since the 1 & 2 Vict. c. 110, did not state that a 
 writ of summons had been issued when the affidavit was sworn, it 
 Avas held good ; for the affidavit may be sworn before the issuing 
 of the writ, {l) 
 
 Where an indictment for perjury committed under the Inter- 
 pleader Act set out the issues joined in the Court of Exchequer 
 between A. B. and C D., the trial at Westminster, the verdict 
 for the plaintiffs, the judgment, the writ of ^^eri /acias consequent 
 thereon to the sheriff of Somersetshire, dated the oth of June, 
 1841, the warrant, the seizure of the goods of C. D., and the 
 notice on the part of the prisoner to the sheriff not to sell the 
 goods so seized, but to deliver them up to him, the same being 
 his property ; and then charged that the prisoner came before a 
 commissioner, and produced an affidavit in writing, and swore to 
 the truth of the matter contained in it ; and the affidavit was, 
 that the prisoner having heard that C. D. had certain goods (those 
 seized under the Jleri facias of the 5th of June), bought them and 
 paid for them on the ]st of June. The sale and purchase were 
 then negatived, and this was the perjury charged. It w^as sub- 
 mitted that, as there was no allegation that any application had 
 been made under the Interpleader Act, it did not appear that the 
 affidavit was made in a judicial proceeding ; and Coleridge, J., 
 held the objection fatal ; as for anything that appeared this was a 
 voluntary oath, and not made in any judicial proceeding, (m) 
 
 Where an indictment for perjury alleged that a certain cause 
 had been depending in the King's Bench, and that such proceed- 
 ings were had, that a writ of inc^uiry was duly issued out of the 
 said court, directed to the sheriffs of London to inquire, &c., and 
 that the said sheriffs should make appear the inquisition which 
 they should take thereof before the justices of our said Lord the 
 King at Westminster, and then assigned perjury on the taking of 
 the said inquisition before the secondary ; the Court of King's 
 Bench seem to have been of opinion that the indictment was bad, 
 as it appeared that the perjury was committed coram nonjiuUce ; 
 for the writ of inquiry was issued out of the King's Bench, and 
 made returnable in the Common Pleas, and therefore the secon- 
 dary had no jurisdiction to administer the oath, {n) 
 
 allegation of 
 making an 
 informatioa 
 on oath. 
 
 Affidavit to 
 hold to bail 
 Ijefore issuing 
 the writ. 
 
 Indictment for 
 perjury in an 
 affidavit under 
 an inter- 
 pleader rule, 
 must allege 
 that there was 
 an application 
 to the court. 
 
 Writ of in- 
 quiry issued 
 out of B. E., 
 returnable in 
 C. P. 
 
 (A-) Eeg. V. Goodfellow, MSS. C. S. G. 
 and C. & M. 569. Patteson, J., and 
 Crcsswell, J. 
 
 {I) Kingv. lleg. 14 Q. B. 31. 3 Cox, 
 0. C. 561. 
 
 (m) Reg. V. Bishop, C. & M. 302. 
 
 {n) Pippet V. Hearn, 5 B. & A. 634. 
 The question arose before the Judicature 
 
 Acts in an action for a malicious pro- 
 secution for ] perjury, and tlie first count 
 set out the indictment for perjury as 
 stated in the text, and the court held 
 that the count was good, for wiicro 
 a man maliciously ]irefers an indictment 
 for a crime he is liable to an action for it, 
 although the indictment be defective.
 
 )ininis.sii)iion) 
 of biaiikruiit 
 
 54 Of Perjury. [book v. 
 
 In.lioiincnt for Au iiidictiiuiiit for jMTJuiy comiiiittcd in tlic proliiiiiiiiiry procccd- 
 luijury l.cfoio j||,rj. l„.f,,i-(. tlic coiiiiiiiss'njiici-.s of biiiikiiipl mi(l( r (Jeo. 4, c. 10, 
 to ascertain wlietlicr the l>arty .sIkmiM be adjudj^^ed bankrupt or 
 not, it .seems would be good, altlioiigli it omitted to f^tate that 
 there was a good petitioning creditor's debt, (o) 
 If an iii.liot- ]n ail indictment for pcrjury iu an affidavit it is sufhcient to 
 
 iiuMitstat- <^(^.,t^, (i,.,| (1,0 defendant was sworn before A. 13, (A. B. having 
 ha^nul'tl.S/ power to administer an oath) without stating the nature of A. B.'s 
 to administer authority. An indictment for peijury in an affidavit alleged tliat 
 the o.-iili, it is i^ii^. defenilant did take his corporal oath bef<n-e F.J. (Jhell (he the 
 nnrinin',!^''' s^id F. J. Clicll thcu aud there having sufficient and competent 
 
 011I< Slid" I Up, ^ ... 1*1 1 1 iPli 
 
 tiionatnroof power and authority to administer the said oath to the dclendant 
 tho authority, j,^ ^\yr^^ behalf) and that the defendant did before the said F. J. 
 C'hell, as such commissioner as aforesaid, depose, &c. It was con- 
 tended, in arrest of judgment, tliat tlie indictment was bad, as it 
 did not describe the official station of the person before whom the 
 defendant was sworn. It was, indeed, stated that he made affi- 
 davit of certain matters before F. J. Chell, as such commissioner 
 as aforesaid ; but he had not been before mentioned as a commi.s- 
 sioner, and therefore that averment could not cure the defect. 
 The 2o Geo. 2, c. 11, {oo) made it unnecessary to set out the com- 
 mission of the person before whom the oath was taken, but that did 
 not di.spense with the necessity of showing the nature of his office. 
 Abbott, C. J., ' Looking at the Act of Parliament, 23 Geo. 2, 
 c. 11, {oo) we find that all that is required to be set out in indict- 
 ments for perjury is the substance of the offence charged, and by 
 what court or before whom the oath was taken, averring such court 
 or person to have competent authority to administer the same, 
 without setting forth the commission or authority of the court or 
 person before whom the perjury was committed. It is, therefore, 
 to be considered whether the present indictment has set forth all 
 that is required by the statute. It sets forth the substance of the 
 matter sworn, the person before whom the oath was taken, and 
 avers that he had authority to administer it. The indictment does, 
 therefore, contain all that is required by the words of the statute ; 
 and taking into consideration the object of the Act, which was 
 framed to remove the difficulties before felt by reason of the aver- 
 ments and matters which were usually set out in indictments for 
 perjury, we ought not to require more than the words of the legis- 
 lature have made necessary. When a case of this sort comes 
 on for trial, the prosecutor must prove the situation of the person 
 before whom the oath was taken, and the nature of his authority. 
 I am, therefore, of opinion, that the indictment is sufficient if it 
 contains the name of the person, if the defendant was sworn be- 
 fore a person, or of the court, if he was sworn before a court. 
 There is not, then, any reason for granting this application.' (/>) 
 
 (o) Ecg. V. Evrington, C. & M. 319. and the record examinod, I have thought 
 
 See Ilex r. Jones, 4 B. & Ad. 345, ante, it right to insert the following statement 
 
 vol. 2, p. 452. of the first count, which I took from tho 
 
 (po) This Act is now repealed, see record. The indictment stated that C. C, 
 
 ante, p. 35. See the present enactment, contriving and intending to injure one 
 
 14 & 15 Vict. c. 100, s. 20, ante, p. 35. T. Stevens, and in order to obtain a rule 
 
 (;)) Rex r. Callanan, 6 B. & C. 102, of the court of B. K., wherehy it might 
 
 9 D. & K. 97. This case ha^-ing been be ordered by the said court that the s.aid 
 
 much relied upon iu the following case, T. S. should show cause why a certain
 
 CHAP. I.] 
 
 Indictment, &c. 
 
 This case was reconsidered in the following case : — The indict- 
 ment stated that at the time of the taking of the false oath by 
 J. O. hereinafter mentioned, R. L., F. D. P., and H. S. G., were 
 commissioners acting in the execution of certain Acts of Parlia- 
 ment relating to the duties of assessed taxes in and for the district 
 of the hundred of Knighton, in the county of W., and thereupon 
 heretofore, to wit, on, &c., at, &c., in the district and county afore- 
 said (at a meeting then and there held by the commissioners 
 aforesaid for the purpose of hearing and determining appeals 
 against the certificate or supplementar}' charges made by one J. L., 
 crown surveyor in pursuance of the said Acts), a certain appeal of 
 one W. H. of C, in the district and county aforesaid, in due form 
 of law came on to be heard. The indictment then averred that 
 the defendant on, &c., at, &c., appeared before the said commis- 
 sioners as a witness for and on the behalf of the said W. H., on the 
 hearing of the said appeal, and was then and there sworn, &c., 
 before the said R. L., F. D. P., and H. S. G., so being such com- 
 missioners as aforesaid, thnt the evidence which he the defendant 
 should give upon the hearing of the said appeal should be the 
 truth and nothing but the truth (they the said commissioners then 
 and there having authority to administer the said oath, &c.). The 
 indictment then proceeded to aver the materiality, the giving the 
 evidence, &c. The defendant having been convicted, a writ of error 
 was brought, and one of the errors assigned was, that it did not 
 appear that the said appeal was an appeal against such a certificate 
 as in the said indictment mentioned, or that the same appeal was 
 such an appeal as the said commissioners or any of them had 
 power, authority, or jurisdiction to determine, and if they had no 
 such power, &c., they had no jurisdiction to administer the said 
 oath ; and the Court of Queen's Bench held that the indictment 
 was bad upon this ground, and the judgment was reversed. (9) 
 
 Where an indictment alleged that ' a certain action of contract,' 
 was pending in a county court, and then alleged that the defend- 
 ant was duly sworn l)efore the judge of the said court, ' then and 
 tliere having sufficient aiid comj)etent authority to administer the 
 
 judgment signed on a warrant of attorney 
 in a cause in the said court of Stevens 
 against Callanan, and the execution issued 
 thereon, should not be set aside, and the 
 said warrant of attorney be delivered up 
 to be cancelled, and why the jirocceds of 
 the said execution should not be restored 
 to the said C. C, and why the said T. S. 
 should not pay the costs of that appli- 
 cation, and that in the meantime the said 
 proceeds should remain in the hands of the 
 shcriif of the county of Middlesex, came 
 in his proper person, &r., on, &c., at, &c., 
 before V. J. Chell, gcntlcniau, and the 
 said defendant then and there, to wit, on 
 &c., at, &c., was duly sworn, and did 
 take his corporal oath npon the Holy 
 Gospel of God before the said F. J. Chell 
 (he the said V. J. ChtU then and there 
 having suHlcient and coniiictent power 
 and authority to administer (he said oath 
 to the said C. C. in that behalf), and the 
 said G. C. being so sworn as aforesaid, 
 falsely, &c., did then and there before 
 
 55 
 
 Indictment for 
 perjury on an 
 appeal before 
 commissioners 
 of the assessed 
 taxes must 
 show that the 
 appeal was 
 one they had 
 jurisdiction to 
 try, in order 
 to show they 
 had authority 
 to administer 
 the oath. 
 
 It is sufficient 
 to allege that 
 a county court 
 judge had 
 competent 
 authority to 
 
 the said F. J. Chell, as such commissioner 
 as aforesaid, depose, swear, and make 
 affidavit in writing, amongst other things, 
 in substance, &c. The indictment then 
 set ont the affidavit, which stated, 
 amongst other things, that C. C. had 
 a]iplied to the said T. S. for a loan of 
 1.00/., which T. S. had agreed to let C. C. 
 have upon having a moiigage iipon his, 
 C. C.'s, house, and as a collateral security 
 a warrant of attorney to accompany tlie 
 said mortgage, that the mortgage and 
 warrant of attorney were pre]iarcd for 
 2oOi'., although no more than 150/. was 
 advanced, &c. : 'all which said several 
 matters and things so deposed and sworn 
 b)' the said C. C. as aforesaid were, and 
 each of them was material for the ob- 
 taining and sujjportiug the said rule.' 
 G. S. G. 
 
 iq) Reg. V. Overton, 4 Q. B. 83. Jlany 
 other errors were assigned, but not deter- 
 mined by the court.
 
 56 
 
 admini.Mior tlio 
 (>;illi williout 
 III logins; tli;it 
 
 tlu! f.'lUHO WMS 
 
 williiii till) 
 juri.siliition of 
 tlio juUfc'o. 
 
 An indictment 
 for perjury 
 against an 
 insolvent was 
 sufficient, 
 though it did 
 not allege that 
 he had resided 
 for six months 
 before the 
 filing of liis 
 petition within 
 the jurisdic- 
 tion of the 
 court. 
 
 ^If J*< ijiirij. [llOOK V. 
 
 s;ii(l o.'iili lo her in (Imt Ijcliiilf/ it was objoctcil that tlicre was no 
 aviTtuciil, that the; said action of contract was one over whicli the 
 comity cuurt had jurisdiction, and that no intendment could be 
 made in favoiu- of an inferior court that the action j)cnding in it 
 w\'is one over whicli the court had jurisdiction ; l)Ut the Court of 
 K.\cli('(|uer Chaniher hold tliat it did appear by necessary implica- 
 tion that tlie artion was one over which the judge of the county 
 court had jurisdiction; for unless he had, he" could not have had 
 power to a(hiiinister the oath, so as to be valid and binding, which 
 is the true meaning of the phrase. The alleged defect, therefore, 
 in the averment of the substance of the charge was supplied by 
 nece.ssary implicntion by the averment of the competency of autho- 
 rity in the judge to admini.ster the oath, (r) 
 
 So where an indictment fur perjury at a quarter sessions in Ire- 
 land alleged that a certain civil bill came on to be tried in due 
 form of law before an assistant barrister, and alleged the oath to 
 have been taken before the said assistant barrister, he having suffi- 
 cient and competent authority to administer the said oath ; it was 
 objected that the indictment ought to have stated that the civil 
 bill Avas for a cause of action within the jurisdiction of the court. 
 But, on a case reserved, it was held, on the authority of the pre- 
 ceding case, that the indictment w^as good, (.s) 
 
 An indictment for perjury alleged that a petition for protection 
 from process was, under and in pursuance of the 5 & 6 Vict. e. 116, 
 7 & 8 Vict. c. 96, and 10 & 11 Vict. c. 102, filed and presented in 
 the county court of Staffordshire at W. by the prisoner ; and that 
 the prisoner afterwards duly received an order for protection from 
 proce.ss, and that afterwards, whilst the proceedings upon and in 
 respect of the said insolvency were pending in the said county 
 court, to wit, at the time of filing the said petition and schedule, 
 the prisoner came before H. K, at the court at W., and within the 
 jurisdiction aforesaid, for the purpose of making an affidavit and 
 verifying on oath his said petition and schedule (H. K. being a 
 commissioner to administer oaths in chancery, and duly empowered 
 to act in the matter of the said insolvency, and to take the oath of 
 the prisoner), and was duly sworn and took his oath that the affi- 
 davit he then made Avas true (H. K. having competent authority 
 to administer the said oath). The indictment then alleged the 
 materiality of certain matter, and that the prisoner falsely swore 
 in the usual way. It Avas objected on error that the indictment 
 did not shoAV that there Avas jurisdiction to administer the oath, as 
 it did not allege that the prisoner had resided Avithin the jurisdic- 
 tion of the court for six calendar months next preceding the filing 
 of his petition, according to the 10 & 11 Vict. c. 102, s. 6. But it 
 Avas held that the indictment Avas good. (/) 
 
 (r) Keg. V. Lavey, 2 Den. C. C. 504. 
 17 Q. B. 496. See the indictment, 3 C. & 
 K. 26. Keg. V. Overton, supra, was 
 mainly relied on, in support of the objec- 
 tion, and the court observed, ' If it were 
 necessary for us to say how we should 
 decide the present case if it were not dis- 
 tinguishable from that, we should nHpiire 
 further time for consideration,' and that 
 'in that case the court considered tint 
 there was no vcrmeut that th.e cath was 
 
 administered in the course of any judicial 
 proceeding. ' 
 
 {s) Keg. V. Lawlor, 6 Cox, C, C. 1S7. 
 See K. V. Dunning, ante, p. 4S. 
 
 {t) Walker v. Keg. 8 E. & B. 439. 
 "Wightman, J., said, 'Suppose the pe- 
 titioner, not so residing, had sworn in his 
 petition that he did ; would that be per- 
 jury ? ' It was admitted that it would, 
 l.ord Campbell, C. J., 'Then such a 
 petition would give the court jurisdiction
 
 CHAP. I.] 
 
 Indictnient, etc. 
 
 An indictment for perjury alleged to have been committed on 
 the hearing of an appeal against a surcharge under the Game Acts 
 before commissioners of assessed taxes, stated that a notice of 
 appeal had been given to the assessors, and averred that the com- 
 missioners were ' duly authorized and empowered to hear and 
 determine ' the appeal. It was objected that the commissioners 
 had no jurisdiction unless a notice of appeal had been given to the 
 surveyor or commissioners ; it was answered that the indictment 
 alleged that the commissioners had authority, and that the want 
 of notice might have been waived ; but Patteson, J., held that the 
 want of notice could not be waived ; for tlie 43 Geo. 3, c. 29, 
 enabled the commissioners to hear the ajDpeal, ' unless such notice 
 shall not have been given,' &c,, ' when they shall dismiss the 
 appeal.' Without such notice, therefoi'e, the commissioners had no 
 authority to hear the appeal, and it could not make the indictment 
 good to show by evidence that the proper notice was given, when 
 the indictment itself showed the notice to have been an improper 
 one. {u) 
 
 It is necessary that it should appear on the face of the indict- 
 ment that the oath taken was material to the question depend- 
 ing, {v) But it is not necessary to set forth in the indictment so 
 much of the proceedings of the former trial as will show the mate- 
 riality of the question on which the perjury is assigned, and it will 
 be sufficient to allege generally that the particular question became 
 a material question, (iv) Thus statements, that, at a court of admi- 
 ralty sessions, J. K. was ' in due form of law tried upon a certain 
 indictment then and there depending against him' for murder, and 
 that ' at and upon the said trial it then and there became and was 
 made a material question,' whether, &c., were holden to be sufficient 
 averments that the perjury was committed upon the trial of J. K. 
 for the murder, and that the question on which the perjury?- was 
 assigned was material on that trial, (x) If the materiality of the 
 question evidently appears upon the record, as where the falsehood 
 affects the very circumstance of innocence or guilt, or where the 
 perjury is assigned on documents from the recital of which it is 
 evident that the perjury was important, the express allegation 
 may, it seems, be oautted. (?/) And where, upon an indictment 
 for perjury on a trial for felony, it did not appear that the matter 
 sworn was material, nor was it alleged that it was so, the judges 
 held, upon a case reserved, that if the original indictment had been 
 set oat, and it could plainly have been collected that the matter 
 was material, it would have been sufficient without an averment of 
 materiality, but that as this was not the case, the indictment was 
 bad. {z) So where upon an indictment for perjury committed in 
 an answer in chancery, the perjury was assigned in defendant's 
 denial in the answer of his having agreed, uj)on forming an insur- 
 ance company of which he was director, &c., to advance 10,000Z. 
 
 Indictmeit 
 Lad for not 
 showing that 
 a valid notice 
 of appeal had 
 been given 
 under the 
 Tax Acts, 
 
 It must appear 
 on the face of 
 the indict- 
 ment that the 
 oatli was 
 material, or it 
 must be 
 alleged tliat 
 it wa.s. 
 
 to incjuirc into the truth of the potitiou 
 ill that respect. ' 
 
 {u) Anonymous, 1 Cox, C. C. 50. 
 
 {v) Kcx V. Aylett, 1 'J\ K. 09. 
 
 {w) Rex V. Dowliii, 5 T. K. 311 ; Lavey 
 r. Reg. 2 Den. C. C. K. 504 ; 3 C. & K. 
 26, 
 
 (.>;) Id. ilud. 
 
 {y) 2 Chit. Crim. L. 307 a, citiiit,' 
 Troin. I'. V. 13!>, &c., and ]{ex v. Cross- 
 ley, 7 T. R. 315. Kyalls v. Rej?. n Q. H. 
 781. Reg. r. Cutis, 4 Cox, (_'. C. 435. 
 
 (::) Rex V. M'Keron, Kast. T. IT'Ji, 
 MS. liayley, J. 5 T. R. 31G. S. C.
 
 58 
 
 Of Prrjtmj. 
 
 [book v. 
 
 Tlic inilict- 
 uicnt iiiuHt 
 bIiow either l>y 
 a KUitfinent of 
 the proceed- 
 ings, or l)y 
 express avcr- 
 iiioiit, thiit tlio 
 matter sworn 
 was material. 
 
 fur three years to answer any initnediate calls, and there was no 
 averment tliat this was material, nor did it appear for what 
 purpose the l)ill was filed, or what was the prayt-r, the judgment 
 was arrested, {(i) 
 
 It seems to be fully settled that (iither it must apj)ear upon the 
 indictment that the matter in respect of which the perjury is 
 a.ssigncd was material, or it must be expressly alleged to have been 
 so. An indictment for perjury alleged that on the trial of a certain 
 issue the defendant was sworn as a witness, and that on sucli trial 
 certain questions became material, that is to say, 'whether one J. 
 Ken worthy had been arrested by one J. Lister; whether the said 
 J. L. had on the occasion of the said alleged aiTcst touched the 
 l^ersou of the said J. K. ; and whether the said J. L. had on the 
 occasion of the said alleged arrest put his arms round the said J. K. 
 and embraced him.' The indictment then charged that the de- 
 fendant swore falsely to the following effect. ' Lister (meaning 
 the said J. L.) put his aims round him (meaning the said J. K.) 
 and embraced him (meaning the said J. K., and meaning thereby 
 that the said J. L. had on the occasion to which the said evidence 
 apjilicd, touched the person of the said J. K.).' It was further 
 alleged that in answer to a question put to the defendant, ' whether 
 the said J. L. did not put his arms round him (meaning the said 
 J. K.) and embrace liim,' the defendant falsely swore as follows : 
 'he (meaning the said J. L.) did ' (meaning that the said J. L. did 
 on the occasion to ivhich the said, evidence wpplied, put his arms 
 round and embrace the said J. K. and did tovich the person of the 
 said J. K.). The defendant having been convicted, a writ of error 
 was brought, and the error specially assigned was that the materi- 
 ality of the evidence alleged to have been false \vas not sufficiently 
 averred in the indictment ; and it was contended that in the evi- 
 dence, on which the perjury was assigned, there appeared neither 
 time, place, nor circumstance to connect the statement with the 
 alleged arrest. The whole might have turned upon some former 
 and entirely different transaction. And the innuendoes did not 
 remove the difficulty : for there was no averment in them that it 
 was on the occasion of the alleged arrest ; it merely imported that 
 the evidence was given concerning an occasion, which was not 
 identified with that in question. Bayley, J., ' An indictment must 
 be good without the help of argument or inference. In the case 
 of perjury the indictment must show, either by a statement of the 
 proceedings or by other averments, that the question to which the 
 offence related was material. That is not shown here in either 
 way. The words on which perjury is assigned, if taken without 
 the innuendoes, have no necessary reference to the occasion of an 
 alleged arrest ; nor is there anything in the indictment to connect 
 them with it. It is contended that the inquiry, to which part of 
 the evidence was an answer, would not have been relevant if appli- 
 cable to any other matter and occasion than those now in ques- 
 tion ; but we know nothing of the merits of the case except 
 
 (a) Kex r. Bignold, Trin. T. 1824. 
 JIS. Bayley, J. The indictment vras 
 shown to Lord Gifford, !M. K., and Mr. 
 Bell, K. C, who both thought that ujiou 
 the face of the indictment it could not be 
 said whether the question was material or 
 
 not ; and the materiality of all questions 
 in a chancery suit depending upon the 
 purjioso for which the suit is instituted, 
 the court held that the indictment could 
 not be supported. MS. Bayley, J.
 
 CHAP. I.] 
 
 Indictment, &c. 
 
 50 
 
 from the indictment. The innuendoes rather introduce greater 
 doubt than greater certainty, and lessen the force of the argument 
 that only one occasion could have been contemplated. I am, 
 therefore, of opinion that the indictment is defective, and the 
 judgment ought to be reversed.' (6) 
 
 Where an indictment stated that a suit was pending in the 
 Court of Chancery, and that a commission was issued to certain 
 commissioners to examine witnesses upon interrogatories, and then 
 set out the ninth interrogatory, and averred that, ' upon the exa- 
 mination of the defendant upon the said interrogatories, it became, 
 and was, material to ascertain the truth of the matters hereinafter 
 alleged to have been sworn to and deposed by the defendant, upon 
 his oath, in answer to the said ninth interrogatory;' it was objected 
 that the averment of materiality was insufficient, there being no 
 statement of the alleged perjury being material to the chancery 
 suit, or to any question in that suit ; and Coleridge, J., expressed 
 some doubt whether the averment of materiality was sufficient, 
 and would have reserved the point if it had become necessary, (c) 
 And where an indictment for perjury, after alleging that an infor- 
 mation was exhibited before two magistrates, and that the same 
 information came on to be lieaixl before M. G. and J. S., two jus- 
 tices, and that ' upon the hearing of the said information before the 
 said M. G. and J. S., so being such justices as aforesaid, it became 
 and was material to ascertain the truth of the matter hereinafter 
 alleged to have been sworn to and stated by the said J. S. upon 
 his oath ; ' it was held that this averment of materiality was in- 
 sufficient, {d) 
 
 An indictment stated that, on the trial of an action of lileeh v. 
 Kni(jht, 'it became and was a material question, whether a certain 
 bill of exchange, bearing date,' &c. (here the bill was described) 
 ' was accepted by the said J. Meek, for the accommodation of the 
 said W. Knight, and without valuable consideration to the said 
 J. Meek from the said W. Knight ; and whetlier a certain paper 
 "wi'iting or memorandum, then and there produced, by and in the 
 handwriting of the defendant, J. Burraston, was really and truly 
 executed by the said W. Knight, by affixing his mark thereto, at 
 the time of the making of the said hill of exchange. (The in- 
 dictment then set out the memorandum.) And whether the said 
 memorandum was read over by the said J. Burraston to the said 
 W. Knight, at the time of making the said bill of exchange as 
 aforesaid.' The indictment then alleged that the defendant swore 
 that the said paper writing or memorandum was duly executed 
 by tlic said W. Knight, by affixing his mark to the same, in the 
 presence of the said J. Burraston, on the day on which the same 
 bears date and at the time of the making of the said hill of 
 
 Hewins's case. 
 Imperfect 
 allegation of 
 materiality. 
 
 Gooilfellow's 
 case. 
 
 Burraston 's 
 case. 
 
 Insufficient 
 av'erments of 
 materiality 
 and of the 
 falsity of the 
 matter sworu. 
 
 {!>) Rex V. Nicholl, 1 B. & Ad. 21. 
 Littledale, J., and Parke, J., concurred, 
 and Parke, J., added, ' It is part of the 
 donnilioii of perjury liiat the false swear- 
 ing is on some point material to the ques- 
 tion in issue. In an indictment this may 
 appear either from the matter of the suit, 
 as shown on tlie reccnnl, or by direct 
 averment.' 
 
 (c) Keg. V. Ilewiiis, 9 C. & P. 786. 
 
 TIic defendant was ac(iuitted. The form 
 of the averment in this and the following 
 case was taken from '2 Ciiitty'a Cv. L. p. 
 307 « ; when; it is saitl that this ' concise 
 statement would, it should seeui, in all 
 cases sniliee.' 
 
 ('/) Keg. V. Goodfellow, Pattcson, J., 
 after consulting Cre.sswell, J., C. & M. 
 5(59. See tiie averment of materiality in 
 lle.x I'. Callauan, anlc, p. 54, uote {p}.
 
 60 
 
 Of Perjury. 
 
 BOOK V. 
 
 An averment 
 that ' it then 
 and tliere he- 
 came matciial ' 
 is insullicient. 
 
 An averment 
 that a question 
 •was material 
 
 cxchaiifjc, and (li.-it tlio said iiienioraiidum was tlit.'n and there read 
 over 1)V the siiid J. Jjun-aslon to the said W. Knight. 'Whereas, 
 in tiiilh .ind in fact, the said W. Knight did not execute the said 
 paj)(.r writing or nietnoranduni hy affixing his mark thereto, in the 
 presence of the said J. Burraston, on the day on vjhich the same 
 hcar.s dale, nor was the said menioraiKhini read over by the said J. 
 Burraston to the said W. Knight at the time of tlic making of 
 tlie said bill of exchange, nor was the said memorandum produced 
 or shown to the said W. Knight by the said J. Burraston, at the 
 time of making the said bill of exchange.' Upon a writ of error, 
 brought after a general verdict of guilty, the cn-ors a.ssigned were, 
 that no perjury was assigned upon the question alleged to have 
 been a material cpiestion upon the trial, and that no perjury was 
 assigned upon any question alleged to have been a material ques- 
 tion upon the trial ; and the Com t of Queen's Bench held that the 
 indictment was bad. The assignment of jierjury, that the bill was 
 not executed on the day on which the same bears date, departed 
 from the statement of the evidence, and the allegation of the mate- 
 riality. And the assignment of perjury, that the paper was not 
 executed at the time of the making of the bill, bore no relation to 
 the allegations of the evidence of the defendant. The statement 
 of the evidence of the defendant, as well as the allegation of the 
 falsehood, were uncertain. The words 'then and there' might refer 
 to the two dates, the date of the memorandum and the day of the 
 making of the bill, and it might consist with the fact that it never 
 was read over on both days, or the defendant might never have 
 intended to say tliat it was. (c) 
 
 An indictment alleged that E. S. filed his bill in cliancery 
 against the prisoner, J. S. S., and J. S., whereby he prayed that a 
 purchase by the prisoner might be declared fraudulent and void, 
 and that he might be decreed to deliver up the contract to be 
 cancelled, and then averred that it tJien and there became a 
 material question whether the prisoner did advise the said J. S., 
 E. S., and J. S. S., that certain real estate, including the premises 
 described in the said bill, should be sold. It was held that the 
 averment of materiality was insufficient. There might be very 
 good reasons for setting aside the sale as fraudulent, quite inde- 
 pendently of any advice given by the prisoner ; and that being 
 so, the question was whether there was a sufficient averment of 
 materiality, and the words ' then and there ' were not sufficient to 
 supply the omission of the words ' in the said suit,' or words to 
 the same effect. (/) 
 
 x\.n indictment for perjury alleged that H. L. stood charged be- 
 fore T. Scott, a justice of the j)eace, with having on the 12th of 
 
 (c) Ecg. V. Burraston, 4 Jurist, 697. 
 The court expressed strong doubts 
 •whether it was possible to separate the 
 three iivoi)Ositions, which were said to 
 have formed one qnostion ; and Little- 
 dale, J., said that if it was one assign- 
 ment of perjury, and part was bad, the 
 whole was vitiated. It was also doubted 
 whether where a matter was stated to be 
 a material ipicstion the prosecutor could 
 abstain from stating any swearing as to 
 such maUor, or assigning any perjury 
 
 upon it. But it became unnecessarj' for 
 the court to decide either of these points, 
 as the indictment was held bad on the 
 grounds stated in the text. 
 
 ( /") Keg. V. Cutts, 4 Cox, C. C. 435. 
 Q. B. Lord Campbell, C. J., said, 'An 
 indictment for perjury must either show 
 that the evidem e alleged to be false was 
 necessarily material to the issue, or there 
 must be a positive avermeut that it was 
 material.'
 
 CHAP, 
 
 I-] 
 
 Indictment, &c. 
 
 61 
 
 August committed a trespass by entering in tlie Jaytime on cer- 
 tain land in pursuit of game, and that upon the hearing of the 
 said charge, the prisoner appeai-ed as a witness for the said H. L., 
 and was duly sworn to speak the truth touching the said charge ; 
 and that the prisoner upon the hearing of the said charge, falsely 
 swore that he did not see the said H. L. during the whole day of 
 the 12th of August, and that 'at the time he the said "prisoner 
 sivore as aforesaid it was material and necessary for the said 
 T. Scott, so being such justice as aforesaid, to inquire of and be 
 informed by the said prisoner whether he did see the said H. L. 
 at all during the said 12th day of August,' and it was held that 
 the indictment was bad ; for 'it is not stated that it was a material 
 and necessary question in the inquiry before the said T. Scott, to 
 Avhich the false and corrupt answer was given. It may have been, 
 therefore, consistently with the averments in the indictment, 
 material and important for T. Scott in some other matter, and not 
 in the matter stated to be in issue before him, to have put this 
 question and received this answer. Now as the offence of perjury 
 consists in taking a false oath in a matter stated to be in judg- 
 ment before a court or person having competent authority to de- 
 cide it, and as this indictment does not clearly and distinctly charge 
 that, it does not charge tlie offence of perjury.' (g) 
 
 An indictment for perjury committed on a trial for rape alleged 
 that it was a material question whether the prisoner ever got one 
 M. Williams to write a letter for her, and whether or not she saw 
 the said M. Williams at the house of S. Lewis's father when the 
 said letter was written ; and that the prisoner falsely swore that 
 she never got a Mr. M. Williams (he being then present in court 
 during the said trial) to write a letter for her, and that she did 
 not see the said Mr. M. Williams at the said house of the said 
 father of the said S. Lewis. Whereas the prisoner did get the 
 said M. Williams to write a letter for her, &c. At the trial for 
 rape, the prisoner was asked whether she ever 'got Mr. M. Wil- 
 liams (who was pointed out to her in court) to write a letter for 
 her. She replied, ' No, I did not.' The letter was shown to her 
 and the question repeated, and she repeated her denial, and she 
 also denied having ever seen M. Williams at S. Lewis's Cither's 
 house. The falsity of what she so swore was clearly proved and 
 the letter produced. It was objected, 1st, that the materiality of 
 the matters assigned as perjury was not sufficiently alleged ; 2nd, 
 that the reference to the letter was too vague and general, and 
 not properly pointed to the particular letter ; 3rd, that the refer- 
 ences to M. Williams and Lewis's father's house were not properly 
 introduced by an averment ; 4th, that the letter produced was not 
 sufficiently identified with the statements on the record to sup- 
 port them. The objections were overruled, and, on a case 
 reserved, it was urged that all the assignments of perjury Averc 
 defective in not identifying the M. Williams spoken of in them 
 with the M. Williams spoken of in the allegation of materiality; 
 but it was held that the indictment was sufficient : it averred that 
 it was a material question whether the prisoner got any M. Williams 
 to write a letter. That averment comprehended every person 
 
 at the time 
 the prisoner 
 swore is 
 insufficient. 
 
 Averments as 
 to the mate- 
 riality of a 
 letter, and 
 identification 
 of a person 
 named in the 
 averments 
 with one 
 named in the 
 assignments of 
 perjury 
 
 (g) Reg. r. Bartholomew, 1 C. & K. 3G(). All the .indges.
 
 62 
 
 Of Perjury. 
 
 [book v. 
 
 Averment of 
 iniitciiality as 
 to a j)ei"si>ii 
 iiisudiciL'iitly 
 conncctcil 
 with a peixon 
 uatncd in the 
 matter sworu. 
 
 An account 
 lickl sufficient- 
 ly referred to, 
 though there 
 had been 
 several similar 
 accounts. 
 
 An averment 
 that it was ma- 
 terial whether 
 the prisoner 
 had written 
 some words in 
 the presence of 
 D. 
 
 of tlio namo of M. Williams. Tlio description therefore in tliis 
 averment was lar^^er than tlio dest-ription in tlio assi<(nments of 
 ])erjury, and conii)rehcnded the M. Wilhams there spoken of. As 
 to the ohjection rehitiiif,' to the letter, it was contended that it 
 conhl not ])()ssihly be material that the prisoner got Williams to 
 write (I letter. J3nt it was held that, as there was an e.xpre.ss 
 averment that it was material, that let iti evidence to prove that it 
 was so, and when the evidence was looked at it was clear that the 
 letter was material. (//) 
 
 An indictment for giving false evidence before a commissioner 
 of bankruptcy alleged that upon the examination of the prisoner 
 it was material to inquire what Avas the extent of the dealings of 
 the ])risoner w'ith ' one Mr. Marshall, and how long he had known 
 the said Mr. ]\larshall,' \c., and then alleged that the prisoner 
 solemnly declared that ' Mr. IVIarshall is the landlord of No. 4, 
 York-terrace,' &c. ' I have known Mr. Marshall two or three 
 years,' &c. Whereas the said person so described was the same 
 person as one S. Marshall Legge, and was the father of the 
 prisoner, «&c. It was objected, in arrest of judgment, that there 
 was nothing to connect the allegation of materiality with the 
 assignment of perjury, as there Avas no innuendo that Mr. Mar- 
 shall meant S. Marshall Legge ; and the judgment was arrested 
 as the averment of materiality was insufficient to connect it with 
 the other parts of the indictment. {%) 
 
 An indictment for perjury alleged that a cause came on to be 
 tried before a county court judge, and that it became a material 
 question on the trial whether J. H. Bridges had, in the presence 
 of the prisoner, signed at the foot of a certain bill of account, 
 purporting to be a bill of account betAveen a certain firm called 
 ' Bridges and Co.' and J. Webster, a receipt for the payment of 
 the said bill, and that the prisoner falsely swore that J. H, 
 Bridges did in her presence sign the said receipt ; and it was 
 proved that on the trial the prisoner produced an invoice of goods, 
 at the foot of which Avas a receipt, which purj^orted to bear the 
 signature of Bridges, and the prisoner swore that he in her pre- 
 sence Avrote and signed that receipt. Bridges had on other occa- 
 sions signed receipts in the presence of the prisoner at the foot of 
 invoices. It was objected that the indictment did not sufficiently 
 specif}^ the account and receipt to which the evidence on Avhich 
 the perjur}' was assigned related ; but, on a case reserved, it was 
 held that the indictment Avas sufficient, as it Avas only necessary to 
 refer to the receipt as introductory to making out the materiality 
 of the perjury, (j) 
 
 Where an indictment for perjury alleged that the defendant 
 swore that he had not Avritten certain Avords in the presence of 
 one Dipple, and alleged that it Avas a material question Avhether 
 the defendant had so Avritten such Avords in the presence of 
 Dipple ; the Court of Queen's Bench held that the indictment 
 Avas sufficient ; for the question Avhether the words were Avritten 
 
 {Ix) Peg. r. Bennett, 2 Den. C. C. 240 ; 
 3 C. & K. 124 ; 5 Cox, C. C. 207. It is 
 trusted that the text represents substan- 
 tially the grounds of the decision on the 
 two points ; but all three reports are very 
 
 unsatisfactory. No express notice was 
 taken of the other points. 
 
 (0 Keg. r. Legge, 6 Cox, C. C. 220. 
 The Recorder, after consulting Parke, B. 
 
 (;■) Keg. V. Webster, Bell, C. C. 154.
 
 CHAP. I.] Indictment, do. C3 
 
 iu the presence of Dipple might have been material ; and it was 
 impossible to assume the contrary against the record, {k) 
 
 An indictment for perjury on the taking of an inquisition be- An averment 
 fore a coroner alleged that it ' was, upon the taking of the said *|JJ-J„°^f*^^ 
 inquisition, a material question whether,' &c., and it was urged inquisition,' it 
 that this statement did not sufficiently show that the question was was material, 
 material to the inquiry ; but Parke, B., held that the statement *^c. 
 sufficiently imported that the question was material to the subject- 
 matter of the inquisition. (I) 
 
 An indictment for perjury alleged that it was a material ques- Question as to 
 tion whether, before the execution of a bond, it was agreed between the materiality 
 certain persons that the prisoner should lend W. Winder 1500?. "^^^'eem'Snt'!^ 
 before the title to certain premises was investigated by the pri- 
 soner, and before any mortgage thereof was executed to secure 
 repayment thereof, and that they should execute the bond to 
 secure the prisoner the repayment of the said sum and interest in 
 case the title should turn out to be defective, or the mortgage 
 should not be duly executed ; but if the title turned out to be good, 
 and the mortgage was executed, they were not to be liable on the 
 bond ; and then alleged that the prisoner falsely swore that 
 nothing was said by him or in his hearing about the bond being a 
 temporary security, or a security until the mortgage was pre- 
 pared, ' or anything of the kind.' It was objected that, according 
 to the agreement as stated, the bond would be binding until the 
 title turned out to be good, which would not necessarily be when 
 the mortgage was executed, so that the bond would not necessarily 
 bo a temporary security. But Erie, J., held that the exact terms 
 of the alleged agreement were not material ; for the prisoner swore 
 that there was no agreement ' of the kind.' (ni) 
 
 The indictment must show on the face of it that the matter ^vas Ann Bii-d's 
 material ; it is not sufficient if it only shows that it might or might '^^• 
 not have been material. An indictment for perjury alleged that. Materiality not 
 on the trial of an indictment for an assault, with intent to commit "p^'^^'ifyu" L 
 a rape, and for a common assault, upon one Ann Bird, the said the face of the 
 Ann Bird swore that she was the wife of one J. Bird, and had indictment., 
 been married to him at such a time and such a place, whereas she 
 was not the wife of the said J. Bird, and had never been married 
 to him ; and the indictment contained an allegation of mate- 
 riality, which was insensible in consequence of an error in copy- 
 ing it from the draft ; it was, nevertheless, contended that it 
 sufficiently appeared on the face of the indictment, that the evi- 
 dence on which the perjury was assigned was material on two 
 grounds. First, that on any indictment for an assault, with intent 
 to commit a rape, it was most material, not only as affecting the 
 credit of the witness, but as going to the very gist of the charge 
 itself, whether the party assaulted had falsely sworn that she was a 
 married woman. Secondly, that by swearing that she was the wife 
 of J. Bird, the prosecutrix supported the allegation that the 
 assault was upon ' Ann Bird,' which would have failed if she had 
 admitted that she was not married to J. Bird. But Cresswell, J., 
 held that it did not sufficiently appear that the evidence was 
 
 (/[•) Keg. V. Sclilesinger, 10 Q. B. 670. 296. 
 
 (Z) Reg. v. Kimpton, 2 Co.x, C. C. ()/() Reg. r. Smith, 1 F. & F. 98.
 
 04 
 
 Apiifircnt 
 luiitfri.ilily <if 
 nil ullliliivit III 
 po.Htiioiii; Ji 
 trial. 
 
 Of I'rrjimj. 
 
 [book v. 
 
 Ajiiiarcnt 
 materiality of 
 evidence set 
 out in an 
 iudictmeut. 
 
 nmturial ; it ini^flit or lui^lit not ho iiiateiial, and that was not 
 Kuflicirnt. {n) 
 
 Wlicic an iiuHctnuuit for perjury stated that a cause wius sot 
 down tor tri.il, and appointed for a particular day, and that the 
 defcnd.Mit ill iliat cause, heforc that day, made an affidavit hofore a 
 jiidLje, in uliicli he stated that he had a good defence to the action, 
 ^\lli(•h he wniild he able to prove at the trial, and that some of 
 the l>ills on whicli it was brou;;ht were void for usury, and then 
 assiL;ned perjury on these al l( 'gat ions ; it was objected that the 
 indictment was clearly bad : the only manner in which such an 
 affidavit could be in a judicial proceeding, or the matters contained 
 in it become material, would be U2)0n an application to postpone the 
 trial of the cause ; but the indictment did not show that any such 
 application was made or intended. Lord Tenterden, C. J., Ijow- 
 ever, thought tliat the occasion, on which the affidavit was intended 
 to be used, might be sufficiently collected from the indictment, 
 and refused to stop the trial, as the defendant, if there was any 
 weight in the objection, might have the benefit of it after he wa.s 
 convicted, (o) 
 
 An indictment alleged that an action came on to be tried in a 
 county court, in which the jDlaintifi' claimed to recover a sum for 
 the expenses of a journey, and another sum for wages, and it was 
 thereupon proved, on the part of the plaintiiT, that the defendant 
 had made certain statements, which were set out, and by which 
 the debt to the plaintiff Avas sought to be proved ; and afterwards 
 averred that the defendant swore that he had not made any of the 
 said statements; whereas he had made them; but there was no 
 averment of materiality. Bylos, J., held that such an averment 
 was not necessary ; but that it would suffice if the materiality 
 could be gathered from the whole indictment, and if the assign- 
 ments of perjury showed upon the face of the indictment that 
 they were material to the issue. And lierc it appeared, on the 
 face of the indictment, that the statements alleged to be falsely 
 made were material to the issue. (_2>) 
 
 (n) IJcg. !•. Ann Bird, Gloucester Spr. 
 Ass. 1842. The indictment for the assault 
 simply stated the assault to be upon Ann 
 ]5ird, without any further description. 
 The learned judi,'e expressed an o]iiiiiou 
 that the indiitiuent was insufficient before 
 the case went to the jury, but he left it to 
 them, and after they had found the pri- 
 soiu'r guilty, arrested the judgment, in 
 order that the prosecutor might bring a 
 writ of error if he tliouLiht tit. Xo writ 
 of error was brought, the prosecutor 
 being unable to incur the expense of such 
 a proceeding. It sometimes happens that 
 upon an objection taken to an indictment 
 before verdict, the judge who tries the 
 case, if he considers the objection valid, 
 directs an acquittal ; but the couree 
 adopted by the learned judge in this case 
 is certainly the better course, as, if the 
 decision be incorrect where the judgment 
 is arrested, it may be reversed uiion error ; 
 whereas if the prisoner is acquitted, and 
 the decision is incoiTcct, there is no means 
 of correcting the error, and as the verdict 
 
 of the jury has been taken, it may be 
 very (luestionnble whether if a fresh in- 
 dictment were preferred a plea of autre- 
 fois acquit might not be successfully 
 pleaded. See ]ier Lord Tenterden, C. J., 
 IJex V. P^owle, 4 C. & V. 502. post. 
 In IJeg. r. Purchase, C & M. 617, tried 
 at the same assizes, Patteson, J., after 
 consulting Cresswell, J., refused to allow 
 any objection to be taken to an indict- 
 ment for embezzlement, except upon de- 
 murrer or in arrest of judgment, and it 
 seems most in accordance with the re- 
 gular course of proceeding that such a 
 course should be adopted in all cases. 
 C. S. G. 
 
 (0) Kex V. Abraham, 1 M. & Rob. 7. 
 The defendant was convicted, but did not 
 appear to receive judgment when called 
 uj>on, and no motion in arrest of judg- 
 nu nt was made. 
 
 (l>) Peg. V. Harvey, 8 Cox, C. C. 99. 
 It was urged that the omission of an aver- 
 ment of materiality was a mere formal 
 defect, and amendable under the 14 &
 
 CHAP. I.] Indictment— Materiality. 65 
 
 It is also necessary that the indictment should expressly con- The iudict- 
 tradict the matter falsely sworn to by the defendant. And the i^ent must ex- 
 general averment that the defendant falsely swore, &c., upon the ^rTdict th^' 
 whole matter, will not be sufficient : the indictment must proceed matter sworn 
 by particular averments (or, as they are technically termed, by to by the de- 
 assignments of perjury), to negative that which is false. It may ^^^'l^^*- 
 be necessary to set forth the whole matter to which the defendant 
 swore, in order to make the rest intelligible, though some of the 
 circumstances had a real existence: but the word 'falsely' does 
 not import that the whole is false ; and when the proper aver- 
 ments come to be made, it is not necessary to negative the whole, 
 but only such parts as the prosecutor can falsify, admitting the 
 truth of the rest, {q) It is suggested that in negativing the de- 
 fendant's oath where he has sworn only to his belief, (■>■) it will 
 be proper to aver that ' he well kneiu ' the contrary of what he 
 swore. (&■) It seems that an assignment of perjury may, in some Assignment 
 instances, be more full than the statement of the defendant, which ^"'^'^'' ^^^^^ ^^^ 
 it is intended to contradict. Thus, where the fact in the affidavit, the "defendant 
 in which the defendant was charged to have perjured himself, 
 was, that he never did, at any time during his transactions with 
 the commissioners of the victualling-office, charge more than the 
 usual sum of sixpence per quarter beyond the price he actually 
 paid for any malt or grain purchased by him for the said commis- 
 sioners as their corn-factor ; and the assignment in the indict- 
 ment, to falsify this, alleged that the defendant did charge more 
 than sixpence per quarter /o7' and in re>^'pect of such malt and grain 
 so purchased ; it was objected that the words in respect of might 
 include lighterage, freight, and many collateral and incidental 
 expenses attending the corn and grain jointly with the charge for 
 the corn or grain, and, that bearing such sense, the defendant was 
 not guilty of perjury ; but the objection was overruled, {t) 
 
 An indictment alleged that it was material, on the hearing of Imperfect as- 
 an information before justices of the peace, to prove that caixls signmcnt of 
 were played in the bar of a public-house between the hours of canirbetween 
 six o'clock and eight o'clock on a certain evening, and that the certain hours, 
 prisoner falsely swore that he was in the bar of the said house 
 from between the hours of six o'clock and seven o'clock until nine 
 o'clock in the said evening, and that he did not play at any game 
 at all, and that no cards or game of cards at all were or was 
 during all the said last mentioned time or between tlie hours 
 aforesaid played therein ; whereas the prisoner did between the 
 hours of six o'clock and eight o'clock in the said evening play at 
 a certain game of cards. Rolfe, B., held that the indictment was 
 bad. The prisoner might have played at five minutes past six, 
 and yet not have played from between six and seven until nine ; 
 the words ' from between six and seven ' might be- any time short 
 of seven, five minutes or five seconds to that hour. The indict- 
 
 15 Vict. c. 100, s. 25, vol. 1, p. 36; {q) Kexr. Terrott, 2 M. & S. 3S5, 3!)0. 
 
 but Byles, J., was clearly of opinion that And see ante, vol. 2, p. 5S5. 
 
 it was matter of substance. It was also (y) Ante, p. 2. 
 
 urged that sec. 20 of that Act {nnt.c, p. (,s-) 2 Chit. Crim. L. 312. 
 
 35), rendered the averment unnecessary ; (<) Kex v. Atkinson, Doni. Proc. 
 
 but Byles, J., was clearly of opinion 1785. Bac. Abr. t\t. Perjury {y). 8eo 
 
 tliat it did not, as it was not one of the Keg. v. Gardiner, ante, p. 52. 
 
 things named in that section. 
 
 VOL. III. F
 
 QQ OfPiTJurij. [book V. 
 
 niciit could not he road as uvcrring tliut the pii.sonor swore that 
 he (lid not j)lay at any time (hnin<,f tliat evening, hut merely that 
 ho did not play at a ])articular period of that evening, namely, 
 from soniu period hofore seven until nine. 'J'liat might he per- 
 fectly true, and yet he might have played hetween six and seven, 
 and so may have i)layed, as is assigned in the indictment, be- 
 tween six and eight, (u) 
 A variance Where an indictment for perjury committed in an information 
 
 between a ma- >)(.f,)vo magistrates, alleged that the prisoner was sworn on an 
 trcnmttcr'" information taken on tlie 11th of Mareli, 1844, and deposed that 
 sworn and tlio ou ' the moniiiig of Thursday last, the 7tli day of March (lie mean- 
 tlatcintlic i„g t,he 7th day of March in tlie year 1804),' he met G. C. ; 
 inattcr b '^ whercas the prisoner did not on the morning of Thursday, the 7th 
 fatal. day of March, 1844, meet G. C. ; it was held that 1804 could 
 
 not be rejected as surplusage, and that the indictment Avas 
 bad. (y) 
 The averments The averments introduced to negative the matter sworn, ought 
 negativing tlic ^q be SO distinct and definite as to inform the defendant of the 
 truth of the particular and precise charges which are intended to be proved 
 
 matter sworn Jr. k • ■<• n • -i-ixi 
 
 ought to be against hmi. An mdictment for perjury committed in the Insol- 
 distinctaud ye^t Debtors' Court alleged, that the defendant swore in sub- 
 precise, stance that his schedule contained a full, true, and perfect account 
 of all debts owing to him at the time of presenting his petition ; 
 whereas the said .schedule did not contain a full, true, and per- 
 fect account of all debts owing to him at that time ; and Lord 
 Tenterden, C. J., after consulting the other judges of the Court 
 of King's Bench, held that the indictment was insufficient, as it 
 was quite impossible that the defendant could know, from allega- 
 tions so vague and indistinct, what was to be proved against him ; 
 the allegations conveyed no information whatever of the particular 
 charges, against which the defendant ought to be prepared to 
 defend himself (■?{■) 
 
 The indictment charged the prisoner with the offence of making 
 
 a false declaration before a justice, that he had lost a pawnbroker's 
 
 ticket, ' whereas in truth and in fact he had not lost the .said 
 
 ticket, but had sold, lent, or deposited it, as a security to one S. C, 
 
 . &c.' Held, that the allegations ' but had sold, lent, or deposited 
 
 it, &c.,' did not render the indictment ambiguous or uncertain, but 
 
 was pure surplusage, which might be rejected, and need not be 
 
 proved. (x) 
 
 Perjury cannot It has been decided that perjury cannot be legally charged and 
 
 be assigned on assigned by showing that the defendant did on two different occa- 
 
 contradictory gJQj^j. Q-^ake certain depositions contradictory to each other with an 
 
 depositions i ,5 i i i • i i i i-i 
 
 without show- averment tiiat each oi them was made knowingly and deliberately, 
 ing which of but Avithout averring or showing in which of the two depositions 
 them is false, ^j^^ falsehood con.sisted. The information stated that the de- 
 fendant, before a committee of the House of Commons, being 
 duly SAVorn, deliberately and knowingh-, and of his own act and 
 
 (m) Keg. V. ^\Tiitehouse, 3 Cox, C. C. (w) Eex r. Ilepper, E. & M. N. P. R. 
 
 86. 210. See Rex r. Miidie, 1 M. & Eob. 
 
 (i) Eeg. V. Garvev, 1 Cox, C. C. 111. 128, post, p. 79. R. r. London, 12 Cox, 
 
 Brady, C. B. This case is very badly C. C. 50. 
 
 reported, and it is very doubtful whether (,r) R. r. Parker, 39 L. J. M. C. 60. 
 
 the wrong year was not given as the date L. R. 1 C. C. R. 225. 
 of swearing the information.
 
 GHAP. I.] 
 
 Indie tmen t — Innuendo. 
 
 67 
 
 consent, did say, swear, and give in evidence, &c. ; setting out 
 the evidence so given. And then the count averred that the said 
 defendant, at the bar of the House of Lords, being duly sworn, 
 deliberately and knowingly, and of his own act and consent, did 
 say, swear, and give in evidence, &c. : setting out in like manner 
 the latter evidence, which was directly contrary to that given 
 before the House of Commons ; and concluded (after averments 
 as to the identity of the persons and places referred to in the evi- 
 dence on both occasions), and so the jurors aforesaid do say that 
 the said Edward Harris did commit wilful and corrupt perjury. 
 And this was holden to be bad on motion in arrest of judg- 
 ment, (y) 
 
 If there be any doubt on the words of the oath, which can be 
 made more clear and precise by a reference to some former matter, 
 it may be supplied by an innuendo ; the use of Avhich is, by refer- 
 ence to precedirig matter, to explain and fix its meaning more 
 precisely. (0) We have seen that, in a case of perjury committed 
 in an affidavit, it was holden that a word which had been omitted 
 by accident in the original document was improperly stated in 
 the indictment, as though it had been in the original document, 
 and that such word ought to have been inserted and explained by 
 an innuendo, (a) In a case where an objection was taken to an 
 indictment, that it added, by way of innuendo to the defendant's 
 oath, ' his house situate in the Haymarket in St. Martin in the 
 Fields,' without stating by any averment, recital, or introductory 
 matter, that he had a house in the Haymarket, or (even admit- 
 ting him to have such a house) that his oath ivas of and concern- 
 ing the said, house, so situated, the objection was overruled, on the 
 ground that the innuendo was only a more particular description 
 of the same house which had been previously mentioned. (6) And, 
 in the same case, the oath of the defendant being that he was ar- 
 rested upon the steps of his own door, an innuendo that it was the 
 outer door was holden good, (c) Where an innuendo is improperly 
 introduced, and any use is made of it in the indictment, it cannot 
 be rejected as surplusage, and it will be bad after verdict, (d) But 
 if the innuendo, and the matter introduced by it, are altogether 
 impertinent and immaterial, and can have no effect in enlarging 
 the sense, it seems that they may be rejected as superfluous, (e) 
 
 The proper office of an innuendo is to fix and point the mean- 
 ing of sometliing that has been previously averred. The indict- 
 ment stated the presenting of a petition to the House of Commons 
 concerning the election of F. H. F. Berkeley, and set out the 
 petition, which stated the said F. H. F. Berkeley before and at the 
 election was guilty of bribery, and that certain agents of the said 
 F. H. F. Berkeley, being trustees of divers public charities, and 
 by virtue of such office entitled to dispose of the funds of such 
 
 Of the 
 innuendo. 
 
 Where it may 
 be rejected. 
 
 Virrier's case. 
 An innuendo 
 held good, as 
 it fixed the 
 meaning of 
 what was jire- 
 viously stated. 
 
 (//) Rfx V. Harris, 5 B. & A. 926. It 
 should have been averred and sliowu in 
 which of the two depo^iitiolls the fulse- 
 liood consisted. 
 
 (z) Rex V. Aylctt, 1 T. 1!. 70. Rex v. 
 Taylor, 1 Campb. 401. Sec ]!ex r. Griepe, 
 1 Lord Raym. 2.56. 2 Salk. 513. And 
 see as to the use of an innuendo, 1 
 8aund. 243, note (4). 1 Chit, on I'lead. 
 
 406. 1 Stark. Crim. Plead. 118, d seq. 
 
 {(() Rex r. Taylor, 1 Campb, 404. 
 Ante, p. 39. 
 
 (b) Hex V. Aylett, 1 T. R. 70. 
 
 {<■) Id. ibid. 
 
 ((I) Rex V. Griepe, 1 Ld. Raym. 260. 
 
 (-■) Roberts r. Camdeu, 9 East, 93. 2 
 Chit. Criui. L. 311. 
 
 F 2
 
 68 
 
 Indictment 
 liulil Mufficicnt 
 to hIiow that 
 the occn-sioM, 
 to which till) 
 mutter sworn 
 reliitcil, was 
 the one to 
 which the 
 allegatiiiM of 
 materiality 
 lefurreii. 
 
 Of Pcrjnvij. [jJOOK V, 
 
 cliaritics, buforc and at the said election were guilty of various 
 (•()nui»t acts, &c., in order to procure the return of the said 
 1<\ II. I"\ Jierkeley. 'J'ho indictnient then averred tl)at one 
 'J'. (Carlisle \v;is a trustee of divers of the said public charities, and 
 ' that shortly before tl)e said election (to Avit), on, &c., the said 
 T. Carlisle, the said F. H. F. Berkeley, and other persons, went 
 to the house of one W. Virrier for the purpose of soliciting the 
 saiil W. Viriier to vote for the said F. H. F. Berkeley at the said 
 election.' The indictinent then stated that certain members of the 
 House of Commons were chosen to try and determine the merits 
 of the said election, and that the said persons so chosen met to try 
 and determine the matter of the said petition. The indictment 
 then averred tliat S. Virrier appeared ' as a witness before the said 
 select committee touching the inatter of the said petition,' and 
 that the said S. Virrier was duly sworn, &c. 'And it then and 
 there became and Avas a material question, Avhether at the time 
 aforesaid, when the said T. Carlisle, the said F. H. F. Berkeley, 
 and the said other persons, so went to the house of the said 
 W. Virrier, the said T. Carlisle said that he Avould give the said 
 W. Virrier 6Z. out of the funds of one of the aforesaid charities at 
 Christmas, whereof the said T. Carlisle was trustee as afore.said, 
 or that he would give him Q>1. at Christmas.' (/) And that the 
 said S. Virrier falsely, kc, did depose, &c., to the select com- 
 mittee aforesaid, ' touching the matters and merits of the said 
 election, and the matter of the said petition, in substance and to 
 the effect following, viz., that before the said election a canvassing 
 party came to her husband's house, and Mr. Berkeley (meaning 
 the said F. H. F. B.), and Mr. Carlisle (meaning the said T. C), 
 came into the house of the said W. Virrier, and Mr. Carlisle 
 asked her if she knew who her husband was going to vote for at 
 the ensuing election ; that she said she believed he was going to 
 vote one and one, and that Mr. Carlisle then said that he Avould 
 act like a sensible man, and ' I will give him the G^. at Christmas ' 
 (thereby meaning that at the said time when the said F. H. F. 
 JBerkeley, and the said T. Carlisle, and the said other persons so 
 went as aforesaid to the house of the said W. Virrier, for the 
 purpose of soliciting him to vote for the said F. H. F, Berkeley, 
 the said T. Carlisle said he Avould give the said W. Virrier 6/. at 
 Christmas, out of the funds of one of the aforesaid public charities, 
 whereof the said T. Carlisle was trustee as aforesaid).' ig) 
 'Whereas in truth and in fact the said T. Carlisle did not at the 
 said time when the said F. H. F. Berkeley, the said T. Carlisle, 
 and other persons went to the said house of the said W. Virrier to 
 solicit him to vote as aforesaid, or during the time Avhen, on that 
 occasion, they were in or at the said house, say to the said 
 S. Virrier that the said T. Carlisle Avould give to the said 
 W. Virrier the Ql. at Christmas, or any sum of money from or 
 out of any of the said public charities, or any sum of money 
 whatsoever at Christmas or at any other time.' (It) The defendant 
 
 (/) The indictment here stated other 
 questions to be material in a similar 
 manner. 
 
 ((/) The indictment here set out more 
 of the evidence. See the case, X"^st, 
 
 p. 7i. 
 
 (/() The indictment here set out other 
 assignments of perjury to the other parts 
 of the evidence, which was set out in the 
 indictment.
 
 CHAP. I.] Indictment — Conclusion of. 69 
 
 having been found guilty, it was moved, in arrest of judgment, 
 that it did not appear either from the evidence said to have been 
 given by the defendant, or from any other part of the indictment, 
 except the innuendo, that the occasion on which the speaking of 
 the words was said to have been material, was the same occasion 
 with reference to which the evidence was given ; that the aver- 
 ment of materiality might relate to one occasion, and the evidence 
 to another occasion of the same kind ; and that the innuendo 
 would not aid, because an innuendo can only explain, and cannot 
 supply the place of a substantial averment. The indictment also 
 alleged that the defendant swore 'touching the matters and 
 merits of the said election, and the matter of the said petition,' but 
 that did not show that her evidence related to the material time 
 before mentioned. Nor did her evidence, as set out, identify the 
 occasion without the innuendo. The innuendo, therefore, did 
 more than explain ; it supplied that which made the evidence 
 material. Lord Denman, C. J., after full argument and time 
 taken to consider, delivered the judgment of the Court as follow^s : 
 — ' Upon this indictment a motion has been made to arrest the 
 judgment upon two objections. 1st, that the allegation of the 
 oath having been taken " touching the matter of the said election, 
 and the matter of the said petition," did not sufficiently point to 
 the matter whereupon the defendant was alleged to have given 
 evidence ; and, secondly, that there was nothing to fix the alleged 
 gift and promise of money to the said visit on the 6th of July. 
 We think, however, that neither objection is sustainable. As to 
 the first, it does sufficiently appear that a competent trial was 
 had, that a material question arose as to the existence of certain 
 facts, to which the defendant deposed, and was therein guilty of 
 perjury. Now although it is certainly true that the averment 
 stating the oath to have been " touching and concerning the 
 matters and merits of the said election, and the matter of the said 
 petition," does not directly refer to what are alleged to be the 
 material questions which arose, yet, where it does sufficiently 
 appear, both by averment and otherwise, that the oath was upon 
 a material point, the allegation " touching and concerning," &c., is 
 wholly superfluous and unnecessary, and the indictment would 
 have been sufficient if it had omitted that part altogether, and had 
 merely stated that the defendant deposed and swore " as follows," 
 &c. The second objection is, that the evidence, upon which the 
 peijury is alleged to have been committed, is not referred with 
 sufficient distinctness to the said canvassing visit, and that the 
 innuendo, by which it is attempted so to apply it, introduces new 
 matter, and is therefore bad. We, however, think otherwise ; for 
 an introductory averment expressly states that there was, in fact, 
 such canvassmg visit, and the innuendo directly refers thereto. 
 It is plain, therefore, that this case comes withm the rule laid 
 down by Lord C. J. De Grey, in Ilex v. Home, (i) which has 
 always been recognized as the true one ; and that the innuendo 
 does only point and fix the meaning of something previously 
 averred, which is the proper office of an innuendo, and that it does 
 
 ((') 2 Cowp. 672,
 
 70 
 
 Of Perjarij. 
 
 [book v. 
 
 ConcUiMion of 
 the iiuli<'l- 
 rnent. 
 
 The old formal 
 conclusion was 
 immaterial. 
 
 The Court will, 
 in general, 
 oblige the de- 
 fendant to 
 plead or de- 
 mur to a de- 
 fective in- 
 dictment. 
 
 Where an in- 
 dictment for 
 perjury is 
 clearly bad, 
 the judge will 
 refuse to try 
 it. 
 
 in no rospoct enlarge it. We tliink, therefore, that there is no 
 ground fur arresting the judgnicnt.' { j) 
 
 An indictment for pcjrjury at common law need not conchidc 
 against the form of the statute. The defendant was indicted for 
 perjury in giving false evidence before the revising ban-ister as to 
 the occupation of a tenement in the borough of Bridgnorth, and 
 the indiccment did not conclude against tlie form of the statute. 
 It was objected that as this was a crime created )jy the 2 Will. 4, 
 c. 45, s. 52, the indictment ought so to have concluded. It was 
 answered that the revising barrister held a court, which was made 
 so by sec. 50 of the same Act. That any false swearing in a 
 court was perjury at common law, and therefore the indictment 
 was good. Lord Abinger, C. B., thought the only question wa.s, 
 whether the statute, by .sec. 50, constituted a court ; for if it did, 
 the oflencc of false swearing in it was perjury at common law, and 
 his opinion was that it did constitute a court, and therefore the 
 indictment was sufficient, (/o) And so it has been held that an 
 indictment for perjury committed by a plaintiff as a witness in his 
 own behalf in a suit in a county court need not conclude ' against 
 the form of the statute.' (/) 
 
 Where all the counts of an indictment for perjury concluded, 
 ' and so the jurors aforesaid upon their oath aforesaid did say that 
 the defendant on &c., at &c., before &c., did commit wilful 
 and corrupt perjury,' it was objected, on error, that this con- 
 clusion was erroneous in using the words ' did say ' in.stead of 
 * do say ; ' but the Court of Queen's Bench held that the whole 
 averment might be struck out, as the perjury was sufficiently 
 alleged b}^ the preceding part of each count ; and as 'perjury ' was 
 not a word of art, like ' murder,' the concluding part of the count 
 ■was immaterial. (?h) 
 
 In general the Court will oblige the defendant to plead or 
 demur to a defective indictment for perjury, {n) And they are 
 very cautious in granting a certiorari to remove it. (o) 
 
 But where an indictment for perjury is clearly bad upon the 
 face of it, a judge at nisij)nii8 may refuse to try such indictment. 
 An indictment for perjury charged that one A. B. had been 
 convicted of certain offences, and that A. B. afterwards obtained a 
 rule to show cause why a neAV trial should not be granted, and 
 that the defendant, in order to prevent the said rule from being 
 made absolute, made the affidavit whereon the perjury was as- 
 signed, but there was no averment that the matters tialsely sworn 
 were material, nor could it be collected from the indictment that 
 they were so ; and Garrow, B., having consulted Abbott, C. J., 
 who concurred with him in opinion that the indictment was 
 clearly bad, held that it was the duty of the judge not to proceed 
 to try the case, (j)) So where in an indictment for perjury the 
 
 U) Keg. V. Yirrier, 12 Ad. & E. 317. 
 
 (^•) Eeg. V. Thoruhill, Salop Sum. 
 Ass. 1838, reported on another point, 8 
 C. & P. 575. In Kex v. De Beauvoir, 7 
 C. & P. 17, the indictment seems not to 
 have concluded 'against the form,' &c. 
 See the note at the end of the case. 
 
 {I) Keg. V. Morgan, 6 Cox, C. C. 107. 
 IMartin. B. See vol. 1. p. 35. 
 
 (?«) Kyalls V. The Queen, 11 A. & E. 
 
 7S1 ; K. V. Hodgkiss, 39 L. J. il. C 
 14 ; and see now the 14 & 15 Yict. c. 
 100, s. 24, vol. 1, p. 35. 
 
 Kn\ 2 Hawk. P. C. c. 25. s. 146 ; Rex 
 V. Souter, 2 Stark. R. 423 ; Reg. v. 
 Burnby, 5 Q. B. 348. 
 
 (0) 2 Hawk. P. C. c. 27, s. 28. 
 
 {■p's Hex V. Tremearne, R. & SI. 
 X. P. R. 147. In Rex r. Deacon, R. & 
 M. N. P. R. 27, Abbott, C. J., refused to
 
 CHAP. I.] Trial. 71 
 
 allegations negativing the matter sworn, were so vague and 
 indistinct as to convey no information of the particular charges 
 against the defendant ; Abbott, C. J., after consulting the other 
 judges of the Court of King's Bench, ordered the case to be 
 struck out of the list, {q) So where an indictment for perjury at 
 common law was found at the Quarter Sessions, and removed by 
 certiorari into the Court of King's Bench, and sent down to be 
 tried at nisi prius ; Gaselee, J., refused to try it, as it was quite 
 clear that the sessions had no jurisdiction over perjury at common 
 law, and the indictment was, therefore, void, {r) But a judge 
 will not allow counsel to argue at length at nisi prius the in- 
 validity of an indictment, for the purpose of inducing the Court to 
 refuse to try it, as that is not the time or place to discuss such 
 disputed questions, (s) 
 
 As to amending an indictment at the trial when there is a 
 variance between the statements in it and the evidence, see vol. 1, 
 p. 52. 
 
 The defendant was indicted in Middlesex for perjury com- Plea of aw^re- 
 mitted in an affidavit ; which indictment, after setting out so much •^°'^" '*^2'*'^- 
 of the affidavit as contained the false oath, concluded with o, proid 
 patet by the affidavit filed in the Court of King's Bench, at 
 Westminster, &c., and on this he was acquitted ; after which he 
 was indicted again in Middlesex, for the same perjury, with this 
 difference only, that the second indictment set out the jurat of the 
 affidavit, in which it was stated to have been sworn in London ; 
 which was traversed by an averment that, in fact, the defendant 
 was so sworn in Middlesex, and not in London : and the Court of 
 King's Bench held that he was entitled to plead autrefois acquit, 
 as the jurat was not conclusive as to the place of swearing ; and 
 the same evidence as to the real place of swearing the affidavit 
 might have been given under the first as under the second indict- 
 ment; and, therefore, the defendant had been once before put in 
 jeopardy for the same offence, (t) 
 
 With respect to the trial of perjury it maybe observed, that the Trial. Jims- 
 courts of Quarter Sessions have no jurisdiction over the offi3nce at diction of the 
 common law, and though they had jurisdiction over it under the ^[^g^^ 
 5 Eliz. c. 9, yet that jurisdiction is taken away by the 5 & 6 ^ t- « vict 
 Vict. c. 38, s. 1, which enacts, that 'neither the justices of the c. 38, s. 1. 
 peace acting in and for any county, riding, division, or liberty, 
 nor the recorder of any borough, shall, at any session of the 
 peace, or at any adjournment thereof, try any person or persons 
 for (inter alia) perjury or subornation of perjury ; ' or ' making or 
 
 try an indictment for a forcible entry, ante, p. 01. In this case the defendant's 
 
 which was bad for want of alleging that counsel pointed out the objections in 
 
 the entry was inana forti, although tlie order to induce the Court to stop the trial, 
 
 counsel for the defendant insisted that and Lord Tenlerden, C. J., said that ' it 
 
 the cas(! should proceed in order that the might be (convenient sometimes for coun- 
 
 defendants might have the benefit of an sel to suggest a point on which an indict- 
 
 acquittul by a jury, as they inti'uded to ment is clearly bad, to save the time of 
 
 institute proceedings for a malicious pro- the Court.' In Hex v. Hepper and Rex 
 
 secution. v. Tremearne the objections to the indict- 
 
 (7) Kex V. Hepper, R. & M. N. V. \\. ment were pointed out by tlie Court. See 
 
 210. aide, p. 70. 
 
 (r) Re.x v. llayncs, R. & JL N. W H. (t) Rex v. Emden, 9 East, 437. As 
 
 298. See Reg. v. Rigby, 8 C. & V. to pleading autrefois acfjuit, see vol. 1, 
 
 770. p. 38. 
 
 (s) Rex r. Abraham, 1 M. & Rob. 7,
 
 72 
 
 Of Perjury. 
 
 [r>ooK 
 
 Examinntinn 
 Lffin'o 11 jus- 
 tice, &c. 
 
 Tiino (if trial 
 at tlio Central 
 Criniiniil 
 Court. 
 
 Rcfisal to 
 hear a charge 
 of perjury 
 wliilst a suit 
 is pending. 
 
 Summary jiro- 
 ccedins. 
 
 Evidence. 
 One witness 
 not suflicient. 
 
 One witness 
 and corrobo- 
 rative evi- 
 dence. 
 
 Where there is 
 only one 
 direct witness 
 tliere must be 
 strong evi- 
 dence to con- 
 firm that wit- 
 
 Riiljoriiinff any oilior person to make a fal.so oatli, affirmation, or 
 declaration punisliahle as perjury, or as a niis(l(;in(;anor. {it) 
 
 F.y the 1-1 <^ '1'.) Vict. c. J 7 (amended hy .SO & 'M Vict. c. .'i.">), no 
 indictment for perjury or subornation of perjury can be found by 
 any grand jury, uides.stlie case has been taken before a justice, &c., 
 as therein mentioned. (?') 
 
 It may Ix; observed that it is the practice of th(; (.'eiitral ( 'rimi- 
 nal Court not to try an indictnient for perjury arising out of a 
 civil suit while that suit is in any way undetermined, except iii 
 ca.ses ill wliich the Court, where the suit is pending, postpones tlic 
 decision of it in order that the criminal charge may first be dis- 
 posed of. {w) 
 
 Where two justices refused to liear a cliarge of perjury alleged 
 to have been committed in a suit in the Ecclesiastical Court, on 
 the ground that that suit was still pending, the Court of Queen's 
 Bench refused to grant a mandamus to compel them to hear the 
 charge, and the Court seem to have thought that the course the 
 justices had taken Avas the most likely to answer the ends of 
 justice, {x) 
 
 Where a person made an affidavit in the Court of Common 
 Pleas, and afterwards, being summoned to appear in Court, came 
 there, and confessed it to be false, the Court recorded his confes- 
 sion, and ordered that he should be taken into custody, and put in 
 the pillory, {y) In answer to the objections of the defendant'.s 
 counsel to this proceeding, it was argued that it was fully justified 
 under the 5 Eliz. c. 9, and that even if the Court could not punish 
 the defendant by virtue of that statute, he might be punished at 
 common law, on the ground that any Court might punish such a 
 criminal for an offence committed \n facie curicc. (c) 
 
 The evidence of one witness is not sufficient to convict the de- 
 fendant on an indictment for perjury ; as in such case there would 
 be only one oath against another, (a) But this rule must not be 
 understood as establishing that two ivitnesses are necessary to dis- 
 prove the fact sworn to by the defendant ; for if any material cir- 
 cumstance be proved by other witnesse.s, in confirmation of the 
 Avitness who gives the direct testimony of perjury, it may turn the 
 scale, and warrant a conviction, (b) 
 
 Upon an indictment for perjury, Coleridge, J., is reported to 
 have said, ' one witness in perjury is not sufficient, unless sup- 
 ported b}^ circumstantial evidence of the strongest kind ; indeed. 
 Lord Tenterden, C. J., was of opinion that two Avitnesses were 
 necessary to a conviction.' (c) In a later case, Avhere the evidence 
 
 («) Rex !•. Sainton, 2 Str. 10S3. Ilex 
 V. Westiiicss, id. ibid. 1 Chit. Crim. L. 
 301. Rex V. Haynes, R. & il. ]S\ P. R. 
 298, vol. 1, p. 51. 
 
 (v) See the Acts, vol. 1, p. 2. 
 
 (w) Rex V. Ashburn, aud Rex v. 
 Simmons, 8 C. & P. 50. 
 
 (a;) Rcg.r. Ingham, 14 Q. B. 396. 
 
 (?/) Rex V. Thorogood, 8 ilod. 179. 
 
 (z) Id. ibid. ; and Bushell's case, 
 Yaiigh. ir>2, was cited. 
 
 (^0 Reg. r. iMiisoot, 10 Mod. 193. 4 
 Black. Com. 358. Pcake on Evid. 10. 
 1 Pliil. on Evid. 1.^1, 7th edit. 
 
 {b) Kex V. Lee, Mich. 6 Geo. 3. MS. 
 
 Bayley, .T., 1 Phil. Evid. 152, 7th edit. ; 
 R. r. Shaw, L. & C 579 ; 34 L. J. 
 M. C. 1C9. 
 
 (c) Champney's case, 2 Lew. 258, and 
 the same point is said to liave been ruled 
 by the same learned judge iu Rex v. 
 AVigley, ibid. note. And ilr. Starkie 
 observes, 'And scmble that the contra- 
 diction must be given by hco direct wil- 
 iiesses, and that the negative supported bj- 
 one witness, aud by circumstantial evi- 
 dence, would not besurticient. It has been 
 so held {lit audivi) by Lord Tenterden, 
 C. J." 3 Stark. Evid. S60, note (g}.
 
 CHAP. I.] 
 
 Evidence. 
 
 of one witness went in support of all the assignments of perjury, 
 and to confirm him another witness Avas examined as to a conver- 
 sation between himself and the defendant, and some entries in the 
 defendant's books were given in evidence ; it was submitted that 
 there was no evidence to go to the jury ; that the rule is that a 
 case of perjury cannot be submitted to the jury on the evidence 
 of a single witness; and as to the evidence of confirmation, itw^as 
 not enough that there should be soviie evidence in confirmation, as 
 in an ordinary case at nisi priiis, where some evidence is necessary 
 to prevent a nonsuit ; but it must be such evidence as, in the 
 opinion of the judge, is really confirmatory in some important 
 respect, and equivalent to the positive testimony of a second wit- 
 ness. Coleridge, J., 'I think that the case must go to the jury, 
 but I also thiuk without the slightest chance of a verdict for the 
 crown. The rule that the' testimony of a single witness is not 
 sufficient to sustain an indictment for perjury, is not a mere tech- 
 nical rule, but a rule founded on substantial justice ; and evidence 
 confirmatory of that one witness, in some slight particulars only, is 
 not sufficient to warrant a conviction.' {d) 
 
 An indictment for perjury committed on the trial of a civil bill 
 alleged that the prisoner, Thomas Towey, falsely swore that ' the 
 note produced is not my handwriting, or any part of it, and the 
 name " Thomas Towey " as a witness is not in my handwriting.' 
 The note purported to bear the marks of Patrick and James 
 Towey as makers of the note, and had on it, ' Witness present, 
 Thomas Towey.' The payee of the note could not read, but he 
 identified the note, and swore that he saw Thomas Towey write 
 on the paper, and saw Patrick and James put their marks on it. 
 Another witness proved that he had subpoenaed Thomas Towey to 
 appear at the sessions as a witness, and that the prisoner then 
 said that there was no occasion to test him ; that he would go to 
 prove the note ; and that at a meeting betw^een the parties to try 
 to settle the civil bill, on the payee of the note saying he had 
 James Towey's note, and would take the law on it unless ho 
 signed a new one, Thomas said that he had been tested (sub- 
 poenaed) to come there, but that there was no occasion to test him ; 
 that he would prove the note. But the note was not produced at 
 this meeting ; and, upon a case reserved, it was held that this 
 evidence was a sufficient corroboration of the evidence of the 
 payee. The prisoner was the only witness to the note, and he 
 could only prove it in his character as a witness, and, therefore, 
 when he said he could prove it, it came to sufficient evidence that 
 he was the witness to the note, (e) 
 
 An indictment for [»erjuvy alleged that in the month of June, 
 1851, the prosecutor had distrained upon the prisoner for certain 
 arrears of rent, and that the prisoner on a trial at nisi prius falsely 
 swore that there was only one quarter's rent due at the time of the 
 said distress. On the trial for perjury the prosecutor positively 
 swore to the fact of there being five quarters' rent due at the time 
 
 ness in order 
 to warrant a 
 conviction. 
 
 Corroboration 
 as to making r 
 note. 
 
 A statement 
 by a prisoner 
 that lie owed 
 certain rent id 
 no corrobora- 
 tion of the 
 evidence of a 
 witness that a 
 
 (d) Koj?. r. Yates, C. & M. 132. See 
 Reg. V. Parker, post, p. 80. 
 
 (c) Reg. V. Towey, 8 Cox, C. C. 328. 
 The payee was cross-examined to show 
 that there was another paper written by 
 
 the prisoner, whieli the payee coukl not 
 distinguisli from the note ; but Hayes, 
 J. , observed that tlie jury had found that 
 the prisoner spoke of ^thc note.'
 
 H 
 
 Of Perjury. 
 
 [book v. 
 
 InrRcr amount 
 of iTiit wiiK due 
 a year after 
 tliat Htatomcnt 
 wius iiukIo. 
 
 Virricr's case. 
 Confirmation 
 on two out of 
 three assign- 
 ments of i)er- 
 jury. 
 
 of llm said distress ; and produced his books Ity wliicli he refrcsljod 
 liis iiK'inoiy ; and for tlio j)urpoHo of" corroborating Ids statomcnt 
 and showing by the oaths of two witnesses tlic falsity of the 
 matter sworn to, the son of the prosecutor deposed to a conver- 
 sation with the prisoner in August, IH'A), in which the prisoner 
 a<hnitt('d that three or four quarters of the said rent were then 
 (hie. The jury convicted ; but, upon a case reserved, the judges 
 were uiiniiiinously of opinion that this was not sufficient corrobo- 
 ration. 'J'hcie was nothing in the evidence of the son relevant to 
 the issue. There was a year's interval between the transaction 
 he spoke of and the time when the di.stress was made, and the 
 money might have been paid intermediately. The oath of the 
 son was quite as consistent witli the oath of the prisoner as with 
 that of the prosecutor. In jierjury there must be something to 
 make the one believed rather than the other, and there was no 
 such evidence in this case. (/) 
 
 In one case where there were three assignments of perjury upon 
 evidence relating to one and the same transaction, at one and the 
 same time and place, it seems to have been considered that the 
 jury ought not to convict on one of the assignments, although 
 there were several witnesses who corroborated the witness who 
 spoke to such assignment on the facts contained in the other 
 assignments. The indictment stated that the defendant swore 
 that Mr. B. and Mr. C. came to her husband's house, that Mr. C. 
 said, ' I Avill give him the 61. at Christmas,' and Mr. B. shook 
 hands with her, and put something into her hand, and told her to 
 give it to lier husband, and that it w'as a sovereign wrapped up in 
 some paper ; and Mr. C told her he should not forget it was in 
 his power to give her husband the 61. at Christmas. The assign- 
 ments of perjury were, 1st, that Mr. C. did not say that he would 
 give the 6/. at Christmas ; 2ndly, that Mr. B. did not put a sove- 
 reign into the hand of the defendant; and, ordly, that Mr. C. 
 did not tell the defendant that he should not forget it was in his 
 power to give her husband the 61. at Christmas. Evidence was 
 given in support of all the assignments of perjury. Lord Den- 
 man, C. J., in summing up, said, that as to the second assignment 
 the proof lay almost entu'ely in the evidence of one witness, and, 
 therefore, he did not .see how the jury could convict of the per- 
 jury imputed ; but that on the others there was a distinct contra- 
 diction of the defendant's testimony by Mr. C, who was supposed 
 to have offered the 61., and several other witnesses ; and he left it 
 to the jury to say whether there was not a strong body of evidence 
 clearly supporting Mr. C.'s denial, (g) 
 
 (/) Reg. V. Boulter, 2 Den. C. C. 396. 
 In Best's Pr. Ev. 440 it is observed, ' Wc 
 apprehend that the old rule and reason of 
 tlu! matter are not satisfied unless the 
 evidence of each witness has an existence 
 and probative force of its own, indepen- 
 dent of the other ; so that, supposing 
 the charge to be one of those in which 
 the law aHows condemnation on the oath 
 of a single witness, the evidence of either 
 would form a case proper to be left to a 
 iurv: or would at least raise a strong sus- 
 picion of the guilt of the defendant. See 
 K. r. Shaw, 34 L. J. M. C. 169. 
 
 (<7) Reg. V. Yirrier, 12 Ad. & E. 317. 
 The learned chief justice considered the 
 most convenient mode of summing up the 
 case to be to treat the second assignment 
 as the first, and the first and tlurd as one, 
 and did so leave the case to the jury, who 
 found a verdict of ' not guilty on the 
 first assignment or perjury for want of 
 suflicient evidence, and guilty on the 
 second,' but said nothing on the third, 
 and tlie verdict was entered accordiugly. 
 The chief justice did not at the time 
 make any note of his summing up, but 
 did so afterwards ; and having a distinct
 
 CHAP. 1.] 
 
 Evidence, 
 
 75 
 
 But where upon an indictment for perjury, alleged to have 
 been committed in making a chai-ge of an unnatural offence, in 
 which the defendant had deposed that he saw the prosecutor com- 
 mitting the offence, and saw the flap of his trowsers unbuttoned, 
 and that he was there five minutes ; and to disprove this the 
 prosecutor swore that he did not commit the offence, and that his 
 trowsers had no flap on ; and to confirm him his brother proved 
 that at the time in question the prosecutor was only absent three 
 minutes, and that the trowsers he had on, which were produced in 
 court, had no flap ; Patteson, J., held that the corroborative evi- 
 dence was quite sufficient to go to the jury ; and, upon a case 
 reserved, the judges held the conviction right. (Ji) So where 
 perjury was alleged to have been committed by the defendant, 
 who was an attorney, in an affidavit made by him to oppose a 
 motion to refer the defendant's bill of costs to taxation, and to 
 prove the perjury one witness was called, and in lieu of a second 
 witness, it was proposed to put in the defendant's bill of costs 
 delivered by him to the prosecutor ; it was suggested that this was 
 not sufficient, as the bill had not been delivered by the defendant 
 on oath. Lord Denman, C. J., 'I have quite made up my mind 
 that the bill delivered by the defendant is sufficient evidence, or 
 that even a letter, written by the defendant, contradicting his 
 statement on oath, would be sufficient to make it unnecessary to 
 have a second witness.' (i) 
 
 Where a prisoner was indicted for falsely swearing that he had 
 paid J. Bland a certain sum of money on a particular occasion, 
 and Bland swore that he received the money in packages, and 
 afterwards counted it, and found it *ll. short ; and the only cor- 
 roboration of his statement was by another person, who also 
 counted it, but had not been present when the money was received ; 
 it was held that this was no corroboration at all. {j) 
 
 An indictment alleged that the prisoner falsely swore at a petty 
 sessions that D. Bees was the father of her illegitimate child. A 
 witness other than D. Rees proved that the prisoner had said that 
 D. Rees ' had never touched her clothes ' at a time when .she 
 generally denied being in the family way ; and Martin, B., thought 
 that though, under some circumstances, such a statement mic^ht 
 have been a sufficient corroboration of the evidence of D. Rees, 
 yet this negation was so far a part of the general denial tliat the 
 jury could not safely convict upon it alone, (/c) 
 
 A count alleged that the prisoner falsely swore that she had 
 shown to one Cuthbert certain invoices bearing certain dates. 
 Cuthbert swore that the prisoner had not shown him the invoices 
 
 remembrance of it, and no doubt of the 
 jury's intention, he (on sunnuons) allowed 
 the postca to be amended by entering a 
 verdict of 'guilty' on the first and third 
 assignments, and ' not guilty ' on the 
 second ; but the Court afterwards held 
 that the aineiidnient ought nut to have 
 l)e('n made, then' being no note ornicnio- 
 randuni of the judge or other docuniciit 
 to amend by. 
 
 (h) Reg. r. Gardiner, 2 Moo. C. C. E. 
 95. See a fuller statement of this case, 
 ante, p. 52, ct srq. 
 
 (?) Kex i: Mayhew, 6 C. & T. 315, 
 
 Gardiner's 
 case. 
 
 One witness 
 and a bill of 
 costs of de- 
 fendant. 
 
 Insufficient 
 corroboration 
 as to the pay- 
 ment of 
 money. 
 
 A statement'' 
 by a mother of 
 a bastard 
 child. 
 
 A witness 
 corroboratca 
 by his own 
 memorandum. 
 
 ( / ) Reg. V. Braithwaite, 1 F. & F. 
 C38, 8 Cox, C. C. iU. Watson, I',., and 
 Hill, J. In the latter report it is stated 
 that ' the prosecutor took it witliout 
 counting it, and carried it to a Mrs. 
 "Watson's, and counted it over.' In the 
 former 'Tlie ]irosecutor took it without 
 counting it, and carried it to an adjacent 
 lane, wiuMv he cDUutcd a part of it, and 
 found it wiong; ho then gave it to a Mrs. 
 Watson, and asked her to count it over.' 
 Mrs. Watson wa.s the witness called to 
 corroborate Bland. 
 
 (/.) Reg. V. Owen, 6 Co.\-, C. C. 105.
 
 '6 Of Pevjurij. [book w 
 
 slic Ii.id sworn lo; htit tliat slie had shown others, and he pro- 
 duced a nicMinraiKhiin, he had made privately at tlie time, of the 
 dates of tlie invoices,' which showed tliat they were not the same 
 :\\i those sworn to by the prisoner ; Cockhurn, C. J., lield the private 
 memorandum a sudicient corroboration. {I) 
 Kiiill'H raso. In a Case where the defendant liad been convicted of perjury, 
 
 oiairof'tho"'^^ fl'iii>(ed in the iinHctment to have been committed in an examina- 
 (Icft-ndaiii. t'ou bt'fore the House of Lords, and the only evidence was a con- 
 
 tradictory examination of the defendant before a committee of the 
 J louse of Commons, application was made for a new trial, on the 
 <^round that in perjury two witnesses were necessary, whereas in 
 that case only one witness had been adduced to prove the corpus 
 delUi'i, namely, the witness who deposed to the contradictory evi- 
 dence given by the defendant before the committee of the House 
 ot Commons ; and, further, it was insisted, that mere proof of a 
 contradictory statement by the defendant on another occasion was 
 not sufficient, without other circumstances, showing a corrupt 
 motive, and negativing the probability of any mistake. But the 
 Court held that the^evidence was sufficient, the contradiction being 
 1)1/ Ihc ixtrtij himself, and that the jury might infer the motive 
 iiom the circumstances ; and the rule was refused, (r/i) And the 
 same principle appears to have been acted upon in a former case. 
 The defendant had first made his information upon oath before a 
 justice of the peace, that three women were concerned in a riot at 
 his mill (which was dismantled by a mob on account of the price 
 of corn), and afterwards, at the sessions, when the rioters were 
 indicted, he was examined concerning those women, and (having 
 been tampered with in their favour) he then swore they were not 
 in the riot. There was no other evidence on the trial of the de- 
 fendant for this perjury, to prove that the women were in the riot 
 (which was the perjury assigned), but the defendant's own original 
 information on oath, which was produced and read, and by which 
 he had sworn that they were in the riot. And the judge thought 
 this evidence sufficient, and the defendant was convicted and 
 transported, (n) And with respect to this evidence, it has been 
 observed, that when the same person has by opposite oaths asserted 
 and denied the same fiict, the one seems sufficient to disprove the 
 other ; and with respect to the defendant (who cannot contradict 
 what he himself has sworn) is a clear and decisive proof, and will 
 warrant the jury in convicting him on either, for whichsoever is 
 given in evidence to disprove the other, it can hardly be in the 
 
 (^ Keg. 7\ "Web.ster, 1 F. & F. 515. even suggested that the prosecutor's 
 
 If tliis case is correctly rejiorted, it de- books could be used to corroborate las 
 
 serves reconsideration. The memorandum evidence. 
 
 was not itself admissible, and could only (m) Kcx v. Knill, 5 B. & A. 929, note 
 be used to lefresh the memory of the wit ■ (a). In Keg. i\ Hook, infra, p. 79, 
 ness ; so that the whole statement restid I'ollock, C. 15., doubted whether any con- 
 on his single oath ; and, even if the me- viotion would now be permitted in suck 
 morandum had been admissible, it would a case as Kex r. Knill. 
 only have been the written statement of {n) Anon. cor. Yates, J., Lancaster 
 the witness and not on oath; .ind the Sum. Ass. ir<U. And afterwanis. Lord 
 time when it was made and tlie veracity ^Maiistield, C. J., and Wilmot, J., and 
 of its statements must have rested on his Aston, J., to whom Yates, J., stated the 
 single oath. See Kexr. Lara, ante, vol. 2, reasons of his judgment, concurred in his 
 1. 521, in support of this reasoning. In opinion. Notes to Kex r. Harris, 5 B. & 
 
 I 
 
 eg. I'. Boulter, si(j)ra, p. 7i, it was not A. 939, MS. Bayley, J.
 
 CHAP. I, 
 
 ] 
 
 Evidence. 
 
 defendant's mouth to deny the truth of that evidence, as it came 
 from liimself (o) 
 
 But where the defendant was indicted for perjury, alleged to 
 have been committed on the trial of an indictment for larceny, and 
 it appeared that the defendant had sworn to several material facts 
 before the committing magistrate, but when he was called on the 
 trial, denied the whole of Avhat he had stated before the magis- 
 trate ; and Rex v. Knill and Anon. (p),were cited to show that 
 the contradiction by the oath before the magistrate would alone 
 be sufficient evidence to convict the defendant ; but Gurney, B., 
 held, that it was not sufficient to prove that the defendant had, on 
 two different occasions, given directly contradictory evidence, 
 although he might have wilfully doue so ; but that the jury must 
 be satisfied affirmatively that what he swore at the trial was false ; 
 and that would not be sufficiently shown to be false by the mere 
 fact that the defendant had sworn the contrary at another time ; it 
 might be, that his evidence at the trial was true, and his deposition 
 before the magistrate false. There must be such confirmatory 
 evidence of the defendant's deposition before the magistrate, as 
 proved that the evidence given by the defendant at the trial was 
 false, {q) 
 
 So where a prisoner was indicted for perjury in evidence given 
 
 77 
 
 Contradictory 
 oath of the 
 defendant not 
 sufficient 
 without other 
 evidence. 
 
 (o) From the Precedent-book of Cham- 
 bre, J., cited 5 B. & A. ibid. 
 
 (^J) Supra, notes {m) and (?t). 
 
 {q) Eeg. V. Wheatland, 8 U. & P. 238. 
 Although at first sight this decision may 
 seem at variance with those cited, per- 
 haps it may not in fact be so. In Rex v. 
 Knill, the Conrt held that 'the jury 
 might infer the motive from the circuni- 
 stances,' none of which are stated in the 
 short minute of tlie case ; some of them 
 might have been such as to show that the 
 one statement was false, or the other 
 statement true. In the Anonymous case 
 the defendant had been tampered with 
 after his first examination, and the evi- 
 dence of the tampering M'itli the defend- 
 ant might lie such as to lead to the 
 conclusion that his evidence on the ti'ial 
 was false. Rut supposing those cases to go 
 the length of establisliing the proposition, 
 that the defendant's own evidence upon 
 oath issullicient to contradict the evidence 
 on which the perjury is assigned, it is 
 conceived they cannot be supported. The 
 })rosecutor may charge tiie perjury eitlier 
 on the one statementor on tjie other, and 
 whichever ho selects it is clear that tlie 
 defendant could not avail himself of a 
 plea of aiitrrfois acquit, or convict in case 
 he were subsequently indicted for the 
 other, and therefore he might be twice 
 put in jeopardy, and perhaps twice con- 
 victed for the same oflence. The judg- 
 ment in Hex v. Harris, f) 15. k Aid. SCiti, 
 is conclusive to sliow that this is a good 
 objection. Again, such evidence leaves 
 it wholly nncertain which of the two 
 statements is true ; now it is a clear rule 
 of criminal law that if the evidence on 
 the part of the prosecution leaves it 
 
 wholly uncertain whether tlie crime 
 charged has been committed or not, the 
 defendant must l',e acquitted ; and as to 
 the observation that ' it can hardly be in 
 the defendant's mouth to deny the truth 
 of the evidence that came from himself,' 
 it must be remembered that there are two 
 statements upon oath, and if he is to be 
 concluded from denying one to be true, 
 the same I'eason would conclude him from 
 denying the other, and it would surely be 
 very unreasonable to hold that he is con- 
 cluded to deny the truth of whichever 
 the prosecutor may think lit to select. It 
 is conceived, also, tliat an indictment 
 charging each of the statements to be 
 false in separate counts could not suc- 
 ceed. The charges being directly con- 
 tradictory the one to the other, it may 
 be tloubted whether the grand jury would 
 be warranted in finding such an' indict- 
 ment ; or, if found, whether it would not 
 be bad on the fai'e of it ; and as the de- 
 fendant could only make a defence to one 
 charge by proving himself guilty of the 
 other, the judge would jirobably insist 
 upon the jtrosecutor electing on which 
 charge he would proceed. ]5ut su[>])osing 
 these diliicultics to be sui'mounted, it is 
 not easy to see how it would he possible 
 for the jury to find a verdict without any 
 evidence to .show which statement was 
 false. If they found a general verdict 
 they would at one and the .same time find 
 eacli of tlie stalcnu'nts to he both true 
 and lalse, unless indeed they were satis- 
 fied that the defendant had, >ipon both 
 occasions, wilfully sworn to matters about 
 which he had no knowledge at all. Ante 
 pp. 2, G(3. C. S. G.
 
 78 
 
 (ff Perjimj. 
 
 [book v. 
 
 Ono sUtc- 
 ment timy 1)0 
 tnio, \\w. otlicr 
 itiiuH'cntly 
 erroneous. 
 
 Contradictory 
 statements of 
 the prisoner, 
 but not on 
 oath. 
 
 Ixtmci :i ^raml jury, :iii<l li'-'" (lofxjsition on the hearing of the 
 ch;ii'gu Ix'lorc the coiiimitling in.'i;,fistnito was put in to sliow that 
 thc! st;it,ciiiciit hcl'orc th(; gratid jury was false ; Tindal, C. J., liohl, 
 that liirlJui- cvi(h'Ufc must he given ; for if tlie two eontradietory 
 statements on oath ;il(;ne were proved, non constat which was the 
 true one. (v) 
 
 And wliere Ihc jjrisoiicr was indicted for perjury, and it ap- 
 peared that she liad made two statements on oath, one of wliich 
 was directly at variance with the other ; Holroyd, J., is reported 
 to have said, 'Althougli you may helieve, that on one or other 
 occasion she swore that which was not true, it is not a necessary 
 consequence tliat she committed perjury ; for there are cases in 
 which a person might very honestly and conscientiously swear to 
 a particular fact, from the best of his recollection and belief, and 
 from other circumstances, at a subsequent time, be convinced that 
 he was wrong, and swear to the reverse, without meaning to 
 sw^ear falsely either time. Again, if a person swears one thing at 
 one time, and another at another, you cannot convict where 
 it is not possible to tell which was the true and which Avas the 
 false.' (s) 
 
 The prisoner, a policeman, laid an information against a pub- 
 lican for keeping open his house after lawful hours on the fast 
 day, and on the hearing of the information swore that he knew 
 nothing of the matter, except Avhat he had been told by another 
 person, and that 'he did not see any 'person leave the publican'' s 
 house after eleven' on the night in question. Perjury Avas assigned 
 on this last allegation. It Avas proved by the clerk of the magis- 
 trates that the prisoner on laying the information said, he had 
 caught the publican ; he had last night seen four men leave his 
 house after eleven ; one of them he could swear to ; it was Wil- 
 liamson ; he knew him by his coat. Another Avitness proved that 
 the prisoner, on another occasion, made the same statement to 
 bim. A third witness, Williamson, proved that, on a third occa- 
 sion, the prisoner repeated the statement Avith the variation, ' One 
 I can swear to ; it AA^as your brolher.' It Avas proved that Wil- 
 liamson and others had left the house on that night after eleA^en. 
 The prisoner on the hearing of the information acknoAvledged that 
 he had offered to smash the case for 30s. He told another Avitness 
 he .should make the publican give him money to settle it ; another 
 Avitness heard him offer the publican to settle it for \l., saying he 
 Avas risking perjury ; and another Avitness proved that the prisoner 
 owned he had received lO.s. to smash the case, and Avas to have \0s. 
 more. It Avas objected that there Avas no sufficient evidence, as 
 these Avere only the statements of the prisoner not on oath against 
 that on oath. But, on a case reserved, it Avas held that the con- 
 viction was right. In addition to the statements of the prisoner, 
 thei'o Avere strong confirmatory circumstances. The prisoner's 
 offering to smash the case for one pound, his admitting that he 
 
 (/•) Eeg. V. Hnglies, 1 C. & K. 519. The 
 false statement before the grand jury was 
 that certain table-cloths were the pro- 
 perty of the prisoner's son, and she had 
 sworn before the magistrates that they 
 were \\c\ husband's ; and evidence of the 
 state of the family Avas given to prove 
 
 that the latter statement must be true ; 
 but Tindal, C. J., thought that there was 
 so much doubt whether the prisoner 
 might not have sworn under a misappre- 
 hension, that he directed an acquittal, 
 ^s) Mary Jackson's case, 1 Lew. 270,
 
 CHAP. I.] 
 
 Evidence. 
 
 79 
 
 had received 10.9. and was to receive 10s. more, and his talking of 
 making- the publican pay to settle it, are strong evidence to show 
 tliat what he stated upon his oath was false, and that his state- 
 ments not upon oath were true, {t) 
 
 In the following case, it was doubted whether the rule, which 
 requires two witnesses, was satisfied by several witnesses, each 
 supporting a separate assignment of perjury, but no two speaking 
 to the same assignment. Upon the trial of an indictment for 
 perjury, alleged to have been committed by an insolvent debtor 
 in falsely swearing to the correctness of his schedule, the de- 
 fendant's account-book, given by him to the Insolvent Debtors 
 Court, was put in, and several persons, whose names were speci- 
 fied in the indictment as debtors, and omitted in the schedule, 
 appeared in the book as debtors to the defendant, and 'paid' was 
 marked to their accounts in the defendant's writing. These 
 persons were called, and stated that they did not pay until after 
 the petition and schedule. It was objected that this was not 
 sufficient evidence, inasmuch as it was only oath against oath, the 
 defendant having sworn that the debts were paid ; a single witness, 
 with respect to each particular debt, swore that it was not paid at 
 the particular time of the schedule. Lord Tenterden, C. J., ' I feel 
 the force of the objection. It is a very important point whether 
 the defendant's book, and the oath on one side, be not met by 
 the oath of the witnesses on the other side. It would be very 
 difficult to give any other evidence. I will not stop the case. If 
 the defendant is convicted, you can move for a new trial.' (it) 
 
 But it has since been held, that the rule wdiich requires two 
 witnesses, or one witness and some sufficient corroboration, applies 
 to every assignment of perjury in an indictment. Where, there- 
 fore, an indictment contains several assignments of perjury, it is 
 not sufficient to disprove each of them by one witness ; but in 
 order to convict on any one assignment, there must be either two 
 witnesses, or one witness and corroborative evidence, to negative 
 the truth of the matter contained in such assignment. The pri- 
 soner was indicted for perjury, alleged to have been committed in 
 an affidavit to obtain a criminal information, in which he had 
 sworn that he had paid all his debts, except two, as to which 
 
 Mudie's case. 
 Several wit- 
 nesses speak- 
 ing to several 
 assignments 
 of perjury. 
 
 The rule ap- 
 plies to every 
 separate as- 
 signment of 
 perjury. 
 
 {t) Eeg. r. Hook, D. & B. 606. 
 Wiglitnian, J., said, ' It is not necessary 
 that there should be two independent 
 witnesses to contradict the particular fact, 
 if there be two pieces of evidence in di- 
 rect contradiction. Here one piece of 
 evidence is that the prisoner himself is 
 proved to have made statements directly 
 contrary to his statement on oath ; that 
 alone would not do ; but in addition to 
 that you have the oatlisof other witnesses, 
 which go to show that that which he 
 stated when not upon oath was true ; and 
 therefore you have two pieces of evidence. 
 I ought rather to put it that, instead of 
 two witnesses being necessary to prove 
 each fact, you must have the evidence of 
 two persons giving evidence in contra- 
 diction to what has b(;en sworn to by the 
 prisoner ; as, one witness who could 
 prove, as in this case, that ou other occa- 
 
 sions the prisoner had stated that wLicli 
 was diametrically opposed to that which 
 he has sworn, and the other witness to 
 give evidence of that which is directly 
 opposite. You have therefore two con- 
 tradictions : you have the contradiction 
 of the prisoner himself, as deposed to on 
 oath by one witness, and you have the 
 contradiction of anotiier in<lepcndont wit- 
 ness, who speaks to the falseiiooil of the 
 fact ; yon, thcrcfoi-e, have two indepen- 
 dent contradictions on oatli.' It is to be 
 observed that, as it was proved that in 
 fact tlie men did leave the ]»ublic-house, 
 as stated by the prisoner when he laitl the 
 information, the only (juestiou reall}' was 
 wii ether lie saw them leave it. 
 
 (vt) Rex V. Mudie, 1 iM. k Rob. 128. 
 The defendant was actiuittcJ ou another 
 grouud ; see the same case, jwst, p. I(i2.
 
 80 
 
 Of I^rjnri/. 
 
 [liOOK 
 
 i V. 
 
 To wlwil tlK> 
 Mile riq Hiring 
 two witnesses 
 cxtciuls. 
 
 Although an 
 
 .issi;;nTnent of 
 ])CTJuiT iimst 
 1)0 proved by 
 two witnesses, 
 it is not neces- 
 sary to prove 
 by two wit- 
 nesses every 
 fact which 
 goes to make 
 out the assign- 
 ment of per- 
 jury. 
 
 An admission 
 stands on the 
 ground of a 
 confession. 
 
 A judge's 
 notes are not 
 admissible in 
 
 there was an cxplaiiati'ui, ;iii(l there were several a.s.signment.s of 
 ])erjury averrinrj that hf h.nl not paid certain persons who were 
 nnnicd (hesidcs the two (•xce])tcd ones), and sudi ])ersons proved 
 thill they li;id not Iteen paid, but only spoke to their respective 
 (lcl)ls not hnvint,' been paid; Tindal, C. J., lield that tliis was not 
 sulhcieiit, and that as to each debt there shouM be; the testimony 
 of two Avitncsses, or of one witness, and such confirmatory evidence 
 as was ('(piivalent to the testimony of a second witness, (v) 
 
 Tlic iiilc that the testimony of a single witness is insufficient to 
 warrant a conviction on a charge of perjury, is an arbitrary nde, 
 founded upon the general apprehension that it woidd be unsafe to 
 convict in a case where there is merely the oath of one man to 1)C 
 weighed against the oath of anotlier ; (iv) and it should be ob- 
 served, tliat this rule does not extend to all the facts, which are 
 necessary to be proved on the trial of an indictment for perjtiry ; 
 but only to the proof of the falsity of the matter upon which 
 the perjury is assigned. Thus, the holding of the court, the 
 proceedings in it, the administering the oath, and even the 
 evidence given by the defendant, may all be proved by one 
 witness, (x) 
 
 The prisoner was indicted for having falsely sworn that one 
 Pressor never was out of his sight between the hours of 7 A.M. 
 and 10 A.M. on a certain day, and two witnesses proved that they 
 saw Prosser at Sh A.M. on that day near Lane's Fallow, but 
 could not tell whether the prisoner was in sight of Prosser or not, 
 as the fences were high. Another Avitness proved that at 9 A.M. 
 the same morning he saw the prisoner alone and on foot at a place 
 more than six miles from Lane's Fallow. It was objected that 
 the assignment of perjury w^as not proved by two witnesses. 
 Patteson, J., ' It is necessary to have two witnesses to prove an 
 assignment of perjury ; but there need not be two witnesses to 
 prove every fact necessary to make out an as.signment of perjury. 
 If the false swearing be that two persons were together at a 
 certain time, and the assignment of perjury that they were not 
 together at that time, evidence by one witness that at the time 
 named the one was at London, and by another witness that the 
 other was at York, would be a sufficient proof of the assignment 
 of perjury.' (?/) 
 
 Where a statement made by a prisoner is in the nature of an 
 admission that a previous statement on oath is false, it is to be 
 dealt with as a confession, and not as falling Avithin the cases 
 which have just been noticed, (z) 
 
 Where on an indictment for perjury committed, on a trial 
 before a Queen's counsel at the assizes, his notes of the evidence. 
 
 (v) Reg. r. Parker, Stamford Sum. Ass. 
 1842. MSS. C. S. G. and C & M. G39. 
 "NVliere an assignment of perjury was in the 
 vague terms that defendant falsely swore 
 tliat he had not treated a certain person 
 to brandy, &c., on a certain day, instead 
 of in tlie definite terms, that he had not 
 treated him at a particular public-house, 
 on a certain day, it was held, that proof 
 of treating at two public-houses by two 
 distinct witnesses, was suthcient to sup- 
 
 port a conviction, because any witness of 
 a treating at a separate time and place 
 on the same day, was sufficient corrobo- 
 ration of the witness who spoke only to 
 one act of treating. R. {•. Hare, 13 Cox, 
 C". C. 174. Denman, J. 
 
 iic) 3 Stark. Evid. S59. 
 
 [i-) See 2 Hawk. P. C. c. 46, s. 10. 
 
 (!/) Eeg. V. Roberts, 2 C. & K. 607. 
 
 (:) See""Keg. v. Hook, D. & B. 606, per 
 Byles, J.
 
 CHAP. I.J Evidence. 81 
 
 proved to be in his handwriting, were tendered in evidence ; evidence, but 
 
 Talfourd, J., held that they were inadmissible. («) u'eVto^ref^r sh 
 
 The incompetency of witnesses on the ground of interest is re- ^j^g memorj'. 
 
 moved by the 6 & 7 Vict. c. 85, 14 & 15 Vict. c. 99, and 16 & 17 Competency of 
 
 Vict. c. 83, and therefore the decisions on that subject are omitted, witnesses. 
 See these statutes, noticed 2'>ost, Evidence. 
 
 Where a bill of indictment was preferred against the defendant Chairman at 
 
 for perjury, alleged to have been committed on a trial at the Q^^^ter Ses- 
 
 • • . sioDs not 
 
 Quarter Sessions, and it was proposed to examine one of the grand allowed to be 
 jury, who had acted as chairman of the Quarter Sessions at the examined as a 
 trial at which the alleged perjury was committed, but that gentle- '^^'^'i^^^- 
 man expressed a desire not to be examined as a witness, and the 
 grand jury wished to know whether they ought to examine him 
 or not ; Patteson, J., held that they ought not to examine him. 
 He was the president of a Court of Record, and it would be dan- 
 gerous to allow such an examination, as the judges of England might 
 be called upon to state what occurred before them in court. (IS) 
 
 In a case of perjury where the statements of the prisoner had Judge of a 
 not been taken down and were pi'oved from memory, some ob- county court, 
 servations being made as to the judge of the county court who 
 had tried the case not being called to prove his notes, though he 
 was willing to appear ; Byles, J., said that the judges of the 
 superior courts ought not, of course, to be called upon to produce 
 their notes. If he were subpoenaed for such a purpose he should 
 certainly refuse to appear. But the same objection was not 
 applicable to the judges of inferior courts ; he saw no reason why 
 they should not be called, especially where, as in this case, the 
 judge was willing to appear, (c) 
 
 It has been holden, that if a count in an indictment for perjury Proof cf tho 
 undertake to set out continuously the substance and effect of what Je^ciidaat 
 the defendant swore when examined as a witness, it is necessary, la substance 
 in support of this count, to prove that in substance and effect he andefcct. 
 swore the whole of that which is thus set out as his evidence, 
 although the count contains several distinct assignments of perjury. 
 It was urged in support of the prosecution that reddendo singula, 
 singulis, the defendant was charged with swearing separately in 
 answer to all the questions that were mentioned. But Lord Ellen- 
 borough, C J., said, 'Suppose you had undertaken to set out the 
 tenor of what the defendant swore, and it should appear by the 
 
 (a) Reg. V. Chilli, 5 Cox, C. C. 197. nieiice in the case of cliairmcu of Quar- 
 
 (b) Keg. V. Gazard, 8 C. & P. 595. In ter Sessions is comparatively slight, espe- 
 Rex V. Jones, 6 C. & P. 137, ou an iu- cially as they are usually present at tho 
 (lictment for perjury the chairman of the Assizes, and the evidence must be given 
 Worcestershire Quarter Sessions ])roved in the county where they are chairmen, 
 ■what a witness swore on a trial before Assuming, however, that the inconve- 
 liini at the (.Quarter Sessions. In Reg. r. niences in their case wereconsidi'rable, it 
 (iazard, the chairman was required as a seems worthy of further consideration 
 witness for the same purpose, luid, not how far that can jjrevent their liability 
 being examined, the bill was ignored. Mr. to be called as witnesses. The general 
 Starkie, after citing this case, adds a rule undoubtedly is, that every person is 
 quccrc, witliout stating any reasoii for so liable to be lompelled to give evidence iu 
 doing. 3 Stark. Evid. btJl. It may, a criminal case, audit may be dangerous 
 however, have struck him that no sutii- to introduce excejjtions whiih may pre- 
 cieut reason could be assigned for the de- vent persons fiom giving evidence either 
 cision. It would, no doubt, be extremely for the crown or for the defendant, 
 inconvenient if the judges were called C. S. 0. 
 
 upon to give evidence as to what occurred (c) Reg. v. Harvey, 8 Cox, C. C. 99. 
 
 before them in court, but the iuconvc-
 
 82 
 
 O/rcrjurt/. 
 
 [book v. 
 
 Proof of the 
 whole of the 
 defendant's 
 testimony. 
 
 cvulcncc licit lit! liad not sworn a material part of that which was 
 set (Hit, would not this have heen latiil ? Having taken upon you to 
 state the nuhntance <ind e[)'ect of what he swore, you are not hound 
 ilown to precise words ; hut must you not prove that he swore in 
 suV)stance and etfect the whole that you have stated ? You aver 
 that part of the defendant's evidence concerning the assurance 
 given hy Lord Headley to be material, and you have not proved 
 that he swore to any such assurance. Did you ever know the 
 rule reddendo slvfjula simjuUs applied to a misrecital ? Is there 
 any authority to show that under sccunduin substantium you arc 
 not bound to prove the suhdance of what you state, as under 
 secundum teiwrem you are hound to prove the ^mor .? To hold 
 otherwise would be to introduce a most dangerous latitude into 
 criminal proceedings. I am decidedly of opinion tliat you have 
 failed in the proof of a substantial allegation. It is essential to 
 the scc\irity of innocence, that words set out in the record should 
 be either literally or substantially proved. A person giving his 
 assurance generally, and giving his assurance for the peiformance 
 of a particular stipulation, are allowed to be entirely different. If 
 a man swears falsely to several material questions, these may be 
 included in distinct counts.' {d) 
 
 It appears to have been ruled, that upon an indictment for per- 
 jury committed at the trial of a cause, the prosecutor must prove 
 the whole of the defendant's testimony, (e) unless the perjury be 
 assio-ned upon a point which first arose upon the defendant's 
 cross-examination, in which case proof of the whole cross-exami- 
 nation has been ruled to be sufficient. (/) And the ground 
 
 {d) Rex V. Leefe, 2 Campb. 134. Tlie 
 learned reporter says, 'I find uo decision 
 or dictum in the books as to the evidence 
 of the words sworn which is necessary to 
 support au indictment for perjury. For 
 the general principU's upon this subject, 
 vide 2 Hawk. V. V. c. 46, ss. 34, 35, 36.^ 
 Conipagnon r. Martin, 2 BI. Kep. 790.' 
 The count upon which the question in 
 this case turned, alleged that a committee 
 was appointed and met to try the merits 
 of a petition complaining of au undue 
 election, that certain questions were ma- 
 terial, and that the defendant swore 
 'toucliing the said material (piestions, and 
 the merits of the said petition,' in sub- 
 stance and effect as follows, — that he, by 
 the directions of J. L., waited upon Lord 
 H. and proposed to the said Lord li. that 
 the said J. L. would decline upon the 
 expenses being paid him, including the 
 previous expenses of the day before ; that 
 Lord H. agreed that the said expenses 
 siiould be paid, including the expenses 
 that had been incurred at ditlerent inns 
 in the town ; that J. L.'s voters were to 
 be applied to in consequence of that ar- 
 rangement for the purjtose of voting for 
 the said Lord H., and that the defendant 
 emmierated the expenses ; that the de- 
 fendant upon his return to the commit- 
 tee of the said J. L. communicated to 
 them what had so passed between the 
 said Lord H. and him ; and that the 
 said committee dispersed to carry the 
 
 said agreement into effect ; and that the 
 said J. L. asked the defendant if the ex- 
 penses were secured ; and that the de- 
 fendant told the said J. L. his lordship 
 had given his assurance //irt< it should he 
 so. The assignments of perjury nega- 
 tived each of these statements, and it 
 was proved that every thing alleged was 
 sworn, except the last words ' that it 
 should be so.' The decision in this case 
 seems questionable. As it is clearly set- 
 tled that a defendant may be convicted 
 of any one distinct assignment of per- 
 jury, though acquitted of all the rest ; see 
 2)ost, p. 99, note {b) ; there seems no 
 reason why proof of having sworn the 
 matter negatived by one assignment should 
 not be sufficient. In the c;vse of obtain- 
 ing goods by false pretences, it is clearly 
 settled that proof of any one false pre- 
 tence, and that the goods were obtained 
 by that pretence, is sufficient, ant^, vol. 
 2, p. 598 ; and that is a stronger case, 
 because there the indictment in effect 
 avers that all the pretences operated to- 
 wards the obtaining the goods. In per- 
 jury each assignment of perjury is sepa- 
 rate and distinct, and the court wiU give 
 judgment upon one, although all "the 
 others are bad in point of law. Reg. r. 
 Rhodes, 2 Lord Eavm. SS6. C. S. G. 
 
 (<-) Hex r. Jones, Peake, N. P. C. 37, 
 Loi-d Keiivon, C. J. 
 
 1/) Rex V. Dowlin, Peake, N. P. C. 
 170, Lord Kenyon, C. J.
 
 CHAP. I.] 
 
 Evidence. 
 
 83 
 
 upon which proof of the whole of the examination or cross- 
 examination was ruled to be necessary in these cases appears to 
 have been, that possibly the defendant might have corrected in 
 some part of such examinations any mistake he had made in other 
 parts. But it is observed, that this doctrine of compelling the 
 prosecutor to prove more than a prhnd facie case is an anomaly 
 in the criminal law ; that in general the party indicting is not 
 bound to anticipate matters of defence, which it lies on the pri- 
 soner to bring forward ; and that it does not seem that, in this 
 case, the party indicted would sustain hardship in being com- 
 pelled to show that he had corrected the part of his evidence 
 assigned, {g) And it is said by another learned writer, that at 
 most the rule seems to amount to this, that all the evidence given 
 by the defendant, in reference to the particular fact on which per- 
 jury is assigned, ought to be proved, (/i) And the rule hardly 
 seems to be necessary for the protection of the defendant, as it 
 will be open to him to cross-examine the witness by whom his 
 statements upon oath are proved, whether he did not in some 
 other parts of his evidence correct or explain those statements 
 upon which the prosecution is founded, and unless the witness can 
 positively deny any such correction or explanation, or if he admits 
 that they may have occurred, the proof will probably be deemed 
 insufficient for a conviction. And it will of course be open to the 
 defendant to prove that any corrections or explanations were given 
 by him in other parts of his evidence, (i) And it has since been 
 held, upon a case reserved, that on an indictment for perjury com- 
 mitted on the trial of a cause, it is sufficient to go to the jury, if a 
 witness states from recollection the evidence that the defendant 
 gave, though he did not take it down in writing, and cannot say 
 with certainty that it was all the evidence the defendant gave, if 
 he can say with certainty that it was all he gave on that point, 
 and that he said nothing to qualify it. {j) 
 
 Where a prisoner is indicted for perjury in evidence given on 
 the trial of a cause, it is only necessary for the prosecution to prove 
 so much of that evidence as is relevant to the matter in issue on 
 the trial for perjury ; but if the prosecution prove the whole of his prisoner's cvi 
 evidence, and it refers to any deed or other document, which is so '''^."'^^ ^'t '^ , 
 mixed up with it, that it is necessary to be read in order to make matter in 
 the evidence intelligible, the prisoner is entitled to have it put in question ou 
 
 Proof of all 
 that was given 
 on the par- 
 ticular point is 
 sufficient. 
 
 The prose- 
 cutor need 
 only prove so 
 much of the 
 
 the trial for 
 perjury. 
 
 (q) 2 Cliit. Criin. L. 312, referring to 
 1 Sid. 418, Rex v. CaiT. 
 
 {h) 3 Stark. Evid. 858. And the author 
 further observes, that the rule even to 
 this effect api)('ars to lie a doubtful one ; 
 for when it has once been proved that 
 particular facts, positively and deliber- 
 ately sworn to by the defendant in any 
 part of his evidence, were falsely sworn 
 to, it seems in i)rinciple to be incum- 
 bent on him to prove, if he can, that in 
 other parts of his testimony lie ex- 
 plained or qualified that which he Iiadso 
 sworn. 
 
 (i) Kex^•. Carr, 1 Sid. 418. 
 
 (j) Hex V. Kowley, K. & M. C. C. K. 
 Ill, and K. k M. N. P. R. 229, where 
 
 Littledale, J., is re[iorted to have said, 
 ' 1 take the true rule to be this, that all 
 the evidence referable to the fact on 
 which the perjury is assigned must be 
 proved.' hi Ke.x r.Muuton, 3 (_'. & \\ 408, 
 three witnesses stated what the defendant 
 had said on the trial of an imlictmentfor 
 an assault, and the defendant was con- 
 victed, although none of the witnesses 
 took down the evidence as it was given, 
 and none of them professed to state the 
 wiiole of the evidence given. And this 
 course has been followed in subsequent 
 cases. Keg. v. Meek, reported, I) C. & P. 
 513, as to another point. Peg. v. Ann 
 Bird, Gloucester Spr. Ass. 1812, Cress- 
 well, J. 
 
 Q 2
 
 34 Of Perjury. [book v. 
 
 aiul read for that purpose ; but lie is not entitled to require it 
 to 1)0 regularly proved by calling the attesting witness or the 
 
 like, {k) 
 Proof of au- It is sufTicicnt to support the averment that the party adniinis- 
 
 tlioriiy to III- icriii^ the oath had competent authority for that purpose, to show 
 oftth "''''^ ^''" >" '''*' '"■•'^' instance that he r/c^'cZ as a person having such autho- 
 . ..' iltv Thus, upon an indictment for perjury before a surrogate 
 
 officer Ml IK- in the Ecclesiastical Court, it was ruled, tiiat the tact ot the per- 
 cent. f.,,n who administered the oath having acted as a surr<jgate was 
 suHicient primd facie evidence of his having been duly appointed, 
 and having authority to administer it. And Lord EUenborough, 
 C. J., said. " I think the fact of Dr. Parson having acted as surro- 
 <Mte is sufficient />rimd facie evidence that he was duly appointed 
 and liad competent authority to administer the oath. I cannot 
 for this puqiosc make any distinction between the Ecclesiastical 
 Courts and other jurisdictions. It is a general presumption of 
 law, that a person acting in a public capacity is duly authorized so 
 to do.' (/) But it was liolden, in the same case, that upon its ap- 
 pearing that the surrogate was appointed contrar}' to the canon 
 (which requires that no judicial act .shall be speeded by any eccle- 
 siastical judge, unless in the presence of the registrar or his 
 deputy, or other persons by law allowed in that behalf), liis ap- 
 pointment was a nullity, and the averment that he had authority 
 to administer the oath was negatived, (m) So where perjury was 
 assigned upon an affidavit sworn before Chell, a commissioner, 
 &c., and it was proved that Chell acted as a special commissioner 
 for taking the nffidavits of parties in prison, or unable from sick- 
 ness to attend before a judge ; Patteson, J., held that this was 
 sufficient evidence that Chell was a commissioner, and that it was 
 not necessary to prove the commission under which the affidavit 
 was taken, upon the general principle that a person acting as a 
 public officer must be taken to have authority as such, and that a 
 commissioner for taking affidavits came within that principle, (n) 
 So where an affidavit was alleged to have been sworn before R. 
 G. Whatley, a commissioner, ' then and there being duly autho- 
 rized and empowered to take affidavits in the said county of G. in 
 or concerning any cause depending in Her Majesty's Court of 
 Exchequer,' and it was proved that Whatley had acted as a com- 
 missioner for taking affidavits in the Court of Exchequer for ten 
 years ; but had never seen his commission. He had, however, 
 directed it to be applied for ten years before through his agent, 
 and had been told by him that it had been granted ; it was held 
 that Whatley's acting as a commissioner Mvas pQ'imd facie evidence 
 that he was so. (o) 
 Acting as .1 Where in order to prove an allegation in an indictment for per- 
 Jounty^'Sourt •'"'"^ ^^''^^ ^ county court was duly constituted under tlie 9 & 10 
 Vict. c. 95, a Gazette was put in, but it turned out to be a wrong 
 one ; ^laulc, J., held that proof that the judge acted in the capa- 
 
 (k) Reg. r. Smith, 1 F. & F. 98, («) Rex r. Howard, 1 M. & Rob. 18". 
 
 Erie, J. (o) Reg. r. Newton, 1 C. & K. 460. 
 
 (0 Rex r. Yerelst, SCampb. 432. Rex Atolierlev, Serjt., after consulting Tin- 
 
 tr. Cres-well, 2 Chit. Cr. L. 312. S. P. dnl. C. J. The defendant had requested 
 
 per Lord EUentK.roiigli, C. J. ^Vhatley to act as commissioner in taking 
 
 (wi) Rex f. Vcrelst, supra. tliis particular affidavit.
 
 CHAP. I.] Evidence. 85 
 
 city of a judge of the court, in pursuance of and under the County 
 Courts Act, would suffice, {p) 
 
 It has been held that an indictment for perjury in an affidavit Perjury in an 
 sworn in the Insolvent Debtors Court by an insolvent, respecting f^of/ent'"^ ^^^ 
 the state of his property and expenditure, for the purpose of ob- court, 
 taining an extended time to petition under the 7 Geo. 4, c. 57, s. 10, 
 cannot be supj)orted, without proving that the court by its practice 
 required such an affidavit : and it was also held that such proof 
 was not given by an officer of the court producing printed rules, 
 purporting to be rules of the court, which he had obtained from 
 the clerk of the rules, and was in the habit of delivering out as the 
 rules of the court, but which were not otherwise shown to be sanc- 
 tioned by the court ; the officer professing to have no knowledge of 
 the practice except from such printed rules, {q) 
 
 The taking the oath must be proved as it is alleged. There- The oath must 
 fore, if it be averred that the defendant was sworn upon the Holy ^\ proved as 
 Gospels, &c., and it turned out that he was sworn in some other ^ ^°^ ' 
 manner, according to some particular custom, and not upon the 
 Gospels, the variance will be fatal, (s) But where the allegation 
 in an indictment was, that on the trial of an action the prisoner 
 ' was duly sworn, and took his corporal oath on the Holy Gospel of 
 God,' and the proof was that the witness was sworn and examined ; 
 and it was objected that the particular mode of swearing must be 
 proved, as the evidence given would apply to the oath of a Jew, or 
 person of any other religion than the Christian; Littledale, J., held 
 the evidence sufficient, as the ordinary mode of swearing was the 
 one specified, {t) 
 
 The recital of the place where the oath is administered in the The place 
 
 jurat has always been considered as a sufficient proof that the oath stated in the 
 
 was administered at the place named, (zt) Where, therefore, iJer- •'"■'}* '^ ^^ . 
 
 , •■ .,^' \ \ ^ r' evidence that 
 
 jury was assigned on an answer m chancery, and the defendant's the defendant 
 
 signature to the answer, and that of the Master in Chancery to the "^^'-^^ swom 
 jurat, were proved, and that Soutliampton Buildings, wliich the conclush"* °°* 
 jurat recited as the place where the oath was administered, was in 
 the county of Middlesex ; Lord Tenterden, C. J., held that this was 
 sufficient proof that the oath was administered in Middlesex, (v) 
 So where on an indictment for perjury committed in an affidavit, 
 the original affidavit was produced ; and it was proved to be signed 
 'John Turner,' in the handwriting of the prisoner, and the jurat 
 was 'Sworn in open court at Westminster Hall, the 10th day of 
 June, 1846, By the court,' and it was proved that the words 'By 
 the court ' were in the handwriting of one of the masters of the 
 court, by whom the jurats of affidavits are signed when the affida- 
 vits are sworn in court ; it was objected that it should be shown 
 that the master was in court when the prisoner was sworn before 
 him. Erie, J., ' We have proof of the handwriting of the party 
 sworn, and of the officer, who is authorized to administer the oath ; 
 
 {p) Reg. V. Ward, 3 Cox, C. C. 279. (.v) 3 Stark. Evid. 857. Ku.x v. 11 'Ar- 
 
 Iq) Eex V. Koops, 6 Ad. & E. 198, 1 tliur, Pcake's case, 155. 
 
 N. & V. 828. It was also contended (0 Kex v. Rowley, R. & M. X. W \\. 
 
 forthe defendant that the Insolvent Court 299. 
 
 had no power to make the nde, and that («) Per Lord Tenterden, C. J. Rex v. 
 
 the oU'euce was at any rate not perjury ; Spencer, R. & M. N. P. R. 97. 1 C". & P. 
 
 Init no opiuiou was expressed upon these 260. 
 
 points. (y) Rex v. Spencer, supra.
 
 86 
 
 Of Perjury. 
 
 [book v. 
 
 Upon an in- 
 dictment for 
 perjury 
 against a wit- 
 ness examined 
 as to a l>ank- 
 rnpt's estate, 
 a good peti- 
 tioning credi- 
 tor's debt must 
 be shown. 
 
 Proof of the 
 defendant 
 
 jind wlicii Mil onicer tlius aiitliorizod writes under a proper jurat 
 tin; wtiitls " By the court," 1 think ti»ut tiiat is .suflicient evidence 
 that ihi' aflidavit was sworn before him, and properly sworn in 
 court.' (u') liut a variance a-s to the place of taking the oath will 
 not he material, if it he proved to have been taken in the county 
 where the defendant is indicted, {x) And upon an indictment in 
 Middlesex, it may be shown that the oath was in fact taken 
 in Miildlesex, although the jurat state it to have been sworn in 
 London. (//) 
 
 On a tri.d in Michaelmas term, 52 Geo. 3, of an indictment 
 against a bankrupt for perjury before the commissioners in passing 
 his last e.xaniination under the bankrupt laws then in force, Lord 
 Kilenlwrough said, ' I am strongly inelined to tbink that you ought 
 to give strict evidence of the Ijankruptcy. Unless the defendant 
 really was a bankrupt, the examination was unauthorized. It goes 
 to the authority of the commissioners to administer the oath. 
 Their authority takes its root, not in the commission, but in the 
 bankruptcy. While the commission subsi.sts its validity may be 
 assumed for certain civil purpo.ses; but when a criminal case occurs, 
 unless the party was a bankrupt all falls to the ground. However, 
 I will .save the point' (s) 
 
 The indictment stated that A. P. carried on the business of a 
 builder, and that he was indebted to W. B. in the sum of 100?. and 
 upwards ; that he committed an act of bankruptcy ; that a fiat 
 issued against him, on the petition of W. B. ; that the commis- 
 sioners adjudicated A. P. to be a bankrupt ; that in the prosecution 
 of the fiat it became material to inquire into the estate and eftects 
 of A. P. ; and that at a meeting of the commissioners the defend- 
 ant appeared before them as a witness, and was sworn, &c. It 
 appeared that the debt due to W. B. was much less than 100/., but 
 that there were two other creditors, to each of whom A. P. owed 
 more than 100?. ; therefore, under the 6 Geo. 4, c. 16 (the Bank- 
 rupt Act then in force), s. 18, the Lord Chancellor might, on appli- 
 cation, have directed the substitution of a good petitioning creditor's 
 del>t for that of W. B., but that in fact this had not been done. It 
 was objected that the defendant was entitled to be acquitted, as 
 the averment that W. B. was a creditor to the amount of 100/. was 
 not only not proved, but was disproved. The counsel for the crown 
 cited Rex v. Rupliael, {a) where Abbott, J., held, that on an indict- 
 ment against a third person, examined before commissioners of 
 bankrupt, their declaration that a party was a bankrupt is suffi- 
 cient. The defendant having been convicted, the judges, upon a 
 case reserved, held the conviction wrong, {h) 
 
 On an indictment for perjury, in an answer in chancery, sworn 
 
 (w) Keg. V. Turner, 2Q. k K. 732. 
 
 (x) Hex r. Taylor, t>kin. 403. 
 
 (;/) Hcxr. Einden, 2East, 437. 3 Stark. 
 Evid. 858. 
 
 (c) R. r. Punshon, 3 Campb. 96. See 
 K. V. Bullock, ] Taunt. 71 ; see the pre- 
 sent Bankrupt Acts, vol. 2, pp. 440, 446. 
 
 (a) Manning's Ind. 232. 
 
 (6) Keg. v. Ewington, 2 M. C. C. R. 
 223. C. & il. 319. lu the course of 
 the argnraent before the judges, Lord 
 Abiuger, C. B., said, 'You camiot dis- 
 
 pute the authority of the commissioners 
 to take the preliminary proceedings under 
 the tiat, to ascertain whether the party 
 should be adjudged bauknipt or not. 
 They were authorized to do that by the 
 fiat of the Lord Chancellor ; but you say 
 that if there was no good petitioning 
 creditor's debt, the commissioners had no 
 authority to inquire and examine wit- 
 nesses as to the bankrupt's property. ' See 
 vol 2, pp. 440, 446.
 
 CHAP. I.] 
 
 Evidence. 
 
 87 
 
 before the passing of the Judicature Acts, the bill must be proved having taken 
 
 in the usual way ; the proof of the defendant's signature, and ^^° °''**^ ii ^^ 
 
 that of the master before whom the answer purports to be sworn, chanceV" 
 
 is evidence of the defendant's having sworn to the truth of 
 
 the contents, without calling the person who wrote the jurat; 
 
 or further, proving the identity of the defendant as being the 
 
 very same person who had signed the answer, (c) But unless 
 
 there be such proof of the defendant's signature, or some other 
 
 sufificient proof to identify him as the person by whom the oath 
 
 was taken, no return of commissioners, or of a master in chancer}^, 
 
 will be sufficient, {d) In a case upon the 31 Geo. 2, c. 10, s. 24, Ti-oof upon 
 
 (for taking a false oath to obtain administration to a seaman's °^*^.'"i'^g 'i''- 
 
 £c i. • J . •!,• \ -i. Ill , ministration of 
 
 enects, m order to receive his wages), it Avas holden necessary to a seaman'.? 
 
 prove, directly and positively, that it was the prisoner who took effects, 
 the oath, (e) 
 
 An indictment for perjury alleged that the prisoner, ' being a The state- 
 trader Avithin the meaning of the statutes in force relating to bank- ™ents of facts 
 rupts, but owing debts amounting in the whole to less than 300Z., veilt's'petition 
 and having resided for six calendar months next immediately pre- ai-e evidence 
 ceding the time of filing his petition within, &c.,' did present his ^"^"^^^^ him of 
 petition to the Insolvent Court in Portugal Street ; and the only °^^ ^'^ '^' 
 evidence given in suj^port of these allegations was the prisoner's 
 petition filed in that court, which alleged the very same matters 
 as facts upon the truth of which, with others, the prisoner rested 
 his application to the insolvent court ; and, on a case reserved, it 
 was held that, as against the prisoner, the statements in the peti- 
 tion, uncontradicted by any conflicting testimony, were abundant 
 evidence to prove those allegations in the indictment. (/) 
 
 An indictment for perjury alleged that W. Turner made his will Where the 
 and appointed J. H. Turner, W. B. Wood, and W. T. Abud the ex- InJ^tJ^^"," *7 
 ecutors thereof, and to prove this averment the probate of the will perjury relate'" 
 was tendered ; it was objected that, as the will applied both to to personalty 
 lands and personalty, the original will must be produced and only and the 
 proved. Erie, J., ' A will may in law have two operations — the oFcxecutors 
 one, as to realty, respecting which the ecclesiastical courts have no the probate is 
 jurisdiction ; the other, as to personalt}^ and executors, in which ^^^ proper 
 the ecclesiastical courts have sole jurisdiction, and therefore, with testator iuad(^ 
 respect to the latter, the evidence of the attesting witness is not a will, 
 necessary here. If all the matters in this indictment relate to 
 personalty and executors, the probate is the proper proof ; but if 
 there is any question here raised as to whether the testator devised 
 lauds, the original will must be produced, and one of the attesting 
 witnesses called. But if it is only to be shown that the deceas(_>d 
 made a will, and left certain persons executors of it, I shall hold 
 the production of the probate to be the proper proof {(j) 
 
 On an indictment for peijury in a deposition sworn by the pri- After proof of 
 soner as a proof of a deljt against a bankrupt, it appeared that the *i^*^ '°^^ ^^'^ 
 jiroof was placed according to the practice on a file of the proceed- bankruptcy" 
 
 (c) Rex V. Benson, 2 C'ampb. 508. Rex 
 V. Morris, 2 Burr. 1180. 1 Leach, 50. 
 The reason why the Court of Chancery 
 jnade a gciieval order that all defendants 
 should fiicjn their answers was with a view 
 to the more easy proof of perjury in an- 
 
 swers. 2 Burr. 1189. Sec Reg. r. Tur- 
 ner, 2 C. & K. 732. 
 
 Id) Id. ibid. 
 
 (c) Bradv's case, 1 Leach, 327. 
 
 (/) Reg! V. Wcstley, Bell. C. C. 1J>3. 
 
 Ig) Reg. V. Turner, 2 C. & K. 732.
 
 88 
 
 ■oronilary ovi- 
 iloiK-u iH ad- 
 
 llliMsilllo. 
 
 Of /'rijiiri/. 
 
 [book V. 
 
 Proof of 
 lii.'itcrialily. 
 
 Evidence of a 
 
 deceased 
 
 witness. 
 
 Evidence that 
 judgment had 
 been entered 
 up. 
 
 in<:,'s, wImto it icmaiiioil for scvcr.-il inoiiLlis, and tlic pri.soner 
 liaviii;^' (Irinaiidccl an inspection of the file, it was li.indcd to luni 
 by tli(! usiicr, and shortly afterwards returned to the iislier, who 
 restored it to tlie customary phice of deposit without examination. 
 It was afterwards discovered that tlie proof had disappeared, and 
 all searches for it had proved incfifectual ; and an office copy under 
 the seal of the court was tendered in evidence. It was objected, 
 on the authority of 'J'aylor on evidence, [It) tiiat a co|)y could not 
 be received in evidence in a case of perjury; but Hill, J., held 
 that, on proof that the original had been lost or destroyed, second- 
 ary evidence was admissible. (?) 
 
 In order to show the materiality of the deposition or evidence 
 of the defendant, it is essential, where perjury is assigned in an 
 answer to a bill of equity, filed before the passing of the Judicature 
 Act, to produce and prove the bill, (j) or if the assignment is on 
 an atUdavit, to produce and prove the previous proceedings, such 
 as the rule nisi of the court, in answer to which the affidavit in 
 question has been made, (k) 
 
 If the as.signmcnt be on evidence on the trial of a cause, in ad- 
 dition to the production of the record (1) the previous evidence 
 and state of the cause should be proved, or at least so much of it as 
 shows that the matter sworn was material. So also such prefatory 
 circumstances and innuendos as are averred upon the face of the 
 indictment for the same purpose must be proved (m) 
 
 It is reported to have been held upon the trial of an information 
 for perjury, alleged to have been committed on the trial of an eject- 
 ment, that in order to prove the perjury a witness might prove 
 "what a witness, who was since dead, swore on the trial of the eject- 
 ment, (n) It has been observed that this ruling seems to be utterly 
 inconsistent with the principles now established, (o) 
 
 Some counts in an indictment for perjury committed in an affi- 
 davit to oppose a summons to set aside a judgment obtained by the 
 prisoner alleged that the prisoner 'caused to be entered up final 
 judgment in the said action ;' and a clerk from the judgment office 
 produced from that office a book in which judgments are entered 
 up, and stated that interlocutor}' judgment was signed in the action, 
 and that final judgment was afterwards entered up; it was objected 
 that the roll or an examined copy of it ought to have been produced. 
 It was answered that the 'entering up' of final judgment always 
 takes place before there is any roll carried in, and is the making 
 of the entry in the book produced ; (p) and Lord Denman, C. J., 
 held the proof sufficient, {q) 
 
 (h) S. 1379, p. 1232, tliird edit. 
 
 (1) Itog. r. Jliliics, 2 F. & F. 10. 
 
 {j ) 3 Stark. Evid. 859, citing Hex v. 
 Allord, 1 Leach, 150. 
 
 (k) 3 Stark. Evid. 859. 
 
 (0 Rex V. lies, Hard. 118. Bull. N. P. 
 243. 2 Hawk. P. C. c. 46, s. 57, 3 Staik. 
 E\id. 855. 
 
 (ni) 3 .-^tark. Evid. 859. 
 
 (h) 1\cx r. Buckworth, T. Raym. 170, 
 perTwisden, J., and Morton, J., against 
 Ki'iling, (.". J., who said it was not to be 
 allowed, because between other parties. 
 
 (o) 3 Stark. Evid. 861, where the case 
 
 is erroneously cited as Taylor v. Brown. 
 The report does not show for what pre- 
 cise purpose the evidence was adduced ; 
 if for tiie purpose of proving what passed 
 on the former trial in order to show that 
 the matter was material, qu. whether it 
 was not admissible. C. S. G. 
 
 ip) Fislier r. Dudding, 9 Dowl. P. C. 
 872. 
 
 (q) Eeg. r. Gordon, C. & M. 410. The 
 prisoner was convicted, and no motion 
 made on the point, as there were other 
 counts which did not allege the entering 
 up of the judgment.
 
 CHAP. 
 
 I-] 
 
 Evidence. 
 
 Where, in order to prove an allegation in an indictment for 
 perjury that a cause came on to be tried, the nisi prius record was 
 produced, and it appeared that no j^ostea had been indorsed upon 
 it, but there was a minute, in the handwriting of the officer, in- 
 dorsed upon the jury panel which was affixed to it, in these words, 
 'Verdict for plaintiff, damages Is.' Lord Tenterden, C. J., after 
 consulting the other judges of the Court of King's Bench, held 
 that the officer's minute was sufficient evidence that the trial took 
 place, (r) 
 
 Where an indictment for perjury alleged that certain issues 
 came on to be tried and were tried before the sheriffs of London 
 upon the execution of a writ of trial, and the postea being pro- 
 duced, the verdict appeared to have been taken on one of two 
 issues, without any statement as to the event of the other, the 
 Court of Queen's Bench held that the allegation w^as proved by 
 the record and postea taken together. It appeared that the jury 
 was summoned and sworn to try ' the issues :' and if on one of 
 the issues the jury had been wdthdrawn, yet both would have 
 come on for trial and have been tried, (s) 
 
 An indictment alleged that a certain action came on to be tried 
 in due form of law, and was duly tried by a jury of the county 
 in that behalf duly sworn. The record stated that the jury were 
 sworn, and after evidence given withdrew to consider their verdict, 
 and after they had agreed returned to the bar to give their ver- 
 dict, 'whereupon the plaintiff being called, comes not, &c.' It was 
 objected that the trial was not complete, as the jury had not given 
 any verdict. It was answered that, as far as the jury were con- 
 cerned, the cause was by them duly tried. They were sworn to 
 ' truly try and a true verdict give,' and they might try and yet not 
 give a verdict ; and the objection was overruled, (t) 
 
 An indictment for perjury' averred that there was an action 
 pending between W. C. and B. and the defendant. The writ 
 was not produced, but to show the existence of the action, the 
 attorney for the plaintiffs in the action produced a notice of set-off 
 entitled in the cause, which he had received from the attornies for 
 the defendant in the action ; it was objected that the notice of set- 
 off was inadmissible, as at most it was only secondary evidence ; 
 and the objection was held good, (u) 
 
 On a trial for perjury at the Central Criminal Court the caption 
 of the same court of oyer and terminer or gaol delivery at which 
 the indictment for perjury is preferred, the former indictment wit!) 
 the indorsement of the prisoner's plea, the verdict, and sentence 
 of the court thereon, together with the minutes of the trial, made 
 by the officer of the court, are sufficient evidence of the former 
 trial, without a regular record or any certificate thereof (y) 
 
 An indictment alleged that there being a certain plaint lodged 
 against the prisoner in a county court, the same came on to be 
 
 89 
 
 Officer's mi- 
 nule of a ver- 
 dict at nisi 
 prius. 
 
 Evidence that 
 issues came oa 
 to be tried. 
 
 An averment 
 that an action 
 was tried, lield 
 to lie proved, 
 thouijh the 
 plaintiff was 
 nonstiited 
 when the ver- 
 dict w;is about 
 to be given. 
 
 A notice of 
 set-off is not 
 evidence that 
 an action was 
 pending. 
 
 Pi'oof of a 
 trial at the 
 Central Crimi- 
 nal Court. 
 
 Evidence of a 
 trial and ap- 
 pearance in a 
 county court. 
 
 (r) Eex V. Brown, M. & M. 315. 3 
 C. & P. 572. 
 
 (s) Keg. V. Schlesinger, 10 Q. V>. 670. 
 
 [t) Reg. V. Bray, 9 Cox, C. C. 218. 
 The Recorder, after consulting Brarawell, 
 B., and Byles, J. 
 
 [u) Rex V. Stoveld, 6 C. & P. 489. 
 
 Lord Dcnman, C. J. 
 
 (r) Heg. r. Newman, 2 Don. C. C. 
 300. The trial for peijury was in Decem- 
 ber, 1851 ; the trial on whi<'h tlie per- 
 jury was comniitti'd was at a session held 
 on the Vli\\ of May, 1851, and the cap- 
 tiiiii was dated on that day.
 
 DO 
 
 Of Perjury. 
 
 [book v. 
 
 Proof of a 
 suit in tlie 
 I'rcroijMtivc 
 Court. 
 
 lu a ItasUinly 
 case the siim- 
 inuiis must lie 
 jirovcd ; it is 
 not sutticient 
 to prove the 
 ininutos of the 
 jiroceetiings 
 liofnri' the 
 justices. 
 
 trioil, nii<l thai tlio prisoner w.'is duly sworn, &c. It wa.^; proved by 
 tlio clerk of the court, th;it. such u phiint had been filed, (w) and it 
 wa.s i)r()p().sed to [(ive i)arol evidence of the proceedings on the 
 trial ; hut it appearing that there was a nninute book wherein were 
 entered ilu! plaints, the appearance of the parties and the result 
 of th(! trial, it was objijcted that that book ought to be produced, 
 in order to prove the plaint and the appearance of the prisoner. 
 'J'hat the evidence of the prisoner could not be proved by parol 
 if it was taken down in the book. Aiul lastly, the summons must 
 1k^ proved in order to give the court juri.sdiction. Maule, J., ' I 
 think the want of the proof of the summons is answered by the 
 fact of the prisoner's appearance, which may be proved by parol. 
 That is sufficient to carry the case on ; but, if it should be neces- 
 sarv, I will reserve the other points ;' and the evidence wets 
 received, {x) 
 
 Where an inibctment is preferred for perjury committed on the 
 liearing of a plaint in the county court, the only proper course to 
 prove the proceedings in that court is to produce the clerk's book 
 or a copy having the seal of the court, and purporting to be signed 
 and certified as a true copy by the clerk of the court under the 
 t) & 10 Vict. c. 95, s. 111. {y) 
 
 An inilictment for perjury alleged that a certain suit was insti- 
 tuted in the Prerogative Court of Canterbury, in which M. S. 
 ]klerryweather was plaintiff, and J. Turner, J. H. Turner, W. B. 
 Wood, and W. T. Abud, defendants ; and in order to prove this 
 allegation, an officer from the registrar's office in the Prerogative 
 Court produced from the office an original allegation put in on 
 behalf of M. S. Merryweather, and the original allegation put in 
 on behalf of the executors in answer to it, and proved the signa- 
 tures of two advocates, who acted as advocates in the court, to 
 each of the allegations ; and Erie, J., held that this was sufficient 
 proof of the suit having been instituted as alleged, {z) 
 
 An indictment alleged that the prisoner appeared at a petty 
 sessions in pursuance of a summons requiring him to answer a 
 complaint of A. Jones touching a bastard child of which she 
 alleged him to be the father, and alleged that he committed 
 perjury on the hearing of that complaint. The magistrate's 
 clerk produced a book containing the minutes made by him on 
 the ocCcX.sion, headed 'Ann Jones v. Richard Newall, affiliation,' 
 and then the evidence was set out. There was no other evidence 
 of the proceedings before the justices. It was objected that the 
 summons ought to have been produced, or notice to produce it 
 served on the prisoner. Wightman, J., ' The 7 & 8 Vict. c. 101, 
 provides that " upon complaint by the mother, the justices shall 
 have power to summon the putative father, and upon the appear- 
 ance of the person so summoned, or upon proof of the service of 
 the summons, to hear and adjudicate upon the case." A summons 
 is, therefore, necessary to give the magistrate jurisdiction ; and to 
 
 (w) It is not stated how this was Brarawell, B. . who said he had ruled in 
 
 jiroved. 
 
 t,x) Uog. V. Ward, 3 Cox, C. C. 279. 
 It is not stated how the evidence given 
 by the prisoner was proved. He was 
 convicted. 
 
 (i/) Keg. r. liowlaud, 1 F. & F. 72. 
 
 the same way previously, and held that 
 the proceedings on hearing the plaint 
 couKl not be proved by the assistant 
 clerk of the court, 
 (s) Reg. r. Turner, 5 C. & K. 732.
 
 CHAP. I.J 
 
 Evidence. 
 
 91 
 
 prove that they had jurisdiction in this case you must prove that 
 the prisoner was (hdy summoned, either by production of the 
 summons, or by secondary evidence after notice to the prisoner to 
 produce it. The minutes of examination in this case are no more 
 than the minutes of a shorthand writer, and only answer the 
 purpose of refreshing the memory of the witness, (a) 
 
 Upon an indictment for perjury committed at the hearing of an 
 information in bastardy, laid under the 7 & 8 Vict. c. 101, which 
 indictment alleged the application for a summons, the issuing 
 thereof, and the hearing upon it, proof of the information, of the 
 appearance of the defendant, of the hearing, of evidence being 
 given on both sides, and of no objection being made of the want of 
 a summons, is sufficient to shew jurisdiction in the justices who 
 heard the information, without proof of the summons which issued 
 upon that information ; and a conviction for jDerjury upon the above 
 indictment was upheld, (h) 
 
 Where, upon an indictment for perjury alleged to have been 
 committed on the trial of an appeal against an order of removal, 
 the sessions book was produced by the clerk of the peace in order 
 to pi'ove the trial of the appeal, and the clerk of the peace stated 
 that he would, if applied to, have drav/n up a record of the trial 
 of the appeal on parchment ; it was held tha^ the sessions book 
 was not sufficient evidence of the trial of the appeal, (c) But it 
 has since been held that the sessions book containing the orders 
 and other proceedings of the court made up and recorded after 
 each sessions, with an entry containing the style and the date of 
 the sessions, and the name of the justices in the usual form of a 
 caption, no other record being kept, is good evidence of the trial 
 of an appeal against an order of removal, [d) 
 
 Where perjury was assigned on the answer to a bill in chancery 
 as it originally stood, which bill had afterwards been amended, 
 and the bill was produced by a clerk from the six clerks' office, 
 who stated that it was an amended bill, but that it was the original 
 record which was filed in the six clerks' office in the first instance, 
 but altered by the amendments, which were made by altering tlie 
 original record, and that these alterations were all made by a clerk 
 in the six clerks' office, whose handwriting he knew, and that that 
 person wrote the word ' amendment ' against each alteration ; but 
 none of the alterations related to the particular parts of the answer 
 upon which the perjury was assigned. It was contended that 
 this was not sufficient evidence of what the bill was before the 
 alterations, and that the person who made the alterations ought 
 to be called. But Lord Tenterden, C J., was of opinion that the 
 amendments wei'e sufficiently proved, and also thought them not 
 material to the case, (e) 
 
 In one case, upon an indictment for perjury, a copy of a bill 
 in chancery was rejected which contained many abbreviations, (/) 
 
 (a) Reg. V. Newell, 6 Cox, C. C. 21, 
 A.D. 1852. Tliree duplicati- orders had 
 been made, Init none of them was pro- 
 duced, or notice to produce any of thcni 
 given. See the sul)se(iuent cases of l!eg. 
 V. Berry, ant<\ p, 17, and Keg. v. Siiu- 
 monds, ante, p. tt ; see Iteg. v. Wiiyhrow, 
 8 Cox, C. C. 438 ; Keg. v. llurrell, 3 F. 
 
 & F. 271. K. V. ."^mith, infra. 
 
 (b) K. V. Smith, 37 L. J. M. C. 6 ; see 
 K. V. Carr, 10 Cox, C. C. C. 5(14. 
 
 (c) Rex V. Ward. 6 C. & P. 366, Park, 
 J. A. J. 
 
 (d) Reg. V. Yeoveley, 8 A. & E. 806, 
 (r) Kex V. Laycock, 4 C. & P. 32G. 
 (/) Such as ' possd of consible pul este.' 
 
 Proof of the 
 tri:il of an 
 appeal. 
 
 Amended bill 
 in chanceiy 
 evidence of 
 the original 
 bill. 
 
 A copy of a 
 bill in chan- 
 cery conUiin-
 
 .)j Of P('vjiiv)j. [book V. 
 
 iMK' abl.rovm. and liM.l all llir .I:ites. in figures, it being proved tliat in tlic 
 i.MimiMin. oriiMiial hill all the words were written at full lengtli, and all the 
 '■'"■'''"'• dares expressed hy words, {g) 
 
 It seems that if a party produce an affidavit, purporting to have 
 been made hy him before commissioners in the country, and make 
 usi' of it in a mf)ti(tii in the cause, it will Ije evidence against liim 
 that li(! madf it. {Ii) 
 Tl.o fart of .a WImiv, upon an indictment for perjury committed upon a trial, 
 
 .i,.f..nii!mi in .1 tlu! .supposed perjury arose upon evidence given in reply to tlie 
 niiMo haviiit? t(»stimony of one of the defendants on tiie former trial, who was 
 lMi"l!«*T''ro^^^^^^^ ae«piitted and examined as a witness, and the indictment for pcr- 
 l.y I'vrol. jurv di<l not state his acquittal, nor did the minute of the verdict 
 
 pnuliuxHl show it ; it was lield, that although the evidence of a 
 .shorthand writer, who stated that the defendant was actpiitted and 
 then examined, was not any proof of his acquittal, yet it wa.s good 
 ])ro()f that he was examined, (i) 
 .\m aiTul.ivlt of It perjury is a.ssigned upon an affidavit made by a marksman, 
 :i iinrksni.an Q\\^\^(.y the jurat nnist state that the affidavit was read over to the 
 ImU^s'it 'u" ° defendant, or it must be proved tliat it was so read. Upon an in- 
 siio.vn to have dictmcut for perjury in an affidavit, which was signed witli the 
 Loon rea.l over j^^.j^,.], ^j- ^j,g Jefcudluit, but the jurat to which omitted to state 
 lmm'nt1''"wui that it was read over to the defendant; Littledale, J., said, 'as 
 it ma.ic'i.y a the defendant is illiterate, it must be shown that she understood 
 i-urty who can ^j^^ affidavit. In thosc cases where the affidavit is made by a per- 
 ''"**■ son who can write, the supposition is that such person wa.? ac- 
 
 (piainted with its contents, but in the case of a marksman it is not 
 so. If in such case the master by the jurat authenticates the 
 fact of its having been read over, we give him credit ; but if he 
 does not, and the fact were so, he ought to be called to prove it. I 
 should have difficulty in allowing the evidence of any other per.son 
 to that fact.' And no evidence being adduced to show that the 
 affidavit was read over in the presence of the defendant, it was 
 hold that the assignments of perjury on this affidavit could not be 
 supported. {]) 
 An affi.Livit It was held in the same case, that where one affidavit, which has 
 
 referring to an a perfect jurat, refers to another affidavit which is inadmissible 
 atiia."vit' *^ f'"^^ ^^'^i^t of proof that it was read over to the defendant, the former 
 
 affidavit cannot be read, {k) 
 Where the a.s- Where an indictment for perjury, alleged to have been com- 
 signnient-s of mittcd in tlic Insolvent Debtors Court, stated that the defendant 
 th.^i"ccruiii°° S''^^^ ^" ^^^^ schedule on oath that the same and all its contents 
 persons by were true, and contained a full, true, and perfect account of all his 
 name were just debts, credits, &c., and then went on to state that the said 
 debtors, schedule and its contents were not true, and that certain persons 
 
 evidence ot i i i i r i j.i 
 
 others ixiing so whose uamcs wcrc set out were debtors to the deiendant at the 
 is inacUuis- inwQ, of giving in his schedule ; Lord Tenterden, C. J., held that 
 '''*''*^" the evidence must be confined to the cases specified in the indict- 
 
 (<j) Reg. r. Cliristian, MSS. C. S. G. Bench. See this case as to anotlicr point, 
 
 ami C. & il. 3SS, Loixl Denmnn, C. J. ante, p. 89. 
 
 (h) Kexr. James, Show. 397. 3 Stark. (>) Rex v. Hailey, R. k M. X. P. C. 
 
 Evid. %:u. And see Brickell v. Hulse, 94. 1 C. & P. 258. 
 
 7 A. & E, 454. {k) Rex v. Hailey, 1 C. & P. 258. The 
 
 (i) Kox r. Browne, M. & M. 315. report does not state in what manner the 
 
 Lonl Tenterden, C. J., after consulting one affidavit referred to the other. 
 the other judges of the Court of Kings
 
 CHAP. 
 
 I-] 
 
 Eiiil 
 
 ence. 
 
 93 
 
 ment, as the defeudant could only come prepared to answer those 
 cases, and that evidence that other persons, whose names were not 
 set out in the indictment, were also debtors to the defendant and 
 were omitted in the schedule, was inadmissible. (Z) 
 
 An indictment for perjury alleged that the defendant made an 
 affidavit, which stated that the creditors of the defendant were all, 
 with two exceptions (which were explained) paid in full ; whereas 
 the said creditors were not all, with two exceptions only, paid in 
 full ; and whereas divers creditors of the defendant exceeding the 
 number of two, naming several creditors, were not paid in full : 
 and evidence being tendered of debts to other persons than those 
 named being unpaid ; it was objected that the first assignment 
 was bad as too general, and that evidence as to debts due to others 
 than those named ought not to be admitted. Tindal, C. J., 'You 
 might have demurred to this assignment only, if it be too general, 
 and as you have not done so, I do not see how I can exclude the 
 evidence.' But 'I think that omitting the names in one assign- 
 ment of perjury and inserting them in the next is likely to mislead 
 the defendant ; as he would be very likely to suppose that the 
 debts, mentioned in general terms in one assignment, were those 
 particularised in the other ; ' whereon the evidence was not 
 pressed, {m) 
 
 Where an indictment for perjury alleged that Hallett ex- 
 hibited a bill in chancery, by which he set forth that he, Bowden, 
 and Tucker (the defendant), entei'ed into a verbal agreement to be- 
 come joint dealers and co-partners in the trade or business of 
 druggists ; and assigned perjury against the defendant in swearing 
 that he, Hallett, and Bowden did not become joint dealers in the 
 trade or business of druggists ; and it appeared that Hallett was a 
 druggist, but the defendant and Bowden were drug brokers, and 
 had nothing to do with Hallett's shop, or the drugs sold there, 
 but were continually in the drug market ; but being brokers of the 
 city of London they could not deal in their own names, and it was 
 agreed that they should buy and sell drugs in Hallett's name, and 
 then they were to divide the profit and loss. Abbott, C. J., held 
 that the allegation in the bill in chancery could only appl}^ to 
 an ordinary partnership, and not to such a transaction as 
 this, and consequently, that the indictment could not be sup- 
 ported, {ii) 
 
 Where an indictment for perjury alleged that a bill was pending 
 in the Court of Chancery, and that it became material to ascertain 
 whether an annuity granted by G. Hawkins to the defendant, or 
 granted to J. B. Bostock, as trustee for the defendant, had been 
 paid up to the year 1S2(S, and that the defendant falsely swore that 
 the annuity had not been paid up to 1828 ; and in order to show 
 that Bostock, who was abroad, had paid the money to the defend- 
 ant, it was proved that Bostock had sent money to his banker's 
 by his clerk ; it was held that what the clerk said about the 
 money at the time he paid it into the banker's was admi.ssible in 
 
 Where tbere is 
 a general as- 
 signment and 
 also an assign- 
 ment mention- 
 ing particular 
 names. 
 
 Averment of 
 a partnership 
 not supportei 
 liy the facts. 
 
 Declaration by 
 an agent at 
 the time of 
 paying money 
 into a l),iiik. 
 
 (/) Rex V. Miidie, 1 M. & Rob. 128. 
 S. C. as Rex r. Moody, 5 C. & T. 23. 
 The indictment is set out in the note to 
 
 the latter report. 
 
 {m) Ref(. V. Parker, C. & M. 639. 
 (») Rex V. Tucker, 2 C. & P. 600.
 
 94 Of Perjuiij. [book v. 
 
 cvitlonco, on the ^(round that it was a declaration made by an agent 
 actiii>( at the time within the scope of his authority, (o) 
 Purol oviilcnrq Upon uu indictnuint for perjury alleged to have been committed 
 toii-Mtoii upon tiie hearing of an information hn- sporting without a game 
 doiKmiiiou. i-ci t ificat c, in order to jmovo \vh;it the (hjfendant swore before the 
 ma<Mstrate, his deposition taken in writing liefore the magistrate 
 was put in, and it was held tiiat evidence was not admissible of 
 other things stated by the defendant, when he was examined as a 
 witness before the magistrate, butwhicli were not contained in the 
 written deposition. (^>) 
 Insiiftioicnt An indictment alleged that the prisoner was a member of a 
 
 cxiiiniimiion l)onefit society, the rules of which were duly certified, and a tran- 
 bcnctirswicty. •'^crij)t of thcUi filed with the clerk of the peace, and that by a rule 
 Prefatory of the Society it was provided that if any free mcmljcr should have 
 
 avcniiont.s j,}^ property destroyed by fire, he should produce a certificate, and 
 
 suVpluL-c ^' ^''*^ property was not insured the society would indemnify him 
 to ;i eertain amount if the claim were authenticated by a solemn 
 deelaration before a magistrate., and then charged the prisoner with 
 making a fal.se declaration before a magistrate contrary to the 
 ') i'v: U Will. 4, c. 02, s. 18, that he had sustained a loss by fire. In 
 order to prove the rules of the society a copy of the rules was 
 produced, and the 24th rule, which was applicable to the allega- 
 tions in the indictment, was proved to have been examined with 
 the transcript at the clerk of the peace's office ; but no other rule 
 had been so examined; and Erskine, J., held that all the rules 
 ougiit to have been compared. To prove the rules, either the 
 original transcript should have been produced, or an examined 
 copy of the whole of it. It was then objected that the indictment 
 was not proved. But Erskine, J., held that all the statements in 
 the indictment with reference to the society might be rejected as 
 surplusage, if there was enough on the face of the indictment to 
 show that an offence was committed without any reference to the 
 society or its rules, which appeared to be the case. The making 
 of the declaration was then proved, and it referred to the cer- 
 tificate, which was put in ; and Erskine, J., allowed the persons 
 whose names pui-ported to be signed to it, to prove that their 
 names were forgeries, as it might go to show that the declaration 
 was Avilfully false, {q) 
 
 (o) Res. V. Hull, 8 C. & F. 358, Lit- in felony and in summary convictions 
 
 tledalc, J. was not noticed in this case, nor was any 
 
 ^ }>) Hex V. Wylde, 6 C. & P. 380, reference made to Eex r. Ilanis, R. & 
 
 Park, J. A. J. The correctness of this M. C. C. R. 338. And the decision in 
 
 decision seems questionable. In the case the text appears at variance with the or- 
 
 ofsummary convictions there is no statute dinarj' practice of cross-examining a 
 
 which re(iuires magistrates to take down witness in cases of felony as to other 
 
 the evidence in writing, and therefore statements made by him liefore the com- 
 
 what a party says in an examination be- mitting magistrate, after his deposition 
 
 fore a magistrate on such an occasion has been put in and read. C. S. G. 
 
 may be proved by parol, whether any (q) Reg. v. Boynes, 1 C. & K. 65. The 
 
 person took it down or not. Robinson r. declaration mentioned the name of the 
 
 Vaughton, 8 C. & P. 252, Alderson, B. society, and that the prisoner had ' for- 
 
 Ina.'^much, therefore, as all the defendant warded to the said society a certificate as 
 
 s;iid might have been proved by parol, it renuired by the 24th rule of the said 
 
 is diflicult to see how the deposition being society.' Quccre whether this was not 
 
 jmt in could prevent other matters not suilicient evidence against the prisoner 
 
 contained in it from being proved by when connected with the 24th rule, 
 
 parol. Theilistinction between depositions proved to have been examined with the
 
 CHAP. I.] 
 
 Evidence. 
 
 The prisoner was indicted for falsely swearing that the signa- 
 ture to a paper was not his signature. On a trial in a county 
 court the paper was produced, and the prisoner swore that he 
 never signed it: the judge directed him to write his name on a 
 piece of paper ; which he did, and the judge compared it with the 
 signature to the disputed document. Wightman, J., inclined to 
 think that the jury might look at and compare the two signatures. 
 The signing of the name by the prisoner during his examination 
 on oath formed in fact part of the transaction out of Avliich the 
 charge arose ; and the counsel for the prisoner not objecting, the 
 paper was handed to the jury, (r) 
 
 An indictment alleged that the prisoner falsely swore in a 
 county court that the words J. S. were written by J. S. at the 
 house of M. P. in the parish of St. Mellon's, in the county of G. 
 The proof by the judge's notes was that the prisoner swore as 
 alleged, except that he did not describe M. P.'s house as in the 
 parish of St. Mellon's ; but Eolfe, B., held that the allegation 
 might well be made out by showing that M. P.'s house was in that 
 parish, (s) 
 
 Upon an indictment against Moreau for perjury alleged to have 
 been committed in an affidavit in a cause wherein Moreau was 
 plaintiff, and Encontre defendant, by deposing that Encontre 
 owed him 50^., evidence is not admissible that the cause and all 
 matters in dispute were, after the making of the affidavit, referred 
 by consent, and an award made that Encontre owed nothing to 
 Moreau ; because the decision of the arbitrator in respect of that 
 fact is no more than a declaration of his opinion, and there is no 
 instance of such a declaration of opinion being received as evidence 
 of a fact against a party to be affected by proof of it in any 
 criminal case, (t) 
 
 Where perjury is assigned upon the evidence of a witness ex- 
 amined before magistrates on the hearing of an information, the 
 conviction is not admissible in evidence on the trial of the indict- 
 ment for perjury, as it is irrelevant to the matter in issue. («) 
 
 Where a count alleged perjury to have been committed before 
 magistrates in examining a charge of feloniously receiving stolen 
 silks, knowing them to have been stolen, and it appeared that the 
 evidence wtis given upon the hearing of an information, under the 
 17 Geo. 8, c. 56, for having possession of silks suspected to have 
 been purloined or embezzled ; Pattcson, J., held that the count 
 was not supported, as the evidence was given upon the specific 
 charge contained in the information, (i') 
 
 The jury may infer the corrupt motive of the defendant from 
 the circumstances of the case, {iv) and in order to show that the 
 defendant swore wilfully and corruptly what was not true, evidence 
 
 95 
 
 A signature of 
 the prisoner 
 during the 
 examination 
 in which the 
 perjury was 
 alleged to be 
 committed. 
 
 Description of 
 a house. 
 
 The award of 
 an arlutrator 
 is not admis- 
 sible on an 
 indictment for 
 perjury in an 
 affidavit made 
 before the 
 cause was re- 
 ferred to him. 
 
 Conviction 
 before justices, 
 when not 
 admissible. 
 
 Count for 
 perjury on a 
 charge of re- 
 ceiving stolen 
 goods not 
 supported by 
 proof of 
 I)erjui-y on 
 hearing an 
 information 
 under the 
 17 (tco. 3, 
 c. 5t). 
 
 Evidence of 
 
 transcript, of the allegations in the in- 
 dictment ? See Reg. v. Westley, ante, p. 
 87. 
 
 (r) Reg. V. Taylor, 6 Cox, C. C. 58. 
 As to comparison of liandwritiiig by 
 court and jury sec 2Jost, Evidence. 
 
 (s) Reg. V. Withers, 4 Cox, C. C. 17. 
 
 {t) Reg. V. Moreau, 11 Q. H. 1028. 
 The real objection in this case was that 
 the finding of the arbitrator was not ne- 
 cessarily inconsistent with the fact of biU. 
 
 being due ; as it might proceed on the 
 absence or loss of the only evidence that 
 ever existed of the debt, and it rather 
 seems tliat the prisoner was not examined 
 on the reference. 
 
 («) Reg. V. Goodfellow, JISS. C. S. G. 
 and C. & M. 569. See Rex v. Dowlin, 
 5 T. K. 311. 
 
 (v) Keg. r. Goodfellow, supra. 
 
 {ir) Hex V. Knill, 5 B. & Aid. 920, 
 ante, p. 76.
 
 1)6 
 
 tlio rorrii)'t 
 iiiU'iit of till 
 flvfomlikiil. 
 
 RweariiiK n.i to 
 tlio preHcnco of 
 a |K'ntiiii on 
 ovory Siiiiilny 
 witliiii II 
 certain time. 
 
 Of Perjury. 
 
 [book v. 
 
 may ^»o trivcn of cxiircssions of in.alicc used l)y tlio dofcndaiit io- 
 wiinls the j)cr.s()n a;;aiiist whom ho f,'avo tho falso cvidoiico. {x) The 
 oviih-nct' aiincars to havo Loon rocoivcd in this case without 
 
 ohjiction. 
 
 The prisoner was indictrd (or ptijury on the hearing of an in- 
 forniatiun a<,'ainsL Jihickhurn for trespassing in pursuit of game ; 
 the occupier of the land and two of his men swore that they saw 
 J{|ackl)urii on the land on a particular Sunday morning. The 
 ])risoner was called by Blackburn as a witness, and swore that 
 lUackburn lodged with him, and that he never was ab.sent from 
 his lodgings on any Sunday morning during the whole time that 
 they lodged together, which included the Sunday on which the 
 alleged offence was committed. Pollock, C. B., was of opinion 
 that tho attention of the ])risoncr ought to have been called to the 
 ])articular ilay on which the transaction took place as to which he 
 was asked to speak ; and that a general allegation, such as had 
 been made in this case, including all Sundays between two fixed 
 dates, was not suflficiently precise upon which to found an indict- 
 ment for perjury, and directed an acquittal, (y) 
 
 xVn indictment for perjury charged that prisoner swore on a 
 jilaiut in the County Court for the price of coals obtained on credit 
 at different times, in which it was a material question whether or 
 not the prisoner had received any coals on credit from P., either 
 on account of himself or A., ' that he had never received any coals 
 on credit from P., either on account of himself or A.' Held, that 
 the allegation in the indictment was not too general, although no 
 specific instance was averred in which the prisoner had received 
 coals on credit from P. At the trial the prisoner was asked three 
 or four times by the advocate and judge whether he did at any 
 time, either on his own account or that of A., have any coals on 
 credit from P., to which the prisoner always answered, ' I did not.' 
 Held, that the prisoner's attention was sufficiently called to the 
 subject so as to found a charge of perjury upon the answer, al- 
 though no distinct transactions on credit were suggested to him 
 during his examination, (s) 
 
 {x) Kex f. Jluntou, 3 C. & T. 498, 
 I.or.l Tenteiil.-n, C. J. 3 Stark. Evid. 
 S(;o. eitiiii,' 1 Hawk. c. 69, s. 2. Eex r. 
 M.'lliiig, h Mod. 349. Keg. v. Muscott, 
 10 Mod. 192. 
 
 ()/) Keg. r. Stolady, 1 F. & F. 518. 
 This case is very unsatisfactorily re- 
 ported ; no date is given, or anything 
 more than is above stated. As the proof 
 of the offence was on ' « particular Sun- 
 day morning,' the prisoner, if present, 
 )nmt have had his attention drawn to 
 that particular date ; and, if absent, still 
 the date would have been known to 
 IJlackbnrn from the summons, and, as he 
 called tlie jirisoncr as his witness, he no 
 doubt had communicated the day to him, 
 so thatthegroundof the decision reallydid 
 not exist. Rut supposing the decision to 
 be as rejwrted, it is very confidently sub- 
 mitted that it is erroneous. Suppose a 
 Juan called to prove an alibi sweare that 
 he and the prisoner were in Paris during 
 all the month in which the offence was 
 
 committed, can it be the law that he is 
 not guilty of perjury because he is not 
 asked as to the particular day ? If a 
 man swears that he was not absent from 
 church on any Sunday in January, is not 
 that as precise a swearing as to each and 
 every Sunday as if he were asked as to 
 each in succession ? An information, 
 which charges the defendant with killing 
 ten deer between the 1st of July and the 
 10th of September, without showing the 
 particular days on which tliey were 
 killed, is good. Rex r. Chandler, 1 Ld. 
 Kayni. 581. 1 Salk. 378. And where, on 
 a similar information, the evidence was 
 that the defendant did, within such a 
 time and such a time, steal a deer, so 
 that the time was left as uncertain in the 
 evidence as in the information, it was 
 held sufficient. IJeg. v. Simiisou, 10 
 Mod. K. 248. C. S. G. 
 
 {:) K. V. London, 12 Cox, C. C. 50, 
 per BoviU, C. J., 'We are all of opinion 
 that this conviction was good. The first
 
 CHAP. I.] Defence. 97 
 
 The defendant, although perjury be assigned on his answer, Defence, 
 affidavit, or deposition in writing, may prove that an explanation 
 was afterwards given qualifying or limiting the first answer, (a) 
 
 Thus where the perjury was assigned upon an answer in General ex- 
 chancery, in which the defendant had sworn that she had re- pressions m an 
 ceived no money ; the defendant proved that, upon exceptions plained by 
 taken to this answer for the insufficiency thereof, she had put another 
 in another answer, which explained the generality of the first ''^'^swer. 
 answer, and stated that she had received no money before such a 
 day ; and it was held, upon a trial at bar, that nothing could be 
 assigned as perjury which was explained by the second answer, 
 because the second answer clearly showed that that which at first 
 appeared to be perjury was not perjur}^ {h) 
 
 Where an indictment for perjury contains several assignments Evidence for 
 of perjury, and no evidence is adduced upon one of the assign- ^^'^ defendant, 
 ments, the defendant is not entitled to give any evidence to show 
 that the matter, charged by such assignment to be false, was in 
 fact true, (c) 
 
 The crime of perjury is complete at the time when an affidavit I* is no de- 
 is sworn; it is no defence, therefore, that the affidavit cannot, „"^u„;^\ill^ 
 1 • • • • 1 • 1 • 1 • 1 /-( f amdavit is in- 
 
 through certain omissions m the jurat, be received in the Court tor admissible by 
 
 which it is sworn. Upon an indictment for perjury, in an affidavit reason of a 
 relating to the service of a petition upon a bankrupt, it appeared ^^ ^'^ i^ejura . 
 that the affidavit was signed with the mark of the defendant, and 
 the jurat did not state either where it was sworn, or that the affi- 
 davit was read over to the party, and it was proved by a clerk 
 in the Master's office in Southampton Buildings that in cases 
 where the party swearing the affithivit cannot write, the jurat 
 ought, after stating the pUice where it was sworn, to state that the 
 witness to the mark of the deponent had been first dul}^ sworn, 
 that he had truly, distinctly, and audibly read over the affidavit to 
 the deponent, and saw the mark affixed ; and that no affidavit would 
 be received which did not contain this form of jurat when the 
 party could not write. Littledalc, J., ' The omission of the form 
 directed by this and other Courts to be used in the jurat of affida- 
 vits may be an objection to their being received in the Court, 
 whose rules and regulations the party has neglected to comply 
 with ; but I am of opinion that the perjury is complete at the 
 time the affidavit is sworn, and although it cannot be used in tlie 
 Court for which it is prepared, that nevertheless perjury may be 
 assigned upon it.' {d) So where an affidavit when sworn had been 
 
 question is upon the form of the indict- r. Stohidy, Avhich are in accordance with 
 mcnt, that is sufhcient in our opinion. the judgment of the Lord Chief Jus- 
 Thc second point is whether the attention tice. 
 of tlie prisoner was sufhciently called to {a) 3 Stark. Evid. 860. 
 the transaction he was heinj^ questioned (i**) Kex r. Carr, 1 Sid. 418. 2 luld. 
 about, and wc are all of opinion it was 57t). 3 Stark. Evid. 800. Tlic reporter 
 amply called to it, even if the .second adds, ' at which unexpected evidence and 
 ])oint had been reserved for ns ; ' ct jirr resolution the counsel for the prosecution 
 \Villes, J., ' AVo do not intend to over- were surprised.' 
 rule what Pollock, C. P>., said, " that tlio (c) Hex v. Hemp, .'') C. & P. 168. 
 attention of a witness oiifrht to be called (d) Kex v. Hailey, 1{. & M. N. P. C. 
 to the point upon which his answer is 9i. 1 C. & P. -.')!>. See Kex v. Cross- 
 supposed to be erroneous, before a charf^o ley, ante, p. 41, and Kej^. v. I'hillpotts, 
 for perjury can be founded upon it. " ' Mr. ante, p. 15, that it is iierjury as soon as 
 Greaves in his last edition of ' Eussell on the evidence is given, whatever may after- 
 Crimes,' makes some observations ou P>. wards occur. 
 
 VOL. III. H
 
 98 
 
 Of Per jury. 
 
 [book v. 
 
 3o it i.H no 
 ilofonco thiit 
 Iho nfTiiliivit 
 lift.s not In'on 
 used fur the 
 jmrjioso for 
 wliioli it was 
 nmdc. 
 
 Or that it lias 
 a tlefcctivo 
 title. 
 
 markod by tlio ju(l;,'o's clerk with liis initials, but throuffh mistake 
 iK.t thou jirc'seiituil to the judge for his signature, but some days 
 uftcrwiirds it was signed by the judge ; Alderson, B., in the pre- 
 sence of the olhcr liarons of the Exchequer, expressed a clear 
 opinion that perjury might be assigned upon the affidavit, although 
 the iudi;t''s signatun! was omitted, (e) 
 
 lIpoM MM indictment for perjury, it appeared that the defendant 
 had filetl a bill in chancery for an injunction, and had made the 
 artithivit, on Avhich the perjury was assigned, in support of the 
 allt'o-ations in that bill. The indictment averred the bill to have 
 bei'u filed, and the affidavit exhibited in support of it ; and it stated 
 the matters assigned as perjury to be material to the questions 
 ;irisin«T on the bill ; but it did not contain any statement that a 
 motion had been made for an injunction, and it did not appear by 
 the evidence that any such motion had in fact been made. It was 
 submitted that the defendant was entitled to an acquittal. By the 
 practice of the Court of Chancery, an injunction could not be 
 obtained, except for want of an answer, or on the insufficiency of 
 the answer, or on evidence disproving the answer, in none of which 
 cases is the affidavit of the plaintiff admissible ; or else ex parte 
 before the time allowed to the defendant for answering has 
 elapsed. In the last case, and in that only, could the plaintiffs 
 affidavit be used. The averment, therefore, that the perjury was 
 assign ed on the matter material to the bill was not true ; it could 
 only be material to an application of a peculiar nature, and it did 
 not appear, and was not alleged, that such an application was ever 
 made. It was answered that the objection, if tenable at all, 
 amounted to this, that perjury could not be assigned upon an 
 affidavit which had not been used. Lord Tenterden, C. J., ' I do 
 not think the averment or proof, the absence of which is objected 
 to, can be necessary. The statements in the affidavit are material 
 to the matters contained in the bill, which is for an injunction ; 
 and it may well have been filed in anticipation of a conteraj^lated 
 motion for an injunction, on which it might have been used. Can 
 it make any difference that it afterwards turns out that the motion 
 is not made ? The crime, if any, is the same, morally, in each 
 case ; and I certainly shall not, where the objection is open here- 
 after, hold it necessary to give proof of a fact which does not vary 
 the conduct of the party in taking the oath in question.' (/) And 
 it has been since held that an affidavit sworn for the purpose of 
 beino- used in a cause, but which is neither used nor filed, is never- 
 theless the subject of perjury, (g) 
 
 Where an indictment for perjury alleged that the defendant 
 produced before a Master in Chancery an affidavit, ' entitled, in 
 the said Court of Chancery, and in the said suit therein at the suit 
 of the said E. J. C, and also in the said suit therein at the suit of 
 the said Cummissioncrs of Charitable Donations and Bequests in 
 Ireland,' and the affidavit, when produced, appeared to be entitled 
 'between the Commissioner of Charitable Donations and Bequests 
 in Ireland, against J. E. D., &c. (naming the other defendants), 
 and between E. J. C. and J. E. D., the Commissioners of Chari- 
 
 (e) Bill r. Bament, 8 M. &W. 317. 
 (/) Rex r. AMiite, M. & M. 271. The 
 defendant was aciiuittcd. 
 
 (q) Hammond v. Chitty, Q. B., E. T. 
 1846, MSS. C. S. G.
 
 CHAP. I.] 
 
 Verdict. 
 
 99 
 
 table Donations and Bequests in Ireland, and others! It was 
 objected that this affidavit was not one on which perjury could be 
 assigned, as there was no such suit as that in which the Commis- 
 sioner of Charitable Bequests were plaintiffs ; and the affidavit 
 was improperly entitled, as the names of all the defendants were 
 not stated, and therefore the affidavit was not admissible in 
 the Court of Chancery. Lord Deuman, C. J., 'The courts are 
 quite right in not receiving affidavits which are not properly en- 
 titled ; but I do not think the question whether there be perjury 
 or not depends on the rule as to entitling being strictly complied 
 with.' {h) 
 
 Where perjury was charged to have been committed in an affi- 
 davit of service of notice of an application for leave to issue 
 execution against a shareholder in a joint stock company, and the 
 affidavit was produced, but the notice was not annexed to it ; 
 Cockburn, C. J., held that the affidavit was inadmissible, (i) 
 
 On an indictment for perjury alleged to have been committed 
 on the trial of A. Poole, for an indecent assault, it appeared that 
 the prisoner had sworn that Poole had assaulted her at a certain 
 time and place, but on cross-examination she had admitted that 
 certain liberties had been taken without resistance ; whereon the 
 judge directed an acquittal. Poole and others were called to prove 
 that no such assault could have been committed at the time 
 alleged ; and it was held that the prisoner was entitled to prove 
 what her conduct was immediately after the alleged assault ; that 
 she had made immediate complaint; and that all the evidence 
 which was admissible on the trial of the assault was admissible for 
 the purpose of showing that the prisoner was not guilt}'-. (J) 
 
 If any one distinct assignment of perjury be proved, the de- 
 fendant ought to be convicted, ih) 
 
 In a case of a prosecution against T. Reilly for suborning one 
 Macdaniel to commit perjury, it was contended on the part of the 
 crown that the bare production of the record of Macdaniel's con- 
 viction was of itself sufficient evidence that he had, in fact, taken 
 the false oath as alleged in the indictment. But it was insisted, 
 for the prisoner, that the record was not of itself sufficient evidence 
 of the fact ; that the jury had a right to be satisfied that such 
 conviction was right ; that Reilly had a right to controvert the 
 guilt of Macdaniel ; and that the evidence given on Macdaniel's 
 trial ought to be submitted to the consideration of the present 
 jury ; and the Recorder obliged the counsel for the crown to go 
 through the whole case in the same manner as if the jury had been 
 charged to try Macdaniel. (I) 
 
 Affidavit 
 without notice 
 annexed to it. 
 
 VTliere perjury 
 alleged to have 
 been com- 
 mitted on 
 trial for an 
 iudecent 
 assault. 
 
 Verdict. 
 
 Proof upon a 
 prosecution 
 for suborna- 
 tion of perjury. 
 
 (7i) Reg. V. Christian, C. & I\r. 388. 
 li) Reff. V. Hudson, 1 F. & F. 56. 
 
 - V. Harrison, 9 Cox, C. C. 503. 
 
 V. Rhodes, 2 Lord Rayni. 
 
 3 Stark. Evid. 860. And sec 
 
 Martin, 2 Black. Hep. 
 
 Virricr, 12 Ad. & E. 317. 
 
 (./) licg 
 
 {k) Reg, 
 886, 887. 
 Compagnon 1 
 790. Reg. V. 
 
 Reg. r. Gardiner, ante, p. .'')2. In Rcx 
 V. Nicliolls, Clouccstev Sum. Ass. 1838, 
 perjury was alleged to have been com- 
 mitted by the defendant in evidence given 
 on a trial for larceny, in -whicli ho denied 
 having been at a particular house on a 
 
 paiticular occasion, and denied Iiaving 
 had a conversation with certain persons 
 there, and the indictment contained many 
 distinct assignments on the going to the 
 house, and the conversation, upon all of 
 ■which evidence was given ; and Patte- 
 son, J., directed the jury simply to con- 
 sider whether the deCeiulant had been to 
 llie house, and if tliey were satisfied that 
 he had, to convict him, which they did. 
 MSS. C. S. G. 
 
 [l) Iteilly's case, 1 Leach, 454. Sec 
 vol. 1, p. 183. 
 
 u2
 
 100 
 
 Wlicro nn 
 
 illilirtniL-lit 
 coiiUiinud fi'iir 
 rouiitu, uii'l 
 the vriiiro ftnil 
 vorilit't (tpoko 
 of 'tlip jxTJiir)- 
 mill iiiIhiIu- 
 nxMUior ufiiro- 
 i«ni<l,' nixl 
 tliero wiw ft 
 jiiilnmcnt for a 
 niuji\o term of 
 iin)>riHoniiicnt, 
 it wa.s hclil 
 right. 
 
 Of Perjunj. 
 
 [book V- 
 
 One judgment 
 on several 
 counts. 
 
 Punishment of 
 perjury and 
 subornation of 
 perjury. 
 
 Tho first count a.ssij,mccl perjury on an affiilavit of the defendant, 
 wliicli allowed tliat tlie defendant did not retain or employ W. U. 
 t(t art as atloriwy for liini and J. I., or for either of tliem, in and 
 ahout the business mentioned in tlie said W. U.'s l>ill of costs ; 
 and that he, the (h'fcmhant, never retained or employed the said 
 W. U. to act as attorney or agent for him in any cause or manner 
 whatever. The second count assigned perjury on the statement 
 in the atlidavit as follows: — 'that he the said defendant did not 
 retain or employ (meaning that he the defendant did not alone, or 
 jointly with the said J. I., retain or employ) W. U. to act as 
 attorney for him and J. I.' The third count was the same as the 
 first, iind the fourth as tho second. Tlic plea was, that the de- 
 fendant was not guilty of the premises in the indictment specified. 
 The venire w-as ' to recognize whether the defendant be guilty of 
 the perjury and misdemeanor aforesaid, or not guilty.' The 
 verdict was that the defendant ' is guilty of the perjury and 
 misdemeanor aforesaid,' and the judgment that the defendant 
 ' be imprisoned and kept to hard labour for ten calendar months.' 
 It was urged that the venire, the verdict and judgment, were 
 uncertain for not showing to which of the counts they refeiTcd. 
 That they were in the singular number, speaking of 'the perjury 
 and misdemeanor aforesaid,' and that this could only mean one 
 perjury and misdemeanor ; and that as four w^ere alleged in the 
 indictment, it was uncertain which of them the jury was sum- 
 moned to try, and of which of them the defendant was found 
 guilty ; but the Courts of Queen's Bench and Exchequer Chamber 
 held that ' misdemeanor ' was noinen collect iium, and meant ' the 
 misconduct aforesaid.' The consequence %vas that the venire 
 applied to all the counts of the indictment, and that the defendant 
 had been found guilty by the verdict on all the counts, (m) 
 
 AVhere on an indictment for perjury containing several counts 
 the judgment was that the prisoner for the offence charged upon 
 him in and by each and every count be imprisoned for the space 
 of eight calendar months now next ensuing ; it was held by the 
 Court of Exchequer Chamber that the judgment w^as good, on the 
 gi'ound that it meant that the prisoner was to be imprisoned for 
 the same period of eight months for each offence. (/?) 
 
 The punishment of perjury and subornation of perjury, at 
 common law, has been various, being anciently death ; afterwards 
 banishment, or cutting out the tongue ; then forfeiture of goods, (o) 
 At the present time it is fine and imprisonment, at the discretion 
 of the court, (p) to which, as we have already seen, the 2 Geo. 2, 
 
 (»i) Kyalls V. Tlie Queen, 11 Q. B. 781. 
 Rex r. rowcll, 2 B. & Ad. 75, wasrecofj- 
 nizcd as good law by both courts. 
 
 («) King V. Kog."l4 Q. B. 31. 
 
 (o) 4 Black. Com. 13S. 
 
 (;;) 4 Black. Com. 138. Bex v. Xucys 
 and Oaley, 1 Black. K. 416. Kex r. 
 Lookup, 3 Burr. 1901. In this last case 
 the form of the sentence was that the 
 defendant 'should bo set in and upon 
 the pillory at C. cross, for an hour be- 
 tween the hours of twelve and two, and 
 that he should afterwards be transported 
 to some of bis Majesty's colonies or plan- 
 
 tations in America, for the space of seven 
 years : and be now remanded to the 
 custody of the marshal, to be by him kept 
 in safe custody, in execution of the 
 judgment aforesiud, and until he shall be 
 transported as aforesaid.' The 1 Vict, 
 c. 23, abolishes the pimishment of the 
 pillory in all cases, ' provided that 
 nothing herein contained shall extend, or 
 be construed to extend, in any manner to 
 change, alter, or affect any punishment 
 whatsoever, which may now be by law 
 intlicted in res{iect of any offence except 
 only the piinishment of pillorj*.'
 
 CHAP. 
 
 !•] 
 
 Judgment. 
 
 101 
 
 c. 25, {q) superadds a power for the Court to order the offender to 
 be sent to the house of correction for a term not exceeding seven 
 years, or to be transported for the same period ; (r) and makes it 
 felony, without benefit of clergy, to return or escape within the 
 time. If the prosecution proceeds upon the 5 Eliz. c. 9, that 
 statute, as we have seen, {s) inflicts the penalty of perpetual 
 infamy, and a fine of 40^. on the suborner ; and, in default of 
 payment, imprisonment for six months, and to stand with both 
 ears nailed to the pillory ; (t) and punishes perjury itself with six 
 months imprisonment, perpetual infamy, and a fine of 20^., or to 
 have both ears nailed to the pillory. 
 
 The 3 Geo. 4, c. 114, enacts, that 'whenever any person shall 
 be convicted of any of the offences hereinafter specified and set 
 forth, that is to say {inter alia), of wilful and corrupt perjury, or 
 of subornation of perjury, it shall and may be lawful for the 
 Court before which any such offender shall be convicted, or which 
 by law is authorized to pass sentence upon any such offender, to 
 award and order (if such court shall think fit) sentence of impri- 
 sonment with hard labour, for any term not exceeding the term 
 for which such court may now imprison for such offences, either 
 in addition to or in lieu of any other punishment which ma}^ be 
 inflicted on any such offenders by any law in force before the 
 passing of this Act ; and every such offender shall thereupon 
 suffer such sentence, in such place, and for such time as aforesaid, 
 as such court shall think fit to direct.' See vol. 1, p. 78. 
 
 Upon a conviction for perjury at the Chester Assizes, after the 
 entry of the verdict the record proceeded, ' it is therefore ordered 
 that the said L. K. be transported to the coast of New South 
 Wales, or some one or other of the islands adjacent, for and 
 during the term of seven years ;' and upon a writ of error the 
 following errors were relied upon ; that the judgment was errone- 
 ous in form, being, ' it is ordered ;' whereas it should have been 
 * it is considered ; ' that it was bad in substance, being a judg- 
 ment of transportation only, whereas the 2 Geo. 2, c. 2.5, s. 2, 
 enacts that judgment of transportation maybe pronounced, besides 
 the punishment that might before be inflicted ; that the place, 
 to which the prisoner was to be transported, ought not to have 
 been fixed by the Court, the power of appointing that being given 
 to the King in council by the 56 Geo. 3, c. 27 ; and that at all 
 events the appointment of the place was bad, being to one or 
 other of various places, and, therefore, uncertain. And the Court 
 of King's Bench held that by the 2 Geo. 2, c. 25, s. 2, two things 
 were required to be done by the Court before wliich the party was 
 tried ; an order for transportation is to be made, and thereupon 
 judgment is to be given ; and here the Court had made an order 
 not followed up by a judgment. Inasmuch, therefore, as no 
 judgment had been entered in the Court below, and the Court of 
 King's Bench had no power to supply the deficiency, as the 
 punishment was discretionary, that Court awarded a procedendo, 
 
 3 Geo. 4, 
 
 c. 114. Hard 
 
 labour. 
 
 Judgment ia 
 case of per- 
 jury. 
 
 (q) Ante, p. 2;'5. 
 
 (r) Penal servitude for any term not 
 exceedini^ seven and not less than five 
 years, if the olfcuco was committed after 
 
 25 July, 1864, vol. 1, r. 73. 
 (.s) Ante, p. 23. 
 {t) See note {p), siqyra,
 
 0:2 
 
 Tho rourl limy 
 i'i'i|uiru tho 
 jiriHoiiiT l<> 
 liiiil MurclicM 
 fill- liiH ^;iniil 
 Ix-liavioiir 
 ufUT llio ex- 
 ]>iriilioii of IiIh 
 iinpriaonuioiit. 
 
 Coiivii-tion for 
 luTJury iiu-;i- 
 I'acitated the 
 (vtreiuler from 
 j^'ivinj,' cvi- 
 iloiicc. 
 
 Of Perjw'fi. 
 
 [book v. 
 
 An iuiliotmcnt 
 for perjurj' 
 will not lie 
 luiilcr tho 
 7 Geo. 4, 
 c. f)?, s. 71, 
 ngninst an 
 insolvent 
 delitor for 
 omissions of 
 l)ropcrty in 
 liis schedule. 
 
 Indictment for 
 a false answer 
 to tho third 
 question under 
 tlie Refonn 
 A.t. 
 
 couimaiKliiif; tlio ( 'omt Ixlow to proceed to give judgment on the 
 coiivictiDii. (.'■) 
 
 The Court may also adjudge the defendant to give surety to 
 keep the ])('acc( and be oi" good beliaviour for a reasonable time, to 
 1)0 computed from and after the expiration of the term of his 
 ImprisonmeMt, himself in asum named in sucli judgment, with tv/o 
 sidlieit'iit sureties, each in a sum therein also mentioned, and may 
 adjudge the di'fendant to be further imprisoned until such security 
 be given ; and such sentence docs not amount to perpetual impri- 
 sonment, as in default of sureties being given the defendant would 
 be entitled to be discharged at the expiration of the term during 
 which the sureties were required, {y) 
 
 A consequence of a conviction for perjury, though it formed no 
 ])art of tho judgment, was, that the offender Avas incapacitated 
 from giving evidence in a court of justice, {z) But a pardon 
 restored his competency ; except in the case of a conviction for 
 perjury or subornation of perjury on tlie o Eliz. c. 9, (a) which 
 provides that the offender shall never be admitted to give evidence 
 in courts of justice until the judgment be reversed; and, therefore, 
 the King's pardon would not in such case make him a competent 
 witness, (b) But by the 6 & 7 Vict, c, 80, s. 1, a person is com- 
 petent as a witness though he has been convicted of a crime or 
 offence, (c) 
 
 The following cases may be introduced in this place. 
 
 An indictment for perjury, alleged to have been committed in 
 the Insolvent Debtors Court, stated that the defendant gave in 
 his schedule on oath that the same contained a true and correct 
 account of all his debts, credits, &c., and then went on to state 
 that certain persons, whose names were set out, were debtors to 
 the defendant at the time of giving in his schedule, and that they 
 were omitted in the schedule. It was objected that no indictment 
 for perjury would He on such omissions ; that the offence of wil- 
 fully making such omissions was made punishable as a misde- 
 meanor by the 7 Geo. 4, c. 57, s. 70, and the offence of perjury 
 created by sec. 71 only applied to positive affirmations contained 
 in the schedule. Lord Tenterden, C. J., 'I think the legislature 
 contemplated the particular case of omissions, and provided for 
 them in the seventieth section, the debts omitted being compre- 
 hended under the terms " effects or property " there used. The Act 
 then goes on in the seventy-first section to make other falsehoods 
 in the oath of the party punishable as perjury. I therefore think 
 the defendant must be acquitted.' {iT) 
 
 Upon an indictment against the defendant under the 2 "Will. 4, 
 c. 45, s. 58, (e) for giving a false answer to the question whether he 
 had the same qualification to vote as that for which he was regis- 
 tered, it appeared that the defendant had occupied a house at the 
 
 (x) Rex V. Kcnworthv, 1 1^. & C. 711. 
 
 (y) Keg. V. Dunn, 12 Q. B. 1026, de- 
 cided ou the authority of Kex v. Hart, 
 30 How. St. Tr. 1131, 1104, and 1344, 
 where thejudges, in answer to a question 
 from the House of Lords, delivered their 
 unanimous opinion that in all cases of 
 misdemeanor tho Court might give sen- 
 tence in that fonii. 
 
 (;) GUb. Ev. 126. Bull N. P. 291. 
 
 4 Black. Com. 13S. 2 Hawk. P. C. c. 46, 
 s. 101. 
 
 («) Ante, p. 24. 
 
 (?>) 1 Phil, on Evid. 21, and the au- 
 thorities there cited. 
 
 (r) See this Act, post, Eiuknce. 
 
 (d) Rex V. JIudie, 1 M. & Rob. 128. 
 S. C. as Rex r. Moody, 5 C. & P. 23. 
 
 (f) This enactment is now repealed, 
 see 35 & 36 Vict. c. 33, sched.
 
 CHAP. I.] Answer wider Reform Act. 103 
 
 time of tlie registration, for which he was on the register as a 
 voter, but he had left it before the election, and the landlord's 
 agent had, before the election, given the key of the house to 
 another person, who had put horses into the stable and beer into 
 the cellar, but the rent of such person did not commence till after 
 the election ; it was held that the defendant must be acquitted, as 
 there was not evidence as to the determination of the defendant's 
 tenancy. (/) 
 
 Upon an indictment against the defendant under the 2 AVill. 4, Although a 
 c. 45, s. 58, {g) for falsely answering that he had the same qualifica- ^f^^^^^ u I'thlT^ 
 tion for which his name was originally inserted in the register of property he 
 voters, it appeared that the defendant at the time of the registra- rented at tlie 
 tion was occupyincr a house at Turnham Green, as tenant to Mr. t'^e te was 
 Kay, at the rent of 60^. per annum, but he left that house at cannot vote, 
 Lady Day following, and in April commenced the occupation of still he ought 
 another house at Turnham Green, as tenant to Mr. L., at a rent ^?*^*° ^^ ^°"' 
 of 50^. and upwards per annum, and he continued in the occupa- false answer 
 tion of this house from April till the time of the election. The to the question 
 defendant had been told that he had no right to vote before he did ^jJ^'^g'^^^jQ °l 
 so, but he said that he believed he had a right to vote, and that c. 45, if he 
 he had been so informed by a committee of tNvo of the candidates, Una fide 
 and that their opinion was sufficient to warrant him in voting. It Relieved he 
 
 1111 1 ni T n ■ ^ • ,1 T1 "'^"^l ^ right to 
 
 was held that the nature of the qualmcation being the same, did yote. 
 not give the party a right to vote, merely because it fell within 
 the general terms of the description which he had given to the 
 revising barrister. The identity of the qualification must con- 
 tinue ; and if a voter ceased to occupy the premises in respect of 
 which he was registered, he thereby ceased to have a right to 
 vote ; and it was no answer to say that, although he had ceased to 
 occupy those premises, he had entered upon the occupation of 
 other premises of equal value. It had been urged that if the 
 statement of the defendant was untrue, he made it under the ad- 
 vice of a committee ; but that made very little difference, for^ if a 
 party made a statement which he knew to be untrue, the opinion 
 of an election committee (which generally had a pretty strong bias 
 one way or the other) did not alter the character of the offence. 
 But still the term ' same qualification ' was undoubtedly an equi- 
 vocal expression, and almost necessarily implied something of 
 opinion as to a matter of law, and the jury ought not to convict a 
 person of a misdemeanor, who possessed property of equal value 
 to that which he held at the time of the registration, if he had 
 acted hondjlde, and had been guided in his conduct in a matter of 
 law by persons who were conversant with the law, and who had 
 told him that he possessed the same qualification for which his 
 name was originally inserted in the register of voters, {<jf/) 
 
 if) Eex V. Harris, 7 C. & V. 253, Lord fi'fc belief that ho still retained liis quali- 
 
 Denman, C, J, iication, he should be actiuitted. In the 
 
 ((/) Sec note (h), next paKC sanie note the learned reiiorlers advert to 
 
 {cjg) lies. V. Dodsworth, 8 C. & V. 218. the case where a voter is registered lor 
 
 2 Moo. & Kob. 72, Lor<l Denman, C. J. ' land,' dcserilied as in Ins own oecupa- 
 
 In Keg. V. Irving, 2 U. & Kob. 75, tion, or tor 'freehold houses, m sonic 
 
 note (rt), the same points arose, and .specified street, and after the registration 
 
 Bosan(iuct, .1., was decidedly of opinion he sells part of the land which was in Ins 
 
 that in ]wint of law the rinalificationwas own occupation at the time of the regi.s- 
 
 not the .same, but said that if the answer tration, or some ol the houses ol wliic i 
 
 was given by the prisoner under a bond he then possessed the freehold ; in cacU
 
 104 
 
 Mcanin)? of 
 llio 'mvino 
 juulilicatiou. 
 
 Of Per/ ur I/. 
 
 [book v. 
 
 Mode of 
 putting ques- 
 tions at an 
 election. 
 
 WUfully. 
 
 Indictment. 
 
 Tho 'fiamo <|U!ilincati"ti ' in tlio 2 & 3 Will. 4, c. 45, s. 58, (h) 
 means the .same ideiiticjil ijioporty. If therefore a party who is 
 r('«;isterecl fur a borough a.s a 10/. hou.seholder give.s up the house 
 in rcsju'ct of which he is registered, and takes another of superior 
 valiK' within llu; same borough after the egistration and before 
 (h(! election, he loses his vote, and if before an<l at the time of the 
 election a new tenant has taken po.sscssion of the house that the 
 voter has left, and is paying rent for it, the fact that a few articles 
 of the voter's furniture remain in the house, and that the voter 
 retains one of the two keys of it, will make no difference, (i) 
 
 So a voter in a borough who is registered as a 10^. hou.se- 
 holder in respect of a house in Eldon Place, loses his vote, if after 
 the registration and before the election he removes to another 
 house in Eldon Place, although tlie house to which he removes is 
 in every respect within the description contained in the register, 
 and both houses are of the same size and value, (j) If therefore 
 in such a case the party at an election states, in answer to the 
 (|uestion put to him, that he has the same qualification for which 
 his name was inserted in the register, he is indictable under the 
 2 & 3 Will. 4, c. 45, s. 58. (/.•) 
 
 In a register of a borough the word ' Penkhull,' which denoted 
 a portion of the borough, was put at the head of several names, 
 including that of the defendant, who was on the register in respect 
 of a house in Eldon Place, and it was held that if there was no 
 other Eldon Place in the borough, it was not necessary for the 
 deputy returning officer, in putting the third question under the 
 Reform Act, to add the word ' Penkhull ' as part of the de- 
 scription, (j) 
 
 On an indictment under the 2 & 3 Will. 4, c. 45, for giving a 
 false answer at the poll at an election of members of Parliament 
 for a borough, it is not necessary that the returning officer should 
 himself put the questions to the voters under sec. 58. But it is 
 sufficient if the town clerk do it in his presence and by his direc- 
 tion ; neither is it necessary to show that the agent who required 
 the questions to be put was expressly appointed by the candidate ; 
 it is sufficient to show that he has acted as agent for the can- 
 didate, (m) 
 
 The word ' wilfully ' in an indictment on the 2 & 3 Will. 4, 
 c. 45, s. 58, for giving a false answer at the poll, should be con- 
 strued in the same way, and supported by the same sort of evi- 
 dence, as in an indictment for perjury. To be untrue is not 
 enough ; for to be wilful it must have been false to the know- 
 ledge of the party at the time ; and if he really misconstrues the 
 facts, or misconstrues the law, he would not be guilty of the 
 otlonce. (??) 
 
 An indictment under the same sec. against a voter for giving a 
 false answer at the poll, which stated that at a certain election for 
 
 Cflso, however, rftaining enough in point 
 of vahie to confer a ijuulification, and in- 
 timate a doubt whether such a party 
 eoiild truly answer the question in tho 
 nflirnutive. C. S. G. 
 
 (h) This section is now repealed, see 
 35&3G Vict. 0.33. 
 
 (•) Reg. r. Bowler, C. & M. 559, Tat- 
 
 teson, J. 
 
 iJ) Reg. V. EUis, C. & il. 564, Patte- 
 son, J. 
 
 (A) Ibid. See supra, note {h). 
 
 {m) Reg. V. Spalding, C. & M. 568, 
 Pattcson, J. 
 
 (n) Keg. i; Ellis, supra. See supra, 
 note ih).
 
 CHAP. I.] 
 
 At Municipal Elections. 
 
 105 
 
 a member of Parliament for the borough of Stoke-upon-Trent, the 
 defendant appeared as a voter, and tendered his vote as such, and 
 that he gave a false answer that he had the same qualifica- 
 tion for which he was put on the register, whereas in truth he 
 had not, appears to be bad, because it states all the matters 
 by way of recital, and neither states the writ nor the precept 
 for holding the election, nor that the defendant's name was on 
 the register, (o) 
 
 Where on the trial of an indictment on the 2 & 3 Will. 4, c. 45, 
 s. 58, against the defendant for giving a false answer to the ques- 
 tion, ' Have you the same qualification for which your name was 
 originally inserted in the register of voters now in force for the 
 city of Bristol ? ' the sheriff's deputy stated that on the defendant 
 tendering his vote he had asked him the question as set out in the 
 indictment, but did not, at the end of the question, read from the 
 register the line in which his name and qualification were inserted, 
 'Lucy William, House, Lodge Street.' Wight man, J., held that 
 the defendant must be acquitted, as the particular qualification 
 ought to have been read over, {p) 
 
 The first four counts of an indictment upon 5 & (> Will. 4, 
 c. 76, s. 34, stated that the defendant, upon delivering in a votino- 
 paper, in the name of a burgess entitled to vote at the election, 
 was asked by the presiding officer the three questions in the terms 
 of the Act, and then alleged, ' to which questions (each of the two 
 first) the defendant then and there falsely and fraudulently an- 
 swered, " I am ; " ' and Williams, J., after consulting Patteson, J., 
 held that these four counts were bad for omitting the Avord 'wil- 
 fully.' ' Wilfully to make a false answer to the question ' pro- 
 posed was the definition of the offence by the legislature itself, and 
 it was a safe and certain rule that the words of the statute must be 
 pursued, (q) 
 
 The prisoner was indicted for fixlsely answering a question at a 
 municipal election under the 5 & G Will. 4, c. 7G, s. 34, The pri- 
 soner's father, William Goodman, had been a burgess of St. Alban's, 
 and those names remained on the overseer's lists ; but he had 
 been absent from home for a considerable time ; and the prisoner, 
 whose name was also William, resided in the same house, and 
 paid the parish rates, &c. At a municipal election the prisoner 
 offered to vote, and being asked, 'Arc you the person whose name 
 appears as "William Goodman" on the burgess roll now in force,' 
 answered ' Yes.' There was only one William Goodman on the roll. 
 Wightman, J., lield that there was no case against the prisoner, (r) 
 
 Upon an indictment against the defendant for a misdemeanor, 
 in falsely swearing that he bond fide had such an estate in law or 
 equity of the annual value of 800/., above reprises, as qualified 
 him to be a member of Parliament for a borough ; a surveyor 
 stated that the fair annual value of the property was about 'lUOl. 
 a year, but another witness stated that it was badly let, and be- 
 
 (o) Reg. V. 15owler, C. & M. 559, per 
 Patteson, J. The defendant was acriuit- 
 tediu this ease. In lleg. v. Ellis, (". & M. 
 5()1, the indictment was in a similar I'onn, 
 the defendant eonvicted, and the judg- 
 ment arrested in the Queen's Bench, no 
 cause being shown. 
 
 {j>) Keg. V. Lucy, C. & U. 510. This 
 enactment is now repealed, sec 35 & 3(j 
 Yict. c. 33, sihed. 
 
 (7) Iteg. r. Bent, 1 Den. C. C. K. 157 
 2C. & K. 179. Tlie above .section is in 
 part repealed liy 35 & 30 Vict. c. 33. 
 
 (/■) Keg. V. Cioodman, 1 F. & F. 502. 
 
 The descrip- 
 tion in the 
 register must 
 be read, or 
 the party is 
 not indictable. 
 
 An indictment 
 for making a 
 false answer 
 to the ques- 
 tions under the 
 5 & 6 Will. 4, 
 c. 76, s. 34, 
 at a municipal 
 election must 
 aver that the 
 defendant 
 'wilfully' 
 made the 
 false answer. 
 
 A father and 
 son of the 
 same name 
 and residence, 
 and the son 
 votes at a 
 municipal 
 election. 
 
 Indictment 
 for falsely 
 swearing to a 
 qualification 
 to sit as a 
 meml)cr of 
 rarliamcut.
 
 106 
 
 Of Pcrjiirf/. 
 
 [book v. 
 
 iMilirtinoiit 
 .'i^nin^t II ina- 
 Ki^lnito fur 
 :iiiiiiiiii.sU>riiig 
 all (uitli I'oii- 
 trary to tlio 
 :. * i; Will, i, 
 c. G'J, s. 13. 
 
 lii^'od it w:is wortli more tliuii 'M){)1. a year, and that lie told the 
 driciidaiit so, and that he did not think that the defendant had any 
 ri-ason to helievc that the (|iiali(ication, in point ol' value, was not 
 suflicient. It wa.s held that the jury must be satisfied, beyond all 
 doubt, that the property was not of the value of 300^. a year, and 
 that, at the time the defendant made the statement, he knew that 
 it was not of that value, (.s) 
 
 Till' first count of an indictment upon the o & Will. 4, c. (i2, 
 s. l.S, char<,fc{l that the defendant, bein*,^ a justice of the peace, did 
 unlawfully administer to and receive from J. Huxtablc a certain 
 vohmtary oath touching certain matters and things Avhereof the 
 defendant had not jurisdiction or cognizance by any statute. The 
 second and third counts slightly varied, and the fourth count 
 ncmtivcd the proviso in sec. 13. There were other counts 
 charfinf the defendant Avith administering oaths to two other 
 persons. The defendant had made a complaint to the bishop 
 against two clergymen, who officiated in his parish, that one had 
 played at thimble-rig, and that both had neglected the duties of 
 the parish. The bishop intimated that, before he could call on the 
 clerc^ymen to answer the complaint, the defendant must cither 
 bring before him the persons who proved the charges, or obtain 
 statements in writing of the facts. The defendant obtained state- 
 ments from the three persons mentioned in the indictment, and 
 swore them before himself, as a justice of the peace, to the truth 
 of the statements. The bishop had before appointed a day for 
 hearing the charges, and had summoned the clergymen to attend ; 
 but on finding that the depositions had been thus sworn, he de- 
 clined to look at them ; he went, however, into the charges on 
 other evidence. It appeared that the defendant was ignorant of 
 the statute rendering the administering voluntary oaths illegal. It 
 was contended, that the enacting part of the statute must be con- 
 strued with reference to the preamble ; that the enacting clause, 
 which prohibits 'any justice of the peace, or other person,' from 
 administering oaths, other than in matters over which jurisdiction 
 was given by statute, if taken by itself, would render unlawful the 
 taking of many oaths which could be administered by the common 
 law, that the enactment construed together with the proviso was 
 still too stringent, and that the enactment and proviso must be 
 governed by the preamble. Coleridge, J., in summing up, said, 
 he was of opinion that the enacting part of the statute Avas not 
 governed by the preamble ; that he considered the enacting part 
 of the section and the proviso preserved to justices of the peace all 
 the jurisdiction they had, as well at the common law as by statute, 
 to administer oaths ; and that the inquiry before the bishop was 
 clearly a matter in respect of which the defendant had no juris- 
 diction, either at common law, or by statute. He directed the 
 jury, that, if they Avere satisfied the defendant did administer the 
 oaths, they should find him guilty. The jury found the defendant 
 'guilty of inadvertently administering an oath or oaths;' and 
 Coleridge, J., held that that Avas a verdict of guilty, (t) 
 
 (s) Rex c. Do Bcaiivoir, 7 C. & T. 17, 
 T.onl Deum.in, C. J. A property quali- 
 fication for a member of parliament is 
 not now necessary, see 21 & 22 Vict. 
 
 c. 2G ; 37 & 3S Tict. c. 66. 
 
 (t) Reg. V. Nott, C. & M. 288. Sec 
 the section, auk, p. 30.
 
 CHAP. I. J 
 
 Declaration hefore Justices. 
 
 107 
 
 But the judgment was afterwards arrested upon the ground 
 that the indictment did not in any count show what the nature of 
 the oath was. There ought to have been a distinct allegation of 
 the subject-matter of the oath, showing affirmatively that it was 
 out of the jurisdiction of the magistrate. The question was matter 
 of law for the Court, and though it was not necessary to set out 
 the whole of the oath, still the facts should have been so stated as 
 to enable the Court to form its opinion upon the question whether 
 the oath was within the jurisdiction of the magistrate or not. {u) 
 
 Where a prisoner was indicted for makiog a false declaration 
 before a justice in pursuance of the rules of a benefit society, 
 which required a loss by fire in certain cases to be verified by sucii 
 a declaration ; it was objected that the o & G Will. 4, c. G2, s. 18, 
 did not extend to any declarations except those mentioned in the 
 preamble of that section ; but Erskine, J., held that the section 
 extended to all declarations generally, {y) 
 
 The prisoner was indicted for swearing a false declaration under 
 the 5 &, Q Will. 4, c. C2, s. 18, that he had done no act to en- 
 cumber certain lands, and that he was in possession of those 
 lands, and in the receipt of the rents and profits thereof The 
 declaration was duly sworn and made in support of an application 
 to a building society in 1861, for an advance of 150/. The mort- 
 gage deed of 1861 to the building society Avas produced, but the 
 attesting witness was not called to prove it. The original con- 
 veyance of the property to the prisoner was put in. It was 
 objected that the declaration was confirmatory of the mortgage 
 deed, and as that was not proved, it was not shown that the matter 
 sworn was material. It was answered that the declaration was 
 made to confirm the original conveyance, and not the mortgage, 
 which was executed after the declaration. Byles, J., ' I am of 
 opinion that the objection is fatal. The preamble of the 5 & G 
 Will. 4, c. 62, s. 18, (w) must be read with the enacting part ; and 
 as the deed, which rendered the declaration necessary, is not 
 proved, this indictment cannot be sustained.' {x) 
 
 The prisoner was indicted under the 5 &, Q Will. 4, c. 62, s. 
 12, (?/) for making a false declaration before a justice for the 
 borough of Liverpool that she had lost the pawn ticket of certain 
 goods pledged by her. The clerk to the justice could only speak to 
 the handwriting of the justice on the declaration, and, from the 
 great number of these declarations, he could not remember when 
 or where it was made. It was contended that there was no evidence 
 that the declaration had been made before the justice acting as 
 such or even witliin the borough ; and Gurney, R, held that the 
 objection was good. The justice might at all events have proved 
 that he had never taken such a declaration out of the borough, (z) 
 
 ■show that tlie disobedience was wilful, 
 and in the natme of a contempt ?' l'>ut 
 no opinion was pronounced upon this 
 point. See vol. 1, p. I!f2. 
 
 (v) Eeg. V. Hoynes, 1 C. k K. G5. Sec 
 this case, ante, p. 91. 
 
 («•) Ante, p. 31. 
 
 (,i) Keg. V. Co.\, 9 Co.\-, C. C. 301. 
 
 ()/) Ante, p. 30. 
 
 (::) Keg. V. Jlorgan, 1 Cox, C. C. 100. 
 No case was cited, and this decision rc- 
 
 The substance 
 of the oath 
 must be set 
 out. 
 
 The5& 6 
 Will. 4, c. 62, 
 s. 18, applies 
 to all declara- 
 tions. 
 
 Declaration in 
 support of an 
 application to 
 a building 
 society. 
 
 A declaration 
 under the 
 Pawnbroker's 
 Act must be 
 proved to 
 have been 
 made within 
 the jurisdic- 
 tion of the 
 justice. 
 
 {u) Reg. V. Nott, 4 Q. B. 768. In the 
 argument it was contended that the de- 
 fendant on the finding of the jury had 
 been guilty of no oflencc, and Lord Den- 
 man, C. J,, said, 'If the statute in tcnns 
 create an ollencc, all persons are bound 
 to know it. But if a statute enacts 
 something, without in terms making it 
 an offence, and you would eouvi<.'t a per- 
 son of misdemeanor in having disobeyed 
 such an euactmeut, are you not bound to
 
 108 
 
 Of Perjury. 
 
 [liOOK 
 
 V. 
 
 Kvidi'iico (if 
 iiuikin^' n 
 (lecliiritliiiii 
 uiiilor Itio 
 riiwtilirokcr'rt 
 Alt. Two 
 witiu'SHOH lie- 
 
 I'CSWU'V I" 
 
 lirovo till! 
 fiilhiiy (if till' 
 (Ivclunitioii. 
 
 Till' idisuiicr w.-xs indicted for liaving at Stroud, in the county 
 of (JloMccstcr, inado a false declaration before E. O. HallewcU, a 
 justice of the peace, that hi; had lost a pawnbroker's ticket. It 
 was opcne(l that the j)risonei' toM the jKiwjibroker that lie liad hjst 
 the ticket, and the pawnlnok(!r told him lie must make a decla- 
 ration of the los.s before a magistrate, and f(jr that purpose 
 handeil the prisoner a copy of the ticket and a form, to be filled 
 nj> according to the Act ; the prisoner paid for the form, saying he 
 would go to a magistrate ; he returned the same day with the form 
 ]u-oj>erly filled up, and with his name and that of Mr. Hallewell 
 attached ; but ^Lr. Hallewell was not able to recollect the fact of 
 the declaration having been made, and therefore was not present ; 
 but the pawnbroker identified the declaration. But tliere wa.s 
 only one witness to prove that the prisoner liad not lost the dupli- 
 cate. Piatt, B., * As regards the proof of the declaration having 
 been made by the prisoner, I think there may be sufficient evi- 
 dence to support the indictment, if you can bring liome to him a 
 knt)wledge of its contents ; but I am of opinion that the falsity of 
 that declaration must be proved by the oaths of two Avitnes.ses as 
 in a case of perjury, otherwise there would be but oath against 
 oath.' (rt) 
 
 quires rcponsidcration. See the next 
 case, and the note to it. 
 
 (a) Reg. V. Browning, 3 C"ox, V. V. 
 437. Tlie ruling of the learned P>aron 
 was right on both i)oints ; though an idle 
 doubt has been raised on the first point. 
 ir a man in writing admitted that he hail 
 made a declaration before a justice under 
 the Aet, no doubt can exist that such 
 writing would be sufficient evidence 
 against him ; and in tliis case the pri- 
 .soner produced a declaration in the form 
 under the Act, signed by himself and 
 the justice, and dealt with it, and ob- 
 tained the goods by it, as a valid deela- 
 ratien ; and it is perfectly clear that this 
 
 was abundant evidence that he had made 
 that deehiration in the manner and with 
 the formalities described in it. In Kcx v. 
 Spencer, 1 ('. & P. 260, ante, p. 85, Lord 
 Tenterden, C. J., said, 'The courts al- 
 ways give eredence to the signature of 
 the magistrate or commi.ssioner ; and if 
 his sicrnature to the jurat is proved, that 
 is sufficient evidence that the party was 
 duly sworn ; and if the place at which 
 it was sworn is mentioned in tlie jurat, 
 that is suttieient evidence that it was 
 sworn at that place.' And see Eex v. 
 .lames, and liriekcdl v. Hulse,«/i/r, p. 92, 
 and Keg. V. AVestley, Bell, C. C. 193, 
 anir, p. 87.
 
 109 
 
 CHAPTER THE SECOND. 
 
 OF CONSPIRACY. {(() 
 
 The conspiring to obstruct, prevent, or defeat the course of Descriptions 
 public justice; (6) to injure the public health, as by selling un- of conspiracy, 
 ■wholesome provisions ; (c) or to effect any public mischief (d) as by 
 raising the price of the public funds by illegal means ; (e) are 
 offences punishable by indictment. And it appears that an indict- 
 ment lies, not only wherever a conspiracy is entered into for a 
 corrupt or illegal purpo.se, but also where the conspiracy is to effect 
 a legal purpose by the use of unlawful means ; and this, althouo-h 
 such purpose be not effected. (/) And it is laid down in a book 
 of great authority that all confederacies whatsoever wrongfully to 
 prejudice a third person are highly criminal at common law ; as 
 where divers persons confederate together by indirect means to 
 impoverish a third person, or falsely and maliciously to charge a 
 man with being the reputed father of a bastard child, or to main- 
 tain one another in any matter, whether it be true or false, {g) 
 The conspiracy or unlawful agreement, though nothing be done in 
 prosecution of it, is the gist of the offence, (h) The nature of con- 
 spiracy therefore, requires that more than one jDerson should bo 
 concerned in it. In many cases an agreement to do a certain 
 thing has been considered as the subject of an indictment for a 
 conspiracy, though the same act, if done separately by each indi- 
 vidual without any agreement amongst themselves, would not 
 have been illegal, (i) It has been said that perhaps few things arc 
 left so doubtful in the criminal law, as the point at which a com- 
 bination of several persons, in a common object, becomes illegal, (j) 
 
 (a) The Acts relating to trade disputes iadictaLle. Sec post, p. 110, note (I). 
 will be found at the end of this chapter. (fj) 1 Hawk. P. C. c. 72, s. 2. It is not 
 
 (b) Hex V. Mawbey, G T. It. 619, et scq. necessary in an indictment for conspiring 
 4 Black. Com. 136. 1 Hawk. P. C. c. to charge a man with being tlie father of 
 72, s. 2. a bastard cliihl, to state that the cliargo 
 
 (c) Ilcg. V. Mackarty, 2 Lord Rayni. was false, Keg. v. Best, post, p. 11[». 
 1179. 2 East, P. C. c. 18, s. 5, p. 823. (/() Keg. r. Best, 2 Lord liayni. 1107. 
 4 Black. Com. lf)2. And see the remarks Ilex v. Si)ragg, 2 ]5nrr. 5)93. Box v. 
 upon Beg. v. Mackarty in 6 East, 133, Bispal, 3 liurr. 1320. Per Tindal, C. J., 
 141. O'ConncU v. Beg. 11 CI. & F. 155, ponf, 
 
 (d) See R. v. Boulton, 12 Cox, C. C. 87. p. 141. 
 
 (e) Bex V. De Bcrengcr, 3 M. & S. 67. (0 By Grose, J., in Rex v. I\[awbcy, 
 (/) Bex v. Journeymen Tailors of Cam- 6 T. B. 636. And .see Bex v. The Jour- 
 bridge, 8 Mod. n. Beg. r. Best, 2 Lord neymcu Tailors of Cambridge, 8 Mod. 11. 
 Raym. 1167. 6 Mod. 185. 1 East, P. C. Reg. v. Rowlands, 17 Q. B. 671, jmt. 
 c. 11, s. 11, p. 462. But an ac/ioa will Sec the new Act,38 & 39 Vict. c. 86, s. 3, 
 not lie for a conspirai^y unless it be ]iut posf, p. 161, as to when an agreement or 
 in execution, 9 Co. 57. W. Jones, 93. combination by several in furtlicraucc of 
 Savile i\ Boberts, 1 Lord Baym. 378. a trade dispute is not iudictiiblo. 
 
 And .sec 8 l\Iod. 320, that conspiring to (j) 3 Cliit. Criin. L. 1139. 
 
 do a lawful act, if for an unlawful end, is
 
 110 
 
 Of Conspiracy. 
 
 [book v. 
 
 Consnimoica 
 nj^niiiKt tlic 
 pui'lic justice 
 of tlio king- 
 dom by njjrcc- 
 iiig to make 
 false cliarges 
 and nccusa- 
 tioiis. 
 
 It appears, liowcvcr, to have been lioldon tliat if such persons ille- 
 gally concur in (l()in<,' an act tliey may be guilty of conspiracy, 
 tliougli they were not previously ac(iuainted with each other, {k) 
 It has been laid <lown that conspiracy is 'a crime which consists 
 fifhcr in a condjination and agreement by persons to do some 
 illi-^d act, or a combination and agreement to effect a legal pur- 
 pose l>y illegal means.' {1} And also that ' the crime of ccjnspiracy 
 is complete if two, or more than two, should agree to do an illegal 
 thinf ; that is, to effect something in itself unlawful, or to effect, 
 by unlawful means, something which in itself may be indifferent, 
 or even lawful.' {m) 
 
 Amongst the most flagrant instances of conspiracies against the 
 public justice of the kingdom, may be mentioned a case in which 
 the defendants were charged with a conspiracy, in causing a man 
 to be executed for a robbery, which they knew he was innocent of, 
 with intent to get into their possession the reward offered by Act 
 of Parliament, {n) And it Avould have been equally a conspiracy, 
 though the defendants had failed in their infamous design, and the 
 man had been acquitted. Indeed one of the more ancient descrip- 
 tions of conspiracy is ' a consultation and agreement between two 
 or more to appeal, or indict an innocent person falsely and mali- 
 ciously of felony, whom accordingly they cause to be indicted or 
 appealed ; and afterwards the party is lawfully acquitted by the 
 verdict of twelve men.' (o) But of this description it is observed, 
 that the lawful acquittal of the party grieved does not appear to 
 be required in order to make the offenders guilty of conspiracy. (^>) 
 The description of conspirators in the old statute, 33 Edw. 1, st. '1 
 (sometimes cited as 21 Edw. 1), is ' that consj)irators be they that 
 do confeder or bind themselves by oath, covenant, or other alliance, 
 that every of them shall aid and bear the other falsely and mali- 
 ciously to indict, or cause to indict, or falsely to move and maintain 
 pleas ; and also such as cause children within age to appeal men of 
 felony, whereby they are imprisoned and sore grieved ; and such as 
 retain men in the country with liveries of fees for to maintain their 
 malicious enterprizes ; and this extendeth as well to the takers as 
 
 (A) By Lord ^lansfield in the case of 
 the prisoners in the King's Bench, Hil. 
 T. 2tJ Geo. 3. 1 Hawk. V. C. c. 72, s. 2, 
 in the notes. Seejjos^, p. 149. 
 
 (/) Per Aldcrson, B. Keg. r. Vincent, 
 9 C. & r. 91, and in Kexr. Seward, 1 \. 
 k E. 713. Lord Dcnman, C. J., said, 'An 
 indictment for conspiiacy ought to show 
 either that it was for an uuhiwful pur- 
 pose, or to cttect a hiwful purpose by un- 
 lawful means ; ' but in Keg. v. Peck, 9 A. 
 & E. G86, the learned Chief Justice, upon 
 this dictum being cited, said, ' I do not 
 think the antithesis very conect ; ' and 
 in Keg. v. King, 7 Q. B. 782, the same 
 learned Chief Justice said, ' The words 
 "at least" .should accompany that state- 
 ment.' In Kex V. Jones, 4 B. & Ad. 345, 
 1 N. & JL 73, however, several learned 
 judges gave a similar definition of the 
 crime of conspiracv. And see ant>\ p. 
 109, note (/). C. S' G. See K. r. Bunsc, 
 12 Cox, C. C. 316. 
 
 (ni) Per Tindal, C. J., delivering the 
 
 opinion of all the judges in O'Connell v. 
 Keg., 11 CI. & F. 155, post, p. 141. 
 
 [n) Kex r. llacdauiel, 1 Leach, 45. 
 And see Fost. 130. See tH&oantf, vol. 1, 
 p. 662. It should seem that the only 
 objection to this being treated as a con- 
 spiracy was that which might arise from 
 its being considered as a crime of the 
 highest degree (z. c, murder, in which 
 the misdemeanor would be merged. 
 
 (0) 3 Inst. 143. 4 Black. Com. 136. 
 
 (p) 1 Hawk. P. C. c. 72, s. 2. In the 
 case of Kex r. Spragg, 2 Buit. 998, Serjt. 
 Davy said, ' There is a distinction be- 
 tween a writ of conspiracy and an in- 
 dictment for conspiracy. In an action 
 the damage is the gist of the action ; and 
 therefore the \mt and declaration must 
 charge ' ' that he was indicted and sus- 
 tained damage ; " but that is not neces- 
 sary in an indictment, which is for an 
 ofience against the public. And this dis- 
 tinction explains Lord Coke's meaning in 
 3 Inst. 143.'
 
 CHAP. II.] 
 
 To Make False Charges. 
 
 Ill 
 
 to the givers, and to stewards and bailiffs of great lords, -svlio by 
 their seigniority, office, or power, undertake to bear or maintain 
 quarrels, pleas, or debates, that concern other parties than such as 
 touch the estate of their lords or themselves.' From which defini- 
 tion of conspirators it is said that it seems clearly to follow that not 
 only those who actually cause an innocent man to be indicted, 
 and also to be tried upon the indictment, whereupon he is law- 
 fully acquitted, are properly conspirators, but that those also are 
 guilty of this offence, who barely conspire to indict a man falsely 
 and maliciously, whether they do any act in prosecution of such 
 conspiracy or not ; for the words of the statute seem expressly 
 to include all such confederacies under the notion of conspiracy, 
 whether there be any prosecution or not. (5) But it is also said 
 that since it does not appear to have been solemnly resolved 
 that persons offending by a false and malicious accusation against 
 another are indictable upon this statute, it seems to be more safe 
 and advisable to ground an indictment for such offence upon the 
 common law than upon the statute, {r) 
 
 A conspiracy of this kind appears, therefore, to consist in the 
 unlawful agreement to injure a person by a false charge; though 
 it be in no way jjrosecuted. And whether the conspiracy be to 
 charge a temporal or an ecclesiastical offence on an innocent 
 person, it is the same thing, (s) 
 
 A conspiracy to indict a person for the purpose of extorting 
 money from him is a misdemeanor, Avhether the charge be or be 
 not false, {t) 
 
 It seems not to be any justification of a confederacy to carry 
 on a false and malicious prosecution, that the indictment or appeal 
 which was preferred, or intended to be preferred in pursuance 
 of it, was insufficient, or that the court wherein the prosecution 
 was carried on or designed to be carried on had no jurisdiction 
 of the cause, or that the matter of the indictment did import 
 no manner of scandal, so that the party grieved was, in truth, in 
 no danger of losing either his life, liberty, or reputation. For 
 notwithstanding the injury intended to the party against whom 
 such a confederacy is formed may perhaps be inconsiderable, yet 
 the association to pervert the law, in order to procure it, seems to 
 be a crime of a very high nature, and justly to deserve the resent- 
 ment of the law. («) Therefore, on an indictment for wickedly 
 and unlawfully conspiring to accuse another of taking hair out of a 
 base, without allcsfing it to be an unlawful and felonious taking, it 
 was said by Lord Mansfield that the gist of the offence was the 
 unlawful conspiracy to do an injury to another by a false charge, 
 and that whether the conspiracy be to charge a inan with criminal 
 acts, or such only as may affect his reputation, it is sufficient, (r) 
 
 It is observed that it appears not only from the words of the 
 statute, but also from the plain reason of the thing, that no con- 
 federacy whatsoever to maintain a suit can come witliin the words 
 
 (7) 1 Hawk. r. C. c. 72, s. 2. 
 
 (r) Ibid. 
 
 (s) lieg. V. Best, 2 Lord Raym. 11G7. 
 1 Salk. 174. 
 
 (t\ Rex V. Hollingbcrrj', 4 B. & C. 329. 
 6 D. & R. 315. 8. r. 'J{cg. r. Ja(?obs, 
 1 Cox, C. C. 173 ; but whether the charge 
 
 Tlie false 
 charge need 
 not be prose- 
 cuted. 
 
 The confede- 
 racy to make 
 false charges, 
 &c., will be 
 equally crimi- 
 nal, though 
 the proceed- 
 ings intended 
 to be instituted 
 were defective. 
 
 But the con- 
 federacy must 
 be false and 
 malicious, and 
 
 be true or false is material on tlie (inos- 
 tion wlu'thcr the prosecution was bond 
 or maid fulc. Ibid. 
 
 {u) iHawk. P. C. 0. 72, s. 3. 
 
 ()•) Re.\ r. Rispnl, 151ack. R. 36S. 3 
 Burr. 1320. And soo Pippot v. Hcam, 
 5 B. & A. C34, ante, p. 53, note (;i).
 
 112 
 
 iJcmnnH nmy 
 citiiMull to 
 
 guilty i»cnton. 
 
 Condpimry *" 
 jiervcrl the 
 nuirsc of 
 jiislioc, liy 
 ]irii(lliriii;; i\ 
 false ccrtiliculc 
 of II lii^;hw!\y 
 l)cing in re- 
 pair. 
 
 Of Conspiracy. 
 
 [book V 
 
 Argument nf 
 the counsel 
 for the jirose- 
 cution. 
 
 of tlio 3.S Ivlw. 1, stat. 2, unless it bo both false and malicious, (u') 
 AikI srvcial pcrsoDs may lawfully meet tof,'ctlior and consult to 
 ])r()S('cut(; a ^'uilty person, or one against whom there is ])rol)able 
 cause of suspicion ; but not to prosecute one that is innocent, right 
 or wrono-. {x) And associations to prosecute felons, and even to 
 put the laws in force against political offenders, are lawful, iy) 
 
 It has been hehl that a certificate by justices of the peace that 
 an indicted highway is in repair, is a legal instrument, recognized 
 bv the courts of law^ and admissil)le in evidence after conviction, 
 w'hen the court is about to impose a fine; and that, consef|uently, 
 it is illegal to conspire to pervert the course of justice by producing a 
 false certificate in evidence to influence the judgment of the court. 
 The indictment stated that a highway was indicted as being out of 
 repair, and a plea of not guilty, but that it was intended to apply to 
 withdraw the pica and plead guilty ; that two justices of the county, 
 and two other persons, conspired to pervert the course of justice 
 and impose on the court by producing a false certificate from the 
 two defendants, who were justices, that the road was in repair, and 
 that they did so. There was a verdict against the two justices, 
 and a rule was obtained to arrest the judgment. Upon showing 
 cause against this rule the counsel for the prosecution went at 
 large into a discussion of the doctrine and nature of conspiracies. 
 He said that it follows from the very nature of the offence of con- 
 sjuracy that there is no charge of any specific crime, but it consists 
 wholly in the unlawful combination ; and this will appear fidly by 
 adverting to the several sorts of conspiracy to be found in the 
 Books. 1. Where the subject-matter is ueWhev malum pro] cibi- 
 tum, nor malum in se, as referred to the individual ; but the 
 criminality in law arises wholly from the conspiracy. Such as an 
 agreement to maintain each other, right or wrong; (s) or a combi- 
 nation amongst labourers or mechanics to raise their wages, (a) 
 So where several conspired to hiss at the Birmingham Theatre, 
 Lord Mansfield held it indictable, although each might have done 
 so separately. (6) So a combination between ofiicers in the service 
 of the East India Company to resign their commissions was held 
 an illegal act ; and consequeutk a resignation tendered under 
 those circumstances was held not to be a determination of the ser- 
 vice, (c) 2. Where the subject-matter is not malum ijrohihitum, 
 as referred to the individual, though malum in se ; but the crimi- 
 nality in law arises from the conspirac}'', such as a malicious com- 
 bination against a trader to ruin him in his trade, {d) So the 
 taking up dead bodies, even though for the purpose of science in 
 dissecting them, is now held an indictable offence i^cr sc ; (e) yet 
 formerly it was not .so considered, but even then it was held that 
 an indictment lay for conspiracy to do so. (/) A false indictment 
 
 (h-) 1 Hawk. r. C. c. 7-2, s. 7. 
 
 (a-) Kei,'. V. Best, 1 Salk. 174. And 
 sec 1 Hawk. P. C. c. 7"2, s. 7. 
 
 (y) Kcx r. Murr.iy, 1 Chit. Burn's Just. 
 817. Matth. Dig. 90. Abbott, C. J., 
 GuiMliall, 1S23. 
 
 (r) y L'o. 5ii. 
 
 («) 8 Jlod. 10 ; but see Keg. r. Kow- 
 lands, 17 Q. B. 671, post, p. 171. 
 
 (b) Anon., B. K. 18 or 19 Geo, 3. 
 
 (c) 4 Bun-. 2472. 
 
 {d) 1 Stra. 144. 1 Lev. 125. Eex r. 
 E<M'los, 1 I^^acli, 274, j'osf, p. 124. Beg. 
 r. Kowlands, 17 Q. B. 671, post, p. 171. 
 
 (c) Kex V. I.vnn. 2 T. K. 733. 
 
 (/) Hex r. Young, cited in 2T. K. 733. 
 This was an indictment for a conspiracy 
 to prevent the burial of a corpse. And 
 see a precedent for such a conspiracv, 
 2 Chit. Crim. L. 36,
 
 CHAP. IT.] To Pervert Course of Justice. 113 
 
 is no crime as referred to the individual, {g) but a conspiracy for 
 that purpose subjects the offenders to the villanous judgment. (A) 
 The private slander of another by an individual is not indictable ; 
 but conspiring to charge another with slanderous matter is so, (i) 
 though no legal charge be actually preferred, {j) And in this latter 
 case it'was held that the Quarter Sessions had jurisdiction over 
 conspirators. It is the same with private immorality, which is only 
 indictable when coupled Avith a conspiracy, {k) So two or more 
 joining to do legal acts with a corrupt intent may be indicted. (?) 
 And pi'ivate deceits, coupled with a conspiracy, are indictable on 
 that account. (7?i) 3. The third head of conspiracy is where the 
 subject-matter is malum prohibitum, as referred to the individual, 
 and the criminality in law is thereby aggravated if executed. Of 
 this nature is the bare attempt to subvert religion, (n) or pubhc 
 justice ; and the latter will apply to both descriptions of counts in 
 the indictment. Such also is the endeavour to dissuade witnesses 
 from giving evidence, (o) or the preparation of witnesses, (j^j) or 
 the tampering with jurors, (q) Such are public frauds in trade, (/■) 
 or public cheats, (s) or deceit or collusion in the King's courts, or 
 any consent thereto, (t) 4. Where there is a bare conspiracy un- 
 executed, (u) or where the conspiracy by the execution merges in 
 a higher offence, (v) And he then argued that the offence charged 
 against the defendants fell within the principles of the above cases. 
 In giving his judgment in this case, Ashhurst, J., said, ' The prin- Opinions of 
 cipal question is, whether a conspiracy to pervert the course of tlie judges, 
 justice by producing in evidence a false certificate be or be not a 
 crime ? It seems to me that a greater offence can hardly be stated 
 than that of obstructing or perverting the course of justice, on 
 which the lives and properties of all the subjects depend.' And 
 Grose, J., said, ' It is laid down in some of the cases that an attempt 
 to jDersuade another not to give evidence in a court of justice is in- 
 dictable ; then it cannot be doubted but that an attempt to mislead 
 the court by misrepresentation is equally criminal. The course of 
 justice is perverted if the certificate of the justices be false. If 
 they agree to certify that a road is in repair for the purpose of per- 
 verting the course of justice it is a crime and indictable ; and it is 
 not necessary that they should know at the time of such agreement 
 that the road is out of repair ; it is sufficient that they did not 
 know that the fact which they certified to be true was true.' And 
 Lawrence, J., said, ' Tiie question is, whether a conspiracy to do an 
 act from which the public may receive any damage be or be not 
 
 {(/) 1 Ed. 3, Stat. 2, c. 11. 2 Black. 904. And see Rex r. Stcventon, 2 East, 
 
 Rep. 1328, 9. K. 362. 
 
 (h) Ibid. Sec as to the jiidgiueut, {p) Hob. 271. 3 Inst. 10(5. 2 Show. 1. 
 
 post, \\ 158. (7) 1 Saund. 300. 1 Lord Rayni. 148. 
 
 (/) 1 Lev. 62. 1 Vent. 304. 1 Burr. 510. Kex i-. Jollille, 4 T. K. 285. 
 
 (j) 1 Salk. 174. 1 Stra. 193. 3 Burr. Co. Lit. 157. 
 
 1320. ir) 1 Sess. Cas. 217. Comb. 16. 1 
 
 {k) 1 Salk. 382, 552. 3 Burr. 1434, Sid. 409. 1 Ventr. 13. 
 
 1878. 2 Lord Eayni. 1031. 4 St. Tr. {s) 5 St. Tr. 486. 1 Latcli. 202. 1 
 
 515. Boll. Bup. 2. 2 Lord Kayn;. 865. 1 
 
 (/) Rex V. Robinson, 1 Leach, 37. 8 Barnard. 330. 
 
 Mod. 321. 1 Wils. 41. 3 Burr. 14:39. (/) 3 Edw. 1, c. 29. 2 Inst. 212, 217. 
 
 (m) 6 Mod. 42, 301. 2 Burr. 1127. (n) 1 Lev. 62, 125. 1 Vent. 304. 3 
 
 2 Stra. 866. Burr. 1320. 1 Lord Rayni. 379. 1 Salk. 
 
 (11) Fitzg. 66. 174. 1 Stra. 193. T. Kavni. 417. 
 
 (0) 1 Hawk. P. C. c. 21, s. 15. 2 Stra. (c) 1 Lord Rayin. 711. " 
 
 VOL. in. I
 
 114 
 
 Of ConspiriMy. 
 
 [book v. 
 
 A conspiracy 
 to defeat an 
 information. 
 
 A conspiracy 
 to cause a 
 person, who 
 had been 
 bound over to 
 prosecute, not 
 to do so. 
 If the neces- 
 sary effect of 
 a conspiracy 
 be to defeat 
 the ends of 
 justice, it must 
 be taken tlial 
 that was the 
 object of tho 
 conspiracy. 
 
 ImlictaLlu? At first I tliou<,'lit tliis a very doubtful case, Ijocause 
 it struck mo tliat tliis was an act by wliich the public would not 
 suffer, Jis tlio court of tlio assizes were not bound to receive the cer- 
 tificate of the defendants, it not being on oath. But on examina- 
 tion it appears that the practice of receiving the certificates of 
 ma'fistratcs resprcting the state of roads, lias existed as far as the 
 nuMuorv of living persons extends, and the Books carry it still fur- 
 ther back. I have not been able to discover how or when tho 
 practice of receiving these certificates arose; but a practice that 
 has been adopted in the courts at least as long back as the reign of 
 Charles the First, goes a great way to show what the law is upon 
 the subject. And this is not the only instance of receiving certifi- 
 cates in evidence ; certificates of bishops with respect to marriages 
 arc received ; the customs of London are certified by the recorder ; 
 so formerly Avcrc certificates received from the captain of Calais ; 
 and in Cro. Eliz. 502, this court said that they would give credit 
 to the certificates of the judges in Wales respecting the prac- 
 tice of their court, and that the custom of the court is a law in 
 that court.' {w) 
 
 Where one brother had executed a conveyance of land to another 
 for the avowed object of giving the latter a colourable qualification 
 to kill game, and to get rid of an information then pending against 
 him, it seems to have been considered as quite clear that they were 
 both guilty of an indictable conspiracy, {x) 
 
 A count alleged that C. Staden, J. James, and J. Broome had 
 been committed for trial for having, by cheating and false pre- 
 tences, obtained from W. Hamp 300^., and that W. Hamp had been 
 bound by recognizances to prosecute them ; and that W. Hamp, 
 W. Watkins, and W. Probert, intending to defeat the due course 
 of law, did agree amongst themselves and with the wife of the said 
 J. Broome that W. Hamp should not attend to prosecute or give 
 evidence, and should receive, in consideration thereof, 4-00?. from 
 the said wife of J. Broome ; and then alleged that W. Hamp did 
 receive the 400/. The three following counts alleged the object to 
 be to defeat and obstruct the due course of law. The prefatory 
 averments were proved, and the wife of J. Broome proved that, 
 prior to the trial for cheating Hamp, she met the now defendants 
 at a tavern ; they said that they were sorry to carry on the prose- 
 cution ; and if she would give them 500/. they Avould not do so ; 
 and after some conversation it was arranged that a cheque for 400Z. 
 should be given, and it was given, and W. Hamp thereupon told 
 her that they would not further prosecute her husband. W. Hamp 
 had been bound by recognizances in 500/. to prosecute. For the 
 defendants it was alleged that J. Broome had such influence over 
 W. Hamp that the latter had made an affidavit exculpating J. 
 Broome from any participation in the fraud, and that he was thus 
 placed in the dilemma that, if he did not prosecute, he forfeited 
 his recognizances, and, if he did pro.secute, he might be indicted 
 for perjury ; and that Probert, avIio was his guardian, in order to 
 extricate his ward from this position, had been a party to the 
 compromise, but without any intention to do A\Tong, or to obstiTict 
 
 (ic) Rex r. 
 633. 
 
 Mawbcy, 6 T. K. (319 to 
 
 (x) Doe dcm. Roberts v. Roberts, 2 B. 
 & A. 367.
 
 CHAP, II.] 
 
 To Raise Price of Funds. 
 
 115 
 
 the course of justice. But Lord Campbell; C. J., held that, if the 
 necessary effect of the agreement was to defeat the ends of justice, 
 that must be taken to be the object ; and the jury were directed 
 to say, on the first and second counts, whether the defendants did 
 agree not to prosecute as therein alleged ; and on the third and 
 fourth counts whether they conspired to obstruct and defeat the 
 ends of justice. If they did so agree and conspire, whatever might 
 be their private reasons, it was the duty of the jury to convict the 
 defendants, {y) 
 
 Where the plaintiff had been arrested for 38?. at the suit of 
 Cohen, and Blake had become bail for her, and some proceedings 
 had been taken against him as bail, and Blake, Cohen, Swaysland, 
 and Solomon went to the plaintiff's lodgings, and Blake said he 
 must have his money or the plaintiff must go to gaol, and stated 
 that Swaysland and Solomon were officers, which was not the fact ; 
 and the plaintiff being frightened, delivered to Blake a watch and 
 other articles, and Swaysland and Solomon wrote two papers, 
 which were signed by the plaintiff and Blake, and which papers 
 stated that the articles were deposited with Blake as a security, 
 and that he should be at liberty to sell them Avithin forty-two 
 days unless he was paid in the meantime ; Lord Lyndhurst, 
 C. B., held that, as the defendants all acted in concert, they 
 were guilty of a conspiracy, for which they might all have been 
 indicted. (0) 
 
 It has been held to be an indictable offence to conspire on a 
 particular day by false rumours to raise the price of the public 
 government funds, with intent to injure the subjects who should 
 purchase on that day, and that the indictment was well enough 
 without specifying the particular persons who purchased as the 
 persons intended to be injured, and that the public government 
 funds of this kingdom might mean either British or Irish funds, 
 which since the Union were each a part of the United Kingdom. 
 After argument in arrest of judgment, Lord EUenborough, C. J., 
 said, ' I am perfectly clear that there is not any ground for the 
 motion in arrest of judgment. A public mischief is stated as the 
 object of this conspiracy; the conspiracy is by false rumours to raise 
 the price of the public funds and securities, and the crime lies in 
 the act of conspiracy and combination to effect that purpose, and 
 would have been complete, although it had not been pursued to its 
 consequences, or the parties had not been able to carry it into 
 effect. The jDurposc itself is mischievous ; it strikes at the price of 
 a vendible commodity in the market, and if it gives a fictitious 
 price by means of false rumours, it is a fraud levelled against all 
 the public, for it is against all such as may possibly have anything 
 to do with the funds on that particular day.' Bayley, J., ' It is not 
 necessary to constitute this an offence that it should be prejudicial 
 to the public in its aggregate capacity, or to all the King's subjects, 
 but it is enough if it be prejudicial to a class of the subjects. 
 Here then is a conspiracy to effect an illegal end, and not only so, 
 
 (?/) Reg. V. Harap, 6 Cox, C. C. 167. 
 Lord Campbell, C. J., held that the facts 
 did not support counts charging a con- 
 spiracy to obtain money IVoin the wife of 
 .1. IJroome, witli intent to cheat iiim of it. 
 The first count had only the word 'agree' 
 
 Conspiracy by 
 a bail and 
 others to 
 obtain security 
 from the 
 defendant. 
 
 Conspiracy to 
 raise the price 
 of the public 
 funds on a 
 particular day 
 by false ru- 
 mours. 
 
 and not conspire, and on its being said 
 that this count did not charge a con- 
 spiracy, Lord Campbell said, ' Nothing 
 turns on that. Conspire is nothing: 
 agri'cment is the thing.' 
 
 (c) IJloomficld V. lilake, 6 C. & P. 75. 
 I 2
 
 lie 
 
 Of Conspiracy. 
 
 [book v. 
 
 Conspiracy lo 
 iiujiovcri.'-h 
 tlie farmers of 
 tlic excise. 
 
 To raise tlic 
 price of oil. 
 
 Conspiracy to 
 obtain money 
 liy procuring' 
 from the lonls 
 of tlic treasury 
 the appoint- 
 ment of a per- 
 son to an 
 office in the 
 customs. 
 
 Conspiracies 
 to commit 
 riots. 
 
 but to effect it liy illot^al mcun.s, bccriuse to rai.sc the funds by false 
 rumours is l)y ille<^al means. And the end is illegal, for it is to 
 create a temporary rise in the funds ■without any foundation, the 
 ncces.sary consequence of wliich must be to prejudice all those who 
 become i)urclia.sc'rs during the peritjd of that fluctuation.' Dampier, 
 J., ' J own I cannot raise a doubt, but that this is a complete crime 
 of conspiracy according to any definition of it. The means used 
 are wrong, they were false rumours ; the object is wrong, it was to 
 give a false value to a commodity in the public market, which was 
 injurious to those who had to purchase.' (a) 
 
 In the argument upon the foregoing case an authority was 
 cited where the defendants being acquitted of all but conspiring 
 to imj)overish the farmers of the excise, it was objected that there 
 was no offence; but the Court held it well, because the informa- 
 tion showed that the excise was parcel of the revenue of the 
 crown, and so the impoverishment of the farmers of excise tended 
 to prejudice the revenue of the crown. (6) 
 
 It seems that parties may be guilty of a conspiracy to raise the 
 price of oil by making fictitious sale.s. (c) 
 
 A conspiracy to obtain money by procuring from the lords of 
 the treasury the appointment of a person to an office in the customs 
 is a misdemeanor at common law. The counsel for the defendant 
 proposed to argue that the indictment was bad on the face of it, 
 as it was not a misdemeanor at common law to sell or to purchase 
 an office like that of a coast waiter, and that, however reprehensible 
 such a practice might be, it could only be made an indictable 
 offence by Act of Parliament. But Lord Ellenborough, C. J., 
 said, ' If that be a question it must be debated on a motion in 
 arrest of judgment, or on a writ of error. But after reading the 
 case of Rex v. Vaughan, (d) it will be very difficult to argue that 
 the offence charged in the indictment is not a misdemeanor.' And 
 Grose, J., in passing sentence, likewise observed that there could 
 be no doubt that the indictment was sufficient, and that the offence 
 charged was clearly a misdemeanor at common law. (e) 
 
 Precedents are to be met with in the Books of indictments for 
 conspiracies to commit riots. (/) And in one case, it was said 
 by a learned judge, with respect to premeditated and systematic 
 tumults at a theatre, that ' the audience have certainly a right to 
 express by applause or hisses the sensations which naturally pre- 
 sent themselves at the moment ; and nobody has ever hindered, 
 or would ever question, the exercise of that right. But if any body 
 of men Avere to go to the theatre with the settled intention of 
 hissing an actor or even of damning a piece, there can be no doubt 
 that such a deliberate and preconcerted scheme would amount to 
 a conspiracy, and that the persons concerned in it might be 
 brougiit to punishment.' (g) 
 
 (a) Kex r. Do Bereuger, 3 U. & S. 67. 
 K. r. GuriK'v, 11 Cox, C. C. 414. 
 
 (b) Rex V. Starling, 1 Sid. 1/4. 
 
 (0 Kex r. Hilbei-s, 2 Chitty Rep. 163. 
 This was a motion for a criminal infor- 
 jnntiou for a conspiracy to raise tlie price 
 of oil by making lictitions sales, and the 
 court held that it nuist appear that two 
 combined together, as it was no otlenec 
 
 for an individual separately to endeavom-. 
 
 (il) 4 Rurr. '2494. Vol. 1, p. 309. 
 
 (c) Kex r. Pollnian, 2 Campb. 229. 
 
 if) 2 Chit. Criui. L. 506, note (a). 
 See"Rex r. Vincent, 9 C. & P. 91. 
 
 (;/) By Jlanslield, C. J., in Cliflbrd r. 
 Brandon, 2 Camp. 369. Gregory v. The 
 Duke of Brunswick, 6 M. & G. 953. 3 
 C. B. 481. 1 C. & K. 24.
 
 CHAP, ir.] To Excite Discontent. 117 
 
 Where some of the counts of an indictment charged the de- Conspiracies 
 fendant with conspiring to cause a great number of persons to *° ^^'-''**^ ^^^' 
 meet together for the purpose of exciting discontent and dis- disaffection, 
 affection in the minds of the subjects of the Queen, and for the 
 purpose of exciting the said subjects to hatred and contempt of 
 the government and constitution, and it appeared that a large 
 number of persons had assembled at meetings, at which violent 
 speeches had been made respecting the government and constitu- 
 tion and the people's charter, Alderson, B., told the jury, 'The 
 purpose which the defendants had in view, as stated by the prose- 
 cutors, was to excite disaffection and discontent, but the defendants 
 say that their purpose was by reasonable argument and proper 
 petitions to obtain the five points mentioned by their learned 
 counsel. If that were so, I think it is by no means illegal to peti- 
 tion on those points. The duration of Parliaments and the extent 
 of the elective franchise have undergone more than one change by 
 the authority of Parliament itself; and with respect to the voting 
 by ballot, persons whose opinions are entitled to the highest 
 respect are found to differ. There can also be no illegality in 
 petitioning that members of Parliament should be paid for their 
 services by their constituents ; indeed, they were so paid in 
 ancient times, and they were not required to have a property 
 qualification till the reign of Queen Anne, and are now not re- 
 quired to have it in order to represent any part of Scotland or the 
 English Universities.' And the learned Baron directed the jury 
 to say whether they were satisfied that the defendants conspired 
 to excite disaffection, and if they were to find them guilty of 
 conspiracy, [h) 
 
 Several cases have occurred in which the conspiring and con- Conspiring to 
 triving, by sinister means, to marry a pauper of one parish to a ^'''""^ paupcis 
 settled inhabitant of another, in order to bring a charge upon it, (.\\ax^c a 
 have been considered as indictable offences, (i) It is observed parish, 
 respecting a conspiracy of this kind, that, considering the offence 
 is a prostitution of the sacred rites of marriage, for corrupt and 
 mercenary purposes, and that, by artful and sinister means, per- 
 sons are seduced into a connection for life witliout any inclination 
 of their own, and contrary to that freedom of choice which is 
 peculiarly required in forming so close an union, and on which the 
 happiness of them both so entirely depends ; and this for the sake 
 of some gain or saving to others who bring about such marriage ; 
 in this light it seems a fit ground for criminal cognizance, not 
 only as being a great oppression upon the joarties themselves more 
 immediately interested, but as an otience against society in general, 
 being an abuse of that institution by which society is best con- 
 tinued and legal descents preserved, and a perversion of the pur- 
 poses for which it was ordained, (y) But where, upon an indict- 
 ment against parish officers for a conspiracy of this kind, it appeared 
 that a man of one parish having gotten a woman with child belong- 
 ing to another, the defendants had agreed with the man (who was 
 
 (h) Regr. Vincent, 9 C. & P. 91. Sec ( /) Pox v. Tarrant, 4 Burr. 2100. Pox 
 
 O'Conncllv. Peg., 11 CI. & F. 1^)5, i^ost. v. llerb.Tt, 1 East, P. 0. c. 11, s. 11, 
 
 Since this case the Ballot Act has passed p. 461. Rex v. Compton, Cald. 246. 8 
 
 (see 35 & 36 Vict. c. 33) ; and the property Mod. 320. 
 
 qualification of members of Parliament (j) 1 East, P. C. c. 11, s. 11, p. 461. 
 
 has been abolished by 21 & 22 Vict. c. 26.
 
 118 Of Conspiracy. [book v. 
 
 of ilie aj^c of 29), witli the approLation of his father, to {(ivo him 
 two «Mrmfa.s if he \V(ju1(1 marry the woman, and that he afterwards 
 niairifd lur <»n .siicli condition, and received the money from the 
 defendants immediately after tlie marriatje ; and it was also sworn, 
 both by the man and the won)an, that they were willing to marry 
 ut the time ; Builer, J., directed an ac([uittal, notwithstanding the 
 proof of the money having been given to procure such consent ; 
 and tins after the putative father had been taken up under a 
 magistrate's warrant, and was in custody of the overseers. And 
 that learned judge lield it necessary, in support of such an indict- 
 ment, to show that the defendants had made use of some violence, 
 threat, or contrivance, or used some sinister means to procure the 
 marriage without the voluntary consent or inclination of the parties 
 themselves ; and that the act of marriage, being in itself lawful, a 
 conspiracy to procure it could only amount to a crime by the 
 practice of some undue means, {h) 
 
 In a case where the indictment stated the marriage to have 
 been procured by threats and menaces against the peace, &c., it 
 was holden to be sufficient, witliout averring in terms that the 
 marriage Avas against the will or consent of the parties, though 
 that must be proved. {I) 
 'S.'ix V. Seward. And it has since been held that an indictment does not lie for 
 conspiracy merely to exonerate one j^arish from the charge of a 
 pauper and to throw it on another, nor for conspiring to cause a 
 male pauper to marry a female pauper for that purpose, it not 
 being stated that the conspiracy was to effect such marriage by 
 force, threats, or fraud, or that it was so effected in pursuance of 
 the conspiracy, (m) An allegation in such an indictment that a 
 poor unmarried Avoman iu a parish was with child is not equivalent 
 to an allegation that she was chargeable to such parish, (a) And 
 it has been doubted whether an allegation that the defendants 
 conspired together for the purpose of exonerating, is equivalent to 
 an allegation that they conspired to exonerate, (o) 
 
 Upon an indictment for conspiring together, and giving the 
 husband money to marry a poor helpless woman, who was an in- 
 habitant of B., in order to settle her in the parish of A., where the 
 husband was settled, judgment Avas arrested, because it was not 
 averred that she Avas last legally settled in B. {p) But it is ob- 
 served, that it seems to be perfectly immaterial Avhere the Avoman's 
 settlement Avas, if it were not in A., provided that fact distinctly 
 appeared, (q) It is further said, hoAvever, that it is usual to aver 
 the settlements of the parties in their respective parishes, and 
 also that the Avoman was chargeable to her OAvn parish at the 
 time, though this latter has never been adjudged to be necessary, 
 nor seems to be required according to the general rules Avhich 
 govern the offence of conspiracy, {r) It should seem that in 
 
 (l-) Rex V. Fowler, 1 E;ist, P. C. c. 11, Taunton, J., ibid. 
 
 p. 461. And the learned judge said (o) Per Williams, J., ibid, citing Kex 
 
 that this point had been so ruled several v. Nield, 6 E;ist, 417. But see Rex r. 
 
 tinios by several judges. Ridgway, 5 B. i Aid. 527, where Rex v. 
 
 (I) Rex V. Parkhouse, 1 East, P. C. c. Meld was doubted by Lord Tenterden, 
 
 11, s. 11, p. 46-2, Builer, J. C. J. 
 
 (m) Rex r. Seward, 1 A. & E. 706. ( ;>) Rex v. Edwards, 8 Mod. 320. 
 
 3 N. & M. 557. (7) 1 East, P. C. c. 11, s. 11, p. 462. 
 
 («) Per Lord Denman, C. J., and {>■) Id. ibid.
 
 CHAP. II.] 
 
 To Defraud. 
 
 119 
 
 such cases both tho purjiose and the means used are clearly 
 unlawful. 
 
 Conspiring to let a pauper land to the intent that he may gain 
 a settlement is illegal, (s) 
 
 Conspiring to charge a man with being the father of a bastard 
 child, with intent to extort money from him, is indictable ; and 
 where the object is stated to be to extort money, it is immaterial 
 whether the woman is or is not pregnant^ (t) And conspiring to 
 make such a charge, though without any intent to extort money, 
 is indictable ; and it is not necessary to state in the indictment 
 that the charge was false, or that the child was likely to be 
 chargeable. The court doubted upon the objection that the charge 
 was not stated to be false, but ultimately they held the indictment 
 to be sufficient, as the defendants were at least charged with 
 conspiring to accuse the prosecutor of fornication, and although 
 that was spiritual defamation, conspiring to do it was a temporal 
 offence, {ii) 
 
 The frauds practised by swindlers may sometimes be indictable 
 as conspiracies. In a case which has been mentioned in a former 
 part of this work, {v) where the prisoner had been acquitted upon 
 a charge of forgery, he was afterwards indicted with two of his 
 associates for a conspiracy to defraud. The indictment charged 
 that the defendants Hevey, Beatty, and M'Carty, fraudulently and 
 unlawfully conspired that Beatty should write his acceptance to a 
 certain paper-writing, purporting to be a bill of exchange, &c. (the 
 tenor of which was set out) in order that Hevey might, by such 
 acceptance, and by the name M'Carty being indorsed on the back 
 thereof, negotiate the said paper-writing as a good bill of exchange, 
 truly drawn at Bath, by one Jer. Connell, for Smith and Co., as 
 partners in the business of bankers, under the style of Bath Bank, 
 as persons well known to them the said defendants, and thereby 
 fraudulently to obtain from the King's subjects goods and monies ; 
 that Beatty, in pursuance of such conspiracy and agreement, did 
 fraudulently and \\\x\ix.\\h\\\y write his acceptance to the said paper- 
 writing to the tenor following, viz., 'Accepted, 20 Nov. — 81, 
 R. B.,' well knowing the firm of Smith and Co. to be fictitious ; 
 that the defendants procured the indorsement 'B. M'Carty ' to be 
 written on the same, and that the said Hevey, in pursuance of 
 such fraudulent conspiracy, did utter the said paper-writing to one 
 S. Read, as and for a good bill of exchange, truly drawn, &c., and 
 accepted by the said Beatty as a person able to pay the said sum 
 of 80^., in order to negotiate the same, and by means thereof did 
 fraudulently obtain a gold watch, value twelve guineas, and 
 7?. (Ss. in money; whereas, in truth, at the time of drawing, 
 accepting, and .uttering the said bill, there were no such persons 
 as Smith and Co. in the business of bankers at Bath, and the said 
 Beatty was not of sufficient ability to pay the said 30^., they, 
 the defendants, well knowing the same, &c., whereby they de- 
 frauded the said S. Head of tlie said goods and monies. The facts 
 so charged being fully proved, the defendants were convicted, {vi) 
 
 (s) Per cur. Rex v. Edwards, 8 Mud. 
 320. 
 
 {t) Rex V. Armstrong, 1 Veutr. 301. 
 1 Lev. 62. Sid. 68. 
 
 (w) Reg. V, Best, 2 Lord Raym. 1167. 
 
 (r) Vol. 2, p. 630. 
 
 (iv) Rex V. Hevey, 2 East, P. C. c. 10, 
 s. 5, p. 858, note {a). Anouyuioua, 1782. 
 MSS. Baylcy, J., Rose. Cr. Evid. 368. 
 
 Conspiracy to 
 charge a man 
 witli being the 
 fatiier of a 
 bastard cliild. 
 
 Conspiracies 
 to defraud. 
 
 Conspiring to 
 make a frau- 
 dulent accept- 
 ance of a bill 
 of exchange.
 
 Il2() 
 
 Ciin.Hiiiracy to 
 
 (Icfriiuil 
 
 trii'lcHincn. 
 
 Connpirnry of 
 brokom iit- 
 tondinK hjiIch 
 l>y auction. 
 
 Of Coiispiracij. 
 
 [book v. 
 
 Conspiring to 
 fabricate 
 shares in ad- 
 dition to the 
 limited num- 
 ber of which 
 a joint stock 
 company 
 consists. 
 
 Conspiracy to 
 barter un- 
 wholesome 
 wine. 
 
 Ill (iiM- raso tlio defendants were convicted on an indictment 
 wliicli eliartfcd tlicm with a con.spiracy to cause themHclves to bo 
 l)eli(!V('d j)('rsuiis of \i\v<i,v, ])roperty for tlio jturposo of defrauding 
 trad(>snion. (.'■) 
 
 NN'hcn" in an action for .slander it appeared that certain l)roker.s 
 were in i\\v hal)it of agi'eeing together to attend sales by auction, 
 anil that one of them only should bid for any particular article, 
 and that after the .sale they should have a meeting consisting of 
 themselves only, at another place, to put up to sale among them- 
 selves, at a fair price, the goods that each had bought at the 
 auction, and that the difTerence between the price at which the 
 goods Avere l^ought at the auction, anfl the fair price at this 
 jirivate resale, should be shared among them ; Gurney, B., was of 
 opinion that, as owners of goods had a right to expect at 
 an auction that there would be an open competition from the 
 public, if a knot of men went to an auction upon an agree- 
 ment among themselves of the kind that had been described, 
 they were guilty of an indictal)lc offence, and might be tried for 
 a conspiracy, {y) 
 
 A mock auction, with sham bidders, who pretend to be real bid- 
 ders, for the purpose of selling goods at prices grossly above their 
 worth, is an offence at common law ; and persons aiding or abet- 
 ting such a proceeding may be indicted for a conspiracy with 
 intent to defraud, {z) 
 
 Where an indictment alleged that a certain joint stock com- 
 pany had been established, the capital of which was to consist of 
 2,000 shares, and charged the defendants with conspiring to fabri- 
 cate a great number of other shares in addition to the said 2,000, 
 and it appeared that the company had not been legally esta- 
 l)lished ; Abbott, C. J., was of opinion that if, in point of fact, a 
 combination to the effect stated in the indictment were made out, 
 such conduct, in point of law, constituted an offence punishable in 
 a criminal way, notwithstanding the original imperfection of the 
 company's formation, (a) 
 
 The selling unwholesome provisions is, as we have seen, an in- 
 dictable offence ; and the following case of bartering bad and 
 unwholesome wine appears to have been treated as a conspiracy. 
 The indictment charged that the defendants, falsely and deceit- 
 fully intending to defraud Thomas Chowne of divers of his goods, 
 &c., together deceitfully bargained with him to barter, sell, and 
 exchange a certain quantity of pretended wine, as good and true 
 new Portugal wine, of him the said Fordenborough, for a certain 
 quantity of hats of him the said Chowne ; and that, upon such 
 bartering, &c., the said Fordenborough pretended to be a mer- 
 chant of London, and to trade as such in Portugal wines, when, 
 in fact, he was no such merchant, nor traded as such in -wines ; 
 and the said Mackarty, on such bartering, &c., pretended to be a 
 broker of London, when, in fact, he was not, and that the said 
 Chowne, giving credit to the said fictitious assumptions, per- 
 sonating, and deceits, did barter, sell, and exchange to Forden- 
 borough, and did deliver to Mackarty, as the broker between the 
 
 (x) Rex r. Roberts, 1 Campb. 399. 
 Lord Ellenborough, C. J. See Reg. r. 
 ^Vhitehouse, 6 Cox, C. C. 38, ;>05^ 
 
 (y) Levi v. Levi, 6 C. & P. 239. 
 (r) R. V. Lewis, 11 Cox, C. C. 404. 
 (a) Rex V. Mott, 2 C. & T. 521.
 
 CHAP, il] To Defraud. 121 
 
 said Chowiie and Fordenboroiigh, for tlie use of FordeiiLorougli, a 
 certain quantity of hats, of a certain value, for so many hogsheads 
 of the pretended new Portugal wine ; and that Mackarty and 
 Fordenborough, on such bartering, &c., affirmed that it was true 
 new Lisbon wine of Portugal, and was the wine of Fordenborough, 
 when, in fact, it was not Portugal wine, nor was it drinkable or 
 wholesome, nor did it belong to Fordenborough, to the great deceit 
 and damage of the said Chowne, and against the peace, &c. (6) It 
 is observed of this indictment, which was for a cheat at common 
 law, that though it did not charge that the defendants conspired 
 eo nomine, yet it charged that they together, &c., did the acts 
 imputed to them, which might be considered to be tantamount, (c) 
 The case was considered as one of doubt and difficulty, but it 
 seems that judgment was ultimately given for the crown, on the 
 ground that the offence was conspiracy. {(1) 
 
 A count alleged that the prisoners unlawfully did conspire by Conspiracy to 
 divers unlawful and fraudulent devices and contrivances, and by ^'^*^''** ^j^ '"^ 
 divers false pretences, unlawfully to win from A. Rhodes the sum ^ager. 
 of 2Z. lOs. of his money, and unlawfully to cheat him of the same ; 
 the prisoners and Rhodes were in a public house, and, in concert 
 with the other two prisoners, J. Dewhurst placed a pen-case on 
 the table, and left the room to get writing-paper. Whilst he was 
 absent the other prisoners, Hudson and Smith, were alone with 
 Rhodes, and Hudson took up the pen-case, and took the pen from 
 it, placing a pin in the place of it, and put the pen he had taken 
 out under the bottom of Rhodes' drinking-glass, and Hudson then 
 proposed to Rhodes to bet Dewhurst, when he returned, that there 
 was no pen in the pen-case. Rhodes was induced by Hudson 
 and Smith to stake fifty shillings in a bet with Dewhurst that 
 there was no pen in the pen-case, which money Rhodes placed on 
 the table, and Hudson snatched up to hold. The pen-case was 
 then turned up into Rhodes' hand, and another pen with the pin 
 fell into his hand, and then the prisoners took his money. It was 
 contended, on a case reserved, that this was a mere deceit not con- 
 cerning the public, and that there was no false pretence on which 
 any of the prisoners could have been convicted of obtaining money 
 by false pretences. The prosecutor intended to cheat Dewhurst, 
 and was a party to the fraud, and could not maintain this indict- 
 ment. Pollock, C. B., ' We are all of opinion that the conviction 
 is good. The expression " by false pretences " used in the count 
 is not to be construed in the technical sense contended for by tlie 
 counsel for the prisoners. We think that there was abundant 
 evidence of a conspiracy to cheat. Though it be an ingi^edient in 
 that conspiracy to induce the man who is cheated to think that 
 he is cheating some one else, that does not prevent those who use 
 that device from being amenable to punishment.' (e) 
 
 Where a woman, living in the service of her master, conspired Conspiracy to 
 
 {b) Reg. V. Mackarty, 2 Lord Raym. have been good.' Rlarklnirn, .T., 'If 
 
 1179. 2 East, P. (J. c."l8, s. 5, p. 823. jiroof wa.s given of an agreement liy 
 
 (c) 2 Kast, P. C. e. 18, s. 5, ]>. 824. fraudulent devices to obtain tlie money, 
 
 {d) 2 East, ibid. And see vol. 2, which is the substaTiee of the third 
 
 p. 519. count, is there not evidence for the jury '.' 
 
 (c) Reg. V. Hudson, Bell, C. (.'. 263. Sec the case on another point, vol. 1, 
 
 Channell, 1^., 'If the count had omitted p. 610. 
 the words "by false pretences," it would
 
 122 
 
 Holcninizo a 
 iniiri'iiigv. 
 
 Of Conspiracy. 
 
 [book v. 
 
 Consiiimcy to 
 p roc lire a 
 marriage with 
 a luiuor l>y a 
 liconau ob- 
 tjiinoil l>y a 
 falno oath. 
 
 Conspiracy to 
 seduce a young 
 woman. 
 
 with jiiiotlicr iii.'iii tliut liu .siioiild pcrsonuto her ma.stor, and intliat 
 chiuaclf r should sulcniiiize a marriage with her, which was accord- 
 iiinly (hirif, for thr |)iiri)os(j of afterwards raisiiij:^ a specious title to 
 thi' properly "'f <he master ; the gist of the indictment was for the 
 conspiracy, and the conviction was foimded on that ground. And 
 it was consid(!red in this ca.sc that, though no actual injury was 
 ])rovcd, yet it was the province of the jury to collect, from all the 
 circiunstanccs of the case, wliether there wa« not an intention to 
 do a future injury to the pcrs<jn who.se name was assumed. (/) 
 
 And a conviction has taken place upon an indictment, which 
 charged that M. A. Wrench was a person of ill-fame and bad 
 character, and a common prostitute, and that W. B. Serjeant was 
 an infant within the age of 21 years, and that M. A. W. and 
 P. D. and S. J., intending to defraud the said W. B. S. of his 
 property, conspired for the purpose aforesaid to procure a 
 marriage to be solemnized between the said W. B. S. and the 
 said M. A. W., by means of a false oath to be taken by the said 
 M. A. W., and by divers false pretences, and without the consent 
 of the mother of the said W. B. S., his father being dead, and that 
 the said M. A. W. and P. D. and S. J., in pursuance of the said 
 conspiracy, did prevail on the said W, B. S. to consent to marry 
 the said M. A. W., and by means of such persuasion, and by 
 means of a false oath taken by the said M. A. W., in order to 
 obtain a license for the solemnization of marriage between the said 
 W. B. S. and the said M. A. W., did cause the said W. B. S. to 
 marry the said M, A. W., and a marriage by such license was ac- 
 cordingly solenmized between them, without the leave of the 
 mother of the said W, B. S., who then was such infant as afore- 
 said, {g) 
 
 The seduction of a young woman may be attended with such 
 circumstances as to be indictable as a conspiracy. A case is re- 
 ported where Lord Grey and others were charged, by an infor- 
 mation at common law, with conspiring and intending the ruin of 
 the Lady Henrietta Berkeley, then a virgin unmarried, within the 
 age of eighteen years, one of the daughters of the Earl of Berke- 
 ley (she being under the custody, &c., of her father), and soliciting 
 her to desert her father, and to commit whoredom and adultery 
 with Lord Grey, who was the husband of another daughter of the 
 Earl of Berkeley, sister of the Lady Henrietta, and to live and 
 cohabit with him ; and, further, the defendants were charged, that 
 in prosecution of such conspiracy, they took away the Lady Hen- 
 rietta at night from her father's house and custody, and against 
 his will, and caused her to live and cohabit in divers secret places 
 with Lord Grey, to the ruin of the lady and to the evil example, 
 &c. The defendants were found guilty, though there was no 
 proof of any force, but, on the contrary, it appeared that the lady, 
 who was herself examined as a witness, was desirous of leaving 
 her father's house, and concurred in all the measures taken for her 
 departure and subsequent concealment. It was not shown that 
 
 (/) Rex V. Taylor, 1 Leacli, 37. 2 
 Kast, r. C. c. 20. s. 6, p. 1010. See 
 Wade ('. Broughton, 3 Ves. & B. 172, 
 that persons conspiimg to procure the 
 marri.ige of a female for the sake of her 
 
 foi-tuuc may be indicted for a con- 
 spiracy. 
 
 (g) Kex V. Serjeant, R. & M. N. P. E. 
 352.
 
 CHAP. II.] 
 
 To Seduce a Female. 
 
 123 
 
 any artifice was used to prevail ou her to leave her father's house ; 
 but the case was put upon the ground that there was a solicitation 
 and enticement of her to unlawful lust by Lord Grey, who was 
 the principal person concerned, the others being his servants, or 
 persons acting by his command, and under his control. (Ji) 
 
 A count charged that the prisoners did between themselves con- 
 spire, combine, confederate, and agree together knowingly and de- 
 signedly to procure, by false representations, false pretences, and 
 other fraudulent means, J. C, a poor child, under the age of 
 twenty-one years, to wit, of the age of fifteen years, to have illicit 
 carnal connection with a man whose name is to the j urors unknown, 
 and, upon a case reserved, the judges were unanimously of opinion 
 that this count charged an indictable offence at common law. (i) 
 
 A count alleged that the prisoners unlawfully consi^ired, &c., to 
 solicit, persuade and procui'e, and in j)ursuance of the said con- 
 spiracy did unlawfully solicit, incite, and endeavour to procure 
 L. M., an unmarried girl, within the age of eighteen years, to be- 
 come and be a common prostitute, and to commit whoredom and 
 fornication for lucre and gain with men ; and it was urged, in 
 arrest of judgment, that the count was bad, as it did not aver that 
 the girl was chaste ; the fact of a loose woman committing forni- 
 cation was not punishable by law ; but it was held that the count 
 was good, as it charged a conspiracy to bring about an illegal con- 
 dition of things, [j) 
 
 An indictment has been held to lie against several persons for 
 conspiring to carry away a young female under the age of twenty- 
 one from the custody of her parents and instructors, and after- 
 wards to marry her to one of the offenders, contrary to the 
 provisions of the 4 & 5 Ph. & M. c. 8, ss. 3 & 4, and also for 
 conspiring to commit the capital felony (under the 3 Hen. 7, c. 2, 
 s. 1) of taking away an heiress against her will, and afterwards 
 marrying her to one of the defendants. The young lady, who 
 was the heiress of a gentleman of large fortune, and was only 
 fifteen years of age, had been placed under the care of some ladies 
 at Liverpool, for the purpose of finishing her education, and was 
 induced to leave their house by means of a fictitious letter, fabri- 
 cated by the defendants, who conveyed her to Gretna Green, 
 where she was induced by means of false representations to go 
 through the ceremony of a Scotch marriage, and to consent to be- 
 come the wife of one of the defendants : and the defendants were 
 convicted, (Ic) 
 
 A case is reported where several persons were convicted ou an 
 indictment which charged them with conspiring to impoverish 
 one H. B., a tailor, and to prevent him, by indirect means, from 
 
 A conspiracy 
 to procure a 
 girl to have 
 illicit con- 
 nection with 
 
 Conspiracy to 
 carry away 
 and marry a 
 female under 
 the age of 
 twenty-one, 
 without the 
 consent of her 
 parents. 
 
 Conspiracy to 
 impoverish a 
 man in his 
 tiwdc. 
 
 (h) Rex V. Lord Grey, 3 St. Tri. 519. 
 1 East, P. C. c. 11, s. 10, p. 460. See also 
 llc.x V. Dclaval, 3 Burr. 1434. 
 
 (/) KcK- V. Mcars, 2 Den. ('. C". 79. 
 The indictment also contained two 
 counts framed to cluirgo an atteni])t to 
 commit the oU'ence created by tlio 12 & 13 
 Vict. c. 76 ; but no opinion was ex- 
 pressed as to these counts. Sec vol. 1, 
 p. 877. 
 
 0') Reg. V. Howell, 4 F. & F. 160, 
 
 Bramwell, B., and the Recorder. 
 
 {!:) Rc.x I'. Wakefichl, 2 Lew. 1. The 
 raarriaf^e bcinj^ in Scotland, an indict- 
 ment for felony under the 3 Hen. 7, c. 2, 
 s. 1, could not have been supported, ami 
 there was no evidence to supj.ort an in- 
 dictment under the 4 & Ph. & M. c. 8, 
 s. 4. Sec vol. 1, p. 885. An indictment 
 was preferred upon llio 4 & 5 I'll. & 
 M. c. 8, s. 3, but no judj^meut given 
 ui)on it.
 
 124 
 
 ConNpinv'y 
 to cheat 
 croilitors. 
 
 Itiinknrx i>ul)- 
 lisliiiij; fiil.so 
 Itiilanec hIicuLm. 
 
 Cons]>imry to 
 cheat liy fjil"<c 
 HtatonuMits of 
 tho profits of 
 a triulo. 
 
 An iivlictmcnt 
 Wivs oiuc lioM 
 not to lie for 
 coiisjiiriii}; to 
 commit a civil 
 trespass. 
 
 Of Conspiracy. 
 
 [book v. 
 
 But this case 
 is overruled. 
 
 An imlii-lmcnt 
 will lie for a 
 r msiiiraoy to 
 
 rnrryinf? on liis trade. {I) Tlii.s, liowcvcr, appears to liave Leen 
 coiisidrrcd i\n a con.^piracy in re.straint of trade, and so far a con- 
 .spiracy to do an unlawful act affecting tlic ])iiljlic. (m) 
 
 Jf traders consj)ire to defeat their ciedit(jrs hy disposing of tlieir 
 goods in contemplation of h.iidvruptey, they are guilty of a con- 
 .spiraey at common law. {n) 
 
 So if hankers coml)inc to deceive nnd dil'iaiul llieir shareholders 
 hy pulilishing false balance sheets, they are indictable for a con- 
 spiracy, (o) 
 
 Where the prisoners were indicted for a conspiracy to cheat one 
 Edwards, and the case was that the prisoners had made false repre- 
 sentations as to the amount of profits of a business carried on by 
 one of them, and thereby induced Edwards to enter into partner- 
 ship with one of them ; it was held, that they were liable to be 
 indicted for the conspiracy, although no action might lie for the 
 false representation, as it was not in writing, so as to satisfy the 
 J) Geo. 4, c. 14, s. 16. (p) 
 
 An indictment will not lie for conspiring to commit a civil tres- 
 pass upon property, by agreeing to go, and by going into, a pre- 
 serve for hares, the property of another, for the pui-pose of snaring 
 them, though it be alleged to be done in tlie night-time, and that 
 the defendants were armed with offensive w^eapons, for the purpose 
 of opposing resistance to any endeavours to apprehend or obstruct 
 them. And Lord Ellenborough, C. J., in pronouncing the judg- 
 ment of the court, said, ' I should be sorry that the cases in con- 
 spiracy against individuals, which have gone far enough, should be 
 pushed still farther. I should be sorry to have it doubted whether 
 persons agreeing to go and sport upon another's ground, in other 
 words, to commit a civil trespass, .should be thereby in peril of an 
 indictment for an offence which would subject them to infamous 
 punishment.' (f/) It may be observed that it was not stated in the 
 indictment that the weapons were (langcroiis, nor that the defend- 
 ants conspired to go, &c., with strong hand. 
 
 But this case is overruled by Reg. v. Mou'lands, (r) where Lord 
 Campbell, C. J., said, ' I have no doubt whatever that it was 
 Avrongly decided. Going into the prosecutor's close against his will, 
 armed with offensive weapons for the purpose of opposing any 
 persons who should endeavour to apprehend, obstruct, or prevent 
 them, would in itself be an indictable offence ; and conspiring to 
 commit such an offence must be an indictable conspiracy.' 
 
 It is now settled that persons may be guilty of a conspiracy to 
 defraud another in the fraudulent sale of a horse. Thus where the 
 
 (7) Ecx V. Eci-les, 1 Leach, 274. 
 
 (>n) Uy Lord Ellenborougli, C. J., in 
 Ecx r. Tumor, 13 East, 228. See ^kt 
 Lunl t'aniplicll, C. J., Keg. v. Rowlands, 
 17 Q. B. 671. 
 
 [n) Keg. r. Hall, 1 F. & F. 3^, AVat- 
 son, B. 
 
 (o) Reg. r. Esdaile, 1 F. & F. 213. 
 
 ( ;)) Reg. r. Tiraotlij', 1 F. & F. 39, 
 Channel!, B. 
 
 {q) Kex V. Turner, 13 East, 228, 231. 
 But qii. as to that which is reported in 
 this ca.sc (p. 230) to have been said by- 
 Lord Ellenborough in the course of the 
 
 argument, viz. that ' all the cases in con- 
 s)>iracy iirocecd upon the ground that the 
 object of the combination is to he cfTectcd 
 by some falsity.' Tho facts stated in this 
 case would constitute an otl'ence within 
 the 9 Geo. 4, c. 69, vol. 1, p. 621, 
 and it is conceived that a conspiracy to 
 commit an olTence within that statute 
 would be indictable, although not carried 
 into effect. See Kex v. Wakelield, suprrr. 
 See also the observations on this case in 
 Deac. Game L. 175. C. S. G. 
 (r) 17 Q. B. 671.
 
 CHAP. 
 
 11.] 
 
 To Defraud on a Sale. 
 
 ]25 
 
 defendants conspired to make a false representation that horses cheat in the 
 were the property of a private person and not of a horse dealer, ^^^^ °^ ^ 
 and were quiet to ride and drive, and thereby induced a gentleman 
 to buy them at a large price, they were held to have been rightly 
 convicted on a count which charged them with conspiring by 
 false pretences and subtle means to cheat the gentleman of his 
 money, (.s) 
 
 An indictment against Brown and Carlisle for conspiracy alleged A conspiracy 
 that one Sibson sold to Brown a mare for 89/., and that the pri- p^^t^of'^Ji^/^ 
 soners, whilst the said sum was unpaid, conspired by false and ],rice of a 
 fraudulent representations that the said mare was unsound of her I'orse by 
 wind, and that she had been examined by a veterinary surgeon, who t'gjjjing^that 
 had pronounced her a roarer, and that Brown had sold her for 27^. it was un- 
 to induce Sibson to receive a much less sum in payment for the sound, 
 said mare than Brown had agreed to pay Sibson for the same, and 
 thereby to cheat Sibson of a large part of the said sum agreed to 
 be paid for the said mare. The mare had been sold by Sibson to 
 Brown for the price as alleged, and Sibson had agreed to trust 
 Brown for the price till after a fair. The prisoners afterwards con- 
 spired to send a false account of the mare to Sibson, and thereby 
 to get him to forego part of the agreed price ; and, in pursuance of 
 this conspiracy, they sent a letter to Sibson, stating that the mare 
 was unsound of her wind and had been examined by a veterinary 
 surgeon, and he had pronounced her a roarer. In consequence of 
 this letter Sibson saw Carlisle, who stated that he had examined 
 the mare and that she was unsound, which he knew to be false. 
 Sibson afterwards saw Brown, who told him that he had sold the 
 mare for 111. only (which was false), and persuaded him to receive 
 that sum in satisfaction of his claim, but no receipt or other dis- 
 charge was given. It was contended that no indictable offence had 
 been proved or charged ; for that the facts proved and alleged did 
 not and could not alter the position of Sibson, as the payment of a 
 smaller sum was no satisfaction of the larger sunn, for which he had 
 sold the mare, and he might afterwards enforce the payment of the 
 residue. But, upon a case reserved, it was held that the indict- 
 ment was sustainable, and that the facts given in evidence did 
 sustain it. The substance of the charge is that the prisoners con- 
 spired to use unlawful means, namely, false representations, to 
 induce the prosecutor to forego a part of his claim ; and there is 
 no force in the argument that, because the prisoners did not by 
 means of their false representations alter the right of the prosecu- 
 tor to his full claim, the indictment is not sustainal)le ; since in no 
 case where a change is made in the possession of a chattel through 
 a fraud is the property altered. It is not necessary that the fraud 
 should be successful. The offence here charged and proved comes 
 within the legal definition of a conspiracy, {t) 
 
 An indictment cannot be supported for a conspiracy to deprive An indictment 
 a man of the office of secretary to an illegal unincorporated trading ^".'' ""l,'^. ,''' 
 company. Lord Ellcnborough, C. J., said that the society being aepiive a mau 
 certainly illegal, to deprive an individual of an office in it could of the oftice 
 not be treated as an iniury : and that when the prosecutor was °!!!r;nlTi 
 
 to an illegal 
 
 (s) Keg. V. Kenrick, 5 Q. B. 49. 
 this case, ante, vol. 2, ^. 557. 
 
 See (0 I? eg. v. Carlisle, Dears. C. C. 337 ; 
 
 Eeg. V. Kcad, 6 Co.x, C. C". lU.
 
 126 
 
 trading com- 
 pany. 
 
 ConHpirftry to 
 Rink a furcigii 
 nil! p. 
 
 Of Conspiracy. 
 
 [book v. 
 
 Conspiracy liy 
 one partner 
 to defraud 
 another. 
 
 Coniidaint that 
 members of 
 House of Lords 
 liad conspired 
 to deceive the 
 House. 
 
 socrctary to tlio society, instead of having an interest wliicli the 
 Uiw would i)n)tect, ho was guilty of a crime, (u) 
 
 Tlic ])risoner, a foreigner, wa.s indicted for conspiring at Jlarns- 
 gate with the owner, tlic master, and the mate of a ship, to cast 
 away the ship, with intent to prejudice the underwriters. The ship 
 was a I'russian merchant vessel, named tlic Alma, and arrived at 
 llanisf'atc, and afterwards .sailed thence, and .she was in .six day.s' 
 time scuttled and sunk by the prisoner and others. The prisoner 
 was apprehended, and made statements implicating himself, tlie 
 c.-iptain, and the mate. He said that the mate had said in Rams- 
 gate that the ship would never reacli her place of destination, and 
 spoke of the making away of the ship in an unlawful manner ; and 
 when the prisoner said, ' Then we had better sink her here at once 
 o\\ the bar,' the mate replied that was too clo.se to land to make 
 away with the ship in an unlawful manner, or to sink her. 
 Martin, B., told the jury, 'The ship was a foreign ship, and .she 
 was sunk by foreigners far from the English coast, and so out of 
 the jurisdiction of our courts. But the con.spiracy in this country 
 to commit the offence is criminal by our law. And this ca.se does 
 not raise the point which arose in Reg. v. Bernard, 1 F. tl- F. 240, 
 as to a conspiracy limited to a criminal ofifence to be committed 
 abroad. For here, if the prisoner was party to the conspiracy at 
 all, it was not so limited ; for it was clearly contemplated tliat the 
 ship might be destroyed off the bar at Ramsgate, which Avould be 
 within the jurisdiction. The offence of conspiracy would be com- 
 mitted by any persons conspiring together to commit an unlawful 
 act to the prejudice or injury of others, if the conspiracy was in 
 this country, although the overt acts were abroad. . . . The 
 question is, was it agreed by and between the prisoner and any 
 other person at Ramsgate that the ship should be destroyed, 
 whether at sea or in port V (v) 
 
 A partnership, consisting of the prisoner and L. carried on busi- 
 ness abroad. The prisoner gave notice under the articles of part- 
 nership to dissolve the partnership. An account of the partnership 
 property had to be taken on the dissolution, and upon such account, 
 after payment of partnership liabilities, the partnership assets were 
 to be divided between the prisoner and L. The prisoner agreed 
 with W. and P. to forge documents, and to make false entries in 
 the partnership books and accounts, so as to make it appear that 
 debts existed and were owing which did not exist, so as to reduce 
 the amount devisable between the partners on the dissolution, with 
 intent to cheat and defraud L. Held, that the prisoner was rightly 
 convicted of conspiring with W. and P. to defraud L. (?'.") 
 
 Where complaint was made before a magistrate that certain 
 members of the House of Lords had conspired to deceive the 
 House by stating that a charge of falsehood contained in a petition 
 presented to the House was false, though they knew it to be true, 
 in order to prevent the prayer of the petition from being granted, 
 to the injury of the petitioner : — Held, that the complaint did not 
 charge an indictable oftence, as an agi-eement by members of either 
 
 (») Eex V. Stvntton, cor. Lord Ellen- 
 borough, C. J., 1 Campl). 54i^, in the 
 notes. See Reg. v. Hunt, 8 C. & P. 6i2, 
 vol. 2, p. 366. 
 
 (i) Ecg. 1-. Kohn, 4F. &F. 68. 
 
 (,u-) E. r. AVarburton, 40 L. J. II. C.
 
 CHAP. II.] 
 
 Proceedings in. 
 
 127 
 
 House to make defamatory speeches there could not be the subject 
 of an indictment, {x) 
 
 The Trade Union Act, 1871, and the Act amending the law of 
 conspiracy in trade disputes are noticed 'post, p. 159. 
 
 We have seen that from the nature of conspiracy it is an offence 
 which cannot be charged as having been committed by one person 
 only, {y) And upon this ground it has been holden that no prose- 
 cution for a conspiracy can be maintained against a husband and 
 wife only, because they are esteemed but one person in law, and 
 presumed to have but one will, {z) But husband, wife, and 
 another may be convicted of a conspiracy, (a) So if all the de- 
 fendants who are prosecuted for a conspiracy be acquitted but one, 
 and the conspiracy be not stated as having been had with persons 
 unknown, the acquittal of the rest is the acquittal of that one 
 also. (6) But if two persons be indicted for a conspiracy, and one 
 only of them appear and take his trial, he may be found guilty, 
 though the other defendant be absent, and has not pleaded ; (c) 
 and this, although the other conspirator named in the indictment 
 was dead before the indictment was preferred, {d) or after pleading 
 not guilty, (e) 
 
 All the counts of an indictment alleged that Thompson, Tillot- 
 son, and Maddock conspired, &c., ' with divers other persons to the 
 jurors aforesaid unknown ; ' the jury stated their opinion, upon the 
 evidence, to be that Thompson had conspired with either Tillotson 
 or Maddock, but that they did not know with which. No evidence 
 was given of participation by any other party ; and thereon the 
 judge directed a verdict of not guilty, as to Tillotson and Maddock, 
 and a verdict of guilty as to Thompson ; and it was Jield that as 
 Tillotson and Maddock had been acquitted, the verdict could not 
 be supported against Thompson. (/) 
 
 Comliinations 
 amongst 
 journeymen, 
 workmen, &c. 
 
 More tlian 
 one person 
 must bare 
 conspired. 
 
 A verdict 
 finding two 
 not giiilty and 
 that the third 
 conspired with 
 one of the 
 others, but 
 with which 
 the jury could 
 not say. 
 
 (.«) Ex parte, Wason, 38 L. J. Q. B. 
 302. 
 
 {y) Ante, p. 109. 
 
 (s) 1 Hawk. P. C. c. 72, s. 8. 
 
 {a) Keg. V. Whitehouse, 6 Cox, C. C. 
 38, Piatt, B. 
 
 {/>) 1 Hawk. P. C. c. 72, s. 8. 3 Chit. 
 Crim. L, 1141. 
 
 (c) Kex V. Kinnersley, 1 Str. 193. 
 
 {d) Rexr. Nicholls, 2 Str. 1227. But 
 see the case better reported in 13 East, 
 412, in the notes. 
 
 (c) Keg. V. Kenrick, 5 Q. B. 49. 
 
 (/) Reg. V. Thompson, 1(3 Q. B. 832. 
 Erie, J,, dissentknte. Lord Campbell, 
 C. J., IMteson, J., and Coleridge, J,, 
 rested the decision on the ground that 
 ' other ]wrsons ' must mean i)crsons other 
 than Tillotson and Maddock ; and 
 that the acquittal of those defendants, 
 therefore, must have the same elfect as 
 if Thompson, Tillotson, and Maddock 
 had alone been charged with tlie con- 
 spiracy ; in which case it was clear 
 Thompson must have been ac(iuitted : 
 and Patteson, J., said, ' I cannot sec how 
 Thompson can be convicted of conspiring 
 with persons unknown ; upon the evi- 
 dence he conspired, if at all, with Tillot- 
 son or Maddock.' Eric, J., was of opi- 
 nion that, 'according to the rules of 
 
 pleading, this charge, as to each indi- 
 vidual, must be construed as if he were 
 charged solely, and it follows that the 
 acquittal of the two becomes immaterial ; 
 and the verdict may be found in any 
 terms comprised in the indictment. The 
 finding may be that Thompson conspired 
 with Tillotson, or with I\Iaddock, or with 
 other persons unknowTi ; and so there 
 may be similar findings as to the others. 
 Therefore if any one be found guilty, the 
 verdict must stand as against him ; the 
 judge must take the opinion of tlie juiy 
 as to each, whatever be the finding as to 
 the others. "Are you of opinion that 
 Thomj)son conspired with Tillotson ? " 
 "No." "With Maddock?" "No. But 
 we are satisfied that he conspired with 
 some one ; we do not know whom." 
 Tlie conspiracy, then, cannot be truly 
 predicated of either Tillotson or Mad- 
 dock, because tlie jury do not know whicli 
 of these two was tlie conspirator ; they 
 do, however, know that one of tlum was; 
 so that against Thompson, the verdict 
 should be that he conspired with some 
 one, it is not known with whom.' This 
 dciision deserves reconsideration. It is a 
 fallacy to suppose that the expression 'a 
 person to the jurors unknown,' means a 
 person absolutely unknown : it merely
 
 128 
 
 JiulKincnt 
 ]iiu(Metl on one 
 «luf(rn<liiiit 
 lioforc tlio 
 trial of Hii- 
 othcr <lo- 
 fcnilaiit. 
 
 Of Conspiracy. 
 
 [book v. 
 
 Wliorc to fill iiKlictinciit :i<raiiist lour for a conspiracy, two 
 iilcadc'd iioi f,^iiilty ; one jjlcadcd in abatement, towliich plea tliere 
 was a (Icniiirrcr ; and the lotirtli never appeared; and before the 
 argument of thi; demurrer the record was taken down for trial, 
 and t)iM,' of the defendants who had pleaded n(jt guilty acquitted, 
 and the other found guilty of conspiracy with him who had pleaded 
 in al)atement ; and the demurrer was afterwards argued, and judg- 
 ment of respondeat ouster j^iven, whereupon a plea of not guilty 
 was pleiuied ; the Court of King's Bench held that judgment might 
 he pronounced upon the one that had been found guilty before 
 the trial of the other defentlant ; for although it was possible that 
 such defendant might be accpiitted, yet the court were not war- 
 ranted in coming to the conclusion that that would be so against 
 the verdict that had been found, or in forljearing to pronounce 
 judgment upon the defendant who had been found guilty, {(j) So 
 
 moans any person wliosc identity is not 
 sudlcicntly proved to tlio satisfaction of 
 tlie jury ;"and it cannot be doubted that 
 it' f lionijison had l)een ( luni^ed with eoii- 
 spiiiny with a person to the jurors un- 
 known, a verdict of guilty ought to have 
 been entered on tliis finding of the jury. 
 Suppose a count for stealing the coat of 
 A., another the coat of C, and a third of 
 a person unknown, the jury find that the 
 coat belongs to A. or B., but they cannot 
 say which, this is a verdict of guilty on 
 the third count. This indictment was in 
 the form which has been in use for ages 
 in conspiracy and riot, and was originally 
 introduced, and has always been used, for 
 the very purpose of avoiding an acquittal 
 where the evidence might fail to satisfy 
 the jury that any of the persons named 
 were parties to the otlence. In Kex v. 
 Sudbury, 1 Lord Raym. 484, where two 
 out of four ]K'rsons charged with a riot 
 had been acquitted. Lord Holt, C. J., said, 
 ' If the indictment had been that the de- 
 fi-udants, with divers other disturbers of 
 the peace, kv., had committed this riot 
 and battery, and the verdict had been as 
 in this case, the King might have had 
 judgment.' In Rex i'. Kinnersley, 1 Str. 
 193, at p. 19.5, Reg. r. Heme is cited. 
 There the indictment alleged that Heme 
 with A., ct muUis aliis, did conspire to 
 accuse a man of an otlence ; the grand 
 jury ignored the bill as to A., but found 
 it as to Heme, who was convicted ; and 
 it was moved iu arrest of judgment, that 
 there being an ignoramus a.s to A., Herne 
 could not be giulty of conspiring with 
 him ; but the whole court held that it was 
 sulficicnt, it being found that he, cinn 
 ytiiltis aliis, did conspire, and that it 
 might have been laid so at fii-st. See also 
 Rex V. Scott, 3 Burr. R. 1262. It is quite 
 nn error to .suppose that the word 'other,' 
 as u.sfd in indictments, means ' diflcrent 
 from.' It is a mere word of form, used 
 like 'further' and 'afterwards.' See 
 Reg. V. Downing, 1 Den. C. C. 52. If 
 the indictment had contained three 
 counts, the first alleging a conspiracj- 
 between Thompson and Tillotsou, the 
 
 .second between Thompson and Maddock, 
 and tlie third between Thompson ami 
 divers otlier persons to the jurors un- 
 known, and the facts had lieen as in this 
 case, the verdict must have been not 
 guilty on the first two counts, and guilty 
 on the third ; and yet each count in this 
 indictment was in point of law exactly 
 the same as such three counts. 
 
 The authorities seem to show, that if 
 several persons are indicted for a riot or 
 a conspiracy, and the jury acquit all ex- 
 cept two in riot and one in conspiracy, 
 the latter must also be acquitted. It is 
 very confidently submitted that these 
 authorities rest on a fallacy, viz. that 
 because' some are acquitted, therefore 
 the others could not have been guilty of 
 tlie olfence together with those that are 
 acquitted. The acquittal of A. neces- 
 sarily amounts to no more than that A. 
 was not proved to be guilty. Suppose A. 
 and B. are indicted for a conspiracy, and 
 A. has made a written confession that he 
 did conspire with B. , and B. with him, 
 but the evidence fails as against B., is A. 
 to be acquitted ? Suppose, in such a 
 ca.se, A. had jdeaded guilty, is his plea 
 to be set aside because B. for want of 
 evidence is acquitted ? This shows that 
 in fact one may be guilty, though the 
 rest are acquitted, and that the doctrine 
 in ([uestion rests on an entire fallac}'. 
 Again, it is conceived that a still more 
 fatal objection to the doctrine exists. It 
 is apprehended that the acquittal of B. 
 can iu no case be admis-sible in evidence 
 for A. It is obvious that the conviction 
 of A. would not be evidence ag-aiust B. 
 And the rule is, that ' no record of a 
 conviction or verdict can be given in evi- 
 dence, but such whereof the benefit may 
 be mutual.' Rex v. The Waiden of the 
 Fleet, Holt, 133 ; and see other cases, 
 2 Phill. Evid. c. 1, s. 1. C. S. G. 
 
 (;/) Rex V. Cooke, 5 B. & 0. 533. 7 D. 
 & R. 673. Littledale, J., said, 'If the 
 other defendant shall hereafter be ac- 
 quitted, perhaps this judgment may be 
 reversed.' Sed quccrc for such acquittal 
 would not ncccssarihj sliow that the ver-
 
 CHAP. II.] 
 
 Indictme^it. 
 
 129 
 
 Avhero three prisoners were indicted in Ireland for the capital offence 
 of conspiring to murder, and, having refused to join in their chal- 
 lenges, one of them was tried alone and convicted ; it was held, on a 
 case reserved, that he had been properly tried and convicted, and that 
 there was no ground for respiting or arresting the judgment. (Ji) 
 
 With respect to the statement of the charge in the indictment 
 it may be observed, that though it is usual to state the conspiracy, 
 and then show that in pursuance of it certain overt acts were done, 
 it is sufficient to state the conspiring alone, (i) And it is not 
 necessary to state the means by which the object was to be 
 effected, as the conspiracy maybe complete before the means to be 
 used are taken into consideratiou. Therefore an indictment for 
 conspiring by divers false pretences and subtle means and devices 
 to get money from J. S., and cheat him thereof, is not objection- 
 able on the ground that it is too general, or does not sufficiently 
 show the corpus delicti, or specify any overt act. {j) So a count 
 alleging that the defendants ' unlawfully, fraudulently, and deceit- 
 fully did combine, conspire, confederate, and agree together by 
 divers false pretences and subtle means and devices to obtain and 
 acquire to themselves from one G. W. F. divers large sums of 
 money of tlie monies of the said G. W. F., and to cheat and defraud 
 him thereof,' has been held good, {k) So where a count alleged 
 that the defendants unlawfully, falsely, fraudulently, and deceit- 
 fully did conspire, combine, confederate, and agree together, by 
 divers false pretences and indirect means, to cheat and defraud the 
 prosecutor of his monies, the Court of Queen's Bench held that 
 this count was good, on the authority of Rex v. Gill, (I) which was 
 founded on excellent reason, {m) So where a count alleged that 
 the defendants ' unlawfully, fraudulently, and deceitfully did con- 
 spire, combine, confederate, and agree together to cheat and de- 
 fraud' the prosecutor 'of his goods and chattels;' upon error in 
 the Exchequer Chamber it was held that this case was not distin- 
 guishable from Rex v. Gill, (ii) and that the count was good, (o) 
 But this is only the case where the conspiracy is to commit some 
 offence, and if it be not to commit some offence, the indictment 
 must show some illegal act done in pursuance of the conspiracy, 
 or it is insufficient, (p) 
 
 A count alleged that C. C. died possessed of certain East India 
 stock, and that the defendants conspired, &c., by divers false, 
 fraudulent, and unlawful ways, means, and contrivances, and by 
 false pretences and false swearing, unlawfully, kc, to obtain the 
 means and power to and for S. P. of transferring and disposing of 
 the said stock ; and that in pursuance of the said con.spiracy the 
 defendants afterwards caused a certain false deposition, purporting 
 to have been made on oath by S. P. as one of the lawful children 
 
 diet of guilty on the fornior trial was 
 wrong, as witnesses might he dead or 
 absent who were examined on the former 
 tiial, or the one defendant miglit have 
 been convicted on his own I'onfession, 
 which woukl not be admissible against 
 the other defendant. C. S. G. 
 
 (/() Keg. V. Ahearne, 6 Cox, 6. 
 
 {i) Reg. V. Best, 2 Lord llayin. 1167. 
 1 Salk. 174. 3 Chit. Crini. L. 1143. The 
 Poulterers' Case, 9 Rep, 55. Rex v. 
 vol. III. 
 
 Kiniberty, 1 Lev. 62. Rex r. Stciling, 1 
 Lev. 125. 
 
 (j) Rex V. Gill, 2 B. & A. 204. See 
 note {x), post, p. 131. 
 
 {k) Reg. V. Kenrick, 5 Q. B. 49. 
 
 (/) Supra. 
 
 \m) Reg. V. Gompertz, !) Q. B. 824. 
 
 in) Supra. 
 
 (o) Sydserffi'. Reg. 11 Q. B. 245. 
 
 {p) Rex V. Seward, 1 A. & E. 706. 
 
 Where it is 
 sufficient to 
 state the 
 conspiring. 
 
 Gill's case. 
 
 Kenrick's case. 
 
 Gompertz's 
 case. 
 
 Sydserff's case. 
 
 Where the 
 overt acts 
 must bo 
 stated. 
 
 A conspiracy 
 to obtain the 
 means and 
 power of 
 transferring 
 stock.
 
 I ; J ( ) Of Cons'p'iracij. \ iiooK v. 
 
 of Iho .said (". C, wlif-rciu S. P. falsfly stated tliat tlie widow of 
 tho said S. P. dic(l without having taken upon lier letters of adiiii- 
 iiistnitinii of liis ^^oods, to bo exhibited in tlio Prerogative Court of 
 Canterbury ; and did then fraudulently procure letters of adminis- 
 tration to be issued of the goods of C. C. to S. P., as one of the law- 
 ful children of C. C. After alleging two otber overt acts of a 
 similar kind, the count alleged that the defendants presented sucli 
 letters of administration to the East India Company, and did, by 
 such false ways, (fcc, false pretences and I'alse swearing, fraudu- 
 lently obtain the means and power to and for S. P. of transfer- 
 ring and disposing of the stock ; and that S. P. did transfer and 
 dispose of the said stock, &c., with intent to]defraud the widow of 
 C. C. It was objected, 1st, that the conspiracy as alleged did not 
 amount to any offence, as no legal meaning could be ascribed 
 to obtaining * the means and power ' of doing an act. :2nd, that 
 the person intended to be defrauded ought to have been shown 
 with more certainty. 3rd, that it ought to have been stated to 
 whom the stock belonged. But the court held that the statement 
 of the means used for effecting the object of the conspiracy were so 
 interwoven with the charge of conspiracy as to show on the face of 
 the count an unlawful conspiracy. But if that were not so, the 
 overt acts showed an indictable misdemeanor, {q) 
 Indictment It need not be averred in the indictment that the prosecutor 
 
 aUeKeThat the ^^^'^^ innocent of the crime imputed to him by the conspirators, {r) 
 prosecutor is And in a case of a conspiracy to charge a person with being the 
 innocent. father of a bastard child, it was holden not to be necessary to aver 
 
 that the prosecutor was not the father, especially when the words 
 of the indictment were ' did falsely conspire falsely to charge, &c. ;' 
 the principle being that innocence must be intended till the con- 
 trary appears, {s) And it should seem that even without those 
 words the indictment would be sufficient, and need not state that 
 the chai-ge was false, nor that the child was likely to become 
 chargeable, &c. {t) And an indictment for a conspiracy was 
 holden to be good, although it was not alleged in the cliarge itself 
 that the defendants conspired falsely to indict the prosecutor, and 
 although it did not appear of what ixivticular crime or o fence they 
 conspired to indict him, but only in general that the defendants 
 did wickedly and maliciously conspire to indict and prosecute the 
 prosecutor for a crime or offence liable to be capitally punished by 
 the laws of this kingdom, (u) The conspiracy is the gist of the 
 charge alleged in such an indictment. 
 
 (q) "Wright r. lieg. 14 Q. 15. 148. This to obtain and get into their possession 
 
 jiulgnu-nt was atlirmed on error, ibid. of and from one S. B. divei-s hirge sums 
 
 180, on the autliority of SydserlF v. Eeg. of money with intent to defraud S. B. 
 
 supm. The indictment contained several Tlie Court of Queen's Bench arrested the 
 
 other counts, varying the intent to de- judgment on these counts, 
 
 fraud, and omitting some of the overt (r) Kex v. Kinnersley, 1 Str. 193. 
 
 acts. The seventh count alleged that (s) l\exi'. Best, 1 Salk. 174. 2 Lord 
 
 H. }k[. C. was entitled to the stock, and Kayni. 1167. 
 
 that thedefendants conspired by false, &c., (t) 2 Lord Rayni. 1167. 
 
 and unlawful ways ainl means, and by (») Rex r. Spragg, 2 Burr. 993. In 
 
 false pretences unlawfully to obtain the Eeg. r. King, 7 Q."B. 782. Tindal, C. J., 
 
 means and power to and for S. P. of said of this case, ' The point decided in 
 
 transferring and disposing of the said that oa.sp appeai-s to have been merely 
 
 stock. The eleventh count stated that this, that, in an indictment for a con- 
 
 thc defendants unlawfully conspired by spiracy, tliough the conspiraev be insuffi- 
 
 false. &c., and unlawfulprctence.s, &<•,, ciently charged, ycl if the rest of the
 
 CHAP. 
 
 11.] 
 
 Indictment. 
 
 Where the defendants Avere indicted for conspiring to pervert 
 the course of justice by producing in evidence a false certificate of 
 a justice of peace, it was holden not to be necessary to set forth in 
 the indictment that the defendants knew at the time of the con- 
 spiracy that the contents of the certificate were false, on the ground 
 that if persons with intent to obstruct the course of justice con- 
 spire to state a fact at all events as true, which they do not know 
 to be true, it is criminal ; and that the defendants were bound to 
 have known that the fact was true which they agreed to certify as 
 sucli. (v) 
 
 Where the act is in itself illegal, it is not necessary to state the 
 means by which the conspiracy was effected. Thus where the in- 
 dictment charged that the defendants conspired together by in- 
 direct means to prevent one H. B. from exercising the trade"^ of a 
 tailor, and it was contended that it should have stated the fact on 
 which the conspiracy was founded, the means used for the purpose ; 
 Lord Mansfield, C. J., said, ' The conspiracy is stated and its object; 
 it is not necessary that any means should be stated ; ' and Buller, 
 J., said, ' If there be any objection it is that the indictment states 
 too much ; it would have been good certainly if it had not added 
 "by indirect means," and that will not make it bad.' {vj) And 
 where the indictment charged that the defendants conspired, by 
 divers false pretences and subtle means and devices to obtain from 
 A. divers large sums of money, and to cheat and defraud him 
 thereof; it was holden that the gist of the offence being the 
 conspiracy, it was quite sufticient only to state that fact, and its 
 object, and not necessary to set out the specific pretences. Bayley, 
 J., said, that when parties had once agreed to cheat a particular 
 person of his monies, although they might not then have fixed on 
 any means for that purpose, the offence of conspiracy was com- 
 plete, {x) But where the act only becomes illegal from the means 
 used to effect it, the illegality of it should be explained by proper 
 statements, as in the cases which have been cited of conspiracies 
 to marry paupers. (?/) 
 
 Where an indictment charged the defendants with conspiring 'to 
 defraud J. W. of divers goods, and in pursuance of that conspiracy 
 defrauding him of divers goods, to wit, of the value of 100^. ; ' the 
 Court of King's Bench refused to quash the indictment on motion ; 
 for although if this had been an indictment for stealing the prose- 
 cutor's goods, it would have been bad for uncertainty, yet in this 
 
 131 
 
 Not necessary 
 to state that 
 the defendants 
 knew, &c. 
 
 Not necessary 
 to state the 
 means by 
 which the 
 conspiracy 
 was effected, 
 where the 
 thing intended 
 is illegal. 
 Svcus, where 
 it is legal. 
 
 Conspiring to 
 defraud J. W. 
 of divers 
 goods. 
 
 indictment contains a good charge of a 
 niisdiiaeanor, tlie indictment is good. 
 Lord Mauslield distinguishes between the 
 allegation of the une.vceutod conspiracy 
 to prefer an indictment, as to the sulii- 
 ciency of which he gave no opinion, and 
 tliat of the actual preferring of the indirt- 
 mcut maliciously and without probable 
 cause, which he calls a completed con- 
 spiracy actually carried into execution ; 
 and this ho holds to be clearly suflicient ; 
 and no doubt it was .so ; for, rejecting 
 the averment of the unc.vccuted con- 
 spiracy, the indictment undoubtedly 
 contained a complete description of a 
 common law misdemeanor.' 
 
 (i') Eex V. ]\Iawbey, 6 T. E. 613. 
 
 Ante, p. 114. Lawrence, J., said that it 
 was not unlike the case of perjury where 
 a man swears to a particular fact without 
 knowing at the time whether the fact be 
 true or false ; whi(di is as much perjury 
 as if he knew the fact to be false, and 
 c([ually indictable. Ante, p. 2. 
 
 («') Ecdes's case in note {d) to Rex r. 
 Turner, 13 East, 230. Ante, p. 124. 
 
 {x) Kc.\ V. Gill, 2 B. & A. 204. In 
 Keg. V. Parker, 3 Q. B. 292, 11 Law J. 
 N. S. 102, Mag. (.•., Williams, J., said, 
 'It has been always thought that in 
 Pe.K v. Gill the extreme of laxity was 
 allowed.' 
 
 (//) Antt, p. 117. See also Rex v. 
 Seward, ante, p. 118. 
 
 K 2
 
 13-J 
 
 Of Conainracij. 
 
 [I'.ooK 
 
 Indictment fur 
 conHpirinR to 
 injure nil »lio 
 HJiouid piir- 
 cliiuse sliiiroH 
 in tiio funds. 
 
 Indictment for 
 conPi>iring to 
 obtain goods 
 ■n-itliout 
 making pay- 
 ment for 
 them. 
 
 Indictment for 
 conspiring to 
 obtain goods 
 by a fraud- 
 ulent deed. 
 
 case tlio ^nst of tlio indicliiiont was tlio conspiificy, and it nii^lit be 
 that there was .so nuicli uncertainty in the transaction, which was 
 tl)o suhject of the indictment, that the allej^ation couM not be 
 made with /^'reatcr certainty, as tlie conspiracy might be to defraud 
 the ])r()seciitor, not of any particular good.s, but of any goods the 
 prisoner could get hohl of. iz) 
 
 And so where an indictmiMit stato<l lliat Ibe defendants con- 
 spired by false rumours to raise the funds, with 'intention thereby 
 to injure and aggrieve all tin; subjects of the King who should on 
 the '21st of February purchase or buy ' any shares in the funds ; 
 and it Avas objected that the persons to be affected by the conspi- 
 racy were not particularised, as they ought to be, it was held that 
 the indictment was good ; for it followed from the nature of the 
 charge that the persons could not be named, because this was a 
 charge of conspiracy on a previous day to raise the funds on a 
 future day, so that it was uncertain Avho Avoukl be the purchasers; 
 and the offence being to raise the funds on a future day, its object 
 was to injure all those who should become purchasers on that day, 
 and not some individuals in particular, {a) 
 
 So where the first count of an indictment stated that the de- 
 fendants conspired to defraud ' divers of her Majesty's liege sub- 
 jects, who should bargain with the dcfenchmts for the sale of goods 
 and merchandize of the said subjects ' of great value, without 
 making payment or other remuneration or satisfaction for the same, 
 with intent to acquire to the said defendants divers sums of money 
 and other profit and emolument ; it was held that it was no valid 
 objection that the count did not state what particular creditors the 
 defendants meant to defraud ; for if the otfence went no further 
 than the conspiracy, it could not be known what particular persons 
 fell into the snare. But it was further held that the count was 
 defective in not stating with sufficient particularity what the de- 
 fendants conspired to do. For obtaining goods without making 
 payment was not necessarily a fraud, as the words of the in- 
 dictment might apply to the obtaining goods to sell on com- 
 mission, {h) 
 
 The second count in the same indictment alleged that the de- 
 fendants being 'indebted to divers persons in large sums of money,' 
 con.spired to defraud the said creditors of the defendants of pay- 
 ment of their said debts, and in pursuance of the said conspiracy 
 unlawfully did execute a certain fal.>^c and fraudulent deed of 
 bargain and sale and assignment of certain fixtures, stock in trade, 
 and goodwill, of ea'eat value, belonoiuw to the said defendants, from 
 two of themselves to the third, for divers false and fraudulent con- 
 siderations, with intent thereby to procure to the said defendants 
 divers sums of money and other emoluments ; and it was held that 
 this count was bad for the same reasons as the first ; it did not 
 state in what respect the deed was false and fraudulent, and there- 
 fore the court had only the prosecutor's general opinion upon this 
 point, not the facts on which it was founded, (c) 
 
 (:) Anonymous, 1 Cliitty Eep. 698. 
 In Reg. V. Parker, supra, it was said that 
 the objection in this case was that the 
 l>articuhu- goods were not si)ecified, and 
 probably only so much as sliowed that 
 was stated in the report. 
 
 («) Eex r. De Berenger, 3 M. & S. 68, 
 anic, p. 116. 
 
 (/') Reg. r. Peck, 9 A. & E. 6S6. 1 
 P. & D. 508. 
 
 (c) Keg. V. Peck, supra.
 
 CHAP. Ti.] Indictment. 
 
 AVhere an indictment alleged that an issue in an action between 
 H. B. and G. C. was tried, and that the plaintiff recovered a verdict 
 for the sum of 171., and that the judge certified that (execution 
 ought to issue forthwith, and that the defendants 'did conspire 
 falsely and fraudulently to cheat and defraud the said H. B. of the 
 fruits and advantages of the said verdict and certificate ; ' Lord 
 Denman, C. J., held that the indictment was bad, as the allegation 
 was too general, and did not convey any specific idea which the 
 mind could lay hold of, to judge whether any unlawful act had 
 been done or attempted. The terms used did not import in what 
 manner the plaintiff" was to be deprived of the fruits and advan- 
 tages of his verdict, and it was not even alleged that the verdict 
 would lead to any fruits and advantages, (d) 
 
 So where a count alleged that the defendants conspired ' by 
 divers false, artful, and subtle stratagems and contrivances, as much 
 as in them lay, to injure, oppress, aggrieve, and impoverish E. W. 
 and T. W., and to cheat and defraud them of their monies ; ' the 
 Court of King's Bench arrested the judgment on the ground that 
 this count was in too general a form to be supported, (e) So where 
 a count charged that the defendants did ' conspire to cheat and de- 
 fraud the just and lawful creditors ' of F. ; Lord Tenterden, C. J., 
 thought that the count was much too general, as it did not state 
 what was intended to be done, or the persons to be defrauded, but 
 refused to stop the case on this point, as, if an acquittal were 
 directed, o.nd the count should turn out to be good, the defendants 
 might plead autrefois acquit. (/) 
 
 An indictment for a conspiracy to obtain goods, which states 
 that the goods were obtained, must state whose property the 
 goods were, or it will be insufficient. The first count alleged that 
 the defendants, intending to cheat and defraud divers of the liege 
 subjects of the Queen of their goods, &c., unlawfully conspired 
 by divers false pretences to obtain from divers of the liege sub- 
 jects, &c., then carrying on business in the city of London, to 
 wit, T. Tam and D. Law, warehousemen and copartners, and 
 E. Fennell and R. Fennell, cotton yarn manufacturers and co- 
 partners, &c., divers goods and merchandise of great value, to wit, 
 &c., and to cheat and defraud the said liege subjects of the said 
 goods and merchandise. The count then set out several overt 
 acts as to the obtaining goods from the parties above named 
 respectively, and concluded by averring that the defendants did 
 by the means aforesaid obtain from the said T. Tam and D. Law, 
 and E. Fennell and R. Fennell, &c., the goods and merchandise 
 aforesaid, and did cheat and defraud them thereof The second 
 count was similar, but omitted to state the overt acts. The third 
 
 liy it, was lolVrred to in that iud^inciit ; 
 ami it appears di.stiiutly, from Koff. >: 
 Goini)t'rtz, U Q. 15. 8-2i, that Hex v. liier.s 
 lias never been eonsitiereil by the (Jneen's 
 Beneh as overiulinf; Kcx v. Gill.' It may 
 therefore becpiestioneil, whether the Court 
 of Exehcciuer Chamber iliil not think tlio 
 count in Hex i'. Biers, wliich is set out in 
 the text, to be good. 
 
 (/) Hex V. Fowle, 4 C. & P. 592. The 
 dei'eudants were acquitted. 
 
 (d) Eex V. Kichardson, 1 M. «& Hob. 
 402. 
 
 ((') Hex V. Biers, 1 A. & E. 327. In 
 SydserlTf. Heg., 11 Q. B. 245, nnf.c, p. 12i', 
 AVilde, C. J., in delivering the judgment 
 of the Court of ExeluMjuer Chamber, ob- 
 served, ' U[)Ou referring to the judgment 
 in Rex v. Biers, there seems strong rea- 
 son to doubt whether it did not go wholly 
 on the one objection to tlu! special counts. 
 Neither Hex r. Gill, nor any other autho- 
 rity at all Ijcariiig upon the jioint derided 
 
 133 
 
 Indictment for 
 conspiring to 
 defraud of the 
 fruits of a 
 verdict too 
 •'eneral. 
 
 Too general 
 counts. 
 
 An indictment 
 for conspiring 
 to obtain 
 goods and 
 obtaining 
 them held 
 bad for not 
 stating whose 
 property the 
 goods were.
 
 134 Of Conspiracy. [book v. 
 
 count stilted tlu! conspiracy to be to cause it to be believed tli.it 
 one of tilt' dcfcndiints, who was then an uncertificate<l bankrupt, 
 was not B. P., but J. P., and that he carried on an extensive 
 Hhippin/^f business, and was a man of large property, and had a 
 large capital in the business, and by means of the said belief to 
 obtain from divers liege subjects (not naming them) divers goods, 
 wares, and merciiandise, and to cheat and defraud the said liege 
 subjects of the said goods, &c. The fourth count charged that 
 the defendants unlawfully combined by divers false pretences to 
 obtain from divers liege subjects (not naming them) divers other 
 goods and merchandise of great value, and to cheat and defraud 
 the said liege subjects of the said goods, &c. The defendants 
 having been convicted, a rule was obtained to arrest the judgment 
 for the insufficiency of the indictment in not stating that the 
 goods, &c., which the defendants were charged with conspiring to 
 obtain, were the property of any person, it being consistent with 
 the statement that they were the goods, &c., of the defendants 
 themselves; and the Court of Queen's Bench held that the in- 
 dictment was bad for not stating to whom the goods belonged. 
 That where the object charged was a conspii-acy to obtain from 
 certain persons named divers goods, and to cheat and defraud 
 them of the same, and they were obtained, and the parties de- 
 frauded, no precedent was to be found to show that an indictment 
 was good which omitted to state whose the goods were. The first 
 count, therefore, was imperfect, and the objection applied more 
 strongly to the fourth count, w^here the language was still more 
 general. The conspiracy charged was to obtain divers goods and 
 to cheat and defraud certain persons named, not with intent to 
 cheat and defraud them of the same, though perhaps that would 
 have made no difference, and as there was no statement to whom 
 the goods belonged, the charge did not, of necessity, import any 
 oftence, as it was consistent with an attempt by the defendants to 
 obtain by some means their own goods unlawfully detained from 
 them ; and to hold that the use of the words ' to cheat and 
 defraud ' necessarily implied that the goods belonged to the parties 
 who were stated to be defrauded, would be letting in a generality, 
 which was not shown ever to be allowed, {g) 
 
 (g) Eeg. V. Parker, 3 Q. B. 292, 11 beyond the intention, whereas in the 
 Law J. K. S. Mag. C. 102. See Reg. other case what was actually effected may 
 V. Bullock, Dears. C. C. 653. S. P. easily be stated. The case may be com- 
 Although there appears at first sight to be pared to the cases of burglary with in- 
 some little discrepancy in the cases upon tent to steal, and burglary accompanied 
 this point, perhaps they are not irrecon- bj* an aitual stealing ; in tlie former it is 
 cilable. The correct distinction to be sufficient to state that the prisoner broke 
 drawn from them appears to be this, that and entered the house with intent to steal 
 where there has been merel)' a conspiracy the goods (without describing them) of 
 for a particular purpose (c. </. to raise the one A. B. ; and in the latter the goods 
 luuds), and such conspiracy has not been stolen must be particularised. So where 
 carried into execution, an indictment in a conspiracy has been detected before it 
 general terms will be sutficient ; but is carried into execution so far as to as- 
 wherc there has not only been a conspi- certain the parties intended to lie injured 
 racy, but such conspiracy has been car- by it, an indictment would be good with- 
 ried into effect, there the indictment out naming such parties. Eex r. De 
 ought to specify precisely what has been Berenger, ante, p. 116. But where 
 cfUcted, as the parties injured, the pro- the conspiracy had jnoceeded so fiir as to 
 prty obtained, and to whom it belonged. fix the parties intended to be injured, 
 The rcn-son of such a distinction is tliat such parties should be expressly named, 
 in the one case it is impracticable to state and if the object was to defraud them of 
 with minuteness what never was caiTied their goods, or theii- goods had been ac-
 
 CHAP. II.] Indictment. 135 
 
 A count alleged that the defendants did unlawfully combine, A count for 
 conspire, confederate, and agree together to cause and procure conspiring to 
 certain goods, wares, and merchandises, which had been and were ^^i^i^^had^' 
 theretofore imported into the port of London from parts beyond been im- 
 the seas, and in respect whereof certain duties of customs were ported, to be 
 due and payable to the Queen, to be taken away from the said without pay. 
 port and delivered to the respective owners thereof without pay- ment of part 
 ment to the Queen of a great part of the duties of customs so due o* ^^^^ ^^^^' 
 and payable thereon as aforesaid, with intent to defraud the Queen describe the 
 in her revenue of the customs; it was objected in arrest of judg- goods, 
 ment that the count was insufficient, because no description of the 
 goods was given, by which the Court could judge wliether the 
 goods were liable to duty. But the Court of Queen's Bench held 
 that it was not necessary to specify the goods. It was matter of 
 evidence what the goods were to which the conspiracy related ; 
 the parties might have conspired without knowing what they 
 were ; they might have laid their heads together to cheat the 
 Queen of whatever customable goods they could pass, (li) 
 
 A count alleged that W. H. King, E. A. Birch, and A. D, a count, 
 Phillips, did ' unlawfully combine, conspire, confederate and agree ■"'^'^h charges 
 together to cheat and defraud certain liege subjects of our Lady to'^chearcer- 
 the Queen, being tradesmen, of divers large quantities of their tain liege sub- 
 goods and chattels : ' and that E. A. Birch, in pursuance of the Jects of their 
 said conspiracy, did fraudulently order and obtain upon credit fs°it^neTther ' 
 from W. A. W. and C. W. divers goods and chattels belonging states their 
 to the said W. A. W. and C. W. ; from F. B. and W. J., divers n^mes or 
 goods and chattels belonging to the said F. B. and W. J. ; and cusrfornot 
 from divers other tradesmen whose names are to the jurors un- doing so ; and 
 known, divers other goods and chattels belons^ing to the said last i*- '^ °°* ^^'^^'^ 
 mentioned persons ; and that E. A. Birch, ' in further pursuance ^l ^^^^ ^^^^ 
 of the said conspiracy,' and in order that the said goods might be which neither 
 taken in execution as hereinafter mentioned, did order the said ^"^ themselves, 
 goods to be delivered at her house ; and that the said goods were ^j^j^ ^.j^j^ ^he 
 so delivered, and no payment made for the said goods by any of statement of 
 the defendants at any time ; and that, ' in further pursuance of the the conspiracy, 
 said conspiracy,' the said E. A. Birch did procure the said goods iadictable 
 to remain in her house until they were taken in execution as offence, 
 hereinafter mentioned ; and that the defendants, ' in further pursu- 
 ance of the said conspiracy,' did falsely and fraudulently pretend 
 that certain debts were due from the said E. A. B. to the said 
 
 tually obtained thereby, the indictment should not be indictable for a conspiracy, 
 should state in the one case the intent to The betti-r ground to rest the decision 
 defraud them of tlieir goods, and in the upon would seem to bo tiiat the indict- 
 other that they were defrauded of their ment did not adopt such a degree of par- 
 goods. This ])osition has been fully ticularity as the facts enabled the prose- 
 borne out by lleg. v. King, hifi-a. It cutor to do, and tlie rules of criminal 
 may, perhaps, admit of some doubt pleading rc(piire to be adopted where it is 
 whether the possibility of the goods be- prai'ticable. C. S. (!. 
 longing to the defendants in the principal (/;) Keg. v. Blake, 6 (J. 15. 12C. This 
 case necessarily rendered the indictment decision was before Heg. v. King, post, 
 bad; for as a party may be guilty of lar- and all the reasoning in the Judgment of 
 ceny in stealing his own goods, nntr, the Exchequer Chamber tends to show 
 vol. 2, p. 240, there seems no reason why that this decision was wrong, as the 
 parties who conspired to obtain their own goods had been imported and clearly 
 goods from another, and thercl)y to cheat ascertained. The terms 'o tjnat part of 
 and defraud him, under such circum- the duties of customs ' seem very objec- 
 stauces as did not amount to larceny, tionable.
 
 :u*i Of Cons/>n'<icf/. [book V. 
 
 W. H. K .'iihI a. 1). r. respectively, :iii<l that t)ic said W. H. K. 
 and A. D. I'., ' in luitlier pursuance of" tlic said conspiracy, and in 
 order to obtain ])aynncnt of such false and fictitious debts,' did 
 conmienci; by collusion with the said K. A. I>ircli separate actions 
 a^'ainst tlic said K A. Jiirch. And tli;if iifterwards, 'in further 
 pursuance of the said conspiracy,' judgments were collusively 
 signed l>y the said W. A. K. and A. }). P. in each of tlie said 
 actions for want of a plea. And that afterwards, ' in further 
 pursuance of the said conspiracy, writs of Jicrl facins were collu- 
 sively sued out upon the saitl judgments; by virtue of which 
 writs the said goods were, before the expiration of the said re- 
 spective times of credit, taken in execution and sold in due course 
 of law to satisfy the fictitious debts falsely and fraudulently 
 alleged to be due from the said E. A. Birch. And so the jurors 
 aforesaid find that the defendants, in manner and l)y the means 
 aforesaid, unlawfully did cheat and defraud the said W. A. W, 
 and 0. W., F. B. and W. J. &c., of their said goods.' The de- 
 fendants were convicted, and the Court of Queen's Bench held 
 the count good ; but the judgment was reversed in the Exchequer 
 Chaml)er; and Tindal, C. J., in delivering the judgment of the 
 Court, said, 'The charge is that the defendants c<jnspired to cheat 
 and defraud divers liege subjects, being tradesmen, of their goods, 
 &c. ; and the objection is that these persons should have been 
 designated by their christian and surnames, or an excuse given, 
 such as that their names are to the jurors unknown ; because 
 this allegation imports that the intention of the conspirators was 
 to cheat certain definite individuals, who must always be described 
 by name, or a reason given why they are not ; and if the con- 
 spiracy was to cheat indefinite individuals, as for instance those 
 whom they should afterwards deal with, or afterwards fix upon, it 
 ought to have been described in appropriate terms, showing that 
 the o))jects of the conspiracy were, at the time of making it, un- 
 ascertained, as was in fact done in the case of Hex v. Dc Be- 
 renger, (/) and lier/inc. v. Peck; (j) and it was argued that if, on 
 the trial of this indictment, it had appeared that the intention was 
 not to cheat certain definite individuals, but such as the conspira- 
 tors should afterwards trade with or select, they would have been 
 entitleil to an acquittal ; and we all agree in this view of the case, 
 and think that the reasons assigned against the validity of this 
 part of the indictment are correct. But then it was urged on the 
 part of the crown that this defect in the allegation of the con- 
 spiracy was cured by referring to the whole of the indictment, 
 the part stating the overt acts as Avell as that stating the conspi- 
 racy ; and Bex v. Spvagy (/.•) was cited as an authority that the 
 whole ought to be read together. But if we examine the allega- 
 tions in this indictment, there is no sufiicieut description of any 
 act done after the conspiracy which amounts to a misdemeanor 
 at common law. Kone of the overt acts are shown by proper 
 averments to be indictable. The obtaining goods, for instance, 
 from certain named individuals upon credit, without any averment 
 of the use of false tokens, is not an indictable misdemeanor; and 
 
 ((■) 3 iM. & S. or, ante, p. 116. {k) 2 Burr. 993. See ante, p. 130, 
 
 (» 9 A. & E C8ti, ante, p. 132, vote {u), for the remarks on this case.
 
 CHAP. II.] Indictment. 137 
 
 if it is said that because it is averred to have been done in pursu- 
 ance of the conspiracy before mentioned, it must be taken to be 
 equivalent to an averment that the conspiracy was to cheat the 
 named individuals of their goods, the answer is, first, that it does 
 not necessarily follow, because the goods were obtained in pursu- 
 ance of the conspiracy to cheat some persons, that the conspiracy 
 was to cheat the persons from whom the goods were obtained ; 
 they might have been obtained from A. in the execution of an 
 ulterior purpose to cheat B. of liis goods. And secondly, if the 
 averment is to be taken to be equivalent to one that the goods 
 were obtained from the named individuals in pursuance of an 
 illegal conspiracy to cheat and defraud those named individuals of 
 their goods, it would still be defective, as not containing a direct 
 and i)ositlve averment that the defendants did consjoire to cheat 
 and defraud those persons, which an indictment for a conspiracy, 
 where the conspiracy is itself the crime, ought certainly to con- 
 tain. The other allegations of what are termed overt acts are 
 open to the same objection. In none is there complete de- 
 scription of a common law misdemeanor independently of the 
 conspiracy ; and the allegation of the conspiracy is insufiicient, 
 and not direct and positive. For these reasons the judgment 
 must be reversed.' (I) 
 
 Where a count charged that Lewis carried on the business of a A count which 
 dyer, and had divers vats and quantities of dye for the carrying alWesthe 
 on the business, and that the defendants were employed by Lewis conspiracy is 
 as his servants in the management of his business, and that it was sooJ, tl^<>"g^ 
 their duty as such servants to employ the vats and dye of Lewis ciently au\ge " 
 for his benefit and for dyeing such materials as might belong to au overt act. 
 themselves or be intrusted to them by Lewis for those purposes, 
 and for no other purposes and on no other materials ; and that the 
 defendants unlaw^fully conspired, fraudulently and without the 
 consent of Lewis, to employ the vats and dye in dyeing materials 
 not belonging to themselves and not intrusted to them by Lewis, 
 and to obtain thereby to themselves large profits, and to deprive 
 Lewis of the use and benefit of the said vats and dye ; and that 
 the defendants, in pursuance of the said conspiracy, wilfully and 
 without the consent of Lewis, received into their possession 
 divers large quantities of materials, and wilfully and without the 
 consent of Lewis, at his expense and with his said vats and dye, 
 dyed the same materials for their own profit and benefit ; it was 
 objected that the count did not show that the goods which the 
 defendants dyed were not their own, and that it appeared by the 
 record that they liad permission to dye their own goods ; but the 
 Court of Queen's Bench held that the count was good ; it was 
 clear that the essential part of the count was the charge of a 
 conspiracy ; so that if the evidence proved the conspiracy and 
 did not prove the overt acts alleged, viz. that the conspiracy 
 was carried into effect, the count would have been sufficiently 
 proved, {ni) 
 
 (?) Ecg. V. King, 7 Q. B. 782. Intlie was not necessary, and this point docs 
 
 argument in the (."ourt of Queen's Bench not appear to liave been raised in tlie 
 
 in this case it was also objected that the E.xcheiiuer Clianiber. 
 conspiracy ought to liave been Laid to dc- (m) Ixeg. v. Button, 11 Q. B. 929. 
 
 fraud divers tradesmen of their goods There was another count similar to tho 
 
 'rfs7)0''^arZ?/,' but the court held that this above, which was objected to on the
 
 138 
 
 O'ConncIl'H 
 
 ('{180. 
 
 Coiint« whirli 
 clmrjjo H (•(III- 
 ■l>ini(;y to 
 riii.sc (liscon- 
 tciil iiiicl (lis- 
 afTcctiun 
 nmongMt tho 
 
 KUlljcCtS (if 
 
 tho (jiioi'ii, 
 to Hlir up 
 jenlousios, 
 hiiticd, and 
 ill-will be- 
 tween (lilTorent 
 clfi-ssex, arc 
 good. 
 
 Counts which 
 charge a con- 
 spiracy to 
 obtain, hy 
 means of in- 
 timidation and 
 the cxhiliition 
 of idiysical 
 force, a change 
 in the govcrn- 
 inent, are bad. 
 
 ' >f Conf^inracu. 
 
 [rook v. 
 
 Tho first count ;ill<j[,'0(l tliat tljo defendants, intendinf( to create 
 <li.s('ont»'nt ami disalVL'ction amongst tlio subjects of" the Queen, and 
 to e.xcite the said subjects to hatred of the government and consti- 
 tution, (tc, unlawfully and scditiou.sly did con.spire, &c., to create 
 di.scontent and ilisaffection amongst the subjects of the Queen, and 
 to e.xcite such subj(;cts to hatred and contempt of the government 
 and constitution and to unlawful and seditious opposition to the 
 goveriinieiit and constitution, and to stir up jealousies and ill-will 
 between ditilerent classes of her Majesty's subjects, and especially 
 to pioniote among her Majesty's subjects in Ireland feelings of ill- 
 will and hostility towards and against her Majesty's subjects in the 
 other parts of the United Kingdom, and especially in that part 
 called England ; and furtlier, to excite di.scontent and disaffection 
 amongst divers of her Majesty's subjects serving in the army ; and 
 furthei-, to cause and procure, &c., divers subjects unlawfully and 
 seditiously to meet and assemble together in large numbers, at 
 different places in Ireland, for the unlawful and seditious purpose 
 of obtaining, by means of the intimidation to be thereby caused, 
 and by means of the exhibition of great physical force at such 
 assemblies and meetings, changes and alterations in the govern- 
 ment, laws, and constitution ; and further, to bring into hatred and 
 disrepute the courts by law established in Ireland for the adminis- 
 tration of justice, and to diminish the confidence of the said sub- 
 jects in Ireland in the administration of the law therein, Avith the 
 intent to induce the subjects to withdraw the adjudication of their 
 differences from the cognizance of the said courts, and to submit 
 the same to the determination of other tribunals to be constituted 
 for that purpose. The count then alleged various overt acts done 
 in order to excite discontent with, hatred of, and disaffection to the 
 government, laws, and constitution. The second count was exactly 
 like the first, but omitted the overt acts. The third count alleged 
 that the defendant.s, intending to create discontent and disaffection 
 amongst the subjects of the Queen, and to excite the said subjects 
 to hatred and contempt of the government and constitution, &.C., 
 unlawfully and seditiously did conspire, &c., to raise and create 
 discontent and disaffection amongst the subjects of the Queen, and 
 to excite such subjects to hatred and contempt of the government 
 and constitution, and to unlaAvful and seditious opposition to the 
 said government and con.stitution, and to stir up hatred, jealousies, 
 and ill-will between different classes of the said subjects, and espe- 
 cially to promote amongst the said subjects in Ireland feelings of 
 ill-will and hostility against the said subjects in other parts of the 
 United Kingdom, and especially in that part called England ; and 
 further, to excite discontent and disaffection amongst divers sub- 
 jects serving in her Majesty's army ; and further, to cause and 
 procure, kc, divers subjects to meet and assemble together in large 
 numbers at ditiferent places in Ireland, for the unlawful and sedi- 
 tious purpose of obtaining, by means of the intimidation to be 
 thereby caused, and by means of the exhibition of great physical 
 
 f^round that it did not allege any duty in 
 the defendants not to employ the dye for 
 tlieii- own prolit ; but the i"ourt held it 
 good, as the allcfjation of the conspiracy 
 was sullioieut. There was also a ([uestion 
 
 as to the conspiracy having merged in 
 the felony decided in this case ; but as 
 the 14 (fc'ir. Vict. c. 100, s. 12, has got 
 rid of all such (lucstions for the future, it 
 has l)een omitted.
 
 CHAP. II.] Indictment. 139 
 
 force at such assemblies and meetings, changes in the government, 
 laws, and constitution ; and further, to bring into hatred and dis- 
 repute the courts in Ireland for the administration of justice, &c. 
 The fourth count was the same as the third, omitting the charges 
 as to creating discontent in the army, and the diminishing the con- 
 fidence in the courts of law. The fifth count alleged that the de- 
 fendants, intending to cause and create discontent and disaffection 
 amongst the liege subjects of the Queen, and to excite the said 
 subjects to hatred and contempt of the government and constitu- 
 tion, &c., unlawfully and seditiously did conspire, &c., to raise and 
 create discontent and disaffection amongst the liege subjects of the 
 Queen, and to excite the said subjects to hatred and contempt of 
 the government and constitution, and to unlawful and seditious 
 opposition to the government and constitution, and also to stir up 
 jealousies, hatred, and ill-will between different classes of the said 
 subjects, and esjDecially to promote amongst the said subjects in 
 Ireland feelings of ill-will and hostility against the subjects in the 
 other parts of the United Kingdom, and especially in England, 
 The sixth count alleged that the defendants unlawfully and sedi- 
 tiously intending, by means of intimidation and the demonstration 
 of great physical force, to procure and effect changes to be made in 
 the government, laws, and constitution, unlawfully and seditiously 
 did conspire, &c., to cause, and procure, &c. divers subjects of the 
 Queen to meet and assemble together in large numbers, at various 
 times and at different places in Ireland, for the unlawful and 
 seditious purpose of obtaining, by means of intimidation to be 
 thereby caused, and by means of the exhibition and demonstration 
 of great physical force at such assemblies and meetings, changes 
 in the government, laws, and constitution, &c. The seventh count 
 w^as like the sixth, with the addition, ' and especially, by the means 
 aforesaid, to bring about and accomplish a dissolution of the legis- 
 lative union now subsisting between Great Britain and Ireland,' 
 The eighth count charged a conspiracy to bring the tribunals of 
 justice into contempt, and to cause the subjects to withdraw their 
 differences from the said tribunals, and to submit the same to 
 other tribunals. The ninth was similar to the eighth, but substi- 
 tuted for withdrawing their differences, (Src, ' to assume and usurp 
 the prerogative of the Crown in the establishment of courts for the 
 administration of the law.' The tenth count charged a conspiracy 
 to bring into disrepute the tribunals for tlie administration of jus- 
 tice. And the eleventh count alleged that the defendants, intend- 
 ing by means of intimidation and demonstration of physical force, 
 &c., by causing large numbers of persons to meet and assemble in 
 Ireland, and ])y means of seditious and inflammatory speeches to 
 be delivered to the said persons, and by means of pubHsliing divers 
 unlawful and seditious writings, to intimidate the Lords Spiritual 
 and TemiDoral and Commons of the Parliament of the United 
 Kingdom, and thereby to effect changes in the laws and constitu- 
 tion, unlawfully and seditiously did conspire, &c., to cause large 
 numbers of persons to meet together in divers places and at divers 
 times in Ireland, and by means of seditious speeches to be made 
 at the said places and times, and by means of publishing to the 
 subjects of the Queen unlawful and seditious writings, &c., to in- 
 timidate the Lords Spiritual and Temporal and the Commons of
 
 Oj Consjiinicij. [book v. 
 
 tlic P:uliainfnt of'llic IJnitcd Kiii<,Ml(>iii, and thereby to effect and 
 hriiiL' ul»()Ut cli;in{,ffs and alterations in tlie law.s and constitution. 
 Upon a writ of error in the House <,!' Lords, thi' following' (juestion 
 was nut to the jud<,'cs : — ' Arc^ ?dl or ;iny, and il' any, which, of tlie 
 counts in the in(M<'tnient had in law? 80 that if such count or 
 cniuits stood alonc^ in the indi(;tnient, no judgment against the de- 
 fendants coulil propcily be entered up on tlieni.' And Tindal, C. J., 
 thus dulivercd the answer of the judges: — ' My Lords, the answer 
 to the ([uestion will depend ujion the consideration, whetlier all 
 the counts of the indictment are framed with that proper and con- 
 venient certainty, with respect to the substance of the charge of 
 (•ons])iracy, which the law requires ; for, undoubtedly, if any of such 
 counts ar(! framed in so loose, uncertain, or inapt a manner, as that 
 the defendants might have availed themselves of the insufficiency 
 of the indictment upon a demurrer, there is nothing to prevent 
 them from having tlie same advantage of the objection upon a writ 
 of error. The crime of conspiracy is complete if two, or more than 
 two, should agree to do an illegal thing ; that is, to effect some- 
 thing in itself unlawful, or to effect, by unlawful means, something 
 which in itself may be indifferent, or even lawful. That it was an 
 offence known to the common law, and not first created by the 33 
 Kdw. 1, st. 2, is manifest. That statute speaks of conspiracy as a 
 term at that time well known to the law, and professes only to be 
 "a deiinition of conspirators." It has accordingly always been held 
 to be the huv, that the gist of the offence of conspiracy is the bare 
 engagement and association to break the law, whether any act be 
 done in pursuance thereof by the conspirators or not. {n) No 
 serious objection appears to have been made against the sufficiency 
 of any of the counts prior to the sixth. Indeed there can be no 
 question but that the charges contained iu the first five counts do 
 amount, in each, to the legal offence of conspiracy, and arc suffi- 
 ciently described therein. There can be no doubt but that the 
 agreeing of divers persons together to raise discontent and disaffec- 
 tion amongst the liege subjects of the Queen, to stir up jealousies, 
 hatred, and ill-will between different classes of her Majesty's sub- 
 jects, and especially to promote amongst her Majesty's subjects in 
 Ireland feelings of ill-will and hostility towards her Majesty's sub- 
 jects in other parts of the United Kingdom, and especially iu 
 England — which charges are found in each of the first five counts 
 — do form a distinct and definite charge in each, against the several 
 defendants, of an agreement betsveen them to do an illegal act ; 
 and it therefore becomes unnecessary to consider the other addi- 
 tional objects and purposes alleged in some of these counts to have 
 been comprised within the scope of the agreement of the several 
 defendants. With respect, however, to the sixth and seventh 
 counts, we all concur in opinion that they do not state the illegal 
 purpose and design of the agreement entered into between the 
 defendants with such proper and sufficient certainty as to lead to 
 the necessary conclusion that it was an agreement to do an act in 
 violation of the law. Each of those two counts does in substance 
 state the agreement of defendants to have been " to cause and 
 
 (h) Reg. V. Best, 2 Lord Eaym. 107, aud Rex v. Edwards S Zilod. R. 320. were 
 here cited.
 
 CHAP. II.] 
 
 Indictment — Overt Act. 
 
 141 
 
 procure divers subjects to meet together in large numbers, for the 
 unlawful and seditious purpose of obtaining, by means of the inti- 
 midation to be thereby caused, and by means of the exliibition and 
 demonstration of great physical force at such meetings, changes 
 in the government, laws, and constitution of the realm." Now^ 
 though it may be inferred from this statement, that the object of 
 the defendants was probably illegal, yet it does not appear to us to 
 be so alleged with sufficient certainty. The word " intimidation " 
 is not a technical word ; it is not vocabulum artis, having a neces- 
 sary meaning in a bad sense ; it is a word in common use, em- 
 ployed on tliis occasion in its popular sense ; and in order to give 
 it any force, it ought at least to appear from the context what 
 species of fear was intended, or upon whom such fear was intended 
 to operate. But these counts contain no intimation whatever upon 
 what persons this intimidation was intended to operate ; it is left 
 in complete uncertainty whether the intimidation Avas directed 
 against the peaceable inhabitants of the surrounding places, against 
 the subjects of the Queen dwelling in Ireland in general, against 
 persons in the exercise of public authority there, or even against 
 the legislature of the realm. Again, the mere allegation that these 
 changes were to be obtained by the exhibition and demonstration 
 of physical force, without any allegation that such force was to be 
 used, or threatened to be used, seems to us to mean no more than 
 the mere display of numbers, and consequently to carry the matter 
 no further. Applying the same principle and mode of reasoning 
 to the consideration of the eighth, ninth, and tenth counts, we all 
 concur in opinion that the object and purpose of the agreement 
 entered into by the defendants, as disclosed upon these counts, is 
 an agreement for the performance of an act, and the attainment of 
 an object, which is a violation of the laws of the land. Wc think 
 it unnecessary to state reasons in support of the opinion that an 
 agreement between the defendants to diminish the confidence of 
 her Majesty's subjects in Ireland in the general administration of 
 the law therein, or an agreement to bring into hatred and disre- 
 pute the tribunals by law established in Ireland for the adminis- 
 tration of justice, are each and every of them agreements to effect 
 purj)oses in manifest violation of the law. Upon the sufficiency of 
 the eleventh count, no doubt whatever has been raised.' (o) 
 
 A count alleged that the defendants, having in their possession Overt act 
 two horses, conspired by divers false pretences to obtain large unconnected 
 sums of money from such persons as might be desirous of pur- conspiracy, 
 chasing the said horses, and to cheat and defraud such persons of 
 such sums of money, and that the defendants, in pursuance of the 
 said conspiracy, made certain false pretences, which were set out ; 
 and that the defendants, in pursuance of the said conspiracy, dicl 
 obtain from W. A. an order for the payment of Hot. lOs. It 
 was objected that this count was bad, because it did not show that 
 W. A. was one of the persons who was desirous of purchasing the 
 horses, and therefore he was not shown to be within the objects of 
 the conspiracy; and the Recorder so held, (p) 
 
 (o) O'Coiincll V. Kcf,'. 11 C'l. & F. 
 155. The Lords all concuiTed iu this 
 judgment. 
 
 (2') Ki'g. V. Waid, 1 Cox, C. C. 101. 
 
 If'this case is correctlj' reported, the de- 
 cision is clearly ononcous. The count 
 alleged that the defcnaants did obtAin the 
 money from "\V. A. ' in pursuance of the
 
 142 
 
 Of Conspiracy. 
 
 [nooK V. 
 
 'roclinicjil 
 avoriiRUt (pf 
 couspiriicy. 
 
 riacc wliero 
 (ho (itrencc 
 iiiav 1)0 tried. 
 
 Jurisdiction of 
 the justices 
 at Quarter 
 Sessions. 
 
 5 & 6 Vict. 
 0. 38, s. 1. 
 
 An indictincnt fur u conspiracy to conceal and omljczzle the 
 pcrsoniil estate of a bankrupt under tlio G G. 4, c. 10 niiist state 
 tlie petitionini,' creditor'.s debt, the tradin*,', and tlic act of bank- 
 niptcv, and tliat the party had actually become bankrupt, {q) 
 
 Tht! technical averment of the agreement and conspiracy, gene- 
 rally used in the indictment, charges that the defendants 'did 
 conspire, combine, confederate, and agree together;' but it is 
 said that other words of the same import seem to be equally 
 proper, (r) To the counts for a conspiracy may be joined such 
 other counts as the circumstances of the case may seem to require 
 (not charging a felony), though they do not include a charge of 
 ctinspiracy. (.v) 
 
 It has been holden that in an indictment for a conspiracy the 
 venue must be laid where the conspiracy was, and not wliere the 
 result of such conspiracy was put in execution, (t) But it was 
 said by the court, that there seemed to be no reason why the 
 crime of conspiracy, amounting only to a misdemeanor, might not 
 be tried, wherever one distinct overt act of conspiracy was in fact 
 committed, as well as the crime of high treason, in compa-ssing 
 and imagining the King's death, or in conspiring to levy war. {u) 
 And a case was cited in which the trial proceeded upon this 
 principle; and in which, though no proof of actual conspiracy, 
 embracing all the several conspirators, was attempted to be given 
 in Middlesex, where the trial took place, and though the in- 
 dividual actings of some of the conspirators were wholly confined 
 to other counties than Middlesex, yet the conspiracy as against all 
 having been proved, from the community of criminal purpose, 
 antl by their joint co-operation in forwarding the objects of it, in 
 different places and counties, the locality required for the purpose 
 of trial was holden to be satisfied by overt acts, done by some of 
 them, in prosecution of the conspiracy in the county where the 
 trial was had. (y) 
 
 The offence of conspiracy might formerly be tried by justices of 
 peace in their Quarter Sessions. In a case where the question of 
 their jurisdiction Avas raised, no authority being cited either on thS 
 one side or on the other, the court decided in favour of their 
 jurisdiction, upon general principles, saying, that a conspiracy was 
 a trespass, and that trespasses were indictable at sessions, though 
 not committed with force and arms, {id) But now by the b &, Q 
 Vict. c. 38, s. 1, 'neither the justices of the peace acting in and 
 for any county, riding, division, or liberty, nor the recorder of 
 
 conspiracy" which is the regular mode of 
 connecting the overt act with the con- 
 spiracy, especially where, as in this case, 
 the overt act could not be foreseen at the 
 time when the conspiracy was entered, 
 into. The overt act, therefore, was well 
 laid. But even if it had been otherwise, 
 the count was good without it ; for the 
 conspiracy was clearly well laid : and, 
 wliere that is the case, an accjuittal of the 
 overt act is inunaterial. Kex v. Sterling, 
 1 Lev. I'io, shows that the overt act is 
 in such a case inunaterial. 
 
 Kq) Rex r. Jones, 4 B. & Ad. 345. 1 
 N. & M. 78. Sec vol. 2, p. 452. 
 
 ()-) 3 Cliit. trim. L. 1143. See per 
 
 Lord Campbell, Reg. r. Hamp, ante, p. 
 115. 
 
 {s) See tlie judgment of Lord Elleu- 
 borovigh, C. J., in Kex v. Johnson, 3 M. 
 & S. 550. In Reg. v. ilurphy, 8 C. i: P. 
 297, counts for libel were joined. 
 
 (t) Reg. r. Best, 1 Salk.'l74. 
 
 ()/) Rex r. Brisac, 4 East, R. 171. 
 
 (v) Rex V. Bowes, cited in Rex r. 
 Brisac, supra. 
 
 (w) Rex r. Risj^al, 3 Burr. 1320. 1 
 Black. R. 368. Burn's Just. tit. Con- 
 spiracy, sec. 1. The point was so de- 
 cided in an earlier case, Rex f. Edwards, 
 8 Mod. 320.
 
 CHAP. 
 
 II.] 
 
 Evidence. 
 
 14: 
 
 any borough, shall, at any session of the peace, or at any ad- 
 journment thereof, try any person or persons, for {inter alia) 
 unlawful combinations and conspiracies, except conspiracies or 
 combinations to commit any offence which such justices or re- 
 corder respectively have or has jurisdiction to try when committed 
 by one person.' 
 
 A count alleged that the prisoners conspired, by divers false 
 pretences, against the form of the statute in that case made and 
 provided, to defraud the prosecutor of his money ; and it was 
 objected that the facts ought to have been set out so as to show 
 that the offence io tended to be committed was within the juris- 
 diction of the sessions, by whom the indictment had been tried ; 
 but the Court of Queen^s Bench held that the count sufficiently 
 showed that the sessions had jurisdiction. (,r) 
 
 As to an indictment for conspiracy not being preferred without 
 previous authorization, see vol. 1. p. 2. 
 
 On an indictment against the manager and secretary of a joint 
 stock bank, the indictment containing many counts, some charging 
 that the defendants concurred in making and publishing false 
 statements of the affairs of the bank, and others that they conspired 
 together to do so, the prosecutors were put to elect on which set 
 of counts they would rely, and they having elected to rely on the 
 counts for conspiracy, held, that it was not enough to prove that 
 the defendants made and put forth false statements intended and 
 calculated to deceive, unless they had entered into a precedent 
 and fraudulent conspiracy to do so. The chief count relied upon not 
 stating an intent to defraud any particular parties ; held, that 
 though there were auditors, whose duty it Avould be to discover 
 any frauds, that was no answer to the prosecution, if the defen- 
 dants were party to such conspiracy to deceive them and the 
 directors. But, on the other hand, the jury were told that evi- 
 dence that the directors were privy to all that was done was very 
 material, with a view to negative such conspiracy, on the part of 
 the defendants, to deceive, {xx) 
 
 On a prosecution against several persons for a conspiracy, the 
 wife of one of the defendants has been holden not to be a com- 
 petent witness for the others, a joint offence being charged, and 
 an acquittal of all the other defendants being a ground of dis- 
 charge for the husband, (y) And so it has been held, upon an 
 indictment against the wife of W. S. and others for a conspiracy 
 in procuring W. S. to marry, that W. S. was not a competent 
 witness in support of the prosecution. (;r) See 38 & 39 Vict. c. 8G, 
 s. 11, post, p. 163, where a husband or wife is a competent witness 
 under that Act. 
 
 An able writer upon the law of evidence lays down the follow- 
 ing doctrine with re.spect to the acts or words of one conspirator 
 being evidence against the others. Where several jDersons are 
 proved to have combined togctlior for the same illegal purpose, 
 any act done by one of the party, in pursuance of the original 
 
 (x) Latham r. Keg. 9 Cox, C. C. 516. 
 
 {xx) R. V. F.irc.h, 4 V. & F. 407. Seo 
 R. V. Bairy, 4 V. & F. 389. 
 
 (l/) Rex V. Loekycr, 5 Esp. N. P. R. 
 107. Lord EUculjorough, C. J. Rex v. 
 
 Ficdciick, 2 Str. 1095. 1 PliiU. Evul 
 74. 
 
 (z) Rex V. Serjeant, R. & M. N. I\ R 
 352. 1 Fhill. Eviil. 74. 
 
 A count 
 showing juris- 
 diction in the 
 sessions. 
 
 Indictment not 
 to be preferred 
 without pre- 
 vious authori- 
 zation. 
 
 Indictment for 
 publishing 
 false state- 
 ments of the 
 affaii-s of a 
 bank. 
 
 Wife of one 
 defendant no 
 witness for the 
 others. 
 
 How far the 
 acts or words 
 of one con- 
 spirator arc 
 evidence 
 against the 
 others.
 
 14 1 Of Co I IS piracy. [book v. 
 
 ronrcitfd jdaii, ;in<l with reference to tlic common object, is in the 
 rontfm|)l;ilioi) (»f l;i\v the act of the whole ]).'irty, and, tlieicfoie, 
 the proof of such act wonhl 1)0 cvi(U'nce at^ainst any of the otliers 
 who were enyai^i-d in the same conspiracy ; and, further, any 
 (h-charations, made hy one of tlie party at the time of doing such 
 illei^al act, seem not only to be evidence against himself, a-s tend- 
 \\]\f to determine the (piality of the act, but to be evidence also 
 a;^:iiiist the rest of the party, who are as much responsible as if 
 tliev had themselves done the act. But what one of the party 
 may have been heard to say at some other time, as to the share 
 which some of the others had in the execution of the common 
 design, or as to the object of the conspiracy, cannot, it is con- 
 ceived, be admitted as evidence to affect them on their trial for 
 Proof of con- the same offence. («) And, in general, proof of concert and con- 
 cert iicforc ncction must be given, before evidence is admissible of the acts 
 (leil.ir:»tion.s ^^ declarations of any person not in the presence of the pri- 
 admissiblo. soner. {h) It is for the court to judge whether such connection 
 lias been sutficicntl}^ established ; but when that has been done, 
 the doctrine applies that each party is au agent for the others, 
 and that an act done by one in furtherance of the unlawful 
 design, is in law the act of all, and that a declaration made by one 
 of the parties, at the time of doing such an act, is evidence 
 against the others. Thus, where Stone was indicted for treason, 
 and one of the overt acts charged was conspiring with Jackson 
 and others to collect intelligence, and to communicate it to the 
 King's enemies in France, &c., after evidence had been given to 
 connect the prisoner with Jackson in the conspiracy as charged, 
 the secretary of state for the foreign department was called to 
 prove that a letter of Jackson's, containing treasonable informa- 
 tion, had been transmitted to him from abroad, but in a confiden- 
 tial way, which made it impossible for him to divulge by whom it 
 was communicated : and such letter was received in evidence, (c) 
 So, in another case, after evidence had been given of a treasonable 
 conspiracy, in which the prisoner was concerned, it was held that 
 papers found in the lodging of a co-conspirator, at a period sub- 
 sequent to the apprehension of the prisoner, might be read in 
 evidence, upon strong presumptive proof being given that the 
 lodgings hail not been entered by any one in the interval between 
 the apprehension of the prisoner and the finding of the papers, 
 and although no absolute proof had been given of their existence 
 2)revious to the prisoner's apprehension, {d) But it seems that if 
 such papers had not been proved to have been intimately and 
 immediately connected with the objects of the conspiracy, they 
 would not have been admissible ; as, in the same case, a paper 
 containing seditious questions and answers, and found in the pos- 
 session of a co-conspirator, Avas not read in evidence, the court 
 
 (a) 1 riiill. on EviJ. 04, 05, 7th cd. defendants were indicted for a conspiracy 
 
 See 9th ed. 201. to cheat and defraud by means of a false 
 
 (6) 1 East, P. C. 0. 2, s. 37, p. 06. 2 i>rosiipctvis of a ]iublic company. 
 
 Stark. Evid. 326, and 1 Phill. Evid. 477, (<) Rox v. Stnue, 6 T. W. o'll. 
 
 citing the Queen's case, 2 Brod. & B. (d) Re.v v. Watson, 2 Stark. C. 140. 
 
 S02. Reg. r. Jacobs, 1 Cox, C. C. 173. R. r. MacCafTertv, 10 Cox, C. C. 603 ; 
 
 Reg. r. Duffield, 5 Cox, C. C. 404. See R. v. Meanev, lo'Cox, C. C. 506. 
 R. V. Guniev, 11 Cox, C. C. 414, wliere
 
 CHAP, il] Evidence. 145 
 
 doubting- whether it was sufficiently connected by evidence with 
 the object of the conspiracy to render it admissible, (e) 
 
 Where, upon an indictment for conspiring to annoy a broker Declarations 
 who distrained for church-rates, it was proved that one of tlie and acts ia 
 defendants, in the presence of the other, excited the persons fi?J!!lt°!,1 °,„ 
 
 Till 11* • • 11 111) tuub|)irdty. 
 
 assembled at a public meeting to go in a body to the brokers 
 house ; it was held that evidence was admissible to show that they 
 did so go, although neither of the defendants went with them, but 
 that evidence of what a person, who was at the meeting, said a 
 few days after the meeting when he himself was distrained on for 
 church-rates, was not admissible. (/") And where an indictment 
 charged the defendant with conspiring with Jones, Avho had been 
 previously convicted of treason, to raise insurrections and riots, 
 and it was proved that the defendant had been a member of a 
 Chartist association, and that Jones was also a member, and that 
 in the evening of the 3rd of November the defendant had been at 
 Jones's house, and was heard to direct the people there assembled 
 to go to the race-course, where Jones had gone on before with 
 others ; it was held that a direction given by Jones in the fore- 
 noon of the same day to certain parties to meet on the race-course 
 Avas admissible ; and it being further proved that Jones and the 
 persons assembled on the race-course went thence to the New 
 Inn, it was held that what Jones said at the New Inn was admis- 
 sible, as it was all part of the same transaction, {g) 
 
 A number of persons were charged with murder committed by 
 an act done in the course of a conspiracy for the purpose of 
 liberating a prisoner, of which conspiracy he was cognizant : Held, 
 that acts of that prisoner, within the prison, and articles found 
 upon him, were admissible in evidence against the persons so 
 charged. {Ji) 
 
 On an indictment on the 11 & 12 Vict. c. 12, s. 3, which Evidence of 
 makes it a felony to compass, &c., to deprive the Queen of her nicctingsand 
 crown or to levy war, &c., it appeared that the prisoners from pj^ce at them. 
 July 2()th to August 16th had attended meetings where plans for 
 securing the people's charter and the repeal of the union were 
 organized, and took a prominent part at those meetings : large 
 bodies of men were formed into societies, with class leaders, &c. ; 
 some of them were selected and organized as fighting men, and 
 an attempt at insurrection was to be made on tlie IGth of August; 
 and on that night a great number of the conspirators were found 
 at the several places of meeting previously fixed, provided Avith 
 arms, &c. A witness stated that at a meeting, at which none of 
 the prisoners wore present, he received a leaf of a book from one 
 Bezer, which was to serve as an introduction to a subsequent 
 meeting ; and on the 2()th of July he attended a .second meeting, 
 and produced the leaf; the chairman compared it witii a book, 
 and the witness was admitted. The prisoners were not shown to 
 have been parties to the conspiracy at the time. But it was 
 held that the witness might prove what Bezer said to him when 
 
 (-■) licx V. Watson, supra. But tlioy Coloriilf^c. J. 
 
 hold that if proof were to be given that [g) Keg. r. Shellard, 9 C. k V. '211, 
 
 the instrument was to be used for the Pattcson, J. 
 
 purposes of the conspiracy, it would (/i) R.r. Desmond and others, 11 Cox, 
 
 clearly be admissible. C. C. 146. 
 
 (/) Keg. r. Murphy, 8 C. & P. 297, 
 
 VOL. III. ^
 
 11 1; 0/ Consjnracij. [book v. 
 
 lio gave lilin the leaf, and also what took place at the second 
 moetiiij,', on the t^ionnd that the prosecution had a right to go 
 into general evidence of" the nature of the combination between 
 the j)ersons assembled, though the prisoners might not be pre- 
 sent. (/) And it having been proved that a large number of 
 armed men "were found assembled at a public-house on the 10th 
 of August, the time which liad been fixed for the general out- 
 break, but none of these men had been previously connected with 
 the conspiracy, nor did it appear that the house had ever been 
 recognized as a place of meeting ; it was held that evidence was 
 adniissil)le of what was done at that public-house ; because it 
 ai^peared that on this day there was to be a collection of armed 
 persons. {J) 
 Aiiiuissibility Ou au indictment for a conspiracy to prevent workmen from 
 of a handbill, continuing in their service as tinplate-workers, it appeared that 
 the workmen had been holding shop-meetings and discussions, 
 and the prosecutor, a manufacturer, had puljlished a placard offer- 
 ing constant employment to tinplate-workers, and after that a 
 handbill was circulated about the town, and copies of it stuck up 
 in the windows of ^beer-shops and public-houses, and one of them 
 in the window of a public-house frequented by the tinplate- 
 workers, and another at a public-house at which one Peel, Green, 
 and Winters, alleged conspirators, lodged, and the defendants had 
 been continually into those houses whilst the bill was in the win- 
 dows. The bill was addressed ' To the members of the several 
 trade societies connected with the National Association of United 
 Trades by the central committee,' and recited that the committee 
 had been called upon for advice by the tinplate-W'Orkers of the 
 town to enable them to obtain an established book of prices ; and 
 that communications had taken place with the prosecutor about 
 the amount of wages, but that no arrangement could be made 
 with him. The bill was signed by Peel as general secretary, 
 and mentioned Green and Winters as having visited the prose- 
 cutor, but did not mention any of the defendants. Erie, J., held 
 that the bill was not admissible as the act of the defendants, 
 either by themselves or as published or recognized by them. 
 ' You may make a handbill evidence against a man, if I may so 
 sa}', by retrospective light arising from his conduct. If a hand- 
 bill says that certain things will be done by certain persons, and 
 that handbill is circulated, where those persons probably saw it, 
 and they do the very thing that the handbill indicates they would 
 do, when that is in evidence, I am of opinion that the bill would 
 be admissible against them ; but we are not at that stage yet.' (k) 
 But on the trial of another indictment against Rowlands, Green, 
 Peel, Winters, and others, arising out of the same transaction.s, 
 where, in addition to the evidence in the previous case, it was 
 proved that Rowlands had been at the Swan whilst the bill was 
 exhibited there, and Peel had been seen 'going in and out, and 
 the bill was in such a situation that he must have seen it ; Erie, J., 
 held that it was admissible. ' If it is evidence against any one of 
 
 (0 Reg. r. Lacy, 3 Cox, C. C. 5ir. the point. Sec post, p. 150. 
 riatt, B., and Williams, J., who con- (J) Ibid. 
 
 sidered Kc^. r. Frost, and R.x r. Hunt {1-) Eeg. v. Duffidd, 5 Cox, C. C. 
 
 expressly iu point, and refused to reserve 404.
 
 CHAP. 11. ] 
 
 Evidence. 
 
 147 
 
 the defendants, it is admissible.' ' I believe it is admissible against 
 those in respect of whom I draw the inference that they saw it 
 in the window ; those in respect of Avhom it announces any inten- 
 tion. Green and Winters are the two that are named in it. It 
 purports to be an instrument by Peel, and I think there is evi- 
 dence before me, from which I am of opinion that Peel had seen 
 that instrument, and it is probable, by his not objecting to it, that 
 he permitted his name to be used to that instrument.' 'I am 
 clear that it is evidence as against one of the defendants, it beinj? 
 published in his name, and, according to the evidence, being pro- 
 bably seen by him.' (l) 
 
 Upon the trial of Blake on an information for a conspiracy with 
 one Tye to pass imported goods without paying the full duty, it 
 appeared that Tye acted as agent for the importer of the goods, 
 and Blake as landing-waiter at the Custom-house, and that it was 
 Tye's duty to make an entry describing the quantity and particu- 
 lars of the goods necessary to determine the amount of duty. This 
 entry is called the Perfect Entry, which is left at the Custom- 
 house, and the particulars are there copied into the Blue-book, 
 which was delivered to Blake, the landing-water, whose duty was 
 to examine the goods, and, if he found them correspond with the 
 particulars in the Blue-book, to write ' Correct ' across the Pei-fect 
 Entry, whereupon the goods would be delivered to the importer 
 upon payment of the duties so ascertained. The goods wei'e passed 
 to Tye, the duty having been paid on the Perfect Entry made out 
 by Tye, which corresponded with the entry in the Blue-book. It 
 was then proposed to put in Tye's Day-book, and to show by Tye's 
 own entry therein that the quantity of goods Vy'as much larger than 
 appeared by the Perfect Entry and Blue-book, and that tlie im- 
 porter had been charged the duties by Tye on such larger amount, 
 and had paid them accordingly. It was objected for Blake — Tye 
 not being on his trial — that the entry in Tye's book was not evi- 
 dence against Blake ; but Lord Denman, C. J., admitted the 
 evidence ; and the Court of Queen's Bench held, on a motion for 
 a new trial, that the Day-book was evidence of something done in 
 the course of the transaction, and was properly admitted as a step 
 in the proof of the conspiracy, {ni) Evidence was given, in the 
 same case, to show that a cheque drawn by Tye for a certain sura, 
 and dated after the goods were passed, had been cashed, and the 
 proceeds traced to Blake. It was then proposed to put in evidence 
 the counterfoil of the cheque in Tye's cheque-book, on which Avas 
 Avritten an account showing that the cheque was drawn for a sum 
 amounting to half the profit arising from transactions, including 
 the alleged fraud on the revenue, as manifested by the several 
 items in that account. To this evidence a similar objection was 
 taken, but Lord Denman, C. J., admitted it. The Court of Queen's 
 Bench, however, held that the evidence ought not to have been 
 admitted. The conspiracy to defraud the customs had been carried 
 into effect before the cheque was drawn ; and the writing on the 
 counterfoil was in effect a declaration by Tye for what ]iurpose he 
 had drawn the cheque, and liow the money was to be njipliod. 
 
 On an indict- 
 ment for a 
 conspiracy to 
 pass imported 
 goods without 
 paying the full 
 duty, an entry 
 made by one 
 of the defen- 
 dants in the 
 course of 
 passing the 
 goods is 
 admissible 
 against the 
 other ; but an 
 entry on the 
 counterfoil of 
 a cherjue after 
 the conspiracy 
 has been car- 
 ried out is not 
 so admissible. 
 
 (/) Reg. r. Rowlajuls, 5 Cox, V. C. 
 436. It does not appear that this ruling 
 was questioned in the Court of Queen's 
 
 Bench. 
 
 (»i) Reg. V. Blake, 6 Q. P.. li
 
 143 
 
 Kxnmination 
 of one ilcfcii- 
 (Innt ndinillcil 
 ^((ikiiixt liiin- 
 hclf iiKinc. 
 
 Of Compiracy. 
 
 [book v. 
 
 Troof of the 
 conspiracy. 
 
 It is not ne- 
 cessary to 
 prove the 
 actual con- 
 Bpiracy, but 
 it may be 
 inferred from 
 the acts of 
 the parties. 
 
 Now III) (l.chir.'ihoii of Tyc could he received in evidence against 
 ]?lakc, wliidi was made in Blake's absence, except it related to the 
 furthcranco of the common ohject ; which this did not. {ri) 
 
 On an indictment for conspiracy to defraud the shareholders of 
 the British IJank hy falsely representint,^ its affairs to Ik- prosper- 
 ous the examination of one of the defendants, which had heen 
 takc'U on a jjctition for winding up the bank after the date of the 
 alleged conspiracy, was tendered in evidence. This examination 
 showed that this defendant was aware of the insolvency of the 
 bank, and alleged that the other directors had the same know- 
 led'i-c. It was objected that this examination was not evidence of 
 any act done in furtherance of the ccmspiracy ; and that it was not 
 admissible until the other defendants weie connected with this 
 defendant in the conspiracy. But Lord Campljell, C. J., (after con- 
 sulting the other judges of the Queen's Bench), said, 'We are all 
 of opinion that the deposition is admissible against this defendant, 
 as tending to show his knowledge before and at the time of his 
 committing the overt act, but not as against the other defendants. 
 Therefore only such parts should be read as refer to the deponent 
 alone.' (o) 
 
 The evidence in support of an indictment for a conspiracy is 
 generally circumstantial ; and it is not necessary to prove any direct 
 concert, or even any meeting of the conspirators, as the actual fact 
 of conspiracy may be collected from the collateral circumstances 
 of the case. (2>) Although the common design is the root of the 
 charo-e, yet it is not necessary to prove that the defendants came 
 together, and actually agreed in terms to have the common design, 
 and to pursue it by common means, and so to carry it into execu- 
 tion, because in many cases of the most clearly established conspi- 
 racies there are no means of proving any such thing, {q) If, there- 
 fore, two persons pursue by their acts the same object, often by 
 the same means, one performing one part of an act, and the other 
 another part of the same act, so as to complete it, with a view to 
 the attainment of the object they were pursuing, the jury are at 
 liberty to draw the conclusion that they have been engaged in a 
 conspiracy to effect that object. (/•) It is a mi.stake to say that a 
 conspiracy must be proved before the acts of the alleged conspira- 
 tors can be given in evidence. It is competent to prove insulated 
 acts as steps by which the conspiracy itself may be established, (.s) 
 And in a late case the jury were told that it does not happen once 
 in a thousand times when the offence of conspiracy is tried that 
 anybody comes before the jury to say that he was present at the 
 time when the parties did conspire together, and when they agreed 
 to carry out their unlawful purposes ; that species of evidence is 
 hardly ever to be adduced before a jury ; but the unlawful conspi- 
 racy is to be inferred from the conduct of the i:)arties ; and if 
 several men are seen taking several steps, all tending towards one 
 obvious purpose, and they are seen through a continued portion of 
 time taking .steps that lead to one end, it is for the jury to say 
 
 {n) Eeg. r. Blake, supra, 
 {o) Reg. V. Esdaile, 1 F. & F. 213. 
 (p) Rex r. Pai-sons, 1 Black. R. 302. 
 (qs Per Coleridge, J., Reg. v. Murphy, 
 8 C. & r. 297. Reg. r. Brittain, 3 Cox, 
 
 C. C. 7C. per Coltman, J. 
 
 {)■) Per Coleridge, J., Reg. r. llur]>hy, 
 supra. 
 
 (5) Per Alderson, B., Ford r. Elliott, 
 4 Exch. R. 7S.
 
 CHAP. II.] Evidence. 149 
 
 whether those persons had not combined together to bring about 
 that end, which their conduct appears so obviously adapted to 
 effectuate, (t) In a case where a husband, wife, and their servants, 
 were indicted for a conspiracy to ruin the trade of the prosecutor, 
 who was the King's card-maker, the evidence against them was, 
 that they had at several times given money to the prosecutor's 
 apprentices to put grease into the paste, which had spoiled the 
 cards ; but there was no account given that ever more than one at 
 a time was present, though it was proved they had all given money 
 in their turns ; it was objected that this could not be a conspiracy, 
 on the ground that several persons might do the same thing, with- 
 out having any previous communication with each other. But it 
 was ruled that the defendants being all of a family, and concerned 
 in making of cards, it would amount to evidence of a conspiracy, {ii) 
 And it appears also to have been considered that if a banker per- 
 mits a sum of money to be lodged at his house, to be paid over for 
 corruptly procuring an appointment under government, he may be 
 indicted for a conspiracy along with those who are to procure the 
 appointment, and receive the money, (v) 
 
 Every person concerned in any of the criminal parts of the trans- Persons join- 
 action alleo^ed as a conspiracy may be found guilty, thouo'li there ^°° ^^.*^^' *^.^ 
 
 . .. Ot/' o consDir3,cv is 
 
 be no evidence that such persons joined in concerting the plan, or formed, 
 that they ever met the others, and though it is probable they never 
 did, and though some of them only join in the latter parts of the 
 transaction, and probably did not know of the matter until some 
 of the prior parts of the transaction were complete, (w) So that if Persons meet- 
 several persons meet from different motives, and then join in ing for one 
 effecting one common and illegal object, it is a conspiracy, {x) ^"rdrcon-*^^^" 
 Where, therefore, upon an information for a conspiracy to ruin spiring for 
 Macklin, the actor, in his profession, it was objected that in sup- another. 
 port of the prosecution evidence should be given of a ^^rei'ious 
 meeting of the parties accused for the purpose of confederating to 
 carry their object into execution ; Lord Mansfield, C. J., overruled 
 the objection, saying, that if a number of persons met together for 
 different purposes, and afterwards joined to execute one common 
 purpose, to the injury of the person, property, profession, or charac- 
 ter of a third party, it was a conspiracy, and it was not necessary 
 to prove any previous consult or plan among the defendants against 
 the person intended to be injured, (jj) 
 
 It appears to have been held that upon a,n indictment for a con- General evi- 
 spiracy, where, from the nature of the case, it would be difficult to '•*^"<^<^ °^ *^'° 
 prove the privity of the parties accused, without first proving the couspiraey. 
 existence of a conspiracy, the prosecutor may go into general evi- 
 dence of its nature, before it is brought home to the defendants. 
 The indictment charged the defendants, who were journeymen 
 shoemakers, with a conspiracy to raise their wages ; and evidence 
 was offered on the part of the prosecution of a plan for a combina- 
 tion amongst the journeymen shoemakers, formed and printed 
 several years before, regulating their meetings, subscriptions, and 
 
 {t) Per Erie, J., 1kg. v. DuHield, 5 Coleridge, J. 
 
 Cox, C. C. 404. (x) Uex r. Lee, 2 Stark. Kvid. 324. 
 
 («) Rex v. Cope, 1 Str. 144. (2/) Lee's ca.se, 2 M'>}allv, Evid. 6:14, 
 
 (f) Rex V. rolliiian, 2 Campb. 233. (is cited Ko.sc. Cr. Evid. 385. H. P. per 
 
 (w) Rex V. Lord Grey, 9 St. Tri. ("oleridge, J. Reg. ?-. Murphy, 8 C. & P. 
 
 127. Reg. V. Murphy, 8 C. & P. 297, 2l»7. Sec auff, p. 1 ] 0, note l^-)-
 
 150 
 
 Of Conspiracy. 
 
 [book v. 
 
 Either course 
 may l»c 
 ailoptoi.1. 
 
 Cumulative 
 instauces of 
 fraud per- 
 
 otlior matters for tlioir nuitual government in forwarding tlu-ir de- 
 Hi<MiH. 'I'liis ovidence was o])jected to l>y the counsel for the defend- 
 ant; hut Lord Kenyon, C. J., said, tliat if a general conspiracy 
 existed, general evidence might l)e given of its nature, and the 
 con<luct of its memhcrs, so as to implicate men who stood charged 
 with acting upon the terms of it years after those tciTns had been 
 estal)lished, and who might reside at a great distance from the 
 l)lace where the general plan Avas carried on ; and his Lordship, 
 therefore, permitted a person, who was a member of this society, 
 to prove the printed regulations and rules of the society, and that 
 he and others acted under them, in execution of the conspiracy 
 charged upon the defendants, as evidence introductory to the piroof 
 that they were members of such society, and equally concerned ; 
 but he observed, that it would not be evidence to affect the defend- 
 ants until they were made parties to the same conspiracy, {z) And 
 in several important cases, evidence has been first given of a 
 general conspiracy, before any proof of the particular part which 
 the accused parties have taken, (a) 
 
 It has also been held that the prosecutor may either prove the 
 conspiracy which renders the acts of the conspii-ators admissible 
 in evidence, or he may prove the acts of the different persons, and 
 thus prove the conspiracy. Where, therefore, a party met, which 
 was joined by the prisoner the next day, it was held that directions 
 given by one of the party on the day of their meeting as to where 
 they were to go and for what purpose, were admissible, and the 
 case was said to fall within Rex v. Hunt, (6) where evidence of 
 drilling at a different place two days before and hissing an ob- 
 noxious person was held receivable, (c) 
 
 But after such general evidence has been received the parties 
 before the court must be affected for their share of it. And it 
 seems that mere detached declarations and confessions of persons 
 not defendants, not made in the prosecution of the object of the 
 conspiracy, are not evidence to prove its existence, although con- 
 sultations for the purpose, and letters Avritten in prosecution of the 
 design, but not sent, are admissible. (cZ) It results from the prin- 
 ciples already stated, and it has been observed as a conclusion to 
 which they lead, that it seems to make no difference as to the ad- 
 missibility of the act or declaration of a co-conspirator against the 
 party defendant before the Court, whether such co-conspirator be 
 indicted or not, or tried or not with the defendant, {e) The 
 evidence is admitted on the ground that the act or declaration of 
 one is the act or declaration of both when united in one common 
 design. 
 
 Where the indictment charged the defendants with conspiring 
 to cause themselves to be believed persons of large property for 
 
 (i) Eex V. Hammond, 2 Esp. N. P. Vx. 
 718. Lord Keuyon rcfcn-ed to the cases 
 of the state trials in the year 1745, where 
 from tlic nature of the charge it was ne- 
 cessary to go into evidence of what was 
 going on at Manchester and in France, 
 JScotland, and Ireland, at the same time. 
 
 (a) Lord Stafford's case, 7 St. Tr. 
 1218. Lord W. Paisseirs case, 9 St. Tr. 
 57S. Lord Loyat's case, 18 St. Tr. 530. 
 
 Hardy's case, 24 St. Tr. 129. Home 
 Tooke'scasc, 25 St. Tr. 1. 
 
 {b) 3 B. & Aid. 566. 
 
 (<•) Reg. r. Frost, 9 C. & P. 129. 
 Tindal, C. J., Parke, B.,and ^Villiams, J. 
 
 (d) 2 Stark. Evi.l. 327. 
 
 ('•) 2 Stark. Evid. 329. See jmt. Evi- 
 dence, for further points as to the evidence 
 in cases of conspirac}'.
 
 CHAP. II.] 
 
 Evidence. 
 
 151 
 
 tlie purpose of defrauding tradesmen, evidence was given of their 
 having hired a house in a fashionable street, and represented 
 themselves to one tradesman employed to furnish it as people of 
 large fortune ; and then a witness was called to prove that at a 
 different time they had made a similar representation to another 
 tradesman. The evidence of this witness was objected to on the 
 ground that it was not competent to the prosecutor to prove 
 various acts of this kind, and that he was bound to select and 
 confine himself to one. But Lord Ellenborough, C. J., said, 
 ' This is an indictment for a consjjiracy to carry on the business 
 of common cheats, and cumulative instances are necessary to prove 
 the offence. (/) And, in a similar case, the same course was 
 allowed as to acts done both in and out of the county where the 
 indictment charged the conspiracy to have been, {g) 
 
 But where a count alleged that the defendant and others did 
 conspire to defraud J. Donkersley and others of certain goods, 
 and that in pursuance of the said conspiracy the defendant did 
 falsely pretend to the said J. D. that he was a merchant of the 
 name of Grantham, carrying on business at Leeds and Hudders- 
 field ; and in further prosecution of the said conspiracy, and 
 under colour of a pretended contract with the said J. D. for 
 the purchase of certain cloth of the goods of the said J. D. and 
 others, did obtain possession of a large quantity of cloth of the 
 goods of the said J. D. and others, from the said J. D., with intent 
 to cheat the said J. D. and others, to the great damage of the said 
 J. D. and others ; and it appeared that J. D. had partners ; and 
 evidence was given to show an intended fraud upon that firm ; 
 and it was also proposed to give evidence of attempts made by the 
 defendant to defraud other persons, as well as the firm of J. D. 
 and Co., of their goods : it was objected that the word ' others ' 
 must be taken to mean others the partners of J. D. ; that where 
 the goods were stated to be the goods of J. D. and others, it could 
 only mean others his partners, and the word could not have one 
 meaning at one part of the count, and another at anotiier part of 
 the same count. The evidence was received ; but, upon a case 
 reserved, the judges held the conviction wrong. {It) 
 
 In the case of a conspiracy to raise the price of the public 
 funds by false rumours, it was holden that the court will take 
 judicial notice that a war exists between this country and a 
 foreign state, such war having been recognized in different Acts 
 of Parliament ; and, therefore, that ^an allegation to that effect 
 need not be proved, (i) 
 
 Where an indictment alleged that the defendants conspired 
 falsely to accuse the prosecutor of having feloniously forgetl a 
 cheque for the payment of 178?,, and that in execution of such 
 conspiracy a letter was written by one of the defendants, in which 
 
 mitted to be 
 given iu 
 evidence. 
 
 In an indict- 
 ment for con- 
 spiring to 
 defraud D. 
 and others, 
 wliich charges 
 the obtaining 
 the goods of 
 D. and others, 
 the word 
 others means, 
 liartners of D., 
 and evidence 
 of attempts to 
 defraud per- 
 sons not the 
 partners of 
 D. is inad- 
 missible. 
 
 The court 
 will ti\ke judi 
 cial Jiotice of 
 
 ITpon an in- 
 dictment for 
 conspiring to 
 accuse of 
 forging a 
 
 (/) Rex V. Eobertg, 1 Caiiipb. 399. 
 Ante, p. 120, 
 
 {(j) Keg. V. Whitehousc, MSS. C. S. G. 
 6 Cox, C. C. 38. 
 
 (A) Reg. V. Steel, 2 M. C. C. R. 246, 
 C. & M. 337. No ground for tlu- decision 
 is stated, but Lord Alnngcr said at the 
 close of the arguiiicut, 'I tliink tlio 
 counsel for the delcudaut is right in say- 
 
 ing that the word "others " must have 
 the samo meaning in the earlier part of 
 the count as in the latter part of it ; and 
 with respect to the property of the goods, 
 it must mean tlnit they were the goods 
 of .1. D. and his partners.' 
 
 (i) Hex V. Do IJcrcnger, 3 ]\[. & S. 07. 
 Ante, p. 116.
 
 152 
 
 clioqtic, liol*! 
 
 «iniR'cc»HJiry 
 to proiliico 
 tlio ihc<iuo. 
 
 (>J CoitspirCtcy. 
 
 [book v. 
 
 Evidence of a 
 conspiracy to 
 defraud by 
 representing a 
 person to be 
 in opulent 
 circumstances. 
 
 lie stattMl tliiil lie liad been oiriployofl to iiivnstijjato tlio circum- 
 stiiiiccs atfoiKliiij^ tlie forging of" a clie(|U(; for 17H/., and proof was 
 given (»f tlio Icttc^r, and also of conversations referring in like 
 manner to a clie(|ue, wliicli the defendants charged the prosecutor 
 Avitii having forged, ])ut the chec[uc itself was not produced ; it 
 was objecLed that the cheque was so incorporated with the evi- 
 dence, that the prosecutor was not entitled to prove the conver- 
 sations without ])roducing the cliequc, to which they referred, 
 wiiicli it appeared from the evidence was in existence, and in the 
 possession of the defendants. Lord Tenterden, C. J., was, how- 
 ever, of opinion that it was not essential to prove the contents of 
 the cheque or to produce it, but that it was enough to take the 
 conversations as tiiey passed. And the Court of King's Bencii, 
 upon a rule to show cause why tliere should not be a new trial, 
 lit 'Id that it was not necessary to produce the cheque. The whole 
 of the charge against the defendants was founded on the letter set 
 out in the indictment, which was written by one of the defendants 
 upon the application of the other ; and they having taken upon 
 themselves to treat as an existing thing a cheque for 178^., it was 
 not necessary, on the part of the prosecutor, to produce it in 
 evidence, even although it appeared that it actually exi.sted. But 
 it might bo a fabrication on their part : there might be no such 
 cheque, and then it could not be produced, {j) 
 
 A count alleged that the defendants, a husband, wife, and 
 daughter, being in low and indigent circumstances, conspired to 
 cause the husband to be reputed and believed to be a person of 
 considerable property, and in opulent circumstances, for the pur- 
 pose and with tlic intent of cheating and defrauding divers trades- 
 men who should bargain with them for the sale to the husband of 
 goods, the property of such tradesmen, of great quantities of such 
 goods, without paying for the same. The wife and daughter 
 usually were together, and on some occasions represented that 
 they Avere in independent circum.stauces, their income being 
 interest of money coming in monthly, and in others the wife 
 had said her husband was in independent circumstances. These 
 statements were made in the absence of the husband ; but it was 
 proved that he either occupied the lodgings which were hired 
 under these representations, or that the goods were delivered at 
 the places where all the defendants lodged. Piatt, B., is reported 
 to have held that there was no evidence of any conspiracy to 
 represent the husband as a person of considerable property, (/t) 
 Another count alleged the conspiracy in the same manner as the 
 preceding, but charged the intent to be to defraud persons who 
 should let the husband lodgings for hire, of divers large sums of 
 money, being the sums agi'eed to be paid for the hire of such 
 lodgings ; and Piatt, B., is reported to have held that this count 
 was not supported, as well on the ground on which the preceding 
 count was not supported, as because the object of the defendants 
 was to obtain possession of the lodgings, and to deprive the land- 
 lord of the use of the rooms, but not to deprive him of the price, 
 which was only incidental to their occupation. They had no 
 
 (j) Rex V. Altlridge, 1 X. k M. 77(5. 
 {k) Keg. V. "\Vhitelious<>, 6 Cox, C. C. 38.
 
 CHAP. II.] Evidence. 153 
 
 object in depriving him of the profits of the rooms, apart from 
 their own occupation of them. {I) 
 
 Two counts of an indictment charged the defendants with con- A count for 
 spiring to obtain from the prosecutor certain bills of exchange "^^^^P"?"^' *®, 
 accepted by him, amounting to a large sum of money, and to cheat his acceptances 
 and defraud him of the proceeds of the said bills ; other counts is proved, 
 charged a conspiracy to defraud the prosecutor of his monies. |'?['"sh the 
 Evidence was given to show the obtaining of the acceptances, but b,.ouc'ht ready 
 it appeared that the prosecutor had not parted with any money, prepared by 
 and there was no reason to suppose that he intended to take up *''® conspira- 
 the acceptances, and it was not shown that the bills which he only accepts 
 accepted were ever in his hands, except for the purpose of his them, 
 writing his acceptances, they having been brought to him com- 
 plete, except as to his signature. The jury having found the A count for 
 defendants guilty on these counts, the verdict was impeached as conspiring to 
 unsupported by the evidence, because the charge was of a con- his monies" 
 spiracy to obtain acceptances from the prosecutor, whereas he may be 
 proved that the acceptances were ready written, and in possession f,'°^^',^' » i, 
 of the defendants, or some of them, and nothing was sought but no money or 
 his signature ; but the Court of Queen's Bench thought that this apparent 
 was substantially the same thino-. It was only by the si<rnature J'^^^P'* °^ °^" 
 of the prosecutor that the bills became complete ; and his accept- ° '' 
 
 ance when given, being without any consideration, was at the 
 instant his, and in his possession. It was also urged that the entire 
 transaction, as proved by the evidence, was at variance with the 
 indictment, as all parties well knew that the prosecutor had no 
 money, nor could be defrauded of any ; and that the real fraud 
 was on the prosecutor's part, to the prejudice of some expected 
 lender of the sums mentioned in the bills, in return for accept- 
 ances of no value. But the court held that, though there mioht 
 be some ground for this imputation on the prosecutor, yet it 
 would not disprove the fraud practised upon him, by inducing 
 him to accept bills without a corresponding advance of cash. 
 Though there was little appearance of solvency in the prosecutor, 
 those who fraudulently induced him to incur the liability must 
 have speculated on some pecuniary advantage from it ; and though 
 the money could in such case only have come from his respectable 
 friends, as he had no funds of his own, the money intended to 
 be so procured might well be described for this purpose as his 
 money, {m) 
 
 Tiie expression 'false pretences' as used in indictments for .A[caning of 
 conspiracy is not construed in the technical sense in whicii it is *■'« expression 
 in indictments for obtaining property by false pretences, (u) tcnces.'"^*^ 
 Where, therefore, a count charged the defendants with a con- 
 spiracy by divers subtle means and false pretences to obtain 
 goods, it was held that an actual false pretence need not be proved 
 
 {I) Ivcg. r. Wliiteliouse, 6 Cox, C. C. frauds together ; but the conspiracy 
 
 38. I was counsel for tlie crown in tliis couhl only be inferred from a groat 
 
 case, and my recollection of it is tliat umiihi'r of isolated acts, in none of 
 
 the case went to the jury on all the whirli were all of the prisoners engaged, 
 
 counts. The main question in the case C". S. tt. 
 
 was whether every representation made (m) Reg. v. Gompertz, Q. 11. S24. 
 
 was the representation of all. The \n\- (h) Keg. v. Hudson, lU-U, (.'. C. 2(33, 
 
 soners came to the town togetlier, lived ante, p. 121. 
 together, and enjoyed the Iruits of their
 
 154 
 
 0)>Uii)it)g 
 
 niilway 
 
 tickolH. 
 
 Of Conspiracy. 
 
 [book v. 
 
 Eviilcncc of 
 loss of profits. 
 
 Record of 
 acquittal. 
 
 Divisible 
 averment. 
 
 Questions in 
 favour of the 
 defendants. 
 
 imdor tlii.s count, in the same manner as if it liad been a count for 
 ubtainin;.f property by false pret(;nce.s. (o) 
 
 Al).solon and Clark were indicted for con.spiring to defraud a 
 railway company l^y obtaining excursion tickets not transferable, 
 and .selling tlieni to others. Absolon had sold the excursion 
 tickets to Clark at Brighton, and Chirk attempted to use them 
 for the purpose of sending back to London some children. It 
 did n(*t appear iiow Absolon got tiie tickets ; he had otliers in his 
 j)ossession. Wightman, J., left it to the jury to determine 
 wiiether the prisoners did concert together that the tickets 
 should be obtained and used for the purpose of defrauding the 
 company. (2>) 
 
 On an indictment for a conspiracy to cause tinplate-workers 
 to leave their employment, it appeared that the prosecutors, in 
 consequence of their workmen leaving their service, had employed 
 Frenchmen ; and Eric, J., held that it was not competent to prove 
 how much the firm had lost by these Frenchmen, as the amount 
 of loss by any particular set of workmen was clearly unconnected 
 with the issue Avhether there was a conspiracy or not ; but that 
 the sum total of the loss might be proved ; for the very issue in 
 the matter was the intention to obstruct the business, and the 
 result of the operations was a relevant fact as to that, {q) 
 
 Where one of several defendants charged with a conspiracy has 
 been acquitted, the record of acquittal is evidence for another 
 defendant subsequently tried, (r) 
 
 Where an indictment charged that the defendant with divers 
 others did conspire to prevent the workmen of one J. G. from 
 continuing to work in a colliery ; Patteson, J,, held, that a con- 
 spiracy to procure the discharge of any of the workmen would 
 support the indictment, which did not necessarily lay the intent 
 as to all the workmen, {s) 
 
 . On an indictment for a conspiracy to induce tinplate-workmen 
 to leave their employment, it appeared that three of the defendants 
 had come down by invitation from the tinplate-workers' associa- 
 tion, and had held meetings with the workmen ; and Erie, J., 
 allowed a witness for the defence to be asked, ' With reference to 
 hired men and apprentices, persons under contract to their em- 
 ployers, what advice did these defendants give to the men ? ' and 
 also ' Whether the witness ever heard them either u.se any intimi- 
 dating language or threats, or recommend force of any kind 1 ' (t) 
 
 Two persons were indicted for felony, in attempting to poison 
 A. B., by administering certain poisonous ingredients, as set forth 
 in the indictment. At the same time, an indictment was found 
 against them for a conspiracy to poison the same individual by the 
 same means. On the trial of the first indictment, the prisoners 
 were acquitted, there being no proof that the ingredients were 
 poisonous. Parke, J., thereupon directed an acquittal for the 
 conspiracy also, there being no other proof of a conspiracy to poison 
 
 (o) Eeg. V. Wliitehoiise, 6 Cox, C. C. 
 38. riatt, B. 
 
 {p) Keg. V. Absolon, 1 F. & F. 498. 
 
 iq) Reg. r. Rowlands, 5 Cox, C. C. 
 ■13(>. All the counts ended ' to the great 
 damage' of the prosecutors. See jpost, p. 
 171. 
 
 {)•) Rox V. Home Tooke, 1 Chitty, 
 Burn. 823, scd quccre. See note, ank, p. 
 127. 
 
 (s) Rex V. Bykerdykc, 1 M. k Rob. 
 17P. 
 
 (0 Eeg, V. Rowlands, 5 Cox, C. C. 
 436.
 
 CHAP. II.] 
 
 Variance in Proof. 
 
 than that by which it was attempted to establish the felony, viz., 
 that the ingredients were poisonous, (n) 
 
 Where an indictment against A., B., C, and D., charged that 
 they conspired together to obtain, ' viz., to the use of them the 
 said A., B,, and C, and certain other persons to the jurors un- 
 known,' a sum of money for procuring an appointment under 
 government ; and it appeared that D. (although the money was 
 lodged in his hands, to be paid to A. and B. when the appoint- 
 ment was procured), did not know that C. was to have any part 
 of it, or was at all implicated in the transaction ; it was holden, 
 that the averment concerning the application of the money was 
 material, though coming under a viz. : and that as to D., the con- 
 spiracy was not proved as laid, (v) 
 
 Where an indictment for a conspiracy to procure false witnesses 
 on the trial of an ejectment, at the great sessions for the county 
 of Glamorgan, stated that at the general sessions of our Lord the 
 King, holden, &c., an action of ejectment was depending, in which 
 action J. Doe, on the demise of W. Bees and D. Terry, was the 
 plaintiff, and B. Thomas and T. Beavan the defendants, and it ap- 
 peared that the ejectment was brought on a joint and two several 
 demises of Bees and Terry ; it was held, first, that the descrip- 
 tion of the sessions was erroneous, as it should have been at the 
 great sessions ; secondly, that there was a variance between the 
 action described in the indictment and the action proved to have 
 been pending, (iv) 
 
 Where the defendants were indicted for a conspiracy to cheat 
 any person whom they should deal with, and the conspiracy jDroved 
 was to cheat. A., B., and C. ; Parke, B., thought the offence differ- 
 ent, and directed an acquittal, (x) 
 
 Where an indictment for a conspiracy stated in the inducement 
 that the defendants knew that the parties conspired against Averc 
 the proprietors of certain licensed stage carriages, and as such 
 proprietors liable to certain penalties, in which the drivers of such 
 carriages should be convicted of any offence committed by the 
 said drivers, against ' a certain Act of Parliament made and 
 passed in the second and third years of the reign of his present 
 Majesty, intituled, &c.' (setting out the title correctly) ; and that 
 the defendants unlawfully conspired falsely to exhibit a certain in- 
 formation charging, &c., contrary to the form of the statute in 
 such case made and provided ; the judgment Avas arrested, on the 
 ground that a statute cannot be pleaded as made in two years ; for 
 in law an Act cannot be made in two years. (?/) 
 
 Where the counts in an indictment for a conspiracy are framed 
 in a general form, the judge will order the prosecutor to furnish 
 the defendants Avith a particular of the charges upon which he 
 means to rely, and such particular ought to be so framed as to 
 give the defendants the same information as Avould be given by a 
 
 155 
 
 Averment as 
 to one of the 
 consjnrators 
 not proved. 
 
 Variance. 
 
 Variance. 
 
 Misdescription 
 of a statute 
 in an indict- 
 ment for 
 conspiracy. 
 
 Particulars of 
 the charges 
 intended to be 
 relied upon. 
 
 {u) Maiulsley's case, 1 Lew. 51. 
 
 (v) l!ex V. roUnian, 2 Cani])l). 231. 
 
 {10} Rex V. Thomas, 1 C. & P. 472, 
 Park, J. A. J. 
 
 {x) Anonymous, mentioned by Parke, 
 B., in Reg. r. King, 7 (>. 15. 798. 
 
 (y) Ke.\r. Biers, 1 A. & E. 327. The 
 
 correct statement is ' a certain statute 
 made and jmsscd in a session of Parlia- 
 ment, held in the tirst and second years 
 of the reign of King William the Third.' 
 PerPatteson, J., ibid. Gibbs r. Pike, 8 
 M. & W. 223. S. P.
 
 156 
 
 Of Conspiracy. 
 
 [book v. 
 
 EviiltMu'c iiil- 
 luittotl, tlioujili 
 parliouliirs 
 ]in*l not livun 
 dflivcrcil. 
 
 At'iinittal of 
 feonu." iif tlic 
 di.'ft'iul;iiit.s. 
 
 Election. 
 
 Conspiring to 
 commit a 
 stiitutory 
 offeucc. 
 
 Change of 
 venue. 
 
 Point respcct- 
 inj; cross- 
 examination 
 •where one 
 defendant 
 only calls 
 witnesses. 
 
 epccial count : but it need not .state the specific .acts the defend- 
 ants arc cliarged with liaving done, or the times or places at which 
 such act.s arc alk'j^ed to have taken place, {z) But where a count 
 alleges overt acts, the Court will not order particulars to be de- 
 livcr(!(l, where there i.s no affidavit on the part of the defendant 
 that he has no Unowlcdjife of the overt acts char<.(ed, and does not 
 ])osscss sulficicnt information to enal)le him to meet them, (n.) 
 
 In the Ihitish Bank case an order had been made on the first 
 day of the trial that particulars of (Jamcron'sdebt, which was stated 
 to be .'ifi.OOO/., should be delivered to him ; and it was objected 
 that until the particulars liad l)een given that case could not be 
 gone into. It was answered tliat Cameron had had access to the 
 accounts for some months ; and Lord Campbell, C. J., held that 
 the crown could not be precluded from giving evidence on that 
 part of the case. (6) 
 
 Upon the trial of an indictment for a conspiracy, tlie coun.sel for 
 the pro.secution has a right, before opening his ca.se, to have any 
 of the defendants acquitted, in order that he may call them as 
 witnesses, and the counsel for the other defendants has no power 
 of objecting to this being done, (c) 
 
 Wliere an indictment contained counts for a conspiracy and 
 counts for a libel contained in a hand-bill, and there was no evi- 
 dence to affect one of the two defendants as to the libel ; Cole- 
 ridge, J., at the close of the case for the prosecution, put the 
 prosecutor to elect upon which charge he Avould go before the de- 
 fendants' counsel entered upon the defence. ('/) 
 
 As conspiracy is an offence at common law, if parties conspire 
 to commit an offence created by statute, they may be indicted for 
 such conspiracy, although the statute be repealed before the in- 
 dictment is preferred, {e) 
 
 The Court of King's Bench have refused to change the venue 
 in an indictment for a conspiracy to destroy foxes and other ver- 
 min, on the ground that the gentlemen who were likely to serve 
 on the jury to try the indictment were much addicted to fox- 
 hunting. (/) 
 
 In one case, a point arose as to the extent to which the 
 counsel for the prosecution in a case of conspiracy might cross- 
 examine a witness, called by only one of several defendants. The 
 indictment was against A., B., and C. ; and after the case for the 
 prosecution was closed, C. only called a witness, whom he ex- 
 amined as to a conversation between himself and A. ; and it was 
 ruled, that the counsel for the prosecution might cross-examine 
 
 (c) Pvcx r. Hamilton, 7 C. c<c P. 44S. 
 Littlcdale, J., after consulting several of 
 the other judges. IJeg. v. llycroft, (3 
 Cox, V. C. 7G. "Williams, J., Reg. v. 
 Probcrt, Dears. C. (.'. 32 {a). In anony- 
 mous, 1 t'hitty, tiOS, the Court of Kini,''s 
 IJcncli refused to order such particulars 
 to l>c given on motion, but intimated that 
 tlie correct course was to apply to the jiro- 
 sccutor to give somt; information as to the 
 ]>articulars, upon which he meant to rely 
 in support of the indictment, and if he 
 refused, then an a])plication might be 
 made to postpone the trial in order that 
 
 the ("[uestion might be more maturely dis- 
 cussed. From which it is to be inferred 
 that the motion had been made without 
 any previous application for particulars 
 to the prosecutor. C. S. G. 
 
 («) Keg. V. Stapylton, 8 Cox, C. C. 
 69. 
 
 (b) Keg. r. Esdaile, 1 F. & F. 213. 
 
 (c) Ke.\ r. Rowland, K. & ^l. N. P. K. 
 401, Abbott, C. J. 
 
 (d) Keg. V. ilurphy, 8 C. & P. 297. 
 
 (e) Reg. V. Thompson, 16 Q. B. 832; 
 R. V. Bunn, 12 Co.x, C. C. 316. 
 
 {/) Kcx r. King, 2 Chitty Rep. 217.
 
 CHAP. II.] Verdict. 
 
 such witness as to any other conversation between A. and C, 
 although the evidence should tend chiefly to criminate A. (g) 
 
 If upon an indictment for conspiracy, the jury find the defend- 
 ants guilty of so much of the indictment as amounts to a misde- 
 meanor, the court may pass judgment upon the defendants. The 
 defendants were indicted for conspiring falsely to indict A. B. for 
 keeping a gaming-house, for the purpose of extorting money from 
 the said A. B., and the jury found the defendants guilty of con- 
 spiring to indict A. B., for the purpose of extorting money, but 
 not to indict him falsely ; and it was held that enough of the in- 
 dictment was found to enable the court to give judgment; for, in 
 criminal cases, it is sufficient for the prosecutor to prove so much 
 of the charge as constitutes an offence punishable by law ; and 
 the jury had found the defendants guilty of conspiring to prefer 
 an indictment for the purpose of extorting money, and that is a 
 misdemeanor, whether the charge were or were not false. (Jt) 
 
 Where a count alleged that the defendants conspired by divers 
 false pretences and subtle means and devices to extort from T. E. 
 a sovereign of his monies, and to cheat him of the same, and the 
 evidence failed to prove any false pretences ; it was held that an 
 indictable offence was charged without reference to the false pre- 
 tences, and therefore it was not necessary to prove the false pre- 
 tences, but it was sufficient to prove enough to sustain the rest of 
 the count, (t) 
 
 Upon an indictment for conspiracy containing eight counts the 
 jur}' found a verdict of guilty on six of the counts ; there was 
 only one conspiracy proved, but the evidence proved the alle- 
 gations contained in each count : it was objected in arrest of 
 judgment that each count charged a distinct conspiracy, and 
 therefore as many distinct conspiracies were found as there were 
 counts; but the Court of Queen's Bench held that the answer 
 was, that the evidence accorded with and proved the allegations 
 in each count, and the verdict was founded thereon ; and if any 
 count were objectionable, it must not be presumed that the 
 defendants would ever receive any sentence in respect of any such 
 count, (j) 
 
 Where a count contains only one charge of conspiracy against 
 several defendants, the jury cannot find one of them guilty of 
 more than one charge. Where, therefore, a count charged several 
 defendants with conspiring to do several illegal acts, and the jury 
 found one of them guilty of conspiring with some of the defend- 
 ants to do one of the acts, and guilty of conspiring with others of 
 the defendants to do another of the acts, it was lield by the House 
 of Lords that such finding was bad ; as it amounted to finding that 
 one defendant was guilty of two conspiracies, though the count 
 charged only one. (A;) So where a count charged eiglit defend- 
 ants with one conspiracy to effect certain objects, a finding that 
 
 157 
 
 If the jury 
 convict of so 
 much of a 
 couDt as 
 amounts to 
 an indictable 
 offence, 
 
 judgment ma^- 
 be passed ou 
 the defen- 
 dants. 
 
 Proof of part 
 of a count. 
 
 A verdict of 
 guilty may be 
 given on 
 several counts 
 if the evi- 
 dence prove 
 them, though 
 only one con- 
 spiracy be 
 shown. 
 
 Several find- 
 ings on one 
 charj^'c of con- 
 sjiiracy arc 
 bad. 
 
 (r/) Re.x r. Kroehl, 2 Stark, N. P. K. 
 343. 
 
 (h) Rex r. Hollingberry, 4 B. & C. 
 329. 6 L). & R. 345. 
 
 (i) Reg. V. Yates, G Cox, C. C. 441. 
 Crompton, J., after consulting Coleridge, 
 J. See Reg. v. Hudson, Bell, C. C. 263, 
 antr, p. 121. 
 
 (j) Reg. V. GompertT:, Q. 15. 824. 
 It should have breii added that it must 
 not be iircsumod that the court would do 
 more than impose a seutence for the one 
 oirencc. 
 
 (^•) O'Conncll v. Reg. 11 CI. & F. 
 155.
 
 158 
 
 Of Consiiiracy. 
 
 [book 
 
 A gciienil 
 ju(l^;iiuMit on 
 several couiitu, 
 Bome of wliioli 
 arc Imil, and 
 on otlici's of 
 which tho 
 verdict is bad, 
 is erroneous. 
 
 runishment. 
 
 Hard labour. 
 
 tlirco of tlio d('fon<lants arc giiilty generally, and that five of thorn 
 are guilty of (-(Jiisijiring to effect some, and not guilty a.s to the 
 re.siiluo of these ohjocts, was held to be bad and repugnant ; for 
 the finding that three were guilty Avas a finding that they were 
 guilty of cons])iracy with the other five to effect all the oljject.s of 
 the conspiracy; whereas, l)y the finding as to the five, it appeared 
 that those five were guilty of conspiring to eff'ect only some of 
 those objects. (/) 
 
 Where an indictment contains several counts, one of which is 
 bad, a general judgment for the crown, where the punishment is 
 not fixed by law, is bad ; and a bad finding on a good count is no 
 more a warrant for a judgment on that count than a bad count. 
 Where, therefore, an indictment for conspiracy contained some 
 good and some bad counts, and on .some of the good counts there 
 were bad findings, and there was a judgment against each de- 
 fendant that for * his offences aforesaid ' he should be imprisoned 
 for a certain term, it was held by the House of Lords that each 
 count must be considered as charging a separate offence, and that 
 the terms ' his off"ences aforesaid ' must be treated as extending to 
 all the counts on which he had been found guilty ; fmd as some of 
 the counts and some of the findings were bad, the judgment was 
 altogether erroneous, (m) 
 
 In former times, persons convicted of a conspiracy at the suit of 
 the King to accuse another person of a capital offence, were liable 
 to receive what was called the vi^?«)20Ms judgment, that is, to lo.se 
 their libercnn legem, whereby they were di.scredited and disabled 
 as jurors or Avitnesses ; to forfeit tlieir goods and chattels and 
 lands for life ; to have those lands wasted, their houses razed, 
 their trees rooted up, and their bodies committed to prison, (n) 
 But this judgment was not inflicted upon those who were con- 
 victed onl}^ of conspiracies of a less aggravated kind, at the suit of 
 the part}' : and for some time past it appears to have been the 
 better opinion, that the vilianous judgment is by long disuse 
 become obsolete, not having been pronounced for some ages ; and 
 that the punishment for conspiracies in general is, as in the case 
 of other misdemeanors, by fine, imprisonment, and sureties for the 
 good behaviour at the discretion of the Court, (o) 
 
 By the 14 & 15 Vict. c. 100, s. 29, whenever any person shall 
 be convicted of any conspiracy to cheat or defraud, or to extort 
 money or goods, or falsely to accuse of any crime, or to obstruct, 
 
 (I) O'Coiinell V. Eeg. 11 CI. & F. 155. 
 
 (m) Ibid. 
 
 {)i) 1 Hawk. r. C. c. 72, s. 0. 4 
 Black. Com. 136. 
 
 (o) Id. ibid. The pillory was also very 
 coniiiiouly a part of the puuishment until 
 such punishment was abolished bv the 
 56 Geo. 3, c. 138. See ali^o ante, p."^100, 
 note ip). In a case where the defen- 
 dants were contacted on an informa- 
 tion for a conspiracy to take away the 
 character of one Kempe, and accuse 
 him of murder, by pretended conver- 
 sations and communications with a 
 ghost that answered by knocking and 
 scratching in Cock-lane, &o., they re- 
 ceived the following judgment : Richard 
 
 Parsons (the father of the child, who 
 was the principal agent in the pretended 
 communication), to stand thrice in the 
 pillor)-, and be imprisoned two years ; 
 Eliz. Parsons, the mother, to be impri- 
 soned one year ; Mary Fraser, a servant, 
 who was aiding and assisting, was sent 
 to the house of correction to hard labour 
 t'oT six months ; Moore, the curate of the 
 parish, and one James, were discharged 
 on paying the prosecutor 300/. and his 
 costs, which were nearly as much more. 
 P.rowni, who had published a narrative, 
 and one Day, the printer of a newspaper, 
 had previously made their peace with the 
 prosecutor.
 
 CHAP. II.] 
 
 Trade Disputes. 
 
 159 
 
 prevent, pervert, or defeat the course of public justice, the Court 
 may award imprisonment for any term now warranted by law, and 
 hard labour during the whole or any part of such imprison- 
 ment, (p) 
 
 We have seen that by the 24 k 25 Vict. c. 100, s. 4, provision 
 is made for the punishment of conspiracies to murder, {q) 
 
 In conclusion of this chapter, it may be mentioned, that, after a 
 conviction for a conspiracy, the defendants must be present in 
 Court when a motion is made on their behalf, in arrest of judg- 
 ment, {r) And also, that upon a motion for a new trial, after 
 such conviction, all the defendants must be present, (s) And it 
 is not a sufficient excuse for absence, that they are in custody on 
 civil process ; but if they were in custody on criminal process, the 
 case would be different, for then they might be charged with the 
 conspiracy also, {t) But where an indictment has been removed 
 into the Court of King's Bench, after verdict, but before judg- 
 ment, and set down for argument, it does not appear to be neces- 
 sary that the defendants should appear in Court upon the argu- 
 ment, the proceeding being in the nature of a special verdict, and 
 the party not being considered as convicted, until after the Court 
 have determined upon the verdict, {u) A new trial cannot be 
 granted as to one conspirator without granting it as to all who 
 are convicted, though the ground on which the new trial is granted 
 applies only to the one conspirator, (v) But where some are 
 acquitted and some convicted, a new trial may be granted, as to 
 the latter without disturbing the verdict as to the former, (i') 
 
 The Trade Union Act, 1871, and The Conspiracy and Protection 
 of Property Act, ISTo. 
 
 The earlier statutes relating to the combination of workmen 
 were repealed by the 5 Geo, 4, c. 95. This Act was repealed by 
 the G Geo. 4, c. 129, and other provisions were enacted in lieu 
 thereof. This Act was amended by subsequent Acts. All these 
 Acts are now repealed by 34 & 35 Vict. c. 32. 
 • By 34 & 35 Vict. c. 31, s. 1, this Act may be cited as " Tlic 
 Trade Union Act, 1871." {lu) 
 
 Sec. 2. The purposes of any trade union sliall not, by reason 
 merely that they are in restraint of trade, be deemed to be 
 unlawful, so as to render any member of such trade union liable to 
 criminal prosecution for conspiracy or otherwise, {x) 
 
 Sec. 3. The purposes of any trade union shall not, by reason 
 merely that they are in restraint of trade, be unlawful so as to 
 render void or voidable any agreement or trust. 
 
 Sec. 5. The following Acts, that is to say : — 
 
 (1) The Friendly Societies Acts, 1855 and 1858, and the 
 Acts amending the same ; (.r.^*) 
 
 {p) Soc the clause, vol. 1, p. 79. 
 
 (g) Vol. 1, p. OOG. 
 
 (?•) Rex V. Spragg, 2 P.urr. 920. 1 
 Black. R. 209. 
 
 (s) Ilex r. Teal, 11 East, 307. Rex 
 V. Askew, 3 JI. & S. 9. Rex r. Lord 
 Cochrane, 3 JI. & S. 10. 
 
 (0 Rex V. Hollingberry, 4 B, & C. 
 
 329. G D. & R. 3ir.. 
 
 («) Rex V. Nicliolls, 2 Str. 1227. 
 
 (r) Reg. r. Ciompertz, 9 (). B. 82J. 
 
 (?/•) This Act is amemled by 39 & 40 
 Vict. c. 22. 
 
 (.r) See R. v. Bunn, 12 Cox, C. C. 31C. 
 
 {xx) By 39 & 10 Vict. c. 22, .s. 2, a 
 trade union, whether registered or un- 
 
 Conspiracies 
 to murder. 
 
 All the de- 
 fendants must 
 be present in 
 court uj)on a 
 motion in 
 arrest of judg- 
 ment or for a 
 new trial. 
 
 Trade Union 
 Act, 1871.
 
 160 Of Conspiracy. [book v. 
 
 (2) TIic Tii(lustri;il ami I'njvidcnt Societies' Act, 1SG7, fiml 
 
 ;uiv Act iuneii(lin;,f tlic same; and 
 {:\) Tlio (Companies' Acts, 1 802 and 1807, 
 
 shall ii'>t a|.|ilv to any trade union, ami the registration of any 
 trade uiiinn iimler any of the said Acts shall be void, and the 
 deposit of till' rules of any trade union made under the Friendly 
 Societies' Acts, 18.55 and 1858, and the Acts amending the same, 
 belore the passing of this Act, shall cease to be of any effect, (y) 
 
 Sec. provides for the registry of trade unions. 
 
 Sec. 1). The trustees of any trade union registered under this 
 Act, or any other officer of such trade union who may be au- 
 thorized so to do by the rules thereof, are hereby empowered to 
 bring or defend, or cause to be brought or defended, any action, 
 suit, prosecution, or complaint in any court of law or efpiity touch- 
 ino- or concerning the property, right, or claim to property of 
 the trade union, and shall and may in all cases concerning the real 
 or personal property of such trade union, sue and be sued, plead 
 and be impleaded, in any court of law or equity, in their proper 
 names, without other description than the title of their office ; and 
 no such action, suit, prosecution, or complaint shall be discontinued 
 or shall abate by tlie death or removal I'rom office of such persons 
 or any of them, but the same shall and may be proceeded in by 
 their successor or successors as if such death, resignation, or re- 
 moval had not taken place ; and such successors shall pay or 
 receive the like costs as if the action, suit, prosecution, or com- 
 plaint had been commenced in their names for the benefit of or to 
 be reimbursed from the funds of such trade union, and the sum- 
 mons to be issued to such trustee or other officer may be served 
 by leaving the same at the registered office of the trade union. 
 
 " Sec. 18. If any person with intent to mislead or defraud gives 
 to any member of a trade union registered under this Act, or to 
 any person intending or applying to become a member of such 
 trade union, a copy of any rules or of any alterations or amend- 
 ments of the same other than those respectively which exist for 
 the time being, on the pretence that the same arc the existing 
 rules of such trade union, or that there are no other rules of such 
 trade union, or if any person with the intent aforesaid gives a copy 
 of any rules to any person on the pretence that such rules are the 
 rules of a trade union registered under this Act which is not so 
 rewistered, every person so offending shall be deemed guilty of a 
 misdemeanor. 
 
 Sec. 23. In this act {yy) the term ' trade union,' means such com- 
 bination, whether temporary or permanent, for regulating the rela- 
 
 rcf'istcveil which iIl^vln■s or pays iiioiu\v means any conibiuation, whether lem- 
 on the death of a cliild under "ten years porary or permanent, for regulating the 
 of age, shall he deemed to be within the relations between workmen and masters, 
 provisions of sec. 28 of the Friendly or between workmen and workmen, or 
 Societies Act, 1875. between masters and masters, or for im- 
 
 (?/) See Farrer v. Close, 38 L. J. M. jtosing restrictive conditions on the con- 
 
 C. 132 ; sec 38 & 39 Vict. c. 22. duet of any trade or business, whether 
 
 (vi/) By 39 & 40 Viet. e. 22, s. 16, so ."iuch combination would or would not, 
 niucii of the above 23rd section as defines if the ]iriucipal Act had not been passed, 
 the term trade union, except tlie proviso have been deemed to have l>een an un- 
 qualifying such definition, is hereby re- lawful combination by reason of some 
 peaked, and in lieu thereof be it enacted one or more of its purposes being in te- 
 as follows ; The term ' trade union ' straint of trade.
 
 CHAP. Ti.] Trade Disputes. 161 
 
 tioiis between workmen and masters, or between workmen and 
 workmen, or between masters and masters, or for imposing restrictive 
 conditions on the conduct of any trade or business, as would, if this 
 Act had not passed, have been deemed to have been an unlawful 
 combination by reason of some one or more of its purposes being 
 in restraint of trade : Provided that this Act shall not affect — 
 
 1. Any agi-eement between partners as to their own 
 
 business ; 
 
 2. Any agreement between an employer and those employed 
 
 by him as to such employment ; 
 
 3. Any agreement in consideration of the sale of the 
 
 goodwill of a business or of instruction in any profes- 
 sion, trade, or handicraft. 
 
 By 38 & 89 Vict. c. 86. 
 
 Sec. 1. This Act may be cited as the Conspiracy and Protection Conspiracy and 
 of Property Act, 1875. SoTert ° Act 
 
 Sec. 2. This Act shall come into operation on the 1st day of 1875!^ ^ ^ ' 
 September, 1875. 
 
 Sec. 3. An agreement or combination by two or more persons Amendment of 
 to do or procure to be done any act in contemplation or fur- ^^Y ^^ *? '■^°^' 
 therance of a trade dispute between employers and workmen shall trade'^dis^ 
 not be indictable as a conspiracy if such act committed by one putes. 
 person would not be punishable as a crime. 
 
 Nothing in this section shall exempt from punishment any 
 persons guilty of a conspiracy for which a punishment is awarded 
 by any Act of Parliament. 
 
 Nothing in this section shall affect the law relating to riot, 
 unlawful assembly, breach of the peace, or sedition, or any offence 
 against the State or the Sovereign. 
 
 A crime for the purposes of this section means an offence 
 punishable on indictment, or an offence which is punishable on 
 summary conviction and for the commission of which the offender 
 is liable under the statute making the offence punishable to be 
 imprisoned either absolutely or at the discretion of tlie Court as an 
 alternative for some other punishment. 
 
 Where a person is convicted of any such agreement or com- 
 bination as aforesaid to do or procure to be done an act which is 
 punishable only on summary conviction, and is sentenced to 
 imprisonment, the imprisonment shall not exceed three months, 
 or such longer time, if any, as may have been prescribed by the 
 statute for the punishment of the said act when committed by one 
 person. 
 
 Sec. 4. Where a person employed by a municipal authority or Breach of 
 by any company or contractor upon whom is imposed by Act of contract by 
 Parliament the duty, or who have otherwise assumed the duty Jj^'^^i^^cd in 
 of supplying any city, borough, town, or place, or any part thereof, supply of gas 
 with gas or water, wilfully and maliciously {z) breaks a contract or water, 
 of service with that authority or company or contractor, knowing 
 or having reasonable cause to believe that the probable conse- 
 quences of his so doing, either alone or in combination with others, 
 will be to deprive the inhabitants of that city, borough, town, 
 
 (z) See sec. 15, jW6<, p. 165.
 
 \G: 
 
 Of Consjnracy. 
 
 [book 
 
 Ercach of 
 contract in- 
 volving injury 
 to persons or 
 property. 
 
 Penalty for 
 neglect by 
 master to 
 provide food, 
 clothing, &e., 
 for servant or 
 apprentice. 
 
 Penalty for 
 intimidation 
 or annoyance 
 by violence 
 or otherwise. 
 
 ]»laco, or part, wliolly (»r to a great extent of their supply of j^^a.s or 
 water, lie shall, (Ui cotivietioii thereof hy a court of suininary juri.s- 
 (lictiou or oM indietjuent as hereinafter mentioned, lie liahlc either 
 to pay a penalty not exceeding twenty pounds or to he iiiiprisf>ned 
 for a term not exceeding three months, Avith or without hard 
 lahour. 
 
 Every such mimicipal authority, company, or contractor as is men- 
 tioned in this section shall cause to he posted up, at the gasworks 
 or waterworks, as the case may he, Ijclonging to such authority or 
 company or contractor, a printed copy of this section in some con- 
 spicuous place where the same may be conveniently read by the 
 persons employed, and as often as such copy becomes defaced, 
 obliterated, or destroyed, shall cause it to be renewed with all 
 reasonable despatch. 
 
 If any municipal authority or company or contractor make de- 
 fault in complying with the provisions of this section in relation 
 to such notice as aforesaid, they or he shall incur on summary con- 
 viction a penalty not exceeding five pounds for every day during 
 which such default continues, and every person who unlawfully 
 injures, defaces, or covers up any notice so posted up as aforesaid 
 in pursuance of this Act, shall bo liable on summary conviction to 
 a penalty not exceeding forty shillings. 
 
 Sec. 5. Where any person wilfully and maliciously [a) breaks a 
 contract of service or of hiring, knowing or having reasonable 
 cause to believe that the probable consequences of his so doing, 
 either alone or in combination with others, will be to endanger 
 human life, or cause serious bodily injury, or to expose valuable 
 property wdiethcr real or personal to destruction or serious injury, 
 he shall, on conviction thereof by a court of summary jurisdiction 
 or on indictment as hereinafter mentioned, be liable either to pay 
 a penalty not exceeding twenty pounds, or to be imprisoned for a 
 term not exceeding three months, Avith or without hard labour. 
 
 Sec. 6. Where a master, being legally liable to provide for his 
 servant or apprentice necessary food, clothing, medical aid, or 
 lodging, wilfully and without lawful excuse refuses or neglects to 
 provide the same, whereby the health of the servant or apprentice 
 is or is likely to be seriously or permanently injured, he shall on 
 summary conviction be liable either to pay a penalty not exceed- 
 ing twenty pounds, or to be imprisoned for a term not exceeding 
 six months, with or without hard labour. (6) 
 
 Sec. 7. Every person wdio, wdtli a view to compel (c) any other 
 person to abstain from doing or to do any act which such other 
 person has a legal right to do or abstain from doing, wrongfully and 
 without legal authority, — 
 
 1. Uses violence to or intimidates {J) such other person or his 
 
 wife or children, or injures his property ; or, 
 
 2. Persistently follows such other person about from place to 
 
 place ; or. 
 
 {n) See sor. L'>, 7^At^ p. 16.*). 
 
 (b) As to lial>ility of a master to provide 
 food, &c., for ser^'ant or apprentice, see 
 vol. 1, pp. 663, 947. 
 
 Ic) See R. r. Hibbort, 13 Cox, C. C. 
 S2. 
 
 {d) As to the meaning of this word, 
 ^eepost, p. 167, f.t scq.
 
 CHAP. II.] Trade Disputes. 163 
 
 3. Hides any tools, clothes, or other property owned or used by 
 
 such other person, or deprives liini of or hinders him in the 
 use thereof; or, 
 
 4. Watches or besets the house or other place where such other 
 
 person resides, or works, or carries on business, or happens 
 to be, or the approach to such house or place (e) ; or, 
 
 5. Follows such other person with two or more other persons in 
 
 a disorderly manner in or through any street or road, 
 shall, on conviction thereof by a court of summary jurisdiction or 
 on indictment as hereinafter mentioned, be liable either to pay a 
 penalty not exceeding twenty pounds, or to be imprisoned for a 
 term not exceeding three months, with or without hard labour. 
 Attending at or near the house or place where a person resides, 
 or works, or carries on business, or happens to be, or the approach 
 to such house or place, in order merely to obtain or communicate 
 information, shall not be deemed a watching or besetting within 
 the meaning of this section. (/) 
 
 Sec. 8. Where in any Act relating to employers or workmen a Reduction of 
 pecuniary penalty is imposed in respect of any offence under such penalties. 
 Act, and no power is given to reduce such penalty, the justices or 
 court having jurisdiction in respect of such offence may, if they 
 think it just so to do, impose by way of penalty in respect of such 
 offence any sum not less than one fourth of the penalty imposed by 
 such Act. 
 
 Sec. 9. Where a person is accused before a court of summary Power for 
 jurisdiction of any offence made punishable by this Act, and for offender under 
 which a penalty amounting to twenty pounds, or imprisonment, is ^J^^ ^^ j^. ° 
 imposed, the accused may, on aj)pearing before the court of sum- dictment and 
 mary jurisdiction, declare that lie objects to being tried for such not by court 
 offence by a court of summary jurisdiction, and thereupon the court ?i,HsiUaion 
 of summary jurisdiction may deal with the case in all respects as 
 if the accused were charged with an indictable offence and not an 
 offence punishable on summary conviction, and the offence may bo 
 prosecuted on indictment accordingly. 
 
 Sec. 10. Every offence under this Act which is made punishable Proceedings 
 on conviction by a court of summary jurisdiction or on summary before court of 
 conviction, and every penalty under this Act recoverable on sum- jur^iici^on. 
 mary conviction, may be prosecuted and recovered in manner pro- 
 vided by the Summary Jurisdiction Act. 
 
 Sec. 11. Provided, that upon the hearing and determining of Regulations as 
 any indictment or information under sections four, five, and six of t" evidence, 
 this Act, the respective parties to the contract of service, their 
 husbands or wives, shall be deemed and considered as competent H"sbands and 
 witnesses, {g) 
 
 By sec. 12. In England or Ireland, if any party feels aggrieved Appeal to 
 
 by any conviction made bv a court of summary jurisdiction on q^^y*^*" 
 
 "^ . sessions 
 
 determining any information under this Act, the party so aggrieved 
 
 (c) See R. v. Druitt, 10 Cox, C. C. who liave not acted with them, to do so. 
 
 593 ; R. V. Hibbert, supra. Tlicy must ndt infringe the provisions of 
 
 (/) See R. r. Bunn, 12 Cox, C. C. tliis enactment, sec \\. v. Druitt, 10 Cox, 
 
 316 ; R. V. Sho])hprd, 11 Cox, C. C. 32.5. C. V. .'ilK^, ].er l?ram\vell, H. 
 It is lawful for wiiikmen, peaceably and (ij) As to a husbainl or wife being 
 
 in a reasonable and ])ropcr manner, to inconi})etent as a witness for or agauist 
 
 endeavour to i)ersuade other workmen each other, sec post, Evidence. 
 
 M 2
 
 (M 
 
 Ooncrnl dcfini- 
 tioim ; ' Tlio 
 Siiniiimry 
 Jtiri.Milicliuii 
 Act.' 
 
 ' Court of 
 nunini.'iry 
 jumJiction. 
 
 Definitions of 
 'municipal 
 authority ' and 
 ' public com- 
 pany.' 
 
 Of Coiispi racji. [book v. 
 
 niny appeal tlicrcfioni, subject to ccrtiiin conditions and regula- 
 tion.s. 
 
 Sec. 13. In this Act,— 
 
 'J'lio exprc.s.sion "the Suniniary Jurisdiction Act" means the 
 1 1 & 12 Vict. c. 4.S, intituled " An Act to facilitate the performance 
 of the duties of justices of the peace out of sessions within England 
 and Wales witli respect to summary convictions and orders," in- 
 clusive of any Acts amending the same ; and 
 
 The expression "court (jf summary juri.sdiction" means — 
 
 (1.) As respects the city of London, the Lord Mayor or any 
 alderman of the said city sitting at the Mansion House 
 or Guildhall justice room ; and 
 (2.) As respects any police court division in the Metropolitan 
 police district, any Metropolitan police magistrate 
 sitting at the police court for that division ; and 
 (3.) As respects any city, town, liberty, borough, place, or 
 district for which a stipendiary magistrate is for the 
 time being acting, such stipendiary magistrate sitting 
 at a police court or other place appointed in that 
 behalf; and 
 (4.) Elsewhere, any justice or justices of the peace to whom 
 jurisdiction is given by the Summary Jurisdiction Act : 
 Provided that, as respects any case within the cogni- 
 zance of such justice or justices as last afore-said, an 
 information under this Act shall be heard and deter- 
 mined by two or more justices of the peace in petty 
 sessions sitting at some place appointed for holding 
 petty sessions. 
 
 Nothing in this section contained shall restrict the jurisdiction 
 of the Lord Mayor or any alderman of the city of London, or of 
 any metropolitan police or stipendiary magistrate, in respect of any 
 act or jurisdiction which may now be done or exercised by him out 
 of court. 
 
 Sec. 14. The expression "municipal authority" in this Act 
 means any of the following authorities, that is to say, the Me- 
 tropolitan Board of Works, the Common Council of the city of 
 London, the Commissioners of Sewers of the city of London, the 
 town council of any borough for the time being subject to the 
 5 & G W. 4, c. 76, intituled " An Act to provide for the Regulation 
 of Municipal Corporations in England and Wales," and any Act 
 amending the same, any commissioners, trustees, or other persons 
 invested by any local Act of Parliament with powers of improving, 
 cleansing, lighting, or paving any town, and any local board. 
 
 Any municipal authority or company or contractor who has 
 obtained authority by or in pursuance of any general or local Act 
 of Parliament to supply the streets of any city, borough, town, 
 or place, or of any part thereof, with gas, or which is required by or 
 in pursuance of any general or local Act of Parliament to supply 
 Avater on demand to the inhabitants of anj^ city, borough, town, 
 or place, or any part thereof, shall for the purposes of this Act 
 be deemed to be a municipal authority or company or contractor 
 upon whom is imposed by Act of Parliament the duty of supplying 
 such city, borough, town, or place, or part thereof, with gas or water.
 
 CHAP. II.] Trade Disputes. 165 
 
 Sec. 15. The word "maliciously" used in reference to any 'Maliciously' 
 offence under this Act shall be construed in the same manner as it '° ^^^^ Act 
 is required b}'- the 24 & 25 Vict. c. 97, s. 58 (Ji), to be construed in jt"iic\ous ln-'° 
 reference to any offence committed under such last-mentioned juries to Pro- 
 Act, perty Act. 
 
 Sec. 16. Nothing in this Act shall apply to seamen or toappren- Saving as to 
 tices to the sea service. 
 
 sea service. 
 
 Sec. 17. On and after the commencement of this Act, there shall Repeal of 
 
 be repealed : — 
 
 I. The Act of 34 & 85 Vict. c. 32, intituled "An Act to amend 
 the Criminal Law relating to violence, threats, and moles- 
 tation ; " and 
 II. "The Master and Servant Act, 1867," and the enactments 
 specified in the First Schedule to that Act, with certain 
 exceptions. 
 III. Also there shall be repealed the following enactments 
 making breaches of contract criminal, and relating to the 
 recovery of wages by summary procedure ; (that is to say,) 
 (a.) An Act 5 Eliz. c. 4, intituled " An Act touching 
 dyvers orders for artificers, labourers, servantes of 
 husbandrye, and apprentices ; " and 
 (h.) So much of section two of 12 Geo. 1, c. 34, intituled 
 "An Act to prevent unlawful combination of 
 workmen employed in the woollen manufactures, 
 and for better payment of their wages," as relates 
 to departing from service and quitting or returning 
 work before it is finished ; and 
 (c.) Section twenty of 5 Geo. 3, c. 51, the title of which 
 begins with the words " An Act for repealing 
 several Laws relating to the manufacture of woollen 
 cloth in the county of York,*' and ends with the 
 words " for preserving the credit of the said manu- 
 facture at the foreign market ;" and 
 {(1.) An Act, 19 Geo. 3, c. 49, intituled "An Act to pre- 
 vent abuses in the payment of wages to persons 
 employed in the bone and thread lace manufac- 
 tory ;" and 
 (e.) Sections 18 & 23 of 3 & 4 Vict. c. 91, intituled 
 "An Act for the more effectual prevention of 
 frauds and abuses committed by Aveavers, sewers, 
 and other persons employed in the linen, hempen, 
 union, cotton, silk, and woollen manufactures in 
 Ireland, and for the better payment of their wages, 
 for one year, and from thence to the end of the 
 next session of Parliament ; " and 
 (/) Section 17 of 6 & 7 Vict. c. 40, the title of which 
 begins with the words " An Act to amend the 
 Laws," and ends with the words " workmen en- 
 gaged therein ; " and 
 {g) Section 7 of 8 & 9 Vict. c. 128, intituled " An Act to 
 make further regulations respecting the tickets 
 
 {h) See tills section, vol. 2, p. 892, Tlic Act relates to malicious injuries to {iro- 
 perty. 
 
 Acts.
 
 IGG Of Conspiracy. [ijook v. 
 
 of work to be delivered to silk weavers in eertain 
 cases." 
 
 J^dvitlcd that, — 
 
 (1.) Any order for wages or fuitlicr sum of compensation in 
 addition to wages made in ])Ui'suan(;e of se(;ti<>n sixteen 
 of " The Snminary Jurisdiction (Ireland) Act, 1851," 
 may be enforced in like manner as if it were an order 
 made by a court of summary jurisdiction in pursuance 
 of the " Employers and Workmen Act, 187'5," and not 
 otherwise ; and 
 (2.) Tiie repeal enacted by this section shall not affect — 
 
 (rt.) Anything duly done or suffered, or any rigiit or lia- 
 bility ac(|uired or incurred under any enactment 
 hereby repealed ; or 
 (h.) Any penalty, forfeiture, or punishment incurred in 
 respect of any offence committed against any 
 enactment hereby repealed ; or 
 (c.) Any investigation, legal proceeding, or remedy in 
 respect of any such riglit, liability, pe'nalty, for- 
 feiture, or punishment as aforesaid ; and any such 
 investigation, legal proceeding, and remedy may 
 be carried on as if this Act had not passed. 
 
 Application to Sec. 18. This Act extends to Scotland, with certain modifications ; 
 
 Scotland. and see sections 19 and 20. 
 
 Application to Scc. 21. Tliis Act extends to Ireland, with certain modifica- 
 
 Irelan.l. ^j^j^g 
 
 Cases under Repealed Acts. 
 
 It may be useful to refer to the following cases decided under 
 the rejDealcd acts. 
 If workmen In his charge to the grand jur}^ at the Stafford Special Commis- 
 
 S/thdf^*''^ siou, 1843, Tindal, C. J., said, ' The first observation that arises 
 wa"es thcY ^^ ^^^'^^ if the workmen of the several collieries and manufactories, 
 maj' lawfully who Complained that the wages which they received were in- 
 uieef to tic- adequate to the value of their services, had assembled themselves 
 rate of wa"cs peaceably together for the purpose of consulting upon and de- 
 tbey will re- terminiug the rate of wages or prices which the persons present at 
 quire, and the meeting should require for their work, and had entered into 
 fixthat rate • ''^^ agreement amongst themselves for the jDurpose of fixing such 
 but they can- rate, they would have done no more than the law allowed. A 
 not lawfully combination for that purpose and to that extent (if indeed it can 
 other workmen he called by that name) is no more than is recognized as legal by 
 in tiie exercise the 6 Gco. 4, c. 129; by whicli statute also exactly the same 
 ^Ji^l^ ^"'^ right of combination, to the same extent and no further, is given 
 to the masters when met together, if they are of opinion the rate 
 of wages is too high. In the case supposed — that is, a dispute 
 between the masters and the workmen as to the proper amount of 
 wages to be given, — it was probably thought by the legislature 
 that if the workmen on the one part refused to work, or the 
 masters on the other refused to employ, as such a state of things 
 could not continue long, it might fairly be expected that the party 
 must ultimatel}' give way, whose pretensions were not founded in 
 
 right.
 
 CHAP. IT.] 
 
 Trade Disputes. 
 
 167 
 
 reason and justice — the masters if they offered too little, the 
 workmen if they demanded too much. But, unfortunately for 
 themselves and others, those who were discontented did not rest 
 here. Not satisfied with the exercise of their own right to withhold 
 their own labour, if they were discontented with the price they 
 received for it, they assumed the power of interfering with the 
 right which others possessed, of exercising their discretion upon 
 the same point ; and accordingly you will have numerous cases 
 laid before you in which large bodies of dissatisfied workmen 
 interfered by personal violence and by threats and intimidation, 
 to compel others, who were perfectly willing to continue to labour 
 in their callings at the rate of wages then paid, to desist from 
 their work, to leave the mine or manufactor}', and against their 
 own will to add themselves to the numbers of the discontented 
 party ; than which a more glaring act of tyranny and despotism 
 by one set of men over their fellows cannot be conceived. If 
 there is one right which, beyond all others, the labourer ought to 
 be able to call his own, it is the right of the exertion of his own 
 personal strength and skill, in the full enjoyment of his own free 
 will, altogether unshackled by the control or dictates of his fellow 
 workmen ; yet, strange to say, this very right, which the dis- 
 contented workman claims for himself to the fullest extent, he 
 does, by a blind perversity and unaccountable selfishness, entirely 
 refuse to his fellows, who differ in opinion from himself It is 
 unnecessary to say, that a course of jjroceeding so entirely un- 
 reasonable in itself, so injurious to society, so detrimental to the 
 interest of trade, and so oppressive against the rights of the poor 
 man, must be a gross and flagrant violation of the law, and must 
 be put down, when the guilt is established, by a proper measure of 
 punishment.' {j) 
 
 The defendants were indicted for a conspiracy to impoverish 
 partners in their trade and business as ironfounders, and for a con- 
 spiracy to prevent them from taking into their service journeymen 
 and apiDrentices, &c. ; Rolfe, B., told the jury that, ' Those who 
 are to employ labour may meet and say, " We will not give more 
 than such and such a rate, or we will stipulate for such and such 
 number of hours' work ; wc will make, in short, regulations benefi- 
 cial to ourselves as employers, and we agree that we will not take 
 any workmen that require more." On the other hand, the work- 
 men may meet and say, " We will not work for less than such and 
 such sums, and if anybody thinks to employ us on low wages we 
 Avill agree we will not work for them, and we agree to form a 
 fund and support one another until we get them to come to 
 , proper terms." That being the law, the market in that, as in all 
 other things, will find its own level, and what the value of that 
 labour is will be found out by there being either a redundancy of 
 hands out of work, or a redundancy of capital seeking for labour ; 
 and that is the policy of the law. But if any illegal means be 
 taken, the principle of the common law steps in, and says that if 
 any persons conspire and combine together to effect this illegal 
 object, an object that is of itself illegal, any such conspiracy to 
 
 On the one 
 hand masters 
 have a right to 
 agree among 
 themselves 
 what wages 
 they will give 
 and what 
 hours of work 
 they will re- 
 quire ; 0.1 the 
 other, work- 
 men have a 
 right to ajfree 
 among them- 
 selves what 
 wages they 
 will require ; 
 but neither 
 have a right 
 to enforce 
 these objects 
 by illegal 
 means ; and 
 if they agree 
 so to do they 
 are gjiity of a 
 conspiracy. 
 
 (/) C. & M. GG2, note. Turke, B., 
 and Kolfe, 13., were present. See 11. v. 
 
 ]5ykerd}kc, 1 JI. & Kob. Ui'.
 
 1G8 
 
 It iH not i1- 
 lofjiil for work- 
 iin>n iK'fuu'iilily 
 t<> try )«> I'lT- 
 NU.'iiK^ (it hers 
 til ili'tcriiiiiio 
 nut to work 
 iiiilexA on oer- 
 tjiiii tvriiiH. (L) 
 
 It is not nc- 
 ccHsary to 
 l>rovc that 
 actuni threats 
 were used ; it 
 is siitVK-icnt if 
 tlie language 
 ii^oil is such as 
 t<i convey tlie 
 inijiression of 
 intimidation ; 
 aiiii in de- 
 termining; that 
 (luestiou it is 
 imt so much 
 the very words 
 that are to be 
 considered, as 
 whether the 
 fair result of 
 tliem was to 
 intimidate. 
 
 A comliination 
 to comiwl 
 workmen to 
 quit tiicir em- 
 ploy unless 
 aiiutlier work- 
 man wa« dis- 
 cLargetl. 
 
 Of Conspiracij. 
 
 [book v. 
 
 viYv.ci tlio illo<,Mil oltjoct. is Ksc^lf criminal.' And witli refereuco to 
 the (!X|)rt'ssi()iis used l)y tiio dcfcnd.'iiit.s, Kolfe, I>., s;dd, 'A ;^'reat 
 ddjil iiiiiy Ijo said as to tlio preciso words used ; wli.-it I think you 
 should consider is not so much the very words, as whether tlie lair 
 residt of it was to intimate to the person to whom it was ad- 
 (hessed, that some ])odily harm would happen to Inm if he 
 persevered in liis intention of working at the prosecutors', when 
 they only said, "It will bo the worse for you" and "You will 
 regret it," and so on. There are no particular words necessary to 
 be used if the fair inference is that which has been taken, that it 
 was to prevent the other party from persevering in the intention 
 of working for the prosecutors, and unquestionably that would 
 bring home the charge of intimidation.' And with respect to 
 persuasion to leave their service, Rolfe, B., said, ' It is doubtless 
 lawful for people to agree among themselves not to work except 
 upon certain terms; that being so, I am not aware of any illegality 
 in their peaceably trying to persuade others to adopt the same 
 view. It is lawful for half a dozen people to agree together and 
 say, " We will not work unless the prosecutors raise our wages." 
 So it is perfectly reasonable to say to a third man, " You had 
 better do tiiat too," if they do not use threats, to deter him from 
 doing it ; but it is not necessary to use actual throats, if the 
 language used is such as tends to convey the impression of intimi- 
 dation.' And the learned Baron afterwards added, ' My opinion is 
 that, if there was no other object than to persuade people that it 
 was their interest not to work except for certain wages, and not 
 to work under certain regulations complied with in a peaceable 
 way, it was not illegal.' (T) 
 
 On an indictment for a combination by workmen contrary to the 
 6 Geo. 4, c. 129, it appeared that the defendants were members 
 of a society called the Philanthropic Society of Coopers. The 
 society had an acting member in every cooper's yard. C Evans, 
 a member of the society, was working in Mr. Turner's yard ; but, 
 with his permission, he did four days' work at the steam mills of 
 other masters, where steam machinery was employed for making 
 casks. When this came to the knowledge of the society, they in- 
 tiicted a fine of 10/., pa3'able by instalments, on Evans for working 
 in a yard where steam machinery was employed. Evans refused to 
 pay, and the other men in Mr, Turner's yard then left their work, 
 and refused to return whilst Evans was employed. Evans was, 
 in consequence, thrown out of work. Each man who left Turner's 
 yard on account of Evans was paid 9s. for his loss of time by 
 the committee. The fine was imposed in accordance with the 
 rules of the society. Lord Campbell, C. J., was of opinion that 
 the Philanthropic Society was, according to its rules, a lawful in- 
 stitution ; but it could not be permitted that, under the guise of 
 its laudable objects, the members should enter into a combination 
 to injure others. By law every man's labour w^as his own, and he 
 might make what bargain he liked for his own employment ; but 
 the men must not associate themselves to do that which might pre- 
 
 (k) See R. r. Shepherd, 11 Cox, C. C. 
 325 ; K. V. Hibbert, 13 Cox, C. C. 82. 
 Clcasby, B. This is so now, see ss. 3 & 7, 
 of new Act, ante, pp. 161, 162. 
 
 (I) Reg. V. Selsby, 5 Cox, C. C. 495, 
 note. Sp. As. 1847. See sec. 7 of the 
 new Act, anlc, p. 162.
 
 CHAP. II.] 
 
 Trade Disinites. 
 
 169 
 
 judice another man. The men may take care not to enter into 
 engagements of which they do not ajjprove ; but they must not 
 prevent another from doing so. It was clear the defendants un- 
 lawfully imposed a fine on Evans, and proceeded by unlawful 
 means to induce him to pay that fine, (m) 
 
 The first count stated that R. P. and G. H. P. carried on trade as 
 manufacturers of japanned and tin wares, and that divers persons 
 were workmen, and hired and employed by and worked as workmen 
 for the said E,. P. and G. H. P. in their said trade, and that the 
 prisoners unlawfully consj)ired, &c., by unlawfully molesting the 
 workmen so hired and employed by and working for the said R. P. 
 and G. H. P. in their said trade, to force and endeavour to force the 
 said workmen so hired and employed by and working for the said 
 R. P. and G. H. P., in their said trade, to depart from their said 
 hiring, employment, and work. The second count was like the 
 first, but stated the means to be by unlawfully using threats to 
 the said workmen. The third was like the preceding, but stated 
 the means to be by unlawfully intimidating the said workmen. 
 The fourth, fifth, and sixth were similarly framed for conspiring 
 to force individual workmen to depart from their hiring by the 
 means stated in the first, second, and third counts respectively. 
 The seventh count, like the first, stated that divers persons 
 were workmen, and were hired and employed by and worked for 
 R. P. and G. H. P. in their said trade, and that the prisoners 
 unlawfully conspired, &c., by unlawfully molesting the said R. P. 
 and G. H. P., to force and endeavour to force the said workmen so 
 hired, &c., to depart from their said hiring, &c. The eighth count 
 was like the seventh, but stated the means to be by unlawfully 
 obstructing the said R. P. and G. H. P., so carrying on tlieir said 
 trade, and the said workmen so hired, &c., by and working for the 
 said R. P. and G. H. P. in their said trade. The ninth count 
 stated that R. P. and G. H. P. carried on trade, &c., and that the 
 prisoners unlawfully conspired, &c., by molesting the said R. P. 
 and G. H. P., to force and endeavour to force them to make an 
 alteration in the mode of carrying on their said trade. The tenth 
 count stated that workmen were hired, i^c, by R. P. and G. H. P. 
 as in the former counts, and that the prisoners unlawfully con- 
 spired by obstructing the said R. P. and G. H. P., and by inducing 
 and persuading the said workmen in the hiring and employment 
 of the said R. P. and G. H. P. to leave their hiring, employment, 
 and work, to force and endeavour to force the said R. P. and 
 G. H. P. to make an alteration in the mode of carrying on their 
 said trade. The eleventh count stated that R. P. and G. H. P. 
 carried on trade, &c., and that divers persons were being hired 
 and employed as workmen for the said R. P. and G. H. P. in their 
 said trade ; and that the prisoners unlawfully conspired by molest- 
 ing and obstructing such workmen as aforesaid as might bo willing 
 to be hired and employed by the said R. P. and G. H. P. in their 
 said trade, and who were not then hired and employed by the 
 said R. P. and G. H. P., or by any other person, to prevent and 
 endeavour to prevent the said workmen so willing to be employed, 
 &c., from luring themselves to, and from accepting work and 
 
 Counts for a 
 conspiracy to 
 force workmen 
 to leave tLeir 
 employment 
 by ' molest- 
 ing,' ' using 
 threats to,' 
 and ' intimi- 
 dating' them, 
 are good, as 
 they state the 
 means in the 
 terms of the 
 6 Geo. 4, 
 c. 129, s. 3. 
 
 And so are 
 counts for a 
 conspiracy to 
 ' molest ' and 
 ' obstruct' an 
 employer. 
 
 And so are 
 counts for a 
 conspiracj' to 
 force a master 
 to alter the 
 mode of con- 
 ducting his 
 business by 
 ' molesting ' 
 and 'obstruct- 
 ing ' him and 
 persuading 
 his workmen 
 to leave his 
 service. 
 
 And so are 
 counts for a 
 conspiracy to 
 prevent work- 
 men from 
 hiring them- 
 selves by 
 molesting, 
 obstructing, 
 and tiireaten- 
 ing such work- 
 men. 
 
 (m) Keg. V. Hewitt, 5 Cox, C. C. 162, Feb. 1851.
 
 170 
 
 Ami HO aro 
 counts (framed 
 ■willi roforeiico 
 to the -I Uoo. 
 4, e. 31, 8. 3) 
 for n con- 
 Bpinicy to 
 iiulucc work- 
 nicu to alisciit 
 themselves 
 from their em- 
 I)U)yment lie- 
 fore the end of 
 their liiriug. 
 
 Of Cons/nnic?/. 
 
 [book V. 
 
 cinploymnnt from the said R. P. and G. H. P. in tlieir said trade. 
 Tlio twi'lftli count was liku tluj eleventh, but stated the means to 
 be by unlawfully using threats and intimidation to such workmen 
 who niii^dit bi' willing, ilc. The thirteenth (n.) count stated that 
 Iv. P. and (>. H. P. carried on tratle, itc, and that divers persons, 
 being artiliccis, had contracted with the said 11. P. and O. H. P. 
 to serve them as artificers in their said trade for certain times and 
 periods, &c., and had entered into the service of the said 11. P. 
 and G. H. P. as such manufacturers. And that the prisoners 
 unlawfully conspired, &c., by divers subtle means and devices, to 
 induce and persuade such artificers so having contracted, &c., and 
 so having entered into the service, &c., uidawfully to absent 
 tlieniselves from the said service of the said 11. P. and G. H. P., 
 without the consent of either of them, before the respective terms 
 of the same contracts were completed. The fourteenth count stated 
 that W. H., being an artificer, had contracted, &c., for a period 
 specified, and had entered into the service, and that tlie prisoners 
 conspired. Sec, by divers subtle means and devices, and illegal acts 
 and practices, and by intoxicating the .said W. H., to induce and 
 persuade the said W. H., so having contracted, &c., and so having 
 entered into the said service, &c., unlawfully to absent himself 
 from the service of the said R. P. and G. H. P. without the 
 consent of either of them before the term of the said contract was 
 completed. The fifteenth count was like the fourteenth, but 
 related to one T. G. The eighteenth count stated that the pri- 
 soners, intending to injure and oppress the said R. P. and G. H. P. 
 in their trade as manufacturers, &c., conspired, &c., by divers 
 subtle means and devices, and by intoxicating and thereby render- 
 ing senseless the workmen of the said R. P. and G. H. P. in their 
 trade, to convey to a distance and carry away the said workmen, 
 and thereby to prevent the said workmen from continuing to work 
 for the said R. P. and G. H. P. in their said trade. The twentieth 
 count stated that the prisoners conspired by divers subtle means 
 and devices, and by illegal acts and practices, and by molesting 
 and intoxicating the workmen in the employment of the said R. P. 
 and G. H. P., and by inducing the workmen to depart from the 
 said employment and to break their contracts with the said R. P. 
 and G. H. P., to force and compel the said R. P. and G. H. P. to 
 alter, and thereby increase, the amount of wages which the said 
 R. P. and G. H. P. then were in the habit of paying to the 
 workmen in their emiDloyment. Each count concluded ' to the 
 great damage of the said R. P. and G. H. P.,' &c. In arrest of 
 judgment it was urged that the first ten counts were too vague 
 and the words, 'molest,' 'threats,' 'intimidating,' and 'obstruct- 
 ing,' were objected to as not necessarily importing anything un- 
 lawful. To the eleventh and twelfth counts it was further 
 objected that they ought to have alleged that the prisoners knew 
 of the intended hiring, and that the names of the workmen ought 
 to have been stated. That to follow the words of a statute was 
 only sufficient where the indictment was on the statute, and here 
 the charge was at common law. The offences created by the 
 
 (n) This and the two followiug counts 
 were fraiued with rorerenoo to the 4 
 tieo. 4, c. 34, s. 3, which relates to work- 
 
 men who unlawfully absent themselves 
 from their service before the end of the 
 term for which they have been engaged.
 
 CHAP. II.] 
 
 Trade Disputes. 
 
 171 
 
 6 Geo. 4, c. 129, s. 3, depended entirely upon the means used, 
 and if those were not properly described, there was no sufficient 
 charge of conspiracy to violate the statute. To the thirteenth, 
 fourteenth, and fifteenth counts it was objected tliat they ought 
 to have stated what the contracts were, and that the absence was 
 without lawful excuse. That conspiring merely to ' induce and 
 persuade,' as alleged in the tenth count, was no offence, even if a 
 contract appeared which made it unlawful not to serve. But the 
 Court of Queen's Bench held that the counts were wholly unex- 
 ceptionable. Lord Campbell, C. J., ' It is objected that some 
 counts do not disclose the nature of the molestation or intimida- 
 tion by which the conspiracy was to take effect ; but this is quite 
 unnecessary. The words of the legislature are used ; the terms 
 in question have a meaning stamped upon them by the 6 Geo. 4, 
 c. 129, s. 3, and we must take it that they are used here in that 
 sense. And they are not employed, as describing the substan- 
 tive offence for which the indictment is preferred ; that offence 
 consists in the conspiracy, which is a misdemeanor at common 
 law.' (o) 
 
 In summing up this case to the jury, Erie, J., said, ' The law is 
 clear that workmen have a right to combine for their own protec- 
 tion, and to obtain such wages as they choose to agree to demand. 
 I say nothing at present as to the legality of other persons not 
 workmen combining with them to assist in that purpose. As far 
 as I know, there is no objection, in point of law, to it ; and it is 
 not necessary to go into that matter ; but I consider the law to be 
 clear so far only as while the jDurpose of the combination is to 
 obtain a benefit for the parties who combine ; a benefit which by 
 law' they can claim. I make that remark, because a combination 
 for the purpose of injuring another is a combination of a different 
 nature, directed personally against the party to be injured ; and 
 the law allowing them to combine for the purpose of obtaining a 
 lawful benefit to themselves, gives no sanction to combinations, 
 which have for their immediate purpose the hurt of another. The 
 rights of workmen are conceded ; but the exercise of free-will and 
 freedom of action within the limits of the law is also secured 
 equally to the masters. The intention of the law is at present to 
 allow either of them to follow the dictates of their own will with 
 
 Workmen 
 have a riglit 
 to combino 
 for their own 
 protection and 
 to obtain such 
 wages as they 
 clioose to 
 demand ; but 
 they have no 
 right to com- 
 bine for the 
 purpose of 
 injuring 
 another. 
 Masters may 
 also combine 
 to promote 
 their mutual 
 advantage. 
 
 (o) Eeg. V. Eowlands, 17 Q. B. 671. 
 2 Uen. C. C. 364. Sum. Ass. 1851. The 
 other objections were not uoticed. The 
 sixteenth count stated that the prisoners 
 conspired uuLnvfully to intimidate, pre- 
 judice, and oppress 1!. P. and G. II. P. 
 in tlieir ti-ade as manufacturers of ja- 
 panned and tin wares, and to prevent the 
 workmen of tlie said li. P. and G. II. P. 
 from continuing to work for them in their 
 said trade. The seventeenth count stated 
 that the prisoners coiisiiired, &c. , by divers 
 suljtle means and devices, anil wicked 
 arts and practices, to injure and o]ipress 
 the said 1\. P. and G. 11. P. in tiieir trade 
 of manufacturers of tin and japanned 
 wares, and to induce the workmen of tlio 
 •said P. P. and G. II. P. to dej.Mrt from 
 their Idling, employment, and work witli 
 the said 11. P. and G. II. P. before the 
 
 period of their agreement with tliem was 
 completed. The nineteenth count stated 
 that the prisoners conspired, &c., unlaw- 
 fully to intimidate, ]irejudicc, and ojipress 
 K. i>. and G. II. P. in' their trade of ma- 
 nufacturers of japanned and tin wares, 
 and to entice and seduce away the work- 
 men of the .said R. P. and G."H. P. from 
 their employment, and thereby to injure 
 and o]>pre.ss the .said 1\. P. and G. 11. P. 
 in their said trade ; and Lord Campbell, 
 C. J., said, ' We all agree in thinking that 
 thcsixteenth, seventeenth, and nineteenth 
 counts are open to objection, as being too 
 vague. We give uo linal opinion ; but 
 on these counts there will be a. rule nisi 
 to arrest the judgment, unless a nolle pro- 
 sequi bo entered ;' which the counsel for 
 the crown consented to enter.
 
 172 
 
 Of Conspiracy. 
 
 [book 
 
 A conspiracy 
 to olislriict 
 maniifiiotiirers 
 in carryinK' "'i 
 tlieir buainess 
 and til foiro 
 tlieni to 
 consent to a 
 certain scale 
 of jiricca, and 
 in pursuance 
 thereof per- 
 Buailinj; the 
 workmen to 
 leave their 
 employ, is 
 illegal, though 
 it be merely to 
 gratify ill-will. 
 
 Unengaged 
 workmen have 
 a clear right 
 to agree 
 not to enter 
 into any ser- 
 vice unless 
 they obtain a 
 certain rate of 
 wages ; but 
 they have no 
 right to com- 
 bine to induce 
 men in em- 
 ploy to leave 
 their service, 
 in order to 
 compel their 
 masters to 
 raise their 
 wages. 
 
 ii'spcct to tlioir own actions and tlicir own property ; and cither, I 
 believe, has a ri^jlit to study to promote liis own advantage or to 
 coinbine with otiiers to promote their mutual advantage.' Krle, J., 
 then said that in this case there had been a combination to force 
 the prosecutors to aqree to a uniform book of prices ; and, after 
 adverting to the different counts, added, ' If you should be of 
 opinion that a combination existed for the purpose of obstructing 
 the prosecutors in carrying on tlii'ir business, and forcing them to 
 consent to this book of prices, and, in pursuance of tliat concert, 
 they persuaded the free men, and gave money to the free men, to 
 leave the employ of the prosecutors, the purpose being to obstruct 
 them in their manufacture, and to injure them in their business, 
 and so to force their consent, with no other result to the parties 
 combining than gratifying ill-will, I am of opinion that that would 
 also be a violation of the law, and would warrant a conviction on 
 the counts directed against that form of offence.' It was con- 
 tended that this language led the jury to suppose that, although 
 the combination Avere for a legitimate object, yet, if the means to 
 be used woulil have the effect of obstructing the prosecutors in 
 carrying on their business, it was an indictable conspiracy ; 
 whereas, if the object of the workmen was to enforce their own 
 rights, they were justified in doing so, though the effect were an 
 obstruction of the prosecutors' business. But Erie, J., said that 
 his words had no such meaning, and the Court of Queen's Bench 
 saw no objection to the summing up. (p) 
 
 And on an indictment containing the same coiints as the preceding 
 case at the same assizes, Erie, J., told the jury ' that with respect 
 to the law relating to the combinations of workmen, nothing can 
 be more clearly established in point of law than that workmen 
 are at liberty, while they are perfectly free from engagement, and 
 have the option of entering into employ or not ; nothing can be 
 more clear than that they have a right to agree among themselves 
 to say, " We will not go into any employ unless we can get a certain 
 rate of wafjes." But I think it would be most dangerous if that 
 proposition were carried at all wider than the terms in which I 
 \)\\i it ; that is to say, where workmen are perfectly free from 
 engagement, having the option whether they will hire themselves 
 or not, each man for himself may say, " I will go into no employ 
 unless I can get a certain rate of Avages," and all of them, if they 
 choose, may say, " We will agree with one another that in our 
 trade, as able-bodied workmen, we will not take employ unless the 
 employers agree to give a certain rate of wages." But I think it 
 would be most dangerous indeed if that rule of law, so in favour 
 of workmen protecting their own interests, were at all construed 
 to extend to that which is charged in this indictment ; that is to say, 
 to suppose that workmen, who think that a certain rate of wages 
 ought to be obtained, have a right to combine together to induce 
 men, already in the employ of other masters (to leave their 
 service), for the purpose of compelling those masters to raise their 
 wages.' . . . . ' I take it for granted that if a manufacturer has 
 got a manufactory, and his capital embarked in it for the purpose 
 
 (p) Ibid. p. 686, note {h). 
 460, ct scq. 
 
 The summing up is given at length in 5 Cox, C. C.
 
 CHAP. II.] Trade Disputes. 173 
 
 of producing articles in that manufactory, if persons conspire to- 
 gether to take away all his workmen, that would necessarily be an 
 obstruction to him ; that would necessarily be a molesting of him 
 in his manufactory,' and that would certainly be a conspiracy for 
 an unlawful purpose, {q) ' The workmen have a right to agree Any combina- 
 that none of those who make the agreement will go into employ *^°'^,*° "^°'*'^* 
 unless they are to receive a certain rate of wages ; but with respect workmen who 
 to their fellow workmen, they have no right at all to agree to are willing to 
 molest or intimidate or annoy other workmen in the same line of m?*^!^/^ 
 business, who refuse to enter into the agreement, and who choose 
 to go and work for the emploj^ers at a lower rate of wages than 
 that which the parties agree to rely on.' 'Let those without 
 engagements agree to any terms they please, but they have no 
 right to interfere with other workmen, who do not come into the 
 agreement, and who are, of course, at liberty to go to any em- 
 ployers on any terms they choose ' (r) 
 
 The prosecutor was a builder, and employed a large number of What are 
 men. In 1859 there had been a strike of workmen in the threats and 
 building trade, and the prosecutor determined not to employ any ^j\'j^q "he"" 
 men who declined to work under a certain declaration. In May e Geo. 4, 
 1860 the prosecutor had some men in his employ who were c. 129, s. 3. 
 working under this declaration, and the defendant and two others 
 brought a paper signed by himself and about thirty other work- 
 men, which informed the prosecutor that ' unless the men, who 
 are working under the declaration in his shop, are discharged, 
 and we have a definite answer by dinner-time to that effect, we 
 cease work immediately.' The defendant, in reply to questions 
 put by the prosecutor, said they had no fault to find with him, 
 his foremen or clerks, or with the wages the defendant received ; 
 but, being asked what he wanted, he said, ' You must discharge 
 those two men who are working under the declaration, and if you 
 do not we will leave work.' The prosecutor refused to be dictated 
 to, and the defendant and all the men who had signed the paper 
 le^t his employment ; and it was held that the defendant was 
 rightly convicted, under the 6 Geo. 4, c. 129, s. 3, of unlawfully 
 by threats endeavouring to force the prosecutor to limit the 
 description of his workmen, (s) 
 
 (?) Keg. V. DufReld, 5 Cox, C. C. a.p. 1861. Cockbiirn, C. J., 'Every 
 
 404. workman in the service of an eni])loyer 
 
 (r) Per Erie, J., ibid. See Hilton v. is entitled to the full exercise of his dis- 
 
 Eckersley, 6 E. & B. 47, where there was cretiou as to whether he will continue in 
 
 much discussion as to rights of mastei's that employment, so long as he is not 
 
 and workmen to combine to protect their bound by any contract, and to give Iiia 
 
 interests ; and Lord Campbell, C. J., employer the alternative of cither losing 
 
 after citing the dictum of Grose, J., in hisservices, or discharging obnoxious per- 
 
 Eex V. Mawbey, 6 T. K. C36, there said, sons with whom he might not choose to 
 
 ' I cannot bring myself to believe, with- work ; and more than that, several men, 
 
 out authority much more cogent, that if who might consider other workmen as 
 
 two workmen, whosincerely believe their obnoxious, have a perfect right to put 
 
 wages to be inadequate, should mei't and the same alternative to their employer, 
 
 agree that they would not work unless But if the men go further than tliat, and 
 
 their wages were raised, without design- seek to coerce the master by the threat of 
 
 ing or contemplating vielence, or any what is likely to operate to his injury, 
 
 illegal means for gaining their object, that comes within themeaning of the Act. 
 
 they would be guilty (if a misdemeanor.' In the present case, it was not one man 
 
 See Hornby ?•. Close, 36 L. J. M. C. 43 ; who went to the employer, but several, 
 
 Farrar v. Close, 38 L. J. M. C. 132. who adopted the same course ; not with 
 
 (s) Walsby w. Anley, 3 Law T. 666, the view of giving him an ojiportunity of
 
 174 Of Conspiracy. [book v. 
 
 So wliorc Olio Loiiiijinnii was a member of tlio United J>oiIer 
 Makers and Jroii Slii[)l)iiil(l(jrs' Society, and in the enipl<jy of 
 Messrs Krnfjcr; and tliey had ordered one Norfolk, who was not 
 a ehih-man, to work on boilers by bendinfj angle iron, and lie did 
 so, Lon<,Mnan attended a meeting of the clulj, summoned * to stop 
 an encroaciiment,' and foimd the encroachment was ' Norfolk's 
 working at the angle iron ;' a resolution was passed that the men 
 belonging to tiic society should not be allowed to work at Messrs. 
 Kniger's if Norfolk was allowed to work at angle iron work. 
 O'Neill, the chairman of the meeting, told Longman and others 
 that, being club-men working at Kruger's yard, they would have to 
 come out if Norfolk was not knocked off angle work. A deputation 
 from tlie club waited on ]\Iessrs. Kruger, but produced no effect. 
 Longman was then summoned to another meeting, at which a re- 
 port of the deputation was made, and Longman was asked by 
 O'Neill, from the cliair, whether he intended to remain an honour- 
 able member, and leave the shop (Kruger's), or stay in the shop, 
 and be despised by tbc club, and have his name sent round all 
 over the country in the report, and be put to all sort of unpleasant- 
 ness. Longman told O'Neill that, if tbere were anything to 
 undergo, he would bear the consequences. He bad further time 
 granted him fur consideration, but ultimately refused to leave his 
 employment. It was held, chiefly on the authority of the pre- 
 ceding case, that O'Neill was guilty of having unlawfully, by 
 threats and intimidation, endeavoured to force Longman to depart 
 from his service. What was said would operate most formidably 
 on the mind of a person who felt that he would be deprived of all 
 the benefit be would otherwise obtain from the club, and be dis- 
 missed from it, and put to all sorts of unpleasantness. It was diffi- 
 cult to conceive what sort of threat could be intended to come 
 within the meaning of the Act, short of personal violence, i^ this 
 were not such a threat, {t) 
 
 The respondent, a master bricklayer, with his men, were em- 
 ployed on a building, and the appellant, Barrow, and another man 
 (O'Hare), were about thirty yards off. They spoke to two of his 
 men, who immediately afterwards took away their tools, and 
 ceased to work for respondent. This they were at liberty to do by 
 their agreement. The respondent asked Barrow and O'Hare why 
 the men had been stopped, and they told him, ' He must know it 
 was. on account of his apprentices.' At that time the respondent 
 had four apprentices. Two or three weeks afterwards respondent 
 wrote to Barrow, as the Secretary of the United Order of Brick- 
 layers' Association, asking to be informed of the reason that his 
 men were taken away from him, and stating that he had heard 
 
 exercising his discretion, but, by threat- seroral might do it ; but if they acted in 
 
 ening to leave his employ, to compel and combination, not honestlj' and indepen- 
 
 cocrce him to discharge the obnoxious dently, but for the purpose of coercing 
 
 persons.' Hill, J., ' The M-ord " threat " the master, they are guilty of a conspiracy 
 
 in the Act must be construed with those at common law. The combination, and 
 
 which precede and follow. It may be a the attempt to carry it out, were illegal.' 
 
 threat to do an illegal act; and theques- Sec R. v. Draitt, 10 Cox, C. C. 592. 
 tion is, whether the act threatened to be (t) O'Xeill v. Longman, 9 Cox, C. C. 
 
 done is an illegal act. A man has a 360, A.p. 18G3. 4 li. & S. 376. O'Xeill 
 
 perfect right to go to an employer, and r. Kiiiger, 4 B. & S. 389. 
 say all that was said in this case, or
 
 CHAP. II.] Trade Disputes. 175 
 
 that it was because he employed too many apprentices, and that 
 he should like to know what the society required him to do. In 
 reply, a letter was sent in Barrow's handwriting in the?e terms : 
 'At a summoned meetmg of the United Order of Bricklayers it 
 was proposed, seconded, and carried unanimously, that no society 
 bricklayer will work for Thomas Bowron until such time as he 
 parts with some of his apprentices, namely, he will be allowed 
 two ; and when his oldest apprentice arrives to his last year of 
 servitude he will be allowed a third, and until then there will be 
 no society bricklayer work for him ; and further, there will be so 
 much expenses to pay as well before any society bricklayer 
 will work for the said Thomas Bowron.' The appellant Wood 
 acted as chairman and Barrow as secretary at the meeting 
 at which the letter was written. Shortly after the meeting a de- 
 mand of 18Z. was made by Wood, who stated that that sum must 
 be paid before they would allow any men to work for the re- 
 spondent. Held, that the above facts were not sufficient to sustain 
 the conviction of the appellant under 6 Geo. 4, c. 129, s. 3 (now 
 repealed) for unlawfully, by using certain tlireats, forcing, or en- 
 deavouriug to force, the respondent to limit the number of his 
 apprentices, ('it) 
 
 By sect. 3 of the 6 Geo. 4. c. 129 (now repealed), it is enacted 
 that if any person shall, by threats or intimidation, force, or 
 endeavour to force, any manufacturer, or person carrying on any 
 trade or business, to limit the number of his apprentices, or the 
 number or description of his journeymen, workmen, or servants, he 
 shall, being convicted thereof, be imprisoned, &c. 
 
 The appellant, secretary of a lodge of the General Union of 
 Carpenters and Joiners, delivered to the respondent, a builder, the 
 following notice : — 
 
 ' Mr. Willia:m Kitch, 
 
 ' Sir, — I am requested by the committee of Carpenters 
 and Joiners to give the men in your employ notice to come out on 
 strike against James Jordan, unless he become a member of the 
 above society, not being any way disrespectful to you or him, but 
 
 {u) Wood V. Bowron, 10 Cox, C. C. Now, here an agreement was come to not 
 344, c< ?)c?' Lush, J., 'I am also of the to work for the master until he reduced 
 same opinion, that there is no evidence to tlie numher of liis apprcTitices. "Whatever 
 sustain the conviction. After the decisions its quality might be at common law, 
 that have been given upon this statute, certainly it is no offence against the 
 it is too late to say that the word statute; nevertheless, it is not so used as 
 " threat " is limited to the declaration of to constitute a threat. The question, iu 
 an intention to do acts which have an in- my mind, is whether it was used for a 
 timatc connection with injury or personal purpose which could bo construed into a 
 violence to another. The cases that have threat within the meaning of the statute ? 
 been decided show that the word must AVhen I tind the resolution passed was 
 have a wider sense than has been put not communicated to the master, except 
 upon it, namely, a threat by act or words in answer to his inquirj-, by way of ex- 
 for the purpose of doing some injury to planation why these persons had left his 
 another person ; that would come within employment, and then communicated 
 the meaning of a threat within the Act simjily for the ]mrpose of giving that in- 
 of Parliament. I apprehend that it is foiTnation, it seems to me that it wants 
 very essential to a "threat," that it the essential clement of a threat. There- 
 should be made for the purpose ofintimi- fore, I am of opinion that the appellants 
 dating the person to whom it is addressed. were not rightly con^-ictcd. '
 
 17(1 Of Conspiracy. [book v. 
 
 Ijoirifj rntn|)C'lle(l l)y tlio Union and laws. This notice will be 
 ('.•inii'd out ;ifl('r tlio 27tii iiist., iiiiless settled in accordance with 
 Ihi' S()ci(!ty's laws. 1 rcni.iin, yours most respectfully, TiiOMAS 
 8k I N N VM, Secretary.' 
 
 Held, that the appellant had thcrehy hrought himself within 
 the operation of the 3rd section as above mentioned, (y) 
 
 (y) Skinner v. Kitcli, 10 Cox, C, C. 493.
 
 / / 
 
 CHAPTER THE THIRD. 
 
 OF LIBEL AND INDICTABLE SLANDER. 
 
 I. Definition of, p. 177. 
 II. Privileged communications, p. 180. 
 
 III. Against the Christian religion, p. 193. 
 
 IV. Against morality, p. 197. 
 
 V. Against the constitution, p. 197. 
 VI. Against the King, p. 198. 
 VII. Against the two Houses of Parliament, p. 200. 
 VIIT. Against the Government, p. 201. 
 IX. Against the magistrates and the administration 
 of justice, p. 203. 
 X. Against private individuals, p. 20-5. 
 XI. Against foreigners of distinction, p. 208. 
 XII. Indictment for, p. 209. 
 XIII. Evidence — Plea, Trial, &c. — Lord Campbell's 
 Act, p. 211. 
 
 Sec. I. 
 
 Definition Of. 
 
 It appears to be well settled that i^ublications blaspheming What publica- 
 God, or turning the doctrines of the Christian religion into contempt ^'""^ '" 
 and ridicule, may be made the subject of indictment ; and it is now fibdious. 
 fully established, though some doubt seems formerly to have been 
 entertained upon the subject, that such immodest and immoral 
 publications as tend to corrupt the mind, and to destroy the love 
 of decency, morality, and good order, arc also otfences at common 
 law. («) It is also a misdemeanor wantonly to defame or indeco- 
 rously to calumniate that economy, order and constitution of 
 things which make up the general system of the law and govern- 
 ment of the country. (6) And it is especially criminal to degrade 
 or calumniate the person and character of the sovereign, and the 
 administration of his government by his oHicers and ministers of 
 state, (f) or the administration of justice by his judges. (</) And 
 the same policy which pi'ohibits seditious comments on the King's 
 conduct and government extends, on the same grounds, to similar 
 reflections on the proceedings of the two Houses of Parliament, (c) 
 Such publications also as tend to cause animosities between this 
 
 (rt) Sec the cases collected in 2 Starkic Ciiinpb. 308. 
 on Libel, 155. {d) 2 Staikie on Libel, 104. 
 
 {h) Hi)lt on Libel, 82. ('•■) 2 Staikie on Libel, 2(i2. 
 
 (c) lle.x r. Lambert and rcny, 2 
 
 VOL. Iir. H
 
 178 Of Libel, dc. [book v. 
 
 country tuul any lc)rt'if,m statu, by tlio personal aljiisc of the sove- 
 
 rci^Mi of" such state, liis ambassadors, or other public ministers, 
 
 may he treated as libels. (/) With respect to libels upon indi- 
 
 vitluals, they have Ijocn defined to be malicious defamations, 
 
 expressed either in ])rinling or writing, or by signs or pictures, 
 
 tending eithir to blacken the memory of one wlio is dead, or the 
 
 reputation of one who is alive, and thereby exposing him to public 
 
 hatred, contempt, and ridicide. {(j) 
 
 (»f slanilcmuH Upon somc of these subjects a publication by slander, or words 
 
 ^^^•'''^''^- spoken only, though not properly a libel, (/i) may be the subject of 
 
 criminal proceeding, as will be show n in the course of the chapter. 
 
 Of the nunlc of A libel may be as well by descriptions and circumlocutions as in 
 
 expression. express terms, therefore scandal conveyed by way of allegory or 
 
 irony amounts to a libel. As where a writing, in a taunting 
 
 manner, reckoning up several acts of public charity done by a 
 
 person, said, ' You will not x>lay the Jew, nor the hypocrite,^ and 
 
 then proceeded, in a strain of ridicule, to insinuate that what the 
 
 person did was owing to his vainglory. Or where a publication, 
 
 pretending to recommend to a person the characters of several 
 
 great men for his imitation, instead of taking notice of what great 
 
 men are generally esteemed famous for, selected such qualities as 
 
 their enemies accuse them of not possessing (as by proposing such 
 
 a one to be imitated for his courage who was known to be a great 
 
 statesman, but no soldier; and another to be imitated for his 
 
 learning who was known to be a great general, but no scholar) ; 
 
 such a publication being as well understood to mean only to 
 
 upbraid the j^arties with the want of these qualities as if it had 
 
 done so directly and expressly. (/) And, upon the same ground, 
 
 not only an allegory, but a publication in hieroglyphics, or a 
 
 rebus or anagram, which are still more difficult to be understood, 
 
 may be a libel, {j) So a libel may be by asking questions ; for if 
 
 a man insinuates a fact in asking a question ; meaning thereby to 
 
 assert it, it is the same thing as if he asserted it in terms. (/»•) 
 
 Formerly it was the practice to say that words were to be taken 
 
 in the more lenient sense ; but that doctrine is now exploded : 
 
 they are not to be taken in the more lenient or more severe sense, 
 
 but in the sense which fairly belongs to them, and which they were 
 
 intended to convey. {I) 
 
 if) Rex V. Peltier, Holt on Libel, 78. that name, as we know the offences of 
 
 Eex r. D'Eon, 1 Rlac. R. 517. horse-stealing, forgery, &c., by the names 
 
 {(j) 1 Hawk. r. C. c. 73, ss. 1, 2, 3, 7. which the law has annexed to them." By 
 
 Bac. Abr. tit. Lihcl ; R. r. Yates, 12 Lord Camden in Rex v. Wilkes, 2 "Wils. 
 
 Cox, C. C. 233, and see as to libclhya 121. 
 
 picture, Du Best v. Beresford, 2 Campb. (0 1 Hawk. P. C. c. 73, s. 4. Bac. 
 
 511. As to defaming one who is dead, Abr. tit. Libel (A) 3. 
 i^eojmf, p. 208. (_/) Holt on Libel, 235, 236. 
 
 (h) A libel is termed Lihilhis famosus {k) Gathercole's case, 2 Lewin, 255, 
 
 sen infamatoria scriplura, and has been per Alderson, B. 
 
 nsnally treated of as scandal, written or (/) By Lord Ellenborough, C. J., in 
 
 expressed by symbols. Lamb. 8nx. Law. Rex r. Lambert and Perry, 2 Campb. 
 
 C4. Bract, lib. 3, c. 36. 3 Inst. 174. ,■> 403. And in a case of libel, Rex r. 
 
 ('0.125. 1 Lord Raym. 41(5. 2 Salk. AVatson and others, 2 T. R. 206, Biiller, 
 
 417, 418. Libel may be said to be a J., said, 'Upon occasions of this sort I 
 
 technical word, deriving its meaning liave never adopted any other nde than 
 
 rather from its use than its etymolog)-. that which has been fi-eijuentlv rejvated 
 
 'There is no other name but that of by Lord iLinsfidd to juries, desiring 
 
 ///'i/ ajiplicible to the ollence of libelling ; them to read the paper stated to be a 
 
 and we know the otleiir,- specifically jiy libel as men of common understanding.
 
 CHAP. III. § I.] 
 
 Definition of. 
 
 Upon the same principles it has been resolved that a de- 
 famatory writing, expressing only one or two letters of a name, 
 in such a manner that from what goes before, and follows 
 after, it must needs be understood to signify a particular per- 
 son, in the plain, obvious, and natural construction of the 
 whole, and would be nonsense if strained to any other meaning, 
 is as properly a libel as if it had exj)ressed the whole name at 
 large, (m) 
 
 An indictment lies for general imputations on a body of men, 
 though no individuals be pointed out, because such writings have 
 a tendency to inflame and disorder society, and are tlierefore 
 within the cognizance of the law, {n) And scandal published of 
 three or four persons is punishable on the complaint of one or 
 more, or all of them, (o) 
 
 It appears to have been considered that the remedies by action 
 and indictment for libels are co-extensive, and may be regarded as 
 upon the same footing, {jo) 
 
 Formerly, upon an indictment or criminal prosecution for a libel 
 the party could not justify that its contents were true. But the 
 6 & 7 Vict. c. 96, permits a defendant to plead to any indictment 
 or information for a defamatory libel that the libellous matters 
 are true, provided it was for the public benefit that such 
 matters should be published, (g) The ground of the former rule, 
 which still exists where no such plea is pleaded, is, in the case of 
 libels against religion, morality, or the constitution, the ind)lic 
 7nischlef, which libels are calculated to create in alienating tlie 
 minds of the people from religion and good morals, and rendering 
 them hostile to the government and magistracy of the country ; 
 and, where particular individuals are attacked, in causing such 
 irritation in their minds as may induce them to commit a breach 
 of the public peace, A libel against an individual may consist in 
 the exposure of some personal deformity, the actual existence of 
 which would only show the greater malice in the defendant ; and 
 even if it contain charges of misconduct founded in fact, the pub- 
 lication will not be the less likely to produce a violation of the public 
 tranquillity. It has been observed, that the greater appearance of 
 truth there may be in any malicious invective, it is so much the 
 more provoking ; and that, in a settled state of government, the 
 party grieved ought to complain, for every injury done to him, in 
 the ordinary course of law, and not by any means to avenge him- 
 
 179 
 
 Name of 
 person libelled 
 in blanks. 
 
 Indictment 
 will lie foi- a 
 libel on a body 
 of men. 
 
 Actions and 
 indictments 
 for libels co- 
 extensive. 
 
 The party 
 could not for- 
 merly justify 
 that the libel 
 was true, but 
 lie may now 
 in cases falling 
 within the 
 6 & 7 Vict, 
 c. OG. 
 
 and say whether in their minds it conveys 
 the idea imputed.' See AVoolnoth i;. Mea- 
 dows, 5 East, 463. 
 
 (»0 1 Hawk. P. C. c. 73, s. 5. Bac. 
 Abr. tit. Libel (A) 3, where it is said in 
 the marginal note that if an application 
 is madr tor an int'orniation in a case of 
 this kind, sonu^ (Viend to the party com- 
 plaining sliould, by aflidavit, state the 
 liaviiig read the libel, and umlcrstandiiig 
 and believing it to mean the party. Hoc 
 Du I'jost V. IJeresford, 2 Cam])b. 512. 
 
 {n) Holt on Libel, 237. Sec Lc Fauu 
 1'. Malcomson, 1 H. L. 637, 2'os<. 
 
 (o) Id. ibid. In Kex r. P.cnfield, 2 
 Pnirr. 980, it was held tliat an inlbrma- 
 tion lay against two lor singing a libel- 
 
 lous song on A. and 15., wliich first 
 abused A. and then 13. And it was said 
 that if the defendants had sung separate 
 stanzas, the one reflecting on A. and the 
 other on V>., the oll'encc would .still have 
 been entire. See Ilex r. Jeuour, 7 Jlod, 
 400. 
 
 (;;) Starkieon Libel, 150, 165, 550, 1st 
 edit. Holt (m Libel, 21. 5, 216. Hi-adlcyv. 
 IMethuen, 2 Ford's MS. 78. Tiiis must 
 be understood, however, of ca.ses wliere 
 the libel, from its nature and subject, 
 inllicts a private injury, and not of those 
 cases in which the ))ublic only can be 
 said to be all'ectcd by the libel. 
 
 (q) See the Act, 2>osl, ]\ 227.
 
 180 
 
 It in no (Ic- 
 fence tlmt it 
 was rojiifil 
 fniin Humo 
 other work. 
 
 OJ Lilx'i, ,f-c. 
 
 [liOOK V. 
 
 self hy (lie odious i)rocoe(liii<,' of a lihel. (/■) Sec fmtlicr as to this, 
 poxt, )). 20"). 
 
 A party will not bcexcu.sed by showing that the libel with which 
 he is charifcd was copied from some other work, even, though he 
 may have stated it to be merely a copy, anrl disclosed the name 
 of the- (iiii;iiial author at thf tiiiie of its pul)lication. («) 
 
 Petition to 
 the King. 
 
 Petitions to 
 Parliament. 
 
 Proceciliugs ii 
 courts of jus- 
 tice. 
 
 Sec. II. 
 Privileged Communications. 
 
 But there arc some circumstances which will prevent a publica- 
 tion from being deemed libellous. A petition to the King to be 
 relieved from doing what the King has directed the party to do, 
 \( bond fide and in re.spectfid terms, is no libel, though it call in 
 ([uestion the legality of the King's direction. James II. pub- 
 lished a declaration of liberty of conscience and worship to all 
 his subjects, dispensing with the oaths and tests prescribed by 
 statutes 25 & 30 Car. II., and directed that it should be read two 
 days in every church and chapel in the realm, and that the bishops 
 should distribute it in their dioceses that it might be so read. 
 The Archbisliop of Canterbury and six bisiiops presented a petition 
 to the King praying that he would not insist upon their distribut- 
 ing and reading it, principally because it was founded on such a 
 dispensing power as had ofted been declared illegal in Parliament, 
 and that they could not in prudence, honour, or conscience, so far 
 make themselves parties to it as to distribute and publish it. This 
 petition was treated as a libel : they were taken up and tried for 
 it. The publication was j^rovcd ; and Wright, C. J., and AUi- 
 bone, J., thought it a libel : but Holloway and Powell, JJ., thought 
 otherwise, there not being an ill intention of sedition in the bishops, 
 and the object of their petition being to free themselves from 
 blame in not complying with the King's command. The jury 
 found them not guilty, (t) 
 
 It has been resolved that no false or scandalous matter contained 
 in a petition to a committee of Parliament, or in articles of the 
 peace exhibited to justices of peace, or in any other proceeding 
 in a regular course of justice, will make the complaint amount to 
 a libel ; for it would be a great discouragement to suitors to sub- 
 ject them to public prosecution in respect of their applications to 
 
 (r) 1 Hawk. P. C. c. 73, s. 6. Bac. 
 Abr. tit. Libel (A.) 5. 4 Blac. Com. 150, 
 151. 2 Staikie on Libel, 2.')1, ct scq. 
 Holt ou Libel, 275, cl scq. But whilst 
 the truth was no justification in a crimi- 
 nal prosecution, yet in many instances 
 it was considered as an extenuation of the 
 otl'ence ; and the Court of King's Bench 
 has laid down this general rule, that it 
 will not grant an information for a libel 
 \inless tiie ])rosecutor who applies for it 
 makes an affidavit asserting directly and 
 pointedly tliat he is iiinoct'ut of the 
 charge imputed to liim. This rule, how- 
 ever, may be dispensed with if the person 
 libelled resides abroad, or if the imputa- 
 
 tions of the libel are general and in- 
 definite, or if it is a charge against the 
 prosecutor for language which he has 
 held in Parliament. 4 Blac. Com. 151, 
 note (6). Dougl. 271, 372. R. r. 
 Aunger, 12 Cox, C. C. 407. 
 
 {s) De Crespigny v. Wellesley, 5 Biug. 
 392. 2 M. & P. 695. See R. v. Sullivan, 
 11 Cox, C. C. 44, (Irish) ; Reg. v. New- 
 man, post ; M'Pherson v. Daniels, 10 B. 
 & C. 263 ; Watkin v. Hall, 37L. J. (^ B. 
 125. 
 
 (f) Case of the Seven Bishops, 12 St. Tri. 
 183 : and sec pos/, as to communications 
 made bond jidc, and in the projter course 
 of proceedings in courts of justice, &c.
 
 CHAP. III. § Ti.] Privileged Communications. 181 
 
 a court of justice, {u) Thus where the defendant, in a certain 
 affidavit before the Court, had said that the plaintiff in a former 
 affidavit against the defendant had sworn falsely, the Court held 
 that this was not libellous ; for in every dispute in a court of 
 justice, where one by affidavit charges a thing and the other denies 
 it, the charges must be contradictory, and there must be affirmation 
 of falsehood, (v) No presentment of a grand jury can be a libel, 
 not only because persons who are supposed to be returned without 
 their own seeking, and are sworn to act impartially, shall be pre- 
 sumed to have proper evidence for what they do, but also because 
 it would be of the utmost ill consequence in any way to discourage 
 them from making their inquiries with that freedom and readiness 
 which the public good requires, {tv) Where an action was brought 
 against the president of a militar}'- court of inquiry for a libel 
 contained in the minutes of such court, which had been delivered 
 by the defendant to the commander-in-chief and deposited in his 
 office, it was held that these minutes were a privileged communi- 
 cation, and properly rejected when tendered at the trial in proof 
 of the alleged libel ; and also that a copy of them had been 
 properly rejected, {x) And where a court-martial, after stating 
 in their sentence the acquittal of an officer against whom a charge 
 had been preferred, subjoined thereto a declaration of their oijinion, 
 that the charge was malicious and groundless, and that the con- 
 duct of the prosecutor in falsely calumniating the accused was 
 highly injurious to the service, it was held that the president of 
 the court-martial was not liable to an action for a libel for having 
 delivered such sentence and declaration to the judge-advocate ; 
 and Mansfield, C. J., in delivering his opinion, said : ' If it appear 
 that the charges are absolutely without foundation, is the president 
 of the court-martial to remain perfectl}^ silent on the conduct of 
 the prosecutor, or can it be any offence for him to state that the 
 charge is groundless and malicious?' {y) 
 
 It having been reported that the plaintiff, an officer in the army, 
 had made charges against his brother officers, the commander-iu- 
 
 1111 
 
 chief directed that a court of enquiry should be assembled wlio 
 should enquire into the matter, and report thereon to the com- 
 mander-in-chief. A court was held, at Avhich the defendant, an 
 officer in the army, was required to attend as a witness. Being 
 examined as a witness he gave vlvd voce evidence, and then hantlcd 
 in a paper containing in substance a repetition of his evidence, with 
 some additions upon the subject, and this paper w\as received by 
 the court. A report was made by the court to the commander-in- 
 chief. The plaintiff applied for a court-martial upon the defendant 
 for such his conduct towards the plaintiff. The application was 
 
 {u) 1 Hawk. r. V. c. 73, s. 8. 15ac. llcvis v. Smith, IS V. 15. Vl<\. Hciulcr- 
 
 Abr. tit. Libel (A.) 4. And see the .sour, lirooinheail, 4 H. & N. .")l5l», ca.ses 
 
 judgment of Holroyd, J., in Hodgson (,'. of niulicious and false allidavits. See 
 
 Scarlett, 1 W. k A. 232. It isholdcnby Fitzjohu v. iMackiuder, i» C. U. (N. S.) 
 
 some that no want of jurisdiction in the 505 ; Doyle v. O'Doherty, C. & M. 
 
 court to which the comiilaiut shall be ex- 418. 
 
 liibited will make it a libel ; because the (w) 1 Hawk. P. C. C. 73, .s. 8. 15ac. 
 
 mistake of the court is not imi)utahlc to Abr. tit. Libel (A.) 
 
 the party, but to his counsel ; see 1 Hawk. (a;) Home v. Lord F. C. P.cntinck, 4 
 
 r. C. c. 73, s. 8, 1 Starkie on Libel, 254, Moore, 5(53. 
 2nd edit. (y) Jekyll v. Sir John iloorc, 2 N. IJ. 
 
 (v) Astley v. Younge, 2 Pnirr. 817. 341.
 
 ISii 
 
 Of lAhel, &c. 
 
 [book v. 
 
 Ami speeches 
 of incinliers of 
 rnrliaincnt arc 
 privileged. 
 
 llow far the 
 publication of 
 ]irocceilings iu 
 courts of jus- 
 tice is allow- 
 able. 
 
 not ncccdcd to, niul tlic plaintiff" l)rou),'lit an action against tlie 
 (IcfciKlant, in respect of tin; written paper as a libel, and in respect 
 of tlic vird Voce evidence as slander. 'J'lie judge at the trial ruled 
 thai (lie action woidd not lie if the verbal and written statements 
 eomplainorl f»f wore made by the defendant, being a military officer, 
 in tlic course of ;i military oiKiuir}' in relation to tlie conduct of the 
 plaintiff", he being also a military officer, and with reference to the 
 subject of the enquiry, although the defendant had acted maid 
 Ji'lc, and with actual malice, and without any rea.sonaf)le and pro- 
 bable cau.se, and with a knowledge that the statement made and 
 handed in by liim as aforesaid was false. A bill of exceptions 
 having l)cen tendered : Held, that this nding as to the law wa.s 
 correct. Held, also,' that tlie evidence of the defendant was but a 
 parcel of the minutes of the proceedings of the Court, which, when 
 reported and delivered to the commander-in-chief, was received 
 and held by him on behalf of the sovereign, and as such was inad- 
 missible in evidence, (z) 
 
 The members of the two houses of Parliament, by reason of 
 their privilege, are not answerable at law for any personal reflec- 
 tions on individuals contained in speeches in their respective 
 houses ; for policy requires that those who are by the constitution 
 appointed to provide for the safety and welfare of the public, 
 should, in the execution of their high functions, be wholly unin- 
 fluenced by private considerations, (a) 
 
 Thus the actual proceedings in courts of ju.stice and in Parlia- 
 ment are exempted from being deemed libellous ; it becomes 
 important to inquire in the next place how far the same privilege 
 Avill be extended to communications of those proceedings to the 
 public, made with impartiality and correctness. 
 
 In Wason v. IFalter, 4 L. K Q. B. 73, 38 L. J. Q. B. 34, Cock- 
 burn, C. J., in delivering the judgment of the Court said, that 
 faithful and fair reports of the proceedings of courts of justice, 
 though the character of individuals may incidentally suffer, are 
 ])rivileged, and that for the publication of such reports the pub- 
 lishers are neither criminally nor civilly responsible. (6) But a pub- 
 lication of the proceedings in a court of justice will not be protected 
 unless it be a tme and hona^t statement of those proceedings, (e) 
 And it has been said that it must not be taken for granted that 
 the publication of every matter which passes in a court of justice, 
 however truly represented, is, under all circuni-stances and with 
 whatever motive published, justifiable ; and that such doctrine 
 must be taken with grains of allowance, {d) And Lord Ellen- 
 
 (:) Dawkius r. Lord Eokeby, 42 L. J. 
 Q. B. 63, Ex. Ch. ct 2h'r Kelly, C. B., 
 no action lies against parties or witnesses 
 for anything said or done, although 
 falsely and maliciously, and without any 
 re.asonable or probaMe cause, in the 
 ordinary course of any proceedings in a 
 court of justice. AlHiiued in H. L. 45, 
 L. J. I,), n. 8. 
 
 (a) Holt on Libel, IPO. 1 Starkie on 
 Libel, -239. Rox ». Lord Abingdon, 1 
 Jisp. Kep. 2-2t). By 4 Hen. b, c. 3, 
 nienibors of Parliament are protected 
 fruni all charges against them for any- 
 thing said in either House ; and this "is 
 
 further declared in the Bill of Eights, 1 
 "SVill. & il. St. 2, c. 2. 
 
 (6) See also Curry v. "Walter, 1 Bos. & 
 Pull, 523. A defence that the matter 
 complained of is so privileged, can be 
 given in evidence mider not guiltv. 
 
 (c) Waterfield v. The Bishop of Chi- 
 chester, 2 Jlod. lis. Eex V. ^V^ight, S 
 T. Ecp. 2i*7, 29S, per Lawrence, J. 
 Stiles V. Nokes, 7 East, 493 ; Wason r. 
 Walter, 38 L. J. Q. B. 34. 
 
 (d) By Lord Ellen borough, C. J., and 
 Grose, J., iu Stiles r. Nokes, 7 East, 
 503.
 
 CHAP. III. § II.] Privileged Communications. 183 
 
 borough, C. J., said, ' It often happens that circumstances necessary 
 for the sake of public justice to be disclosed by a witness in a judi- 
 cial inquiry are very distressing, to the feelings of individuals on 
 whom they reflect : and if such circumstances were afterwards 
 wantonly published, I should hesitate to say that such unnecessary 
 publication was not libellous merely because the matter had been 
 given in evidence in a court of justice.' {e) In a subsequent case, 
 not relating directly to this point, but to the publication of pro- 
 ceedings in Parliament, Bayley, J., said, ' It has been argued that 
 the proceedings of courts of justice are open to publication. Against 
 that, as an unqualified proposition, I enter my protest. Suppose an 
 indictment for blasphemy, or a trial where indecent evidence was 
 necessarily introduced ; would every one be at liberty to poison the 
 minds of the public, by circulating that which for the jDurposes of 
 justice the Court is bound to hear ? I should think not : and it is 
 not true, therefore, that in all instances the proceedings of a court 
 of justice may be published.' (/) This doctrine was recognized 
 and acted upon in a later case. The defendant's husband had been 
 convicted of publishing a blasphemous libel, after having in his de- 
 fence at the trial used arguments and statements of a blasphemous 
 and iu decent description. His wife published the trial ; and, upon 
 showing cause against a rule for a criminal information, it was 
 urged that she had a right to publish what actually took place in a 
 court of justice : but the Court were clear she had not, if that state- 
 ment contained anything seditious, blasphemous, or indecent : and 
 the rule was made absolute, {(j) And where it is allowable to pub- 
 lish what passes in a court of justice it is not essential that every 
 word of the evidence, of the speeches, and of what was said by the 
 judge, should be inserted ; if the report is substantially a fair and 
 correct report of what took place in a court of justice, it is privi- 
 leged, (/i) It may sometimes not be justifiable to publish every- 
 thing a counsel says in the course of his speech, (/) but no action 
 will lie against a barrister for words spoken by liim in a cause, 
 which are pertinent to the matter in issue, (j) And an attorney 
 acting as an advocate has the same privilege, {h) 
 
 The party making the publication will not be justified, unless he 
 confines himself to what actually passed in court. {I) Before the case 
 of Wason v. Walter, noticed post, p. 185, was decided, it was an esta- 
 blished principle, upon which the privilege of publishing a report of 
 ail?/ judicial proceedings was admitted to rest, that sucli report must 
 be strictly confined to the actual proceedings in court, and must 
 contain no defamatory observations or comments from any quarter 
 whatever, in addition to what formed strictl}^ and properly the legal 
 
 (c) Ibid. And sec Rox v. Salisbury, Scott, 2 C. & K. 580. Hoaro v. Silvcr- 
 
 1 Lord Kaym. 341, that it is indict- lock, 9 C. B. 20. See Lewis r. AValter, 
 
 able to publish a scaudalous petitiou 4 B. & A. 04"). 
 
 to the House of Lords, or a scandalous (!) Per Bayley, J. , Flint v. Pike, 4 B. 
 
 affidavit made in a court of justice. & 0. 47.3. '5 D. i'(c l\. .'')28. I'er Holroyd, 
 
 (/) Rex V. Crecvey, 1 M. & S. 28L J., ibid, and jier Tindal, V. i. IJoberts 
 
 ((j) Rex V. Carlisle, 3 B. & A. 167; v. Brown, lu IJinj,'. 519; Saunders r. 
 
 Steele v. Brannan, 41 L. J. M. C. 85, Mills, 6 Bing. 213. S. C. 3 M. & V. 
 
 where a report of proceedings in a court 520 ; H. v. Crecvey, 1 M. & Sel. 281. 
 
 of justice was ludil not to be privileged, {j) Hodgson v. Scarlett, 1 B. & Aid. 
 
 as the same was olfensivc to public de- 232. 
 
 cency. (/. ) Mackay r. Ford, 5 IT. & N. 702. 
 
 (7i) Andrews?). Chapman, 3 C. & K. (/) Delcgal v. lliglilrv, 3 B. N. <;. 
 
 286, Lord Campbell, C. J. See Smith v. 950.
 
 IS I 
 
 I'rorocdinpt 
 licforo jimti'-cs 
 of tlio pvnco. 
 
 Of Lilx'1, (t-r. 
 
 [I'.OOK V. 
 
 I' J" }Mrtc 
 t'Miininations 
 l.i'U.re .-i 
 iuai,'istr;itc. 
 
 Examination of 
 a prisoner by 
 registrar in 
 b.iuiiruptcy. 
 
 proccoi line's. I'Ut porliaps it will now bo considered that a fair 
 conimcnt upon any matter of piiMic interest is privileged, (in) 
 
 Pidceedin^'s Ix'fore nia<,Mstratos, under the 11 iV 12 Vict. c. 4.S, 
 with respect to summary convictions and orders, in which, after 
 hoth i)arties arc heard, a final judgment is f,dven, arc strictly of a 
 judicial nature, and the trial and the judj,Mnent may lawfully bo 
 "made the subject of a printed report, if that rejjort be impartial 
 and correct ; {ii) and the like privilege extends to the publication of 
 ])n)eeedings taking place publiely behjre a magistrate on the preli- 
 minary investigation of a charge of an in<lietable offence, termi- 
 nating in tlic discharge of the party charged, although there were 
 several liearings, and separate publications as to each hearing ; (o) 
 but it has not yet been decided that the publication of such ])reli- 
 miuary iuijuiries is lawful where they end in the case being sent for 
 triid. (p) The publication of preliminary examinations before a 
 magistrate, taken ex ixirtc, have been held not to come within the 
 principle by which the fair reports of proceedings in courts of jus- 
 tice are privileged. It has been said that such publications have a 
 tendency to cause great miscliief by perverting the public mind, 
 and disturl)ing the course of jrislice ; and, if they contain libellous 
 matter, will he considered as criminal. (7) And the Court of King's 
 Bench has granted a criminal information for publishing in a news- 
 paper a statement of the evidence given before a coroner's jury, 
 accompanied with comments ; although the statement was coiTect, 
 and the party had no malicious motive in the publication, (r) 
 But in ^Yason v. Walter, 88 L. J. Q. B. 34, decided since the 
 above cases, Cockburn, C. J., Avhilst delivering the judgment 
 of the Court, is reported to have said, ' Even in quite recent 
 days, judges, in holding the publication of the proceedings of 
 courts of "justice lawful, have thought it necessary to distinguish 
 what are called ex parte proceedings as a probable exception from 
 the operation of the rule. Yet ex imrte proceedings before magis- 
 trates, and even before this Court, as, for instance, on applica- 
 tion for criminal informations, are published every day ; but such 
 a thing as an action or indictment, founded on a report of such 
 an ex ixLvte proceeding, is unheard of, and if any such action or in- 
 dictment should be brought, it would probably be held that the 
 true criterion of the privilege is not whether the report was, or was 
 not, ex }xirte, but whether it was a fair and honest report of Avhat 
 had taken place, published simply Avith a view to the information 
 of the public, and innocent of all intention to do injury to the re- 
 putation of the party aff"ected.' 
 
 The examination of a prisoner in gaol by the registrar in bank- 
 ruptcy, under the 101st section of the Bankruptcy Act, ISGl, is a 
 public judicial proceeding, and therefore a fair and correct report, 
 
 (»n) Delegal r. Ilighlev, 3 B. N. C. 
 950 ; Lewis r. Clemeut, 3 B. & A. 70-2. 
 
 («) Lewis I-. Levy, E. B. & E. 537. 
 
 (o) Ibid. 
 
 (p) Hud. 
 
 (7) Hex f. Lee, 5 Esp. 1-23. Kex r. 
 Eislur, '2 C'aiupb. 563. Duiuan v. 
 Tiiwaites. 3 B. k C. 556. 5 D. & K. 
 447. Delegal v. Higbley, 3 B. N. (.". 
 950 ; but spc the remarks in Lewis r. 
 Levy, supra. Ami still less can the dc- 
 
 feiulant justify the publication of a matter 
 which was not brought before the magis- 
 trate in his judicial character, or in the 
 regular discharge of his magisterial func- 
 tions. M 'Gregor v. Thwaites and another, 
 3 B. & C. 2i ; i D. & K. 695. 
 
 O) Kcx r. Fleet. 1 Barn. & Aid. 379. 
 !^ee Eabt v. Chajiman, M. & M. 46. 2 
 C. & P. 570 ; Charlton v. Watton, 6 
 C. & P. 835 ; K. v. Grav, 10 Cox, C. C 
 1S4.
 
 CHAP. III. § II,] Privile(jed Communications. 
 
 without comment, of the examination, is privileged, even tliough it 
 may contain statements which injuriously affect the character of a 
 third person, (s) 
 
 In general a fair report in a newspaper of what takes place at a 
 public meeting, if it contain matter defamatory of an individual, is 
 not privileged. Therefore a fair report of what took place at a 
 public meeting of the West Hartlepool Commissioners, acting under 
 the powers of an Act of Parliament, and which contained injurious 
 expressions concerning an individual, is not privileged. (J) 
 
 If a report made by a medical officer of health to a vestry 
 board, in pursuance of the Metropolitan Local Management Act 
 (18 & 19 Vict. c. 120) contains libellous matter, a uew.spapcr pro- 
 prietor is not justified in publishing it. (it) 
 
 The publication of a faithful report of a debate in either house 
 of Parliament is privileged, so that the publisher is not responsible 
 for defamatory statements made in the course of the debate so re- 
 ported and published, and the publication of articles fairly com- 
 menting upon the debate so reported and published is equally pri- 
 vileged, {v) The printing and delivering a petition to members of 
 a committee of the House of Commons, being according to the 
 order of proceedings of Parliament and their committees, has been 
 held to be justifiable, (lo) 
 
 It was decided upon demurrer in a case, which underwent great 
 consideration, that it is no defence in law to an action for publish- 
 ing a libel, that the defamatory matter is part of a document 
 which was, by order of the House of Commons, laid before the 
 House, and thereupon became part of the proceedings of the 
 House, and Avliich was afterwards, by orders of the House, printed 
 
 185 
 
 Proceedings of 
 public meet- 
 ings. 
 
 Medical report 
 to a vestry. 
 
 How far the 
 
 publication of 
 proceedings in 
 Parliament is 
 allowable. 
 
 Stockdale r. 
 Hansard. 
 
 (s) Ryalls r. Leader, 35 L. J. Ex. 185 ; 
 L. E. Ex. 29(5. 
 
 {t) Davison V. Duncan, 7 E. & B. 229. 
 
 \u) Popham v. Pickburn, 7 H. & N. 
 891. 
 
 {v) Wason v. Walter, 38 L. J. (,). B. 
 84, etjJO' cur., " our judgment will in no 
 way interfere with the decisions that tlie 
 publication of a single speech for the pur- 
 pose or with the effect of injuring an in- 
 dividual will be unlawlul, as was held in 
 the cases of U. v. Lord Abingdon, 1 Esp. 
 225, and IL v. C'rcevey, 1 M. &S. 273. At 
 the same time it may be as well to observe 
 that we are disposed to agree with what 
 was said in Davidson v. Duncan, 7 E. & 
 B. 232, as to such a speech being privi- 
 leged if bona Jide publish(!d by a member 
 for the information of his constituents. 
 But whatever would dei)rive a report of 
 the proceedings in a court of justice of 
 immunity will eijually apply to a report 
 of proceedings in luulianient. AVe pass 
 on to tlu! second luamh of this rule, 
 wliich has nlercnce to alleged misdirec- 
 tion in respect of the second count of the 
 declaration, which is founded on the 
 article in the Times, commenting on tho 
 debate in the House of Lords ; and tlie 
 conduct of the plaintilf in iirel'eriing the 
 petition which gave rist! to it. We arc 
 of opinion that the direction given to the 
 ury was perfectly correct. Phc publi- 
 
 cation of the debate liaving been justifi- 
 alde, the jury were properly told that the 
 subject was, fur the reasons we have 
 already adverted to, ])re-eminently one of 
 public interest, and therefore one on 
 which public comment and observation 
 might properly be made ; and that con- 
 seciuently the occasion was jirivileged in 
 the al)senee of malice. As to the latter, 
 the jury were told that they must be 
 satisfied that the arti(de was au honest 
 and fair comment on the facts ; in other 
 words, that, in the first place, they must 
 lie satisfied tliat the comments had been 
 made with an honest belief in their jus- 
 tice ; but that this was not enough, inas- 
 much as such b(dief might originate in 
 the blindness of party zeal, or in jjcrsonal 
 or political aversion, that a person taking 
 upon himself laiblidy to criticize and to 
 condemn the conduct or motives of 
 another must bring to the task, not only 
 au honest sense of justice, but also a rea- 
 sonable degree of judgment and modera- 
 tion, so tliat t'le result may be what a 
 jury shall deem under tlie circumstances 
 of the ca.se a fair and legitimate criticism' 
 on the comluct and motives of the i>arty 
 who is the object of censure. See lien- 
 wood r. Harrison, 11 L. J. C P. 20(1. 
 
 {?r) I.akc r. King, 1 .'^aun<l. 131. See 
 thr judgment (if hold Kllenborough, (.'. 
 J., iu Kcx r. (.'recvey, 1 M. & S. 278.
 
 18G 
 
 Of Libel, &c. 
 
 [uuoiv V. 
 
 rroocctlings, 
 criminal or 
 civil, against 
 persons for 
 publication 
 of papers 
 printed by 
 order of 
 Parliament, to 
 be sta.vcd, 
 upon delivery 
 of a certific<itc 
 and affidavit to 
 the effect that 
 such jiublica- 
 tion is by order 
 of either 
 House of Par- 
 liament. 
 
 mill |nil)lisliO(l by tlio (Icfeiidant ; aiul that tlio Honso of Commons 
 hail thcrctulore resolved, ' tliat the power of publishing such of its 
 reports, votes, and proceedings, as it shall deem necessary or con- 
 duiive to th<! public interests, is an essential incident to the con- 
 st il iitinnal functions of Parliament, more especially to the Commons' 
 House of I'arliainent, as the representative portion of it.' (x) 
 
 In consi'quence of this decision the 8 i*c 4 Vict. c. [), was passed, 
 which by Sec. 1, reciting, 'whereas it is essential to the due and 
 ellectual e.xercise and discharge of the functions and duties of 
 Parliament, and to the promotion of wise legislation, that no 
 obstructions or impediments should exist to the publication of such 
 of the reports, ])apers, votes, or proceedings of either Hou.sc of 
 Parliament as such House of Parliament may deem fit or necessary 
 to be ])ublishctl : And whereas obstructions or impediments to such 
 publication have arisen, and hereafter may arise, by means of civil 
 or criminal proceedings being taken against persons employed by 
 or acting under the authority of the Houses of Parliament, or one 
 of then), in the publication of such reports, papers, votes, or pro- 
 ceedings ; by reason and for remedy whereof it is expedient that 
 more speedy protection should be afforded to all persons acting 
 under the authority aforesaid, and that all .such civil or criminal 
 jDroceediugs should be summarily put an end to and determined 
 in manner hereinafter mentioned :' enacts, ' that it shall and may 
 be lawful for any person or persons who now is or are, or hereafter 
 shall be, a defendant or defendants in any civil or criminal proceed- 
 ing commenced or prosecuted in any manner soever, for or on 
 account or in respect of the publication of any such report, paper, 
 votes, or proceedings by such person or persons, or by his, her, or 
 their servant or servants, by or under the authority of either House 
 of Parliament, to bring before the court in which such proceeding 
 shall have been or shall be so commenced or prosecuted, or before 
 any judge of the same (if one of the superior courts of Westminster), 
 first giving twenty-four hours' notice of his intention so to do to 
 the prosecutor or plaintiff in such proceeding, a certificate under 
 the hand of the Lord High Chancellor of Great Britain, or the 
 Lord Keeper of the Great Seal, or of the Speaker of the House of 
 Lords, for the time being, or of the Clerk of the Parliaments, or of 
 the Speaker of the House of Commons, or of the Clerk of the same 
 House, stating that the report, paper, votes, or proceedings, as the 
 case may be, in respect whereof such civil or criminal proceeding 
 shall have been commenced or prosecuted, was published by such 
 person or persons, or by his, her, or their servant or servants, by 
 order or under the authority of the House of Lords or of the House 
 of Commons, as the case maj- be, together with an affidavit verify- 
 ing such certificate; and such court or judge shall thereupon im- 
 mediately stay such civil or crnninal proceeding, and the same, and 
 every writ or process issued therein, shall be and shall be deemed 
 
 {x) Stockdalo V. Hansard, 9 A. & E. 
 1, 2 r. & D. 1. See Wasou r. Walter, 
 supra, per Cockhum, C. J. ; Henwood r. 
 Harrison, 41 L. J. C. P. 20(5, per AViUes, 
 .1., 'By3S> Geo. 3, c. 79, (An Act for 
 the more effectual suppression of societies 
 established for seditious and treasonable 
 
 purposes ; and for better preventing 
 treasonable and seditious practices) s. 2S, 
 nothing in this Act contained shall ex- 
 tend or be constnied to extend to any 
 papers printed by the authority and for 
 the use of either House of Parliament.' 
 See 32 & 33 Vict. c. 24.
 
 CHAP. III. § II.] Privileged Communications. 187 
 
 and taken to be finally put an end to, determined, and superseded 
 by virtue of this Act.' {y) 
 
 Sec. 2. ' In case of any civil or criminal proceeding hereafter to Proceedings to 
 be commenced or prosecuted for or on account or in respect of the ^^'^ stayed 
 publication of any copy of such report, paper, votes, or proceed- ^euced°iE' 
 ings, it shall be lawful for the defendant or defendants at any stage respect of a 
 of the proceedings to lay before the court or judge such report, copy of an 
 paper, votes, or proceedings, and such copy, with an affidavit veri- reporT^&f *^* 
 fying such report, paper, votes, or proceedings, and the correctness 
 of such copy, and the court or judge shall immediately stay such 
 civil or criminal proceeding, and the same, and every writ or process 
 issued therein, shall be and shall be deemed and taken to be finally 
 put an end to, determined, and superseded by virtue of this Act.' 
 
 Sec. 3. ' It shall be lawful in any civil or criminal proceeding In any pvo- 
 to be commenced or prosecuted for printinor any extract from or ceedings it 
 
 ^ . , f> 1 , 1 ^^ . ■ may be shown 
 
 an abstract oi such report, paper, votes, or proceedmgs, to give tiiat, such ex- 
 in evidence under the general issue such report, paper, votes, or tract was bond 
 proceedings, and to show that such exti'act or abstract was pub- •^'^'^ made, 
 lished bond fide and without malice ; and if such shall be the 
 opinion of the jury a verdict of not guilty shall be entered for the 
 defendant or defendants.' 
 
 Sec. 4. ' Nothing herein contained shall be deemed or taken, or 
 held or construed, directly or indirectly, by implication or otherwise, 
 to affect the privileges of Parliament in any manner whatsoever.' 
 
 A publication commenting upon a literary work, exposing its Comments 
 follies and errors, and holding up the author to ridicule, will not "':'°j •'te'"''^>'y 
 be deemed a libel, provided such comment does not exceed the 
 limits of fair and candid criticism, by attacking the character of 
 the writer, unconnected with his publication, (z) But if a per- 
 son, under the pretence of criticising a literary work, defames 
 the private character of the author, and, instead of writing in the 
 spirit and for the purpose of fair and candid discussion, travels 
 into collateral matter, and introduces facts not stated in the work, 
 accompanied with injurious comments upon them, such person is 
 a libeller. («) So if a reviewer imputes base, sordid, dishonest, 
 and wicked motives, it is no answer that the reviewer published 
 only what he believed was correct and true, (h) A fair and candid 
 comment on a place of public entertainment, in a newspaper, is 
 not a libel, (c) And there is no distinction between a handbill, 
 circular, or advertisement of a tradesman and a book ; both arc 
 
 (y) The Act is imperative upon the unless the conti'ary appears on the face 
 
 Court to stay proceedings. Stockdale v. tlicreof, put in his work as part of his 
 
 Hansard, 11 A. & E. 297. 3 V. & D. case (S. C. and sec i V. k F. ',139. ) 
 346. (<() Nif,ditinj(ah' r. .Stockdale, 4<) Geo. 
 
 {z) Carr v. Hood, 1 Camph. 35;'). And 3, cor. Ellenborouf,'h, C. .T. Selw. N. 1\ 
 
 in an action for a libel ujion the plaintill' 1044. It is lawful to aniniadvcrt upon 
 
 in his business of a bookseller, accusinfj the conduct of a bookscdler in publisliing 
 
 him of being in the habit of jiublisliiiig books of an iniiiro|»er tcntlcncy. Tabart 
 
 immoral and foolisli books, the defendant, r. Tipper, 1 ("ampb. 3.')4. Anil .see ller- 
 
 under the plea of not guilty, may adiluce riott r. Stuart, 1 Ksp. 437, and Stuart r. 
 
 eridenco to sliow tliat tlie .su])posed libel Lovell, 2 Stai'k. K. !Ki. 
 is a fair stricture u])ou the general run of (li) Cam])bell v. Spottiswoode, 31 L. J. 
 
 the plaintiffs imblications. Tabart r. Q. I'.. 18."). 3 1'.. & S. 7<59. 
 Tipper, 1 Campb. 350 ; Strauss r. (<•) Dibilen v. Swan, 1 Esp. X. P. C. 
 
 Francis, 4 F. & F. 1107. If tlie plaintiff 28 ; and see also Ashley r. Harrison, 1 
 
 contends that the alleged libel exceeds Esp. N. P. C. 48. Peakc, N. P. C. 191. 
 the limits of fair criticism, ho should,
 
 lb8 
 
 RcrmonH. 
 
 Ci)n<1u('t nt 
 imMic inert - 
 ing. 
 
 ConlMlfiti.il 
 cniniiiuiiiL-:k- 
 tiouB. 
 
 Of LihvJ, cCv. 
 
 [book 
 
 litor.'irv ijrodiictions, and uri; addre.ssud to the pnl>rK;, and b(jtli are 
 sul)jt'(i to siicli cotnnienls as tlo ni^t exceed tlie bounds of lair and 
 ri'asnnal)li' c-riticisni. ('/) 
 
 It has Ik'cm {loiil)te(l wliellier the preaching a sermon, in tlic 
 ordinary luddc of a clcr<,fynian's duty, makes it })ublic property, 
 so JUS to allow observations upon it in the same way that a publi- 
 cation of a literary work does, (e) 
 
 A fair comn)ent in a newspaper upon the conduct of a person 
 atl< iiiling a meeting, held for the purpose of hearing a candidate 
 at a parliamentary election, was held to be privileged. (/) 
 
 Conrtdential communications are in some cases privileged : as 
 where it was holden that a letter written contidentially to persons 
 who employed A. as their solicitor, conveying charges injurious to 
 his ])rofessional character in the management of certain concerns 
 which they had entrusted to him, and in which B., the writer of 
 the letter, was likewise interested, was not a libel, {(j) And if a 
 person, in a private letter to the party, should expostulate with 
 him about some vices, of which he apprehends him to be guilty, 
 and desire him to refrain from them ; or if a person should send 
 such a letter to a father, in relation to some faults of his children ; 
 these, it seems, w'ould not be considered as libellous, but as acts 
 of friendship, not designed for defamation but reformation. {It) 
 But this doctrine must be applied with some caution ; since the 
 sending an abusive letter tilled with provoking language to 
 another, is an otfence of a public nature, and punishable as such, 
 inasmuch as it tends to create ill blood, and cause a disturbance of 
 the public peace; (i) and the reason asssigned by Lord Bacon, 
 why such private letter should be punishable, seems to be a very 
 sufhcient one, namely, that it enforces the party to whom the 
 letter is directed to publish it to his friends, and thus induces 
 a compulsory publication, {j) And though a letter written by a 
 master, in fjivincj a character of a servant, will not be libellous, 
 unless its contents be not only false but malicious ; (/i) yet in such 
 a case malice may be inferred from the circumstances. (/) 
 
 Where a writer is acting on any duty, legal or moral, towards 
 the person to whom he writes, or where he has by his situation to 
 protect the interests of another, that which he writes under such 
 circumstances is a privileged communication, if he writes it bond 
 fide. If, tlierefore, a tenant be desired by his landlord to make 
 communications to him in respect of any neglect of duty in his 
 gamekeepers, any communication made by him in respect of any 
 
 (d) Paris i-. Levy, 9 C. B. (X. S.) 342. 
 
 (c) Gathercole i\ Miall, 15 M. & W. 
 .319. Sco. Kellv v. Tiuling, 35 L. J. 
 Q. B. 231, noticed post, p. 192. 
 
 (/) Djivies V. Duncan, 43 L. .T. C. V. 
 185. 
 
 (7) M'Doiigall V. Claridgc, 1 C'anipb. 
 '267. Wright v. Woodgate, 1 T. & G. 
 12. 
 
 ih) IVaoock v. Sir George Keynell, 
 2 Brownl. 151, 152. Bac. Abr. tit Lihd 
 {A.) 2, in the notes. 
 
 (0 Bac. Abr. tit. Libel (B.) 2. IJex 
 r. Cator, 2 Eiist, K. 361. Thorleyr. T.ord 
 Kcny, 4 Taunt. 3."),"). In the last ca.se the 
 letter was unsealed, and opened and read 
 
 by the bearer. 
 
 (j) Poph. 189, cited in Holt ou Libel, 
 222. 
 
 (A) "Weatherstone r. Hawkins, 1 T. II. 
 110. Ednioiidson r. Stephenson, Bull. 
 X. P. 8. Child V. AfHeck, 9 B. & C. 403. 
 4 M. & P. 338. Mauby v. Witt, 18 C. B. 
 544. Taylor r. Hawkius, 16 Q. B. 308. 
 iSomerville v. Hawkins, 10 C. B. 583. 
 tJardener v. Slade, 13 Q. B. 796. Croft 
 r. Stevens, 6 H. 4: N. 570. 
 
 (/) Pogers r. Sir G. Clifton, 3 Bos. 
 & Pul. 587. Palteson i'. Jones, 8 B. & C. 
 578. 3 M. & P. 101. Kelly r. Parting- 
 ton, 4 B. & Ad. 700. 2 Ncv. & M. 
 460.
 
 CHAr. III. § II.] Priviler/ed Communications. 189 
 
 such neglect of duty is privileged, if written bond fide, and on 
 the supposition that he was doing his duty to his landlord, (m) 
 The plaintiff was the agent of the defendants, a trading company, 
 and it was part of his duty to furnish them with an account of his 
 transactions, to enable them to prepare the balance-sheet for the 
 inspection of the shareholders. This balance-sheet was prepared 
 and duly referred to the auditors, who reported that thei'e was a 
 deficiency, for which the plaintiff was responsible, and that his 
 accounts had been badly kept. There was evidence that an ex- 
 planation had been offered to the auditors, which they had disre- 
 garded, but no evidence that the directors had any knowledge of 
 this explanation. The directors, after laying the accounts before 
 a general meeting of the shareholders, caused a letter containing 
 the part of the report which affected the character of the plaintitf" 
 to be printed and forwarded to the absent shareholders : Held, 
 first, that this letter was published on a privileged occasion, as it 
 was the duty of the defendants to communicate to all the share- 
 holders any part of the report of the auditors which materially 
 affected the accounts of the company ; secondly, that there was no 
 intrinsic or extrinsic evidence of malice to be left to the jury, as 
 the report of the auditors was published without comment, and 
 the explanations offered to the auditors did not come before the 
 defendants ; and that causing the letter to be printed was a 
 reasonable and necessary mode of publishing it to the absent 
 shareholders, (n) 
 
 If a man bond Jide writes a letter in his own defence, and for 
 the defence of his rights and interests, and is not actuated by any 
 malice, that letter is privileged, although it may impute dishonesty 
 to another, (o) 
 
 A letter published by an attorney honestly in vindication of the 
 character of a client against charges published and circulated 
 against the client by the prosecutor, is privileged, {j)) 
 
 Sending defamatory matter by a post-office telegram is an un- 
 authorized publication which prevents a communication from Ijcing 
 privileged though made bond jide, and under circumstances which 
 otherwise would have made it privileged, {q) 
 
 Any one, in the transaction of business with another, has a right In the conduct 
 to use language bond jide, which is relevant to that business, and »*_ -^ "'•"'•" ^ 
 which a due regard to his own interest makes necessary, even 
 if it should directly or by its consequences be injurious or 
 painful to another ; and this is the principle upon which privileged 
 communication rests ; but defamatory comments on the motives 
 or conduct of the party with whom he is dealing do not fall within 
 that rule, {r) But the privilege, which protects a communication, Tlic priviii>;::e 
 must result from a right to discuss the particular matter in respect is coiiiineil to 
 of which the alleged libel is published ; nothing else can be privi- ,Hscuss the 
 leged. Where, therefore, remarks were macle reflecting on a iiarticulnr 
 Roman Catiiolic i)i'iest at a public meeting called for the purpo.se "''^tter m ro- 
 
 ' ^ ° r r .spect of w hich 
 
 (>«) (Cockayne v. llodgkiiisoii, 5 V. Adams, infra, 
 k V. 543, Parke, 15. ^p) 1!. ',: Veley, 4 V. k V. HIT. 
 
 (n) Lavvloss v. The Anglo-Egyptian ('/) Williamson v. Frure, 43 L. .1. V. V, 
 
 Cotton and Oil Company, 38 L. J. Q. B. 101. 
 129. (/) Vvv curiam, Tuson r. Evans, 1'2A. 
 
 (o) Coward r. Wellington, 7 C. k P. & E. 733. Sec Whiteley v. Adams, 33 
 
 531. Littledale, J., see Whiteley v. L. J. C. P. 89 ; 15 C. li. N. S. 392.
 
 IPO Of Libel, (ii'c. [book V. 
 
 tiic liiiii is of petit ioniiij,^ J*arli:imoiit a,t,'ain.st the grant to the Roman (Jatholic 
 iiul.li.shc.l. Collf^c jit M.iyiioolli, it was hold that the speaker was not justi- 
 
 licil hy tht! i;ii(Minist;iiice tliat the liljol wasjptiljlished in tht; course 
 of a hothi I'kIc discMssioii res[)ectiM<; the j^ropriety of supporting 
 that (•(.llcgc. (s) 
 Coinimiiiicv Although that whicli is written may be injurious to the 
 
 tioiiH mmlo character of another, yet if done bond fide, or with a view of 
 wi'tVii'vVi-w of investigating a fact, in which the party making it is interested, it 
 iiiveHtiK.iting is not libellous. Thus wliere an advertisement was published by 
 ''""*-' ^- the (lefentlant at the instigation of A., the plaintiff's wife, for the 
 
 ])in'pos(j of ascertaining whether the plaintiff ha<l another wife 
 living when he married A., it was holdeu that although the adver- 
 tisement might impute bigamy to the plaintiff, yet having been 
 published under such autliority, and with such a view, it was not 
 libellous, (t) 
 
 A communication fairly made by a person in the discharge of 
 some public (ft) or private duty, whether legal or moral, or in the 
 conduct of his own affairs, in matters where his interest is con- 
 (>r made in cemed, is a privileged communication, {u) And if the communica- 
 thc i-ropcr tion be made in the regular and proper course of a proceeding, it 
 couisc o a jji ^^^ j^g libellous. As where a writintj, containing the defen- 
 
 dant s case, and stating that some money, due to him from tlie 
 government for furnishing the guard at Whitehall with fire and 
 candle, had been improperly obtained by a Captain C, was directed 
 to a general officer, and the four principal officers of the Guards, to 
 be presented to his Majesty for redress, and information was refused, 
 on the ground that the writing was no libel, but a representation 
 of an injury drawn up in a proper way for redress, without any 
 intention to asperse the prosecutor ; and that though there was a 
 suggestion of fraud, yet that is no more than is contained in every 
 bill in Chancery, which is never held libellous if relative to the 
 subject matter, (r) So a petition addressed by a creditor of an 
 officer in the army to the Secretary-at-War, bond fide, and with 
 the view of obtaining, through his interference, the payment of a 
 debt due, and containing a statement of facts "which, though 
 derogatory to the officer's character, the creditor believed to be 
 true, is not a malicious libel for which an action is maintainable, {vj) 
 A letter written to the Postmaster-General, or to ,the Secretary 
 to the General Post-Office, comj)laining of misconduct in a post- 
 master, or guard of a mail, is not a libel, if it was written as a 
 bond fide complaint to obtain redress for a grievance that the 
 party really believed he had suffered, {x) And where the defen- 
 dant, being deputy-governor of Greenwich Hospital, wrote a large 
 volume, containing an account of the abuses of the hospital, and 
 
 is) Hearne v. Stowell, 12 A. & E. C. B. 569. 
 719. (r) Eex r. Bayley, Andr. 229, Bac. 
 
 (<) Delany », Jones, 4 Esp. 191. Lay Abr. tit. Lihd (A.) 2. As to the privilcjre 
 
 V. Lawsou, 4 A. & E. 795. of proceedings in courts of justice, see 
 
 (/<) Henwood v. Harrison, 41 L. J. anic, ]i. ISO. 
 M. C. 206. (ir) Fairman r. Ives, 5 B. & A. 642. 
 
 («) Toogood r. Spyving, 4 Tyrw. 582. See per ilaiUe, J., in Wenman i'. Ash, 
 
 1 C. M. & K. 181. See Spencer' r. Amer- 13 C. B. 836. 
 
 ton, 1 M. & Rob. 470. Warren r. (.-) AVoodward r. Lander, 6 C. &. P. 
 
 AVarren, 4 Tvrw. 850. 1 C. II. & R. 150. 548. Alderson, B. Blake ». Bilford, 1 
 
 AVright V. Woodgate, 2 C. M. & R. 573. M. 4: Rob. 198, Taunton, J. 
 1 T. & G. 12. Coxhead r. Richards, 2
 
 CHAP. III. § II.] Privileged Communications. 191 
 
 treating the characters of many of the officers of the hospital 
 (who were j:>u6Zzc officers), and Lord Sandwich in particular, who 
 was First Lord of the Admiralty, with much asperity, and printed 
 several copies of it, which he distributed to the governors of the 
 hospital only, and not to any other person ; the rule for an infor- 
 mation was discharged. Lord Mansfield said, that this distribution 
 of the copies to the persons only who were from their situations 
 called onto redress these grievances, and had, from their situations, 
 competent power to do it, was not a publication sufficient to 
 make the writing a libel, {y) Where, however, the defendant 
 wrote a letter to the Secretary of State, imputing to the town 
 clerk and clerk to the justices of a borough, corruption in the 
 latter office, it was held that this was not privileged, because the 
 Secretary' of State had no direct authority in respect of the matter 
 complained of, and was not a competent tribunal to receive the 
 application, (z) But a memorial presented to the Secretary of 
 State for the Home Department by the elector of a borough com- 
 plaining of the conduct of a justice of the peace during a recent 
 election of a Member of Parliaraent for the borough, and im- 
 puting that he had made speeches inciting to a breach of the peace, 
 and praying that the secretary would cause an inquiry to be made 
 into the conduct of the plaintiff, and that, on the allegations being 
 substantiated, the secretary would recommend to the Queen that 
 the justice should be removed from the commission of the 
 peace, is a j)rivileged communication ; for though the Lord 
 Chancellor generally is consulted as to the removal of justices of 
 the peace, the memorial might be considered as addressed to 
 the Queen, through the secretar}', who might have caused 
 the inquiry to be made, have communicated with the Lord 
 Chancellor, and have, in effect, recommended the removal of the 
 justice, (a) And where the publication is an admonition, or in 
 the course of the discipline of a religious sect, as the sentence of 
 expulsion from a society of Quakers, it is not libellous. (6) So a 
 letter written by a son-in-law to his mother-in-law, containing 
 imputations on the character of a person whom she was about to 
 marry, and desiring a diligent and . attentive inquiry into his 
 character, if written bond fide, is a privileged communication, (c) 
 And it has been decided, that an action will not lie for words 
 innocently read as a story out of a book, however false and defa- 
 matory they may be. Thus, where a clergyman in a sermon 
 recited a story out of Foxs Martyrology, that one G., being a 
 perjured person, and a great persecutor, had great plagues inflicted 
 upon him, and was killed by the hand of God ; whereas in truth 
 he never was so plagued, and was himself actually present at the 
 
 iy) Hex V. Haillic, 30 Geo. 3. Holt on peace is appointed liy thcni, and a secre- 
 
 Liljel, 173. 1 Riilgway's Collection of tary of state has no authority as to him, 
 
 Erskine's S]ieeclies, p. 1. Lord Mans- either directly or indirectly, 
 field seemed to think that whether the (a) Harrison v. Bush, .') E. & B. 344 ; 
 
 paper were in manuscript or printed, Dickeson v. Hilliard, 43 L. J. Ex. 37. 
 under these circumstances, made no dif- (b) Ucx v. Hart, 2 Burn's Ecc. li. 770. 
 
 ference. The charge of a bishop to his clergy in 
 
 (;) Blngg r. Sturt, 10 Q. B. SOP. This convocation is a privileged commuuica- 
 
 casc was much considered in Hariison r. iiou. Laughton i'. Tlic Bishop of Sodor 
 
 Bush, /«//r/, and may, perliaps, l)c shaken aud Man, 4"J L. .1. 1'. C 11. 
 hy it. The cases, however, arc distiu- (c) Todd )-. Hawkins, 8 V. & P. 8S, 
 
 guisluible, as the clerk to justices of the Alderson, B.
 
 192 
 
 Of f Abel, c(r. 
 
 HOOK V. 
 
 DiscussiDg 
 matters in 
 whioh ttio 
 public are 
 interestetl. 
 
 iliscourse ; the words buin^ delivered only tvs matter of history, 
 and not with any intention to slander, it was adjudged for the 
 defendant. (</) 
 
 To a declaration in an action for lihel, setting out letters written 
 of and concerning the plaintiff, the defen<lant pleaded, in substance, 
 that when he wrote the letters he was the superior military officer 
 of the plaintiff, and that it was liis dtity, as such superior officer, 
 to forward to the Adjutant-General letters written by the officers 
 tnider his command, and sent to him in relation to their military 
 conduct, &c., and to make reports in writing to the Adjutant- 
 (Jeneral upon such letters for the information of the Commander- 
 in-Chief; that he (defendant) had received such letters from the 
 plaintiff, and had forwarded them in the ordniary course of his 
 military duty as such superior military officer to the Adjutant- 
 General as an act of military duty and not otherwise, and had made 
 certain reports in writing, &c., which letters and reports were the 
 libels complained of. To this plea the plaintiff replied that 'the 
 said words in the declaration mentioned were written and pub- 
 lished by the defendant of actual malice on his (the defendant's) 
 part, and without reasonable, probable, or justifiable cause, and 
 not bondjide or in the bond jide discharge of the defendant's 
 duty as such superior officer, as in the said second plea alleged :' 
 Held, by Mellor, J., and Lush, J., that even though the words 
 complained of were published of actual malice, and without any 
 reasonable, probable, or justifiable cause, as alleged in the replica- 
 tion, yet that, inasnmch as the question raised was one purely of 
 military cognizance, the plaintiff and the defendant being officers 
 in the array, and both bound by the Articles of War, the plaintiff 
 had no remedy at law : Held, by Cockburn, C. J., that the plain- 
 tiff was entitled to judgment, (e) 
 
 The Board of Admiralty having ordered the defendant, the 
 Queen's printer, to print a board minute relating to their pro- 
 ceedings in naval ship-building, which contained a letter of the 
 Comptroller of the Navy in reference to plans of the plaintiff sub- 
 mitted to the board ; the defendant sold copies to the public ; the 
 plaintiff brought his action of libel against the defendant, averring 
 that a statement in such letter that the plans derived no weight 
 from his antecedents, meant that his plans were worthless, and 
 were calculated to injure him in his profession ; no actual malice 
 was imputed : Held, by the majority (Willes, J., Byles, J., and 
 Brett, J.) of the Court (dissentiente, Grove, J.), that the plaintiff 
 was rightly non-suited on the ground that every man has a right 
 to discuss freely, if honestly and without malice, any subject in 
 which the public are generally interested, and that what the de- 
 fendant had done merely amounted to this. (/) 
 
 Comments by a churchwarden upon the conduct of the clergy- 
 men, in taking meals in the vestry, and in causing books to be 
 sold in the church during service, are matters of public interest, 
 and may lawfully be published if they do not exceed the 
 boundaries of fair criticism. {[/) 
 
 {d) 'Rue. Ah. Libel {A.) '2. (f) Hcnwood v. Hanison, 41 L. J. 
 
 (c) Dawkins v. Paulet, 32 L. J. Q. B. C. P. 206. 
 53. Sfc Dawkins v. Lord Rokeby, 42 (g) Kellv r. Tiuling, 35 L. J. Q. B. 
 
 L. J. C^. B. 63. 231.
 
 CHAP. III. § III.] Against Christian Religion. 
 
 The proper meaning of a privileged communication is this : that 
 the occasion on which the communication was made, rebuts tlie 
 inference, prima facie, arising from a statement prejudicial to the 
 character of the plaintiff, and puts it upon him to prove that 
 there was malice in fact; that the defendant was actuated by 
 motives of personal spite or ill will, independent of the occasion 
 on which the communication was made. This may be made out 
 either from the language of the letter itself, or by extrinsic 
 evidence, or by proof of the conduct or expressions of the de- 
 fendant, showing that he was actuated by a motive of personal ill 
 will. (Jl) But Avhere the publication is privid facie privileged, 
 juries ought not to look too strictly at the particular expressions 
 used, but ought clearly to see that the letter was written with a 
 malicious intent before they find it to be a libel, (i) 
 
 It is matter of law for the judge to determine whether the occa- 
 sion of writing or speaking criminatory language repels the in- 
 ference of malice, constituting what is called a privileged 
 communication ; and if at the close of the case for the prosecution 
 there is no intrinsic or extrinsic evidence of malice, it is the duty 
 of the judge to direct a verdict for the defendant ; but wherever 
 there is evidence of malice, either intrinsic or extrinsic, it is the 
 duty of the judge to leave the question of express malice to the 
 jury, (j) But where a communication is prima facie privileged, 
 in order to leave the question of malice to the jury, it is not enough 
 that the facts proved are consistent with the presence of malice as 
 well as with its absence ; for actual malice must be proved, and 
 therefore its absence must be presumed until such proof is 
 given, (k) Where a letter containing defamatory words is written 
 upon a privileged occasion, surrounding circumstances are to be 
 considered by the judge at the trial in determining whether the 
 words used are so much too violent for the occasion as to rebut the 
 presumption of the absence of malice arising from the privilege of 
 the occasion ; and if from surrounding circumstances it appears 
 that the words are capable of two constructions, one of which is 
 compatible with the absence of malice, then the presumption of the 
 absence of malice which existed in the first instance from the 
 privilege of the occasion should be allowed to prevail through- 
 out, (l) 
 
 193 
 
 Proper mean- 
 ing of a privi- 
 leged commu- 
 nication. 
 
 It is for the 
 judge to say 
 whether the 
 privilege 
 exists, and for 
 the jury 
 whether there 
 is actual 
 malice. 
 
 Sec. hi. 
 
 Puhlications against the Christian Religion. 
 
 1. It has been before observed, (r;;) tliat blaspheming God, or Of publioat i. ns 
 turning the doctrines of the Christian religion into contempt and cuHstiau'ic- 
 ridicule, is an indictable otFence. At common law, all blasphemies ligion. 
 
 {h) Wright V. Woodgate, 2 C. M. & R. 
 573. 1 T. & Cir. 12. See Ulake v. Pil- 
 fold, 1 M. & Rob. 198, Taunton, J. Blugg 
 V. Slurt, 10 Q. B. 81)9. 
 
 (i) Woodward v. Lander, 6 C. & P. 
 548, Alderson, B. Todd v. Hawkins, 8 
 O 1^ P RR 
 
 'ij) Cooke V Wildes, .'5 E. & B. 328. 
 Gilpin V. Fowler, 9 Exc. R. 615. 
 vol.. in. 
 
 (/t) Somcrville v. Hawkins, 10 C. B. 
 588. Taylor r. Hawkins, 1(3 Q. B. 308. 
 Harris c. Thonip.son, 13 C. B. 333. Wen- 
 man V. Ash, 13 (-". B. 836 ; Wason v. 
 Walter, 38 L. J. Q. B. 41, per Cockburn, 
 C. J., Hart V. Von Gumpack, 43 L. J, 
 P. C. 25. 
 
 (0 Spill V. Maule, 38 L. J. E.\. 133. 
 
 {m) Ante, p. 177, 
 

 
 1()4 Of Lihel, &c. [book v. 
 
 against God, as denying His Lcing or providence ; and all con- 
 tumelious ri'proaclies of Jesus Christ; all profane scoffing at the 
 Holy Scrij)ture, or exposing any part thereof to contempt or 
 ridicule ; and also seditious words in derogation of the established 
 reli<'ion ; are considered as offences tending to subvert all religion 
 and morality, and punishable by the; tf'm])oral Cf)urts with fine and 
 imprisonment, and also infamous corporal punishment, in the dis- 
 cretion of the court, {rt) 
 Sututos upon Some provisions have also been made upon this subject by 
 this subject. statutes. The 1 Edw. 6, c. 1, (o) enacts, that persons reviling the 
 Sacrament of the Lord's Supper by contemptuous words or other- 
 wise, shall suffer imprisonment. Tiie 1 Eliz. c. 2, {p) enacts, that 
 if any minider shall speak anything in derogation of the Book of 
 Common Prayer, he shall, if not beneficed, be imprisont^d one year 
 for the first offence, and for life for the second ; and if he be bene- 
 ficed, shall for the first offence be imprisoned six months and for- 
 feit a year's value of his benefice ; for the second, shall be deprived 
 and suffer one year's imprisonment ; and for the third, .shall in like 
 manner be deprived and suffer imprisonment for life. And that 
 if any person whatsoever shall in plays, songs, or other open 
 words, speak anything in derogation, depraving, or despising of 
 the said book, or shall forcibly prevent the reading of it, or cause 
 nny other service to be read in its stead, he shall forfeit for the 
 first offence 100 marks ; for the second, 400 ; and for the third, 
 shall forfeit all his goods and chattels, and suffer imprisonment 
 for life. The 1 Will. 3, c. 18, s. 17, enacted, that whosoever .should 
 deny in his preaching or writing the doctrine of the Blessed Trinity, 
 should lose all benefit of the Act for granting toleration. This 
 section is now repealed by 53 Geo. 3, c. 160: but while it was 
 in existence it was considered as operating to deprive the offender 
 of the benefit therein mentioned, leaving the punishment of the 
 offence as for a misdemeanor at common law. (q) The 9 & 10 
 Will. 3, c. 32, enacted, that if any person, educated in or having 
 made profession of the Christian religion, should, by writing, 
 printing, teaching, or advised speaking, deny any one of the 
 Persons in the Holy Trinity to be God, (r) or should assert or 
 maintain there are more gods than one, or should deny the 
 Christian religion to be true, or the Holy Scriptures to be of 
 divine authority, he should upon the first offence be rendered in- 
 capable to hold any oftice or place of trust ; and for the second 
 be rendered incapable of bringing any action, being guardian, 
 executor, legatee, or purchaser of lands, and should suffer three 
 years' imprisonment without bail, (s) A person offending under 
 this statute was held to be also indictable at common law. {t) And 
 
 (ii) See auk, j). 177, and the cases s. 2, ' so far as the same relates to persons 
 
 collected in 1 Hawk. P. C. c. 5. Gather- denying as therein mentioned respecting 
 
 cole's case, 2 Lewin, 287. the Holy Trinity.' 
 
 _ (o) Repealed by 1 Mary, c. 2, and re- (,t) But the tlelinquent publicly re- 
 vived by 1 Eliz. c, 1. nouncing his error in open court, within 
 
 ( p) Tartly repealed by the 7 & 8 Vict. four months after the iiret conviction, is 
 
 c. 102, and 9 & 10 Vict. c. 59, but not so to be discharged for that once from all 
 
 as to affect the ]>rovisions here men- disabilities, 
 tioned. (t) Barnard, 162. 2 Str. 834. Fitzgib. 
 
 (q) Ry Lord Kenyon in Eex r. Wil- 64. Rex v. Williams, 1797. Ees r. 
 
 Hams, 1797. Holt on Libel, 6G. L'atou, 1812. 
 
 {!■) Repealed bv the 53 Geo. 3, c. 160,
 
 To reproach 
 the Christian 
 religion is to 
 speak in sub- 
 version of the 
 law. 
 
 The Christian 
 religion is part 
 of the law of 
 the land. 
 
 CHAP. III. § III.] Against Chi^istian Religion. 195 
 
 where a motion was made in arrest of judgment on an information for 
 a blasphemous libel, on the ground that this statute had put an end 
 to the common law offence : the Court were clear that it had not, con- 
 sidering that the provisions of the statute were cuuiulative. (it). 
 
 Upon the trial of an information against the defendant for 
 uttering expressions grossly blasphemous, Hale, C. J., observed, 
 that such kind of wicked blasphemous words were not only an 
 offence to God and religion, but a crime against the laws, state, 
 and government, and therefore punishable in the Court of King's 
 Bench. That to say religion is a cheat is to dissolve all those 
 obligations whereby civil society is preserved ; that Christianity 
 is part of the laws of England, and therefore to reproach the 
 Christian religion is to speak in subversion of the law. {v) In a 
 case where a libel stated that Jesus Christ was an impostor, a 
 murderer in principle, and a fanatic, a juryman asked whether a 
 work denying the divinity of our Saviour was a libel ; and 
 Abbott, C. J., answered that a work speaking of Jesus Christ in 
 the language here used was a libel ; and on a motion for a new 
 trial, on the ground that this was a wrong answer, the Court with- 
 out difficulty held that the answer was right, {iv) 
 
 Where the defendant had been convicted for publishing several 
 blasphemous libels, in which the miracles of our Saviour were 
 turned into ridicule and contempt, and his life and conversation 
 calumniated, it was moved in arrest of judgment that this was not 
 an offence within the cognizance of the temporal courts at common 
 law ; but the Court would not suffer the point to be argued, saying 
 that the Christian religion, as established in this kingdom, is part 
 of the law ; and, therefore, that whatever derided Christianity 
 derided the law, and consequently must be an offence against 
 the law. {x) It was also moved in arrest of judgment, that 
 as the intent of the book was only to show that the miracles of 
 Jesus Christ were not to be taken in their literal sense, it could 
 not be considered as attacking Christianity in general, but only as 
 sti'iking against one received proof of His being the Messiah ; to 
 which the Court said, that the attacking Christianity in the way 
 in which it was attacked in this publication was destroying the 
 very foundation of it ; and that, though there were professions in 
 the book that its design was to establish Christianity upon a true 
 bottom by considering these narrations in Scripture as emble- 
 matical and prophetical, yet that such professions were not to be 
 credited, and that the rule is allegatio contra factum non est 
 admittenda. But the Court also said, that thougli to write against 
 Christianity in general is clearly an offence at common law, they 
 laid stress upon the word general, and did not intend to include 
 disputes between learned men upon particidar controverted points ; 
 and, in delivering the judgment of the Court, Raymond, C. J., .said, 
 'I would have it taken notice of that we do not meddle with any 
 differences of opinion, and that we interpose only where the very 
 root of Christianity itself is struck at.' (y) 
 
 The doctrine of tlic Christian religion constituting part of the The dread of 
 
 But though to 
 write against 
 Christianity in 
 general is an 
 offence at com- 
 mon law, the 
 Court will not 
 meddle with 
 dilltTciiccs of 
 opinion upon 
 controverted 
 points. 
 
 {it) Eexv. Carlisle, 3 B. & A. IGl. 
 {v) Rex V. Taylor, Vent. 293. 3 Keb. 
 607. 
 
 (w) Kexi'. Waddington, 1 15. &C.26. 
 
 {x) Rex V. AVoolston, Barnard, 102. 
 2 Str. 834. Fitzgib, 64. 
 
 (y) Rex V. Woolslon, Fitzgib. G6. 
 
 2
 
 ]0(3 Of lAbel, iScc. [book V. 
 
 future i.uiiiHli- law of the land was recognized in a later case, where the judgment 
 mcnt is Olio of ^jf (],,, (^^oiirt «»f King's Bench was pronounced upon a person con- 
 tho i>n nil pill YJp((.,i f,f li^ving j)ui)lislio(l a very impious and hiasplionicjus libel, 
 tho law. callcMl J\ii lie's Afje of Jictison. (c) Asldnirst, J., said, that although 
 
 the Aluiiglity did not re(|uire the aid of human tribunals to 
 vindicate His precepts, it was, nevertheless, fit to show our abhor- 
 rence of such wicked doctrines as were not only an offence against 
 God, but against all law and government, from their direct tendency 
 to dissolve all the bonds and obligations of civil society ; and that 
 it was upon this ground that the Clnistian religion constituted part 
 of the law of tho land. That if tho name of our Redeemer was 
 suffered to be traduced, and His holy religion treated with con- 
 tempt, the solemnity of an oath, on which the due administration 
 of justice depended, would be destroyed, and the law be stripped of 
 one of its principal sanctions, the dread of future punishments, (a) 
 Rational and Contumely and contempt are what no establishment can 
 
 dispasMonato tolerate : but, on the other hand, it would not be proper to lay 
 allowabb^ ^^^ ^^^7 restraint upon rational and dispassionate discussions of the 
 rectitude and propriety of the established mode of worship, (b) 
 A sensible writer upon the subject of libel says, as to this point — 
 ' that it may not be going too far to infer, from the principles and 
 decisions, that no author or preacher who fairly and conscientiously 
 promulgates the opinions with whose truth he is impressed, for 
 the benefit of others, is, for so doing, amenable as a criminal ; but 
 a malicious and mischievous intention is in such case the broad 
 boundary between right and wrong ; and that if it can be collected, 
 from the offensive levity with which so serious a subject is treated, 
 or from other circumstances, that the act of the party Avas malicious, 
 then, since the law has no means of distinguishing between dif- 
 ferent degrees of evil tendency, if the matter published contain 
 any such tendency, the publisher becomes amenable to justice.' (c) 
 Where a defendant was charged with publishing a libel upon a 
 religious order, consisting of females, professing the Roman 
 Catholic faith, called the Scorton Nunnery, Alderson, B., observed, 
 a person may, without being liable to prosecutitm for it, attack 
 Judaism or Mahomedanism, or even any sect of the Christian 
 religion, save the established religion of the country ; and the only 
 reason why the latter is in a different situation from the other 
 is, because it is the form established bylaw, and is therefore apart 
 of the constitution of the country. For the same reason any 
 general attack on Christianity is the subject of a criminal prose- 
 cution, because Christianity is the established religion of the 
 country. Any person has a right to entertain his opinions, to ex- 
 press them, to discuss the subject of the Roman Catholic religion, 
 and its institutions; but Jie has no right in so doing to attack the 
 characters of individuals, {d) 
 
 (z) This libel was of the worst kind, disciples, and the Sacred Scriptures, 
 
 attacking the truth of the Old and New (a) Hex r. "Williams, 1797. Holt on 
 
 TnstaTiu'iits ; arpuing that there was no Libel, 60, note (e). 2 Starkie on Libel, 
 
 gciniino revelation of the will of God 141. 
 
 existing in the world ; and that reason (6) 4 Blac. Com. 51. 
 
 was the only true faith which laid any (c) Starkie on Libel, 1st edit. 496, 497. 
 
 obligations on the conduct of mankind. See 2nd edit., vol. 2, 146-7. 
 
 In other respects also it ridiculed and (rf) Gathercole's case, 2Lewin.237. 
 vilified the prophets, our Saviour, His
 
 CHAP. TIL § v.] Against the Constitution, 
 
 As to the extent of this offence and the nature and certainty of 
 the words, it appears to be immaterial whether the publication is 
 oral or written ; though the committing mischievous matter to 
 print or writing, and thereby affording it a wider circulation, 
 would undoubtedly be considered as an aggravation, and affect the 
 measure of punishment, (e) 
 
 197 
 
 Sec. IV. 
 Publications against Morality. 
 
 When the Star Chamber had been abolished, it appears that Of publications 
 the Court of King's Bench came to be considered as the cicstos against 
 morum, having cognizance of all offences against the public "^^'"'^''^y- 
 morals ; (/) under which head may be comprehended representa- 
 tions whether by writing, picture, sign, or substitute, tending to 
 vitiate and corrupt the minds and morals of the people, (g) For- 
 merly, indeed, it appears to have been holden that publications 
 of this kind were not punishable in the temporal courts : (h) but a 
 different doctrine has since been established : (?') And in late times 
 indictments for obscene writings and prints have frequently been 
 preferred, without any objection having been made to the jurisdic- 
 tion of the temporal courts. 
 
 The principle of the cases upon this subject seems to compre- Oral communi- 
 hend oral communications, when made before a large assembly, cations, 
 and when there is a clear tendency to produce immorality, as in the 
 case of the performance of an obscene play, (j) 
 
 Sec. V. 
 Libels against the Constitution. 
 
 Libels against the constitution, abstracted from all personal Of publications 
 allusions, do not appear, either in ancient or modern times, to have against tho 
 been often made the subject of legal inquiry. In general, publi- '^'^^^ ^ ^ '""' 
 cations upon the constitution, avoiding all discussions of personal 
 rights and privileges, are speculative in their nature, and not cal- 
 culated to generate popular heat. But if they should be of a 
 different description, tending to degrade and vilify the constitution, 
 to promote insurrection, and circulate discontent through its mem- 
 bers, they would, without doubt, be considered as seditious and 
 criminal, (a;) 
 
 Thus it appears to have been adjudged, that though no indict- 
 ment lay for saying that the laws of the realm were not the laws of 
 God, because true it is that they are not the laws of God ; yet that 
 
 (e) 2 Stnrkio on Libel, U4, 2ncl edit. 
 
 (/) SirCh.Sedlcv's cfise, 1GG3. Keb. 
 720. 2 Str. 790. Sid. 108. 
 
 (g) Holt on Libel, 73. 
 
 {h) Rexr. Head, 11 Mod. 142. 1 Hawk. 
 P. C. c. 73 3. 9. 
 
 '(i)' Rex t'. Curl, 2 Str. 788. Rexr. 
 Wilks, 4 Burr. 2527. 
 
 (j) 2 Starkie on Libel, 159. In Hex 
 V. Curl, 2 Sir. 700, it was .stated that 
 there liad been many prosecutions ii;:;ainst 
 the jilayers for obscene plays, but that 
 they liad interest enough to get the pro 
 ceedings stayed before judgment. 
 
 (/.) Holt ou Libel, 86.
 
 198 Of Libel, &c. [book v. 
 
 it wouM bo otherwise to say that the laws of the realm are con- 
 trary to the laws of God. (/) And a defendant was convicted on 
 an information charging him with having pnhlished, conceniing 
 the fDverninent of England and the traitors who adjudged King 
 Chark's the First to death, that the government of the kingdom 
 consists of three estates, and that if a rebellion shoidd happen in 
 the kinfdoni, unless that rebellion was against the three estates, it 
 was no rebellion, {in) In another case a person was convicted for 
 l)ublishing a libel, in which it was suggested that the revolution 
 was an unjust and unconstitutional proceeding, and the limitation 
 established by the Act of Settlement was represented as illegal, 
 and that the revolution and settlement of the crown as by law 
 established had been attended with fatal and pernicious conse- 
 quences to the subjects of the kingdom, {n) 
 
 Sec. YI. 
 
 Libels cKjaiiist the King. 
 
 Of publications Thougli a different construction may have prevailed in more ar- 
 against the bitrary times, it is now settled that bare words, not relative to any 
 ^'"^" act or design, however wicked, indecent, or reprehensible they may 
 
 be, are not in themselves overt acts of high treason ; but only a 
 misprision, punishable at common law b}- a fine and imprisonment, 
 or other corporal punishment, (o) Though Avords may expound 
 an overt act, and show with what intent it Avas done, (p) And, 
 generally speaking, any words, acts, or writing tending to vilify or 
 disgrace the King, or to lessen him in the esteem of bis subjects, 
 or any denial of his right to the crown, even in common and un- 
 advised discourse, amount at common law to a misprision punish- 
 able by fine and imprisonment, (q) 
 Statutes. There are also some legislative provisions upon this subject. 
 
 The 3 Edwd. 1, c. 3-i, enacts, that none be so hardy to tell or pub- 
 lish any false news or tales, whereby discord or occasion of discord 
 or slander may gi'ow between the King and his people, and the 
 great men of the realm, (r) And with a view to the security of 
 the succession of the House of Hanover, according to the Act of 
 Settlement, a law was passed declaring it to be treason to write or 
 print against it. (s) 
 
 The nature of the offence of libel against the monarch personally 
 has been ably explained and illustrated, according to the more mild 
 and liberal doctrines of the present time, in the following case : — 
 
 (I) 2 KoU. Abr. 78. (/•") It is said to have been resolved by 
 
 (m) Rex r. Harrison, 1677. 3 Keb. all the judges that all WTiters of false 
 
 841. Vent. 324. And a treatise upon news are indictable and punishable 
 
 hereditary right was holden to be a libel, ^4 Read. St. L. Dig. L. L. 23) ; and pro- 
 
 though it contained no reflection upon bably at this day the fabrication of news 
 
 any part of the then government, Keg. v. likely to produce any public detriment 
 
 Bedford, 1711. 2 Str. 789. Gilb. 297. would be considered as criminal. Starkie 
 
 (n) Rex t'. Nutt, 1754. Dig. L. L. on Libel, 546, 1st edit. 
 
 126, and .see Dr. Shebbeare's case, and (s) 6 Anne, c. 7 ; and see other sta- 
 
 Rex r. Paine, Holt on Libel, 88, 89, and tutes which wore passed for the purpose 
 
 2 Starkie on Libel, 164. of guarding the King's character and 
 
 (o) 1 East, P. C. c. 2, s. 55, p. 117. title, cited in 2 Starkie on Libel, 171, 
 
 ip) Ciohagan's case, Cro. Car. 332. 2nd edit. 
 
 Iq) 4 BW. r..ni. V^;-.,
 
 CHAP. III. § VI.] Against the King. 199 
 
 The defendant was charged with having published a libel to the Rex v. Lam- 
 following effect : ' What a crowd of blessings rush upon one's mind, ^^y\ ^'^f ^°* 
 that might be bestowed upon the country in the event of a total ^^^21- who 
 change of system ! Of all monarchs, indeed, since the Revolution, allows the 
 the successor of George the Third will have the finest oppor- sovereign to be 
 tunity of becoming nobly popular.' Lord Ellenborough, C. J., ^j^g welfare of 
 in addressing the jury, stated, that the first sentence of this his subjects, 
 
 passage would easily admit of an innocent interpretation ; that the ^^'^ "*^'^° ]^^^ . 
 r ■ • r- . 1 • i 1 /" 1 ) 1 no intention of 
 
 lair meaning 01 tlie expression change 01 system was a change calumniating 
 
 of political system — not a change in the frame of the established him, or of 
 government — but in the measures of policy which had been for ^"nging his 
 some time pursued ; and that by total change of system was cer- vernment^^ito 
 tainly not meant subversion or demolition, the descent of the public odium, 
 crown to the successor of his Majesty being mentioned immediately *" express re- 
 after. His lordship then proceeded : — ' If a person who admits |^g ^^^'^g^ ^^^ 
 the wisdom and virtues of his Majesty, laments that in the exercise erroneous ^-iew 
 of these he has taken an unfortunate and erroneous view of the °.^ ^"^ 1"^'^: 
 interests of his dominions, I am not prepared to say that this tends ordomest^ic'^^ 
 to degrade his Majesty, or to alienate the affections of his subjects, policy. 
 I am not prepared to say that this is libellous. But it must be 
 with perfect decency and respect, and without any imputation of 
 bad motives. Go one step further, and say or insinuate that his 
 Majesty acts from any partial or corrupt view or with an intention 
 to favour or oppress any individual or class of men, and it would 
 become most libellous.' Upon the second sentence, after stating 
 that it was more equivocal, and telling the jury that they must 
 determine what was the fair import of the words employed, not in 
 the more lenient or severe sense, but in the sense fairly belonging 
 to them, and which they were intended to convey. Lord Ellen- 
 borough proceeded : ' Now do these words mean, that his Majesty 
 is actuated by improper motives, or that his successor may render 
 himself nobly popular by taking a more lively interest in the wel- 
 fare of his subjects ? Such sentiments, as it would be most mis- 
 chievous, so it Avould be most criminal to propagate. But if the 
 passage only means that his Majesty, during his reign, or an}"- length 
 of time, may have taken an imperfect view of the interests of the 
 country, either respecting our foreign relations, or the system of 
 our internal policy ; if it imputes nothing but honest error, without 
 moral blame, I am not prepared to say that it is a libel.' And 
 again, towards the conclusion of his address, his lordship said, ' The 
 question of intention is for your consideration. You will not dis- 
 tort the words, but give them their application and meaning as 
 they impress your minds. What appears to me most material is 
 the substantive paragraph itself; (t) and if you consider it as meant 
 to represent that the reign of his Majesty is the only thing inter- 
 posed between the subjects of this country and the possession of 
 great blessings which are likely to be enjoyed in the reign of his 
 successor, and thus to render his Majesty's administration of his 
 government odious, it is a calumnious paragraph, and to be dealt 
 with as a libel. If on the contrary you do not see that it means 
 
 (0 The libel was published in a news- with the subject of the passage charged 
 
 paper ; and it had been allowed to the as libellous, although disjoined from it 
 
 defendant to have read in evidence an by extnineous mutter, and printed in a 
 
 extract from the same paper connected diflerent character.
 
 200 
 
 Oj Libel, &c. 
 
 [book v. 
 
 distinctly, nccDnliii;,' to \<>nv reasoning, to impute any purposed 
 maladministration to liis Majesty, or those acting under liim, l)ut 
 may bo fairly construed as an expression of regret, that an erroneous 
 view has been taken of public affairs, I am not prepared to say 
 that it is a libel. There have been errors in the administration of 
 thi' most enlightened men.' (u) 
 
 Fidsciv i)ul»lisliing that the King is labouring under mental de- 
 rangement is a libel : it tends to unsettle and agitate the public 
 mind, and to lower the respect due to the King, {v) 
 
 Of publications 
 a-^inst the 
 two Houses of 
 Parliament. 
 
 Sec. VIT. 
 
 Libels against Houses of Parliament. 
 
 The two Houses of Parliament are an es.sential part of the con- 
 stitution, and entitled to reverence and respect, on account of the 
 important public duties which tliey have to discharge. But as 
 they have the power of treating libels against them as breaches of 
 their privileges, and vindicating them in the nature of contempts, 
 more cases of such libels are to be met with in their journals than 
 in the proceedings of the courts of law. The common law, how- 
 ever, is fully capable of taking cognizance of any publications 
 reflecting in a libellous manner upon the members or proceedings 
 of the Houses of Parliament ; (lo) and it seems rather to have been 
 the inclination of Parliament in modern times to direct prosecu- 
 tions for such offences in the courts of common law, and to waive 
 the exercise of their own extensive privileges. In the case of the 
 King V. Sioclxlale, (.r) the attorney-general in his speech to the 
 jury, after stating the address of the House of Commons to the 
 King, praying that his Majesty would direct the information to be 
 filed, proceeded thus, ' I state it as a measure which they have 
 taken, thinking it in their wisdom, as every one must think it, to 
 be the fittest to bring before a jury of their country an offender 
 against themselves, avoiding thereby, what sometimes indeed is un- 
 avoidable, but which they wish to avoid whenever it can be done 
 wdth propriety, the acting both as judges and accusers, which they 
 must necessarily have done, had they resorted to their own powers, 
 which are great and extensive, for the purposes of vindicating them- 
 selves against insult and contempt, but which in the present instance 
 they have wisely forborne to exercise, thinking it better to leave 
 the offender to be dealt with by a fair and impartial jury.' (y) 
 
 ill) Rex V. Lambert, 2 Camb. 398. 
 
 (!•) Rex V. Harvey, 2 B. k C. 257, and 
 malice will be inii)licd from such wilful 
 defanuDg without excuse. See the case, 
 post, p. 222. 
 
 (u") As in Rex r. Rayner, 2 Barnard, 
 293, where the defendant was convicted of 
 X^rinting a scandalous libel on the Lords 
 and Commons ; and in Rex v. Owen, 
 25 Geo. 2. MS. Dig. L. L. 67. In Kex v. 
 Stockdale, 28 Geo. 3, an information was 
 filed by the attorney-general for a libel 
 upon the House of Commons. A prose- 
 cution was also instituted inRexr. Reeves, 
 36 Geo, 3, in conscciuencc of a resolution 
 
 of the House of Commons, declaring a 
 pamphlet, published by tlie defendant, to 
 bo a libel. In the pamphlet, which was 
 called ' Thoughts on the English Govern- 
 ment,' there was this passage amongst 
 others which the House deemed libellous 
 — 'That the King's government might go 
 on if the Lords and Commons were lopped 
 off.' The jury considered the expressions 
 as merely metaphorical, and acquitted the 
 defendant. 
 
 (.r) A 7ik, note (tc). 
 
 (i/) See 2 Ridgwav's speeches of the 
 Hon. T. Erskine, p. 203.
 
 CHAP. III. § VIII.] Upon the Government. 201 
 
 Sec. VIII. 
 Libels uj;o?i the Government. 
 
 The extent to which the measures of the King, or the proceed- Of publications 
 ings of his government, may be fairly and legally canvassed, has ^8'^'°^* ^^^ 
 been the subject of much discussion, as it is undoubtedly one of the 
 first importance : but it is not within the scope and design of this 
 Treatise to enter further upon the question, than by stating a few 
 of the established principles and decided oases. 
 
 It may be observed, that the liberty of discussion, which in many 
 instances has been admitted on the part of the officers of the 
 crown, would seem to be sufficient to answer all the purposes of 
 the honest patriot ; the man who would condemn only with a view 
 to genuine and constitutional reformation. Upon a late prosecu- 
 tion for a libel, the attorney-general in his opening to the jury 
 thus expressed himself : ' The right of every man to represent what 
 he may conceive to be an abuse or grievance in the government of 
 the country, if his intention in so doing be honest, and the state- 
 ment made upon fair and open grounds, can never for a moment 
 be questioned. I shall never think it my duty to prosecute any 
 person for writing, printing, and publishing, foir and candid 
 opinions on the system of the government and constitution of 
 this country, nor for pointing out what he may honestly conceive 
 to be grievances, nor for proposing legal means of redress.' (z) 
 Every man has a right to give every public matter a candid, full, 
 and free discussion ; but although the people have a right to discuss 
 any grievances they have to complain of, they must not do it in 
 a way to excite tumult ; and if a party publish a paper on any 
 such matter, and it contain no more than a calm and quiet dis- 
 cussion, allowing something for a little feeling in men's minds, 
 that will be no libel ; but if the paper go beyond that limit, and 
 be calculated to excite tumult, it is a libel, (a) 
 
 In many cases which may occur, the due exercise of this liberty 
 and right of discussion will involve considerations of much diffi- 
 culty, and require great nicety of discrimination ; as it may be- 
 come necessary to ascertain the particular points at which the 
 bounds of rational discussion have been exceeded. The answer to 
 the following question has, however, been proposed as a test, by 
 which the intrinsic illegality of such publications may be decided : (6) 
 ' Has the communication a plain tendency to produce public mis- 
 chief by perverting the mind of the subject, and creating a general 
 dissatisfaction towards government?' 
 
 However innocent and allowable it may be to canvass political 
 measures within these limits, it is quite clear that their discussion 
 must not be made a cloak for an attack upon private character. 
 Libels on persons employed in a public capacity receive an aggra- 
 vation as they tend to scandalize the government by reflecting on 
 
 (z) Eex V. Perry, 1793. See 2 RiJg- (a) V.e?,. v. Collins, 9 C. k P. 456. 
 
 way's speeches, 371. Littlcclale, J. 
 
 {h) Starkie on Libel, 525, 1st edit.
 
 202 Of [jUh'I, &c. [book v. 
 
 those who are ciitnisted with the administration of piil^lic afTairs ; 
 (nr they n<>t only (Mnlant^^or the public jx-aco, .-is all otli(;r lilx^-ls do, 
 l»y stinin;^' nj) tli(! parties immediately concerned to acts of revenge, 
 l)Ut also have a din-ct tendency to breed in the peojjle a dislike of 
 their governors, and incline thein to faction and sedition, (c) If 
 a |)aper has a direct tendency to cause unlawful meetings and 
 disturbances, and to lead to a violation of the laws, it is a seditious 
 libel, {(l) 
 CoBCH. A person delivered a ticket up to tlie minister after sermon, 
 
 wherein lie desired him to take notice that offences pas.sed now 
 without control from the civil magistrate, and to quicken the 
 (•i\ il magistrate to do liis duty, &c. ; and this was held to be a 
 libel, though no magistrate in particular was mentioned, and 
 though it was not averred that the magistrates suffered those vices 
 knowingly, (e) 
 Reg. V. Tucliin. I" ^ casc where the defendant was prosecuted upon an infor- 
 mation for a libel upon the government, his counsel contended that 
 the publication was innocent, and could not be considered as libel- 
 lous, because it did not reflect upon particular persons. But 
 Holt, C J., said, ' They say nothing is a libel but what reflects on 
 some particular person. But this is a very strange doctrine to say 
 that it is not a libel reflecting on the government, endeavoviring to 
 possess the people that the government is maladministered by 
 corrupt persons that are employed in such stations, either in the 
 navy or army. To say that corrupt officers are appointed to 
 administer affairs is certainly a reflection on the government. If 
 men should not be called to account for possessing the people with 
 an ill opinion of the government, no government can subsist ; 
 nothing can be worse to any government than to endeavour to 
 procure animosities as to the management of it ; this has always 
 been looked upon as a crime, and no government can be safe unless 
 it be punishecl.' (/) 
 Rex 1'. Cobbett. This doctrine was recognized in a case, "where the defendant 
 was charged with publishing a libel upon the administration of the 
 Irish government, and upon the public conduct and character of 
 the Lord Lieutenant and Lord Chancellor of Ireland. Lord 
 Ellenborough, C. J., in his address to the jury, observed, 'It is 
 no new doctrine that if a publication be calculated to alienate the 
 affections of the people, by bringing the government into dis- 
 esteem, whether the expedient be by ridicule or obloquy, the person 
 so conducting himself is exposed to the inflictions of the law. It 
 is a crime ; it has ever been considered as a crime, whether wrapt 
 in one form or another. The case of Reg. v. Tucliin, decided in 
 the time of Lord Chief Justice Holt, has removed all ambiguity 
 from this question ; and, although at the period when that case 
 w'as decided great political contentions existed, the matter was not 
 again brought before the judges of the Court by any application 
 for a new trial' And afterwards his lordship said, ' It has been 
 observed, that it is the right of the British subject to exhibit the 
 folly or imbecility of the members of the government. But, gentle- 
 
 ((•) 1 Il.iwk. P. C. c. 73, s. r. P.ac. Littledale, J. 
 
 Abr. tit. Libel (A.) 2. Rex r. Frankliu, (r) Bac. Abr. tit. Lihcl (A.) 2. 
 
 9 St. Tri. 255. (/) Reg. r. Tuchin, 1704. Holt's E. 
 
 ('0 Reg. r. Lovett, 9 C. & F. 462. 424. 5 St. Tri. 532.
 
 CHAP. III. § IX.] On Magistrates, &c. 
 
 men, we must confine ourselves -within limits. If in so doing 
 individual feelings are violated, there the line of interdiction begins, 
 and the offence becomes the subject of penal visitation.' {g) 
 
 203 
 
 Sec. IX. 
 Libels on Magistrates and Administration of Justice. 
 
 As nothing tends more to the disturbance of the public weal Of publications 
 than aspersions upon the administration of justice ; contempts against magis- 
 against the King's judges, and scandalous reflections upon their aTmin it t ration 
 proceedings, have always been considered as highly criminal of justice, 
 offences ; and one of the earliest cases of libel appears to have 
 been an indictment for an offence of this kind. (Ji) 
 
 Generally, any contemptuous or contumacious words spoken to 
 the judges of any courts in the execution of their offices are 
 indictable ; and when reflecting words are spoken of the judges of 
 the superior courts at Westminster, the speaker is indictable both 
 at common law and under the statutes of scandalum magnatiim, 
 whether the words relate to their office or not. (i) 
 
 Any publications reflecting upon and calumniating the admi- Cases, 
 nistration of justice are of a libellous nature, {j) So an order Kex r. Watson, 
 made by a corporation, and entered in their books, stating that A. 
 (against whom a jury had found a verdict with large damages in 
 an action for a malicious prosecution, and which verdict had been 
 confirmed in the Court of Common Pleas,) was actuated by motives 
 of public justice in preferring the indictment, was held to be a 
 libel reflecting on the administration of justice, for which an 
 information should be granted against the members who had made 
 the order. Ashhurst, J., said, that the assertion that A. was 
 actuated by motives of public justice carried with it an imputation 
 on the public justice of the country ; for if those were his only 
 motives, then the verdict must be wrong. Buller, J., said, 
 * Nothing can be of greater importance to the Avelfare of the public 
 than to put a stop to the animadversions and censures which are 
 so frequently made on courts of justice in this country. They can 
 be of no service, and may be attended with the most mischievous 
 consequences. Cases may happen in which tlie judge and jury 
 may be mistaken : when they are, the law has afforded a remedy ; 
 and the party injured is entitled to pursue every method which the 
 law allows to correct the mistake. But when a person has recourse 
 either by a writing like tlie present, by publications in print, or by 
 any other means, to calumniate the j^i'oceedings of a court of 
 
 iq) Eex V. Cobbett, 1804. Holt on 
 Libel, 114, 115. 2 Starkie on Libel, 193, 
 ■where see in the note other cases re- 
 ferred to. 
 
 {h) Holt on Libel, 153. 
 
 (i) 2 Starkie on Libel, 195, where sec 
 the cases collected. And see 1 Hawk. 
 P. C. c. 7, et seq. The proceeding by- 
 writ of scandalum magnatum upon the 
 statutes 3 Edw. 1, c. 34. 2 R. 2, st. 1, 
 c. 5. 12 R. 2, c. 11, is of a civil, as well 
 
 as of a criminal nature ; and was formerly 
 had recourse to in ca.se of defamation of 
 any of the fjreat officers and noldes. But 
 the civil proceeding is now almost obso- 
 lete, the nubility preferring to waive 
 their privileges in any action of slander, 
 and to .stand upon tlie same footing, with 
 respect to civil remedies, as their fellow 
 subjects. 
 
 (;) Vin. Abr. tit. Conkvxiit (A.) 41. 
 Pool V. Sachevord, 1720.
 
 204 Of Libel, d:c. [book v. 
 
 jiisticc, the ol)viou.s tciidciicy of it is to weaken the administraticjii 
 of justice, and in conse([ucncc to sap tlie very foundation of the 
 constitution itself (/.;) 
 liux V. White. In another case the same (hjctrinc was acted upon : hut it was at 
 tlie same time clearly admitted that it would be lawful to discuss 
 the merits of tiie verdict of a jury, or the decisions of a judge, 
 j)n)vidod it be done with candour and decency. An information 
 was filed against the proprietors and printers of a Sunday news- 
 paper, for a lil)el upon Le Blanc, J., and a jury, by whom a 
 ]>risoner had been tried for murder and acquitted ; and it wa.s 
 contended on the part of the defendants that they had only made 
 a fair use of their right to canvass the proceedings of a court of 
 justice. Grose, J., said, that 'it certainly was lawful, with decency 
 and candour, to discuss the propriety of the verdict of a jury, or 
 the decisions of a judge ; and if the defendants should be thought 
 to have done no more in this instance, they would be entitled to 
 an actpiittal : but, on the contrary, tliey had transgressed the law, 
 and ought to be convicted, if the extracts from the newspaper, 
 set out in the information, contained no reasoning or discussion, 
 but only declamation and invective, and were written not with a 
 view to elucidate the truth, but to injure the characters of indi- 
 viduals, and to bring into hatred and contempt the administration 
 of justice in the country.' (/) 
 Of words It seems that no indictment will lie for contemptuous words 
 
 spoken of, or spoken either of or to inferior magistrates, unless they are at the 
 !.'!!.i;l!Tfl'l ti'^G in the actual execution of their duty, or at least unless the 
 ' '"" "' "^ -words affect them directly in their office ; though it may be good 
 cause for binding the offender to his good behaviour, (m) This 
 doctrine was recognized in a case, where the defendant was indicted 
 for saying of a justice of the peace for the county of Middlesex, 
 in his absence, that he was a scoundrel and a liar, (n) Lord 
 EUenborough, C. J., said, ' the words not being spoken to the 
 justice, I think they are not indictable. This doctrine is laid 
 down by Lord Holt in a case in Salkeld ; (o) and in Eex v. 
 Fucock {p) the Court of Queen's Bench refused to grant an infor- 
 mation for saying of a justice, in his absence, that he was a 
 forsworn roc/ue. However, I will not direct an acquittal upon 
 this point, as it is upon the record, and may be taken advantage of 
 in arrest of judgment. It Avill be for the jury now to say whether 
 these words were spoken of the prosecutor as a justice of the 
 peace, and with intent to defame him in that capacity ; for if they 
 were not, this indictment is not supported ; and it could not by 
 possibility be a misdemeanor to utter them, although the prose- 
 cutor's name may be in the commission of the peace for the county 
 of Middlesex.' (q) But it has been holden to be an indictable 
 offence to say of a justice of the peace, when in the execution of 
 his office, 'you are a rogue and a liar.' {r) The Court will not, 
 however, grant an information for calling a magistrate a liar, 
 
 {k) Eex V. "Watson, 2 T. E. 199. P. C. o. 21, s. 13. 
 
 (0 Rex V. White, 1 Campb. 359. And (n) Hex v. Weltje, 2 Canipb. 142. 
 
 see a note of another proeeeding by infor- {o) Rex v. "Wrightson, 2 Salk. 698, 
 
 niation against the same defendants for a (/>) 2 Str. 1157. And see Rex v. 
 
 libel on Lord EUenborongh, C. J. Holt Penny, 1 Lord Rayra. 153. 
 
 on Libel, 170, 171. {q) Rex r. Weltja, 2 Campb. 142. 
 
 {m) 2 Starkio on Libel, 195. 1 Hawk. {r) Rex v. Revel, 1 Str. 420. 
 
 magistrates.
 
 CHAP. III. § X.] On Private Individuals. 
 
 accusing him of misconduct in having absented himself from an 
 election of clerk to the magistrates, and threatening a repetition 
 of the same language whenever such magistrate came into the 
 town, unless they tend to a breach of the peace, (s) 
 
 205 
 
 Sec. X. 
 Libels on Private Individuals. 
 
 A general definition of a libel on an individual has already 
 been given, ante, p. 178. 
 
 As every person desires to appear agreeable in life, and must be Of publications 
 highly provoked by such ridiculous representations of him as tend fg^!°?^ private 
 to lessen him in the esteem of the world, and take away his repu- 
 tation, which to some men is more dear than life itself ; it has 
 been held that not only charges of a flagrant nature, and which 
 reflect a moral (t) turpitude on the party, are libellous, but also 
 such as set him in a scurrilous, ignominious, or ludicrous (u) light, 
 whether expressed in printing or writing, or by signs or pictures ; 
 for these equally create ill blood, and provoke the parties to acts 
 of revenge and breaches of the peace, (v) 
 
 But it should be observed, that there is an important distinction Words spokea 
 under this head between words spohen only, and words published ^^® °°* indict- 
 by writing or printing. Words spoken, however scurrilous, even ^ ^' 
 though spoken personally to an individual, are not the subject of 
 indictment, unless they directly tend to a breach of the peace, 
 as if they convey a challenge to fight, {iv) But words, though 
 not scandalous in themselves, if published in writing, and tending 
 in any degree to the discredit of a man, have been held to be 
 libellous, {pc) 
 
 Upon these principles it has been held to be libellous to write Cases. 
 of a man that he had the itch, and stunk of brimstone, {y) And 
 an information was granted against the mayor of a town for 
 sending to a nobleman a license to keep a public house, (s) An 
 information was also granted for a publication reflecting upon a 
 person who had been unsuccessful in a lawsuit ; (a) and against 
 
 (s) Ex parte Chajimaii, 4 A. & E. 773. 
 
 {t) A charge of ingratitude is action- 
 able as libel, Cox v. Lee. 38 L. J. , Ex. 
 219. 
 
 (ii) Cooke V. Ward, 6 Ding. 409. 4 M. 
 & P. 99. 
 
 {v) Ante, p. 178. Bac. Abr. tit. Libel 
 (A. ) 2. So in the case of Thorley v. Lord 
 Kerry, 4 Taunt. 364, Mansfield, C. J., 
 delivering the opininii of the Court, said, 
 ' there is no <loubt that this is a libel for 
 which tlie ]ilaintiir in error might have 
 been indicted and punished, because, 
 though the words impute no punishable 
 crimes, they contiiin that sort of imputa- 
 tion whicli is calculated to vilify a man, 
 and bring him, as the books say, into 
 hatred, contempt, and ridicule ; for all 
 words of that description an indictment 
 lies.' And ia Rex ?•. Cobbctt, Holt on 
 
 Libel, 114, ll.'^. Lord Ellenborough, C. J., 
 said, ' No man has a right to render tho 
 person or abilities of another ridiculous, 
 not only in publications, but if tho peace 
 and welfare of individuals, or of society, 
 be interrupted, or even expused by types 
 and figures, the act, by the law of Eng- 
 land, is a libel. ' 
 
 (w) Keg. V. Langley, 6 Mod. 125. Kex 
 V. Bear, 2 .Salk. 417. By Holt, C. J. 
 Villars v. Monsley, 2 Wils." 403, and see 
 2 Starkic on Libel, 208. Thorley v. Lord 
 Kerry, 4 Taunt. .■55.'>. 
 
 {x) Bac. Abr. tit. Libel {X.) 1. Frnv r 
 Fray, 34 L. J. C. P. 45. 
 
 ((/) Villars v. Monsley, 2 "Wills. 403. 
 
 (:::) The .Mayor of Northampton's case, 
 1 Str. 422. 
 
 («) 2 Barnard. 84.
 
 206 
 
 Of Libel, &c. 
 
 [book v. 
 
 tlio printor of a newspaper for puljlisliinff a hitlicroiis paraf,M-aph, 
 ^'iviiij,' ail aocoiiiit of IIk! inarriago of a iioblcinan witli an aftrc-ss, 
 :iii(l of liis a|tpearin^' with lier in the boxta witii jewels, dtc. (6) 
 A tlrfciidaiit, was convicted for publisliinj; a libel in a review, 
 tciuling to traduce, vilify, and ridicule an officer of high rank in 
 the navy ; and to insinuate that he wanted courage and voracity ; 
 anil to cause it to be believed that he was of a conceited, oljstinate, 
 and incendiary disposition, (c) And an information was granted 
 against a printer of a newspaper, for pnblisiiing a paragraph con- 
 taining a lil)el on the Bishop of Derry, by representing him as a 
 bankrupt. {(I) But in an action for publisliing a libel by posting 
 it on a paper in the Casino-room at Southwold, containing these 
 words, ' The Rev. John Robinson and Mr. James Robinson, 
 inhabitants of this town, not being persons that the proprietors 
 and annual subscribers think it proper to associate with, are 
 excluded this room;' the Court of Exchequer held, that the 
 publication was not a libel, as it did not affect the moral character 
 of the plaintiffs, nor state that they were not proper persons for 
 general society; that the paper might import no more than that 
 the plaintiff was not a social and agreeable character in the inter- 
 course of common life, (e) But where a count alleged that the 
 defendant published of the Duke of Brunswick the following 
 libel : ' Why should Theophilus be surprised at anything Mrs. 
 W. does? If she chooses to entertain the Duke of Brunswick, 
 she does what very few will do ; and she is of course at liberty 
 to follow the bent of her own inclining, by inviting all the 
 expatriated foreigners who crowd our streets to her table, if she 
 thinks fit ; ' the Court of Exchequer Chamber held that the mat- 
 ter stated was libellous, as it might be understood in such a sense 
 as to be injurious to the prosecutor's character.' (/) 
 rubiication A publication reflecting upon a man in respect of his trade may 
 
 reflecting upon ^^j^^ ^^ libellous ; as where A., a gitnsmith, published in an adver- 
 spect of his tiscment that he had invented a short kind of gun, that shot as 
 tnidc. far as others of a longer size, and that he was gunsmith to the 
 
 Prince of Wales ; and B., another gunsmith, counter-advertised, 
 * That Avhereas, &c. (reciting the former advertisement), he desired 
 all gentlemen to be cautious, for that the said A. durst not engage 
 with any artist in town, nor ever did make such an experiment, 
 except out of a leather gun, as any gentleman might be satisfied 
 at the Cross Guns in Long Acre, the said B.'s house.' The Court 
 held, that though B., or any other of the trade, might counter- 
 advertise what was published by A., yet it should have been done 
 without any general reflections on him in the way of his business : 
 that the advice to ' all gentlemen to be cautious,' was a reflection 
 upon his honesty ; and the allegation that he w^ould not engage 
 with an artist was setting him below the rest of his trade, and 
 calling him a bungler in general terms ; and that the expression 
 'except out of a leather gun ' was charging him with a lie, the 
 
 (h) Rex f. Kiunersley, 1 Blac. E. 294. 
 It was sworn that the iiohleman was a 
 married man ; and the Court said, that 
 under such circumstances the publication 
 would have Viccn a high ott'eiice even 
 against a commoner, and that it was 
 high time to stop such iutermcddling in 
 
 private families. 
 
 (c) Rex V. Dr. Smollet, 1759. Holt on 
 Libel, 224. 
 
 {•') Anonj-mous, Hill, T. 1S12. 
 
 (f) Robinson r. Jermvn, 1 Price, R. 11. 
 
 (/) Gregory v. The" Queen, 15 Q. B. 
 957.
 
 CHAP. III. § X.] On Private Individuals. 207 
 
 word gun being vulgarly used for a lie, and gunner for a liar, and 
 that therefore these words were libellous, (g) 
 
 Declaration, ' that the plaintiffs carried on the business of 
 manufacturers of bags, and in such business invented, manufac- 
 tured, and sold great numbers of a bag called " The Bag of Bags," 
 and the defendant maliciously printed and published of and con- 
 cerning the plaintiffs in their business, in a periodical called the 
 Tomahawk, the words following : — " Novelty and enough. Let us 
 [meaning the defendant] premise our remarks that they are not a 
 planned advertisement, and then let us declare that Messrs. J. & 
 K. [meaning the plaintiffs] have introduced and largely advertised 
 an article of their manufacture as the Bag of Bags. As we have 
 not seen the Bag of Bags, we cannot say that it is useful, or that it 
 is portable, or that it is elegant. All this it may be, but the only 
 jDoint we can deal with is the title, which we think very silly, very 
 slangy, and very vulgar, and which has been forced upon the notice 
 of the public ad nauseam." ' Held, on demurrer, by the majority 
 of the Court (Mellor, J., and Hannen, J.), that the declaration was 
 good, on the ground that it was a question for the jury Avhether 
 the article did not exceed the limits of fair criticism, and tend to 
 disparage the plaintiffs to the public in respect to their mode of 
 carrying on their business ; but by Lush, J., that the declaration 
 was bad, and that there was no evidence of a libel for the jury, as 
 there was nothing in the article which conveyed an imputation on 
 the character of the plaintiffs, or on the manner in Avhich they 
 conducted their business, (h) 
 
 General imputations upon a body of men are indictable, though General impu- 
 no individuals may be pointed out. (i) An information Avas |^*|o"Y'pon a 
 prayed against the defendant for publishing a paper containing an are indictable, 
 account of a murder committed upon a Jewish woman and her 
 child, by certain Jeivs lately arrived from Portugal, and living near 
 Broad Street, because the child was begotten by a Christian, (j) 
 It was objected that no information should be granted in this case, 
 because it did not appear who in particular the persons reflected 
 on were, (h) But the Court said, that admitting that an informa- 
 tion for a libel might be improper, yet the publication of this paper 
 Avas deservedly punishable in an information for a misdemeanor, 
 and that of the highest kind ; such sort of advertisements neces- 
 sarily tending to raise tumults and disorders amongst the people, 
 and inflame them Avith an universal spirit of barbarity against a 
 whole body of men, as if guilty of crimes scarcely practicable, 
 and wholly incredible. (I) And if some of the individuals atiected 
 by the libel are specified, it Avill be sufficient ; as where it was 
 objected that the names of certain trustees, who were part of the 
 body prosecuting, were not mentioned. Lord Hardwicke observed, 
 that though there were authorities where, in cases of libel upon 
 
 (g) Hannan v. Delaiiy, Barnard, K. B. ccntlv arrived from rortugal, and livi^d in 
 
 289. Fitzp;ih. 121. 2 Str. 893, S. C. Broad Street, weroattacked l>y7nnltitudos 
 
 Sec The Western Counties JIanure Com- in several parts of the city, barliarously 
 
 pany v. Lawcs Chemieal Jlanurc Com- treated, and threatened with deatli, in 
 
 pany, 43 L. J. Ex. 171. ease tliey were found abroad any more. 
 
 (h) Jeuner and another v. A'Beckett, (^•) Kex v. Orme, 3 Salk. 224. 1 Lord 
 
 41 L. J. Q. B. 14. Rayni. 486, was cited. 
 
 (i) Ante, p. 179. (/) Kex r. Osborne, Sess. Cas. 260. 2 
 
 \j) The atTidavit set forth that several Barnard, 13S, 166. Kol. 230, pi. 18;^. 
 persons therein mentioned, who were re-
 
 208 
 
 Lil'ol tipon a 
 person ilo- 
 ceased. 
 
 Of Libel, ch'. 
 
 [book v. 
 
 persons in tlicir private capacities, it liad been lioldt-n necessary 
 that sonic particular person should be named, this was never 
 carried so far as to make it necessary that every person injured 
 by such lilK'l should be si)ecified. (m) 
 
 Where a jjiiblication stated that, upon the death of her late 
 Majesty, none of the bells of the several churches of Durhani 
 wore tolled ; and ascribed this omission to the clergy, and then 
 proceeded to make some very severe observations on that body, a 
 criminal information was granted, (n) 
 
 \ malicious defamation of one who is dead, if published with 
 a malevolent purpose, to vilify the memory of the deceased, and 
 with a view to injure his posterity, will be libellous ; but it has 
 been holden that an indictment for a libel, reflecting on the 
 memory of a deceased person, cannot be supported, unless it state 
 that it was done with a design to bring contempt on his family, 
 or to stir up the hatred of the King's subjects against his relations, 
 and to induce them to break the peace in vindicating the honour 
 of the family, (o) 
 
 Of publications 
 against 
 foreigners of 
 distinction. 
 
 Sec. XI. 
 
 Libels on Foreigners of Dist'mction. 
 
 Upon the ground that malicious and scurrilous reflections upon 
 those who are possessed of rank and influence in foreign states 
 may tend to involve this country in disputes and warfare, it has 
 been held that publications tending to degrade and defame per- 
 sons in considerable situations of power and dignity in foreign 
 countries may be treated as libels. Thus an information was filed, 
 by the command of the Crown, for a libel on a French ambassador, 
 then residing at the British court, consisting principally of some 
 ann-ry reflections on his public conduct, and charging him with 
 i'morance in his ofiticial capacity, and with having used stratagem 
 to supplant and depreciate the defendant at the court of Ver- 
 sailles, {p) And Lord George Gordon was found guilty upon an 
 information for having published some severe reflections upon the 
 Queen of France, in which she was represented as the leader of a 
 faction : upon which occasion Ashhurst, J., observed, in passing 
 sentence, that the object of the publication being to rekindle ani- 
 mosities between England and France by the personal abuse of 
 the sovereign of one of them, it was highly necessary to repress an 
 offence of so dangerous a nature : and that such libels might be 
 supposed to have been made with the connivance of the state 
 where they were published, unless the authors were subjected to 
 punishment, {q) So a defendant was found guilty upon an in- 
 formation cliarging him with having published the following libel : 
 ' The Emperor of Russia is rendering himself obnoxious to his 
 subjects by various acts of tyranny, and ridiculous in the eyes of 
 Europe by his inconsistency. He has lately passed an edict to 
 prohibit the exportation of deals and other naval stores. In con- 
 
 (m) Ecx r. Griffin and others, Holt on (/>) Rex !•. D'Eon, 1 Black. Eep. 510. 
 
 Libel, 239. The defendant was conv-icted. 
 
 (n) Rex r. "Williams, 5 B. i: A. 597. (?) Kex r. Lord George Gordon, 1787. 
 (o) Rex r. Tophaui, 4 T. R. 126.
 
 CHAP. III. § xri.J Indictment. 209 
 
 sequence of this ill-judged law, a hundred sail of vessels are likely 
 to return to this country without freight, {r) 
 
 And in a case where the defendant was charged by an informa- 
 tion with a libel upon Napoleon Buonaparte, Lord Ellenborough, 
 C. J., in his address to the jury, said, ' I lay it down as law, that any 
 publication which tends to degrade, revile, and defame persons in 
 considerable situations of power and dignity in foreign countries, 
 may be taken to be and treated as a libel ; and particularly when 
 it has a tendency to interrupt the pacific relations between the two 
 countries.' (s) 
 
 Sec. XII. 
 Indictment for Libel. 
 
 Having stated the different sorts of publications for which a 
 party may be found guilty of libel, we may mention some of the 
 points relating to the indictment on a prosecution for this offence. 
 
 An indictment for a libel must import to whom the libellous Indictment, 
 matter referred : and stating that the libel was published to defame 
 and vilify J. S., and to bring him into disgrace, and concludino- 
 that it was to the great scandal and disgrace of J. S., is not suffi- 
 cient to show that the libellous matter referred to J. S. An in- 
 dictment stated that the defendant intended to vilify W. S., Mayor 
 of Colchester, and a justice ; and in order to cause it to be believed 
 that W. S., as such mayor, had been guilty of great abuse in gTant- 
 ing an ale-licence to J. L., and in order to bring him into great 
 di.sgrace, published a certain scandalous libel, in which said libel 
 was contained, &c., and the libel stated a speech supposed to have 
 been made before the borough magistrates by a fictitious character, 
 called Excise, who was supposed to lay before them a case of gross 
 corruption, sanctioned by the mayor {innuendo the said W. S.) to 
 the great scandal, injury, and disgrace of the said W. S. The 
 usual allegation, that the libellous matter was of and concernino- 
 W. S. was omitted ; and, on account of this omission, the judg- 
 ment Avas arrested, {t) Where a count alleged that the defendant 
 published of and concerning the Duke of Brunswick the following 
 libel : ' the evidence to facts in relation to the particular subject 
 alluded to is procuring ; and Ave have no doubt sufficient infor- 
 mation will be obtained for a strong case to lay before the 
 Home Secretary, to enable that functionary to cause it to be inti- 
 mated to the suspected party (meaning the said duke) that his 
 presence here can be dispensed with, as it may be attended with 
 danger to himself,' thereby meaning and intending to have it be- 
 lieved that the said duke was suspected of having committed and 
 had committed some crime which would bring his life into danger 
 from the laws of England ; the count was held bad on error, bc- 
 
 (?•) KexiJ. Vent, 1801. (<) Eex v. lliirsdon, 4 JI. & S. 1G4. 
 
 (s) Rex v. Peltier. Holt on Libel, 78. Lord Kllfnboroui,'h .snid, that il'byiucvit- 
 
 2 Starkie on Libel, 218. The defendant able construction no other ]ierson could 
 
 was convicted, but never was called n])on have been intende<l but W. S., he should 
 
 to receive tlic judjj;ment of the Court. liave been inclined to .'suiijiort tiic iiulict- 
 
 Shortly after the trial, war broke out nient; but thatdid not ajuiear. Clement r. 
 
 between Great Britain and France. Fisher, 7 B. &. C. 459 ; 1 M. &P. 281, S. P.
 
 210 Of Lihel, i&c. [hook v. 
 
 cause it <li(l not show in wli.-vt manner tlie life of tlie duke would 
 be (Mulan'-'ered. (a) JJut wlierc a count alleged that the defendant, 
 intendin;'' to defame the Duke of Brunswick, published a libel 
 containing divers false and malicious matters and things of and 
 concvrnint,'' the said duke, that is to say : We slu)uld think that no 
 Inly wouid admit to her society such a crack-brained scamp as 
 the Duke of lirunswick (meaning the said duke), the Court of 
 Exchequer Chamber held that these averments showed sufliciently, 
 ■without more formal introduction, that the libel was of and cou- 
 ccrning the duke, (v) 
 
 An information stated, that defendant, intending to excite 
 hatred against the government of the realm, and to cause it to be 
 believed that divers subjects had been inhumanly killed by cer- 
 tain troops of the King, published a libel of and concerning the 
 government of this realm, and of and concerning the said troops, 
 which lil)el stated, that the defendant saw with abhorrence, in the 
 newspapers, the accounts of a transaction at Manchester, and 
 alleged, that unarmed and unresisting men had been inhumanly 
 cut down by the dragoons (meaning the said troops), and then 
 commented strongly upon this being the use of a standing army, 
 and called upon the people to demand justice, &c. ; but it did not, 
 in terms, say, that the dragoons acted under the authority or orders 
 of the government. After conviction, a motion was made in arrest 
 of judgment, on the ground that it did not sufficiently appear that 
 the libel was written of and concerning the government, nor of or 
 concerning what troops it was written : but the Court lield, that it 
 was obvious, from its whole tenor and import, that it meant to 
 cast imputations upon the government ; that it was a libel to 
 impute crime to any of the King's troops, though it did not define 
 Avhat troops in particular were referred to ; and that the innuendo 
 of ' the said troops ' meant the undefined part of those troops, {^v) 
 It is the duty of a judge to say whether a publication is capable of 
 the meaning ascribed to it by an innuendo ; but when the judge 
 is satisfied of that, it must be left to the jury to say whether the 
 publication has the meaning so ascribed to it. (cc) 
 
 Where written or printed matter in itself imports a libel on a 
 person, no statement of extrinsic circumstances, by way of in- 
 ducement, is necessary. It is no objection, therefore, in arrest of 
 judgment that words are not explained by an innuendo Avhere they 
 are commonly enough understood in a libellous sense to warrant 
 a jury in so applying them;(7/) and if, in such a case, there be 
 innucndos improperly enlarging the sense, they may be rejected as 
 surplusage after verdict; (z) for on motion in arrest of judgment, or 
 on error, an innuendo, which is not wai'ranted by the words them- 
 selves, or properly connected with them by prefatory matter, may 
 be rejected, (a) But the case would be diiferent if the words were 
 
 (h) Gregory v. The Queen, 15 Q. B. where there was no innuendo to exjilain 
 
 974. ' trnckniaster, ' and it was held 1 hat it was 
 
 (v) Gregorj* v. The Queen, 15 Q. B. itroperl}' k^ft to the jury to say whether 
 
 957. it was used in a defamatory sense, though 
 
 (ip) Ecx r. Burdett, 4 B. & A. 314. no evidence was given to explain its 
 
 [x) Blagg r. Sturt, 10 Q. B. 899 ; meaning. 
 
 Hunt r. Gooillake, 43 L. J. C. P. 54 ; (z) Harvey r. French, 2 T\-rw. 585, 
 
 Mulligan r, Cole. 44 L. J. Q. B. 153. 1 C. & U. U. 
 
 {!/) Hoare r. Silverlock, 12 Q. B. 624. ('/) Williams r. Rtott, 3 Tyrw. 688 ; 
 
 See Homer r. Taunton, 5 H. & N. 661, 1 C. k M. 675. Per Bayley, B.
 
 CHAP. III. § xiil] Evidence — Plea — Trial. 211 
 
 capable of two senses, and the innuendo ascribed one meaning to 
 them, and was good on the face of it. {h) If there be contained in 
 the alleged libel matter which is capable of receiving the interiDre- 
 tation put upon it by an innuendo, there is no fault in the count 
 for not having explanatory averments to fix and point the libel. 
 But generally if the words written or spoken cannot apply to 
 the individual, no previous averments or subsequent innuendos 
 can help to give the words an application which they have not. 
 ' Suppose the words to be, " a murder was committed in A.'s 
 house last night," no introduction can warrant the innuendo 
 " meaning that B. committed the said murder," nor would it be 
 helped by the finding of the jury for the j)laintiff. For the 
 Court must see that the words do not and cannot mean it, and 
 would arrest the judgment accordingly, (c) But if an innuendo 
 ascribes to certain words a particular meaning, which cannot be 
 supported in evidence, the innuendo, if well pleaded in form, 
 cannot be repudiated on the trial, so as to let in proof that the 
 words have another meaning, (c^) If words be laid to be uttered 
 with intent to convey a particular meaning to persons present, it 
 must be proved that the party uttering them had that meaning, 
 and that they were so understood by the hearers, (e) 
 
 Sec. XIII. 
 
 Evidence — Plea — Trial, &c. — Lord Campbell's Act. 
 
 It may be laid down generally that all who arc concerned in of the making 
 composing, writing, and publishing a libel, are guilty of the mis- and publica- 
 demeanor, unless the part they had in the transaction was a lawful tio«i of a, libel, 
 or an innocent act. (/) Thus upon an information against the de- 
 fendant, for printing and publishing a libel, the evidence was, that 
 he acted as servant to the printer, and clapped down the press ; 
 and few or no circumstances were offered of his knowing the im- 
 port of the paper, or being conscious that he was doing anything 
 illegal ; and Raymond, C. J., held that this made the defendant 
 guilty, and so the jury found him. (g) But there must be a publi- 
 cation ; and the mere writing or composing a defamatory paper by 
 anyone, which is confined to his closet, and neither circulated nor 
 read to others, will not render him responsible ; nor will he be 
 held to have published the paper, if he deliver it, by mistake, out 
 of his study, {h) But this position admits of groat doubt, and two 
 very great judges seem to have been of opinion, that one who 
 composes or writes a libel Avith intent to defame another, is guilty 
 of a misdemeanor, although the libel be not published, (i) A 
 
 (b) Ban-ett v. Long, 3 H. L. C. 395. Day v. Robinson, 1 Ail. & E. 554, 4 N. 
 
 (c) Solomon v. Lawson, 8 Q. B. 823, & M. 884. West v. Smith, 1 T. & G. 
 per curiam. 825. Kelly v. Tartington, 5 B. & Ad. 
 
 (d) Williams v. Stott, supra. 645. 
 
 (c) Per Baylcy, B., ibid., citing Wool- (/) Bac. Abr. tit. LiM (B.) 1. 
 
 noth V. Meadows, 5 East, 470. See as (g) llvx v. Clerk, 1 l^arnanl, 304. ,^C(l 
 
 to tlie ofTicc nntl nature of an innuendo, qa., and ridr Day v. I5reani, jios/, y. 224. 
 1 Stark, on Librl, 418, d sr.q. Clegg c. (/() Kcx v. Paini', 5 j\lod. ll)5, ]()7. 
 
 LalTer, 10 Bing. 250, 3 M. & S. 727. (0 Lord Tcutcrden, C. J., and llol- 
 
 1- 2
 
 o 1 1> of Lihcl, dc. [book v. 
 
 count cliar"iii<,' a (K'fciid.iiit witli IiHvirif,^ an oLsccnc libel in his 
 poHsi'ssioii, willi intent to puliiisli it, seems to be bud. (j) And it 
 ^vill not bf :i jtublication of a liljel if a party takes a copy of it, 
 provided lie never pnljlislies it; {k) bnt a person wlio ii])p(.'ars once 
 to have written a libel, which is afterwards published, will be con- 
 sidered as tiie maker of it, unless he rebvit the jtrissumption of law 
 by showing another to be the author, or prove the act to be inno- 
 cent in himself, [l) For by Holt, C. J., if a libel appears under a 
 man's handwritin<j, and no other author is known, he is taken in 
 the mainour, {'ni) and it turns the proof upon him ; and if he cannot 
 produce the composer, it is hard to find that he is not the very 
 man. {)>) Where the manuscript of a libel was in the handwriting 
 of the defendant, and a printer had printed five hundred copies 
 from it, three hundred of which had been posted about Birming- 
 ham, but there was no evidence to connect the defendant with the 
 printing or the posting, except the handwriting, it was held, that 
 there was evidence to go to the jury that it was published by the 
 defendant, (o) So the sale of an obscene print to a person in a 
 private room, he having requested that such print should be shown 
 to him, his object being to prosecute the seller, is a sufficient pub- 
 lication. ( p) Where, in an action for libel contained in a pamphlet, 
 a witness proved that the defendant gave her a pamphlet, and that 
 she read parts of it, and that she had lent it to several persons, 
 and it was returned to her, but she could not swear the copy pro- 
 duced was the same pamphlet the defendant gave her, but it was 
 an exact copy, if it was not the same, and she believed it to be the 
 
 royd, J., in Rex v. Burdett, 4 B. & A. 95. 
 Lord Teutertleu said, ' The composition 
 of a treasonable paper intended for publi- 
 cation, lias, on more than one occasion, 
 been held an overt act of high treason, 
 although the actual publication had been 
 intercepted or prevented, and 1 have heard 
 nothing on the present occasion to con- 
 vince my mind that one who composes or 
 writes a libel with intent to defame, may 
 not, under any circumstances, be pun- 
 ished, if the libel Ik" not published.' liol- 
 royd, J., said, 'Where a misdemeanor 
 has been comniitted by writing and pub- 
 lishing a libel, the writing of such a libel 
 so published is in my opinion criminal, 
 and liable to be punished by the law of 
 England as a misdemeanor, as well as the 
 publishing of it.' And again, 'The com- 
 posing and WTiting, with intent and for 
 the purpose above stated, of a libel 
 proved to have been published by the de- 
 fendant, is in my opinion of itself a mis- 
 demeanor, in whatever county the pub- 
 lishing of it look place.' Upon the 
 principle that an act done, and a criminal 
 intention joined to that act, are sufficient 
 to constitute a crime (voL 1, p. 190), it 
 should seem that writing a libel with in- 
 tent to defame is a crime. C. S. G. 
 
 (j) \iexv. Eosenstein, 2 C. & V. 414, 
 Park, J. J. A. Tliis count seems clearly 
 bad, on the ground that no act was 
 diarged ; it is precisely similai" to Kcx v. 
 Stewart, vol. 1, p. 191. C. S. G. 
 
 (Jc) Com.Di<r.t\t. Libel (B.) 2. Lamb's 
 case, 9 Co. .596. But see Kex v. Beare, 
 2 Salk. 417. 1 Lord Kavm. 414. 
 
 (I) Bac. Abr. tit. ZiY/cZ (B.)l. Lamb's 
 case, 9 Co. 59. The writing a libel 
 may be an innocent act in the clerk 
 who draws the indictment, or in the 
 student who takes notes of it. But in 
 :Mal(.ney r. Bartley, 3 Campb. 210, 
 "Wood, B., held, on the trial of an action 
 for a libel, in the s\mi>e of an extra-judicial 
 alHdavit sworn before a magis-trate, that a 
 person who acted as the magistrate's Clerk 
 was not bound to answer whether by the 
 defendant's orders he wrote the attldant, 
 and delivered it to the magistrate, as he 
 might thereby criminate liimself. 
 
 (m) A man was taken with the main- 
 our, mainouvre, when he was taken with 
 the thing stolen in his possession, or, as 
 it was termed in the ancient indictments, 
 captits CKvi manu opcrc, and when so taken 
 he might be brought into Court, arraigned, 
 and tried without a giand jury. 2 Hale, 
 148. And some lords of manor.? had 
 jurisdiction to try such cases ; for I have 
 the record of such an indictment for 
 horse stealing, tried in the Court of 
 Leek, Stallbrdshire, in the 35 Edw. 1. 
 C. S. G. 
 
 («) Rex f. Beare, 1 Lord Raym. 417. 
 2 Salk. 417. 
 
 (o) Keg. V. Lovett, 9 C. & P. 462, 
 Littledale. J. 
 
 ( i>) Reg. V. Carlisle, 1 Cox, C. C. 229.
 
 CHAP. III. § XIII. J Evidence — Plea — Trial. 213 
 
 same, it was held that this was sufficient evidence to be left to the 
 jury. (^) . . . 
 
 The reading of a libel in the presence of another, without 
 previous knowledge of its being a libel, or the laughing at a libel 
 read by another, or the saying that such a libel is made by J. S., 
 whether spoken witli or without malice, does not amount to a 
 publication. And it has also been held, tliat he who repeats part 
 of a libel in merriment, without any malice or purpose of de- 
 famation, is not punishable, [r) In an action for a libel contained 
 in a caricature print, where the witness stated, that having heard 
 that the defendant had a copy of this print, he went to his house 
 and requested liberty to see it, and that the defendant thereupon 
 produced it, and pointed out the figure of the plaintiff and the 
 other persons it ridiculed, Lord Ellenborough, C. J., ruled that 
 this was not sufficient evidence of publication to support the 
 action, {s) 
 
 Proof that the libel was contained in a letter directed to the 
 party, and delivered into the party's hands, is sufficient proof of 
 a publication upon an indictment or information, {t) Addressing 
 a letter to a wife, containing matter reflecting on her husband, is a 
 sufficient pubHcation to support an action, (u) And delivering a 
 libel sealed, in order that it may be opened and published by a 
 third person in a distant county, is a publication, (y) The pro- 
 duction of a letter containing a libel with the seal broken, and the 
 postmark on it, is 2^'^"i'>nd facie evidence of publication, (iv) 
 
 In an information for a libel against the doctrine of the Trinity, Acknowledg- 
 the witness for the Crown, who produced the libel, swore that it ™®°* °^ *^^ 
 was shown to the defendant, who owned himself the author of that 
 book, errors of the press and some small variations excepted. The 
 counsel for the defendant objected that this evidence Avould not 
 entitle the attorney-general to read the book, because the con- 
 fession was not absolute, and therefore amounted to a denial that 
 he was the author of that identical book. But Pratt, C. J., 
 allowed it to be read, saying he would put it upon the defendant 
 to show that there were material variances, {cc) 
 
 defendant. 
 
 iq) Fryer v. Gatliercole, 4 Ex. R. 262. 
 
 (?■) Bac. Abr. tit. Libel (B.) 2. This is 
 doubted in 1 Hawkins, P. C. c. 73, s. 14, 
 on the gi'ound that jests of such a kind are 
 not to be endured, and that the injury to 
 tlie reputation of tlie party grieved is no 
 way lessened by tlie merriment of him 
 who makes so light of it. As to reading 
 a libel in the In^aring of others, knowing 
 it to be such, being a publication of it, 
 see Bac. Ab. Libel (B.) 2. 
 
 (.S-) Smith t;. Wood, 3 Campb. 323. 
 And see Rex v. Paine, 5 Mod. iCia, where 
 a 7«. is made in the margin, wiu^ther a 
 person who has a libellous writing in his 
 ])ossession, and reads it to a private fi'iend 
 in his own house, is thereby guilty of 
 jitiyblisJiinq it. 
 
 {t) 1 liawk. P. C. c. 73, s. n. Bac. 
 Abr. tit. Libd (B.) 2, n. (a), S(dw. 
 N. P. 105n, 7). (9). Reg. v. I'.rooke, 7 
 Cox, C. C. 2")!. A further pnldication is 
 necessary to snpjiort an action. Thus it 
 has been held tliat where the action was 
 
 brought for a libel contained in a letter 
 transmitted by the defendant to the 
 plaintiir, hy means of a third person, it 
 is a question for tlio jury whether there 
 has been any publication except to the 
 plaintill" himself, and that if there has 
 not, the defendant is entitled to their 
 verdict. Clutterbuck v. Chalfers, 1 Stark. 
 R. 471. But in an action for a libel con- 
 tained in a letter written by tlie defen- 
 dant to the plaintilf, it was holden tiiat 
 proof tiiat the defendant knew that the 
 letters sent to the jilaintilf were usually 
 opened by his clerk, was evidence to go 
 to tiie jury of the defendant's intention 
 tliat the Icttershould be read by a third per- 
 son. Delacroixc. Tiievenot, 2."^tark. R. 03. 
 
 {u) AVeiiman r. .Vsh, 13 C. B. 83G. 
 
 {v) Ri'X V. Burdett, 4 B. & A. 95, post, 
 p. 219. 
 
 (r') Warren j'. Warren, 4 T^tw. 8.50. 
 1 C. U. k \\. 300. Sliipiey v. Todhunter, 
 7 v. & \\ C80. 
 
 (.i) Rex V. Hall, 1 Str. 416.
 
 214 Of Libel, &c. [hook v. 
 
 IVooiiririK It sooHis to 1)0 njijrcMMl, that not only he who piihlishos a lihel 
 
 niKiilHT to liiiMst!ll", hilt also 111! wliu procures uuoLhcr to do it, is ^Miilty ot" tlic 
 
 V'l.i'r'ltinii' imhlicatioii ; and it is held not to ho material whetiicr he who 
 disperses a Hhel know anything of the contents or oH'ect.s ot" it or 
 not, for that nothing would bo moro easy than to publish the most 
 virulent jiajters with the greatest security, if the concealing the 
 j)iir|)()rt oi' them from an illiterate publisher would make him safe 
 in (lispersing them, {z) Where a reporter to a newspaper proved 
 that hi' liad given a written statement to the editor of the paper, 
 the contents of which had been communicated to liim by the 
 defendant for the purpose of such publication, and that the news- 
 paper then produced was exactly the same, with the exception of 
 some slight alterations, not affecting the sense ; it was held, that 
 what the reporter published, in consequence of what passed with 
 the defendant, might be considered as published by the defendant ; 
 but that the newspaper could not be read without producing the 
 written account delivered by the reporter to the editor. (/<) 
 A liiicl written The defendant was indicted for causing to be published in a 
 by tlic iksiic newspaper a libel which told a story of the prosecutor, and added 
 of ami after- comments on the story, efivini; it a ludicrous character. The editor 
 proved of by of the newspaper stated that the defendant had expressed a wish 
 the defendant, to him that hc would ' show up ' the prosecutor, and had told him 
 the story. The witness communicated it to a reporter for the 
 paper, and the libel was substantially what was so communicated. 
 Before the publication the defendant remarked to the witness that 
 the article had not yet appeared. After it had appeared, the 
 defendant told the witness that he had seen it, and that he liked 
 it very much. The witness had heard the story before the defendant 
 told it him. The Court of Queen's Bench held, that on this evi- 
 dence the jury might find that the defendant authorized the 
 publication of this particular libel, notwithstanding the comments 
 added, as there was both a general authority to publish, and an 
 approval of the particular publication, (h) 
 
 In an action for libel the plaintiff complained of the publication 
 in certain newspapers of reports of the proceedings of a board of 
 guartliaus, containing defamatory statements concerning himself 
 At the meeting at which the proceedings in question took place, 
 reporters were present in the discharge of their duty as repre- 
 sentatives of newspapers. One of the defendants was chairman of 
 the meeting, and the other was present and took part in the pro- 
 ceedings. The latter said that he hoped the local press would take 
 notice of ' this scandalous case,' and requested the chairman to give 
 an account of it. This he accordingly did, and in the course of 
 his statement said, ' I am glad gentlemen of the press are in the 
 room, and I hope they will take notice of it.' The other defendant 
 thereupon said, * And so do I.' The reports complained of were 
 
 (:) Bac. Abr. tit. Libel (B.)2. 1 Hawk. ^\Titten in pursuance of his request : he 
 
 P. C. c. 73, s. 10. contributes to a misdemeanor, and is 
 
 {a) Adams r. Kelly, R. & 51. N. P. C. therefore responsible as a principal.' 'I 
 
 157 ; Parkes v. Prescott, 38 L. J. Ex. have no doubt that a man who employs 
 
 105. another generally to write a libel must 
 
 (b) Reg. V. Cooper, 8 Q. B. 533. take his chance of what appears, though 
 
 Lord Denman, C. J., said, ' If a man something may be added which he did 
 
 request another generally to write a libel, not state.' 
 he must be answerable for any libel
 
 CHAP. III. § XIII.] Evidence — Plea — Trial. 
 
 215 
 
 Publication by- 
 booksellers and 
 
 newspapers. 
 
 afterwards inserted in the newspapers, being somewhat condensed, 
 but substantially correct, accounts of what had been said at the 
 meeting. These reports were set out in the declaration, and con- 
 stituted the libels complained of. The judge at the trial directed 
 a verdict for the defendants, on the ground that there was no evi- 
 dence of a publication by the defendants of these libels, to which 
 direction the jDlaintiff excepted. Held (per Keating, J., Montague 
 Smith, J., and Hannen, J., dissentientibus Byles, J., and Mellor, 
 J.), that the direction was wrong, and that there was evidence for 
 the jury. Per Byles, J., ' There is a distinction between the 
 authority which will make a man liable criminally, and that which 
 will make him liable civilly for the acts of another.' (c) 
 
 It was for a long time held, that the buying of a book or paper 
 containing libellous matter, in a bookseller's shop, was sufficient 
 evidence to charoe the master with the publication, although it did P^oP"^**''^^ of 
 
 111 f 1111-1 newsiianera. 
 
 not appear that he knew of any such book being there, or what 
 the contents thereof were, and though he was not upon the pi'e- 
 mises, and had been kept away for a long time by illness; and it 
 would not be presumed that it was bought and sold there by a 
 stranger ; but the master must, if he suggested anything of this 
 kind in his excuse, prove it. (d) So the proprietor of a newspaper 
 was answerable criminally as well as civilly for the acts of his ser- 
 vants in the publication of a libel, although it could be shown that 
 such publication was without the privity of the proprietor ; (e) for 
 a person who derives profit from, and who furnishes means for, 
 carrying on the concern, and entrusts the conduct of the publica- 
 tion to one whom ho selects, and in whom he confides, may be said 
 to cause to be published what actually appears, and ought to be 
 answerable, although it cannot be shown that lie was individually 
 concerned in the particular publication ; (/) and these are acts done 
 in the course of the trade or business carried on by the master. 
 But there were cases in which the presumption arising from the 
 proprietorship of a paper might be rebutted, (g) See when this 
 presumption can now be rebutted, 6 & 7 Vict. c. 96, s. 7, noticed 
 'fost, p. 227. 
 
 (c) Parkes v. Prescott and Ellis. 38 
 L. J. Ex.105, et -per Montague Smith, J., 
 whilst delivering the judgment of the 
 majority of the Court, ' In the rcsnlt, I 
 come to the conclusion that, on princii)le 
 it is correct to hold that, where a man 
 makes a reqncst to another to publish 
 defamatory matter, of which, for the pur- 
 pose, he gives Iiim a statement, whether 
 in full or in outline, and the agent pub- 
 lishes that matter, adhering to the sense 
 and sulistance of it, although the lan- 
 guage bo to some extent his own, the 
 man making the request is liable to an 
 action iis the publisher. If the law were 
 otherwise, it wonld, in many cases, 
 throw a shield over those who are the real 
 authors of libels, and who seek to defame 
 otiicrs undiM' what would then bo the safe 
 shelter of intermediato agents. I make 
 this observation only with reference to 
 the general (•onse([uonces which would re- 
 sult from the argunients relied on to sus- 
 tain the defendant's contention. 
 
 (rf) Bac. Abr. tit. Libel (B.) 2. Ilex r. 
 Nutt, Fitzgib. 47. 1 Barnard. K. B. 
 306. 2 Sess. Cas. 33, pi. 38. And see 
 also Rex \i. Almon, 5 Burr. 2686. And 
 by Lord llardwicke, in 2 Atk. 472. 
 ' Though printing jjapers and pamphlets 
 is a trade b}' which persons get their 
 livelihood, yet they must take eareto use 
 it with prudence and caution ; for if they 
 print anything that is libellous, it is no 
 excuse to say that the printer had no 
 knowledge of tho contents, and was 
 entirely ignorant of its being libellous.' 
 
 (e) Kex i\ Walter, 3 Esp.'X. P. (.". 21 ; 
 Pex V. Dod, 2 Sess. C"as. 33, jil. 3S. In 
 1 Hawk. P. C. c. 73, .s. 10 (7th edit.) 
 Woodfall's case, Essay on Libels, p. 18. 
 Salmon's case, B. U. Hil. 1777, and Kox 
 V. Almon, 5 Burr. 2687. 
 
 (/) Rex V. (iuteh, .Moo. & iM. 433, 
 Lord Tenterden, I'. J. 
 
 {(I) Kex r. (Juteh, Moo. & M. 433, 
 Lonl Tenterden, (.'. J., and see Ilex v. 
 Almon, 5 Burr. 2686.
 
 210 ( >/' L/'hcl, dc. [book V. 
 
 Ill Mil action for a lilx;!, wlicro it npiifarfil upon ilio ovidcnccj tliat 
 (lie tldciKlant, a tradi'siiiaii, was acciistoiiK.'d to employ his dan^ditor 
 1(1 w rilo liis hills and letters ; tliat a customer, to whom a bill written 
 hy the dau/^htcr had been sent hy the daughter, sent it back on the 
 grouiiil ol" the charge l)cing too high, and that the bill was afterwards 
 returned to the customer inclosed in a letter also written l»y the 
 defendant's daughter, and being a libel upon the plaintiff who had 
 inspected and reduced the bill for the customer ; it was holden 
 that this was not sufficient evidence to go to a jury, either of com- 
 mand, authority, adoption, or recognition by the defendant, (h) 
 Proceedings The proceedings against the printers, publishers, and proprietors 
 
 npainst gf ncwspapcrs for any libel contained in such papers were much 
 
 mnvspniicrs. facilitated l)y the HH Geo. 8, c. 78, which was repealed by the 6 
 & 7 Will. 4, c. 70. This statute also contained enactments facilita- 
 ting such proceedings. But these enactments, except sec. 1!), are 
 repealed by 32 & 3'i Vict. c. 24. Sec. llj enacts that, ' If any person 
 shall file any bill in any court for the discovery of the name of any 
 person concerned as printer, publisher, or proprietor of any news- 
 paper, or of any matters relative to the printing or publishing of any 
 newspaper, in order the more effectually to bring or cany on any 
 suit or action for damages alleged to have been sustained by reason 
 of any slanderous or libellous matter contained in any such new.s- 
 papcr respecting such person, it shall not be lawful for the defen- 
 dant to plead or demur to such bill, but such defendant shall be 
 compelhxble to make the discovery required ; provided always that 
 such discovery shall not be made use of as evidence or otherwise 
 in any proceeding against the defendant, save only in that proceed- 
 ing for which the discovery is made. 
 Persons rrint- By 30 Geo. 3, c. 79 (an Act for the more effectual suppression of 
 '"^'(1^^^^'^ ^°^ societies established for seditious and treasonable purposes, and 
 '' ' for better preventing treasonable and seditious practices), s. 29, 
 
 ' Every person who shall print any paper for hire, reward, gain, or 
 profit shall carefully preserve and keep one copy (at least) of every 
 paper so printed by him or her, on which he or she shall write, or 
 cause to be written or printed, in fair and legible characters, the 
 name and place of abode of the person or persons by whom he or 
 slie shall be employed to print the same ; and every person print- 
 ing any paper for hire, rew^ard, gain, or profit, who shall omit or 
 neglect to write, or cause to be written or printed as aforesaid, the 
 name and place of his or her employer on one of such printed 
 papers, or to keep or preserve the same for the space of six calen- 
 dar mouths next after the printing thereof, or to produce and show 
 the same to any justice of the peace who within the said space of 
 six calendar months shall require to see the same, shall for every 
 such omission, neglect, or refusal, forfeit and lose the sum of 
 twenty pounds. 
 
 By sec. 31, nothing herein contained shall extend to the im- 
 pression of any engi-aving, or to the printing by letterpress of the 
 name, or the name and address, or business or profession, of any 
 person, and the articles in which he deals, or to any papers for the 
 sale of estates or goods by auction or otherwise. 
 
 (/() Harding v. Greening, 8 Taunt. 42. liy whose direction the letter was written. 
 And it was also held in tliis case that tlie The answer would tend to fix herself with 
 daughter could not be compelled to prove the crime of writing it.
 
 CHAP. III. § XIII.] Evidence — Plea — Trial. 217 
 
 Sees. 34, 35 & 30 relate to the recovery of the penalties. This 
 Act, by 51 Geo. 3, c. (55, does not require the name and residence 
 of printers to be put to bank notes, bills, &c., or to any paper 
 printed by authority of any public board or public office. See 32 
 & S3 Vict. c. 24. 
 
 By 2 & 3 Vict. c. 12, s. 2, ' Every person who after the passing printers namo 
 of this Act shall print any paper or book whatsoever which shall to '« printed 
 be meant to be published or disjiersecl, and who shall not print upon ^^J^^^ ^q{,q 
 the front of every such paper, if the same shall be printed on one published, 
 side only, or upon the first or last leaf of every paper or book which 
 shall consist of more than one leaf, in legible characters, his or her 
 name and usual place of abode or business ; and every person who 
 shall publish or disperse, or assist in publishing or dispersing, any 
 printed paper or book on which the name and place of abode of the 
 person printing the same shall not be printed as aforesaid, shall for 
 every copy of such paper so printed by him or her forfeit a sum 
 not more than five pounds. Provided always, that nothing herein 
 contained shall be construed to impose any penalty upon any per- 
 son for printing any paper excepted out of the ojseration of the 
 said Act of the 39 Geo. 3, c. 79, either in the said Act or by any Act 
 made for the amendment thereof 
 
 By sec. 3, in the case of books or papers printed at the Univer- 
 sity Press of Oxford, or the Pitt Press of Cambridge, the piinter, 
 instead of printing his name thereon, shall print the following 
 words : " Printed at the University Press, Oxford," or " The Pitt 
 Press, Cambridge," as the case may be. 
 
 By sec. 4, no actions, &c. for penalties are to be commenced 
 except in the name of the Attorney or Solicitor-General in 
 England or the Queen's Advocate in Scotland. See 32 »& 33 
 Vict. c. 24. 
 
 Before the 38 Geo. 3, c. 78, it was holden, upon an indictment Proof of publi- 
 for a libel in a newspaper, that evidence that the paper had been c^vtion. 
 sold at the office of the defendant, that the defendant, as proprietor 
 of the paper, had given a bond to the stamp office pursuant to 
 the 29 Geo. 3, c. 50, s. 10, for securing the duties on the adver- 
 tisements, and that he had from time to time applied to the 
 stamp office respecting the duties on the paper, was evidence to 
 be left to the jury, to show that the defendant was the publisher. (y) 
 And since the statute it has been held to be sufficient evidence of 
 a publication at common law to put in the original affidavit of the 
 j)roprietor stating where the jDaper was to be published, and to 
 prove that a paper with a corresponding title, containing the 
 libel, was purchased there, {h) This was held in a case where it 
 had been previously ruled that in order to render the certified 
 copy of the affidavit made by the proprietor of a newspaper evi- 
 dence under the 38 Geo. 3, c. 78, it must either appear upon the 
 jurat tliat the person before whom it was made liad authority to 
 take it, or this fact must appear aliunde. (I) So the delivery of a 
 newsjDaper to the officer at the stamp office is a sufficient publica- 
 tion to sustain an indictment for a libel in the paper. (?vi) So proof 
 that the defendant, as i^roprietor of the newspaper in which a iibel 
 
 (./) Rex i\ Topliiun, 4 T. R. 126. 
 (it) Rex V. White, 3 Canipb. 100. 
 
 {D Rex V. Wliito, 3 Campb. 99. 
 (in) Rex V. Aniplilit, 4 b. & C. 35.
 
 21 S {)/ Libel, &c. [book v. 
 
 is contaiiind, accounted with the distiibtitor of stamps for tho (hity 
 on advert iscnicnts in tlie paper, is sullieient evid(Miee of a j»nljli(;a- 
 tion by the defeii(hint. (//) An affidavit accordinj[^ to the repealed 
 st.'ilnte .SS (.Jeo. '.\, c. 7«S, together with the pn^dnction of a news- 
 pa|)er, corresponding in every respect witli the description of it 
 in the allidavit, was not only evidence of the pnhlication of snch 
 p,i|)er by the parties named, but was also evid(!nce of its pub- 
 lication in the county where the printing of it was described to 
 bo. (o) AV'here in an action for libel in a newspaper a certified 
 copy of the stamp office declaration was put in, which stated 
 the title of the paper to be 'The Leicester Herald and Mid- 
 land Counties Advertiser,' and the intended place of publication 
 to be ' No. 28, Charles Street, in the parish of St. Margaret, 
 in the borough of Leicester,' and the paper containing the libel 
 had the same title, but the place of publication was ' at the 
 corner of Charles Street and Hadfiold Street, in the parish of 
 St. Margaret, in the borough of Leicester ; ' Lord Denman, C. J., 
 held that the evidence of identity was sufficient {p) to enable the 
 plaintiff to put the newspaper in evidence under the 8th section of 
 & 7 Will. 4, c. 76 (now repealed). But if the affidavit from the 
 stamp office and the jjaper varied in the place Avliere the paper was 
 stated to be printed, as where the affidavit stated it to be ' in Union 
 Street, Castle Street,' and the paper ' in Union Buildings, John 
 Street,' the production of the affidavit and paper was not suffi- 
 cient. (5) So whei-e the affidavit described the proprietor's resi- 
 dence to be in ' Red Lion Street, St. Ann's Sijuare,' and on the 
 paper it was described as in ' St. Ann's Square ; ' Lord Tenterden 
 held that as the party was not excluded from other proof of 
 publication, if he relied on the statutory proof, be must bring 
 himself within the statute, and that the discrepancy was 
 fatal. (?■) In moving for a criminal information a prosecutor 
 was not bound to adopt the statutory proof, but if he adopted 
 any other the publication must have been shown by some direct 
 proof, (s) 
 Mortgagee of Where in an action for libel to prove that the defendant, 
 
 a newspaper. Harmer, was the proprietor of the ' Sun ' ne^vspaper, a certified 
 copy of the declaration made at the stamp office under the repealed 
 enactment 6 & 7 Will. 4, c. 76, s. 6, was put in, and it was a joint 
 declaration, and stated that, ' We are the sole proprietors ; that is 
 to say, the said James Harmer, as legal owner as mortgagee, and 
 ]\Iurdo Young, as owner of the equity of redemption ; ' it was ob- 
 jected that this declaration showed that the defendant was a mort- 
 gagee only, and not a proprietor against whom an action for libel 
 could be maintained ; but Lord Campbell, C. J., held that the 
 defendant was liable, {t) 
 The libel must Upon the trial the libel must in general be produced on the 
 
 (n) Cook V. AVard, 6 Bing. 409, 4 M. (q) Ecx v. Franccys, 2 Ad. & E. 49. 
 
 & r. 99. (?•) Murray r. Souter, cited 6 Bing. 
 
 (0) Kcx r. Hart, 10 East, 94. Ma^^le 414, in Cook r. "Ward. 
 
 V. Fletcher. 9 B. & C. 382, 4 M. &'R. (s) Re?, v. Baldwin, 8 A. & E. 168, 
 
 311 ; Reg. r. O'Connell, 1 Cox, C. C. and see \Vatts v. Eraser, 7 A. & K 223 ; 
 
 40.=; ; Rex v. Donnison, 4 B. & Ad. 698. K. r. Staiigor, 40 L. J. Q. B. 96 ; Rex r. 
 
 Per Littledale, J., Reg. r. AVoolmer, 12 Pearce, IVake's N. P. C. 75. 
 
 A. & E. 422. (t) Duke of Brunswick v. Hanner, 
 
 {p) Baker v. Wilkiu.son, C. & M. 399. 3 C. & K. 10.
 
 CHAP. III. § XIII.] Evidence — Plea — Trial. 219 
 
 part of the prosecution, and, after sufficient proof of a publication be produced, 
 by the defendant, may be read ; and if tlie libel has merely been ^°^ '"'^^*,^['^" 
 exhibited by the defendant, and he refuses on the trial to produce the indict- 
 it, after notice for that purpose, parol evidence may be given of its ment ; 
 contents, {u) The libellous matter must be set out in the indict- 
 ment ; {v) and the libel proved must appear to correspond with the 
 statement of it in the indictment, and any variation in the sense 
 between the matter charged and that proved will be fatal, {w) But 
 the mere alteration of a single letter, so long as it does not change 
 one word into another, will not vitiate ; though the smallest vari- 
 ance, if it renders the meaning different, will be fataL [x) As to 
 amendments of variances at the trial, see vol. 1, p. 52. 
 
 The libel must also be proved to have been published, by the And must Le 
 party accused, in the county laid in the indictment, {y) But if a proved to have 
 man write a libel in one county and consent to its publication in in^the^cVuBty. 
 another, the consent is sufficient to charge him in the latter 
 county. (0) So if a man write a libel in London, and send it by 
 post addressed to a person in Exeter, he is guilty of a publication 
 in Exeter, (a) And where the defendant wrote a libel in Leicester- 
 shire, with intent to publish it in Middlesex, and published it in 
 Middlesex accordingly, and the information against him was in 
 Leicestershire ; three of the judges held the information right : 
 but Bailey, J., doubted. (6) From the same case it appears to liave 
 been considered that delivering a libel sealed, in order that it may 
 be opened and published by a third person in a distant county, is 
 a publication in the county in which it is so delivered : and fur- 
 ther, that if delivering it open were essential, proof that the 
 defendant wrote it in county A., and that C delivered it unsealed 
 to D. in county B., would be 2'^i'i'>''^(^(' f<-(-cle evidence that the de- 
 fendant delivered it open to C. in the county A., though there be 
 no evidence of C.'s having been in county A. about the time ; or 
 that application had been made to D. to know of whom he received 
 it. The information was in the county of Leicester, for writino- 
 and publishing a libel : and it was proved by the date of the letter 
 that the defendant wrote it in that county, and that Bickersteth 
 delivered it to Brooks for publication in the county of Middlesex, 
 it being then unsealed. Bickersteth was not called as a witness ; 
 and there was no evidence of his having been in the county of 
 Leicester, or how the libel came to him. The jury were told that 
 as Bickersteth had it open, they might presume that he received 
 it open ; and that, as the defendant wrote it in the county of 
 Liecester, it might be presumed that Bickersteth received it in that 
 county ; and three judges held against the opinion of Baylcy, J., 
 that this direction was proj)er ; and they also held that if the de- 
 
 (u) By Ijiiller, J., in Eex v. Watson ment; but if any part qualilies the rest 
 
 and others, 2 T. K. 201. it may be given in evidence, 2 Salk. 41 ?! 
 
 {v) Kex V. Sucheverall, 15 Sta. Tri. See tlio 9 Geo. 4, c. 15, and 14 & 15 
 
 466. Vict. c. 100, s. 1, as to amendments of 
 
 {w) Tabart V. Tipper, 1 Campb. 352. variances, vol. 1, p. 52. 
 And if it appears upon the proof that (.«) Kcx r. Becc)i, 1 Leach, 133 ; Re.x v. 
 
 parts of the libel which are separated by Hart, 1 Leach, 1-15. 
 
 intervening matter are set forth as if they (y) Case of the Seven Bishops, 12 St. 
 
 were continuous, it will be bad, if the Tri. 354. 
 sense is altered by the passage omitted. (z) 12 St. Tr. 331. 
 
 Id. ibid. It is settled that the whole {a) Id. ilnd. 332. 
 
 libel need not be set forth in the indict- {0) Kcx v. Burdett, 4 15. & A. <J5.
 
 220 njIAhd,&c. [book v. 
 
 livcriiit,' open rouM not he picsnmcd, <a delivery soalrul witli a view 
 to ainl lor llic |»iir|i(JS(! <*!' piiljlicatioii was a puhlicatioii ; and they 
 thou^fht there was siiHicient ffround for presuming some delivery, 
 either o|)eu or sealed, in the county of Leicester, (c) It apjtears 
 from this case that the dating a lihel at a particular place is evi- 
 roHt-iniirks. deuce of its having been written at that place, id) The post-mark 
 upon a letter has been considered as no evidence for the pur|)ose 
 of proving that the letter was put into the post-ofhce at the place 
 mentioned by such post-mark, {e) But it appears to be the better 
 opinion that such post-marks, whether in town or country, proved 
 to be such, are evidence that the letters on which they exi.st were 
 in tlic offices to which the post-marks belong at the dates thereby 
 specified. (/) But a mark of double postage having been paid on 
 such letter is not of itself sufficient evidence that the letter con- 
 tained an enclosure, {rj) If a libellous letter is sent by tlie post, 
 addressed to a party at a place out of the county in which the venue 
 is laid in an indictment for the libel, yet, if it were first received 
 by him within that county, it is a sufficient publication to support 
 the indictment, [h) Owning the signature to a libel is no evidence 
 in what county it was signed. This was held in the celebrated 
 case of the Seven Bishops ; but additional evidence being after- 
 wards given that the bishops applied to the Lord President of the 
 Council about delivering a petition to the King, and that they 
 were admitted to the King for that purpose in Middlesex, the case 
 was left to the jury, (i) It has been held to be sufficient to prove 
 a defendant to have 'published a libel without proving him to have 
 composed it, upon a count in an information charging him with 
 having ' composed, printed, and published ' it. {j) So if the de- 
 fendant is charged by a count in an indictment with having ' com- 
 posed, i:)riiiied, and published ' a libel, if the evidence be that he 
 only composed and published it, he may be found guilty of the 
 composing and publishing, and acquitted of the printing, {k) 
 
 If the libel be in n, foreign language, as it is necessary that it 
 should be set forth in the indictment in the original language, and 
 also in an English translation, it will be necessary to prove the 
 translation to be correct. {I) 
 
 (c) Ibid., and MS. Bayley, J. writingdirected as mentioned, andhavinoj 
 
 (d) Rex V. Unrdett, 4 B. & A. 95. the Irish post-mark on the envelopes, 
 
 (e) I\ex r. Watson, 1 Campb. 215. which two letters were proved to be in 
 Lord Elleuborongh, C. J., said the post- the handwriting of the defendant, the 
 mark might have been forged. previous letter ha\'ing been destroyed, it 
 
 (/) Kex V. Plumer, Hil. "T. 1814. was held that this was a sufficient gi-ound 
 
 MS. Bayley, J., and R. & R. 264. Rexf. for the Court to have the letters read ; 
 
 Johnson, 7 East, 65. 2 Stark. EN-id. 456, and the letters themselves containing ex- 
 
 and Fletcher v. Bradd)-ll, note (g), ibid. pressious of the writer, indicative of his 
 
 ((/) Rex r. riumcr, supra, note (/). liaving sent them to the ]>ublisher of the 
 
 Some person who paid or received the register in Jliddlesex for the purjiose of 
 
 postage should be called. publication, the whole was evidence 
 
 (/i) Rexr. Watson, 1 Campb. 215 ;and sufficient for the jury to find a publica- 
 
 see Rex v. Middleton, 1 Str. 77. In the tion by the procurement of the defendant 
 
 case of Rex v. Johnson, 7 East, 65, the in Middlesex. 
 
 publisher of a public register received an (?) Case of the Seven Bishops, 12 St 
 
 anonymous li-tter, tendering certain poli- Tri. 183. 
 
 tical information on Irish alfaii'S, and re- (j) Rex v. Hunt, 2 Campb. 583. 
 
 quiring to know to whom letters should (k) Rex v. Williams, 2 Campb. 646, 
 
 be directed, to which an answer was re- Lawi-ence, J., Rex v. Knell, 1 Barnard, 
 
 turned in the register, after which he 305. 
 received two letters in the same hand- [I) Kex v. Peltier, Selw. X. P. 1048.
 
 CHAP. III. § XIII.] Evidence — Plea — Trial. 
 
 Where an information for libel stated that the prosecutor had 
 received certain anonymous letters, and that the defendant pub- 
 lished a libellous placard of and concerning those letters, and the 
 placard asked, ' Were you not warned that your character was at 
 stake ? ' and the prosecutor stated that he should not have under- 
 stood the meaning of the placard if he had not also seen the letters, 
 and that he understood the passage in the placard to allude to the 
 letters, it was held that the letters were admissible without proving 
 who wrote or sent them, as the placard referred to them, and 
 would not be intelligible without them, and that a defendant, who 
 refers to other papers in his publication, must submit to have them 
 read as explanatory of such publication, {m) 
 
 Depositions taken before a magistrate were not evidence upon a 
 trial for a libel, under the 1 & 2 Ph. & M. c. 13, and 2 & 3 Ph. & M. 
 c. 10, {n) which extended only to cases of felony, (o) But as the 
 11 & 12 Vict. c. 42, extends to misdemeanors, it should seem that 
 such depositions would now be evidence, {oo) A Gazette is evidence 
 to prove an averment in an information for a libel, ' that divers 
 addresses, &c., had been presented to his Majesty by divers of his 
 loving subjects.' (p) The King's procla'niation, reciting that it 
 had been represented that certain outrages had been committed 
 in different parts of certain counties, and offering a reward for the 
 discovery and apprehension of offenders, had been held admissible 
 evidence to prove an introductory averment, in an information for 
 a libel, that divers acts of outrage had been committed in those 
 parts, {q) And a preamble to an Act of Parliament, reciting the 
 existence of such outrages, and making provision against them, was 
 also held to be admissible for the same purpose, (r) 
 
 The criminal intention of the defendant will be matter of infer- 
 ence from the nature of the publication. Where a libellous publi- 
 cation appears, unexplained by any evidence, the jury should judge 
 from the overt act ; and, where the publication contains a charge 
 slanderous in its nature, should from thence infer that the inten- 
 tion was malicious, (s) It is a general rule that an act unlawful in 
 itself, and injurious to another, is considered both in law and 
 reason to be done malo anhno towards the person injured ; and 
 this is all that is meant by a charge of malice in a declaration for 
 libel, which is introduced rather to exclude the supposition that 
 the publication may have been made on some innocent occasion 
 than for any other purpose, (t) The intention may be collected 
 from the libel, unless the mode of publication, or other circum- 
 stances, explain it : and the publisher must be presumed to intend 
 what the publication is likely to produce ; so that if it is likely to 
 excite sedition, he must be presumed to have intended that it 
 should have that effect, {it) Publishing what is a libel without 
 excuse is indictable, though the publisher be free from what in 
 
 221 
 
 Depositions, a 
 Gazette, tlie 
 King's procla- 
 mation, and a 
 preamble to an 
 Act of Parlia- 
 ment, are 
 evidence for 
 certain pur- 
 Ijoses. 
 
 Criminal in- 
 tention of the 
 defendant. 
 
 (w) Rex v. Slanev, 5 C. & P. 213, T.ord 
 Tentenloii, C. J. 
 
 {n) Repealed by 7 Geo. 4, c. 64, s. 33. 
 
 (o) Rex V. Paine, 5 Mod. 163. 
 
 {oo) See })ost, Eridcmic. 
 
 ( p) Rex V. Holt, 5 T. R. 436. 
 
 (q) Rex V. Sutton, 4 M. & S. 532. 
 
 (r) I<1. ibid. 
 
 (.s) By Lord Kenyoii, (A J., iu Rux v. 
 
 Tiord Abinf,'don, 1 E-sp. 228. And sec 
 Rex r. Toi.hani, 4 T. R. 127, and Rex v. 
 Woodfall, 5 Burr. 2667. Stuart v. Lovel, 
 2 Stark. R. 03. 
 
 (0 Per Lord Tenterdeii, C. .T., Huncan 
 V. Thwaites, 3 B. & C. 5S4, .'iS.'.. 
 
 (») Rex V. Burdett, 4 B. & .\. H.''.. 
 Rcj,'. V. Lovctt, 9 C. & P. 462, Littlo- 
 dale, J.
 
 222 Of Libel, &c. [book V. 
 
 coininon piirliincc! is ciillud malice; for defaming wilfully witliout 
 excuse; is in law malicious. And oven if it could be an excuse, that 
 the puhlisher held what he pu])lish(!d to be true, it is not so if he 
 professes to publish it from authority. A newspaper contained this 
 }iara<^naph : ' the malady under which his Majesty labours is of an 
 alarmiuf^ nature (moaniiiLC insanity) ; it is from authority we speak.' 
 At the trial of the indictment for this publication, the jury asked 
 if a malicious intention were necessary to constitute a libel ; to 
 which Abbott, C. J., answered, that a man jnust have intended to 
 do what his act was calculated to effect ; and the jury found the 
 defendant guilty. Upon a motion for a new trial it was admitted 
 that the paragraph was libellous, but it was urged that malice was 
 essential to make the defendant criminal ; that he believed the 
 King to have been so afflicted, and that the answer to the f|uestion 
 by the jury was incorrect. But the Court thought otherwise, as 
 the defendant must know if he spoke from autliority, and could 
 have proved it : and if malice were a question of fact, a man must 
 be presumed to have intended to produce the effect which his act 
 Avill naturally produce ; and libelling without excuse is legal 
 malice, (y) A person who publishes matter injurious to the cha- 
 racter of another must be considered, in point of law, to have 
 intended the consequences resulting from that act, {v)) for every 
 man must bo presumed to intend the natural and ordinary conse- 
 quences of his own act. {x) The judge, therefore, ought not to 
 leave it as a question to the jury, whether the defendant intended 
 to injure the person libelled, but whether the tendency of the pub- 
 lication was injurious to such person. (?/) In some cases, however, 
 the paper or other matter may be libellous only with reference to 
 circumstances which should be laid before the jury by evidence. 
 Other libels to In order to show the existence of actual malice in the mind of the 
 prove actual writer of a libel, other libels by him, whether written previously or 
 "^" ^^^' subsequentl}'', are admissible in evidence, {z) Where the House of 
 
 Lords asked the judges 'in an action for libel, when the plea of the 
 general issue is pleaded, and also a plea under the 6 iV: 7 Vict. c. 96, 
 s. 1, denying actual malice, and stating the publication of an 
 apology set forth in the plea, is it admissible upon a trial for the 
 plaintiff to give evidence of other publications by the defendant 
 (some of them more than six years before the publication com- 
 plained of) of and concerning the plaintiff, in order to prove malice 
 against the defendant?' the judges answered, 'We are all of 
 opinion that, under such a plea, the publication of the previous 
 libels on the plaintiff b}' the defendant is admissible evidence to 
 show that the defendant wrote the libel in question Avith actual 
 malice against the plaintiff. A long practice of libelling the plain- 
 tiff may show in the most satisfactory manner that the defendant 
 was actuated by malice in the particular publication, and that it 
 did not take place through carelessness or inadvertence ; and the 
 more the evidence approaches to the proof of a systematic j^ractice, 
 the more convincing it is. The circumstance that the other libels 
 
 (r) Eex V. Harve)', 2 B. & C. 257. (y) Haire v. Wilson, supra. 
 
 \w) Per Lord Teutcrden, C. J, Fisher (:) Pearson r. Lemaitre, 5 M. k G. 
 
 V. Clement, 10 B. .<: C. 472. 700. Uarby v. Ouseley, 1 H. & X. 1 : 
 
 (>•) Per Lord Tenterden, C. J. Haire v. Stuart v. Lovel, 2 Stark. R4?p. 93. 
 "Wilson, 9 B. & C. G43, 4 M. & K. 605.
 
 CHAP. III. § XIII.] Evidence — Plea — Trial. 
 
 are more or less frequent, or more or less remote from the time of 
 the publication of that in question, merely affects the weioht, not 
 the admissibility of the evidence.' Aud the House of Lords held 
 accordingly, (a) 
 
 Where an information for libel alleged that a person unkno^Yn 
 murdered E. Grimwood, and that one Hubbard had been arrested 
 on the charge of committing the murder and discharged, and the 
 libel set out spoke of ' the acquittal of Hubbard for the murder of 
 E. Grimwood ; ' it was held that the inducement was proved by 
 evidence that a person had been murdered, and that Hubbard had 
 been charged with the murder and afterwards discharged, and that 
 at the inquest held on the body witnesses called the deceased by 
 the name of E. Grimwood, and that this last fact might be proved 
 by the coroner, and that he might for this purpose use an inquisi- 
 tion drawn up on paper. (6) 
 
 Where a declaration for libel set out the following passao-e : ' We 
 would suggest to the ex-Duke of Brunswick the propriety of with- 
 drawing into his own natural and sinister obscurity ' (meanino' 
 thereby to insinuate that the plaintiff was guilty of unnatural 
 practices). Lord Campbell, C. J., refused to permit a witness to be 
 asked if he had read the libel, and what he understood by the 
 word ' natural ' printed in italics, as it was for the jury to form 
 their own opinion as to what was meant by the word so printed, (c) 
 
 In an action for libel it appeared that the plaintiff, an attorney, 
 was employed by one Nash to bring an action against an executor • 
 and that the defendant, who was employed to adjust the executor's 
 accounts, finding that an action was about to be commenced 
 against the executor, wrote a letter to Nash blamino- him for 
 allowing the plaintiff to sue, and containing this passao-e, ' If you 
 will be misled by an attorney, who only considers his own interest 
 you will have to repent it ; you may think when you have 
 once ordered your attorney to write to Mr. G., he would not do 
 any more without your further orders ; but if you once set him 
 about it, he will go any length without further orders.' And it 
 was held that the question whether this letter aj)plied to the 
 plaintiff individually, or to the profession at large, was jDroperly 
 left to the jury, (d) 
 
 The evidence for the defence will now depend upon the de- 
 fendant's pleas ; if he plead that the libellous matter is true and 
 that it was published for the public benefit, it will lie upon him to 
 prove these facts ; but if he plead not guilty only, then the 
 evidence which can be adduced on his behalf at the trial will in 
 general be confined to a very narrow compass. There may, how- 
 ever, be cases of a publication in point of law, where no criminal 
 intention can be imputed to the party ; as where a person delivers 
 a letter without knowing its contents, or delivers one paper 
 instead of another ; (e) and evidence to such effect may be pro- 
 duced. Where, therefore, an action was brought against the porter 
 of a coach for a libel contained in a hand-bill, wliicli he had de- 
 
 223 
 
 See 
 346 
 
 {a) Barrett v. Long, 3 H. L. C. 395. 
 e Hemmings v. Gasson, E. B. & E. 
 
 (b) Ke". V. Gregory, 8 Q. B. 508. 
 
 (c) T)\xke of Brmiswiek v. Harmer, 
 
 3 C. & K. 10. 
 
 {(l) Ooilson r. Home, 3 Moore, 223. 
 
 (') By J.oril Kciiyon, C;. J., in Rex v. 
 Tophain, 4 T. R. 127, 128. Kex v. 
 Nutt, Fitz. 47. 
 
 Evidence of a 
 murder, &c. 
 
 The meaning 
 of a word in 
 italics is for 
 the jury. 
 
 To whom a 
 letter applies. 
 
 Defendant's 
 evidence.
 
 221 
 
 Of Lihcl, (ice. 
 
 [iJOOK V. 
 
 Proof of tlio 
 truth of a 
 triatilo ollenco 
 is iiiadiiiis- 
 bible. 
 
 Verdict. 
 The jury may 
 give a general 
 verdict uijon 
 the whole 
 matter put in 
 issue. 
 
 livcrod lied up in a papor parcel, evidence was admitted tliat he 
 delivered the i)arcel in the C(jMr.s(j oi his husiness without any 
 kno\Wed^'c of its contents. (/) Jiut it is not coin])etent to the de- 
 fendanf to j)rove that a paper similar io that, for the puhlicatiori 
 of which Ih! is prosecuted, was puljlished on a former occasion by 
 other persons, who have never Leen prosecuted for it. (fj) It wa« 
 held, in a case where the supposed libel was contained in a new.s- 
 paper, that the defendant had a ri<,dit to liave read in evidence any 
 extract from the same paper, connected with the subject of the 
 passage charged as libellous, althoui,di disjointed from it by ex- 
 traneous matter, and printed in a different character. (A) Though 
 the defendant cannot have the assistance of counsel to examine 
 the witnesses, and reserve to liimself the right of addressing the 
 jury, yet if he conducts his defence himself, and any point of law 
 arises which he professes himself unable to argue, the Court will 
 hear this argued by liis counsel, (i) 
 
 If a libel imputes to a man a triable offence, proof of the truth 
 of such imputation is inadmissible under a plea of not guilty. 
 Where a libel imputed murder to certain soldiers, evidence was 
 offered of the truth of such imputation, and rejected : and the 
 Court of King's Bench were nnanimous that such evidence was 
 rightly rejected, {j) 
 
 Wlicre an information for a libel states that certain transactions 
 took place, and that the libel was published of and concerning 
 them, and then sets out the libel as referring to them, and general 
 evidence is given in proof of such transactions on the part of the 
 prosecution, the defendant cannot, therefore, give evidence of the 
 particular nature of those transactions so as to bring into issue the 
 truth or falsehood of the libel. But if such evidence were adduced, 
 hondjide, to show that the transactions referred to in the alleged 
 libel are not the same with those which the information supposes 
 it to have had in view, it is admissible. (/>;) 
 
 It had been held in many cases, that, on trials for libels, the facts 
 of writing, printing, or publishing, and the truth of the innuendos 
 inserted in the proceedings, were the only matters to be submitted 
 to the coasideration of the jury : but the justice of such doctrine 
 being questioned and ably arraigned, (/) the 32 Geo. 3, c. GO (Fox's 
 Act), was passed, sec. 1 of which enacts ' that on every such trial, 
 the jury sworn to try the issue may give a general verdict of g^jilty 
 or not guilty, upon the whole matter put in issue upon such in- 
 dictment or information ; and shall not be required or dii'ected, by 
 
 (/) Day I". Bream, 2 M. & Eob. 54. 
 Patteson, J., who said ' primd facie he 
 was answerable, he had in fact delivered 
 and put into publication the libel com- 
 plained of, and was therefore called upon 
 to show his ignorance of the contents.' 
 
 (7) Rex ». 'Holt, 5T. R. 436. 
 
 (h) Rex r. Lambert, 2 Campb. 39S. 
 
 (i) Rexr. White, 3 Campb. 98. 
 
 (j) Rexr. Burdett, 4 B. & A. 95. 'In 
 some cases, indeed, it is possible that 
 the falsehood may be of the veiy essence 
 of the libel. As for instance, suppose a 
 paper were to state that A. was on a 
 given day tried at a given place, and 
 convicted of perjury ; if that be true it 
 mav be no libel, but if false, it is from 
 
 beginning to end calumnious, and may 
 no doubt be the subject of a criminal 
 prosecution. Possibly, therefore, in such 
 a case, evidence of the truth of such a 
 statement by the production of the re- 
 cord, might afford an answer to a prose- 
 cution for libel. Ibid, per Bavley, J., 
 p. 147. Reg. V. Brigstock, 6* C' & P. 
 184. Seo 2)ost, where the defendant 
 may plead that the libellous matters are 
 true. 
 
 (k) Rex V. Grant, 5 B. & Ad. 1081. 
 
 (7) See the celebrated speeches of Jlr. 
 Erskine, in the case of the Dean of St. 
 Asaph, RidgAvnv'< c.l. pp. 234, 264, 
 vol. 1.
 
 CHAP. III.] Punishment. 
 
 the Court or judge before whom such indictment or information 
 shall be tried, to find the defendants or defendant guilty, merely 
 on the proof of the publication by such defendant or defendants of 
 the paper charged to be a Hbel, and of the sense ascribed to the 
 same in such indictment or information.' By sec. 2, 'the Court, 
 or judge before whom such indictment or information shall be 
 tried, shall according to their or his discretion, give their or his 
 opinion and directions to the jury, on the matter in issue between 
 the King and the defendant or defendants, in like manner as in 
 other criminal cases.' {ni) 
 
 In criminal cases the judge is to define the crime, and the jury 
 are to find whether the party has committed that offence ; this 
 Act made it the same in cases of libel, the practice having been 
 otherwise before, {n) It has been the course for a long time for 
 a judge in cases of libel, as in other cases of a criminal nature, first 
 to give a legal definition of the offence, and then to leave it to the 
 jury to say, whether the facts necessary to constitute that offence 
 are proved to their satisfaction ; and that, whether the libel is the 
 subject of a criminal prosecution or civil action. Whether the 
 particular publication, the subject of inquiry, is calculated to in- 
 jure the reputation of another, by exposing him to hatred, con- 
 tempt, or ridicule, is a question upon which a jury is to exercise 
 their judgment, and pronounce their opinion as a question of fact. 
 The judge, as a matter of advice to them in deciding that question, 
 may give his own opinion as to the nature of the publication, but 
 is not bound to do so. (o) 
 
 The judgment in cases of libel at common law is in the discre- 
 tion of the Court, as in most other cases of misdemeanors ; and 
 usually consists of fine, imprisonment, and the finding sureties to 
 keep the peace. {f>) Judgment was given on each of four counts of 
 an information that the defendant be imprisoned ou the first count 
 ' for the space of two months now next ensuing ; ' on the second 
 count, ' for the further space of two months, to be computed from 
 and after the end and expiration of his imprisonment ' for the 
 offence mentioned in the first count ; on the third count, fur the 
 further space of two months, to be computed in like manner from 
 the end of the imprisonment on the second count ; and on the 
 fourth count, for the further space of two months, to be computed 
 in like manner from the end of the imprisonment on the third count. 
 The third count was adjudged on error to be insufiicient : but it 
 was held, that the sentence on the fourth count was not thereby 
 invalidated, and that the imprisonment on it was to be computed 
 from the end of the imprisonment on the second count, {q) 
 
 In the case of a blasphemous or seditious libel, the (iO Geo. 3, 
 &i 1 Geo. 4, c. 8, s. 4, made a second offence punishable by banish- 
 
 225 
 
 (m) Sue. 3 ]ii'oviilrs tliiit llic jury may 
 find a special vciJiit, iu their discretion, 
 as in other criminal cases. And sec. 4, 
 that defendants may move in arrest of 
 judgment as before tlie passing of the 
 Act. 
 
 {ii) Per Parke, V>. Parmiter v. Coup- 
 land, 6 M. & W. 105 ; Jenner v. A! 
 Beckett, 41 L. J. Q. li. 14. 
 
 (o) Parmiter r. Coupland, .s^^^^ra, Bay- 
 lis V. Lawrence, 11 A. & Ii. 020. Paris 
 VOL. in. 
 
 V. Levy, 9 C. 15. ^N. S.) 312 ; Kox v. 
 Burdett. 4 B. & A. 95 ; Fray r. Frav, 
 34 L. J. V. P. 45. 
 
 (?)) 1 Hawk. P. C. 0. 73, s. 21. ]5ac. 
 Abr. ixt. Libd{L\) Ke.\ r. Middletou, 
 Port. 201. Peg. V. Dunn, 12 Q. W. 1(>26. 
 As to the punislmicut of h'asing-making, 
 sedition and bLasidiemy in Scotland, see 
 6 Geo. 4, c. 47. 
 
 {q) Gregory v. Peg. 15 Q. B. 974. 
 
 The judge 
 not bound 
 under this Act 
 to state whe- 
 ther in his 
 opinion the 
 writing i:5 a 
 libel, but he 
 may do so. 
 
 Judgment. 
 
 In ciscs of 
 bla.sphemi>ii.s 
 or seditious
 
 226 
 
 lilicl, n hccoikI 
 olTenro wn.s 
 ]iiiiiislii\l>lc liy 
 ixuii.sliiiioiit, 
 
 l)llt is liot HO 
 MOW. 
 
 riil'li.tliinjj or 
 tliiTiitciiiiij; to 
 ]iiiMiHli a lilii-l, 
 or projiosiiig to 
 nlistain fioiii 
 ji'ilili.vliiiif,' iiiij' 
 tiling witii 
 intent to ex- 
 tort money, 
 jiunisliiililc ]>y 
 iniiirlMinnicnt 
 .ind liurd 
 labour. 
 
 ()J Libel, &c. 
 
 [book v. 
 
 inoiit from llic Kinf,''H dominions, or such punishment as might be 
 inflict<'(l in cases of high misdemcanov ; l)ut the 11 Geo. 4 & 1 
 Will. 4, c. 7*i, s. 1, repealed * so much and sucli parts of tliat Act 
 as relate to the sentence of banislnnent for the second olTence ; ' 
 conse(|uently the common law punishment alone remains. (/■) 
 
 J\l()st important alterations were made in tlie law of libel by 
 Lord Cani|)i)eirs Act. By that Act, (.s) & 7 Vict. c. 90, s. 3, 
 ' If any person shall publish or threaten to publish any libel upon 
 any other person, or shall directly, or indirectly threaten to print 
 or publish, or shall directly or indirectly propose to abstain from 
 printing or ])ublishing, or shall directly or indirectly offer to pre- 
 vent the ])rinting or publishing, of any matter (t) or thing touch- 
 ing any other person, with intent to extort any money or security 
 for money, or any valuable thing from such or any other person, 
 or with intent to induce any person to confer or procure for any 
 person any appointment or office of profit or trust, every such 
 offender, on being convicted thereof, shall be liable to be im- 
 prisoned, Avitli or without hard labour, in the common gaol or 
 house of correction, for any term not exceeding three years : pro- 
 
 (?•) A certificate of everyindictment ami 
 conviction of any offender convicted of 
 liavinj; composed, &c., any blasphemous 
 or seditious libel, is, by sec. 2 of the for- 
 mer Act, to be given by the officer having 
 the custodj' of the records, \\\w\\ the re- 
 quest of tlie prosecutor on his Majesty's be- 
 half, to the Justices of assize, &c., where 
 such offender shall be indicted for any 
 second ollence, and is to be sufficient proof 
 of the conviction of such offender. And in 
 all cases in which any verdict or judgment 
 by default shall be had against any person 
 for publishing any blasphemous or sedi- 
 tious libel, the judge or court may make 
 an order for the seizure and carrying 
 away and detaining all copies of the libel 
 in the possession of the party, or of any 
 other person named in the order for his 
 use. See .sees. 1, 2, and also sec. 3, as to 
 Scotland. Sees. 8 and 9 provide for the 
 limitation of actions brought for anything 
 done in the execution of the Act. B}- sec. 
 10 the punishment of persons convicted 
 of libel in Scotland is not to be altered. 
 
 (s) Sec. 1, 'for the better protec- 
 tion of private character, and for more 
 effectually securing the liberty of the 
 press, and for better preventing abuses 
 in exercising the said libertj',' enacts, 
 ' that in any action for defamation it shall 
 be lawful for the defendant (after notice 
 in writing of liis intention so to do, duly 
 given to the plaintiff at the time of filing 
 or dplivcring the plea in such action), to 
 givein evidence, in mitigation of damages, 
 that he made or offered an apology to the 
 plaintiff for such defamation before the 
 comnuMicement of the action, or as soon 
 afterwards as he had an opportunity of 
 doing so, in ca.se the action shall have 
 been commenced before there was an 
 opportunity of making or offering such 
 apology. ' 
 
 Sec. 2. ' In an action for a libel con- 
 tnined in any public newspaper or other 
 
 periodical publication it shall be com- 
 petent to the defendant to jdead that 
 such libel was inserted in such news- 
 paper or other periodical publication 
 without actual malice, and without gross 
 negligence, and that before the commence- 
 ment of the action, or at the earliest op- 
 portunit}' afterwards, he inserted in such 
 newspaper or other periodical publication 
 a full apologj' for the said libel, or, if the 
 newspaper or periodical publication in 
 which the said libel appeared should be 
 ordinarily published at intervals exceed- 
 ing one week, had offered to publish the 
 said apologj' in any new.spaper or periodi- 
 cal publication to be selected by the 
 plaintiff in such action ; and that ever)' 
 such defendant .shall upon filing such plea 
 be at liberty to pay into court a sum of 
 money by May of amends for the injury 
 sustained by the publication of such libel, 
 and such payment into court shall be of 
 the same effect and be available in the 
 same manner and to the same extent, and 
 be subject to the same rules and regula- 
 tions as to payment of costs and the form 
 of pleading, except so far as regards the 
 pleading of the additional facts herein- 
 before required to be pleaded by such 
 defendant, as if actions for libel had not 
 been excepted from the personal actions 
 in which it is lawful to pay money into 
 court under an Act passed in the session 
 of Parliament held in the fourth year of 
 his late ilajesty, intituled ' An Act for the 
 further Amendment of the Law and the 
 better Advancement of Justice ; ' and 
 that to such plea to such action it shall 
 be competent to the plaintiff to reply 
 general! v. denving the whole of such 
 plea.' By the'S & 9 Vict. c. 75, s. 2, the 
 defendant is to pay money into court 
 when the plea is tiled ; and see 15 & 16 
 Vict. c. 76, s. 70. 
 (0 See E. v. Coghlan, i F. & F. 316.
 
 CHAP. iir.1 
 
 Lord Camj^hell's Act. 
 
 vided always, that nothing herein contained shall in any manner 
 alter or affect any law now in force in respect of the seading or 
 delivei'y of threatening letters or writings.' 
 
 Sec. 4. 'If any person shall maliciousl}^ publish any defamatory 
 libel knowing the same to be false, every such person, being con- 
 victed thereof, shall be liable to be imprisoned in the common 
 gaol or house of correction for any term not exceeding two years, 
 and to pay such fine as the Court shall award.' 
 
 Sec. 5. ' If any person shall maliciously publish any defamatory 
 libel, eveiy such person, being convicted thereof, shall be liable to 
 fine or imprisonment or both, as the Court may award, such im- 
 prisonment not to exceed the term of one year.' 
 
 Sec. 6. 'On the trial (^6) of any indictment or information for a 
 defamatory libel, the defendant having pleaded such plea as herein- 
 after mentioned, the truth of the matters charged may be inquired 
 into, but shall not amount to a defence, unless it was for the public 
 benefit that the said matters charged should be published ; and 
 that to entitle the defendant to give evidence of the truth of such 
 matters charged as a defence to such indictment or information it 
 shall be necessary for the defendant, in pleading to the said in- 
 dictment or information, to allege the truth of the said matters 
 charged in the manner now required in pleading a justification to 
 an action for defamation, and further to allege that it was for the 
 public benefit that the said matters charged should be published, 
 and the particular fact or facts by reason whereof it was for the 
 public benefit that the said matters charged should be published ; 
 to which plea the prosecutor shall be at liberty to reply generally, 
 denying the whole thereof; and that if after such plea the de- 
 fendant shall be convicted on such indictment or information it 
 shall be competent to the Court, in pronouncing sentence, to con- 
 sider whether the guilt of the defendant is aggravated or mitigated 
 by the said plea, and by the evidence given to prove or to disprove 
 the same : provided always, that the truth of the matters charged 
 in the alleged libel complained of by such indictment or informa- 
 tion shall in no case be inquired into without such plea of justifi- 
 cation : provided also that, in addition to such plea, it shall be 
 competent to the defendant to plead a plea of not guilty : provided 
 also, that nothing in this Act contained shall take away or preju- 
 dice any defence under the plea of not guilty which it is now com- 
 petent to the defendant to make under such plea to any action or 
 indictment or information for defamatory words or libel.' 
 
 Sec. 7. ' Whensoever, upon the trial of any indictment or infor- 
 mation for the publication of a libel, under the plea of not guilty, 
 evidence shall have been given which shall establish a presumptive 
 case of publication against the defendant by the act of any other 
 person by his authority, it shall be competent to such defendant to 
 prove that such publication was made without his authority, con- 
 sent, or knowledge, and that the said publication did not arise from 
 want of due care or caution on his part.' 
 
 Sec. 8. ' In the case of any indictment or information by a pri- 
 vate prosecutor for the publication of any defamatory libel, if 
 judgment shall be given for tlie defendant, he shall bo entitled to 
 
 227 
 
 False defama- 
 tory libel 
 punishable by 
 imprisonment 
 and tine ; 
 
 Malicious 
 defamatory 
 libel, by im- 
 prisonment or 
 fine. 
 
 Proceedings 
 upon the ti-ial 
 of nn indict- 
 ment or in- 
 formation for 
 a defamatory 
 Ubel. 
 
 Double plea. 
 
 Proviso as to 
 pica of not 
 guilty iu civil 
 and criminal 
 procce<lings. 
 
 Evidence to 
 rebut primd 
 facie ca.se of 
 publication by 
 an a^cnt. 
 
 In what cases 
 on prosecution 
 for private 
 libel, defond- 
 
 (li) See K. V. Towuseud, i F. & F. 1089.
 
 '223 
 
 ant or proHC- 
 ciitor Ih cn- 
 titkvl to roMts. 
 
 Oj /.I'hrl, &C. 
 
 [book v. 
 
 Interpretation 
 of Act. 
 
 Threatening 
 to publi.sli a 
 libel, &c. 
 
 A justitioation 
 cannot be 
 l)lcadcd to a 
 i^e^^itious libel. 
 
 Previous 
 libels by others 
 inaclinissible. 
 
 There can be 
 no partial 
 finding on a 
 plea of justifi- 
 cation. 
 
 The Court is 
 to consider ail 
 tlie fact.<! 
 proved for and 
 
 recover from the prosecutor tlic costs sustained Ly the said dc- 
 fendniit }»y reason of suoh indictment or information ; (v) and that 
 upon a s])cciMl ])h'n. of justification to such indictment or infor- 
 mation, if the issue l)e found for tlic prosecutor, he sliall be entitled 
 to recover from the (h'feiidant tlic costs sustained by tlie prose- 
 cuter by reason of such phja, sueli costs so to be recovered by tlie 
 defendant or prosecutor respectively to be taxed by the proper 
 officer of the Court before which the said indictment or information 
 is tried.' {iv) 
 
 Sec. 0. ' Wiierevei- threuL^hotit this Act, in describing the plaintiff 
 or the defendant, or the party affected or intended to be affected 
 by the offence, words are used importing the singidar number or 
 the mascidine gender only, yet they shall be understood to include 
 several })ersons as well as one person, and females as well as males, 
 unless when the nature of the provision or the context of the Act 
 shall exclude such construction,' 
 
 Where one count charged the defendants with offering to prevent 
 the publishing, and another with threatening to publish certain 
 matters of the prosecutor with intent to extort money, and the 
 defendants appeared to have attempted to obtain money from the 
 prosecutor by leading him to believe that an information for an 
 offence relating to the post-horse duties would be laid against him, 
 and that they would prevent it if he paid them a sum of money, 
 it was held that the evidence did not support the counts. (:/) 
 
 It has been held in Ireland that to an indictment for publishing 
 in a newspaper 'a certain false, defamatory, malicious, and seditious 
 libel ' concerning her Majesty's Government and the Parliament 
 of the United Kingdom, with intent to create disaffection and 
 hatred to her Majesty's Government and the Parliament, a special 
 plea of justification cannot be pleaded under the 6 & 7 Vict. c. 96, 
 s. 6. (?/) 
 
 Where to a criminal information for a libel the defendant pleaded 
 a justification, alleging that the imputations contained in tlie libel 
 were true, it was held that it was not competent to the defendant 
 to prove that imputations identical with those in the libel had been 
 I^reviously published in a book, {z) 
 
 Where a justification is pleaded under the 6 & 7 Vict. c. 96, s. 6, 
 to an information for a defamatory libel, and the libel contains 
 several distinct imputations, and the plea alleges the truth of all, 
 and is traversed generally, if the evidence fail as to anyone of them, 
 the verdict will be entered generally against the defendant. Where, 
 therefore, upon the trial of such an issue upon such a plea, evidence 
 was offei-ed in support of some only of the imputations, and the 
 jury found that only one of the imputations upon which evidence 
 was offered was proved, the verdict was entered for the Crown 
 generally ; as there can be no partial finding for a defendant on 
 the ground that a justification is partially established, {a) 
 
 By the express enactment that, wherever there is a conviction 
 after such a plea of justification 'the Court, in pronouncing sen- 
 tence,' shall ' consider whether the guilt of the defendant is aggra- 
 
 (v) Sec post, p. 229. 
 
 {w) yuch costs may be recoverod by 
 action, Hichardson v. "Willis, 8 L. K. Ex. 
 69 ; -12 L. J. K\. (JS. 
 
 (x) Reg. r. Yates, 6 Cox C. C. 441. 
 (V) Keg. V. Duffy, 2 Cox, C. C. 45. 
 (z) Reg. V. Newman, 1 E. & B. 268. 
 (a) Reg. r. Newman, 1 E. & B. 558.
 
 CHAP. III.] Lord CampbeUs Act. 229 
 
 vated or mitigated by the said plea, and by the evidence given to against a plea, 
 prove and disprove the same/ tiie Court is to consider the evidence "J^-' <'^PPprtion 
 on the one side and the other, and to form their own conclusion inent acconl- 
 whether it aggravates or mitigates the guilt of the defendant, and ingiy. 
 the}' are to apportion the punishment accordingly. The evidence, 
 as it appears on the notes of the judge who presided at the trial, 
 comes in place of affidavits in aggravation and mitigation of 
 punishment when sentence is to be pronounced, and by that 
 the sentence is to be regulated, and not by an};- declaration of the 
 jury as to the credit which they think ought to be given to the 
 witnesses. (6) 
 
 In such a case the defendant may, in mitigation of punishment, Affidavits in 
 show by affidavit that after the publication, but before pleading, ™it'g'ition of 
 information was given to him which, if true, would have supported ^^'^"'^ ^^^^ ' 
 an allegation in the plea, evidence having been given at the trial 
 to account for the non-production of proof, but no evidence in 
 support of the allegation itself (c) 
 
 A libel imported to be founded on certain newspaper reports, 
 and upon the foundation of those reports charged certain troops 
 with acts of murder : after conviction the defendant offered affi- 
 davits that the newspapers did contain those reports, and also other 
 affidavits that the facts were true. The former affidavits were re- 
 ceived, because they explained the situation in which the defendant 
 stood at the time he wrote the libel, and showed the impression 
 under which he wrote ; but the latter were rejected, because the 
 receiving them might deprive of a fair trial persons who might 
 afterwards be tried for the murders ; and if murders were com- 
 mitted, the proper course was to prosecute and bring to a fair trial, 
 not to libel and create an unfair prejudice, (d) 
 
 Where an indictment for a libel on the governor of a parish Costs, 
 workhouse was preferred by the direction and carried on at the 
 expense of the select vestry of the parish, and the defendant havino- 
 removed it into the King's Bench by certiorari was convicted, it 
 was held tliat the party libelled was not the ' party grieved' within 
 the 5 & G Will. & M. c. 11, s. 3, and, therefore, was not entitled to 
 costs, (e) 
 
 When a prosecutor or defendant is entitled to costs under Costs under 
 G & 7 Yict. c. 9G, s. 8, see ante, p. 227. On a criminal in- 6 and 7 Vict, 
 formation for libel the defendant, if he obtain a verdict, is ^" ^^' 
 entitled to costs under the G & 7 Vict. c. OG, s. 8, though he 
 has not pleaded a special plea under sec. G ; and the judge cannot 
 deprive him of costs by a ccrtihcate, the provision in the 4 & 5 
 Will. & M. c. 18, s. 2, on this head being superseded by the later 
 Act. (/) Upon the trial of a criminal information for a defa- 
 matory libel the defendant obtained a verdict, whereupon the 
 Master on taxation allowed him the costs which he had incurred in 
 showing cause unsuccessfull}' against the rule nisi for filing the 
 information under the above section 8: held by Mellor, J., and 
 Lush, J. (Blackburn, J., dub.), that the allowance was properly 
 made, {(j) The Court of Queen's Bench has no jurisdiction to 
 
 (6) Reg. V. Newman, 1 E. & B. 558. See Ecg. v. Hawdon, 3 P. & D. 44. 
 
 ((•) Ibid. (/) Kci,'. V. Latimer, 15 Q. B. 1077 ; 
 
 ((/) Kcx n Burdctt, 4 B. & A. 314. 20 L. J. Q. B. 12!). 
 
 (c) Kfx V. Dewhurst, 5 B. & Ad. 405. ((/) W. v. Steel, 45 L. J. M. C. 391,
 
 2;]0 Of Libel, &c. [book v. 
 
 direct tlic clovk of assize to review liis taxation of costs (under 
 the () Sc 7 Vict. (*. !)<>, s. 8) of an indictment for lihol tried on 
 the Crown sidi- iiinh r a commission of oyer and terminer. But, 
 p('rha[)s, one of the cDMimissioners under that commission might 
 do so, before that commission was superseded, (/t) 
 
 'V\\v. offence of libel is nc^t triable at Quarter Session, (5 & G Vict. 
 c. :3S, s. 1.) 
 
 (/t) Keg. V. Nowhouse, 1 Bail. C. K. 129; 22 L. J. Q. B. 127.
 
 231 
 
 CHAPTER THE FOURTH. 
 
 OF THREATS AND THREATENING LETTERS. 
 
 Threats at 
 common law. 
 
 It is said, that the dispersing of hills of onenace threatening 
 destruction to the hves or properties of those to whom they were 
 addressed, for the purpose of extorting money, is, at common law, 
 a high misdemeanor, punishable by fine and imprisonment, (a) 
 Threats directed against persons immediately under the protection 
 of a court are offences punishable by fine and imprisonment, as if 
 a man threaten hts adversary for suing him, a counsellor or attorney 
 for being employed against him, a juror for his verdict, or a gaoler 
 or other ministerial officer for keeping him in his custody, and 
 properly executing his duty, (h) And a precedent is given of an 
 indictment at common law against the attorney of a plaintiff in a 
 cause for writing a letter to the attorney of the defendant, who had 
 obtained a verdict on the evidence of his son, threatening to indict 
 the son for perjury unless the defendant gave up the benefit of the 
 verdict, (c) 
 
 But it was holden that threatening by letter or otherwise to put 
 in motion a prosecution by a public officer to recover penalties for 
 selling Fryars Balscun, without a stamp (which by the 42 Geo. 3, 
 c. 56, is prohibited to be vended without a stamped label), for the 
 purpose of obtaining money to stay the prosecution, was not such 
 a threat as a firm and prudent man might not be expected to 
 resist, and, therefore, was not in itself an indictable offence at 
 common laiu, although it was alleged that the money was ob- 
 tained, no reference being made to any statute which prohibits 
 such attempt. A count alleged that the defendant, intending to 
 abuse the laws for the protection of the revenue, sent the following 
 letter : — 
 
 ' Sirs, 
 ' I am applied to to prosecute an information against you for But where 
 selling certain medicines without stamps. I have told the parties *'\Vi'7.^*r 
 that all such informations must now be prosecuted by the public overcome a 
 officer, and have advised them to let me write to you on the sub- firm ami pm- 
 ject, and hear what you have to say. If I can be of any service to '3*^','.^"?,"' '* " 
 you in stopping them, you will write me accordingly, and I will got 
 the best terms I can.' Another count charged the defendant with 
 corruptly attem})ting to extort 10/. by threatening that a prosecu- 
 tion should be commenced for having sold Fryar's Ualsam without 
 a stamp. After argument in arrest of judgment, Lord EUenborough 
 
 Rex z'. South- 
 erton. 
 
 Threatening 
 to charge a 
 party with 
 penalties for 
 selling me- 
 dicines with- 
 out a stamp, 
 hoklcu not to 
 be indictable. 
 
 (a) 1 Hawk. P. C. c. 
 enoe is made to 1 Huli 
 reference. 
 
 .-)3, s. 1. Refer- 
 , 507, hni qic. the 
 
 (b) 4 Blac. ("oiii. 12(3. 
 
 (c) 2 C'liit. Criin. L. Ud.
 
 232 0/ Thrcals (ind Thrcatenimj Letters. [book v. 
 
 C. J., s.iiil, ' 'I'o oMuiii money iindor a tliroat of any kind, or to 
 attempt, to do it, is, no doubt, an immoral action ; Imt to make it 
 indictahle, llif (lni'.'it must he f>t" such a nature as is calculated to 
 overcome a firm and ])rudent man. Now, the threat used by the 
 defV'udant at its utmost extent was no more than that he would 
 charL,a' the party with certain penalties for selling medicines witli- 
 out a stamp. That is not such a threat as a firm and prudent man 
 mii;ht not, and ought not, to have resisted. Then what authority 
 is tlierc for considering those as offences at common law ? The 
 jirincipal case relied on is that o{ liexw. Woodward, (d) which was 
 wdicre the defendants, having another man in their actual custody 
 at the time, tlireatened to carry him to gaol, upon a charge of per- 
 jury ; and obtained money from him under that threat, in order to 
 permit his release. Was not that an actual duress, such as would 
 have avoidetl a bond given under the same circumstances ? But 
 that is very unlike the present case, which is that of a mere threat 
 to put process in a penal action in force against the party. The 
 law distinguishes between threats of actual violence against the 
 person, or such other threats as a man of common firmness cannot 
 stand against, and other sorts of threat.s. Money obtained in the 
 former cases, under the influence of such threats, may amount to 
 robbery ; but not so in cases of threats of other kinds. But this is a 
 case of threatening, and not of deceit ; and it must be a threat of such 
 a kind as will sustain an indictment at common law, either accord- 
 ing to one case, attended with duress, or, according to others, such 
 as may overcome the ordinary free will of a firm man, and induce 
 him from fear to part with his money. The present case is nothing 
 like any of those ; it is a mere threat to bring an action, which a 
 man of ordinary firmness might have resisted.' (e) 
 
 It appears that, according to the principles laid down in this 
 case, an indictment will lie, at common law, for extorting money 
 by actual duress, or by such threats as common firmness is not 
 capable of resisting. Therefore, where money is extorted from a 
 party by the threat of accusing him of an unnatural crime, and 
 from the circumstances of the case the offence does not amount to 
 robbery, (/) there seems no reason to doubt but that it is in- 
 dictable as a misdemeanor at common law. (g) 
 Offences by Demanding property with menaces, with intent to steal ; ac- 
 
 stotutes. cusing, or threatening to accuse of an infamous crime with an 
 
 intent to extort property, and by such accusation or threat ac- 
 tually extorting ; the sending or delivering of a threatening letter, 
 or writing to any person, thereby threatening to kill or murder, or 
 to burn or destroy, or thereby with menaces demanding property ; 
 accusing, or threatening to accuse, or sending or delivering a 
 letter, c^c, accusing or threatening to accuse of certain crimes 
 with intent to extort money, &c., are offences of the degree of 
 felony by the provisions of recent statutes. 
 Rending By the Offences against the Person Act, 24 & 25 Vict. c. 100, 
 
 Jj"*''"'' . ^ s. l(j, 'whosoever shall nnaUeiously send, deliver, or utter, or 
 murder. '"° directly or indirectly cause to be received, hioiving the contents 
 
 {(l) 11 Mod. 137, more fully stated iu (/) See vol. 2, p. 98, et aeq. 
 
 6 East, W. 133. (g) See a precedent in 3 Chit. Crim. L. 
 
 (<-) Kex r. Soutlierton, 6 East, K. 126. 841. 
 Aud see vol. 1, p. 295.
 
 CHAP. IV.] Of Threats and Threatening Letters. 
 
 thereof, any letter or writing threatening to kill or murder any 
 person, sliall be guilty of felony, and being convicted thereof shall 
 be liable, at the discretion of the Court, to be kept in penal ser- 
 vitude for any term not exceeding ten years and not less than 
 three Qi) years — 'Or to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without soli- 
 tary confinement, and, if a male under the age of sixteen years, 
 with or without whipping.' {i) 
 
 By the Malicious Injuries Act, 24 & 25 Vict. c. 97, s. 50, ' who- 
 soever shall send, deliver, or utter, or directly or indirectly cause 
 to he received, knoiuing the contents thereof, any letter or writing 
 threatening to burn or destroy any house, barn, or other building, liouses, build- 
 er any rick, or stack of grain, hay, or straw, or other agricultural ^^°^' ^^"i^^' 
 produce, or any grain, hay, or straiv or other agricidtand 'pro- 
 duce in or under any building, or any ship or vessel, or to kill, 
 n/iairn, or tuound any cattle, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the Court, to 
 be kept in penal servitude for any term not exceeding ten years 
 and not less than three (i) years — or to be imprisoned for any 
 term not exceeding two years, with or without hard labour, and 
 
 Sending 
 letters threat- 
 ening to burn 
 or destroy 
 
 (/(.) Not less than five years if the 
 ofl'eiice was committed after the 25th day 
 of July, 1864 ; see vol. 1, p. 73. 
 
 (i) This cLause is framed from the 4 
 Geo. 4, c. 54, s. 3, and 10 & 11 Vict. c. 
 06, s. 1. 
 
 The words ' directly or indirectly 
 cause to be received ' are taken from the 
 9 Geo. 4, c. 55, s. 8 (I), and introduced 
 here in order to prevent any difficulty 
 ■which miglit arise as to a case falling 
 within the words ' send, deliver, or 
 utter.' 
 
 The words of the 10 & 11 Vict. c. 66, s. 
 1, were 'if any person shall knowinj^ly 
 send or deliver or utter to any other per- 
 son,' and the words ' to any other person ' 
 were advisedly omitted, in order that 
 every sending, delivering, uttering, or 
 causing to be received may be included. 
 If, therefore, a person were to send a 
 letter or writing without any address by 
 a person, with directions to drop it in the 
 garden of a house in which several per- 
 sons lived, or if a person were to drop 
 such a letter or writing anywhere, these 
 cases would be within this clause. In 
 truth, the new clauses make the offence 
 to consist in sending, tlclivering, uttering, 
 or directly or indirectly causing to be 
 received any letter or writing, which 
 contains a threat to kill or murder any 
 person whatsoever, or to burn or de- 
 stroy any house, &c., whatsoever, or to 
 accuse any other person whatsoever of 
 any crime, and it is wholly immaterial 
 whether it be sent, &c., to any person or 
 not, or whether it be sent, &c., to the 
 ])erson threatened, or to any other per- 
 son. The cases, therefore, of Re.x v. 
 I'atldlc, H. & II. 484 ; Eeg. v. Burridge, 
 2 M. & Hob. 296 ; Keg. v. Jones, 2 ('. Sc 
 K. 398 ; 1 Den. C. C. K. 218 ; and l!eg. 
 V. Grimwade, 1 G. & K. 592 ; I Den. 
 
 C. C. R. 30, are not to be considered as 
 authorities on these clauses so far as they 
 decide that the letter must be sent, &c., 
 to the party threatened. 
 
 In every indictment on this and the 
 similar clauses in the other Acts, a count 
 should be inserted alleging that the de- 
 fendant uttered the writing without 
 stating any person to whom it was uttered. 
 Gounts for uttering forged instruments 
 never state the person to whom they were 
 uttered, and they show that such a count 
 on this clause would clearly be good. See 
 Elsworth's case, 2 East, P. G. c. 19, s. 
 59, p. 989, vol. 2, p. 707- 
 
 Tlie words of the 4 Geo. 4, c. 54, s. 3, 
 were 'any letter or writing with or with- 
 out any name or signature subscribed 
 thereto, or with a fictitious name or sig- 
 nature ;' but the words of the 10 & II 
 Vict. c. 66, s. 1, were 'any letter or 
 writing ' only, and the latter words are 
 used in this clause, and it is clear that 
 they are large enough to include any 
 writing whatsoever. 
 
 The word 'maliciously' was unneces- 
 sarily introduced in the committee of the 
 whole House of Gommons, and renders 
 this clause inconsistent with sec. 46 of 
 the Larceny Act, and sec. 50 of the Mali- 
 cious Injuries Act. 
 
 The4'(k'o. 4, c. 54, s. 3, and 10 & 11 
 Vict. 0. (J6, s. 1, used the terms, 'know- 
 ingly send,' &c. This was a clear in- 
 aciuracy ; for it would include every 
 ])erson who sent or delivered a letter, 
 though he were ignorant of its contents ; 
 'knowingly,' therefore, lias been omitted, 
 and ' knowing the contents thereof sub- 
 stituted, which really expresses the in- 
 tention of the clause. Sec Girdwood's 
 case, 1 Leach, 142, pos/, p. 240. 
 
 As to haiil labour, &c., see post, p. 
 236 ; vol. 1, pp. 80, 81. G. S. G.
 
 2ni 
 
 Letter 
 (Icinaiiiling 
 inonoy, &c., 
 witli luonaccs. 
 
 Peraanding 
 money, &c., 
 witli menaces, 
 or l>y force, 
 with intent to 
 steal. 
 
 Of Threats and Threatening Letters. [book v. 
 
 with or without solitary confinement, and, if a male under the 
 w^ii of sixteen years, with or without whijjping.' (^j 
 
 Jiy the Larceny Act, 24« i^:, 2.") Vict. c. 9(), s. 44, ' whosoever 
 siiall send, (kliver, or idler, or directly or indirectly cause to be 
 received, knoivliKj the contents thereof, any letter or writing de- 
 manding of any person with menaces, and without any reasonable 
 or probable cause, (k) any 2'>'^'0j)<^riy , chattel, money, valuable secu- 
 rity, i>r other viiluable thiiif/, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the Court, to 
 be kept in penal servitude for life, or for any term not less than 
 three (/) years — or to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement, and, if a male under the age of sixteen years, with or 
 Avithout whipping.' (7)i) 
 
 Sec. 45. ' Whosoever shall with menaces or by force demand any 
 property, c'Aa^^c'/, moncj/,v<iluaMe security, or other valuable thing 
 of any person, with intent to steal the same, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discre- 
 tion of the Court, to be kept in penal servitude for the term of 
 three {I) years — or to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without soli- 
 tary confinement.' {n) 
 
 As to hard labour, &c.* see j'osi, p. 236 ; 
 vol. 1, pp. 80, 81. 
 
 The prisoner was indicted under the 
 above 45th section, for feloniously de- 
 manding, with menaces, five shillings 
 from the prosecutor. The prisoner was 
 a policeman on duty in his uniform, and 
 the i)rosecutor proved that he was f;oing 
 home in the nij^ht, and had spoken to a 
 woman, wlieu the prisoner came up and 
 said, ' You have been talking to a prosti- 
 tute.' I said. ' I do not know who she 
 is or what she is.' He said, ' You must 
 go with me to Hotham Street, Bridewell.' 
 I said, ' I had the care of three horses, 
 and if he would go with me to my 
 master, and leave the keys, I would go 
 anywhere with him.' He said I was 
 under a penalty of II. and costs for 
 talking to a prostitute in the streets, and 
 that if 1 would give him 5s. I might go 
 about my business. He pulled out a 
 book to take my name. He asked my 
 name, and said he would write it down. 
 He did not write it down. He took the 
 book out before he mentioned the 55. I 
 pulled out a half-crown and two-shilling 
 piece, and he placed it in his riglu-hand 
 pocket. The prisoner afterwards said, 
 ' This is only a two-shilling piece ; I 
 must have the other sixpence. It was 
 objected, 1st, that as the money was ob- 
 tained, the case was not within the clause 
 of the statute ; 2nd, that this was not a 
 menace within the statute, as it was a 
 threat to accuse of a non-existing oflence ; 
 but, upon a case reserved, it was held, 
 1st, that the tirst objection was not cor- 
 rect, because part only of the 5s. demanded 
 was obtained ; and even if the whole had 
 been obtained, Reg. r. Xortou, 8 C. & P 
 671, showed that that made no differeuce ; 
 
 {j) This clause is taken from the 4 
 Geo. 4. c. 64, s. 3, and 10 & 11 Vict. c. 
 66, s. 1. 
 
 See the preceding note as to the first 
 two lines of this clause. 
 
 The clause is extended to letters 
 threatening to burn any gi'ain, hay, &c., 
 in or under any building, or to kill, 
 maim, or wound any cattle. In any in- 
 dictment under this section a count 
 should be inserted, alleging that the 
 prisoners littered the letter or writing 
 without stating to whom the same was 
 uttered. See the last note. 
 
 As to hard labour, &c., see post, p. 
 236 ; vol. 1, pp. 80, 81. 
 
 (k) R. V. Chalmers, 10 Cox, C. C. 
 450. 
 
 (I) Not less than five years if the 
 offence was committed after the 25th of 
 July, 1864 ; see vol. 1, p. 73. 
 
 (m) This clause is taken from the 7 & 
 8 Geo. 4, c. 29, s. 8, and 9 Geo. 4, c. 55, 
 s. 8 (I.). 
 
 The beginning of this clause is made 
 to correspond with the beginning of sec. 
 46, infra, of sec. 50 of the Malicious In- 
 juries Act, ante, p. 233, and of sec. 16 
 of the Oti'ences against the Person Act, 
 ante, p. 232, as all these sections contain 
 similar enactments. See the note, ante, 
 p. 233, for the observations on the be- 
 ginning of these clauses. 
 
 The alteration as to 'property, &c.,' 
 is made in order that this clause and ss. 
 45, 46, and 47 may correspond. 
 
 As to hard labour, &c., see post, 
 p. 236 : vol. 1, pp. SO, 81. 
 
 (n) This clause is taken from the 7 
 "Will. 4 & 1 Vict. c. 87, s. 7. 
 
 See the last note as to the words in 
 italics.
 
 CHAP. TV.] Of Threats and Threatening Letters. 
 
 Sec. 46, ' Whosoever shall send, deliver, or utter, or directly 
 or indirectly cause to be received, knoiving the contents thereof, any 
 letter or writing accusing or threatening to accuse any other per- 
 son of any crime punishable by law with death, o r ijenal servitude 
 for not less than seven years, or of any assault with intent to 
 commit any rape, or of any attempt or endeavour to commit any 
 rape, or of any infamous crime as hereinafter defined, with a view 
 or intent in any of such cases to extort or gain by means of such 
 letter or writing any property, chattel, money, valuable security 
 or other valuable thing, from any person, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of 
 the Court, to be kept in penal servitude for life, or for any term 
 not less than three (o) years — or to be imprisoned for any term not 
 exceeding two years, with or without hard labour, and with or 
 without solitary confinement, and, if a male under the age of six- 
 teen years, with or without whipping ; and the abominable 
 crime of buggery, committed either with mankind or with beast, 
 and every assault with intent to commit the said abominable crime, 
 and every attempt or endeavour to commit the said abominable 
 crime, and every solicitation, persuasion, promise, or threat offered 
 or made to any person whereby to move or induce such person to 
 commit or permit the said abominable crime, shall be deemed to 
 be an infamous crime within the meaning of this Act.' (jj) 
 
 Sec. 47. ' Whosoever shall accuse or tlireaten to accuse, either 
 the person to whom such accusation or threat shall be made or 
 any other person, of any of the infamous or other crimes lastly 
 hereinbefore mentioned, with the view or intent in any of the cases 
 last aforesaid to extort or gain from such person so accused or 
 threatened to be accused, or from any other (q) person, any pro- 
 perty, chattel, money, valuable security, or other valuable thing, 
 
 235 
 
 Letter threat- 
 ening to ac- 
 cuse of crime, 
 with intent to 
 extort. 
 
 'Infamous 
 crime ' de- 
 fined. 
 
 Accusing or 
 threatening to 
 accuse with 
 intent to 
 extort. 
 
 2n(l, that there was no ground for the 
 objection that this was not a menace, 
 because it was a threat to accuse of a 
 non-existing offence. If a jioliceman 
 states that he is acting under authority, 
 and that it is his intention to exercise the 
 authority whicli he i)rofesses to have 
 iuik;ss money is given to him, that is a 
 menace within the statute. The threat was 
 within the plain words of the statute. 
 Keg. V. Eobcrtson, 10 Cox, C. C. 9. Reg. 
 V. Walton, L. & C. 288, liad been relied 
 on for the prisoner, and tlie Court did not 
 express any api)roval of the judgment in 
 that case ; and the decision in this case 
 seems to bear against tliat judgment. 
 Rex V. Knewland being cited, Channell, 
 B. , said, ' This is a statutory offence. 
 The decision in that case was that the 
 facts did not support an indictment for 
 robbery at common law,' wluch is the 
 correct distinction. 
 
 (o) Not less than five years if the 
 od'ence was committed after the 2.'ith 
 July, 1864 ; see vol. 1, p. 73. 
 
 ip) This clause is taken from the 7 & 
 8 Geo. 4, c. 29, ss. 8, 9 ; 9 Goo. 4, c. 55, 
 ss. 8, 9, (I) : and 10 & 11 Vict. c. 0(3, 
 s. 1. 
 
 The beginning of thi.s clause is made 
 
 to correspond with the beginning of sec- 
 44, mite, p. 234, of sec. 50 of the j\Iali- 
 cious Injuries Act, ante, -p. 233, and of 
 sec. 16 of the Offences against the Person 
 Act, ante, p. 232, as all these sections 
 contain similar enactments, See the note, 
 ajite, p. 233, for the observations on the 
 beginning of these clauses. 
 
 As to hard labour, &c., see 2}osf, p. 
 236 ; vol. 1, pp. 80, 81. 
 
 (q) Prisoner went to a boy's father, and 
 saiil that the boy had committed an 
 abominable oHence upon a mare belong- 
 ing to him. The prisoner said that if the 
 father would not buy the mare of him 
 for ZI. 10s., ho would accuse the boy. 
 The prisoner also .said the .same to the 
 boy's master. Failing in his attempt so 
 to dispose of the mare, he iircferred the 
 charge against the boy, which was dis- 
 missed ; held that the prisoner was guilty 
 of threatening to accuse of an infamous 
 crime within this section. 11. v. Redman, 
 10 Cox, C. C. 159, 35 L. ,T. JI. C. 89. 
 On the trial of an indictment for threaten- 
 ing to accuse of an infamous crime in 
 order to extort money, the gviilt or in- 
 nocence of the party accused is immate- 
 rial. R. V. Crackneil, 10 Cox, C. C. 408 ; 
 K. V. Richards, 11 Cox, C. C. 43.
 
 2'M'y 
 
 ItnniHtcriiil 
 from wliDiii tlic 
 iiicnaces pro- 
 ceed. 
 
 Principals ia 
 the sccuikI 
 degree and 
 accessories. 
 
 Offences com- 
 mitted within 
 the jurisdiction 
 of the Ad- 
 miralty. 
 
 Fines and 
 sureties. 
 
 Hard labour. 
 
 Solitary con- 
 finement. 
 Whipping. 
 
 0/ Threats and Threatening Letters. [book v. 
 
 sliall ])(• f,niiltv of felony, and boinjT convicted thereof sliall be 
 lial)le, at i\\r (li.scrotion iA' the (y'ourl, to Ix; kc[)t in pcnial .servitude 
 U)r life, or for any teim imt less than three (qfj) years — or to he im- 
 prisoned for any term not exceeding two years, with or without 
 iiard lahdiii-, and, if a male under the age of sixteen yearH, with or 
 without whipping.' (r) 
 
 As to inducing a person hy threats to execute deed.s, &c., with 
 intent to defraud, see sec. -l-iS, vol. ii. p. SI. 
 
 Sec. 4i). ' It shall be immaterial whether the menaces or threat.s 
 hereinbefore mentioned be of violence, injury, or accusation to be 
 caused or made by the offender or by any other person. («) 
 
 As to the punishment of principals in the second degree, acces- 
 sories, and aiders and abettors, see sec. .98, vol. i., p. 18.5. 
 
 As to offences committed within the jurisdiction of the A<lmi- 
 ralty, see sec. llo, vol. i. p. 14. 
 
 As to fining the offender, and re([niring him to enter into his 
 own recognizances, and to find sureties for keeping the peace, &c., 
 see sec. 117, vol. i. p. 81. 
 
 As to hard labour, &c., see sec. 118, vol. i. p. 80. 
 
 As to solitary confinement, whipping, &c., see sec. 119, vol. i., p. 80. 
 
 None of these Acts extend to Scotland, 
 
 As to intimidating a person with a view to compel him to ab- 
 stain from doing or to do any act which he has a legal right to do 
 or abstain from doing, see the Conspiracy and Protection of 
 Property Act, 1875, sec. 7, ante, p. 162. 
 
 Some of the cases decided upon the repealed Acts may assist in 
 the construction of the present statutes. 
 
 As to the 
 denunid within 
 the repealed 
 clause of the 
 9 Geo. 1, 
 c. 22. 
 
 Cases on Repealed Statutes. 
 
 The construction of the 9 Geo. 1, c. 22, was much considered, in 
 a case where the prisoner, Michael Robinson, was indicted for send- 
 ing the following letter, dated, &c., without any name subscribed 
 thereto, to one, J. 0. Oldham, deman<ling of him a certain valuable 
 thing, namely, a bank note, against the form of the statute : — 
 
 'Sir, 
 ' I am well pleased to find that I am not likely to be mistaken 
 in the idea I have entertained of 3-ou amongst men of a proper 
 and liberal way of thinking : an understanding on such a matter 
 as this is the easiest thing imaginable, and in repeating that you 
 will find me a gentleman, I Avish you to be satisfied that I am as 
 incapable of taking any unmanly advantage as of wantonly sport- 
 ing with the feelings of any one ; I have ever despised and exe- 
 crated the cowardly assassin, who, skulking in obscurity, sends 
 forth his malignant shafts to wound the peace and the character of 
 individuals; and I have, therefore, uniformly resisted every over- 
 ture that has been made me for such a purpose. My situation as 
 
 (qq) Not less than five years if the 
 ofTeuce was committed after the 25th of 
 July, 1864 ; see vol. 1, p. 73. 
 
 (r) This clause is taken from the 7 & S 
 Geo. 4, c. 29, s. 8 ; 9 Goo. 4, c. 55, s. 8 
 (I) ; 7 Will. 4 & 1 Viet. c. 87, s. 4 ; and 
 10 &11 Vict. c. 66, s. 2. 
 
 As to hard labour, &c , see /71/rrt ; 
 
 vol. 1, pp. SO, 81. 
 
 (s) This clause is new. It is intended 
 to meet cases where a letter may be sent 
 by one person and may contain menaces 
 of injury by another, and to remove the 
 doubts occasioned by Rex v. Pickford, 4 
 C. & P. 227, and see Keg. r. Smith, 1 
 Den. U. C. 510, post, p. 243.
 
 CHAP. IV.] Of Threats and Threatening Letters. 237 
 
 a literary character has teemed with temptations, but a sacred 
 principle of honour has superseded them all. The subject on which 
 I have addressed you has long lain dormant, and it was because I 
 thought the attack of a most serious complexion that I hesitated 
 for such a length of time in giving any countenance to it ; not 
 that I ever sought for any circumstance to influence my judgment 
 or qualify my opinion, and, for all that has ever come to my know- 
 ledge, it maybe all the moonshine of the moment : I am, therefore, 
 so far candid, and I trust, not indelicate ; and it will at least be a 
 satisfaction to you to be told, with a solemnity becoming the 
 character I have professed myself, that not a soul but myself is in 
 possession of a line of the MS., nor has it ever been out of my 
 hands, or perused or heard by any person living since first I had 
 it ; so that when it is committed to the flames all will necessarily 
 die with it. Of this you shall have a testimony so clear and un- 
 equivocal that it will not be possible for you afterwards to doubt. 
 Thus much I have suggested for your satisfaction ; you will now 
 give me leave to say something on behalf of the cause I have 
 engaged in. I have not the least objection to an interview, and I 
 readily close with your proposition ; but there are a few prelimi- 
 naries which I must first beg leave to adjust. Perhaps I may be 
 more anxious to urge them, in order to have some proof of your 
 sincerity, after which I am at your service. In order to relieve a 
 destitute and unhappy family, struggling with sickness and sorrow, 
 you will permit me to be your almoner. Will you enable me to 
 dispose of a little of your money, as I shall see occasion ? It is a 
 duty I owe to the cause of humanity to urge it. Remember, sir, 
 I am now only making my appeal to your benevolence. I am hold- 
 ing out no delusions to exact the involuntary tribute. I am asking 
 you as a gentleman, as a man, to give me some earnest of your 
 intention to prove what I am so strongly inclined to give you 
 credit for. Inclose a bank-note in a letter addressed to R. R., and 
 let it be left at the Cambridge coffee-house, the top of Newman- 
 street, in Goodge-street, on tlie side of the bar. At the entrance 
 of the coffee-room is a bracket for letters ; let it be placed there 
 between the hours of eleven and one, on Thursday next ; and at 
 five o'clock on the same day a line shall be sent by a porter to 
 your house to acknowledge the receipt ; after which, if you will 
 name any day (Friday excepted) in the following week on which 
 it will suit you, in the evening, to take a bottle of Avine at the 
 King's-head tavern, in Middle-row, Holborn, or elsewhere, I will 
 with pleasure attend you. Our meeting, however, is to be private 
 and tete-a-icte. Thus, possibly, over the ashes of the MS. a 
 phcenix may arise that may prove the forerunner to friendship. I 
 shall send to the coffee-house between the hours of one and four, 
 and I will venture to say that you will have no reason to be dis- 
 satisfied with the event of this correspondence. To obtain con- 
 fidence it is necessary, or at least reasonable, to expect that one 
 should be reposed. ' I have the honour to remain. Sir, 
 
 'Your obedient humble servant, 
 ' Tuesday, 12th January, 1796. ' R. R. 
 
 ' J. 0. Oldham, Esq., 
 ' Brook-street, 
 ' (Private.) Holborn.'
 
 Other It'ttcrH 
 rcooivcil ill 
 cviilonrc to 
 exi)liiin tho 
 letter on wliicli 
 the indictiiieiit 
 wiis foiiiuleil. 
 
 238 Of Threats and Threatening Letters. [book v. 
 
 Tlio prnsociitor liad served an apprciitioesliip witli a person 
 named Dolly, by wlioin lie was afterwards taken into partnership ; 
 u|)nii holly's death a report was spread tliat the prosecutor had 
 been the author of his death, U))ou which he brought an action 
 a<Minst two persons, and had judLfineiit a<,Minst them. Before the 
 letter in (piestion was sent, several other hitters had been written 
 by the prisoner to the prosecutor, to which he returned answers, 
 for the purpose of obtaining information of the prisoner's place of 
 abode, in order to bring him to justice. And all these letters were 
 read in evidence, as serving to explain the letter upon wbich the 
 prisoner was indicted. It was intimated in them that another 
 person, who was a friend of the prisoner's, and who was in distres.s, 
 had put certain ^I8S. into his hands, containing a charge of the 
 prosecutor having murdered his former master, Dolly, and after- 
 wards married the widow, his accomplice ; but that the prisoner 
 was unwilling to publish the MSS. containing so serious a charge 
 without giving a previous intimation to the prosecutor, and hearing 
 what he had to propose upon the subject. A subsequent corre- 
 spondence between the prosecutor and the prisoner was also given 
 in evidence ; in the course of which the prisoner communicated a 
 few pages of the supposed MSS. in verse, from which the charge 
 
 Direction to alluded to was to be plainly inferred. Upon this evidence the 
 
 the jury. learned judge before whom the prisoner was tried left the case to 
 
 the jury to say whether the prisoner sent the letter above set 
 forth, and whether it contained a threat to publish a libel on the 
 prosecutor, imputing to him the death of Dolly, unless he Avould 
 send the prisoner a bank note ; and in case they were of that 
 opinion they were directed to find the prisoner guilty. The jury 
 found him guilty, and also found specially that the prisoner sent 
 the letter in the indictment, and that it contained a threat to pub- 
 lish a libel, imputing to the prosecutor the murder of his master. 
 
 Objections. in order to extort money from him. Several objections were taken 
 to this conviction, and amongst others it was objected that the 
 letter did not contain a tJirecit or demand, so as to bring the case 
 within the 9 Geo. 1, c. 22. But the judges, after hearing the 
 point argued, all agreed in overruling the objection. Buller, J., 
 in delivering their opinion, after adverting to the preamble of the 
 statute (upon which the counsel for the prisoner had founded his 
 argument, by contending that it necessarily so far restrained the 
 enacting clause that the demand contained in a letter must be 
 subscribed and peremptorily accompanied with a threat of bodily 
 
 Judgment. harm), said : — ' Where the enacting clause of a statute refers to 
 such oftences only as are contained in the preamble, it may be re- 
 strained by the preamble ; but in this case it would be doing 
 violence to very plain words, and repealing some of the obvious 
 provisions of the statute, if it were so restrained. It is no un- 
 common thing for the preamble of a statute to recite a particular 
 mischief, as the cause of making it, and yet for the enacting part 
 to embrace more general objects, and to extend to other cases 
 which the legislature thought within the mischief. If the enact- 
 ing clause in this case were to be restrained l\v the preamble, the 
 statute would apply only to cases where several persons had joined 
 together in confederacy ; where the letter was signed with a 
 fictitious name only, and where venison or money was demanded ;
 
 CHAP. IV.] Of Threats and Threatening Letters. 
 
 and not to a letter without a name, nor to a demand of any other 
 valuable thing than money or venison, nor to any demands by such 
 letters, whether accompanied with a threat of bodily harm or not. 
 But the enacting clause expressly applies to a single offender ; to 
 a letter sent without a name, as well as to one signed Avith a fic- 
 titious name ; and to a demand of any valuable thing as well as of 
 money or venison ; and also to all demands by such letters, 
 whether accompanied Avith a threat of bodily harm or not. I agree 
 that a mere request, such as asking charity without imposing any 
 conditions, would not come within the sen.se or meaning of the 
 word " demand ; " but here the demand was made under a threat 
 that if it was not complied with the prisoner would publish a 
 libel against the prosecutor, imputing to him the death of his 
 master : for this is the construction which the jury by their verdict 
 have expressly put upon the letter. Now, whether the letter 
 does amount to such a demand or not is a question for the judges 
 to determine, upon reading it, as it is stated in the record ; and 
 they are all clearly of opinion that this is a demand within the 
 true intent and meaning of this statute. It is a demand of money 
 or money's worth (which a bank note is), by holding out a threat 
 to impute murder to the prosecutor, and to injure his fame and 
 his character ; and not a request of voluntary charity.' {f) 
 
 In the following case, upon the 27 Geo. 2, c. 15, it was holden 
 that the construction of the letter, namely, the question whether 
 it contained, in the terms of it, an actual threatening to kill or 
 murder, was properly left to the jury. The first count charged the 
 prisoner generally with feloniously sending to the prosecutor a 
 certain letter in writing, with the fictitious letters J. W. there- 
 unto subscribed, threatening to kill and murder the prosecutor, (u) 
 In the second count the letter was set out in the following 
 form : — 
 
 'SlE, 'February 9, 177G. 
 
 ' I am sorry to find a gentleman like you Avould be guilty of 
 taking MacAllesters life away for the sake of two or three 
 guineas ; but it will not be forgot by one who is just come home 
 to revenge his cause. This you may depend upon, whenever I 
 meet you, I Avill lay my life for him in this cause. I follow the 
 road, though I have been out of London ; but on receiving a 
 letter from MacAllester before he died, for to seek revenge, I am 
 come to town. I remain a true friend to MacAllester. 
 
 ' J. W.' 
 
 Hotham, B., left it to the jury to consider whether this letter 
 contained in the terms of it an actual threatening to kill or 
 murder, directing them to acquit the prisoner if they thought that 
 the words might import anything less than to kill or murder. The 
 jury found the prisoner guilty, and upon a case reserved on the 
 point (amongst others), viz., whether the letter purported to be a 
 letter threatening to kill or murder, ten judges, who were 
 present, were all clearly of opinion that the conviction was right, 
 
 239 
 
 Demand. 
 
 Question left 
 to the jiiiy, 
 wliether a 
 letter con- 
 tained au 
 actual threat- 
 ening to kill 
 or murder, 
 within the 
 repealed 
 clause of 
 27 Geo. 2, 
 c. 15. 
 
 (<) Robinson's case, 2 Leach, 479. 2 
 East, P. C. c. 23, s. 2, p. 1110. 
 {h) Sec liost, !>. 252, as to the neces- 
 
 sity of setting out tlic letter in tlie iu- 
 dictnicut.
 
 240 
 
 JojiHotiV nxHO, 
 IIoMcii tint 
 an lli«' li'lt'T 
 did not /((/ 
 nercxKitrii con- 
 »tvnrtton ini- 
 jiort a tlircat 
 to Inirn, kc, 
 a convii'tioii 
 uprn tliiit 
 statu to wius 
 wrong. 
 
 On an indict- 
 ment under 
 the 4 Geo. 4, 
 c. 54, s. ?,, 
 for sending a 
 letter thieat- 
 ening to bum, 
 &c., which is 
 set out, it may 
 be left to the 
 jury to say 
 whether the 
 letter sent 
 
 Of Tlircafs and Threatening Letters. [book v. 
 
 ;iii(l that (III- ronstructioii of tlu; letter was properly left to the 
 jury. ('') 
 
 it was lioMcii, however, in a sub.seqnent rase, tliat as the letter 
 in (|nestioii did not, hy iicrrssdri/ conHtniciloii , import .a threat 
 to hurn the prosee.ntor's farin-honsc and ])uihlin<,'K, a conviction 
 upon the 27 Vxco. 2, c. 1.5, was wrong. 'J'lio letter was as fol- 
 lows : — 
 
 ' Mr. WoODGATK,— Sir, ' March 3rd, 171)8. 
 
 ' I am very sorry to ac(|uaint you that wc are determined to 
 set your mill on fire, and likewise to do all the public injury that 
 wc are able to do you, in all yonv farms and seferes, (vj) which you 
 are in ])ossession of, without you on next (x) day release that Ann 
 Wood which you put in confinement. Sir, we mention in a few 
 lines that w(> hope if you have any regard for your wife and 
 family you will take our meaning without anything further; and 
 if you do not wc will persist as far as we possibly can, so you may 
 lay your hand at your heart, and strive your uttermost ruin. I 
 shall not mention nothing more to you until such time as you find 
 the few lines a fact, with our respect. So no more at this time 
 from me, ' R. R.' 
 
 Upon the trial, Mr. Woodgate, the prosecutor, swore that he 
 had had a share in a mill three years before this letter was written, 
 but had no mill at that time ; but that he held a farm when the 
 letter was written and came to his liands, and still held it, with 
 several buildings upon it. It was objected that this was not such 
 a letter as comprehended the offence in the Act of Parliament ; 
 and the prisoner having been convicted, the point was submitted 
 to the consideration of the judges, who agreed (except Eyre, C. J., 
 who Avas ab.'^ent) that as the prosecutor had no such property at 
 the time as the mill which was threatened to be burnt, that part 
 of the letter must be laid out of the question. As to the rest of 
 the letter. Lord Kenyon, C. J., and Buller, J., were of opinion 
 that it must be understood as also importing a threat to burn the 
 prosecutor's farm-house and buildings ; but the other judges not 
 thinking that a necessary construction, the conviction was holdeu 
 wrong, iy)^ 
 
 It has since been held that upon the trial of an indictment for 
 sending a letter to the prosecutor, threatening to burn his house, 
 lie, it may be left to the jury to say whether the letter amounted 
 to such a threat. The indictment charged that the prisoners 
 feloniously did send to J. Belcher a writing, without name or 
 signature, directed to the said J, Belcher, by the name and de- 
 scription of 'Starve-gut Belcher,' threatening to kill and murder 
 him, which said writing is as follows, viz. : — 'Starve-gut Belcher, 
 if you don't go on better great will be the consequence ; what do 
 you think you must alter an (or) must be set fire ; this came from 
 
 (v) Girdwood's case, 1 Leach, 142. 2 
 East, P. C. c. 23, s. 4, p. 1120. The 
 prisoner was cxecuti'd. 
 
 (ir) It is said that by this was under- 
 stood ' settings or lottings,' and that the 
 wliolo letter was evidently the production 
 of ail illiterate person, being falsely spelt 
 
 nearly throughout. 2 East, P. C. c. 23, 
 s. 2, p. lll.'i, note {o). 
 
 (x) In 2 Kast, ibid., the learned writer 
 says, that the word at this part was unin- 
 telligible in his copy. 
 
 ( v) Kex V. Jepson, 2 East, P. C. c. 23, 
 s. 2, p. 1115.
 
 CKAr. IV.] Of Threats and Threateninrj Letters. 
 
 London : i say ^^jur nose is as long rod gfFg sharp as a flint, 
 1835. You ought to pay your men.' A second count set out the 
 letter as threatening to burn and destroy his houses, outhouses, 
 barns, stacks of corn and grain, hay and straw. Lord Denraau, 
 C. J., asked the jury in the terms of the statute, whether this was 
 a letter threatening to put J. Belcher to death, or to burn and 
 destroy his houses, outhouses, barns, stacks of corn and grain, hay 
 and straw ? The jury negatived the threat to put him to death, 
 but found that the letter threatened to fire his houses, outhouses, 
 Imrns, stacks of corn and grain, ha}^ and straw. Lord Denman, 
 C J., had some doubts whether this question ought to have been 
 left to the jury, and whether the letter could be in point of law a 
 threatening letter, to the effect found ; but, upon a case reserved, 
 the judges held the conviction good after verdict, (z) 
 
 A letter threatening to accuse the prosecutor of having made 
 overtures to the prisoner to commit sodomy with him, did not 
 threaten to charge such an infamous crime as to be within the 
 4 Geo. 4, c. 54, s. 3. («) 
 
 A letter intimating that some persons had conspired to burn or 
 otherwise destroy the property of the prosecutor, and offering to 
 make a disclosure if a certain sum of money was placed in a certain 
 spot for the writer, is not witliin the 7 & 8 Geo. 4, c. 29, s. 8 ; 
 though it may create apprehension in the owner's mind, it does 
 not contain a menace, {h) The prisoner was indicted under the 
 7 & 8 Geo. 4, c. 29, s. 8, for sending the following letter to Mr. 
 Young, demanding money with menaces : — 
 
 'Sir, 
 'As you are a gentleman and highly respected by all who know 
 you, I think it my duty to inform you of a conspiracy. There is 
 a few young men who have agreed among themselves to take from 
 you personally a sum of money, or injure your property. I have 
 overheard all the affair. I mean to say, your building property, 
 in the manner they have planned this dreadful undertaking, 
 would be a most serious loss. They have agreed to commence 
 this upon an appointed time in the course of this winter, which 
 would be a most dreadful sight. Sir, I could give you every par- 
 ticular information how you may preserve your property and your 
 person, and how to detect and secure the offenders. Sir, if you 
 Avill lay me a purse of thirty sovereigns upon the garden Q(\ge, 
 close to Mr. Tatler's garden gate, I will leave a letter in the place, 
 to inform you of the night this is to take place. I can also inform 
 you how you could be sure to secure the offenders ; but j'ou must 
 keep this all quite secret, and not make a talk of it, as it would 
 come to their cars, and then they would put it off to another time 
 Sir, I hope you will not attempt to seize upon me, when I come 
 to take up the money and lay down the note of information. Sir, 
 you will find I am doing you a most serious favour. You will 
 
 241 
 
 amounteil to 
 such threat. 
 
 Under the 4 
 Geo. 4, c. 54, 
 s. .3, such 
 crimes only 
 were to be 
 deemed in- 
 famous as sub- 
 jected a man 
 to infamous 
 punisliment or 
 incapacitated 
 him from 
 being a wit- 
 ness. 
 
 A letter 
 stating that 
 the writer had 
 overheard 
 jiersons agree 
 to injure the 
 property of 
 tlie prosecutor, 
 and if he 
 would lay 
 thirty sove- 
 reigns at a 
 certain place 
 the writer 
 would give 
 information to 
 frustrate the 
 attempt. 
 
 (r) Ilex r. Tyler, R. & M. C. C. R. 
 428. 
 
 («) Rexr. Hirkinaii, R. & M. (_'. C. R. 
 34. The word ' solicitation ' was intro- 
 duced in the 6 Geo. 4, c. 19, the 7 & 8 
 Geo. 4, c. 29, s. 9, and the 1 Vict. c. 87, 
 s. 4, to meet this case. Another point, 
 VOL. III. 
 
 on wliioh the judges were equally divided, 
 was whether ihe letter supported a count 
 for sending a letter demanding money 
 from the prosecutor. 
 
 {b) MS. Bayley, J. 3 Burn, J. D. k 
 "\Vms. 50(3.
 
 If a letter con- 
 tain an appli- 
 cation for 
 money ac- 
 companied by 
 a threat of ill 
 consequences if 
 the money is 
 not given, it is 
 within the 
 statute, 
 though the 
 evil foretold 
 may not pro- 
 ceed from the 
 writer of the 
 letter. 
 
 AVhether a 
 threat be 
 within the 
 statute or not 
 depends on the 
 general nature 
 of the evil 
 threatened, 
 and not on the 
 nerves of the 
 individual 
 threatened. 
 
 Of Thratts (Hid Thrcctenifirj Letters. [BOOK V. 
 
 ])l('!isc I'xcu.sc nic in not •lesciil)inL( my name, Lut I will make 
 myself known the day after you have taken them, and Ije a 
 witne.ss against them. I shall come to lay down my letter on the 
 1st of December if I find the money. Sir, I am y<jur unknown 
 fri(Mid.' 
 
 It appeared that the prisoner had written the letter, and had 
 done so with an intention of getting the thirty sovereigns to leave 
 the country. For the prosecution it was contended that the letter 
 contained a suflficient demand of money, as the request was accom- 
 panied by a condition, namely, to discover persons going to do a 
 certain act ; and liohinsrw's cane {c) was cited. And, with re- 
 spect to the menaces, to hold that the letter contained none, would 
 be equivalent to holding that, whenever the menaces came from 
 one person, and the letter from another, neither could be indicted ; 
 and, at all events, it was a question for the jury whether the letter 
 did contain menaces. Girdwood's case, (d) Bolland, B., thought 
 that he ought to decide whether the letter contained menaces or 
 not ; but he consulted Littledale, J., who thought the que.stion 
 should be left to the jury ; and Bolland, B., then left it to the jury 
 to say, whether the letter contained menaces : and they convicted 
 the prisoner ; but, upon a case reserved, the judges were of opinion 
 that the conviction was wrong, (e) 
 
 The prisoner was convicted of having feloniously sent a letter 
 to Sir \V. R. Farquhar, Baronet, and others, demanding money 
 with menaces, and without any reasonable or probable cause, of 
 which letter the following is a copy : — 
 
 ' Gentlemen, 
 
 ' You say B. 0. N. will accede to the terms proposed, 
 and send part of the means to any place which may be named. 
 You would have had an answer yesterday, but was prevented. If 
 you act honourably by me, and not by any means deceive me, or 
 allow any spy to watch \nel ivill save you or perish in the attempt, 
 though I hazard my life in so doing, and must have sufficient 
 means at my disposal without delay, or all will be lost. I am fully 
 assured that 20,000^. would not cover the horrid catastrophe, 
 vjJiich luoiild not only stop your hank for a time, butp)erhaps for 
 ever, as the hooks ivould he all destroyed. The mcdch, the most 
 dreadful and last resource, has heen contemplated by the cracks- 
 ma?i or captain of this most horrid gang, which I fervently pray 
 to be relieved from. (I have never yet, so help me, God, done a 
 deed I am afraid or ashamed of) and the only way I can privately 
 obtain means wall be the following : — At the London end of Ken- 
 sington gardens (on the Knightsbridge side) there is a dike sloped, 
 which divides the gardens from the park and a carriage road, 
 where the roads meet as you turn to ride or drive across the bridge. 
 It is a short distance from the Hrst lodge, where the keeper re- 
 mains in the gardens. By looking up that dike you will see large 
 iron pipes, which convey water, &c., to the pond. A large ebn 
 
 (c) Ante, p. 2.39. 
 
 id) Ante, p. 240. 
 
 k) Re.K r. Pickford, MSS. C. S. G. 
 and 4 C. & P. 227. S. C. 3 Burn, J. D. 
 ,^ Wms. F,06. Tindal, C. J., Garrow, B., 
 
 Park, J. A. J., and Bosanquet, J., 
 thought this a letter demanding money 
 with menaces. The other eight judges 
 inclined to a contrary opinion. MS. 
 Bayley, J.
 
 CHAP. IV.] Of Threats and Threatening Letters. 243 
 
 tree stands in the middle of this road, betwixt the park and the 
 gardens. There is snfficient room under the first pipe to conceal 
 a small bag. If you will, therefore, send a man you can confide 
 in, and lodge beneath the pipe 250 sovereigns unseen by any 
 mortal eye, I swear most solemnly by Almighty God to prevent the 
 evil, if, when I have completed my task, and inform you all is safe, 
 or denounce the villains, you will let me have 250?. more, which, 
 if God prospers me, I will repay wdth gratitude, as I could not get 
 into business for less than 500?., to obtain a respectable living. 
 Let the money be lodged to-morrow (Saturday) morning, by half- 
 past eleven, but not a moment sooner, and all shall be well with 
 you ; but if I am at all deceived in any possible way all must fall 
 on yourselves.' (/) It was objected that this was not a threatening 
 letter within the statute ; but the objection was overruled : and, 
 on a case reserved upon that question, it was contended that the 
 letter contained no menace from the party writing it, and that the 
 case was not distinguishable from PichforcVs case, (g) Wilde, C 
 J., ' " Let the money be lodged to-morrow morning, by half-past 
 eleven, but not a moment sooner, and all shall be well with you ; 
 but if I am at all deceived in any possible way, all must fall on 
 yourselves." Is that not a threat? That is not found in terms at 
 all events in PichforcVs case : so we need not overrule that de- 
 cision to support this conviction.' ' We are all agreed that this 
 letter contained such a demand as is contemplated by the statute. 
 There is an application made for money to be given to the appli- 
 cant, accompanied by a threat of ill consequences if that money is 
 not so given. The writer professes to be cognizant of all the cir- 
 cumstances connected with the evil foretold, and capable of avert- 
 ing them ; and seeks to make the prosecutor part with his money 
 against his will in order to induce the writer to avert the evil. It 
 is said that this is not such a threat as the law will take notice of ; 
 and that it does not come within the rule adverted to by Lord 
 EUenborough in Rex v. Southerton, (h) viz., that it must be a 
 threat attended with duress, or such a threat as may overcome the 
 ordinary free will of a firm man, and induce liim from fear to part 
 with his money. That rule must be understood to refer rather to 
 the nature of the threat than to the probable consequences in any 
 particular case. Whether a threat be criminal or no cannot be 
 taken to depend on tlie nerves of the individual threatened, but 
 [must depend] on the general nature of the evil with which he is 
 threatened. Threats attended with duress, or threats of duress, or 
 of other personal violence, or of great injury, such as is imported 
 by this letter, will come within the rule.' (i) 
 
 A count alleged that the prisoner sent to A. G. B. Coutts and It is a ques- 
 others, her partners, a certain letter directed to the said A. G. B. V**" [^^'^^^ 
 
 /-^ 1111 1 1 • • f 1 T r^ ]'""y *"^ whom 
 
 Loutts, and others, by the name anil description ot J. Ooutts, the letter is 
 
 Esq., Banker, Strand,' demanding money from them with menaces ; iutendcd to be 
 
 sent. 
 
 (/) Tho question whctlier this was a (;/) Supra, note (<•)• 
 
 threatening letter within tho 7 & 8 Geo. (h) G East, I'ifi, a)ift\ p. 232. 
 
 4, c. 29, s. 8, was treated as a question (/) Reg. v. Smith, 1 Den. C. C. 610. 
 
 of law by the judge at the trial, and this AVilde, V. J., added, ' This decision does 
 
 was objected to on the ease reserved ; but not interfere with that of Kex v. Pick- 
 
 the Court thought the ])oiut ought to have ford. ' 
 been raised ou the trial.
 
 i! 1 I ()/ Til rents and Thrratcniinj Letters. [kook v. 
 
 So uIko }iiintli( r count stated tlic letter to be sent to A. G. B. Coutts. The 
 
 whether it letter cuiitaiiicd the following passages ; — 
 
 (■(intninH 
 
 threiiUs, , _ , 
 
 ' Ml{, 
 
 "JMiL! most (Icsporato Cfang in the metropolis have restjlved to 
 <)l)tain ])Osscssion, by wliatovor moans, of a certain portion of your 
 j)roj)erty : it is composed of starvin;^ men, and no efforts will be 
 spared in effecting their firm resolves.' * * * < Learning their 
 design upon you, and having further a strong consideration for you. 
 I made every effort to dissuade them, at the risk of personal sus- 
 picion and consequent danger, to abolish their intentions as re- 
 spects yourself: further than this I dared not go ; but intense 
 s>iffering closes the ear of mercy. To remove that suffering is the 
 only way to give access into its natural dictates ; they, however, 
 mutually agree that if I will give them a hundred pounds in solid 
 gold, they will relinquish their design upon you ; nothing less will 
 satisfy. I communicate to you their demand ; and personal safety 
 will, I hope, induce compliance.' * * * ' If they receive the 
 sum in question, I am firmly convinced you will never have any 
 cause of fear from them ; but if not, non-compliance will hereafter 
 be repented of too late.' * * * 'That on Friday night next, 
 at half-past nine o'clock, you will cause a little boy to be stationed 
 at the base of the monument, Avho shall have in his possession the 
 sum of one hundred pounds in solid gold, encased in boards, so 
 that he shall not be aware of the contents, and deHver the same to 
 the individual who asks for a parcel.' It w^as objected that as the 
 letter Avas directed to J. Coutts there was no proof of its being 
 intended for any of the partners mentioned in the indictment ; 
 and that the letter was not a threatening letter within the statute. 
 Maule, J. (to the jury). 'In the first place, the prosecutor must 
 make out to your satisfaction that this is a letter addressed to A. 
 G. B. Coutts and others, individually or collectively, by the name 
 of J. Coutts, Esq., Banker, Strand. The question is, is it in sub- 
 stance directed to them ? I do not think it necessary that the 
 direction should contain the actual name of the partners in the 
 firm ; becau.so nothing could then be more easy than to send a 
 threatening letter with perfect impunity. Such a direction might 
 be used as Avould ensure the paper reaching the parties for whom 
 it was intended, whilst at the same time such a variation might be 
 adopted as would ensure to the writer an acquittal, on the ground 
 of such a variance as is here urged. Evidence has been given that 
 the firm was once T. Coutts & Co., and that none but themselves 
 carry on such a business in the Strand, or in London, by such a 
 style now. It is for you then to say whether the parties stated in 
 the indictment are not those for whom the letter was intended. 
 Second!}', is this a letter demanding money with menaces without 
 any reasonable and probable cause ? To ascertain this you must, 
 of course, look to the letter itself, and to the situation of the parties. 
 It may be that, under certain circumstances, an apparently inno- 
 cent letter may convey a threat. It ma}' be that no letter could be 
 written wdiich it might not be possible to prove by extraneous 
 matter did not contain a threat. Now I can conceive a case 
 where such a letter as this might be written : — "Sir, I trust you 
 are well, and I shall be happy to meet you to-morrow." There I
 
 CHAP. IV.] Of Threats and Threatening Letters. 24 5 
 
 should consider myself called upon to withdraw such a letter from 
 the jury, because it would be absurd to say such a letter con- 
 tained a threat. But as it is impossible I can tell you that this 
 letter may not contain a threat, I cannot decide that it is not a 
 question for the jary.' ' In Rex v. Pickford (j) the jury were told 
 that the letter was not a threatening one. They found, therefore, 
 nothing more than that it had been sent by the prisoner, and 
 the Court held that they ought to have decided the whole question. 
 This principle is farther illustrated by Rex v. Tyler, (k) where a 
 different course was, in the first instance, pursued. The jury were 
 not there told that the letter did or did not contain threats, but 
 its interpretation was left to them. They came to a certain con- 
 clusion, and it was upheld by the Court. These two cases, then, 
 show what is the proper course in trials of this kind. Evidence is 
 to be given of the letter sent, and it is for the jury to say whether 
 or not it contains a sufficient threat. At any rate, if that is not 
 the proper mode of proceeding, and the Court are competent to 
 decide that this letter cannot, on any construction, be held to con- 
 tain menaces, the objection will be on the face of the record, and 
 will be open to the prisoner in arrest of judgment, or by a writ of 
 error.' (l) 
 
 An indictment on the 4 Geo. 4, c. 54, for sending a letter Letter con- 
 threateninof to kill and murder R. Collier, set out the letter as t'-immg a 
 
 ,, n ° threat to 
 
 follows :— i^^,j,r. 
 
 'Sir, 
 
 ' You are a rogue, thief, and vagabond, and if you had your 
 deserts, you should not live the week out ; I shall be with you 
 shortly, and then you shall nap it, my banker. Have a care, old 
 chap, or you shall disgorge some of your ill-gotten gains, watches 
 and cash, that you have robbed the widows and fatherless of. 
 Don't make light of this, or I'll make light of you and yours. I am 
 your ' Cut-throat.' 
 
 ' March 15th, 1831.' 
 
 It was objected that there was nothing in the letter which im- 
 ported a threat to kill and murder Mr. C. ; it was all hyptjthetical, 
 and the signature ' Cut-tliroat' could not be called in aid, for by 
 the statute the threat must be in the letter and not in the signa- 
 ture. And as the words were of ambiguous meaniucj there ouulit 
 to have been an innuendo to explain them. But Patte.'^on, J., 
 held that the letter very plainly conveyed a threat to kill and 
 murder, as no one who received it could have any doubt as to what 
 the writer meant to threaten. (?h) 
 
 The prisoner was indicted under the 4 Geo. 4, c. 54, s. 5, fur Tlncatcnius 
 having feloniously and maliciously, with intent to extort monc}'', to procure 
 charired and accused A. B. with having committed the horrible ■*^'*"*=^-^^^ *** 
 
 ^ . . . . . sui>port a 
 
 and detestable crime, &c., and that he feloniously and mahciously chari^c already 
 did menace and threaten to prosecute the said A. B. The evi- '"•■»'l" ^^■"« ."""^ 
 dence was, that he had threatened to i)rocure witnesses to support ? ^'"■^■='^*-'"'"S 
 
 . ^ , . 1 1 to accuse 
 
 a charge already made. It was objected for the prisoner that the witbin Un 
 
 {j) Aide, p. 242. This decision is 
 erroneously stated in this report. 
 (/.•) A)ite, p. 241. 
 
 {I) Key ^'- Carrutlicrs, 1 Co.x, C. C. 
 138. 
 
 (7/i) Ke.x V. Iknicher, 4 0. iV V. 5(32.
 
 24G 
 
 4 Geo. 4, 
 c. 51, H. 5. 
 
 Scmling a 
 letter to A., 
 tlirejiteniiig to 
 burn a liousc 
 of which he is 
 the owner, but 
 let by liiin to 
 auij occui)icil 
 by a tenant, 
 wa,s not an 
 offence witliin 
 the 4 Geo. 4, 
 c. 54, s. 3. 
 
 Sending a 
 letter to A., 
 threatening to 
 burn the 
 liouso of B. 
 
 Threatening a 
 laniUord to 
 burn his house 
 is within the 
 new Act. 
 
 Insufficient 
 count alleging 
 sending a 
 letter to A. 
 threatening 
 to bum a 
 bouse finished 
 byB. 
 
 Of Threats and Threatening Letters. [book v. 
 
 statute applied only to the threatening to accuse pro.spoctivcly, 
 and that this was at most a threat to support such a charge by 
 midcncr. Jiuylcy, J., ' Threatening to procure witnesses to sup- 
 ])()rt a chargt! already made is not within the Act of Parliament, 
 which makes it felony to extort money l)y threatening to accu.se 
 of an indictable offence. It is one thing to accu.se, but another to 
 procure witnesses in support of an accusation already made.' (?<) 
 
 The two first counts of the indictment charged the prisoner 
 with feloniously sending a letter to one G. Ley, threatening to 
 burn and destroy a certain house belongitig to and the property of 
 the said G. Ley. The third and fourth counts described the house 
 as a certain house in the possession of one T. Elliott, and theu 
 belonging to and being the property of the said G. Ley. It ap- 
 peared that the house was the property of G. Ley, and inhabited 
 l)y T. Elliott as his tenant, and that the letter was received by 
 G. Ley. It was objected that the two first counts were not 
 proved, as the term ' his ' in the 4 Geo. 4. c. 54, s. 3, must have 
 a possessory meaning, and according to the analogy of the rule of 
 law in arson and burglary, the house must be laid as that of the 
 party actually dwelling therein. And as to the two la.st counts, the 
 offence charged was the sending the letter to G. Ley, threatening 
 to burn the house of T. Elliott, which was held not to be an 
 offence within the repealed clause of the 27 Geo. 2, c. 15, Rex. v. 
 Paddle ; (o) and Maule, J., was of opinion that the offence was 
 not within the meaning of the statute. It must otherwise be 
 admitted that if a party should have any interest whatever in a 
 house, such as a reversion expectant on the determination of a 
 particular estate, however remote or contingent, the house would 
 be sufficiently described as ' his.' As to the other counts, the 
 offence charged was that of sending a letter to A., threatening to 
 burn the house of B., which, according to the case cited, was not 
 within the Act. {p) 
 
 But where the question was reserved, whether threatening a 
 landlord to burn his house, which was let to a tenant and in his 
 occupation, the Court avoided deciding the question ; but Alder- 
 son, B., said, ' But for the cases, I should have thought the con- 
 struction of the statute w^as " any of the houses of any of Her 
 Majesty's subjects." ' {q) And it is conceived that such a case 
 would clearly be within the large words of the new^ enactment, and 
 it is very reasonable that it should ; for the injury to the landlord 
 might, and generally would, be very much greater if the house 
 Avere actually burnt than to the tenant. 
 
 An indictment alleged that J. Rowlands had 'finished and com- 
 pleted a house at T.,' and that the prisoner sent a letter to T. 
 Lewis, directed to him by the name of ' Mi-. T. Lewis,' &c., threat- 
 ening to burn ' the house so built by the said J. Rowlands.' The 
 letter was in the prisoner's writing, and was found in a cleft stick 
 stuck in the ground close to Lewis's house, and was shown by him 
 
 (h) Gill's case, 1 Lew. 305. The 
 learned judge seemed to think that a 
 threat to prosecute would amount to a 
 threat to accuse within the meaning of 
 the Act. Sec Wax v. Abgood, 2 C. & P. 
 436, 2^<fsf, p. i??. 
 
 (o) Post, p. 251. 
 
 (p) Reg. r. Bunidge, 2 M. & Rob. 
 296. 
 
 {q) Reg. V. Grimwade, 1 Den. C. C. 
 30, 1 C. & K. 592.
 
 CHAP. IV.] Of Threats and Threatening Letters. 
 
 to Rowlands. Lewis had been tenant of the premises, and after 
 him Rowlands became tenant, and had built a house on the pre- 
 mises. It was objected that the letter was intended for Lewis and 
 not for Rowlands, and that the indictment sliould have stated that 
 the letter was sent to Rowlands, or that he received it. The jury 
 found that the prisoner sent the letter, intending that it should 
 reach Rowlands as well as Lewis ; and, upon a case reserved upon 
 the question, 'whether the prisoner, upon this indictment and 
 these facts, was properly convicted,' the judges were unanimously 
 of opinion that the indictment was bad. (r) 
 
 The word ' accuse ' in the 7 & 8 Geo. 4, c. 29, s. 7, meant to 
 charge the prosecutor before any third person, and ' threatening 
 to accuse ' meant threatening to accuse before any third person. 
 The first count of the indictment was for extorting money by 
 threatening to accuse the prosecutor of an unnatural offence ; the 
 second count for extorting it by accusing, &c. The prisoner ac- 
 costed the prosecutor, and after intimating to him that he and 
 another person had seen him in the act of committing the offence 
 alluded to, added, 'Well, sir, we don't want to say anything 
 about it ; give us our allowance-money, and we will say nothing 
 about it.' The prosecutor gave him five shillings. It was ob- 
 jected that the words proved did not amount to a threat to accuse, 
 or an accusation within the 7 & 8 Geo. 4, c. 29. s. 7. That the word 
 ' accuse ' imported a charge made before a magistrate, or some 
 judicial tribunal. But Patteson, J., was clearly of opinion that 
 the words spoken by the prisoner did bring the case within the 
 Act. By the former law it was a felony to extort money by 
 threatening to accuse the prosecutor to any third party ; and it 
 was not necessary that the threat should be that of accusing by 
 course of law ; and the 7 & 8 Geo. 4, c. 29, s. 7, being declaratory 
 of the former law, could hardly be construed as less extensive in 
 its operation ; neither was it necessary to construe the term 
 ' accuse ' in two different senses ; the term ' accuse ' throughout 
 the Act meant to charge the prosecutor before any third person, 
 and ' threatening to accuse ' meant to charge before any third 
 person, (.s) 
 
 The prisoner was indicted for sending to J. H. a letter demand- 
 ing money from her with menaces. Tiie letter sent by the prisoner 
 to the prosecutrix alluded in threatening and mysterious language 
 to facts injurious to her reputation, and added that if she did not 
 write by twelve o'clock on a certain day, he would explain all to 
 her father, brothers, and friends. The prisoner afterwards sent 
 a letter to the father, in which the prisoner stated that he had 
 received instructions to subpoena his daughter, J, H., as a witness 
 
 247 
 
 Meaning of 
 the terms 
 ' accuse,' and 
 ' threaten to 
 accuse,' in tbe 
 7 & 8 Geo. 4, 
 c. 29, s. 7. 
 
 The worJ.s 
 ' without rea- 
 sonable and 
 probable 
 cause' apply 
 to the money 
 demanded 
 and not to the 
 threats. 
 
 (r) Reg. V. Jones, 1 Deu. C. C. 218, 
 2 C. k K. 398, E. T. 1847. In the latter 
 report it is stated that the jiulf,'('s held 
 that the indictment was bad, and that 
 the threat must be to the owner of the 
 property ; and that if the letter was sent 
 to Lewis with intent that it should reaeh 
 Rowlands, and did reach him, it should 
 have been chari^ed in the indietment as 
 sent to Rt)wlands. It is to lie observed 
 that the indictment was clearly bad on 
 
 the ground that it neither stated that the 
 house was the property of or belonged 
 to Rowlands, but only that he lind 
 ' tinishcd and completed a house,' 'for 
 the/«/«/v dwelling of himself,' ic. ; and 
 the dccisio7i that the count was bad may 
 liavo been on this ground. The new 
 clause would plainly include such a case 
 if the count were properly framed. 
 
 (s) Rex r. liobinson, 2 M. &, Rob. 
 14. 2 Lew. 273.
 
 248 
 
 A letter 
 threatenin, 
 burn st:iii>l 
 com is uot 
 within tlio 
 statute. 
 
 2 to 
 
 ( >) T/in'dls tdi'l ThrcateiiuKj I.r/Jcrs. [book v. 
 
 against a lnotlKil, wliidi biotlul liis dauj^hter had frequently 
 visited, diiriiiL,' tin- last two niontlis, iti company with an officer. 
 J. H. was too ill to attend as a witness on the trial, and on the 
 part of the prisoner it was suggested that, as tin.' fact of her having 
 gone to the brothel was not negatived, it could not he coneIu<led 
 that the prisoner had not reasonable and probaljhj cause for tiic 
 accusation he threatened to make ; but llolfe, B. (William.s, J., 
 being present), told the jury that in his opinion the words 'rea- 
 sonable and probable cause,' as used in the Act of Parliament, 
 applied to the money demanded, and not to the accusation consti- 
 tuting the threat ; and tliat if the lady had in fact gone to the 
 brothel, it woukl not have made any diffi.'rence in the case, (t) 
 
 An indictment alleged that the prisoner sent the following letter 
 to S. Hill, threatening to burn his houses, barns, ricks, and stacks 
 of grain : — 
 
 ' It is the proveuce of the Allmighty that is gest com to my 
 knolege aboute your treatment of yourself and whife to the old 
 man yet made iiim do jest as you like so I warne you shant do 
 jest as you plase with me. If william is so quoiet you shant find 
 it the case with me ; let you go wear you like you shore to be 
 found out, you meae think that goine to be safe becose you goine 
 to leve the Lizard ; the a speciment of it in Mallion for you to 
 go by. Prapes you mat read of Sampson Ridle and the fox 
 Philistines. If no foxes to bit got thee may somfing in steed. If 
 the not somfing don very shortly you not go ouponished. I warne 
 you I not prise you of any more. I think you injoyment will be 
 very short in this world. Silfeshness will not indoer long. 
 
 ' I jest let you know" wot I meane you ; you ben a very great 
 enemy to me ; bot by god I not forgit you if ray life is spared. 
 "Vingens is mine, and I will repairt so shore is a god in heving. 
 So no more. 
 
 ' Joseph Mitchell.' 
 
 There had been incendiary fires in Mallion to houses, barns, 
 and stacks of corn, and a quantity of standing barley had also 
 been burnt. The father of the prosecutor and prisoner had died, 
 and left all his property to the prosecutor, and this had much 
 enraged the prisoner, and they were on bad terms. The pri- 
 soner had said that he had not been served fair about his father's 
 property, and that he had written a letter to his brother to frighten 
 him, and get some of the property, and that he had said in it that 
 he would serve him as Sampson did the Philistines, and that 
 Sampson had tied two foxes' tails together, with a firebrand be- 
 tween them, and sent them into the standing corn. Pollock, C. B., 
 held that there was no evidence of any threat to burn, except to 
 burn standing corn. The statement of the prisoner of what he 
 meant by what he had written in the letter, must be taken into 
 consideration in attaching a meaning to that letter, and the allu- 
 sion to Mallion might well be explained to mean the same thing, 
 as it was shown that standing corn was burnt there as well as 
 houses. The fair construction to be put on the letter was that it 
 
 {') Keg. v. Hamilton, 1 C. & K. 212.
 
 CHAP, IV.] Of Threats and Threatening Letters. 
 
 contained a threat to burn the standing corn of the prosecutor, 
 and, if so, that was not an offence within the statute, (u) 
 
 It was decided that the sending a letter signed with initials 
 only, was sending a letter without a name, within the 9 Geo. 1, 
 c. 22. {v) 
 
 In a case where the indictment, which was framed upon the 
 30 Geo. 2, c. 24, charged the prisoner with sending a threatening 
 letter, intending ' to extort and gain money' it was h olden not to 
 be supported by evidence of a letter threatening to accuse the pro- 
 secutor of an unnatural crime if he did not give up a certain 
 hill drawn by the prisoner, and of which the iDrosccutor was tlie 
 holder, (u') 
 
 In a case where the question arose whether there was sufficient 
 evidence of the prisoner's having sent the letter in question, 
 knowing its contents : the facts were that the prosecutor proved 
 the receipt of the letter by the penny post, at his house, in a 
 street near Berkeley-square, in the county of Middlesex, and his 
 tracing it up to one Elizabeth Robinson, who swore tliat she was 
 emjjloyed in going errands for the prisoners in Newgate, and that 
 having received this letter from the prisoner's hands at the grate 
 at Newgate, she immediately carried it to the post-office in New- 
 gate-street. And the servant of the office-keeper confirmed her 
 account, and both swore to the identity of the letter, the direction 
 being in a remarkable hand. The case was left to the jury, with 
 a direction to consider whether from the prisoner's delivering the 
 letter he knew the contents of it ; and the jury, having found the 
 prisoner guilty, the question was submitted to the consideration of 
 the judges, whether there were sufficient evidence to be left to the 
 jury of the prisoner's sending the letter, knowing the contents. 
 The judges held that the conviction was right, (.c) 
 
 The prisoners, who were husband and wife, were indicted on the 
 9 Geo. 1, c. 22, and the 27 Geo. 2, c. 15, for feloniously sending a 
 threatening letter to their master, demanding lOL The wife 
 wrote the letter, and it was delivered to the prosecutor by the 
 husband, who said he found it in tlie prosecutor's garden ; but 
 there was no evidence that he had any knowledge of its contents. 
 It was objected on behalf of the prisoners that the offence de- 
 scribed by the statutes on which the indictment was founded was 
 ' knowingly sending a threatening letter,' whereas the evidence 
 only showed that the wife had written the letter, and that the hus- 
 band had delivered it, and that there was no proof of its having 
 been sent to the prosecutor. The Court (Ashhurst, J., and 
 Perryn, B.), agreed that merely writing a threatening letter would 
 not constitute the offence witliin these Acts of Pa)-liament ; that 
 carrying a letter could not be comprehended under the word 
 ' send ' in the statutes ; that the legislature had it not in con- 
 templation that any person would be the carrier of a threatening 
 letter which he himself had written or contrived ; and that the act 
 of delivering: a threateniuij: letter was not tlie offence described in 
 
 2i9 
 
 A letter signed 
 with initials 
 only, was con- 
 sidered as a 
 letter without 
 a name within 
 the 9 Geo. 1, 
 c. 22. 
 
 A charge of 
 an intent to 
 extort tnonetf, 
 not supported 
 hy proof of an 
 intent to ex- 
 tort a bill of 
 exchange. 
 
 Seniing a 
 letter, know- 
 ing the con- 
 tents. 
 
 Where tlie 
 wile wrote a 
 threatening 
 letter, and the 
 husband car- 
 ried it to the 
 jiarty threat- 
 ened, held that 
 tlie husband, 
 tliough i)rivy 
 to the writing, 
 was not within 
 the 9 Geo. 1, 
 c. 22, or 27 
 Geo. 2, c. 15, 
 nor could the 
 wife alone bo 
 convicted un- 
 less slie wroix) 
 and sent it 
 witliiiut tlic 
 husliaiid being 
 l)rivy to the 
 contents. 
 
 («) Ee.i,'. V. Hill, 5 Cox, C. C. 2:53. 
 
 {v) Kol)inson's case, 2 Leach, 7-19. 2 
 East, P. C. c. 23, s. 2, p. 1110. Jntc, 
 p. 239. 
 
 («•) Major's case, 2 Leach. 772. 2 
 
 East, P. C. c. 23, s. 3, p. 1118. 
 
 {.v) Ginhvood's case, 1 Leach, 142. 2 
 East, P. (.'. c. 23, S.4, p. 1120. Jntc, p. 
 240.
 
 250 
 
 Sending the 
 letter l)y tlic 
 post, or by in- 
 direct lueau.H. 
 
 The letter must 
 formerly have 
 been sent to 
 the person 
 threatened. 
 
 Of Threats and Tlireateninfj Letters. [book v. 
 
 those statutes. Tlial if :uiy ddul)!, could be entertained upon that 
 |>(»iiit., th(^ Ic^Mslatiiro itself had roiii()Vt;d it, for by the subsequent 
 Act, .SO (Joi). 2, c. 24, the ofifence of deHvcring as well as sending 
 ;i ihn'atcMin;.^ letter was made a misdemeanor, punishaldo at the 
 discretion of the (Jourt, according to the circumstances of the 
 ease. But the Court further observed, that there wa.s still a 
 question for the consideration of the jury ; for though M. H. 
 were the wife of the other prisoner, yet if the jury were of opinion 
 that slu! wrote the letter itself without any intervention of her 
 husband, and sent it by him, witliout his knowing anything of the 
 contents, to the prosecutor, she alone might 1)0 found guilty; but 
 that otherwise both the prisoners must be acquitted, (y) 
 
 In a case where the prisoners were indicted for sending a letter, 
 the proof was that the letter was of the handwriting of one of the 
 prisoners, and that it was thrown by the other prisoner into the 
 yard of the prosecutor, from whence it was taken by a servant of 
 the prosecutor, and delivered to him. {z) And in another case 
 the proof was that the letter in question was in the handwriting 
 of the prisoner, who sent it to the post-office, from whence it was 
 sent in the usual manner to the prosecutor, (a) In another case, 
 where it was proved that the prisoner dropped the letter into a 
 vestry-room, which the prosecutor frequented every Sunday morn- 
 ing before service began, from whence the sexton had picked it 
 up, and delivered it to him, Yates, J., said that it seemed to be 
 very immaterial whether the letter were sent directly to the pro- 
 secutor, or were put into a more oblique course of conveyance, 
 by which it might finally come to his hands. (6) And in a sub- 
 sequent case it was holden that dropping a letter in a person's 
 way, in order that such person miglit pick it up, was a sendinr/ of 
 the letter to such person, (c) In a case upon the 27 Geo. 2, c. 15, 
 it was decided, that in order to bring the offence within that 
 clause, it was necessary to prove that the letter was sent to the 
 person threatened ; and also that sending it to A., in order that 
 he might deliver it to B., was a sending to B., if it were so de- 
 livered. A letter threatening to burn the house of Rodwell, and 
 the stacks of Brook, was sent to Kirby, and the indictment charged 
 the sending it to Kirby. Upon a case reserved, the judges held 
 that a sending to Kirby, as Kirby was not threatened, was not 
 within the statute ; and upon that account the judgment was 
 arrested ; but they intimated, that if Kirby had delivered it to 
 Rodwell or Brook, and a jury should think that the prisoner 
 
 {y) Rex V. Hammond, 1 Leach, 444. 
 
 (s) Eex r. Jcpson, 2 East, P. C. c. 23, 
 a. 2, p. 1115. Ante, p. 240. 
 
 {a) Heming's case, 2 East, V. C. c. 23, 
 s. 2, p. 1116. Chambre, J. 
 
 (/)) Lloyd's case, 2 East, P. C. c. 23, 
 s. 5, p. li22. The case was submitted 
 to the judges on another point, on which 
 the indictment was holden to be detective 
 (see post, p. 2.">2'). so that it became un- 
 necessary for them to give any opinion 
 on the point above stated. In 2 East, 
 P. C. uln supi-a, the learned writer in 
 note (rt) says, ' Qu. whether, if one in- 
 tentionally put a letter in a place where 
 it is likely to be seen and read by the 
 
 party for whom it is intended, or to be 
 found by some other person, who it is ex- 
 pected will forward it to such i)arty, and 
 the letter do accordingly reach its intended 
 destination, this may not be said to be a 
 sending to such party, supposing such an 
 allegation to be necessary upon the true 
 construction of the Acts? The same 
 sort of evidence was given in Jepson's 
 case {ante, p. 240^ in support of the alle- 
 gation of sending a threatening letter 
 to the prosecutor, and no objection was 
 made on that ground. And the general 
 current of precedents is in the same 
 form.' 
 
 (.) Kex r. AVagstaff, R. & K. 398.
 
 If a threaten- 
 ing letter be 
 directed to A., 
 but the evi- 
 dence satisfies 
 the jury it was 
 intended to 
 
 count charg- 
 ing a sending 
 to B. 
 
 CHAP. IV.] Of Threats and Threatening Letters. 251 
 
 intended he should so deliver it, this would be a sending by the 
 prisoner to Rodwell or Brook, and would support a charge to that 
 effect, {d) 
 
 A count charged the prisoner with sending a letter to one W. 
 Brown, threatening to burn his house. The letter was left by the 
 prisoner at a gate in a public road near Sir J. Rowley's house, di- 
 rected to ' Sir Joshua Rowley, Baronet, Stoke, Suffolk.' Having 
 been found there by one of the witnesses, it was forwarded by 
 him to Sir J. Rowley's house, and there deposited in the steward's reachThe 
 room, and there opened by the steward, who read it, but instead hands of B., 
 of delivering it to Sir J. Rowley, he handed it to a constable, who ^^^^^^^e house it 
 afterwards showed the letter both to Sir J. Rowley and Brown, t^^^^^ ^j^jg 
 who occupied a house under Sir J. Rowley, under an agreement, supports a 
 two years of which remained unexpired. Alderson, B., directed 
 the jury to consider whether, in leaving the letter as before de- 
 scribed, the prisoner intended that it should not only reach Sir J. 
 Rowley, to whom it was directed, but that it should also reach 
 Brown, and then, if they thought so, the learned Baron was of 
 opinion that w^ould be a sending to Brown ; and the jury having 
 convicted, upon a case reserved, the judges were of opinion that 
 the conviction was right, (e) 
 
 The prisoner was indicted for sending a threatening letter to 
 the prosecutor. The letter was proved to have been affixed to a 
 gate in a public highway, near which the prosecutor would be 
 likely to pass from his house ; and Cresswell, J., held ' that if it 
 were proved that the prisoner wrote the letter and affixed it on 
 the gate, it was a question for the jury whether he did so with an 
 intent that it should come into the prosecutor's hands ; for, if so, 
 it would be a sending.'(/) 
 
 Where a prisoner was indicted under the 4 Geo. 4, c. 54, for Evidence of 
 sending a threatening letter to the prosecutor, and the only evi- sealing a 
 dence against him was his own statement that he should never 
 have written the letter but for W. Goodes ; Lord Abinger, C. B., 
 held that there was no evidence of the prisoner having sent the 
 letter ; as upon this evidence Goodes might have taken the letter 
 or might have sent it himself, having made the prisoner write it ; 
 and there was no evidence of the prisoner having directed Goodes 
 to take it. {g) 
 
 One count charged the prisoner with sending a letter to the what is an 
 prosecutrix threatening to kill her; another with uttering the uttering, 
 same letter. The prisoner was seen by a witness to put a small 
 brown paper parcel containing the letter under the table-cloth in 
 the kitchen of the house where both the prisoner and prosecutrix 
 were in service. The witness afterwards lifted up the cloth, and 
 found the parcel, and the letter in it. The witness gave the 
 parcel to the prosecutrix, to whom the letter was directed. It 
 was contended that there was neither a sending of tiie letter, nor 
 an uttering of it to the prosecutrix. It was answered that there 
 
 Afiixing a 
 letter to a 
 gate. 
 
 {d) Rex V. Paddle, 11. & R. 481. See 
 Reg. V. Burridgc, ante, p. 246. 
 
 (e) Reg. V. Griniwade, 1 Den. C. ('. 
 30, 1 C. & K. .')92. In the latter report 
 Alderson, B. , said, ' The whole act of the 
 prisoner ceased ■when he left the letter ; 
 ;ind if he left the letter with intent that 
 
 it should go on, that is a sending it ; and 
 what tlio constable did with it afterwards, 
 i think, is iniinatrrial ' 
 
 (/) Keg. c. Williams, 1 Cox, C. C. IG. 
 This would clearly be an uttering within 
 the new Act. 
 
 (g) Rex V. llowc, 7 C. & V. 268,
 
 252 
 
 Tlic indi.-t- 
 
 IIIIMlt lllllst set 
 foltll tllU 
 
 letter. 
 
 The indict- 
 ment need not 
 state the 
 ownership of 
 the property 
 attempted to 
 be extorted. 
 
 The indict- 
 ment must 
 aver from 
 ■whom the 
 money was 
 demanded, 
 and who was 
 threatened to 
 be accused. 
 
 Indictment for 
 threatening to 
 prosecute a 
 charge already 
 made, insuffi- 
 cient. 
 
 Of '/7/ri'(i(s (IikJ TlireatenuKj Letter.^. [iujok v. 
 
 wa.s a se^(liIl.<,^ or, at all ovoiits, an uttcrin).,^ as there coulil be no 
 (l<)iil)t the prisoner placed the letter on the tabh; for the purpose of 
 its rcaehini^ tlie prosecutri.x by some means; and Patteson, J., 
 held that there was no evidence of an uttering, (/t) 
 
 Jt was decided, npon reference to the judges, that it was neces- 
 sary to set forth tlu; tlireatening letter in the indictment, in order 
 that the Court might see whether it fell within the j)iu-view of the 
 respi-etive statutes. It was contended, in support of the indict- 
 mt'ut, upon whicli the point was raised, tliat it pursued thu word.s 
 of the \) Geo. 1, c. 22 (now repealed) ; that the defendant was 
 charged with sending the letter 'feloniously and contrary to the 
 form of the statute ; ' and that those words imported that the letter 
 was of such a nature as the statute had in view. But the judges 
 were of opinion that the indictment was bad in not setting forth 
 the letter itself : and that if tlie words, ' feloniously and contrary 
 to the form of the statute,' were allowed to supply the place of 
 the letter, it would be leaving it to the prosecutor to put his own 
 interpretation upon it, and to the jury the construction of the 
 matter of law. (i) 
 
 Where some counts charged the prisoner with threatening to 
 accuse the prosecutor of an infamous crime with intent to extort 
 from him a valuable security for the payment of fifty pounds, and 
 others laid the intent to be to extort money from him ; Piatt, B., 
 held that the indictment was good, though it did not allege whose 
 property the security or money was. The term ' extort ' has a 
 technical meaning, and the very import of the word shows that 
 the prisoner is not acquiring possession of his own property : and 
 in this case, whether anything is obtained or not, the crime is 
 complete, and therefore, whether the property belongs to the per- 
 son threatened or not, is quite immaterial, {j) 
 
 But the indictment must aver /ro»i u'hom the money, «S:c., wa.s 
 demanded ; and if the indictment be for threatening to accuse, 
 &.C., it must allege ^cJio was the person threatened, (/i) 
 
 An indictment on the 4 Geo. 4, c. 54, s. 5, charged that the 
 prisoners did feloniously, with intent to extort money, charge and 
 accu.se J. N. with having committed the horrible and detestable 
 crime, &c., and did feloniously, with intent to extort, &c., menace 
 and threaten to prosecute the said J. N. for the said pretended 
 ofll'ence ; it was objected that the charge contained in the indict- 
 ment was not within the terms of the 4 Geo. 4, c. 54, s. 5, which 
 applied only to threatening to accuse prospectively, and not to a 
 threat to prosecute a charge antecedently made ; and Garrow, B., 
 after consulting Burrough, J., held that the objection must pre- 
 vail. If the indictment had followed the terms of the statute, and 
 it had been proved that the prisoners had threatened to prosecute 
 
 (h) Keg. V. Jones, 5 Cox, C. C. 226. 
 Pattcson, J., took time to consider 
 whether he would reserve the question, 
 but did not do so, as lie was satisfied lie 
 was right in his opinion. It must not be 
 assumed that Patteson, J., held that there 
 was not a sending. In passing sentence 
 he said, ' Your learned counsel has stated 
 some dilhculties in point of law. I do 
 not think there are aiu/.' 
 
 (!) Lloyd's case, ante, p. 250, note (l>). 
 And the law of this case was recognized by 
 (Irose, .T., in delivering the opinion of the 
 twelve judges in Hunter's case, 2 Leach, 
 631. 
 
 (» Reg. r. Tiddeman, 4 Cox, C. C. 
 3S7. 
 
 (I) Kex r. Duuklev, P. & M. C. C. 
 
 90.
 
 CHAP. IV.] Of Threats and Threatening Letters. 
 
 J. N., the case would have been left to the jury to say -whether 
 that was not a threatening to accuse them. But the offence laid 
 in the indictment was not sufficiently charged under the statute. (I) 
 It was also held to he necessary that the indictment should 
 allege an intent of the writer in sending the letter consistent with 
 and deducible from the letter itself. In a case already mentioned, 
 where the indictment charged that the letter was sent to extort 
 money, and it appeared upon the face of the letter that it was sent 
 with the view of inducing the prosecutor to give up a bill of ex- 
 change, the judges held the allegation not to be sustained, {ni) 
 
 If the indictment state the offence of which the prisoner 
 threatened to accuse the prosecutor, it must state it correctly. 
 There were several counts in an indictment, charmns: the prisoner 
 with threatenmg to accuse the prosecutor of the crime of .sodomy, 
 and it appeared to Littledale, J., that the letter written by the 
 prisoner only imputed to the prosecutor that he had solicited the 
 prisoner to permit him to commit that crime ; he therefore directed 
 the jury to acquit the prisoner on those counts, [n) 
 
 In prosecutions under the new Act where the prisoner is 
 charged with demanding money, &c., by menaces, &c., with intent 
 to steal, it should seem that an actual or express demand by words 
 is not necessary. On indictments on the 7 Geo. 2, c. 21, for as- 
 saulting, and by menaces, &c., demanding money, &c., with 
 intent to rob, it was the better opinion that an express demand of 
 money by words was not necessary ; and that the fact of stopping 
 another on the highway, by presenting a pistol at his breast, was, 
 if unexplained by other circumstances, sufficient evidence of a 
 demand of mono}' to be left to the jury. It was observed that 
 the unfortunate sufferer understood the language but too well ; 
 and the question was put, ' Why must Courts of justice be supposed 
 ignorant of that which common cxijerience makes notorious to all 
 men?' (o) And in one case upon that Act the Court appears to 
 have considered that an actual demand was not necessary ; and 
 that whether there was a demand or not, was a fact for the con- 
 sideration of the jury under all the circumstances, {p) 
 
 The prisoner ap^jlied to the prosecutor for work, and being re- 
 fused he asked for a shilling, and being again refused, he became 
 very abusive, and threatened ' to burn up ' the prosecutor. He 
 then went into a neiglibouring stack, and knelt down close to it, to 
 strike a lucifer-match ; but, discovering that he was watched, he 
 blew out the match and went away. No part of the stack was 
 burnt : and on an indictment for attempting to set fire to the 
 stack, the jury were not satisfied that he intemlcd to set fire to the 
 stack, but they thought that he intended to extort money from the 
 prosecutor by his conduct, and an ac(piittal was directed ; but the 
 prisoner was ordered to be detained on the charge of demanding 
 property with menaces, on the ground that, assuming the finding 
 of the jury to be correct, the prisoner was liable upon such a charge 
 under tiie 1 Vict. c. 87, s. 7. {q) 
 
 253 
 
 The intent of 
 the writer 
 should be 
 alleged cor- 
 rectly. 
 
 Variance in 
 the crime al- 
 leged to liave 
 been threat- 
 ened. 
 
 Where a de- 
 mand is neces- 
 sary, an actual 
 or express 
 demand by 
 words is not 
 necessary. 
 
 Jlenaces by 
 pretending to 
 set fire to a 
 rick. 
 
 (/) Wvx r. Abgood, 2 ('. & W VM. 
 See Gill's case, 1 Lew. 305, ante, p. 
 246. 
 
 ()/i) Major's case, ante, p. 249. 
 
 (/)) Kex v. Hickman, K. k M. C. C. 
 \L 34. 
 
 [n) 1 East, r. ('. c. S, s. n. p. (17. 
 
 (p) Hex V. .lacksoii, 1 Leacli, 2'i7. 
 
 (q) H.-g. V. Taylor, 1 F. & F. .'.11. 
 Pollock, C. B. , after consulting Cock- 
 bum, C. J.
 
 254 
 
 A til real to 
 Tiiako known to 
 his iiaiixli- 
 ioncr.s aii<l 
 (ithnrs lliat a 
 clor^jvinaii lia'l 
 cnniinitti'il 
 fornication is 
 a menace. 
 It is for tlio 
 jury to (lo- 
 tt-nnino whe- 
 ther a menace 
 lias ln'cn nmdo 
 Milhout rea- 
 sonalilo and 
 probable cause. 
 
 Of Til mils (111(1 TJireatening Letters. [book v. 
 
 Tlic |>iis()iicr was indiclcd U)V dclivc riiiL,^ 1(» ( '. II. Mar.sli letters 
 (l(>ni!ui(liii<,' «tf' liini lO.OOO IVaiics, Ijcing oi' the value of 400/., with 
 iiiciiaccs and without nasoiiui^le and [>i(ili;d>lf fansc. The originals 
 in l-'iench were thus translated: — 
 
 ' 'i'lir l)cairr of this note is ignorant of all. I am in Stamford, 
 and as you have neither answered my prayers nor my threats, 1 
 have considered that it was Letter to come as far as here, for you 
 wouUl not answer me without douLt at London. I have eight 
 letters to restore to you, which arc very compromising ; for there 
 are some of them old ones. (I see the bottom of your heart.) 
 Well ! in spite of that, if 1 had not really need of money to con- 
 tinue that which 1 have commenced, which is really above my 
 means, I would not ask you anything to-day ; but it is for me a 
 question of life or death ; I must have 10,000 francs. See that 
 wdiich you have to do ! When I have told yon that I loved you, it 
 was true and sincere. Well, in spite of the hatred which I ex- 
 perience, it causes me pain to demand them of you. I return 
 entirely the promises you have made about your uncle, and wish 
 not for the future to hear speak more of you ; for with all the sac- 
 rifices that you have made for me, the heart neither being for 
 nothing, that cannot make me forget that which you have made 
 me suffer. There is my address : — 
 
 ' Hotel of the Port, Stamford. ' N. MlARD.' 
 
 ' Thursday, April 16, 1843.' 
 
 ' P.S. Recal to yourself these words, " With me peace is better 
 than w-ar." ' 
 
 ' The person w^ho carries this note to you was ignorant of all 
 yesterday ; and as I have not had an answer the person knows 
 all to-day. You may therefore answer him verbally, without fear 
 of compromising yourself further. As I am not false, I ought not 
 to let you be ignorant of that which I have the intention of doing, 
 in case you should not satisfy my demand. This is the plan which 
 I have conceived, and I swear to you I will put it in execution. 
 Firstly, I will go into your church on Easter Sunday, and, reckon- 
 ino- from that evening, I will go into your village, from cottage to 
 cottage, to inform them all of that which has passed. Afterwards 
 I Avill p-o to the magistrate at Stamford, from clergyman to clergy- 
 man at Peterborough, to all the chapter, and the bi.shop. I will 
 take afterw^ards the names of all the bishops of England, and I will 
 write to them all. From there I will go to London, and cause }-ou 
 to be inserted in all the newspapers ; afterwards I will go to find 
 the Archbishop of Canterbury, who, being equally instructed, and 
 I will o"o again to London to the magistrates, and I shall know how 
 to find Clarisse, that she may do so as well as me. I may not be 
 more rich for it ; but at least I shall be revenged for all that you 
 have made me suffer.' 
 
 ' Friday Iklorning, Standwell's Hotel, Stamford.' 
 
 'N. MlARD.' 
 
 'Yesterday I gave you my address incorrectly, but now you 
 cannot make a mistake.' 
 
 It appeared that a criminal intercourse between the prosecutor,
 
 CHAP. IV.] Of Threats and Threatening Letters. 255 
 
 who was rector of B. and a prebend of P., and the prisoner, had 
 commenced at a house of ill-fame in London, and been renewed 
 in Paris, and subsequently in London again, and tlie prisoner had 
 received at different times 1,200^. from the prosecutor. Tindal, 
 C. J., after referring to the words of the 7 & 8 Geo. 4, c. 29, s. 8, 
 applicable to the case, told the jury ' that parts of this offence have 
 been made out, is perfectly clear ; that a letter was sent by the 
 prisoner to the prosecutor making a demand of money with 
 menaces, there is no doubt ; what you will have to say therefore is 
 whether that was done without reasonable and probable cause ; for 
 it is admitted that the menaces contained in these letters are such 
 as are contemplated by the Act ; and indeed the threat of exposing 
 a clergyman, who has been guilty of great vices, in his own church 
 on the. most solemn day of the year, of publishing his conduct 
 afterwards to every rank of society in his own neighbourhood, and 
 also of spreading his disgrace more publicly still, can scarcely be said 
 to be such a threat as not to require more than ordinary firmness 
 to resist it ; and therefore, according to the proper test laid down 
 by Lord Ellenborough, {v) to be such as not to fall within the 
 meaning of this Act. But the main defence is that there was some 
 just and reasonable ground for the demand made in this case, or that 
 the prisoner at least truly and honestly believed that she had just 
 and reasonable cause for making it ; and that is the view which I 
 recommend you to take in applying this evidence. Ask yourselves 
 the question whether this demand was made at a time when the 
 party making it really and honestly believed that she had good and 
 probable cause for making it.' (s) 
 
 The prisoner was indicted for demanding money with menaces What are suffi- 
 from J. Bradshaw, and a second count charged a larceny of money, cient menaces. 
 J. Bradshaw owed Stainforth upwards of two pounds for rent, and 
 his agent signed an authority to Oldfield, a bailiff, to make a dis- 
 tress for that rent. The agent's clerk went with the warrant to Old- 
 field's deputy, and they and the prisoner, a self-appointed bailiff, 
 went to Bradshaw's house, which was locked up. The authority 
 was I'eturned to Oldfield, who gave no instructions or authority to 
 the prisoner to proceed in the matter of the distress ; afterwards 
 the prisoners went to Bradshaw's house, and demanded the rent 
 due to Stainforth, stating that if it was not paid they had a warrant 
 from a magistrate, and would break open the door and make the 
 distress ; but that if Bradshaw would pay them five shillings and 
 sixpence for expenses, and sign an I O U for the debt, payable by 
 instalments, they would be satisfied. One of the prisoners shook 
 the door of the house. Bradshaw hesitated, and one of the 
 prisoners left and returned with a policeman. Notliing was said 
 as to what the policemen was to do. The policeman did not 
 speak to Bradshaw. The policeman had only been told that the 
 prisoners had a distress to make. After the appearance of the 
 policeman Bradshaw agreed to pa}'^ the five shillings and sixpence, 
 and paid them that sum. He believed that they had authority to 
 distrain. It was objected that no such nienacc as was contem- 
 plated by the 24 & 25 Vict. c. 96, s. 45, was proved, and as to the 
 
 (r) In liexr. Soutlicrtoii, G East, 126, The ovidoncc on which the question was 
 ante, p. 232. left to the jury is not statctl. See K. r. 
 
 [s) Fveg. V. Jliard, 1 Cox, Q. C. 22. Chalmers, 10 Cox, C. C. 450.
 
 256 Ofy'/n-cafs and Tltrcutcni nfj Letters. [book v. 
 
 rgcoikI coiiiit tli.it, if jiiiy oflence was ])n;vc'(l, it was (i])taining money 
 l)y falsi- pretences. The ol)jec;ti(nis were overruled, and the jury 
 were told lliat tlie wolds and eonduct of the prisoners, if they be- 
 lieved the facts, constituted a nienaee within tin; nieaniiiL,' of the 
 statute. The jury said that they considered the statement made 
 by the ])ri.soners that tiicy had a Avarrant signed by a magistrate 
 (which was untrue), supported by tlieir procuring a policeman to 
 givi! them a sup])Osed authority to break into the house, and show- 
 ing the intent by violently shaking the door, was a menace within 
 the meaning of the Act, and found both prisoners guilty generally ; 
 and, on a case reserved, Wilde, B., after argument, delivered 
 judgment. 'The ([ucstion turns upon the proper construction of 
 the 24 & 25 Vict. c. 9G, s. 45. There are many demands for money 
 or property accompanied by menaces or threats, which are obviously 
 not criminal nor intended to be made so. Thus in a ca.se of dis- 
 ])uted title to personal ])ropcrty, a man may threaten his opponents 
 with personal violence if he does not relinquish the subject of the 
 dispute, and he would not be witlnn the intention of the statute, {t) 
 Other instances would offer themselves to a little consideration. 
 Where, then, is the proper limit to the operation of this section ? 
 It is to be found in the words " with intent to steal." There is 
 no other restriction expressed. Nothing is said about " violence "' 
 in conjunction with menaces, still less of violence to the person as 
 distinct from violence to property. There is no express limit, 
 except in the words " with intent to steal." Now a demand of 
 money with intent to steal, if successful, must amount to stealing. 
 It is impossible to imagine a demand for money with intent to 
 steal, and the money obtained upon that demand, and yet no 
 stealing. (?',) The question then arise.s, Avhat are the incidents 
 attending the procurement of money or property by menace or 
 threats necessary to constitute stealing? It is said in East, (t') 
 " the taking must in all cases be against or without the consent of 
 the owner to constitute larceny or robbery." On the other hand, 
 it is said at the same place, " a colourable gift, which in truth was 
 extorted by fear, amounts to a taking and a trespass." These two 
 passages, when taken together, appear to define the offence of 
 stealing in the case of menaces. For if a man is induced to part 
 with property through fear or alarm, he is no longer acting as a 
 free agent, and is no longer capable of the consent above referred 
 to. Accordingly, in the cases cited in the argument, (ic) the 
 threatened violence, whether to person or property, was of a 
 character to produce in a reasonable man some degree of alarm or 
 bodily fear. The degree of such alarm may vary in different cases. 
 The essential matter is that it be of a nature and extent to un- 
 settle the mind of the person on whom it operates, and take awa}' 
 from his acts that element of free voluntary action which alone 
 constitutes consent. Now to apply this principle to the present 
 
 {t) This is a faulty illustration. The thereby obtains the money, this is clearly 
 
 case would not be within the statute be- no larceny. C. S. G. 
 cause there would be no intention to (r) 2 East, P. C. e. 16, s. 3, p. 555. 
 
 steal, however Tioleut the menaces might («) Rex r. I'arfait, 1 East, P. C. c. 
 
 be. C. S. G. 8, s. 11, p. 416. Simons' case, 2 East, 
 
 (it) This is a manifest error. If a man P. ('. c. 16, s. 131, p. 731. Taplin'scase, 
 
 makes a frivolous demand of money 2 Eiist, P. C. c. 16, s. 128, p. 712. 
 without any pretence for the demand, and
 
 CHAP. IV.] Of Threats and Threatening Letters. 
 
 case a threat or menace to execute a distress warrant is not neces- 
 sarily of a character to excite either fear or alarm. On the other 
 hand, the menace may be made with such gesture and demeanor, or 
 with such unnecessarily violent acts, or under such circumstances of 
 intimidation as to have that eifect ; and this should be decided by 
 the jury. Now in this case there was evidence very proper to be 
 left to the jury to raise the above question. But the chairman 
 left no such question to them, and directed them as a matter of 
 law that the conduct of the prisoners (if believed) constituted a 
 menace within the statute. Our judgment that this conviction 
 cannot be sustained, is founded entirely on this ground, (a*) 
 
 If a person with menaces demanded a sum of money from 
 another, and that other did not give it him, because he had it not 
 with him, it was within the 7 & 8 Geo. 4, c. 29 ; but if the person 
 demanding the money knew that the money was not then in 
 possession of the party, and only intended to obtain an order for 
 the payment of it, it was otherwise, (y) 
 
 The first count charged the prisoner with accusing the prosecu- 
 tor of having made a solicitation to him, whereby to induce him to 
 
 commit with the prosecutor the crime of b , with a view to 
 
 extort money from the prosecutor. The second count charged the 
 prisoner with having accused the prosecutor of having made a 
 solicitation to him, whereby to induce him to permit the crime of 
 
 b to be committed by the prosecutor. About half-past ten 
 
 at night the prisoner, dressed in a soldier's uniform, accosted the 
 prosecutor as he was passing down Hemming's Row, endeavoured 
 to whisper to him, and stooped and asked what hour it was, and, 
 receiving for answer, ' I don't know exactly, but it is past ten,' 
 attempted to whisper several times again, but, the prosecutor 
 drawing back, what the prisoner said in such whispers was in- 
 audible. The prisoner followed the prosecutor for a considerable 
 time, through Green Street, Leicester Square, Panton Street, into 
 Jermyn Street, and into the Haymarket, Piccadilly, and the Regent 
 Circus, and when asked by a person, who interfered for the pro- 
 tection of the prosecutor in Piccadilly, ' What do you mean by 
 annoying this gentleman ? ' the prisoner replied, ' I know what I 
 mean.' The prosecutor on getting into Regent Circus applied to 
 a policeman to take the prisoner in charge for following and annoy- 
 
 1^0/ 
 
 {x) Reg. t;. AValtoii, L. & C. 288. No 
 notice was taken of the question raised 
 on the second count. This decision re- 
 quires reconsideration, as it obviously 
 proceeds upon the, fallacy of supposing it 
 necessary that the menaces sIkiuM he 
 such that if property were obtained by 
 theni the offence would bo larceny. Now 
 the words of the clause warrant no such 
 construction. The words arc ' whosoever 
 .shall by menaces, or by force, demand 
 any projjerty, &c., with intent to steal the 
 same.' Any menaces or any force, 
 therefore, clearly satisfy the terms of the 
 clause, provided there be i-.n intent to 
 steal. It might just as well be said that, 
 on an indictment for an assault with in- 
 tent to rob, or for wounding with intent 
 to murder, it was necessary to prove such 
 an assault in the one case, or such a 
 
 VOL. III. 
 
 wounding in the otlier, as would be suffi- 
 cient to effectuate the intent, and yet it 
 has never Ijeen doubted that any assault, 
 however slight, or any wound, however 
 trivial, was suflieient, pruvidid the in- 
 tent were proved. In truth the crimina- 
 lity in these cases de])ends on the intent. 
 The eifect of this decision is to render 
 the clause almost ino]>erative ; for where 
 the menaces have not obtained tlie money, 
 it is plain ajury will be very reluctant to 
 find that they were suflieient to obtain it. 
 'J'lie whole olfcncc consists in the acts and 
 intent of the jirisoner ; and it is (juite 
 beside that to consider wliat the effect on 
 the prosecutor might be. See Keg. r. 
 Kobertson, infra. ('. S. (J. 
 
 (y) Hex V. Edwards, 6 C. & P. 51.''). 
 Bosanquet and Pattcson, Js. 
 
 If money be 
 demanded 
 with menaces, 
 that is suffi- 
 cient, though 
 the party 
 menaced have 
 no money with 
 him. 
 
 As to the 
 sutficiency of 
 evidence to 
 prove an ac- 
 cusation of an 
 infamous 
 crime.
 
 258 ^ V Threats and Tkreatenln() Letters. [book v. 
 
 ing him, and at tlio same moment the prisoner ran up, and said, 
 '1 char"-(! this ])erson with making an indecent assault on my 
 person.' He afterwards exphiined this by stating, 'Tiiisman came 
 up to me in Orange Stre(;t, wlierc I was standing at a watering- 
 place making water, and, putting his hand round a stone, which 
 stood between me and an adjoining urinal, took hold of my private 
 parts.' The same charge was preferred at the station-house, and 
 also before the magistrate, with the addition given in italics below. 
 The prisoner's charge before tlie magistrate Avas as follows : — 
 'Between ten and eli'vcn o'clock last night I was proceeding to- 
 wards my barracks down Orange Street. I had occasion to stop at 
 a watering-place : while so doing the defendant (prosecutor) came 
 into an adjoining watering-place ; there is a partition ; he looked 
 round at me ; then he put his hands round and caught hold of my 
 
 private parts. / said, " What do you mean by that, you d d 
 
 old scoundrel ? " He made ansiuer, " Don't nudce a noise for 
 God's sake," and left the i^lace immediately. I followed him. He 
 went into a tobacconist's shop ; he came out in two or three 
 minutes, caught hold of a young man's arm, and they walked on. 
 He said to me, " Which w^ay are you going ? " I made him no 
 answer. He stopped, and said, "I am going the reverse way to 
 you." He turned round to the right ; I still followed him ; he 
 stopped, and asked me what I w^as following him for. I told hira 
 1 wanted to get a constable ; he turned back again ; I followed 
 him to Regent Circus, when I gave him in charge.' On cross- 
 examination he said, 'I made a charge on the 12th of July last 
 against a gentleman named Williams of a similar nature. I never 
 made any other charge of this sort against any person ; I have 
 never been summoned to appear against Williams.' According to 
 the evidence the prosecutor had not been in an accommodation- 
 place that evening wnth the prisoner or any other person, but being 
 followed by the prisoner, and observing a cigar shop, he inquired 
 where he could find a policeman ; the prisoner was at that time 
 looking in at the window of the cigar shop, and afterwards con- 
 tinued his annoyance to the prosecutor by following him when he 
 came out of the shop. A young man upon this volunteered his 
 protection to the prosecutor, and put the question before mentioned 
 to the prisoner. The jury convicted, and, upon a case reserved 
 upon the question whether there was sufficient evidence to go to 
 the jury, and to sustain the verdict on the said two counts, which 
 alleged a solicitation to commit a capital offence in the express 
 terms of the statute, the prisoner's counsel contending that the 
 evidence only proved a charge of an indecent assault, the judges were 
 unanimously of oiDinion that, if the charge were confined to the 
 charge before the magistrate, it could not be wdth intent to obtain 
 money. But five of the judges (c) thought that the previous 
 conduct of the prisoner, coupled with the charge (before the magis- 
 trate) was sufficient evidence for the jury to convict the prisoner 
 on this indictment. Seven of the judges {a) thought otherwise. (6) 
 
 (s) Lord Denman, C. J., Tindal, C. J., (h) Reg. v. MidcUeditcli, 1 Don. C. C. 
 
 Erie, J., Wightmau, J., and "Williams, 92. There was a third count, which 
 
 J. merely charged the prisoner with accu- 
 
 {a) Pollock, C. B., Aldcrson, B., Eolfe, .^ing the prosecutor ol a certain infamous 
 
 B., Coltman, J., Patteson, J., Coleridge, crime with intent to extort money ; as to 
 
 J., and Cresswell, J. which the prisoner's counsel contended —
 
 CHAP. IV.] Of Threats and Threatening Letters. 
 
 On a count charging the prisoner with having accused H. C. S. 
 of having solicited him to commit an infamous crime, it appeared 
 that the prosecutor had taken shelter from the rain under a portico 
 of Buckingham Palace, and that the prisoner, who Avas a sentry 
 on duty there, after some conversation, had seized the prosecutor and 
 charged him Avith having indecently touched or assaulted him, and 
 then took him to the guard-house and said, ' I charge this man 
 with indecently assaulting me.' When the case was heard before 
 the magistrate the prisoner stated that the prosecutor caught hold 
 of his private parts. It was contended that this was a charge of 
 assault and not of solicitation ; and as the Act had both ' assault ' 
 and ' solicitation,' they were intended to be different things : the 
 one an act done ; the other a solicitation, in its strict sense. 
 Cresswell, J., ' Suppose the case of an assault with intent to com- 
 mit a rape ; that means an assault made with an intention to use 
 force and to commit a rape if possible : but it often happens that 
 a very indecent assault is committed with no inteution of resort- 
 ing to further violence, if resistance is offered, but merely in the 
 hope that the woman's scruples may be overcome. Now, supposing 
 that a man's soliciting a woman to yield her person to him was an 
 offence, might not such an indecent assault, committed for such a 
 purpose, be treated as a solicitation, in case the evidence fell 
 short of proving an attempt to commit a rape ? In short, may 
 there not be a solicitation by deeds as well as by words ? ' And 
 after holding that neither the charge made at the guard-house nor 
 before the magistrate could be taken into consideration, because 
 neither could have been made to extort money ; Cresswell, J., 
 said, ' I think that, although the prisoner charged the prosecutor 
 in terms with an assault, throughout the transaction and after- 
 wards, yet it was with an assault of such a character and made 
 under such circumstances that it might be taken to mean a so- 
 licitation. It is a question which the jury must determine.' (c) 
 
 One count charged Braynell and Wren with threatening to 
 accuse the prosecutor of an assault with intent to commit an 
 abominable crime ; another of an attempt to commit such a 
 crime; two others of a solicitation to commit and permit, &c. 
 Four other counts alleged that the prisoner did accuse the pro- 
 secutor as in the first four counts, and the last charged the pri- 
 soner with a demand of money, with menaces, &c. The prosecutor 
 was looking into a shojj-window, and felt some one press against 
 him, and, on looking round, saw Braynell, who a moment after- 
 wards pressed his private parts against the prosecutor's hand. He 
 immediately walked away, and Braynell followed him, and asked 
 what he meant by taking indecent liberties with him. Wren was 
 
 259 
 
 Evidence of a 
 solicitation to 
 commit a 
 crime. 
 
 It is for the 
 jury to decide 
 wliat the ac- 
 cusation was 
 which the pri- 
 soner intended 
 to make. 
 
 Ex.iminations 
 before the 
 justice are ad- 
 missilile, but 
 not cross- 
 examinations. 
 
 whether in arrest of Judgment or not 
 does not appear — that it was insullicient ; 
 for tluit, althougli the legislature had de- 
 fined what it includes under the terms 
 ' infamous crimes,' yet this did not ex- 
 cuse the prosecutor from particularising 
 the specilic charge. The report does not 
 expressly state the decision of the re- 
 corder upon this point, but it seems that 
 he must have held the objection good ; 
 as he reserved for the opinion of the 
 judges the further question, * whether a 
 
 general Judgment ujinn the finding of 
 the Jury on the whole indictment is ren- 
 dered void or voidable by the insufiicient 
 statement of the offence charged in the 
 third count;' but the decision of the 
 other (jucstion rendered it unnecessary to 
 consider this question. 
 
 (c) Keg. v. Cooper, 3 Cox, C. C. 547. 
 See this case, ante, vol. 2, )). Ill, as to 
 the a<lmissibility of a previous charge 
 made by the prisoner against another 
 person.
 
 260 
 
 It is for the 
 jury to deter- 
 mine whether 
 there was an 
 intent to ex- 
 tort. 
 
 Evidence as 
 to what the 
 prosecutor 
 
 <>/■ Threats and Thveaten'mrj Lcffrrs. [rook v. 
 
 ihon present. The prosecutor denied that lie liatl done wliat was 
 allet'ed. liraynell said, ' J)o you think tliat I wouhl allow you to 
 do That for nothing ? * He then asked what the prosecutor would 
 stand, and suggested that they should go into a public-house to 
 settle it. The prosecutor refu.sed. Braynell said he must take the 
 conse([uences. TIk^ prisoner shortly afterwards gave the pro.secutor 
 into the custody of a policeman who. came up, and he was taken 
 to the station, where Braynell signed the following charge : ' Inde- 
 cently assaulting J. Braynell at Hemming's Row,' &c. Wren signed 
 it as a witness. The next day the prisoners were examined as 
 witnesses before a magistrate, when the charge was gone into, and 
 were cross-examined in the absence of each other, and the charge 
 dismissed. Williams, J., held that the examinations in chief of the 
 prisoners were admissible in evidence against them, as they were 
 then under no charge, and were not bound to say anything to 
 criminate themselves. The cros.s-examination of Braynell was 
 principally directed to ascertain how he had employed himself, and 
 whether he and Wren had been together on the day in question ; 
 and his answers were not only contradictory in themselves, but 
 quite inconsistent with those of Wren, when he was afterwards 
 cross-examined. ((J) Williams, J., held that the cross-examinations 
 were not admissible. It was no doubt most material that these 
 questions should have been asked before the magistrate, becau.se 
 it was most important to a.scertain the amount of credit to be 
 attached to the evidence of the prisoners, but no .such connection 
 between these answers and the particular charge in this indictment 
 could be perceived as would justify their being held to be 
 relevant, (e) It was then objected that the evidence did not 
 support the first eight counts, as the evidence only showed a 
 charge of an attempt to commit an indecent assault. But 
 Williams, J., held that it was for the jury to say, judging from the 
 prisoners' whole conduct, what was the accusation that they in- 
 tended to make. (/) 
 
 Where the prisoner was indicted for sending a letter to the pro- 
 secutor threatening to accuse him of an infamous crime with 
 intent to extort money, Martin, B., told the jury that the question 
 for them to determine was whether the prisoner intended to extort 
 money, and that it was nothing that he denied it, if his own acts 
 and conduct, and his meaning, as indicated by his letters, plainly 
 proved that such was the real object. That was the sole question : 
 the truth of the charge did not matter, (g) 
 
 The prisoner was indicted for sending to the prosecutor the fol- 
 lowing letter, threatening to burn and destroy his houses, &c. : — 
 
 (d) Williams, J., looked at the depo- 
 sitions to ascertain the nature of the 
 cross-examinations. 
 
 (c) "With all deference this ruling 
 seems to be erroneous. The material 
 question on the trial of this indictment 
 was whether the j)risoners had inadc a 
 false charge, and it was most material to 
 ascertain all that they had said, which 
 showed their evidence before the magis- 
 trate to be false. If they had made the 
 same statements elsewheit, it cannot be 
 
 questioned that they would have been 
 evidence, and their being made before the 
 magistrate could make no difference, 
 unless there had been any such undue 
 influence used as would exclude them. 
 The trutli of the evidence of the pri- 
 soners in chief was just as much in issue 
 before the jur}' as before the magistrate. 
 C. S. G. 
 
 (/) Reg. V. Braynell, 4 Cox, C. C. 
 402. 
 
 (gr) Reg. r. Menage, 3 F. & F. 310.
 
 CHAP. IV.] Of Threats and Tlireatening Letters. 
 
 2G1 
 
 'Sm, 
 ' This is to inform you that you are better not let your farm to 
 any of your family ; if you do, you will suffer as before. You know 
 how feelt the other day. 
 
 ' A Caution Friend.' 
 
 It was proposed to ask the prosecutor what he considered w^as 
 the meaning of the letter, and on this being objected to, Erie, J., 
 said, it appeared to him that the answer to the question was ad- 
 missible. The offence intended by the statute was a threat to 
 burn the premises, and that threat must be in writing, and the 
 thing intended to be prevented w^as the misery occasioned to the 
 party who had received the intimation that his premises would 
 have the calamity of fire brought upon them. Unless the law 
 went so far as to make it punishable to create that fear by any 
 language the author knew would create that fear, the law would 
 be powerless. The very fact of saying ironically, ' I don't say 
 you are a thief,' could be expressed in such way as to make any- 
 body understand that the party meant to make that charge ; and, 
 although there might be no single word in the letter which by 
 itself would appear to mean so to a stranger, yet the party 
 receiving it would perfectly well understand it. The jury must 
 be satisfied that when he wrote those words — ' You will sufifer as 
 before' — the writer intended to create in the mind of the party 
 receiving the letter the fear that his house would be burnt 
 down. Evidence might be offered that, under the particular cir- 
 cumstances, the words had not their ordinary meaning, but the 
 meaning imputed to them upon the record, and therefore the 
 witness might be asked whether he understood the meaning to be 
 that Avhich the record imputed, {h) 
 
 The 9 Geo. 1, c. 22, provided that offences against that Act 
 might be tried in any county of England ; but no such provision 
 being made with respect to offences within the other repealed 
 statutes, the trial of such offences was governed by the general 
 rule. Upon this rule the trial might be in the county in which 
 the prosecutor received the letter by the post, though delivered 
 by the prisoner and put into the post in another county, {i) And 
 it seems that the offender might be tried in the county in which 
 he sent the letter, though the prosecutor received it in another 
 county. The offence of sending a threatening letter, would seem 
 
 understood the 
 letter to mean. 
 
 The prose- 
 cutor may be 
 asked what he 
 understood the 
 meaning of the 
 letter to be. 
 
 Place where 
 the offence may 
 be tried. 
 
 Qi) Reg. V. llendy, 4 Cox, C. C. 243. 
 Mr. Moody gave me this note of this 
 case : an indictment averred that a fire of 
 certain premises of the prosecutor had 
 taken jjlacc, and that the ])risoner sent 
 a letter threatening to burn the liouse, 
 &c., of tlie jiroseculor, which was set out, 
 and to the words, ' you shall suller as 
 before ' added, ' meaning the said fire ; ' 
 and Eric, J., allowed the prosecutor to bo 
 asked ' what meaning he, at the time he 
 received the letter, put on these words l ' 
 C. S. G. 
 
 (0 Gird wood's case, 1 Leach, 142. 2 
 East, V. v. c. 23, s. 4, p. 1120, an/c, p. 
 240, where the letter was received by the 
 
 prosecutor in Middlesex, and the trial 
 had in that county, though the letter was 
 delivered by the prisoner to a woman in 
 Jjondon, and by her put into the oflicc, 
 whicli was also in Loiulon. Esser's case, 
 2 Hast, r. C 0. 23, s. 7, \\ 11 2o, where 
 the ollcnce was laid in iliddlescx, though 
 the letter was dated from Maidstone, in 
 Kent, and sent by the jiost from .Maid- 
 stone ; and Lord Mansfield held that as 
 the letter was ilirected to the prosecutor 
 in Middlesex, where it was delivered, 
 that was a sending in Middlesex, and 
 that the whole was to be considered as 
 the act of the defendant to the time of 
 the delivery in that county.
 
 '2G-2 
 
 Post-oflico 
 marks. 
 
 On an indict- 
 ment for send- 
 ing IX tlireat- 
 cniiig letter, 
 the jirisoner's 
 declarations 
 of tlic meaning 
 of the letter 
 arc admissible 
 in evidence. 
 An indictment 
 on the 4 
 Geo. 4, c. 54, 
 for sending a 
 letter threat- 
 ening to 
 accuse of an 
 infamous 
 crime, need not 
 have specified 
 such crime, for 
 the sjiccific 
 crime the 
 prisoner 
 threatened to 
 charge might 
 intentionally 
 be left in 
 doubt, (m) 
 
 Of Threats and Threatening Letters. [book v. 
 
 to bo complete, as far a.s depends on tlio offender, by his putting 
 the letter into the po.st-officc to go into another county ; though 
 the party to whom it is sent afterwards receives it in the latter 
 county, {j) The po.st-office marks in town or country, proved to 
 be such, are evidence that the letters on whicli they appear were 
 in the office to which those marks belong at the dates which the 
 marks specify ; {h) but a mark of double postage paid on any 
 such letter is not of itself evidence that the letter contained an 
 inclosurc. (l) 
 
 The prisoner was tried for feloniously sending to J. S. Tucker 
 the following letter, Avith intent to extort money from the said 
 J. S. Tucker : — 
 
 'Sir, 
 ' You perhaps did not expect to hear from me so suddenly ; but 
 when you turned me away from Laytonstone for a mere trifle 
 (that too at a time when by the late failures many scores of clerks 
 were out of employ), you forgot that I had you in my power 
 through your transactions with me five nights following (I have 
 the dates and circumstances on paper written at the time), and that 
 from your conduct to me before I went to live with you, you could 
 expect no mercy from me. Did you not, however, let it pass ? 
 In a few words, I have taken advice upon the subject, and know 
 that, if you are obstinate, it is in my power to bring down ruin 
 on your head, and infamy on your name. However, I will be 
 merciful. Allow me to return to L. in the same manner as before. 
 I will never mention it again, as if I did I should lose everything, 
 and gain nothing ; but it is impossible for me to get any situation 
 in town at present. It is not true that ]\lrs. T. advertised, as you 
 said ; she is in great distress, and she is my mother, therefore I 
 Avould wish to afford her a little relief, if possible ; so send me 
 five pounds to my address, which, with the other you lent me, I 
 will I U for, and pay when I get a place. If I do not hear 
 from you by Saturday morning, you will hear of it (enclosing five 
 pounds). Now, consider ruin and beggary on one side, and wealth 
 and comfort on the other ; remember that, if you are obstinate, it 
 will cost you all ; do as I say, it will cost you nothing. I wait 
 your answer before I proceed. As yet, I have given Mr, Norris no 
 names. On Saturday night (if you are silent) I will go too far to 
 retract. 
 
 ' Your's obedientl}", 
 (Signed) ' Ja:hes Tucker, Junr.' 
 
 The second count charged the prisoner with threatening to 
 accuse the said J. S. Tucker of a certain infamous crime, viz., with 
 attempting and endeavouring to commit the abominable crime of 
 sodomy witii the said J. S. Tucker, with the same intent. The 
 third count charged him with threatening to accuse the said J. S. 
 Tucker of an infamous crime, with the same intent. The fourth. 
 
 (;■) 2 East, P. C. c. 23, s. 7, p. 1125. 
 Burn. Just. tit. Lettfr. And see now the 
 7 Geo. 4, c. 64, s. 12, vol. 1, p. 5. 
 
 (k) Perkins's case, 1 Lew. 99, Park, 
 J. A. ,T. Kex V. Burdett, 4 B. & A. 95. 
 
 \0 Kex V. Plumer, K. & R. 264. 
 
 (m) This is the marginal note to the 
 case in R. & il. C. (.'. R., but it does 
 not appear that any such point was re- 
 served or decided, although such a point 
 might have arisen on the third and sixth 
 counts. C. S. G.
 
 CHAP. IV.] Of Threats and Threatening Letters. 263 
 
 fifth, and sixth counts were the same as the former, except that 
 the letter was called a paper-writing, and the direction omitted. 
 The third and sixth counts did not describe the specific crime, but 
 alleged, generally, an infamous crime. All the counts concluded 
 against the statute, &c. The prosecutor, after proving the letter 
 in question, said, that on the Saturday following the Thursday on 
 which he received tlie letter, he saw the prisoner at a public-house 
 in the Strand, and that he, the prosecutor, asked him what he 
 meant by sending him that letter, and what he meant by ' trans- 
 actions five nights following.' The prisoner said that the prose- 
 cutor knew what he meant. The prosecutor denied it ; and the 
 prisoner afterwards said, 'I mean by taking indecent liberties 
 with my person.' The prisoner, in cross-examination, asked the 
 prosecutor whether on his oath he could deny that he did take 
 indecent liberties with his (prisoner's) person. The prosecutor 
 said he never did. Alexander, C. B., submitted the following 
 question to the judges, whether parol evidence to explain the 
 letter was properly received ? Adding, that without it the pri- 
 soner could not have been convicted, and that by his cross- 
 examination he in effect repeated the charge. And all the judges 
 (except Littledale, J., who was absent), were unanimously of 
 opinion that such evidence was properly received, and that the 
 conviction was proper, (n) 
 
 Where an indictment contained three counts, each charging the Prior and 
 
 sending of a different threatening letter, Byles, J., held that the w^"'"^"*^^* u„ 
 =» 1 ■ 1 1 1 T letters may be 
 
 prosecutor must elect on which count he would proceed, though given in evi- 
 
 any letter leading up to or explaining the letter on which the trial dence. 
 
 proceeded would be admissible, (o) 
 
 The cases in the Chapter on Robbery may occasionally .be re- 
 ferred to with advantage in cases falling within this Chapter. (^3) 
 
 The Court will, after the bill is found, upon the ai^plication of 
 the prisoner, order the letter to be deposited with an officer, in 
 order that the prisoner's witnesses may inspect it. (q) 
 
 {n) Rex V. Tucker, E. & M. C. C. K. are equivocal, connect with thorn what 
 
 134. We have seen that it has been was afterwards said by the prisoner wlien 
 
 held, on the trial of an indictment for taken into custody. Keg. v. Kain, S C. 
 
 threatening to accuse a person of an & P. 187, vol. 2, p. 110. 
 abominable crime, that the jury need not {o) lieg. v. Ward, 10 Cox, C. C. 42. 
 
 confine themselves to the consideration {/j) Kobinson's case, p. 239. 
 
 of the expressions used before the money (q) Hex v. Harris, 6 0. & P. 105, Lit- 
 
 was given, but may, if those expressions tledale, J., and BoUaud, B.
 
 2G4 
 
 CHAPTER THE FIFTTF. 
 
 OF BIGAMY. 
 
 Present 
 enactment. 
 
 Offence may be 
 dealt with 
 where otiender 
 shall be appre- 
 hended. 
 
 Not to extend 
 to second 
 marriages, &c., 
 herein stated. 
 
 The offence ot'liaviiig a ])lui;ilily of wives at tlie same time i.s 
 more correctly denominated i>ol!j<J<iriiy : but, the name hlcjuiuy 
 liaving been more frequently given to it in legal proceedings, it 
 may perhaps be a means of more ready reference to treat of the 
 offence under the hitter title, {a) Originally this offence was con- 
 sidered of ecclesiastical cognizance only; and though the 4 Edw. 1, 
 stat. 3, c. 5, treated it as a capital crime, it appears still to have 
 been left of doubtful temporal cognizance, until the 1 Jac. 1, c. 11, 
 declared that such offence should be felony. 
 
 The provisions of this statute were in several respects defective. 
 A person whose consort had been abroad for seven years, though 
 known to be living, might have married again with impunity. 
 And so might a person who was only divorced a inensd et thoro. 
 The f) Geo. 4, c. 81, therefore repealed the statute of James, and 
 that Act is repealed by the 24 & 25 Vict. c. 95. 
 
 By the 24 & 25 Vict. c. 100, s. 57, ' Whosoever, being married, 
 shall marry any other person during the life of the former husband 
 or Avife, whether the second marriage shall have taken place in 
 England or Ireland or elsewhere, (6) shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the 
 Court, to be kept in penal servitude for any term not exceeding 
 seven years and not less than three {hh) years, — or to be imprisoned 
 for any term not exceeding two years, with or without hard 
 labour, (c) and any such offence may be dealt with, inquired of, 
 tried, determined, and punished in any county or place in England 
 or Ireland where the offender shall be apprehended or be in cus- 
 tody, in the same manner in all respects as if the offence had been 
 actually committed in that county or place. Provided that nothing 
 in this section contained shall extend to any second marriage con- 
 tracted elsewhere than in England and Ii'eland by any other than 
 a subject of her Majesty, or to any person marrj-ing a second time 
 whose husband or wife shall have been continually absent from 
 such person for the space of seven years then last past, and shall 
 
 («) Bigamy, in its proper signification, 
 is said to mean only being twice married, 
 and not having a plurality of wives at 
 once. According to the canonists, bigamy 
 consisted in marrving two virgins succes- 
 sively one after the death of the other ; 
 or in once marrying a widow. 4 Blac. 
 Com. 1G3. note (b). " Ami see Bac. Abr. 
 tit. Bitjamy, in the notes. 
 
 (6) See 1 Hale, 692, 693 ; 1 East, P. C. 
 c. 12, s. 2, p. 465 ; R. r. Topping, Dears. 
 C. C. 647. 
 
 {lb) Not less than five years if the 
 offence was committed after the 25th of 
 July, 1S64. See vol. 1, p. 73. 
 
 (f) As to principals in the second de- 
 gi'ce, accessories, and hard labour, &c., 
 see vol, 1, pp. 178, SO, SI.
 
 CHAP, v.] 
 
 Exceptions in the Statute. 
 
 265 
 
 not have been known by such person to be living within that time, 
 or shall extend to any person who, at the time of such second mar- 
 riage, shall have been divorced from the bond of the first marriage, 
 or to any person whose former marriage shall have been de- 
 clared void by the sentence of any Court of competent juris- 
 diction.' (d) 
 
 The proviso in the new statute contains exceptions in respect 
 of four cases, in which a second marriage is no felony within the 
 statute. 
 
 The first exception is that the statute shall not extend ' to any 
 second marriage contracted elsewhere than in England and Ireland 
 by any other than a subject of her Majesty.' 
 
 The second exception is that it shall not extend to ' any person 
 marrying a second time, whose husband or wife shall have been 
 continually absent from such person for the space of seven years 
 then last past, and shall not have been known by such person to 
 be living within that time.' {dd) 
 
 Where there has been such absence, the burden of proof is not 
 upon the prisoner to shew that it was not known to him or her 
 that the wife or husband was living within such time. On an in- 
 dictment for bigamy, it was proved that the prisoner and his wife 
 had lived apart for seven years, and that the prisoner then married 
 again. There was no evidence of the prisoner's knowledge of the 
 existence of his first wife at the time he married again. The pri- 
 soner was convicted. Held, that the burthen of proof that the 
 prisoner did not know that his wife was alive at the time he con- 
 tracted the second marriage was not on the prisoner, and that the 
 conviction could not be sustained, (e) 
 
 There has been some doubt as to whether if the prisoner had at 
 the time of the second marriage a reasonable and honest belief that 
 his wife was dead (although she had not been absent for seven 
 years) he could be convicted. It was ruled that he could not be 
 convicted by Martin, B., ( /) and by Cleasby, B. {g) But Brett, J., 
 after consulting with Willes, J., decided that a 6o7ia ^cZe belief that 
 the wife was dead was no defence, {h) 
 
 The prisoner was convicted of bigamy. The first marriage was 
 with Victor, in the year 1886. The second marriage was with 
 Lumley, on the 9th of July, 1847. The prisoner lived with Victor 
 till the middle of 1843, when they separated, and from that time 
 no more had been heard of him. There was no evidence as to his 
 age. The judge at the trial directed the jury that it was a pre- 
 sumption of law that Victor was alive at the time of the second 
 marriage. Held, that there was no presumption of law that life 
 continued for seven year.s, or for any other period after tlie time of 
 
 Exceptions 
 
 Lst. Second 
 marriage out 
 of England and 
 Ireland by- 
 other than 
 subjects of this 
 realm. 
 
 2nd. Where 
 husband or 
 wife .shall be 
 absent for 
 seven years, 
 and not known 
 to be living. 
 
 {d) This clause is taken from the 9 Geo. 
 4, c. 31, s. 2-2, and 10 Geo. 4, c. 34, s. 26 
 
 {dd) Sec 1 Hale, 693. 3 lust. 88. 4 
 Blac. Com. 164. 1 East, P. C. c. 12, s. 3, 
 p. 406. Peg. V. Cullcn, 9 C. & P. 681 ; 
 K. V. JoiU's, C. & M. 614 ; R. v. Briggs, 
 Dears. & B. C. C. 98 ; 26 L. J. M. C. 7. 
 
 (e) P. v. Curgiirvven, 3.5 L. .T. II. C. 
 58 ; L. P. 1 C. C. P. Sec P. v. lleaton, 
 3 F. & F. 819. 
 
 (/) P. r. Turner, 9 Cox, C. C. 145. 
 
 ((j) P. r. Uorton, 11 Cox, C, C. 6/0. 
 
 (/() P. r. Gibbous, 12 Cox, C. C. 237. 
 See P. v. Cross, 1 F. & F. .510 ; P. r. 
 Jones, 11 Co.x, C. C. 558. The rulings 
 of iMartin, B., and Cleasby, B., are iu ac- 
 cordance with the jiriuciple that actus 
 non facit rcum nisi mens sit rea. See 
 P. V. I'riuc'e, vol. 1, p. 88. Jlr. J. liretfs 
 judgment there strnis not rcconcilablo 
 with his dccisiou iu P. r. Gibbons.
 
 liGi; 
 
 Of B'ujamy. 
 
 [book 
 
 3ril. Divorce, 
 a vinculo 
 matrimonii. 
 
 tlic latest proof of tli<- life; of Uic party, and that it was a question 
 of fact for tli(.' jury, under the circumstances of each case, whether 
 a person ho alive or dead at any time within the interval of seven 
 years, at the termination of which the protection afforded hy 
 statute in cases of bigamy comes into operation, and the convic- 
 tion was ([uashed. (/) 
 
 If a man marries again after his wife has Leen absent for seven 
 years and shall not have been known by him to be living within 
 that time, during her life, the second marriage is null and void.fjf) 
 
 The tli'ii'd exception provides that tlie Act shall not extend ' to 
 any person who at the time of such second marriage shall have 
 been divorced from the bond of the first marriage.' A divorce, 
 therefore, a onensd et thoro, which was held sufficient under the 
 1 Jac. 1, (/>:) is now no longer an exception. Nor would a judicial 
 separation under the 20 & 21 Vict. c. 85, s. 16, suffice, for it is to 
 have the effect of a divorce a mensd et thoro. (l) It was held 
 under the 1 Jac. 1, that if there be a divorce a vinculo matri- 
 inonii, and an appeal by one of the parties, though this .suspends 
 the sentence, and may possibly repeal it, yet a marriage pending 
 that appeal will be aided by the exception, (m) In a case upon the 
 1 Jac. 1, the question arose whether a divorce by the Commissary 
 or Consistorial Court of Scotland would operate so as to excuse a 
 person, who, having been married in England, had been divorced 
 by that Court, and had then married again in England, from the 
 penalties of bigamy. And, from the decision of the judges, it 
 appears, that, if the first marriage has taken place in England, it 
 will not be a defence to prove a divorce a vinculo matrimonii 
 
 (i) R. V. Lumlcy, 38 L. J. M. C. 86, 
 L. R. 1 C. C. R. 19t3, ct per cur. In an 
 indictment for bigamy it is incnmbent 
 on the prosecutor to prove to the satis- 
 faction of the jury that the husband or 
 wife, as the case maybe, was alive at the 
 date of the second marriage, and that is 
 purely a question of fact. The existence 
 of tliii party at an antecedent period may 
 or may not atford a reasonable inference 
 tliat he was living at the subsequent date. 
 If, for example, it were proved that he 
 was in good health on the day preceding 
 the second marriage, the inference would 
 be strong, almost irresistible, that he was 
 living on the latter day, and the jury 
 would in all probability iind that he was 
 so. If, on the other hand, it were proved 
 that he was then in a dying condition 
 and nothing further was proved, they 
 would probably decline to draw that in- 
 ference. Thus the question is entirely 
 for the jury. The law makes no pre- 
 .sumption either wav. The cases cited of 
 The King r. Twyniug, 2 M. & W. 894 ; 
 The King v. Harborne, 2 A. & E. 540 ; 
 and Doe d. Nepean v. Knight, 2 B. 
 & A. 386 ; appear to us to establish 
 this proposition. "Where the only evi- 
 dence is that the party was living at 
 a period which is more than seven 
 years prior to the second marriage, 
 there is no question for the jury. The 
 pronso in the Act then comes into opera- 
 
 tion, and exonerates the prisoner from 
 criminal culpability, though the first hus- 
 band or wife be proved to have been 
 living at the time when the second mar- 
 riage was contracted. The Legislature 
 bj' this proviso sanctions a presumption 
 that a pereon who has not been heard of 
 for seven years is dead ; but the proviso 
 affords no gi'ound for the converse propo- 
 sition, viz. that when a party has been 
 seen or heard of within seven yeai-s a 
 presumption arises that he is still living. 
 That we have said is always a question 
 of fact. See Murray r. The Queen, 7 
 Q. B. 700 ; E. r. Apley, 1 Cox. C. C. 
 71. 
 
 0') 4 B. C. Com. 164, note. (;). 
 
 {k) 1 Hale, 694. 3 Inst. 89. 1 Hawk. 
 P. C. c. 42, s. 5. 4 Blac. Com. 164. 
 Middleton's case, Old Bailey, 14 Car., 2 
 Kel. 27. And see 1 East, P. C. c. 12, s. 5, 
 p. 467. 
 
 (/) See sec. 27 of the Act for the cases 
 in which a marriage may be dissolved. 
 
 (wi) 3 Inst. 89. 1 Hale, 694, citing Co. 
 P. C. c. 27, p. 89, and stating further that 
 if the sentence of divorce be repealed, a 
 marriage afterwards is not aided by the 
 exception, though there was once a 
 divorce. A marriage within the time 
 allowed for an appeal, imder the 20 & 21 
 Vict. c. %s, s. 56, would be void. See 
 Chichester r. JIure, 32 L. J. P. & M. 
 146.
 
 CHAP, v.] 
 
 Exceptions in the Statute. 
 
 267 
 
 before the second marriage, if sucli divorce were out of England ; 
 unless tlie divorce were upon a ground, which, by the law of Eng- 
 land, would warrant such a divorce : the divorces and sentences 
 referred to in the third section of the 1 Jac. 1, being divorces and 
 sentences of the ecclesiastical courts within the limits to which 
 that statute applies. The prisoner was indicted for bigamy; both 
 his marriages were in England ; but before his second marriage his 
 wife had obtained a divorce a vinculo from him in the Commis- 
 sary Court of Scotland. It appeared that he took his wife into 
 Scotland, that she mi<yht be induced to institute a suit agrainst him 
 there ; and that he cohabited with a prostitute there, for the very 
 purpose of irritating his wife, and furnishing ground for the 
 divorce. A case being reserved and argued, the judges were 
 unanimous, that no sentence or act of any foreign country or state 
 could dissolve an English marriage a vinculo for grounds on which 
 it was not liable to be dissolved a vinculo in England ; and that 
 no divorce of an ecclesiastical court was within the exception in 
 the third section of the statute, unless it was the divorce of a 
 court Avithin the limits to which that statute extended, (h) The 
 judges gave no opinion upon the husband's conduct, in drawing on 
 his wife to sue for the divorce, because the jury had not found 
 fraud, (o) 
 
 The fourth cxceiMon is that the Act shall not extend ' to any 
 person whose former marriage shall have been declared void by 
 the sentence of any Court of competent jurisdiction.' It was 
 resolved, upon the 1 Jac. I, by all the judges, that a sentence of jurisdiction, 
 the spiritual court agaiiist a marriage, in a suit of jactitation of 
 marriage, is not conclusive evidence, so as to stop the counsel for 
 the crown from proving the marriage ; the sentence having decided 
 on the invalidity of the marriage only collaterally, and not directly. 
 And further, admitting such sentence to be conclusive, yet that the 
 counsel for the crown may avoid the effect of such sentence, bv 
 proving it to have been obtained by fraud or collusion. ( p) There 
 is no exception in the new Act where marriages are within the age 
 of consent, {q) 
 
 . With respect to the first marriage, the validity of it must be Of the two 
 proved, and with respect to the second marriage, it must be shown ^-'^rnages. 
 that a form of marriage known to and recognized by the law as 
 capable of producing a valid marriage has been gone through, (r) 
 
 4tli. Man-iago 
 declared void 
 by Court of 
 competent 
 
 {n) It seems to admit of some doubt 
 whether this case be any authority upon 
 the present Act. The words of the IJac. 1, 
 c. 11, were 'divorced by any sentence 
 in the Ecclesiadical Court.' The words 
 in the 24 & 25 Vict. c. 100, s. 57, are, 
 ' divorced from the bond of tlie lirst 
 niarriaj;e. ' Tliese words are so much 
 more f^eneral, tliat it may be contended 
 that they except every case where accord- 
 ing to the laws of the country whore 
 the divorce takes place, there is a legal 
 divorce a viilckIq matrimonii, and tlio 
 M'ords ' any court of comf)etent jurisdic- 
 tion ' in the next clause, instead of the 
 words ' the Ecclesiastical Court,' in tho 
 1 Jac. 1, c. 11, seem to favour this view 
 of the exception. C. S. G. 
 
 (o) Rex V. Lolley, MS. Bayley, J., and 
 Ti. & R. 237. This case is referred to by 
 the Lord C'liancellor, and also by ^Ir. 
 Brougham, in Tovey I'. Lindsay, 1 Dow's 
 Rep. 117. And see 5 Ev. Coll. Stat. 348, 
 note (4). Upon the important subject of 
 the dissoluticin of marriages, celebrated 
 under tlic English law, by theC'onsistorial 
 Court of Scotland, see a puldication of 
 Reports of some Decisions of tliut Court, 
 by Janu'S Fergus.son, Esq., Advocate, one 
 of the Judges. 
 
 ij)) Duchess of Kingston's case, Dom. 
 Troc. 10 (!eo. 3. 11 St. Tri. 262. 1 
 Leach, 146. 1 Hawk. V. C. c. 42, s. 11. 
 
 ('/) See Kex v. Binninghani, 8 B. & C. 
 29, 2mst, p. 20!>. 
 
 (r) 1\. V. Allen, post, yt. 268.
 
 268 
 
 Of Bigam]). 
 
 [book 
 
 ; V. 
 
 Principals ii 
 the second 
 degree and 
 accessories. 
 
 What constitutes validity in the one case an<l a lawful ffjiin of 
 Tnariia<'e in the other, has been the subject of a great number of 
 statutes and decisions, whicii will be found in the following pages, 
 but it is proposed to consider in the first place the above import- 
 ant distinction with respect to the two marriages. The words of 
 the statute are, ' whosoever being married shall marry any other 
 person,' and it was thought that the same word being used with 
 respect to both marriages, if the first must be a valid marriage, 
 the second must also (but for the fact of the first marriage) be a 
 valid marriage, (.s) But it has now been decided that the words 
 should be read as though they were, ' whosoever Ijeing married 
 shall go througli the form and ceremony of marriage,' and that the 
 form and ceremony gone through must be such a one as is known 
 to and recognized by the law as capable of producing a valid 
 marriage, and that such a circumstance as that the parties are 
 within the forbidden degree of consanguinity will not prevent 
 the marriage from being bigamous. Where a married woman 
 married her deceased sister's hu.sband, {t) it was held that although 
 such second marriage was void under the 5 & G Will. 4, c. o2, 
 s. 2, yet she had committed the crime of bigamy, {u) A Pro- 
 testant went through the form of marriage by a Romish priest 
 with a Roman Catholic. This marriage was void under the 19 
 Geo. 2, c. 13, and it w'as held by the Court of Criminal Appeal in 
 Ireland that such marriage being void could not be bigamous, al- 
 though the first wife was alive, [v) But this decision was over- 
 ruled in the following case. The prisoner's first wife being dead, 
 ' he married again, and subsequently went through the form of mar- 
 riage with his first wife's niece. The marriage was held to be void, 
 but it was also held that the prisoner was rightly convicted of 
 bigamy, (iv) 
 
 Where in order to establish a charge of bigamy in a divorce suit 
 it was proved that the husband married a woman in Australia ac- 
 cording to the forms of the Kirk of Scotland, but there was no proof 
 that such forms were recognized as legal by the laws of the colony, 
 it was held that the bigamy was not established, {x) 
 
 Principals in the second degree and accessories before the fact 
 are punishable in the same manner as principals in the first 
 degree ; and accessories after the fact are liable to be imprisoned 
 
 {s) E. V. Fanning, 10 Cox, C. C. 411. 
 
 (t) Cited j)0'«- 
 
 («) Reg. V. Brawn, 1 C. & K. 144, per 
 Lord Dcnman, C. J. 
 
 (v) R. V. Fanning, 5 Car. & P. 412. 
 
 (ic) R. r. AUen, L. R. 1 C. C. R. 3C7; 
 41 L. J. M. C. 97, ct per cur. In thus 
 holding, it is not at all necessary to say 
 that fonns of marriage unknown to the 
 Li\v, as was the case in Burt v. Burt, 
 would sullice to bring a case within the 
 operation of the statute. We must not 
 be understood to mean that every fan- 
 tastic form of marriage to which parties 
 might think proper to resort, or that a 
 marriage ceremony performed by an un- 
 authorised person, or in an unauthorised 
 place, would be a " marrying " within the 
 meaning of the 57th section of the 24 & 
 25 Vict. It will be time enough to deal 
 
 with a case of this description when it 
 arises. It is sufficient for the present 
 purpose to hold, as we do, that where a 
 prison already bound by an existing mar- 
 riage goes through a form of marriage 
 known to and recognized by the law as 
 capable of producing a valid marriage, for 
 the purpose of a pretended and fictitious 
 marriage, the case is not the less \vithin 
 the statute by reason of any special cir- 
 cumstances, which independently of the 
 bigamous character of the marriage, may 
 constitute a legal disability in the par- 
 ticular parties, or make the foiTn of mar- 
 riage resorted to specially inapplicable to 
 their individual case. 
 
 {X) Burt r. Burt, 29 L. J. P. & M. 133, 
 and this decision was upheld in R. v. 
 Allen, supra.
 
 CHAP, v.] 
 
 Trial, &g. 
 
 2G9 
 
 for any term not exceeding two years, with or without hard 
 labour, {y) 
 
 Where an indictment charged a woman with bigamy, and the 
 man, with whom she contracted the second marriage, with inciting 
 and counseUing the woman to commit the oftence of bigamy, 
 it was held that if the man kncAv at the time of the marriage 
 that she was a married woman, and her husband alive, he 
 might be convicted of counselling her to commit the crime of 
 bigamy, {z) 
 
 The indictment in the preceding case did not contain any count 
 charging the man as principal in the second degree ; but there is 
 no doubt, v/here a man marries a woman, knowing such woman 
 to have a husband alive at the time of such marriage, that he is a 
 principal in the second degree, as he is present and aids and assists 
 the woman in committing the felony. («) 
 
 The 24 & 25 Vict. c. 100, s. 57, provides that the offender may 
 be tried in the county where he shall be 'apprehended (6) or be in 
 custody.' But the provision of the statute is only cumulative, 
 and the party may be indicted where the second marriage was, 
 though he be never apprehended, and so may be outlawed ; for in 
 general where a statute creating a new felony directs that the 
 offender may be tried in the county in which he is apprehended, 
 but contains no negative words, he may be tried in that county in 
 which the offence was committed, (c) 
 
 AVhere the indictment is preferred in a county not where the 
 second marriage was, but where the prisoner was apprehended or 
 in custody, it need not state that fact ; for it will appear by the 
 caption that he was in custody of the sheriff of the county in which 
 the indictment was found, {d) 
 
 A first marriage de facto, subsisting in fact at the time of the 
 second marriage, was sufficient to bring a case within the 1 Jac. 1, 
 though such first marriage were voidable by reason of consan- 
 guinity, affinity, or the like ; for it was a marriage in judgment 
 of law until it was avoided, (e) And now by the 5 & 6 Will. 4, 
 c. 54, s. 1, all marriages, celebrated before the 31st of August, 
 1835, between persons being within the prohibited degrees of 
 affinity, shall not be annulled for that cause by any sentence of 
 the ecclesiastical court, unless pronounced in a suit depending on 
 the 31st of August, 1835, provided that nothing hereinbefore con- 
 tained shall atfect marriages between persons being within the 
 
 Accessory 
 before the 
 fact. 
 
 Principal in 
 the second 
 degree. 
 
 Trial in the 
 county where 
 the party is 
 apprehended, 
 or in custody. 
 
 Of the first 
 marriage. 
 
 (y) 24 & 25 Vict. c. 100, s. 67. See 
 vol. 1, p. 178. 
 
 (2) Reg. V. Brawn, 1 C. & K. 144. 
 Lord Dcnmaii, C. J. 
 
 (a) The Editor knows such to have 
 hffu the opinion of Lord Denman, C. J., 
 and Alderson, B., in lleg. v. Brawn. 
 C. S. G. 
 
 (b) K. V. Gordon, K. & R. 48. Lord 
 Digby's case, Ilutt, 131. 
 
 (f) 1 Hale, 694. 3 Inst. 87. Starkie, 
 11. 
 
 (il) Keg. V. ■\Vliilcy, rightly reported 
 
 1 C. & K. 150 ; erroneously reported 
 
 2 M. C. C. R. 186. Reg. v. Sinythies, 
 1 Den. G. C. R. 4!»8 ; 2 G. & K. 8^8. In 
 Rex V. Fraser, R. & M. C. G. R. 407, the 
 
 first marriage was laid in Kent, tlic second 
 in Surrey, the venue was Middlesex, and 
 it was alleged that the prisoner was ap- 
 ])rehendcd without stating any place, and 
 the conviction held bad, but no sugges- 
 tion was made that the defect was cured by 
 the caption ; this case, therefore, nniy now 
 be considered no authority. See Reg. r. 
 O'Gonnor, 5 Q. B. 34. See Re.x v. Tre- 
 harne, H. & M. G. G. R. 2!t8. Where an 
 iudictnient for bigamy alleged that the 
 pri.soniT was a]iprehciided in Gloucester- 
 sliire, and this was not proved ; Channel, 
 B., allowed the indictment to be amended 
 by stating that he was in custody in that 
 county. Keg. r. Smith, 1 F. & F. 36. 
 {e) 3 Inst. 88.
 
 270 Of Blfjamy. [book v. 
 
 jirulii])itcd (lej^recs o( consanguinity ; and by sec. 2, 'all marriages 
 cclebnitod after the said lUst of August, between persons within 
 tlie pruliibitcd degrees oi coriaanrjuinity or affi^nity shall be abso- 
 lutely null and void to all intents and purposes whatsoever.' 
 Where, therefore, a marriage now takes place within the pro- 
 hibited degrees of consanguinity or aflinity, as such marriage is 
 ■wholly void, a second marriage will not amount to the crime of 
 bigamy. Where, therefore, on an indictment for bigamy, it 
 appeared that the prisoner had married two sisters, one after the 
 death of the other, and the latter marriage was alleged in the 
 indictment as the legal marriage, it was held that he was entitled 
 to be acquitted, as that marriage was null and void to all intents 
 and purposes. (/) This statute extends to the illegitimate as well 
 as the legitimate child of a late wife's parents. Therefore a 
 marriage with the illegitimate sister of a deceased wife is void, (fj) 
 So a marriage of a man with the daughter of the illegitimate half- 
 sister of his deceased wife is void, {h) And the Act extends to 
 the marriages of British subjects abroad. Where, therefore, Mr. 
 Brook was duly married, according to the laws of Denmark, near 
 Altona in Denmark, to the lawful sister of his deceased wife, 
 and he and his second wife Avere then domiciled in England, and 
 had merely gone over to Denmark on a temporary visit ; it was 
 held that this marriage, though valid in Denmark, was absolutely 
 void in England, (i) But it has been ruled that though a lawful 
 canonical marriage need not be proved, yet a marriage in fact 
 (whether regular or not) must be shown ; (j) which it seems must 
 be understood where there is 'pvimd facie evidence of a lawful mar- 
 riage, (/l) Where the first marriage, which was with a Roman 
 Catholic woman, was by a Romish priest in England, not accord- 
 ing to the ritual of the Church of England, and the ceremony was 
 performed in Latin, which the witnesses did not understand, and 
 could not therefore swear that the ceremony of marriage accord- 
 ing to the Church of Rome was read ; it v/as directed that the 
 defendant should be acquitted. (J) Willes, C. J., who tried him, 
 seemed to be of opinion that a marriage by a priest of the Church 
 of Rome w^as a good marriage, {ni) if the ceremony according to 
 that church could be proved ; namely, the words of the contracting 
 part of it. 
 Former Mar- T\\c ionnQv Marriage x\.ct, 26 Geo. 2, c. 33, required all mar- 
 
 riage Acts. riagcs to be hy banns or license : and declared that all marriages 
 solemnized in any other place than a church or public chapel (un- 
 
 (/) Reg. V. Chadwiok, 11 Q. B. 173. ( Brook v. Brook, 3 Smale&G. 4S1. 
 
 (g) Reg. r. St. GiU-s in the Fields, 9 H. L. C. 193. Such affinity can only 
 
 11 Q. B. 173. "Wliere a woman proved be constituted hy niamage, and not by 
 
 that she had a sister seven years ohler sexual intercourse. Wing r. Taylor, 
 
 than herself, and that they were brought 2 Swabey <fc T. 278. 
 
 up together with their parents, and that {j) By Denison, J., referred to by the 
 
 she always believed that they were sisters, Court in Morris v. Miller, 1 Blac. R. 632. 
 
 Erie, J., held this was suthcient evidence {k) Rex r. Brampton, 10 East, 287, 
 
 to prove that they were sisters. And the note {h). 
 
 witness having also proved that her sister {I) Lyon's case, Old Bailey, 1738. 
 married M. in 1846 and died in 1848, and 1 East, P. C. c. 12, s. 10, p. 469, citing 
 that the witness married M. in 1849, Serjeant Foster's SIS. 
 Erie, J., held that this showed the latter {m) To this S[r. East (id. ibid.) sub- 
 marriage to be void. Reg. v. Young, joins a quwrc, and says that it must at 
 5 Cox, C. C. 296. least be understood of the marriage of 
 
 {h) Reg. V. Brighton, 1 Best & S. 447. persons of that communion.
 
 CHAP, v.] Marriage Acts. 271 
 
 less by special license), or solemnized without publication of 
 banns or license, should be null and void to all intents and pur- 
 poses. It contained also special provisions as to the publication of 
 banns ; and, as to marriages by license, it provided that all such 
 marriages, where either of the parties, not being a widower or 
 widow, was under the age of twenty-one years, had without the 
 consent of the father of such of the parties so under age (if then 
 living) first had and obtained ; or if dead, of the guardian or guar- 
 dians of the person of the party so under age, lawfully appointed, 
 or one of them ; and in case there was no such guardian or guar- 
 dians, then of the mother (if living and unmarried) ; or if there 
 was no mother living and unmarried, then of a guardian or guar- 
 dians of the person appointed by the Court of Chancery : should 
 be absolutely null and void to all intents and purposes whatso- 
 ever. («) But these provisions as to marriages by license Avere re- 
 pealed as to any marriages thereafter to be solemnized by the 3 
 Geo. 4, c. 75, s. 1, which passed on the 22nd of July, 1822, and 
 came into operation on the 1st of September following : and it was 
 further enacted, that in all cases of marriage solemnized by license 
 before the passing of this Act of 3 Geo. 4, without any such con- 
 sent, and where the parties had continued to live together as 
 husband and wife till the death of one of them, or till the passing 
 of the Act, or had only discontinued their cohabitation for the 
 purpose, or daring the pending of any proceedings touching the 
 validity of such marriage, such marriage, if not otherwise invalid, 
 should be deemed good and valid to all intents and purposes, (o) 
 
 A pauper, not being a widow, and being under age, was married 
 by license in 1808, without the consent of her father, who was 
 then living, and continued to live witli licr husband till 1825, 
 when she married another man, her first husband being still alive ; 
 
 (n) Sec. 11. By sec. 12 provision was any person alleged to Le the descendant 
 made for a petition to the Lord Chan- of the parties to such marriage. Nor (by 
 cellor, &c., where the guardians ormother sec. .5) anymarriage tlie validity of wliich, 
 were not in a situation to consent, or to or the legitimacy of any person alleged 
 refuse to consent. ]>y sec. 4 licenses were to be the lawful descendantof the parties 
 to ]ji\ granted to solemnize matrimony in married, had been duly brought intoques- 
 the church or chapel of such parish only tion in proceedings in any cause, &c. , in 
 where one of the parties had resided for which judgments or decrees, or orders of 
 four weeks before. But by sec. 10 proof court, liad been pronounced or made be- 
 of the actual dwelling in the parishes, &c. , fore the passing of the Act, inconsequence 
 where a marriage was by banns, or of of or from the effects of proof in such 
 the usual place of abode of one of the causes, &c., of the validity of such mar- 
 parties, where a marriage was by license, riagc, or the illegitimai'y of such descen- 
 was made unnecessary after the solemni- dant. By sec. (3, if before the Act, any 
 zation of the marriage, and evidence was property liad been possessed, or any title 
 not to be received in (hither of these cases of honour enjoyed on the ground of the 
 to prove the contrary, in any suit touch- invalidity of any marriage, l)y reason that 
 iiig the validity of the marriage. it was solemnized without consent, tlien, 
 
 (o) 3 (!eo. 4, c. 75, s. 2. Sec. 3 pro- althougli nosenteucehad beenjironounccd 
 
 vided that the Act should not render valid against the valiility of sncli mairiagc, the 
 
 any marriage declared invalid by any riglit and interest in sucli projicrty or 
 
 Court of competent jurisdiction before the title of honour sliould in no manner l)e 
 
 l)assing of the Act ; nor any marriage allected or prejudiced. And by sec. 7 
 
 where either party .should at any time nothing in the Act was to affect any act 
 
 afterwards, during the life of the otlier done before the i>assing of the Act, under 
 
 party, have lawfully intermarried with the authority of any court, or in tlio 
 
 any other ]ierson. Nor (by sec. 4) any administration of any persomil cstati^ or 
 
 marriage, tlie invalidity of which had elicits, or the execution of any will or 
 
 been established before tlie passing of the testament, or the performance of any 
 
 Act, upon the trial of any issue touching trust. 
 its validity, or touching the legitimacy of
 
 1272 f\f Tiiydriiij. [book v. 
 
 it was Ik^M that tlio first inairiagc was loiidoicd valid by .*} Clco. 4, 
 c. 7'), s. '1, hfcauso the parties iiad livccl together till that Act 
 passeil, and was not rendered invalid by the pauper's subsequent 
 marriage to another person. (2^) But where two minors were 
 niarri»(i by license and without consent of parents, in 18UJ ; and, 
 after cohabiting f^r a few months, the owner of the liouse wliero 
 they lodged coinpellcd the; husband to leave it for his misconduct, 
 and he never lived with his wife afterwards, and died in 1H17 ; 
 and shortly after the sc})arati(in ho on several occasions had de- 
 clared that he would never live witli her again, giving as one 
 reason that she was not his lawful wife ; but some evidence was 
 given that after the separation she had received small sums which 
 were ultimately allowed out of the rent of the husband's land, but 
 whether by his direction or not did not appear ; it was held that 
 the niarriago was not rendered valid by the .S Geo. 4, c. 7o, s. 2. (7) 
 A ])risoner was married on the 3()th of August, LS22, by license, 
 and without the consent of either of her parents, she being between 
 sixteen and seventeen years of age ; it was held, on a case reserved, 
 that the marriage was valid, for under the 3 Geo. 4, c. 7o, which 
 passed on the 22nd of July, 1822, the 20 Geo. 2, c. 33, s. 11, had 
 ceased to operate, and the provisions as to marriages by licenses in 
 the 3 Geo. 4, c. 75, did not come into force till the first of September 
 following. (>•) 
 
 The 3 Geo. 4, c. 75, contained also enactments as to the granting 
 of licenses, the consent of parents and guardians, and the publica- 
 tion of banns, which have been repealed by the 4 Geo. 4, c. 17, 
 which enacted, that licenses should and might be granted by the 
 same persons, and in the same manner and form, and, in the case 
 of minors, with the same consent, and banns be published in the 
 same manner and form as licenses and banns were respectively 
 regulated by the 26 Geo, 2, c. 33 ; and enacted also (by sec. 2) 
 that all marriages which had been or should be solemnized under 
 licenses granted, or banns published, conformably to the provisions 
 of the 3 Geo. 4, c. 75, should be good and valid ; and that no 
 marriage solemnized under any license granted in the form or 
 manner prescribed by either the 20 Geo. 2, c. 33, or the 3 Geo. 4, 
 c. 75, should be deemed invalid on account of want of consent of 
 any parent or guardian. The old Marriage Act was then in a great 
 measure revived, though only for a short period. The 4 Geo. 4, 
 c. 5, was passed to render valid certain marriages which had been 
 solemnized by licenses granted through error, after the passing of 
 the 3 Geo, 4, c. 75, by or in the name of bodies coqjorate or 
 persons their officers or surrogate.^, other than the Archbishops of 
 Canterbury and York, and the bishops within their respective 
 dioceses, who were alone authorised to grant such licenses by the 3 
 Geo. 4, c. 75 ; but this provi.sion of the 4 Geo. 4, c. 5, applies only 
 to mamages solemnized by such erroneous licenses granted after 
 the 3 Geo. 4, and before the passing of the 4 Geo. 4, c. 5. 
 4 Geo. 4, The 4 Geo. 4, c. 70, {s) reciting that it is expedient to amend 
 
 c. 76, s. 1, ^i^g \q.\\5 respecting marriages in England, enacts, that, after the 
 26^Gco. 2 l^t •^^y of November, 1823, so much of the 20 Geo. 2, c. 33, as was 
 
 {}•) Rex V. St. John Delpike. 2 B. & (r) Kex v. Waullv, K. & M. C. C. U. 
 
 d. 226. 163. 
 
 (q) Poole r. Toole, 2 Tyrw. E. 76. (s) See 36 & 37 Vict. c. 91.
 
 CHAP, v.] 
 
 Marriage Acts. 
 
 in force immediately before the passing of this Act, and also the 
 4 Geo. 4, c. 17, shall be repealed, save and except as to any acts, 
 matters, or things, done under the provisions of either of the said 
 Acts, before the said 1st day of November, as to which the said 
 Acts are respectively to be of the same force and effect, as if this 
 Act had not been made. 
 
 Sec. 2. 'After the 1st day of November (1823), all banns of 
 matrimony shall be published in an audible manner in the parish 
 church, or in some public chapel, in which chapel banns of matri- 
 mony may now or may hereafter be lawfull}^ published, of or be- 
 longing to such parish or chapelry, wherein tlie persons to be 
 married shall dwell, according to the form of words prescribed by 
 the rubric prefixed to the office of matrimony in the Book of Com- 
 mon Prayer, upon three Sundays preceding the solemnization of 
 marriage, during the time of morningservice, or of evening service (if 
 there shall be no morning service in such church or chapel upon the 
 Sunday upon which such banns shall be so published), immediately 
 after the second lesson ; and whensoever it shall happen that the 
 l)crsons to be married shall dwell in divers parishes or chapelries, 
 the banns shall in like manner be published in the church, or in 
 such chapel as aforesaid, belonging to such parish or chapelry 
 Avherein each of the said persons shall dwell ; and that all other 
 the rules prescribed by the said rubric concerning the publication 
 of banns, and the solemnization of matrimony, and not hereby 
 altered, shall be duly observed ; and that in all cases where banns 
 shall have been published, the marriage shall be solemnized in one 
 of the parish churches or chapels where such banns shall have 
 been published, and in no other places whatsoever.' 
 
 Sec. 8. ' The bishop of the diocese, with the consent of the patron 
 and the incumbent of the church of the parish in which any public 
 chapel, having a chapelry thereunto annexed, may be situated, or of 
 any chapel situated in an extra-parochial place, signified to him 
 under their hands and seals respectively, may authorize, by writing 
 under ])is hand and seal, the publication of banns and the solemni- 
 zation of marriages in such chapel for persons residing within such 
 chapelry or extra-parochial place respectively ; and such consent, 
 together with such written authority, shall be registered in the 
 registry of the diocese.' 
 
 Sec. 4. ' In every chapel in respect of which such authority 
 shall be given as aforesaid, there shall be placed in some con- 
 spicuous part of the interior of such chapel a notice in the words 
 following : " Banns may 1)0 published, and marriages solemnized 
 in this chapel." ' 
 
 Sec. o. ' All provisions now in force, or which may hereafter be 
 established by law, relative to providing and keeping marriage 
 registers in any parisli churches, shall extend and be construed to 
 extend to any chapel in whicii the publication of banns and solemni- 
 zation of marriages shall be so authorized as aforesaid, in the same 
 manner as if the same were a parish church ; and cverytiiing re- 
 quired by law to be done relative thereto by the churchwardens of 
 any parish church, shall be done by the chapelwarden, or other 
 officer exercising analogous duties in such chapel, {t) 
 
 Sec. 6. ' On or before the said 1st day of November, and from 
 
 (t) See as to the registration of marriages, G & 7 Will. 4, c. 86, ss. 1, 30, 31. 
 
 VOL. III. T 
 
 273 
 
 c. S3, and 
 
 4 Geo. 4, c. 17. 
 
 Banns •where, 
 when, and how 
 published, and 
 marriage to be 
 solemnized 
 where banns 
 published. 
 
 Bishop, with 
 consent of the 
 patron and 
 incumbent, 
 may authorize 
 the publication 
 of banns in any 
 public chapel. 
 
 Notice to be 
 placed in such 
 chapel. 
 
 Provisions 
 relative to 
 marriage regis- 
 ters extended 
 to chapels so 
 authorized a.s 
 aforesaid. 
 
 Book to be
 
 1^74 
 
 lirovideil for 
 the rej;iHlrfttii)n 
 (if lianiiH. 
 
 < >f JjKjdJIlij. 
 
 [book v. 
 
 liiur to tiiiK! ;iftcrwards as tliorc sliall 
 w.inlciis iiiul cli;i|K'l\vanl<'ns of cliurclios 
 
 Notice of 
 immcR, and 
 ])lacc and time 
 of abode of 
 parties to be 
 given to the 
 minister. 
 
 How far 
 ministers not 
 punishable for 
 marrying 
 minors without 
 consent. In 
 ■what case pub- 
 lication of 
 banns void. 
 
 In what case 
 republication 
 of banns 
 necessary. 
 
 Licenses to 
 marry in 
 church, &c., of 
 parish wherein 
 one pai'ty re- 
 sided for 15 
 davs before. 
 
 Where caveat 
 entered, no 
 license to 
 issue till mat- 
 ter examined 
 by judge. 
 
 ]j(; ocfasioii, the church- 
 and chapels, wherein 
 
 inariia"es are suhjiiiiiizcd, shall j)rovide a proper Ijonk of sii})stantial 
 paper, marked and ruled respectively in manner directed for the 
 register book of marriages ; and tiie banns shall be published from 
 the said register book of banns by the officiating minister, and not 
 from loose papers, and after publication shall be signed by the 
 otKciating minister, or by some person under his direction.' 
 
 Sec. 7. ' No ])arson, vicar, minister, or curate, shall be obliged to 
 publish the banns of matrimony between any persons whatsoever, 
 unless the persons to be married shall, seven days at the least 
 before the time required for the first publication of such banns 
 respectively, deliver, or cause to be delivered to such parson, vicar, 
 minister, or curate, a notice in writing, dated on the day on which 
 the same shall be so delivered, of their true Christian names and 
 surnames, and of the house or houses of their respective abodes 
 within such parish or chapelry as afore.said, and of the time during 
 which they have dwelt, inhabited, or lodged, in such house or 
 houses respectively.' 
 
 Sec. 8. ' No parson, minister, vicar, or curate, solemnizing 
 marriages after the first day of November next, between persons, 
 both or one of whom shall be under the age of twenty-one yeans, 
 after banns published, shall be punishable by ecclesiastical censures 
 for solemnizing such marriages without consent of parents or guar- 
 dians, unless such parson, minister, vicar, or curate, shall have 
 notice of the dissent of such parents or guardians ; and in case 
 such parents or guardians, or one of them, shall openly and 
 publicly declare or cause to be declared, in the church or chapel 
 where the banns .shall be so published, at the time of such publi- 
 cation, hi.s, her, or their dissent to such marriage, such publication 
 of banns shall be absolutely void.' 
 
 Sec. 9. ' Wherever a marriage shall not be had within three 
 months after the complete publication of bann.s, no minister shall 
 proceed to the solemnizationof the same, until the banns shall have 
 been republished on three several Sundays, in the form and man- 
 ner prescribed in this Act, unless by license duly obtained accord- 
 ing to the provisions of this Act. 
 
 Sec. 10. ' No license of marriage shall, from and after the said 
 first day of November, be granted by any archbishop, bishop, or 
 other ordinary, or person having authority to grant such licenses, to 
 solemnize any marriage in any other church or chapel than in the 
 parish church, or in some public chapel of or belonging to the 
 parish or chapelry within which the usual place of abode of one of 
 the persons to be married shall have been for the space of fifteen 
 days immediately before the granting of such license.' 
 
 Sec. 11. 'If any caveat be entered against the grant of any 
 license for a marriage, such caveat being duly signed by or on the 
 behalf of the person who enters the same, together with his place 
 of residence, and the ground of objection on which his caveat is 
 founded, no license shall issue till the said caveat, or a true copy 
 thereof, be transmitted to the judge out of whose office the license 
 is to issue, and until the judge has certified to the registrar that he 
 has examined into the matter of the caveat, and is satisfied that it 
 ought not to obstruct the grant of the license for the said mar-
 
 CHAP. 
 
 v.] 
 
 Marriage Acts. 
 
 riage, or until the caveat be withdrawn by the party who entered 
 the same.' 
 
 Sec. 12. 'All parishes where there shall be no parish church or 
 chapel belonging thereto, or none wherein divine service shall be 
 usually solemnized every Sunday, and all extra-parochial places 
 whatever, having no public chapel wherein banns may be lawfully 
 published, shall be deemed and taken to belong to any parish or 
 chapelry next adjoining, for the purposes of this Act only ; and 
 where banns shall be published in any church or chapel of any 
 parish or chapelry adjoining to any such parish or chapelry where 
 there shall be no church or chapel, or none Avherein divine ser- 
 vice shall be solemnized as aforesaid, or to any extra-parochial 
 place as aforesaid, the parson, vicar, minister, or curate, publishing 
 such banns, shall, in writing under his hand, certify the publication 
 thereof in the same manner as if either of the persons to be 
 married had dwelt in such adjoining parish or chapelry.' 
 
 Sec. 13. ' If the church of any parish, or chapel of any chapelry, 
 wherein marriages have been usually solemnized, be demolished in 
 order to be rebuilt, or be under repair, and on such account be 
 disused for public service, it shall be lawful for the banns to be 
 proclaimed in a church or chapel of any adjoining parish or 
 chapelry in which banns are usually proclaimed, or in any place 
 within the limits of the parish or chapelry which shall be licensed 
 by the bishop of the diocese for the performance of divine service, 
 during the repair or rebuilding of the church as aforesaid ; and 
 wliere no such place shall be so licensed, then, during such period 
 as aforesaid, the marriage may be solemnized in the adjoining 
 church or chapel wherein the banns have been proclaimed, and all 
 marriages heretofore solemnized in other places within the said 
 parishes or chapelries than the said churches or chapels, on account 
 of their being under repair, or taken down in order to be rebuilt, 
 shall not be liable to have their validity questioned on that account, 
 nor shall the ministers who have so solemnized the same be liable 
 to any ecclesiastical censure, or to any other proceeding or penalty 
 whatsoever.' This enactment being defective in not providing that 
 marriages might be solemnized in the places licensed for the pro- 
 clamation of banns ; nor that marriages might be solemnized by 
 license in an adjoining church or chapel ; nor that the validity of 
 marriages thereafter solemnized in other places than the churches 
 and chapels out of repair, should not be questioned on that account ; 
 nor that the ministers who should thereafter solemnize such mar- 
 riages should not be liable to ecclesiastical censure, kc. ; the 5 Geo. 4, 
 c. 32, enacts, that ' all marriages which have been heretofore 
 solemnized, or which shall be hereafter solemnized in any place 
 within the limits of such parish or chapelry so licensed for the per- 
 formance of divine service, during the repair or rebuilding of the 
 church of any parish, or chapel of any chapelry, wherein marriages 
 have been usually solemnized ; or if no such place shall be so 
 licensed, tlien in a church or chapel of any adjoining parish or 
 chapelry in which bamis are usually proclaimed, whether by banns 
 lawfully pul)lished in such church or chapel, or by liccui^e lawfully 
 granted, shall not have their validity ([uestioned on account of their 
 having been so solemnized, nor shall the ministers who have so 
 solemnized the same be liable to an ecclesiastical censure, or to 
 
 I 2 
 
 275 
 
 Parishes, 
 where no 
 church or 
 chapel, and 
 extra-parochial 
 places, deemed 
 to belong to 
 any adjoining 
 parish, &c. 
 
 Where 
 churches arc 
 demolished, or 
 under repair, 
 banns to be 
 proclaimed in 
 a church or 
 chapel of an 
 adjoining 
 pai'ish, &c. 
 
 Provision for 
 former mar- 
 riages so 
 solemnized.
 
 ■27 C) ( )/ liiija )ay. [book v. 
 
 nny otlior ]irorcoclinf,'.' And tliat all licenses granted by any person 
 liaviiiL,^ antliority lo ^'raiit tliciii for tlic solomnization of marriages 
 in a churcli or cliapcl, wluMciii iiiairiago.s have been usually solem- 
 nized, shall be deemed to be licenses for the solemnization of mar- 
 ria<Tes in any place within the limits of such parish or chapelry, 
 Avhich shall be licensed by the bishop for the performance of divine 
 service, during the repair or rebuilding of any such church or 
 chapel, or if \io place shall be so licensed, then in the church or 
 chapel of any adjoining parish or chapelry wherein marriages have 
 been usually solenmized. (?'.) And also that all banns proclaimed, 
 and all marriages solemnized, according to the provisions of this 
 Act in any place so licensed, within the limits of any parish or 
 chapelry, during the repair or rebuilding of the church, &c., shall 
 be considered as proclaimed and solemnized in the cliurch, e^c, and 
 shall be so registered accordingly, (v) 
 Oath to bo The 4 Geo. 4, c. 76, s. 14, enacts,, 'for avoiding all fraud and col- 
 
 laken bcforo lusiou in obtaining of licenses for marriage, that before any such 
 as^toTernL" Hceuse be granted, one of the parties shall personally swear before 
 particulars the surrogate, or other person having authority to grant the same, 
 before licenso ^j^r^j- \^q qj. ^\^q belicveth that there is no impediment of kindred or 
 isgrantei. alliance, or of any other laAvful cause, nor any suit commenced in 
 any ecclesiastical court, to bar or hinder the proceeding of the said 
 matrimony according to the tenor of the said license ; and that one 
 of the said parties hath, for the space of fifteen days immediately 
 preceding such license, had his or her usual place of abode within 
 the parish or chapelry within which such marriage is to be solem- 
 nized ; and, where either of the pai'ties, not being a widower or 
 Avidow, shall be under the age of twenty-one years, that the con- 
 sent of the person or persons whose consent to such marriage 
 is required under the provisions of this Act has been obtained 
 thereto : provided always, that if there should be no such person 
 or persons having authority to give such consent, then upon oath 
 made to that effect by the party requiring such license, it shall be 
 lawful to grant such license, notwithstanding the want of any such 
 consent.' 
 Bond not to be Scc. 15. ' It shall not be required of any person applying for such 
 required before license to give any caution or security, by bond or otherwise, before 
 license"" such license is granted, anything in any Act or canon to the con- 
 
 trary thereof notwithstanding.' 
 Who are to Scc. 10. 'The father, if living, of any party under twenty-one 
 
 pve consent, years of age, such parties not being a widower or widow ; or, if the 
 under !v^^e.^^° father shall be dead, the guardian or guardians of the person of the 
 party so under age, lawfully appointed, or one of them ; and, in 
 case there shall be no such guardian or guardians, then the mother 
 of such party, if unmarried ; and, if there shall be no mother un- 
 married, then the guardian or guardians of the person appointed 
 by the Court of Chancery, if any, or one of them, shall have autho- 
 rity to give consent to the marriage of such party ; and such con- 
 sent is hereby required for the marriage of such party so under age, 
 unless there shall be no person authorized to give such con- 
 sent.' (if) 
 
 (;/) Sec. 2. ticnlar churches and chapels, 
 
 (r) Sec. 3. Jtaiiy other acts have {ic\ This section is merely directory, 
 
 pa'jsed to render valid marriages in par- see Kex i: Birmingham, post, p. 299.
 
 CHAP, v.] 
 
 Marriage Acts. 
 
 'A I / 
 
 noil compos 
 mentis, or if 
 guardian or 
 mother of 
 minor be non 
 compos mentis. 
 
 Sec. 17. ' lu case the father or fathers of the jiartles to be if the father 
 married, or of one of them, so under age as aforesaid, shall be non °^ "^'°°r ^e 
 compos mentis, or the guardian or guardians, mother or mothers, or 
 any of them, whose consent is made necessary as aforesaid to tlie 
 marriage of such party or parties, shall be non compos mentis, or 
 in parts beyond the seas, or shall unreasonably, or from imdue 
 motives, refuse, or "withhold his, her, or their consent, to a proper or beyond sea, 
 marriage, then it shall and may be lawful for any jjerson desirous *^*^-' P-irties 
 of marrying, in any of the before-mentioned cases, to apply by the'YordCljan. 
 petition to the Lord Chancellor, Lord Keeper, or the Lords Com- cellor. 
 missioners of the Great Seal of Great Britain for the time being, 
 Master of the Rolls, or Vice-Chancellor of England, who is and are 
 respectively hereby empowered to proceed upon such petition in a 
 summary way ; and in case the marriage proposed shall upon ex- 
 amination appear to be proper, the said Lord Chancellor, Lord 
 Keeper, or Lords Commissioners of the Great Seal for the time 
 being. Master of the Rolls, or Vice-Chancellor, shall juilicially 
 declare the same to be so ; and such judicial declaration shall Ije 
 deemed and taken to be as good and effectual, to all intents and 
 purposes, as if the father, guardian or guardians, or mother of tiie 
 person so petitioning, had consented to such marriage.' 
 
 Sec. 18. ' From and after the said first day of November, no Surrogate to 
 surrogate, hereafter to be deputed by any ecclesiastical judge who ^^^^ ^^^^ °^ 
 hath power to grant licenses, shall grant any such license until he 
 hath taken an oath before the said judge, or before a commissioner 
 appointed by commission under the seal of the said judge, which 
 commission the said judge is hereby authorized to issue, faithfully 
 to execute his office according to law, to the best of his knowledge, 
 and hath given security by his bond in the sum of one hundred 
 pounds to the bishop of the diocese for the due and faithful execu- 
 tion of his said otfice.' 
 
 Sec. 19. ' Whenever a marriage shall not be had within three 
 months after the grant of a license by an}'- archbishop, bishop, or 
 any ordinary or person having authority to grant such license, no 
 minister shall proceed to the solemnization of such marriage until 
 a new license shall have been obtained, unless by banns duly pub- 
 lished according to the provisions of this Act.' 
 
 Sec. 20. ' Nothing hereinbefore contained shall be construed to 
 extend to deprive the Archbishop of Canterbury and his successors, 
 and his and their proper officers, of the right which hath hitherto 
 
 In what case 
 new license to 
 be obtained. 
 
 Right of 
 Archbishop of 
 Canterbury to 
 ;raiit special 
 
 been used, in virtue of a certain statute made in the twenty-fifth licenses, as 
 year of the reign of the late King Henry the Eighth, intituled, 8°2'2i".^ ^"'" 
 " An Act concerning Peter-pence and Dispensations," of granting 
 special licenses to marry at any convenient time or place.' (.r) 
 
 Sec. 22. ' If any persons .shall knowingly and wilfully internuirry Marriage void 
 in any other place than a church, or such public chapel wherein where persons 
 banns may be lawfully published, unless by special license as afore- ]„ any^otS'^^ 
 said, or shall knowingly and wilfully intermarry without due pub- placo"th.an a 
 licatiou of bann.s, or license from a person or persons having church, &c. 
 authority to grant tlie same first had and obtained, or sliall know- 
 
 {x) By sec. 21, persons solemnizing 
 inarriago in any other phice than a church 
 or chapel, or without banns or license, or 
 under pretence of being iu holy orders, 
 
 shall be transported for fourteen years, 
 the prosecution to be commeuced within 
 three years.
 
 278 
 
 Of Blfjamy. 
 
 BOOK V. 
 
 Proof of ftctual 
 rcHidciico of 
 parties not 
 ncccH.snry to 
 validity of 
 iiinrriaj;c, 
 wliutlicr after 
 banns or by 
 license. 
 
 Proviso for the 
 royal family. 
 
 And for mar- 
 riages of 
 Quakers and 
 Je «"s. 
 
 After 1 st of 
 March, 1837, 
 all rules pre- 
 scribed by the 
 rubric to be 
 observed. 
 
 Marriages may 
 be solemnized 
 on production 
 of registrar's 
 certificate. 
 
 ingly and wilfully consent to or acfiuicscc in tlie solemnization of 
 such inaniano by any person not beinj^ in holy orders, the mar- 
 riages of such persons shull \n\ null ;ui(l void to all inti iits and 
 purpo.ses whatsoever.' {y) 
 
 Sec. 2(J. ' After the solenniization of any marriage under a publi- 
 cation of banns, it shall not be necessary in support of such marriage 
 to give any proof of the actual dwelling of the parties in the 
 respective parishes or chapclrics wherein the banns of matrimony 
 were published ; or, where the marriage is by license, it shall not 
 be neces.sary to give any proof that tlie usual place of abode of one 
 of the ])arties, for the space of fifteen days as aforesaid, was in the 
 parish oi chapelry where the marriage was solemnized ; nor shall 
 any evidence in either of the said cases be received to prove the 
 contrary, in any suit touching the validity of such marriage.' {z) 
 
 Sec. 28. ' All marriages shall be solemnized in the presence of 
 two or more credible witnesses, besides the minister wdio shall cele- 
 brate the same ; and immediately after the celebration an entry 
 shall be made in the register.' 
 
 Sec. 30. 'This Act, or anything therein contained, shall not 
 extend to the marriages of any of the royal family.' 
 
 Sec. 31. ' Nothing in this Act contained shall extend to any 
 marriages amongst the people called Quakers, or amongst the per- 
 sons professing the Jewish religion, where both the parties to any 
 such marriage shall be of the people called Quakers, or persons 
 professing the Jewish religion respectively.' («) 
 
 The & 7 Will. 4, c. 8.5, (6) s. 1, enacts, that after the 1st of 
 March, 1887, (c) 'notwithstanding anything in this Act contained, 
 all the rules prescribed by the rubric concerning the solemnizing 
 of marriages shall continue to be duly observed by every person in 
 holy orders of the Church of England who shall solemnize any 
 marriage in England: provided always, that where by any law or 
 canon in force before the passing of this Act it is provided that 
 any marriage may be solemnized after publication of banns, such 
 marriage may be solemnized in like manner on production of the 
 
 {y) By sec. 23, where a marriage is 
 solemnized between parties, one of whom 
 is under age, and not a widower or 
 widow, contrary to the pro^-isions of the 
 Act, by false oath or fraud, the guilty 
 party shall forfeit all property accruing 
 from the marriage. 
 
 (c) Upon an enactment nearly similar, 
 it was determined, in a prosecution for 
 bigamj', where the first marriage was 
 proved to have been by banns, that it 
 was no objection that the parties did not 
 reside in the parish where the banns were 
 published and the marriage was cele- 
 brated. The provision of the statute was 
 considered as an express answer to the 
 objection ; and it appears not to have 
 been adverted to when the point was re- 
 served for the opinion of the judges. 
 Rex V. Hind, R. & K. 253. 
 
 {a^ See the next page. By sec. 33, the 
 Act only extends to England. As to 
 Ireland, see post, p. 308. 
 
 (b) By 37 & 38 Vict. c. 35 (passed 16th 
 July, 187i\ this Act is repealed in part. 
 
 namelj', 
 
 Section Four, the words "in the form 
 of schedule (A. ) to this Act annexed, or 
 to the like eflfect." 
 
 Sections Six and Seven. 
 
 Section Eleven from " in the form of 
 Schedule (C.)" to "on granting such 
 license. " 
 
 Section Twelve. 
 
 Section Fourteen from ' ' and no mar- 
 riage " to the end of that section. 
 
 Section Seventeen, the words "Sub- 
 ject to the approval of the Board of 
 Guardians thereof." 
 
 Sections Twenty-five, Twenty-nine, 
 Thirty-five and Thirty-eight. 
 
 Section Thirty-nine, the words "or if 
 the marriage is by license, within Seven 
 days after such entr)'. " 
 
 Section Fortv-three. 
 
 Schedules (A.), (B.) and (C.) 
 
 (t) By 7 "Will. 4, c. 1, the operation of 
 this Act was suspended until after the 
 last day of June 1837.
 
 CHAP. 
 
 v.] 
 
 Marriage Acts. 
 
 279 
 
 Jews. 
 
 registrar's certificate as hereinafter provided ; (d) provided also, 
 that nothing in this Act contained shall affect the right of the 
 Archbishop of Canterbury and his successors, and his and their 
 proper officers, to grant special licenses to marry at any convenient 
 time and place, or the right of any surrogate or other person now 
 having authority to grant licenses for marriages.' 
 
 Sec. 2. The Society of Friends, commonly called Quakers, and Marriages of 
 also persons professing the Jewish religion, may continue to con- Quakers and 
 tract and solemnize marriage according to the usages of the said 
 society and of the said persons respectively ; and every such 
 marriage is hereby declared and confirmed good in law, provided 
 that the parties to such marriage be both of the same society, or 
 both persons professing the Jewish religion respectively, provided 
 also, that notice to the registrar shall have been given, and the 
 registrar's certificate shall have issued in manner hereinafter pro- 
 vided.' (e) 
 
 (d) The 1 Vict. c. 22, s. 36, after recit- 
 ing this provision, enacts, 'that the giving 
 the notice to tlie superintendent registrar, 
 and the issue of the superintendent regis- 
 trar's certificate, as in the said Act and by 
 this Act provided, shall be used and stand 
 instead of the publication of banus to all 
 intents and purposes where no such pub- 
 lication shall have taken place ; and every 
 parson, vicar, minister, or curate in Eng- 
 land shall solemnize marriage after such 
 notice and certificate as aforesaid in like 
 manner as after due publication of banns : 
 provided always that the cliurch wherein 
 any marriage according to the rites of the 
 Church of England shall so be solemnized 
 shall be within the district of the superin- 
 tendent registrar by whom such certificate 
 as aforesaid shall have been issued.' 
 
 (c) The 23 & 24 Vict. c. 18, recites 
 this clause, and sec. 12 of the 7 & 8 Vict. 
 c. 81 (L), and enacts that after the 30th 
 of June, 1800, marriages may be con- 
 tracted and solemnized according to the 
 usages of the said Society of Eriends, 
 called Quakers, ia England and Ireland 
 respectively, not only in the case pro- 
 vided for by the said recited provisions, 
 but also in cases where one only or where 
 iieitlier of the 2)arties to the marriage 
 shall be a member of the said society ; 
 [provided that the party or parties who 
 shall not be a member or members of tlie 
 said society shall profess with or be 
 of the persuasion of the said society ;] 
 jjrovided also that no person who 
 is not a member of the said society 
 shall bo married according to the 
 usages thereof, unless he or she .shall Ijc 
 authorized tlicreto, under or in pursuance 
 of some genera! rule or rules of the said 
 society, in England and Ireland respec- 
 tively ; and a copy of such general rule 
 or rules purporting to be signed by tho 
 recording clerk for the time being of tlie 
 said society in London and in Dublin 
 respectively, shall bo admitted as evidence 
 of such general rule or rules in all pro- 
 ceedings touching the validity of any such 
 marriage.' IJy sec. 2, all enactments tlien 
 in force relating to marriages according 
 
 to the usages of the said society are ex- 
 tended to every marriage contracted 
 under this Act. 
 
 The part within brackets is repealed 
 by the 37 & 38 Vict. c. 66, the Statute 
 Law Revision Act, 1875. 
 
 By 35 Vict. c. 10, s. 1, ' From and 
 after the 1st day of January, 1873, the 
 said recited Act of the 23rd and 24th 
 years of the reign of Her present Ma- 
 jesty, chapter 18, shall be construed and 
 shall take effect as if the words next 
 hereinafter specified were omitted there- 
 from, namely, " Provided always, that 
 the party or parties who shall not bs a 
 member or members of the said society 
 shall profess with or be of the persuasion 
 of the said society. " Provided that no 
 marriage shall be valid under this Act, 
 unless when notice of the intention to 
 solemnize such marriage is given to the 
 superintendent-registrar in I'mgland, or 
 (as the case may be) to the registrar of 
 marriages in Ireland, as required bylaw, 
 a certificate sliall be produced to such 
 superintendent-registrar or registrar of 
 marriages, purporting to be signed by 
 some registering officer of the said Society 
 of Friends in England or in Ireland re- 
 spectively, to the effect that the party 
 by whom or on whose behalf such notice 
 is given, or each such party (as the case 
 may be), is authorized thereto, under or 
 in pursuance of some general rule or rules 
 of the said society in England or IreLiud 
 respectively, and sueh certificate sliall bo 
 for all purposes conclusive evidence that 
 the party by whom or ou whoso behalf 
 such notice is given, or each such party 
 as the case may bo), is duly authorized 
 to proceed to the accomplishment of such 
 marriagt- according to the usages of tho 
 said society, and the register of such 
 marriage, or a copy thereof duly certified 
 according to law, shall be conclusive evi- 
 dence of the due production of such cer- 
 tificate as aforesaid, but no such certificate 
 shall be reipiired in ciuses where the jiarty 
 giving sucli noti' c shall declare, cither 
 verbally or in writing, if thereunto re- 
 Huircd, that both the parties to the in-
 
 280 
 
 Ku[iorinlt'iiil('iit 
 rej,'i.Mtr.tr of 
 l)irtliH to tio 
 HUpcrintciKli'iit 
 registrar of 
 marriagoa. 
 
 Notice of every 
 iiituiidol luiir- 
 riiigo to lio 
 given to tlio 
 siipcriiiteiiilont 
 registrar of the 
 district. 
 
 ()f l)l[j<l))ilj. 
 
 [iJOOK V. 
 
 Superinteinlent 
 registrar to 
 keep notices in 
 a book. 
 
 Notices to be 
 read at meet- 
 ings of guar- 
 dians. 
 
 Sec. 3. ' 'I'lic .sii|tciiii(('iul(;iil ic^f'i.'strar of Itirtlis ;viid dcutli.s of 
 every union, parish, <jr place shall be, in right of lii.s office, super- 
 intcndi'nt registrar of marriages within sucli union, parish or place, 
 and such union, parish, or place shall be deemed the district of 
 such superintendent registrar of marriages.' 
 
 Sec. 4. ' In every case of marriage intended to be solemnized in 
 England after the said liisi d.iy of March, (/') according to the 
 rites of the C/hurch of England (unle.s.s by license or by .special 
 license, or after publication of ])anns), and in every case of mar- 
 riage intended to be solemnized in England after the .said first day 
 of i\Iarch, according to the usages of the Quakers or Jew.s, or 
 according to any form authorized by this Act, one of the parties 
 shall give notice under his or her hand in theft^rm of .schedule (A.) 
 to this Act annexed, or to the like effect, (//) to the superintendent 
 registrar of the district within which the parties shall have dwelt 
 for not le.ss than seven days then next preceding, or if the parties 
 dwell in the districts of different superintendent registrars shall 
 give the like notice to the superintendent registrar of each district, 
 and shall state therein the name and surname and the profes- 
 sion or condition of each of the parties intending mairiage, the 
 dwelling place of each of them, and the time not being less than 
 seven days during which each has dwelt therein, and the church or 
 other building in which the marriage is to be solemnized ; pro- 
 vided that if cither party shall have dwelt in the place stated 
 in the notice during more than one calendar month, it may be 
 stated therein that ho or she hath dwelt there one mouth and 
 upwards.' ((/) 
 
 Sec. 5, ' The superintendent registrar shall file all such notices, 
 and keep them with the records of his office, and shall also 
 forthwith enter a true copy of all such notices fairly into a book, 
 to be for that purpose furnished to him by the registrar-general, 
 to be called " the marriage notice book," the cost of iDroviding 
 which shall be defrayed in like manner as the cost of providing 
 register books of births and deaths ; {(jg) and the marriage notice 
 book shall be open at all reasonable times without fee to all 
 persons desirous of inspecting the same ; and for every such entry 
 the superintendent registrar shall be entitled to have a fee of one 
 shilling.' 
 
 Sec. G. 'If such superintendent registrar shall be clerk to the 
 guardians of any poor-law union, or of any parish or place com- 
 prising the district for wdnch such superintendent registrar shall 
 act, he shall read such notices as hereinafter directed ; and if he 
 shall not be such clerk, then he shall transmit to such clerk on the 
 day previous to each weekly meeting of such guardians all such 
 
 tended marriage are either members of 
 the said society or in profession with or 
 of the pcrsunsion thereof. 
 
 All marriages solemnized in England 
 before Julj' 1, 1837, and in Ireland before 
 April 1, 1845, according to the usages of 
 the Quakers or Jews, are rendered valid 
 by the 10 h 11 Tict. c. 58, j.rovidod the 
 parties were both Quakers or both persons 
 professing llio Jewish religion. As to 
 mairiages of Jews in Ireland, see 7 & 8 
 Vict. c. 81, s. 13 ; 3-1 & 35 Vict. c. 49, 
 
 s. 28. See 19 & 20 Vict. c. 119, s. 21, 
 fost, p. 293. 
 
 (/) See note to sec. 1, ante, p. 278. 
 
 (.//■) See ante, p. 278, note (/>). 
 
 (g) Dy 1 Vict. c. 22, s. 10, the regis- 
 trar-general may unite two or more dis- 
 tricts, and bv sec. 11 may divide districts. 
 See the 19 & 20 Vict. c. 119, s. Z,'post, 
 p. 289. 
 
 ((/jr) Repealed as to the costs of regis- 
 ters by the 21 & 22 Vict. c. 25, s. ti.
 
 CHAP, v.] 
 
 3Iarriage Acts. 
 
 2Sl 
 
 notices of intended marriage as he shall have received on or since 
 the day previous to the weekly meeting immediately preceding 
 the same ; and such clerk shall read such notices immediately after 
 the minutes of the proceedings of such guardians at their last meet- 
 ing shall have been read ; and such notices shall be so read three 
 several times in three successive weeks at the weekly meetings of 
 such guardians, unless in any case license for marriage shall be 
 sooner granted, and notice of such license being granted shall have 
 been given to such clerk ; provided also, that if it shall happen 
 that the board of guardians of any such union, parish, or place 
 shall not so meet, it shall be sufficient for the purposes of this Act 
 that such notices shall be read at any meeting of such guardians 
 which shall be held within twenty-one days from the day of such 
 notice being entered.' (A) 
 
 The 1 Vict. c. 22, s. 24, reciting this section, and that ' it may 
 happen in certain superintendent registrars' districts that there 
 may be no such guardians,' enacts, ' that in every such case, but 
 only until the election of such board of guardians and of a clerk to 
 their board, every notice of marriage given according to the provi- 
 sions of the said Act for marriages, or a true and exact copy thereof, 
 under the hand of the superintendent registrar, shall be suspended 
 in some conspicuous place in the office of the superintendent regis- 
 trar during seven successive days, if the marriage is to be solem- 
 nized by license, or twenty-one successive days if the marriage is 
 to be solemnized without license, before any marriage shall be 
 solemnized in pursuance of such notice ; and the particulars of 
 every such notice shall be sent by the superintendent registrar to 
 every registrar of marriages within his district, and shall be open 
 to the inspection of every one who shall apply at reasonable times 
 to such registrar to inspect the same.' (i) 
 
 By the 6 & 7 Will. 4, c. 85, s. 7, {j) ' after the expiration of seven 
 days if the marriage is to be solenuiized by license, or of twenty- 
 one days if the marriage is to be solemnized without license, after 
 the entry of such notice, the superintendent registrar, upon being 
 requested so to do by or on behalf of the party by whom the 
 notice was given, shall issue under his hand a certificate in the 
 form of schedule (B.) to this Act annexed, jDrovided that no lawful 
 impediment be shown to the satisfaction of the superintendent 
 registrar why such certificate should not issue, and provided that 
 the issue of such certificate shall not have been sooner forbidden 
 in manner hereinafter mentioned by any person or persons autho- 
 rized in that behalf as hereinafter is provided ; and every such 
 certificate shall state the particulars set forth in the notice, the 
 day on which the notice was entered, and that the fidl period of 
 seven days or of twenty-one days (as the case may be) has elapsed 
 since the entry of such notice, and tliat the i.ssue of such certifi- 
 cate has not been forbidden by any person or persons authorized 
 in that behalf; and for every such certificate the superintendent 
 registrar shall be entitled to have a fee of one siiillinfr. 
 
 Notices of 
 marriage to Le 
 suspciuled in 
 the superin- 
 tendent regis- 
 trar's otfice, 
 instead of 
 being read at 
 tlie meetings of 
 guardians, &c. 
 
 After seven 
 days, or 
 twenty-one 
 days, certificate 
 of notice to be 
 given upon 
 demand. 
 
 {h) 'J'liis section is now repealed, see 
 ante, p. 278, note (6). See the 19 & '20 
 Vict. c. 119, .s. l,posl, p. 288. 
 
 (/) Tliis section is repealed by 37 & 38 
 Vict. c. 35, the Statute Law Kcvision 
 
 Act, 1874. See sec. 5 of 19 & 20 Vict, 
 c. 119, post, p. 290. 
 
 (_;■) This section is now repealed, sec 
 antf, p. 278, note (/').
 
 282 
 
 Of Buinmy. 
 
 [book v. 
 
 Issue of 
 BU]icrintcnilcnt 
 registrar's 
 ccrtifu-jitc may 
 lie forliiiKlun. 
 
 Consent. 
 
 Superintendent 
 
 registrar may 
 grant licenses 
 for marriage. 
 
 Superintendent 
 registrar to 
 give secui'ity. 
 
 Proviso. 
 
 Certificate to 
 be given before 
 the license is 
 granted. 
 
 By sec. 8 the registrar-general is to furnish the superintendent 
 registrars with forms (jf certificates, which are to be distinguished 
 in certain ways wliere the marriage is by license, and wliere it is 
 without license. 
 
 Sec. 9. ' Any person authorized in that behalf may forbid the 
 issue of the superintendent registrar's certificate by writing at any 
 time before the issue of such certificate the word ' forbidden ' 
 opposite to the entry of the notice of such intended marriage in 
 tlu' marriage notice book, and by subscribing thereto liis or her 
 name and place of abode, and his or her character, in respect of 
 either of the parties, by reason of which he or she is so authorized ; 
 and in case the issue of any such certificate shall have been so 
 forbidden the notice and all proceedings thereupon shall be utterly 
 void.' 
 
 Sec. 10. 'After the said first day of March, (/.•) the like consent 
 shall be required to any marriage in England solemnized by 
 license as Avould have been required by law to marriages solem- 
 nized by license immediately before the passing of this Act ; and 
 every person who.se consent to a marriage by license is required 
 by law is hereby authorized to forbid the Issue of the super- 
 intendent registrar's certificate, whether the marriage is intended 
 to be by license or without license.' 
 
 Sec. 11. 'After the said first day of March (Ic) every superin- 
 tendent registrar shall have authority to grant licenses for mar- 
 riage in au}^ building registered as hereinafter provided within 
 any district under his superintendence, or in his office [in the form 
 of schedule (C) to this Act annexed, and for every such licen.se 
 shall be entitled to have of the party requiring the same the sum 
 of three pounds above the value of the stamps necessary on grant- 
 ing such license] ; (l) and every superintendent registrar .shall four 
 times in every year, on such days as shall be appointed by the 
 registrar-general, make a return to the registrar-general of every 
 license granted by him since his last return, and of the particulars 
 stated concerning the parties : provided always, that no superin- 
 tendent registrar shall grant any such license until he shall have 
 given security by his bond in the sum of one hundred pounds to 
 the registrar-general for the due and faithful execution of his 
 office : provided also, that nothing herein contained shall authorize 
 any superintendent registrar to grant any license for marriage in 
 any church or chapel in which marriages may be solemnized ac- 
 cording to the rites of the Church of England, or in any church or 
 chapel belonging to the Church of England or licensed for the 
 celebration of Divine worship according to the rites and ceremonies 
 of the Church of England, or any license for marriage in any 
 registered building which shall not be within his district.' 
 
 Sec. 12. {m) ' Before any license for marriage shall be granted by 
 any such superintendent registrar one of the parties intending 
 marriage shall appear personally before such superintendent 
 registrar, and in case the notice of such intended marriage shall 
 not have been given to such superintendent registrar, shall deliver 
 
 {Tc) See note to sec. 1, ank, p. 278, 
 note (ft). 
 
 (/) See the 19 & 20 Vict. c. 119, s. 10, 
 post, p. 291. The part vrithin brackets 
 
 is now repealed, see ante, p. 278, note (ft). 
 (»i) Tiiis section is now repealed, see 
 ante, p. 278, note (ft).
 
 CHAP, v.] 
 
 Marriage Acts. 
 
 2S3 
 
 to him the certificate of the superintendent registrar or superin- 
 tendent registrars to whom such notice shall have been given, 
 and such party shall make oath, or shall make his or her solemn 
 aflfirmation or declaration instead of taking an oath, that he or 
 she believeth that there is not any impediment of kindred or 
 alliance or other lawful hindrance to the said marriage, and that 
 one of the said parties hath for the space of fifteen days imme- 
 diately before the day of the grant of such license had his or her 
 usual place of abode within the district within which such mar- 
 riage is to be solemnized, and where either of the parties, not 
 being a widower or widow, shall be under the age of twenty-one 
 years, that the consent of the person or persons whose consent to 
 such marriage is required by law has been obtained thereto, or 
 that there is no person having authority to give such consent, as 
 the case may be ; and all such licenses and declax'ations shall be 
 respectively liable to the same stamp duties as licenses for mar- 
 riage granted by the ordinary of any diocese, and affidavits made 
 in order to j^rocure the same.' 
 
 Sec. 13. 'Any person, on payment of five shillings, may enter 
 a caveat with the superintendent registrar against the grant of a 
 certificate or a license for the marriage of any person named 
 therein ; and if any caveat be entered with the superintendent 
 registrar, such caveat being duly signed by or on behalf of the 
 person who enters the same, together with his or her place of 
 residence, and the gi'ound of objection on which his or her caveat 
 is founded, no certificate or license shall issue or be granted until 
 the superintendent registrar shall have examined into the matter 
 of the caveat, and is satisfied that it ought not to obstruct the 
 grant of the certificate or license for the said marriage, or until 
 the caveat be withdrawn by the party who entered the same ; 
 provided that in cases of doubt it shall be lawful for the superin- 
 tendent registrar to refer the matter of any such caveat to the 
 registrar general, who shall decide upon the same : provided 
 likewise, that in case of the superintendent registrar refusing the 
 grant of the certificate or license, the person applying for the same 
 shall have a right to appeal to the registrar-general, who shall 
 thereupon either confirm the refusal or direct the grant of the 
 certificate or license.' 
 
 Sec. 14. 'After the said first day of March {n) no marriage after 
 such notice as aforesaid, unless by virtue of a license to be granted 
 by the superintendent registrar, shall be solemnized or registered 
 in England until after the expiration of twent3'-one days after the 
 day of the entry of such notice as aforesaid ; [and no marriage 
 shall be solemnized by the license of any superintendent registrar 
 or registered until after the expiration of seven days after the day 
 of the entry of such notice as aforesaid.'] (o) 
 
 Sec. 15. 'Whenever a marriage shall not be had within three 
 calendar mouths after the notice shall iiave been so entered by the 
 superintendent registrar, the notice and certificate, and any license 
 which may have been granted thereupon, and all other proceed- 
 ings thereupon, shall be utterly void ; and no person shall proceed 
 to solemnize the marriage, nor shall any registrar register the 
 
 {n) See note to sec. 1, ante, p. 278, note (/'). 
 
 (o) The part within brackets is now rci)ealed, see ante, p. 278, note {b). 
 
 Caveat may be 
 lodged with 
 superiateiident 
 registrar 
 against grant 
 of license of 
 certificate. 
 
 Marriages not 
 to be solem- 
 nized until 
 after twenty- 
 one day.s 
 after entry of 
 notice, unless 
 by license. 
 
 New notice 
 required after 
 three months.
 
 284 
 
 Of Bigamy. 
 
 [book v. 
 
 PIUCCH of 
 
 worsliip may 
 111! iT;;i-.ti'ri'(l 
 for soltiii- 
 iiizin;; iiiar- 
 riiL'cs tliiTfiii. 
 
 Marriages may 
 be solemnized 
 in sueli regis- 
 tered places, 
 in the presence 
 of some regis- 
 trar and of 
 two witnesses. 
 
 same, until now notice sliall have been ;,Mvcn, and cntiy made, 
 and oertilicate thereof given, at the time and in the manner 
 aforesaid.' ( /;) 
 
 See. IS, 'Any proprietor or trustee of a .separate building, cer- 
 tified according to law as a place of religious worship, may ajiply 
 ti) the superintendent registrar of the district, in order that such 
 l)uilding may be registered for solemnizing marriages therein, and 
 in such case shall deliver to the superintendent registrar a cer- 
 tiheate, signed in duplicate by twenty lujuseholders at tlie least, 
 that such building has been u.sed by them during one year at the 
 least as their usual place of public religious worship, and that they 
 arc desirous that such place should be registered as aforesaid, each 
 of which certificates shall ])e countersigned by tlie proprietor or 
 trustee by whom the same shall be delivered ; and the superin- 
 tendent registrar shall send both certificates to the registrar- 
 general, who shall register such building accoidingly in a book to 
 be kept for that purpose at the general register office : and the 
 registrar-general shall indorse on both certificates the date of the 
 registry, and shall keep one certificate with the other records of 
 the general register office, and shall return the otlier certificate to 
 the superintendent regi.strar, wlio shall keep the same with the 
 other records of his office ; and the superintendent registrar shall 
 enter the date of the registry of such building in a book to be 
 furnished to him for tliat purpose by the registrar-general, and 
 shall give a certificate of such registry under his hand, on parch- 
 ment or vellum, to the proprietor or trustee by whom the certi- 
 ficates are countersigned, and shall give public notice of the 
 registry thereof by advertisement in some newspaper circulating 
 within the county, and in the " London Gazette." ' {q) 
 
 Sec. 20. ' After the expiration of the said period of twenty-one 
 days, or of seven days if the marriage is by license, marriages may 
 be solemnized in the registered building stated as aforesaid in the 
 notice of such marriage, between and by the parties described in 
 the notice and certificate, according to such form and ceremony as 
 they may see fit to adopt : provided nevertheless, that every such 
 marriage shall be solemnized with oj^cn doors, between the hours 
 of eight and twelve in the forenoon, in the presence of some 
 registrar of the district in which such registered building is situate, 
 and of two or more credible witnesses : provided also, that in some 
 part of the ceremony, and in the presence of such registrar and 
 witnesses, each of the parties shall declare, 
 
 "I do solemnly declare, that I know not of any lawful impe- 
 diment why I, A. B., may not be joined in matrimony to 
 
 a Dr 
 
 And each of the parties shall say to the other, 
 
 " I call upon these persons here present to witness that I, 
 A. B., do take thee, C. D., to be my lawful wedded wife 
 [or husband]." 
 
 (/)) By sec. 16, the superintendent 
 registrar's certificate or license is to be 
 delivered to the person by or before whom 
 the marriage is solemnized. 
 
 {q) By sec. 19, on the removal of the 
 same congregation the new place of wor- 
 
 ship may be immediately registered, in- 
 stead of the one disused, and after .sucli 
 substitution it shall not be lawful to 
 solemnise any marriage in such disused 
 building.
 
 CHAP, v.] Marriage Acts. 285 
 
 Provided also, that there be no lawful impediment to the marriage 
 of such parties.' 
 
 Sec. 21. 'Any persons who shall object to marry under the Marriages may 
 provisions of this Act in any sucli registered building may, after be celebrated 
 due notice and certificate issued as aforesaid, contract and solem- superintendent 
 nize marriage at the office and in the presence of the superinten- registrar, 
 dent registrar and some registrar of the district, and in the presence 
 of two witnesses, with open doors, and between the hours afore- 
 said, makincr the declaration and usincj the form of words herein- 
 before provided in the case of marriage in any such registered 
 building,' (7') 
 
 Sec. 25. (■§) ' After any marriage shall have been solemnized it Proof of resi- 
 shall not be necessary in support of such marriage to G;ive any ^^^^^? °^ 
 
 J L L ^ o o ^ •' parlies or con- 
 
 proof of the actual dwelling of either of the parties previous to ggjjt not neces- 
 the marriage within the district wherein such marriage was solem- sary to esia- 
 nized for the time required by this Act, or of the consent of any ^.^'^j^ *^® ™^''' 
 person whose consent thereunto is required by law : nor shall any 
 evidence be given to prove the contrary in any suit touching the 
 validity of such marriage.' 
 
 Sec. 2Q. ' With the consent under the hand and seal of the patron Bishops, with 
 and incumbent respectively of the church of the parish or district consent of 
 in which may be situated any public chapel with or without a iicen°se\™pcls 
 chapelry thereunto annexed, or any chapel duly licensed for the for the soiem- 
 celebration of divine service according to the rites and ceremonies nization of 
 of the Church of England, or any chapel the minister whereof is plfjujoug^ 
 duly licensed to officiate therein according to the rites and cere- places, 
 monies of the Church of England, or without such consent after 
 two calendar months' notice in writing given by the registrar of 
 the diocese to such patron and incumbent respectively, the bishop 
 of the diocese may, if he shall think it necessary for the due accom- 
 modation and convenience of the inhabitants, authorize by a license 
 under his hand and seal the solemnization of marriages in any such 
 chapel for persons residing within a district the limits whereof shall 
 be specified in the bishop's license, and under such provisions as to 
 the amount, appropriation, or apportionment of the dues, and as to 
 other particulars, as to the said bishop may seem fit, and as may be 
 specified in the said license ; provided that it shall be lawful for 
 any patron or incumbent who shall refuse or withhold consent to the 
 grant of any such license to deliver to the bishop under his or her 
 hand and seal, a statement of the reasons for which such consent 
 shall have been so refused or withholden ; and no such license shall 
 be granted by any bishop until he shall have inquired into the 
 matter of such reasons ; and every instrument of consent of the 
 patron and incumbent, or, if such consent be refused or withholden, 
 a copy of the notice under the hand of the registrar, and every 
 statement of reasons alleged as aforesaid by the patron or incum- 
 bent, with tiie bisliop's adjudication thereupon under his hand and 
 seal, shall be registered in the registry of the diocese ; and thence- 
 forth and until the said license be revoked marriages solemnized 
 
 (r) See. 22 rcqulates the in.irrinpc fees rcLcister hook arc to be jjiven quarterly to 
 
 of the re<;istrar. I5y sec. 213, llie registrar tin- suiu'riiiti'iulent registrar, 
 
 is to register all inarriat;es solciiiiiized bo- (s) This .section is now repealed, sec 
 
 fore him in books to be sent by tlie regis- ante, p. 278, note {b), 
 trar-geueral, and copies of the marriage
 
 286 
 
 Of Bifjamy. 
 
 [book v. 
 
 Notice of Hucli 
 licenses to lie 
 ullixeil ill 
 cliaiiels. 
 
 Marriiipcs per- 
 formed in such 
 eliapels to I'O 
 iiiuier the same 
 regulations as 
 
 tllOSC \1QV- 
 
 fonneil in 
 
 parish 
 
 churches. 
 
 Option to 
 parties to be 
 married at 
 parisli clnirch. 
 
 Marriages void 
 if wnduly 
 solemnized 
 with the know- 
 ledge of both 
 parties. 
 
 •1 Geo. 4, c. 76. 
 
 ill such (thapcl shall be as valid to all intents and purposes as if 
 tho same had boon solemnized in the parish church, or in any 
 chapel whore marriages nu<,dit herelol'oro have been legally 
 s()leinni/e(l.' (/) 
 
 See. 2i). (/') 'There sIimII l)e pl;ice(l in some conspicuous part in 
 the interior of every chai)ol in respect of which such license shall 
 bo given as aforesaid a notice in the words following : " Marriages 
 may be solemnized in this chapel.' " {v) 
 
 Sec. 30. 'All provisions which shall from time to time be in 
 force relative to marriages, and to providing, keeping, and trans- 
 mitting register books and copies of registers of marriages solem- 
 nized in any parish church, shall extend to any chapel in which 
 the solemnization of marriages shall be authorized as afore.said, in 
 the same manner as if the same were a parish church, and every- 
 thing required by law to be done relating thereto by the rector, 
 vicar, curate, or churchwardens respectively, of any parish church 
 shall be done by the officiating minister, chapelwarden, or other 
 person exercising analogous duties in such chapel respectively.* 
 
 Sec. 31. ' Notwithstanding any such license as aforesaid to 
 solemnize marriages in any such chapel, the parties may, if they 
 think fit, have their marriage solemnized in the parish church, or 
 in any chapel in Avhich heretofore the marriage of such parties 
 or either of them might have been legally solenmized.' (iy) 
 
 Sec. 42. ' If any persons [x) shall knowingly and wilfully inter- 
 marry after the said first day of March under the provisions of 
 this Act in any place other than the church, chapel, registered 
 building, or office or other place specified in the notice and certi- 
 ficate as aforesaid, or without due notice to the superintendent 
 registrar, or without certificate of notice duly issued, or without 
 license, in case a license is necessary under this Act, or in the 
 absence of a registrar or superintendent registrar where the pre- 
 sence of a registrar or superintendent registrar is necessary under 
 this Act, the marriage of such persons, except in any case herein- 
 after excepted, shall be null and void : Provided always, that 
 nothing herein contained shall extend to annul any marriage 
 leo-ally solemnized according to the provisions of an Act passed in 
 the fourth year of his late Majesty George the Fourth, intituled 
 " An Act for amending the Laws respecting the Solemnization 
 of Marriages in England." ' (y) 
 
 (/) Sec. 27 provides for the appropria- 
 tion of fees on marriages performed in 
 siicli chapels. By sec. 28, the patron or 
 incumbent may ai>peal to the archbishop 
 against such licenses. 
 
 {u) This sec. is now repealed, see 
 ante, p. 278, note {b). 
 
 (v) See 1 Vict. c. 22, s. 33, post, p. 
 287. 
 
 («•) By sec. 32 the bishop, with con- 
 sent of the archbishop, may revoke such 
 licenses ; in which case, by sec. 33, the 
 ret'isters are to be sent to the incumbent 
 of^the parish church. By sec. 34, the 
 registrars of the dioceses are to send to 
 the register otiice, yearly, lists of the 
 licensed chapels within their districts, 
 and a list of all chapels and buildings 
 registered, to be printed. By sec. 36 
 
 the registrar may ask certain particulars 
 of the parties. By sec. 37 all persons 
 vcxatiously entering caveats are liable 
 to costs and damages. By sec. 39, 
 (amended by 37 & 38 Vict. c. 35), ante, 
 p. 278, note (6), all persons unduly 
 solemnizing marriage are guilty of felony. 
 By sec. 40 the superintendent registrars 
 who unduly issue certificates are guilty 
 of felony ; and by section 41 all prose- 
 cutions are to be commenced within three 
 years. Sec also 1 Vict. c. 22, s. 3. 
 
 (x) See post, p. 297. 
 
 ()/) By sec. 44, the provisions of the 
 Eegistry Act are extended to this Act. 
 
 By sec. 45, ' this Act shall extend 
 only to England, and shall not extend 
 to the marriage of any of the royal 
 familv.'
 
 CHAP. 
 
 y-1 
 
 Marriage Acts. 
 
 The 1 Vict. c. 22, (z) s. 23, enacts, that 'the registrar-general, 
 under the direction of one of her Majesty's principal secretaries of 
 state, shall take order that the solemn declaration and form of 
 words provided to be used in the case of marriages under the said 
 Act for marriages be truly and exactly translated into the Welsh 
 tongue, and shall cause the same so translated to be furnished 
 to every registrar of marriages throughout Wales, and in all places 
 where the Welsh tongue is commonly used ; and it shall be lawful 
 to use the declaration and form of words so translated, and pub- 
 lished by authority, in all places where the Welsh tongue is com- 
 monly used or preferred, in such m.anner and form and to the same 
 intents and purposes as by the said Act is prescribed in the Eng- 
 lish tongue.' 
 
 Sec. 33. ' The banns of marriage of any persons may be pub- 
 lished in any chapel licensed by the bishop, according to the pro- 
 visions of the said Act for marriages, for the solemnization of 
 marriages, in which those persons might lawfully be married ; and 
 instead of the notice required by the said Act the words " Banns 
 may be published and marriages may be solemnized in this 
 chapel " shall be placed in some conspicuous part in the interior 
 of every such chapel.' 
 
 Sec. 34, reciting, that 'doubts may arise whether under the 
 said recited Acts it is lawful for the bishop to license chapels for 
 marriages between parties one only of whom resides within the 
 district specified in such license ; ' enacts that ' all such licenses 
 shall be construed to extend to and authorize marriages in such 
 chapels between parties one or both of whom is or are resident 
 within the said district ; provided always, that where the parties 
 to any marriage intended to be solemnized after publication of banns 
 shall reside within different ecclesiastical districts the banns for 
 such marriage shall be published as well in the church or chajicl 
 wherein such marriage is intended to be solemnized [as in the 
 chapel licensed under the provisions of the said recited Act for the 
 other district within which one of tiie parties is resident, and if 
 there be no such chapel then in the church or chapel in which the 
 banns of such last-mentioned party might be legally published if 
 the said recited Act had not been passed.' 
 
 Sec. 35. 'Any building which shall have been licensed and used 
 during one year next before registration for public religious 
 worship as a Roman Catholic chapel exclusively shall be taken to 
 be a separate building for the purpose of being registered for the 
 celebration of marriages, notwithstanding the same shall be under 
 the same roof with any other building, or shall form a part onl}^ of 
 a building.' 
 
 The 3 & 4 Vict. c. 72, s. 1, reciting the 4 Geo. 4, c. 76, 
 & 7 Will. 4, c. 8o, and 1 Vict. c. 22, and that it is expodiont to 
 restrain marriages under the () & 7 Will. 4, from being solemnized 
 out of the district in which one of the parties dwells, unless either 
 of the parties dwells in the district, within which there is not any 
 registered building, enacts, ' that it is not and shall not be lawful 
 for any superintendent registrar to give any certificate of notice of 
 marriage where the building in which the marriafje is to be 
 
 287 
 
 Provision for 
 marriages in 
 the Welsh 
 tongue. 
 
 Banns may be 
 iniblished in 
 chapels where 
 marriages may 
 be solemnized. 
 
 Marriages may 
 be in licensed 
 chapels, 
 though only 
 one of the 
 jiailies is resi- 
 dent in the 
 district. 
 
 Publication of 
 banns where 
 the parties 
 reside in 
 different dis- 
 tricts. 
 
 (z) The 37 & 38 Vict. c. 35, repeals 
 this Act iu part, uaiucly, sees. 7 aud 2i. 
 
 Sec. 26, from "or by nn act," to "for 
 marriages iu Englaml," aud sec. 32. 
 
 Any building 
 used exclu- 
 .'iively as a 
 llonian 
 
 Catholic chapel 
 for one year 
 may be re- 
 gistered for 
 celebration of 
 marriages. 
 
 Certificate of 
 notice not to 
 be granted for 
 marriages out
 
 283 
 
 ( >f Ih'i/dijti/. 
 
 [book 
 
 of tlic (liHti-i';t 
 \\ licri! tilt) 
 |i.irlii's ilwcll, 
 
 Ill wliiil caso 
 marri.-i;^!^ ni:iy 
 \n: .S'llciiiiii/.i'il 
 cult (if till.' ilis- 
 tiict ill which 
 tho ]i:irlic.s 
 (hvi'll. 
 
 Provision as to 
 marriages of 
 members of 
 the Society of 
 Friends, and 
 Jews. 
 
 No notice of 
 marriage to bo 
 read or pub- 
 lished l)efore 
 Poor-law 
 guardians, or 
 be transmitted 
 to tire clerk 
 of such 
 guardians. 
 
 Every notice 
 of marriage to 
 be accom- 
 
 soloinnizod, .as .statcil in lli'' notino, sliull not 1)0 witliin the 
 (lislrict wlieiviii one of the pjirtics shall have; dwelt for the titne 
 iviiniicd hy the .said Act of hi.s late Majesty, except as hereinafter 
 is enacted.' 
 
 Sec. 2. 'It shall \>r lawlnl I'm- ;iny i».'irty intending marriage 
 under (he provisions of the said Act of his late Majesty, in addition 
 (() the iiotic(! re(|uire(l to he f,nven hy that Act, to declare at the 
 time iif ,i;i\iii.'-;' such notice, hy indorsement thereon, the relif^ions 
 ;i])pellat/Km of the; hody of (Jhristians to which the party pro- 
 fesselh to lieJonLj, and (lie form, rite, or ceremony which tlie 
 jiarties desire to adopt in solemnizinj:,' their marriage, and that, to 
 the hest of his or lier knowled^^c and helief, there is not within the 
 district in which one of the parties dwells any registered huihling 
 in which marriage is solemnized acconhng to such form, rite, or 
 ceremony, and the district nearest to the residence of that party 
 in wliicli a hnilding is registered wherein marriage is so solemnized, 
 and the registered huilding within such district in which it is 
 intended to solemnize their marriage; and after the expiration of 
 seven days or twenty-one days, as the case may require, under the 
 said Act of his late Majesty, it shall he lawful for the superin- 
 tendent registrar to whom any such notice shall have been given 
 to issue his certificate, according to the provisions of that Act ; and 
 after the issuing of such certificate the parties shall be at liberty 
 to solemnize their marriage in the registered building stated in 
 such notice : Provided always, that after any marriage shall have 
 been solemnized it shall not be necessary in support of such 
 marriage to give any proof of the truth of the facts herein autho- 
 rized to be stated in the notice, nor shall any evidence be given 
 to prove the contrary in any suit touching the validity of such 
 marriage.' (a) 
 
 Sec. 5. ' Notwithstanding anything herein or in the said recited 
 Acts or cither of them contained, the Society of Friends commonly 
 called Quakers, and also persons professing the Jewish religion, 
 may lawfully continue to contract and solemnize marriage accord- 
 ing to the usages of the said society and of the said persons 
 respectivel}'-, after notice for that purpose duly given, and certifi- 
 cate or certificates duly issued, pursuant to the provision of the 
 said recited Act of his late Majesty, notwithstanding the building 
 or place wherein such marriage may be contracted or solemnized 
 be not situate within the district or either of the districts (as the 
 case may be) in which the parties shall respectively dwell.' 
 
 The 19 & 20 Vict. c. 119, which came into force Jan. 1, 1857, 
 recites that it is expedient to alter and amend the 6 & 7 Will. 4, 
 c. 85, 1 Vict. c. 22, and 3 & 4 Vict. c. 72, and by sec. 1 enacts, 
 ' In case of any party intending marriage under the provisions of 
 any of the said recited Acts or of this Act, no notice of such 
 intended marriage shall be read or published before the guar- 
 dians of any Poor-law union or parish or place, or be trans- 
 mitted by any superintendent registrar to the clerk of any such 
 guardians.' 
 
 Sec. 2. ' In c.ise any party shall intend marriage, under the 
 provisions of any of the said recited Acts or of this Act, the party 
 
 {«) See the 19 & 20 Vict. c. 119, ss. 13, 11, yosf, p. 292,
 
 CHAP, v.] Marriage Acts- 289 
 
 so intending marriage shall, at the time of giving to the super- panicd by a 
 intendent registrar or respective superintendent registrars, as the solemn decla- 
 case may he, the notice required by the said recited Acts or oneTftbe 
 either of them, make and sign or subscribe a solemn declaration parties, that 
 in writing, in the body or at the foot of such notice, that he or t^ere is no 
 she believes that there is no impediment of kindred or alhance or France to'such 
 other lawful hindrance to the said marriage, and that the parties man-iuge, &c. 
 to the said marriage, in case the marriage is intended to be had 
 without license, have, for the space of seven days immediately 
 preceding the giving of such notice, had their usual place of 
 abode and residence within the district of the superintendent 
 registrar or respective superintendent registrars to whom such 
 notice or notices, as the case may be, shall be so given ; or, in 
 case such marriage is intended to be had by license, that one of 
 the said parties hath for the space of fifteen days immediately 
 preceding the giving of such notice had his or her usual place of 
 abode and residence within the district of the superintendent 
 registrar to whom such notice shall be so given ; and when either 
 of the parties intending marriage, and not being a widower or 
 widow, shall be under the age of twenty-one years, the party 
 making such declaration shall further declare that the consent of 
 the person or persons whose consent to such marriage is by law 
 required has been given, or (as the case may be) that there is no 
 person whose consent to such marriage is by law required ; and 
 every declaration so made as aforesaid shall be signed and sub- 
 scribed, by the party making the same, in the presence of tlie 
 superintendent registrar to whom the notice of marriage contain- 
 ing such declaration is given, or in the presence of his deputy, or 
 of some registrar of ])irths and deaths or of marriages for the dis- 
 trict in which the party giving such notice resides, or of the 
 deputy of such registrar, who shall respectively attest the same 
 by adding thereto his name, description, and place of abode ; and 
 no certificate or license for marriage shall be issued or granted 
 pursuant to any such notice as aforesaid unless the said notice be 
 accompanied by such solemn declaration duly made and signed or 
 subscribed and attested as aforesaid ; and every person who shall Tersons 
 knowingly or wilfully make and sign or subscribe any false r^'?,^"]^^'^' 
 declaration, or who shall sign any false notice for the purpose of declarations 
 procuring any marriage under the provisions of any of the said tosufTerthe 
 recited Acts or this Act, shall suffer the penalties of perjury.' (b) penalties of 
 
 Sec. 3. ' Every notice of man-iage which shall be given under ^^'^^"'^■" 
 the provisions of any of the said recited Acts or of this Act, after t,f marriage. "^ 
 this Act shall have come into operation, shall be in the form of 
 Schedule (A.) to this Act annexed, or to the like effect ; and in 
 every case where the marriage is intended to be had and solem- 
 nized under the provisions of the said recited Act of the third and 
 fourth years of Her Majesty, chapter seventy-two, such notice 
 shall, in addition to the several particulars comprised in the said 
 schedule, contain the declaration recpiired to be made by one of 
 
 {b) A man may iliaiij^i' his surnanii' hy in sif^niiii; a notice for the jmrposp of 
 
 nse ami repntation, and if by use ami jiromuinf^ his marriage under tiie G & 7 
 
 reputation ho has aennired a new one, lie Will. 4, c. 85. H. v, Jolin Smith, 4 F. & 
 
 is not indictable under the 19 & 20 F. 101)9. 
 Vict. c. 19, s. 2, for using the new name 
 
 VOL. III.
 
 2f)0 
 
 Of Bi(jainy. 
 
 [book v. 
 
 Notice of mai- 
 riiijjc witlioiil 
 license to lie 
 aHixed in 
 superintciulent 
 rc^;isti'ar'.s 
 office. 
 
 Notice of mar- 
 riage by- 
 license not to 
 be suspended 
 in the office of 
 the superinten- 
 dent registrar, 
 
 lu case of 
 marriage by 
 license, notice 
 given to the 
 supcrinteuilent 
 registrar of one 
 district shall 
 be sufficieut. 
 
 tho parties to siu-h intended marriage, pursuant to tlie second 
 section of the said last-nicntionod Act; and the superintendent 
 registrar to whom any such notice of marriage shall be so given 
 shall forthwith enter the particulars and the date thereof, and the 
 name of the party giving tho same, into the marriage notice book ; 
 and for every such entry tlio superintendent registrar shall l^e 
 entitled to liave a foe of one shilling.' 
 
 Sec. 4. ' In case any party shall intend marriage without license 
 under the provisions of any of the said recited Acts or of this Act, 
 the superintendent registrar to Avhom notice of such intended 
 marriage has been given shall cause the notice of marriage, or a 
 true and exact' copy thereof, as entered in the raaiTiage notice 
 l)ook, under tlie hand of such superintendent registrar, to be sus- 
 pended or affixed in some conspicuous place in the office of the 
 said superintendent registrar during twenty-one successive days 
 next after the day of the entry of such notice in his " Maniage 
 notice book," before any marriage shall be solemnized in pur- 
 suance of such notice, and after the expiration of twenty-one days 
 next after the day of the entry of such notice in his " Marriage 
 notice book," the superintendent registrar shall issue under his 
 hand, upon the request of the party giving such notice, a cer- 
 tificate in the form or to the etTect of the certificate set forth in 
 Schedule (B.) to this Act annexed, provided that in the meantime 
 no lawful impediment to the issuing of such certificate be shown 
 to the satisfaction of the same superintendent registrar, and pro- 
 vided the issue of such certificate shall not have been forbidden 
 in the manner provided by either of the said firstly and secondly 
 recited Acts by some person or persons authorized in that behalf; 
 and every such certificate shall state the particulars set forth in 
 the said notice, and the day on which the same notice Avas entered, 
 and that the issue of such certificate has not been forbidden by 
 any person or persons authorized in that. behalf; and for every 
 such certificate the superintendent registrar shall be entitled to 
 have and receive a fee of one shilling ; and at any time within 
 three calendar months next after the day of the entry of such 
 notice the intended marriage may be solemnized under the autho- 
 rity of the said certificate ; and every superintendent registrar's 
 certificate for marriage duly issued under the provisions of this 
 Act shall have the same force, validity, and effect as the like cer- 
 tificate issued under the provisions of the said recited Acts or 
 either of them would have had in case this Act had not been 
 passed.' 
 
 Sec. 5. 'In case any party shall intend marriage by license 
 under the provisions of any of the said recited Acts or of this 
 Act, notice of such intended marriage shall not be suspended in 
 the office of the superintendent registrar, but the party giving the 
 same shall state therein that such marriage is intended to be 
 celebrated by license.' 
 
 Sec. 6. ' In any case of marriage intended to be solemnized by 
 license, under the provisions of either of the said two firstly recited 
 Acts or of this Act, between parties both of whom do not dwell 
 in the same superintendent registrar's district, it shall not be 
 required that notice of such intended marriage shall be given to 
 more than one superintendent registrai', but a notice to the super-
 
 CHAP, v.] 
 
 Marriage Acts. 
 
 291 
 
 iutendent registrar of the district in which one of the parties so 
 intending marriage resides shall be sufficient ; and it shall not be 
 required that the said notice shall state how long each of the said 
 parties has resided in his or her dwelling-place, but only how long 
 the party residing in the district in which the notice is given has 
 so resided.' (c) 
 
 Sec. 9. ' Every superintendent registrar receiving notice of an 
 intended marriage to be solemnized by license as aforesaid shall, 
 after the expiration of one whole day next after the day of the 
 entry of such notice in his " Marriage notice book," issue under his 
 hand, upon the request of the party giving such notice, a certifi- 
 cate in the form or to the effect of the certificate set forth in the 
 said Schedule (B.) to this Act annexed, and also a license to marry, 
 provided that in the meantime no lawful impediment to the issuing 
 of such certificate be shown to the satisfaction of the same super- 
 intendent registrar, and provided the issue of such certificate shall 
 not have been forbidden in the manner provided by either of the 
 said firstly and secondly recited Acts by some person or persons 
 authorized in that behalf ; and every such certificate shall state the 
 particulars set forth in the said notice, and the day on which the 
 same notice was entei'ed, and that the issue of such certificate has 
 not been forbidden by any person or persons authorized in that 
 behalf; and for every such certificate the superintendent registrar 
 shall be entitled to have and receive a fee of one shilling ; and, 
 at any time within three calendar months next after the day of the 
 entry of such notice, the intended marriage may be solemnized 
 under the authority of the said license ; and every superintendent 
 registrar's certificate and license for marriage duly issued under 
 the provisions of this Act shall have the same force, validity, and 
 effect as the like certificate and license issued under the provi- 
 sions of the said recited Acts or either of them would have had in 
 case this Act had not been passed.' 
 
 Sec. 10. ' The form of a license for marriage so to be granted as 
 aforesaid to any jaarty or parties, by the superintendent registrar 
 of any district as aforesaid, shall be in the form or to the effect of 
 the license set forth in Schedule (C) to this Act annexed ; and for 
 every such license the superintendent registrar granting the same 
 shall be entitled to have and receive of the party requiring the 
 same the sum of one pound ten shillings, over and above the 
 amount paid for the stamps necessary on granting such license.' 
 
 Sec. 11. ' No such marriage as aforesaid shall be solemnized in 
 any such registered building witliout the consent of the minister 
 or of one of the trustees, owners, deacons, or managers thereof, 
 nor in any registered building of the Church of Rome without the 
 consent of the officiating minister thereof, nor in any church or 
 chapel of the united Church of England and Ireland witliout 
 the consent of the minister thereof, nor in such latter case ])y any 
 other than a duly (jualified clergyman of the said united church, 
 or with any other forms or ceremonies than those of the said 
 
 In cases of 
 marriage by 
 license certifi- 
 cate of the 
 notice thereof 
 may be given 
 by the super- 
 intendent re- 
 gistrar (unless 
 the marriage 
 be forbidden), 
 and tl)ereupon 
 the marriage 
 may be 
 solemnized. 
 
 Form of 
 license for 
 
 Rfode of 
 solemnizing 
 marriages iu 
 registered 
 buildings. 
 
 (c) By sec. 7, notice of marriage with- 
 out license may be given in Ireland if one 
 ol' the parties reside there, and marriages 
 where such notices have been given in 
 Ireland are legalised; and by sec. S, a 
 
 certificate of proclamation of l)anns in 
 Scotland as to a party resident there is 
 made equivalent to the superintendent 
 registrar's certificate. 
 
 u 2
 
 292 
 
 Persons de- 
 sirous niny add 
 the religious 
 ceremony or- 
 dained by the 
 church. 
 
 Of Byjaiitjj. 
 
 [book V. 
 
 Superinten- 
 dent registrar 
 to whom notice 
 is given, may 
 gi-ant license 
 for marriage 
 (under 3 & 4 
 Vict. c. 72) 
 in a district in 
 ■which neither 
 of the parties 
 resides. 
 
 Superinten- 
 dent registrar 
 may grant 
 license for 
 marriage to 
 be solemnized 
 in rccistered 
 building out of 
 the district 
 \vhercin the 
 paities reside. 
 
 uiiitcMl clnncli, ."viiy statute or statutes to the contrary notwith- 
 staiulin^'.' 
 
 Sec. 12. 'If the parties to any marriage contracted at the 
 registry office of any district conformal>ly to the said recited Acts 
 or any of them, or to the provisions of this Act, shall desire to add 
 tiic religious ceremony ordained or used hy the churcli or y^crsua- 
 sion of which such parties shall be members to the marriage so 
 contracted, it shall be competent for them to present thernselve.s 
 for that purpose to a clergyman or minister of the church or per- 
 suasion of which such parties shall be members, having given 
 notice to such clergyman or minister of their intention .so to do ; 
 and such clergyman or minister, upon the production of their cer- 
 tificate of marriage before the superintendent registrar, and upon 
 the payment of the customary fees (if any), may, if he shall see fit, 
 in the church or chapel whereof he is the regular minister, by him- 
 self or by some minister nominated by him, read or celebrate the 
 marriage service of the persuasion to which such minister shall 
 belong : Provided always, that no minister of religion who is not 
 in holy orders of the united Church of England and Ireland shall 
 under the provisions of this Act officiate in any church or chapel 
 of the united Church of England and Ireland ; but nothing in the 
 reading or celebration of such service shall be held to supersede or 
 invalidate any marriage so previously contracted, nor shall such 
 reading or celebration be entered as a mamage among the mar- 
 riages in the parish register : Provided also, that at no marriage 
 solemnized at the registry office of any district shall any religious 
 service be used at the registry office.' 
 
 Sec. 13. ' When any marriage is intended to be solemnized 
 between parties not of the Society of Friends commonly called 
 Quakers, or not professing the Jewish religion, by license under the 
 provisions of the before-recited Act of the third and fourth years of 
 her Majesty, chapter seventy-two, in a registered building situated 
 in a district within wliich neither of the parties resides, it shall be 
 lawful for the superintendent registrar to whom notice of such in- 
 tended marriage shall have been given to grant to the party appl}'- 
 ing for the same a license for such marriage to be solemnized in 
 the registered building stated in such notice ; and every license 
 and certificate granted in pursuance of this enactment shall be as 
 valid and effectual to all intents and purposes as if the same had 
 been granted by the superintendent registrar of the district in 
 which the registered building wherein the marriage is intended to 
 be solemnized is situated.' 
 
 Sec. 14. ' When any marriage is intended to be solemnized, 
 under the provisions of any of the before-recited Acts or of this 
 Act, in the usual place of worship of the parties so intending mar- 
 riage, or one of them, and such place of worship shall be a regis- 
 tered building situated out of the district of their, his, or her 
 residence, it shall be lawful for the superintendent registrar or 
 respective .superintendent registrars to whom notice of such marriage 
 shall have been given to grant to the party applying for the same 
 a license or certificate, as the case may be, for such marriage to be 
 solemnized in the registered building stated in such notice, pro- 
 vided such building be situated not more than two mile.^ beyond 
 the limits of the district in which the notice of such marriasje has
 
 CHAP, v.] 
 
 Marriage Actt\ 
 
 293 
 
 been given, and the party giving notice of such marriage shall at 
 the time of giving the same state therein, in addition to the 
 description of the building in which the marriage is to be solem- 
 nized, that it is the usual place of worship of one of the parlies, 
 and shall also state the name of the party whose usual place of 
 Avorship it is ; and every license and certificate granted in pursu- 
 ance of this enactment shall be as valid and eftectual, to all intents 
 and purposes, as if the same had been granted by the superinten- 
 dent registrar of the district in which the registered building 
 wherein the marriage is intended to be solemnized is situated.' (d) 
 
 Sec. 17. ' After any marriage shall have bee'n solemnized, under 
 the authority of any of the said recited Acts or of this Act, it shall 
 not be necessary in support of such marriage to give any proof of 
 the actual dwelling or of the jjeriod of dwelling of either of the 
 parties previous to the mai-riage within the district stated in any 
 notice of marriage to be that of his or her residence, or of the con- 
 sent to any marriage having been given by any person whose con- 
 sent tliereto is required by law, or that the registered building in 
 which any marriage may have been solemnized had been certified 
 according to law as a place of religious worship, or that such 
 building was the usual place of worship of either of the parties, 
 nor shall any evidence be given to prove the contrary in any suit 
 or legal proceedings touching the validity of such marriage ; and 
 all marriages which heretofore have been or which hereafter may 
 be had or solemnized, under the authority of any of the said recited 
 Acts or of this Act, in any building or phice of worship which has 
 been registered pursuant to the provisions of the said Act passed 
 in the sixth and seventh years of his late Majesty King William 
 the Fourth, chapter eighty-five, but which may not have been cer- 
 tified as required by law, shall bo as valid in all respects as if such 
 place of worship had been so certified.' (e) 
 
 Sec. 21. 'Any marriage according to the usages of the Society 
 of Friends commonly called Quakers, or to the usages of persons 
 professing the Jewish religion respectively, where the parties 
 thereto are both members of the said Society or both persons 
 professing the Jewish religion respectively, may be solemnized by 
 license (which license the superintendent registrar to whom notice 
 of the intended marriage shall have been given is hereby authorized 
 to grant, in the form or to the effect set forth in the said Schedule 
 (C.) to this Act annexed), as effectually in all respects as if such 
 marriage were solemnized after the issue of a certificate by such 
 superintendent registrar in the manner provided by the said recited 
 Acts or any of them ; and the provisions in this present Act con- 
 tained in relation to the solemn declaration to be made by the 
 party intending marriage, and to the statement to be contained in 
 
 Proof of the 
 observance of 
 this Act and 
 of the recited 
 Acts in certain 
 matters is not 
 to be necessary 
 to the validity 
 of marriages. 
 
 (d) ]5y see. 15, the n'f,'istrar gcncnil 
 may ajijioiiit rcgistrar-s of marriages ; and 
 tlip a])pi)in tiiiciits of rcgi.strars of marriages 
 by siipcrinti'iideiit registrars are to be sulj- 
 ject to his approval. By sec l(j, the re- 
 gistrar of marriages may apjioiiit a de- 
 puty, and wliere such registrar dies or 
 ceases to hold the ollicc, his deputy is to 
 be registrar until a new registrar is a]i- 
 pointed. 
 
 (c) By sec. 18, persons making false 
 
 Marriaftes of 
 Quakers or 
 Jews may be 
 solemnized by 
 license. 
 
 declarations, or giving false notices, or 
 forbidding the granting of a certiticato by 
 falsely re])resenting their consent to be 
 rc(iuir('d by law, arc liable to the ])onal- 
 tiis of ptijury. By sec. 19, in the ciise 
 uf fraudulent marriages, the guilty ]'arty 
 is to forfeit all the property accruing from 
 the marriage. By sec. 20, uotliingin the 
 Alt is to alter the provisions of the exist- 
 ing Acts, except when they arc at variance 
 with this Act.
 
 '2'J[ 
 
 Of Bu/(Utii/. 
 
 liOOK V. 
 
 Mnrringcs 
 under tliis Act 
 good and 
 cognizable. 
 
 Extra-iiaro- 
 chial X)hices. 
 
 A marriage is 
 good by banns 
 or license 
 where the 
 ]iarty is mar- 
 ried in an 
 assumed name, 
 if he be known 
 in the place 
 where he is 
 married by 
 such assumed 
 name. 
 
 tlic notico of siicli intended marriage that .such marriage i.s intended 
 to be celebrated by license, and to the notice to be given of any 
 such intended marriage by licen.se, and to the giving of certificates 
 in the form or to the effect set forth in Schedule (B.) to this Act 
 annexed, and to the fee and stamp to }>e paid for such license, 
 shall b(! :ipplical)lc in all respects to every such marriage to be 
 solemnized by license according to the u.sages of the said Society 
 or to the usages of persons professing the Jewish religion respec- 
 lively.' (/) . 
 
 Sec. 23. ' Every marriage solemnized under any of the said re- 
 cited Acts or of this Act shall be good and cognizable in like manner 
 as marriages before the passing of the first-recited Act according to 
 the rights of the Church of England.' (g) 
 
 The 20 Vict. c. IJ), provides for the turning of certain extra- 
 parochial places into pari.shes, and where any such place has a church 
 or chapel of the Church of England within it, the bishop of the 
 diocese may authorize the publication of banns and the solemniza- 
 tion of marriages by banns or license in it. (/<) And all the provi- 
 sions as to keeping of marriage registers are extended to such 
 church or chapel, (i) 
 
 The 23 & 24 Vict. c. 24, renders marriages celebrated in any such 
 church or chapel valid where both or either of the parties reside in 
 such district, provided the banns are publi-shed in both districts 
 where the parties reside in different districts. 
 
 The marriage Acts do not specify what shall be necessary to be 
 observed in the publication of banns, or that the banns shall be 
 published in the true names of the parties; but it must be under- 
 stood as the clear intention of the legislature that the banns shall 
 be published in the true names, because it requires that notice in 
 writing shall be delivered to the minister of the true Christian 
 names and surnames of the parties seven days before the publica- 
 tion ; and, unless such notice be given, he is not obliged to pub- 
 lish the banns. But a publication in the name which the party 
 has assumed, and by which he is known in the parish, appears to 
 be sufficient, and would, indeed, be the proper publication where 
 the party is not known by his real name. Thus, where a person, 
 whose baptismal and surname was Abraham Langley, was mamed 
 by banns by the name of George Smith, having been known in the 
 parish where he resided and was married by that name only from 
 his first coming into the parish till his marriage, which was about 
 three years, the marriage was held valid, (j) And a marriage by 
 license, not in the part3^'s real name, but in the name which he 
 had assumed, because he had deserted, he being known by that 
 name onl}'- in the place where he lodged and was married, and 
 where he had resided sixteen weeks, was also held valid. Lord 
 Ellenborough, C. J., said, ' If this name had been assumed for the 
 purpose of fraud in order to enable the party to contract marriage, 
 and to conceal himself from the party to whom he was about to be 
 
 (/" ) By sec. 22, the rei^strar general 
 is to furnish marriage register books and 
 forms to each certified secretary of a syn:v- 
 goguo of British Jews. 
 
 ((f) Sec. 24 recites the 15 & 16 Vict. 
 c. 36, and enacts that the registrar gene- 
 i-al shall allow searches, and give ex- 
 
 tracts from the returas of certified places 
 of ^^orship. By sec. 25, the Act does 
 not extend to Scotland or Ireland. 
 ' (A) Sec. 9. 
 
 (0 Sec. 10. 
 
 (/) Kex V. Billingliurst, 3 ^L & S. 
 250.
 
 CHAP, v.] Construction of Marriage Acts. 
 
 married, that would have been a fraud on tlie marriage Act and 
 the rights of marriage, and the Court Avould not have given effect 
 to any such corrupt purpose. But where a name has been previ- 
 ously assumed, so as to have become the name which the party has 
 acquired by reputation, that is, within the meaning of the marriage 
 Act, the party's true name.' (Ic) 
 
 Under the 26 Geo. 2, c. 83, if there was a total variation of a 
 name or names, that is, if the banns wore published in a name or 
 names totally different from those which the parties, or one of 
 them, ever used, or by which they were ever known, the marriage 
 in pursuance of that publication was invalid ; and it was immate- 
 rial in such cases, whether the misdescription had arisen from 
 accident or design, or whether such design was fraudulent or not. 
 The pauper and her husband were married in 1817, by banns, by the 
 names of Mary White and Joseph Betts. The husband had been 
 baptized as the son of J. and M. Betts. M. Betts was the daughter 
 of S. Wilson, and her husband having absconded shortly after their 
 marriage, the pauper's husband was brought up by S. Wilson, and 
 always called by the name of Wilson, and never called or known 
 by any other name either before or after his marriage. The pauper 
 was the daughter of J. and M. Hodgkinson, and was never called 
 or known by any name except Hodgkinson till after her marriage, 
 but in the register of her baptism she was described as ' Mary the 
 daughter of S. White and his wife,' which entry was believed to 
 have been a mistake of the clergyman who baptized her. It was 
 held that the marriage was void. Whether the husband was suffi- 
 ciently designated by the name of Betts it was unnecessary to 
 inquire, as the Court were clearly of opinion that the woman was 
 never known by, and never used the surname of ' White,' so as to 
 make that, in any latitude of construction, ' a true name ' within 
 the meaning of the 26 Geo. 2, c. 33, s. 2. {I) 
 
 But under the 26 Geo. 2, c. 33, if there were a partial variation 
 of name only, as the alteration of a letter or letters, or the addition 
 or suppression of one Christian name, or the names had been such 
 as the parties had used, and been known by, at one time, and not 
 at another; in such cases the publication miglit, or might not be 
 void ; the supposed misdescription might be explained, and it 
 became a most important part of the inquiry, whether it was 
 consistent with honesty of purpose, or arose from a fraudulent in- 
 tention, [rn) 
 
 But the words of the 4 Geo. 4, c. 76, s. 22, arc wholly d liferent 
 from those of the 26 Geo. 2, c. 33, s. 8, and it has been held tliat in 
 order to invalidate a marriage under the 4 Geo. 4, c. 76, s. 22, it 
 must be contracted with a knowledge by both parties that no due 
 publication of the banns has taken place. Where, therefore, J, C. 
 told Susannah Spencer that he woidd sec the banns properly pub- 
 lished, and she took no stops in the matter, and ho told her that 
 they had been published, but procured the banns to be published 
 in the name of Agnes Watts, which name she had never borne ; 
 
 295 
 
 Banns pub- 
 lished in en- 
 tirely wrong 
 name, under 
 26 Geo. 2, 
 c. 33. 
 
 Partial varia- 
 tion in the 
 name. 
 
 Under the 
 4 Cico. 4, 
 p. 7(>, I'oth 
 jiarties must 
 know that 
 tlicrc has been 
 no due inibli- 
 cation of 
 banns. 
 
 {k) Rex V. Burton-upon-Trent, 3 M. & 
 S. 537. 
 
 {I) Wcx V. Tibsholf, 1 B. & Ad. 190. 
 
 (m) I'er Lord Tentenlen, C. J. Ibid. 
 See Sullivan v. SulUvau, 2 Hagg. C. R. 
 
 2.'')4 ; Franklaiul r. Nicholson, 3 M. & S. 
 2(J1, 1 Phil. P. 147 ; PouKctt v. Tom- 
 kins, 3 M. & S. 2()3 ; Mathor r. Noy, 3 
 M. & S. 2G5.
 
 296 
 
 Of Birjami/. 
 
 [book 
 
 V. 
 
 Omission of 
 onu Cliristian 
 naino and false 
 ndilitioii, 
 kno>vn by 
 both iiartics. 
 
 Wrong Chris- 
 tian name 
 used by the 
 man witli con- 
 eeut of the 
 woman. 
 
 Assuming a 
 fictitious name 
 
 find in poifonnint^ iho. service!, tiic clorf,'yinan api)lic(l to licr tliu 
 name of A^ncs, till \vlii(.'li lime slio l)('licv<.'(l hIio was about to be 
 niairiid by her ow ii n;iiii<', ainl slie did not know, until after tlie 
 n»airia,<fe, that the banns liad been |)ul>lislied in a wron^ name ; it 
 was hold tiiat the marriage was valid. (7?) ]3ut where both the 
 man and the woman were aware that the banns had been j>ul)lishcd 
 in a manner to conceal the identit^'of one of them, it was held that 
 the maiTiai:^e was void. (0) 
 
 Edward Croxall Tongue, a minor, of the ago of seventeen years, 
 and Mary Ann Allen, a widow, of the age of thirty-five years, were 
 married in 1833 by banns, which were published in the names of 
 Edward Tongue, bachelor, and Mary Ann Allen, spinster; the entry 
 in the register was in the same names and descriptions, and was 
 signed Edward Tongue. 'J'he marriage was clandestine and without 
 the know ledge or consent of the parents of Tongue, who was bap- 
 tized by the names of Edward Croxall Tongue, and though known 
 to some persons by the name of Croxall Tongue or Tongue only, 
 was never known by the name of Edward Tongue. It was ad- 
 mitted that the w^oman was cognizant of the fraud and intended it; 
 and it was held that as the entr}^ in the register was, Edward 
 Tongue and Mary Ann Allen were married by banns, it was impos- 
 sible for him not to have known of the publication of the banns ; 
 and the signature of only one of his Christian names showed that 
 he must have known that the banns had been published in that 
 name only ; and, therefore, he, with the woman, knowingly and wil- 
 fully intermarried without due publication of banns, {p) 
 
 One Wood was baptized and had always been known by the 
 name of Bower Wood, and never by the name of John Wood, and 
 his banns were published in the names of Margaret Midgley and 
 John Wood ; after the first publication the wife told Wood that 
 the name John Wood was wrong. He said it was one of his names, 
 though he had never been called by it ; she asked him why he 
 used the name John ? He said it was for fear any of his relations 
 should know of his marrying her. She wished him to use the 
 name of Bower ; he said he should be disinherited if he did ; she 
 asked him if the marriage would be legal under the name of John ; 
 he said it would. It was a long time before she would consent to 
 being married to him in the name of John. She did so because he 
 said if she loved him slie would marry him in that name, and 
 Avould trust to him afterwards. On the 1:2th of April, 1852, they 
 were married in the names of Margaret Midgley and John Wood. 
 Cresswell, J. O., held that there was not a due publication of banns, 
 as Wood was described in them as John Wood, and both parties 
 were aware of this misdescription when the marriage was solem- 
 nized, and therefore the marriage w^as invalid, (q) 
 
 It seems that the assuming a fictitious name, upon the second 
 
 in) Kcx V. Wroxton, 4 B. & Ad. 640, 
 1 N. & M. 712 ; Goinpcrtz v. Kensit, 41 
 L. .1. Cli. 382. 
 
 (0) "Wiltshire ;•. Wiltshire, 3 Hagir. 
 Ecc. R. 332. 
 
 ( p) Tongue v. Tongue, 1 Moore, V. C. 
 00. There was also evidence that it was 
 the regular course to make the parties 
 examine the entry in the banns book be- 
 
 fore a marriage, and see that their names 
 and descriptions were right, and the wit- 
 ness added that she should not have been 
 present at the marriage as a witness, 
 unless the banns had been regularly 
 published. 
 
 ('/) Midgley v. Wood, 30 Law J., D. 
 & M. 57.
 
 CHAP, v.] Marriage in Wrong Name. 297 
 
 marriage, will not prevent the offence from being complete, (r) on the second 
 And it was decided to be no ground of defence, that upon the marriage, 
 second marriage (which was by banns) the parties passed by false 
 Christian names when the banns were published, and when the 
 marriage took place ; and it was further holden that the prisoner, 
 having written down the names for the publication of the banns, 
 was precluded thereby from saying that the woman was not 
 known by the name he delivered in, and that she was not rightly 
 described by that name in the indictment. The indictment was 
 against the prisoner for marrying Anna Timson whilst he had a 
 wife living : the second marriage was by banns ; and, it appeared, 
 that the prisoner wrote the note for the publication of the banns, 
 in which the woman was called Anna, and that she was married 
 by that name, but that her real name was Susannah. Upon a 
 case reserved two questions were made : one, whether this mar- 
 riage was not void, because there was no publication of banns by 
 the woman's right name, and that, if the second marriage were 
 void, it created no offence : and the other question was, whether 
 the charge of the prisoner's marrying Anna was proved. But the 
 judges held, unanimously, that the second marriage was sufficient 
 to constitute the offence ; and that, after having called the woman 
 ' Anna ' in the note he gave in for the publication of banns, it did 
 not lie in the prisoner's mouth to say, that she was not known as 
 well by the name of Anna as by that of Susannah, or that she was 
 not rightly called by the name of Anna in the indictment. («) 
 
 So where the prisoner contracted the second marriage in the 
 maiden name of his mother, and the woman he married had also 
 made use of her mother's maiden name, it was unanimously resolved 
 by all the judges that the prisoner was rightly convicted, if) So 
 where the second wife had never gone or been known by the 
 name of Tliick, but had assumed it when the banns were pub- 
 lished, that her neighbours might not know she was the person 
 intended, it was held tiiat the parties could not be allowed to 
 evade the punishment for their offence, by contracting a con- 
 certedlj' invalid marriage, (k) But where it was proved, by a 
 person present at the prisoner's second marriage, that the woman 
 was married to him by the name of Hannah Wilkinson (the name 
 laid in the indictment), but there was no other proof that the 
 woman Avas in fact Hannah Wilkinson ; it was held that the 
 proof was insufficient, and that to make it sufficient there should 
 have been proof that the prisoner was married to a certain woman 
 by the name of, and who called herself H. Wilkinson, whereas, 
 in fact, there was no proof that such was her name, or that she 
 had ever before gone by tliat name ; and if the banns had been 
 published in a name wliich was nut her own, and which she had 
 never gone by, the marriage would be invalid, (r) 
 
 The prisoner was married a second time before the registrar l^t.irriage 
 describing himself as Beniamin Rea, his true name being Edward |*cfore a regis- 
 
 (r) Rexj;. Allison, post, p. 314. And 117. Rose. C, E. 280. 
 
 see 11. V. Allen, ante, p. 2<i8, .mikI tlic (u) Ilex r. Penson, f) ('. .V P. (I'J. 
 
 question as to the second n]arriM;.,'(; there fiuriiey, !>. Hce Kcf,'. v. Orj^ill, i» ('. it 
 
 discussed. P. ,Si>. 
 
 (.v) Rex V. Edwards, MS. I'.ayloy, J., (r) Drake's case, 1 Lcwin, 25. Parke, 
 
 and K. & R. 283. J. No jioint was suf^gested as to this 
 
 (0 Palnier's case, 1 Diac. Pii,'. Cr. L. being the .second marriage. 
 
 wron" name.
 
 298 
 
 Of Bigamy. 
 
 [book v. 
 
 Marriage liy 
 liceiiso ill a 
 wroii" name. 
 
 Evidence of a 
 man-iage by 
 special liceuse. 
 
 Rca. Tlierc was no evidence to show the wife knew of this, and 
 the man was held to be riglitly convicted of bigamy, as tlie effect 
 of the statute (j & 7 Will. 4, c. 85, ss. 4, 42, is to render invalid a 
 niMrriago wlictre ))<)th the parties, ami not one only, knowingly 
 intermarry without due notice, {lu) 
 
 A mariiage celebrated under a license, in which one of the 
 parties is described by a name wholly different from his own, is 
 not therefore void. George Rudman was taken into custody as 
 tlie reputed father of a child, of which a woman was pregnant, 
 and married her by license. He gave his name as George Neate 
 at the times of the apprehension and marriage, and was named so 
 in the license, but had never gone by that name before ; and the 
 Court of Queen's Bench held tliis marriage valid, (x) 
 
 Where a marriage was solemnized by license, in which the 
 woman's name was Margaret Bevan ; her baptismal name and that 
 by which she was commonly called being ' Margaret Lea Bevan ' : 
 the license was obtained in the altered name by tlie man, who 
 knowingly, and by direction of the woman, suppressed the name 
 of ' Lea,' and gave false places of residence, in order that the 
 surrogate might not know who the woman was, and that the 
 intended marriage might be kept secret from her friends ; it was 
 held that the question was whether the woman was married 
 without a 'license from a person or persons having authority to 
 grant the same.' There was no doubt the person who granted 
 the license had authority to grant it, and it came therefore to the 
 question whether this was a license for the woman. It was clear 
 that an altered name might represent a person ; therefore the 
 name ' Margaret Bevan ' might represent her, and as the license 
 was obtained for her and by her direction from a person who had 
 authority to gi-ant it, the marriage was not void, (y) 
 
 On the trial of an "ejectment in 1842, a marriage was said to 
 have taken place in August in 1784, at a private house under a 
 special license from the Archbishop |of Canterbury. There was 
 some evidence of cohabitation and reception : but the plaintiff's 
 counsel offered in evidence an affidavit made for the purpose of 
 obtaining a special license to be married at a private house, and 
 a fiat signed by the Archbishop, directing a license to be made 
 out, as prayed, for a marriage between the parties ; both which 
 documents were produced from the Office of Faculties, the proper 
 ecclesiastical office. No search had been made for the original 
 license ; and there was proof that such licenses were not kept in 
 any regular custody, but were generally handed over to the 
 officiating clergyman and not taken back from him. A copy of 
 the register of the parish of St. Pancra.s, Avhich stated the mamage 
 to have been at a private house, by special license, and professed 
 to be signed by the parties, was also offered in evidence. Objec- 
 tion was taken to the fiat as being secondary evidence of the 
 contents of the license, for which no search had been made ; but 
 
 (ir) R. r. Eca, L. K. 1 C. C. E., 41 
 L. J. U. C. 9-2. The Court did not say 
 there wouhl have licen no oflenoe if both 
 parties had known of the false state- 
 ment. See Holmes v. Simmons, L. K. 
 1 P. & M. 523. 
 
 (.r) Laner. Goodwin, 4 Q. B. 361. But 
 
 if a license were obtained for one person 
 with the intention that it should be used 
 for another, such a license might not be 
 valid. Patteson, J. Ibid. 
 
 iy) Bevan r. M'Mahon, 30 Law J., 
 D. & M. 61.
 
 CHAP, v.] 
 
 Marriage hy Minor. 
 
 299 
 
 the evidence was admitted ; and the Court of Queen's Bench 
 held that it was properly received, as the fiat was an act clone in 
 the course of official duty, showing that two persons bearing the 
 names of the lessor of the plaintiff's parents were at that time 
 engaged in taking measures for contracting a marriage ; and that 
 it might properly be taken into consideration by the jury as con- 
 firming the evidence of their union, which arose from cohabitation 
 and reception. The affidavit and register were proofs of the same 
 general fact, {z) 
 
 A marriage solemnized by license since the 4 Geo. 4, c. 70, 
 without consent of parents, where one of the parties is a minor, is 
 valid : for the section, which requires such consent, is only direc- 
 tory. The pauper, being under the age of twenty-one years, was 
 married in 1826, by license, without the consent of his father, who 
 was then living ; it was objected that this marriage was void under 
 the 4 Geo. 4, c. 76, for want of the father's consent ; but it was 
 held that the marriage was valid. The language of sec. 16 ih) is 
 merely to require consent ; it does not proceed to make the mar- 
 riage void, if solemnized without consent. Sec. 22 declares that 
 certain marriages shall be null and void, and a marriage by license 
 without consent is not specified ; and if there were any doubt, it 
 is removed by sec. 23, which in such a case enacts, not that the 
 marriage shall be void, but that all the property accruing from the 
 marriage shall be forfeited, (e) 
 
 Unless a clergyman in holy orders was present at the marriage 
 ceremony, the marriage was null and void at common law before 
 the marriage Act. Where, therefore, A., a member of the estab- 
 lished Churcli in Ireland, went, in 1829, accompanied by B., a 
 Presbyterian, to the house of C, a regularly placed minister of the 
 Presbyterians of the parish where 0. resided, and there entered 
 into a present contract of marriage with the said B., the minister 
 performing a religious ceremony between them, according to the 
 rites of the Presbyterian church, and A. and B. lived together as 
 man and wife for some time afterwards ; but A., afterwards during 
 B.'s life, married another person in a parish church in England ; it 
 was held, on an indictment for bigamy, that the first contract thus 
 entered into was not sufficient to support the indictment. ((/) 
 
 Since the 
 4 Geo. 4, 
 c. 76, a mar- 
 riage by a 
 minor with- 
 out consent is 
 valid, (a) 
 
 A clergyman 
 in holy orders 
 must be pre- 
 sent by the 
 common law. 
 
 (;) Doc dem. Earl of Egremont, v. 
 Gra/.fljrook, 4 Q. B. 406. In the argu- 
 ment it is said that ' the performance of 
 a ceremony was proved ; ' ' but the cere- 
 mony was shown to have been performed 
 in a private house. ' ' The same parties 
 went through the ceremony, which, at 
 any rate, was professedly a marriage.' 
 See Doe dinn. France v. Andrews, 15 
 Q. B. 756, as to the entry in the re- 
 gister. 
 
 (a) If the prisoner prove that his first 
 marriage took place while ho was a minor, 
 and while the 26 Geo. 2, c. 33, was in 
 force, it must be .shown on the jiart of 
 the prosecution, that such marriage, if 
 bv license, was witli the proper consent. 
 Ri'x V. Butler, Mich. T. 1803. MS. 
 Bayley, J., and R. & 1\. 01 ; Kex v. 
 Morton, cor. Wilson, J,, Newcastle, 1789. 
 MS. Bayley, J., and I?. & K. 19, note 
 
 (a). James's case, R. & R. 17. Though 
 illegitimate children are regarded by the 
 law as not having any father, yet they 
 were held to be within the marriage Act 
 of 26 Geo. 2 ; Rex v. Hodnett, 1 T. R, 
 96 ; Rex v. Edmonton, C'ald. 435 ; Hor- 
 ner ?'. Liddiard, Rep. by Dr. Croke ; 
 Priestley v. Hughes, ll Hast, 1. 
 
 (h) .See the sec. an/c, ]>. 276. 
 
 {c) Kex V. Birmingham, 8 B. & C. 29, 
 S. C. 2 M. & R. 230. Reg. v. Clark, 2 
 Cox, C. C. 183. 
 
 {d) Reg. V. Millis, 10 CI. & F. 534. 
 March 1843. In the Queen's Bench in 
 Ii-eland, Perrin and Cramjiton, .1.1. , lield 
 the tirst marriage good : but IVnnefathcr, 
 C. J., and Burton, J., held it to be void. 
 In order tliat error might be brought in 
 the House of Lords, Perrin, J., withdrew 
 his ojnnion, and judgment was given for 
 the prisoner. In the House of Lords,
 
 300 
 
 UiilcsH one 
 ciiiiiiot 1)C pro- 
 ciirt'il. 
 
 A flcrgyiiiMii 
 caiiiidt, iii.iny 
 
 llilllSl'lt'. 
 
 In siipiwrt of 
 ii iimiii;i','e 
 under tlio 
 6 & 7 Will. 4, 
 c. Sf), it is not 
 iicccss-ary to 
 produce or 
 l)rove the no- 
 tice of uiar- 
 riiigc, or to 
 prove that it 
 took place in 
 the building 
 specified in 
 the notice. 
 
 Of Bigamy. 
 
 [book v. 
 
 Proof of a 
 marriage under 
 the 6 .t 7 
 Will. 4, c. 85. 
 
 IJiit I lie preceding case must not be taken to decitlc tliat niar- 
 ii;ii;c.s of Jiiilisli subjects in tlic colonies, or on board ship <»r 
 clscwlicre, where a clerjifyman cannot be obtained, are invabd. 
 Iii(K'ed in a case in Iiuba when; no cler^'yii'^" could be obtaiiK.-d, 
 it was held that the i)rccedingdecisi(jn did not apply, (e) 
 
 'The law does not admit of any difference, as to the manner in 
 which a marriafje is to be celebrated, between the marriajje of a 
 clergyman and a layman, and consequently if the bridegroom be 
 a clergyman in holy orders, and perform the ceremony himself, no 
 other clergyman l)eing present, the mari'iage is invalid. (/) 
 
 Where, on an indictment for bigamy, it appeared tliat the first 
 marriage professed to be under tiie provisions of the G & 7 Will. 4, 
 c. iS5, and the superintendent registrar produced the register 
 returned to him by the registrar, who proved that he was pre.sent 
 at the mamage, that it was registered, that the parties signed their 
 names, and he witnessed it ; and the superintendent registrar pro- 
 duced the register of the place where the marriage was celebrated, 
 and the certificate he issued was produced and proved by him. A 
 witness stated that he was i)resent at the marriage, and that notice 
 of it was duly given to the superintendent registrar, but the latter 
 did not produce it, and said, if he bad received it, he had left it 
 at home ; it was contended, on behalf of the prisoner, that it was 
 incumbent on the prosecution to show that the first marriage was 
 celebrated in the registererl building specified in the notice and 
 certificate, to prove that due notice had been given to the super- 
 intendent registrar, and that the certificate of the notice had been 
 duly issued. But, on a case reserved, all the judges present held 
 the evidence sutficient. (_r/) 
 
 Upon an indictment for bigamy, which alleged that the pri- 
 soner, in July 1848, married Eliza Goodman in a Wesleyan chapel 
 duly licensed for marriages, and afterwards and in her lifetime 
 married E. Outley, a witness proved that he was present at the 
 first marriage at the Wesleyan chapel at Dunstable, in the pre- 
 sence of the registrar, and signed the register as a witness, and 
 that the parties lived together as man and wife for two or three 
 years. A witness proved that a certificate of this marriage was 
 examined by him with the register book, kept at the office of 
 the superintendent registrar of the district of Luton, within which 
 Dunstable was, and tliat it was correct, and that it was signed 
 
 Lords Brougham, Denman, and Camp- 
 liell held the first marriage good ; but 
 tlie Lord Chancellor (Lyndhurst), Lord 
 C'ottenliani, and Lonl Abinger held it 
 void ; wlicreu]>on, according to the an- 
 cient rule in the law, sanpo' prccsumifur 
 pro nfrjante, judgment was given for the 
 defendant ; and in Beamish v. Beamish, 
 infra, it was held that this judgment was 
 as much binding as if it had been ])ro- 
 iiouneed ncmine disscnticntc. On the 
 authority of this case, it was held that a 
 marriage solemnized at the consulate 
 (ifhce at Beyrout in Syria, according to 
 tlie rites of the Church of England, be- 
 tween two British subjects who were 
 members of that church, by an American 
 missionary, who was not a priest in lioly 
 orders, was void. Catlicrwood v. Caslon, 
 
 13 M. & W. 26L 1844. See the 12 & 13 
 Vict. c. 68, post, p. 311. See K. v. 
 Mainwaring, 26 L. J. M. C. 10 ; Dear & 
 B. 132. 
 
 {c) Maclean r. Cristall, Per. Oriental 
 Cas. 75. And the Lords, in Beamish r. 
 Beamish, infra, expressly declared that 
 this question was not decided by the pre- 
 ceding case. 
 
 (/) Beamish v. Beamish, 9 H. L. C. 
 274. 
 
 ig) Keg. V. Hawes, 1 Den. C. C. 270. 
 As the jiroduction of the original register 
 of marriages cannot be enforced, a wit- 
 ness, wlio has seen the register, may 
 prove the handwriting of a i)arty to 
 a marriage therein registered, although 
 such register be not produced. Sayer v. 
 Glossop, 2 Exc. H. 409.
 
 CHAP, v.] 
 
 Proof of Marriage. 
 
 301 
 
 by the superintendent registrar. This certificate contained a 
 copy of the register, which the registrar certified to be correct. 
 The witness also proved that he examined anotlier certificate 
 with the register book at the office of the supei'intendent registrar, 
 and that it was correctly extracted, and was signed by the super- 
 intendent registrar in his presence, {h) The witness also proved 
 that another document was signed in his presence by the super- 
 intendent registrar, and that he examined it with the register 
 at his office, and found it was correctly extracted, (i) The 
 reception of these documents was objected to, on the ground 
 that certificates were not admissible to prove a marriage in a 
 Wesleyan chapel, or that it was a place in which a marriage could 
 be legally solemnized, or that, if admissible, they must be authen- 
 ticated by the official seal of the registrar, and not under hand 
 only. But the documents were admitted, and the prisoner con- 
 victed ; and it was held that the conviction was right, upon the 
 ground that, independently of the two last-mentioned documents, 
 there was 2wir)id facie evidence that the chapel was duly regis- 
 tered, and was therefore a place in which marriages might be 
 legally solemnized. The presence of the registrar at the mar- 
 riage, the fact of the ceremony taking place, and the entry in the 
 registrar's book, aided, as they were, by the presumption omnia 
 rith esse acta, afforded privid facie evidence that the chapel was a 
 duly registered place, in which marriages might be legally cele- 
 brated, (y) So where on an indictment for bigamy the prisoner 
 was shown to have been secondly married at a Wesleyan chapel 
 not registered under the 15 & IG Vict. c. 30, in June 18.j7, and 
 
 (h) This certificate was, ' I, the iinJer- 
 signcd, T. E. Austin, Rupcriutciident 
 Registrar of tlic district of Luton, &c., do 
 hereliy certify that the Wesleyan chapel, 
 situate at Dunstable, in tlic county of 
 Bedford, was duly registered for the 
 sol(!mnization of marriages, pursuant to 
 the Act 6 & 7 Will. 4, c. 85, on the 
 twenty-eighth day of November, 1845. 
 Given under my hand, &c., Thos. Erskine 
 Austin.' 
 
 (i) This document was, ' Henry Man- 
 waring and Eliza Goodman were married 
 after notice, read at the I'oard of Guar- 
 dians of the Luton Union, witliout 
 license. Thos. Erskine Austin, Superin- 
 tendent Itegistrar.' 
 
 U) Heg. V. Manwaring, D. & B. C. C. 
 1.32; Pollock, C. B. and Willes, J., 
 thought that the certificate that the 
 chaiiel had been duly registered was ad- 
 missible and evidence of the fact. The 
 6 & 7 Will. 4, cc. 85, 86 ; 1 Vict. c. 22 ; 
 3 & 4 Vict. c. 92 ; 8 & 9 Vict. c. 113 ; 
 9 & 10 Vict. c. 119 ; ami 14 & 15 Vict. 
 c. 99, were referred to on the trial. 
 Willes, J., said, ' It is a mi.stake to sup- 
 pose that the }>rovisions of tlie 14 & 15 
 Vict. c. 99, s. 14, are anything more than 
 cumulative, or that they give a rule and 
 th(^ only rule of evidence.' See K. r. 
 (h-addock, 3 E. & V. 8:57. Where in an 
 action for goods sold there was a plea of 
 coverture, and the defemlant stated tluit 
 she was married to J. Lambert iu 1844, 
 
 at a I'lOman Gatholic clKqud in George 
 Street, Portmau S([uai'e ; that she and 
 Lambert were both iionian Catholics, and 
 Avere married by a juiest in the way iu 
 which Roman Oatliolic marriages arc 
 ordinarily celebrated, and that they lived 
 together for some years, and she pro- 
 duced a certificate of the marriage from 
 the priest who performed the ceremony, 
 and a certificate .showing that the civil 
 contract of uiarri;ige luul been iierformed 
 before the Erench Consul ; but there was 
 no proof that the person who performed 
 the ceremony was a priest, or that the 
 chapel was a place licensed for mar- 
 riages, or that the registrar was piesent 
 at the time ; the Court of Con)mon Pleas 
 held that it might be incsununl that the 
 chapel was licensed and the registrar pre- 
 sent, as well because the G & 7 Will. 4, 
 c. 85, s. 39, declares, any person who 
 wilfully solemnizes a marriage in any 
 other ])lac(^ than a legistered building 
 or in the absence of the registrar, guilty 
 of felony, as because the ordinary rule 
 omnia pncsKmnnlitr rili esse uc/«. ougb.t 
 to ])revail in such a case. Sichel v. Lam- 
 bert, 15 C. B. (N. S.) 781. Where a 
 marriage was .solemnized in a building in 
 a jiarish situate a few yards from the 
 parish ciiurch, at a time when the parish 
 church was disused in (.•ons('(|uence of its 
 undergoing repaiis, and after divine scr- 
 vic(^ had been several times jierlormed in 
 such building, in the absence of any
 
 Geo. 2, c, 33. 
 
 302 Of Bvjamy. [book v. 
 
 tliis marriajijo was proved Ly the registrar, who produced tlie ccr- 
 (ilie.ite; it was objected that then; was no proof of the s(;cond 
 iiiarria<'^(S or that it was invalid, having taken phice in an unli- 
 censed chapel ; but Wighttnan, J., overruled the objections, (k) 
 Marriages A marriage celebrated by banns, in a chapel erected after the 
 
 ccleinatcd in o(; q^.q 2, c. .*33, was passed, and not upon the site of any ancient 
 cjuuclios and church or chapel, was held to be void, although marriages had been 
 
 cli!ii>els cructcil , , ' . ' ' , , , , , i , i i r . i . i . < ■ 
 
 Hinco the mar- df /(/tVo heiiucntly celel)riited thcrc ; tlie words ot tlie statute in 
 liagcAct, 2G which chapel banns have been usually published' being ludd 
 clearly to mean chapels existing at the time it was passed. (I) 
 But as soon as this determination was known, the 21 Geo, 3, c. 53, 
 was 'passed, making valid all marriages which had been celebrated 
 in any parish church or public chapel, erected since the passing of 
 the 2() Geo. 2, c. 33, and consecrated, and providing that the regis- 
 ters of such marriages should be received as evidence. The fourth 
 section enacted, that the registers of marriages thereby made valid 
 should, within twenty days after the 1st of August, 1781, be 
 removed to the church of the parish in which such chapel should 
 be situated ; or, if it should be situated in an extra-parochial place, 
 to the parish church next adjoining, to be kept with the registers 
 of such parish. These provisions were extended Ijy the 44 Geo. 3, 
 c. 77, and the 48 Geo. 3, c. 127, to marriages celebrated in such 
 chapels before the 23rd August, 1808 ; and the registers of such 
 marriages are in like manner to be removed to parish churches, 
 and transmitted to the bishop. The 6 Geo. 4, c. 92, recites, that 
 since the 26 Geo. 2, c. 33, and the 44 Geo. 3, c. 77, divers churches 
 and chapels had been erected in England, Wales, and Berwick- 
 upon-Tweed, which had been duly consecrated, and divers mar- 
 riages had been solemnized therein since the passing of the 
 44 Geo. 3, c. 77 ; but by reason that in such churches and chapels 
 banns of matrimony had not usually been published, before or at 
 the time of passing the 26 Geo. 2, c. 33, nor any authority obtained 
 for solemnizing marriages therein, under the provisions of the 
 4 Geo. 4, c. 70, such marriages had been or might be deemed to be 
 void ; and then enacts, that all marriages already solemnized in 
 any church or public chapel in England, "Wales, and Berwick- 
 upon-Tweed, erected since the 26 Geo. 2, c. 33, and consecrated, 
 shall be as good and valid in law as if such marriages had been 
 solemnized in parish churches or public chapels, having chapelries 
 annexed, and wherein banns had usually been published before or 
 at the time of passing the 26 Geo. 2. By sec. 2, it shall be lawful 
 for marriages to be in future solemnized in all churches and 
 chapels erected since the 26 Geo. 2, c. 33, and consecrated, ' in 
 wdiich churches and chapels it has been customary and usual, 
 
 proof that the Iniihliiig was licensed b}' forming the service was not guilty of the 
 
 the bishop, it was presumed in favour of grave oflence of marrying persons in an 
 
 the marriage, to have been duly licensed. imlicensed place. The facts of the mar- 
 
 R. V. Cresswell, 45 L. J. M. C. 77 ; 13 Cox, riage and other church services being 
 
 C. C. 126, ct per Lord Coleridge, C. J. performed there by a clergyman are 
 
 "We are of ophiion that the marriage ser- abundant evidence from which the court 
 
 vice having been performed in a place and a jury might assume that the place 
 
 where divine service was several times was properly licensed for the celebration 
 
 performed, the rule "om n ia prccsii m u nt ii r of marriages. 
 
 rile nda," applies, and that we must (k) Keg. v. Tilson, 1 F. & F. 54. 
 
 assume that the place was properly (/) Rex v. Northfield, Dougl. G59. 
 licensed, and that the clergj-mcn per-
 
 CHAP, v.] Marriages in District Churches. 
 
 before the passing of this Act, to solemnize marriages ;' and that 
 all marriages hereinafter (m) solemnized therein shall be as good 
 and valid as if tliey had been solemnized in parish churches, &c., 
 wherein banns had usually been published before or at the time 
 of passing the 26 Geo. 2, And the registers of marriages solem- 
 nized in the churches or chapels, by the G Geo. 4, enacted to be 
 valid in law, or copies thereof, are to be received as evidence, in 
 the same manner as the registers of marriages in parish churches, 
 &c., in which banns were usually published before or at the time 
 of the 26 Geo. 2, c. 33, or copies thereof, are received ; but liable 
 to the same objections as would be available to exclude the latter 
 from being received, {n) But such registers of marriages, solem- 
 nized in any public chapel, and made valid by the 6 Geo. 4, c. 92, 
 are, within three months from the passing of the Act, to be 
 removed to the parish church of the parish in which such chapel 
 is situated ; and if it be situated in an extra-parochial place, then 
 to the parish church next adjoining, to be kept with the marriage 
 registers of such parish, and in like manner as parish registers are 
 directed to be kept by the 26 Geo. 2. (o) 
 
 Where a marriage was solemnized in a chapel, before the 
 6 Geo. 4, c. 92, there must be some evidence given that banns 
 were usually published there before the passing of the 26 
 Geo. 2, c. 33 ; but it was iwimd facie sufficient for that pur- 
 pose to produce an old register of marriages solemnized in 
 the chapel before that Act, and a regular register of banns 
 published there since, and to prove that within the recol- 
 lection of witnesses banns had been published and marriages 
 solemnized in it from time to time of late years, (j?) But where 
 on an indictment for bigamy it appeared that the first marriage 
 was celebrated at the chapel of Great Barr, which was a chapel 
 in the parish of Aldridge, in the year 1843, and that marriages 
 had been solemnized there for the last twenty ycar.s, but no register 
 was produced, nor any further evidence given as to the celebration 
 of marriages or publication of banns there ; Piatt, B., held the 
 evidence insufficient, as it was necessary to show citlier that tlie 
 chapel was one in which banns had been usually published before 
 the 26 Geo. 3, c. 33, or that the chajacl was built and consecrated 
 after that Act, and before the 6 Geo. 4, c. 92. {q) 
 
 By the 6 & 7 Vict. c. 37, s. 15, an Act to make better pro- 
 vision for the spiritual care of popular parishes, where any church 
 or chapel has been consecrated as the church or chapel of any 
 district constituted under the Act, such district is to be a new 
 parish for ecclesiastical purposes, and ' it shall be lawful to publish 
 banns of matrimony in such church, and according to the laws 
 and canons in force in this realm to solemnize therein marriages ;' 
 and the several laws relating to the publication of banns and the 
 performance of marriages and the registering thereof, shall apply 
 to the church of such new parish, and to the perpetual curate 
 
 303 
 
 Evidence of 
 banns before 
 the 26 Geo. ! 
 c. 33. 
 
 Jrarriagcs in 
 district 
 churches, &c. 
 
 (ni) Sic, it should be ' hereafter. ' 
 
 {n) 6 Geo. 4, c. 92, s. 3. 
 
 (o) Id. see. \. 
 
 (p) Taunton v. Wyvorn, 2 Canipb. II. 
 297. This case was tried in 1809, after 
 the passing of the 26 Geo. 3, and before 
 
 the 6 Geo. 4, c. 92. 
 
 iq) Keg. V. Bowcn, 2 C. k K. 227, 
 tried ]\Iarch 18, 1846. The 6 Geo. 4, 
 c. 92, received the lioyal Assent 5th 
 July, 1825.
 
 304 Of Bifjamy. [nooK v. 
 
 tliproof. And l»y tlio S i^ Vict. c. 70, s. 10, an Act for ainoriding 
 
 the ('Imrcli huildiiig Acts, banns of marriage may be published 
 
 and marriages performed in tlie church of every consolidated 
 
 cliapclry fonned in the manner thorfin mentioned. 
 
 Marriages in The 7 & ^ WcX. c. ;")(), s. 3, reciting that by error banns have 
 
 certain diaprls j^^.j,,, j)ul)lished and niarriag(,'S solemnized in chapels with districts 
 
 rondcroa valid. _.^^^i^,„^.,i ^,, ^,„.,„ ,„„|^.,. jj„. -jj (.^,, .^^ ^ y;^,^ ^ ^ 2 Will. 4, C. :W, 
 
 1 it 2 Vict. c. 107, and .'{ & 4 Vict. c. (iO, or some of them, but in 
 which chapels banns C(juld not be legally pul>lished nor marriages 
 by law be solemnized, enacts that ' banns already (29th July, 1844) 
 published and marriages already solemnized in such chapels as 
 aforesaid shall not hereafter be questioned on account of the said 
 banns having ])eo)i published, or the said marriages solemnized 
 in any such chapel as aforesaid, and the registers of all marriages 
 so solemnized as af(jresaid, or copies of such registers, shall be 
 received in all courts of law and equity as evidence of such 
 marriages respectively.' (r) 
 
 The 14 & 15 Vict. c. 97, s. 25, (rr) enacts that, where by error'and 
 ■without fraud banns had been published or marriages solemnized, in 
 the church of any parish or district irt which they could not lawfully 
 be published or solemnized, the banns already (7th August, 1851) 
 published and marriages already solemnized, shall not be questioned 
 by reason thereof, except where some suit was pending. 
 
 The 24 & 25 Vict. c. IG, s. 4, renders valid all banns publisheil 
 and all marriages solemnized ' before the 17th of May, 1861, in 
 churches and chapels which had been duly consecrated, but in 
 which banns could not legally be published nor marriages by law- 
 be solemnized ; but the Act is not prospective, (.s) 
 
 The 18 & 19 Vict. c. 81, s. 13, renders valid marriages had 
 before the 30th July, 1855, in any building registered under the 
 6 & 7 Will. 4, c. 85, but not certified as required by any Act. 
 
 (/•) Sec. 1 provides that where a dis- and marriages solemnized in any such 
 
 trict has been or shall he assigned to any church or chapel according to the laws 
 
 church or chapel under the 3 & 4 Vict. and canons in force within this realm in 
 
 c. GO, the Church Building Commissioners that behalf shall, after the granting of 
 
 or the bishop may determine as to banns such certificate, be good to all intents 
 
 and marriages in any such church or and inirposes whatsoever : provided al- 
 
 chapel ; ami sec. 2 enacts that when and ways, that no banns or marriages respec- 
 
 so soon as it shall be determined that tively published or solemnized according 
 
 banns of matrimony may be published to the laws and canons in force within 
 
 aTid marriages solemnized in any such the realm in that behalf in any church 
 
 church or chapel, the bishop of the or chapel in which the same are autho- 
 
 diocese within which such church or rized to be respectively published, solem- 
 
 chapel shall be locally situated, whether nized, and had by the said recited Acts 
 
 in any parish or extra-parochial place, or this Act, or cither of them, shall be 
 
 or otherwise, shall certify the same, aiul invalid by reason of any such certificate 
 
 such certificate shall be kept in the chest not having been duly given, or registered 
 
 of the church or chapel with the books of or entered, as hereinbefore required. 
 registry theieof, aiul a copy thereof shall {rr) See 38 & 39 Yict. c. 66. 
 
 be entered in the books of the Registry (s) The Act also indemnifies ministers 
 
 of iianns and Marriages, and a duplicate who had solemnized any marriages in 
 
 of such certificate shall be registered in such churches and chapels, and makes the 
 
 the registry of the diocese, and such cer- registers and copies of them admissible in 
 
 tificate shall be deemed and taken to lie evidence. Marriages in chapels, erected 
 
 conclusive evidence in all courts, and in and consecrated since 26 Geo. 2, c. 33, 
 
 all questions relating to any banns pub- were rendered valid by various other 
 
 lished or marriages solemnized in any retrospective statutes ; see 21 Geo. 3, 
 
 such church or chapel, that the same c. 53 ; 44 Geo. 3, c. 77 ; 48 Geo. 3, 
 
 ndght according to law respectively be c. 127 ; and see 6 Geo. 4, c. 92, noticed 
 
 published and solemnized in such church and; p. 302. 
 or chapel, and that all banns published
 
 CHAP, v.] 
 
 Marriages in Scotland. 
 
 The 4 Geo. 4, c. 76, and & 7 Will. 4, c. 85, only extend to that 
 part of the United Kingdom called England, (t) With respect 
 to marriages in Scotland, though the point was formerly much 
 doubted, {u) it appears to have been afterwards settled that where 
 minors domiciled in England withdrew themselves into Scotland, 
 or places beyond the seas, for the purpose of evading the Mar- 
 riage Act, their marriage under such circumstances was neverthe- 
 less valid, {v) In one case, a writer to the signet proved that, 
 according to the law of Scotland, marriage is a civil contract 
 solemnly and deliberately entered into, and as if the parties had a 
 serious intention of living together as man and wife. The assent 
 of both parties must, therefore, be very distinctly and clearly 
 proved to have been given, in order to render the contract a valid 
 one. It is not necessary to the validity of such contract, that the 
 parties should afterwards live together as man and wife ; but the 
 fact of their afterwards living together as man and wife will ope- 
 rate to explain ambiguous words, if there be such, in the contract 
 itself. Where, therefore, the second marriage took place at Gretna 
 Green, and upon the whole evidence the assent of the second wife 
 was not ' distinctly and clearly proved,' and, though the parties 
 had lived together afterwards, the evidence tended rather to show 
 that they were living together in a state of concubinage, inasmuch 
 as the prisoner still continued to address her by her maiden name, 
 Alderson, B., directed the jury to find the prisoner not guilty, {lu) 
 And where, on an indictment for bigamy, to prove the second 
 marriage in Scotland, a witness stated that she (being the sister of 
 the second wife) was present at a ceremony performed by a 
 minister of a congregation, but whether of the Kirk she did not 
 know, in her private house in Edinburgh ; that she herself was 
 married in the same way, and that parties were always married in 
 Scotland in private houses ; that the prisoner and her sister lived 
 together in her house as man and wife for a few days after the 
 ceremony ; and the jury found the prisoner guilty ; upon the 
 question being reserved whether the evidence was sufficient to 
 justify the verdict, or whether some "witness, conversant Avith the 
 law of Scotland, should not have been called upon to say whether 
 the facts proved constituted a valid marriage according to that 
 law ; it was held that some such witness ought to have been 
 called, and that, even supposing that the witness had been a com- 
 petent witness for such a matter, her evidence did not prove a 
 marriage in fact, {x) 
 
 [x) Ke«. V. rovcv, Dears. C. C. 32. 
 22 L. J. M. C. 19. The Court said that 
 the Sussex Peerage Case, 11 CI. & F. 85, 
 had settled the point that a, i)erson not 
 ■peritus virhtte officii or virtuti- profcs- 
 fiionis, was inadmissible to jirove the law 
 of a foreign country, and had overnded 
 lu'g. r. Dent, 1 C. & K. '.T ; as to tins see 
 post, Evidence. See Lapsley v. Grierson, 
 1 H. L. C. 498, that illicit cohabitation 
 in Scotland begun in the lifetime of :i 
 husband, and continued after his death, 
 I'lmtinucs to bi'aran illicit character, un- 
 less there be a clear change in its charac- 
 terafter the death of the husViaudis known 
 to the parties. 
 
 (t) See arJr, pp. 278, 280. 
 
 («) See Burn's Just. tit. 3farri(i(ie, and 
 the observations of Lord Mansiicld in 
 Robinson r. Inland, 2 Burr. 1079. 
 
 (v) Cromptou v. Bearcroft, Bull, N. P. 
 113 ; and see the oj)inion of Eyre, C. .T., 
 in reasoning upon the case of P]iiIii])S v. 
 Hunter, 2 H. lilac. 412. And in Ildcr- 
 ton r. Ilderton, 2 H. Blac. 145, it was 
 taken to be clear that a marriage, cele- 
 brated in Scotland, is such a marriage as 
 would entitle the woman to her dower in 
 England. 
 
 {iv) Graham's case, 2 Lew. 97. In the 
 same case the same learned judge refused 
 to admit the certificate as ovideuce of the 
 marriage. 
 
 3 0.5 
 
 ^Marriages in 
 Scotland and 
 places beyond 
 the seas good, 
 if i^erformed 
 according to 
 the rites and 
 customs of the 
 country in 
 which they 
 were cele- 
 brated.
 
 30G OfBlcjamy. [book v. 
 
 By the I!) iV 20 Vift. c. !J(), s. I, 'alter tlio 8 1st of Dccoinbor, 
 liS5(), no incmilar lujuiiagc contracted in Scotland Ijy declaration, 
 ucknowlcd^^omcnt, or ceremony, shall be valid, unless one of the 
 parties hail at the date tliereof his or her usual place of residence 
 there, or had lived in Scotland for twenty-one days next preceding 
 such marriage; any law, custom or usage to the contrary notwith- 
 standing. 
 Miir.i.igc ill Where a soldier on service with the liritish army in St, Do- 
 
 st. Duiiiiiiyf. niingo, in 17!)(), being desirous of marrying the widow of another 
 soldier who liad died there in the service, the parties went to a 
 chapel in the town, and tlic ceremony was there performed by a 
 person appearing and orticiating as a priest ; the service being in 
 French, but interpreted into English by a person who officiated as 
 clerk, and understood at the time by the woman to be the marriage 
 service of the Church of England. This was licld sufficient evi- 
 dence, after eleven years' cohabitation, that the marriage was pro- 
 perly celebrated, although the woman stated that she did not know 
 that the person officiating was a priest. Lord Ellcnborough, C J., 
 in delivering his opinion, considered the case, first, as a marriage 
 celebrated in a place Avherc the law of England prevailed (sup- 
 poshig, in the absence of any evidence to the contrary, that the 
 • law of England, ecclesiastical and civil, was recognized by subjects 
 of England in a place occupied by the king's troops, who would 
 impliedly carry that law with them), and held that it would be a 
 good mari'iage by that law : for it would have been a good mar- 
 riage in this country before the Marriage Act, and consequently 
 would be so now in a foreign colony, to whicli that Act does not 
 extend. In the second place, he considered it upon the supposi- 
 tion that the law of England had not been cai"ried to St. Domingo 
 by the king's forces, nor Avas obligatory upon them in this par- 
 ticular ; and held that the facts stated would be evidence of a good 
 marriage according to the law of that country, whatever it niiglit 
 be ; and that upon such fjicts every presumption was to be made in 
 favour of the validity of the marriage, (y) 
 .Maniaso i.y a Where (before the 7 & 8 Yict. c. 81, post, p. 308) a person was 
 cleigj •raan of married at her father's house, in Ireland, in 17.99, in the presence 
 Enj,'iaiui in a ^^ ^^^'^ friends of both families, by a clergyman of the Church of 
 private lioiisc England, who had been curate of the parish for eighteen j'ears ; the 
 in Ireland. parish church was standing, but persons of respectability were 
 usually married at their own houses ; the parties lived together for 
 several years following as man and wife. TJiDon objection to the 
 validity of this marriage, Best, C. J., said, I know of no law which 
 says that celebration in a church is essential to the validity of a mar- 
 riage in Ireland. The English Marriage Act docs not apply, and I 
 am aware of no Irish law which takes marriages performed in that 
 coimtry out of the rules which prevailed in this before the passing 
 of that Act. Dolrymph' v. Dali'jmplc (■) has placed it beyond a 
 doubt that a marriage so celebrated as this has been would have 
 been held valid in this country before the existence of that 
 statute. ('0 So where in support of a plea of coverture it v.as 
 proved that Mrs. Quicke married Mr. Quicke at the house of the 
 
 (»/) Hex V. Brampton, 10 East, 282. (a) Smith v. Maxwell, K. &M. X, I'. IJ. 
 
 (r) 2 llngp:. 54. SO.
 
 CHAP, v.] Marriages in Ireland. 307 
 
 Rev. F. M'Guire, near Dublin, in TS42, and Mr. M'Gnire's Avidow 
 produced his letters of orders showing that he had been ordained 
 deacon and priest by bishops of the Establiyshed Church, and also 
 proved that when persons were married at their house, her husband 
 always made an entry in a register book, which she produced, and 
 also gave a certificate of the marriage to the persons married ; and 
 the register containetl an entry of the marriage of Mr. and Mrs. 
 Quicke, and Mrs. Quicke proved that slie married Mr. Quickc as 
 before mentioned, and produced the certificate given to her by Mr. 
 M'Guire ; Parke, B., held that the certificate was admissible as a part 
 of the transaction ; but not the register ; and that the marriage was 
 valid ; for although it was not celebrated in a church, it was a valid 
 marriage at common law before t]ie 7 & H A^ict. c. 81. (6) 
 
 Where a woman, being a Roman Catholic, and a man, being a 
 Protestant, went in 182() before Mr. Wood, a clergyman residing 
 in Dublin, who, in his private house, read to them the marriage 
 ceremony, and in the course of it asked her whether she would 
 be the wife of the man, and asked him whether he would be her 
 husband, to which ({ucstion both of them answered, ' I will :' Wood 
 Avas reputed to be a clergyman of the Established Church, and a 
 document purporting to be letters of orders signed and sealed by 
 W. late Archbishop of Tuam, dated in 1799, whereby the arch- 
 bishop certified that he had ordained Wood a priest, and which 
 letters were found among Wood's papers at the time of his death 
 in July 1829, was admitted without proof of the handwriting or 
 seal of the archbishop as being more than thirty years old. It was 
 held that this document was properly received in evidence, being 
 above thirty years old : if it had been only signed there could have 
 been no question as to its admissibility, but it Avas, in fact, also 
 scaled ; but although an archbishop is a corporation sole for many 
 purposes, yet such a certificate has no relation to his corporate 
 character, and the seal must be considered as the seal of the 
 natural person, and not of the corporation ; and consccpiently that 
 there Avas sufficient evidence of the marriage, (c) 
 
 In a case before the 7 & 8 Vict. c. Sl,2')0s(, p. 308, at the Old Bailey, ]\[;uTiagc by a 
 a question Avas made, Avhether a marriage of a dissenter in Ireland, 'lifscntiug 
 
 / p TIT ,• • ■ . • • . ministei" in a 
 
 AvJien performed by a dissentmg mmistcr m a private room, Avas pny-vie room 
 valid. It Avas contended, on behalf of the prisoner, Avho Avas in- iu Irelaml. 
 dieted for bigamy, that the marriage Avas illegal from the clandes- 
 tine manner in Avhich it Avas culebrated ; and several Irish statutes 
 were cited, from Avhich it Avas argued that the marriage of dis.seu- 
 ters in Ireland ought at least to be in the face of the congregation, 
 and not in a ])rivate room. But the recorder is said to liave been 
 clearly of opinion tliat tliis marringe was valid, on the ground that 
 as, before the Marriage Act, a marriage miglit have been celebrated 
 in England in a house, and it Avas only made necessary, by the en- 
 actment of i)0sitive law, to celebrate it in a churcli, .some laAV 
 should be sboAvn requiring dissenters to be married in a churcli, or 
 in tlio face of the congregation, in Ireland, before this marriage 
 e<nild be pronounced to be illegal : Avhereas one of the Irish 
 statutes, 21 & 22 Geo. ;{, c. 2.'>,((/) enacted, that all marriages 
 
 {U) And .SCO 11 Geo. 2, c. 10. IJy 32 
 Geo. 3, c. 21, 8. 12, Protestants may Itc 
 iiiimii'd to lloimui (.'atluilics )>v ilcr^v. 
 
 (h) 
 
 Slockbi-it 
 
 1-c c. 
 
 QuickC, 
 
 , oV. 
 
 k K. 
 
 805. 
 
 
 
 
 
 
 ('■•) 
 
 IIl-X v. v.. 
 
 ntlnvi( 
 
 .•k, 2 1'., 
 
 & A.l 
 
 , cap.
 
 Ireland 
 
 308 Of Bifjaiiuj. [book v. 
 
 hctwecu Protesi.-uit dissenters, celebrated Ijy a Protestant dis- 
 sentin;,' tcaclier, sliould be good, williout saying at what jilace tbey 
 sliouKI be celebrated, (c) 
 Siuiiitcs lis to 'I'l,^, 7 ^y;. ,s Vict. c. <SI,(/) amends the law of marriages in Ireland. 
 Under tliis Act under certain circumstances a marriage may be 
 solenuiize<l in eertjiin registered places of" j)ubli(M\orsliij) ami before 
 a ri'gistrar. 
 
 Sect. 4 provides tliat marriages between parties, both or either 
 of whom are Presbyterians, may be solemnized, according to the 
 forms used by Presbyterians, in certified meeting liouses. {(J) 
 
 Sect. 3:2. ' And be it enacted, that after any marriage sliall liave 
 been solemnized it sliall not be necessary in support of such 
 marriage to give any proof of the actual dwelling of either of the 
 parties previous to the marriage, within the district or presbytery 
 (as the case may be), wherein such mairiage was solemnized, for 
 the time recpiircd by this Act, or of the consent of any person 
 whose consent thereunto is required by law ; and where a man-iagc 
 shall have been solemnized in a certified Presbyterian meeting 
 house, it shall not be necessary to prove that either of the parties 
 was a Presbyterian, or, if the marriage was by license, that the cer- 
 tificate required to be delivered to the minister granting such 
 license had been so delivered, or, where the mamage was by banns, 
 that a certificate of the publication of banns had been produced to 
 the minister by Avliom the marriage was solemnized, in cases where 
 such production is required by this Act ; nor shall any evidence be 
 given to prove the contrary of any of these several particulars in 
 any suit touching the validity of such marriage, or in which such 
 marriage shall be questioned.' 
 
 Sec. 49. ' And be it enacted, that except in the case of marriages 
 
 men of the Established Church ; bat England. 
 
 sec. 13 contains a proviso that the Act (/) This Act was passed 9th August, 
 
 shall not authorise I'rotestant dissenting 1844, and is amended by 9 & 10 Vict. 
 
 ministers or Popish priests to celebrate c. 72, 26 & 27 Vict. c. 27, 33 & 34 
 
 marriage between Protestants of the Esta- Vict. c. 110, 34 & 35 Vict. c. 49, 36 Vict. 
 
 W(.s/<f(/C/*»A/i and Roman Catholics. The c. 16, 37 & 38 Vict. c. 96. See 26 & 27 
 
 clausi', however, does not enact that such Yiet. c. 90. 
 
 a marriage celebrated by a Protestant (g) "We have seen that a marriage before 
 
 dissenting tearlier shall be void. Sucli a tliis Act by a Presbyterian minister in 
 
 marriage, celebrated bv a Papish 2>ri(sf, Ireland was held void. E. r. ^lillis, a/iff, 
 
 would liave been void by ]9 Geo. 2, c. 13 p. 299. Put tlie 5 & 6 Vict. c. 113, s. 1, 
 
 (Irish) : and the 33 Geo. 3, c. 21, s. 12, renders all marriages celebrated in Ireland 
 
 only autliorises Popisli priests to celc- before the 12th August, 1842, by Pres- 
 
 brate marriage l>etwteu a Protestant and byterian or nther Protestant ministei-s or 
 
 a Papist, where .such Protestant and Pa- teachers, or those who at the time of such 
 
 1 list have been lirst married by a Protestant marriages had been sucli, of the same 
 clergyman. See the 3 & 4 AVill. 4, c. 103, force as if they had been celebrated by 
 which repeals the penal enactments made clergymen of the united Church of England 
 by 6 Ann. (I.), 12 Geo. 1 (I.\ 23 Geo. and Ireland. The 6 & 7 Vict. c. 39, 
 
 2 (I.), 12 Geo. 3 (I.), 33 Geo. 3 (I.), renders all similar maniages after the 
 .sgainst Catholic clergymen celebrating pa.ssing of the preceding Act, and before 
 marriages between Pi-otcstantsin Ireland, the ])assing of that Act, 2Sth July, 1843, 
 and see now the 33 & 34 Vict. c. 110, s. valid. And the 7 & 8 Vict. c. 81, s. 83, 
 39 (Irisli), 2^oftt, p. 310. contains a similar ]irovision as to such 
 
 (() lie.\ r. , Old P.ailoy, Jan. marriages between the passing of the pre- 
 
 Sess. 1815, (■('/•. Sir J. Silvester, Kecorder. ceding Act and that Act. Sec. 2 of 5 & 
 
 MS. The prisoner was an olHcer in the 6 Vict. c. 113, excepts maniages jireW- 
 
 army ; and his first marriage upon which ously adjudged invalid ; marriages where 
 
 this iiuestion was raised, took place iu eitlker of the parties had contracted an- 
 
 1787, at Londonderry. The second mar- other lawful marriage; and marriages re- 
 
 riage was celebrated in Loudon, accord- specthig which prosecutionswere pending 
 
 ing to the ceremonies of the Church of when the Act i>asscd, 12ih August, 1S42.
 
 CHAP, v.] Marriages in Ireland. 309 
 
 by Roman Catholic priests, which may now be lawfully celebrated, 
 if any person shall knowingly and wilfully intermarry after the 
 said thirty-first day of March, in any place other than the church 
 or chapel or certified Presbyterian meeting house, in which banns 
 of matrimony between the parties shall have been duly and law- 
 fully published, or specified in the license, where the marriage is 
 by license, or the church, chajicl, registered building or office, 
 specified in the notice and registrar's certificate or license as afore- 
 said, or without due notice to the registrar, or without certificate of 
 notice duly issued, or without license from the registrar, in case 
 such notice or license is necessary under this Act, or in the absence 
 of a registrar where the presence of a registrar is necessary under 
 this Act, or if any person shall knowingly or wilfully, after the said 
 thirty-first day of March, intermarry in any certified Presbyterian 
 meeting house without publication df banns, or any license, the 
 marriage of all such persons, except in any case hereinbefore ex- 
 cepted, shall be null and void. 
 
 The 33 & 34 Vict. c. 110 (amended by 34 & 35 Vict. c. 49), also 
 amends the law relating to marriages in Ireland. This Act con- 
 tains provisions as to the churches in which marriages may be 
 celebrated, and as to licenses for marriages. 
 
 By sec. 38, a marriage may, notwithstanding anything to the 
 contrary hereinbefore in this Act contained, be lawfully solemnized 
 by a Protestant Ei^iscopalian clergyman between a person who is a 
 Protestant Episcopalian and a person who is not a Protestant 
 Episcopalian, and by a Roman Catholic clergyman between a 
 person who is a Roman Catholic and a person who is not a 
 Roman Catholic, provided the following conditions are complied 
 with : — 
 
 1st. That such notice is given to the registrar, and such certi- 
 ficate is issued as at the time of the passing of this Act is 
 required by the 7 & 8 Vict. c. 81, as amended by the 
 26 Vict. c. 27, in every case of marriage intended to be 
 solemnized in Ii-eland according to the rites of the united 
 church of England and Ireland, with the exception of 
 marriages by license or special license, or after publi- 
 cation of banns. 
 
 2n(l. That the certificate of the registrar is delivered to the 
 clergyman solemnizing such marriage at tlie time of the 
 solemnization of the marriage. 
 
 3rd. That such marriage is solemnized in a building set apart 
 for the celebration of divine service, according to tlio rites 
 and ceremonies of the religion of the clergyman solemniz- 
 ing such marriage, and situate in the district of the regis- 
 trar by whom the certificate is issued. 
 
 4th. With open doors. 
 
 5th, That such marriage is solemnized between the hours of 
 
 ciglit in the forenoon and two in the afternoon, in tlie 
 
 presence of two or more credible witnesses. 
 
 Sec. 39. 'There shall be repealed so nnich of an Act of the 
 
 Parliament of Ireland, passed in the nineteenth year of the reign 
 
 of King George the second, chapter thirteen, as provides that a 
 
 marriage between a Papist and any person who h;ith lieen or hath
 
 :ui) 
 
 Of r,i(i<iii]y. 
 
 [B0(jK v. 
 
 Marriage of 
 iiunoi-s iu 
 Ireland. 
 
 A marriage 
 between Pro- 
 testants l>y a 
 Catholic iiricst 
 is still void. 
 
 4 Geo. 4, c. 91, 
 makes valid 
 certain niai'- 
 riages solem- 
 nized in the 
 chapel, &c., of 
 a British 
 minister, or of 
 a British 
 factory, or in 
 the army 
 broad. 
 
 idtifcssfil liiinsclt" or Iiors(jlf lo be u Protestant at any time within 
 twiilvo jnoiiilis l)C'luro such cchjhraiion of inarriaf(o, if celohratod hy 
 :i Popish priest, is to Ijo void ; hut. any luarriatfo soh-Minized hy a 
 l*rotcsl;inl IspiscopaliMM clor<rynian, hetwtjc-ii a pfjrson who is a l^o- 
 fcst.nit. l''pisrop;ilirin and a person who is not a Protestant Hpisco- 
 pali.in, or hv a Kouian Catholic clcr;^fynuin l)otwcc'n a person who 
 is a Komau (Jatiiolic and a person who is not a Roman Catholic, 
 shall lie void to all intents in cases wliero the parties to such mar- 
 riage knowingly and wilfidly intermarried without duo nf»tice to 
 the registrar, or without certiHcate of notice duly issued, or with- 
 out the iiresencoof two or more credihle witnesses, or in a huilding 
 not set apart for tht^ celebration of divine service, according to the 
 rites and ceremonies of the religion of the clergyman solemnizing 
 such marriage. 
 
 By .*U & o.') Vict. c. 4f), s. 27, wlienever a license for the 
 marriage of a Roman C!atholic with a person not a Roman ( 'atholic 
 shall have been issued, pursuant to ss. 2."> or 2G of this Act, such 
 marriage may lawfully be solemnized by a Roman Catholic clergy- 
 man between such persons. (A) 
 
 A marriage by license, iu Ireland, where one of the parties was 
 under age at the time, and there Avas no consent of the father, was 
 not absolutely void, but only voidable Avithin one year, under the 
 }) Geo. 2, c. 11, and if no proceedings were taken within the year 
 to avoid the marriage, it was binding, and the party, if he married 
 again (during the life of his wife) might be properly convicted of 
 bigamy, [i) 
 
 A marriage, however, celebrated by a Roman Catholic priest 
 between two Protestants is still illegal, and renders the person 
 celebrating it liable to be indicted for felony. {]) 
 
 The 4 Geo. 4, c. 91, recites the expediency of relieving the 
 minds of all his Majesty's subjects from any doubt concerning the 
 validity of marriages, solemnized by a minister of the Church of 
 England, in the chapel or house of any British ambas.sador or 
 minister residing within the country to the court of which he is 
 accredited, or in the chapel belonging to any British factory 
 abroad, or in the hduse of any British subject residing at such 
 factory, as well as from any possibility of doubt concerning the 
 validity of marriages solemnized Avithin the British lines by any 
 chaplain or officer, or other person, officiating under the orders of 
 the commanding officer of a British army serving abroad : and 
 then enacts, that ' all such marriages shall be deemed and held 
 to be as valid in law as if the same had been solemnized within 
 his Majesty's dominions, with a due observance of all forms required 
 by laAV.' But there is a proviso that this Act shall not confirm, or 
 impair, or affect the validity of anj' marriages solemnized beyond 
 the seas, save and except such as are solemnized as herein specified 
 and recited. (/.•) 
 
 (Ii) r>cfove those Acts a marriage cele- 
 brated in Ireland between a Koinan 
 Catbolic and a Protestant by a I'onian 
 Catholic priest was void. Sunderland's 
 case, 1 Lew. 109 ; U. v. Orgill, 9 I'. & P. 
 SO, Swift i\ Swift, 3 Knapp, 303, Ycl- 
 verton v. Yelvertou, House of Lords, per 
 Lord ^Venslevdalo. 
 
 (,) Kex )■. Jacobs, K. & il. C. C. E. 
 14(1. But since the 7 & 8 Vict. c. 81, 
 s. 32,proof of the consent of i^arents, &c., 
 is ininecessary. 
 
 0) Sec Pv. 15. V. Taggai-t, 2 Cox, C. C. 
 50. 
 
 {k) Sec. 2. This Act renders the 
 marriage valid, though one party be not
 
 HAP. V 
 
 ■] 
 
 Marriages Abroad. 
 
 311 
 
 The 12 & 13Vict. c. G8, wliicli passed on the 28tli of July, -Alamages 
 1 840, renders valid, ' all marriages (both or one of the parties f^^ '^^^''^i'^ 
 
 1 • 1 • 1 • /• 1 • 1 \ r,* 1 1 11 u -"iitisu consuls 
 
 thereto bemg subjects or a subject of this reahn) wnicli sliali be accoi-cUng to 
 solemnized in the manner in that Act provided in any foreign the 12 & 13 
 country or place where there shall be a British consul duly ,^^J'^^';j.;, ^^' ^'^ 
 authorized to act in such foreign country or place under that Act,' 
 and contains many provisions as to the manner of performing 
 such marriages before Britisli consuls. (/) 
 
 The 31 & 32 Vict. c. bl (which was passed on the Ibtli July, 
 1808), recites this Act, and that marriages have been from time 
 to time solemnized at certain places in Cliina and elsewhere l)e- 
 tvveen persons, being both or one of them subjects or a subject of 
 this realm, by persons acting temporarily as consuls in such places ; 
 and that ' doubts are entertained as to the validity of the said 
 marriages, owing to a question having arisen whether the persons 
 by whom the same were solemnized were duly authorized in that 
 behalf, and it is expedient to remove such doubts as to the said 
 marriages, and as to any marriages which may be celebrated in 
 like manner after the passing of this Act.' 
 
 Sec. 1. ' This Act may be cited for all purposes as the Consular 
 Marriage Act, 1868.' 
 
 Sec. 2. ' All marriages solemnized before the passing of this Act 
 (both or one of the parties thereto being subjects or a subject of 
 this realm) by or in the presence of any person acting or purport- 
 ing to act in the place of a British consul, such consul being duly 
 authorized to solemnize and register marriages according to the 
 provisions of the said recited Act, shall be as valid in law as if 
 the same had been solemnized by or in the presence of such Britisli 
 consul.' 
 
 Sec. 3. ' From and after the passing of this Act, every person 
 acting or legally authorized to act in the place of a British consul, 
 such consul being duly authorized to solemnize and register mar- 
 riages between persons (both or one of them being a subject or 
 subjects of this realm), shall be deemed to be a British consul duly 
 authorized for all the purposes of the said recited Act. 
 
 By 28 & 2.9 Vict. c. 01, after reciting that laws " have from time Laws m.ulo in 
 to time been made by the legislature of divers of her INIajesty's ^'^'^^^'^f^"';^.^^, 
 possessions abroad for the purpose of establishing the validity of legalizing'' 
 certain marriages previously contracted therein, but doubts are maniagcH. 
 entertained whether such laws are in all respects effectual for the 
 aforesaid purpose beyond the limits of such possessions," it is 
 enacted as follows : — 
 
 Sec. 1. 'Every law made or to 1)0 made by the leglshiture of any 
 such possession as aforesaid, for the purpose of establishing the 
 validity of any marriage or marriages contractcil in such posses- 
 sion, shall have and be deemed to have had from the date of the 
 making of such law, the same force and effect, for the purpose 
 aforesaid, within all parts of her Majesty's dominions, as such law 
 may have had, or may hereafter have, within the jxissession for 
 which the same was made : provided that nothing in this law con- 
 
 n lliitish sulijc.t. ./.'.• AVri-lit, 2 K. ki. 
 f.iir. ; 2^ \.. ,]'. Ch. G21. 
 
 (?) This Act was probably passed in 
 coiiseciufiice of Cnthenvood v, C'asloii, 
 
 Kutc, p. "iiO. V>y s. 13, after till' marriajTp, 
 jiroof of resilience and consent of neces- 
 sary parties is dispensed with, and nega- 
 tive evidence is excluded.
 
 312 Of Bigamy. [book v. 
 
 tallied shall ,t;lv(' any offect or validity to any mania<^'r', unless at 
 tlio tinu" i>l' such mariiagc! ])otli of tho ])artics tlicrot(j were, 
 iircordlng to the law of England, coinpotent to contract the 
 same' 
 
 Sec. 2. 'Ill this Act the word " legislature '' shall include any 
 authority competent to make laws for any of lier Majesty's posses- 
 sion a1)road, except the Parliament of the United Kingdom and 
 lier Majesty in Council.' 
 InMcxioo, . C'ertain marriages of Britisli subjects are legalized in Mexico Ijy 
 
 Moscow, the 17 & 1^> Vict. c. 8.S ; in Moscow, Tahiti, and Ningpo by the 21 
 
 Tahiti, ^^ 22 Vict. c. 4G ; at Lisbon, Ijy the 22 & 23 Vict. c. (J4 ; in the 
 
 Li'S?an,i Ionian Ishmds by the 23 & 24 Vict. c. 8(1 ; (/^ at JVLorro Velho, in 
 tii> Ionian the empire of Brazil, by the 30 & 31 Vict. c. 93 ; and provision is 
 Islands. made for the tran.smis.sion to the registrar general of certificates of 
 
 these marriages, &c. 
 
 Certain marriages in Odessa are legalized l)y the 30 & 31 Vict. 
 c. 2 ; and see as to China, 31 iV 32 Vict. c. (il. 
 ,y^^ The 58 Geo. 3, c. 84, renders marriages solemnized in India by 
 
 ministers of the Church of Scotland before the 31st December, 
 1818, valid ; and the 14 & 15 Vict. c. 40, (in) regulates marriages 
 in India after the 1st January, 1852, or such other day as the 
 Governor General shall direct, where one or both of the parties is 
 or are a person or persons professing tlie Christian religion. 
 M.arriagcs in ^larriagcs in the colony and dependencies of Newfoundland Avere 
 
 Newfound- for some time regulated by the statute 5 Geo. 4, c. 68, which re- 
 ^=^"'^- pealed a former statute, 57 Geo. 3, c. 51, upon the same subject. 
 
 The 5 Geo. 4, c. 68, with the exception of a proviso in sec. 1, rela- 
 ting to marriages Avhich had taken place before the 25th March, 
 1825, is repealed by the 36 & 37 Vic. c. 91. 
 Quakers' nuir- I'^ ^^^ action for criminal conversation the marriage of the plain- 
 riige, how tiff and his wife, who Avere both Quaker.s, had been performed 
 proved. according to the ceremonies of the sect, by a public declaration 
 
 of the parties at a monthly meeting of the society, of their 
 becoming man and wife, and a certificate to that efifect entered in 
 a register, signed by the parties and by sevei'al subscribing wit- 
 nesses. The register was produced and proved by one of the 
 witnes.ses, and a member of the .society proved the forms observed 
 to be those usually considered as necessary to marriage among 
 Quakers, {turn) 
 Jewish mar- Where two witnesses were called, who swore that they were 
 
 riajes. present in the Jewish synagogue when a marriage took place, it 
 
 was insisted that what took place in the synagogue was merely a 
 ratification of a previous written contract, and as that contract was 
 essential to the validity of the marriage, it ought to be produced 
 and proved ; and the contract, in the Hebrew tongue, was accord- 
 J'wish "igly pwt in and proved. (7i) So a Jewish divorce can only be 
 
 divorce. proved by producing the document of divorce delivered by the 
 
 liusband to the wife, {nn) 
 
 (U) This Act is repealed by 27 & 28 c. 66, passed 11th August, lSr:>. 
 
 A'ict. c. 77, s. 4. This latter Act contains (mm) Deane r. Thomas, !M. k M. 361. 
 
 ■[novisions as to m.irriages in tho Ionian See the 11 & 12 Vict. c. 58, 23 & 21 
 
 Islands, and makes certain documents Vict. c. 18 ; 32 Vict. c. 10, o«^, pp. 279 
 
 evidence. 293. 
 
 (m) This Act is repealed by the statute (u) Horn v. Noel, 1 Camp. 61. 
 
 law Revision Act, 1875, 37 i^ 38 Vict. (,})>) Lacon v. Higgins, 3 Stark. X. T.
 
 CHAP. V. 
 
 Marriage hy Reputation. 
 
 313 
 
 The law of France as to marriage may he proved by the produc- 
 tion of a book, purporting to contain the code of France, and 
 proved by oral testimony of a witness acquainted with the law of 
 France, to contain the law of France. The articles of the law of 
 France, which prescribe the forms essential to marriage, do not 
 declare a marriage void for nonobservance of those forms, but 
 parol evidence is admissible to show that, by the law of France, 
 a marriage in fact, without observance of the requisites prescribed 
 by the articles, is void, (o) 
 
 It was formerly held that if an idiot contracted matrimony, it 
 was good and should bind him : but modern resolutions appear to 
 have proceeded upon the more reasonable doctrine of the civil law, 
 by determining that the marriage of a lunatic, not being in a lucid 
 interval, is absolutely void. And as it might be difficult to prove 
 the exact state of the mind of the party at the actual celebration 
 of the nuptials, the 15 Geo. 2, c. 30, has provided that if persons 
 found lunatics under a commission, or committed to the care of 
 trustees by any Act of Parliament, marry before they arc declared 
 of sound mind by the Lord Chancellor, or the majority of such 
 trustees, the marriage shall be totally void, {p) 
 
 Upon indictments for bigamy it is not sufficient to prove a first 
 marriage by cohabitation and reputation ; but it is necessary to 
 prove what the courts call a marriage, in fact, that is, an actual 
 marriage, {q) The 4 Geo. 4, c. 76, s. 28, requires that marriages 
 shall be solemnized in the presence of two or more credible wit- 
 nesses, besides the minister who shall celebrate the same, and the 
 6 & 7 Will. 4, c. 86, s. 81, that it shall be registered in duplicate 
 according to the form in the schedule, and that each entry shall 
 be signed by the minister and parties married, and attested by two 
 witnesses. But, upon a provision nearly similar in the former 
 Marriage Act, it was hold not to be necessary to call one of the 
 subscribing witnesses to the register in order to prove the identity 
 of the persons married ; but that the register, or the copy of it, 
 being produced, any evidence which satisfied the jury as to the 
 identity of the parties was sufficient : as if their handwriting to 
 the register were proved ; or that bell-ringers were paid by them 
 for ringing for the wedding, or the like, (r) The prisoner was in- 
 dicted foi- marrying Ann Epton, whilst Jane, his former wife, was 
 living ; each marriage was proved by a witness who was present at 
 the ceremony ; and it ap^Deared that at the first marriage the pri- 
 soner went by the name of Allison, and at the second by the name 
 of Wilkinson. Cliambre, J., doubted wliether the evidence was 
 sufficient without jiroof of the banns; but the judges hekl that it 
 was. (rr) 
 
 UiDon an indictment for bigamy it was proved on tlie part of 
 the prisoner that her first husband, before he married her, had been 
 in Canada, and that he was absent for about two years, and wlicu 
 he returned he said he had brought his wife with him, and a lady 
 
 French mar- 
 riages. 
 
 Tlie maiTiage 
 of lunatics 
 void. 
 
 Marriage l\v 
 reputation not 
 sufficient 
 against a 
 j)risoner. 
 
 Evidence of 
 identity, &c. 
 
 US, 1111(1 (pi., whether sneh a divorce 
 would be any defence to an indictment 
 for bigamy. See the Icarncil note of the 
 reporters, ibid. 
 
 (o) Moss V. Smith, 1 Urn. & Gr. 228. 
 
 \p) 1 Blac. Com. 488, 432. 
 
 (9) C'utherwood v. Caslon, 13 M. & "W. 
 
 2C1. 
 
 (/•) 1 Kast, P. ('. c. 12, s. 11, p. 472. 
 ]5ull, N. r. 27. See Jlnrris v. iMiiler, 
 4 l>urr. 20r)7. liirt r. IJarlow, Dout,'!. 
 If. 2. 
 
 (;■/•) Rex V. Allison, ^IS. I'.aylcv, J., 
 and 1!. & K. 109.
 
 314 
 
 Of Ih'fjdii)//. 
 
 [liOOK V, 
 
 C'oiiics of 
 entries in 
 registers evi- 
 dence, if 
 sealed with 
 seal of register 
 office. 
 
 How far the 
 acknowledg- 
 ment of the 
 defendant is 
 sufficient evi- 
 dence. 
 
 nccompaniiil liini, whom Ik; Irc.'itod as liis wife, ami ovoiy one else 
 rct;".'ir(lf<l li<r in lliat capacity; she had been heard of as hoinj,^ 
 aliv(! alter the juisoDcr's Jiisi inarria^'O ; and theioiipon C'ronipton, 
 J., ink'r|)oscd, and said that llicie was evidence of" a jiiior inar- 
 lia^e, and, althongli there might be s(jme technical diHiculty in 
 ])roving the marriage in Canada, still if tlierc wa.s reasonable donl>t 
 of tlie fact, the prisoner ought to be ac([uitted, and the jury said it 
 Avas unnecessary to hear any more evidence. («) 
 
 In one case it was ruled, that if A. takes B. to husband in Hol- 
 land, and then, in Holland, takes C. to husband living B., and then 
 ]j. dies, and then A. living C. marries D., this is not man-ying a 
 .second husband, the former being alive; the marriage to C. living 
 B. being simply void. But if B. had been living, it would have 
 been felony to have married D. in England, (ss) 
 
 The prisoner w^as indicted for mai-rying E. Chant, widow, E. 
 Rowe, his wife, being then alive ; it apjieared that E. Chant was, 
 in fact and by reputation, a single woman ; it was objected that 
 she w\as improperl}' described in the indictment as a widow, and 
 upon a case reserved the judges were imanimously of opinion that 
 the misdescription was fatal, though it was not necessary to have 
 stated more than the name of the part3\ (t) So where, on an 
 indictment for bigamy describing the first wife as Ann Gooding, 
 an examined copy of the certificate (w) of the marriage of the 
 prisoner and Sarah Ann Gooding was put in, and there was no 
 evidence to explain the difference in the names : Maule, J., directed 
 an ac(piittal. (v) 
 
 On an indictment for bigamy a pliotograph which had been 
 taken from the prisoner, and which she had said was that of her 
 husband, was allowed to be shown to a witness present at the first 
 marriage, and also to another witness who had known the man of 
 whom the photograph was a likeness, in order to prove his identity 
 with the person mentioned in the marriage certificate, (y) 
 
 The C & 7 Will. 4, c. 8G (an Act for registering births, mar- 
 riages, and deaths in England), by sec. 38, enacts that all certified 
 copies of entries purporting to be sealed or stamped with the seal 
 of the register-office, shall be received as evidence of the birth, 
 death, or marriage to which the same relates, without any further 
 or other proof of such entry ; and no certified copy purporting to 
 be given in the said office shall be of any force or effect, wliicli is 
 not sealed or stamped as aforesaid, (c) 
 
 In one case it was held that proof of the prisoner's cohabiting 
 with and acknowledging himself married to a former wife then 
 living, such assertion Itcing backed by his producing to the witness 
 a copy of a proceeding in a Scotch court against him and his wife 
 
 (s) Eeg.r. Wilsou, 3F. & F. 119. See 
 Ilaniblin r. Slielton, 3 F. & F. 133 ; and 
 Doe d. Fleming t'. Fleming, 4 Bing. E. 
 26(>, for similar evidence in civil cases. 
 
 (ss) Ladv iladi.son's case, 1 Hale, 693. 
 
 (t) Eox \: Deelev, IJ. & M. C. C. K. 
 303. S. C. 4 C. & r. 579. But such a 
 variance may he amended under the 
 14 & 15 Vict! c. 100, s. 1. See vol. 1, 
 p. 52. 
 
 (ii) Quccir, Register. 
 
 (v) Keg. r. Gooding, t'. & M. 297. 
 
 Maule, .T. thought that 'evidence might 
 jierhaps be otl'ered to explain the circum- 
 stance of this difference in the name of 
 the prisonei"'s first wife, as she is described 
 in the indictment, and as described iu the 
 marriage certificate ; and even in the 
 absence of such evidence, proof might ho 
 su)i))licd that the woman was known by 
 both names.' 
 
 (I/) K. V. Tolson, 4 F. A; F. 103. 
 
 (:) See also the 3 & 4 Vict. c. 92, 
 21 & 22 Vict. c. 25. .^ee post, Fvi</.:nrc.
 
 CHAP, v.] 
 
 Evidence of Marriage. 
 
 315 
 
 for luaving contracted the marriage improperly (the marriage, how- 
 ever being still good according to that law) was sufficient evidence 
 of the first marriage. The point being reserved, all the judges 
 who were present held the conviction proper. Two of them ob- 
 served that this did not rest upon cohabitation and bare acknov/- 
 ledgment, for the defendant had backed his assertion by the 
 production of the copy of the proceeding ; but some of the judges 
 thought that the acknowledgment alone would have been suffi- 
 cient, and tliat the paper produced in evidence was only a con- 
 firmation of such acknowledgment, (a) So Avhere it was proved 
 that the prisoner being charged with bigamy made a statement 
 before a justice, in which he expressly declared that he had 
 married his first wife, who was then present ; Erskine, J., left 
 the case to the jury, observing, that this Avas not an incautious 
 statement made without due attention, but that the prisoner's 
 mind was directed to the very point by the charge matte against 
 him. (art) 
 
 So where upon an indictment for bigamy it appeared that the 
 prisoner returned from America with a woman described in the 
 indictment as Mary Carlisle, with whom he lived as his wife for 
 some years afterwards ; and that soon after his return he told her 
 sister that he had been married to Mary Carlisle at New York by 
 a Presbyterian minister, and he subsequently caused the bellman 
 at Oldham to give public notice, which he did, that no one was to 
 give credit to ' Mary, the wife of John Newton ; ' and some time 
 afterwards Mary Newton, describing herself as his wife, com- 
 plained to a magistrate of liis having ill-treated her, and the 
 l)risoner attended before the magistrate, and did not deny the 
 alleged marriage, but said he could no longer live with her on 
 account of her jealousy, and consented to allow her eiglit shillino-s 
 a week ; Wightman, J., after consulting Cresswell, J., told tlie 
 jury tlmt the question was, Avhether they were satisfied by the 
 statements made by the prisoner on the various occasions referred 
 to that he had been married to Mary Carlisle in America, and that 
 such marriage was a valid one according to the law of that countrv. 
 The jury were to say whether, as against the prisoner, it might 
 not 1)0 taken, on the faith of his own repeated declarations, that 
 the marriage had been a valid one according to the law in force at 
 New York. That declarations lightly or hastil}^ made were entitled 
 to very little weight in such a case ; but what the jDrisoner said 
 deliberately, and when it was obviously his interest to deny 
 marriage, if he did not know it to be a valid one, was un- 
 doubtedly evidence entitled to the very serious considerati(m of 
 the jury. (?>) 
 
 After prtjof of the first marriage the second wife may bo a wit- 
 
 Tlie prisoner' .s 
 declarations 
 deliberately 
 made of a 
 prior marriage 
 in a foreign 
 country are 
 evidence of a 
 legal marriage 
 tliere. 
 
 Tlie true wife 
 
 (a) Truman's case, Nottinf,'liam S])r. 
 Assizes, 17'.)i"<, derided llpiiu by tlloJud,i;es 
 in East. T. l?'.*;"), M8. Jud. l" Ivist', I'.'c. 
 c. 12, s. 10, ])]). i7it, 471; wliere see some 
 remarks as to the admission of a bare 
 neknowledgment in evidence iii a case of 
 tills nature. .\n admission or statement 
 made by a prisoner is evidence against 
 him, tliougii it may under cin'umstauees 
 lu' entitled to Utile or no Weight, 
 
 (lui) IJex r. Dennis Upton, (.lloucoster 
 Sj.r. Ahs. 18;ii». I{. r. Flaherty, 2 (.'. & 
 K. 782. See Dickinson r. Coward, 1 15. 
 & A. 079, i)er Lord Klh'nborougii, ('. J. 
 See also 2 Stark. Kvid. 251, 2nd edit. 
 
 (h) Keg. V. Newton, 2 M. .t Kob. r>03. 
 S. V. as Keg. v. Sinnuonsto, 1 C. & K. 
 1H4. See ]{. v. Savage, 13 C'ox, V. V. 
 178, where it seemu Lush J., refused to 
 ii't nil K. i>. Xewtoii.
 
 31G 
 
 cannot 1)C ft 
 witness. 
 
 (]f Biydmij. 
 
 HOOK V 
 
 Lettei-s. 
 
 iicss ; ltii( it is clcai- tliut the lirsi ;iii(l truo wifo cannot l^c rulinittcd 
 to givo cvidonco a<,^aiMst her Imsband. (c) 
 
 Tho ])risoner was indictc'd fur having mani(<l A. Walker, his 
 first wile, A. Annstronc,^ Ix-iiiff alivf : tlio prisoner's first marriage 
 with A. Armstrong was proved. 'J'ho prisuiier's defence was, tiiat 
 tho first marriaoc was void, as A. Armstrong had a Ijusband living 
 at the time, and lie proposed to call A. Armstrong to prove that 
 fact ; it was objected to her competency, that the fact of her mar- 
 riage with the prisoner having been proved, she must l)e taken to 
 be his lawful wife. Alderson, B., Avas at first inclined to think 
 that she might be examined simply to the fact of her being tho 
 wife or not of the prisoner ; but after conferring with "Williams, 
 J., he determined not to receive her evidence, but to reserve the 
 point. ((Z) But where a woman, called as a witness against a 
 prisoner, proved on the voire Oire that she married the prisoner in 
 1849, Eric, J., held that she might also prove on the voire dire that 
 she had a sister seven years older than hersell', and that they had 
 been brought up together with their parents, and that she always 
 believed that they were sisters, and that her sister had married the 
 pri.soner in 1846, and died in 1848 ; for if a person is questioned 
 on the voire dire with the view to raise an objection to her com- 
 petency, she may also be examined to remove that prima facie 
 ground of objection, (c) 
 
 A daughter wrote to her father in America, and in about two 
 months afterwards received a letter in reply in his handwriting, 
 dated the 81st of May, 1836 ; it was held that, this was evidence 
 that he was then alive. (/) 
 
 (c) 1 Hale, 693. 1 East, P. C. c. 12, 
 R. 9, p. 469, and 1 Hawk, c. 42, s. 8, where 
 it is said that this nilc has been so strictly 
 taken th.it even an affidavit to postpone 
 the trial made bj- tlie first wife h.as been 
 rejected, and Old Bailey, Feb. Sess. 17S6, 
 is cited. 
 
 (d) Peat's case. 2 Lewin, 288. The 
 prisoner was acquitted. The first im- 
 pression of the very learned Baron seems 
 to have been the correct one. The only 
 ground on which the witness could be 
 rejected was, that she was the lawful wife 
 of the j)risoiior ; for 'the general rule does 
 not extend to a wife tir fado, but not dc 
 jure: 2 Stark. Evid. 4:32, (2udedit.). In 
 Wells V. Fletcher, f) C. & P. 12. S. C. 1 II. 
 k Eob. 99, a woman called for the de- 
 fendant on examination on the voire dire, 
 .said .she liad been married to the plaintiff, 
 and on re-examination tliat she was mar- 
 ried to another })orson ]ireviously ; but, 
 not seeing liim for thirty years, she thought 
 he was dead, and therefore married the 
 plaintiti', but afterwards found that her 
 lii"st husband wasliving; andPatteson,.!., 
 held tliat the witness was competent, as the 
 .second marriage was a nullity. If I'eat's 
 case had been an indictment for larceny, 
 and the witness called for the prisoner liail 
 proved her marriage to him on the voire 
 dire, "Wells x\ Fletcher shows that she 
 might have been rendered competent by 
 proving lier previous marriage, and it is 
 difficult to see how proof by other evi- 
 
 dence that she liad married tlie prisoner, 
 whether sucli evidence wa.s given before 
 or after she was called, could render her 
 incompetent ; for her evidence would not 
 be inconsistent with such evidence, as it 
 would admit the marriage with the pri- 
 soner, but show that it was void. Eex r. 
 Bathwick, 2 B. &Ad. 639, shows that the 
 competency of tlie wife docs not depend 
 upon the marshalling of the evidence, or 
 tlie particular stage of the case in which 
 she maybe called ; if, therefore, in Peat's 
 case the witness had been called before 
 her marriage with the prisoner had been 
 proved, and she would have been compe- 
 tent to prove her previous marriage, it is 
 difficult to see how hermaniage with the 
 prisoner having been proved liefore she 
 was called couhl render her incompetent, 
 and it certainlj* would operate hardly on 
 a prisoner, if such were llu^ case, for the 
 prosecutor might in the course of his c.a.se 
 l>rove the marriage of the witness witli 
 the prisoner, and the prisoner might li.iTe 
 no one except the witness to prove the 
 former maniage. It may be added that 
 Lord Hale, vol. 1, p. 693, s.iys that a 
 second wife is not so much as a Avife de 
 faeto. C. S. 0. 
 
 (f) Peg. r. Young, o Cox, C. C. 296. 
 
 (/) Peed r. Norman, 8 C". & P. 6.5. 
 Lord Denman, C. J. ; liis lord.shi]i held 
 in the same case, that the post mark was 
 evidence that the letter was put into the 
 post, but that the letter might havebeeu
 
 CHAP, v.] Evidence — Indictment. 317 
 
 An indictment for bigamy under the 35 Geo. 3, c. 57, s. 1 (now Form of in- 
 repealed), alleging that the prisoner married A., and afterwards clictment. 
 feloniously married C, ' the said A., his former wife, being then 
 alive,' sufficiently charged the otfence, without also alleging that 
 the prisoner was still married to A., when he married C. ; for a 
 divorce from A. was not to be presumed, {g) 
 
 Avritten at any time, and tlicreibre prool' v. Jlassey, 5 B. & Ad. 903. Potcz v, 
 
 was given tliat it was in reply to the Glossop, 2 Exch. R. 191. Anderson v. 
 
 daughter's letter ; but this seems to have Weston, 6 B. N. C. 296. Morgan v. 
 
 been unnecessary, for the date is prima Whitmore, 6 Exeh. 716. 
 
 /f'./c evidence of the time when an instru- (g) IMurrayt;. The Queen, 7 Q. B. 700. 
 
 ment is written. Eex t'. Harborne. Sin- Eeg. v. Ai^ley, 1 Cox, C. C. 71. 
 
 clair r. Baggalcy, i M. & AV. 313. Hunt
 
 318 
 
 BOOK THE SIXTH. 
 
 OF EVIDENCE. 
 
 CHAPTER THE FIRST. 
 
 Rules of evi- 
 dence tlic 
 baiue in cri- 
 ininiil AS civil 
 cases. 
 
 Bill of ex- 
 ceptions to 
 evidence. 
 
 Case resened. 
 
 OF WHAT NATURE EVIDENCE MUST BE.— OF PRESUSIPTIVE EVI- 
 DENCE, p. 320. — ON THE RULE THAT THE BEST POSSIBLE 
 EVIDENCE MUST BE PRODUCED, p. 327 — AND OF HEARSAY EVI- 
 DENCE, p. 841). 
 
 Before entering upon the suLject of Presumptive Evidence, to 
 ■\vliicli tlie following section will be appropriated, it may be proper 
 to pay attention to a few points applicable to the law of evidence 
 in criminal prosecutions generally. 
 
 There is in general no difference as to the rules of evidence 
 between criminal and civil cases. "What may be received in the 
 one case may be received in the other, and what is rejected in the 
 one ought to be rejected in the other. («) A foct must be estab- 
 lished by the same evidence, whether it is to be followed by a 
 criminal or civil consequence. (6) 
 
 It has been doubted Avhether a bill of exceptions lies in any 
 criminal case, (c) It seems now to be settled that it does not. (d) 
 If the judge who presided at the trial was of opinion that there 
 %vas a doubt whether he might not have admitted some evidence or 
 Avitness improperly, or whether the facts proved constituted the 
 crime charged, he might formerl}^, in his discretion, forbear to pass 
 sentence, or respite the judgment, until the opinions of the fifteen 
 judges were obtained upon a case reserved. And now by the 11 
 i^- 12 Vict. c. 78 (e), when any person is convicted of any treason, 
 felony, or misdemeanor, before any court of oyer and terminer or 
 gaol delivery or court of quarter sessions, the judge or commis- 
 sioner or justices of the peace before whom the case is tried, may, 
 in his or their discretion, reserve any question of law, which has 
 arisen on the trial (/) for the consideration of the court consti- 
 
 (a) Bv Abbott, J., iu Ilex v. Watson, 
 2 Starlx." It. If).-). 
 
 (b) Lord Melville's case, 29 How. St. 
 Tr. 763. 
 
 (0 Sir II. Vane's ca-se, 1 Lev. 68. S. C. 
 Kcl. 15. 1 Sid. 85. Hawk. P. C. h. 2, 
 c. 46, s. 210. Rex r. Lord Paget and 
 others, 1 Leon. 5. Rex r. Nutt, 1 Bar- 
 nardist. 307. 2 Phil. Ev. -165. Rex r. 
 Inhabitants of Preston, Cas. tcmi'. 
 
 Hariiw. 240. 
 
 (<0 Rc£r. r. Rice, 2 Cox, C. C. IIS ; 
 R. r. .Telly, 10 Cox, C. C. .553 ; Reg. r. 
 Esdaile, f F. & F. 213. Lord Ciunpbell, 
 C. J. Reg. r. AUevne, Dears. C. C. 505. 
 Arch. C.'P. 149. "Reg. r. Brown, Arch. 
 C. P. 149. 
 
 (f) See tlic Appendix of Statutes, viii. 
 
 (/) If prisoner pleads guilty, no ques- 
 tion can I'c reserved under this Act, R. r.
 
 CHAP. I. ] Case Reserved — New Trial. 319 
 
 tuted by that Act, and forbear to pass sentence, or respite the 
 judgment until sncli question is decided, {g) If the case were 
 clearly made out by proper evidence in such a way as to leave no 
 doubt of the guilt of the prisoner in the mind of any reasonable 
 man, such a conviction ought not, it seems, to be set aside because 
 some other evidence was given which ought not to have been re- 
 ceived ; (It) but if the case without such improper evidence were 
 not so clearly made out, and the improper evidence might be 
 supposed to have had an effect on the minds of the jury, it would 
 be otherwise, {i) 
 
 Where the defendant has been convicted on an indictment for New trial 
 a misdemeanor, removed into the Court of Queen's Bench by a ^^i^eu iudict- 
 writ of certiorari, a new trial may be granted, at the instance of 'Jient for mis- 
 the defendant, where the justice of the case requires it. {]) moved into 
 Where several defendants are tried at the same time for a misde- Queen's Bench, 
 meaner thus removed, and some are acquitted and others con- 
 victed, the Court of Queen's Bench may grant a new trial as to 
 those convicted, if they think the conviction improper, (/t) And 
 it is a rule that where there is only one defendant, he must 
 be present in court when a motion is made for a new trial. {I) 
 And where several defendants are convicted upon an indict- 
 ment for a misdemeanor thus removed into the Court of 
 Queen's Bench, all must be present in court when a motion is 
 made for a new trial on behalf of any of them, unless a special 
 ground be laid for dispensing with their attendance, {in) But 
 Avhere a defendant has been found guilty of an offence, e. g. a 
 nuisance, for which he is not liable to i:>er.'<onal iniiushmcnt, but 
 only to a fine, it is not necessary that he should be present in court 
 when a motion is made for a new trial, {n) Whenever it is neces- 
 sary for a defendant to be present, if he be already in custody, he 
 must obtain a Jiaheas corpus to bring him into court, (o) The 
 l^resence of the defendant is not necessary on the argument of a 
 special verdict, as the presumption of innocence may be supposed 
 to continue, {od) As a general rule, no new trial can be had where j^ftgr an 
 the defendant is acquitted, although the acquittal was founded on acquittal, 
 the misdirection of the judge ; {'p) or where a verdict is found for a 
 defendant on a pica of (ijifrefois acquit, although that raises a 
 
 Clark, L. U. 1 C. C. E. :,\, 3G I.. J. M. Scaife, 17 Q. P.. 238. 2 Den. C. C. 231 ; 
 
 C. 16 ; 10 Cox, C. C. 338. 13 East, 41(5. 
 
 {g) See the rules issued by the judges (k) Wqxv. Mawbcy, 6 T. E. 610. ]{c-^'. 
 
 as to such cases reserved in 1 Den. ?•. Gompcrtz, 9 Q. 15. 824. Ikit in eon- 
 
 C. C. ix. s])iracy, if several arc convicted, the new 
 
 (/() But ser- tlif mure concct aceount trial must be as to all, tli<)U»;li only one 
 
 of Rex V. Tinkli.r, on wliich Rex v. Ball, shows himself to l)e entitled tn it. 
 
 infra, is reported to have been rested, in (/) JJeg. v. ('amhvell, 17 *J. 15. .''>03, 21 
 
 1 Den. C. C. iv., and Lord Dennian's li. J. M. C. 48. Howard c. Keg. 11 Ltvv 
 
 notes, ibid. T. 629. 
 
 (r) Bex I'. Ball, B. k R. 132. B^x r. (tn) Bex r. Teal, 11 East, 307. Bex 
 
 Oldroyd, ibid. 88 ; but see Rex v. c. Askew, 3 M. k S. 9. 
 
 Harling, B. & .M. V. (.'. B. 39. See 36 & (n) Beg. r. Parkin.son, 2 Dcii. C. ('. 
 
 37 A'iet. c. 06, sched. B. 4S. 4.';!», 21 L. .1. M. C. -IS, n(.te(/ 1. 
 
 (;■) Bex r. Mawl>ey, 6 T. B. 63S. V'l B.-v r. Sprngg. 2 i'.nrr. B. 930. See 
 
 Tidd, 942, 943. Beg. r. Whitehouse, B. r. ib.llingb.rry, 4 B. & C 329, wli.-re 
 
 Dears. C. C. 1. It seems there can be the defendant is in lU'^tody on eriminal 
 
 no new trial in cases of felony, Ej: jmrle process. 
 
 Edulgee Byranijec, 11 Jur. 855 ; H. v. (oo) Note I" Bex c. Spragg. 
 
 Bertram!, L B.' 1 1'. C. 520, 10 C.x. ('. ( ;,) B,.\ v. Cohen, 1 Stark. X. V. C. 
 
 C. 618 ; .Vtt.-(;en. of New South AVah-s .Mt;. jJcx r. Sutton, 5 B. fi Ad. 62. 
 v. ^Murphy, 11 Cox, C. C. 372; Beg. r.
 
 :i20 
 
 Of Evidence. 
 
 [book VI 
 
 collateral issue, wliitli may have been found \n favour of the defeii- 
 (lant on insuflicit-nt evidence, (ry) But wliere tlio pnjcecding is in 
 substance merely to try u civil right, a new trial may Ite granted 
 wliere the indictment has been removed as ab(jve after an ac- 
 quittal ; (/•) and tlicrefore a new trial may 1)C granted where the 
 fpiostion is as to the lial>ility to repair a liighway, {h) but not where 
 the charge is a wrongful obstruction of a highway, [t) Before the 
 Judicature Acts, when it was intended to move tlie Court of 
 Quern's Bench for a new trial in a criminal case, either the motion 
 should be made within the first four days of term, or during those 
 days an intimation must have been given to the Court that counsel 
 was prepared to make tliat motion, {u) 
 
 Presumptive 
 or circum- 
 stantial evi- 
 dence. 
 
 Sec. I. 
 
 (tf r i-caumptivc Evidence. 
 
 \\'hen a fact itself cannot be proved, that which comes nearest to 
 the proof of the fact is the proof of the circumstances that neces- 
 sarily or usually attend such facts, and are called presumptions, 
 not proofs, for they stand instead of the proofs till the contrary be 
 proved, (i') In criminal cases, from the secret manner in ■which 
 guilty actions arc generally perpetrated, it is seldom possible to 
 give direct evidence of the commission of the offence charged, i. c. 
 to produce a witness who saw the act committed ; and, therefore, 
 recourse must necessarily be had to presumptive (or, as it is often 
 called, circumstantial) evidence, i. e. the direct evidence of cir- 
 cumstances, from which the commission of the act may be pre- 
 sumed by the jury, {w) 
 
 iq) Ecx r. Lea, 2 U. C. C. IJ. P, S. C. 
 7 C. & r.836. 
 
 (?•) K.'g. V. Cliorlcv, 12 Q. P.. r.l".. 
 r.eg. V. l.'ussell, 3 E. &"];. IM2, 23 L. J. M. 
 C. 173. Reg. r. Leigh, 10 A. & E. 398. 
 
 (s) Ecg. V. C'horlcy, SHj)ra. 
 
 (t) Keg. ?•. Kussell, svpra. IJcg. r. 
 Jolmsou, 2 E. & E, 613, 29 L. J. M. V. 
 133. 
 
 (m) Reg. r. Newman, 1 E. & B. 268, 
 22 L. J. Q. ]?. 156. 
 
 (v) Gill). Ev. 142. As if a man be 
 found .suddenly dead in a room, and 
 another be found running out in haste 
 with a bloody sword ; this is a violent 
 presumption that he is the murderer : for 
 tiic blood, the weapon, and the hasty 
 llight, are all the necessary concomitants 
 to such horriil facts ; and the next proof 
 to the sight of the fact itself, is the jjroof 
 of those circumstances that do necessarily 
 attend such fact. Ibid. Unless the wound 
 was in such a part of the body that the 
 deceased could not have inlHcted it him- 
 self, and it was shown that no other per- 
 son had been in the room, it is conceived 
 that such a presumption ought not to be 
 considered as conclusive. In Ashford v. 
 Thonjton, 1 B. & Aid. 428, where the 
 subject of presumption in cases of mur- 
 
 der was much discussed, Abbott, J., 
 said, ' A case might be put where a per- 
 son should come up and find another 
 lying wounded with a dagger in his body, 
 and should draw it out, or should, in 
 assisting the wounded man, wrench the 
 knife out of the murderer's hand ; then, 
 if the murderer escaped, leaving him with 
 the body, according to this law [Bracton] 
 he would be considered guilty of the 
 murder, and be immediately hanged 
 without trial.' And, ' in the history of 
 the law, several presumptions which were 
 at one time deemed conclusive by the 
 courts, have, by the opinions of later 
 judges, acting upon more enlarged prin- 
 ciples, become conclusive onlj' in the 
 absence of proof to the contrary, or have 
 been treated as wholly within the discre- 
 tion of juries." 1 Phil. Ev. 441. 
 C. S. G. 
 
 («•) Presumptions are often divided 
 into three sorts, — violent, probable, and 
 light. Co. Lit. 6 //. 3 Blac. Com. 371. 
 l>ut such a classification seems altogether 
 useless, and the distinction to amount to 
 nothing more than that in one case the 
 presumptive evidence maj' be very strong, 
 in anotner less so, and in another very 
 weak. See 1 Stark. Ev. 838, ct scj.
 
 CHAP. I. § I.] Presumptive Evidence. 321 
 
 Where an indictment for murder was supported entirely by "What chcum- 
 circumstantial evidence, and there was no fact which, taken stantial evi- 
 
 clcncc is surd." 
 
 alone, amounted to a presumption of guilt ; Alderson, B., told the cient to war- 
 jury that before they could find the prisoner guilt}', they must be rant a convic- 
 satisfied ' not only that those circumstances were consistent with *^°°" 
 his having committed the act, but they must also be satisfied that 
 the facts were such as to be inconsistent with any other rational 
 conclusion than that the prisoner was the guilty person ; ' and he 
 then pointed out to them the proneness of the human mind to 
 look for, and often slightly to distort the facts, in order to es- 
 tablish such a proposition, forgetting that a single circumstance, 
 which is inconsistent with such a conclusion, is of more im- 
 portance than all the rest, inasmuch as it destroys the liypothesis 
 of guilt, (x) 
 
 There is no difference between civil and criminal cases, with 
 reference to the modes of proof by direct or circumstantial evi- 
 dence, except that in the former, where civil rights are ascer- 
 tained, a less degree of probability may be safely adopted as 
 a ground of judgment, than in the latter, which affect life and 
 liberty, (y) 
 
 One of the most usual jDresumptions in criminal prosecutions Instances of 
 occurs in cases of larceny, where upon jDroof of the felony having P^c^wmptioLs. 
 been committed, and of the property stolen having been shortly 
 afterwards found in the possession of the prisoner, it is presumed 
 that he actually stole it, unless he prove hoAv he came by it. {z\ 
 
 (,'■) Hotlge'scase, 2 Lew. 227. Sei' the 
 very able observations on this subject, 1 
 Stark. Ev. 841, ct scq., 859, et seq. 
 
 {y) 1 Phil. Ev. 166, 7th edit. Perhaps 
 strong circumstantial evidence in cases of 
 crimes, committed for the most part in 
 secret, is the most satisfactory of any from 
 whence to draw the conclusion of guilt : 
 i'or men may be seduced to perjuiy by 
 many base motives, to which the secret 
 nature of the offence may sometimes 
 aflbrd a temptation ; but it can scarcely 
 happen that many circumstances, espe- 
 cially if they he such over which the 
 accuser could have no control, forming 
 altogether the links of a transaction, 
 should all unfortunately coneui- to fix the 
 presumption of guilt on an individual, 
 and yet such a conclusion be erronec us. 
 1 East, P. C. c. 5, s. 9, p. 223. 
 
 {z) "Where two prisoners were indi( hd 
 for stealing two horses, ami the case 
 against them consisted entirely of evi- 
 dence to show that Loth the horses w( ic 
 found soon after the robbery, in the joint 
 possession of the prisoners, and it aji- 
 pearcd that the horses had been stolen on 
 dilfercnt days, and at different jila-'es, 
 Littledale, J., conqiclled the prosecutor 
 to elect on which of the two stealings 
 he would proceed ; and his lordship ol)- 
 scrved that the possession of stolen jiro- 
 perty soon after a robbery is not in itself 
 a felony, though it raises a ]ircsumption 
 that the possessor is the thief ; it refers to 
 the original taking, with all its circum- 
 stances. Pcx V. Smith, V\\. & ilnod. 
 N. P. V. 295. ^Yhcre the onlv evidence 
 
 against the prisoner was that three sheets 
 were found upon liis bed in his house 
 three calendar mouths after they had beeu 
 stolen, and it was urged that this was too 
 long a time after the larceny to call on 
 the Yirisoncr to give an)' account how he 
 had become posse.s.sed of them ; and Kex 
 r. Adams, «9(/c; vol. 2, p. 275, was relied 
 n]>on ; Wightman, J , held that the ca.su 
 must go to the jury, as it seemed to him 
 that it was im])Ossible to lay down any 
 definite rule as to the jirecise time, which 
 was too great to call upon the prisoner to 
 give an account of the possession, and 
 that in this case there was some evidence, 
 although rrrij .sliijJif, for the jury to con- 
 siilcr. The jirisoner was accjuitted. 
 Peg. r. Hewlett, Falop Sja-ing Ass. 
 184;}, MS. C. S. G. 8ee vol. 2, p. 275, 
 et acq., and Peg. r. Knight, L. & ('. 
 378, and Peg. r. Pangmead, L. & f. 
 427, vol. 2, p. 277. Mr. Starkic ob- 
 serves that 'the recent possession of 
 .stolen goods is recognised by the law as 
 a Hording a presumption of guilt, and 
 theieforo, in one sense, is a ]>rcsuniption 
 of law, but it is still in elfect a mere 
 natural ]iresum](lion ; for although tlie 
 ciicumstance may weigli greatly with 
 tiie jury, it is to operate solely by its 
 natuial force, for a jury are not to convict 
 unless they be actually convinced in their 
 consciences of the truth of the fact. 
 .Such a ]iresuni]ition is, therefore, essen- 
 tially dilfercnt from the legal ]ucsnm[i- 
 tions in fact where a juiy are to infer 
 that .1 bond has or has not been satisfied, 
 as a few days or even hours, more or less, 
 
 V
 
 322 
 
 0/ J'Jeidencc. 
 
 [iJOOK VT. 
 
 Date of iu- 
 strunicuts. 
 
 Acceittaiicc of 
 a bill. 
 
 So also on an imlictmcnt for the crime of arson, proof that 
 ])roi)urty, which was taken out of tlie house at the time of tlic 
 liring, was afterwards found secreted in the possession of the 
 ]»risoner, raises a presumption that the prisoner was present, and 
 concerned in tho arson, (a) So also proof that clothes, weapons, 
 or implements, which are shown to have been previously in the 
 possession of the prisoner, were found at or near to the spot where 
 a felony was conunittcd, is fre([uently adduced in order to raise a 
 presumption that the prisoner was present at the time when the 
 felony was committed, (h) The liuyine- goods at an under value is 
 said to be presumptive evidence that the buyer knew they were 
 stolen, (c) Upon an indictment for perjury, in falsely taking the 
 freeholder's oath at the election of a knight of the shire, in the 
 name of J. W., it appearing by competent evidence that the 
 freeholder's oath was administered to a person Avho polled on the 
 second day of the election, by the name of J. W., and who swore 
 to his freehold and place t)f abode ; and that there was no such 
 person, and that the defendant voted on the second day, and was 
 no freeholder, and some time afterwards boasted that he had done 
 the trick, and was not paid enough for the job, and Avas afraid lie 
 should be pulled for his bad vote ; and it not appearing that 
 more than one false vote was given on the second day's poll, 
 or that the defendant voted in his own name, or in any other 
 than the name of J. W., it was held that there was sufficient 
 evidence for the jury to presume that the defendant voted in the 
 name of J. W., and couseciucntly to find him guilty of the charge 
 as alleged in the indictment. ((?) 
 
 Ordinarily all instruments are written at the time they bear 
 date, and therefore the date of any instrument is presumptive 
 evidence that it was made at the time of that date, (e) The date, 
 therefore of a bill of exchange is prmuX facie evidence that it was 
 drawn at that date. (/") 
 
 Ordinarily also a bill of exchange is accepted shortly, within a 
 few days, after it is drawn. The date of the bill, therefore. 
 
 lifive clajiseil, when the twenty years arc 
 tx|piring.' '1 Stark. Evid. lo^i. 
 
 (a) l\e.\ t'. Kickmau, 2 East, P. C. 
 1035. 
 
 (b) In lleg. r. Stonyer and otliers, 
 Stafford Spr. Ass. 1843. cor. AVifrhtman, 
 J., on an indictment for burglary in the 
 liouse of Keeling, evidence was given of 
 tlie iinding of a crowbar in the house of 
 one Bladon, wliich was near Kccling's, 
 and was liroken into the same night, it 
 being proved that the crowbar had been 
 previously seen in the possession of the 
 piisonei-s, and a cliest of drawers in 
 Kccling's house having been broken open 
 by such an instrument. Such is the in- 
 ference of guilt drawn from the discovery 
 I'f a broken kuife in the jiocket of the 
 prisoner, the other part of the blade being 
 funnd sticking in the window of a house, 
 which by means of such an instrument 
 had been burglariously entered. 1 Stark. 
 Ev. 844. Grceul. Ev. 49. See K. v. 
 E.xall, 4 F. & F. 1>22. 
 
 (c) Aotr, vol. 2. p. 486. 
 
 ^<f) l!e.\ f. IMcc, 6 East, 323. The 
 
 following is an example of a c-a-'^e of cir- 
 cumstantial evidence too weak for con- 
 viction. Two women were indicted for 
 colouring a shilling and sixpence, and a 
 man (Isaacs) as counselling them, &c. 
 The evidence .igainst him was, that he 
 visited tliem once or twice a week ; that 
 the rattling of copper money was heard 
 whilst he was with them ; that once he 
 was counting something just after he 
 came out ; that on going to the room just 
 after the ajiprehension, he resisted being 
 stopped, and jumped over a wall to 
 escape ; and that there were then found 
 ujion him a bad three-shilling piece, five 
 bad shillings, and five bad sixpences. 
 Upon a case reserved, the judges thought 
 the evidence too slight to convict hhn. 
 Fex V. Isaacs, MS. Bayley, J., a«/';, vol. 
 1, p. 2U8. 
 
 (.') Roberts r. Bethell, 12 C. B. uS. 
 
 (/) ll>id. ; except in case of a bill, 
 wliich constitutes a petitioning creditor's 
 debt in bankruptcy. As to the date of 
 lettei's, see rtx^r, p. 317.
 
 CHAP. I. § 1.] PreMimptive Evidence. 323 
 
 tliough not evidence of the veiy date of the acceptance, is reason- 
 able evidence of the acceptance having taken place within a short 
 time after that day, regai'd being had to the distance the bill 
 wonld have to travel from the one party to the other, {g) 
 
 A very common presumption is made by a jury in favour of a ^j™"^^ g'"'^^ 
 defendant from the goodness of his character; Avhich subject, 
 together with the presumption as to the intent of a prisoner, or 
 his guilty knowledge respecting the act which is the subject of 
 the indictment, raised upon the proof of prior acts unconnected 
 with it, will be considered in a subsequent chapter, where the 
 rule as to evidence being confined to the points in issue is dis- 
 cussed. (/<) 
 
 Most important presumptions are derivable from the conduct of Conduct, 
 the parties, as well in civil as in criminal proceedings. If circum- 
 stances induce a strong suspicion of guilt, and where the accused 
 might, if he were innocent, explain those circumstances con- 
 sistently with his own innocence, and yet docs not offer such 
 explanation, a strong natural presumption arises that he is guilty. 
 And in general, where a party has the means of rebutting and 
 explaining the evidence adduced against him, if it does not tend to 
 the truth, the omission to do so furnishes a forcible inference 
 against him. {i) 
 
 Presumptions from a man's conduct operate in the nature of 
 admissions ; for, as against himself, it is to be presumed that a 
 man's actions and representations correspond with the truth. ( /') 
 And admissions may be presumed, not only from the declarations 
 or acts of a party accused, but even from his acquiescence or 
 silence. (/(") 
 
 Where a person is proved to have suppressed any species of S"j*piessiou of 
 evidence, or to have defaced or destroyed any written instrument, 
 a presumption will arise that, if the truth had appeared, it would 
 have been against his interest, and that his conduct is attributable 
 to his knowledge of this circumstance, il) 
 
 So the fabrication of evidence is calculated to raise a presump- Falsification of 
 tion against the party who has recourse to such a practice, not 
 less than when evidence has been suppressed or withheld. ('/7i) 
 Legal experience, however, has shown tliat false evidence has 
 sometimes been resorted to for proving ft\cts that are true. (•?*) 
 
 {[i) I'cr Manle, J., ibiil. [l) 2 Stark. Kvid. ] 7, -Jl. 
 
 (A) See also as to tlic |)rc.suinplion tliat (/) 1 Pliil. Kvul. 447, citing' Ilanvood 
 a sliip never heard of has IViuiidcrcd. r. (loodright, Co\v[). 87. ] Staik. Evid. 
 Green r. Brown, 2 Str. 11 OS). Twemlow 847. 
 r. Oswin, 2 Caniph. 85. Houstniau v. (m) 1 Stark. Ev. 847. 
 Thornton, Holt, 242. Koster r. Itccd, (*0 1 Phil. Ev. 448. Keferrin^' to3 In- 
 GP). &('. lit. So where a letter, fully slitute, 232, where a case is mentioned of 
 and particularly directed to a persmi at an nncle, who was han^^ed lortlio murder 
 his usual place of residence, is proved to of his niece, and who produced on tho 
 liave been put into the post-oHice, this is trial a child as like unto her, both inper- 
 e([uivalcnt to proof of delivery to the son and years, as he could lind, but whieli 
 liands of that person ; because it is a safe upon examination was found not to bo 
 and reasonable ]iresum])ti()n that it ri'aches the true child ; and it afterwards appeared 
 its destination. Per I^urd 'rciilcnlcn, that the niece had run away, and wa.s 
 "Walter v. Jlayucs, 1 P. & M. N. 1'. C. alive. And al.M> the J)ouj;ias Pecni^o 
 149. case, A]ipendix to Evans' Pothicr. 'Tho 
 
 (0 2 Stark. Evid. G8S. 1 Stark. Evid. fabrication of evidence does not, how- 
 
 862. ever, furnish of itself any i>rcsuniption 
 
 (j) Ibid. Sec Pickard r. Sears, ti A. q/'^ait" against the innocence of tlie jiarty, 
 
 & E. 4t)i\ but is a matter to be dealt with bv the 
 
 evidence.
 
 324 
 
 Of Evidence. 
 
 [book VI. 
 
 ri'r.siilii|itl<i|i 
 conliiiiiaiict'. 
 
 of 
 
 Piirtucrsbii" 
 Attorney. 
 
 Orticers. 
 
 Kegistration. 
 
 Of life and 
 death. 
 
 ()tli« r piosmnjitioiiH arc founded on the experienced continuance 
 tir permanency, of longer or sliorter duration, in l)uinan alliiirs. 
 
 When, therefore, a .state of things, is once established by proof, 
 the law in general ])rcsunies that the state of things continues to 
 exist as before, till the contrary is shown, or till a different 
 presumption is raised from the nature of the subject in ([Ues- 
 tion. (o) 
 
 A partnership or other similar relation, once shown to exist, 
 is presumed to continue till it is proved to have been di.ssolved. (j)) 
 So where an indictment alleged that the defendant made his war- 
 rant of attorney directed to A. and B., 'then and still being 
 attornies of the King's Bench,' it was held that as the defendant, 
 by executing the warrant, admitted them to be attornies at that 
 time, it must be presumed that they continued to be so at the time 
 when the indictment was found, {q) 
 
 So a party once elected to an office must be presumed to con- 
 tinue in it until the contrary be shown. Thus a return made to 
 the stamp-office by a bardcing co-partnership in March 1841, stating 
 a person to be a public officer of the company, being proof that he 
 was an officer at that time, the presumption is that be continued 
 such officer until November 1842. {r) But if the office had been 
 an annual office, it would have been otherwise, (s) 
 
 So where a building is shown to have been properly registered 
 for the celebration of marriages, the presumption is that it con- 
 tinued to be registered, {t) 
 
 In li. V. Lumley, (ii) which was an indictment for bigamy, 
 noticed ante, p. 26G, the Court said, ' The existence of the party at 
 an antecedent period may or may not afford a reasonable inference 
 that he was living at the subsequent date. If, for example, it 
 were proved that he was in good health on the day preceding the 
 second marriage, the inference would be strong, almost in-esistible, 
 that ho Avas living on the latter day, and the jury would in all 
 probability find that he Avas so. If on the other hand, it were 
 proved that he was then in a dying condition and nothing further 
 was proved, they would probably decline to draw that inference. 
 Thus the question is entirely for the jury. The law makes no 
 presumption either way. After the lapse of .seven years, without 
 intelligence concerning a person, his death may be presumed. (>') 
 But there is no legal presumption as to the time of the death 
 within the seven years, and the fact of the party having been alive 
 
 jury. lunoceut i)crsons, under the iu- 
 tluciu'e of tenor from the danger of their 
 situation, have been sometimes led to the 
 .simulation of exculpatory facts.' Greenl. 
 Ev. 43. 
 
 (o) Greenl. Ev. 46, 47, citing Throg- 
 morton r. Walton, 2 Roll. K. 461. Wil- 
 »ow v. Hodges, 2 East, R . 312. Bat tin r. 
 Bigelow, 1 IVt. C. C. E. 452. 
 
 {})) Greenl. Ev. 48. 2 Stark. Ev. 6SS. 
 Alderson r. Clay, 1 Stark. K. 40r>. 
 
 (9) Rex r. Cooke, 7 (.". & P. f.5i>, Tat- 
 teson, J. 
 
 (r) Steward i: Dunn, 12 M. &. W. 
 655. 
 
 (s) Per Parke, P.., ibid. 
 
 (0 Reg. r. ilanvvnring, I). .It D. 132. 
 
 (I'.) Sec Rex V. Twj-ning, 2 B. & Aid. 
 3S6. Rex V. Harborne. 2 A. & E. 540. 
 Upon an issue of the life or death of a 
 party, the jury may find the fact of death 
 from the lap.se of a shorter period than 
 seven yeare, if other ciroum.stances con- 
 cur : as if the party sailed on a voyage, 
 which should long since have been ac- 
 lomplished, and the vessel has not been 
 heard of Greenl. Ev. 47, referring to 
 In /v Hutton, 1 Curt. F>95. 
 
 (r) Hopewell f. De Pinna, 2 Campb. 
 113. Doe fi. George r. Jesson, 6 East 
 K. SO. Doc (!. Lloyd v. Deakin, 4 B. & 
 Aid. 433. Watson r. King, 1 Stark. R. 
 121. It has been held in America not to 
 be neco.<sary that the party be proved to
 
 CHAP. 1. § I.] Presumptive Evidence. 
 
 or dead at any particular period during the seven years must be 
 proved by the party relying on it. {vj) 
 
 So where a thing is proved to have been in a particular state at 
 one time, it is presumed to have been in that state at a former 
 time, unless there be evidence that at some previous time it was in 
 a different state, (y) Where, therefore, in order to prove certain 
 assessments of land-tax, the signatures of certain persons to them 
 were proved, and it Avas shown that those persons had acted as 
 commissioners after the date, of the signatures, but there was no 
 evidence of their having so acted before, it was held that the acting 
 as commissioners within a reasonable time after the date of the 
 signatures was evidence that they were commissioners at that 
 time ; for the inference might be carried upwards as well as down- 
 wards, (z) 
 
 The opinions also of individuals once entertained and expressed, 
 and tlie state of onind, once proved to exist, are presumed to re- 
 main unchanged till the contrary aj)pears. Thus all the members 
 of a Christian community being presumed to entertain the common 
 faith, no man is supposed to disbelieve the existence and moral 
 government of God till it is shown from his own declarations. In 
 like manner, every man is presumed to be of sane mind till the 
 contrary is shown ; but if derangement or imbecility be proved or 
 admitted at any particular period, it is presumed to continue till 
 disproved, (a) 
 
 Besides the presumptions which a jury may make from circum- 
 stantial evidence, there are also presumptions of law. Thus, on 
 every charge of murder, the fact of killing being first proved, the 
 law presumes it to have been founded on malice till the contrary 
 appear; and therefore all circumstances alleged byway of justifica- 
 tion, excuse, or alleviation, must be proved by the prisoner, unless 
 they arise out of the evidence produced against him. (6)' 
 
 Indeed, it is a universal principle, as Lord Elleuborough ob- 
 served in the case of Hex v. Dixon, (c) that when a man is charged 
 with doing an act, of which the probable consccpiences may be 
 highly injurious, the intention is an inference of law resulting from 
 the doing the act. In the case of Rex v. SJteppard, {d) uttering a 
 forged stock receipt to a person who employed the prisoner to bu}- 
 stock to that amount, and advanced the money, was helil sufficient 
 evidence of an intent to defraud that person ; and it was furtlier 
 
 325 
 
 Presumption 
 as to pievious 
 time. 
 
 Oiiinions and 
 state of iiiinil. 
 
 Presumptions 
 of law. 
 
 01 the pro- 
 halile conse- 
 quence of an 
 act. 
 
 Le absent from the United States ; it is 
 siiflicient if it a})pears tliat he lias been 
 ab.sent for seven years from the ]iiirticular 
 State of his residence, without having 
 been heard from, (ireiul. Ev. 47, note i), 
 citing Newman v. .Jenkins, 10 Pick. olij. 
 Innis J/. C'anii)bell, 1 liawle, 373. Si)urrr. 
 Trimble, 1 A. K. .Mar.sh, 278. Wani- 
 bough ^. Skenk, 1 Penningt. 167. AV'oods 
 V. Woods, 2 Hay, 476. 1 New York Pev. 
 Stat. 74!), s. C. 
 
 (w) Doe d. Knight v. Neiiean, 5 B. 
 & Ail. 86. 2 M. & W. 894. 
 
 (U) Pex V. lUirdett, 4 B. & Aid. 124, 
 per Ijest, J. In this case a letter was 
 delivered to a person, unsealed, in Mid- 
 dlesex, and it was held that it must bo 
 jiresumed that it was sent in that state 
 from Leicestershire, there being no evi- 
 
 dence to the contrary. 
 
 (.:) Doc d. Hopley v. Young, 8 Q. 
 1^ 63. Where a demise in ejectment 
 was laid on the 2nd of .May, it was held 
 that the jury might presume from the 
 evidence of there being no sutlicient ilis- 
 tress on the premises some thm in ila}', 
 that there was none in Jlav before tli<' 
 2nd, nor on the Utli of ,Iuni', when the 
 declaration was served. i>oe, lessee of 
 Smelt V. Fuchau, 15 Ka.st, P. 286. 
 
 (rt) CIrcenl. Ev. 48. Attorney-general 
 V. Parnther, 3 Bro. C'h. C. 443. 
 
 {h) Post. 2,55. 1 East, P. C". o. 5, s. 106, 
 p. 340. 
 
 (c) 3M. &S. 15. 
 
 (d) \\. &, P. 169. Jn(e, vol. 2, ji. 
 G79.
 
 32G 
 
 Of Evidence. 
 
 [book vi. 
 
 lirld, that tlic oatli of the person to whom the receipt was uttered, 
 that he helicved the prisoner had no such intent, wouhl not repel 
 the presumption of an intention to defraud. 80 where tlie pri- 
 soner was indicted (under the repealed statute, 43 Cjleo. 3, c. .IH) 
 for st.'ttiii.i^ lire to a mill, with intent to injure the occupiers thereof, 
 it was hehl, tiiat an injury to the luill l)ein<f tlie necessary conse- 
 (|uencc of setting fire to it, the intent to injure might be inferred ; 
 for a man must be supposed to intend the necessary consequence 
 of his own act. (c) So in prosecutions for forgery, a jury ought to 
 infer an intent to defraud the person wlio would liave to pay the 
 instrument if it were genuine, althougl), from the manner of exe- 
 cuting the forgery, or from that person's ordinary caution, it would 
 nut be likely to impose on him, and although the object was general 
 to defraud whoever might take the instrument, and the intention 
 of defrauding in particular the person who would have to pay the 
 instrument, if genuine, did not enter into the prisoner's contem- 
 plation. ( /') 
 
 In the case of Rex v. FvJlcr and another, (g) the twelve judges 
 were of opinion, that the having in possession a large quantity of 
 counterfeit coin unaccounted for, and that without any circum- 
 stance to induce a belief that the defendants were the makers, was 
 evidence of having procured it with intent to utter it. (h) 
 Presumptions It sccms to be a presumption not admitting of proof to the con- 
 witli respect to trary, that a person imder the age of fourteen is unable to commit 
 the crime of rape ; (/) and also that an infant under the age of 
 seven cannot bo guilty of felony ; (j) and it is a _29/'/»ut facie pre- 
 sumption of law that a person under the age of fourteen is not 
 guilty of a felonious intention, until evidence be produced to 
 show that he is doll capax ; for then it is said nuditia supplet 
 catalein. (]c) 
 
 In general, however, a presumption of law arises in favour of in- 
 nocence until the contrary is proved ; (i) and it arises not only in 
 matters essentially criminal, but in every instance the iiile is, that 
 illegality is never to be presumed, but that the presumption always 
 is, that a party complies with the law. {in) So it is a legal maxim, 
 that ' omnia pra'sumuntur esse rite et solemnitev acta donee pro- 
 
 age. 
 
 Presumption 
 of innocence. 
 
 Omnia esse 
 rite acta. 
 
 (c) Eex r. Fanington, K. & ?». 207. 
 Ante, vol. 2, p. 918. 
 
 if) IJex V. Mazagora, 1{. & E. 291. 
 Antr, vol. 2, p. 688. See also Eeg. r. 
 Hill, 2 U. 0. C. E. 30, ante, vol. 2. 
 
 (7) E. & E. 308. Ante, vol. 1, p. 
 225. 
 
 (h) 8ci> fuitlior as to the primary in- 
 ti-iitioii, inoimliiig the collateral one im- 
 ]iuted ill the iiuliftnient, and the necessary 
 proof of the particular intent laid. Ante, 
 vol. 1, p. 925, et seq. 2 Stark. Ev. 
 573. 
 
 ( i) 1 Hale, P. C. 630. Eex v. Grooni- 
 hridge, 7 C. & P. 582. Eex v. Elder- 
 .shaw, 3 C. & P. 396, ante, vol. 1, 
 p. 859. 
 
 U) 1 Hale. P. C. 27, ante, vol. 1, 
 p. 109. 
 
 {k) 1 Pliil. Evid. 443, citing Rex r. 
 Owtu, 4 C. & P. 236. 
 
 (/) See Rex r. Twyuing, 2 B. & A. 386. 
 
 But see Eex r. Ilarborue, ante, p. 324, 
 note (/'). 
 
 (m) Sissons r. Dixon, 5 B. & C. 758. 
 See also Bennett v. Clongh, 1 B. & A. 
 461, which was an action against a carrier 
 for losing a parcel containing some bank 
 notes, stamps, and a letter. For the de- 
 fendant it was said, that the 42 Geo. 3, 
 c. 81, s. 5, made it illegal to send a letter 
 in a parcel, and that the plaintitt" there- 
 fore could not recover. But there is a 
 pro\-iso in that section, that it shall not 
 extend to any letter concerning goods, 
 sent by a common cairier of goods, to be 
 delivered with the goods to which it re- 
 lates ; and tlic Court held, that as ille- 
 gality is never presumed, the defendant 
 .should have given jn-imd facie evidenco 
 that the letter did not concern the stamps 
 with which it was .sent. See also Eodwell 
 f. Eedge, 1 C. & P. 220.
 
 CHAP. I. § II.] Best possible Evidence must he j)roduced. 327 
 
 hetur in contrarium ;' (?i) and, therefore, it is a general presump- 
 tion of law, that a person acting in a public capacity, as a peace 
 officer, justice of the peace, constable, &c., is duly authorized to do 
 so ; (o) and that even in a case of nuirder. ( j>) And this rule of 
 evidence runs through all offices from that of a judge to that of a 
 vestry clerk, (q) 
 
 The general rule applicable to the doctrine of presumption is, wiiat reason- 
 that we are to presume that which reasonably accounts for the ex- -^'jly accounts 
 isting state of things, (.s') Thus the relations of landlord and tenant, [y,j!,s^f to°be 
 of partnership, and of marriage, are frequently presumed from the presumed. 
 conduct of the parties being con.si.stent with that state of things, 
 and more consistent with that state than any other. (/) 
 
 It may be proper here to mention the two well-known cautions Caution of 
 of Lord Hale respecting presumjDtive evidence, viz. 1. That a Lord Hale a.s 
 person should never be convicted for stealing the goods cujusda/ni *? presumij- 
 ignoti, because he cannot give an account of how he came by them, 
 unless there be due proof made that a felony was committed of 
 these goods. 2. That a person should never be convicted of miu'der 
 or manslaughter, unless the fact were proved to lie done, or at least 
 the body found dead, {u) 
 
 Sec. II. 
 
 Tlic best ijossihle Evidence must he frroduced. 
 
 It is a general rule that you must give the best evidence that the (^-'mcral lule 
 nature of the thing is capable of: (v) the true meaning of which t|'=»t Lies* V'os- 
 rule is not that in every matter there must be all that force and inust l^c iw'^" 
 attestation that by any possibility might have been gathered to <luceil. 
 prove it, and that nothing under the highest assurance possible 
 shall be given in evidence, but that no such evidence shall be 
 brought that ex natuvd rei supposes still greater evidence behind 
 in the party's possession or power ; for such evidence is altogether 
 insufficient, and proves nothing, as it carries a presumption with 
 
 (n) As that a marriage was lawfully pciTormed the ceremony was a priest, was 
 
 celebrated. See Keg. v. Manwariiig, D. the fact that he performed it ; and this 
 
 & B. 132, ante, p. 301. was held enough. Sec also Plumer v. 
 
 (o) Eex V. Verelst. 3 Canipl). i?y2. Brisco, 11 Q. K -16. IJunlmry r. 
 
 Gordon's case, 1 Leach, 51 Tk S. C. 1 Jlatthews, 1 C. & K. 380. 
 
 East, P. v. pp. 312, 315. (v) Per I'.ayley, ,1., Kcx r. SI. Mnw- 
 
 ip) By liullcr, J., in P.crryman /•. l.l».nc, 4 1). & K. 475. 
 
 AVise, 4T. li. 3()(i. See also licx r. Pees, {/) Per Krle, J., Peg. r. Fording- 
 
 (j C. & P. GOG. Pcx V. Borrett, 6 ('. & laidge, E. P.. & E. G78, where a witness 
 
 P. 124. liutler v. Ford, 3 Tyrw. 677 ; 1 proved that more than sixty years liefore 
 
 C. M. & P. GG2. Peg.!'. Murphy, 8C, P. he lived witli the .same master as tlie 
 
 297. paufier, and liolieved him to ho an ap- 
 
 (q) Per Pattcson, .T., in Marshall v. prentice, and that he was instructed by a 
 
 Lamb, 5 (,». 15. 115. Uoe d. I'.owley r. Journeyman, and lodged and Iwarded in 
 
 liarnes, 8 Q. B. 1U37. AVolton v. Gavin, the house, with twoother.s, who were in- 
 
 16 Q. B. 48 ; whereasoldier had been en- structcd in the art of a tailor, and, after 
 
 listed more than three weeks, and had ])roof of due .searcli for tin- indentures 
 
 been employed to enlist recruits, and had without success, it was held that this 
 
 done .so, and it was held that it might be state of things could only be accounted 
 
 ]>resumed tliat he had been attested. In for by the existence of au indenture of 
 
 tills case Erie, J., mentioned an anony- apprenticeship, 
 
 mous case where, in supi)ort of a mar- (») 2 Hale, P. C. 290. 
 
 riage, the only proof that the party who (r) Bull, N. P. 293.
 
 328 
 
 <'>!' h'vldence. 
 
 [hook VI. 
 
 1. What is 
 luiinary cvi- 
 iloiioe. 
 
 Contents of 
 will. 
 
 Execution of 
 will proved liy 
 one of three 
 witnesses. 
 
 Primary evi- 
 dence of hand- 
 writing. 
 
 Of disproving 
 handwriting. 
 
 Other in- 
 stances of 
 Jiriiuary evi- 
 dence. 
 
 it coiitniry to tin- ilik'iit,i(;ii fur which it is pi<j(liic(.(l. Fcjt if the 
 nthcr ^Mcatcr (nidciicc did iKjt make against the piirly, why did he 
 not pnxhice it to the Court ? As if a man oiTin- a copy of a deed or 
 will where he ought to produce the original, this carries a presimip- 
 tion with it, thai there is somctliing more in tlio deed or will that 
 makes against the ])arty, or else he would have pro(hiced it ; and, 
 therefore, tlu; proof of a copy in this case is not evidence: (vj) Lut 
 if lie prove the original deed or will in the liands of the adverse 
 ]>arty, or to be destroyed without his default, a copy will be 
 admitted, because then such copy is the best evidence : the pre- 
 sumption of greater evidence behind in the party's possession 
 being overturned by positive proof, (.r) 
 
 Hence it appears that evidence of an inferior quality, or, a.s it is 
 called, secondary evidence, cannot be received until it be shown 
 that no evidence of a superior (piality, or, as it is termed, primary 
 evidence, can be produced. It becomes necessary, therefore, to con- 
 sider, 1st, What is primary evidence. 2ndly, What is a sufficient 
 ground for the admission of secondary evidence. 3rdly, What is 
 good secondary evidence. 
 
 1. What is primary evidence. It has already appeared that it 
 is the quality and not the quantity which the rule re([uiring the 
 best possible evidence regards. Thus, if a will of lands is to be 
 proved, the primary proof of the contents is the will itself; and 
 neither an exemjjlification under the great seal, nor the probate in 
 the spiritual court, will be admissible : (ij) but one of the three 
 subscribing witnesses will be sufficient, without calling the others 
 to prove the execution, if he can speak to all the requisites of 
 attestation, and the jury believe him. (c) So if there are several 
 subscribing witnesses to a deed, and all are proved to be dead, 
 proof of the signature of one will be sufficient ; for the proof is, as 
 far as it goes, complete, and not inferior in its kind to any that can 
 be produced, (a) So for the purpose of proving liandwriting, 
 where it happens to be a case where there would be no olyeetion 
 to the competency of the writer himself, it is not necessary to call 
 him : it is sufficient to pi'ove it by the evidence of some one 
 acquainted with the general character of his writing, who, on in- 
 spection, can say he believes it to be the handwriting of the party. 
 The evidence of such a witness is not in its nature inferior or 
 socondar}" ; and though it may generally be true that the writer 
 is best acquainted with his own handwriting, and, therefore, his 
 evidence will in general be thought the most satisfactory, yet his 
 knowledge is acquired precisely by the same means as the know- 
 ledge of other persons who have been in the habit of seeing him 
 write, (b) And it seems, that on the same principle, the evidence 
 of such persons is as much primar}^ evidence to disprove his hand- 
 writing as to prove it. (c) On an indictment for unlawfully assem- 
 bling, it was held, that a paper which had been delivered by Hunt 
 
 (»•) Ibid. Gilb. Ev. 13. 
 
 {x) Bull. N. P. 293. 
 
 iu) Bull. N. P. 246. But the probate 
 is the best evidence as to pei-sonalty. 
 
 (i) Bull. X. P. 2G4. So the execu- 
 tion of a will has been lield to be proved 
 by evidence of the testimony of one of 
 the subscribing witncs.ses, who was dead. 
 
 given on a trial between the same parties 
 althougli another attesting witness was 
 present and not called. Wright v. Doe 
 </. Tatliam, 1 A. .': K. 3. See also Doe 
 f'. Spilsburv r. P.urdett, 4 A. & E. 1. 
 
 (>x) 1 Phil. Ev. 418. 
 
 (I>) 1 Phil. Ev. 223, 7th edit., 2^'- 
 
 {>■) Post.
 
 CHAP. I. § II.] Best ijossihle Evidence must he produced. 329 
 
 to the witness at a meeting, as a copy of certain resolutions about 
 to be proposed and read, and which corresponded with what the 
 witness heard read from a written paper, was admissible as evi- 
 dence of those resolutions, without crivino^ the defendant notice to 
 
 • I'll 
 
 produce the original, (r/) And in the same case, it was decided 
 that parol evidence of inscriptions, or devices on banners and flags 
 displayed at the meeting, was admissible without producing the 
 Originals, though it appeared that they liad been seized by the 
 police officers, and therefore miglit liave been produced on the part 
 of the prosecution, (e) 
 
 The contents of a written instrument must be proved by the Written iu- 
 instrument itself, unless it be lost, or in the hands of the other ^t-'i'i'iei^-^- 
 party. (/) And, generally speaking, parol evidence is secondary in 
 its nature to written evidence : and where a written instrument is 
 required by law, or made by a private compact to express the inten- 
 tion of the parties, it possesses a force and authority sujDerior to any 
 other evidence, {g) Thus, when an agreement has been reduced into 
 writing, the writing itself must be produced, iji) And although 
 a day-book be the best evidence to prove any matter entered in it, 
 yet it is not necessary to produce it to prove that no entry of a 
 fact was made in it. (i) But, in many instances, the mere ex- 
 istence of written evidence will not exclude independent parol 
 evidence to prove the same fact. Thus, where upon letting pre- 
 mises to a tenant, a memorandum of agreement was drawn up, 
 the terms of which Avere read over and assented to by him, and it 
 was then agreed that he should on a future day bring a surety, 
 and sign the agreement, it was held that the existence of this 
 memorandum did not pi-eclude parol evidence of the terms of the 
 letting, {j) So where a verbal contract is made for the sale of 
 goods, and it is put into writing afterwards by the vendor's agent, 
 for the purpose of assisting his recollection, but not signed by tlie 
 vendor, the terms of the contract may be given in evidence on 
 tlie part of the vendor, without producing the writing. (/.■) Where 
 a party paying money has taken a receipt, the circumstance of 
 a payment having been acknowledged in writing does not make 
 such writing exclusively primary evidence of the fact ; but he 
 may show the payment by a person who saw the money paid, or 
 by the admission of the other party to that effect. (/) If several 
 persons be witnesses of the same fact, and one of them, to assist 
 his memory, makes a memorandum of it, this circumstance would 
 
 Parol evidence 
 not always 
 secondary to 
 written. 
 
 {d) Rext'. Hunt, 3 B. & A. .'^06. 
 
 {c) Ibid. Abbott, ('. .1., said, 'If wc 
 wcYQ to liold that what was inscribed on 
 a banner could not be proved without the 
 ]noductioii of tlie banner, I do not know 
 u|ion wliat reason the witness should lie 
 allowed to mention the coloui- of the 
 lianner, or even to say he saw the banner 
 displayed; for the banner itself niaj' be 
 said to be the best possible evidence of 
 its existence and of its colour.' 
 
 (/) As to statements made by a Jiarty 
 being evidence ap,'ainst him, though they 
 relate to the contents of a written docu- 
 ment, sec^w.s/!, ]). 34!). 
 
 (j/) 1 Stark. Ev. r.rtf. 
 
 (A) Brewer r. rainier, 3 I'^sp. 213, cor. 
 
 Lord I'^ldon, ('. .1. Simlair r. Stevcnsoi), 
 1 V. & l'.jl82, cor. Best, C. J. 
 
 (/) In Macdonnell v. Kvnus, 11 C. H. 
 fK^ii, JIaule, ,1., said 'Su])pose a n»an is 
 asked whether lie nnide an entry in his 
 day-book, and he says No, it cannot be 
 necessary to produ<'0 the book.' 
 
 U) l>tH' r. Cartwight, 3 B. & A. 326. 
 See also Wilson v. Bowie, 1 C. & P. S. 
 
 (/i) Dalison r. Stark. 4 Msi>. 1(53. 
 
 (/) l!;nabert v. Cohen, 4 Esp. 213. 
 .buol) i". Lindsay, 1 East, 1?. 4Gtt. And 
 if the receipt were on unstamped paper, 
 it may be used liy a witness, who saw it 
 given, to refresh his memorv, 4 Esp. 
 213.
 
 'XM) 
 
 Of J'Jri<h'}inr. 
 
 [book VI. 
 
 Instances of 
 what is not tlie 
 best possible 
 evidence. 
 
 Iiisiuancc. 
 
 Mattel's of 
 record. 
 
 Acts of a 
 court. 
 
 of the otlior witnesses, (m) Sopnrol 
 
 said on the hearing of an inforrna- 
 
 of game, under the I & 2 Will. 4, 
 
 n there be a deposition wliich is not 
 
 not exclude the testimony 
 evidence of what a person 
 tion for a trespass in pursuit 
 c. 32, is admissible, althouj ' 
 
 produced, as there is no Act of Parliament re(|uiring tlic magis- 
 trates to take down the evidence in such a case ; l^it it is other- 
 wise in the case of felony, wlierc the depositions must Ijc produced^ 
 because, by statute, magistrates are bound to take down what 
 the witnesses say. (oi) So where the defciulant made a cliargo 
 against the })1aiutitf before a magistrate, and what he said was 
 taken down by the clerk, but not signed cither by the defendant 
 or the magistrate, and the ca.se was sul)sequently lieard and depo- 
 sitions taken ; CVesswell, J., held that parol evidence was admis- 
 sible of what was said on the first examination, (o) So, though an 
 entry of a marriage may have been made in tlic parish register 
 according to the Marriage Act, such entry does not become the 
 only primary evidence of the marriage, but it may also be proved 
 by any one who witnessed it ; and, indeed, in all cases except 
 indictments for bigamy, by reputation, {p) Where, in order to 
 prove a demand for the purpose of bringing an action of trover 
 for a lease, a witness stated that he had verbally recpiired the 
 defendant to deliver up the lease, and at the same time served 
 a notice in writing on him to the same effect ; Lord Ellenborougli, 
 C. J., held that the written notice need not be produced ; for the 
 notices being concurrent and independent, either might be proved 
 as evidence of the conversion, (q) 
 
 Tlie above are in.stanccs of modes of proof wliich, notwithstand- 
 ing the existence of other evidence which might be more satisfiic- 
 tory, are yet in their nature primary, and consequently available 
 It may be useful to mention also some examples of what is not 
 the best possible evidence, and therefore inadmissible. Upon an 
 indictment for having set fire to a house, with intent to defraud 
 an insurance company, the policy is the best evidence to prove 
 that the house w^as insured, and an entry to that effect in the 
 books of the insurance office is but secondary evidence, (r) To 
 prove the oaths required by the Toleration Act, parol evidence 
 was held secondary, and inadmissible ; because they were matters 
 of record in the court where they were sworn, (s) It has been ruled 
 that parol evidence is inadmissible to show the day on which a 
 trial at nisi prius took place ; for it should be proved by the pro- 
 duction of the nisi prius record, [t] But this position may well be 
 
 (m) 1 Stark. Ev. 504. So in Layer'.s 
 ca.se for high treason, ^Mr. Stanley, an 
 nnder-secretary of state, gave evidence of 
 L.'s confessions, upon his examination 
 before the council, which, though taken 
 in writing, was not produced. 12 Yin. 
 Abr. 9G, tit. Evidence, A. h. 6-2:1 pi. 7. 
 
 (ii) Robinson r. Yaughton, 8 C. & P. 
 252, Alderson, B. 
 
 (o) Jeans r. "\Ylieedon, 2 M. & l^ob. 
 486. 
 
 (,A Morris r. Miller, nV. 151. 032. It 
 may also be obst-rvcd that, in order to 
 make the production of the writing ne- 
 cessary, it must appear to relate to the 
 matter iu iiuestion. Thus where parol 
 
 evidence is olfercdto prove a tenancy, it 
 is not a valid objection, that there is some 
 written agreement relative to the holding, 
 unless it should also appear that it was 
 made between the parties as landlord and 
 tenant, and that it continues in force to 
 the very time to which the parol evidence 
 ajiplies. Doe v. ^Moms, 12 East, 237. 
 Doe V. Pearson, 12 East, 239 n. 
 
 (q) Smith r. Young, 1 Campb. 439. 
 
 (/•) Pex i: Doran, 1 Esp. 127. Kex v. 
 Ciison. K. & H. 138. 
 
 (s) Rexr. I lube, Peakc, N. P. C. 132. 
 
 (t) Thomas v. Anslcy, 6 Esp. SO, by 
 Lord EUenborough. Rex r. Page, 6 
 Esp. S3, by Lord'Kenyou. Tidd. Prac.
 
 CHAP. I. § II.] Best ijossihle Evidence must he produced. 331 
 
 doubted, for the assizes and sittings at uisi prius often continue 
 more than a day, and though the record might simply name the 
 first day, yet a court for the purpose of doing substantial justice 
 would allow it to be proved that a trial in fact took place on a 
 different day. Where, therefore, a commission day was on the 
 19th of March, and an assignment of goods was made by a pri- 
 soner on the 20th, and he was convicted of felony on the 22nd, it 
 was hold that it might be proved that in fact the conviction took 
 place on the 22nd, although the record stated the assizes to have 
 been holden on the 19th. {u) If it be necessary to prove that a 
 trial took place, as in the case of a prosecution for perjury committed 
 on the trial of a cause at nisi prius, that cannot l)c done by parol 
 evidence, but the record should be produced, or at least the 
 j)ostea. (y) And even where the transactions of courts which are 
 not technically speaking of record, are to be proved, if such courts 
 preserve written memorials of their proceedings, those memorials 
 are the only authentic means of proof which the law recognizes, {w) 
 On an indictment on the 8 & 9 Will. 3, c. 26 (for high treason by Commencc- 
 having a mint die in possession), it was incumbent on the prose- meut of pro- 
 cutor to show that the prosecution was commenced within three ^'^^^^ ^°"' 
 months, and parol evidence that the prisoner was apprehended for 
 treason respecting the coin within three months (the offence ap- 
 pearing to have been committed above three months before the 
 indictment preferred), was held by the twelve judges to be insuffi- 
 cient, the warrant to apprehend or to commit not being pro- 
 duced. («) In the case of W'dliainsv. The East Ind la Comjxiny, {y) Negative 
 the question was, whether the agent of the defendants, who were 1^'°°^ ^^ "°- 
 the freighters of the plaintiff's ship, had aj^priscd the plaintiff or *''^*^' 
 his officers of the inflammable and dangerous nature of a quantity 
 of roglian which had been stored in the ship, and which ultimately 
 occasioned its destruction. It was the duty of the conductor of 
 military stores to convey goods on board the ship, and of the chief 
 mate to receive them ; the chief mate was dead, and no evidence 
 was given of what had passed between him and the conductor of 
 the stores ; but the captain and second mate proved that no com- 
 munication had been made to them. Upon this evidence, the 
 plaintiff who, it was held, was bound to prove the negative, was 
 nonsuited by Lord Ellonborough, C J., on tlie ground that the best 
 evidence possil^le of tlie want of notice liad not been produced, 
 viz., the evidence of the conductor of .stores. The Court afterwards 
 affirmed the nonsuit ; and Lord EUenborougli, in delivering their 
 opinion, said, ' The best evidence should have been given of which 
 the nature of the case was capable. The best evidence was to 
 have been had by calling, in the first instance, upon the per.sons 
 immediately and officially employed in the delivering, and in the 
 receiving of the goods on board, who appear in this case to have 
 been the first mate on the one side, and the military conductor, 
 the defendant's officer, on the other ; and though the one of these 
 persons, the mate, was dead, that did not warrant the plaintilT 
 
 8C9. But see Kex v. C'oppard, ante, lands, 1 F. & F. 72. 
 
 p. 37. {•«•) Kex V. I'hillips, R. & R. 309. See 
 
 («) Whitakcr v. Wisbey, 12 C. P.. 4L vol. 1, p. 620. 
 
 {v) Ante, p. 89. (//) 3 East, R. 192. 
 
 (w) 3 Stark. Ev. 786. Seo R. v. Row-
 
 Hcnt. 
 
 332 Of Evidence. [i'.ook vt. 
 
 ill resort iii<; to an inferior and socoiKlary s}>ecic.s of testimony 
 (namely, the ])resiimi)tion and inference arising from a non-C(jm- 
 muniealion t<> I In' otli<'r jx^rsons on hoard), as lonff as the military 
 eoiuhictor, lii'- otinr liviiiLf witness, immediately and primarily 
 concerned in the transaetion of shi))ping the goods on board 
 could 1)C resorted to ; and no impossihility of resorting to this evi- 
 deiici', the ]>ropcr and primary evidence on the subject, is suggested 
 Np;,'ativo to exist in this case.' In a case on an indictment on the 4:i Geo. 3, 
 
 iinu.f of con- (. ]^()7^ 55 \ wliicli made it felony to course a deer in an enclosed 
 oround, without the consent of the owner of the deer ; Lawrence, J., 
 thought it necessary to call the owner of the deer, for the purpose 
 of disproving his consent, and the owner not being called, the 
 jury were directed to find a verdict of acquittal, {z) But this 
 decision has been overruled by subsequent authorities of the 
 greatest weight : and the rule may now be considered settled 
 that, in cases where it is necessary to prove the non-consent of the 
 owner of the property which is the subject of the charge in the 
 indictment, the testimony of the owner himself is not exclusively 
 primary evidence of the non-consent ; but it may be inferred from 
 the conduct of the prisoner, and the circumstances under which 
 the act was done. Where the prisoners were indicted on the 
 (i Geo. 3, c. 3(), for lop[)ing and topping an asli timber-tree, ' with- 
 out the consent of the owner,' the owner. Sir J. Aubrey, had died 
 before the trial. The ofience was committed at eleven o'clock at 
 night on the 18th of February. Sir J. Aubrey died on the 1st 
 of Afarch following, having given orders for apprehending the 
 prisoners on suspicion. The land steward was called to prove, 
 that ho himself never gave any consent, and from all he had heard 
 his master say, he believed that he never did. Bayley, J., told 
 the jury that they must be perfectly satisfied that the prisoners had 
 not obtained the consent of the owner of the tree, namely, Sir J. 
 Aubrey, that they might lop and top it ; and left it to them to sny, 
 whether they thought there was reasonable evidence to show that 
 in fact he had not given any such permission. His lordship ad- 
 verted to the time of night wdien the offence was committed, and 
 to the circumstance of the prisoners' running away when detected, 
 as evidence to show that the consent required had not in foct been 
 given, {a) And in three cases, reserved at once for the opinion 
 of the tw^elve judges, it was held that, though there must be some 
 evidence to negative the owner's consent, his non-consent might 
 be inferred from the circumstances, or proved by his agents. 
 The first of the three cases Avas Rax v. Allen, an indictment for 
 killing a fallow^ deer in the park of the forest of Waltham, without 
 the consent of the owner, the King ; the second. Rex v. Artjent, 
 for entering a yard adjoining and belonging to the dwelling-house 
 of J. Greenwood, a Quaker, and taking fish out of a pond there 
 without the consent of the owner ; and the third. Rex v. Chamber- 
 lain, for taking fish in Claremont Park, belonging to Prince 
 Leopold, without his consent. The offence in each case was com- 
 mitted under circumstances which the learned judge, who tried it, 
 thought quite sufficient to Avarraut the jury in finding the non- 
 consent of the owner, admitting the onus of proving such non- 
 
 (c> Box V. Rogers, 2 Campb. 654. See 136. 
 Tolomau r. roitbury, 30 L. J. Q. B. (a) Eex v. Hazy, 2 C. & T. 458.
 
 CHAP. I. § II.] Best possible Evidence must he lyroducecl. 
 
 consent to lie on the prosecutor ; but in consequence of the 
 decision in Rex v. Rogers, above mentioned, further evidence was 
 gone into, by calling the persons engaged in the management of 
 the property, but not the owners. The judges held the conviction 
 in each of the cases right, {h) 
 
 2ndly. What is a sufficient ground for the admission of secondary 
 evidence. If the primary evidence be lost or destroyed, or it 
 cannot be produced, or if it be in the hands of the adverse party, 
 then upon proof of the loss or destruction, or that it cannot be 
 produced in the former cases, or of the fact of its being in sucli 
 possession, and of reasonable notice to produce it at the trial 
 having been given to the other party, in the latter case, secondary 
 evidence is admissible, (c) Where secondary evidence is offered, 
 in consequence of the loss of the primary evidence, in order to 
 establish such loss it must be proved that diligent search has 
 been made in those quarters from which the primary evidence was 
 likely to be procured. The evidence of a document being lost 
 may vary much, according to the nature of the paper itself, the 
 custody it is in, and all the surrounding circumstances. A paper 
 of considerable importance, which is not likely to be permitted to 
 perish, may call for a much more minute and accurate search than 
 that which may be considered as waste paper, which nobody would 
 take care of. {d) In the case of Kensington v. Inglis (e) it was 
 incumbent on the plaintiff to prove the loss of a license to trade ; 
 and a witness, who had been secretary to the governor of a colony, 
 said it was his practice to destroy or put aside such licenses 
 among the waste papers of his office, as not being of further use, 
 and he supposed he had disposed of the license in question 
 (which, after having been granted by the governor, was returned 
 to the witness), in the same manner as other licenses for ships 
 whose voyages had been performed ; but he was not sure it was 
 destroyed. He further stated, that he had been applied to for the 
 license, and had searched for it ; but he did not recollect whether 
 he found it or not ; thougli he did not think that he had found it. 
 
 333 
 
 2. What is 
 sufficient 
 ground for tlic 
 admission of 
 secondary, 
 evidence. 
 
 Where the 
 juiuiary evi- 
 dence is lost. 
 
 "What is suffi- 
 cient proof of 
 loss. 
 
 (b) II. & M. C. V. i;. 1.54. 
 
 ((•) besides tlicsfi two instances of the 
 loss or destruction of the primnry evi- 
 dences, and its being in tlic hands of Ihc 
 adverse party, it sliould seem tliat se- 
 condary evidence is admissible in all 
 cases where it is a]>parent that such 
 secondary evidence is the best, which the 
 party without any dclaidt, lias it in his 
 ])ower to produce ; I'nr then the presuni))- 
 tion of a fraudulent suppi'ession (if the 
 better evidence, which is the foundation 
 of the rule, must cease. Thus, if an at- 
 testing witness to a written instrument 
 after his attestation became inconqietent 
 irom interest, proof of his handwriting 
 was admissible. Ciodfrey v. Norris, 
 1 Str. ?>i. So if he became incompetent 
 from infamy, Jones i: Mason. 2 Stra. 
 833. The defendant, in an action of 
 trespass for bicaking hatches, oli'ercd in 
 evidence articles of agreement, dated in 
 1745, between persons standing in llie 
 respective situations of the plaintilland 
 defendant. To produce this deed tin' 
 defendant's attorney was called, who said 
 
 he liad received it from the sou of the 
 owner of the defendant's land. This 
 evidence was objected to as insufficient : 
 then the son of the owner was called, 
 who said he had received it from his 
 father that morning; this being also ob- 
 jected to, the father was called ; u]>on 
 which the plaintiff examined liim upon 
 the vuiir, ilirc, and objectedthat he could 
 not be a witness, bein,^' interested ; wherc- 
 ui>on ilolroyd, .1., held, that as the- father 
 was objected to, the next best evidence 
 had been given, and adnuttcd the deed. 
 Card 1'. Jeans, Manning' .s Dig. 375. If 
 a deed be in the possession of a third 
 person, who is not by law compellable to 
 produce it, and lui refuses (o do so, se- 
 condary evidence is adniissiblc, for the 
 original is then unattainable i>y the]iarty 
 oll'ering such eviilcnce. Doe r. Ko.ss, 7 
 ]\1. & W. 102, Kewton v. Chaplin, 10 
 C. 1'.. 35(5. 
 
 {>') IVr Pollock, C. r.. Guthcrcole v. 
 Miall, 15 M. & W. 3U>. 
 
 ('•) 8 East, 273.
 
 334 Of Evldenci'. [ iujok vi. 
 
 JjiJid JUl(jiil)orouj,4i, C. J., in dcliveriii^f tlic jiidf^nieiit of tlic 
 C'oiirt, ( /") said, ' We arc of oj)inioii, that this evidoiK^c; satisficH 
 what the law riMHiii cs in rcKpcct of search ; and establishes with 
 reasonable cerliiinly the fact of the license being lost. It was not 
 to be expeck'd tlial I lie Avitncss shonld bo able to speak with more 
 confident certainty t«) a fact, to which his attention would not be 
 particularly drawn at the time, on account of any importance 
 The search Ix'ing" sup])osed to belong to it.' In the preceding case the search 
 need not lie \v;i,,. ueither recent nor made for the purpose of the cause (()) ; and 
 ilTc^^pun'oscof •^ '''^■'* since been held that neither was necessary. Where, therefore, 
 tho cause. a search liad been made nearly three years before the action was 
 
 brought, but it did not ap})ear for what purpose, it was held 
 sufficient, {k) 
 UselcsH ilocn- Where it became necessary to account for the Jion-production of 
 
 "'«'"♦•''• a policy, and it was proved that it had been effected about seven 
 
 years before, and having become useless on account of a second 
 policy being effected, it had probably been returned to the plain- 
 tiff; and the clerk of the plaintiff's attorney proved that, a few days 
 before the trial of the action, lie had searched for it in the plain- 
 tiff's house, not only in every place pointed out by the plaintiflP, 
 but in every place which he thought likely to contain a paper of 
 this description ; it Avas held that this was sufficient evidence to 
 entitle the plaintiff to give secondary evidence of the contents of 
 the policy. In this case, Abbott, C. J., observed, that where the 
 loss or destruction of an instrument may almost be presumed, very 
 slight evidence of its loss or destruction will be sufficient, (i) If 
 a person proved that he had searched for an envelope among his 
 papers, and could not find it, that would be sufficient. 80 with re- 
 spect to an old newspaper, which had been at a public coffee-room ; 
 if the party who kept the coffee-room had searched for it there, 
 w here it ought to be if in existence, and where naturally he would 
 find it, and said he supposed some one had taken it away, that 
 would be sufficient. {]) 
 Documents in Where a duplicate adjudication of bankruptcy was left at the 
 baukrupU-y. countiug-liouse, being the usual and last-known place of business 
 of the bankrupts, on the 21st of June, and the place then locked 
 up on behalf of the assignees, and the paper Avas seen there a fort- 
 night or three weeks afterwards, and on the 2(jth of July tl»e 
 summons to appear was left in the same counting-house, which was 
 unlocked for the purpose, and then locked up again, and before the 
 trial the counting-house was searched, and neither of these papers 
 could be found, and due notice to produce them had been given, it 
 
 (/) 8 East, 289. JOO. I?cx r. East Farleigh, 6 D. & W. 
 
 (if) As tlic witness made the senrcli in 1 17. IJex v. .Stourbridge, S 1>. & C. i>6. 
 
 thcBahaiuas, but leftthem in April, ISOl, Panloe r. I'lioo, 13 M. & W. 267. 
 the search must have been before that {j) Per Akierson, B., Gathercok» i\ 
 
 time; the decision was in 1S07. Miall, I.t II. & "\V. 310. In Reg. r. 
 
 {h) Fitz r. Kabbits, 2 .M. .<c IJob. tW. Kastrick, 2 Cox, C. C. 30, Piatt. B., held 
 
 Patteson, J. that a label stating the amount of money 
 
 {i) Brewster t). Sewell, 3 B. & A. 2i.H5. in a iiarcel had not been sufficiently 
 
 Freeman v. Arkell, 2 B. J!c (.'. 404, ]5ay- searched for, as the search had been only 
 
 ley, J. And for further examjilcs of made at the owner's house, and not at his 
 
 sutlicieut scan hes, see Kex v. North shop, and he could not say whether he 
 
 Bedbuni, C'ald. 452. Kex r. Johnson, saw the label last at his shop or at hi^5 
 
 7 Kast, 65. Bex v. Morton, 4 M. & S. house, though he had taken the panel. 
 
 48. IMigh V, Wellesley, 2 Can-. & P. as usual, to his house.
 
 CHAP. I. § II.] Best possible Evidence must he produced. 335 
 
 was held that the search was sufficient. The presumptiou was 
 either that the bankrupts had got them, or that they had got into 
 the hands of some person to whom they were of no importance, 
 who had destroyed them, {h) 
 
 Where a tithing-man went to a house to execute a warrant, and Loss of a war- 
 read the warrant under the window of the house, where the party |"''^°Y° aiipre- 
 who was to be apprehended under the warrant then was, and an 
 affray then took place between the tithing-man and the inhabit- 
 ants of the house, during which the titliing-mau stated that he lost 
 it ; that he had it in his hand when he read it under the Avindow ; 
 and that he never saw it afterwards ; that he searched his pocket 
 for it after he had gone about a mile and a half from the house, 
 and could not find it ; and that he directed a boy to look carefully 
 for it, on the road between the house and the place where he first 
 missed it ; and the boy swore that he had made careful search, and 
 could not find it ; it was held, on a case reserved, that secondary 
 evidence of the warrant was properly received, although notice had 
 not been given to the prisoner to produce it. {I) 
 
 But if it be j^roposed to give secondary evidence of a written What is not 
 instrument, and such instrument is traced into the possession of a sufficient proof 
 particular person, the loss cannot be established without calliDg 
 him as a witness ; for it will not be enough to prove that he was 
 applied to for the instrument, and upon such application said that 
 he could not find the same, nor did he know where it was. Thus, 
 where it was proved that an indenture of apprenticeship was of 
 two parts, that one had been destroyed, and that the other hail 
 come to the hands of a Miss Taylor, who when asked ior it said she 
 could not find it ; but she Avas not subpoenaed ; this was held in- 
 sufficient evidence of the loss. (})i) So where an agreement for 
 
 ijc) Keg. V. Gordon, Dears. C C. 586. apprenticeship, and liad worn them in 
 {I) Eex V. Hood, R. & M. C. C. K. 'J81. his pocket till they were all to pieces; and 
 [m) Kex V. Castleton, 6 T. R. 236. it was held that evidence of this conver- 
 ftee also "Williams r. Younghusband, 1 sation was inadmissible, there being no 
 Stark. R. 139, and I'arkins v. Cobbett, further proof either of the indentun- 
 1 C. &; P. 282. In liex v. Dcnio, 7 15. & having been in the possession of tlio 
 C. 620, the pauper, who had served as an apprentice, or of other inquiry after it. 
 apprentice, proved that the indenture was ]3ut where, in order to establish a settle- 
 kept by his master, and when the ap- ment l)y apprenticeship, it was proved 
 ])renticeship expiied, he asked his master that the indenture was oidy of one part, 
 for the indenture, who said he had not and that upon a])plication to the pauper, 
 got it, Init that it was with the overseer who was then ill, and died soon afler- 
 of the parish by which the pauper was wards, to know what had become of it, 
 bound apprentice, and proof was given of he declared that when tiie indenture ex- 
 scarch among the papers of the parish pired it was given to him, and he liad 
 for the indenture, and that it could not burnt it long since ; and it was also 
 be found ; and that all the books and proved, that inquiry was made of the 
 papers al)out that date were ndssing ; and executrix of the master, wlio said tliat 
 it was h<dd, that as the master was living, she knew nothing .ibout it ; it was lield 
 and might have bi'cn called as a witness, that this proof w:is sudicient to let in 
 and his declarations weie clearly not parol evidence of the eontents of the in- 
 admissild(> in evidence, there was not denture. Rex v. Morton, 4 M. & S. 48. 
 sufficient evidence to show that a due The Court distinguislied this c;iso from 
 search had been made so as to let in Rex v. ('astlcton, inasmuch as there was 
 jiarol evidence of the indenture. In no ])roof that the indenture ever existed 
 Rex V. Rawden, 2 A. & K. 156, the in the possivssion of the pau[ier, uule.ss 
 widow of an apjircntice stated that, a his declaration were taken as evid«fnce ; 
 short time before her husband died, she and if it was, in the same breath lie 
 asked him what had become of his indcn- deilared it no longer existed ; whereas 
 tures, and he said that he had got tliem the evidence in i>*ex r. Castleton .showed 
 away from his master after the end of his that a further seardi was nece.ssjuy. An
 
 :33G 
 
 Of Evidence. 
 
 [iJOOK VI. 
 
 Scarcli slioiiM 
 lie with the 
 ln'ison \\\w 
 lia.s tlic legal 
 custody. 
 
 Wlierc two 
 parts liavc 
 been executed. 
 
 What is due 
 Beaicb. 
 
 rtiitiii;; u (cnciiu'iit had reiiKiiiicd with thu l.'iii(ll(»rd, juid he, being 
 tusked hv !i wiliiess whelhi-r there was any siieli agreement, said, 
 '1 caniiot .say lui- accrlainty ; I will searcli ; ' and tohl hi.s clerk 
 to .seaivh, which he and the witne.ss did arnong.st tlie papers of the 
 elliee, and cDnld find no agreement ; but the landlord was not ex- 
 amined ; it was held tliat enough did not appear to show that the 
 .sessions were wrong in holding that the .search was insufficient. It 
 miL;lit be that the landlord's hou.se was the proper place of depo.sit, 
 and it had not been searched. If there had been proof almnde 
 that the office was the proper place of deposit, the searcli would 
 have been sufficient, though the landlord was not examined, (n) 
 The same principle applies with respect to the person who has the 
 le<'al cu.stody of an instrument ; if it is propo.'-ed to establish its 
 loss for the purpose of giving secondary evidence of its contents, 
 the person who has the legal custody of it should be called as a 
 witness, or steps should be taken to make evidence of his conduct 
 admissible, (o) So where there are two trustees of a settlement, a 
 search for it by one of them is insufficient, {j)) And wliere the 
 instrument in question is the appointment to an office, the legal 
 custody is in the officer, who is the person most interested in the 
 instrument, and who requires its production as a sanction for those 
 acts which he may be called upon to do under its authority, (q) If 
 the individual to whose pos.session the in.strument is traced be 
 dead, an inquiry should be made of his executors, or such persons 
 as must be presumed to have it in their possession. (/■) But if the 
 papers of the deceased were searched during his lifetime, it is un- 
 necessary to apply to the executors or other persons to whose pos- 
 session such papers may have come, (s) If two or more parts of a 
 deed have been executed, the loss or destruction of all the parts 
 must be proved, in order to lay a gTound for admitting secondary 
 evidence of its contents. (0 
 
 The Court must be sati-sficd that due diligence has been used to 
 find the document in question ; but it is not necessary to negative 
 every possibility ; it is enough to negative every reasonable proba- 
 
 iiuloiitine of api.renticeship may be iise- 
 h\\ aftfi- tlie a]iprenticc'sliip has expired, 
 to entitle tlie jmity to tlie freedom of a 
 corporation, or to exercise a trade, or it 
 may I'c evidence of Lis scttkimnt. Ter 
 j\l)bott, C. J., lirevstcr v. Sewell, 31'.. k 
 A 296. And there is no reason uhy the 
 ina.sTcr' should keep it after the appren- 
 ticeship is over, per C'ronipton, J., IJcg. r. 
 Hinkh>y, 3 B. &S. 885. The reasonable 
 presumption, therefore, is that it would 
 l.e in the custody of the apprentice ; and 
 it has been heUi that a search among his 
 papers after his death was sufficient, 
 without any search elsewhere. Keg. r. 
 Hinkley, i.viwo. But as an expired in- 
 denture sometimes remains with tlie 
 master, per Maule. J., Hall r. Ball, 3 
 1^1. & t:i. -242, it would always be .safer 
 to search the master's papers also. 
 
 («) Keg. r. Sallron Hill, 1 E. & B.. 1^3. 
 
 (o) Bex r. Stoke Golding, 1 B. & A. 
 
 173. , ,, ,, 
 
 (l>\ Doc (/. Bii hards c. I.cwis, 11 C. 
 
 ]). 103''. 
 
 (q) Eex r. Stoke Golding, siq>ra. Tlie 
 laM- presumes the appointment of over- 
 seers to be in the custody of some of the 
 overseers, ]ier Holroyd, .T., ibid. 
 
 (/) 1 Bhil. Ev. 456, 7th edit. 
 
 {s) Bex r. Biddhhinten, 3 B. & Ad. 
 4(10. llie master of an ajipiciitice took 
 away the indenture after it was executed, 
 and failed in business after the apprentice 
 had served about a year. I'pon the 
 failure, an attorney had the custody of 
 all the papei's and books of the master, 
 and looked over them after the failure, 
 and did not find any indenture, and it 
 was held that this was sufficient to allow 
 the admission of secondary evidence, 
 tlioiigh the master's widow was living, 
 and no inquiry liad been made of her ; 
 for after the evidence of the attorney it 
 v\ as useless to inquire as to her possession 
 of the indenture. 
 
 (0 Bull. N. B. 254. Doxonf. Haigh, 
 1 Y.i\\ 400. Alivon c. Fiuuival, 4 Tvr. 
 751.
 
 CHAP. I. § II.] Best possible Evidence must he produced. 
 
 bility uf anything being kept l)ack. Where an officer or an attorney 
 is applied to for the inspection of documents, the Court will assume, 
 until the contrary appears, that the officer or attorney produces all 
 the documents relating to the subject, {u) The search should be 
 such as to induce the Court to come to the conclusion that there is 
 no reason to suppose that the omission to produce the document 
 itself arose from any desire to keep it back, and that there has 
 been no reasonable opportunity of producing it which has been 
 omitted, and the proper limit of the search is where a reasonable 
 person would be satisfied that the party had hand fide endeavoured 
 to produce the document itself, (v) 
 
 Whether there has been due search is a question to be deter- 
 mined by the Court ; and any questions may be put for the purpose 
 of showing that there has been a reasonable and hond fi.de search, 
 though the answers to them may not be evidence in the ultimate 
 question before the Court, (w) Therefore witnesses may prove 
 what inquiries they have made of persons, who are likely to have 
 a document in their possession, and what answers they received 
 from them, though the}^ are not called as witnesses. (,r) 
 
 If in point of law you cannot compel a party who has the custody 
 of a document to produce it, there is the same reason for admitting 
 other evidence of its contents as if its production were physically 
 impossible, {y) Where, therefore, a witness proved that he had 
 seen the signature of a person in a parish register, it was held that 
 the witness might prove wliose signature it w^as, although the 
 register was not produced ; for the person who had the custody of 
 the register was not by law compellable to jDroduce it, aud, there- 
 fore, the identity of the party might be proved by showing that the 
 signature was in his handwriting, (c) 
 
 And this rule will apply to documents in the possession of per- 
 sons abroad, for their production cannot be enforced ; still it seems 
 that reasonable endeavours should be made to produce them. 
 
 Where a witness proved that, on his arrival at New York, the 
 custom-house authorities took possession of all his papers, luider a 
 suspicion that he was the bearer of secessionist despatches, but 
 ultimately all the papers were returned to him, except an agreo- 
 
 337 
 
 Questions 
 ;isked of per- 
 Kons likely to 
 Lave a docu- 
 ment and 
 their answers 
 are admissible. 
 
 Wberc the 
 production of 
 a document 
 cannot he en- 
 forced, secon- 
 dary evidence 
 of its contents 
 is admissible. 
 
 Pocuniints 
 abroad. 
 
 An agreemmt 
 in America. 
 
 (u) i\r(!aliey v. Alston, 2 l\. & ^V. 
 20t). In this case a checiuc, which had 
 been drawn on tlie account of a ]iarish, 
 had been delivered to the paying clcvk of 
 tlic ]iarisli, and the bankers of the, parish, 
 on the same day, i)aid a clu'([UC of the 
 same amount, and their custom Mas to 
 I'eturn the chciiucs when paid to the 
 paying ch'rk. The cancelled chci[ues 
 were kept in a room in the workhon.^e, 
 used by the paying clerk as an ollice for 
 that purpose, and application was made 
 to the succeeding ]>aying clerk for an in- 
 s))cction of the cliequcs he had in his 
 ollice, and the ]iaying clerk handed to 
 the witness several bundles, which the 
 witness looked through without finding 
 the cheque in (piestion, but looked at no 
 other. The ]iaying clerk Mas not called, 
 and it Avas held that this was such reason- 
 able search for the chcciue as to render 
 parol evidence of it admissible. 
 
 VOL. IIT. 
 
 (?-) Per Aldeison, V>. (!athori(de c. 
 Jliall, 35 M. & W. :!19. Cilv of ]5ristol 
 V. AVait, 6 ('. & P. r.itl. 
 
 {lo) Per Lord Campbell, t'. J. Peg. c. 
 P.raintree, 1 K. & E. f)!. 
 
 (.i) IJeg. r. Ih'aintree, sii/nri. See 
 Keg. V. Kenilworth, 7 ()■ 13. (512, where 
 Coleridge, .1., .saiil, 'The ]ireliminary 
 prcof is given to enable a judicial tribunal 
 to determine whether secondary eviih'nce 
 can be submitted to them. In such a 
 case a looser rule of evidence may prevail. 
 The sessions were to make up their 
 minds, not whether the docunu'ut was 
 destroyed or not, but whether there had 
 been a liohd Julc search, and not mere 
 carelessness and neglect, or fraud, in not 
 producing it.' 
 
 ij) I'cr Tollork, C. 15. .'^aycr r. Clos- 
 sop, 2 E.xch. K. 401>, 
 
 (~) Sayer v. GIossop, supra.
 
 J;J8 
 
 ( tf Evidence. 
 
 [book vr. 
 
 Luttcr ill 
 Imuulc. 
 
 Disobedience 
 to a siilipa'iKi 
 duces tecum. 
 
 Ill i>cijiiry. 
 
 'J. Where tlic 
 ]iriiiiary evi- 
 dence is in liie 
 ]>osses.siou of 
 the other 
 party. 
 
 iiicui wliicli it waK .sii,i,%'C.st<>(l IkkI rcronjiico to the su))))Iy of" goods 
 for the confederates in America, and tlic witness liad made re- 
 peated applications at New York for the agreement, but was told 
 that it had been sent to Washington, and ho had made no inquiry 
 for it at that place ; it was held that reasonable efforts had been 
 made to procure tlic original, and tliat secondary evidence was 
 properly received, (c) 
 
 Where a Roman Catholic ])ri(.'st, shortly before a trial, went to 
 Paris, and there saw in the possession of the Abbd Cognat a letter, 
 in the handwriting of the defendant, and he asked the Abbe to let 
 him have the letter in order to bring it to England, but the Abbo 
 refused ; it was held that the evidence given for the purpose of 
 letting in secondary evidence was insufficient. It was nothing 
 more than proof of a mere demand of the document apparently 
 made by a stranger, wlio did not even di.sclosc his purpose in 
 making it. (6) 
 
 Where an overseer of a parish was duly subpoenaed to produce 
 a rate-book, but neglected to attend the trial of an appeal between 
 two other parishes, it was held that secondary evidence of the rate- 
 book was inadmissible, (c) 
 
 We have seen that, on proof of the loss of a deposition in bank- 
 ruptcy, secondary evidence may be given of its contents on a trial 
 for perjury, (d) 
 
 There is no distinction between criminal and civil cases with re- 
 spect to secondary evidence of documents in the possession of tlie 
 defendant. It has been solemnly determined, that notice may be 
 given to the defendant in a criminal prosecution to produce a paper 
 in his possession, and in case he neglects to produce it, other evi- 
 dence may be given of it. (e) Where secondary evidence is sought 
 to be given, on the gi'ound that the primary evidence is in the 
 possession of the adverse party, in the first place, the fact of such 
 jDossession must be proved. The degree of evidence, which may 
 be necessary to prove that fact, will depend so much on the nature 
 of the transaction, and the particular circumstances of each indi- 
 vidual case, that it is scarcely possible to lay down a general rule 
 on the subject. (/) Where an original instrument belongs exclu- 
 sively to a party, or regularly ought to be in his possession according 
 to the course of business, slight evidence is sufficient to raise a 
 presumption that it is in his possession. Thus, where the solicitor 
 to a commission of bankruptcy proved that he had been employed 
 by the defendant to solicit his certificate under the commission, 
 and that, on looking at his entry of charges, he had no doubt the 
 certificate was allowed, this was held sufficient proof of the ceriifi- 
 
 («) l^xilter !•. Jorss, 14 (.'. B. (X. S.), 
 
 747. 
 
 (li) Boyle V. \\ i.sinian, 10 Excli. K. 
 ()47. But Parke, B., aaid during' the 
 arguiueiit, 'If it had l)ecn distiuetly put 
 to the Abbe Cognat, "It is pioiiosed to 
 read this letter in evidence on the trial 
 of an action for libel ; will you allow it 
 to be placed in my hands for that pur- 
 pose ? " and he had rcfuscil, perliaps that 
 might have been sulHcicnt to admit 
 secondary evidence.' 
 
 (c) Keg. V. Llanfaethly, 2 E. & B. 
 940. The grounds of this decision were. 
 
 that the overseer might he punished for 
 disobeying the subp<eua, and that there 
 would be great liability to abuse, if the 
 production of the evidonce was disi>enscd 
 with by the disobedience of the wit- 
 ness. 
 
 ('/) Erg. r. Millies, '2 ¥. & F. 10, 
 anti\ p. 8S. 
 
 (t) Per BuUer, J., Kex r. Watson, 2 
 T. P. 201. Attornev-GcnenU r. Le 
 Alcrchant, 2 T. P. 2ol,"note (<i). Catcs 
 V. Winter, 3 T. P. SOd. 
 
 (/) 2 Phil. £v. 2Hj.
 
 CHAP. I. § II.] Best possible Evidence must he p)roduced. 339 
 
 cate having come to the defendant's possession, (r/) Where an Pos.session of 
 
 instrument has been delivered to a third party, between whom and '^^^''"^• 
 
 the party to the suit there exists a privity, the possession of the 
 
 privy is considered the possession of the party, for the purposes of 
 
 letting in secondary evidence. Thus, in an action against the owner 
 
 of a vessel, for goods supplied to the use of the vessel, a notice to 
 
 the defendant to produce the order for the goods which he had 
 
 given to the captain was held sufficient to let the plaintiff into 
 
 secondary evidence of the contents of the order, though the order 
 
 itself appeared to be in the possession of the captain ; on account 
 
 of the privity between the owner and the captain, (h) So in an 
 
 action of trover against the sheriff, a notice to the sheriff's attorney 
 
 was, on account of the privity between him and his under-sheriff, 
 
 held sufficient to let in secondary evidence of a writ, which was 
 
 proved to have come to the possession of the under-sheriff by 
 
 having been returned to him during the time the sheriff remained 
 
 in office, (i) So notice to a defendant to produce a cheque drawn 
 
 by him, and paid by his banker, is sufficient to entitle the plaintiff 
 
 to give secondary evidence of its contents, though the check 
 
 remains in the banker's hands, for the possession of the banker is 
 
 the possession of his customer. (J) So where a forged deed was 
 
 produced by the prisoner's attorney on the trial of an ejectment, in 
 
 which the prisoner was the lessor of the plaintiff, and after the 
 
 trial it was returned to the prisoner's attorney, it was held that 
 
 secondary evidence might be given of it, after notice to the prisoner 
 
 to produce it, without calling the attorney to prove what he had 
 
 done Avith the deed, (/o) 
 
 In order to let in secondary evidence, the instrument need not ^Vhere ^ party 
 be in the actual possession of the party ; it is enough if it is in ^^ ^ ""^^*' *° 
 his power, which it would be if it were in the hands of a party, 
 in whom it would be wrongful not to give up possession to him. 
 But he must have such a right to it, as Avould entitle him not 
 merely to inspect but to retain it. Where, therefore, a written 
 contract had been deposited in the hands of the common agent of 
 the defendant and the pei'son with whom he had contracted, and 
 notice to produce had been given to the defendant, it was held 
 that secondary evidence Avas not admissible, because, even if the 
 document were given to the defendant for the pin-pose of the 
 
 a documeut. 
 
 (if) llemyr. Leigh, 3 Campb. 502. 
 
 (h) Baldney v. Ritchie, 1 Stark. 
 N. r. C. 338. Eeg. v. Barker, 1 V. & F. 
 326. 
 
 (/) Taplinv. Atty, 3 Bing. 164. 
 
 {j) Partridge v. Coates, 1'. & M. 
 N. P. C. 156, per Abbott, C. J., S. P. 
 Burton r. Payne, 2 C. & P. 520, j.cr 
 Bayley, J. Sec also Sinclair v. Slcven- 
 son, 1 C. & P. 582, where Best, (.'. .T., 
 held it was enough lo trace the ])rimary 
 evidence to the jaissessinn oF an agent. 
 ]?ut there is no snch privity between the 
 defendant, and a third person under 
 whom he justifies, so as to make proof of 
 the possession of such third paity eqni- 
 valeut to the possession of the defendant. 
 Evans r. Sweet, P. & W. N. P. C". 83, 
 per Best, C. J. And Lord Kciiyon held, 
 on the trial of an infuriuation for a libel, 
 
 that proof of the deli\cry of a jjajicr to 
 the servant of the defendant was not 
 ]iroof of the fact of the paper being in tlie 
 defendant's iiosscssicm, so as to let in 
 parol evidence of its contents, upon 
 notice lo the defendant to produce it. 
 Rex V. Pcaree, Peake, N. V. V. 76 ; but 
 see contra, Pritehard v. Symonds, liull. 
 N. J'. 25 J. Rose. Kv. 7, and Colonel 
 Oonlon's case, 1 Leach, 300, note {a) to 
 Aiekles's case. 
 
 (/•) Itex V. Hunter, 4 ('. & 1'. Iii3, 
 A'aughan, B. Some counts of the in- 
 dictment charged that certain persons 
 made the deed, ami that the prisoner 
 fraiidnliiitly alteied it, and it was ob- 
 jected that previously to the receivin" 
 secondary evidence the attesting wituesa 
 ..(i.irlit lo le called; but Vaughan, B., 
 • iTcrrulcd the objection.
 
 340 
 
 Of Evidence. 
 
 [iJOOK VI. 
 
 Instnimcnt 
 onco in the 
 jKirty's jins- 
 scsaion, l>nt 
 since j)artc<l 
 with. 
 
 Notice to pro- 
 ilucc ; 
 
 its form. 
 
 AVhen and 
 upon whom to 
 be served. 
 
 caii.sc, it must Ik^ ri'liiriied. {I) And where a ))apcr is in the liands 
 <>t" a j)erson actin^^ in an independent cliaracter, and wlio lias a 
 ri<dit to the jxjssession of it, notice to the party is insufficient; 
 and tliis i.s so, altIiou<,di the party justifies under the authority ol" 
 that person. (771) 
 
 A letter which had hcon in the possession of the defendant was 
 proved on the part of the defendant to he then filed in Chancery, 
 jiursuant to an order of that Court ; Ahhott, C. J., was of opinion, 
 that the plaintiff, upon proof of notice to produce, was not entitled 
 to give secondary evidence of the contents ; for the letter wa.s a.s 
 much in the possession of the one party as the other. Either party 
 might, on application to the Court of Chancery, have obtained 
 permission to produce it. (ii) But where a document was traced 
 to the possession of the defendant, upon whom notice to produce 
 it had been served, but he proved that it was then in the stamp- 
 office (where it had been delivered to have some duties allowed). 
 Best, C. J., held, that as he had not informed the jilaintiff of that 
 circumstance Avhen serving the notice, secondary evidence was 
 allowable, (o) 
 
 After the possession of the primary evidence is proved to be in 
 the adverse party, the party offering secondary evidence must 
 prove that he has given notice to the other side to produce the 
 primary evidence. Such notice may be by parol as well as in 
 ■writing, and if both a parol and Avritten notice have been given, 
 proof of cither is sufficient. ( p) It should be properly entitled ; {q) 
 and must not be general, but should specify the document to be 
 produced. Thus, a notice ' to produce all letters, papers, and 
 documents touching a bill of exchange, mentioned in the declara- 
 tion, and the debt sought to be recovered,' was held too vague. (/•) 
 So a notice ' to produce letters and copies of letters, also all books 
 relating to the cause,' was held insufficient to let in secondary 
 evidence of a letter alleged to have been written nine years 
 before. (■?) It should also be served in reasonable time, {t) In 
 civil cases, the rule is, that notice to produce should be served 
 before the commission day, when the party lives away from the 
 assize town, in order that he may have an opportunity of bringing 
 
 (1) Parry i: llAy, 1 JI. & Rob. 279, 
 Littledalc, J. 
 
 (m) 2 Phil. Ev. 218, citing Evans v. 
 Sweet, R. & M. 83. Rex v. Pearce, 
 Peake, 76. Pritcliard v. S>Tiionds, 15. 
 N. P. 254. Whitford v. Tutin, 10 Bing. 
 R. 395. 
 
 (n) "Williams v, Muunings, 1 1!. & 'SI. 
 N. P. C. 18. 
 
 (o) Sinclair r. Stevenson, 1 V. & P. 
 582. 
 
 (;;) Smith v. Young, 1 Campli. \\(^. 
 Rose. Ev. 7. 
 
 (q) Harvey v. Jlorgan, 2 Stark. R. 1 7, 
 wlirre in an action by tlic plaiutitTs as the 
 assignees of C. v. E., a notice to produce 
 was entitled A. and B., assignees of C. 
 and D. r. £., and hold insullicient by 
 Lord EUenborough, though A. & B. were 
 in fact the ;issignees of C. & 17. 
 
 (/•) France v. Lucy, R. & M. X. P. C. 
 341. Smith 7-. Sandcnian, 2 Cox, C. (.'. 
 239. 
 
 (a) .Tones v. Edwards, M'Clcl. & Y. 
 139. In Morris v. Hauser, 2 M. & Rob. 
 392, Lord Denman, C. J., held a notice 
 to produce ' all letters, written to and re- 
 ceived by the plaintiff between the years 
 1837 and 1841, both inclusive, by and 
 from the defendants, or either of them, or 
 any person in their behalf,' sufficient to 
 let in secondary evidence of a letter. 
 And in .Jacob r. Lee, 2 M. & Rob. 33, 
 Patteson, J., held a notice to produce 'all 
 and every lettei-s written by the plaintiff 
 to the defendaTit relating to the matters 
 in disjiute in this action,' sufficient, and 
 distinguished the case from France v. 
 Luc}', and Jones v. Edwards, supra, on 
 the ground that the notice mentioned the 
 parties by whom and to whom the lettei-s 
 were addressed. 
 
 {() As to what is considered a reason- 
 able notice, see Doe v. Grey, 1 Stuk. R. 
 283. Br\-an r. AVagstaff, R. & XL X. P. V. 
 327. Drabble c. Douner, ibid. 47.
 
 CHAP, I. § II.] Best possible Evidence must he produced. 
 
 the paper required. ((6) Aufl, d fortiori, in a criminal case, where 
 the party is in prison at a distance from his home, ought the 
 notice to be served before the commission day. (v) And where 
 on a trial at the assizes for arson, with intent to defraud an 
 insurance company, a notice to produce the policy had been 
 served on the prisoner about the middle of the day before the 
 trial, and his residence, where the fire haiapened, was tliirty miles 
 from the assize town, the notice was held insufficient. (?(') But 
 no general rule can be laid down, as each case must depend on its 
 particular circumstances. Where, therefore, a document was at 
 the assize town, in the possession of an attorney, who had acted 
 as attorney for the prisoner on a trial where the document was 
 given in evidence, a notice served on the commission day was 
 held sufficient, (x) In town causes, service of notice on the 
 attorney in the evening before the trial is in general sufficient, {y) 
 And on a trial for conspiracy, a notice to produce a cheque 
 served at three o'clock in the afternoon of the day before the trial, 
 at the office of the London agents for the country attorney of the 
 
 341 
 
 {u) Trist r. Johnson, 1 ]\r. & Eob. 259, 
 Park, J. A. J. S. P. George v. Thomp- 
 son, 4 Dowh P. P. 656, where it was 
 served on the commission day, at 5 p.m., 
 at the attorney's residence, ai^ter he had 
 h'ft home for the assize town. Do(> d. 
 Curtis V. Spitty, 3B. & Ad. 182. Har- 
 gest V. Fothergill, 5 C. & P. 303, Taun- 
 ton, J. In Howard v. "Williams, 9 M. & 
 "\V. 725, a notice was served on the de- 
 fendant's attorney at his residence, 
 twenty miles from the place of trial be- 
 fore the under-sheriff", at 8 1'. jr., on the 
 night before the trial ; the defendant 
 resided in the same town with the attor- 
 ney, but was not at home until 12 tliat 
 night ; and the notice was held insuffi- 
 cient. 
 
 (1-) Rex V. Ellicombc, 1 JI. & Pob. 
 20t), Littledale, J. This was an indict- 
 ment for setting fire to a house witli in- 
 tent to defraud an insurance company, 
 and notice was served on the prisoner in 
 gaol on Monday, the assizes having com- 
 menced on the Friday ])ievious, and the 
 trial being on the AVeducsday following. 
 The prisoner's resident^' was ten miles 
 from the assize town. The notice was 
 lield insufficient. 
 
 {iv) Keg. V. Kitson, Dears. (_'. C. 187. 
 {.«) Peg. V. llankins, 2 C. & K. 823, 
 Coltman, .1. In tliis case, on a trial for 
 perjury, it appcarril tliat about noon on 
 the commission (lay at Hereford, the trial 
 taking place the following morning, a 
 notice to produce a pajier (with leferencc 
 to which the perjury was alleged toliavc 
 been conunittcd on a trial in tlic cmiuty 
 ciiurP) was served in Hereford on Mr. 
 Cadle, the]>reseMtattorneyof the ]irisoner. 
 'I'lie piisoner lived at Koss, fourteen miles 
 from Hereford, and Mr. C'adle lived at 
 Newent, twenty-ffve miles from Hereford ; 
 butin the notice, further notice was given 
 that the paper was then in Hereford in 
 the possession of Mr. Jlinett, who was 
 
 then at the Green Dragon Hotel, and 
 who had lieen the attorney for the pri- 
 soner at the trial in the county court, 
 and who had previously been called upon 
 tinder a subpicna duces tecum to produce 
 the paper on this trial for perjury, and 
 had been held not bound to produce it, 
 on the ground that he held it as attorney 
 for the prisoner ; and Coltman, J., helil 
 that this notice was sufficient to let in 
 secondary evidence of the contents of the 
 paper. So where notice to produce cer- 
 tain policies of insurance was servccl on 
 the attorney of tlie prisoner, on Tuesday 
 evening, tlicprisoner being then at Maid- 
 stone, but not in custody, and the ]>olicies 
 were twenty miles off, and the trial was 
 on Thursday, and on the AVednesday the 
 prisoner's attorney had sent a ])erson to 
 serve a subprena at a place within four 
 miles of where the policies were ; Pram- 
 well, P., held, that as there had been an 
 opportunity of obtaining the policies, the 
 notice was sulliiient, and said that no 
 general rule coidd be laid down, but 
 every case must be governed by its par- 
 ticular circumstances. Peg. r. Barker, 1 
 P. & F. 326. 
 
 (y) Per Gurncy, P., Atkins r. !Mere- 
 dith, 1 Dowl. V. R. 658. 2 Phil. Kv. 219. 
 Gibbons r. Powell, 9 C. & P. 634, Gur- 
 ncy, P. Deaf r. ]?utt, C. & M. 451. 
 Jleyiick c. AVoods, ibid. 452. But wliere 
 notice to produce a receipt was served on 
 the defendant on Saturday, the cause 
 coming on for trial on the Monday, 
 Gurney, P., held the servi<'e too late, and 
 that the notice sliould have been served 
 on the attorney. Hou.senian r, lioberts, 
 5 C. & W 391. AVliere Die ])arty and 
 his attorney both lived in AVorcester, 
 AVillianis, J., held tliat service on the 
 Saturday during the assizes for the Mon- 
 dav following wa.s sufficient. Firkin v. 
 Edwards, 9 C. & P. 478.
 
 342 
 
 Of Evidence. 
 
 [book 
 
 vr. 
 
 (lofeM<l;inlM, wlio Hvnl in irorcfordshirc, has been hold sufficient, {z) 
 And \vh(Mi' ji party has boon scrv'cd with a notice to produce 
 sullirioiitly caily tn onablo hiin to procbicc the tlocumcnt, it makos 
 no (lilVciciH'i! that at the time of the service the case has lieen part 
 hoard. {<i) J Jut wliorc in a town cause the sorvice was at sovon 
 o'clock tlic evening before the trial, upon the attorney, who 
 resided in London, between two and three niilos from the trades- 
 man, whose books were rcipiircd to bo produced, the Court of 
 Excho(iuor liold tho notice insufficient, as the books could not bo 
 prosumed to "he in the possession of tlio attorney. (6) All those 
 cases depend on their particuhir circumstances, and tho question 
 in each is, whether the notice was given in a reasonable time to 
 enable the party to be prepared to produce the document at the 
 time of the trial, {c) Tlie notice may be served either on the 
 party himself or his attorney. There is no difference in this 
 respect between criminal and civil cases, {d) Where the defendant, 
 an attorney, was indicted for perjury on the trial of an ejectment, 
 in which he had acted as the attorney of the lessor of the plain- 
 tiff, and had produced a document and taken it back again, it was 
 held that a notice to produce that document served on the de- 
 fendant was sufficient, although he was not the attorney on the 
 record in the ejectment, (e) And a notice served on a prisoner 
 in gaol is sufficient. (/) So a notice served on a prisoner for 
 one session of the Central Criminal Court has been held to be 
 sufficient for a subsequent session, to which tho trial had been 
 postponed. (,7) 
 Notice to pro- ^'ho roasou why notice to produce is required, is not to give the 
 iiuce when un- opponent notice that such a document will be used, so that he may 
 be enabled to prepare evidence to explain or confirm it ; {It) but it 
 is merely to enable him to have the document in Court, to produce 
 
 necessary. 
 
 {z) Reg. V. Ilamp, 6 Cox, C. C. 167. 
 Lord Campbell, C. J. The slieriff liad 
 seized the chomie in (piestion in levying 
 for a forfeited recognizance of one of tlie 
 defendants, but this was held to make no 
 dilference. 
 
 {a\ Sturm r. JeflVee, 2 0. & K. 442. 
 Pollock, C. B. Tliis cause began on 
 Thursday, and at four o'clock was ad- 
 journed ; before nine that evening the 
 notice was served : all the parties lived 
 in London. On Friday the hearing was 
 resumed, and the docuinent called for ; 
 and it was held that the notice was suffi- 
 cient. 
 
 {(>) Alkinsr. Jleredith, 4 Dowl. V. V<. 
 658. In Kex r. llaworth, 4 C. & P. 2r.4, 
 Parke, J., held a notice to produce a 
 forged deed served on the prisoner after 
 theconnnencenient of the assizes too late, 
 saying it should have been served a 
 reasonable time before the assizes ; but 
 it does not appear whether the prisoner 
 resided in the assize town or not. Sec 
 Koyston's case, 1 Lew. 267. 
 
 {,c) Per Aldei-son, P.., Lawrence !•. 
 Clark, 14 M. & W. 250, where a notice 
 dated the 12tli of February was put into 
 the letter-box of the plaintift"s attorney 
 iu Loudon at half-past eight tfte evening 
 
 before the trial, which was on the 19tli, 
 but it was not shown whether the docu- 
 ment was in the possession of the attorney 
 or the plaintiff, wlio lived in London ; 
 and the notice was held insufficient. 
 
 {d) The Attorney-General r. Le Mer- 
 chant, 2 T, R. 201, in note («) to Rex r. 
 "Watson. But it has been observed that 
 the preceding case could not have been a 
 case of felony, and that iu felony a pri- 
 soner cannot appear by attorney (per 
 Pollock, C. B., Keg. r. Downham, 1 F, 
 & F. 386). As, however, an attorney may 
 in f\ict be employed by a prisoner, it is 
 clear that a notice served on an attorney 
 so employed is good ; but it is, of coui-se, 
 nccessar}' to prove that the attorney is 
 so employed. Reg. i: Downham, supra. 
 Reg. V. Boucher, 1 F. & F. 486. 
 
 (c) Reg. r. Phillpotts, 5 Cox, C. C. 
 329, Erie, J. It was strongly urged, but 
 iu vain, that the document would be in 
 the possession of the lessor of the plain- 
 tiff, 
 
 (/) Reg. r, Robinson, 5 Cox, C. C. 
 183. Pollock, C. 15., and Erie, J. 
 
 ((/) Reg. V. Robinson, f>upra. 
 
 (h) This was stated in 1 Stark. Ev. 
 404,
 
 CHAP. I. § IT.] Best possible Evidence must he prodaced. 343 
 
 it, if he likes, and, if ho does not, to enable the other party to give 
 secondary evidence of it. It is merely to exclude the argument 
 that the party desirous of proving the document has not taken all 
 reasonable means to procure the original, (i) If, therefore, the 
 document bo in Court in the possession of the opponent, it may be 
 called for, and if it be not produced, secondary evidence of it may 
 be given. {]) 
 
 So notice to produce is unnecessar}-, when, from the nature of 
 the proceedings, the party in possession of the instrument has 
 notice that he is charged with the possession of it, as in actions of 
 trover, for bonds or bills of exchange. (/.•) So in a j)rosecution 
 for stealing a promissory note or other WTiting described in the 
 indictment, jDarol evidence of the contents will be admissible, 
 without any formal notice to the prisoner to produce the original. 
 On an indictment for stealing a bill of exchange, all the judges 
 held, that such evidence had been properly admitted, though it 
 was proved that the bill had been seen, only a few days before the 
 trial in a state of negotiation, in the hands of a third person, who 
 had been served with a subpoena, and did not appear ; (/) and if 
 it had been jDroved to have been in the custody of the prisoner, 
 parol evidence might have been given of its contents without notice 
 to jDroduce. (^i) So on an indictment containing a count for 
 stealing a post letter, the direction of which is stated in the 
 count, the direction may be proved without any notice to produce ; 
 for the count gives sufficient notice, {ii) So on an indictment for 
 forging a note, which the prisoner afterwards got possession of 
 and swallowed, Buller, J., permitted parol evidence to be given of 
 the contents of the note, though no notice to produce it had been 
 given, (o) But there it might be said, that such a notice would 
 be nugatory, as the thing itself was destroyed, {p) On an in- 
 dictment for forging a deed of release, it appearing that the 
 prisoner had stated that after he had obtained possession of 
 the deed he had burnt it, it was held that secondary evidence 
 of its contents was admissible, {q) In Layer's case, (r) on an 
 indictment for high treason, where it was proved, that the pri- 
 soner had shown a person a paper, containing the treasonable 
 matter laid in the indictment, and then immediately put it 
 into^ his pocket, that person was permitted to give parol evi- 
 dence of the contents of the paper. So on the trial of an indict- 
 ment for administering an unlawful oatli, it was held that a 
 
 (i) Per rarko, B., Dwycr ?•. t'ollins, 7 Ihegavmcnts were fumishod by the tailor ; 
 
 Excli. li. 0:31>. .sui>i)o.sc .a coat with such a lahcl wore 
 
 (j) Dwyer v. <'olliiis, supra, over- stolen, surely it would not lie rcijuisito to 
 
 ruling Cook v. licanie, 1 M. & Koh. give a notice to i>roduec the label.' IJeg. 
 
 201. See Doe r. Grey, Stark. 283 ; IJoe r. Fcnton, ;w.v/, p. 3-lJ, note {!(\ was 
 
 r. Harvey, 4 15urr. 2484. And the altor- cited in this case. See 1!. r. l''iirr, 4 F. 
 
 ney may be called to ]irove that the i*>c F. 330". This ca.se eaunot lie .supiiorted. 
 
 document is in court, il>id. (o) Spraggo's case, cited by Lord 
 
 (/.') How V. Hall, 14 Fast, 274. Scott I'.llenborougli, C. .1., in How r. Hall, 14 
 
 r. .Tones, 4 Taunt. 865. Tidd's Tract. 853. I'last, 276. 
 
 'Die practice used to bo otherwise, per (;>) IVr I^ord Fllenborough, C .I.,ibid. 
 
 Cibbs, J., 4Taimt. 868. (q) Hex r. Haworth, 4 C. & P. 254, 
 
 (/) Aickles's case, 1 I.cach, 294. Parke, .1. See Foster r. Pointer, i) C. & 
 
 Im) 1 Leach, 297, per Heath, -T. P. 718. ]>oe d. I'liillips r. Morris, 3 A. 
 
 (n) Reg. V. Clube, 3 Jur. (N. S. ) 608, & E. 46. 
 
 Pollock, C. P., who said, ' It is very com- (/•) 6 St. Tr. 263, De La Motto's rase. 
 
 mon for a person to have on his garments Coram Piuller,and Heath, Js., 1 East, P. 
 
 labels stating his name and the date when ('. c. 2. s. f>S, p. 124.
 
 344 Of Evuh'nco. [book vi. 
 
 ^vitn(^ss iiii^lil. j>i()V(' that, the j)ris(jiioi* read an (jath from a papei", 
 \vithi)ut ^^iviiii; him iiolicc to pruihicc it. (.v) But an iiKJictmoiit 
 for setting fiiv to a liou.su, with intent to defraud an insurance 
 olHco, does not convey such a notice that the policy of insurance 
 \vill he r('(|uired upon the trial, as to di.spense with the necessity of 
 a notice to ])roduce it. (/) So where on an indictment for stealin*^' 
 in»n out of n canal boat, it appeared that the boat had been 
 wcitfju'd at a lock, and a ticket of the wf-i^dit tfiven to the prisoner, 
 ;iud it was ])ro))Osed to jj;ive .secondary evidence of its contents, 
 althou'^h iiu notice (o produce it hail been given ; Parke, J., lield 
 that this was not allowable, because the rule which requires notice 
 to be given extends to criminal as Avell as civil cases, except where 
 the nature of the indictment itself expressly shows the prisoner 
 that the deed or paper in question will be wanted at the trial, {u) 
 Upon an indictment for perjury in falsely swearing on a former 
 trial that there was no draft of a statutory declaration, the mate- 
 liality of the existence of such draft turned upon its contents, and 
 the fact of certain alterations having been made in it. Parol evi- 
 dence was admitted, not only of the fact of the existence of the 
 draft, but of its contents and of alterations made in it, which were 
 not in the declaration itself, without any notice to produce the 
 draft having been given to the prisoner. Held, that such parol 
 evidence of the draft and its contents was inadmissible, and that 
 the nature of the indictment was not such as of itself to operate as 
 a notice to produce, and the conviction upon such indictment was 
 cpiashed. (i') 
 
 If a witness be sworn and has a document in his possession, he 
 may be compelled to jjroduce it, although he has not been served 
 with a subpoena diLces tecum ; (y) and if a person be sworn, and 
 decline to produce a document, which he has in Court, on any 
 
 (.v) Rex r. Moors, 6 East, 419, note to not Ix* given without notice to jiroduce 
 
 Ucx V. Nield. See also Rex v. Hunt, 3 it. Scdqncerc, and see tlie eases ante, p. 
 
 1j. & A. 5G6, ante, p. 329. And see the 3-13. On an indictment against a son 
 
 s;inie case as to proving inscriptions on lor stealing and a fatlier tor receiving 
 
 liannert-', <ie., without notice to produce, lioots and shoc>!, it ajipeared that a haui- 
 
 ibid. So the principle of the rule re- per which was alleged to liave contained 
 
 (luiring notict- to produce does not extend some uf the articles had been sent by the 
 
 to a case where a party to the suit has son to the lather, and it was proposed to 
 
 iVaudidently got possession of a written prove how it was directed ; but >laule,J., 
 
 instrument belonging to a third person ; doubted wlicthcr tiie evidence was ad- 
 
 as where a witness was called on the part missiblc, andtliereupon it was withdi-awn. 
 
 of the defendant, to produce a letter Reg. r. llinlev, 2 Vox, V. C. 12, S. I'., 
 
 written to him by the plaiiitifl", and it but not S. I'. , 2 M. & Rob. 521, Maule, 
 
 a[ipeared that, after tlic commencement J., said, 'The ground iipon which the 
 
 (if the action, he had given it to the evidence may be admissible is the pre- 
 
 ])laintitf; in this case, though a notice to sumption that the direction does not 
 
 ]iroduce had not been given, parol evi- exist ; whereas there ma}' not be the same 
 
 tlence was admitted, because the paper reason for presuming that it is in exist- 
 
 belonged to the witiu'ss, and had been euce. Therefore, unless you can show 
 
 secreted in fraud of the subpcena. Leeds that it exists, it would appear that the 
 
 r. Cook, 4 Esp. N. P. C. 250". Tidd, IV. evidence should be admitteil." 'Suppose 
 
 853. an inscription on a bale marked "XX, ' 
 
 (t) Reg. V. Kitson, Dears. C. 0. 187. would it be neces.sary to produce the 
 
 Rex ?'. Ellicombe, 5 C. & R. 522. 1 M. bale .'' According to the report in M. & 
 
 & Rob. 260, Littledale, J. Itub. the hamper had ])asseil backwanls 
 
 (») Rex r. Humphries, StafTord Spr. and forwards between the son and father 
 
 Ass. 1829, MS. (_'. S. G. See Reg. r. i\>v several months. No authority was 
 
 l-futon, cited 3 t'. B. 700. On an indict- referred to in this case, 
 
 ment for larceny of a coat contained in a (c) R. r. Elworthy, 37 L. J. il. C. 3. 
 
 IMiper parcel, Parke, B., held that evi- (i/) Suelgrove r. Stevens, C. k M. 508, 
 
 dence of the ilirection of tlie parcel could Cresswell, J.
 
 CHAP. I. § II.] Best possible Evidence must he produced. 
 
 lawful ground, secondary evidence may be given of its contents, 
 tliougli he has not Ijcen served with a subpoena duces tecum, (z) 
 
 A party called upon to produce a paper, must either produce it 
 when called upon, or not at all : he cannot avail himself of it in a 
 subsequent stage of the case, {a) Where, therefore, notice had 
 been given to the defendant to produce certain receipts for rent, 
 which he refused to produce ; it was held, that he could not 
 afterwards, as part of his case, put in the receipts for the purpose 
 of showing that the rent was paid to the lessors of the plaintiff and 
 another jointly. (6) 
 
 Where a document is produced in consequence of a notice to 
 produce, and it is alleged that the document is not the document 
 in question, it is for the Court to decide whether it be so or 
 not. (d) And where a document is called for after notice to 
 produce, and some evidence is given to show that it is in the 
 possession of one party, the other side is entitled at once to give 
 evidence to prove that it is not in the possession or under the 
 control of such party, and it is for the judge to decide this 
 question, (e) 
 
 The regular time of calling for the production of papers and 
 books is not until the party who requires them has entered 
 into his case ; till that period arrives, the other party may re- 
 fuse to produce them, and there can be no cross-examination as 
 to their contents, although the notice to produce them is 
 admitted. (/) 
 
 If upon a notice to the adverse party to produce primary evidence 
 in his possession, he refuses to produce the instrument required, the 
 other party who has done all in his power to supply the best evi- 
 dence will be allowed to go into secondary evidence, (g) If the party, 
 giving due notice, declines to use the papers when produced, this, 
 though matter of observation, will not make them evidence for 
 the adverse part}^, (It.) though it is otherwise when the papers are 
 inspected, {i} Secondary evidence of papers, to produce wliich 
 notice has been given, cannot bo entered into till the party calling 
 for them has opened his case, before which time there can be no 
 cross-examination as to their contents, (j) Where a party, after 
 notice, refuses to produce an agi'eement, it is to be presumed as 
 against him that it is properly stamped. {Jc) 
 
 (:) Doe (1. Losc'ombe v. ClilTord, 2 C 
 
 6 K. 448. Aldcrsoii, H. See Doe Gil- 
 bert V. Ross, 7 M. & W. 102. 
 
 (a) 2 riiil. Ev. 220. Doo d. Higgs r. 
 C'ockell, 6 V. k P. ,'')2.'). Jackson v. 
 Allen, 3 Stark. K. 74. J.ewis r. Hartley, 
 
 7 0. & P. 405. 
 
 (It) Doe d. Tlionipson v. Hodgson, 12 
 A. &E. 135 ; 2M. & Koh. 282. 
 
 {d) Harvey r. Mitchell, 2 M. & Hob. 
 366. In Fronde v. Hobbs, 1 F. & F. G12, 
 Byles, J., with the consent of the parties, 
 left the question to the jnry wlu'thcr a 
 book produced was the book in which 
 tlie terms of a lontrait had been entered, 
 lint this was only to assist him in de- 
 eiding the (question. 
 
 (c) Harvey r. Mitch.-ll, 2 U. k liob. 
 366, Parke, 1». Ha dei'cnilant interposes 
 such evidence, it does not give any right 
 to the plaintitr to reply, as it is given 
 
 345 
 
 The document 
 must be pro- 
 duced when 
 called for. 
 
 merely for the purpose of enabling the 
 juilge to decide the (piestion. 
 
 (/) 2 Phil. Kv. 222. Graham r. 
 Dvster, 2 Stark. R. 23. Sideways r. 
 Dyson, ibid. 40. 1 Stark. Va: 403. 
 
 (f,) C'ooper and another r. (Hblunis, 
 3 C'anii)b. 363. 
 
 (/() Sayer r. Kitchen, 1 F.sp. N. P. ( '. 
 210. 
 
 (/) ^Vharanl v. Routledgi', 5 Ksp. N. 
 P. V. 235. Rose. Kv. 9, S. P., if they are 
 at all nuiterial to the case, Wilson r. 
 Howie, 1 ('. & v. 10, Park, .1. \. .1. 
 Calvert r. Flower, 7 C & 1'. 386. See 
 Smilli V. IJrown, 2 Cox, C. C. 278. 
 
 {J) Crahani r. Dyster, 2 Stark. 23. 
 Rose. Kv. 9. 
 
 (A-) Cri.9p i'. .\nderson, 1 Stark. N. P. C. 
 35, but the party refusing is at liberty to 
 prove the contrary, ibid. 
 
 The court 
 must decide 
 whether the 
 document is 
 the right one, 
 and in whose 
 custody it is. 
 
 Time to call 
 for produc- 
 tion. 
 
 Consequences 
 of giving no- 
 tice to ijro- 
 duce.
 
 346 
 
 8. Wliut U 
 good sofoinl- 
 ary ovidoiioo. 
 
 Of a ilco.l : 
 ()i'i){iiiiil ill- 
 Ktrtiiiicnl must 
 )io i>nivcil to 
 liiivo licrii 
 duly oxociitcd. 
 
 No dc;;ri>os of 
 
 Kpcoiulary 
 
 evidenco. 
 
 Of Eridonee. 
 
 [book 
 
 VI. 
 
 Of a letter. 
 
 Of an affidavit 
 of ownei-sliip 
 of ship. 
 
 n. Tt remains to hv coitsidc'rcd wli.it is good secondary evi- 
 diiKip. (/) 1 1; must bo observed that, previous to giving any such 
 eviiU'nco oC I he contents of a deed, the original deed otight to be 
 ]iroved to have been duly executed, {m) Where the .sessions 
 I'niiiid that B. was the attesting witness to a lost indenture of 
 apprenticeship, it was held that evidence of his handwriting was 
 unnecessaiy ; for the ])roof of handwriting Cfiuld only l)o required 
 to establish the identity between the deceased and the attesting 
 witness. (?;) So where an original note of hand is lost, a copy 
 cannot be read in evidence unless the note is first proved to bo 
 genuine, (o) In secondary evidence there are no degi'ee.s, that is, 
 no precedence or superiority in point of admissibility. An attested 
 copy of a Avritten instrument is not of a superior order of proof to 
 an examined copy, nor is an examined copy superior to parol evi- 
 dence of the contents, (p) As soon, tiierefore, as a party has 
 accounted for the absence of the original document, he is at liberty 
 to give any kind of secondary evidence. (7) A copy of a document 
 taken by a machine which was worked by the witness who produces 
 it, is good secondary evidence, though it was not compared with the 
 original, (r) So a document sent by the plaintiflf to the defendant 
 with a letter stating it to be a copy of a deed, is evidence against the 
 plaintiff, though notice to produce the deed has been given, and 
 the deed is not called for. (s) But a paper delivered as a copy of 
 a deed from the office of an attorney, but which he states he is 
 unable of his own knowledge to vouch to be a copy, is in.suffi- 
 cient. {t) The evidence of any one who recollects the contents of 
 a letter is good secondary evidence of them, (h) although it is in 
 the party's power to produce the clerk who wrote the letter, [v) 
 Where it was proposed to prove that defendant was owner of a 
 ship, by means of his affidavit, sworn for the purpose of obtaining 
 
 (/) Fislior V. Sanuula, 1 Camph. 193. 
 
 (,/() IJuil. N. P. 254. Eex )-. Cul- 
 pepper, Skin. 673, 
 
 in) l}('g. r. St. Gile.s, 1 E, & B. 642, 
 22 L. J. I^r. C. 64. Erie, J., .said, 
 ' In no case whatever when the instru- 
 ment is lost, and the attesting wit- 
 ness is dead, can it he necessary to 
 prove his handwriting;.' But ^^'ightnlan, 
 J., thought it not necessary to determine 
 whether proof of such handwriting was 
 indispensahle ; andC'rompton, J., thought 
 there might he cases where it might he 
 necessarj' to prove such handwriting. 
 
 {0) By Lord Hardwicke. C. J., in 
 Goodier *•. Lake, 1 Atk. 240. 
 
 ( i>) 2 Phil. Kv. 230. Bull. X. P. 2r.4, 
 Munn V. Godbold, 3 Bing. 292. Ehiiid v. 
 "Wilkinson, 2 Taunt. 237. Ejtc v. Pals- 
 grave, 2 Campb. 605. 
 
 {q) Per Parke, B., Doe d. Gilbert r. 
 Boss, 7 l\. k "W. 102. In that ca.se on 
 the trial of an ejectment by tlie same 
 lessors of the plaintiU" against a ilitTcrcnt 
 dt fendant, a deed was given in evidence 
 on the part of the defendant, and it was 
 held tliat the shorthand writer's notes of 
 the contents of the deed were admissible 
 in evidence, althougli there was an at- 
 tested copy, which being unstamped was 
 rejected. In Brown jC 'Woodman, 6 (.'. 
 
 k P. 206, Parke, J., held that parol evi- 
 dence of the contents of a letter was ad- 
 missible, although a copy of tlie letter 
 existed. See Doe d. Morse r. "WiUiams, 
 (.'. & M. 015. In Hall r. Ball, 3 II. & 
 Gr. 242, in trover for an expired lease bj- 
 the lessor, the lease or eounterpai't exe- 
 cuted by the lessor not being produced 
 by the tlcfendant upon notice, it was held 
 that the lessor might give parol evidence 
 of the contents without producing the 
 counterpart executed by the lessee. And 
 see Newton r. Chaplin, 10 C. B. 356. 
 
 (>•) Simpson v. Thornton, 2 M. & Bob. 
 433, Jl.iule, J. 
 
 (s) Ansell r. Baker, 3 C, & K. 143. 
 This decision, perliaps, rather rests on 
 the ground that the plaintilf had ad- 
 mitted the existence of such a deed, and 
 that such admission was evidence against 
 him indcjiendently of the notice to pro- 
 duce ; still it was an admission of the 
 correctness of the copy. 
 
 (0 Volant !■. Soyer,'l3 C. B. 231. 
 
 \v,) Licbni.in r. Poolev, 1 Stark. N. P. 
 C. 167, bj- Lord EUenborongh, But a 
 copy of the original copy of a letter is 
 not good secondary endence, ibid. 
 
 (f) Bex r. Chadwick, 6 C, & P. 181, 
 Tiudal, C. J.
 
 347 
 
 Of lost agree- 
 ment, &c., l>y 
 iiiistamped 
 Counterpart. 
 
 Cases wliere 
 the rule is re- 
 laxed. 
 
 Public books. 
 
 Post-oftice 
 marks. 
 
 CHAP. I. § II.] Best posslhh Evidence must he produced. 
 
 a certificate of rogifitcr, and a proper ground for the reception of 
 secondary evidence had been hiid ; Lord Ellenborough held, that 
 an entry in the register-book at the custom-house, stating that the 
 certificate had been granted on an affidavit of the defendant that 
 he was owner, was not admissible as secondary evidence. The 
 collector's clerk, or some person wlio had seen the affidavit, and 
 knew that it was made by the defendant, ought to have been 
 called, (w) Where there are two parts of a written agreement, 
 both executed at the same time, the one stamped and the other 
 unstamped, the unstamped joart, upon being proved to be correct 
 by a witness, is admissible as secondary evidence of the contents 
 of the stamped part, (x) So where there was a properly stamped 
 agreement under seal, and a counterpart of it unstamped, and 
 the plaintiff proved the loss of the deed itself, and proposed to 
 read a draft copy in evidence, it was held that the unstamped 
 counterpart, which was produced after notice by the defendant 
 might be read as secondary evidence of the contents of the lost 
 deed. (y) 
 
 There are some particular cases, where the rule that the best 
 possible evidence must be produced has been relaxed. Where it 
 is necessary to prove an entry in a public book, the original book 
 need not be shown ; but from a principle of general convenience, 
 an examined copy will be admitted, (z) The post-office marks in 
 town or country, proved to be such, are evidence that the letters, 
 on Avhich they are, were in the office to which those marks belong 
 at the dates those marks specify ; (a) but a mark of double postage 
 on such a letter is not in itself evidence that the letter contained 
 an enclosure, (6) and it has been held that the post-mark is not 
 evidence for the purpose of proving that the letter was put into 
 the post-office at the place mentioned by such post-mark, (c) The 
 muster-books of the King's ships, documented in the navy office, Muster-books, 
 to which returns are regularly made, by the commanders, of the 
 names, &c., of their respective crews, may be admitted as evidence 
 of the persons therein named having served on board the several 
 ships in the capacity there mentioned, (d) So in the case of all 
 peace officers, justices of the peace, constables, &c., it is sufficient to 
 prove that tliey acted in those characters, witliout producing their 
 appointments ; (e) and that even in a case of murder. (/) A witness 
 may be examined on the voire dire as to the contents of a written 
 instrument, without notice having been given to produce it. (g) 
 And where a Avitncss is cross-examined for the purpose of ini- 
 pcacliiug his credit, such cross-examination is sometimes allowed 
 
 daily IjdoIc of a jirison is gootl evidence 
 to prove the time of a prisoner's dis- 
 charge. 
 
 (<■) 1 riiil. Ta: i.Vl. Antr, p. 327. 
 
 (/■) Bv BuUer, .1., iu I'lerryman r. 
 Wise, 1 T. 1!. 300'. 
 
 ((/) Howell r. Locke, 2 t'anipb. l.">. 
 'All cxaiiiiuation on the voire t/iif is for 
 the ])nr]iosi' of establishiuf,' someliiiu'? of 
 which the court is to be the judi,'o aiitl imt 
 the jury ; it may well lie, therefore, tliat 
 the rule there isnot so exclusive as in the 
 case of an examination going to a jury.' 
 Per Manic, J., MacdonncU r. Evans, 11 
 
 (.'. ]}. no. 
 
 Persous actiusj 
 in a pulilic 
 capacity. 
 
 On the voire 
 dire. 
 
 On cross- 
 examination 
 to impeach a 
 
 iw) Tc(hI v. Mail! II, 4 Canipb. 90. 
 
 (..) Waller V. Ilorsfali, 1 C'ampb. 501. 
 
 (//) Munn V. tiodbold, 3 IJing. 2it2. 
 See also (iarnons v. Swift, 1 Taunt. 
 507. 
 
 (;) 1 Phil. Kv. 432. 
 
 (a) Rex V. Plunier, Kuss. & Hy. 201. 
 Atitr., p. 220. 
 
 {b) Ibid. 
 
 ((•) Rex r. Watson, 1 Canipb. 21.'). 
 Ante, p. 222, and Fletcher r. lira. Idyll, 
 3 Stark. N. P. C. 64. 
 
 (d) Aide, vol. 2, ]i. 803, Rhodes's case, 
 1 Leach, 24. And see Aickles's case, 1 
 Leach, 390, where it was held that the
 
 348 
 
 witncHH'H 
 credit. 
 
 Rule njiiilios 
 (inly to luoof 
 of tlif issui', (ir 
 of sonic fact 
 material to the 
 isMie. 
 
 Stateineiils 
 res])ecting 
 writings. 
 
 0/ Evidence. 
 
 [nooK VI. 
 
 Fuct of 
 tenanev. 
 
 Facts of scv- 
 \ ice. 
 
 to bo coiiduftc'd witlioiiL ic<^ur(l to the nil(; under Cfjii.sideration. 
 As to (jticstioiiing a witness wliother ho lias been convicted of a 
 felony or misdemeanor, without producinj^ the conviction, sec post. 
 As to iuskint,' a witne.ss on cross-e.xaminalion, for the purpose 
 of trying his credit and veracity, whether he lias not given an 
 account in writing different from liis present testimony, without 
 ])rodueing the writing itself, scv 'post. It seems that the general 
 rule, that the best evidence is to be produced which the nature of 
 the thing admits, is to be understood as applying oidy to tlic proof 
 of the issue, or of some fact material to tlie issue, (j) 
 
 Whatever a party says, or his acts amounting to admissions, are 
 evidence against himself, tliough such admissions may involve 
 what must necessarily be contained in some deed or writing, (/t-) 
 The reason why such parol statements arc admissible, without 
 notice to produce, or accounting for the absence of the written 
 instrument, is that they are not open to the same objection which 
 belongs to parol evidence from other sources where the written 
 evidence might have been produced, for such evidence is excluded 
 from the presumption of its untruth, arising from the very nature 
 of the case, where better evidence is withheld ; wdiereas, what a 
 party himself admits to be true, may reasonably be presumed to 
 be so. (Z) And such an admission is legal evidence, not as 
 secondary evidence of the contents of a Avritten in.strument, but as 
 original evidence, (m) And the principle is the same, whether the 
 admission is by words or by acts : and a man may by his acts make 
 an admission as clearly and as much in detail as lie possibly could 
 by Avords. (n) 
 
 If the fact of the occupation of land is alone in issue, without 
 respect to the terms of the tenancy, this fact may be proved by any 
 competent oral testimony, such as payment of rent, notwithstanding 
 it appears that the occupancy was under an agreement in writing ; 
 for here tlie writing is only collateral to the fact in question, (o) 
 But if any of the terms of the tenancy, as, for example, who is the 
 lessor, or what is the rent, or what rent is due, (})) are in issue, and 
 it appears that there was a written contract for the tenancy, such 
 contract must be produced (q) But the statements made by a 
 tenant of the terms ujDon which he is actually holding the premises, 
 are admissible against him in order to proAC the terms of his 
 tenancy, though the tenancy was created by adopting the terms 
 of a foimer demise in writing. (;•) 
 
 So the fact that a person is employed as a servant under a 
 written agreement may be proved without its production, but not 
 the terms of it. (.s) 
 
 (j) Ibid. 301, 7th ed. See Heuinan r. 
 Le.stor, 31 L. J. C. P. 366. 
 
 (k) Per Parke, B., Slatterie ?■. Poolev, 
 6 M. & W. 664. Tupper r. Folkes, "9 
 (-". B. (N. S.I 797. 
 
 (/) Per Parke, B., Slatterie r. Poolev. 
 Erie r. Pickeii, 5 C. & P. 54-2, Parke, B. 
 
 (m) Per Patteson, J., Keg. v. Basing- 
 stoke, 14 Q. B. 611. 
 
 («) Per Coleridge, J., iliid. lu this 
 ease it was held that the iiayment of 
 relief to a pauper whilst resident in one 
 parisii by the overseers of another parish 
 lor several years, after a threat bv the 
 
 overseers of the former parish to remove 
 the pauper, unless a certificate was ob- 
 tained, was an admission that a certificate 
 had been obtained. 
 
 (o) Greenl. Kv. 100. Rex r. The Holy 
 Trinitv, Kingston-upon-Hull, 7 B. & (.'. 
 611 ; 1 M. & 1{. 444. 
 
 ( p) Augustien v. Challis, 1 Esch. II. 
 279. 
 
 (q) Rex V. Rawden, 8 B. & C. 70S. 
 Rex V. .Merthvr Tidnl, 1 B. & Ad. 29. 
 Doe v. Harvey, 8 Bing. R. 239. 
 
 (;•) Howard i: Smith, 3 M. & Gr. 255. 
 
 (^^ Ret;, r. Duffield, 5 Cox, C. C.
 
 CHAP. I. § III.] Of Hearsay Evidence. 349 
 
 Inscriptions on walls, and fixed tables, mural monuments, grave- inscription.s 
 stones, surveyors' marks on boundary trees, as they cannot be on walls, &c. 
 conveniently produced in court, may be proved by secondary 
 evidence, {t) Such exceptions are in cases where the material oii 
 which the document is written is not easily removed ; as in the 
 case of things fixed to the ground or to the freehold, for the law 
 does not expect a man to break up his freehold for the purpose of 
 bringing a notice into court. But that ground of exception docs 
 not apply to the case of a notice painted on a board, fastened by 
 a string to a nail in a wall, as there could be no difficulty or incon- 
 venience in removing the board from the nail on which it was 
 hung, and producing it in court, {ii) Where on an indictment for 
 murder, the point was very much argued Avhether the inscription 
 on a coffin-plate could be given in evidence without producing the 
 coffin-plate itself, Maule, J., held that it could not, because the 
 presumption was that it was in existence, (y). 
 
 On an indictment for bigamy, it has been held that a photograph Photograph, 
 taken from the prisoner, who said it was that of her first husband, 
 might be shown to a witness, and he might be asked whether it 
 represented the man, whom he had seen married, {iv) 
 
 Sec. III. 
 
 Of Hearsay Evidence. 
 
 There is no rule in the law of evidence moru iinpi)rtant or more General i ale 
 frequently applied than the general one, that hearsay evidence of ^^^^ heai-say 
 a fact is not admissible. If any fact is to be substantiated against fnadmi&siblc. 
 a person, it ought to be proved in his presence by the testimony of 
 a witness sworn to speak the truth ; and the reason of the rule is, 
 that evidence ought to be given under the sanction of an oath, and 
 that the person who is to be affected by the evidence may have an 
 opportunity of interrogating the witness as to his means of know- 
 ledge, and concerning all the particulars of his statement, (.t) 
 
 And the same rule applies to the written statements of either Au.l so also 
 livino- or deceased persons. Where, therefore, after the death of '""^ """f "^ 
 one Stuart, a tin case contaming papers was delivered by a ser- 
 vant to their master ; and one of these papers was indorsed in 
 Stuart's handwriting, ' My own private affiiirs,' and it contained a 
 paper purporting to be a certificate of the minister and elders of 
 the kirk session at Canongatc in Kdinljurgh, and gi\'en by them to 
 Stuart. It was usual for the minister and ciders of the kirk ses- 
 sion, when a person left the congregation to give a certificate to en- 
 able him to be admitted iiito any other congregation. A book con- 
 taining the minutes of the kirk session of their transactions was also 
 
 404. Keg. r. KuwLuhIs, 5 Co.v, C. C. was adiiiissilili-, liecause it isoiily avisibji- 
 
 415 {h). representation of tlie inia;;e or ilnprcssion 
 
 {<) Greenl. Ev. lOG, citing Doe il. made upon tlie minds of tiie \vitiies.se.s by 
 
 Coyle V. Cole, 6 C. & P. 3."i!), I'atteson, the sight of the pi-rson, or tlie objeet it 
 
 J. " Eex V. Fursey, G V. k P. ST. represents ; and, tlii-refore, is in "reality 
 
 {u) .Jones r. Tarlelon, 1 Howl. 1*. II. only another species of the evidence, 
 
 (X. S.) 625, It M. & W. 675. wliieh persons give of identity when tliey 
 
 (r) Anonymous, stated by Maule, J., sjieak merely from memory. ' 
 
 in Ueg. V. llinley, 1 Cox, C. C. VI. (r) 1 Phil. Kv. 2-J'.), 7th cd. ; 'J(i6. ntli 
 
 (iv) Reg. ('. Tolson, 4 F. & F. 103. ed. 
 "Willes, J., who said, 'The photograiih
 
 850 
 
 Of Evidence. 
 
 [book VI. 
 
 Where words 
 amouut to 
 nets. 
 
 Hearsay part 
 of tlic trans- 
 action, or jr** 
 ycsta. 
 
 ))n>(Uifc(l,;ui(l the session ck-rk ()rr!aiioii<(n<o was cilled to provctliat 
 lie lifid IriiniL llio liaii(l\\ritiii<r of the parties who hail signed the 
 eiTlilieate hy looUinj^^ at tlie miuutes in the Ijook. It was ohjeetod 
 tliat the witness coidd not be permitted to look at the book in 
 order to become ac(piainted witli the liandwriting therein ; 2nd, 
 that the book itself was not evidence, and coidd not be used for 
 any piirj)ose ; .3rd, that the certificate itself would not be evidence 
 even if the signatures to it were proved ; 4th, that as tlie servant 
 who delivered the ))apcrs to the master was not called, there was 
 no proof that the certificate had ever been in Stuart's possession ; 
 oth, that the indorsement on the paper containing it was inad- 
 missible, and that all it showed was that one paper had once 
 been in his presence ; and it Avas held that the certificate was 
 inadmssible. (y) 
 
 There arc, however, certain instances, which it will be the object 
 of this section to point out, where hearsay evidence is admissible, 
 because cither the ol)jection does not apply, or from the necessity 
 of the case the rule is relaxed. 
 
 Many things which pass in words only arc really acts, and are 
 therefore admissible. Such are all contracts by jiarol. So is a 
 claim to land or goods. (-.) So directions given by words are 
 admissible. («) 
 
 AVhcn hearsay is introduced, not as a medium of proof in order 
 to establish a distinct fact, but as being in itself a part of the 
 transaction in question, it is then admissible ; for to exclude it 
 might be to exclude the only evidence of which the nature of the 
 case is capable, (h) Thus in Lord George Gordon's case, on a 
 prosecution for high treason, it was held that the cry of the mob 
 might be received in evidence as part of the transaction, (e) And, 
 generally speaking, declarations accompanying acts are admissible 
 in evidence as showing the nature, character, and object of such 
 acts, (d) Thus, where a person enters into land in order to take 
 advantage of a forfeiture, to foreclose a mortgage, to defeat a 
 disseisin, or the like ; (e) or changes his actual residence, or is upon 
 a j(.)urney, or leaves his home, or returns thither, or remains 
 abroad, or secretes himself, or, in fine, does any other act material 
 to be understood ; his declarations made at the time of the trans- 
 action, and expressive of its character, motive, or object, are re- 
 garded as ' verbal acts indicating a present purpose and intention,* 
 and are therefore admitted in proof like any other material fact.s. 
 They are part of the res gesta'. (/) Thus, where a constable, Avho 
 
 (.y) Keg. V. Barber, 1 C. & K. 434. 
 (Uiruey, 13., "Williams, J., aud Jlaiile, J. 
 The statement iu the text is more accu- 
 rate than that in C. & K. The judges 
 did not intimate the ground on which the 
 eertiticatc was inadnii^sililc. 
 
 (:) Ford r. Klliott, 4 Exch. R. 78. 
 Ixolfe, ]>., 'A claim may be manifested 
 hy words as well as acts. Whether it 
 he liy words or otlicrwise seems to me to 
 he perfectly immaterial.' Aldei-son, B., 
 'If I wore to say "Take these goods 
 away," and put them into your hand, 
 that would clearly he an act. ' 
 
 (rt) Keg. r. Wilkins, 4 Cox, C. C. P2, 
 wliere Erie held that a witness n)iirht 
 
 ])rovc that he made iniiuiries, aud iu con- 
 sei^uence of dii'cctions given him in 
 answer to those inquiries lie followed the 
 prisoners until he apprehended them. 
 
 (/') Kosc. Ev. 30. 
 
 (c) 21 How. St. Tr. 533. 
 
 {rl) 1 Stark. Ev. 51, 87, 8S, SD. 
 
 {r) Co. Litt. 49 b, 245 b. Kobiuson r. 
 Swett, 3 Grccnl. 316. 3 Bl. Com. 174, 
 175. 
 
 ( f) Oreenl. Ev. 120, citing Bateman 2'. 
 Bailey, r> T. R. 512. Eawsou r. Haigh, 
 2 Bingli. K. 99. Newanan v. Stix-tch, 
 M. & il. 33S. Kidley v. C.ydc, 9 Bing. 
 349. Smith v. Cramer, 1 Bing. N. C. 
 5S5. Goiiliam i: Cantou, 5 Grccnl. 26t>.
 
 CHAR 1. § III.] Of Hearsay Evidence. 351 
 
 was indicted for a forcible entry into a house, Lad searched tlie 
 house, having a warrant in his hand, Lord Tenterden, C. J., held 
 that what he said at the time as to who he was searching for, Avas 
 admissible, although the question was asked by his counsel, and 
 the answer might be in his favour. (/) But where the prisoner, 
 who was indicted for burning a bible, had employed some boys to 
 take books to a place where they were burnt by his direction, it 
 Avas held that what a person, who first appeared when the burning 
 Avas going on, said at the time he tore up a book and thrcAV it 
 into the hre Avas not admissible, as there Avas no common object 
 proved between him and the prisoner, {g) 
 
 Upon an indictment for the murder of Harriet Louisa Lane, a 
 Avitness, named Ellen Willmore, Avas called. The Avitness Avas the 
 person who had last seen Harriet Louisa Lane on the afternoon of 
 the 11th of September, 1874, Avhen the latter left her lodgings at 
 8, Sydney Square, Mile End. After that date Harriet Louisa Lane 
 was not seen again alive, and that Avas the date fixed upon by the 
 prosecution as the time Avhen the murder was perpetrated. The 
 Avitness, having described Avhat occurred at the parting betAveen her 
 and Harriet Louisa Lane on that afternoon, Avas asked Avhether 
 Harriet Louisa Lane, at the time of her departure from the house, 
 made a statement to her. In answer to an objection made by the 
 prisoner's counsel to a question which he anticipated Avould folloAv 
 upon this, Cockburn, C. J., said, ' All that is proposed to ask now 
 is the question, "When going aAvay did she make a statement ? " 
 That question can be jDut, but not the question, " What statement 
 did she make ? " The cpiestion at present only goes to the extent 
 of ascertaining Avhether a statement Avas made, and there it stops ; 
 but I agree that if it Avent further, to the extent of inquiring Avhat 
 was the statement, it Avould be inadmissible. You are constantly 
 meeting Avith such a question, " Did so-and-so make a statement 
 to you, and, in consequence of that communication, did you do any- 
 thing?" The fact that some statement Avas made is undoubtedly 
 admissible.' The Attorney-General, Avho appeared for the prose- 
 cution, then said, ' The Avoman is leaving her house Avhen slic 
 makes a statement, Avhich is a declaration of intention, and it is 
 submitted that that is a statement accompanying an act. It is 
 part of the act of leaving, and on that ground it is proposed to ask 
 the question to Avhich objection has been made. Cockburn, L'. J., 
 ' It Avas no part of the act of leaving, but only an incidental 
 remark. It Avas only a statement of intention, which might or 
 might not have been carried out. Slie Avould have gone away 
 under any circumstances. You may get the fact that on leaving 
 she made a statement, but you must not go beyond it.' {(j<j) 
 
 Fdlowcs r. Williamson, M. it M. Dn(3. Iho .sco[)c ol' his autliorily ; Imt it .sl'cimm 
 
 Vacher v. Cocks, M. & i\l. Zoo, 1 15. k eiiiuilly inlniissiblc, as a ilcdaiation ac- 
 
 Ad. 115. tdiiiliaiiyiiif,' the act of payincnt, and ex- 
 
 (/) Ilex c. Smyth, .'5 C. it I'. 'JOl. planatory of the i>uiposc oFlhi- pavnicnt. 
 
 And see 1 Stark. Ev. (32, 350, 351. AVal- C. S. G. See K. v. Edwards, I'J Cox, C. 
 
 ters V. Lrwis, 7 C. & V. 34 1. AVhcrc an C. 230. 
 
 agent ]K(id iiunicy into n linnk, I. itll.'dalc, (-/) IJeg. r. ri'lclierini, 7 Cox, C. C. 
 
 .1., held tlial what he s;iid ahout the money 7S, Crampton, .1.. and Creeiie, \\. It 
 
 at the time he paid the money into the seems clear that the acts of the person 
 
 bank was admissilde. IJeg. r. Hall, 8 C. were inadmissible on the same ground. 
 &P. 858. The learned Judge admitted (ijij) li. c. Waiuwright, 13 Cox, C. C. 
 
 the evidence, ou the ground that it was 171, Cockhurn, C. .1. A similar ohjec- 
 
 a declaration hy an agent acting within tion to the above was taken to certain
 
 :352 
 
 CoiniilikinUs «\ 
 injuriv><. 
 
 Of Evidence. 
 
 [book vr. 
 
 Rolibcrj' ami 
 rape. 
 
 Ill ail action l)y a Imsbaiid and wife for wounding tlio wife, Lord 
 (.'. .1. Holt allowed wliat tlic wife said iniincdiatdy npou tlie liurt 
 received, and before slie liad time to devise anytliin<f for lier own 
 advantage, to be given in evidence as part of tlic rf'» fjcuta'. (//) So 
 on an indictment for manslaiigliter, in killing a party by driving a 
 caliriolet over liim, it lias been hold that a statement made by the 
 deceased immediately after the accident, as to the cause of the 
 accident, is admissible, (i) And Lawrence, J., said, in Aveson v. 
 Lord Khivdi 1(1, {]) that it is in every day's experience, in actions 
 of assaidt, that what a man has said of himself to his surgeon is 
 evidence to show what he suffered by the assault. Intjuines of 
 patients by medical men, with the answers to them, are evidence 
 of the state of health of the patients at the time ; and what were 
 the symptoms, what the conduct of the party themselves at the 
 time, are always received in evidence upon such inquiries, and 
 must be resorted to from the very nature of the thing. (/.:) So a con- 
 versation as to the state of the health of a deceased person, between 
 him and a witness, is admissible to prove that he was in good 
 health at the time. (/) So on a prosecution for robbery, it has 
 been held, that the fact of the party roblcd making a complaint 
 to a constable shortly after the robbery, and mentioning the name 
 of a person, as the name of one of the persons who had robbed 
 him is admissible, but not the name so mentioned, {rii) So on a 
 
 evidence of a like kind preferred on Le- 
 lialf of the proseeution in the case of Keg. 
 V. YooV, tried before Lord Chief Justice 
 ]?ovill, at the Old Hailey Sessions, on 
 the 15th of July, 1871, and reported in 
 the Sessions Paper of that date. There 
 the jn-isoner was charged with the wilful 
 murder of Jane Slaria Clousen. The 
 murder Avas committed on the night of 
 the 25th or the morning of the 26th of 
 April, 1871, at P^ltham. The deceased 
 was discovered in a dying state in Kid- 
 brooke Lane. She had lived in the 
 prisoner's family, and suspicion attaihcd 
 to him. One of the witnesses, Fanny 
 Hamilton, who was called by the prose- 
 cution, i)rovcd that for ten days prior to 
 the 25th of April the deceased had lodged 
 in her house, that on the evening of that 
 day she went out in her company, and 
 that after walking about for some time 
 they parted, when the deceased told her 
 where she was going. It was 'proposed 
 by the counsel for the prosecution to a.sk 
 the ciuestion, '"What did she say to you .'' 
 To this the counsel for the prisoner 
 olijected, on the ground that whatever 
 •was said was said in the prisoner's ab- 
 sence, and he had no means of cross- 
 examining upon it. It was thereupon con- 
 tended by the counsel for the prosecution 
 that it was a declaration so fiir accom- 
 jxxnying the act itself as to render it part 
 of tile res grstw, and he cited in sujiport 
 of his contention the case of Hardley r. 
 tarter, reported, 8 New Hampshire Ke- 
 ports, American Eeports ; and at the 
 termination of the arginnent the Loixl 
 (.'liief Justice refused to permit the ([ucs- 
 
 tion to be i)Ut. See 13 Cox, C. C. 172. 
 note. 
 
 (/() Thompson r. Trevanion, Skin. 
 402, cited by Lord Ellenborongh, C. J., 
 in Aveson r. Lord Kinnaird, 6 East, 
 193. 
 
 (/) Kex r. Foster, 6 C. & P. 325, 
 Park, J. A. J., Patteson, J., and Gur- 
 ney, B. 
 
 (j) 6 Fast, 193. 1 Phil. Ev. 191. 
 
 (k) By Lord Ellenborongh, C. J., 6 
 East, 195. 'AVhen a ]>atient enters into 
 a history of his complaint, and relates 
 some earlier symptoms experienced at a 
 former period, he is giving a naiTative 
 from memory rather than yielding to the 
 impressions forced upon him by his situa- 
 tion ; and it would seem, upon principle, 
 that what he (so) says ought not to be 
 received in evidence.' 1 Phil. Ev. 19L 
 And 'although it is now .settled that 
 what a patient says to a medical man 
 about his snft'erings is receivable in evi- 
 dence, it .should seem that a statement by 
 him resjiecting the particular cause of his 
 sufferings (as, for example, the circum- 
 stance of an as.sault which he had re- 
 ceived) would be ojKni to gi-eater objec- 
 tion.' 1 Phil. Ev. 192. 
 
 (/) Peg. r. Johnson, 2 C. & K. 354. 
 A complaint by a deceased child of being 
 hungiy, matle in the absence of the pri- 
 sonei-s, was admitted in eWdenee. E. v. 
 Conde. 10 Cox, C. C. 547. This was 
 an indictment for withholding necessjiiy 
 food from a child whereby lie dietl. 
 
 {ill) Pex v. "Wink, ti 'C. & P. S97, 
 Patte.srn, J. It was also held that the 
 constable might be asked whether in con-
 
 CHAP. I, §111.] Of Hearsay Evidence. 353 
 
 prosecution for a rape, it has been held that the prosecutor may 
 prove that the woman made a complaint recently after the in- 
 jury : (n) so it has also been considered allowable, on an indictment 
 for an assault on an infant of five years old, with intent to ravish 
 her, to give evidence of the child's having complained of the injury 
 recently after it was received, (o) But the particulars of such a 
 complaint are not admissible in evidence on the part of the prose- 
 cution, (p) It is not, therefore, competent, on the part of the 
 prosecution, to ask what name the prosecutrix mentioned at the 
 time she made such a complaint, (g) And although what the 
 prosecutrix said at the time of the committing the offence would 
 be receivable in evidence, on the ground that the prisoner was 
 present, and the violence going on, yet, if the violence was over, 
 and the prisoner had departed, and the prosecutrix had gone on 
 running away, crying out the name of the person, it would not be 
 evidence, (r) 
 
 The fact of the prosecutrix having made a complaint is only 
 admissible for the purpose of confirming her testimony; in case, 
 therefore, of her death, or absence from any cause, neither the 
 particulars of the complaint, nor the fact of such complaint having 
 been made, are admissible in evidence, (s) 
 
 On a charge of larceny, where the proof against the prisoner is, 
 that the stolen property was found in his possession, it would be 
 competent to show, on behalf of the prisoner, that a third person 
 left the property in his care, saying he would call for it again 
 afterwards ; for it is material in such a case to inquire under 
 what circumstances the prisoner first had possession of the pro- 
 perty. (0 . 
 
 Where a witness had had a conversation with a prisoner about Conversatiou 
 arsenic, but could not fix the time when this happened, it was g^™' j^^ *° 
 held that an observation respecting this conversation made by 
 the witness after the prisoner left to a person in the shop at the 
 time, might be proved by that person, in order to fix the time 
 when the conversation took place. (^^) Where a prosecutor had 
 
 sequence of the prosecutor mentioning a {n) Rex v. Clarke, 2 Stark. N. P. C. 
 
 name to him, he went in searcli of any 242. Such evidence is now considered 
 
 person, and who that person was ; but in quite essential in order to support the 
 
 Eeg. V. Osborne, C. & M. 622, this point statement of the prosecutrix. C. S. G. 
 
 was questioned by Cresswell, J., who (o) 1 East, P. C. c. 10, s. 5, p. 4-14. 
 
 said, ' It seems to me to be rather too re- Vol. 1, p. 874. 
 
 fined a distinction to prevent the name (;>) 1 Phil. Ev. 193, vol. 1, p. 8C>7, 
 
 from being mentioned, and yet to permit note (c). 
 
 it to be asked whether in conse<iuence of (7) Heg. v. Osborn, C & ^F. 622, 
 
 what was said the witness apprehended a Cresswell, J. But the counsel for the 
 
 particular person. I think you ought prisoner may, if he thinks lit, ask the 
 
 not to go so far as that.' But where, on prosecutrix as to tlie terms of the com- 
 
 a trial for murder, it was proved that a ])laint, and if he does so, the counsel for 
 
 shout was heard, and a witness went out tlie jirosecution has a right to examine 
 
 of her house and saw th(^ deceased, who as to all tliat was said by her in the same 
 
 seemed very weak and injured, and the conversatiou. C. S. G. 
 
 moment she came up to him she asked (r) Per Cresswell, J., Reg. i-. Osborne, 
 
 him what was the matter; Monahan, supra. 
 
 C. J., held that the witness might add, (.s) Reg. v. Mcgson, \) C. & P. 420, 
 
 * he said he was robbed by the man who Rolfe, B. Reg. i: Guttridge, 9 C. & P. 
 
 walked with him fmm the cross roads,' 471. Parke, B., vol. 1, p. 868 ; 1 Phil, 
 
 on the ground that this was part of the Ev. l'.)3. 
 
 rm ges/a\ Reg. v. Lunny, 6 Cox, C. C. (l) 1 Pliil. Ey. 234, 7tli ed. 
 
 477. This case deserves reconsideration. («) Reg. r. Hichanlson, 1 Cox, C. ('. 
 
 See vol. 1, p. 867. 361. Loi-dDenman, C. .I.,and Alderson,B. 
 
 VOL. in. A A
 
 354 
 
 Of Evidence. 
 
 [r.ODK 
 
 VI. 
 
 to oxpliiin 
 comluct. 
 
 Ti'Htiinony of 
 a (Id'ciisctl 
 witness at a 
 former trial. 
 
 Depositions. 
 
 Dying declara- 
 tions in cases 
 of homiciilc. 
 
 The declara- 
 tions must be 
 made under a 
 sense of im- 
 pending death. 
 
 for tliroo (lays concoalcd ;i, l)iir<;l;iry cornniittod in liis lioiise, f'ear- 
 
 )f 
 
 the priHoiuTs ; Erio, J., held tliiit his wife 
 
 he told me not to tell of il ; he said lie was 
 
 with his horses, and should not l>e safe ;' for 
 
 exphiin a man's conduct arc admissible in 
 
 in<;- the vengeance 
 might prove that 
 out late at night 
 conversations that 
 evidence, {r) 
 
 If there hail been a pnivioiis criminu! prosecution between the 
 same parties, and the point in issue was the same, the testimony 
 of a deceased witness given upon oath at the former trial is ad- 
 missible on the subsequent trial, and may be proved by one who 
 heard him give evidence ; {w) but the witness must speak to the 
 very words, and not merely swear to the effect of them, {x) ' He 
 ought,' said Lord Kenyon, ' to recollect the very words ; for the 
 jury alone can judge of the effect of words.' {y) In what cases 
 the depositions of a witness before a committing magistrate may 
 be read in evidence at the trial, will be hereafter considered. 
 
 Besides the usual evidence of guilt in general in cases of felony, 
 there is one kind of evidence peculiar to the case of homicide, 
 which is the declaration of the deceased after the mortal blow as 
 to the fact itself, and the party by whom it was conmiitted. {z) 
 The general princiisle on which this species of evidence is admitted 
 is, that they are declarations made in extremity, when the party is 
 at the point of death, and when every hope in this world is gone ; 
 when every motive to falsehood is silenced, and the mind is in- 
 duced by the most powerful considerations to speak the truth ; a 
 situation so solemn, and so awful, is considered by the law as 
 creating an obligation equal to that which is imposed by a positive 
 oath administered in a court of justice, (a) It is therefore evident 
 that declarations, though proved to have been made by a person 
 in a dying state, are not admissible, unless it also appears that the 
 deceased himself apprehended that he was in such a state of mor- 
 tality as would inevitably oblige him soon to answer before his 
 Maker for the truth or falsehood of his assertions. (6) ' It is 
 essential to the admissibility of these declarations, and is a pre- 
 liminary fact to be proved by the party offering them in evidence, 
 that they were inade under a sense of ivipending death; (c) but 
 
 (v) Reg. V. Glandfield, 2 Cox, C. C". 43. 
 
 (w) Kex V. Carpenter, 2 Show. 47 ; 2 
 Hawk. P. C. c. 46, s. 29 ; 1 Phil. Ev. 
 337 ; aud Sir. Starkie's note to Rex v. 
 Smith, in the second volume of his Re- 
 ports, p. 211. 
 
 (x) Lord Pahnerston's case, cited by- 
 Lord Kenyon in Kex r. JoUiffe, 4 T. R. 
 290. 
 
 ((/) Ennis v. Donisthome, IIS. 1 Phil. 
 Ev. 231, 7tli ed. By this it is conceived 
 his lordship meant, uottliat the witness's 
 testimony would go for nothing, unless he 
 could swear positively they were the very' 
 words used by the deceased, and no 
 other ; but that the present witness ought 
 to say, ' To the best of my ret-ollection 
 these were the very words used.' 
 
 (z) 1 East, P. C. c. 5, s. 124, p. 353. 
 
 (n) Pi-r Eyro, C. B., in ^Voodcock's 
 ca.sc, 1 Leach, 500. 
 
 (/.) Per Eyre, 1(? B., ibid. 
 
 (c) R. r. Forester, 10 Cox. C. C. 368, 
 4 F. & F. 857. Smith's case, 1 Lew. 81. 
 Ashton's case, 2 Lew. 147. iliuton'a 
 case, 1 M-Xallv, Gr. 386. R. r. Howell, 
 1 Den. C. C. 1 ;' 1 C. & K. 689, where per 
 Lord Denman, C. J., 'We all think the 
 civse beyond all doubt. Dauger existed. 
 The deceased clearly thought he was 
 dying, and had no hope of recovery. 
 There is uo ground for holding his de- 
 claration inadmissible. R. v. Thomas, 
 
 1 Cox, C. C. 52. R. V. Peel, 2 F. & F. 21, 
 where per "Willes, J., 'It must be proved 
 that the man was dying, and there must 
 be a settled hopeless expectation of death 
 in the declarant. There does appear 
 to have been such au expectation in this 
 case, and I shall therefore admit the de- 
 claration. R. V. Brooks, 1 Cox, C. C. 6. 
 R. r. Taylor, 3 Cox, C. C. 84. K. v. 
 Moonev, 5 Cox, C. C. 318. K. ( . Clearv, 
 
 2 F. &F. 850.
 
 CHAP. 1. § III.] Of Hearsay Evidence. 355 
 
 it is not necessary that tliey should be stated at the time to be so 
 made ; it is enough if it satisfactorily appears, in any mode, that 
 they were made under that sanction, whether it be directly proved 
 by the express language of the declarant, or be inferred from his 
 evident danger, or the opinions of the medical or other attendants, 
 stated to him, or from his conduct, or other circumstances {d) of 
 the case ; all of which are resorted to in order to ascertain the 
 state of the declarant's mind. The length of time which elapsed 
 between the declaration and the death of the declarant furnishes 
 no rule for the admission or rejection of the evidence, though, in 
 the absence of better testimony, it may serve as one of the expo- 
 nents of the deceased's belief that his dissolution was or was not 
 impending. It is the impression of almost immediate dissolution, 
 and not the rapid succession of death in point of fact, that renders 
 the testimony admissible. Therefore, where it appears that the * 
 
 deceased, at the time of the declaration, had any expectation or 
 hope of recovery, however slight it may have been, and though 
 death actually ensued in an hour afterwards, the declaration is • 
 
 inadmissible.' (e) 
 
 Any hope of recovery, however slight, existing in the mind at Any hope of 
 
 the time of the declarations made, will render the declarations '"^co^^ery 
 
 •1 . .11 , J,. j-enders a ae- 
 
 inadmiSSlble. (/ ) claration iiKul- 
 
 In Hex V. Van Butchell, (g) Hullock, B., said, ' The principle mi.-sible. 
 on which declarations in articulo mortis are admitted in evidence, 
 is, that they are made under an impression of almost immediate 
 dissolution. A man may receive an injury from which he may 
 think that he shall ultimately " never recover," but still that would 
 not be sufficient to dispense with an oath. I must reject the 
 evidence.* 
 
 On a trial for murder, it appeared that the declaration of the 
 murdered woman was taken by tiie magistrate's clerk on the night 
 of the 17th of October. She was then breathing with considerable 
 difficulty. She had been thrown into a river the night before, but 
 was rescued in an exhausted condition. She continued ill and in 
 great danger, and during the day had desired that some one should 
 pray with her. In answer to the magistrate's clerk she said site 
 thought she was likely to die. She was sworn, and before her de- 
 claration was completed, in answer again to the magistrate's clerk, 
 she said that she had the fear of death before her, and had no pre- 
 
 {d) K, V. Bouncr, 6 C. & P. 386, doctor, 1 shall never get better,* and 
 
 John's case, ?ws«, 358. shortly afterwards died. Hullock, B., 
 
 (e) Greenl. VW. 189. 1 Phil. Ev. 285. held that an areount given by the de- 
 
 In Woodcock's case, 1 Leach. 5(10, the ceased to the doctor after this declaration 
 
 declarations were made forty-eight hours was receivahle as a dying declaration, 
 
 before the death. In Tinkler s case, 1 although several weeks before his death, 
 
 East, P. C. 354, some of them were and stated that the subject had been 
 
 made ten days before the death. In Rex lately before the judges, and his mind 
 
 V. ilosley, P. & M. C. C. U. 97, they was made uii about it. 
 were maile eleven days before the death. (f) I!, v. Welbourn, 1 E;ist, 1'. (.'. c. 5, 
 
 In lle.K V. Bonner, 6 V. & P. 386, s. 12-1, p. 358. Pe.\ r. Crockett, 4 V. & 
 
 they were made three days before death ; P. 544. Kex r. Christie, Carr. Supp. 
 
 and were all received. In Hex v. Van 202. R. v. Hay ward, (5 C. k P. 157. 
 
 Butchell, iiij'ra, they were made .seven Wilson's case, 1 Lewin, 78. Errington'a 
 
 days before the death and rejected. case, 2 Lew. 1 48. Simpson's case, 1 Lew, 
 
 See R. V. Bernadotti, 11 Cox, C, C. 316. 78. R. v. Spilsbury, 7 C. & V. 187. K. 
 
 In Craven's case, 1 Low. 77, a person r. Megson, 9 C. & 1'. 418. R. r. Fagent, 
 
 who had been confined to his lied for 7 C. & 1'. 238. 
 weeks, said to the surgeon, ' I am afraid, (g) 3 C. & P. 629.
 
 356 Of Evidence. [book vi. 
 
 scut liope of recovery. The declaration wa« put into writing and 
 rcatl over to lior, and she "was asked to correct any raistake ; it was 
 written (h)wn : ' I liave made the above statement with the fear of 
 death Icforc mo, and witl) no hope of my recovery.' She then said^ 
 ' N(» hope at ])roscnt of my recovery.' The clerk thereupon inserted 
 the worils ' at present.' Siie died the la-xt morning. The declara- 
 tion was admitted in evidence at the trial. Held, that, under the 
 above circumstances, the declaration so taken was inadmissible, 
 inasmuch as the conduct and acts of the deceased renderefl it at 
 least doubtful whether she was under an unqualified belief that 
 death was immediately impending and absolutely devoid of hope of 
 recovery ; and the conviction was quashed, (/i) 
 
 Where a constable proved that from appearances I should judge 
 that the deceased was dying. He was making his statement to me 
 ' about a quarter of an hour. I believe he knew he was dying. I 
 
 cannot recollect that he said anything about dying before he began 
 his statement. As he finished, he said, ' Oh God ! I am going fast; 
 I am too far gone to say any more.' The deceased died a few hours 
 afterwards of a wound in the abdomen that penetrated the 
 stomach. Cresswell, J., having consulted Williams, J., said, ' My 
 brother Williams confirms the doubts I had on this subject ; that 
 it being possible the man did not discover the extent of bis 
 weakness till he had made the statement, and that it was only 
 after he had made it he for the first time discovered that he was 
 going fast ; there is not, consequently, that clear ascertainment of 
 his consciousness of his state, before he made it, to render it ad- 
 missible, {i) 
 There need not In order to render a statement admissible as a dying declara- 
 be an aj.pre- tion, it is necessary that the person who makes it should be under 
 hension of ^^^ apprehension of death ; but there is no necessity that such 
 
 certMinVum- apprehension should be of death in a certain number of hours or 
 ber of days or days. The question turns rather on the state of the person's 
 hours. mind at the time of making the declaration than upon the interval 
 
 between the declaration and the death, (h) Where, therefore, the 
 deceased made a declaration on the 23rd of October, concluding, 
 ' I have made this statement believing I shall not recover,' and at 
 that time the deceased was in a state, from the injuries that he had 
 received, from which it was impossible that he could recover. His 
 spine was broken, so that death must speedily follow, and he died 
 on the 3rd of November ; and the doubt as to the admi.ssibility 
 of the declaration was raised by a witness, who proved that, shortly 
 before the deceased made the statement, he asked him how he 
 was, and the deceased answered, ' I have seen the surgeon to-day, 
 and he has piven me some little hope that I am better ; but I do 
 not myself think I shall ulthnatdy recover ;' and that before he 
 left the room, on the same occasion, the deceased said that he 
 could not recover ; but it was held on a case reserved, that the 
 
 (70 R. r. Jenkius, 38 L. J. M. C. 82, (0 Reg. v. Nicolas, 6 Cox, C. C. 120. 
 
 et per Kelly, C. B. The .iudge must The statement was, however, afterwards 
 
 be perfectly satisfied beyond a reason- received, the counsel for the prisoner 
 
 able doubt that the declarant was under withdrawing his objection to it 
 
 the belief that no hope of recovery {k) Per Pollock, C. B., Reg. r. Reaney, 
 
 e.xisted. R. r. Qualtcr, 6 Cox, C. C. infra. 
 357.
 
 CHAP. T. § in.] Of Hearsay Evidence. 
 
 declaration had been properly admitted. The deceased was so 
 injured, his status was such that he could not possibly recover, 
 and his own opinion was that he could not recover ; and in a case 
 like this, where there was an injury to the spine, he was probably 
 a more competent judge of his state than the doctor, he had no 
 hope, though the doctor had held out hopes, and before the wit- 
 ness left the room he said that he could not recover. That was 
 his own opinion of his case, and the impression on his mind was 
 that death was impending. {I) 
 
 It is not necessary that the deceased should express any appre- 
 hension of danger ; for his consciousness of approaching death may 
 be inferred, not only from his declaring that he knows his danger, 
 but from the nature of the wound, or state of illness or other cir- 
 cumstances of the case. And if it may reasonably be inferred from 
 the nature of the wound, the state of illness and other circum- 
 stances, that the deceased was sensible of his danger, his declara- 
 tions are admissible, (m) 
 
 A surgeon found a transverse wound across the throat of the de- 
 ceased, which had passed through the trachea, and the point of the 
 instrument had reached the vertebrae. Thi'ee days afterwards she 
 stated to the surgeon that she did not think she should recover. 
 He considered her in danger, but had a hope she would recover. 
 To the nurse who attended her, she had repeated several times, 
 both before and after the surgeon had seen her, that she should die. 
 The nurse told her she thought she would get better. She said she 
 thought she would, if the surgeon could see in her throat as he 
 could see on her hands. This she said many times, and all day she 
 said she should get better if it was not for her throat. The surgeon 
 spoke cheerfully to her, and she appeared cheerful after that, and 
 in better spirits. She got a little better, and was easier after the 
 surgeon dressed the wounds. A magistrate saw her, and told her 
 of her conlition, and that she was in very great danger. He re- 
 peated two or three times, in various forms, something of the same 
 kind — that she was likely to die ; that she might die ; and added, 
 'I hope it may please Almighty God to bring you round, but I be- 
 lieve you are in great danger. I think it very possible this will end 
 fatally with you. I am come to hear you, and whatever you say, 
 should you die, will be produced in evidence on the trial of the 
 prisoner. You must therefore tell me the truth, and nothing but 
 the trutli, without any fear or reserve.' She said nothing. He 
 then said, ' It would be a very sad and awful thing for you to go 
 into the presence of your Maker, having told me anything, in your 
 present situation, which is false.' From her not having said any- 
 thing to him, he told her he should administer an oath to lier, 
 
 357 
 
 The deceased 
 need not ex- 
 press appre- 
 hension of 
 
 Questions as 
 to whether a 
 declaration 
 was spon- 
 taneous and 
 under an im- 
 pression that 
 no hope of 
 recovery 
 existed. 
 
 (l) Keg. V. Reaney, D. & B. 151. 
 Wightman, J., said, ' The statement must 
 have been made under an impression 
 upon the mind of the person making it 
 that his deatli wa.s about to happen 
 shortly, or, to use the expression found 
 in the books, that his death was impend- 
 ing : that, however, is a relative term, 
 and does not, of course, import merely 
 an expectation that the sufferer would 
 die at some time — for that is the debt 
 which we all owe to nature — but it means 
 
 an exjipctation tlint lii> is about to die 
 shortly of the disease or injuries under 
 which lie is tlien sullVring ; that, in 
 other words, he is without a rexsonable 
 or any hope of recovery. ' 7 Cox, C. C. 
 209. 
 
 ^?«) Jolin's case, 1 East. P. C. c. 5, 
 s. 124, )). 3.57, by the decision of all the 
 judges in 1790. Woodcock'sc:»su, 1 Leach, 
 500. Dingler's case, 2 Leach. 561. Hex 
 V. Bonner, 6 C. & P. 386, Patteson, J. 
 Reg. V. Perkins, 2 Moo. C. C. R. 135.
 
 358 
 
 Of Evidence. 
 
 [liOOK 
 
 VT. 
 
 It is a ques- 
 tion for the 
 judge whether 
 the deceased 
 was in such a 
 state of mind 
 as to make his 
 statements ad- 
 missibk'. 
 
 As to what 
 matters the 
 judge will in- 
 quire. 
 
 Only admissi- 
 hle when the 
 death of de- 
 ceased is the 
 subject of the 
 
 wliicli lie (lid, and by inc^ans of (|ufstions to licr lie got Ikt to tell 
 liiiii, and wliat sliu said was rciluced into writing, and road over to 
 lier ; and lie tlicn said to her, * Now that is perfectly true, and the 
 wliok' truth ?' and she said 'It is.* She then put her mark to it. 
 It was objected that this declaration was not made s[)ontano()Usly, 
 and not muler a sense of immediate and impending death ; 
 but it was held that it must l)e taken on the whole that the 
 statement was spontaneous, and that, lo(;king at her state, and at 
 her expressions, there was not tlie sliglitest hope in her mind of 
 recovery, {n) 
 
 The decision of points of this kind must always rest on the cir- 
 cumstances of each individual case. {(>) It is therefore unneces- 
 sary to refer at length to the nuinerous cases reported on this 
 subject. 
 
 AH the jtulges agrceii at a conference in Easter Term, 171)0, that 
 it ought not to be left to the jury to say whether the decea.sed 
 thought he was dying or not ; for that must be decided by the 
 judge before he receives the evidence, {q) And where on a trial 
 lor murder in Ireland a dying declaration was tendered in evidence, 
 and tlie judge left it to the jury to say whether the deceased knew 
 when he made it that he was at the point of death, the question as 
 to the propriety of the course adopted in that case "W'a« sent over 
 ibr the opinion of the English judges, who answered that the 
 course taken was not the right one, and that the judge ought to 
 have decided the question himself, {r) And such has been the 
 imiform practice in all the recent cases. 
 
 The circumstances, tmder which the declarations were made, are 
 to be shown to the judge, and he will hear all that the deceased 
 has said relative to his situation, and will inquire into the state of 
 illness in which he was ; the opinions of medical and other persons 
 as to his state, and Avhether they were made known to the de- 
 ceased ; the conduct of the deceased in settling his affairs ; in 
 making his will ; giving directions as to his funeral or family ; and 
 whether he had recourse to those consolations and rites of religion, 
 which are appropriate to the la.st sad hours of departing mortality; 
 in a word, into every fact and circumstance which may tend to 
 throw light upon the state of mind of the deceased at the time 
 when the declaration was made, in order the better to enable him 
 to arrive at a satisfactory determination as to whether the evidence 
 be admissible or not. (s) 
 
 It is a general rule that dying declarations, altliough made with 
 a full consciousness of approaching death, are only aihnissible in 
 evidence where the death of the deceased is the subject of the 
 charge, and the circumstances of the death the subject of the dying 
 
 (?i) Keg. V. Whitworth, 1 F. & F. 382. 
 Walson, B., who refused to reserve the 
 point, and the prisoner wa.s executed. 
 
 (o) Keg. V. Dahlias, 1 Cox, C. C. 95, 
 Gurney, B., and AVilliams, .1. It was also 
 held that a conversation was evidence 
 for the inirpose of showing the condition 
 of the deceased when she made the de- 
 claration. 
 
 (7) .John's case, 1 East, P. 'C. c. 5, s. 
 124. p. 357. Wellwurn'scase, ibid. 353, 
 
 S. P., resolved hv all the judges in Mich. 
 Term, 1792. Rex r. Hucks, 1 Stark. 
 N.P. C. 523. R. r. Smith, 10 Cox, C. C. 
 b2, what the declaration is, is for the 
 jury, S. C. per Channell, B. 
 
 (r) JIajor Campbell's case, as stated by 
 Parke, B., in 11 .M. & W. 4S6. 
 
 (s) See Rex r. Van Butchell, ante, p. 
 355, per BoUand, B. Rex v. Spilsburs", 
 7 C. & P. 187, per Coleridge, J.
 
 CHAP. I. § III.] Of Hearsay Evidence. 
 
 declaration, {t) In the case of Rex v. Hutchinson, («) tried before 
 Bayley, J., the prisoner was indicted for administering savin to a 
 woman pregnant, but not quick with child, with intent to procure 
 abortion. The woman was dead, and for the prosecution, evidence 
 of her dying declaration upon the subject was tendered. The 
 learned judge rejected the evidence, observing that, although the 
 declaration might relate to the cause of the death, still such de- 
 clarations were admissible in those cases alone where the death of 
 the party was the subject of inquiry. And so where the prisoner 
 was indicted for using instruments to procure the miscarriage of a 
 woman, her dying declaration was held inadmissible, (v) 
 
 But where two persons died from the same act of poisoning, the 
 declaration of one was held admissible on the trial of the jirisoner 
 for the murder of the other. On an indictment for poisoning King, 
 it appeared that the poison was administered in a cake, which the 
 deceased ate for breakfast; immediately after which he was taken 
 ill, and his maid servant, who was present, and had made the cake, 
 said that she was not afraid of it, and thereupon ate of it, and was 
 in consequence poisoned and died. Her dying declarations (made 
 after she knew of her master's death, and was conscious of her own 
 approaching death) as to the manner in which she had made the 
 cake, and that she had put nothing bad in it, and that the prisoner 
 was present eating his breakfast at one end of the table while she 
 was making the cake at the other end of it, were tendered in evi- 
 dence, and objected to, on the ground that the only person whose 
 dying declarations could be received in evidence was the person 
 whose death formed the subject of inquiry at the trial ; and the 
 preceding case was relied upon. But Coltman, J., after consulting 
 Parke, B., expressed himself of opinion that, as it was all one 
 transaction, the declarations were admissible, and accordingly 
 allowed them to go to the jury ; but he said he would reserve the 
 point for the opinion of the judges, (w) 
 
 The declarations of the deceased are admissible only as to those 
 things to which he would have been competent to testify, if sworn 
 in the case. They must, therefore, in general speak to facts only, 
 and not to mere matters of opinion, and must be confined to what 
 is relevant to the issue, (x) 
 
 The dying declaration of an accomplice is admissible ; (y) but 
 this can only happen where the prisoner is charged with assist- 
 ing in the self-destruction of the accomplice : for it has already 
 appeared that dying declarations arc never admissible, except 
 where the death of the per.son who made them is the subject of 
 the indictment. 
 
 (t) By Abbot, C. J., Rex v. MeaJ, 
 2 15. & "U. (505. In trijils for robbery the 
 dying tloclarations of the party robbeil 
 were held inadmissible by Bayley, J., on 
 the Northern Spring Circnit. 1822, and 
 by Best, J., on the Midland Spring Cir- 
 cuit, 1822. And in Rex v. Lloyd, 4 C. & 
 P. 23.3, by Bolland, H., and in rape. 
 Reg. V. Newton, 1 F. & F. 641, by Hill, 
 J. Drnmmonirs case, 1 Leach, 337, 
 where it was ruled that the dying declara- 
 tion of a convict at the moment of exe- 
 cution was not evidence. Sec the ob- 
 servatious of the Court of Exchequer iu 
 
 Stobartr. Dryden, 1 >[. & W. (il.l, which 
 render it at least very doubtful wlietlier 
 dying declarations would at tiie present 
 day be admissible in any civil suit. 1 
 Phil. Kv. 280. 
 
 (ii) 2 B. & C. 608, in note to Rex v. 
 Mead. 
 
 (v) Reg. r. Mind, Bell, C. C. 2.';.3. 
 
 (ir) Rex V. Baker, 2 AL & l{ob. 53. 
 Tiie prisoner was ac(|uittcd. 
 
 (.r) Greenl. Kv. l!ti». 1 Bliil. Kv. 201. 
 Rex V. S(>llers, Carr. Sujjp. 233. 
 
 (I/) Tinkler's case, 1 East, 1*. C. 354. 
 
 359 
 
 charge, and 
 the circum- 
 stances of the 
 death the sub- 
 ject of the de- 
 claration. 
 
 Declaration of 
 one of two 
 persons dj'ing 
 from the same 
 act. 
 
 Declarations 
 only evidence 
 of facts. 
 
 Of an accom- 
 plice .
 
 3G0 
 
 ( V' Evidence. 
 
 [book vr. 
 
 A jiarnl (lyitiR 
 (li'i-luruticiii is 
 iKliiiissilile, 
 tlioii^li a Hu)i- 
 Mei|iiont emu 
 wax inadu ami 
 rediiceil to 
 writing. 
 
 Wlieii in 
 writini'. 
 
 When taken 
 on oath. 
 
 As to the 
 mode of elicit- 
 ing the state- 
 ments. 
 
 Tt is no objoctioii to tlic adniisHion of a 'lying declaration, that 
 tlie (IccoaHC'd made a subscfjuent .stateinf.-nt to a magistrate, which 
 was taken down in writing, and is not y)roduced. Where three 
 s»!veral declarations had been made by the deceased in the course 
 of the same day at the successive intervals of an hour each ; the 
 second had been made before a mngistrate, and reduced into writing, 
 l)Ut the others had not; the original written statement, taken 
 before a magistrate, was not produced, and a copy of it was rejected. 
 A (juestion then arose, whether the first and third declarations 
 could be received ; and Pratt, C. J., was of opinion that they could 
 not, since he considered all three statements as parts of the same 
 narrative, of which the written examination was the best proof: 
 but the other judges held that the three declarations were three 
 distinct facts, and that the inability to prove the second did not 
 exclude the first and third ; and evidence of those declarations was 
 accordingly admitted, {z) 
 
 But if the statement of the deceased was committed to writing, 
 and signed by him at the time it was made, it has been held es- 
 sential that the writing should be produced if existing, and that 
 neither a copy nor parol evidence of the declaration could be 
 admitted to supply the omission, (a) But the decisions on this 
 point are altogether unsatisfactory ; for there is no authority, by 
 Act of Parliament or otherwise, for taking a dying declaration in 
 writing, and the words uttered by the deceased are just as much 
 primary evidence as any Avriting in which they may be incorpo- 
 rated. (6) 
 
 If the statement of the deceased has been taken on oath before 
 a magistrate, but is inadmissible as a deposition, in consequence of 
 the prisoner not having been present when it was taken, or for 
 any other reason, (c) it is admissible as a declaration in articulo 
 onortis, if taken under such circumstances as would render such a 
 declaration receivable in evidence. (cZ) And evidence is admissible 
 to prove that the deposition was taken at a time w^hen the deceased 
 was aware of the near approach of death, although the deposition 
 contains no statement to show that the deceased made it in con- 
 templation of death, (e) 
 
 It is not necessary that the examination of the deceased should 
 be conducted after the manner of interrogating a w-itness in the 
 case ; though any departure from the mode may affect the value 
 and credibility of the declarations. Therefore, it is no objection 
 to their admissibility that they were made in answer to leading 
 questions, or obtained by pressing and earnest solicitation. (/) 
 
 (2) Kex V. Eeason, 1 Str. 499. 6 St. 
 Tr. 502. 2 Stark. Evid. 366. According 
 to the report in the State Trials, the chief 
 justice and Mr. J. Powys deemed the evi- 
 dence inadmissible. At all events, it ap- 
 pears the evidence was received. Sir J. 
 Strange was one of the counsel in the 
 cause. 
 
 (a) Rex V. Gay, 7 C. & F. 230, Greenl. 
 Ev. 199. Trowter's case, 12 A'in. Ahr. 
 118, 119. l.each r. Simpson, in Scac. 
 ."asch. 1839, 1 Law & Eq. Kep. 58. 
 
 (h) Re.x i: Reason, sujn-a, seems at va- 
 riance with these cases, and see Robinson 
 r. Vaughton, 8 C. & P. 252, and other 
 
 cases, ante, p. 329, and )wsf, as to the 
 grounds on which depositions are admis- 
 sible. See Rex v. Bell, 5 C. & V. 162, 
 post, and the judgment in Reg. r. Chri.s- 
 topher, 1 Den. C. C. 536. 
 
 ((•) Reg. V. Clarke, 2 F. & F. 2. 
 
 (d) Rex V. Dingier, 2 Leach, 561. Rex 
 v. Callaghan, M'NallyEv. 385, Rose. Cr. 
 Ev. 33. 
 
 (f) Reg. V. Hunt, 2 Cox, C. C. 239. 
 Pollock, C. B., after consulting Coleridge, 
 J. 
 
 (/) GreenL Ev. 190, citing Rex t-. 
 Fagent, infra. Commonwealth v. Vass, 
 3 Leigh, R. 786. Rex v. Reason, 1 Str.
 
 CHAP. I. § III.] Of Hearsay Evidence. 361 
 
 Where a surgeon, in a case of murder, was called to prove a dying 
 declaration, and stated that he put questions to the deceased for 
 the purpose of ascertaining whether it would be necessary for a 
 magistrate to come to her house to take her examination, and it 
 was objected that the statement being in answer to questions, and 
 not a connected continuous statement flowing from herself, could 
 not be received ; it was held that the declaration was admis- 
 sible, {g) 
 
 But whatever the statement may be, it must be complete in 
 itself; for if the declarations appear to have been intended by the 
 dying man to be connected with and qualified by other statements, 
 which he is prevented by any cause from making, they will not be 
 received. Qi) 
 
 The dying declarations of the deceased are not only admissible I" favour of 
 against a prisoner, but also in his favour, {i) ^ pnsonnr. 
 
 As the declarations of a dying man are admitted, on a supposi- Pnsoner in his 
 tion that in his awful situation on the confines of a future world show'the™tote 
 he had no motives to misrepresent, but, on the contrary, the of mind or 
 strongest motives to speak without disguise and without malice, '^^^'~^*^*^'" ^ 
 it necessarily follows, that the party against whom they are pro- 
 duced in evidence may enter into the particulars of his state of 
 mind and of his behaviour in his last moments, or may be allowed 
 to show that the deceased was not of such a character as was 
 likely to be impressed by a religious sense of his approaching dis- 
 solution, (j) 
 
 If a child be too young to be capable of having an idea of a Declarations 
 future state, his declarations are inadmissible, {h) by a child. 
 
 But if a child be of intelligent mind, and fully comprehends the 
 nature of an oath, and the consequences, in a future state, of telling 
 a falsehood, his declarations, made under the apprehension and 
 expectation of immediate death, are admissible in evidence. (1) 
 
 AVith respect to the effect of dying declarations, it is to be ob- Of the effect 
 
 490. Rex t'. Woodcock, 2 Leach, 561, a statement favourable to the person who 
 
 and see Rex v. Welbouri], ante, p. 358. has inflicted a mortal injury upon him, 
 
 R. V. Smith, L. & C. 607 ; R. v. Steele, but rather the contrary. C. S. G. 
 ]2 Cox, C. C. 168. (i) 1 Phil. Ev. 289. In Keg. v. Ma- 
 
 {g) Rex V. Fagent, 7 C. & P. 238, earthy, Gloucester Sum. Ass. 1842, the 
 
 Gaselee, J. case on the part of the prosecution was 
 
 (/() Greenl. Ev. 190, citing Common- that the prisoner had assaulted the de- 
 wealth V. Vass, 3 Leigh, R. 797. ceased, and that the deceased followed the 
 
 (t) Rex?-. Scaife, 1 M. & Rob. 551. prisimer along several streets for the pur- 
 See Druinmond's case, ante, p. 359. The ])0se of giving him into the custody of 
 ground upon which dying declarations are the police; and Erskine, J., peimitted 
 admissiblebeingthat they are tantamount the counsel for the prisoner to cross-exa- 
 to statements made upon oath in the pre- mine the witnesses for the prosecution as 
 sence of the prisoner, and such statements to the bad character of the deceased, in 
 being clearly admissible if in favour of order to show that the prisoner might 
 the ])risoner, tliere seems no reason to have had a reasonable ground for sup- 
 doubt the inopriety of admitting a dying ])Osing that the decea.sed followed him for 
 declaration wliich is in favour of the the purpose of robbing him. C. .S. G. 
 prisoner. Indeed almost every ca.se of (k) Rex v. Pike, 3('. k, V. 598. Park, 
 manslaughter, in which .such declarations J. A. J., after consulting Parke, J. The 
 have been admitted, is an authority to child in the case was four years old, and 
 that eflect, as the priind facie prcsump- it was held that his declaration was inad- 
 tion is, tliat the prisoner had murdered missible. 
 
 the deceased. And, moreover, a declara- (1) Reg. v. Perkins, 2 Moo. C. C. R. 
 
 tion in favour of a prisoner must ever be 135. 9 C. & P. 395, S. C. In this 
 
 taken to bo more likely to be true ; as it case the child was more than ten years 
 
 is not probable that a person should make old.
 
 3G2 
 
 I'f clyiiiR (Ic- 
 
 I'llll'tttiullS. 
 
 '' >f Eiidi'.nce. 
 
 [book VI. 
 
 Hearsay in 
 proof of public 
 rights, boun- 
 daries of 
 parishes, &c. 
 
 sorvod that., tlioii,t(li such (loclarnf ions, wlion dclihcraU'ly made, 
 under a solemn and religious Hensc of" impending dissolution, and 
 concerning circumstances in respect of which tlie deceased was not 
 likely to have been mistaken, are entitled to great weight irti) if 
 clearly and distinctly proved, yet it is always to be recollected that 
 the accused has not had the opportunity of cross-examination — a 
 jiower (|uitc as essential to the eliciting of iJic 'mlioJa truth, as the 
 obligation of an oath can bo, and without which no statement made 
 on oath, iiowever solemnly administered, is admissible under any 
 other circumstances ; and that wliere the deceased had not a deep 
 and strong sense of accountability to his Maker, and an enlightened 
 conscience, the passion of anger and feelings of revenge may, as 
 they have not unfrecpiently been found to do, affect the truth and 
 accuracy of his statements, especially as the salutary and restraining 
 fear of punishment for perjury is, in sucli cases, withdrawn. And 
 it is further to be considered that the particulars to which the de- 
 ceased has spoken were in general likely to have occurred under 
 circumstances of confusion and surprise, calculated to prevent their 
 being accurately observed, and leading both to mistakes as to the 
 identity of the persons and to the omission of facts essentially im- 
 portant to the completeness and truth of the narrative, (/i) When 
 a party comes to the conviction that he is about to die, he is in the 
 same practical state as if called on in a court of justice under the 
 sanction of an oath, and his declarations as to the cause of his death 
 are considered equal to an oath, yet they are nevertheless open to 
 ob.servation. For though the sanction is the same, the opportunity 
 of investigating the truth is very different, and therefore the 
 accused is entitled to every allowance and benefit that he may 
 have lost by the absence of the opportunity of more full investi- 
 gation by the means of cross-examination, (o) It may be added 
 also that the deceased in many cases is labouring under injuries 
 which may affect the brain, and prevent the possibility of reason 
 guiding the words that may be uttered, and yet the means of 
 ascertaining the state of his mind may be such as to render it in 
 the highest degree difficult to discover whether a statement has 
 been made under a morbid delusion of the mind, or in the tranquil 
 exercise of calm reason, operated upon alone by the awful con- 
 sciousness that he must almost immediately render an account to 
 an all-knowing Creator. 
 
 Hearsay evidence is also admissible for the purpose of jiroving 
 public rights, and rights in the nature of public rights. (/)) Thus 
 in questions concerning the boundary of parishes or manors, tra- 
 ditionary reputation is evidence : {q) and the declarations of old 
 
 (»i) See per Coleridge, J., Eex v. Spil.s- 
 bury, 7 C. & V. 187. 
 
 (7^) Greenl. Ev. 192. 1 Phil. Ev. 292. 
 
 (o) Ashton's case, 2 Lew. 1-17, per 
 Aldersou, B. A striking instance of the 
 danger of trusting to statements made 
 after a mortal wound has been inflicted 
 occurred in Keg. v. Macarthy, Gloucester 
 Sum. Ass. 1842. The prisoner was in- 
 dicted for murder, and the deceased had 
 been stabbed by the prisoner whilst he was 
 pursuing him in order to give him into 
 
 custody for an assault, and the deceased 
 expressly stated that the prisoner had 
 knocked him down, but two companions 
 of the deceased, who were present during 
 the whole time, distinctly proved that 
 the deceased was not knocked down at 
 all. C. S. G. 
 
 U') 1 Phil. Ev. 238, 241. 1 Stark. Ev. 
 49. Rose. Ev. 28. 
 
 (q) Xicholls V. Parker, 14 East, 331, in 
 note to Outiam f. ilorewood. And it 
 seems that a map made from the reprc-
 
 CHAP. T. § III. J Of Hearsay Evidence. 3G3 
 
 persons deceased have been admitted in such cases, although they 
 were parishioners and claimed rights of common on the wastes, 
 which their evidence had a tendency to enlarge, (r) But although 
 general reputation is evidence on a question of boundary or custom, 
 yet the tradition of a particular fact (as that turf was dug or a post 
 put down in a particular spot) is not admissible, (s) 
 
 Declarations or statements made by deceased persons, where they Hearsay of 
 appear to be against their own interests, have in many cases been decea-sed per- 
 admitted : as entries in their books charging themselves with the statements ° 
 receipt of money on account of a third person, {t) or acknowledging against their 
 the payment of money due to themselves, {u) Thus a written °^^ interest, 
 memorandum by a deceased man-midwife, stating that he had 
 delivered a woman of a child on a certain day, and referring to his 
 ledger in which a charge for his attendance was marked as paid, 
 was thought by the Court of King's Bench to have been properly 
 received in evidence, upon an issue as to the child's age. {v) So 
 where the point in issue was whether a certain waste was the soil 
 of the defendant, entries by a steward, since deceased, of money 
 received by him from different persons in satisfaction of trespasses 
 committed on the waste were admitted in evidence, to show that 
 the right to the soil was in his master, under whom the plaintiff 
 claimed. {%v) So receipts for rent found in the possession of a 
 tenant are evidence that the person who signed them was seised 
 in fee. (a?) On the same principle, entries in the books of a Entrie.s in a 
 tradesman by his deceased shopman, who thereby supplies proof of tradesman's 
 a charge against himself, have been admitted in evidence, as proof ^°°^*' '^^ ^^' 
 of the delivery of the goods, or of other matter there stated within 
 his own knowledge, {y) But where the effect of the entry is not 
 to charge the servant, it is not evidence. Thus, in an action for 
 the hire of horses, an entry by the plaintiff's servant, since dead, 
 stating the terms of the agreement with the defendant, is not 
 evidence, {z) Such declarations are admissible only on the ground 
 that they are against the proprietary or pecuniary interest of the 
 party making them, and a declaration is not receivable in evi- 
 dence, because it would subject the party to a prosecution if he 
 were living. Thus, if A. were indicted for murder, and B., who 
 was dead, had made a declaration that he Avas present Avhen the 
 murder was committed, though that declaration was against his 
 interest, and would have subjected him to a prosecution if living, 
 
 Rpntations of a deceased person, who Entries in the land-tax collector's books, 
 
 pointed out the boundaries, would be evi- stating A. B. to be rated for a particular 
 
 deuce of such boundaries. Keg. v. Milton, house, and his jiayment of the sum ratt-d, 
 
 1 C. & K. ,58. Erskine, J. were held by Abbott, C. J., admissiblo 
 
 (r) Nicholls v. Parker. But such dc- evidence to show that A. B. was in tlie 
 
 clarations must not have been made post occuitation of tlic premi.ses at the time 
 
 litem motnm, that is, after the very same mentioned. Doc r. Cartwright, Hy. k. 
 
 point or (juestion has become tlie subject Hood. N. P. (". 62. 
 
 of controversy. Kex v. ("ottoii, 3Campb. (»•) Barry v. Bebbington, 4 T. R. 514. 
 
 444. 1 Phil. Ev. '2(i0. (x) Doe dem. Blayucy v. Savage, I C. 
 
 (s) Weeks v. Sparke, 1 ]\I. & S. 680. & K. 487. 
 
 Ireland r. Powell, Peakc's Ev. 15, vor. (i/) 1 Phil. Ev. 310. Price r. Lord 
 
 Chambre, J. Chatficld v. Frier, 1 Price, Torrington, 1 Sulk, 285. 
 
 256, 1 Phil. Ev. 245. (:) Calvert r. Archbishr)i) of Cantcr- 
 
 (i!) 1 Phil. Ev. 293. Middleton v. bury, 2 Esp. 646. Kosc. Ev. 34. Web- 
 Melton, 10 B. & C. 317. ster r. Webster, 1 F. & F. 401. Smith 
 
 (m) Ibid. V. Blakey, L. K. 2 Q. B. 326. 
 
 {v) lligham v. Ridgway, 10 East, 109. 
 
 cci-seJ shop- 
 man.
 
 3n4 
 
 Of Emdence. 
 
 [" 
 
 DDK VI. 
 
 UtitricH in tlio 
 irMo of 
 
 Death of per- 
 son who made 
 the entry must 
 lie proved. 
 Distinction be- 
 tween dechira- 
 tions a!.!:iinst 
 interest and 
 those made in 
 discharge of a 
 duty. 
 
 Other cases of 
 hearsay. 
 
 yot it wotilil i\ot bo a^lniissible after his death, (a) When.- an 
 (Mitry or (lucliiratioii is ini'lo by adisiritorosted porsoix in the course 
 of dischari^in!,' a professional or official duty, it i.s, in general, ad- 
 inissil)le after tlie death of the pirty making it. Thus, a notice 
 indorsed as served by a deceased clerk in an attorney's offi je, 
 whose duty it was to serve notices, is evidence of service. (6) An 
 entry of dishonour of a bill, made by a notary's clerk in the usual 
 course of business, is evidence of the fact of dishonour, after the 
 clerk's decease. (<;) And if a declaration bo made in the discharge 
 of a duty by a deceased person, it is admissible, whether oral or 
 written, [d) In all these cases, the person who made the entry 
 must be proved to be dead, (e) Where it appeared that the entry 
 was in the handwriting of a banker's clerk, who was then in the 
 East Indies, it was held inadmissiljle. (/) 
 
 There is a distinction between declarations against interest and 
 declarations made in the discharge of a duty. The former declara- 
 tions are evidence of all the facts stated ; the latter only of the 
 facts which it was the business of the writer to state. (7) So 
 entries against interest are evidence whensoever made. The latter 
 entries, in order to be evidence, must generally be cotemporaneous 
 with the act done, {h) 
 
 There are other exceptions to the general rule against the re- 
 ception of hearsay evidence, such as the admission of declarations 
 in cases of pedigree, ani of old leases, rent-rolls, survey.s, &c., 
 which can occur so seldom in criminal proceedings, that it is 
 not thought necessary to take further notice of them in this 
 treatise, (i) 
 
 (a) The Sussex Peerage case, 11 CI. 
 & F. 85, per Lord Lyndhurst, C. In that 
 case a declaration by a clergyin;in that he 
 had solemnized a marriage, was held not 
 to be admissible, on the ground that it 
 might have subjected the clergyman to a 
 prosecution for solemnizing the marriage. 
 Standen r. Standen, Peake N. P. C. 45, 
 was strongly questioned in this case. 
 
 (b) Doe V. Turford, 3 B. & Ad. SJIO. 
 Doe V. Skinner, 3 Ex. 84. K. v. Dukin- 
 field, 11 Q. B. 678. Price r. LordTor- 
 rington, 1 Salk, 285. 
 
 (c) Poole V. Dicas, 1 New Cases, 649. 
 
 (d) Per Lord Campbell, C. J. Stapyl- 
 ton V. Clough, 2 E. & B. 933 ; 23 L. J. 
 Q. B. 5. The Sussex Peerage case, 11 
 CI. & F. 113. By the Jewish law the 
 
 custom is that children are circumcised on 
 the eighth day from their birtli, and it 
 is the duty of the Chief Rabbi to perform 
 this rite, and make an entry of it in a 
 book ; but it has been held that on entry 
 made by a Chief Piabbi of a circumcision 
 is not evidence after liis death. Davis 
 V. Lloyd, 1 C. & K. 275, Lord Den man, 
 C. J., & Patteson, J. 
 
 (c) Cooper v. Marsden, 1 Esp. 2, by 
 Lord Kenyon, C. J. 
 
 (/) Ibid. Stephen v. Gwenap, 1 M. & 
 Rob. 121. 
 
 ((/) See Percival r. Nanson, 7 Ex. 1 ; 
 21 L. J. Ex. 1. 
 
 Qi) See Smith v. Blakey, L. R. 2 
 Q. B. 326. 
 
 (i) See post, as to evidence of character.
 
 365 
 
 CHAPTER THE SECOND. 
 
 THE PROOF OF NEGATIVE AVERMENTS, p. 365. — THE RULE THAT 
 THE EVIDENCE MUST BE CONFINED TO THE POINT IN ISSUE, 
 p. 368. — WHAT ALLEGATIONS MUST BE PROVED, AND WHAT MAY 
 BE REJECTED, p. 391 ; — AND THEREWITH OF SURPLUSAGE AND 
 OF VARIANCE. 
 
 Sec. I. 
 Of the Proof of Negative Averments. 
 
 It is a general rule of the law of evidence, in criminal as well as General rule 
 in civil proceedings, that it lies on him who asserts the affirmative *^^*' ^t^Z^° 
 of a fact to prove it, and not on him who asserts the negative, affirmative 
 unless tinder peculiar circumstances where the rule does not m"st prove it. 
 apply, (a) Thus, on an indictment for bigamy, where the fir-st 
 marriage was by license, and the prisoner appeared to be under 
 age at the time, it was held that it lay on the prosecutor to prove 
 tlie C(nisent of parents, required by the 26 Geo. 2, c. 33, in order 
 to show the marriage valid, and not on the prisoner to prove the 
 negative in his defence. (6) 
 
 In criminal proceedings, however, where negative averments The presump- 
 
 usually impute a breach of the law to the defendant, the operation f'°" °* ''}^' '" 
 n , ■ i ■ ■ 1 T 1 • p favour of m- 
 
 01 this rule is sometimes counteracted by the presumption ot nocence some- 
 law in favour of innocence; which presumption, making, as it times drives 
 were, a prima facie case in the affirmative for the defendant, drives !'^® prosecutor 
 
 1 1 • / \ mi . ,. ' . to prove the 
 
 the prosecutor to prove the negative, (c) ihus, on an information negative aver- 
 against Lord Halifax, for refusing to deliver up the rolls of tlie nients. 
 auditor of the Exchequer, the Court of Exchequer put the plaintiff 
 upon proving the negative that he did not deliver them ; for a 
 person shall be presumed duly to have executed his office till the 
 contrary appear, (c/) On an indictment for obtaining money, &c. 
 under false pretences the prosecutor must prove the averments 
 negativing the pretences. In an action for the recovery of penal- 
 ties under the Hawkers' and Pedlars' Act against a person 
 charged with having sold goods by auction in a place in which he 
 was not a householder, some proof of this negative, namely, of 
 the defendant not being a householder in the place, would bo 
 
 (a) Gilb. Ev. 131. Bull. N. P. 298. ject are Mouko r. Butler, 1 Holl. Hep. 83, 
 
 (6) Rex v.. Butler, R. & R. 61. Rex 3 Ea.st, 199. Rex v. Hawkins, 10 East, 
 
 V. Morton, ib. 19, in note to Rex v. 211. Powell r. Milbank, 2 W. Bl. 851. 
 
 James, ante. But since the 4 Geo. 4, S. C. 3 Wils. 3r)r). Williams v. East 
 
 c. 76, a marriage by a minor without India Cciin]iany, 3 East, 193. Rex v. 
 
 consent is valid. Rex v. Biimingham, Twyiiin^', 2 H. & A. 386. Doe r. ^Vhite- 
 
 a7ite, p. 299. head, 8 A. &. E. 571. 
 (c) The same rule applies in civil pro- (rf) Bull, N. P. 298. 
 
 ceediugs. The principal cases on the sub-
 
 3GG UJ Koidencc. [jiuoK. vi. 
 
 m'ci'ssury on the pari of tlio pluintifT. (<-) On tlie trial of an 
 indict nicnt on the 42 Ooo. .S, c. 107, s. I, wiiich made it ll-lony 
 to course deer on an inclosed groun<i, ' vvitliout the consent o\' the 
 owner of the deer,' it ought to have appeared I'njni the- evidence 
 i)rothiced on the part of the prosecution tiiat the owner had not 
 given his consent. (/) 
 V,\\\ tliis pro- lint where the affirmative is pecidiarly within the knowledge of 
 
 simii.tiuii ,i,.cs j|,L. party charged, the presumption of law in favour of innocence 
 ii.it, ..iioiate J ^ allowetl to operate in the manner just mentioned : but the 
 Illative is general rule, as above stated, apjilies, viz. that he who a.sserts tlie 
 
 i.«iiii;iriy affirmative is to prove it, and not he who avers the negative. 
 
 kn!iwk.(l!'c of Thus upon a conviction under the 5 Ann. c. 14, s. 2, against a 
 the i.aity carrier for having game in his possession, it was held sufficient 
 
 cliaife'cil. that the qualifications mentioned in the 22 k 23 Car. 2, c. 2.5, were 
 
 negatived in the information and adjudication, without negativing 
 them in the evidence. {<]) ' The question is,' said Lord Ellen- 
 borough, in that case, ' upon wliom the onun j)vohaiidi lies; whether 
 it lies upon the person who affirms a qualification, to prove the 
 affirmative, or upon the informer who denies any qualification, 
 to prove the negative. There are, I think, about ten different 
 heads of qualification enumerated in the statute, to which the 
 proof may be applied ; and according to the argument of to-day, 
 every person who lays an information of this sort is bound to 
 give satisfactory evidence before the magistrates to negative the 
 defendant's qualification upon each of those several heads. The 
 argument really comes to this, that there would be a moral impos- 
 sibility of ever convicting upon such an information.' {h) 
 
 In Rex V. Hanson, (i) the rule was again considered and laid 
 down by the Court of King's Bench. In that case there had 
 been a conviction by two justices for selling ale without an excise 
 license. The information negatived the defendant's having a 
 license ; but there was no evidence to support this negative aver- 
 ment ; the only evidence to support the conviction being that 
 the defendant had in fact sold ale. The question was, whether 
 the informer was bound to give evidence to negative the exist- 
 ence of a license. In support of the conviction it was contended, 
 that such evidence was unnecessary, and that it lay upon the 
 defendant to prove that lie had a license ; for it is a rule, both of 
 the civil and the common law, that a man is not bound to prove 
 a negative allegation ; Rex v. Turner was cited as an express 
 authority on the point. Abbott, C. J., ' I am of opinion that the 
 
 (e) 1 Pliil. Ev. 494. But this ilecisiou has been overruled ; 
 
 (/) Rex V. Rogers, 2 Campb. 654. ami it is now establislieil that the non- 
 See also Rex v. Hazy, 2 C. & P. 458, and consent may be inferred from the cir- 
 Rex V. Argent, R. & M. C. C. R. 154, cumstancesiinder which the act was done, 
 antf, p. 332 ; the former of which cases or proved by the agents of the owner, 
 was an indictment for lopping and topping Ante, p. 332. 
 
 an ash tree without the consent of the (;/) Rex v. Turner, 5 il. & S. 206. See 
 
 owner, and the latter an indictment for also Spieres v. Parker, 1 T. R. 140, and 
 
 taking fish out of a pond without the Jelfs v. Ballard, 1 B. & P. 468, by Heath, 
 
 consent of the owner. Acconling to the J. In Rex r. Stone, 1 East, 639, the 
 
 report of the case of Rex v. Rogers, Court of King's Bench were equally di- 
 
 I^wrence, J., seems to have thought it vided on the point, 
 
 necessary to call the owner of the deer for (/() 5 M. & S. 209. 
 
 the purpose of dispro\'ing his consent, and (i) MS. Paley on Convictions by Dow- 
 
 the owner not being called, the jury were ling, p. 45, n. ^1). 
 directed to find a verdict of acquittal.
 
 CHAP. II. § I.J Proof of Negative Averments. 
 
 conviction is right. It seems to me that this case is not dis- 
 tinguishable from Rex v. Turner. It is a general rule that the 
 proof of the affirmative lies upon the party who is to sustain it. 
 The prosecutor, in general, is not called upon to prove negatively 
 all that is stated in the information as matter of disqualification. 
 In Rex V. Turner all the learned judges concur in that principle. 
 I concur in all the ohservations upon which the judgment of the 
 Court in that case was founded : and I think every one of them 
 is applicable in principle to this. The general principle, and the 
 justice of the case, are here against the defendant. It is urged, 
 that if we decide against the defendant, we shall open the door 
 to a great deal of inconvenience : that by no means follows ; this 
 man might have produced his license without any possible incon- 
 venience, which would at once have relieved him from all liability 
 to penalties. Probably the whole inquiry before the magistrates 
 was as to the fact of selling the ale, and that nothing Avas said 
 about the license ; but, however, I think, by the general rule, 
 the informer was not bound to sustain in evidence the negative 
 averment that the defendant had not a license. I do not mean to 
 say that there may not be cases which may be fit to be considered 
 as exceptions to that general rule ; there is no general rule to 
 which there may not be exceptions ; all I mean to say is, that 
 this is not one of those exceptions. The party thus called upon 
 to answer for an offence against the excise laws, sustains not the 
 slightest inconvenience from the general rule, for he can imme- 
 diately produce his license ; whereas, if the case is taken the other 
 way, the informer is put to considerable inconvenience. Discussions 
 may arise before the magistrates, wdiether the evidence produced 
 is proper to sustain the negative ; whether a book should be pro- 
 duced, or an examined copy, and many other questions of that 
 sort ; whereas none can arise when the defendant himself pro- 
 duces his license. This, therefore, not being one of the excepted 
 cases, but a case falling directly within the general rule, I am of 
 opinion that judgment must be given for the CroAvn.' (j) 
 
 In Willis's case it is said to have been agreed that, although an 
 indictment states that the prisoner ' then or at any time before, 
 not being a contractor with or authorized by the principal officers 
 or commissioners of our said Lord the King of the navy, ordnance, 
 &c., for the use of our said Lord the King, to make any stores of 
 war, &c.,' yet that it is not incumbent on the prosecutors to prove 
 this negative averment, but that the defendant must show, if the 
 truth be so, that he is within the exception m the statute, (/i) 
 
 Upon the same principle, the A2)of/iecaries Company v. Bent- 
 ley (l) was decided. That was an action for a penalty on the 
 55 Geo. 3, c. 194, for practising as an apothecary without having 
 obtained the certificate required by that Act. All the counts in 
 the declaration contained the allegation that the defendant did act 
 and practise as an iipoihccnYy, Sec, iviihout having obtained suck 
 certificate as by the said Act is directed. No evidence was offered 
 
 3G7 
 
 Apotliccarics' 
 Coiunany r. 
 Bcntley. 
 
 ij) So iu Rex V. Smith, .3 Burr. 1475, 
 which was a conviction for trading as a 
 hawker and pedlar without a license, it 
 was held that the onus of proving the 
 license lay on the defendant. 
 
 (k) 1 Hawk. r. C. c. 80, s. 17. Vol. 2, 
 p. 507. 
 
 (/) Ry. & Mood. N. P. C. I.IO. S. (.'. 
 1 C. k V. 538.
 
 368 
 
 Of Evidancc. 
 
 [book VI. 
 
 by ilic pliiiiitirts fo show tliiit the defendant had not obtained hifi 
 certificate. The plaintill's having closed their case, the counsel 
 fur the det'endant submitted that thcie must be a nonsuit. But 
 Alibott, (J. J., said, ' 1 am of opiidon tliat the afHrmativf; must bo 
 proved by the defendant. I think that it being a negative, the 
 plaintitt's are not bound to prove it, but that it rests with the 
 defendant to establish his having a certificate, (m) 
 
 Evidence to 
 be confined to 
 point in issue. 
 
 Evidence 
 must apply to 
 the single 
 transaction 
 charged. 
 
 Acts of pri- 
 soner charged 
 in indictment 
 alone can be 
 proved. 
 
 Sec. II. 
 
 Evidence conjined to the point in Issue. 
 
 No evidence can be admitted which does not tend to prove or 
 disprove the issue joined. In criminal proceedings the necessity 
 is stronger, if possible, than in civil, of strictly enforcing the rule, 
 that the evidence is to be confined to the point in issue ; for 
 where a pri.soner is charged with an offence, it is of the utmost 
 importance to him that the facts laid before the jury should 
 consist exclusively of the transaction which forms the subject of 
 the indictment, which alone he can be expected to come prepared 
 to answer. It is, therefore, a general rule, that the facts proved 
 must be strictly relevant to the particular charge, and have no 
 reference to any conduct of the prisoner unconnected with such 
 charge. Therefore, it is not allowable to show, on the trial of an 
 indictment, that the prisoner has a general disposition to commit 
 the same kind of offence as that for which he stands indicted. 
 Thus, in a prosecution for an infamous crime, an admission by the 
 prisoner that he had committed such an offence at another time, 
 and with another person, and that he has a tendency to such 
 practices, ought not to be received in evidence, (n) Where upon 
 an indictment for a burglary and stealing goods, the prosecutor 
 failed to prove any nocturnal breaking, or any larceny subse- 
 quent to the time when the prisoners entered the house, which 
 must have been after three o'clock in the afternoon of the day on 
 wdiich the offence was charged to have been committed, it was 
 proposed to abandon the charge of burglary, and to give evidence 
 of a larceny by the prisoners of some of the articles mentioned in 
 the indictment, though committed before three o'clock on the day 
 on which they were charged to have entered the house ; but the 
 Court refused to receive the evidence, on the ground that it 
 was a distinct transaction, (o) The prisoners were, therefore, ac- 
 quitted on this charge, but were afterwards indicted again for the 
 other offence, and convicted. In treason, no overt act, amounting 
 to a distinct independent charge, though falling under the same 
 head of treason, shall be given in evidence, unless it be expressly 
 
 {m) See R. r. Harris, 10 Cox C. C. 
 541. 
 
 {n) Rex V. Cole, Mich. T. 1810, by all 
 the judges, MS. 1 Phill. Ev. 477. In 
 an action against the acceptor of a bill of 
 exchange, where the defence was, that 
 the accciitauce was forced, evidence that 
 
 the party who negotiated the bill had been 
 guilty of other forgeries was held inad- 
 missible. Viney r. Barss, 1 Esp. 292. 
 See also Balcettif. Serani, Peake, N. P. C. 
 142. Graft r. Bertie, Peake's Ev. 104. 
 (')) Rex !'. Vandercomb, 2 Leach, 708. 
 Vol. 2, p. 49.
 
 CHAP. II. § II.] Evidence confined to Point in Issue. 
 
 laid in the iDdictment; (p) but still, if it conduce to the proof of 
 any of the overt acts which are laid, it may be admitted as evi- 
 dence of such overt acts, (q) With this view the declarations of 
 the prisoner and seditious language used by him are clearly 
 admissible in evidence, as explaining his conduct and showing the 
 nature and object of the conspiracy, (r) 
 
 So, though it is not allowable in general to inquire into any 
 other stealing of goods, besides that specified in the indictment, 
 yet, for the purpose of ascertaining the identity of the person, it 
 is often important to show that other goods, which had been upon 
 an adjoining part of the premises, were stolen in the same night, 
 and afterwards found in the prisoner's possession. This is strong 
 evidence of the prisoner having been near the prosecutor's house 
 on the night of the robbery ; and in that j)oint of view it is 
 material, (s) Thus also, on an indictment for the crime of arson, 
 it may be shown that property, which had been taken out of the 
 house at the time of the firing, was afterwards found secreted in 
 the possession of the prisoner, (t) 
 
 Where several are proved to have been engaged in the same 
 design, the acts and declarations of one in furtherance of that 
 design may be received in evidence against another, though not 
 present ; (u) and it seems to make no difference as to the admis- 
 sibility of the act or declaration of a conspirator against a defendant, 
 whether the former be indicted or not, or tried or not, with the 
 latter ; for the making one a co-defendant does not make his acts 
 or declarations evidence against another any more than they were 
 before ; the principle upon which they are admissible at all is, 
 that the act or declaration of one is that of both united in one 
 common design, a principle which is wholly unaffected by the 
 consideration of their being jointly indicted, (v) Neither does it 
 appear to be material what the nature of the indictment is, pro- 
 vided the offence involve a conspiracy. Thus, upon an indictment 
 for murder, if it appeared that others, together with the prisoner, 
 conspired to perpetrate the crime, the act of one done in pursuance 
 of that intention would be evidence against the rest, (iv) So where 
 in a case of forgery several persons had been shown to be con- 
 nected together in respect of the charge contained in the indict- 
 ment, it was held that what was said by one of them to a witness, 
 when they were met together, on the subject of the present forgery, 
 was evidence against the others, although the person who said it 
 was not upon his trial, (x) 
 
 Where several different felonies are alleged in the same indict- 
 ment, or the evidence appears to refer to more than one distinct 
 unconnected felony, it is usual for the judge, in his discretion, to 
 call upon the counsel for the prosecution to select one felony, and 
 to confine the evidence to that particular charge. (?/) Thus, on an 
 
 369 
 
 {p) Fost. 245. 
 
 (q) Ibid. 
 
 (r) 1 I'hill. Ev. 471, citing lUx v. 
 "Watson, 2 Staric. K. 1:}4. 
 
 (s) 1 Pbill. Ev. 169, 7tli ed. See per 
 Littledale, J., in Kex v. Rooney, 7 C. & 
 P. 517, pof!f, p. 372, note (m). 
 
 (f,) liicknian's case, 2 East, P. C. c. 21, 
 s. 11, ]). 1035. 
 
 (u) Kex V. Stone, 6 T. R. 527. See 
 
 VOL. III. 
 
 Where larceny 
 of goods not 
 laid in indict- 
 ment may be 
 proved. 
 
 Acts of other 
 persons en- 
 gaged in the 
 same design 
 may be 
 proved, 
 whether they 
 are indicted 
 or not. 
 
 Prosecutor 
 confined to 
 proof of one 
 felony. 
 
 also for examples of tliis rule, Rex v. 
 Staudley, R. & i{. 305. Rex r. Oo'jcrh'y, 
 ibid. 313. Rex i'. Hingley, ibid. 1 It!. 
 
 (c) 2 Stark. Ev. 329. AiUi-, p. 149. 
 
 {w) Ibid. 
 
 (./•) Rex I'. Stansfield, 1 Lew. 118, 
 Littledale, J. See Rex v. TattersuII, 
 jiod., ]>. 378, note (n). 
 
 (//) \'oung r. Tlie King. 3 T. R. 10(), 
 by Bulkr, J. Rex r. Jones, 3 Campb. 132, 
 
 B B
 
 370 
 
 Of Evidence. 
 
 [book 
 
 VI. 
 
 Proving ono 
 felony by 
 showing pri- 
 soner guilty 
 of another 
 felony. 
 
 Where the 
 felonies are 
 connected. 
 
 indictment a^jainst a receiver for receiving several articles, if it 
 appear that tlK^y were received at different times, the prosecutor 
 may h(? put to his election, (2) though on .an indictment for stealing 
 several artich's it is no ground for confining tlie pro.secutor's proof 
 tosouieoiK'of the articles, that they migiit have been, and probably 
 were, stolen at different times, if they might have been stolen all 
 at once, (a) 
 
 Generally speaking, it is not competent to a prosecutor to prove 
 a man guilty of one felony by proving him guilty of another un- 
 connected felony ; but where several felonies are connected to- 
 gether, and form part of one entire transaction, then the one is 
 evidence to show the character of the other. (6) On an indictment 
 for stealing six shillings, it was proved that the prisoner was a 
 shopman in the employ of the prosecutrix, and, his honesty being 
 suspected, on a particular day the son of the prosecutrix put seven 
 shillings, one half-crown, and one sixpence, marked in a particular 
 manner, into a till in the shop, in Avhich there was no other silver 
 at that time, and the prisoner was watched by the prosecutrix's 
 son, who from time to time went in and out of the shop, occa- 
 sionally looking into and examining the till, while customers came 
 into the shop and purchased goods. Upon the first examination 
 of the till it contained lis. ^d. ; after that, the son of the prose- 
 cutrix received one shilling from a customer and put it into the 
 till ; afterwards another person paid one shilling to the prisoner, 
 who was observed to go with it to the till, to put his hand in, and 
 withdraw it clenched. He then left the counter, and was seen 
 to raise his hand clenched to his waistcoat pocket. The till was 
 examined by the witness, and lis. ^d. were found in it instead of 
 13s. 6d which ought to have been there. The prosecutrix was 
 proceeding to prove other acts of the prisoner, in going to the till 
 and taking money, when Wilde, Serjt., objected that evidence of 
 one felony had already been given , and that the prosecutrix ought 
 not to be allowed to prove several felonies. The learned judge 
 oven'uled the objection, and the son of the prosecutrix proved that, 
 upon each of several inspections of the till after the prisoner had 
 opened it, he found a smaller sum than ought to have been there. 
 The prisoner having been found guilty, application was made to 
 the Court of King's Bench for a rule for staying the judgment, on 
 the ground that the prosecutor ought to have been confined in 
 proof to one felony ; but the Court was of opinion that it was in 
 the discretion of the judge to confine the prosecutor to the proof 
 of one felony, or to allow him to give evidence of other acts, which 
 were all part of one entire transaction, (c) 
 
 So where on an indictment for stealing pork, a bowl, some 
 knives, and a loaf of bread, it appeared that the prisoner entered 
 a shop and ran away with the pork, and returned in about two 
 minutes, replaced the pork in a bowl, which contained the knives, 
 
 l!ex V. Kingston, 8 East, 41. But this 
 nilo does not extend to niisdenieanore. 
 Eex v. Finacane, 5 C. & P. 551. 
 
 (z) Eex V. Dunn, R. & M. C. C. E., 
 146. "When he w-ill not be so, see vol. 2, 
 p. 280. 
 
 {a) llnd. "When the prosecutor will 
 not l)e rei|uircd to eloct when gootls have 
 
 been taken at different times, see vol 2, 
 p. 268, 280. 
 
 (6) Per Bayley, J. Eex v. Ellis, 6 B. 
 & C. 145. 
 
 (r) Eex ?'. Ellis, supra. The indict- 
 ment had been removed into that Court 
 by certiorari from the city Court of 
 Exeter.
 
 CHAP. II. § II.] Evidence confined to Point in Issue. 371 
 
 and took away the whole together ; in about half-an-hour after, 
 he came back to the shop, and took away the loaf of bread. Little- 
 dale, J., said, ' This taking away the loaf cannot be given in 
 evidence upon this indictment. I think that the prisoner's taking 
 the pork and returning in two minutes, and then running off with 
 the bowl, must be taken to be one continuing transaction ; but I 
 think that half-an-hour is too long a period to admit of that 
 construction. The taking of the loaf therefore is a distinct 
 offence.' {cl) So where the prisoner was indicted for stealing a 
 halfpenny, and the prosecutor had marked a quantity of pence and 
 halfpence and locked them up in a bureau, and had missed one 
 halfpenny on the 9th of July, and others on the 13th; Erie, J., 
 held that the prosecutor might prove that after the 13th the 
 prisoner was searched, and all the marked pence found upon her, 
 and that he could not say which of them was stolen on the 9th, 
 but it must be one of them ; for it mattered not that the evidence 
 might apply to another charge if it were revelant and necessary 
 for the support of this charge, (e) 
 
 The prisoner was indicted for stealing one shilling. The pri- An admission 
 soner was taken into custody, and the shilling, which had been ^\ aiiother 
 marked, found in his possession, and the constable asked him if *^ ^*'°'^* ® °°y 
 he had any more of the prosecutor's money about him, on which 
 he produced some half-crowns, and said something about them ; 
 and it was held that the statement so made was not admissible, as 
 it related to another felony. (/) 
 
 In the case of Rex v, Wylie, (g) Lord Ellenborough said he re- 
 membered a case where a man committed three burglaries in one 
 night ; he took a shirt at one place and left it at another ; and 
 they were all so connected, that the Court went through the history 
 of the three different burglaries. So where three burglaries were 
 committed in the town of Uttoxcter, one at Reeling's and another 
 at Bladon's, between twelve and three o'clock of the same night, 
 and at Bladon's a crowbar was found, which fitted some marks on 
 a chest broken open at Reeling's, and which was proved to have 
 been in the possession of the prisoners previously to the night in 
 question; Wightman, J., on the authority of the preceding case, 
 allowed evidence to be given of the finding of the crowbar at 
 Bladon's, and also of the finding goods stolen the same night from 
 Bladon's in the possession of the prisoners, as such evidence tended 
 to show that the prisoners had been at Bladon's, and that they 
 might have left the crowbar there. (Ji) So where on an indictment 
 for breaking into a counting house of the Midland Railway Station 
 at Nether Whitacre, it was proposed to prove that the prisoners 
 on the same night had successively broken into tlie stations of 
 Wilnecote, Ringsbur}^, Nether Whitacre, and Forgehills, Nether 
 Whitacre being at some distance from the other stations, and tliat 
 some of the property taken from Nether Whitacre had Itoen fi)und 
 on two of the prisoners, and property taken from another station 
 
 Several bur- 
 glaries in the 
 same night. 
 
 (d) Bex V. Binlsoyp, 4 C. & P. 386. 
 
 (c) llvxr. May, 1 Cox, C. (". 2.S6. Erie, 
 J., told the jury to convict, if they wore 
 satisfied tluit all the lialfpcnce were 
 identified, but to acquit if any wa.s not 
 identified. 
 
 (/") Keg. V. F.ntler, 2 C. & K. 221, 
 rintt, 1'.. 
 
 (f/) 1 New Rep. OJ, S. C. 2 T-endi, 
 983. 
 
 (/() Reg. r. Stonyer ajid ofhrr.<;, Staf- 
 ford Sum. As.s. 18/3. MSS. P. S. O.
 
 wri 
 
 Of Evidence. 
 
 [book 
 
 VI. 
 
 Where several 
 felonies are 
 all parts of 
 the same 
 transivetioii, 
 eviJcuc-e of all 
 is admissible, 
 upon the trial 
 of an indict- 
 ment for any 
 of them. 
 
 on tlic third, and that jemmies had been found on each prisoner, 
 whicli corresponded with marks on doors and drawers broken open 
 at one or otlier of tlie stations; Iiraniw(;ll, B., said, ' I think that 
 evidence of the acts of i\ui prisoners during the same niglit is 
 a(hiiissihle in order to exphiin wliy none of the property taken 
 from Netlier Whitacre was found upon one of tlie prisoners. If it 
 is proved that he was found in possession of other pnjperty stolen 
 from another station on the same night, that, with other cir- 
 cumstances, might be evidence that all the men had been engaged 
 in each burglary, and that the third man had received his .share of 
 the booty wholly from what was taken from the other stations, 
 riie events of that night, relating to these burglaries, are so inter- 
 mixed that it is impossible to .separate them.' (i) 
 
 Where several felonies arc all parts of the same tran.saction, 
 evidence of all is admissible upon the trial of an indictment for 
 any of them. Thus upon an indictment against two pri.soner.s, 
 charging each in different counts as principals in the first degree 
 in committing a rape, and also as principals in the second degree 
 in other counts, evidence has been held admissible that the 
 pri.soners, together with three other men, committed at the same 
 place and time, the one after the other successively, rapes upon 
 the body of the prosecutrix, the others aiding and abetting in 
 turn, {j) So where there were three indictments against the 
 prisoner for setting jfire to three ricks belonging to three different 
 persons, and it appeared that the ricks, which were in sight of 
 each other, were set on fire one immediately after the other, but 
 the strongest evidence being as to the last, that indictment was 
 tried first ; the confession of the prisoner relating to all the three 
 ricks, and the evidence of an accomplice as to all, was admitted, 
 as the whole constituted part of the same transaction. (Jc) And 
 where an indictment for arson contained five counts for setting fire 
 to five different houses, which "svere all in one row, and the fire 
 from the one first on fire had communicated to the others, it was 
 held that, as it was all one transaction, the evidence as to all the 
 houses was admissible, {l) So wdiere upon an indictment against 
 the prisoners for robbing Woodward, there being another indict- 
 ment against them for robbing Urwick of a Avatch, it appeared 
 that Woodward and Urwick were travelling in a gig, when they 
 were stopped and robbed ; Littledale, J., held that evidence might 
 be given that Urwick lost his watch at the same time and place 
 that Woodward was robbed, but that evidence was not admissible 
 of the violence that was ofiered to Urwick. One question in the 
 case was, whether the prisoners were at the place in question when 
 Woodward was robbed ; and as proof that they were so, evidence 
 was admissible that one of them had got something which was lost 
 there at that time, {m) And where upon an indictment for robbing 
 
 (i) Eeg. V. Cobden, 3 F. & F. S33. 
 
 (j) Eex V. Folkes, R. & M. C. C. E. 
 354. And the same was held in Eex v. 
 Lea, 2 Moo. C. C. E. 9. 7 C. & P. 836. 
 There several rapes committed iu one 
 boat were given in evidence ; but other 
 ra]>es committed in another boat, to which 
 the iirosccutrix was carried from the lirst 
 b.Mt, wi I p not otl'ered iu evidence, as they 
 
 were the subject of another indictment 
 C. S. G. 
 
 (k) Eex r. Long, 6 C. & P. 179, Gur 
 nev, B. 
 
 \l) Eeg. V. Tnieman, 8 C. & P. 7 
 Erskine, J., refused to put the pro.secutor 
 to elect as to wluch count he would pro 
 did witli. 
 
 (ill) Eex I'. Eooney, 7 C. & P. 517
 
 CHAP. IT. § II.] Evidence confined to Point in Issue. 373 
 
 George and Henry PriteharJ, it appeared that the prisoners 
 attacked and robbed George and Henry Pritchard when they were 
 walking together, Tindal, C. J., held that the prosecutor was not 
 bound to elect as to which robbery he would proceed. It was all 
 one act, and one entire transaction; the two prosecutors were 
 assaulted and robbed at one and the same time, and there was no 
 interval of time between the assaulting and robbing of the one 
 and the assaulting and the robbing of the other. If there had been, 
 the felonies would liave been distinct, but that was not so in the 
 present case, {n) So where the prisoner was indicted under the 
 8 & 9 Will. 3, c. 26, s. 1, for having in his possession an edger, con- 
 trived for marking money round the edges, and proof being offered 
 that the prisoner had used this instrument for graining the edges 
 of counterfeit half-crowns, it was objected that the act of coinino" 
 being a species of treason higher in degree than the one the 
 prisoner was charged with, the greater offence ought not to be 
 given in evidence to prove the less ; but Burrough, J., held that 
 the evidence was admissible, as whatever went to prove that the 
 prisoner was guilty of the offence he was charged with was 
 evidence, however it might also go to show him guilty of another 
 offence, (o) 
 
 The prisoner was indicted under the 7 & 8 Geo. 4, c. 29, s. 87, Several con- 
 fer stealing from the mine of H. J. Gunning, coal, the property of nected lar- 
 H. J. G., and in the same count he was charged with stealing from '^^.","^^ •^™'" '^ 
 the mines of thirty other proprietors other coal, the property of 
 each of such proprietors. ( p) The prisoner had been lessee of a 
 mine, which he had been working from November 1842 till January 
 1848, and in opening the case it was stated that he had, from the 
 shaft opened to work this mine, carried on extensive workinfi-s of 
 coals by means of levels, driftways, tunnels, cuttings, and drains ; 
 and by means of these workings he had gotten coal belono-ino- to 
 about forty different proprietors, without their sanction or know- 
 ledge ; and in doing so had undermined part of the yard of the 
 parish church, 144 yards of the main street of Wigan, and 220 
 private houses ; and he had unlawfully possessed himself of 10,000^. 
 worth of the coal of other persons. It was urged that it was not 
 competent to proceed under this indictment for felonies so entirely 
 distinct. One of such felonies might have been committed upwards 
 of four year.s before another of them, and by means of different 
 workmen, and under the superintendence of different agents. Eacli 
 severance of coal being a felony, there were thirty-one ilistinct 
 felonies charged in each count, and if no restriction were put on 
 the prosecution, there would be laid before the jury, an<l the 
 
 Littledalc, J., added, 'I think it makes Zeigert, 10 Cox, C. C. 555. 
 no diireronce that Unvick's watch is the {p) Tlicre wore other counts cliarfjino^ 
 
 subject of another indictment.' 'Sup- the prisoner witli the severing of coal with 
 
 pose Mr. Urwii'k had not been thereat intent to steal, and with common larceny ; 
 
 all, and that when Woodward was robbed and in each count the coal was laid as 
 
 a watch had been under the seat of his the property of M. .1. (}., and of the said 
 
 gig, and that after the robbery lie had thirty other separiite and distinct owners, 
 
 discovered that the watch was missing, I Q":*^'''^'^^hether all thecounts, e.\cept those 
 
 have no doubt that evidence might bo for common larceny, were not ch-arly 
 
 given of the loss of the watch at the bad, as charging thirty-one separate 
 
 IJlace.' felonies, which by no possibility could be 
 
 {n) Reg. r. Oiddins, C. & M. 634. committed together ? C. S. C, 
 
 (o) Ucxr. Moore, 2 C. & P. 235. R. v.
 
 874 
 
 Of Evidence. 
 
 [liOOK VI. 
 
 Wliere several 
 felonies are in 
 fact so mixed 
 as not to be 
 separated 
 ■without incon- 
 venience to the 
 prosecutor, 
 evidence of all 
 may be ad- 
 mitted, and 
 therefore 
 letters refer- 
 ring to several 
 transmissions 
 of stolen 
 goods from 
 the principal 
 to the receiver 
 in siicii a case 
 arc admissible. 
 
 prisoner would lin,v(.' to juiswcr, evidence relating in many tliousands 
 of distinct felonies. What would be an unanswerable defence to 
 one cliar<,fe, niiglit be wholly ina])])lical)le to another, and every 
 di'fence inij^dit re(|uire a different set of witnesses. Erie, J., 'The 
 «|uestion is, what, in surh a case as tliis, is one entire transaction. 
 Jt may bi; that the making a level, a tunnel, a drain, and a cutting, 
 may all be necessary in order to take particular coal ; if so, all 
 would, I think, be part of one transaction, and might properly be 
 given in evidence. I cannot interfere at present.' The evidence 
 for the pro.secution extended to all the operations mentioned in 
 the opening of the case ; to thp getting the coal continuously 
 during a period for upwards of four years, to operations conducted 
 by ditfereut underlookers and by many different workmen, and to 
 coals taken from the coal field.s of thirty or forty different owners. 
 On the ca.se for the prosecution closing, the counsel for the pri.soner 
 urged that the prosecutor ought to elect some single charge ; 
 whicli he declined, unless directed so to do. Erie, J., 'I will not so 
 direct ; but for convenience .sake the prisoner's counsel may address 
 himself to the charge of stealing the coal taken under the church- 
 yard. The whole workings may be relied on to show a felonious 
 intent, though they may go into twenty different counties, and into 
 the sepai'ate properties of twenty different persons, and extend 
 over iifteeu or twenty years, if the mining operations be continuous 
 for tliat time ; ' and in summing up Erie, J., said, ' It has been 
 urged that the taking of each day was a separate felony, and that 
 only one felony could be inquired into by you on this indictment ; 
 but I should say that as long as coal was gotten from one shaft, it 
 was one continuous taking, though the working was carried on by 
 means of different levels and cuttings, and into the lands of 
 different people. As, however, complaint was made by the counsel 
 for the prisoner, I have thought it better that your attention 
 should be confined to the charge of taking the coal of one owner ; 
 but ni order to show that when the prisoner took the coal of Mr. 
 Gunning he knew he was out of his boundary, I have permitted it 
 to be proved that he has gone out of his boundary in many other 
 instances, and into the property of many other persons, taking in 
 all 15,000 yards of coal.' (7) 
 
 Upon an indictment against a son for stealing on the 20th of 
 November, 1843, twentj-six pairs of boots, twenty pairs of shoes, 
 and 128 pounds weight of leather, and against his father for receiv- 
 ing the said goods, knowing them to have been stolen, it appeared 
 that the son from the beginning of March 1843 till the 10th of 
 November following was in the employ of the prosecutors, who 
 were curriers and dealers in boots and shoe.s. The two prisoners 
 lived together at Kirkstall till the end of April ; when the elder 
 removed to Preston, taking with him a hamper, which passed and 
 repassed afterwards repeateilly between the father and the son 
 down to October. On the 10th of November the lodgings of the 
 son at Kirkstall were searched, and a quantity of shoes and leather 
 found there belonging to the prosecutor.?, and at the same time and 
 place sundry letters were found from the father to the son, which 
 induced the prosecutors to search the shop of the father at Preston, 
 
 (q) Keg. V. Bleosedalc, 2 C. & K. 765.
 
 CHAP. II. § II.] Evidence confined to Point in Issue, 
 
 and in that shop there were also found boots, shoes, and leather of 
 the prosecutors of the value of about 150^., and letters from the 
 son to the father. It was jjroposed, on the part of the prosecution, 
 to put in the letters, both from the father to the son and from the 
 son to the father ; these letters were dated at various periods 
 between May and October following, and referred to the transmis- 
 sion from the son to the father of goods of the nature of those 
 found in the father's house. It was objected that these letters 
 could not be read, or at any rate not all of them. As they referred 
 continually to the transmission of property, the effect of giviuo- 
 them in evidence would be to assist the proof of a single felony by 
 proof of other felonies. It was answered that it did not appear 
 that there had been more than one taking and one receiving ; and 
 at all events the letters wei'e evidence against the father, as show- 
 ing guilty knowledge. Maule, J,, ' Judges are in the habit of 
 not allowing several felonious acts to be given in evidence under 
 one indictment, where, as will often be the case, the effect of so 
 doing will be to create confusion, or to surprise the prisoner, or 
 otherwise embarrass the defence. But here embarrassment and in- 
 justice would be produced by putting the prosecutors to their elec- 
 tion. They cannot possibly know at what time the several larcenies 
 and receivings (if more than one) took place. The whole seems to 
 constitute a continuous transaction; therefore I shall admit evi- 
 dence relating to any takings and receivings under the circum- 
 stances, provided the indictment contains corresponding charges.' (?■) 
 It was formerly considered that if there were separate indict- 
 ments for offences which constituted parts of the same transaction, 
 evidence of an offence which was the subject-matter of one indict- 
 ment was not admissible upon the trial of another. («) But it has 
 been since held in several cases that there being another indictment 
 pending makes no difterence. if) And it has been laid down by 
 a very learned judge that the correct rule in such cases is, that it 
 is in the discretion of the judge to admit or reject evidence of other 
 felonies whicii form the subject of other indictments, and that such 
 discretion will be guided by the evidence appearing to be neces- 
 sary or unnecessary in support of the indictment on which the 
 prisoner is being tried, (it) Thus where there were three indict- 
 ments against a prisoner for stealing notes from three letters, and 
 it ap23eared that the prisoner stole notes out of one letter, and then 
 opened another letter, and took out of it the notes it contained, 
 and substituted for them notes to an equal amount out of the first 
 letter, it was held on the trial for stealing the notes out of the first 
 letter that the notes stolen out of the second letter might be traced 
 to the prisoner, because such evidence was essential to the chain of 
 facts necessary to make out the case, (y) But where on an indict- 
 ment for night-poaching, in order to prove the identity of one of 
 the prisoners, it was proposed to prove that a coat lost by one of 
 the keepers on the occasion in question had been found in the 
 house of that prisoner, there being a separate indictment for 
 
 375 
 
 Where other 
 felonies are 
 the subject- 
 matter of 
 other indict- 
 ments. 
 
 (r) Reg. V. lliiiley, 2 JI. & Hob. 524. 
 See K. V. Firth, 38 L. J. M. C. 54. 
 
 (s) Rex V. Smith, 2 C. & P. 033. 
 
 {t) See the cases, vol. 2, p. 728, and 
 per Littledale, J., Rex v. Roouey, ante, 
 
 p. 372. See R. r. Zeigert, 10 Cox, C. 
 C. 555. 
 
 ((() Per Pattesoii, J.,Rcxi'. Salisbiny, 
 MS. C. S. G. S. C. 5 C. & P. 155. 
 
 \^v) Rex V. Salisbury, supra.
 
 37G 
 
 Evidonco of 
 other acts of 
 prisoner n8 
 proof of liiH 
 guilty kuow- 
 lodgc. 
 
 Of Evidence. 
 
 [book 
 
 Vf. 
 
 To prove 
 knowledge of 
 character. 
 
 Cases of false 
 pretences. 
 
 stt'alinf,^ fliccoat; Pattoson, J., rofuscd to receive tlic evidence, 
 unless tiie prosecutor consented to an acquittal on tlie indictment 
 lor laiceny. (?") 
 
 Where it becomes necessary to prove a guilty knowledge on the 
 part of the prisoner, evidence of other offences committed by liim, 
 though not charged in the indictment, is admissible for that pur- 
 jiose. Thus upon an indictment for uttering a forged Ijank-note, 
 knowing it to be forged, evidence may be given of other forged 
 notes having l)een uttered by the prisoner, in order to show hi.s 
 knowledge of the forgery ; {x) but not on an indictment for for- 
 gery, {y) So on a prosecution for uttering counterfeit money, it 
 is the practice, for the purpose of showing a guilty knowledge, to 
 receive proof of more than one uttering committed by the party 
 al)out the same time, thougli only one uttering be charged in the 
 indictment, (c) So, though on an indictment against a receiver for 
 receiving several stolen articles, if it be proved that tliey were re- 
 ceived at several times, the prosecutor maybe put to his election, 
 yet evidence may be given of all the receipts for the purpose of 
 proving guilty knowledge. («) 
 
 On an information against a publican for unlawfully permitting 
 prostitutes to assemble in his house, evidence that some of the 
 same prostitutes had on other previous occasions been in the house 
 is admissible, in order to prove his knowledge of their clia- 
 racter. (c) 
 
 On an indictment for obtaining money on a chain by falsely 
 pretending that it was a silver chain, it was held admissible to 
 
 {w) Rex V. Wcstwood, 4 C. & P. 547. 
 In Rex r. Salisburj', supra, I'atteson, J., 
 stated that lie refused to admit the evi- 
 dence in this case on the ground that lie 
 did not think it necessary in support of 
 the ott'ence charsjed. 
 
 (a;) See Wylie's case, 1 New Rep. 92. 
 S. C. 2 Leach, 983, where per Lord Ellen- 
 horough, C. J. ' The more detached in 
 point of time the previous utterings are, 
 the less relation they will bear to that 
 stated in the indictment. But in such 
 case the onl}' question would be, whether 
 the evidence was sufficient to warrant 
 the inference of knowledge from such 
 l)articular transactions ? It would not 
 make the evidence inadmissible. Such 
 evidence may come out from these cir- 
 cumstances as to leave no doubt that the 
 ]>risoners must have known what sort of 
 paper they were jiassing.' Rex v. Ball, 
 Russ. &Ry. 132. 1 Campb. 324. R. v. 
 Francis, 12 Cox, C. C. 612. R. v. Green, 
 3 C. & K. 209. So the possession of 
 other forged instruments may be proved 
 as evidence of a guilty knowledge. Rex 
 V. Hough, R. & R. 120 ; but there must 
 be regular proof that they are foiged, 
 vol. 2, p. 728. Rex ;•. Millard, R. & 
 R. 245. It seems that it may be proved 
 that the prisoner had uttered forged bills 
 or notes of a different kind, vol. 2, p. 729. 
 as to the proof of an uttering the subject 
 of another indictment to shew a guilty 
 knowledge, see vol. 2, p. 731. 
 
 (>j) Wher , iu an action on several bills 
 
 of exchange drawn by one Skull, the 
 question was whether the defendant had 
 accepted them, and his name appeared on 
 each as acceptor, and evidence was given 
 for the plaintiff that the signatures were 
 those of the defendant, and for the de- 
 fendant that the signatures were forgeries, 
 and the defendant proposed to prove that 
 a number of bills and other papers had 
 been taken away by the plaintiff's brother 
 from Skull's house, and that among the 
 bills so taken away were several bills on 
 which the defendant's signature appeared, 
 which signature was forged ; and that the 
 plaintiff had been circulating such forged 
 bills since ; and it was contended that 
 the jury would be at liberty to infer that 
 the bills on which the action was brought 
 W(Te part of the bills so taken from 
 Skull's house ; Tiudal, C. J., rejected the 
 evidence, and it was held that he was 
 right in so doing, as it clearly would 
 liave been inadmissible on an indictment 
 for forgery. Griffiths v. Paj-ne, 11 A. & 
 E. 131. 
 
 (z) Vol. 1, p. 233, and see Reg. r. 
 Jarvis, Dears, C. C. 552, vol. 1, p. 236, 
 and Reg. r. Weeks, L. & 0. 18. R v. 
 Foster, 24 L. J. M. C. 134. R. v. 
 Goodwin, 10 Cox, C. C. 534. 
 
 (a) Rex V. Dunn, R. & M. C, C. R. 
 146. See R. r. Oddv, 2 Den. C. C. 264. 
 See 34 & 35 Vict, c' 112, s. 19, noticed 
 vol. 2, p. 485. 
 
 (c) Parker v. Green, 2 B. & S. 299.
 
 CHAP. II. § II.] Evide7ice confined to Point in Issue. 377 
 
 prove that the prisoner a few days afterwards, offered a chain 
 similar in appearance to another pawnbroker, requesting him to 
 advance ten shillings upon it, and that twenty-six similar chains 
 were found on the prisoner when he was apprehended, (c/) 
 
 On an indictment for attempting to obtain money by falsely 
 pretending that a ring was composed of diamonds, which in fact 
 was composed of crystals ; it Avas held that evidence was admissible 
 of a false pretence on a prior occasion to another person that a 
 chain was gold, whereas it was plated, and on another distinct 
 occasion that a ring was of diamonds, which it was not ; and that 
 it was no objection that the diamond ring sjaokcn to on the prior 
 occasion was not produced in court, (e) 
 
 If it be material to show the intent with Avhich the act charged Proof of other 
 was done, evidence may be given of a distinct offence not laid in acts of the 
 the indictment. Thus upon an indictment for maliciously shooting, evidence of his 
 if it be questionable whether the shooting was by accident or guilty intent, 
 design, proof may be given that the prisoner at another time in- 
 tentionally shot at the same person. (/) So on an indictment for 
 arson of a house, previous attempts to set it on fire have been held 
 admissible, though not proved to have been made by the prisoner, 
 for the purpose of showing that the fire was not accidental, {rf) So 
 on an indictment for setting fire to a rick by discharging a gun 
 very near to it, evidence is admissible that it had been on fire the 
 day before, and that the prisoner Avas then near it with a gun in 
 his hand. Qi) So where upon an indictment for robbery it ap- 
 peared that the prisoners went With a mob to the prosecutor's 
 house, and one of the mob went up to him, and very civilly, and, 
 as the prosecutor then believed, with a good intention, advised him 
 to give them something to get rid of them, and prevent mischief, 
 upon which the prosecutor gave them the money laid in the indict- 
 ment ; it was held that for the purpose of showing that this Avas 
 not bond fide advice, but, in reality, a mere mode of robbing the 
 prosecutor, evidence was admissible of other demands of money 
 made by the same mob at other houses, before and after the parti- 
 cular transaction at the prosecutor's house, but in the course of the 
 same day, and Avhen any of the prisoners Avere present. (?) So 
 upon an indictment for administering sulphuric acid to horses with 
 intent to kill them, it has been held that the prosecutor is not 
 confined to the proof of a single act of administering, but that other 
 acts of administering may be given in evidence to show Avhether it 
 was done Avith the intent charged in the indictment. (_/) So Avhere 
 upon an indictment for robbing the prosecutor of his coat, the 
 robbery having been committed l)y the prisoner's threatening to 
 charge the prosecutor Avith an unnatural crime, Holroyd, J., 
 received evidence of a second ineffectual attempt to obtain a 1/-. 
 note the folloAving evening by similar threats, and upon a case rc- 
 
 {(l) Eeg. V. Kocbnck, D. & l',. 24. ^[aule, J. See R. r. Ilanis. 4 V. k F. 
 
 (c) R. V. Francis, 43 L. J. M. C. 97, 34'J. Wills on Ciirwmstnntiiil Ev. 47. 
 
 See R. V. Holt, Bell, C. C. '280. R. v. V.&ym-x; 4 F. & F. 346. 
 
 (/) Rex V. Yoke, R. & R. 531. (?) Rex r. Winkworth, 4 (.'. & P. 444, 
 
 (g) Rey. v. Bailey, 2 Cox, C. C. 311, Parke, ^. AhUrson, J., and Vaughnn, 
 Pollock, C. 1>. A'ol. 2, p. 92:5 ; and see B., and I>ord Tonterden, C. J., after- 
 Reg. V. Taylor, 5 I'ox, C. C. 138, and wards concurred iu ojnninn. 
 other cases, vol. 2, p. ;>24. (y ) Rex r. Jlogg, 4 (.'. & V. 3^4, Park, 
 
 (A) Reg. V. Dossett, 2 C. K. 30G, J. A. J.
 
 378 i>f Evidence. [hook vi. 
 
 served the jiid^^fs were of opinion tliat the evidence was admis- 
 sible to show Lliat the prisoner was guilty of the former transac- 
 tion, {k) On a prosecution for a lil)el, the puhlieation (jf other 
 libels by the delendant, not laid in the indictment, may be },dven 
 in evidence, to show quo anirao the defendant published that in 
 question. (/) On the trial of an indictment for murder, former 
 «,nudges and antecedent menaces arc admitted to be given in evi- 
 ilenee as proof of the prisoner's malice against the decea.sed. (r/i) 
 Anil it has been considered, in a case where three persons were 
 charged with uttering a forged note, that other acts done by all of 
 them jointly, or any of them separately, shortly before the offence, 
 may be given in evidence to show the confederacy and common 
 purpose, although such acts constitute distinct felonies, {n) On an 
 indictment for sending a threatening letter, prior and subsequent 
 letters, from tlie prisoner to the party threatened, may be given in 
 evidence, as explanatory of the meaning and intent of the parti- 
 cular letter on which the indictment is framed, (o) 
 Evidenoe of Evidence of the murder of one person may be given upon the 
 
 one murder to trial for the murder of another person, if such evidence tends to 
 tivTfor coTn- show that the prisoner might have had a motive arising out of the 
 niittiugan- other murder for committing the murder with which he is charged, 
 other. Upon an indictment for the murder of one Hemmings, it was 
 
 opened that great enmity subsisted between Parker, the rector of 
 a parish, and his parishioners, and that the prisoner had used ex- 
 pressions of enmity against the rector, and had said he would give 
 oOZ. to have him shot, and that the rector was shot by Hemmings, 
 and that the persons who had employed him, fearing they should 
 be discovered as having hired him to mui-der the rector, had them- 
 selves murdered Hemmings ; and that Hemmings bones had been 
 found in a barn occupied by the prisoner at the time of the mur- 
 ders. After evidence had been given of declarations of the pri- 
 soner, showing that he entertained malice against the rector, it was 
 proposed to show that Hemmings was the person by whom the 
 rector was murdered ; it was objected that this was not admissible, 
 as the rector's death was not the subject of the present inquiry, 
 Littledalc, J., ' I think that I must receive the evidence. On the 
 part of the prosecution it is put thus — that the prisoner and others 
 employed Hemmings to murder Mr. Parker, ancl that he being de- 
 tected, the prisoner and others then murdered Hemmings, to 
 
 {k) Kexr. Egcrtoii, R. & R. 375, S. C, were rather inclined to reject evidence 
 
 mentioned by Holroyd, J., in Rex v. of what the prisoner had done to the 
 
 Ellis, ante, p. 370. deceased ten days before the cause of 
 
 {V) Ante, p. 222. Stuart v. Lovell, death, no declaration accompanying the 
 
 2 Stark. N. r. C. 95. So subsequent act : neither the evidence proposed to be 
 
 letters relating to the same subject, given nor the cause of death is stated, 
 
 although libellous themselves, are admis- The objection was that the act done could 
 
 siblc in an action for a libel, and although have no tendency to show subsequent 
 
 such libel needs no explanation. Pearson, intention. Keg. v. Mobbs, 6 Cox, C. C. 
 
 V. Lemaitre, 5 M. & Or. 700. 223. In many cases evidence of previous 
 
 (hi) 1 Phill. Ev. 476. So the dedara- violence has been given in cases of mur- 
 
 iions of the prisoner, and the seditious der without objection, and such evidence 
 
 langiiage used by him, are clearly admis- clearly tends to prove ill-will, 
 
 sible in evidence on an indictment for {n\ Rex v. Tattersall, MS. Bayley, J. 
 
 high treason, explaining his conduct, and Vol. 1, p. 157. 
 
 showing the nature and object of the con- (o) Robinson's case, 2 Leach, 749. 2 
 
 spiracy. Rex r. ^Vatson, 2 Stark. N. P. C. East, P. C. c. 23, s. 2. p. 1110. Ante, 
 
 134. 1 Phill. Ev. 471. On a trial for p. 238. 
 murder, Cresswell, J., and Williams, J.,
 
 CHAP. II. § II.] Evidence confined to Point in Issue. 379 
 
 prevent a discovery of their own guilt ; now, to ascertain whether 
 or not that was so in point of fact, it is necessary that I should 
 receive evidence respecting the murder of Mr. Parker, {i^) 
 
 Upon an indictment for murder by poisoning with arsenic, on Of other 
 the 3rd of November, 1816, evidence was given, without objection, poisonings, 
 that on the 19th of October previously the deceased drank tea 
 with the prisoner, upon which occasion she was seized with sick- 
 ness, and much indisposed ; and that on the 3rd of November she 
 again drank tea with the prisoner, and was afterwai'ds taken ill in 
 the same manner, but more violently than before, {q) So on an 
 indictment for murder by prussic acid, administered in porter on 
 the 1st of January, evidence was given, without objection, that in 
 September previously the prisoner had visited the deceased and 
 sent for some porter, and that after the prisoner left the deceased 
 was very sick and ill. (7') 
 
 If a person were charged with having wilfully poisoned another, To prove 
 and it was a question whether he knew a certain white powder to ^'"0^1^'*°^ °^ 
 be arsenic, evidence would be admissible to show that he knew 
 what the powder was, because he had administered it to another 
 person who had died, although that might be proof of a distinct 
 felony, (s) 
 
 The prisoner was indicted for the murder of her husband, Geering's case. 
 
 E-ichard Geering, in September, 1848, by arsenic. She was also Evidence of 
 
 charged in three other indictments with the murder of her son ^*^^?"' P°!" 
 ^ , , , sonings alter 
 
 George by arsenic in December, 1848, of her son James by arsenic the one 
 in March, 1849, and of an attempt to murder her son Benjamin charged, 
 by arsenic in April, 1849. {t) On the part of the prosecution 
 evidence was tendered of a ijost-raortem analysis of the intestines, 
 of the contents of the stomach, heart, &c., of Richard, James, and 
 George, and also of a medical analysis of the vomit of Benjamin, 
 who was still alive, in order to show that arsenic had been taken 
 into the stomach of the three latter persons ; that two of them had 
 died of poison, and that the symptoms of all the four were the 
 same. Evidence was also tendered that the four, during their 
 lives, lived with the prisoner, and formed part of her family ; that 
 she generally made tea for them, cooked their victuals, and dis- 
 tributed the same to them on their leaving the house to go to their 
 work in the morning. It was objected that the facts proposed to 
 be proved took place after the death of the husband, and that the 
 effect of them was to show that the three cases of poisoning were 
 felonious, (u) It was answered that the evidence was admissible 
 in order to prove, not that the prisoner had feloniously poisoned 
 the deceased, but that the deceased had in fact died of poison ad- 
 ministered by some one ; and, secondly, for the purpose of proving 
 that the death of the husband was not accidental. PoHock, C. B., 
 * I am of opinion that evidence is receivable that the death of the 
 
 (if) Re.K V. Clowes, 4 C. & P. 221. werepn'oisely the s;uik' astliosfcxiiiiuted 
 
 {(l) ]{cx V. Donnall, 2 C. & K. 308, by liis tatlicr ami his two brothers, and 
 
 note, Abbott, J. this statement liad been rechieed into 
 
 (r) Keg. V. Tawell, 2 C. & K. 309, writing, and read over to the prisoner, 
 
 note, Parke, B. and she s.iid, ' It is (juite right.' 
 
 (s) Reg. r. Dossett, 2 (_'. & K. 30G, ^(0 1 1 was conceded that the evidence 
 
 per Manic, J. would have been admissible hail the 
 
 (<) Benjamin had stated to the surgeon deaths taken place pixvioxishj to the death 
 
 who attended him, that his symptoms of the husband.
 
 380 
 
 Of Er'nlcvce. 
 
 [book vr. 
 
 Evidonco of 
 a previous 
 poisoning. 
 
 tliroo sons proooodod frotn tlio saiiif; nauso, namely, arsonir. Tlio 
 tctnlcncy of such (.'vidcnco is to prove, and to confirm tlio proof 
 already fiven, that the death of the husl)and, whfther felonious or 
 not, was occasioned i)y arsenic. In this view of the case I think 
 it wholly immaterial whether the deaths of the sons took place 
 before or after the death of the husband. The domestic history of 
 the family during the period that the four deaths occurred is also 
 receivable in evidence to show that during that time arsenic had 
 been taken by four members of it, with a view to ena])le the jury 
 to determine whether such taking was accidental or not. The 
 evidence is not inadmissible by reason of its having a tendency to 
 prove or to create a suspicion of a subsequent felony.' {v) 
 
 The prisoner and his wife were indicted for the murder of his 
 mother by poison. The prisoner's former wife died in March, 
 1861, and his present wife was then their servant. The prisoner's 
 mother live"! with him after bis second marriage, and died in 
 December, 18G1. He sold arsenic for agricultural purposes, and 
 there was evidence of administration by the prisoners of articles of 
 food in which arsenic might be contained, and of arsenical symptoms 
 following. There was, however, evidence that three hor.ses, one of 
 them belonging to the male prisoner, had been accidentally poi.soned 
 by ar.senic, and that some of his customers, against whom he was 
 not supposed to have any ill-feeling, had suffered from arsenical 
 symptoms, evidently arising from some accident ; and it was held 
 that, in order to prove that the administi-ation of the poison to the 
 mother was wilful, evidence was admissible of the circumstances 
 which attended the death of the first wife, and to show that she 
 had died of arsenic, {iv) 
 
 The prisoner was indicted for the murder of Ann James, the 
 keeper of an eating-house, of which the prisoner was the manager. 
 She had had living with her Mrs. Townsend, William, Thomas, 
 and Martin Townsend, and was visited by Jane Cafferata and her 
 husband. Between September and the February following Mrs. 
 Townsend, William, and Thomas Townsend, successively sickened 
 and died, after very short illnesses, which in each case exhibited 
 exactly similar symptoms. In February Mrs. James, who had 
 lonfj- been ill, became worse, and so continued until June, when 
 she died, and, on examination of her body, traces of a sufficient 
 quantity of antimony to have caused death were found. The other 
 bodies were examined, and all found to be saturated with antimony. 
 Evidence given before the magistrate established in his opinion a 
 r)rhnd facie case as to all four deaths against the prisoner. The 
 prosecution proposed to give evidence of the three other deaths — 
 1st, to exclude the supposition of accidental poisoning in the 
 present case; 2nd, to show that the prisoner had then antimony 
 
 (v) Reg. V. Gecring, IS Law, J. (N. S.) 
 M. C. 215. Pollock, C. B., who con- 
 sulted Aldersoii, B., amiTalfourd, J., and 
 they agreed with him in opinion, and 
 therefore the point was not resen-cd. 
 The prisoner was executed. The C. B. 
 spoke as if the third son had died when- 
 ever he mentioned the number of deaths. 
 Upon the trial of a prisoner for the murder 
 ot her infant l>y suUocation in bed, held, 
 
 til at evidence tendered to prove the previ- 
 ous death of her other children at early ages 
 was admissible, although such evidence 
 did not shew the causes from which those 
 children died. K. v. Koden, 12 Cox, 
 C. C. 630. R. V. Cotton, 12 Cox, C. C. 
 400. 
 
 (if) R^g. r. Gamer, 3 F. & F. 681, 
 4 F. & F. 346. Willes, J., after consult- 
 ing Pollock, C. B.
 
 CHAP. II. § II.] Evidence confined to Point in Issue. 
 
 in his possession, but tins could only be done by proving that he 
 administered something to two of them, and that antimony' was 
 found in them, and that they died of it ; 3rd, in order to exculpate 
 Mrs. Cafferata, whom the prisoner charged with poisoning Mrs. 
 James, it was material to prove that she could not possibly have 
 poisoned one of the other three ; 4th, as it would be competent to 
 the prisoner to prove that when all the others sickened and died he 
 was absent and could not have poisoned tlicm, so evidence might 
 be given to prove that the prisoner poisoned the whole, from the 
 four crimes being so connected as to be substantially but one 
 transaction. M^ith reference to the present question it was 
 answered — 1st, that the evidence would not exclude the supposi- 
 tion of accident in Mrs. James's case ; if the three others were wil- 
 fully poisoned by some one it would not prove as against the 
 prisoner that Mrs. James's death was not accidental ; 2nd, that 
 the mere fact of ' something ' being administered by the prisoner, 
 and of antimony being found in the bodies, did not prove posses- 
 sion by the prisoner of antimony at the time of Mrs. James's death ; 
 the ' something ' might have been exhausted by the three former 
 poisonings ; 3rd, that evidence to exculpate Mrs. Cafferata was 
 wholly collateral, unless the prisoner attempted to prove her guilt ; 
 4th, that the prisoner could not prove that he did not poison the 
 three others. Martin, B., after consulting Wilde, B., refused to 
 admit the evidence, (x) 
 
 So evidence may be given of other wounds inflicted by the 
 prisoner on other persons at the same time and place for the pur- 
 pose of identifying the instrument used. On an indictment for 
 maliciously stabbing it appeared that the prisoner stabbed both 
 the prosecutor and Redman at the same time and place, and it was 
 held that evidence might be given of the shape of the wound 
 inflicted uj)on Redman for the purpose of identifying tlie instru- 
 ment with which the wound was inflicted on the prosecutor, (y) 
 Where on a trial for murder it ajDpeared that three grenades had 
 been exploded, by one of which the deceased was killed, it was 
 held that evidence of the nature of the wounds inflicted at the 
 same time on other persons, who w^ere killed or \voundcd, was 
 admissible for the purposes of showing the character of the 
 grenades, which were the first instruments of the kind which had 
 been used, (z) 
 
 We have seen that on an indictment for embezzlement where 
 the entries of sums were correct, but the castings up incorrect, a 
 series of similar errors in casting up, botli previously and subse- 
 quently to the cases to which the indictment referred, wore held 
 
 381 
 
 Of other 
 wounds. 
 
 To show that 
 false entries 
 were inten- 
 tional. 
 
 (x) RcR. i>. Winslow, 8 Cox, _C. C. 
 397. Tlie proposed evidence is not 
 stated. This case is oiiposed to all the 
 prceeding cases, none of wliich was cited. 
 At most it can only be taken to show 
 that the learned judges in their discretion 
 did not think iit to admit the evidence. 
 With the utmost deference to tlieir 
 ojtinion, it sei'ins to have been tlie very 
 case in which the evidence ouglit to have 
 been admitted ; for it would have most 
 elfectually tended to show that theopinioa 
 
 of the medical nuMi that the jiarticular 
 death was caused by i)oison, and that that 
 poison was antimony, was correct. It 
 would also hav(! strongly tended to prove 
 that the antimony waa not taken acci- 
 dentally. C. S. G. 
 
 {;/) Hex V. Fursey, 6 C. & 1'. SI, Parke, 
 J., and (lascleo, J. 
 
 (:) Reg. r. Hernard, 1 V. k F. 210, 
 Lord Cumi)bell, ('. J., I'oUock, C. H., 
 Erie, J., and <'res.s\vel], J.
 
 382 
 
 Upon trial for 
 arxon. 
 
 Of Evidence. 
 
 [book vr. 
 
 To explain 
 facts. 
 
 To rebut an 
 alibi. 
 
 Where all the 
 acts are part 
 of the sarae 
 transaction. 
 
 Proof of other 
 nets and dc- 
 clamtions of 
 prisoner aa 
 evidence for 
 him of his 
 innocence. 
 
 n(lniisHil)l(> in order to negative the defence that these were merely 
 accidental errors. ((C) 
 
 Upon a trial for arson with intent to defraud an in.surance com- 
 pany, evidence that the prisoner had made claims on two other 
 insurance companies in respect of fires which had occurred in two 
 other houses which he had occupied previously and in succession, 
 was admitted for the purpose of showing that the fire which 
 formed the subject of the trial was the result of design and not of 
 accident. (/>) On an indictment for arson, one count laying an 
 intent to defraud, and it being opened for the pro.secution that the 
 motive might have been to realize the money insured by the pri- 
 soner upon her goods, evidence was received that she was in 
 easy circumstances, with a view to show that she was, at all events, 
 under no pecuniary temptation to commit such an act. (c) 
 
 Where on a trial for rape it was elicited on cross-examination 
 that the act had not caused any pain, Rolfe, B., held that it might 
 be proved on re-examination that the prisoner had done the .same 
 thing on previous occasions ; for that evidence tended to explain 
 the fact that the act in question had not caused any pain. (cZ) 
 
 On an indictment for robbery the defence was an alibi, and in 
 order to show that the prisoner was near the place of the robbery 
 at the time it was committed, Alderson, B., held that a witness 
 might be examined to show not merely that he had been accosted 
 by the prisoner on the road shortly before the prosecutor was 
 robbed, but that he had also been in fact robbed by the party who 
 accosted him. (e) 
 
 On an indictment for abusing a child under the age of ten years, 
 the first occasion spoken to by the child was a Thursday morning, 
 on which the prisoner threatened to beat her if she told, and it was 
 held that evidence of subsequent perpetrations of the offence on 
 Saturday and Monday was admissible. Willes, J., * The practice 
 is, no doubt, in the discretion of the Court, to call on the prosecu- 
 tion to elect, but that is a course never taken where the acts are 
 all in substance part of the same transaction ; and here, in my opi- 
 nion, it is so. It has repeatedly appeared to me, in cases of this 
 sort, that the man, by a threat of violence, deters the child from 
 complaining, and thus acquires a species of influence over her by 
 terror, which enables him to repeat the offence on subsequent oc- 
 casions, and this seems to me to give a continuity to the transac- 
 tion, which makes such evidence properly admissible.* (/) 
 
 As other acts and declarations of the prisoner, besides those 
 charged in the indictment, may be given in evidence on the part 
 of the prosecution, so he himself in his defence may in some 
 cases prove other acts and declarations of his own, as evidence of 
 his innocence. Thus on a charge of murder, expressions of good- 
 will and acts of kindness on the part of the prisoner towards the 
 deceased are always considered important evidence, as showing 
 what was his general disposition towards the deceased, from which 
 the jury may be led to conclude that his intention could not have 
 
 (a) Keg. V. Richardson, 2 F. & F. 343, 
 vol. 2, p. 386. See K. i-. Balls, 40 L. J. 
 M. C. 148. 
 
 (6) R. V. Gray, 4 F. & F. 1102. 
 
 ^.•> K. ,-. Gnmt. 4 F. * F. 322. 
 
 92 
 
 (d) Reg. .V. Chambers, 3 Cox, C. C. 
 
 (f^ Reg. V. Briggs, 2 Jf. h. Rob. 199. 
 (/) Reg. r. Reardon, 4 F. & F. 76.
 
 CHAP. II. § il] Evidence confined to Point in Issue. 383 
 
 been what the charge imputes, {g) So in the case of Rex v. Lam- 
 bert,(Ji) where the supposed Ubel, which was the subject of prose- 
 cution, was contained in a paragraph of a newspaper, of which the 
 defendants were the printer and proprietor, Lord Ellenborough, 
 C. J., held that the defendants had a right to have read in evi- 
 dence any other paragraph in the same newspaper connected with 
 the subject of the passage charged as hbellous (although disjointed 
 from it by extraneous matter, and printed in a different character) 
 for the purpose of showing the intention and mind of the defendants 
 with respect to the specific paragraph laid in the indictment. And 
 as in trials for conspiracies, whatever the prisoner may have done 
 or said at any meeting alleged to be held in pursuance of the con- 
 spiracy is admissible in evidence against him on the part of the 
 prosecution, so, on the other hand, any other part of his conduct 
 at the same meetings will be allowed to be proved on his behalf ; 
 for the intention and design of the party at a particular time are 
 best explained by a complete view of every part of his conduct at 
 that time, and not merely from the proof of a single and insulated 
 act or declaration, (i) In the case of Walker and others, who 
 were tried for a conspiracy to overthrow the Government, and 
 evidence was produced, on the part of the prosecution, to show 
 that the conspiracy existed, and was brought into overt act at 
 meetings in the presence of Walker, the counsel for the prisoners 
 was allowed to ask a witness whether, at any of these times, he 
 had ever heard Walker utter any word inconsistent with the duty 
 of a good subject. The question was opposed, but held by Mr. J. 
 Heath to be admissible. The prisoner's counsel were also allowed 
 in the same case to inquire into the general declarations of the 
 prisoner at these meetings, whether the witness had heard him say 
 anything that had a tendency to disturb the peace of the kingdom ; 
 and questions to the same effect were put to many other witnesses 
 in succession, (j) 
 
 On the trial of Hardy for high treason, where the overt act Hardy's case, 
 charged was that the prisoner, for the purpose of accomplishing 
 the treason of compassing the King's death, did conspire with 
 others to call a convention of the people, in order that the conven- 
 tion might depose the King ; the counsel for the prisoner were 
 allowed to ask a witness whether, before the time of the conven- 
 tion which was imputed to the prisoner, he had ever heard from 
 him what his objects were, and whether he had at all mixed him- 
 self in that business. (Jc) But the better opinion seems to be that, But such acta 
 
 and dcdara- 
 
 (g) 1 Phill. Ev. 470. of a sum of money advanced hy liim by 
 
 (A) 2 Campb. 400, and sec Thornton way of annuity, some letters between tlio 
 
 V. Stoi)lien, 2 M. & Rob. 4.5. The same defenchmt and Brown were jiut in ovi- 
 
 was done, in Newton v. Kowe, Glouces- dcnee on tlie part of tlie jirosecution, and 
 
 ter Spr. Ass. 1843, cor. Krskine, J. MSS. the (U'f( iico was tliat the tk'fendant lia.l 
 
 C. vS. (1. Sec Pearson v. Lemaitre, 5 M. been made a dupe by I'rowii, and was not 
 
 & Gr. 700, Canilield v. Bird, 3 C. & K. himself a participator in the fraud, and 
 
 66. Lonl Tenterdin, C. J., hold that, under 
 
 (i) 1 riiill. Kv. 478. the peculiar circumstances of the case, 
 
 (j) Ibid, and 23 St. Tr. 1131. See the wliole of the corresiKtndence between 
 
 the observations of Alderson, B., in llvg. the defendant and Brown, on both sides, 
 
 V.' Vincent, !) C & 1\ 91. previ(nisly to the time of the execution 
 
 (k-) 24 How. St. Tr. 1007. On an in- of the annuity deeds, was admissible, but 
 
 dictment for a conspiracy against the de- that all letters subse(|uent to that time 
 
 fendant and i'.rown ^wlio was gone to were inadmissible. Kex r. Whitehead, 1 
 
 America) with intent to defraud Sir C. ('. (.'. & P. (37, D. & R. N. P. R. 61. S. C.
 
 384 
 
 tions of tho 
 )iri8oiiur iiiiiHt 
 Ix) coiuioctod 
 witli tliu fiu-tH 
 provuil ajjiiinst 
 biiu. 
 
 Of Evidence. 
 
 [book VI. 
 
 Evidence of 
 several trans- 
 actions wlicu 
 cumulative 
 instiinccs are 
 necessary to 
 prove the 
 offence 
 charged. 
 
 Cases as to 
 the relevancy 
 of evidence. 
 
 Unlawful 
 assembly. 
 Hunt's case. 
 
 in onU'r Id in.ikc snch other acts or floclarutions of tho prisoner 
 jippHcahlo to his (lefencc, it must he slunvn that they are in some 
 way connected with the facts proved against him. (/) In the case 
 of lloriic Tooke and others, however, for high treason, several 
 puhlications having been given in evidence on the part of the 
 Crown, containing republican doctrines and opinions, the distribu- 
 tion of which iiad been promoted by the prisoners during the period 
 assigned in the indictment for the existence of the conspiracy, the 
 j)risoner was allowed to read in his defence various extracts 
 from works wiiich he had published at a former period of his life ; 
 and these the jury were permitted to carry along with them when 
 they retired to consider of their verdict, (m) But tlie propriety of 
 allowing such a defence has been questioned by very high 
 authority. («) 
 
 It may also happen that, from the nature of the offence charged, 
 it is imjiossiblc to confine the evidence to prof»f of a single trans- 
 action. Thus on an indictment against several defendants for a 
 conspiracy to cause themselves to be believed persons of large 
 property, for the purpose of defrauding tradesmen. Lord Ellen- 
 borough allowed the prosecutor to prove various instances of their 
 giving false representations of their circumstances ; (o) observing 
 that the indictment was for a conspiracy to carry on the business 
 of common cheats, and cumulative instances were necessary to 
 prove the offence. The same sort of evidence, said bis lordship, is 
 allowed on an indictment for barratry ; (2:>) and in a prosecution for 
 high treason itself, the gravest of all offences. 
 
 The rule is clear and general, that no question can be put which 
 is not relevant to the issue (unless for the purpose of impeaching 
 the credit of a witness) ; but the applicability of the rule must 
 obviously depend upon the j)articular circumstances of each 
 individual case, and will not admit of a general demonstration. 
 It may, however, be useful to state some criminal cases, where 
 questions as to the relevancy of evidence have arisen and been 
 decided. On the trial of an indictment against several persons for 
 a conspiracy, in unlawfully assembling for the purpose of exciting 
 discontent and disaffection, it would be irrevelant to inquire, on 
 behalf of the defendants, what the conduct of those, employed to 
 disperse the meeting, may have been at the time of the dispersion, 
 if no evidence has been previously offered, on the part of the 
 prosecution, as to the conduct of the meeting at that time or subse- 
 quently ; for the conduct of the dispersers of the meeting can 
 have no bearing on the intention and object of the meeting itself ; 
 in otlier words, it is irrelevant to the matters at issue. (</) In such 
 a prosecution, as the material points for the consideration of the 
 jm-y arc, the general character and intention of the assembly, and 
 
 (0 Rex V. Lambert, 2 Canipb. 400. 
 Lord George Gordon's case, 21 How. St. 
 Tr. 542. Hanson's case, 31 How. St. Tr. 
 4281. 1 riiill. Ev. 430. 
 
 (wi) 1 East, P. C. c. 11, s. 8, p. 61. 25 
 How. St. Tr. 545. 
 
 (ti) l^y Lord EUcuborough in Rex v. 
 Liimbert, 2 (.'ainjib. 400. 
 
 (o) Rex v. Roberts, 1 Caiiipb. 400, aiile, 
 p. 151. But see Reg. v. Steel, C. & 
 
 Mars. 337, ante, p. 151. 
 
 (/)) The ]nosecutor must, before the 
 trial, give the defendant a note of the 
 particular acts of barratry he iutends to 
 jnove against him ; and will not be at 
 liberty to give evidence of any other. 
 Vol. 1. p. 362. 
 
 (<]) Rex v. Hunt, 3 B. & A. 566, 577. 
 1 I'hill. Ev. 476. See also Redford v. 
 Burley, 3 Staik. X. P. C. S7, 88, 91.
 
 CHAP. 11. § II.] Evidence confined to Point in Issue. 
 
 the particular case of each defendant as connected with that general 
 character, it would be relevant to prove, on the part of the prose- 
 cution, that bodies of men came from different parts of the country 
 to attend the meeting, arranged and organized in the same man- 
 ner, and acting in concert. It would be relevant also to show, 
 that early on the day of the meeting, in a spot at some distance 
 from the place of meeting (from which very spot a body of men 
 came afterwards to the place of meeting), a great number of 
 persons, so organized, had assembled, and had there conducted 
 themselves in a disloyal, riotous, or seditious manner, (r) 
 Further, it would be relevant, on such trial, to produce in evidence 
 certain resolutions, which had been proposed, by one of the de- 
 fendants, at a large assembly in another part of the country, very 
 recently held for the same professed object and purpose as were 
 avowed by the meeting in question, that defendant having acted at 
 both meetings as president or chairman ; in a question of intention 
 as this is, it is most clearly relevant to show, against that indi- 
 vidual, that, at a similar meeting, held for an object professedly 
 similar, such matters had passed under his immediate auspices, (s) 
 In cases of treason and felony, it may be proved that articles 
 were found secreted in the prisoner's house, after his apprehension. 
 In Watson's case, evidence was admitted that a quantity of pikes 
 had been found secreted in the prisoner's house subsequently to 
 his apprehension, {t) With respect to writings found after the pri- 
 soner's apprehension, it appears to have been laid down in Hardy's 
 case (u) that papers found in the possession of conspirators with 
 the prisoner, but subsequently to his apprehension, ought not to 
 be read against him, unless there was evidence to sliow their pre- 
 vious existence ; for otherwise there was no evidence that the 
 prisoner was a party to it. And on a prosecution for a conspiracy, 
 it was held that some letters which were directed to the prisoners 
 and intercepted at the post-office after their apprehension, were 
 not admissible in evidence against them, as they had never been in 
 the custody of the prisoners, or in any way adopted by thcm.(v) 
 So on an indictment for uttering a forged bank-note, knowing it 
 to be forged, it was held that a letter purporting to come from the 
 prisoner's brother, and left by the postman pursuant to its direction 
 at the prisoner's lodgings, after he was apprehended, and during 
 his conlincment, but never actually in his custody, could not be 
 read in evidence as proof of his knowledge that the note was 
 forged, (^o) But in Watson's case (x) it was held tliat papers found 
 
 (r) Ibid. 
 
 (s) Rex V. Hunt, 3 B. & A. 566, 577. 
 1 Phill. Ev. 477. See also Kcdford r. 
 Barley, 3 Stark. N. P. C. 87, 88, 91. 
 
 {t) 2 Stark. N. P. C. 137. Lord 
 Ellenbnrougli, in givinrj his ojiiiiion on 
 this point, cited a case from recollection, 
 where a butler to a baidvcr at Malton 
 had been taken up U})on susjiicion of 
 having committed a great robbery ; tlio 
 prisoTiei- liad licen seen near the privy, 
 and this circumstance liaviiig excited sus- 
 picion in the minds of the counsel, who 
 considered the case during the assizes at 
 York ; at their instanci', search was made, 
 and in the privy all the plat(? was found, 
 the plate was produced, and the ]irisoncr 
 
 VOL. III. 
 
 385 
 
 was in consequence convicted ; ho had 
 been se])aratcd from the custody of the 
 plate, since he had been confuied in York 
 Castle for some time : but no doubt was 
 entertained as to the admissibility of tho 
 evidence. Abbott, C. J., also observed, 
 that an assize had scarcoly over occurR-d 
 where it did not happen that part of the 
 evidenic against a prisoner consisted of 
 proof that the stolon property w;us found 
 in his house after Ids apprehension. Seo 
 Peg. 1'. (ourvoisier. f> ('. & 1'. 362. 
 
 («) 24 How. St. Tr. 452. 
 
 {v) Hex t'. llevey, 1 Ivcach, 237. See 
 R. r. t'ooper, post, j.. 388. 
 
 ()/■) lluet's ca.se, 2 Leach, 820. 
 
 {,■) 2 Stark. N. V. C. 140. 
 
 Articles found 
 in prisoner's 
 house after his 
 apprehension. 
 
 Writings 
 found after 
 prisoner's 
 apprehension.
 
 38G Of Evidence. [book vi. 
 
 ill \\\v l()(IifiiiL,'s of a conspirator at a period siihsorincnt to llic 
 upprcliciisioii of tlic prisoner ini;4lit be read in evidence, altlioii;,di 
 no absoliito proof was given of their previous existence, wiiere 
 stronir presumption existed that the lod things had not been entered 
 by any one in the interval between the apprehension and the 
 finding, and where the papers were intimately connected with the 
 Wiitin^;s objects of thc cons])iracy as dctaihjd in evidence, {y) Writings 
 
 fouiKl III pn- found in thc ])risoner's possession, but not publislied, if plainly 
 TesXri, tii()u^'li coiiiiectcd witli tlic treasonable design charged, are evidence of 
 not piMi.slied, sucli design upon an indictment for treason, thougli not pub- 
 S'mt to tilo ^i'^l^c^^- (^) B"* ^^ seems that, if it be doubtful whether they are 
 clKirgo in tho s*^ Connected, they are not admissible, (a) In WaUon's cane, one 
 in.lutniciit. of the objections made to the admission of a paper found in the 
 house of a co-conspirator was, that there was no proof that it had 
 been published ; and Sidney's ccLse was cited : but the Court dis- 
 tinguished that case from the present, and Abbott, J., said that he 
 had always understood the ground of oVjjection in Sidney's case 
 was, not that the papers had never been published, but that they 
 had no relation to the treasonable practices charged in the indict- 
 ment, aTid he referred to 1 Ettst's P. C. 119, where it is said, 
 ' writings plainly applicable to some treasonable design in con- 
 templation are clear and satisfactory evidence of such design, 
 although not published.' If, say Mr. J. Foster and Mr. J. Black- 
 stone, ' the papers found in Sidney's closet had been plainly 
 relative to the other treasonable practices charged in the indict- 
 ment, they might have been read in evidence against him.' That 
 was the objection which had constantly been made to the reception 
 of the evidence in Sidney s case. The paper there was not only 
 an unpublished paper, but appeared to have been composed several 
 years before the crime charged to have been committed, (b) 
 
 So where on a trial for murder committed by the explosion of 
 grenades, it appeared that the grenades had been ordered by All- 
 sop, and, after the apprehension of the prisoner, a letter was found 
 in thc prisoner's house, which was in the handwriting of Allsop, 
 and bore a memorandum in the handwriting of the prisoner. It 
 Avas held that the letter was admissible. It must be assumed to 
 have been in the prisoner's possession, and it must be admitted, 
 not on the ground that the writer of it was a co-conspirator with 
 the prisoner, but on the ground that it was in the prisoner's 
 possession, and that its contents were relevant to the present 
 in(]uiry. (c) But where on an indictment for fitting out a ship to 
 
 {)j) A letter found upon the prisoner Erie, J., and Cresswell, J. The letter 
 may be read, but it is no evidence of the alluded to the assassination of the Em- 
 facts it states. Thus on an indictment peror of the French. But wlicre two 
 a^inst a person employed in the post- prisoners lodged together, and a port- 
 otlice for secreting a letter containing a mantean was found in their lodfings, 
 bill of exchange, the contents of the which Rehden said was Hare's, and the 
 letter, which was found upon him, wore prosecutor's invoice of the stolen shawls 
 held inadmissible to prove that thc bill was found in it, and also a paper folded 
 was enclosed in it. Rex v. Plumer, in the sliape of a letter, and indorsed in 
 K. <fe E. 264. Eehden's handwriting. 'J. Rehden, pri- 
 
 (2) Rex r. Watson, 2 Stark. N. V. C. vate,' and inside this was an inventory- 
 
 141. of the shawls that had been pawned, but 
 
 (a) Ibid. this was not in Rehden's handwriting • 
 
 (b) 2 Stark. N. P. C. 147. it was held that this inventory was not 
 
 (c) Reg. V. Beruiud, 1 F. & F. 240, ;ulmissible ; for hotjcww^*^ that the words 
 Lord Campbell, C. J., Pollock, C. B., ' private ' and the prisoner's name might
 
 CHAP. Ti. § II.] Evidence conjlned to Point in Issue. 
 
 be employed in the slave trade, the prisoner was a merchant in 
 London, and the ship was seized off the coast of Africa, several 
 letters then found on board of her were held inadmissible, as they 
 were not traced in anyway to his knowledge, {d) 
 
 The prisoner inserted an advertisement in a newspaper offering 
 employment to persons who would transmit him one shilling's 
 worth of postage stamps, and giving an address. The advertise- 
 ment contained false statements, and upon his being apprehended 
 six envelopes addressed to him, and containing a reply to the ad- 
 vertisement, and a shilling's worth of postage stamps were found 
 upon him. 281 other letters, contained in a scaled bag, were pro- 
 duced on the trial by a clerk from the post-office, and on the bag 
 being opened, the letters were taken out and read, and appeared to 
 be addressed to the prisoner replying to his advertisement, and 
 enclosing each one shilling's worth of postage stamps. These 281 
 letters had been stopped and opened by the post-office authorities 
 before delivery to the prisoner, and had never been in his posses- 
 sion, or their contents brought to his knowledge ; nor was there 
 any proof as to their authenticity or otherwise. Held, that they 
 were admissible against the prisoner on an indictment charging 
 him with obtaining and attempting to obtain money by false pre- 
 tences from four persons other than the writers of the letters, (c) 
 
 If the papers found in the prisoner's custody be plainly relative 
 to the design charged, they may be read in evidence without any 
 proof of the handwriting being that of the prisoner. (/). 
 
 On an indictment against a county for not repairing a public 
 bridge, the defendants may show under the general issue that the 
 bridge had been repaired from time to time by private individuals : 
 for one question is, whether the bridge is a public bridge ; and 
 upon that question it is material to inquire, by whom and in what 
 manner it had been repaired, with a view of ascertaining whether 
 those repairs were adapted to the service of the public, or merely 
 to the purposes of ornament or private convenience. {<j) It is one 
 medium of proof to show that the bridge has been repaired by 
 individuals, though that alone would be of very little weight, (/t) 
 
 In a question put by the House of Lords to the judges, in the 
 course of the proceedings in the Queen's case, it was assumed that 
 proof of the existence of a conspiracy between the prosecutor and 
 others to suborn witnesses against the accused is a legitimate 
 ground of defence. Lord Chief Justice Abbott, in delivering their 
 opinion, observed, that the judges understood that such an assump- 
 tion had been made in tlie question put to them, and that the 
 House did not ask their opinion on that point ; (i) from which it 
 may perhaps be inferred, that their lordships had doubts whether 
 such a defence is allowable. 
 
 387 
 
 Without proof 
 of being in 
 prisouer's 
 handwTiting. 
 On an indict- 
 ment against 
 a county for 
 not repairing 
 a bridge, evi- 
 dence may bo 
 given that 
 individuals 
 have repaired 
 it. 
 
 Whether a 
 prisoner may 
 in liis defence 
 give evidence 
 of a conspiracy 
 to suborn 
 witne-s-scs 
 .ogaiuist him. 
 
 not have bicu written prcviou.sly to the 
 wi'itiug on the other side. l\e<,'. r. Hare, 
 3 Cox, C. C. 2-17. Tlic Common St-rjt., 
 after consulting Maule, ,T., and Wight- 
 man, J. ]3ut nUiure whether, as the 
 portmanteau was in the prisoner's lodg- 
 ings, they were not botli of them in 
 possession of its contents? If the 
 shawls liad been in the portmanteau, 
 would they uot have been in the posses- 
 
 sion of both jirisoners ? C. .'^. G. 
 
 {(l) Reg. r. Zulueta, 1 C. & K. 21.''), 
 Manic, J., and Wightnum, J. 
 
 (.;) K. t'. Cooper, 45 L. J. U. C. 15. 
 
 (/) 1 Ea.st, P. C. c. 11, s. 5C, p. 119. 
 
 ((/) Re.v V. (Inhab.) Nortlianiptonshiif, 
 2 M. & S. 2t)2. 
 
 (/(.) 1 Thill. Ev. 170, 7th cd. 
 
 (0 The guecn's ca.sp, 2 B. & B. 310. 
 
 c 2
 
 388 
 
 Eviilenco ot 
 chjir.'ictor. 
 
 Charftclor of 
 pro.sL'cutor. 
 
 Of Kvidence. 
 
 [llOf)K VI, 
 
 EviJenco of 
 prisoner's 
 good cha- 
 racter ; 
 
 must be appli- 
 cable to the 
 charge ; 
 
 must not refer 
 to particular 
 acts. 
 
 Cross-exanii- 
 natiou as to 
 character. 
 
 Tn criinin.'il proceed ir»t,'s, wlion the prosecutor is a witness, liiw 
 chiuactcr may be attacked in the prisoner's defence, in the same 
 way as is applicable to the impeachment of tl»c credit of witnesses 
 gem-rally. In the particular instance of an indictment for a rape, 
 or for ;iii assault with an intent to commit a rape, evidence is 
 adniissil)le on the part of the prisoner, not merely, as in the case of 
 an ordinary witness, that from lier general bad character the 
 prosecutrix ought not to be believed on her oath, ]>nt her character 
 as to general chastity may be impeached by general evidence. (/•) 
 And the prosecutrix may be cross-examined as to particular dis- 
 creditable transactions, (^) and as to her having had connection 
 with the prisoner previously to the alleged rape ; {rn) and if she 
 deny such connection, the prisoner may sliow that she has been 
 previously connected with him. {n) On an indictment for an indecent 
 assault, as in cases of rape, or attempt to commit rape, the answer 
 of the prosecutrix to questions put to her on cross-examination as 
 to particular acts of connection with persons named to her, other 
 than the prisoner, is final, and the party questioning is bound 
 thereby, and if her answer be a denial the persons named cannot 
 be called to contradict her.' (o) 
 
 In all criminal prosecutions the prisoner is always permitted to 
 call witnesses to speak to his general character, (_/>) wdio are u.sually 
 examined in his behalf, as to how long they have known him, and 
 what his general character for honesty, humanity, or peaceable 
 conduct (according to the nature of the offence charged) has been 
 during that time. The inquiry ought manifestly to bear ir>orae 
 analogy and reference to the nature of the charge against the 
 prisoner. On a charge of stealing it Avould be irrelevant and 
 absm-d to inquire into his loyalty or humanity ; on a charge of 
 high treason, it would be equally absurd to inquire into his honesty 
 and punctuality in private dealings, {q) The inquiry must also be 
 made with reference to the general character of the prisoner ; for 
 it is general character alone which can afford any test of general 
 conduct, or raise a presumption that the person, who had main- 
 tained a fair reputation down to a certain period, would not then 
 begin to act an unworthy pai*t : and, therefore, proof of particular 
 transactions, in which the prisoner may have been concerned, is 
 not admissible, (r) 
 
 It is not the practice to cross-examine Avitnesses to character 
 unless there be some definite charge against the piisoner, to which 
 to cross-examine them, (s) But where a witness for the prisoner 
 
 {Jc) Vol. 1, p. 868. 
 
 \l) Rex V. Barker, 3 C. & P. 589, vol. 
 1, p. 868. 
 
 (7?i) Rex V. Martin, 6 C. & P. 562, vol. 
 1, p. 868. 
 
 {n\ Rex r. Aspinall, 3 Stark. Ev. 952, 
 vol. 1, p. 868. 
 
 (o) R. V. Holmes, 41 L. J. M. C. 12 ; 
 12 Cox, C. C. 137. Semble, that the 
 nuestion may be put to lier on cross- 
 examination, but that she is not bound 
 to answer it. 
 
 (/>) Formerly evidence of the prisoner's 
 good character was admitted in capitjil 
 ca.ses only, in favornn vita. Rex i;. 
 Harris, 2 St. Tr. 1038. This evidence is 
 
 now admitted in all prosecutions which 
 subject a man to corporal punishment ; 
 but not in actions or informations for 
 penalties, though founded on the fraudu- 
 lent conduct of the parties. Peake's Ev. 
 7. The true line of distinction, Ej-re, 
 C. B., observed, is this : in a direct pro- 
 secution for a crime such e\idence is 
 admissible ; but where the prosecution is 
 not directly for the crime, but for the 
 penalty, it is not. Attorney-General r. 
 Bowman, cited 2 B. & P. 582. 
 
 ('/) 1 Phill. Ev. 469. 
 
 (r) Ibid. R. V. Rowston, pait, 389. 
 
 (s) Rexv. Hodgkiss, 7 C. & P. 298, 
 -Vlderson, B. It sometimes, however, is
 
 CHAP. IT. § II.] Evidence conjined to Point in Issue. 389 
 
 having proved that he had known him for some yeai's, and given 
 him a good character, stated, on cross-examination, that he had 
 never heard anything against him ; but admitted that he had 
 heard of a robbery, which had taken place in the neighbourhood 
 some years previously ; and was then asked, ' Did you ever hear 
 that the prisoner was suspected of having done it ?' it Avas objected 
 that it was not competent to iu(|uire about particular otiences 
 imputed to the prisoner. Parke, B., ' The question is not whether 
 the prisoner was guilty of that robbery, but whether he was 
 suspected of having been implicated in it. A man's character is 
 made up of a number of small circumstances, of which his being 
 suspected of misconduct is one. The question may be put.' {t) 
 
 As to the course to be pursued where upon the trial of a person Whereprisoner 
 for any subsequent offence, he gives evidence of his good character, o° *™l for * 
 see vol. 1, p. 67. If a prisoner cross-examines the witnesses for the offencg''^'^ 
 prosecution as to his character, he ' gives evidence ' within the 
 meaning of these sections, and the previous conviction may be 
 proved, (^t) 
 
 The prosecutor cannot enter into the defendant's character, un- Evidence in 
 less the defendant enable him to do so, by calling witnesses in reply of pn- 
 support of it ; and even then the prosecutor cannot examine to character, 
 particular facts, the general character of the defendant not being 
 put in issue, but coming in collaterally, {v) 
 
 If a prisoner on his trial gives evidence that his character is 
 good, it is open for the prosecution, by way of reply, to prove that 
 the prisoner's character is bad — Martin, B., dubitante. Evidence 
 of character must not be evidence of particular facts, but (by all 
 the Court, except Erie, C. J., and Willes, J.,) must be evidence of 
 general reputation only, having reference to the nature of the charge. 
 On a trial for an indecent assault, where the defendant had 
 given evidence of his good character, a witness called by the prose- 
 cution to rebut such evidence, was asked, ' What is the defendant's 
 general character for decency and morality of conduct ? ' The wit- 
 ness said, ' I know nothing of the neighbourhood's opinion, because 
 I was only a boy at school when I knew him ; but my own opinion, 
 and the opinion of my brothers, who were also pupils of his, is, 
 that his character is that of a man capable of the grossest inde- 
 cency and the most flagrant immorality.' Held, by the ma- 
 jority of the judges, that this answer was not admissible in 
 evidence. {%v) 
 
 Where on an indictment for stealing a shawl evidence of the 
 prisoner's good character was given, it was held that evidence of 
 
 proper to asccrtaiu from the witnesses 
 wlu'ther they have liad .sullieient ojtpor- 
 tiinities of knowing the prisoner's charac- 
 ter ; as wlictlicr they liave lived near 
 him, or known Iiim down to the time 
 of the comniision of the ofl'ence. 
 C. S. G. 
 
 {t) Reg. V. Wood, 5 Jurist, 22.5. 
 
 («) Reg. V. Gadbury, 8 C. & P. 676. 
 Reg. r. Shrimpton, 2 Den. C. C. 319. 
 
 iy ) Bull. N. P. 296, citing Martyn v. 
 Hind. Cowp. 437. The oidinary course, 
 liowever, is to ask the witness in eross- 
 cxamiuatiou whether he has not heard 
 
 tliat the ]irisoncr has heen tried for a par- 
 ticular ollence. Hex v. Hodgkiss, 7 C. 
 & P. 2118, Alderson, 15. 
 
 (w) R. V. llowton, 34 L. .T. M. C. ^u ; 
 in Cox, C. V. 25. Per Krle, ('. J., and 
 AVilles, .T., a witness'.s individual opinion 
 respecting the general charai'ter and dis- 
 position of the prisoner with reference to 
 the charge is admissihlo, although such 
 witness knows nothing ol the jn'i.soner's 
 general rei)utation. See R. v. Hurt, 5 
 Cox, C. C. 284 ; H. v. Hughes, 1 Cox, 
 C. C. 44.
 
 390 
 
 Roply. 
 
 ( \f Evidence. 
 
 V-' 
 
 o(iK vr. 
 
 slt!aliiif:r unntlicr sli.iwl on the same evening was not admiKsiblc in 
 Miiswcrto \\w cvidoncc! of cliaractor. (.r) 
 
 ( )ii (lie tri.il of a prisoner for woun(Jinf( a constable who hiul 
 ain'strd him on suspicion of felony, the followinj,' fpicstions, in 
 onh'r to assist in showing,' that there were reasonahh; f,Tonri<ls for 
 the arrest, was put to the constable on the part of the prosecution, 
 ' Wliat do you know had been the prisoner's previous character?' 
 The answer was, ' I know the prisoner to be a very bad cliaracter.' 
 It was held by the Court that this question ought not to have been 
 put in the examination-in-chief, although it was open to the pri- 
 soner to have cross-examined the constable as to the grounds of 
 his suspicion. (?/) 
 
 Soon after the passing of the 6 & 7 Will. 4, c. 114, tlie Act 
 allowing persons indicted for felony to make their defence by 
 counsel or attorney, the judges promulgated, amongst others, the 
 following rule of practice in cases of felony, that, ' if the only 
 evidence called on the part of the prisoner is evidence to character, 
 although the counsel for the prosecution is entitled to the reply, it 
 will be matter for his discretion whether he will use it or not. 
 Cases may occur in whicli it may be fit and proper so to do.' (s) 
 And it has been since held in a case of felony that the counsel for 
 the prosecution has in strictness the right to reply, (a) on the whole 
 
 (a;) E, V. Rogau, 1 Cox, C. C. 291, 
 Eric, J. 
 
 (y) R. ». Tnrbcrfield, 34 L. J. If. C. 
 20, and 10 Cox, C. C. 1. Witli all de- 
 ference it is submitted that this decision 
 is erroneous. Every constable is justi- 
 fied in arresting any person ■whom he has 
 reasonable grounds to suspect of having 
 committed a felony ; and in every case 
 where the qiiestion arises whether he had 
 such reasonable gi-ounds of suspicion, it 
 is perfectly clear that it is competent to 
 prove the gi'ounds of such suspicion ; 
 otherwise a right to apprehend would 
 exist without the power of justifpng the 
 arrest. In civil cases (unless the defen- 
 dant be authorized to plead the general 
 issue by statute) the grounds of suspicion 
 ■muat be alleged in a jdea to an action for 
 the arrest ; Davis v. Russell, 5 Bingh. R, 
 35i ; Hailes v. Marks, 7 H. & N. 56 ; 
 and the reason is that, whether there were 
 reasonable grounds of suspicion is a 
 mixed question of law and fact. "West i'. 
 Baxendale, 9 C. B. 141 ; and as where 
 the grormds of suspicion are alh^gcd in a 
 plea, they must be proved on the trial ; 
 so where the general issue is given by 
 statute, they must be proved on the trial, 
 Davis V. Russell, supra ; and so in a 
 criminal case like the present the grounds 
 of suspicion must be proved, in order 
 that the jury may determine whether in 
 fact the gi'ounds existed, and that the 
 Court may decide, if the_v did exist, 
 whether they were rea-sonable grounds. 
 If a witness were asked whether he had 
 reasonable grounds of suspicion, the 
 question would clearly be erroneous ; 
 as the answer would be a conclusion of 
 
 law and fact. In these cases * the ques- 
 tion is on what grounds and motives the 
 constable acted at the time,' per Bur- 
 rough, J., Davis V. Russell. Now it 
 cannot be doubted that the bad character 
 of the party ma}' form one ground of sus- 
 picion : and the ordinary rule applicaldo 
 to the receipt of e\*idence of character 
 is that general evidence is alone admis- 
 sible ; but in a case like the present, as 
 both the general character of the party 
 and particular facts might operate on the 
 mind of the constable, it is plain that 
 evidence of both would be admissible. 
 It is obvious too that the general char- 
 acter of the party might be infamous, 
 and yet the constable miglit himself 
 know nothing of such general character 
 except from what he had been told by 
 others ; to limit the question, therefore, 
 to what the constable knew of the 
 prisoner would be to exclude all evidence 
 of his general character, which possibly 
 formed a most material ground of sus- 
 picion. Lastly, evidence of the cha- 
 racter or conduct of a prisoner is always 
 admissible in order to show that the acts 
 of others, especially of officers of justice, 
 are lawful ; which is a totally ditferent 
 issue from that raised as to the guilt of 
 tlie prisoner, though that issue may de- 
 pend upon the other. C. S. G. See 
 vol. 1, p. 625. 
 
 (r) Rules of Practice in cases of felony, 
 promulgated by the Judges before the 
 Spring Circuit of 1837. 7 C. & P. 676, 
 jiost, ch. 3, s. 1. 
 
 (rt) Rex r. Stannard, 7 C. & P. 673, 
 Pattesou, J., and Williams, J.
 
 CHAP. II. § III.] What Allegations must he proved. 
 
 case, and not merely on the evidence to character, (6) although the 
 counsel for the prisoner only calls witnesses to character ; but this 
 is not a right which in practice ought to be exercised, except under 
 very special circumstances, (c) 
 
 The practice in cases of misdemeanor has uniformly been that 
 when witnesses have been called, on the part of the accused, to 
 character only, and for no other purpose, the counsel for the prose- 
 cution has not addressed the jury in reply, (d) but it seems that in 
 strictness the right exists in cases of misdemeanor, though it ought 
 rarely, if ever, to be exercised, (e) 
 
 It has been usual to treat the good character of the party 
 accused as evidence to be taken into consideration only in doubtful 
 cases. Juries have generally been told that where the facts proved 
 are such as to satisfy their minds of the guilt of the party, cha- 
 racter, however excellent, is no subject for their consideration; but ^^^^ 
 that when they entertain any doubt as to the guilt of the party, 
 they may properly turn their attention to the good character which 
 he has received. It is, however, submitted with deference that the 
 good character of the party accused, satisfactorily established by 
 competent witnesses, is an ingredient which ought always to be 
 submitted to the consideration of the jury, together with the other 
 facts and circumstances of the case. The nature of the charge, and 
 the evidence by which it is supported, will often render such ingre- 
 dient of little or no avail ; but the more correct course seems to be, 
 not, in any case, to withdraw it from consideration, but to leave 
 the jury to form their conclusion, upon the whole of the evidence, 
 whether an individual whose character was previously unblemished, 
 has or has not committed the particular crime for which he is 
 called upon to answer. (/) 
 
 391 
 
 Method of 
 leaving evi- 
 dence of pri- 
 soner's cha- 
 racter to the 
 
 Sec. III. 
 
 What Allegations must be proved, and wliat may he rejected. 
 
 In the present section it is proposed to consider, 1st, What alle- 
 gations in an indictment must be proved to support it, and what 
 may be disregarded in evidence ; and, therewith, of the subjects 
 of surplusage, and the divisibility of averments. 2ndly, With 
 what precision those allegations, which caimot be disregarded 
 in evidence, must be proved ; and, therewith, of the subject of 
 variance. 
 
 (h) Rex V. Whiting, 7 C. & P. 771, 
 Bolland, B. 
 
 (c) Rex V. Stannard, supra. 
 
 (d) Per Patteson, J., in Rex v. Stan- 
 nard, 7 C. & P. 673. 
 
 (c) Rex V. Stannard, supra, per Patte- 
 son, J., and Williams, J. 
 
 (/) In Rex V. Stannard, 7 C. & P. (573, 
 Patteson, J., said, ' 1 cannot in principle 
 make any distinction between evidence of 
 facts and evidence of character ; the lat- 
 ter is equally laid before the jury as the 
 former, as being relevant to the questiou 
 
 of gniUy or not guilty ; the ol)iert of lay- 
 ing it before the jury is to induce them 
 to believe, from the improI)ability that a 
 ])erson of good charactiT should havo 
 conducted himself ;is alleged, tliat there is 
 some mistake or misrepresentatinn in the 
 evidence on the part of the prosecution, 
 and it is strictly evidence in the ciuse.' 
 And per Williams, .1., ' It is evidence to 
 bo submitted to the jury, to induce them 
 to say whether they think it likely that a 
 l)ersi)n with such a cjiaracter would Iiave 
 committed the olhuce.'
 
 Int. What 
 nllepiliDim 
 iiiiixt lio 
 proved. 
 
 Of Evidence. 
 
 [bo( 
 
 )K VI. 
 
 Surplusage. 
 KxamploH of 
 surplu&tojju. 
 
 Descriptive 
 averments. 
 No allegation 
 tan be re- 
 jected which 
 is descriptive 
 of the identity 
 of any thing 
 essential to the 
 charge. 
 
 l.st. Wliiit allegations must be proved, and what may be disre- 
 garded in evidence. In order to convict a man of an offence, all 
 tlie material facts which constitute the oft'ence, and which are 
 jiocessary to enable the parties to avail themselves of the verdict 
 and judgment, should the same charge be again brought forward, 
 nnist be stated uj)on the indictment; and all the.se re(piisite alle- 
 gations nnist be satisfied in evidence, and proved as laid. ]jut alle- 
 gations not es.sential to such a purpose, which might be entirely 
 omitted, without affecting the charge against the pri.soner, and 
 without detriment to the indictment, are considered as mere sur- 
 ])lusage, and may be disregarded in evidence, {j) Thus where 
 Pye was convicted upon an indictment, which charged him with 
 robbing Fei-nyhougli hi tlie dvjellhig-Jcou.ie o{ Anion Wilday, and 
 it was proved that the robbery was committed in a house, but it 
 did not appear who was the owner of it ; on reference to the judges, 
 they all held the' conviction proper, (k) Upon an indictment on 
 the H & 9 Will. 3, c. 26, s. 1 (now repealed) for having a die made 
 of iron and steel in possession, without lawful authority, the 
 judges, on a case reserved for their opinion, held that, as it was 
 immaterial to the offence of what the die was made, proof of a die, 
 either of iron or steel, or both, would satisfy this charge. {I) So 
 where the indictment was upon the repealed statute 4 Geo. 2, 
 c. 32, ' for stealing so much lead belonging to the Rev. G. C. W., 
 and then and there fixed to a certain building called Hendon 
 Church,' Buller, J., thought the charging the lead to be the pro- 
 perty of any one was absurd and repugnant, property (in this 
 respect) being only applicable to personal things ; that it should 
 only have been charged to be lead affixed to the church ; and that, 
 therefore, the allegation as to property ought to be rejected as sur- 
 plusage, {m) 
 
 In considering the subject of- surplusage, it must always be re- 
 membered that it is a most general rule that no allegation, 
 whether necessary or unnecessary, which is descriiitive of the iden- 
 tity of that which is legally essential to the charge in the indict- 
 ment, can ever be rejected, {n) Thus if a man were to be charged 
 with stealing a hlach horse, the allegation of colour, although uu- 
 ncces.sary, yet being descriptive of that which is material, could not 
 be rejected, (o) So upon an indictment under the 57 Geo. 3, 
 c. 90 (now repealed), for being found armed with intent to destroy 
 game in a certain wood ' called the old walk of, and belonging to, 
 and then in the occupation of, John James, Earl of Waldegi-ave,' it 
 was proved that the wood in question was in the occupation of the 
 
 tlie repealed stat. 3 "Will. & M. c. 9, s. 5, 
 for stealing in a lodging let to the pri- 
 soner, the allegation of the person by 
 irJioJii the lodging was let might not be 
 rijictcd as sur[)lusage. Rex r. Healey, 
 i;. & M. C. C. K. 1. 
 
 ()i) I Stark. Ev. 628. 
 
 ((/) 1 Stark. Ev. 374, 2nd ed. So upon 
 an indictment for stealing four live tame 
 turkeys, the judges held that the word 
 ' live,' being a description of the quality 
 of the thing stolen, could not be rejected 
 as surplusage. Eex t: Edwards, It. & R. 
 497. 
 
 (;■) Rexf. Holt, 2 Leach, 593. 5T. R. 
 446. 1 Phill. Ev. 498. Summers' case, 
 2 East, P. C. c. 16, s. 168, p. 785. War- 
 dles case, R. & R. 9. S. C. 2 East, T. 
 C. c. 16, s. 168, p. 785. 
 
 (k) Pye s case, 2 East, P. C. c. 16, s. 
 168. pi^ 785, 786, S. P. by all the judges 
 in Johnstone's case, ibid. See Minton's 
 case, 2 East, P. C. c. 21, s. 5, p. 1021. 
 
 (/) Rex V. Oxfonl, R. & R. C. C. R. 
 882. Rex r. Phillijis, ibid. 369. 
 
 (m) Rex V. Hickman, 1 Leach, 318. 
 S. C. 2 East, P. C. c. 16, s. 31, p. 593. 
 On the authority of this case, Holroyd, 
 J., doubled whether, on an indictment on
 
 CHAP. II. § III.] What Allegations must he proved. 393 
 
 Earl of Waldegrave, but it was also proved that the wood had 
 always been called the long walk, and luid never been called or 
 known by the name of the old walk. And upon a case reserved 
 for the opinion of the judges, it was held that, though it is not 
 necessary, where the name of the owner or occupier of the close is 
 stated, to state the name of the close also, yet that the averment 
 could not be rejected, and the variance was fatal, {'p) So where the 
 indictment was for breaking, &c., the house of J. Davis, * with 
 intent to steal the goods of J. Wakeliu, in the said house being,' 
 and there was no such person who had goods in the house, but 
 J. W. was put by mistake for J. D., the prisoner Avas held entitled 
 to an acquittal ; and it was ruled that the words ' of J. W.' could 
 not be rejected as surplusage, for the words were sensible and ma- 
 terial, it being material to lay truly the property in the goods ; 
 and without such words the description of the offence would be in- 
 complete, (q) This is not like the case of laying a robbery in the 
 dwelling-house of A., which turns out to be the dwelling-house of 
 B., because that circumstance is perfectly immaterial in robbery, (r) 
 Where an indictment for stealing a bank note described it as 
 signed by A. Hooper, fgr the Governor and Company of the Bank 
 of England, it was held by the judges, on a case I'eserved, that 
 there could be no conviction without evidence of the signature 
 being by A. Hoop)er. (s) 
 
 So the name of the person in whom the property which is the Name of the 
 subject of the charge is laid, or on whom the offence is stated to P^''*^- 
 have been committed, cannot be rejected as surplusage, but must 
 be proved, both as to Christian and surname, according to the in- 
 dictment ; for if the names there stated arc not his real names, or 
 the names by which he is usually known, the prisoner must be 
 acquitted (t) unless the indictment be amended vmder the 14 & 
 15 Vict. c. 100, s. 1, as it ought to be in such a case. But if 
 there be a sufficient description of the person and degree of the 
 owner of the property, Avhich is supported in evidence, and subse- 
 quent addition may, it seems, be rejected as surplusage. Thus 
 where in an indictment for larceny, before the Irish union, the 
 goods stolen were stated to be the property of ' James Hamilton, 
 Esq., coiiwionly called Earl of Clanbrassil, in the kingdom of Ire- 
 land,' and it appeared in evidence that the prosecutor was an Irish 
 peer, viz., Earl of Clanbrassil, in Ireland, the judges, on a case re- 
 served, were of opinion that, though the correct mode of describing 
 the person of the prosecutor would have been James Hamilton, 
 Esq., Earl of Clanbrassil, in the kingdom of Ireland,' yet a.s 
 ' James Hamilton, Esq.,' was a sufficient description of his person 
 and degree, the subsequent words, ' commonly called Earl of 
 Clanbrassil, in the kingdom of Ireland,' might be rejected as sur- 
 plusage, (u) 
 
 (p) Roxv. Owen, R. & M. C. C. R. (r) Ibid. 
 
 118. Sec Duroiuu's case, 1 East, T. C, (s) Rc.\ r. Craven, I!. & 11. 14. 
 
 415. S. C 1 Leacli, 351 ; Pye's case, (t) See vol. 1, \t. 58, as to variances ia 
 
 and Johnstone's case, rmtc, p. 302. resj)eet of tlie name of the jiarty injured. 
 
 {(j) Jeiik's case, 2 East, P. C. c. 15, (u) Rex v. Graham, 2 Leach," 547. 
 
 s. 25, p. 514. So also on an indictment From what is .siiid in the latter jiart of 
 
 for bm-f^lary, where the name of the the opinion of the jud<<es, as delivered 
 
 owner oi the dwelling-house is mis-stated, by I'erryn, 15., it is not clear whether 
 
 the error is fatal. Vol. 2, ]i. 44. their htrdshijis thought the words stated
 
 Conviction 
 pro tanto. 
 
 Of Evidence. 
 
 [book vt. 
 
 It is siiHiciont 
 to jinivo HO 
 iniK'li of tlio 
 iiulictinent tis 
 constitutes a 
 crinio ]>iinish- 
 utjic liv law. 
 
 Altlioiii^li it 1)(! tnio, as iibovo stated, that in order to convict a 
 man of an ot'tciice, tliat offence nnist be completely averred in the 
 indictment, .•in<l the evidence must correspond with, and support, 
 the whole ol the material averments ; yet it by no means follows 
 that it is necessary to prove tiio offence charf^ed in the indictment 
 to tJie ■}i^Jtole extent laid, for it is fully settled that in criminal cases 
 it is sufficient for the prosecutor to |)rove so much of the charge 
 as constitutes an offence punishable by law. (w) ' Tiie distinction,' 
 said Lord Kllenborough, in the case of Rex v. Hunt, (nj) 'runs 
 through the wliole criminal law, and it is invariably enough to 
 prove so much of the indictment as shows that the defendant has 
 committed a substantive crmie therein specified.' (x) On a charge 
 of petit treason, if tlie killing with mahce were proved, but no cir- 
 cumstance of aggravation were proved to make the offence trea.son- 
 able, the prisoner might have been found guilty of the murder, (y) 
 If A. be charged with the murder of B., i. e. witli feloniously 
 killing B. of malice prepense, and all but the fact of malice pre- 
 pense be proved, A. may clearly be convicted of manslaughter, for 
 the indictment contains all the allegations es.sential to that charge ; 
 A. is fully apprised of the nature of it, the verdict enaljles the 
 Court to pronounce the proper judgment, and A. may plead his 
 acquittal or conviction in bar of any subsequent indictment founded 
 on the same facts, (z) 
 
 On an indictment for burglary and stealing goods, if it appear 
 that no burglary was committed — as where the breaking and enter- 
 
 above should be rejected as surplusage, 
 or only the words 'commonly called.' 
 Whero, the prisoner was indicted for 
 stealing goods, the property of Andrew 
 Wm. Gother, Esip, and it appeared that 
 the prosecutor was not an esquire, it was 
 objected that it was a fatal variance ; but 
 I'orrough, J., overruled the objection, and 
 held that the addition of esquire to the 
 name of the person in whom the property 
 was laid, was mere surplusage. Rex v. 
 Ogilvie, 2 C. & P. 230. Keg. v. Kevs, 
 2 Cox, C. C. 225, Wilde, C. J., S. P. "^It 
 has beeu said, however, that where the 
 person injured has a name of dignity, as 
 a peer, baronet, or knight, he should be 
 described by it ; and that if he be de- 
 scribed as a knight, when in fact he is ^ 
 baronet, or the contrary, the variance 
 would be fatal ; because a name of dignity 
 is not merely an addition, but is actually 
 part of the name. Arch. Cr. P. 30. 
 
 (i') Ecx V. Hollingberry, 4 B. & C. 
 329. This rule, however, must be under- 
 stood, as it should seem, with this quali- 
 fication ; that if a prisoner be indicted 
 for murder or felony, he cannot be con- 
 victed of a misdemeanor, except it be an 
 attempt to commit the oHence charged. 
 See vol. 1, p. 62. Thus where upon the 
 f:icts stated upon a special verdict upon 
 an indictment for felony, the Court of 
 King's Bench was of opinion that the 
 prisoner could not be convicted of felony, 
 1^0, C. J., started a question, whether, 
 a.s the case amounted undoubtedly to a 
 great misdemeanor, they could not give 
 
 judgment as for a trespass : and the 
 coun.sel for the Crown, in support of the 
 ]x)wer of the Court to do so, cited 2 
 Hawk. P. C. 440, and Cro. Jac. 497. 
 Martin Leeser's case, 1 And. 351. Kel. 
 29, Dalt. 331. E conira, it was insisted 
 that by this meaus a defendant would be 
 deprived of many advantages ; for if he 
 was indicted properly, he might have 
 counsel, a copy of his indictment, and a 
 special jury. The Court ordered the pri- 
 soner to be discharged ; and .said, that in 
 the cases cited pro E>:gc, the judges 
 appear to have been transported with 
 zeal too far. Rex v. "Westbeer, 2 Stra. 
 1133. S. C. 1 Leach, 12. Prisoners were 
 indicted for feloniously assaulting the 
 prosecutor with intent to rob him (which 
 is felony by 24 & 25 Vict. c. 96, s. 42). 
 The juiy found them guilty of an assault, 
 but negatived the intent charged. Held, 
 that the prisonei-s could not, upon this 
 indictment, and finding, be convicted of 
 a common assault. R. v. Woodhall, 12 
 Cox, C. C. 240. Denman, J. 
 
 {lo) 2 Carapb. 5S5. 
 
 (.c) The same distinction applies to 
 the averments in the indictment. If an 
 oftence sufficient to maintaui the indict- 
 ment be well laid, it is enough, though 
 other matters which would increase the 
 offence are ill averred. 
 
 (y) Case of Swan and Jefferys, Fost. 
 104. 1 Phill. Ev. 501. 
 
 (z) ilackalley's case, 9 Rep. 67 h. Co. 
 Litt. 282 a. Giib. Ev. 233.
 
 CHAP. II. § [II.] What Allegations must be proved. 3f)5 
 
 ing were not in the niffht, or on a charge of robbery, where the 
 jDroperty was not taken from the person by violence, or by putting 
 in fear — the prisoner may be found guilty of the simple larceny 
 only, (a) . . 
 
 On an indictment for stealing in a dwelling-house, persons being 
 therein, and put in fear, the prisoner may be convicted of simple 
 larceny, (h) And in all complicated larcenies the prisoner may be 
 acquitted of the circumstances of aggravation, as the fear or vio- 
 lence, and found guilty of the simple larceny, (c) So upon an 
 indictment for horse-stealing, which is bad for not describing the 
 animal by any term used in the statute, there may be a conviction 
 for simple larceny, (d) So if a man had been indicted upon the 
 statute of 1 Jac. of stabbing contra for mam st at uti, the jury might 
 ac(^uit him upon the statute, and find him guilty of manslaughter 
 at common law. (e) And if a man had been indicted of stealing 
 of goods of the value of ten shillings, the jury might find him 
 guilty only of goods to the value of sixpence, and so guilty only of 
 petit larceny. (/) But in order to convict of any offence which is The minor 
 not the offence primarily charged in the indictment, it is necessary offence must 
 that the minor offence should be substantially charged in the 1".^ chavfjed m 
 indictment. Thus where an indictment alleged that the prisoners ment. 
 feloniously made an assault on the prosecutor, and feloniously and 
 violently did ' rob, steal, take, and carry away from his person 
 certain money and goods,' and the jury found that the prisoners 
 assaulted the prosecutor with intent to rob him, it was held that 
 the conviction could not be sustained, because the indictment 
 contained no statement of an intent to rob. {g) 
 
 Upon an indictment under 2-i & 2.5 Vict. c. 100, s. 20, for unlaw- 
 fully and maliciously wounding or inflicting greivous bodily harm, 
 a verdict for a common assault may be returned, {gg) 
 
 If an indictment for treason charge several overt acts, it is Instances of 
 sufficient to prove one. {li) If the indictment charges, that the 
 defendant did, and caused to be done, a particular act, as 'forged, 
 and caused to be forged,' it is enough to prove either one or 
 the other, (i) If the defendant is charged with composing, print- 
 ing, and publishing a libel, he may be convicted only of the 
 printing and publishing, {j) So where the prisoner was indicted 
 for having published a libel of and concerning certain raagis- 
 
 (livisible aver- 
 ments. 
 
 («) 2 Hale, P. C. 302. 1 Pliill. Ev. 
 501. So wheic the prisom-rs wure ac- 
 quitted of the bui'f^hiry, upon an indict- 
 ment for a, burglary aiid larceny, and 
 found guilty of stealing in the dwelling- 
 liouso to the amount of I'orty shillings, it 
 ■was holdeu that tluy wore excluded from 
 their clergy, though there wa.sTiosp])arato 
 and distinct count in the indictment on 
 the 12 Anne, c. 7, and tlic judges were 
 of ojiinion that the indictment contained 
 every charge that was necessary in an 
 indictment upon that statute. Vol. 2, 
 p. 49. lle.x V. Withal, 1 Leach, 88. 
 
 {h) Rex V. Etlierington, 2 Leach, 671. 
 S. C. 2 East, P. C. (535, vol. 2, p. 63. 
 
 (c) 2 East, P. C. 784. 
 
 {(l) Rex V. Beaney, R. & R. 41G. 
 
 (c) 2 Hale, P. C. 302. 
 
 (/) Ibid. 
 
 (f/) Reg. V. Reid, 2 Den. C. C. 88. 
 The 24 & 25 Vict. c. 96, s. 41, vol. 2, \>. 
 78, now authorizes a conviction of 
 an assault with intent to rob in siieli a 
 case. 
 
 igrj) R. V. Taylor, 11 Cox, C. C. 261, 
 ct per Kelly, C. R., althotigh the wonl 
 assault does not occur in eitluT <-ount of 
 the indictnii'nt, yet both counts necw- 
 sarily include an assault, and l>oth aro 
 counts fur misdemeanor, and the prisoner 
 having been found guilty of a coiumnn 
 assault, we are of opinion that the con- 
 viction should be uUirmcd. 
 
 (A) Fo.st 194. 
 
 (j) By Lord Mansfield in I\cx x\ Mid- 
 dlehurst, 1 I'.urr. 4(mi. 
 
 (j) Kex r. Hunt, 2 Canipb. 5S3. i:. x 
 V. Williams, ibid. 646.
 
 ;3f)r> 
 
 ( [f Evidence. 
 
 [book vt. 
 
 Joiut oflfence 
 charged 
 against seve- 
 ral, and one 
 alone con- 
 victed. 
 
 tniics, with intcMit to dcfaine tlioso in .-it^'ist rates, and also with a 
 ni.ilicioiis nifuiii Id l)rinLf tlio adiiiinistiatiun of juslico into cori- 
 tciiipt ; Jiaylcy, J., inrorined tiie jury, that if thoy were of 
 »)j)iniou that the dufcndants liad pul>li.shed the iiliel witlj either 
 of those intentions, they ought to find the prisoner guilty, (k) 
 Whore the indictment charged the prisoner with having assaulted 
 a feinal(! child, with intent to abuse and carnally to kuow her; 
 and the jury found that the prisoner assaulted the child with 
 intent to abuse lier, but negatived the intenti(;n charged carnally 
 to know her ; Holroyd, J., held that the averment of intention 
 was divisible, and that the prisoner might be convicted of an 
 assault with intent to abuse simply. {I) On an indictment oa 
 the 7 Geo, 3, c. 50, s. 1 (now repealed), stating the prisoner to 
 have been employed in two branches of the post-ofhce, proof of 
 his having been employed in either was held sufficient, (m) And 
 in the same case, the letter embezzled having been described in 
 the indictment as having contained .several note.s, proof of its 
 having contained any one of them was held sufficient, {n) Upon 
 an indictment for obtaining money under false pretence.s, it is not 
 necessary to prove the whole of the pretence charged ; proof of 
 part of the j)retence, and that the money was obtained by such 
 part, is sufficient, (o) So an indictment for embezzling need not 
 specify the exact sum embezzled ; as where the indictment charged 
 the prisoner with embezzling, among other thing.s, notes for one 
 pound each, and evidence was given that there were one pound 
 notes in the sum of money embezzled ; this was held to support the 
 indictment. (j>) AVhere an information for publishing a malicious 
 and seditious libel contained an averment that outrages had been 
 committed in and in the neighbourhood of Nottingham ; it was 
 held that such averment was divisible, and that it need not be 
 proved that they had been committed in both places, (q) But if 
 it be necessary to state a prescription in an indictment, such pre- 
 scription must be proved to the whole extent laid, otherwise the 
 consequence might be, that the record would be evidence of a right 
 which had been expressly disproved at the trial, (r) 
 
 Where the indictment charges several with a joint offence, any 
 one of them alone may be found guilty. But they cannot be 
 found guilty separately of separate parts of the charge, and if two 
 be so found guilty separately a pardon must be obtained, or nolle 
 'prosequi entered, as to the one who stands second upon the 
 verdict, before judgment can be given against the other. Thus 
 where Hempstead and Hudson were indicted upon the statute 
 of Anne for stealing in a dwelling-house to the value of 6/. \0s., 
 and the jury found Hempstead guilty as to part of the articles of 
 the value of Ql., and Hudson guilty as to the residue ; the judges, 
 
 {k) Kex V. Evans, 3 Stark. N. P. C. 
 
 35. 
 
 (0 Rex V. Dawson, 3 Stark. N. P. C. 
 62. 
 
 (m) Kex V. Ellins, R. & R. C. C. R. 
 188. Vol. 2, p. 425. And see Shaw's 
 case, ibid. p. 508. 
 
 («) Ibid. 
 
 (p) Rex V. Hill, R. & R. 190. Vol. 2, 
 p. 698. 
 
 {,p) Carson's case, R. & R. 303. So 
 
 on an indictment for extortion, alleging 
 that the defendant extorted twenty sliil- 
 lings, it is sufficient to prove that he ex- 
 torted one shilling. Per Holt, C. J., Rex 
 V. P>urdett, Lord Raym. 149. See also 
 Rex r. Gillham, 6 T. R. 265. Serjeaunt 
 V. Tilburj', 16 East, 416. Rex e. Hill, 
 1 Stark. N. P. C. 369. 
 
 (q) Rex V. Sutton, 4 M. & S. 532. 
 
 (>•) Rex V. Marquis of Buckingham, 
 4 L'anipb. 189.
 
 CHAP. II. § III.] What Allegations muat he proved. 
 
 upon a case reserved, held that judgment could not be given 
 against both, but that upon a pardon or nolle prosequi as to 
 Hudson it might be given against Hempstead, (s) 
 
 2dly. It is to be considered with what precision of proof those 
 allegations, which cannot be disregarded in evidence, must be 
 sup2:»orted ; or, in other words, what is a fatal variance between a 
 material averment in an indictment and the evidence adduced in 
 support of it. The general rule on this subject is, that a variance 
 between the indictment and the evidence is not material, provided 
 the substance of the matter be found, (t) 
 
 Upon this principle, where an indictment for the murder of a 
 Serjeant at mace of the City of London supposed that the sheriff 
 of London, upon a plaint entered, made a precept to the serjeant 
 at mace to arrest the defendant, and it appeared that there was 
 not any such precept made, and that, by the custom of London, 
 after the plaint entered, any serjeant ex officio, at the request of 
 the plaintiff, might arrest a defendant, absque aliquo pracepto, ore 
 tenus vel aliter, it was holden that this statement of the precept 
 was but circumstance, not necessary to be supported in evidence, 
 and that it was sufficient if the substance of the matter were 
 proved without any precise regard to circumstance, (u) In an in- 
 dictment for perjury in an answer to a bill in chancery, the bill was 
 stated to have been filed by A. against B. (the present defendant) 
 and another ; it appeared in evidence that it was filed against B., 
 C, and D., but the perjury was assigned on a part of the answer, 
 which was material between A. and B. ; and Lord EUenborough 
 held this not to be a fatal variance, (v) 
 
 And with respect to the proof of the offence charged the rule 
 is universal, that it is sufficient if the evidence agree in substance 
 with the averments in the indictment. Thus on an indictment 
 for murder, it will be sufficient if the manner of the death proved 
 agree in substance with that which is charged. Therefore if it 
 appear that the party was killed by a different weapon from that 
 described, it will maintain the indictment, as if a wound or bruise 
 alleged to have been given with a sword be proved to have been 
 given with a staff or axe, or a wound or bruise alleged to have 
 been given with a wooden staff be proved to have been given 
 with a stone. So if the death be laid to have been by one 
 sort of poisoning, and it turn out to have been by another, 
 the difference will not be material, (iv) But if a person be 
 indicted for one species of killing, as by poisoning, ho cannot be 
 
 397 
 
 2(lly. With 
 •what precision 
 of proof the 
 allegations 
 which cannot 
 be disregarded 
 must he sup- 
 ported, .and 
 herein of 
 variance. 
 
 Rule that it 
 will be isuffi- 
 cient to prove 
 the substance 
 of the issue. 
 
 Proof of of- 
 fence charged. 
 
 (.9) Rex V. Hempstead, R. & R. C. C. P.. 
 344. 
 
 {t) 1 East, r. C. c. 5, s. 115, p. 345. 
 
 (u) Rex V. Mackally, 9 Co. 67 a. 
 
 (v) Rex V. Benson, 2 Campli. 508, 
 S. P., by Abbott, C. .[. Rex v. Powell, 
 R. &M.'N. p. V. 101. 
 
 (to) So wliero an indictment on the 43 
 Geo. 3, c. 58, s. 2, charf^ed the jtrisoncr 
 with liaving administered to a woman a 
 decoction of a certain shrub called savin ; 
 and it appeared that the jirisoner pre- 
 pared the medicine which he adminis- 
 tered, by pouring boiling water on the 
 leaves of a shrub; the medical men who 
 
 were examined stated that sucli a pre- 
 paration is called an infusion, and not a 
 decoction (which is made liy boiling the 
 substance in the water) ; upon whi<'h tlio 
 prisoner's counsel insistcil that he wa.s 
 entitled to an acijuittal, on the ground 
 that the medi(;ine was mis-described. But 
 Lawrence, .1., overruled the objection, and 
 said tliat infusion and decoction are 
 cjns'kmijcntris, ami that the variaine wa.s 
 immaterial ; that the i|uest ion wa.s, whe- 
 ther the prisoner administered any matter 
 or tiling to till- woman t« prornrr almr- 
 tion. IJex r. l'hillip.s, 3 Canipb. 71.
 
 338 Of Evidence. [book vi. 
 
 convicted l)y cvidcTicc of a species of death entirely dififerent, as 
 l)y fsinH»tin;(, Htarvinj^, or strangling, (.r) So where ufKjn an 
 indictment for murder, wliich charg<Ml that the prisoner with a 
 certain piece of brick, wliicli he tlien and there lieid in his right 
 hand, struck the deceased, thereby giving to Viim, with the piece 
 of brick aforesaid, one mortal wound of which he died ; and the 
 jury found, not that the prisoner struck with the piece of brick, 
 but that he struck with his fist, and tliat the deceased fell from 
 the blow upon the piece of l)rick, and that the fall up(m the brick 
 was the cause of the death, the judges were unanimously of 
 opinion that the means of death were not truly stated, and that 
 the variance was fatal, {y) So where the indictment stated that 
 the prisoner assaulted the deceased, and struck and beat him on 
 the head, and then and there gave him divers mortal blows and 
 bruises of wliich he died ; and the evidence was tliat the prisoner 
 knocked the deceased down by a blow on the head, and that in 
 falling down upon the ground he received the injury which 
 caused his death ; the judges, on a case reserved, held that, the 
 cause of death not being truly stated, the prisoner could not be 
 convicted, {z) If the indictment charges that A. gave the mortal 
 blow, and that B. and C. were present, aiding and abetting, &c., 
 but on the evidence it appears that B. struck, and that A. and C. 
 were present, aiding, &c., this is not a material variance ; for the 
 stroke is adjudged in law to be the stroke of every one of them, 
 and is as strongly the act of the others, as if they all three had 
 held the weapon, and had all together struck the deceased. The 
 identity of the person supposed to have given the stroke, says Mr. 
 J. Foster, is but a circumstance, and in this case a very immaterial 
 one. (a.) 
 Matters of ' "^^^ cavSes wliich relate to the necessity of proving particular 
 
 inducement. averments,' said Mr. J. Chambre in the case of Turner v. Eyles, 
 ' only distinguish between that which is material and that which is 
 impertinent, but make no distinction between that which is in- 
 ducement, and that which is the immediate cause of action.' Mr. 
 Starkie, vol. 1, Ev. 450, note {I), observes that the distinction 
 between the gist, and that which is the inducement, is not always 
 clear. If by inducement such averments only be meant as are not 
 material, but which, if struck out, would leave a valid charge 
 behind, there is no question ; but if the term include essential and 
 material averments, then proof being necessary, legal proof is 
 essential, and that must, it should seem, depend upon the nature 
 of the allegation itself, and not upon its mere order or connection 
 in point of time, or otherwnse, with other material averments. On 
 the other hand, it is certain that whenever an allegation is 
 material and essential, whether it fall Avithin the scope of the 
 term inducement or not, or whatever its connection may be in the 
 order of time, or otherwise, with the other essential averments, it 
 must be proved according to the precise and particular, though 
 sujiei'lluous, description w'ith which it is encumbered. 
 
 (j-) 1 Eiist, P. C. c. 5, s. 107, p. 341, 139. 
 
 -2 Hale, 185. {n) Rex v. Mackally, 9 Eep. 67 h. Fost. 
 
 {y) Rex V. KeUy, R. & M. C. C. R. 351. Smith v. Taylor, 3 B. & P. 4(53. 
 
 113. Gwiuuetr. Phillip, 1 N. R. *210. 
 
 (z) Rex v. Thompson, R. & JI. C. C. R.
 
 CHAP. II. §111.] What Allegations must he proved. 399 
 
 But any difference in substance between the statements in tlie Instances of 
 indictment and the evidence, as to the offence charged, will be ^*"' 
 
 fatal. Where on an indictment under Lord EUenborough's Act, 
 the prisoner was charged with cutting I. S., and the evidence was 
 that the wounds were inflicted by stabbing and not by cutting, the 
 judges held that as the statute used the alternative 'stab or cut,' 
 the variance was fatal, (b) If, on an indictment for perjury, the 
 oath is stated to have been taken at the assizes, before justices 
 assigned to take the said assizes, it will be a fatal variance if the 
 oath was administered when the judge was sitting under the com- 
 mission of oyer and terminer and gaol delivery, (c) In an imlict- 
 ment on the 43 Geo. 3, c. oG, the intent laid was to murder, 
 to disable, or to do some grievous bodily harm ; the intent found 
 by the jury was to prevent being apprehended ; it was held by the 
 judges, on a ca-se reserved, that a conviction could not be sup- 
 ported, (d) 
 
 The name of any party whose existence is essential to the J[isnomerof 
 charge must be proved in conformity to tha.t laid in the indict- P*F*y "^^"f^ 
 ment, (e) for a misnomer of him is usually fatal. (/) And if such essential to 
 person be described as a certain person to the jurors unknown, tho charge. 
 and it appear in evidence that his name clearly was known, the 
 prisoner cannot be convicted, (g) Where a prisoner is described 
 by name simply, without addition, proof that there are two per- 
 sons of that name is no variance, for the allegation is still true. 
 Upon an indictment for an assault upon Elizabeth Edwards it 
 appeared that there were two of that name, mother and daughter, 
 and that in fact the assault had been made on the daughter ; but 
 the conviction was held to be good, (h) So Avhere an indictment 
 laid the property of a horse in Joshua Jennings, it Avas held to be 
 
 (6) Rex V. M'Dermot, R. & R. C. C. R. in a dwelling-house to the value of 5/., the 
 
 356. R. V. Plestow, 1 Campb. 494, name of tlie owner of the house must be 
 
 Cork's case, 1 Leach, 105. proved as laid, vol. 2, p. 67. So on an 
 
 (c) Rex V. Lincoln, R. & R. 421. Rut indictment for robbing a dwelling-house 
 in an indictment for perjury alleged to in the day-time, some person being 
 have been connuitted on tlie trial of a therein, the name of some person who 
 cause before one of the judges of the was in the house at the time must be cor- 
 King's Bench, without ajn'out patct per rectly stated. Rex v. Kelly, Carr. Suppl. 
 recordum., it is no variance that thepo*'i(c« 42. As to misnomer of a defendant, see 
 alleges the trial to have taken place be- vol. 1, p. 37. 
 
 fore the Lord Chief Justice, the cau.se (.7) 1 East, P. C. 651. Rex r. Robinson, 
 
 having, in fivct, been tried before the Holt, N. P. C. 595. Rex )\ "Walker. 3 
 
 judge specified. Rex v. Coppard, M. & Campb. 264. Rex v. Deakin and Smith, 
 
 M. 118, Lord Tentcrden, C. J. So where 2 Leach, 863. Rut if tlu; charge agniii.st 
 
 the indictment alleged tliat the cause an accessory is tliat tlie princijial foiony 
 
 came on to be tried before K. W., one of was committed h;/ jirrsnns itnk-noini, it is 
 
 the judges, &c., and it was stated in the no objection that the .same grantl jury 
 
 nisi prius record in the usual fonn that have found a true bill im]iuting the lu-in- 
 
 the cause was tried before the two judges cipal felony to I. S. Rex v. Hush, R. & 
 
 of assize, one of whom was E. W., it was R. 372. See vol. 2, p. 481. 
 
 held no variance. Rex v. Alford, 14 East, (h) Rex v. Peace, 3 B. & A. 579. Tho 
 
 R. 218. Court said, 'The tiuesfion here is, not 
 
 (d) Rex V. Dufhn, R. & R 365. wli.'lhcr the party lia.s been riglitly <le- 
 (c) Reg. V. Dent, 2 Cox, C. C. 354, scribed, but wlio tlio party is who is dc- 
 
 whore there was no ])roof of any Christian scribed in the indictment as having been 
 
 name. Earl of Cardigan's case, cited assaulted.' Hut, generally, if the father 
 
 Dears. C. C. 477. and son be both named A. H., bv A. H. 
 
 (/) 1 Stark. Ev. 470. See ante, p. 393, simjdy the father shall lio intend.-d. 'Wil- 
 
 as to the misnomer of the person stated son r. Stubs, Hob. 330. Lopiot v. Hrowuc, 
 
 to be the owncrnf the dwilling-houso, in 1 Salk. 7. Sweeting f. Fowler, 1 Stark, 
 
 burglary, and on an indirtment under tho N. P. C. 106. Stebbing v. Spicer, 8 C. H. 
 
 Black Act. On an iudictnieut for stealing 827.
 
 400 
 
 Of Pjvldeiice. 
 
 \',()()K VI. 
 
 Narao 
 nssuincil. 
 
 By which a 
 person ia 
 generally 
 known. 
 
 supported hy proof of projjcrty in Jo.slma .Jcrmin^fs tli(;yoini;;<T. (i) 
 So where fui indictment for peijiiry .'iiie<,'(!d a suit to have been 
 between Peacock and K. Miles, and the procf'ediiifr.s Htate<l the 
 suit to have been between Peacock and R. Miles the elder, it wa.s 
 hold no variance, (j) So where an indictment for perjury alleged 
 that there was a plaint, in which William Withers, the younger, 
 was plaintiff, and the plaint was merely ' William Withers, plain- 
 tiff',' it was held that this was no variance. (/;) The prosecutor 
 may bo described by the name he has assumed, though it is not 
 his right name ; thus where the goods stolen were laid to be the 
 property of Mary Johnson, and the prosecutrix stated that her 
 original name was Mary Davies, but that she had been called and 
 known by the name of Mary Johnson, and not Mary Davies, for 
 the last hvc years, and had not taken the name of Jolmson for 
 any purpose of concealment or of fraud ; the judges, on a case 
 reserved, were of opinion that the time the prosecutrix had Vjcen 
 known by the name of Johnson warranted her being called so in 
 the indictment. {1} And so a person is well described by the 
 name by which he is generally known. Thus where a count for 
 offering a bribe to an officer of the customs stated his name a.s 
 Thomas Dabbs, and he proved that his true name was Thomas 
 Tyrrel Dabbs, but that he generally went by the name of Thomas 
 Dabl)s, and signed his name Thomas Dabbs without Tyrrel, it 
 was held that this was no variance, (wi) So where an indictment 
 for robbery laid the property in John Hancox, and it appeared that 
 his name was John Walter Hancox, but that he was generally 
 known by the name of John Hancox, Parke, J., held that this was 
 suihcient. (n) So where in an indictment a boy was called Edward 
 Dobson, and he stated that his right name was Dobson, but that 
 most persons who knew him called liim Peach, and that liis mother 
 had married two husbands, the first named Peach and the second 
 Dobson, and that he was told by his mother that he was the son 
 of the latter, and that she always used to call him Dob.son ; it was 
 hold that the evidence that the boy's motlier had always called 
 
 (i) Hodgson's case, 1 Lewin, 230, 
 Parke, J. S. P., Bland's case, ibid. Hol- 
 land, B. 
 
 (j) Rex v. Bailey, 7 C. & P. 264, Wil- 
 liams, J., who cited a MS. case where it 
 was alleged that there was an indictment 
 against A. B. and C. D., at a former time, 
 and on the record being produced it ap- 
 peared that it was an indictment against 
 A. B. and C. D., the younger, and Law- 
 rence, J., held it a fatal variance ; on 
 which it was observed tliat that must 
 have Vieen on the ground that if a person 
 was named simply it meant the elder. 
 
 (t) Eeg. V. Withers, 4 Cox, C. C. 17. 
 Eolfe. B. 
 
 (0 Hex V. Norton, K. & K. 510. 
 
 (??)) Attorney-General v. Hawkes, 1 
 Tyrw. 3, and per Alexander, V. B., 'By 
 the aid of an averment of the identity of 
 Thomas Dabbs and Thomas Tyrrel Dabbs, 
 the defendant might plead an acciuittal 
 on this information, by way of uuirr/ois 
 acquU, to another information for ollering 
 a bribe to Thomas Tyrrel Dabbs on tliis 
 
 occasion. 
 
 (n) Rex t'. Berriman, 5 C. & P. 601. 
 See Rex v. Sheen, 2 C. k P. 634. And 
 
 see Rex v. , 6 C. & P. 408. where an 
 
 indictment for stealing a whip, the pro- 
 perty of Richard Pratt, was held to be 
 sustained by evidence that the prosecutor 
 was generally known by that name, 
 although his projjer name was Richard 
 Jeremiah Pratt. And see Williams r. 
 Bryant, 5 M. & W. 447, where the de- 
 fendant executed a bond in the name of 
 William Bryant, being known at that 
 time by that name, his real name being 
 William Francis Bryant, and the Court 
 held that the proof was sufficient upon 
 the plea of non c^t factum. In Reg. r. 
 Lippiatt, 1 Cox, C. C. 56, the indict- 
 ment charged an assault on Sarali Bath, 
 who had been christened Sarah Anne 
 Bath, but liad been known in the family 
 by the name of Sarah only ; and Cole- 
 ridge, J., is reported to have held this a 
 fatal variance. Scd quaere.
 
 CHAP. II. § III,] What Allegations must he proved. 401 
 
 him Dobson must be taken to be conclusive as to his name, and 
 that, therefore, lie was rightly described in the indictment, (o) 
 
 On an indictment for administei'ing poison to Patrick Henry Name 
 Smith, who had been christened by those names, but had been congnaation. 
 sometimes called Henry and sometimes Patrick, and never Patrick 
 Henry, except by his mother, and had been confirmed eighteen 
 years before by the name of Henry, and had generally been called 
 Henry afterwards, and had signed the name of Henr}^ when be was 
 married ; Maule, J., said, ' It appcai-s to me that the prosecutor in 
 misdescribed ; he has been commonly known by the name of 
 Henry and of Patrick, but not of Patrick Henry. Then, again, 
 although that is his name by baptism, he has since been confirmed 
 by another, and in Sir F. Oaivdys case {p ) it is laid down that 
 where a man is confirmed by a different name from his baptismal 
 one, he must be describetl by the name of confirmation. My 
 brother Coleridge agrees with me that the prisoner must be 
 acquitted.' {q) And where on the indictment of Frances Clark for ^^ dastards, 
 the murder of ' George Lakeman Clark, a base-born infant male 
 child,' it appeared in evidence that the deceased child was a bas- 
 tard son of the prisoner, and that she murdered it, as charged in 
 the indictment, but that the child was christened George Lakeman, 
 being the names of its reputed father, and that it was called George 
 Lakeman, and not by any other name known to the witnesses, and 
 that the prisoner called it George Lakeman ; the judges held that 
 as the child had not obtained his mother's name by reputation, he 
 was improperly called Clark in the indictment, and as there was 
 nothing but the name to identify him in the indictment, the con- 
 viction could not be supported, (rj And so where an illegitimate Waters' case, 
 child, three weeks old, had been baptized by the name of ' Eliza,' 
 but no surname was mentioned at the time of baptism, and neither 
 the register, nor any copy of it, was produced at the trial, and an 
 indictment for murder described her as ' Eliza Waters,' Waters 
 being tlie name of her mother ; it was held, upon a case reserved, 
 that the child had not acquired the name of Waters by reputation, 
 and that the conviction was wrong, (s) Where, however, an indict- 
 ment charged the murder of Emma Evans, and it appeared that 
 the deceased was an illegitimate child born in a workhouse, and 
 baptized on the 9th of September by the name of Emma, and 
 drowned on the 11th of the same month, when about six weeks 
 old, an<l that up to the time of the baptism she was not called by 
 any name, but that from the nintli to the 11th of September she 
 was called Emma Evans, Evans being the mother's name ; it was 
 held that there was sufficient evidence of reputation for the consi- 
 deration of the jury, and that this case was distinguishable from 
 the last, because there was no evidence there that the child was 
 ever called Waters at all. (/) And where, on an indictment for the Smith's case, 
 murder of ' a certain female child whose name to the jtirors was 
 unknown,' it appeared that the child had not bron iKqitized, but 
 
 Evans' case. 
 Name V)y 
 reputation. 
 
 (o) Ecx V. ■\Villianis, 7 C & P. 298, 
 Williams, J., after consulting Aklurson, 
 B. 
 
 (p) Co. Litt. ?, n. 
 
 (</) TJof,'. r. Sniitli, ] Cox, r. ('. 2IS. 
 15ut quaTc wlu'thiT tlio autlinritics show 
 more than that the name ot" coniirniation 
 
 is a "ood name. 
 
 {r) l!cx V. Claik, 1!. ."t \l. 35S. 
 
 (s) Kc'X V. AVatcis, li. & U. C. C. 1?. 
 457, S. V. 7 C. & 1'. '2r.O. 
 
 (/) llcg. /'. Kvans, S t". & T. 7C>'>, 
 Erskino, J., alter consul ling Tattcson, >
 
 402 
 
 Of Evidence. 
 
 [book VI. 
 
 Transposition 
 of names. 
 
 Idem sonans. 
 
 till' |tris(»iu'i- li;i(! siiid she sliould like it to be called ' ]\lary Ann,' 
 and liad called it ' Inr Mary Ann' at one time, and ' Little Mary,' 
 at another; the father was a baptist, and the child wa« a bastard, 
 and twelve days oKl ; and, upon a case reserved, it was held that 
 IIm' child had not <,^■lined a name by reputation, and tlieretore the 
 indictment was right, {v) Where an indictment for larceny laid 
 the goods stolen to be the property of Viclof)/ Jiaronefm Turkheira, 
 and the prosecutrix proved that Jjaroness Turkheim was her title 
 only, and no part of her proper name, but that she wtus not only 
 reputed to possess that title, but did actually possess it in right of 
 an estate inherited from her father, and that she had constantly 
 and uniformly acted in and been known by that appellation, but 
 that her name without her title was Selina Victoria ; the judges 
 held the description sufficient, (v) So where an informati«jn f<jr 
 libel described the prosecutor as ' His Serene Highness Charles 
 Frederick Augustus William Duke of Brunswick and Luneburg,' 
 but his proper name was Charles Frederick William Augustus 
 D'Este, and he had been formerly reigning Duke of Brunswick 
 and Lunebui-g, and was still commonly called by that title, but he 
 had in fact ceased to be reigning duke, the Court of Queen's 
 Bench held the description sufficient, as it was that by which he 
 was well known, (lu) 
 
 A transiDosition of the order in which names are borne causes a 
 variance. Thus it is a variance to describe Henry Jules Steiner as 
 Jules Henry Steiner. {x) 
 
 But if the name proved be idem sonans with that in the indict- 
 ment, and different in spelling only, the variance will be immate- 
 rial. Thus Segrave for Seagrave is no variance, (y) nor is Benedetto 
 for Beniditto, (5:) nor is McNicole for McNicoll. («) So on an in- 
 dictment for committing an offence on one John W^hyneard it 
 appeared that his name was spelt Winyard, but it was pronounced 
 Winnyard ; and the judges, on a case reserved, held that the pri- 
 soner had been rightly convicted. (6) But an indictment charging 
 the prisoner with, having personated ' Peter M'Ca7m ' is not sup- 
 ported by evidence that he personated ' Peter M'Carn.' (c) So it 
 has been decided that ' Shakespeare ' cannot be considered idem 
 sonans with ' Shakepear.' (d) Whether two names sound alike is 
 a question for the jury, and not for the court, (e) 
 
 (u) Rex V. Smith, E. & M. C. C. R. 
 402, S. C, 6 C. & P. 151. See other 
 cases on this subject, vol. 1, p. 792. 
 
 (r) SuU's case, 2 Leach, 861. An in- 
 dictment for a robbery on an xmmarried 
 woman in her maiden name is good, al- 
 though she marry before the indictment 
 is found. Rex r. Turner, 1 Leach, -536. 
 Where an indictment charged the prisoner 
 with the manslaughter of JIark Robinson, 
 and a witness stated that the deceased 
 stayed three days and nights at his inn, 
 and that he asked the deceased his name, 
 and that letters came directed in that 
 name, whieh letters were delivered to the 
 deceased, and received by him ; P'atteson, 
 J., held that the witness might be asked 
 what name the deeeased told him, as it 
 was evidence to show the name by whicli 
 be usually went. Rex v. Timmins, 7 C. & 
 r. VJ'J. 
 
 (w) Reg. V. Gregory, 8 Q. B. 508. 
 Rex )'. Sulls, 2 Leach, 861, was considered 
 by the court as decisive on the point. 
 This report omits the name Augustus 
 among the proper names, but the mar- 
 ginal note shows this was a mere mistake, 
 aud the names are all given in 2 Sess. C, 
 229. 
 
 (x) Reg. V. James, 2 Cox, C. C. 227. 
 Pollock, C. B. 
 
 ()/) "Williams r. Ogle, 2 Stra. 889. 
 
 (:) Abitbol v. Beniditto, 2 Taunt. 401. 
 Reg. r. Withers, 4 Cox, C. C. 17. 
 
 (a) Reg. i: Wilson, 1 Den. C. C. 284. 
 
 (b) Rex V. Foster, R. & K. 412. 
 
 (c) Rex c. Tannet, R. & R. 351. 
 
 ((/) Rex v. Shakespeaie, 10 East, 83. 
 So Tarbart for Tabart is a fatal variance 
 in a bail piece. Bingham r. Dickie, 5 
 Taunt. 14. 
 
 (<;) Reg. V. Davii, 2 Den. C. C. 231.
 
 CHAP. II. § lii.] WhcU Allegations vmst be proved. 
 
 Upon an indictment for robbing Thomas Bent, it was proved by 
 a witness that he knew Lieutenant Bent, and saw him sign his 
 name twice — once to the charge of the robbery, and once to the 
 deposition in support of the charge, and from those signatures he 
 knew his name to be Thomas Bent ; but, except so far as he knew 
 the fact from having seen Lieutenant Bent sign his name on those 
 occasions, he knew nothing about his Christian name. So much 
 only of the complaint and deposition as showed that they had been 
 signed by Lieutenant Bent in the presence of the witness was then 
 read ; and, upon a case reserved, it Avas held that, although the 
 evidence was open to observation to the jury, yet that there was no 
 doubt that it was admissible as evidence of the Christian name of 
 Lieutenant Bent. (/) So where an information for libel alleged 
 that a certain person had murdered E. Grimwood, and the coroner 
 proved that on the inquest on a female she was called by the 
 witnesses E. Grimwood, and he produced an inquisition on 
 paper purporting to be taken on the body of E. Grimwood, 
 ft was held that this was evidence that the deceased went by that 
 name, {g) 
 
 As to amending the indictment at the trial to make it accord 
 with the evidence, see vol. 1, p. b'2. 
 
 On the trial of indictments for offences which are not local in 
 their nature, generally speaking, it will be sufficient to show that 
 the offence was committed in some place within the county or other 
 division ; and a mistake of the place in which an offence is laid 
 will not be material upon the evidence on the plea of not guilty, 
 if the fact be proved at some other place in the same county, (/i) 
 Although the offence must be proved to have been committed in 
 the county where the prisoner is tried, yet, after such proof, the 
 acts of the prisoner in any other county, tending to establish the 
 charge against him, are properly admissible in evidence, (i) 
 
 And it is no objection in the case of a transitory felony on the 
 plea of not guilty that there is no such place or parish in the 
 county as that in which the offence is stated to have been com- 
 mitted, {j) 
 
 Since the 14 & 15 Vict. c. 100, s. 23, it is not necessary to state 
 any venue in the body of an indictment, unless a local description 
 be required. (Z.) 
 
 To the above rule, as to the parish and place being immaterial, 
 there are some exceptions ; as, if the statute upon which the in- 
 dictment is framed give the penalty to the poor of the parish in 
 which the offence was committed, the offence must be proved to 
 have been committed in the parish laid in the indictment. {I) 
 
 But if the offence be in its nature local, and there be no such 
 
 403 
 
 Evidence of 
 name. 
 
 Amending in- 
 dictment at 
 trial. 
 
 Proof of place 
 laid, where the 
 offence is not 
 local. 
 
 Nor is it any 
 defence on not 
 fiuilty that 
 there is no 
 such piirisb. 
 
 Exceptions as 
 to proof of 
 place hiid. 
 
 ^Yherc the 
 
 In this case the indictment laid stolen 
 propertj' in Darius, C, and ho said that 
 his name was Trius, and the sessions held 
 that the names were idem xonanlia, aa 
 Darius (as pronounced in tiu'. Dorset 
 dialect, D'rius) and Trius sounded alike ; 
 and it was held that it was a (piestion of 
 fact for the jury, and not of law for the 
 court ; and the judj^cs could not afKrui 
 as matter of law that the two names 
 sounded alike. 
 
 (/) Reg. V. Toole, D. & B. 191. 
 
 (7) IJcfT. V. Grejjory, 8 (}. 15. 503. 
 
 (//) 2 Hawk. r. C. c. 'J'), s. 81. 
 
 (/) 1 rhili. Ev. -JOti, (Jth ed. 
 
 Ij) Kex ?'. Woodward, .MS. Hnyley, J. 
 3 Burn J. D. & Wms. 381. S. C. K. & 
 U. ('. C. U. 3-2"., vol. 2, p. 1051. Kox v. 
 IVrkius, 4 C. & P. 3ii3, Park, J. A. J. 
 Rex V. Dowling, H. & M. N. W U. 133. 
 
 {k) See the .section, ante, vol. 1, 
 p. 21. 
 
 (/) Archb. Cr. I'l. 13. .See Hex v. 
 Glossop, 1 B. & .V. 010. 
 
 1. D 2
 
 404 
 
 Of Evidance. 
 
 [book 
 
 VI. 
 
 ofTcnro iH local placo as ilijit laiil ill tlio irulictrncnt, tho ])risonc'r must lie acf|nitt(Ml 
 the i-finHh ^j- ^y^^.\^ \oc'a\ ulVoiicc 1 if, liowevcr, the iiulictTnent contain Ji cliart'e 
 
 must 1)0 proved ,. , • , a: i xi, • i • i. i 
 
 ns laid in tho of a transitory otloncc, as larceny, the prisoner may be convicted 
 iiuliiiiiicnt. of such transitory offence, althou<,fh lie is acfjuitted of the local 
 olVcnce. {m) So the offence of stealing in the (Iwelling-house to the 
 value of live pounds is local, and, therefore, if the house be stated 
 to be situate in a parish and county, it must be proved that the 
 •whole of sucli parish is in such county, and if it be not so proved 
 the prisoner cannot be convicted of stealing in the dwelling-house 
 to the value of five pounds, but he may be of the simple lar- 
 ceny, {n) 
 
 So on an indictment against a parish for not repairing a high- 
 way, on their common law liability to repair, the part of the road 
 out of repair must be proved to be within the parish, (o) So it 
 has been held that where an injury is partly local and partly tran- 
 sitory, and a precise local description is given, a variance in proof 
 of the place is fatal to the whole, for the whole being one entire 
 fact, the local description becomes descriptive of the transitory 
 injury, {f) 
 
 Proof that the place or parish is usually and commonly known 
 by the description used is sufficient, {q) And although there 
 be two parishes of the general name, the general description will 
 be sufficient {r) 
 
 But now, Avhenever any variance occurs between any local de- 
 scription and the evidence, the court may amend the record under 
 the 14 & 15 Vict. c. 100, s. 1. (s) 
 
 In criminal prosecutions it is unnecessary to prove the time of 
 committing the offence precisely as laid, unless that particular time 
 is material ; and the facts may be proved to have occurred on any 
 day previous to the finding of the bill by the grand jury, (f) And 
 now, by the 14 & 15 Vict. c. 100, s. 24, no indictment is insuffi- 
 cient ' for omitting to state the time at which the offence was com- 
 
 Evidcnco that 
 the name is 
 usually known 
 suffices. 
 
 Amendment. 
 
 Proof of time. 
 
 (in) Eeg. V. Brookes, C. & M. 543. 
 
 {n) Reg. r. Jackson, Gloucester Spr. 
 Ass. 184-?, IMS. C. S. G., vol. 2, p. iQ. 
 
 (o) Vol. 1, p. 495. 
 
 (;)) 1 Stark. Ev, 466, citing Rex i'. 
 Cranage, 1 Salk. 385. In this case the 
 indictment stated that the defendant with 
 others riotously assembled, et quoddam 
 cnbiciilum otjusdam S. S., in domo man- 
 sionah' cujusdam David James frecjit et 
 intravit, and thirty yards of stufl' took 
 and carried away ; it appeared to be the 
 house of David Jameson ; and Parker, 
 C. J., held that this did not maintain the 
 indictment, for part is local and jiart not 
 local ; the cnhiculnm is local, the taking 
 and carrying away is not local ; but then 
 all is put together as one entire fact under 
 one description, and you cannot divide 
 them. So if there be an indictment for 
 acting a play and speaking obscene words 
 in such a parish, in a play-house in Lin- 
 coln's Inn Fields : if there be no play- 
 house in Lincoln's Inn Fields the defend- 
 ant must be aciuitted : for though the 
 words are not local, yet they are made so. 
 One may make a trespass local that is not 
 
 so. If the speaking had been alleged 
 in Lincoln's Inn Fields, then it had been 
 laid as venue ; but here it is otherwise, 
 for here it is alleged as a description 
 where the play-house stood. Per Parker, 
 C. J., ibid. 
 
 iq) 1 Stark. Et. 468. Kiiiland r. 
 Pounsett. 1 Taimt. 570. Goodtitle r. 
 Walter, 4 Taunt. 671. Per JIansfield, 
 C. J., in Vowles r. Miller, 3 Taunt. 140. 
 Eeg. r. St. John, 9 C. & P. 40. 
 
 (?•) 1 Stark. Ev. 469, citing Doe d. 
 James r. Harris, 5 M. & S. 326. Taylor 
 r. "Willans, 3 Bing. R. 449. Where an 
 indictment stated that a highway alleged 
 to be out of repair led to the parish of 
 Langwm, in the county of ]\Ioumouth, 
 and it appeared that there were two 
 parishes in the county, Langwm Isha 
 and Langwm Ucha, and that the highway 
 led to the former ; Bosamiuet, J., held 
 the description sufficient. Rex v. I^n- 
 trissent, Jlonmouth Sum. As.s. 1832. 
 MSS. C. S. G. 
 
 (s) Vol. 1, p. 52. 
 
 (0 1 Phil. Ev. 514. Rex r. Levy, 2 
 Stark. R. 458. Abbott, C. J.
 
 CHAP. II. § in.] 
 
 What Allegations must he proved. 
 
 405 
 
 value ascribed to 
 By the 14 & 15 
 for want of the 
 
 mitted in any case where time is not of the essence of the offence, 
 nor for stating the time imperfectly,' (u) and therefore it seems 
 clear that the particular time need only be proved where time is of 
 the essence of the offence, (v) 
 
 It is immaterial, in general, whether the ^-nln<^ n«orihprl fn Proof of value, 
 property in the indictment be proved or not. 
 Vict. c. 100, s. 24, no indictment is insufficient 
 statement of the value or price of any matter or thing, or the amount 
 of damage, injury, or spoil, in any case where the value, or price, or 
 the amount of damage, injury, or spoil is not of the essence of the 
 offence ; ' (tu) and, therefore, it seems clear that the value, price, or 
 amount need only be proved where it is of the essence of the offence. 
 
 As to the old rule, that the want of a videlicet would in some Videlicet, 
 cases make an averment material that would not otherwise be so ; 
 see 2 Saund. 291 c. in note (1) to Dakin's case. As a rule, the want 
 of a videlicet will never do harm where, from the nature of the 
 case, the pi'ecise sum, date, magnitude, or extent is immaterial, {x) 
 
 Where in an action for a libel contained in a pamphlet, a witness Identity, 
 proved that the defendant had given her a pamphlet, and, on a copy 
 being put in her hand, she said, ' This is my handwriting. I believe 
 this to be the pamphlet ; it was like it and in this form. I read 
 different portions of it, and lent it to several persons ; it was returned 
 to me, and I then wrote this upon it. The defendant has given me 
 different tracts at different times. I cannot swear that this is the 
 same pamphlet he gave me. It is an exact copy, if it is not the 
 same. It is the one I wrote upon. I cannot say I got back the 
 same copy I lent. I only say it is exactly like it. If that is not 
 the copy the defendant gave me, I do not know what has become 
 of it ;' it was held that there was some evidence to go to the jury 
 that the copy was the same as the defendant had given to the 
 witness, (y) 
 
 A question frequently arises in cases where the prisoner pleads identity of 
 that he has been previously acquitted, whether the acquittal has offences, 
 been of the same offence for which he is indicted. Thus where the 
 prisoners, liaving been acquitted of a rape on Mary Lee, pleaded 
 that acquittal to another indictment for a rape on Mary Lee at the 
 
 (u) Nor for stating the ofTence to have 
 beeu coraraitted on a day subsequent to 
 the finding of the indiutnient, or on an 
 impossible day, or on a day that never 
 happened. See the section, vol. 1, p. 35. 
 
 (v) And a case niiglit occur where 
 time was of the essence of the oll'enee, and 
 yet it might not be essential to prove the 
 precise time ; as, for instance, if a statute 
 made the doing of an act in certain 
 months of the year an oll'enee, it would 
 suffice to ]irove that the act was done 1)0- 
 twecn such a day and such another day 
 in those months, though the particular 
 day could not be proved. See Re.x v. 
 Chandler, 1 Ld. Kayni. 581, and Keg. v. 
 Simpson, 10 Mod. 11. 248, in note (y), 
 ante, p. 96. 
 
 {lo) See the section, vol. 1, p. 35. 
 Eex V. Forsyth, Kuss. & Ry. C. C. K. 
 274. 
 
 {x) 1 Stark. Ev. 454. Rex v. Gillham, 
 
 6 T. 11. 2tJ5. 1 Phill. Ev. 213 ?t., 7th 
 ed. 
 
 (y) Fryer v. Gathercolo, 4 E.Kch. R. 
 2G-i. Alderson, R, said, 'If I give a 
 shilling to a person to take up stairs and 
 to put away, and he hands me one luck 
 as the same, it would bo a question for 
 the jury to say whether it is the same, 
 and there is nothing unrea.sonablo if they 
 lind that it is.' AKlerson, li., also said, 
 'Suppose 1 pass my hand across my eyes 
 for an instant, so as to lo.se sight of the 
 coin for a moment, cannot I prove the 
 identity?" Tolloek, C. B., treated the 
 (piestion as ont^ of degree. The evidence 
 would be weaker or stronger in pr>q>or- 
 tion as the numbers of the w.uk were 
 more or less, and the jirobability of the 
 copy being the same wouM be greater or 
 less according as there had been more or 
 less lendings of it.
 
 406 
 
 Of Evidence. 
 
 [book VI. 
 
 same timo nnd placo as was allorjod in the other indictment, and 
 issue was taken on the identity of the rapes cliarged in the two 
 indictments, the prisoners' counsel only put in the record of the 
 previous acquittal, and the commitment of the majristrates for a 
 raj)o on Mary Lee; and Jjolland, B., told the jury that it did not 
 appear to him that there was any evidence of the identity of the 
 rajjcs charged in the two indictments, {z) 
 
 {z) Wox r. rany, 7 0. & P. 83fl, S. f. 
 Rox V. l.ca, 2 M. (.:. C. II. 0. Tlie jurj', 
 however, found a verdict fortlie prisonfrs, 
 and it ^v.^s held tliat this verdict could not 
 1)0 disturbed. F.oUand, B., was atronply 
 of f)]iiiiion tliat tiie coniniitment was not 
 nd7nissil)h\ In IJeg. v. JIartin, 8 A, & E. 
 48], l>ord Dcnnian, C. J., asked, 'Have 
 you any authority for sayinj; that identity 
 is showii privK'i facie hy collation of the 
 
 indictments ? A defendant may have 
 stolen the goods of the same party twenty 
 times ; and on Hex v. Parry being cited, 
 Lord Denman, C. J., said, ' Tlie ]»ointa8 
 to the sufficiency of the proof was not de- 
 cided l>y the fourteen judges.' lint there 
 is no doubt that there was no evidence 
 whatever f)f identity in that case. See 
 vol. 1, p. 84.
 
 407 
 
 CHAPTER THE THIRD. 
 
 OF WRITTEN EVIDEXCE, 
 
 Of the Proof and Effect of — 1. Public Documents, p. 407. — 2. 
 Private Documents, p. 433. 
 
 1st. Of the proof and effect of public documents. Public dooi- 
 
 Acts of Parliament are either public or private. The printed ™^"*^- 
 statute book is evidence of a public statute, (a) A private Act of Statutes. 
 Parliament was usually proved formerly by a copy examined with 
 the Parliament roll, {h) But now, l)y the 8 & 9 Vict. c. 113, s. 3, 
 ' all copies of private, and local and personal Acts of Parliament 
 not public Acts, if purporting to be printed by the Queen's 
 printers, and all copies of the journals of either House of Parlia- 
 ment, and of royal proclamations, purporting to be printed by the 
 printers to the Crown, or by the printers to either House of 
 Parliament, or by any or either of them, shall be admitted as 
 evidence thereof by all courts, judges, justices and others, without 
 any proof being given that such copies were so printed.' 
 
 By the 13 & 14 Vict. c. 21, s. 7, 'Eveiy Act made after (A.D. 
 18.50) shall be deemed and taken to be a public Act, and shall be 
 judicially taken notice of as such, unless the contrary be expressly 
 provided and declared by such Act.' A private Act may contain 
 clauses of a public nature, and then the Act, as far as those are con- 
 cerned, is to be regarded as a public Act. Thus a clause relating 
 to a public highway, occurring in a private Enclosure Act, has been 
 holden pi'ovable in the same way as a public Act. (c) In some 
 Acts of Parliament not relating to the kingdom at large, a special 
 clause is often inserted declaring them to be public Acts, and 
 that they shall be taken notice of as such, without being specially 
 pleaded ; in which case they are to be proved in the same manner 
 as public Acts ; it is not necessary to prove them by an examined 
 copy, or to show that the printed copy was printed by the Queen's 
 printer, (d) The clause referred to was intended for the faciUty 
 of proof; it will not give the Act the effect of a public Act for 
 other purposes, as with regard to the recital of facts contained in 
 it. (e). A clause was often formerly inserted in private Acts, pro- 
 viding that they shall be printed by the King's printer, and (hat a 
 copy so printed shall be athnitted as evidence of the Act. In such 
 cases, a copy, purporting to be printed by the King's printer, will 
 be admissible in evidence : it is not necessary to prove that the 
 Act was purchased at the King's printer. (/) By the 41 Geo. 3, 
 
 (a) Oilb. Ev. 10. 2 riiil. Ev. 127, 1 (.) 2 PliiU. Ev. 120, citing Bn-tt v. 
 
 Stark. Ev. 274. Bealcs, U. k M. 421. 
 
 (6) Bull. N. P. 22.5. (/■) 2 IMiill. Ev. ]'2'.\ Lincoln Sum. 
 
 (c) Kexv. Utteiby, 2 Phil). Ev. 128, Ass. 1832, by I'urk, J. A. .1. \l. r. 
 per llolroyd, J. Anil see Hob. 227. Wallace, 10 t'ox, T. C. 500. Where tho 
 
 (d) 2 Pliill. Ev. 128, citinj; Beaumont copy of an Act is incorn-ct, tho court 
 V. Mountain, 10 Binj,'h. K. 404. 4 M. will be governed by the Parliament roll. 
 & Sc. 177. Woodward i: Cotton, 1 C. Kex v. .leirriea, 1 Str. 4-l(). Spring ?•. 
 M. & R. 44. 4 Tyrw. 68!». Eve, 2 Mod. 210.
 
 408 
 
 Of Written Evidence. 
 
 [book VI. 
 
 rroanililo 
 
 l.l-.H.f nf flic 
 
 n'fileil. 
 
 Journals of 
 Houses of 
 rarliauiciit. 
 
 iH 
 
 tho 
 
 Gazette. 
 
 ('. !)(), s. D.mpios of ilu; statiitos of Orf-at I'litaiii and frolaiid prior 
 to tliii Union, printed by tlic printer duly aullioii/ed, shall bo re- 
 ceived us conclusive evidence of the several statutes in the courts 
 of cither kingdom. 
 
 'V\h\ preamble of a public Act of Parliament, reciting that 
 ccilain outrages had been committed in particular parts of the 
 kiML;iloni, was adjudged by the Court of King's Uench t(^ be admis- 
 sible in evidence, for the purpose of proving an introductory 
 averment in au information for a libel, that outrages of that de- 
 scription had existed. (//) 
 
 The journals of the House of Lords or of the House of Commons 
 arc evidence in criminal cases as well as in civil, and may be 
 ])roved by examined copies ; but the printed journals were not 
 formerly evidence, (/i) But now, by the S & i) Vict. c. 113, s. 3, 
 noticed (nite, p. 4()7, ' copies of tlie journals of either House of 
 Parliament, purporting to be printed by the ])rinters to the Crown, 
 or by the printers to either House of Parliament, or by any or 
 either of them, shall be admitted as evidence thereof, without any 
 proof being given that such copies were so printed.' 
 
 The public Acts of Government, and Acts by the King in his 
 political capacity, are commonly announced in the Gazette, pnib- 
 lishcd by the authority of the Crown ; and of such Acts announced 
 to the public in the Gazette, the Gazette is admitted in courts of 
 justice to be good evidence, (i) A proclamation for reprisals, pub- 
 lished in the Gazette, is evidence of an existing war. (J) Pro- 
 clamations for a public peace, or for the performance of a quaran- 
 tine, and any acts done by or to the King in his regal character, 
 may be proved in this manner, or by printed copies under the 
 8 & 9 Vict. c. 113, s. o ; (Ic) and, upon the same principle, articles of 
 war, purporting to be printed by the King's printer, are allow^ed 
 to be evidence of such articles, {l) A gazette, in which it was 
 stated that certain addresses had been presented to the King, has 
 been adjudged to bo proper evidence to prove an averment of 
 that fact in an information for a libel ; {m) for they are addresses, 
 said Lord Kenyon, C. J., of different bodies of the King's subjects, 
 received by the King in his public capacity, and they thus become 
 acts of state. And in Rex v. Forsyth, (n) the t-\velve judges seemed 
 to think that the production of the Gazette would be sufficient, 
 without proof of its being bought of the Gazette printer, or where 
 it came from. In Bex v. Sutton (o) the Court of King's Bench 
 determined that the King's proclamation (which recited that it had 
 been represented that certain outrages had been committed in 
 
 (r/) Rex V. Sutton, 4 M. & S. 532. 
 
 (/^) Lord Melville's case, 24 How. St. 
 Tr. 6S3. Chubb v. Solomons, 3 C. & K. 
 75. Jones v. IJandall, Cowj). 17. But a 
 resolution of eitlier House is not c\idence 
 of the truth of the facts there affirmed ; 
 and therefore, in the case of Titus Gates, 
 who was charged with having committed 
 perjury on the trial of persons suspected 
 of tlie Popish Plot, a resolution iu the 
 journals of the House of Commons, as- 
 serting tJie existence of the plot, was not 
 allowed to be evidence of that fact. 4 St. 
 Tr. 3f>, 1 Phill. Ev. 406, 7th ed. ; but 
 see 2 PhilL Ev. 106. 
 
 (0 2 Phill. Ev. 107, 108. 1 Stark, Ev 
 279. 
 
 U) Ibid. 
 
 (k) See this clause, ante, p. 407. See 
 also the Documentsxry Evidence Act, 
 1S6S,' post, p. 409. 
 
 (I) 2 Phill. Ev. 108, 109. See the 27 
 & 28 A'iet. c. 119, as to the articles of war 
 for the Xav)'. 
 
 (»i) Kex V. Holt, 5 T. E. 436. S. C. 2 
 Leach, 593. 
 
 (h) E. & E. 274. R. r. 'Wallaee, 10 
 Cox, C. C. 500. Ante, vol. 2, p. 461. 
 See 31 & 32 Vict. c. 37, post, p. 4o9. 
 
 (o) 4 M. & S. 532.
 
 CHAP. III. § T.] Public Documents. 409 
 
 different parts of certain counties, and offered a reward for the dis- Itecital in pro- 
 00 very and apprehension of offenders) was admissible in evidence, p^clof^ of facts 
 as proof of an introductor}'- averment in an information for a libel, recited, 
 that acts of outrage of that particular description had been com- 
 mitted in those parts of the country. 
 
 The 31 & 82 Vict. c. 37, after reciting that it is expedient to 
 amend the law relating to Evidence enacted as follows : — 
 
 Sec. 1. This Act may be cited for all purposes as the Docu- Documentary 
 mentary Evidence Act, 1868. Jsl?"'" ^'*' 
 
 Sec. 2, Primd facie evidence of any proclamation, order, or regu- , , 
 lation issued before or after the passing of this Act by Her Majesty, t^in proclama- 
 or by the Privy Council, also of any proclamation, order, or regula- tious, orders, 
 tiou issued before or after the passing of this Act by or under the ^"'^ regula- 
 authority of any such department of the Government or ofhcor as 
 is mentioned in the first column of the schedule hereto, may bo 
 given in all courts of justice, and in all legal proceedings whatso- 
 ever, in all or any of the modes hereinafter mentioned, that is to 
 say : (1). By the production of a copy of the Gazette, purporting 
 to contain such proclamation, order, or regulation. (2) By the pro- 
 duction of a copy of such proclamation, order, or regulation pur- 
 porting to be printed by the Government printer, or where the 
 question arises in a court in any British colony or possession, of a 
 copy purporting to be printed under the authority of the Legis- 
 lature of such British colony or possession. (3) By the production, 
 in the case of any proclamation, order, or regulation, issued by Her 
 Majesty or by the Privy Council, of a copy or extract, purporting 
 to be certified to be true by the Clerk of the Privy Council, or by 
 any one of the Lords or others of the Privy Council, and in the 
 case of any proclamation, order, or regulation issued by or vmder the 
 authority of any of said department or officers, by the production of 
 a copy or extract purporting to be certified to be true by the person 
 or persons specified in the second column of the said schedule in 
 connection with such departments or officer. 
 
 Any copy or extract made in pursuance of this Act may be in 
 print or in writing, or partly in print and partly in writing. No 
 proof shall be required of the handwriting or official position of any 
 person certifying, in pursuance of this Act, to the truth of any cojiy 
 of or extract from any proclamation, order, or regulation. 
 
 Sec. 3, Subject to any law that may be from time to time made 
 by the Legislature of any British colony or possession, this Act 
 shall be in force in every sucli colony and possession. 
 
 Sec. 4. If any person commits any of the offences following, that Punishment of 
 is to say : (1) Prints any copy of any proclamation, order, or regu- forgery, 
 lation which falsely purports to have been printed by the govern- 
 ment printer, or to be printed under the authority of the Legislature 
 of any British colony or ])ossession, or tenders in evidence any copy 
 of any proclamation, order, or regulation, which lalsely purports to 
 have been printed as aforesaid, knowing that the same was not so 
 printed; or, (2) Eorges, or tendeis in evidence, knowing the same 
 to have been forged, any certificate by this Act authorized to be 
 annexed to a copy of or extract from any proclamation, order, or 
 regulation, he shall be guilty of felony, and shall, on conviction, be 
 liable to be sentenced to penal servitude for such term as is pre- 
 scribed by the Penal Servitude Act, 1804', as the least term to
 
 410 
 
 Intcri)retation 
 clause. 
 
 Of Written Evidence. 
 
 [lU)OK 
 
 vr. 
 
 Act to be 
 cumulative. 
 
 wliidi .111 c)fT(>n(lor can bo sentenced to penal servitude, or to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labour. 
 
 Sec. o. The following word.s .shall in this Act have the meaning 
 hereinafter assigned to them, unless there is something in the 
 context repugnant to such construction (that is to say) : " British 
 Colony and Possession" shall for the purjioses of this Act include 
 the Channel Islands, the Isle of Man, and such territories as may 
 for the time being be vested in Her Majesty by virtue of any Act 
 of Pai'liament for the government of India, and all other Her 
 Majesty's dominions. "Legislature" shall signify any authority 
 other than the Imperial Parliament or Her Majesty in Council 
 competent to make laws for any colony or possession. "Privy 
 Council " shall include Her Majesty in Council and the Lords and 
 others of Her Majesty's Piivy Council, or any of them, and any 
 Committee of the Privy Council that is not specially named in the 
 schedule hereto. " Government Printer " .shall mean and include 
 the printer to Her Majesty, and any printer jiurporting to be the 
 printer authorized to print the statutes, ordinances, Acts of State, 
 or other public Acts of the Legislature of any British colony, or 
 possession, or otherwise, to be the Government printer of such 
 colony or possession. " Gazette " shall include the London Gazette, 
 the Edinburgh Gazette, and the Dublin Gazette, or any of such 
 gazettes. 
 
 Sec. 6. The provisions of this Act sball be deemed to be in addi- 
 tion to, and not in derogation of, any powers of proving documents 
 given by any existing statute, or existing at common law. 
 
 SCHEDULE, {po) 
 
 CoLrMN 1. 
 
 Name of Department or Officer. 
 The Commissioners of the Treasury. 
 
 The Commissioners for executing the office 
 of Lord High Admiral. 
 
 Secretaries of State. 
 
 Committee of Privy Council for Trade. 
 
 The Poor Law Board. 
 
 CoLrirx 2. 
 Names of Certifying Officers. 
 
 Any Commissioner, Secretar}', or Assist- 
 ant Secretary of the Treasury. 
 
 Any of the Commissioners for executing 
 the office of Lord High Admiral or 
 either of the Secretaries to the said 
 Commissioners. 
 
 Anv Secretary or Under Secretary of 
 State. 
 
 Any member of the Committee of Privy 
 Council for Trade, or anj' Secretary or 
 Assistant Secretaiy of the said Com- 
 mittee. 
 
 Any Commissioner of the Poor Law Board 
 or any Secretary or Assistant Secre- 
 tary of the said Board. 
 
 (oo) By the Elementary Education 
 Act, 1870 (33 k 34 Vict. c. 75), s. 83, 
 the Hocumontary Evidence Act, 1868, 
 .shall iijiply to the Education Department 
 in like manner as if the Education De- 
 partment were mentioned in the first 
 column of the schedule to that Act, and 
 any member of the Education Depart- 
 ment, or any secretary or assistant 
 secretary of the Etlucation Department, 
 were mentioned in the second column of 
 tliat schedule. 
 
 By the Post-office Act, 1870 (33 & 34 
 Viit c. 79), s. 21, the Documentary 
 
 Evidence Act, 1868, shall have effect as 
 if the Postmaster-General were men- 
 tione<l in the first column, and any 
 secretiiry or assist;\nt secretary of the 
 post-office were mentioned in the second 
 column of the schedule to that Act ; and 
 any approval of the Treasury under this 
 Act shall be deemed an order within that 
 Act. 
 
 See 33 & 34 Vict. c. 14 (the Naturali- 
 zation Act, 1870), s. 1-2 ; 34 & 35 Vict. c. 
 70 (the Local Government Board Act, 
 1871), s. 5; 36 & 37 Viet. c. 71 (the 
 Salmon Fishery Act, 1873), s. 64.
 
 CHAP. TIT. 
 
 §!•] 
 
 Puhlic Documents. 
 
 By the 8 & 9 Vict. c. 113, s. 1, ' whenever by any Act now in 
 force or hereafter to be in force any certificate, ojfficial or public 
 document, or document or proceeding of any corporation or joint 
 stock or other company, or any certified copy of any document, 
 bye-iaw, entry in any register or other book, or of any other pro- 
 ceeding, shall be receivable in evidence of any pai'ticular in any 
 court of justice, or before any legal tribunal, or either House of 
 Parliament, or any committee of either House, or in any judicial 
 proceeding, the same shall respectively be admitted in evidence, 
 provided they respectively purport to be sealed or impi'essed with 
 a stamp, or sealed and signed, or signed alone, as required, or im- 
 pressed with a stamp and signed, as directed by the respective 
 Acts made or to be hereafter made, without any proof of the seal 
 or stamp where a seal or stamp is necessary, or of the signature or 
 of the official character of the person appearing to have signed the 
 same, and without any further proof thereof in every case in which 
 the original record could have been received in evidence.' 
 
 Sec. 2. 'All courts, judges, justices, masters in chancery, mas- 
 ters of courts, commissioners judicially acting, and other judicial 
 officers shall henceforth take judicial notice of the signature of any 
 of the equity or common law judges of the Superior Courts at 
 Westminster, provided such signature be attached or appended to 
 any decree, order, certificate, or other judicial or official document.' 
 A certificate of a conviction made at the quarter sessions for a 
 borough within the Municipal Corporations Act, purporting to be 
 signed by a person described thereon as deputy clerk of the peace 
 of the said borough, and haAang the custody of the records of the 
 said quarter sessions, is admissible in evidence, under the 8 & 1) 
 Vict. c. 113, s. 1, as purporting to be made by an officer having the 
 custody of the records of the court where the conviction was made, 
 within the 5 Geo. 4, c. 84, s. 24, although the Municipal Corpora- 
 tions Act (5 & 6 Will. 4, c. 76) gave no power to appoint a deputy 
 clerk of the peace for a borough within that act. Per Bram- 
 well, B., 'A person de facto filling an office, carrying with it the 
 custody of the records of the court, may laAvfull}' give such a certi- 
 ficate, although he may not hold such office de jure, (p) 
 
 By 23 & 24 Vict. c. 127, s. 22, any list of attorneys, solicitors, 
 and conveyancers, purporting to be published by the authority of 
 the Commissioners of Inland Revenue, and to contain the names of 
 attorneys, solicitors, and conveyancers, who have ol)taincd stamped 
 certificates for the current year, on or before the first ilay of 
 January in the same year, shall, until the contrary be made to 
 appear, be evidence in all courts, and before all justices of the 
 peace and others, that the persons named therein as attorneys, 
 solicitors, or conveyancers, holding such certificates a-s aforesaid for 
 the current year, are attorneys, solicitors, or conveyancers holding 
 such certificates, and the absence of the name of any person from 
 such list shall, until the contrary be made to appear, bo evidence 
 as aforesaid, that such person is not qualified to practise as an 
 attorney, solicitor, or conveyancer under a certificate for the current 
 year ; but in the case of any person being an attorney or solicitor, 
 whose name does not appear in such list, an extract from the roll 
 
 411 
 
 Certain docu- 
 ments to be 
 received in 
 evidence ■with- 
 out proof of 
 seal or signa- 
 ture, &c., of 
 person signing 
 the same. 
 
 Courts, Sec, to 
 take judicial 
 notice of 
 signature of 
 equity or 
 common law 
 judges, &c. 
 
 Law list evi- 
 dence. 
 
 (;)) T?. V. Parsons, 3r. T,. .1. M. C.IG7.
 
 412 
 
 (]f Written Evidence. 
 
 [book 
 
 vr. 
 
 Proofs under 
 
 Extni'lition 
 
 Act, 
 
 Building So- 
 cieties Act. — 
 Proof of cer- 
 tificates and 
 rules. 
 
 of attornoy.s and .solicitors l<(')»i l)ytlio rcj;fistrar, cortifiod uTi'lor tlio 
 haiul of the Socrutary of tliulncorpuratod Law Society (wliilc such 
 Kociety pcrform.s th(3 duties of registrar), or of the registrar for the 
 time being, .shall he evidence as aforesaid of the facts appearing in 
 such extract, and in the case of any person, being a conveyancer, 
 who.se name does not appear in such list, tlie fact of his being so 
 shall be pioved in the way in wliich it is now by law require<l to 
 be proved. (7) 
 
 By the Extradition Act, 1870, 83 & 34 Vict. c. 52, s. 15, foreign 
 warrants and depositions or statements on oath, and copies thereof, 
 and certificates of or judicial documents stating the fact of a con- 
 viction, .shall be deemed duly authenticated for the purposes of 
 this Act, if authenticated in manner provided for the time being 
 by law, or authenticated as follows : — 
 
 (1). If the warrant pui-ports to be signed by a judge, magis- 
 trate, or officer of the foreign state where the same was 
 issued. 
 (2). If the depositions or statements, or the copies thereof, 
 purport to be certified under the hand of a judge, 
 magistrate, or officer of the foreign state where the 
 same were taken to be the original depositions or state- 
 ments, or to be true copies thereof, as the case may 
 requii'e ; and 
 (3). If the certificate of or judicial document stating the fact 
 of conviction purports to be certified by a judge, 
 magistrate, or officer of the foreign state where the con- 
 viction took place, and if in every case the warrants, 
 depositions, statements, copies, certificates, and judicial 
 documents, as the case may be, are authenticated by 
 the oath of some witness, or by being sealed with the 
 official seal of the minister of justice, or some other 
 minister of state. And all courts of justice, justices, 
 and magistrates shall take judicial notice of such 
 official seal, and shall admit the documents so authenti- 
 cated by it to be received in evidence without further 
 proof, {t) 
 By the Extradition Act, 1873, 36 & 37 Vict. c. 60, s. 4, it is de- 
 clared that the provisions, of the principal Act {rr) relating to deposi- 
 tions and statements on oath taken in a foreign state, and copies 
 of such original depositions and statements, do and shall extend to 
 affirmations taken in a foreign state, and copies of such affirmations. 
 By 37 & 38 Vict. c. 42 (The Building Societies Act, 1874,) s. 20, 
 any certificate of incorporation or of registration, or other docu- 
 ment relating to a society under this Act, purporting to be signed 
 by the registrar, shall, in the absence of any evidence to the con- 
 trary, be received by the court and by all courts of law and equity, 
 and elsewhere, without proof of the signature, and a printed copy 
 of the rules of a society, certified by the secretary, or other officer 
 of the society, to be a true copy of its registered rules, shall, in 
 the absence of any evidence to the contrary, be received as evidence 
 of the rules. 
 
 I'i) R. V. Wenham, 10 Cox, C. C. Q. B. 217. Ex ixirtc Dubois, 36 L. J. 
 222. M. C. 10. 
 
 u-\ S;,,^ A'v nnrt.;' Coiiiihayc, 42 L. J. {rr) The Extradition Act, 1S70.
 
 CHAP. III. § I.] Public Documents. 413 
 
 Records are proved either by producing the record itself, or by Proof of re- 
 an exemplification, or by a copy, (s) As a general rule, when mil ^°^'^- 
 tiel record is pleaded, the record, if a record of the same court, is ^'^ ^^ ^^^^^ °f 
 produced and inspected by the court ; if a record of an inferior ""^ '^ record, 
 court, it is proved by the tenor of the record certified under a 
 writ of certiorari issued by the Superior Court ; if a record of a 
 concurrent superior court, it is proved by the tenor certified under 
 a writ of certiorari, issued out of chancery, and transmitted thence 
 by writ of onittimus. {t) The issue of nul tiel record seldom 
 occurs in criminal cases, except in the instance of a plea of 
 autrefois acquit, &c. (u). 
 
 Wherever it was necessary to prove the finding or the trial of ^vhere it is 
 an indictment, the record must formerly have been regularly drawn necessary to 
 up, and either produced, or an examined copy of it produced and 1""°''® indict- 
 proved. Where, therefore, an indictment for a conspiracy alleged ^^^ ' 
 that at a Court of Quarter Sessions an indictment was preferred 
 against A. B., and found by the grand jury, the Court of King's 
 Bench held that the indictment indorsed a true bill, but without 
 any caption to it, and the minutes made by the clerk of the peace 
 containing the style of the sessions, and the minutes of the business 
 done at it, were not sufficient evidence of the finding of the bill, 
 and that the record itself or an examined copy was the only 
 legitimate evidence to prove it. (v) And so it has been held that 
 a plea of autrefois convict cannot be supported by the indictment 
 with the finding of the grand jury upon it. (;w) So where the 
 prisoner was in fact confined in Abingdon gaol, and the governor 
 of that gaol proved that he was present in Court when the prisoner 
 was tried for housebreaking, and heard sentence passed upon 
 him, and he produced the calendar of the sentences passed at those 
 assizes signed by the clerk of assize, and stated that there was not 
 any other authority for carrying into execution the sentences of 
 the Court at the assizes, even in cases of murder; ]\[aule, J., lield 
 that this was not evidence of the prisoner being in lawful custody, 
 as the sentence of the Court at the assizes could only be proved by 
 the record, (cc) Where on an indictment for the non-repair of 
 certain highways, upon the trial of which the question wa.s, 
 whether a parish was bound to repair all the highways in it as a 
 
 (.s) 1 Stark. Ev. 388. liavo to ]irovG the record of .acquittal : 
 
 (t) TiiM. 801, 804. Rose. Kv. 73. and also, it has been said, the averments 
 
 Before the 14 & 15 Vict. c. 99, .s. 13, of identity in his plea. 1 Arch. Cr. I'l. 
 
 where a record of a court of quarter SO. IJut this seems douhtful, lor if the 
 
 sessions was pleaded in a court of oyer replication is nul tiel record, it should 
 
 and terminer, or the converse, it outjlit, seem to admit the identity. See vol. 1, 
 
 in strictness, to have hcen proved as ]). 38. 
 
 above stated : but the practice, it is .said, (i-) Rex r. .*=?mith, 8 B. k 0. 341. 
 
 was to apply simply to the clerk of the (w) Hex v. Howman, 6 ('. & P. 101. 
 
 peace, or clerk of assi/e, who would make Sec the ca.sea collected in note ((/), vol. 1, 
 
 it out for you without writ, or would at- ]). 18, and Porter r. Coojier, (1 V. k P. 
 
 tend with the recor.l it.self at the trial. 3r.J, aii.l Rex r. Thriiifr, .'i <\ & P. M7, 
 
 Arch. Cr. PI. 124. 8ee now the above where Curney, P. held that the minute 
 
 Act, noticed, ;)0S<, p. 41.''), which it seems book of the Court of (,>uarter Sc.ssion.s 
 
 a])i)!ies in the cases mentioned in it, was not admissible in evidence on an in- 
 
 wliere there is an issue oi iiul tiel re- dictment for perjurj- to prove the trial on 
 
 PQj-j which the i>erjury was alleged to have 
 
 (») In which case it seems, the 14 been committed ; and Hex v. Bellamy, 
 
 & l.T Yirt. c. 99, s. 13, jmif, 41.'), an- H. & U. N. P. H. 171. 
 
 jilics. Upon tliis plea, the proof of the (.v) Keg. v. Bourdon, 2 C. S: K. .366. 
 issue lies on the defendant, and he will
 
 414 
 
 Of Wntien Evidence. 
 
 [book VI. 
 
 Minutes ad- 
 missible 
 during the 
 same assizes. 
 
 Trials of 
 appeals. 
 
 parish, ur the several townships the highways situate in eacli of" 
 them, in order to prove the conviction of tlie parish upon a similar 
 indictment in IJSOO, a witness proved that he went to the house of 
 the clerk of assize for tlie Oxford circuit, in London, and there 
 saw him and his son, and asked for the record, and received a 
 written paper, which he produced, which lie and the son of the 
 clerk of assize compared with a document then produced as the 
 record, and which the witness stated he thought was on paper, but 
 he was not sure whether it was on paper or parchment, but it 
 was much torn, and the son of the clerk of assize stated that 
 he could not recollect the particular transaction ; but the practice 
 was, when a record was required, to make it out from the minutes 
 and the indictment on an original parchment roll, which was 
 signed by the clerk of assize, and a copy was then made on paper 
 and compared with the roll, and stamped with the Oxford circuit 
 stamp, which copy was given to the party applying for it, and 
 that, as far as his own experience went, the roll was drawn up 
 from the indictment and minutes, without any paper draft in the 
 first instance being maile, and that he never knew of a paper-copy 
 having been kept ; and that the paper produced Avas signed by 
 his father and stamped with the circuit stamp ; Coleridge, J., 
 held that the paper Avas admissible as an examined copy of the 
 record, {y) 
 
 The minutes of a Court of oyer and terminer may be received, 
 Avhere the matter to be proved by the minutes has occurred before 
 the same Court sitting under the same commission ; as upon the 
 trial of Home Tooke, where the minutes of the Court were received 
 as proof of the trial of Hardy, {z) So the indictment with the 
 officer's note upon it of a verdict of not guilty is sufficient evidence 
 during the same assizes, upon a plea of autrefois acquit, that the 
 prisoner was acquitted upon such indictment, (a) And so the 
 caption of the general gaol delivery of the Central Criminal Court, 
 the indictment with the note of the prisoner's plea, the verdict and 
 the sentence entered thereon, together with the minutes of the 
 trial entered by the officer of the Court in the minute book, are 
 sufficient evidence at a subsequent session of the Central Criminal 
 Court, (h) 
 
 But although it was once held, on the trial of an indictment for 
 perjury alleged to have been committed on the trial of an appeal 
 against an order of removal, that the sessions book produced by the 
 clerk of the peace was not sufficient to prove the trial of the 
 appeal ; (c) yet where on an appeal against an order of removal the 
 book containing the proceedings at the sessions Avas proved to be 
 the original sessions book, regularly made up and recorded after 
 each sessions by the clerk of the peace, from minutes taken by 
 him in Court, and the minutes of each sessions were headed by an 
 
 (y) Keg. V. The Inhabitants of Pem- 
 bridge, C. & M. 157. 
 
 (;) 2 Phill. Ev. 135, citing 25 St. Tr. 
 446. 
 
 («) Rex V. PaiTV, 7 C. & P. 836, Hol- 
 land, B. 
 
 {b) Reg. r. Newman, 2 Den. C. C. 
 390 ; 21 L. J. M. C. 75, ante, p. 89. 
 
 ('■) Rex r. AVaid, C. & P. 366, Park. 
 
 J. A. J. The clerk of the peace stated 
 that he should have drawn up a record 
 on parchment, if he had been applied to 
 so to do, and the case does not state what 
 the form of the entrj- in ihe book was. 
 See the observations of the court on this 
 case in Reg. v. Yeovely, 8 A. & E. 806, 
 in/ra.
 
 CHAP. III. 
 
 §!•] 
 
 Fuhlic Documents. 
 
 415 
 
 entry containing the style and date of the sessions, and the names 
 of the justices in the usual form of a caption, and no other record 
 was kept of the proceedings of the sessions than the said sessions 
 book, and it had always been received in evidence in the Court of 
 Quarter Sessions, for the purpose of proving them ; the Court of 
 Queen's Bench held, that such book was properly received in 
 order to prove the quashing of an order of removal on the trial of 
 a former appeal between the same parishes, {d) 
 
 Whenmt^ tiel record is not pleaded, but it is necessary to prove 
 a record in support of some allegation in the pleadings, the record 
 may be proved either by an exemplification or a copy. Exempli- 
 fications are either under the great seal or under the seal of the 
 Court in which the record is produced, and are admissible with- 
 out proof of the genuineness of the seal, (e) A record may also 
 be proved by an examined copy, except upon the issue of nul tiel 
 record. (/) The copy must be proved by some witness who has 
 examined it line for line with the original, or who has examined 
 the copy while another read the original, (g) It ought to appear 
 that the record from which the copy was taken was seen in the 
 hands of the proper officer, or in the proper place for the custody 
 of such records. (Jt) So an office copy in the same Court in the 
 same cause, is equivalent to a record ; but in another court, or in 
 another cause in the same Court, the copy must be proved, (i) 
 In order to prove a verdict, a copy of the whole record, including 
 the judgment, is necessary, for otherwise it would not appear but 
 that the judgment had been arrested, or a new trial granted, (j) 
 Where an indictment for perjury alleged that Burrastou was con- 
 victed upon an indictment for perjury, upon the trial of which the 
 perjury in question was alleged to have been committed, and it 
 appeared by the record when produced that Burraston had been 
 convicted, but the judgment against him reversed upon error after 
 the finding of the present indictment, it was held that the record 
 produced supported the allegation in the indictment, {k) 
 
 By the 14 & 15 Vict. c. 99, s. 13, 'whenever in any proceeding 
 whatever (I) it may be necessary to prove the trial and conviction 
 or acquittal of any person charged with any indictable offence, it 
 shall not be necessary to produce the record of the conviction or 
 acquittal of such person, or a copy thereof, but it shall l)e sufficient 
 that it be certified or purport to be certified under the hand of the 
 clerk of the Court or other officer having the custody of the records 
 of the Court where such conviction or ac(|uittal took phice, or by 
 the deputy of such clerk or other officer, that the paper produced 
 
 (d) lies. r. Yfovi'ly, 8 A. & E. 806, .iiid 
 see per Piittesoii, .T. , in Rex v. Notting- 
 ham (Jlu Water "Works Company, C A. & 
 E. 355. 
 
 (c) Tookcr V. Duke of Beaufort, Saycr, 
 297. 
 
 (/) Upon this issue the record in cer- 
 tain cases can he proved in the mode 
 pointed out hy the 14 & 15 Vict. c. 99, 
 s. 13, infra. 
 
 ig) Ileid i\ Mar^ison, 1 Campb. 469. 
 It is not necessary ibr the persons examin- 
 ing to exchanjic papers, and read them 
 alternatel}\ Gyles r. Ilill, ibid. n. As 
 to the examination of the whole of the 
 
 In other cases- 
 
 Where neces- 
 sary to prove 
 conviction or 
 acquittAl of 
 any i)erson, tho 
 record may 
 he ocrtitied 
 uniler hand of 
 clerk of court. 
 
 ndes of a benefit society enrolled at tho 
 oliice of the clerk of the peace, see Keg. 
 V. Hoynes, 1 ('. & K. 65, nnU, p. 94. 
 
 (h) Adamthwaitc r. Synge, 1 Stark. 
 183. 4 Camj.b. 372. S. C. 
 
 ((■) Rose. Kv. 75. Hurnand r. Nerot, 
 1 C. & 1'. 578. 
 
 0) Bull. N. P. 234. But the Hw;/ru« 
 record, with the postca indoi"sed, is suHi- 
 cient evidence that the cause came on to 
 be trie<l. I'itton r. "Walter, 1 Str. 162. 
 
 (/.) K.g. r. Meek, 9 C. & P. 513, 
 "Williams, J., unk, p. 21. 
 
 {D Kichiudson r. Wilks, 42 L. J. Kx. 
 15. L. !• 8 l-.\. C9.
 
 41G 
 
 Proof of jircvi- 
 ous conviction. 
 
 Of Written Evidence. 
 
 [nooK 
 
 vr. 
 
 Copies of re- 
 cords in the 
 Record Office. 
 
 is a cony <»f ilio record of llio indictnicnt, trial, conviction, and 
 judt^Mnrnt or ac(iiiittal, as tlic case may l)e, omittiji<^ tiie f'oimal 
 parts thereof.' And see the 14 *& 15 Vict. c. 100, s. 22. (m) 
 
 By .'^4 & 85 Vict. c. 112, «. 18, 'a previous conviction may be 
 proved in any legal proceeding whatever against any person by 
 producing a record or extract of" such conviction, and by giving 
 pioof ot" the identity of the person against whom the conviction is 
 sought to be proved with the person appearing in the record or 
 extract of conviction to have been convicted. A record or extract 
 of a conviction shall in the case of an indictable offence consist 
 of a certificate containing the substance and effect only (omitting 
 the formal part of the indictment and conviction), and purporting 
 to be signed by the clerk of the Court or other officer having the 
 custody of the records of the Court by whicb such conviction was 
 made, or purporting to be signed by the deputy of such clerk or 
 officer ; and in the case of a summary conviction shall consist of a 
 copy of such conviction purporting to be signed by any justice of 
 the peace having jurisdiction over the offence in respect of which 
 such conviction was made, or to be signed by the proper officer of 
 the Court by which such conviction was made, or by the clerk or 
 other officer of any court to which sucli conviction has been re- 
 turned. A record or extract of any conviction made in pursuance 
 of this section shall be admissible in evidence without proof of the 
 sif'nature or official character of the person appearing to have 
 signed the same. A previous conviction in any one part of the 
 United Kingdom may be proved against a prisoner in any other 
 part of the United Kingdom, and a conviction before the passing 
 of this Act shall be admissible in the same manner as if it had 
 taken place after the passing thereof A fee not exceeding five 
 shillings may be charged for a record of a conviction given in 
 pursuance of this section. The mode of proving a previous con- 
 viction authorized by this section shall be in addition to and not 
 in exclusion of any other authorized mode of proving such con- 
 viction.' 
 
 The several statutes which afford facilities for proving a previous 
 conviction by means of a certificate of the clerk of assize, or 
 clerk of the peace, are made for the more easy proof of such con- 
 victions, and do not prevent the proof of the previous conviction by 
 an examined copy of the record. (>•) 
 
 By the 1 & 2 Vict. c. 94, ss. 12, 13, every copy of a record in the 
 custody of the master of the rolls certified as a true and authentic 
 copy by the deputy keeper of the records, or one of the assistant 
 record keepers, and purporting to be sealed or stamped with the 
 seal of the record office, shall be received as evidence in all courts 
 of justice, and before all legal tribunals, and before either House of 
 Parliament, or any committee of either House, without any further 
 
 {m) Ante, p. 36, and see anfc, p- 413. 
 
 {r) Kcx r. Henry S.iundei-s, Gloucester 
 Spr. Ass. 1829, MSS. C. S. G. The pri- 
 soner vras indicted under the 15 Geo. 2, 
 c. 28, s. 2, for uttering base coin after a 
 previous conviction, and Parke, J. , held 
 that an examined copy of the record of 
 the previous conviction was sufficient 
 
 evidence thereof; for the statute, hy 
 giving an easier means of proof under 
 sec. 1', did not exclude the proof hy means 
 of an examined copy. See also Reg. r. 
 Carter, 1 Den. C. C. 65. Northam r. 
 Latouche, 4 C. & P. 140. Edwards r. 
 P>uchanan, 3 B. & Ad. 788, Keg. r. 
 Manwaring, D. & B. 132.
 
 CHAP. III. § I.] Public Documents. 
 
 or other proof thereof, in every case in which the original record 
 could have been received there in evidence. 
 
 Records properly produced in evidence are conclusive against 
 those who are parties to them : — thus a record of conviction of a 
 parish for not repairing a road, is for ever afterwards evidence of 
 their liability to repair ; {n) but it not conclusive as against other 
 parties, except as to the fact that the persons charged have been 
 convicted ; (o) therefore an accessory may controvert the guilt of 
 his principal, notwithstanding the record of his conviction, {p) and 
 it seems that the record of the conviction of the principal is not 
 admissible against the accessory in any case, {q) 
 
 A writ may in general be proved by the production of 
 it. But when it is treated as matter of record in the plead- 
 ing it must be proved by a copy of the record after the writ 
 has been returned, (s) An answer in chancery is proved by 
 the production of the bill and answer, or of examined copies of 
 them ; (t) but on proof by the proper officer that the bill has 
 been searched for in the office, and not found, the answer may 
 be read without the bill, (it) Depositions in a suit in chancery 
 are not in general admissible without proof of the bill and 
 answer, (v) The 12 & 13 Vict. c. 109, s. 11, enacts that a seal 
 shall be provided for the High Court of Chancery, to be called the 
 Chancery Common Law Seal, and that ' all courts, tribunals, 
 judges, justices, officers, and other persons shall take notice of the 
 said seal, and receive impressions thereof in evidence, in like 
 manner as impressions of the Great Seal are received in evidence, 
 and shall also take notice of and receive in evidence, without further 
 proof, all and every of such writs, proceedings, instruments, docu- 
 ments, and writings which shall purport or appear to be sealed or 
 stamped with the said Chancery Common Law Seal, in like manner 
 as if the same had been sealed with the Great Seal.' And by 
 sec. 13, every office copy issued from the Petty Bag Office shall be 
 sealed with the said Common Law Seal, and every document sealed 
 with such seal, and purporting to be a copy of any record or other 
 document of any description, shall be deemed to be a true copy of 
 such record or other document, and shall, without further proof, be 
 received in evidence before either House of Parliament, and any 
 committee thereof, and also by all courts, tribunals, judges, justices, 
 officers, and other persons, in like manner and to the same extent 
 
 (s) Bull. Ni. Tri. 234. 
 
 (I) 2 riiill. Ev. 130. The recital in 
 tlic jurat of the jilace where the iin.swer 
 ])uriiorts to be sworn, is sullieient proof 
 that the oath was administered at that 
 place, lie.x v. Spencer, K. & M. N. 1'. C. 
 97. 
 
 (a) Gill). Ev. 49. Sec as to the proof 
 of the id.utity of the i>artie.s, jwst, p. 434. 
 An answer otfered in cvitlence merely a.s 
 an admission of the party on oath, is 
 suflieiently proved hy an examined copy, 
 without ]iroof of a di'cree, or the jMirty's 
 handwriting'. Lady l)artmi>\itii i\ Ko- 
 bort-s, IG Kast, 334. See also Ewi-r v. 
 Ambrose, 4 H. & C. 25. 
 
 (r) Ibill. N. P. '24n. r.ilb. Ev. 62. 
 Rose. Ev. 79. 2rbill. Ev. 149. 
 
 417 
 
 Effect of re- 
 cords in evi- 
 dence. 
 
 Proof of a wTit. 
 
 Proceedings in 
 chancery. 
 
 Documents 
 sealed with 
 tlie Ch.ancery 
 Common Law 
 Seal. 
 
 (n) Rex V. St. Pancras, Peake, N. P. C. 
 219 ; see 2 Saund. 160, vol. 1, p. 
 501. 
 
 (o) See Rex v. Shaw, R. & B. 526, 
 where upon an indictment for delivering 
 instruments to a pri.soner to facilitate his 
 escape from gaol, it wiis held that the 
 record of his conviction being i)rodueed 
 by the proper oliicer, no evidence was 
 admissible to disjjute what it stated. 
 
 (p) Rex V. Smith, 1 Leach, 288. 
 
 Iq) Rex V. Turner, R. & M. C. C. \i. 
 347, vol. 1, p. 184. In K cable v. Paine, 
 8 A. & E. 555, Patteson, J., said, 
 'On an indictment for rec<'iving goods 
 feloniously taken, the felony must be 
 proved, and neither a judgment against 
 the felon, nor his admission, would be 
 evidence against the receiver.'
 
 418 
 
 ProccotHngR 
 in tho ecclesi- 
 astical court!'. 
 
 Divorce Court. 
 
 Of Written Evidence. 
 
 [book 
 
 VI. 
 
 Proof of a will. 
 
 Proof of ad- 
 miaistration. 
 
 Judgments 
 of inferior 
 courts. 
 
 as the original record or other document would 1)C received if 
 tendered in evidence for the purpose of proving the contents of 
 such record or other document, {w) The proceeding.s in the eccle- 
 siastical cf)urts are proved in the same way at common law as those 
 in e(]uity ; and their sentences are received in the temporal courts 
 as conclusive evidence of the fact adjudged, upon ({uestions witliin 
 their jurisdiction ; but in a suit of jactitation of marriage a sentence 
 against the marriage is not conclusive, as it decides not directly, 
 but only collaterally, on the validity of the marriage, {x) By '10 
 & 21 Vict. c. 85, a court of record, called the Court for Divorce and 
 Matrimonial Causes, was established. By sec. 13 of this Act the 
 Lord Chancellor shall direct a seal to be made for the said court, 
 and may direct the same to be broken, altered, and renewed at his 
 discretion ; and all decrees and orders, or copies of decrees or 
 orders, of the said court, sealed with the said seal, shall be received 
 in evidence. 
 
 When it is necessary to show a title to personality under a will, 
 or that a particular person is executor, the will cannot be read in 
 evidence, but the probate must be produced, {y) The seal of the 
 ecclesiastical court on the probate proves itself, {z) Generally 
 speaking, a probate unrepealed is conclusive evidence of the valid- 
 ity of the will ; but on an indictment for forging a will, probate of 
 that will unrepealed is not conclusive evidence of its validity, so 
 as to be a bar to the prosecution, (a) To prove a probate revoked, 
 an entry of the revocation in the book of the ecclesiastical court, 
 called the * assignation book,' in Avhich all causes were officially 
 entered, is good evidence. (6) Administration granted before the 
 Probate Act, 20 & 21 Vict. c. 77, is proved by the production of the 
 letters of administration, or a certificate or exemplification thereof, 
 granted by the ecclesiastical court, (c) or by the original book of 
 Acts, directing the grant of letters, or an examined copy of it. {d) 
 By the 20 & 21 Vict. c. 77, the Court of Probate was established. 
 By sec. 22 of that Act the judge shall cause to be made seals for 
 the Court of Probate, that is to say, one seal to be used in its prin- 
 cipal registry, and separate seals to be used in the several district 
 registries, and may cause the same respectively from time to time 
 to be broken, altered, and renewed at his discretion ; and all pro- 
 bates, letters of administration, orders, and other instruments, and 
 exemplifications and copies thereof respectively, purporting to be 
 sealed with an}' seal of the Court of Probate, shall in all parts of the 
 United Kingdom bereceivedin evidence without further proof thereof. 
 
 Judgments in a court-baron, or other inferior court, may be 
 proved by the production of the book containing the proceedings of 
 the court from the proper custod}'^, and if not made up in form, the 
 minutes of the proceedings will be evidence, or an examined copy 
 of such proceedings or minutes will be evidence, (e) But this rule 
 
 («•) See sees. 17, 18, and 19, as to the 
 seal for the curolment ofRce, the certifi- 
 cates of enrolment, and scaled copies of 
 enrolments being evidence. 
 
 {x) Duchess of Kingston's case, 11 St. 
 Tr. 263. A nte, p. 267. 
 
 iy) Rex r. Barnes, 1 Stark. N. P. C. 
 243. 
 
 {z) Kempton v. Cross. Cas. Temp. 
 Hardw. 108. 20 & 21 Vict. c. 77, 
 
 s. 22, infra. 
 
 (a) Rex V. Bnttery, K. *; R. 342. 
 
 (6) Rex r. Ramstxittom, 1 Leach, 25, 
 in note to Rhodes's case. 
 
 (f) Kempton r. Cross, Cas. Temp. 
 Hanhv. 108. 
 
 {d) Elden r. Keddel, 8 East, 187. 
 Davis r. Williams, 13 East, 232. 
 
 (f) Rex r. Hains, per Holt, Comb. 337. 
 12 Vin. Ab. Ev. A. b. 26, p. 99. Rose.
 
 CHAP. III. § I.] Public Documents. 419 
 
 does not extend to proceedings of the Court of Quarter Sessions on 
 the Crown side, which is a court of record. (/) By the County Courts 
 Act, 9 (fe 10 Vict. c. 95, s. Ill, it is enacted, that the clerk of 
 every court holden under this Act shall cause a note of all plaints 
 and summonses, and of all orders, and of all judgments and execu- 
 tions, and returns thereto, and of all fines, and of all other proceed- 
 ings of the court, to be fairly entered from time to time in a book 
 belonging to the court, which shall be kept at the office of the court ; 
 and such entries in the said book, or a copy thereof bearing the seal 
 of the court, and purporting to be signed and certified as a true 
 copy by the clerk of the court, shall at all times be admitted in all 
 courts and places whatsoever as evidence of such entries and of the 
 proceeding referred to by such entry or entries, and of the regu- 
 larity of such proceeding, without any further proof {g) 
 
 The judgment of a foreign court was formerly generally proved ?'o^eign 
 by proving the authenticity of the seal affixed to the judgment. 3*^ Sdi ^ . 
 In the case of Henry v. Adey, where the plaintiff, who sued here 
 on a judgment obtained in the Island of Grenada, was nonsuited, 
 because he could not prove the seal affixed to be the seal of the 
 island, the court said, they could not take official notice that the 
 seal affixed was the seal of the island, which was necessary to be 
 shown in order to prove the judgment, which it purported to 
 authenticate ; and that proving the judge's handwriting could not 
 advance the proof of the seal, unless by considering him in the 
 nature of a witness to it, which was not pretended. (Ji) If a 
 colonial court possess a seal, it ought to be used for the purpose of 
 authenticating its judgments, (i) If it is clearly proved that the 
 court has not any seal, so that the document cannot be clothed 
 with the form of a legal exemplification, it must be shown to 
 possess some other requisite to entitle it to credit ; as by proving 
 the signature of the judge upon the judgment, {j) An exemplifi- 
 cation of a foreign judgment, that is, a copy authenticated under 
 the seal of the court, is evidence of the judgment in the courts of 
 this country : {k) but a document, purporting to be a copy of a 
 judgment made by the officer of the court, is not admissible. (I) 
 
 Ev. 80. As to its being necessary in duced the warrant under which he had 
 
 proving the judgment of such a court to acted, which oonchidcd ' given under the 
 
 give evidence of the proceedings pi'evious seal of my oflice,' and there was a small 
 
 to the judgment, see Com. Dig. Ev. piece of paper wafered to it, and stamped 
 
 C. 1. with a wafer st^mp ; and the olficcr 
 
 (/) R. V. Smith, 8 B. & C. 341. jiroved that he did not know this to be 
 
 \g) See Dews v. Kyley, 20 L. J. C. P. the seal of the shorilf or of his otliccr, but 
 
 264. R. V. Rowland, 1 F. & F. 72. he had received the warrant from the 
 
 (h) 3 East, 221. 2 Phill. Ev. 143. person who liad acted a.s under-sheritf, 
 
 See also Buchanan v. liuckcr, 1 Campl). and it was precisely similar to all the 
 
 63. Flindt V. Atkins, 3 Campb. 21.'), in other warrants under which he had acted ; 
 
 a note. The 6 Geo. 4, c. 133, s. 7, enact- Parke, B., held that thi.s was sulVicieut 
 
 ing that the common seal of the society proof of the seal. Bunbury r. Matthews, 
 
 of apothecaries of the city of London 1 (.'. & K. 380. 
 
 shall be received as sulHcient jtroof of the (i) (.'avan v. Stewart, 1 Stark. N. P. C. 
 
 authenticity of the certilicate, to whidi 525. 
 
 such seal is aihxed, did not make .such (;) Alves t'. Bunborj', 4 Campb. 28. 
 
 certificate evidence without ])roof that 2 Phill. Ev. 143. 
 
 the seal affixed is the genuine seal of the (/) Black i-. I^rd Braybrook, 2 Stark, 
 
 society. Chadwick ?-. Bunning, R. & M. N. P. C. 11, 12. 
 
 N. P. C. 306. But the 14 & 1.^ Vict. 0. (/) Appleton v. Lord Braybrook, 2 
 
 99, s. 8, makes the proof of the seal or of Stark. N. P. C. 6, 7. M. & S. 34. 2 
 
 the authenticity of the certificate unne- Phill. Ev. 143. 
 cessary. Where a sherift's officer pro-
 
 420 
 
 Foreign and 
 coloniiil Acts 
 of Stiito, 
 judgiiients, 
 &,c., jiroviililo 
 l)y ccrlilied 
 coi)ieH, with- 
 out jiroof of 
 seal or signa- 
 ture, or judi- 
 cial character 
 of pei-son 
 signing tiio 
 
 BAUIO. 
 
 Of WHtten Evidence. 
 
 [book VI. 
 
 I}iit, now by the 14 & 15 Vict, c. 99, h. 7, 'all proclamations, 
 trciilies, and other Acts of State of any foreign state or of any 
 Hiitisli colony, and all judj^Mnents, decrees, orders, and other 
 ju(lici;il ])ro('cudings of any court of justice in any fort;i;^Mi states or 
 in any Ihitish colony, and all afhdavits, pleadings, and other legal 
 documents filed or deposited in any such court, may be proved in 
 any court of justice, or before any person having by law or by 
 consent of parties authority to hear, receive, and examine evi- 
 dence, either by examined copies or by copies authenticated as 
 hereinafter mentioned ; that is to say, if the document sought to 
 be proved be a proclamation, treaty, or other Act of State, the 
 authenticated copy to be admissible in evidence must purport to 
 be sealed with the seal of the foreign state or British colony to 
 which the original document belongs ; and if the document sought 
 to be proved be a judgment, decree, order, or other judicial pro- 
 ceeding of any foreign or colonial court, or an affidavit, pleading, 
 or other legal document filed or deposited in any such court, the 
 authenticated copy to be admissible in evidence must purport 
 either to be scaled with the seal of the foreign or colonial court to 
 which the original document belongs, or, in the event of such 
 court having no seal, to be signed by the judge, or, if there be 
 more than one judge, by any one of the judges of the said court, 
 and such judge shall attach to his signature a statement in writing 
 on the said copy that the court whereof he is a judge has no seal ; 
 but if any of the aforesaid authenticated copies shall pui^port to be 
 sealed or signed as hereinbefore respectively directed, the same 
 shall respectively be admitted in evidence in every case in which 
 the original document could have been received in evidence, 
 without any proof of the seal where a seal is necessary, or of the 
 signature, or of the truth of the statement attached thereto, where 
 such signature and statement are necessary, or of the judicial 
 character of the person appearing to have made such signature 
 and statement.' 
 
 By 28 & 29 Vict. c. 63, entitled ' An Act to remove doubts as to 
 the Validity of Colonial Laws,' s. 6, ' the certificate of the clerk or 
 other proper officer of a legislative body in any colony, (w) to the 
 effect that the document to which it is attached is a true copy of 
 any colonial law assented to by the governor of such colony, or of 
 any bill reserved for the signification of her Majesty's pleasure, by 
 
 (7h) By sec. 1 the term " colony " shall 
 in this Act include all of Her Majesty's 
 possessions abroad in which there shall 
 exist a legislature, as hereinafter detined, 
 except the Channel Islands, the Isle of 
 JIan, and snch territories as may for the 
 time being be vested in Her Majesty, 
 under or by virtue of any Act of Parlia- 
 ment for the government of India. 
 The terms " Legislature " and " Colonial 
 Legislature " shall severally signify the 
 authority, other than the Imperial Par- 
 liament or Her Majesty in Council, 
 competent to make laws for any colony. 
 
 The term "Representative Legisla- 
 ture " shall signify any colonial legisla- 
 ture which shall comprise a legislative 
 body, of wliich one half are elected by 
 
 inhabitants of the colony. 
 
 The term "Colonial Law " shall include 
 laws made for any colony either by snch 
 legislatiire as aforesaid, or by Her Ma- 
 jesty in Council : 
 
 An Act of Parliament, or any provi- 
 sion thereof, shall, in construing this 
 Act, be said to extend to any colony when 
 it is made applicable to snch colony by 
 the exjiress words or necessary intend- 
 ment of any Act of Parliament. 
 
 The term " Governor " shall mean the 
 officer lawfully administering the govern- 
 ment of iinj' colon}'. 
 
 The term "Letters Patent " shall mean 
 letters patent under the Great Seal of the 
 United Kingdom of Great Britain and 
 Ireland.
 
 CHAP. III. § I.] Public Documents. 421 
 
 the said governor, shall be 'prima facie evidence that the document 
 so certified is a true copy of such law or bill, and, as the case may 
 be, that such law has been duly and properly passed and assented 
 to, or that such bill has been duly and properly passed and pre- 
 sented to the governor ; and any proclamation purporting to be 
 published by authority of the governor in any newspaper in the 
 colony to which such law or bill shall relate, and signifying her 
 Majesty's disallowance of any such colonial law, or her Majesty's 
 assent to any such reserved bill as aforesaid, shall be prirnd facie 
 evidence of such disallowance or assent. 
 
 The law of a foreign state must bo proved, (n) Where, to prove Proof of 
 the law of France as to marriage, the French vice-consul produced foreign laws. 
 a book, which he said contained the code of laws upon which he 
 acted at his office ; that it was printed at the office for the printing 
 of the laws of France ; and that it would have been acted ui^on in 
 any of the French courts ; it was ruled by Abbott, C. J., to be 
 sufficient proof of the law. (o) The law of a foreign state mav 
 be proved by the parol evidence of witnesses possessing profes- 
 sional skill. (2^) And the proper course to prove the law of a 
 foreign country is to call a witness expert in it, and to ask him, 
 on his responsibilit}', what that law is, and not to read any frag- 
 ments of a code, (q) So a person of experience in the profession 
 of the law of another country may state his opinion what, accord- 
 ing to the law of that country, would be the legal effect of the 
 facts previously spoken to by the witnesses, taking the facts to be 
 accurate. Thus a gentleman at the Scotch bar has been allowed 
 to state his opinion, whether a marriage, as proved by the wit- 
 nesses, would be valid according to the Scotch law. (r) And 
 ■where, on an indictment for bigamy, it was proved that the Dent's case, 
 prisoner had been married to a soldier of the name of Dent, and 
 afterwards to one Wall, and the defence was that Dent had been 
 legally married in Scotland, previous to his marriage with the 
 prisoner, and a witness proved that Dent being with his regiment 
 in Scotland, the witness, Dent, a female, and several others, went 
 to a house, to which they were directed after in(|uiring for the 
 house of the clergyman of the place, where a gentleman performed 
 a ceremony somewhat similar to the marriage service of the 
 Church of England, between Dent and the female, and that they 
 afterwards lived together as man and wife ; Wightman, J., held 
 that a gentleman, who had lived in Scotland until he was twenty, 
 and who had frequently been there since, and who was possessed 
 of very considerable literary attainments, and stated that ho wa.s 
 well acquainted with tlie law of marriage in Scotland, although he 
 was not a lawyer, was competent to prove that the niarriagi' in 
 question was a valid marriage according to that law. (s) But this 
 case was expressly overruled in the Sussex Veeracje case, {t) wliero Suawx 
 it was held that the person, who proves a foreign law, must be Pecmgc cisc. 
 
 («,) Clegg V. Levy, 3 Campb. 16C. CI. & F. 85, infra. 
 
 Kosc. Ev. 82, Baron do Bode's case, (r) Kox v. Wakefield, Murray's cd., 
 
 post, p. 422. p. 238. 
 
 (o) Lacoii V. Higgins, 3 Stark. 178. (*) Keg. r. Dent, Monmouth Spring 
 
 (p) I'er Gibbs, C. J., MUler v. Ken- Ass. 1843, MSS. C. S. G. 1 C. & K. 
 
 rick, 4 Campb. 155. 97. 
 
 {q) Cocks V. Purday, 2 C. & K. 209, (<) 11 CI. k F. 85. See 11. v. Savage, 
 
 Erie, J. The Sussex Peerage case, 11 13 Cox, C. C. 178.
 
 422 
 
 Baron do 
 Bode's coso. 
 
 (}j' Written Evidence. 
 
 [book vt. 
 
 The kno'vr- 
 ledge must be 
 acquired by- 
 practice. 
 
 pcrltus inrtnfe officii vel profcfimonis ; and that tliou^fli the witness 
 may refresh his memory, or correct or coiilirm his opinion, by 
 toreifijn hiw books, yet the law itself must be taken from his 
 evidence, (u) Where, therefore, evidence having been given to 
 show the state of the law of inheritance in Al.sace at a particular 
 time, a witness was called, who stated himself to be a French ad- 
 vocate practising at Strasbourg, in the department of Bas Rhin, 
 and that the feudal law had been put an end to in Alsace by the 
 torrent of the French revolution de facto in 1789, and by the 
 tr<,'aty of Luneville de jure ; and upon being asked whether there 
 was not a decree to that etfect, he added that there was such a 
 decree of the 4th of August, 1789, of the national assembly, and 
 that he had learned this in the course of his legal studies, it being 
 part of the history of the law which he learned while studying 
 the law ; it was objected that this evidence could not be received, 
 unless the decree itself were proved and put in ; but the majority 
 of the Court of Queen's Bench held that it might ; for the 
 opinions of persons of science must be received as to the facts of 
 their science. That rule applies to the evidence of legal men, 
 and is not confined to unwritten law, but extends also to the 
 written laws Avhich such men are bound to know. Properly 
 speaking, the nature of such evidence is, not to set forth the con- 
 tents of the written law, but its effect and the state of law re- 
 sulting from it. If an English court were to attempt to expound 
 the written law of a foreign countr}^ it would be liable to the 
 most serious errors. The question is not what the language of 
 the written law is, but what the law is altogether, as shown by 
 exposition, interpretation, and adjudication, (v) 
 
 Where a witness was a German jurisconsult, and had studied 
 the German law at the University of Leipsic in Saxony, but 
 had not transacted business at Cologne, and had no knowledge of 
 the laws of Cologne but from books ; Alderson, B., held that he 
 could not give evidence of the law of Cologne, as he had not had 
 any practice at Cologne, (vj) But where a native of Belgium 
 stated that he had formerly carried on the business of a merchant 
 and commissioner in stocks and bills of exchange at Brussels, but 
 was now an hotel keeper in London, and that he was well 
 acquainted with the Belgian law upon the subject of bills and 
 notes ; it was held that he was competent to prove that by the law 
 of Belgium it is not necessary, even though a bill or note is made 
 payable at a particular place, that it should be presented there for 
 pajanent ; for inasmuch as he had been carrying on a business 
 which made it his interest to take cognizance of the foreign law, 
 he fell within the description of an expert, (x) 
 
 (if) In this case it was held that a Ro- 
 man Catholic Bishop, holding the office 
 of coadjutor to a vicar apostolic in this 
 country, was, in virtue of that office, to 
 be considered as a person skilled in the 
 matrimonial law of Rome, and therefore 
 competent to prove that law. 
 
 (r) Baron de Bode's case, 8 Q. B. 208, 
 246. Patteson, J., dissetiticnte. 
 
 (w) Bristow V. De Secqueville, 3 C. & 
 Iv 64 ; and this ruling was held correct 
 
 by the full court. 5 Exch. E. 275. In 
 the goods of Bonelli, 45 L. J. Prob. 42. 
 
 (.v) Yander Donckt v. Thellusson, 8 
 C. B. 812. The competency of a witness 
 to prove foreign law is a question for the 
 court, and it seems, as a general rule, 
 that in order to render a person compe- 
 tent he should have some peculiar means 
 from his profession or business, of 
 becoming acquainted with the law, with 
 respect to which he is called on to speak.
 
 CHAP. III. 
 
 ■•] 
 
 Public Documents. 
 
 A judgment obtained in one of the superior courts in Ireland, 
 since the Union, is not a record in England, {y) But now by the 
 14 & 15 Vict. c. 99, s. 9, 'every document which by any law 
 now in force or hereafter to be in force is or shall be admissible in 
 evidence of any particular in any court of justice in England or 
 Wales without proof of the seal or stamp or signature authen- 
 ticating the same, or of the judicial or official character of the 
 person appearing to have signed the same, shall bo admitted in 
 evidence to the same extent and for the same purposes in any 
 court of justice in Ireland, or before any person having in Ireland 
 by law or by consent of parties authority to hear, receive, and 
 examine evidence, without proof of the seal or stamp or signature 
 authenticating the same, or of the judicial or official character of 
 the person appearing to have signed the same.' 
 
 Sec. 10. ' Every document which by any law now in force or 
 hereafter to be in force is or shall be admissible in evidence of any 
 particular in any court of justice in Ireland, without proof of the 
 seal or stamp or signature authenticating the same, or of the 
 judicial or official character of the person appearing to have 
 signed the same, shall be admitted in evidence to the same extent 
 and for the same purposes in any court of justice in England 
 or Wales, or before any person having in England or Wales 
 by law or by consent of parties authority to hear, receive, and 
 examine evidence, without proof of the seal or stamp or signature 
 authenticating the same, or of the judicial or official character of 
 the person appearing to have signed the same.' (0) 
 
 By the 22 & 23 Vict. c. 63, in any judicial proceeding insti- 
 tuted in any court, civil, criminal, or ecclesiastical, within Her 
 Majesty's dominions, if the court deem it necessary for the proper 
 disposal of such proceeding to ascertain the law applicable to the 
 facts of the case as administered in any other part of Her Majesty's 
 dominions, the court in which the proceeding is pending may 
 direct a case to be prepared setting forth the facts, as these may 
 be ascertained by verdict of a jury or other mode competent, &c., 
 and the court shall settle the question of law arising out of the 
 same, and remit the case to the superior court, whose opinion is 
 desired in such other part of Her Majesty's dominions. The Act 
 then prescribes the mode of obtaining the opinion of the court, 
 and of remitting it to the court by which the opinion was required, 
 which court is thereupon to apply such opinion to such facts in the 
 same manner as if the same had been pronounced by such court 
 itself upon a case reserved, or upon a spcciaJ verdict ; or the court 
 may, if the opinion has been obtained before the trial, order it to 
 be submitted to the jury with the other facts of the case as evi- 
 dence, or conclusive evidence, of the foreign law therein stated. 
 
 The 24 & 25 Vict. c. 11, contains similar provisions for the 
 purpose of enabling any superior court in Her Majesty's dominions 
 to obtain the opinion of any court of any foreign state, with which 
 Her Majesty may have made a convention for that purpose, as to 
 the law of such state. 
 
 423 
 
 Irish 
 judgment. 
 
 Documenis 
 admissible 
 without proof 
 of seal, &c., in 
 England or 
 Wales 
 equally ad- 
 missible in 
 Ireland. 
 
 Documents 
 admissible 
 without proof 
 of seal, &c., 
 in Ireland 
 equally admis- 
 sible in 
 England or 
 Wales. 
 
 Mode of ascer- 
 taining the 
 law in dif- 
 ferent parts of 
 the Queen's 
 dominions. 
 
 In fort.'ign 
 countricii. 
 
 Vanderdoncht i'. Thclluson, 8 C. B. 812, 
 Cresswell, J. See Hog. v. Povey, 6 Cox, 
 C. C. 83. 
 
 {y) Harris v. Saunders, 4 B. & C. 411. 
 
 {z) By SCO. 11, documents admissible 
 without proof of seal, &c., in Knj^land, 
 Wales, or Ireland, are c<iually admissible 
 ill the colonies.
 
 424 
 
 Convictions 
 hfforo juMticcs 
 
 of tllO IJL'ftCC. 
 
 Of Written Evidence. 
 
 [book VI. 
 
 Public books. 
 
 Registers of 
 births, deaths, 
 and marriages. 
 
 Convictions bofor(! jusl/icos of tlio pcaco arc oitlior produced in 
 court, and tlic liandwritin!^ of tlio nia;,Mstratc'S to tli<;in proved, f'^/) 
 or they may lie proved by exaniincd copies, whicli the clerk of 
 the ])eacc of tiie ])roper county will make out, upon an application 
 for that purpose, {h) or they may be proved in certain cases by 
 copies or certificates under the provisions of sundry statutes, (c) 
 But a conviction cannot be proved l)y the notes in tlie minute 
 book of the justices before whom it took place, or by oral evi- 
 dence, {(l) In many instances, public books are admitted in 
 evidence to prove the facts recorded in them. The mustor-book 
 in the navy office has been admitted in evidence to prove the 
 death of a sailor ; (e) the book from the master's office in the 
 Court of King's Bench, to prove a person one of the attorneys of 
 that court ; (/) and the log-book of a man-of-war, which convoyed 
 a fleet, to prove the time of the convoy's sailing, {g) Bank-books 
 are good evidence to prove the transfer of stock ; (h) and on a 
 prosecution for a libel published concerning a person in his office 
 of treasurer of a parish, an entry in a vestry-book, stating that he 
 was elected at a vestry duly held in pursuance of notice, has been 
 considered sufficient evidence to support an allegation in the 
 indictment that he was duly elected treasurer, {i) The day-book 
 of a public prison, containing a narrative of the transactions of 
 the prison, has been received upon the same principle, as proof of 
 the time of a prisoner's commitment or discharge ; {]) but it 
 would not be admissible to prove the cause of his commitment. (Jc) 
 So on an indictment for forging a seaman's will, an entry in a 
 book called the assignation-book, in which all causes are officially 
 entered, was admitted to prove the probate revoked, (l) The 
 registers of christenings, marriages, and burials, preserved in 
 churches, are good evidence ; (m) and in order to prove the register 
 of a marriage, it is not necessary to call the attesting witnesses ; 
 but as the register affords no proof of the identity of the parties, 
 some evidence of that fact must be given, as by calling the min- 
 ister, clerk, or attesting witnesses, if they were acquainted with the 
 parties ; or the bell-ringers may be called to prove that they rung 
 the bells, and came immediately after the marriage,, and were paid 
 by the parties ; or the handwriting of the parties may be proved, 
 even where the register is not produced ; (71) or persons may be 
 called who were present at the wedding dinner, &c. (0) Registers 
 
 {a) Massey v. Johnson, 12 East, 67. 
 Gray v, Cookson, 16 East, 13. JIason v. 
 Barker, Gloucester Spr. Ass. 1843, Er- 
 skinc, J. MSS. C. S. G. 
 
 {h) Arch. Cr. P. 213. 
 
 (c) See 24 & 25 Vict. c. 96, ss. 112, 
 116, 24 & 25 Vict. c. 97, s. 70, and the 
 24 & 25 Vict. c. 96, s. 110, and 24 & 25 
 Vict. c. 97, s. 68, provide that, when any 
 conviction is quashed on appeal, a memo- 
 randum thereof is to be made on the con- 
 viction, and a copy thereof is to be adtled 
 to any copy or certificate of the convic- 
 tion, and is to be sufficient ev'ideuce that 
 the conviction has been (juashed. 
 
 (<0 Giles V. Siney, 11 Law T. 310. 
 
 (c) Bull. N. P. 249. Khodes's case, 
 1 Leach, 24. 
 
 (/) Eex V. Cropley, 2 Esp. N. P. C. 
 524. 
 
 ((/) D'Israeli v. Jowett, 1 Esp. N. P. C. 
 427. 
 
 (7i) Breton v. Cope, Peake, N. P. C. 
 30. Marsh V. Colnet, 2 Esp. N. P. C. 
 665. 
 
 { i ) Eex V. Martin, 2 Camph. 100. 
 
 (i) Eex V. Aickles, 1 Leach, 391. 
 
 {k) Salte f. Thomas, 3 B. & P. 188. 2 
 Phill. Ev. 164. 
 
 (0 Eamsbottom's case, 1 Leach, 25, in 
 note. It would have been no bar to the 
 conviction had the probate been unre- 
 pealed. Eex V. Buttery, E. & E. 342. 
 
 {m) Bull. N. P. 247. 
 
 («) Sayer v. Glossop, 2 Exch. E. 409. 
 
 (o) Biit r. Barlow, Dougl. 171. As to
 
 CHAP. III. § I.] Public Documents, 42.^ 
 
 are, however, in the nature of records, and need not be produced 
 or proved by subscribing witnesses, (p) They, therefore, may be 
 proved either by an examined copy or by a copy certified under the 
 14 & 15 Vict. c. 99, s. 14. {q) 
 
 The 6 & 7 WilL 4, c. 86, 'An Act for registering Births, 
 Deaths, and Marriages in England,' by sec. 38 enacts that ' all 
 certified copies of entries purporting to be sealed or stamped with 
 the seal of the said register office sliall be received as evidence of 
 the birth, death, or marriage to which the same relates, without 
 any further or other proof of such entry.' (r) 
 
 By 37 & 38 Vict. c. 88 (Births and Deaths Registration Act, 
 1874) s. 38, ' an entry, or certified copy of an entry, of a birth or 
 death in a register under the Births and Deaths Registration Acts, 
 1836 to 1874, or in a certified copy of such a register, shall not be 
 evidence of such birth or death, unless .such entry eitlier purports 
 to be signed by some person professing to be the informant, and 
 to be such a person as is required by law at the date of such entry, 
 to give to the registrar information concerning such birth or death, 
 or purports to be made upon a certificate from a coroner, or in pursu- 
 ance of the provisions of this Act with respect to the registration 
 of births and deaths at sea {rr) ; and Avhen more than three months 
 have intervened between the day of the birth and the day of the 
 registration of the birth of any child, the entry or certified copy of 
 the entry made after the commencement of this Act of the birth 
 of such child in a register under the Births and Deaths Registra- 
 tion Acts, 1836 to 1874, or in a certified copy of such a register, 
 shall not be evidence of such birth, unless such entry purports, 
 
 (a) If it appear that not more than twelve months have so 
 
 intervened, to be signed by the superintendent registrar, 
 
 as well as by the registrar, or 
 (6) If more than twelve months have so intervened, to have 
 
 been made with the authority of the Registrar General, 
 
 and in accordance with the prescribed rules.' 
 
 When more than twelve months have intervened between the 
 day of a death or the finding of a dead body and the day of the 
 registration of the death or the finding of such body, the entry or 
 certified copy of the entry made after the commencement of this 
 Act of the death in a register under the Births and Deaths Regis- 
 tration Acts, 183G to 1874, or in a certified copy of such register, 
 shall not be evidence of such death, unless such entry purports to 
 have been made with the authority of the Registrar-General, and 
 in accordance with the prescribed rules.' 
 
 By s. 49, where reference is made in this Act to a registrar or 
 superintendent registrar in connexion with any birtli or death or 
 other event, or any register, such reference shall (unless the con- 
 trary be expressed) be deemed to be made to the registrar who is 
 the registrar for the sub-district in which such birth or tk'ath or 
 
 mere similarity of names being evidence (r) The Marriage Act, 6 & 7 Will. 4, 
 
 of identity, see Hubbard v. Lees, L. 11. c. S."). s. 44, incoriioratcs that Act with 
 
 1 Ex. 255, 2}ost, p. 434, ante, p. 314. the (Ski Will. 4, c. 8(5. 
 
 {p) Per Lord Mansfield, Birtr. Barlow, {it) See .sec. 37 of this Act, in the 
 
 1 Dougl. \l. 171. Appendix of Statutes. 
 
 {q) Post, p. 427.
 
 4t2G 
 
 Of Written Evidence. 
 
 [book vt. 
 
 Non-parocliiiil 
 registers. 
 
 Proof of public 
 books by 
 examined 
 copies. 
 
 otlicr event took placo, or wlio keeps tlie ro^n.ster in whicli tlic 
 birth or de.'itli or utlier event i.s or i.s refjiiired io be re;^i.stereil, or 
 who keej),s tlie register referred to, and to the superintendent 
 registrar who .superintends such register as aforesaid. 
 
 J3y sec. 51, this Act, save as is herein otherwise expressly pro- 
 vided, shall extend oidy to P]ngland and Wales. 
 
 The .S & 4 Vict. c. !)2, which relates to registers or records of 
 births or baptisni.s, deaths or burials, and marriages lawfully 
 solemnized, kept in Engl;ind and Wales, other than the parochial 
 registers and the copies thereof deposited with the diocesan re- 
 gistrars, enacts that all registers and records deposited in the 
 general register office by virtue of that Act (except the registers 
 and records of baptisms and marriages at the Fleet and King's 
 Bench prisons, at May Fair, at the Mint in Southwark, and 
 elsewhere, which were deposited in the registry of the Bishop of 
 London in 1821), shall be deemed to be in legal custody, and shall 
 be receivable in evidence, subject to the provisions of that Act. 
 By sec. 17, 'in all criminal cases in which it shall be necessary to 
 use in evidence any entry or entries contained in any of the said 
 registers or records, such evidence shall be given by producing to 
 the Court the original register or record.' (s) 
 
 By 27 & 28 Vict. c. 97, after reciting that provision is made by 
 law in England for the registration of burials performed according 
 to the rites of the Established Church, and of all burials in grounds 
 provided under the Burials Act ; and that it is expedient that all 
 burials in England be registered :' it is enacted as follows : 
 
 1. All burials in any burial ground in England which are not 
 now by law required to be registered shall be registered in 
 register books to be provided for each such burial ground by the 
 company, body, or persons to whom the same belongs, and to be 
 kept for that purpose according to the laws in force by which 
 registers are required to be kept by rectors, vicars, or curates of 
 parishes or ecclesiastical districts in England. 
 
 2. Such register books shall be so kept for every such burial 
 ground by some officer or person to be appointed to that duty by 
 the company, body, or persons to whom such burial ground 
 belongs. 
 
 3. Copies of the register books kept under this Act for every 
 such burial ground shall be from time to time made, verified, and 
 signed by such officer or person as aforesaid, and sent by him to 
 the registrar of the diocese wherein the burial gi'ouud to which 
 the same relates is situate, to be kept with the copies of the 
 register books of the parishes within such diocese. 
 
 5. The register books kept under this Act, or copies thereof, or 
 extracts therefrom, shall be received in all courts as evidence of 
 the burials entered therein. 
 
 Whenever an original is of a public nature, and admissible in 
 evidence, an examined copy is also admissible, (f) Thus examined 
 copies of the entries in the council-book, or of a license preserved 
 in the secretary of state's office, (u) of entries in the bank-books, {v) 
 
 (s) In civil cases, sec. 9 makes ex- 
 tracts stamped with the seal of the office 
 admissible in evidence. The '21 & 2'2 Vict. 
 c. 25, extends the provisions of the 3 & 4 
 Vict c. 92, to other registers of a similar 
 
 description. See 37 & 38 Vict. c. 88 
 fifth schedule. 
 
 (t) Lynch v. Gierke, 3 Salk. 154. 
 
 (u) Evre r. Palsgrave, 2 Campb. 606. 
 
 {v) Marsh r. Colnett, 2 Esp. 665.
 
 CHAP. III. 
 
 §!•] 
 
 Public Documents. 
 
 427 
 
 of entries in the books of the East India Company, (w) or in the 
 books of the commissioners of the land tax, {x) or of excise, (y) are 
 allowed to be read in evidence. So an examined copy of a parish 
 register is evidence ; {z) but not an examined copy of the register 
 of a marriage in the Swedish ambassador's chapel in Paris, {a) It 
 seems, however, that the books of the Kino^'s Bench or Fleet 
 prisons, which, as it has been just mentioned, are evidence of the 
 time of a prisoner's discharge, are not such public documents that 
 a copy of them may be given in evidence. (6) 
 
 And now by the 14 & 15 Vict. c. 99, s. 14, ' whenever any 
 book or other document is of such a public nature as to be ad- 
 missible in evidence on its mere production from the proper 
 custody, and no statute exists which renders its contents provable 
 by means of a copy, any copy thereof or extract therefrom shall 
 be admissible in evidence in any court of justice, or before any 
 person now or hereafter having by law or by consent of parties 
 authority to hear, receive, and examine evidence, provided it be 
 proved to be an examined copy or extract, or provided it purport 
 to be signed and certified as a true copy or extract by the officer 
 to whose custody the original is intrusted, and Avhich officer is 
 hereby required to furnish such certified copy or extract to any 
 person applying at a reasonable time for the same, upon payment 
 of a reasonable sum for the same, not exceeding fourpence for 
 every folio of ninety words.' (c) 
 
 A copy of an entry in the register book of births in a registrar's 
 district within a superintendent registrar's larger district, certified 
 to be a true copy under the hand of the deputy superintendent 
 registrar, who also certified under his hand that the register book 
 was in his lawful custody, was held to be admissible evidence of 
 the entry in the register book upon the mere production of such 
 copy. (cZ) 
 
 The judicial records of the King's Courts are safely kept for 
 public convenience, that any subject may have access to them for 
 his necessary use and benefit ; which was the ancient law of 
 England, and is so declared by an Act of Parliament in the 40th 
 year of Edward III. (e) But in the case of an acquittal on a 
 prosecution for felony, a copy of the indictment cannot be re- 
 gularly obtained without an order from the Court. (/) This rule, it 
 
 {w) Dougl. 593, n. 
 
 (x) Rex r. King, 2 T. 11. 234. 
 
 {y) Fuller v. Fotch, Carth. 346. 
 
 {z) Bull. N. r. 247. 
 
 (a) Leaders. Barry, 1 Esp. 353. 
 
 {b) Salte V. Thomas, 3 B. & P. 190. 2 
 Ph. Ev. 164. 
 
 (c) The provisions iu this section are 
 only cumulative, and do not restrict the 
 proof to the mode pointed out l>y this 
 section. Iloi;. r. Manwariuf,', D. & H. 132, 
 where \Villiam.s, J., said, '1 mu.st protest 
 against it being supposed that I agree in 
 the notion that when a document of a 
 public nature cannot be produced the 
 parties are tied down to any particular 
 mode of secondaiy proof.' Sec Dorrett 
 V. Meux, 15 C. H." 142, and sec Reg. v. 
 Manwaring, D. & B. 132, anti-, p. 301, 
 as to a certificate of a superintend- 
 
 Examined or 
 certiGed copies 
 of documents 
 admissible in 
 evidence. 
 
 Inspection of 
 records. 
 
 Copy of in- 
 dictment after 
 acquittal, how 
 obtained. 
 
 ent registrar of the registration of a 
 chapel. 
 
 ((0 R. V. Weaver, 43 L. J. M. C. 13, 
 12 Cox, C. C. 527. 
 
 ((■) 2 Phill. Ev. 1 74. 
 
 (/) Tliis practice originated with an 
 order made in tlie 16 Car. 2, by Hyde, 
 Chief Justice of the King's Bench ; 
 Bridgman, Chief .Tustice of the Common 
 Pleas ; Twisden, .1., Tyril, .1., and Ki-lyng, 
 J., 'to bo observed by the Justices of the 
 peace and others at the .sessions in the 
 Old Bailey,' a.s follows : — ' That no copies 
 of any indictment for felony be given 
 without special order, uiKin motion made 
 in open court, at the general gaol delivery 
 upon motion, for the late fn^fjuenc}' of ac- 
 tions iigainst pnwecutors (which cannot 
 be without copies of the indictments) de- 
 terreth people from prosecuting for the
 
 428 
 
 In (uiHO of 
 fuluiiius. 
 
 Of Written Evidence. 
 
 [I'.OOK VI. 
 
 In cases of 
 niisdcincanor. 
 
 Inspection of 
 depositions. 
 
 is said, proroods from an anxioty to protect prosecutors fnjiii being 
 liarassed by uiifoiUKled actions for malicious prosccutimjs, wliich 
 actions cannot bo maintained without proving the fact of the pro- 
 secution by the record or an examined copy of it; and it lias also 
 ])oen said that it is not usual to grant a copy of tlierecord of acquittal, 
 where there is any the least pr()l)able cause for the prosecution, {(j) 
 V>\\\, the copy is admissible without proof of the order of the (Jourt 
 allowing a copy of the record; for though it be the duty of the 
 othccr cliarged with the custody of the records of the Court not to 
 produce a record, or give a copy of it but upon competent au- 
 thority, yet if the officer, in neglect of his duty, shall have given 
 a copy, or produces the original, the evidence in itself is unobjec- 
 tionable, and must be received, (/i) The rule is confined to ca-ses 
 of felony ; in prosecutions for misdemeanors the defendant is 
 entitled to a copy of the record, as a matter of right, without a 
 previous application to the Court. (/) Formerly a defendant on a 
 criminal charge was not entitled to an inspection of the grounds 
 upon which the prosecution was instituted ; (.7) and, therefore, 
 neither in cases of treason nor of felony had he any right to a 
 copy of the depositions of the witnesses who were to appear 
 against him. (/i;) 
 
 King upon great occasions.' Kel. 3. The 
 jurisdiction of these judges to make this 
 order appears extremely questionable, and 
 has been frequently doubted. See Browne 
 r. Cumming, 10 B. & C. 70, and the au- 
 thorities there referred to. In Rex v. 
 Brangan, 1 Leach, 27, the prisoner, hav- 
 ing been acquitted, applied for a copy 
 of the indictment ; but Willes, C, J., ad- 
 mitting that the prosecution bore the 
 .strongest marks of being malicious, re- 
 fused the application, because it was not 
 necessary that he should giant it, de- 
 claring that by the laws of this realm 
 every prisoner, upon his acquittal, had an 
 undoubted right and title to a copy of 
 the record of such acquittal, for any use 
 he might think fit to make of it, &c. ; and 
 that after a demand of it had been made 
 the proper officer might be punished for 
 refusing to make it out. In Browne v. 
 Cumming, the court expressed no opinion 
 as to the authority of the judges to'make 
 the order, but refused to restrain the 
 plaintiif from using a copy of an indict- 
 ment alleged to have been improperly 
 obtained, on the ground that, taking all 
 the facts together, they did not think there 
 had been a mistake or misrepresentation 
 of such a natui'e as to call upon the 
 court to interfere. The order in ques- 
 tion, if not expressly overruled, is much 
 shaken by Rex v. The Justices of Mid- 
 dlesex, 5 13. & Ad. 1113. In that case 
 Bowman had been tried and convicted 
 of larceny at the Clerkenwell sessions, 
 after those sessions had lapsed for want of 
 an adjournment, and being imlicted for 
 the same offence afterwards, at the Old 
 Bailey, he proposed to plead autrefois 
 convict, and the court adjourned the case 
 to give time for an application for a copy 
 of tne record ; Rex v. Bowman, 6 C. & T. 
 
 101 ; and an application was afterwards 
 made to the clerk of the peace for a copy 
 of the record, which was refused. And 
 the Court of Queen's Bench granted a 
 mandamus to make up the record of the 
 proceedings against Bowman, on the 
 giound that 'the prisoner had a right to 
 have the record of the proceedings which 
 passed at the sessions correctly made up, 
 and to make any use of it he could.' The 
 report in Rex v. The Justices of Middlesex 
 erroneously states the application for the 
 mandamus to have been after the prisoner 
 had pleaded his former conviction. See 
 Rex V. Bowman, 6 C. & P. 101, and 337. 
 This case seems to overrule Rex v. Van- 
 dercomb, 2 Leach, 70S, and Rex v. Parry, 
 7 C. & P. 836, where the court refused 
 to grant the prisoners copies of their in- 
 dictments, in order to enable them to 
 plead autrefois acquit, and seems to es- 
 tablish the position that the prisoner is 
 entitled, as of right, to a copy of the in- 
 dictment for such a purpose ; and, if for 
 such a purpose, it is difficult to see why 
 he should not have the same right for the 
 purpose of instituting a civil suit to seek 
 reparation for the injury which he has 
 sustained by the malicious conduct of the 
 prosecutor. C. S. G. 
 
 (g) Tidd. 647. Groenvelt v. Barrett, 
 1 Ld. Raym. 253. It seems that a per- 
 son acquitted is entitled to a copy of the 
 record as a matter of right. See note 
 (/), supra. 
 
 (h) Legatt v. ToUervey, 14 East, 302. 
 
 0) Morrison v. Kellv, 1 Black. Rep. 
 385. Evans r. Phillips, MS. Selw. N. P. 
 952. 2 Phill. Ev. 176. 
 
 U) 2Phin. Ev. 178. 
 
 (k) 2 Phill. Ev. 1 78. In some species 
 of treason the prisoner is enritled to a 
 copy of the indictment, ibid. Rex v. Hoi-
 
 CHAP. III. § I.] Public Documents. 429 
 
 But now the 6 & 7 Will. 4, c. 114, 'An Act for enabling persons ^ & 7 Will. 4, 
 indicted of felony to make their defence by counsel or attorney,' by '^' ^^^' ^' ^' 
 sec. 3 enacts 'that all persons who after the passing of this Act Copies of de- 
 shall be held to bail or committed to prison for any offence against po^'itions to be 
 the law, shall be entitled to require and have, on demand (from tlie ^,r°onor8° 
 person who shall have the lawful custody thereof, and who is 
 hereby required to deliver the same), copies of the examinations 
 of the vjitnesses respectively uijon tvhose depositions they leave 
 been so held to bail, or committed to prison, on payment of a 
 reasonable sum for the same, not exceeding three halfpence for 
 each folio of ninety words : provided always, that if such demand 
 shall not be made before the day appointed for the commence- 
 ment of the assize or sessions at which the trial of the person on 
 whose behalf such demand shall be made is to take place, such 
 person shall not be entitled to have any copy of such examination 
 of witnesses, unless the judge or other person to preside at such 
 trial shall be of opinion that such copy may be made and delivered 
 without delay or inconvenience to such trial ; but it shall never- 
 theless be competent for such judge or other person so to preside 
 at such trial, if he shall think fit, to postpone such trial on account 
 of such copy of the examination of witnesses not having been 
 previously had by the party charged.' 
 
 Sec. 4. ' All persons under trial shall be entitled, at the time rrisoners 
 of their trial, to inspect, without fee or reward, all depositions (or entitled to ia- 
 copies thereof) which have been taken against them, and returned ^|[|j|g on^riai. 
 into the Court before which such trial shall be had.' {I) 
 
 The 11 & 12 Vict. c. 42, s. 84, repealed this Act so far 'as After exami- 
 relates to the right of parties charged with offences to have copies "•''tions arc 
 
 o r o 1 completed , 
 
 land; 4 T. R. 691. In that case an in- to make a statement for himself, and tell 
 formation had been filed against an olficcr his own story, which is to have such 
 of the East India Company, on charges weight with the jury as, all circumstances 
 of delinquency founded upon a report considered, it is entitled to; but if he em- 
 of a board of inquiry in India : and the ploys counsel he nmst submit to the rules 
 Court of King's I'ench were of opinion which have been established witli res])ect 
 that he had no right to have an insi>ection to the conducting cases by counsel. Keg. 
 of that report, and that the court had no v. Beard, 8 C. & P. 142, Coleridge, J. 
 discretionary power to grant it. And tlie same learned judge held that 
 (/) Sec. 1, reciting that 'it is just after tlie prisoner's coun.sel had addressed 
 and reasonable that persons accused of the jury for him, the prisoner liimselfwjia 
 olTences against the law should be enabled not at lil)erty also to adtlress tliem. Reg. 
 to make tiuur full answer and defence to ?^ Boucher, 8 C. & P. 141. Hut when- on 
 all that is alleged against them,' enacts an indictment for maliciously wounding 
 that ' all persons tried for feliuiies shall the jirosccutor when no other person wius 
 b(; admitt(!d, after tlio close of the ca.sc present, the prisoner hail made a .state- 
 for the prosecution, to make full answer ment before tin" magistrate, whieli wn.s 
 and defence thereto, by counsel learned not put in by tlie counsel for tlie prosi- 
 in the law, or by attorney in courts wiiero cution ; .Mderson, H., iiermitted tiie pri- 
 attornies practise as counsel.' Sec. 2, .soner to make a statement before his 
 providing that in all cases of summary counsel addressed the jury, and then hi.s 
 conviction jicrsons accused shall be ad- counsel addressed the jury and com- 
 mitted to make their full answer, &c., meiited on tin' pri.soner's statement as 
 is repealed by the 11 & 1'2 Vict. c. 4"2, but according witli the evidence, and only 
 re-enacted by sec. 12. As to the practice supplying what was otherwise deticieiit 
 which has prevailed since this statute in it. Tiie learned Haron .'uiid, ' I tliink it 
 passed, it has been held that a prisoner's is right tliat a jierson should have an op- 
 counsel cannot bo permitted to tell tiie ]H>rtunity of stating sucli fact.s as he may 
 jury any facts which iie has heard from tliink material, and thathis counsel sliould 
 the prisoner, but which he is not in aeon- be allowed to comment on that state- 
 dition to prove. Reg. r. Hutcher, 2M. k ment, ius one of the circumstjuice.s of the 
 Rob. 228, Coleridge, J. If the prisoner case. On trials fi.r liigli trciisoii tlie pri- 
 does not employ counsel, he is at liberty soner is always allowed to make his own
 
 430 
 
 dofondant cn- 
 titUiil t<) copies 
 of tho deposi- 
 tions. 
 
 Of Written Evidence. 
 
 [book VI. 
 
 rcrsoiifl 
 a;^ivinat whom 
 coroner's juries 
 have found 
 verdicts of 
 manslaughter 
 to lie supplied 
 with deposi- 
 tions. 
 
 of the (lopoHitiotis or oxarniiKitions against tlicm,' and })y sec. 27 
 enacts tliat ' at any time after all the cxanninations aforesaifl shall 
 have been completed, and before tlio first day of the assizes or 
 sessions or other first .sitting of the Covin at which any person so 
 committed to prison or admitted to bail as aforesaid is to be tried, 
 such ])crs»>n may require, and shall be entitled to have, of and 
 from tin; oificer or person having the custody of the same, copies 
 of the depositions on which he shall have been committed or bailed, 
 on payment of a reasonable sum for the same, not exceeding at 
 the rate of three halfpence for each folio of ninety words.' 
 
 The 22 & 23 Vict. c. 83, which authorizes coroners to admit to 
 bail any person against whom a verdict of manslaugliter has been 
 found, by sec. 3 enacts that ' at any time after all the depositions 
 of witnesses shall have been taken, every person against wdiom 
 any coroner's jury may have found a verdict of manslaughter shall 
 be entitled to have from the person having custody thereof copies 
 of the depositions on which such verdict shall have been found, 
 on payment of a reasonable sum for the same, not exceeding the 
 rate of three halfpence for every folio of ninety words.' (m) 
 
 statemeut after hi.s counsel has addressed 
 the jury. It is true that the prisoner's 
 statement may often defeat the defence 
 intended by his counsel ; but if so the 
 ends of justice will be furthered ; besides, 
 it is often the genuine defence of the 
 party, and not a mere imaginary case in- 
 vented by the ingenuity of counsel.' 
 Reg. V. Malings, 8 C. & P. 242. And 
 at the same assizes Gurney, B., after con- 
 ferring with Alderson, B., allowed a 
 similar course to be adopted, but said 
 that he tliought it ought not to be drawn 
 into a precedent ; and the prisoner read 
 a \\Titten statement. Reg. v. "Walking, 
 8 C. & P. 243. The report does not 
 state what the particular facts were in 
 this case. Alderson, B., allowed the 
 same course in Reg. r. Dyer, 1 Cox, C. C. 
 11.3, and Reg. n Williams, 1 Cox, C. C. 
 363 ; and in Reg. v. Manzano, 2 F. & F. 64, 
 Martin, B., after consulting Channell, 
 B. , allowed the same course, as there was 
 a precedent for it in 8 C. & P., although 
 he was entirely ojipo.sed to the practice. 
 But where on an indictment for child- 
 murder the two previous cases in 8 C. & 
 P. were cited, and permission asked 
 for the prisoner to make a statement, Pat- 
 teson, J., said, 'The general rule certainly 
 ought to be that a prisoner defended by 
 counsel should be entirely in the hands of 
 his counsel, and that rule should not be 
 infringed on, except in very special cases 
 indeed. If the prisoner were allowed to 
 make a statement, and stated as a fact 
 anything which could not be proved by 
 evidence, the jury should dismiss that 
 statement from their minds ; but if what 
 the prisoner states is merely a comment on 
 what is already in c^'ideuce, his counsel 
 can do that much better than he can.' 
 The prisoner did not make any statement. 
 Reg. r. Rider. 8C. & P. 539. And where 
 on an indictment for a misdemeanor in 
 
 uttering base coin, a prisoner wished to 
 make a statement of facts to the jury be- 
 fore his counsel addressed them, and it 
 was said that Lord Denman, C. J., had 
 allowed it to be done ; Bosanquet, J., re- 
 fused to permit it, and observed that he 
 was not informed of the circumstances of 
 the cases decided on this Act, which he 
 thought could only be meant to put pri- 
 soners in the same situation in felonies as 
 they were in before in misdemeanors, and 
 in those cases certainly a defendant could 
 not be allowed the privilege of two state- 
 ments, one by himself, and one by his 
 counsel. Reg. v. Burrows, 2 M. & Rob. 
 124. And so where Reg. v. Dyer, supra, 
 and Reg. v. Malins, supra were cited, 
 Byles, J. , refused to allow the prisoner to 
 state his defence before his counsel ad- 
 dressed the jury, but gave the prisoner 
 the option of either speaking himself or 
 having his counsel speak for him. No 
 facts are stated in this case, which was 
 a Mint prosecution. Reg. v. Taylor, 1 
 F. & F. 535. Counsel for the prosecu- 
 tion, except in very simple cases, open 
 the case before calling \vitnesses. See 
 Rex V. Gascoine, 7 C & P. 772. S. P. 
 Reg. V. Morgan, 6 Cox, C. C. 116, per 
 Talfourd, J. 
 
 (?n) This section is as clearly confined 
 to cases of manslaughter as the previous 
 sectionsas tobailin casesof manslaughter. 
 Two questions arise respecting the 6 & 7 
 "Will. 4, c. 114, s. 3: 1st, Did that section 
 apply to depositions before a coroner ? 
 In Reg. V. "White, 5 Cox, C. C. 562, Piatt, 
 B., held that it did ; and this niling 
 seems to be correct ; for the paramount 
 intent of the Act to give the prisoner 
 copies of the depositions in all cases is so 
 clear, and the absurditA* of holding that a 
 person committed for murder is not en- 
 titled to copies of the depositions before 
 the coroner, though he is to those before
 
 CHAP. III. 
 
 I-] 
 
 Public Documents. 
 
 431 
 
 At a meeting of the judges after the passing of the 6 & 7 Will. 4, Rules as to 
 c. 114, for the purpose of choosing the Spring Circuits of 1837 ^^^ practice 
 (Littledale, J., Bosanquet, J., and Coleridge, J., being absent j^n^of this*^' 
 from indisposition), a discussion took place as to some points which statute, 
 were thought likely to occur at the assizes, in consequence of the 
 recent Act for allowing prisoners indicted for felony to make full 
 defence by counsel; and the course of practice which the judges 
 present thought it would be most advisable to adopt will be found 
 in 7 C. & P. 676. Rules 1, 2, & 3, as to cross-examining a witness 
 on his deposition made before a magistrate, are obsolete, by reason 
 of 28 & 29 Vict. c. 18, noticed post. 
 
 Rule 4. If the only evidence called on the part of the prisoner 
 is evidence to character, although the counsel for the prosecution is 
 entitled to the reply, it will be a matter for his discretion whether 
 he will use it or not. Cases may occur in which it may be fit and 
 proper so to do. (o) 
 
 Rule 0. In cases of public prosecutions for felony, instituted by 
 the Crown, the law officers of the Crown, and those who represent 
 them, are, in strictness, entitled to the reply, although no evidence 
 is produced on the part of the prisoner. ( p) 
 
 magistrates, is so great, that the reason- 
 able construction of the clause is that the 
 prisoner is entitled to copies in both cases 
 alike ; though Mr. Archbold Jerv. Acts, 
 84, 2nd ed., has expressed a strong doubt 
 on the point. The next question is, how 
 far is the section repealed by the 11 & 12 
 Vict. c. 42, s. 34 ? That clause was not 
 referred to in Reg. v. White, which was 
 decided after that Act passed. That case, 
 therefore, can hardly be treated as an 
 authority that the clause is not repealed 
 as to depositions before a coroner ; but, 
 although the terms of the repeal are wide, 
 it should seem tiiat they may reasonably 
 be limited so as only to repeal the clause 
 as to depositions before magistrates ; for 
 a verdict of murder or manslaughter may 
 be found by a coroner's jury against a 
 person who is not present at the inquest, 
 and it can hardly be correctly said that 
 any person is charticd with an offence be- 
 fore a coroner, or that the depositions are 
 taken against any one on the holding of 
 an inquest. If this reasoning be correct, 
 the 22 & 23 Vict. c. 33, s. 3, was un- 
 necessarj', and the difficulty arising from 
 that clause being confined to manslaugh- 
 ter is immaterial. 
 
 The 6 & 7 Will. 4, c. 114, gave the 
 prisoner no right to copies of the deposi- 
 tions after the commencement of the 
 assizes or sessions, unless the court were 
 of opinion that the copies miglit be made 
 without inconvenience ; and this part of 
 the section does not a])pear to be affected 
 by the repeal, as the repeal only extends 
 to ' the rirjht of parties charged with 
 offences to have copies.' 
 
 (o) See ante, p. 390. It is not usual to 
 reply when witnesses to character alone 
 are called. 
 
 {jy) 7 C. & P. 676. In Re.x v. Mars- 
 den, M. & M. 43!), an indictment for 
 publishing a libel on the Duke of Wel- 
 
 lington, the Attorney-General, instructed 
 by the Solicitor for the Treasur}', con- 
 ducted the prosecution, and stated, in 
 answer to an objection that he was not 
 entitled to reply, that he appeared in 
 his official capacity ; Lord Tenterden, 
 C. J., said, 'There is no doubt of the 
 rule; wherever the King's counsel appears 
 officially, he is entitled to reply.' But on 
 the same day in Rex v. Bell, ibid. 440, a 
 criminal iiiformation for a libel on the 
 Lord Chaucellor, the Attorney-General 
 stated that he appeared as the counsel 
 and private friend of the Lord Chancellor, 
 and, no evidence being offered in defence, 
 he did not reply. In Keg. v. Gardner, 
 1 C. & K. 628, an indictment for stealing 
 money out of a post letter, Whately, Q.C., 
 claimed the reply, as he represented the 
 Attorney-General ; but it was urged that 
 this was like a prosecution by any other 
 of the public departments. Pollock, C. B. , 
 ' If this is a prosecution by the Attorney- 
 General, those who represent him, though 
 not usually counsel for the Crown, have 
 the right to reply, as in the Mint ca.ses 
 at the Old Bailey. ' [On the Oxfonl cir- 
 cuit I never knew the right to reply 
 chiimed in a Mint case. I was my- 
 self counsi'l for the Mint at Hereford, 
 Monmouth, and (Jloucester for many 
 years, and never claimed, or had it sug- 
 gested to me that I should claim, the 
 rejily where no evidence was given for 
 the prisoner.] \w\ in Reg. »•. Taylor, 
 1 F. & F. r)35, whicli was a Mint pro- 
 secution on circuit, Byles, J., would not 
 admit the right of reply. In Keg. v. 
 Beckwith, 7 Cox, C. C. f>05, an indict- 
 ment for forging voting papers at an 
 election of guardians of tlio iwor, tiin 
 
 frosecution liad Won directed by the 
 'oor Law Board, and Mliss, l,). C., stated 
 that ho appeared for the .Vltorney-Go- 
 ncral and claimed the reply ; citing Reg.
 
 432 
 
 A prisoner is 
 not i'iitillt!>l to 
 n coi)y of lii.s 
 uxiiiniiiatiuii. 
 
 Of Written Evidence. 
 
 [book VI. 
 
 A prisoner 
 must be held 
 to bail or 
 committed for 
 trial to be 
 entitled to a 
 copy of the 
 depositions. 
 
 Additional 
 evidence. 
 
 Depositions 
 
 against 
 
 another. 
 
 Before a 
 coroner. 
 
 A prisoner is not cnlitlcd under Uic Act to a cojjy of his own 
 I'XHiiiin.itioii, taken before tlie committing magistrate, wliicli has 
 been returned with the depositions, l)ut only to a copy of the 
 depositions of the witnesses against him. (q) This decision, ob- 
 serves Mr. Phillipps, (r) is founded on the express language of the 
 Act, which speaks of depositions of witnesses, and .says nothing 
 of the examinations of ])risoners. Yet it may in .some cases be as 
 necessary for the full defence of the prisoner that he should be 
 furnished with a copy of his own statem(;nt taken in writing 
 before the magistrate, as it is to liave a copy of the depositions, 
 especially where a part of the case for tlic prosecution consists of 
 evidence intended to disprove or contradict the prisoner's state- 
 ment. In such a case, if it were necessary for the ends of ju.stice, 
 the judge, by virtue of his judicial authority, miglit allow the 
 prisoner to inspect his written examination, (.s) 
 
 It was held that a prisoner was not entitled, under the G & 7 
 Will. 4, c. 114, s. 3, to copies of the depositions until he was 
 finally committed or held to bail for the purpose of trial, and there- 
 fore he was not so entitled on being committed for further exami- 
 nation, (t) and it has also been held that a prisoner is not entitled, 
 under the 11 & 12 Vict. c. 43, s. 27, to such copies, imless he has 
 either been committed to prison to take his trial at a particular 
 time, or has been admitted to bail to make his appearance at a 
 certain time, for the purpose of being tried ; and therefore a 
 person committed till the next sessions for want of sureties to keep 
 the peace, and then do what should be enjoined him by the 
 court, is not entitled to copies of the depositions taken against 
 him. (u) 
 
 Where additional evidence has been obtained after the com- 
 mittal, but no depositions containing such evidence taken, the 
 court has no authority to order a copy of such evidence, (v) 
 
 Where the prisoner was committed for receiving iron, knowing 
 it to have been stolen, and a person, who had been committed as 
 having stolen the iron, was admitted as a witness for the Crown, 
 Pattesou, J., allowed the prisoner's counsel to inspect the deposi- 
 tions which had been returned against the person charged as the 
 thief, (lu) 
 
 Where a true bill was found against a prisoner for the murder 
 
 V. Gardner ; but Bylcs, J., said, 'I am of 
 opinion that the right to reply where the 
 prisoner calls no witnesses ought to be 
 limited to the Attorney-General when 
 prosecuting in person, and if I coidd do 
 so, 1 would not allow it even in that ca.se. 
 I certainly cannot permit it under any 
 other circumstances,' and refused to 
 allow a reply. In Keg. v. Christie, 7 
 Cox, C. C. 506, an indictment for mur- 
 der on the sea, Bliss, Q. C, at the close of 
 the case for the prosecution, claimed the 
 reply under any circumstances, as he ap- 
 peared ex officio as Attorney-General of 
 the County Palatine of Lancaster ; Mar- 
 tin, B., * I cannot admit your claim ; the 
 right is a very objectionable one ; I shall 
 limit it wherever possible, and I wish I 
 could prevent even the Attorney-General 
 
 of England from exercising it. ' C. G. S. 
 
 iq) Reg. I'. Aylett, 8 C. & P. 669, 
 Littledale, J., and Parke, B. 
 
 (r) 2 Phill. Ev. 181. 
 
 (s) See per Coleridge, J., in Ex jxirle 
 Greenacre, note (x), infra. 
 
 (t) Reg. V. Mayor of London, 5 Q. B. 
 555. 
 
 (n) Ex parte Humphrys, 4 Sess. C. 179, 
 Coleridge, J., who seemed also clearly 
 of opinion that a prisoner would have no 
 right to a copy of the depositions after he 
 had been tried. 
 
 (!) Reg. V. Connor, 1 Cox, C. C. 233, 
 Patteson, J. 
 
 {w) Reg. V. Walford, 8 C. & P. 767. 
 The report does not state whether these 
 depositions were taken in the presence or 
 absence of the prisoner.
 
 CHAP. III. § il] Private Documents. 433 
 
 of a person, on the investigation of whose death the coroner's jury 
 returned a verdict of ' Wilful murder against some jDerson or per- 
 sons unknown,' and the depositions taken before the coroner were 
 in the possession of the officer of the court before whom the pri- 
 soner was to be tried ; it was held that, although the coroner 
 could not have been compelled to return the depositions under the 
 7 Geo. 4, c. 64, s. 4, yet the judges had power l>y their general 
 authority as a court of justice, if they thought it essential to 
 the interests of justice, to order a copy of them to be given to the 
 prisoner, {x) 
 
 Where a prisoner was indicted for obtaining money by falsely Letters, 
 pretending that a parcel contained a number of letters, and those 
 letters had been seized uuder a search-warrant, and were in the 
 possession of the prosecutrix, who had written and sent them to 
 the prisoner, an order was made by the Central Criminal Court for 
 an inspection of the letters, but not for copies. (//) 
 
 Where civil rights are depending, a party has a right to inspect, Inspection of 
 and take copies of such books, &c., as are of a piihlic nature, P"^''*= hoo)is. 
 wherein he has an interest ; {z) but a rule for inspecting a public 
 writing is never granted, where the party who has them in his 
 custody would, by producing them for inspection, expose himself 
 to a criminal prosecution; for in criminal cccses a party is never 
 compelled to furnish evidence against himself («) 
 
 2ndly. Of the proof of private documents. Before the 28 & 29 Vict. 2. Of tlic iJim.f 
 c. 18, the execution of all written instruments which were attested, of private 
 whether under seal or not, must have been pi'oved by the subscribing °^"'"*^" *• 
 witness, if he could be produced, and was capable of being exa- 
 mined. (6) And this although he had become blind, as he might,froiii 
 his recollection of the transaction, give most important evidence re- 
 specting it. (c) But where the attesting witness was dead, ((/) or in- 
 sane, {e) or absent in a foreign country, or not amenable to the 
 process of the superior courts, (/) as where he was in Ireland, (^) or 
 where he could not be found after diligent inquiry, {h) evidence of the 
 witness's handwriting was admissible, (i) In these cases the proof of 
 the subscribing witness's handwriting was evidence of the execution 
 of the instrument by the party therein named, whose signature the 
 instrument purported to bear; and for the purpose of proving the 
 execution, that is, that the instrument was executed by the party .so 
 named, it was not necessary to prove tlie handwriting of the party. ^J) 
 
 (.c) J'Jx parte Vtiv.ena,cve, 8 C. & T. 32, of iMiikeis' books uiu1<t tlif Ikiikcis' 
 
 Littledalc, J., and Coleridgo, J., and |)cr I'xjoks KvidcTice Ait. 187t>, sec s. (5 of 
 
 Colcridj^f, J., 'SupitosiiiK tlie.se dejiosi- tlie Act, /)os/, -1:5;) ami .Vii|wnilix. 
 lions liad been aj,'ainst some utlior iieisoii (/-) Doe r. Diunfonl, 2 .M. iV S. (i2. 
 
 tiiid a year ago for an oH'ciice witli wliicli Hi^'gs r. Di.xon, 2 Slark. N. 1'. < '. 
 
 this particular jnisoin'r had iiotiiiii^' to ISO. .\bb<it >'. riumbe, 1 l>(.ii^;l. 21ii. 
 
 do, yet if wo had them, have we not Wliynian r. Carth, S Kxeli. K. ."^OU. 
 autiiority as a couvtof justice, ifwetliink ^c) L'ronk c. Frith, !><'. ii I*. I'."", 
 
 it essential to the interests of justiee, to Lord Abinger, (.'. 1?., 2 .M. & Kob. 2(52. 
 onler a co]>y of them to be given to him .' ((/) Anon. 12 iMod. 607. See Keg, r. 
 
 I think that we have.' St. Giles, 1 K. & B. 642. 
 
 (//) Reg. r. Coluoei, 3 F. k F. Iii3. (c) furric r. Child, 3 ("amj.b. 283. 
 
 (iinrrc whither these letters were not the {/) I'riiiee i". Hlaekbiirn, 2 luist, 25t). 
 
 iiroperty of the ]irisoni'r ; and <i'((in the {<i) Hodnett c. Formaii, 1 Sfark. N. I'. ('. 
 
 ri"ht to issue a seareli-warnnil fortlirm. I'O. 
 
 ,,^;^ C; (I,) Cnnliire r. .^.fton. 2 Ivi.st, 183. 
 
 ■(,) Tidd.647. (') '-^I'l'ill. Kv. 210, rrsr-,. 
 
 (a) Tidd. 64;i. As to the inspection (j) 2 I'hdl. Kv. 214, 
 
 VOL. in. ^ ^
 
 mcnt. 
 
 4;M Of Written Evidence. [book vr. 
 
 WIktu proof p.iit now by tlic 2S & 2'.) Vict. c. 18, s. 7, * it shall not bo noces- 
 
 liy atirsiiu;,' s.irv to i)r()V(! 1)V the {ittt'stinf; witness any instninw-nt, to tiie 
 iiniicccsNuy. valitlity of which attestation is not rc<|uisitc, and such instrument 
 
 ni.iy he proved as if there had been no attesting witness.' 
 J.ostinstni- \\'here an instrument is lost the execution by the parties 
 
 may be proved, (k) It seems that in a case wliere attestation 
 was re(iuisite where the attesting witness to a lost instrument 
 is (lead, it is unnecessary to prove his handwriting, unless it be 
 necessary for the purpose of proving his identity. (/) Under 
 particular circumstances an instrument signed by one prisoner and 
 Kvi.lcme of attested by another pri.soner was held to be admissible against 
 identity. ^J^^(^|^ upon ]iroof of their signatures, (m) Where, before the 
 
 above Act, the attesting witness to a promissory note was in 
 Canada, and his handwriting was proved by his nephew, who 
 did not know where cither tlie defendant or the plaintiff lived, 
 or anything about the defendant, or about his making Ids mark 
 to the note, the Court of Exchequer held that this was in- 
 sufficient ; for although proof of the attestation would be evidence 
 of everything on the face of the instrument, viz., of everything he 
 as attesting witness asserted, yet by his attestation he does not 
 assert that ilt'is defendant signed the note ; but that .w//i€ F. M. 
 did ; that F. M. is left unidentified and unconnected with the 
 person sued ; but the issue to be proved is that this F. M. 
 executed, (n) So wliere an attesting witne.'=-s to a promissory note 
 proved that the signature Hugh Jones was written on the note in 
 his presence by a Hugh Jones who kept a public-house at a 
 particular place in Anglesea, but he had not seen him since the 
 date of the note, and the name was a very common one in Anglesea ; 
 it was held, on the authority of the preceding case, that there was 
 no sufficient evidence to go to the jury of the identity of the 
 person who had signed the note with the defendant, against whom 
 theaction was brought upon the note, (o) But where a bill of ex- 
 change was directed to ' Ciiarles Banner Crawford, East India 
 House,' and a witness proved that the handwriting of the accept- 
 ance, 'C. B. (.^rawford,' Avas that of a clerk of that name in the East 
 India House, who had loft it five years ago, but he did not know 
 Avhother he was the defendant in the action ; it was held that 
 there was sufficient evidence of the identity, (p) So where three 
 bills of exchange were accepted in the name of Henry Thomas 
 
 (^•) Keeling r. Hall, Peake, Ev. App. this case the instrument w;xs ])Ut in 
 
 xxxii. evidence as part of the fraud charged 
 
 (?) Re", r. St. Giles, 1 E. & I?. 642. against both prisonere. 
 
 22 L J %l. C. 54. («) "Wliitlock r. Musgiave, 3 Tvrw. 
 
 {m) Reg. V. Marsh, 1 Den. C'. C. 505. 541, C. & .M. 521. 
 
 This was an indictment against Marsh and (o) Jones v. Jones, 9 M. & "\V. 75. 
 
 Lordforatteni]itingto obtain moneyfrom Parke, B., 'Theplaintitl'uiiglit have called 
 
 an Insurance Company by a false claim the ilefendant's attorney to say whether 
 
 in wViting for a loss of a hor.se, whi(]i the person who employed him was the 
 
 was signed by ^larsh and attested by Hugh Jones who kept the public house.' 
 
 Lord ; and Wightman, J., held that the Lord Abingcr, (.'. B., said, 'The argument 
 
 document was admissible on proof of for the plaintilf might be correct, if the 
 
 the handwriting of the piisoners without case had not introduced the existence of 
 
 calliu" Lord as a witness. The point many Hugh Joneses in the neighbomhood 
 
 was reserved, but the case went off on where the note was made. ' 
 
 an objection to the indictment, see (;i^ Greenshields r. Crawford, 9 M. & 
 
 vol. 2, p. 594, and this point was not W. 314. 
 noticed. It should be noticed that in
 
 CHAP. Til. § II.] Private Documents. 435 
 
 Kyde, and made payable at the Regent Street brancli of the 
 London and Westminster Bank, and the cashier of that bank 
 proved that he knew the handwriting of Henry Thomas Ryde, and 
 that the acceptances were in his writing, that he had kept an 
 account at the Regent Street branch, but his only means of know- 
 ledge as to the handwriting consisted in his having as cashier paid 
 cheques drawn in the name of Henry Thomas Ryde, whom he did 
 not know and had never seen write ; it was held that there was 
 sufficient evidence of identity of the person who had accepted the 
 bills with Henry Thomas Ryde, the defendant in an action brought 
 upon those bills, (q) So where a witness proved that he saw a 
 person of the name of William Seal Evans write a letter about five 
 years ago, which letter was produced, and established a case against 
 the defendant, William Seal Evans, for goods sold and delivered, 
 if the identity of the writer and the defendant were shown, but 
 the witness had not seen the person since, and did not know 
 whether he was the defendant ; it was held that there was suffi- 
 cient evidence of the identity, (r) Evidence that the defendant 
 was present when the instrument was prepared, (s) or that he had 
 made acknowledgments respecting it, ( ^ ) would be sufficient to 
 connect him with the instrument. And if an instrument describes 
 a party on the face of it by name, place of abode, and trade (as F. 
 M. of R. in the county of Y., carpenter), the cases establish that 
 proof of the handwriting of the subscribing witness would be 
 sufficient to show that it was signed by a person truly described as 
 being of that name and place ; but still the plaintiff must show 
 that the defendant corresponds with that description, [o) So 
 where in an action against James Roberts, as a petitioning creditor, 
 it appeared from the proceedings in the Bankruptcy that the 
 petitioning ci'editor was James Roberts ; it was held that this was 
 sufficient _2^ri77i(2/ac/e evidence of identity, (v) So where a genuine 
 licence was proved under the seal of the Apothecaries' Company, 
 Avhich granted a right to practise and dispense medicines as an 
 apothecary to a person of the same Christian and surname as the 
 
 (q) ]{o(len V. Eyde, 4 Q. I>. 62(i. ' Suppose a ]icrson to be tried for forf^in.:^ 
 (/•) Scwell V. Evans, 4 (). 15. C-2(i. the .si;,'iiature of W. R. Aider of 11. House 
 This and the i)receding case were decided toa bond, and tliat the subscribiii;^\vitiicss 
 at the same time. The gi-onnds of the said, " I saw that bond sij^iiedat tlic inn I 
 decision seem to have been, that where keep, but I never .';aw the party oxeiu- 
 no particular cirtiunstanee tends to raise tinj^ before or since," could that juisoncr « 
 a question as to tlic i)arty being the siiine, case be lift to thejiuy.'' See lioclen r. 
 even identity of name is something fidui b'yde, si'jmi, per rattescn, .1., and Lord 
 whirh an inference may l)e drawn. If DeTimau, ('. J. In Hcg. c. Kllcn MurtJigh, 
 tlic name were one of very friiiucnt <«•- i! (.'ox, L'. (.'. 417, the prisoner was in- 
 currence, there might not be mucli ground dieted for making a false drelaratiou, and 
 for drawing the conclusion ; but where it wa.s piovcd that the declaration was 
 a name is not so common, the inference made by a woman describing lienclf as 
 would be ditferent. The supjiosition that Klien .Murtagh, and that ahe aHi.\e<l her 
 the right man has Ijcen sued is reasonable, mark to it, but the wit nes.ses were unable 
 lu'cause, if not, he might so easily ]irove to identi!'y the prisoner a.s that wonnm, 
 that ho was not tlie person, and on ac- and a statement of the prisoner having 
 count of the danger a party would incur been hold inadmissible, she was aci|uittoil, 
 if he served proces.s on a wrong party and it was not even snggesto<l that thero 
 intentionally. In a criminal ease it was any evidence to go to tho jury. 
 seems tliat in general the mere fact that rennefather, M., and Moore, .T. 
 a person of the same name as the pri- (s) Nelson r. Whittall, 1 H. k A. 19. 
 soncr signed a document oi' the like (t) Whitelock v. Musgiiive, siijua. 
 would not be considered sufiicient evi- (//) Whitelock r. Musgravo, .iiipin, 
 dence of identity. See Logan v. Alder, per Hayley. .1. 
 
 3 Tyrw. 557, where BoUaud, B., said, ^r) llambcr v. Robcrt.'S 7 C. B. 8»51. 
 
 r K J
 
 l;)(i <>/ Written, Evidence. [book vi. 
 
 plaiiitiir, wliu had Hctod as an apcjtliccaiy, piescribiii;; and dis- 
 pensing^ niudicinus to his patients ; it was hold that tlicre was 
 ample evidence to go to the jury of the identity of the plaintiff 
 with the person named in the licence, (vv) So where in an action 
 against a pilot for n(>glij[f('ncc in the management of a vessel, it 
 was ol)jected that no evidence had been given that the defendant 
 was the pihtt, whereon the plaintiiV's counsel called out Mr. Hen- 
 derson, intending to call the defendant's son as a witness to prove 
 that fact, when a person answered him and said, ' I am the pilot ; ' 
 lie was not sworn, but was proved to have been acting as pilot at 
 tlie time of the accident ; it was held that there was some evidence 
 of identity, as the name and calling resembled those of the 
 defendant, (vj) 
 Hamhvriting jn /)oc (l Mtuhl V. SiKimuorc, 5 Ad. & E. ]). 730, Patteson, J., 
 
 ow i>io\c< . j^ reported to have said, ' All evidence of handwriting, except where 
 the witness sees the document written, is in its nature comparison. 
 It is the belief which a witness entertains upon comparing the 
 writing in question \vith an exemplar in his mind derived from 
 some previous knowledge. That knowledge may have been ac- 
 quired, either by seeing the party write, in which case it will be 
 stronger or weaker, according to the number of times and the 
 periods, and other circumstances under which the witness has seen 
 the party write, but it will be sufficieut knowledge to admit the 
 evidence of the witness (however little weight may be attached to 
 it in such cases), even if he has seen him write but once, and then 
 merely signing his surname ; Garrelh v. Aluxo/iuler {x), PuiveU 
 V. Fu)-(I,(y) Lewis v. ^ap'io ; (s) or the knowledge may have been 
 acquired by the witness having seen letters or other documents 
 professing to be the handwriting of the party, and having after- 
 wards communicated personally with the party upon the contents of 
 those letters or documents, or lia\nng otherwise acted upon them by 
 written answers, producing further correspondence, or acquiescence 
 by the party in some matter to which they relate, or by the witness 
 transacting with the party some business to which they relate, or 
 by any other mode of communication between the party and the 
 witness which, in the ordinary course of the transactions of life, 
 induces a reasonable presumption that the letters or documents 
 were the handwriting of the party. Lord Ferrers v. Shirley, (a) 
 Buller's Nisi Prius, 23G, Carey v. Pitt, (h) Thorpe v. Gishunie, (c) 
 Harrinyton v. Fry, (d) evidence of the identity of the party being 
 of course added aliunde, if the witness be not personally acquainted 
 Avitli him. These are the only modes of acquiring a knowledge of 
 handwriting, which have hitherto, as far as I have been able to 
 discover, in our law been considered sutficient to entitle a witness 
 to speak as to his belief in a question of handwriting In both 
 the witness acquires his knowledge by his own observations upon 
 facts coming under his own eye, and as to which he does not rely 
 
 (vf) Simpson r. Dismoir, 9 M. & W. (ic) Smith c Heudei-soii, 9M. &W. 973. 
 
 47 , ami see Russell r. Smyth, 9 M. & W. (x) 4 Esp. 37. 
 
 810, where the same Chiistiaa and sur- {ij) 2 Stark. X. V. C. 164. 
 
 name, profession, residence, and age of a u) 51. & M. 39. 
 
 person named in a suit as those of the </') Fitzg. 195. 
 
 defendant were held siifticient evidenec {!') Peake, Add. Ca. 130. 
 
 of identity of the party named in the snit (r) 2 C. & P. 21. 
 
 with the defendant. " t^') Pt. * M. OO.
 
 CHAP. in. § IT.] Private Docmnants. 437 
 
 on the information of others, and the knowledge is usnall}', and 
 especially in the latter mode, acquired incidentally, and, if I may 
 so say, unintentionall}^, without reference to any particular object, 
 person, or document. 
 
 If a witness states that he has only seen a party write once, ))ut 
 thinks the signature is his handwi-ltivig, it is e\idence to go to the 
 jury, {e) Where on an information fnr a lihel, in order to show 
 that certain letters were in the handwriting of the defendant, a 
 witness prov^ed that he had never seen the defendant write, but he 
 had seen a number of letters, which purported to have come from 
 him on the subject of a cause in which he was engaged on one 
 side, and the witness on the other side, and the witness had acted 
 upon those letters in the course of the cause ; Lord Tentonlen, 
 C. J., held that the Avitness was competent to prove the defendant's 
 handwriting. (/) But where an attorney for three defendants 
 stated that he did not know the handwriting of one of the 
 defendants, but before undertaking to defend the action, he had 
 required a retainer signed by all three defendants, and had received 
 a retainer purporting to be signed l)y all the defendants, upon 
 which he had acted ; it was held that the attorney was not com- 
 petent to prove the handwriting of the one defendant ; for one of the 
 other two defendants might have signed the retainer for liim with 
 his assent, {g) Where a witness had observed a name signed to 
 an affidavit, which had been used by the plaintiff's counsel in 
 answer to an application to postpone the cause, and in the affidavit 
 it was sworn that the party signing it was the plaintiff's wife ; 
 Park, J. A. J., held that the witness might speak to that person's 
 name as the attesting witness to an agreement purporting tti be 
 signed by the plaintiff, {h) 
 
 Before the 28 & 29 Vict. c. 18, it was an established rule, that Comparison of 
 handwiiting coukl not be proved by comparing the paper with any limulwriting. 
 other papers acknowledged to be genuine, (i) 
 
 But now by the 28 & 29 Vict. c. 18, s. 8, 'comparison of a dis- 
 puted writing with any writing proved to the satisfaction of the 
 judge to be genuine shall be permitted to be made by wit- 
 nesses ; and such writings, and the evidence of witnesses {j) 
 respecting the same may be submitted to the court and jury as evi- 
 dence of the genuineness or otherwise of the writing in dispute.' (Ic) 
 
 (f ) Garrels v. Alexander, 4 Esp. 37. .Tervis, 8 C. & P. 273. Hromage v. Rice, 
 
 Lewis V. Sapio, M. k Malk. N. P. V. 39, 7 C. & P. 548. 
 
 by Abbott, ('. J. Straiii,'er r. Searlc, 1 ij) See \{. r. Ilarvcv, 11 Cox, C. C 
 
 lisp. 14. K. r. Croiu'h, 4 ("0.x, C. C. .^.46. R. v. ^VilliaIlls, 9 Co.v, C. C. 448. 
 
 Iti:! K. r. Barlier, 1 C. & K. 434. A (A-) This clause extends by sec. 1, ' to 
 
 ■witness may prove the identity of a mark all courts of judicature, as well .riminal 
 
 from having seen the person make it on as all others, and to all i)ersons haviii;; 
 
 several occasions. Cleorgc r. Surrey, M. by law or by consent of ]>arties authority 
 
 & M. 516. to In-ar, receive, and exaniiiie oviden< i-.' 
 
 (/) Rex r. Slaney, 5 C. k P. 213. See Doe d. Jlud.l r. Suekermore, .'i A. «c 
 
 ((/) Drew V. Prior, 5 M. & Or. 2t?4. E. 702. 2 N.'V. & P. 1«5. R. v. t'ator. 4 
 
 (/() Smith r. Sainsbury, 5 C. & i'. 190. Ksp. 107. (ioodtitlo v. Rraham, 4 T. R. 
 
 Rut see Greaves r. Hunter, 2 C. & P. 497. (iurmr r. i.oni^lands. .''. \\. k A. 
 
 477. ;?;i(). .Vs to crnss-»xamining a witne.ss as 
 
 (0 Reg. V. ^Vilton, 1 K. & F. 391, to other dncument.s which were not in 
 
 BramwcU, B. Reg. v. Coleman, 6 Cox, evidence in tlie cn.se, before thi.s Art, 
 
 C. C. 1G3. Reg. V. Shepher<l, 1 Cox, see Young r. lionner, 2 M. & Rob. 53(5. 
 
 C. C. 237, Eric, .1. Griflith ?•. Williams, 1 C. & K. 51. (irithths r. Ivory. 11 Ad. 
 
 1 Cr. & .T. 47. Doe d. Perrv r. Newton. & E. 322. Hughes r. Rogers, 8 M. & W. 
 
 5A. &E. 514. 1 Nev. & "p. 4. Solita 123. Parke, B. 
 
 r. Yarrow, 1 M. & Rob. 133. Eaton r.
 
 i:i.S 
 
 Of Writ ten Evidence. 
 
 [book 
 
 V[. 
 
 ri-ciiliar 
 
 !4|>cllillg of 
 
 wonls. 
 
 Proof of 
 aucient docu- 
 ments. 
 
 Unstamped 
 documents are 
 ixdiuissilile in 
 criminal 
 cases. 
 
 Banking books 
 and copies of 
 entries in 
 s;irae wlien 
 evidence. 
 
 'I'liis sect "lull ;ill(>\vs iloc.iinciils piovod tu ItO <:,'(;liuiliO Imt \uti ro- 
 IcvMiil to tilt' issue to \n: put in for tlio purpose of comparison. (/) 
 Tlif LjeiiuiiuMiess of such (locumoiits must ho decided liy the 
 jud^e. [iti) [t seems that a person may write something in court 
 toi the express purpose of comparison under this section. A docu- 
 ment, however, written under such circumstances, cannot altoge- 
 tlier be relied on as representing the writer's ordinary liand- 
 writing. (u) 
 
 If a person lias l)ccn in the hahit of spelling a word in an un- 
 usual manner, that is some evidence that a writing containing that 
 word so spelled was written by that pei-son, the value of such evi- 
 dence depending on the degree of peculiarity in the mode of spell- 
 ing and the number of occasions on which the person has used it ; 
 and the prot)f of such habit is not confined to the evidence of a 
 witness wdio is acquainted with it from having seen the person 
 write or correspond with him, Init one or more specimens written 
 by him with that peculiar orthography (o) will be admissible ; for 
 the object is not to show similarity of the form of the letters and 
 mode of Avritiug of a particular word or words, but to prove a par- 
 ticular mode of spelling a word, "which may be evidenced by the 
 person having orally spelt it in a different way, or written it in 
 that way once or ofteuer in any sort of characters, the more fre- 
 quently the greater the value of tlie evidence. Letters, therefore, 
 written by a plaintiff, in Avhich the defendant's name was impro- 
 perly spelled Titchborne instead of Ticliborne, were held to be 
 admissible in evidence, in order to show that a libel in wdiich the 
 name was spelt in the same eiToneous manner was in fact written 
 by the plaintiff, {p) 
 
 As to the examination of skilled witnesses as to genuineness of 
 writing, see post, Book (3, ch. 5. s. 2. 
 
 A copy of a parish register purporting to be signed by ilie curate 
 eight}- years ago may be receivecl with no otlier proof of handwrit- 
 ing than the evidence of the present parish clerk, who speaks from 
 his having seen the same handwriting attached to other entries in 
 the register, {q) 
 
 Formerly a written instrument, wliich re([\nred a stamp, 
 was inadmissible, as a general rule, in criminal as Avell as civil 
 cases, unless it were duly stamped, and no parol evidence could 
 be received of its contents. But now by the 17 e^' 18 Vict. c. 83, 
 s. 27, ' every instrument liable to stamp duty shall be admitted 
 in evidence in any criminal proceeding, although it may not have 
 the stamp required bv law impressed thereon or affi.Ked thereto.' (r) 
 
 By 39 & 40 Vicf. c. 48 (the Bankers' Books Evidence Act, 
 1876), s. 3, from and after the commencement of this Act (lltli 
 August, 1876), the entries in ledgers, day books, cash books, and 
 
 (/) Bucli V. Eidgway. 1 F. & V. 'J70. 
 Cresswcll v. .lackson, 2 F. & F. '24. 
 
 [m) Cooper v. Dawson, 1 F. & F. 5r)0. 
 Bartlett v. Sinitli, 11 II. & W. 483. 
 
 (/^ See Cobbett r. Kilminster, 4 F. & F. 
 490. Arbon v. Fussell, 3 F. & F. 15'2. 
 R. V. AldridKe, 3 F. &F. 781. "Williams's 
 case, 1 Lew. 137. R. r. Tavlor, 6 Cox, 
 C. C. 53. 
 
 (o) Quare 'cacography.' 
 
 {}') Brookes v. Tichbome, 5 Exch. R. 
 929. 
 
 (q) Doe d. Jenkins v. Davies, 10 Q. B. 
 314. As to proof of ancient wiitings, 
 see cases citi d, Doe d. Mudd r. Sucker- 
 more, 5 Ad. & E. 718. 
 
 {r) See 33 & 34 Vict. c. 97, the Stamp 
 Act, 1870, s. 17, which, except in crimi- 
 nal proceedings, prevents unstamped 
 documents being given in evidence.
 
 CHAP. III. § II.] Private Documents. 439 
 
 other account books of any bank {s) shall be admissible in all 
 legal proceedings (/) as irrimd facie evidence of the matters, 
 transactions, and accounts recorded therein on proof being given 
 by the affidavit in writing of one of the partners, managers, or 
 officers of such bank, or by other evidence that such ledgers, day 
 books, cash books, or other account books are or have been the 
 ordinary books of such bank, and that the said entries have been 
 made in usual and ordinary course of business, and that such books 
 are in or come immediately from the custody or control of such 
 bank. Nothing in this clause contained shall apply to any legal 
 proceeding to which any bank whose ledgers, day books, cash 
 books, and other account books may be required to be produced 
 in evidence shall be a party. 
 
 Sec. 4. Copies of all entries in any ledgers, day books, cash 
 books, or otlier account books used by any such bank ma)"- be 
 proved in all legal proceedings as evidence of such entries without 
 production of the originals, by means of the affidavit of a person 
 who has examined the same, stating the fact of said examination, 
 and that the copies sought to be put in evidence are correct. 
 
 Sec. 5. Provided always, that no ledger, day book, cash book, 
 or other account book of any such bank, and no copies of entries 
 therein contained, shall bo adduced or received in evidence under 
 this Act, unless five days' notice in writing, or such other notice as 
 may be ordered by the court, {u) containing a copy of the entries 
 proposed to be adduced and of the intention to adduce the same in 
 evidence, shall have been given by the party proposing to adduce 
 the same in evidence to the other party or parties to the said 
 legal proceeding, and that such other party or parties is or are at 
 liberty to inspect the original entries and the accounts of which 
 such entries form a part, (v) 
 
 Sec. 7. On the application of any party to any legal proceed- .Tu.ige may 
 ings who has received notice, a judge of one of the superior courts order that 
 may order that such entries and copies mentioned in the said ^''i"?^ -^f ^^^ 
 notice shall not be admissible as evidence of the matters, transac- 
 tions, and accounts recorded in such ledgers, day books, cash books, 
 and other account books. 
 
 Sec. 9. The fact of any such bank having duly made their Proof as to 
 return to the Commissioners of Inland Revenue may be proved in status of lunk. 
 any legal proceedings by production of a copy of such return, 
 verified as having been duly made by the affidavit in writing of 
 one of the partners, or of the manager, or of one of tlic officers of 
 such bank, or by the production of a copy of a newspaper purport- 
 ing to contain a copy of such return, ])ublishcd in such newspaper 
 by the said Commissioners of Inland Revenue. 
 
 As to other points respecting the proof and effect of ])ublic and 
 private documents, since they are of rare occurrence in criminal 
 proceedings, it is thought more advisable to refer the reader to the 
 general Treatises on the Law of Evidence, than to encumber this 
 work with any notice of them. 
 
 (s) As to the meaning of this word, see in) As to Uic meaning of ' tlic court,' 
 
 sec. 1 of tlie Act in tlie appendix at the see sec. 1 of the Act, in the appendix, 
 
 end of this vol. (c) As to a judge of one of the supe- 
 
 (t) As to the meaning of legal pro- rior courts having jwwer to order an in- 
 
 ceedings, see sec. 1 of the Act, noticed in spectiun of sucli l)ook, «ic., see sec. (i of 
 
 the appendix. tlio Act, in the appendix.
 
 440 
 
 ClIAlTKPv THE FOURTH. 
 
 • (•(>XFESSIONS AND ADMISSIONS, p. 440. — OF STATEMENTS OF 
 THE ACCUSED BEFORE .MACJISTIIATES, p. 4.99 — AND OF DEPOSI- 
 TIONS, p. ."jIO. 
 
 Sec. I. 
 
 Confessions 
 sutKeient for 
 conviction 
 witliout proof 
 aliuiulc. 
 
 Of Confe.'isioiis (ind AdmUfiiovfi. 
 
 A FiiEE and voluntary confession of guilt niadu by a prisoner, 
 ^Yhether in the course of conversation with private individuals, or 
 under examination before a magistrate, is admissible in evidence 
 as the highest and most satisfactory proof, because it is fairly pre- 
 sumed that no man would make such a confession against himself 
 il' the facts confessed were not true. {<i) 
 
 A confession, if duly made, and satisfactorily proved, is sufficient 
 
 (a) Gilb. Ev. 123. Lambe's case, 2 
 l.eacli, 552, 4th edition, llv. J. Black- 
 stone, and Mr. J. Foster, entcrtaineil a 
 different o})inion. (See Fost. 243. ) The 
 former in tlie fourth volume of his Com- 
 mentaries, p. 357, says, in speaking of 
 confessions made to pensons not in au- 
 thoritj' as magistrates : ' Even in cases of 
 felony at common law, they are the 
 weakest and most suspicious of all testi- 
 mony, very liable to be obtained by arti- 
 fice, fiilse hopes, promises of favour, or 
 menaces, seldom remembered accurately, 
 or reported with precision, and incapable 
 in thrir nature of being disproved by 
 other negative evidence.' A distimtion 
 may be ])ropcrly made in the weight to 
 be attached to confessions. If a confes- 
 sion be reduced into writing, either by 
 the prisoner, or by some one else, and 
 read over to him, and it be clearly shown 
 that the confession was the spontaneous 
 and voluntary act of the prisoner, such 
 a confession would be entitled to great 
 consideration. But if a confession were 
 ]>roved by a witness, and rested upon his 
 capability of understanding what was said 
 by the prisoner, his competency to re- 
 member the very words used, and his 
 fidelity and accuracy in relating them to 
 thejuiy, it ought to be received with very 
 great caution. 'For,' as has been well 
 obsen"ed (Greenleafs End. 247\ 'be- 
 sides the danger of mistake, from the 
 mis;ipprehension of witnesses, the misuse 
 of words, the failure of the party to ex- 
 press his own meaning, and the infirroity 
 
 of memor}', it should be recollected that the 
 mind of the ]irisoner himself is oppressed 
 by the calamity of his situation, and that 
 he is often influenced by motives of hope 
 or fear to make an untrue confession. 
 The zeal, too, which so generally prevails 
 to detect offenders, especially in cases of 
 aggravated guilt, and the strong disposi- 
 tion in the persons engaged in pursuit of 
 evidence to rely on slight gi'ounds of sus- 
 ])icion, which are exaggerated into suffi- 
 cient proof, together with the character of 
 persons necessarily called as witnesses in 
 cases of secret and atrocious crime, all 
 tend to impair the value of this kind of 
 evidence, and sometimes lead to its re- 
 jection where in civil actions it would 
 have been received.' The weighty obser- 
 vation of Jlr. J. Fester is also to be kept 
 in mind, that 'this evidence is not, in the 
 ordinary course of things, to be disproved 
 by that sort of negative evidence by which 
 the proof of ]dain facts may be and often 
 is confronted.' Fost. 243. 'Mr. B. Parke 
 lias on several occasions observed that 
 ' too great weight ought not to be attached 
 to evidence of what a jwrty has been 
 supposed to have said ; .as it very fre- 
 quently happens, not only that the wit- 
 n-'ss has misunderstood what the party 
 has said, but that by unintentionally 
 altering a few of the expressions really 
 used, he gives an effect to the statement 
 completely at variance with what the 
 partv reallv did say.' Earle r. Picken, 
 5 C." & P. 542, note." Rex v. Simons, 
 C. & P. 540.
 
 CHAP. IV, § 1.] Confessions and Admissions. 441 
 
 filoue to waiTant a conviction, witliout any corroborating evidence 
 aliunde (6) 
 
 A confession is obviously not conclusive evidence against a pri- of the effect 
 soner, and when it involves matter of law as well as matter of fact, of confessions. 
 is to be received with more than usual caution. Thus on an 
 indictment for sotting tire to a ship Avith intent to defraud Green- 
 fell and Eddy, being part-owners of the ship, a declaration of the 
 prisoner that Greenfell and Eddy were part-owners was received 
 in evidence ; but it was objected that the bill of sale, under which 
 Greenfell and Eddy claimed, was invalid in point of law ; and it 
 was held that, if by reason of the invalidity of the document evi- 
 dencing the transfer of their shares, their legal title to them could 
 not be established, the declaration of the prisoner could not be 
 relied upon for that purpose, (c) So where, on an indictment for 
 bigamy, the prisoner had confessed the first marriage, but it ap- 
 peared that the marriage was void for want of the consent of the 
 guardian of the woman, the prisoner was acquitted, (d) 
 
 (a) Confessions must be free and voluntary, p. 441. 
 
 (b) What promises and inducements will exclude confessions, 
 p. 442. 
 
 (c) What threats and menaces will do so, p. 456. 
 
 (d) Confessions made after former one, unduly obtained ; or after 
 inducements once made, p. 458. 
 
 (e) As to persons whose inducements will exclude confessions, 
 p. 463. 
 
 (/) Confession elicited by questions, p. 472. 
 
 {(j) When prisoner's examination on oath evidence, p. 473. 
 
 (A) Discoveries and acts done in consequence of confessions un- 
 duly obtained, p. 482. 
 
 (i) Against whom confessions and statements evidence, p. 485. 
 
 (j) Proof of confessions and statements — When onus on prose- 
 cutor to contradict same, p. 491. 
 
 (a) Confessions must he. free and voluntary. 
 
 But a confession, in order to be admissible, must be free and Must he free 
 voluntary : that is, must not be extracted by any sort of threats or iuni voluntarr. 
 
 (//) Wlicfilint,''s ease, in note, 1 Leach, C. C. 2/0, where a roblioiy had been 
 311. Kcx t'. Ekhidge, R. & K. C. C. R. committed on a moonlight night, Cres.s- 
 440. Rex r. Falkner, ibid. 481. Rex v. well, J., left the case to the jnry on con- 
 White and liangdon, R. & R. 508. Rex fessiona of the inisoner, though the 
 V. Tippit, R. & R. 509. Reg. v. P>uiton, prosecntoi swore the prisoner was not one 
 Dears. C. C. 282. Rex r. Tntls, 5 C. k P. of the men who robbed liim. Tiie re- 
 167. In Rex v. Edgar, Monmouth Spr. mark on this case is that the prosecutor 
 Ass. 1831, MSS. C. S. G., the prisoner ?«/(///< be in error; the prisoner must 
 was indicted for obtaining money of a know whether he was guilty or not. In 
 friendly society by false ])retenccs ; the the United .States the prisoner's confes- 
 rules of the .society had not been enrolled, sion wlien the cmyus delicti is not other- 
 but the prisoner, who was a member of wise pioved, has been held insuflicient for 
 the society, had acted under them, and his conviction. C'.reenleafs Kvid. 251, 
 it was contended tliat he had thereby ad- (iuild's case, 5 Halst. 1(33, 185. Long's 
 nutted their validity, and the position in case, 1 Ilayw. 524 (455). 2 Hawk. P. C. 
 the text was cited as a stronger decision ; c. 46, s. 36. 
 
 on which Patteson, J., said 'Could a (c) Rex v. Philp, R. & M. C. C. R. 
 
 man be convicted of murder on his con- 263. 
 
 fcssion alone, without any proof of the (d) Anonymous, 3 Stark. Ev. 894, 
 
 Kersou being killed ? I doulit wliether note (wi), cor. Le Blanc, J. 
 e could.' lu Reg. v. Sutcliffe, 4 Cox,
 
 442 Of Evidence. [book vt. 
 
 viulfiicr, ii(ii- (il.t:iiiiiil by <i iiy direct or implied promises, however 
 sli^dit, nor hy tla- exertion of iiriy improper influence, (e) ])ecauKe 
 iinder sneh circumstances tin.' ])arty may have l)een influenced to 
 say what is not true, and lh<; supposed confession cannot safely be 
 acted upon. ( /") 
 
 Tlie object of the rule relatin;4 to tht; exclusion of confessions 
 is to exclude all confessions which may have been procured by the 
 prisoner being led to suppose that it will be better for him to admit 
 liimself to be guilty of an offence which he really never com- 
 mitted. {(J) In determining, therefore, whether a confession Ijc 
 admissible or not, ' the only proper cpicstion is, whether the induce- 
 ment held out to the prisoner was calculated to make his confession 
 an untrue one.' (//) 
 
 A confession can never be received in evidence, where the pri- 
 soner has been influenced by any threat or promise ; for the law 
 cannot measure the force of the influence used, or decide upon its 
 efiect upon the mind of the prisoner, and, therefore, excludes the 
 declaration, if any degree of influence has been exerted, (i) It is 
 a question for the court, and not for the jury, to decide whether, 
 under the particular circumstances of the case, the confession be 
 admissible, {j) 
 
 The general principle on which the decisions on this subject 
 seem to have proceeded seems to be this : that if, under the cir- 
 cumstances, there be reasonable ground for presuming that the 
 disclosure was made under the influence of any promise or threat 
 of a temporal nature, the evidence ought not to be received, {k) 
 
 (h) What 'promises and inducements ivill exdude confessions. 
 
 Promises and As to what shall be considered as a promise or inducement, 
 
 iuduceiuents. saying to the prisoner that it would be better for him if he did 
 
 confess is sulEcient to exclude the confession, {kli) Where, on an 
 
 indictment for robbery, a witness stated that he had said to one of 
 
 (f) It is a mistaken notion that qv\- was alive. IbiJ, note (a), 
 
 dence of confessions obtained by promises (/) Per Lord Cam|ibell, C. J., Reg. r. 
 
 or threats are to be rejected from regard Scott, D. &: B. 47. 
 
 to public faith. Confes.sions arc received (cj) Per Littledale, J., in Eex r. Court, 
 in evidence, or rejected as inadmi.ssible, 7 C. & P. 4S6, post, p. 39G. Hut in Reg. 
 under a consideration whether they are v. Baldry, 2 Den. C. L". 430, Lord Camp- 
 or are not entitled to credit. A free bell, C. J., said, 'The reason is, not that 
 and volunt^iry confession is deserving the the law .supposes that the statement will 
 highest credit, because it is presumed to be false, but that the prisoner has made 
 tlo^v from the strongest sense of guilt ; the confession under a bias, and that, 
 and therefore it is admitted as proof of therefore, it would be better not to sub- 
 file crime to which it refers ; but a con- mit it to the jury.' But see Lord Camp- 
 fession forced from the mind by the bell's dictum. Keg. v. Scott, s\ipra. 
 ilatteiT of hope, or the torture of fear, (/() Per Coleridge, J., in Rex r. Tho- 
 comes in so questionable a shape, when mas, 7 C. & P. 345. 
 it is to be considered a.s the evidence of (/) 2 Stark. Ev. 36. 
 guilt, that no credit ought to be given to (j^ Rex r. Xute, 2>ost, p. 458. In Beg. 
 it ; and therefore it is rejected. "Warick- r. Garner, 1 Den. C. C. 329, Erie, J., 
 shall's case, Eyre and Nares, BH., 1 Leach, saiil. ' In every case it is for the judge to 
 263. Three 'men were tried and con- decide whether the words were used in 
 vieted for the murder of Mr. Harrison, of such a manner, and under such circum- 
 Campden, in Gloucestershire. One of stances, as to induce the prisoner to make 
 them, under the promise of panlon, con- a confession of guilt, whether such con- 
 fessed himself guilty of the fact. The fcssion were true or no.' 
 confes-sion, therefore", was not given in (h) 2 Stark. Ev. 36. 
 evidence against him, and a few years (kk) 2 East, P. C. c. 16, s. 94, p. 659. 
 afterwards it appeared that ilr. Harrison
 
 CHAP. IV. § l] Confessions and Admissions. 443 
 
 the prisoners, ' You bad better spHt, and not snffer for all of tbem,' 
 tbe statement of tbe prisoner was rejected. (/) One of a firm wbo 
 employed tbe prisoner, baving called bim up into tbe private 
 counting bouse of tbe firm, in tbe presence of anotber of tbe firm, 
 and two oflficers of j)olice, said, ' I tbink it is rigbt tbat I sbould 
 tell you that, besides being in the presence of my brother and 
 myself, you are in tbe presence of two officers of the police ; and 
 I should advise you tbat to any question tbat may be put to you, 
 you will answer truthfully, so that if you have committed a fault, 
 you may not add to it by stating what is untrue ; ' and having 
 shown a letter to bim, Avbich he denied to have written, added, 
 ' Take care ; we know more than you tbink we know.' Tbe pri- 
 soner thereupon made a confession. Held, tbat these words did 
 not import an inducement or threat, and tbat evidence of the con- 
 fession was admissible, (/u) 
 
 If a person advise a prisoner to be sure to tell tbe truth, and Advising a 
 he then makes a statement, such statement is admissible, on tbe prisoner to bo 
 ground that such advice cannot be supposed to induce tbe prisoner sure to tell the 
 to confess that he is guilty of a crime of which be is really 
 innocent, {n) 
 
 Upon an indictment for murder, it appeared that the prisoner, 
 wbo was a boy of tbe age of fourteen, was taken into custody by 
 Mr. Wragg, not a constable, and on the same night was in the par- 
 lour of tbe inn, to which be was taken ; several persons, neighbours, 
 but no constable, were in the room, and bad been asking him 
 questions about the children, whom he was charged with drown- 
 ing. One Clark, who was present when Wragg took tbe prisoner 
 up, and who was not a constable, stated, ' I told bim to kneel 
 down and tell tbe truth. Wragg took bim into Adams' parlour, 
 and began to question bim bow tbe children came to get into the 
 pit ; whether they fell in, or were put in ; he said he sbould not 
 tell anything about it. Wragg asked bim if lie Avould tell any 
 one else, if he would go out of tbe parlour ; the prisoner said 
 nothing ; Wragg then went out. I said to the prisoner, " Now 
 kneel you down by the side of me, and tell me the truth." I be- 
 lieve this was tbe first thing. He did kneel down. I said, I was 
 going to ask him a very serious question, and I hoped be would 
 
 (}.} Rex r. Thomas, 6 C. & P. 3.53, ing, that they hold out an iiuUicenR'iit or 
 Patte-son, J. By .such a statement as that threat witliin the mle that excludes con- 
 made by the witness the prisoner might fessions, under such circumstauces. It is 
 be induced to suppose that he would bo sufficient to say that those words have 
 more menii'iilly ilcalt witli if he con- not been used on this occasion ; and that 
 fcssed, and that he might therefore be the words used appear to me to import 
 induced to confess himself guilty of an advice given on moral grounds, and not 
 offence ho never committeil. See the to infringe upon the rule of law prohibit- 
 Keporters note, ibid. There arc many ing a threat or inducement in these 
 similar cases to the above one : Jloody's cases.' 
 
 case, 2 Crawf. & 1). C. (.'. Joy, 12. Hex (n) 1!. v. t'om-t, 7 V. k W 486 Litlle- 
 
 V. Walkley, 6 C. & P. 175. Rex c. JlilLs, dale, J. R. r. Holmes, 1 (_' & K 043 . 
 
 6 C. & P. 11«, and MSS. C. S. (!. Rex R. r. Jarvis, 37 L. .1. M. (". l,j,rr Kellj',' 
 
 V. Shepherd, 7 C & P. [)79. R. v. Kings- C B. ; R. r. Sleeman, Dears. C. C. 2-19 
 
 ton, 4 C. & P. 387. where the words were, ' Don't run vour 
 
 (m) R. V. Jarvis, 37 L. J. M. ('. 1, cl soul into more sin, but tell the triith ' 
 
 per Kelly, C. B., ' As to the wonis "you and it was held there was no threat or in- 
 
 had better " referred to in the argument, ducement. An cxhortition to speak the 
 
 there are many cases in which those truth ought not to exclude a confession, 
 
 words have occurred, and they seem to See /xv Eric, J., R. v. Moore 2 Den. C. 
 
 have acquired a sort of technical mean- 0. 522.
 
 44 4 ( >/ /•'I'ldoicc. [book VI. 
 
 hll IMC the tnitli ill tlic uri'sciice of tlio Alriiii,'lily. T then said, 
 " |)i<l tliese chiNhtii t';ill into the pit ?" He said he pushed one in 
 with one foot, .11 id Hll (ithci witli the other, hut not purposely.' 
 Mr, Mduldcu asked hiwi if he had any malice or revenge ; he said, 
 No SuhscM(U('ntly tu this, the son of the innkeeper stated that 
 next day the prisoner said he would tell liiiii all ahout it. He 
 neither promised nor threatened him. The prisoner then made 
 a statement to him, which was given in evidence. Otiier decla- 
 rations also were given in evidence. An examination of the pri- 
 soner, who could not write, wa.s put in ; it began, ' W. Wild l>eing 
 cautioned. Sec.,' and the evidence l)eing read over to him, said, 
 ' I can give no other acconnt than I have already given,' &c. (o) 
 The prisoner having been found guilty, upon a case reserved as 
 to the admissibility of the evidence, the judges present were una- 
 nimous that the confession was strictly admissible, but they mucli 
 disapproved of the mode in which it was obtained, (jj) The mother 
 of a little boy in custody on a charge of attempting to obstruct a 
 railway train, said to him and another little boy in custody also on 
 the same charge, in the pre.sence of the mother of the latter and of 
 the policeman, ' You had l)etter, as good boy.s, tell the truth,' where- 
 upon both boys confessed. Held, that the confession was avlmis- 
 sible. (q) 
 Promise to be A confcssiuu induced by saying, ' I am in great distress about my 
 f.Hvoumblc, &e. irons ; if you will tell me where they are, I will be favourable to 
 you,' cannot l)e given in evidence, (r) 
 
 Where it appeared, on an indictment for larceny, that the pri- 
 soner, being in the custody of a constable, the latter said to the 
 prosecutor, ' You must not use any threat or promise to the pri- 
 soner ; ' and immediately after this, the prosecutor said to the 
 prisoner, ' I should be obliged to you if you would tell us what you 
 know alDOut it ; if you will not, we, of course, can do nothing ; I 
 shall be glad if you will.' The confession was held inadmissible ; 
 Patteson, J., saying, ' I think this is a distinct promise ; what could 
 the prosecutor mean by saying, that if the prisoner would not tell, 
 they could do nothing, but that if the prisoner did tell, they would 
 do something for him ? ' (.-^) 
 
 ((*) Tlie statciiieiit is given at length in out by a person witliout authority, as it 
 the report, a.swell as tlie statement inadi- was held ont hy a person present at the 
 to the innkeeper's son, Imt they are omit- apprehension, and wlio was acting in con- 
 ted, as nothing turned upon their ion- ourrcnce with the party who apprehended 
 tents. C. S. G. him, and they were keeping the prisoner 
 
 {p) Ee.x r. 'Wild, E. k'M. C. C. R. 452. in custody, no constable being present. 
 
 The conviction was atlirmed, but tlie C. S. G. 
 
 Erisoner was transported for life. Lord (q) R. v. Reeve, 41 L. J. M. C. 92 
 
 lenman, C. J., Vnughan, J., Bolland, B., R. r. Parker, L. & C. 42. But see ^t 
 
 and Bosanquet, .1., were not present at Maule, J., in R. r. Garner, 1 Den. C. C. 
 
 the meeting of the judges. The grounds .329, R. v. Baldry, 2 Den. C. C. 430 ; per 
 
 of this decision are not stated in the re- Pollock, C B., R. r. Bale, 11 Cox, C. V. 
 
 port ; but it should seem that the case 686. 
 
 may well be .supported on the ground (/) Cass's ca.se, 1 Leach, 293, note {a). 
 
 that the words addressed to the prisoner {a) Rex v. Partridge, 7 C. & P. 551. 
 
 had no tendency whatever to induce him Dr. Oreenleaf, Evid. 256, after citing 
 
 to make a false statement, but, on the this case, and Guild's case, past, p. 460, 
 
 contrary, were a most solemn adjuration observes, ' It is extremely difficult to re- 
 
 to speak the truth. The decision seems concile these and similar cases with the 
 
 fully warranted by the princii>le on which spirit of the rule as expounded by Eyre, 
 
 Rex r. Gilham, ]K>st, rests. The decision, C. B., in Warickshairs case, uiifc, p. 442, 
 
 however, could hardly be supported on note {c) ; the dift'erence is between oon- 
 
 the ground that the inducement was held fessions made voluntarily, and those
 
 CHAP. IV. § I.] Confessions and Admissions. 445 
 
 Where the prosecutor asked the prisoner, on finding him, 
 for the money he, the prisoner, had taken out of the prose- 
 cutor's pack, but before the money was produced, said, ' he 
 only Avanted his money, and if the prisoner gave him that, 
 lie might go to the devil if he pleased ; ' upon which the pri- 
 soner took U.S. 6j'?. out of his pocket, and said it was all he 
 had left of it ; a majority of the judges held that the evidence was 
 inadmissible, {t) Where also an attorney, who was endeavouring 
 to discover some burglars for the purpose of prosecution, said to 
 the prisoner, who had gone to him for the purpose of making 
 some statements relating to the burglary, ' I dare say you had a 
 hand in it ; you may as well tell me all about it ; ' it was held that 
 this excluded a statement then made, (a) So where a prisoner 
 being in custody said to the officer who had the charge of him, 
 ' If you will give me a glass of gin 1 will tell you all about it,' Confession ob- 
 and two glasses of gin were given to him, and he made a confes- t^iined by gift 
 sion of his guilt ; Best, J., considered it as very improperly ob- ° ^ ^ ° ^^"' 
 tained, and inadmissible in evidence, {v) But where a prisoner Confession 
 made a statement to a constable in whose custody he was, but he ^^'^^u drunk, 
 Avas drunk at the time ; and it Avas imputed that the constable 
 had given him liquor to cause him to be so, and it Avas objected 
 that Avhat the prisoner said under such circumstances was not ad- 
 missible ; Coleridge, J., said, ' I am of opinion, that a statement , 
 being made by a prisoner while he Avas drunk, is not, therefore, 
 inadmissible against him, and that, to render a confession inadmis- 
 sible, it must either be obtained by hope or fear. This is matter 
 of observation from me, uj^on the Aveight that ought to attach to 
 this statement, Avhen it is considered by the jury.' {lu) 
 
 "forced from the mind b\' the flattery of 
 liope, or by the torture of fear." If the 
 party has made his own calculation of the 
 advantages to be derived from confessing, 
 and thereupon has confessed the crime, 
 there is no reason to say that it is not a 
 voluntary confession. It seems that in 
 order to exclude a confession, the motive 
 ol' hoi)e or fear must be directly apjdied 
 bj'a third person, and must be sutticient, 
 in the judgment of the court, so far to 
 overcome tlie mind of the prisoner as to 
 render the confession unworthy of credit. ' 
 In Kex V. Green, 6 C & 1'. (J55, 'i'aunton, 
 .1., said, ' 1 take it no man ever makes a 
 confession without i>roposing to himself 
 in his own mind some advantage to be 
 derived from \\,' imst, ji. -118. 
 
 (0 Jones's case, R. & \{. 152, but see 
 Ke.x V. firiflin, ibid. 151, ihkI, p. 449. 
 
 {u) Keg. V. Croydon, 2 Cox, C ('. 67. 
 Rogers. (^C., after consulting Piatt, ]?. 
 
 {v) Rex V. iSextou, MS. Ch'etw. lUirn. 
 tit. ConJ'caaion, j). lOSti, Doyl. i^ Wms. 
 The authority of this case ha.s been 
 questioned in several ]>o()ks. Deac. Cr. 
 Law, 424, Rose. Cr. Ev. 37, Joy, 17, 
 and it .seems very justly. In the first 
 jilace the oiler to confess was volunteered 
 on the part of the prisoner ; secondly, 
 there was no promise or threat at all used 
 by the constable, nor was tlie prisoiu'r in 
 any way hd to believe that by confessing 
 
 he would escape from the charge, or bo 
 let out of custody ; thirdl}', there was no 
 inducement to state onvthing but tho 
 truth. In 1 Burn's J. "Doyl. & Wms. 
 1081, note {ii\ it is said, ' The authority 
 of this decision seems doubtful ; for it is 
 not every hope of favour held out to a 
 prisoner that will render a confession 
 afterwards made inadmissible ; the pro- 
 mise must have some reference to his 
 escape from the charge.' 
 
 {w) Rex V. Spilsbury, 7 C. & P. 187. 
 In a note to this ca.se, 1 I'liill. Ev. 465, it 
 is observed, ' The facts of the case as rc- 
 jiorted do not wairant the marginal note, 
 which is as I'ollows : — " Sciiili/c, if a con- 
 stable give him (the prisoner^ licpior to 
 make him drunk, in tlie hope of liis say- 
 ing something, that will not render the 
 statement inadmissible, but it will Iw; 
 matter of observation for the judge in 
 his summing up." It is not to be in- 
 ferred from the case that a confession — 
 so immorally, not to say «riminally, ex- 
 torted — woidil be received.' Tlie princi- 
 ple, however, on which thedecision turned 
 would seem to warrant the marginal note, 
 as the mere giving li({Uor without any in- 
 ducement in words could not operate as 
 an inducement either by exciting hope of 
 escape or fear of pnni-hment. It is to 
 be oliserved, also, that in all the cases 
 where confessions liave been excluded
 
 446 
 
 Iniliircnifiil |c 
 iiii|ili>-iitu 
 iiiKillicr 
 liri.Hoiioi'. 
 
 TnllinK pii- 
 '■iii-r wliiit lie 
 : lys iii:iy lio 
 iiscil ill his 
 fjivoiir. 
 
 Of I'lndfin'P 
 
 [I'.OOK VI, 
 
 Telling a pri- 
 soner tbat 
 what he ilid 
 say would be 
 taken down 
 and used 
 aJ,'aiu^5t him 
 will not ex- 
 clude a st^itc- 
 luent. 
 
 If an iiiiliiit;iii(iit btj liehl nut to one prisoner to make a state- 
 niiiil, wliii-li iiiijilicates iinotlicr j)ri.soncr, such statemeut is iiuul- 
 niissihlc ; Ibr it can only be used as evidence a;L(ainst the prisoner 
 who made it, and thi-n it is ovi<hMic(! obtainoil by an induce- 
 ment. (./•) 
 
 A prisoner, when before a ma^dstrate, was tolil by the magistrate's 
 ch'rk not to say anything to prejudice liimsclf, 'as what he said 
 would be taken down, and would be used for him or against liim at 
 his trial.* Coleridge, J., ' This iz an inducement, and it was held 
 out by a person in authority. I am of opinion that the prisoner's 
 statement cannot be given in evidence. I cannot conceive a more 
 direct inducement to a man to make a confession than telling 
 him that what he says may be used in his favour at the 
 tiial.' {y) So where tlie constable who apprehended the pri- 
 soner said to him, ' What you are charged with is a very heavy 
 otlence, and you must be very carefid in making any .statement to 
 me or anybody else that may tend to injure you, Ijut anything you 
 can say in your defence we shall be ready to hear, and send to 
 assist you ; ' a statement thereon made was rejected, {z) So where 
 the constable told the prisoner, ' You are apprehended on a serious 
 charge ; take care tliat you do not say anything to injure yourself ; 
 but if you can say anything in your defence, we are willing to hear 
 it, and to send to any person to assist you ;' a statement tliereon 
 made was r€\jected. ((() 
 
 Where a police officer had told a prisoner that whatever he said 
 would be u.sed against him ; it was held that a statemeut thereon 
 maile was admissible, {h) So where a police officer told the pri- 
 soner, before he made a statement, ' to be careful, it would be used 
 against hiin on his trial if committed by the magistrates ; ' it was 
 held that the statement was admissible, (c) 
 
 Those cases were reviewed in the following case. Where, on an 
 indictment for murder, a police constable said, ' I went to the 
 prisoner's house. I saw the prisoner. I told liim what he was 
 charged with. He made no reply, and sat with his face buried in 
 his handkerchief. I believe he was crying. I said he need not say 
 anything to criininate himself ; what he did sa.y vjoidd be taken 
 down and. used as evidence against him.' Objection wa-s made 
 that what the prisoner then said was inadmissible. Lord Camp- 
 bell, C. J., thought that, although the caution of the constable 
 differed from that directed by the 11 &, 12 Vict. c. 42, s. 18, to be 
 given by the justice to the prisoner in the word ' will ' instead of 
 ' may,' it did not amount to any promise or threat to induce the 
 prisoner to confe.ss ; it could have no tendency to induce him to 
 say anything untrue ; and that in spite of it, if he did afterwards 
 confess, the confession must be considered voluntary. His lordship, 
 therefore, allowed the witness to give evidence of what the prisoner 
 
 there has been an auticipatiou of bcnctit 
 or injuiy after the coulossing or nou- 
 rontVssinK. ^Vl^cre liquor is given the 
 Ixnclit (if it can be called any) is received 
 already, anil nothing fmther is iu expecta- 
 tion. I". S. G. 
 
 (x) Rex V. Enock, 5 C. & P. 539. 
 
 (ij) Keg. V. Drew, 8 C. & P. 140. 
 
 (;) Reg. I'. Morton, 2 M. & Rob. 514, 
 
 Coleridge, J. , aj^proving of Reg. v. Drew. 
 
 (a) Keg. V. Ilornbrook, 1 Cox, C. C. 
 54, Coleridge, J. 
 
 {b) Keg. v. Chambers, 3 Cox, C. C. 02, 
 Kolfe, B. 
 
 U) Reg. r. Attwood, 5 Cox, C. C. 322, 
 Erie, J. But see R. r, Toole, 7 Cox, 
 C. C. 244, Irish.
 
 CHAP. IV. § I.] Confessions and Admssions. 447 
 
 then said, which amounted to a confession of his guilt ; and upon 
 a case reserved, after argument on behalf of the prisoner, the 
 judges were unanimously of opinion that the confession was pro- 
 perly received. Lord Campbell, C. J., ' I adhere to the opinion which 
 I formed at the trial. The rule is, that if there he any ivorldlij 
 advantage held out, or any harm threatened, the confession must 
 he excluded. The reason is, not that the law supposes that the 
 statement will be false, but that the pi'isoner has made a confes- 
 sion under a bias, and that therefore it would be better not to 
 submit it to the jury.' Pollock, C. B., 'A simple caution to the 
 accused to tell the trutJi, if he says anything, it has been decided 
 not to be sufficient to prevent the statement made being given in 
 evidence ; (d) and although it may be put that where a person is told 
 to tell the truth he may possibly understand that the only thing 
 true is that he is guilty, that is not what he ought to understand. 
 He is reminded that he need not say anything, but if he says any- 
 thing, let it be true. But where the admonition to speak the i 
 truth has been coupled with any expression importing that it 
 would he hetter for liiro-tjQjIojiO, it has been held that the confes- 
 sion was not rec^vable, the objectionable words being that it 
 luould be hetter to speak the truth, because they import that it 
 would be better iox-him^.to say something, (e) The true dis- 
 tinction between the present case and a case of that kind is, that 
 it is left to the j^risoner as a matter of perfect indifference whether 
 he should open his mouth or not.' (/) 
 
 After the prisoner had been committed on a charge of murder, a Oath not to 
 fellow-prisoner said to him, ' I wish you would tell mc how you j^^'^^^^ '^°^' 
 murdered the boy ; — pray split.' The prisoner said ' Will you be 
 upon your oath not to mention what I tell you ? ' The other pri- 
 soner went upon his oath, that he hoped, if he told, that he might 
 never stir out of that place again. The prisoner then made a 
 statement. It was held that this was not such an inducement as 
 to render the statement inadmissible, and that, although such oaths 
 were very wrong and wicked, still they were not binding ; an<l that 
 every person, except counsel and attorneys, Avere bound to reveal 
 what they might have heard, (g) 
 
 Where a person said to a prisoner that he might say what he had 
 to say to him, for it should go no further, and the prisoner there- 
 upon made a statement, it was held that it Avas receivable in evi- 
 dence, (h) 
 
 Where a prisoner and his wife were both in custody on a charge rromise that 
 of receivinn- bank notes, but in separate rooms, and a person said piisoner 
 
 1 • / T 1 -n , 11 1 ii ± • -11 n? 1 .shoulil sec his 
 
 to hmi, I hope you will tell, because the prosecutrix can ill attorcl ^^.j^^ ^^. 
 to lose the money;' and the constable said, 'If you will tell 
 where the property is you shall see your wife ;' Patteson, J., said, 
 ' I think that this is not such an inducement as will exclude the 
 evidence of what the prisoner said : it amounts only to this, that if 
 he would tell whore the money was he .should sec his wife.' And 
 the statement made by the prisoner was received, (i) 
 
 (d) Rex c. Court, 7 C. & V. 486. Keg. can no longer be considered authorities. 
 ('. Holme-s, 1 ('. & K. 248. ('/) Hex r. Shaw, « C. & V. 372, Tatte- 
 
 (c) Kfg. r. Gamer, 1 Den. C C. 329. son, J. 
 
 (/) Keg. r. 15aldrv, 2 Den. C. C. 430. {Ji) K. r. Tliomas, 7 C. & T. 345. 
 
 Keg. V. Furlcy, and Keg. r. Harris, were (/) K. r. Lloyd, 6 C. & P. 393. 
 
 cited and disapproved of in this case, and
 
 4 48 
 
 Of E ride nee. 
 
 [book VI. 
 
 Coil (Vision 
 iiiaclf iiiider 
 inistaki'ii m\i- 
 liositiou. 
 
 An iiiilucc- 
 im-iit to one 
 |iri.-Minci- will 
 Milt cxclmlc 
 a i-onfcssioii by 
 iiiiotlier. 
 
 So wlifi(3 a constable told a piisoii«;r tliat liis father liad heen 
 cliai-;,a'»l with iniinler. Me had been previously cautioned n(jt 
 to criminate liiniselt", as the witness would bring it all against him. 
 The prisoner said he hoped no one would be charged with the 
 muriler but himself, and then made a confession. Doherty, C J., 
 havinj; conferred with Torrens, J., admitted the confession, ob- 
 serving that, although such announcement was likely to act upon 
 the feelings of the prisoner, he would not be warranted on that 
 groutul in refusing to receive it. (/) So where the prisoner wa.s 
 indicted for concealing the birth of her child, a medical witness 
 .said that he examined the prisoner in custody, and found that her 
 breasts were full of milk, and asked her whether .she had not 
 recently had a child, and added that if she refused to tell he would 
 examine her person more closely ; the prisoner then said, ' It is 
 unnecessary to examine me, for I had a child.' Torrens, J., ad- 
 mitted this confession, on the ground that the witness was endea- 
 vouring to ascertain a fact within his own province, and not 
 inconsistent with the prisoner's innocence, and that the declara- 
 tion of the witness was not a threat within the rule which excludes 
 confessions. {I') 
 
 Upon an indictment for housebreaking, it appeared that the pri- 
 soner being in the shop of the prosecutor, handcuffed, some recom- 
 mendations to confess had been, in the absence of the prosecutor, 
 made to him by the person "who had been left in charge of the 
 house ; and the prisoner said, that if tlie handcufifs were taken otT 
 he would tell where he put the property. He had expressed 
 doubts whether, if he told where the property was, he could rely on 
 being leniently dealt Avith, and, after the prosecutor came in, he 
 was told that they would do all they could for him. It was objected 
 that the statement was inadmissible, as it was made under duress, 
 and to deliver himself from the confinement. Bosanquet, J., ' I 
 do not think there is anything in the objection, but I will take a 
 note of it.' Taunton, J., ' I take it no man ever makes a con- 
 fession voluntarily, without proposing to himself in his own 
 mind some advantage to be derived from it.' The statement was 
 received. {I) 
 
 It is no objection that the confession was made under a mistaken 
 supposition that some of the prisoner's accomplices were in custody : 
 not even though some artitice has been used to draw him into that 
 su})positiou. {m) 
 
 Jacobs and Tarrant, two apprentices, were indicted for stealing 
 from their master, who, suspecting Tarrant, told him that if he did 
 not confess he would send for a constable. Jacobs could hear 
 what was said. Tarrant said he had robbed the prosecutor, and 
 that Jacobs had robbed him too. Jacobs said, ' You are a liar ; I 
 liave onl>- taken one handkerchief.' It was held that the statement 
 of Jacobs was admissible ; for an inducement or threat oft'ered to 
 one per-son cannot atlfect the admissibility of a confession made by 
 another, although that other be present when the inducement is 
 otfered. (n) 
 
 \j) Nol.iu's case, Jov, It!. 1 Ciawf. i: 
 iMx, (.•. C. 74. 
 
 Kk) Caiii'.s case, Joy, lt>. 1 Crawl". & 
 l»ix, C. L". 37. 
 
 (/) Rex r. Giccii, 6 C. & P. 655. The 
 
 stutenient did not amount to a confession, 
 and Bosanijuet, J., desired the jnry to lay 
 it out of their consideration. 
 
 (m) Kex V. 15urlev, 1 Phill. Ev. 406. 
 
 (//) Keg. r. Jacobs, 4 Cox, C. C. 54.
 
 CHAP. IV. § I.] Confessions and Admissions. 
 
 In a case (o) where the prisoner, while in gaol, asked the 
 turnkey if he would put a letter into tlie post for him, and, after 
 his promising to do so, the prisoner gave him a letter addressed to 
 his father, and the turnkey, instead of putting it into the post, gave 
 it to the visiting magistrates of the gaol, who gave it to the prose- 
 cutor ; Garrow, B., held that the letter so obtained was admissible 
 in evidence, and said he remembered making an objection, when at 
 the bar, to evidence under the same circumstances before Gould, 
 J., who overruled it. 
 
 A confession made by the prisoner with a view and under the 
 hope of being thereby permitted to turn king's evidence, has been 
 lield inadmissible, (p) On an indictment for murder, it appeared 
 that the prisoner was taken into custody on the charge on the 2nd 
 of December, and that on the Uth he made certain statements, 
 which were sought to be given in evidence. To prove one of these 
 statements, a policeman was called, who said that he held out no 
 inducement to the prisoner to make any statement, nor did he 
 know that any one else had down to the 11th of December, 
 when the statement was made ; but on the Gth of December he 
 knew that a reward of 100/. had been offered by the government, 
 accompanied by a statement that the Secretary of State would re- 
 commend an accomplice, not being the person who actually com- 
 mitted the murder, for a pardon, but the witness could not state 
 that this had come to the knowledge of the prisoner ; and Cress- 
 Avell, J., allowed this statement to be given in evidence. In a later 
 part of the same case a policeman stated, that soon after the pri- 
 soner had been taken into custody, and before the Gth of December, 
 the prisoner requested that he would let him know if any reward 
 shoidd be offered, or any papers published concerning the murder, 
 and that he would bring any such papers to him as soon as they 
 were printed. On the Gth of December, it was generally known 
 that the Secretary of State had offered a reward and a promise of 
 free pardon to any of the offenders, except such as had struck 
 the blow, and on the 13th the witness gave the prisoner one 
 of the printed handbills, which offered 100/. reward to any 
 person v/ho should give such information as should lead to the 
 discovery and conviction of the murderers, and ' a pardon to an 
 accomplice, not being the person who actually committed the nuu-- 
 der, who shall give such information as shall lead to the same 
 result.' Cresswell, J., after consulting Patteson, J., held that a 
 statement made by the prisoner to the witness on the lltli of De- 
 cember was receivable. In a still later part of the same case, it 
 appeared that on the evening of the 10th of December, the pri- 
 soner said tliat he saw no reason why he should snfter for the crime 
 of another, and as government had otfered a free pardon to any one 
 of tlie parties concerned, who had not struck the blow, he would 
 tell all he knew about the matter. Cresswell, J., ' It now appears, 
 with sufficient clearness, that the prisoner in making the statements 
 
 449 
 
 Letter from 
 the ijrisoner iu 
 gaol. 
 
 Confession 
 with a view to 
 being admitted 
 as a witness, 
 and receiving 
 a pardon. 
 
 Statements 
 made after a 
 reward and 
 pardon offered 
 by tlie Secre- 
 tary of State 
 rejected, it 
 appearing 
 that they were 
 produced 
 tliereby. 
 
 Tlif I'oinuiou Scrjcaut after con.sultin;,' 
 Erie, J. II. V. Bate, 11 Co.x, t". (\ GSti. 
 
 (o) Rex V. Derrington, 2 C. & V. 41S, 
 Garrow, 15. 
 
 ( ?;) Hall's case, in note to Lanibc's 
 case, 2 Loach, 5r>i». lUit where a person 
 
 VUI,. III. 
 
 had been adniitUd kin^^'s evidenoe, and 
 confessed, and npun the trial of his ac- 
 coniplices refnsed to give evidence, he 
 was eonvict(Hl njion his own confession. 
 Kex r. Hurley, 2 Stark. Kv. 13. Seo K. 
 V. Gilli«, 11 i'ox, ('. C. 09.
 
 4 no 
 
 (y I'^ckIcucc 
 
 [book VI. 
 
 Confi'N«ioii by 
 u |>ri.soiier 
 lifter lio li.itl 
 ln'iml of 11 
 icwanl mill 
 ])nr(luii, iiikI 
 aftcM' lie Iiail 
 liccn pjiu- 
 tioiicd, licKl 
 nJuiissiblc. 
 
 u.scri1)L'<l tn liiiii \v:is iiillufiiccd by tlio lio|*t; of purdoii held out by 
 autborizcd luuliis. 1 sbtdl, tlieiefcjie, reject the evidence of all 
 statements made by him after the evening of the lOth of December, 
 and expun^a- froiii my notes such as have already been given in 
 evidence.' (7) 
 
 Upon an indictment for murder, it apjjeared that the prisoner 
 sent to the chaplain of the gaol, and said he thought it was very 
 hard that some of the ])risoners should have their lives taken away 
 wrongfully, and a.skcd the chaplain if any magistrate would come 
 that day, a.s he wi.shcd to see a magistrate to make a statement 
 rcs])ccting the charge ; and then .said, ' Has any proclamation been 
 matle, or any offer of pardon?' The chaplain said proclamation 
 had been made some time, and an offer of pardon. The prisoner 
 then said if any person .should make known the circumstances, it 
 would be impossible for him to go back to Pershore. The chap- 
 lain said that any person who made such a statement would 
 probably not think of going back to Pershore, and that if he 
 made a statement the chaplain hoped that he would understand 
 that he could offer him no inducement, as it must be his own free 
 and \'oluntary act. When the prisoner asked if there was a pro- 
 clamation, there was something said that the reward would enable 
 a person to go elsewhere. A magistrate came in about three- 
 quarters of an hour, and what passed between him and the pri- 
 .soner, before the latter made a statement, was reduced to writing 
 as follows : — ' The voluntary information and confession, &c., 
 ' who saith, in answer to questions put by the said magistrate, 
 I wish to make a statement of what I know. I have told the 
 chaplain so, and desired him to send for a magistrate. No person 
 lias made any promise or held out any inducement ; what I have 
 said to the chaplain, and what I am about now to say, is my own 
 free and voluntary act and desire.' The said magistrate having 
 read over to the said prisoner the foregoing statement, informed 
 him he was at liberty to say anything he might wish, and that it 
 would be the said magistrate's duty as a magistrate to take it 
 down in writing. The said prisoner voluntarily saith as follows 
 [here followed the statement.] It was urged that this statement 
 ought not to be admitted, as it was manifest that the motive 
 ■which induced the prisoner to make it was the offer of pardon. 
 It was clear he made it to save himself by means of the pardon. 
 Pollock, 0. B., ' I collect from the decision in Meg. v. Bosicell, (/■) 
 that before a statement can be excluded on the ground that 
 it was made in the hope of a pardon, it must appear that that 
 motive was operating on the prisoner's mind, and in that case, up 
 to the moment when that was shown, my brothers Patteson and 
 Cresswell held the statements of the prisoner to be receivable, 
 though the prisoner knew of the reward and the promise of a pardon 
 having been offered by the Secretary of State ; but when it ap- 
 peared that Boswell had made the communication, stating " he 
 saw no reason why he should suffer for the crime of another, and 
 that, as government had offered a free pardon to any of the 
 parties concerned, who had not struck the blow, he would tell all 
 about the matter," it was held that the statement Avas inadmissible, 
 
 ) Keg. V. Boswt'll. I'. & M. 5S4. 
 
 </•) Supra.
 
 CHAP. 
 
 iv. § I.] Confessions and Admissions. 
 
 451 
 
 as it appeared that the prisoner was influenced by the hope of 
 pardon held out by authorized parties. In the present case the 
 chaplain said to the prisoner, after the pardon had been alluded 
 to, that he hoped ho would understand that he, the chaplain, 
 could offer him no inducement ; it must be his own free and volun- 
 tary act, and what the magistrate said to him is very nearly to the 
 same effect. I think that the statement of the prisoner must be 
 received.' (s) 
 
 Moore and Blackburn were tried for a murder. The chief con- 
 stable had received three anonymous letters ; No. 1 on the 29th 
 of October, No. 2 on the 3rd of November, and No. 3 on the 8th 
 of that month ; on the 12th Moore was examined as a witness 
 against Blackburn before the magistrates; and, on his leaving, the 
 chief constable told him that he was not satisfied with the way he 
 had given his evidence ; Moore said that he had more to state, 
 and was desired to put it on paper, and the next day a paper was 
 produced, which Moore said he had written. The chief constable 
 then said, ' I arrest you as the writer of several anonymous 
 letters, showing a guilty knowledge of the murder.' Moore said 
 he had written the letters Nos. 1 and 2, and the chief constable 
 believed No. 3 to be in his handwriting. A large reward had been 
 offered to anyone giving private information of the murder, and a 
 reward and free pardon by government for any accomplice not the 
 actual murderer ; and a handbill had been circulated, dated 
 Nov. 4, stating these rewards and pardon. Moore had received a 
 shilling a day by the direction of the chief constable whilst he 
 was a witness, as he stated he was starving. The chief constable 
 told Moore repeatedly, when he was treated as a witness, that he 
 must speak the truth ; but he never offered him any inducement 
 to make any statement. It was held that these letters and state- 
 ments were admissible ; they were not confessions, but merely 
 statements made to get others implicated. The governor of the gaol, 
 from notes made at the time, afterwards deposed to a statement 
 made by Moore in the magistrate's room at the gaol, four days after 
 he was charged with the murder ; at this time a printed copy of 
 the handbill offering the rewards and pardon was hanging up in 
 the room, and the contents were known to the prisoner, who fre- 
 quently, both before and after this statement, asked the governor 
 whether he thought he (the jDrisoner) could give evidence, but lie 
 never said that he made the statement in that expectation, or in 
 hope of getting the reward, and the gaoler on all occasions 
 told him, before he said anything, that his statements would be 
 used against him. Talfourd, J., received tlie statement at the 
 time ; but the foUowin^j morninof stated that he had consulted 
 Williams, J., and, upon mature consideration, they considered 
 that all the statements were admissible, with the exception of that 
 made to the gaoler. As it appeared that at the time it was made 
 the handbill was in the room, and the prisoner had the notion that 
 he would be admitted as a witness for the Crown, they were of 
 opinion, on mature couiiideration, that this statement was inadmis- 
 sible, and he should therefore expunge it from his notes, {t) 
 
 Letters ad- 
 mitted after 
 an offer of a 
 reward and 
 pardon, but a 
 statement re- 
 jected ; as the 
 latter, but not 
 the former, 
 seemed to have 
 been caused 
 by the reward 
 and pardon. 
 
 (s) Reg. !■. Diugley, 1 C. & K. 637. 
 
 it) Hon 
 33. 
 
 V. Blackburn, 6 Cox, C. C.
 
 4:y2 
 
 <'oiif(>Mtioii l>y 
 imu prittoncr 
 ufu-r niiotliiM' 
 linil hern 
 a<linitU-il 
 iiufcn's fvi- 
 iliMicc hikI 
 lifter ft cniiticiii 
 
 fl'DIII Ik iiiM^is- 
 Iralr. 
 
 Of Kt'ldcHLC 
 
 b-' 
 
 OOK VI. 
 
 All induce- 
 ment as to one 
 crime will not 
 exclude a. 
 oonfet^sion as 
 to another 
 crime. 
 
 Unless they 
 are jwirls of 
 
 'V\\v prisoner, wlio was indicted with several (ttlicfrs for ljuri,dary, 
 sent for a magistrate to tell liiin lie had sonicthinj^ to ccjnmiuni- 
 cate to him. 'J'lie ina;,'istratc acted at the interview -with great 
 cant inn, mid warned the pri.soner not to say anything that would 
 criminate liim.s(!lf, as what he said would he taken down iti writing, 
 and made use of as^ainst him on his trial. The prisoner replied he 
 did not care, as he knew that the witness knew all. Upon cro.ss- 
 e.xaniination, it ajipeared that the prisoner had hoen confined, after 
 his arrest, in the same cell with another person, charged with the 
 same crime, who had confessed and been admitted queen's evi- 
 dence ; the prisoner was aware of this, and it was to that he 
 alluded when he said that he knew the witness knew all, and 
 that it was from the statement made l>y the person wIjo had been 
 a(hnitted ([ucen's evidence that the prisoner was examined, and 
 his confession taken down. It was insisted that, under these cir- 
 cumstances, the confession Avas not admissible, as the caution 
 given by the magistrate did not appear to have had the effect of 
 removing from the prisoner's mind all the influences whicli 
 would have invalidated the confession, and that there was a 
 reasonable cause to lead the prisoner to believe that if he made 
 a confession he would be put in the same situation with the 
 other person who had done so. Cramptou, J., received the con- 
 fession, observing that the magistrate stated that, as far as he 
 knew, the prisoner came forwai'd voluntarily ; thiit a mere formal 
 caution from a magistrate would not be sufficient to set up a con- 
 fession, if it appeared that such confession was made under the 
 distinct iinpression of a previous promise or threat, but that it 
 did not appear that there was any previous inducement whatever. 
 If there were any threats made u.se of before, or any promises held 
 out, the distinct caution given by the magistrate was sufficient to 
 obviate them. It was in effect telling the prisoner that he would 
 get no benefit from his confession, and that he should consequently 
 dismiss from his mind all expectation of getting an}', if any such 
 he had. {u) 
 
 The prisoner had been in the custody of several constables, one 
 after another, and it was suggested on his behalf that one of them 
 had improperly induced him to confess, and this constable was 
 called, and stated that the prisoner was in his custody on another 
 charge, and w'as not suspected at that time of the offence for which 
 he was on his trial, and that he made a statement. It was sub- 
 mitted that if a promise was held out to him, it was immaterial 
 what the charge was. Littledale, J., 'I think not. If he was 
 taken up on a particular charge, I think that the promise could 
 only operate on his mind as to the charge on which he was taken 
 up. A promise as to one charge will not affect him as to another 
 charge.' The confession Avas admitted, {v) 
 
 But where several felonies form part of the same transaction, 
 
 (/() Berigaii'.s case, Joy, 27. 1 Ir. 
 Circ. I»(»p. 177. In this case there were 
 similar confessions made by all the jni- 
 soners, under circumstances precisely 
 similar, and they were all admitted. ' It 
 is not improbable,' observes Mr. Joy, 
 ' thiit in this case the prisoner was in- 
 duced to make the confession by what 
 
 his fellow-prisoner had done, and by his 
 liaving been adtTiitted i[«cen's evidence, 
 but no promise, threat, or inducement was 
 held out by any i)erson in autliority cal- 
 culated to make his confession untrue. 
 Joy, 28. 
 
 (i) Hex p. "Warner and Morg.an, Glou- 
 cester Spr. Ass. 1S32. MSS. C. S. G.
 
 CHAP. IV. § I.] Confessions and Admissions. 453 
 
 an inducement lield out as to one will exclude a statement as to the same 
 another, (w) _ transactiou. 
 
 Upon an indictment for murdei', it appeared that the prisoner A confession 
 and the deceased had been in the service of Mrs. Coxe, at Bath. ^'^^^ ^^f°I^' 
 The deceased was murdered in the night of the 26th of January, pemiasion b\' 
 and the prisoner was apprehended on the '30th of that month, and a clergyman, 
 some articles belonging to Mrs. Coxe afterwards found in a room ^?^ '^''*^ ^'^y 
 hired by him. When in gaol, the prisoner had the Bible and the pQ,.j^i benefit, 
 Whole Duty of Man by him ; the gaoler pointed out several pas- is admissible. 
 sages for him to read in the Prayer Book, particularly the opening 
 sentences of the service, and told him if he wished to have a 
 spiritual adviser he woidd endeavour to get him one ; and after 
 some conversation the prisoner expressed a Avisli to have the chap- 
 lain of the gaol. The chaplain went to the gaol and asked the 
 prisoner why he sent to him ; the prisoner answered, to read and 
 pray with him, as he could not do it himself, or make use of the 
 books which were lying before him, which were the Bible, Prayer 
 Book, and Whole Duty of Man. The prisoner said he knew he 
 was a sinner, and should soon die. The chaplain asked hitn how 
 he knew it ; he replied, he had been told at the Hall he should 
 be hanged for taking the goods of his mistress ; and he then ad- 
 mitted that he had purloined a few things from her. The chaplain 
 saw he was in a very perturbed and distressed state of mind, and 
 asked him if there was not something still more heavy on his con- 
 science ; he said he knew he was a sinner as other men, and he 
 knew he Avas suspected uf the unhappy murder. The chaplain 
 told him, if he was innocent to maintain his innocence ; but if 
 not, his own heart would tell him. The chaplain, as the minister 
 of God, thought it was his duty to wai'n him not to add sin to sin, 
 by attempting to dissemble with God. The chaplain then asked 
 him, as he confessed himself a sinner, and as he thought he should 
 soon die, whether he would not wish to repent of his sins ; he au- 
 sweretl in the affirmative. The chaplain then explained to him 
 • what he considered to be the nature of true repentance ; and, 
 amongst other things, that it was not a mere acknowledgment of 
 sin, but a deep search into ourselves, and by the purity of the 
 Gospel, whenever we found ourselves deep defaulters, to confess 
 the same before God, with a deep contrition un our part for having 
 violated the law of God. The chaplain told him, that before CJod 
 it would be better for him to confess his sins. The chaplain also 
 told hira, that, next to confessing his sins before God, another 
 most important part of the duty of repentance was to repair, by 
 all possible means in his power, every injury of whatsoever nature 
 he had done to iiis fellow-creatures ; he enlarged very consider- 
 ably on his repairing the injuries he had dune his fellow-creatures, 
 as forming a branch of true re})entance ; and lie said he might say, 
 and repairing any injury done to the laws of his counti'y. The 
 chaplain stated that the prisoner was then extremely agitated ; he 
 read to him part of the Commination Service, commenting upon 
 it as he went along. He thought at one time tliat the prisoner 
 was on the point of making some immediate communication to him, 
 and he asked him if he should sond for Mr. Bourne (tlie gaok-r), 
 
 (//') IJog. r. Hcani. C >'ic :\1. lOP.
 
 •l.Vl 
 
 of Evidence. 
 
 [book 
 
 vr. 
 
 First caution. 
 
 First con- 
 fession to the 
 irnoler. 
 
 iiit'Miiiiii^ it, with a view of tlic prisoner m;ikinf( a communication 
 to Ijonrne, because; lie con.si<lereii iu; li.'ul made a great impressiou 
 on the prisoner. The chaplain stated the prisoner's agitation and 
 perturhed state of mind during the interview was so great that 
 III" could not help being aware that the prisoner had sometliing 
 pressing on his mind ; and tlie chaplain said while that w%'is the 
 cas(! he could tell the prisoner, and the prisoner would feel, that 
 no services of his would afford him, what he wished they should 
 do, real condort ; telling him also lie must be awan; that he, as a 
 minister of God, had but one object in view, to bring him to a 
 state of true repentance ; and that he could not but himself feel 
 se'lisiblc that he was more concerned in tiie dreadful deed than he 
 had admitted ; that he did not wish him to confess to him, but to 
 bear in mind the subject on whicli he had talked to him and read 
 to him. The prisoner was evidently so worked upon by what had 
 been said, that the chaplain could not but observe it to him, and 
 asked him whether his conscience did not bear witness to the truth 
 of Avhat he had advanced. The chaplain soon after left hira, the 
 prisoner having expressed a wish to see him again. He then went 
 and reported to the magistrates wliat had passed between them ; 
 and having recovered himself a little from the agitation lie was in 
 from so painful an interview^ went to the prisoner again a little 
 before three on the same day, and resumed the tenor of his con- 
 versation upon repentance, and confessing his sins before God, 
 and repairing, by every possible means, any injury he had done to 
 his fellow- creatures. As the prisoner had himself alluded to the 
 murder, the chaplain entreated him, if he knew himself guilty, to 
 avail himself, by the means of general repentance and faith in 
 Christ, to be reconciled with God. At one time, during this in- 
 terview, the chaplain saw so evident an impression made on his 
 mind, that he could not but tell him, his fear, which he had ex- 
 pressed to the prisoner in the morning, respecting his participa- 
 tion in the dreadful deed, was fully confirmed ; and that while he 
 was in that state of mind, he (the chaplain) could not afford him 
 the consolation by prayer, which it was his earnest wish to do, 
 and so that his prayers could be of any avail to him ; and he soon 
 after left the prisoner. The first interview lasted about two 
 hours, and the second about an hour and a quarter, and during 
 these interviews the chaplain enlarged upon the topics mentioned 
 to the prisoner. The chaplain said he could almost take upon 
 himself to say, that he always used the terms, ' confessing his sins 
 before God ; ' but he afterwards said that he could not say, that 
 he mentioned ' before Goil ' every time he used the word 'con- 
 fessing.' After the second interview, the gaoler saw the prisoner, 
 and told the prisoner what had passed between him, the gaoler, 
 and the prisoner's wife ; and he also told the prisoner, that he was 
 perfectly satisfied that what he, the gaoler, said in the morning 
 Avas correct. The prisoner then said he would tell the gaoler all 
 about it. The gaoler said to him, 'Don't tell me anything but 
 Avhat you would Avish the mayor and magistrates to know, for 
 whatever you tell me I must inform them of.' The prisoner then 
 related to the gaoler the particulars of the murder, and the way 
 in which he had committed it. The gaoler then said to him, 
 'Now 1 .shall tell all this to the mayor and magistrates.' The
 
 CHAP. IV. § 1.] Confessions and Admissions. 455 
 
 prisoner then said, 'That is what I wish ;' he said he had endea- 
 voured to make up his mind to confess before ; he had a great mind 
 on Monday. He then requested the mayor shoukl come and hear 
 what he had to say : and particularly wished to see the clergyman 
 again. The next morning (Saturday) the gaoler saw him again, 
 and read to him two prayers and a psalm : he said he felt himself 
 a good deal easier in his mind. The mayor of Bath and town clerk 
 came about ten o'clock. The prisoner, before he saw them, told 
 the gaoler that some part of what he had stated the night before 
 was not correct, as to what part of the house he met the deceased 
 in when he first struck her, and he said it was in another part of 
 the house. When the mayor saw the prisoner in the gaoler's 
 room, he said, ' I am come to see you, as I understand you wish 
 to make some communication to me.' The mayor then said to Second cau- 
 him, ' Before you say anything, I think it necessary to apprise t'*"!- 
 you, as I have done sevei'al times during your examination, that 
 it will probably be given in evidence against you. You are, there- 
 fore, to use your own discretion, and say little or nothing, as you 
 may think best ; and if you have changed your mind since you 
 sent to me, and do not choose to say anything, I will retire, and 
 shall not feel at all angry with you for having brought me down 
 unnecessarily.' The prisoner said something ; what he said was Second con- 
 taken down in writing, in his own words ; it was read over to him ^'^^^^^^ to tin 
 
 • • • in Ivor 
 
 by the town clerk, and the clerk asked him if he had any objec- 
 tion to sign it : he said he had not any, but his hand shook so 
 much he could not write his name, but it was all true. The mayor 
 then signed the examination, but it was not signed by the pri- 
 soner. This examination of the prisoner was read ; and it con- 
 tained a confession of his having committed the mmxler, and the 
 circumstances attending it. It appeared that the prisoner had 
 undergone five or six examinations, including the coroner's in- 
 quest. In the course of the same morning, after the mayor was 
 gone, one of the mayor's officers saw the prisoner, and in answer 
 to a question how he was, the prisoner told him he was better 
 since he had eased his mind ; and in the conversation they had, he Tliird con- 
 told the officer that he had committed the murder, and related fession>to tho 
 some of the particulars. Tlie next morning (Sunday) the prisoner ^cer ^ 
 was taken from Bath to the county gaol by another of the mayor's 
 officers, and in answer to an inquiry how he felt, he said he felt a Fourth con- 
 good deal l)etter since he had relieved his mind ; and in the course ^•^^'^""^ *" t''° 
 of their journey he told this last-mentioned officer that he had ^^er.^ 
 commitlod tlio murder, and stated some of the particulars. It was 
 contended on the part of the prosecution that, even supposing tlie 
 confession made to Bourne, the gaoler at Bath, immediately after 
 the chaplain's interview with the prisoner, were not receivable in 
 evidence, still that the confession made to the mayor was re- 
 ceivable, inasmuch as the mayor cautiouLil him ngainst saying 
 anything, unless he thought it right, anil that what he said would Opinion of 
 probably be given in evidence against him. But Littleilale, J., Li"lcd.ale, J. 
 thought that, after what the chaplain had said to him, nothing 
 that the mayor said could do away the effect whicii the chaplain 
 had produced in his mind, and that it diffi'red from those cases 
 where a confession having been made under circumstances which 
 prevented its being received in evidence, if a magistrate has can-
 
 4/56* ( >/' h'vidcnce. [liooK vj. 
 
 tioiicd a )iiisoiirr not to say aiiytliiiif,' n^jainst liiinsolf, a .sul)S((|Uont 
 coiilcssioii Mia(l(; Ix'foio a inagistrat(j has been admitted in evi- 
 dence. Tlic learned Jud^^^e received the confessions in evidence, 
 nnd I lie prisoner was found guilty. But tlie point was reserved 
 I'mi I he consideration of the jud^^es ; before wlioni it was argued, (y) 
 The judi^es were of opinion that the confessions had l^een properly 
 received, and that the conviction was ri^d)t ; upon the ground, it 
 is understood, that there were no temporal hop('S of ijcnetit or for- 
 giveness held out, and that such hopes, if referriblc merely to a 
 future state of existence, arc not within the principle on which 
 the rule for excluding confessions obtained by improper influence 
 is founded, (z) 
 
 (e) What Threats and Menaces vdll exclude a Confession. 
 
 Threats nnd As to what .shall bc considered as a threat, saying to a prisoner 
 
 iiRiiaccs. ^|j^^^ -^^ would be worse for him if he did not confess, is sufficient 
 
 to exclude a confession. («) So a confession induced by saying, 
 
 ' Unless you give me a more satisfactory account, I will take you 
 
 before a magistrate,' or (?>) by saying, 'that unfortunate watch 
 
 has been found, and if you do not tell me who your partner was, 
 
 I will commit you to prison as soon as we get to Newca.stle ; you 
 
 are a damned villain, and the gallows is painted it) you face,' (c) 
 
 cannot be given in evidence. So where a prosecutrix said to her 
 
 servant girl, who was in custody on a charge of administering 
 
 poison to her, ' Jane, now you see the effects of your wickedness ; 
 
 you will bc to go from here to-morrow morning to Stourbridge to 
 
 the magistrates, and not return again.' The girl answered, 
 
 ' Sooner than I will go from here or anywhere else, I will tell the 
 
 truth;' and the prosecutrix said, 'That is what I av ant,' and the 
 
 prisoner then made a statement ; it was held that the statement 
 
 Avas inadmissible, because it was made to prevent her being taken 
 
 before the magistrates. ((?) 
 
 Tlrcatening A boy, between eight and nine years old, was tlius questioned 
 
 t.> apiirchend ^ ^ policeman : ' Have you ever been to school ? ' He said ' Yes.' 
 
 char),'.- of ' Do you kuow wliat will become of you if you tell a falsehood ? ' 
 
 ■M-^ou. ' Yes ; I shall go to hell.' ' Do you think God knows everything 
 
 that is done ?' 'Yes.' ' Do you think he knows wdio set fire to the 
 
 haystack ? ' The boy did not answer, but began to cry. The 
 
 (//) The following authorities were late the coiitiileiicc repo.seJ in liiia bj' the 
 
 cited : Kex r. Itadford, tried at Exeter prisoner, and exprc^.-^ed a strong opinion 
 
 Summer Assizes, 1S-J:3, where a clergynian to tiiat etl'eet ; and as the evidence was not 
 
 liad prevailed on the prisoner to confess a wanted for the Crown, it was not ]ire;--sed, 
 
 murder, by dwelling on the heinousness and the prisoner was convicted without it. 
 
 of tlie crime, and the denunciations of l\ex i: Sparkes, cited Peake, N. P. R. 78. 
 
 Scripture against it, without giving him "Williams v. Williams, 1 Hagg. 304. 
 any caution that it would be used in evi- {z) Hex i\ tJilhaui, R. & 31. C. C. R. 
 
 dcnce against iiim, and IJest, C". J., refused 13(5. 
 
 to allow the clergyman to state the con- (a) 2 East, P. C. c. Iti, s. 94, p. 65P. 
 
 fession ; saying that he thought it dan- 1\. v. t'oley, 10 Cox, C. C. 536. 
 gerous after the conlidcnce thus created, (l>) Thompson's case, 1 Leach, 291. 
 
 which would throw the prisoner otf his (c) Rex v. Parratt, 4 C. & P. 570, 
 
 guard, and tlie impression thus produced, Aldcrson, J. 
 
 to allow what he then said to be given in (<l) Eex r. Griffiths, MSS. C. S. O. 
 
 evidence against him. But it is said that "Worcester Sum. Ass. 1S32, Bosanquet, .T. 
 
 this case was not determined on this S. V. as Eex c. Kichard-s 5 C. & P. 31S. 
 
 ground; but that Best, C. J., thought that See this case more fully, post, p. 463. 
 it was imi^oper in the clergyman to vio-
 
 CHAP. IV. § T.] Confessions and Admissions. 457 
 
 policeman then asked whether he could give any information about 
 the fire, and told him, before he made any statement, he should 
 apprehend him upon a charge of setting fire to Mr. Wright's 
 ricks. After that the boy made a statement. Cresswell, J., 
 after consulting Williams, J., said, ' It seems to us both too 
 hazardous to admit this evidence. It is impossible not to say that 
 what passed may have acted upon the boy's mind as a threat' (e) 
 
 Wliere the prisoner was indicted for sheep-stealing, and, prior Words not 
 to his examination before the magistrate, his wife volunteered a arao^nting to 
 confession of the particulars of the robbery ; and on the prisoner 
 being brought up for examination, the magistrate told him that 
 his wife had already confessed the whole, and that there was quite 
 case enough against him to send a bill before a grand jur}', and 
 then asked him what he had to say. The jarisoner immediately 
 confessed his guilt, and stated several facts, which had been pre- 
 viously deposed to by his wife. It was objected that this confes- 
 sion could not be received, inasmuch as the magistrate's address 
 to the prisoner when he was brought before him to be examined 
 was in the nature of a menace. But Parke, J., overruled the 
 objection, saying he considered it rather as a caution. (/) 
 
 The words, ' I must know more about it,' said by a police constable 
 to a prisoner in the course of a conversation between them 
 respecting the subject matter of the charge, immediately before 
 apprehension, were held not to exclude an admission, {(j) 
 
 Prosecutrix lost her purse, containing 11. 4.s., in a market, and 
 asked the prisoner, who had been standing near her, whether he 
 had seen the purse or seen anyone pick it up. He replied that 
 he had not. She, however, suspecting that he had robbed her, 
 gave information to the police. A policeman a short time after 
 went in search of prisoner, and having found him, told him that 
 the prosecutrix had lost her purse, and tliat it was supposed that 
 he had picked it up, and added, 'Now is the time for 3'ou to take 
 it back to her.' He denied having it, and went with the police- 
 man. As they walked along he commenced making a statement, 
 but the policeman told him to say nothing until they saw the pro- 
 secutrix. Having met the prosecutrix after they had walked 
 about six hundred yards, some conversation took place, and the 
 prisoner was searched, and on a half a sovereign being found, the 
 prisoner said to the prosecutrix that he would make it all up to 
 her. Twenty minutes had elapsed between the time of the police- 
 man's remark, ' Now is the time to take it back to her,' and the 
 prisoner's statement, ' That he Avould make it all up to her." 
 Held, that there was no inducement held out to the prisoner, and 
 that his statement or confession that he wduld make it all up to 
 her was admissible in evidence against him. (A) 
 
 If the words used to a prisoner bo such that he might consider 
 them as a threat, a confession is not admissible. The prisoner 
 being in custody on a charge of arson, he was told that ' he ought 
 to tell whatever was the truth, but he must be very careful, as he 
 was sure to be committed,' on which he made a statement. Taun- 
 
 Whcre the 
 words used arc 
 .iml'iguous. 
 
 (fi) Keg. r. Day, '2 Cox, C. C. 200. 
 Rex V. Grilhths, si'prn, and Reg. v. Hearn, 
 C. & M. 10!), were cited. 
 
 (/) Wriglit's case, 1 Lew. 48. See K. 
 
 Long, G C. & P. 17!>. 
 
 {(I) R. V. Reason, 12 Cox, C. C. 228. 
 
 (h) R. V. Jone.s, 12 Cox, C. C. '241.
 
 l.TS 
 
 Ullilor flll^^O 
 
 Of Evidriico. 
 
 Fbook VI. 
 
 ton, J., (l<Mil)lf'(l wIicIIkt lilt' words used niiiflit not hn construed as 
 a tlircal, and liavin;; consull*;!! Littlcdalc, J., said, ' Wc think as 
 tlic words wcro so andji^uous that thoy nii<fht be c<jnsideied by 
 tho prisoner as a throat, th<j cviilencc ouglit not to bo given.' (/') 
 
 Where a i)iis()ncr had been taken into custody by a constable 
 without a warrant, and detained by him in durance tor four days, 
 .lud (hiriiii;- ids conlincniont a confession was obtained under cer- 
 tain jMoinisos, and on tho part of the })rosecution it was attempted 
 to bo shown that the confession wa.s voluntary, and not made 
 under such promises ; Hob-oyd, J., said, 'Even if that were so, tho 
 fact of its having been made while in unlawfxd custody renders 
 it imavailiug ;' and there being no sufficient evidence without it, 
 he directed an acquittal. (/:) 
 
 Confessions 
 niiwlc after 
 one uiuhily 
 tained. 
 
 Confession 
 after indiUM 
 ment once 
 m.ide. 
 
 {d) Confession made after former one v.ndnly obtained, or after 
 Inducements once made. 
 
 If a confession has been obtained from the prisoner by imdue 
 of,, means, any statement afterwards made by him under tlie influence 
 of that confession cannot be admitted as evidence. 
 
 Where an inducement which would exclude a confession has been 
 held out to a prisoner, there ought to be clear evidence to show 
 that the impression caused by it has been removed, before a subse- 
 quent confession made at a different time is admitted as evi- 
 dence. (?) The cases upon this subject are conflicting. But certain 
 general rules and principles can be deduced from the following 
 cases. The <iiiestion whether the confessions can be received in evi- 
 dence is for the judge, and each case must be determined upon its 
 own facts. 
 
 In the case of Rex v. Xute, (in) the prisoner was suspected of set- 
 ting fire to an outhouse ; her mistress pressed her to confess, and 
 told her, among other things, if she would repent and confess God 
 Would forgive her, but she concealed from her that she would not 
 forgive her herself : she confessed. The next day, another person, 
 in her mistress's sight, though out of her hearing, told her her mis- 
 tress said she had confessed, and drew from her a second confession. 
 Loril Eldon, C. J., allowed the confessions in evidence, and the 
 prisoner was convicted. The jury, on having the confessions put 
 to them, said they thought the first confession made under a hope 
 of favour here, and the second under the influence of having made 
 the first. On a case reserved, the judges held that these points 
 were not for the jury, but if Lord Eldon agreed with the jury, 
 ■which he did, the confessions were not receivable ; but many of 
 them thought the expressions not calculated to raise hope of 
 favour here, and, if not, the confessions were evidence. So in Rex 
 V. Sexton, (n) a confession had been improperly obtained by giving 
 
 (t) Bex r. "Williams, Gloucester Spr. 
 Ass. 1832, MSS. C. S. G. 
 
 (k) Ackroyd's case, 1 Lew. -19. This 
 deeisii^i has been questioned, and it has 
 been i>bserved that 'if the prisoner were 
 to believe tlie apprehension unlawful, that 
 would make him careful not to disclose 
 anything against himself; if he should 
 suppose it lawful, that also would make 
 
 him careful not to make his situation 
 worse, nor in any respect to prejudice 
 himself.' 1 Thill. Ev. 407, and see Kex 
 i: Thornton, U. & M. C. C. R. 27. 
 
 (/) Sec 2 East, P. C. 658. Bell's case, 
 Joy, 71. 
 
 (m) 1 Burn. J., Doyl. & Wms. 10S6. 
 
 (n) 1 Burn. J., Doyl. & Wms.. 1086.
 
 CHAP. IV. § I.] Confessions and Admissions. 
 
 the prisoner two glasses of gin : the officer to whom it had been 
 made read it over to the prisoner before the committing magis- 
 trate, who told the prisoner the offence imputed to him affected 
 his life, and a confession might do him harm. The prisoner said, 
 that what had been read to him was the truth, and signed the 
 paper. Best, J., considered the second confession, as well as the 
 first, inadmissible : and said, that had the magistrate known the 
 officer had given the prisoner gin, he would, no doubt, have told 
 the prisoner that what he had already said could not be given in 
 evidence against him, and that it was for him to consider whether 
 he would make a second confession. If the prisoner had been told 
 this, what he afterwards said would be evidence against him ; but 
 for want of this information he might think that he could not 
 make his case worse than he had already made it, and under this 
 impression might sign the confession before the magistrate. 
 
 Upon an indictment for murder it appeared that the prisoner 
 worked at a colliery, and some suspicion having fallen upon him, 
 the overlooker charged him with the murder. The prisoner denied 
 having been near the place. Presently the overlooker called his 
 attention to certain statements made by liis wife and sister, which 
 were inconsistent with his own ; and added, ' There is no doubt 
 thou wilt be found guilty ; it will be better for you if you will con- 
 fess.' A constable then came in, and said to the overlooker, in a 
 tone loud enough for the prisoner to hear, ' Robert, do not make 
 him any promises.' The prisoner then made a confession. Patte- 
 son, J., 'Tliatwill not do. The constable ought to have done 
 something to remove the impression from the prisoner's mind.' 
 The overlooker, in about ten minuteS; delivered the prisoner to the 
 constable of the township. The constable stated, that when he re- 
 ceived the prisoner, the overlooker told him (but not in the 
 prisoner's hearing) that the prisoner had confessed. That he took 
 the prisoner to his house, and there said, ' I believe Sherrington 
 has murdered a man in a brutal manner. That the wife and 
 brother of the prisoner were there, and said to the prisoner, ' What 
 made thee go near the cabin ? ' That the prisoner in answer 
 made a statement similar in effect to the one he had made before. 
 That he used neither promise nor threat to induce the prisoner to 
 say anything. But that he did not caution him. That it was not 
 more than five minutes after he received the prisoner into his 
 charge that the prisoner made the statement. That he was not 
 aware that the overlooker had held out any inducement. That the 
 overlooker was not present when the statement was made. For 
 the prisoner it was submitted that the second confession must be 
 taken to have been made under the .same influence as the first. 
 Pattcson, J., ' There ought to be strong evidence to show that the 
 impression under which the first confession was made was after- 
 wards removed, before the second confession can be received. I 
 am of opinion, in this case, that the prisoner must be considered 
 to have made the second confession under the .same influence as he 
 made the first ; the interval of time being too short to allow of the 
 supposition that it was the result of reflection and voluntary deter- 
 mination ; ' and the statement was rejected, (o) 
 
 (o) Shen'ingtou's cast', 2 Lew. 123. Jleviu'H'.s case, 2 \.vw. 122; \\. v. Hewptt, (.". 
 & IL 534. 
 
 459 
 
 ^Yhcl■e one 
 confession has 
 been olitainecl 
 by an induce- 
 ment, there 
 ought to bo 
 strong evi- 
 dence to show 
 that the im- 
 pression under 
 which it was 
 made was re- 
 moved before 
 a subsequent 
 confession can 
 be received.
 
 4G0 
 
 Of FA'idcncc. 
 
 b'' 
 
 <)(»!< VI. 
 
 Confessions 
 
 liavc bccu 
 (lone away arc 
 admissible. 
 
 Wlicrc llif j)ri.s(tiK'r Imd Ikcii iiirluood by proiiiisos of fUvoiir to 
 inako a confession, wliicli was tor that cause excluded, V)ut about 
 five months afterwards, and after having been solemnly warned by 
 two ma;,d St rates that ho must expect death, and prepare to meet 
 it, he aL;ain ma<le a full eonfc^ssion, this latter confession was 
 admitted in evidence, {p) In this rase, upon much consideration 
 the rule was stated to be tliat, although an original confession 
 may have been obtained by improper means, yet sidwequent con- 
 fessions of the same or of like facts may ije admitted, if the court 
 believes, from the length of time intervening, or from proper 
 warning of the consequences of confession, or from other circum- 
 stances, that the delusive hopes or fears, under the influence of 
 which the original confession was obtained, were entirely dis- 
 pelled, [q) lu the absence of any such circumstances the influence 
 of the motives, proved to have been offered, will be presumed to 
 continue, and to have produced the confession, unless the contrary 
 is show^u by clear evidence, and the confession will therefore be 
 rejected, (r) 
 
 Although such improper inducements may have been lield 
 luaiie after the ^^^^ j,^ r^ prisoner as would exclude a confession made under their 
 ilucenients influence, yet if the court, taking into consideration all the circum- 
 stances of the case, should be of opinion that at the time a confession 
 was made such inducements had ceased to operate upon the mind 
 of the prisoner, such confession will be admissible. In determining 
 whether an inducement has ceased to operate, it will be material to 
 consider the nature of such inducement, the time and circumstances 
 under which it w^as made, the situation of the person making it, 
 the time which has intervened between the inducement and the 
 confession, and whether there has been an}- caution given, and if 
 so, whether that caution has been given generally, or expressly and 
 siDcciiically with reference to the inducement held out. Thus 
 where it appeared that the prisoner, on being taken into custody, 
 had been told by a person wdio came to assist the constable that 
 it woidd be better for him to confess, but that, on his being ex- 
 amined before the committing magistrate on the following day, he 
 was frequently cautioned by the magistrate to say nothing against 
 himself, a confession under these circumstances before the magis- 
 trate was held to be clearly admissible, (.s) 
 
 Where it appeared that a constable told the prisoner he might 
 do himself some good by confessing ; and the prisoner afterwards 
 asked the magistrate if it would benefit him to confess ; on which 
 the magistrate said he could not say it would, and the prisoner 
 then declined confessing; but afterwards, in his way to prison, he 
 made a confession to another constable ; and he confessed again 
 in prison to another magistrate ; the judges were unanimous in 
 holding that the confessions were admissible in evidence, on the 
 ground that the magistrate's answer was sufticient to efface any 
 expectation which the constable might have raised, {t) Nor is it 
 any objection to a confession made before a magistrate, that the 
 
 (//) Guild's case, 5 Halst. 166, 168, as 
 stated, Groonl. Ev. 257. 
 
 (7) Greenl. Ev. 257, citiug Guild's case, 
 5 Halst. 180. 
 
 \r) Greenl. Ev. 257, citing Eoberts' 
 
 case, 1 Devereux R. 259, 264. 
 
 (s) Kex V. I.ingate, 1 Phill. Ev. 410, 
 Bayley, J. Sec K. r. Howes, 6 C. & P. 
 404, Lord Denman, C. J. 
 
 (0 Kex \: IJosier, 1 Phill. Ev. 411.
 
 CHAP. IV. § 1.] Confessions and Admissions. 461 
 
 prosecutor who was present first desired the prisoner to speak the 
 truth, and suggested that he had better speak out, provided the 
 magistrate or his clerk immediately checked the prosecutor, de- 
 sii'ing the prisoner not to regai'd him, but to say what he thought 
 proper, (u) 
 
 Where the prisoner has been duly cautioned by the magistrate, Where prisoner 
 in pursuance of 11 & 12 Vict. c. 42, s. 18, post, anything said by iws been duly 
 him thereupon is admissible in evidence against him, although ma"istrate'^' 
 there may have been a previous promise or threat held out to him 
 to induce him to confess, (v) That the caution has been given 
 requires no further proof than the fact of its appearing to have 
 been so given on the face of the prisoner's statement, returned 
 together with the depositions, (v) 
 
 Where before tlie above Act it appeared that, before a prisoner 
 Avas asked what he had to say, he was particularly cautioned by 
 the magistrate not to say anything that would injure himself, for 
 whatever he said would be taken down, and given in evidence 
 against him ; but it also appeared that a constable, who had pre- 
 viously induced the prisoner to make a confession to him by 
 telling him it would be better to confess, had been examined 
 before the magistrate, and in his examination had stated tliat he 
 had told the prisoner that it would be better to confess, and had 
 also stated all the prisoner had said to him in consequence; all 
 which had been taken down, and read over to the prisoner before 
 he made his statement ; Littledale, J., refused to allow the state- 
 ment to be given in evidence, as the caution given by the magis- 
 trate was not sufficient to obviate the effect of tlie inducement 
 used by the constable, (x) But where a constable proved that he 
 had given the prisoner a hand])ill, offering a reward to any ac- 
 complice who would give information on the subject of the 
 robbery, and the handbill was read over to tlie prisoner, who 
 made a statement, which the constable took in writing ;(/y) when 
 the prisoner was examined before the magistrate this statement 
 was incorporated into the constable's deposition. The prisoner 
 was then told that anything he said would be taken down, and 
 might be used against him, and the prisoner said that the state- 
 ment to the constable was quite true. It was objected that the 
 last statement would not make the statement to which it referred 
 evidence. The recognition of an inadmissible statement could not 
 make it admissible. Tindal, C. J., 'The impression made by the 
 constable was afterwards removed by the caution given by the 
 committing magistrate ; and then the prisoner adcjpts his former 
 statement. It is just the same as if the prisoner had repeated it 
 or written it down de novo after the caution, and then its admi.s- 
 sibility could not have been questioned.' {z) And where, before 
 
 («) 150XV. Eclwanls, 1 riiill. Ev. 411. 
 
 (r) R. V. Bate, 11 Cox, 68(3. 
 
 {x) Rex V. Smith, Woro(>stcr Spr. Ass. 
 1830, MSS. v. S. Vt. It is to he observed, 
 that not only was there no express caution 
 given in this case not to rely on the pro- 
 mise made, but that by receiving the 
 previous confession in evidence the magis- 
 trate treated it as if it had been ])roiierIy 
 obtained, and the prisoner might therefore 
 well conceive that a subienuent confession 
 
 could do him no in jmj', andniight possibly 
 hr hcUcr for him ; and sec the ruling of 
 the same learni'd judge in l{ex v. Gil- 
 ham, ante, p. I'lG. 
 
 {>j) Tindal, C. J., rejected this state- 
 ment. 
 
 {z) Reg. r. Horner, 1 Cox, C. C. 3(54, 
 No notice was taken of the statement 
 having been incorporated in the deposi- 
 tion of the constable, and therefore treated 
 bv tli.^ magistrate as lawfullv obtained :
 
 IC-J 
 
 Of Evidence. 
 
 [book VI. 
 
 liniuopor in- 
 Uiicoiiioiit liy 
 n l>(>lii'cin.iii ; 
 niul ii stalo- 
 iiR'iit to a sii- 
 
 l)IMilltl'lHll'llt 
 
 afterwanls 
 witlidul any 
 caution by 
 liiui. 
 
 luJuceuient 
 by iiersou ia 
 superior 
 authority. 
 
 Inducement 
 by a magis- 
 trate held re- 
 
 tlic jibovo Act, tlic jjiosc'cutor, iHjforc tlie prisoner was taken before 
 a niaifistrate, proiiiisetl liini that if Ik would tell the truth lie 
 wouKl do what ho coidd for him ; and when before tlie magis- 
 trate, who was not informed of this promise, he was cautioned 
 not to say anything to criminate liimseif. Park, J. A. J., thought 
 the confession made before the magistrate scarcely admissible, as 
 there shouUl have been an exi)licit and express warning against 
 till' promise which had been made l)y the prosecutor. («) 
 
 Where a policeman said to the prisoner, who was charged with 
 the murder of a bastard child, 'You had better tell all about it ; 
 it will save trouble ;' and then put questions to her ; Erie, J., held 
 that her answers were inadmissible ; but a superintendent of police 
 having afterwards, about the same time, gone to the prisoner, and, 
 without cautioning her, put certain questions to her ; but it did not 
 appear that he had referred to her statements to the policeman ; 
 she had, however, said when she saw him, 'Ah, I expected you: 
 and the questions related to the number of her children, and 
 especially what had become of the youngest, with whose murder 
 she was chargeil, and whether she had been at Colchester on a par- 
 ticular day ; Erie, J., after consulting Wightman, J., held that the 
 answers were admissible, {h) 
 
 Where a person in superior authority holds out an inducement 
 to a prisoner to confess, a confession made to a person in inferior 
 authority is not admissible, especially if such person do not give 
 the prisoner any caution. Upon an indictment for arson it ap- 
 peared that the committing magistrate had told the prisoner that, 
 if he would make a disclosure, be would do all that he could for 
 him. The prisoner, after he was committed, made a statement to 
 the turnkey of the gaol, who had held out no inducement to him 
 to confess, and had not given him any caution not to confess. 
 Parke, J., ' I think I ought not to receive the evidence, after 
 what Mr. Simeon (the committing magistrate) said to the prisoner, 
 more especially as the turnkey did not give any caution to the 
 prisoner.' (c) 
 
 Where upon an indictment for murder it appeared that the 
 prisoner had sent for the coroner, desiring to make some state- 
 
 ami Kex V. Smith, supra was not cited, 
 tliough a decision directly in point the 
 other way, and resting, be it said (with 
 all deference to that verj' great judge, 
 C. J. Tindal), on very sound reasons. 
 C. S. G. 
 
 (a) Rex r. Conipson, Worcester Spr. 
 Ass. 1829, MSS. C. S. G. The learned 
 judge left it to the jury to say whether the 
 prisoner had .sufficient warning before the 
 justice or not. This course seems to have 
 been erroneous. See Rex v. Xute, ante, 
 p. 4->S. See R. v. Collier, 3 Cox, C. C. 
 57 ; R. V. Mcllen, 3 Cox, C. C. 507 ; 
 R. V. Dohartv, 13 Cox, C. C. 23. 
 
 (6) Reg. i\ Cheverton, 2 F. & F. 833. 
 Tlie prisoner's statement was that the 
 father of the child had written for it, and 
 that she had sent it to him by a woman 
 at the railway station at Colchester. The 
 ]irisoner was acquitted, or the point would 
 have been reserved ; and the point de- 
 serves reconsideration. 
 
 (() Rex V. Cooper, 5 C. & P. 535. 
 The Reporters observe, 'If a person of 
 inferior authority cautions a prisoner not 
 to confess, after an inducement held out 
 by a person of superior authority, it is 
 important to consider whether a statement 
 made bj- a jirisoner under such circum- 
 stances would be receivable ; as it seems 
 to be but a fair conclusion that what was 
 said to the prisoner by the magistrate 
 would be much more likely to operate on 
 his mind than anything subseiiuently said 
 by a constable.' It maybe added, that 
 as the inferior can have no control over 
 the superior, it is difhcult to see how any 
 caution by the inferior could do aw.iy 
 with the etfect of the inducement by the 
 superior, as the prisoner must be aware 
 that the inferior could have no power to 
 prevent the superior from carrjing his 
 promise into etfect. See the ruling of 
 Littledale, J., in Rex v. Gilham, ante, p. 
 456. C. S. G.
 
 CHAP. IV. 
 
 Confessions and j.idiiiissioiis. 
 
 meut; the coroner told him that any confession that he made 
 woukl be produced against him on the trial, and that no hope or 
 promise of pardon could be held out to him, either by the govern- 
 ment, or by any one else. Previous to this time a magistrate had had 
 an interview with the prisoner, and had told him that if he was 
 not the man that struck the fatal blow he would use all his endea- 
 vours to prevent any ill consequences from ftilling on him, if he 
 would disclose what he knew of the murders, and that there were 
 so many persons concerned in the transaction that it would be 
 made known by some or other of tliem. The magistrate wrote a 
 letter to the Secretary of State for the Home Department, to which 
 he received an answer, stating that mercy could not be extended 
 to the prisoner, for reasons that were therein mentioned ; which 
 answer he communicated to the prisoner : all this occurred before 
 the prisoner sent for the coroner. It was objected tliat, although 
 the inducement that the magistrate would interest himself with 
 the government had been removed, yet there were two other in- 
 ducements ; first, the hope that would arise from the personal 
 endeavours of the magistrate ; and, secondly, the fear that if the 
 prisoner did not confess, some one else would tell before him. 
 Littledale, J., ' I think that this declaration is clearly admissible. 
 I think that the conversation with the magistrate, after he received 
 the Secretary of State's letter, and the caution given by the coroner, 
 must be taken to have completely put an end to all the hopes that 
 had been held out.' (d) 
 
 Where a prosecutrix said to her .servant-girl, who was in custody 
 of a private person in her house at night, on a charge of adminis- 
 tering poison, 'Jane, now you see the effects of your wickedness; 
 you will be to go from here to-morrow morning to Stourbridge, to 
 the magistrates, and not return again ; ' on which the girl said, 
 ' Sooner than I will go from here, or anywhere else, I will tell the 
 truth ;' to which the prosecutrix answered, ' That is all I want.' A 
 statement then made was held inadmissible. On the following 
 morning a constable came to the house, and while there, without 
 giving her any caution, said to the girl, ' My dear girl, where did 
 you get the stuff from that you put in the tea and coffee ? ' It was 
 held that what was then said must be considered as being under 
 the influence of what was said the night before, because she was 
 still in the house, and still in the hopes that she might not be 
 taken before the magistrates. The constable afterwards took her 
 to Stourbridge, and while on tlie way thither .she made a state- 
 ment, without any caution having been given, or any inducement 
 having been held out to her, and this was held admissible, because 
 the only hope was that she should not be taken away from the 
 house, and this must have been at an end when she was taken 
 away by the constable, (e) 
 
 463 
 
 moved by a 
 subsequent 
 communication 
 from tbe same 
 magistrate. 
 
 Threat of 
 taking before 
 a magistrate 
 at an end by 
 actually 
 taking thither. 
 
 (e) As to Fersons vAose Inducements uidl exclude Confessions. 
 
 With regard to the persons whose inducements will prevent the As to the 
 admission of confessions, it should seem that all who are engaged persons whose 
 
 {d) Kex V. Clewes, 4t'. & P. 221. See (e) Kcx r. Jane Orilliths, MS.S. C. S. V,. 
 
 Brj'au's case, Joy, 73. Jebb's C. & P. C. S. C. but not so fully reported Hex r. 
 157. Kicliards, 5 0. & P. 313, Bosauqiiet, J.
 
 -let 
 
 imlucoinpiil)* 
 will oxcliiilu 
 coiifoHHiiin.M. 
 
 Of Evidence. 
 
 [book VI. 
 
 Person acoom- 
 ]).inying tin- 
 l)ro.sucutor in 
 pnrsuit. 
 
 Master of a 
 ship. 
 
 A person 
 liaving a pri- 
 soner in 
 custody. 
 
 ill tlic apprcliciisioii, prosecution, or examination of a prisoner are 
 considi'icd as ])ersons of sncli autiiority tliat tlieir indiiceincnts 
 will e.xelude any confession thereby obtained. Thus an induce- 
 ment held out by the prosecutor, (/) the prosecutor's wife, {(j) or 
 his attorney, {h) or by a constable or other officer, (i) or some 
 person assisting a constable {j) or the prosecutor {k) in the appre- 
 hension or detention of the prisoner, or by a magistrate acting in 
 tlu> bu.'-ines.s, (J) or other magistrate, {m) or magistrate's clerk, (n) 
 or by a gaoler (o) or chaplain of a gaol, (;)) or by a per.sou having 
 authority over the prisoner, as by tlie captain of a vessel to one of 
 his crew, (f/) or by a master or mistress to a servant, (7*) or by a 
 person having authority in the matter, (*) or by a person in the 
 ])resence of one in authority with his assent, whether direct or im- 
 jilicd, (/) will be sufKcient to exclude a confession made in con.se- 
 queiice of such inducement. 
 
 The prisoner, when taken into custody, was told by a person 
 who had accompanied the prosecutor in pursuit of the prisoner 
 that it would be better for him to confess ; but it was urged 
 that, as he was a person who had no authority to interfere, the 
 confession was admis.sible. Littledalc, J., ' That applies to mere 
 strangers ; here the person went with the prosecutor, and was 
 acting with his authority and sanction.' The confession Avas re- 
 jected, {a) 
 
 Where a felony was committed on board a ship by the prisoner, 
 one of the crew, towards another of the crew% and the master of 
 the ship threatened to apprehend the prisoner, it was held that 
 this threat excluded a confession ; for the offence being a felony, 
 and a felony having been actually committed, the master had 
 power to apprehend the prisoner on reasonable suspicion that he 
 Avas guilty, (i") 
 
 Where a constable, who had a prisoner in custody on a charge of 
 murder, placed her in the custody of a woman whilst he went to 
 the inquest, to prevent her going away, and the woman held out 
 an inducement to her, it was held that a statement made in conse- 
 ([uence was not admissible, as it Avas made after an inducement 
 held out by a person Avho hatl her in custody. {vS) 
 
 if) Tliompson's case, 1 Leach, 291. 
 C'a.ss's case, ibiil. 
 
 (f/) Kox V. Upchureli, E. & Jl. C. C. 1!. 
 465, post, p. 467. 
 
 (h) 1 Pliill. Ev. 407. Reg. v. Croydou, 
 2 Cox, C. C. 67, an attorney endeavouring 
 to discover sonic burglars for the purpose 
 of prosecution, ante, p. 44.'). 
 
 (/) Rex V. Sexton, 1 Burn. J.. D. & 
 AVnis. 10S6. 
 
 {j) 1 Phill. Ev. 407. 
 
 (k) Rex V. Stacey, MSS. C. S. G. 
 infra, note {v). 
 
 '(I) 1 Phill. Ev. 407. 
 
 {m) Rex r. CIcwes, 4 C. & P. 221, 
 anlc, p. 463. 
 
 (n) Rex r. Drew, 8 V. & P. 140, ante, 
 p. 446. 
 
 (o) Rex V. Gilhaui, and.; p. 456. 
 
 {p) Rex c. Gilhani, supra. 
 
 (q) Rex I-. Pan-att, 4 C. & P. 570. 
 
 (r) Rex r. Upchurch, supra. Reg. c. 
 
 Taylor, 8 C. & P. 733. 
 
 (.s) 1 Phill. Ev. 407. 
 
 (0 Reg. '■. Tavlor, supra. Rex r. 
 Pountnev, 7 C. & P. 302. Reg. v. Garner, 
 1 Deu. C. C. 329. 
 
 {u) Rex r. Stacey, Monmouth Spr. 
 Ass. 1830, 5ISS. C. S. G. 
 
 (r) Anonymous, as stated by Parke. 
 B., in Reg. 'i'. Moore, 2 Den. C. C. 522. 
 This seems to be the same case as Rex v. 
 Parratt, supra, and and; p. 456, cxcejit 
 that the threat there was by the captain. 
 The case as stated by Parke, B., fully 
 supports mvnote (x) infra. C. S. G. 
 
 ^ic) Rex"r. Enock, "5 C. & P. 539, 
 Parke, J., after consulting Taunton, J. 
 This decision is clearly right, though the 
 last giound of the decision in Reg. c. 
 Sleeman, Deare. C. C. 249, is the other 
 wav. C. S. G. See R. v. "Windsor, 4 F. 
 & F. 360.
 
 CHAP. 
 
 tv. § I.] Confessions and Admissions. 
 
 * It has been argued, that a confession made upon the promises 
 or threats of a person erroneously believed by the prisoner to pos- 
 sess authority, the person assuming to act in the capacity of an 
 officer or magistrate, ought upon the same principle (on which con- 
 fessions to persons having authority are rejected) to be excluded. 
 The principle itself would seem to include such a case ; but 
 the point is not known to have received any judicial considera- 
 tion.' {x) 
 
 If a confession be obtained by means of any improper induce- 
 ment held out by a person who has no authority in the presence 
 of a person having authority, and with his consent, it is not admis- 
 sible. And it is not necessary that the person having such autho- 
 rity should express his consent in words ; for if he be silent he will 
 be presumed, as he did not express his dissent, to have sanctioned 
 the inducement, {y) 
 
 Upon an indictment for housebreaking, it appeared that the pri- 
 soner resided with her husband, and that a constable went to their 
 house and charged her with breaking into the prosecutor's house, 
 which she denied ; but her husband coming in shortly afterwards, 
 he told her if she knew anything about it to tell the truth ; the 
 constable, though present, made no observation, except that he 
 must take her to tlie station-house, and desired her to go np stairs 
 and put her things on ; while she was up stairs she desired the con- 
 
 46.5 
 
 Person sup- 
 posed to pos- 
 sess authority. 
 
 {x) Greenl. Ev. 258. As the question 
 turns upon the effect produced upon the 
 mind of the prisoner, and as that effect 
 must be the same, whether the party be 
 an otticer or not, provided the prisoner 
 believed him to be so, it should seem that 
 a confession under such circumstances 
 ought not to be admitted. See Reg. v. 
 Frevvin, 6 Co.x, C. C. 530, post, p. 471. 
 In considering these questions it should 
 be remembered that every person has 
 authority where a felony has been com- 
 mitted to arrest the party who committed 
 it, ante, vol. 1, p. 711 et scq. ; in this re- 
 spect, therefore, a private individual and 
 a constable stand upon the same footing, 
 and this may be well deserving of con- 
 sideration in eases where the inducement 
 is hidd out i!i the absence of the pro- 
 secutor or an officer. If a private person 
 after a felony had been committed were 
 to tell a jierson not in custody that h<^ 
 suspected him of the felony, and that if 
 he wo\ild confess he would let him go, 
 but that if he would not he would aji- 
 preheiid him, it might, it is conceived, 
 be well contended that a confession 
 obtained thereby would be inadmissible, 
 on the ground that the party had autho- 
 rity tf) api)reh('nd, and was in effect a 
 constable pro hac vice. After the recent 
 cases, an inducement by a jnivate person, 
 it should seem, can only 1)0 considered 
 as inoperative when it is given in the 
 presence of a ])erson in authority, such 
 person expressing his dissent to it, orcau- 
 tioning the prisoner against trusting to 
 it, or where it is given to a prisoner in 
 custody, no one having authority being 
 present, as if a private person were to 
 
 Inducements 
 used in the 
 presence and 
 with the sanc- 
 tion of per- 
 sons in 
 authority. 
 
 Inducement by 
 a husband in 
 the presence of 
 a constable. 
 
 advise a prisoner in gaol through the 
 grating to confess, or send a letter to him 
 to the same effect. ' The difficulty experi- 
 enced in this matter,' observes Dr. Green- 
 leaf, p. 2.59, ' seems to have arisen from 
 the endeavour to deffne and settle, cts a 
 rule of law, the facts and circumstances, 
 which shall be deemed in all cases to have 
 inffuenced the mind of tlie prisoner in 
 making the confession. In regard to 
 persons in authority there is not much 
 room to doubt. Public policy, also, re- 
 quires the exclusion of confessions ob- 
 tained Ijy means of inducements held out 
 by such persons. Yet even here the age, 
 experience, intelligence, and constitution, 
 both physical and mental, of prisoners 
 are so various, and the power of per- 
 formance so different in the different 
 persons promising, and \inder different 
 circumstances of the prosecution, that 
 the rule will necessarily sometimes fail of 
 meeting the truth of the case. But as it 
 is thought to succeed in a large majority 
 of ca.ses, it is wi.sely adopted as a rule of 
 law applicable to them all. Promises 
 and threats by private ])eisons, however, 
 not being found so uniform in their ope- 
 ration, perhaps may, with moic pro])riety, 
 be treateil as mixed (juestions of law and 
 fact ; the principle of law that the con- 
 fession must be voluntary being strictly 
 adhered to, and the question wlu'ther the 
 2)romises or threats of the private indi- 
 viduals who employed tlieni were sufTi- 
 cient to overcome the mind of the nrisnner, 
 being left in the discretion of the judge 
 under the circumstances of the ca.se.' 
 C. S. G. 
 (i/) Rex V. Fount my, 7 C. & P. 302.
 
 ICd Of Kvldcnce. [book vi 
 
 Iti.liici'incnt .st;il)l<' to cull her Imsljiind, ;iii(l tlioii iiuulc a stutoincnt as to certain 
 l.v IiiihI'iiikI ill articles of driss, wliirli slic; produced, as liaviiiff bcM-n purcliaso(l 
 I'li'or'ite'llim- ^^itli tlic iiioiicy wliicli liad been stolen. It was objected tbat wliat 
 t.flf. the prisoner said was inadmissible, as it was obtained Ity an induce- 
 
 ment held out by her husband in the j)rcsencc of the constable ; 
 and ;i.s the j)roduce of the stolen property was found in the lius- 
 band's iiouse, he wixa 2>i-'i7)i(l facie liable to account for it, and that 
 a statement made by the wife in the presence of and under the 
 coercion of the husband, by which she accused herself and excul- 
 pated him, was clearly caused by undue influence on her mind ; 
 Pollock, C. B., ' The fact of the constable Ijeing present and not 
 dissenting from what was said places the expressions used by the 
 liusband on the same footing as if they had been used by the con- 
 stable ; and I think that, as the constable was a person in autho- 
 rity, such an inducement ought to be sufficient to exclude the 
 admission. Besides, I tliink there is a great deal of weight in 
 what is urged as to the effect of the prisoner's statement being to 
 exculpate her husband, and that I ought to be careful not to 
 admit anything which may have been said in consequence of his 
 coercion.' {z) 
 Imlucement in So where two prisoners charged with murder were being con- 
 the presence yeyod in a cart, and the constable was in the cart with them, and 
 could hear all that passed, and one prisoner said to the other, ' You 
 had better speak the truth,' and the constable made no remark ; 
 Wightman, J., after consulting Parke, B,, held that a statement 
 then made was inadmissible, as the inducement appeared to have 
 the sanction of the constable who was present, and apparently 
 assented to it. (a) 
 A tliveat in So whcrc on an indictment for committing an unnatural crime 
 
 tiic presence of y;\i\^ a mare, the prisoner was found by the owner of the mare in 
 mare on which ^ stable with the mare, and his trousers undone, and the mare 
 an unnatural blccding and straining ; and a man shortly afterwards, at a house 
 offence iiad whither the prisoner had gone, said to the prisoner, ' I wish to 
 niitied. ' know what business you had in the stable ? ' he said, ' You know.' 
 The man said, ' I don't know, and have come on purpose to know, 
 and -will know before I leave, and if you don't tell me I will give 
 you in eliarge to the police till you do tell me.' The prisoner said 
 again, 'You know.' The man said, *I don't know, but, according 
 to what I could see of the mare, it is the best of my belief that you 
 had connection with her.' He said, ' I had ; for God's sake say 
 nothing about it.' The owner of the mare was close by at the time 
 this conversation took place. It was held, on a case reserved, that 
 there was a threat used ; and though at the time of the threat 
 there was no statement of the charge, yet before the confession the 
 prisoner "was told, in the presence of the owner of the mare, that 
 the charge was for having connection with the mare, which was 
 just the same as if the threat had been made by the owner him- 
 self, and he, being the owner of the mare, w^as a person in 
 such authority that a threat by him would exclude a subsequent 
 confession. The confession, therefore, ought not to have been re- 
 ceived. (6) ■ 
 Inducement go where upon an indictment for setting fire to the house of R. 
 
 (z) Ecg. V. Laugher, 2 C. & K. 225. (6) l!.g. r. Luckliurst, Dears. C. C. 
 
 (a) Kfg. V. Jlillen, 3 C'o.v, C. C. 50/. 245.
 
 CHAP. IV. § I.] Confessions and Admissions. 467 
 
 Lyford, it appeared that on the morning of the fire the prisoner, in the presence 
 who was the servant of the prosecutor, was sent for into the par- °f ^ mistress, 
 lour, in which Mrs. Lyford and Mr. Winders were ; and that Mr. 
 Winders, who was not a constable, or in any office or authority, 
 said to the prisoner, ' You had better tell how you did it ; ' and 
 that thereupon she made an answer. Patteson, J., said, ' It is the 
 opinion of the judges that evidence of any confession is receivable, 
 vmless there has been some inducement held out by some person 
 in authority : and in this case I should have received the evidence 
 of the statement made to Mr. Winders, if the inducement had been 
 held out by him alone. But here the inducement does not rest 
 with him alone, because Mrs. Lyford, who was the wife of the pro- 
 secutor and also the mistress of the prisoner, was present with Mr. 
 Winders, and must, as .she expressed no dissent, be taken to have 
 sanctioned the inducement. I think, therefore, that the induce- 
 ment must be taken as if it had been held out by Mrs. Lyford, Avho 
 was a person in authority over the prisoner, and that therefore tlie 
 evidence is inadmissible.' (c) 
 
 On an indictment for a misdemeanor in attempting to set fire to A confession 
 her master's liouse, it appeared that the prisoner, a girl aged thir- obtained from 
 teen, was a domestic servant to the prosecutor, whose wife lived thrmiX hopes 
 with him, and took her share in the management of the house, and threats 
 After the attempt to set fire to the house was discovered, the pri- ^^^'^ o^* ^^J' 
 soner's mistress, in the absence of the prosecutor, said to her, master and 
 ' Mary, my girl, if you are guilty, do confess ; it will perhaps save prosecutor is 
 your neck ; you will have to go to prison ; if William H. (another inadmissible, 
 person suspected, and whom the prisoner had charged) is found 
 clear, the guilt will fall on you.' She made no answer. The mis- 
 tress then said, ' Pray tell me if you did it.' The prisoner then 
 confessed. It was contended on the part of the prosecution that 
 the wife had no authority, real or apparent, over the prisoner, 
 so as to hold out any hope which could influence the prisoner to 
 make a false statement, in order that her Vv'iQ. miglit be spared, 
 and therefore that tlie confession was admissible. The confession 
 was admitted, and the question as to its admissibility reserved for 
 the consideration of the judges, who thought the confession ought 
 not to have been received. ((?) 
 
 So where upon an indictment for stealing the goods of two part- inducement 
 ners, the wife of one of the partners said, 'I told the prisoner it by the wife of 
 would be better for him if he would tell how we had been robbed, ""rtners^" 
 and put us on our guard. I occasionally take the management of 
 the shop. I manage the shop in my brother and husband's ab- 
 sence.' For the prosecution it was urged that an inducement by 
 the prosecutor's wife rendered a confession inadmissible only when 
 it was held out in the presence of her liusband. An inducement 
 by the wife of a constable would not vitiate a confession ; Parke, 
 B., 'The wife of a constable has no control over the prisoner. 
 This woman, being the wife of one of the prosecutors, and 
 concerned in the management of tlieir business, must be looked 
 upon as a person in authority. I think this confession inadmis- 
 sible.' (e) 
 
 (c) Kog. V. Tavloi-, 8 C. & P. 733. 329, pnM, p. 499. 
 
 (rf) Eexu. Upchiuch, K. & il. C. C. H. (c) Keg. v. Warriugham, 2 Don. C. C. 
 
 465. See Reg. v. Garner, 1 Den. C. C. R. 447, note. 
 
 II II '2
 
 408 
 
 Tlio wif« of a 
 jiorHoii, ill 
 wlioHo lionsn 
 an ofTfiift' i» 
 coniiiiittLMi, 
 iiixt who i.s 
 not tlio prose- 
 cutor nor rn- 
 gftjjcil in the 
 jirosciMilioii, 
 iv])j>rohi'n.sion, 
 or examina- 
 tion of tlic 
 oireiuliT, aiul 
 tlic olFencc not 
 lieing in any 
 way I'onncctctl 
 with tlie 
 management of 
 the house, is 
 not a jierson in 
 authority so 
 as to exclude 
 a confessioD. 
 
 Of Evidence. 
 
 [book VI. 
 
 Result of the 
 cases. 
 
 The confession 
 of a girl fifteen 
 years olJ, 
 occasioned by 
 many applica- 
 tions by the 
 prosecutor's 
 relations and 
 neighbours, 
 aniountin,' to 
 threats and 
 l)romises, is 
 not admissible. 
 
 But wlicro upon tlic tri:il of a pri.soncr lor nmrtlor, tliorc was 
 ofl'crcd in evidt'iKu; ai^^aiiist her a confession made by li<-r in the 
 presence of lier mistress to a surf,'eon, who was attendirif^ her, of 
 licr havin',' strangled her child with a thread, and placed the dead 
 body in a privy, where it wa.s found with the string round its 
 neck. Her mistress had told her before the surgeon came in that 
 ' she had better speak the truth,* and in answer she .said she would 
 tell it to the surgeon. An ol)jection was taken that any sul)- 
 se({ucnt confession was inadmissible. After consulting Cole- 
 ridge, J., Parke, B., received the evidence, being of opinion that 
 in this case her husband not being the prosecutor, nor the offence 
 in any way connected with the management of the hou.se, the 
 prisoner's mistress could not be considered as having any control 
 over the prosecution so as to raise a presumption that the induce- 
 ment held out by her would be likely to cause her to tell an 
 untruth. And upon a case reserved, after argument for the pri- 
 soner, Parke, B., delivered judgment : 'A rule has been laid down, 
 that if the tlireat or inducement is held out actually or construc- 
 tively by a person in authority, the confession cannot be received, 
 however slight the threat or inducement; and the pro.secutor, 
 magistrate, or constable is such a person, and so the master or 
 mistress may be. If not held out by one in authority, they arc 
 clearly admissible. But in referring to the cases where the 
 master or mistress have been held to be persons in authority, it is 
 only when the offence concerns the master or mistre.ss that their 
 holding out the threat or promise renders the confession inad- 
 missible. In the present case the offence of the prisoner, in 
 killing her child and concealing its dead body, was in no way an 
 offence against the mistress of the house. She Avas not the pro- 
 secutrix then, and there was no probability of herself or the 
 husband being the prosecutor of an indictment for that offence. 
 In practice the prosecution is always the result of the coroner's 
 inquest. Therefore we are clearly of opinion that the confession 
 was properly received.' (/) 
 
 The preceding cases clearly establish the position that, if a 
 threat or inducement be held out in the presence of a person in 
 authority, and he does not dissent therefrom, the effect is pre- 
 cisely the same as if it had been held out by the person in 
 authority, (g) 
 
 On a trial for setting fire to a house, it appeared that the pri- 
 soner, a girl about fifteen years old, was a servant in the pro- 
 secutor's house, and that .soon after the fire was put out Handslcy, 
 a neighbour of the prosecutor'.s, said to the prisoner, ' I doubt you 
 have set this house on fire by the candle between the laths.' She 
 said she did not. On the same day, Mrs. Bowis, who lived about 
 three hundred yards from the house of the prosecutor, and who 
 was the mother of Mrs. Blackburn, the wife of the prosecutor, 
 spoke to the prisoner in the prosecutor's house in the presence of 
 Mrs. Blackburn, wdio was very deaf, and the prisoner's mother, 
 and told her she had better confess the truth, because she believed 
 
 (/) Kog. r. Moore, 2 Den. C. C. 52-2, 
 3 C. & K. 153. 
 
 (g) Reg. r. Parker, L. & C 42, at first 
 sight may appear the other way ; but iu 
 
 all probability this decision proceeded on 
 the ground that desiring a prisoner to 
 tell the truth is not an inducement.
 
 CHAP. IV. § I.] Confessions and Admissions. 469 
 
 it was her that fired both the house and the stack, and that it 
 would be a great deal the worse for her if she did not confess. 
 The prisoner said she did not. On the same day the prisoner was 
 taken before a magistrate at Spilsby. On the next morning, 
 Mrs. Bowis saw the prisoner again on the road to her house, 
 Mrs. Bowis said to the prisoner, she should not come to her 
 house, and told her again it was her that fired both the house and 
 stack ; she said she did not do it. Soon after Handsley came up 
 and joined them, and said to the prisoner, ' Don't be so bold ; 
 perhaps you will have to go to Spilsby to-morrow.' Spilsby was 
 the place where the magistrates met. He told her that perhaps 
 somebody will come forward to-morrow that saw you do it. She 
 took her apron up and held it to her face, and said no moi'C. She 
 always denied it ; and when Handsley said she might have to go 
 to Spilsby she denied it again. He said, ' If you be guilty, go 
 along with Mrs. Bowis and beg your master's and mistress's pardon, 
 and get away, and be better in future, and we shall not seek after 
 you' ; and he said, ' Never mind your wages : I'll give j^ou a few 
 shillings out of my pocket.' And Handsley also told her it would 
 be better for her to confess. After he went away, Mrs. Bowis 
 went Avith the prisoner to Blackburn's house, and talked to her 
 about the fire all the way ; and after they got there, they went 
 out of the house, and Mrs. Bowis said to the prisoner, ' Now, 
 Sarah, you lighted the bunch of matches, and put it into the 
 thatch of the house ; ' before she said that, she told the prisoner 
 that if she went to Spilsby again she would be a great deal Avorse 
 off, and she said to her several times, both going along the road to 
 the prosecutor's house, and also in the house, and also when she 
 spoke to her out of doors, that it would be a great deal better for 
 her if she would confess, and a great deal worse for her if she did 
 not confess. The counsel for the prisoner objected to evidence 
 being given of what the prisoner said, on Mrs. Bowis charging 
 her as before stated, on the ground that after these promises and 
 threats had been held out to her, her answer could not be received 
 unless she had a caution. For the prosecution it was contended 
 that her answer miglit be received, because Handsley was neither 
 a constable, nor did he stand in any relation to the prosecutor ; 
 and though Mrs. Bowis was the mother of the prosecutor's wife, 
 yet that promises and threats made by a person standing in 
 that situation were not sufficient to exclude a confession. Lit- 
 tledale, J., allowed the evidence to be given, but reserved the 
 question for the opinion of the judges, whether it ought to have 
 been received. On Mrs. Bowis saying to the prisoner, * Now, 
 Sarah, you lighted the bundle of matclies, and put it into the 
 thatch?' the piisoner said, 'Yes, I did.' Mrs. Bowis then told 
 Mrs. Blackburn, Avhat had passed, and Mrs. Blackburn then came 
 out, and then Mrs. Bowis, in the presence of ^Irs. Blackburn, 
 asked the prisoner what she did it for ; whether it w-as for any- 
 thing against the family ? She said ' No.' Mrs. Blackburn asked 
 if anyone persuaded her to it? She said 'No;' she said she 
 had no malice. The jjrisonorin her defence asserted her innocence, 
 and said that Mrs. Bowis said that if she wouKl confess to it she 
 should have her liberty, and she added that she did it on purpose 
 to get her liberty, and that they frightened her to do it. The
 
 470 
 
 Of Evidence. 
 
 i;o()K VI. 
 
 Indiincnicnls 
 liy iicrsoiia 
 not ill autlio- 
 ritv. 
 
 jury siiid tliuy fmind the prisoner guilty with her own confession ; 
 l)uf Littlecialu, J., told them they must find her either guilty or 
 nut guilty, and then they gave a verdict of guilty ; and all the 
 judges, upon a case reserved, were unanimously of opinion that the 
 confession ought not to have been received, and tliat the conviction 
 was l)ad. (h) 
 
 With regard to the persons whose inducements will not exclude 
 a confession : the result of these cases seems to be, that a con- 
 fession is not inadmissible, although made after an exhortation, or 
 admonition, or other similar influence, proceeding at a prior time 
 from some one who has nothing to do with the apprehension, 
 })r<'sccutiou, or examination of the prisoner : (i) for a promise 
 made by a person who interferes without any authority of this 
 kind is not to be presumed to have such an effect on the mind of 
 the prisoner as to induce him to confess that he is guilty of a 
 crime of which he is innocent. 
 
 The wife of the constable is not a person in authority, (j) 
 In a case of murder a surgeon stated that he had held out no 
 threat or promise to induce the prisoner to confess ; but a woman 
 Mho was present said that she had told the prisoner she had 
 better tell all ; and then the prisoner made certain confessions to 
 the surgeon. It was objected that, as the confession was made 
 after an inducement held out, it could not be received in evidence; 
 but Park, J. A. J., after consulting Hullock, B., held that as no 
 inducement had been held out by the surgeon, to whom the con- 
 fession was made, and the only inducement had been held out by 
 a person having no authority, it must be presumed that the con- 
 fession to the surgeon was a free and voluntary one. If the pro- 
 
 (h) Rex V. Simpson, R. & M. C. C. R. 
 410. The gi-ounds upon wliich this do- 
 cision procooded are not mentioned in the 
 report, and the real import of the case 
 does not appear to be correctly abstracted 
 in the text books, as observes Mr. Joy, 
 p. 9 ; and after abstracting the case he well 
 observes, ' that it was in the prosecutor's 
 house, and in the presence of the prisoner's 
 mother, and of the prisoner's mistress, a 
 person in authority over her, and under 
 her implied sanction, that the prisoner 
 was told, in the first instance that it would 
 be better for her to confess. So in the 
 conversation that immediately elicited the 
 confession, the inducement was held out 
 ill the i)rosecutor"s house, [this is an 
 error, it was after " they went out of the 
 house,"] and although it does not appear 
 distinctly whether the prosecutor or his 
 wife were then present, [it is clearly to 
 be inferred that they were not present, 
 for after the prisoner said " I did," ilre. 
 Bowis told iMis. I'.lackburn, and she 
 "^/ifx came out "J the intlueuce causi-d 
 by the inducement held out on the preced- 
 ing morning, in the presence of the pro- 
 secutor's wife, and in his house, may per- 
 haps be considered to have contiimed,* 
 Joy. 10 and 11, and he refei-s to Rex r. 
 Upchurch, aiilr, p. 467, and Reg. r. Tay- 
 lor, aiiU, p. 467, to show that tlie mis- 
 tress is a pei-son in authority. It may be 
 
 observed, also, that Patteson, J., held in 
 Reg. V. 'Taylor, that an inducement held 
 out by a person in the presence of the 
 prisoner's mistress must be taken as if it 
 had been held out by the unstress herself: 
 from which it may be inferred that that 
 very learned judge considered the person 
 holding out the inducement as the agent 
 for that purpose of the mistress. In that 
 case, as the prosecutrix expressed no dis- 
 sent, slie was taken to have sjinctioned tlie 
 inducemeut ; so iu the present case the 
 same must be inferred as to the induce- 
 ment first held out iu the presence of the 
 mistress ; and as by her conduct in the 
 latter part of the transaction the prose- 
 cutrix sanctioned wliat Mrs. Bowis had 
 done in her absence, the learned judges 
 may have thought that ilrs. Bowis w;is 
 the agent of the prosecutrix for the pur- 
 pose of discovering the guilt of the pri- 
 soucr. If a person were expressly em- 
 ployed by the prosecutor to discover the 
 person who had committed a felony, there 
 seems good reason why he should be 
 considered as a person having so much 
 to do with the apprehension and prose- 
 cution as to render a confession obtained 
 by his inducements inadmissible. See 
 Rex I". Stacey, ante, p. 464. C. S. G. 
 
 (0 R. !•. Row, R. & R. 153. R. r. 
 Tvler, 1 C. & P. 129. 
 \J) Rex r. Hard wick, 1 Phill. Ev. 408.
 
 CHAP. IV. § I.] Confessions and Admissions. 471 
 
 mise had been held out by a person having any office or authority, 
 as the prosecutor, constable, &c., the case would be different ; but 
 here, some person having no authority of any sort officiously says, 
 ' You had better confess.' No confession follows, but some time 
 afterwards, to another person, the prisoner, without any induce- 
 ment held out, confesses. The learned judge added, that he and 
 Hullock, B., had not the least doubt that the evidence was admis- 
 sible. (/.•) 
 
 The prisoner was indicted for placing a piece of iron on a InJuccment 
 railway, and a platelayer in the service of the company, but who servant ^^^ 
 was not employed by any of his superiors to see the prisoner, had 
 told him that it would be a good deal better for him if he owned 
 to it. The prisoner knew that the platelayer worked on the line. 
 Cresswell, J., ' I am disposed to think the statement of the pri- 
 soner is receivable, the witness not being a person having any 
 authority to make any promise ; still he was in a position that 
 might reasonably lead the prisoner to believe he had ;' and there- 
 upon the counsel for the prosecution declined to ask as to the 
 statement of the prisoner. {I) 
 
 There has been a difference of opinion among the judges whether Confession to 
 a confession made to a person who has no authority, after an fn^authorUy 
 inducement held out by that person, is receivable : some of the after induce- 
 judges thinking it receivable, and others thinking it is not so. (m) ment by such 
 And several cases have occurred, in which confessions made to p^""^""- 
 persons without authority, in consequence of inducements held 
 out by such persons, have been rejected, {ii) But it is said to be 
 the opinion of the judges that 'evidence of any confession is re- 
 ceivable, unless there has been some inducement held out by some 
 person in authority.' (o) 
 
 (k) Rex V. Gibbons, 1 C. & P. 97. from being received in evidence ; bnt if 
 
 {I) Reg. V. Frewiu, 6 Cox, C. C. 530. the statement bo made to the person wlio 
 
 The prisoner was not defended. The makes the promise, I think it ought not to 
 
 marginal note treats this as an actual be received.' Tlie same distinction is 
 
 decision. also adverted to in a note to Rex v. 
 
 (ill) Per Parke, B., in Rex v. Spencer, Gibbons, supra. For this distinction, 
 
 7 C. & P. 776. however, there seems no sufficient reason. 
 
 (n) In Rex v. Dunn, 4 C. & P. 543, a The correct inquiry in every case is, 
 witness proved that the prisoner wished to whether the inducement was sucli as to 
 sell a stolen book to him, and that he told lead the prisoner to suj)pose that it would 
 him he had better tell where he got it. be better for him to confess himself guilty 
 Bosanquet, J., 'Any person telling a of a crime he did not commit. If it was, 
 prisoner that it will be better for him to then a statenientjnade under its inlluence, 
 confess will always exclude any confes- whether to the party using the induce- 
 sion made to that person. Whether a ment, or to another person, would be 
 prisoner's having been told by one person, inadmissible. At the same time, it must 
 that it will be better for him to confess, ever be a circumstance deserving of con- 
 will exclude a confession subsequently siileration, in conjunction with others, 
 made to another person, is very often a that thi^ prisoner did not make the con- 
 nice question ; but it will always exclude fession to tlie party using the inducement 
 a statement made to tlie same person.' at tlie liiin', but made it afterwards to 
 In Rex I'. Slaughter, ibid, note («), the another party ; as tiiat tends to show that 
 same learned jmlge rejected a confession he was not under the inthience of the 
 made by the prisoner to one of his fellow- inducement wlien he confessed ; and this 
 workmen, who had told liim it would bo is the view which the court seems to have 
 better for him to confess. In Kex v. adopted in Rex v. (Jibbons. See also Mr. 
 Arundel, Gloucester Summer Assizes, Joy's observations, p]i. 2i.>, 27. V. S. G. 
 183(1, the same learned judge ruled the (o) Per Patteson, .1., in Heg. r. Taylor, 
 same way, saying, ' if an unautiiorised 8 V. & P. 734. See H. r. Moore, 2 
 person makes a promise, it will not pre- Den. C. C. 526, per Parke, B. 
 vent a statement made to another person
 
 472 
 
 Of Evidence. 
 
 [book VI. 
 
 A cdiifosxidii 
 olitaiiicil witli- 
 (iiit lliicnt or 
 liroiiiiso from 
 u Ixiy lourtccii 
 years old, l)y 
 ([ucstioiis juit 
 liy a ]>olico 
 olliror in wliosfi 
 custody tlic 
 lioy was on a 
 cluirgc of 
 IVIony, and 
 when lie had 
 liad no food 
 for nearly a 
 day, laid 
 rightly re- 
 ceived. 
 
 Confessions 
 obtained by 
 questions put 
 by constables. 
 
 (r) CoDj'csninvs rlirifcd hy Qnrstions. 
 
 As to the coiniiiil-iiiig m.'i^i.stiatc ])iittin;,^ «|ueKti()ii.s to the 
 accused, sec post, ]). oO.S. 
 
 In a case wliere Miller, llie chief officer of the police at Liver- 
 ])o()l, stated, that on the l(Sth of November the prisoner, a Ijoy of 
 fourteen years of age, was apprehended by, his directions, without 
 any warrant, between twelve and one o'clock, and that he was 
 ciiiicd to the police office about one o'clock. The magistrates 
 were then sitting at a very short distance, and continued sitting 
 till between two and three, and till tlie business presented to them 
 was finislied ; but tlie prisoner was not carried before them, be- 
 cause the police officer was engaged elsewhere. The officer ordered 
 the prisoner to Bridewell on his own authority, between four and 
 five o clock ; and l)etween five and six o'clock he told the prisoner 
 that, in consequence of the falsehoods he had told, and the prevari- 
 cations he had made, there was no doubt but he had set the 
 premises on fire ; and he therefore asked him if any person had 
 been concerned with him, or induced liim to do it? The prisoner 
 said he hadjiot done it. The police officer replied that he would 
 not have told so many falsehoods as he had if he had not been 
 concerned in it, and he again asked him if anybody had induced 
 him to do it ? The prisoner then began to cry, and made a full 
 confession. In speaking of the falsehoods, the police officer referred 
 to an examination of the prisoner he had himself made. The 
 prisoner was taken before he had dined, and had had no food from 
 the time he was apprehended till after his confession. Bayley, J., 
 thought it deserved consideration, whether a confession so obtained, 
 when the detention of the prisoner was 'perlia/ps illegal, and when 
 the conduct of the officer w^as calculated to intimidate, was admis- 
 sible in evidence, and reserved the point for the opinion of the 
 judges, a majority of whom held the confession rightly received, 
 on the ground that no threat or promise had been used, {p) 
 
 Where rumours had been afioat that the prisoner had been 
 delivered of a child, but the only ground for such suspicion was 
 that she had been observed up to a certain time to increase in 
 size, and had afterwards recovered her usual form ; and in conse- 
 quence of these rumours a police officer went to her, charged her 
 with having been recently delivered, and with having murdered 
 the child, or at least concealed its birth. The result of his ques- 
 tioning was that she made a statement, which he detailed. Erie, 
 J., made strong observations on the impropriety of questioning the 
 prisoner at the time when there was no proof of any crime having 
 been committed, but the evidence was left to the jury, (q) 
 
 (p) Eex V. Thoruton. P. k M. C. C. 
 E. 27. Best, C. J., Bailey, J., and Hol- 
 royd, J., dissaituirtibus. Keg. v. Kerr, 8 
 C." & P. 176. Gibney's case, Joy, 36. 
 I?eg. V. Hughes, ibid. 39. Although 
 there can be no doubt that confessions 
 elicited by questions put by otficers are 
 admissible, still there can be equally little 
 doubt tliat it is no part of the duty, or 
 rather that it is a breach of the duty, of 
 nn officer to put questions to prisoners in 
 
 their custody, and learned judges have in 
 man}' cases reprobated such conduct in 
 the strongest terms ; and in a recent case, 
 where it appeared that a constable was 
 in the practice of interrogating prisonere 
 in his custody, Patteson, J., threatened 
 to cause him to be dismissed from his 
 office. Hill's case, Kosc. Cr. Ev. 45. 
 lug. V. Hassett, S Cox, C C. 511. 
 
 {q) Keg. V. Benimau, 6 Cox, C. C. 38S. 
 It should, however, be borne in mind in
 
 CHAP. IV. § I.] Confessions and Admissions. 473 
 
 In one case in Ireland where a constable arrested a prisoner, 
 and having given the usual and proper caution (r) proceeded to 
 search his house, and having found the prisoner's coat, which was 
 wet from washing, asked him why he had washed his coat ? The 
 Chief Baron ruled that the answer could not be given in evidence, 
 and said that where a constable arrests a party he ought to abstain 
 from asking questions ; he ought to leave that duty to the magis- 
 trate, who alone has the power to reduce to writing what is said 
 by the prisoner, (s) 
 
 So a confession obtained by questions put by the prosecutor's Questions put 
 wife, (t) or by persons who are neither constables or officers, (u) or ^jy otl'^r 
 by a fellow prisoner, (v) is admissible. So where it was proposed r^'^^°°^- 
 on the part of the prosecution to prove what had been said by the 
 defendant in his examination before a committee of the House of 
 Commons, which the defendant had been compelled to attend ; 
 and on the part of the defendant it was objected that, since this 
 statement had been made under a compulsory process from the 
 House of Commons, and under the pain of incurring punishment 
 as for a contempt of the House, the declarations were not volun- 
 tary, and could not be admitted for the purpose of criminating the 
 defendant ; Abbott, J., overruled the objection and admitted the 
 evidence, (iv) 
 
 if) l^^^e'i Prisoner fi Examination on Oath Evidence. 
 
 If the written examination of a prisoner taken before the com- 
 mitting magistrate purport to have been taken on oath, it is not 
 admissible. An examination of a prisoner taken before a magis- 
 trate was written under the following words, which except as 
 to the name were printed, ' The examination of — Homage, taken 
 on oath before me, &c.,' and was signed by the magistrate ; and Le 
 Blanc, J., rejected the examination, because it purported to have 
 been taken on oath, and would not permit a witness to be examined 
 for the purpose of showing that no oath had in fact been adminis- 
 tered to the prisoner, saying that he could not allow that which 
 had been sent in under the hand of the magistrate to be disputed, (x) 
 
 these cases, that every peace officer is 
 justified in api)rehending on reasonable 
 suspicion, though no felony ha'i been coifi- 
 mittcd ; and that in cases of suspicion it 
 niay fref[uently be perfectly right for a 
 peace officer to ask (jucstions of a sus- 
 pected person not in custody, provided 
 suL-h questions lie fair and adajited to 
 the particular circumstances. 
 
 (;•) It is not stated what it was. 
 
 (.s) Reg. V. liodkin, 9 Cox, C. C. 403. 
 This case seems to deserve reconsidera- 
 tion. 
 
 (t) Kex V. Upchurcli, ante, p. -167. 
 
 [u) ]!ex V. Wild, ante, \). 444. 
 
 (v) Eex V. Sliaw, G C. & 1'. 372. 
 
 \iu) Kex r. Merceron, 2 Stark. N. P. C. 
 366. ' 1 think there mu.st be some mis- 
 take in that case ; the evidence must have 
 been given without oath ; and before a 
 commit tet! of in(|uiry, where the witness 
 would not be liound to answer.' Per 
 Lord Teuterdeu, C. J., in Kex v. Gilhani, 
 
 P. & M. C. C. R. 203, on Rex v. Mer- 
 ceron being cited. See also in Rex v. 
 Garbett, 2 C. & K. 483, furtlier remarks 
 on this case. So if a witness answers 
 questions to which he might have de- 
 juurred, as subjecting him to jienalties, 
 liis answers may be used against him for 
 all legal purjioses ; and tlierefore, in an 
 action on .'j Ceo. 2, c. 30, s. 21, tiie de- 
 fendant's examination before tlie commis- 
 sioners was allowed to be given in evi- 
 dence, to show that by liisown confession 
 lie had concealed the jiroperty of the 
 bankrupt. Smith r. Beadncil, 1 Campl). 
 30. See also StockHeth v. De Tastet, 4 
 Campb. 10. 
 
 (;r) Rex v. Smitli, 1 Stark. R. 242. 
 See R. r. Pikesley, !» C. & P. 124, Parke, 
 B. But it seems, although there are cases 
 to the contrary, tliat parol evidence 
 might be given to sliow what the pri- 
 soner's statement was. Reg. r. Whecley 
 8 C. & P. 250 ; Reg. v. Owen, 9 C. & P. 
 
 A prisoner's 
 examination 
 which purports 
 to have been on 
 oath before the 
 committing 
 magistrate, is 
 not admissible.
 
 474 Of Emdence. [rook vi. 
 
 So an cxainiiiiitiori hc^'iniiiiig, ' Tlii.s deponent saitli,' has heen 
 rejuutuil, as that itnpliud that the .statement was made iipun 
 oath. (s) 
 
 The f:jn)und on whicli these decisions proceeded was, that the 
 account ^Mvcn l)y a prisoner Ijefore a ma<^istrate ouglit not to he 
 upon oath ; and if the prisoner has been sworn, his statement can- 
 not 1)0 received, (f) 
 
 But altliough it is (piite correct to hold that an examination of a 
 prisoner in writing purporting to he taken on oath is inadmi.ssible, 
 because such an examination is apparently taken in direct violation 
 of the statute, yet it seems clearly erroneous to hold that, when in 
 point of fact the examination has been regularly taken in accord- 
 ance with the statute, no evidence of it should be admissible, be- 
 cause by accident or negligence it has been stated to be upon 
 oath. Where in direct violation of the statute no examination 
 in writing has been taken, evidence is admis.sible of what the pri- 
 soner said, {(}) and a fortiori such evidence ought to be admitted 
 where the statute has been substantially complied with, but an ac- 
 cidental error, in no way tending to the prejudice of the prisoner, 
 has occurred. It is submitted, therefore, that where the examina- 
 tion on the face of it erroneously states the prisoner to have been 
 examined on oath, it should be permitted to the prosecutor to 
 prove that that was not the fact, and on such proof to give 
 evidence of what the prisoner said before the magistrate. 
 
 Upon an indictment for administering poison, it appeared that 
 on the day on Avhich the prisoner was committed, she and .several 
 others were summoned before a magistrate, and at a time when 
 she was under no charge, and when there was no specific charge 
 against any person, she and the other persons were examined 
 upon oath touching this poisoning, and their statements taken down 
 in writing ; but on the conclusion of the examination, the prisoner 
 was committed for trial on this charge. It was proposed to put in 
 the examination of the jirisoner, and iica" v. Tubby (e) was cited. 
 Gurney, B., 'This case is quite distinguishable from the case cited. 
 Under the circum.stances of that case I should have been disposed 
 to agree with my brother Vaughan. I remember in the case of 
 Rex V. Walker, which was a case of forging a will, I gave in 
 evidence an affidavit made by one of the prisoners in the suit in 
 Doctors Commons, and the prisoner was convicted and executed. 
 But this being a deposition made by the pri.soner at the same time 
 as all the other depositions on which she was committed, I think it 
 is not receivable. I do not think this examination was perfectly 
 voluntary.' (/) 
 
 83; Kcx r. Rivers, 7 C. & P. 177; to appear, suspicion attached to her ; and 
 Rex r. Bentley, 6 C. kV. 148, and MSS. the case bears a strong resemblance to 
 C. S. G., jiost, s. 2 of this chajiter. that of an individual examined on oath 
 {z) Rex i: Shellswell, Oxford Spr. Ass. under a charge.' This is inaccurate, and 
 1828, Park, J. A. A. MS.^. C. S. G. neither warranted b}' the report in C. 
 (c) Rex f. Smith, 1 Stark. N. P. C. & P. nor my note of the case, and I was 
 242. As to examinations by magistrates counsel in it. Tlie prisoner was sum- 
 generally, see post, p. 41*9. moned in the ordinary way as a |x>rson 
 {({) See the cases, ]>os/, p. 485. who could give some evidence touching 
 (c) 5 C & P. 530, post, p. 477. the matter, and not because any suspicion 
 (/) Rex v. Lewis, 6 C. & P. 161, and attached to her. See the note (0 infra. 
 MSS. C. S. G. Mr. Phillipps, vol. 1, p. C. S. G. 
 403, observes, ' When she was .summoned
 
 CHAP. IV. § I.] Confessions and Admissions. 475 
 
 Upon an indictment against a father and daughter for receiving 
 stolen goods, it appeared that the daiighter had been examined 
 upon oath as a witness before the committing magistrate, and it 
 was proposed to ask what she then said in the presence of her 
 father. Gurney, B., ' I tliink you cannot do that. We cannot 
 hear anything she said before the magistrate when she was a wit- 
 ness ; if after having been a witness you make her a prisoner, 
 nothing of what was said then can be admitted in evidence.' (i) 
 
 The prisoner being in Bridewell sent for a magistrate, and asked 
 what was the charge against him, which the magistrate told him. 
 Nothing further passed. About an hour afterwards the prisoner 
 again sent for the magistrate, and made an information, which was 
 produced. The magistrate made no threat, and held out no in- 
 ducement to the prisoner, and did not caution him against crimin- 
 ating himself. He was sworn, and put his mark to it. The 
 magistrate did not inform the prisoner that his information would 
 be used against him. The magistrate thought the prisoner would 
 be admitted as a Crown witness, and the prisoner might have 
 been under that impression also. The prisoner ' was in as a Crown 
 witness.' The prisoner swore his information again, but not in the 
 presence of the other prisoners, but he refused to support his in- 
 formation, or appear as a witness. The magistrate had refused to 
 admit the prisoner to bail. It was objected that the information 
 was inadmissible as a confession, because the usual caution was 
 not given, and an inducement was used ; and, further, that its 
 being on oath rendered it inadmissible ; and upon a case reserved, 
 it was held that the information ought not to have been received 
 in evidence. ( j) 
 
 With reference to an examination of a person charged as a 
 prisoner taken upon oath, Mr. Phillipps observes, ' As an examina- 
 tion, it is irregular : the modern statute, which regulates the pro- 
 ceedings of magistrates on criminal charges brought before them, prisoner on 
 makes a distinction between tlie examination of a prisoner and °''^*^ 
 the informations of those who make the charge ; the informations, 
 but not the examinations of the prisoner, being especially required 
 to be on oath. Since the statement upon oath cannot be received 
 as a judicial proceeding or formal examination, is it admis.sible as 
 a confession ? There are objections to it also in that form ; the 
 oath imposed on the prisoner, especially whilst in custody, is likely 
 to operate as a constraint, or as a kind of compulsion ; the state- 
 ment therefore cannot be considered as completely free and volun- 
 tary, (k) 
 
 Observations 
 by Mr. Phil- 
 lipps on exa- 
 minations of 
 
 (i) Rex V. Davis, 6 C. & P. 177, and 
 MSS. C. S. G. Mr. Pliillii)ps, vol. 1, 
 p. 104, olisi-rves, 'It docs nut appear from 
 the report that this individual was taken 
 as a prisoner before the niaj^istrate ; but 
 there were cirfumstances sniiiciont to 
 raise a suspicion of guilt, and sullicient 
 also to show that the statement was not 
 perfectly voluntary.' It should seem, 
 from the fact of her being examined as a 
 witness, that she was not taken before the 
 magistrates as a prisoner ; and as to the 
 circumstances sullicient to raise a sus- 
 picion of guilt, none such are stated to 
 have been proved before the magistrate, 
 either before or at the time when her ex- 
 
 amination was taken ; and assuming that 
 such suspicion might exist in the minds 
 of the magistrates or others, or even that 
 the prisoner miglit be aware that tiicre 
 was such suspicion, that was not the 
 ground of the decision, but that the pri- 
 soner had been examined on oath as a 
 w itness ; and aficr the decision in Keg. 
 V. Wheatcr, jmt, ]i. •17'.», it may perhaps 
 be doubted whctliei- this was a sulli- 
 cient reason for rejecting the deposition. 
 C. S. G. 
 
 U) Reg. V. M'Hugh, 7 Cox, C. C. 483. 
 C. S. G. See H. r. Gillis, 11 Cox,C. C. 69. 
 
 (A) 1 Phill. Ev. 40-2. Assuming that 
 an oath may be likrli/ to operate as a con-
 
 476 
 
 I'riHoner ex- 
 amined oil 
 ontli l>y iiiiH- 
 iiiko, iinil 
 error cor- 
 rcotcd. 
 
 Of Evidence. 
 
 [book VI. 
 
 Statement liy 
 prisoner not 
 under oliarge 
 or suppioiou 
 on oath as 
 witness against 
 another. 
 
 ir.'i prisoner i.s sworn and examined by a magistrate by mistake, 
 and liis deposition is destroyed, and an examination tlicn taken in 
 llic regular way, it is admissible. On an irubctment for arson against 
 two prisoners, it a[)peared tbat when one of tlie prisoners was 
 iirst, brought l)el'orc the magistrate, it was thought that he liad 
 appeared as a witness, and by mistake he was sworn ; bnt it being 
 (hscovered that he was one of tlie aecusod persons, the deposition, 
 which liad been commenced, was torn, and the prisoner subse- 
 quently made a statement, after having been cautioned by the 
 magistrate ; and that statement was offered in evidence. It was 
 objected that the whole examination before the magistrate was 
 bnt one transaction, and that the oath was binding during the 
 whole inquiry. Garrow, B., 'What was first taken down and 
 afterwards destroyed does not prejudice the prisoner. We do not 
 know what he said : it is as if it never existed : ' and the state- 
 ment was received. {I) 
 
 The principle of these decisions docs not apply to a statement 
 made by a prisoner, in an examination Ijcfore a magistrate, when 
 lie was not in custody, but examined against another person on a 
 distinct charge ; provided, of course, there has been no induce- 
 ment given to confess, and no promise of favour or of a reward for 
 information ; a statement so made by one in his capacity of wit- 
 nes.s, who was perfectly free to refuse answering any questions 
 that had a tendency to expose him to a criminal charge, seems to 
 be clearly admissible, {in) And it may be laid down generally 
 
 stiaiiit, there seems no reason whatever 
 ■why, where a prisoner's examination lias 
 lieen taken upon oath, that fact should 
 oiicrate further than to raise a jirimd 
 facii' presumption that the statement was 
 not voluntary, and to throw the onus of 
 showing that it was s]iont.*xneous upon 
 the prosecutor. Suppose, after the state- 
 ment of a prisoner had been regularly 
 taken without an oath, he were himself 
 to volunteer to .swear to the tnith of it, 
 and the magistrate were incautiously to 
 permit him so to do, it would be difficult 
 to assign any good reason why such a 
 statement .should not be admissible. In 
 Eeg. V. AVheater, post, p. 479, Lord 
 Abinger, C. 15., said, in the presence of 
 all the judges, 'I understand, if a prison- 
 er's examination be on oath, it shall not 
 be received in evidence without reference 
 to a duress or threat ; 1 sec no 7-cason jor 
 it ; in principle the answer may be quite 
 voluntary.' It should be remembered 
 that a magistrate has no authority to ad- 
 minister such an oath, and therefore the 
 prisoner has a right to refuse to take it. 
 in Eeg. V. "Wheater, on Kex r. Tubby, 
 i^st, p. 477, being cited, Aldersou, B., 
 observed, ' It does not appear there that 
 the oath was a lawful one :' from which, 
 perhaps, it may be inferred that the very 
 learned Baron considered that a distinc- 
 tion might be drawn between a lawful 
 and an unlawful oath ; and it is appre- 
 hended that such a distinction might well 
 be drawn, as in the one case the justice 
 has the power to enforce by commitment 
 
 an answer to any legal questions ; iu the 
 other he has no such power. And see 
 Kex V. Shaw, 6 C. & 1'. 372. The first 
 mention of the mode of taking prisoners' 
 examinations is in Kelyng, p. 2, where 
 the judges' orders direct, ' that all justices 
 of the peace do take examinations of 
 the felons without oath.' The same is 
 stated in B. N. P. 242. The first case 
 where an examination was rejected on 
 the ground that it })urported to be on 
 oath is Rex r. Smith, 1 Stark. R. 242, 
 ante, p. 474. There is no doubt that an 
 examination of a jirisoner taken on oath 
 is irreguliU', and therefore inadmissible 
 as an ixamination under the statute, and, 
 perhaps, the rejecting the examination of 
 prisoners on oath altogether may have 
 originated in not distiIlgui^hing between 
 an examination admissible under the 
 statute, and admissible as evidence at 
 common law. The point seems to have 
 been taken for granted in all the cases, 
 and never solemnly discussed. C. S. G. 
 
 (?) Kex r. Webb, 4 C. & P. 564. 
 
 (m) 1 Phill. Ev. 404. In R. v. Coote, 
 42 L. J. Priv. C. Ca. 45, Sir R. P. Collier, 
 whilst delivering the judgment of their 
 lordships, and after referring to many 
 cases, on the subject, said, ' From these 
 cases to which others mi^ht be added, 
 it results, in their lordships' opinion, 
 that the depositions on oath of a witness 
 legally taken are evidence ag-.unst him 
 should he be subsequently tried on a 
 criminal charge, except so much of them 
 as consists of answers to questions to
 
 CHAP, TV. § I.] Confessions and Admissions. 477 
 
 that a statement upon oath by a person not being a pvisoner, 
 and when no suspicion attached to him, the statement not being 
 compulsory, nor made in consequence of any promise of favour, is 
 admissible in evidence against him on a criminal charge, {n) Thus 
 where upon an indictment for forgery, it appeared that, before the 
 prisoner was either charged with or suspected of having committed 
 any offence, one Shearer had been examined on a charge of forgery, 
 and that the prisoner was called as a witness against Shearer on 
 that occasion, and sworn to a deposition, which was proposed to 
 be read against the prisoner ; and it was objected that the deposi- 
 tion, being a statement made upon oath, could not be received as 
 evidence against the prisoner ; Parke, J., said, ' I think I ought to 
 receive this evidence. The prisoner was not, at the time when he 
 made this deposition, charged with any offence : and he might on 
 that, as well as on any other occasion, when called as a witness, 
 have objected to answer any questions which might have a ten- 
 dency to expose him to a criminal charge ; and not having done so, 
 his deposition is evidence against him.' (o) So where on an indict- 
 ment for burglary it was proposed to read a statement made upon 
 oath by the prisoner, at a time when he was not under any sus- 
 picion, and it was objected that it was a violation of the rule of 
 law that a prisoner should not be sworn ; Vaughan, B., said, ' I 
 do not see any objection to its being read, as no suspicion attached 
 to the party at the time. The question is, is it a statement of a 
 prisoner upon oath ? Clearly it is not, for he was not a prisoner 
 at the time when he made it.' {p) 
 
 So where on an indictment for threatening to accuse of an in- 
 famous crime, it appeared that the prisoners had made a cliarge 
 against the prosecutor, and been examined before the magistrate 
 as witnesses against the prosecutor, and their depositions contained 
 both their examinations and cross-examinations ; their answers on 
 cross-examination were not only contradictory in themselves, but 
 quite inconsistent with each other. It was held that the examina- 
 tions were admissible, but that the cross-examinations were not, as 
 there was not any such connection between these answers and the 
 particular charge in this indictment as to make them relevant, {q) 
 
 wliicli he lias objected as tending to (^) Rex v. Tidiby, 5 C. ct P. 5.30. The 
 
 criininato liini, but which he has been dejiosition was not lead, but witiuh'awu 
 
 improperly co)n]ielled to answer. The by the counsel for the Crown, a.s it did 
 
 exception depends upon the ])riuciple not contain auytliiug material. In Keg. 
 
 nemo teiutur scipsum accusarc, but docs v. Wheater, infra, Vau_i;han, J., said, 
 
 not apply to answers given without ob- ' In Rex v. Tubby, what reason is there 
 
 jection, which are to be deemed volun- for saying that there was any restraint ou 
 
 tarj'.' In another part of the judgment the person making the statement >. ' 
 
 Sir R. P. Collier said, ' With rc-^pfct to (7) Reg. v. Brayneli, 4 Cox, C. C. 402, 
 
 the objection that Coute, when a witness, Williams, J. the jiarlieulars of the 
 
 should have been cautioned in the man- cross-examinations are not stated. See 
 
 mer in which it is directed by statute my note on this decision, rt»^-, p. 2C0. To 
 
 that persons accused before magistrates which it may be added that the examina- 
 
 arc to be cautioned, it is enough to ^say tion and cross-examination formed one 
 
 that the caution is, by the terms of the document, and, according to the general 
 
 statute, applicable to accused persons rule, the whole ouglit to have been read, 
 
 oidy, and has no application whatever to See Goss 1: <^)uinton, [i .M. & Gr. 825, 
 
 witnesses.' where an examination of a bankrupt con- 
 
 (n) ibid. Sec R. v. Colmer, 9 Cox,C. tained his examination in chief and cross- 
 
 C. 506; R. r. P.ateman, 4 F. & F. 1068. examination, and in the latter a e<i|)y of an 
 
 (0) Rex V. Haworth, 4 C. & P. 254. agreement wasini'orporated,and it was held 
 
 Greeuw. Stat. 138 ?t. that the examiuatiou was one entire thing,
 
 478 
 
 Of Evidence. 
 
 [I'.OOK VI. 
 
 Where n wit- 
 ncHM claims 
 the ))rotcction 
 
 of til'' irt 
 
 on the gruiiiul 
 that nn 
 answer may 
 criminate him, 
 anil is com- 
 pelled to 
 answer, the 
 aus>ver is 
 inadmissible. 
 
 A compulsory 
 examination 
 of a Imnkriipt 
 is admissible 
 against him. 
 
 So when' C'liitllcy uiid ( 'mnniin.s were indicted for iii;di(;i(jU3ly 
 ■Wounding, und ut tlic cxajnination before the magistrates Clii<lley 
 alono was charged w illi coianutting the offence, and Cuinniin.s came 
 forward vohmtarily, and gave evidence exculpating Chidley, and 
 Confessed that lie liad inflicted the injuries upon the prosecutfjr, 
 and upon this he and Chidhy were committed ; it was held that 
 Cummins' deposition was admissible. (?•) 
 
 On an indictment for forging the acceptance of a bill of ex- 
 change, ' Accepted, payable at Masterman & Go's., London, Wil- 
 liam Booth,' it appeared that the prisoner had been called as a 
 witness for Booth in an action brought against him on that bill, 
 and in cross-examination he made several statements tending to 
 show that the acceptance was a forgery without objection, and 
 afterwards cither put himself in the hands of the court or de- 
 clined to answer questions put to him, but he was compelled to 
 answer these questions, and this examination of the prisoner was 
 proposed to be given in evidence on the trial for forgery ; the 
 counsel for the prisoner objected to those parts of the cross-ex- 
 amination being read which followed the prisoner's declining to 
 answer, and applying to the court for protection. The objection 
 was overruled, and, on a case reserved, it was held that if a wit- 
 ness claims the protection of the Court, on the ground that the 
 answer would tend to criminate himself, and there appears rea- 
 sonable ground to believe that it would do so, he is not compellable 
 to answer ; and, if obliged to answer notwithstanding, what he 
 says must be considered to have been obtained by compulsion, and 
 cannot be given in evidence against him ; and that it made no 
 difference in the right of the witness to protection that he had 
 chosen to answer in part, as he was entitled to it at whatever 
 stage of the inquiry he chose to claim it, and that no answer forced 
 from him by the presiding judge, after such claim, could be given 
 in evidence against him. (s) 
 
 The prisoner was indicted for mutilating one of his trade books, 
 and his examination before the Court of Bankruptcy was given in 
 evidence against him. In this examination ciuestions were put, 
 and answers obtained to them under the threat of committal ; 
 these questions and answers related to the prisoner's trade books. 
 Upon a case reserved it was held that, as all the questions touched 
 matters relating to his trade dealings or estate, the bankrupt was 
 bound to answer them, although by his answers he might crimi- 
 nate himself. That the questions, though tending to criminate 
 the bankrupt, are made lawful, and if he refuses to answer them 
 he is liable to be committed as upon a refusal to answer any other 
 
 and that the whole must he put in evi- 
 dence, including the cross-examination 
 and copy of the agreement. C. S. G. 
 
 (/•) Keg. r. Chidley, 8 Cox, C. C. 365. 
 Cock bum, C .T. 
 
 (s) Keg. V. Garbett, 1 Den. 0. C. 236, 
 2 C. k K. 474. This was the ruling of 
 nine judges, Parke, B., Aldersoii, B., 
 Coltman. .1., Jlaule, J.. Kolfe, B., Wight- 
 man, J., Cresswell, J., Piatt, R.. and Wil- 
 liams, J., against Lord Uenman, C. J., 
 "Wilde. C. J., Pollock, C. B., Patteson, .T., 
 Coleridge, J., and Erie, J. The uiue 
 
 judges did not decide, as the case did not 
 call for it, whether the mere declaration of 
 the witness on oath, that he believed that 
 the answer would tend to criminate him, 
 would or would not be sufficient to pro- 
 tect him from answering, where otlier 
 circumstances did not appear in the case 
 to induce the judge to believe that it 
 would not. Tlic nine judges did not 
 think Dixon v. Yale, 1 C. & P. 278, and 
 East V. Chapman, 2 C. & P. 573, binding 
 authorities. See post.
 
 CHAP. IV. § I.] Confessions and Admissions. 479 
 
 lawful question. That the statute has taken away the privilege 
 that a party is not bound to accuse himself, and has enacted that 
 he must answer questions, by answering which he may be crimi- 
 nated ; and that one of the consequences is that what may be 
 stated by a person in a lawful examination may be received in 
 evidence against him. The examination, therefore, was properly 
 received, {t) 
 
 Where the bankrupt's examination in the Court of Bankruptcy 
 was not respecting any matters relating to the- trade dealings or 
 estate of the bankrupt, the Court held that the examination was 
 properly received. Upon the trial of an indictment against the 
 bankrupt for uttering a forged letter with intent to obtain goods, 
 the proper test is whether the party may object to answer. If he 
 may, and he does not do so, he voluntarily submits to the exami- 
 nation to which he is subjected, and such examination is admis- 
 sible against him. This examination was not touching any matters 
 relatiiig to the trade dealings or estate of the bankrupt ; he might 
 have objected to the examination, but he did not do so ; the 
 examination therefore was voluntary and admissible, {u) 
 
 Upon an indictment for forging a deed, the answer and deposi- -^iiswers and 
 tion in chancery of the prisoner were tendered in evidence against chancerv"^ "^ 
 the prisoner, and were objected to on the ground that they were 
 upon oath ; but Vaughan, B., was clearly of opinion that they 
 were admissible, being made before any charge was made against 
 the prisoner. The amended bill in the same suit in chancery 
 Avas put in and read ; it contained a charge of forging the deed 
 against the prisoner, on which it was again objected that the 
 answer and deposition of the prisoner were not admissible, upon 
 the ground that the bill contained such charge of forgery. Vaughan, 
 B., ' The argument would go the length of not admitting deposi- 
 tions in the case of perjury. If the party chooses voluntarily to 
 answer, he is bound by it, and the answers are admissible.' (r) So 
 on an indictment for a conspiracy, the answers in chancery of 
 the defendants, which had been made by them upon oath, in a 
 suit which had been instituted by the prosecutor, are admissible in 
 evidence, {iv) 
 
 (t) Reg. V. Scott, D. & B. 47 ; 25 L. amiiiation was inadmissible. But tliis 
 
 J. M. C. 128. Coleridge, J., dissented. decision can hardly be considered as an 
 
 Reg. V. Cross, Dears. C. C. 68, S. P. R. authority after Reg. r. .^loggett, and Heg. 
 
 V. Widdop, 42 L. J. M. C. 9 ; L. R. 2 r. Scott, supra, and there is no weiglitin 
 
 C. C. R. 3. R. V. Robinson, 36 L. J. the fact that the prisoner had been ex- 
 
 M. C. 79 ; L. I{. 1 C. C. R. 80. R. •/•. aniined witli a view to the prnsecution ; 
 
 Hillani, 12 Cox, C. C. 174, vol. 2, p. tlmt is done every day in cases of per- 
 
 447. See R. v. Wheater, 2 M. C. C. R. jury, and it cannot affect the admissibility 
 
 45, 2 Lew. 157. R. v. P>ritt(in, 1 M. & of the evidence. See Stocklleth v. De 
 
 Rob. 297. R. V. Cherry, 12 Cox, C. C. 32. Tastet, 4 Canipb. R. 10. 
 
 (n) Reg. V. Sloggett, Dears. C. C. (r) Hex r. Highfield, Stafford Sum. 
 
 G56 ; 25 L. J. M. C. 93. In Keg. Ass. 1828, IISS. C. S. G. Tlie ])ris(.ner 
 
 1'. Darby, 2 Cox, C. C. 316, a bank- was executed. See Rex v. Lewis, nntr, 
 
 rupt had been examined before a com- p. 474, as to an alfKlavit in a suit in the 
 
 missioner, not so much witli a view Ecclesiastical Court, 
 to oppose his certificate as to this prose- ((/•) Reg. r. Cxddshede, 1 ('. & K. O.'i". 
 
 cution, which was for false pretences, and Lord Dcnman, ('. .1., who ob.scrved th.it 
 
 he had not been cautioned ; biit his soli- ' the very oath on which an answer in 
 
 citor was present ; and the IJccordcr held ehamery is given is tlie foundaticni of 
 
 that, as ho had been examined for the these indictments for perjury which we arc 
 
 purpose of this prosecution, and not with trying almost dailj-.' 
 reference to the bankrupt laws, his ex-
 
 4S0 
 
 Atlidavit. 
 
 PriMoiicr 
 oxiiinincil 
 lii'foru II poor 
 law iii.spcctor. 
 
 Of Kc'uJcncc. 
 
 [book VI. 
 
 As to tlic ail- 
 inissihility of a 
 ileiMisitioii 
 made before a 
 coroner. 
 
 Depositions 
 before a coro- 
 ner liy pri- 
 soners ad- 
 mitted on a 
 trial for a rajic 
 on the de- 
 ceased. 
 
 An alVnljivit of a person is admissible against liim in IkAIi 
 criminal and civil cases, {x) 
 
 The prisoner was indicted for having made a false declaiation, 
 the statcMncnts in which sul)sc(pientiy became the subject of an 
 in(piiry before one of tlie poor law inspectors, nnder the authority 
 of sees. 1!), 20 of the 10 & 11 Vict. c. JiO, ((7) and the prisoner was 
 examined on oath respecting the declaration, and her answers were 
 reduced to writing in a minute-book, and she had affi.Ked her 
 mark ; she was not cautioned that what she .said would be used 
 against her; and her statement was hold inadmissible, on the 
 ground that the answers were given by an illiterate person, who 
 had not been cautioned, under the compulsion of an oath, (/t) 
 
 A difference of opinion has existed whether the examination of 
 a person upon oath as a witness, before a coroner, be admissible 
 in evidence against such person on his trial. In a ca.se tried at 
 Worcester, where it appeared that a coroner's inquest had 
 been held on the body of A., and, it not being suspected that B. 
 was at all concerned in the murder of A., the coroner had ex- 
 amined B., as a witness; Park, J. A. J., would not allow the 
 deposition of B., so taken on oath, on the coroner's inquest, to be 
 read in evidence on the trial of an indictment against B. for the 
 same murder. (?/) 
 
 Upon an indictment for rape against Owen, Ellis, and Thomas, 
 it appeared that an inquest had been held upon the body of the 
 woman alleged to have been ravished, and the coroner stated that 
 at the inquest Owen made four statements ; he had been sworn 
 before each statement ; each of the statements was taken down in 
 writing, and signed by Owen. Ellis made and signed a statement, 
 and so did Thomas ; they were sworn before the statements were 
 made. No inducement of any kind was held out to either of the 
 prisoners to make any statement ; neither threat nor promise ; 
 they were all three brought before the coroner in custody. It 
 was objected that these statements were not receivable in evi- 
 dence, as they were on oath. These persons were in custody ; 
 and in Re(j. v. Wheeley, (z) Alderson, B., rejected the statement 
 of the prisoner, which had been taken at the inquest, because it 
 was on oath, and taken while he was in custody. Williams, J., 
 ' I know that my brother Alderson did so, but I also know that 
 since that there has been a reaction of opinion (if I may be 
 allowed the expression) ; I shall therefore receive the evidence, 
 and reserve the point if it should become necessary.' (a) 
 
 (x) Per Lord Denmaii, C. J., Reg. v. 
 Goldshede, supra. Rex v. Walker, cited 
 6 C. & P. 161. 
 
 (g) Sec. 19 authorizes the commission- 
 ers or inspectors to summon any person 
 they think fit, and administer an oath, &c. 
 Sec. 20 makes every person giving false 
 evidence guilty of perjury, aud every 
 person who refuses to give evidence guilty 
 of a misdemeanor. 
 
 (/() Reg. V. iMurtagh, 6 Cox, C. C. 447. 
 Pennefatiu-r, B., and Moore, J. 
 
 (y) Anonymous, 4 C. & P. 255, note 
 (b). In Rex V. Clewes, reported as to 
 other points in 4 C. & P. 221, the 
 gn^nd jury asked Littledale, J., ' Can the 
 evidence of a prisoner, who was exa- 
 
 mined on oath before the coroner as a wit- 
 ness, be admitted ias evidence against the 
 same person, when subsequently indicted 
 for the murder of the j^erson on wliose 
 body the inquest was held ?' Littledale, 
 J., ' Whatever anj- prisoner says at any 
 time against himself is evidence, and 
 theiefore such a statement is ;ulmissible. ' 
 The preceding case was then mentioned, 
 on wliich the learned judges seemed to en- 
 tertiuu doubts upon the point, but directed 
 the grand jurj' to receive the evidence, 
 and leave the point for discussion upon 
 the trial. MSS. C. S. G. 
 
 (z) Ante, p. 473. 
 
 {a) Reg. r. Owen, 9 C. & P. 83. The 
 report then proceeds — Mr. Tooke (the
 
 CHAP. IV. § i.l Confcsaioiis and Admissions. 481 
 
 But wliere upon an indictment against the same prisoners for The same de- 
 the murder of the same female, whom they had been charged in F°?» 1°°"^ ^^' 
 the preceding case witli ravislmig, the same depositions of the pri- trial for mur- 
 soners, taken on oath on the coroner's incjuest hekl on the body '^^^ o^ ^''^ 
 of the deceased, (6) were tendered in evidence ; Gurney, B., said, ^'"^"^^ ^^'omau. 
 ' I am not aware of any instance in which an examination on oath, 
 before a coroner or a magistrate, has been admitted as evidence 
 against the person making it. I have known depositions before 
 magistrates, made by prisoners on oath, and they have been uni- 
 formly rejected. In my own experience I do not recollect a case 
 of a deposition before a coroner.' After mentioning Rey. v. 
 Wheater, (c) the learned Baron added, ' I confess that I do not, on 
 principle, see the distinction between that and some of the other 
 cases ; still I am of opinion that in the present case I ought to 
 reject the evidence.' (d) 
 
 Upon an indictment for the murder of Elizabeth S., it appeared Deposition 
 that no suspicion arose that her death had been caused by poison '-"^^orea 
 until after the death of Mary Ann S. ; but the parents having in- I'nquest on "^° 
 sinuated that Mary Ann had been poisoned by Riley, she was taken the body of 
 into custody upon the charge, and on the examination before the o^^e person 
 coroner as to the cause of Mary Ann's death, the mother was exa- the'inques'ton 
 mined on oath as a witness, and her deposition was taken in writing, another body, 
 and read over to her, and she put her mark to it. In the course of ^u^I -"hlitional 
 that examination questions were put to her relative to the death of m:ule™to"it. 
 Elizabeth, and in consequence of her answers, and other cii-cum- 
 stances, the body of Elizabeth was disinterred, examined, and 
 found to contain arsenic in the stomach. The parents were there- 
 upon taken into custody, and brought before the coroner, in cus- 
 tody, separately. The mother was told that she was charged with 
 having poisoned her two children, and that that was the time when 
 she might make any statement that she liked to the jury, and that 
 what she said would be taken down in writing. Her former de- 
 position made by her as a witness was then read over to her, and 
 she said that she had a further statement to make, which she made, 
 and what she said was written do\\n, and afterwards read over to 
 her; she was asked to sign it, and refused. The coroner signed 
 it, and it was produced and oft'ercd in evidence against the mother, 
 together with her original deposition. It was objected that as the 
 greater part of the statement had been made by the prisoner, 
 when under examination before the coroner upon oath, it could 
 not be read in evidence against her. Erskine, J., received tiie 
 evidence, but reserved the point for the consideration of the 
 judges. ((•) But as the mother was ac([uitted, tlie judges thought 
 it unnecessary to determine the question. 
 
 So on an indictment for murder, Parke, B., received in evidence Depo.sitiou.s 
 a deposition made by the prisoner on oath as a witness before the I^oro,K.r\i,i. 
 
 coroner. ( /') So also on a trial fnr manslaughter, Martin, B., after mittvd on the 
 
 I* 
 
 (•oriiiirr) recalh'd : 'I asked Owen il lir {/•) This is the wliolc state imnt in tlic 
 
 was desirous (•!' giviiij^ liis cviih'ncc, and ii'jmrt. 
 
 lie said. Yes: lie was .sworn, and };avc (-) Jii/r, p. 47l». 
 
 fvidence. I asked caeli of the other pri- ('/) lieg. c. Owen, [) ( & 1'. 238. 
 
 soiiers if he wished to j;ivc evidence, and {• ) l{eg. r. Sandys, C. & M. :}4r>. 
 
 eaeli said that he did.' Alderson, 15., ( /) Ueg. r. liowarth, (ireenw. Coll. 
 
 was the other judge at Stafford when this Stat. 137, as eited .Vrelih. f. P. 20^. See 
 
 e.ise was tried. 11. r. Colnier, 9 ("<)\, ('. ('. "id*!. 
 
 vol.. ni. II
 
 482 
 
 Of Evidence. 
 
 [book 
 
 VI. 
 
 triul of tho 
 wihiCKH for 
 iiiniilcr iiii'l 
 liMiH.niiij. 
 
 Result ff tl 
 cnscs. 
 
 consult inn ^^ i"«^^' •' • a'iiiiittc'il us ovithsncc against the prisoner his 
 (Iriiosilion <>u oath taken hy the coronor upon the in()Mcst hcM un 
 (hf (K'ceascd. ( // ) And \vhci(! th*; pris(au;r was indicted for adminis- 
 tering poison with intent t(j niunh-r her husband, the coroner stated 
 that lie liad held an in((nest on his Iwdy, which was adjourned, 
 and that tlie prisoner wxs present as a witness on the second oc- 
 casion ; no charge had at that time been made against her ; she 
 made a statement on oath, which the coroner took down in writing. 
 Lord Campbell, C'. J., after consulting Parke, B., admitted the state- 
 ment, and the prisoner was convicted and executed, {g) 
 
 The results dcducible from the cases seem to Ijc that it is now 
 clearly settled that the mere fact of a party having been examined 
 upon oath will not exclude a statement made by him. {h) It is ob- 
 vious that such a .statement may be just as voluntary as if it were 
 not upon oath, as where a party tenders liimself as a witness, and 
 retpiests to be sworn, of his own mere motion. 80 too it is clearly 
 settled tliat if a party be examined upon oath, and has an op- 
 portunity of objecting to answer any (juestions whicli he thinks may 
 tend to criminate himself, but he answers such questions w'ithout 
 objection, his answers are admissible in evidence against him in a 
 criminal proceeding. (;') In such a case, by not objecting when he 
 is entitled so to do he is taken to have answered the questions 
 voluntarily. It is c(iually clearly settled that in such a Ciise it is 
 not necessary that the witness should have been cautioned or put 
 upon his guard as to the tendency of the question.s, in order to 
 render his answers admissible. Lastly, if the witness objects to 
 answer any question as tending to criminate himself, but the Court 
 improperly compels him to answer it, the answer is not admissible 
 against him. [j) 
 
 Dlsfovciic.s ill 
 eoiise()ueiu.e 
 of confessiiiiis 
 unduly oli- 
 taiiied. 
 
 i[j). Discoverie-'i (ind Acts done in consequence of Confession 
 undvhi ohtained. 
 
 It has been determined that, although confessions improperly 
 obtained are not admissible, yet that any facts, which have been 
 brought to light in consequence of such confessions, maybe received 
 in evidence. (Ic) Thus where a prisoner was indicted as an accessory 
 after the fact for having received property, knowing it to be stolen, 
 and had, under promises of favour, made a confession, and in conse- 
 
 (ff) E. V. Batcman, 4 F. & F. 106S. 
 
 (</) Reg. V. Savah rhtshani, Clielms- 
 ford, Mnrrh 6, 1S61. Jl.'^S. This note 
 was submitted by the Editor to Lord 
 "WfnsU'vdale, who replied that he had no 
 doubt the note of the deci.sion was correct ; 
 though he did not recollect that he was 
 consulted by Liuil Cainjibell, vet he could 
 not duubt that he was. The evidence was 
 not .sutlicient to {irovc that the husband 
 dieil of poison, and therefore the prisoner 
 was indicted for administering it, as Lonl 
 Campbell infonned the Editor. V. S. G. 
 
 (h) Sec R. r. Coote, 42 L. .T. P. C". 4.i ; 
 L. R. 4 P. C. .599. 
 
 (t) Reg. P. Carbott, 1 I»en. C. C. 2.10, 
 anti', p. 478. 
 
 (;■) Reg. V. G;irbett, anlc, p. 47S. R. 
 V. Coote, 42 L. J. P. C. 45. It may be 
 remarked that by the Irish Act, 9 Geo. 4, 
 c. .t4, s. 2, whu'h was framed on the 7 
 Geo. 4, c. 64, s. 2, as to taking the exa- 
 minations of witnesses ii; felony, it was 
 jirovidcd that ' no such examination shall 
 subject the party examined to any prose- 
 cution or penalty, or be given in evidence 
 against such party, save on any indict- 
 ment for having committed wilful and 
 lorrupt i>crjury in such examination : ' 
 which .seenis to show that, othenvise such 
 an examination might have l>cen given 
 in evidence in anv case. 
 
 a) 1 Phill. Ev. 411. See Reg. r. l^a- 
 tham, S Cox. ( '. ( '. 49S.
 
 CHAP. IV. § I.] Confessions and Admissions. 4S3 
 
 quence of it the property had been found in her lodgings, concealed 
 between the sackings of her bed ; it was lield that the fact of finding 
 the stolen property in her custody might be proved, although the 
 knowledge of it was obtained by means of an inadmissible confes- 
 sion. {I) So where a prisoner indicted for stealing a number of 
 diamonds and pearls had been improperly induced to make a con- 
 fession, from which it appeared that he had disposed of part of 
 them to a certain person ; it was held allowable on the part of the 
 prosecution to call that person to prove that he had received the 
 property from the prisoner, {m) As far as these cases go, there can 
 be no difficulty as to the propriety of the decisions, because the bare 
 fact of the property being found in the possession of the prisoner 
 in the one case, and of his dealing with it as his own in the other, 
 would, unconnected with any confession, have been clear evidence 
 in support of the prosecution. But the cases have gone further 
 than this, for it has been held that, on a prosecution for receiving 
 stolen goods, where a confession had been improperly drawn from 
 a prisoner, in the course of which he described the place Avhere the 
 goods were ccmcealed, evidence might be given tJiat he did so de- 
 scribe the place, and that the goods were afterwards found there, (ii) 
 In this case it is clear that the bare fact of finding the goods would 
 be no evidence against the prisoner, unless coupled with a part of 
 the improperly obtained confession. And some have accordingly 
 doubted whether any part of such a confession can properly be 
 used for such a purpose. Thus in Harvey's case, Lord Eldon, 
 C. J., said, that where the knowledge of any fact was obtained 
 from a prisoner under such a promise as excluded the confession 
 itself from being given in evidence, he should direct an acquittal, 
 unless the fact itself proved would have been sufficient to warrant a 
 conviction without any confession leading to it ; and he so directed 
 the jury in that case, (o) But the more established rule, accord- what is tlie 
 ing to later practice and later authorities, is, that so much of the correct rule 
 confession as relates strictly to the fact discovered by it may be pertv*^irt\.imil 
 given in evidence ; for the reason of rejecting extorted confessions in couscqucm-o 
 is the apprehension that the prisoner may have been induced to of a confession 
 say what is false ; but the fact discovered shows that so much of ''i''t.'j\^,ej "^ 
 the confession as immediately relates to it is true, (^j) Thus it is 
 proper, and it is now the common practice, to leave to the con- 
 sideration of the jury, where a confession has been improperly 
 obtained, the fact of the witness having been directed by the pri- 
 soner where to find the goods, and his having found them accord- 
 ingly, but not the acknowledgment of the prisoner having stolen 
 
 {D Ke.v r. ■Waiickshall, 1 Leach, 263, deiice against him, yet the fact that thi* 
 
 0. B. 1783. S. P. Mosey's case, 1 goods were recovered, or the corpse found, 
 
 Leach, 265 n. 0. B. 1784. So in Kcx in consequence of the confes.sion. at thf 
 
 V. Harris, R. & M. C. (.'. K. 331, post, p. place mentioned in the confession, was 
 
 508, after the prisoners had been before held receivable in evidence, 
 the magistrate, one of the prisoners went (ni) Ltickhart's case, 1 Leach, 3SC. 
 
 with one of the prosecnilors to a field, and {/') (Grant's case ami Hodge's case, '2 
 
 said he could find the skin buried, and East, P. V. 6.>S. 
 
 showed the place, \\hi(h was dug up and (") 2 East, P. (.'. 6^S. See also 
 
 the skin found. So in Thurtell's case, Mosey's case, 1 Leach, 265, in note to 
 
 cited in Alison's C'r. L. of Scotland, p. Warickshall's case. 
 
 584, and Joy, 84, although a confession (p) Re.v r. l?utcher, 1 Leach, 265, 
 
 obtained by moans of pronuses or hopes note {a) to "Warickshall's case, 2 East, 
 
 of impunity held out was not used in evi- 1'. ('. c. 16, s. Pt. p. 658. 
 
 I I 2
 
 4S4 
 
 Of Evidence. 
 
 [book VI. 
 
 Act.s 'liinu in 
 consscqucnce 
 of a eoufcb- 
 .sioii. 
 
 Declarations 
 acconiiianyinj; 
 sucli acts. 
 
 1)1 |tiit tliciii tlicic, uliicli is U) 1)0 cullocted ur not, IVoin all tin- 
 (•irtuiiistaiiucs <>( tlii^ case, (ry) Su wlierc on ati iiidictinoiit \ov 
 l>iir;;laiy it apjx'arud tliat the ])ris(>ner liad made a .statfimnt tu a 
 policeman, umler some paiticidar circumstances, wliicli induced tlie 
 coun.sel for the pro.secution, witli tlie approbation of the Court, to 
 decline offerin<^' it in evidence ; hut in consequence of the statement 
 containinfr some allusion to a lantern, which was afterwards found 
 in a i)articular place, the policeman was a,sked whether, in conse- 
 ([uencc of somethin<,f which the prisoner had said, he made a search 
 loi' the lantern; Tindall, ('. J., and Parke, B., were both of opinion 
 that the words used by the prisoner, with reference to the thing 
 found, ought to be given in evidence, and the policeman accord- 
 ingly stated that the prisoner told him that he had tlirown a 
 lantern into a pond in P(jcock's Fields. The other parts of the 
 statement were not given in evidence, (r) 
 
 But where on a trial for concealing the birth of a child it 
 ap{)eared that, after the prisoner had been cautioned in the usual 
 manner, and had stated that she had nothing to say, the magis- 
 trate, before committing her, asked her where she had put the 
 body of the child; Erie, J., refused to receive the statement in 
 evidence. It was then proposed to ask whether, in consequence 
 of the answer she had mven to the majjistrate, the witness had 
 made a search in a particular spot, and had found a certain thing. 
 Erie, J., ' No ; not in conse(|uence of what she said. You may ask 
 him what search was made and what things were found, but under 
 the circumstances, I cannot allow the proceeding to be connected 
 with the prisoner.' («) 
 
 So it has been determined, after a consideration by all the judges, 
 that, although a confession improperly obtained cannot be received 
 in evidence, yet that any ocfs done afterwards may be given in 
 evidence, notwithstanding tliey were done in consecpience of such 
 confession, (t) 
 
 And it should seem that what the prisoner says at the time such 
 acts are done may also be received in evidence. The prisoner was 
 charged with stealing a guinea and two promissory notes, one of 
 which was a Bank of England note for fi\c pounds, and the other a 
 Reading bank note for the like sum. The pro.secutor had told 
 the prisoner that he had better confess. Chambre, J., held that, 
 although the prosecutor could not be allowed to prove a confession 
 riiade after this admonition, he might be permitted to give evidence 
 that the prisoner bought to him a guinea and a five pound Beading 
 bank note, tuhick he gave up to the prosecutor as the (jalnea and 
 one of the notes that had hcoi stolen from him. The note thus 
 produced the prosecutor could not identify otherwise than by its 
 corresponding with the stolen note in the sum for which it an as 
 given, and in being a note of the same bank. Upon a case re- 
 
 (()) -2 East, P. ('. c. 1(1, s. 1)4, p. 6.")?. 
 
 {!■) Ki'Lc. r. CouM, ii ('. & r. :3t)4. 
 Mr. I'liiliiiips, vol. 1, i>. 41-2, after statin,-,' 
 this casi'. acids, ' I'lit the judge in siu h 
 a case would direct the jury, and so it is 
 understood did dirett the jury in that 
 I ase, tliat his statement must not be 
 taken as proof that Ac roiuralai, but 
 merely as enileiu-c that he knew of or 
 
 was privy to the concealment, from 
 whieh, together with the rest of the evi- 
 dence, they would consider whether it 
 Mas probable tliat lie concealed it him- 
 .self. • 
 
 is) Reg. i: Berriman, 6 Cox, C. C. 
 388. 
 
 (f) "Waiickshall's case, 1 Leach, 26.'».
 
 CHAP. IV. § I.] Confessions and Admissions. 485 
 
 served, the majority of the judges (h) agreed with Chambre, J., in 
 thinking the conviction right and the evidence admissible, {v) 
 
 But not only are confessions excluded when obtained by means Not admissible 
 of improper inducements, but also the acts of the prisoner done except when 
 under the influence of such inducements, unless confirmed by the ^^^ ^™^' ' 
 finding of the property ; for the same influence Avhich might pro- 
 duce a groundless confession might produce groundless conduct. 
 A prisoner was indicted for larceny, and had been induced by a 
 promise from the prosecutor to confess his guilt ; and after that con- 
 fession he carried the officer to a particular house as and for the 
 house where he had disposed of the property, and pointed out the 
 person to whom he had delivered it ; that person, however, denied 
 knowing anything about it, and tlie property was never found ; it 
 was held that not only the confession, but the fact of the prisoner's 
 carrying the officer to the house as above mentioned, was inadmis- 
 sible in evidence. The confession was excluded because, being 
 made under the influence of a promise, it could not be relied upon, 
 and the acts of the prisoner, under the same influence, not beinr/ 
 coiifirriU'd by the Jiiidivg of tite property, were open to the same 
 objection. The influence which might produce a groundless con- 
 fession might also produce groundless conduct, (iv) 
 
 {](). Against whoin Confessions and Statements Evidence. 
 
 The statement or confession of one prisoner, made in the absence Confession 
 
 of another prisoner when not before a magistrate, is onlv evidence ^^•^J^"'-'*', 
 
 against himself, and not against another prisoner : (.r) and in party confess- 
 
 general, the confession of one prisoner on his examination before a ingonly, 
 
 magistrate is only evidence aQainst the party who made the confes- •''^''^"='1' i":\'le 
 • 1 ii 1 /• -7,1 1 1- before a niajji^- 
 
 sion, and cannot be made use oi against any others, whom on his trate in tbe 
 
 examination he confessed to be engaged with him in committing liearintr ..f an 
 the offence ; (y) and even if such confession were made before a '^^'■"""Ki'";; 
 magistrate in the hearing of another prisoner, it would not be evi- ,ienv it. 
 dence against such prisoner ; on the ground that there is a regu- 
 larity of proceeding adopted before a magistrate, which prevents 
 the prisoner from interposing when and how he pleases, as he 
 would in a common conversation, and the prisoner is brought to 
 answer the charge and evidence given against him, and not the 
 statement made by another prisoner. Thus Avhere the confession 
 was made before a magistrate in the presence and hearing of tlio 
 
 (ii) Lord EHenboroiigli, < '. J., Mans- tms not rcirirablea.'i eviiUticr (ujainst tlif 
 
 field, C. J., Maidonald, (.'. 1'.., li«atli,.I., / hi rd person.' Thi.s is dearly an error; 
 
 (Irose, J., C'hanibri', .F., and Wood, 15. tlnre wjus onlj' one prisoinr indicted, and 
 
 lint Lawrence and Le Blanc, .Is., were of he for the larceny, and the only ([uestion 
 
 opinion that tlie production of the money was, whether th<' evidence was admissible 
 
 was alViiic admissible, and not liis sayinj^ aj^ainst him. If the person pointed out 
 
 at the time he ]iroduied one of the notes had been indicted as the receiver, the fact 
 
 ' that it was one of the notes stolen from of the ]irisoner pointinj^ him out as tlie 
 
 the prosecutor.' And see l{ex /•. Jones, person, in his presence, and liis denial, 
 
 K. & H. Ifi2. Jiifc, p. 44.'). would undoubtedly have been adnu.s.sible 
 
 {v) Rey V, Gritlin, K. k H. l.'il in evidence aj^ainst such jK'i-son. See 
 
 (ir) Rex V. Jenkins, K. & U. 492. Mr. Kej;. r. Cox, 1 F. & F. 90, jjost, p. 848. 
 
 Phillipps, Ev. vol. 1, ]i. 413, .says, 'It was C. S. (J. 
 
 held that the evidence of what ]iassed (x) Hevey's cn.sc, 1 Ii«^aeh, '2^-2. 
 
 between the prisoner and till' otlicer ought (</) Tong's ca.se, KoL 18. 
 
 not to have been received, that is, it
 
 486 
 
 Of ICrldcncr. 
 
 BOOK vr. 
 
 I)o|io.sitioii of ;i 
 witness on a 
 siininiary con- 
 viction. 
 
 Deposition of 
 witness on a 
 charge of 
 felonv. 
 
 Mpruiii|ili<v, wlm (lid not deny it, lf(jlri)ytl, J., Ik-M (z) tli;it tliose 
 (•ii('iiiiist;iii(cs wcic not cvidenct' ;iguinst tlic latter, and saitl tliat 
 il li.ul 111 111 -n ruled l)y several of the judf^cs in a similar cax', 
 uliicli had lictH tried at Chc'stcr. (f') So where a confession of the 
 jirincipal, made l)cli)r( a ni.'igistrate in the presence of the receiver, 
 in which she stated various facts implicating the receiver, and others 
 as well as herself, was tendered in e\ idence ; Patteson, J., refused 
 to receive in e\ idence anylhiiin th.il was said l)y her respecting the 
 leceiver. {h} 
 
 Upon similar grounds also the deposition of a witness who has 
 been examined against a person before a magistrate in a case of 
 summary conviction is inadmissible. In an action for maliciously 
 laying an informatiou against the plaintiff, it was proposed to prove 
 wliat a witness, called for the defendant, had said in the plaintiff's 
 presence before the magistrate on the hearing of the information, 
 on the ground that he had had tlie opportunity of cross-e.\amining 
 the witness, and commenting on his testimony ; Parke, J., said, ' I 
 think it is the .safer course to refuse it, and to hold that the depo- 
 sition of a witness taken in a judicial proceeding is not evidence, on 
 the ground that the party against whom it is sought to be read was 
 present, and had the opportunity of cross-examining. It clearly 
 would not be admissible against a third person, who merely hap- 
 jjcned to be present, and who, being a .stranger to the matter under 
 consideration, had not the right of interfering ; and I think the 
 same rule must apply here. It is true that the plaintiti' might 
 have cross-examined or commented on the testimony ; but still, in 
 an investigation of this nature, there is a regularity of proceeding 
 adopted whicli prevents the party from interposing when and how- 
 he pleases, as he w^ould in a common conversation. The same in- 
 ferences, therefore, cannot be drawn from his silence or his conduct 
 in this case, which generally may in that of a conversation in his 
 presence ; and as it is onl}^ for the sake of these inferences that the 
 conversation can be admitted, I think it better to refuse the evi- 
 dence now ofifered.' (c) 
 
 But where to an action for false imprisonment the defendant 
 pleaded that the plaintiff had been guilty of embezzlement, and it 
 appeared that the depositions of the plaintiti" and his witnesses 
 liad been taken on that charge in the presence of the plaintiff be- 
 fore a magistrate, and that the plaintiff had then said, 'I submit 
 that there is no case against me ;' Lord Denman, C. J., held that 
 the depositions must be read, and the plaintiff's answer to them ; 
 but that the depositions were not any evidence of that which was 
 stated in them, except in so much as the plaintiff had admitted 
 them to be true by anything that he had .said, {d) 
 
 (c) Rex V. Appleby, 3 Stark. N. P. C. 
 33. In an action of assault, the defen- 
 dant offered evidence of what was said 
 by tlie magistrate before whom the matter 
 had boon investigated, in the presence of 
 both plaintiff and defendant ; but Best, 
 C. J., refused to admit it. Child r. Grace, 
 2 C. & P. 193. 
 
 (a) As to when the declarations of one 
 conspimtor arc evidence against all his 
 comrades, see ante, p. 143. 
 
 (6) Rex r. Turner, K. & il. C. C. R. 
 347. Reg. V. Swinnerton, C. & M, 593. 
 
 {i-) Melen r. Andrews, it. & M. 336. 
 See Finden r. AVestlako, ibid. 461, per 
 Tindal, C. J., and sec Child r. Grace, 
 supra. 
 
 (d) Jones r. Monell, 1 C. & K. 266 ; 
 and in Simpson v. Robinson, 15 Q. B. 
 511, Loni JVnman, C. J., speaking of 
 Melen c. Andrews, supra, said, ' We do 
 not understand that case as deciding that
 
 Stci's, if re- 
 ferred to by 
 tlie prisoner. 
 
 CHAP. IV. ^ 1,] Confessions and Admissions. 487 
 
 But if a prisoner iii his examination before a magistrate makes 
 
 an express reference to the examination of another prisoner, taken 
 
 in his presence before the magistrate, the examination of sucli 
 
 prisoner may be given in evidence against tlie prisoner so referring 
 
 to it. (e) If a prisoner, when before a magistrate on a charge of 
 
 an assault, makes a statement in answer to what the person 
 
 charging him with the assault stated, the statement made by such 
 
 party and the answer of the prisoner to it are admissible. Uf)on 
 
 an indictment for murder, it appeared that the deceased made a 
 
 complaint to a magistrate of the prisoner having struck him a blow 
 
 (which ultimatel}' occasioned his death), and the prisoner was in 
 
 consequence brought before two magistrates for the assault, and 
 
 convicted and fined. On the examination of the charge of assault 
 
 the deceased made a statement, and the prisoner made a statement 
 
 in answer to it. (/) Tindal, C. J., held that evidence of what was 
 
 said by the deceased on the examination, and also what the 
 
 prisoner said in answer, was admissible ; but added, ' I shall not 
 
 hold that what the deceased said is evidence as proving the facts 
 
 he stated, as it would be if it were a deposition taken under the 7 
 
 Geo. 4, c. 64, but only evidence as producing an answer from the 
 
 prisoner, like any other conversation ; and I do not think it is the 
 
 less evidence because it is on oath. I shall therefore admit it as a 
 
 conversation.' {g) 
 
 And so if one prisoner were to make a confession in the presence Confession in 
 of another prisoner, when not before a magistrate, such confession ^^^ lieanng of 
 Avould be admissible against the prisoner in whose presence it was before"" mr^ls. 
 
 tnUe. 
 
 uiuler no (ircuiiistiince.s can such evidence 
 be admitted ; though the learned judge 
 thouglit it in that case safer and lietter to 
 exchide it, and the ph'iiutiti"s counsel 
 acquiesced ; for cases might certainly be 
 conceived in which a party, by not deny- 
 ing a charge so made, might possibly 
 afford strong proof that the imputation 
 was just.' 
 
 (c) Several instances have occurred 
 where this has been done, anil the case is 
 similar to Rex v. John, 7 C. & P. 324, 
 and Dennis's case, 2 Lew. 261, where the 
 prisoner.s' examinations referred to the 
 depositions of particular witnesses, and 
 such depositions Were held to be admis- 
 sible in exjilanation of the prisoner's 
 statement. In such a case it should seem 
 that it would depend on the manner in 
 which the reference was made to the 
 other prisoner's examination whether the 
 facts stated in such examination wore 
 admitted or not. It might be that tiie 
 prisoner's examination stated that tlic 
 other prisoner's statement was correct, 
 and if so that would be an admission of 
 the facts stated in it ; or the reference 
 might be such as merely to recpiire the 
 reading of the other examination as 
 explanatory of the jirisoner's statement, 
 without admitting any fact stated in it. 
 In 2 Stark. Ev. 40, it is said, ' In some 
 instances the confession of one taken in 
 the presence and hearing of another 
 prisoner may be very material to explain 
 
 the ex])ressions and conduct of the latter 
 upon tliat occasion ; for any declarations 
 of his, by which he assenteil to what was 
 confessed by another to his own preju- 
 dice, would be admissible against him. 
 The confession of tiie other may also, it 
 .'■ecms, be evidence for the purpose of 
 explaining such declarations.' V. S. G. 
 
 ( /") Tliis statement was not in writing, 
 and objected to on that ground ; but 
 Tindal, C. J., held that, 'this being a 
 summary conviction, is not a case in 
 whii'h magistrates are required to take 
 down tiie evidence in writing.' And see 
 Kobinson c. Vanghton, S t'. & P. 2:)1, 
 S. P. 
 
 (;/) Hex r. Edmunds, G C. i'^: P 104. 
 Tills decision has been doubted, 1 Phill. 
 Ev. 40n, and .toy, 71', 8(l, but as it should 
 seem without any sutticieut reason. Tlie 
 dei'ision is jirecisely in conformity witli 
 tlie distinction taken by Hest, C". .(., in 
 t'liikl r. (Jrac, 2 C. & !'." i!i:?, ant^\ note 
 {x), p. 486, and it is conceived that tlie 
 evidence was admissible on the ground 
 tliat (tt common law evidence of a deceased 
 witness given upon oatli in a judicial 
 ))roceeding between tlie same parties is 
 ailmissible in a subsei|uent proceeding, 
 the i>arty against whom tlie evidence is 
 otleied having had an opportunity to 
 cross-examine in tlie former ])i"0<"ce(ling. 
 See Kex v. Carpenter, 2 Show. 47, and 
 the ca.ses cited, nnle, p. 354. C. S. G,
 
 488 
 
 Of Ki'kIi'iicc 
 
 MoiiK W. 
 
 SlaU'iiiciil 
 made in the 
 |»rcseiu'f of H 
 )irisoiiei' liy 
 his wife. 
 
 By thief in 
 presence of 
 receiver. 
 
 Statement to 
 prisoner 
 denied by him. 
 
 lu.ulf, .iltliMiii^li lit' iii.nlc no ohscrviitioii with icrun-iice to it ; for a 
 cmfrssioii inav !)•' colli'ctofl or infernal from tlic coiiduct and 
 tloriit-aiior of a prisoner on hearing a statotiKMit atfccting himself (h) 
 Hilt as such statements frequently contain much hear.say and other 
 ohjectionahKM;videncc,andas the (UMueaiKjrcjf a person upon hearing 
 a criminal charge against himself is liable to great misconstruction, 
 evidence of this description ought to l)e regarded with much 
 caution (/) 
 
 Not only what is said by a prisoner, l)ut what is said to him, or 
 in his presence, except when before a magistrate, is admi.ssilWe in 
 evidence, and it makes no difference that what was .said was .said by 
 a per.^on who caimot be called as a witness. On an indictment for 
 murder, some observations made to the prisoner b}' his wife, to 
 ■which ho made an evasive reply, were al)out to be stated, when it 
 was objected that the statement (»ught nut to be made, as the wife, 
 if she could by law be examined, would give a direct contradiction 
 to them ; but Gaselce, J., and Parke, J., were both of opinion that 
 the statement might be made to the jury ; and that the circum- 
 .«;tance of the observations being stated to have been made by the 
 wife, who could not be called as a witness, did not vary the general 
 rule, that whatever was said to a prisoner on the subject-matter 
 of the charge, to which he made no direct answer, was receivable as 
 an implied admission on his part. (J) So where the wife of the 
 prisoner, who was indicted for the murder of his wife's mother, 
 came into the room where he was in custody, and said to him, 
 ' Oh, Bartlett ! how could you do it ? ' He looked steadfastly at 
 her, and said, ' Ah, what ! you accuse me of the murder too ? ' 
 She said, ' 1 do, Bartlett ; you are the man tliat shot my mother.' 
 The prisoner did not make any reply. She then turned to the 
 witness and said, ' This was done for money.' It was objected, that 
 as the wife could not be examined on oath, what she had then 
 said could not be used as evidence against him ; but the evidence 
 was held clearly admissible. (/.•) 
 
 So the confession of a thief made to a constable in the presence 
 of the receiver is evidence against the latter that the property was 
 stolen by the thief [l) 
 
 A prisoner indicted for arson had given certain false account.s, as 
 that he had seen the fire from his bedroom window, and liad got 
 np to see it ; and it was proposed to prove that the prisoner had 
 said to his mother, ' Yon know I was at home ; ' on which she said. 
 ' What's the use of denying it ? ' but it was objected that it would 
 have the ettect, in an indirect way, of giving evidence that the 
 prisoner was not at home on the night in question ; which ought 
 to be proved by calling the mother. Martin, B., thought the 
 evidence not admissible ; for what was said in the presence of the 
 prisoner was only admissible against him when admitted, whereas 
 liei'e it was denied l)y him. (>/<) 
 
 (h) 1 rhill. Ev. 400. 
 
 (0 Ibid. 
 
 {j) Rex V. Smithies, 5 C. k P. 33-2. 
 
 (A) Rex r. Riitlett, 7 C. & P. 832. 
 See Rex v. Simons, 6 C. & P. 540, where 
 AhliTson, B., held that wh.it a pci-son is 
 oviihcard saying to his wife, or even 
 saying to himself, is evidence against 
 him. 
 
 (I) Keg. V. Cox, 1 F. & F. 90. Crow- 
 der, J. 
 
 {m) Keg. r. "Welsh, 3 F. & F. 275. 
 The very ground of the objection shows 
 that the evidence ought to have been 
 admitted. Instead of being a statement 
 made by the mother and denied by the 
 prisoner, it was an assertion by the pri- 
 soner denied by the mother, which is a
 
 CHAP. JV. § I.J Conft'ssions and Adialmons. 
 
 On an indictment for rape it has been held that what had been 
 said by a relative of the prosecutrix to a relative of the prisoner 
 in the presence of the prosecutrix about niaking it up is admis- 
 sible in favour of the prisoner, {n) 
 
 A statement made in the hearing of a person, though not in his 
 actual presence, may be evidence against him. Thus it has been 
 held that, where the plaintiff was in the kitchen of the defendant's 
 house, and the defendant's wife stood at the head of the kitchen 
 stairs, what she there said in a tone of voice loud enough fur the 
 plaintiff' to hear was admissible against the plaintiff. {(>) 
 
 The Court will not exclude a statement made in the prisoners 
 presence by another party to a third person, merely because some 
 inducement has been held out to that party to make it ; but very 
 little weight ought to be attached to the fact of no answer being 
 given to such statement by the prisoner, as he would not know 
 whether it would be better for him to be silent or not. (p) 
 
 On an information for a libel, a book containing imputations 
 identical with those in the libel, which had been published some 
 time previously to the application for the information, is not ad- 
 missible for the purpose of showing that tlie prosecutor had tacitly 
 acquiesced in the truth of the identical charges contained in the 
 Hbel. {q) 
 
 Where on a trial for murder a statement by a prisoner to a 
 policeman on a charge of robbing the deceased witli violence was 
 tendered ; it was objected that it was on another charge, before the 
 charge of murder. Pollock, C. B., ' That makes no difference ; 
 whatever a man says is evidence against him — in criminal cases as 
 well as civil — at any time an(i on any matter. A policeman ap- 
 prehends a man on a charge of highway robbery on a particular 
 night, and he says, I cannot be guilty of that robbery, for on the 
 same night and the same hour I was at a different place ; and the 
 policeman may, on that admission, apprehend him on a charge of 
 murder at the time and place so mentioned, and may offer that 
 admission in evidence against him at the trial.' (/•) 
 
 Upon an indictment for burglary, it appeared that, shortly after 
 the robbery, four glass jars containing sweetmeats, which had been 
 taken from the prosecutor's, were found in the prisoner's house, 
 not being in any way concealed, and the prisoner's counsel urged 
 that this was consistent with the account the prisoner had, as he 
 was instructed, given of the way in which the jars had come into 
 
 489 
 
 Statement in 
 the presence of 
 a iiroseciitrix. 
 
 Statement in 
 the hearing of 
 a person. 
 
 Previous puh- 
 lioations of tlie 
 same litiel. 
 
 Any statement 
 of a prisoner 
 is admis.sil)le, 
 thougli it 
 relate to an 
 otfence dif- 
 ferent from 
 that with 
 which he is 
 chargetl. 
 
 A st^itement 
 liy a prisoner 
 as to stolen 
 property in 
 his possession 
 before any 
 siLspicion 
 against liim, 
 
 totally iliilVrent thiiij^, especially as 710 
 reply was made to what the mother said, 
 it has been the constant practice to prove 
 stateiiu'iits made hy prisoin'rs in the jirc- 
 sencc of persons wlio have denied them. 
 C. S. G. 
 
 (?t) Keg. V. Arnall, 8 Cox, (". ('. 439. 
 Martin, 13., .said, ' In a civil case, what is 
 said ill the presence of either of tlie 
 parties is admissible against him ; becau.se 
 it is open to the party so present to 
 express assent or olijcction to what is 
 said, and that would he admissible against 
 him. In criminal cases the prosecutor, 
 although not in strict law a party to the 
 ca.se, is so in fact, and I think that the 
 rule applicable to conversation in the 
 
 presence of a party in a civil casi- might 
 be fairly extended to a conversation in the 
 presence of the prosecutor in a criminal 
 ea.se.' Such a statement as to making up 
 the matter would tend to alleet the credit 
 of the ]iroseculiix in a ca.se of rape ; niid 
 its admissibility may be moresatisfactorily 
 rested ui)oii that ground, but she (uight 
 to have been eiDSs-examiiied a.s to it in 
 the liist instance. C S. (!. 
 
 (u) Neile r. ,lakle, 2 (J. & K. 7ti9. 
 Maule, .1. 
 
 (i>) W. V. Milton, 10 Cox, C. C. ?,CA. 
 
 {q) Heg. r. Newman, 1 E. & li. 268. 
 
 (/•) Keg. V. Lee, 4 F. & I". 63. See 
 Fisher r. Ronalds, 12 ('. 15. 7(12 per 
 Maule, .1.
 
 490 
 
 i* siiid to lie 
 niliuiKsililc for 
 him. 
 
 (Jj I'll'ldciKU' 
 
 [book VI. 
 
 Declarations 
 
 IlIU'OUIR'i-tOil 
 
 willi tlic ai't-s 
 cliargeil :i-s iin 
 offeucc are 
 inadiiiis.sible 
 in favour of a 
 luisouer. 
 
 Acts and de- 
 claiations of 
 CO- conspirators 
 and of agents. 
 
 Agent of de- 
 fendant. 
 
 his jKJs.sc'.ssiuii ; iiaiat'ly, tliiit the pri.suiier liud found them in a 
 iiohl. But no one wa.s called to prove thi.s statement. Alder- 
 son, B., told the jury that, if it had appeared that, before suspicion 
 attached to the prisoner, he had j,nven tliis account of the po.sses- 
 sion of tin- property to his neighbours, the property being there at 
 the time, and before search jna<le, he had not the slightest doubt 
 that, valeat qua) 1 1 am, this w(juld have been very competent evi- 
 dence for the prisoner, (s) 
 
 Upon an indictment for burning bibles, it was proposed to 
 prove, on the part of the defendant, that he had preached .sermons 
 relating to immoral publications previously to the alleged offence, 
 and it was urged that it was a material })art of tlic charge that 
 the defendant had knowingly caused the bil)les to l)c luirnt, and 
 therefore for the purpose of showing his intention in getting books 
 together, his directions given in the sermons to the persons wlio 
 brought in the books were admissible ; but it was held that the 
 evidence could not be given. It was true that declarations ac- 
 companying acts are admissible to show the intention at the time ; 
 and the question of intention was a very material one in tlie case ; 
 but it was to be inferred from legal evidence of facts, and not from 
 declarations of the defendant on former occasions unconnected 
 with the subject-matter of the trial, {t) 
 
 As analogous to the former part of this section, concei'ning 
 admissions and confessions by the defendant himself, it may be 
 proper in this place to mention the subject of acts and declara- 
 tions of co-conspirators and of agents. How far the acts and 
 words of one conspirator are evidence against the others, has 
 already been mentioned in a former part of this work, {v.) With 
 respect to the statements and acts of agents, it was decided, on 
 the impeachment of Lord Melville, by the House of Lords, that 
 a receipt given in the regular and official form by Mr. Douglas 
 (who, it was proved, had been appointed by Lord Melville to be his 
 attorne}', to transact the business of his office of treasurer of the 
 navy, and to receive all necessary sums of money, and to sign 
 receipts for the same), was admissible in evidence against Lord 
 Melville, to establish this single fact, that a person appointed by 
 him, as his paymaster, did receive from the Exchequer a certain 
 sum of money in the ordinary coui'se of business, {v) In the 
 Queen s case, (u") it was said b}' Abbott, C. J., in delivering the 
 opinion of the judges, that it would not be allowable on the part 
 of the prosecution to give evidence that an agent, who had been 
 proved to have been employed by the defendant to procure evi- 
 dence for the defence, but Avho had not been examined as a wit- 
 ness, offered a bribe to some third person, who also had not been 
 examined. This was not the question proposed by the House of 
 Lords to the judges, but the converse of it, considered by the 
 chief justice, for the purpose of showing the grounds of the 
 
 (s) Re^. V. Abraham, 2 L'. & K. 550. 
 I never nave been able to discover any 
 ground for this obiter dictum. Such a 
 statement is not one accompauj-ing an 
 act ; it is a mere declaration, and, instead 
 of being against the interest of the pri- 
 soner, it is directly in his favour, sup- 
 posing the goods to liave been stolen. 
 
 C. S. G. 
 
 (t) Reg. V. Petcherini, 7 Cox, C. C. 79, 
 C'rampton, J., and Greene, B. 
 
 {u) Ant4:, p. 143. See also 2 Stark. 
 Ev. tit. Con^raq/. 
 
 W) 29 How. St. Tr. 746. 1 Phill. Ev. 
 386. 
 
 {tc) 2 Brod. & Bing. 302.
 
 CHAP. IV. § I.] Confessions and Admissions. 491 
 
 determination of the judges. The actual question proposed for Agent of pro- 
 their consideration was, as to the competency of proving, on the ^^cutor. 
 trial of a criminal prosecution, certain acts supposed to have been 
 done by the agent of the prosecutor. And they determined that 
 similar proof, as to the conduct of the prosecutor's agent in offer- 
 ing a bribe, was inadmissible. The question, the Lord Chief 
 Justice observed, regarded the act of an agent addressed to a 
 ])erson not examined as a witness in support of the indictment, 
 the proffered proof not apparently connecting itself with any par- 
 ticular matter deposed by the witnesses, who had been examined 
 in suppoi't of the indictment, and leaving therefore those wit- 
 nesses [unaffected by the jjroposed proof, otherwise than by way 
 of inference and conclusion. His lordship concluded by observing 
 that, notwithstanding the opinion he had delivered, he was by no 
 means prepared to say, that in no case, and under no circumstances 
 appearing at a trial, it might not be fit and proper for a judge to 
 allow proof of this nature, to be submitted for the consideration 
 of a jury; and that the inclination of every judge was to admit, 
 rather than exclude, the proffered proof 
 
 There are sundry instances where an employer is criminally Actsofser- 
 responsible for acts done by his agents or servant.s, in the vants. 
 course of their employment and for his benefit. Thus a master 
 lias been held criminally responsible for the sale by his servant, in 
 the course of his employment, of bread containing a noxious 
 quantity of alum, (y) 
 
 {i). Proof of Confessions and Statements. When Onus on 
 Prosecutor to contradict same. 
 
 As to proof of statements made by the accused before the com- 
 mitting magistrates, see the next section of this chapter. 
 
 Where a confession is tendered in evidence, the proof that it 
 was made voluntarily lies upon the prosecutor ; and if it be left in 
 doubt whether the confession were made in consequence of an 
 inducement, it Avill be rejected, (z) 
 
 A prisoner made a confession to an officer, wlio left the prisoner, 
 and afterwards wrote down from recollection what the prisoner said 
 to him. What the officer wrote was read over to the prisoner 
 before the committing magistrate, and he said that what had been 
 read over to him was the truth, and signed the paper. Best, J., 
 ' We have not the confession of the prisoner ; we have only the 
 officer's recollection of it, put into writing when the prisoner was 
 not present, and in the language of tlic officer, and not in the words 
 used by the prisoner. If a confession be not taken in writing, we 
 must be content with the recollection of the witness who proves 
 it, because we cannot have any more certain account of it. I will 
 receive nothing as a confession in writing that was not taken 
 down from the mouth of the prisoner in his own words, nothing 
 that he says that has any relation to the subject being omitted, 
 nor anything added, except explanations of provincial expressions 
 or terms of art. The reading this paper to the prisoner, and his 
 
 It lies on tiie 
 pro.seeiition to 
 prove that a 
 statement by a 
 prisoner was 
 voluntary. 
 
 Examinations 
 not in the 
 words of the 
 prisoners are 
 inadmissible. 
 
 (y) Rex r. Dixon, .3 M. & S. 11, vol. 
 1, p. 268, and see other cases there cited. 
 
 {z) Reg. r. ■\Varringhftni. 'J Den. C. C. 
 447, note.
 
 402 
 
 Of hrnh'tn'c. 
 
 [book VI. 
 
 All names in 
 the confession 
 nmst he men- 
 tioned. 
 
 fK'kiiowli'd^MiK'Mt that it was correct, docs not remove the olijcc- 
 tioii. Jiy tlio clian<(0 of" lan<^iia<,'0 a very (litt'oroiit complexion 
 mioht 1)0 given to the story from what it had when it came from 
 the mouth of the prisoner, and which he might not discover when 
 it was read over to him. The lower orders of men have but few 
 ■words to convey their meaning, and they know as little of expres- 
 sions that they are not in the habit of using as if they belonged 
 to another language. I will not receive this paper in evidence. (") 
 In the same case it is .said that Dallas, C. J., had refused to 
 receive, at a former assizes, a confession, because it was not in the 
 prisoner's own words. So where it was proved that the examina- 
 tion of the ])risoner before the magistrate was read over to her, 
 and that she signed it, but there was no evidence that it was 
 taken down from what she said or in the words she u.sed, and in 
 fact it was in langiiage clearly not such as she was likely to have 
 used ; Littledale, J., refused to permit it to be read, (h) And 
 where a witness having, in her examination before the coroner, 
 stated that she had slept witli the prisoner, that he liad given her 
 two black eyes, that they had seen a placard, &c., the statement 
 of the prisoner before the coroner was tendered in evidence, and 
 was as follows : — ' Prisoner admits sleeping with the witness, 
 blackening her eyes, seeing the placard,' &e. : and it was objected 
 that the examination was taken in the third person, which was 
 not complying with the statute, and did not purport to be the 
 language of the prisoner at all, but merely the coroner's expres- 
 sion of what he considered the prisoner to mean. The jury were 
 to judge of the eftect of the statement, and they coulil not do that 
 without having before them the very words in which it had been 
 made. Lord Denman, C. J., thought the objection of considerable 
 importance. As to the mode of taking the examination of the 
 prisoner, that was a very improper way in which to do it. His 
 lord.ship did not, however, see how he could exclude the 
 evidence, but he should reserve the point, in case it were neces- 
 sary, (c) 
 
 Where the confession of a prisoner mentions the name of another 
 prisoner tried at the same time, it seems, according to the later 
 cases, that the whole of the confession, whether by parol or in 
 writing, must be given in evidence. The judge will, however, in 
 such cases, direct the jury that the confession is only to be taken as 
 evidence against the prisoner who made it. On the Oxford Circuit 
 it was the constant practice some years ago to omit the name of 
 any prisoner that Avas mentioned in the confession of another 
 prisoner. (cZ) But it has been held in many cases on that circuit (c) 
 
 (a) Wexv. Se.xton, 1 Huiu's J.. Doyl. 
 & Wnis. p. lOSG. As the paper wasivail 
 to the prisoner, aiul he acknowhHlged that 
 it was oorreit, it was evidence. 
 
 {h) Kexr. Mallet, Gloucester Spr. Ass. 
 1S30, aiSS. C. S. Ci. lint soejmt. 
 
 (c) Keg. V. Koche, V. & M. 341. 
 Yenlict, Not giiilty. 
 
 (d) See Rex r. Fletcher, 4 C. & P. 250. 
 Kex v. Limer, Staftbrd Sum. Ass. 1S39, 
 Bcsamiuet, .1. :MSS. C. S. G. 
 
 {r) Kex 1'. Hearne, 4 C. & P. 215. 
 T.ittl.'dale, .1. Kex v. Clewes, ibid. 221. 
 
 Kex V. Daniel and Garland, Monmouth 
 Spr. Ass. 1S31, MSS. C. S. G. Ros;ui- 
 ipict, J., saj'iutc, ' The ground I go upon 
 is, that I do not think I am authorized to 
 direct the otticer to read one word instead 
 of another. I cannot tell the othcer to 
 read what is not written.' In Kex r. 
 Giles and Betts, Worcester Spr. Ass. 
 1830, MSS. V. S. a., where there was a 
 parol confession, Littledale, J., said, 'he 
 was satisfied the projier way was to state 
 the names uttei-ed by the prisoner ; as 
 to state ' ' another person " instead of the
 
 CHAP. IV. § I.] Confessions and Admissions. 
 
 and elsewhere, (/) that tlte proiDcr course is to state or i-eacl 
 all the names mentioned by the prisoner in his confession. A 
 learned judge has, however, expressed on several occasions a strong 
 opinion that such a course is unfair. {<j) If, on the part of the 
 prosecution, a confession or admission of the defendant, made in 
 tlie course of a conversation Avith a witness, be brought forward, 
 the defendant has a right to lay before the court the whole of what 
 was said in the same conversation ; not only so much as may ex- 
 plain or qualify the matter introduced by the previous examination, 
 but even matter, not properly connected with the part introduced 
 upon the previous examination, provided only that it relates to the 
 subject-matter of the suit; because it would not be just to take 
 part of a conversation as evidence against a party without giving 
 to the party at the same time the benefit of the entire residue of 
 Avhat he said on the same occasion, {h) But it seems that proof of 
 a detached statement made by a party does not authorize proof 
 by that party of all that he said at that time, but only of so much 
 as can be in some way connected with the statement proved, (i) 
 It seems at one time to have been considered that, if a prosecutor 
 uses the declaration of a prisoner, he must take the whole of it 
 together, and cannot select one part and leave another ; and if there 
 be no other evidence in the case, or no other evidence incompatible 
 with it, the declaration so adduced must be taken as true, {j) But 
 the correctness of this position was doubted, (Z;) and it is now 
 settled that the whole of the prisoner's statement must be taken 
 into cunsideration by the jury, who are not bound to take what lie 
 has said in his favour to be true, because it is given in evidence by 
 
 493 
 
 The whole of 
 confession tr 
 udiuissiou 
 must be 
 stated. 
 
 The jury are 
 to give such 
 credit to any 
 statement in it 
 in favour of 
 the jirisoner vm 
 they think fit. 
 
 name used wms not to state the tnUh, 
 which a witness was sworn to do.' In 
 Kex ('. Hardin^% Bailey, and Sliumer, 
 Gloucester Spr. Ass. 1830, JISS. C. S. C, 
 wliere there was a written confession, 
 Littledale, J., said, 'Suppose two men 
 are indicted, one as ])rincipal, and tlie 
 other as accessory, and the principal is 
 named in the indictment, and the acccs- 
 .sory makes a confession admitting him- 
 self to be accessory to the ]irineipal, how 
 is it to be known that he is accessory to 
 such principal, if the name of tlie piin- 
 cipal is not to be read ''. I have con- 
 sidered this case very much indeed, and I 
 am most clearly of opinion that it is to 
 be read as the prisoner made it, because 
 otlnrwiso the evidence is not read as it 
 \\as given by the prisoner. I have no 
 ijoiibt ujion it, and will not therefore 
 reserve the i)oint.' IJex v. AValkley, G 
 ('. & P. 175, (Uirney, li. 
 
 (/) ]!ex r. Fletcher, 4 C. & I'. 2 jo, 
 Ijttledale, J., at York, S. C. 1 Lew. 107. 
 Hairscase, 1 Lew. 11(1, Alder.son, 13., at 
 Appleliy. Forster's ease, 1 Lew. 11(1. 
 Lord Heuman, C J., at Carlisle. l!e.\ v. 
 Fletcher, siipro, was the cn.se of a letter 
 written by one prisoner, and iiniilicating 
 another. 
 
 {(j) I'arke, H., in Maudsley's case, 1 
 Lew. 110, and l.arstow's ease, ibid. It 
 would be extremely beneficial to prisoners 
 in such cases to lie trieil separately, and 
 
 such a cour.se is nothing more than exjie- 
 dieiit in eases of ditfiiulty, as it is almost 
 beyond the power of a Juiy propeily to 
 discriminate Ix'tween the evidence affect- 
 ing ditt'ereut prisoners. ('. S. G., 
 
 (h) P>y Abbott, ('. J., in the (lueen's 
 case, 2 B. & B. 297. 
 
 (i) Prince r. Sanio, 7 A. & K. (!27. 
 In this case a witness stated that the 
 plaintilf, on the trial of an indictment, 
 had pro\ed that he had been remanded 
 by the court for tin' relief of insolvent 
 ilebtois ; and it was held that the oppo- 
 site counsel could not ask whether the 
 plaintilf had not also, on the same trial, 
 said that an advance was a gift and not a 
 loan ; and the court said that the ilietum 
 of Lord Tenterden, snjin', was extra- 
 judicial. 
 
 (J) By Bosan<|uet, Seijt., in ilex /■. 
 .lones, 2 ('. & P. G:3(i. ."-lo wliere the j>ri- 
 .soner was iiidi' ted for a larceny, and in 
 mldilion to evidence of the posses.sion of 
 the stolen goods, the coiui.sel for tin- ]iro- 
 secutioii i>ut in the prisoner's state- 
 ment made before the magistrate, in 
 which the Jirisoner as.serted that he iu»d 
 bought tlie goods ; tlarmw, J}., directed 
 an acquittal, saying that if a prosecutor 
 used a jirisoner's statement he jnust take 
 (he whole of it tngc-ther. Ibid. 
 
 (/ ) i5y Park, .1. A. .1., in \Ux r. LK.vd, 
 AVoivister.Snm. Ass. 1S:}(1, MSS. C. S.G., 
 and 1 i'hill. Kv. :!!'!•.
 
 494 
 
 Of Evidence. 
 
 [book VI. 
 
 Where a per- 
 son, in whose 
 jiossession 
 stolen pro- 
 perty i« found, 
 gives a reason - 
 aWe account of 
 how he came 
 by it, naming 
 a known per- 
 son from 
 whom he re- 
 ceived it, the 
 prosecution 
 should nega- 
 tive that 
 account. 
 
 tlic prosoctitiii , lull .lie to woi,«fli it, with :ill tlio circnmstanccs of 
 the ease, ami (hhi iniiie whether they btliuve it or not. (l) The 
 jury iiiay, therefore, believe one part of tlie pri.soner'H statement 
 anil (lisl)elieve another, (m) They may believe that part which 
 char"-es the pri.soner, and reject tliat which is in his favour, if they 
 sec sufficient ^rounds for so doing. (//) In (letcnnining whether 
 tlie statement be true or not, the jury should consider whether it be 
 probable or improbable in itself, and whether it be con.sistent or in- 
 consi.stent with the other circumstances of the case, (o) If what 
 he said in his own favour is not contradicted by evidence offered 
 by the prosecutor, nor improbable in itself, it will naturally be be- 
 lieved l)y the jury ; but they are not bound to give weight to it on 
 that account, but are at liberty to judge of it like other evidence, 
 by all the circumstances of the case. (/-») But if, after tlie whole of 
 the statement of the prisoner is given in evidence, the prosecutor 
 is in a situation to contradict any part of it, he is at liberty to do 
 so, and then the statement of tlie i)risoner, and the whole of the 
 other evidence, must be left to the jury, precisely as in any other 
 case, -where one part of the evidence is contradictory to another. (7) 
 The prisoner was indicted for stealing a piece of wood, and it ap- 
 peared that on the piece of wood being found by a police constable 
 in the prisoner's shop, about five days after it was lo.st, he stated 
 that he bought it from a person named Nash who lived about two 
 miles ofl". Nash was not produced as a witness for the prosecution, 
 and the prisoner did not call any witness. Alder.son, B., in sum- 
 mincr up, said, ' In cases of this nature }ou should take it as a 
 o-eneral principle that where a man, in wdiose possession stolen pro- 
 perty is found, gives a reasonable account of how he came by it, 
 as by telling the name of the person from whom he received it, 
 and wdio is known to be a real person, it is incumbent on the pro- 
 secution to show that that account is false ; but if the account 
 given by the prisoner be unreasonable or improbable on the face 
 of it, the onus of proving its truth lies on him. Suppo.se, for 
 instance, a person were to charge me with stealing his watch, and I 
 were to say I bought it from a particular tradesman, whom I name, 
 that is prima facie a reasonable account, and I ought not to be 
 convicted of felony unless it is shown tliat that account is a false 
 one.' (r) 
 
 (/) Rox r. Clewes, 4 C. & P. 221, 
 Littledalo, J. Hex r. Steptoe, 4 C. & P. 
 31»7. PiCX V. Higgius, 3 C. & P. 603, 
 Parke, .1. Kex v. Jones, Monmouth Sum. 
 Ass. 1830, iMSS. C. S. G., Park, J. A. .T. 
 Rex r. Locker, Statlord Spr. Ass. 1S31. 
 Patteson, J. IMSS. C. S. G. 
 
 (m) 1 Phill. Ev. 399. 
 
 (;i) Greeul. Ev. 253, citing Rex v. 
 Steptoe, supra. Rex v. Clewes, supra. 
 Rex V. Higgins, suprn, and Respublica r. 
 il'Carty, 2 Dall. SH, 88. 
 
 (ci) Rex r. Steptoe, su/nr'. Rfx c. 
 Jones, supra. 
 
 (p) Greenl. Ev. 253. 
 
 (q) Rex V. Jones, 2 G. & P. 630. So 
 in a civil ca.se, if a person says, ' that he 
 dill owe a debt, but that he had paid it," 
 such an admission would not be received 
 as evidence to prove the debt, without 
 
 being also evidence of the payment. Per 
 Hale, C. J. Anonymous case, cited 12 Vin. 
 Abr. tit. Ev. A. 23. What he has Siiid 
 in his own favour may perhaps weigh 
 very little with the jury, while his admis- 
 sion against himself may be conclusive ; 
 however, it is reasonable that if any part 
 of his statement is admitted in eWdence, 
 the whole should be admitted. 1 Phill. 
 Kv. 399. See also Smith i: Blaudv, 
 R. & il. X. P. C. 257. Rose i-. Savor'v, 
 2 B. N. C. 145. 
 
 (/•) Reg. r. Crowhui-st, 1 C. & K. 370. 
 In Reg. V. Smith, 2 G. & K. 207, Lonl 
 nenman, G. J., said, 'I quite agree with 
 lug. V. Giowhui-st, which is very correctly 
 reported. It was mentioned to me by 
 Aldersoji, B., when it occurred.' And 
 Loi-d Denman added that in a similar 
 c;ise the magisti"ate should send for and
 
 Chap. iv. § i.] Confessions and Admissions. 495 
 
 The prisoner was indicted for stealing a gun, which was found Where the 
 
 in his possession, and when taken into custody he stated to a t\vo°contnvJic- 
 
 policeman that he had bought the gun on the road from a tally- tory accounts 
 
 man for ten shillings and a gallon of beer ; but when before the ^^ ''o^^' ^^ 
 
 magistrate he stated that Heath, Randall, and himself had found sessed*onn-'o- 
 
 the gun hidden in a hayrick, and that he had given them a shilling perty, it is uot 
 
 each and a pot of beer, and had taken possession of the gun. It incumbent ou 
 
 was urged that Heath and Randall ought to be called for the pro- to TOutradict"^ 
 
 secution, and Reg. v. Croivhiirst and Reg. v. Smith (s) were cited ; either of them, 
 but Piatt, B., held that this case was very different from those 
 cited. Here the prisoner had given two totally different accounts 
 of the way in which he came possessed of the gun ; and it certainly 
 could not be incumbent on the prosecutor to call persons whom 
 the prisoner had referred to in one of two contradictory state- 
 ments, (t) 
 
 Where it appeared that certain cloth had been cut and carried Unless tlicre 
 
 away from a church, and a knife, which was proved to belong to ^^ ^"l-'e/*^ the" 
 
 the prisoner, found on the floor of the church, and in the prisoner's prisoner's 
 
 house several remnants of cloth Avere found, which corresponded statement to 
 
 with the pieces still remaining in the church, and the prisoner '*^ *''"'^' * ® 
 !• 11-11 rr- -111 !• f-111 prosecutor 
 
 being charged with the offence said he knew nothing ot it, and had need not con- 
 bought the cloth of one Lake, who lived a mile off' ; it was con- tradict it. 
 tended on the authority of Reg. v. Crovjliurst (u) that the prose- 
 cutor was bound to call Lake as a witness. It was held, hoAvever, 
 that that was not so ; because the discovery of the prisoner's knife 
 in the church went to show that he himself was the thief, and 
 therefore that the account he had so given was either not true, or 
 not likely to be so. The prisoner, therefore, was properly left to 
 reconcile the finding of his knife with his innocence, by sliowing 
 from Lake that he had come honestly by the cloth notwithstand- 
 ing that fact ; the rule on this matter beiug that the prosecutor 
 was not bound to call persons named by the prisoner, unless his 
 account was evidently true, or there was good reason to believe it 
 to be true till it was contradicted. Here there Avas no such 
 reason, as the facts Avere at variance Avith the story ; but still 
 the story might be true, and it Avas for the i)risoner to make out 
 its truth by calling the man fiom whom he bought the stolen pro- 
 perty, (v) _ 
 
 Upon an indictment against the prisoner for stealing and receiv- Where a pn- 
 ing two Avaistcoats and two pairs of trousers, it appeared that the ^°",('gf^y^"'^ 
 articles Avere stolen on the 2nd of November, and that they Averc property, and 
 sold by the prisoner for tAvelvc .shillings in a public-house optuly, named the 
 Avithout attempt at concealment, on the 4th of November, when ||.^J^'"hc'rc" 
 about thirty persons Avere in the room. To the constable, avIio ceivcd it a.s 
 charged him Avith the felony, the prisoner said. Tucking and Derby soon as charged 
 
 pxaniinc tlic person lupntiom-d, as lie iicsscs in atti-ndaiuf, thonjjh he di>fs n<il 
 
 might cither exonerate the prisoner or rjill them, to avoid tlie eltcct of thi- oli- 
 
 prove his statement to lie false. Sec .servatiou l>y the prisoner's eonnsid that 
 
 also Keg. r. Evan.s, 2 Cox, C C. 27", those ]Kisons miM liave snl»tMiiti.ited 
 
 vol. 2, p. 279, as to the imi)robahilities the priscjuer's defence, but that he was too 
 
 of a prisoner's statement. poor to procure their attendance.' 
 
 (s) Supra.. (u) Siipnu 
 
 (0 Eeg. V. Diblev, 2 C. & K. 818. (v) Reg. v. Ilarmer, 2 Cox, C C. 487, 
 
 Piatt, B., added, ' I think it might be Polio. k,(". P.. 
 prudent in the prosecutor to liave the wit-
 
 4 1) (J 
 
 with the 
 offence, it was 
 held tliiit tlicic 
 wius iKiiiir evi- 
 dence fiT the 
 jury, th(iii;^h 
 
 tho.sC lt(!l"S01lh 
 
 wui"e nut 
 t:iille<l. 
 
 As to the 
 mode of iii- 
 trodiicing 
 confessions 
 evidence. 
 
 Of Evidence. [jiOOK Vi. 
 
 liruii'-lit tliciii ti) my house, and the woman who keeps my hoUsc 
 (Mrs. Wilson) will say so, and I, being on the spree, sold thuni and 
 spent the money.' In consecpience of this statement Cocking and 
 Dnlty were appreliended, and the former convicted of stealing 
 iirtieles taken at the same time from tin' pnj.secutor's hou.se ; V^ut 
 J)erl)y w;is discharged for want of evidence. The constahle went 
 to Mrs. Wilson, and made impiiries as to the prisoner's statement, 
 but no evidence of what transpired on those inquiries was received. 
 It was ur'ed that, as the prisoner had stated how he came into 
 po.ssession of the articles, and had mentioned the names of real 
 persons from whom he had received them, it was incumbent on the 
 prosecution to negative his statement if false, by calling Cocking, 
 Derby, and Mrs. Wilson ; but the sessions overruletl the ol)jection, 
 and the prisoner was convicted of stealing ; and, upon a case 
 reserved upon the question whether, under the circumstances of 
 the case, wliich rested solely on a recent possession of the stolen 
 ooods, it lay on the pro.secution to call the persons to whom the 
 prisoner referred, or some of them, to account for his possession, it 
 was held that there was evidence for the jury, upon wliich the pri- 
 soner might be convicted ; but Pollock, C. B., said, ' I should be 
 sorry that, upon siich evidence, any prisoner should be convicted 
 before me.' (iv) 
 
 For the purpose of introducing a confession in evidence, it is 
 unnecessary, in general, to do more than negative any promise or 
 inducement held out V)y the person to whom the confession was 
 made, (.r) In a trial for murder, it was proposed to give in evi- 
 dence a statement of the prisoner, made in prison to a coroner, fot 
 whom the prisoner had sent. It however appeared that, previous 
 to this time, Mr. Clifton, a magistrate, had had an interview with 
 tlie prisoner, and it Avas suggested, on behalf of the prisoner, that 
 he might have told the prisoner that it would be better to confess, 
 and that, therefore, the counsel for the prosecution were bound to 
 call him. Littledale, J., ' As something might have passed between 
 the prisoner and Mr. Clifton respecting the confession, it would be 
 fair in the prosecutors to call him, but I will not compel them to 
 do so. However, if they will not call him, the prisoner may do so 
 if he chooses.' (?/) So where a prisoner being in the custody of two 
 constables on a charge of arson, one Bullock went into the room, 
 and the prisoner immediately asked him to go into another room, 
 as he wished to speak to him, and they went into another room, 
 when the prisoner made a statement ; it was urged that the con- 
 stables ought to be called to prove that they had done nothing to 
 induce the prisoner to confess. It was evident that the prisoner 
 acted under some influence, as he first proposed going into another 
 room : and Hex v. Simikins (c) Avas relied upon. Taunton, J., 'A 
 
 {it') Eeg. r. Wilson, D. & B. 157. The 
 chairman told the juiy that the con.staljle 
 having made iniiuiries wliich satisfied him 
 (hut the case does not state thist, it was 
 n"t necessary for the prosecution to call 
 the persons to whom the prisoier referred. 
 On the contrary, however, it \jould rather 
 seem that the fact that the constable did 
 not think the persons named should be 
 called for the pro.se. ution, ath^vls an in- 
 
 f(>rence that they would have supjiorted 
 the prisoner's statement. C S. G. 
 
 (.>.) 1 Phill. Ev. 4UI>. 
 
 (>/) IJex V. Clewes, -t C & V. 2-21. The 
 counsel for the prosecution declined t'> 
 call Mr. Clifton, and he was called and 
 examined l>y the prisoner's coun.sel. See 
 this case, aiU'; ]>. 494. 
 
 (:) In I'm.
 
 CHAP. IV. § 1.] Confessionfi and Admissions. 497 
 
 confession is presumed to 1)0 voluntary unless the contrary is 
 shown ; and as no threat or proniise is proved to have been made 
 by the constables, it is not to be presumed.' Having consulted 
 Littledale, J., his lordship added, 'We do not think according- to 
 the usual practice that we ought to exclude the evidence, because 
 a constable may have induced the prisoner to make the statement ; 
 otherwise we must in all cases call the magistrates and constables, 
 before whom or in whose custody the prisoner has been,' («) 
 
 But if there be any probable ground to suspect that an officer, If there lie 
 in whose custody a prisoner has previousl}^ been, has been guilty !!"o,i|"i'to '^^s- 
 of collusion in obtaining a confession, such suspicion ought to be pect that an 
 removed, in the first instance, by the prosecutor calling such o'^'-'ei- '"^^ i>'>- 
 officer. Upon an indictment for arson, it appeared that a con- J'.|iI||!Ji .|c,'„',. 
 stable, who was called to prove a confession, went into a room in fes^on, such 
 an inn, where he found tlie prisoner in the custody of another officer ougiit 
 constable, and as soon as he went into the room, the prisoner said 
 he wished to speak to him, and motioned the confutable to leave 
 the room, wdiich he did, and left them alone. The prisoner im- 
 mediately made a statement. The witness had not cautioned the 
 ]jrisoner at all, and nothing had been said of what had passed 
 between the constable and the prisoner before the witness entered 
 the room. It Avas contended that the other constable must be 
 called to show that he had used no inducement to make the pri- 
 soner confess. Patteson, J., ' I am inclined to think the con- 
 stable ought to be called. This is a peculiar case, and can never 
 1)0 cited as an authority, except in cases where a man being in the 
 custody of one person, another who has nothing to do with the 
 case comes in, and the prisoner motions the first to go away. I 
 think, as the witness did not caution the 'j)risoner, it would be 
 unsafe to receive the statement. It would lead to collusion 
 between constables.' {h) 
 
 In order to induce the Court to call another officer in whose it must api-car 
 custody the prisoner had been, it must appear either that some either that 
 inducement had been used, or some express reference made to u,ent has hecn 
 such officer. A prisoner, when before the committing magistrate, used, or some 
 having been duly cautioned, made a confession, in which he express retVr- 
 ;illuded to a confession which he had previously made to Wil- jii-j,*!,, t,„Vu' 
 Jiams, a constable; it was submitted that Williams ought to be othcer, iu 
 called to prove that he had ii(»t used any inducement. Little- wier to make 
 dale, J., ' Although I do not think it necessary that a constable, o„'"i^c"i"rrs"- 
 in whose custody a prisoner has been, shoukl be called in every cut<irtocall 
 case, yet as in this case there is a reference to the constable, I ^ich officer, 
 think he ought to be called.' Williams was then called, and 
 ])r(.)ved that he did not use any undue means to obtani a con- 
 fession : but ho had received the ])ri«i)ner from Marsh, anotlu'r 
 
 (f() Upx v. "\Villi;iins, Clourestor Spr. the room for tlio luiijioso of licin^' a 
 
 Ash. 1832, MSS. ('. S. C. Tlicstntcniciit witness, ami that he was m.t rhar;,'c(l 
 
 WHS rejected on amitlur gicunid. See witli the oHencc till afli-r tlie statement 
 
 (iii'i',l>. 458. was made. Tatteson, .1., ' If lie wa.s not 
 
 ill) Hi'X r. Swatkins, l ('. Sc V. fiJS, under any chari^'e, tinit varies the case. 
 
 and MSS. ('. S. (!. It nfterwaids aii- As he was fit that time attendinj^ ns a 
 
 peared tliat the prisoner had gone voliin- witness, and was not in enstudy on any 
 
 tavily before the magistrates at the inn, cliarge, 1 shall nvcive the statement in 
 
 and then ran away, was brought liaek liy .'vi.l.Miee, without puttHig the pros.>eutor 
 
 til" I'Oiistable, and ilitainrd'bv liini in tn .mII the nthrr "onslabh'. '
 
 4!)S 
 
 Of KridciKU 
 
 [book VI. 
 
 Wlicie a loii- 
 fcssion li.'us 
 liccii rightly 
 i-coeivctl (111 ;i 
 trial iu the 
 tirst instiincc, 
 aiul it is 
 afterwarils 
 .•-iiown that it 
 was unduly 
 obtiiincil, ami 
 yet such con- 
 fession is left 
 to the jury, 
 the conviction 
 of the prisoner 
 cannot be 
 supported. 
 
 cniistahlt', ;iiiil tin- |»iis(iii<r li;i<l iii.ulc sotnc statement to Marsli. 
 ]t was tlii'ii tirg(<l that Marsli .sliould \)v. calloi). Littlrd.-ilo, J., 'I 
 <1() iKjt tliiiik it i.s nccossary that a coiistal)I(' should he; callfd, iiidcs.s 
 it ;ij)])('ar that simic promise \v;i.s <,dv('ii, or s<jiiic cxpioss roO'i-oiice 
 w.-is made to tlu' constal)lo. Thore was a distinct reference made 
 1o VVillianis, and therefore I thon;,dit he niu.st be called ; btit 
 there is no reference to Marsli. It dtx'snot appear either that any 
 ct)nfession was made to i\larsh. It only appears that a statement 
 was made ; that might be either a confession, a d<'inal, (jr an ex- 
 cidpation.' ('■) 
 
 Upon an indictment for administering poison with intent to 
 mtirder, it ajjpearcd that the prisoner liad given her mistress some 
 milk, in wliieh a quantity of fag water had been mixed. Fag 
 water i.s a mixture of arsenic, soft soap, and water, used for dressing 
 sheep. In order to prove that the prisoner liad put the fag water 
 in the milk, that slie knew the nature of it, and intended to murder 
 lier mistress, her own confession to Air. Gilby, a medical man, 
 made in the presence of the prisoner's mistress and her husband, 
 was oftcred in evidence. Gilby swore that he did not tell the 
 prisoner that it would be better or worse for her to tell ; that he 
 used no threats or ])romises, nor did any one else : before Gilby's 
 arrival the prisoner had not made any confession, nor had any 
 threats or promises been held out to her. Patteson, J., admitted 
 the prisoner's statement to Gilby, who said, 'I asked her if she 
 had given the woman anything iu her milk ; she said she had 
 mixed fag Avater Avith the milk ; she had put in half a teacupful. 
 I asked her if she was aware of the nature of it ; she said she 
 knew it was poison ; she thought it would kill the Avoman ; she 
 had done it to be released from her service.' A Avoman Avas then 
 called Avho Avas present at this conversation, and she swore that 
 Gilby told the prisoner in the presence of her mistress and her 
 husband, that it would be better for her to speak the truth. She 
 could not tell Avhether he had told her so before he asked her 
 Avhat she had done ; but it Avas before she answered. Gilby, being 
 recalled, said, 'I coidd not positively swear that I did not tell the 
 prisoner that it Avould be better for her to tell the truth ; I don't 
 recollect that I did. It is very likely I might tell her it Avould be 
 better for her to tell the truth.' The counsel for the pri-soner 
 contended that the confession ought to be struck out of the judge's 
 notes, and not submitted to the jury ; but after consulting Lord 
 Denman, C. J., Patteson, J., declined to strike out the evidence 
 of the confession, and put the Avhole to the jury, feeling that 
 it Avas impossible, after they had heard the confession, to ex- 
 pect that they could Aveigh and consider the other facts in the case 
 Avithout reference to the confession ; and in truth those other facts 
 
 (<■) Ecx r. "Warner and ^[orgaii, Glou- 
 cester Spr. Ass. 1832, JISS. "c. S. G. 
 The prisoner's lOiinsel then proposed to 
 call Marsh, which was olijected to as not 
 being at the proper time, but Littledale, 
 J., said, ' It is nnu'h the more convenient 
 time to do so. If it should afterwards 
 turn out that the confessions were in 
 consequence of what Marsli had s;ud, 
 they must all br struck out, but it would 
 
 be veiy dilliiult to do away with the 
 impression they niight have made on the 
 mind of the .juiy.' Jlarsh was then calletl 
 for the prisoner, and proved that when 
 the prisoner was in his custody it was 
 not for the oUeuce for which he was then 
 being tried. See this case, anU, p. 452. 
 This case wa.s tried at the same as.sizes .is 
 Hex r. AVillianis. snjoa, but after that 
 case had liecn tried. G. S. G.
 
 CHAP. IV. § II.] Statements he/ore Magistrates. 499 
 
 by themselves would not have -warranted a conviction. The jury 
 convicted, and upon a case re.served upon the question Avhethcr 
 the right course had been pursued, Patteson, J., said, ' I think if 
 it had appeared in the first instance that the medical man had used 
 the words "it would be better for you to speak the truth," I should 
 have excluded the evidence of the confession. The only question 
 is, whether, when tliat evidence had been properly admitted, which 
 was the case here, I ought to have struck it out of my notes, after 
 proof that the confession was not voluntary. Tlie prisoner was 
 certainly bound to show that it was not so ; but that being proved 
 by the second witness, I think I should have treated the evidence 
 of the confession as though it had been inadmissible in the first 
 instance.' Pollock, C. B., ' We are all of opinion that the con- 
 viction cannot be sustained.' {<!) 
 
 c. \i. 
 
 Sfx'. II. 
 
 Statements of Accused before Magistrates. 
 
 The cases in the foregoing section are applicable to confessions Examination 
 
 by prisoners generally; the subject of confessions, contained in ?^?'"®*'"®^ 
 
 the statements of prisoners before the committing magistrate, tiate. ° 
 remains to be considered in the present section. 
 
 (a) Present enactments, p. 499. 
 
 (6) Mode of taking prisoner's examination, p. .502. 
 
 (c) Proof of statements. Impeaching same, p. ,'504. 
 
 (a) Present Enactments. 
 
 The 11 & 12 A^ict. c. 42, (t-) s. 84, repeals so much of the iKti-jVict. 
 7 Geo. 4, c, 64, ' as relates to the taking of bail in cases of fcK)!)}-, 
 and to the taking of the examinations and informations against 
 persons charged with felonies and misdemeanors, and binding- 
 persons by recognizance to prosecute or give evidence.' (/") 
 
 ('/) l{og. V. Giiniur, 1 Den. ('. C. 320, 2 lianUy in any ease l.e foir/;/ trie-l, Iiow- 
 (\ & K. !t20. All that is rcporteil to have ever niueii the jufl^c may endeavour to 
 fallen from tin' judges on the jioiiit i.s induce the Jury to throw the eoiil'es.sion 
 stated, heeause in the mars^inal note in out of their eonsideration, and it deserves 
 ] )en. ('. ('. it IS sLatetl to have been ind'i, consideration whetiier, in order t" prevent 
 'that althouj,di the ronfe.ssion was ri^ditly the injury that nd^dit thus arise to a pri- 
 admittedby thejndf^ein theiirstinstaiiee, .soner, the Judge would not be well war- 
 and taken down l)y him as evidence, lanteil in discliarging the Jury, in order 
 il shoulff hr struck out of his notes afti'r that the prisoner might In- tried bv 
 proof by the prisoner that it liad been another Jury. Newton's case, ];{ (). );". 
 made under the above inducement.' It 71'>. It might bo well in su<h a case to 
 is i>lain tiiiit the dieision only warrants ask the jirisoner, whether hewisheil the 
 the marginal note 1 have altove inserted, Jnry to be discharged on tiiat ground, 
 especially as the evidence besides the and to discharge the jury upon his de- 
 confession would not have warranted a siring it. (.'. S. G. 
 
 conviction, and therefore was not enough (-•) The Irish Act. 12 & ];5 Vict. c. 
 to go to the Jury. The marginal note G!', is similar to tiiis enactment, and re- 
 in (.'. & K. is etpially erroneous. \Vliere jieals Jt (Jeo. 4, o. T}\, .ss. 2 A: 3. The 12 
 a jury have heard a confession proved, it 13 Vict. c. till, is repealed by H & 1;"> 
 which afterwards t\irns out to have been \'ict. c. JI3. 
 
 improperly obtained, the prisoner can (/) The 7 (!eo. 4, c. (Si, repealed prior 
 
 K K 2
 
 r)00 ( fj' Kciih'ltCi'. [liUoK VI. 
 
 Till Hit I-: Src. 1, ^ivcs jurisdiction to magistrates over 'any treason, 
 
 Viti. c. IJ, rdnny, or inilict.ililc misdenu'nnor, or other indictable offt-nce 
 h. 1, Kivcs wliiitsoever,' .nid provides for tin- mode of brinj'infj any person, 
 
 justicfH juris- ' . I . 1 ,■ I • ".",•'' , 
 
 ilirtioTi over who has coniniittt'd, or is suspcctc<^l or havin^r conitnitted, any swell 
 nil iiiilictal'li! offLMicc, before u justice ; and by sec. 17 enacts that 'in all cases 
 otTfinos. wlicrc any person shall appear or b" l)roui;ht bffcnc any justice or 
 
 I'Aainiimtion i,,.sticcs of tlic peace charwd with any indictable offence, whethtr 
 (■(lUiniitted in England or Wales, or upon the high seas, or on 
 1,1 ud beyond the sea, or whether such person appear voluntarily 
 upon sumiuons, or have been apprehended, with ox without 
 warrant, or be in custody for the same or any other offence, such 
 justice or justices, b(;fore he or they sball commit such accused 
 person to prison for trial, or before he or they shall admit him to 
 bail, shall, in the presence of such accused person, who shall be at 
 liberty to put questions to any witness produced against him, 
 lake the statement (M.) on oath or affirmation of those who shall 
 know the facts and circumstances of the case, and shall put the 
 same into writing, and such depositions shall be read over to and 
 signed respectively by the Avitnesses who shall have been so 
 examined, and shall be signed also by the justice or justices 
 taking the same ; {(j) and the justice or justices before whom any 
 such witness shall appear to be examined as aforesaid shall, before 
 such witness is examined, administer to such witness the usual 
 oath or affirmation, which such justice or justices shall have full 
 power and authority to do ; and if upon the trial of the i)crson so 
 accused as first aforesaid it shall be jn-oved, (/<) by the oath or 
 affirmation of any credible witness, that any person whose deposi- 
 tion shall have been taken as aforesaid is dead, or so ill its not to 
 be able to travel, and if also it be proved that such deposition was 
 taken in the presence of the person so accused, and that he or 
 his counsel or attorney had a full opportunity of cross-examining 
 the Avitness, then, if such deposition purport to be signed by the 
 justice by or before whom the same purports to have been taken, 
 it shall be lawful to read such deposition as evidence in such 
 prosecution, without further proof thereof, unless it shall be proved 
 that such deposition was not in fact signed by the justice purport- 
 ing to sign the same.' {i) 
 After examiii- Sec. IJS. 'After the examinations of all the witnesses on the 
 ation of the pj^^.^ ,-,f ^j^^^ prosecutiou as aforesaid shall have been completed, the 
 
 ■Witnesses . , ^ , , * 
 
 jnstioe to real jwstice of the peace, or one of the justices by or before whom such 
 
 ihcir iicposi- examination shall have been so completed as aforesaid, shall, 
 
 tions to the without requiring the attendance of the witnesses, read or cause 
 
 lantion him as b) be read to the accused the depositions taken against him, and 
 
 to any state- shall say to him these words, or W(^rds to the like effect : " Having 
 
 cnaetnu-nts, 1 k 2 V. & M. c. 13, s. 1, as to taking the examination of any per- 
 
 and '2 & 3 1'. & M. c. 10. These two son suspected of cansinf; the ilcatli of any 
 
 last-mentioned statutes did not a]>ply to person on whose body the inquisition is 
 
 misdemeanors or liii,'li treason. Jicx v. licld. 
 
 Paine, 1 Salk. 2S1. S. (.'. 1 Lord Kaym. (</) See posf, p. 520. 
 
 72!», cited by Lonl Kenyon in Hex c. {h) See Duke of Beaufort r. Crawsliav, 
 
 Kriswell, 3 T. K. 723. 1 Hale. 30ti. 35 L. .T. C. P. 342. 
 
 See RadV>ourne*s case, 1 Leach, -J.^r. See. (/) The Irish Act, 14 iVl.=)Vict. c. 03, 
 
 4 of 7 Geo. 4, c. 64, prescrilies the duty .■!. 14, Xo. 1, is simikr to this clause ; 
 
 of coroners upon inquisitions in i>utting hut omits the words 'or so ill .is not to 
 
 the evidence in writing and liindinj; over be able to travel.' 
 
 the witnesses, but i'ont:un> no provision
 
 CHAP. IV. § II.] Statements he/ore Mdcjistrates. 501 
 
 heard the evidence, do you wish to say anythiuo^ iii answer to the mont lie may 
 charge ? you are not obliged to say anything unless you desire io '"''''"^ > 
 do so, but whatever you say will be taken down in writing, and 
 may be given in evidence against you upon your trial ; " and 
 whatever the prisoner shall then say in answer thereto shall be 
 taken down in writing (N.), and read over to him, and shall be 
 signed by the said justice or justices, and kept with the deposi- 
 tions of the witnesses, and shall be transmitted with them as 
 hereinafter mentioned ; and afterwards, wpow the trial of the said 
 accused person, the same may, if necessary, be given in evidence 
 against him, without further proof thereof, unless it shall be 
 proved that the justice or justices j^urporting to sign the same did 
 not in fact sign the same : provided always, that the said justice or i^V"^ iuf'jiia 
 justices before such accused person shall make any statement shall ii.|!*'nothin''^to 
 state to him, and give him clearly to understand, that he has iioije or fear 
 nothing to hope from any promise of favour, and nothing to fear from either 
 from anv threat wliich may have been holden out to him to induce 1'"^™'*'*^°' 
 
 " 1 1 ■ • f • r ^ ■ -11 threat. 
 
 ijuii to make any admission or contession oi Ins guilt, but that 
 Avliatever he shall then say may be given in evidence against him 
 upon his trial, notwithstanding such promise or threat : provided 
 nevertheless, that nothing herein enacted or contained shall pre- 
 vent the prosecutor in any case from giving in evidence any 
 admission or confession or other statement of the person accused 
 or charged, made at any time, which by law would be admissible 
 as evidence against such person.' 
 
 (N). ' Statement of the Accuised. 
 
 ' : A. B. stands charged before the undersigned, [0/>e] 
 
 of Her Majesty's justices of the peace in and for the [counti/] 
 aforesaid, this day of in the year of our 
 
 Lord for that he the said A. B. on at 
 
 [(Co., ^^s ill the aqytion of the depositions] ; and the said 
 charge being read to the said A. B., and the witnesses for the 
 prosecution, C. D. and E. F., being severally examined in his 
 presence, the said A. B. is now addressed by me as follows : 
 " Having heard the evidence, do you wish to say anything in 
 answer to the charge ? you are not obliged to say anything unless 
 you desire to do so ; but whatever you say will be taken down in 
 writing, and may be given in evidence against you upon your 
 trial ; " whereupon the said A. B. saith as follows : — 
 
 ' [Here state v.-hatever the jyi'isoner may saij, and in his very 
 2voi-ds,as ncarty as 2)ossU}le. Get him to si</n it if he will.] 
 
 'A.B. 
 
 ' Taken before me at the day and year first above 
 
 mentioned.' (/.) ' J- S.' 
 
 By sec. 20, ' the several recognizances (of the prosecutor and Dei>ositions 
 witnesse.s), together with the information (if any), the depositions, •■>'"' 8^»tf- . 
 the statement of the accused, and the recognizance of bail (if any) "oneJjJybc'' 
 
 (A) 15y soo. 28, 'the several forms in Le ileeniud good, valid, and sullkient in 
 tile schedule to this Act contained, or law.' 
 forms to the same or the like ellect, shall
 
 502 
 
 rrtUI'llt'il I" 
 the tiiiiil 
 wluTC llui 
 tii.il U to I'l'. 
 
 Oliscrvalinns 
 oil 11 & 12 
 Via. -■. J'i 
 ss. 17 mill 1! 
 
 < >/ KridcHce. 
 
 [book VI. 
 
 ill (vciy siirli cMse, sliiiU bo dclivert'il Ity the s,ii<l justice or 
 just ices, ur III- or tlicy shall causr; tlic saiiiL- to b<; dt'livered, to the 
 nropcr olliccr of the court in which the trial is to he had, before 
 or at the opeiiiiij^' of the said court, on the first day of the sitting 
 thereof, or ;it such other time as the jiid",^', recorder, or justice, 
 who is to |»r<.'.->i(h' in such cuiirt at the said trial, shall order and 
 appoint.' 
 
 An attentive perusal of the l!Sth section of this Act show.s that, 
 as far as it relates to what is to be done by the justice in cautioning 
 the accused and taking down the statement, the clause is merely 
 mandatory; it commands what shall be done, but it does not state 
 what shall l)e the conscijuence, if any, of any neglect to comply 
 with its directions. In this respect it is similar to the previous 
 enactments, and imder them it was settled that a non-compliance 
 with their requirements did not exclude the proof of what the 
 accused might have said before the magistrate ; but that if the 
 written examination were irregular, or no (/) written examination 
 had been taken, the statement of the prisoner might be proved 
 by any evidence which was applicable to such a state of things ; 
 and a similar construction has been put on the new clau.se. 
 "Whenever, therefore, a case occurs in which the provisions of the 
 new clause have been so far neglected that the prisoner's statement 
 cannot be admitted under that clause, the question will arise 
 whether it is otherwise admissible. 
 
 There is a difference between sec. 17, relating to depositions, 
 and sec. 18, relating to examinations of prisoners, which de- 
 serves notice. By sec. 17, if on the trial it is proved that a 
 witness is dead or too ill to travel, and that the deposition was 
 taken in the presence of the accused, and that there was a full 
 opportunity for cross-examination, then ' if tiiich depos'it'iOii 'pur- 
 port to he signed hij the justice by or before whom the same pur- 
 ports to have been taken, it shall be lawful to read such deposition 
 as evidence in such prosecution without further proof thereof,' 
 unless it shall be proved that such justice did not sign it. But 
 sec. 18 omits the words in italics. These words in all probability 
 were omitted accidentally in this clause ; and it seems that this is 
 so, for the Iri.sh Act, 12 t.'»c 13 Vict. c. 09, s. 18, after the words 
 ' without further proof thereof,' in.serts, ' if the same purport to be 
 signed by the justice or justices by or before whom the same pur- 
 ports to have been taken.' 
 
 When find how 
 the prisoner's 
 examination 
 should be 
 taken. 
 
 (6) Mode of Taking Prisoner's Examination. 
 
 The proper time for taking the examination of a prisoner had 
 always been held to be after the witnesses have been examined, 
 and he has heard what they have deposed against him ; {m) and it 
 is expressly made .so by the new clause. 
 
 The cautions to be given by the magistrate are pointed out by 
 the Act {aide, p. 500). 
 
 It ought to be left entirely to the accused whether he will make 
 
 (Z) R. V. SI'Dermott, 6 Cox, C. C. 
 479, cannot be supported. 
 
 ^ml Rex V. Fagg, 4 C. & P. 566, Gar- 
 
 row, B. Rex V. Bell, 5 C. & P. 
 Rex V. SpUsburj", 7 C. i P. 1S7. 
 
 162.
 
 CHAP. IV. i^ II.] Statements he/ore Magistrates. 503 
 
 any statement or not ; he ought not to be dissuaded from making a 
 perfectly vohmtary confession, because that is to shut up one of 
 the sources of justice.' (??-) A. prisoner is not to be entrapped into 
 making any statement ; but wlien a prisoner is wiUing to make a 
 statement, it is the duty of the magistrates to receive it. {o) 
 
 It seems that a statement made by a prisoner in answer to a iMagistrate 
 question put by the committing magistrate is admissible in evi- putting ques- 
 dence. {p) But, as a general rule, it seems that a magistrate ''^"^jje',. 
 ought only to put questions to a prisoner for the purpose of his 
 explaining what he has said. But questions calcnlatod to lead to 
 answers prejudicial to the prisoner should not Ije asked ; and the 
 power should in ever}'' case be used with caution and discretion. 
 
 A prisoner indicted for murder was apprehended on that charge, 
 and immediately taken before the magistrates. An appraiser took 
 notes of what passed, but they were not signed by any one. The 
 prisoner was asked one or two questions by the magistrates, to 
 which he gave certain answers, after which he was remanded. It 
 was objected that the magistrates had no right to put these ques- 
 tions ; they were tied down by the 11 k^'l A^ict. c. 4:^, ss. 17 & 18 
 to a particular mode of procedure. It was answered that this 
 matter fell within the proviso in sec. 18. Wilde, C. J., refused 
 to receive the evidence. If this sort of examination were received 
 in evidence it was hard to say where it might stop. A person in 
 custody, or in other imprisonment, questioned by a magistrate, 
 who has power to commit him, and power to release him, might 
 think himself bound to answer for fear of being sent to gaol. 
 The mind in such a case would be likely to be affected by the very 
 influences which render the statements of accused persons inad- 
 missible, {q) 
 
 Where on the hearing before the magistrate on a cliarge either 
 of the murder or concealing tlie l)irth of her child, after the pri- 
 soner had been cautioned in the usual manner, and had stated that 
 she had nothing to say, the magistrate, before committing her, 
 asked her where she had put the body ; Erie, J., refused to allow 
 the answer to be given. The question ought never to have been 
 put, and it would be very unfair towards the prisoner to receive in 
 evidence an answer so irregularly elicited. (/•) 
 
 The examination of a prisoner ought to be taken ddwu in liis In wliat wmJs 
 
 very words as nearly as possible, (.v) Where, before the late Act, t'"-'.«-'-^=»»"- 
 •J , 1-1 ;/ • 11, •, nations slioulu 
 
 it appeared to be m language tlie prisoner (.lul not use, it was i,^. taken, 
 not admitted in evidence against him. {f) 
 
 The examination of a prisoner must not be taken upon oatli. {u) Xoi mionoaili. 
 
 The examination of a prisoner, when reduced into writing, sijjning iiy the 
 
 (/<) IVr (iuiiicy, 1). Ivt'X r. (Jivi'ii, ."» wiliu'ss liail bciMi exaiiiiii-'d, kr. 
 C. &P. 312. " (/■) Kt'K- ■"'• l''i'niiiian, li (\>.\, < '. ('. 
 
 (o) Keg. V. Amol.l, 8 C. .^ 1'. (J'Jl. 388. 
 Lord Denman, C. J. (■•>•) Sw nnlc, )>. r.t»l. 
 
 {p) Sec Ke.\ v. .Tones, C'air. Supii. 1:57, (/) Hex v. Se.xtim, 1 Huni. .lu>t. U.iyl. 
 
 C. h V. 239.«. R. V. Barllett, 7 C. & 1'. & Wins. IdSii, iiHt,-,^. . Tin- ]pn.|..T 
 
 832. R. r'. Reos, 7 C & V. 5(38. R. t'. loiirse is to take tlie examination in tiie 
 
 Ellis, R. & M. N. 1'. R. 432. lUit sec liist person, r. ;/. ' I ilid so an. I so," &<•. 
 contra, R. v. Wilson, Holt, N. P. (.'. (u) Wliere a written examination jne- 
 
 597. vious to conimitt^il luirporteil to liave 
 
 iq) Reg. V. Pettit, 4 Cox, C. C. 104. been taken npon oatii, it was lieM tliat 
 
 In this ease the proceedings of the ma- evidence was not admissible to show that 
 
 gistrates were clearly irregiihiv, as no in fact it was not so taken, unl' , p. 473.
 
 .■j()4 ( >/' /■^(•idciirr. [jJooKVI, 
 
 luimihtrute ami nii-lil I') l>i' I'M'I ovci In liiiii, ami likewisu t«^ii(luiu<l to liiiii for his 
 
 ilio pri-'.ncr. si'^iiatiin'. Ami l>v tlin liiti- statute ('.') tlio Tiia^istr.itu is cxpn.vsnly 
 
 r.-(|iiin't| to suhsciihe it. Tlio sit,ni:uui-e, liowover, of tlio prisoiifr 
 
 is mil r<'i(iiirc(l Wy tli<' statute, l>ut Ik.' is to l>c got to siirn it if li'; 
 
 will, {i") 
 
 K.Miininiitiiius 
 
 llUNV JilOVt'll 
 
 iiiulor tlic ii'-w 
 tiditnlu. 
 
 (f) Proof of Statements. Inipeachlng Same. 
 
 By tlu; ] 1 & 12 Vict. c. 42, s. 18, where a prisoner's examination 
 is retiaiK.'d with the ilepositions, and is in tin; proper form, it is 
 adniissible without any proof of the; prisoner's or jnagistrate's 
 signature, (.c) It is read by the otHc(,'r of the court, (ij) 
 
 When a party charged with an indictabh^ offence before a 
 magistrate is asked by the magistrate, pursvumt to the statute 1 1 
 & 12 Vict. c. 42, .s. 1(S, whetlier lie wishes to say anything in answer 
 to the charge, and is told by the magistrate that he is not obliged 
 to .say anything, unless he desires to do so, but that whatever he 
 says will be taken down in writing, and may be given in evidence 
 against him upon his trial, and the prisoner thereupon makes a 
 statement which is taken down ; and the deposition containing it 
 is duly returned, and bears upon its face that such caution has 
 been given, and purports to be signed by the magistrate, and there 
 is no evidence that any threat or promise has been held out to in- 
 duce a confession from the prisoner ; the deposition may, without 
 further proof, be read in evidence against him on his trial, although 
 the magistrate did not comply with the directions in the first 
 proviso to the above-mentioned section, and give the prisoner to 
 understand before he made his statement that he had nothing to 
 hope froin any promise of favour, and nothing to fear from any 
 threat which might have been held out, but that what he should 
 then say might be given in evidence agamst him, notw^ithstanding 
 such promise or threat. Semhle — that the last proviso to the same 
 section overrides the wdiole section, and lentlers admissible in 
 evidence against a prisoner any statement made by him cither 
 before a magistrate or on any other occasion, which independently 
 of the statute would bv law be admissible as evidence against 
 him. (z) 
 
 (vj 11 .^ 1-2 Vkt. c. 4-?, s. 13, (oik, 
 p. 501. 
 
 (iv) Seethe fonu in the schedule, autt', 
 p. 501. 
 
 (x) Ante, p. 501. As to proving 
 the examination before the above Act, 
 see 2 Hah', r. C. 5-2, 284. 1?, r. 
 Kichanls, 1 M. & Kob. 396. R. r. 
 (."liapjiell, 1 M. & Kob. 395. Smiths 
 ease, 2 Lew. 139. K. v. Christance, 1 
 Co.\, C. (.". 143. In the three latter cases 
 the prisoner had jiut his mark to his 
 examination. K. v. Hope, 1 M. & Kob. 
 3i»G. 7 C. & P. 136. K. V. Taylor, 7 
 (.'. &P. 136 /I. In the two latter cases 
 there was an attesting witness who was 
 called. Hobson's case, 1 Lew. 66. 
 Priestlcv's ease, 1 Lew. 74. R. r. Foster, 
 7 C. k \\ 148. R. V. Spencer, 1 C. & V. 
 260. R. r. Rees, 7 C. & P. 568. R. v. 
 
 Reading, 7 C. & P. 649. It. c. Hearn, 
 C. & M. 109. 
 
 ((/) K. V. Swatkins, 4 C. & P. 548. 
 
 (;) R. V. Sansome, 19 L. J. U. C. 14-3, 
 et per Lord Campbell, C. J. In this 
 case it apjiears that the deposition had 
 been signed by the prisoner as well as by 
 the magistrate. It is, therefore, clearly 
 admissible in evidence at common law, 
 unless there is some provision in the 
 statute to exclude it. It has been 
 argued that the statute makes it a condi- 
 tion precedent to its admissibility that 
 the nia^sti-ate should have informed the 
 prisoner that he had nothing to hope 
 from favour, or to fear from any threat 
 that might have been held out. There 
 was r.o evidence here that any promise or 
 threat had been held out by way of iu- 
 inducemeut. AVe think, therefore, th.t
 
 CHAP. IV. § IL.] Statements he/ore Magistrates. 
 
 After takinsf tlie examination of tlio witnesses on a charo'e of 
 felony against the prisoner, the magistrate cautioned the prisoner 
 in tlie hmguage prescribed by sect. 18 of the statute 11 & 12 Vict. 
 c. 42, but did not, as the proviso to that section requires, tell the 
 prisoner that he had nothing to hope from any promise of favour, 
 or to fear from any threat. The prisoner then made a statement, 
 which was taken down, but was not signed by the prisoner or the 
 magistrate. The prisoner, after a remand, being brought again 
 before the magistrate, some questions were put to the witnesses by 
 the prisoner's attorney, who then objected to the statement being 
 treated as the prisoner's statement, as an addition had been made 
 to the evidence ; and the prisoner being then asked if he wished to 
 make any statement declined to do so. Held, that the prisoner's 
 statement was admissible in evidence against him at his trial, {a) 
 
 As by the statute the magistrate is expressly enjoined to put the 
 examination into writing, it will be intended that he did as the law 
 requires ; and parol evidence of a prisoner's statement bef jre hinr 
 ought not to be received until it is cleai'ly .shown that in fact such 
 a statement never was reduced into writing, {h) And in order to 
 render parol evidence of a prisoner's statement admissible, it is not 
 sufficient for a witne.ss to state that he did not .see anything taken 
 down in Avriting, (c) or that no examination was taken in writing, (cZ) 
 
 505 
 
 Parol evidenca 
 lit" exuiiiina- 
 lioii liefore 
 riiagistiMte, is 
 ailniissUile 
 after clear 
 jiroof that the 
 exaiiiinatiuii 
 was not tiikeii 
 in writiii''. 
 
 there was no neeessit}' for sliewing that 
 there had been any caution to the pri- 
 soner in that respect ; and we are of 
 opinion that it never can l)e considered 
 that the givinf; the second caution is a 
 necessary condition precedent to the ad- 
 missibility of tlie statement of the pri- 
 soner, wlien it has been read over to him 
 in the manner prescribed by the former 
 part of the section, and has been signed 
 by him as this has been. The words of 
 the first proviso seem merely directory on 
 the magistrate. There is no clause in the 
 statute excluding the confession if the 
 magistrate omits the second caution, 
 when the deposition has been signed by 
 the prisoner, and is otherwise admissible 
 at common law. This deposition follows 
 the form given in the schedule, which, 
 it may be observed, contains the first 
 laution, but not the second. 'Whether 
 the giving that first caution is a condition 
 precedent to admissibility, it is not 
 necessary now to decide. With regard 
 to the general {[uestion as to the admis- 
 sibility of examinations of prisoners 
 under the Act, the court aic of opinion 
 that where there is no evidence of any 
 threat or promise having been held out 
 to induce a confession, the examination 
 of a prisoner may be read in evidence on 
 liis trial without fuither proof, if the de- 
 position has been returned, anil ai)pcars 
 to be signed by the magistrate, and shews 
 upon its face that the lirst caution has 
 been given. Sec \\. r. Sansome, 3 C & K. 
 332, 4 Cox, 203, 19 L. J. M. C. 143. 
 See R. r. Higson, 2 C. & K. 1C9. K. r. 
 Kimber, 3 Cox, C. C. 223. K. r. Harris, 
 4 Cox, C. C. 147. R. r. Hunt, 4 Cox, 
 
 c. c. i4y. 
 
 {a) K. c. Houd, ly L. J. M. C. 133. 
 
 (b) Jacobs' case, 1 Leach, 309. Fear- 
 shire's case, ibid. 202. Hiuxman's case, 
 ibid. 310, note (ft). Fisher's case, ibid. 
 311, note {a). Rex r. Hollingshead, 4 
 C. & P. 242. Philips V. Wimlnun, 4 
 C. & P. 273. Reg. r. M'Covern, 5 Cox, 
 C. C. ,500'. "Where the law authorizes 
 any person to make an inipiiry of a judi- 
 cial nature, and to register the proceed- 
 ings, the written instrument so con- 
 structed is the only legitimate medium to 
 prove the result, 3 Stark. Ev. 78ti. Hence 
 parol evidciu'e cannot be received of the 
 statement of a prisoner taken under the 
 statute, where the examination has been 
 taken in writing. 
 
 {c) Phillips V. AVimburn, 4 C. & P. 
 273, Tindal, C. J. 
 
 ((/) Rex ('. Isaac Packer, Gloucester 
 Spr. Ass. 1329, MSS. C. S. G. In this 
 case the witness stated that no examina- 
 tion was taken in writing, and I'arkc, .1., 
 said, ' As all tilings are to be presumed 
 to be rightly done, I nuist liave the 
 magistrate's clerk called to ])rovt' that no 
 examination of the prisoner was taken in 
 writing, ami unless you can clearly show 
 that the magistrate's clerk did not do hi.4 
 duty, I \\ill nut receive the evidence.' .^o 
 in Rex v. Phillips, Worcester Sum. As.s. 
 1831, MSS. C. S. G., wliere a witness 
 .stated that he believed tliat what tlio 
 prisoner said before the magistrate wns 
 not taken down in writing, but ho was 
 not quiti- certain that that was so ; Bo- 
 samiuet, J., s;iid that the justice's clerk 
 ought to be calletl to show whether any- 
 thing liatl been taken in writing, a.s it 
 must be presumed that he had done his 
 duty ; and the clerk was accordingly
 
 50G 
 
 ^ V I''i''i<Jfu<'<'. 
 
 [book vr. 
 
 Irrcguliir ex- 
 auiiiuitiun 
 luuy be used 
 to lefresU the 
 memory. 
 
 Impeivching 
 statements 
 returned by 
 the magis- 
 trate. 
 
 l)iit tlio iiiJi^Mstnitc's clt'ik iMiist 1)C' <;;ill('(l to prove tliat lif <li<l not 
 take down in writing' wliat tlif prisom-r s;ii<l. (<) l>ut if in l";ict the 
 cxfuninaf ion was not taken in writing;, ])urol evitlonce may l>e given 
 of the ])ris()iioi's declarations, liefore tli(; 1 J & 12 V^ict. c. 42, Hall 
 and tun 111 licrs were tried for Uiirnl.iiv. Tin; evidence was clear 
 against the two otiiers ; hnt, excepting one or two .slight cireuni- 
 stan(;e.s, certaiidy not .suOieient ol" timinselves to have ])nt Hall on 
 hi.s defence ; the only evidence against him was his examination 
 before the magistrate, which was not taken in writing, either by 
 the magistrate., or ])y any other person, but was proved by the 
 viva voce testimony of two witnesses who were present, and which 
 amounted to a full confession of his guilt. On a case reserved on 
 the question whether this evidence of the confession was well 
 received, all the judges, except (lould, J., were of opinion that 
 the conviction was right. (/') So a written examination before a 
 magistrate will not exclude evidence of a previous parol declara- 
 tion, which has not been reduced into writing, (fj) 
 
 If an examination before a justice of the peace be taken in 
 Avriting, under such circumstances of irregularity as preclude the 
 writing from being itself given in evidence, yet the examination 
 may be proved, as at common law, by some one who was present 
 and lieard it, and if he were the person who wrote down the 
 examination, he may refresh his memory with it. (A) 
 
 It seems that the prisoner may impeach the statement returned 
 by the magistrate, and show that it W'as so irregularly taken as 
 not to be admissible. Before the Act the prisoner was always 
 at libert}^, either by cross-examination or otherwise, to show that 
 his statement was not admissible ; and although the present 
 enactment says that the statement may be given in evidence 
 unless it shall be proved that the justice did not sign it, 
 yet it never can be held that this enactment was intended to 
 prevent the prisoner from proving that the statement was induced 
 by promises or threats, or improperly and untruly taken down. 
 The utmost effect that can reasonably be given to the clause is 
 that the statement, when produced, shall be in precisely the 
 same position as if a witness had proved the handwriting of the 
 justice to it. 
 
 The circumstance of some part of the prisoner's statement 
 being omitted by the mngi.strate, would not, it seems, render the 
 examination inadmissible if it had been read over to the prisoner, 
 and he has assented to its correctness. (/) 
 
 called, and jjrovcd that iiothiii>i was 
 taken in writiiii:;, and then parol evidence 
 was received of what the prisoner said 
 before the magistrate. 
 
 (i) It should seem on the same ground 
 that, where tliere is no magistrate's clerk 
 present, the magistrate should be calhtl 
 to prove that he did not take the exami- 
 nation in writing. See Kex v. Harris, 
 E. & M. C. C. E. 338, j>osf, 508, where 
 this course was adopted. C. S. G. 
 
 (/) Hall's case, cited by Grose, J., in 
 Lambe's case, 2 Leach, 559. Rex v. 
 Huet. 2 Leach, 821. Kex r. Shillcock 
 and Barnes, Staflbrd Spr. Ass. 1832, 
 
 MSS. C. S. G. 
 
 (<j) Kex V. M'Carty, 2 Stark. Ev. 38. 
 See also Kex v. Reason and Tranter, 16 
 How. St. Tr. 35, bv E^tc, J. R. v. 
 Tarrant, 6 G. & P. 182. 
 
 (/() Dewhurst'scase, 1 Lew. 47. Hirst's 
 ca.sc, 1 Lew. 47. Rex v. Reed, M. & M. 
 4u3. Layer's case, 16 How. St. Tr. 215. 
 Lambe's case, 2 Leach, 257. R. v. Teli- 
 cote, 2 Stark. N. P. C. 483. Foster's 
 case, 1 Lewin, 46. R. v. Jones, 7 C. & 
 V. 239. Thomas's case, 2 Leach, 637. 
 R. r. Pressly, 6 C. k P. 183. 
 
 (i) Joy, 93, citing ililward r. Forbes, 
 4 Esp. 170, where an examination of the
 
 CHAP. IV. § II. 1 Statements before Magistrates. 507 
 
 The prisoner is not to be precluded from showing, if he can, that 
 omissions have been made to his prejudice ; for the examination 
 has been used against him as an admission, and admissions must 
 be taken as they were made, the whole together, not in pieces, nor 
 with partial admissions. Even the prisoner's signature ought 
 not to estop him from proviug, if he can, such omissions ; 
 if the truth is, that omissions were made to his prejudice, the 
 fact should be proved, and the prejudice .suffered no longer to 
 exist, (j) 
 
 Parol evidence is admissible to add to the written examination P^i'ol evidence 
 of a prisoner's statements made by him while before a magistrate, '"=^y '<^ giy^'i 
 
 , i , . , . 1 . -^ , . . -TT . ' to ailJ to the 
 
 and whicli are not contauied m such examination. Upon an in- written ex- 
 dictment against Butler, Harris, and Evans, for stealing a ewe, amiuation of a 
 the property of Bennett, it appeared that Harris, Butler, and Ey'^^"^^^^^.^^'' 
 Evans were taken before a magistrate about stealing three sheep of ti-ate. 
 Bennett, Pennell, and Price ; at the meeting Bennett, Pennell, and 
 Price were all present. The magistrate identified the examinations, 
 and said that was all that was taken down ; that was what each of 
 the prisoners said ; it was all in his writing, he had no clerk ; the 
 informations were taken as to the three sheep before Evans and 
 Harris were examined ; he took down everything that they said 
 that he heard. The papers produced contained eveiything as he 
 believed that transpired before him, and he intended to 
 take down all that was said to him, and he believed he did. 
 The room was very full. The papers produced were the 
 depositions of Pennell, Price, and Bennett, as to the stealing 
 of their sheep respectively, and Butler's examination and con- 
 fession as to each offence. The following were the examinations 
 of Harris and Evans : — ' J. Harris being called upon for his defence, 
 voluntarily' saith that he Avas concerned in stealing a sheep, the 
 property of J. Pennell, but that J. Butk-r was the foreleader in the 
 business.' ' W. Evans voluntarily saith that he did not kill the 
 sheep, but that he helped to carry it away.' A witness stated 
 that Mr. C, the magistrate, examined Harris and Evan.s, and he 
 wrote ; that when Harris was asked about Bennett's sheep, Mr. C. 
 Avas at the tal)le with his paper and pen before him, but his hand 
 was not going. What Harris said about Bennett's slieep was said 
 to Mr. C. Mr. C. heard what Harris and also wliat Evans said 
 about Bennett. He took down in writing what the}' said about 
 Bennett's sheep ; (/.) what they said they saitl to Mr. C. Harris 
 said he was connected with the taking of Bennett's sheep. Harris 
 said they took a neddy out of the road, and put the sheep upon 
 him. Evans said he helped to take the sheep — Bennett's sheep ; 
 this was addressed to Mr. C. Another Avitness said that he heard 
 Harris say that he helped to take Bennett's sheep ; that he ad- 
 dressed Mr. C. ; that Harris said to Evans, ' SjDeak tlif truth, you 
 
 defendant before coniraissioneis of bank- read over to him before lie signed it, it 
 rupt was admitted in evidence by Lord must lie taken to be a statement of facts 
 Ellenborougli, C. J., altliough it was admitted by Iiini. 
 proved that tlie defendant liad said more (/) 'J riiill. Kv. 8.'5. 
 than was taken down, tlie commissioners {k) Qiuere, whether this should not bo 
 having taken down only what they con- ' Pennell's sheep / ' My MS.S. note lias 
 sidered relevant, upon the ground that no such statement of this witness, and 
 the party, having signed it after he heard ' Bennett ' might easily bo piiuted dro- 
 it so stated from hit> own words, and neously instead of ' Fenuell. C. S, G.
 
 508 
 
 (^1 /''ridciicc. 
 
 [book 
 
 VI. 
 
 Whoio tlio 
 i'\:tiiiiiiation of 
 a iirisiiner 
 n'tVi-s to tlio 
 ik'liosition of 
 a witness. 
 
 Tlio cxamina- 
 ticin of a jiri- 
 soner is tLat 
 alone wliicli 
 is taken after 
 all tlio wit- 
 nesses liave 
 lieon ex- 
 amined. A 
 volunt;iry 
 statement at 
 any other time 
 is admissiMe, 
 ami may be 
 proved liy any 
 one who 
 heard it. 
 
 in.'iy n.s well s|i(;ik tlic tiiitli ;is iiol;' tli;il Kvaii.s llion kh'kI Im- 
 li('l|)('(l to <li> it ; III' liil))i''l to tak(; licnnott'.s .sliocp : wli.'it Kvaii.s 
 said wa.s addn'sscd to Mr. ( '. 'J'lic cvidi'iicc oi ihcHC two witDOSSO.s 
 was objected to, lait received ; ami, upon a case reserved upon the 
 (piestions whether, a.s Harris and Evans liad made a confession as 
 to Penncll's sheep, wliich had been taken down in writing by the 
 magistrate, any confession as to Bennett's sheep could be supplied 
 by ])aroI evidence ; and whether, as the magistrate had taken dossn 
 in writing everything h(} heard, and Ik; intended to take down all 
 that was said to him, and he l)clieved lui did, parol evidence could 
 be given of anything else that was addressed to the magistrate ; the 
 judges were unanimously of opinion that the evidence being pre- 
 cise and distinct was properly received. (/) 
 
 On the part of the pro.secution, the examination of a defendant, 
 taken before a magistrate, "was put in, and in it the defi,'ndant 
 stated that the de])osition of a witness, which had been taken at 
 the same time, and before the same magistrate, was correct. Patte- 
 son, J., held that the deposition of the witness might ])e put in and 
 read as a part of the defendant's statement, although the witness 
 had been examined on the trial as a witness for the prosecution, 
 and although possibly his deposition might have the effect of con- 
 tradicting his evidence on the trial. ()/() But unless the examina- 
 tion of a prisoner specifically refers to the deposition of a particular 
 witness, putting in the examination of the prisoner on the part of 
 the prosecution will not entitle the prisoner to liave any of the de- 
 positions read, although they w^ere all taken before the prisoner 
 made his statement. (/?) 
 
 Section 18 of the 11 i'i: 12 Vict. c. 42, is only intendeil to apply 
 to the concluding examination of a prisoner before the committing 
 magistrate after all the Avitnesses have been examined, and does 
 not apply to a voluntar}^ statement made by a prisoner in the 
 course of the examination, and before the conclusion of the case 
 for the prosecution. Such a statement is adniissil)le, and it is im- 
 material wliethcr it is made before, during, or after a remand, (o) 
 I'lierefore where a policeman took a ])risoner before a magistrate, 
 and applied to have her remanded, and produced a cash-box and 
 iron chisel, stating his belief that it was with that instrument 
 that the prisoner had opened the box ; upon which the prisoner 
 spontaneously, and without any question having been put to her, 
 said that she had not opened the box by means of the chisel, but 
 by a hammer ; and no examination was taken before that magis- 
 trate, who merely granted a remand ; it was held that the state- 
 ment of the prisoner was admissible against her, although she had 
 not been cautioned before she made it, and might be proved by 
 
 (/) Kex r. Harris, II. k il. C. V. 1!. 
 .'jas. Lord Lyndhurst. C. B., Bosamiuet, 
 J., Taunton, .1., and Gurnev, B., absin- 
 tibu.'i. Kowlaiul >: Ashby, "l!. & M. N. 
 P. U. 231. See rhillip-s, vol. 2, ]>. 8.3. 
 Venafra r. .Tohnson, 1 XL & Rob. 31<>. 
 Jeans r. Wheadon, 2 M. & l>oh. 4St). 
 But see IL V. Walter, 7 C. & P. 267. 1.'. 
 r. Moi.se, 8 C. k \\ t^05. B. c. Lewis, 
 C. .*c r. 16L 
 
 On) Rex r. John, 7 f. k B. 32L Tlie 
 report does not state at wliose in.stanee 
 the deposition was ]mt in. 
 
 (,i) Rex r. Pearson, 7 0. & P. 671. 
 Law, Recorder, alter consulting Pattesou 
 and Williams, J& 
 
 (o) Per Jersns. C. J., Reg. r. Stripp, 
 infra. R. r. Bell, 5 C. & P. 162. 
 Lambe's case, 2 Leach, 552.
 
 CHAP. IV. § II.] Statements before Mayldrates. 509 
 
 tlic policoiDaiL (p) Such a statement may be proved by any one 
 who heard it. (r/) 
 
 Where one of two prisoners was committed before the other was 
 apprehended, and the depositions against the one prisoner were 
 read over before the magistrate to the other prisoner, and after 
 they were read that prisoner went across the room to a witness, 
 who was called, and said something to him so loud that it might 
 have been heard by the magistrate if he had been attending, and 
 the magistrate proved the examination of the prisoners before him- 
 self, and the statement to the witness was not contained in it ; 
 Parke, J., held that what the prisoner had said to the witness 
 might be given in evidence, (r) So 'an incidental observation 
 made by a prisoner in the course of his examination before a 
 magistrate, but which does not form a part of the judicial intpiiry 
 so as to make it the duty of the magistrate to take it down in 
 Avriting, and which was not so taken down, may be given in evi- 
 dence against him at the trial.' (s) So where a woman was before 
 the magistrates on a charge of burglary, and in the course of the 
 examination of a witness a glove was produced, which had been 
 found on the man Avith part of the stolen property in it, on which 
 the man said, 'She ^,-Awe me the olove, but she knew nothino- of 
 the robbery : ' the depositions having been put in, and the clerk to 
 the magistrates having proved them, and there being no such 
 statement in the depositions or examination of the prisoner, 
 Erskine, -T., held that what the man said might bo proved by parol 
 evidence, {t) 
 
 On the examination of a prisoner on a charge of murder, one rarol uviileme 
 of the witnesses stated that she had bought a pot of the prisoner, of a i.risoner's 
 upon which one of the magistrates asked what sort of a pot it was, 
 and the })risoner, although the question was not particularly 
 addressed to him, made an a>)swer. It was submitted that no evi- 
 dence could be given of what passed before the magistrate exce|)t 
 the depositions. Coleridge, J., ' What the magistrate himself said 
 would not be taken down. That may certainly be a.sked.' It was 
 then submitted that the statement made by the prist)ncr and signed 
 by the magistrate must be put in before it could be asked what 
 the prisoner sai;l. Coleridge, J., ' There seems to be no necessity 
 for putting in the Avritten examination. It is not what the prisoner 
 says when called upon for his defence that is asked, but an 
 observation made in the course of the case, and as that woulil not 
 be put down as part t)f liis statement, I am clearly of opinion that 
 it is receivable.' The clerk to the magistrate then proved that he 
 took down the examination of tin- witnesses, and that he took down 
 what the prisoners said when they were asked what thoy hail to 
 say for themselves, but that he ilid take down anything which either 
 
 answer to a 
 iiiagistrate'.s 
 qucstii'ii while 
 the witnesses 
 were being 
 examined. 
 
 (/>) TiPj,'. V. .'^tripp, 2;'^ L. .1. M. C 
 109. Dears. C ('. (iiS. 1{. r. Watson, 
 3 C. k K. 111. ]'>iit see Canow, 15., in 
 ]{. r. Kagg, 4 ('. & 1'. f.CG. l!cg. r. Wil- 
 kinson, 8 < '. k \\ 6H'2. 
 
 (7) 1!. V. Watson, :5 C & K. 111. K. 
 V. I'.oll, 5 C. & r. Iti'i. 
 
 (;•) Kcx V. .Johnson ami S|)i('is, (ilmi- 
 ccster Spr. Ass. IS-J!", MS^S. C. S. C. 
 This rase was relied upon at tlie Iri.il of 
 
 lie.v V. Harris, snjun, hy tlie 
 the Crown. MS,S. C. .S. (}. 
 
 (,s) I\ex I'. Moore, Matth. 
 lf)7, I'arke, H. 
 
 (/) l{cg. V. Hooper, fJlovn 
 Ass. 18i2. The rhrk to the 
 conhl not remeinlx'r the olis( 
 it was proved 1>\' two ]>(dii'el 
 • '. S. C. 
 
 i-ounMl for 
 I,. 
 
 Dig. 
 
 ester 
 magi 
 rvatii 
 uen. 
 
 Sum, 
 st rates 
 m, and 
 
 MS.'^.
 
 510 
 
 < [f /•^n'l/ciicf. 
 
 ("book \\ 
 
 A confession 
 of one otreiu'c 
 during <tn ex- 
 amination iif 
 a charge of 
 another 
 offence. 
 
 The prisoner's 
 statement may 
 be put in in 
 reply to evi- 
 <lence given 
 for liini. 
 
 nl tlic |iiis()iiGr.s sai<l before tln' witnesses liad been all examined. 
 ('()lcritl;jfc, J., 'At the close of tlie evidence for the pro.secutioii the 
 piisoiier is asked if he wishes to say aiiythiiiff, and if lie does, it is 
 taken down, and thr evidence of that statement is the written 
 cxaiuinatinn ; hut if a piisoner says something' while the witnesses 
 arc under examination that does not stand on the same ;^roun<l, I 
 shall receive the evidence.' (n) 
 
 Statements made by a pri.soncr while cros.s-examining a witness 
 before the magistrates and reduced to writing as part of the deposi- 
 tions, must be proved by the depositions and not by the witness 
 so cross-examined. (.') 
 
 The prisoner was indicted for receiving goods knowing them to 
 have been stolen. There was a second indictment against him for 
 breaking into and stealing from a church. When examined 
 before the magistrate on this second charge, he made a confession 
 as to the first charge. This was taken down in the usual manner, 
 read over to the prisoner, and signed by the magistrate ; but the 
 prisoner refused to sign it. It was objected that the 7 Geo. 4-, 
 c. 64, only made these confessions evidence, on the authority of 
 the magistrate's signature, when the confession was made on an 
 examination having reference to the charge in support of which 
 the confession was sought to be given in evidence. Erie, J., held 
 that it mattered not for what pur]io3e tl)e confession was made ; if 
 it were made before a magistrate, taken down in the regular 
 manner, and received the magistrate's signature, it thereby became 
 valid evidence against the prisoner upon the trial of any other 
 charge than that upon the examination in reference to which such 
 confession had been made. (?/) 
 
 Where the prisoner calls witnesses wdiose evidence is incon- 
 sistent with his statement before the magistrate, the statement 
 may be put in evidence in reply. On an indictment for robbery 
 the prisoner's coat was proved to liave been bloody, and a Avitness 
 for the prisoner stated that on the day before the robbery he had 
 observed that thcr pri-soner's coat was bloody, and the prisoner gave 
 an account of how it became so ; and it was held that the prisoner's 
 statement before the magistrate, in which he accounted for the 
 blood on his coat in a different manner, was admissible in reply to 
 the evidence given by the prisoner, (z) 
 
 The prisoner's statement is evidence against him, but not for 
 liim ; and therefore it cannot be put in evidence on his behalf, (sz) 
 
 Depositions 
 I'efore magis 
 trates. 
 
 Sec. III. 
 
 Depositions, (a) 
 
 As examinations and depositions before magistrates originate 
 from the same Acts of Parliament, and are in some respects guided 
 
 («) l!ex V. Spilslnuy, 7 C. & V. 1S7. 
 Two cases bearing the otlicr way arc re- 
 povteil, but tlicv cannot be supported. 
 See Ke-. r. ^Yeller, 2 V. k K. 2-23. 
 Ki-c;. r. Carpenter, 2 Cox, C. C. 228. 
 
 (.r) W. V. Taylor, 13 I'ox, C. C. 77. 
 
 Oj) He-;. I-. ron\eroy, 1 Cox, C. C. 231. 
 The coustable proved the f.'cts in this 
 
 (:) I?eg. V. "Whitp, 2 Cox, C. C. 192. 
 rollock, C. B., after consulting Coleridge, 
 J. 
 
 (zz) Reg. r. Haines, 1 F. & F. 86, 
 Crowder, J. 
 
 {a) As to a prisoner being entitled to 
 inspect depositions, see ante, p. 428.
 
 CHAP. IV. § III.] 
 
 Depositions. 
 
 by the same decisions, it may be proper to consider the latter im- 
 mediately after the former. 
 
 ((() Present enactments as to depositions upon -which pri- 
 soner committed for trial, }>. 511. 
 
 (h) Deposition must bo duly taken, p. 513. 
 
 (c) Form of dei^osition — Signing same, p. 518. 
 
 {(l) Depositions admissible when witness so ill as not to be able 
 to travel, p. 521. 
 
 (e) Other cases in which depositions admissible, p. 523. 
 
 (/■) When depositions admissible on trial of a ditferent 
 offence, p. 52G. 
 
 {(j) Proof of depositions on trial, p. 530. 
 
 (/i) Depositions before coroner, p. 533. 
 
 {i) Where witness examined before trial, p. 534-. 
 
 {j) Offences committed abroad — Merchant Shipping Act, p. 
 536. 
 
 511 
 
 (rt) Present EnactmenU as to Depositions vpon vjliAck Prisoner 
 comm i tied fo r Tr ia I. 
 
 By 11 & 12 Vict. c. 42, {b) sec. 17, 'in all cases where any per- Examiuation 
 son shall appear or be brought before any justice or justices of the '^^ witnesses, 
 peace charged with an indictable offence, whether committed in 
 England or Wales, or upon the high seas, or on land beyond the 
 sea, or whether such person appear voluntarily upon summons or 
 have been apprehended, with or without a warrant, or be in custody 
 for the same or any other offence, such justice or justices, before 
 he or they shall commit such accused person to prison for trial, or 
 before he or they shall admit him to bail, shall, in the presence of 
 such accused person, who shall be at lil)erty to put ([uestions to 
 any witness produced against him, take the statement (M.) on 
 oath or afiiruiation of those who shall know the facts and cir- 
 cumstances of the case, and shall put the same into writing, and 
 such depositions shall be read over to and signed respectively 
 by the witnesses who shall have been so examined, and shall be 
 signed also by the justice or justices taking the same ; (c) and the 
 justice or justices before Avhoni any such witness shall appear to .Tu>tk-e to a.l- 
 be examined as aforesaid shall, before such witness is examined, ">i"i>_ter oath 
 administer to such witness the usual oath or affirmation, which "' '' """' '""' 
 such justice or justices shall have fidl power and authority to do ; 
 and if upon the trial of the jierson so accused as first aforesaid it Depositions of 
 shall be proved, (d) by the oath or affirmation of any credil)le wit- i*'"^"'"; ^l"" 
 ness, that any person whose deposition shall have been taken as v!'iio*^,j're .lii- ' 
 aforesaid is dead, or so ill as not to be able to travel, (f) and if also sent, may, in 
 
 (h) ]5y tlir 1 & -2 r. &M. r. v.], aii'l 'l 
 k 3 P. & M. c. 10, justices of tlie peace 
 were eiialiled ami directed to take the 
 depositions of witnesses in cases of 
 felony ; by tiie 7 (tco. 4, c. 64, these 
 statutes were repealed and re-enacted 
 with an extension to misdemeanors, and 
 we have seen that the 7 Ueo. 4, c. ()4, is 
 repealed so far as relates to the takinix 
 of the examinations and informations 
 against persons char;,'ed with felonies 
 
 and misdemeanors, liy the 11 & TJ \'i(t. 
 c. 42, s. 34. The II fc 12 Vict. c. 42, s. 17, 
 has extended the admissibility of (U-po-i- 
 tions, taken befoiv a justice, so as to 
 include those taken on ii charge of high 
 treason. 
 
 (,•) See post, p. 520. 
 
 ('/) Duke of Heaufort r. Crawshay, ']o 
 ].. .1. C. 1'. 342 ; a.s to proof by alUdavit, 
 see i)er Willes, .1., S. C 
 
 (c) Formerly if there were a i>ermanent
 
 512 
 
 ri;rtjiin raurs, 
 1 10 ri'iiil ii) 
 cvidcMco. 
 
 ( f/ A ri(frii<'<' 
 
 [book VI. 
 
 it 1)0 provrd that sncli deposition was taken in tlic presenco ot tlic 
 jtci'soii so accused, and that he or his counsel or attorney had 
 a lull npportunity of cross-examining the witness, then, if such 
 deposit ion purport to he sij^ncd by the justice liy or before whom 
 the same j)urp)rt-! to have b(>en taktai, (/) it sliall be lawfid to 
 read such deposition as evidence in such ])rosecution, fry) witlnMit 
 further proof theicof, unless it shall be pnn-ed that such depnsi- 
 tinii was mdI in fact signed by the justice purportin*^ to sii^n the 
 same' (//) 
 
 '(M.) 
 Pu Wit. 
 
 DrpnsifloDS of Witne-^sra. 
 
 J 
 
 he Kxamiuation ^A'('.l). of [Frn'/zur] and 
 
 E.F. of 1 Liiljonrer], taken on [Onth] this 
 
 Day of in the Year of our J-.ord 
 
 at in 1 1 1 f .' [Coo n fi/] aforcsai 1 1 , be to re 
 
 the undersigned, [One] of Her Majesty's Justices of 
 
 the Peace for the said [Couniij], in the Presence and 
 
 Heaving of A.B., who is charged this Day before 
 
 [me], for that he the said A.B. on at 
 
 [i(r., descr'iblnr/ the Ott'evce as in a Warrant of Com- 
 
 'niifmenf]. 
 
 'This Deponent CD. on his [Oath] saith as follows [<Cr., 
 
 t<fat'ni(/ the Deposition of the Witness as nearly as possible in the 
 
 vjonls he uses. When his Deposition is complete let him sign it]. 
 
 'x\.nd this Deponent E.F., upon his Oath, saith as follows [cCr.] 
 
 'The above Depositions of CD. and E.F. were taken and 
 
 [s«-or/*] before me at ou the Day and Year 
 
 hrst above mentioned. t/.N.' 
 
 By sec. 28, 'the several forms in the schedule to this Act con- 
 tained, or forms to the same or the like effect, shall be deemed 
 good, valid, and sufficient in law.' (i) 
 
 iiialiility to attend, as if tlip witness were 
 ,-0 ill that there was no |iroliahility that he 
 would ever he ahle to attend, his dei)Osi- 
 tioii was adniissihle. K. v. Edmunds, 6 
 C. & r. Kit. Hex V. Hogs, 6 C. & P. 
 176. Keg. V. "Wilshaw, C. cfc M. Ii5, 
 Coltman, .T. 
 
 (/) ^^'here a charge of wounding with 
 intent to murder was made before a ma- 
 gistrate at Bow Stieet, hut in conse- 
 quence of the illness of a witness, the 
 ]irisiincr was taken to Twickenham, anil 
 the deposition of the witness taken in 
 the presence of tlie prisoner hy two county 
 magistrates, and signed by them, and 
 after a further invcstig-.ition at I'ow 
 Street tlie ]trisoncr was committed ; it 
 was held that the dejiositicn was admis- 
 sible ; for the n & IL' Viet. c. 42, ss. 17, 
 18, docs not continc the admissibility of 
 a depositioH to the case of a person exa- 
 ndned before the magistrate belbre whom 
 the charge was made, and who committed 
 the ]m.-ioner. Keg. r. De Vidil, 9 (_'ox, 
 ('. V. 4. Rlackburn, J. 
 
 {<j) Where a witness is too ill to tifivel, 
 his dep>i>itiiii )ii:iv bo rmd bv the grand 
 
 jury upon proof that it was duly taken in 
 the presence of the pirisoner, who had an 
 opportunity of cross-examining the wit- 
 ness, and that the witness is too ill atth.e 
 time to attend. Keg. r. Clements, 2 
 Den. C. C. -251. K, v. "Wilson, Ti Cox, 
 C. C. 622. In this case evidence was 
 given before the judge that the witness 
 was too ill to attend to be examined, &c., 
 and the judge directed the deposition to be 
 sent in to the grand jurv. Sec K. r. 
 Rullard, 12 Cox, C. ('. S^i, where liylcs 
 J., is reported to have -said that thcginnd 
 jury are not bound by any rules of evi- 
 dence. See K. V. Gerrans, 13 Cox, C. C. 
 158. 
 
 (h) The Irish Act, 12 & 13 Vict. c. 60, 
 s. 17, wa.s exactly similar to this section 
 excepting that it omitted the words ' or so 
 ill as not to be able to travel.' The 12 
 & 13 Vict. c. 69, was repealed by the 
 14 & 15 Vict. c. 93 : see sec. 14 of that 
 Act, which is similar to the repeah d 
 clause, and omits the same wonis as it 
 did. 
 
 (O See sec. 20, fi)if(\ ]i. 501, as to the 
 mode of returning the de])ositions.
 
 CHAP. IV. § III.] 
 
 Depositions. 
 
 511] 
 
 By 30 & 81 Vict. c. 35, s. .3. And whereas complaint is fre- Examination of 
 quently made by persons charged with indictable offences, upon '"'"^^•'**%^ °". 
 their trial, that they are unable by reason of poverty to call wit- ^l^l^^ ° ^'''' 
 nesses on their behalf, and that injustice is thereby occasioned to 
 them, and it is expedient to remove, as far as practicable, all just 
 grounds for such complaint : ' Therefore, in all cases where any 
 person shall ajjpear or be brought before any justice or justices of 
 the peace, charged with any indictable offence, whether committed 
 within this realm or upon the high seas, or upon land beyond the 
 sea, and Avhether such person appear voluntarily upon summons, 
 or has been apprehended with or without warrant, or be in custody 
 for the same or any other offence, such justice or justices, before 
 he or they shall commit such accused person for trial or admit 
 him to bail, shall immediately after obeying the directions of the 
 11 & 12 Vict. c. 42, s. 18 (ante) demand and require of the accu.sed 
 person whether he desires to call any witness ; and if tlie accused 
 jjerson shall, in answer to such demand, call or desire to call any 
 witness or witnesses, such justice or justices shall, in the presence 
 of such accused person, take the statement on oath or affirmation, 
 both examination and cross-examination of those who shall be so 
 called as witnesses by such accused person, and who shall know 
 anything relating to the facts and circumstances of the case, or 
 anything tending to prove the innocence of such accused person, 
 and shall put the same into writing, and such depositions of such 
 witnesses shall be read over to and signed respectively by the 
 witnesses who shall have been so examined, and shall be signed also 
 l)y the justice or justices taking the same, and transmitted in due 
 course of law with the depositions, and such Avitnesses, not being 
 witnesses merely to the character of the accused, as shall in the 
 opinion of the justice or justices give evidence in any way material 
 to the case, or tending to prove the innocence of the accused person, 
 .shall be bound by recognizance to appear and give evidence at the 
 said trial, and afterwards upon the trial of such accused person, all 
 the laws now in force relating to the depositions of witnes.ses for 
 the prosecution shall extend and be applicable to the depositions 
 of witnesses hereby directed to be taken. 
 
 By s. 4, all the provisions of the said Act 11 & 12 Vict. c. 42, 
 relating to the summoning and enforcing the attendance and com- 
 mittal of witnesses, and binding them by I'ecognizance and com- 
 mittal in default, and for giving the accused person copies of the 
 examination.s, and giving jurisdiction to cei'tain persons to act 
 alone, shall be read and shall have operation as part of this Act. 
 
 See 30 & 31 Vict. c. 35, ss. G & 7, noticed, j^ost, p. 534, which Kx-imining 
 give power to mairi.strates to examine witnesses dangerously ill. « itnc.s.scs i an- 
 
 o 1 o o ^ gcTously III. 
 
 (h) De2Wtilfio)is must he dahj taken. 
 
 It is a general piin('i[)le of evidence that, lo render a ileposition Deposition? 
 of any kind admissil)le against a party, it must appear to have "'"'*'' '"■' ''"'^' 
 been taken on oath in a judicial proceeding, and that the party 
 should have had an opportunity to cross-examiue the witne.ss. (^•) 
 
 {{■) ]]y Hullock, B., in Attorncy.O( 
 ncnil V. Davi.wn, 1 M'Clel. & Y. Kit 
 
 VOL. HI. 
 
 lU'X I'. Smith, 2 Stark. X. P. C. 211. 
 uotc (d). "Woodcock's caso, 1 Loacli, 
 
 L L
 
 Of Evidence. 
 
 [book \ 1. 
 
 ScinU(, tlial 
 since tiio 
 11 & 12 Vict, 
 c. 4 2, 8. 17, a 
 deposition is 
 not admissible 
 unless it l>c 
 taken down 
 from the 
 statement of 
 the witness 
 in tlie presence 
 of the prisoner 
 and the magis- 
 trate. 
 
 'I'lio II iV: 12 Vict. c. 42, s. 17, ante, \). 511, leqiiiies the (»;itli to 
 111! ;iiliiiiiii.stcrccl to ;i witness ' before siirJi vltncHu la cxaiiiincil,' 
 Mini (lie statement of the witness to be taken in the presence of 
 the accused, wlio shall be at liberty to i)ut (juestious to any witness 
 proiluced against liira ; and it cannot be doubted that the only 
 regular course of proceeding is for the justice to swear the witness 
 in tlie presence of the accused, and then to examine him in the 
 presence of the accused, and then to permit the accused to ]»ut 
 any questions he may think fit. 
 
 Where mere minutes of what each witness said before the 
 magistrate were taken down, and the minutes were afterwards 
 written out. in the shape of depositions by a clerk in the presence 
 of the witnesses, but in the aljsence of the prisoners and magis- 
 trate, and afterwards read over in the presence of the prisoners 
 and magistrate, it was objected that the depositions were not 
 taken according to this section ; and Wilde, C. J., observed, ' So 
 that the prisoner had a right to compare the verbal statements 
 made with the written statements produced, which he could not 
 do unless all the written statements produced had been made 
 verbally in his presence.' And Maule, J., said, ' That section 
 makes the depositions receivable in evidence upon its being first 
 proved that they were taken in the presence of the person 
 accused, and that he or his counsel or attorney had a full oppor- 
 tunity of cross-examining the witness. Therefore you would say 
 that such full opportunity did not exist in the present case. 
 Suppose a question to be put to the witness in the absence of 
 the prisoner, which question involved two alternatives, and the 
 answer to be " Yes ;" the magistrate's clerk might think the 
 answer applied to a different alternative from that to which the 
 prisoner would have applied it, had he been present, and had 
 an opportunity of fixing it to such alternative by cross-exami- 
 nation ; and the magistrate's clerk might have taken down the 
 answer in such a form as to make it seem applicable to the wrong 
 alternative. You contend that what they call minutes would have 
 been the depositions had they been signed, and that the minutes 
 not being signed, there are no depositions at all.' It, however, 
 was imnecessary to decide the point, as the case was determined 
 in favour of the prisoners on another ground. (I) 
 
 500. Diuglers case, 2 Leach, 561. 
 Rex V. Paiue, 1 Salk. 281. S. C. 5 
 Mod. 163, cited by Lord Kenvon in 
 Rex V. EriswcU, 3 T. R. 722. Eniiig- 
 tou's case, 2 Lew. 142, Patteson, J. Rcx 
 r. Radbourue, 1 Leach, 457. 
 
 (/) Reg. I'. Christopher, 1 Den. C. C. 
 536, 2 V. & K. 994. 11. T. 1850. Before 
 the 11 & 12 Vict. c. 42, where the greater 
 ])art of the deposition of the deceased, 
 in a case of inurdov, had been reduced 
 into writing in the absence of the pri- 
 soner, but the deceased was afterwards 
 resworn in the prisoner's presence, and 
 the deposition read over and stated by 
 the deceased to be correct, and the rest 
 of the deposition taken in the ordinary 
 way, in the prcrJcnce of the prisoner, 
 who Wiis asked whether he chose to put 
 any questions ; it was heki by Richards, 
 
 C. B., that the deposition was admissible 
 and a great majority of the judges, upon 
 a case reserved, were of opinion that the 
 evidence had been properly received. Rex 
 V. Smith, R. k R. 339. S. C. 2 Stark. N. 
 P. C. 208. Holt, X. P. C. 614. R.r. Hake, 
 1 Cox, C. C. 226. Li a previous case, 
 Rex V. Forbes, Holt, X. P. C. 509, where 
 the constable stated, upon producing the 
 deposition, that the prisoner was not pre- 
 sent till a certain part of the deposition, 
 distinguished by a cross, at which period 
 he was introduced and heard the remain- 
 ing part of the examination ; and when 
 it M-as concluded, the whole of the deposi- 
 tion was read over to the prisoner. 
 Chambre, J. , refused to admit that pait 
 of the deposition previous to the mark. 
 In Reg. V. Beeston, Dears. C. C. 405, 
 Alderson, B. , said, in Rex r. Smith, ' I
 
 L'lrAP. IV 
 
 in.] 
 
 Depositions. 
 
 On a trial for murder, j\Ir. Cooke, a magistrate, produced an 
 information, and stated that lie went to the house of the deceased, 
 and found him on a pallet in a very weak state, and that the 
 prisoner was brought to the house, where the deceased was ; 
 in consequence of the state in which the deceased was, he could 
 say but very little at a time, and Mr. Cooke first took his infor- 
 mation without the prisoner being present, and swore the deceased 
 to it. Mr. Cooke then had the prisoner, who was handc-uflfed, 
 brought in, and had the handcuffs taken off. Owing to the 
 exhausted state of the deceased, the prisoner had to be brought 
 close to the bed to hear what he said. Having then slowly read 
 over the information to the deceased in the presence of the pri- 
 soner, and asked the deceased if it was true, and having been 
 answered in the affirmative by him, Mr. Cooke then rcsirore the 
 deceased to his info rmo.tion in the presence of the prisoner, and 
 read over the information of the deceased to him, and while he 
 was reading it the prisoner asked him to stop at some statement 
 contained in it : but Mr. Cooke told him he had better read it 
 over to the end, and that he would then read the information 
 paragraph by paragraph distinctly to him, and that the prisoner 
 could then put any question he wished to the deceased on each 
 paragraph as read ; that, having so read over the information, he 
 read it over again paragraph by paragraph to the prisoner in the 
 hearing of the deceased, and that part of it was read a third time 
 to the prisoner ; that the prisoner, having been previously duly 
 cautioned by him, asked several questions with reference to the 
 matters sworn in tlie information, and Mr. Cooke took down each 
 question and answer as nearly as possible in the very words of 
 the parties. The deposition was received in evidence ; but, upon 
 a case reserved, it was held that it ought not to have been re- 
 ceived, {rii) 
 
 515 
 
 A deposition 
 rejected wliere 
 it was taken 
 originally in 
 the absence of 
 the prisoner, 
 and afterward.-i 
 the deponent 
 wa.s sworn, but 
 not in a satis- 
 factory man- 
 ner, in the 
 presence of the 
 prisoner. 
 
 contended on the authority of Ecx v. 
 Forbes that the deposition was not ad- 
 missible, as the prisoner had not a suf- 
 licient opportunity of eross-exaniination ; 
 that lie had no oitportunity of lioarinj^ the 
 witness give his answers, and seeing his 
 manner of answering ; and that so much 
 of the evidence as had been taken in 
 the prisoner's absence was inadmissible ; 
 and I still think I was right in that objec- 
 tion.' SeeK. V. Calvert, "2 Cox, C. C. 491. 
 In a case before the above act, on an in- 
 dictment for robbery, it appeared tliat the 
 depositions were not written either in 
 the presence of the magistrate or of the 
 prisoner, but the clerk to tlie magistrate 
 examined all the witnesses, and took 
 down what they said, neitlier the magis- 
 trate nor the piisoncr being ])resent ; but 
 that when the magistrate and thejjrisoner 
 arrived, the depositions were read over 
 to the witnesses in tlie presence of the 
 magistrate and the ])risoner, and tlie 
 prisoner was then asked if he had any 
 question to put to any of the witnesses; 
 Piatt, V>., said, ' This is a very irregular 
 and improper mode of taking depositions, 
 and very unfair 1o the party accused. 
 The prisoner ouglit to hear all the ijues- 
 tions jnit and answered, for then he may 
 
 veiy possiblj' explain the circumstances ; 
 but it is monstrous tliat he should have 
 a long bead roll of statements read over 
 to liini, and then be asked on the sudden 
 if he has any question to put, and then 
 probaldy, unable on the instant to ex- 
 tract from his accuser or the witues.ses 
 an explanation of every apparently 
 criminating circumstance, be told that 
 he is committed. Such a mode of pro- 
 ceeding does not alford to the party 
 accused that fair play which the due ad- 
 ministration of tlie law reciuires. ' Keg. 
 r. Johnson, 2 C. & K. 3i>4, Sum. Ash. 
 184(5. It does not ajijK'ar whether any 
 deposition was tendered in evidence. 
 
 {w) Keg. V. "Walsh, 5 (."ox, C. C. 115, 
 M. T. 1850. Tlierc was considerable dif- 
 ference of opinion among the judges in 
 this case. Monahan, C. J., was of opinion 
 that ' what the Act of Parliament requires 
 is, not that a witness shall depose to a 
 written statement, but shall, in tlie pre- 
 sence of the accused, give a statement on 
 oath, which the magistrate shall after- 
 wards reduce into writing, ami that the 
 accused shall have an opportunity of 
 cross-examining him, under the sanction 
 of tlie same oatli, whereby he swears to 
 the information,' that the present case 
 I, I, 2
 
 Tlio clopiiHlliiiii 
 n(i);lit to l»! 
 tiikun in tlic 
 lircHoncc of I ho 
 
 JiriMOIK!!', wlio 
 
 oufjlit to lie 
 juskcil with ri'- 
 fereiico to tho 
 l>artiiMiI:ir wit- 
 iiosH whctiiei" 
 ho li.'Ui liny 
 (|UCstion to 
 niik. 
 
 Of I'Jrit/ciicr. 
 
 [book 
 
 vr. 
 
 Peiiosilion 
 written in tho 
 ;ibsencc of the 
 prisoner, after- 
 warils read in 
 his presence, 
 anil cross- 
 examination 
 ))>' his attorney 
 anil notes of it 
 written out at 
 en»tb. 
 
 Where it ;ij)|)e;ue»l tli:it ii witness li;ul Ijeon examined ht-fure a 
 magistrate, who had asked the prisoner whether she had any 
 ((uestions to put, Init it seemed uncertain whether slie was so 
 asked with reference to tlie particidar examination of the witness, 
 or after all the depositions had l)een read over; and it also 
 appeared that the examinations of the witnesses had been taken 
 in writing before the arrival of tiic magistrate ; an<l that they 
 were then read over in the presence of the prisoner, when the 
 ])risoner was asked if she had any ([uestions to put. It was held 
 that the deposition was not admissible ; 1st, bccaiise it was the 
 duty of the magistrate to ask the prisoner wliethor slic would 
 put any (picstions Avitli reference to the particular witness. 
 2ndly, the examination of tho witness having Ijcen ]jut in writing 
 before tho arrival of the magistrate, the reading it over in her 
 presence did not give the prisoner a proper opportunity of cross- 
 examination ; she had a right to hear the evidence given step by 
 step, and so to have time to consider what ([uestions to put. (n) 
 
 Where the prisoner and prosecutor weie present before the 
 magistrate, and the prosecutor made a statement to the magistrate, 
 Avhich Avas not taken down in writing, and the prisoner's attorney 
 asked the prosecutor a few ([uestions in cross-examination, and 
 these were not taken down in writing. The case was then ad- 
 journed to the next day, when the prisoner was brought up before 
 the same magistrate ; the prosecutor was again sworn, and the 
 magistrate's clerk read over to him a written deposition which had 
 been taken previously to the second hearing. 'J he prisoner's attor- 
 ney cross-examined the prosecutor, and that cross-examination, or 
 some part of it, was taken dow^i by the clerk, and from his notes 
 afterwards a fair copy of the cross-examination was taken down on 
 the copy which had been previously read. Hill, J., held the depo- 
 sition admissible, (o) 
 
 mill Kex V. Smith aj^rocil in this point, 
 that in botli the witness was originally 
 sworn in tho absence of the accuscil ; 
 l)ut the place where the present case 
 failed was that, wlicn the prisoner was 
 brought in, the information was not taken 
 on oath in his presence. Secondly, on 
 tho evidence of Sir. Cooke, the inference 
 plainly arose that the oath was merely an 
 oath to the trutli of the information 
 which had been sworn, and therefore did 
 not extend to the answers given on cross- 
 examination. Perrin, J., agreed with 
 Monahan, C. J. on the first point ; Init 
 added, ' The prisoner Wi\s kept hand- 
 cutTed in another placi', and liere, 
 deliberately and designeiUy, the magis- 
 trate proceeded, contrary to the fair im- 
 port of the statute, to take the deposi- 
 tion of a party not on his oath, in the 
 absence of the prisoner, who was 
 within call, and who was designedly kept 
 back and not called.' Ball, J., gave no 
 opinion on the first point, but agreed 
 with Monahan, C J., on the second. If 
 the magistrate had been silent as to the 
 form of the oath which he administered, 
 it would have been aasumed that the oath 
 was in the usual form ; but here the 
 
 magistrate stated that he reswore the 
 deceased to the truth of his information ; 
 thus confining the oath to the truth of the 
 information ; and, if this were so, the 
 subsequent questions and answers were 
 not under oath. Torrens, J., was of 
 opinion that IJex ?•. Smith, B. & B. 
 330, governed the first point, and that 
 the oath extended to the whole, and 
 therefore the deposition was rightly ad- 
 mitted. Bennefather, B., agreed with 
 Torrens, J., on the first point, but enter- 
 tained very serious doubts upon the 
 second point. This c;ise was tried in 
 1S50, after the 12 & 13 Vict. c. 69, had 
 come into operation, though Benin, J., 
 states that the 9 Geo. 4, c. 54, was then 
 in operation. C. S. G. 
 
 (n) Beg. r. Dav, 6 Cox, C. C. 5.5. 
 Piatt, B. March iS52. 
 
 (.)) Beg. V. Bates, 2 F. & F. 317. 
 AVint. Ass. 1860. Hill, J., said, 'In 
 the London Bolice OHices, where a 
 great number of charges were daily 
 lieard, it was the constant practice to 
 have the abbreviated notes taken during 
 the examination of a witness by the 
 magistrate's clerk, fair copied in full in 
 an adjoining room, and that copy after-
 
 CHAP. IV. v^ III.] 
 
 Depositions. 
 
 Where it was proved that the deposition was taken in accord- 
 ance with the invariable and lon,^-established practice of the 
 magistrate's court at Liverpool, and when the prisoner was before 
 the magistrate, he was defended by an attorney, who had a full 
 opportunity of cross-examining, and did cross-examine, the wit- 
 nesses ; a note of the evidence given before the magistrates, con- 
 sisting of the names of the witnesses, and the heads of what each 
 could prove, was taken by the magistrate's clerk ; afterwards the 
 prisoner and the witnesses were taken into a room, and there an- 
 other clerk, who had not been present at the examination before 
 the magistrate, examined the witnesses from the aforesaid note, 
 and there wrote down the answers, and the witnesses then signed 
 the papers so written by the last-mentioned clerk ; the prisoner's 
 attorney was not there, though he might have been if he liked ; 
 and the prisoner was not asked if he would then cross-examine the 
 witnesses, and did not cross-examine them ; afterwards the pri- 
 soner and the witnesses were again taken before the magistrate, 
 and the evidence so taken down by the clerk in the room in the 
 absence of the magistrate was read over to them ; the prisoner was 
 not then asked if he would cross-examine the witnesses, and his 
 attorney was not then there, though he might have been if he had 
 liked ; the magistrate then cautioned the prisoner, who then signed 
 his own statement, and the magistrate then signed the papers so 
 written as last aforesaid. It was objected that the deposition was 
 not taken in accordance with the 11 & 12 Vict. c. 42, s. 17, but 
 the deposition was admitted ; but, upon a case reserved, it was 
 held that the depositions in this case were bad. The statute re- 
 quires that they should be taken in the presence of the magistrate, 
 and in the presence of the prisoner, and that the prisoner should 
 have an opportunity of cross-examining the witnesses in the 
 presence of the magistrate. In this case these provisions had 
 not been complied with, and these depositions were taken im- 
 properly, (p) 
 
 Where a magistrate's clerk proved that he had taken down the 
 examination of a witness before the magistrate, and he had no 
 doubt that the attorney, who attended before the magistrate on 
 behalf of the prisoner, liad cross-examined the witness, but he had 
 not taken down anything as cross-examination ; he had, however, 
 taken down everything the magistrate considered material. 
 Erie, J., held that the deposition was admissible ; all the requi- 
 sites of the statute had been complied witli. He did not think it 
 the duty of the magistrate to take down ever}' word ; for then it 
 would be necessary to conduct the examination by question and 
 answer, {q) 
 
 Where it is proved tliat the prisoner was present when tlic de- 
 positions of the deceased were taken, althougli tlie law will pre- 
 sume that, as he was present, he had a ' full opportunity ' of cross- 
 examining the witness within 11 ^:. 12 Vict. c. 42, s. 17, ovitlencc 
 
 517 
 
 Where notes of 
 the evidence 
 were taken 
 before the ma- 
 gistrate, from 
 which the 
 witnesses were 
 re-examined 
 by a clerk in 
 the absence of 
 the magistrate, 
 and the ex- 
 aminations 
 "WTitten out in 
 full, and after- 
 wards signed 
 by the magis- 
 trate, the ex- 
 aminations 
 were held to 
 be improperly 
 tivken. 
 
 Wlierc every 
 word not taken 
 down. 
 
 Full opportu 
 nity of cross 
 cx.amination. 
 
 wards read over in flic prcscnoc of the 
 prisoner and signed by the witness, lie 
 thought sufh a ])ractico not only con- 
 venient, but witliin the spirit and inten- 
 tion of the Act, as the pri.soni'r had f\ill 
 opportunity as well as the witness of ob- 
 
 jecting; if tilt 
 incorrei'tlj'.' 
 
 ( P) «<■«. V. 
 1863. 
 
 (?) Rof,'. «". 
 Spr. Ass. 1850. 
 
 evidence were put down 
 Si-e antr, p. 514. 
 Watts, L. & C. 339, Nov. 
 
 Ilendy, 4 Cox, C. C. 243.
 
 r)i8 
 
 ( U' l'!i'i(h-ticc 
 
 [book 
 
 VI. 
 
 may ixn'orllicloss 1)o offorod to prove that lio had not such full 
 o))p(irliinity within snr. 17, .sons to render the depositions iiiad- 
 niissihle. (>•) 
 
 Where, heforo the al)ovc Act, at the time Avlien llio deceased 
 Avas examined before tlie maL,dstrate slic was in a rapid decline, and 
 she stated the f;icts of tlic assault upon her l)y the prisoner very 
 concisely. On a question l)cing put to her by tlic clerk, she said, 
 * 1 can't answer,' and was evidently in a sinking .state. Down to 
 this period .she had answered the questions satisfactorily. The clerk 
 then said he should not put any further questions; and it bein^j 
 stated tliat the prisoner's attorney, who was present, must have an 
 oppoitunity of cross-examining the witness, he said, 'I shall decline 
 putting any question ; the child is evidently not in a fit state to 
 answer.' Tlic deposition was then sigiied by the witness with her 
 mark. There Avas no subsequent examination, and the child died 
 soon afterwards. Piatt, B., inclined to think the deposition ought 
 not to be received, (.s) 
 
 Several depo- 
 sitions may 
 liavc only one 
 cai tiou. 
 
 A deposition 
 of a witness 
 ■who is too ill 
 to travel is 
 admissible, if 
 it refer dis- 
 tinctly to the 
 ehar;:e on 
 which the pri- 
 soner is being 
 examined, 
 and the pri- 
 soner was 
 present when 
 it was taken, 
 hail an oppor- 
 tunity of cross- 
 examining, 
 
 (c) Form of Deposition. — Sir/ninr/ same. 
 
 Where upon an indictment for murder the deposition of a Avit- 
 ness, examined before the committing magistrate, and since dead, 
 Avas tendered in evidence ; there Avas a caption or heading at the 
 commencement of the body of the depositions, but there was no 
 caption at the head of this particular deposition ; and it Avas 
 objected that the deposition Avas, on this account, inadmissible. 
 Alderson, B., ' All that is necessary in this case is to shoAv that 
 the deposition in question AA'as regularly taken under the statute ; 
 the heading applies to all the depositions.' And the deposition Avas 
 admitted. (/') 
 
 The prisoner AA^as indicted for obtaining by false pretences a 
 promissory note for 501. Upon the trial the deposition of Mary 
 RoAve AA-as put in, after proof that it Avas taken by the committing 
 justice in the presence of the prisoner, and that she had a full op- 
 portunity of cross-examining M. RoAve ; that it was signed by the 
 said justice, and that M. RoAve Avas, at the time of the trial, so ill 
 as not to be able to travel. The charge preferred before the said 
 justice was that the prisoner had obtained the promissory note and 
 other A-aluable securities by means of false pretences, and of this 
 charge the prisoner AA'as informed by the said justice. The caption 
 of the deposition of M. RoAve Avas ' DcA^on, to AA-it. The examina- 
 tion of j\l. RoAve, Avife of W, S. RoAve, of, &c., taken on oath this 
 14th day of February, A.D. 1840, at. Sec, before the undersigneil, 
 one of her IMajesty's justices of the peace for the said county, in 
 
 (/■) i;. V. Peacock, 12 Cox, ('. C. -Jl. 
 The prisonei*'s counsel ^avo evidence to 
 show that at the time the depo.sition was 
 taken the prisoner was insane. 
 
 (s) KcfT. V. Ilvde, 3 Cox, C. C. 00. 
 Aug. 4, Sum. Ass. 1848, Piatt, B., how- 
 ever, did receive the deposition, and 
 would have reserved the point ; but the 
 prisoner was acquitted. There scejns no 
 rc.isoii fii iloul.t that if l\v :iny insuper- 
 
 able obstacle the prisoner is prevented 
 from havini^ a full cross-cx.iniination, the 
 de]iosition is inadmissible, and the only 
 question in such a case seems to be whe- 
 ther or not in fact the prisoner was 
 prevented from having such full cross- 
 examination. 
 
 (t) Kec V. Johnsen, 2 C. & K. 3r.4. 
 A. P. 1S47.
 
 CHAP. IV. § in.] Depositions. 519 
 
 the presence and hearing of H. L. (the prisoner), who is now and the same 
 charged before me this day for obtaining money and other vakiable charge was 
 security for money from the said M. Rowe/ &c. It was objected hi'm before the 
 that the charge set forth in the caption is obtaining money and justice, al- 
 valuable securities, but whether legally or illegally is not stated ; ^'^^^p^ ^^^ 
 and no offence was therefore shown, and the said deposition conse- ^^^ char^e^an 
 quently was not receivable in evidence. Tlie objection Avas over- offence. Sem- 
 ruled ; and, upon a case reserved, Wilde, C. J., delivered judgment ^'^ that no 
 as folloAvs : ' The judges are unanimously of opinion that the ob- necessary, 
 jection is not valid, and that the deposition was properly received 
 in evidence. The objection is not that the evidence as set forth in 
 the examination did not sufficiently appear to relate to the charge, 
 upon which the prisoner was being tried, so as to warn and apprize 
 her of the matter to which her cross-examination should be 
 directed, but only that the title of the examination did not with 
 sufficient distinctness state the charge against her. The title of 
 the deposition states the occasion of its being taken, and the matter 
 to which it refers, and there is no authority requiring any title, 
 or as it is called captio7i, to the examination ; and it is sufficient 
 if it be described as the examination of the witness, and the evi- 
 dence refers to the charge upon which the prisoner may be upon 
 his trial ; and as no objection Avas raised that the deposition was 
 defective in that respect, we think the deposition was properly re- 
 ceived in evidence. It may, however, not be improper to observe 
 that the case states that the charge preferred against the prisoner 
 was that of obtaining the promissory note and securities by means 
 of false pretences, and that the prisoner was informed of that charge 
 by the committing justice, and that she had a full opportunity of 
 cross-examining the witness.' (ii) 
 
 Where a woman, having been violated, cut her throat, and a ma- A fleposition 
 gistrate was sent for, and in the presence of the prisoners, who without any 
 were brought into her room, she made a statement on oath, which '^'''i' ^'^'• 
 was taken down, read over, and signed by her. The prisoners did 
 not in fact cross-examine her. The depositions of the other wit- 
 nesses were taken before another magistrate on a charge of rape on 
 the deceased a few days afterwards. There was no caption to the 
 deposition of the deceased ; but it was found attached to the depo- 
 sitions of the other witnesses, and there was a caption to these 
 depositions, stating them to have been taken before the other ma- 
 gistrate. It was urged that the want of a proper caption could 1)6 
 supplied by parol evidence ; but it was held that the 11 & 12 Vict. 
 c. 42, s. 17, authorized taking depositions iri a particular way ; and 
 unless it appeared upon the caption tliat the prisoners wcn> 
 charged with an indictable offence, the document was inadmis- 
 sible (v) 
 
 {ti) Reg. V. Langbridgc, 1 Don, C. C. l)y tlie ■wilnossin the presence of the pri- 
 
 448. 2 C. & K. 97.'). A.n. 1840. soiiirs niiglit be i)rovf(l ; for the general 
 
 (r) Keg. V. Newton, 1 F. & F. fill. rule is, tliat ' where a witness already ex- 
 
 Suni. Ass. ISSO. Hill, J., after consulting ainined in a jmlicial proceeding between 
 
 "Watson, 1>. If a docunient be inadniis- the same ]-.artirs is sim-e dead, his former 
 
 siblo under llie statute as a deposition, examination is ndniissilde as seeondarj' 
 
 it might be used to refresh the memory evichuice; ' 1 Starlc. Kvid. (i1 ; and al- 
 
 of a i)ersonwlio wrote it upon hearing the though tlie new statiite clearly nial<es a 
 
 evidence given, and he might ])rovo deposition taken in pursinmce of it the 
 
 what the deceased stated. Fven if there best evidence of what the witness stated, 
 
 were no writing at all, the evidence given j'ct, if through the neglect of the justice
 
 Tho Htatcmoiit 
 Ih to l>u ill tliu 
 wonl.s <if tlio 
 
 witllOHH Nilll-(! 
 
 the 11 & 12 
 Vict. c. I'J. 
 
 Deposition 
 iiuist bo 
 signed by tle- 
 lioncnt. 
 
 A prisoner's 
 name affixctl 
 to the mark of 
 a witness by 
 mistake. 
 
 Of Evidence. 
 
 [rook 
 
 VI. 
 
 IMust bo by 
 magistrate. 
 
 A deposition 
 is bad vhich 
 does not state 
 that the per- 
 son signing it 
 is a magis- 
 trate. 
 
 By the 1 1 iV lii Vict. c. 42, .s. 17, the magistrate is to take ' the 
 statoint'iit, ' of till) witness in writing, and the form in the .schedule 
 directs the (l(;|)()sition to he taken as nearly as yiossilile in tin; wf^rds 
 the witness u.ses. It cannot he necessary to take down innnaterial 
 and wholly irrelevant statements, (iv) 
 
 If tlio prisoner or liis counsel cross-examine the witnesses when 
 before the magistrate, the answers of the witnes.ses to the cross- 
 examination ought to he taken down hy the magistrate, and 
 returned to the judge, (a*) 
 
 The new statute requires the deposition to be signed by tlie 
 person making it ; such signature was not necessary formerly for 
 its admissibility, (y) 
 
 On a trial for manslaughter, the deposition of the deceased pur- 
 ported to have been made in the presence of the prisoner, and was 
 signed by tho deceased with a cross, he being a marksman. By 
 mistake the clerk wrote the prisoner's name to tlie mark, so tliatit 
 ■primd facie appeared to be the deposition of the prisoner. On a 
 case reserved it was contended that this was a i)atent ambiguity, 
 which could not be explained by oral testimony. It was answered 
 that the document was complete when the deceased put his mark 
 to it, and that signature could not be vitiated by ■what another 
 person wrote : and it w'as held that the deposition was properly 
 received in evidence, (c) 
 
 The magistrate himself, however, by the 11 & 12 Vict. c. 42, 
 s. 17, is required to subscribe the examinations and informations 
 taken by him : and this he ought to do at each examination, and 
 not to defer it till he determines on committing. («) 
 
 Where a deposition had ' Kent to wit ' in the margin, and pur- 
 ported to be ' taken on oath before us of Her ^la- 
 jesty's justices of the peace for the said county,' and concluded, 
 ' This examination was taken before us in the presence of (the 
 prisoner) at Dartford, on the day and year first above mentioned — 
 Hugh Johnson ; ' Maule, J., was of opinion that this document 
 w^as inadmissible under the 11 & 12 Vict. c. 42, s. 17, as it did not 
 purport to be signed by, or to have been taken before, any justice 
 of the peace for tho county in which the prisoner was examined, 
 although it Avas offered to be proved that Hugh Johnson was a 
 magistrate, and acting as such when the examination was taken ; 
 for such proof would not make the deposition purport to be signed 
 otherwise than it did purport. (6) 
 
 or his clerk no deposition, or an irregular 
 deposition, be taken, there is nothing iu 
 tliat statute to exclude tlie proof of the 
 statement of the witness by other means. 
 See K. r. Galvin, 10 Cox, C. V. 198. 
 Keg. ?•. Clarke, 2 F. & F. 2. 
 
 (w) See per Erie, C. J. Keg. v. Hendy, 
 4 Cox, C. C. 243, ante, p. 517. The re- 
 pealed enactment 7 Geo. 4, c. 64, s. 2, 
 provided that magistrates shall take ' the 
 information npon oath of those who 
 shall know the facts and circumstances 
 of the case, and shall put the same, or 
 as much thereof as shall be material, into 
 writing.' Per Alderson B., Rex r. 
 Covenev, 7 C. & P. 667. Rex v. Thomas, 
 7 C. & P. 81 7. Rex r. Gradv, 7 C. & P. 
 
 650. Keg. \r. ■\Villcr, 2 ('. & K. 223. 
 Piatt, B. 
 
 (.>-•) Rex V. Potter, 7 C. & P. 6o0, note. 
 Gaselee, J., and Vanghan, B. 
 
 (y) See Rex r. Fleming, 2 Leach, 854, 
 and see Rex v. Russell, R. & M. C. C. R. 
 356. 
 
 (r) Reg. r. Mullen, 9 Cox, C. C. 339. 
 The deposition was headed, ' Deposition 
 of James Bi-ennan,' and began, 'Taken 
 in the presence and hearing of Peter 
 Mullen." 
 
 \a) Reg. V. Mavor of London, 5 Q. B. 
 555, 1 Sess. Cas. 40. 
 
 {b) Reg. r. Miller, 4 Cox, C. C. 166. 
 March 1850. This decision may be 
 right if it be confined- to deciding that
 
 CHAP. IV. ^ III.I 
 
 Depositions. 
 
 It is not necessary that the separate deposition of each witness 
 should be signed by the justices, but it is sufficient if the deposi- 
 tions are signed as a body by the justices, according to the 
 couchision of schedule M. to the act. (c) 
 
 ((?) Deposition admissible vjlien vjitness so ill as not to he a.hle to 
 
 travel. 
 
 521 
 
 Where on a trial for larceny a surgeon proved that a witness 
 was suffering from bronchitis, and that her life Avould be endangered 
 if she were brought into court : it was objected that she was not 
 proved to be so ill as not to be able to travel ; but it was held 
 that, as it was sworn that her attendance would endanger her life, 
 the deposition was admissible. ((/) 
 
 Where a witness had come to the assize town in order to attend 
 a trial, and about half an hour before it came on was in the 
 building where the court sat, when a medical man advised him to 
 return home, and swore that his remaining to give evidence would, 
 in his opinion as a medical man, have been highly dangerous, and 
 the witness was on his way home while the trial was going on ; it 
 Avas held that his deposition was admissible ; for the witness was 
 not able to travel to the place at and in which he was to 
 give evidence. The journey Avas not over until he arrived at the 
 court, and as in the opinion of the medical man he could not 
 without danger come to this court, he was not able to travel to the 
 place where his evidence must be given, (e) 
 
 So where upon an indictment for stealing, a physician proved 
 that he had seen the prosecutor on the morning of the trial, and 
 that he was not able to attend in consequence of a second attack 
 of paralysis; he could not speak, and could not be made to hear, 
 and if brought he would not be able to give evidence ; but he 
 might be brought without danger of his life, though he ought not 
 to be permitted to roam abroad. He had been seen in the street 
 the day before near his shop-door. It was objected that the 
 prosecutor was not so ill as not to be able to travel according to 
 the words of the statute, and that an application ought to have 
 been made to postpone the trial ; but the sessions hekl that, as he 
 was disabled from giving evidence at the trial by an attack of ill- 
 ness, not plainly appearing to be temporary, his deposition was 
 
 Where life 
 would be 
 enJangered. 
 
 Where a wit- 
 ness came to 
 the building 
 where the 
 court sat, 
 but was sent 
 away by a 
 medical man, 
 as his remain- 
 ing would be 
 highly dan- 
 gerous. 
 
 Where a wit- 
 ness is too ill 
 to give evi- 
 dence, though 
 he might at- 
 tend without 
 danger to his 
 life, his depo- 
 sition is ad- 
 missible. 
 
 sueli an informal (locuiiicnt is inadmissi- 
 ble under tlic statute as a regular depo- 
 sition ; but the deposition mif^lit have 
 been used to rcfresli llio memory of the 
 justice's clerk who took down the evi- 
 dence, and he mij,']it have provetl what the 
 witness deposed to before the justices. 
 
 (c) K. V. Parker, 39 L. J.' M. V. 61. 
 L. R. 1 C. C. K. 225. 11. V. Carrol, ] 1 
 Cox, C. C. 322. II. V. Young, 3 V. & K. 
 106. K. 1'. Lee, 4 F. & F. 63. 1!. r. 
 Osborn, 8 ('. & P. 113. AVln're the .Ic- 
 positions were on separate sheets, and 
 were signed only at the end by the 
 magistrate, the deposition of one of the 
 witnesses who was dead, w'as admitted in 
 evidence, although the sheets were not 
 
 fastened together at the time of the 
 signature by the magistrate, but iiad been 
 afterwards attached togetlier by the ma- 
 gistrate's clerk. ]{. V. Lee, 4 F! k F. 63, 
 ])er i'olloek, ('. n. ; where the cro.ss- 
 examination was at a sub.se<|uent time 
 to the examination in chief, and the 
 whole deposition was held to be irregular, 
 as the cross-examination was not signed 
 by the magistrate. K. v. France, 2 M. 
 & Rob. 207. 
 
 ((/) llcg V. Day, 6 Cox, C. C, 55, 
 I^Iarch, 1852. Piatt, 15. 
 
 (c) Reg. r. AVicker, 18 Jurist, 252. 
 ChaiuKll, Scrjt., after consulting Parke, 
 P.. March l!^5i.
 
 .'522 
 
 Of Jumlcncr. 
 
 [book VI. 
 
 Cases wlicro 
 tlie jirodf liris 
 been iiiMiirti- 
 cieiit to satisfy 
 the court that 
 the witness 
 •was too ill to 
 fttteiul. 
 
 Generally a 
 surgeon should 
 be called to 
 prove the 
 illness of the 
 ■witness. 
 
 admissihlo ; and, upon a case reserved, it was licM tliat tliis ruling 
 was right. (/") So wlierc a witness was suffering IVom a tendency 
 to softening of the brain, and the surgeon proved that he was not 
 in a condition to give evidence, as the effect of giving evidence 
 W(iuKl 1)0 thtngcrous to his life; hut he could go to the train in a 
 cab and by the train ; he was .so ill and nervous, however, that if 
 vigorously cross-examined he would soon got confused and could 
 not be depended ujjon ; and, though he could travel witho\it 
 luatorial injury to his health, he could not complete the object of 
 liis journey ; the deposition was admitted, {g) 
 
 A material witness had gone before the grand jury on the first 
 day of tlie session, nnd had gone home at night and returned in 
 the morning f(n- two days ; but on the morning of the trial slie 
 had been seized with a bowel complaint, and when the policeman 
 left Hounslow she was unable to travel ; it was held that the 
 deposition Avas not admissible, as it was not satisfactorily proved 
 that the witness was so ill as to be unable to travel, ih) So 
 where a constable proved that he saw a witness in bed at nine 
 o'clock the evening before, and he had a cold and inflammation, 
 and was attended by a medical man, and on enquiry that morning 
 he heard the witness was very bad ; it was held that the deposi- 
 tion was not admissible, (i) 
 
 So where a witness had seen another witness, whose deposition 
 was proposed to be given in evidence, in bed and apparently ill on 
 the 18th of March, and .she Avas then attended by a surgeon, and 
 the trial was on the 23rd of March ; Patteson, -J., said, ' I think 
 that, in order to allow a deposition to be read in evidence under 
 this enactment, the surgeon should be called, if there be one 
 attending the witness. There, no doubt, may be cases where a 
 person may be not in a state of health to be able to be present at 
 a trial, and yet is attended by a surgeon, and in such cases other 
 evidence may be sufficient, especially when the inability of the 
 w'itness is of such a nature as to prevent even the possibility of his 
 attendance as a witness ; ' and rejected the deposition, {j) So 
 where the attorney for the prosecution proved that he had seen a 
 Avitness a few days before, and found him ill of fever ; Erie, J., re- 
 fused to admit the deposition ; as the witness, not being a medical 
 man, could not speak as to the nature of the disease, (k) So 
 Avhere a police constable proved that he saw^ King in bed on the 
 morning of the trial. Ho had fever, and the divisional surgeon 
 was attending him. Yesterday morning he was in bed, and is not 
 able to get up yet. He had heai'd that King had been confined to 
 his bed about a fortnight ; and he produced a certificate. Bylcs, 
 J., refused to admit King's deposition, saying, ' I am of opinion 
 that, to make this deposition admissible, there should be evidence 
 of a medical man on oath, or other evidence upon oath, Avhich the 
 Court might think of ecpial value to sworn medical evidence. The 
 
 (/■) Reg. r. Cockbiun, D. & 13. 203. 
 H.T. 1857. 
 
 (O) Eeg. r. "Wilson, 8 Cox, C. C. 453, 
 Jan. 7, 1861. The Recorder on the au- 
 tlioritv of Reg. v. Cockburn. 
 
 {Ji) Reg. V. Hanis, 4 Cox, C. C. 440. 
 Aug. 1850. The Common Serjeant. It 
 
 is not stated Mho proved the illness. 
 
 (i) Reg. V. rilmcr, 4 Cox, C. C. 442. 
 Oct. 1850. The Common Serjeant. 
 
 (j) Reg. V. Riley, 3 C. & K. 116. 
 March 1851. 
 
 (I) Reg. V. Philips, 1 F. & F. 105. 
 March 1858.
 
 CHAP. IV. 
 
 III.] 
 
 Depositions. 
 
 523 
 
 pregnancy and 
 delivery of 
 women. 
 
 constable says he lias been told King is suffering from fever ; how 
 can he know the illness is of such a nature as to render the witness 
 " so ill as to be unable to travel ? " A medical man is the proper 
 witness of that fact.' (V) 
 
 Where a material witness for the prosecution had been delivered Cases as to the 
 of a child a week before, and was unable to travel ; it was con- 
 tended that the prosecutor knew the state in which the witness 
 was, and ought to have applied to postpone the trial ; but it was 
 held that the deposition was admissible, as every requisition of the 
 'statute had been complied with, (m) 
 
 Where it was proved that a woman was dail}^ expecting her con- 
 finement, and her brother stated that she was poorly otherwise, 
 and that she was therefore too ill to travel from her residence to 
 the place of trial, a distance of twenty-five miles ; it was objected 
 that the illness ought to have been proved by a medical man, and 
 that the expectation of her confinement was not an illness within 
 the 11 & 12 Vict. c. 42, s. 17 ; but the sessions admitted the depo- 
 sition ; and on a case reserved on the points raised on behalf of 
 the prisoner, it was held that the deposition was properl}^ admitted. 
 The proposition that an approaching confinement Avas not such an 
 illness as was contemplated by that section could not be sustained. 
 There might be incidents attending an approaching parturition of 
 such a nature as to bring it within the statute. The question 
 whether the illness proved is or is not within the statute, is a 
 question for the determination of the presiding judge, and if to his 
 mind, exercising his discretion upon the facts proved, the evidence 
 of illness is sufficient, the Court above ouglit not to interfere with 
 his decision, {n) 
 
 Where a husband stated that his wife was pregnant and unable 
 to attend ; but he was imable to state how far advanced she was, 
 and she Avas about the house attending to her household duties as 
 usual, and had prepared breakfast for him that very morning as 
 usual, and had not j'ct been confined to bed; but a fortnight before 
 she had suffered somewhat in consequence of being driven to the 
 assize town ; Bramwcll, B., permitted the deposition to be read, (o) 
 
 In one case ( p) Lord Coleridge, in delivering the judgment of the Old age and 
 Court of Criminal Appeal, said, 'We think that old age, and "en-ousness. 
 nervousness, and inability to stand a cross examination, is not a 
 sufficient foundation for the reading of the deposition, and that it 
 would raise a dangerous latitude in practice if wo were to admit 
 it upon such grounds.' 
 
 (e) Otliev caftes in which <h'2'io><ifionfi admimble. 
 
 A deposition of a witness, who has been kept away by the jtro- A doiv>sition 
 
 curemcnt of the prisoner, is admissible. Scaifc, Smith, and Rookc "! ""^ admis- 
 ^ ' ' 8ililc nicrclv 
 
 (/) l!og. r. AV.'llon, 9 Cox, C. C. 20C,. 
 Nov. 18()2. 
 
 (m) lJi% V. Ilarnoy, 4 Cox, C. C. 411. 
 A^^f,^ 18.'")(t. Gunioy, Coninir. See ]{. )•. 
 Wilton, 1 F. & F. :i09. K. v. Walker, 1 
 F. & F. 534. 
 
 {n) Keg. V. Stephenson, L. & C. Id'), 
 E. T. 18()'2. Erie, C. .1., Ihouglit tlint 
 the sessions acted rightly in aihnitting 
 the deposition. See JJnke of Fii'antort v. 
 
 Craw.shav, X, L. .1. ('. V. ;M'2. IJog. r. 
 Iluddersliehl, 7 K. & H. 7!>l. Heg. v. 
 Oniant, « ("ox, V. ('. iCtd, .July 18.'>4. 
 
 {(>) IJeg. r. Croueher. 3 F. & F. 'JS.'). 
 Sum. As.s. 1S()2. The prisoner was 
 aef|nittod, or the point woiild have been 
 reserved. 
 
 (/)) K. ?". Farrell, 12 Cox, C. C. CO.-.. 
 See 1{. r. Tlionipson. 13 T'ox, ('. C. 
 181.
 
 524 
 
 on tlio Kiouiid 
 tliiit the wit- 
 licHs r.'uiiiol 111) 
 fiiiilid iifU'T 
 (lili^'ciit 
 scnrcli ; I ml it 
 is, if tlic iil«- 
 HCIICC of tlio 
 uitiicss lias 
 licen jirorurcil 
 liy llic I'li- 
 8iii)cr. 
 
 A (Iciiositiou 
 is only ad- 
 missible 
 «,','ainst the 
 juisoncr pro- 
 riiring such 
 ahscncc. 
 
 ' )/' I'!ri(J('t}cr. 
 
 ROOK vr. 
 
 Vitness insane 
 at the time of 
 the trial. 
 
 worn tii('<l fur imIjIxi y, and llie (lepo.siti(jii of ono (Jaruott, wliicli 
 had Ix'cii ic't;iilarly taken bolorc a ma^Mstratc, in the picscnco of 
 llio ])ris()n»is. was tcndiTcd in evidence. Due .soareii had been 
 made for thi; witness on the part of the prosecution, but she could 
 not bo found, and did not appear on the trial, and there was evi- 
 dence that she had been kept away l)y the procurement of Smith ; 
 but this evidence did not implicate the other prisoners. The 
 rcadiiiLC of this deposition was oljjected to on the part of Smitli ; 
 but the learned judi^c admitted it, being of opinion that the pro- 
 curement by Smitli was proved ; and in summing up he left (lar- 
 nott's statement, among the other evidence, to the jury, not telling 
 them that tlic deposition could affect Smith only. Upon a motion 
 for a new trial after a verdict of guilty against Scaife and Ilooke, 
 it was held that the dcpo.sition was rightly admitted in evidence 
 against Smith ; for if it be proved that a witness is kept away l)y 
 the procurement of the prisoner, tlie deposition of that witness is 
 admissible ; but that the deposition was erroneously left to the 
 jury against the other prisoners ; for a deposition is not admissible 
 on the ground that the prosecutor, after using every possible en- 
 deavour, cannot find the Avitness ; and the deposition is only 
 evidence against the prisoner who procured the absence of the 
 witness.' (q) 
 
 Where a witness, who was examined before the magistrate, 
 is insane at the time of the trial, he is considered as in the same 
 state as if he were dead, and his deposition may be given in 
 evidence, (r) But in such a case it should be shown that he was 
 not insane at the time his deposition was taken. Where on an 
 indictment for murder it was clearly proved that a witness, who 
 had been examined before the coroner, was insane at the time 
 of the trial, and had been so for some time previously, but there 
 ■svas no evidence as to the state of the mind of the Avitness at the 
 time when he was examined before the coroner; and it was pro- 
 
 (7) Eeg. V. Scaife, 17 Q. B. 238 ; 2 Den. 
 C. C. 281. E. T. 1851. Although there 
 was nothing in the former statutes pro- 
 viding that the depositions taken under 
 them should in any cast> be evidence, 
 yet it was considered, that} if it were 
 jireviously proved satisfactorily to the 
 lourt that the witness was dead, or that 
 he had been kept away by the practices 
 of the prisoner, his deposition might be 
 given in evidence on the trial of an in- 
 dictment : provided the deposition were 
 duly taken upon oath in the presence of 
 the prisoner, when charged before a 
 lua-istrate. 1 Hale, P. (.'. 305, 586. 
 I'.uil. N. r. 212. See 1\. v. Shippev, 12 
 Cox, C. C. Itil. R. V. Smith, 2 N. T. C. 
 211. E. V. AVard, 2 C. & K. 750. 
 Harrison's case, 4 St. Tr. 492, 5th Ees. 
 in Lord Jlorlcy's case, Kelyng, 55. Fost. 
 Disc. 337. Mr. Starkie iTi a very able 
 note to the case of Rex r. Smith, 2 
 N. P. C. 211, observes that the two sta- 
 tutes of Ph. & M. seem to have been 
 pissed without any direct intention on 
 the part of the legislature to use the exa- 
 minations and depositions as evidence 
 
 upon the trials of felons. But the taking 
 of them having been sanctioned by the 
 legislature, they became, it seems, ad- 
 missible in evidence upon the niles and 
 principles of evidence already est.ablished ; 
 and the effect of the statutes in point of 
 evidence seems to consist in removing an 
 olijcction which would lieforc have occa- 
 sioned the rejection of such evidence, 
 namely, that the proceeding was extra- 
 judicial. ' The object of taking the de- 
 positions is that if any of the witnesses, 
 whose evidence is given before the magis- 
 trates, should be unable to attend at the 
 trial, or die, there should not by reason 
 of this be a failure of justice.' Per Cress- 
 well, J., Reg. V. "Ward, 2 C. & K. 759. 
 
 (r) Rex V. Eriswell, 3 T. II. 707, per 
 Lord Kenyou, C. J., Ashurst, J., and 
 Grose, J., and there seems no reason to 
 doubt that the deposition of a person who 
 has become insane at the time of the 
 trial would be admissible since the new 
 statute, either on the same grountl as 
 Reg. r. Scaife, supra, or Reg. r. Cock- 
 burn, ante, p. 522, was decided.
 
 CHAP. IV 
 
 III.] 
 
 Depositions. 
 
 525 
 
 at sea or 
 abroad. 
 
 posed to give his deposition in evidence, Park, J. A. J., said, 
 'There is one positive objection, that the witness might be insane 
 when ho was examined before the coroner;' and the deposition 
 was rejected, (s) Bat where on an indictment for night poaching 
 and assaulting W. Rickards it ajopeared that he was suffering 
 from delirium and depression of spirits in consequence of a blow 
 on the head, and his intellects were affected by the injury, but it 
 was probable that he would recover : it was held that if he was 
 actually insane at the time of the trial his dejsositiou taken in the 
 presence of the defendant was receivable in evidence, although 
 the insanity might be temporary ; but the medical witness, being 
 unable to state that he was at the time of the trial in a state 
 of insanity, the deposition was rejected, {t) 
 
 It has been said that the deposition of a witness beyond the sea AVitness at tlie 
 was admissible, («) but it was held before the new Act that the time of trial 
 deposition of a witness, who had been examined before the magis- 
 trate, and who had since gone to sea, was inadmissible, {v) And 
 since the new Act, where on a trial for larceny it was proposed to 
 put in evidence the deposition of W. Doodt, which had been duly 
 taken in the presence of the prisoner, who had the opportunity of 
 cross-examination, and it was satisfactorily proved that W. Doodt 
 was not absent with any intention of defeating justice, but, being a 
 foreigner, serving on board a foreign vessel at the time the pro- 
 perty was stolen, he had, since the committal of the prisoners, re- 
 turned to his own country, and at the time of the trial was residing 
 in a foreign kingdom. It was contended that, although the cause 
 of absence was not Avithin the 11 & 12 Vict. c. 42, s. 17, the depo- 
 sition was receivable independently of that statute. But, on a case 
 reserved, it was held that the deposition was inadmissible. Al- 
 though it was quite j^ossible that cases might occur in which 
 depositions would be receivable in evidence under the old rule, and 
 independently of the statute, yet if the admissibility of depositions 
 was extended beyond the cases provided for by the statute, the rule 
 ought to be carefully and rigidly limited. And in this case it was 
 consistent with what appeared that tlie attendance of the witness 
 might have been obtained, and it was not shown that anything was 
 done by writing or otherwise to procure his attendance. (?(') 
 
 One of the objects of passing these statutes was to enable the 
 judge and jury before whom the prisoner is tried to sec whether 
 the evidence of the witnesses at the trial is consistent with the 
 
 Deposition 
 may be used 
 to contrailict 
 
 witne.ss Ity the 
 
 account given by them before tlie committing magistrate ; {x) and prisoner ; 
 therefore an information, when judicially and regidarly taken, may 
 be used on the part of the prisoner, when the informant gives his 
 evidence at the trial, to contradict his testimony. Thus it wa,s ad- 
 
 (.«) Rex V. Charles Wall, "Worfestcr 
 Sura. Ass. 1830. See this case more fully 
 stated, post, p. 534. In Ilex v. Eriswell, 
 supra, the ])auix'r, whose cxaniinatidu 
 was in <|Ucstion, had bci'onjc insane after 
 the cxaTiiination was taken. 
 
 (0 Kej,'. V. .Marshall, C & U. 1(7, 
 Ludlow, Serjt, after consultini,' Coltnian, 
 J. It is not stated in the report when 
 the blow on the head was inllicted. 
 
 («) Bull. N. r. 212. 
 
 (v) Hej,'. r. ILman, 8 ('. & V. U7, 
 Bolhind, 15., and Coltnian, .1. By eon- 
 sent of eonnsd for the Crown, it si'enis 
 it ini^^ht bi- read for the ]pris(iner. S. ('. 
 See 1{. i\ Hunt, 2 t'ox, C. C. 2<;i. 
 
 (w) Reg. V. Austin, Dears. ( '. C. 012, 
 7 Co.x, C. C. 55. Jan. LS.ItJ. 
 
 {x) See the judgment deliveretl by 
 Gro.se, J., in 1 ,anibc\s cise, 2 Loaeh, 558. 
 2 Pl.ill. F.v. 70.
 
 52G 
 
 (\!ul liy the 
 Crown vvilli 
 thu pcriiiis.siun 
 of tlic Court. 
 
 i>J Evidfucv. 
 
 liU(JK VI. 
 
 milted in Lanl Sl(i(]'<ir(l's rase, (_>/) tliat tlio deposition of ;i witncKs, 
 l.dci'ii bt'lDic ji justice! of the pcaec, )ni<4lit l)e read at the desire of 
 llie prisoner, in order to take ofif the credit of tlie witnes.s, })y show- 
 Iml; u variance between the deposition anil the evidence ^iveu in 
 court vii'd i'ore. And not only on the j)art of the pri.soner, but of 
 the Crown, by the permission of the judge, depositions may be .so 
 used, even for the purpo.sc of impcacliing the credit of u witness 
 calletl for the prosecution. 
 
 Thus where a witness foi- the ])rosccation, on being examined, 
 gave a ditferent account of tiie transaction from what he had de- 
 posed to before the committing magistrate, and the counsel for the 
 ])rosecution proposed to contradict him by proving the deposition, 
 which was objected to on tl)c part of the prisoner ; Baylcy, J., after 
 consulting Holroyd, J., admitted the proposed contradiction, (z) 
 And see as to the present practice 28 & 29 Vict. c. 18, s. 3, noticed 
 2>o.sY, ch. 5, s. 2. 
 
 Depositions 
 ailiuissiblc 
 upon trial of 
 a different 
 offence. 
 
 Since tlie 11 
 & 12 Vict, 
 c. 42. 
 
 A deposition 
 t'xken on a 
 charge of as- 
 sault held not 
 admissible on 
 an indictment 
 for cutting 
 with intent to 
 
 if) ll^/'^'i Deposit iuiifi ndhiiss'thlc v/jiKtn trial of ". (]i(l<'i-cid 
 
 ojfence. 
 
 If the depositions were duly taken before the new statute, they 
 were receivable in evidence, after the death of the deponent, not 
 only upon the trial of the prisoner for the offence with which he 
 was charged at the time they were taken, but upon an indictment 
 for another offence. Thus a deposition was held admissible in a 
 case of murder, although it was taken when the prisoner had been 
 brought before two magistrates upon a charge of an assault upon 
 the deceased, and also upon a charge of robbing a manufactory 
 which the deceased had been employed to guard, (h) 
 
 But the particular wording of the 11 & 12 Vict, c. 42, s. 17, has 
 led to some doubt upon this subject, (c) 
 
 Upon an indictment for wounding T. Goode with intent to do 
 him grievous bodily harm, it appeared that at the time of the trial 
 T. Goode was too ill to attend, and that his deposition had been 
 taken before the committing magistrate according to the 11 & 12 
 Vict. c. 42, s. 17, on a charge of assault against the prisoner, which 
 was founded on the same identical evidence as was offered in sup- 
 port of the present indictment : and it was held that this deposi- 
 
 (y) 3 St. Tr. p. 131. 2 Phill. Ev. 76. 
 
 {z) Eex i\ Boyle, cited in "Wright v. 
 Beckett, 1 },[. & Roll. 422. Oldroyd's 
 case, R. & R. 88. "Wright v. Beckett, 
 1 M. & Rob. 414. Reg. r. Hallett, 9 C. 
 & P. 748. Reg. r. Williams, 6 Cox, 
 C. C. 343. 
 
 (6) Rex V. Smith, R. & R. C. C. E. 
 339. S. C. 2 Stark. N. P. C. 208. 
 Eleven of the judges met. Abbott, J., 
 thought the evidence ought uot to Lave 
 Imcu received. Dallas, J., Graham, B., 
 Richards, C. B., and Lord Elleu- 
 borough stated that they should have 
 doubted the admissibility of the evi- 
 dence but for the case of Rex v. Rad- 
 bourne, 1 Leach, 457. R. r. Shippev, 
 12 fox, C. C. 161. 
 
 (<•) In Caudle v. Seymour, 1 Q. B. 8S9, 
 where a clerk went upstairs and took the 
 
 information of a girl as to an assault, on 
 oath, whilst the magistrate remained in 
 the kitchen, and it did not api>ear that he 
 heard what the girl said, it was held that 
 the information was illegally taken, as it 
 was not taken in the presence of the ma- 
 gistrate. Coleridge, J., s.nid, 'It is far 
 too common a practice for the clerk to 
 examine the witness apart, and take down 
 the answers, and then read them over in 
 the magistrate's presence ; ' and again, 
 ' A magistrate taking depositions has a 
 discretion to exercise ; he is to examine 
 the witness, hear his answere, and judge 
 of the manner in which they arc given. 
 If he does not, how is he in a condition, 
 supposing the charge were felony, to 
 decide whether or not bail shall Ix; 
 taken ? '
 
 CHAP. IV. § 111.] Depositions. 527 
 
 tion was not admissible in evidence upon this indictment. Where a do grievous 
 prisoner was taken before a magistrate on any charge, his attention ^'O'l^'y l'^'™- 
 would necessarily be directed to that particular charge, and his 
 cross-examination would probably be directed to meet such charge 
 alone ; in addition to which, cases might well be supposed in which 
 the justice might prevent the prisoner from cross-examining as to 
 anything which did not ajspear to him relevant to the particular 
 charge then pending before him. Upon these grounds it Avould be 
 very unreasonable to permit a deposition taken on a charge for one 
 offence to be admitted against a prisoner on a trial for a different 
 offence. Then, if the words of the section itself were carefully 
 examined, it was plain that they only authorized tlie giving in evi- 
 dence of a deposition upon an indictment for the very same offence 
 as was ' charged ' before the justice. The section commences by 
 directing the manner in Avhich a deposition is to be taken against 
 any person ' charged with any indictable offence,' and afterwards 
 provides that ' if upon the trial of the person so accused ' certain 
 proof be given, such deposition may be read 'as evidence in such 
 prosecution.' Now that must mean a jarosccution for the very 
 offence ' charged ' before the justice, (cl) Whether, therefore, the 
 reason of the thing or the words of the section were considered, a 
 deposition could only be admissible where the indictment was for 
 the same identical offence as that ' charged ' before the justice, and 
 upon which such deposition was taken, and consequently this depo- 
 sition must be rejected, (e) 
 
 But where the prisoner was indicted for manslaughter, and the Deposition on 
 deposition of the deceased had been taken on a charge that the =} '^ '^'/o*-' ^' 
 
 • 1- 1 /^ 1 • 1 111 ^ p 1 • 1 lelouiously 
 
 prisoner did leloniously stab, cut, and wound the deceased, oi which woumling ad- 
 stabbing, cutting, and wounding the deceased was likely to die, and niittcd on a 
 the preceding case was cited ; Wightman, J., received the deposi- *i.j„„^7r"''" 
 tion, saying, ' There is no decision precisely in point. The case 
 cited differs in one respect from this. There the original charge 
 was an assault; here there is something more.' (/) 
 
 On a trial for murder it appeared that between the blow ami the A deposition 
 death the deposition of the deceased had been duly taken before a ^^^. ^„\^Tf,^„ 
 justice, in the presence oi tlic prisoner, on the charge oi wountling with intent to 
 the deceased with intent to do some grievous bodily harm to him, do grievous 
 and the admission of this deposition was objected to on the ground T '.•^' -I'V'",. 
 that the deposition was not taken on the same cliarge lor wnicli tlie a trial for 
 prisoner was on his trial, and the two preceding cases were cited ; municr. 
 but the deposition was received, and, on a case reserved on the 
 question whether the deposition taken on the charge of maliciously 
 wounding with intent, &c., was properly received in evidence, it 
 was held that it was. Before the passing of the ]1 & 12 Vict. 
 
 {(l) Sue. 20 also shows that tliis is tliu ■\Villianis, .1., and relVrrinj,' to ilex r. 
 
 meaning of this section, for, if a parly be Smith, siijtro. Lord Caniidu'll, C .1. 
 
 bound by recognizance to give evidenic tliought tliat Die authority of Kex v. 
 
 against a prisoner for one uifcnce (an as- Sniilii was very m\i( h inijiaired by the 
 
 sault), ]u! ch\aily wouhl not forfeit Ids dissent of l.tml Tenterden, and all agieed 
 
 recognizance by failing to give evidence that that case was not binding under the 
 
 against such prisonei for another olfencc 11 & 12 Vict. c. 42, s. 17. 
 (feloniously wounding). (/) Reg. r. Dilniore, G Cox, (". ('. 52, 
 
 (f) Rt>g. r. Ledbettcr, 3 ('. & K. 108. March 18r)2. The j.oint would hnvc 
 
 Sum. Ass. ISoO. Greaves, (). ("., after been reserved, but the prisoner w.is ac- 
 
 consulting Lord Campbell, (.'. J., and quitted.
 
 528 
 
 Of Evidence. 
 
 [book 
 
 VI. 
 
 Where tho 
 charges arc 
 substantially 
 different. 
 Deposition on 
 a charge of 
 administering 
 poison with 
 intent to pro- 
 cure abortion, 
 admitted on a 
 trial for » 
 murder. 
 
 (•. 12, I Ik; (Irposit.ioM would have been adniissiijle, (.7) :iii(l tliere was 
 iiotliiiij;- ill tlie 1 I I'C: 1 li Vict. c. 42, to rcmler it iiiadiiiissihle, or to 
 restrict tlu; rule, Avliicli had been e.stablishr;d by practice since tho 
 statutes of l*hili|) and Mary. Tlie legislature has provided ' tiiat 
 the persons whose evidence is to be taken shall bo "those who 
 shall know the facts and circumstances of the case" not of the par- 
 ticular technical charge on which the prisoner is afterwards tried ; 
 and then it says that if the witness be dead the deposition may be 
 ailmissil)le "on the trial of the person so accused," not on liis trial 
 for the particidar offence with which h(! was charged l)efore tlie ma- 
 gistrate; and though the charge at the trial be not identically the 
 same as that made when the deposition was taken, no harm can 
 result from holding it admissible ; because it would always be 
 matter for inquiry by tlie judge trying the case whether the pri- 
 soner had had a full opportunity for cross-examination ; if the 
 charge on which the deposition was taken was not identical with 
 that stated in the indictment.' (/t) 'The question is not whether 
 the charge made on the inquiry before the magistrate was exactly 
 the same as that made on the trial, but whether the inquiry was 
 such as afforded to the party accused a full opportunity of cro.ss- 
 examinatiou ? ' (i) 'In li<'(j. v. Ledhdter it might very well have 
 been that a full opportunity of cross-examination Avas not afforded. 
 On a charge for a common assault, the Avounding subsequently 
 charged in an indictment might not have been material ; {j) but 
 here the whole of the circumstances which came before the court 
 at the trial were before the magistrate, with the single exception 
 of the death of the deceased ; and the prisoner's opportunity of 
 cro-ss-examining was so complete, that his counsel's ingenuity could 
 not suggest a ([uestion on the one inquiry which Avould not have 
 been so on the other.' {k) If this construction were not the true 
 one, the deposition of a person, who afterwards died, could 
 never be used on a trial for the murder or manslaughter of that 
 person. {I) 
 
 But this case by no means decides that a deposition Avould be 
 admissible if the charges on the two occasions were substantially 
 different, {m) 
 
 Where on an indictment for murder by administering poison 
 Avith intent to procure abortion, the deposition of the deceased had 
 been taken on a charge against the prisoner of having administered, 
 or caused to be taken, poison in order to procure abortion ; Cock- 
 burn, C. J., admitted the deposition, being disposed to think that, 
 the transaction being the same, the evidence Avas admissible, 
 although, in consequence of the death of the AN-oman having 
 supervened, the charge had assumed a different shape and cha- 
 racter, {n) 
 
 (cf) Hex V. llaJbounic, 1 Lcncli, 457. 
 Ee.\ t\ Smith, ante, p. 520. 
 
 (h) Per Jervis, C. J. 
 
 (0 Per Alderson, 15. 
 
 (j) jWdwson, B., addi'd, 'I therefore 
 do not say whether Mr. GreaA-es was or 
 was not wrong in rejecting the dej osi- 
 tion in that case.' 
 
 (*•) Per Alderson, B. 
 
 (/) Keg. V. Beeston, Dears. C. C. 405, 
 M. T. 1S54. 
 
 (//() In Eeg. r. Beeston, Jervis, C. J., 
 said, ' I do not mean to say that a depo- 
 sition would be admissible if the charges 
 on the two occasions were substantially 
 di fie rent.' 
 
 (/() Keg. V. Fretwell, L. & C. 161, E. T. 
 lSt3"2. The point was reserved together 
 with another, which being decided in 
 favour of the prisoner, this point was not 
 noticed.
 
 CHAP. IV. § II].] Depositions. 529 
 
 Where on a trial for murder it appeared that the prisoners had Deposition on 
 
 been orioinally apprehended on a charo^e of robbino- the deceased * charge of 
 
 ■^ 11 robbeiv with 
 
 with violence, and the death was alleged to have been caused by violence ad- 
 
 that violence ; Pollock, C. B., admitted the deposition of the de- mitted on a 
 
 ceased, which had been made, on the charge of robbery with vio- t"'^l for 
 
 lence, in the presence of both prisoners, with a full opportunity of 
 
 cross-examination, (o) 
 
 Where a prisoner is charged before a magistrate with obtaining 
 ro.oney by false pretences, and afterwards indicted for uttering a 
 forged promissory note, the charges arising out of one and the same 
 transaction and being in fact identical, and the prisoner having had 
 the opportunity of cross-examination before the magistrate : held, 
 that the deposition of a witness taken at such hearing, and who 
 was afterwards unfit to travel to give evidence, was admissible and 
 might be read at the trial for uttering the forged promissory 
 note. (2^) 
 
 On a trial for murder it appeared that the deceased had sworn An Informa- 
 an information for rape against the prisoner in his presence, and and reco"-n^i- 
 had subscribed it with her mark, before a magistrate, and the pri- zance of "the 
 soner had executed a recognizance, Avith sureties, to appear to the accused to 
 charge at the ensuing assizes ; before which, however, he mari'ied cJ^^r^e^ad- 
 the deceased, but they never lived together after the marriage ; and mitted in order 
 statements of the prisoner were proved tending to show that he to prove a 
 married her to prevent the prosecution, and he had said that he JJ)^„.',ie,. „[ the 
 would give her a short life. Christian, J., received the information informant, 
 and recognizance; but he told the jury that they were not to re- 
 gard them as evidence of anything, save simply of the facts that, 
 before the parties married, such a charge had been made, and the 
 prisoner placed under recognizances to stand his trial for it ; that 
 they had nothing whatever to do with the question whether the 
 charge was true or false, but that tlie facts evinced b}- the nicre ex- 
 istence of tlicse documents might be taken into their consideration, 
 along with the other circumstances, specially as bearing upon the 
 question of the existence of a motive, which might have prompted 
 the prisoner to the commission of the murder. And, on a case re- 
 served, it was held that this evidence was properly admitted. It 
 was not offered as evidence of an information taken under the 
 statute, but was given in evidence as a charge found to l)c in writ- 
 ing, and which happened to be in writing, because the information 
 was made upon a certain occasion. The recognizance of tlie pri- 
 soner was taken upon the same occasion as that on which the 
 charge was made, and was also in writing, and was no more to be 
 regarded than if the statute had never V)oen made. W tlie charge 
 rested on parol evidence, and tlie })arty by whom it had been made 
 had used expressions cfpiivalent to what appeared in the iiitonna- 
 tion, all that might have been given in evidence ; but nothing of 
 the sort could here be given in evidence, as all of it was in writing, 
 and the only proper evidence of the writing was the documents 
 containing the matters which had been so committed to writing. 
 The documents were not given in evidence to substantiate the 
 truth of the charge, l)ut merely as to the fact that they had 
 
 (0) Reg. V. Lee, 4 F. & V. i\?>. Sj.r. ( />) I.', r. .Teukiii Williams, 12 <.'o.\, 
 
 Ass. 18(34. C. (J. 11)1.
 
 r)'M) 
 
 Of Evidence. 
 
 [fkjok VI, 
 
 F.vory dciiosi- 
 tion tftkcn hy 
 n inii^-islrato 
 oiikIiI to 1)0 
 returned. 
 
 Proof on trial. 
 
 Deposition 
 before a 
 
 Proof of depo- 
 sition in order 
 to examine 
 upon it. 
 
 Deposition of 
 a person 
 of weak 
 intellect. 
 
 bcoii made, and that tln' prisoner had entered into the icco;,Mii- 
 zaiKM's. {<i) 
 
 ((/) Proof of De^JOHltions on Trvd. 
 
 It i.s the duty of magistrates to return to the coiirt atwliich the 
 prisoner is to bo tried, all depositions that have been taken at all 
 ili(> e.vaminations that have taken place respecting the offence 
 which is to be the subject of the trial. (/•) 
 
 And it is equally the duty of the magistrate to return the de- 
 jiositions of witnesses who are not bound over, (s) 
 
 As to returning depositions taken on behalf of the prisoner. See 
 30 .1- 31 Vict. c. 35, s. 3, noticed ante, p. -513. (0 
 
 By the 11 & 12 Vict. c. 42, s. 17, {u) after it has been proved 
 that the witness is ' dead or so ill as not to be able to travel,' it 
 must be proved, 1st, that ' the deposition was taken in the pre- 
 sence of the person so accused ; ' and 2ndly, ' that he or his 
 counsel or attorney had a full opportunity of cross-examining tlic 
 witness ; ' and then, ' if such deposition purport to be signed by 
 the justice' or justices by or before whom the same purports to 
 liave been taken, the deposition may be read as evidence w^ithout 
 further proof, unless it shall be proved that the deposition was not 
 in fact signed by the justice jjurporting to sigoi the same. 
 
 A deposition taken before a coroner may be j) roved by the 
 coroner, or by any jaerson who can prove the signature of the 
 coroner, that the witness was sworn, that the deposition con- 
 tains the evidence given by the witness, and that the prisoner 
 was present and had an opportunity of cross-examining the wit- 
 ness. The deposition in this case need only contain so much of 
 the evidence as is material, (v) 
 
 Where, before the 11 & 12 Vict. c. 42, it was proposed to prove 
 the deposition of a witness in order to cross-examine her upon it, 
 and neither the magistrate nor his clerk were at the assizes, and 
 the witness denied her mark to the dei^osition ; but a constable, 
 wdio was present before the magistrate when the witness was ex- 
 amined, proved the signature of the magistrate, but was not sure 
 that he saw the witness make her mark to it, though he recol- 
 lected seeing the pen in her hand, and heard her deposition read 
 over to her, and believed the deposition to be the same that 
 was read over to her, and his own deposition immediately followed 
 it ; Coleridge, J., held that the deposition might be read to the 
 witness to examine her upon it. (^'.') 
 
 Upon an indictment for ravishing Sarah Higgins, it appeared 
 that she w^as a person of very weak intellect ; but her deposition 
 
 (Vy) i;. r. Lydane, 8 Cox, C. C. 38. 
 
 (r) Kcx ('. Simons, 6 C. & P. 540. 
 
 (s) ]!cx r. Smith, 2 C. & K. 207. 
 Lord Den man, C. .T. 
 
 (t) Soe 11 & 12 Vict. c. 42, s. 25 ; 7 
 C. & P. 270. 2 C. & K. 845. K. v. 
 Clark, 5 Cox, C. C. 230. Rex v. Fuller, 
 7 C. & P. 269. Vauijlian, J. See Ecg. 
 V. Aniold, 8 C. & P."(>21. 
 
 (u)A)ilr,]\ 511. Ik'lore this Act de- 
 )>ositions might be proved by any one 
 who was present when same wiic taken. 
 
 IJ. V. Pikelsley, 9 C. & P. 124. K. v. 
 AVilshaw, C. & M. 145, but see 2 Hall, 
 P. C. c. 38, p. 284. 
 
 (v) See the 7 Geo. 4, c. 64, s. 4, anU', 
 p. 500, note (/). See England's case, 2 
 Leach, 770, as to proof of depositions 
 befoi-e coroners. 
 
 (»•) Reg. r. Hallett, 9 C. & P. 748. 
 Coleridge, J., said, ' Suppose there was no 
 m;irk at all, why should not a third per- 
 son say that this was the paper that was 
 read over to the witness ? '
 
 CHAP. IV. § III.] DejJositions. 531 
 
 before the magistrate was in tlie usual form, and did not show any- 
 thing as to any inquiry into the competency of the witness in point 
 of intellect ; and when she was called as a witness, she appeared 
 not at all to understand the nature of an oath, and to have no idea 
 of a future state ; npon which Wilde, C. J., observed, 'It would l)e 
 always desirable, where a person of weak intellect is examined be- 
 fore a magistrate in a case of felony, that the magistrate's clerk 
 should take down in the depositions the questions put by the 
 magistrate, and the answers given by the witness as to the witness's 
 capacity to take an oath, (x) 
 
 And since, as in the case of examiuations, it will be intended Parol evidence 
 that the magistrate, according to his duty, took the deposition in ?^ a deposition 
 writing, parol evidence of the information is inadmissible, till it is siWeunleTr" 
 shown that it was not reduced to writing. (?/) Thus where the it be clearly 
 plaintiff had been arrested on a charge of felony and taken before Proved that it 
 a magistrate, who discharged him, and there was no positive hf^ri'tin.r. *^'' 
 evidence whether the examinations of the witnesses had been 
 taken in writing, and it was urged that, as no case had been made 
 out against the plaintiff, it Avas to be presumed that no depositions 
 had been taken in writing ; Jervis, C. J., said, ' The statute 
 positively requires every examination before justices to be taken 
 down in writing. I know this is frequently neglected under the 
 circumstances mentioned, but it is a practice quite illegal and 
 highly improper. I cannot in any case presume that the law has 
 been violated, and therefore without 2Jt>sitive evidence that in 
 this case the examinations have not been taken down, 1 cannot 
 admit parol evidence.' (5^) 
 
 Where on the trial of an action for a malicious prosecution it 
 appeared that the defendant had made a charge against the plain- 
 tiff before a magistrate, the hearing of which was in the first 
 instance adjourned, and on a subsequent occasion the case was 
 heard, and the depositions were gone through, taken down, and tlio 
 plaintiff committed for trial. A magistrate's clerk attended on 
 the first occasion, and took down Avhat the defendant said, but 
 neither the defendant nor the magistrate signed it ; it was objected 
 that parol evidence of what the defendant said on the first occasion 
 was inadmissible, and that the writing must be produced. Cress- 
 well, J., ' I know from the depositions returned to me at the 
 assizes, that in practice, when a case is adjourned, the deimsitions 
 are not regularly reduced to writing under the statute ; and I 
 think that parol evidence is admissible here of wliat was said on 
 the first occasion. If two persons are present on the examination 
 of a witness, and one takes a note of what the witness says, and 
 the other does not, the latter is as competent as the former to prove 
 what lie heard.' (a) 
 
 Where in an action Ibi' malieiuuslv l:i\ing an information before Evidence is 
 
 ndinix.«il>le to 
 
 (.r) h'ci^. V. raiiiti'i', 2 ('. k K. '\]9. confi'S-sion, such as He;,', v. |)inf{loy, 1 C. 
 
 "With all (U'roiciitc, sudi i|ucstioiis .-iiid & K. <')37, "f ciuirsc iiiiythiiijj the prisoiior 
 
 answers arc jncliiniiiary to the swearing; says may lie inserted. V. 8. G. 
 
 of tlic witness, and cannot therefore form (//) Hex r. Kciirsliire, 1 I/cacli, '202. 
 
 any part of the (kponiUon. It nu;;hl be (c) Tarsons v. Urowii, .SC. \ K. "J!>.'>. 
 
 well, however, to make a note of the ((f) .leans r. Wliecdon, 2 M. .t Rob. 
 
 questions and answers cither on another 4R<>. Seethe reporter's note there, .'^ee 
 
 paper, or sejiaratcly from and so as to also Keg. r. (.,'hristopher, 1 Den. C. (', 
 
 form no part of the deposition. In a r>;{<i.
 
 rxplniii or ii'lil 
 to a doposi- 
 tion. 
 
 ( [f Erldana: 
 
 [book VI. 
 
 u ]ii;i!^Msh,iti', tli.'il lie, lli(! ilcfoiidaiit., .•ipprohcntlcd danj^cr to liis 
 life or hodily li.-iini fioiii tlic plaintiff, tlio information of tlio dc- 
 fiMidant, tukt'ii in writing by tlic maffistratc's clerk was put in, 
 after beini,'' proved i)y the clerk, and after it was read tlie counsel 
 for the defendant asked the clerk in cross-examination whether the 
 defendant had not, in addition to what appeared in tlu; informa- 
 tion, stated that, on the occasion deposed to, the plaintiff had used 
 a certain threat ; and the fpiestion was objected to on the ground 
 that it went to explain or add to the written information ; Gaselee, 
 J., as the point was a difficult one and of -frefpient occurrence, 
 consulted the other judges of the Court of Common Pleas, and 
 stated that they all were of opinion that evidence was admissible 
 to prove anything the party liad said as part of his information, 
 beyond what was put in writing, either for the purpose of expla- 
 nation or addition, (b) Upon an indictment for obtaining money 
 by false pretences, a witness was examined for the prosecution, 
 who had been examined before the magistrates, ontheajjplication 
 of the jy^'isoner, touching the present cbarge, and the prisoner's 
 counsel now asked him whetlier, when he was before the magis- 
 trate, he did not say, whilst under cross-exaraination by the 
 prisoner's attorney, that he knew the prisoner was collecting rates 
 after the 2-ith of June. This question was objected to on the 
 ground that the depositions being referred to, contained no note of 
 any such cross-examination. But Erie, J., was of opinion that the 
 question must be allowed. There did appear to have been decisions 
 the other way, but he had always been of opinion that in principle 
 those decisions were wrong, (c) 
 
 (J)) Vcnafia ?'. .Tohnson, 1 JI. & Ttoh. 
 3] 6. See Eowlaml v. Aslibv, R. & ^l. 
 N. P. C. 231 ; Rex r. Harris, R. & U. 
 C. C. R. 338, ante, p. 508, and Rex v. 
 Reed, JI. & M. 403. 
 
 (c) Reg. V. Curtis, 2 C. & K. 763. But 
 see contra, R. v. Thornton, "Warwick 
 Sum. Ass. 1817. Holro}'d, J., Russ. on 
 Crimes, 4th ed. p. 489. Rex v. "Wjdde, 
 6 C. & P. 380. See ante, p. 94, note 
 (;)\ and Rex v. Edmunds, 6 C. & P. 164, 
 ante, p. 487. AVith reference to cases 
 wliere the raagi.strate has not taken the 
 evidence of a witness in writing, Mr. 
 Phillipps obseiTcs, ' If the magistrate 
 has not taken iu writing the information 
 of a witness, it is clear that no proof 
 can be atlmitted after his death of what 
 he said before the magistrate ; or if tlie 
 magistrate took the information in writing 
 but irregularly, as, for instance, if th-' 
 witness was not swora, or the magistrate 
 (lid not subscribe, it is equally clear that 
 after the witness's death parol evidence 
 of his information will not be admissible ; 
 for such evidence would not have been 
 admissible except by virtue of the sta- 
 tute, nor is it admissible since the passing 
 of the statute, the statutory regulations 
 not ha\nng been complied with ; the 
 written information is the primary and 
 best proof of the information, and the 
 irregidarity of that primary evidence is 
 not a sufficient ground for receivintr evi- 
 
 dence of a secondary or inferior natiu'e. ' 
 In this 2iassage (which does not appear in 
 the 7th edition), the observations must 
 be taken to apply to ' an examination 
 taken in the presence of the prisoner ; ' 
 and taking them so to apply, it may 
 admit of considerable ilnubt whether they 
 are well founded. The deposition of a 
 witness is not admissible becatise it is in 
 writing under the statute, but because it 
 is taken in the presence of the prisoner, 
 and he has had an opportunity of cross- 
 examining the witness ; and it is con- 
 ceived tliat at common law the rale is 
 well established, that the testimony of a 
 deceased witness, who has been examined 
 upon oath on a former occasion in a pro- 
 ceeding between the same parties, on the 
 same subject-matter, is admissible in a 
 subsequent proceeiling between the same 
 parties, and may l>e proved by any one 
 who heard the evidence given. And this 
 rule extends to criminal as well as ci\'il 
 proceedings. See «»/<;, p. 354. Now in 
 all criminal prosecutions the Queen is 
 considered as the prosecutrix, both before 
 the magistrate and ou the trial. The 
 parties, therefore, before the magistrate 
 and on the trial are the same, and con- 
 sequently the evidence of a deceased 
 witness examined in the presence of the 
 prisoner before the magistrate might, at 
 common law, be proved by parol on the 
 trial of the prisoner. But the statute
 
 CHAP. lY. § III.] 
 
 Depositions. 
 
 533 
 
 (/i) Depositions before Coroners. 
 
 The 11 & 12 Vict. c. 42, only applies to depo.sitions before Depositions 
 magistrates, (d) The 7 Geo. 4, c. 64, s. 4, regulates depositions 'jefore 
 before coroners, and is not repealed by the 11 c^ 12 Vict. c. 42. oioners. 
 
 The 7 Geo. 4, c. 64, s. 4, enacts that every coroner, upon any 
 inquisition before him taken, whereby any person shall be indicted 
 for manslaughter or murder, or as an accessory before the fact, shall 
 put in writing tJi.e evidence given to the jury before him, or as much 
 thereof as shall be material : and shall have authority to bind by 
 recognizance all such persons as know or declare anything material 
 touching the said manslaughter or murder, or the said offence of 
 being accessory to murder, to appear at the next court of oyer and 
 terminer, or gaol delivery, or superior criminal court of a county 
 palatine, or great sessions, at which the trial is to be, then and 
 there to prosecute or give evidence against the party charged, and 
 every such coroner shall certify and subscribe the same evidence, 
 and all such recognizances, and also the inquisition before him 
 taken, and shall deliver the same to the proper officer of the court 
 in which the trial is to be, before or at the opening of the court. 
 
 There are conflicting authorities upon the question whether a 
 deposition before a coroner is receivable in evidence on the trial of 
 a prisoner when he was not present when the witness was 
 examined, (e) 
 
 Smith, J., refused to admit in evidence the deposition of a 
 witness taken before the coroner where the prisoner was not present 
 at the inquest when the witness was examined. (/) The ob- 
 jection to the admission of a deposition taken by a coroner in the 
 absence of a prisoner is fortified by the 11 & 12 Vict. c. 42, s. 17, 
 expressly requiring the deposition before a magistrate to be taken 
 in the presence of the prisoner, and giving him a full right of 
 cross-examination. 
 
 A marked distinction exists between the situation in which a Distinction 
 
 betwecu tho 
 
 having required the magistrate to put the 
 e\'idence in writing, such writing is the 
 best evidence of what the witness said. 
 It is submitted, liowover, that in case no 
 part oi' the cvidcm-e were taken down, 
 parol evidence would be admissible of 
 what the witness said. Tiie statute has 
 dhected the examination of a prisoner 
 to be taken in writing, and yet if tiiat be 
 not done, jiarol evidence is admissible, 
 because such paiol evidence was admis- 
 sible at common law. Lamlie's ease, 2 
 Leach, 552. Tlie observations of the 
 judges in this case furnish a strong argu- 
 ment by analogy in support of tlie view 
 here contended ibr. It might be furtlier 
 contended that what was said by a wit- 
 ness in the presence of a jirisoner before 
 a magistrate was admissibh' at commnu 
 law, as a statement made in tlie prisoner's 
 presence, to which he not only miglit 
 reply, b\it which lie was called upon ex- 
 pressly to answer. See Kex t'. Edmunds, 
 6 C. & ?. 164, where Tindal, C. J., 
 admitted evidence of what a deceased 
 
 prosecutor swore in the presence of the 
 prisoner on au examination before a 
 jnagistrate for committing the assault, 
 from the etlects of which the deceased 
 died, 'as producing an answer, and like 
 any other conversation.' And see the ob- 
 servations of Parke, B., in Jlelen v. An- 
 drews, ante, p. 486. C S. G. 
 
 (d) See R. r. Hazcll, 8 Vox, C. C. 443. 
 R. V. Clcary, 2 F. & F. 850, whicli eases 
 are no ddubt incorrectly reported. 15. v. 
 Mooney, ".i t'ox, ('. (.'. 411. 
 
 (c) Lord Morley's case, Kel, 55. 
 Thatcher's case, Sir T. Jones, 53. Hrom- 
 wich'scase, 1 Lev. 180, Gilb. Ev. 124. 
 Kex V. Stocklev, 1 East, P. V. c. 5, s. 78. 
 Ihill. N. r. 242. See per Ahlei-son, 15. 
 Reg. r. Au.stin, Dears. C. C 612. 3 T. R. 
 722. Garnett v. Fernind, 6 B. & C. 611. 
 Sitts V. I'.rown, 1> V. & P. 6Ul. 1 k 2 
 Ph. 4; Uiwy, c, 13, .s. 5. 
 
 (/) Rex' V. Rigge, 4 F. & F. 1085. 
 This it is submitted wnsa correct derision. 
 See 1 Taylor, Ev. 451i, 4th ed. 2 Stark. 
 Ev. 385. 2 I'liil. Ev. 75.
 
 534 
 
 ]ioHiti(>n of a 
 priHoiitT lief<i 
 :i ciiniiiur am 
 !i iiKv^iHtnito 
 
 Of Evidence. 
 
 [bodk 
 
 C VI, 
 
 jirisoncr stands when In- is Ixfoio a ma<(istrato on a cliargo of 
 i'flony or niisdenicanor, and when Ik; is present during the time a 
 coroner is hohling an inquest ; an<l this distinction seems t<j liave 
 lieen actctl upitn in the following case. Upon an indictment i'ov 
 murder it was |)roved that a witn(!ss who had l)een examined 
 bi'fore the coroner was insane at the time of the trial, and liad Ijeen 
 so for some time previously ; part of his deposition had Ijeen taken 
 in the absence of tlic prisoner, and j)art in his presence, but the 
 whole was read over in his presence ; and it was proposed to give 
 this deposition in evidence, and 1 Pk'dl. Ev. 309, 373, referred to, 
 in order to show that the deposition was admissible where the 
 witness had become insane ; and Rex v. Smitk, {<j) to show that 
 reading the whole over in the presence of the prisoner rendered it 
 admissible. Park, J. A. J., ' There is one positive objection, that 
 the witness might be insane when he was examined before the 
 coroner. Secondly, the 7 Geo. 4, c. G4, makes a strong distinction 
 between magistrates and coroners. There is a charge made before 
 a magistrate ; but I cannot call it a charge before a coroner. In 
 Hex V. Smith, the deposition was taken in a common felony, and 
 there the question was, whether a deposition taken on one charge 
 could be evidence on another. I will not receive this deposition. 
 I think it safer not to do so.' {h) 
 
 Examinatiou 
 of witnesses 
 before trial. 
 
 {[) Where Witness Examined before Trial. 
 
 By 30 & 31 Vict. c. 35, s. 6, and whereas by the 11 & 12 Vict, 
 c. 42, s. 17, it is permitted under certain circumstances to read in 
 evidence on the ti-ial of an accused person the deposition taken in 
 accordance with the provisions of the said Act, of a witness who 
 is dead, or so ill as to be unable to travel. And whereas it 
 may happen that a person dangerously ill, and unable to travel, 
 may be able to give material and important information relating 
 to an indictable offence, or to a person accused thereof, and it may 
 not be practicable or permissible to take, in accordance with the 
 provisions of the said Act, the examination or deposition of the 
 person so being ill, so as to make the same available as evidence 
 in the event of his or her death before the trial of the accused 
 person, and it is desirable in the interest of truth and justice that 
 means should be provided for perpetuating such testimony, and for 
 rendering the same available in the event of the death of the 
 person giving the same : ' Therefore, whenever it shall be made to 
 appear to the satisfaction of any justice of the peace that any 
 person dangerously ill, and in the opinion of some registered 
 medical practitioner not likely to recover from such illness, is able 
 
 (f/) Ante, p. 5'26. 
 
 ()i) Kcx V. Charles Wall, Worcester 
 Sum. Ass. 1830, SISS. C. S. G. The 
 distiiiotion taken by the learned jiulge 
 seems to (.lesor\ e much consideration. The 
 grovind on which a deposition before a 
 magistrate is admissible is that the pri- 
 soner, being there to answer a charge, 
 has the ri(iht to cross-examine the wit- 
 nesses. In many cases before coroners, 
 even if the prisoner be present, there is 
 
 no charge, and perhaps no suspicion, 
 against him, and it -may be doubted 
 whether in strictness under any ciicum- 
 stances he has a riijht to cross-examine 
 the witnesses ; and if there were no charge 
 in fact made against him, his interference 
 would be an unwarranted inten-uption of 
 the proceedings. See the observations of 
 Parke, P... in Melen r. .;Vndrews, ante, p. 
 4S6. C. S. G.
 
 CTIAP. IV. 5 III.] Depo4finu.<^. 51 
 
 and willing to give material information relating to any indictable 
 offence, or relating to any person accused of any such offence, and 
 it shall not be practicable for any justice or justices of the peace 
 to take an examination or deposition in accordance with the pro- 
 visions of the said Act of the person so being ill, it shall be lawful 
 for the said justice to take in writing the statement on oath or 
 affirmation of such person so being ill, and such justice shall there- 
 upon subscribe the same, and shall add thereto by way of caption 
 a statement of his reason for taking the same, and of the day and 
 place when and where the same was taken, and of the names of 
 the persons (if any) present at the taking thereof, and, if the same 
 shall relate to any indictable offence for which any accused person 
 is already committed or bailed to appear for trial, sliall transmit 
 the same with the said addition to the proper officer of the Court 
 for trial at which such accused person shall have been so com- 
 mitted or bailed ; and in all other cases he shall transmit the same 
 to the clerk of the peace of the county, division, city, or borough, 
 in which he shall have taken the same, who is hereby required to 
 preserve the same, and file it of record ; and if afterwards upon 
 the trial of any offender or offence to which the same may relate, 
 the person who made the same statement shall be proved to be 
 dead, or if it shall be proved that there is no reasonable probability 
 that such person will ever be able to travel or to give evidence, it 
 shall be lawful to read such statement in evidence, either for 
 or against the accused, without further proof thereof, if the same 
 purports to be signed by the justice by or before whom it purports to 
 be taken, and provided it be proved to the satisfaction of the Court 
 that reasonable notice of the intention to take such statement has 
 been served upon the person (whether prosecutor or accused) 
 against whom it is proposed to be read in evidence, and that such 
 person or his counsel or attorney, had or might have had, if he had 
 chosen to be present, full opportunity of cross-examining the 
 deceased person who made the same.' 
 
 By sec. 7, whenever a prisoner in actual custody shall have 
 served or shall have received notice of an intention to take such 
 statement as herein-before mentioned, the judge or justice of the 
 peace by whom the prisoner was committed, or the visiting justices 
 of tfie prison 'in which he is confined, may, by an order in writing, 
 direct the gaoler having the custody of the prisoner to convoy him 
 to the place mentioned in the said notice for the purpose of being 
 present at the taking of the statement ; and such gaoler shall 
 convey the prisoner accordingly, and the expenses of such con- 
 veyance shall be paid out of the funds applicable to the other 
 expenses of the prison from which the prisoner shall have been 
 conveyed. 
 
 An order for the examination of a witness resident in England, An ..nler for 
 but unable from illness to attend the trial, cannot be made by the c.^=»".';"''t'>'» 
 Court of Queen's Jjcnch in a criminal prosecution, eitlu-r by the cannot Ikj 
 common law authority of the Court, or under the 1 Will, t, grant«d in a 
 
 c. 22. U) "'"'"'^ 
 
 The Court, upon application of the defendant, post])t)ned the 
 trial of an information for a misdemeanor, upon the dei'endant'.s 
 
 ij) Keg. r. Upton, St. Leoiiiud'.s, 10 1 Dowl. 520. 
 Q. B. 827, and see Kex v. Lady Briscoe, 
 
 criminal casc.
 
 r/AG 
 
 Of Evidence. 
 
 [book vj. 
 
 Doposltious 
 iu Iiulia. 
 
 In cases of 
 offences coni- 
 luitteil by 
 public servants 
 abroad. 
 
 !MercI»ant 
 Sliipping Act, 
 17 ct IS Vict. 
 c. 104. 
 
 Depositions 
 to be received 
 in evidence 
 when witness 
 cannot be 
 produced. 
 
 consent iii[,f hy \vritin^' luider liis own hand to the examination 
 upon interrogatories of a witness for tlie Crown. (Ic) 
 
 (./') Ojfciices committed Abroad — MercJt/mt Hhvpping Act. 
 
 Where ;iii iiidietnient or infurniation is exhibited in the Queen's 
 Bench for an oflbncc connnitted in India, tlie depositions of the 
 witnesses may be obtained under the provisions of the 13 Geo. 3, 
 c. G3, s. 40 and s. 44. Tiiis statute enacts that tlie Court may 
 award a writ of mandamus to tlie judges of the courts in India, as 
 the case may require, for the examination of witnesses, who are to 
 be examined publicly in the court, upon oath administered ac- 
 cording to the form of their several religions ; and these deposi- 
 tions duly taken and returned, in the form prescribed by tlie Act, 
 are to be allowed, and deemed as good and competent evidence, 
 as if the witnesses had been sw^orn at the trial, and examined 
 viva voce. (I) 
 
 In the case of a prosecution for an offence committed abroad 
 by any person employed in the public service, the depositions of 
 witnesses resident abroad may be obtained iu the way pointed out 
 by the 42 Geo. 3, c. 8.5. 
 
 By the 17 & 18 Vict. c. 104, s. 2(37, all offences against pro- 
 perty or person committed in or at any place either ashore or 
 afloat out of Her Majesty's dominions, by any master, seaman, or 
 apprentice, who is or within three months previously has been 
 employed in any British ship, are to be deemed offences of the 
 same nature, and are to be tried in the same manner and by the 
 same courts as if such offences had been committed within the 
 jurisdiction of the Admiralty of England. See vol. 1, p. 17. 
 
 By sec. 270, ' whenever in the course of an)- legal proceedings 
 instituted in any part of Her Majesty's dominions before any 
 judge or magistrate, or before any person authorized by law or 
 by consent of parties to receive evidence, the testimony of any 
 witness is required in relation to the subject-matter of such pro- 
 ceeding, then upon due proof, if such proceeding is instituted iu 
 the United Kingdom, that such witness cannot be found iu that 
 kingdom, (m) or if in any British possession, that .he canncft be 
 tound in the same possession, any deposition that such witness 
 may have previously made on oath in relation to the same subject- 
 matter before any justice or magistrate iu Her Majesty's dominions, 
 or any British consular officer elsewhere, shall be admissible in 
 evidence subject to the following restrictions ; (that is to say), 
 
 (1.) If such deposition was made in the United Kingdom, it 
 shall not be admissible in any proceeding instituted in 
 the United Kingdom : 
 
 (1-) E. r. ]\rorplu'\v, 2 J[. & S. 002. 
 See Anon. 2 Chit. 109. 
 
 (/) See Ueg. V. Douglas, 1 C. & K. OTO. 
 Loi-d Deumau, C. J. 
 
 {711) AVitnesscs, whose evidence had 
 been taken abroad by the British Vice 
 Consul under this section, were officers of 
 a British sailing vessel, which traded 
 between Fayal and Boston, and which 
 
 was stated by an officer of the board of 
 trade, from examination of official re- 
 cords, never to have been iu this country, 
 held that it was sufficiently proved that 
 the witnesses were not in the United 
 Kingdom, and the depositions were 
 accordingly admitted iu evidence. R. v. 
 Connin-i, 11 Cox. C. C. 134. K. r. 
 Anderson, 11 Co.x, C. C. 154.
 
 CHAP. IV. v^ III.] 
 
 Depositions. 
 
 537 
 
 (2.) If such a deposition was made in any British possession, 
 
 it shall not be admissible in any proceeding instituted 
 
 in the same British possession : 
 (3.) If the proceeding is criminal it shall not be admissible 
 
 unless it was made in the presence of the person 
 
 accused : 
 every deposition so made as aforesaid shall be authenticated by 
 the signature of the judge, magistrate, or consular officer, before 
 whom the same is made ; and such judge, magistrate, or consular 
 officer shall, when the same is taken in a criminal matter, certify, 
 if the fact is so, and that the accused was present at the taking 
 thereof, but it shall not be necessary in any case to prove the 
 signature or official character of the person appearing to have 
 signed any such deposition ; and in any criminal proceeding such 
 certificate as aforesaid sliall, unless the contrary is proved, be suffi- 
 cient evidence of the accused having been present in manner there- 
 by certified ; but nothing herein contained shall affect any case in 
 which depositions taken in any proceeding are rendered admissible 
 in evidence by any Act of Parliament, or by any Act or Ordinance 
 of the legislature of any colony, so far as regards such colony, or to 
 interfere with the power of any colonial legislature to make such 
 depositions admissible in evidence, or to interfere with the practice 
 of any court in which depositions not authenticated as hereinbefore 
 mentioned are admissible.' 
 
 The prisoner was indicted for larceny alleged to have been com- 
 mitted in February 1852, on board an English merchant vessel, 
 lying in the Bosphorus, of which the prisoner was mate and the 
 prosecutor captain. The principal evidence against the prisoner 
 consisted of the depositions of witnesses still abroad ; and the cap- 
 tain proved that he made a charge against the prisoner of stealing 
 his property before the British Consul at Constantinople. Each 
 witness was sworn and examined by the Consul. Each witness 
 was asked if he could sjDcak English, and if he could not he was 
 sworn in another language; some were sworn in Greek, which the 
 captain did not understand. They were all sworn on the same 
 book, which was an English bible. The captain did not know 
 the religion of any of the witnesses sworn in the foreign language. 
 The Consul himself took the examinations, and translated each 
 question and answer as it was given, and wrote the dejiositions in 
 English ; and when the whole of each deposition was taken down 
 it was read to the prisoner, and he was asked what he had to say ; 
 and all he said was that he was not guilty. The captain could 
 not be answerable whether the prisoner was asked whether he would 
 ask any witness any question. He could not ask (|uestions of tlic 
 witnesses, because he did not understand the language, and he did 
 not tell the Consul anything he wished to be askeil of the witnesses. 
 The depositions had been transmitted to the Board of Trade by the 
 Consul, and by that Board to the attorney for the prosecution, who 
 produced them, and the captain proved his signature to his infor- 
 mation and examination, which were amongst the depositions. The 
 depositions bore the official seal of the English Consul for Con.stan- 
 tinople, and were certified to have been taken in the presence of 
 the prisoner. It was objected, 1, that there was no proof that the 
 witnesses were duly sworn ; 2, that there ought to have been au 
 
 Depositions 
 t;iken by the 
 IJritish Consul 
 at Constanti- 
 nople. 
 
 Questions as 
 to swearing 
 the witnesses, 
 translating 
 their state- 
 ments, giving 
 the prisoner an 
 opportunity 
 to cross- 
 examine, and 
 striking out 
 lie.ars.iy from 
 the depo- 
 sitions.
 
 niJS Of Evidence. [book vt. 
 
 intcM'pri'ter sworn, niul tliat the ( ■onsul could not act as interprctci' 
 as lie luul done, or the depositions ought to liuvc been returned in 
 the hin<,nuigc of the witnesses ; .'}, that the depositions, not being 
 in the hinguagc of the witnesses, were not in fact their depositions ; 
 4, that the j)risoner was not proved to have liad a fair ojjportunity 
 of cross-e.\aininati(jii. For tiie Crown it was contended that the 
 Merchant Siiii)ping Act, 7 & <S Vict. c. 112, s. of), made depositions 
 tai<en before a Consul abroad and certifiCil under his official seal 
 to be the depositions, and that they were taken in the presence of 
 the accused, admissible in courts of criminal jurisdiction, ' in like 
 manner as depositions taken before any justice of the peace in 
 England,' {a) and that by the Mercantile Marine Act, 13 & 14 Vict, 
 c. J)3, s. 115, depositions of any witnesses taken before any consular 
 officer, in any criminal proceeding in the presence of the accused, 
 and certified under bis official seal to have been so taken, shall be 
 admissible ; and ' any deposition purporting to be so certified shall 
 be deemed to have been so takei] and certified as aforesaid, unless 
 the contrary is proved.' (o) That the deposition so certified is 
 the deposition as it stands on the face of the documents. The 
 7 & y Vict. c. 113, s. 1, was also cited. It was replied that the 
 13 & 14 Vict. c. 93, s. 115, was answered, because it was proved 
 that the depositions were not properly taken ; and that the 7 & S 
 Vict. c. 112, s. 59, only made the depositions receivable whore they 
 would have been receivable if taken in England, and that these de- 
 positions would not have been so receivable. Greaves, Q. C, con- 
 sulted Wightmau, J., and they agreed that the proper course would 
 be to admit the depositions, but to reserve the points. The depo- 
 sitions were then put in ; but on examination they were found to 
 contain a great deal of hearsay evidence. It was then objected 
 that they were inadmissible on this ground ; as it was impossible to 
 separate the good and bad evidence, and the statute had made the 
 depositions evidence, and there was no power to strike out any part 
 of them. Greaves, Q. C, was of opinion that he might run his pen 
 through all the objectionable parts of the depositions, (/>) and direct 
 the officer to read the remainder, {q) 
 
 («) This Act is repealed by the 17 & 18 for the prosecution that it was very 
 
 Vict. c. 120. difficult to inesume that such a persou 
 
 (o) This Act is <ilso repealed by the had properly administered the oath or 
 
 17 & 18 Vict. c. 120. given the prisoner a proper opportuuity 
 
 (yy) Sec Small r. Nairne, 13Q. B. 840. of cross-examination; and, thereupon, 
 
 Hutchinson r. Bernard, 2 M, & Rob. 1 the prosecution was abandoned. AVight- 
 
 Steinkeller v. Newton, 9 C. & P. 313. man, .T., thought that as the witnesses 
 
 (q) Keg. V. Russell, MSS. C. S. G., S. C. had taken the oath without objection, it 
 
 6 C'o.x, (.'. C. 60. On attempting to strike might perhaps be presumed that they 
 
 out the objectionable parts, it appeared so were properly sworn; but on the other 
 
 clear that the depositions had been taken points he entertained grave doubts, 
 
 b}' a person very little conversant with Greaves, Q. C, was strongly inclinetl to 
 
 law, tliat Greaves, Q. C, told the counsel think that all the objections were good.
 
 539 
 
 CHAPTER THE m^TH. 
 
 OF WITNESSES. — WHAT FACTS WITNESSES MAY DISCLOSE, AND WHAT 
 ARE PRIVILEGED COMMUNICATIONS, p. 539. — HOW AVITNESSES 
 ARE TO BE EXAMINED, p. 5o7. — HOW THE CREDIT OF AVITNESSES 
 MAY BE IMPEACHED, p. 572. — HOW MANY WITNESSES ARE SUFFI- 
 CIENT, p. 594. — HOW THE ATTENDANCE OF WITNESSES IS TO BE 
 COMPELLED AND REMUNERATED, p. 595. — OF ACCOMPLICES, p. 
 600. — AND WHAT WITNESSES ARE COMPETENT TO GIVE EVI- 
 DENCE, p. 611. 
 
 Sec I. 
 
 Of Privileged Communications, and otliev Matters wliicJi a Wit- 
 oiess may not Disclose. 
 
 A WITNESS is to be sworn to speak the tnitli, the tvliole truth, 
 aud nothing but the truth. But this form of oath, absohite as it 
 seems, must be taken with an impUed reservation, that the witness 
 is not to disclose any facts within his knowledge, which, by the 
 law of the land, founded on considerations of justice, and of public 
 policy, he is forbidden to make known. Of such a nature are 
 professional communications between a client and his solicitor, 
 or counsel, and matters connected with the government of the 
 country, (a) 
 
 The law attaches so sacred an inviolability to communications 
 between a client and his legal advisers, that it will neither oblige 
 nor suffer persons so emi^loyed to reveal any facts confidentially 
 disclosed to them at any period of time, neither after their employ- 
 ment has ceased by dismissal or otherwise, nor after the cause 
 in which they were engagetl is entirely concluded, (b) The privi- 
 lege of not being examined on such subjects is the privilege of the 
 client, and not of the solicitor or counsel ; (c) and it never cea.sos. 
 ' It is not sufficient,' said Mr. J. Buller, (d) ' to say that the cause 
 
 («) See Spiirk v. Middletoii, 12 Yin. 
 Abr. Ev. B. a, 4, p. 38. 1 Keb. 60;'). 
 
 {h) Lord Say ami Scale's caso, 10 Mod. 
 41. Wilson r. Hastall, 4 Term Kep. 753, 
 ill the judgincut of Buller, J. Sloinan v. 
 Heme, 2 Esp. N. P. C. 61U".. Ue.x v. 
 Withers, 2 (.'anii)b. 578. Parkhur.st v. 
 Lowten, 2 Swaiist. U»4, 221. Richards 
 V. Jackson, 18 Yes. 471. 
 
 (r) 10 Mod. 41. Bull. N. P. 281. liut 
 if the client waive liis privilege, the wit- 
 ness may be e.xamincd. Jlerle v. ilore, 
 K. & M. N. P. C. 390. But he is not 
 considered as waiving it by ealliiif,' his 
 .solicitor as a witness. 1 I'liill. Kv. 163, 
 citing Waldron v. Ward, StyL 441*. Yail- 
 
 hmt r. Dodcmead, 2 Atk. 524. 
 
 ((/) 4 T. R. 759. 'The first duty of a 
 solicitor i.s to keep the .srcrets of his cli- 
 ents,' per Ga-selee, J. Taylor t'. Black- 
 low, 3 B. N. C. 235. He "ought, there- 
 fore, ' to consider his lips si-aled with a 
 sacred silem.e ' as to all contidcutial coni- 
 niunications, per Tindal, C. J., ibid. 
 And SCO Petrie's ca.se and ^ladam du 
 Barre's ea.se, <ited 5 T. K. 75(3. A 
 solicitor, therefore, who without his cli- 
 ent's consent discloses a confidential 
 communication, is 'guilty of a gross 
 bnaeh of a great moml duty,' per 
 Vaughan, J., Taylor r. Blaeklow, and 
 is liable to lui action for any injury that 
 
 Privileged 
 
 communica- 
 
 tious. 
 
 Between client 
 and solicitor, 
 or counsel.
 
 540 
 
 lliilu coiiliiioil 
 to lc;;iil uj- 
 vi.sore. 
 
 [f I'Jvidcnce. 
 
 [book VI, 
 
 is ;it ;ni cimI ; tlu; iiKJutli of sucli a person is sliut for ever.' And it 
 niakts no dillcrence that the clif.iit is not in any shape party to the 
 cause before the court, (e) 
 
 Tlic privilege is strictly conlined to communications made to 
 coun.sel, solicitors, and attorneys. (/) No others, however confiden- 
 tial, or whatever be the relation or employment of the party en- 
 trusted, are privileged. 'riierefore all other ]>rofe3sional persons, 
 whether physicians, surgeon.s, or clergymen, are bound to disclose 
 the matters confided to them, {(j) Thus where the prisoner, being 
 a Papist, had made a confession before a Prote.staut clergyman of 
 the crime for which he was indicted, that confession was per- 
 mitted by Buller, J., to be given in evidence on the trial, and the 
 jirisoiier was convicted and executed, (h) So a confession to a 
 Popish priest has been held not to be privileged, (i) So a 
 
 may arise IVoiii siirli disclosme. Il)iil. 
 Or he may be punislieil by the court to 
 whieli lie belongs, admitted nrgueiulo. 
 Ibid. Two learned bai'oiis, however, in 
 Jlibberd v. Kniglit, '1 Exc. 11. 11, expressed 
 an o])inioii that if an attorney chose volun- 
 iari/i/ to disrlose a conKdential commu- 
 nication, the Court would receive tlie 
 evidence. These observations were merely 
 obiter (Uda, and seem to have arisen 
 from an erroneous impression of the facts 
 in Marston v. Downes, 6 C. & P. 381. 1 
 A. & E. :J1. The former of these reports 
 correctly states what occurred on the 
 trial, and certainly the attorney did not 
 volunteer any statement of the contents 
 of any deed ; and upon the observations 
 in Hibbcrd r. Knight being cited in Xew- 
 ton V. Chaplin, 10 C. B. 356, Maule, J., 
 said, ' I jn-esume that the learned barons 
 did not mean that tlie attorney may in 
 all cases betray liis own client.' The 
 matter, however, seems to be set at rest 
 by Cleave v. Jones, 7 Exch. 421, as it 
 was there held that an attorney could not 
 give in e\idence on his own behalf a 
 confidential communication in an action 
 against his client. In Volant r. Sover, 
 13 C. B. 23], Jervi.s, C. J., raised a doubt 
 whether the 14 & 15 Vict. c. 99, had not 
 taken away the ground of objecting to 
 the production of a document on the 
 ground of its having been received pro- 
 fessionally ; but llaule, J., said that 'The 
 right, which a client has always enjoyed, 
 of being ]>rotected from a breach of pro- 
 fessional confidence, remains the same. I 
 think the protection still continues unim- 
 paired, so far as regards the proliibitiou 
 to the attorney to give evidence of the 
 contents of. or to produce documents be- 
 longing to, his client.' 
 
 (e) Hex r. Withers, 2 Campb. 578. 
 
 (/) 4 T. E. 758. Kex f. Duchess of 
 Kingston, 11 St. Tr. 246. 
 
 ((/) Ibid. 
 
 (h) Rex r. Sparkes, cited in Du Barre 
 r. Livette, Peake K. 78, in which latter 
 case Lord Kenyou said he should have 
 paused before he admitted such evidence. 
 But the point, that confessions to clergy- 
 men are not privileged, has been fully 
 
 established by tlie decision in Rex r. 
 Gilham, ante, p. 456. In Broad r. Pitt, 
 3 C. & P. 518, Best, C. J., after recog- 
 nising this decision, .said, 'I, for one, will 
 never compel a clergyman to disclose com- 
 munications made to him by a prisoner, 
 but if he chooses to disclose them I shall 
 receive them iu evidence.' In Reg. v. 
 Grifiin, 6 Co.-c, C. C. 219, the chaplain 
 of a workhouse was called to prove cer- 
 tain conversations he had had with the 
 prisoner as to injuries she had inflicted on 
 her child, for whose murder she was being 
 tried, when he visited her as her spiritual 
 adviser ; Aldersou, B., ' I think these 
 conversations ought not to be given in 
 evidence. The principle upon which an 
 attorney is prevented from divulging what 
 passes with his client is because, without 
 an unfettered means of communication, 
 the client would not have any proper legal 
 means of assistance. The same principle 
 applies to a i^erson, depi'ived of whose ad- 
 vice the prisoner would not have proper 
 spiritual assistance. I do not lay this 
 down as an absolute rule, but I think such 
 e\-idence ought not to be given.' No case 
 was cited. 
 
 (0 Butler r. Moore, M'Xall. Ev. 253, 
 as cited 1 Phill. Ev. 165. In Reg. r. 
 Hay, 2 F. & F. 4, Hill, J., committed a 
 Roman Catholic priest for refusing to 
 state from whom he received a stolen 
 watch, which he stated he had received 
 in connexion with the confessional. But 
 the priest was not asked to disclose any- 
 thing that had been stated to him in the 
 confessional, and therefore no question 
 arose as to that. "Where a witness had 
 taken an oath to a prisoner that he would 
 not reveal what the prisoner should tell 
 him, Patteson, J., saiil, 'These oaths arc 
 very wrong and wicked, but still they 
 are not binding, and every person, except 
 coimsel and attorneys, is compellable to 
 reveal what they may have heard ; and 
 counsel and attorneys are only excepted 
 liecause it is absolutely necessary, for the 
 sake of their clients, that communica- 
 tions to them should be protected ; ' and 
 admitted the confession. Rex r. Shaw, 
 6 C. & P. 372.
 
 CHAP. V. § I.] Privileged Communications. 
 
 banker, {j) steward, servant, or private friend, is bound to disclose 
 a communication, bowever confidential. (/•) And where a clerk to 
 the commissioners of the property-tax was required to prove the de- 
 fendant to be a collector, and he objected, because he had taken an 
 oath of office not to disclose what he should learn as clerk concerning 
 the property-tax, except with the consent of the commissioners, or 
 by force of an Act of Parliament, it was held that he was bound to 
 give his testimony, and that the evidence which a witness was called 
 upon to give in a court of justice was to be considered as an im- 
 plied exception in the Act. (/-) An arbitrator may be called to 
 prove what matters were claimed before him on a reference: (iii) he 
 cannot, however, be admitted or called on to give evidence of any 
 concessions made by one part}'' during the reference for making his 
 peace and getting rid of the suit, although, as to regular admissions 
 by the parties, there is no objection to his testimony. (71.) A person 
 who acts as an interpreter, (0) or agent, (p) between the solicitor 
 and his client, or the solicitor's clerk, {q) cannot be called on to 
 reveal a confidential communication ; for they stand precisely in the 
 same situation as the solicitor himself, and are considered ^as his 
 organs. 
 
 It has been held that a person who is consulted confidentially 
 on the supposition of his being a solicitor, when in fact he is not 
 one, is compellable to answer, (r) And propositions which the 
 solicitor of one party has been professionally entrusted to make to 
 another party may be proved by another witness who was present 
 when they were delivered, (s') And a solicitor may be called 
 upon by a plaintiff to state a conversation in which the defendant 
 proposed a compromise to the plaintifif,althougIi the witness attended 
 on that occasion as solicitor for the defendant, {f) So where the 
 plaintiff and defendant went together to the plaintiff's attorney's 
 office, and had a conversation in the presence of the attorney's clerk, 
 it was held that this conversation was not a privileged communica- 
 tion, but might be proved by the clerk, and that a letter written by 
 the clerk in consequence of instructions given by the defendant in 
 the course of that interview was admissible, as that was an act 
 done, {u) So Avhere an act is done in pursuance of a bargain be- 
 tween two parties and in the presence of the solicitors of each of 
 them, the communication made by one party to his solicitor, re- 
 lating to that act in the presence of the other party and his solicitor 
 is not privileged. The defendant, in the presence of his solicitor, 
 
 541 
 
 (/) Lloyd V. Froshfield, 2 C. & P. 329. 
 
 (k) Valliant v. Dodcmcail, 2 Atk. r.24. 
 Lord Falmoutli r. Jloss, 11 Price, -loS. 
 
 (l) Leo V. liirrell, 3 t'aiupb. 337. 
 
 (w)) Martin r. Tliornton, 4 E.sp. 181, 
 by Lord Alvanley. Duke of Buccloucli 
 V. Metropolitan Hoard of Works, 41 
 L. J. i';x. 137. 
 
 (?() Slack V. IJucliannan, Penke N. P. C. 
 6. Westlake v. (.'oilard, lUill. N. P. 236. 
 Martin v. Thornton, 4 Esp. 181. Bull. 
 N. P. 284. 
 
 {o) Du Barre r. Livettc, Peakc X. P. C. 
 78, S. C. 4 T. R. 756. 
 
 {p) Parkins v. Hawkshaw, 2 Stark. 
 239. 
 
 (q) Taylor v. Forster, 2 C. & P. 195. 
 See Webb v. Smith, 1 C. & P. 337. 
 
 Arbitrator. 
 
 Interpreter. 
 
 Agent. 
 
 Clerk. 
 
 Person con- 
 sulted as an 
 attorney, not 
 being one. 
 
 Communica- 
 tions in the 
 presence of 
 both parties. 
 
 (r) Fountain v. Younj,', 6 Ksp. 113 ; 
 scd quccir, whether this would bo so 
 whi'ic the client has acted bond Jitk nud 
 without ni'fjflifjcnco. 
 
 (.<) Gainsforii v. Grammar, 2 Campb. 10. 
 
 (t) Gridith v. Davi.s, 5 H. & Ad. 502. 
 And jH-r I'arke, J., 'This is not a confi- 
 dential disi losurc, but an open commu- 
 nication from one adversary to anotlier, 
 witnessed by tlic attorney of one party. 
 In Gainsfordr. Grammar, the Lord Chief 
 Justice might ]iro])crIy reject the attor- 
 ney's evidence of what his client said to 
 him, but not his statement of what he 
 liimself aftorwanls said to the oppo.sit^ 
 party.' 
 
 ((/) Shore v. Bedford, 5 .M. & G. 271.
 
 542 Of Evidence. lIjook vi. 
 
 ;in(l one Clark and his solicitor, Vallanco, sif,mo(l a nf)t(;, and it was 
 iieid tliat N'allancc inij,dit ])r()V(; that the note was given by tiui de- 
 fondant to ('lark in considoration of his withdrawing all opf)osition 
 to the defendant's passing his last examination as a bankrupt. ('/;) 
 Sdlicitiir not And conunuiiications made to a person, ])y profession a solicitor, 
 consultcil :us ],,„( j^^,^ employed as such in the particular l)usiness winch is the 
 subject of imiuiry, are not privileged, though they may have been 
 matte contidentially. (./) 
 Whore two Where two parties employ the same solicitor, a communication 
 
 i.ariiis em- by ouG to him iu his common capacity is not privileged, but may be 
 s'oHcitor "^""^ ^^^^'^ ^y *^^^ other, (/y) And where a party employs a solicitor 
 V. ho is also employed by the other side, the privilege is confined to 
 such communications as are clearly made to him in the character of 
 liis own solicitoi'. (c) 
 What sort of If iinw remains to bc considered what sort of communications 
 
 ronmiuiiica- uuulc to a solicitor or counsel by his client are entitled to 
 soMdtcM- Ind" protection. A very eminent writer on the Law of Evidence (a) 
 client arc [iri- has laid it down, that the privilege of the client is not confined to 
 vilcgc.l. cases only where he has employed the solicitor in a suit or cause, 
 
 but extends to all such communications as are made by him to the 
 solicitor iu his professional character and with reference to profes- 
 sional business. And this opinion has been confirmed by a case {h) 
 where it was held that an attorney, to whom an application had 
 been made to draw an assignment of goods, wdiichhe declined to do, 
 could not be allowed to disclose that circumstance, a question 
 having arisen whether an assignment subsequently drawn by another 
 attorney, was fraudulent. And in that case Richardson, J., said, 
 that if an attorney were to bc consulted on the title to an estate, 
 he would not be at liberty to disclose any information thus com- 
 municated to him to the prejudice of his client. And Sir J. 
 Leach, V. C. in Walker v. ^¥iLd7)lan, (c) considered the protection 
 to extend to every communication made by the client to his coun- 
 sel or attorney or solicitor for professional purposes. (fZ) And al- 
 
 (w) Weeks r. Argent, 16 M. <fc W.817. brought him Tvithin the rale ; and that 
 
 {x) W^ilsonr. Rastall, 4T. R. 753, 760, here he was acting as a scrivener only, 
 
 and see posty p. 552. In a trial at Nisi Lord Abinger, C. B., said, ' As to the 
 
 Prius at W^estniinstcr, an attorney who point of this doeument being brouglit to 
 
 luid drawn an agi'eement between a slierifl' him in the character of a scrivener. Lord 
 
 and liis under-slieriif, being prodnccd Nottingham laid it down that lie wonld 
 
 to prove a corrupt agreement between not compel a scrivener to disclose the 
 
 them, was not compelled to discover the commnnications made to him.' Harvey 
 
 matter, and per Holt, C. J., it seems to r. Clayton, 2 Swanst. 221 n. 
 
 be the same law of a scrivener ; and he (y) Bangh r. C'radocke, 1 M. & Rob. 
 
 cited a case where upon a covenant to 182, Patteson, J. Cleve v. Powell, 1 M. & 
 
 conveyas counsel shall advise, f/co«5i7/K;/i Rob. 228, Lord Denman, C. J., sajnng, 
 
 non dciUt adrisamcntum being pleaded, 'either party has a right to the dis- 
 
 ronveyances made by the advice of a closure.' 
 
 scrivener being tendered and refused, was (c) Peny r. Smith. 9 JL & W. 681, 
 
 allowed to lie good evidence upon this per Parke, B. ; in which case it was lield 
 
 issue ; for he is a counsel to a man with that the same attorney having been ein- 
 
 whoni he will advise, if lie bc instructed ployed upon the sale of an estate by the 
 
 and educated iu the way of ]n-actice, vendor and purchaser, a communication 
 
 otherwise of a gentleman, par.soii, &c,, from the purchaser to the attorney, ask- 
 
 Anonynious Skinn. 404. And in Tnr- iug him tor time to pay the purcha.se 
 
 quaTul J'. Knight, 2 ;M. k W. 1>S, it ap- money, was not privileged. See Griffith 
 
 peared that Knight had applied to an r. Davies, per Parke, J., supro, note (/). 
 
 attorney to procure him a loan of money, (a) Phill. Ev. Tth ed. 143. 
 
 and it was contended tliat where an at- (b) Cromack f. Heathcotc, 2 B. & B. 4. 
 
 torney was employed to raise money, (c) 6 Madd. 47. 
 
 that was not sucli an employment as (rf) And from the cases of Brard v.
 
 CHAP. V. § I.] Privileged Communications. 
 
 though Lord Teuterden, C. J., on several occasions, both before and 
 since the case of Cromack v. Heathcote, expressed at Nisi Prius 
 a contrary opinion, (e) yet it is now clearly settled that the 
 privilege of professional confidence is not limited to cases in which 
 a suit is in contemplation, (/) but that the client's privilege ex- 
 tends much beyond communications in respect of a suit, {g) Thus, 
 where it Avas proposed to ask an attorney whether a person had not 
 applied to him to draw a conveyance, Parke, J., refused to allow 
 the question to be asked, saying, ' I am of oiiiuion that the privilege 
 applies to all cases where the client applies to the attorney in his 
 professional capacity, and an application to draw a deed is, I think 
 of that description, (li) 
 
 In one case, {%) Alderson, B., said, 'The rule seems to be corre- 
 lative with that wliich governs the summary jurisdiction of the 
 courts over attorneys. In Ex parte Aitken, (_/') that rule is laid down 
 thus : " Where an attorney is employed in a matter wholly uncon- 
 nected with his professional character, the Court Avill not interfere 
 in a summary way to compel him to execute faithfully the trust re- 
 posed in him ; but where the employment is so connected with his 
 professional character, as to afford a presumption that his character 
 formed the ground of his employment by the client, there tlie 
 Court will exercise this jurisdiction." So where the communication 
 made relates to a circumstance so connected with the employment 
 as a solicitor, that the character formed the ground of the com- 
 munication, it is privileged from disclosure.' Thus communications 
 made in relation to the sale and purchase of estates are protected ; 
 a solicitor, therefore, who has been employed in the purchase and 
 sale of estates, cannot be asked as to a communication made to him 
 by the party wlio employed him. (k) So a solicitor who, being 
 resorted to by a borrower to raise money for liim, peruses on the 
 part of the proposed lender the abstracts of the borrower, is not 
 allowed to give evidence concerning them, (l) But where a treaty had 
 been entered into by B. with E. for the exchange of lands, and an 
 abstract was handed by the attorney ofE. to the attorney of B.,and 
 he compared it with the title deeds, and the attorney of B. on being 
 called upon to produce the alxstract stated that his client claimed to 
 
 543 
 
 Ackernian, 5 Esp. 120, and Eolisoii r. 
 Kemp, 5 Esp. 52, it ajipears that Lord 
 Ellciiborough, C. J., was of the sanio 
 opinion. 
 
 ((') Wadsworth v. Ilainshaw, 2 Bred. 
 & Hing. 5, note {'(). Manning's Dig. 
 374. Williams v. Mnndie, K. & M. N. 
 r. C. 34. 
 
 (/) Thill. Ev. 168. 
 
 (f/) The o)>inion of Lord Chancellor 
 I'.roughani, Tindal, C. J., Lord Lynd- 
 hurst, ('. K. , and Paike, H., in Greenough 
 V. tliiskell, iMvlae & K. 98, a.s stated 4 
 B. & Ad. 876, per Parke, B. 
 
 (h) Doe d. Shcllard v. Harris. r> V. k 
 P. 592. The learned liaron also held in 
 the same case that the attorney could not 
 lie asked whether the party had asked his 
 advice for a lawful or for an unlawful 
 purpose, saying, ' there is a great deal 
 of difliculty in the witness's disclosing 
 whether the conference between him and 
 his client wa.s for a lawful or unlawful 
 
 The rule is 
 correlative 
 with that 
 which governs 
 the summary 
 jurisdiction of 
 the courts 
 over solicitors. 
 
 On sale of 
 estates. 
 
 purpose, without one being told what it 
 was. It might be that the party asked 
 if a particular thing could leg-ally be 
 done.' The learned Maron also .said, that 
 AVilliams v. Mundie was overruled by 
 Greenough r. Gaskell. In Bowman r. 
 N<nton, 5 0. & P. 177, Tindal, V. J., 
 held that a conversation between a client, 
 who afterwards became bankrupt, and his 
 attorney's clerk, on the .subji-et of his 
 allairs, was a ju'ivileged communication, 
 an<l could not bo given in evidence in an 
 action by his assignees for the pui-pose of 
 showing his motives. 
 
 (A Tunpian-l r. Knight, 2 M. .<c W. 
 98. 
 
 (j) 4 B. & .\hl. 17. See.ilso L'r p,ir/<- 
 Yeatnnin, 4 Dowl. P. H. :J04. 
 
 (A) Mynn v. .lolilfe, 1 M. & Hob. 326, 
 Littlcdale, J. 
 
 (/) Doe (/. Peter >'. "Watkins, 3 Bing. 
 N. G. 421. And see Taylor r. Bhicklow, 
 3 Bing. N. G. 235.
 
 544 
 
 Of Evidence. 
 
 [book VI. 
 
 Attorney not 
 liounil to 
 jifoduco or 
 ht.itc llie mil. 
 t'-nt-s of any 
 (lociimcnl ; 
 
 except for the 
 liurposo of 
 identification. 
 
 The privilege 
 extends to all 
 knowledge, 
 however ob- 
 tained. 
 
 Attoraey not 
 allowed to 
 ]iroduce docu- 
 ments, &c., 
 deposited with 
 him hy his 
 client. 
 
 l)c nifitlcd to the prupcrty iiiidor tlic contract of exchange, and tliat 
 he held the abstract as part of the evidence of the contract, and 
 liad not appliisd to his client for leave to produce the abstract, but 
 was ready to do so, if the judge thought he ought, and the judge 
 answered that there appeared no sufficient reason wliy he should 
 not, it was held that the abstract was properly produced, (m) 
 
 A solicitor is not bound to produce, or to answer any questions 
 concerning tlic nature or contents of, a deed or other instrument 
 intrusted to him professionally by his client ; and the jtidgc has no 
 right to look at the instrument to see if the objection to produce 
 it or to disclose its contents be well founded or not ; for the mere 
 statement of the solicitor that he received the document from his 
 client professionally is enough to protect it. {n) But where an 
 attorney refused to produce a deed on the grovmd that it was one 
 of his client's title-deeds, and his clients had instructed him not to 
 produce it, the privilege was allowed ; but the judge directed him 
 to produce the deed and permit a witness to read the indorsement 
 on it, but not the deed itself, for the purpose of identification ; it 
 Avas held that the judge did right, for the privilege is only not to 
 produce the instrument for the purpose of disclosing its con- 
 tents, (o) 
 
 A communication made to a solicitor, if confidential, is privileged 
 in whatever form made ; if it would be privileged when communi- 
 cated in words spoken or written, it will be privileged equally 
 when conveyed by means of sight instead of words, {p) Where, 
 therefore, the attorney of a defendant, at the suggestion of his 
 counsel in consultation, obtained a deed from the defendant, and 
 in the presence of his counsel, and for their information, ascertained 
 its contents, it was held that he was not bound to .state its contents.(^) 
 So letters between a defendant and her country or town solicitors, 
 and letters between her countr}'^ and town solicitors, are privileged. (r) 
 
 A solicitor will not be allowed to produce a deed which has 
 been deposited w'lih. him confidentially in his professional character ; 
 and if the deed has been obtained out of his hands, for the purpose 
 of being produced in evidence by another witness, it cannot be re- 
 ceived. Thus a copy of a deed which had been obtained from one 
 who had formerly been entrusted with the original in his profes- 
 
 (?«) Doer?. LordEgremont r. Langdon, 
 12 Q. B. 711. 
 
 (w) Volant r. Soyer, 13 C. B. 231. 
 
 (o) Phelps r. Prow, 3 Y.. & B. 430. 
 Coleridge, J., .said that the process of 
 identification might at times involve a 
 disclosnre of the contents of the instru- 
 iriinit ; and when it did it was objection- 
 able. But in this case it did not involve 
 any disclosure of the contents, and was 
 like the case of disclo.sing a blot of red 
 ink on the back of a deed. 
 
 \p) 1 Phill. Ev. 169, citing Robson r. 
 Kemp, .'i Esp. H. 51, where it was held 
 that an attorney could not give evidence 
 as to the fact of the destruction of an 
 instrument which he had been admitted 
 in confidence to see dcstroved. In Wheat- 
 ley 1-. Williams, 1 M. & "W. ,'^33, it was 
 held that an attorney is not lompellablc 
 to state, when examined as a witness, 
 whether a document shown to him bv his 
 
 client in the course of a professional in- 
 terview was then in the same state as 
 when produced on the trial, e.g., whether 
 it was then stamped or not ; and per 
 Lord Abinger, C. B., 'Suppose an attor- 
 ney when searching for a deed belonging 
 to his client, found another deed which 
 might operate to the client's prejudice, 
 can it be said that he would be bound to 
 produce it ? If, therefore, a document 
 be exhibited to an attorney, in pursuance 
 of a confidential consultation with his 
 client, all that appears on the face of 
 such document is a part of the confiden- 
 tial communication.' 
 
 (q) Davies v. Waters, 9 JI. & W. 60S. 
 
 (?) Reid r. Langlois, 1 JIac. & Gord. 
 C27. Goodall r. Ltttle, 1 Sim. N. S. 155. 
 And see Penruddock v. Hammond, 11 
 Beav. .')9, Blcnkinsop v. Blenkinsop, 10 
 Beav. 277, as to cases for counsel, &c. 
 Vent r. Pacey, 4 Russ. 193.
 
 CHAP. V. § I.] Privileged Communications. 545 
 
 sional character as a solicitor, is not good secondary evidence 
 against his client, {s) But this case has been doubted, {t) Where 
 a vendor had a draft of conveyance made by his own attorney, 
 from which the deeds were afterwards prepared, and the attorney 
 was paid for this business by the vendor and purchaser in moieties 
 by agreement, but the latter employed an attorney on his own 
 part to look over the draft, which remained afterwards with the 
 vendor's attorney ; the Court of King's Bench held that such 
 draft was confidentially deposited with the latter by the purchaser 
 as well as the vendor, and could not be produced on a trial against 
 the interest of the purchaser's devisees, though with the consent of 
 the vendor and his attorney, {u) And even if a solicitor has on 
 one occasion produced a deed entrusted to him by a client under 
 the erroneous compulsion of one tribunal, he Avill not be Iwund to 
 produce it before another tribunal, (v) So where an attorney, 
 attending under a subpoena duces tecum, stated that he had a 
 deed in his custody as attorney, but that his clients had instructed 
 him not to produce the deed, which was one of their title-deeds, 
 and he, therefore, refused to produce it, it was held that he was 
 not bound to produce it. {iv) So where upon an indictment for P-'^per re- 
 perjury alleged to have been committed on the trial in a County purpose^of a° 
 Court with reference to the writing on a paper then produced, an cause, 
 attorney was called under a subpoena duces tecum to produce such 
 paper ; he had been attorney for the prisoner in the County Court, 
 and had received this paper from the prisoner for the purpose of 
 conducting the case in County Court as his attorne}^, and he claimed 
 a lien on the paper for his costs ; Coltmau, J., held that the attor- 
 ney's possession was the possession of the prisoner, and that he 
 ought not to produce it. {a:) 
 
 So on the prosecution for the forgery of a promissory note, an Forged note, 
 attorney who had acquired possession of the note in his professional 
 character from the prisoner was not compelled or allowed to pro- 
 duce it, although subpoenaed so to do, and although he was not 
 employed professionally for the prisoner at the trial, but was 
 originally consulted about the note, for the purpose of suing the 
 party upon it whose name was charged to be forged, {y) But this 
 case has since been doubted. On an indictment for forging a will, Forged will. 
 a solicitor stated that he was applied to by the prisoner to act as 
 his solicitor in raising some money ; and that he was the solicitor 
 of the prisoner in raising the money as well as of WilHanis in the 
 
 (s) Fisher r. Heming, MS. 1 Phill. was not bound to produce it on the trial. 
 
 Ev. 170, Bayley, J. See also Copelaud (u) Doe </. Strode v. Seaton, '2 A. ct E. 
 
 V. Watts, 1 Stark. N. P. C. 93. 171. 
 
 {t) '1 have always doubted the cor- (r) Nixon r. Maj-oh, 1 M. & IJob. 76. 
 
 rectness of that rulinj,'. Where an at- (w) Phelps r. Prew, 3 E. & P. 431. 
 
 torney intrusted contidentially witli a (.«•) Keg. r. Hankins, 21'. & K. 823. 
 
 document, louiiiiunicati's the contents of (//) lu'.x v. Smith, <•"/•. Ilolroyd, J., 
 
 it, or sulfers anoliicr to take a co]>y, MS. 1 Phill. Ev. 171. In Weeks v. 
 
 surely the .secondary evidence so oh- Argent, 16 M. & W. 817, Parke, P., 
 
 taincd may be produced. Suii]iose the .said, ' All that Kex v. Smith decides is 
 
 instrument were even stolen, and a cor- that the possession of the attorney for 
 
 rect copy taken, would it not be reason- the prisoner wa.s the pos-ses-sion of tho 
 
 able to admit it?' ])er Parke, H., in Lloyd ]>risoner, so that if tho pri.soner did not 
 
 V. Mostyn, ]0 ^I. & W. 478, where it was .suilVr liini to juoduce it, secondary evi- 
 
 held that a cojiy e.\;imined with a bond, dence of it would have been admissible 
 
 })roduced for tho (nirpose of admission for the purpo.si's of criminal justice.' Sec 
 
 under a judge's order, was admissible, 21 & 25 Vict. c. 9{J, s. 4t), noticed post, 
 
 although the attorney who held the bond p. 548. 
 
 VOL. III. N N
 
 54 
 
 Of Evidence. 
 
 [book VI. 
 
 If a person 
 applies to a 
 solioitor to 
 ailvancc him 
 mouey on 
 mortgage, and 
 deposits a 
 forged docu- 
 ment with 
 him as part of 
 the title to the 
 property, this 
 is not a privi- 
 leged com- 
 munication. 
 
 If a forged 
 will be de- 
 livered to a 
 
 advance of it; that the prisoner made an application to him; it 
 was ()l)j(M;ted that this was a privileged communication, as the 
 party was the solicitor for the prisoner ; and the preceding case 
 was relied upon. Patteson, J., ' I think that tho case cited is not 
 law, {z) and that the solicitor may be examined to show what was 
 the transaction between tho parties, and what led to that transac- 
 tion ; but I will reserve the point for the consideration of the 
 judges, if I should hereafter think it necessary to do so,' The wit- 
 ness then stated that the prisoner proposed to mortgage .some land, 
 wliicli had been left him by his aunt, and that the prisoner told 
 him the title deeds had l)een burnt, but that he gave him a paper 
 which he said was his aunt's will. It was again objected that, as 
 the will had been delivered to the witness by the prisoner while 
 he was attorney for the prisoner, he ought not to produce it ; 
 Patteson, J., ' I think he is bound to do it.' The will was produced 
 and read, and it was the will alleged to be forged. («) 
 
 Upon an indictment for forging a will, it appeared that the wife 
 of the prisoner, by his direction, took a will purporting to be the 
 will of W.W. (not the will in question, but another forged will) to 
 Mr. Cadle, a solicitor, and asked if he could advance her husband 
 some money upon mortgage of property under the will of her 
 father, W.W. She left the will with Mr. C, who afterwards re- 
 turned it to her husband, and communicated to him what had 
 passed with his wife. Mr. C, while the will was in his possession, 
 had made an exact copy of the will, and the prisoner had had 
 notice to produce it, and, not producing it, the copy was tendered 
 in evidence. Mr. C. said, that at the time the will was produced 
 to him he was not acting as attorney of the prisoner, and did not 
 charge for the interview, but if he had been acting as his attorney 
 he should have made a charge ; if he had found the security 
 sutBcient, he should have advanced the money ; he was in no other 
 way acting as the prisoner's solicitor. It was objected that the 
 interview with the prisoner's wife was confidential, and that the 
 conversation, which then took place, and the copy of the will, were 
 not admissible ; but the evidence w^as admitted. And, upon a 
 case reserved, the judges held that the communication was not 
 privileged. (6) 
 
 The prisoners were convicted of uttering a forged will. One of 
 them having possessed himself of some title deeds from the house 
 
 (;) In Reg. r. Tylney and Tutts, 1 
 Den. C. C. 319, Tatteson, J., said that 
 tills observation was too strong, and that 
 Rex V. Smith and Reg. v. Avery were 
 distinguishable. 
 
 (a) Reg. r. Avery, 8 C. & P. 596. 
 The indictment charged the intent to be 
 to defraud Williams and the attorney in 
 different counts. The prisoner was con- 
 victed, but no sentence passed on the 
 indictment for forgery, the prisoner being 
 sentenced on an indictment charging the 
 tiansaction as a false pretence. Mr. Phil- 
 lipps, vol. I, p. 171, observes that ' the 
 distinction between this case and Rex v. 
 Smith is obvious. In Reg. r. Avery, the 
 prisoner deposited the instrument in the 
 hands of his solicitor, not with reference 
 to a suit, nor with reference to any trans- 
 
 action resting solely between themselves, 
 but for the purpose of a money transaction 
 between himself and a tliird person, and 
 to be disclosed and communicated to that 
 pei-son. In the case of Kex r. Smith, on 
 the contrary, the instrument was deposited 
 with the solicitor for the purpose of a suit 
 in which he consulted him professionally 
 as a matter in confidence between hint 
 and his solicitor, and solely for his own 
 interest. The two cases, therefore, are 
 not inconsistent, and the one does not 
 overrule the other. ' 
 
 {h) Resr. V. Farley, 1 Den. C. C. 197, 
 2 C. & k. 313. Pollock, C. B., in the 
 course of the argument, asked, ' Do you 
 mean that a man may always apply to an 
 attorney to discount a forged bill with 
 impunity ? '
 
 CHAP. V. § I.J Privileged Communications. 
 
 of the deceased, placed the forged will in the midst of them, and 
 sent them to his attorney for the ostensible purpose of asking his 
 advice upon the title deeds ; but as Pollock, C. B., clearly thought, 
 in order that the attorney might find the will among them, and 
 act upon it, which he did by producing it on various occasions in 
 the presence of such prisoner. It was afterwards produced before 
 the magistrates at the j^reliminary investigation, and returned to 
 the attorney. He was called upon the trial, and required to pro- 
 duce the will, which he did without objection, and handed it to the 
 officer of the court. It was objected that it was a privileged com- 
 munication, and ought not to be read ; but Pollock, 0. B., over- 
 ruled the objection, and, upon a case reserved, the judges thought 
 that the will was not put into the attorney's hands in professional 
 confidence, and that the rule as to privileged communications 
 between attorney and client did not apply, (c) 
 
 So where on an indictment for forging the will of W. Tuffs, an 
 attorney, who had possession of the will, stated that the prisoner 
 had consulted him, on a previous occasion, about some professional 
 matters, on which he had advised her, though he had never made 
 any charge for that advice, and that she afterwards brought a paper 
 (the forged will) with her, and he judged from what she said that 
 she came to consult him as to that document ; that it was for the 
 purpose of enforcing that document : he said further, ' she did not 
 come to consult me as to what her rights were, but that I might 
 enforce her rights under it.' It was objected on behalf of the jDri- 
 soner that the attorney could not be allowed to produce the docu- 
 ment ; but Coltman, J., considered the effect of the attorney's 
 evidence to be, that the document was committed to him, not to be 
 kept as a confidential deposit, but in order that it might be exhi- 
 bited in court for the purpose of enforcing her rights, and tliought 
 it, under the circumstances, advisable to receive the document in 
 evidence with a view of obtaining the opinion of tlie judges on the 
 point ; which was reserved, but no opinion was given upon it, as 
 the case Avent off on another point, (rf) 
 
 Where on an indictment for forgery it appeared tliat the prisoner 
 had charged one Brittain with forgery, and had employed an attor- 
 ney to conduct that prosecution, who had been served with a sub- 
 poena duces tecwm to produce certain documents in this prosecution, 
 and who, being called as a witness, stated that the documents had 
 come into his possession as attorney for the prosecution in liej. v. 
 Brittain, in which case he was retained by the prisoner as attor- 
 ney for the prosecution. It was urged for the Crown tlu\t an 
 
 547 
 
 solicitor, in 
 order that he 
 may act upon 
 it, this is not 
 privileged. 
 
 If a forged 
 will is given 
 to a .'solicitor 
 to enforce the 
 l)arty's rights, 
 semble that it 
 is not pri- 
 vileged. 
 
 Solicitor 
 compelled to 
 produce forged 
 documents. 
 
 (r) Reg. V. Hayward, 2 C & K. 234. 
 S. C, as Keg. v. Jones, 1 i)cn. C (". 
 166. 
 
 (d) Reg. V. Tylncy and Tuds, 1 Den. 
 C. C. 319. See ante, vol. 2, p. 685. 
 Parke, B., ob.served, 'the expression 
 " for the ])urpose of enforcing tlie ddcu- 
 niciit " seems ainliigtioiis. Siipiiose it 
 was delivered to the attorney for the ex- 
 press purpose of showing that the tenant 
 in possession might give up the posses- 
 sion to the forger of the will ! Supposing, 
 on the other hand, a man gives his title 
 deeds to an attorney to enable him to 
 
 bring an action of ejectuient, lie ought 
 not, perhaps, to show them adversely to 
 his client.' In the report of tliis case, 3 
 Cox, V. C. 1(30, Wilde, V. J., said, 'If 
 title deeds arc intrusted to an attorney 
 as an attorney, '"in it be doubted that 
 he is not at liberty to produce them ? ' 
 Lord neiiiiian, ('. J., 'nut if a forged 
 and false instrument is given to an attor- 
 ney, ought he not to take it to a magis- 
 trate V Wilde, ('. J., 'I apprehend the 
 magistrate could not receive the state- 
 ment.'
 
 548 
 
 Of Evidence. 
 
 [l300K VI. 
 
 As to the 
 ciTtvt of tho 
 24 it 'i:> Vict, 
 c. US, 8. IG. 
 
 Solicitor 
 employed for 
 ftn illegal 
 purpose. 
 
 attorney cannot refuse to produce documents deposited with him 
 by a person charf^ed with an offence in respect of such documents, 
 otherwise ju.stice might be defeated. Were the privih'ge liere 
 sought to bo estabh.shcd granted, conviction might be impossible, 
 by reason of the non-pnxhiction of tlie forged document; and 
 Willes, J., held that the dooiments must be produced, (c) 
 
 The preceding case occurred after the passing of the 24 & 25 
 Vict. c. !)iS, s. 46, by wliich any justice may issue a warrant to 
 .search for any forged instrument whatsoever ; and, though no re- 
 ference is reported to liave been made in that case to that clause, 
 it may possibly have influenced the deci.sion ; for as a forged instru- 
 ment may be seized under that clause, it is difficult to see how a 
 solicitor can have such a possession of it as will privilege him from 
 producing it. (/) 
 
 A very important question arises, where a solicitor has been 
 employed for an illegal purpose, whether any communication in 
 furtherance of such purpo.se can be considered as privileged; and the 
 authorities appear to be very strong that no privilege exists in such 
 cases, {g) 
 
 (e) Keg. V. Brown, 9 Cox, C. C. 281, 
 Jlay, ]8(3'2. The prisoner was unde- 
 feuJed, no case was cited and the re- 
 port does not state what the documents 
 were. 
 
 (/) Sec the clause and the note to it, 
 vol. 2, p. 736. 
 
 {//) In the great case of Annesley v. 
 The Earl of Angclsea, 17 How. St. Tr. 
 1139, p. 1226, ct scq., it appeared that 
 Giffard had been fre([ueutly employed as 
 attorney for Lord Angelsea, but that for 
 some time another fnm had been his at- 
 torneys, and that on the 1st of May 
 Annesley had shot a man, on whom an 
 inquest was held on the 4th of May, and 
 a verdict of murder found against Annes- 
 ley, for which he was aftenvards tried 
 and acquitted (see Rex v. Annesley, 18 
 How. St. Tr. 1094), and that on the 2nd 
 of May Lord Angelsea had sent for Gif- 
 fiird, and directed him to collect evidence, 
 and to carry on the prosecution, and to 
 follow the directions of the other attor- 
 neys, who had advised him not to appear 
 in "the prosecution for fear of its hurting 
 him in the cause which was coming on 
 between him and Annesley ; and that 
 Lord Angelsea, cither then or afterwards, 
 but it does not clearly appear when, told 
 Giflard that he did not care if it cost him 
 10,000/. if he could get Annesley hanged, 
 for then he should be easy in his title 
 and estates, and he understood that it 
 was his resolution to destroy him if he 
 could. It was supposed at the time that 
 Annesley intended to sue for the title and 
 estates of Lord Angelsea, and this was 
 to prevent it. GifTanl conducted the pro- 
 secution. The (juestion was, whether 
 the statement as to the 10,000/. was pri- 
 vileged ; for Annesley it was contended 
 that it was not. Serjt. Tisdall said, ' Jf he 
 is employed as an attorney in any unlaw- 
 ful and ^vicked act, his duty to the public 
 
 obliges him to di.«close it. No private 
 obligations can dispenst; with that uni- 
 versal one, which lies on eveiy member 
 of society to discover every design which 
 may be formed, contrary to the laws 
 of society, to destroy thf public welfare. 
 For this reason I apprehend that if a 
 secret, which is contrarj- to the public 
 good, such as a design to commit trea- 
 son, murder, or perjury, comes to the 
 knowledge of an attorney, even in a cause 
 wherein he is concerned, the obligation 
 to the public must dispense with the pri- 
 vate obligation to the client : but in this 
 case the witness was not attorney to Lord 
 Angelsea in any case relative to his testi- 
 mony.' The court held that the state- 
 ment was not privileged, and seem to 
 have adopted the view iirged by counsel. 
 C. B. Bowes said, ' As this was in part a 
 wicked secret, it ought not to have been 
 concealed ; though, if earlier disclosed, it 
 might have been more for the credit of 
 the witness.' Mounteney, B., after re- 
 peating the statement, said, ' Let us con- 
 sider the doctrine, that such a declaration 
 made by any person to his attorney ought 
 not by that attorney to be proved. A man 
 (without any natural call to it) promotes 
 a ]>rosecution against another for a capital 
 oflence — he is determined at all events 
 to get him hanged — he retains an attor- 
 ney to carry on the prosecution, and 
 makes such a declaration to him as I have 
 mentioned (the meaning and intention of 
 which, if the attorney has common un- 
 derstanding about him, it is impossible 
 he should mistake)— he happens to be too 
 honest a man to engage in such an affair 
 — he declines the prosecution — but he 
 must never discover this declaration be- 
 cause he was retained as attorney. The 
 jirosecutor apjilies in the same manner 
 to a second, a third, and so on, who still 
 refuse, but are still to keep this inviolably
 
 CHAP. V. § I.] Privileged Communications. 
 
 In the case of Rex v. Dlwn, (h) it was held by Lord Mansfield, 
 and the rest of the. court, that an attorney, who had been served 
 with a suhpoRna duces tecum out of the Crown Office to produce 
 certain vouchers which his client, a Mr. Peach, had exhibited and 
 relied upon before a Master in Chancery, and which subpoena had 
 been served on the attorney in order to found a prosecution for 
 forgery against his client, was not bound to produce these required 
 vouchers, (l) And the attorney-general, if ({uestioned as to 
 the reasons for filing an ex offi^cio information, may refuse to 
 answer, {j) 
 
 The privilege does not attach to everything which the client 
 says to his solicitor ; the test is, whether the communication is 
 necessary for the purpose of carrying on the proceeding in which 
 the solicitor is employed ; if it is necessary it becomes privi- 
 leged, {k) but if it is not it may be disclosed. Thus a solicitor 
 
 549 
 
 secret ; at last he finds an attorney wicked 
 enough to carry tliis ini(iuitous scheme 
 into execution, and after all none of these 
 persons are to be admitted to prove this 
 in order either to bring the guilty party to 
 condign punishment, or to prevent the 
 evil consequences of his crime with re- 
 gard to civil property. Is this law ? 
 Is this reason ? I think it is absolutely 
 against both.' In Russell v. Jackson, 9 
 Hare, 387, an attorney had been in- 
 structed to prepare a will by a testator to 
 leave his property for the purpose of es- 
 tablishing a school for the education of 
 children in the doctrines of socialism, 
 and the attorney intimated doubts whe- 
 ther the law would permit such a dispo- 
 sition, and the testator then said that his 
 two devisees knew his intentions, and, 
 having confidence in them, he would 
 leave his property to them, being satisfied 
 that they would carry out his intentions ; 
 and the question was wliether these in- 
 structions were privileged ; and it was held 
 that they were not ; and V. C. Turner 
 said, 'Can it then be said tliat the com- 
 munication should be protected, because 
 it may lead to the disclosure of an il- 
 legal purpose ? I think that it cannot ; 
 and that evidence whicli would otherwise 
 be adniissibh^ cannot be rejected on such 
 a ground. On the contrary, I ain very 
 much disposed to think that the existence 
 of the illegal purpose would jircvent any 
 privilege attaching to the communication. 
 Where a solicitor is party to a fraud, no 
 privilege attaches to the communications 
 with him on tlie sulijcct, because tlie con- 
 triving of a fraud is no part of liis duty 
 as solicitor ; and 1 think it can as little 
 be said that it is part of tlie duty of a 
 solicitor to advise his (dient as to the 
 means of evading the law.' In Equity 
 any person standing in the conlidciitial 
 relation of a clerk or servant may bo |»io- 
 hiliited, subject to certain exceptions, 
 from disclosing any part of the transac- 
 tions of which he so acquires a know- 
 ledge ; and in Gartside v. Outrain, 2G 
 Law J. Chanc. 11.'$, the plaiutitls filed a 
 bill for an iujimctiou to restrain their 
 
 former clerk from disclosing any of their 
 transactions ; the clerk, by his answer, 
 stated that the plaintilfs carried on their 
 business in a fraudulent manner, specify- 
 ing the particulars, and filed interroga- 
 tories for the examination of the plain- 
 tiffs, containing questions as to the alleged 
 fraudulent transactions ; and it was held 
 that the plaintiffs were bound to answer 
 these interrogatories. Wood, V. C. : 'The 
 tme doctrine is that there is no confidence 
 as to the disclosure of ini(puty. You can- 
 not make me the confidant of a crime or a 
 fraud, and Ijc entitled to close uji my lips 
 upon any secret which you have the auda- 
 city to disclose to me relating to any 
 fraudulent intention on your part ; such 
 a confidence cannot exist.' Having re- 
 ferred to Keg. V. Avery, anfe, p. 546, 
 and said that, ' If there is a discrepancy 
 of authority upon the subject, I much 
 prefer the decision of Patteson, J.,' Wood, 
 V. C, next cited Annesley v. The Eiirl of 
 Angelsea, and spoke of it as a case, ' in 
 which the point is put so ably and clearly 
 by the counsel in argument, "that I adopt 
 that argument as the best expression of 
 my opinion,' and then read Serjt. Tis- 
 dall's argument, supra, and the parts 
 of the judgments of C. H. Bowes and 15. 
 Mounteney, supra. 
 
 {h) 3 lUirr, 1687, cited by I.or.l Ellen- 
 borough in Aniey v. Long, 9 East, 485. 
 
 (/) See also Laing v. Barclay, 3 SUirk. 
 33 ; Harris v. Hill, 3 Stark." .\. \\ V. 
 140 ; S. C. 1 Dowl. & Hy. N. 1*. 0. 17 ; 
 Kex V. Upper Boddington, 8 Dowl. k, 
 \{y. 726. 
 
 (j) Hex V. Home, 11 St. Tr. 283. 
 
 (k) Per curiam tlilhud r. Bates, 6 M. 
 & W. 547. Tliere an attorney was sued 
 for work and labour in issuing an execu- 
 tion, and the defence Wius tiiat he was 
 employed by B. , nnd not by tiie defen- 
 dant, and it was held that the plaintiir.s 
 agent, an attorney, might lie asked whi'- 
 tlur the plainlilf had not said, on intro- 
 dueiiig 15. to him, that he, the j>laiiiti(T, 
 had been emjdoyed by B. to is.sue the i-x- 
 ecution in (|uestion and that this waa 
 not a privileged commuuication. 
 
 Attorney- 
 General. 
 
 How far the 
 privilege ex- 
 tends, and as 
 to what facts 
 a solicitor 
 may be ex- 
 amined.
 
 650 Of Evidence. [book vi. 
 
 may be examined like any other witness to a fact wliidi he knew 
 before his retainer, that is, before he was a<l(h-cssc(l in his piofes- 
 sional character {I) or wliere lie has made himself a party to the 
 transaction, (i/^) or where he is fiucstioned to a collateral fact which 
 he might have known without being intrusted as the solicitor in 
 th(^ cause. (») Thus he may prove his client's handwriting, though 
 the knowledge was obtained from witnessing his execution of the 
 bail bond in the action. {<>) And lie may be called to prove l;is 
 client's identity, {'p) And if he is ;i subscribing witness to a <leed 
 he ma}' be examined concerning the execution. ((/) But he ought 
 not to be permitted to discover any confessions whicli his client 
 may have made to him on such head, (r) So if the solicitor were 
 present when his client was sworn to an answer in chancery, upon 
 an indictment for perjury, he would be a witness to prove the fact 
 of taking the oath, for it is a fact in his own knowledge, and no 
 matter of secrecy committed to him by his client, {s) So the soli- 
 citor of one of the parties may be examined as to the contents of a 
 written notice which had been received by him in the course of a 
 cause, requiring him to produce papers ; {t) for the privilege only 
 extends to confidential communications from the client, and not to 
 those from collateral quarters, although made to him in conse- 
 quence of his character as a solicitor, (u) So a solicitor con- 
 ducting a cause in court may be called as a witness by the opposite 
 side, and asked who employs him, in order to show the real party, 
 and so let in his declarations, (i') So a solicitor may be called 
 and asked whether he has not a particular document in his posses- 
 sion, in order to let in secondary evidence, if the document is not 
 produced, {w) And where an action on a promissory note had been 
 compromised by the defendant's paying part of the money and 
 giving a warrant of attorney to confess judgment for the residue, 
 and in the interval between the time when the warrant of attorney 
 was given, and the time the money became due according to the 
 
 (?) Cuts r. Pickering, 1 Yeut. 197. a hill of exchange iatrasted to him by 
 
 Lord Say and Scale's case, 10 Mod. 41. his client ; for the existence of such a 
 
 1 Phill. Ev. 166. bill is not a mere fact, but consists of 
 
 (?n) Dufiin v. Smith, Peake, N. P. C. circumstances, which he came to be ac- 
 
 108. Robson r. Kemp, 5 Esp. 52. quainted with from the delivery of the 
 
 (?0 Pull. K P. 284. 1 Phill. Ev. bill to him by his client. Brard i-. Ack- 
 
 175. erman, by Lord Ellenborough, 5 Esp. 
 
 (o) Hurd V. Moring, 1 C. & P. 372, 120. 
 
 Abbot, C. J. (t) Spenceley v. Schulenburgh, 7 East, 
 
 {p) Studdy r. Saunders, 2 Dow. & Ey. 357. 
 
 347; but see Parkins v. Hawkshaw, 2 («) So an admission of a debt made by 
 
 Stark. N. P. C. 239. a solicitor to the adverse party, by di- 
 
 {q) Doe V. Andrews, Cowp. 846. Rob- rection of his client, is not privileged, 
 
 son V. Kcmii, 4 Esp. 235. 8. C. 5 Esp. Turner r. Railton, 2 Esp. 474. 
 
 52. Weeks r. Argent, 16 M. & W. 817. {v) Levy v. Pope, Moo. & MaL 410, 
 
 For if an attorney puts his name to Parke, J. 
 
 an instrument as a witness, he makes {w) Coates v. Birch, 2 Q. B. 252. 
 
 himself thereby a public man, and is no Dwyer v. Collins, 7 Exch. R. 639 ; 
 
 longer clothed with the character of an though it appears that he obtained it 
 
 attorney : his signature binds him to from his client in the course of a commu- 
 
 disclose what passed at the execution of nication with reference to the cause, 
 
 the instrument, but not what took place P>evan v. Waters, Moo. & Mai. 235, Best, 
 
 in the concoction and preparation of C. J. So a solicitors clerk may be 
 
 the deed : by Lord Ellenborough, 5 Esp. asked whether lie has not received a par- 
 
 54. ticular paper from his client. Eicke r. 
 
 (r) Bull. X. P. 234. Xokes, .Moo. & JIal. 303, Lord Tenter- 
 
 (s) Bull. N. P. 284, 285. But he is den, C. J. ; Duffin r. Smith, Peake, X. 
 
 not bound to speak to the particulai-s of P. C. 108, by Lord Kenyon.
 
 CHAP. V. § I.] Privileged Communications. 
 
 defeasance thereof, the plaintiff told his attorney in the suit, that 
 he was glad it was settled, for that he had not given consideration 
 for the note, and he knew it was a lottery transaction ; it was held, 
 that the attorney was admissible to prove this conversation in an 
 action to recover back the money, {x) The communication, said 
 Lord Kenyon,was not made by the client in confidence as instruc- 
 tions for conducting his cause ; on the contrary, the purpose in 
 view had been already obtained, and what was said was in exalta- 
 tion to his attorney for having before deceived him as well as his 
 adversary, and for having obtained his suit. 
 
 Where a prisoner being in custody on a charge of forgery wrote 
 a letter to a person, desiring him to ask Mr. G. or any other solici- 
 tor, whether the punishment of forging a bill is the same where 
 the name of the parties are entirely fictitious, as where the names 
 are those of real persons ; it was held that tliis letter was not a pri- 
 vileged communication, {y) 
 
 Foster had charged Brown before a magistrate with embezzle- 
 ment, and had produced liis day-book and cash-book, which were 
 examined both by Brown's counsel and the magistrate, and no 
 entry of the sum alleged to have been embezzled was found in 
 them. Brown was remanded on bail, and at that time he had 
 a key of the counting-house in which the books were kept. When 
 brought again before the magistrate the day-book was again pro- 
 duced, when there was found in it, in the handwriting of Brown, an 
 entry of the sum in question ; and the charge was dismissed. 
 Brown then brought an action against Foster for a malicious pro- 
 secution, and it was held that on the trial of that action, the coun- 
 sel of Brown might be called to prove that the entry was not in 
 the book on the first hearing before the magistrate ; for the counsel 
 of Brown did not acquire his knowledge of the contents of the book 
 from his client ; and he was only called upon to say what he him- 
 self saw upon the document, not what was communicated to him 
 by his client, {z) 
 
 Where in an action against the managing director of a projected 
 railway company, by a shareholder, to recover his deposits on the 
 ground of fraudulent misrepresentations and failure of considera- 
 tion, an attorney, who had been served witli a subpoina duces tccuni 
 to produce the minute-book of the company, declined to produce 
 it, on the ground that he had received it, after the company had 
 ceased to exist, from a member of the provisional committee, for 
 the purpo.se of defending him in an action brought against him as 
 such ; it was held that he was not bound to produce it, although it 
 was contended that the phaintiff was e(|ually interested in the book 
 with the person from whom the attorney received it. {a) It follows 
 
 551 
 
 If during a 
 trial a docu- 
 ment is pro- 
 duced by one 
 party, the 
 counsel or 
 solicitor of 
 the opposite 
 party may 
 afterwards 
 prove the 
 sUite in whicli 
 the document 
 then was. 
 
 If a document 
 has heen re- 
 ceived con- 
 fidentially, 
 a person in- 
 terested in it 
 cannot oomiicl 
 its production. 
 
 {x) Colxlen v. Keudrick, 4 T. W. 432. 
 
 ly) Kex V. Brewer, 6 ('. & P. 3(33, 
 Park, J. A. J. 
 
 (s) Brown V. Foster, 1 H. & N. 736. 
 
 («) Newton ?'. Chnjilin, 10 C. U. 3r.ii. 
 Wihlo, ('. J., after coiisultinf; Coltman, 
 Muule, Cresswell, niid Williams, J.s. The 
 question was arf^ucd bcfon^ the court, 
 but no express deci.sion given on it. 1 low- 
 ever, Maule, J., observed, 'A man has a 
 doeunu'iit in his i)Ossessiou, the disclosure 
 of which may utterly ruiu hiui. For his 
 
 necessary defence in another action, lie 
 conlides it to his attorney. Is it to bo 
 said that the attorney is bound to pro- 
 duee it, because some other person whom 
 he, the attorney, docs not represent, and 
 has no connection witli, h;us an interest in 
 it ? ■ ' Tiie privilege of the jierson who 
 delivered the book to the attorney, as to 
 the book, was the same in the hands of 
 the attorney as if ho had kept the book 
 in his own hands.*
 
 552 
 
 The confidence 
 iliioH not ceoHo 
 )<y tlio Hiilicilor 
 lioi-oniini; iu- 
 tuie.sU'il. 
 
 A Rolicitor 
 rannot uhc a 
 confiileiitinl 
 I'diiiiiniiiicatiou 
 on liis own 
 Lclnilf. 
 
 Conununic.i- 
 tions to obtain 
 information as 
 to facts. 
 
 Of Evidence. 
 
 [book VI. 
 
 Cross-exami- 
 nation of a 
 solicitor. 
 
 Where a party 
 is justified in 
 refusing to 
 produce a 
 document, bo 
 cannot be com- 
 pelled to prove 
 its contents. 
 
 How the ques- 
 tion may be 
 raised and 
 decided. 
 
 from tlii.s (Icci.sioii tliat, where an attorney liuhU a docunicnt for a 
 client, lie cannot bo compelled to produce it by a person who ha,s 
 an c<|ual interest in it with liis client. So also confidential com- 
 munications made by a party to his attorney or counsel do not 
 cca.sc to be privileged by the fact, that the attorney or counsel 
 afterwards becomes interested as devisee of the property, to the 
 title of which such communications related. (6) 
 
 Where in an action on a promissory note it appeared that the 
 plaintiff, being employed l)y the defendant as her attorney, had 
 written to ask her for information in order to assist him in prepar- 
 ing a case for the opinion of counsel ; it was held that he could 
 not give in evidence an account of monies paid and received, which 
 had been sent to him in consequence of his letter, for the purpose 
 of taking the case out of the Statute of Limitations, (c) 
 
 The privilege is also confined to communications to the solicitor 
 in his character of solicitor; and, therefore, a communication made 
 to him, or question asked him by his client, not for the purpo.se of 
 getting his legal advice, but to obtain information as to a matter 
 of fact, is not privileged. As where a client asked his attorney 
 Avhether he could safely attend a meeting of his creditors, called on 
 the attorney's suggestions, and the attorney advi.sed him to remain 
 at his office for the present, and he accordingly remained there two 
 hours to avoid being arrested ; it was held that the attorney might 
 prove all these facts, in order to show an act of bankruptcy, in an 
 action by his client's assignees, (cl) 
 
 If a solicitor or counsel be called by his own client to give evi- 
 dence, he is not privileged from cross-examination on the same 
 matter as to which he was examined in chief, although it were a 
 confidential communication made professionally ; but the cross- 
 examination must not extend beyond that matter, (e) 
 
 Where a party refuses to produce a document, and is justified 
 in so doing, he cannot be compelled to disclose its contents ; for 
 it would be perfectly illusory for the law to say that a party was 
 justified in not producing a deed, but that he was compellable to 
 give parol evidence of its contents ; that would give him, or rather 
 his client through him, merely an illusory protection, if he hap- 
 pened to know the contents of the document, and would be only 
 a roundabout way of getting from every man an opportimity of 
 knowing the defects there might be iu the deeds and titles of his 
 estates. (/) 
 
 With respect to the mode of determining the question whether 
 the communication be privileged or not, ' in general it is the solici- 
 tor who declines to give the evidence, on the ground of professional 
 confidence. But it is competent for the client to take the objec- 
 tion, and call witnesses to prove the incompetency, and the judge is 
 to determine the law arising from the facts.' (g) WTiere, therefore, 
 it was proposed to put in a written account on the part of the 
 plaintiff, it was held that the defendant was entitled to interpose, 
 
 (h) Chant c. Brown, 7 Hare, 79. 
 
 (c) t'leave r. Jones, 7 Exch. R. 421. 
 
 (d) Bramwell r. Luces, 2 B. & C. 745. 
 See Anuesley r. Lord Angelsea, 9 St. Tr. 
 391, before the Barons of the Exchequer 
 in Ireland, 1743. 
 
 (f) Vaillaut v. Dodemead, 2 Atk. 524. 
 
 15. I'. Lcvison, 11 Cox, C. C. 152. 
 
 (/) Da vies r. Waters, 9 M. k W. 608. 
 Per Alderson, B. Hibberd r. Knight, 2 
 Exch. K. 11. Marston v. Downes, 6 C. 
 & I'. 381. 1 A. & E. 31. 
 
 (q) Per Martin, B., Cleave r. Jones, 7 
 Exch. 421.
 
 CHAP, v^ § I.] Privileged Communications. 553 
 
 aud put in evidence a letter of the plaintiff, and examine a witness 
 to prove that the account was confidentially communicated by the 
 defendant to the plaintiff as her attorney. (A) 
 
 There are, besides these professional communications, a number luformers. 
 of cases of a particular description, in which, for reasons of public 
 policy, information is not permitted to be disclosed. Courts of jus- 
 tice will not permit witnesses to be asked the names of those from 
 whom they receive information as to frauds on the revenue, (i) And 
 the rule of public policy which protects a witness from beiug asked 
 such questions as would disclose the informei', if he be a third per- 
 son, equally applies to questions which would disclose whether the 
 witness is himself the informer. Therefore a witness for the Crown 
 in a revenue prosecution cannot be asked in cross-examination, 
 ' Did you give the information ? ' {j) In many trials for high trea- 
 son, the same course has been adopted ; and if parties were willing 
 to disclose the sources of their information, they would not be suf- 
 fered to do it by the judges, (/c) ' If the name of an informer,' said 
 Buller, J., in Hardy's case, ' were to be disclosed, no man would 
 make a discovery, and public justice would be defeated.' And this 
 privilege not only protects the actual informer himself, but those 
 questions, which tend to the discovery of the channels by which tlie 
 disclosure was made to the officers of justice, are not permitted to 
 be asked. Thus a person who has been employed to collect secret Agent of 
 information for the executive government, (l) or for the service of government or 
 the police, is not allowed to reveal the name of his employer, or the po^'^e. 
 nature of the connection between them ; (m) or the names of any 
 persons to whom he has communicated his information for the pur- 
 pose of its being transmitted, (?i,) whether those persons were magis- 
 trates, or concerned in the administration of government, or were 
 merely the channel through which information was conveyed to 
 government, (o) 
 
 In the A.-G.Y.Briant,{'p) Pollock, C. B., during the argument .saiJ, The rule does 
 'In ordinary prosecutions the name of the sovereign is used ; but it 
 may be used by any prosecutor ; and probably the rule does not apply 
 at all to such cases. But there may be reasons of state policy, 
 whenever the government is directly concerned ; and then the rule 
 applies whatever be the offence. And where on an indictment for 
 administering corrosive sublimate with intent to murder, it appeared 
 that some communication had been made to the police, on which 
 they searched a privy used only by the prisoner, and found in the 
 soil a phial containing corrosive sublimate, and on the trial the 
 policeman was asked from whom he had received the information, 
 and he stated that all the police had received printed in.structiou.s, 
 
 not apply to 
 ordin.ary pro- 
 secutions. 
 
 {h) Cleave v. Jones, supra, Eric, J., at 
 the trial, and sanctioned by the court 
 above ; and per Kolfc, B., at the first 
 trial of tlio same cause. Hereford Sum. 
 Ass. 1849. MSS. C. S. G. 
 
 (?) Hy Dallas, C. J., in Home v. licn- 
 tinck, 2 Brod. k Bing. 162. Hardy's 
 case, 24 How. St. Tr. 7-^3. But where a 
 ])er:ion ofliciously interferes to inform any 
 of the constituted authorities of allejTcd 
 abuses, the communication is not privi- 
 leged ; and, if untrue, maybe considcrctl 
 malicious aud actionable. Kobiusou r. 
 
 May, 2 Smith, 3. 
 
 (;■) A.-O. V. Briant, If. M. &. W. 169. 
 
 (k) 2 Iko.l. & liin-c. 162. 
 
 (/) A shorthand writer .sent to Ireland 
 by the government. Keg. v. U'Counell, 
 
 1 Cox, C. C. 403. 
 
 (VI) 24 How. St. Tr. 7.'''3. 1 riiill. Kv. 
 178. 
 
 (h) 24 How. St. Tr. 811. 
 
 {(•) By Abbot, J., in Ke.x v. Wat.son, 
 
 2 Stark. 136. Stone's ca.se, as cited by 
 Lord Kllenborough, C. J., ibid. 
 
 (p) Supra.
 
 554 
 
 Of Evidence. 
 
 [book 
 
 VI. 
 
 Official com- 
 munications. 
 
 Questions 
 contrary to 
 state policy. 
 
 Letter by a 
 private person. 
 
 Who is to de- 
 termine whe- 
 ther a ilocii- 
 nient should 
 be produced. 
 
 ono of which forhad thoni to name persons from whom any infor- 
 niiitioii wo-s received ; and h(; tlierefon; refused to say who were his 
 informants indess ordered to d(; so by his superintendent. Cock- 
 biirn, 0. J., ordered liim to answer the question, and lie answered 
 tliat he had it from two girls, who W('re not called for the prosecu- 
 tion. (7) 
 
 Upon the same ground IIk; attorney-general of Upper Canada 
 was not allowed to be asked as to the nature of a cominunication 
 made by him to the governor of tlie province, {r) 80 the orders 
 given by the governor of a foreign colony to a military officer 
 under his command ought not to be produced, (-s-) So Abbott, 
 C. J., refused to admit in evidence the report of a military court of 
 inquiry, in an action of libel by an officer, respecting who.se conduct 
 the court had been appointed to incjuire ; and his decision was con- 
 firmed on error in the E.xchequer Chandjer. (/) And Lord Ellen- 
 borough, C. J., would not permit the contents of a letter, written by 
 an agent of government to Lord Liverpool, then secretary of state, 
 or his lordship's answer, to be produced as evidence, {u) In Wat- 
 son's case, an officer of the Tower of London was not allowed to 
 prove that a plan of the Tower, produced by the defendant, was 
 accurate, (i') 
 
 But a letter written by a private individual to a public officer 
 (the chief secretary of the postmaster-general) complaining of the 
 misconduct of a person under him, does not fall within the preceding 
 cases. They were all cases of communication made by and be- 
 tween ministers and officers of government, and in the course of 
 the discharge of a public duty by the person making the commu- 
 nication, (iv) 
 
 The question whether the production of a document would be in- 
 juriovis to the public service must be determined, not by the judge, 
 but by the head of the department having the custody of the 
 paper ; and if he attends and states that in his opinion the produc- 
 tion of the document would he injurious to the public service, the 
 judge ought not to compel the production of it. If indeed the head 
 of the department does not attend personally to say that the pro- 
 duction will be injurious, but sends the document to be produced 
 or not as the judge may think proper, or sends a subordinate with 
 the document with instructions to object, but nothing more, the 
 case may be different, (.r) 
 
 (q) Reg. V. Richardson, 3 F. & F. 693. 
 Cockburn, C. J. , pointed out that it was 
 mo.st material to the ends of justice that 
 the persons should be named, as they 
 could have stated how it was that they 
 came to know that the bottle was where 
 it was found, and |ierhaps could have 
 given some clue as to the person who put 
 it there. 
 
 (r) Wyatt r. Gore, Holt, N. P. C. 
 299, ruled by Gibbs, C. J. 1 Thill. Ev. 
 181. 
 
 (s) Cooke V. Ma.xwell, 2 Stark. N. P. 
 C. 185. 
 
 {() Home f. Lord F. C. Bentinck, 2 
 Brod. & Bing. 130. 
 
 (m) Andei-sou v. Hamilton, (u.), 2 Brod. 
 & Bing. 156. 
 
 (r) 2 Stark. 148. 
 
 («■) Blake v. Pilfold, 1 M. k Rob. 198, 
 Taunton, J. 
 
 (x) Beatson v. Skene, 5 H. & N. 838, 
 29 L. J. Ex. 430. Martin, ^.,disseiUienU: 
 he thought that whenever the judge is 
 satisfied that the document may be made 
 public without prejudice to the public ser- 
 vice, the judge ought to compel its pro- 
 duction, notwithstanding the reluctance 
 of the head of the department to produce 
 it. In Dickson v. the Earl of Wilton, 1 F. 
 & F. 419, where a clerk from the War 
 Officewas called to produce a lettcrwritten 
 by a commanding oHicer of a regiment to 
 his immediate superior, but submitted on 
 behalf of the secretary of war whether it 
 ought to be produced, Lord Campbell, 
 C. J., held that it ought. See Dawkins 
 r. Lord Rokcby, L. R. 8 Q. B, 255.
 
 CHAP. V. § I.] Privileged Communications. 555 
 
 In the case of the Seven Bishops, the clerk of the privy council Transactions of 
 was compelled to state what passed in the Council Chamber, and privy council, 
 even what was said by the King himself, although the counsel for 
 the Crown objected to it. {y) And the same evidence was allowed 
 in Lord Strafford's case, (z) But in Layer's case, (a) it seems to 
 have been considered that the minutes taken before the privy 
 council were not to be divulged ; and that the two other cases above 
 cited were decided under the strong feelings which the circum- 
 stances of the times had produced ; and the latter in particular has 
 been considered as a very unwarrantable departure from law and 
 justice. (6) 
 
 A clerk attending upon a grand jury shall not be compelled to Grand jury. 
 reveal that which was given them in evidence ; (c) and the jurors 
 themselves are bound by oath not to disclose what passes before 
 them ; but it has been held that a grand juryman may be called to 
 prove who was the prosecutor of an indictment ; for it is a question 
 of fact, the disclosure of which does not infringe on his oath, (d) 
 But where the grand jury returned a bill of indictment containing 
 ten counts for forging and uttering the acceptance of a bill of ex- 
 change, with an indorsement, ' a true bill on both counts : ' Patte- 
 son, J., would not allow one of the grand jury to be called as a 
 witness, after the prisoner's trial had commenced, and after the 
 grand jury had been discharged, to explain their finding, (e) And 
 the Court of King's Bench have refused to receive an affidavit from 
 a grand juryman as to the number of grand jurors who concurred 
 in finding a bill. (/) 
 
 But where a gentleman of the grand jury heard a witness swear Evidence bc- 
 in court, upon the trial of a prisoner, directly contrary to the evi- fore the grand 
 dence Avhich he had given before the grand jury ; and he immedi- ^"'^^'' 
 ately communicated the circumstance to the judge, who, upon 
 consulting the judge in the other court, was of opinion that public 
 justice in this case required that the evidence which the witness 
 had given before the grand jury should be disclosed ; and the wit- 
 ness was committed for peijury, to be tried upon the testimony of 
 the gentleman of the grand jury. It was held that tlie object of 
 this concealment was only to prevent the testimony produced before 
 them from being contradicted by subornation of perjury on the part 
 of the persons against whom bills were found. This was a privilege 
 which might be waived by the Crown, (g) And so where the pri- 
 soner was indicted for perjury in evidence given before the grand 
 jury on a bill of indictment, a police con.stable, who was in the 
 grand-jury room at the time the evidence was given, was called to 
 prove the evidence of the prisoner, and it was urged that one of the 
 
 (y) 4 St. Tr. 346. 
 (s) 1 St. Tr. 723. 
 (a) 6 St. Tr. 288. 
 (6) 1 I'hill. Ev. 182. 
 
 (c) 12 Viu. Al)r. Evidence B., a, 5. 
 
 (d) Sykes v. Dunbar, Schv. N. P. 1050, 
 per Kenyon, C. J. 
 
 (e) Reg. V. Cooke, 8 C. & P. 582. 
 (/) Hex V. Marsli, 6 A. & E. 236. 
 
 ((/) Christian's Note, 4 HI. Com. 120. 
 There appears to be very little weight in 
 the reason assigned for the ('oncealment 
 even before the Prisoner's Counsel Bill 
 
 passed, because the prisoner had in far 
 the greater number of cases licard the 
 evidence of the witnesses licfon- the ma- 
 gistrate, and there is still les.s weight 
 now, since the i>ri.soner Ls entitled to 
 copies of the dejiositions. And tiieoatli 
 it.self seems not to apply to the facts 
 proved before the grand jury ; a.s fur as 
 regards this subject, it is ' the King'.s 
 counsel, your fellows' and your own, you 
 sliall keep secret.' 4 Chitt. Cr. L. 183. 
 C. S. G.
 
 nnc 
 
 Of Evidence. 
 
 [book 
 
 VI. 
 
 A witness iimy 
 lie askuil wliiit 
 lie (Miiil l>cfi)ro 
 the grand jury. 
 
 Ilonso of 
 Commons. 
 
 grand jury would not ho allowed to give the evidorico, ami that if 
 this witness were allowed to do so, it would l)e doing that in- 
 directly which c(juld not he done directly ; 'J'indal, (J. J., held that 
 the eviilencc might he given, a.s it wa.s for the purpo.ses of public 
 justice. (A) 
 
 In WatHOiis cane, (/) a witne.ss was questioned by the counsel for 
 the prisoner as to his having produced and read a certain writing 
 before the grand jury, and Jjord EUcnborough, C. J., said, ' He had 
 considerable doubt upon the subject ; he romernbered a case in 
 which a witness was questioned as to what pa.ssed before the grand 
 jury, and though it was a matter of considerable importance, he was 
 permitted to answer.' But it has since been held that a witness 
 for the pro.secution in a case of felony may be asked on cros.s-exami- 
 natiou whether he has not stated certain facts before the grand 
 jury, and that the witness is boimd to answer the question. {]) 
 
 A witness was not allowed by Lord Ellenborough to be asked 
 as to the expressions or arguments which a member of the House 
 of Commons had made use of in the House ; for, said his lordship, 
 it would be a breach of duty in the witness (who was a member 
 himself), and a breach of his oath, to reveal the councils of the 
 nation ; {k) but as to the fact of the plaintiff's having taken part in 
 the debate, he was bound to answer. {I) So a member may 
 prove who acted as speaker on a particular occasion, (m) 
 
 In 1818 the following resolutions were passed by the House of 
 Commons : ' Resolved, neTnine contraclicente, that all witnesses ex- 
 amined before this House, or any committee thereof, are entitled 
 to the protection of this House in respect of anything that may be 
 said by them in their evidence. Resolved, neniine contradicente, 
 that no clerk or officer of this House, or shorthand writer employed 
 
 (h) Reg. V. Huglies, 1 C. & K. 519. 
 In 2 Rolle Abr. 77 (F.) 1, we find 'if a 
 man empannelled and sworn on the Grand 
 Inquest discover to strangers the evidence 
 given to him and the rest of the jurors 
 lor the King, this is an offence puiiish- 
 abU' by tine and imprisonment on an in- 
 dictment. Mich. 15, Ja. B. K. in Smiths 
 & Hill's case admit. And the clerks of 
 the Crown Office said that this is usual.' 
 In 27 Ass. pi. (53, a gi-and juryman was 
 indicted as a felon for discovering what 
 took place before the grand jury ; but it 
 was said that some justices held that this 
 was treason : he was arraigned, however, 
 for felony only, and acquitteil: and a quwre 
 is added as to what the judgment woidd 
 have been if he had been convicted. In 
 the Poulterers' case, 9 Rep. 55 b, the 
 judges heard the evidence given to the 
 grand jury openlv in court. In the Earl 
 of Shaftesbury's "case, 3 Harg. St. Tr. 
 417, on a bill of indictment for high 
 treason the evidence was given in pnbUc 
 before the grand jurj", who doubted as to 
 the legality of the proceeding ; but Pem- 
 berton, C. J., and Xorth, V. J., both de- 
 clared that it had always been the prac- 
 tice to examine the witnesses publicly 
 before the grand jury whenever it had 
 beou requested by those who prose- 
 cuted for the King. This practice seems 
 
 strongly to show that any person not a 
 grand juror is competent to prove what 
 he has heard a witness state before the 
 grand jury ; for it cannot be doubted that 
 any of the public present in court when 
 the grand jury heard the evidence openly 
 migiit prove what he heard. Shaftesburj''s 
 case is said to have been the last instance 
 of such a procedure. 4 Bl. Com. 302, 
 Edit. Chr. 
 
 (i) 32 How. St. Tr. 107. 
 
 (j) Reg. r. Gibson, C. & Mars. 672, 
 Parke, B. It has been held that when 
 the grand jury have found a bill, the 
 judges before whom the case comes on 
 to be tried ought not to inquire whether 
 the witnesses were properly sworn before 
 they went before the gi-andjury, and it 
 seems that an improper mode of swear- 
 ing them will not vitiate the indictment, 
 as the grand jury are at liberty to find a 
 bill upon their own knowledge merely. 
 Reg. i: Russell, C. & Mars. 247. Gurney, 
 B., and Wightman, .1. ; and Wightman, 
 J., added, that Lord Denman, C. J., and 
 himself had decided the same point the 
 same way on the Northern Circuit. 
 
 {k-) Plunkett r. Cobbett, 5 Esp. 137. 
 29 How. St. Tr. 71, 72. 
 
 (I) 5 Esp. 137. 
 
 (m) Chubb v. Salomons, 3 C. & K. 75. 
 Pollock, C. B.
 
 CHAP. V. § II.] Examination of Witnesses. 557 
 
 to take minutes of evidence before this House, or any committee 
 thereof, do give evidence elsewhere in respect of any proceeding or 
 examination had at the bar or before any committee of this House, 
 without the special leave of the House.' (7?) 
 
 Since these resolutions it has been held that a member of the 
 House who acts as a teller on a division is not an officer of the 
 House ; and if a member be asked how another member voted on 
 a particular occasion, he will not be compelled to answer if he 
 decline doing so, and have not the leave of the House to give 
 evidence, (o) 
 
 Sec. II. 
 
 Hoiv vjitnesses our/ht to be examined, and ivhat Questions tliey 
 may he Asked, and comijelled to Ansiuer. 
 
 Before a witness is examined, he must be sworn in open Court* 
 The proper method of administering the oath, and the objections 
 which may be made previous to the administration of it, will be 
 hereafter considered. (2^) And the proper time and mode of 
 objecting to the competency of a witness, whether on the voire 
 dire, or at a later stage of the trial, will be discussed in the last 
 section of this chapter, (g) 
 
 After a witness has been regularly sworn, the party who has Examination 
 called him proceeds to examine him in chief; respecting which ex- '" ^'^'^f- 
 amination the most important rule is, that leading questions must Leading 
 not be put to the Avitness ; that is, questions which, being material *^"^'' ^°^' 
 to any of the points of the issue, plainly suggest to him the answer 
 he is expected to make. But this objection is not allowed to be 
 applied if the question is merely introductory, and one which, if 
 answered by Yes or lYo, would not be conclusive on any of the 
 points of the issue ; for it is neces.sary to a certain extent to lead 
 the mind of the witness to the subject of the inquiry. (/■) 
 
 Thus in an action of assumpsit against two, in order to prove What .ire not 
 that the defendants were partners, the first witne.ss was asked lea^Hng qucs- 
 whethcr one of them had interfered in the business of the other. *'°°^' 
 And upon this question being objected to as leading, Lord Ellen- 
 borough ruled that it might properly be asked, (s) An affirma- 
 tive answer to this question woidd not have been conclusive, for 
 the defendant might have interfered, without making himself a 
 partner. So where the witness called to prove the jjartncrship of 
 the plaintiffs could not recollect the names of the component mem- 
 
 (?i) See 2 C. & K. 483. During; the owing to thi-ir Ix'inf,' unal)le to agree, 
 
 recess it has been the constant practice of On hcing put on trial before a second jury, 
 
 the Speaker to grant such leave on the the judge, at the prisoner's reijuest, in- 
 
 ayiplication of the parties to a suit. May's stead of having the witnesses examined. 
 
 Law of Pari. 314. simply called and swore them, and read 
 
 (o) Chubb r. Salomons, 3 C. & K. 75. over his notes, allowing liberty to exa- 
 
 Pollock, C. B., after consulting the other mine and cross-examine each witness 
 
 Barons. thereafter. Held, that this was an irre- 
 
 {p) Post, s. 7, r- 61'- gular practice whether the prisoner 
 
 (5) Post, s. 7, p. (ill. a-ssentcd to it or not. H. v. Bertrand, 
 
 (r) Nicholls c. Dowding, 1 Stark. N. 10 Cox, C. C. 619. 
 P. C. 81. A prisoner for felony was (s) 1 Stark. N. P. C. 81. 
 
 tried, but the jury were discharged,
 
 558 
 
 Of Evidence. 
 
 [,..o 
 
 ijK VI. 
 
 Pointing out 
 priuouci'8. 
 
 Leading in 
 chief to con- 
 tradict former 
 •witness of ad- 
 verse party. 
 
 'Where not 
 allowable. 
 
 l)ors of tlic firm, so as to rcp(!at them witlioiit suggostion, but said 
 lie iiiif^lit possibly rocof^iiisc them, if suggested to bini ; Lord EUon- 
 borougb (idludiug to a case tried before Lord Mansfield, in wliicli 
 the witness bad been allowed to read a written list of names) ruled, 
 tbat tberc was no objcjction to asking tbe witness wlietber certain 
 specified persons were members of tbe firm, (t) Up(ni tiie trial of 
 J)e Berenger and otliers, before Lord Ellenborougb, at Ouildliall, 
 for a conspiracy, it became necessary for a witness (a post-boy, 
 w'lio bad been employed to drive one of the actors in tlie fraud) 
 to identify Do Berenger with tbat person ; and Lord Ellenborougb 
 held, tbat for tins purpose the counsel for the prosecution might 
 point out De Berenger to the witness, and ask him whether he 
 was the person, (w) So in Rex v. Watson, {v) tried at bar, upon 
 its becoming necessary to identify three of the prisoners, it was 
 objected, that the attention of the witness was too directly pointed 
 to them ; but the Court held, that the counsel for the prosecution 
 might ask in the most direct terms, whether any of the pri.soners 
 was the person meant and described by the witness. So where 
 the plaintiff's son, being called as a witness for his father, was 
 cross-examined as to the contents of a letter received by him from 
 the plaintiff", which he swore had been lost, and mentioned some 
 particular expressions as part of its contents ; and witnesses were 
 called on the part of the defendant to speak to the contents of the 
 same letter ; Lord Ellenborougb ruled that the defendant's coun.sel 
 might ask one of them, who had first exhausted his memory by 
 stating all he recollected of the letter, whether it contained the 
 particular expressions sworn to by the plaintiff's son ; for other- 
 wise, said his lordship, it woidd be impossible ever to come to a 
 direct contradiction, (tv) 
 
 When, upou cross-examination, a witness has denied having used 
 particular expressions, or having made a particular statement to 
 A. B., who is afterwards called on the part of the adverse pai-ty, 
 for the purpose of contradicting the first witness, by proving that 
 he actually did speak the words, or make the statement to him, 
 it is very usual in practice for the counsel of the adverse party, in 
 examining A. B. in chief as his own witness, to ask him, in the 
 first instance, whether the former witness, in conversing with him, 
 said so and so, or made such and such a statement. And accord- 
 ingly, where a witness of the plaintiff's, in cross-examination, had 
 been asked as to some expressions he had used, for the purj50se 
 of laying a foundation for contradicting him, and he had denied 
 having used them ; Abbott, C. J., held, that the defendant's 
 counsel, having called a person to prove that the former witness 
 had used such expressions, was entitled to read to his own witness 
 the particular words from his brief, {x) However, a very able 
 WTiter (//) has with great force endeavoured to show, that leading 
 questions under such circumstancas are irregular. 
 
 But this rule does not apply to conversations which are evidence 
 
 (0 Acerro v. Petroni, 1 St;uk. N. P. C. 
 100. 
 
 (u) 1 Stark. Ev. p. 167. 
 
 (r) Stark. N. P. C. 128. 
 
 \w) Courteen v. Touse, 1 Campb. 43. 
 
 (x) Edmonds v. Walter, 3 Stark, 
 
 N. P. C. 7. 
 
 \rj) 2 Phill. Ev. 404, 405. The prac- 
 tice, however, is perfectly well settled as 
 stated in the text. C. S. G., and see 1 
 Stark. Ev. 169, 170.
 
 CHAP. V. § II.] Examination of Witnesses. 559 
 
 themselves. A witness who was present at the time of the appre- 
 hension of the plaintiff by the defendant, was asked whether he had 
 not used certain expressions in a conversation which then took 
 place between the plaintiff and defendant, which he denied ; and 
 Erskine, J., held that a person who was called to prove that the 
 witness had said what he had denied could not be examined by 
 the counsel reading from his brief the very words which the witness 
 had so denied having used, but that the examination must proceed 
 in the usual way by asking what had passed. (5^) Where one wit- 
 ness has given an account of what a prisoner has said on a par- 
 ticular occasion, and another is called for the prisoner to give a 
 different account, the proper course is to call upon him to give his 
 version of the matter ; and when he has done so, then to ask him 
 whether this or that expression has been used ; for this is not like 
 the case of a proposed contradiction, where a witness has denied 
 that certain specific words were used, (a) 
 
 If a witness should appear to be in the interest of the opposite Leading an 
 party, or unwilling to give evidence, the Court may deem it right adverse wit- 
 to relax the rule against leading questions, and allow the examina- °^^^' 
 tion in chief to assume something of the form of a cross-examination. 
 It is entirely in the discretion of the judge to determine how far 
 he will allow the examination in chief to be by leading questions. (6) 
 And where an issue had been directed by the Court of Chancery, 
 with power to examine the parties. Best, C. J., held that the de- 
 fendant stood in a situation which of necessity made him adverse 
 to the plaintiff, by wliom he was called, and that the counsel for the 
 plaintiff might, as a matter of right, cross-examine him. (c) But 
 in general, the fact of a witness being an unwilling or adverse 
 witness is to be ascertained by the nature of his evidence, his 
 manner of answering, and demeanour, before the unrestricted power 
 of leading can be given; it is not enough, for instance, in a prose- 
 cution, that the witness is intimate with the prisonei", or that he 
 has been informed against by the prosecutor, to justify the counsel 
 in beginning at once witli the cross-examination. (</) 
 
 After the examination in chief is closed, the other party is at Cross-cxami- 
 liberty to proceed to cross-examination, Avithout regard generally nation, 
 to the rule restricting examinations in chief in respect to leading 
 questions. 
 
 (2) Hallett V. Couseiis, 2 ]\[. k Rob. contradicted the prosocutor as to the fact 
 
 238. of tlie ]iiisouer liaving been at her liousc 
 
 (a) Reg. r. FussuU, 3 Cox, L'. C. 291. on the iiif,'iit wiicii tlie olfcncp was coni- 
 
 Wilde, C. J., Maulc, J., and Paike, B. niittiHl, anil it ajiiicared tliat slie was in- 
 
 {h) 2 rhill. Ev. 403. In I'astin v. tiniatfly ai'i(iiainti'd with tlio prisoner, 
 
 Carow, R. & M. N. P. R. 127, Abbott, and tliat the innsccntor liad informed 
 
 C J., allowed the cro.ss-exainination of against iicr for keeping her bierhousc 
 
 an adverse witness, and said, ' 1 in(!an to open at improper lionrs ; and on it.s being 
 
 decide this, and no further — that in each sul)mitted tliat these facts raised such an 
 
 particular case there must be some dis- inference of liostility t<iwards the prosc- 
 
 cretion in the presiding judge as to IIk; cutor, and of bias in favour of the jiri- 
 
 niode in which the examination sliall be soner, as to cntitk" tlie counsel for the 
 
 conducted, in order best to answer the ])rosecution toeross-examineher ; F'rskinc, 
 
 purposes of justice.' Reg. r. Chapman, 8 J., said, '1 think that the situation in 
 
 C. & P. 558, Lord Abingcr, ( '. 15. Keg. v. which this witness .stands towards either 
 
 Murphy, 8 C. & P. 21)7, Coleridge, J. party, does not give the party calling the 
 
 (c) Clarke V. Saffcry, R. & M. N. P. H. witness a right to cross-examine her, 
 126. unless her evidence was of itself of sucli a 
 
 (d) 2 Phill. Ev. 401, citing Reg. r. nature as to make it appear that she 
 Ball, 8 C. & P. 745, where a witness was an unwilling witness.' 
 
 called on the part of the prosecution
 
 560 
 
 Leading (|iirH- 
 tioiiH ill croHH- 
 oxaniination. 
 
 Of Evidence. 
 
 [book vt. 
 
 What may be 
 asked on 
 cross-exami- 
 nation. 
 
 If tlio wittioss lictrays a zoal af,^a^nst the cross-cxaminirif^ party, 
 or shows an uii\villin<,ni('.s.s to speak fairly and impartially, he cannot, 
 it should seem, be led too much, (e) But where the witness on 
 the other hand discovers an anxiety to sei^ve the cross-examining 
 party, although the courts do not usually exclude the counsel, on 
 cross-exaniinaticn, from puttin<( leadin*,' (juestions, it is obvious that 
 evidence so obtained is very unsatisfactory, and is open to much 
 observation. (/) And although the witness may bo led on cross- 
 examination to bring him directly to the point as to the answer, 
 yet if he has betrayed an inclination to lean, and be favourable to 
 the cross-examining party, it is not allowable to go the length of 
 putting into the witness's mouth the very words which he is to 
 echo back, (r/) But the practice has generally been to put leading 
 questions in cross-examination to a witness, whether willing or 
 adverse ; and where a counsel was putting leading questions in the 
 usual way to a witness who appeared favourable to the side of the 
 counsel who was cross-examining him, and this was objected to ; 
 Alderson, B., said, 'I apprehend that you may put a leading question 
 to an unwilling witness on the examination in chief at the discre- 
 tion of the judge; but you may always put a loading question in 
 cross-examination, whether a witness be unwilling or not.' (It) 
 
 A witness cannot be asked, upon cro.ss-examination, except for 
 the purpose of impeaching his credit, questions which are not in 
 any way relevant to the matters in issue ; (i) the subject of cross- 
 examining for the purpose of impeaching his credit will per- 
 haps be more conveniently discussed in a subsequent section, (/)in 
 which place (A;) will also be considered the obligation of a witness 
 to answer questions tending to subject him to a criminal prosecu- 
 tion, or degrading to his character. It is, however, proper to 
 mention in this place how far a witness is compellable to answer 
 a question, whereby he may subject himself to a civil action, or 
 charge himself with a debt. Considerable doubts had been enter- 
 tained upon this subject, before the 46 Geo. 3, c. 37 ; for the settle- 
 ment of which it was thereby declared and enacted, that a witness 
 cannot by law refuse to answer any (question relevant to the matter 
 in issue (the answering of which has no tendency to expose him to 
 a penalty or furfeiturc of any nature whatsoever) by reason only, 
 and on the sole ground that the answering such questions may 
 establish, or tend to establish, that he owes a debt, or is otherwise 
 subject to a civil suit, either at the instance of his Majesty, or any 
 other persons. {I) It seems a witness is still privileged from an- 
 
 (c) 2 rhUl. Ev. 406. 
 
 (/) Jlr. Starkie, in his Treatise on 
 Evidence, vol. 1, p. 197, mentions that 
 he has heard Lord Tenterden express 
 liiniself to this ettect more than once. 
 
 (;/) By lluHer, .1., in Hardy's ca.se, 24 
 How. St. Tr. 755, referring to a rule laid 
 down on the day before by Eyre, C. J., to 
 the same effect. 
 
 (h) Parkin r. Moon, 7 C. & P. 408. 
 
 (i) A cross-examination as to a fact 
 otherwise irrelevant, is not waiTanted by 
 the circumstance that the adverse counsel 
 opened it, without any attempt at proof. 
 Lucas r. Novosilieski, 1 Esp. N. P. C. 
 296. 
 
 U) Sec. 3. 
 
 (k) Post, p. 575. 
 
 (0 See K. r. Wobum, 10 East, 395. 2 
 Phill. Ev. 420. There is a distinction 
 between the obligation of a witness, since 
 this statute, to answer (Questions, though 
 they may subject him to civil suits ; and 
 his obligation to protluce writings, &c., 
 under a suhvana diurs tecum. For if a 
 snbucena diicc^i tecum is served, the j>arty 
 must bring his deeds into court in 
 obedience to the subp«Tna, although, if 
 he states that they are his title deeds, no 
 judge will ever compel him to produce 
 them. Pickering v. Noyes, 1 B. & C. 
 263.
 
 CHAP. V. § II.] Examinatio7i of Witnesses. 
 
 swering any question, the answer to which might subject him to a 
 forfeiture of his estate, {in) 
 
 Counsel upon cross-examination cannot assume that the witness 
 has made an assertion in his examination in chief, which was not 
 in fact made, (ii) or put a question which assumes a fact not in 
 proof, (o) 
 
 It is not allowahle upon cross-examination to ask a witness, 
 except with respect to previous statements in writing made ])y him, 
 as to tlie contents of written instruments, (p) although they are 
 shown to be in the possession of the opposite party, and notice has 
 been given to the opposite party to produce them, {q) Under what 
 circumstances a cross-examination as to the contents of a written 
 document, for the purpose of impeaching the credit of a witness, 
 is allowable, will be considered hereafter in the third section of 
 this cliapter. [r) 
 
 Upon the trial of Kroeld, Gibson, and Koecli, {s) for a con- 
 spiracy, where the three defendants defended separately, Koech 
 alone called witnesses, and examined to a conversation between 
 himself aiicl Kroehl. The counsel for the prosecution was pro- 
 ceeding to cross-examine as to another conversation between Koech 
 and Kroehl, when the counsel for the prisoner Kroehl objected, 
 on the ground, that the effect might be to bring out a new case 
 against Kroehl, although he had called no Avitnesses, and after the 
 case for the Crown was finished ; but Abbott, J., said, that as 
 Koech had called witnesses, he could not prevent the cross-exa- 
 mination as to any conversations that might affect Koech. It 
 miglit be a matter for future consideration whether the counsel 
 for Kroehl, after such evidence, would have a right to address the 
 jury upon it. 
 
 Woods and May were indicted for manslaughter, and separately 
 defended ; the counsel for Woods addressed the jury, but called no 
 witness, and then the counsel for May addressed the jury and 
 called witnesses, who threw the blame on Woods ; and it was 
 held tliat the counsel for Woods should be allowed not only to 
 cross-examine May's witnesses, but again to address the jur}'. 
 The proper course was for Woods' counsel to cross-examine first 
 the counsel for the prosecution next, and the counsel for May to 
 re-examine. At the close of the evidence, Woods' counsel would 
 address the jury, confining himself strictly to the evidence ail- 
 duced for May, and then the counsel for the prosecution would 
 reply generally, {t) So where Burdett and Luck were tried for 
 stealing wood, and in the course of the defence of Luck, Cox was 
 called as a witness on his behalf, with a view of showing that Luck 
 was an innocent agent in taking the wood, and in .so doing Cox 
 
 561 
 
 Assumptions 
 not allowable 
 in cross-ex- 
 amination. 
 
 Cross-exami- 
 nation as to 
 written instru- 
 ments. 
 
 Cross-exami- 
 nation of wit- 
 ness called by 
 one of several 
 defendants 
 alone. 
 
 Wlicrc one 
 prisoner calls 
 witnesses who 
 incriminate 
 anotlicr pri- 
 soner, tlie 
 latter is en- 
 titled to crass- 
 exam ine such 
 witnesses, and 
 in address tho 
 jury again on 
 tliuir evidence. 
 
 (»i) 1 riiill. Ev. 2Gi. Jlay v. Hawkins, 
 21 L. J. E.\. 30!i; 11 Ex. 210. ChcstiT 
 V. Wortley, 25 L. J. C. W 117. 
 
 {n) Hill V. Cooiube, cor. Abbott, J., 
 ]\Iaimiii<('.s Digest, tit. IFllmim, pi. 236. 
 
 (o) Dou ?'. Wood, cw. Abbott, .1., ibid, 
 pi. 237. The ubjcctiun was iVdiui-ntly 
 taken and allowed during the i)rooc('dings 
 in tli(; IIousL' of Lords in tlie (Queen's 
 case. See the printed evidence. 
 
 {2>) Saiuthill v. Bound, 4 Esp. 74. 
 Howell t'. Lock, 2 Campb. 14. See post, 
 p. .581. 
 
 vol.. III. 
 
 (q) Graham r. Dystcr, 2 Stark. N. P. 
 C. 23. Sideway.s v. i)y>oii, ibid. 4J». A 
 witness may be lusked a.s to tlic contents 
 of a written document, if tlio {larty exa- 
 mining is in a ])osition to give secondary 
 evidence of its eonteuts. 
 
 (r) Post, p. 6 SO. 
 
 (.s) 2 Stark. N. V. C. 343. 
 
 (/) Keg. >\ Wocls, (J Cox, V. t". 224. 
 The Recorder, after consulting Cre.sswell, 
 J., and Williams, J. Sec R. r. Copley, 
 4 F. & F. 10117.
 
 nllli 
 
 Of Evidence. 
 
 [hook VI. 
 
 Who n»ay l)0 
 
 cniss-cxa- 
 
 miuci.1. 
 
 Calliiii,' wit- 
 nesses wliosc 
 names are on 
 the hack of 
 the imlict- 
 uicnt. 
 
 gavo evidence teiuliiif^ to fiiinii);ite I'linlett; Bunlett's counsel 
 claiiiieil i\u' rij^'lit, of cross-cxjiiiiiniii;^' Cox, and then ad(ln;s.sing the 
 jury upon liis evidcnre ; but the sessions n^fused ])ijrniission to 
 cross-examine and ad(h"ess the jury, but oH'ered to put through the 
 ehainnan such questions as Burdett's counsel suf,'gcstcd ; it was 
 held, on a case reserved, that, in tliis particular case, the counsel 
 I'di Durdett had a right to cross-examine Cox, and to cross-examine 
 him without doing so through the Court, and had also a right to 
 re])ly on his evidence. But the Court must not be understood as 
 saying that he would have had that right if the evidence of Cox 
 had not tended to criminate him. AH the Court decideil was, that 
 in this particular case the course taken was wrong, (u) 
 
 If a witness be called merely for the purpose of producing a 
 written instrument, he need not be sworn, and, unless sworn, lie is 
 not subject to cross-examination, (r) If a witness be called, 
 though it l)c through necessity, for the purpose of the mere formal 
 proof of a document, this makes him a witness for all purposes, 
 and he may be cro.ss-cxamined as to the whole of the case, (if) If a 
 witness be called under a mistake, and the mistake be discovered 
 before any question is put to him by the coun.sel who calls him, be 
 is not liable to cross-examination, although he has been sworn, (x) 
 Where a witness being sworn was avsked only one immaterial 
 question, and his evidence stopped by the judge, it was held that 
 the opposite party had no right to cross-examine him. (?/) 
 
 It is fully settled that the counsel for the prosecution are not 
 bound to call every witness whose name is on the back of the in- 
 dictment, {z) but may call what witnesses they think proper, (a) 
 The prosecutor, howevei*, ought to cause the witnesses to be 
 present in coui't, because the prisoner may have neglected to bring 
 them himself in consequence of their names being on the back of 
 the bill, (b) It was formerly the practice, where the counsel for 
 the prosecution did not call a witness whose name was on the back 
 of the bill, for the judge to call the witness, in order that he might 
 be cross-examined by the prisoner in the same way as if he had 
 been called by the counsel for the prosecution ; (c) but it is now 
 
 {>() Kog. r. 15urdi'tt, Dears. C. C. 431. 
 Sec Beale r. Mouls, 1 C. & K. 1. On the 
 same ground it would seem that one pri- 
 soner might call witnesses to contra- 
 dict the witnesses called for another 
 prisoner, if their evidence criminated 
 him. 
 
 (v) Simpson r. Smith, 2 Hull. Ev. 397. 
 See also Davis v. Dale, II. & M. 514. 
 Evans v. Moseley, 2 Dowl. P. K. 364. 
 Peny v. Gibson, 1 A. & E. 48. Summers 
 V. Moseley, 4 Tyrw. 158. \\cxv. Murlis, 
 M. & Mai. 515.' 
 
 {w) Morgan v. Bryilgcs, 2 Stark. N. V. 
 C. 314. But see Piiillipps r. Earner, 1 
 Esp. 356. See Reed r. James, 1 Stark. 
 N. P. C. 132. 
 
 (x) Wood ('. Mackinson, 2 M. & Hob. 
 273. Kush V. Smyth, 4 Tyrw. 675. 1 
 C. M. & R. 94. Clitlord v. Hunter, 3 
 C. k P. 16. Re.x r. Brooke, 2 Stark. N. 
 P. C. 472. 
 
 (y) Creevy r. Carr, 7 C & P. 64, (Uir- 
 ney, B. 
 
 (z) Pveg. r. "Woodhead, 2 C. & K. 52n, 
 Dec. 1847, where Alderson, B., said, the 
 judges had laid down this as a rule. Keg. 
 V. Edwards, 3 Cox, C. C. 82. Erie, J. 
 A. II. 1848. Reg. V. Cassidy, 1 F. & F. 
 79, March 1858. Parke, B., after con- 
 sulting Cresswell, J. 
 
 (a) Reg. V. Cassidy, supra. Keg. v. 
 Edwards, supra. 
 
 (b) Reg. V. AVoodhead, supra. Reg. 
 V. Cassidy, supra. 
 
 (c) Rex V. Simmonds, 1 C. & P. 84. 
 Hullock, B. Rex v. Whitbread, ibid. 
 note (a). Reg. i: Bull, 9 C. & P. 22. In 
 Rex V. Beezley, 4 C. & P. 220, Little- 
 dale .said that the counsel for the prose- 
 cution ought to call all the witnesses on 
 the back of the bill ; and in many cases 
 on the Oxford Circuit learned judges 
 have directed the counsel for the prose- 
 cution to call every witness on the back 
 of tlie bill, and it has been treated as if 
 the counsel for the prisoner had a right 
 to have them all called by the counsel for
 
 CHAP. 
 
 V. § II.] Examination of Witnesses. 
 
 563 
 
 settled that where a witness who is not called by the counsel for 
 the prosecution is called by the prisoner, he must be considered his 
 witness, as much as those subpoenaed and called by him. (Vi) As 
 the witness is the prisoner's witness, it follows that the counsel for 
 the Crown may impeach his evidence in the same manner as if he 
 had been subpoenaed and called by the prisoner, (e) 
 
 A witness whose evidence is relevant, may be called by the Calling a wit- 
 prosecution, although he has not been before the mafristrates, and ^^^^ "°*' '"^^'"■° 
 although his name and the substance of his evidence has not been 
 given to the prisoner or his attorney. (/) 
 
 the magistrate 
 
 the Crown, in order to enable liini to 
 cross-examine them. Indeed, the cases 
 have i^one further than this ; as it has 
 been held on several occasions that wit- 
 nesses, not on the back of the bill, but 
 who were acquainted with the facts of 
 the case, ought to be called on the part 
 of the prosecution. In Reg. v. Holden, 
 8 C. & P. 60G, on an indictiiumt for mur- 
 der, Patteson, J., directed the daughter 
 of the deceased, whoso name was not on 
 the back of the indictment, to be called, 
 saying, ' every witness who was present 
 at a transaction of this sort ought to be 
 called, and even if they give different ac- 
 counts, it is fit that tlie jury should liear 
 their evidence, so as to draw their own 
 conclusion as to the real truth of the 
 matter.' And in the same case, it ap- 
 j)earing that there had been a imst mortem 
 examination of the body of the deceased 
 by a surgeon who was examined, and 
 another surgeon who was in court, and 
 that there was some difference of o))iniou 
 as to the cause of the death ; Patteson, J., 
 said, ' As tile surgeon is in court, i shall 
 insist upon his being examined. He is a 
 material witness, who is not called on the 
 part of the prosecution ; and as he is in 
 court, I shall call him for the furtherance 
 of justice.' And he was called and exa- 
 mined by the learned judge. In Keg. v. 
 Chapman, 8 C. & P. ,558, Jjord Abinger, 
 C. 11, directed tiie name of the brother 
 of the prisoner, who was present at the 
 time when the murder was alleged to 
 have been committed, to remain on the 
 back of the l)ill, and said, the counstd 
 for the prosecution would best discharge 
 his duty 1)V calling him as a witnrss on 
 the trial. See also Peg. v. Orchard, ibid, 
 note (//). in l!ex v. Stroner, 1 C. & K. 
 05(1, Mairh 1845, the pro.secutrix, on a 
 trial for rape, stated that she imme- 
 diately complained to her mistress, and 
 that her clothes were afterwards washed 
 by a wom;in, and neither of these per- 
 sons were Ijound over to give cviileiice, 
 and their luunes were not on the back of 
 the indictment ; but both were attend- 
 ing as witnesses for the jirisoner ; and 
 Pollock, C. B., held that tliey must be 
 both called for the prosecution, but that 
 the counsi^l for tht^ prosecution must be 
 allowed every latitude in examining them. 
 In Rex V. l?odle, (i C. k \\ ISri, Gaselec. 
 .1., ami Vaughan, P., held that it was in 
 
 the discretion of the judge whether a wit- 
 ness whose name is on the back of tlie 
 indictment should be called for the pri- 
 soner's counsel to examine him before the 
 prisoner was called on for his defence ; 
 and the father of the prisoner having been 
 examined before the coroner, and bound 
 over to give evidence at the assi/es 
 against the prisoner for murder, the 
 learned judges held that the father ought 
 to be called ; and he was called, and 
 asked as to statements he had made 
 respecting the murder, with a view of 
 discrediting and contradicting him, and 
 thereby laising a .suspicion that the wit- 
 ness might have committed the murder 
 himself; ami it was held that as the father 
 had not been examined by the counsel 
 for the prosecution, and had been only 
 called at the instance of the counsel for 
 the ])risoner, the latter could not be 
 allowed to call witness to contradict liim 
 as to the dilferent accounts he had given 
 respecting the n\urder. In Reg. v. Vin- 
 cent, 9 C. & P. 91, Alderson, B., held 
 that the calling such a witness in felony 
 was discretionary, but it was a discretion 
 always exercised, and he tiiought it 
 might well be exercised in a case of 
 misdemeanor. C. S. G. 
 
 {d) Heg V. Cassidy, supra. Reg. v. 
 AVoodhead, supra. The following cases, 
 therefore, cannot lie considered autho- 
 rities any longer. Reg. v. llarley, 2 
 Cox, 191, where Pollock, C. K, at'ter 
 consulting Coleridge, J., insisted on tlic 
 couns(d for tlie Crown calling witnesses 
 on the back of the bill. The dii-tuni 
 of Alderson, B., that it was the iluty of 
 the prosecutor to put an adverse witiies.s 
 in the box, in lleg. i\ Carpenter, 1 Cox, 
 C. C. 7-2. I{ex V. Bcc/.ley, 4 C. & P. '220, 
 where I.itlledale. J., Iieiil that the coun- 
 s(d for the Crown was coiiliiK-d to ques- 
 tions which arose out of tlie cross-exami- 
 nation iif a witness whom he liatl directed 
 to lie called. Rex v. Harris, 7 C. * V. 
 5S1, as far as it may teiul to show tlial 
 where llu^ witness is called by the juilgo, 
 the counsel for the Crown lias no right to 
 examine him. 
 
 (c) Keg. V. Woodhead, si'pm, per .VI- 
 dcrson, H. 
 
 (/) R. r. Greenslade, 11 Cox, C. C. 
 412. Reg. r. Piotro Stiginani (10 Cox, 
 Criiu. Gas.) overrule.l.
 
 504 
 
 WitiicsB of oiic 
 parly nftii- 
 wiinls cilli'il 
 liy tlic iitlnT. 
 
 ( >/ J'jnldence. 
 
 [B(J(JK VI. 
 
 Witncs;-! re- 
 called by Ihy 
 jiulgc. 
 
 Rc-cxaminrx- 
 tioa. 
 
 E\i<lcnce in 
 reply uiust be 
 confined to tlie 
 contradiction 
 of the evidence 
 for the de- 
 fence. 
 
 It is icpnrtcd to liavc been i iiled by Loitl Kcnyou, {(j) that 
 wlicrc .'i witness has been exriniiiicd by one party, and cross- 
 examined l)y the otlicr, and th(.' latter has ai'terwards occasion to 
 call the same witness back as part of his own case, the privilege of 
 cross-examination continues, and leading (juestions may lie put to 
 him. But it has been very projjerly remarked, (/t) tiiat the mode 
 of examination under such circumstances is in truth regulated, 
 according to the disposition and temper manifested by the witnes.s, 
 by the discretion of the presiding judge, (i) 
 
 Where on an indictment for l)urglary, there was no counsel for 
 the Crown, Taunton, J., after the examination of witnesses to 
 facts on the part of the prisoners, recalled a witness for the prosecu- 
 tion, and then, addressing the prisoner's counsel, inquired if he 
 liad any cpiestion to ask upon it, saying, that, although he as 
 judge had recalled the witness for the purposes of justice, he 
 thought it right that the prisoner's counsel .should have the oppor- 
 tunity of cross-examining the w'itness again, {k) 
 
 The object of re-examining a witness being merely to exjjlain the 
 facts stated by tlic Avitness on cross-examination, he cannot be re- 
 examined as to any facts unconnected with it ; but if any material 
 question has been omitted in the examination in chief, the practice 
 is to suggest it to the Court, who will put it to the witness, or de- 
 cline to do so, at its discretion. {I) 
 
 After the close of the case for the defendant, the general rule i.s, 
 that the evidence in reply must bear directly or indirectl}' upon the 
 subject matter of the defence, and ought not to consist of new 
 matter unconnected with the defence, and not tending to contro- 
 vert or dispute it. {m) This is the general rule, made for the pur- 
 pose of i^reveuting confusion, embarrassment, and waste of time ; 
 but it rests entirely in the discretion of tlie judge Avhether it 
 ought to be strictly enforced or remitted, as he ma}' think best for 
 the discovery of truth and the administration of justice, {n) 
 
 Where on au indictment for larceny, the case for the Crown 
 rested merely on the fact of the stolen property being found in the 
 house of the prisoner soon after it was lost, and a witness for the 
 defence proved that the prisoner bought the property from a third 
 person, who was called by the counsel for the Crown to prove not 
 only that the prisoner did not buy the property of him, but that 
 he saw the prisoner steal it ; it was held that his evidence was 
 only admissible as far as it went to destroy the case set up on the 
 part of the prisoner, that is, to show that the prisoner did not buy 
 the property of him. (o) So where the defence of the prisoners was 
 an alibi, viz., that they were at a public-house, a considerable 
 distance from where the offence was committed, and it was pro- 
 posed on the part of the Crown to prove in reply that the prisoners 
 were seen near the spot at which the robbery was committed, and 
 
 (17) Dickinson v. Shoe, 4 Esp. 67. 
 
 {h) 1 Stark. Ev. 188. 
 
 ( i) See also the observations of Ab- 
 bott, C. .T , in Ba.sten r. Carew, \\y. &. 
 Mood. N. r. C. 1-27. 
 
 {k) Rex »•. Watson, 6 C. & P. 653. 
 
 {I) '2 riiill. Ev. 408. See pout, \\ 590, 
 as to re-examining a witness who has 
 been cross-examined respecting his former 
 
 statements and declarations. 
 
 (»i) 2 Phill. Ev. 408. 
 
 ()t) Ibid. 
 
 (o) Rex r. Stinipson, 2 C. & P. 415, 
 Garrow, B. J[r. Phillipps observes, 'This 
 was carrying the rule ver}- far, as the ftict 
 of seeing the prisoner steal the goods 
 would be strong evidence that he did not 
 buy them.' 2 Phill. Ev. 410.
 
 CHAP. V. § i[.] Examination of Witnesses. 5C5 
 
 that, therefore, they could not have been in the public-house ; 
 Taunton, J., rejected the evidence, saying, 'Proving that the 
 parties were near the place at which the offence was committed 
 is evidence in chief, and not evidence in reply. Whatever is a 
 confirmation of the original case cannot be given as evidence in 
 reply ; and the only evidence which can be given as evidence in 
 reply, is that which goes to cut down the case on the part of the 
 defence, without being any confirmation of the case on the part of 
 the prosecution.' ( i)) But where on a similar indictment a similar 
 defence was set up, Alder.son, B., permitted a jaerson Avho had been 
 robbed on the road near the place where the prosecutor was robbed, 
 to prove not only that he saw the prisoner there, but the whole 
 circumstances under which he met the prisoner, {q) And so wliere 
 in an action for an injury occasioned by tiie defeudant thrcjugh 
 negligently driving a carriage, the plaintiff's witnesses described 
 the carriage as having been driven by the defendant when the 
 accident occurred at Layton, and other witnesses spoke to the 
 defendant having been seen in the neighbourhood of Layton al^out 
 the time in question ; and the defendant called witnesses to prove 
 that, at the time in question, he was at Richmond, and the 
 plaintiff then tendered other witnesses to show that the defendant 
 was not at Richmond, but at Layton ; Lord Denman, C J., held 
 that it would perhaps have been more correct had the plaintiff, in 
 the first instance, called the witnesses then tendered, but he did 
 not think that he could, even at this period of the cause, exclude 
 the evidence from the jury, which certainly went to contradict the 
 defendant's alibi, (r) And where on an indictment for horse 
 stealing the defence was an alibi, which went to show that the 
 prisoner, on the 7th and 8th of March, was at places many miles 
 from the place were the horses were stolen, and on the 9th re- 
 turned home ; Tindal, C. J., permitted a witness to be called to 
 prove that the prisoner, when taken into custody on the 10th of 
 March, said that he had been at home ever since the Wednesday 
 before, (n) 
 
 Where on a trial for robbery the pro.secutor proved that he liud A stAtemcntof 
 lost a large quantity of blood from his head, and that his assailant reply to*til<l "* 
 had jout his arm round his neck, and the prisoner's coat appeared prisoner's wit- 
 to have been recently stained with blood on the collar and sleeve ; ness. 
 and the prisoner called a witness, who swore that on the day before 
 the robbery he had observed that the prisoner's coat was bloody, 
 and that the prisoner had told him the blood had liowed froir. 
 a hare which ho had carried over his shoulder ; it was held that 
 the statement of the prisoner before the magistrate, in which he 
 had given a different account of the marks of l)lood, was admissible 
 in re]jly to the evidence given by the prisoner. (/) 
 
 (p) Tlcx V. Hildit.li, r, ('. & r. ^n;). p. 370, ft soj. c. s. c. 
 
 {>/) llvii. r. I•.l•iJ,'.^'s, 2 M. & lliil.. 19'.). (r) Hrig^s '■• Ayiiswortli, 2 M. & Hob. 
 
 lic.x r. liiMitcli (Iocs not aiipciir to havo 108. Sec u K'uriH'il noto to tliis ciisc l>v 
 
 hcen citcil in this r.iso. It may havi? tlio rc]>oil<M~i. .Vinl sw Reg. r. Fmst, 'J 
 
 liocu thoui^lit in this case- that the cvi- C. & 1'. 1 ">'•*. 
 
 deuce of the secoml lobhi'ry was not (s) Ilex r. Fiinlon, f. & P. 132. 
 
 essential on the part of the prosecution (0 Keg. v. Wiiite, 2 Cox, C C. 102. 
 
 until the alihi was set up, ami that that Pollock, C". H., after consulting Cole- 
 
 rendered the proof of the second robhery ridge, .J. 
 essential. Sec the cases collected ''/(^•,
 
 ICviilonco in 
 r(!|ily, wlioro 
 
 liUHOCil WftH 
 
 iiiixcil with 
 
 ciKiir. 
 
 Of Evidence. 
 
 [liOOK V). 
 
 Uejily cdiu- 
 iiiciux'tl liefore 
 putting in 
 evidence. 
 
 It is in tlio 
 discretion of 
 tlio Court to 
 admit evi- 
 dence in reply. 
 
 Examination 
 of witnesses 
 generally, with 
 reference to 
 written docu- 
 ments. 
 
 Written in- 
 struments used 
 to rcfresli the 
 memory. 
 
 WIicii: the |)I;iiii(in" l)roii<flit an action again.st the (l<-fon(lant for 
 imprison in;4' liur on a false charge of stealing cliaff, which was found 
 in her drawer, and two witnes.ses called by tlio plaintiff stated that 
 tliey had sold her chaff similar to tliat found in her drawer, and 
 Ihi; (K'fendant's witnesses pointed (Mit marks showing that the chaff 
 found in the plaintiff's drawer corresponded with that belonging 
 to the drfcndant, nnd mentioned in particular that linseed was 
 mixi'd wilji the chaff, which was said to bo unusual ; it was held 
 (hat the plaintiff might prove in reply that linseed mixed ^v^th 
 chaff liad been previou.sly sent to the plaintiff, (u) 
 
 Where the counsel for the Crown has, ycr Incur lo/ni, omitted to 
 put in a piece of evidence before commencing his reply, and the 
 course of justice might be interfered with if the evidence were not 
 given, the Court may permit the evidence to be given, {v) 
 
 The question whether any particular evidence ought to be ad- 
 mitted in reply, rests in the discretion of the Court, which will be 
 exercised with a view to attain the ends of ju.stice according to the 
 circumstances of the case, {w) 
 
 It has already been remarked that a witness, except with respect 
 to previous statements in writing made by him, cannot be cros.s- 
 examined as to a written document in the possession of the party 
 who calls him ; (x) and the rule is general, that a witness cannot 
 either be examined in chief or cross-examined as to the contents of 
 a written document, not produced, unless the party examining or 
 cross-examining is in a position to give secondary evidence of its 
 contents, {y) 
 
 Where, in order to prove the taking of a tenement, a witness 
 produced a book containing an entry made by him of the terms of 
 the taking, and stated that he had no memory of them but from 
 the book, without which he should not of his own knowledge 
 be able to speak to the facts, but on reading the entry he had no 
 doubt that the facts really happened ; the Court held that the 
 witness might look at the entry to refresh his memory, and give 
 parol evidence of the letting, (s) So where a receipt for money 
 has been given on unstamped paper, it may be used by the witness, 
 who saw it given, to refresh his memory, (a) And where a witness, 
 who had received money and given a receipt for it, which could 
 not be read in evidence for want of a proper stamp, had become 
 blind, the receipt was allowed by Abbott, C. J., to be read over to 
 him in court (he being informed that the paper was in his hand- 
 writing) in order to refresh his memory. (6) So to prove an act of 
 bankruptcy committed some years back, a deposition made at the 
 time by an aged witness was allowed by Lord Ken3^on to be read 
 to him for the same purpose, (t) And where a witness was un- 
 certain whether an execution was put in on the 4th or 5th of May, 
 Tindal, C. J., on the authority of the preceding case, allowed his 
 
 (h) Wright V. "Willcox, 9 C. R. 650. 
 
 (i?) IJeg. V. White, 2 Cox, C. C. 19-2. 
 See this case, anlf, p. 510. 
 
 (w) Doe dem NicoU v. Bower, 16 (J. B. 
 805. Wriglit J'. Willcox, 9 C. B. 650. 
 
 (x) Anh\ p. 561. 
 
 (y) See Jleyer v. Sefton, 2 Stark. N. 
 P. C. 276. i'loherts r. Doxou, Peake, 
 N. P. C. 83. 
 
 (z) Rexr. St. Martin's, Leicester, 2 A. 
 & E. 210. The entry was made at th 
 time of the taking. 
 
 (a) Kambert v. Cohen, 4 Esp. 213. 
 
 (i) Catt r. Howard, 3 Stark. N. P. C. 
 3. Sec also Jacob v. Lindsay, 1 East, 
 460. 
 
 (c) Vaughan v. Martin, 1 Esp. X. P. C. 
 440.
 
 CHAP. V. § II.] Examination of Witnesses. 
 
 deposition, which had been made before the Commissioners of 
 Bankruptcy on the 12th of the same month, to be used by the wit- 
 ness, to refresh his memory as to the date of the execution, (d) 
 
 So where a deed bore date the 20th of June, and a witness could 
 not recollect whether it was executed on the day of the date or 
 not ; Pollock, C. B., held that his examination taken on the 3rd of 
 July, whilst the facts stated in it were fresh in his memory, and 
 which was not in his handwriting, but was signed by liim, might be 
 used to refresh his memory, (e) But a witness cannot refresh liis 
 memory by such depositions, if they are not taken contemporane- 
 ously, or nearly so, with the matters to which they relate. (/) 
 
 With regard to depositions in criminal cases, it has been held 
 that they are not available for the purpose of refreshing the me- 
 mory of a witness, (g) unless they are used for that purpose with 
 the sanction of the court, {/i) 
 
 The general rule is, that a witness, to assist his memory, may 
 use a written entry, if it were made by himself shortly after the 
 occurrence of the facts to which it relates ; but if he cannot speak 
 to the fact from recollection, any further than as finding it entered 
 in a book or paper, such book or paper ought to be produced, and if 
 not evidence, the testimony of the witness amounts to nothing. (/) 
 Although in general the entries ought to have been made by tlie 
 witness himself, yet if another wrote them, and the witness regu- 
 larl}^ examined them from time to time, soon after they were 
 written, and while the facts stated in them were fresh in his recol- 
 lection, he may refresh his memory by referring to them, as if he 
 had written them witli his own hand, (j) Where, tlierefore, a wit- 
 ness had attended Chartist meetings for the purpose of obtamiug 
 information and communicating it to the government, and within 
 two hours after each meeting he detailed sucii information to an 
 inspector, who took it down from Ins dictation, and some of the 
 accounts were read over to him and some he read over himself, and 
 he often saw what the inspector wrote, but did not see all, and he 
 signed all the papers ; and the inspector proved that he took ilown 
 what the witness said as nearly as possible, and read the whole 
 over to the witness; it was held that the witness might refresh his 
 
 5G7 
 
 Depcsitions in 
 criminal cases. 
 
 Rule as to 
 memorandum 
 to refresh tlio 
 memory. 
 
 (d) Smith V. Mor^'an, 2 M. & Kob. 
 257. But Timlal, C. J., refused to 
 allow the witness to look at jiiore than 
 the date of the transaction, as to which 
 he was uncertain ; as it would be Icad- 
 inp; a witness too nuich to attcnijit to 
 bind him down to all tliat he had thus 
 said. 
 
 (c) Wood V. Cooper, 1 C. & K. 645. 
 
 (/) Whitfield V. Alan.l, 2 C. & K. 
 1015, AVilde, C. J. No date is given in 
 this case. 
 
 ((/) llcg. V. Stokes, 4 Cox, C. C. 451, 
 William.s, J., saying, 'Tlie deposition is 
 not contem]ioraneous with the fai'ts de- 
 posed to, and does not fall within the 
 di'sci'i])tion of memoranda and entries 
 available for the puiposc of refreshijig a 
 witness's memory.' In this case it was 
 the counsel for the prisoner wiio pro- 
 posed so to use the depositions. In Keg. 
 V. Palmer, 5 t'ox, V. V. 23(), rolJock, 
 C. B., said, 'A deposition is not the wit- 
 
 ness's own memorandum, made by him 
 contemporaneously with tlie oc(urren<'0 
 of the facts stated there, but a narrative 
 taken down by somebody ei.se from a 
 statement sub.secpiently made by liim, 
 and, therefore, alth()UL;h very good evi- 
 dence for the ])urpose of contradicting 
 him, it dillers from the jirinciple of 
 the cases that relate to refresliing the 
 menmry. ' 
 
 (/() Keg. V. Williams, fox, C. (.'. 
 343, and other cases, antr, ji. 526. 
 
 (0 Doer. IVrkin.s, 3 T. Ik. r4li. Itecch 
 r. .loncs 5 ('. 15. CS't;. S. 1'. on theautlio- 
 ritv of Hoe r. I'erkins. See Henrj" v. 
 Lee, 2 (hit. Kcp. 124. 
 
 {j ) liurrough v. Martin, 2Cami)b. 112. 
 The entries were in n log-book. See 2 
 I'hill. Kv. 413, Duchess of Kingston'.s 
 case, 2n How. Sta. 'J'r. lilit. Liwes «'. 
 Keetl, 2 Lew. 152. Keg. v. rhillpolt.s, 
 5 Vox, C. C. 329. Keg. v. Bird, 6 Cox, 
 C. C. 11.
 
 508 Of Evidence. [book vi. 
 
 moinory by tlii-sc itapcrs. If lie coukl s.-iy lluit wlion liis mind was 
 so full of tile ciicniiistanccs, he asccrtuiiiod that the paper concctly 
 detailed them, it was immaterial wliether he ascertained it l)y look- 
 ing at the paper himself or by hearing it read over correctly by 
 another person. (/.) So where a captain ))r(j(hiced the ship's log, 
 which was written by tlie mate, who was absent, but lie had him- 
 self read the log about a week after it was written, when the 
 matters contained in it were fresh in his mind, and he then thought 
 it correct, it was held that he might refresh his memory \)y it. U) 
 So where an editor of a paper proved that an article on the wea- 
 ther liad been furnished by a gentleman, who was in the habit of 
 writing such articles for that paper, and tliat the manuscript could 
 not be found, and the writer stated that he had no recollection of 
 having furnished the particular article, but that the statements 
 contained in tiie articles he had furnished were invariably true ; it 
 was held that the article might be used for the purpose of refresh- 
 ing his memory, {m) But wdiere the witness neither recollects the 
 fact, nor the truth of the account in writing, and the writing was 
 not made by him, his testimony, so far as it is founded on the 
 written paper, would be objectionable as hearsay ; the witness 
 can be no more permitted to give evidence of his inference from 
 what a third person has written, than from what a third person has 
 said. (>?) 
 By a copy of It has been held that a witness will not be allowed to refresh his 
 
 a paper. memory with a copy of a paper, though the copy was made by him- 
 
 self, and though the writing might have been used for the purpose. 
 Thus it has been lield that a witness cannot refresh his memory by 
 a copy of an original memorandum, made by him six months after 
 he wrote the original, although the original was so covered witli 
 figures as to be illegible, (o) But it is said that in analogy to the 
 ordinary rules of documentary evidence, a copy may be used to re- 
 fresh the memory, on proof that the original is lost, {p) And two 
 cases are reported where it is said to have been held that a witness 
 might refresh his memory by a copy, {q) And where a memoran- 
 dum was made by a witness at the time on a rough piece of paper, 
 and he copied it out more neatly, it was held that he might refresh 
 *his memory by the copy. (/•) And where a clerk to a tradesman 
 entered the transactions in trade as they occurred into a Avaste- 
 
 (^•) l!cg. f. MuUins, 3 Cox, C. C. 520. from recollection swear any further than 
 
 Mault', J., and "Wiffhtman, J. as finding the matters entered in the 
 
 {D Anderson r. Whalley, 3 C. & K. 54. Look, then the original should have been 
 
 Talfourd, J. See Keg. v. Stokes, 4 Cox, produced. And Anonymous, 1 Lew. 101, 
 
 C. C. 4.51. where Bayley, J., is reported to have 
 
 (7ft) Topham r. !M'Gregor, 1 C. & K. held that a witness cannot give a copy of 
 
 320. Kolfe, B. a shop-Look in evidence to prove facts 
 
 in) 2 Phill. Ev. 413. contained in the shop-book, but if lie was 
 
 (o) Jones r. Stroud, 2 C. & P. 190, originally acquainted with the facts he 
 
 Best, C. J. might refer to such copy to refresh his 
 
 {})) 1 Stark. Ev. 179, and see 2 Phill. memor)-. 
 Ev. 4ir,. (r) Keg. v. Duffield, 5 Cox, C. C. 404. 
 
 ('/) Tminer r. Taylor, cited in Doe r. It is plain that where a copy is made 
 
 Perkins, 3 T. K. 749, where a witness whilst the matters are fresh in the me- 
 
 produced a coi)y of a day-book which he mory of the witness, it may just as well 
 
 had left at liome ; and Legge, B., held be used to refresh the memory as if it 
 
 that if he cuuld swear positively to the were the original. Suppose the witness 
 
 delivery from recollection, and tlic jiai^r made two memoranda whilst the matters 
 
 was only to refi-esh his memory, he might were fresh in his memory, either might 
 
 make use of it ; but if he' could not be so used.
 
 CHAP. V. § il] Examination of ]Vitiiesses. 
 
 book from his own knowledge, and the tradesman copied the entries 
 day by day into a ledger, in the presence of the clerk, who checked 
 them as they were copied ; it was held that the clerk might use 
 the entries in the ledger to refresh his memory, although the waste- 
 book was not produced, nor its absence accounted for ; as the en- 
 tries in the ledger were in the nature of entries made by the clerk 
 himself, (s) A witness cannot refresh his memory by extracts 
 made by another person from minutes or memoranda made by the 
 witness himself, (t) 
 
 It is not essential that the memorandum should have been con- 
 temporary with the fact ; it seems to be sufficient if it has been 
 made by the witness, or by another with his privity, at a time when 
 the facts were fresh in the recollection of the witness, and that tlie 
 reading such memorandum restores the recollection of the fact 
 whicli had faded in the memory, or enables him to swear to the 
 truth of the fact, (u) When a witness refreshes his memory from 
 memorandums, it is always usual, and very reasonable, that the ad- 
 verse counsel should have an opportvuiity of looking at them, when 
 he is cross-examining the witness, (v) 
 
 A writing cannot be used to refresh the memory, if it appears to 
 have been made for the purpose of the cause. Thus where a wit- 
 ness refreshed her memory by papers in her own handwriting, 
 some of which were in the form of a deposition, which was (.Irawn 
 by the plaintiff's solicitor, whom she had requested to digest her 
 notes and reduce them to some order ; and, after he had done so, 
 she transciibed and altered them whenever it was necessary, to 
 make them C(msistent with her meaning ; it was held that .she 
 ought not to have been allowed to refresh her memory by these 
 notes, (w) 
 
 The general rule is, that a witness must not be examined as to 
 his opinion, for his testimony must be confined to evidence of facts; 
 but in questions of skill and judgment, men of science or experi- 
 ence are allowed to give evidence of their opinion. Thus in a civil 
 case, in an inquiry as to an embankment choking up a harbour, an 
 engineer has been admitted to prove, from his own experiments, 
 what were the effects of natural causes upon that particular har- 
 bour, and on other harbours similarly situated on the same coa-st, 
 and that the removal of the bank would not, in his opinion, restore 
 
 5G9 
 
 At what time 
 the memoran- 
 dum must be 
 made. 
 
 The a-lversc 
 party may 
 look at the 
 memorandum. 
 
 Writing made 
 for the purpose 
 of the cause is 
 unavaihible. 
 
 Ex.amination 
 .03 to opinion. 
 
 Questions of 
 skill and judg- 
 ment. 
 
 (.s) lUirtou i\ I'luninier, 2 A. & K. 
 341. lir this case, Tatti'son, .J., said, 
 ' The copy of an entry, not made by the 
 witness contemporaneously, docs not seem 
 to nic to 1)0 admissible for the ]iiirpost' of 
 rcfrcshinf^ a witness's mcmtny. The rule 
 is, that the best ovidciuv must ln' pro- 
 duced, and that rule appears to nic to be 
 applicable, whether the paper be produced 
 as evidence in itself, or used merely to 
 refresh the memory.' 
 
 {t) 2 riiill. Kv. 414, citing a case men- 
 tioned by Lord Kciiyon, ('. J., in Doe v. 
 Perkins, 3 T. H. 751'. 
 
 (m) 1 Stark. Ev. 177. 'J i'iiill. Kv. 
 414. 
 
 (v) ^^y Eyre, C. .T., in Hardy's case, 
 24 How. Sf. Tr. 824. 2 I'hill. Ev. 411. 
 Sinclair v. Stevenson, 1 (_"arr. & P. 582. 
 But if a paper is put into a witness's 
 
 hands merely to juove a handwritin.i,', the 
 other side have no riyht to see it. Ibid, 
 per Hest, C. J. If a counsel, in cross- 
 examination, put n ]mper into tin- wit- 
 Jiess's hand to refresh his memory, the 
 opposite counsid has a rijjht to lonk at it, 
 without being bound to read it in evi- 
 dence. And ho nmy also ask the witness 
 when it was written, without lieiuR bound 
 to read it. Kex v. Hamsden, 2 ('. & P. 
 G04, by Lord Tenterdeu. Howard r. 
 Canlield, .'-. 1). P. i:. 417. 
 
 (»•) Anonymous. cite<l in Doe r. Per- 
 kins, 3 T. H. 7;')2. The case was in 
 chancery, and tin- Lord Chancellor sup- 
 pressed the depositions. In Skeinkellcr 
 V. Newton, 9 ('. & P. 31.3, a similar ob- 
 jection was made, but the point decided 
 was that the paper was not written near 
 euouirli to the transaction.
 
 570 Of Emlence. [hook vi. 
 
 the liarLour. {x) So sliipl)nil(lc'r.s liavo been admitted to state tlieir 
 opinion on tlie sea-wortliiness of a ship, from examining a survey, 
 which had been taken by others, and at whicli tliey were not pre- 
 sent, (y) Where tlie (jucstion is, whether a seal lias been forged, 
 scal-cnt^Mavcrs may be calh'd to show the difference between a 
 HCMuinc impression and that supposed U) Ix; false, (z) So on an 
 indictmi'ut lor f(»rging a will, which, together with writings in sup- 
 ])ort of it, it was suggested had been written (jver pencil marks, 
 which ha(l been rubbed out ; au engraver who had examined the 
 paper with a minor and traced the pencil marks, was held compe- 
 tent to give evidence of what he hatl discovered upon such exami- 
 nation, {(i) So in several cases where the gemiineness of certain 
 handwriting has been in (piestion, persons skilled in the examina- 
 tion of haiulwriting, and in the detection of forgeries, as inspectors 
 of franks, and clerks of the post office, have been allowed to state 
 their opinion whether a particular writing was in a genuine or 
 imitated character. (6) By 28 & 29 Vict. c. 18, s. 8, as mentioned 
 ante, p. 437, comparison of a disputed writing with any writing 
 proved to the satisfaction of the judge to be genuine, shall be per- 
 mitted to be made by witnesses, and such writing, and the evidence 
 of witnesses respecting the same, may be submitted to the court 
 and jury as evidence of the genuineness or otherwise of the writ- 
 ing in dispute. 
 Opinion of In Criminal cases, the opinions of medical men of science are 
 
 medical men. very frequently employed as evidence. A physician who has not 
 seen the patient, may, after hearing the evidence of others, be 
 called to ])rove, on his oath, the general effect of the disease de- 
 scribed by them, and its probable consequences in the particular 
 case, (c) The testimony of medical men is constantly admitted 
 with respect to the cause of disease, or of death, in order to con- 
 nect them with particular acts, and as to the general sane or insane 
 state of the mind of the patient, as collected from a number of cir- 
 cumstances. Such opinions are admissible in evidence, although 
 the professional witnesses found them entirely on the facts, circum- 
 stances, and symptoms established by others, and without being 
 personally acquainted with the facts, {d) Thus where on a trial 
 for murder the medical witnesses called on the part of the prose- 
 cution ascribed the death to strangulation, other medical men 
 called on behalf of the prisoner were allowed to give their opinion 
 
 (x) Folkes V. C'liail, MS. 1 Pliill. Ev. Company, 13 Q. B. 292, where evidence 
 
 291, 7tli ed., cited by BiiUcr, J., in Good- that a captain was addicted to dranken- 
 
 title ?•. Rraliani, 2 T. K. 498. So the ness was hekl admissible in order to show 
 
 opinion of a person conversant with the that he was incapable of exercising a 
 
 business of insurance may be asked as to sound judgment in selling a ship, 
 
 whether the communication of particular [z) By Lord Mansfield in Folkes r. 
 
 facts would have varied the terms of in- Chad, uhi supra. 
 
 sunmcc, though not what his conduct {a) Keg. r. Williams, 8 C. &. P. 434. 
 
 would have been in the particular ca.se. Parke, B., after consulting Tindal, 
 
 Bcrthon r. Lout;hman, 2 Stark. X. V. C. C. J. 
 
 2(>S. Holroyd,' J., but sec co^/ra Durrell (6) Goodtitle i-. Braham, 4 T. R. 497. 
 
 V. Bederley, Holt, N. P. C. 286, by Gibbs, Bex v. Cator, 4 Esp. N. P. C. 117, 145. 
 
 C. J. Stranger r. Searle, 1 Esp. 14. But see 
 
 (i/) Thornton r. Eoyal Exchange As- Gurney r. Langlands, 5 B. & A. 330. 
 
 sui-ance Company, Peakc, N. P. C. 25. Cary r. Pitt, Peake Ev. App. 84. 
 
 Chaurand r. Ang'ersteiu, ibid. 43. Beck- (c) Peake Ev. 190. 
 
 withr. Sydtbotham, 1 Campb. 117. See {d) 1 Stark. Ev. 175. 
 Alcock r. lioyal Exchange Assurance
 
 CHAP. V. § II.] Examination of Witnesses. 571 
 
 that, from the evidence they had heard upon the trial, the death 
 did not arise from strangulation, although they had not seen the 
 body of the deceased, and had no means of forming a judgment of 
 the cause of his death except from the evidence given in court, (e) 
 So in prosecutions for murder, medical men have been allowed to 
 state their opinion, whether the wounds, described by witnesses, 
 were likely to be the cause of death. (/) So in a case of murder, (g) 
 where the defence was insanity, the twelve judges were unanimous 
 in thinking that a witness of medical skill might be asked, whether, 
 in his judgment, such and such appearances were symptoms of in- 
 sanity, and whether a long fast, followed by a draught of strong 
 liquor, was likely to pi-oduce a paroxysm of that disorder in a person 
 subject to it. But several of the judges doubted whether the wit- 
 ness could be asked his opinion on the very point which the jury 
 were to decide, viz., whether, from the other testimony given in the 
 case, the act as to which the prisoner was charged was, in his 
 opinion, an act of insanity. (/<) And it has been since held that a 
 physician who had heard the whole evidence on a trial for murder 
 might be asked wdiether the facts and appearances proved showed 
 symptoms of insanity. {I) 
 
 A person of experience in the profession of the law of another 
 country may state his opinion, what, according to the law of that 
 country, would be the legal effect of the facts previously spoken 
 to by the witnesses, taking the facts to be accurate, {j) 
 
 It is usual for the Court, at the instance of either party, in crimi- 
 nal as well as civil cases, to make an order that the witnesses, nessesoutof 
 intended to be examined on either side, shall remain out of court *^"" " 
 during the examination of the other witnesses ; (/t) and it was 
 formerly held that if any person were present contrary to that 
 order, he could not, on any account, be permitted to be exa- 
 mined. {I) But an attorney was not within the rule, and might 
 remain, and still be admissible as a witness, his assistance being in 
 most cases absolutely necessary to the proper conduct of a cause. (>?) 
 And it used to be considered that it was in the discretion of the 
 judge whether he Avould allow the witness to be examined if he 
 had been in court in defiance of an order to withdraw, (o) But it 
 is now clearly settled that the Court cannot lawfully refuse to per- 
 mit the examination of the witness, though he may be fined for 
 
 Opinion as to 
 law of auotlier 
 country. 
 
 Orderin" wit- 
 
 (e) Rex V. Shaw, MSS. C. S. G. vor. 
 Patteson, J. S. C. 6 t". & P. 372. 
 
 (/) 1 Phill. Kv. 290, 7th oil. 
 
 ((/) Kex V. Wrif^ht, \\. k \\. 456. 
 
 (h) It seems tiiat in I\cf,'. v. M'Xa;<h- 
 teii, 10 el. & F. 200, siich(|iirsti<)iiswi're 
 allowed to be askcil. 2lt I-iiw Jlaj,'. 39(5. 
 See vol. 1, p. 121. 
 
 (i) Ilex V. Searle, 1 M. & Rob. 7i». 
 
 (,/') Rex V. Wakefield, cor. Huilo.k. 
 B., Miinay's ed. p. 238, in wiiieh case a 
 gentleman at the Seotch bar was ex- 
 amined as to wliether the marriage, as 
 proved l)y the -witnesses, wnnld 1h' a valid 
 marriage according to the Scotch law. 
 See ante, ]). 421. 
 
 (k) The order is made, on the ai>pli- 
 cation of a prisoner as an indulgence, 
 not as a matter of right. 1 Chit. Cr, L. 
 
 618. 1 Burn. Just. tit. Evidence, 
 999. 
 
 (1) .Vttorney-Gencral r. Bulpit, 9 Price, 
 4. Hut see l{e.\ r. Webb, cor. Best, 
 J., MS. Mann. Dig. p. 324. 
 
 (h) Pomeroy v. iJaddciev, H. A: M. X. 
 P. C. 430. Liltletlalo, .t. Kverett r. 
 I/iwdham, 5 ('. & P. 91, Bosiiiit|uet, J. 
 Anil it is now the onliuary course lo jmt- 
 mil, not only attorneys, liut prtifessional 
 or seientilie jiersons, to remain in court, 
 the rule bi^iiig considered n.s not apply- 
 ing to wituc^e^ of those dewriplions. 
 C. S. G. 
 
 (o) Parker r. M'Williani, 6 Bingh. H. 
 G83. Bcamon r. Klliee, 4 ('. & P. 5S5, 
 Taunton, J. Kex v. Collev. M. k M. 
 329. Rex I'. Wylde, 6 C. & P. 380.
 
 572 
 
 Ar;,'iiinoiit 
 wliilst ji wil- 
 iio.^s under 
 cx:iin illation. 
 
 Ciiunscl may 
 
 II lit cross- 
 cx.'iiiiinc if 
 ilcfeiidiint ail- 
 flrcsses the 
 jury. 
 
 The jutl^c may 
 cx.aniiiu' wit- 
 nesses after 
 c;iso closeil 
 and olijoction 
 taken. 
 
 0/ Evidence. [dook vr. 
 
 (lisoljoyiiifj tlio onk'r to luiive the court ; (^0 •'^'^"^ '"'^ wilful di.sobe- 
 (licncc of the onlci- iiKiy riffonl matter of" remark on the value of 
 liis testimony. 
 
 A ])rosccul()r merely as sueii has a rjf^ht in a eriniinal ca.se to 
 remain in court, hut if he is to he examined as a witnes.s, tlie 
 Court will order liim to leave; the C(jurt as well as the other wit- 
 nesses, (y) 
 
 It sometimes hajipens that it is desirahle that an argument a.s to 
 the evidence of a witness should not Ix; heard hy him, and in sueh 
 a case it is almost a right for the party desiring it to have the 
 witness out of court wliile a discussion is going on as to his 
 evidence, (r) 
 
 Upon the trial of a misdemeanor, the defendant is not entitled 
 to the assistance of counsel to cross-examine Avitncsses, wdien he re- 
 serves to himself the right of addressing the jury ; but counsel may 
 argue for him any points of law that arise, and may suggest the 
 questions to be put to the jury, {s) 
 
 Though the counsel for the prosecution has closed his case, and 
 the counsel for tlic prisoner has taken an objection as to a defect 
 in the evidence, the judge is at liberty to make any further inquiry 
 of the witnesses he thinks fit, in order to answer the objection. In 
 Rex V. Remnant, (t) on a case reserved for the opinion of the 
 judges, none of them seemed to have any doubt but that it was 
 competent and proper for the judge to do so. 
 
 Sec. III. 
 
 Method of im- 
 peaching credit 
 of witnesses. 
 
 1. By cross- 
 examination 
 of the witness 
 as io his own 
 conduct, &c. 
 
 Hovj the Credit of Witnesses may he lonpeached. 
 
 There are four methods by which a person may impeach the 
 credit of a witness who is called against him, besides the disproval 
 of the facts stated by the witnes.s. 1. By cross-examination. 
 2. By proof of statements made by him previous to his examina- 
 tion, inconsistent with his present evidence. 3. By proof of his 
 acts and declarations touching the matters in issue. 4. By general 
 evidence of his character. 
 
 ] . As to impeaching the credit of a witness by cross-examination. 
 If a witness be asked a question, for the purpose of showing him 
 unworthy of credit, the answer to which has a tendency to expose 
 him to a penalt}", or to any kind of punishment, or to a criminal 
 charge (as, for instance, if he be asked whether he has been guilty 
 of theft, fraud, or any offence subjecting him to a penalty or cri- 
 minal proceeding), he is not obliged to answer, (ii) So a witness is 
 
 (p) Cobbett r. Ihulsoi), 1 E. & B. 11. 
 Chuiullcr V. Home, 2 M. & Rob. 423, 
 Erskiue, J. 
 
 (q) Reg. V. Newman, 3 C. & K. 2'>2, 
 Lord Canipbell, C. J. C'liarnock v. Dew- 
 ings, 3 C. & K. 378. See Sclfe v. Isaacson, 
 1 V. & F. 194. 
 
 (/•) Reg. V. Murphy, 8 C. & T. 297, 
 Coleridge, J. 
 
 (s) Kex r. While, 3 Campb, 98, Lord 
 
 Elleuborouirh. Rex r. Parkins, R. & M. 
 N. P. C. 1(36, Abliott, C. J. 
 
 (0 R. & R. 136. 
 
 (») See the cases collected, 2 Phill. Ev. 
 417. 1 Stark. Ev. 190. Sec also ««^, p. 
 560, as to the obligation to answer where 
 the answer might subject to a civil suit. 
 The protection is not conlined to ques- 
 tions where the answer would lead to an 
 immediate conclusion of guilt, but ex-
 
 CHAP. V. § III.] Impeaching the Credit of Witnesses. 
 
 not bound to answer ^Yb ether lie ^Yrote an advertisement referring to 
 libellous letters wbicb a prosecutor bad received; and tbougb be is 
 bound to answer wbetber be knows in wbose bandwriting it is, be 
 is not bound to name tbe person, as it may be bimself. {v) An 
 accomplice wbo is admitted to give evidence against bis associate 
 in guilt, tbougb bound to make a full and fair confession of tbe 
 wbole trutb respecting tbe subject-matter of tbe prosecution, is not 
 bound to answer witb respect to bis sbare in otber offences, in 
 Avbicb be was not concerned witb tbe prisoner ; for be is not pro- 
 tected as to sucb offences, (tv) So a witness in custody upon a 
 cbarge of felony cannot be asked, 'Have you not said tliat you 
 committed tbe offence for wbicb youare now in custody ?' (x) So 
 where a witness stated that be was in a room wbicb be bad let to 
 a club on a night on which it was alleged that money bad been lost 
 by gaming ; it was held that he was not bound to answer tbe ques- 
 tion, ' Was there a roulette table in the room ? ' as his answer 
 might tend to involve him in tbe danger of being indicted as tbe 
 keeper of a common gaming house, (y) But although a witness is 
 not compellable to ansAver questions of this description, it should 
 seem that such questions may legally be asked. (5:) 
 
 It seems that to entitle a jjarty called as a witness to the privi- 
 lege of silence, the Court must see from the circumstances of the 
 case, and the nature of tbe evidence which the witness is called to 
 give, that there is reasonable ground to apprehend danger to tbe 
 witness from bis being compelled to answer, (a) 
 
 573 
 
 Questions 
 tending to 
 criminate. 
 
 Such questions 
 may be asked. 
 
 It is for the 
 Court to judge 
 whether the 
 answer is 
 likely to 
 criminate. 
 
 tends to all (questions that tend to crimi- 
 nate the witness, ' and the reason is that 
 the party would go from one question to 
 another ; and though no ([uestiuii might 
 be asked, the answer to which would 
 directly criminate the witness, yet they 
 would get enough from him whereon to 
 found a charge against him.' I'er Lord 
 Tenterdcn, V. J. Ilex v. Slaney, 5 C. & 
 r. 213. Thus where a witness in an 
 action l)y the indorsee against the drawer 
 of a bill, where the defence was usury, 
 was asked whether the bill had ever been 
 in his possession before, and the witness 
 said he thought liis answer would have a 
 tendency to cr)nvict him of the oll'ence of 
 usur}% for which he had been indicted, 
 it was hekl that he was not boiuul to 
 answer the (piestion. Cates v. llardacre, 3 
 Taunt. 424. See JIaloney v. Bartley, 3 
 Campb. 210. 
 
 (v) Ilex V. Slaney, 5 C. & P. 213, Lord 
 Tenterden, C. J. 
 
 (w) West's case, US. 2 Phill. Ev. 410. 
 
 (x) Pe.\ V. Peglcr, 5 C. & P. 521, Park, 
 J. A. J., and Littledale, J. 
 
 {ij) Fislierv. Ronalds, 12 C. P. 702. 
 
 (z) See the observations of the judges 
 in Rex v. Watson, 2 Stark. 149. Rex v. 
 Holding and Wade, O. 13. 1821, cor. 
 Bayley, J., MS., Archb. Crim. I'l. 238. 
 S. C. 1 Archb. Tract. 193. Harris v. 
 Tippet, 2 Campb. 637, Lawrence, J. 
 Contra, Rex r. Lewis, 4 Esp. N. 1'. C. 
 225. M 'Pride r. iM "Pride, ibid. 2J2 ; but 
 .see 2 I'hill. Ev. 42ti. Indeed, if the 
 imputation contained in a ([ucstion is so 
 
 connected with the inquiry and the jHiiut 
 in issue, that the fact may be provctl by 
 other evidence, and the adverse party 
 intends to call witnesses for tliat purj'ose, 
 the witness proposed to be discredited 
 initsl be asked whether he ha.s been guilty 
 of the ollenre iiuputed, ]iost, p. 580. And 
 Lord Tenterden, has ruled that the coun- 
 sel in a cause have no right to object, in 
 favour of a witness, that the answer to a 
 particular (picstion renders him liable to 
 l)unishment or forfeiture ; such objection 
 belongs to the witness only. Thoma.s r. 
 Newton, M. k U. 48 note (a) to East v. 
 Chapman. The privilege of refusing to 
 answer questions on the ground that they 
 tend to criminate is that of the witness 
 alone, and neither party to the suit can 
 take any advantage therefrom. A witness 
 called on the part of the Crown to prove 
 bril)ery against the defendant, refn.sod to 
 give evidence on the ground that his evi- 
 dence would tend to criminati' himself, 
 the objection b-ing overruled by the 
 judge, lie gave his evidence. IleKI, tliat 
 the defendant could not object that such 
 evidence was improperly received. R. f. 
 Kinglakc, 11 Cox, C. C. 41>1». 
 
 (a) Reg. r. Poyes, 1 P. & S. 311. Os- 
 born I'. Ijondon Pock Co. 10 Exch. R. 
 693, where Parke, P., said that this wo-s 
 the opinion of the majority of the judgca 
 in Reg. 1-. (:.arb«'tt, \ Den. C. C. 23(3. 
 Put that report expressly states that the 
 majority of the jmlgi-s ' did not decide, 
 as the case did not call for it, whether 
 the mere declaration of the witness on
 
 574 
 
 Of J'Jvideuce. 
 
 [bOOK 
 
 vr. 
 
 I f il:inj,'or 
 
 .■i|ilir,ir K'H'.'lt 
 lulillllll) JH to 
 lin hUmwoiI to 
 tlie wiliR'sH. 
 
 Tlio .l;inj,'(<r 
 must 1 10 rciil 
 mill not 
 Uiiagiiiikr)', 
 
 EfTcct of a 
 pnnloii. 
 
 Effect of a 
 
 Uiit if tlio fact of flio witness ]>oiii^ in dnwifcv ])u onctj made to 
 a|>|)car, ^rcat iatitndt' should ho allowed t(j lain in judgin^f i'ov hiin- 
 s('lf of till' elffct of any particailar ((Uestion ; as tliere is no doubt 
 that a (|U<'stion, wliieli ndi^lit aj)pear at first siglit a very innocent 
 one, niinlit, l)y aH'ordiiiLf a link in a chain of evidence, become the 
 means of bringing" home an offence to the party answering, (b) 
 
 It, has a,lso been laid down that the danger to be apprehended 
 must be real and a])preciable, with reference to the oidinary ope- 
 ration of law in the (jrdinary course of things, — not a danger of an 
 imaginary and unsubstantial character, having reference to some 
 extraordinary and barely j)ossible contingency, so improbable that 
 no reasonable man would suffer it to influence his conduct. A 
 merely remote and naked possibility, out of the ordinary course of 
 law, such as no reasonable man would be affected by, should not be 
 suffered to obstruct the administration of justice, (c) 
 
 Where a pardon for an offence has been granted, the rule 
 appears to be that the pardon removes the privilege of a witness 
 of not answering questions, provided they are relevant to the 
 issue ; ((/) but where the adverse party is attacking the witness, 
 he is justified in refusing to answer what would disgrace him, 
 although he has obtained a pardon, (e) 
 
 Where a witness had received a certificate under the repealed 
 
 oiitli tli:tt lie believed tliat the answer 
 wouM tend to ciiininatc him, woiijil or 
 would lint be sufticient to protect him 
 from answering.' See also ex jxiite 
 Fernandez, 10 C. B. 3, and Bartlett 
 V. Lewis, 12 C. B. (N. S.) 249. In 
 Fisher v. Ronalds, 12 C. B. 7G2, 22 L. 
 J. C. r. 62, Jervis, C. J., and JIauIe, 
 J., expressed strong opinions that it 
 •was for the witness and not for the 
 judge to determine whether the answer 
 might tend to criminate. Maide, J., 
 said, ' It is the witness who is to exercise 
 his discretion, not the judge. The wit- 
 ness might be asked, "Were you in Lon- 
 don such a day 'i " and though apparently 
 a very simple (piestion, he might have 
 good reason to olijei-t to answer it, know- 
 ing that, if he admitted that he was in 
 London on that day, liis admission might 
 comi>lete a chain of evidence against him 
 wliich would lead to liis conviction. It is 
 impossible that the .judge can know any- 
 thing about that. The privilege would 
 be worthless, if the witness wi're required 
 to point out how his answer would tend 
 to criminate him.' In Adams v. Llovd, 
 3 IL & N. 351, Pollock, C. B., cited the 
 dictum of Jlaule, J., and said, 'I have 
 always thought that the law on that sub- 
 ject was correctly stated by Alaule, J.,' 
 atid addeil, ' It is impossible to satisfy 
 the judge without exposing the whole 
 matter ; and a man may be placed under 
 such circumstances with respect to the 
 commission of a crime, that if lie disclosed 
 them he might be fixed upon by his 
 hearers as a guilty person ; so that the 
 rule is not always tlie sliield of the 
 guilty ; it is sometimes the protection of 
 the innocent, although very likely it was 
 originally introduced from humane mo- 
 
 tives, being probably deiived from the 
 maxim 'iicvio tcnclur scijmim accusarc' 
 In Chester v. Wortley, 17 C. B. 410, 
 Jervis, C. C, said, that 'In Fislier r. 
 Konalds, my brother Maule and I thought 
 that it was for the witness and not for 
 the judge to determine whether or not 
 the answer to a particular question may 
 tend to criminate him. Some juilges, 
 however, have entertained a dilfereiit 
 opinion ; ' but intimated no change in his 
 own opinion. This case and Adams r. 
 Lloyd were subsequent to Osboru r. The 
 London Dock Company (which Wiiis cited 
 in both of them), and Keg. v. Garbett. In 
 l)aitlett f. Lewis, supra, Byles, J., said, 
 ' I do not concur with some of the obser- 
 vations which have been made as to the 
 nature and the reasons for the privilege 
 which a witness ha.s to protect himself 
 from answering as to a matter having a 
 tendency to criminate him. The rule 
 was intended for tlie protection of the 
 innocent and not for tliat of the guilty.' 
 (/i) Keg. v. Boyes, supra, Osborn r. 
 London l)ock Co., supra, jier curiam. 
 
 (c) Per curiam. Keg. r. Boyes, supra, 
 where, after a pardon of bribery, it was 
 held that the risk of an impeachment 
 was not sullicient to jirotect the witness 
 from answering. 
 
 (d) Keg. r. Boyes, 1 B. & S. 311. 
 
 (c) Per Crompton, J,, ibid, stating that 
 that is the distinction between Keg. r. 
 Boyes and Keg. v. Kciidiiig, 7 How. St. 
 Tr. 259, '296, where the ipiestionwas put 
 ill the cross-examination of a witness for 
 the Crown ; and the Earlof .^laftesbury's 
 case, 8 How. St. Tr. 817, where the ques- 
 tion was put by a grand juror to test the 
 character of a witness. See M. & JL 193, 
 note (b).
 
 CHAP. V. § III.] Impeaching the Credit of Witnesses. 575 
 
 enactment 15 & 16 Vict. c. 57, s. 10, which protected witnesses, certificate 
 who had made a true disclosure touching corrupt practices at the "°!^^'" ^^^ 
 election of members of parliament, it was held that the witness "^*^^' *^*' 
 was bound to answer, whether he had received any sums of money 
 from a person charged witli bribery, as that certificate protected 
 him from all penal actions, penal disabilities, and criminal prose- 
 cutions of every kind. (/) 
 
 And where in an action on a bill of exchange the defence was, Where the 
 that the bill was drawn and accepted for the balance of an account t'™<^ /^r pro- 
 of stockjobbing transactions, and one of the parties to the trans- "^a'ssed" '^ 
 action objected to answer the question, on the ground that his 
 answer might subject him to penalties under the Stockjobbing 
 Acts ; but the transaction had taken place more than three years 
 before the trial, and the witness did not know that any proceeding 
 had been commenced against him ; Lord Tenterden, C. J., held 
 that the witness was bound to answer the questions put to 
 him. (//) 
 
 As to questions which are asked, upon cross-examination, for the Questions 
 purpose of throwing discredit on a witness, and which tend merely ^"'^^'l^ *^ 
 to disgrace and degrade him, without subjecting him to a penalty ®8ra<ic- 
 or criminal charge, the authorities are conflicting on the point 
 whether he is compellable to answer them. It seems that he is 
 not. In Cooke's case, (/t) on an indictment for high treason, the 
 prisoner, in order to challenge a juryman, asked him if he had not 
 said he was guilty and would be hanged. Lord C. J. Trcby ovei"- 
 ruled the question, and said, ' You may ask upon the voire dire 
 whether he has any interest in the cause ; nor shall we deny you 
 liberty to ask, Avhether he be fitly qualified according to law by 
 having a freehold of sufficient value ; but that you may ask a juror 
 or witness every question that will not make him criminous, that is 
 too large. Men have been asked, whether they have been convict- 
 ed and pardoned for felony, or whether they have been whipped 
 for petty larceny, but the}'- have not been obliged to answer ; for, 
 although their answer in the affirmative will not make them cri- 
 minal, nor subject them to punishment, yet they are matters of in- 
 famy, and if it be an imfamous thing, that is enough to preserve a 
 man from being bound to answer. A pardoned man is not guilty : 
 his crime is purged. But merely for the reproach of it, it shall not 
 be put upon him to answer a question, whereon he will be forced to 
 forswear or disgrace himself So persons have been excused from 
 answering, whether they have l)een connnitted to Bridewell as pil- 
 ferers or vagrants, &c. ; yet to be suspected is only a misfortune and 
 shame — no crime. The like has been observed in other c:uses of 
 odious and infamous matters, which are not crimes indictable.' 
 
 So in Layers case, (?) the court would not allow the witness to 
 be examined on the voire dire, as to whether he had been promised 
 a pardon or reward for swearing against the prisoner ; and Jjord 
 C. J. Pratt said, ' If the objection goes to his credit, must he not Ik) 
 sworn, and his credit left to the jury ? Ko ]>erson is to dincredif 
 hiTnself, hiit is always taken to be innocent till it ajipear otherwise.' 
 
 (/) Reg. V. Cliarlesworth, 2 F. & V. {</) Hohort.s i-. Allm. M. k M. 192. 
 
 326. Ex parte Fernaiulcz, 10 C. K (A) 4 .>^t. Tr. 7IS. 
 
 (N. S.) 3. In. re Feniaiuloz, (i II. & N. (») <5 St. Tr. 'ir>9. 2 riiill. Kv. J'J4. 
 717. See vol. 1, p. 326.
 
 576 Of Evidence. [book vi. 
 
 Ill ,S'//- John Friend's case, if) who was tried for liigli tiuason, it 
 was licM that a witness could not bo asked wliether ho was a 
 Roman CatlioHo, liecauso lie nii^ht subject himself t(j i)enalties by 
 his answer ; and 'J'reby, C. J., said, ' No man is bound to answer any 
 (luestions that will subject him to penalties or to infami/.' 'JMiere 
 are two modern decisions at Nisi Prius, in accordance with the 
 doctrine laid down by the chief justices in the above cases. In Rex 
 V. Le2vis,{<j) which was an indictment for an assault, the prosecu- 
 tor, in the course of cross-examination, was asked if he had not 
 been in the House of Correction in Sussex, and Lord Ellenborough, 
 C. J., interposed, and said, that that (juestion should not be asked ; 
 that it was formerly settled by the judges, among whom were 
 Trcby, C. J., and Powell, J., both of whom were great lawyers, that 
 a witness was not bound to answer any question, the object of which 
 was to dcnradc, or render him infamous. M'Bride v. M'Bride (h) 
 was an action of assumpsit, in which a woman being called as a 
 witness for the plaintiff, the counsel for the defendant was pro- 
 ceeding" to examine her as to her living in a state of concubinage 
 with the plaintiff, but Lord Alvanley interposed, and said, he 
 thouf^ht (juestions as to general conduct might be asked, but not 
 such as went immediately to degrade the witness. His lord.ship 
 added, ' I do not go so far as others may. I will not say a witness 
 shall not be asked to what may tend to disparage him ; that would 
 prevent an investigation into the character of a witness, which it 
 may often be of importance to ascertain. I think those questions 
 only should not be asked which have a direct and immediate effect 
 to disgrace or disparage the witness.' 
 
 In the trial of O'Coigley and O'Connor {i) for high treason, 
 where a witness was asked, on cross-examination, how many in- 
 formations he had laid for the purpose of throwing an imputation 
 on him as a common informer, whereupon he appealed to the pro- 
 tection of the court : it was held that the question should not be 
 repeated or followed up by another. 
 
 Where on a trial for burglary a witness for the prosecution wa.s 
 asked in cross-examination whether he had not been charged Avith 
 a crime, and imprisoned two years ; Crcsswell, J., held that the 
 question might be put, but the witness was not bound to answer it, 
 as the matter Avas of an infamous nature, (/o) 
 
 In addition to these cases must be mentioned that of Bex v. 
 Hodgson, (?) which was an indictment for a rape upon Harriet 
 Halliday. After she had given her evidence, she was cross-exa- 
 mined by the prisoner's counsel, who put these questions to her : 
 ' Whether she had not before had connection with other persons ? ' 
 and ' Whether she had not before had connection with a particular 
 person (named) ? ' It was objected that she was not obliged to 
 answer these questions ; and Mr. Baron Wood allowed the objec- 
 tion, on the ground that she was not bound to answer them, as 
 they tended to criminate and degrade her. And, on a case reserved, 
 
 {/) 4 St. Tr. 606. 1 Stark. Ev. 206 opinion, ante, p. 575; anil if the case 
 
 (g) 4 Esp. N. r. C 225. liad been of sufficient importance it seems 
 
 (h) 4 Esp. N. P. C. 242. the qucstiou would have been reserved. 
 (i) 26 How. St. Tr. 1353. (I) R. & R. C. C. R. 211. But sec Rex 
 
 (k) Reg. V. Parker, 1 Cox. C. C. 76. v. Barker, 3 C. & P. 5S9. 
 Cresswell, J., referred to C. J. Treby's
 
 CHAP. V. § in.] Imj_jeacliin<j the Credit of Witnesses. 577 
 
 the twelve judges determined that the objection Avas properly 
 allowed, (m) 
 
 Though a witness be not compellable to answer degrading ques- 
 tions, it seems allowed (as in the case of criminating questions), (r) 
 that the questions may legally be asked, (.s) In Rose v. Blake- 
 niore, (t) where a witness for the plaintiif refused to answer a 
 question, whether he had published a particular handbill, on the 
 ground that he had been threatened with a prosecution for the 
 publication ; and the counsel for the defendant, in his address to 
 the jury, put it to them that the witness really must have been 
 concerned in the publication, for that a denial of it, if he could 
 deny it, would not injure him ; Abbott, C. J., interposed and said, 
 that no such inference ought to be drawn, and that there was an 
 end of the protection of a witness, if a demurrer to the question 
 were to be taken as an admission of the fact inquired into. 
 And in Lloyd v. Passinghar)i, Lord Eldon expressed a similar 
 opinion, (it) 
 
 If the question be of a tendency to criminate or degrade, and Witness's 
 the witness answers it, the cross-examininof party must be satis- -''"•^^'^^ ^°^' 
 fied with the answer, and will not be allowed to falsify it by 
 evidence ; (v) that is, if the question be merely collateral to the 
 point in issue ; for if it be relevant to it, and the witness deny 
 the thing imputed, evidence maybe called to contradict. Thus 
 where a witness for a prosecution in larceny had been asked, in 
 cross-examination, whether he had not been charged with robbing 
 his master, and whether he liad not afterwards said he would be 
 revenged of him, and would soon fix him in gaol, and had denied 
 both ; Lawrence, J., ruled, that as to the former, his answer must 
 be taken as conclusive ; but that as the words were material to 
 the guilt or innocence of the prisoner, evidence might be adduced 
 that they were spoken by the witness, (ir) 
 
 Where on an indictment for murder, which was prosecuted by ^ ^'itness 
 
 ^ *' cannot be 
 
 (vi) See Dodd v. Norris, 3 Campb. 519. 
 R. V. Holmes, 41 L. J. M. C. 12. Re.x 
 V. ritcher, 1 C. & P. 85. The fol- 
 lowing cases are in favour of the position 
 that a witness is compellable to answer 
 qucstidns tcndiii<,'to disgrace or disparage. 
 K. V. Edwards, 1 T. It. 440. Frost v. 
 Holloway, Ws. 2 Phill. Ev. 428. Cun- 
 dell V. Pratt, Moo. & Mai. 108. See the 
 cases, ante, p. 573. 
 
 (r) See ante, p. 573. 
 
 (s) See 1 Stark. Ev. 212. 
 
 (0 K. & M. N. r. C. 382. See K. r. 
 Watson, 2 Stark. N. P. V. 157. 
 
 (u) 16 Yes. 64. See the note of the 
 Reporters in Rose v. lilakeniore, in wliich 
 doubts are ably exjjressed, witii dcfurcnce 
 to such high authorities, whctlier tiicso 
 dicta be not inconsistent witli the ge- 
 neral principles on whicli tlie rules con- 
 cerning the riglit of witnes.ses to refu.se 
 an answer to que.stions liave been estab- 
 lished. 
 
 (v) Rex r. Watson, 2 Stark. H. 140, 
 
 151,' 158. Kex V. Clarke, 2 Stark. K. 
 
 244, per Holroyd, .1. Harris v. Tippett, 
 
 2 Campb. 637, cur. Lawrence, J. For 
 
 VOL. in. 
 
 the court will not try a collateral ques- 
 tion whether the witness has been guilty 
 of the misconduct imputed to liim. How- 
 ever, in this ciLse of Harris v. Tippett, 
 whicli has been relied upon by very 
 higli authorities in support of tin- general 
 rule (see Pie.K r. Watson, 2 Stark. 155, 
 158), it may be perliaps ih)ubted whether 
 the decision of tlie learned judge in this 
 jiartieuhir instance was correit, although 
 the jmnciple laid down by him undoubt- 
 edly is SI). The witness being called for 
 the difi-ndant, was asked whetlur lie 
 had not .ttti-mptcd to di.s,suade a witness 
 examined for tiie plaintiif from attending 
 the trial ; the (piestion, therefon-, it may 
 be argvied, was not altogether collatemf, 
 but .so connecteil with the cause that 
 other witnesses might be called to eon- 
 tradirt him. See tli.' (>uoon"s case, 2 P. 
 & P. 311, jn>s/, p. 588, and see the cases 
 where a ]>n>secutrix in mpe liiw been 
 contnidirled by other wilncsue-s aitU, 
 p. 388. 
 
 (w) Yewin's ciuse, 2 Campb. 638 ; si^c 
 also tlie l,>ucen's wise, 2 P. * P. 313, and 
 post, J). 588. 
 
 r V
 
 078 
 
 n-skcil wliollior 
 liu is a H\>y. 
 
 ( >/ I'l vide lice. 
 
 {}•■ 
 
 OOK VI. 
 
 Piivilcgo of 
 lliu witness 
 only. 
 
 A witness is 
 entitlcil to 
 lirotcction at 
 any time, and 
 although he 
 may have an- 
 swered in iiait. 
 
 A witness may 
 V>c asked 
 whether he 
 li IS not been 
 ji.eviously 
 convicted, &c. 
 
 Could a wit- 
 ness be asked 
 whether he 
 had been con- 
 victed ? 
 
 the iittunicy-i^fciicral tor the government, a i)olicc officer, on 
 cross-i'Xiuni nation, stated that he had attended a meeting by tlie 
 (Hrection of the commissioners of polico, and that his instructionB 
 were to attend the meeting and report, and that lie attended the 
 meeting and reported ; he was asked whetlier he attended as a 
 spy, and the (inestion Avas objected to. Lord Campbell, C. J., 
 ' 1 am of oj)ini(iii that it is irregular, not on the ground that 
 the witness is called on to criminate himself, and may refuse to 
 answer, but on the ground that he is called upon to draw an 
 inference from the facts. It will be open to the counsel for the 
 prisoner to denominate the witness a spy hereafter if he think fit ; 
 but I am of opinion that he cannot ask the witness "Did you go 
 as a spy ? ^ '_ [o:) 
 
 The privilege of refusing to answer is the privilege of the 
 witness, and not of the party ; for that reason, Lord Tenterden, 
 C. J., refused to allow counsel to support, by argument, the pri- 
 vilege as belonging to the party whom he represented, {y) It 
 was formerly held that if a witness answered any questions on 
 cross-examination on a matter renderinrr himself liable to for- 
 feiture or punishment, he could not afterwards claim Ins privilege, 
 but must answer throughout. (0) And so if a witness voluntarily 
 answered questions tending to degrade him on his examination 
 in chief, he was bound to answer on cross-examination, however 
 penal the consequence may be. {a) But it has since been held 
 that it makes no difference in the right of a witness to protection 
 that he has chosen to answer in part ; and the witness is entitled 
 to protection at whatever stage of the examination he choses to 
 claim it. (6) 
 
 By the 28 & 29 Vict. c. 18, s. 6, {c) ' a witness may be questioned 
 as to whether he has been convicted of any felony or misdemeanor, 
 and, upon being so questioned, if he either denies or does not 
 admit the fact, or refuses to answer, it shall be lawful for the cross- 
 examining party to prove such conviction ; and a certificate con- 
 taining the substance and effect only (omitting the formal parts) 
 of the indictment and conviction for such offence, purporting to be 
 signed by the clerk of the court, or other officer having the custody 
 of the records of the court, where the offender was convicted, or 
 by the deputy or clerk of such officer (for Avhich certificate a fee 
 of five shillings and no more shall be demanded or taken), shall, 
 upon proof of the identity of the person, be sufficient evidence of 
 the said conviction, without proof of the signature or official cha- 
 racter of the person appearing to have signed the same. 
 
 Where before the C. L. P. Act, 1854, s. 25, an almost similar clause 
 to the above enactment, the defendant was asked in cross-examina- 
 tion whether there had not been proceedings against him in the 
 county court at the suit of one Agutta in respect of a similar claim, 
 which he had resisted, and upon which he had jjiven evidence, and 
 the jury notwithstanding found their verdict for the then plamtin. 
 
 ix) Reg. 1'. Ramard, 1 F. & F. 240. 
 
 {y) 1 I'hil. Ev. 418, citing Thomas v. 
 Newton, M. & }>l. 48 n. 
 
 (z) East r. C'liapman, M. & M. 46. 
 Lord Tenterden, C. J., Dixon r. Vale, 1 
 C. k V. 278. Best, (.". J. 
 
 (rt) Por Danipier, J., Winchester Sum. 
 Ass. 1815, Mann. Ind. Witness, 222. 
 
 (b) Reg. r. Garbett, 1 Den. t'. C. 
 236. 
 
 {c) This section is almost the same as 
 the C. L. P. Act, 1854, s. 25.
 
 CFiAP. V. § iiT.] Impeaching the Credit of Witnesses. 579 
 
 and it was objected that the question could not be put without 
 producing the record of the proceedings in the county court; and 
 tlie objection was overruled, and the defendant answered that 
 there had been such proceedings, in which he had given evidence, 
 and that he had lost the verdict ; the Court held that no new 
 trial ought to be granted by reason of this question having been 
 allowed, and said, ' We dissent from the obiter dictum of Cress- 
 well, J., in Macdonnell v. Evans, as to what stands upon the 
 same ground, viz., the necessity of producing the record of the 
 conviction in order to found the question, on cross-examination, 
 " Have you been convicted ? " Upon a question collateral to the 
 issue, as a rule, the questioner is bound by the answer ; so that 
 extraneous evidence is vain. Either the witness answers, " I 
 have been convicted," and the question is useless, or he denies it, 
 and then (apart from the Common Law Procedure Act 1845, s. 
 25, which does not touch this case) the proof of the conviction is 
 forbidden. It cannot be given in evidence before the witness has 
 answered, for it is not evidence in the cause. It could not be 
 given in evidence after, because the answer is conclusive ; and so 
 of the proceedings in the county court in the present case. The 
 case oi Macdonnell v. Evans, the Queen's case, (/) and numerous 
 other cases, in which it has been held that documents must be 
 produced, are cases in which either the document would have been 
 evidence upon the issue, or to contradict the witness if he answered 
 in a particular way, or in which the precise terras and language of 
 the documents were necessary to be referred to in order to answer 
 the question. This is not a question as to the contents of a Avritten 
 document.' (g) 
 
 Where a witness called for a plaintiff was asked on cross-examina- •*• witness 
 tion by the defendant's counsel, who produced a letter purporting to ^^^^^ . pj^j 
 be written by the witness, ' Did you not write that letter in answer you not write 
 to a letter charging you with forgery ? ' it was held that the ♦■^=** '°"«'" •" 
 question could not be put. The rule is that the best evidence in charging you 
 the possession or power of the party must be produced. Gene- with forgery ♦ 
 rally the original document is the best evidence ; but circum- 
 stances may arise in which secondary evidence of its contents may 
 be given. In this case these circumstances did not exist. For 
 anything that appeared, the defendant's coun.sel might have the 
 letter in his hand when he put the question. It was sought to 
 give evidence of a letter witiiout in any way accounting for its 
 absence, or showing any attempt made to obtain it. The best evi- 
 dence of the document was not tendered, (e) 
 
 if) 2 1'). & P>. 288, 2!)2. had siiiil, "I iliil writ." this letter in 
 
 {(7) Heiiman V. I.pster, 12 ('. H. (N. S.) answer to anoflior which is in court," 
 
 776. Byles, .1., dixscnlientr. Rood sense oliviously reipiire.s that tlio 
 
 {c) Macdoimel v. Kvnns, 11 C 15. letter sliould l>e ]<n.diired, if it is wished 
 
 (1.30. Tlie rouit, liowever, studiously to ^'et at its content.s :' and in pvinR 
 
 guarded against laying down any gene- judgment, ' Sui)pose we iw.sunie thai the 
 
 ral rule, Jervis, ('. .1., saying, ' It is paper wa.s .shown to the witne.-ts, and he 
 
 unneeessary, as it seems to me, for the was asked, " Uid you not say Ye.s in 
 
 court to lay down any general rule upon answer to sojnething contained therein ?" 
 
 thi.s subject.' During the argument, can it be i-ontendeil tl\at the content.s of 
 
 Maule, J., said, 'If you want tiie jury the paper culd not W- .shown ? It seems 
 
 to know that there was a Utter con- to me that if the document was present, 
 
 taining a charge of forgery, the jtroper the })roi>er way of dealing with it would 
 
 way to do so is by jjroduciiig the letter ho to jirotluee it, and then to ask the wit- 
 
 itself ;' and again,' ' Suppose the witness ness, " Did you not write .so and so in 
 
 r V 2
 
 580 
 
 U. By proof of 
 coil trad ictory 
 
 BUllolllCllt. 
 
 A foundntinii 
 inuHt 1)0 liiid 
 on rrosH- 
 fxiiiiiiiiutioii. 
 
 Of Evidence. 
 
 [book vr. 
 
 Mode of lay- 
 ing a founda- 
 tion for proof 
 of contradic- 
 tory state- 
 ments. 
 
 Mildly. The ( rcdiL of !i witiKjss may bo iiiipeacliod l)y j^iviiig 
 cvidciicf <il his liaviii^r said or written toiicliinjf t!ic cause wliat is 
 at variance and inconsistent with his testiiiKJiiy on the trial. (/<) 
 lint in order to lay a I'oundation for such discrediting evidence, it is 
 necessary first to ask the witness, when it is proposed to discredit 
 by proof of contradictory rcr?;aZ statements, upon cross-examination, 
 whether he has made the statement or declaration, or held the con- 
 versation which it is intended to prove. (/') Thus if a witness, on 
 being examined in chief as to some transaction supposed to iiave 
 occurred between certain persons, should admit that lie had heard of 
 such a thing, but docs not know its cause, it would be irregular to 
 prove liis having made a declaration respecting the cause, in order 
 to show bis knowledge of the cause, without first asking him in the 
 cross-examination whether be bad not made sucb a declaration ; 
 or if be bad answered that be did not remember the transaction, 
 it would be equally irregular, without sucb previous cross- 
 examination, to prove declarations made by him respecting the 
 transaction for the purpose of showing tbat be must have remem- 
 bered it : {j) for it would, in many cases, have an unfair effect upon 
 the witness and upon bis credit, and w^ould deprive him of that 
 reasonable protection which it is the duty of the court to afford to 
 every person who appears as a witness, to allow proof of his former 
 conversation without first interrogating him as to that conversation, 
 and reminding him of it, in order to call up all the powers of liis 
 memory as to the transaction, {h) And it is not enough to ask the 
 general question, whether the witness has ever said so and so, 
 because it may frequently happen that, upon the general question, 
 he may not remember having said so ; but the witness must be 
 asked as to the time, place, and person involved in the supposed 
 contradiction ; because, when his attention is challenged to par- 
 ticular circumstances, he may recollect and explain what he has 
 formerly said. Where, therefore, a witness had denied that be had 
 ever said that he was in partnership with the defendant, but had 
 not been questioned as to the particular pei'son, or conversation ; 
 Tindal, C. J., refused to allow a witness to be asked whether on a 
 
 answor to it ? " ' The court treated the 
 question in this case exactly the same as 
 ii"it had arisen on an examination in chief. 
 In Koosey v. Davidson, 13 Q. E. '2^>7, 
 which was an action lor the ini'ringenient 
 of a copyright of certain airs in an opera, 
 a witness was asked whether he had not 
 seen printed copies of these airs in a 
 particular shop ; and it was lield that the 
 question could not he put, as the answer 
 would be a statement of the contents of 
 a written instrument, without accounting 
 for its non-production. 
 
 (/() De Sailly r. Morgan, 2 Esp. N. P. 
 C. GDI. Christian v. Combe, 2 Esp. 4S9. 
 See ante, p. 525, as to the depositions of 
 a witnes.s before a magistrate being used 
 for this purpose. In order to impeach 
 the credit of a witness for a defendant 
 upon an information for a.ss;iulting reve- 
 nue othcers, by proving that on an in- 
 formatiou before two magistrates against 
 the same defendant for having ."^muggled 
 
 goods in his pcssession he gave a different 
 account of the matter, proof of the con- 
 viction containing the testimony of the 
 witness is insuliicient ; it is necessary to 
 prove it by the testimony of those who 
 heard what was said. Kex v. Howe, 1 
 Cajnpl). 461. S. C. 6 Esp. 125. 
 
 (i) The (Queen's case, 2 1^. & B. 299. 
 Carpenter r. Wall, 11 A. & E. 803. 
 U) The Queen's case, 2 B. & B. 299. 
 (A) 2 15. & B. 300. Abbot, C. J., in de- 
 livering the opinion of the judges, added 
 that, in any gi-ave or serious case, if the 
 counsel had, on his cross-examination, 
 omitted to lay the necessary foundation, 
 the court would, of its own authority, 
 call back the witness in order to give 
 him an opportunity of doing so. Another 
 reason why he ought to be cross-exa- 
 mined is, that he may have an oppor- 
 tunity of explaining his conduct, 2 B. & B. 
 3H.
 
 A witness may 
 be cross- 
 examined as to 
 written state- 
 ments made 
 by him. 
 
 CHAP. V. § in.] ImpeachiiKj the Credit of Witnesses. 581 
 
 particular occasion the witness had told him that he was in part- 
 nership with the defendant, (l) 
 
 By the 28 & 29 Vict. c. 18, s. 5, (m) ' a witness may be cress- 
 examined as to previous statements made by him in writing, or 
 reduced into writing, relative to the subject matter of the indict- 
 ment or proceeding, without such writing being shown to him ; but 
 if it is intended to contradict such witness by tlie writing, (u) his 
 attention must, before such contradictory proof can be given, be 
 called to those parts of the writing which are to be used for the 
 purpose of so contradicting him : provided always, that it shall be 
 competent for the judge at any time during the trial to require the 
 production of the writing for his inspection, and he may thereupon 
 make such use of it for the purposes of the trial as ho may think tit.' 
 This clause, by sec. 1, applies to 'all courts of judicature as well 
 criminal as all others, and to all persons having by law or by con- 
 sent of parties authority to hear, receive, and examine evidence ; ' 
 and consequently any court of sessions trying any offence, or any 
 justice or justices hearing any charge of any offence, may rc(|uire 
 the production of any writing, &c., though the word 'judge' alone 
 occurs in the clause. 
 
 This 5th section is the same in substance as the 17 & 18 Vict. Observations 
 c. 12o (The Common Law Procedure Act 1854) s. 24. As it is obvious °^ ^^^ °^^ 
 that some questions are likely to arise upon this 5th section, it 
 may be well to advert to them. The clause seems to assume that 
 the writing is in the possession of the party who is cross-examining, 
 
 {!.) Angus V. Smith, M. & M. 473. The 
 witness was allowed to be recalled, and 
 asked the particular question ; and the 
 same rule was laid down ])y Parke, 15., in 
 Crowley v. Page, 7 C. & P. 789, /yfts<, p. 
 589, note (x), and in Kex v. Pearce, 
 Gloucester Spr. Ass. 1829, MSS. C. S. G. 
 Learned judges have in many instances 
 allowed witnesses to be recalled in order 
 to lay a foundation I'or the admission of 
 such contradictory evidence. In Reg. v. 
 Harris, Salop Spr. Ass. 1842, upon iin 
 indictment for murder, the prisoner had 
 no counsel, and in his defence to the jury 
 he alleged certain statements to have 
 been made by the ]irinci[ial witness for 
 the prosecution, and imputed that his 
 son, who could prove the statements, had 
 been preventcnl from attending to give 
 evidence for him ; and Patlcson, .J., 
 stopped the trial, and ordered the .son to 
 be sent for, at the same time directing lliat 
 no communication should be made to him 
 of the matters as to whieh he was going 
 to be examined. The prisoner having 
 no attorney, and the son not having been 
 examined by any one as to what state- 
 ments he had heard the witness make, a 
 difliculty arose as to the mode which was 
 best to be ado])tcd in the examination 
 of the son, and the crosscxamination of 
 the witness, and the follnwing mode was 
 adopted as the I)est under tlie peculiar 
 circuni-stances of the case :— The son was 
 first examined by the editor, at the request 
 of the learned judge, as to what lie had 
 heard the witness say, the witness being 
 kept out of court during such examina- 
 
 tion, and then the witness was called in 
 and cross-examined by the editor as to 
 the statements whieh the son had sworn 
 that he had made. The jury acquitted 
 the prisoner, although the evidence for 
 the prosecution was very strong. This 
 case has been mentioned, as it may servo 
 as a guide for the practice in ca-ses where 
 the priscnier wishes to call witnesses to 
 prove contradictory statements made by 
 witncs.ses for the jnosecution, without 
 having laid the ground for so doing in a 
 proper manner. (.'. 8. G. 
 
 (m) As to the practice on this subject 
 before this Act, see the Queen's case, 2 
 15. & 15. 28(3. If coun.sel suggests to tlie 
 court that he wishes to have a letter 
 written by a witness read immediately in 
 order to found certain (picstions upon its 
 contents, that cannot be well or ellec- 
 tually done witiiout reading tiio letter 
 itsidf ; in that case, for the more conve- 
 nient adminisiration of justice, the letter 
 is pi'rmitteil to be reail, but consiiiering 
 it as jiart of the evidenci' of the ctmnscl 
 juoposing it, and subject to all the con- 
 .sequences of it.s bi'iiig so eonsiilerod. 
 Ibid. -289, 290. When a letter is pro- 
 duced, tile court will allow a witness to 
 be asked, upon .showing the witnes.s only 
 a part or one or more lines of sueli letter, 
 and not the whole of it, whether ho wrote 
 such part. lb. 
 
 ()i) In order to contnulict by the 
 writing, it must l>e put in a.s evidence. 
 K. r. Kiley, 4 F. &: V. 904 ; H. v. Wright, 
 4 F. & V. 907.
 
 582 OJ Evidence. [book \'i. 
 
 and where tliat is the case, no difficulty as to its prodiicti*»n can 
 arise. But the writiuf,' may not Ijc in his possession, and, in the 
 most common cases in criminal trials, the depositions are in the 
 custody of the Court. Here however, also, no difficulty can arise, 
 as the court will, no douht, always permit or cause them to be 
 used for the jturpose of the clause. But the writing' may Ik.- in the 
 custody of other parties, and several (juostions may arise when; 
 that is the case. It may l)e in the custody of the prisoner, and 
 notice to produce it may have been given, or it may be in the 
 custody of a third party who has been subpcenaed ; in either of 
 these cases it is apprehended that the cross-examining party is 
 entitled to prove the notice, and to call for the writing, or to call 
 on the party subprcnaod to produce the writing: and it is now 
 clearly settled that such a course ouglit at once to be adopted, and 
 not postponed till the cross-examining party enters on his case, (o) 
 If the document be obtained in either of these modes, no diffi- 
 culty will occur ; but it may be that it may not be produced, 
 though it is shown to be in the custody of the prisoner or witness. 
 The question will then arise whether the judge has power to com- 
 pel its production ; the words 'it shall be competent for the judge, 
 at any time during the trial, to require the production of the 
 writing for his inspection,' are perfectly general, and, if they stood 
 alone, would seem to give the judge such power ; but they occur 
 in the proviso to the preceding part of the clause, which seems 
 plainly to contemplate that the document is in the hands of the 
 cross-examining party : and the}^ seem to have been introduced for 
 the purpose of enabling the judge to prevent an improper impres- 
 sion being produced by a partial communication of the contents of 
 the writing ; and, therefore, it admits of serious doubt whether it 
 would be held that the judge was empowered in such a case by this 
 clause to compel the production of the writing. Then, suppose the 
 writing not to be attainable in these cases, or that it is in the 
 possession of some person who has not been subpoenaed to produce 
 it, and is not present ; in such a case, as the power to cross-examine 
 as to any writing is given in perfectly general terms, there seems 
 no doubt that the right to cross-examine would exist ; but as, be- 
 fore any contradictory proof can be given, the attention of the 
 witness is to be called to the parts of the writing, {j'i) it seems to be 
 clear that in such a case no contradictory proof will be admissible. 
 Where the Lastly, if a ptxper written by the witness is proved to have been 
 
 paper is lost, j^^^ or destroyed (in which case the only mode of contradicting him 
 would be by producing afterw'ards some secondary evidence of the 
 contents of the paper), the counsel may cross-examine the witness 
 as to the contents of such paper), (g) and this might be done before 
 the new Act. Thus whereon the trial of an indictment which had 
 been found at the Monmouth Special Commission, it was proved 
 that at that Commission the depositions of the witnesses had been 
 frequently produced, and that they had been mislaid, and that 
 diligent search had been made for them several times, and they 
 could not be found ; Patteson, J., held that a witness might be 
 cross-examined as to what he had said before the magistrates by a 
 
 (o) Boyle v. Wiseman, 11 E.xcb. K. (p) See Shulden r. Serjeant, 1 F. & F. 
 
 360, and other cases, post, s. T. 322. 
 
 {q) 2 Phill. Ev. 439.
 
 CHAP. V. § III.] Impeachiiuj the Credit of Witnesses. 583 
 
 copy of the depositions, whicli was proved to be a correct 
 
 copy, (r) 
 
 A witness, who has been examined before commissioners in a statement 
 
 bankruptcy, may be asked whether he had mentioned a fact, which before Com- 
 
 he had just mentioned, before the commissioners, without i)uttino: ^'^/""^^ °^ 
 1 • • 1- • , 1 • 1 1 1 T • • 1 ■,'■■, ,.^ muKJuptcv. 
 
 his examination into Ins hand, as the object is to show that he did 
 
 not mention the fact, and he may admit that if he chooses ; if he 
 
 does not ask for the examination to rcfresli his memory, he may 
 
 answer without it if he chooses, {s) 
 
 It was once said that, if the counsel who cross-examines puts a Right of the 
 paper into the witness's hand, and puts (piestions on it, and any- opposite 
 thing comes of the (piestions founded upon it, the opposite counsel [nsS^ abu- 
 lias a right to see the paper, and re-examine upon it ; but if the ments. 
 cross-examination founded on the paper entirely fails, the opposite 
 counsel has no right to look at it. {t) But it has since been laid 
 down that whenever counsel puts a document into the hands of 
 a witness, and asks him whether it is in his handwriting, and then 
 proceeds to found any question on such document, the counsel on 
 the opposite side has a right to see it ; and the only case in which 
 tlie opposite counsel has not this right is where counsel, after 
 handing tlie document to the witness (and asking him whetber it 
 is his handwriting), goes no further, (u) 
 
 If a letter or other writing be tendered in evidence for the pur The jud^e is 
 pose of contradicting a witness, and a question is raised whether it to dcido .-w 
 was written by the party, it is for the judge to determine that yfapJier. 
 question, (iv) 
 
 Since the 28 Vict. c. 18, s. 5, it seems that the rules laid down Cross-exami- 
 by the judges as to the mode of cross-examining witnesses for tlie "^t^fo" ^^ '^'^' 
 Crown with respect to what they have previously sworn before the ^"'^^ "*"" 
 magistrate, and which has been reduced into writing in their 
 depositions, are no longer in force, {x) 
 
 The rules, which it seems appHed to depositions before a 
 coroner, {y) will be found in 7 C. it P. (JTli. {z) 
 
 (r) Eeg. V. Sliellard, 9 C. & P. 277. sitioii bufin-e ;i magistrate, lie oaiiiitit, on 
 
 (s) Ridley v. Gyde, 1 M. & Kok 197, his cross-exaniinatioii liy the itrisoner's 
 
 Tindal, C. J. counsel, he asked whether ho did or did 
 
 {t) Reg. V. Duncoinbo, 8 C. & P. 369, not, in his de])osition, niaki' sueli or such 
 
 Lord Deunian, C. J. a .statement, until the deposition itself 
 
 (it) Per Erie, J., in Cope i>. The Thames has been read, in order to manifest whe- 
 
 Ilaven Dock Comjiany, 2 C. k K. 757. ther such statenunt is or is not contained 
 
 The words between brackets are inserted therein ; and that such de^uisition must 
 
 from the marginal note, and render the be read as jiart of the evidence of tlie 
 
 passage consistent with the regular ])rac- cross-examining coun.sel. '2. Tlmt, after 
 
 tice. such depositiun has been read, the pri- 
 
 {w) Cooper V. Pawson, 1 V. k V. .1.50. soner's coun.sel may proceed in his cross- 
 
 "Wightraan, J. Poyle v. Wiseman, 11 o.xamination of the witness us to any .sup- 
 
 E.xch. R. 360. posed contradiction or variance between 
 
 {x) As to the practice before the the testimony of the witness in court and 
 
 above Act, see R. v. Taylor, 8 C. & P. his former deposition ; after wliirh the 
 
 726 ; R. V. Holden, 8 C. & P. 606 ; R. counsel for the prosecution may re-exa- 
 
 V. Ed\vard.s, 8 C. & P. 26; R. v. Price, mine the witness, and, after the prisoner's 
 
 7 Cox, C. C. 405 ; R. v. Moir, 4 Cox, counsel has addressed the jury, will \m 
 
 C. C. 279; R. v. Newton, 4 Cox, C. C. entitled to reply. And in oxse the counsel 
 
 262 ; R. V. Edwards, 8 C. & P. 2i) ; R. for the prisoner comments u^>on anysuj)- 
 
 V. Curtis, 2 C. & K. 763 ; R. r. Petd, 2 no.sed variance or contradiction, witliout 
 
 F. & F. 21. Imvinp read tin- depo.sition, the court inny 
 
 (?/) R. t'. Parnctt, 4 Cox, C. C. 269 ; dirc.-t it to be rea«i, and the couiim-I for 
 
 but see R. v. Alaloney, 9 Cox, C. C. 26. the prosecution will be entithil to reply 
 
 {z) These rules are : 1. That where a upon it. 3. That the witness cannot, in 
 
 witness for the Crown has made a depo- cross-cxaniination, be compelled to au-
 
 584 
 
 A dopofiition 
 i-:innnt lie j)tit 
 into the lianil 
 ol' tlio witness, 
 aiiil the wit- 
 nosH jiskcil 
 wlicther lio 
 
 ft'llllTUS to llis 
 
 jirovicuis 
 statement. 
 
 Whether tlie 
 judges vould 
 look at tlio 
 depositions. 
 
 Rea<ling a 
 deposition to a 
 witness. 
 
 Depositions 
 lost. 
 
 Of Evidence. 
 
 [book VI. 
 
 Tlie same rule 
 applies to the 
 counsel for the 
 prosecution 
 cross-examin- 
 ing a witness 
 for the 
 defence. 
 
 IV'fcic the alii.vc Act some casoH occurred in wliicli the coun.sel 
 for llio i)ris(»ii('i-, on cros.s-o.x'.'iniiiiing a witness for the prosecution, 
 olVcrcd to put into liis hand his deposition, and then prop(jsed to 
 ask liini whether, havint,^ looked at the paper, he still persevered 
 in the statement already made in his evidence in court; Parke, 
 li,, and Coltnian, J., had some douht as to the propriety of this 
 course; but, it having Lecn permitted by some judges, they 
 thought it right to allow it. They, however, a.sked the opinion of 
 the judges whether they were right, and the judges were of opinion 
 that the course pursued was inexpedient, and that it ought not 
 to be allowed in future, (a) 
 
 In one case, before the above Act, it seems to have been con- 
 sidered a fitting course for the judge to look at the depositions 
 while the witnes.scs were under examination, and question them as 
 to any discrepancy between them and their evidence ; (6) but in 
 other cases learned judges have refused, where counsel were em- 
 ployed by the prisoner, to look at the depositions at all. (c) 
 
 Where, before the above Act, the deposition was put in the 
 hands of a witness, and on being asked to read it he said he could 
 not read writing, it was held that there was no objection to the 
 deposition being read over to him, and the officer of the court read 
 it over to him accordingly, {d) 
 
 In a case, before the above Act, where it was proved that the 
 depositions had been regularly taken against the prisoner before 
 the magistrates, and returned to the proper officer, and that officer 
 proved that he had made diligent search after them, and could not 
 find them ; Patteson, J., held that the prisoner's counsel might 
 cross-examine from copies of them, which were proved by the 
 magistrate's clerk to be correct, (c) 
 
 The same rule applies as to the cros.s-examination of a w^itness 
 on his deposition by the counsel for the Crown as by the counsel 
 for the i^risoner. (/) 
 
 swev whether he did or did not make 
 sucli or such a statement before the ma- 
 gistrate, until after his deposition has 
 been read, audit appears that it contains 
 no mention of siieh statement. In that 
 event, the counsel for the prisoner may 
 proocei with his cross-examination, and 
 if the witness admits such statement to 
 have been made, he may conmient upon 
 such omission, or upon the effects of it 
 upon the other part of his testimony; or, 
 if the witness denies that he made such 
 statement, the counsel for the prisoner 
 may then, if such statement be material 
 to the matter in issue, call witnesses to 
 prove that he made such statement. But 
 in either event, the reading of the depo- 
 sition is the prisoner's evidence, and the 
 coimsel for the prosecution will be en- 
 titled to reply. 
 
 (<M Anonymous, cited in Keg. r. Ford, 
 2 Den. C. C. 245, from the ilSS. of 
 Parke, B. April 1843. Reg. v. Ford, 2 
 Den. C. C. 245. 5 Co.x, C. C. 184. Spring 
 Ass. 1851. Keg. r. Palmer, 5 Cox, C. C". 
 236. Pollock, C. B. S. P. April, 1851. 
 Keg. V. Brewer, C. C. 409, S. P. Black- 
 burn, J. Jan. ]8()3. 
 
 (h) Kex r. Edwards, supra. This is a 
 course which has not unfrequently been 
 adopted in cases where the prisoner has 
 had no counsel, and in such cases it ap- 
 jiears highlye.xpedient, as prisoners rarely 
 have co[iies of the depositions unless they 
 arc defended by counsel, and, even if 
 they had, probably would not be able 
 jirojierly to avail themselves of any con- 
 tradictions that might arise ; and it is to 
 be remembered that the depositions are 
 returned to the judge for the express 
 ]iurpose of enabling him to judge as to 
 the accuracy of the witnesses. C. S. G. 
 
 (c) Kex V. Thomas, 7 C. & P. 817. 
 Parke, B., as stated 8 C. & P. 27, and 
 that statement is correct. Keg. r. Hol- 
 den, S C. & P. 606. 
 
 {d) Kex !-. Edwards, S C. & P. 26. 
 Littlcdale, J., and Coleridge, J. But see 
 Keg. V. Tooker, 4 Cox, 93 (b). Keg. r. 
 Matthews, 4 Cox, C. C. 93, August 1849. 
 Probably this ease is inaccurately re- 
 ported. See K. V. Ford, supra. 
 
 (,') Keg. r. Shellard, 9 C. & P. 277. 
 
 (/) Keg. V. Muller, 10 Cox, C. C. 43. 
 Pollock, C. B., and Martin, B.
 
 CHAP. V. § III.] Impeaching the Credit of Witnesses. 585 
 
 In a case, before the above Act, where, when the prisoners were The dcposi- 
 
 first brought before the magistrate charged Avith the felony, the *""\^ °"'y ®^' 
 
 witnesses were sworn, examined by the magistrate, and cross- actual matter 
 
 examined by the prisoners, and written minutes of the examination which takes 
 
 and cross-examination were made bv the clerk to the magistrates ^j''^'^^ '"=^°'"° 
 
 111- • /•! •■' 1 •, J.1 the inagis- 
 
 uncler the inspection ot the magistrates, tliese minutes were tlien t,.,^^, where 
 
 sent to the office of the clerk to the magistrates, and there de- therefore mi- 
 
 livered to a clerk named Tasker, who proceeded to write the depo- ""^'^^ '"'■^1 
 
 sitions from the minutes. The witnesses attended in the office, examinatious 
 
 and in the course of writing the depositions Tasker put some ques- of witnesses 
 
 tions to each of them, for the purpose of rendering the depositions before the 
 
 more correct, clear, and complete. The answers given to these ancf then a' 
 
 questions were inserted in the dejDOsitions. The magistrate was clerk, in the 
 
 not present, nor were the prisoners at the office of the clerk to the '^''fence of^tlu: 
 
 magistrates. The depositions having been thus written, the wit- magistrate, 
 
 nesses appeared again before the magistrates, and in the presence drew up depo- 
 
 of the prisoners were resworn ; the depositions were read over to sjtions from 
 
 I 1 ,' 11 • r-r- 1 I z' ■ i.- the imnutcs, 
 
 tliem, and a lull opportunity was anorded tor cross-examination asking the 
 before the depositions were signed by the witnesses. Upon these witnesses any 
 circumstances appearing on the trial, the counsel for the prisoners question that 
 
 iio ^ ^ ,.. occurred tor 
 
 proposed to ask one of the witnesses for the Crown this question, ^iie purpose of 
 
 ' Did you not tell Mr. Tasker that you were watching the prisoner exphmation, 
 
 Christopher till a quarter before one o'clock ? ' The question was J^j^^'u/r'^'Ji. 
 
 material, and had reference to what was said by the witness in goner's counsel 
 
 answer to some question put by Tasker, as above stated, in the had a right to 
 
 course of writing: the depositions, and the witness's answer would, ask what a 
 
 , o . , ^ ' , , . . rpi 1 witness said in 
 
 according to tlie evidence, appear on the depositions, i ne depo- answer to a 
 sitions were not read or tendered in evidence. The question was question put 
 overruled by the court ; and it was contended, on a case reserved, |',J\\'|g ^[^^encc 
 that if it were a legal deposition, it only excluded an inquiry into ^f the magis- 
 what took place before the magistrate. It was answered that, if tratc. 
 Tasker had taken down the answers, and the witness had signed 
 them, that paper would exclude evidence of what was said, and 
 that it was like a statement contained in a letter, (g) Wilde, C. J., 
 ' We think the question proper and legal, and that an answer 
 should have been required. It is objected that the answer was to 
 be found in a paper signed by the witness, which must be regarded 
 as a de23osition, having accpiired that character from the circum- 
 stances under which it was made. But the ground upon which a 
 deiJosition is exclusive evidence of a matter contained in it, is the 
 presumption that the magi.strate has done his duty, and taken 
 down all that was material in the testimony of the witnes.s. But 
 Tasker was a mere stranger ; he could not, by any act of his, 
 attach to the writing a character which would exclude jjarol 
 evidence of what was so written ; it does not become primary 
 evidence of such matter: the witness's own words are the primary 
 evidence of the statement. Suppose the witness had saitl some- 
 thing, and had then written it down him.self, his writing wouKl not 
 exclude his speech. Why then should Talker's writing do so ? 
 The whole argument was founded on an incorrect analogy. The 
 conviction, therefore, was wrong.' {h) 
 
 (g) It %vas also contuiuli'd that the dc- objection, 
 position was not a legal deposition at all ; (/i) lug. v. ChristopluT, 1 Den. C. C. 
 
 Lut no opiuiou was pronounced on this 536. In the course of the argument
 
 58G Of Evidence. [liooK vi. 
 
 Whftt qucs- In onlcr to lay ii foundation for contradicting a witness, tlie 
 
 HNkr.i"to^lnv°a M'^'^'^^''^"*^ asked upon cross-examination must, in some way, be lo- 
 f<miiii:iiiou for lovaut to tliu matter in issue. Thus in an action for usury, the 
 coiiinulictoiy person with whom the contract, aUof^'^ed to l)c usurious, had lje<'M 
 cMiencc. made, was ])r()(hiccd as a witness foi- tlie plaintiff, and the counsel 
 
 i'or th(! dereiidunt ])i()|)osed to cross-examine liim as to other con- 
 tracts he had made with other persons, which were not usurious ; 
 intendin<^, if the witness answered in the affirmative, to draw the 
 conclusion that he luxd made the same contract with the defendant, 
 and if the witness denied tlic nature of those other contracts, to 
 call evidence to prove the contraiy, and tlicrehy destroy the wit- 
 ness's credit. But Lord J^JUenborou^di refused to suffer the question 
 to bo put, conceiving it to be entirely irrelevant to the issue in the 
 cause ; and the Court of King's Bench were afterwards all of 
 opinion that he had acted properly ; and they laid down the rule, 
 that it is not competent for counsel on cross-examination to ques- 
 tion the witness concerning a distinct collateral fact, which, if 
 answered affirmatively, is Avholly irrelevant to the matter in issue, 
 for the pvn-poso of discrediting him, if he answers in the negative, 
 In what cases by calling other witnesses to contradict him. (i) It need hardly 
 be'callca to*'^ be observed, if a question be wdiolly irrelevant, and therefore inj- 
 coiitrailict. properly asked on cross-examination, and the witness nevertheless 
 give an answer to it, the cross-examining party may not call evi- 
 dence to contradict that answer ; but it is further to be remarkeil, 
 that many questions may be asked with propriety on cross-exami- 
 nation, which are irrelevant to the matter in issue, yet are allow- 
 able because they go to the credit of the witness ; but the distinc- 
 tion is, as to the right to call evidence to contradict answers given 
 to questions put to shake a witness's credit, that if the questions go 
 merely to his credit, and are in other respects collateral to the 
 issue, evidence cannot be called to contradict the answers ; if they 
 not only go to his credit, but arc also connected with the subject of 
 inquiry, then it is allowable to call witnesses to contradict. Thus 
 if a witness be asked, on cross-examination, whether he has been 
 guilty of a crime, or any conduct wdiich would discredit him as a 
 witness, but is unconnected with the matters in issue, and he 
 denies it, his answer is conclusive, {j) 
 
 So where on the trial of an information charging a maltster with 
 having used a cistern for making malt without having previously 
 entered it, a witness was asked on cross-examination whether he 
 had not said that the officers of the Crown had offered him 20?. to 
 say that the cistern had been used, and he denied having said so ; 
 it was held that evidence was inadmissible to prove that he had 
 said so ; for the contradiction would be on a matter wholly irrele- 
 vant, and would in no way affect the character of the witness, (k) 
 
 Maule, J., said, 'Tasker usuij^cd :m an- to the issuo, Greeuough r. Eccles, 28 \j. 
 
 tbority. He can no more exchule parol J. C. P. 160, 5 C. B. K. S. 786. 
 evidence of the witness's .statement by re- {j) Ante, \>. 577. 
 
 ducing it to writing than any one present \k) A. G. ?•. Hitchcock, 1 Exoh. R. 
 
 at a seditious meeting can exchule parol 91. Pollock, C. B., said, 'The test 
 
 evidence of words there spoken by clioos- wliether the matter is collateral or not is 
 
 ing to make a memorandum of them.' this : if the answer of a witness is a matter 
 
 (i) Spencely v. Dc Willott, 7 East, E. which you would be allowed on your part 
 
 108. It .seems that the new Act has not to prove in evidence — if it have such a 
 
 limited the right of a party calling a wit- connection with the issue that you would 
 
 ness to contradict him on facts relative be allowed to ^ive it in evidence — then
 
 587 
 
 As to speaking 
 English. 
 
 As tu knowing 
 the prisoner. 
 
 CHAP. V. § III.] Im2^eac}iing the Credit of Witnesses. 
 
 Where on a trial for rape the prisoner called a witness, who 
 stated that he could not speak English, and was accordingly sworn 
 and examined in Irish, tln'ough an interpreter, and on cross-exa- 
 mination he again denied that he could speak English, and he also 
 denied that he had spoken in Englisli to two girls within tlic last 
 few days, and these girls were called, and proved that he had so 
 spoken to them in English ; upon a case reserved, it Avas held that 
 the evidence of these girls ought not to have been admitted. {I) 
 But where a woman, who was the only witness to prove an abomi- 
 nable offence, swore that she did not know the prisoner previously, 
 evidence was admitted that they knew oacli other well, and were, 
 in fact, intimately acquainted, {ni) 
 
 Wliere in an action on a joint and several promissory note made Palmer r 
 by the father and grandfather of the defendant, who was sued as ■"■"^^■^'■• 
 the administrator of his grandfather, the defence was that the 
 plaintiff had forged the note in question, and also another note, in 
 order to cover the forgery of the first note, and a ciiarge had been 
 preferred against the plaintiff for the forgery before the magis- 
 trates, but dismissed ; the defendant was examined as a witness, 
 and was asked on cross-examination whether his father had not, 
 after the charge was preferred against the plaintiff, said in his pre- 
 sence that ' he was sorry he had forgotten that he had signed two 
 notes.' The defendant answered in the negative. It was held that 
 the plaintiff's counsel could not call a witness, in whose presence 
 the father had made the statement, for the purpose of showing that 
 the father had made the statement, and that the defendant had 
 heard it ; for the issue sought to be raised was purely colhiteral. {n) 
 So where in an action for an assault on the plaintiti's wife, she 
 swore that the assault was of an indecent character ; the defendant 
 denied it, and on cross-examination denied other indecent assaults 
 on some young persons ; and evidence on the part of the defendant 
 was tendered to disprove these imputations, which was objected to 
 unless evidence was admitted in support of them ; it was held that 
 such evidence on the one side or the other was inadmissible, as 
 the matter inquired into was quite collateral to the issue to be 
 tried, (o) 
 
 Tolman v. 
 John>tone. 
 
 it is a matter on wliiuli you may contra- 
 dict him. [But this seems to be much 
 too narrow a rule, and so said O'Brien, 
 J., in Keg. r Burke, iiifru.'] If you ask 
 a witness whether he has not said so and 
 so, and tin; matter he is supjiosedto have 
 said, would, if he had said it, contradict 
 any other part of his testimony, then you 
 may call another witness to prove that he 
 hiul said so, in onh'r that tlie jury may 
 believe the account of tlic transaction 
 which he gave to that other witness to be 
 the truth, and that the statement he makes 
 on oath in the witness box is not true 
 (more accurately, in order that the juiy 
 may disbelieve or doubt the statement of 
 the witness). It must be connected with 
 the issue as a matter capable of being dis- 
 tinctly given in evidence, or it must be 
 so far connected with it as to be a nuitter 
 which, if answered in a paiticular way, 
 would contradict a part of the witness's 
 testimony ; and if it is neither the one 
 
 nor the other of these, it is collateral to, 
 though in some .sense it maybe considered 
 as connected with, the subject of iu'piiry.' 
 Tlie editor has inserted the ]>arts between 
 brackets, t". S. «. 
 
 (0 iteg. r. Hurke, S Cox, C. 0. 44. 
 Three ju(lges thought the evidence rightly 
 recei\ed. 
 
 (m) l!eg. V. Dennis, 3 F. & K. 502. 
 The admissibility of the eviih'Uce was not 
 disiaited, and I'yles, ,1. , left it to the jury 
 in favour of the ]irisoner. 
 
 (?i) I'almer r. Tnnver, 8 E.xch. \\. 24". 
 Aldirson, H., said, 'It is ii statement 
 made in the j)reseuce of the defendant of 
 a fact not within his own knowledge ; if 
 it had been made in the jin MMuie of the 
 grandfather, who is remcsented by tlic 
 defendant, the case might Imve been dif- 
 ferent.' 
 
 {o) Tolman r. Johnstone, 2 F. k F. 
 fiO, Cockburn, C. J., after cousulting the 
 other judges of Q. 13.
 
 588 
 
 A witiie.HM may 
 1)0 rontra- 
 (licUiil iiM to 
 fu«;tH MliDwiiif; 
 liis ntat<> iif 
 iniiiil liivviii'ils 
 
 Ihr .,|.|..,silo 
 l>:ilty. 
 
 Whillicr .1 
 witness is tlio 
 iiiistross of the 
 ]>l:iiiititr. 
 
 Where tlie 
 niisconduc't 
 relates to the 
 subject of tlie 
 inquiry. 
 
 Contrary 
 statement on a 
 previous trial. 
 
 Of Emdence. [book vi. 
 
 Tl, is ;illt)\v.'U)lc to a-sk a witness in what nianiior he stands 
 atlcctcd towards the opposite party in tlie cau.se, and whether he 
 (h)es not stand in such a relation to that person as is likely to affect 
 him. and pievent him from having an nnprojndiced state of mind, 
 and whi'thcr he has not used expressions imjuitin*^ that he would 
 he revenged on some one, or that he would give such evidence as 
 might dispose of the cause in one way or the other; and if he 
 denies it, evidence may be given a.s to what he said, not with 
 the view of having a direct effect, but to show what i.s the state of 
 mind of that witness, in order that the jury may exercise their 
 opinion as to how far he is to be l)elieved. (p) Where therefore, 
 in an action on a promissory note (in which the defence appears to 
 have been that the note was forged), the female servant of the 
 j)laintiff, who was one of the attesting witnesses to the note, was 
 asked on cross-examination whether she did not constantly sleep 
 in the same bed with the plaintiff, which .she denied ; Coleridge, J., 
 held that a witness might be called by the defendant to contradict 
 her ; as tlie question Avas whether the witness had contracted such 
 a relation with the plaintiff as might induce her tlie more readily 
 to conspire with him to support a forgery : just in the .same way as 
 if she had been asked if she was the sister or daughter of the plain- 
 tiff, and had denied that. But if the question had been whether 
 the witness had Avalked the streets as a common prostitute, that 
 would have been a collateral issue, and, if she had denied it, she 
 could not have been contradicted. (5) 
 
 If the imputed misconduct be relative to the subject of inquiry, 
 as, if a witness for the Crown be a.sked whether he had not said 
 that he would be revenged on the prisoner, and would soon fix him 
 in gaol, (?•) or whether he had not made declarations to procure 
 persons con-uptly to give evidence in support of the prosecution, (.s) 
 then evidence may be called to contradict him, if he denies the 
 words or declaration imputed to him. Thus where on an indict- 
 ment for an indecent assault on a girl, another girl denied in cross- 
 examination that two letters were in her handwriting ; and on the 
 part of the prisoner, the suggestion was that the charge was the 
 result of a conspiracy among the children and their parents ; it was 
 held that it might be proved that these letters were in the hand- 
 writing of the girl, and that the letters might be read ; but that 
 they were only evidence for the purpose of detracting from the 
 credit of the girl, {t) 
 
 Where on one trial the jury were discharged, and on the second 
 trial a witness admitted in cross-examination that she had been in 
 England and had prosecuted for a felony ; it was held that it might 
 be proved that on the former trial she had denied that she had 
 ever been in England or had prosecuted there ; for, no matter 
 whether the question was relevant or irrelevant to the present 
 
 (p) Per PoUock, C. B., A. G. v. Hitch- 
 cock, supra. 
 
 {q) Thomas t-. David, 7 (.'. & P. 350. 
 In .Melhuish v. Collier, lo g. B. S83, 
 Coleridge, J., said, 'The principle 1 went 
 upon ui Thomas r. David was that the 
 fact was one that the defendaut might 
 have proved iu chief.' 
 
 (/•) Yewin'scase, 2 Campb. 633. 
 
 (s) The Queen's case, 2 B. & B. 311. 
 
 {t) Reg. !■. M'Gavaran, 6 Cox, C. C. 6i. 
 "NVillianis, J. The letters spoke of stick- 
 ing to the charge made against the pri- 
 soners, but there was no proof that they 
 had been delivered to the persons to whom 
 they were addressed.
 
 CHAP. V. § III.] Imijeachiny the Credit of Witnesses. 
 
 issue, it Avent to the consistency of her evidence on the two 
 trials, (u) 
 
 If the witness declines to give any answer to such a question 
 proposed to him, by reason of the tendency thereof to criminate 
 himself, and the court is of opinion that he cannot be compelled to 
 answer, the adverse party has also, in this instance, his subsequent 
 opportunity of tendering his proof of the matter, which is received, 
 if by law it ought to be received, {v) 
 
 In one case, where a witness said on cross-examination that he 
 had no recollection of a certain declaration one way or the other, 
 without expressly denying it ; Tindal, C. J., held that a person 
 could not be called to prove such declaration ; as he had never heard 
 such evidence admitted in contradiction, except when the witness 
 had expressly denied the declaration, {iv) But in a later case where 
 a witness neither admitted nor denied a verbal statement relevant 
 to the matter at issue ; Parke, B., held that evidence was admis- 
 sible to show that the witness had made such a statement, (x) 
 
 And now by the 28 & 29 Vict. c. 18, s. 4, ' if a witness on cross- 
 examination as to a former statement made by him relative to the 
 subject-matter of the indictment or proceeding, and inconsistent 
 with his present testimony, does not distinctly admit that he has 
 made such statement, proof may be given that he did in fact make 
 it ; but before such proof can be given, the circumstances of the 
 supposed statement, sufficient to designate the particular occasion, 
 must be mentioned to the witness, and he must be asked whether 
 or not he has made such statement.' {.rx) 
 
 3rdly. The credit of a witness maybe impeached, not only by 
 giving evidence to prove statements made by him at variance with 
 his testimony, but by calling witnesses to prove his declarations 
 and acts touching the subject-matter of inquiry, {y) And the rules 
 above stated, as to the necessity of a previous cross-examination of 
 the witness whom it is proposed to discredit, apply equally to this 
 method of discrediting him as to the last. So that if it is intended 
 to offer evidence of former declarations of a witness, or of acts done 
 by him, though not with a view to contradict his statement upon 
 oath in examination in chief, but with a view of discrediting him 
 as a corrupt witness ; in this case also it has been determined that 
 
 589 
 
 When the wit- 
 ness declines 
 to answer. 
 
 Where a wit- 
 ness iloos not 
 directly 
 answer. 
 
 3. By proof of 
 witness's acts 
 and declara- 
 tions touching 
 the cause. 
 
 Previous cross- 
 examination 
 necessary. 
 
 (?t) Ke^. r. Korke, 6 Cox, C. C. 196. 
 Lefroy, C J., and Jlonalian, C". J. 
 
 (v) The Queeu's case, 2 15. & 15. 313, 
 314. 
 
 (w) Paine v. liccston, 1 I\l. & Rob. 20. 
 
 Ix) Crowley v. Page, 7 C. & P. 7811. 
 The learned Baron said, ' Evidence of 
 statements by witnesses on other occasions 
 relevant to the matter at issue, and incon- 
 sistent with the testimony f,'iven by them 
 on the trial, is always admissible, in order 
 to impeach the value of that testimony ; 
 but it is only such statements as are rele- 
 vant that arc admissible, and in order to 
 lay a foundation for the admission of 
 such contradictory statements, and to 
 enable the witness to cxjilain them, and, 
 as 1 conceive, for that purpose only, the 
 witness may lie asked wlicther he ever 
 said what is suggested to him, with the 
 name of the person to whom or in whose 
 
 jiresence he is sujiposed to liavc said it, 
 or some other circumstance s\illicient to 
 designate the particidar occasion. If the 
 witness, on the cros.s-e.\aminatinn, admits 
 the conversation imputed to him, there is 
 no necessity for giving otlier eviilence of 
 it ; but if lie says he does not recollect, 
 that is not an admission, and j'ou may 
 give evideiu'c on the other side to prove 
 that the witness did say wliat is imputed, 
 always supposing tlie statement to Im- re- 
 levant to the matter at issue. This hiw 
 always been my practice, and if it wore 
 not .so you could never contradict a 
 witness who said he could not remem- 
 ber.' 
 
 (.c.c) This section is similar to the 
 C. L. I'. Act, 18r)4, 8. 2:?. S.C KvbiTg 
 V. Kyberg, 32 L. .1. P. M. k \. 112. 
 
 (i/) The Queen's case, 2 li. & B. 311.
 
 iOO 
 
 Of Kridciico. 
 
 [rook vr. 
 
 Rc-examin.i- 
 t ion. 
 
 Conyersations 
 with a party 
 to a suit and 
 with a third 
 person. 
 
 thu witness sIkmiUI 1)0 |)n'viously quostioncd as to such declara- 
 tidiis, III- such Mf^ts, on tlio cross-ox;uiiination ; {z) for in tlio one 
 c.'iso :is well ;is the other an opportunity must be affordo*! the wit- 
 ness of oxplaininj; liis con(hict h(;fore (evidence can be ad<hiced to 
 ini|)each his credit by proof of the fact. Thus where the witness's 
 moral character is relevant to the issue, expressions of the witness 
 may l)e proved without the previou.s infpiiry, if they tend merely 
 to (lisL,Mace the witness by showing that he has made iiny)ecoming 
 declarations ; but even if they be of such a nature, the introduc- 
 tory ([uestion must not be dispensed with, if tlioy tend likewise to 
 contradict some part of the witness's evidence. Therefore in an 
 action for seducing the plaintiff's daughter, which the daughter 
 proves, the defendant cannot give evidence that she has talked of 
 another person as her seducer and the father of her child, unless 
 she be first asked on cross-examination Avhether she ever used 
 those expressions. («) 
 
 After a witness had been cross-examined respecting his former 
 statements and declarations, for the purpose of affecting his credit, 
 the counsel who called him has a right to re-examine him so as to 
 give him an opportunity of explaining such statements and decla- 
 rations. Thus if that which the witness has stated in answer to 
 the question on his cross-examination arose out of the inquiries of 
 the person with whom he had the conversation, the witness may be 
 asked in re-examination wdiat those inquiries were. (6) And he 
 may' also be asked what induced him to give to that person the 
 account which he has stated in the cross-examination, (c) 
 
 But this, it should seem, is the limit of such a re-examination. 
 Lord C. J. Abbott, in delivering his opinion in the Queen's case, 
 said, ' I think the counsel has a right, upon a re-examination, to 
 ask all questions which maybe proper to draw forth an explanation 
 of the sense and meaning of the expressions used by the witness 
 on cross-examination, if they be in themselves doubtful ; and, also, 
 of the motive by which the witness was induced to use those ex- 
 pressions ; but I think he has no right to go further, and to intro- 
 duce matter new in itself, and not suited to the purpo.se of explain- 
 ing eitlier the expressions or the motives of the witness.' (d) 
 
 His lordship afterwards observed, 'I distinguish between a con- 
 versation which a witness may have had with a party to the suit, 
 whether criminal or civil, and a conversation with a third per.son. 
 The conversations of a party to the suit, relative to the subject- 
 matter of the suit, are, in themselves, evidence against him in the 
 suit, and, if a counsel chooses to ask a witness as to anything wdiich 
 may have been said by an adverse party, the counsel for that party 
 has a right to lay before the court the whole which was said by his 
 client in the same conversation ; not only so much as may explain 
 or qualify the matter introduced by the previous examination, but 
 even matter not properly connected with the part introduced upon 
 the previous examination : provided only that it relate to the sub- 
 ject-matter of the suit ; because it would not be just to take part 
 of a conversation a,s evidence against a party, without giving to the 
 party, at the same time, the benefit of the entire residue of what 
 
 (;) 2 B. & B. 311. (M 2 B. k B. 295. 
 
 (a) Carpenter r. Wall, supra, 11 A. & (c) Ibid. 
 
 E. 803. (d) 2B. k B. 297.
 
 CHAP. V. § III.] ImpcachiiKj the Credit of Witnesses. 591 
 
 he said on the same occasion. But the conversation of a witness 
 with a third person is not in itself evidence in the suit against any 
 party to the suit. It becomes evidence only as it may affect the 
 cliaracter and credit of the witness, which may be affected by his 
 antecedent declarations, and by the motive under which he made 
 them ; but when once all which had constituted the motive and in- 
 ducement, and all which may show the meaning of the words and 
 declarations has been laid before the court, the court becomes pos- 
 sessed of all which can affect the character or credit of the witness, 
 and all beyond this is, in my opinion, irrelevant and incompe- 
 tent.' (e) 
 
 But the reasoning and the grounds of the supposed distinction 
 have been since considered by the Court of Queen's Bench, and 
 after full consideration that court oveiTuled the distinction, and 
 adopted the more safe and intelligible principle that the office of re- 
 examination is to be confined to showing the true colour and bearing 
 of the matter elicited by cross-examination, and that new facts or 
 new statements, not tending to explain the witness's previous 
 answers, ought not to be admitted. (/) 
 
 Thus where an accomplice being cross-examined with a view to 
 throw discredit on his testimony, confessed that he had committed 
 two robberies the same night as the one chai'ged in the indict- 
 ment, and on re-examination it was proposed to ask him as to the 
 particular circumstances attending those robberies, and the persons 
 in whose company they were committed, in order to show that the 
 prisoners were the persons ; Littledale, J., refused to allow it, 
 observing that the cross-examination having been only Avith a view 
 to the witness's discredit, it was not competent to the counsel for the 
 ])rosecution, on re-examination, to ask questions not arising out of 
 such cross-examination, in order to criminate tlie prisoners, (r/) 
 
 4thly. The credit of a witness may be impeached by proof of his •*■ % P^oof oi 
 general character. It is now completely settled with respect to *'i*'"*=^'* 
 this mode of discrediting a witness, that general evidence only, and '^ ^^^ 
 not evidence as to particular facts, can be employed ; (It) for if it 
 were allowable to give evidence of particular colhitei-al flxcts to affect 
 liis credit, the inquiry might branch out into an indefinite number 
 of issues. Besides which, althougli a witness may be supposed 
 capable of defending his general character, no man can come pre- 
 pared to give an answer to particular facts, which might be sworn 
 against him to impeach his character, without any previous notice 
 
 (c) 2 B. & B. 297, 298. The other tion that tlie plaiiitilF had iiislituted a 
 
 judges, except Mr. Justice Best, agieed prosecution for perjury against a witness 
 
 with tlie Lord Chief .Justice ; but the examined uLjainst liiili in the action in 
 
 liOrd Chancellor and Lord ]{edesdale wiiich he iiad her-n arresti-d, and that tlio 
 
 were of the same opinion with Mr. J, phiintilf iiad said that ho liad been re- 
 
 liest, and differed from the other judges, nianiUd Ijy the Insolvent Debtors' Court- 
 
 inasmuch as they thought that the entire on his re-examiuatiou it was proposed to 
 
 conversation ought to he admitted, uotas askhim whether tiic I'laintilfhad not also 
 
 evidence of any fact that might boas- o" the trial of the indictment, sworn that 
 
 sorted in the course of it, but solely and the advance in question was a gift and 
 
 simply as explanatory of the witness's not a loan ; but Lord I'enman, C. .L 
 
 motives, and as setting his character and ruled that the question could not he put' 
 
 credit in a fair, full, and impartial point and the court held that tlu" ruling was 
 
 of view. riglit. 
 
 (/) 2 Phil. Ev. 443, citing Prince r. (;/) Fletcher' .s ca.se, 1 Lew. IIL 
 
 .Samo, 7 A. & K. C27, where in an action (h) Hex r. Watson, 2 .*^tark. N. P. C. 
 
 for a malicious arrest, a witness called 149. Hull. X. P. 296. 2 I'liil. Kv. 480. 
 
 for the plaintiff stated on cross-exauiina- 1 Stark. Kv. \i:^7.
 
 r)92 
 
 Of Evidence. 
 
 [book VI. 
 
 Character of 
 witness, how- 
 supported. 
 
 given to liim. (i) The proper mode, therefore, of examining a wit- 
 ness, who is called to discredit a previous witness Ijy proof of his 
 character, is to ask whether the present witness has had the means 
 of knowing the former witness's general character, and wheth(;r, 
 from such knowledge, he would believe him on his oath, (^j In 
 order to answer this (juestion negatively it is not necessary that the 
 witness should ever have heard such person give evidence on oath, 
 as the real (juestion is whether the witness has such a knowdedgc of 
 the person's character and conduct as enables him conscientiously to 
 say that it is impossible to place any reliance on any statement 
 that such person may make. (/>•) It has been held upon an indict- 
 ment for perjury that a witness for the defendant could not be 
 asked whether, from having heard a witness for the prosecution 
 give evidence on the trial of a former cause, he considered that the 
 testimony of that witness could be relied on ; nor Avhether he ever 
 heard him commit perjury; nor whether he would not believe the 
 witness because he had heard him commit perjury ; as the witness 
 must speak for the general character, (l) 
 
 Where upon an indictment for stealing money it was opened on 
 the part of the Crown that an accomplice and one Mercer would be 
 called as witnesses ; Parke, J., both before and after those persons 
 were called, allowed the prisoner's counsel to ask the other wit- 
 nesses for the prosecution whether the accomplice and Mercer were 
 not persons of very bad character, {m) 
 
 In answer to such evidence against character, the other party may 
 cross-examine the witness as to his means of knowledge, and the 
 grounds of his opinion, or may attack his general character, {n) 
 
 Where a witness on cross-examination stated that he had be- 
 come bail for a witness who had been previously examined, and he 
 believed it w-as on a charge of keeping a gaming-house ; in order 
 to prevent any impression being thereby made against the char- 
 acter of the previous witness, Gaselee, J., and Taunton, J., 
 allowed the previous witness to be recalled, and asked whether 
 the charge of keeping the gaming-house was in fact a true charge 
 or not. (o) 
 
 A party cannot bring evidence to confirm the character of a 
 w'ituess before the credit of that witness has been impeached, 
 either upon cross-examination, or by the testimony of other wit- 
 nesses, {i)) Thus in a case where a witness for one party asserts 
 one thing, and a witness for the other party asserts the contrary, and 
 direct fraud is not imputed to either, evidence to the good char- 
 acter of either witness is not admissible, {q) But if the character 
 of a witness has been impeached (although, according to some 
 authorities, upon cross-examination only), evidence on the other 
 side may be given in supi)ort of the character of the witness by 
 general evidence of good conduct, (r) So in a case where two 
 
 (i) Bull. N. r. 206. 
 
 {j ) Mawson v. Hartsiuk, 4 Esp. N. P. 
 C. 102. K. V. Brown, 36 L. J. M. C. 
 59 ; 10 Cox, C. C. 453. 
 
 {k) Rex r. Bispham, 4 C. & P. 392. 
 Parke. J., and Garrow, B. 
 
 (0 Kcx V. Hemp, 5 C. & P. 46S. Lord 
 Denman, C. J. 
 
 («i) Rex t'. Nichols, 5 C. & P. 600. 
 
 ()i) 1 Stark. Ev. 238, 
 
 (o) Rex r. Noel, 6 C. & P. 336. 
 
 (})) Bisliop of Durham v. Bearaont, 1 
 Campb. 207. 1 Stark. Ev. 252. 
 
 i^q) ] Campb. 207. 
 
 (>■) 1 Stark. Ev. 252. Bate r. Hill, 
 1 C. & P. 100. Rex V. Clarke, 2 Stark. 
 N, P. C.241, where the prosecutrix, upon 
 an indictment for an attempt to commit
 
 CHAP. V. § III.] Impeacliing the Credit of Witnesses. 593 
 
 attesting witnesses to a will, wliich was impeached on account of 
 fraud in procuring it, were dead, and a surviving attesting witness 
 was called, and spoke to a fraudulent execution, it was held allow- 
 able to call evidence to the general good character of the deceased 
 witnesses : (.s) and Lord EUenborough, in approving of that de- 
 cision, observed, that if they had boon alive they might have been 
 produced, and their characters would have a]jpeared on cross- 
 examination ; and being dead, justice required that an opportunity 
 should bo given of showing what credit was to be given to their 
 attestation, {t) Whether in answer to proof of statements made Previous 
 by a witness in variance with his testimony at the trial, evidence similar sUite- 
 may be given by the party who called the witness, that he affii-med "'*^"^'*- 
 the same thing on other occasions, and is still consistent with him- 
 self, is a point on which there are conflicting authorities, {v.) The 
 better opinion seems to be that such evidence is not admissible, ex- 
 cept in cases where the counsel on the otlier side impute a desi»Tu 
 to misrepresent from some motive of interest or relationship ; there, 
 in order to repel such imputation, it may be proper to show that 
 the witness made a similar statement at a time when the .supposed 
 motive did not exist, or when motives of interest Avould have 
 prompted him to make a different statement of the facts, (i-) Thus 
 where Neville was indicted for perjury committed on the trial of 
 Barnes for setting fire to a rick, and Homing swore that Barnes was 
 with him at a distance from the rick, but on cross-examination ad- 
 mitted that, on the trial for arson, he had given a different account, 
 which tended to support the charge against Barnes ; he said, how- 
 ever, that the day after the fire he had told the fixcts to Morgan, a 
 constable, as he now stated them, and that he had been induced to 
 make a false statement on the trial for arson ; it was lield that 
 Morgan might be called to prove that Homing had made a state- 
 ment to him the day after the fire for the purpose of setting up the 
 witness, but that the particulars of the statement could not be asked 
 by the counsel for the Crown, (iv) 
 
 By the 28 & 29 Vict. c. IS, s. 3, 'a party producing a witness How far .i 
 shall not be allowed to impeach his character by general evidence i''*''|^ '":*•' ''.'** 
 of bad character, {x) but he may, in case the witness .shall, in the witncs.-i. " 
 opinion of the judge, prove adverse, {y) contradict him by other 
 evidence, or, by leave of the judge, prove that he has made at 
 other times a statement inconsistent (r) with his j^rcsent testi- 
 
 a rape, having been cro.ss-fxaiiiiiR'il as to AVilliaiiis, J. 
 
 liaviiig been sent to 1 lie house oi' eonce- (x) As to the i»racticu before this Act 
 
 tion on a ehar;,'e of theft, evidence of her see Kwer r. Ambrose, 3 H. & C. 750. 
 
 subsequent good eoncluet was adniitteil in IJuli. N. 1'. iil?. 
 
 sniiport of the jirosecution : oir. IIol- (//) A witness is not iidvoi-so within tlio 
 
 royd, J. ; but see Doihl /'. Noiris, 3 meaning of tiiis seelion, merely Iwoauso 
 
 Campb. 510. Ids testimony i.s unfavourable to the party 
 
 (v) By Lord Khhni in Doe v. Steiihen- calling him. To be "advei-se " so ils to 
 
 son, 3 ks]). 284. V>y liOrd Kcnyon in entitle the party calling the witne.ss t<> 
 
 Doc V. AN'alkcr, 1 I'lsp. 50. I'rovis c. jnovi' that he has made at another time 
 
 lieed, 5 Uiiigli. 1!. \'.j7>. a stateiufut imonsistrnt with his jirrsent 
 
 (t) 1 Campb. 210. testimony, he must in the opinion of the 
 
 (m) Gilb. Kv. 135. I'lill. N. 1'. 2!' I. judge bo "hostile. " tJivenough r. Eccle.s, 
 
 \v) 2 Phill. Ev. 445. 1 Stark. Kv. 253. 5 C. W. (N. S.> 780. 28 I,. .1. C. 1*. ICO. 
 
 See also the opinion expressed by Haylev, See Martin r. Travellers' In.surauco Com- 
 
 J., in Wihen v. Law, 3 Stark." N. V. i\ pany, 1 V. & F. 505. 
 
 63. See also ante, I'.ook VI., eliap. 1, (;) Sie Jaekson v. Thom.ison, 31 L. J. 
 
 ,s. 3, Of Ucamiy Evidenc: (}. 1'.. 11. 1 15. k S. 745. Hvbcrg i: 
 
 (w) Keg. V. Neville, G Cox, C. (.'. GO. Hybi-rg, 32 L. .1. .Mat.C.i. 112. " 
 
 VOL. III. q g
 
 r)i)4 
 
 ( >l I'lrnhiicc 
 
 I'.OOK V 
 
 The jud^'c may 
 l)\it ill tlic 
 ilcpositioii i)f a 
 witness who 
 gives ii con- 
 trary state- 
 ment oil the 
 trial. 
 
 iiioiiy ; (u) l)ul bt-fuic such List mentioned proof tun be gi\en, the 
 eiiciunstunccs of the supposed statement, sufficient to designate 
 tlie particuhir occasion, must be mcaitioned to the witness, and lie 
 must lie asked wlietlier or not he lias made such statement, {h) 
 
 ]f a witness gives c^vidence contrary to that which the party 
 calling him expects, the party is at liberty to make out his own 
 case by other witnesses, and to show that the facts which his own 
 witness had stated contrary to his interests were otherwise ; (c) for 
 such facts are evidence in the cause, and the other Avitnesses are 
 not called directly to discredit the first witness, but the impeach- 
 ment of his credit is incidental and conseciuential only, (c?) 
 
 ]jeforo the above Act, u]ion an indictment for murder, the coun- 
 sel lor the prosecution at first declined examining the prisoner's 
 mother, but the judge thought it right to have her examined (her 
 name being on the back of the indictment as having been examined 
 before the grand jury), which was accordingly done, and she gave 
 her evidence in favour of the prisoner ; the judge ordered her depo- 
 sition before the coroner to be read, in order to .show its inconsis- 
 tency with her j^resent testimony. And the twelve judges after- 
 wards Avere of opinion, that the judge had a right to call for the 
 deposition, in order to impeach the witness's credit ; and Lord 
 Ellenborough and Mansfield, C. J., thought that the prosecutor had 
 the same right, (e) 
 
 Single witne.s.s 
 
 generally 
 
 sufficient. 
 
 In case of per- 
 jury. 
 
 High treason. 
 
 Sec. IV. 
 Hovj many Witnesses are necessary. 
 
 In general, the testimony of a single witness is a sufficient legal 
 ground for conviction of a crime or misdemeanor, (/) even though 
 that single witness may have been the accomplice in guilt of the 
 accused person, {g) But there are two exceptions to this rule, viz., 
 the cases of treason and perjury. 
 
 The evidence of one witness is not sufficient to convict the de- 
 fendant on an indictment for perjury ; as in such case there would 
 be only one oath against another, (li) 
 
 In high treason, no one can be convicted, unless by the oaths 
 and testimony of two witnesses, either both to the same overt act, 
 or one of them to one, and the other of them to another overt act 
 of the same treason ; iiidcss the party indicted shall willingly, 
 
 («) As to tlic rule on this suLjcct 
 
 before the above Act, .see 2 Phill. Ev. 
 
 450. "Wright v. ]5eckett, 1 M. & Kob. 
 
 414. Dunn v. Aslett, 2 M. & Kob. 122. 
 
 Holdsworth v. Mayor of Dartmouth, 2 
 
 ]M. k Kob. 153. Winter r. IJull, 2 M. 
 
 & Kob. 357. Allay v. Hutcliings, 2 JI. 
 
 & Eob. 358. Melhuish v. Collier, 15 
 
 Q. B. 878. (irceuough v. Ecclcs, siijini. 
 
 a. V. Fan-, 8C. & P. 768. 
 
 {b) There is a similar pi'ovisiou to this 
 
 in the C. L. P. Act, 1854 ; see sec. 22. 
 
 (c) 3 B. & C. 749, 750, 751. Fried- 
 lander V. The London Assurance Coui- 
 panv, 4 B. & Ad. 193. Eichardson v. 
 Allan, 2 Stark. N. P. C. 334. Alexander 
 V. Gibson, 2 Cauipb. 555. In Lowe v. 
 
 Jollille, 1 "\V. Bl. 365, the subscribing 
 witness to a deed swore to the testator's 
 insanity ; yet the plaintiti' was allowed to 
 examine other witnesses in support of his 
 cas<', to prove that the testator was sane. 
 So in Pike v. Badmering, cited in 2 Stra. 
 1096, where the three subscribing wit- 
 nesses to a will denied their hands, the 
 plaintiff wa-s permitted to contradict that 
 evidence. 
 
 (</) Bull. N. P. 297. 
 
 (() Oldroyd's case, R. & R. 88. See 
 the cases ou this subject, ante, p. 525. 
 
 if) 4 Black. Com. 357. 2 Hawk. c. 46, 
 •s. 3. 
 
 (g) Post, p. 600. 
 
 (h) Ante, p. 72.
 
 CHAP. V. § v.] Compdling Attendance of Witnesses. 595 
 
 without violence, in open court confess the same. (/) Tlie confes- 
 sion contemplated, is a confession in open court, or pleading guilt}'; 
 any other confession, whether made to persons in authority or not, 
 is evidence in the case, and must be proved, like other facts, by 
 two witnesses, and it will have its weight with tlie jury according 
 to the circumstances, as confessions have in all criminal cases, (j) 
 However, by 39 & 40 Geo. 3, c. 93, ' in all cases of high treason, Tvo witnesses 
 when the overt act alleged in the indictment is the assassination "°* necessary 
 of the King, or any direct attempt against his life, or against pei^sonTut- 
 his person, tlie prisoner shall be tried according to the same order tacks on tho 
 of trial, and upon the like evidence, as if he stood charged with ^^"«' 
 murder.' 
 
 Sec. V. 
 
 Hoiv the Attendance of Witnesses to he compelled and 
 remunerated. 
 
 There are two methods in which the attendance of witnesses in Attendance of 
 criminal cases may be compelled : 1st — whicli is the more ordi- witnesses, how- 
 nary and effectual means — the justice or coroner that takes the <^°™P^1''^^'- 
 examination of the person accused, and the information of the 
 witnesses, may at that time, or at any time after and before the 
 trial, bind over the witnesses to appear, (/r) 2ndly, by process of 
 subpoena. 
 
 1st. If a witness does not appear, according to the terms of the r.y rccogni- 
 recognizance in which he is bound, at the court at which the trial 'anoc. 
 is intended to be, to give evidence against the party accused, the 
 recognizance may be estreated, and the penalty levied. Justices 
 have authority by the 11 & 12 Vict. c. 42, .s. 20, to bind all per- 
 sons (Z) by recognizance to give evidence in all cases of treason, 
 felony, and misdemeanor, and coroners have the like autliority, by 
 the 7 Goo. 4, c. 64, s. 4, in cases of murder and manslaughter. By 
 the 11 & 12 Yict. c. 42, s. 20, if a witness who has been examined 
 before a justice of the peace refuses to be bound over, the justice 
 may commit him until the trial of the accused, unless in the mean- 
 time he duly enters into a recognizance to prosecute or give evi- 
 dence ; and as this is merely an enactment of the previously 
 existing law, it should seem that a coroner has the same power 
 where a witness refuses to enter into a recognizance before him. (})*) 
 And Avhere before the 11 & 12 Vict. c. 42, the witness was a 
 
 (0 TJy the 1 E.hv. C, c. ]2, s. 22. 0") 1 East, V.V. 1.11. ImisUt's Crown 
 
 6Ed\v. 6, 0. 11, s. 12. 7 & 8 "Will. 3, Law, 1U\ &c. 
 
 c. 3. In liif^h treason lonoernin;,' the (l) 2 Hale, V. C. 282. 7 (ieo. 4, o. 64, 
 
 coin, or tho King's seals, or sif,'n manual, s. 4. 
 
 one witness was suHicient, as at conwnon (I) As to l)intlin>r tlio prisoner's wit- 
 law before the reign of Edward \l. ; nesses to give evideiico, ace 30 \: 31 
 by the 1 & 2 Ph. & U. c 10, s. 12, and Vie.f. c. 3.';, an/r, r>13. 
 1 & 2 Ph. & M.o. 11, s. 3 (now repealed). (»i) 2 Hale, 1'. C. 282. Tl.'nnet r. Wat- 
 It was agreed by all the judges, that these .son, 3 M. iNc S. 1. In Kvans r. Hces, 12 
 statutes extended to allollenecs touching A. & E. fi.'i, it w.is lield that a wnri:nit to 
 tho impairing of coin, which shouhl bring a witness liefon- a justieo to Jind 
 afterwards be made treason. tJahagan's snilioient bail to aiijM'ar and give evidence 
 case, 1 Leach, 42. 1 East, P. C. 12'v>. at the next assi/es wos bad ; as it did not 
 S. C. apiiear that tlie witness had been oxa-
 
 dtires tecum. 
 
 596 ^V f'^'i'idrna'. [iiOOK VI. 
 
 iiijirriud woman, ainl (IicrLiforo under :i legal disability to enter into 
 a recof,Miiz;infi', the justice was lield justified in committing licr, 
 upon lior refusal to appear to give evidence or to find sureties for 
 lier appearance. (/?) 
 
 ]{y Mil-puna. -ud. 'J'lie attendance^ of witnesses, if tliey have not entered into 
 
 re-cognizances, may be compelled liy process of sidjpojna, wliicli may 
 eillier be issued from the; Crown OlHce, (o) or may be made out by 
 the clerk of tlie peace of the sessions, or the clerk of assize, (p) 
 And by the 45 Ceo. '^, c. f)2, s. 3, the service of a sul^poena on a 
 witness in any one of the parts of the United Kingdom, for his ap- 
 pearance on a criminal piosecution in any other of the parts of the 
 same, shall be as effectual as if it had been in that part where he 
 is recjuired to appear. (7) 
 
 Service of The prosecutor ought not to include more than four persons in 
 
 suhpivna. one subpa3na. (/•) And as soon as the writ is obtained, a copy 
 
 should be made out for each witness, and served on him person- 
 ally, and at the same time the writ should be shown him. {x) The 
 Service must be personal, and made a reasonable time before the 
 day of trial ; for witnesses ought to have a convenient time to jjut 
 their own affairs in such order that their attendance on the court 
 may be of as little prejudice to themselves as possible. (/) 
 
 A subpoena requiring the witness to attend on the commission 
 days of the assizes to give evidence on a trial extends to the whole 
 assizes, which arc but one day in contemplation of law. (u) 
 
 Subpcena If a witness have in his possession any deeds or writings, which 
 
 it is deemed necessary to produce at the trial, there should be a 
 special clause inserted in the subpoena, called a duces tecum, com- 
 manding the witness to bring them with him. (y) The writ of 
 subpoena duces tecum is the regular and established process of the 
 court ; and though it was formerly doubted, yet it is now settled, 
 that this process is of compulsory obligation on the witness to pro- 
 duce the deeds or writings re(juiretl of him, Avhicli he has in his 
 possession, and which he has no lawful or reasonable excuse for 
 withholding ; of the validity of wdiich excuse the court, and not the 
 Avitness, is to judge, {iv) And a person in possession of any paper, 
 Avho is .served with a suhpa'iia duces tecum, is bound to produce it, 
 Avhethcr the paper belong to him or not, or though there be a 
 regular wa}^ prescribed by law for obtaining it ; (.c) and if he refuse 
 to do so, the Court of Queen's Bench Avill grant an attachment 
 against him. {y) The Court, however, in all such cases, will exer- 
 
 niined licfoio tlie justice, or refused to Tidd. 855. 
 
 enter into a rccof^nizance ; but Lord Don- (s) In order to save expense, it is 
 
 man said, 'I throw no doubt on the settled that service of a ticket, containing 
 
 power of the magistrate to do all that is the substance of a writ, will be as etlec- 
 
 necessary to comjiel the attemlance of tual as service of the writ itself. 2 riiill. 
 
 those witnesses whom he knows to be Kv. 373. 
 
 material.' {I) 2 Thill. Ev. 373. 
 
 («) Beuuet v. Watson, supra. {u) Scholes r. Hilton, 10 ^I. & "\V. 15. 
 
 (0) Rex V. King, 8 T. K. 585. (v) 2 PhQl. Ev. 371. 
 
 (p) 1 Chit. C. L. 608. It is more \w) Amey v. Long, 9 East, 473. 2 
 
 prudent to sue it out of the Crown OHiee, Phill. Ev. 371. As to when a bank is 
 
 if an application for an attachment for not compellable to produce its books un- 
 
 non-attendance is likely to become necis- le.^s a judge of one of the superior couits 
 
 sary. See iwst, p. 599. .so orders ; see 39 & 40 Vict. c. 48, s. 8, 
 
 (q) Tarts' in this Act mean England, in the Appendix. 
 
 Scotland, and Ireland ; and not counties, (.c) Tidd. 85(5. Coreen v. Dubois, 
 
 &c. Rex f. Brownell, 1 A. & E. 598. Holt, X. P. C. 239. 
 
 (>•) Doe r. Andrews, Cowi>. i\o. {>/) Reg. v. Greeuaway, 7 Q. B. 126.
 
 CHAP. V. § v.] Compelling Attendance of Witnesses. 
 
 cise their discretion in deciding what papers shall be produced, and 
 under what qualifications as respects the interest of the witness, {z) 
 But the court Avill not allow counsel for the witness to argue 
 against his liability to produce the documents, (a) A person 
 bringing papers under a HuhpoRua duces tecum may be compelled 
 to produce them without being sworn, (li) 
 
 If a witness who is sworn to give evidence has a document in his 
 possession in court, he may be compelled to produce it ; for he is 
 just as much under the control of the court as if he liatl brought 
 the document under a suhpaina duces tecum, (c) 
 
 In a criminal case, if a person is in court, he ma}'' be compelled 
 to be examined as a witness, although he has neither been bound 
 by recognizance nor served with a subpauia to give evidence, and 
 an indictment for the obstruction of a public footway is considered 
 as a criminal prosecution for this purpose, (d) 
 
 The Court Avill not grant a Bench warrant to compel the attend- 
 ance of a witness, who is keeping out of the way in oollusion with 
 the defendants, (e) 
 
 By the 16 & 17 Vict. c. 80, s. 0, 'it shall be lawful for one of 
 Her Majesty's principal secretaries of state, or any judge of the 
 Court of Queen's Bench or Common Pleas, or any baron of the 
 Exchequer, in any case where he may sec fit to do so, upon appli- 
 cation by affidavit, to issue a warrant or order under his hand for 
 bringing up any prisoner or person confined in any gaol, prison, or 
 place, under any sentence or under commitment for trial or other- 
 wise (except under process in any civil action, suit, or proceeding), 
 before any court, judge, justice, or other judicature, to be examined 
 as a witness in any cause or matter, civil or criminal, depending 
 or to be inquired of, or determined in or before such court, judge, 
 justice, or judicature ; and the person required by any such war- 
 rant or order to be so brought before such court, judge, justice, or 
 other judicature, shall be so brought under the same care and 
 custody, and be dealt with in like manner in all respects, as a 
 prisoner re(]uired by any writ oi hahcds corjm.s awarded by an}- of 
 Her Majesty's superior courts of law at Westminster to be brought 
 before such court to be examined as a witness in any cause or 
 matter depending before such court is now by law re<]uired to bo 
 dealt with.' ( /') 
 
 597 
 
 Person present 
 in court. 
 
 Bench war- 
 rant. 
 
 Secretary of 
 state may 
 issue his 
 warrant for 
 bringing up a 
 prisoner (not 
 in custody on 
 civil process) 
 to give evi- 
 dence. 
 
 (~) Ti.l.I. S:.(j. 2 riiill. Kv. :;7]. It 
 will be oliserv'(:<l lliat llicrc is a ilistinc- 
 tion between the ublij,'aliun of a witness 
 to answer, tlio«j,'h it may sulijret him to 
 a civil responsibility, ami the ubli/^aliou 
 to produce writings umlcr a subiMcna. 
 See ante, p. 5G0. If a shJii>o:iui diicrs 
 tecum be served, the party must bring his 
 deeds in obedience to the subpiena ; but 
 if he states them to be his title deeds, no 
 judge will ever conipcd liini to produce 
 them. I'iekering r. Xoyes, 1 !>. & C. 
 2(i;'., Hex r. iluntcr, 15 V. & 1'. fltU, and 
 MSS. C". S. G. As to wlicther an attm- 
 iicy can be compelled to produce deeds 
 upon which he has a lien. See Hope r. 
 ],iddcll, '24 L. J. Ch. GOl. Kemp r. 
 King, 2 ^I. & Kob. V-ll. Doc v. JtosF, 
 
 ((() Doc dcm. Itowelille v. Karl of 
 
 Kgremont, 2 ll.k Itob. :;,st;. i{,,ir,., 15. 
 
 \l>) Davis r. Dale-, .M. »t Malk. ."iH. 
 Tindal, (.'. J. Ke.t v. Murlis, il)id. note, 
 liasidee, .F., and 'I'annton, .1. I'erry r. 
 Gibson, 1 A. & K. 18. 
 
 (c) Snelgrove r. Stevens, C i^ M. ."JOS. 
 Crcsswcll, J. Doe deni. I,oscond>(! v. 
 ("lilfonl, 2 C. & K. 4J8. AhU-rson, IJ. 
 Reg. r. North. 1 Cox, ('. C. 258. J)wvor 
 V. Collins, 7 Kxeh. OlJJi. 
 
 ('/) l!ex V. .Sadler, 4 C. & P. 218. 
 l.itll.ilale, .1. 
 
 (»■) Keg. r. Cniwf.inl, 6 Cox, C. C. 
 •181. 
 
 (/) lly 30 .^: 31 Vi> t. c. .^'i, s. 10, 
 where rceognizanees shall have been 
 entered into lor the ap|H'ainnee of nny 
 person to take his trial for any olFcnee at 
 any co\irt of criminal jurisiiietion, and a 
 bill of indictment shall be found against
 
 5;)3 Of I'hidencc. [book vi. 
 
 jfahrnK rovpii.'i W'lici) ;i wiliK'ss is ill cusloily miller civil procesH, or on board a 
 ,id icKtijlcdit- ,sliij> uiidfi- llic coiiiiiiaiKl of a,u ollicer who refuses to permit his 
 ^'""'' ullciKlaiicc, the siilipieiia is ineffectual, l)iit a Juihrjin covjmn ad 
 
 icsli/lcdiKlnvi may be obtained to ]>n\\<2; liini up; for which an 
 application may be made to any one of the judjL,^es or barons of 
 the Courts of King's Bench, Common Pleas, and Exchequer, in 
 England or Irehxnd, who have discretionary power to grant it to 
 any part of the United Kingdom, to bring a witness l^efore any 
 court of record, to 1)0 examined before such court, or any grand, 
 petit, or other jury, in any cause or matter, civil or criminal. (;j) 
 The application for this writ must be made upon an affidavit 
 sworn to by the party applying, stating that the party is a material 
 ■witness and willing to attend; {It) and if he be at a distance, it 
 should be shown how he is material (i) The writ being sued out 
 should be left with the sheriff, or other officer, in whose custody the 
 witness is detained, who will bring him up, upon being paifl his 
 reasonable charges. (./) If a witness be a prisoner of war, a Juihcaa 
 corpus will not lie to bring him up, but an order from the Secre- 
 tary of State must be obtained, (/i) 
 
 Upon an affidavit that a person confined as a lunatic is not 
 dangerous, but in a fit state to be brought up, a habeas corpus 
 may be granted in order that he may be examined as a Avitness. {I) 
 And wdiere a Avitness is under duress of some third person, as a 
 sailor on board a man-of-war, his attendance may be obtained 
 by the same means, {m) 
 FJuliiwn.i for At common law, a defendant in capital cases had no means of 
 
 prisoner. compelling the attendance of witnesses without the special order of 
 
 the Court; {n) although in misdemeanors the defendant has always 
 been allowed to take out subpa-nas. (o) But the 7 Will. 3, c. 3, 
 s. 7, provided, that in cases of high treason, where corruption of 
 blood might be worked, the persons indicted shall have the like 
 process of the Court Avhere they shall be tried, to compel their 
 witnesses to appear for them, as is usually granted to compel 
 witnesses to aj^pear against them ; and since the 1 Anne, st. 2, c. 9, 
 s. 3, by which it is provided that witnesses for the prisoner, in 
 case of treason or felony, shall be sworn in the same manner as 
 witnesses for the Crown, and be subject to the same punishment 
 for perjury, the process by subpoena is allowed to defendants in 
 cases of felony as well as in other instances, {ij) 
 Remcfty If a party, having been served Avith a subpcena, neglect to 
 
 a-ainst person appcav iu obedicncc to it, an application may be made to the 
 
 liim, ami such person shall be tlicuiu the to attend only applies when the party is 
 
 prison belonging to the jurisdiction of on board ship, and not then in all cases. 
 
 such court, under warrant of conunitment, (,/) 2 Thill. Ev. 375. 
 
 or under sentence for some other oll'encc, (k) Furly v. Xewnham, 2 Dougl. 419. 
 
 it shall be lawful for the llourt, by order in (/) Fenuell v. Tait, 5 Tyrw. K. -218. 
 
 writing, to direct the governor of the said (m) Kex r. Roddain, Cowp. 672. 1 
 
 prison to bring up the body of such Stark. Evid. 105. 
 
 person iu order that ho may be arraigned (u) 4 Blac. Com. 359. 2 Hawk. c. 46, 
 
 upon .such indictment, without writ of .s. 170. If they had attended they could 
 
 habeas corpus, and the said governor not have been sworn before the 1 Ann. 
 
 shall thereupon obey such order. st. 2, c. 9, s. 3. 
 
 (</) 43 Geo. 3, c. 140. 44 Geo. 3, c. (o) 2 Hawk. P. C. c. 46, s. 170. 
 
 lO-i. 2 Phill. Ev. 374, 375. fl (p) 2 Hawk. P. C. c. 46, s. 172. See 
 
 (A) Rex r. Koddam, Cowp. 672. nntc, p. 513, as to magistrates binding 
 
 (/) Tidd. 853. It is said in 1 Chitt. over the prisoner's witnesses to give evi- 
 
 . L. 610, that the affidavit of readiness dence.
 
 CHAP. V. § v.] Compelling Attendance of Witnesses. 599 
 
 Court of Queen's Bcncli, if the subpoena issued from the Crown neglecting to 
 Office, for an attachment against him ; [q) and where the process 'ippear on 
 is served in one part of the United Kingdom for the appearance ^"'^P'^'^^- 
 of the witness in another of the parts, the Court issuing the 
 same may, upon proof to their satisfaction of the due service 
 of the subpoena, transmit a certiorari of tlic default of the M'itncss, 
 under the seal of the Court, or under the hand of one of the 
 justices thereof, to the Court of King's Bench if the service were 
 in England, to the Court of Justiciary if in Scotland, and to the 
 Court of King's Bench in Ireland, if in Ireland ; which courts are 
 empowered to punish the witness in the same way as if he had 
 disobeyed a subpoena issued out of those courts^ provided the 
 expenses have been tendered, (r) It has been doubted whether Expenses need 
 in all cases, as well as in those within the last- mentioned statute, ^o"^ be tcn- 
 a witness may not lawfully refuse to obey a subpcena in a cri- 
 minal prosecution, as well as a civil suit, unless he has a tender 
 of his reasonable expenses ; but the better opinion seems to be, 
 that witnesses making default on criminal prosecutions are not 
 exempted from attachment, on the ground that their expenses 
 were not tendered at the time of the service of the subpcena ; 
 although the Court would have good reason to excuse them for 
 not obeying the summons, if in fact they had not the means of 
 defraying the necessary expenses of the journey, (.s) 
 
 As to jDayment of witnesses' expenses and compensating them 
 for loss of time, see vol. 1, p. 86. 
 
 A person subpoenaed as a witness, or bound over by recogni- Protection of 
 zance, either to prosecute or give evidence, or attending volunturily 
 for the bondjide purpose of giving evidence, is privileged from 
 arrest during the necessary time occupied in going to the place 
 where his attendance is required, in staying there for the purpose 
 of such attendance, and in returning from that place, (t) And in 
 allowing witnesses time sufficient for these purposes, the courts arc 
 
 (7) Rex V. King, 8 T. 11. 585. And a grand jury, altliough lie oltjocted on the 
 
 witness who refuses, after being sub- ground tliat his exiionsos luid not )>ccu 
 
 pienaed, to attend to give evidence for a paid. In Kex v. (.'ooke, 1 C. & V. 321, 
 
 defendant, is liable to an attachment as an indictment for a consiiirncy removed 
 
 in the case of being subpcenaed by a pro- into the King's IJencIi by ortiorari, a. 
 
 secutor. 1 Stark. Ev. 8(3. witness called by tin- defendant stated 
 
 (/•) 43 Geo. 3, c. 92, ss. 3, i. 1 (.'liit. before lie was examined, that at the tinio 
 
 Cr. L. G14. It is said to be doubtful he was served with a sulii»ina, no money 
 
 whether the justices at sessions, &c., have was paid him; lio tlicrefore asked that 
 
 authority to issue an attaclinient, and the judge would order the defendant to 
 
 that the only mode of proceeding against pay him his expenses before he was ex- 
 
 a witness in such a case is by indictment. amined. I'aik, J. A. J., liaving con- 
 
 Archb. Cr. L. 248. suited with (Jarrow, 15., .said they were of 
 
 (s) 2 riiill. Ev. -383; but see 1 Chit. opinion that the judge had no power iu 
 Cr. L. 613. At York Summir Assizes, a criminal ca.se to order a defendant to 
 1820, Bayley, J., rule<l that an unwilling j>ay a witnes.s his exix-nse.s, .■ilthough sub- 
 witness, who required to be j)rt/"f before p<rnaed, and though the imlietmcnt cnnio 
 he f'ave evidence, could not demaml it. to Ite tri<' I as a civil record. See also 
 He°said, ' I fear I liave not the power to Tell v. Daubeny, ."i Kxeli. ]{. O.'.r.. 
 order you your expenses." An.lun asking (0 Meekins c. Smith. 1 H. HI. »53<j. 
 the bar if any one recollected an instan<p, Lightfoot r ( "luneron, 2 151. 1 113. Chil- 
 Scarlett answered, 'It is not done- in d.iston r. 15arn-lt, 11 Ka.st, 439. Arding 
 criminal cases.' MS. 1 Chetw. i5urn. »-. Flower, 8 T. K. .'■.3ti. Hut this privilege 
 1001. In Keg. v. Cousens, Gloucester does not extend to arrests bv his bail, for 
 Spr. Ass. 1843, Wightman, J., directed the purpose of being surrendered ; for he 
 an officer of the Ecclesiastical Court, who is supposeil to be in their custo<ly even 
 had brought a will from London under a while attending as a witness. Ex parte 
 suhpccna daces (ccum, to go before the Lyne, 3 Stark. N. 1\ C. 132. 
 
 arrest.
 
 coo 
 
 Kvitlcnco of 
 witnesscH resi- 
 lient iibi'onil. 
 
 Of Eridawe. 
 
 [r,ooK VI 
 
 always (lis|)0.scil to be lihoral. (") Tl' a witness uiidi.-r th(.'.s{3 circmn- 
 stanccs be arrested, tlie court mil, of which thi- subpo'iia issued, or 
 lh(> jiid^c of the court in which tlic cause has been or is to be trie<l, 
 will, upon .'ipplication, order him to b(' discharj^ed. (v) 
 
 When any oiVcnce has arisen in India, which is tried in this 
 et)untry, the evidence of" witnesses resident in India may be ob- 
 tained in the manner prescribed by the 13 Geo. 3, c. G3, ss. 40, 
 Ik {ir) And in case of a prosecution for any offence committdl 
 abroad by any person employed in the public service, tiie evidence 
 of witnesses resident abroad may be obtained in the mode pointe<l 
 out l)y the 42 Geo. 3, c. tSo. 
 
 Ai'inovcmcut. 
 
 Present prac- 
 tice as to ad- 
 mitting accom- 
 plices as 
 witnesses. 
 
 Sec. VI. 
 
 Of Accowplicrfi. (r) 
 
 The practice of admitting the testimony of accomplices and the 
 promise of pardon, express or implied, under whicli they usually 
 give their evidence, were introduced instead of the ancient system 
 of approvement, Avhich Lord Hale, in his pleas of the Crown, 
 speaks of as having been already long disused. (?/) Approvement 
 was when a prisoner, arraigned for treason or felony, confessed the 
 fact before plea pleaded, and appealed or accused others his accom- 
 plices of the same crime, in order to obtain his pardon, (s) He 
 Avas also bound to discover on oath, not only the particular crime 
 charged upon him, but all treasons and felonies of which he could 
 give any information, {a) It Avas purely in the discretion of the 
 court to permit the approvement or not; if they alloAved it, the 
 party accused Avas put on his trial : Avhereon, if he Avas convicted, 
 the approver had his pardon ex debito jiistitke : (b) if he Avas 
 acquitted, the approver received judgment of death upon his own 
 confession of the indictment, (c) 
 
 All the gootl that could be expected from this method of ap- 
 provement is now more fully provided for and secured by one of 
 the following methods : 1st, By special proclamation in the Gazette 
 or otherwise, pai'don is sometimes promised upon certain conditions. 
 Accomplices Avithin this class have a 'right to pardon, {d) 2udly, 
 
 (u) 1 Phill. Ev. 4. 
 
 (v) Aichb. Cr. I'l. 248. 
 
 {w) Sec ante, p. 535, as to intonoga- 
 tories by consent. 
 
 (x) Befoiv the recent Act, by Avliich a 
 person convictcil of a crime is not inconi- 
 pcti'nt as a witness on that account, an 
 accomplice was a competent witness be- 
 fore conviction and judgment, h'e.x r. 
 I'astell L'areinion, 8 East, K. 77. 2 Hawk, 
 r. C. c. 4li, ss. 94. }».5. Tone's case, 
 Kel. 17, 18. 1 Hale, 1\ (". ;Vu3, 304. 
 1 Phill. Ev. 28. K.'x r. Wcstlvcr, 1 
 Leach, 12. Kex r. L'us.scll, IJ. & M. 
 C. C. 1\. 356. And this was so, though 
 he was indicted, if not put on his trial at 
 the same time witli the prisoner against 
 whom he gave evidence. Bilmore's case, 
 
 1 Hale, 305. Kcx r. Clark, ibid. note. 
 
 2 Stuk. Kv. 12. And .see Keg. i: Lyons, 
 It C. & r. 55,'., posf, p. 619. Sir Tercv 
 Crosby's ca.se, 1 Hale, V. C. 303. 1 Tliilf. 
 
 r. C. c. 4<i, 
 1 Phill. Ev. 
 
 Ev. 28, No promise of pardon or reward 
 rendered a witness incompetent. 2 Hale, 
 P. C. 280. Tong'scase, Kel. 17. Laver's 
 case, 6 St. Tr. 259. 2 Hawk. 
 s. 135. 1 Hale, P. C. 304. 
 27. 
 
 ((/) 2 Hale, 22l?. 
 
 (:) 4 IJlack. Com. 330. 
 
 (.>) 2 Hale, P. C. 227. 
 
 (/') 4 lUack. Com. 330. 
 
 (0 Ibid. 
 
 ((/) Kex I', lludd. Cowp. 334, by Lord 
 Manslield, in skiving judgment. S. P. S. 
 C. 1 Leach, '^118, 4tli ed. Put the 
 promise of a pardon by proclamation in 
 the Gazette does not give the party a legal 
 right to exemption from punishment. 
 Kex v. Garside, 2 Ad. & E. 2t>(5. He 
 sho\dd apply to the juilge to postpone the 
 execution, in order tiiat an ap|dication 
 may be made to the secretary of stiitefor 
 a pardon.
 
 CHAP. V 
 
 § VI.] 
 
 Of Accomplices. 
 
 By the practice most usually adopted accomplices are admitted to 
 give evidence for the Crown, under an implied promise of pardon, 
 on condition of their making a full and fair confessionof the truth, (c) 
 On a strict and ample performance of this condition, to the satis- 
 faction of the judge presiding at the trial (although they are not of 
 right entitled to pardon), they have an equitable title to a recom- 
 mendation for the Queen's mercy. (/) They cannot plead this in 
 bar to an indictment against them, nor can they avail themselves 
 of it as a defence on their trial, though it may be made the ground 
 of a motion for putting off the trial, in order to give the prisoner 
 time for an application in another quarter, {cj) ' And if an accom- 
 plice, after being received as a witness against his companions, 
 breaks the condition on which he is admitted, and refuses to give 
 full and fair information, he will be sent to trial to answer for liis 
 share of guilt in the transaction, {h) It is not a matter of course to 
 admit an offender as witness on the trial of his associates, not even 
 
 601 
 
 {r) IJex ?'. TiUild, svpra. 
 
 (/) Il)id. The e(|uit.al)le claim to par- 
 don does not protect an accomplice from 
 prosecutions for other offences, in which 
 he was not concerned with the prisoner, 
 but it is entirely in the discretion of tlie 
 judge whether he will recommend the 
 ])risoner to mercy. Eex v. Lee, 1!. & ]{. 
 ijfjl. Itex r. Brunton, ibid. ihi. S. C. 
 MS. Ijuru's Just, b}' Clietwynd, tit. ^tp- 
 prover. With respect to such olfences, 
 therefore, he is not bound to answer on 
 his cross-examination. West's case, M.S. 
 1 I'liill. I'lv. 28. "NMicre an accomjdice 
 made a disclosure of pro])crty, which was 
 tlio suliject-matter of a difl'ercnt robbery 
 by the same 2iarties, under the imiiression 
 that by the information he had iireviously 
 given as to the robbery of other ]iro[)erty 
 he had delivered himself from the conse- 
 quences of having the property he so 
 disclosed in his possession ; Coleridge, 
 .1., recommended the counsel for tlie 
 prosecution not to proceed against the 
 accomjilice for feloniously receiving such 
 ]iroperty. Garside's case, 2 Lew. 38. 
 It has been held in America that if 
 an accomplice a]>iiears to have been the 
 ])rincipal olfeuder, ho will be rejected. 
 Tlie IVople r. Wliipple, 9 Coweii, 7f'7, 
 Cireenl. Ev. 426 ; l>ut in Kiighind princi- 
 pals have frequently been alhnved to be- 
 come witnesses against acei'ssories. See 
 Wild's case, 1 Leach, 17, note (a). Anil 
 cases frecpiently occur where the accessoiy 
 is far the more giiilly party : as where 
 young persons have been induced to com- 
 mit crimes by the procnnunent of old 
 oflenders : and in sucli cases the young 
 persons are not unfrecinently adniilted as 
 witnesses for the Crown. 
 
 (r/) 1 Phill. Ev. 28. 
 
 (/() Ibid. Moore's case, 2 Lew. "7. la 
 cm; instance a prisoner, who had made a 
 confession after a rei^rescntation made to 
 him by a constable in gaol, that ids ac- 
 comitliccs liad been taken into custoily, 
 wiiich was not the fact, and who, after 
 having been admitted as a witness against 
 
 his associates, on a charge of maliciously 
 killing sheep, upon the trial denied all 
 knowledge of the subject, was afterwards 
 tried and convicted upon his confession. 
 L'ex r. ]jurle\', cor. Garrow, 15., Leices- 
 ter Lent Assizes, 1818. And the con- 
 viction was afterwards approved of l)y all 
 the judges. MS. 2 Stark. Ev. 13." So 
 where an accomjilice when sworn pre- 
 tended that he knew nothing of the steal- 
 ing of a sheep, Coleridge, J., comnntted 
 him for trial at the next assizes, when 
 he was convicted and transported, upon 
 proof of his stateinent made to a poliee- 
 nian before he was called as a witness. 
 Hex V. Smith, Gloucester Spr. and Sum. 
 Ass. 1841. So where an accomplice, who 
 was called as a witness against several 
 prisoners, gave evidence wliich showed 
 tiiat all, except one, who was apparently 
 the leader of the gaiig, were i)resent at 
 a robbery, but refused to give any evi- 
 dence as to that one being jiresent, and 
 the jury found all the prisoners guilty; 
 Parke, 15., thinking that the accomplit'c 
 had refused to stale that the jiarticular 
 prisoner was i)rc.scnt in order to screen 
 fiim, ordered the accomidicc to be kept 
 in custody till the next a.ssize.s, and then 
 tried lor the robbery. Kex r. Stokes and 
 others, Stallbrd Spr. Ass. 18:57. it }ia.s 
 been held in .\meriea, that if an aeconi- 
 pliie, liaving made a ]>rivate confession, 
 upon a promise of ])ardon made by tlic 
 attorney-general, should afterwards refuse 
 to testify, he may be convicted upon the 
 evidence of that confession. Common- 
 wealth V. Knn]>j), ]ti I'iek. 477. as cited 
 (becnl. I'.v. iJti. Anil where an accom- 
 jilice, who liad made a lull di.sijosmc of 
 the facts attemling the commission of a 
 burglary when before the comniitliiig 
 magistrate, rcfn.sod bcfoii- tlie grand jury 
 to give any evidence at all ; Wiglitninn, 
 ■I., ordered his name tube inserted in the 
 bill of indictment, .ind he was convicted 
 on his own confession. L'eg. r. Ilolliiam 
 and live others, Stnlford Sjir. A.ss. 1843.
 
 (302 Of Evidence. [book Vi. 
 
 Mt'ii r lie lias been so allowed by the committiiifj ma^nstralf,'. 'J'lie 
 i)iaclicc is (where the accomplice is in custody) for the counsel 
 fur the prosecution to move that the accomplice be allowed to go 
 bcfnic thf ;^M-and jury, pled,i,nu;,f his own opinion, after a perusal of 
 the facts of the case, that his testimony is essential. (0 And it is 
 in the discretion of the Court, under all the circumstances of the 
 case, whether the application be granted or refused. {]) And where 
 one prisoner pleaded guilty, and an application was made to admit 
 him as a witness against the other ; Hill, J., directed the witnesses, 
 who were relied upon to corroborate him, to l^e called first, and, if 
 their evidence was sufficiently strong, then the accomplice might 
 be examined as a witness. (/>) 
 Whore accom- This application is usually made before the bill is taken before 
 j.iice i.s jointly the "-rand jury, and if the application is granted, the accomplice 
 iuaictcd. -^ ^^^^ included in the indictment. {I) Upon an indictment for 
 
 conspiracy the court allowed an acquittal to be taken against some 
 of the defendants in order that they might be called as witnesses 
 for the prosecution, {m) And the same course may be adopted, 
 with the permission of the court, in a case of felony, (n) Upon an 
 indictment for rape, as soon as the jury were sworn, it was pro- 
 posed, on the part of the prosecution, that one of the prisoners 
 should be acquitted before the case was gone into, as he was in- 
 tended to be called as a Avitncss against the other prisoners, and 
 upon this being objected to, on behalf of the other prisoners ; 
 Williams, J. (having conferred with Alderson, B.) said, ' I had little 
 doubt as' to the course I ought to take, and my learned brother 
 entirely agrees with me that this is a matter very much of ordinary 
 occurrence. In cases of this kind the court, if it sees no cause to 
 the contrary, is in the habit of relying on the discretion of the 
 counsel who conduct the prosecution. I shall, therefore, in this 
 case intrust it to the discretion of the counsel whether he will have 
 
 ii) 2 Stark. Ev. 'J. If, however, the the accomplice was required ; Gumey, B. , 
 accomplice be taken before tlie graiul refusctl to permit one of the principals to 
 inry, by means of a surreptitious; ami il- become a witness. l!ex v. Mellor and 
 "icai order, the indictment so found is others, Stafford Sum. Ass. 1S33. So in 
 cMml. Doctor Dodd's case, 1 Leach, 15.5. Keg. v. Saimders and others, Worcester 
 Tt is not usual to adndt more than one Spr. Assizes, 18i2, on a motion to admit 
 accomidice. Barn.slev Rioters' case, 1 an accomplice, Patteson, J., said, 'I doubt 
 Lewin 5 Parke, J. Bnt under peculiar whether I .shall allow him to be a wit- 
 circumstances three have been admitted. ness ; if you want him for the purjiose of 
 Scott's case 2 Lew. 3(3, Lord Denman, identitication, and there is no corrobo- 
 C. J. In this case the accomplices spoke ration, that will not do.' And in Keg. r. 
 to d'itferent facts, and no one could prove Salt and others, Statlbrd Spr. Ass. 1843, 
 the whole. See Kex v. Noakes, 5 C. c^c P. where there was no corroboration of an 
 QOfi actomplice, "Wightman, J., refused to al- 
 
 (}) 1 Phill. Ev. 29. The court usually low hinr to become a witness, 
 considers not 'only whether the prisoners {k) Keg. v. Sparks, 1 F. & F. 3SS. 
 
 can be convicted without the evidence of (0 1 I'luU- ^-v. 29. „ ^. ,> „ 
 
 the accomplice, but also whether they (m) Ke.x v. Rowland, h. iS: Jl. >. 1 . b. 
 
 can be convicted with his evidence. II, 401. So formerly if an accomplice jointly 
 
 tiierefore, there lie suflicient evidence to indicted with others pleailed gxiilty, and 
 
 convict without his testimony, the court was lined by the court, and paid the line 
 
 will refuse to allow him to bo admitted (in a case where such fine might be iu)- 
 
 ns a witness. So if there be no reasonable posed by way of punishment, and where 
 
 pvobabilitv of a conviction even with the suffering the punishment restoreil 
 
 his evidence, the court will refuse to the competency), he might be called as a 
 
 admit him as a witness. Thus where witness by the other prisoners. Kex r. 
 
 several prisoners were committed as prin- Fletcher, 1 Str. 633. See also Rex r. 
 
 cipals, and several as receivei-s, but no Shennan, C. T. H. 303. 
 corroboration coidd be given as to the {n) \ Phill. Ev. 29. 
 
 receivers, against whom the evidence of
 
 CHAP. V. ^ VI.] Of Accomplices. 
 
 the prisoner acquitted before the case is gone into or not. I think 
 it ahirost of course.' (o) 
 
 On an indictment for murder against two prisoners, one of them, 
 without being convicted or acquitted, was called as a witness against 
 the other, who alone was put on her trial, it was held that this 
 might be done ; but per Cockburn, C. J. : 'I felt the force of wliat 
 was said about the fellow prisoner coming forward to give evidence 
 without having been first acquitted, or convicted and sentence 
 passed. I think that was much to be lamented. In all such cases, 
 where two persons are joined in the same indictment, and it is 
 thought desirable to separate them in their trials in order that the 
 evidence of the one may be taken against the other, in order to in- 
 sure the greatest possible amount of truthfulness on the part of the 
 person who is giving evidence under such remarkable circumstances, 
 I think it would be far better that a verdict of not guilty should be 
 taken first, or if the plea of not guilty be withdrawn, and a plea of 
 guilty received, that sentence should be passed, in order that the 
 mind of the witness may be free from all corrupt influences Avhich 
 the fear of impending punishment and the desire to obtain immu- 
 nity at the expense of the prisoner might be otherwise liable to 
 produce, [p) 
 
 It being established that an accomplice is a competent witness, 
 the consequence is inevitable, that if credit be given to his 
 evidence, it requires no confirmation from another witness, {q) 
 And therefore, in strictness, if the jury believe the evidence of an 
 accomplice, they may legally convict a prisoner upon it, though 
 it stands totally uncorroborated, {r) But from a consideration 
 of the situation of an accomplice, this doctrine has been greatly 
 modified in practice ; and it has long been considered as a general 
 rule of practice that the testimony of an accomplice ought to 
 receive confirmation, and that, unless it be corroborated in some 
 material part by unimpeachable evidence, the presiding judge 
 ought to advise the jury to acquit the prisoner, (.s) It has been 
 laid down that this practice of requiring some confirmation of an 
 accomplice's evidence must be considered in strictness as resting 
 only upon the discretion of the judge, {t) And this, indeeil, 
 appears to be the only mode in which it can bo made reconcileable 
 with the doctrine already stated, that a legal conviction may take 
 place upon the unsupported evidence of an accomplice. But it 
 may be observed that the practice in question ha.s obtained .so 
 much sanction from legal authority, tliat it 'ilcserves all the 
 reverence of law,'(;'.) and a deviation from it in any particular 
 
 G03 
 
 Accomplic3's 
 evidence alono 
 .sufficient in 
 point of law, 
 but in prac- 
 tice corrobor- 
 ation \i always 
 deemed essen- 
 tial. 
 
 ((;) Kes. i'. Owen, 9 0. & I\ 83. At 
 the coin.lu.sion of tlu' opening', the ]ui- 
 soucr was asked wlirtlifi- he would {^ivo 
 evidence, auil refused, and the ca.so pro- 
 ceeded agaiu.st all the prisoners. See 2 
 Hawk. P. C. c. 46, s. <>;'». 
 
 {p) Winsor v. The Queen, 35 L. J. JI. C 
 121. 
 
 (q) By liord Ellcnboiough in l?e.\ v. 
 Jones, 'iCainjA). 133. Kc.\ r. Hastings, 
 7 C. & P. 152, Lord Dennian, C. J., 
 Parke, J., and Alderson, B. 
 
 (r) Rex V. Atwood, 1 Leach, 4Ci, also 
 cited by Grose, J., in Jordaiue v. Lash- 
 
 Inooke, 7 T. 1!. <;<V.). Hex v. Durliani, 
 1 I.eaeh, MS. Keg. v. .\ndrows, 1 L'ox, 
 ('. C. 183. K.g. r. Averv. 1 (.".>.\, T. C 
 20(5. Hog. )'. 8tul)l)s, Dears. C. (,". .5.')5. 
 
 (,-.) 1 Phill. Kv. 31. Smith and Davis.s 
 ease, 1 Leaeh, 47'.', in note (it\ to I)ur- 
 ham's case. See jier Lord Abinger, (". H., 
 in I{eg. I'. Karler, jx^xt, j). tJOfi, and Kog. 
 c. Pnnne, .^i Cox, C. C. 507. 
 
 (n 1 I'hill. Ev. 32. Hy Lonl Kllcn- 
 Imrough, Itex v. .lone.s 2 Cainpb. 132. 
 ]{ex V. Unrhani, sit/mi. 
 
 {!>) Per Lonl Abinger, C. B., in Keg. 
 V. Farler, paf, p. (j05.
 
 (304 Of Evidence. [book vr. 
 
 case would 1)1' justly considered of (picstionable propriety. ('') 
 Tills coiilinnation iie(.'d not (•xtciid to every part of" tlie accom- 
 plice's evidence, for linic wDuld 1)0 no occasi(jn to use liini at all 
 as a witness, if liis nan;iti\i' <<>iild be completely proved by oilier 
 evidence, free from susi)ici(tn. i)ut the ([iiestion is, whether he is to 
 be l)eliev('d upon points which the confirmation docs not reach. 
 And if the jury lind some part of his evidence satisfactorily corro- 
 borated, this is a i^ood ground for them to believe him in other 
 parts as to which there is no confirmation, {v)) So far all the 
 authorities agree ; the only point on which any difference of 
 opinion has been supposed to exist, relates to the particular part 
 or parts of the accomplice's testimony wdiich ought to be con- 
 firmed, (x) 
 AVhcic there is It is well established l)y the current of recent authorities, that it 
 one prisoner is not sufficient to C()rrol)orate an accomplice as to the facts of the 
 there must be ^^^^^ ocncrally, but that he must l)c corroborated as to some 
 as to him, and material fact or facts which go to prove that the prisoner was con- 
 wherc there nectcd with the crime charged. And where several prisoners are 
 are several, as j^,j,j^]y indicted, and thc accomplice is corroborated as to some of 
 ° '^'^''"' them, although thc jury may give credit to him as to tho.se to whom 
 
 the corroboration applies, tliey ought to be directed to pay no at- 
 tention to the evidence of the accomplice as to those against whom 
 there is no corroboration. (>/) _ 
 
 Upon an indictment for breaking into a warehouse and .stealing 
 a quantity of cheese, an accomplice proved that the thieves took a 
 ladder from certain premises, and it was proved by a witness that 
 thc ladder was so taken away, and it was proposed to call other 
 Avitnesses to confirm the accomplice as to the mode in Avhicli thc 
 felony was committed. William.s, J., ' You must show something 
 that goes to bring home the matter to the prisoners. Proving by 
 other witnesses that the robbery was committed in the way 
 described by the accomplice, is not such confirmation as will entitle 
 his evidence to credit, so as to affect other persons. Indeed, I think 
 it is really no confirmation at all, as every one will give credit to a 
 man who avows himself a principal felon, for, at least, knowing how 
 the felony was committed. It has been always my opinion that 
 confirmation of this kind is of no use whatever.' (-) So where the 
 prisoner was indicted for stealing a lamb, and an accomplice proved 
 that he assisted thc prisoner in stealing the lamb, but thc only 
 evidence to confirm his statement was that of a witness, who found 
 thc skin of the lamb in the field where the lamb had been kept ; 
 it was held that the confirmation was insufficient ; and upon its 
 being submitted that there was- evidence to go to the jury, and 
 Rex V. Hasfhu/s {(i) being cited as showing that the confirmation 
 of the accomplice need not be as to the party accused ; Gurnc}-, B., 
 said, ' Altho'igh in some instances it has been so held, you will find 
 that in the majority of recent cases it is laid dovrn that thc confir- 
 mation shouhl be as to some matter which goes to connect the pri- 
 
 [v) 1 riiill. Ev. ^-2. Grociil. Kv. l^f?. York in 1S14, citt.1 1 Phill. Kv. ?,:,. 1 
 
 iic) 1 I'hill. Kv. 34. '1 Shirk. Ev. 11. I'hill. Ev. 37, Sth cd. Kex v. Hastings, 
 
 {,.) 1 I'hill. Ev. 34. 7 (-•• .^ V. 152. 
 
 ()/) See ca.ses to the contrary, l!ox i: (:) I'cx r. AVebb, 6 C. & T. 505. Thc 
 
 Dawbcr, 3 Stark. N. \\ C. 34. "J (.'aniiib. ]ni.sout'rs were acquitted. 
 
 133. So in Hirkctt's case, l\. & K. "Jol. (n) Siqtra. 
 Keg. r. Swallow, report of thc trials at
 
 CHAP. V. § vi.j Of Accomplices. 
 
 soner with the charge. I think that it would be liighly dangerous to 
 convict any person of such a crime on the evidence of an accom- 
 pHce, unconfirmed with respect to the party accused.' (b) 
 
 The corroboration must not only connect the prisoner and the 
 accomplice together, but must be such as to show that the prisoner 
 was engaged in the transaction which foiMus the subject-matter of 
 the charge under investigation, (d) 
 
 In E. V. Wilkes, 7 C. & P. 272, Aldcrson, B., .said in summing 
 up, ' The confirmation of the accomplice as to the commission of the 
 felony is really no confirmation at all, because it would be a confir- 
 mation as much if the accusation were again.st you and me a-s it 
 would be as to those prisoners who arc now upon their trial. The 
 confirmation, which I always advise juries to require, is a confir- 
 mation of some fact which (joes tofuc the guilt upon the particidav 
 person charged. You may legally convict on the evidence of an 
 accomplice only, if you can safely rely upon his testimony ; but I 
 advise juries never to act on the evidence of an accomplice unless 
 he is confirmed as to the particular prisoner who is charged v.ith 
 the offence. 
 
 Upon an indictment for receiving a sheep knowing it to have 
 been stolen, an accomplice proved that a brother of tTie j^risoner 
 and himself had stolen two sheep, one a large, the other a small 
 one, and that the brother gave one of them to the jDrisouer, Avho 
 carried it into the house in which the prisoner and his father lived, 
 and the accomplice stated where the skins were hid ; on t!ie houses 
 of the prisoner's father and^the accomplice being searched, a quan- 
 tity of mutton was found in each, which had formed parts of two 
 sheep corfesponding in size with those stolen ; and the skins were 
 found in the place named by the accomplice. Patte.son, J., ' If the 
 confirmation had merely gone to the extent of confirming the ac- 
 complice as to matters connected with himself only, it would not 
 have been sufficient. For example, the finding the .skins at the 
 place at which the accomplice said they were would liave been no 
 confirmation of the evidence against the prisoner, because the ac- 
 complice might have put the skins there himself. J^ut here wo 
 have a great deal more; we have a quantity of mutton found in 
 the house in which the prisoner resides, and that I think is such a 
 confirmation of the accomj)lice's evidence as I must leave to tlio 
 
 ^Vhere the principal witness against two prisoners was an ac- 
 complice who was supported by other evidence in his statement 
 
 605 
 
 Tlie corroljor- 
 ation ought 
 to affect the 
 identity of the 
 party accused, 
 and connect 
 liim with the 
 crime charged. 
 
 Finding mut- 
 ton in the " 
 jtrisoncr's 
 house corre- 
 .sponding in 
 size with that 
 which w;uj 
 lost. 
 
 Corrol>o ra- 
 tion as to DUO 
 priHonor is iu- 
 
 {h) Reg. V. Dyke, 8 C. k V. 21)1. 
 
 {(l) llcg. V. Farler, MSS. V. S. G. S 
 C. & r. lOG, it per Al)iiiger, ('. 1'.., 
 'Now, ill my opinion, corrohoratiou 
 ought to consist in sonu' cin'nnistani'c 
 that allects tlie identity of the party 
 accused. A man wlio lias liccn guilty of 
 a crime himself will always \n'. ahh^ to re- 
 late the facts of the case, and if the con- 
 firmation he only of the truth of that 
 liistory, without identifying the ihtsous, 
 that is really no corroboration at all. If 
 a man were to break open a house, and 
 put a knife to j'our throat, and steal your 
 property, it would be no corroboratimi 
 that ho" had stated all the facts correctly ; 
 
 that hr had described how the person 
 did put the knife to tlie throat, and diil 
 steal the property ; it would not nt all 
 tend to siiow that the i>arty nccuscil 
 ])articipated in it.' See IJe.x r. Addis, (] 
 ('. & 1'. 3.S8. Kel.sey's en.s*>, 2 Lew, -jr., 
 rattesou, .1. 
 
 (<•) IJeg. r. IHrkett, 8 (". & P. 73:. 
 The prisoner was acfputted. .\ssinning 
 that the eontirniation in thi.s cn.sc sh<iwe<i 
 tlu" pri.soner to have been loiinecti'd with 
 the transjietion, the f.iet of liis beinj^ 
 the receiver ami not the jirincipnl .venis 
 to have been wholly uncorroborated. 
 V. S. (.:.
 
 GOG 
 
 Hunicioiit 
 n){airiNt nii- 
 otlicr. 
 
 Of Kriiliiutt. 
 
 [book VI. 
 
 Tlio ])roi)er 
 coui"8c vlicro 
 tlicrc is only 
 one prisoner 
 13 to advise the 
 jury not to 
 convict him 
 unless tlic 
 evidence of the 
 U'Coniplicc 1)0 
 confirmed, not 
 merely as to 
 the circum- 
 stances of the 
 oiTence, but 
 also as to the 
 participation 
 of the prisoner 
 in it ; and 
 where there 
 are several 
 prisoners, tlie 
 proper course 
 is to advise 
 the jury not 
 to convict any 
 one, with re- 
 spect to whom 
 there is no 
 such corro- 
 boration, al- 
 though tiiere 
 may be such 
 corroboration 
 as to the 
 others. 
 
 ;iL;;iiii.s( oin- of tin; |iiIsoiicis, l)iit not against tlio otlior ; Aldorson, 
 li, told tlic jiu-y that ' wliuro tliero is one witness of had diaiactcr 
 <'-iviii<'' (vick'nce against Ijotli prisoners, a confiiniation of his tes- 
 timony with ri'gard to one is no confirmation of his testimony as to 
 the other. If, therefore, you find there is a corroboration appli- 
 cable to one prisoner, take it as against him; but unless it exists 
 with regard to both, it seems to me that it would be unjust to give 
 it a general effect.' (_/') 
 
 Wliere Stubbs, Wardlc, and Wraithman were indicted Ajr 
 larceny of copper, and three accomplices were examined, but their 
 evidence Av.as not corroborated as to Stubbs, but only as to the 
 other i")visouers, it was urged on belialf of Stubljs that the jury 
 ought to be directed that the evidence of the accomi:)lices ouglit to 
 have been corroborated as to Stubbs ; but tlie cliairman directed the 
 jury that it was not necessary that the accomplices siiould be cor- 
 roborated as to each individual prisoner ; that tlieir being con-obo- 
 rated as to material facts tending to show that the other prisoners 
 were connected with the larceny Avas sufficient as to the whole 
 case, but that the jury should look -with more .suspicion at the 
 evidence in Stubbs' case, where there was no corroboration, but 
 that it was a question for the jury ; and upon a case reserved upon 
 the question whether this direction was right, Jervis, C. J., said, 
 ' We cannot interfere in this case, although we may regret the re- 
 sult that has been arrived at. It is not a rule of law that an ac- 
 complice must be confirmed in order to render a conviction valid, 
 and it is the duty of the judge to tell the jury that they may, if they 
 please, act on the unconfirmed testimony of an accomplice. It is 
 a rule of practice, and that only, and it is usual in practice for the 
 judge to advise the jury not to convict on the testimony of an ac- 
 complice alone, and juries generally attend to the direction of the 
 judge, and require confirmation. There is a further point in this 
 case. Where an accomplice speaks as to the guilt of three pri- 
 soners, and is confirmed as to tw^o of them only, the jury may no 
 doubt, if they please, act on the evidence of the accomplice alone 
 as to the third prisoner ; but it is jjroper for the judge in such case 
 to advise the jiuy that it is safer to require confirmation as to the 
 third prisoner, and not to act on the accomplice's evidence alone ; 
 for nothing is so easy as for the accomplice, speaking trul)'- as to 
 all the other facts of the case, to put the third man in his own 
 place ; but a jury may, if they choo.se, act on the unconfirmed tes- 
 timony of an accomplice ; in this case they have acted on the evi- 
 dence before them, and we cannot interfere.' Parke, B., 'Diu'iug 
 the time I have been on the bench, now more than a (piarter of a 
 century, I have uniformly laid down the rule of practice as it has 
 been stated by the Lord Chief Justice. I have told the jury that 
 it Avas competent for them to find a prisoner guilty upon the un- 
 supported testimony of an accomplice, but that great caution 
 should be exercised, and I have advised them, and juries have acted 
 on that advice, not to find a prisoner guilty on such testimony 
 unless it was confirmed. There has been a difierence of opinion as 
 to what corroboration is requisite, but my practice has always been 
 to direct the jury not to convict unless the evidence of the acconi- 
 
 (/) Keg. V. Jenkins, 1 Cox, C. C. 177. K. v. Wilkes, 7 C. & P. 272.
 
 bribed. 
 
 CHAP. V. § VI.] Of Accomplices. GO 7 
 
 plice be confirmed, not only as to the circumstances of the crime, 
 but also as to the identity of the prisoner. An accomplice neces- 
 sarily knows all the facts of the case, and his story, when the ques- 
 tion of identity is raised, does not receive any support from its 
 consistency with these facts. The chairman in this ca.se has de- 
 parted from the usual jDractice, but the jury having acted upon the 
 evidence, the secretary of state can only interfere.' Cresswell, J., 
 ' I agree in the view of the question taken by my brother Parke, 
 and have always acted upon it. You may take it for granted that 
 the accomplice was present when the offence was committed, and 
 there may therefore be no difficulty in corroborating him as to the 
 facts, but that has no tendency to sliow that any particular person 
 who may be accused was there.' (ry) 
 
 Where on an information for briljory whiih contained eight C^^n-oboration 
 
 counts, each charging a distinct act of bribinn' ditferent voters, it l!!.:'vji^i 
 
 ' o& .o. ' bribery by se- 
 
 appeared that the witnesses went succes.sively mto a house, and veral persons 
 into a back room, in whicli the defendant was seated, and after an feparately 
 interview with the defendant each of them passed into another 
 room in which another person was seated, from whom each re- 
 ceived the several sums mentioned in the several counts of the 
 information, and then passed into the street and to the hustings and 
 voted ; it was objected that there was no corroborative evidence of 
 each of the witnesses, and that the jury ought to be directed not 
 to act upon the evidence of each of the witnesses, but to acquit the 
 defendant. Martin, B., however, left the case to the jury as follows : 
 ' Assume, for the purposes of the present discussion, that this man 
 was speaking the truth. Is there any laiu which prohibits a jury 
 from believing a man who (it must be assumed for the sake of argu- 
 ment) spoke the truth, simply because he is not corroborated ? I 
 know of none. I know of no •rule of law myself, but tliere is a rule 
 of practice which has become so hallowed as to be deserving of 
 respect ; I believe these are the very words of Lord Abingt-r — it 
 deserves to have all the reverence of the law. (/<) This case is 
 distinguisliable from Ee[/. v. Stuhhs, for they were there accessories 
 properly so called, and all the persons were concerned in the same 
 offence in which they came to give evidence ; in this particular 
 case it is not so, because all of these cases are separately gone inti», 
 and it is not one and the same offence ; and if you think tiiat all 
 these witnesses have spoken the truth, then it is clear that each 
 case is separate ; each per.son giving money is a distinct offence. 
 I own I think also that this is a very important ])oint, and that it 
 may be very doubtful whether or not the evidence in this ca.su will 
 be found to Ijo of that corroborative character which the law re- 
 quire.?.' (i) The jury found a verdict of guilty on one count only ; 
 and on a motion for a new trial, the court held that the direction to 
 the jury was right, even supposing the witnesses could bo consi- 
 dered as accomplices of the defendant. The law on tiiis subject 
 Avas correctly laid down in Rrj. v. Slubh'^. It is not a rule of law 
 that an accomplice must be corroborated in order to render a con- 
 viction valid, but it is a rule of general and usual practice to advise 
 juries not to convict on the evidence of an accomplice alone. The 
 
 ((/) Reg. V. Stubbs, Dears. C. C. 555. the i-oport in 5 Uw T. ll. 147, wh.Tc it 
 
 (h) Sec Keg. v. Farler, anlv, p. C05. is mvith better givou than in the ni>ort 
 
 (0 This sunnniug up is taken lYoni in 1 1'.. & S. 311.
 
 G08 
 
 f>f Evidence. 
 
 [book VI. 
 
 of llie n.iturc 
 of tlio con- 
 firiiiatiou. 
 
 Confinnation 
 by llie wife of 
 an accomplice. 
 
 Confirmation 
 ail to principal, 
 but none as to 
 tlie receiver. 
 
 Confirmation 
 as to receivers, 
 but none as to 
 principal. 
 
 .iiiplicatioi) of tliai nik', however, is matter furtlie discretion of tlic 
 nidoe liy whom the case is triecK Moreover, in this case the court 
 thou'dit there was cornthorativc evidence. It was not neces.sary 
 tliat there should be corroborative evidence as to the very fact ; it 
 is cnnu<di if there be such as to confirm the jmy in tiic belief that 
 the accomplice is speaking the truth, f j) 
 
 Where it was strongly contended that two accomplices had not 
 been corrol)orated ; Maule, J., said, * Confirmation does not mean 
 that there should be independent evidence uf that wliich the 
 accomplice relates, or his testimony would be unnecessary. If, for 
 instance, a burglary had been committed, and an accomplice gave 
 evidence that a person charged was present wdien it was effected ; 
 if that person had been seen hovering about the premises some 
 time before, or was .seen in possession of some of the stolen propei-ty 
 shortly after, that might 1)C rcasonalilc confirmation of tlie .state- 
 ment that the prisoner helped to commit the crime.' (/.) 
 
 Upon an indictment for stealing a sheet it appeared that tlie 
 sheet was found in the house of the accomplice, who gave evidence 
 to prove that the prisoners stole the sheet, and the wife of the 
 accomplice Avas the only person to confirm the accomplice's .state- 
 ment ■ Park, J. A. J., 'Confirmation by the wife is, in a case like 
 this, really no confirmation at all. The wife and the accomplice 
 must be taken as one for this purpo.se. The prisoners must be 
 acquitted.' (?) 
 
 Where a principal and receiver are jointly indicted, and an 
 accomplice is confirmed as against the principal, but not as against 
 the receiver, this is not sufficient to support the ca.se against the 
 receiver.' (?/*) 
 
 One prisoner was indicted for stealing, and two other prisoners 
 for receivino-, several pairs of shoes, knowing them to have been 
 stolen, and the only Avitness to prove the felony was an accom- 
 plice, and she also proved the case against the receivers ; she was 
 confirmed as to the latter, but there Avas no confirmation whatever 
 as to her testimony against the principal ; it was objected that even 
 as to the receivers the confirmation was not sufficient in itself ; but 
 if it was, it would still be necessary to confirm the witness as 
 ao-ainst the principal ; for if the case failed against her, the 
 receivers would be entitled to an acquittal. Littledale, J., ' The 
 confirmation as to the receivers is slight ; but as there is no con- 
 
 ( j) lleg. V. Boycs, 1 B. & S. 311. As 
 to the distinction taken between llof,'. v. 
 Stubbs and this case, it seems to make no 
 diH'erence. If a man is charged with se- 
 veral ofVeuces in the same indictment, the 
 evidence to prove each ou^dit to be the 
 same as if each were the suVijcct of a se- 
 parate indictment. In this case each act 
 of bribery appears to have been proved 
 l>y the jiarty bribed alone; there, there- 
 fore, was no eonoboration at all as to 
 any one act of bribery. Suppose a ser- 
 vant were indicted for three larcenies 
 from his master within six months, and 
 three receivers gave evidence against 
 liim, but they were the only witnesses, it 
 SI cms clear the case ought wholly to fail 
 for want of anv corroboration. See lleg. 
 
 V. Tratt, 4F. &F. 315. C. S. 0. 
 
 \k) Eeg. V. Mullins, 3 fox, C. C. 526. 
 "Wightman, J., was present. 
 
 ('/) Rex r. Neal, 7 C. & P. ICS. ilr. 
 riiillipps, vol. 1, p. 33, observes, that in 
 this case ' the circumstances of the case 
 might liave V)een such as to warrant this 
 decision. But it may often happen that 
 the evidence of the wife is so free from 
 all suspicion, so independent of the evi- 
 dence of the husband, so manifestly 
 unconcerted and uncontrived, and so un- 
 designedly corroborative of his e\"idence, 
 that it might be proper not to consider 
 the accomplice and his wife as one, but 
 to act upou her evidence as sufficient 
 confirmation.' 
 
 ^//i) Kex x\ Moores, 7 C. & V. 270.
 
 CHAP. V. § VI.] 
 
 Of Accomplices. 
 
 G09 
 
 firmation against tlie principal felon, I think the case fails alto- 
 gether ; there ought to be confirmation on that point before the 
 jury can be asked to believe the witness's testimony.' (ii) 
 
 So where on an indictment against a prisoner for 'receiving 
 stolen oats, a quantity of oats were found on the prisoner's pre- 
 mises, which the prosecutor believed to be his, but could not posi- 
 tively identify them, as they w^ere mixed with peas, and the only 
 other evidence was that of the thief, who had pleaded guilty ; 
 Pollock, C. B., advised the jury to acquit the prisoner, it being 
 perilous to convict a person as receiver on the sole evidence of the 
 thief This would put it in the power of a thief, frum malice 
 or revenge, to lay a crime on any one against whom he had a 
 grudge. And here there was no adequate confirmation of the 
 thief's evidence, (o) 
 
 The practice of requiring confirmation where the case for the 
 prosecution is supported by one accomplice, applies equally 
 when two or more accomplices are brought forward against a 
 prisoner. (2?) 
 
 A married woman who consents to her Imsband committing an 
 unnatural offence with her is an accomplice in the felony, and as 
 such her evidence requires confirmation. (5) And the .same woidd 
 be the case if the party with whom the offence was committed was 
 a male, and consented, (r) 
 
 Although all per.sons wdio are present aiding and assisting at a 
 prize fight are in point of law principals in the second degree in 
 manslaughter if death ensues, yet they have been holden not to be 
 such accomplices as to require any evidence to confirm their testi- 
 mony, (.s) 
 
 Where upon an indictment against two prisoners for mali- 
 ciously shooting, and against a third as an accessory after the fact, 
 a person pi^oved that he had been employed by the accessory to 
 remove the principals out of the way, and for this he had received 
 money, and had hidden the principals in an outhouse, and there 
 was no corroboration by any other witness as to these facts ; and 
 it was contended that as the witness was an accomplice he ought 
 to be corroborated; Gurney, B., observetl, in summing \\\\ that 
 ' with regard to the necessity of confirming an accomplice mudi 
 might depend upon the nature of the crime in (question : it was for 
 the jury to consider whether there was anything in the witnes.s's 
 conduct to warrant their disbelieving him.' (/) 
 
 The thief a 
 witness 
 against the 
 receiver. 
 
 Where there 
 are several 
 UL-coinplices 
 
 Unn.atural 
 offence. 
 
 Cases where 
 contiriuutioa 
 is not re- 
 quireil. 
 
 (h) Kex V. Wells, M. & M. 326. All 
 the prisoners wore acquitted. It is nut 
 stated what the IVirni of the indictment 
 was, hut it is conceived it must iiavc 
 alleged the receipt to be of the shoes ' so 
 stolen as aforesaid,' so that iin acijuittal 
 of the principal necessarily caused an 
 acquittal of the re(,'eivcrs. See Kex v. 
 AVoolford, 1 M. & Koh. 3St, vol. -1, 
 p. 484. If there had been counts charg- 
 ing the receivers with a sulistantiv<' 
 felony, there seems no reason why the 
 receivers might not have ]>een convicted, 
 though the ]irincipal was ac<piittcd. Sec 
 vol. 2, p. 487, and Kex r. Field, post, 
 p. 610. C. S. G, 
 
 (0) Reg. r. llobiuson, 4 F. k F. 43. 
 VOL. III. 
 
 K. V. I'ratt, 4 F. & F. 31.'.. 
 
 (y/) 1 I'hill. Kv. 3:5. Keg. v. .^luhl.s. 
 Dears. C. ('. fi.').'), aiiU-, p. Cli". Hex r. 
 Noakes, r, V. k r. 32{J, cor. Littiedal.., 
 ■)., Holhind, H., an.l Aiderson. .1. 
 
 (</) Keg. V. .lellynian, S ('. &. 1". 004. 
 
 (/■) I'lT I'atteson, .1., ihid. 
 
 (s) Hex V. Uargrave, f» C. k V. 170, 
 I'atteson, J. H. V. Young, 10 Cox, ('. (". 
 .■!71, a case of a sparring malt li, whidi 
 ihanuvell, li. , thought was not illegal. 
 
 (0 Hex r .larvis, 2 .M. .V Holi. 4«i. In 
 Hex V. Durham, 1 l,ruch, 478, wlure a 
 receiver wa^ admitted us a witness again.>«t 
 some burglars, and was uncorroborated, 
 the court observed that the receiver wa.s 
 to be considered rather as nn accessory 
 
 R K
 
 (') I ( ) 
 
 Where llio 
 ll(-i:)ilii|>lie(> li;is 
 
 llCUIl HIIMI- 
 
 lillU'ily Coll- 
 vi.'teil. 
 
 A spy. 
 
 Of I'Jridence. 
 
 [book VI. 
 
 In cases of 
 luisdeme.anor. 
 
 Whether con- 
 firmation suffi- 
 cient, for 
 jury. 
 
 The jury may 
 convict sonic 
 anil acquit 
 others uj^ion 
 the evidence 
 of the same 
 accomplice. 
 
 Accomplice 
 evidence for 
 prisoner. 
 
 Acquittal to 
 become a 
 witness. 
 
 Tt lias 1)1^011 liuldtMi that tluj fact of a party having; ])00ii sum- 
 marily coiivicloil for poaching in the night under the f) Goo. 4, 
 c. (II), s. I, docs not dispense with the necessity of producing confir- 
 matory evidence of his tcstiinony when produced as a witness 
 against his companion.s upon an indictment, under the Oth section 
 of the same statute, foun(k'(l upon the same transaction. (/() 
 
 When; on an indictment against certain (Jhartists under tlie 
 II it 12 Vict. c. 12, two witnesses admitted that they joined the 
 conspirators .simply for the purpose of betraying them, and each 
 did so without the knowledge of the other, but both had been 
 .as active as any of the conspirators, endeavouring to persuade 
 strangers to join them, and urging those who were members to 
 deeds of violence : it was held that there was no rule of law which 
 declared that their evidence required confirmation, nor any 
 rule of practice which said that juries ought not to believe them. 
 A spy may be an honest man ; he may think that the course he 
 pursues is absolutely essential for the protection of his own in- 
 terests and those of society ; and, if he does .?o, if he believes that 
 there is no other method of counteractinfj the dancrerous designs 
 of wicked men, there is no impropriety in his taking upon himself 
 the character of informer. The government are justified in era- 
 ploying spies, and a person so employed docs not deserve to be 
 blamed if he instigates offences no further than by pretending to 
 concur with the perpetrators. Under such circumstances they are 
 entirely distinguished in fact and in principle from accomplices, (v) 
 
 The case of Meg. v. Farler (vj) is an authority that the practice 
 requiring confirmation of an accomplice extends to misdemeanors. 
 
 Whether the evidence brought forward to confirm the accom- 
 plice is a satisfactory and sufficient confirmation is a question which 
 the jury are to determine, (x) 
 
 In a case of great importance where an accomplice swearing 
 positively to several prisoners was confirmed as to some and not 
 confirmed as to others ; Vaughan, B., recommended the jury to 
 acquit the latter, and they were accordingly acquitted, while those 
 as to whom the accomplice was confirmed were convicted and 
 executed, {y) 
 
 An accomplice is a competent witness for his associates as well 
 as against them, even when they are severally indicted for the 
 same offence, whether he is convicted or not. (s) Where there is 
 not any or very slight evidence against one of several prisoners 
 indicted and tried together, the court will sometimes direct the jury 
 to give their verdict a.'5 to him, and upon their acquittal of him admit 
 
 after the fact than as an accomplice in 
 the facts ; but this distinction seems 
 never to liavc been acted upon in any case, 
 and the case in which it was taken was 
 decided on the authority of Hex v. At- 
 wood, anti; p. 603, on the ground that 
 the circumstance of his being an aocom- 
 plieo went to Ids credit only, and that 
 his evidence miglit be left to the jury, 
 although it was entirely uncorroborateil. 
 See Hcg. v. Robinson, ante, p. 609, note(o). 
 
 (ii) Keg. V. Farler, 8 C. & P. 106, ank, 
 p. 605. 
 
 ((•) Keg. r. Miillins, 3 Cox, C. C. 526. 
 
 !Manle, J., and "Wiglitraan, J. 
 
 (ir) Si<jyra, note (ii). And see Reg. r. 
 Boyes, 1 B. & S. 311. Ai>fc,i\ 60S. But 
 see per Gibbs, Attoniey-General, in Rex 
 V. Jones, 31 How. St. Tr. 315. 
 
 (.r) 1 Phill. Ev. 3S. 
 
 (//) Rex {-. Field, Dick. Q. S. 520. See 
 l>er Alderson, B., in Rex v. Wilkes, 7 
 0. & P. 272. 
 
 (z) 2 Stark. Ev. 13. 2 Hale, P. C. 280, 
 citing the case of Bilmore, Gray, and 
 Harbin, 2 Roll. Abr. 685, pi. 3.' Bath 
 and Jlontaguc's case, cited in Lock r. 
 Havton, Fortesc. 246.
 
 CHAP. V. § VII.] Competencu of Witnesses. Gil 
 
 his testimony for the others, (a) In a case where one of the defend- 
 ants on an indictment for an assault submitted and was fined, and 
 paid the fine ; Pratt, C. J., allowed him to be a witne.ss for the 
 other, considering the trial at an end with respect to him. (6) 
 Where one of two prisoners charged with housebreaking pleaded 
 guilty ; Coltman, J., held that this prisoner miglit be called as a 
 witness by the other prisoner to prove that he was not present at 
 the committing of the offence ; (c) and in another case Erie, J., 
 allowed a prisoner who pleaded guilty to an indictment for uttering 
 a forged note, and against whom a previous conviction was proved, 
 to be called as a witness for another prisoner ; but he was previou.sly 
 sentenced, which Erie, J., considered to be the proper course, {d) 
 
 Sec. VII. 
 ^Vllat Witnesses arc Competent. 
 
 By the competency of a witness is meant his admissibility to give Of the compc- 
 evidence ; if he is incompetent (of whicli the court is to judge) {e) tencyof 
 he is to be totally excluded from giving his testimony ; if he is *'*^"'^^"^^- 
 competent, it will then be for the jury to decide whether his evi- 
 dence, when given, is entitled to credit. 
 
 All persons are admissible Avitnesses Avho have the use of their 
 reason, and such religious belief as to feel the obligation of an 
 oath, and who are not disqualified in the manner hereafter men- 
 tioned. (/) The causes of incompetency, therefore, to be considered 
 are — 1. Defect of understanding. i2. Defect of religious belief. 
 3. Disqualification and therewith of the incompetency of husband 
 and wife, 
 
 1. Persons incompetent from want of understanding. Idiots (7) ^Vant of un- 
 are not admissible to give evidence. By the word ' idiot ' is meant <lersuimling. 
 a fool or madman from his nativity, who never has any lucid inter- Idiou 
 vals. (/i) A person deaf and dumb from his nativity (tliough in Deafan.l 
 presumption of law an idiot), (i) if he is capable of conversing by '•"">'^- 
 signs, and has a proper sense of the obligation of an oath, may be 
 admitted as a witness and examined with the assistance of an in- 
 terpreter, {j) But however intelligent and capable of communicat- 
 ing and receiving information by signs he may be, he cannot 1k' 
 admitted as a witness if it does not appear that he clearly uikKm-- 
 stands the nature of an oath, {h) So lunatics are incompetent ; 
 that is, persons usually mad, but if they have intervals of reason (/) 
 they arc competent during those times, {m) And in such ca.scs it 
 is for the judge to determine wliether the insane person h;xs tlie 
 sense of religion in his inind, and wliether lie undei-stands tlio 
 
 (a) 2 Hawk. \\ C. c. 1(3, s. US. \\v\r. ( /) Tcr Lawiviu-c, .1., in .lor.laino r. 
 
 Bcdder, 1 Sid. 237. 2 Stark. Ev. 13. Laslibrookc, 7 T. K. 6I0. 
 
 (/;) Kcx r. FlftcluT, 1 Str. 633. IJcx (.7) <'oni. Di^'. Testni(.i«ii, A. 1. 
 
 r. Sliennan, Cas. temp. Ilaidw. 303. 1 (/() Soo vol. 1, i>. 113, 
 
 riiill. V.v. 68. (/) 1 1 'id. 
 
 (t) Re^. r. G.orf,'.', ('. & M. 111. Sec (j) Itnston'.s cnsr, 1 I/carli, (,'. V. 408. 
 
 Ilex V. Lafoiio. and otliers, f) Ksp. N. 1'. C. (A) IJcg. v. O'lliieii. 1 C.x, C. ('. ISf., 
 
 155. 1 Phill. Ev. 63. Jackson, J. 
 
 (d) Keg. V. Jackson, 6 ("ox, (". C. (/) Vol. 1, ]•. 111. 
 
 525. See;)os/, p. 620. ' {/") Com. Dig. Tostnioign, A. 1. 
 
 (c) 2 Hale, P. C. 277. 
 
 11 i: 2
 
 Gl'2 Of Evidence. [book vi. 
 
 nntnro and tlio snnrtif»ii of an nalli.and then the; jury arc to dcoido 
 on tlic crcdihilit.y and tlio \vfi^lil of Ids ovidt-ncu. (/«) 
 Children. Witli rospect to cliildrt'M, tlu; rule now sconi.s to Ijc tliat their 
 
 competency does not depend on thcnr a;;c, but that a child of any 
 age may be examined, if capable of distinguishing between good 
 and evil ; (o) butwliatever be its age, it cannot Ije examined with- 
 out Ijeing sworn, (jt) Whether tlie infant be compc.-tent or not is a 
 ((uestion for the discri'tion of the court. (7) Before a cliild is ex- 
 .'imined the judge must be satisfied that the child feels the binding 
 obligation of an oath from the general course of its religious educa- 
 tion. The effect of the oath upon the con.science of the child 
 should arise from religious feelings of a permanent nature, and not 
 merely from instructions, confined to the nature of an oath, recently 
 communicated to it for the puri)0ses of a trial. Where, therefore, 
 on an indictment for murder it appeared that, previous to the hap- 
 pening of the circumstances, to which a child came to speak, she 
 liad had no religious education whatever, and had never heard of a 
 future state, and she had been twice visited by a clergyman who 
 liad given her some instruction as to the nature and obligation of 
 an oath, but she had no intelligence as to religion or a future state 
 at the time of trial ; her testimony was rejected. (/•) There is no 
 difference in respect of the competency of children between capital 
 cases and misdemeanors, {rr) 
 Postponing tlio Where the child has appeared not sufficiently to under-stand the 
 trial in order nature and obligation of an oath, judges have often thought it 
 may be^in-' necessary for the purposes of justice to put off the trial of a prisoner, 
 structcd. directing that the child in the meantime should be properly in- 
 
 structed, (.s) 
 
 Where a criminal prosecution was coming on to be tried, and the 
 learned Judge found that the principal witness was a female infant, 
 wholly incompetent to take an oath, he postponed the trial till the 
 following assizes ; and ordered the child to be instructed in the 
 meantime, by a clergyman, in the principles of her duty, and the 
 nature and obligation of an oath, (t) And at the next assizes the 
 
 (?i) Weg. V. Hill, 2 Den. C. C. 254. Patteson, J. In Ecg. v. Holmes, 2 
 
 See this case, f)Ost, p. 629. F. & F. 788, "Wightman, J., seems to 
 
 (0) By such capabilit}' must be under- have thought it sutficient to allow a child 
 
 stood a belief in C!od, or in a future state of six years old to be sworn, that to the 
 
 of rewards and punishments ; from which question, ' Is it a good or bad thing to 
 
 the court maj' be satistied that the wit- tell a lie ? ' the child answered, ' A bad 
 
 ness entertains a proper sense of the thing.' But the following ([uestions and 
 
 danger and impiety of falsehood, ibid. answers were also put and given : ' Do 
 
 See White's case, 1 Leach, 430, 431. you say your prayers ? ' 'Yes.' 'What 
 
 'It certainly is not law that a child becomes of a person who tells lies ? ' 'If 
 
 under seven cannot be examined as a he tells lies he will go to the wicked 
 
 witness. If he shows sufHcient capr.city tire ; ' and the child was then sworn, 
 
 on examination, a judge would allow him And Wightman, J., admitted a child of 
 
 to be sworn.' Per Alderson, B., lieg. r. about the same age, who answered the 
 
 Perkins, 2 iloo. C. U. K. 135. As to question, ' Is it a good or bad thing to 
 
 the rule in former times, .see R. ?•. tell a lie?' by saying it was a Ijad thing. 
 
 Travcrs, 1 Str. 700. K. v. Dunnel, 1 Anonymous in the note, ibid. 
 
 East, P. f. c. 10, s. 5, pp. 443, 444 ; (rr) Kex r. Travers, 2 Stra. 700. 
 
 1 Hale, 302 ; 2 Hale, 278. {s) 1 Phill. Ev. 5. But this must not be 
 
 ( p) Brazier's case, Reading Spring done in order that an adult may become 
 
 Ass. 1779. 1 East, P. C. c. 10, s. 5, ]>p. capable, ibid., jyost, p. 61tj. 
 
 443,444. 1 Leach, 199, S. C. Powell's (0 Anon. cor. Rooke, J., at Gloucester, 
 
 case, 1 Leach, 110. Bull. N. P. 293. Mr. J. Rooke mentioned the case on a 
 
 (</) 1 Stark. Ev. 94. trial at the Old B.ailey, in 1795; and 
 
 ^>) Rex r. Williams, 7 C. & P. 321, added, that upon a conference with the
 
 CHAP. V. § VII.] Comj^eiency of Witnesses. 613 
 
 prisoner was put upon his trial, and the infant, being found by the 
 Court on examination to have a proper sense of the nature of an 
 oath, was sworn ; and the prisoner was convicted upon her testi- 
 mony, and executed, (u) And where a bill was preferred against 
 a prisoner for carnally knowing a girl under ten years of age, and 
 the girl, being examined by Erie, J., before going before the grand 
 jury, appeared to have no notion of religious or moral duties, and 
 therefore was not sworn, and the bill was ignored in consequence ; 
 Erie, J., on the authority of the preceding case, directed the pri- 
 soner to be detained till the next assizes, and that tlie girl in the 
 meantime should be duly instructed, (v) 
 
 It is entirely in the discretion of the court whether the trial 
 should be postponed for this purpose or not : and where the want 
 of understanding the nature and obligation of an oath arose from 
 no neglect, but from the child being only six years old, and there- 
 fore being too young to have been taught ; Pollock, C. B., refused 
 to postpone the trial, as he doubted whether the loss in point of 
 memory would not more than countervail the gain in point of 
 religious education, {lu) But an application to postpone the trial 
 on this ground ought properly to be made before the child is exa- 
 mined by the grand jury, or, at all events, before the trial has 
 commenced ; for if the jury are sworn, and tlie prisoner is put upon 
 his trial before the incompetency of the witness is discovered, the 
 judge cannot discharge the jury, but should, if there is no other 
 evidence of the offence having been committed, direct an ac- 
 quittal, (x) 
 
 When the child is incompetent to be sworn, the account which 
 it has given of the transaction to others is inadmissil)le. (;/) 
 
 2. Of incompetency from defect of religious belief The rule as J^^^'^^f.^^l 
 now settled appears to be, that as tar as regards this kuul ot in- 
 competency, infidels of this and all other countries, who yet believe 
 in a God, the avenger of falsehood, are admissible as witnesses, 
 and the only persons incompetent are those who do not believe in 
 a God, the dispenser of future rewards and punishments ; (z) and 
 it should seem that it makes no difference whether the belief is 
 that such dispensation is to take place in a present or in a future 
 state of existence. ' Such infidels,' says Lord C. J. Willes, in the 
 
 otliev .Tudffcs, on liis letiun from tlio cir- tliis trial.' 
 
 cuit, they luianiiiiously apjirovoil of what (w) Kef;, r. Nicholas, 2 C & K. 24fi. 
 
 lie liad done. Sec note ((() to White's rolloek, C. 1?., observed tlmt ho eouhl 
 
 case, 1 Leach, 430 ; aud 2 15ac. Abr. 577, easily conceive that there ini;,'ht be cn.so.s 
 
 in the notes. where the intellect of tlio cliild w.is much 
 
 («) Id. ibid. more ripened, as in the eases of children 
 
 (v) Kes- ''• Biiylis, 4 Cox, C. C. 23. In of nine, ten, or twidve years old. where 
 
 Kex ('. Williams," 7 ('. ."t !'. ;?2n, wliere on their education had been so utterly neg- 
 
 a trial for murder, a child of ei^ht years h'rted that tln^y were wholly iKUonint 
 
 of a^c had berii visited twice by a clergy- on religiou.s subjects ; and in these casen 
 
 man, who had j^iveii her some instruction a i>ost[)onenicnt of the trial uu^Ul be very 
 
 as to the nature of an oath ; Tatteson, .T., jirojier. 
 
 said, 'I must Ix; satislied that this child (.r) 1 Phill. Kv. 5, citing Hex r. Wade, 
 
 feels the binding obligation of an oath past, p. 610. 
 
 from the general course of iier religious {>/) Peg. v. Nichola.s, 2/'. & K. 246. 
 
 education. The cHcct of tlie oath upon 1 I'liill. Kv. .'i. 
 
 the conscience of the child should ari.sc (:i 1 Phill. Kv. 10. As to ii |vrson 
 
 from religious feelings of a jiermancnt objected to as incoini>et<nt to t.ike nn 
 
 nature, and not merely from instructions, oath nuiking n jironiise and declnmlion, 
 
 confined to the nature of an oath, and see r.2 k 33 Vict. c. 48, 5. 4, anU, \\ 27. 
 cominunicated to her for the purposes of 
 
 jigious belief.
 
 oil Of Evidence . [book vi. 
 
 case of OmicJnind niid Barker, (<i) ' wlio either do not lK.'li(;vcafjlod, 
 or, if tlicy do, do not think th;it Jle will cither reward or pnni.sh 
 thciii ill litis 'ir( I lit I or in (Jte lutjt, cannot be witnesses in any ca.sc, 
 nor under any circumstances — for this jdain reason, because an 
 oath catniot possibly be any tie or {jl)ligation to them,' 
 
 Where a plaintiff bcin<f called as a witness was sw^orn on tiio 
 voire dire, and was <|uestioned and answered as follows:—' Doyoii 
 believe in a CJod ? ' — ' I do not.' ' ])o you Ijclieve in the obligati«;n 
 of an oath ? ' — ' I believe my word is my bond.' ' Do you believe 
 that there is an oblij^ation attached to the oath ? ' — ' I do not Ije- 
 lieve in an obligation of an oath any more than on that of my word.' 
 ' Do you believe in a future state of rewards and punishments V — 
 ' I do not.' '])o you believe that you are bound to speak the 
 truth ? ' — '1 do.' 'Do you believe yon are responsible if you tell a 
 falsehood ? ' — ' I do, to my fellow men and to my own conscience.' 
 * Do you believe in a moral obligation to speak the truth ? ' — ' I 
 do.' ' Do you believe that you are morally bound to speak the 
 truth by the solemn declaration you have taken ? ' — ' 1 do.' It 
 was held that the judge rightly refused to permit her to be exa- 
 mined, {h) 
 J[ctiio(l of The proper method, however, of administering the oath must 
 
 theoath *^""° Vary according to that which the proposed witness himself consideis 
 most obligatory ; (c) for, 'as the purpose is to bind his conscience, 
 every man of every religion should be bound by that form which 
 he himself thinks will bind his own conscience most.' {d) There- 
 fore, a Mahometan should be sworn on the Alcoran ; (e) a Jew on 
 the Pentateuch, with his head covered (/) a Geutoo according to 
 his peculiar forms, {g) So a witness professing Christianity, but 
 declining to swear on the New Testament, was allov/cd to be sworn 
 on the Old Testament, upon stating that he should consider such 
 oath binding on his conscience. (It) By the law of Denmark an 
 oath is taken in all judicial proceedings by holding up three fingers 
 of the right hand, to indicate the three persons of the Holy Trinity, 
 and promising to speak the truth, {i) But although it is highly 
 
 {«) Willes's Eep. 549. now-a-days take the book at the time 
 
 {h) Madau i\ C'atanacli, 7 11. & X. when they are sworn. An English wit- 
 SCO, ness always [ilaccs his fingers] under, 
 
 (c) AVilles's L'ep. r»49. and his thuml) at the top of the book. 
 
 {d) r.y Lord Jlansliild in Atcheson v. A Welsh witness, on the eontrary, ])lares 
 
 Everitt, C'owp. 389. And see Jliller r. his three ringers at the top, and his 
 
 Salomons, 7 Exch. R. 475. thumb under the book, whilst his little 
 
 {(■) Jrorgan's ease, 1 Leach, 54. linger doi s not toueh the book at all. 
 
 (./■) Omiehund r. Barker, AVillcs, 543. And 1 have often observed witnesses in the 
 
 1 I'hill. Ev. 9. bi'X let the book remain on the top of the 
 
 (g) 1 rhill. Ev. 9. 1 Cliit. Crim. L. box with their three lingers upon the 
 
 591. book until the time to kiss it arrived, 
 
 (h) Edmonds r. Kowe, R. & ^1. N. V. R. when they raised it from the box to their 
 
 77, Bosanquet, Serjt. lips. Now no doubt this practice ori- 
 
 (i) Boelen r. Mejladew, 10 V. & V>. ginated from the ancient fonn of taking 
 
 ^^?:. The lirst instanei' in which anoatli the oath with the hand raised in the 
 
 is mentioned in the Bible is CJen. 14, v. manner above described, and which, in 
 
 21, wliich ought to be translated, ' I have process of time, was changed first to 
 
 lilted u]) my hand to Jehovah ; ' but the laying the thive fingers uj)on the book, 
 
 like expression occurs fretiuently after- and so taking the oath, and aftenvards to 
 
 wards in the original, though sometimes raising the l>ook and kissing it. There 
 
 it is otherv.ise translatetl in our vei-sion. is no doubt that originally an oath was 
 
 Mr. Greaves, in the 4tli editii>n of this taken without touching anything : and 
 
 work, remarks that ' A very remarkable Selden, vol. 2, p. 1467, plainly shows 
 
 di>tinction exists between the manner in that such was the custom among the 
 
 which English ami SouthWelsh witnesses early Christians, but he also shows that
 
 CHAP. V. § VII.] Competency of Witnesses. 615 
 
 desirable that a witness should be sworn according to the form 
 which he considers Tiiost binding on himself, yet, if he lias taken 
 the oath in the usual form administered in our courts of law, with- 
 out objecting to it, and upon being questioned whether he consi- 
 ders the oath he has taken as binding on his conscience, he answers 
 in the affirmative, he cannot then be further asked whether there 
 be any other mode of swearing more binding on his conscience than 
 that he has already used, {j) For if the witness says he considers 
 the oath as binding on his conscience, he does, in eft'ect, affirm that 
 in taking that oath he has called his God to witness that what he 
 shall say will be the truth, and that he has imprecated the Divine 
 vengeance on his head if what he shall afterwards say is false, and, 
 having done that, it is perfectly unnecessary and irrelevant to ask 
 any further questions, {h) And so where a negro, who was called 
 as a witness, stated before he was sworn that he was a Christian 
 and had been baptized, it was held that he ought to be sworn with- 
 out any other question being asked. (/) 
 
 The intercourse of nations must frequently give rise to the neces- Ju<licial oaths 
 sity of the sanction of an oath in matters that concern both ; by*^tLe7a™'^of 
 sometimes with reference to treaties into which they may enter, nations, oatii.s 
 sometimes with reference to the administration of criminal or civil of o^pc or of 
 justice : the sanction of an oath, if valid at the place where taken, ijy^the'^muai- 
 ought to be considered valid everywhere ; just as marriage valid at cipal law. 
 the place where celebrated is (generally speaking) valid everywhere 
 else ; and as an oath is the personal act of the party taking it, if a 
 witness be in a foreign land, his oath ought to be received as it 
 would be received in his own country. In fact, a judicial oath (tor 
 justice is of all countries and climes) is governed by the law of 
 nations; but an oath of office or of qualification is governed by the 
 municipal laws of the state which rec[iiircs it to be taken, and by 
 those laws alone, {m) And in the case of oaths of office or of quali- 
 fication, where the very form of the oath as well as the oath itscU' 
 is prescribed by the legislature, there the directions of the lugisla- 
 ture must be literally followed, and the oath must, and can only 
 lawfully, be taken in the prescribed form, mitil that form be altered 
 by the same authority which appointed it. (j?) 
 
 The 1 & 2 Yict. c. lOo, enacts, that 'in all cases in whith an a i«.-r.snn 
 oath may lawfully be and shall have been admini.stcrcd to any i'""n.l i.y an 
 
 •'. , •' . ., 1 , • oatli nihninis- 
 
 person, either as a juryman or a witness, or a deponent in any t<.,.,.,i in .such 
 proceeding, civil or criminal, in any court of law or equity in llie form .-us he 
 United Kinfjdom, or on aiiiujintment to any office or employment, ni.ay .lee Lire to 
 or on any occasion wliatever, such person is bound li} the oaiii 
 
 the custdin of toiuliiiif,' tin' lionk was dc- on tin' O.isi.cls, was a. low ; nml the r.mrt 
 
 rived from the l'a<;aii.s.' Seu .'J lii.st. 1G5. rcfuHod to ^'rant n rule. Ixing uiiinii- 
 
 Jacob's Law ]). (Oath). '1 Hale, V. C. mously of opinion that the oath as taken 
 
 279. C'oltr. Dutton, 2 Sid. 1». (i. More was landing on tiie witness lM)lh a.s n 
 
 information on the subject of oath.s-niay moral an<l religious ohligution : and 
 
 be found in Notes and Qitrri'S, vol. 8, p. Kiehanlson, J., oKserTcd. that if the wit- 
 
 364, 471, 605 ; vol. 9, p. 4.'., CI, 40:5 ; ness had sworn falsely, he might I-' 
 
 vol. 10, p. 271 ; vol.. 11, p. 2.^2 (1st convicted of perjury under the oath he 
 
 Ser.) ; and vol. 2, p. 293 (3rd Ser.). had taken. 
 
 (;■) The Queen's case, 2 15. & H. 285. (0 H<'K- '•• -Sen'o, 2 C. & K. 53. 
 
 (l-) Ibid. See atso Sells r. Hoare, 3 Piatt, H. 
 B. & r>. 232, where, on an application {in) Per Tolloek, T. H. Miller r. Salo. 
 
 for a new trial, it appeared that a wit- mou.s, 7 Exch. H. 47.'>. 
 ness who had been sworn as a Christian, (h) Per .Mdurson, H. Ibid.
 
 r,ir, 
 
 Of Evidence. 
 
 [l500K VI. 
 
 rro|ior 1110. lo 
 of cxmniiiatinu 
 to try wit- 
 ness's coiiipe- 
 teiicy. 
 
 Triiil cannot 
 be postponed 
 until an adult 
 is instructed. 
 
 Quakers and 
 Moravians. 
 
 3 & 4 Will, i, 
 c. 82. 
 Sep.uatists. 
 
 ntliuiiiistcred : provided the s.'unc sliall have hcc-n admiiiistorcd in 
 such luiiu and with .such ceremonies as .such person may declare 
 to he hinding; and every such person, in ca.se of wilful false 
 swearint,'', may he convicted of the crime of perjury, in the same 
 manner .as if the oath had heen administered in the form and with 
 the ceremonies most commonly adopted.' 
 
 The proper method of examining a witness, if the examination 
 tends merely to try his curiijicfencij in respect to religious principle, 
 is not to question him as to his particular opinions (as whether he 
 believes in Jesus Christ), but to inquire whether he believes in 
 the existence of a God, the obligation of an oath, and a future state 
 of rewards and punishments: (o) but if the examination be pre- 
 vious to swearing the witness, for the purpose of asceilaining what 
 form of administering the oath will be most proper, as most l>ind- 
 ing on the witness's conscience, it is said to be not irregular to ex- 
 amine him as to his opinions ; as whether he believes in the Gospels 
 on which he is about to be sworn, (p) If a material witness, Avho 
 is an adult, and of sufficient intellect, has no idea of a future .state 
 of rewards and punishments, it is not proper to discharge the jury, 
 and postpone the trial, in order that the witness may have an op- 
 portunity of being instructed upon that subject before the next 
 assizes, as may be done in the case of a child, (q) 
 
 Quakers were formerly excluded from giving evidence, not in- 
 deed from defect of religious principle, but owing to their refusal, 
 upon religious scruples, to take any oath at all. (r) But this di.s- 
 ability is now^ entirely removed. The statutes upon this subject 
 are noticed ante, p. 26. 
 
 The 3 & 4 Will. 4, c. 82, reciting, that 'there are in various 
 places in Ireland, and in some parts of England and elsewhere, 
 certain dissenters from the- United Church of England and Ireland, 
 and from the Church of Scotland, commonly called Separatists,' 
 enacts, that ' every person for the time being belonging to the said 
 sect called Separatists, who shall be required upon any lawful oc- 
 casion to take an oath in any case where by law an oath is or may 
 be required, .shall, instead of the usual form, be permitted to make 
 his or her solemn affirmation or declaration in these words follow- 
 ing, viz : — ' I, A. B., do, in the presence of Almighty God, solemnly, 
 sincerely, and truly affirm and declare that I am a member of 
 the religious sect called Separatists, and that the taking of any 
 oath is contrary to my religious belief, as well as essentially 
 opposed to the tenets of that sect ; and I do also in the same 
 solemn manner affirm and declare.' Which said solemn affirmation 
 
 (o) Eex V. Taylor, Teake, X. V. C. 11, 
 by Buller, ,T., 1 Phill. Ev. 11 ; and ac- 
 cording to the judgment of Willes, C. J., 
 in Omiohundr. Barker, Willes, 541, nnlc, 
 p. 614, it seems sufficient if the witness 
 believes in such a st^ite either in this 
 world or the next. 
 
 (p) 1 Phill. Ev. 11. 
 
 (q) Rex V. Wade, II. & M. C. C. H. 
 86. R. r. W'hitehead, 10 Cox, V. C. 
 234. 
 
 (r) Their solemn animation, liy the 
 7 A 8 Will. .3, c. 34, 8 Geo. 1, o. 6, and 
 2t) Geo. 2, c. 46, s. 36, was admitted in 
 ccmrts of justice to have the same effect 
 
 as an oath in all civil, but not in criminal 
 cases. It was, however, receivable in 
 cases which are only technically crimi- 
 nal, as in penal actions, Atcheson v. Eve- 
 rett, Cowp. 382, but excluded in all 
 proceedings substantially criminal, as on 
 a motion for an information for a misde- 
 ineanor. Eex r. Wych, 2 Str. 872. Rex 
 i". Gardner, 2 Burr. 1117. But where 
 the application to the court was against 
 a l^uaker, his affirmation might be re- 
 ceived in his own defence, though the 
 proceedings were of a criminal nature. 
 Kex V. Gardner, supra.
 
 CHAP. V. § VII.] Competency of Witnesses. 
 
 or declaration shall be adjudged and taken, and is hereby enacted 
 and declared to be of the same force and effect, to all intents and 
 purposes, in all courts of justice and other places whatsoever, where 
 by law an oath is or may be required, as if such Separatists had 
 taken an oath in the usual form.' 
 
 As to persons refusing from conscientious motives to be sworn, or 
 being incompetent to take an oath, being allowed to affirm or 
 declare, see 24 & 25 Vict. c. C6, s. 1, (t) and 32 & 33 Vict. c. 68, s. 4, 
 ante, p. 27. 
 
 By the 14 & 15 Vict. c. 99, s. IG, 'every court, judge, justice, 
 officer, commissioner, arbitrator, or other person, now or hereafter 
 having by law or by consent of parties authority to hear, receive, 
 and examine evidence, is hereby empowered to administer an oath 
 to all such witnesses as are legally called before them respectively.' 
 
 By the 13 k 14 Vict. c. 21, s. 4, in all Acts of Parliament ' the 
 words "oath," "swear," and "affidavit," shall include affirmation, 
 declaration, affirming and declaring, in the case of persons by law 
 allowed to affirm instead of swearing.' 
 
 Where an oath is administered before a court, judge, or magis- 
 trate, by a crier, clerk, or other person, the oath is in point of 
 law administered by the court, judge, or magistrate : for the person 
 who actually administers the oath is the agent of the court, judge, 
 or magistrate, and when he administers the oath, tlic court, judge, 
 or magistrate administers it. (u) 
 
 A witness who is subpoenaed cannot object to be sworn on the 
 ground that any questions which may be put to him would tend to 
 criminate him; but he must be sworn, and must either answer 
 the questions, or object to answer them, if he insists on any privi- 
 lege in that respect, (y) 
 
 3. Disqualification, &c. Previous to the 53 Geo. 3, c. 127, there 
 was great doubt whether persons excommunicateil by the ccch-si- 
 astical courts were competent witnesses ; (-?'.•) but by that statute 
 excommunication is not to be pronounced except in certain cases ; 
 
 617 
 
 Court, &c., 
 niiiy adiuinLs- 
 tcr oath.s. 
 
 Oath includes 
 iitrirmation. 
 
 Oath admin- 
 istered in the 
 ]ire.scnce of 
 the court. 
 
 A witncM 
 cannot refii.«e 
 to l>c swoni, 
 because any 
 questions may 
 eliminate him. 
 
 Excommuni- 
 cated i>en>on8. 
 
 (0 By 30 & 31 Vict. c. 35, s. 8, and 
 ■whereas relief has been f^iven by the sta- 
 tute 24 k 25 Vict. e. 66, to 'persons refus- 
 ing, from alleged conscientious motives, to 
 be sworn as witnesses in criminal ])roceed- 
 ings, and it is expedient Xo extend that 
 relief to jiersons reijuiieil to serve as 
 jurors : ' Therefore, if any person sum- 
 moned or required to serve as a juror in 
 any civil or criminal proceeding, shall re- 
 fuse or be unwilling, from alleged eon- 
 seientiinis motives, to be sworn, it shall 
 be lawful for tlu; court or judge or other 
 presiding ollicer or ]ierson qualilied to 
 administer an oath to a juror, upon being 
 •satisfied of the sincerity of such objection, 
 to permit such jierson, instead of being 
 sworn, to make liis or her solemn aflir- 
 mation or doclaratiou in the words fol- 
 lowing : 
 
 'I, A. B. , do solemnly, sincerely, and 
 truly alMrni and declare, that tlie taking 
 of any oath is, according to my religious 
 belief, unlawful ; and 1 ilo also solemnly, 
 sincerely, and truly atlirm and declare,' 
 &c. Which solemn afllrm.ition and de- 
 
 claration shall be of the s;ime force and 
 effect, and if untrue shall entail all the 
 same conseipiences, as if such jierson had 
 taken an oath in the usual form ; and 
 whenever in any legal j)roceedings it is 
 necessary or usual to state or allege that 
 jurors have been sworn, it shall not bo 
 necessarj' to specify that any jiarticular 
 juror has made afiirmation or tleclaration 
 "instead of oath, but it shall Ik- Bullieiciit 
 to .state or allege that the juroi-s have 
 been "sworn or allirnied." 
 
 (i<) K.g. r. Tew, Dears. (,'. C. 420, 
 where an objection that tiie oath wnsnd- 
 ministen-d to the witnesses going before 
 the gnmd jury by the crier in ojtiMi rourt, 
 whereas it ought to liave been adminis- 
 tered by the Clerk of the Pencr, was held 
 to bo unfounded, frivolous, and dis- 
 creditable. See th.- 10 k *_'0 Vict. c. 
 .'51, as to the grand jury swearing the 
 witnesses. 
 
 (») Boyle V. Wiseman, 10 Exch. H. 
 647. 
 
 (w) Gilb. Ev. 130.
 
 618 (> f Evidence. [book vi. 
 
 ;iM(l by sec. H, in those cases, parties excommunicated sluill incur 
 no civil disahilitios. 
 f) k 7 Vi.t. 'I'Ih' (i iV- 7 Vict. c. S.'), s. ], reciting tliai ' the iiKpiiry afttr truth 
 
 c. M.'). Wit- jii courts (if justice is often obstructed l^y incujiacities created 
 l'.rexrl!'i!'lL'.l' ''-^ ''"^' lirescnt law, and it is desiral^h; tliat full inf<;rinution as to 
 from ;^iviiig ihufacts in issue, both in criminal and in civil cases, .should be 
 cvi.lcn.c iiy l;ii,l before the per.son.s wiio are appointed to decide upon them, 
 from riiinc or ''*'^*^ ^''''^^ '''"^'* pcrsons should excrcise their judgment on the 
 interest Credit of the witnesses adduced and on the truth of their testi- 
 
 mony,' enacts 'that no person offered as a witness shall hereafter 
 bo e.xchuletl by vcdson of incu'pac'ily from crime {x) or intercut (>/) 
 from giving evidence, either in person or by deposition, according 
 to the practice of the Court, on the trial of any issue joined, or 
 of any matter or question, or on any inquiry arising in any suit, 
 action or proceeding, civil or criminal, in any court or before any 
 judge, jury, sheriff, coroner, magistrate, officer, or person having 
 by law or by consent of parties authority to liear, receive, and 
 examine evidence ; but that every person so offered may and 
 shall be admitted to give evidence on oath or solemn affirmation 
 in those cases wherein affirmation is by law receivable, notwith- 
 standing that such person may or shall have an interest in the 
 matter in question, or in the event of the trial of any issue, matter, 
 question, or injur}^ (z) or of the suit, action, or proceeding in which 
 he is oticred as a witness, and notwithstanding that such person 
 otfered as a witness may have been previously convicted of any 
 crime or offence.' («) 
 
 In one case since this Act Mr. Justice Lush said he considered a 
 person under sentence of death was not a competent witness, but, 
 if it became necessary, he would reserve the point. (6) 
 
 Wliere upon an indictment for felony two prisoners, who had 
 pleaded guilty to the same indictment, were called as witnesses 
 on the part of the Crown, and tliey had been i:)reviously convicted 
 and sentenced for another and ditferent ofli'cnce ; it was urged 
 that they were incompetent, as they were incapable, as attainted 
 felons, of being witnesses at common law, and as they were ' in- 
 dividually named upon the record' their competency was not 
 
 (x) Before this Act if a jierson bad been videtl that this Act shall not render com- 
 convieted of certain ofh'noes, he was in- petent any party to any suit, action, or 
 competent to give evidence. But in ]iroceeding individually named in the re- 
 order to exclude a person from being a cord, or any lc.>-sor of the plaintitf or tenant 
 witness on this accoiuit, it was necessary of premises sought to he recovered in 
 to jiroduce the record, not only of his ejectment, or the landlord or other person 
 conviction, but of the judgment thereon. in whose right any defendant in replevin 
 (!ill). Ev. 128. t'oni. Dig. Testm. A. ;">. may make cognizance, or any person in 
 Outlawry in a ])ersonal action did not whose immediate and individual behalf 
 make a person incompetent as a witness. any action may be brought or defended, 
 Co. Litt. H b. ; Com. Dig. Testm. A. 5. cither wholly or in part, or the husband 
 
 (//) Before this Act persons having an or wife of such persons respectivelj'.' But 
 interest in the event of a suit, were ex- the whole of this proviso, except so much 
 eluded from being witnesses in favour of as relates to husbands and wives, was re- 
 that party to whieii their interest inclined pealed by the 14 & 15 Vict. e. l>0. s. 1, 
 tliem. As to the nature of the interest and the remainder bj- the 16 & 17 Vict, 
 that excluded, see 1 Phiil. Ev. 1 Stark. c. 83, s. 4. The section also contains a 
 Ev. Smith v. Prager, 7 T. \\. 60. But proviso that it shall not repeal any pro- 
 no relationship, except that of husband vision in the "Wills Act, 7 Will, i & 1 
 and wife, created a disipialifying interest. A'iet. e. 26, and a proviso as to the 
 
 (:) Sic — plainly a mi.stakc for 'in- examination of defendants in courts of 
 
 q"iiy-' e.piitv. 
 
 I'T) The clause then proceeded, 'Pro- {h) \\. r. AVebb, 11 Cox, C. C. 133.
 
 CHAP. V. § VII.] Comjjeteicci/ of Witnesses. 619 
 
 restored by Lord Denraan's Act (6 .t 7 Vict. c. 85) ; but Rolfe, B., 
 held that they were admissible. They could not be either gainers 
 or losers by the event of the trial then proceeding, and they 
 could not be coasidered as parties to the proceeding then before 
 the Court, (c) 
 
 The 14 & 15 Vict. c. .9!), s. 2, enacts 'that on the trial of any u k 15 Vicf. 
 issue joined, or of any matter or question, or on any inquiry «• ''9. ». 2. 
 arising in any suit, action, or other proceeding in any court of ^'f*"^.,*? ^ 
 
 ^- 1 c I'll , ^ -^ ~ . almi«siblc 
 
 justice, or betore any person havnig by law, or by consent of parties, witncsoos. 
 authority to hear, receive, and examine evidence, the parties 
 thereto, and the persons in whose heltalf any such suit, action, or 
 other proceeding may he brought or defended, shall, except as 
 hereinafter excepted, be competent and compellable to give evidence, 
 either viva voce or by deposition, according to the practice of the 
 court, on behalf of either or any of the parties to the ^-aid suit, 
 action, or other proceeding.' (cl) 
 
 Sec. 3. 'But nothing herein contained shall render any person Nothing herein 
 who in any criminal proceeding is charged vjith the commission ^ render a 
 of any indictable offence, or any offence punishable on summary Iwtrany iu'^'*^ 
 conviction, competent or compellable to give evidence for or against dictahle 
 himself or herself, or shall render any person compellable to answer ^^^^'^'^^ ^<' » 
 any question tending to criminate himself or herself, or shall in any compeliallc^to 
 criminal proceeding render any husband competent or compellable give evidence 
 to give evidence for or against his wife, or any wife competent or f^"" or afr-unst 
 compellable to give evidence for or against her husband, (e) ' ' . 
 
 In any criminal proceeding defendants jointly indicted for or 
 charged with the commission of any offence, and on their trial, 
 cannot bo called as witnesses for or against themselves or each 
 other, notwithstanding anything contained in the 14 & 15 Vict. c. DD, 
 ss. 2 and 3. Four prisoners were jointly indicted for night poach- 
 ing, and during their trial, and at the close of the case for tl»c 
 prosecution, it was proposed to call one of the prisoners to prove 
 an cdibi for another of them. The proposed witness had been 
 examined before the justices on the committal of the other throe 
 prisoners, and had given evidence of an alibi, and had been bound 
 over, by recognisance, by the justices to give evidence on the trial 
 under 30 &, 31 Vict. c. 35, s. 3, but had been afterwards taken 
 into custody, and committed, and was indicted jointly with the 
 others. No nolle prosequi was entered for him, nor tiid ho plead 
 guilty, and no application had been made for a separate trial. 'J'he 
 evidence was rejected. Held, that the evidence wius propt-rly 
 rejected, and that the conviction was right. (/) If two prisoners 
 be jointly indicted, and one alone be given in charge to tlie 
 
 ((;) I?eg. r. Diary, 3 (.'. & K. 190. It Vict. c. 3t>, in tlif Apixiidix. 
 
 will be ol)S('rv('d lliiit it was not even (c) Sec. 4 provides tliat nothing in this 
 
 contended in tliis case that the ])ri,sonors Act shall apidv to priHccdinj;"* in conse- 
 
 Avere incomiictcnt, cxociitinj,' by reason of (jncncc of adultery, or hrcadi of jtroniiHe 
 
 the proviso, and that proviso is now re- of niarriajjc ; and s<'c. r>, tliat the Act 
 
 pealed. shall not repeal anv provision in the Will.< 
 
 (d) The 17 & 18 Vict. c. 122, s. 15, Act, 7 Will, i k\\ id. c. 2«{. 
 
 enacts that this section 'shall not be (/) U. v. l'ayn<-, 41 L. J. M. C. fl5. 
 
 deemed to ajjjily to any prosecntion, snit, Refore this ca-s*' then- was .sonio doiiht 
 
 or other jirocceding in respect of any alM>ut this. See 1 Hale, :505 ; 2 Stark. 
 
 offence, or for the recovery of any penalty Kv. 11. See Ten-y ('re.Hhy's ca.He, N'oy, 
 
 or forfeitnre, under any law now' in force, ].')!, cited 2 Hale, 231. W. r. Lyons, 9 
 
 or hereafter to be made relating to the ('. 4, V. Sf..";. 1!. v. Dceley, 11 Cox, C. C. 
 
 customs or inland revenue.' See '6\ik 40 0(i7.
 
 620 
 
 A pri.soruT 
 who is nc- 
 quitted JH 
 roniiictcnt. 
 
 A in'isoncr 
 who h.'us 
 jiloaileil (guilty 
 liiit is not 
 Kcnteiiccil, is a 
 competent 
 witness for an- 
 other prisoner. 
 
 Or against 
 another pri- 
 soner. 
 
 Of Evidence. 
 
 [book VI. 
 
 Husbands and 
 wives of 
 parties to be 
 admissible 
 witnesses. 
 
 Except in 
 criminal 
 cases and in 
 
 jury, the other is an admissiblo witncs.s (tlioii;,fli ncitlicr ac(|iiitted 
 nor convicted, and though a mAla inuiHoqal i.s not enteretJ) upon 
 tlic trial of the prisoner with whom the jury are charged. (7) 
 
 Where one ot" several prisoners jointly indicted is acquitted, lie 
 is a competent witness against the others ; (h) and it is equally 
 ck'ar that he is a competent witness for the others. 
 
 Where, l>eforc the 14 Sc 1.5 Vict. c. 1)!), George an<l Ford were 
 jointly indicted for housebreaking, and George pleaded guilty, but 
 was not .sentenced ; Coltman, J., held that he might be called a.s a 
 witness for Ford, (i) 
 
 So where Hinks and Waywood were jointly indicted for larceny, 
 and Waywood ])leaded guilty, but judgment was respited in his 
 case, and the trial proceeded against Hinks, and Waywood w .'is ad- 
 mitted as a witness for the prosecution ; it was liehl, upon a case 
 reserved upon the question whether he was a competent witness 
 under the 6 & 7 Vict. c. 8-5, s. 1, that he was admissible at common 
 law. (j) 
 
 Where Jackson and Gracknell were jointly indicted for forgery, 
 and Jack.son, who was also charged with having been previously 
 convicted of felony, pleaded guilty to the charge of forgery, but 
 denied his previous conviction, and the jury found that he had 
 been previously convicted ; Erie, J., was of opinion that the proper 
 course was to pass sentence upon him, and so put an end to the 
 whole matter as regarded him, before he allowed him to give 
 evidence for the other jirisoner ; and this course was adopted, (k) 
 
 Wherever it has been intended to call a prisoner as a witness 
 against those jointly indicted with him, the practice has been to 
 obtain the leave of the court to offer no evidence against the 
 particular prisoner, and to take an acquittal of him before 
 examining him as a witness. {I) 
 
 The IG & 17 Vict. c. 83, s. 1, enacts that 'on the trial of any 
 issue joined, or of any matter or question, or on any inquiry arising 
 in any suit, action, or other proceeding in any court of justice, or 
 before any person having by law or by consent of parties authority 
 to hear, receive, and examine evidence, the husbands and wives of 
 the parties thereto, and of the persons in whose behalf any such 
 suit, action, or other proceeding may be brought or. instituted or 
 opposed or defended, shall, except as hereinafter excepted, be 
 competent and compellable to give evidence, either viva voce or by 
 deposition, according to the practice of the court, on behalf of 
 either or any of the parties to the said suit, action, or other pro- 
 ceedinor.' 
 
 Sec. 2. ' Nothing herein shall render any husband competent or 
 compellable to give evidence for or against his Avifc, or any wife 
 
 (y) "Winsor r. Tlie Queen, 35 L. J. 
 M. C. 161 ; see this case ante, p. 603. See 
 K. !■. Galiaiiher, 13 Cox, C. C. 61. 
 
 (/i) R. iOO'Donnell, 7 Cox, C. C. 337, 
 five judges on a case reserved in Ire- 
 land. 
 
 (i) Reg. V. George, C. & M. 111. Reg. 
 V. King, 1 Cox, C. C. 232, Piatt, 15., 
 aftor consulting Erie, J. Reg. r. Arundel, 
 4 Cox, C. C. 260, Rattoson, J. 
 
 (>) Reg. V. Hinks, 1 Den. C. C. 84. 2 
 C. & K. 462. S. C. as Reg. r. Williams, 
 
 1 Cox. 0. C. 289. Tlie only observation 
 as to the 6 & 7 Viet. c. 85, was made 
 by Aldei-son, B., in answer to the state- 
 ment tliat Waywood was a party indivi- 
 dually named in the record, who sjiid that 
 he was not a jvirtv to the issue. Hawkes- 
 worth V. Showier," 12 M. & W. 45. 
 
 (A) Reg. r. Jackson, 6 Cox, C. C. 
 525. 
 
 (/) Rex r. Rowland, R. & M. N. P. R. 
 401. Reg. r. Owen, 9 C. & P. 83 ; anU, 
 p. 603.
 
 CHAP. V. § VII.] Competency of Witnesses. G21 
 
 competent or compellable to give evidence for or against licr luis- rases of a Jul - 
 
 band, in any criminal i3roceeding, or in any proceeding instituted in ^^'■^'• 
 consequence ot" adultery.' {m) 
 
 Sec. 3. * No husband shall be compellable to disclose any com- Husbands and 
 
 munication made to him by his wife durins,^ the marriafre, and no "'^'^ ^'^^ 
 
 J O o ■^ coniDGllcu to 
 
 wife shall be compellable to disclose any communication made to disclose com- 
 lier by her husband during marriage.' {n) muuications. 
 
 With the exceptions hereafter pointed out, husband and wife 
 have always been incompetent to give any evidence for or against 
 each other in criminal cases ; (o) therefore the wife of a prisoner 
 cannot give evidence for him. 
 
 And they cannot be witnesses against each other, by reason of Against e.ieli 
 the dissensions and distrusts that it would occasion, inconsistent ''^"^'^' 
 with the happiness of married life and the peace of families ;{})) 
 and therefore, on an indictment for bigamy, the first and true wife 
 cannot be admitted to give evidence against her husband ; {q) 
 but, after proof of the first marriage, the second wife may be a 
 witness. (>') And where an offence can only be committed by 
 several joining in it, as conspiracy or riot, the husband or wife of 
 one of those who are jointly indicted has always been an incom- 
 petent witness for or against any of the others ; for the acquittal or 
 conviction of such other would directly tend to the acquittal ur 
 conviction of the wife or husband, as the case might be. Thus on 
 a prosecution against several persons for a conspiracy, the wife of 
 one of the defendants was held not to be a competent witness for 
 the others, a joint offence being charged, and an acquittal of all 
 the other defendants being a ground of discharge for her hus- 
 band. (.*>•) And wherever the ac(|uittal of the principal would enure 
 to the accessory's discharge, it may well be doubted whether the 
 wife or husband of the accessory would have been a competent 
 witness for the principal. 
 
 On an indictment for conspiracy against Ham}) and others, Mrs. 
 Broome was examined for the prosecution, and it appeared that 
 her husband had been bound by recognizances to appear and take 
 his trial for cheating at play at a previous assize, but that he t.lid 
 not appear, and had not returned home since, and the wife being 
 asked whether she had not seen her husband in Birmingham a few 
 days before, said, ' I decline to answer the question, because my, 
 husband did not appear to his recognizance;' Lord Campbell, 
 C. J., 'I think on that the question ought not to be proposeil.' (0 
 
 The wife of one of several prisoners on their trial at the same Wifcofono 
 time on a ioint indictment cannot be called as a witness for or i""''"'"" «»- 
 agamst any ot the prisoners, notwithstanding that the nulictnient „^.^i,„t 
 contains more counts than one respectively charging ilistinct .inoiher pri- 
 soner. 
 
 (?)!,) So iiiui li of this Roctiou as is 46, s. 70. 
 containeil in thr wonls 'or in any pro- (;») Uill.. Ev. llli. '1 Hawk. 1". C r. 
 
 oeoaiiig instituteil in consiMjui-nc.- of 4(3, .s. 70. Ikiki-r r. Dixi.-, Cits, t.-niit. 
 
 adultiTy ' iiir lepcalc'd hy 3-2 & 33 Vi.l. Hnrdw. 204. 
 c. 68, s. 1. ('/) -•'"'<•. I'- '^^•'- „ . , 
 
 {n) Sec. 4 U'jx'als so iiiurli of see. 1 of (/•) Wolls r. Pishrr. 1 Jl. k Kob. 09. 
 
 tlie 6 & 7 Vict. c. 8;1, asi.iovi.listliat til.' (a) .//(/<•, !». 143. K. r. Fn-tlerick, 2 
 
 Act shall not render compitcnt tiic hus- Sir. 101)5. U. r. Smith. W.k .M. C C. K. 
 
 bands and wives of the parties therein 281*. See Knihl's ea.s.-, 1 U'aeh, 1'27. 
 enumerated. (0 Heg. r. Hanip, 6 Cox, C. C. 167. 
 
 (o) Gilb. Kv. liy. 2 Hawk. P. C. c.
 
 622 
 
 Of Evidence. 
 
 [book VI. 
 
 Not comjic- 
 tcnt, cvi'ii li; 
 consent. 
 
 Collatfial 
 casos. 
 
 offences. (i() And wlicro npon an indictment a;,'ainst WeLlj and 
 tlirec other prisoners U)X sheei)-stcalin<f the counsel for the prose- 
 cution proposed to call the •\vifbof Webb to prove facts against tlie 
 other ]>risoners, and urged tliat it ■was only in cases where the 
 aciiuittal or conviction of one prisoner liad a direct tendency to 
 cause the actpiittal or conviction of the other prisoners that the 
 wife of one prisoner Avas incunipetont to give evidence for or against 
 the other prisoners ; but BollaiHl, !>., held that the witness was in- 
 competent, (v) 
 
 In a civil case Lord Hardwicke would not suffer a wife to give 
 evidence for her husl)and, even by consent of the other party, {vj) 
 And even after a divorce by Act of Parliament, the wife is not com- 
 petent in an action against her husband to give evidence of any- 
 thing that liappcned during coverture, (./) on the ground that the 
 conHdence which subsisted between them at the time shall not be 
 violated in consequence of any future separation. (?/) The rule, how- 
 ever, must be understood as applying to cases where the husband or 
 wife are directly accused of a crime, and not as extending in tlie 
 same degree to collateral suits or proceedings between third persons. 
 It was. indeed, once held,, in Ilex v. Cliviger, (z) that husband and 
 Avife in collateral cases are not to be permitted to give any 
 evidence that might even tend to criminate each other ; for though 
 the evidence of the one could not be used against the other on a 
 subsequent trial for the offence, yet it might lead to a criminal 
 charge, and cause the other to be apprehended. And the principle 
 of that decision would extend to prevent the one from being called to 
 contradict the other ; for the tendency of the evidence of the latter 
 witness would be to prove the former guilty of perjury, (a) But 
 the rule laid down in the case of Bex v. Clivirjer w-as much dis- 
 cussed in the case of Rex v. All Saints, Worcester, (b) in which 
 the Court of King's Bench w^as of opinion that it had been ex- 
 pressed in terms too large and general ; and held, that where the 
 evidence of the wife did not directly criminate the husband (as in 
 a proceeding relating to other matters, and not to any criminal 
 charge against him), and never could be used against him, nor 
 could he ever be affected by the judgment of the Court founded 
 upon such evidence, she was a competent witness. 
 
 So wdiere upon the trial of an appeal a pauper proved his 
 marriage with E., and ^I. B. was then called by the other side to 
 prove that she had previously been married to the pauper; it 
 was held that she was competent for this purpose ; as nothing 
 that was said by her in this case, nor any decision of the Court 
 of Sessions founded npon her testimony, could afterwards be 
 
 (m) K. r. Thompson, 41 L. J. M. C. 
 112 ; 12 Cox, C. C. 202. Before this 
 case there was some doubt about this. 
 See K. V. Payne, aiih; p. 619. Keg. r. 
 Sills, 1 C. &K. 494, July, 1844. Eeg. r. 
 Jloore, 1 Cox, C. C. 59, August, 1843. 
 Eeg. r. Bartlett, 1 Cox, C. C. 105, April 
 1844. Reg. V. Denslow, 2 Cox, C. C. 
 230, -V.B. 1847. 
 
 (r) Rex V. Webb, Bushell, J., and T. 
 Croome, Gloueester Spr. Ass. 1830. JtSS. 
 C. S. G. ; ami see Dalt. c. 164, p. 540, 
 cited 1 Hale, 301. 
 
 (ir) Cas. temp. Haixiw. 264. 
 
 (x) Monroe r. Twisleton, Peake Ey. 
 Appendix. So a widow eannot be called 
 by tlie defendant to disclose conversations 
 between herself and her late husband, in 
 an action by his executors. Doker r. 
 Hasler, K. & M. X. P. R. 19S, ruled by 
 Best, C. J. But sec Beyeridge v. Minter, 
 1 Carr. & P. 304. 
 
 {}/) By I.,ord Ellenborough, in Aveson 
 i: Kinnaird, 6 East, 192. 
 
 (:) 2 T. R. 263. 
 
 (a) 2 T. R. 268. 
 
 (b) 6 M. & S. 194.
 
 CHAP. V. § vn.j Corapdencij of Witnesses. 
 
 received in evidence to support an indictment agciinst her liusband 
 for bigamy, (c) 
 
 But where on an indictment for stealing wheat, Eliza YA\h was 
 called on the part of the Crown to prove tliat her husband, who 
 had absconded, had been present when the wheat was stolen, 
 and that she saw him deliver it to the prisoner; Taunton, J.' 
 doubted whether she could be so examined, as her evidence 
 might be used as a ground of convicting lier liusband by causiiif 
 a charge to be made against him. The two preceding cases were 
 then cited. Tauntoh, J., ' I am against breaking down the rules 
 of law. My opinion is to adhere to the rule laid down by Lord 
 Hale, {d) In Rex v. All Saints, Worcester, at the time when 
 the witness was examined, there was nothing in her evidence 
 to criminate her husband. Here it is sought to make the woman 
 charge her husband, not obliquely, but directly and immediately.' 
 Having consulted Littledale, J., the learned judge added, ' We 
 both agree in opinion that the witness is incompetent. We think 
 Rex V. All Saints, Worcester, very distinguishable. There at 
 the time when the wife was examined there was uothino- in her 
 evidence to criminate her husband. Here the evidence would 
 directly charge the husband with being a principal ; and althou^Th 
 there is no prosecution pending, her evidence cannot but facilitate 
 an accusation against her husband. Now, the law does not allow 
 the wife to give evidence against her husband, and it is quite 
 consistent with that principle that this evidence should not be 
 received.' (e) 
 
 But Avhere the first count charged Halliday with obtainino- 
 money by falsely pretending that a document produced to a bank 
 by Eliza, the wife of D. Thomas, had been filled up by his autho- 
 rity ; the second count was similar as to another document ; and 
 the third count charged Halliday and Eliza Thomas with a con- 
 spiracy to cheat the bank ; but she was not tried with Halliday. 
 The evidence of D. Thomas was essential to prove that he had 
 given no authority to fill up the documents ; but it was objected, 
 on the authority of the preceding case, that he was inconq)ctent to 
 prove his wife guilty of a conspiracy, or even to prove the counts 
 for false pretences ; but Byles, J., thought his evidence admissible 
 on all the counts ; and the jury found the prisoner guilty on the 
 first count only ; and, on a case reserved, it wa.s held that the 
 evidence of the husband was admissible in support of the first count. 
 His evidence no doubt tended to show that his wife liad acted 
 criminally, but that count contained no charge against her. (/ ) 
 
 Where, however, the husband has either been convicted or 
 acquitted of the same felony, respecting which the wife is called 
 
 G2:3 
 
 A wife ifi not 
 competent to 
 prove that a 
 prisoner com- 
 miUetl a felony 
 in foinpany 
 wilii her liu.s- 
 l.aii.l. 
 
 The evidence 
 of a liu:sl>anil 
 is admissible, 
 alth(iUi,'h it 
 teniLs to in- 
 culpate hi.s 
 wife in tiie 
 fvime charge 
 with the 
 jiri.'ioner 
 a^'niiist wjnnn 
 the evidence ia 
 given. 
 
 (t) Ilex V. I'.atUwick, '2 15. k A.l. G30. 
 The Court doubted wlietluT the coiniic- 
 tency of a witiu'.ss could iIi'immuI upon the 
 marshalling the evidence, or the .staw of 
 the cause at which tlic witness wa.s called. 
 See Peat's case, ante, p. 31(j. 
 
 {(l) I am not aware of the pa.ssajL,'c 
 referred to by the lcaruc(l judge, but 
 see 2 Hale, P. C. 279, 1 Hale, P. C. 301. 
 C. S. G. 
 
 (c) Ilex V. George Glced, Gloucester 
 Leut Ass. 1832. MSS. C. S. G. 
 
 (/) Heg. V. Halliday, Boll, C. C. 257. 
 The Court .seem to linve con.siden'd the 
 wife coniiM'tcnt on all the <ount-i, n.s PoU 
 lock, C. ]{., nddetl, ' lndee<i, in thi.s in< 
 dictment nIic was not charged at all, 
 although she wa.s involved in the eon- 
 sjiiracy charge.l in the third count ; but 
 that tiid not jinvcnt tin- husband'.s evi- 
 dence from lu'ing admissible.' This ease 
 was not argued, and no iirevious decUioii 
 referred to when it was ueciJud. 
 
 Where hus- 
 baml liaa 
 been convicted 
 or acquitted
 
 G24 
 
 fif H fi-lony, 
 wife limy l»o 
 examined t<> 
 jiriivii ciHo 
 ngiiin.st iiiiothcr 
 liriuoncr. 
 
 Of Evidence. 
 
 [book VI. 
 
 They may bo 
 called to con- 
 tradict each 
 other. 
 
 Indictment for 
 abduction. 
 
 as a wilnoss, she is roiiipcli-nt to bo examined. Tims, on an in- 
 dictment for slicep-stealin;,^, the wile of a person, who liad been 
 ])revionsly convicted of stealing the .same sheep, was liehl a com- 
 petrnt witness for the prosecntion. (7) So where one jirisoner 
 pleaded gnilty, it was held that his wife was a competent witness 
 against the other prisoner jointly indicted with him, as on the 
 issni! to 1)0 trie<l her husband wa.s no longer interested. (/<.) 80 
 where a wife and her paramour were jointly indicted f(jr stealing 
 the goods of ihc husband, it was held that the husband was a 
 competent witness against the paramour; for the wife was en- 
 titled to be ac([uitted, as she could not be guilty of stealing her 
 liusband's goods, (i) And in ThurteU's case Mrs. Probert was 
 examined as a witness against Thurtell after her husband was ac- 
 quitted, (j) In the same manner if Probert had not been appre- 
 hended, and Thurtell only had been on trial at the time, the wife 
 of Probert would have been capable of being examined ; because 
 the (piestion would have been whether Thurtell was guilty, and 
 not whether Thurtell and Probert were guilty, (k) 
 
 And the reasoning upon which the decision in liex v. All 
 Saints, Worceafer, was founded, is equally strong to show that 
 one may be called as a witness to disprove what has been stated 
 by the other, and that either the party who has called the one, or 
 the opposing party, may call the other for the purpose of con- 
 tradicting (/) 
 
 Upon an indictment for forcible abduction and marriage of a 
 woman, she may be a Avitness for the Crown, (n) or the pri- 
 soner ; (0) but this is rather a case which does not fall within 
 the general rule than an exception to it ; for she is not legally 
 his wife, a contract obtained by force having no obligation in 
 law. ( 2')) Indeed, if the actual marriage is valid (as where the 
 woman after abduction consents to the marriage voluntarily, and 
 not induced by any precedent menace), or if the marriage has 
 been ratified by subsequent voluntary cohabitation, it has been 
 said she is not competent for or against the prisoner, (q) But 
 there are very considerable authorities to the contrary. (7") And 
 in one case, where the defendants were indicted for a misde- 
 meanor, in conspiring to carry away a young lady under the age 
 of sixteen, from the custody appointed by her ftxther, and to cause 
 her to marry one of the defendants ; and, in another count, for 
 conspiring to take her away by force, being an heiress, and to 
 marry her to one of the defendants ; Hullock, B., was of opinion 
 that, even assuming the young lady to be at the time of the trial 
 the lawful wife of one of the defendants, she was a competent 
 
 (;/) Weg. V. Williams, 8 C". & P. 2S4. 
 AUierson, B. 
 
 (h) lieg. V. Thompson, 3 F. & F. 824, 
 Keating, J. 
 
 ((■) Hcg. r. Glassie, 7 Cox, C. C. 1. 
 Lofroy, V. J., and ilonahan, C. J. 
 
 {j) IVr Alderson, B., Keg. r. Williams, 
 sxpra. 
 
 (A) Per Alderson, B. Hawkesworth v. 
 Showier, 12 M. & W. 45. 
 
 (/) 1 Phill. Ev. 80, 7th cd. 
 
 in) Gilb. Ev. 120. 1 Hale, P. C. 301, 
 302. 2 Hawk. c. 46, s. 78. Fuhvood's 
 
 case, Cro. Car. 488. Brown's case, 1 
 Ventr. 243. Sweudscn's case, 5 St. 
 Trials, 456. 
 
 (o) Rex r. Perry, at Bristol, 1794, cited 
 bv Abbott, C. J., in Kex v. Serjeant, 
 P". & il. X. P. C. 354. 1 Hawk. P. C. c. 
 41, s. 13. 
 
 (^>) Gilb. Ev. 120. 1 Hale, P. C. 302, 
 660, 661. Bull. N. P. 2S6. 
 
 (q) 1 Hale, P. C. 302, 661. 1 Phill. 
 Ev. 84, 7th cd. 2 Stark. Ev. 553. 
 
 (/•) 4 Blac. Com. 209. 1 East, P. C 
 c. 11, s. 5, p. 454.
 
 ex 
 
 CHAP. V. § vil] Competency of Witnesses. 
 
 witness for the prosecution, althoiigli there Avas no evidence to sup 
 port that part of the indictment which cliarged force, (.s) 
 
 The wife is also admitted as a witness against her lius])and 
 necessitate, in a prosecution of him for oftences against her per- 
 son, {t) So her dying decLarations are admissible against him in the 
 case of murder, {u) In an indictment of Wilham Wliitehouse, (i-) 
 at Stafford, upon Lord EUenborough's Act, for shooting at his 
 wife, she was admitted as a witness for the prosecution by Gar- 
 row, B., after consulting Holroyd, J., upon the ground of the 
 necessity of the case ; and Holroyd, J., sent Garrow, B., the case 
 of Rex V. Jagfjer, Yorkshire Assizes, 1797, where the husband 
 had attempted to poison his wife with a cake in which arsenic 
 was introduced, and the wife was admitted to prove tlie fact of 
 the cake having been given her by her hu.sband ; and Rooke, J., 
 afterwards delivered the opinion of tlie twelve judges tliat the 
 evidence had been rightly admitted. Holroyd, J., however, saitl 
 he thought the wife could only be admitted to prove facts whicli 
 could not be proved by any other witness, {iv) So on an indict- 
 ment against a man for beating his Avife, she was held compe- 
 tent, {x) And the wife is always permitted to swear the peace 
 against her husband, {y) And lier affidavit has been permitted 
 to be read on an application to the Court of King's Bench for an 
 information against the husband for an attempt to take her away 
 by force after articles of separation ; and it would be strange to 
 permit her to be a witness to ground a prosecution, and not after- 
 wards to be a witness at the trial, {z) And it seems to be now 
 settled, that in all cases of personal injuries committed by the 
 husband and wife against each other, the injured party is an 
 admissible witness against the other, (a) 
 
 But this rule seems to be confined to cases where the charge aftocts 
 the liberty or the person of the wife. Thus it has been decided 
 that in an indictment for a conspiracy in procuring a lady, then a 
 ward in chancery, to marry, the wife Avas not a good witness for 
 one of the co-defendants, if her evidence might enure to the ac- 
 quittal of her husband ; (6) and since she could not be admitted in 
 favour of her husband, it follows necessarily that she could not bo 
 a Avitness against him. (r) So on an indictment against the wife 
 
 G25 
 
 Imlictinent 
 for personal 
 violence. 
 
 Not compe- 
 tent in casct 
 where there is 
 no i>ersoD!il 
 injury. 
 
 (,s) Epx 'v. "Wackfickl, see tlio trial, 
 pulilislu'd by JIunay, p. 2.57. 2 Li'wiii, 
 1 & 279. Ill Perry's case, supra, no forci; 
 was used. Sec ]K'r llullock, 15., in 1>. v. 
 Wakefield. In tliis case it was eonti'iided 
 that the wife's incompetency might be 
 shown either by examining her on the 
 voire dire, or by other witnesses, and for 
 the defendant it was proposed to show 
 her incompetency by other witnesses. 
 Hulloik, ]}., ruled that as this was a 
 pohil of practice, and he saw some in- 
 convenience in not calling her, which 
 wonld not exist if she were called, she 
 should be called. 
 
 (t) Loid Au.Uey's case, 1 St. Tr. 3ii3. 
 This case has been denied to be law. but 
 is now established by the highest autho- 
 rities. 1 Hale, 1'. 0. 301. 2 Hawk. P. 
 C. c. 4G, s. 77. I'.ull, N. P. 287. Kex v. 
 Serjeant, P. .^ M. ?,'A. Ifi^g. r. .TcUy- 
 V'^L. iir. 
 
 man, 8 C. & P. C04. 1 East, P. C c. 
 11, s. r., p. 1.^.0. 
 
 («) Woodcock's case, 1 Leach, riKii. 
 John's case, ibid. .'>(i4, n. {a). 
 
 (r) MSS. Kussell, Serjt. 
 
 (w) See Keg. r. Pearce, 9 C. & P. GO 7. 
 S. P. 
 
 (./■) By LordRayimmd on tlie authority 
 of Lord Audlcv's t ase, Hex r. Azire, 1 
 Stra. (•.:!:}. IJull. N. P. 287. 
 
 (//) Bull. N. P. 2S7. 
 
 (c) Lady Lnwley's cn.se. Ibid. 
 
 (a) 1 Last, P. C. o. 11, 8. fi. p. 4.'..''.. 
 In the AVakelields' case, p. 257, HulUKk, 
 P., .said, ' 1 take it, it is cjuite clear now 
 lliat a wife is a compi-tent witness agnin.st 
 her husband in resi« 1 1 of any cluirgo 
 which all'ects her lilxrty and jM-rson.' 
 
 (I>) Hex V. Locker, riKsji. 1(»7. 
 
 (.) l.'ox V. Serjenut, K. k JL '^:>\.
 
 r.iic 
 
 O/Evidenc 
 
 [book vr. 
 
 Ili;;li Ucii.soil. 
 
 Coinpctcnry 
 of a woman 
 living as a 
 wife. 
 
 A wife com- 
 petent aijainst 
 is so for her 
 husband. 
 
 Objections to 
 competency, 
 when to be 
 taken ; 
 
 ol W. S. and (itlier.s, for .1 rons|)ir!icy in prociiriu;;,' W. S. to many, 
 Al)l)()tt, C'. J., reinscd to atliiiit W. S. as a ■witness in stipport of 
 tlie prosecution. {(I) So a wife is not adniissiljlo as a witness 
 against lier Iinsi)and on a cl)ar<,'c of dcsertin;^ her and lic-r cliildrcn 
 against tlio o Geo. 4, c. 83. {e) 
 
 In the ease of high treason it lias been said that a wife .shall he 
 admitted against her husband, because the tie of allegiance is more 
 obligatory than any other; (/) but there are high authorities to 
 the contrary, (r/) 
 
 Whether a woman who has coha1>ited with a man as bis wife, 
 but who is ready to swear she is not married to him, will be allowed 
 to give evidence on the part of the man, has been considered a 
 doubtful (question, {h) pjut it seems now to be settled that the 
 rule relates to persons who have entered into the relation of 
 iiusband and wife ; and does not extend to those who, not being 
 married, have lived together and cohabited as man and wife, (i) 
 'J'hus where a woman had been married to a man wbom .she 
 had not seen for thirty years, and then married again, but 
 afterwards found that the man she had first married was alive ; 
 as the second marriage was a mere nullity, she was held competent, 
 to give evidence of statements made by her second husband during 
 the time they coliabited. (j) So where the prisoner liad married 
 his deceased wife's sister, Erie, J., held that the wife was a com- 
 petent witness against him, as the mai'riagc was void, and that 
 the wdfe might jDrove her relationship to the former wife on the 
 voire dire, (h) So a kept mistress, who has passed by the name 
 and appeared in the world as the wdfe of her protector, has been 
 lield to be a competent witness for him. {I) 
 
 In the case of Rex v. Perry, Gil)bs, C. J., stated that lie could 
 see no distinction between admitting a wife for and against her 
 husband. 'The K'niy v. Perry ^ said Abbott, C. J., in Rex v. 
 Seijcant, (m) ' was much talked about at the time, and C. J. Gibbs 
 expressed his surprise that any doubt should have been enter- 
 tained that a w'ife was in all cases a competent witness for her 
 husband when admissible against him.' 
 
 ■ Ancient]}^ the rule w\as, that if there were any objection to the 
 competency of a witness, be should be examined on the voire 
 dire, (») and it was too late after he was sworn in chief, (o) But 
 for the convenience of the court, and the furtherance of justice 
 
 (d) l!ex V. Serjeant, R. & JI. X. P. ]!. 
 3r)2. ]]iit it is not necessary, it sliould 
 seem, that there shouhl bc/o;rc employed 
 in order to make the husband or wife eoni- 
 ]>etent. In the ease of the 'Wakefields 
 before mentioned for abduction, Ilullock, 
 ]?., was of that opinion, and he mentioned 
 that he had seen a report of the case of 
 liex r. Terry, tried before Gibbs, C. J., 
 as IJeeorder of l^ristol, where the wife 
 was held eompetcTit, and that no force 
 was used in the abduction in that case. 
 
 (f) Keeve v. "Wood, 10 Cox, C. C. 58. 
 
 (/) r.uii. N. r. 2S(;. ciib. Ev. 120. 
 
 (ff) 1 Hale, r. C. 301. 1 P.rown, 47. 
 (h) Campbell c. Twemlow, 1 Trice, SI. 
 Ter Richards, B., 1 Trice, 83. 
 (i) 1 ThiU. Ev. 69. 
 0') Wells r. Flet'her, 5 C. & T. 12. 
 
 Fislier, 1 31. & Eob. 
 
 , Youni;, 5 Cox, C. C. 206. 
 Chadwick, 11 Q. B. 173, 
 Beg. r. Blackburn, 6 Cox, 
 
 S. C. as ^YcllH 
 
 a-) Beg. V 
 See Beg. r. 
 ante, p. 270. 
 C. C. 333. 
 
 (I) Battliews r. Galindo, 4 Bingh. B. 
 010. Eeg. !-. Young, 2 Cox, C. C. 291, 
 Erie, J. S. P. 
 
 i,yn) B. & M. N. P. B. 354. 
 
 (h) The voire dire is, when it is prayed 
 upon a trial at law that a A\"itness maj' 
 (preriousl)' to his giving evidence in the 
 cause) be sworn to speak the truth (in old 
 French voire dire) whether he shall lose 
 by the matter in controvci-sy. Blount's 
 Law Diclionarv. 
 
 {0) Turner »'. Pearte. 1 T. B. 710.
 
 CHAP. V. § viT.] Comjoetenci/ of Witnesses. (527 
 
 (as the incompetency may not at first be suspected), the rule is 
 now so far relaxed that if it is discovered during any part of the 
 witness's examination, or even after his cross-examination, that lie 
 is incompetent, the objection may be taken, and his evidence will 
 be struck out. (p) But it seems that the objection comes too late 
 after the witness has left the box ; (q) and it has been held tliat 
 after a witness has been dismissed without any objection to liis 
 competency, it is not allowable to call a witness to prove his 
 incompetency, (r) With respect, however, to the power of question- 
 ing a witness for the purpose of discovering his incompetency, tliere 
 is still a material difference, which Avill presently be pointed out, 
 between an examination on the voire dire and one after the witness 
 has been sworn in chief 
 
 The party against whom a Avitness is called may examine liiin '"■>"" to he 
 respecting his competency on the voire dire, or may call another '^"I'P'""'*''- 
 witness and produce other evidence in support of the objection, (.s) 
 The old rule is said to have been, (t) that if the witness were ex- 
 amined by the opposite party as to the fact of the objection, and 
 denied it upon his oath, the party would not be at liberty to call 
 afterwards another witness to prove it, in order to repel him fiom 
 giving evidence, unless the other side acquiesced. But the 
 modern and more convenient practice seems to be, that if the fact 
 of incompetency is satisfactorily proved, the witness will be in- 
 competent, although he may have ventured to deny it on the voire 
 dire, (v) 
 
 It is now, however, clearly settled that, where a question arises wiierc .-» qucf- 
 
 tioii is nii.-C'l 
 
 (;)) Jaeol).s?'. Lcylmiini, 11 M. & W. 
 08.5. 1 Phill. Ev. 153. Tiinicr v. Pcartc, 
 1 T. i;. 720. Howell V. Lock, 2 C'ampl). 
 15. Stone, r. Blackburn, 1 Esp. 37. Pe- 
 rigal V. Nicholson, 'Wi.^htw. G4. But 
 where upon a trial Ibr high treason it 
 n)>])eared, after a witni'ss had been exa- 
 mined for the Crown, without objection 
 on the part of the prisoner, that \w had 
 lioeuniisdeseribed in the list of witnesses, 
 which is r(>(|uired by the 7 Ann. e. 21, 
 s. 11, to be given to the ])risoner jirevious 
 to his trial, the Court would not ]>erniit 
 the evidence of the witness to be struck 
 out ; but said, the oljjection ought to 
 have been taken in the fust instance ; 
 otherwise a party might take tlie t'iianee 
 of getting (ividence which lie liked, or, 
 if he disliked tiic testimony, lie might 
 liien get rid of it on tln^ ground of mis- 
 descri]>tion. Kcx v. Watson, 2 Stark. 
 N. P. C. 158. And u])on this ground, 
 Mr. Starkie expressed his o]tinion tliat a 
 party who was cognizant of tlie interest of 
 a witness at tlie time he was called, was 
 liound to make his objection in (be first 
 instance. 1 Stark. Ev. 137 ; and see 1 
 riiill. Ev. ir.4, note (3), ami Hartshornc 
 ('. Watson, r> Bing. N. C. 477. 
 
 {rj) 1 Phill. Ev. 153. Beeching r. 
 Cower, Holt, N. P. K. 314. 
 
 (?•) Dewdney r. Palmei'. 4 M. k W. 
 GG4. 
 
 (s) Per Hullock, P.., Wakcfields" ca.se, 
 p. 157. 2 Lew. 27!'. 
 
 (t) By Lordllardwiike in Lord Lovnt's 
 
 case, 9 St. Tr. 047. Sec also th<' obser- 
 vations of Parker, C. .1., in Hex t: ilus- 
 cot, 10 Mod. 1!'3, in wliieji ca.sc it was 
 held that in criminal cases tliere could be 
 an examination on the ruirc t/iir. 
 
 (u) 1 riiill. Ev. 154. In several cases 
 it seems to liave been considered that it 
 is in the discretion of the judge wlietlier 
 other evidence should be called to support 
 the objection before the witness is ex- 
 amined. And if the judge refuse to allow 
 it to be tlicn given, it seems that it m:iy 
 be given as ]iart of the case of the party 
 raising the objection, ami if itsnjiport the 
 olijection, then the evidence of tin' witness 
 objected to mav be struck out of the notes, 
 liex r. Wakefi.dd, note (<i\ M. !i Malk. 
 I!t7. Jones r. Port, .M. fc Malk. l!»'i. In 
 this ea^e the ipiestion was whether the 
 defendant's examination taken uinler ii 
 conimi.ssion of ])anknipt was ndinissible, 
 and Lord 'I'entenlen, C. .F., n-fiised t<> 
 allow evidence to be given tending to 
 show that from the mode of takini; it, 
 and the state of the difendant's health, it 
 was inadmissible before tlie rxaminatinii 
 was read, but held that it might Im- re- 
 ceived in the tlefendnnt's ca.se, ntnl 
 if the objection wa.s supiM>rte4l, the evi- 
 denic might be struck out. It eert«iuly, 
 however, is much tlio more convenient 
 course, as well for (lie juirpose of saving 
 time, as (o jireven( the jury from Ixing 
 intluenced liy inadini.Hsible evidence, to 
 receive the evidence befoiv the eXBUiiiia- 
 tiou of the witm's-s. C. S. f?.
 
 r.i2s 
 
 ftH to the rom- 
 j)ctency of ii 
 witiiCHH, all tlio 
 cvulciico oil 
 both niiU"H 
 should )io 
 lieaitl at oiioo 
 by the court. 
 
 ( ff l']l'l(l('liri'. 
 
 [iJOOK VI. 
 
 Where the 
 question ai'ises 
 after a part 
 examiuation 
 of the witncts. 
 
 as to tlie conipt'tciicy of a wiiiics.s Ijoforc lie is Kwoni, tlio proper 
 courso is to receive all the evidence upon the (piestion, both to im- 
 peach the competency of the witness and in support of it, hefore 
 he is allowed to give any evidence. Thus in a ca.se at York, 
 \vliere a witness was ohjccted to by a prisoner as incompetent on 
 the "-round that he was insane, and the (question arose ns to the 
 mode to be adopted under such circumstances ; Parke, B., con- 
 sulted the judt^a's upon it before he went the circuit, and they 
 were of opinion that it ought to be tried on the voire dire, and 
 evidence admitted both on the part of the prisoner and on the part 
 of the pro.sccution to impeach tlic competency of the witness, and 
 in support of it;(i') and it has since been held that where an 
 objection is raisod to the competency of a witness on the ground 
 that he is insane, it is for the court to decide whether such person 
 has the sen.se of religion on his mind, and whether he understands 
 the nature and sanction of an oath ; and, in order to determine 
 these questions, he may be examined and cross-examined, and 
 witnesses on both sides may be examined, in order to found and 
 to meet the objection to bis competency before he himself is 
 sworn, (w) If the court decides that he is a competent witness, 
 'then the jury are to decide on the credibility and weight of his 
 evidence.' (x) 
 
 In one case, however, it has been intimated that in every 
 case where any question is raised about the competency of a wit- 
 ness after he has been sworn and partly examined, there ought 
 properly to be an inquiry made of the witness, who should be 
 sworn ' to make true answer to all such questions as the court 
 should demand of him ; ' in other words, that an examination on 
 the voire dire may be instituted at any period of the examina- 
 tion, (y) 
 
 ((•) Aiioiiyiiious, statfJ liy Parke, !»., 
 in AttoriK'3'-Gi.'in'ral v. Hitthuock, 1 
 Exeh. K, *91, and also in Bartk'tt v. 
 Smith, 11 M. & W. 483. 
 
 (v) l!rg. r. Hill, 2 Den. ('. C. 251. 
 
 (X) Per Lord Campbell, ibid. 
 
 (?/) Per Lord Abingcr, C. B., and 
 RolVe, B. Jacobs r. Leybourn, 11 M. & 
 W. 685. In Cleave r. Jones, Hereford 
 Sum. Ass. 1849, I^ISS. C. S. G., the 
 ]ilaintitrs coun.si'l, in order to take the 
 ease out of the Statute of Limitations, 
 tendered an aejount in the defendant's 
 liandwriting; and Eolfe, B., held that 
 the defendant's eoun.sel might at once 
 ])at iu two letters written by the ]tlain- 
 titf to the defendant, in order to show 
 that the account was a conlidential com- 
 munication by the defendant to the plain- 
 tilf as her attorney. So on a subsequent 
 trial of the same cause, when the same 
 account was ti'udered in evidence, the 
 eounselfor the defendant claimed the right 
 to iuterpo.-^e, and put in a letter of the 
 plaintilf, and to call a witness to show that 
 the account was written out and sent by the 
 defendant to the iilaintilf in ionset[nence 
 of such letter; and Erie, J., held that this 
 might be done ; and upon the defendant's 
 counsel insisting that the witness ought 
 lo be sworn on the i-oirc dire, Erie, J., 
 
 held that that was the proper course, as 
 the c[uestion whether the account was a 
 privileged communication was to be de- 
 tennined by himself ; and the letter and 
 evidence of the witness were received, 
 and the account rejected as a privileged 
 communication. Cleave r. Jones, Hereford 
 Sum. Ass. 1851 ; and the Court of Ex- 
 chequer held that this ruling was correct. 
 7 Exch. K. 421. In an action by tlic 
 l)ayee against the maker of a promissory 
 note, payable two months after date, 
 with a plea that the defendant did not 
 make the note, the defendant's signature 
 to the note was proved ; but the word 
 ' tico ' was evidently written on an era- 
 sure. Erie, J., said that it was incumbent 
 on the plaintilf to explain this, and a wit- 
 ness was called for the plaintilf to jirove 
 that the note was in the same state when 
 it was signed by the defendant. Before 
 the note was read, it was proposed, on the 
 part of the defendant, to call witnesses to 
 ]irovc that, when the note was signed by 
 the defendant, it was payable ' three ' 
 months after date ; it was objected that 
 this evidence should be given as part 
 of tiie defendant's case ; but Erie, J., at 
 once received the evidence of two wit- 
 nesses for the defendant, and UY<on their 
 evidence decided that the alteration
 
 CHAP. V. § VII.] Comi^ctency of Witnesses. 
 
 On a prosecution for rape it appeared that the prosecutrix was 
 deaf and dumb ; and her father, who was sworn to interpret her 
 evidence, said that he believed her to be ignorant of the nature of 
 an oath. An expert, however, came, and from his report to the 
 court the prosecutrix was sworn, and her evidence taken down as 
 interpreted by the expert. In the course of her examination it 
 became apparent that she did not understand the (questions, and 
 that her answers could not be relied upon. The judo-e directed her 
 to stand down, and struck out her evidence from the case : Held, 
 that although the prosecutrix had been sworn, the judge acteil 
 rightly in striking out and withdrawing her evidence from the 
 
 Every question respecting the competency of a witness is to be 
 determined by the court and not by the jury. («■/) 
 
 An examination on the voire dire is allowed to be conducted 
 without strict regard to the general rule of evidence, which requires 
 the best possible proof of a fact, and admits no other. Thus a wit- 
 ness may be examined as to the contents of a written document 
 without a notice to produce ; {h) for the party objecting could not 
 know previously that the witness would be called, and conse([uontly 
 might not be prepared with the best evidence to establish his 
 objection, (c) And the same relaxation is allowed in removinf 
 an objection of incompetency as in raising it. Thus where in 
 an action brought by a chartered company, a witness for the 
 plaintiffs admitted on the voire dire that he had been a freeman 
 of the company, but added that he was then disfranchised ; L(tnl 
 Kenyon ruled that it was not necessary to prove the disfranchise- 
 ment by the regular entry in the company's books, and tliat the 
 witness was competent, [d) So where, before the (J & 7 Vict. c. .s.'), 
 a witness was objected to as next of kin in an actiun by an 
 
 029 
 
 The question 
 is for the 
 court. 
 
 Mode of ex- 
 amination on 
 rolvc (lire. 
 
 was not accounted for to his satisfaction. 
 Painter v. Hill, 2 C. & K. 92i, note 
 And where a witness for a plaintiir, 
 being about to state tl\e contents of a 
 letter, a letter was |)ut in his hands by the 
 defendant's counsel, and he did not admit 
 it to be the same; and tlicjud^c held tiiat 
 the defendant could not at that slafjo of 
 the cause give evidence that it was the 
 original ; the Court held that this was er- 
 roneous, and that the judge was bound at 
 once to hear the evidence on both sides, 
 and decide whether the document was 
 the original ; and i'arke, I!., said, 'It is 
 now well settled that all these pndindnary 
 questions, on which the recei)tion of evi- 
 dence depends, ought not to be subndlted 
 to the jury, but must be decided by the 
 judge 'hinis(df.' P>oyle r. "Wiseman, 11 
 Exch. li. 360 ; and see Campbell's case, 
 ante, p. 358. 
 
 (z) 1\. r. Whiteliead, 10 Co.\, C. C. 
 234. 
 
 (a) lieg. r. Hill, 2 Den. C. C. 251, and 
 see supra, note {y). 
 
 {b) Howell v. Locke, 2 Canijib. L". 
 
 (c) See Butler i: Carver, 2 Stark. \l. 
 434. On the passage in the text being 
 cited in Macdonnell r. Kvans, 11 C. 15. 
 937, Maule, J,, said, ' In many cases wit- 
 
 nesses are called wlnun the op|)osite jiarly 
 has no reason to expect to see ; the reason, 
 therefore, given in that book isjiot a good 
 one. An examination on tlic voire ilirc 
 is for the ])Uip()se of establisliing some- 
 thing of which the court is to be the 
 judge ;ind not the jury. It may well In-, 
 therefore, that the rule (liere is nut mt 
 eX( hisive as in the ease of an examina- 
 tion going to a jury.' Kitlier tlie ' no ' 
 or ' not ' in italics seems inserted liy mis- 
 take in the report. 
 
 ((/) lUilchers' Company r. .lones, 1 Ksji. 
 1(52. See also liotliam r. Swinghr, 1 Ksp. 
 1(54. S. C. Peake, N. 1'. C. 21i», wliere 
 before 6 & 7 Viet. c. 85, the witness was 
 allowed to remove anobjcctinn ofinten'.st 
 raised on the roire dire by liis own state- 
 ment that lie had bveomc a bankrupt, 
 and his estate had been a.ssigneil. See 
 also h'cx e. Cisburn. 15 I-Ji.st, 57. So 
 wheiv a bankrupt, liefoiv the alHive Act, 
 called as a witness, stateti on the iWr«t 
 dirr that he had obtaiiieil his cerliricatc 
 and released his a.Hsignees ; Park, .1. ^\. 
 J., held him comjwtent, without jiroluc- 
 tion of the ii-lea.se. Carli.slo r. rlaily. 1 
 C. & P. 234. See also Buutcr r. "SVarre, 
 1 D. & C. (589.
 
 630 Of Kvldencc. [book vi. 
 
 ailiiiiiii.^tr.il"ij»iil oil rc-cxjimiii;itii)ii .■msworcd tliaL lie 1 1 ad released 
 all liis iiitcicst, this was IkM l)y J^onl Ellenboroii;,di to remove the 
 objection, {e) 
 
 But it is only on the voire ilirei\\i.\i the general rules of evidence 
 arc thus relaxed ; for although objections to the competency of a 
 ■witness may now be made at any stage of the trial, yet they arc 
 not to be attended with the privileges of an examination upon 
 the voire dire. (/) So where a party, who calls a witness, attempts 
 to remove the objection by otlicr independent proof, and not on 
 the voire dire, he will then be subject to all the general rules of 
 evidence, (g) So where the objection is not raised on the voire 
 (lire, but appears in evidence in any other manner, the other party 
 in answering it is bound by the usual rules of evidence. (A) 
 .Tiulge or juiy It is no exception against a person giving evidence for or against 
 competent. ^ prisoner, that he is one of the judges or jurors who is to try 
 him. (i) And in the case of Hacker, two of the persons in the 
 commission for the trial came otf from the bench, and were swoni, 
 and gave evidence, and did not go up to the bench again during 
 his trial, (j) 
 
 (e) Ingram i: Dade, MS. 1 riiill. Ev. ((j) Corking c. .lariard, 1 Campb. .'i7. 
 
 155. Liinuiss v. Row, 10 A. & E. 606, (h) Botliaiii r. Swingler, 1 Esp. N. I', 
 
 overruling Gootlhay v. Hendry, M. & C. 165, by Lord Kenyon ; Imt see Cleave 
 
 ilalk. 3iy, and a case in a note, ibid. r. Jones, a/ite, p. 628, note {>j). 
 321. Sec 1 Phill. Ev. 156. (i) 2 Hawk. P. C. c. 46, s. 83. 
 
 (/) Howell r. Lock, 2 Campb. M. (j) Ibid.
 
 G31 
 
 xiDDENDA ET COERIGENDA 
 
 VOLUME I. 
 
 The 22 ct 23 Vict. c. 17, s. 1, Jocs not apply to the oflx:nce 'of 'at- Page 3. 
 tempting to obtain money or other property by false pretences.' /,', v 
 £urion, 13 Cox, C. C. 71. 
 
 On the trial of an indictment for robbery at the Kent assizes, the Tagc ".. 
 offence appeared to have been committed in Surrey, at a distance of about 
 320 yards from the boundary of Kent and Surrey, as measured l>y a 
 direct line, but at considerably more than 500 yards by tlie nearest road ; 
 and Parke, B., held that tlie distance must be measured iu the direct line, 
 and therefore the prisoner was triable in Kent. AVy. v. ]V<>oi/, ."» Jurist, 
 225 ; see lloifjct v. Cole, 42 L. J. Ex. 8. 
 
 A hulk retaining" the general ap])oiutments of a ship, registered as a Page 17. 
 British shi}), and hoisting the British ensign, although only used as a 
 floating warehouse, is jnimd facu' suHiciently a British «hip to be within 
 the 17 tt IS Vict. c. 2G7, and a crime committed thereon is within the 
 jurisdiction of the Aduiirally. 7.'. v. ArmdrDiKj, 13 Cox, C. C. 181, 
 Archibald, J. 
 
 The 37 & 38 Vict. c. 9G (the Statute Law Revision Act, 1871), repeals Tugc 31. 
 3 & 4 Vict. 0. Ill, s. 2, in part, i.e., from 'shall steal' to 'corporation 
 or.' Sec 31 k 32 Vict. c. IIG, s. 1, vol. 2, Larceny. 
 
 The Consolidation Acts as to punishment of principals in tlie second r.igo.>>l. 
 degree and accessories arc more correctly and at greater length set out, 
 vol. I, p. 185. 
 
 Add to note (6) — Trover for conversion of goods supplied by the plain- I'iisc 83. 
 tiffs to one Blcnkarn. Blenkarn had taken jjremises at 37, Wootl .Street, 
 and in ordering tlie goods had signed his name in such a way as to iiuluco 
 the iilaiutifls to believe that he was a member of the well-known firm of 
 Blenkiron and Co., AYood Street. For this fraud he was afterwanls trictl 
 and convicted of obtaining goods by false j)retenccs. Before his convic- 
 tion, however, the defendants had lioiRstly liougiit the got.ds in (|UOHtioii 
 from him, and had sold them again : — Held, tliat tbo ilefendants wore 
 entitled to judgment. The contract of the plaintills was with lilcukurn, 
 and their intention being to part with the goods to their corresiiondcnt 
 at 37, Wood Street, the projierty ]xissod under it to him. Such con- 
 tract, though voidable so long as the goods were in liis hands, could not 
 be avoided after the goods had been sold io w l>i>na jidf pmvlnuscr ft»r 
 value, so as to entitle tiie ])laintifls to recover them from such luuvha-ser. 
 By virtue of 24 &, 2-5 Vict. c. 9G, s. K^O, on the conviction i)f Blcnkarn, 
 the property in the goods or [troceeds revested in the plaint iiVs, but such 
 revesting did nt)t relate back to the jioriod previous to the conviction, 
 when the goods were in the defendants' pos.sos.sion, and therefore the 
 good title wliii.h tlu'v had ai-quired was not divested by the ."jubsctiuent
 
 0;52 Addenda, Vohiiuc I. 
 
 convict lull, HO US t(i iniikf (licm liiildo to bo Kiicd l>y tlic ijliiintifFs for the 
 j^oikIs. Tlio iiiter|ii-et:ition clause as to 'proitcrty' in sect. 1 of '1^ k. '2-'t 
 Vict. c. nCi, is not to \>c read into sect. lOd, so as to render the defendants 
 liable to restore to the ))Iaintili's the proceeds of their sale of the goods. 
 Liiufsai/ V. Cnndi/, i^> L. J. Q. J>. .'581. 
 
 I'liKc 90. J^y- 1 ^ -•"' Vict. c. 97, s. 77 (Malicious Injuries to Proi)crty'Aet),the Court 
 
 before which any indictable misdemeanor against this Act shall Ijc i>rose- 
 cuted or tried may allow the costs of the pro.secution in the same manner 
 as in cases of felony, and every order for the ])ayment of such costs shall 
 bo made out, and the sum of money mentioned therein paid and repaid, 
 upon the same terms and in the same manner in all respects as in cases 
 of felony. 
 
 Tiigc 13i). A j)ersou deaf and dumb from four years of age was indicted f(;r lar- 
 
 ceny from the ]»crson, and not answering when called upon to plead, the 
 jury found the piisoner ' mute by the visitation of God.' The Court then 
 ordered a plea of 'not guilty' to be entered, and the trial to proceed. A 
 relation of the j)erson, who could in some degree communicate with the 
 jjrisoiier by means of signs, was sworn to interpret the nature of the pro- 
 ceedings and the evidence, and the Court assigned counsel to the pri- 
 soner. At the conclusion of the case, after the summing up of the pre- 
 siding judge, the jury found the prisoner guilty, but in answer to a question 
 left to them in the summing up found that the prisoner * was not capable 
 of understanding, and, as a fact, had not understood the nature of the 
 j)rooecdings ' : — Held, that the above finding shewed that the prisoner 
 was at the time of the trial of non-sane mind ; therefore, that the Court 
 were wrong in entering a plea of not guilty, and in allowing the trial to 
 proceed. That they ought to have discharged the jury, and ordered the 
 prisoner to be detained during Her ^lajesty's i^leasure, under 39 tt 40 
 Geo. 3, c. 94, s. 2 j and the conviction was quashed. B. v. Bern/, 4") L. 
 J. M. C. 123. 
 
 Ta^e 270 ct The 16 & 17 Vict. c. 107, except certain sections, is repealed by the 
 
 seq. 39 k 40 Vict, c, 36. See s. 288 of this Act, post, p. 701. 
 
 Pa"c 319 The 17 ik 18 Vict. c. 102, so far as it is not repealed, and certain en- 
 
 actments amending the same, are continued until the 31st December, 
 1877, by the 39 it 40 Vict. c. 69. 
 
 Ta^e 330. O^i ^^^^ trial of an indictment for fraudulently placing ballot papere in 
 
 a ballot box at a municipal election contrary to 35 & 36 Vict. c. 33, s. 3, 
 a sealed packet was produced under the order of a county com-t judge, 
 obtained under 3o tt 36 Vict. c. 33, sched. 1, rules 40, 41, part ii., r. 64, 
 and the coimterfoils and marked register and voting papers produced 
 therefrom were given in evidence, and the face of the voting papci-s 
 inspected : Held, that the evidence was properly admitted. Ii. v. 
 Beardmll, 4-> L. J. ]\I. C, 1-37. 
 
 Ta'^e 405. L. was mortgagee in fee of a dwelling house, the possession being left 
 
 in the mortgagor. The mortgagor while in possession let the house to 
 T. for a goods store. It was otherwise unoccupied. Early one morning, 
 during the continuance of T.'s tenancy, L., without giving any notice to 
 the mortgagor or to T., went to the house, in company with a carpenter 
 and another man. The carpenter opened the front door, and the other 
 man entered the house. L. and the carpenter remained ou^the dooi-step, 
 the latter being em2)loyed in putting on a new lock. While this was 
 happening, T., and his brother-in-law, W., with several other pei-sons came 
 up, and T. and W. climbed into the house through a window, and after 
 a slight struggle expelled L. and his men from the premises. L. indicted 
 T. and W. and others for a forcible entry, riot, aftray, and assault. T. 
 and W. were tried and acquitted. They defended themselves by the same 
 solicitor, and incurred joint costs. T. it W. then brought an action 
 against L. for malicious prosecution, and obtained a verdict, subject to
 
 Addenda, Volume I. G;j3 
 
 leave to move to enter a verdict for L., upon the grounds, first, that there 
 was no reasonable and probable cause for the prosecution ; second, that 
 there was no evidence of malice ; third, that there was no joint cause of 
 action. The Court of Exchequer having set aside the verdict, and 
 entered a verdict for L., and ^ the Court of Exchequer Chamber liaving 
 reversed the decision of the Court of Exchequer : — Held, reversing the do° 
 cision of the Court of Exchequer Chamber, that there was reasonable and 
 probable cause for the prosecution, inasmuch as the flxcts shewed that T. 
 and W. were, at the time of the expulsion of L., disturbing a possession 
 which had been lawfully acquired by him. Lows v. Telford, \o L J Ex 
 613. 
 
 As to a body in whom the guardianship of the highway is vested having I'age 430. 
 the right of removing obstructions in the highway, sec JUuj&liaw v. 'lite 
 Boston Local Board of Health, 45 L. J. Chanc. 2GU, 
 
 A. let to B. a field for the purpose of its being worked as a lime quarry. Page 141. 
 The ordinary way of getting the limestone was by means of blasting, and 
 
 A. authorised the quarrying of the stone and the erection of lime kilns 
 in the field. A nuisance was caused to the adjoining occupier by the 
 blasting and by the smoke from the kilns, and he brought an action 
 against both A. and B. On dcmm-rer by A. : — Held, that he, the landlord, 
 was liable, although the nuisance was actually created by the act of his 
 tenant, because the terms of the demise were an authority from hnn to 
 
 B. to create the nuisance, which was, therefore, the necessary consequence 
 of the mode of occupation conteni])lated in the demise. Harris v. James, 
 45 L. J. Q. B. 545 ; et pe)- Blackl)urn, J. : — 'In the present case, as I under- 
 stand the averments, the field was let for the very purpose and object of 
 being worked as a lime quarrj^ and for erecting lime kilns and burning 
 lime. When, then, it is stated as a fixct that the injury complained of 
 arose from the natural and necessary consequence of carrying out this 
 object, and as the result of lime getting and lime burning, then I think 
 we must say that the landlord authorised the lime burning and tiie nuis- 
 ance arising from it as being the necessary consequence of letting the 
 field in the manner and with the objects described. In lu'rh v. JJastcrjield, 
 4 C. B. 483, the Court of Common Picas came to a conclusion of fact which 
 authorised their conclusion upon the case. There, a former occupier of 
 the premises where the chimney was used to burn coke in the fire, and 
 caused no smoke which could be at all injurious to the ])laiutilf ; and the 
 judgment i)roceeded on that ground, as is evident from the following i)a.s- 
 sage : — ' It being therefore quite jjossiblo for the tenant to occupy tho 
 shop without making fires, and (piito ojitional on his part to make them 
 or not, or to make them with certain times excoj)tcd, so as not to annoy 
 the plaintiff, or in such a manner as not to create any cpiantity of smoko 
 that could be deemed a nuisance, it seems impossible to say that tla* 
 tenant was in any sense the servant or agent of the defendant, in doing 
 the acts complained of. The utmost that can be imputed to the defen- 
 dant is, that he enabled the tenant to make fires if he pleased." Assuming 
 that the evidence really did establish the facts which the Conunon PIcjih 
 thought it did, and if it was not the necessary consctpiencc of burning fires 
 in the chinmey that there should be smoke, I have no fault to find with 
 the decision ; but then, tliis case is not tlie same, ltecau.se the fifth para- 
 graph finds that the injury arising from the smoke and va]>our is tho 
 natural and necessary conse(pience of the use of the lautl, and the 
 plaintiff must therefore have judgment ujion the demurrer to tliat para- 
 graph.' 
 
 A public highway ran along the slope of a hill, l)cncatii which was a p.igo -l.'.O. 
 valley, the slojje being at right angles to tlie valley, and very precipitous. 
 A landslip of considerable magnitude occurred on the slope, and about 
 252 yards of the highway were carried oft' into the valley below, aud its
 
 C34 Addenda, ViAunuj 1. 
 
 \>\i\GO boiiig (illfil up witli Hl(jncs and other debris, no truce of the old 
 metalled road remained, but llic line of it was known an<l admitted. An 
 euj^inecr, who had inK|tccted the locus in (/uo, repoitcd that it was prac- 
 tical)le to form u permanent and jjassahlc road along the whole track, 
 and of a similar character, at a moderate outlay. The (Jourt had jiowcr 
 
 Pngp 171. <o draw inferences of fact : — Held, that there was no such total destruc- 
 
 tion of the road as woidd relieve the j^arish from liability to repair. The 
 Quiru V, Ilormea (23 L. J. K, M. C. Ij'^d), distinguished. 7i'. v. Greenhow, 
 Inhah. o/{ii> L.J. M. C, m.) 
 
 Defendant had a lamp projecting from his premises over a footway in 
 a street. It fell on the jdaintiff, who was passing inidcmeath, and 
 injured her. Defendant had shortly before cmjdoyed a competent ])er.son, 
 C, to put the lamp in good repair, but at the time it fell it was, though 
 not to his knowledge, in a dangerous and decayed state. The jmy found 
 there was no personal negligence in the defendant, but there was negli- 
 gence in C. : — Held, by Lush, J., and Quain, J., that it was the absolute 
 duty of the defendant, as occupier of the prcmi.ses having a lamp in such 
 a position, to prevent its becoming dangerous to the public ; that if, in 
 fact, it did become dangerous, it was a nuisance, and for any injniy caused 
 by such nuisance defendant Avas liable ; and that he could not shift the 
 liability arising from such a duty from himself by having employed a 
 competent person to do the necessary repairs. By Blackburn, J., ' that 
 as the defendant in this case had express knowledge shortly before the 
 injury of the lamp ueeding repair, he was then bound to put it into 
 reasonable repair ; and was liable for the consequences of its not being in 
 repair, arising from the breach of duty in the person, however competent, 
 whom he had employed ; it was therefore not necessary to decide, and 
 qiKcre, whether, if the danger arose from a latent defect, or from the act 
 of a wrong doer without defendant's knowledge, he would be liable for an 
 injury so happening.' Tarry v, Asldon, 4-3 L. J. Q. B. 260. 
 
 Page 5G2. By the ' Epping Forest Amendment Act, 1872,' sect, o, the Epping 
 
 Forest commissioners may make orders jjrohibitiug, imtil after their final 
 report, any enclosure or waste of laud within the forest, subject in their 
 judgment to any forestal or common rights. The commissioners made a 
 general order prohibiting all persons from committing waste upon a piece 
 of land described until the final report, or until further order ; all persons 
 affected to bo at liberty to apply to them as there might be occasion. 
 The defendant applied to the commissioners by counsel as a person afl'ec- 
 ted, but they refused to enter into the question raised. The defendant 
 was convicted upon an indictment moved by certiorari for breach of this 
 order : — Held, upon a case stated, that the order and the indictment were 
 good, 7?. V. Walker, 13 Cox, C, C. 94. 
 
 rage iA,. ^^j ^^ j^Q^^ {h)—E. v. Ilandleij, 13 Cox, C. C. 79. 
 
 Page /21. Q .^..^g summoned for trespassing in pursuit of coneys. He absconded, 
 
 and a waiTant was issued for his apprehension, addressed to all peace 
 officers in the county of Devon. A constable in the county police force 
 endeavoured to arrest C. at a time when he had not the warrant in his 
 possession. C, resisted and assaulted the constable : — Held, ' that as the 
 oftence with which C. was charged was not felony, C. Avas justified in re- 
 sisting the attempt of the constable to arrest him without having the 
 warrant in his possession,' C<xl \. Cabe, 45 L. J, ^\. C. 101 ; 13 Cox, C, 
 C. 202.
 
 G35 
 
 ADDENDA ET COERIGENDA 
 
 VOLUME IL 
 
 Add to note (?•) — The following document was held to be a valuable I'^'o'' -^1- 
 security within this section : 'London, July 19, 1875, I hereby agree to 
 pay you 100/. sterling, on the the 27th instant, to prevent any action 
 againsi; me.' A', v. John, 13 Cox, C. C. 100, Brett, J. 
 
 Whilst in treaty with Messrs. G. and P. for the sale and transfer of a Page 390. 
 public-house license, the ])risonei' was required by them to give security fur 
 the purchase money before they would assist him in procuring a transfer. 
 To enable him to give the required security, the prosecutor accepted three 
 bills of exchange drawn upon him by the prisoner, which the latter was 
 to deposit with Messrs. G. and P. by way of security, and not negotiate 
 or use for any other purpose, and if the transfer was not cflccted, was to 
 return them to the prosecutor. The prisoner, instead of depositing tliem 
 with Messrs. G. and P., converted two of them to his own use : — HeUl, that 
 the prisoner was not an 'agent' within the Toth sect., nor a 'bailee' 
 ■within the 3rd sect, of 24 & 25 Vict. c. 90, and could not be convicted 
 luider either. L'. v. Cosser, 13 Cox, C. C. 187, Bramwell, 15. 
 
 The IG & 17 Vict. c. 107, s. 95, is repealed by the 39 .*c 10 Vict. IX-c 4( 2. 
 c. 3G, noticed post, p. G92. 
 
 See 39 & 40 Vict. c. 3G, 'The Customs Consolidation Act, 1870,' Pasc 7S«J. 
 noticed post, p. 092. 
 
 Tlic G & 7 Will. 4, c. 85, s. 38, is repealed by the 37 it 3S Vict. c. 35. r:i{,'<! sil. 
 See vol. 3, p. 28. 
 
 Seventh line from tup, insert 'c '.'7,' instra.l i.|' • «■. I 7." r.u'i' ojr.
 
 C30 
 
 ADDENDA TO VOLUME III- 
 
 r.ige n.'i. The defendants were indicted, as directors and promoters of a certain 
 
 company called tlic Enpion Fuel and Gas Company, Limited, for con- 
 spiring to induce the committee of the Stock Exchange to order a quo- 
 tation of the shares of the company in their official list, ' and thereby to 
 induce and persuade divers of the liege subjects of our Lady the Queen, 
 who should thereafter buy and sell the shares of the said company, to 
 believe that the said company was duly formed and coustifuted, and had 
 in all respects complied with the rules and regulations of the .... 
 said Stock Exchange, so as to entitle the said company to have their 
 shares quoted in the official list of the said Stock Exchange ; — Held, 
 that the indictment disclosed an indictable offence, The King v. De 
 Berenrjer discussed and followed. Jl. v. Aqnmill^i^:) L. J. M. C. 129.
 
 637 
 
 APPENDIX OF STATUTES. 
 
 7 d: 8 Geo. i, c. 28. 
 
 uin Act for fartlur iiDprovlng the Administration of Justice in Criminal 
 Cases in England. 
 
 [2\stJune, 1827.] 
 ' Whereas trials for criminal offences in that part of the United Kinj;- 
 dom called England are attended with some forms which frequently 
 impede the due administration of justice, and it is tliereforo expedient 
 to abolish such forms, and also to abolish the benefit of cleriry, and to 
 make better provision for the punishment of offenders in certain cases : ' 
 be it therefore enacted by, &c., that if any person, not having privilege 
 of peerage, being -arraigned upon any indictment for treason, felony, or 
 piracy, shall plead thereto a plea of ' Not guilty,' he shall by such plea, 
 without any further form, be deemed to have put himself upon the 
 country fur trial; and the court shall, in the usual manner, order a jury 
 for the trial of such person accordingly. 
 
 2. If any person, being arraigned upon or charged with any indict- 
 ment or information for treason, felony, piracy, or misdemeanor, shall 
 stand mute of malice, or will not answer directly to the indictment or 
 information, in every such case it shall be lawful for the court, if it shall 
 so think fit, to order the proper officer to enter a ]ilea of ' Not guilty ' 
 on behalf of such jierson ; and the plea so entered shall have the same 
 force and effect as if sucli ])erson had actually pleaded the same. 
 
 3. If any person, indicted for any treason, felony, or piracy, shall 
 challenge peremptorily a greater number of the men returned to be of 
 the jury than such ])erson is entitled by law so to challenge in any of the 
 said cases, every peremptory challenge beyond the number allowed by 
 law in any of the said cases shall be entirely void, and the trial of such 
 l^ei son shall proceed as if uo such challenge had been made. 
 
 4. No plea setting forth any attainder shall be pleaded in bar of any 
 indictment, unless the attainder be for the same oifenco as that charged 
 in the indictment. 
 
 i). Where any person shall be indicted for treason or felony, the jury 
 empanelled to try such person shall not lie cliai-ged to inquire concerning 
 his lands, tenements, or goods, nor wiiether he lied for such treason or 
 felony. 
 
 G. Benefit of clergy, with respect to persons convicted of felony, shall 
 be abolished ; but that nothing herein contained sliall jirevont the joinder 
 in any indictment of any counts which might have been joined before the 
 ])assing of this Act. 
 
 7. No person convicted of felony shall sutler death unless it be for 
 some felony which was excluded from the benefit of clergy before or on 
 the first day of the present session of Parliament, or which hath been 
 or shall be made punishable with death by some statute passed after 
 that dav. 
 
 A pica of ' Xot 
 guilty,* witli- 
 out more, sliall 
 jiiit the pri- 
 soner on his 
 trial by jury. 
 
 If he refuses 
 to plead, 
 court may 
 order a jdea of 
 ' Not guilty • 
 to be entered. 
 
 Every dial- 
 lengc beyond 
 the legal 
 number .shall 
 be void. 
 
 Att.iiiidcr of 
 .-mother crime 
 not pleadable. 
 
 .Tur)' shall not 
 ini|uire of 
 prisoner's 
 lands, &o. , nor 
 whether ho 
 fkil. 
 
 Hcnefit of 
 
 clergy 
 
 alM)li.shcd. 
 
 What felonies 
 only Mhall b<i 
 capital.
 
 G38 
 
 I'V.'Iitiiius nut 
 ('ii|iit:il jiuiiisli- 
 mIiIo iiiiilcr llio 
 Acts, if any 
 rclatin;,' 
 llicrrlo ; 
 iitlii'rwi.-,c 
 umlcr tills Act. 
 
 'J'lic rdUit may 
 miler lianl 
 liliour or 
 Military con- 
 lincnient as 
 part of tlio 
 .s'-'ntencc of 
 imprisonment. 
 
 runishmcnt 
 for a h:nl'sc- 
 iiucut felony. 
 
 Form of in- 
 <l:etmcnt for 
 the subsequent 
 felony. 
 
 What shall be 
 sufHeicnt 
 ]iroof of the 
 first eonvic- 
 tion. 
 
 rttering false 
 tortilioatc of 
 conviction. 
 
 \<lniin»lty 
 ireutcs. 
 
 Appendix of Statnten. 
 
 H. livery jicrson convicted of any felony, not punisliablc witli death, 
 sliiill 1)0 punished in the manner jire.serihed by tlic statute or statutes 
 specially I'elaf in*; to such felony ; and thiit every person convicted of any 
 felony, for which no j)unishiuent hath been or hereafter may be specially 
 ]irovided, shall be deemed to be punishable under this Act, and shall bo 
 liable, at the discretion of the court, to bo transported beyond the seas 
 for the term of seven years, or to be imprisoned for any term not exceed- 
 in',' two years ; and, if a male, to bo once, twice, or thrice publicly or 
 ]»rivately whii)pcd (if the court shall so thiidc fit), iu addition to such 
 imprisonment. 
 
 'J. And with regard to the jilace and mode of imprisonment for all 
 oflences punishal)le under this Act, be it enacted, that where any person 
 shall bo convicted of any otl'ence punishable under this Act, for which 
 imprisonment maybe awarded, it shall be lawful for the court to sentence 
 the ofl'ender to be impri.soned, or to be imprisoned and kept to hard 
 labour, in the common t^aol or house of correction, and also to direct that 
 the oli'ender shall be kept in solitary confinement for the whole or any 
 jtortion or portions of such imprisonment, or of such imprisonment with 
 hard labour as to the court iu its discretion shall seem meet. 
 
 10. See vol. i. p. 81. 
 
 11. And whereas it is expedient to provide for the more exemplary 
 punishment of oflbnders who commit felony after a previous conviction 
 for felon}*, whether such conviction shall have taken ])lace before or 
 after the commencement of this Act ; be it therefore enacted, that if any 
 person shall be convicted of any felony, not punishaljle with death, com- 
 mitted after a previous conviction for felony, such person shall, on such 
 subsequent conviction, be liable, at the discretion of the court, to be 
 transported beyond the seas for hfe, or for any term not less than seven 
 years, or to be imprisoned for any term not exceeding four years ; and, if 
 a male, to be once, twice, or thrice publicly or privately whipped (if the 
 court shall so think fit), in addition to such imprisonment; and in an in- 
 dictment for any such felony committed after a previous conviction for 
 felony, it shall bo sufficient to state that the offender was at a certain 
 time and place convicted of felou}-, without otherwise describing: the pre- 
 vious felony ; and a certificate containing the substance and effect oul}- 
 (omitting- the formal part) of the indictment and conviction for the pre- 
 vious felon)', purporting to be signed hy the clerk of the court, or other 
 officer having the custody of the records of the court where the offender 
 was first convicted, or by the deputy of such clei'k or officer (for which 
 certificate a fee of six shillings and eightpcuce, and no more, shall be de- 
 manded or taken), shall, upon jiroof of the identity of the person of the 
 offender, be sufficient evidence of the first conviction, without proof of 
 the signature or official character of the person appearing to have signed 
 the same ; and if any such clerk, officer, or deputy shall utter a false 
 certificate of any indictment and conviction for a previous felony, or if 
 any pei"son other than such clerk, officci-, or de]>uty shall sign any such 
 certificate as such clerk, officer, or deputy, or shall utter any such certifi- 
 cate with a false or counterfeit signature thereto, every such offender 
 shall be guilty of felony, and, being lawfully convicted thereof, shall bo 
 liable, at the discretion of the court, to be transported beyond the seas 
 for the term of seven j'oai's, or to be imprisoned for any term not exceed- 
 ing two years ; and, if a male, to be once, twice, or thrice publicly or 
 I'rivately whijipcd (if the court shall so think fit), in addition to such im- 
 prisonment. 
 
 12. All offences prosecuted in the High Court of Admiralty of England 
 shall, upon every first and subsequent conviction, be subject to the same 
 punishments, whether of death or otherwise, as if such offences had been 
 committed upon the land.
 
 1 Vict. c. «4. 
 
 G39 
 
 13. Where the King's Majesty shall be j^leased to extend his royal 
 niercy to any oftendcr convicted of any felony puuishaljle witli death or 
 otherwise, and by warrant under his royal sign manual, countersigned 
 by one of his principal secretaries of state, shall grant to such offender 
 either a free or a conditional pardon, the discharge of such offender out of 
 custody in the case of a free pardon, and the performance of the condi- 
 tion in the case of a conditional pardon, shall have the effect of a pardon 
 under the Great Seal for such offender, as to the felony for which such 
 pardon shall be so granted : provided always, that no free pardon, nor 
 any such discharge in consequence thereof, nor any conditional pardon, 
 nor the performance of the condition thereof in any of the cases aforesaid, 
 shall prevent or mitigate the punishment to which the offender might 
 otherwise be lawfully sentenced on a subsequent conviction for any felony 
 committed after the granting of any such pardon. 
 
 14. Wherever this or any other statute relating to any offence, whether 
 punishable upon indictment or sunnnary conviction, in describing or re- 
 ferring to the offence or the subject-matter on or with respect to which it 
 shall be committed, or the offender or the party affected or intended to 
 be affected by the offence, hath used or shall use words importing the sin- 
 gular number or the masculine gender only, yet the statute shall be 
 understood to include several matters as well as one matter, and several 
 persons as well as one person, and females as well as males, and bodies 
 corporate as well as individuals, unless it be otherwise specially provided, 
 or there be something in the subject or context repugnant to such con- 
 struction ; and wherever any forfeiture or penalty is payable to a party 
 aggrieved, it shall be payable to a body corporate in every case where 
 such body shall be the party aggrieved. 
 
 IG. NothiuiT herein contained shall extend to Scotland or Ireland. 
 
 1 Vict. c. 81, {fi). 
 
 1. Kecites the 2 ct 3 Will. 4, c. 5d, s. 19 [see vol. 2, p. 813], the 2 
 ct 3 Will. 4, c. 12-5, s. G4 [see vol. 2, p. 793], t!ie 5 & ij Will. 4, c. i:^, 
 s. 12 [see vol. 2, p. 793], and the 5 *t G Will. 4, c. .31, s. 5 [see vol. 2, 
 p. 793] ; and enacts, that if any person shall after the commencement of 
 this Act be convicted of any of tlie offences hereinbefore mentioncLl, suc'.i 
 person shall not suffer death, or have sentence of death awarded against 
 him or her for the same, but shall be liable, at the discretion of the court, 
 to be transported beyond the seas for life, or for any term not less than 
 seven years, or to be imprisoned for any term not exceeding four years 
 nor less than two years. 
 
 The Acts recited in sec. 2 arc repealed bv the 8 i.^- 9 Vict, c. SI, an-l 
 24 & 25 Vict. c. 95. 
 
 3. And be it enacted, that when any person shall be convicted of any 
 offence punishable under this Act for which imprisonment may ho 
 awarded, it shall be lawful for the court to sentence the <.)ffcndcr to ho 
 imprisoned, with or without hard labour, in the common gaol or liou.so 
 of correction, and also to direct that the oUender shall Ite kei't in solitary 
 confinement for any portion or portions of such imprisonment, not ex- 
 ceeding one month at any one time, and not exceeding three months in 
 any one year, as to the court in its discretion shall seem meet. 
 
 Etfect of a 
 free or comli- 
 tioual pardoa 
 tj a couvict. 
 
 Il'.ilc for tlie 
 iiiteriiretation 
 of all oriruinal 
 
 (■tatiitcs. 
 
 Not to exteinl 
 to Sootlaii'l or 
 Ireland. 
 
 PfTsons con- 
 victcil of :iiiy 
 of the oireiK'cs 
 lioreinltcfore 
 meiitioiieil to 
 lie liaMe to Ikj 
 tr:uisp<.;tOil. 
 
 Pci-sons con- 
 viot<jil of 
 oireiiccs 
 ItunishaMc Iiy 
 iiiipri.somneiU 
 may l>o kejit to 
 li.inl lal>i>ur 
 aii'l to sulil iry 
 ooulineiiK'iit. 
 
 (a) The 37 & 38 Viet. c. 35 (tho 
 Statute Law Revision Act, 1874), repeals 
 this Act in part ; namely, 
 
 So much as relates to the ]mnishnient 
 of olTences Ibrmerlv punishalile luitlcr 
 tlic Acts 11 Geo. i & 1 Will. 1, c. (56, 
 5 & 6 Will. 4, c. i'>, or 3 & 4 Will. 4. 
 c. 51. 
 
 Also, except as to Scothuul, so unnh 
 as relates to the punishnient of ollences 
 formerlv pnnislinMe under tlio Acts 2 ft 
 3 Will."4, c. 1-23 or 3 & I Will. 4, c. 1 1. 
 
 Section four from "or in an Act " lo 
 the end of that section. 
 
 Section Five.
 
 0'40 Appendix of Statutes. 
 
 r, ,^ G Vict, c, 38. (/>) 
 
 .(/' (•/ /" 'A////' ///' Jitiii^iUclim of Justices in O'eiiaal iind (^i«irt<f 
 Simons of the Peace. 
 
 [?,OthJune, 1S42.] 
 
 ' Wlicrciis it is exi»C(liciit lliat tlio powers of justices in general and 
 (lUiutcr sessions of tiie jicacc witii respect to tlic trial of ofreiiccs be better 
 (letined ; ' be it enacted by tlic Queen's most excellent ^Majesty, by and 
 vitli the advice and consent of tlic kirds spiritual and temjioral, and 
 ccnuiions, in this present Parliament assemlded, and by the authority of 
 Justices in tlic same, that after the passing of this Act neither the justices of the 
 
 hcssions ic- peace acting iri and for any county, riding, division, or liberty, nor the 
 
 stiiiiiieil from i p , i i n • /. i 
 
 tiviii" certain recorder or any liorough, shall, at any session of the peace, or at any ad- 
 
 otienccs. journmeut thereof, try any person or persons for any treason, murder, or 
 
 capital felony, or for any felony which, when committed by a penson not 
 pi-eviously convicted of felony, is punishable [by transportation beyond 
 the seas] (f) for life, or for any of the following ollcnces (that is to 
 say) :— 
 
 I. Misprision of treason : 
 
 '2. OUbnces against the Queen's title, prerogative, person, or govern- 
 ment, or against cither House of Parliament : 
 
 .']. Offences subject to the penalties of ])riemunire : 
 
 4. Blasjihemj', and offences against religion : 
 
 .'>. Administering or taking unlawful oaths : 
 
 (!. Perjury and subornation of perjury : 
 
 7. Making or suborning any other person to make a false oath, affir- 
 
 mation, or declaration, punishable as pcrjuiy or as a misde- 
 meanor : 
 
 8. Forgery : 
 
 'J. Unlawfully and maliciously setting fire to crops of corn, grain, or 
 pulse, or to any part of a wood, cojipice, or plantation of trees, or 
 to any heath, gorse, furze, or fern : 
 
 10. Bigamy, and offences against the laws relating to marriage : 
 
 1 1. Abduction of women and girls : 
 
 \1. Endeavouring to conceal the birth of a child : 
 
 13. Offences against any provision of the laws- relating to bankrupts and 
 insolvents : (6) 
 
 14 Composing, printing, or iDublishing blasphemous, seditious, or defa- 
 matory libels : 
 
 15. Bribery : 
 
 1 (J. Unlawful combinations and conspiracies, except conspiracies or com- 
 binations to commit any offence which such justices or recorder 
 respectively have or has jurisdiction to try when committed by 
 one person : 
 
 17. Stealing or fraudulently taking, or injuring or destroying records 
 or documents belonging to any court of law or equity, or relating 
 to any jirocecding therein : 
 
 (?') By 32 & 33 Yiot. e. 62, s. 20, so witliin the jurisdiction of snob justices 
 
 imich of this Act as excludes from tlie and recordere. 
 
 jurisdiction of justices and reooideis at By 37 & 38 Vict. c. 96, this Act (5 & 6 
 
 sessions of the peace, or adjouinnieiits Vict. c. 38 >, is repealed in yvirt ; namely, — 
 
 thereof, tlie trial of jicisons for oiVences section one, the item of olfences numbered 
 
 against any provision of the hiws relating 13, and from "jirovided" to the end of 
 
 to bankrupts, is hereby repealed as from that section, 
 the passing of this Act ; and any oticnce Section Five, 
 
 under this Act shall be deemed to lie {c) Nowpenalservitude, seevol. l,p. 73.
 
 G d 7 Vict. c. 12. 
 
 G41 
 
 18. Stealing or fraudulentlj destrojing or concealing wills or testamen- 
 tary papers, or any document or written instrument being or 
 containing evidence of the title to any real estate or any interest 
 in lands, tenements, or hereditaments : 
 Provided (d) always, that nothing herein contained shall be construed to Proviso as to 
 give authority to the justices of the peace acting in and for the cities of justices acting 
 London and Westminster, the liberty of the Tower of London, the '" Lon.lon and 
 borough of Southwark, and the counties of Middlesex, Essex, Kent, and *^^ environs. 
 Surrey, to try any person or persons for any offence committed or alleged 
 to be committed within the jurisdiction of the Central Criminal Court, 
 Avhich such justices are restrained from trying under the jn-ovisions of an 
 Act passed in the fifth year of the reign of his late Majesty, intituled 
 'An Act for establishing a new court for the trial of offences "committed 
 in the metropolis and parts adjoining.' 
 
 4 & 5 Will. 4, 
 c. 36. 
 
 6 «t 7 Vict. c. 12. 
 
 An Act for the more convenient Holdiwj of Coroners Inquests. 
 
 [Wth April, 1843.] 
 ' Whereas it often happens that it is unknown where persons lying 
 dead have come by their deaths, and also that such persons may die in 
 other places than those in which the cause of death happened : ' be it 
 enacted by the Queen's most excellent Alajestj', by and with the advice 
 and consent of the lords spiritual and temporal, and conmions, in this 
 present Parliament assembled, and by tlie authority of the same, that the 
 coroner only within whose jurisdiction the body of any person upon whose 
 death an inquest ought to be holden shall be lying dead shall hold the 
 inquest, notwithstanding that the cause of death did not arise within the 
 jurisdiction of such coroner ; and in the case of any body found dead in 
 the sea, or any creek, river, or navigable canal within the flowing of the 
 sea, where there shall be no deputy coroner for the jurisdiction of the 
 Admiralty of England, the inquest shall be holden only by the coroner 
 having jurisdiction in the place where the body shall be first brought to 
 land. 
 
 2. For the puri)osc of holding coroners' inquests every detached ])art 
 of a county, riding, or division shall be deemed to be witliin that county, 
 riding, or division by which it is wholly surrounded, or where it is partly 
 surrounded by two or more counties, ridings, or divisions, within tliat one 
 with which it has the longest common boundary. 
 
 3. If a verdict of murder or manslaughter, or as accessory liefore the 
 fact to any murder, shall be found liy tlie jury at any s\ich inquest, 
 against any person or persons, the coroner Imldiug tlie said iiu|ucst and the 
 justices of oyer and terminer and gaol delivery for the county, city, dis- 
 trict, or place in which such inquest sliall be holden, and all other pei-son.s 
 shall have the same powers respectively for the commitment, trial, ami 
 execution of the sentence of the person or persons so charged as they 
 now by law ])osscss with regard to the commitment, trial, and execution 
 of the sentence \\\)0\\ any ])erson or persons committed and tried within 
 the jurisdiction wliere the death happened. 
 
 Coroner only 
 within whose 
 jurisdiotii)U 
 the body is 
 lyin^ dead 
 shall hold the 
 inquest. 
 
 Provision for 
 detached i>aiti 
 of counties. 
 
 Parlies may I e 
 tried on 
 verdict.s of 
 murder or 
 mans^lauL'hler. 
 
 7 ct 8 Vict. c. '1. 
 
 See PS. 1 and 2, as to offences committed on the high seas, vol. 1, ]>. K.. Wh*ro 
 
 3. The justice or justices by whom any information shall be taken f>nrendera shall 
 
 •'•'''•' be tried. 
 
 ((/) Sec note ('»> onlc, \-. ti4<'.
 
 <; iL> 
 
 [ppcndix of Sttilulcs. 
 
 7<in<. J,.-.:>3. 
 
 toiu'liiii^ aiiv oll'onco cotnmittcil within tiie jnrisiliction of tlic Ailiniialty 
 of ICii"'I;inil Miiilortlic provisions of an Act passcil in tlio seventh year of 
 tho roi'^n of Kin;^ (Jeorp;o flic l''onrHi, intituled ' An Act to enable coin- 
 iiiissiuners for tryin;,' oll'ences u|K)n the sea, ami justices of tlie peace, to 
 take examinations toncliinj^ such oH'ences, and to commit to saf*; custody 
 pjrsons charj^'cd tlierewitii,' if lie or they shall see cause thereupon to 
 commit such ])erson to take his ti'ial for such olleiice, shall commit him 
 to the same prison to which he would have been committed to take his 
 trial at the next court of oyer and terminer and ;:,'cneral gaol delivery if 
 the oiVence had been committed on land within the jurisdiction of the 
 same justice or justices, and shall have authority to bmd l)y roco<^ni/.an;e 
 all persons who shall know or declare anythinj^ material touching the 
 said oftoncc to appear at the said next court of oyer and terminer and 
 "•cncral gaol delivery, then and there to prosecute or give evidence 
 against the party accused, and shall return all such informations and 
 recognizances to the proper officer of the Court in which the trial is to 
 be, at or before the opening of the court ; and every such offender sha'.l 
 be arraigned, tried, and sentenced, as if the offence had been committed 
 within the county, riding, or division for wdiich such court shall be 
 holden. See vol. 1, p. 16, note (/•). 
 
 4. Nothing herein contained shall affect the jurisdiction belonging to 
 the Central Criminal Court for the trial of persons charged with offences 
 committed on the high seas and other places within the jurisdiction of 
 the Admiralty of England, or to restrain the issue of any special com- 
 
 of si)eoi:il com- mission under the first recited Act for the trial of such offenders, if need 
 
 missions. gjj.^n j^p^ 
 
 Not to alTect 
 (/'entr;il 
 CriiiiisKil 
 Court, or pre- 
 vent tlic issue 
 
 Questions uf 
 l:i\v may lie 
 reserved at 
 sessions of the 
 peace for con- 
 siileration of 
 jutlges. 
 
 Questions re- 
 served to be 
 certified to 
 llie judgLS. 
 
 11 ct 12 VicT. c. 78. 
 
 An Act for the farther Amendment of the Ad inlnist ration of the 
 Criminal Lai'.'. 
 
 [iUt August, 1848.] 
 
 1. When any person shall have been convicted of any treason, felony, 
 or misdemeanor before any court of oyer and terminer or gad delivery, 
 or court of quarter sessions, the judge or commissioner or justices of the 
 ])eace before whom the case shall have been tried may, in his or their 
 discretion, reserve any ([uestion of law which shall have arisen on the 
 trial for the consideration of tho justices of either beach and barons of 
 the exchequer, and thereupon shall have authority to respite execution 
 of the judgment on such conviction, or postpone the judgment until such 
 question shall have been considered and decided, as he or they may think 
 fit ; and in either case the court in its discretion shall commit the person 
 convicted to ])rison, or shall take a recognizance of bail, with one or two 
 sufficient sureties, and in such sum as the coui-t shall think fit, condi- 
 tioned to appear at such time or times as the court shall direct, and 
 i-eceive judgment, or to render himself in execution, as the case may be. 
 
 2. The judge or commissioner or court of quarter sessions shall there- 
 upon state, in a case signed in the manner now usual, the question or 
 questions of law which shall have been so reserved, with the special cir- 
 cumstances upon which the same shall have arisen ; and such case shall 
 be transmitted to the said justices and barons, and the said justices and 
 barons shall thcrcupDU have full power and authority to hoar and finally 
 determine the said question or questions, and thereupon to revei-se, 
 affirm, or amend any jiulgment which shall have been given on the in- 
 dictment or inquisition on the trial w hereof such question or questions 
 have arisen, or to avoid such judgment, and to order an entiy to be made 
 ou the record, that iu the judgment of the said justices and barous the
 
 11 c(- 12 Vict. c. 78. CIJ 
 
 party convicted oiiglit not to have been convicted, or to arrest the judg- 
 ment, or order judgment to he given thereon at some other session of 
 03'er and terminer or gaol delivery, or other sessions of the peace, if no 
 judgment shall have been before that time given, as they shall be advised, 
 or to niake such other order as justice may ro(iuire ; and such judgment 
 and order, if any, of the said justices and l)arons, shall be certilied nnder 
 the hand of the presiding chief justice or chief baron to the clerk of 
 assize or his depnty, or to the clerk of the peace or his depnty, as the case 
 may be, who shall enter the same on tlie original record in proper form ; 
 and a certificate of such entry, nnder the hand of the clerk of assize or 
 his deputy, or the clerk of the peace or his de[)ut3% as the case may be, 
 in the form, as near as may be, or to the effect mentioned in tlie schedule 
 annexed to this Act, with the necessary alterations to adapt it to the 
 circumstances of the case, shall be delivered or transmitted by him to 
 the sheriff or gaoler in whose custody the person convicted shall l)e ; and 
 the said certificate shall lie a sufficient warrant to such sheriff or gaoler, 
 and all other persons, for the execution of the judgment, as the same 
 shall be certified to have been affu-mcd or amended, and execution shall 
 be thereupon executed on such judgment, and fur the discharge of tiie 
 person convicted from further imprisonment, if the judgment shall be 
 reversed, avoided, or arrested, and in that case such sheriff or gaoler shall 
 forthwith discharge him, and also the next court of oyer and terminer 
 and gaol delivery or sessions of the peace shall vacate the recognizance 
 of bail, if any ; and if the court of oyer and terminer and gaol delivery 
 or court of quarter sessions shall be directed to give judgment, the said 
 court shall proceed to give judgment at the next session. 
 
 3. The jurisdiction and authorities by this Act given to the said (^ui.nini of 
 
 justices of either bench and barons of the exchequer shall and may be j"''j-'''-' ; tl>e'r 
 
 exercised by the said i\istices and barons, or five of them at the least, of 3»''^''"<-'''ts to 
 
 "^ be ticln'ercil in 
 
 whom the lord chief justice of the Court of Queen's Bench, the lord chief ^pcn court. 
 
 justice of the Coiu-t of Connnon Pleas, and the lord chief baron of the 
 Court of Exchequer, or one of such chiefs at least, shall be ]iart, being 
 met in the exchequer chamber or other convenient place ; and tiie judg- 
 ment or judgments of tlie said justices and barons shall l)e delivered in 
 <>|en court, after hearing counsel or the jiarties, in case the prosecutor or 
 tlie person convicted shall think it fit tliat the case sliall be argued, in 
 like manner as the judgnimts of the superior courts of common law at 
 Westminster or Dublin, as the case may be, arc now delivered. 
 
 4. The said justices and barons, when a case has been reserved for Case or ccr- 
 their opinion, shall have power, if they think fit, to cause the case or titu-ato mny be 
 certificate to be sent back for amenduient, and thereui)on the same sliall '"''"'' f^ .""" 
 1)0 amended accordingly, and jiuigiiiciit sliali ho (.leliveixHl alter it .shall 
 
 have been amended. 
 
 5. Whenever any writ of error shall be brought upon any judgment ^^ I'C" j'x'g- 
 on any indictment, information, iiresentnieiit, or iiH|uisition, in any [•".'," .,i"*„,^*^^.rit 
 criminal case, and the court of error shall rever.se the judgment, it shall of error, re- 
 he competent for such court of error either to jironounce flie jiropcr or.l luay Iks 
 judgment or to remit the record to the c.'iirt below, in order that sueli 'l':'""*''' t" 
 court may pronounce the projier judgment iipoii sueh indictment, f,''r'u(i!^inont 
 information, presentment, or iiu|uisit ion. 
 
 G. Every person who shidl forge or alter, or bhall oiler, utter, di.spo.se Penally fur 
 of, or put off, knowing the same to be forged or altered, any ccrtifie^itcof ^"'o''''>'- 
 or copy certified by a chief justice, or any certificate of or copy certified 
 by a clerk of assize or his deputy, or the clerk of the peace or Ids deputy, 
 as the case may be, with intent to cause any ]>erson to be discharged 
 from custody, or otlierwi.sc prevent the due course of justice, sliall bo 
 guilty of felon}', and being convicted thereof shall be liable, at the 
 discretion of the court, to be transported beyond the seas for any term
 
 CM Appendix of Statutes. 
 
 not exceeding ten yeiirs, or l)o imprisoue*! for siiiy term not cxceeJing 
 tlirco yeiii*H, with or without liurd labour and solitary confinement, both 
 or cither, at the discretion of the court before which he shall be tried. 
 
 SCHEDULE. 
 
 Whereas at the session of the peace for the county of held 
 
 on before and others their fellows \or at the 
 
 session of oyer and terminer and f^^aol delivery held for the county of 
 on before, among others, Sir ^l. B., Knight, 
 
 one of the justices of the court of and htre name 
 
 the quorum commissioners, justices of oyer and terminer and gaol 
 delivery], A.B., late of labourer, having been found 
 
 guilty of felony, and judgment thereupon given, that \st(Ue the substance^ 
 the court before whom he was tried reserved a certain question of law 
 for the consideration of the justices of either bench and the barons of 
 the exchequer, and execution was thereupon respited in the meantime : 
 
 This is to certify, that the said justices and barons having met in the 
 exchequer chamber at Westminster \or Dublin, as the case iwiy 6e] on 
 the day of it was considered by the said 
 
 justices and barons there that the judgment aforesaid should be annulled, 
 and an entry made on the record that the said A.B. ouglit not, in the 
 judgment of the said justices and barons, to have been convicted of the 
 felony aforesaid ; and you are therefore hereby required forthwith to 
 discharge the said A.B. from your custody. 
 
 To the Gaoler of and the Sheriff of 
 
 and all others whom it may concern. 
 (Signed) E.F. 
 Clerk of the Peace for the County of 
 \or Clerk of Assize for 
 m the case may he.'\ 
 
 Conditional 
 pardons to bo 
 allowed with 
 reference to 
 the substituted 
 punishment, 
 as in cases of 
 pardons on 
 condition of 
 transporta- 
 tion. 
 
 Persons under 
 sentence or 
 order of penal 
 servitude, how 
 to be dealt 
 with. 
 
 IG tfe 17 YlCT. C. 99. 
 
 Sees. 1, 2, 3, and 4 are repealed by the 20 & 21 Vict. c. 3. 
 
 5. Whenever Her Majesty or the lord lieutenant, or other chief 
 governor or governors of Ireland for the time being shall be pleased to 
 extend mercy to any oftender convicted of any offence for which he may 
 be liable to the punishment of death, upon condition of his being kept to 
 penal servitude for any term of years or for life, such intention of mercy 
 shall have the same eti'ect, aud may be signified in the same manner, 
 and all courts, justices, and others shall give effect thereto and to the 
 condition of the pardon in like manner, as in the cases where Her 
 Majesty, or the lord lieutenant, or other chief governor or governors of 
 Ireland for the time is or are now pleased to extend mercy upon condi- 
 tion of transjjortation beyond seas, the order for the execution of 
 such punishment as Her Majesty, or the lord lieutenant, or other chief 
 governor or governors of Ireland for the time being may have made the 
 condition of her, his, or their mercy being substituted for the order for 
 transportation. 
 
 0. Every person who under this Act shall be sentenced or ordered to 
 be kept in penal servitude may, during the term of the sentence or order, 
 be confined in any such prison or i)lace of confinemeut in any part of the 
 United Kingdom, or in any river, port, or harbour of the United King- 
 dom, in which persons under sentence or order of transportation ma^' now 
 by law be contiued, or in any other prison iu the United Kingdom,
 
 16 & 17 Vict. c. 99. C45 
 
 or in any part of Her Majesty's dominions beyond the seas, or in any 
 port or harbour thereof, as one of Her Majesty's principal secretaries of 
 state may from time to time direct ; and such person may during such 
 term be kept to hard labour, and otherwise dealt with in all respects as 
 persons sentenced to transportation may now by law be dealt with whilst 
 so confined. 
 
 7. All Acts and provisions of Acts now applicable with respect to All Acts, &c. 
 
 1 , 1 n, ■•. 11 f i„ concerning 
 
 persons under sentence or order of transportation shall, so tar as may ue (.o„^.ij_.^g ^^^, 
 
 consistent with the express provisions of this Act, be construed to extend teuced to 
 
 and be ap])licab]e to persons under any sentence or order of penal servi- trauspoi-tatioa 
 
 tude under this Act ; and all the powers and provisions contained in the "'^tle api'lio- 
 
 Act of the fifth year of King George the Fourth, chapter eighty-four, '^,^^ purposes 
 
 authorizing the appointment by Her Majesty from time to time of jjluces of this Act. 
 
 of confinement as therein mentioned for male ofienders under sentence 
 
 or order of transportation, and authorizing Her Majesty to order male 
 
 offenders convicted in Great Britain and lender sentence or order of 
 
 transportation to be kept to hard labour in any part of Her Majesty's 
 
 dominions out of England, shall extend and be applicable to and for the 
 
 appointment by Her Majesty of like places of confinement in any part of 
 
 the United Kingdom for ofienders (whether male or female) sentenced 
 
 under this Act in any part of the United Kingdom, and to and for the 
 
 ordering of such offenders to be kept to hard hibour in any part of Her 
 
 Majesty's dominions out of England ; and all the provisions of the said 
 
 Act concerning the removal to or from and confinement in the places of 
 
 Confinement in or out of luigland, a])pointed under the said Act, of the 
 
 offenders therein mentioned, and all Acts and provisions of Acts now in 
 
 force concerning or relating to the regulation and government of sucli 
 
 places of confinement, and the custody, treatment, management, and 
 
 control of or otherwise in relation to the offenders confined therein, shall, 
 
 so far as the same may be consistent with the express provisions of the 
 
 Act, extend and be a})p]ical)le to and for the removal to and from anil 
 
 confinement in the places of confinement appointed under this Act, of the 
 
 offenders sentenced in any part of the United Kingdom, and otherwise 
 
 be applicable to and in respect of such places of confinement and the 
 
 offenders to be confined therein. 
 
 8. Provided always, that all the powers vested under this Act expressly Towrs of 
 or by reference to any other Act, in one of Her .Nhijesty's principal J^j!|[^^j'[^j,^ 
 secretaries of state, shall in relation to i)laces of confinement in Ireland, pxcr^.i.se(l in 
 or where such powers are otherwise to be excicised in Ireland, be helaml li.v 
 exercised by the lord lieutenant or other chief governor or governors of lord licii- 
 Ireland ; and where the signature of one of Her Majesty's princijial tcnai.t. 
 secretaries of state would be necessary in relation to the exercise of such 
 
 powers, the signature of such lord lieuteuMnt or chief governor or 
 governors, or his or their chief secretary, shall be sufficient in the case t'f 
 the exercise of such powers by such lord lieutenant i>r chief governor or 
 governors. 
 
 9. It shall be lawful for Her Majesty, by an order in writing nndoi- I Kr Majesty 
 
 the hand and seal of one of Her Majesty's i)rincipal secretaries of state, ".'">' *>'™"'' , 
 
 , i . ^ 1 i r X 1 i- 1 licences to IHS 
 
 to grant to any convict now under sentence ot transportation, or who ^^ j^^ ^^ 
 
 may liereafter bo sentenced to transportation, or to any ])unishmcnt o<invict.s under 
 
 substituted for transportation by this Act, a licence to be at large in the sentence of 
 
 United Kingdom and the Channel Islands, or in sucli i>art thereof re- inmsiKirt.i- 
 
 spectively as in such licence shall be exjircsscd, during such jiortion of his '*'"' 
 
 or her term of transjioi'tation or imprisonment, and upon such conditions 
 
 m all respects as to Her Majesty shall seem tit ; and it shall be lawful 
 
 for Her Majesty to revoke or alter such licence by a like order at IKr 
 
 Majesty's ])leasure. 
 
 10. So long as such licence shall continue in force and unrcYokc<l ii..ldcrof
 
 GIG 
 
 lii-piicp imt to 
 liu iiii|iri:<iiiu;<l, 
 &('., liy reaMoii 
 of liis Hcn- 
 
 to I ICO. 
 
 If liccnro re- 
 vokcil, tho 
 i-oMvict limy \<o 
 iiliprchcnded 
 niid coinmitted 
 ti> juisoii. 
 
 Queen's jire- 
 rogative. 
 
 Discretion of 
 courts as to 
 nltcrnative 
 iiunisliiucnts 
 net to be 
 affected. 
 
 Transporta- 
 tioa. 
 
 sticli ciiMvict hliall not lio Ii;il)lo to he itnprisoiicfl or traiisportcdby reason 
 of lii.s or lii'r Kcntt'iicc, but sliall l)e allowed to '^o iiii<l rcniaiii at largo 
 ucconliiig to llie tc-rm of siicli licence. 
 
 I I. if it sliiill please Her Majesty to revoke any si.ch licence a.s afore- 
 said, it shall he lawful for one of Her Majesty's jirincipal secretaries of 
 state, l>y warrant under his hand and seal, to si;jnify to any one of the 
 police magistrates ui the nietrojiolis that such licence has heen revoked, 
 and to re(inire such magistrate to issue his warrant under his hand and 
 seal for tho apprehension of the convict to whom such licence was 
 granted, and such magistrate shall issue his warrant accordingly, and 
 such warrant shall and may he executed by tho constahle to whom the 
 same shall be delivered for that jjurposo in any part of the United 
 Kingdom, or in tho Isles of Jersey, (Jucrnscy, Alderney, or Sark, and 
 shall have the same force and effect in all the .said places as if the same 
 had been originally issued or subscciuently endorsed l)y a justice of the 
 peace or magistrate, or other lawful authority having jurisdiction in the 
 ])lacc where the same sh dl be executed ; and such c<jnvict when apj^re- 
 liended under such warrant shall be brought, as soon as he conveniently 
 may be, before the magistrate by whom the said wariaut shall have been 
 issued, or some other magistrate of the same cuurt, and such magistrate 
 shall thereupon make out his warrant under his hand and seal for the 
 rocouimitment of such convict [to tho prison or jdace of confinement from 
 which he was released by virtue of the said licence] (a) and such convict 
 shall be so recommitted accordingl}^ and shall thereupon be remitted to 
 his or her original sentence, and shall undergo the residue thereof as if 
 uo such licence had been granted. 
 
 12 is repealed by tho 24 & 2o Vict. c. 95. 
 
 l.'x Nothing in this Act contained shall in any manner affect Her 
 Majesty's royal prerogative of mercy, or any prerogative of mercy vesteil 
 in the lord lieutenant or other chief governor or governors of Ireland 
 for the time being. 
 
 1-1. Nothing herein contained shall interfere with or affect the autho- 
 rity or discretion of any court in respect of any punishment which such 
 court may now award or pass on any offender other th:ai transportation, 
 but where such other punishment may be awarded at the discretion of the 
 court, instead of transportation, or in addition thereto, the same may be 
 awarded instead of or (as the case may be) in addition to the punishment 
 substituted for transportation under this Act. 
 
 15. For the purposes of this Act, the term ' Iransportation' shall 
 inelnde banishment bevond the seas. 
 
 20^1' 21 Vict. c. 3. 
 
 An Act to amend the A<t of the Suteenth and Seventeenth Years of Iler 
 Majesty, to substitute in certain Cases other Funish7nent in lieu of 
 Transportation. 
 
 [2GM June, ltj>7.] 
 
 Sec. 1 repeals sees. 1, 2, 3, and 4 of the IG it 17 Vict. c. 99. 
 Sentence of 2. After the commencement of this Act, no person shall be sentenced 
 
 transportiition to transportation ; and any person who, if this Act and the said Act had 
 
 aliohshcil, and ^q^ been passed, might have been sentenced to transportation, shall, after 
 
 i>cual servi- *'"^ commencement of this Act, be liable to be sentenced to be kept in 
 
 tude suKsti- pein\l servitude for a term of the same duration as the term of transpor- 
 
 tuted. tation to which such person would have been liable if the said Act and 
 
 ('0 The part within brackets is repealed I'v the 37 & 3S Vict. c. 66, the Statute 
 L;uv Ixcvision Act, 1S75.
 
 20 tC- 21 Vict. c. 3. G47 
 
 this Act had not been passed ; and in every case where, at the discretion 
 of the court, one of any two or more terms of transportation might have 
 been awarded, the court shall have the hke discretion to award one of 
 any two or more of the terms of penal servitude which are hereby au- 
 thorized to be awarded instead of such terms of transportation : provided 
 always, that any person who might, at tlie discretion of the court, have 
 been sentenced either to transportation for any term, or to any peri<.>d of 
 imprisonment, shall be liable, at the discretion of the court, to be sen- 
 tenced either to penal servitude for the same term, or to the same 
 period of imprisonment ; and in any case in which before tlie passing of 
 the said Act sentence of seven years' trans]jortatiou miglit have been 
 passed, it shall be lawful for the cuurt in its discretion to pass a sentence 
 of penal servitude of not less than three years. 
 
 3. 'And whereas the provisions applicable to persons under sentence Pi'ovLsions of 
 of transportation extend to persons under sentence of penal servitude in*L trans- 
 conveyed to parts beyond the seas in those cases only where they are ported of- 
 conveyed to and kejit in places of confinement appointed under the said fenders to ap- 
 Act, or the Act of the fifth year of King George the Fourth, chai>ter Pb' ^'^ ofTen.lers 
 eighty-four, and it is expedient to extend the said provisions to other ""',^en-i!'scrv*i- 
 cases : ' tude. 
 
 Any person now or hereafter under sentence or order of penal servi- 
 tude may, during the term of the sentence or order, be conveyed to any 
 place or places beyond the seas to which offenders under sentence or 
 order of transportation may be conveyed, or to any place or places 
 beyond the seas which may be hereafter appointed as herein mentioned ; 
 and all Acts and provisions now applicable to and for the removal and 
 transportation of offenders under sentence or order of transportation to 
 and from any places bej'ond the seas, and concerning their custod}-, 
 management, and control, and the property in their sen'ices, and the 
 punishment of such offenders if at large without lawful cause before the 
 expiration of their sentence, and all other provisions now applicable to 
 and in the case of persons inider sentence or order of transportation, 
 shall apply to and in the case of persons under scjitence or order of 
 penal servitude, as if they were persons under sentence or order of 
 transportation. 
 
 4. The provisions and powers of the said Act of the fifth year of King Existing 
 George the Fourth, authorizing the appointment (by Her Majesty, with ^[|7„7 d',o's ,. 
 the advice of Her ja-ivy council) of any jdace or places beyond the seas trimsporcui. n 
 to which felons and other oftenders under sentence or order of trans- to l.c lipplica- 
 portation shall be conveyed, and all other powers of Her Majesty, or the I'lc for the 
 lord lieutenant or chief governor or governors of Ireland, for the like {'".'''"*^ "^ 
 purpose, shall extend and be applicable to and for the appointment of 
 
 any place or places beyond the seas to which offenders under sentence or 
 order of penal servitude may be conveyed, as herein provideil. 
 
 0. ' And whereas by tlie said Act of the sixteenth and seventeenth ^':>^i>t>-itcs 
 
 years of Her ^lajesty it is provided, that any convict whoso hccncc is j.„„\.i,.,„ „|,pg<, 
 
 revoked shall be recommitted to the prison or place of confinement from liconrcs aro 
 
 which he was released by virtue of the said licem-c ;' be it enacted, that rev.ked t^ 
 
 from and after the jtassing of this Act, any siuli convict may be re- ix'j-il •'•crvi. 
 
 committed by the magistrate issuing his warrant in that behalf, either to ^"' ^''' '|'V.,„„ 
 the prison from which he was released by virtue ot Ins licence, or to any 
 other prist)!! in which convicts under sentence of penal servitude may be 
 lawfully confined. 
 
 G. "Where in any enactment now in force tlie cxiiression ' any crime All enact - 
 . , , , . , *' • . - 11111 -i Hunts rcfcr- 
 punishable with transportation, or ' any crime punisiiahle by law witli rin- to trans- 
 transportation,' or any exjn-ession of the like import, is used, the enact- port.ition to 
 ment shall be construed and take effect as applicable also to any crime imvo rcferoncc 
 punisliable with penal scrvitmle. vltudc*
 
 G 1 8 Ai^pendix of Slat utes. 
 
 llccitcl Art 7. Tlio Knid Ach of tlic Kixtcontli nnd Hcvcntcontli yoai-H of Fler Majesty 
 
 iiikI iliis ti) 1.0 nml this Act tiliall he reud and construed together as one Act. 
 
 re.'ul iiH line. 
 
 2 1 & 2.5 Vict. c. 9i. 
 
 An Act to consolidate and amend the Statute Lav) of Emjhind and Ireland, 
 relating to Accessories to and Abettors of IndirUihle Offences. 
 
 \})th Au'jmt, 18G1.] 
 
 * "Wliercns it is expedient to consohdato and amend tlic statute law of 
 
 England and helaucl relating to accessories to and ahettors of iudictahlc 
 
 otl'ences ; ' l)c it enacted hy, itc, as follows : 
 
 As to accessories before the fact : 
 
 Aorossorics !• Wliosoevcr shall become an accessory before the fact to any felony, 
 
 heiorc the fact whether the same he a felony at common law or Ijy virtjiie of any Act 
 
 may I'c tne.l passed or to be i)assed, may be indicted, tried, convicted, and nuuished 
 
 niul i>uiiislic<l • 11 i r 1 • • 1 r 1 
 
 as i.nii.ii.al.s '" '*" ^'^spects as it he were a principal felon. 
 
 . . 2. Whosoever shall counsel, i»rocurc, or command any other person to 
 
 Acccssoi'ips . ' 1 ' »/ 1 
 
 before the fact Commit any felony, whether the same be a felony at common law or by 
 may I'c in- virtue of an Act passed or to be passed, shall be guilty of felony, and 
 (licteil assucli, iii;,y l)c indicted and convicted either as an accessory l)efore the fact to 
 rr''^ j"'**"*"' *'"-' pi'incipal felony, together with the principal felon, or after the con- 
 viction of the principal felon, or may be indicted and convicted of a 
 substantive felony whether the j)rincipal felon shall or shall not have 
 been jjreviously convicted, or shall or shall not be amenable to justice, 
 and may tliereupon be punished in the same manner as any accessory 
 before tlie fact to the same felony, if convicted as an accessory, may be 
 punished. 
 
 As to accessories after the fact : 
 
 Accessories 3. Whosoever shall become an accessory after the fact to any felony, 
 
 after the fact whether the same be a felony at common law or by virtue of any Act 
 
 (Tictetrivs^sucli l-''^^-^^ 0^" to ^^ passed, may be indicted and convicted citlier as an 
 
 or as siibstan-' accessory after the fact to the principal felony, together with the 
 
 tivc felous. principal felon, or after the conviction of the principal felon, or may l)e 
 
 indicted and convicted of a substantive felony whether the principal 
 
 felon shall or shall not have been previously convicted, or shall or shall 
 
 not be amenable to justice, and may thereupon be punished in like 
 
 manner as any accessory after the fact to the same felony, if convicted as 
 
 an accessory, may be punished. 
 
 riinishmcnt of -1. Every accessory after the fact to anj- felony (except where it is 
 
 acce-s-sories otherwise Specially enacted), whetlier the same be a felony at common 
 
 alter the fact. j.^^^. ^^ |,y y\y.^y^Q ^,f .^,iy s^^^ passed or to be passed, shall be'liable, at the 
 
 discretion of the court, to be imprisoned in the common gaol or house of 
 
 correction for any term not exceeding two years, with or without hard 
 
 labour, and it shall be lawful for the court, if it shall think tit, to require 
 
 the oft'euder to enter into his own recognizances and to find sureties, 
 
 both or either, foi* keeping the peace, in addition to such punishment : 
 
 ])rovided that no person shall be imprisoned under this clause for not 
 
 finding sureties for any period exceeiling one year. 
 
 As to accessories generally : 
 
 rrosccution of 5. If any jirincipal otlender shall be in anywise convicted of any 
 
 accessory after felony, it shall be lawful to jiroceed against any* accessoiy, either before 
 
 been con- ^'^ '^!^^^''' *'**-' ^'^^*^' '" ^^'^ ^'^"^^' manner as if such principal felon had been 
 
 victe.l, but not f^^t^iuted thereof, notwithstanding such principal felon shall die, or be 
 
 attainted. pardoned, or otherwise delivered befcre attainder, and every such 
 
 accessory shall njion conviction suffer the same punishment as he would 
 
 have sullered if the i)rincipal had been attainted. 
 
 Federal acc(». 0. Any number of accessories at difterent times to any felonv, and
 
 24 c^ 25 Vict. c. 95. 649 
 
 any number of receivei'S at difiercnt times of property stolen at one series may bo 
 
 time, may be charged with sul)stantive felonies in the Siime indictment, included in 
 
 and may be tried together, notwithstaudmg the principal felon shall not j-,^tj|^'"^t 'al- 
 
 be included in the same indictment, or shall not be in custody or amen- tliouj,'h prinei- 
 
 able to justice. pal felou not 
 
 7. Where any felony shall have been wholly committed Avithin in'^lu'led. 
 England or Ireland, the oflence of any person who shall be an accessory Trial of 
 cither before or after the fact to any such felony may be dealt with, accessories, 
 inquired of, tried, determined, and punished Ijy any court which shall 
 
 have jurisdiction to try the principal felony, or any felonies committed 
 in any county or place in which the Act by reason whereof such person 
 shall have become such accessory shall have been committed ; and in 
 every other case the offence of any person who shall ijc an accessory 
 either before or after the fact to any felony may be dealt with, impiired 
 of, tried, determined, and punished by any court which sliall have juris- 
 diction to try tlie principal felony or any felonies connnitted in any 
 county or place in which such person shall be apprehended or be in 
 custody, whether the principal felony shall have been committed on the 
 sea or on the land, or begun on the sea and completed on the land, or 
 begun on the land and completed on the sea, and wlicther within Her 
 Majesty's dominions or without, or partly within Her Majestj^'s dominions 
 and partly without : provided that no person who shall be once duly 
 tried either as an accessory before or after the fact, or for a substantive 
 felony under the provisions hereinbefore contained, shall be liable to be 
 afterwards prosecuted for the same offence. 
 As to abettors in misdemeanors : 
 
 8. Whosoever sh;ill aid, abet, counsel, or procure the commission of Abettors m 
 any misdemeanor, whether the same be a misdemeanor at connnon law ^^ ein-au- 
 or by virtue of any Act passed or to be passed, shall be liable to be tried, 
 indicted, and punished as a principal otTender. 
 
 As to other matters : 
 
 9. Where any person shall, within the jurisdiction of the Admiralty As to offences 
 of England or Ireland, become an accessory to any felony, whether tiic '^"•?|""*!^ , 
 same be a felony at common law or by virtue of any Act jtasscd or to be jurisdiction of 
 j)assed, and whether such felony shall be committed within tliat juris- tho Admimlty. 
 diction or elsewhere, or shall be begun within that jurisdiction and 
 completed elsewhere, or shall be begun elsewhere and completed within 
 
 that jurisdiction, the oflence of such person shall be felony ; and in any 
 indictment for any such offence the venue in the margin shall be the 
 same as if the offence had been connnitted in the county or jilace in 
 which such person shall be indicted, and his X)ftence shall be averred to 
 have been committed 'on the high seas;' provided that nothing iieroin 
 contained shall alter or affect any of the laws relating to the govcrnineiit 
 of Her Majesty's land or naval forces. 
 
 10. Nothing in this Act contained shall extend to Scotland, except Act not lo ox- 
 as hereinbefore otherwise expressly provided. J'^'"'' '* ^'"^' 
 
 11. Tiiis Act shall commence and take effect on the first day of "I 
 
 November, one thousand eight hundred and sixty-one. Conimcnce- 
 
 ' '^ '' mcnt of Act. 
 
 24 it 2.") Vict. c. 9."», 
 
 An Art to repeal certain Enactments which have heen coiiMiliilatid in sercr'if 
 Acts of the present Session, relating to fndirfa/ile (fjfcnres and other 
 Matters. [Cth Auffiixt, \f<a\.] 
 
 'Whereas by six several Acts of the present session of Parliament, 
 relating respectively to ollenccs against the person, malicious injuries to 
 property, larceny, forgery, coining, and accessories ami abcttoi-s, divcre
 
 650 
 
 Repeal of Acts 
 and jmrt^s of 
 Acts mcn- 
 tioni'd in 
 scliiiliil''. 
 
 RcptJiI not to 
 alTcct tlie 
 colonies ill 
 certain cases. 
 
 Rejieal nut to 
 affect offeii'x-s, 
 fic. , cominitteil 
 liefore the 
 cninniencenient 
 of this Act. 
 
 Repeal not to 
 affect any 
 authority to 
 amend re- 
 gister of 
 births, &c. 
 
 Appendix of Statutes. 
 
 Acts and parts of Acts liavo been consolidated and amended, and it is 
 cxpodifut tt) repeal the enactments so consolidated and amended, and 
 certain other enactments : ' he it therefore enacted by the (Queen's most 
 excellent .Majesty, hy and with the advice and consent of the lords 
 spiritual and tem])oral, and commons, in this jjresent Parliament 
 a.sseml)lod, and hy the aiith(jrity of the same, as follows : — 
 
 1 . The several Acts and parts of Acts in the schedule hereto annexed 
 shall continue in force mitil and tin-ou;.^hout the last day of October in 
 the j)resent j'ear, and shall from and after that day be repealed to the 
 extent foUowinii (tliat is to say) : in an}' case where the enactment does 
 not form part of the law of .Scotlan<l, tiien the enactment shall bo 
 wholly repealed, but in any case whore the enactment does form part of 
 the law of Scotland, then the enactment shall be wholly repealed as to 
 every other place, but shall not be repealed as to Scotland, unless other- 
 wise expressly mentioned. 
 
 2. Provided, that where any enactment shall have been extended to 
 any part of Her Majesty's dominions out of tlie United Kingdom by any 
 Act of the Parliament of the United Kingdom or otherwise, the same 
 shall not be repealed as to that i)art of Her Majesty's dominions. 
 
 ."?. Provided also, that every otlcnce which shall have been wholly or 
 partly committed against any of the said Acts or parts of Acts before 
 this Act comes into operation shall be dealt with, inquired of, tried, 
 determined, and })unislicd, and every penalty in respect of any such 
 ollencc shall be recovered, in the same manner as if the said Acts and 
 parts of Acts had not been repealed ; and that every Act duly done, and 
 every warrant and other instrument duly made or gi-anted before this 
 Act comes into operation, shall continue and be of the same force and 
 effect as if the said Acts and parts of Acts had not been repealed ; and 
 that every right, liability, privilege, and protection in respect of any 
 matter or thing committed or done before this Act comes into operation 
 shall continue and be of the same force and effect as if the said Acts and 
 parts of Acts had not been repealed ; and that every action, prosecution, 
 and other proceeding which shall have been commenced before this 
 Act comes into opei-ation, or shall thereafter be commenced in respect of 
 any such matter or thing, may be prosecuted, continued, and defended 
 in the same manner as if the said Acts and ])arts of Acts had not been 
 repealed. 
 
 -k Provided also, that nothing herein contained shall in any manner alter 
 or affect any power or authority given by an}- Act to alter or amend any 
 register of births, baptisms, marriages, deaths, or burials. 
 
 THE SCHEDULE. 
 
 references to Act. 
 
 Extent of Kepeal. 
 
 10 C. 1, Sess. 3, c. 20 (1) 
 7 W. 3, c. 18 (I) ... . 
 2 & 3 Ann. c. 4 ... . 
 
 G Ann. c. 2 (1) 
 6 Ann. c. 30 
 
 The whole. 
 
 Section Four. 
 
 So much of Section Nineteen as relates to 
 
 any forging or counterfeiting therein 
 
 mentioned. 
 So much of Section Seventeen as relates 
 
 to any forging or counterfeiting therein 
 
 mentioned. 
 So much of Section Twenty-six as relates 
 
 to any forging or counterfeiting therein 
 
 mentioned.
 
 24 (fc 25 Vict. G. 95. 
 
 G51 
 
 Eefereiices to Act. 
 
 Exteut of Kt'iieal. 
 
 7 Ann. c. 20 
 
 8 Ann. c. 10 (I) 
 
 8 (Jeo. 1, c. Id (I) 
 
 11 Geo. 1, c. 9 
 
 12 Geo. 1, c. 32 
 3 Geo. 2, c. 4 (1) 
 8 Geo. 2, c. 6 ... 
 
 15 Geo. 2, c. 13 
 17 Geo. 2, c. 11 (I) ... . 
 13 & 14 Geo. 3, c. 14 (1) 
 21 & 22 Geo. 3, c. 16 (I) 
 23 & 24 Geo. 3, c. 22 (I) 
 25 Geo. 3,0. 37 (I) ... . 
 27 Geo. 3, c. 15 (I) ... . 
 35 Geo. 3, c. 06 
 
 37 Geo. 3, c. 26 (I)... . 
 37 Geo. 3, c. 46 ... . 
 
 37 Geo. 3, c. 54 (I) ... 
 
 37 Geo. 3, c. 126 ... . 
 
 38 Geo. 3, c. 53(1)... . 
 
 39 Geo. 3, c. 63 (I) ... . 
 40Geo. 3, c. 9G (I) ... . 
 
 41 Geo. 3, c. 57 
 43 Geo. 3, c. 139 
 
 48 Geo. 3, c. 1 ... 
 
 49 Geo. 3, c. 13 (I) 
 1 Geo. 4, c. 4 ... 
 
 1 Goo. 4, c. 92... 
 3 Geo. 4, c. 116 
 
 4 Geo. 4, c. 54 ... 
 
 5 Geo. 4, c. 25 (I) 
 7 Geo. 4, c. 64... 
 
 7 (k 8 Geo. 4, c. IS 
 7 & 8 Geo. 4, c. 29 
 
 7 & 8 Geo. 4, c. 30 
 
 So much of Section Fifteen as relates to 
 any forging or counterfeiting therein 
 mentioned. 
 
 So much of Section Foin- as relates to any 
 forging or counterfeiting therein men- 
 tioned. 
 
 So much of Section Fijur as relates to any 
 forging or counterfeiting therein men- 
 tioned. 
 
 Section Six. 
 
 Section Nine. 
 
 Section One. 
 
 So much of Section Thirty-one as relates 
 to any forging or counterfeiting therein 
 mentioned. 
 
 Section Twelve. 
 
 Section One. 
 
 The whole. 
 
 Sections Fifteen and Sixteen. 
 
 Sections Twentv-two. 
 
 The whole. 
 
 Section Five. 
 
 Section Three and all the subsequent 
 Sections. 
 
 Tlie whole. 
 
 Section Throe and all the sub^cijuent 
 Sections, 
 
 Section Eleven and all tlie sub.senuent 
 Sections. 
 
 The whole, both as to England and Scot- 
 land, except Section One. 
 
 The wliole. 
 
 Tlie whole, except the last Section. 
 
 So much of Section Five as jjcrpetuatcs 
 the part of the 27 Geo. 3, c. 15, hereby 
 repealed. 
 
 The whole. 
 
 Sections One and Two as to Ireland, and 
 the rest of the Act as to the whole 
 United Kingdom. 
 
 Section Nine. 
 
 The whole. 
 
 The whole. 
 
 Sections One and Two. 
 
 So much of Section Seven as relates to 
 any forging or counterfeiting therein 
 mentioned. 
 
 The whole. 
 
 Section Five. 
 
 Sections Nino, Ten, and Eleven. 
 
 The whole. 
 
 Tlie whole, as to the whole United King- 
 dom. 
 
 The whole.
 
 f;.')2 
 
 Appe rid /.r. of Sta t utes. 
 
 Kcfcn-iifos If) Act. 
 
 y (Jco. 4, c. ni 
 
 I> C!oo. 4, c. 5t (I) 
 
 (!co. 1, c. n.'i (T) 
 
 9 (ico. 1, c. .^n (I) 
 
 10 Ceo. 4, c. 34 (1) 
 
 1 1 Geo. 4 & 1 W. 4, c. GG 
 
 2it3W. 4, c. 4 
 
 2 ct ;5W. 4, c. 34 
 
 2ct3W. 4, c. 75 
 
 2 cfe3 W. 4, c. 123 
 
 3&4W. 4, c. 44 
 
 4 efe ,5 W. 4, c. 2G 
 
 5& 6 W. 4, c. 34(1) .. 
 T) ,k G W. 4, c. 81 
 
 ExUait of Kcpeal. 
 
 k 7 AV. 4, c. 4 
 
 Git 7 W. 4, c. 30 ... 
 
 6 ct 7 W. 4, c. 8G ... 
 
 7 W. 4 & 1 Vict. c. 77 
 
 7 W. 4 ct 1 Vict. c. 84 
 
 7 W. 4 it 1 Vict. c. 8o 
 7 W. 4 & 1 Vict. c. 8G 
 7 W. 4 k 1 Vict. c. 87 
 7 W. 4 it 1 Vict. c. 89 
 7 W. 4 tt 1 Vict. c. 90 
 
 2 & 3 Vict. c. 58 ... 
 
 3 it 4 Vict. c. 97 ... 
 
 4 it r> Vict. c. oO 
 
 'I'lin wliolo. 
 
 ScctioMH 'I'wcnty-tlirco, Twciity-fuur, :iiid 
 Twenty-five. 
 
 The whole, as to the whole United King- 
 dom. 
 
 The whole. 
 
 The whole. 
 
 The whole, cxce])t Section Twenty-one. 
 
 ^I'he wliole. 
 
 The whole, .mb to the whole United King- 
 dom. 
 
 Section Sixteen. 
 
 The will lie. 
 
 The whole. 
 
 Section Two. 
 
 The whole. 
 
 So much as relates to the punishment of 
 any ]ier.son who shall lueak and enter any 
 chuich or chapel, and steal therein any 
 chattel, or, having stolen any chattel in 
 any church or chaj)el, shall break out 
 of the same, and to principals in the 
 second degree and accessories in such 
 ofiences. 
 
 So much as alters and amends that part of 
 the .5 it G Will. 4, c. 81, which isherd-y 
 repealed. 
 
 The whole. 
 
 Section Forty-three. 
 
 So much of Section Three as empowers 
 the court to direct sentence of death to 
 be recorded in cases of murder. 
 
 So much of Sections One and Three as 
 relates to the forging, altering, offering. 
 Tittering, disposing of, or putting off 
 any will, testament, codicil, or testa- 
 mentaiy writing, or any power of at- 
 torney, or other authority therein men- 
 tioned, and to jirincipals in the second 
 degree and accessories before the fact 
 in such offences, and so much of Sec- 
 tions Two and Three as relates to the 
 jiunishment of any offence created by 
 or formerly punishable under any enact- 
 ment in this schedule before mentioned 
 and hereby repealed. 
 
 The whole. 
 
 The whole. 
 
 The whole. 
 
 The whole. 
 
 The whole, except Section Five. 
 
 Section Ten. 
 
 Section Fifteen. 
 
 Sections Two and Three, and so much of
 
 24 d 25 Vict. c. 95. 
 
 G53 
 
 References to Act. 
 
 5 & 6 Vict. c. 28 (I) 
 
 5 & 6 Vict. c. 
 
 39 
 
 
 5 & G Vict. c. 
 
 GG 
 
 
 5 & 6 Vict. c. 
 
 106(1) 
 
 G & 7 Vict. c. 
 
 10 
 
 
 7 & 8 Vict. c. 
 
 62 
 
 
 7 & 8 Vict. c. 
 
 81 
 
 (I)": 
 
 8 & 9 Vict. c. 
 
 44 
 
 
 8 & 9 Vict. c. 
 
 47 
 
 
 8 & 9 Vict. c. 
 
 108(1) 
 
 9 & 10 Vict, c 
 
 . 25 ... 
 
 10 & 11 Vict. 
 
 c. 
 
 66... 
 
 11 & 12 Vict. 
 
 c. 
 
 46 ... 
 
 12 & 13 Vict. 
 
 c. 
 
 11 ... 
 
 12 & 13 Vict. 
 
 c. 
 
 76... 
 
 13 & 14 Vict. 
 
 0. 
 
 72(1) 
 
 13 ik U Vict. 
 
 c. 
 
 88(1) 
 
 14 A: 15 Vict. 
 
 c. 
 
 11 ... 
 
 14 & 15 Vict 
 
 c. 
 
 19... 
 
 14 & 15 Vict 
 
 c. 
 
 92 (I) 
 
 14 cfe 15 Vict 
 
 c. 
 
 100 
 
 16 & 17 Vict. c. 23 .. 
 16 it 17 Vict. c. 30 .. 
 16 it 17 Vict. c. 99 .. 
 16 & 17 Vict. c. 102 
 
 16 & 17 Vict. c. 113 
 
 Extent of Repeal. 
 
 Section Oue as relates to embezzlemeuts 
 by oilicers or servauts of tlie bauk of 
 England. 
 Sections Four, Thirteen, Fourteen, and 
 Fifteen, and so mucli of Section Seven 
 as alters tlie punishment contained in 
 any enactment herel)y repealed, and so 
 much of Section Eighteen as relates to 
 principals in the second degree and 
 accessories before the fact to any of- 
 fence mentioned in the said Sections 
 Four, Thirteen, Fourteen, and Ffteen, 
 or in the said part of the said Section 
 Eighteen hereby I'epealcd. 
 Section Six. 
 
 Sections Nine and Ten. 
 Sections Eleven and Twelve. 
 The whole. 
 Tlie whole. 
 Section Seventy-five. 
 The whole. 
 The whole. 
 Section Eighteen. 
 Tlie whole. 
 The whole. 
 
 Sections Oue, Two, and Three. 
 The whole. 
 The whole. 
 Section Sixty-two. 
 Section Forty-two. 
 Sections One, Two, Six, and Seven. 
 Sections One, Two, Three, Four, Six, 
 
 Seven, Eight, and Nine. 
 Sections Two, Three, Four, and Five. 
 Sections Four, Six, Eight, Eleven, Tliir- 
 tcen. Fourteen, Fifteen, Sixteen, Seven- 
 teen, and so much of Section Five as 
 relates to forging or uttering any in- 
 strument, and so much of Section 
 Twenty-nine as relates to any indecent 
 assault, or any assault occasioning ac- 
 tual liodily harm, or any nttempt to liave 
 carnal knowledge of a girl under twelve 
 years of ago. 
 Section Forty-one. 
 Section One. 
 Section Twelve. 
 
 The whole, as to tiie whole United King- 
 dom. 
 So much of Section Seventy-one as relates 
 to any action which shall be com- 
 menced against any jtorson for anything 
 done in ]iui*suancc of any of the Acts of 
 this Session for consolidating and amend-
 
 051 
 
 Ap/X'Jnh.r oj' SUllulcs. 
 
 HcftTflK't'S t 
 
 . An. 
 
 Kxidll (if 1!.|h;,1. 
 
 
 
 
 
 iiig the Statute Law of 
 
 En^'laiid and 
 
 
 
 
 Ii-C'liui(l roliitiiij^ t(» l.iircci 
 
 IV, Malicions 
 
 
 
 
 Injiii'ics, and Coin. 
 
 
 ]C, S: 17 Vict. 
 
 c. 
 
 i;i2 
 
 Sections Ten and MIcvcn. 
 
 
 17 A: 18 Vict. 
 
 c. 
 
 33 
 
 Section Six. 
 
 
 'JO &, 21 Vict. 
 
 c. 
 
 r)4 
 
 The whole. 
 
 
 2\ & 22 Vict. 
 
 c. 
 
 3 
 
 Secti<>n 'i'eii. 
 
 
 21 it 22 Vict. 
 
 c. 
 
 47 
 
 The whole. 
 
 
 21 it 22 Vict. 
 
 c. 
 
 71) 
 
 Section Three. 
 
 
 21 it 22 Vict. 
 
 c. 
 
 lOG 
 
 Section Fifty. 
 
 
 22 Vict. c. 1 1 
 
 
 
 Secti(jn Ten. 
 
 
 22 it 2:5 Vict. 
 
 c. 
 
 32 
 
 Section Twenty-five. 
 
 
 22 it 2;? Vict. 
 
 c. 
 
 39 
 
 Section Thirteen. 
 
 
 23 it 24 Vict. 
 
 c. 
 
 8 
 
 Tlie whole. 
 
 
 23 it 24 Vict. 
 
 c. 
 
 29 
 
 The whole. 
 
 
 23 it 24 Vict. 
 
 c. 
 
 130 
 
 Section Thirteen. 
 
 
 Interpretation 
 of terms : 
 
 ' Document of 
 title to goods : 
 
 ' Document of 
 title to lands :' 
 
 ' Trustee 
 
 ' Valuable se- 
 curity :' 
 
 24 it 20 Vict. c. 9G. 
 
 An Act to comoUdnte and amend the Statute Law of England and 
 
 Irehnid rclatiiir/ to Larceny and otlur similar OffencfR. 
 
 \i\tU An<jmt,\^^\:\ 
 
 ' Whereas it is expedient to consolidate and amend the statute law of 
 Kn^land and Ireland relating to larceny and other similar oftenccs :' be it 
 enacted by, «tc., as follows : — • 
 
 1. In the interpretation of this Act : 
 
 The term 'document of title to goods' shall include any bill of lading, 
 India warrant, dock wairant, warehouse keeper's certificate, warrant 
 or order for the delivery or transfer of any goods or valuable thing, 
 bou"-ht and sold note, or any other document iised in the ordinary 
 course of business as proof of the possession or control of goods, or 
 authorizing or piu'porting to auth<n-i/e, either by indorsement or by 
 delivery, the possessor of such docmnent to transfer or receive any 
 o-oods therebv represented or therein mentioned or referred to : 
 
 The term 'document of title to lands' shall include any deed, map, 
 ] uper or parchment, written or ]>rinted, or partly written and partly 
 printed, being or containing evidence of the title, or any part of the 
 title, to any real estate, or to any interest in or out of any real 
 estate : 
 
 The term ' trustee ' shall mean a trustee on some express trust created 
 by some deed, will, or instrument in writing, and shall include the 
 heir, or personal representative, of any such trustee, and any other 
 iierson upon or to whom the duty of such trust shall have devolved 
 or come, and also an executor and administrator, and an official mnn- 
 a<'er, assignee, liquidator, or other like officer, acting under any 
 jtresent or future Act relating to joint-stock companies, bankruptcy, 
 or insolvency : 
 
 The term ' valuable security ' shall include any order, exchequer acquit- 
 tance, or other security whatsoever entitling or evidencing the title 
 of any person or body corporate to any share or interest in any pub- 
 lic stock or fimd, whether of the United Kingdom, or of Gre.at 
 Britain or of Ireland, or of any foreign state, or in any fund of any 
 body corporate, company, or society, whether within the United
 
 24 t& 25 Vict. c. 96. G55 
 
 Kingdom or in any fureiga state or countrj^, or to any deposit in any 
 bank, and shall also include any debenture, deed, bond, l)ill, note, war- 
 rant, order, or other security whatsoever fur money or for payment of 
 money, whether of the United Kingdom or of Great Britafn, or of 
 Ireland, or of any foreign state, and any document of title to lands 
 or goods as hereinbefore defined : 
 
 The term ' property ' shall include every description of real and ' Property : ' 
 personal property, money, debts, and legacies, and all deeds and 
 instruments relating to or evidencing the title or right to any 
 property, or giving a riglit to recover or receive any money or 
 goods, and shall also include, not only such property as shall liave 
 been originally in the possession or under the control of any party, 
 but also any property into or fov which the same may have been 
 converted or exchanged, and any thing ac(piired by such conversion 
 or exchange, whether immediately or otherwise : 
 
 For the purposes of this Act, the niglit shall be deemed to commence 'Xi-lit.' 
 at nine of the clock in the evening of each day, and to conclude at 
 six of the clock in the morning of the next succeeding day. 
 
 2. Every larceny, whatever be the value of the property stolen, shall All larcenies 
 be deemed to be of the same nature, and shall be subject to the same to be of the 
 incidents in all respects as grand larceny was before the twenty-first day ^^^ nature, 
 of June, one thousand eight hundred and twenty-seven ; and every 
 
 court whose power as to the trial of larceny was before that time 
 limited to petty larceny shall have power to try every case of larceny, 
 the punishment of which cannot exceed the punishment hereinafter 
 mentioned for simple larceny, and also to try all accessories to such 
 larceny. 
 
 3. Whosoever, being a bailee of any chattel, money, or valuable Bailees frau- 
 security, shall fraudulently take or convert the same to his own use or Julcntly con- 
 the use of anj'- person other than the owner thereof, altliough he shall ^'^''l'"" l.'|"°; 
 not break bulk or otherwise determine the bailment, shall be guilty of hu'cenv"' ' ° 
 larceny, and may be convicted thereof upon an indictment for larceny ; 
 
 but this section shall not extend to any offence punishable on summary 
 conviction. 
 
 4. Whosoever shall be convicted of simple larceny, or of any felony Puuislimeiit 
 hereby made punishable like simple larceny, shall (except in the cases f""" simple 
 hereinafter otherwise provided for) be liable, at the discretion of the '•"■'-■^">- 
 court, to be kept in penal servitude for tlie term of three years, or to bo 
 imprisoned for any term not exceeding two years, witli or without 
 
 hard labour, and with or without solitary confinement, and, if a male 
 under the age of sixteen years, with or without whipping. 
 
 5. It sliall be lawful to insert several counts in tlie same indictment Three lir- 
 
 ao^ainst the same person for any number of distinct acts of stealiu'', not '■"!^""'^ within 
 
 ° ,. ., 1-1 I 1 -ii 1 1 1 • -1 MX niontlis 
 
 exceedmg three, which may liave been conunitteil by bun agauist the ,„.jy i,,. 
 
 same person witliin the space of six months from the first to the last of charge.! in 
 
 such acts, and to proceed thereon for all or any of them. one in«liot- 
 
 G. If upon tlie trial of an}' indictment for larceny it shall ajipcar that ""^■"*- 
 
 the property alleged in such indictment to have been stolen at one time ^^'''^■'■>-' •» »i">i;!o 
 
 was taken at different times, the prosecutor sludl not by reason thereof ^■''""'''' , 
 1 1 . 1 ■ 1 i 1 • I -11 11.... char^je I, ana 
 
 bo recpurcd to elect ujion wiucli taking he will proceed, unle.s.s it shall scver.iltik- 
 
 appear that there were more than three takings, or tiiat more than the ings at iliiFor- 
 space of six months ela^jsed between the tii-st and the last of sucii '•'"^ *■'"•-*•■' ^'■<' 
 takings ; and in either of such last mentioned exses the i)rosccutor .shull l'~*'*^'*- 
 be recpiired to elect to proceed for such number of takings, not exceed- 
 ing three, ;is api»car to have taken place within the period of six month 
 from tlie first to the last of sncli takings. 
 
 7 Wliosocver shall connnit tiie offence of simple laroony after a L.'^«"y ^f'*'' 
 ... r. ,■ 1 1^1 t • »■ I 11 1 , a conviction 
 
 previous conviction for ielony, wiietlier such conviction shall liave taken ((,r felony.
 
 Gr)f; 
 
 Laicony after 
 conviction of 
 nn indii-tiililc 
 inisiicnioaiior 
 under tlii.s 
 Act. 
 
 Liiireny after 
 two summary 
 convictions. 
 
 7 & 8 (leo. 4, 
 CO. 29, 30. 
 
 9 Geo. 4, CO. 
 Sf), 5(3. 
 
 10 & 11 Vict. 
 c. 82. 
 
 11 & 12 Vict, 
 c. 59. 
 
 14 & 15 Vict. 
 c. 92. 
 
 24 & 25 Vict, 
 c. 97. 
 
 rrincijials in 
 the second 
 degree and 
 accessories. 
 
 Abettors in 
 misdemea- 
 nors. 
 
 Abettors iu 
 offences 
 punishable on 
 summary con- 
 viction. 
 
 jdiico \ipon nn iixlictiiicnt, or iiiuler the jiiovisioiis of the Act ])fiKsc(l iu 
 tlu! Kc'ssioii hold ill the eighteenth iinti nineteeiitli years of Queen 
 Victoria, ehii])ter one huiuhed :iinl twenty-six, shall ho hahle, at the 
 discietion of the court, to he kojit in penal servitude for any term not 
 exceediii;^' ten years and not less than tiiree years — or to he imprisoned 
 for any term not exceeding two years, with or without hard lal)our, and 
 with or without solitary confinement, and, if a male under the age of 
 Kixtecn years, with or without whipping. 
 
 8. Whosoever shall commit the oflenco of simple larceny, or any 
 offence hereby made punishahlc, like simple larceny, after having been 
 ]>reviously convicted of any indictable misdemeanor punishalde under this 
 Act, shall be liable, at the discretion of the court, to be ke]tt in j.enal ser- 
 vitude for any term not exceeding seven years and not less tlian three 
 years — or to be impristJiied for any term not exceeding two years, with 
 or without hard Ial)our, and with or without solitary confinement, and, if 
 a male under the age of sixteen years, with or without whipping. 
 
 9. Whosoever shall connnit the offence of simide larceny, or any 
 olVencc hereby made punishable like simple larceny, after having been 
 twice summarily convicted of any of the offences ]mnishalile ujion 
 summary conviction, under the ])rovisions contained in the Act of tlie 
 session held in the seventh and eighth years of King George the Fourth, 
 chapter twenty-nine, or the Act of the same session, chajitcr thirty, or 
 the Act of the ninth year of King George the Foiu'th, cha])ter fifty-five, 
 or the Act of the same year, cha})ter fifty-six, or the Act of the session 
 held iu the tenth and eleventh years of Queen Victoria, chapter eighty- 
 two, or the Act of the session held in the eleventh and twelfth years 
 of Queen Victoria, chapter fifth-nine, or in sections three, four, five, and 
 six of the Act of the session held in the fourteenth and fifteenth years 
 of (Jueen Victoria, chapter ninety-two, or in this Act, or the Act of this 
 session, intituled An Act to consolidate and amend the Statute Law of 
 England and Ireland relating to Malicious Injuries to Property (whether 
 each of the convictions shall have been in respert of an offence of the 
 same description or not, and whether such convictions or either of them 
 shall have been or shall be before or after the passing of this Act), shall 
 be guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept iu 2)cual servitude for any term not 
 exceeding seven years and not less than three years — or to be im- 
 prisoned for any term not exceeding two years, -with or without hard 
 labour, and with or without solitary confinement, and, if a male under 
 the age of sixteen years, with or without whipping. 
 
 Sects, 10 to 97 inclusive, will be found in vol. 2. See Table of Statutes 
 at commencement of 2nd vol. 
 
 98. Iu case of every felony ijuuishable under this Act every pi'incipal 
 in the second degree, and every accessory, before the fact, shall be 
 punishable in the same manner as the principal in the first degree is by 
 this Act punishable ; and every accessory after the fact to any felony 
 punishable under this Act (except only a receiver of stolen property) 
 shall, on conviction, be liable, at the discretion of the court, to be im- 
 prisoned for any term not exceeding two years, with or without hard 
 labour, and with or without solitary confinement ; and every person who 
 shall aid, abet, counsel, or procure the commission of any misdemeanor 
 punishable under this Act shall be liable to be indicted and puuished as 
 a principal offender. 
 
 99. AVhosoever shall aid, abet, counsel, or procure the commission of 
 any offence which is by this Act punishable on summary conviction, 
 cither for every time of its commission, or for the fii-st and second time 
 only, or for the first time only, shall, on conviction before a justice of the 
 peace, be liable, for every first, second, or bubsequcut ofleuce of aiding.
 
 24 (& 25 Vict. c. 96, 657 
 
 abetting, couuselling, or procuring, to the same forfeiture ami punish- 
 ment to which a person guilty of a first, second, or subsequent offence as 
 a principal offender is by tliis Act made liable. 
 
 100. See vol. 1, p. 183. 
 
 101. See vol. 2, p. 489. 
 
 102. See vol. 2, p. 492. 
 
 As to apprehension of offenders, and other proceedings : 
 
 103. Any person found committing any offence punishable, either A iicrson in 
 upon indictment or upon summary conviction, by virtue of this Act, the act of com- 
 except only the offence of angling in the day-time, may be immediatelv "\'"'"o '^"y 
 apprehended without a warrant by any person, and forthwith taken, ^^, ai.i.rclicn.l- 
 together with such property, if any, before some ueighl)ouring justice of ed without a 
 the peace, to be dealt with according to law ; and if any credible witness warrant, 
 shall prove upon oath before a justice of the peace a reasonable cause to Justice, uijon 
 suspect that any person has in his possession or on his premises any groumls of 
 property whatsoever on or with respect to which any offence, punishable '*"^'^'!'T° 
 either upon indictment or upon summary conviction by virtue of this Q.^^^\^ \^^^y 
 Act, shall have been committed, the justice may grant a warrant to grant a search 
 search for such property as in the case of stolen goods ; and any person w;irraut. 
 
 to whom any property shall be offered to l)e sold, pawned, or delivered, Terson to 
 
 if he shall have reasonable cause to suspect that any such offence has whom stolen 
 
 been committed on or with respect to such projjerty, is hereby authorized, ^^7*^^/^ '^ 
 
 and, if in his power, is required to apprehend and forthwith to take seize the' 
 
 before a justice of the peace the party offering the same, together with party offering 
 
 such property, to be dealt with according to law. i''- 
 
 104. Any constable or peace officer may take into custody, without A person 
 warrant, any person whom he shall find lying or loitering in any •^''tenng at 
 highway, yard, or other place, during the night, and whom he shall have '"= ' '^"', , 
 good cause to suspect oi havnig committed, or being about to commit, ^nv felonv 
 any felony against this Act, and shall take such person, as soon a.s rea- a'zainst this 
 sonably may be, before a justice of the peace, to be dealt with according •'^'■^ ^^^y ''" 
 to law. apprehcndcl. 
 
 105. Where any pers(m shall be charged on the oath of a credible Mo«le of corn- 
 witness before any justice of the peace witli any offence punishable on ptiling the 
 
 summary conviction under this Act, the justice may summon the i)crson '*!'•' "'"""■'•" " 
 J J o J 1 iicr>"iis iiiin- 
 
 charged to appear at a time and })lace to be named in such sununons, -j^ii.ji.i^. ^,„ 
 
 and if he shall not appear accordingly, then (upon ])ro(>f of the due .mimniary con- 
 service of the summons upon such person, by delivering the same to viction. 
 him personally, or by leaving the same at his usual place of abode), the 
 justice may either proceed to hear and determine tlie case e.r iniHc, or 
 issue his warrant for ai)prehending such person, and bringing him l)cforo 
 himself or some other justice of the peace ; or the justice before wlioin 
 the charge shall be made may (if he shall so think fit), without any pre- 
 vious summons (unless where otherwise specially directed), issue such 
 warrant, and the justice before whom tiie person charged shall appear or 
 be l)rought shall proceed to hear and determine tlic cusc. 
 
 lOG. Every Slim of money which shall be forfeited on any summary Api'li<'»tion of 
 conviction for the value of any property stolen or taken, or for tho forfeitures an.l 
 amount of any iniurv done (such value or amount to l)c assessed in cao'n P*^'"* """*."" 
 case by the convicting justice), shall be paid to tlie party aggrieveil, ^.^uvictious. 
 except where he is unknown, and in tliat ctvse sucli sum shall be applied 
 in the same manner as a penalty ; and every sum wliich shall be imposed 
 as a penalty by any justice of the i)eacc whctlior in addition to such 
 value or amount or otherwise, shall be i)aid and applied in the same 
 manner as other penalties recoverable before ju.sticcs of tiic peace are to 
 be paid and ap|)licd in cases where the statute imposing tlie sumo con- 
 tains no direction for the payment thereof to any pei-soii : provided, that Piwiso where 
 where several persons sliall join in the commission of the same offence, ^7*^.;!,**^^," 
 
 Vol. III.
 
 cry 9, 
 
 coiiimission of 
 Hjuiic oireiuT. 
 
 If II ]icis(in 
 siiiiiiu.'iril.v 
 convictud sli.iU 
 not i>iiy, i^i'. 
 the justice 
 may commit 
 liiiii. 
 
 Scale of im- 
 lirisonmciit. 
 
 Justice may 
 disciiarge the 
 otfendcr in 
 certain cases. 
 
 A summary 
 conviction 
 shall he a I'ur 
 to any otlici- 
 I'roceciling 
 for the same 
 cause. 
 
 Appeal. 
 
 A J qjc ndir of St a tat est. 
 
 mid sli:ill, \iiioji conviction tliorcof, each bo adjiult^ed to f<jiTeit :i .sum 
 ('(|niv;ilfiit to tlio vahio of tiic i)r<>j)crty or to tlie amount of the iiijtiry, 
 in c'vciy .sncii ciise no fmf lier Hiun shull he jiaid to tlic part}' a^^j^'ricved 
 than such vahic or amount ; aiul the remaining 8>nn or sums f«jrfeited 
 shall lie ajtphed in the same manner as any penally imi)oscd hy a justice 
 of the jjcace as liercinheforc directed to he ajij^jied. 
 
 107. Ill every case <jf a summary conviction under this Act, wliorc the 
 sum which shall be forfeited for the value of the property stolen or 
 taken, or for the amount of the injury done, or which shall be imposed 
 as a penally by the justice, shall not be paid, cither immediately after 
 the conviction, or within such period as the justice shall at the time 
 of the conviction appoint, the convicting justice (unless where otherwise 
 siiccially directed) may commit the offender to the common gaol or 
 house of correction, there to be imprisoned only, or to be imprisoned and 
 kept to hard labour, according to the discretion of the justice, for any 
 term not exceeding two months, where the amount of the sum foifeited 
 or of the penalty im])oscd, or of both (as the case may be), together with 
 the costs, shall not exceed five jtounds, and for any term not exceeding 
 four months where the amount, with costs, shall not exceed ten pounds, 
 and for any term not exceeding six mouths in any other case, the com- 
 mitment to be determinable in each of the cases aforesaid upon payment 
 of tlie amount and costs. 
 
 lOS. Where any person shall be summarily convicted before a ju.sticc 
 of the peace of any offence against this Act, and it shall be a first con- 
 viction, the justice may, if he shall so think fit, discharge the offender 
 from his conviction, upon his making such satisfaction to the ]>arty 
 aggrieved for damages and costs, or either of them, as shall be ascertained 
 by the justice. 
 
 109. In case any person convicted of any off'ence punishable upon 
 summary conviction by virtue of this Act shall have jiaid the sum 
 adjudged to be paid, together with costs, inider such conviction, or 
 shall have received a remission thereof from the crown, or from the lord 
 lieutenant or other chief governor in Ireland, or shall have suffered the 
 imprisonment awarded for nonpayment thereof, or the imprisonment 
 adjudged in the first instance, or shall have been so discharged from his 
 conviction by any justice as aforesaid, in every such case he shall be 
 released from all further or other proceedings for the same cause. 
 
 1 10. In all cases where the sum adjudged to be paid on an}- summary 
 conviction shall exceed five pounds, or the imprisonment adjudged shall 
 exceed one month, or the conviction shall take place before one justice 
 only, any person who shall think himself aggrieved by any such convic- 
 tion may appeal to the next court of general or quarter sessions which 
 shall be liolden not less than twelve daj's after the day of such convic- 
 tion fur the county or place wherein the cause of complaint shall have 
 arisen : provided, that such person shall irive to the complainant a notice 
 in writing of such appeal, and of the cause and matter thereof, within 
 three days after such conviction, and seven clear days at the least 
 before such sessions, and shall also cither remain in custody until the 
 sessions, or shall enter into a recognizance, with two sutticient sureties, 
 before a justice of the peace, conditioned personally to appear at the 
 said sessions and to try such appeal, and to abide the judgment of the 
 com-t thereupon, and to pay such costs ;\s shall be by the court awarded; 
 or if such appeal shall be against any conviction, whereby only a penalty 
 or other sum of money shall be adjudged to be paid, shall deposit with 
 the clerk of the convicting justice such a sum of money as such justice 
 shall deem to be sufficient to cover the sum so adjudged to be paid, 
 together with the costs of the conviction and the costs of the appeal ; 
 and upon such notice being given, and such rccounizauce being entered
 
 24 d 25 Vict. c. 96. 
 
 G59 
 
 into, or such deposit being made, the justice before whom such re- 
 cognizance shall be entered into, or such deposit shall be made, shall 
 liberate such person if in custody ; and the court at such sessions shall 
 hear and determine the matter of the appeal, and shall make such order 
 therein, with or without costs to either party, as to the court shall seem 
 meet, and in case of the dismissal of the appeal or the affirmance of the 
 conviction shall order and adjudge the offender to be punished according 
 to the conviction, and to pay such costs as shall be awarded, and shall, 
 if necessary, issue process for enforcing such judgment ; and in any case 
 where after any such deposit shall have been made as aforesaid the con- 
 viction shall be affirmed, the court may order the sum thereby adjudged 
 to be paid, together with the cost of the conviction and the costs of the 
 appeal, to be paid out of the money de])osited, and the residue thereof, 
 if any, to be repaid to the party convicted ; and in any case where after 
 any such deposit the conviction shall be quashed, the court shall order 
 tlie money deposited to be repaid to the party convicted ; and in every 
 case where any conviction shall be quashed on appeal as aforesaid the 
 clerk of the peace, or other pi-oper officer, shall forthwith endoi*se on the 
 conviction a memorandum that the same has been so ([uashed ; and when- 
 ever any copy or certificate of such conviction shall be made, a cojjy of 
 such memorandum shall be added tiiereto, and shall be sufficient evidence 
 that the conviction has been quashed in every case where sucli copy or 
 certificate would be sufficient evidence of such conviction. 
 
 111. No such conviction, or adjudication made on appeal therefrom, 
 shall be quashed for want of form, or be removed by certiorari into any 
 of Her Majesty's Superior Courts of Record ; and no warrant of com- 
 mitment shall be held void by reason of any defect therein, provided it 
 be therein alleged that the party has been convicted, and there be a good 
 and valid conviction to sustain the same. 
 
 112. Every justice of the peace before wliom anj^ person shall be con- 
 victed of any offence against this Act shall transmit the conviction to 
 the next court of general or quarter sessions which shall be holdcn for 
 the county or place wherein the offence shall have been committed, 
 there to be kept by the proper officer among the records of the court ; 
 and upon any information against any person for a subsequent offence, 
 a copy of such conviction, certified b}^ the proper officer of the court, or 
 proved to be a true copy, shall be sufficient evidence to prove a convic- 
 tion for the former oflfence, and the conviction shall be presumed to have 
 been unappealed against until the contrary he shown. 
 
 113. All actions and prosecutions to be commenced against any 
 person for anything done in pursuance of this Act shall lie laid and 
 tried in the county where tiie fact was committed, and shall bo com- 
 menced within six months after the fact committed, and not otherwise ; 
 and notice in writing of such action and of the course thereof shall be 
 given to the defendant one month at least before the connnencemiMit of 
 tlie action ; and in any such action the defendant may plead the generul 
 issue, and give this Act and the special matter in evidence, at any trial 
 to be had thereupon ; and no plaintiff shall recover in any such action 
 if tender of sufficient amends shall have been made before such action 
 brought, or if a sufficient sum of money sliall have been paid into court 
 after such action brought, by or on behalf of the defendant ; and if a 
 verdict shall pass for tlie defendant, or the plaintiff shall become non- 
 suit, or discontinue any such action after issue joined, or if, upon dc- 
 nuuTcr or otherwise, judgment sliall be given against the plaintiff, the 
 defendant shall recover his full costs us between attorney and client, and 
 have the like remedy for the same as any defendant iias by law in other 
 cases; and though a verdict shall be given for the plaintiff in any sucli 
 action, such plaintiff' shall not have costs against the defendant unless 
 
 No certiorari, 
 
 Convictions to 
 lie returncil to 
 the quarter 
 sessions. 
 
 Venue, in 
 jiroceeilin^ 
 a;::iinst j>or- 
 sons acting 
 uniler this 
 Act 
 
 Notice of 
 action. 
 
 (icncnil 
 issue. &C.
 
 (iCO 
 
 Stealers of 
 ]iroiierf.v in 
 one ]>art of 
 the Unitoil 
 Kili;;ilci!n wlin 
 li;ivo tlio KUinc 
 ill jiiiy otlior 
 l.;irt of till! 
 I ' II i toil Kiii;,'- 
 (loiii, iiiav lie 
 trioil aii.i 
 ]iiinisheil in 
 tliat ii.'irt of 
 the Unitcil 
 Kin^''lom 
 where they 
 have proiierty. 
 
 Offenrcs com- 
 iiiiftod witliin 
 the jurisdic- 
 tion of the 
 Aiiiiuialty. 
 
 Fine and 
 mreties for 
 keepini; the 
 jieace ; in 
 wliat cases. 
 
 Hard labour. 
 
 Polit.ary ron- 
 fineinent and 
 whipping. 
 
 Summary pro- 
 
 A l>i>iii<l I.I' <>/ t^ld/nlis. 
 
 llio jinl-^'e licfmo wliom iIk,- trial shall \>c shall certify liis ai)[.rol>iition of 
 till" action. 
 
 A.s to other matters : 
 
 111. If any person shall have in his posscs.sion in any one part of the 
 United Kin^oloni any chattel, money, valuahle security, or other property 
 whatsoever, which he shall have stolen or otherwise feloniously taken 
 in any other part of tlie United Kingdom, lie may he dealt with, 
 indicted, tried, and punished for larceny or theft in that part of the 
 United Kini^'dom where he shall .so have such projierty, in the same maimer 
 as if he had actually stolen or taken it in that part ; and if any person in 
 any one iiart of the United Kingdom shall receive or have any chattel, 
 money, valuaMe security, or other projierty whatsoever which shall 
 have been stolon or otherwise feloniously taken in any other part of the 
 United Kingdom, such person knowing such property to have l)een 
 stolen or otherwise feloniously taken, he may be dealt with, indicted, 
 tried, and punished for such oflence in that part of the United Kingdom 
 where he shall so receive or have such jn-opcrty, in the same manner as 
 if it had been originally stolen or taken in that part. 
 
 11;-). All indictable ofl'ences mentioned in this Act which shall lie 
 committed within the jurisdiction of the Admiralty of England or Ireland 
 shall be deemed to be offences of the same nature, and liable to the same 
 punishments, as if they had been committed upon the land in England 
 or Ireland, and may be dealt with, inquired of, tried, and determined in 
 any county or place in which the offender shall be apprehended or be in 
 custody, and in any indictment for any such ofience or for being an 
 accessory to any such offence the venue iu the margin shall be the 
 same as if the ofTence had been committed in such county or place, and 
 the un'once itself shall be averred to have been committed 'on the high 
 seas : ' provided, that nothing herein contained shall alter or afl'ect any 
 of the laws relating to the government of Her Majesty's laud or naval 
 forces. 
 
 116. See Vol. 1, p. 67. 
 
 117. Whenever any person shall be convicted of any indictable mis- 
 demeanor punishable under this Act, the court may, if it shall think fit, 
 in addition to or in lieu of any of the punishments by this Act autho- 
 rized, fine the offender, and require him to enter into his own recog- 
 nizances and to find sureties, both or either, for keeping the peace and 
 beino- of good behaviour ; and in case of any felony punishable under 
 this Act the court may, if it shall think fit, i-eqnire the ofteuder to enter 
 into his own recognizances, and to find sureties, both or either, for keep- 
 ing the peace, iu addition to any punishment by this Act authorized : 
 provided, that no person shall be imprisoned under this clause for not 
 finding sureties for any period exceeding one year. 
 
 118. Whenever imprisonment, with or without hard labour, may be 
 awarded for any indictable offence under this Act, the court may 
 sentence the oftender to be imprisoned, or to be imprisoned and kept to 
 hard labour, in the common gaol or house of correction. 
 
 110. Whenever solitary confinement may be awarded for any in- 
 dictable offence under this Act, the court may direct the oflender to be 
 kept in solitary confinement for any portion or portions of his imprison- 
 ment, or of his imprisonment with hard labour, not exceeding one 
 month at any one time, and not exceeding three months in any one 
 year ; and whenever whipping may be awarded for any indictable 
 offence under this Act, the court may sentence the offender to be once 
 privately whipped, and the number of strokes and the instrument with 
 which they shall be inflicted shall be specified by the court in the 
 sentence. 
 
 120. Every ofience hereby made punishable on summary conviction may
 
 1^4 ct- 25 Vict. c. 97. 
 
 bo prosecuted in England in the manner directed by the Act of the session 
 holden in the eleventh and twelfth years of Queen Victoria, chapter 
 forty-three, so far as no provision is hereby made for any matter or 
 thing which may be required to be done in the course of such prosecu- 
 tion, and may be prosecuted in Ireland before two or more justices of 
 the peace, or one metropolitan or stipendiary magistrate, in the manner 
 directed by the Act of the session holden in the fourteenth and fifteenth 
 years of Queen Victoria, chapter ninety-three, or in such otlier manner 
 as may be directed by any Act that may be passed for like purposes ; 
 and all provisions contained in the said Acts shall be applicable to such 
 prosecutions in the same manner as if they were incorporated in this 
 Act : provided, that nothing in this Act contained shall in any manner 
 alter or affect any enactment relating to procedure in the case of any 
 offence punishable on summary conviction within the City of London or 
 the metropolitan police district, or the recovery or application of any 
 penalty or forfeiture for any such offence. 
 
 121. The court before which any indictable misdemeanor against this 
 Act shall be prosecuted or tried may allow the costs of the prosecution 
 in the same manner as in cases of felony ; and every order for the pay- 
 ment of such costs sliall be made out, and the sum of money mentioned 
 therein paid and repaid, upon the same terms and in the same manner 
 in all respects as in cases of felony. 
 
 122. Nothing in this Act contained shall extend to Scotland, except 
 as hereinbefore otherwise expressly provided. 
 
 123. This Act shall commence and take effect on the first day of 
 November, 18G1. 
 
 24 & 2.J Vict. c. 97. 
 
 An Act to consolidate and amend the Statute Law of Enrjiand and 
 Ireland relating to Malicious Injuries to Pro/ierti/. 
 
 [Gth August, 18G1.] 
 
 * Whereas it is ex[)edient to ci^is ilidatc and amend the statute law of 
 England and Ireland relating to malicious injuries to property : ' " 
 enacted by, itc. as follows : — 
 
 Sects. 1 to 10 inclusive will be found in vol. 2. Sec Index to 
 of Statutes at the commencement of that volume. 
 
 Sects. 11 & 12. See vol. 1, p. 308. 
 
 Sects. 13 to 34 inclusive. See vol. 2. 
 
 Sects. 3.5 to 38 inclusive. See vol. 1, i-p. !tOO, UOl, !):i2. 
 
 Sects. 39 to 49 inclusive. See vol. 2. 
 
 Sect. 50. See vol. 3, p. 233. 
 
 Sects. f)l to .j3 inclusive. See vol. 2, pp. 9(')7, 9GS. 
 
 GGl 
 
 cecJings in 
 England may 
 be under the 
 11 & 1-2 Vict, 
 c. 43, and in 
 Ireland under 
 the 14 & 15 
 Yict. c. 93 J 
 
 except in 
 London and 
 nietroijolitan 
 liolice district. 
 
 The costs of 
 the prosecu- 
 tion of uiis- 
 (loiueanor.s 
 a'.'ainst this 
 Act may be 
 allowed. 
 
 Act not to 
 extend to 
 Sc.itland. 
 
 Commence- 
 mcnt of Act. 
 
 be it 
 
 iubk 
 
 J\fali/ig Gunpowder to commit Offences and searching j»r the same. 
 
 54. Whosoever shall make or manufacture, or knowingly have in his Making or 
 possession, any gunpowder or other explosive sulistancc, or any danger- liavinj,' guu- 
 ous or noxious thing, or any machine, engine, instrument, or thing, with^ lvitif'iT,u*'^t to 
 intent thereby or by means thereof to connnit, or for the jairposc of ^^mmit any 
 enabling any other ])crson to connnit, any of tlie felonies in tliis .\ct fdony ftj^iii'iist 
 mentioned, shall be guilty of a niisdemcanor, and being convicted thereof this Act. 
 shall be liable, at the discretion of the court, to be imprisoned fi>r any 
 term not exceeding two years, with or without hard lal)our, and witii or 
 without solitary coniineinent, and, if a male uuilcr the age of sixteen 
 years, wuth or without whii>ping.
 
 0G2 
 
 .IiiNliccs Mi:iy 
 isHUO wiirr.iiitM 
 for Hciiifliiiij^ 
 
 lldllSCS, iVl". 
 
 for siu'h nun- 
 powdcr, i^c. 
 
 A j'jKlKh.r itj Shil II h:s. 
 
 r)."). Any justice of i\\c jicucc of iiiiy county or j)lacc in which any 
 niHchino, cn^'iiic, ini|)lc'iiieiit, or thing, or any gnni)0\v(lcr or other 
 explosive, (lunu'ii'ii^, or ndxiuus Kulistancc, is Huspected to bo made, 
 kept, or carri(.'(l [\iv tiiu j)inpoHe of being used in committing any of the 
 felonies in tiiis Act mentioned, ujjon reasonaldc cause assigned upon 
 oath by any person, may issue a warrant under his hand and seal for 
 searching in the daytime any house, mill, magazine, storehouse, warc- 
 ]»()usc, shop, cellar, yard, wharf, c)r otiier place, or any carriage, waggon, 
 cart, siiip, boat, or vessel, in wliich the same is suspected to be made, 
 kept, or carried for such purpose as hereinbefore mentioned ; and every 
 ])erson acting in the execution of any sucli warrant shall have, for 
 [seizing, removing to proper jdaccs, and detaining every such machine, 
 engine, implement, and thing, and all such gtmpowder, explosive, 
 (langcrt)us, or noxious substances found upon siich search, which he 
 shall have good cause to suspect to be intended to be used in committing 
 au}' such otl'encc, and the l)arrels, packages, cases, and other receptacles 
 in which the same shall 1)0, the same powers and protections which are 
 given to persons searching for unlawful quantities of gunpowder under 
 the warrant of a justice by the Act passed in the session holden in the 
 twenty-third and twenty-fourth years of the reign of Her present 
 ^lajesty, cha[)ter one hundred and thirty -nine, intituled, ' An Act to 
 amend the law concerning the making, keeping, and carnage of gun- 
 powder and compositions of an explosive nature, and conceniing the 
 manufacture, sale, and use of fireworks.' 
 
 Principals in 
 the second de- 
 },'rec and ac- 
 cessories. 
 
 Abottois in 
 niisdciueascrs. 
 
 A person 
 loitering at 
 ni^lit, and 
 suspc(.ted of 
 any felony 
 a;,'ainst this 
 Act, may be 
 ajipreheudod. 
 
 Malice iigaiust 
 owner of 
 l)roperty un- 
 necessary. 
 
 Provisions of 
 this Act shall 
 apply to per- 
 sons in jiosses- 
 sion of the 
 property in- 
 jured. 
 
 Intent to in- 
 jure or defraud 
 
 Oihtr Matters. 
 
 /)G. In tlie case of cverj^ felony punishable under this Act, every 
 principal in the second degree, and every accessory before the fact, shall 
 be punishable in the same maimer as the principal in the first degree 
 is by this Act punishable ; and every accessory after the fact to any 
 felony punishable under this Act shall on conviction he liable, at the 
 discretion of the court, to be impi'isoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary confine- 
 ment ; and every ])crson who shall aid, abet, counsel, or procure the 
 commission of any misdemeanor jtunishable under this Act shall be 
 liable to be proceeded against, indicted, and puni^^hed as a principal 
 offender. 
 
 57. Any constal'le or i)eace officer may take into custody, without 
 warrant, any jierson whom he shall find lying or loitering in any high- 
 way, yard, or other place during the night, and whom he shall have good 
 cause to suspect of having committed or being about to commit any 
 felony against this Act, and shall take such person as soon as reasonably 
 may be before a justice of the peace, to be dealt with according to law. 
 
 08. Every punishment and foi-feiture by this Act imposed on any 
 person maliciously committing any offence, whether the same be punish- 
 able upon indictment or upon summaiy conviction, shall equally apply 
 and be enforced, whether the offence shall be committed from malice 
 conceived against the owner of the property in respect of which it shall 
 be coinmitted or otherwise. 
 
 T)!). Every provision of this Act not hereiid)efore so applied shall 
 apply to every jierson who, with intent to injure or defraud any other 
 person, shall do any of the Acts hereinbefore made penal, although the 
 olfender shall be in possession of the property against or in respect of 
 which such Act shall be done. 
 
 CO, It shall be sufficient in any indictment for any oftonce against 
 this Act, where it shall be necessary to allege an intent to injure or 
 defraud, to allege that the party accused did the act with intent to
 
 24 (i; 25 VlcL c. 97. GG3 
 
 injure or defraud (as the case may be), without alleging an intent to particular 
 
 injure or defraud any particular person ; and on the trial of any such persons need 
 
 offence it shall not be necessary to prove an intent to injure or defraud !'^* '^*! ■*■ j**^.! 
 
 any particular person, but it shall be sufficient to prove that the party u"ent!' ^"^ "^^'" 
 accused did the act charged with an intent to injure or defraud (as the 
 case may be). 
 
 61. Any person found committing any offence against this Act, Persons in the 
 whether the same be punishable upon indictment or upon summary ai.t of coiu- 
 conviction, may be immediately apprehended, without a warrant, by any "'ittii'g any 
 peace officer, or the owner of the property injured, or his servant, or any a''*^,reheivle(l'"^ 
 person authorized by him, and fortliwith taken before some neighbour- without a *^' 
 ing justice of the peace, to be dealt with according to law. warrant. 
 
 62. Wliere any pcr.s m shall be charged on tlie oath of a crc.lible :^Ioae of o:)!- 
 witness before any justice of the peace with any offence punishable on pelling the ap- 
 summary conviction under this Act, the justice may summon the person pc-'i^'ife "f 
 charged to appear at a time and place to be named in such summons ; Ishlueon"^ 
 and if he shall not appear accordingly, then (upon proof of the due summary ci.n- 
 service of the summons upon such person by delivering the same to him viction. 
 personally, or by leaving the same at his usual place of abode), the 
 
 justice may either proceed to hear and determine the case ex parte, or 
 issue his warrant for apprehending such person and bringing him before 
 himself or some other justice of the peace ; or the justice before whom 
 the charge sliall be made may (if he shall so thiidc fit), without any 
 previous summons (unless where otherwise specially directed), issue such 
 warrant ; and the justice before whom the person charged shall ap])ear 
 or be brought shall ])rocced to hear and determine the case. 
 
 G3. Whosoever shall aid, abet, counsel, or procure the commission of AlKittors in 
 any offence which is by this Act punishable on summary conviction, oiTcnccs 
 either for every time of its commission, or for the first and second time l'""'s''*'j'c oa 
 only, or for the first time only, shall, on conviction before a justice of eoink-tiTn 
 the peace, be lial)le, for every first, second, or subsequent offence of 
 aiding, abetting, counselling, or procuring, to the same forfeitiu-e and 
 punishnaent to which a person guilty of a first, second, or subsequent 
 offence as a principal offender is by this Act made liable. 
 
 04. Every sum of money which shall be forfeited for the amount of Api.lic;itio:i of 
 any injury done shall be assessed in each case by the convicting justice, foriViturei an. I 
 and shall be paid to the party aggrieved, except where he is unknown, l"^""''hies upon 
 and in tliat case such sum shall be applied in the same manner a.s a 'vi'"tioiw^ '^'"' 
 penalty ; and every sum which shall be imposed as a penalty by any 
 justice of the peace, wlictlicr in addition to such am<.)unt or otherwise, 
 shall be paid and ai)p]ied in the same manner as other ]tenalties recover- 
 able before justices of the peace are to be paid ami applied in c:\ses 
 Avhcre the statute imposing the same contains no directions for the j)ay- 
 ment thereof to any person : provideil, that where several persons shall Provi.>o where 
 join in the commission of the same offence, and shall, upon conviction .scvenil iM«r- 
 thereof, each be adjudged to forfeit a sum equivalent to the amount son.s join In 
 
 of the iniury done, in every such case no further sum shall bo i)aid <^''"' ""•'"""" "•' 
 
 ■> J .',,•' , , . ,^, .'. sauio offence. 
 
 to the party aggrieved than such vahie or amount ; uud the rcmanung 
 
 sum or sums forfeited shall bo applied in the same manner a.s any 
 
 penalty imposed bj' a justice of the peace is hereinbefore directed to bo 
 
 applied. 
 
 Ga. In every case of a summary conviction under tiiis .\c*, where tlic If a person 
 
 sum which shall be forfeited for the amount of the injury done, or wliich ""•""••'•••ily 
 
 sliall be imposed as a penalty by tiie justice, sliall not lie i»aid, citlicr g|',"||"not ,^.4^, 
 
 immediately after the conviction, or within sucli jjeriod as the justice Ac, the ju-.'-' 
 
 shall, at the time of tlie conviction, ajjpoint, the convicting justice lioo may com- 
 
 (unless where otlierwise specially directed) may commit the offemlcr to >'>'t •'»">. 
 
 the common gaol or house of correction, there to bo imprisoned only, or
 
 G(! I A I'jiciKh.r of Shil iih's. 
 
 to 1)0 iiiiprisoncil and kept, to liai'd liiboiir, according to the diKcrction of 
 the jnst ice, for any term not cxccedini^ two months, where the ainoinit 
 of the sum forfeited, or of tlie penalty imposed, or of both (as the case 
 may he), to,u:ether with the costs, shall not exceed five pounds ; and for 
 any term not exceeding four months where tlie amount, with costs, shall 
 not exceed ten pounds ; and for any term not exceeding six months in 
 any other case ; the commitment to he determinaljle in each of the cases 
 afoi-esaid upon payment of the amount and costs. 
 The jii tico *'*'• Where any person sliall he siimmarily convicted before a justice 
 
 may discliargc of the peace of any oUence against this Act, and it shall i)e a first con- 
 the oireii.ler in victiou, the justice may, if he shall so think fit, discharge the offender 
 cc a in ..uses. fj.yp, ],ij. conviction upon his making such satisfaction to the party 
 aggrieved for damages and costs, or either of them, as shall be ascer- 
 tained by the justice. 
 A sumniaiv ^"' When any person convicted of any offence punishable upon sum- 
 
 conviction" mary couvictiou by virtue of this Act shall have paid the sum adjudged 
 shall lie a liar to be paid, together with costs, under such conviction, or shall have 
 to any other received a remissicMi thereof from the Crown, or the lord lieutenant or 
 proiee. in,, o qj],^,^. chief governor of Ireland, or shall have suffered the imprisonment 
 
 the s;vnje i i i> ^ r- i • ■ i i • i 
 
 cause. awarded tor nonpayment thereof, or the miprisonment awarded m tiie 
 
 first instance, or sliall have been so discharged from his conviction by 
 any justice as aforesaid, he sliall be released from all further or other 
 proceedings for the same cause. 
 
 Appeal. C^- 111 '^11 cases where the sum adjuiiged to be paid on any summary 
 
 conviction shall exceed five pounds, or the imprisonment adjudged shall 
 exceed one month, or the conviction shall take i>lace before one justice 
 only, any person who shall think himself aggrieved by any such convic- 
 tion may appeal to the next court of general or quarter sessions which 
 shall be holden not less than twelve days after the day of such convic- 
 tion, for the county or place wherein the cause of complaint shall have 
 arisen : provided, that such person shall give to the complainant a notice 
 in writing of such appeal, and of the cause and matter thereof, within 
 three days after such conviction, and seven clear days at the least before 
 such sessions, and shall also either remain in custody luitil the sessions, 
 or shall enter into a i-ecognizance, with two sufticient sureties, before a 
 justice of the peace, conditioned personally to appear at the said sessions 
 and to try such appeal, and to abide the judgment of the court there- 
 npon, and to pay such costs as shall be by the court awarded ; or if such 
 appeal shall be against any conviction whereby only a penalty or sxim of 
 money shall be adjudged to be paid, shall deposit with the clerk of the 
 convicting justice such a sum of money as such justice shall deem to be 
 sufficient to cover the sum so adjudged to be paid, together with the 
 costs of the conviction and the costs of the appeal ; and upon such notice 
 being given, and such recognizance being entered into, or such deposit 
 being made, the justice before whom such recognizance shall be entered 
 into, or such deposit shall be made, shall liberate such person if in 
 custody ; and the court at such sessions shall hear and determine the 
 matter of the ajipeal, and shall make such order therein, with or without 
 costs to either pai"ty, as to the court shall seem meet ; and in case of 
 the dismissal of the appeal, or the affirmance of the conviction, shall 
 order and adjudge the otteuder to be })unished according to the convic- 
 tion, and to pay such costs as shall be awarded, and shall if necessary 
 issue process for enforcing such judgment ; and in any case where after 
 any such deposit shall have been made as aforesaid tiie conviction shall 
 be affirmed, the court may order the sum thereby adjudged to be paid, 
 together with the costs of the couvictiou and the costs of the appeal, to 
 be paid out of the money deposited, and the residue thereof, if any, to 
 be repaid to the party convicted ; and in any case where after any such
 
 24 (X* 25 Vict. c. 97. GGJ 
 
 deposit the conviction sliall be quashed, the court shall order the money 
 deposited to be repaid to the party convicted ; and in every case where 
 any conviction shall be quashed on appeal as aforesaid, the clerk of the 
 peace or other proper officer shall forthwith indorse on the conviction a 
 memorandum that the same has been quashed ; and whenever any copy 
 or certificate of such conviction shall be made, a copy of such memo- 
 randum shall be added thereto, and shall be sufficient evidence that the 
 conviction has been quashed in every case where such copy or certificate 
 would be sufficient evidence of such conviction. 
 
 09. No such conviction, or adjudication made on appeal therefrom, No certiorari, 
 shall be quashed for want of form, or l)e removed by certiorari into any *'^- 
 of Her Majesty's Superior Courts of llecord ; and no warrant of com- 
 mitment shall be held void by reason of any defect therein, provided it 
 be therein alleged that the party has been convicted, and there l)e a good 
 and valid conviction to sustain the same. 
 
 70. Every justice of the peace before whom any person shall be con- Convictions to 
 victed of any offence against this Act shall transmit the conviction to ^ returne<l to 
 the next Court of General or Quarter Sessions which shall be holden for ^''^ Quarter 
 the county or place wherein the offence shall have been committed, '■'^■''"^"^• 
 there to be kept by the proper officer among the records of the court ; 
 
 and upon any indictment or information against any person for a sub- How far cvi- 
 sequent offence, a copy of such conviction, certified by the proper '^'-"'■''' '" 
 officer of the court, or proved to be a true cop}-, shall be sufficient cvi- ^^t'"'*-'^'-^-''-''^- 
 dence to prove a conviction for the former offence, and the conviction 
 shall be presumed to have been unappealed against until the contrary 
 be shown. 
 
 71. All actions and prosecutions to be commenced against any person Venue in 
 for anything done in pursuance of this Act shall l)e laid and tried in the proceeding-s 
 county where the fact was committed, and shall be commenced within ''^o''»"st per- 
 six months after the fact committed, and not otherwise ; and notice in '^''"f '"■'V''*'' 
 
 * uiiticr Liiis 
 
 writing of such action, and of the cause thereof, shall bo given to the Act. 
 defendant one month at least before the commencement of tlie action ; Notice of 
 and in any such action the defendant may plead the general issue, and action, 
 give this Act and the special matter in evidence at any trial to be had (Jeneral issue 
 thereupon ; and no plaintiff shall recover in any such action if tender of &«J- 
 sufficient amends shall have lieen made before sxich action brought, or if 
 a sutiicient sum of money sliall have been paid into court after such 
 action brought by or on behalf of the defendant ; and if a verdict shall 
 pass for the defendant, or the jilaintirt' shall liecome nonsuit, or di.scon- 
 tinue any such action after issue joined, or if, upon demurrer or other- 
 wise, judgment shall be given against the iilaintill, the defendant shall 
 recover his full costs as between attorney and client, and have the like 
 remedy for the same as any defendant has by law in other cases ; and 
 though a verdict shall be given for the plaintiff in any such action, sucli 
 plaintiff shall not have costs against the defendant, unless the judge 
 before whom the trial shall bo shall certify his approbation of the 
 action. 
 
 72. All indictable ofTenccs mentioned in tiiis Act whicii shall be com- OiTenocs con - 
 mittcd within the jurisdiction of the Admiralty of J'jigland or Ireland i»iii<-''l »it>iin 
 shall 1)0 deemed to be offences of the same n.atnre and lialile to the same *!""" J"'""'''j"" 
 punisluncnts as if they had been committed upon the land in Kngland Allmirilty. 
 or Irelanil, and may be dealt with, iinpiired of, tried, and <k'tennined in 
 
 any ct)unty or ])lace in England or Ireland in wiiieh the oHemler shall lie 
 a])prehended or be in custody, in the same manner in all res|eets iis if 
 they had been actually committed in that county or place ; and in any 
 indictment for any such olVence, or for being an accessory to sucli an 
 offence, the venue in the margin shall be the .same as if the «>tVenco had 
 been committed in such county or [ilace. and the otlence shall be averred
 
 ('.(■.C. 
 
 Kino iiiid 
 !<urrtii>N for 
 keu|iiii;,' tlio 
 l)nK'c ; in 
 what cases. 
 
 Hani i.ilK.tir. 
 
 Siilitnry con- 
 tMiciiioiit ami 
 \NliiMiing. 
 
 Fuinniary 
 prnceeilings in 
 I'ln^'lanil may 
 be under tlie 
 11 & 1-2 Vict, 
 c. 43, and in 
 Ireland iindur 
 tlie li A ].") 
 Vict. f. 03 ; 
 
 except in Lon- 
 don and the 
 nietrojiolitan 
 jiolicc district. 
 
 The costs of 
 the iiro.sccu- 
 tiou of niis- 
 denieanoi-s 
 against tins 
 Act may be 
 allowed. 
 
 Act not to 
 extend to 
 Scotland. 
 
 Coranience- 
 n;cnt of Act. 
 
 . \ jii>('n<h.r of Sl((lules. 
 
 to liavo boon committed 'on the high Hca.s ; ' provided, that notliing 
 lieroin contained shall alter or allcct any of the laws relating to the 
 government <if Her Majesty's land or navul forces. 
 
 7',\. Wiienever any i)er.son shall be convicted of any indictable mis- 
 denjcanor punishable under this Act, tlie court may, if it shall think fit, 
 in addition to, or in lieu of any of the ])uni8hments by this Act 
 authorized, fnid the oflcndcr, and rcfiuirc him to enter into his own 
 recorjnizances, and to find sureties, both or cither, for keeping the jjcace 
 and being of good behaviour ; and in case of any felony punishable 
 imdor this .Act, the Court may, if it shall think fit, icfpiire the offender 
 to enter into his own recognizances, and to find sureties, b(jth or cither, 
 for keeping the peace, in addition to any j)unishment by this Act 
 authorized : })rovided, that no person shall bo imprisoned imder this 
 clause for not finding sureties for any period exceeding one year. 
 
 74. Whenever imprisonment, with or without hard labour, may be 
 awarded for any indictable offence under this Act, the court may 
 sentence the offender to be imprisoned, or to be imprisoned and kept to 
 hard labour, in the common gaol or house cf correction. 
 
 75. Whenever solitary confinement may be awarded for any indictable 
 offence under this Act, the court may direct the offender to be kept in 
 solitary confinement for any portion or portions of his imprisoimient, or 
 of his imprisonment with hard labom-, not exceeding one month at any 
 one time, and not exceeding three months in any one year ; and whenever 
 whipping may be awarded for any indictable offence under this Act, the 
 court may sentence the offender to be once privately whipped ; and the 
 number of strokes, and the instrunicnt with which they shall be inflicted, 
 shall be specified by the court in the sentence. 
 
 70. Every offence hereby made punishable on summaiy conviction 
 may be prosecuted in England in the manner directed by the Act of the 
 session holden in the eleventh and twelfth years of Queen Victoria, 
 chapter forty-three, so far as no provision is hereby made for any matter 
 or tiling which may be required to be done in the course of such prose- 
 cution, and may be pi'osecuted in Ireland before two or more justices of 
 the peace, or one metropolitan or stipendiaiy magistrate, in the manner 
 directed liy the Act of the session holden in the fourteentli and fifteenth 
 years of Queen Victoria, chapter ninety-three, or in such other manner 
 as may be directed by any Act that may be passed for like purposes, and 
 all provisions contained in the said Acts shall be applicable to such pro- 
 secutions in the same manner as if they were incorporated in this Act : 
 ])rovided, that nothing in this Act contained shall in any manner alter 
 or affect any enactment relating to procedure in the case of any offence 
 punishable on summary conviction within the City of London or the 
 metropolitan police district, or the recoveiy or application of any penalty 
 or forfeiture fur any such offence. 
 
 77. The court before which any indictable misdemeanor against this 
 Act shall be prosecuted or tried may allow the costs of the prosecution 
 in the same manner as in cases of felony ; aud every order for the pfxy- 
 ment of such costs shall be'made out, and the sum of money mentioned 
 therein paid and repaid, upon the same terms and in the same manner 
 in all respects as in cases of felony. 
 
 78. Nothing in this Act contained shall extend to Scotland, except as 
 hereinbefore otherwise expressly provided. 
 
 70. This Act shall commence and take effect on the first day of 
 November, 1801.
 
 24 d; 25 VlcL c. 98. (JG7 
 
 24 & 25 Vict. c. 98. 
 
 An Act to consolidate and amend the Statute Leno of Emjland and 
 Ireland relating to IndktalAe Offences for Forger;/. 
 
 [%th August, ISGI.] 
 ' Whereas it is expedient to consolitlate and amend the statute law of 
 England and Ireland relating to indictable oftences by forgery : ' be it 
 enacted, ifec., as follows : 
 
 Sects. 1 to 48 inclusive will be found in vol. 2. See table of statutes at 
 the conimencement of that vol. 
 
 49. In the case of every felony i)unisl)able under this Act, every ]>iin- Princiijals in 
 cipal in the second degree, and every accessory before the fact, shall be ^''<^ sec-ond 
 punishable in tlie same manner as the princi|)al in tlie first de-ree is bv '^^^S^c and 
 , I • . . -Ill 1 ,• , 1 ,- , ° /. , •' accessories. 
 
 this Act punishable ; and every accessory atler the ftict to any felony 
 
 punishable under this Act sliall on conviction be liable, at the discretion ,i,itieniei-' 
 of the court, to be imprisoned for any term not exceeding two yeans, with nor.s. 
 or without hard labour, and with or without solitary confinement ; aiul 
 every person who shall aid, abet, counsel, or procure the commission of 
 any misdemeanor punishable under this Act shall be liable to be proceeded 
 against, indicted, and punished as a principal offender. 
 
 00. All indictable offences mentioned in this Act which shall be com- Offences com- 
 mitted within the jurisdiction of the Admiralty of England or Ireland mitteil witliiu 
 shall be deemed to be offences of the same nature and liable to the same *.''*^ j"r"*''ic- 
 punishments as if they had been committed upon the land in England or Adnih-altv 
 Ireland, and may be dealt with, in(piired of, tried, and determined in 
 any county or jilace in England or Ireland in wliich tlie offender shall be 
 apprehended or be in custody, in the same manner in all res})ects as if 
 they had been actually committed in that county or place ; and in anv 
 indictment for any such offence, or for being an accessory to such an 
 otfeuce, the venue in the margin shall be the same as if the offence had 
 been committed in such county or place, and the offence shall be averred 
 to have been committed on 'the high seas:' provided that nothing 
 herein contained shall alter or affect any of the laws relating to the 
 c'-overnment of her Majesty's land or naval forces. 
 
 51, Whenever any person sliall be convicted of a misdemeanor under Fine an I 
 this Act it shall be lawful for the court, if it shall think fft, in addition '^'"'••t''-'' f-r 
 to or in lieu of any of the punishments by this Act authorized, to fine the ,1*^1,''''.''' • 
 offender, and to require him to enter into his own recognizances, and to what c:lsi-a 
 find sureties, both or either, for keeping the peace and being of good iie- 
 haviour; and in all cases of felonies in this Act mentioned it shall bo 
 
 lawful for the court, if it shall think fit, to retpiire the offender to enter 
 iuto his own recognizan.es, and to find sureties, both or either, fur keep- 
 ing the peace, in addition to any of the jmiiishments by this Act auth.«- 
 rized : jn'ovidcd, that no person shall be impi-isoned under this clause f.^r 
 not finding sureties for any period exceeding one year. 
 
 52. Whenever imprisonment, with or without hard labour, may lie Hani laLour. 
 awarded for any oll'eiice under this Act, the court may sentence the 
 
 offender to be imprisoned, or to be imprisoned and kept to hard laliour, 
 in the common gaol or house of correction. 
 
 .").). Whenever solitary confinement may l»e awarded for any olVenco S.liiaiy cm- 
 uudor this Act, the court may direct the offender to be kept in solitary ''"<^'"*'"'- 
 confinement for any portion or portions of his imprisonment, or of his 
 imprisonment with hard labour, not exceeding one month at any one 
 time, and not exceeding three months in any one year. 
 
 54. The court before which any indictable misdemeanor against this Tlic costs of
 
 G(J8 
 
 tioii (if mis- 
 ilonii'iiiHir 
 n;;uiii.Ht llli^< 
 Act may lie 
 ull<»vi>il. 
 
 Act, not to 
 cxtciiil til 
 Sciitlitiiil. 
 
 CdiniiioiKv- 
 inciit of Act. 
 
 Interpretation 
 of terms. 
 
 Current gold 
 iinil silver 
 coin. 
 
 Copper coin. 
 
 False or 
 
 counterfeit 
 
 coin. 
 
 Current coin. 
 
 What shall be 
 possession. 
 
 IVnaltv on 
 persons havinj; 
 more than live 
 ]iieces of suoli 
 counterfeit 
 foreijrn coin 
 in their pos- 
 session. 
 
 . \j>j>eiL(h.f nj' Sfii/ntcs. 
 
 .\(( >\\:\\\ lie |ii-o8CcutcHl (»r tried may allow I lie c<jsts of tlio )ii-((.st'r;ii(i(iii 
 ill iIk' saiiR' iiianiicr as in cases dl' IclDiiy ; iUiU every on ler for the j»ay- 
 iiieiit of .siuli cn.sts shall lie made out, and the sum nl" money mentioned 
 tlitroiii paid and rej aid, ii|ion the same tciir.s and in the same manner 
 in all respects as in cases uf felony. 
 
 •")•">. Xothin<^ in this Act contained shall extend to Scotland, except a 
 otlK'rwi.se hereinlieforc expressly ]ii-ovided. 
 
 r»<i. This Act shall cummence and lake cll'cct on the first day of 
 November, ISGl. 
 
 >A S: 
 
 Vict. 
 
 'J 9. 
 
 All A'f III i:>ii<,/i,l,iti: (thiJ (liiKii I du' Stdlidi' LaiK of iJn' rnid'l Kimiiluia 
 <i;/<(lit6( Offences rehxlimj to the Cutn. 
 
 \}\lh Aiujud, KSCl.] 
 
 ' Whereas it is expedient t(j consolidate and amend the statute law of 
 the United Kinti'dom against oflences relating to the coin : ' he it there- 
 fore enacted by, *K.c., as follows : — 
 
 1. In the interpretation of and for the purposes of this Act, the expres- 
 sion 'the Queen's current gold or silver coin' shall include any gold or 
 silver coin coined in any of Her ^Majesty's mints, or lawfully current, l)y 
 virtue of any ])roclamation or otherwise, in any part of Her Majesty's 
 dominions, whether within the United Kingdom or otherwise ; and the 
 expression ' the Queen's copper coin' shall include any copper coin and 
 any coin of bronze or mixed metal coined in any of Her Majesty's mints, 
 or lawfully current, In' virtue of any proclamation or otherwise, in any 
 part of her Majesty's said dominions ; and the expression ' false or coun- 
 terfeit coin resembling or apparently intended to resemble or i>ass for 
 any of the Queen's current gold or silver coin ' shall include any of the 
 current coin which shall have been gilt, silvered, washed, coloured, or 
 cased over, or in any manner altered, so as to lesemble or be ajiparently 
 intended to resemble or jtass for any of the Queen's current coin of a 
 higher denomination; and the exjn-ession 'the Queen's current coin' 
 shall include an}' coin coined in any of Her Majesty's mints, or lawfully 
 current, by virtue of any proclamation or otherwise, in any part of 
 Her Majesty's said dominions, and whether made of gold, silver, copper, 
 bronze, or mixed metal; and where the having any matter in the custody 
 or possession of any person is mentioned in this Act, it shall include, not 
 only the having of it by himself in his })ersonal custody or possession, 
 but also the knowingly and wilfully having it in the actual custody or 
 jiossession of any other person, and also the knowingh' and wilfully having 
 it in any dwelling-house or other building, lodging, apartment, field, or 
 other place, open or inclosed, whether belonging to or occupied by himself 
 or not, and whether such matter shall be so had for his own use or benefit 
 or for that of any other jierson. 
 
 Sects. 2 to 30 inclusive (except s. 'I'o) will be found in the first volume. 
 See the Table of Statutes at the commencement of that volume. 
 
 23. "Whosoever, without lawful authority or excuse (the proof whereof 
 shall lie on the ])arty accused), shall have in his custody or possession 
 any greater number of jtieces than five pieces of false or countei feit coin 
 resembling or apparently intended to resemble or pass for any gold or 
 silver coin of any foreign prince, state, or country, or any such copper or 
 other coin as in the last preceding section mentioned, shall, on conviction 
 thereof before any justice of the peace, forfeit and lose all such false and 
 counterfeit coin, which shall be cut in pieces and destroyed by order of 
 such justice, and shall for evei'y such otience forfeit and jiay any sum of 
 money not exceeding forty shillings nor less than ten shillings for every 
 such piece of false and counterfeit coin which shall be found in the cus-
 
 24 d 2r) Vicf. c. 90. Ge<d 
 
 tody or possession of such person, one moiety to the informer, and tlie 
 other moiety to the poor of the parish where such ollence sliall be com- 
 mitted ; and in case any such penalty shall not ])e furtiiwitli paid it shall 
 be lawful for any such justice to commit the person wlio shall have Ijccn 
 adjudged to pay the same to the common gaol or house of correction, 
 there to be kept to hard labour for the space of three months, or until 
 such penalty shall be paid. 
 
 31. It shall be lawful for any person whatsoever to ai)[trchcnd any Any rcrson 
 person who shall be found committing any indictable ottence, or any may ai'prc- 
 high crime and offence, or crime and offence, against this Act, and to '"^'"' :>".v per- 
 convey or deliver him to some peace officer, constable, or officer of police, ■'^P'^""'"."''' 
 in order to his being conveyed as soon as reasonably may be before a aieUiMe of-' 
 justice of the peace or some other proper oificer, to ho dealt with fence against 
 according to law. tliis Act. 
 
 32. No conviction for any offence punis!ial)]c on summaiy conviction Xo certiorari, 
 under this Act shall \)e quashed for want of form, or be removed by &c. 
 certiorari into any of Her Majesty's Superior Courts of Record ; and no 
 
 warrant of commitment shall be held void by reason of any defect therein, 
 provided it be tlicrein alleged that the ])arty has been convicted, and 
 there be a valid conviction to sustain the same. 
 
 33. All actions and prosecutions to be commenced against any person Venue in pro- 
 for anything done in pursuance of this Act shall, in England or Ireland, cceilings 
 
 be laid and tried in the county where the fact was committed, and shall, <'ig''"'=*^ l"-''"- 
 in England, Ireland, or Scotland, be commenced within six months after ^''"f '^tl'"*'\-t 
 the fact committed, and not otherwise ; and notice in writing of such ^, . 
 action and of the cause thereof shall be given to the defendant or action, 
 defender one month at least before the commencement of the action ; 
 and in any such action b)-ought in England or Ireland the defendant General i.ssue. 
 may plead the general issue, and give this Act and the sj)ecial matter in 
 evidence, at any trial to be had thereupon, and in Scotland the defender 
 may insist on all relevant defences; and no plaintiff or jnirsucr shall Tender of 
 recover in any such action if tender of sufficient amends shall have aincnds, kc. 
 been made before such action brought, or if a sufficient simi of monev 
 shall have been paid into court after such action brought, by or on 
 behalf of the defendant or defender ; and if, in England or Ireland, a 
 verdict shall pass for the defendant, or the plaintitf shall become non- 
 suit, or discontinue any such action after issue joined, or if, upon de- 
 murrer or otherwise, judgment shall be given against the plaintiff, or if, 
 in Scotland, the verdict shall be for the defender, or if the pursuer 
 shall abandon the action, or the court shall dismiss it as irrelevant or 
 improperly laid, in every such case the defendant or defender shall 
 recover his full costs as between attorney and client, and have the like 
 remedy for the same as any defendant or defender has by law in other 
 cases; and though a verdict shall i)e given for the ])laintiir or pui"suer 
 in any such action, such ])laiuti(r or pursuer shall not have costs again.st 
 the defendant or defender, unless the judge Itefore whom the trial shall 
 be siiall certifv his appi'obation of tlie action. 
 
 Sees. 34 to 10, inclusive, will i)ef<iuud in vol. 1. Sec Table of Statutes 
 at commencement of tliat vol. 
 
 41. Every offence hereby made ])unishable on summary conviction SumnwrA- pro- 
 may be prosecuted in England in the maimer directed by the Act of the coc.linp< in 
 session liolden in the eleventh and twelfth ycai-s of (i^uecn Vit torin, K">.'l!"i<l '";«y 
 chapter forty-three, and may be jirosccuteil in Ireland before two or nmro l' j 'v:""]'7viM 
 justices of the peace, or one metropolitan or stipendiary magistmto, in o. 4:<. nn<l in 
 the manner directed bj- the Act of the session holden in tlie fourteenth Ivelnn<l im.lcr 
 and fifteenth years of (Jueen Victoria, chaj)ter ninety-tlirco, or in kucIi <j>c H & 15 
 other manner as may be directed liy any Act that may be jins.scd for like ^**^*" *^' ''''' 
 purposes ; and all ja-ovisions contained in the said Acts shall be
 
 (170 
 
 Kxfc]il ill 
 Loniloii ami 
 the iiictn)])!)- 
 litiui ])olico 
 (liHtrict. 
 
 t'o8t.s of pro- 
 
 HCCUlioilH. 
 
 Comnicncc- 
 incnt of Act. 
 
 ApiK'ndix of Statutes, 
 
 nii|plic)ililo to 8U(li prosecutions in tlic Hfiino manner as if they were 
 incDrponitutl in this Act : provided, that nothing in this Act contained 
 sliall in any niiinner alter or ad'ect any enactment rehiting to jjrocednre 
 in the case of an}' oHence ])unishal)le on sumniaiy conviction within the 
 (.'ilv ol" London or the nietr.)poHtan jxdicc district, or the recovery or 
 apphciil ion of any ])enalty or forfeiture for any such offence. 
 
 Ii'. Ill 111! jirosecutions for any offence against this Act in England, 
 uliich shall he conducted under the direction of the solicitors of Her 
 ]\lajcsty's treasury, the court before which such offence shall be prose- 
 cuted or tried shall allow the expenses of the pro.secution in all respects 
 as in cases of felony ; and in all i)rosecuti(jns for any such (iflence in 
 Kngland which shall not be so conducted it shall be lawful for such 
 court, in case a conviction shall take place, but not otherwise, to allow 
 the oxjienscs of the prosecution in like manner ; and every order for the 
 ]i:iynient of such costs shall be made out, and the sum of money men- 
 tioned therein })aid and repaid, upon the same terms and in the .same 
 manner in all respects as in cases of felony. 
 
 -13. This Act shall commence and take efTect on the first day of 
 November, 18G1. 
 
 21 & 25 Vict. c. 100. 
 
 An Ad to consolidate and amend the Stat ute Latv of Enfjland and Ireland 
 rdating to Ofences against the Person. 
 
 [<oth August, 18G1.] 
 
 ' Whereas it is expedient to consolidate and amend the statute law of 
 England and Ireland relating to offences against the person ; ' be it 
 enacted by kc, as follows : 
 
 Sees. 1 to 50), inclusive, will be found in veil. 1. See the Table of 
 Statutes at the commencement of that volume. 
 
 Sec. 57. See vol. 3, p. 264. 
 
 Sees. 68 to 65, inclusive, will be found in vol. 1. See Table of 
 Statutes at the commencement of that volume. 
 
 A person 
 loitering at 
 night, and 
 suspected of 
 any felony 
 against this 
 Act, may be 
 aiii>ichcndcd. 
 
 Punishment of 
 ]irincipals in 
 the second 
 degree, and 
 accessories. 
 
 (^ITenccs com- 
 mitted within 
 the jurisdic- 
 
 Other Matters. 
 
 (jQ. Any constable or peace officer may take into custody, without a 
 warrant, any person whom he shall find lying or loitering in any 
 highway, yard, or other place during the night, and whom he shall have 
 good cause to suspect of having committed or being about to commit 
 any felony in this Act mentioned, and shall take such person as soon as 
 reasonably may be before a justice of the jjcace, to be dealt with accord- 
 ing to law. 
 
 67. In the case of every felony punishable under this Act, every 
 ]irincipal in the second degree, and every accessory before the fact, 
 shall be punishable in the same manner as the principal in the fii*st 
 degree is by this Act j)unishable ; and every accessory after the fact to 
 any felony punishable under this Act (except murder) shall be liable to 
 be imj)risoned for any term not exceeding two years, with or without 
 hard labour ; and every accessory after the fact to murder shall be 
 liable, at the discretion of the court, to be kept in penal servitude for 
 life or for any term not less than three years, — or to be imprisoned for 
 any term not exceeding two years, with or without bard labour ; and 
 whosoever shall counsel, aid, or abet the commission of any indictable 
 misdemeanor punishable under this Act shall be liable to be proceeded 
 against, indicted, and punished as a principal offender. 
 
 68. All indictable offences mentioned in this Act which shall be com- 
 mitted within the jurisdiction of the Admiralty of England or Ireland 
 shall be deemed to be offences of the same nature and lial)le to the same
 
 24 tC- 25 Vict. c. 100. G71 
 
 punishments as if they bad been committed upon the bind in England tion of the 
 or Ireband, and may be dealt with, inquired of, tried, and determined in Admii-alty. 
 any county or place in England or Ireland in which tbc ofiender shall 
 be apprcliended or be in custody, in tlie same manner in all respects as 
 if they had been actually committed in that county or place ; and in 
 any indictment for any such oftence, or for being an accessory to such an 
 ofience, the venue in the margin shall be the same as if the offence had 
 been committed in such county or place, and the offence shall be averred 
 to have been committed ' on the high seas : ' provided, that nothing 
 herein contained shall alter or affect any of the laws relating to the 
 government of Her Majesty's land or naval forces. 
 
 69. Whenever imprisonment, with or without hard labour, may l)e lhn>\ lalwuir 
 awarded for any indictable offence under this Act, the court may senfenco '" ^^"'l ""^ 
 the offender to be imprisoned, or to be imprisoned and kept to hard ^"'"•'*'^ ?^ 
 labour in the common gaol or house of correction. 
 
 70. Whenever solitary confinement may be awarded for any oflencc Solitary «on- 
 under this Act, the court may direct the offender to be kept in solitary tincK^/'t "I'l'l 
 confinement for any portion or portions of any imprisonment, or of any ^^ "1'1""<>'- 
 imprisonment with hard labour, which the court may award, not ex- 
 ceeding one month at any one time, and not exceeding three months 
 
 in any one year ; and whenever whipping may be awai'ded for any 
 offence under this Act, the court may sentence the offender to be once 
 privately whipped, and the number of strokes and the instrument 
 with which they shall be inflicted sliall be specified 1)y the court in 
 the sentence. 
 
 71. Whenever any person shall be convicted of any indictable 'mis- Fine an.l 
 demeanor punishable under this Act, the court may, if it shall think ^"'"'^V*''^ |'"" 
 fit, in addition to or in lieu of any punishment by this Act autiiorizcd, ,,e:icc '^ in ° 
 fine the ofiender, and require him to enter into his own recognizances, what cusos. 
 and to find sureties, both or either, for keeping the jteace and being of 
 
 good behaviour ; and iu c.ise of any felony punishaldc under this Act 
 otherwise than with death the court may, if it shall think fit, ro(]iure 
 the ofiender to enter into his own recognizances and to find sureties, both 
 or either, for keeping the peace, in addition to any punishment liy 
 this Act authorized : i)rovided, that no person shall l»e imprisoned fi»r 
 not finding sureties under this clause for any period exceeding one 
 year. 
 
 72. No summary conviction under this Act shall be quashed for want No ccrtinnrl, 
 of form, or be removed by certiorari into au}'^ of Her Majesty's Superior **•'• 
 Courts of Itecord ; and no warrant of connnitmcnt shall 1)C lield void 
 
 by reason of any defect therein, ])rovided it be therein alleged that the 
 party has been convicted, and there be a gooil and valid conviction to 
 sustain the same. 
 
 73. Where any complaint shall be made of any ofience against sec- <Jiiii-.ii;iiis an.i 
 tion twenty-six of this Act, or of any bodily injury infiicted upon any ?V '^," "^'"i' Y, 
 ])ers()n under the age of .sixteen years, for wliich the party connnit- j,r„.slv»iic in 
 ting it is lialde to be indicted, and the circumstances of which «)tfonco certain i-.usoh 
 amount, in point of law, to a felony, or an attempt to commit a felony, "f <'ffonccj« 
 
 or an assault with intent to commit a felony, and two justices of tlio 1^7/'"**^ * 
 peace before whom such complaint is heanl .shall cirtifv tuidor tljoir 
 hands that it is necessary for the purposes of public justice that the prose- 
 cution shoidd be conducted by the guardians of the union or place, or, 
 where there are no guardians, by the overseers of tiio poor of the place, in 
 wdiicli the offence shall bo charged to have been comniitte<l. siich 
 guardians or overseers, as the case may be, upon jieraonal service of such 
 certificate or a duidicate thereof upon the clerk of such guardians nr 
 up(m any one of such ovei-seers, shall conduct the prosecution, an<l shall 
 pay the costs reasonably and properly incurred by them therein (so far
 
 Cn-2 
 
 CostH of jiro- 
 Kcciition. 
 
 Cliik of 
 ;{iiai'<liniiM may 
 
 lit) liollllll OVtT 
 
 to luostrulo. 
 
 On ft convic- 
 ti< II for iiH- 
 Ki\ilt the 
 coMft may 
 on I or jiuy- 
 nieiit of tlic 
 proscL'utoi's 
 costs liy the 
 (Icfciulaiit. 
 
 Such costs 
 may lie Icvicil 
 l>y liif-.trcss. 
 
 Summary 
 ]>rocco(liiigs 
 ill Kiiglaml 
 may bo unilcr 
 the 11 & 12 
 Vict. c. i'li, aiiJ 
 in Ireland 
 under the 
 11 & 15 Vict. 
 c. 93. 
 
 K.xcciit in Lon- 
 don and the 
 inctrojiolitan 
 liolii'o district. 
 
 The costs of 
 the prosecu- 
 tion of misde- 
 meanors 
 ajjainst this 
 Act may be 
 aUowed. 
 
 Act not to 
 extend to 
 Scotimd. 
 
 Commcnce- 
 luent of Act. 
 
 . \ jijx'ltih.r of Sfdf ilfcs. 
 
 ns the Riinu' sliall net \>v ullnwccl to tlicin iiiuItT any onlor of ftiiy court) 
 out of tlic coiiiiiKiu fiiml of the union, or out of the funds in the hands 
 (d' the ^'iiardian.s or overseers, as the ea.sc niay he ; and, where there i.s a 
 hoard iif guardians, the clerk or some other ofheer of the luiion or j>hic<', 
 and, wliere there is no l)oard of guardian.s, one of the overseers of the 
 ])0()i', niav, if such justices think it necessary for (he jjurpo.ses of pulilic 
 justice, he bound over to prosecute. 
 
 74. Where any person shall he convicted on ;uiy indictment of uny 
 nssault, whether with or witiiout battery and wounding, or either of 
 them, such person may, if the court think fit, in addition to any sentence 
 which the court may deem i)roper for the offence, Ije adjudged to j>ay to 
 the jirosecutor his actual and necessary costs and e.xpen.ses of the prose- 
 cution, and such moderate allowance for the lo.ss of time as the court 
 shall by affidavit or other inquiry and examination ascertain to be 
 loasonablo ; and, uidess the sum so awarded shall be .sooner paid, the 
 offender shall be im])risoncd for any term the court shall award, not ex- 
 ccetling three mouths, in addition to the term of impri.sonmcnt (if any) 
 to which the offender may be sentenced for the off'ence. 
 
 7^). The court may, by warrant imdcr hand and seal, order such sum 
 as shnll be so awarded to be levied by distress and sale of the goods and 
 chattels of the off'cnder, and paid to the prosecutor, and that the sur- 
 plu.s, if any, arising from such sale, shall be paid to the owner ; and in 
 case such sum shall be so levied the imprisonment awarded until payment 
 of such sum shall thereupon cease. 
 
 70. Every offence hereby made pmiishable on summary conviction 
 may be prosecuted in Kngland in the manner directed bj' the Act of 
 the session holdenin the eleventh and twelfth years of Queen Victoria, 
 cha]iter forty-three, and may be prosecuted in Ireland before two or 
 more justices of the peace, or one metropolitan or stipendiary magis- 
 trate, in the manner directed by the Act of the session holden in the 
 fourteenth and fifteenth years of Queen Victoria, chapter ninety-three, 
 or in such other manner as may be directed by any Act that may be 
 jiasscd for like pur])Oses ; and all pjrovisions contained in the said Acts 
 shall be applicable to such prosecutions in the same manner as if they 
 were incorporated in this Act : provided, that nothing in this Act con- 
 tained shall in any manner alter or affect any enactment now iu force 
 I'clating to procedure, in the case of any offence pninishable on siunmary 
 conviction, within the City of London or the metropolitan police district, 
 or the recovery or application of any penalty or forfeiture for any such 
 offence. 
 
 77. The court before which any misdemeanor indictable under the 
 provisions of this Act shall be prosecuted or tried may allow the costs 
 of the prosecution in the same manner as in cases of felony ; and every 
 order for the payment of such costs shall be made out, and the sum of 
 money mentioned therein paid and repaid, upon the same terms and in 
 the same manner in all respects as in cases of felony. 
 
 78. Nothing in this Act contained shall extend to Scotland, except as 
 hereinbefore otherwise expressly provided. 
 
 70. This Act shall commence and take effect on the first day of Novem- 
 ber, 1861. 
 
 •27 <k 28 Vict. c. 47. 
 
 I'j & 17 Vi: 
 
 An Act to amend the Penal SeyvitiiJe Acts. 
 
 [2oth July, 1864.] 
 
 'Whereas two Acts were passed, the one chapter ninety-nine in the 
 session of the sixteenth and seventeenth yeai-s of the reign of Her present
 
 27^28 Vict. G. 47. GTS 
 
 Majesty, and the other chapter three in the session of the twentieth and 20 & 21 Vict, 
 twenty-first years of the same reign, liaving for their object the substitu- c- 3. 
 tion of other punishments in heu of transportation : And whereas it is 
 expedient to amend the said Acts : ' be it enacted by the Queen's most 
 excellent Majesty, by and with the advice and consent of the lords 
 spiritual and temporal, and commons, in this present Parliament assem- 
 bled, and by the authority of the same, as follows : — 
 
 1. This Act shall be construed as one with the above-mentioned Acts, Short titles, 
 and the said Acts, together with this Act, may Ite cited for all purposes 
 
 as the Penal Servitude Acts, 1853, 1857, and ISGi, and each of the said 
 Acts may be cited as the Penal Servitude Act of the year in which it was 
 passed. 
 
 Sentences of Penal Servitude. 
 
 2. No person shall be sentenced to penal sei-vitude in respect to any Length of 
 offence committed after the passing of this Act for a period of less than senteuccs, 
 five years, and where under any Act now in force a period of less than l"^"^' ^*^''^''" 
 five years is the utmost sentence of penal servitude that can be awarded, " °' 
 
 a period of five years shall, in respect to any offence committed after the 
 passing of this Act, in such Act be substituted for the less period ; and " 
 where under any Act now in force a period of either less or more than 
 five years may be awarded as a sentence of penal servitude, the least 
 sentence of penal servitude that can be awarded under that Act shall, 
 in respect to any offence committed after the passing of this Act, be a 
 period of five yeai's ; and where any person shall on indictment be con- 
 victed of any crime or offence punishable with penal servitude, after 
 having been previously convicted of felony, or, in Scotland, of any 
 crime (whether such previous conviction shall have taken ])lace upon an 
 indictment or under the provisions of the Act passed in the eighteenth 
 and nineteenth of Victoria, chapter one hundred and twenty-six), the 
 least sentence of penal servitude that can be awarded in such case shall 
 be a period of seven years. 
 
 Convict Prisons. 
 
 3. One of Her Majesty's principal secrctai-ies of state in Great P.ritain, runishmcnt of 
 and the lord lieutenant or other chief governor in Ireland, may, by war- offcnoca in 
 rant under his hand and seal, empower any two or more justices of the convict 
 peace, to be named in such warrant, acting for any county in which a ^' " 
 prison for the reception of convicts under sentence of penal servitude is 
 
 situate, to order, from time to time, the infliction of corporal punishment 
 on any convict confined in such prison, for an otVcncc connnitted by such 
 convict in such ])rison, and against the disci))]ine thereof; and any two or 
 more justices of the peace thus empowered shall have the same power 
 of adjudicating on such offences, and of ordering the infliction of such 
 punishment, to be exercised under the same conditions as one of the 
 directors of convict prisons would have, and no greater. 
 
 Licences. 
 
 4. A licence granted under the said Penal Servitude Acts, or any of Forfeiture 
 them, may be in tlic form set forth in Schedule (A.) to this Act annexed, liccnco. 
 and may be written, printed, or lithographed. If any liolder of a liccnco 
 granted in the form set forth in tiio said Schedule (.V.) is convicted, 
 
 either by the verdict of a jury, or u])on his own confession, of any 
 offence for which he is indicted, Iiis licence shall be forthwith forfeited 
 by virtue of such conviction ; or if any Imlder of a licence granted under 
 the said Penal Servitude Acts, or any of them, who shall be at largo in
 
 OfTenccs hy 
 lioKlers of a 
 licence. 
 
 Apprehension 
 of holder of 
 licence with- 
 out warrant. 
 
 Summnry 
 puuishinent 
 of offences. 
 
 VTlicrc holder 
 of liocnco is 
 suniHiarily 
 convioted, 
 convicting 
 
 Ap2'>c ndix of St atutes. 
 
 tlic T'^nitcd Kiii^'doni, shall, unless prevciitod hy illness or other unavoid- 
 fthle ciuiso, full to report ('/) hinisell" jicrsoniilly, if in (Jreat I'ritain to the 
 chief police station of the l)orou<;h or police division, and if in Ireland to 
 the eonstahulary station (jf the locality, to which he may ^o within three 
 days after his arrival therein, and bcin^ a male 8uh8cc|ucntly once in each 
 month, at such time and place, in such manner, and to such person as 
 the chief officer of the constabulary force to which such station belonga 
 shall appoint, or shall change his residence from one ])olicc district to 
 another without having previously notified the same to the police or con- 
 stabidary station to which he last rejiorted himself, he shall be deemed 
 guilty of a misdemeanor, and may be summarily convicted thereof, and 
 Ills licence shall be forthwith forfeited Ijy virtue of such conviction, 
 but he shall not be liable to any other punishment by virtue of such 
 conviction. 
 
 5. If any holder of a licence granted in the form set forth in the said 
 Schedule (A.) — 
 
 1. Fails to pi'oduce his licence when required to do so by any judge, 
 
 justice of the peace, sheriff', sheriff substitute, police or other 
 magistrate before whom he may be brought charged with any 
 offence, or by any constable or officer of the police in whose cus- 
 tody he maybe, and also fails to make any reasonable excuse why 
 he does not produce the same ; or 
 
 2. Breaks any of the other conditions of his licence by an act that is 
 
 not of itself punishable either upon indictment or upon summary 
 
 conviction ; 
 he shall be deemed guilty of an offence punishable summarily by impri- 
 sonment for any period not exceeding three months, with or without hard 
 labour. 
 
 6. Any constable or police officer may, without warrant, take into cus- 
 tody any holder of such a licence whom he may reasonably suspect of 
 having committed any offence, or having broken any of the conditions of 
 his licence, and may detain him in custody until he can be taken before 
 a justice of the peace or other competent magistrate, and dealt with 
 according to law. 
 
 7. In England and Ireland any offence imder this Act punishable sum- 
 maril)' may be prosecuted summarily before two or more justices ; as to 
 England, in manner directed by an Act passed in the session holden in 
 the eleventh and twelfth years of the reign of Her Majesty Queen 
 Victoria, chapter forty-three, intituled ' An Act to facilitate the perform- 
 ance of the duties of justices of the peace out of sessions within England 
 and Wales with respect to summary convictions and orders,' or any Act 
 amending the same ; and as to Ireland, in manner directed by the Act 
 passed in the session holden in the fourteenth and fifteenth years of the 
 reign of Her Majesty Queen Victoria, chapter ninety-three, intituled ' Au 
 Act to consolidate and amend the acts regulating the proceedings of petty 
 sessions, and the duties of justices of the peace out of quarter sessions in 
 Ireland, or any Act amending the same.' 
 
 In Scotland any offence under this Act punishable summarily may be 
 ])rosecuted upon summary conviction at the instance of the procurator 
 fiscal before any sheriff or sheriff substitute, or before any two justices of 
 the county, or before the magistrates or any police magistrate of the burgh 
 in which the offence is committed. 
 
 8. Where any holder of a licence granted m the form set forth in the 
 said Schedule (A.) is convicted of an offence ]HUiishable summarily under 
 this or any other Act, the justices, sheritr, sheriff substitute, or other magis- 
 trate convicting the prisoner shall without delay forward by post a certi- 
 
 (n) See 34 & 35 Vict. c. 112, s. 21, post, p. 69S.
 
 27 (& 28 Vict. c. 47. 
 
 ficate ill the form given in Schedule (B.) to this Act annexed, if in England 
 or Scotland to one of Her Majesty's principal secretaries of state, if in 
 Ireland to the lord lieutenant or other chief governor of Ireland, and 
 thereupon the licence of the said holder may be revoked in manner pro- 
 vided by the said Penal Servitude Acts. 
 
 9. Where any licence granted in the form set forth in the said Schedule 
 (A.) is forfeited by a conviction of any indictable offence, or is revoked in 
 pursuance of a summary conviction under this Act or any other Act of 
 Parliament, the person whose licence is forfeited or revoked shall, after 
 undergoing any other punishment to which he may be sentenced for the 
 offence in consequence of which his licence is forfeited or revoked, further 
 undergo a term of penal servitude equal to the portion of his term of 
 penal servitude that remained unexpired at the time of his licence being 
 granted, and shall, for the purpose of his undergoing such last-mentioned 
 punishment, be removed from the prison of any county, borough, or place 
 in which he may be confined, to any prison in whicli convicts under sen- 
 tence of penal servitude may lawfully be confined, by warrant under the 
 hand and seal of any justice of the peace of the said county, borough, or 
 place, and shall be liable to be there dealt with in all respects as if such 
 term of penal servitude had formed part of his original sentence. 
 
 10. Provided always, that it shall be lawful for Her Majesty, or for the 
 lord lieutenant or other chief governor in Ireland, whenever they shall 
 respectively think fit, to grant from time to time to convicts under sen- 
 tence of penal servitude, licences in any other form different from that set 
 forth in Schedule (A.), which they may respectively consider it expedient 
 to adopt, and containing other and different conditions ; and sucli last- 
 mentioned licences shall be revocable at pleasure by the authority by 
 which they are granted ; but no holder of such last-mentioned licence 
 shall be deemed guilty of an offence punishable upon summary conviction 
 merely by reason of the breach of the conditions of the said last-men- 
 tioned licences, or any of them. 
 
 675 
 
 magistrate to 
 forward cer- 
 tificate to 
 secretary of 
 state or lord 
 lieutenant of 
 Ireland. 
 
 Effect of for- 
 feiture or re- 
 vocation of 
 licence. 
 
 Licences may 
 be granted in 
 form differing 
 from that in 
 Schedule (A.) 
 
 Schedule (A.) 
 
 Order of Licence to a Convict made under the Statute, 
 
 Whitehall, 
 day of IS, 
 
 Her Majesty is graciously pleased to grant to 
 who was convicted of at the 
 
 for the on the 
 
 and was then and there sentenced to be kept in penal servitude for the 
 term of and is now confined in tiie 
 
 Her Pioyal licence to be at large from the day 
 of his liberation under this order during the remaining portion of his said 
 term of penal servitude, unless the said 
 
 shall before the expiratiDU of the saiil term 1)0 convicted of some indict- 
 able offence within the United Kingdom, in which case sucli licence will 
 be immediately forfeited by law, or unless it shall please Her Majesty 
 sooner to revoke or alter such licence. 
 
 This licence is given subject to the conditions endorsed upon the same, 
 upon the breach of any of which it will bo liable to bo revoked, whether 
 such breach is followed by a conviction or not. 
 
 And Her Mnjesty hereby orders that the said 
 bo set at liberty within thirty days from the date of this order. 
 
 Given under my hand and seal
 
 G7G 
 
 Appendix of Statutes. 
 
 Coii'fUlona. 
 
 1. 'V\\o hoMcr sliuU preserve liis licence and |>r<)(luce it when called upon 
 to do 8i> l»y a inngistratc or jiolico otliccr. 
 
 2. He sliall al)»tain from any violation of the law. 
 
 3. He sliall not liabitnally iussociatc with notoriously had characters, 
 such as rci)utcd thieves and prostitutes, 
 
 4. Ifc shall not lead an idle and dissolute life, without visible means of 
 ohtainint,' an honest livelihood. 
 
 If his licence is forfeited or revoked in consequence of a conviction 
 for any ofl'ence, he will be lialdc t(j undergo a term of penal sei-vitudc 
 equal to the ])ort ion of his term of years which remained 
 
 unexpired when his licence was granted, viz. the term of years. 
 
 Schedule (B.) 
 
 Form of Certificate of Conviction of Holder of Licence. 
 
 I do hereby certify that A. B., the holder of a licence under the Penal 
 Servitude Acts, was on the day of in the year 
 
 duly convicted by of the oftence of 
 
 and sentenced to 
 
 C. D., 
 Clerk to the said Justices. 
 
 Provisions of 
 sec. 2 of this 
 Act to apply 
 to trials com- 
 menced on 
 or after 
 July 1, 1865. 
 
 Summing up 
 of evidence 
 in cases of 
 felony and 
 misdemeanor. 
 
 28 Vict. c. 18, 
 
 An Act for amending the Laxo of Evidence and Practice on Cnminal 
 
 'Trials. 
 
 \fdth May, 1865.] 
 
 'Whereas it is expedient that the law of evidence and practice on trials 
 for felony and misdemeanor and other proceedings in courts of criminal 
 judicature should be more nearly assimilated to that on trials at Nisi 
 Prius : ' be it enacted by, &c., as follows ; that is to say, 
 
 1. That the provisions of section two of this Act shall appdy to every 
 trial for felony or misdemeanor which shall be commenced on or after the 
 first day of July, one thousand eight hundred and sixty-five, and that the 
 provisions of sections from three to eight, inclusive, of this Act shall apply 
 to all courts of judicature, as well criminal as all others, and to all persons 
 having, by law or by consent of parties, authority to hear, receive, and 
 examine evidence. 
 
 8, If any prisoner or prisonei-s, defendant or defendants, shall be defen- 
 ded by counsel, but not otherwise, it shall be the duty of the presiding 
 judge, at the close of the case for the prosecution, to ask the counsel for 
 each prisoner or defendant so defended by counsel whether he or they 
 intend to adduce evidence, and in the event of none of them thereupon 
 announcing his intention to adduce evidence, the counsel for the prosecu- 
 tion shall be allowed to address the jury a second time in support of his 
 case, for the purpose of summing up the evidence against such prisoner 
 or prisoners, or defendant or defendants j and upon every trial for felony 
 or mistlemeunor, whether the prisoners or defendants, or any of them, 
 shall be defended by counsel or not, each and eveiy such prisoner or de- 
 fendant, or his or their counsel respectively, shall be allowed, if he or 
 they shall think fit, to open his or their case or cases respectively ; and 
 after the conclusion of such opening or of all such openings, if more than 
 one, such prisoner or prisoners, or defendant or defendants, or their coun- 
 sel, shall be entitled to examine such witnesses as he or they may think
 
 28 Vict. c. 18. 
 
 fit, and when all the evidence is concluded to sum up the evidence 
 respectively ; and the right of reply, and practice and course of pro- 
 ceedings, save as hereby altered, shall be as at present. 
 
 3. A party producing a witness shall not be allowed to impeach his 
 credit by general evidence of bad character, but he may, in case the wit- 
 ness shall, in the opinion of the judge, prove adverse, contradict him by 
 other evidence, or, by leave of the judge, prove that he has made at other 
 times a statement inconsistent with his present testimony ; but before 
 such last-mentioned proof can be given the circumstances of the supposed 
 statement, sufficient to designate the particular occasion, must be men- 
 tioned to the witness, and he must be asked whether or not he has made 
 such statement. 
 
 4. Tf a witness, upon cross examination as to a former statement made 
 by him i-elative to the subject-matter of the indictment or proceeding, 
 and inconsistent with his present testimon}', does not distinctly admit 
 that he has made such statement, proof may be given that he did in fact 
 make it ; but before such proof can be given the circumstances of the 
 supposed statement, sufficient to designate the particular occasion, must 
 be mentioned to the witness, and he must be asked whether or not he 
 has made such statement. 
 
 5. A witness may be cross-examined as to previous statements made 
 by him in writing or reduced into writing relative to the subject-matter 
 of the indictment or proceeding, without such writing being shown to 
 him ; but if it is intended to contradict such witness by the writing, his 
 attention must, before such contradictory proof can be given, be called to 
 those parts of the writing which are to be used for tlie purpose of so con- 
 tradicting him: provided always, that it shall be competent for the judge, 
 at any time during the trial, to re(]uire tlie production of the writing for 
 his inspection, and he may thereupon make such use of it for the pur- 
 poses of the trial as he may think fit. 
 
 6. A witness may be questioned as to whether he has been convicted 
 of any felony or misdemeanor, and upon being so (luestioned, if he cither 
 denies or does not admit the fact, or refuses to answer, it shall be lawful 
 for tlie cross-examining party to prove such conviction ; and a certificate 
 containing the substance and effect only (omitting the formal part) of 
 the indictment and conviction for such offence, purporting to be signed 
 by the clerk of the court or other officer having the custody of the 
 records of the court where the offender was convicted, or b}' the deputy 
 of such clerk or officer (for which certificate a fee ol'five shillings, and no 
 more, shall be demanded or taken), shall, upon proof of tlie identity of 
 the person, be sufficient evidence of the said conviction, without proof of 
 the signature or official character of the person appearing to have signed 
 tlie same. 
 
 7. It shall not be necessary to prove by the attesting witness any 
 instrument to the validity of which attestation is not recjuisite, and such 
 instrument may be proved as if there had been no attesting witness 
 thereto. 
 
 8. Comparison of a disputed writing with any writing provetl to the 
 satisfaction of the judge to be genuine shall be permitted to be made by 
 witnesses ; and such writings, and the evidence of witnesses respecting 
 the same, may be submitted to the court and jury as evidence of the 
 genuineness or otherwise of the writing in dispute. 
 
 9. The word 'counsel' in this Act shall be construed to apply to 
 attorneys in all cases where attorneys are allowed by law or by the prac- 
 tice of any court to appear as advocates. 
 
 10. This Act shall not apply to Scotland. 
 
 677 
 
 flow far wit- 
 ness may lie 
 discredited by 
 the party pro- 
 ducing. 
 
 As to proof 
 of contradic- 
 tory state- 
 ments of 
 adverse wit 
 ness. 
 
 Cross-examina- 
 tiou as to 
 previous state- 
 ments ia 
 writing. 
 
 Proof of pre- 
 vious convic- 
 tion of witness 
 may lie given. 
 
 As to proof by 
 
 attesting 
 
 witnesses. 
 
 As to com- 
 parison of 
 disputed 
 writing. 
 
 ' Counsel.' 
 
 Not to apply 
 to Scotland.
 
 G78 
 
 AjipemUx of Statutes. 
 
 28 it L'O VifT. c. 1 2 k 
 
 Provisions of 
 '27 & 28 Vi.l. 
 c. 57, to apply 
 to this Act. 
 
 Style of Com- 
 inissionors of 
 Aflmiralty in 
 Suits. 
 
 As to Costs. 
 
 Prerogatives of 
 the Crown ia 
 Suits ]ire- 
 sciveJ, &c. 
 
 Saving for 
 proceeding 
 by iufoniia- 
 tion, &c. 
 
 Superinten- 
 dents of dock- 
 yards to be 
 justices for 
 certain pur- 
 poses. 
 
 Punishment 
 for uttering 
 false petitions, 
 certificate, &c. 
 
 An Acl for consolUhiling cerlain Kna<:tments rclallnj I" the Admiralty. 
 
 [GihJuhj, 1«G5.] 
 IWj it enacted by, etc., as follows : — 
 
 1. The ])rovi8ions of The Admiralty Lands and Works Act, 18G4, 
 i-espectiii".; the user of lands, and respecting powers of management and 
 lousing, and other rights and i)owers relative to lands, and respecting 
 recovery of possession and sale of lands, and respecting actions and suits 
 by and against the admiralty relative to lands, shall ajjply in relation to 
 all lands for the time being vested in or purchased by the commissioners 
 of the admiralty. 
 
 2. Except as otherwise expressly provided, the commissioners of the 
 admiralty for the time being may be styled, in any action, suit, or other 
 proceeding at law or in equity, ' The Commissioners for executing the 
 Office of Lord High Admiral of the Ignited Kingdom,' without more; and 
 any action, suit, or ])rocecding shall not be affected by any change among 
 the commissioners of the admiralty ; and in any action, suit, or proceed- 
 ing the commissioners of the admiralty shall be liable and entitled 
 to pay or receive costs according to the ordinary law and practice relative 
 to costs. 
 
 3. Nothing in this Act, or in the Admiralty Lands and Works Act, 
 18G4, shall take away or abridge in any action or suit the legal rights, 
 privileges and prerogatives of Her ^lajesty, her heirs and successors, but 
 in all actions and suits instituted by or against the commissioners of the 
 admiralt}', and in all proceedings and matters connected therewith, the 
 connnissioners of the admiralty may exercise and enjoy all such rights, 
 privileges, and prerogatives as are for the time being exercised and en- 
 joyed in any action or suit in any court of law or equity by Her Majesty, 
 her heirs or successors, as if the Crown were actually a party to such 
 action or suit. 
 
 4. Notwithstanding anything in this Act, or in The Admiralty Lands 
 and AVorks Act, 1804, it shall be lawful for Her Majesty, her heii-s and 
 successors, to proceed by information in the Court of Exchequer, or by 
 any other Crown ]irt>cess, legal or equitable, in any case in which it would 
 have been competent for Her ^Lijesty, her heirs or successors, so to pro- 
 ceed if no pirovisions respecting ])rocedure had been inserted in this Act, 
 or in the Admiralty Lands and Works Act, 1864. 
 
 5. The superintendents of Her Majesty's dockyards shall be in all 
 places justices of the peace in respect of all ofJenccs specified in this Act, 
 and of all matters relating to Her Majesty's naval service, and the stores, 
 provisions, and accounts thereof. 
 
 6. If any person, in order to sustain any claim to any pay, wages, 
 allotment, prize-money, bounty-money, grant, or other allowance in the 
 nature thereof, half pay, pension or allowance from the Compassionate 
 Fund of the navy, or other money payable by the admiralty, or to any 
 effects or mone)' in charge of the admiralty, — or in order to procure any 
 person to be admitted a pensioner as the widow of an officer of the navy, 
 — docs any of the following things, namely, — offers or utters to any 
 person in the service of the Crown or of the admiralt)' any false affidavit, 
 knowing the same to be false, or makes or subscribes or offei-s or utters 
 as aforesaid any false written petition, application, statement, answer, 
 certiticate, or voucher, or other fixlse writing, knowing the same to be 
 false, — every such person shall be guilty of a misdemeanor, and being 
 convicted thereof shall be liable, at the discretion of the court, to be kept
 
 32 & 33 Vict. c. 89. 
 
 in penal servitude for any term not exceeding fiv years, or to be impri- 
 soned for any term not exceeding two years, with or without hard labour, 
 and with or without solitary confinement, or on summary conviction 
 before a justice, slierift; or magistrate sliall be liable to be imprisoned for 
 any term not exceeding six months, with or without hard labour. 
 
 7. The following sections of the Act of the session of the twenty-fourth 
 and twenty-fifth years of Her ]\Iajcsty's reign (chapter ninety-eight), ' to 
 consolidate and amend the statute law of Enyland and Ireland relating 
 to indictable oftenccs by forgery,' shall be incorporated with this Act, 
 and shall be read as if they were here re-enacted, namely, — sections forty 
 to forty-two and fifty to fifty-tlu-ec (all inclusive) ; and for this purpose 
 the expression ' this Act ' used in the said incorporated sections sliall be 
 construed to include the present Act, and expressions therein used relat- 
 ing to forgery or forged writings shall be construed to apply to any Act 
 being a misdemeanor under the last foregoing i)rovisiou of this Act, 
 and to writings made, subscribed, offered, or uttered in contravention of 
 that Provision. 
 
 8. If any person in order to receive any pay, wages, allotment, prize- 
 money, bounty-money, grant, or other allowance in the nature thereof, 
 half pay, pension, or allowance from the Compassionate Fund of the navy, 
 payable or supposed to be })ayable by the admiralty, or any other money 
 so payable or supposed to be payable, or any effects or money in 
 charge or supposed to be in charge of the admiralty, falsely and 
 deceitfully personates any person entitled or supposed to be entitled to 
 receive the same, every such person sliall be guilty of a misdemeanor, 
 and being convicted thereof shall be liable, at tlie discretion of the court, 
 to be kept in penal servitude for any term not exceeding five years, or to 
 be imprisoned for any term not exceeding two years, with or witliout 
 hard labov;r, and with or without solitary confinement, or on summary 
 conviction before a justice, sherifl', or magistrate shall be liable to 
 be imprisoned for any term nut exceeding six months, with or withuut 
 hard labour. 
 
 9. Nothing in this Act shall prevent any person from being proceeded 
 against and punished under any other Act or at common Law iu respect 
 of an offence (if any) punishable as well under this Act as under any other 
 Act or at common law. 
 
 10. This Act shall commence on such day, nut later than the first day 
 of January, 18GG, as her Majesty in Council thinks fit to direct. 
 
 11. Every Order in Council under this Act sliall be pul)lislied in tiio 
 London Gawtte, and shall be laid before both Houses of rarliament 
 within thirty days after the making thereof, if Parliament is then sitting, 
 and if not then within thirty days after the next meeting of Parliament. 
 
 12. This Act may be cited as The Admiralty Powers, itc. Act, 1800. 
 
 G79 
 
 Tarts of 24 & 
 25 Vict. c. i<S 
 iiicori)oratcJ. 
 
 ruuisliincnt 
 for pcrsonati"!! 
 of seaiuen, i;ii. 
 
 Saving for 
 punisliincnt 
 uiulcr otlier 
 Acts, &c. 
 
 Coiiiuiencc- 
 nicnt of Act. 
 
 As to puMiiM- 
 tioii of Olden* 
 iu Couueil. 
 
 Short title. 
 
 32 ik 33 Vict. c. 89. 
 
 An Act to amend the Laio relatimj to the Office of Clerk of Assize and OtHces 
 imited tJicreto, and to certain Fees xtpon Orders for J'ai/inent of U'if- 
 nesses in Criminal I'roceedint/s. 
 
 [0/A Aur/ust, 1SG9.] 
 
 WHEREAS it is expedient to amend the law relating to the oflice of The Clerks cf 
 clerk of assize and offices united thereto, and to remove duubt.s whicli have Awir-c, kc, 
 arisen respecting the taking of certain fees, in pui-suance of hcction ."» of Act, 180"J. 
 30 &31 Vict. c. 35, ' to remuvc some defects in the administration of tlio 
 criminal law.' 
 
 Be it therefore enacted liv, S:c., as follows : —
 
 080 Appendix of Statutes. 
 
 Preliminary. 
 
 1. 'Phis Act may I)C cited as Tlio Clerks of Assize, kc. Act, 18G9. 
 L'. Tliib Act sliuU not extend to Scotland or Ireland, 
 
 Paiit I. 
 
 Office of Cleric of Assize. 
 
 Sec. 3 states the qualification for a clerk of assize. 
 
 Sec. 4 relates to his salary. 
 
 5. A clerk of assize who is paid by salary shall not take any fee 
 for his own use ; and if he is authorized by any Act passed or hereafter 
 to be passed to take any fee for any duty performed by him, lie shall 
 take (by stamps or otherwise) and account for and pay over such fee in 
 such mumicr as may be directed by the Commissioners of her Majesty's 
 Treasury. 
 
 Sec. G. Person hereafter appointed not to be entitled to compensa- 
 tion if office abolished, etc. 
 
 Sec. 7 relates to tlie removal of any person employed by any clerk of 
 assize. 
 
 8. In this Act the term * clerk of assize ' includes clerk of the Crown 
 and associate on circuit, and any other office the duties of which are at 
 the passing of this Act or may hereafter be performed by the clerk of 
 assize. 
 
 Tart II. 
 
 Fees on Orders under 30 & 31 Vict. c. 35, s. 5. 
 
 9. This part of this Act shall be construed as one with the re- 
 cited Act of the 30 & 31 Vict. c. 35, which may be cited as The Crimi- 
 nal Law Amendment Act, 1867. 
 
 10. AYhere the officer of the court who, in pursuance of section five 
 of The Criminal Law Amendment Act, 1867, makes out an order for the 
 payment of expenses and compensation to witnesses, is paid by salaiy, or 
 is for the time being allowed under the table of fees relating to his office 
 to take one fee only of fixed amount in respect of his several duties relat- 
 ing to the prosecution of an oftendcr, such officer shall make out and 
 deliver such order without taking any fee for the same, and the said sec- 
 tion shall be construed as if all mention of the sum or fee of sixpence 
 were omitted therefrom. 
 
 11. "Where the fee of sixpence is, in pursuance of section five of 
 The Criminal Law Amendment Act, 1867, as amended by this Act, taken 
 by a clerk of the peace or other officer, the amount of such fees received 
 by him during any year after the passing of this Act shall be included in 
 the total amount of fees in criminal prosecutions received by him, which 
 is to be ascertained uuder section 18 of the 18 & 19 Vict. c. 1:^6, 'for 
 diminishing expense and delay in the administration of criminal justice 
 in certain cases,' and shall be included in every return or account of fees 
 made or rendered by such clerk of tlic peace or other officer. 
 
 3i& 35 Vict. c. 112. 
 
 An Act for the 7no re Effectual Prevention of Crime. 
 
 [nst August 1871.] 
 
 The rrcTcntion WHEREAS it is expedient to make further provision for the effectual 
 "oi^'"*'"^ ^'^^' prevention of crime : 
 
 Be it enacted, itc, as follows : — 
 
 1871.
 
 34 (& 35 Vict. c. 112. GSl 
 
 Preliminary. 
 
 1. This Act may be cited as ' The Prevention of Crimes Act, 1871.' Short title. 
 
 2. This Act sliall not come into operation until the second day of p 
 Novembex- one thousand eight hundred and seventy- one. ment of Act. 
 
 Amendment of Penal Servitude Acts. 
 
 3. Penalty on holders of licenses getting their living by dishonest 
 means. See this section vol. 1, p. 75. 
 
 4. Penalty on breach of conditions of license. See this section vol. 1, 
 p. 75. 
 
 5. Convict holding license to notify residence to police. See this sec- 
 tion vol. 1, p. 75. 
 
 Register of Criminals. 
 
 6. The following enactments sliall be made with a view to facilitate the Register and 
 identification of criminals : l.liotographiiig 
 
 (1.) Registers of all persons convicted of crime in the United Kingdom o^ crimi- 
 shall be kept in such form and containing such particulars as "^'**^^.** 
 may from time to time be prescribed, in Great Britain by one 
 of Her Majesty's Principal Secretaries of State, and in Ireland 
 by the Lord Lieutenant : 
 
 (2.) The register for England shall be kept in London under the 
 management of the commissioner of police of the metropolis, 
 or such other person as the Secretary of State may appoint : 
 
 (3.) The register for Scotland shall be kept hi Edinburgh under the 
 management of the secretary to the managers of tiic Cenei-al 
 Prison at Perth, or such other person as the Secretary of State 
 may appoint : 
 
 (4.) The register for Ireland shall be kc[)t in Dublin under the man- 
 agement of the commissioners of police for the police district 
 of Dublin metropolis, or such other pereon as the Lord Lieu- 
 tenant may from time to time appoint : 
 
 (5.) In every prison, the gaoler or other governor of the prison shall 
 make returns of the persons convicted of crime and coming 
 within his custody ; and such returns shall be in such form 
 or forms and contain such particulars in Great J{ritain as 
 the Secretary of State, and in Ireland as the .said Lord 
 Lieutenant, may require ; and every gaoler or other governor 
 of a prison who refuses or neglects to transmit suth ri'tunis, 
 or wilfully transmits a return containing any false or iinporfoct 
 statement, shall for every such ofl'ence forfeit a sum not exceed- 
 ing twenty pounds, to be recovered sunnnarily : 
 
 (G.) In Great Britain the Secretary of State, and in Ireland the said 
 Lord Lieutenant, may make regulations as to tho photograj'h- 
 ing of all prisoners convicted of cnmc who may for the time 
 being be confined in any prison in (Jreat Britain or Ireland, 
 and may in such regulations prcscrihc the tin)e or times at 
 which and the manner and dress in which such iirisoncra are to 
 be taken, and the number of photographs of each i)risoner to 
 bo printed, and the persons to whom such photographs are to bo 
 sent : 
 
 {h) See 39 & 40 Vict. c. 23, ;w/, p. 6t>2.
 
 682 Appoidlx of Statutes. 
 
 (7.) Any ro<,'nl;itious made l)y tlic Secretary of State as to the 
 jdiotn^Mapliini^ of ])risoiierH in any jtrison in l-Jif^land sliall be 
 (Ic'cnic'd to be re<.Milation.s for the government of that i)riKoii, 
 and bindin;^ on all jier.sons, in the same maimer as if they were 
 contained in the first schednlc annexed to The Prison Act, 
 ISG.i : 
 (8.) Any re<^uhitions made by the Secretary of State as to tlie 
 jihdtographing of prisoners in any prison in Scotland shall be 
 deemed to be rules for prisons in Scotland, and a.s such shall be 
 binding on all whom they may concern, in the same manner as 
 if the same were made under and in virtue of the powers con- 
 tained in ' The Prisons (Scotland) Administration Act, 
 ISGO:' 
 (9.) Any regulations made by the Lord Lieutenant as to the photo- 
 gra[)liing of prisoners in any prison in Ireland shall be deemed 
 to be byelaws duly made by the Lord Lieutenant, and shall be 
 binding on all persons, in the same manner as if the same were 
 made under the authority of the Act passed in the session 
 lioldcn in tho nineteenth and twentieth years of the reign of 
 Her present Majesty, chapter sixty-eight : 
 (10.) Any prisoner refusing to obey any regulation made in pur- 
 suance of this section shall be deemed guilty of an offence 
 against ja'ison discipline, in England within the meaning of the 
 fifty-seventh regulation in the first schedule annexed to the said 
 Prison Act, 18G5, in Scotland within the meaning of the rules 
 for prisons in Scotland, certified under the hand of one of Her 
 ^Majesty's Principal Secretaries of State, under and by virtue of 
 'The Prisons (Scotland) Administration Act, 1800," and in 
 Ireland within the meaning of the fifteenth regulation contained 
 in section one hundred and nine of the Act passed in the 
 seventh year of the reign of His late Majesty King George the 
 Fourth, chapter seventy-four : 
 (11.) Any authority having power to make regulations in pursuance 
 of this section may from time to time modify, repeal, or add to 
 any regulations so made : 
 (12.) Any expenses incurred in pursuance of this section shall be 
 defrayed as follows ; (that is to say,) 
 
 The expense of keeping the register in Loudon, Edin- 
 burgh, and Dublin shall, to such amount as may be sanc- 
 tioned by the treasury, be paid out of nione3-s provided by 
 p.arliamcnt. The expenses incurred in photogi-aphing the 
 prisoners in any prison shall be deemed to be part of the 
 expenses incurred in the maintenance of the prison, and shall 
 be defrayed accordingly. 
 
 This section shall not apply to the prisons for convicts 
 under the superintendence of the directoi-s of convict 
 prisons, or to any military or naval prison. 
 
 Punishment of Certain Offenders. 
 
 7. Special offences by persons twice convicted of crime. See this 
 sec. vol. 1, p. 7G. 
 
 8. Person twice convicted may be subjected to police supemsiou. See 
 this sec. vol. 1, p. 77. 
 
 Incorpora- 0. The rules contained in the llGth section of the 24 it 25 Vict. c. OG, 
 
 tionofccr- intituled, ' An Act to consolidate and amend the Statute Law of Eng- 
 
 Uiu rules of j.^^^^| ,^^^^ L-claud relating to Larceny and other similar oftences,' in 
 
 procedure o j >
 
 34 d 35 Vict. c. 112. 683 
 
 relation to the form of and the proceedings upon an indictment for any on indiet- 
 offence punishable under that Act committed after previous conviction, ments. 
 shall, with the necessary variations, apply to any indictment for com- 
 mitting a crime as defined by this Act after previous conviction for a 
 crime, whether the crime charged in such indictment or the crime to 
 which such previous conviction relates be or be not punishable under the 
 said Act, 24 & 25 Vict. c. 96. 
 
 10. Every person who occupies or keeps any lod<'-in<'-hou£e, beer- Penalty for 
 house, public house, or other house or place where intoxicating liciuors ''-yI^'O"""!,' 
 are sold, or any place of public entertainment or public resort, and ^ "*^^''""''' ^'^' 
 knowingly lodges or knowingly harbours thieves or reputed thieves, ov 
 knowingly permits or knowingly suffers them to meet or assemble 
 therein, or knowingly allows the deposit of goods therein having reason- 
 able cause for believing them to be stolen, shall be guiltv of an oftencc 
 
 against this Act, and be liable to a penalty not exceeding ten pounds, 
 and in default of payment to be imprisoned for a period not exceedin" 
 four months, with or without hard labour, and tlie court before whioli 
 he is brought may, if it think fit, in addition to or in lieu of an}' pcnaltv, 
 require him to enter into recognizances, with or without sureties, and if 
 in Scotland to find caution, for keeping the peace or being of good 
 behaviour during twelve months : Provided that 
 
 (1.) No person shall be imprisoned for not finding sureties or cau- 
 tioners in pursuance of this section for a longer period than 
 three months ; and 
 
 (2.) The security required from a s^u-etj- or cautioner shall not exceed 
 twenty pounds : 
 
 And any licence for the sale of any intoxicating liquors, or for keejiing 
 any place of public entertainment or public resort, which has been granted 
 to the occupier or keeper of any such house or place as aforesaid, may, 
 in the discretion of the court, be forfeited on his first conviction of an 
 offence under this section, and on his second conviction for such an 
 offence his licence shall be forfeited and he shall be disqualified for a 
 period of two years from receiving any such licence ; moreover, where 
 two convictions under this section have taken place within a i)criod of 
 three years in respect of the same premises, whether tlie persons con- 
 victed were or were not the same, the court shall direct that for a term 
 not exceeding one ^^ear from the date of the last of such convictions no 
 such licence as aforesaid sliall bo granted to any person wiiatevcr in 
 respect of such premises ; and any licence granted in contravention of 
 this section shall be void. 
 
 Any licensed person brought before a court in jiursuance of this 
 section shall produce his licence for examination, and if such licence 
 is forfeited shall deliver it up altogether, and if such person wilfully 
 neglects or refuses to produce his licence he shall, in addition to any other 
 penalty under this section, be liable on summary conviction to a penalty 
 not exceeding five pounds ; provided that any person convicted under 
 this section shall have a right to appeal against such conviction in the 
 same manner in all respects as if the said conviction had been for an 
 ofl-ence committed again.st the provisions of the Act of the ninth (Jcorgc 
 tlic Fourth, chapter sixty-one. 
 
 11. Every person who occupies or keeps a brothel, and knowingly Pcn.ilty on 
 lodges or knowingly harbours thieves or reputed thieves, or knowingly ''i-"tl"'l keep. 
 permits or knowingly suffers them to meet or a.ssemblo tlieroin, or know- ^'"^ "^^^ "li'""'' 
 ingly allows the deposit of goods therein having rexsonablo cause for * 
 believing them to be stolen, sliall be guilty of an oU'ence against this Act, 
 
 and be liable to a penalty not exceending ten ]ionnds, and in default of 
 payment to be imprisoned for a period not exceciling four months, with 
 or without hard labour, and the court before which he is brought may. if
 
 G84 
 
 IVnally on 
 Hssaiill.s oil 
 [Milicc. 
 
 Penalty on 
 ilealors in old 
 niuUils pur- 
 duusiiij; 
 <]uantitic.s loss 
 lliaii stated in 
 sehoJulc. 
 
 As to care 
 of children of 
 women cou- 
 viet-ed of 
 crimes. 
 
 Appoidi.r of Statutes. 
 
 it tliiiik fit, ill addition to or in lieu of any penalty require liim to cuter 
 into rrco^'niznnccs, with or without sureties, as in this Act described. 
 
 \'l. Whore any person is convicted of an assault on any constable 
 when in the execution of his duty, such person shall be guilty of aji 
 oll'i'iico a;jjainst tiiis Act, and shall, in the discretion of the court, be 
 lial)lc either to pay a penalty not exceeding twenty pounds, and in 
 default of payment to be imprisoned, with or without hard labour, for 
 a term not exceeding six months, or to be imprisoned for any term 
 not exceeding six, or in c:ise such person has been convicted of a 
 similar assault witiiin two years, nine months, with or without haid 
 labour. 
 
 13. Any dealer in old metals who either personally or by any 
 servant or agent purchases, receives, or bargains for any metal men- 
 tioned in the iii'st column of tin schc lulc annexed hereto, whether new 
 or old, lU any ([liantity at any time of less weight than the cpiantity set 
 oi)posite each sueli metal in the second column of the schedule annexed 
 hereto, shall be guilty of an offence against this Act, and be liable to a 
 penalty not exceeding five pounds. 
 
 For the purposes of this section the term 'dealer in old metals' shall 
 mean any person dealing in, buying, and selling old metal, scrap metal, 
 broken metal, or partly manufactured metal goods, or defiiced or old 
 metal goods, and whether such person deals in such articles only, or 
 together with second-hand goods or marine stores. 
 
 14:. Where any woman is convicted of a crime, and a previous convic- 
 tion of a crime is proved against her, any children of such woman under 
 the age of fourteen years who maybe under her care and control at the 
 time of her conviction for the last of such crimes, and who have no 
 visible means of subsistence, or arc without proper guardianship, shall be 
 deemed to be children to whom in Great Britain the provisions of The 
 Industrial Schools Act, 1866, and in Ireland the provisions of The 
 Industrial Schools (Ireland) Act, 1868, apply, and the court by whom 
 such woman is convicted, or two justices or a magistrate, shall have the 
 same power of ordering such children to be sent to a certified industrial 
 school as is vested in two justices or a magistrate by the fourteenth 
 section of The Industrial Schools Act, 1866, and by the eleventh section 
 of The Industrial Schools (Ireland) Act, 1868, in respect of the children 
 iu the said sections described. 
 
 Evidence of 
 vagrancy aii^ 
 amendment 
 of Vagrant 
 Act. 
 
 Amendment of Criminal Law in certain Cases. 
 
 15. Whereas by the fourth section of the Act passed in the fifth 
 year of the reign of King Ceorge the Fourth, chapter eighty-three, 
 intituled ' An Act for the punishment of idle and disorderly persons, and 
 rogues and vagabonds, in that part of Great Britain called England,' it 
 is, amongst other things, provided that ever}- suspected person or reputed 
 thief frequenting any river, canal, or navigable stream, dock, or basin, or 
 any quay, wharf, or warehouse near or adjoining thereto, or any street, 
 highway, or avenue leading thereto, or any place of public resort, or 
 any avenue leading thereto, or any street, highway, or place ad- 
 jacent, with intent to commit felony, shall be deemed a rogue and 
 vagabond, and may be apprehended and committed to prison with hard 
 lal)our for any time not exceeding three calendar months : And whereas 
 doubts are entertained as to the construction of the said provision, and 
 as to the nature of the evidence required to prove the intent to commit 
 a felony : r>e it enacted, firstl}-, the said section shall be construed as if 
 instead of the words ' highway or place adjacent ' there were inserted the 
 words ' or any highway or any place adjacent to a street or highway ; ' 
 and, sccoudly, that iu proving the intent to commit a felony it shall not
 
 34 (& 35 Vict. c. 112. GS5 
 
 be necessary to show that the pcvson suspected was guilty of any parti- 
 cular act or acts tending to show his purpose or intent, and he may 
 be convicted if from the circumstances of the case, and from his 
 known character as proved to the justice of the peace or court before 
 whom or which he is brought, it appears to such justice or court that his 
 intent was to commit a felony ; and the i)rovisions of the said section, as 
 amended by this section, shall be in force in Scotland and Ireland. For 
 the purposes of this section, in Scotland the word felony shall mean 
 any of the pleas of the Crown, any theft, which in respect of aggi-ava- 
 tion, or of the amount in value of the monej', goods, or thing ^stolen, 
 may be punished with penal servitude, any forgery, and any utlering of 
 any forged writing. 
 
 16. Any constable may under the circumstances hereafter in this sec- Power to 
 tion mentioned be authorised in writing by a chief officer of police to search for 
 enter, and if so authorised may enter, any house, shop, warehouse, yard, stolen pro- 
 or other premises in search of stolen property, and search and seize and ^'^'^^' 
 secure any property ho may believe to have been stolen, in the same 
 manner as he would be authorised to do if he had a search warrant, and 
 
 the property seized, if any, corresponded to the property described in 
 such search warrant. 
 
 In every case in which any property is seized in pursuance of this sec- 
 tion the person on whose premises it was at the time of seizure, or the 
 person from whom it was taken if otlier than the person on whose pre- 
 mises it was, shall, unless previously charged with receiving the same 
 knowing it to have been stolen, be summoned before a court of summaiy 
 jurisdiction to account for his possession of such property, and such 
 court shall make such order respecting the disposal of such property, and 
 may award such costs as the justice of the case may require. 
 
 It shall be lawful for any chief officer of police to give such authority 
 as aforesaid in the following cases, or either of them : — 
 
 First. When the premises to be searched arc, or within the preceding 
 twelve months have been, in the occupation of any person wiio has 
 been convicted of receiving stolen property or of harbouring 
 thieves : or 
 Second. AVhcn the premises to be searched are in the occupation of 
 any person who has been convicted of any ofVencc involving frauil 
 or dishonesty, and punishable by penal servitude or imprisonment : 
 And it shall not be necessary for such chief officer of police on giving 
 such authority to specify any particular propcrt}', but he may give such 
 authority if he has reason to believe generally that such premises arc 
 being made a receptacle for stolen goods. 
 
 Legal rroceeilhtrfs. 
 
 17. Any offence against this Act may be prosecuted bcf-ire a court of As to IcrhI 
 summary jurisdiction, as follows : l>r<>occ<linK8 
 
 In England, in maimer directed by the Act of tljc session of tho f"/* *"''*^" 
 eleventh and twelfth years of the reign of Ifer present Majesty, o^MmunwT* 
 cha])ter forty-three, intituled " An Act to facilitate the performance jurwdiction. 
 of the duties of justices of the peace out of sessions within Eng- 
 land and Wales with respect to sununary convictions and orders," 
 and any Act amending the same : 
 
 In Scotland, under the provisions of " The Sununary Procedure Act, 
 1861,'' and any Act amending the same : 
 
 In Ireland, within the ])olice district of Dublin niotropolis, accordin"' 
 to tiie provisions of tlie Act regulating tho powers niul (hities of 
 justices of the jieacc for such ilistrict, or of the police of such 
 district, and elsewhere in Ireland in manner directed by "Tlic Petty 
 Sessions (Ireland) Act, 1851," and any Act amending the same :
 
 (J8G Appendix of Statutes. 
 
 "Court of Suniminy Jurisdiction" bhiiU in tliis Act mean and include 
 any justice or justices of tlio jjcace, HlierifT or sheriff substitute, 
 metropolitan police ma;,'istrate, sti[)cndiary or other magistrate, or 
 olliccr, i)y whatever name called, to whom jurisdiction is given hy 
 the Acts in this section mentioned, or any Acts therein referred t<j, 
 or to proceedings before whom the provisions of such Acts are or 
 may bo made applicable. 
 Provided as follows : — 
 (1.) Tiie "Court of Summary Jurisdiction" when hearing and deter- 
 mining an information, complaint, or other proceeding in respect of an 
 olfence against this Act, shall be constituted in some one of the follow- 
 ing manners; that is to say, in England, cither of two or more justices 
 of the peace in petty sessions sitting at a place appointed for holding 
 petty sesions, or of one of the magistrates hereinafter mentioned, sitting 
 alone or with others at some court or other place appointed for the 
 administration of justice ; that is to say, the Lord Mayor, a metropolitan 
 police magistrate, a stipendiary magistrate, or some other officer or 
 officers forthe time being empowered by law to do alone or with others 
 any act authorised to be done by more than one justice of the peace ; 
 and in Scotland, of two or more justices of the peace sitting as judges 
 in a justice of the peace conrt, or of one of the magistrates hereinafter 
 mentioned, sitting alone or with others at some com-t or other ])]ace 
 appointed for the administration of justice ; that is to say, the sheriff or 
 sheriff substitute of the county, or the provost or other magistrate of a 
 royal burgh, or some other officer or officers for the time being empowered 
 by law to do alone or with others any act authorised to be done l)y more 
 than one justice of the peace ; and all necessary powers and authorities 
 are hereby conferred upon such court in Scotland ; in Ireland, within the 
 police district of Dublin metropolis, of one of the divisional justices of 
 the said district sitting at a police court within the said district ; and 
 elsewhere, of a stipendiary magistrate sitting alone or with others, or of 
 any two or more justices of the peace sitting in petty sessions at a place 
 appointed for holding petty sessions. 
 
 (2.) The description of any offence against this Act in the words of this 
 Act shall be sufficient in law. 
 
 (3.) Any exception, exemption, proviso, excuse, or qualification, whether 
 it does or does not accompany the description of the offence in this Act, 
 may be px-oved by the defendant, but need not be specified or negatived 
 in the infoi-mation or complaint, and if so specified or negatived no proof 
 in relation to the matters so specified or negatived shall be required on 
 the part of the informant or prosecutor or complainant. 
 
 (4.) Where any offence against this Act involves the forfeiture of a 
 licence granted under the Penal Servitude Acts, the court by whom the 
 offender is convicted may commit him to any prison within its jurisdic- 
 tion, there to remain until he can conveniently be removed to some 
 prison in which convicts under sentence of penal servitude may lawfully 
 be confined, in order that he may there undergo the term of penal 
 servitude to which he is liable under the said Penal Servitude Acts 
 or some of them ; and any person so committed may be kept to hard 
 labour. 
 
 (5.) Any person accused of an offence against this Act may be remanded 
 from time to time by the court before whom he is brought for the pur- 
 pose of enabling evidence to be obtained against him, or for any other 
 just cause. 
 
 (G.) No warrantor conviction in respect of any offence against this Act 
 shall be quashed for want of form, and the court before whom any ques- 
 tion relating to the validity of any such waiTant or conviction is brought, 
 may amend such warrant or conviction if it is of opinion that there was
 
 34 d 35 Vict. c. 112. 
 
 G87 
 
 Evidence of 
 previous 
 
 sufficient evidence before the court by whom the wan-ant was issued or 
 conviction made to justify the issue of such warrant or making of such 
 conviction. 
 
 (7.) All penalties imposed under this Act in Scotland may, unless it is 
 otherwise provided, in default of payment, be enforced by imprisonment 
 for a term to be specified iu the judgment or sentence of the court, but 
 not exceeding three calendar months ; and all penalties imposed and 
 recovered under this Act in Scotland shall be paid to the clerk of the 
 court, and by him accounted for and paid to the Queen's and Lord 
 Treasurer's Remembrancer in behalf of Iler Majesty. 
 
 All penalties imposed under this Act in Ireland shall be applied ac- 
 cording to The Fines (Ireland) Act, 1851, or any Act amending the same. 
 
 18. A previous conviction may bo proved in any legal proceeding 
 whatever against any person by producing a record or extract of such 
 conviction, and by giving proof of the identity of the person against conviction, 
 whom the conviction is sought to bo proved with the person appearing 
 in the record or extract of conviction to have been convicted. 
 
 A record or extract of a conviction sliall in the case of an indictable 
 offence consist of a certificate containing the substance and effect only 
 (omitting the formal part of the indictment and conviction), and pur- 
 porting to be signed by the clerk of the court or other officer having the 
 custody of the records of the court by which such conviction was made, 
 or purporting to be signed by the deputy of such clerk or officer ; and 
 in the case of a summary conviction shall consist of a copy of such con- 
 viction purporting to be signed by any justice of the peace having juris- 
 diction over the oftence in respect of which such conviction was made, 
 or to be signed by the proper officer of the court by which such convic- 
 tion was made, or by the clerk or other officer of any court to which 
 such conviction has been returned. 
 
 A I'ecord or extract of any conviction made in pursuance of this section 
 shall be admissible in evidence without proof of the signature or official 
 character of the person appearing to have signed the same. 
 
 A previous conviction in any one part of the United Kingdom may be 
 proved against a prisoner in any other part of the United Kingdom; and 
 a conviction before the passing of this Act shall be admissible in the same 
 manner as if it had taken place after the passing thereof 
 
 A fee not exceeding five shillings may be charged for a record of a 
 conviction given in pursuance of this section. 
 
 The mode of proving a previous conviction authorised by this section 
 shall be in addition to and not in exclusion of any other authorised mode 
 of proving such conviction. 
 
 19. Where pi'ocedings are taken against any person for liaving received 
 goods knowing them to be stolen, or for having in his posscsssion stolen 
 j)roperty, evidence may be given at any stage of the proceedings that 
 there was found in the possession of such person other proj)erty stolen 
 within the preceding period of twelve montlis, and such evidence may bo 
 taken into consideration for the ])urp<)se of proving tiiat such person 
 knew the property to be stolen which foi-ms the subject of the proceed- 
 ings taken against him. 
 
 Where proceedings are taken against any i)erson for having rccoivctl 
 goods knowing them to be stolen, or for having in his pos-session sti>len 
 property, and evidence has been given tiiat the stolen ]>roperty has boon 
 found in his possession, then if such pei-son has within tive years imme- 
 diately preceding been convicted of any oU'encc involving fraud or dis- 
 honesty, evidence of such jirevious conviction may bo given at any stage 
 of the proceedings, and may be taken into considcnxtion for the purpose 
 of proving that the person accused knew the pri>j)erty which was proved 
 to be in his possession to have been stolen ; })rovided that not less than 
 
 Eviilcnrc in 
 ci-sos of rv- 
 ccivinj; stolen 
 projicrty.
 
 G88 Aj)j)cnclix of Stafuhs. 
 
 seven diiys' notice in writinfj shall liavc been fjjiven to the person accused 
 thiit proof is intended to he given of snch ])rcviou8 conviction; and it 
 .shall not, he necessary for the purposes of this section to charge in tlio 
 indictment tlio previous conviction of the person so accused. 
 
 Iiitcriircta- 
 tion. 
 
 • Pcnul Sir- 
 vitudo Acts." 
 
 'Criiiic' 
 
 ' Offence' 
 
 ' Indictment. 
 
 ' Police dis- 
 trict. ' 
 
 ' Chief officer 
 of police. ' 
 
 Dt'fuiitious. 
 
 20. The expression "The Penal Servitiido Acts" means, as the case 
 ro(iiiirc's, tlie I'enal Servitude Acts, lS-3;{, 1857, and 1«G4, or any 
 of tlieni. 
 The expression " crime " means, in England and Ireland, any felony, 
 or the offence of uttering fixlse or counterfeit coin, or of possessing 
 counterfeit gold or silver coin, or the offence of obtaining goods or 
 money by false pretences, or the offence of conspiracy to defraud, or 
 any misdemeanor under the '1\ ik 25 Vict. c. OG, s. 58 ; and in Scot- 
 land, any of the pleas of the Crown, any theft which, in respect of 
 any aggravation, or of the amount in value of the money, goods, or 
 thing stolen, may be punished with penal servitude, any forgery, 
 and any uttering of any forged writing, falsehood, fi-aud, and wilful 
 imposition, uttering base coin, or the possession of such coin with 
 intent to utter the same. 
 Tiie cxpresision " offence " means any act or omission which is not a 
 crime as defined by this Act, and is punishable on indictment or 
 sununary conviction. 
 The expression " indictment " shall in Scotland include criminal letters 
 
 and criminal libel. 
 The expression " police district " means— 
 In England, — 
 
 (1.) The city of London and the liberties thereof: 
 (2.) The metropolitan police district : 
 
 (3.) Elsewhere in England, any county, riding, part, division, or 
 liberty of a county, borough, burgh, city, town, place, or 
 imion, or combination of ])laces maintaining a separate 
 police force ; and all the police under one chief constable 
 shall be deemed to constitute one force for the purposes of 
 this definition : 
 In Scotland, — 
 
 Any county, city, burgh, town, place, or combination of places 
 maintaining a separate police force ; and all the police under 
 one chief constable shall be deemed to constitute one force for 
 the purposes of this definition : 
 In Ireland, — 
 
 (1.) The police district of Dublin metropolis : 
 (2.) Elsewhere in Ireland, any district, -whether city, town, or 
 country, over wliich is appointed a sub-inspector of the 
 Koyal Irish Constabulary. 
 The expression " chief officer of police " means — 
 In P^ngland, — 
 
 (I.) In the city of London and the liberties thereof, the commis- 
 sioner of city police : 
 (2.) In the metropolitan police district, the commissioner of 
 
 police of the metropolis : 
 (3.) Elsewhere in England, the chief constable, or head constable, 
 or other officer, by whatever name called, having the chief 
 Command of the police in the police district in reference to 
 which such expression occurs : 
 In Scotland, — 
 
 The chief constable, or head constable, or other officer, by whatever
 
 37 d 38 Vict. c. 88. G89 
 
 name called, having the chief command of the police in the 
 police district in reference to which sucli expression occurs : 
 In Ireland, — 
 
 (1.) In the police district of Dublin metropolis, either of the 
 
 commissioners of police for the said district : 
 (2.) Elsewhere in Ireland, in any other police district, the sub- 
 inspector of the Rojal Irish (,'onstabulary : 
 Any act or thing by this Act authorised to be done by the chief officer 
 of police may be done by any person authorised by him in that Ijchalf 
 
 The expression "Lord Lieutenant" includes the Lords Justices or ' Lonl Lieu- 
 other chief governors or governor of Ireland for the time being. tc-uaut.' 
 
 Repeal of Acts, and Saving Clause. 
 
 21. Fi-om and after the time at which this Act comes into oj.cration, Repeal of 
 there shall be repealed, Acts. 
 
 (1.) "The Habitual Criminals Act, 18G9 :" 
 
 (2.) So much of the fourth section of " The Penal Servitude Act, 
 18G4,'' as requires the holder of a license to report himself. 
 
 Provided that the repeal enacted in this Act shall not affect any 
 penalty, forfeiture, or other jjunishment incurred or to be incurred in 
 respect of any offence committed before this Act comes into operation, or 
 any prosecution or other remedy or legal proceeding for enforcing or re- 
 covering any such penalty, forfeiture, or other punishment as aforesaid. 
 
 22. This Act shall not affect the infliction of cajiital punishment in Saving as to 
 any case where capital punishment would have been inflicted if tiiis Act capital punish- 
 had not passed. ™<^°'- 
 
 SCHEDULE above referred to. 
 
 CoLUMX 1. C'or,rM\ 2. 
 
 List of Metals. Quantities of not 
 
 ]es.s tlian 
 
 Lead, or any composite the principal ingredient of 
 
 which is lead ....... 112 lbs. 
 
 Copper, or any composite the princii)al ingredient 
 
 of which is copper ...... 3G lbs. 
 
 Brass, or any composite the principal ingi-edient of 
 
 which is brass . ...... 56 lbs. 
 
 Tin, or any composite the principal ingredient of 
 
 which is tin . . . . . . . 5G ll»s. 
 
 Pewter, or any composite the principal ingredient 
 
 of which is pewter. . - . . . ."iG 1I)S. 
 
 German silver or spelter, or any composite the 
 
 principal ingredient of which is german silver 
 
 or spelter -'"G lbs. 
 
 37 it 38 Vict. c. 88. 
 
 An Act to amend the law relating to the registration of liirths and draths in 
 Ungknid, and to consolidate the lnn' n\y><rting the registration of liirths 
 anil deaths at sea. [7fh AnguKt, 1871.] 
 
 liegisiration of /lirths and Deaths at S><i. 
 
 37. Tiic provisions of this Act, save as is herein csprcshly provided, 
 
 shall not apply to the registration of births and deaths on board a vcs.sel 
 
 at sea, with respect to which the following provisions shall have cfl'ect. 
 
 (1.) The cai)tain or master of, or otiicr pci-son h iving the command or 
 
 charge of aPritishshipshall,as soon as maybe aftcrtiie occurrence 
 
 of the birth of a child or the death of a pci-son on board sudi 
 
 sliip, record in his log-book or othcrwi.>-c the fact of .such birth or
 
 G90 Appendix of Statutes. 
 
 death, ami the iianiciihirs rctniiicd \>y tlic fourth Hchcdiile (n) to 
 this Act to l»o re^'istcrc'd concerning Kticli l)irth or death, or 
 such of them as may he known to liim, and shall (unless the 
 ship is one of Her Majesty's ships) upon tiie arrival of such 
 shij) at any jiort of the United Kingdom, or at such other time 
 or place an the Board of Trade may froni time to time with 
 respect to any ship or class of ships direct, deliver, or send, in 
 such form and manner as the lioard of Trade may from time 
 to time direct, a return of the facts so recorded to the liegistrar- 
 (Seneral of Shipi)ing and Seamen. 
 
 (2.) "Wlicre a ship which is not a British ship carries passengers to or 
 from any port of the United Kingdom as the port of destina- 
 tion or tiie port of departure of such ship, the jirovisions of this 
 section shall apply to the captain or master of, or other person 
 having the command or charge of such ship, in like manner as if 
 it were a British ship. 
 
 (3.) AVhere the said return is directed by the Board of Trade 
 (whether the ship is British or foreign) to be delivered upon the 
 arrival of tlie ship, or the discharge of the crew, or otherwise at 
 any port or place out of the United Kingdom, the Board of Trade 
 may, if they think fit, direct that the return, instead of being 
 delivered to the Eegistrar-Gencral of Shipping and Seamen, 
 shall be delivered, and the same shall accordingly be delivered, 
 if such port or place is within Her Majesty's dominions, to the 
 shipping master or collector of customs at such port or place, 
 and if it is a foreign port or place, to the principal British 
 consular officer at the said foreign port or place, and such 
 shipping master, collector, or officer shall send the same, as 
 soon as may be, by post or otherwise, to the Registrar-General 
 of Shipping and Seamen. 
 
 (I.) Whei'o it appears from any such return that the father of any 
 child so born, or if the child is a bastard the mother of such 
 child, was a Scotch or Irish subject of Her Majesty, or that any 
 l)crson whose death is mentioned in such return was a Scotch 
 or Irish subject of Her ^Majesty, the Eegistrar-CJeueral of 
 Shipping and Seamen shall from time to time send a certified 
 copy of so much of the return as relates to such birth or death 
 to the Registrar-General of Births and Deaths in Scotland or 
 Ireland, as the case may require. 
 
 (r>.) The Registrar-General of Shipping and Seamen shall from time to 
 time send to the Registrar-General of Births and Deaths in 
 England, a certified copy of every other such return, or of that 
 ])art of every such return which is not so sent to the Registrar- 
 General of Births and Deaths in Scotland and Ireland. 
 
 {a) FOURTH SCHEDULE. 
 
 „.. , . ^ T> • I ji/~.i- r Particulai-s to be Registered by 
 
 Particulars to be Registered by Captain of a , , , .„.„ „o „ qi,;., „„„„^„:„„ 
 
 ^,, . ■'^ ,T .1 4. o I (. aiitain ot a bliiii ronccrniiiK 
 
 ship coiu'crnniLC a biitli at Soa. , r> vu ♦ c„ 
 
 ^ '^ , a JJeatii at bea. 
 
 Date of birth | Date of death. 
 
 Xiime (if any) and sex of the child. . . . Name and surname. 
 
 Name and surname, and rank, profession, or occu- Sex. 
 
 pation of the lather ...... Age. 
 
 Name and suniame and maiden surname of niotlicr. Rank, profissiou, or occupation. 
 
 Nationality and last place of abode of the father Nationality and last place of 
 
 and mother ....... abode. Cause of death.
 
 39 (& 4:0 Vict. c. 20. G91 
 
 (6.) A captain of, or other person having charge of one of Her 
 Majesty's ships, shall upon the arrival of any such ship in any 
 port of the United Kingdom, or at such other time as the Com- 
 missioners of the Admiralty may from time to time direct, 
 deliver, or send, in such manner and form as the said Commis- 
 sioners may from time to time direct, a return of the facts 
 recorded in pursuance of this section to that Registrar-General 
 of Births and Deaths to whom a copy of such return would, if 
 the ship were a merchant ship, be sent under the provisions of 
 this section by the Registrar-General of Shipping and Seamen. 
 
 (7.) Every Registrar- General of Births and Deaths to whom a copy of 
 any return or a return is sent hi pursuance of this section, 
 shall cause the same to be filed and preserved in or copied in a 
 book to be kept by him for the purpose, and to be called a 
 marine register book, and such book shall be deemed to be a 
 certified copy of a register book within the meaning of the Acts 
 relating to the registration of births and deaths in England, 
 Scotland, and Ireland respectively. 
 
 (8.) Every captain, or master of, or other person having chai-ge of a 
 ship who fails to comply with this section shall be liable to a 
 penalty not exceeding five pounds for each offence, and such 
 penalty may be recovered in the same courts and ])laces, and 
 in the like manner, and when recovered shall be applied in like 
 manner, as a penalty under the ]\Ierchant Shipping Act, ly")!. 
 
 (9.) This section shall extend to all places and persons within British 
 jurisdiction. 
 
 (10.) Terms in this section shall have the same meaning as in the 
 Merchant Shipping Act, ISoi. 
 
 39 & 40 Vict. c. 20. 
 
 An Act to Facilitate the Revision of the Statute Laio hi/ suljstitiitiixj in 
 certain Acts, incorporating enactments which have been otherwise 
 repealed, a reference to recent enactments still in force. 
 
 [27 June, 187G.] 
 
 3. There shall be repealed so much of sec. 7 of the Municipal Cor- 
 poration Mortgages, etc. Act, 18G0, as provides that a pci-son guilty 
 of a misdemeanor thereunder shall be subject in respect thereof to 
 the provisions of the Act 20 «fe 21 Vict. c. 04, ajtplicable to any 
 person guilty of a misdemeanor under that Act (whicli Act lias since 
 been repealed), and in place thereof be it enacted as follows : tliat any 
 person guilty of a misdemeanor under sec. 7 of the Municipal Corporation 
 Mortgages, &c. Act, 18G(>, shall l)e subject in respect tliercof to the pro- 
 visions of the Larceny Act, ISOl, (24 cfe 2o Vict. c. 90) applicable to any 
 person guilty of a misdemeanor under sec. li> of that Act. 
 
 4. Tliere shall be repealed so much of the 2.?rd section of the 
 18 & 19 Vict. c. 12G, as provides for the definition of "property " by 
 reference to the 7 tfc 8 Geo. 4, c. 29, wliich Act has since been repealed, 
 and in place thereof be it enacted that — 
 
 "Property" as used in the 18 »k 19 Vict. c. 12G shall have the same 
 meaning as "Property"' has in the Larceny Act, 18G1. (2t k 2") Vict, 
 c. 9G). 
 
 5. There shall be repealed so much of sec. 10 of the Prevention of 
 Crimes Act, 187 1, as provides that " any pcraon convicted under that sec- 
 tion shall have a right to ajipeal against such conviction in the samo 
 manner in all lespccts as if the said conviction had been for .an oflenco 
 committed against the lu-ovisions of the Act of tlic 9 (Jeo. 4, c. Gl," 
 which last mentioned provisions have .since l»ccu repcalc<i, and in place 
 
 Y v 2
 
 C92 
 
 KiT.vt of r.< 
 jieals. 
 
 Short title of 
 Act. 
 
 Short title of 
 Act. 
 
 Restriction 
 on obligation 
 to register 
 and jilioto- 
 {iraph crimi- 
 nals. 
 
 Penalty on 
 making false 
 declarations, 
 signing false 
 documents, 
 and untruly 
 answering 
 questions, and 
 counterfeiting 
 and using 
 false docu- 
 ments. 
 
 , ii>j)('it(/i.r of Shilntcs. 
 
 tlit'icnf lie: it c'lirictcd that, : Any jiorsoii convicted under sec. 10 of the 
 Prevention of ( 'rimes Act, 1H7I, shall have a right to appeal aj,MinHt such 
 convictioji in tiic same manner in all respcctH a.s ii person n)ay appeal 
 who feels aj.'','rieved by a conviction made by a court of sununary juris- 
 diction under tho Licensing Act, 1872, and all the provisions of such 
 last-mentioned Act, and of any Act amending the same, relating to an 
 ajjpeal from a conviction made by a court of summary jurisdiction under 
 such last-mentioned Act, shall appl}' accordingly, 
 (i. The re])eals enacted in this Act shall not affect : 
 (I.) Anything <bdy done or suffered ; or 
 
 {'!.) Any ])enalty, forfeiture, or other punishment incurred or to be 
 incurred in respect of any offence against any enactment hereby 
 re])eal(!d ; or 
 (.'^.) The institution of any investigation or legal proceeding for en- 
 forcing or recovering any such ]icnalty, forfeiture, or punish- 
 ment as aforesaid, and such investigation or legal proceeding 
 may be carried on as if this Act had not passed. 
 8. This Act may be cited as " The Statute Law Revision (substituted 
 enactments) Act, 1876." 
 
 39 ct 40 Vict. c. 2.3. 
 An Act to Amend the Prevention of Crimes Act, 187L 
 
 [13 July, 1876.] 
 
 Whereas by the Prevention of Crimes Act, 1871, all persons convicted 
 of crime in the United Kingdom are required to be registered and 
 photograjjlied, and unnecessary expense is thereby incurred : 
 
 Be it therefore enacted by, &:c., as follows : — 
 
 \. This Act may be cited for all jwrposes as the Prevention of Crimes 
 Amendment Act, 1876. 
 
 2. In Great Britain the Secretary of State, and iu Ireland the Lord 
 Lieutenant, may from time to time by order prescribe the class or 
 classes of prisoners to which the enactments of the Prevention of Crimes 
 Act, 1871, relating to registry and photogi-aphing are for the time being 
 to apply ; and such enactments shall, so long as any such orders are iu 
 force, be deemed to apply to the prescribed class or classes of prisoners 
 only, and not to all persons convicted of crime. 
 
 39 k 40 Vict. c. 36. 
 All Act to Consolidate the Customs Laws. 
 
 [24 Juh/, 1876.] 
 
 Whereas it is expedient that the several Acts now iu force for the 
 management and regulation of Customs should be consolidated into one 
 Act, be it enacted, «fcc. 
 
 As to making and signing false declarations relating to the Customs, 
 falsely answering questions, and counterfeiting documents : — 
 
 168. If any person shall in any matter relating to the Customs or under 
 the control or management of the Commissioners of Customs, make or 
 subscribe, or cause to be made or subscribed, any fiilse declaration, or 
 make or sign any declaration, certificate, or other instrument required 
 to be verified by signature only, the same being false in any particulai-, 
 or if any pei-son shall make or sign any declaration made for the con- 
 sideration of the Commissioners of Customs on any application presented 
 to them, the same being untrue in any particular, or if any person 
 required by this or any other Act relating to the Customs to answer 
 questions put to him by the officers of Customs shall not truly answer 
 such questions, or if an}- pei-son shall counterfeit, falsify, or wilfully use 
 when counterfeited or falsified, any docimieut required by this or any
 
 39 cO 40 Vict. c. 3G. G93 
 
 Act relating to the Customs, or by or under the directions of tlie Com- 
 missioners of Customs, or any instrument used in the transaction of any 
 business or matter relating to the Customs, or shall alter any document 
 or instrument after the same has been officially issued ; or counter- 
 feit the seal, signature, initials, or other mai'k of or used l»y any officer 
 of the Customs for the verification of any such document or instrument, 
 or for the security of goods, or any other purpose in the conduct of 
 business relating to the Customs, or under the control or management 
 of the Commissioners of Customs or their officers, every ])erson so offend- 
 ing shall for every such offence forfeit the ])cnalty of one liundred pounds. 
 
 181. If any ship or boat liable to seizure or examination under the jsiiips not 
 Customs Act shall not bring to when required so to do, the master of bringing to 
 such ship or boat shall forfeit the sum of twenty pounds ; and on such «1'<^" i*- 
 ship or boat being chased by any vessel or boat in Her Majesty's navy *'""^7t •^•'n/ 
 having the proper pendant and ensign of Her Majesty's ship lK)isted, or ^^^ brinViii" 
 by any vessel or boat duly employed for the prevention of smuggling, to may l>e 
 having a proper pendant and ensign hoisted, it shall be lawful for the ''""eil i»to- 
 captain, master, or other person having the charge or command of such 
 
 vessel or boat in Her Majesty's navy, or employed as aforesaid (first 
 causing a gun to be fired as a signal), to fire at or into such ship or 
 boat, and such captain, master, or other person acting in his aid or by 
 his dii-ection shall be and is hereby indemnified and discharged from any 
 indictment, penalty, action, or other proceeding for so doing. 
 
 182. Any officer of Customs or other person duly employed for the Sliii.sni.iyle 
 prevention of smuggling may go on board any shij) or boat which shall ."-canheil 
 
 be withni the limits of any port of the United Kingdom or the Channel v"!',!.''!'?,, 
 
 Islands, and rummage and search the cabin and all other parts of such '.^^ 
 ship or boat for prohibited or uncustomed go(.)ds, and remain on board such 
 ship or boat so long as she shall continue within tlie limits of such port. 
 
 184. Any officer of Customs or other persons duly employed for the rersons m.iy 
 prevention of smuggling may search any por.son on board any ship or ?!!-' 'jf.'''^^''*'"! 
 boat within the limits of any port in the United Kingdom or the Channel J.[>.|1^J^\'^ j,',^^.*' 
 Islands, or any person who shall have landed from any ship or boat, pro- j,,!;.^ .siimntjlcl 
 vided such officer or other person duly employed as aforesaid shall have g.xHls are 
 good reason to suppose that such ])erson is carrying or has any uncus- o..m-cak-.I iii..in 
 tomed or prohibited goods about his person ; and if any pereon shall ^ '^■'"• 
 rescue, destroy, or attempt to destroy any goods to prevent seizure, or 
 
 obstruct any such officer or other person duly employed as aforesaid in 
 going, remaining, or returning from on board, or in searching such ship 
 or boat, or person, or otherwise in the execution of ids duty, every such 
 person shall forfeit a sum not exceeding one hundred ])ounds. 
 
 185. Before any i)erson shall be searciied he may rciinire to be taken Persons J)cforc 
 ■with all reasonable dispatcli before a justice, or before the collector or w-'-^ri-h "li'.v 
 other superior officer of Customs, who shall, if he see no reasonable cause []|'iJ",',''^^*f],r^ .., 
 for search, discharge such person; but if otherwise, direct that ho be j"„^tioo. or 
 searched, and if a female she shall not be scarci>ed by any other than u ..fti.-t-r ..f .us- 
 female ; but if any officer shall without reasonable ground cause any toms, Ac. 
 person to be searched, such officer shall forfeit and pay a sum not ex- 
 ceeding ten jiounds. If any i)assenger or other jicrson on bonnl any 
 
 such ship or boat, or who nuiy have landed from any such ship or boat, 
 shall, upon being questioned by any officer of Customs or other pcreon 
 duly employed for tlie prevention of snuiggling wlictlu'r ho lias any 
 foreign goods upon his person or in ids possession or in his bnggagc. 
 deny the same, and any such goods shall after such denial bo di.scovcred 
 to be or to have been upon ids ]iersou or in his possession or in his 
 baggage, such goods shall be forfeited, and such pci-son .shall forfeit one 
 hundred pounds, or treble the value of such goods, at the election of tiio 
 Commissioners of Customs.
 
 r.94 
 
 lllo^sally iiii- 
 jMirliiij,', im- 
 
 iciiiiivin;^' 
 froiii iiuiiy, 
 .Sec, ('.•iiTjing 
 ;;n(i(ls into 
 wiirelioUHO 
 
 willlKllt !U1- 
 
 tliMiity, II- 
 iiioviii;; from 
 wiircluiusf, 
 liailxiuiiiig, 
 raining, 
 eviulin;; ilutic.s 
 (if I'listonis, 
 ]i('iialty treble 
 value, or 
 lOOZ. 
 
 Reseuinj; 
 goods, rescuing 
 person,. issault- 
 in;;, resistinf;, 
 or obstructing 
 nrtioers. 
 
 Penalty for 
 assembling to 
 run goods. 
 
 Procuring or 
 hiring pereons 
 
 Appendix of Statutes. 
 
 IS('). I'Aory person wlio Hliall import or bring, or bo concerned in im- 
 ])urfinf,'or bringin},' intotlio United Kinj^doni, any prohil)ited goodworiiny 
 goods the importation of wiiich ia rcstiicted, contrary to such prohibi- 
 tion or restriction, whether the same bo imshipped or not; or Hhall 
 \inship, or assist or bo otherwise concerned in tho unshipping of any 
 goods wliich aro ]»roiiibited, or of any goods which arc restricted and 
 imjiorted contrary to sncii restriction, or of any goods hablc to duty, tlio 
 (hities for wliich hiivo not been paid or secured; or shall deliver, 
 remove, or withdraw from any ship, quay, wharf, or other place ])reviou3 
 to the e.xaminution thereof by the ])ro])er oflicer of Customs, unless under 
 the care or authority of such ollicer, any goods imported into tho United 
 Kingdom, or any goods entered to bo warehoused after the landing 
 thereof, so that no sufiicient account is taken thereof by tho proper 
 otlicer, or so that the same are not duly warehoused ; or shall carry into 
 the warehouse any goods entered to be warehoused or to be re- warehoused, 
 except with the authority or under the care of the proper officer of 
 Customs, and in such manner, by such person, within such time, and 
 by such roads or ways as such officer shall direct ; or shall assist 
 or be otherwise concerned in the illegal removal or withdrawal of any 
 goods from any warehouse or place of security in which they shall have 
 been deposited ; or shall knowingly harbour, keep, or conceal, or know- 
 ingly permit or suffer, or cause or procure to be harboured, kept, or 
 concealed, any prohibited, restricted, or uncustomed goods, or any goods 
 wliich shall have been illegally removed without payment of duty from 
 any warehouse or place of security in which they may have beeu deposited ; 
 or shall knowingly acquire possession of any such goods ; or shall be in 
 any way knowingly concerned in carrying, removing, depositing, conceal- 
 ing, or in any maimer dealing with any such goods with intent to de- 
 fraud Her ]\lnjcsty of any duties due tliereon, or to evade any prohibi- 
 tion or restriction of or applicable to such goods ; or shall be in any 
 way knowingly concerned in any fraudulent evasion or attempt at evasion 
 of any duties of Customs, or of the law and restrictions of the Customs 
 relating to the importation, unshipping, landing, and delivery of goods, 
 or otherwise contrary to the Customs Acts ; shall for each such offence 
 forfeit cither treble the value of the goods, including the duty payable 
 thereon, or one hundred pounds, at the election of the Commissionei-s of 
 Customs ; and the offender may either be detained or proceeded against 
 by summons. 
 
 187. Every perstni who shall rescue, or endeavour to rescue, any goods 
 seized by any otlicer of Customs or other person authorised to seize the 
 same, or before or after the seizure shall stave, break, or destroy, or endea- 
 vour to stave, break, or destroy any goods, to prevent the seizure or the 
 securing thereof by such officer or other person ; or shall rescue any 
 person ap])rehended for an}' offence punishable by fine or imprisonment 
 under the Customs Acts, or prevent or attempit to prevent his apprehen- 
 sion ; or shall assault or obstruct any officer of the army, navy, marines, 
 coastguard, customs, or other person duly employed for the prevention 
 of smuggling, in the execution of his duty, or in the seizing of any 
 goods liable to forfeiture under the Customs Acts, or shall aid, abet, or 
 assist in committing any of the foregoing offences, shall for each such 
 offence forfeit a penalty of one hundred pounds. 
 
 188. All jiersons to the number of three or more who sh:dl assemble 
 for or having so assembled shall unship, laud, run, carry, convey, or 
 conceal any spirits, tobacco, or prohibited, restricted, or uncustomed 
 goods, shall each forfeit a penalty not exceeding five hundred pounds nor 
 less than one hundred pounds. 
 
 189. Every ])erson who shall by any means procure or hire, or shall 
 depute or autliorise any other pcreon to procure or hire, any person or
 
 39 J; 40 Vict. c. 3G. Gd3 
 
 persons to assemble for the purpose of being concerned in the landing or to assemble to 
 unshipping, or carrying, convejing, or concealing any goods which are '""" goods, 
 prohibited to be imported, or the duties for which have not been paid or Pei^ons arme-l, 
 secured, shall be imprisoned for any term not exceeding twelve months, withX?'? 
 and if any person engaged in the commission of any of the above within five 
 offences be armed with tire-arms or other offensive weapons, or whether mi'es of coast, 
 so armed or not be disguised in any way, or be so armed or disguised, 
 shall be found with any goods liable to forfeiture under the Customs Acts, 
 ■within five miles of the seacoast or of any tidal river, shall be imprisoned 
 with or without hard labour for any term not exceeding three years, 
 
 190. No person shall, after sunset or before sunrise, between the Persons sig- 
 twenty-first day of Septeml)er and the first day of April, or after the nailing smm,'- 
 hour of eight in the evening, and befjre the hour of six in the morning, g'"'g ^'CRS'^''' 
 at any other time of the year, make, aid, or assist in making, any signal ["'^neil*^ana* 
 in or on board or from any ship or boat, or on or from any \)nvt of the forfeit 100/. 
 coast or shore of the United Kingdom, or within six miles of any part of or to be kej.t 
 such coast or shore, for the purjjose of giving notice to any person on V^ ^'"'■'' ''»'^'""' 
 board any smuggling ship or boat, whether any person so on board of '"" '^"'^ >^'"- 
 such ship or boat be or not within distance to notice any such signal ; 
 and if any person, contrary to the Customs Acts, shall make or cause to 
 be made, or aid or assist in making any such signal, he shall be gnilty of 
 a misdemeanor, and may be stopped, arrested, detained, and convej'cd 
 before any justice, who, if he see cause, shall commit the offender to the 
 next county gaol, there to remain until delivered by due course of law ; 
 and it shall not be necessary to prove on any indictment or information 
 in such case that any ship or l)oat was actuidly on the coast ; and the 
 offender being duly convicted, shall, by order of the Court before whom 
 he- shall be convicted, either forfeit the })cnalty of one hundred ])Ounds. 
 or, at the discretion of such Coiu't, be committed to a gaol or house of 
 correction, there to be kept to hard labour for any term not exceeding 
 one year. 
 
 l!Jl. If any person be charged witii having made or caused to be Prouf of a 
 made, or for aiding or assisting in making, any such signal as aforesaid, j^ig";'' "o'- 
 the burden of proof that such signal so charged as having been made '<^'"g '"'•'" ^" » 
 With mtent and for the purpose ot givmg such notice as aforesaid was not 
 made with such intent and for such puri)Osc, shall lie njton the defendant 
 against whom such charge is made. 
 
 192. Any person whatsoever may jn-cvent any signal being made .\iiy jierson 
 as aforesaid, and may go ujjou any lands for that puri)ose, without being >"■'>■ l""<-'vent 
 liable to any indictment, suit, or action for the same. .-le'i'-i •'. 
 
 193. If any person shall maliciously slioot at any vessel or boat IVi-SMnx 
 belonging to Her Majesty's navy, or in the service of the revenue, or sh.x.iinj; at 
 shall maliciously shoot at, maim, or wound any oHicer of tiie army, navy, ji^.^Wnavv^.T 
 marines, or coastguard, licing duly em])loycd in the prevention of smug- rcunuc m-V- 
 gling, and on full pay, or any officer of customs or excise, or any pci-son vit-u piiltv ..f 
 acting in his aid or assistance, or duly emjiloyed for the prevention of felony. 
 smuggling, in the execution of his oifice or duty, every pei-son so offend- 
 ing, and every ])erson aiding, abetting, or a-ssisting therein, shall, upon 
 conviction, be adjudged guilty of felony, and shall be liable, at tiio di.s- 
 
 cretion of the Court, to jjcnal servitude for any term not less than live 
 years, or to be imprisoned for any term not exceciling three yeai-s. 
 
 198. Whore any person, being i)art of the crew of any ship in Persons iu Hot 
 
 Iler Majesty's employment or service, shall have been detained under (he M.<.-iv.. s... 
 
 Customs Acts, such jicrson, upon notice thereof to the connnandinjj J 
 
 officer of the ship, shall be placed in security by such commanding officer „„ i„^,„i ,„,i_j 
 
 on board such ship or vessel, until retpiire<l to be luMught before ajustice wan-ant pru- 
 
 to be dealt with according to law, for which purpose such commanding curc«l. 
 oliicer shall deliver him to the detaining officer.
 
 GOG 
 
 Appendi.r of Statutes. 
 
 Any pcrNfiii 
 ('.s<-n|>in^ iii.'iy 
 aftcrwiiids lie 
 ilc'luiiiuil. 
 
 Only officevK to 
 Uike up 
 tspirits in 
 casks Slink or 
 (loiiting ujion 
 tlic sea, and 
 persons piving 
 infonnation 
 may lie re- 
 varded. 
 
 Tenuity for 
 olTeriiif; tjoods 
 for sale on 
 l)retencc of 
 lieing smug- 
 gled. 
 
 Slii]is, &c., 
 used in re- 
 moval of raw 
 goods to be 
 forfeited, &c. 
 
 190. If luiy pcismi li;iljle to bo (ktiiiiicil under the Customs Acts 
 hIiuII not lie dctiiiiied ut tlic time of committing tlie oflence, or beinj^ 
 defiiined, sliivU escape, lie may afterwards l)e detained at any place in the 
 United Kingdom within three years from the time such oflence was com- 
 mitted, and if detained, may l)e taken l)eforc any Justice to be dealt with 
 iis if ho had been detained at the time of committing such offence, or if 
 not 80 detained, may be proceeded against by information and sum- 
 mons. 
 
 liUO. If any jiei'soii, nut being an oflicer of the navy, customs, or 
 excise, shall intermeddle with or take up any spirits being in casks of less 
 content than twenty g dlons found floating upon or sunk in the sea, such 
 spirits shall be forfeited, together with any vessel or boat in which they 
 may be found ; but if any i)erson shall give information to any such 
 oflicer so that seizure of such spirits may be made, he shall be entitled to 
 such reward as the Commissioners of Customs may direct. 
 
 201. If any person sliall olFer for sale any goods under pretence 
 that the same are prohibited, or have been unshipped and nui ashore 
 without })aymcnt of duties, all such goods (although not liable to any 
 duties or prohibited) shall be forfeited, and every person so offering the 
 same for sale shall forfeit treble the value of such goods. 
 
 202. All ships, boats, carriages, or other conveyances, together 
 with all horses and other animals and things made use of in the importa- 
 tion, landing, removal, or conveyance of any uncustomed, prohibited, 
 restricted, or other goods liable to forfeiture under the Customs Acts shall 
 be forfeited, and all ships, boats, goods, carriages, or other conveyances, 
 together with all horses and other animals and things liable to forfeiture, 
 and all persons liable to be detained for any offence under the Customs 
 Acts, or any other Act whereby olhcers of Customs are authorized to 
 seize or detain persons, goods, or other things, shall or may be seized or 
 detained in any place either upon land or water by auy of the following 
 persons, being duly employed for the prevention of smuggling, that is to 
 say, any officer of Her Majesty's army, navy, marines, coastguard, cus- 
 toms, or excise, or by any person having authority from the Commis- 
 sioners of Customs or Inland Revenue to seize, or by any constable or 
 police officer of any county, city, or borough in the United Kingdom so 
 employed with the sanction of the magistrates having jurisdiction 
 therein, or under or by virtue of any Act in relation thereto, and all 
 ships, boats, goods, carriages, or other conveyances, together with all 
 horses and other animals and things so seized, shall forthwith be deli- 
 vered into the care of the collector or other ipro})er officer of customs at 
 the nearest custom-house ; and the forfeiture of any ship, boat, carnage, 
 animal, or other things shall be deemed to include the tackel, apparel, 
 and furniture thereof, and the forfeiture of any goods shall be deemed to 
 include the package in which the same are found, and all the contents 
 thereof. 
 
 203. Any officer of customs, excise, coastguard, constabulary, police, 
 or other person duly employed for the prevention of smuggling, may, 
 upon reasonable suspicion or probable cause, stop and examine any cart, 
 I waggon or other conveyance, to ascertain whether any smuggled goods 
 are contained therein ; and if none shall be found, the officer or other 
 person shall not, on account of such stoppage and examination, be 
 liable to any prosecution or action at law on account thereof, and any 
 person driving or conducting such cart, waggon, or other conveyance, 
 refusing to stop or allow such examination when required in the Queen's 
 name, shall forfeit not less than twenty nor more than one hundred 
 pounds. 
 Oflicei-s author- 204. All writs of assistance issued from the Court of Exchequer or 
 ized by writ of other proper Court shall continue in force during the reign for which 
 
 Officers of 
 customs may, 
 on probable 
 cjvuse, st<:ip 
 carts, &o. , am 
 search for 
 goods.
 
 39 cC- 40 Vict. c. 3G. G'j7 
 
 tliey were granted, and for six mouths afterwards ; and any officer of assistmc^ or 
 Customs or person acting under tlie direction of the Commissioners of warrant may 
 Customs, having such writ of assistance or any warrant issued by a ^^^^^^ hous&s 
 justice of the peace may, in the day time, enter into and search any [omedTpro- 
 house, shop, cellar, warehouse, room, or other place, and in case of resist- Libited goods" 
 ance, break open doors, chests, trunks, and other packages, and seize 
 and bring away any uncustomed or prohibited goods, and i)ut and secure 
 the same in the Queen's wai-ehouse, and may take witli liim any con- 
 stable or police officer, who may act as well without as within the limits 
 of the district or place for which he sliall have been sworn or appointed. 
 
 205. If any officer of customs shall have reasonable cause to suspect Ortioers may 
 that any uncustomed or prohibited goods are harboured, kept, or con- search pre- 
 cealed in any house or other place either in the United Kin<'-dom or the ""'*''''* ''•' ^*'"'' 
 Channel Islands, and it shall be made to appear by information on oatli on'reaTonltle 
 before any justice of the peace in the United Kingdom or the Channel cause' shown. 
 Islands, it shall be lawful for such justice, by special warrant under his 
 
 hand, to authorize such officer to enter and search such house or other 
 place, and to seize and carry away any such uncustomed or prohibited 
 goods as may be found therein ; and it shall be lawfid for such officer, 
 and he is hereby authorized, in case of resistance, to break ojten any 
 door, and to force and remove any other impediment or obstruction to 
 such entry, search, or seizure as aforesaid ; and such officer may, if he 
 see fit, avail himself of the service of any constable c)r police officer io 
 aid and assist in the execution of such warrant, and any constable or 
 other police officer is hereby required when so called upon, to aid and 
 assist accordingly. 
 
 206. If any such goods liable to duties of customs, or prohibited to be Goods stopjicd 
 imported, or in any way restricted, shall be stopped or taken by any police ^'i' j"'*^.''-"*-' '"">' 
 officer on suspicion that the same had been feloniously stolen, lie may •^. '"'-''•V'"-""^'" 
 carry the same to the police office to whicli the offender if detained is char-^d witli "* 
 taken, there to remain until, and in order to be produced at the trial stealing 
 
 of such offender, and in such case the officer is required to give notice them, 
 in writing to the Commissioners of Customs of such stoppage or de- 
 tention, with the particulars of the goods ; but immediately after such 
 stoppage, if the offender be not detained, or if detained immediately 
 after the trial of such offender, such officer shall convey to and deposit 
 the goods in the nearest customs warehouse, to be proceeded against 
 according to law ; and if any police officer so detaining any such goods 
 shall neglect to convey the same to such warehouse, or to give tlie 
 notice hereinbefore prescribed, he shall forfeit a siun not exceeding 
 twenty pounds. 
 
 207. Whenover any seizure shall be made, unless in the jiossession or Notice to W 
 in the presence of the offender, master, or owner, as forfeited under the jjivcn hy Boi«- 
 Customs Acts or under any Act by which customs oHiccrs are eniiiowered "''^' ""'•■<-•»■'" 
 
 , 1 . .1 ,,• 1 II • 1- • -i- o 1 owner i>f Kliiii, 
 
 to make seizures, tlie seizing otiicer sliall give notice ni writing of such ^, . ' , 
 seizure and of tlie grounds thereof to the master or owner of the things :. 
 
 seized, if known, either by delivering the same to him personally or by n. el 
 
 letter addressed to him and transmitted i)y jiost to or delivercti at hi.s ^'''"" f">c 
 last known place of abode or business, if known ; and all seizures made p',.'iilt,' hie 
 under the Customs Acta, or under any .Vet by wliich customs othccrs j{oo.|ii. *c., 
 are empowered to make seizures, shall be deemed and taken to be con- m.iy U- koM. 
 demned, and may be sold or otherwise dispiKsed of in such manner as tho 
 C^ommissiouersof Customs may direct, unless the person from whom such 
 seizure shall have been made, or the master or owner tlioreof, or .sonic 
 person authorized by iiim, shall, within one calendar month from the 
 day of seizure, give notice in writing, if in liondon, to tho person seizing 
 the same, or to the secretary or solicitor for the Customs, and if else- 
 where, to the person seizing the same, or to the collector or other chief
 
 G98 
 
 DisJIOSJll of 
 
 sioiiures. 
 
 Seizures may 
 lie restored ami 
 IHinislinient 
 mitigated. 
 
 OlTencos on the 
 water and 
 jurisdiction. 
 
 rersons in"e- 
 viously Con- 
 victed may, on 
 verdict, lie im- 
 prisoned in 
 llousc of Cor- 
 rection. 
 
 Appendix of Stat n tcs. 
 
 ofllcor of (')istnniH at the nearest ])ort, tliat he ehiirn.s the tirm;,'s so seized 
 or intends to claim them, wherenpon proceed in j,'h shall be taken for the 
 forfeitnro or condemnation thereof either by information filed in the 
 J'lxcheiiuer Division of the Hi^;h Court of Justice in England on the 
 lievenuc side, or cxhiliitcd before any ju.sticc of the peace; but if any 
 thin"s so seized shall be of a perishal)]e nature, or consist of horses or 
 other animals, the same may by direction of the Commissioners of (Jus- 
 tonis be sold, and the proceeds thereof retained to abide the result of any 
 claim that may legally be made in respect thereof. 
 
 1208. All seizures whatsoever which shall have been made and con- 
 demned under tlie Customs Acts or any other Act by which seizures are 
 authorised to be made by officers of customs shall be disposed of in such 
 manner as the Commissioners of Customs may direct. 
 
 209. When any seizure shall have been made, or any fine or penalty 
 incurred or inflicted, or any person committed to prison for any offence 
 under the Customs Acts, the Commissioners of the Treasury or Customs 
 may direct the restoration of such seizure, whether condemnation shall 
 liave taken i)lacc or not, or waive proceedings, or mitigate, or remit such 
 fine or penalty, or release from confinement either before or after convic- 
 tion such person on any terms and conditions as they shall see fit. 
 
 221). Wiiere any oflence shall be committed in any place upon the 
 water not being within any county of the United Kingdom, or where the 
 orticers have any doubt whether such place is within the boundaries or 
 limits of any such county, such oft'ence shall for the purposes of the Cus- 
 toms Act be deemed and taken to be an offence committed on the high 
 seas ; and for the ptirpose of giving jurisdiction under such Acts, every 
 offence shall be deemed to have been committed, nnd every cause of com- 
 plaint to have arisen, either in the place in which the same actually was 
 committed or arose, or in anyplace on land where the offender or person 
 complained against may be or be brouglit. 
 
 237. When any verdict shall pass or conviction be had against any 
 person for any offence against the Customs Acts, and he shall have been 
 adjudged to pay a penalty exceeding one hundred pounds, the presiding 
 judge or justice may, if for a first offence, commit the offender to prison 
 for not less than six nor more than nine months, and if for a subsequent 
 offence, may order that the offender shall, in lieu of payment of the 
 iienalty, be imprisoned in gaol, or house of correction, with or without 
 hard labour, for a period of not less than six nor more than twelve 
 months, and the governor or keeper of such gaol or house of correction 
 is hereby required to receive any person committed under such order. 
 
 In whose 
 names indict- 
 ments or suits 
 to l>e pre- 
 ferred. 
 
 The Attorney- 
 General or 
 Lord Advocate 
 in.\v enter a 
 nolle prosequi. 
 
 Suits, &c., to 
 be exhilntcd 
 
 As to Prosecutions by Indictment or Information. 
 
 2.").'). All indictments or suits for any offences or the recovery of 
 anv penalties or forfeitures under the Customs Acts shall, except in the 
 cases where summary jurisdiction is given to justices, be prefen-ed or 
 commenced in the name of Her Majesty's Attorney-General for England 
 or Ireland, or of the Lord Advocate of Scotland, or of some officer of 
 Customs or Inland Revenue. 
 
 2-30. In any prosecution for recovery of any fine, penalty, or forfeiture 
 incurred under the Customs Acts, Her Majesty's Attorney-General for 
 J'^u'dand, Her Majesty's Attorney-General for Ireland, or the Lord 
 Advocate of Scotland, if satisfied that such fine, penalty, or forfeiture 
 was incurred without any intention of fraud, or that it may be inex- 
 pedient to proceed in the said prosecution, may enter a nolle prosequi or 
 otherwise on such information. 
 
 2-')7. All suits, indictments, or informations brought or exhibited for 
 anv offence against the Customs Acts in any court or before any justice,
 
 39 ^ 40 Vict. c. 3G. 
 
 shall be brought or exhibited within three years next after the date of 
 the offence committed. 
 
 258. Any indictment, prosecution, or infurmatiou which may be insti- 
 tuted or brought under the direction of the Commissioners of Customs 
 for offences against the Customs Acts shall and may be inquired of, 
 examined, tried, and determined in any county of England when the 
 offence is committed in EngLand, and in any county of° Scotland when 
 the offence is committed in Scotland, and in any comity in Ireland wlieix 
 the offence is committed in Ireland, in such manner and form as if tlie 
 offence had been committed in the said county where the said incUct- 
 ment or information shall be tried. 
 
 As fo Proofs ill Proceedinrjs. 
 
 259. If in any prosecution in respect of any goods seized fur non- 
 payment of duties, or any other cause of forfeiture, or fur the recoveriu"- 
 any penalty or penalties under tiie Customs Acts, any disputes sliall arise 
 whether the duties of Customs have been paid in respect of such goods, 
 or whether the same have been lawfully imported or lawfully unshipped, 
 or concerning the place from whence such goods were brought, then and 
 in every such case the proof thereof shall be on the defendant in such 
 prosecution, and where any such proceedings are had in the Exchccpier 
 Division of the High Court of Justice on the Revenue side, the defendant 
 shall be competent and compellable to give evidence. 
 
 260. The averment that the Commissioners of Customs or Inland 
 Revenue have directed or elected that any information or proceedin" 
 luider the Customs Acts shall be instituted, or that any ship or boat is 
 foreign or belonging wholly or in jjart to Her Majesty's subjects, or tliat 
 any person detained or found on board any ship or boat liable to sciziu-e 
 is or is not a subject of Her Majesty, or that any goods thrown overboai-d, 
 staved or destroyed, were so thrown overboard, staved or destroyed 
 to prevent seizure, or that any goods thrown overboard, staved or de- 
 stroyed during chase by any ship or boat in Her Majesty's service, or in 
 the service of the Revenue, were so thrown overboard, staved or dcst roved 
 to avoid seizure, or that any person is an officer of customs or excise, 
 or that any person was emploj'cd for the prevention of smuggling, or 
 that the offence was committed within the limits tif any port, or where 
 the offence is committed in any port of the United Kingdom, the namiu" 
 (if such port in any information or proceedings shall be deemed to be 
 sufiicient, unless the defendant in any such case shall prove to the 
 contrary, 
 
 2G1. If, upon any trial, a cpiestion shall arise whether any pci-son is an 
 officer of the army, navy, marines, or coastguard, duly euiploycd for the 
 jircvcntion of smuggling, or an officer of customs or excise, his own evi- 
 dence thereof, or other evidence of his iiaving acted ass sncii, shall be 
 deemed sufficient, without production of his connnission or dci)ntation ; 
 and every such officer, and any person acting in ins aid or assistance, .shall 
 be deemed a competent witness upon the trial of any suit or iufornmtioii 
 on account of any seizure or penalty as aforesaid, notwitlistamiinjj sucli 
 officer or other person may be entitled to the wiiolo or any part of such 
 seizure or penalty, or to any reward upon the conviction of the party 
 charged in such suit or information. 
 
 202. Upon the trial of any issue, or upon any judicial hearing or in- 
 vestigation touching any seizure, jjenalty, or forfeiture, or otiior proceed- 
 ing untler the Customs Acts, or any Act relating to (lie cxoi.se. or iiu-iilont 
 thereto, where it may be necessary to give proof of any onler issued l»y 
 tiie Commissioners of the Treasury, or by the Conunissioners of Customs, 
 or Inland Revenue respectively, the order, or any letter or instructions 
 referring thereto, which shall have been ollicialiy received by any ofticcr 
 
 G.09 
 
 witliin tliree 
 years. 
 
 Indictnients or 
 inforin.-itions 
 raay he triol 
 ill any county 
 in Eugliuid, 
 Scotland, or 
 Ireland, re- 
 siiectivfly. 
 
 Defoudaiit'.s 
 jirnof ill siuuj 
 fling ciuses. 
 
 Averments in 
 
 smuggling 
 
 cases. 
 
 Kvidcnce tliat 
 jwirty is .in 
 ortiicr, coiniHS- 
 t«ncy of wii- 
 ncjiii. 
 
 Wli.tl Hhatl Ih) 
 e\ idi'iii-i' of 
 ord< r iif 
 TrciiMiry, or 
 C"">n)nii's>'ii>iiorr» 
 of ('ust«inis, cr 
 Inland 
 Revenue.
 
 700 AjqKiiiVix of Si a ink's. 
 
 of customs or cxi-isc for his ^^'ovcniiucnt, and under wliicli lie sliall have 
 
 acti'd us such olliccr, shall 1)0 admitted and taken as Kutlicient evidence 
 
 and jiroof of such order. 
 Kviil.ii..' c.f L'O.S. Condemnation by any justice under the Customs laws may he 
 
 (•i.ii(lciiiMHti>iii proved in any court of justice, or before any competent tribunal, by the 
 ill I'.iif.iime. p,-,Hluction of a certificate of such condemnation purporting to be signed 
 
 bv Kucii justice, or an examined eopy of the record of such condemnation 
 
 cci'tilicd I)y the ek-rk to such justice. 
 
 MisrellaneoHs Matters as to the Interpretation of Terms used in this Act. 
 
 Interprctalion 2S4. For the piu-poses of this or any other Act relating to the Customs 
 of terms. and in construing the same, the ft)llo\ving terms, when not inconsistent 
 
 with the context or subject matter, shall have the several meanings, and 
 include the several mattei-s and things hereinafter })rescriijed and as- 
 signed to them ; that is to say : 
 
 ' Attorney-Cieneral ' shall include solicitor-general, attorney-general in 
 the Isle of Man, procurcur, or other chief law officer of the Crown, in any 
 of Her Majesty's possessions abroad, where there is no attorney-general, 
 
 ' British possession ' shall mean and include colony, plantation, island, 
 territory, or settlement belonging to Her Majesty. 
 
 ' Channel Islands ' shall mean the islands of Guernsey, Jersey, Alder- 
 ney, and Sark, and their respective dependencies. 
 
 ' Commissioners of the Treasury ' shall mean the Lords Commissioners 
 of Her Majesty's Treasury. 
 
 ' County ' shall mean and include any citj', county of a city, connty of 
 a town, borough, or other magisterial jurisdiction where such construc- 
 tion is not inconsistent with the context. 
 
 ' Customs Acts ' shall mean and include this and all or any other Acts 
 or Act relating to the Customs. 
 
 ' Exporter of goods for which no bond is required ' shall include and 
 apply to the person subscribing the declaration required at the foot of 
 the specification forms No. 8 and No. 9, or manifest in lieu thereof, as 
 the case may be. 
 
 ' Drawback ' shall include bounty. 
 
 'Gaoler' shall mean and include any governor or keeper of Her 
 Majesty's prisons. 
 
 ' Her Majesty ' shall mean Her Majesty, her heirs and successoi-s. 
 
 ' Importer' shall mean, include, and apply to any owner or other per- 
 son for the time being possessed of or beneficially interested in any goods 
 at and from the time of the importation thereof, until the same are duly 
 delivered out of the charge of the officers of (.'ustoms. 
 
 'Justice' sliall mean and include justice of the peace, county court 
 judge, recorder, sheriff depute, governor, deiiuty governor, lieutenant- 
 governor, bailitl", chief magistrate, deemster, jurat, and any other magis- 
 trate in the United Kingdom and the Channel Islands. 
 
 ' Master ' shall mean the person having or taking the charge or com- 
 mand of any ship. 
 
 ' Official import lists and official export lists ' shall mean any lists which 
 are now or shall from time to time be issued under the authority of the 
 Commissioners of the Treasury or Customs, prescribing the denominations, 
 descriptions, and quantity by tale, weight, measure, value, or otherwise, 
 by which articles of merchandise shall be required to be entered on their 
 importation into or exportation from the I'nited Kingdom. 
 
 ' Proper officer of Iidand Revenue,' in the fourth section of the Act of 
 the thirty-seventh and thirty-eighth years of Her ^Majesty's reign, shall 
 mean ' proper officer of customs.' 
 
 ' Queen's warehouse ' shall mean any place provided by the Crown or
 
 39 & 40 Vict. c. 3G. 
 
 approved by the Commissioners of Customs fur the deposit of goods for 
 security thereof and of the duties due thereon. 
 
 ' Warehouse ' shall mean any place in which goods entered to be ware- 
 housed may be lodged, kept, and secured. 
 
 288. The several Acts and parts of Acts set forth iu Schedule (A.) to 
 this Act annexed are hereby reiealcd, to the extent to which such Acts 
 or parts of Acts are by such Schedule expressed to be repealed, 
 except as to any thing done before the commencement of this 
 Act, and except so fiir as relates to any arrears of duty or to any 
 drawback wdiich shall have become due or payable, and except so 
 far as may be necessary for the purpose of supporting or continuing 
 any proceeding heretofore taken or to be taken after tlie commeucc- 
 ment of this Act, and except as to the recovery or application of any 
 penalty for any offence which shall have been committed, or any 
 forfeiture which shall have been incurred before the commencement 
 of this Act ; and all orders made by Her Majesty in Council, all 
 bonds taken or licences granted, and all things done under the autho- 
 rity or in pursuance of any of the Acts hereby repealed, shall nevertheless 
 be valid and effectual ; and all commissions, deputations, and appoint- 
 ments granted to any officer of customs in force at the commencement of 
 this Act shall continue in force as if the same had been granted under 
 the authority of this Act ; and all bonds or other securities which shall 
 have been given by or for such officers and their resjjective sureties for 
 good conduct or otherwise shall remain in force ; and all warrants, 
 licences, orders, and regulations made by the Commissioners of the Trea- 
 sury or the Customs under any Act or Acts relating to the Customs now 
 repealed, shall remain in force imtil altered, revoked, or rescinded, or 
 others made by them in lieu thereof; and all Acts done in pursuance of 
 any such orders and regidations shall be and are hereby declared to be 
 valid ; and all ports, inland bunding places, havens, creeks, and I)oardiug 
 stations, legal quays, sufferance wliarves and warehouses ajipointed or 
 approved under any of the Acts hereby repealed, sliall continue initil the 
 appointment or approval thereof shall be annidleil, varied, or altered by 
 tlie said Commissioners. 
 
 21)0. This Act shall come into operation on the day of the jiassing of 
 this Act, and in citing it in other Acts of Parliament and in legal instru- 
 ments it shall be sufficient to use the expression " The Customs Consoli- 
 dation Act, 1876." 
 
 SCHEDULE (A) OF ACTS TO V.K WVA'KWAA). 
 
 701 
 
 Act* set forth 
 in schedule ^A) 
 rei'caleil. 
 Orders, kc, 
 under Acts re- 
 jtealed to he 
 valiil. Coni- 
 niis.<iiui)s, dejiu- 
 tiitions, lK)uds, 
 kc, to remain 
 in force. 
 Warranto, 
 orders, and 
 reguhitious to 
 lemain in 
 force. Ports, 
 lionding jdaces, 
 havens, creeks, 
 &c., to con- 
 tinue. 
 
 Date of Act. 
 
 Title of Act. 
 
 Extent of Repeal. 
 
 8 & 9 Vict. c. 85. 
 
 An Act for the Management of 
 the Customs. 
 
 Sections 2 i 3. 
 
 Hi kV Vict. c. 107. 
 
 An Act to amend ami consoli- 
 
 Till- whole .\et, cxcejtt we- 
 
 
 date the hiws ri'latinfj to 
 
 tions 114. 11. 'i. and 116, 
 
 ■ 
 
 the Customs (if till' I'nitiMl 
 
 ndating t<> canls ; nee- 
 
 
 Kingdom and of tlic Isle of 
 
 tions l«ir..ltit5, IM. 182, 
 
 
 Alan, and certjiin laws re- 
 
 183, 1S5, 187. and 188, 
 
 
 lating to Trade antl Naviga- 
 
 8o far o-s tin')' ndnte to 
 
 
 tion and the I'.ritish pos-ses- 
 
 thos«' of Mrr Majesty's 
 
 
 sions. 
 
 1 
 
 j»osse»sionH almwd in 
 which otlnr |in>vi.Hion« 
 have not hnn itulwti- 
 tutol I'V I.<».nl Act or 
 Ordinance with the 
 winction of Her Ma- 
 jesty ; sections H2\ to 
 yj?, l>oth inclusive, and 
 
 Commence- 
 ment of Act, 
 ic. 
 
 Schedule
 
 702 
 
 Appendix of Statutes. 
 
 Date of Act. 
 
 18 k 10 Vi.t. c. 96. 
 
 IS & ]ii Vict. c. 97. 
 11) k 20 Vict. c. 75. 
 
 20 Vict. c. 15. 
 
 20 & 21 Vict. c. 61. 
 
 20 & 21 Vict. c. 62. 
 
 21 Vict. c. 12. 
 
 22 & 23 Vict. 0. 37. 
 
 23 Vict. c. 22. 
 
 23 & 24 Vict. c. 36. 
 
 24 Vict. c. 20. 
 
 25 Vict. c. 22. 
 
 26 Vict. c. 22. 
 
 27 Vict. c. 18. 
 
 28 Vict. c. 30. 
 
 28 & 29 Vict. c. 95. 
 
 30 Vict. c. 10. 
 30 Vict. c. 23. 
 
 30 & 31 Vict. c. 82. 
 
 31 Viot. c. 28. 
 
 Title of Act. 
 
 The Rii]ii.leiiicntal Cu.stom.s 
 Consolidiition Act. 
 
 The Customs TarilT Act, 1855. 
 
 The Customs Laws and Duties 
 Amendment Act, 1856. 
 
 The Customs Duties Amend- 
 ment Act, 1857. 
 
 Tlie Customs and Excise Duties 
 Act, 1857. 
 
 The Customs Amendment Act, 
 1857. 
 
 The Customs Duties Act, 1858. 
 
 The Customs Amendment Act, 
 1859. 
 
 The Customs Tariff Amend- 
 ment Act, 1860. 
 
 The Customs Inland Bonding 
 Act, 1860. 
 
 The Customs and Inland Re- 
 venue Act, 1861. 
 
 The Customs and Inland Ee- 
 veuue Act, 1862. 
 
 The Customs and Inland I\o- 
 venue Act, 1863. 
 
 The Customs and Inland IJe- 
 venue Act, 1864. 
 
 The Customs and Inland Ke- 
 venue Act, 1S65. 
 
 The Sugar Duties and Draw- 
 backs Act, 1865. 
 
 The Sugar Duties Act, 1867. 
 
 The Customs and Inland Re- 
 venue Act, 1867. 
 
 The Customs Amendment Act, 
 1867. 
 
 The Customs and Income Tax 
 Act, 1868. 
 
 Extent of Repeal. 
 
 329 to 331, both inclu- 
 sivf, ndating to rt-ci- 
 ■jirocity in coiiiiiierne ; 
 and Koctions 332, 333, 
 and 335 to 311, botli 
 inclusive, and also 343, 
 344, and 34.5, ndating 
 to the, acquisition and 
 disposal of lands. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act except sec- 
 tion 6. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 
 So much as relates to Cus- 
 toms. 
 
 So much as relates to Cus- 
 toms. 
 
 So much as relates to Cus- 
 toms. 
 
 So much as relates to Cus- 
 toms. 
 
 So nmch as relates to Cus- 
 toms. 
 
 The whole Act. 
 
 The whole Act. 
 
 So much as relates to Cus- 
 toms. 
 
 The whole Act. 
 
 So much as relates to Cus- 
 toms.
 
 39 d; 40 Vict. c. 48. 
 
 703 
 
 Date of Act. 
 
 Title of Act. 
 
 Extent of Repeal. 
 
 32 & 33 Vict. c. 14. 
 
 The Customs and Inland Re- 
 venue Duties Act, 1869. 
 
 So much a-s relates to Cus- 
 toms. 
 
 33 Vict. c. 12. 
 
 The Customs (Isle of Man) Act, 
 1870. 
 
 The whole Act. 
 
 33 & 34 Vict. c. 32. 
 
 The Customs and Inland Re- 
 venue Act, 1870. 
 
 So much as relates to Cus- 
 toms. 
 
 34 Vict. c. 21. 
 
 The Customs and Income Ta.x 
 Act, 1871. 
 
 So much as relates to Cus- 
 toms. 
 
 36 Vict. c. 29. 
 
 The Customs Sugar Duties (Isle 
 of Man) Act, 1873. 
 
 Tlie whole Act. 
 
 37 & 38 Vict. c. 16. 
 
 The Customs and Inland Re- 
 venue Act, 1874. 
 
 So much us relates to Cus- 
 toms. 
 
 39 & 40 Vict. c. 45. 
 
 A)i Act to Consolidate and Amend the Laivs relating to Industrial and 
 Provident Societies. 
 
 [11 th August, 187G.] 
 
 Whereas it is expedient to consolidate and amend the law relating to 
 Industrial and Provident Societies, and to assimilate the same in cer- 
 tain respects to the law relating to Friendly Societies. 
 
 Be it enacted by, &c., as follows : — 
 
 1. This Act may be cited as " The Industrial and Provident Societies 
 Act, 1876." 
 
 2. This Act shall extend to Great Britain and Ireland and the Channel 
 Islands. 
 
 11. Registered societies shall be entitled to the following jirivi- 
 leges : — 
 
 (1.) The registration of a society shall render it a body corporate by 
 the name described in the acknowledgment of registry l)y which 
 it may sue and be sued, with perpetual succession and a annmim 
 seal, and witli limited liability ; and shall vest in the society all 
 property for the time being vested in any person in trust for 
 the society ; and all legal proceedings pending by or against the 
 trustees of any such society may be jirosecuted by or against 
 the society in its registered name without abatement. 
 24. Every instrument or document, copy, or extract of an instnunent 
 or document, bearing the seal or stamj) of the central ollice, .shall be re- 
 ceived in evidence without further pn)of; and every document |iurporting 
 to be signed by the chief or any assistant registrar, or any inspector or 
 public auditor under this Act, shall, in the absence of any evidence to 
 the contrary, be received in evidence without proof of the signatui-c. 
 
 Iiiilustri:il and 
 Provident 
 Societies Act, 
 1S76. 
 
 .•V.) k 10 Vict. c. IS. 
 An Art to Amend tlir Law vjtl, n/erencr to Bankcm Jiooh Kvidrm'f. 
 
 [Wth Auffust, 1870.] 
 
 Whereas serious iuconvenioncc lias been occasioned to bankers and 
 also to the pul)lic by roa.son of tlie ledgensand other account books having 
 been removed from tlie banks for the purpose of being produced in legal 
 proceedings.
 
 701 A/>j>fii(Ji'.r of S/dfi'fj'fi. 
 
 Ami wliorcas it is cxpciliciit to fucilitutc tlic imiof of tlic traiiHOctioiiH 
 rcitiidcd ill such lc'(.i<;ors iuid account liooks : 
 \\v it tlicrcforo enacted, i^'c, as follows ;- 
 Slioii liilc. 1. 'I'liis Act may be cited for all purposes as " The I'.aidvcrs IJ<jok8 Evi- 
 
 dence Act, 1^70." 
 IiiUTinctiilinn -. Tiie word ' baidv ' in tiiis Act shall mean any pers<jn or persons, 
 
 clause. partnersiiip or company, carryin;^ on the business of bankers, and who at 
 
 the commencement of each year shall have made their return to the 
 Conniiissioners of Inland Ilevenue, and any savings' bank certified under 
 the Act of 18G:l 
 
 The words 'legal proceedings' in this Act shall include all proceedings, 
 whether preliminary or final, in courts of justice, both criminal and civil, 
 legal and eijuitable, and shall include all jjroceedings, whether prelimi- 
 nary or final, by way of arbitration, examination of witnesses, assessment 
 of damages, compensation, or otherwise, in which there is power to ad- 
 minister an oath. 
 
 The words 'the court' in this Act shall mean the court, judge, magis- 
 trate, sheriff, arbitrator, or other person authorized to jtreside over the 
 said legal proceedings for tiie time being, and shall include all persons, 
 judges, or officers having jurisdiction and authorized to preside over or to 
 exercise judicial control over the said legal proceedings or the procedure 
 or any steps therein. 
 
 The words ' a judge of one of the superior courts ' shall mean respec- 
 tively a judge of Her Majesty's High Court of Justice in so far as this Act 
 applies to England and AVales, a lord ordinary of the outer house of the 
 Court of Session in Scotland in so far as it applies to Scotland, and a 
 judge of one of the superior courts at Dublin in so far as it a])plies to 
 Ireland. 
 
 Sects. 3, 4, and 5. Sec vol. 3, pp. 438, 439. 
 rower under 6. On the application of any party to any legal proceedings who has 
 
 order of court received such notice, a judge of one of the su])erior courts may order that 
 to inspect such party be at liberty to insiiect and to take copies of any entry or 
 
 >>nr>L-c -111.1 i'An 111 111 111 1 ll,' 
 
 entries m the ledger, day books, cash books, or other account books of 
 any such bank relating to the matters in question in such legal proceed- 
 ings, and such orders may be made by such judge at his discretion either 
 with or without summoning before him such bank or the other party or 
 ])artics to such legal proceedings and shall be iutimated to such l)auk at 
 least three days before such copies are required. 
 Sect. 7. See vol. 3, p. 439. 
 Bank not c<im- 8. No bank shall be compellable to produce the ledgers, day books, 
 pellaWe to pro- cash books, or other account books of such bank in any legal proceedings, 
 duce hooks unless a judge of one of the superior courts specially orders that such 
 
 tab oases ^*^'' ledgers, day books, cash book.s, or other account books should be produced 
 at such legal proceedings. 
 Sect. 9. See vol. 3, p. 439. 
 
 39 cl' 10 Vict. c. oT. 
 
 An Act to Amend the Law respecting the Holding of Winter Assi2es. 
 
 in th August, 1876.] 
 
 Whereas it is usual to hold winter assizes in some counties, and not to 
 hold them in other counties in which there are but few* prisoners await- 
 ing trial, and it is expedient to provide for the more sj^eedy trial of such 
 last-mentioned prisonei-s : 
 
 Be it therefore enacted, etc : — 
 Short title. 1. This Act may be cited as " The "Winter Assizes Act, 1S76." 
 
 books and take 
 copies
 
 39 cO 40 Vict. c. 57. 
 
 2. Where it appears to Her Majesty that by reason of the small num- 
 ber of prisoners or otherwise it is usually inexpedient to hold separate 
 winter assizes for any county, it shall be lawful for Her Majesty by Order 
 in Council from time to time to provide in such manner and snhject to 
 such regulations as to Her :\rajesty may seem meet for all ur any of the 
 followang matters : 
 
 (1.) For uniting such county for the purpose of winter assizes to any 
 neighbouring county or counties ; and 
 
 (2) For the appointment of the place or places at which winter assizes 
 
 are to be held for such united counties, with power to direct 
 that they shall be held at different places in different years ; 
 and 
 
 (3) For the jurisdiction of the court and the attendance, jurisdiction, 
 
 authority, and duty of sheriffs, gaolers, officers, jurors, and per- 
 sons, the use of any prison, the removal of prisoners, tlio 
 alteration of any commissions, writs, precepts, intlictments, 
 recognizances, proceedings, and documents, the transmission of 
 recognizances, inquisitions, and documents, and the expenses 
 of prosecutors and witnesses, and of maintaining and removiu" 
 prisoners, so far as may seem to Her Majesty necessary fur 
 carrying into effect an Order in Council under this Act ; and 
 
 (4) For any matters which appear to Her Majesty to be necessarj' or 
 
 proper for carrying into effect an Order in Council under this 
 Act. 
 
 An Order in Council purporting to be made in pui*suance of this Act 
 shall be deemed to be witliin the powers of this Act, and shall while it 
 is in force have effect as if it were enacted in this Act, and for all tlio 
 purposes of the holding of the winter assizes the counties united l)y tiio 
 Order shall, subject to the provisions of the Order, be deemed to be one 
 county, and the winter assizes held in and for such united county shall 
 be deemed also to be held in and for each of the constituent counties. 
 
 3. Her Majesty may from time to time by Order in Council revoke, 
 alter, or add to any Order made in pursuance of this Act. 
 
 Every Order in Council made in pursuance of this Act shall l)e jnib- 
 lished in the London Gazette and laid before both Houses of rarliamcnt 
 within one month after it is made, if rarliamcnt is then sittin>' and if 
 not, within one month after the then ncxT meeting of Parliament. 
 
 4. All enactments relating to the power of Her Majesty to niter the 
 cii'cuits of the judges, or places at which assizes are holden, or otliorwiso 
 relating to assizes and circuits, shall apply and may be put in force for 
 the pnrpose of cariying into eH'ect this Act or any Order made there- 
 under. 
 
 5. H shall be lawful for Her Majesty from time to time by Order in 
 Council to direct that, subject to any exceptions contained in the Order, 
 the jurisdiction of the justices and judges of tlie Central Criminal Court 
 at any session of oyer and terminer and gaol delivery lield for tlie Cen- 
 tral Criminal Court district in the months of November, l)occnil)cr, or 
 January shall extend to any neighboiuing coinity or part of a county 
 mentioned in the Order as if such county in- part of a comity were in- 
 cluded within the limits of the Central Criminal Court diHtrict, and to 
 apply, with such modifications and exceptions (if any) sus to Hor Majesty 
 may seem tit, the Central Crimiual Court Act to tho said county or 
 part of a county and oiVenccs committeil therein lus if the same wore a 
 county or part of a county mentioned in tiiat .\<-t. 
 
 An Order in Council jiurportiiig to be iiiatle in pursuance of this sec- 
 tion shall be deemed to be within the jjowers of this Act, and i-hall. whilo 
 it is in force, have effect as if it were enacted in this .\ct. 
 
 VOL. III. 
 
 70. j 
 
 P^jwer by 
 Order in 
 Council to 
 unite ouuiities 
 for puqiosf of 
 winter assizes. 
 
 rrovision .vi 
 t» Onler iii 
 Council. 
 
 .\|>|ilii-Alion of 
 i'\i.-.tin^ .\ol» 
 I1.S to ikltom- 
 tion of cir- 
 
 Cllitrt. 
 
 rrnvi.-iion for 
 iiii.;lil«<niring 
 
 ■••lUUllCH to 
 
 tViitral Critni- 
 ii.'il Court »li»- 
 tricU
 
 70(! Appendix of Statatca. 
 
 Dcliiuliun.s. ('). Ill lliis Act — 
 
 'J'lio oxpro-Kion 'winter assizes' means any court of assize or any 
 sessions of oyer aixl icrniiner or \i;,v)\ delivery held in the month of 
 November, the month of December, or the month <^f January. 
 
 The ex|)ression ' Central Criminal (Jourt district ' means the district 
 within the limits of (he Act 1 & .O Will. 4, e. 3G, intituled "An 
 Act for establishing a new court for the trial of offences com- 
 mitted in the mefroi-olis and parts adjoining;" and the expression 
 'Central Criminal Court Act' means the last-mentioned Act. 
 
 The expression 'county' in this Act shall include any county of a 
 city or county of a town, and any such division of any county as 
 is constituted by Order in Council under the Act 3 it 4 Will, 1, 
 c. 71, intituled "An Act for the appointment of convenient places 
 for the holding of Assizes in England and Wales.'' 
 
 39 ct to Vict. c. 80. 
 An Act to amend the Merchant Sldppivg Acts. 
 
 [loth Aujiid, 187G.] 
 
 Be it enacted by, etc., as follows : — 
 
 Short title. 
 
 Construction of 
 Act. 
 
 Commence- 
 ment of Act. 
 
 Prellminanj. 
 
 1. This Act may be cited as " The Merchant Shipping Act, 187G." 
 
 2. This Act shall be construed as one with "The Merchant Shijtping 
 Act, 18r)4," and the Acts amending the same ; and the said Acts and this 
 Act may be cited collectively as "The Merchant >Shipping Acts, 18-5-i to 
 187G." 
 
 3. Tliis Act shall come into operation on the first day of October, 187G 
 (which day is in this Act referred to as the commencement of this Act) ; 
 nevertheless, any Orders in Council and general rules xmder this Act 
 may be made at any time after the passing of this Act, but shall not 
 come into operation before the commencement of this Act. 
 
 Uns^ivorthy Ships. 
 
 Senriing unsea- 4. Every person who sends or attempts to send, or is party to sending 
 
 wor'.liy ship to or attcmjitiug to send a British ship to sea in such miseaworthy state 
 
 sea a misdc- ^\^^\^ ^j,e Jifg of any person is likely to be thereby endangered, shall be 
 
 meaner. guilty of a misdemeanor, nnless he proves that he used all reasonable 
 
 means to insure her being sent to sea in a seaworthy state, or that her 
 
 going to sea in such miseaworthy state was, under the circumstances, 
 
 reasonable and justifialile, and for the purpose of giving such proof he 
 
 may give evidence in the same manner as any other witness. 
 
 Every master of a British ship who knowingly takes the same to sea 
 in such unseaworthy state that the life of any pei-sou is likely to be 
 thereby endangered shall be guilty of a misdemeanor, unless he pi'oves 
 that her going to sea in such unseaworthy state was, imder the circum- 
 Btauces, reasonable and justifiable, and for the purpose of giving such 
 proof he may give evidence in the same manner as any other witness. 
 
 A pn-osecution under this section shall not be instituted except by or 
 with the consent of the Board of Trade, or of the governor of the 
 liritish pi^ssession in which such prosecuticni takes place. 
 
 A misdemeanor under this section shall not be puuishable upon sum- 
 maiy conviction. 
 Ohhgation of :^^ In every contract of service, express or implied, between the owner 
 
 shi^jowucr to
 
 39 ((j 40 Vict. c. 80. 707 
 
 of a ship find the master or any seaman thereof, and in every instrument crew with 
 
 of apprenticeship whereby any person is bound to serve as an apprentice r*-'si>ect to se- 
 
 on board any ship, there shall be implied, notwithstanding any agree- tj!-^"' ^^^*'"^'"' 
 
 ment to the contrary, an obligation on the owner of the ship, that the 
 
 owner of the ship, and the master, and every agent charged with the 
 
 loading of the ship, or the preparing thereof for sea, or the sending 
 
 thereof to sea, shall use all reasonable means to insure the seaworthiness 
 
 of the sliip for the voj'age at the time when the voyage commences, and 
 
 to keep her in a seaworthy condition for the voyage during the same : 
 
 Provided, that nothing in this section shall subject the owner of a ship 
 
 to any liability by reason of the ship being sent to sea in an unscaworthy 
 
 state where, owing to special circimistances, the so sending thereof to sea 
 
 is reasonable and justifiable. 
 
 40. For the pm-pose of punishment, jurisdiction, and legal proceedings, ]-'^-a" i>i.>r..'c.J- 
 au offence under this Act shall l)e deemed to be an offence under "The '"«»^ 
 Merchant Shipping Act, 1854." 
 
 Sec. 4-5 repeals as from the commencement of the Act (amongst other Repeal of Acta. 
 enactments) 17 ct 18 Vict., c. 104, s. 449 ; 34 & 35 Vict., c. 110 (Tlio 
 Merchant Sliipping Act, 1871), s. 11 ; 36 & 37 Vict, c. 85 (The Mer- 
 chant Shipping Act, 1873), ss. 11, 12, 13 and 14, and 38 it 3'J Vict., 
 c. 88 (The Merchant Shipping Act, 1875).
 
 INDEX 
 
 THE THREE VOLUMES. 
 
 A. 
 
 ABANDONING CHILDREN, i. 947 
 
 offence and punishment, ib. 
 ABATEMENT, 
 pleas in, i. 37 
 
 undue, of price of native commodities indictable, i. 3-30 
 ABDUCTION, i. 883.— See tit. Kidnapping. 
 
 forcible and fraudulent, of women, ib., et seq. 
 offence at common law, i. 883 
 by statute, ib. 
 for lucre, &c., i. 886 
 
 offender incapable of taking any property, i. 883 
 forcible abduction, i. 884 
 accessories, ib. 
 
 construction of 3 Hen. 7 (now repealed), ih. 
 county in which olfence is committed, i. 88."), et seq. 
 taking with intent to marry sutticient, i. 88*5 
 indictment, i. 'S^Q 
 
 evidence of woman carried away, i. 887 
 construction of the 9 Geo. 4, c. 31, s. 19, i. 886 
 there must be evidence of taking from motives of lucre, ih. 
 
 unlawful abduction of a girl under si.\tecu from lier i>aronts or 
 guardians, i. 888 
 knowledge of defendant that girl was under age, ib. 
 marriage of Royal family, i. 900 
 
 construction of 4 & o I'h. i M. c. 8 and 9 Geo. 4, c. 31 (now ro- 
 pealed), i. 892 
 forcible abduction and sending of i>ci-son.s into other countries, i. 901 
 masters of vessels forcing men on shore and leaving thoni, i. Wl 
 ABETTOltS, i. 150, et seq. — See tit. AiuKU-s .\-ni) AuKiruus. 
 ABORTION, 
 
 murder in attempt to ])rocure, i. 7G0 
 
 administering poison, kc, to cause miscarriage, «.tc., i. 853, et seif. 
 procuring drugs, itc, for that jjurpose, ib. 
 destroying infants in tlie mother's wonii), i. GOo, 8.')3 
 ABROAD, 
 
 conspiracy to murder any one abroad, i. 9<t0 
 murder or manslaughter abroail, where triable, ill, T-^'I 
 where death or wound abroad, i. 15, 790
 
 71 Jixh'X. 
 
 ACCI ITAXCI':, 
 
 of i( Ipill, lur-rry, ii. Sif) 
 ACCI:SS(>1;V.— Sco Inukx, Vol. T. 
 I'oiistiliclation Act, ii.s to, iii. G-18 
 ol tliL' fiict, i. 1'>G 
 bij'ore the /net, i. IGl 
 
 wlio is to l)C «o consi<lcrc(l, ih. 
 
 in iimnler, i. 1(!7. — Sec Mluhek. 
 
 iniiy be in manslaughter, i. 1G7 
 
 h(j\v and where to bo tried, i. 170, et seq. 
 indictment aj^'ainst accessory before conviction of principal, i. ISO 
 joinder of counts in indictment aganist accessories, i. 181 
 ofier the fad, 
 
 in murder, i. 780, et sc/., 799 
 
 in manslaughter, i. 1G7, 810, 841 
 jvoc€e(/iii[/s aijitlnst, indictment, itc, i. 174 
 
 principal and accessory in same indictment, ih. 
 
 accessory before may be charged as principal, ih. 
 or for a substantive felony, ih. 
 punishment of, i. 185 
 
 accessory after may be charged with a substantive ftlou}', i. 17G 
 
 punishment of, i. 81, 174, 17G, 185 
 
 l)rosccution of accessories, i. 177 
 
 several charged in one indictment, ib. 
 
 where trial may be, ib. 
 
 offences at sea, i. 179 
 
 indicted as accessory to several, found guilty as accessoiy to one, the 
 verdict good, i. 182 
 uo person shall be tried more than once for the same offence of 
 being accessory, i. 177 
 
 former acquittal, when a good bar, i. 182 
 
 he may be tried where principal has been convicted, though not at- 
 tainted, i. 177 
 
 he may controvert the guilt of the principal, i. 183, et seq. 
 
 in what county he shall be tried, i. 177 
 
 a confession by the principal no evidence against the accessory, i. 184 
 
 letters and statements of principal, ib. 
 
 in murder, i. 780, et seq. 
 
 hi manslaughter, i. 810, 841 
 
 in rape, i. SQo 
 
 in sodomy, i. 880 
 
 in abduction of women, i. 884 
 
 in every felony luider Offences against the Person Act, i. 178 
 
 in mayhem, none, i. 911 
 in offences respecting coin, i. 208 
 in cases oifelo de se', u 179 
 poisoning, ib. 
 in piracy, i. 2 GO 
 none in extortion, i. 39 G 
 all arc principals in a riot, i. 3G7 
 ACCKSSOIUES, 
 
 in burglary, ii. 51 
 
 in sacrilege, ii. 55 
 
 in housela-eaking, ii. 5i<, Gl 
 
 in stealing in a dwelling-house to the value of 5/., ii. G4 
 
 in breaking, kc, and stealing in buildings within the curtilage, ii. 70 
 
 in breaking, itc, shops, etc., and stealing therein, ii. 74 
 
 in robbery, ii. 82, 117
 
 Index. 7] \ 
 
 ACCESSORIES— co???/jH?c(^. 
 in larceny, ii. 284 
 in stealing from the person, ii. 285 
 in stealing horses, cows, sheei^, kc, ii. 287 
 in stealing and destroying deer, &c., ii. 300 
 in taking, &c., fish, ii. 3U5 
 in plundering shipwrecked vessels, ii. 308 
 in larceny by servants, &c., ii. 329 
 in embezzlement, ii. 342 
 in forgery, ii. G89, 738 
 in malicious injuries, ii. 895 
 in sending threatening letters, iii. 23G 
 ACCOMPLICES, 
 
 include all the participes criminis, i. 15G 
 
 dying declaration of, iii. 3-59 
 
 evidence against a prisoner, iii. 600 
 
 approvement, ib. 
 
 mode of admitting to give evidence, ib. 
 
 principal a witness against accessory, iii. GOO 
 
 accomplice's evidence alone sufficient in point of law, iii. G03 
 
 but in practice corroboration always deemed essential, ib. 
 
 cori'oboration should be such as goes to fix the identity of the party 
 
 charged, iii. G04, et seq. 
 and to fix each prisoner, ib. 
 
 confirmation by wife of accomplice insufficient, iii. G08 
 confirmation as to principal none as to receiver, and vice versa, ib. 
 ■where there are several accomplices, iii. G09 
 where confirmation is not recpiired, ib. 
 in cases of misdemeanor, iii. GIO 
 where accomplice has been summarily convicted, ib. 
 the jury may convict some and ac(piit others on the same accomplice's 
 
 evidence, ib. 
 accom[)lice evidence for prisoner, ib. 
 ACCOUNTABLE RECEIPTS, 
 
 forging, ii. 819 
 ACCOUNTANT-GENEPtAL, 
 
 forging signature of, ii. 805 
 ACCOUNTS, 
 
 falsification of, ii. 883 
 clerk falsifying ])Ooks, ii. 884 
 ACCUSING OF CRIMES.— See TimKATs A\n Tnm-ATF.NMXG Lkttkus. 
 with intent to extort property, ii. SO ; iii. 2;ll, it sty. 
 letter accusing, ib. 
 ACKNOWLEDGING, 
 
 recognizance, bail, cognovit, itc, without authority, ii. 890 
 ACQUITTANCE 
 
 for money, forging, ii. 8)9 
 
 cxchei|uer st'-aling, ii. 223 
 AD (J COD JJAMXUM, 
 
 writ of, virtually abolished, i. L"i7 
 rej>airs of a road made in piirsuanco ui". i. ISS 
 ADMINISTERING 
 
 poison, itc, with intent to murder, i. 911 
 
 so as to endanger life, itc, i. 91-) 
 
 witli intent to injure, «tc., ib. 
 
 with intent to procure abortion, i. S"i3 
 
 chloroform, kc, with intent to commit olVenccs, i. 917 
 
 attempting to administer poLson, itc, i. 913
 
 712 Index. 
 
 AL)MINISTKIIIN(J— *v,////«^/.',/. 
 
 uilmiuisti'iin;^ riiiit.hiiridcH, i. 2G'J 
 AI>MIMSTI!ATI()N, 
 
 [ii-ciof of, iii. I IS 
 AI)MII!AI/rV. 
 
 statute cdiisolidiitiug certiiin cnautmcuts as to, iii. 078 
 
 jurisdiction (jI", i. 11, d siy. — Sue tit. Vknik, Ska, Okkknx'KS at. 
 
 otloncos coiiiiiiittc'd on the sea, i. 10, Ki, IS ; iii. 041 
 
 Admiralty Powers Act, 1SG."J, frauds under, ii. 01-5 
 
 uttering false petitions, &c., ii. 7U8 
 
 forging signature or seal, ii. 747 
 
 oifeuces against Larceny Act, witliin jurisdiction of, ii. 273 
 Forgery Act, within jmisdiction of, ii. 738 
 Malicious Injuries Act, within jurisdiction of, ii. S'J-j 
 ADMISSION. — See tit. Confession. 
 ADULTERER, 
 
 taking goods by the delivery of adulteress, i. 148, et set/. 
 
 ■|irovocatiou to kill, by detection of, i. G87 
 AFFIDAVIT, 
 
 forging, ii. 74G 
 AFFRAY.— See Index, Vol. I. 
 
 definition of, i. 3'JO 
 
 notice of authority to aiTCst by officer, &c., interposing, i. 723 
 
 killing in, i. 8-52 
 AGAINST THE FORM OF THE STATUTE, 
 
 allegation, in indictment, i. 3.3 
 AGENT, 
 
 in whom ownership of goods may be laid, ii. 253 
 
 embezzhng money, &c. intrusted to him with a written direction, ii. 390 
 
 or goods, itc, power of attorney to transfer stock, &c. intrusted to him for 
 safe custody, ii. 391 
 
 obtaining advances ou the property of his principal without authoritv, ii. 
 393 
 
 innocent, offences committed by means of, i. IGO, IGl 
 AIDERS AND ABETTORS.— See tit. Principal in Second Degree. 
 
 abettors in misdemeanors, i. 178 
 
 principals in the second degree, i. 156 
 
 formerly considered accessories at the foct, ib. 
 and not triable till principal convicted, ib. 
 
 how far they must be pi-esent at the commission, ib. 
 
 what shall constitute such presence, i. 157, et seq. 
 
 of a crime done in prosecution of some iinlau'ful pui'pose by several, i. 162 
 where there is a general resolution against all opposei-s, i. 1G3 
 
 indictment against, i. 1G4 
 AIRWAY OF MINE, 
 
 obstructing, ii. 945 
 ALEHOUSE, 
 
 authority of constable in, i. 727, et srq. 
 
 keeping, without a license, why not indictable, i. 194 
 
 disorderlv, i. 426 
 ALE LICENSES, 
 
 grant inir, and refusing improperly, i. 298 
 ALTERING^ DOCUM ENTS, 
 
 etpiivalent to forging, ii. 619 
 AMBASSADORS, 
 
 arrest of. i. 960 
 AMENDMENTS.— See Index, V.d. I. 
 
 at trial, i. 02
 
 Index. 713 
 
 ANCHORS, 
 
 left or cut from ships, ii. 307, 508 
 ANIMALS, DOxMES'riC, 
 larceny of, ii. 233 
 killing, maiming, itc, ii. 927 
 APPREHENSION.— See tit. Arrest. 
 
 without a warrant, of persons suspected of felony, by night, ii. 52 
 
 of persons found committing olfcnces against the Larceny Act, ib., iii. G57 
 
 Malicious Injuries Act, ii. 895 
 of persons offering to sell, itc, property suspected to have been stolen, iii. 
 
 657 
 abroad, costs of, i. 95 
 APPRENTICE, 
 
 causing bodily harm to, etc., i. 947 
 neglect of, who indictable for, i. 949 
 neglect by master to provide food for, iii. IG2 
 murder by harsh usage, i. 05 2 
 
 correction of, by master, in foro doviestico, i. 773, et seq. 
 costs in case of ill-treatment of, i. 89 
 enlisting and receiving bounty money, ii. 515, GIG 
 APPROVEMENT, 
 
 method of, iii. 600 
 ARMS, 
 
 affray by going armed, i. 391 
 
 prohibition by 2 Edw. 3, from going armed, i. 391 
 
 construction of this statute, i. 392 
 loaded arms, what, i. 914 
 ARRAIGNMENT, 
 
 of idiots, deaf aud dumb persons, (fee, i. 113, and note (»). 
 ARREST. — See Lndex, Vol. I. ; aud see id. tit. Process. 
 ARREST OF JUDGMENT, 
 
 what objections to indictments cannot be moved, i. 35 
 all defendants must be in court, iii, 159, 319 
 ARSON.— See Index, Vol. II. 
 
 offence at common law, ii. 898 
 present enactments, ii. 900 
 
 setting fire to any church or chapel, ib. 
 
 a dwelling-house, any person being therein, ib. 
 any house, outhouse, maiui factory, farm building, itc ,ii. 901 
 railway station, or building belonging to any duck, 
 
 canal, etc., ib. 
 public building, ii, 902 
 other building, ib. 
 goods in any building, ii. 903 
 attempting to set fire to building.s, ii. 904 
 destroying or damaging buildings with powder, ib. 
 attempting to do so, ib. 
 malice to the owner not necessary, ii. 906 
 12 Geo. 3, c. 24, s. 1, setting fire to ships of war, kc, ii. 905 
 articles of the navy, burning any ship.s, etc., ii. 906 
 cases on the statutes now repealed, ib., c( soi. 
 the indictment, ii. 918, el seq. 
 evidence, ii. 923, ct scq. 
 ART, 
 
 works of, damaging, itc, ii. 965 
 ASSAULT.— See Index, Vol. I.; and see ib., tit.s. Indkci NT A.S8ault, ^Ialming. 
 common assaidt, 
 
 definition of an assuull, i. 95o
 
 714 Jixh'x. 
 
 KS^KV\JV—co„ti,nir,l. 
 
 act (lone with consent not fin assault, i. OGO 
 
 hut if" rosi.stanco is prevented hy fiaiifl, it is, il>. 
 
 injiu'y acci<l('ntal or mulcsif^ned, i. !)()2 
 
 servant (lel'en(lin<( master, and vici' virsd, i. \)(V.\ 
 
 Hon asMiull <lnncs)te, a ^^'ood defence, ib, 
 
 excess of violenco, i. 90 4, 'JOG 
 
 indictment, i. DGG 
 
 defence, i. !<G7 
 
 verdict and punishment, ih. 
 
 costs, i. «S9, !)(), 9G8 
 
 summary conviction before two mngistratos of common assatilt, i. 
 
 'JGcS 
 aggravated assault on females and boys, ih. 
 
 certificate of dismissal of complaint, i. 9G0 
 certificate or conviction a bar, ih. 
 provision not to ap])ly to certain cases, i. 970 
 aggravated assaults, 
 
 attempts to murder, or to do great bodily harm, i. 971 
 with intent to ravish, i. 870 
 
 to commit an mmatnral crime, i. 879 
 upon officers executing process, i. 5.58, et seq. 
 in cfiecting a rescue, i. 390, 559, 582, et seq., 971 
 in obstructing revenue officers, i. 274, et seq., 971 
 in hindering the cxi)ortatiou or circulation of com, i. 281, et seq., 
 
 971 
 laying violent liands in a church or churchyard, i. 971 
 striking, or drawing a weapon in a church or churchyard, ih. 
 malicious striking or shedding blood in the King's palaces, ih. 
 drawing a weapon or striking in the King's courts of justice, ih. 
 
 noli proseqxd as to jiidgment of amputation, i. 972 
 rescuing a person from courts without striking, i. 973 
 assaults in inferior courts of justice, ib. 
 indictment, ib. 
 
 n'ith intent to commit robhenj, ib. 
 assaulting commanders of vessels, ih. 
 assaulting a clergyman during divine service, i. 401, 973 
 assaults on officers, ic, for their endeavours to save shipwrecked 
 
 vessels, i. 974 
 assault with intent to commit felony ; assaults upon peace officei*s ; 
 
 or to prevent arrest of offenders, ib. 
 assaults with intent to obstruct the baying and selling of grain, or 
 
 its free passage, ih. 
 assaults on peace officers, i. 974, et seq. — See Constable. 
 assault on seaman to prevent his working, i. 975 
 on collectors of taxes, i. 980 
 
 unlawful arrest, i. 982 
 
 revenue officers, ih. 
 
 officei-s of Peutouville and Millbank Penitentiary, i. 984 
 
 poor law officers, ih. 
 
 persons arresting oflcnders by night, ib. 
 
 special constables, i. 975 
 
 rural police, ib. 
 
 parish constables, i. 97G 
 
 town police, ib. 
 
 county and liorough police, ib. 
 
 persons loitering at night, i. 985 
 
 punishment under rrevcution of Crimes Act, ih.
 
 Index. 715 
 
 k^'^kVl^T— continued. 
 
 ivith intent to commit rohhery, ii. 114 
 
 construction of the former statutes, ii. 112 
 
 an assault and threat to charge wiLli an infamous crime is an assault 
 with intent to rob, ib. 
 
 the assault must be made on the party intended to bo robbed, 
 
 ii. lU 
 no actual demand of money, etc., necessary, ii. 115 
 the intent to rob the material part, and must be properly 
 alleged, ii. 116 
 conviction of on indictment for robbery, ib. 
 ASSAY MARK 
 
 on gold or silver, forging, &c., ii. 775 
 ASSEMBLY, 
 
 nnlawful, i. 364, ct seq. — See tit. Uxlawfcl Assembly. 
 ASSIZES, 
 
 statute as to winter assizes, iii. 704 
 clerk of assize, statute as to, iii. 679 
 ATHEISTS, 
 
 competency of, as witnesses, iii. 27, 613 
 ATTAINDER 
 
 of another crime not pleadable, iii. 637 
 ATTEMPTS, 
 
 to commit crimes or misdemeanors, wlicn indictable, i. 188, et seq. 
 endeavouring to provoke another to send a challenge, i. 3U6 
 inciting persons to assemble in a riotous manner, i. 367 
 to commit a rape, i. 869 
 
 to commit murder, i. 910, et seq. — See tit. Maimi.xg. 
 maliciously shooting at persons, i. 913, p/.vy. 
 attempts to murder by shooting or wounding, i. 913 
 by destroying buildings, i. 912 
 by setting fire to ships, ib. 
 by any other means, i. 9 1 3 
 
 to maim, disfigure, ifcc, i. 914 
 to choke, with intent to commit an offence, i. 946 
 giving chloroform, with like intent, i. 947 
 a person caught in the night in an attempt to commit a felony may Ik* 
 
 detained without a warrant, i. 933 
 conviction of an attempt on an indictment for a felony or misdemeanor, 
 
 i. 62 
 to take or destroy fisli, ii. 303 
 to set fire to buildings, ii. 904, 924 
 to destroy buildings with gunpowder, ii. 904 
 to set fire to cro[)8, stacks, S:c., ii. 932 
 to set fire to mines, ii. 945 
 ships, ii. 958 
 by servant to commit larceny, ii. 330 
 
 to set fire to a house, inciter tiiougli al>-<eii( ni:iv Itc convicted, 
 ii. 925 
 ATTESTING WITNESS, 
 
 when, need not now be called, iii. 434 
 ATTORNEY, 
 
 acting as, when un(pialifietl, i. 193 
 
 embezzling money or securities intrusted lo him with a written direction, 
 
 ii. 3!)0 
 goods, etc., or power of attorney intrusteil to him for safe custody, ii. 
 
 391 
 fraudulently selling property intrusted to him for safe custody, ib.
 
 71 n IikIcx. 
 
 autiu<:kots acquit, 
 
 pleii of. — See tit. I'lk.vs. 
 in Imrjxlary, ii. -IH 
 in furgury, ii. 700 
 
 B. 
 BAIL, 
 
 of accused persons, iii. 500, et »cq.^ 511 
 acknowledging in name of another nut privj', ii. 800 
 personating, iU. 
 BAILKK, 
 
 converting property guilty of larceny, ii. I.'')! 
 may ho convicted on indictment for larceny, ii. IH-l, I.'jG 
 evidence of conversion hy, ii. 112 
 
 special property of, so as to 1)0 laid as owner in indictment, ii. l'Io 
 BAKER, 
 
 iuilictment for mixing alum with Qour, i. 10-5 ; note {n), 2G8 
 answeral ilc for acts of servants, ih. 
 BALLOT ACT, i. 330 
 BANK, 
 
 deposit in, stealing securities for, ii. 223 
 BANK OF ENGLAND AND IRELAND, 
 
 embezzlement by officers and servants of, ii. 401 
 
 making false entries in books of, ii. 740 
 
 forging transfers, cfec, of stock at, ii. 748, et seq. 
 
 forging securities of, ii. 758, et seq. — Sec tit. Fokgery. 
 
 personating owner of stock, ii.- 748 
 
 forging attestation of power of attorney to transfer stock, ii. 748, 755 
 
 clerks making out false dividend warrants, ii. 750 
 
 forging the notes or bills of, ii. 758 
 
 purcliasing or receiving forged bank notes, ih. 
 
 making paper with ' Bank of England ' or ' Bank of Ireland ' or waving 
 
 bar lines, &.C., in it, ii. 750 
 engraving, kc, plates for making uotes of the Banks of England or Ireland, 
 
 or having such plates, ifec, ii. 7 GO 
 search for such notes or instruments for forging them, ii. 730 
 BANK NOTES, 
 
 description of, i. 24 
 
 are valuable securities, ii. 223 
 
 counti'y notes, paid in London, larceny of, ii. 224, et seq. 
 
 how stated in indictment, ii. 2G3, 2GG 
 
 forgery, etc., of the uotes of the Banks of England and Ireland or other 
 
 l)anks, ii. 758 
 purchasing:, etc., forged notes, ib. 
 BANK rOST^BlLL, 
 larceny of, ii. 2G6 
 
 how stated in an indictment, ii. 2G6, 695 
 forging, ii. 758 
 BANKER, 
 
 cheque on, larceny of, ii. 222 
 
 where the drawer had no effects or authority, ii. 551 
 embezzlement by, of money or securities intrusted to him with a written 
 
 direction, ii. 300 
 of goods, tkc, or power of attorney intrusted to him for safe custody 
 
 ii. 301 
 fraudulently selling property intrusted to him for safe custodv, /'*. 
 B.VNKINO BOOKS, 
 
 when evidence, iii. 438 
 copies of entries in same, ih.
 
 Index. 7 1 7 
 
 BANKING BOOK^— continued. 
 
 proof as to status of bank, iii. 439 
 
 statute as to, iii. 703 
 
 inspection of, iii. 704 
 
 bank in certain cases not compellable to produce, lb. 
 BANKRUPT.— See Index, Vol. II. 
 
 embezzlements and frauds by, ii. 440 
 
 compulsory examination of when evidence, iii. 478 
 
 examination of, admissible against him, iii. 113, el se^i. 
 
 costs, i. 91 
 BANNS, 
 
 marriage by, iii. 273, et seq. 
 BAPTISM, 
 
 register of, forging entries in, ii. 80 G 
 BARGE, 
 
 stealing from, in river, canal, &c., ii. 307 
 BARN, 
 
 setting fire to, ii. 901 
 BARON AND FEME.— See tit. Feme Covert. 
 BARRATRY, 
 
 definition of, i. 3G2 
 
 by whom it may be committed, ib. 
 
 indictment and proceedings, ib. 
 
 trial, i. 363 
 
 pnnishment, ib. 
 BASTAPtD, 
 
 bringing into a parish not indictable, i. 10.") ; and see note (c) 
 
 indictment for secreting a woman with child, ib. note (6) 
 
 murder of, i. 646 
 
 concealment of birth of, i. 801 
 
 verdict on trial for murder of, ib. et seq. 
 
 conspiracy to charge as father of, iii. 119 
 BATHING, 
 
 ■when indictable, i. 436 
 BATTERY, 
 
 definition of, i. 957 
 
 every imprisonment does not include, i. 961 
 
 if one be indicted for assault and battery, and the assault be ill laid, ho 
 may be convicted of the battery, i. 967 
 BAWDY-HOUSE, 
 
 indictment of, as a nuisance, i. 130, et seq. 
 
 proceedings on indictment, evidence, etc., i. 432, el scq. 
 BEAST, 
 
 stealing horses and other cattle, ii. 287 
 
 the subject of larceny, killing with intent to steal, ib. 
 
 ordinarily kept in confinement, or for any domestic purpn.so, iVc stoaliii"' 
 ii. 29.3 "' 
 
 possession of, ii. 2!)(i 
 
 killing witii intent to steal, ih. 
 
 maliciously killing, itc. cattle, ii. 927 
 
 any beast not being cattle, but being cither the subject of larceny, ur 
 ordinarily kept in confineiucnt, ur fur some domestic puri»ose, ib. 
 BEGGARS, 
 
 fraud by maiming in order to beg, i. 911 ; ii, ."ii.; 
 BIGAMY, 
 
 its proper signification, iii. 264 
 
 originally of ecclesiastical cognizance oidy, ib. 
 
 a felony by the 24 «S: 2j Vict. c. lOU, s. 07, ib.
 
 718 hulrx. 
 
 MlV.X^sW—ronl'nnird. 
 
 uxuoptiijii wlicro second marriiifjo contractcil out of Kiiglninl l»y any otlicr 
 thiui a liritisli Hubjoct, iii. 2()rj 
 oxcoiition wlicro liiiHl)aii<l or wife hIihII 1»c iihscnt sovoii years, au<l 
 
 not known to have bepn liviii;^, ih. 
 cxccjition as to ])er,s<)ns divoreeil, iii. 200 
 
 jierHon.s wiiosc former marriage has been dcdarcil void, iii. 207 
 of tlio two niarriaj^cs, iii. 207 
 
 jirincipals in second degree and accessories, iii. 208 
 trial, 20!> 
 
 of the first marriage, ih. 
 Marriage Acts, iii. 272 
 
 banns, iii. 273, 278, 287 
 
 marriage of minors, iii. 27 f, 270, 277 
 
 license for marriage, iii. 270, 277, 278 
 
 marriage in church or chapel, iii. 277 
 
 marriage of Quakers and Jews, iii. 279, 288, 293, 312 
 
 marriage on production of registrar's certificate, iii. 278, 29)2 
 
 G it 7 Will. 4, c. 8."), iii. 278 
 
 registration of places of worship for solemnizing marriages, iii. 281 
 
 marriage in presence of registrar, ih. 
 
 licensin;;: chapels for solemnization of marriage, iii. 28-5 
 
 marriages void if laiduly solemnized with knowledge of both 
 
 parties, iii. 280 
 provision for marriages in Welsh tongue, iii. 287 
 banns may be published in chapels where marriages may be 
 
 solemnized, ih. 
 Roman Catholic chapels, ih. 
 uo notice of marriage to be published before poor law guardians, 
 
 iii. 288 
 as to notices of marriage under G & 7 Will. 4, c. 85, kc, iii. 288, 
 
 et seq. 
 form of license granted by superintendent registrar, iii. 291 
 mode of solemnizing marriage in registered building, ih. 
 proof of observance of & 7 Will. 4, c. 8-5, itc. in certain matters 
 
 not necessary, iii. 293 
 marriages in extra parochial places, iii. 294 
 cases decided upon ^larriage Acts, ih. 
 
 where marriage in an assumed name, ih. 
 banns in wrong name, iii. 295 
 
 assuming a fictitious name on second marriage, iii. 296 
 marriage by license in wrong name, iii. 298 
 evidence of marriage by special license, ih. 
 
 marriage by a minor without consent since 4 Geo. 4, c. 76, iii. 299 
 clergymen must be present at marriage by the common law, ib. 
 clergyman cannot marry himself, iii. 300 
 
 under it 7 Will. 4, what necessary to prove in support of mar- 
 riage, ih. 
 marriages in churches erected since 20 Geo. 2, c. 33, evidence of 
 
 banns before that Act, iii. 303 
 marriages in district churches, ih. 
 
 certain chapels and buildings held valid, iii. 304 
 Scotland, iii. 30."j 
 St. Domingo, iii. 300 
 Ireland, ih. 
 of Protestants by Ivoman Catholic priest, iii. 310 
 in ambassador's chapel, dec, or in the army abroad, ib. 
 mai-riages before British consuls, iii. 3 1 1
 
 Index. 719 
 
 BlGikliY—continufid. 
 
 marriages hi Mexico, Moscow, and other places, iii. 312 
 in India, ih. 
 in Newfoundland, ih. 
 proof of marriage in France, iii. 313 
 mai'riages of lunatics, ih. 
 
 marriages by reputation when not sufficient, ib. 
 evidence of marriage, iii. 314 
 prisoner's acknowledgment of marriage, ib. 
 true wife cannot be a witness, iii. 31G 
 indictment, iii. 317 
 BILL OF EXCEPTIONS, iii. 318 
 BILL OF EXCHANGE, 
 
 forging, ii. 819 
 stealing, ii. 223 
 may be laid as a warrant for tlie payment of money, ii. 8-Jl 
 causing to be executed by force, ii. 81 
 by fraud, ii. 525 
 BILL OF LADING, 
 
 stealing, etc., ii. 223 
 BIRD, 
 
 ordinarily \\.Gi)t in confinement or for some domestic purpose, stealing, ii. 295 
 killing with intent to steal, ib. 
 possession of, ii, 29G 
 maliciously killing, maiming, itc, ii. 927 
 BIRTH, 
 
 register of, proof of, iii. 42G 
 register of, foi-ging, ii. 80G 
 Births and Deaths Registration Act, ii. 808 
 concealment of, i. SUl, et seq. 
 BISHOP'S COURT, 
 
 extortion in, i. 304 
 BLASPHExMY, 
 
 still indictable at common law, i. 194 ; iii. 193 
 punishment for, iii. 225 
 BOAT, 
 
 stealing from in port, river, etc., ii. 307 
 BODILY IMJURY, 
 
 causing with intent to murder, i. 911 
 attempting to cause with like intent, i. 913 
 with intent to maim, &c., i. 911 
 to prevent apprehension, ih. 
 inflicting with or withuut a wca[)on, ih. 
 exi»loding gunpowder with intent to cause, i. 953 
 placing gunpowder near buildings, itc. with like intent, i. 951 
 setting s])ring guns with like intent, i. 987 
 drivers of carriages causing, i. 98G 
 causinsj:, to apprentices or servants, i. 917 
 BODY COilPORATF, 
 
 liow described, ii. 258 
 BOND, 
 
 a valuable security, ii. 223 
 stealing, ib. 
 forging, ii. 819 
 BOOKS, 
 
 public, how ]iroved, iii. 42G 
 BOROUGH FUND, 
 costs out of, i. 99
 
 720 Judex. 
 
 liOUNDAUFKS, 
 
 of cnuntic'H, (»nbnc08 coniniitled nrar. — Sec Inuktaiji.k Vknuk. 
 BOXING MATCH, 
 <lc!ith l.y, li^\0 
 BRASS, 
 
 stealing from Imililiiigs, ii. L'lO 
 BUKAI), 
 
 putting unwholcHomc ingredients in, by a l);iker, indictal)!-', i. 195, 208 
 by servant with master's knowledge, master indictable, i. Ii08 
 BRIBKllY.— See Index, Vol. I. 
 in what it may consist, i. .'518 
 
 in elections for iHcml)ers of parliament, i. 3 it), ci sc/. 
 at nnmicipal elections, i. 331, 333 
 Ballot Act, i. 330 
 tani]tering with jurors, i. 318 
 BUIDGKS.— Sec Index, Vol. I. 
 of public bridges, i. 530 
 of private bridges, i. 531 
 dedication of a bridge to the public, i. 533 
 a bridge may be indictable as a nuisance, ib. 
 of nuisances to by obstructions, i. 533 
 of nuisances by not rc})airing them, ih., et scq. 
 
 liability of the county and others to repair, i. 534, et srq. 
 power of justices to order bridges to be widened, etc., or rebuilt, ih. 
 composition as to repair between county and parish, where the latter is 
 
 liable to repair, under 3 Geo. i, c. i. 12G, 541 
 one bridge within three hundred feet of another in another county, i. 547, 
 
 548 
 party liable to repair a bridge is primd facie liable to repair the approaches, 
 i. 547 
 
 county not bound to widen, ib. 
 procuring monies for repairs of bridges, and of coutrilnitions, i. 549 
 justices may contract for repairs, &c., ib. 
 
 information, presentment, or indictment, for not repairing, i. 550, et seq. 
 pleadings, special plea, etc., ib., et seq. 
 trial, county, &c. i. 555 
 evidence, ib. 
 the judgment, i. 556 
 costs for a frivolous defence, ib. 
 certiorari to remove presentments or indictments, ib. 
 
 riotously destroying bridges, (tc. belonging to collieries, mines, 
 
 &c.,i 368 
 destroying, whether over a stream or not, ii. 042 
 for conveying minerals from mines, ii. 946 
 BROKER, 
 
 embezzlement by, of money or securities intrusted to him with a written 
 direction, ii. 390 
 
 of goods, (tc, or power of attorney intrusted to him for safe custody, ib. 
 fraudulently selling property intrusted to him for safe custody, ii. 391 
 BUILDING, 
 
 destroying with intent to murder, i. 912 
 riotously demolishing, i. 368 
 blowing up with gunpowder, i. 954 
 setting tire to, ii. '.'Oil, et sty. 
 destroying, itc. with gunpowder, ii. 904 
 injuries to by tenants, ii. 926 
 BUILDING SOC I ETI ES ACTS, 
 
 pi-oof of certi6cates and rulc^, iii. 412
 
 Index. 72 1 
 
 BUILDING WITHIN THE CURTILAGE, 
 
 ■what is, ii. 70, et seq. 
 breaking into and committinLi: any felony in, ii. ib. 
 committing any felony in, and breaking out of, ib. 
 BULL, 
 
 stealing or killing with intent to steal, ii. 2S7 
 maliciou.sly killing, ifcc., ii. 927 
 BULL-BAITING, 
 
 assemblies for, not riotous, i. 365 
 BULLION, 
 
 frauds relating to, i. 217, et seq. 
 
 making gold and silver under the true alloy, il. 
 
 fraudulently affixing marks, indictable at common law, ib. 
 frauds in the exportation of bullion, ib. 
 BUOY, 
 
 removing, destroying, or concealing, ii, 959 
 BURGLARY.- See Index, Vol. IL 
 definition of the offence, ii. I 
 breaking and entering, ii. 2 
 
 tJie breaJcing. — Of an actual breaking, ii, 2, 3 
 
 constructive breaking, ii. 7 
 the entering, ii. 10 
 of the mansion-house, ii. 14, et seq. 
 
 what shall be considered, ib. — See tit. Dwelling-House. 
 not buildings within the curtilage, ii. 15 
 part of a house severed from the rest, ib. 
 of the inhabitancy;, ii. 20, et seq, 
 of the otvnership, ii. 24, et seq. 
 
 owner of house breaking open apartments of his lodgers, ii. 30 
 of the time, viz., the night, when the offence must be committed, ib. 
 of the intent to commit a felony, ii. 38 
 indictment, trial, d'c, ii. 43, et seq. 
 
 of joining burglary, larceny, and felony, ii. 51 
 of the 2^lea of autrefois acquit, ii. 48 
 e^ndence, ib. 
 Hie verdict, ii. 49 
 when several are indicted for burglary and lai'ceny, the offence of some may 
 
 be burglary, of the others only larceny, ib. 
 punishment, ii. 50, 51 
 
 entering house by night with intciit to commit a felony, ib. 
 l)rincipaLs in second degi'ce and accessories, ib. 
 BURIAL, 
 
 obstructing burial service, i. 101 
 omitting and refusing to bury, i. 013 
 right to, i. 014 
 preventing, i. 019 
 register of, proof of, iii. 42G, 089 
 register of, foi-ging, &c., ii. 800 
 BURNING, ii. 890\— See lit. Aitsox. 
 BUYING AND SELLING, 
 
 piiblic offices, i. 309. — Sec tit. OrnCES. 
 pretended titles, i. 359 
 
 C. 
 
 CADETSHir, 
 
 in India, i. 310 
 CANAL, 
 
 stealing from vessels on, ii. ."107 
 
 VOL. lU. "> A
 
 722 ludiX. 
 
 CAN A \i — condnxnl. 
 
 l)riMikin>,' down bank, dam, kc, ii. 910 
 rcniovin;,' piles, «tc. to Hociiro l)ank, ih. 
 oponiML,' ll()()di,'ato, itc. or d(;ing other injury to, ih. 
 set till!,' liro to l)uiUling lieltjnging to, ii. 001 
 CAl'AI'.ILITY, 
 
 of coiiiiiiitting crimos, i. 108 
 general rule, ih. 
 want or defect of will, ih. 
 
 1. Infants, ih. 
 
 conuiiitting misdemeanors, ih. 
 cajjital crimes, i. 101), et seq. 
 murder, ih., et scq. 
 rape, i. 110 
 new statutory felonies, i. 112 
 treasons, ih. 
 execution of, respited, itc. for their want of discretion, i. 113 
 
 2. Non compotes, i. 113, et seq. 
 
 Idiots, ih. 
 
 •what constitutes, ih. 
 
 deaf and dumb, ih., and see note (?/i) 
 from sickness, i. 1 1 1 
 lunatics, ih. 
 persons drunk, ih. 
 
 voluntary and involuntary drunkenness, ib. 
 affecting question of intent, i. 115 
 distinction between idiocy and lunacy, i. IIG 
 in what cases defect of sense, &c. shall excuse, ih., et seq. 
 opinions of the Judges in M'Naghte's case, i. 121 
 cases subsequently, i. 123, et scq. 
 examination of medical man, i, 133 
 insanity in the f;imily, i. 134 
 rule derived from cases, ih. 
 lunatic offendei's, proceedings with respect to, i. 135 
 disposal of persons acquitted on ground of insanity, i. 13G 
 insane persons charged with misdemeanors, i. 137 
 the jury may judge from demeanor of the party, i. 138 
 
 facts necessary to constitute the crime must be proved 
 
 in order to bring a case within the Act, ib. 
 grand jury are bound to find the bill, ib. 
 persons found insane on arraignment or tiial, i. 137 
 discharged for want of prosecution, ib. 
 3. Persons subject to the power of others, i. 139 
 feme covert, ib. 
 
 not answerable for her husband's breax;b of duty, i. 144 
 indictment against husband and wife as such, i, 141 
 when responsible, i. 139, et seq. 
 coercion of husband when pi-esumed, i, 139 
 
 not pi-esumed when not present, 
 i. 14G 
 receiving stolen goods wuth her husband, i. 141, et seq. 
 
 in some cases she is responsible, i. 145, et seq. 
 husband accessory before, i. 14G 
 presumption may be rebutted, i. 147 
 not guilty of felony in stealing her husband's goods, 
 
 i. 148 
 when a stranger can commit larceny of husband's goods 
 1 <y delivery of wife, ib. et i>eq.
 
 Index. 723 
 
 CAPABILITY— continued. 
 
 cases of adulteiy, i. 148, et seq 
 not accessory for receiving her husband, i. 153 
 indictment against husband and wife, ib. 
 evidence of being the wife, ib. 
 4. Persons committing crimes through ignorance, i. 154 
 ignorance of law no excuse, ib. 
 CAPITAL, 
 
 what felonies are, iii. G37 
 CAPTION, 
 
 to depositions, iii. 518, 519 
 CARNAL KNOWLEDGE, 
 
 what is sufficient, i. 8G4 
 CARNALLY KNOWING, 
 gui under twelve, i. 872 
 
 between twelve and thirteen, ib. 
 attemyjt to commit these ofifences, ib. 
 CARRIAGES, 
 
 forging licenses for, ii. 817 
 CARRIERS, 
 
 larceny by, ii. 134, et seq. 
 
 special property of, to support c»wnership in indictment, ii. 245 
 false pretence hj, to obtain money for carriage, ii. 531 
 CASE RESERVED, 
 
 by court on trial, iii. 318 
 CAT, 
 
 stealing, ii. 238 
 
 maliciously wounding, &c., ii. 927 
 CATTLE, 
 
 stealing, ii. 287 
 
 how described in indictment, ii. 290, ct seq. 
 slaughtering, ii. 293 
 destroying or burying hides, ib. 
 maiming and killing, ii. 927 
 
 no indictment at common law for maiming a hoi-sc, ih. 
 
 new statute, ib. 
 
 cases on, ii. 928 
 
 fis to the meaning of the word ' cattle ' in the 9 Geo. 1, c. 22, ih. 
 
 horses, pigs, asses, ii. 929 
 
 as to the degree of maiming, ih. 
 
 pouring acid into the eye of a marc and blinding her, ib. 
 
 wounds inflicted by a dog, ii. 930 
 
 burning a building with a cow in it, ih. 
 
 malice against the owner not necessaiy, ih. 
 
 indictment and evidence, ib. 
 
 other acts of administering poison admissible to sliuw tlie intent, 
 
 ii. 931 
 principals and accessories, ih. 
 CENTRAL CRIMINAL COURT, 
 
 costs at, i. 91 
 CERTIFICATE 
 
 of dismissal of assault, i. 969 
 CERTIORAHI, 
 
 costs of removal by, i. 95, 96 
 
 to remove indictments fur nuisances to highways, i. 503 
 
 costs after removal, i. 508 
 
 for nuisances to bridges, i. 55G 
 
 3 A -1
 
 724 Index. 
 
 (;ii,\i,m-;n(;incj, 
 
 to fight, i. :v.)C, 
 
 l)rovociitioti no excuse, if>. 
 
 of cndoavouriiif^ to ])rovoko aiiutlicr to Hund u cliullciigc, iL 
 of the intent, ih. 
 
 of wonls of provocation, i. 307 
 
 in what county the venue may 1)C laid, i'l. 
 
 criminal information for, if/. 
 
 punishment for, /A. 
 jury, iii. ().!7 
 
 CHAMrKirrY, 
 
 description of, i. 3<5G 
 by statutes, ib. 
 punishment for, ib. 
 ])lace of trial, ib. 
 CHANCE MEDLEY, 
 
 killing by, i. 845. — Sec tit. Homicide, 
 CHANCERY, 
 
 forgery of documents relating to suitoi-s in, ii. 805 
 answers aud depositions of prisoner in, when evidence, iii. 479 
 CHAPELS, 
 
 sacrilege in, ii. 55, 5G 
 setting fire to, ii. 900 
 pulling down by rioters, i. 3G8 
 CHAllACTER, 
 
 giving evidence of, on indictment for subsequent felony, i. G7 
 
 of prosecutrix in rape, impeaching, i. 8G8 
 
 of prosecutor, when and how it may be impeached, iii, 388 
 
 of prisoner, ib. 
 
 evidence of good character must be applicable to the particular charge, ib. 
 
 must not refei' to particular acts, ib. 
 prosecutor cannot show prisoner's bad character, iii. 38 D 
 
 unless he give evidence of character, ib. 
 only general evidence admissible, ib. 
 mode of leaving it to the jury, iii. 391 
 bad character as a gi-ound of suspicion, iii. 390 
 good character, presumption from, iii. 323 
 evidence of knowledge of, iii. 377 
 
 of witness to impeach his credit, iii. 59L — See tit. AYitness. 
 CHEATS.— See Ln'dex, Vol. IL 
 
 attempts to defraud, when not indictable, i. 195 
 frauds relating to bullion, i. 217 
 frauds by public oflicers, i. 302 
 
 undue abatement of the price of native commodities, i. 349 
 in order to constitute, there must be a prejudice received, ii. 511 
 if on a trial for a cheat it appears in evidence to amount to a larceny, it 
 will still be punishable as a misdemeanor, ii. 511 
 
 cheats and frauds punishable at common law, ii. 527, et seq. 
 
 indictment, ii. 523 
 
 pimishment, ii. 524 
 cheats and frauds by means of false pretences, ii, 524, et seq. — See tit. 
 
 F.vLSE Pri:ti:nci:.s. 
 of cheats and frauds punishable by other statutes, ii. G07, et seq. 
 
 fraudulent conveyances, ii. G07 
 
 gaming, ii. G09 
 
 conjuration, fortune-telling, etc. ib. 
 
 forging, ttc, ti-ade marks, ii. GIO, et seq. 
 
 fraudulent concealment of deeds, or falsifying pedigree, ii. G 1 i
 
 Index. 725 
 
 CHEATS— w«</???/«/. 
 
 Land Transfer Act, 1875, ii. Glo 
 Coal Mines Regulation Act, 1872, ih. 
 Admii-alty Powers Act, ib. 
 Mutiny Acts, ii, 61 G 
 
 cheats and frauds in particular trades, ii. Gl7 
 CHEMISTS, 
 
 forging register of, ii. 792 
 CHEQUE, 
 
 on banker, without effects or authority, not indictable at common law, 
 ii. 521 
 
 but it is as a false pretence under the statute, ii. 551, ct scq. 
 
 forging, altering, &c., the crossing of, ii. 821 
 CHILD. — See tit. Infant. 
 
 woman concealing the birth of, i. 801 
 
 carnal knowledge of, i. 871, et se<i. 
 
 child stealing, i. 905 
 
 exposing or abandoning, i. 904, et seg., 196 
 
 when competent as a witness, iii. 612 
 
 care of child of woman convicted of crimes, iii. 681 
 CHLOROFORM, 
 
 administering to commit offences, i. 947 
 CHOKE, 
 
 attempting to, in order to commit offences, i. 94G 
 CHRISTIAN RELIGION, 
 
 libels upon, iii. 193 
 
 part of the law of the land, iii. 195 
 
 court will not meddle with differences of opinion, ib. 
 
 dispassionate discussions allowable, iii. 196 
 CHURCH.— See tit. Saciulegk. 
 
 riotously pulling down, i. 368 
 
 affrays in, i. 391 
 
 breaking windows of, i. 400 
 
 arrest of clergyman in, i. 401 
 
 burglary in, how stated, li. 40 
 
 goods belonging to ; how laid, ii. 56 
 
 burning, ii. 900 
 
 injuring monuments, <tc. in, ii. 965 
 CHURCHWARDEN, 
 
 refusing to call vestries, &c., i. 301 
 
 obtaining a silver cup or the like, colore officii, i. 30 1 
 CHURCHYARD, 
 
 affrays in, i. 391 
 
 5&Li^ Edw. 6, c. 4, i. 398 ^ 
 
 striking in, itc, ib. 
 
 arrest of clergyman in, i. 101 
 
 stealing fixtures in, ii. 21 1 
 
 injuring monuments, itc. in, ii. 965 
 CIRCUMSTANTIAL EVIDENCE, iii. :'.2n 
 CLERGY, 
 
 benefit of, abolished, iii. 637 
 CLERGYMAN, 
 
 a spiritual jicrson taking a farm liable lo the i.cnalty of blatutr llm. s, 
 but not indictable, i. 195 
 
 arrest of, in ciuirch or cliurchyanl, i. 401 
 
 whilst performing service, ic, ib. 
 CLERK, 
 
 larceny of his niaster'a property, ii. 310, 326.— See tit. Skkvants.
 
 726 Index. 
 
 ( 'l,l',IJ.K — rnufliiitrif. 
 
 oml)oz/,li!inuiit l>y, ii. 3:l'J. — Soc tit. JvMni:/zi,EMKNT. 
 of iissizo, Htiitiito 118 ti>, iii. OTU 
 CLOTH, 
 
 in progress of manufacture, larceny of, ii. 130 
 destroying, ii. \) V.) 
 CO A I -MINK, 
 
 setting fire to, ii. 9 15 
 stealing from, ii. 210 
 
 Coal-miuo llcgulation Act, 1S72, ofTenccs nnclcr, ii. 015 
 COCK-PIT, 
 
 a nuisance, when, i. 4li8 
 COCK-TII ROWING, 
 
 at Shrove-tiile, illegal, i, 819 
 death by, ib. 
 CODICIL, 
 
 stealing, itc, ii. 219 
 forging, ii. 819 
 COERCION, 
 
 excuse from, for committing a crime, i. 139, et seq.—Sec +it. Capability. 
 COFFINS, 
 
 ownership now laid, ii. 25G 
 COIN. — See Index, Vol. I. — See tits. Coining Instruments — Bullion. 
 offence, relating to the, Consolidation Act as to, iii. GG8 
 description of in indictments generally, i. 24 
 
 having counterfeit coin in possession with intent to utter it, no offence at 
 common law, i. 190 
 
 but it is good evidence of having procured it, which is an offence, 
 
 i. 191 
 having coining instruments in possession with intent to use 
 
 them, ih. 
 counterfeiting, i. 200, et seq. 
 of principals and accessories in, i. 208 
 
 what sufficient proof of the coin being counterfeit, i. 209 
 what not sufficient evidence of, counselling, ifcc, i. 203 
 venue, ib. 
 
 ottenccs at sea, i. 209 
 apprehension of offenders, i. 210 
 sureties of the peace, ib. 
 solitary confinement, ib. 
 hai-d laliour, ib. 
 costs, ib. 
 
 coining-tools and base money how to be secured and disposed of, 
 i. 211, 212 
 impairing, i. 213 
 
 importing counterfeit or Uglit vioney, i. 214 
 exporting counterfeit money, i. 216 
 
 to the colonies, ib. 
 littering or tendering counterfeit coin, i. 225 
 
 having three or more pieces in possession with intent, etc., i. 22G 
 second offence, i. 227 
 
 evidence of previous conviction, etc., ib. 
 proceedings on the trial, etc., ib. 
 indictment — two utterings on the same d:iy, i. 232 
 evitlence of guilty knowledge, i. 233 
 all co-operating guilty, i. 235 
 form of indictment, i. 236
 
 Index. 727 
 
 COIN — cnntintied. 
 
 uttering foreign counterfeit coin, 
 first uttering, i. 237 
 second, ib. 
 third, ib. 
 
 proceedings against persons having iu custody more than a 
 certain quantity, ib., note (v) 
 uttering foreign medals, ib. 
 huying, selling, or imying counterfeit coin at a lower rate than its denomina- 
 tion, i. 239 
 
 costs of prosecutions, i. 89 
 COINING-INSTRUMENTS.— See Index, Vol. I. 
 
 making, mending, or having in possession, i. 218 
 COLLECTORS OF TAXES, 
 
 assaulting, i. 980 
 COLLEGE, 
 
 setting fire to buildings belonging to, ii. 902 
 COLONIES, 
 
 mode of ascertaining law in, iii. 423 
 acts of state in, proof of, iii. 420 
 COMBINATION, 
 
 societies taking unlawful oaths, &c., to be deemed unlawful combinations, 
 i. 377, et seq. 
 COMMENCEMENT OF PROSECUTION, 
 
 what and when, i. 626 
 COMMISSIONS 
 
 in the army, selling, i. 314 
 COMPANIES, 
 
 directors and oflBcers fraudulently appropriating property, ii. 895 
 keeping fraudulent accoiuits, ib. 
 destroying books, ikc, ib. 
 publishing false statements, ii. 396 
 COMPARISON 
 
 of handwriting now allowed, iii. 437 
 COMPENSATION 
 
 for apprehension, i. 99, 100 
 to persons defrauded or injured, i. 105 
 COMPOUNDING OFFENCES, 
 compounding felony, i. 292 
 
 taking reward for helping to things stolen, i. 293 
 advertising a reward for the return of stolen goods, ib. 
 compoimding misdemeanors, ib. 
 
 after judgment by leave of the court, ib., ct seq. 
 compomiding inlbrmation on penal statutes, i. 293 
 18 Eliz. 0. 5, /6. 
 
 statute applies, though no oflence has been comniittcd, i. 296 
 so though no action or infoimatiun ) emling, ///. 
 contracts, itc, in consideration of drojiping a prosecution, «tc., void, i. 294 
 CONCEALMENT.— See tit. iMukdicu. 
 amount of indictment for, i. 60 
 of the birth of children, i. 801, et seq. 
 verdict finding, ib. 
 CONCLUSIONS, 
 
 information in indictments, i. 35 
 CONFEDERACY, 
 
 evidence of joint or scveml acts, to prove, i. 157, ct srq. 
 crimes done in pursuance of, in prosecution of unlawful j.uriioscs, ib., 
 et seq.
 
 7'28 Index. 
 
 CONFKnKKACY— A,„//;/,m/. 
 
 Uliliiwfiil, what to 1)0 <k:c'liicil, i. ',\~il , rl sn/. 
 
 CON KKSS ION, 
 
 before inai^isti-.itc. — Sec Statkmknt ok Accuskd. 
 Kullicii'Ut for conviction without proof, (iHkikIi, iii. 1 10, el sff/. 
 must 1)0 froo und voluntary, iii. M I 
 object of this rule, iii. 412 
 f^'euenil principle, ih. 
 what proniiscs and inducements will cxcludo, if'. 
 advising prisoner to tell the truth, iii. 1 1.") 
 ])romise to bo favourable, iii. \li 
 obtained by <!;ift of y;lass of gin, iii. 4ta 
 when drunk, ib. 
 
 inducement to inijilicatc another prisoner, iii. 44(5 
 telling- prisoner what ho says may bo used in his favour, ih. 
 telling prisoner what he sayH will be used against him, iO. 
 oath not to reveal, iii. 447 
 jiromise that ])risoncr should .see his wife, i/j. 
 made under mistaken supposition, iii. 448 
 inducement to one prisoner will not exclude a confes.sion by another, 
 
 ib. 
 letter from prisoner in gaol, iii. 449 
 with a view to being admitted as a witness and receiving a pardon, 
 
 iii. 449, et seq. 
 inducement as to one crime will not exclude confession as to another, 
 iii. 4-52 
 
 unless they are parts of the same transaction, ib. 
 made in consequence of persuasion by a clergyman, and not with a 
 view of temporal benefit, iii. 4.")3 
 what threats and menaces will exclude a confession, iii. 456 
 threat to apprehend a boy on a charge of arson, ib. 
 words not amounting to a menace, iii. 457 
 ambiguous words, ib. 
 xuidcr false imprisonment, iii. 458 
 made after one undul}' obtained, or after inducements once made, ib. 
 
 where one confession obtained by an inducement ought to be strong 
 evidence to shew that effect of it has been done away with before 
 subsequent confession admissible, iii. 459 
 where prisoner has been duly cautioned by magistrate, iii. 461 
 improper inducement by a policeman and a statement to a superin- 
 tendent afterwards, iii. 462 
 inducement by pei'son in superior authority, ib. 
 
 by a magistrate held removed by a subsequent com- 
 munication from him, iii. 463 
 throat of taking before a magistrate done away with by taking 
 thither, ib. 
 as to persons whose inducements will exclude, ib. 
 
 person accompanying the prosecutor in pui-suit, iii. 464 
 master of a ship, ib. 
 
 a person having a prisoner in custody, ib. 
 person supposed to possess authority, iii. 465 
 inducements used in presence of person in authority, ib., et seq. 
 by husband in presence of constable, ib. 
 by wife of the prosecutor, iii. 467, 468 
 by wife of one of two partners, ib. 
 result of cases, iii. 468 
 
 of girl of fifteen years old occasioned by many applications amounting 
 to threats, ib.
 
 Index. 720 
 
 CONFESSION— co»f?»»ef?. 
 
 inducements by persons not in authority, iii. 470, 471 
 by a railway servant, iii. 471 
 elicited by questions, iii. 472 
 
 where questions put by police officer, ih. 
 by other persons, iii. 473 
 on oath when evidence, ib. 
 ■uhen not admissible, ib. 
 
 prisoner examined on oath by mistake and err(»r corrected, iii. 470 
 where prisoner examined on oath against anothci', ib. 
 ■where prisoner has been improperly compelled to answer a question 
 
 which might criminate him, iii. 478 
 compulsory examination of bankrupt, ib. 
 answers and depositions in chancery, iii. 479 
 affidavit, iii. 480 
 
 where prisoner examined before a poor law inspector, ib. 
 deposition before a coroner, ib. 
 
 result of cases where prisoner examined on oath, iii. 482 
 discoveries and acts done in consequence of confession unduly ob- 
 tained, ib. 
 
 where property is found in consequence of, iii. 483 
 acts done in consequence of, iii. 484 
 declarations accompanying such acts, iii. 485 
 against whom confessions and statements evidence, iii. 485 
 when statement made before a magistrate, ib. 
 on a summary conviction, iii. 486 
 deposition on a charge of felony, ib. 
 
 iu the hearing of a prisoner not before the magistrate, iii. 487 
 statement made by thief in presence of receiver, iii. A^i 
 statement to prisoner denied by him, ib. 
 statement in presence of prosecutrix, iii. 489 
 in the hearing of a person, ib. 
 of prisoner in respect to a different offence to that with which 
 
 he is charged, ib. 
 of prisoner as to stolen pi-oporty before any suspicion against 
 
 him, ib. 
 of prisoner when inadmissible in his favour, iii. 490 
 of agent of defendant, lb. 
 of prosecutor, iii. 49 1 
 acts of servants, ib. 
 proof of confessions and statements when onus on prosecutor to contrailict 
 same, iii. 491 
 
 prosecutor must show confession voluntary, ib. 
 
 examinations not in the words of prisoner are inadmissible, ib. 
 
 names in nuist be mentioned, iii. 492 
 
 whole of must be stated, iii. 493 
 
 where prosecutor must negative account given by prisoner, iii. IIU, 
 
 495 
 mode of introducing confessions in evidence, iii. !!><> 
 when officer to whom made shouKl be called, iii. 497 
 where after confession received in evidence it turns out that it was 
 improperly obtained, iii. 49S 
 CONFIDENTIAL COMMUNICATIONS, 
 
 what arc, iii. 539, et so/. 
 CONGIJKC.VTION, 
 
 disturbing, i. 399, ct svq. 
 CONIES, 
 
 larceny of, ii. 238
 
 730 I itdc.r. 
 
 CONIES— cw^■//»' 7. 
 
 tiikiiif,' or killing' in a warren, ii. IK) I 
 CONJIIIIATION, 
 
 cheatH by prelonilinL,' to practise, ii. GOO 
 CONSENT, 
 
 no^'iitivin'4, iii. .HUG 
 
 consimi;a('Y, 
 
 prosecution ft)r, not niaintainaljlc against a liiisbancl anfl wife, i. 115 
 
 for an unlawful and seditious asscnd)ly, i. 1577, et koj. 
 
 societies taking unlawful oaths, ike, to be deemed unlawful eond»inationR, 
 
 i. 377 
 to murder, i. OOG, et xeq. 
 descriptions of, iii. 109 
 
 against the public justice of tlio kingdom by agreeing to make 
 false charges and accusations, iii. 110 
 the false charge need not be prosecuted, iii. Ill 
 the confederacy will be equally criminal though the proceedings 
 
 intended to be instituted were defective, ib. 
 the confederacy must be false and malicious, iii. Ill 
 to pervert the course of justice by producing a false certificate of a high- 
 way being in repair, iii. 112 
 to defeat an information, iii. 114 
 to prevent a prosecution, ih. 
 to obtain security from a defendant, iii. 115 
 to raise the price of the public funds by false rumours, ih. 
 to impoverish the farmers of excise, iii. IIG 
 to obtain money by procuring the appointment of a peihon to an office in 
 
 the customs, ih. 
 to commit riots, iii. 11 G 
 to excite discontent, iii. 117 
 
 to marry paupers, in order to charge a parish, ih., et seq. 
 to charge a man with being the father of a bastard child, iii. 119 
 to defraud, ih., et seq. 
 
 to make a fraudulent acceptance of a bill of exchange, iii. 119 
 to defraud tradesmen, iii. 120 
 by brokers attending auctions, ib. 
 to fabricate shares in a joint stock company, ih. 
 to barter unwholesome wine, iii. 120 
 to cheat by fraudulent wager, ib. 
 to solemnise a marriage, iii. 122 
 
 to procure a marriage by license obtained by a false oath, ih. 
 to seduce a young woman, iii. 122 
 to procure a girl to have illicit connection, iii. 123 
 to carry away and marry a female, ih. 
 to imiioverish a man in his trade, ih. 
 to commit a civil trespass, iii. 124 
 
 to cheat and defraud a man by selling him an unsound hoi-se, ih. 
 to cheat of part of the price of a horse, iii. 125 
 not for conspiring to deprive a man of the ofhce of secretary to an illegal 
 
 trading company, ih. 
 to sink a foreigni ship, iii. 12G 
 by one partner to defraud another, ih. 
 complaint that members of House of Lords had conspired to deceive the 
 
 House, ih. 
 prosecution and proceedings, iii. 127 
 
 more than one person must be found to have conspired, ih. 
 imperfect verdict as to one, and acijuittal as to others, ib. 
 judgment on one before trial of others, iii. 128
 
 Index. 7'^^\ 
 
 CONSPIRACY— coHfrH?«^(?. 
 
 statements in indictment, iii. 129, et seq. 
 
 where it is sufficient to state the conspiracy, ih. 
 
 ■where overt acts must be stated, ih. 
 
 not necessary to state tlie means where the thing intended is illegal, secus 
 
 whei'e it is legal, iii. 131 
 conspiracy to obtain the means and power of transferring stock, iii. 129 
 indictment need not allege tliat the prosecutor is innocent, iii. 130 
 indictment for conspiring to defraud of divers goods, iii. 131 
 purchasers in the funds, ih. 
 
 to obtain goods without paying for them, iii. 132, 133 
 by fraudulent deed, iii. ih. 
 
 to defraud of the fruits of a verdict, iii. 133 
 
 to cause imported goods to be delivered without paying duty, iii. 135 
 count bad for not stating names of persons intended to be cheated, ih. 
 where conspiracy is well laid, but overt act insufficiently, iii. 137 
 counts charging a conspiracy to raise discontent, &.C., and to stir up ill 
 
 will between different classes, iii. 138 
 to obtain by means of intimidation and the exhibition of physical force a 
 
 change in the government, ih. 
 overt act unconnected with conspiracy, iii. 141 
 technical averment of conspiracy, iii. 1-42 
 place of trial, ih. 
 
 jurisdiction of Quarter Sessions, ih. 
 
 where charge must have been heard before a justice, iii. 133 
 evidence, ih. 
 
 wife of one defendant incompetent for the others, iii. 143 
 acts or words of one when evidence against others, ih., et seq. 
 evidence of what took place at dittereut meetings, iii. 145 
 
 of hand-bills, iii. 14G 
 
 of entries at custom-house, iii. 147 
 proof of the conspiracy, iii. 148 
 
 it may be inferred from the separate acts of the parties, ih. 
 persons joining after conspiracy is formed, iii. 141) 
 
 meeting for one purpose, and conspiring for another, ih. 
 general evidence of its nature, ih. 
 
 either the conspiracy may be proved, or the acts of the parties, iii. I'lO 
 cumulative instances of fraud, where admissible, iii. l.")l 
 meaning of 'and others' in an indictment, ih. 
 court will take judicial notice of a war, ih. 
 whei-e it is unnecessary to produce a cheque alleged to be forged, ih. 
 
 to defraud by representing a person in oi)ulont circumstauccs, iii. 152 
 proof of conspiracy to defraud of acceptances, iii. 153 
 
 of money, ih. 
 meaning of 'false pretences 'in an indictment, //,. 
 to obtain railway tickets, iii. 154 
 evidence of loss of profits, ih. 
 record of accpiittal of ono defendant, ih. 
 divisible averment, ih. 
 mstances of variances, iii. 155 
 misdescri[)tiou of statute, ll>. 
 
 particulars of charges, ih. 
 
 acquittal of defendant intended to be called a.s a witness, iii. 15(5 
 
 election as to counts, ih. 
 
 change of venue, ih. 
 
 cross-examination where only one defendant calls witnesses, i7>. 
 
 sutlicient to convict of so much ;us charges an indictable ofloncc, iii. 157 
 
 verdict on sevenJ counts wliero only one conspiracy is proved, ih.
 
 7:\'l Index. 
 
 VO>iSVl\l\('Y - roil fill lint. 
 
 bfvcnil rm<rni<,'s on one clmrgc arc \w\, iii. IHT 
 
 general jiul^'incnt on several counts, uny of tlicin being liad, is wrong, iii. loS 
 ])unishnient, ih. 
 
 ilc'fondant must be [iroscnt, on mot ion in cduit after conviction, iii. 1 o!) 
 trade disputes, ifi. 
 
 Tnido I'liion Act, 1^71, <6. 
 
 Conspiracy and Protection of Projicrty Act, LSTT), iii. IGl 
 
 aniendnicnt of law of conspiracy in trade disputes, ih. 
 
 breach of contract by persons employed in su])ply of gas or water, ih. 
 
 breach of contract involving injury to i)ersons or j)roi)erty, iii. IGlJ 
 
 neglect by master to ])i*ovidc food for servant or apprentice, ih. 
 
 penalty for intimidation by violence or otherwise, iO. 
 
 power to be tried by indictment and not by summary conviction, iii. 
 
 1G3 
 regulations as to evidence, ih. 
 detinitions of words in Act, iii. 104 
 repeal of Acts, iii. 165 
 
 cases under rei)caled Acts, iii. IGG, et seq. 
 CONSTABLE.— See Officers, Arrest. 
 
 neglecting duties of office, indictable, i. 307 
 
 fiueable at petty sessions, i. 301 
 refusal to execute the office of, etc. indictable, i. 307 
 corporation has no power of common right to choose, i, 308 
 who liable to serve the office, i. 307 
 indictment for refusing to serve, ib. 
 refusal to be sworn, evidence of refusing to serve, ih. 
 suppression of affi-ay by, when in his presence, i. S93, et seq. 
 no right to apprehend when affray is not committed in his presence, i. 394 
 unless by warrant from a magistrate, ib. 
 assaulting constables, i. 97-4, et seq. 
 special constables, i. 975 
 rural police, ib. 
 police of towns, ib. 
 evidence of acting as constables, sufiicient, i. 976 
 constable's power in preserving the peace, i. 393, 977 
 authority to apprehend in felonies,!. 707, 720, 977 
 in misdemeanors, i. 723, 977 
 in public-houses, i. 727, 977 
 must act within his proper district, i. 978 
 
 executing warrants, ib. t 
 
 execution of warrants by, out of their district, ih. 
 when guilty of excess, i. 979 
 handcutfing, searching, ib. 
 CONTAGION, 
 
 spreading disorders, i. 2GG, et seq. 
 CONTINUANCE, 
 
 where a particular state is proved at a given time, the presum]4ion is 
 that it had existed for a reasonable time before, and that it continued 
 for a reasonable time afterwards, iii. 324 
 CONTRACT, 
 
 breach of, punishable under Conspiracy Act, iii. IGl, 1G2 
 CONTUA FORMAM STATUTI, i. 35 
 
 where conclusion of slatidi for statutoritm, and rice versa, i. 35 
 entire omission of, ih. 
 CONVICTIONS, 
 
 summary proceedings for common assaults, i. 9G8 
 proof of previous convictions, iii. 41G
 
 Index. 7.'^ 3 
 
 CONVICTIONS— co«<m»er^. 
 
 before justices, how i^roved, iii. 424 
 COPPER 
 
 coin. — See tit. Coix, 
 COPY 
 
 of documents, where admissible, iii. 345, et scq. 
 CORN, 
 
 hindering the exportation of, or preventing its circulation, i, 281 
 11 Geo. 2, c. 22, ib. 
 
 pai'tially repealed, ib. 
 36 Geo. 3, c. 9, i. 282 
 
 persons using violence to deter others, etc., ib. 
 24 & 25 Vict, c. 100, s. 39, summary proceedings before two nia;^is- 
 trates, i. 283 
 setting fire to crops or stacks of, ii. 932 
 CORONER, 
 
 statute as to coroners' inquests, iii. G41 
 
 extortion or other breach of duty by, i. 297, 300, 303, 304 
 
 too speedy interment of a corpse without sending fur, i. G20 
 
 what ought to be done on the happening of a violent death, ih. 
 jurisdiction to hold inquests, i. 785 ; iii. G41 
 depositions before, iii. 480, 533 
 
 7 Geo. 4, c. 64, s. 4, enactment as to, iii. 533, 500 u. 
 when evidence, ib. 
 prisoners entitled to copies, iii. 430 
 CORPORATION, 
 
 chief officers of, absenting themselves from, or hindering elections, ic, i. 301 
 has no power of common right to choose a constable, i. 308 
 how to be described, ii. 258 
 ownership of, how to be laid, ih. 
 
 included in the word ' person ' in criminal statutes, i. 2 
 CORPSES, i. 611.— See tit. Dead Bodies. 
 CORROSIVE FLUID, 
 
 throwing with intent to burn, i. 953 
 COSTS, 
 
 iu cases of felony, i. 86 
 misdemeanors, ih., et seq. 
 
 Secretary of State may make regulations as to costs, i. 8S 
 
 justices' certificate not concUisive, ib. 
 
 costs of misdemeanors under the Criminal Law Consolidation Acts, 
 
 i. 89 
 in Mint cases, ib. 
 on conviction of assault, i. 968 
 
 in cases of ill-treatment of apprentices, servants, iVo., i. 918 
 of misdemeanors under OlVcnces against the Pcraou Act, i. 968 
 of assault under 14 it 15 Vict. c. i., 19, 90 
 
 13 & 14 Vict. c. 101, b. 9, ib. 
 on Poor Law officers, ib. 
 in ])erjury, i. !) I 
 in l)ankruptcy, ih. 
 under Merchant Shipping .\ct, ih. 
 cases removed to Central Criminal Court, ib. 
 other cases at that Coiu't, ib, 
 iu adjoining counties, i. 92 
 in exclusive jurisdiction, ih. 
 binding by sessions sufficient, i. 93 
 cases where costs have been allowed, ih. 
 who is the pn^secutor, ib.
 
 734 Judex. 
 
 COST^—rnvflnurtl. 
 
 ftiKitlier ciiimot he allowed costs, i. 94 
 
 piiiiiii;?, i/>. 
 
 where not jiUowed, i. 05 
 
 (i|il>ielieiision jvliroiid, /f>. 
 
 renioviii;^ from Milll)iink. ?V>. 
 
 cases removed by ccrdorai-i by the prosecutor, ih. 
 
 i)y tlie defendant, i. UG 
 
 no costs of attending an inciucst, iO. 
 
 extra allowances, cases of, i. 97 
 
 of otherwise carrying on the prosecution, ih. 
 
 of cases reserved, i, 98 
 
 where trial i)ostponed, ib. 
 
 out of a borough fund, i. 99 
 
 compensation for apprehension, if). 
 
 to family of person killed, i. 100 
 
 power extended to sessions, iO. 
 
 cases as to, i. 101 
 
 sacrilege, ib. 
 
 bidlock stealing, ib. 
 
 burglary, ib. 
 
 attempt to murder, ib. 
 
 stealing from the person, ib. 
 
 for exertion, ib. 
 
 where no expense or loss of time, ib. 
 
 affidavit where necessary, i. 102 
 
 entire order must be served, ib. 
 
 witnesses for the defence, 26. 
 
 persons convicted of treason or felony to pay costs, i. 103, 104 
 
 of person acquitted under Vexatious Indictment Act, ib. 
 
 in libel, i. 103 ; iii. 227, 229 
 
 on indictment for nou-repair of a highway, i. 50G, et seq. 
 COTTON GOODS, 
 
 stealing in course of manufacture, ii. 436 
 
 destroying or damaging whilst in course of manufacture, ii. 919 
 COTTON MILL, 
 
 bm'uiug, ii. 901 
 COUNSEL, 
 
 communications with client when privileged, iii. 539 
 COUNTERFEIT 
 
 money. — See tit. Coin. 
 
 possession of, with intent to utter, not indictable, i. 190 
 secus, proawing it with such intent, i. 191 
 
 bullion, i. 217, et seq. 
 COUNTERFEITING 
 
 great seal, itc, ii. 740 
 COUNTING-HOUSE, 
 
 breaking into and committing a felony therein, ii. 74 
 with intent to commit, itc, ii. 76 
 COUNTS, 
 
 for stealing and receiving, may be joined, ii. 479 
 COUNTY.— See Venue. 
 COURT, 
 
 striking or drawing weapon in the King's court of justice, i. 071 
 
 inferior courts, i. 973 
 rescuing without striking iu, ib. 
 COURT FOR CROWN CASES 
 
 can only consider indictment as amended, L 62
 
 Index. 735 
 
 COURT FOR CROWN CASES— con?i«Mfc/. 
 
 costs in, i. 98 
 COURT-MARTIAL, 
 
 return from transportation after sentence of, i. Go2 
 COURT ROLLS, 
 
 forging, ii. 821 
 COURrS OF RECORD, 
 
 stealing, removing, or obliterating records, Ac, ii. 'I'li 
 forging records, &c., ii. 745 
 
 process of com-ts not of recoi'd, ii. 742 
 name of officer of, ii. 805 
 COW, 
 
 stealing or killing with intent to steal, ii. 287 
 indictment for, not supported by proof of stealing a heifer, ii. 21*0 
 principals iu tlie second degree and accessories, ii. 287 
 maliciously killing, &c., ii. 'J27 
 CRIMES, 
 
 . capability of committing. — See tit. C.vp.vbility. 
 pex'son convicted of, a competent witness, iii. U18 
 CRIMINAL INFORMATION, 
 
 against justices, Ac, i. 297, et seq. 
 CROSS-EXAMINATION.— See Witness. 
 
 of witness, iii. 559 
 CURTILAGE, 
 
 outer fence of, breaking, whether felonious, ii. 5 
 buildings within, ii. 15 
 where burglary, &c., does not extend to buildings within, //>. 
 buildings within, breaking and committing a felony in, ii. 70 
 
 with intent, &c., ii. 76 
 principals in second degree and accessories, ii. 70 
 cases where buildings were held parcel of the house, ii. 71 
 outer fence not opening into a building, ii. 73 
 CUSTOM-HOUSE OFFICER, 
 
 indictment for assaulting in execution of his office, quashed, i. 195 
 assault on, indictable at common law, i. 270 
 
 count for common assault on, not triable in a wrong county, i. 280 
 CUSTOMS.— See tit. Revenue Laws. 
 
 evading or resisting the duties of, i. 270, et scq. ; iii. 092 
 
 forgery in resi)ect of, ii. 78G 
 
 statute consolidating the laws as to, iii. G92 
 
 D. 
 
 DAMS, 
 
 of fishponds, etc., destroying, ii. 401 
 of canal, river, reservoir, destroying, ii. 940 
 DEAD BO U IKS, 
 
 taking uj), even for the puiiiosea of dissection, indictable, i. <»1 1 
 
 though the particular place from whence taken lie neitlicr st;iled nor 
 proved, ib. 
 to disinter is a misdemeanor, i/>. 
 even though motive l)e laudable, i. GI2 
 defence of want of means to provide l»urial, i. 013 
 refusal or neglect to bury, a misdemeanor, j6. 
 right to burial, i. G14 
 who bound to bury, il). 
 licenses to practise anatomy, i. Gl 5
 
 736 Index. 
 
 DKAD V,0\)\V.^—rnvtivur<1. 
 
 "2 it ;{ Will. 1, c. T;'), jjiovidin^' f-r HclinolH of anatomy, i. Gl."i, d h(]. 
 
 tlio jirc veil till L,' from Itciii;^ iiitcnvd, iiidictalile, i. Gil) 
 
 the [)rcveiitiiijj; rciuliiijj; tlic burial Keivice, iiidictabk', ih. 
 
 too speedy intenncnt of, after a vinlcnt deatii, i. Gl.'0 
 DEAF AND DUMP., 
 
 when to bo considered an idiot, i. 1 13, and note {n) 
 
 arraignment, kc. of, ih. 
 DEATH, 
 
 register of, how proved, iii. '12G 
 
 sentence of, mnst be jiassed in mnrder, i. 03. 
 DEATHS KECISTKATION ACTS, ii. 8U8 
 DEl'.ATINC; SOCIETIES, 
 
 when illegal, i. 38-4 
 DEBENTUllE, 
 
 stealing, kc, ii. 223 
 
 forging, ii. 768 
 DEBTORS ACT, 18G9, 
 
 offences under, ii. 440 
 DECLARATION OF TITLES ACT, 
 
 suppression of deeds under, ii. 815 
 DEDICATION 
 
 of a road to the public, i. 417, et seq. 
 
 of a bridge, i. 533 
 DEED, 
 
 stealing, itc, ii. 220 
 
 fraudulent concealinent of, ii. G14 
 
 forging, ii. 810 
 
 forging, registry of, ii. 814 
 
 causing to be executed by force, ii. 81 
 by fraud, ii. 525 
 
 forging attestation to, ii. 819 
 DEER, 
 
 larceny of, ii. 238 
 
 stealing in inclosed groimd, ii. 298 
 what is an inclosure, ib. 
 in xminclosed part of a forest, chase, &c., ii. 297 
 
 after another offence as to deer, ib. 
 
 what the word ' deer ' includes, ib. 
 
 persons found in possession of venison, ii. 298 
 
 setting engines for taking deer, ii. 299 
 
 deer-keepers may seize guns, ib. 
 
 resistance to them, ib. 
 
 principals in the second degi-cc and accessories, ii. 300 
 
 apprehension of otl'enders, ib. 
 DEFECT.— See tit. Capadility. 
 
 in indictment cured, i. 35 
 DEFENCE, 
 
 costs of witnesses for, i. 102, 103 
 DEFILEMENT 
 
 of children, i. 871, 877 
 DEMANDING TROPERTY, 
 
 with menaces or by force, ii. 79 ; iii. 234 
 
 on forced instiumcnts, ii. 885 
 DEPOSlTfONS, 
 
 in all indictable offences, iii. 500 
 
 before magistrate, how to be taken, iii. 510 
 
 present enactments as to, upon ichich prisoner covanittcd for trial, iii. 511
 
 Index. 737 
 
 DEPOSITIONS— cow ^w«<erZ. 
 
 examination of witnesses, iii. 511 
 
 oath to be administered, U). 
 
 in certain cases may be i-eceived in evidence on trial, ib. 
 
 examination of witnesses on behalf of prisoner, iii. 513 
 must be duly taken, ib. 
 
 mnst be taken in presence of magistrate and prisoner, iii. 514, 
 515, 516, 517 
 
 when every word not taken down, iii. 517 
 
 full opportunity of ci'ossexamination, iii. 518 
 form of, signing same, ib. 
 
 several depositions may have one caption, iii. 518 
 
 as to caption being necessary, iii. 519 
 
 must be in words of accused, iii. 520 
 
 must be signed by deponent, ib. 
 and by magistrate, ib. 
 deposition admissible %vhen witness so ill as not to be able to travel, iii. 
 521 
 
 when life would be endangered, ib. 
 
 where witness came to tlie court, ib. 
 
 when witness too ill to give evidence, iii. 521 
 
 cases where court not satisfied witness too ill, &c., iii. 522 
 
 generally surgeon should be called to prove illness, ib. 
 
 where witness pregnant, iii. 523 
 
 old age and nervousness, ib. 
 other cases in which admissible, iii. 523 
 
 where witness cannot be found, ib. 
 insane, iii. 524 
 at sea or abroad, iii. 525 
 
 may be used by tlie prisoner to contradict witness, iii. ib. 
 and by the Crown with permission of court, iii. 526 
 when admissible upon trial of a different offence, iii. ib. 
 
 where charges are substantially different, iii. 528 
 
 to prove a motive, iii. 529 
 proof of deposition on tried, iii. 530 
 
 every deposition before magistrate ought to be returned, ib. 
 
 before a coroner, how proved, ib. 
 
 in order to examine on it, ib. 
 
 when made by perscni of weak intellect, ih. 
 
 parol evidence of, when admissible, iii. 531 
 to explain or add to, ib. 
 before coroners, iii. 533 
 
 distinction between position of prisoner before coroner and before 
 magistrate, ib. 
 wliere witness examined before trial, iii. 531 
 
 enactment as to, i/>. 
 
 order fur, cannot be granted by (^). 15., iji. 535 
 offences committed abroad — Merchant Shipping Act, iii. 536 
 
 in India, ib. 
 
 offences committed abroad by public scn'ants, ib. 
 
 Merchant Shipiiing Act, ib. 
 cross-examination as to statements in the deposition, iii. 5S3 
 query, how affected by the 28 k 29 Vict. c. IH, s. 5, ib. 
 inspection of, iii. 428, 4-29 
 
 cojjies of, to be allowed to prisoner, iii. 429, 430 
 DESERTION, 
 
 seducing soldiers, ttc. to, i. 251, it S'</. 
 
 by soldiers or sailors, consequences of, to the deserter, i. 252 
 
 VOL. III. 8 B
 
 738 Index. 
 
 DESTKOYIXd miIM)lN(i, 
 
 with intent to nuirdri-, i. 1)12 
 DKSTIMU'l'IVK sri'.STANCK, 
 
 Kciidiii^', itc. with intcMit to l)\irn, Ac, i. 9.04 
 luhiiiniKtoriii)^' with intent to murder, i. '.il I 
 atteniiit to iidministcr, i. 1)13 
 administering, bo as to endanger lite, i. Dlo 
 DKTAINKll, 
 
 foreilile, i. lOi, ct sc/. — See tit. FoHciui.i': Entuy. 
 D1RKC;T()KS 
 
 of comjianics, fraudulently converting property, ii. 39-5 
 keeping fraudulent accounts, il>. 
 destroying books, <kc., ih. 
 jiulilisliing false statements, ii. 396 
 DISCLOSIKK 
 
 of stolen deeds, wills, itc., ii. 219 
 of frauds l>y bankers, itc, ii. 396 
 DISCONTENT, 
 
 conspiracy to excite, iii. Ill, 117 
 DISMISSAL 
 
 of information for a.ssault, i. 9G9 
 DISOBEDIENCE 
 
 to orders of magistrates, ttc, i. 561, et seg. — See tit. Orders. 
 DISORDERLY HOUSES, 
 
 inns, bawdy-houses, gaming-houses, itc. common nuisances, i. 426 et seq. 
 keeping, i. 427 
 
 manner of proceeding against the keepers, i. 430 
 indictment, evidence, i. 4Ul 
 DISSENTERS, 
 
 disturbance of worship of, i. 401 
 DISSENTING CHAPELS, 
 rioters destroying, i. 368 
 stealing from, etc., ii. 55 
 setting tire to, ii. 900 
 DISSENTING MINISTER, 
 
 assaulting, whilst doing duty, i. 401 
 DISTRESS 
 
 for costs in assaults, i. 968 
 rescuing goods taken under, i. 560 
 DISTURBANCE— See Index, Vol. I. 
 of public worship, i. 398, et seq. 
 
 brawls in church or churchyard, ib. 
 24 ct 25 Vict. c. 100, s. 36, i. 401 
 
 obstructing minister doing duty, ib. 
 1 Will. c*l' Mary, c. 18, ib. 
 
 disturbing dissenting congregations, itc, ib. 
 23 ct 24 Vict. c. 32, i. 403 
 
 disturbances in churches, ib. 
 conspiracies or riots in churches, etc., ib. 
 DIVIDEND WARRANTS, 
 stealing, ii. 223 
 forging, ii. 748 
 making out false, ii. 750 
 DIVISIBLE AVERMENTS, 
 
 instances of, iii. 395 
 DOCK, 
 
 stealing goods from, ii. 307 
 
 setting" tire to buildings belonging to, ii. 901
 
 Index. 739 
 
 DOCUMENTS, 
 
 description of, in indictments under Larceny Act, i, 23 
 in otlier cases, i. 24 
 DOCUMENT OF TITLE, 
 to goods, what, ii. 222 
 to lands, wliat, ii. 220 
 stealing, ii. 232 
 DOCUMENTARY EVIDENCE ACT, 18G8, iii. 409 
 forging certificates, under, ii. 746 
 
 proof of orders of Government departments, (tc, iii. 408 
 DOG, 
 
 keeping mnnuzzled, i. 438 
 stealing, ii. 295 
 possession of stolen dog, ih. 
 taking money to restore, ib. 
 maiming or killing, ii. 927 
 DREDGING 
 
 for oysters, ii. 304 
 DRIVING, FURIOUS, 
 
 injiuy by, i. 986 
 DROWN, 
 
 attempt to, i. 913 • 
 
 DROWNING, 
 
 mines, ii. 945 
 DRUNKENNESS, 
 
 when it may be taken into consideration, i. 114 
 ■when an excuse for a crime, ic. and when not, i. 115, et sea. 
 DUEL, 
 
 when an aftray, i. 396 
 w^hen murder, i. 695, et seq. 
 
 challenging to fight, i. 396. — See tit. Challenging. 
 shooting in, i. 942 
 DWELLING-HOUSE, 
 
 stealing in, any person therein being put in fear, ii. 61 
 
 no building to be deemed part of, luiless there be a communication 
 
 either immediate or by a covered i)assage, ib. 
 the putting in fear, ii. 62 
 menaces, ib. 
 the indictment, ii. 63 
 
 principals in second degree and accessories, ii. 61 
 stealing in, to the value of HI. or more, ii. 64 
 what shall l)e deemed part of, ib. 
 
 property under the protection of the house, ii. 65, ft seq. 
 stealing to the amount mentioned in the statute at ouf time, ii. fi7 
 the indictment must state the name of the owner of the house cor- 
 rectly, ii. 67 
 value, ii. 68 
 
 any one of several persons may be found guilty upon indictment 
 charging joint oftcncc, ///. 
 but not separately of separate parts of the cliargc, il>. 
 persons may be found guilty of, on an indictment for robbery in a 
 
 house or l)urglary, ii. 69 
 principals in second degree and accessories, ii. 64 
 what buildings are to be deemed parcel of, ii. 70, rt seq. 
 
 centre biiilding used fen- the ])ur])oscs of tnulo, but having no conirau- 
 
 nicatidu with dwelling-hnuse, ii. 71 
 factory and dwelling.house with internal communication, itc, ii. 72 
 outhouse held under distinct title, ii. 73 
 
 3 R 2
 
 740 Titdex. 
 
 r)WKLLiN(;-H()rsi':— r6^/////?/«/. 
 
 oiitwiird foncc of curtilago not opening into a l)iiililiiig, ii. 7;J 
 DVINM; Di'lCLAItATIONS, 
 
 I'viiluiico ol', in iioniicido only, iii. '.\'>\, 358 
 
 jiiiiu'iple on which they iiro udniitted, ih. 
 
 docoiiscd nnist hu conwcions of ii])])roiichii)g dciitli, ih. 
 
 intiTVul hctwoon docianition and duatii, iii. 3.0() 
 
 liny hope of recovery cxchides, iii. ."{^r), ;jr)7, et ni'ij. 
 
 (piostion for the jndge whether dechiration adini.sHible, iii. 3.58 
 
 dechiration of one of two persons ilying from same act, iii. SH'J 
 
 only evidence of facts, ih. 
 
 of an accomplice, ih. 
 
 declaration in writing, iii. 3G0 
 
 wiien taken on oath, ih. 
 
 as to mode of eliciting statements, ih. 
 
 in favour of prisoner, iii. 3(Jl 
 
 prisoner may show state of mind of deceased, ih. 
 
 by a child, ih. 
 
 ell'ect of, ih. 
 
 E. 
 
 EAST INDIES, 
 
 extortion in, kc, i. 30.5 
 
 offender prosecuted under the 24 Geo. 3, indictment, i. 301 
 
 forgery in respect of stock of, ii. 748 
 
 of bond, debenture, &c., ii. 768 
 
 stock certificates and coupons, ii. 769 
 
 warrant a valuable security, ii. 223 
 EAVESDROPPER, 
 
 how indictable and punishable, i. 438 
 ECCLESIASTICAL COURTS, 
 
 proof of proceedings in, iii. 418 
 ELECTION, 
 
 bribery at, i. 319, et seg. — See tit. Bribery. 
 
 chief officers of corporations absenting themselves from, i. 301 
 
 perjiuy at, iii. 105, 111 
 
 election writs, 
 
 of neglecting or delaying to deliver, 1. 336 
 when prosecutor put to elect in respect of which of several fek nies he will 
 proceed, iii. 36'J, et neq. 
 ELECTRIC TELEGRAPHS, 
 injuries to, i. 991, et seq. 
 EMBEZZLEMENT.— See Index, Vol. IL 
 
 Fresent enactments as to, hij clerks and servants, and decisions on same, ii. 332 
 
 who is a clerk or servant, ii. 333 
 
 ■where money not received on account of master, ii. 338 
 
 illegal friendly society, ib. 
 
 three acts of embezzlement may be charged in one indictment, ib. 
 
 description of nu>neys in indictment, ih. 
 
 evidence, ii. 339 
 
 where oti'cnce tui'ns out to be larceny, ii. 340 
 
 indictment, describing collectors of poor rates, <kc., in, ii. "341 
 
 by partners or joint owners, ii. 342 
 
 ]>riucipals in second degree, accessoi'ies, ih. 
 
 conviction of an attempt, ib. 
 Decisions on repealed statutes, as to meaning of clerk or servant. 
 Decisio7is on repealed statutes as to receipt by clerk or servant.
 
 Index. 741 
 
 EMBEZZLEMENT— co?i<mwefZ. 
 
 Decisions on repealed statutes as to tvhat amounted to an embezzlement 
 Decisions on repealed statutes as to indictment, trial, d-c. 
 hy bankers, br-okers, factors, and other agents, ii. 390 
 2:>re8ent euactmeuts, id. 
 converting securities intrusted to them with a written direction, 
 
 ii. 391 
 goods, (fee, intrusted for safe custody, t'A. 
 not to aftect mortgagees or trustees, ib. 
 bankers selling property intrusted to tliera, ib. 
 
 persons under powers of attorney fraudulently selling property, ii. 392 
 factors pledging for their own use goods, etc., intrusted to them, 
 
 ii, 393 
 definitions, ib. 
 
 trustees fi-audulently disposing of property, ii. 391 
 definition of trustee, ii. 395 
 
 directors of companies fraudulently disposing of property, ib. 
 keeping fraudulent accounts, ib. 
 wilfully destroying books, ib. 
 publishing fraudulent statements, ii. 396 
 disclosures under a compulsory proceeding, ib. 
 certain misdemeanors not triable at sessions, ii. 397 
 off'ences by part owners of property, ib, 
 enactments relating to railway companies, ib. 
 oflicers of savings-banks not paying over deposits, ii. 398 
 cases on repealed statutes, ib. 
 by trustee of a savings-bunk, ii. 400 
 by poor persons in ivorkhouses, dx., ii. 4:02 
 of warehoused goods, ib. 
 
 by a surveyor of the highioays of materials, dc, ib. 
 by officers and servants of the Bank of England and Ireland, ii. 401 , 
 what was, within 15 Geo. 2, c. 13, s. 12, ib., et seq. 
 embezzling exchequer bills, ii. 405 
 of public monies by public officers, ii. 404, 40G 
 of public monies by tlie police, ii. 404, 407 
 
 indictment need not allege the embezzlement during the service, 
 
 ii. 409 
 evidence of acting as officer, ib. 
 general deficiency in accounts, ib. 
 evidence of receiving by virtue of employment, ii. 410 
 by persons in the post-office, ii. 411, et seif. — See tit. Po.si-Office. 
 of naval and military stores, ii. 494. — See tit. Stokks. 
 by bankrupts, ii. 440, et seq. — See tit. B.vnkkltt. 
 EMBRACERY, 
 
 what it consists in, i. 360 
 corrui)ting or influencing jui'ors, ib. 
 bow far justifiable, ib. 
 ])unishment, ib., i. 361 
 ENCLOSURE ACT, 
 
 private roads set out under, i. 490 
 ENEMIES, 
 
 of the King, adhering to, i. 259 
 ])iratical acts done under conunission of, i. 253 
 ENGINES, 
 
 riotously destroying steam-engines, or engines for working, «kc., mines, 
 
 i. 368 
 destroying, ifec, in mines, ii. 946 
 used in mauufactui-mg goods, ii. 949
 
 742 Indt'X. 
 
 ENGINES— fo»//»»r,/. 
 
 in aj^riciilturo, ii. U-Vl 
 oilier onu'mcH, lb. 
 ENGUAV1N(; TLATKS 
 
 fur oxcho(HiL'r hills, IioikIh, itc , of Bunks of EuglunJ und Ircluin], ii. 7H8 
 other hunks, ii. I'^T'J 
 
 to luako numhers or devices of uotcs, ii. 7d8 
 foreign notes, ii. 879 
 EQUITY, 
 
 proceedings in, stealing, ii. 221 
 forging, ii. 742 
 jn-oecedings in, how proved, iii. 417 
 ESCAPE. — Sec Index, Vol. I. ; and see ib., tit. Prison Breaking and Rescue. 
 definition of, i. r)G7 
 by the party liiinsclf, ib. 
 suffered by officers, i. 5G8, et seq. 
 
 must be after an actual and justifiable an-est, and coutiuuing impri- 
 sonment for a criminal matter, ib. 
 voluntai-y, i. 5G9 
 negligent, i. 570 
 proceedings for, by indictment, presentment, or summarily, i. 572 
 indictment and trial, i. 573, 574 
 evidence, i. 574 
 punishment, ib. 
 actively aiding escapes, i. 582, et seq. — See tit. Rescue. 
 statutes concerning, i. 585, et seq. 
 
 rescuing murderers and bodies of murderers, i. 585 
 rescue of convicts from certain prisons, i. 590 
 aiding in escaping, or conveying any mask or any other thing 
 into any prison, felony, i. 591 
 an escape does not, in notion of law, imply any degree of force or a 
 breach of the peace, i. 746 
 ESTRAY, 
 
 ownership, how laid, ii. 255 
 EVIDENCE, 
 
 Act amending law of, on criminal trials, iii. 676 
 
 rules of evidence same in criminal as civil cases, iii. 318 
 
 bill of exceptions to, ib. 
 
 case reserved, ib. 
 
 new trial, when it can be obtained, iii. 319 
 
 all the defendants must be present in court when a motion for a new 
 trial is made on behalf of any of tliem, ib. 
 of the competency of witnesses, iii. Oil, et seq. — See tit. Witness. 
 of privileged communications, iii. 502, et seq. — See tit. Privileged Com- 
 munications. 
 of the examination of witnesses, iii. 557, ei seq. — See tit. Witness. 
 how the credit of witnesses may be impeached, iii. 572, et seq. — See tit. 
 
 Witness. 
 how many witnesses are necessary, iii. 594, et seq — See tit. Witness. 
 how the attendance of witnesses is to be compelled, iii. 595, et seq. — See 
 
 tit. Witness. 
 confessions and admissions, iii. 440, et seq. — See tit. Confessions. 
 statements of accused before magistrates, iii. 499, et seq. — See Statements 
 
 OF Accused. 
 depositions, iii. 510, et seq. — See tit. Depositions. 
 of what nature evidence must be, iii. 318, f^ seq. 
 
 presuwptiie o?- circumstaiitial evidence, iii. 320, et seq, 
 instances of presumptions, iii. 321, et seq.
 
 Index. 743 
 
 EVIDENCE— co?2^Miwe(Z. 
 
 from good character, iii. 323 
 from conduct, ib. 
 from suppression of evidence, ih. 
 from falsification of evidence, ib. 
 of continuance of state of things, iii. 324 
 of hfe and death, ih. 
 of partnership, ib. 
 of continuance in office, ib. 
 of former and subsequent state, iii. 325 
 as to opinions and state of mind, ib. 
 presumptions of law, ib. 
 malice, ib. 
 
 probable consequence of an injurious act, ib. 
 with respect to age, iii. 3 2 (J 
 of innocence, ib. 
 omnia esse rite acta, ib. 
 the best possible evidence must be produced, iii. 327, et seq. 
 the general rule, iii. 327 
 what is primary evidence, iii. 328 
 
 instances of primary evidence, ib. et seq. 
 
 parol evidence not always secondary to written, iii. 
 329 
 instances of what is not the best possible evidence, iii. 330, 
 et seq. 
 what is sufficient ground for the admission of secondary evi- 
 dence, iii. 333, et seq. 
 
 where the primary evidence is lost, ib. 
 
 what is sufficient proof of loss, ib. et seq. 
 where search should be, iii. 336 
 
 what search sufficient, ib. 
 documents abroad, iii. 337 
 
 where the primary evidence is in the possession of the other 
 party, iii. 338 
 
 proof of such possession, ib. 
 of possession of privy, ib. 
 
 instrument once in party's possession, Ijut since 
 parted with, iii. 340 
 notice to produce, ib. 
 its form, ib. 
 
 when and on whom to be served, ih. 
 when not necessary, iii. 342, et sfq. 
 when instrument is in court, iii. 343 
 time to call for production, iii. 345 
 must be produced when culled for or not at 
 
 all, ib. 
 court to decide whether it is the document, ib. 
 consequences of giving, ib. 
 what is good secondary evidence, iii. 310 
 no degrees of secondary evidence, ib. 
 cases where the rule that liest evidence must be produced is relaxed, 
 
 iii. 347, et seq. 
 statement by party of contents of written document, iii. 348 
 fact of tenancy, ib. 
 inscriptions on walls, iii. 349 
 of liearsay eindence, iii. 349, et se(i. 
 
 exceptions to the general rule, iii. 350 
 where words amount to acts, ib.
 
 744 Index. 
 
 EVIDENCE— ro»//n»^7. 
 
 hcansiiy part of 7rs f/fsf^f, iii. 3/50 
 coni])liiiiits of iiijiiries, iii. 'A'>'2 
 of nthltcrj, ih. 
 of rape, ih. 
 tostinioiiy of deceased witness at f(jniicr trial, iii. S'j-i 
 dc])(isitioiis, ill. 
 
 dying dcclaiations, ih. et sec/. — See tit. Dying Declaiiation.s. 
 licai'say of pul)lic rigiits, (fee, iii. .'502 
 
 lioar.say of deceased persons against their own interest, iii. 3G3 
 entries in course of business, ih. 
 the proof of iieijative avei'inents, iii. 365, et seq. 
 
 general rule that he who asserts the affirmative must prove it, ih. 
 
 presumption in favour of innocence drives the prosecutor some- 
 times to ])r()ve the negative, ih. 
 
 but this docs not operate when the affirmative is peculiarly 
 within the knowledge of party charged, iii. 36G, e< seq. 
 evidence to he confined to jmuts in issKe, iii. 3G8 
 must a])ply to the single act charged, ih. 
 acts of prisoner charged in indictment alone can be proved, ib. 
 
 when larceny of goods nut laid in indictment can be proved, 
 
 iii. 3G9 
 acts of others engaged in same design, ib. 
 prosecutor confined to proof of one felony, ib. 
 proving one felony by means of another, iii. 370 
 where the felonies are connected, ib. et seq. 
 several burglaries the same night, iii. 371 
 several felonies pai-ts of the same transaction, iii. 372, et seq. 
 several larcenies from a coal-mine, iii. 373 
 where several felonies are so mixed that they cannot be separated 
 
 without inconvenience, iii. 374 
 where they are the subjects of other indictments, iii. 375 
 as proof of guilty knowledge, iii. 37G, et seq. 
 
 intent, iii. 377 
 of one murder, to show motive for committing another, 
 
 iii. 378 
 of other poisonings, iii. 379 
 
 of other woimds to identify an instrument, iii. 381 
 to show that false entries were intentional, ib. 
 upon trial for arson, iii. 382 
 where all acts parts of same transaction, ib. 
 to explain facts, iii. 382 
 of other felony to rebut an alibi, ib. 
 proof of other acts and declarations of prisoner as evidence for him of 
 his innocence, ih. 
 
 must be connected with the f;\cts proved against him, iii. 383 
 evidence of several transactions when cumulative instances are neces- 
 sary to jn-ove the offence, iii. 384 
 cases as to the relevancy of evidence, ih. et seq. 
 
 articles found in prisoner's house after his apprehension, iii. 385, 
 
 et seq. 
 on indictment against comjiany for not repairing a bridge evi- 
 dence may be given that individuals have repaired it, iii. 387 
 as to prisoner giving evidence of a conspiracy to suborn 
 witnesses against him, iii. 387 
 evidence of character, iii. 388, et seq. — See tit. Character. 
 previous conviction for felony, iii. 41 G 
 wJutt allegations iniist be proved and what viay he rejected, iii. 301, ct seq.
 
 Index. 745 
 
 EVIDENCE— conimuec?. 
 
 doctrine of surplusage, iii. 392 
 
 instances of surplusage, ih. et seq. 
 descriptive allegations cannot be rejected, iii. 392, et seq. 
 conviction pro taiito, iii. 394 
 
 proof of so much of the indictment as constitutes a crime 
 punishable by law, ib. 
 
 provided the offence be a felony in cases of felony, ib. 
 and the indictiiient charge the minor offence, iii. 395 
 instances of divisible averments, ib. et seq. 
 joint offence charged and one alone convicted, iii. 396 
 with what precision the allegations which cannot be rejected must be sup- 
 ported in evidence, iii. 397 
 
 rule that the substance of the issue only need be proved, ib. 
 proof of offence charged, ib. 
 matters of inducement, iii. 398 
 variance, iii. 399 
 
 instances of fatal variances, ih. 
 
 misnomer of party whose existence is essential to the 
 charge, ib. 
 
 idem sonans, iii. 402 
 variance between indictments and written instruments, i. 52 
 amendments of. under the 9 Geo. 4, c. 15, and other statutes. — 
 
 See Index, Vol. I. tit. Amendments. 
 proof of place laid where the offence is not local, iii. 403, et seq. 
 where the offence is local, ib. 
 proof of time laid, iii. 404 
 proof of value, iii. 405 
 videlicet, ib. 
 identity, ib. 
 of the proof and effects of documents, iii. 407, et seq. 
 statutes, ih. 
 
 jom-nals of Houses of Parliament, iii. 408 
 gazette, ib. 
 
 proclamation, iii. 408, 409 
 articles of war, iii. 408 
 Documentary Evidence Act, 1868, iii. 408 
 orders of Privy Council, ib. 
 
 of government departments, ib. 
 of Poor Law Board, ib. 
 under Education Act, ib. 
 of Postmastex'-General, ib. 
 judicial notice to be taken of signature of judges t>f tlic suprcnic 
 
 court, iii. 411 
 law-list evidence, ib. 
 certain ofhcial public documents to be evidence without proof of seal 
 
 or signature, S it 'J Vict. c. 113, iii. 411 
 proof under Extradition Act, iii. 412 
 Building Societies Act, j)roof of certificates and rules, il>. 
 records, iii. 413, et seq. 
 
 previous conviction, iii. 416. — See Pkkviois f'nwH tkin. 
 writ, iii. 417 
 proceedings in courts of equity, iii. ib. et seq. 
 
 ecclesiastical courts, iii. 418 
 proof of will, j)robato, administration, ib. 
 judgments in inferior courts, ib. 
 foreign judgments, iii. 419 
 foreign and colonial acts of state, \\ 6: 15 Vict. c. 90, s. 7, iii. 420
 
 7'U; Index. 
 
 E V 1 DENC E— omtin II, 'd. 
 
 foreign liiWH, iii. IlM 
 
 iriisli jiidi^iiiciit, iii. -l^."') 
 
 Uuciiiiiunts ill (lillureiit piiitu u{ tlic Unitcil Kingdom, ih. 
 
 ill foreign con lit lies, //'. 
 iiKnlo of ascertaining the law in diU'erent parts of tlic Qnccn'n 
 
 tloniinions, ih. 
 conviction before justice of the peace, iii. 424 
 puljlic books, iii. 426 
 
 registers of births, deaths, and marriages, ih. 
 examined and certitied cojiics of documents, iii. 427 
 inspection of records, lb. 
 
 copy of indictment after acquittal, how obtained, ih. 
 inspection of depositions, iii. 428, 429 
 
 copies of depositions to l)e allowed to prisoners, iii. 429, 4.30 
 when coroner's jury have found a verdict of manslaughter, iii. 4-30 
 inspection of depositions, iii. 428, 429 
 ]ml)lic books, iii. 433 
 of the proof of private tlocumeuts, ih. 
 
 attesting witness, when necessary, iii. 434 
 handwriting, how proved, iii. 436 
 comparison of now allowed, iii. 437 
 
 unstamped instrument admissible in all criminal proceedings, iii. 
 438 
 banking books when evidence, iii. 438 
 
 copies of entries in same, ib. 
 proof as to status of bank, iii. 439 
 the court will take judicial notice of the existence of a war, iii. 151 
 in particular cases, 
 
 in cases of offences respecting counterfeit coin, i. 207, 208, 209 
 on indictments respecting coining instruments, i. 221 
 for uttering false money, i. 233 
 
 buying and selling counterfeit coin, i. 134 
 of being feme covert, i. 153 
 in bigamy, iii. 313, et seq. 
 
 on prosecution for a libel, iii. 211, et seq. ; and see tit. Libel. 
 of disorderly houses, i. 432 
 on indictment, »tc. for nuisances to highways, i. 500, ei seq. 
 
 for not repairing bridges, i. 555 
 of former conviction, &c. on indictment for returning from transpor- 
 tation, i. 596, ei seq. 
 in murder, i. 797, et seq. 
 
 on indictment for procuring the miscarriage of women, i. 854 
 in rape, i. 860, et seq. 
 
 on indictment for carnal knowledge of female children, i. 871 
 in abduction of females, i. 887 
 in larceny, ii. 274, et seq. 
 against bankrupts, ii. 446, et seq. 
 in receiving stolen goods, ii. 483, et serp 
 obtaining money by false pretences, ii. 594, et seq. 
 in arson, ii. 923, et seq. 
 in maiming cattle, ii. 929 
 in forgery, ii. 712, et seq. 
 in perjury, iii. 72, et seq. 
 in subornation of perjury, iii. 99. 
 in conspiracy, iii. 133 
 
 on indictment for sending threatening lettei-s, iii. 251 
 forging of, ii. 740, 747
 
 Index. 747 
 
 EWE, 
 
 stealing, cfcc, ii. 287, et seq. 
 
 maliciously killing, ii. 927 
 EXAMINATION. — See Statements of Accused. 
 
 of accused before magistrates, iii. 499 
 
 of witnesses before magistrates, iii. 500, 511 
 
 of witnesses on trial, iii. 557 — See Witness. 
 EXCEPTIONS, 
 
 bill of, not in criminal cases, iii. 318 
 EXCHEQUER, 
 
 forging the hand of Accountant-General of, ii. 792 
 EXCHEQUER BILL, 
 
 stealing, ii. 223 
 
 embezzling by servant of Bank of England or Ireland, ii. 404 
 
 forgery of, ii. 787, et seq. 
 
 of plates to make, ii. 7iS8 
 of exchequer bonds, 753 
 of paper, (tc, ^'6., 788 
 EXCISE, 
 
 forgery in respect to, ii. 783, 785 — See tit. Forgery, 
 
 forging of permits, ii. 783, 784 
 EXCUSABLE HOMICIDE, 
 
 what it is, i. 843 
 EXECUTION 
 
 of a judgment against a convict, i. lOG 
 
 staying in cases of conviction of infants, i. 113 
 
 of murderers, i. 807 
 
 murder by ofticers in execution of criminals, i. 772 
 EXPENSES OF PROSECUTIONS.— See Costs. 
 
 EXPLOSIVE substancp:, 
 
 causing bodily injury by, i. 953 
 
 exploding witli intent to do bodily harm, ih. 
 
 sending with like intent, ib. 
 
 placing near buildings, &c., i. 954 
 
 manufacturing, &c., ib. 
 
 search for, and seizure, ib. 
 
 destroying house by, any person being therein, ii. 904 
 
 attempting to destroy house by, ib. 
 
 having in possession, etc., ii. 894 
 
 seizure and search for, ib. 
 EXPOSING 
 
 children, i. 19G, 947 
 EXTORTION 
 
 by public olhccrs, i. 303, et seq. 
 
 indictment, trial, and punishment, i. 300 
 EXTRADITION ACT, 
 
 what crime party surrendered cannot bo tried for, i. 49 
 
 proof under, iii. 412 
 
 F. 
 
 FACTOR, 
 
 embezzlement by, ii. 390 
 
 pledging for his own use goods intrusted to him, ii. 393 
 FALSE CHARGES, 
 
 conspiracy to make, iii. 1 10 
 F ALS E PE RSON AT ION, 
 
 olVeucc at common law, ii, 8SG
 
 748 Index. 
 
 FALSE PKIISONATION— cow</«Met/. 
 
 by Ktiitutc's, ii. 887 
 
 to deprive person of real Cbtato, &c., ///. 
 
 persouatiiij^ luid asHutning the name of soldiers and sailorH to 
 
 obtain prize-money, pay, tfec, ih. HH8 
 of tlt'ceused jjersons within tlic statute, ih. 
 must be by the correct name of the j)arty personated, ii. 889 
 aiders and abettors, ih. 
 owner of public stock, ii. 718, 7r)l, 752 
 owners of shares in companies, ii. 8'JU 
 voters at elections, ii., ib. 
 county voters Registration Act, ii. ih. 
 personating bail, ttc, ii., ih. 
 FALSE I'llETENCKS.— See Indkx, Vol. IL 
 present enactments as to, ii. 524 
 
 obtaining money, «fec., under false pretences a misdemeanor, ih. 
 no acquittal because the offence a larceny, ih. 
 form of indictment and evidence, ii. 525 
 
 where money, etc., paid to person not making the false pretence, ih. 
 inducing persons by fraud to execute deeds, ih. 
 what a cJuittel, d;c.,ivit/iin the statute, ii. 52G 
 what are false pretences, ii. 527 
 pretence mat/ he by act or conduct, ii. 548 
 cohere a contract has into-vened, ii. 553 
 
 effect of intervention of contract, ih, 
 pretence that a parti/ vill do an act is not within the statute, ii. 567 
 money, dr., 7mist be obtained by means of the false pretence, ii. 572 
 as to the intent to defraud, 
 venue, ii, 581 
 
 form of indictment — trial evidence, ii. 584 
 evidence variance, ii. 594, ei seq. 
 amendment at trial, i. 60 
 not necessary to prove all pretences, ii. 598 
 restitution, ii. 602 ; i. 83 n. 
 
 where goods obtained by an instrument which it was a felony to 
 forge, ih. 
 attempts to commit offence, ii. 603 
 FALSIFICATION OF ACCOTTNTS ACT, ii. 883 
 
 clerk falsifying books, ii. 884 
 FARM BUILDING, 
 
 rioters destroying, i. 368 
 setting fire to, ii. 901 
 FATHER. — See tit. Parent axd Child. 
 F£LO DE SE, 
 
 accessoiy before, to, triable, i. 179 
 self-mm-der, i. 647. — See tit. Murder. 
 two encouraging each other to, 1. 649 
 FELONY, 
 
 definition of, i. 186 
 
 derivaton of, i. 186, note (6) 
 
 l)unishment for, not punishable by any statute, i. Qb 
 
 forfeiture for, i. 103 
 
 what words in statute create, i. 186 
 
 all felons were entitled to have clergy once, unless ousted by statute, ib. 
 
 if a statute made a new offence felony, the law implies a punishment of 
 
 death as well as forfeiture, ib. 
 when a statute makes an offence felony, which before was only a misde- 
 meanor, an indictment will not lie for a misdemeanor, i. 187, 194
 
 Index. 749 
 
 FELONY — continued. 
 
 he who takes any part in, is a felon according to his share in it, i. 15G 
 he who pi'ocares a felony to be clone is a felon, i. 166 
 misprision of. — See tit. Mispiiision. 
 componnding. — See tit. Compounding. 
 authority of officers, &c. to arrest in cases of, i. 707 
 private persons, i. 710, 711 
 of reasonal)le suspicion of, i. 720 
 assault with intent to commit, i. 974 
 killing to prevent, i. 851, et seq. — See tit. Homicide. 
 attempt to commit. — See tit. Attempt. 
 
 persons caught by night committing, detainer of, i. 933; ii. -31, .52, 1023 
 costs in, i. 86 
 
 false certificate of conviction, ii. 740 
 person caught by night, detainer of, ii. 51, 52, 895 
 FEMALES. — See tit. Women, Feme Covert. 
 FEMALE CHILDREN.— See tit. Infant. 
 FEME COVERT, 
 
 how far and from what crimes excused by the coercion of her husband, 
 
 i, 139, et seq. 
 receiving stolen goods jointly with her husband, i. l-ll 
 I'eceipt by husband from wife, i. 144 
 not answerable for her husband's breach of duty, ib. 
 in inferior misdemeanors, i. 145 
 when an accessory to her husband's crime, i. 139 
 
 to another's, ib. 
 when responsible as much as a feme sole, i. 139, 145 
 coercion of husband, when presumed, i. 146 
 not guilty of felony in stealing her luisband's goods, i. 148 
 when a stranger can commit larceny by the delivery of husband's goods by 
 
 wife, ih. 
 joint indictment against both for receiving stolen goods, i. 141 
 by taking wife by force with husl)and's goods on her, i. 148 
 not accessory for receiving her husband, i. 153 
 an indictment for any offence, not bad against husband and wife as such, 
 
 i. 153 
 evidence of being wife, ib. 
 
 husband may be accessory before the fiict to his wife's crimes, i. 1 IG 
 wife princi[)al and husband accessory in uttering forged notes, ib. 
 rules deducible from the cases, i. 147, note (e) 
 
 incompetency of wife as a witness for or against her husband, iii. 
 
 620, et seq. 
 when wife a competent witness under the Conspiracy Act, iii. 163 
 FENCES, 
 
 destroying, ii. 944 
 stealing, &c., ii. 215 
 FERN, 
 
 setting fire to, Avhilst growing, ii. 932 
 to stack of, ib. 
 FERRKTS, 
 
 laiTcny of, ii. 238 
 FERRYMAN, 
 
 extortion by, in taking tolls, i. ■'»" l 
 FICTITIOUS PLAINTIFF.— See BAimATUY. 
 FILLY, 
 
 stealing, ii. 287 
 maliciously wounding, ii. 927 
 FINES AND SUUI:TII<;S.— See Suri-.ty.
 
 750 Index. 
 
 FIKKWOUKS. 
 
 stiitiito rc'liitiii;^ to, i. 123 
 FISH, 
 
 larcoiiy of, ii. 'l',V.\ 
 
 uiil;i\vi'iilly tiikiiif,' or jitlomjjtinf; to take, ii. 303 
 olVciit'O at common law, ih. 
 ortbiicos by statutes, il>. 
 oysters, ii. 304 
 FISHPOND, itc. 
 
 flcstroyingf dam of, ii. 041 
 putting noxious materials into, ih. 
 FIXTURES, 
 
 larceny of, ii. 200, ct .seq. 
 FLOG I)G ATI-; 
 
 destroying, etc. of rivers, etc., ii. 010 
 of pondt!!, etc., ii. 041 
 FOLD, 
 
 setting fire to, ii. 001 
 FOOD, 
 
 unwholesome, i. '1(j$> 
 
 indictable to mix noxious ingredients with human food, i. 2G0 
 master liable for the sale of unwholesome food by his servants, i. 2G8 
 FOOT-?..\LL, 
 
 kicking about riotously on Shrove Tuesday, indictment for, i. 305, note (A) 
 FOOTWAY.— See tit. Highway. 
 FORCE, 
 
 in asserting a title, when justifiable, i. 404 
 FORCIBLE DETAINER.— See tit. Forcible Entoy. 
 
 acts which do or do not amount to, i. 410 
 FORCIBLE ENTRY.— See Ixde.k, Vol. L 
 how committed, i. 404 
 at common law, ih. 
 statutes, i. 404, et seq. 
 acts which will amount to, i. 409 
 forcible detainer, what, i. 410 
 remedies, i. 411 
 
 indictment, i. 411, 414 
 
 for entry and detainer, grand jury cannot find a true bill for one 
 
 only, ib. 
 award of restitution, i. 414, 415, 416, 417 
 tenant of land a competent witness, i. 414 
 •where conviction quashed, the Court of Queen's Bench are bound to award 
 
 re-restitution, i. 41 G 
 by an infant, i. 100 
 FOREIGN DOCUMENTS, 
 
 forgery of, ii. 734 
 FOREIGN JUDGMENT, 
 
 proof of, iii. 410, et seq. 
 FOREIGN LAW, 
 
 proof of, iii. 421, et s^q. 
 mode of ascertaining, iii. 421 
 costs of apprehension abroad, i. 95 
 FOREIGN STATES, 
 
 serving or procuring othei-s to serve, i. 241, et seq. 
 
 without consent of the King, a misdemeanor at common law, i. 241 
 
 construction of the repealed statute, i. 241, 242 
 Foreign Enlistment Act, i. 243, et seq.
 
 Index. 751 
 
 FOREIGN STATES-conimwefA 
 
 equipping, &c. vessels, i. 245 
 
 apprehension and trial of offenders, where, i. 247 
 Mutiny Act, persuading soldiers to desert, &c., i. 250 
 
 disobedience to the King's command to return, stay at home, 
 &c., ib. 
 FORESTALLING, 
 
 statutes, &c. on the subject repealed, i. 349 
 FORFEITURE, 
 
 forfeiture for felony abolished, i. 103 
 disqualification for offices, ib. 
 condemnation in costs, i. 104 
 
 compensation to person defrauded or injured, i. 105 
 disability of convict, ib. 
 administration of propei'ty of convict, i. lOG 
 disqualification from selling spirits, i. 107 
 suffering punishment — pardon, ib. 
 FORGERY.— See Index to Vol. IL 
 Consolidation Act, as to, iii. 6G7 
 
 all are principals in, at common law ; forgery being only considered a 
 misdemeanor, i. 167 
 
 not so under statutes, ib. 
 
 all who execute any part of a forged instrument principals, though 
 
 absent when it is completed, ib. 
 and though ignorant of the persons by whom the other parts arc 
 executed, i. 168 
 accessories in forgery, i. 167, 168 
 at common law, 
 
 definition of the offence, (fee, ii. 618 
 of the viaking or alteration of a xvritlen instrument nccessari/ to constilutf, 
 ii. 619, et seq. 
 
 as to the validity of the thing forged, if genuine, ii. 653 
 of the ivritten iiistraments in respect of lohich it uiai/ be committed, ii. 670, 
 
 et seq, 
 of the fraud and deceit to the prejudice of another's rijht, ii. 678 
 of 2}rin(npals and accessories, ii. 68U 
 indictment, ii. 695, et seq. 
 plea, 
 
 autrefois acquit, ii. 709 
 trial, ii. 814 
 of the evidence, ii. 712, et seq. 
 
 of guilty knowledge, ii. 728 
 punishment for, ii. 733 
 
 of forging, (Sec, records, judicial process, awl evidence, ii. 740 
 relating to the public funds, and stocks of public aunpanies, ii. 748, e( seq. 
 of the securities of the Bank of EngUmd, Jr<l<inil, and ot/icr Ixiiiks, ii. 758, 
 
 et seq. 
 East India securities, debenturts, <£v., ii. 768 
 of forging arid transposing stamps, ii. 878, et seq. 
 of official papers, securiti*^s, and docutwuts, ii. 783, ct seq. 
 of private papers, securities, and documents, ii. 819 
 present enactments, as to, ib. 
 cases decided on ijresent enactments, ii. 822 
 on repealed statutes, ii. 844 
 
 on the repealed statutes as to dcod.'^, bilLs, and notes, ii. 825 
 on repealed statutes as to undertaking for the payment of 
 
 money, ii. 831 
 on repealed statutes as to receipts, i'. 832, ef s'q.
 
 752 Index. 
 
 FOUGEUY— ro»^'/*M^r/. 
 
 cascH on rcpoalod statutCB as to wnrrauts^ or ordrm for payment of 
 
 money, Ac, ii. HoO, c/ ^pfj. 
 as to rcfuicsts for tlic delivery of goods, 
 ii. 872 
 Prrsiiif /Ciifichmiits us to liaving moulds for making i)aper of bankers, 
 
 ctc.,ii. H7!) 
 
 demanding ])roperty on forged instruments, ii. 885 
 Falsification of Accounts Act, 1875, ii. 883 
 clerk falsifying books, ii. 884 
 F0RTUNE-TELL1N(J, 
 
 cheats by, ii. GOO 
 P^ORUM DOMKSTICUM, 
 
 death by correction in, i. 773, 884 
 FRAME, 
 
 destroying, etc., ii. 949 
 FRAUD.— See tit. CnK.vT. 
 FRAUDULENT CONVEYANCE, 
 
 cheat liy, ii. G07 
 FREEHOLD, 
 
 larceny of things, part of the freehold, ii. 209, et seg. 
 FREEMASONS, 
 
 assembly of, not luilawful, i. 378, 383 
 FRIENDLY SOCIETY, 
 
 stating property of, in indictment, i. 31 
 FRUIT, 
 
 stealing, ii. 21 G 
 
 destroying, etc., ii. 937 
 FUNDS, 
 
 forgery, »tc. relating to, ii. 748, et seq. — See tit. Forgery. 
 
 conspiracy to raise, by false rumours, iii. 115 
 FURIOUS DRIVING, 
 
 punishment, i. 986 
 
 G. 
 
 GALLERY, 
 
 injuring works of art in, ii. 965 
 GAME, 
 
 propei-ty in game at common law, i. G2\, et seq. 
 destroying in the night time, i. 621 
 
 9 Geo. 4, c. 69, s. 1, any person unlawfully destroying game or rabbits in 
 the night, in any land, open or enclosed, ib. 
 any person unlawfully entering or being in any laud by night for such 
 pm-pose, i. 622 
 second offence, ih. 
 third offence a misdemeanor, ih. 
 
 sec. 2, any person found on any land committing any such 
 offence may be apprehended by the owner, gamekeeper, 
 &c., lb. 
 
 such oflender assaulting any owner, ttc. guilty of a 
 misdemeanor, i. 623 
 sec. 4, prosecutions for oflences pmiishable on summary 
 conviction to be commenced within six months, ib. 
 other prosecutions within twelve mouths, ib. 
 sec. 8, convictions made evidence, ib.
 
 Index. 
 
 753 
 
 GAME — continued. 
 9 Geo. 4, c. 69- 
 
 -continued. 
 
 sec. 9, three or more together entering or being in land 
 by night, for the purpo.se of taking game or rabbits, 
 being armed with offensive weapons, i. (j'l?>. 
 what sJiall be considered night, i. (52 i, (J2'i 
 what shall 1)C deemed game, i. G2-1: 
 7 & 8 Vict. c. 39, extending the previous Act to high- 
 ways, i. f)24 
 
 24 ife 25 Vict. c. 9G, s. 17, taking hares and rabbits in 
 Avarrens, i. G25 
 
 25 & 26 Vict c. Ill, search of pei-sons found with game, 
 (fee, i. 625 
 
 what is the oommencemeut of a prosecution, L 026 
 
 tame game, i. 627 
 
 indictment on 9 Geo. 4, c. 69, s. 1, ib. 
 
 as to the authority to apprehend poachers, i. 628 
 
 under 14 k 15 Vict. c. 19, s. 11, i. 629 
 
 as to the form of au indictment for assaulting a 
 
 gamekeeiier, i. 6.30 
 as to being found on the land, ib. 
 assault whilst keepers ai'e attem[)tiug to apprehend, 
 
 i. 631 
 authority of keeper to apprehend, ib. 
 of the being armed, one being armed sufficient, ib. 
 not if the others are ignorant that he is so, ib, 
 a constructive arming sufficient, ib, 
 what are offensive weapons, i. 632 
 what sufficient evidence of being on the land, i. 63.3 
 whether an entry by une in the presence of 
 
 two others is sufficient, i. 634, et se(/. 
 what is an entry within the statute, i. 630 
 must be shown to be associated, i. 637 
 of the intent to kill game in the close laid hi tiic 
 
 indictment, ib 
 the indictment, i. 638, 639 
 
 joinder of counts, i. 640 
 not necessary to di>j)rove consent of owner, ib. 
 taking hares or raliliits in a wair.eu, ii 301 
 GAMING, 
 
 gaming-house a nuisance, i. 428, 608, et sfq. 
 
 cock-pit considered s<>, and indictal)le, i. 428 
 proceedings against keepers of, i. 4.30 
 playing at cards, <fec. as a recreation, and for moderate sums, no oflViico, 
 i. 608 
 
 but excessive gaming is, ib. 
 former Acts repealed, ib. 
 clieating at play punishable, ib. 
 wagers not recoverable, i. 609 
 cases, ib. et se'/. 
 GAMING-HOUSE, 
 
 common indictment for kec])ing, i. 430 
 manner of proceeding on, i. 432 
 GAOLER, 
 
 oppression, ttc. by, i. 2It8 
 
 forcing persons to give evidence, ib. 
 suffering his prisoner to escape, i. 29'.', 5<0 
 extortion by, i. 303 
 
 VOL. III. '* ^
 
 7.") I Index. 
 
 (lAOlil'lIl — cnut'uninl. 
 
 piittiiif? prisoiieiH in irons, i. fiTO, note (w) 
 murder hy (liircs.s of imprisonment by, i. 771 
 conlinin<j; witli a person ill of sniall-jiox, ih. 
 wlion guilty of nuinsliUiglitcr, lb. 
 anil iussi.stiints, killing prisoner, when justifiiihlo, ih. 
 CAKDKN, 
 
 destrnying vegetables, ite. in, ii. 037 
 
 stealing llowers, vegetables, kc. in, ii. 21 G 
 GAS, 
 
 larceny of, ii. 127 
 
 breacii of contract by persons cmplo^'ed in stipply of, iii. \C>\ 
 GATJ<:, 
 
 stealing, ii. 215 
 
 destroying, ii. 9 It 
 GAZETTE, 
 
 proof and effect in evidence, iii. 108 
 GELDING, 
 
 stealing, etc., ii. 287 
 
 maliciously killing, ii. 927 
 GIRL. — Sec tit. AuDucTiox. 
 
 carnally knowing, i. 871 
 
 procuring defilement of, i. 877 
 GLASS, 
 
 fi.xed to building, stealing, ii. 210 
 
 painted, injuring, ii. 9G5 
 GLEANING, 
 
 taking corn by, whethci" felonious, ii. 203 
 GOODS, 
 
 document of title to, stealing, ii. 222 
 
 setting fire to, in building, ii. 903 
 
 injuring, in process of manufacture, ii. 943, ei scq. 
 GORSE, 
 
 setting fire to, whilst growing, ii. 932 
 stack of, ib. 
 GRAIN, 
 
 setting fire to crop of, ib. 
 stack of, ib. 
 GRANARY, 
 
 setting fire to, ii. 901 
 GRAND JURY, 
 
 cannot find a true bill for part and false for part, where, i. 1 1 3 
 
 evidence of what took place before tliem, iii. oob 
 GREAT SEAL, 
 
 fors:ing, ii. 74:0 
 GREENHOUSE, 
 
 stealing plants in, ii. 210 
 
 destroving plants in, ii. 937 
 GUARDIANS OF UNIONS, 
 
 to prosecute, when, i, 917 
 GUILTY INTENT, 
 
 proof of, by acts not charged in the indictment, iii. 377, d se^i. 
 GUILTY KN(3WLEDGE.— See Evidence. 
 
 evidence of, i. 227 
 
 proof of, by showing acts of prisoner not charged in indictment, ii. 728 ; 
 iii. 37G 
 
 where forged document uttered, ii. 728 
 
 receiver of stolen goods, iii. 485
 
 Index. 
 
 GUNrOWDER 
 
 mills, when a nuisance, i. 421 
 causing bodily injury by, i. 953 
 causing to explode with intent, etc., ih. 
 placing near building with intent, etc., i. 954 
 making with intent to commit felonies, ih. 
 
 search for, ih. 
 destroying house with, any one being therein, ii. 904 
 attempting to destroy, ii. 904 
 placing, near a ship, with intent, etc., ii. 959 
 possession of, with intent, ttc , ii. 894 
 
 FT. 
 
 HABEAS CORPUS AD TESTIFICANDUM, 
 
 how ol)tained, iii. 598 
 HACKNEY-COACHMAN, 
 
 felony by, as to goods left in his coach, itc, ii. 186, el seij. 
 HANDWRITING, 
 
 comparison of, now allowable, iii. 4.37 
 proof of, iii. 436 
 
 writer himself need not be called, ii. 712 
 HARBOURING THIEVES, 
 
 penalty for, iii. 683 
 HARD LABOUR, 78 
 
 under Consolidation Acts, i. 80 
 HARE, 
 
 killing, not an indictable oflcncc, i. 195 
 taking or killing in a warren, ii. 30l 
 HAVEN, 
 
 stealing from vessel in, ii. 307 
 HAY, 
 
 setting fire to crop of, ii. 932 
 stack of, ih. 
 HEALTH, 
 
 public, offences affecting, i. 266 
 HEARSAY, 
 
 when receivable, iii. 349, et seq. 
 HEATH, 
 
 setting fire to, whilst growing, ii. 932 
 stack of, ih. 
 HIDES, 
 
 burying or destroying, ii. 293 
 HIGH SEAS, 
 
 offences on. — See tit. Vknuk. See OFri;Nci..s at. 
 murder on, i. 10, 14, 791 
 
 wound on sea and death on slioro, or vice vcrsil, i. 790 
 HIGH TREASON, 
 
 how many witnesses necessary in, iii. 594 
 HIGHWAY.— Sec Inpkx, V«»1. I. — See also tit. Road. 
 amendment of indictment fi>r nuisance to, i. 59 
 what is a ])ul)Hc liighway, i. 4 U 
 liigJiVHti/a icidcin'J, c/i'i>i(/f(l, <fr., jV'., i. 457, f( soj. 
 niad continued under inclosurc award, i. 466, f< so/, 
 nuisances to hi/ ohstn(clioii, i. 469, r( s<<i. 
 narrowing highways, i, 474 
 
 / .).) 
 
 3 c 2
 
 7.")f! Ill I /ex. 
 
 \\\['.\\\V\Y—rovtinnr,/. 
 
 iiH to lircndtli (if toikIh, i, 171 
 
 no (lefc'iice t liat an alteration is more useful f<jr other [)uq)Oscs of the 
 
 roail, i. 475 
 unless Hutiinrizecl l»y a statute, ih. 
 Kailway Cluusfs (Jonsolidaticjn Act, i. 17'* 
 body corporate indictable, i. 477 
 iiiiisaiicf'S to, III/ iif/t repairing/, ih,, ct seii. 
 
 obligation of the ])ariHii to repair, ib., H ^rf/. 
 of common riglit, ih. 
 
 effect of particular statutes upon, i. 478 
 no agreement can exonerate a paiish, ib. 
 ado])tiou by parish unnecessary, i. 479 
 no highways to be repaired by a parish unless the party dedicating 
 
 make them to the satisfaction of the surveyor, Ac., ib. 
 obligation of subdivisions of a parish to repair, i. 483 
 obligations of individuals to repair, i. 483, ct seq. 
 turnpike acts, i. 488 
 
 3 (Jco. 4, c. 126 (general), ib. 
 
 agreements by trustees of turnpike roads with persons liable to 
 
 repair, ib. 
 repairs where roads have been turned, ib. 
 statutes relating to the rejjair of roads, ib. 
 
 do not abrogate the common law provisions, ib. 
 j^arisli not bound to repair fences or ditches, i. 489 
 ' to and from ' exchule the place, ib. 
 inclosurc commissioners cannot throw the repair of private roads on the 
 
 parish, i. 490 
 rej)air of road under Metropolis Local iNIanagemeut Act, 18-jJ, i. 490 
 indictment or information for nuisances to, i. 491, et seq. 
 
 mode of proceeding before justices where highway is out of repair, 
 
 ib., et seq. 
 information in the Queen's Bench, i. 493 
 mandamus not granted, ib. 
 indictment, ib. 
 
 defence under general issue or special pica, i. 497, et s''q. 
 evidence, i. 500, e< seq. 
 certiorari, i. 503 
 new trial, grantable, ib. 
 the judgment, i. 504 
 
 levying and aj^plication of fines, i. 505 
 costs, i. 50G, et seq. 
 
 meaning of terms in the Highway Act, i, 510 
 Highway Acts, 18G2, 1864, and Public Health Act, 1875, i. 511 
 HOMICIDE. — See Index, Vol. I, and see ib. tit. Maxslaugiiter, MuRDKrt 
 excusable homicide, i. 843, et seq. 
 justifiable homicide, ib. 
 excusable homicide by misadventure, i. 844 
 excusable Itomicide in self defence, ib. 
 justifiable homicide, i. 848, et seq. 
 felonious ; the felonious intention in, i. 188, note (:) 
 HOP-BIXDS, 
 
 cutting and destroying, ii. 9.')9 
 HOr-OASt, 
 
 setting fire to, ii. 901 
 HORSE, 
 
 stealing, ii, 287 
 
 killing with intent to steal, ii. 2b7
 
 Index. 75 7 
 
 HORSE — continued. 
 
 principals in second degree and accessories, ii. 287 
 description of, ii. 291 
 slaughtering, ii. 2IJ3 
 conspiring to sell unsound, iii. 124 
 maliciously killing, ii. 927 
 HOUSE. — See tit. Dwelling-house. 
 killing in defence of house, i. 847 
 
 explanation of the rule that a man's house is his castle, i. 749, d sc-i. 
 pulling down, by persons riotously assembled, i. 308 
 what is, for the purposes of burglary, ii. 14, et se//. 
 
 housebreaking, ii. 58 
 stealing in, with menaces, ii. 6 1 
 to the value of £5, ii. G4 
 setting fire to, ii. 900 
 
 any person being therein, ib. 
 destroying, etc. with gunpowder, ii. 904 
 tenants injurinir, ii. 92G 
 HOUSEBREAKING, 
 what it is, ii. 58 
 
 breaking and entering a dwelling-house and committing a felony, ih. 
 with intent to commit, &c., ii. 70 
 does not extend to buildings within the curtilage, ii. 56 
 principals in second degree and accessories, ifj. 
 breaking and entering necessary to constitute, ib. 
 
 must be attended with some felony, ii. 59 
 dwelling-house, question as to what shall be deemed, same us iu bur- 
 glai'y, ii. GO 
 being in by night with intent, etc., ii. 51 
 having instruments by night with intent, &.C., i. 192 ; ii. 51 
 HOUSE OF COMMONS, 
 
 publication of proceedings of, iii. 185 
 libels against, iii. 200 
 
 speeches, &c. not to be divulged in evideucc, iii. 550 
 journals, proof and effect of, iii. 408 
 HOUSE OF LORDS, 
 
 libels against, iii. 200 
 journals, proof and eft'cct of, iii. 408 
 HUNTING, 
 
 deer, ii. 207 
 HUSBAND.— See Feme CovRUT. 
 
 incompetency of husband and wife fir and against each other, iii. 020, 
 et seijf. 
 
 I. 
 
 IDEM SONANS, 
 
 instances of, iii. 402 
 IDENTITY, 
 
 proof of, iii. 405, 434 
 IDIOTS, 
 
 how far capable of committing crimes, i. 113, el sr'/.—ScQ tit. C.vrA- 
 
 HI LIT V. 
 
 distinction between, and lunatics, i. 1 li! 
 
 proceedings with resi>cct to, i. 135 
 
 disposal of persons ac(iuittcd on ground of insanity, i. 13G 
 
 found insane on arraignment, «.tc., i. 137 
 
 discharged for want of pro.sccutii>n, iO. 
 incompetent as witnesses, iii. GU
 
 7.") 8 Index. 
 
 ICNonANCE, 
 
 ill wliiit civHCH an cxcuho for tlic coimniHsioii of ii crime, i. 151 
 I.MI'KDINC 
 
 jiorsiiiis siiviiij^ iiis lift' IVmn hlii[»wruck, i. Ul I 
 
 iMruuTiN(; 
 
 coiiiiti'rR'il foiii, i. 1' 1 1 
 IMI'KISONMKNT, 
 
 unhiwful, uinouuts Id an assault, i. \H'A) 
 IN'CAPACIITY TO COMMIT CRIMES.— Sec Cai'aiumty. 
 INXTTINC 
 
 to commit murder, i. 90G 
 INCLOSURE ACTS, 
 
 private roads, set out xuider, i. 4'JO 
 INDECENCY, 
 
 indecent exposure and open lewdness indictable as a nuisance, i. lol 
 INDECENT ASSAULT, 
 
 pimishment, i. 959 
 INDIA, 
 
 warrant, stealing, ii. 2l'3 
 forging, ii. 768 
 
 certificates and coupons, forging, ii. 7G9 
 cxiiniination of witnesses when offence connnitted in, iii. 536 
 INDICTAP.LE OFFENCES, i. 180, el scj.—Hcq tit. MitiL)K.ME.vNuK. 
 felonies, i. 186 
 
 by statute, ib. 
 misdcnieanoi-s, i. 187, et serj. 
 misprisions, i. 187, 188 
 attempts to commit felonies, i. 188 
 
 misdemeanors, i. 189 
 disobedience to an order of council, i. 2G3, 5G1 
 to a statute, i. 188 
 to an order of magistrates, i. 561 
 offences of a public nature, i, 188 
 act done with criminal intention sufficient, i. 190 
 procuring base coin with intent to utter, i. 191 
 having imj^lements of housebreaking, i. 192 
 offences created by statutes, when indictable, i. 193 
 
 not indictable, i. 191 
 cases not indictable cnumei-ated, i. 195 
 abandoning child with intent to burden parish, i. 196 
 nonfeasance and particular wrong not in general indictable, ib. 
 trespasses not in general indictable, i. 197 
 INDICTMENT. Venue in.— See Venue. 
 
 description of documents under the Larceny Act, i. 23 
 
 in other cases, i. 24 
 coin and bank notes, ib. 
 venue in the margin, local description, ib. 
 interpretation of word "indictment," ib. 
 description of property of partners, i. 25 
 counties, i. 26 
 guardians of poor, «tc., i. 27 
 highway trustees, &c., i. 28 
 turnpike trustees, ib. 
 connnissionei-s of sewers, t6 
 joint-stock banks, i. 29 
 friendly societies, i. 31 
 savings bank, i. 33
 
 Index. 759 
 
 INDICTMENT— con<i"7??(«?. 
 
 description of property of loan societies, i, 3-1 
 
 benefit building societies, ih. 
 industrial uud provident societies, Hi. 
 trades unions, i. 35 
 post office, ib. 
 defects in indictments, ib. 
 immaterial defects, ib, 
 time for taking formal objections, i. 30 
 defects cured by verdict, i. 37 
 Pleadings to indictment. — See Pleas. 
 Traverse of indictment. — See Postponemknt of Tkiai,. 
 Amendment of indictment. — See Amendment. 
 indictment for misdemeanor, facts amounting to fcli.uy, i. Gli 
 indictment for full offence, conviction of attempt, ih. 
 Vexatious indictments. — See Vexatious Indictments. 
 against accessories. — See tit. Accessory. 
 for receiving, paying, putting off, itc, counterfeit coin, i. 231, 'i m-i. 
 
 for second offence, i. 227 
 for seducing soldiers, (fee, i. 251 
 for offences against revenue laws, i. 275 
 for taking unlawful oaths, i. 287, 291 
 for neglect of duty by persons iu office, i. 301 
 for extortion, i. 30G 
 for monopoly, i. 309 
 for barratry, i. 362 
 for a riot, &c., i. 387 
 for sending a challenge — venue, i. 397 
 for a forcible entry and detainer, i. -Ill 
 for keeping disorderly houses, i. 431 
 for nuisances in general, i. 440 
 to highways, i. 491, 493 
 
 general issue, or special plea, when necessary, i. 495 
 traverse of obligation to repair, i. 500 
 special jilea by parish, when necessary, i. 197, 198 
 to public bridges, i. 551 
 
 pleadings — special plea, &c., i. 553 
 for disobedience to orders of magistrates, i. 5G3 
 
 must show an order made, ib. 
 for escapes suffered by officers, i. 572 
 for prison-breaking, i. 580 
 for a rescue, i. 583 
 
 for aiding attempts to escape, i. 5^'f^ _ 
 for returning from transportation, i, 597, GO! 
 for gaming, i. G09 
 
 for destroying game in the night, i. 027, 030, 038, ct .<'•-/. 
 for murder, i. 784, e( so/., 795 
 
 descri})tion of party killed, i. 792 
 averment of malice aforethought, i. 790 
 for manslaughter, i, 8 10 
 for rape, i. 80 I 
 
 for carnal knowledge of cliildrcn, i. ^72 
 for sodomy, i. 880 
 
 for forcible abduction of females, i. 8.S7 
 fur wounding with intent to murder, ..^c, i. 912 
 for an assault, i. 900 
 for striking in courts of justice, i. 971 
 for burglary, ii. 43, ct so/.
 
 7(J0 Inder. 
 
 INDICTMKNT— ru/;///(/^.v/. 
 
 oUciico ill Olio cuiinty, triiid in lUKjthcr, ii. IG 
 for rohia-ry, ii. 1 IN, <t siy. 
 for liiivfiiy, ii. 200, el sri/. 
 fur Ktt'iiliii^ from the poiisoii, ii. '2H'j 
 for oniliezzloinciit, ii. XiS, et se(j. 
 *if Ijiuiknipt, ii. 141, et srt/. 
 for receiving stolen goods, ii. 478, ct se^. 
 for ft ciicat, ii. 523 
 
 for obtuining money by false i)ix'teuccs, ii. 58 I, d s<'<i. 
 for forgery, &c., ii. G95, et seq. 
 for ai-son, ii. 1) 1 8, et seq. 
 for maiming cattle, ii. 1)30 
 for perjury, iii. 33, 35, et seq. 
 for conspiracy, iii. 129 
 for sending a threatening letter, iii. 252 
 venue in otlcnccs respecting the post-office, ii. 413 
 
 iu au iudictineut for receiving stolen goods, ii. 4G5 
 
 for forgery, ii. 735 
 in indictment for malicious injuries, ii. 805 
 copy of, how obtained, iii. 427 
 
 sufficient to prove so much of indictment as constitutes a crime, iii. 
 304 
 INDORSEMENT, 
 
 forgery of, ii. Slf) 
 cases as to, ii. 827 
 INDUCEMENT, 
 
 matter of, when and how to be proved, iii. 398 
 INDUSTRIAL SOCIETIES, 
 
 statutes as to, iii. 703 
 INFANT, 
 
 committing misdemeanors, i. 108. — See tit. Capabilitv, 
 capital crimes, i. 109 
 murder, i. 110 
 rape, ih. 
 new statutoiy felonies, i. 1 1 2 
 treasons, ib. 
 
 bow far statutes extend to cases of infants, ilj. 
 a principal in second degree, when, i. 110 
 of delaying execution when an infant is convicted, i. 113 
 age of consent to man-iage, i. 112 
 distinction of ages in the civil law, i. 109, note (o) 
 
 not excused from the commission of a crime by the coei-cion of a parent, 
 i. 139 J 1 ' 
 
 not punishable as rioters, if under the age of discretion, i. 372 
 
 neglect of, who indictable for, i. 949 
 
 murder of, i. G45, et seq. 
 
 wound before birth, death after, ib. 
 
 murder of infants on their birth, i. G4G 
 
 child must be wholly born, ib. 
 
 breathing not sufficient, ib. 
 
 breathing not necessary, i. G47 
 
 independent circulation, ib. 
 
 while connected by the umbilical cord, ifx 
 
 by exposure, i. G50 
 murder by rape of, i. 673 
 destroying infants in the womb, i. 853 
 
 common law ofleuce, ib.
 
 Index. 76 1 
 
 INFANT— coH^m»ed 
 
 administering poison, etc., with intent to cause miscarriage, i. 853 
 procuring drugs, kc. to cause, tfec, ib. 
 
 construction of statutes, i. 8-54, et s^q. 
 other administrations to prove intent, i. 857 
 •woman concealing the birth of, i. 801 
 unlawful carnal knowleilge of female children, i. 871 
 a child under twelve yeai-s old, i. 872 
 a child above twelve and under thirteen, ib. 
 attempt to commit these offences, ib. 
 proof of age of child, i. 873 
 testimony of child, i. 874 
 
 postponement of trial where child not capable, ib. 
 where there is consent there cannot be an assault, ib. 
 consent is different from submission, i. 875 
 conviction for misdemeanor, i. 87 G 
 indictment, i. 877 
 procuring defilement of girls, ib. 
 abduction, &c., of, i. 883, et seq. 
 child stealing, i. 905 
 
 when a competent witness, iii. G12 
 INFECTION, 
 
 spreading infectious disorders, i. 2GG, et seq-, 438 
 murder by, i. 266, 673 
 INFORMATION, 
 
 on penal statutes, 
 
 compounding, i. 295 
 for libel, iii. 177. — See tit. Libel, 
 for sending a challenge, i. 3'J7 
 INFORMERS, 
 
 protection of, in evidence, iii. 553 
 INGROSSING, 
 
 statutes, lire, on the subject repealed, i. 349 
 INN, 
 
 disorderly, a nuisance and indictable, i. 42G 
 setting up new inns, ib. 
 innkeepers refusing to receive travellers, ib. 
 INN OF COURT, 
 
 setting fire to, ii. 902 
 INSANE PERSONS.— See tit. Capabimty, Luxatu^. 
 
 when depositions of, can be read, iii. 524 
 INSCRIPTIONS, 
 
 on walls, itc, iii. •'! 19 
 INSOLVENT.— See tit. Bankrupt. 
 INSPECTION, 
 
 of records, iii. 427 
 
 copy of indictment, how obtained, ib. 
 of depositions, iii. 42S, IJU 
 of pul)lic books, iii. 433 
 INSTRUMENTS, 
 
 for housebreaking, possession liy night, ii. 51 
 INSURANCE, 
 
 forgery on in.surancc companies, ii. 770 
 INTENT TO DKFRAUD, 
 how proved, iii. 377 
 
 how stated and proved in false pretences, ii. 594, GO'2 
 in forgery, ii. 73(1 
 in nialicious injuries, ii. 894
 
 7G2 Index. 
 
 INTENTION, 
 
 to ciiiuinil :i felony or inisiloiiicuiioi', i. IHHj rt srq. — Sec tit. Mihde- 
 
 MKANolt. 
 
 an act rcstiiij; in liarc iiitcntion nut iii(lict'il)lc, ih. 
 
 but an act doiio, iiinl ii criinin.il intention joincil thereto, arc KuHi- 
 cicnt, i. 1!J0 
 intent to ntter base coin, i. I'.'l 
 other acts coupled with criiniiiid intents, i. l'J2 
 intent to break houses, ih. 
 
 int1':kI':st, 
 
 incompetency from, iii, G18, vt .scy. 
 INTKRl'KKTAllON, 
 
 rule for, of criminal statutes, iii. G30, i. 2 
 LNTLMIDATION, 
 
 niiistor.s and workmen, iii. 1G2 
 lilELANI), 
 
 stealing in, ii, 273 
 
 marriages in, iii. 306 
 
 mode of ascertaining law in, iii. 123 
 
 judgment in, proof of, iii. 423 
 
 J. 
 
 JEAYS, 
 
 marriage of. — See Marriage. 
 JOINT TENANTS, 
 
 larceny by, ii. 239 
 JUDGE, 
 
 offering a bribe to, i. 190 
 oppression by, how punishable, i. 297 
 a competent witness, iii. G30 
 judicial notice of signature of, iii. 411 
 JUDU-MENT, 
 
 for offences at sea, i. 14 
 
 judgment during assizes or sittings, i. G3 
 
 of death, ib. 
 
 recording judgment of death, i. G4 
 penal servitude, i. G4, 72, ib. 
 general punishment for felonies, i. G5 
 •whipping, hard labour and solitary confinement, i. G-i, 78 
 after previous convictions, i. 65 
 
 form of indictment, ifcc, i. 67, e< seq. 
 conduct of trial, ib. 
 police supervision, ib. 
 proof of identity, i 70 
 
 special oflences by persons twice convicted, i. 76 
 
 provision as to children of woman twice convicted, i. 78 
 fines, sureties of the peace, i. 80 
 sentence where prisoner already in prison, i. 81 
 sentence at one time for several oftences, i. 82 
 juvenile oftenders, ib. 
 restitution of property, i. 83. — See Restitution. 
 
 execution of judgment against convict, i. lUG 
 proof of, iii. 413 
 
 of judgments in inferior courts, iii. 418
 
 Index. 7G3 
 
 JUDGMENT— con</?n(aZ. 
 
 of foreign judgment, iii. 419 
 of Irish judgment, iii. 423 
 JUDGMENT OF DEATH, i. 63 
 JURISDICTION, 
 
 plea to. — See Pleas. 
 of Quarter Sessions, i. 15, 51 
 of Admiralty. — See Venuk. 
 JURY, 
 
 de medietate Ungues, i. 52 
 JURYMAN, 
 
 tampering with, bribing, or attempting to bribe, i. 190 
 corrupting and influencing jurors, i. 3G0 
 competent witness, iii. GoO 
 JUSTICE OF THE PEACE, 
 
 acting as, not being qualified, not indictable, i. 195 
 oppression, ifec, by, how punishable, i. 297 
 refusing to grant ale licenses, i. 298 
 justices at petty sessions may tine constables, ic. for neglect of dutv, 
 
 i. 301 
 suppression of affrays by, i. 386, et seq., 395 
 orders of, disobedience to, i. 561 
 
 power to disperse unlawful assemblies, i. 374, et seq., 385 
 assaulting when preserving wreck, i. 974 
 EXAMINATIONS BY.— See tit. Examination, Deposition. 
 JUVENILE OFFENDERS, i. 82 
 
 K. 
 
 KIDNAPPING.— See also Child Stealing. 
 
 carrying away or secreting any person, i. 901 
 
 forcible abduction of persons, and sending tliem into other countries, I'A. 
 sending jjrisoners out of England, if). 
 
 punishment of master, itc, forcing his Bcanuin on shore, or refusing 
 to bring him home, i. 902 
 place of trial, <kc., i. 903 
 cases relating to, ib. 
 KING, 
 
 his money, what is, 1. 200. — Sec tit Coi.v. 
 
 disobedience to his connnands to return or to Jstay ut home, or asBiul ftt 
 
 his council, i. 250 
 his enemies, adhering to, when jtiracy, i. 259 
 petition to, not liliellmis. iii. 180 
 libels against, iii. 198, 199 
 KNOWLEDGE, 
 
 proof of guilty knowledge, iii. 370 
 
 L 
 
 LAND, 
 
 document of title to, ilefuiition of, ii. 220 
 
 btoiiHiig, ih. 
 jury not to cntpiirc of prisouors luud, iii. G37
 
 7()4 Index. 
 
 LANDED ESTATE ('0[T|IT, 
 
 for^riiij,' imiiic of jmlgc of, ii. <S05 
 LAND TAX, 
 
 forgery relating to, ii. 783 
 LAND TJlANSEKll ACT, 
 oUbnces under, ii. G1;J 
 LAKCENY. Sec Indkx, vol. ii. 
 
 Consolidiition Aet as to, iii. G.5 t 
 derivation of the word, ii. 12.'? 
 
 distinetion between grand and petit abolished, ii. 121 
 the (aliiiKj and cnmjinff avay, ii, 125 
 till' taking must be invito domino, ii. 130 
 takin(i by persons who have only a bare charge, etc., and by bailees, 
 
 ii.l33 
 taking wliere the otvner parts 7vi(h the pro/>erfy in the goods, ii. 113 
 taking iiJiere possession obtained by f rand, animo furandi, ii. 1.3G 
 taking by Jinding, ii. 183 
 tlie taking, dr., must be animo furandi, ii. 178 
 of the taking being Iv.cri causa, ii. 205 
 
 of the personal goods in respect of v;hi<h larceny mag be committed, 
 ii. 209 
 goods part of the freehold, ib. 
 where severed, ib. - 
 written instruments, ii. 217 
 animals, birds, and fish, ii. 233 
 domestic animals, ib. 
 animals /V;w natura% ii. 231 
 of the ownership of the goods in respect of which larceny may 
 be committed, ii. 239 
 joint tenants, ib. 
 partners, ib. 
 indictment, trial, and punishment, ii. 2 GO 
 punishment, ii. 281 
 LAW LIST, 
 
 evidence, iii. Ill 
 LEAD, 
 
 stealing from niine, ii. 210 
 as a fixture, ib. 
 LEADING QUESTIONS, 
 
 when allowable, iii. 557, 5 GO 
 LESSEE, 
 
 special property of, ii. 215 
 stealing chattels or fixtures, ii. 138 
 damaging buildings, fixtures, &c., ii. 92G 
 LETTER, 
 
 threatening. — See tit. Threat, ikc. 
 found in prisouer's possession, iii. 385 
 
 stealing, secreting, &c,, ii. Ill, et seq. — See tit. Post-Office. 
 LEWDNESS, 
 
 open lewdness and indecent exposure indictable, i. 1 31 
 LIBEL, 
 
 definition of, iii. 177 
 
 what publications libellous, ib. 
 
 slanderous words, iii. 178 
 
 mode of expression, ib. 
 
 name of pci-son libelled in blank, iii. 170 
 
 libel on a body of men, ib. 
 
 when party cau justify that the libel was true, ib.
 
 Index. 705 
 
 LIBEL — continned. 
 
 copied from anothei" work, iii. 180 
 privileged comm n n ica t ions, 
 
 petition to the King, iii. 180 
 
 Parliament, ib. 
 proceedings in courts of justice, t'^. 
 speeches of members of Parliament, iii. 182 
 publication of proceedings in courts of justice, ih. 
 before justices of peace, iii. 184 
 proceedings of public meetings, iii. 18;5 
 of proceedings in Parliament, ih. 
 of papers printed l)y order of Parliament, iii. ISG 
 comments u])on literary productions, iii. 187 
 sermons, iii. 188 
 confidential communications, ih. 
 
 in the conduct of a man's affairs, iii. 189 
 made with a view of inv^estigating a fact, iii. 190 
 made in the proper course of a proceeding, ib. 
 discussing matter in which public interested, iii. 192 
 proper meaning of a privileged communication, iii. 193 
 judge to say whether privilege exists, jury whether there is 
 malice, ih. 
 2mhlications against the Christian religion, ib. 
 statutes, iii. 194 
 
 Christian religion part of the law, iii. 19J 
 rational discussions allowed, iii. 19G 
 publications against morality, iii. 197 
 libels against the constitution, ib. 
 against the King, 
 
 statutes, iii. 198 
 cases, iii. 199 
 against Houses of Parliament, iii. 200 
 npon the Government, iii. 201 
 
 on magistrates and administration of justice, iii. 20:i 
 on private individuals, 
 
 words spoken are not indictable, iii. 20o 
 upon a man in his trade, iii. 20(3 
 npon a body of men, iii. 207 
 npon a person deceased, iii. 208 
 on foreigners of distinction, ib. 
 indictment for libel, iii. 209 
 evidence — plea — trial 
 
 writing and publication, iii. 21 1 
 
 what not a pul)lication, iii. 21.'? 
 
 acknowledgment of the defendant, ih. 
 
 procuring another to ])ul)li.sh, iii. 214 
 
 j)ublication by booksellere and pn'itrictors of newspapers, iii. 2I.''» 
 
 proceedings against printers of newsjjapers, iii. 210 
 
 printer's name to bo i)rinted (»u book, iii. 217 
 
 libel must be produced, iii. 218 
 
 variance, ib. 
 
 must be proved to have been pulili.-iiel in county laid in indictment, 
 
 iii. 219 
 depositions, gazette, itc, when evidence, iii. 221 
 criminal intention of defendant, ib. 
 other libels to jirove malice, iii. 222 
 evidence of a murder, iii. 223 
 
 meaning of a word iu italics for jury, if>.
 
 700 Indr.r. 
 
 \A \\V,\j — rmitliivril. 
 
 (U'foii(lant'.s cvidtiice, iii. 223 
 
 verdict, iii. 221 
 
 jii(li,'(> not bomul to Htato liis opinion wlicllifr writin;^' a lil)el, iii. 22.'i 
 
 jud^MlHMlt, lf>. 
 
 ]lUlli^ilIll<'Ilt, i/>. 
 Lord (_'aiii])lK'irs Act, iii. 22G 
 
 tiircatoniiig to pulilisli libel to extort moneys ib. 
 puiiislimcnt for dufaniatory libel, iii. 227 
 ])rocecdings u2)ou trial, iO. 
 jdea, ih. 
 
 cvidciiCG to rebut prima facie case of publication by agent, jh. 
 costs, iii. 227, 229 
 interpretation clause, iii. 228 
 cases on act, ih. 
 
 affidavits in mitigation of punishment, iii. 229 
 LIBRA IIY, 
 
 injuries to works of art in, ii. 965 
 LICENSE, 
 
 under penal servitude Acts, i. 71, 7-3 ; iii. 045, GIG, G73, et sf/. 
 marriage by, i. 302, et scq. 
 marriage, forging, ii. 80 G 
 LIFE, 
 
 continuance of, iii. 321 
 LIFE ANNUITIES, 
 
 forging in respect of, ii. 812, 813 
 LIGHTS, 
 
 making lights, etc., on the coast as signals to smuggling vessels, i. 272 ; 
 iii. Gdo 
 
 to bring ships into danger, ii, 959 
 LINEN, 
 
 stealing, in process of manufacture, ii. 43G 
 damaging, in process of manufacture, ii. 949 
 LOCK, 
 
 on river, canal, etc., breaking down, itc, ii. 910 
 LODGINGS, 
 
 chattels and fixtures let with, larceny of, ii. 240, 438 
 LOOM, 
 
 destroying, itc, ii. 949 
 LOSS, 
 
 of instrument, iii. 333 
 proof of lost writing-, ib. 
 LOTTERIES, 
 
 public nuisances, when, i. 439 
 LUNATIC, 
 
 what, i. 1 1 4 
 
 distinction between, and an idiot, i. IIG 
 
 how far capable of committing crimes, i. 114, et seq. — See tit. Capadility. 
 proceedings with regard to lunatic oft'endei-s, i. 135 
 disposal of persons ac([uittGd on the gi-ound of insanity, i. 136, et seq. 
 found insane on arraignment, i. 137 
 dischaiged for want of prosecution, ib. 
 neglect of, i. 051 
 illtreatment of, i. 952 
 
 competency as a witness, iii. 611 
 
 deposition of, when lunatic at the trial, iii. 524
 
 Index. 7C,7 
 
 M. 
 
 MACHINE, 
 
 threshing and agricultural, destroying, ii. 9.") [ 
 employed in silk, woollen, linen, cotton, <kc, manufactures, ii. 9 t'J 
 in other manufactures, ii. 95 i 
 in mines, ii. 946 
 when taken to pieces, ii. 954 
 MADMAN. 
 
 capability of, to commit crimes, i. llo^ ef s>''/. 
 competency as a witness, iii. Gil 
 MAGISTRATES.— See tit. Justices. 
 
 orders of, disobedience to, i. 5G1, et seq. 
 MAIMING, 
 
 at common law, i. 910 
 
 nature of the offence, ib. 
 offences by statute, i. 9 1 1 
 
 administering poison with intent to murder, ib. 
 
 wounding with intent to murder, ib. 
 
 causing any bodily injury dangerous to life, with like intent, ib. 
 
 attempting to poison, with like intent, i. 913 
 
 shooting, or attempting to discharge loaded arms at any pereon, with 
 
 like intent, ib. 
 attempting to drown, suffocate, or strangle, with like intent, if>. 
 destroying building with explosive substances, with intent to murder, 
 
 i. 912 
 setting fire to ship with like intent, ib. 
 attempting by any other means to commit nunxler, i. 913 
 sending letters threatening to munler, ib. 
 
 impeding person endeavouring to save his life from sliipwrcck, i. 014 
 shooting, wounding, Arc. with intent to maim, ib. 
 
 disfigure, ib. 
 to do some grievous bodily harm, ib. 
 to prevent ai)prehension or detainer, ib. 
 loaded arms, ib. 
 inflicting bodily injury, ib. 
 administering poison to endanger life, i. U\'> 
 to injure or annoy, ib. 
 verdict of jury, i. 91 (J 
 cases on former statutes, ib., et se<j. 
 of attempts, i. 94G 
 
 by wanton, etc. driving of coachman, i. 980 
 maiming cattle, ii., 9l'7 
 MAINTENANCE, 
 
 what it consists in, i. 351 
 instances of it, ib. 
 when jiistifial)le, i. 352 
 
 in respect of an interest in tlio thing at vari;incr, ib. 
 of kindred or atfinity, i. 3.")4 
 
 of the relation of lord and tenant, niaster nnd BCivat.f. ib, 
 of charity, if). 
 
 of tlie profession of the law, i. 354 
 purchase of fruits of verdict, i. 355 
 contract for sum beyond costs, /'*. 
 assignment of subject-matter of suit, ib.
 
 708 Iii<hx. 
 
 M A I NTKNANCE— ro»////,/^J. 
 
 hy hii^iii^ ov selling protended liLle, i. '•)'>'.) 
 puiiislinient, i. 3dU 
 MALA J'A'AX/S, 
 
 of 11 pliy.siciiin, wlii'llior iudicliihle, ii. ")1 I 
 MALICIO, 
 
 against owiirr ol' iiropcrfy injui-cd, not nece.ssaiy, ii. S'J2 
 express or implied by law, i. Gi2 
 description of, in a legal sense, i. G42, and note (/) 
 MALTCTOl'S INJURY, 
 
 consolidation of former statutes, ii. 892, et sof/., iii. GGl 
 malice against owner not necessary, ii. ib. 
 where the natural conse(]uencc of an act is to injure another, such 
 
 intent will be presumed, ib. 
 an injurious act done inider a claim of right, ii. 803 
 Act applies to persons in possession of the property injured, ii. 894 
 intent to injure or defraud any individual need not be alleged, ib. 
 principals and accessories, ii. 895 
 oilences at sea, were tried, ib. 
 punishments, ib. 
 costs, iii. G."32 
 
 apprehension of t^fFenders, ib. 
 to real or personal property not otherwise provided for, ii. 9G7 
 MALICIOUSLY SHOOTING, i. 913, et seq.—Hcc tit. Maimixg. 
 RLVLTIIOUSE, 
 
 setting fire to, ii. 901 
 MANAGER OF COMPANY, 
 
 fraudulently converting jn-opcrty, ii. 395 
 keeping fraudulent accounts, ib. 
 destroying books, ib. 
 publishing fraudulent statements, 396 
 MANGANESE, 
 
 stealing from mine, ii. 210 
 MANSLAUGHTER.— See Lxdkx, Vol. I. 
 absence of malice, i, 810 
 aiders and abettors, and accessories, ih. 
 cases of manslaughter. — See Index, Vol. T., Murder. 
 cases of provocation, i. 811. — See iNIl'Rdeu. 
 cases of mutual combat, i. 811. — See Murder. 
 cases of criminal, unlavfnl, or ivanton acts, i. 812, et seq. 
 lanful acts criminally or improperly performed, or acts without authority, 
 
 i. 822, et seq. 
 indictment, i. 8-10 
 evidence, i. 841 
 accessories, ib. 
 punishment, i. 842 
 
 on the high seas.— See Sea, Offences at. 
 MAN-TRAPS, 
 
 scttinir, etc., i. 987 
 MANUFACTORY, 
 
 pulling down riotously, buildings or engines used in, i. 3G8 
 oftensive, carrying on, when a nuisance, i. 419 
 setting fire to, ii. 901 
 MANUFACTURE, 
 
 larceny of cloth, A-c. in process of, ii. 43G 
 damaging or destroyiiiL;; articles in a cour:je of, ii. 949 
 MARKET, 
 
 clerk of, extortion by, i. 30 1
 
 Index. 769 
 
 MA RK Y.T—con tin ued. 
 
 farmer of, extortion by, i. 304 
 MARKS, TRADE, 
 
 forging of, ii. GIO. — See tit. Trade Marks. 
 MARRIAGE.— See tit. Bigamy. 
 
 having a plurality of wives at one time, iii. 2G4 
 Marriage Acts, iii. 272, 294 
 in an assumed name, iii. 294, 298 
 consent of parents, iii. 299 
 in presence of registrar, iii. 284 
 of Protestants by Roman Catholic priest, iii. 310 
 in a chapel erected since ^hirriage Act, 2(J (Jeo. 2, iii. 30.3 
 in Scotland and foreign countries, iii. 300 
 in Ireland, iii. 306 
 in Ne\vft»undland, iii. 312 
 Quakers, iii. 279, 288, 293, 313 
 Jewish, ib. 
 French, iii. 313 
 of lunatics void, ih. 
 clandestine marriage, i. 898, et seq. 
 of members of the royal family, i. 900 
 register of, how proved, iii. 426 
 register, forging, Arc, ii. 806 
 licence or certificate of, forging, ih. 
 MARRIED WOMAN, 
 
 how far, and in what cases, excused, by the coercion of husband, 
 i. 391, et seq. — See tit. Feme Covert. 
 MASTER AND APPRENTICE.— See tit. ArrRE.xTicE. 
 MASTER AND SERVANT, 
 
 servant of baker putting noxious things into bread with master's kn-w- 
 
 ledge — master indictable, i. 268 
 ill-treating servant, i. 947 
 MASTIFF, 
 
 keeping unmuzzled, i. 438 
 MAYHEM, i. 910, et seq.—Soe tit. Maiminv.. 
 MEDICAL PRACTITIONER, 
 forging, register of, ii. 799 
 MEMORY, 
 
 refreshing, iii. 566 
 MENACES, 
 
 demanding property with, ii. 79 ; iii. 234, 2;>.') 
 
 MERCHANT, 
 
 embezzling money or security entrusted with him with written directions, 
 
 ii. 390 
 goods intrusted to him for safe custody, ii. 391 
 fraudulently selling such goods, ii. 390 
 MERCHANT SillPPlNC ACTS, 
 costs under, i. 91 
 
 deposition, when evidence, iii. r).')(; 
 unseaworthy ships, sending to sea, iii. 706 
 
 MERGER, 
 
 of misdemeanor in felony, i. 1S7, 194, 876 
 
 abolished, 14 ct 15 Vict. c. 100, s. 12, i. 870 
 METROPOLITAN BOARD, 
 
 making false entries in books of, ii. 7r)0 
 
 clerks of board making out falbc dividend wurmuts, ii. 7.*)" 
 
 VOL. 111.
 
 770 Iiithx. 
 
 MII.KOIID ir.WKX, 
 
 coiiciiiiviil. jiii'isdiL'tioii of the ('(uninoii Law an<l Ailiiiirally in, i. l.")3 
 MILITAKV srollKS.— Sec tit. Stoukh. 
 MILL, 
 
 riotously pulling down, i. 308 
 Hottin;^ fire to, ii. 1)01 
 MILLI5ANK TKNITKNTIAUY, 
 costs of removal from, i. 95 
 csL'!ii)e of prisoners from, i. 581, 599 
 MILLKIl, 
 
 indictment n^.ainst, for receiving good barley and returning bad meal, 
 
 i. 195, and note {a) ; ii. 523, note («). 
 extortion by, in taking toll, i. 304 
 detaining corn not indictable, ii. 522 
 MILL-rONL), 
 
 destroying dam of, ii. 9-11 
 putting noxious materials into, ib, 
 MINES, 
 
 stealing ore from, ii. 210 
 
 removing ore in, ii. 179 
 
 destroying engines, buildings, ttc. used in collieries, mines, itc, ii. 945, 
 
 et seq. 
 drowning or filling up, ih. 
 pulling down steam-engines in mines, ii. 94G 
 
 what a damaging such engines, ib., et seq. 
 setting fire to mines, ii. 945 
 attempting so to do, ib. 
 obstructing airway or shaft, ib. 
 
 injuring ropes, tackle, etc. used in any way about mines, ii. 94 G 
 riotously destroying engines, buildings, &c. used iu collieries, mines, kc, 
 i. 3G8 
 MINISTER, 
 
 obstructing, iu doing his duty, i. 401 
 MISCARRIAGE OF WOMEN, 
 
 destruction of infants in the womb, offence at common law, i. 853 
 administering poison, itc. to procure, ib. 
 MISDEMEANOR, 
 costs in, i. 8G, 96 
 description of, i. 187 
 punishment of, i. 197 
 misprisions, i. 187 
 
 what off'ences amount to, so as to be indictable, ib., et seq. 
 disturbances of the peace, i. 188 
 misprisions, oppressions, and contempts, i. 187, 188 
 misbehaviour by public officers, i. 188, 190, 297 
 offences of a;j»6/i'cevil example against the common law, i. 188 
 sjireadhig infections or contagions, i. 2GG, 438, et seq. 
 whatever outrages decency, and is injurious to public morals, i. 188 
 offences in matters prohibited or enjoined by statute, ib., et seq. 
 disobedience to an order of council, i. 263, 562 
 neglect of children of tender years, i. 19G 
 selling unwholesome food, i. 268 
 inuluc abatement of i)rice of commodities, i. 350 
 attempts to conmiit felonies or misdemeanors, i. 188 
 soliciting another to commit felony, i. 189 
 attempt to commit a misdemeanor, ib. 
 whether statutory or at common law, ib. 
 attempting to bribe a cabinet minister, or the like, i. 190
 
 Index. 7 7 1 
 
 MISDEMEANOR— co«r;»?^^(7. 
 
 attempting to bribe a mayoi-, i. 190 
 a jui-ymaii, ih. 
 a judge, ib. 
 attempting to suborn perjury, ib. 
 
 endeavouring to provoke a challenge, i. 189, note (c), 390 
 conspiring to obtain money by obtaining an appointment for 
 
 another in a public office, i. 190, note (m) 
 an act done and a criminal intention joined to that act, are sufficient, 
 
 i. 190 
 possession of coining instruments, ib. 
 
 having counterfeit silver in possession, with intent to utter it, insuffi- 
 cient, i. 191 
 
 secus, having procured such with such intent, ih. 
 
 there must be some act done to constitute a crime, ib. 
 having implements of housebreaking with felonious intent, i. 
 
 192 
 severing ore from mines with intent, itc, ib. 
 damaging articles in the course of manufacture with intent, 
 (to., ib. 
 offisnces created by statute, when indictable, i. 193 
 
 when not, i. 194 
 where a statute made that felony wliich before was a misdemeanor 
 
 only, the misdemeanor was formerly merged, ib. — See Mkuoeu. 
 but is not so now, ib., note {I) 
 cases not indictable as, i. 195 
 
 trespasses, i. 197 
 compromise by prosecutor by leave of the court after conviction, i. 293 
 compounding, ib. 
 accessories in. — See Accessories. 
 killing a person who is committing, i. 770 
 arrest by officers in cases of, i. 723, 977, et sa/. 
 on trial for, no acquittal if offence a felony, i. G2 
 MISNOMER, 
 
 of party named in an indictment, iii. 399, e( ii(</. 
 dilatory plea of, 7 Geo. 4, c. G4, s. 19 ; i. 37 
 MISPRISION, 
 
 use of the word in its larger sense, i. 187 
 of felony, ib., 188, 292, ct ge<i. 
 dcliuition of, i. 187, 292 
 punishment of, i. 292 
 
 by conceahng a felony known to be intended, i. li'^S 
 how many witnesses necessary in, iii. 094 
 MISTAKE, 
 
 killing by, i. l-");") 
 MONEY.— See tit. Coin. 
 
 how stated in tlie indictment, i. 23 ; ii. 2<t3 
 MONOPOLY, 
 
 an offence at common law, i. 319 
 MONSTiai, 
 
 exhil)iting, fur money, i. 430 
 MONUMENT, 
 
 of the dead, injuring, ii. 90") 
 MORAVIANS, 
 
 affirmations by, iii. 010 
 MOULDS, 
 
 for niakin'^c )ia]>cr of bankers, ii. N79 
 MUNICIPAL ELECTIONS, i. 333
 
 772 hulcx. 
 
 MUNK'TPAT. CORPORATfON MoRTCAdlKS ACT, 
 
 n'])i'iil of ]i;irt dI", iii. <i!ll 
 MUKDKR. — See ]ni»i:x, Vol. I. ; and sec Indkx, Vol, I. tif. Manslaughter; 
 and for attempts, see Maiming. 
 definition of the crime, i. Oil 
 malice iircpcnso, ih. 
 
 may be cither express or implied, i. 01- 
 loj^al sense of ^imtlitla,^ ib. note (/) 
 the party killing, aud Ic'dU'd, i. Gil 
 the parti/ killed, i. 045 
 
 fclo de se, i. G47 
 thf means of kUlimj ; and herein canung of death hy neglect of duty, i. 050 
 time of death — treatment of ivounds — kdling a jierson lahouring under a 
 disease, i. 073 
 
 cases of p7-ovocation, i. G7G 
 words, itc., ib. 
 assault, i. G78 
 
 personal restraint and coercion, i. G79 
 cases of mutual combat, ib., et seq. 
 deliberate duel, i. 095 
 seconds and others present, i. 09G, 097 
 combat upon sudden quarrel, i. 097 
 cases of resistance to officers, and private persons authorised, i. 707, 
 et scq. 
 resisting and killing officers, ib. 
 ■when private person may arrest, i. 711, et seq. 
 when constable may do so, i. 720, et seq. 
 
 warrant directed to several may be executed by one, i. 734 
 warrant must be executed either by person named in it, or 
 
 some one in his presence, ib. 
 by officer having the warrant, ib. 
 production of warrant, i. 735 
 how long warrant continues in force, ib, 
 as to the legality of the process, i. 730 
 
 distinction between warrant of superior and inferior courts, 
 
 i. 739 
 illegality of blank warrants, i. 740, et seq. 
 notice of the authority to arrest, i. 743 
 
 right of officers to break o]ien windows or doors to airest, i. 748 
 in the prosecution of criminal, vnlauful, or wanton acts., i. 759, et .<ieq. 
 
 particular malice to one ftilling npon another, i. 759 
 cases of lauful acts criminally or improperly peiformed, or done without 
 authority, i. 707, et seq. 
 officers of justice acting improperly, i. 7C7 
 aiders and abettors, i. 780 
 indictment, i. 784, et seq. 
 
 murder or manslaughter abroad, i. 780 
 murder on a British ship by an alien, i. 791 
 fonn of indictment, i. 792, et seq. 
 
 finding the bill by the grand jury, ib. 
 airaignment, i. 797. 
 pleas of autrefois acquit and autrefois attaint, i. 38 
 evidence, i. 797, et seq. 
 veidid, i. 800 
 concealment of birth of children, i. 801, et seq. 
 
 any person may be convicted of either on a trial fcr murder or con- 
 cealment of birth i. 801 
 aiders aud abettors, i. 802
 
 Index. 773 
 
 MURDER— co»f;Vn;?f/. 
 
 any secret disposal of the body is now sufficient, i. 802 
 
 judgment and execution, i. 807 
 
 conspiracy and attempts to murder, i. OOG, el sfq.—Sec tit. Maimino. 
 
 on the high seas. — See tit. Venue. 
 
 rescuing murderers, i. 585 
 
 their bodies after execution, ib. 
 MUSEUM, 
 
 injuring works of art in, ii. 0G5 
 MUSTER-BOOKS 
 
 of navy, evidence, ii. 802 
 MUTE, 
 
 prisoner who stands, how to be dealt with, i. 113, nulc (/^ 
 MUTINY, 
 
 seducing soldiers and sailors to, i. 251, et i>c</. 
 
 fraudulent enlistment, ii. GIG 
 
 N. 
 
 NAME, 
 
 variance in, i 58, et seq. 
 NATIONAL DEBT ACT, 1870. 
 
 forgery of certificate issued under, ii. 751 
 
 personation of owners of such stock, ii. 752 
 
 engraving plates for such stock certificates, ih. 
 NAVAL STORES.— See tit. Stores. 
 NAVIGABLE RIVER, 
 
 destroying bank, dam, wall, kc, ii. 910 
 
 removing piles, kc, ib. 
 
 opening floodgates, ib. 
 NAVY, 
 
 forging certificate of services in, ii. 800 
 ^^E EXE A 7' L'EGXO, 
 
 di.sobedicnce to the writ of, i. 250 
 NEGATIVE, PROVING A, 
 
 when bound to prove a negative averment, iii. 3G5, et seq. 
 NEGLIGENCE, 
 
 by public officens, i. 299 
 
 doctrine of contributing negligence in manslaughter, i. 833, 8-10 
 
 endangering railway passengers, i. 91)0 
 
 neglecting, kc. to deliver election writ.s, i. 33G 
 
 by drivers of carriages, i. 'JtyG 
 NEWS, 
 
 publisliiii'j: false news or tales, iii. 198, ami note (r) 
 NEWSPAPEitS, 
 
 evidence of publication of, iii. 215, ft seq. — See tit. Liukl. 
 
 forging stamps of, ii. 773 
 NEW TRIAL, 
 
 when it can be obtained, iii. .">1'.* 
 
 after acquittal on nuisances to highways, i. 505 
 
 bridges, i. 55 G 
 NIGHT, 
 
 for the purpose of buru'larv, ii. 3G 
 
 entering house by night with intent to commit a felony, ii. 51 
 
 being armed by night with intent to break into buildings and cmiri 
 felony, ib.
 
 774 Index. 
 
 mVAVV—cnvdiiiir.l. 
 
 lijiviii;^ imiiliMiiciifs of hoiisolirenkiiig, A'c. witU intcut, ttc, ii. 'ii 
 
 tlic like after ii jn-cvioiis coiivicliDii, //*. 
 
 HplirchcnHiou ofsiicli olVciKlors, Ih. 
 
 any instrument ciipablo of being uscil for liousebroaking is within the 
 
 Act, ill. 
 intent io commit a felony witli liouscbrcaking implements unnecessary to 
 bo allogeil, ii. r)3 
 
 as to defining house intended to be broken into, ih. 
 apprehending persons committing ofleuccs in, i. Gli'J 
 NKiilT-WALKKRS, 
 
 a|)prohension of, i. 72G 
 in(lictal)lo, //)., and note {t) 
 NOISES IN THE NKJUT, 
 
 tlic making, when indictable, i. 438 
 XON COMPOS MENTIS.— '6qo tit. Cai-abilitv. 
 idiots, i. II 3 
 lunatics, i. 1 1(> 
 persons drunk, i. 11") 
 cases concerning, i. 114, et seq. 
 rule derived therefrom, i. 134 
 proceedings with respect to trial, &c. of, i. 13.5 
 disposal of persons accpiittcd on gi-ounds of insanity, i. 136, ct seq. 
 found insane on arraignment, i. 137 
 discharsied for want of prosecution, ib. 
 NONFEASANCE AND PARTICULAR WRONG 
 
 not in general indictable, i. I9G 
 NOTICE, 
 
 to produce documents, iii. 340 
 when and how to be given, ib. 
 consequence of giving, iii. 345 
 NOXIOUS THING, 
 
 administering with intent to injure, i. 915 
 so as to endanger life, ih. 
 to procure abortion, i. 853 
 NUISANCE. — See Index, Vol. I. and sec id. tit. Higuways, Rivers, Bridges. 
 signification of, 1. 418 
 public and private, ih. 
 public nuisances in general, i. 419 
 
 The Explosives Act, i. 424 
 disorderly inns and other houses, i. 42G 
 bawdy-houses, i. 427 
 
 common gaming-houses, kc, i. 428, 430, 433 
 betting houses, i. 433 
 o]icn lewdness and indecent exposure, i. 434 
 what is a public place, ih. 
 indictment for indecent practices, i. 435 
 bathing, i. 436 
 exhibiting monsters, itc, ib. 
 obscene prints, itc, ib. 
 punishment, i. 438 
 ciivcs-drojipcrs, ih. 
 common scold, if). 
 noises in the night, ih. 
 spreading infection, ib. 
 mastiff unmuzzled, ib. 
 by statute, i. 439 
 
 lotteries, tire, ib.
 
 Index. 775 
 
 NUISANCE— coj?^?;a«(?d 
 
 of the removal of nuisances, i. 439 
 
 prohibition of, by writ from Q. B., i. 440 
 
 indictment for, ib. 
 
 where a Landlord is hable for a nuisance from premises held by tenants, ih. 
 
 acts of servants in the course of em[)loynient, i. 442 
 
 defendant cannot excuse himself by showing that it has existed for a 
 length of time, ih. 
 particulars of the nuisance, ib. 
 
 judgment ib. 
 
 costs, i. 443 
 to public highways, i. 441, et seq.—Soc tit. Highways. 
 to public rivers, i. 520, et seq. — See tit. Rivehs. 
 to public bridges, i. 530, et seq. — Sec tit. Buiuuks. 
 NURSERY GROUND, 
 
 stealing plants from, ii. 21 G 
 destroying plants in, ii. 937 
 
 0. 
 OATHS, 
 
 administering to a witness, iii. G14 
 administering or taking unlawful oaths, i. 284, et seq. 
 indictment, i. 287, 291 
 evidence, i. 288 
 place of trial, ib. 
 
 when persons offending may bo tried for high treason, ih. 
 til Geo. 3, c. 19, i. 289 
 
 societies taking unlawful oaths, kc, ib. 
 50 Geo. 3, c. 102, ih. 
 
 administering or taking unlawful oaths in Ireland, Hk 
 5 & G Will. 4, c. G2, i. 290 
 
 justices not to administer oaths where they liavc no jurisdictitm, 
 
 ib. 
 societies taking unlawful oaths to be deemed unlawful combina- 
 tions. Arc, i. 377, el seq. 
 5 & 6 Will. 4, c. G2, dcclaratiuns substituted for oath.s, wlicrc, iii. 2S, 
 
 et seq. 
 justices administering milawful oatlis, iii. 30 
 cases on this statute, iii. lOG 
 OBJECTIONS 
 
 to indictments, how to be taken, i. 3.5 
 OBLITKRATING, 
 
 valuable securities, ii. 221 
 deeds, ii. 220, 22 1 
 wills, ii. 219 
 records, ii. 221 
 
 crossings on checks, ii. 821. — Sec 39 it 40 Vict. c. si 
 OBSCENE PRINTS, 
 
 search for, S:c., i. 43G 
 OBSTRUCTING TKOCESS, i. 558, et seq.— Sec tit. riiooK-HS. 
 ollicers in execution of tlieir duty, i. «s71 
 railway trains, i. 989 
 OFFKNCES, 
 
 when indictable.— Sec tit. Inuict.vule OFFliXCK.>j and MlSUEME.v.X0li3. 
 wliere triable. — See tit. Vknlk.
 
 77r> Index. 
 
 OKKKXSIVK WKAPON, 
 
 wliiit h1i;i11 1)0 (looint'il, i. 277, rl srij.j G32 
 OFFK'Kll.— Sco Indkx, Vol. 1. 
 
 uHliicois hy j)or8()n.s in oftico, i. 207, H xer/. 
 
 niiHconduct by puhlic olHccrs indictiiblo, i. 80, 207 
 oppression !>i/ piiblir oj/irers, i. 207, et .sry, 
 netjU(jciic.e lnj piifilic oj/urrs, i. 200, et seq. 
 ofliccrs of corporations, ih. 
 ck'ri^ymen, i. 'M\ 
 frauds by public officers, i. 302 
 extortion by public officers, i. 303 
 where a duty is thrown on a body of poreons each is liable for a 
 
 breach of duty, i. 303 
 when unnecessary to state in indictments notice of acts causing breach of 
 
 duty, ib. 
 killing those who assault or resist him, or fly. — See tit. Homicide. 
 resisting and killing, when murder.^ — ^Sec tit. Mluueu. 
 
 when manslaughter. — See tit. Max.slaughteu. 
 improper acts of, when murder. — Sec tit. Muudek. 
 
 when manslaughter. — See tit. Manslaughter. 
 authority of, to arrest, kc. — See tit. Arrest. 
 taking opposite sides in an affray, i. 720 
 embezzlement by public officers, ii. 404, 406 
 
 evidence of acting as such sufficient, iii. 320 
 OFFICES.— See Index, Vol. I.— See tit. Officer. 
 refusal to execute offices, i. 307 
 buying and selling, i. 300, et seq. 
 offence at common law, i. 300 
 by statutes, i. 310, et seq. 
 attempt to bribe a minister to give an office, i. 300 
 indictment, i. 317 
 OPrRESSTON 
 
 b}^ public officers, i. 207 
 ORCHxVRD, 
 
 stealing fniit, cfec, from, ii. 216 
 destroying fruit, etc., in, ii. 037 
 ORDERS, 
 
 disobedience to, i. 561 
 of sessions, ib. 
 of council, i. 263, 562 
 of justices, i. 562 
 service of order, i. 563 
 indictment, &c., ih. 
 order to jjay church rate, ih. 
 order of sessions on appeal, against rate, i. 564 
 order to restore possession of land, i. 565 
 order to stop up highway, i. 566 
 
 legality of the order caunot be inquired into on the trial, ih. 
 but want of jurisdiction, or defects on the face of the order may, il). 
 arrest of judgment — what objections allowed, ib. 
 of council, 
 
 publication of, in Gazette, sufficient notice, i. 563 
 for payment of money, forging, ii. 810 
 stealing, ii. 223 
 for deliveiy of goods, forging, ii. 810 
 of justices, forging, ii. 746 
 ORDNANCE, 
 
 forging hand of treasurer of, ii. 704
 
 Indeo'y. 777 
 
 ORE, 
 
 stealing from mine, ii. 2lU 
 removing, in mine, ii. 17'J 
 OUTHOUSE, 
 
 setting fire to, ii. 901 
 what is an outhouse, ii. 910, et seq. 
 OVERSEERS OF THE POOR, 
 
 how punishable for misfeasance in office, i. 209 
 
 instances of misfeasance, itc, ih. 
 indictable for neglect, when, i. 300 
 in not relieving paupers, ib. 
 refusing to call vestries, i. 301 
 indictable for keci)ing fraudulent accounts, i. 302 
 indictment for refusing ofiice, i. 308 
 
 for not accounting to auditors of a union, i. 299 
 for refusing to account, i. 300 
 
 for refusing to make a rate to reimljurse constable, ih. 
 for refusing to receive a pauper, ih. 
 
 neglecting to supply medical assistance, ih. 
 refusing to call vestry meetings under 1 & 2 Will. 4, c. GO, 
 i. 301 
 OWNERSHIP OF GOODS.— See Amendment, Indictment. 
 OYSTERS, 
 
 stealing from fishery, ii. 304 
 using a dredge in a fishery of, ih. 
 form of indictment, ii. 305 
 
 proviso for floating fish, ih. 
 
 P. 
 
 PALACE, 
 
 striking or drawing weapon in the King's palace, i. 971 
 PARDON, 
 
 effect of, iii. 639, G44 
 PARENT AND CHILD, 
 
 command of parent no excuse for commission of crime by child, i. 139 
 
 neglect of child by parent, indictment for, i. 19(), '949 
 
 correction of child by parent in foro donvstico, i. 773, 814 
 
 father taking up ([uarrel of son, death by, i. G82, G87 
 PARISH, 
 
 burthcning a parish with jtaupers, fraudulently, i. 19G 
 
 property of, how described, ii. 2.")8 
 PARISH RE(}1STEII, 
 
 forcing, itc, ii. 80G 
 PARLIAMENT, 
 
 petitions to, not libellous, iii. 1^0 
 
 speeches in, and other proceedings in, when lilu'llou.s, iii. 182 
 
 papers printed by oriler of parliament, iii. iy.'», I8G 
 
 libels against, iii. 200 
 
 journals of, when evidence, iii. 408 
 
 speeches in, not allowed to be provc<l, iii. ^i7'»(j 
 PARTNKIiS, 
 
 larceny l)y (Hie of .several, ii. 2."»9 
 
 property of, linw laid, i. 2"» 
 
 intent to defraud in forgery, ii. 70G 
 PAUPKIIS, 
 
 bringing them fraudulently into n pari.->li, i. I9r>, PJG
 
 778 Index. 
 
 PAW NT NO 
 
 jii-ojicrty, ii. 1 28 
 I'AY 
 
 of Sdldioi', A'c, forgery, itc, to obtain, ii. 71M, d .s"/. 
 1M':A('H officer.— Soo tit. CON.STADLE. 
 rEDICKFK, 
 
 fiilsifyinu', ii. Ci 1 1 
 TENAL SERVITUDE.— Sec Judgment. 
 
 provisions as to, i. Go, 72 ; iii. G44, 040, 072, et seq. 
 Bulistitutcd for triins[)ortation, 1. 73 
 
 Acts ri'latin.i; to transportation to apply to penal servitude, i. 72, cl sop 
 PENAL STATUTES.— See tit. Statute. 
 
 com])oundin<j; informations njmn, i. 295, cl seq. 
 I'ENITENTIAUY.— See tit. Mii.ldank. 
 PENSION 
 
 of soldier or sailor, forgery and false personation as to, ii. 800, et seq., 886 
 PERJURY, 
 
 by an infant, i. 108 
 
 attempt to suborn, a misdemeanor, i. 100 
 
 murder by, i. 002 
 
 by the common 1 i\v, iii. 1 
 
 subornation of, by the common law, ib. 
 
 the false oath must be wilful, and taken with some degree of delibe- 
 ration, ih. 
 a man may be indicted for perjury in swearing he believes or tlauks a 
 
 fact to be true, iii. 2 
 the oath must be false, ib. 
 the oath must be taken in a Judicial proceed inr/, iii. 2, et seq. 
 any court, &c., may administer an oath, iii. 3 
 oath to procure a maiTiage license, ib. 
 and before a competoit jurisdicton, iii. 5. et seq. 
 before a court martial, iii. 5 
 under Public Health Act, ib. 
 \uider Debtors' Act, 1809, iii. 6 
 under a commission to examine witnesses, ib. 
 Insolvent Debtors' Court, ib. 
 in Bankruptcy, ib. 
 London County Court, iii. 7 
 before grand juiy, ib. 
 sinumary proceedings before justices, ib. 
 bastardy cases, ib., et seq. 
 public-house cases, iii. 9 
 game cases, iii. 10 
 the oafli viust be material to the question pendinr/, ib. 
 if circumstantially material it is sutticient, iii. 10 
 it need not be sufficient to prove the point, iii. 1 1 
 whatever aftects the credit of a witness is sufficient, ib. 
 dates of instruments, ib. et seq. 
 entering close in piu'suit of game, iii. 13 
 l)assing by a different name, ib. 
 evidence to admit a document, iii. 14 
 reading over a bond, iii. 15 
 destruction of accomits, iii. 10 
 evidence on a i-efcrence, ib. 
 
 before a coroner, ib. 
 in a ba.stardy case, iii. 17 
 where inadmissible evidence was improperly admitted, j7'. 
 oaths denying contracts void by the statute of fi'auds, iii. 19
 
 Index. 770 
 
 PERJURY— co?i^»u{«?. 
 
 to set aside contract on the ground of fraud, iii. I'U 
 on trial of indictment reversed on error, ih. 
 
 any oath which tends to mislead a court in a judicial proceeding, iii. 21 
 materiality a question of law, ib. 
 a man may be perjured in his own cause, iii. 22 
 a false verdict not pcijury, ih. 
 oath need not be credited, ib. 
 
 false oath indictable in some cases, though not a.ssiguable as perjury, 
 iii. 23 
 statutes relating to, ih., et seq. 
 
 5 Eliz. c. 9, s. 3, procuring any witness to commit perjury, ic, ib. 
 s. G, persons committing perjury, Sic, iii. 21 
 trial of ofleuces, where, ih. 
 2 Geo. 2, c. 25, punishment of perjury, iii. 25 
 statutes as to false affirmations of Quakers, Moravians, Separatists, 
 
 &c., ib., et seq. 
 all bound by the oaths they have taken, iii. 2G 
 affimiatious, iii. 27 
 as to marriages, iii. 28 
 
 5 & 6 Will. 4, c. 62, s. 2, lords of the treasury may substitute declarations 
 for oaths in certain cases, ib. 
 s. 3, declaration to be published in Gazette, iii. 20 
 s. 4, no oath to be administered afterwards, ib. 
 a. 5, false declarations a misdemeanor, ih. 
 s. 8, universities may substitute declarations fur 
 
 oaths, ib. 
 s. 9, declarations by churclnvardens, ib. 
 s. 10, as to turnpike trusts, iii. 30 
 s. 11, on taking out patents, ///. 
 s. 12, as to pawnbrokers, ih. 
 s. 13, justices of peace not to administer certain 
 
 oaths, ih. 
 s. 14, declarations on the transfer of stock, iii. 31 
 s. IC), to prove execution of wills, ib. 
 s. 17, in suits on behalf of the Crown, ib. 
 8. 18, in the form in tiio .schedule, ib. 
 s. 21, persons making fa\sQ declarations guilty of a 
 misdemeanor, iii. 32 
 construction of the 5 Eliz. c. 9, ih. 
 indictment on that statute, iii. 33 
 
 any court, itc, may direct jirosccutions for jicrjury, itc, iii. 31 
 simplifying indictments for perjury, subornation of i>crjury, Jcc, 
 
 iii. 35 
 certificate of previous trial, iii. ."><) 
 indict incut, 
 
 several persons not to be joined in one indictment, ib. 
 
 venue, ih. 
 
 allegation of time, iii. 37 
 
 necessary statements, ib., et seq. 
 
 variances, it>. 
 
 in statements a.s to courts, kc, ih., ct nrq. 
 
 statements set out continuously, iii. 3'.i 
 
 stating election returns, ib. 
 
 l)roceedings in ("liancery, iii. 1') 
 
 ecclesiastical courts, iii. 11 
 
 county courts, ///. 
 
 spelling of words, ib.
 
 780 Index. 
 
 VVAUVRY—rovdnunl 
 
 traiiHliitioii of Welsli, iii. 12 
 viiriiuicc ill substance and elToct, ih. 
 matter sworn in a joint deposition, ib. 
 variance in information, iii. 43 
 wliere cciuivocal term is used, ih. 
 amendment of variances, iii. 44 
 averment that the comidaint was heard, ih. 
 before whom the trial took i)lace, ih., el scq. 
 adjournment of a quarter sessions, iii. 40 
 stating that tiie defendant was sworn, ih. 
 'wilfully and corrujitly,' iii. 47 
 authority to administer the oath, iii. 48 
 in taxation of costs, ih. 
 statement of holding petty sessions, iii. 49 
 
 of a charge liefore a magistrate, iii. .50 
 in ailidavit under an interpleader rule, iii. 53 
 on a writ of inquiry, ih. 
 before commissioners of bankrupt, iii. 54 
 indictment must state the authority to administer the oath, iii. 
 
 54,55 
 before commissioners of assessed taxes, iii. 55 
 
 it must appear that the oath was material, or it must be alleged to 
 be so, iii. 57, et se(/. 
 
 of the falsity of the matter sworn, iii. Go 
 it need not be shown how the matter is material, iii. 03 
 assignments of perjury, iii, 05, et seq. 
 
 indictment must show which of two contradictoiy depositions is 
 false, iii. 00 
 
 of the innuendo, iii. 07, ei seq. 
 
 conclusion of the indictment, iii. 70 
 the court will in general oblige the defendant to demiu- to a defective 
 indictment, ih. 
 plea o^ autrefois acquit, iii. 71 
 trial, iii. 77 
 
 quarter sessions have no jurisdiction, iii. 71 
 preliminary examination before justices, iii. 72 
 desci'iption of property in indictment, i. 58 
 evidence, 
 
 one witness not sufficient, iii. 72 
 
 one witness and corroborative evidence, ih., et .fcq. 
 
 confirmation as to two out of three assignments, iii. 74 
 
 contradictoiy oath of the defendant, iii. 70 
 
 contradictory statements not on oath, iii. 78 
 
 several witnesses speaking as to several assignments, iii. 79 
 
 to what i)art of the case the rule extends, iii. SO 
 
 admissions, ih. 
 
 judges' notes, ih. 
 
 competency of witnesses, iii. 81 
 
 chairman of quarter sessions, ih. 
 
 judge of coimty court, ih. 
 proof of defendant having sworn in substance and effect, ih. 
 jn-oof of the v'lwJe of defendant's testimony, iii. 82 
 ju'oof of authority to administer oath, iii. 84 
 the oath must be proved as alleged, iii. 85 
 the place stated in the jurat, evidence that the affidavit was sworn 
 
 there, but not conclusive, ih. 
 proof against a bankrupt, iii. 86
 
 Index. 781 
 
 VE^JJ^Y— continued. 
 
 agaiust witness examined by commissioners of bankrupt, iii. '^d 
 
 proof of oath in an answer in Chancery, lirc, ib., et se^. 
 
 proof of materiaUty, iii. 88 
 
 evidence of a deceased witness, ih. 
 
 proof of nisi priits record, iii. 81) 
 
 officer's minute of verdict, evidence of the trial, iO. 
 
 proof that a cause was tried, ih. 
 
 proof of trials, ih., et seq. 
 
 informations before justices, iii. 90 
 
 amended bill in Chancciy, evidence of original, iii. 'Jl 
 
 copy of a bill in abbreviations, insufficient, ih. 
 
 affidavit of marksman inadmissible, unless it is proved to have been 
 
 read over ; sedis, if made by a party who can write, iii. i)'2 
 evidence confined to jjcrsons named in assignments, ih., et sc^. 
 evidence of partnership, iii. 93 
 declai-ation of an agent, when admissible, ih. 
 parol evidence to add to a deposition, iii. 94 
 examined copy of rules of friendly society, ih. 
 signature of prisoner whilst examined as a witness, iii. 95 
 award of arbitratoi-, ib. 
 
 conviction before justices, when inadmissible, ib. 
 evidence of the coiTupt intent of the defendant, ih. 
 defence, iii. 97 
 
 general expressions in one answer explained by another answer, ib. 
 it is no defence that an afiidavit has a defective jurat, ih. 
 or that the affiilavit has not been used, iii. 98 
 or that the affidavit has a defective title, ib. 
 verdict, iii. 99 
 
 j^roof on prosecution for subornation of perjury, ih. 
 misdemeanor nomen oAU'clivum, iii. 100 
 one judgment on several coimts, ih. 
 punishment of perjury and suburnatioii, ib. 
 jutlgmcnt, iii. 101 
 
 indictments for false answers to the questions under the Rcf»>nu 
 
 Act, iii. 102 
 indictment for fixLsely swearing to qualification of a member 
 
 of parliament, iii. 105 
 indictment for fal.se answers at municipal elections, ib. 
 against a magistrate for administering unlawful oaths, iii. lOG 
 false declarations against the i li Will. 4, c. 02, iii. 107, lUS 
 costs in, i. 91 
 PERMITS (EXCISE), 
 
 forging, ii. 783, 78 I 
 PERSON, 
 
 oftences against the, con-solidation Act as to, iii. G70 
 stealing from. — See Rohukky. 
 
 not amounting to robi)ery, ii. 2Sj 
 principals in second degree and accessories, ih. 
 indictment need not negative force or fear, ih. 
 force and fear no answer to the charge, ih. 
 what sulficicnt removal from the pci"bon, ih. 
 PEIISONATION, 
 
 false, ii. 880, et .w/.— Sec F.\i.se Peksox.vtion. 
 of owners of stock, ii. 718, 7''2 
 of bail, ii. 890 
 PETIT LAllCENY, 
 abolished, ii. 124
 
 7.S2 J ikU'.i'. 
 
 n;TIT TIIKASON. 
 
 to Ik- (U'uiiu!i1 (o 1)0, 1111(1 trcalcil as nninlci-, i. 'ill 
 
 I'll \i;ma(;y act, ii. 7'j'j 
 rii()r()(;i{Ai'ii 
 
 (if rriiniimls, iii. G81 
 rilVSIClAN, 
 
 iiiunlcr liy, i. <»(; I, d so/, 
 
 ntitid pni.i IS liy, ii. ~>\ 1 
 ri( KLOCK KEYS, 
 
 possession with intent, ka., i. 102 ; ii. ;") 1 
 PICK roc KKT, 
 
 nianslaughtei' of, i. G85 
 riCTURE 
 
 in clinivh, etc., injnring, ii. OG/i 
 
 riG, 
 
 killing, with intent to steal, ii. 287 
 maliciously killing, ii. 927 
 PIGEONS, 
 
 tame, larceny of, ii. 235 
 
 killing, wheu not the subject of larceny, ii. 29G 
 PILES 
 
 of dams, etc., removing, ii. 940 
 PILLORY, 
 
 punishment of, abolished, i. 295, note (</) 
 PIRACY.— See Index, Vol. I. 
 
 place where the offence may he committed, i. 10, 253, 2G1 
 in ivhat court to be tried, i. 2G1 
 PLACE, 
 
 stating parish in indictment, i. 24 
 laid in indictment, proof of, iii. 403, et seq. 
 PLAGUE, 
 
 person affected with, going abroad and aftecting others, i. 2GG 
 qucere, whether in any case murder, ib, 
 PLANTATION 
 
 of trees, setting fire to, ii. 934 
 PLANTS, 
 
 stealing, itc, ii. 21 G 
 destroying, kc, ii. 937 
 PLATE, 
 
 foi-gery under Stamp Duties Act, ii. 771 
 PLAY, 
 
 players indictable as an unlawful assembly and riot, i. 3G5, note (/*) 
 playhouses, wheu a nuisance, i. 429 
 PLEAS, 
 
 pleas in abatement, i. 37 
 dilatory plea of misnomer, i. 38 
 autrefois actpiit and convict, ib. 
 in burglary, ib. 
 fur same olfencc, i. 40, 42 
 ditlerent reign, i. 41 
 larceny and false pi'etcnces, //>. 
 murder and manslaughter, i., 42, 43 
 admiuistering poison, i. 44 
 acquittal on coroner's inquisition, ib, 
 concealment of birth, ib. 
 assault, ib. 
 on indictment unamended, ih. 
 
 against prisoners and others, i. 45
 
 Index. 733 
 
 PLEAS — continued. 
 
 for perjury, i. 4G 
 against insolvent debtor, ih. 
 
 for burglary after acquittal for murder, ih. 
 as accessory after acquittal as principal, i. 182 
 several chattels stolen, previous acquittal as to one, i. 47 
 where first indictment bad, ih. 
 two indictments in same form, ditlerent facts, i. 48 
 plea to jurisdiction, i. 52 
 
 of not guilty, effect of, iii. G37 
 court ordering it to be entered, ib. 
 PLEDGING 
 
 goods intrusted to factor or agent, ii. 393 
 POISON, 
 
 laid by several, and taken in the absence of all, all are principals in the 
 
 murder, i. 161 
 administering, to procure miscarriage of a woman, i. 853 
 with intent to murder, i. 'J 11 
 attempting, &c., i. 913 
 maliciously, i. 915 
 POLICEMAN, 
 
 murder of, i. 708 
 embezzlement by, ii. 404 
 POLICE SUPERVISION.— See Previous Conviction. 
 POLYGAMY.— See Bigamy. 
 POND, 
 
 breaking down dam of, ii. 941 
 poisoning fish in, ib. 
 POOR LAW OFFICERS, 
 assaults on, costs, i. 90 
 proof of orders of Poor Law Board, iii. 40H 
 PORT, 
 
 stealing from vessels in, ii. 307 
 POSSE COM IT AT US, 
 
 neglecting to join, i. 250 
 raising, when not a riot, i. 3G4 
 POSSESSION 
 
 of coin, definition of, i. 201 
 in forgery, ii. 73G 
 of naval stores, ii. 495, 49G 
 POST-OFFICE.— See Index, Vol. 1 1, 
 opening or delaying letters, ii. Ill 
 embezzling letters or jiackcts, il>. 
 stealing contents out of letters, ii. 4 12 
 stealing lettcr-l)ag3, kc, sent by mail, ih. 
 stealing letter-bags, itc, sent by packets, ih. 
 receiving i)roperty sent l)y the i)ost and stolon or embezzled, ik 
 fraudulently retaining or secreting letters, ih. 
 stealing printed votes of parliament, kc, ii. 413 
 principals in second degree ami accessorios, ih. 
 endeavouring to ])rocure the commission of un ofloncc ng;uu8t the IV^t- 
 
 offico Acts, ih. 
 venue, ih. 
 
 Admiralty jurisdiction, ii. 114 
 property, how to be laid, ih. 
 punishments, ii. 415 
 interpretation elause, ih. 
 
 olliccrs fraudulently issuing money ordci-s, ii. 133
 
 784 Index. 
 
 IM >S'r Ol'^FIfK — cotidnvpil. 
 
 tt'lrgiiipli iiiuKsa;;cs, ii. l.')! 
 
 forgery of Imiid of rcct'ivcr-;,'cncriil of, ii, 7^0 
 
 ])roof of orders of pustniaster-gcucral, iii. 400 
 rOST-()FFl('l<: MARKS, 
 
 when mid of wliat evidence, ii. 1-7 ; iii. 1^02, .'»I7 
 
 forgery of, ii. 7t>!) 
 
 poBtjioning trial, i. f)'2 
 co.sts of, i. U8 
 rOUNDBKEACir, 
 
 wlietlier indictable, i. .IGO 
 rOWKK OF ATTORNEY, 
 
 is a deed, ii. 82") 
 
 forging, to transfer stock, ii. 748 
 niAC'TlCE, 
 
 Act anicndinG: the, on criminal trials, iii. G7G 
 rilEGNANT WOMEN, 
 
 ho who counsels to murder the child is accessory to the murder, i. 170 
 
 murder in attempting to procure abortion, i. 7G0 
 
 administering poison, &c. to procui'e miscarriage, i. 853 
 
 ruEss, 
 
 power to impress seamen, i. 730 
 
 killintr on flight of party impressed, i. 7G8 
 PRESUMPTIONS, 
 
 nature and instances of, iii. 320, et seq. 
 PRETENCES.— Sec False Pretences, 
 PRETENDED TITLES, 
 
 sale of, i. 359 
 PREVENTION OF CRIMES ACTS, 
 
 statutes, iii. G80, G91, 092 
 PREVIOUS CONVICTION, 
 punishment, etc., i. Go 
 form of indictment for, i. G7, GS 
 conduct of trial for, ib. 
 proof of, i. 69, 70 ; iii, 416, 424 
 proof of identity, i. 70 
 j)roof of, in answer to good character, i. 71 
 special oftbnces by persons twice convicted, i. 76 
 provision as to children of woman twice convicted, i. 78 
 PRIMARY EVIDENCE, 
 
 what is, iii. 328 
 PRINCIPAL. — Sec Accessory. 
 in the first degree, i. 156 
 in the second degree, ih. 
 
 termed aider and abettor, ib. 
 
 sometimes accomplice, ib. 
 formerly considered accessory at the fact, ib, 
 
 and not triable till principal convicted, ib. 
 must be charged with being pi*eseut, aiding, and abetting, i. 157 
 how far he must be jiresent at the commission, ib. 
 what shall constitute such presence, ib., et seq. 
 there must be some participation, i. 157 
 assisting a servant, knowledge of authority, i, 158 
 all present principals though one only acts, L 157 
 must be near enough to assist, i. 158 
 throwing goods out of window to an accomplice, i. 159 
 community of purpose at the time, i. IGO 
 by means of an innocent agent, i. 160, 161
 
 Index. 785 
 
 Vm.'i^GWAL— continued. 
 
 in a crime dune in prosecution of some unlaivfid pariiose Iw several, i. 
 162 
 
 where there is a general resolution against all opposei-s, i. 103 
 indictment against, i. IG-i 
 punishment of, under Consolidation Acts, i. 81 
 the same person may be a principal and an accessory in tho same fuhmy, 
 i. 1G4 
 where he may not be charged as both in one indiclmeut, i. l(j|, 
 
 note [v) 
 a man cannot be indicted as, after an acquittal as accessory before the 
 fact, i. 182 
 PRINCIPAL IN SECOND DEGREE, i. ."ifj.—See Accessouies. 
 PRISON-BREAKINC— See also Rescue and Escape. 
 definition of, i. 577 
 felony at conunon law, ib. 
 by tlie 1 Edw. 2, st. 2, ib. 
 of the regularity of the imitrisonmeut, ih. 
 
 of the nature of the crime for which the party was imprisoned, i. .")78 
 of the nature of the breaking, i. 571) 
 escape of the party, ib. 
 proceedings for, i. 580 
 
 indictment, evidence, and punishment, ib. 
 where the party breaking prison is a convicted felon, ///. 
 by convicts in the Millbauk, Parkhurst, and Pcntonvillo itcnitcntiarv, i. 
 581, 590, et seq. 
 PRISONER, 
 
 money found ujjon, i. 85 
 PRISONERS' COUNSEL ACT, 
 
 prisoner entitled to copies of depositions, iii. ■t2'.», cl .vy. 
 entitled to full defence by counsel, iii. 12 'J, note. 
 PRIVATE PERSONS, 
 
 suppression of affrays by, i. 7 1 4 
 
 as to their right to enter with force wliou tliey have legal title, i. I<U 
 bringing felons to justice, killing, i. 71 1 
 authority of, to arrest, itc in cases of felony, ib. et saj. 
 PRIVILEGED COMMUNICATIONS, 
 
 between client and solicitor and counsel, iii. 531) 
 
 rule confined to legal advisers, iii. 5-10 
 
 ar])itrator, iii. 5'1:1 
 
 interpreter, agent, clerk, ib. 
 
 person consulted as solicitor not being one, ib. 
 
 solicitor not consulted as such, iii. 512 
 
 where two parties em[)loy the same solicitor, ib. 
 
 conununications in the presence of l)otli parties, iii. 511 
 
 what sort of communications are privileged, iii. 542, <( *?»/. 
 the general rule, what, iii. 5 13 
 solicitor not boiuul to itroduce or state the coutcntiJ of deeds, iii. 51 1 
 
 except for purpose of ideutilicatioii, il>. 
 tho privilege extends to all knowledge liowevcr obtained, ib. 
 solicitor not allowed to proilucc documents, ib. 
 cases as to forged instruments, iii. 515, ft sen. 
 
 forged wills, //'. 
 solicitor compelled to proiluco forged document, iii. 540 
 privilege does not apply to illegal transjictious, iii. 548 
 as to what facts a solicitor may be cxiinnned, iii. 540, ft «"/. 
 documents produced in court bv one party and bccu by the otlur, ui. 
 
 5^^1 
 vf.i. Ill- 3 r.
 
 78 G Index. 
 
 riUVIT.F/;KD fOMMUNlCATIONS— m»//«2/^r/. 
 
 II person iiiti'iT.stcd cjumot compel tlio production, iii. 551 
 the coii(i(lcnco docs not ceiisc hy solicitor l)ecoiiiiiig iiiterestod, iii. 552 
 solicitor civiinot iiso conrideiitiiil cornmuniciition on iiis own buliiilf, ih. 
 connnnniciitions to gfiin infornuxticjn, il>. 
 croHs-cxiiniinatioii of solicitor, iii. ih. 
 
 where a party is uot bound to i)roducc, ho is not hound to state the con- 
 tents, il>. 
 how tlio (piestion nwiy be raised and decided, ib. 
 informers, iii. 553 
 nLient of government or police, ih. 
 the rule docs not ajjply to ordinary prosecutions, ih. 
 oflicial conniiunications, iii. 554 
 questions contrary to state policy, ih. 
 
 who is to decide as to tiic j)rod notion of a document, ib. 
 transactions of privy council, iii. 555 
 before grand jury, ih. 
 House of Commons, iii. 556 
 ITvIVY COUNCIL, 
 
 transactions in, privileged, iii. 555 
 proof of orders of, iii. 408 
 PRIZE FIGHT, 
 
 death by, i. 818 
 PRIZE MONEY, 
 
 forging to obtain, ii. 794 
 PROBATE, 
 
 the seal of court of, proves itself, iii. 418 
 conclusive evidence of will generally, ib. 
 not so on indictment for forgery, ib. 
 PROCESS.— See tit. Arrest. 
 
 obstructing process, i. 55S, et seg. 
 
 opposing arrest upon criminal process, ih. 
 giving assistance to persons pursued on suspicion of felony, tb. 
 in places of sixpposed privilege, i. 559 
 as to the lawfulness of the arrest, ib. 
 by rescue of the party arrested, i. 560 
 by rescuing goods distrained, poundbreach, itc, i. 560 
 forgery of, ii. 740, 747 
 PROCLAMATION, 
 
 proof of, iii. 408, 409 
 PROMISSORY NOTE, 
 stealing, ii. 223 
 forging, ii. 819 
 
 causing to be made by force or threats, ii. 81 
 by fraud, ii. 525 
 PROPERTY, 
 
 definition of, in Laixeny Act, ii. 81 
 real or personal, injuring, ii. 967 
 PROPERTY TAX, 
 
 forging certificates relating to, ii. 786 
 PROSECUTION, 
 costs of, i. 93 
 
 commencement of, what, and how proved, i. 626 
 PRO V 1 DENT SOCI ETl ES, 
 
 statute as to, iii. 703 
 PROVISIONS, 
 
 unwholesome, selling, i. 268 ; ii. 512 
 enhancing the price of, i. 350
 
 Index. 787 
 
 PROVISIONS— coH</H«ef7. 
 
 undue abatement of their value, ih. 
 PUBLIC BOOKS, 
 
 wheu evidence and how proved, iii. 426, 433 
 PUBLIC BRIDGE, 
 
 injm"ies to, ii. 942 
 PUBLIC BUILDINGS, 
 
 settino; fire to, ii. 902 
 PUBLIC COMPANIES, 
 
 securities of, steaUng, ii. 223 
 
 forgery relating to stocks in, ii. 748. — See Directors. 
 PUBLIC FUNDS, 
 
 securities relating to stock in, stealing, ii. 223 
 
 forgery relating to stocks in, ii. 748, et seq. 
 PUBLIC HEALTH, 
 
 offences affecting, i. 2G6, et seq. 
 PUBLIC OFFICERS.— See tit. Officers. 
 PUBLIC STORES.— See Stores, ii. 494 
 PUBLIC WORSHIP, 
 
 disturbance of, i. 398, et seq. — See tit. Disturranxe. 
 PUNISHMENT.— See tJie Titles of the respective Offences. 
 
 of felonies, not punishable by any statute except 7 «t 8 Geo. 4, c. 28, i. 05 
 PURPORT, 
 
 meaning of, in indictments, ii. 097, et seq. 
 
 Q. 
 
 QUAKERS, 
 
 affirmations by, iii. 010. — See Oaths. 
 QUARANTINE —See Lndex, Vol. I. 
 neglecting, i. 203, et seq. 
 forging certificates relating to, ii. 804 
 QUARTER SESSIONS, 
 
 jurisdiction of, i. 51 ; iii. 040 
 in ofiences at sea, i. 15 
 offences not triable by, i. 51 
 frauds by trustees, ib. 
 bankrupts triable, ib. 
 poaching, ib. 
 bribery, ih. 
 false personation, ih. 
 during assizes, i. 52 
 plea to jurisdiction, ih. 
 QUAY, 
 
 stealing from, ii. 307 
 destroying wall, itc. of, ii. 010 
 QUESTIONS, 
 
 to prisoners, iii. 5U3 
 
 R. 
 
 RABBITS, 
 
 larceny of, ii. 238 
 
 taking, in a warren, ii. 301 
 RAILWAY, 
 
 servants guilty of mi.sconduct, i. 98S 
 
 meaning of terms, i. 989
 
 788 Index. 
 
 WMLW k\-rontmued. 
 
 pliiciii;^ wood, itc, on, with intent to endiiiif^or, i. DSD 
 ciustinif atone, kc, nt c!irriii;,'e, with intent to endjinger, ih. 
 nets or oniisHionH cndangerin;^ I)ii.sscnL;ers, i. 9D0 
 placing wood, itc, witli intent to obhtruct, ih. 
 obstructing engines, i. DUl 
 injury to telegruplis, ih. 
 attempt to injure, i. *.)'J2 
 railwiiy wlien complete, ih. 
 
 what is a wilful act, i. 00:5, 091 
 
 wliat a malicious act, ih. 
 as to tiie intent, i. 00.> 
 
 venue of uHence committed on a journey l)y, i. OOG 
 KAILWAY COMTAXIES, 
 
 false return l)y otKcers of, ii. 307 
 llailway Companies Securities Act, /6. 
 regulation of llailway Act, 18G8, ih. 
 HAM, 
 
 stealing, kc, ii. l'S7 
 killing, with intent to steal, ih. 
 maliciously killing, ii. 027 
 TvArK— See Ixdkx, Vol. I. 
 
 definition of the ofteuce, i. 858 
 
 jumishment of, ih. 
 
 aiders and accessories, i. 859 
 
 persons capal)le of committing, i. 110, 859 
 
 jiersons on whom it may be committed, i. 859 
 
 in what the crime consists, i. 8G0, et seg. 
 
 rape by passing for a woman's husband, i. 861 
 
 by pretence of medical treatmeut, i. 862 
 
 penetration, i. 8G3 
 
 e»t/.s-,s/o seyjiinis, i. 864 
 indictment, i. S(J5, et seq. 
 party ravished a competent witness, i. 866 
 
 her complaints, when admissible, i. 867 
 statements in the presence of the prosecuti'ix, i. 869 
 punishment of accessories, ih. 
 conviction of an attempt, i. 870 
 
 not triable at sessions, ih. 
 assault with intent to ravish, ih. 
 carnal knowledge of female children, i. 871 
 by an infant, i. 110 
 indictment for attempt to commit, need not negative the commission, i. 189 
 
 murder by, i. 673 
 REAL PRO PERT Y, 
 
 deeds relating to, stealing, etc., ii. 2'20 
 injuring, itc, ii. 067 
 REBELS, 
 
 excuse for joining, what niav be, i. 139 
 RECEIPT, 
 
 forgery of. — See tit. Forgery, ii. 810, 832, et seq. 
 RECEIVERS.— See Index, Vol. II. 
 
 at common law receiving stolen goods only a misdemeanor, ii. 463 
 
 a felony by statute, ih. 
 prcnent emxctments, ih. 
 
 where principal guilty of felony, ih. 
 
 indictment k<r stealing and receiving, ii. 464 
 
 separate receivers may be included in tame indictment, ib.
 
 Index. 781) 
 
 RECEIVERS— fo?2/wn<ra\ 
 
 on indictment for jointly receiving, persons may be convicted of 
 
 separately receiving, ii. 4G5 
 receiving, where princijial guilty of a misdemeanor, ih. 
 receiver where triable, ib. 
 
 where original oftence punishable on summary conviction, ih. 
 receivers of property in one part of the United Kingdom where 
 
 stolen in another part of it, ib. 
 oi'der when a pawnbroker is convicted, ih. 
 when enactments apply, ii. 46G. 
 
 who is a receiver — distinction between receiver and principal, ii. 4G7 
 form of indictment — venue, ii. 478 
 trial evidence, ii. 483 
 
 principal felon a witness, ih. 
 receiver may controvert guilt of principal, ih. 
 restitution of stolen property, i. 83, ii. 488 
 
 of unlawfully receiving tackle or goods cut fi'om or left by ships, ii. 508 
 receivers of cargo, goods, &c., stolen on the Thames, ii. 509 
 RECOGNIZANCE, 
 
 under Vexatious Indictments Act, i. 3 
 to keep the peace in felony, i. 81 
 
 in misdemeanor, ib., 198 
 forging, ii. 74G 
 
 binding personally by, to attend as witness, iii. -595 
 RECORDS, 
 
 stealing, itc, ii. 221 
 forging or altering, ii. 740, et seq. 
 proof of, iii. 413 
 REGISTER, 
 
 of birtlis, deaths, and marriages, proof of, iii. 42G 
 births and deaths at sea, iii. G89 
 of criminals, iii. G81 
 
 of deeds, forgery of, ii. 814 
 marriage, etc. forging, ii. 80G 
 copies of, forging, &c., ii. 807 
 REGRATING, 
 
 statutes as to, repealed, i. 349 
 RELIGIOUS ASSEMBLIES, 
 
 contemptuously, &c., disquieting or distiu'bing, i. 398, et seq. 
 REPEAL OF STATUTE, 
 
 effect of, i. 198 
 REPLY, 
 
 evidence in, iii. 5G4 
 
 where prisoner calls evidence as to character, iii. 431 
 right to by law officers of tlie Crown, ib. 
 REQUEST, 
 
 for the delivery of goods, itc, forgery of, ii. 819 
 cases as to such requests, ii. 872, et si-q. 
 RESCUE.— See Indkx, Vol. I. and see id. tit. Piusox-nnE.VKiXG and Esc.vpr. 
 obstructing process by rescue of party arrested, i. 5.)9 
 rescuing goods distrained, i. 5G0 
 
 freeing another from arrest or imprisonment, i. 582, et seq. 
 rescuing from Court, i. 973 
 
 breaking a prison is not a felony, unless the prisoner cscai)c, i. 583 
 proceedings against rescuers, ib. 
 indictment, ih. 
 jnniiHhincnt, ih. 
 in cases uf misdemeanor, i. 584
 
 790 hnhx. 
 
 \\VJSC\^K—CO,d'nnirJ. 
 
 ftidiii^ a iirisoucr to cRciipe, i. i'>>^\ 
 
 Btatnto respect iii;^ tlio rescuiii;^ o^ prihoiicrs nr aidinj^ llieiii to escape, i. 
 58D, et xiy. 
 
 where the i)arty does not know the j^isuncr's olTeiicc, i. 589 
 inilictinent, i. 588 
 
 ovideiico of jiriaoner'.s conviction, i. .08'J 
 of persons under sentence of transi)ortation. — See tit. Tuansportatiok. 
 of persons from the Millbank penitentiary, i. 590 
 rescuinL? crinnnal lunatic, ih. 
 
 28 it 29 Vict. c. 12(!, aidinr^ prisonei-s to escape, i. 591 
 conveying mask or other thing into prison, iO. 
 RESKliVKD, 
 
 questions of law may be, iii. G 12 
 RESKllVOIU, 
 
 destroying dam, Sec. of, ii. 940 
 
 flood-gate of, ih. 
 removing materials to secure, ib. 
 RESTITUTION, 
 
 of stolen property, i. 83, ii. 284 
 
 of property received with guilty knowledge, ib. 
 
 obtained by false pretences, ib. note (z), ii. G02 
 except negotiable securities, ib. 
 
 in prosecutions of bankers, factors, itc, ib. 
 proceeds of stolen property, ib. 
 after transfer under Factors Act, i. 84 
 
 ■where prisoner pleads guilty, ib. 
 no authority to make an order except as to what has been stolen and its 
 proceeds, i. 85 
 ■when there has been a sale in market overt, ib. 
 ■ft-here a pawnbroker has advanced money, ib. 
 money found on prisoner, ib. 
 REVENUE LAWS, 
 
 offences agixinst, i. 270, iii. 092 
 smuggling, ib. ib. 
 16 ct 17 Vict. 0. 107— i. 270 
 39 & 40 Vict. c. 36, iii. 692 
 false declarations, Ac, ib. 
 
 vessels not bringing to may be fired at, i. 270, iii. 693 
 vessels, ttc, may be searched, i. 271, ib. 
 officers searching ship, ikc. ib., iii. 693, 696, 697 
 persons escaping may afterwards be detained i. 271, 272, iii. 696 
 penalty for making signals to smugglers, i. 272, iii. 695 
 j)roof of not being a signal to lie on defendant, i. 273, ib. 
 any one may prevent, iVc. signals, ib. ib. 
 penalty on pei'sons resisting officera, or rescuing, <kc. goods, i. 274, 
 
 iii. 694 
 assembling to run goods, iii. 694 
 persons shooting at any boat, Szc, or wounding officei'S, tkc, 
 
 guilty of felony, i. 275, iii. 695 
 persons assaulting officers, iii. 694 
 offences on the seas to be deemed to have been committed at 
 
 the place where the offender is taken, iii. 698 
 in whose names indictments to be preferred, ib. 
 
 time, i. 276, iii. 699 
 venue, ib. 
 evidence, iii. 699, i. 276 
 
 defendant's proof, iii. 699
 
 Index. 791 
 
 REVENUE \.k^N^— continued. 
 averments, iii. G99 
 
 punishment after previous conviction, iii. G98 
 killing by firing at smugglers to make them bring to, i. 7G9 ; iii. 093 
 count for common assault not triable in. a foreign country, i. 280 
 REWARD, 
 
 taking, for helping to the discovery of stolen goods, i. 293, ii. 489 
 
 the principal felon may be witness, ii. 490 
 if a person know those who have stolen the property, and receive money 
 to purchase it from them, not meaning to bring them to justice, he 
 is within the Act, though he did not mean to screen them, ib. 
 the money may be paid after the return of the property, ii. 491 
 
 what is the meaning of ' corruptly' and ' pretence,' ih. 
 advertising for return of stolen propci'ty, madelial)le to a penalty, ii. 402 
 limitation of time for bringing action against printer of newspaper, ii. 493 
 for apprehending felons, i. 99, et seq. 
 RICKS, 
 
 setting fire to, ii. 932 
 RING-DROPPING, 
 
 larceny by, ii. 176, e^ seq. 
 
 felony to aid a person to obtain money by, i. 2G2 
 RINGING THE CHANGES 
 
 an uttering of counterfeit coin, i. 231 
 RIOT. — See Index, Vol. I., 364, et seq. — Unlawful Assembly. 
 definition of, i. 364, 371 
 
 any one taking part in a riot is a rioter ; all are principals, i. 367 
 rioters pulling down, etc., churches, houses, mills, etc., i. 368 
 pulling down buildings used for trades and manufactures, ib. 
 engines, &c. for working mines, ib. 
 injuring buildings, ifec, ib. 
 the beginning to pull down must be with intent to demolish the whole 
 
 house, i. 370 
 difference between, and an unlawful assembly, i. 373 
 33 Geo. 3, c. 67— i. 371 
 
 seamen preventing the loading of vessels, i. 372 
 suppression of riots, i. 385 
 indictment for and trial, i. 387 
 punishment for, i. 389 
 killing by officers in, ii. 849 
 
 conspiring to commit, iii. 116 
 RIVERS, 
 
 pollution of, indictable, i. 269 
 considered as highways, i. 520 
 navigable rivers, ib. 
 
 nuisances and obstructions to, within the same principle as those to 
 highways, ib. 
 still highwaj^s, though the course changed, i. 521 
 public not entitled to a towing path at common law, i. 520 
 soil of, whose it is, i. 521 
 
 how the public riglit to use a river may be destroyed, ih. 
 flowing of the tide priind facie evidence that the river is public, ih, 
 obstruction on public rivers, ih. 
 
 cases which have and have not been held so, i. 521, et seq. 
 where owners of adjacent lands may raise the banks of a river, i. 523 
 no defence that a nuisance produces more advantage for other purposes, 
 
 i. 524 
 injury too slight to support an indictment, ih. 
 question for the jury whether a bridge obstructs navigation, i. 525
 
 792 Index, 
 
 WWV.VS—rovthninl 
 
 sunken vessels, i. fiOn 
 
 weir K'*fin^f<J '•}' ^''^ crown before Eilwnrd T. — ih. 
 
 indictment for ohstrnctin^, i. rj.'U) 
 liiihility to clear the pussngc of, il>. 
 olVenccs upon, witliin the fidniiral's jurisdiction, i. 21 
 stcixhng ffoodH on, ii. 3(l7 
 breaking down, tl'c. locks on, ii. 040 
 removing materials to secure banks of, ih. 
 HOAD.— See tit. IIiomwat. 
 
 jjrivatc, set out by Act of Parliament, no indictment lies for not repairing, 
 i. 104 
 ROBr.ERY.— Sec Index, Vol. II. 
 from the person, 
 
 delinition of, ii. 78 
 present enactments, ih. 
 
 robbeiy attended with wonnding, kc, punislimcnt, ii. 70 
 robbery, ii. 78 
 stealing from the person, ih. 
 conviction of assault with intent, ih. 
 assault with intent to rob, ii. 70 
 demanding money with menaces, ih. 
 inducing a person by threats to execute deeds, itc. ii. 81 
 principals in the second degree and accessories, ii. 
 
 82, 117 
 meaning of the word ' property,' ii. 81 
 of tJie felonious; faking, ii. 82 
 
 amount of the property immaterial, ih. 
 the property must be taken against the will of the party, ii. 80 
 the violence or putting in fear, ii. 89 
 
 property obtained by violence, though not used for the purpose, ii. 
 93, et seq. 
 of the fear of injury to the person, ii. 04 
 of the fear of violence to the child of the party, ii. 05 
 of the fear of injury to the property, ib. 
 of the fear of injury to the character, ii. 98 
 the fear of accusation of sodomitical pi-actices, ii. 90, et seq. 
 assault with intent to rob, ii. 114 
 principals and accessories, ii, 117 
 
 the indictment, trial, etc., ii. 118 
 the verdict, ii. 121 
 ROMAN CATHOLICS, 
 
 marriages of, in Ireland, iii. 306, et seq. 
 disturbance of worship of, i. 402 
 ROOTS, etc., 
 
 stealing in gardens, ii. 216 
 
 elsewhere, ih. 
 destroying in gardens, ii. 937 
 elsewhere, ih. 
 ROrE-DAXCERS, 
 
 public nuisances, i. 430 
 ROUT, 
 
 definition and description of, i. 372, et seq. — See Unlawful Assembly — 
 Riot. 
 ROYAL FAMILY, 
 
 marriages of, i. 900
 
 Index. 793 
 
 S. 
 
 SACRILEGE, 
 
 breaking and entering church, etc., and committing a felony, ii. 55 
 
 committing a felony in and breaking out, ib. 
 
 a tower is parcel of the church, ih. 
 
 vestry, ih. 
 
 meaning of the word 'chapel,' ii. 5G 
 
 statement of property in indictment for, ih. 
 
 principals in second degree and accessories, ii. 55 
 SAILOR. — See tit. Seamen and Soldiers. 
 SALMON FISHERY ACT, 1873, ii. 941 
 SALVAGE, 
 
 assaulting persons engaged in, i. 974 
 SAVINGS BANK, 
 
 officers not paying over deposits, ii. 397 
 SO A NDAL UM MA GJA T UM, 
 
 statutes of, iii. 203 
 SCH00LH0U8E, 
 
 breaking into and committing a felony, ii. 74 
 
 with intent, etc., ii. 76 
 SCOLD, 
 
 common, i. 438 
 SCOTLAND, 
 
 marriages in, iii. 305 
 
 divorces in, iii. 2G6 
 
 stealing in, ii. 273 
 
 uttering Scotch notes in England, ii. 825 
 SCRIP RECEIPT, 
 
 forging of, ii. 842 
 SEA.— See tit. Venue. 
 
 judgment for offences at, i. 14 
 SEA BANK, 
 
 destroying, etc., ii. 940 
 
 removing materials of, ih. 
 SEAMEN, 
 
 riotously preventing the loading, ttc. of vessels, i. 372 
 
 aiithority to impress, i. 730 
 
 killing ou flight of party inipressed, i. 7G8 
 
 obstructing from pursuing their occupations, i. 975 
 
 master of vessel forcing on sliorc and refusing to Itring hdUie, i. 902 
 
 forgery and })ersonation to obtain pay, prize-money, [)ensions,»fcc.,ii. 794, 887 
 SE ARC II.— See Revenue. 
 
 for stolen jiroperty, iii. G85 
 SECOND OFFENCE, 
 
 after conviction for first, i. 1S7 
 
 punishment, etc. for second feluuv, i. G5 ; ii. 284, et scr/. 
 SECONDARY EVIDENCE, 
 
 what, iii. 333, 34(5 
 
 no degrees in, iii. 346 
 SECU RIT Y, VALUABLE, 
 
 definition of, under Larceny Act, ii. 223 
 
 stealing, etc., ih. 
 SEDUCTION, 
 
 of girl, i. 877 
 
 conspiracy to seduce, iii. 122
 
 71)1 JiitJe.r. 
 
 SKNTENCI-; 
 
 wliero ufToiKlcr in prison for another crime, i. 81 
 wlion convicted on nx^re tiiiin one charge, i. 82 
 SKNTINKI,, 
 
 niiirdiT 1)V, in [)rcvcii(ing iipiirouch, i. 7:U 
 SKl'AKATlSfs, 
 
 atlinniitiuns liy, iii. ()1<> 
 SKRVANT, 
 
 not excnsed from the coinmisision of a crime by the coercion of lii.s master, 
 
 i. 139 
 soliciting to steal his master's goods, a misdemeanor, i. 189 
 neglecting to provide with necessaries, i. 919 ; iii. 102 
 master ill-treating, i. 947 
 goods in custody of, ownership of, ii. 250 
 
 larceny by, and persons having custody of goods, itc, as servants, ii. 3 1 0, et xei/. 
 offences at common law, ii. 310 
 
 where a party has only the bare charge or custody of goods, the 
 legal possession remains in the owner, and such party may be 
 guilty of larceny, ih. et seq. 
 sheriff's otliccr clandestinely selling goods seized, ii. 311 
 servant taking coal from liis master's cart, ttc, ii. 312, et ser/. 
 money in the possession of the master by the liands of one clerk 
 
 embezzled by another, ii. 314 
 persons hired to drive slicep and cattle, ii. 315, et seq. 
 distinction in cases of this kind between custody and possession, 
 
 ii. 318 
 where the person has not only the custody, but the possession, 
 
 ii. 315, &c. 
 disthiction between servant and bailee material still, ii. 317 
 person entrusted with pony to sell for a fixed sum to one person 
 
 only, ih. 
 servants entrusted with money for particular purposes, ii. 31 9,^? seq. 
 where the property has mei'ely been delivered to the servant for 
 
 the master's use, ii. 325 
 cashier of the bank embezzling bond before put in place of de- 
 posit, ib. 
 seiA^ant embezzling money before it was put in the till, ii. 32G 
 banker's clerk embezzling bank notes before they had been in 
 
 their drawer, ib. 
 questions of evidence, ii. 327, 328 
 servants of the crown, ii. 328 
 form of indictment, ii. 329 
 conviction of simple larceny, ib. 
 of attempt, ii. 330 
 punishment of, ii. 310 
 
 of principals and accessories, ii. 329 
 embezzlement by, ii. 332, et seq. — See tit. Embezzlement. 
 SESSIONS, 
 
 order of, disobeying, i. 5G1 
 jurisdiction of, i. 51 ; iii. 640 
 SEWERS, 
 
 commissioners of, property of, how to be laid, i. 28 
 SHEEP, 
 
 stealing, ii. 287, et seq. 
 
 what is a sutficicnt removal, ii. 288 
 
 part of the animal taken, ib., et seq. 
 
 principals in second degree and accessories, ii. 287 
 
 killing with intent to steal the carcase, ib.
 
 Index. 795 
 
 ^B.^Y.V— continued . 
 
 cutting off part while sheep was alive, ii. 291 
 how sheep are to be described iu the indictment, ih. 
 variances in description, ib. et seq. 
 offence of killing with intent, &c. is local, ii. 292 
 maliciously killing, ii. 927 
 SHERIFF, 
 
 his officer, clandestinely selling goods levied, ii. 311 
 neglect of duty by, how punishable, i. 300 
 extortion by, how punishable, i. 303 
 not to let his bailiwick to farm, i. 310 
 Under-Sheriff, 
 
 extoi'tion by, i. 304 
 sheriff's officer, 
 
 extortion by, ib. 
 SHIP.— See tit. Seamen. 
 
 in service of foreign state, <fec., i. 241, et seq. — See tit. Foreign State, 
 
 running away w^ith, etc., i. 254. — See tit. Piracy. 
 
 forcibly entering merchant ships and destroying goods, <tc., ib. — See tit. 
 
 Piracy. 
 making a revolt in, when piracy, i. 254, 257 
 quarantine by, i. 2G3. — See tit. Quarantine. 
 shooting at a ship or boat, i. 275, 277 
 putting combustibles on board without notice, i. 423 
 placing gunpowder near to, with intent, (fee, i. 954 
 setting ffre to, with intent to murder, i. 912 
 stealing from, ii. 307 
 
 in distress or wrecked, ib. 
 removing parts of ships stranded or wrecked, ii. 508 
 secreting wreck of, ib. 
 selling wreck of, in foreign ports, ib. 
 setting fire to, ii. 958 
 
 attempting to set fire to, ib. 
 placing giuipowder near, with intent to damage, ii. 959 
 damaging otherwise than by fire, ib. 
 exhibiting false signals to bring into danger, ib. 
 removing buoj'S, ib. 
 destroying wrecks, ii. 9 GO 
 setting fire to ships of war, ib. 
 intent to defraud underwriters though the goods were not put on board, 
 
 ii. 9G2 
 seamen endangering life or loss of ship, ii. 9G3 
 act tending to the immediate loss of, ii. 964 
 unseaworthy, sending to sea, iii. 706 
 SHIPWRECKED VESSEL, 
 
 assaults on officers endeavouring to saA'e property, i. 974 
 impeding persons saving his life from, i. 914 
 plundering any part of tackle or cargo of, ii. 307 
 oll'cring shipwrecked goods for sale, ii. 308 
 as to the meaning o( f/oods, ih. 
 principals, accessories, and abettors, ib. 
 property iu wreck, how laid, ii. '2i)o 
 SHOOTINO, 
 
 at any ship or boat, oHiccr, S:c. in resistance to revenue laws, i. 275, 277 
 at persons maliciously, i. 914, el seq. 
 
 with intent to murder, maim, ifec. or resist apprehension, ib. 9-12 
 SHOP, 
 
 breaking, itc. and committing a felony tlicreiu, ii. 74
 
 71M; Ii/dr.r. 
 
 SI 101' rn„ll,nir,l. 
 
 with iiilfiit tn crimniifc, A'C, ii. 70 
 
 ]iriiii'i|iuls in koooikI doj^ruo iind accessoricK, ii. 71 
 
 scttiiif,' liru to, ii. itOI 
 SIIItOUDS, 
 
 nwiUTsliip of, ill wlioiii to he liiid, ii. L'.'tO 
 
 siiian'.s, 
 
 injuring; and destroying, ii. i*3 I- 
 sti'aling, ii. L'13 
 SIGNALS,' 
 
 making lights, kc. on shore, to bring sliips into danger, ii. 0r)9 
 signals to smugglers, i. 272 ; iii. G'J5 
 SKJN MANUi\L, 
 
 ovideuco of, i. OOG 
 SILK, 
 
 destroying, in the course of manufacture, ii. 91!) 
 SLANDER.— See tit. Libel. 
 
 slanderous words, when indictable, iii. 178 
 SLAVE TRADE, 
 
 forgery of certificates, kc. relating to, ii. 803 
 SLAVES, 
 
 dealing in slaves, i. 338, et seq. 
 5 Geo. 4, c. 113, /6. 
 
 dealing, ikc. in, on the high seas, piracy, Sec, ih., et seq. 
 seamen serving in slave sliips guilty of a misdemeanor, i. 341 
 offenders informing within a certain time exempjted, i. 341 
 indictments, i. 343 
 Slave Trade Act, 1873— i. 345 
 trial of offences, i. 347 
 SMALLrOX, 
 
 exiiosing a person affected with, in a place of public resort, indictable, 
 
 i. 2G6 
 inoculating for, whether indictable, i. 2G7, note (J) 
 vaccination for, i. 2G8 
 SMUGGLING, 
 
 definition of, i. 270 
 
 killing, by fii-ing at smuggling vessel to make her bring to, i. 7G9 ; iii. C93 
 offences of — See tit. Revenue Laws. 
 SOCIETIES, 
 
 illegal, i. 372, et seq, — See tit. L'nlawful Assemblies. 
 SODOMY, 
 
 definition of offence, i. 879 
 punishment of, ib. 
 proof of carnal knowledge, ib. 
 attempt or soliciting to commit, i. 879, 881 
 aiders and accessories, i. 880 
 indictment and evidence, ib. 
 accomplices, i. 881 
 SOLDIERS AND SAILORS, 
 
 serving foreign states. — See tit. Foreign States. 
 seducing to desert or mutin}-, i. 251, et seq. 
 37 Geo. 3— i. 251 
 
 seducing to mutiny — trial — indictment, ib. 
 sailor in a sick hospital, within the Act, i. 252 
 
 pci"suading soldiers to desert, //;. 
 consequence of desertion to the party deserting, i. 251, 252 
 fraud by pretending a power to discharge, ii. 515 
 fraudulent enlistment as, ib.
 
 Index. 797 
 
 SOLDIERS AND ^MLOV.^— continued. 
 
 forgery and false ])ersouatioii to obtain prize-money, pay, pensions, itc, 
 ii. 794, et seq., 887 
 SOLICITING 
 
 to murder, i. 906 
 SOLITARY CONFINEMENT, 
 
 under Consolidation Acts, i. 78 
 SPENCEAN 
 
 societies, unlawful assemblies, i. 382 
 SPIRITUAL PERSON, 
 
 taking land to farm, to forfeit ten pounds, but not indictable, i. 19-3 
 SPRING GUN, 
 
 persons setting or placing spring-guns, man-traps, &c. guilty of a misde- 
 meanor, i. 987 
 proviso for traps for destroying vermin, ib. 
 persons permitting guns, traps, &c., set Ijy others, to contiiuic, deemed to 
 
 have set the same, ib. 
 proviso for guns, ti'aps, Ac. set for the protection of dwelling-houses, 
 
 ib. 
 cases on the former Act, ib. 
 STABBING, 
 
 maliciously, with intent to murder, Szc, i. 911, et seq. 
 STABLE, 
 
 setting fire to, ii. 901 
 STACK, 
 
 of corn, &c., setting fire to, ii. 932 
 attempting to set tire to, ib. 
 STAGE COACHES, 
 
 nuisances by, i. 471 
 
 forgery in respect of licenses for, ii. 817 
 goods stolen from, on a journey, i. 5 
 STAGE-COACHMEN, 
 
 furious driving, &c. of, i. 986 
 overloading their coaches, i. 840, note (x) 
 STAMPS, 
 
 forgery of an instrument on unstamped paper, ii. 655 
 forging and transposing, ii. 771, et seq. — See tit. Fokgkry. 
 unstamped documents admissible, iii. 438 
 STARVING 
 
 appi'entice or servant, i. 949 
 STATEMENT OF ACCUSED, 
 before magistrate, iii. 499 
 
 present enactments, ib. 
 mode of taking prisonei-'s examination, iii. 502 
 
 magistrate patting (juestions to prisoner, iii. 503 
 in what words to be taken, ib. 
 not to be taken on oath, ib. 
 signing by magistrate and jn-isoner, ib. 
 proof of, impeaching same, iii. 504 
 
 when parol evidence of, admissible, iii. 505 
 
 irregular, may be used to refresh memory, iii. 506 
 
 impeaching statement returned by magistrate, ib. 
 
 parol evidence to add to, iii. 507 
 
 where it refers to deposition of a witness made before all the witnesses 
 
 examined, ib. 509 
 confession of one offence when examination as to another, iii. 510 
 may be i)ut in in reply, ib. 
 not before magistrate, iii. 487, 488, 489
 
 798 Index. 
 
 STATIONKPvS' COMrANY, 
 
 f(irj,'iiig ivgi.stcr of, ii. I'M) 
 ST AT I IK, 
 
 injuring, ii. 9(55 
 STATU'l'l-:, 
 
 oUbnccs croaicd by, when indict iil)lc!, i. IHG, 1!)2, cL .s^y. 
 when not indictiiMc, i. 194 
 
 rule as to whether the prcscnl)ed mode of proceeding is single or cumula- 
 tive, //'. 
 whiit \V(irds in, create a felony, i. LSG 
 disobedience to, i. 19 1, ct srq. 
 to obstruct tlic execution of i)0wers granted by, is an ofrencc at common 
 
 law, i. 191 
 rule for intci']irctation of, by 7 <fe 8 Geo. 4, c. 28, s. 14 — i. 2 
 cflcct of rejjcal of statute, i. 198 
 RTATUTK LAW REVISION ACT, 187G, iii. G91 
 tSTKA LING.— Sec tit. Lauckny. 
 
 in a dwelling-house, ii. 64. — Sec tit. Dwelling-House. 
 
 in a building within the curtilage, ii. 70. — See tit. Curtilagr. 
 
 in any schoolhouse, shop, warehouse, or counting-house, ii. 74 
 
 from person, under circumstances not amounting to robbery, ii. 285 
 
 et seq. 
 from vessels in port, river, &c., ii. 307 
 naval or military stores, ii. 435 
 STEAM ENGINES, 
 nuisances by, i. 443 
 
 regulations of, 1 ct 2 Geo. 4, ib. 
 rioters destroying, i. 3G8 
 destroying those used in manufactures, ii. 949 
 in agiiculture, ii. 954 
 in mines, ii. 945 
 STERLING COIN, 
 what is, i. 200 
 STOCK, 
 
 securities in, are valuable securities, ii. 223 
 
 transfer, etc. of, forgery relating to, ii. 748, et seq. — See tit. Forgery. 
 STOLEN GOODS.— See tit. Receivers. 
 restitution of, i. 83 
 
 taking reward for helping a person to, ii. 489 
 advertising a reward for the return of, ii. 492 
 STORES, 
 
 naval or military, 
 
 larceny and embezzlement of, ii. 435 
 
 unlawfully receiving or having possession of public stores, ii. 494, 
 
 et seq. 
 Consolidation Act as to public stores, ii. 495 
 interpretation clause, ii. 404 
 marks appi'opriated for puV)lic stores, ii. 495 
 obliteration with intent to concealment, ib. 
 power to stop suspected persons, ib. 
 unlawful possession of stores, ib. 
 sweeyiing near dockyards, «fec., ib. 
 
 dealer found in possession of stores and not accounting for same, ii. 
 496 
 criminal possession explained, ii. 496 
 dealer in old metals, ib. 
 provision for regimental necessaries, ii. 497 
 
 summary proceedings for otlonces, kc, ib.
 
 Index. 799 
 
 STORES— co?i<m?<«?. 
 
 repeal of certain Acts, ii. 497 
 The War Department Stores Act, 1867— ii. 499 
 cases decided on former statutes, ii. 500 
 knowledge of marks, ii. 502 
 conviction of an attempt, ii. 507 
 STRANGLE, 
 
 attempt to, i. 913 
 SUBJPXTION 
 
 to the power of others, when an excuse for committing a crime, i. 139 
 SUBORNATION.— See Perjury. 
 SUBPCENA, 
 
 for witness, iii. 596, 598 
 SUFFOCATE, 
 
 attempt to, i. 913 
 SUING 
 
 in the name of a fictitious plaintiff, i. 363 
 SUMMING UP 
 
 of evidence on trial, iii. 676 
 SURETY OF THE PEACE, i. 80 
 
 under Consolidation Acts, i. 81 
 SURPLUSAGE, 
 
 doctrine of, iii. 392 
 
 examples of, ib. 
 SURVEYOR OF HIGHWAYS.— See Highways. 
 
 T. 
 TACKLE, 
 
 setting fire to, with intent to murder, i. 913 
 
 cut from or left by ships, unlawfully receiving, ii. 508, et seq. 
 
 used about mines, damaging, ii. 946 
 TELEGRAPHS, 
 
 inJTU-ies to, i. 991 
 
 obstructing messages by, ih. 
 
 oflfences relating to messages by, ii. 433 
 attempts, i. 992 
 TENANCY, 
 
 fact of, maybe proved without producing lease, but not the terms of it, 
 iii. 348 
 TENANTS, 
 
 chattels and fixtures let to, larceny of, ii. 240, 438 
 
 injuring houses and buildings, ii. 926 
 
 other injuries by, ii. 894 
 TENANTS IN COMMON, 
 
 larceny by, ii. 239 
 THAMES, 
 
 receiving cargo, goods, itc. stolen on, ii. 509 
 
 prevention of thefts on, ifi. 
 THREATS AND THREATENING LETTERS, 
 
 at common law, iii. 231, 226 
 offences by statutes, iii.J232 
 
 letters threatening to murder, if>. 
 
 to burn or destroy houses, ships, itc, iii. 233 
 
 demanding money with menaces, iii. 234 
 
 threatening to accuse of crimes, iii. 235 
 
 infamous crime defined, <7'.
 
 800 Index. 
 
 'J'llKKATS AND T1IIIKATI:NIN(J LVTWAV^—innilHwul. 
 
 iiccuHiii};, Ac. with iiitout to extort, iii. L'.'}5 
 
 iiiinmterial from whom the tlucats proceed, iii. l'.'5G 
 
 ])riiici]tulH iiiid iiccessorics, ih. 
 
 |iuiiishmc'iit, iii. 2."5() 
 cases on the former statutes, iii. 23G, et nfq. 
 
 wliat was a demand, ih. 
 
 other letters evidence to explain the letter in rpiestion, iii. 2.3,S 
 
 i|uestion left to jury whether a letter contained a threat to murder, iii. L'.">!) 
 
 letter ou^tit by necessary construction to import a threat to huiii, iii. JIO 
 
 but <|uestion may be left to jury, ih. 
 
 former statute only ajiplicd to crimes subject to infamous iMiiiiHhinent, 
 iii. 241 
 
 letter stating that the writer had overheard persons agree to injure pro- 
 secutor's jiroperty, ili. 
 
 if letter contain an application for money, accompanied by a threat uot 
 proceeding from the writer, it is within the statute, iii. 'l\'l 
 
 whether the threat be within the statute depends on the general uatui'C of 
 the evil threatened, ib. 
 
 it is for the jury to decide to whom the letter is sent, iii. 243 
 
 so whether it contains threats, iii. 244 
 
 letter containing a threat to nun-der, iii. 24.5 
 
 threatening to supi)ort a charge already made, ih. 
 
 tia-catcning to burn the house of A. in the occupation of B., iii. 24ij 
 
 threatening a landlord to bui'u his house is within the new Act, ih. 
 
 meaning of ' accuse ' and ' threaten to accuse,' iii. 247 
 
 to what the words ' without reasonable and probable cause ' apply, ih. 
 
 threatening to burn standing corn, iii. 248 
 
 letter signed with initials, iii. 249 
 
 a charge of intent to extort money proved by intent to extort bill of 
 exchange, ih. 
 
 sending a letter knowing the contents, ih. 
 
 case of wife writing and husband delivering letter, iii. 249 
 
 sending by post or indirect means, iii. 2-50 
 
 letter formerly must have been sent to the person threatened, iii. ib. 
 
 where letter directed to one person is intended to reach another, iii. 2-31 
 
 affixing letter to a gate, ib. 
 
 evidence of sending and uttering, ih. 
 
 the indictment must set out the letter, iii. 252 
 
 nuist aver from whom the money was demanded, and who was threatened 
 to be accused, ih. 
 the intent must be correctly stated, iii. 2.53 
 
 variance as to crime charged, ih. 
 
 express demand by words unnecessary, ib. 
 
 menaces by pretending to set fire to a rick, ^b. 
 
 threatening to accuse a clergyman of fornication, iii. 254 
 
 what are sufficient menaces, iii. 255 
 
 inunaterial wliether the party menaced has any money with him, iii. 257 
 
 evidence of an accusation of an infamous crime, ib. 
 
 evidence of solicitation, iii. 259 
 
 the jury are to decide wliat the accusation was intended to be, ib. 
 so whether there was an intent to extort, iii. 2G0 
 
 guilt or innocence of prosecutor immaterial, ih. 
 
 evidence of the meaning of the letter, ib. 
 place of trial, iii. 2G1 
 
 post-office marks, iii. 262 
 
 declarations of prisoner admisailde, ib. 
 
 prior and subscqueut letters, iii. 2G3
 
 Index. 801 
 
 THRESHING-MACHINES, 
 
 destroying, &c., ii. 954, et seq. 
 
 when taken to pieces, ib. 
 TIME, 
 
 proof of, iii. 404 
 
 stating, in indictment, i. 35 
 
 in indictment for burglary, ii. 43 
 TITLE, 
 
 document of, to goods, ii. 222 
 to land, ii. 220 
 TITLES, 
 
 pretended, buying and selling, i. 359 
 TOLL-HOUSE, 
 
 injuring, ii. 942 
 TOWING-PATH, 
 
 effect of an act to make a new course for a river upon, i. 4G8 
 
 public have no right to, at common law, i. 520 
 TRADE, 
 
 offensive, carrying on, when a nuisance, i. 419 
 
 cheating in, ii. 617 
 
 setting fire to buildipg used in, ii. 901 
 TRADE DISPUTES, iii. 159 
 TRADE MARKS, 
 
 statute relating to, ii. GIO, et seq. 
 
 construction of terms, ib. 
 
 forging ti'ade marks, &c., ib. 
 
 applying forged ti'ade marks, etc., ii. Gil 
 
 alterations of, deemed to be forgeries, ii. 012 
 
 making articles with false quantities, ib. 
 
 selling articles so marked, ib. 
 
 description in indictments, iii. 613 
 
 intent to defraud, &c., need not be stated, itc, ib. 
 
 abettors, &c., ib. 
 
 punishments, ib. 
 
 warranty where trade mark is used, ii. G14 
 
 whore number, quantity, Arc, is mai'kcd, ib. 
 
 Trade Marks Registration Act, 1875, 16. 
 TRADE UNION ACT, 1871, iii. 159.— See tit. CoNsniucY. 
 TRANSFER OF LAND ACT, 
 
 false statement under, ii. 814 
 TRANSPORTATION.— See Index, Vol. L 
 
 penal servitude substituted for, i. 7*3, GOO ; iii. GIG 
 TRAVERSING OR POSTPONING TRIAL, i. 52 
 TREASON.— Sec tit. Petit Tkeason. 
 TREASURE TROVE, 
 
 case as to, ii. 255 
 
 ownership of, how laid, ib. 
 TREES, 
 
 stealing, in any park, etc., ii. 213 
 elsewhere, ii. 215 
 
 injuring and destroying in any park, itc, ii. 93 t 
 elsewhere, ib. 
 TRESPASS, 
 
 not indictable, i. 107 
 
 cons})iracy to commit, iii. 121 
 TRIAL. — See Indictmicnt. 
 
 postponement of, wiiere a child is incapable of giving evidence, iii. G12 
 
 not to instruct an adult, iii. GIG 
 
 VOL. III. 3 F
 
 802 IikIcj: 
 
 TIMCCKR, 
 
 (liiiw iii[^, witli intent to shout, i. Iii;{, 018, el *></. 
 
 Tiu:.s'i'i«:i':, 
 
 definition of, ii. SOi) 
 
 fnimhilontly disposing of j)ro])crty, ii. 301 
 
 no prosocntion witliont Siinctiuu of ajndgc, ikc, ih. 
 
 who is a trnstco within the Act, ii. 100 
 Tl'ILMMKE ACT.— Sec tit. Highway. 
 TUKNPIKK GATE, 
 
 destroying, itc, ii. 12 
 TURN PIKE KEKPEJl, 
 
 »picstion of tolls not triable on an indictment against, for extortion, i. 305 
 TURNriKE TUUSTEES, 
 
 })roperty of, how to be laid, i. 28 
 
 U. 
 UNDER-STTERTFF, 
 
 extortion by, indictable, i. 301 
 UNDERTAKINa FOR THE PAYMENT OF MONEV, 
 
 foi'ij;ery of, ii. 810 
 UNDEl'aVOOD, 
 
 stealing, ii. 215 
 
 injuring and destroying, ii. 031 
 UNDERWRITER, 
 
 setting tire to a ship with intent to defraud, ii. 058 
 UNIVERSITY, 
 
 setting fire to buildings belonging to, ii. 002 
 UNKNOWN PERSON, 
 
 owner, tfec, ii. 255 
 UNLAWFUL ASSEMBLY.— See Index, Vol. L 
 
 definition of, i. 372 
 
 instances of what amounts to, i. 373 
 
 iliil'erence between, and riot, ih. 
 
 statutes concerning, i. 37-1, et seq. 
 
 evidence upon an indictment for a conspiracy in unlawfully assembling to 
 excite disaffection, i. 387 
 declarations of the parties assembling, i. 388 
 punishment, i. 380 
 UNLAWFUL SPORTS, 
 
 death by, i. 818 
 'UNLAWFULLY AND INJURIOUSLY,' 
 
 these words in an indictment preclude all legal excuse, i. 267 
 UNLAWFULLY AND MALICIOUSLY, 
 
 where necessary to be used, ii. 010, 035 
 UNSEAWORTHY SHIPS, 
 
 sendinu' to sea, iii. 706 
 UNWHOLESOME FOOD, 
 
 indictment for sellingj i. 268 
 UTTERING 
 
 forged instruments, ii. 715, ei seq, 
 
 V. 
 
 VACCINATION ACT, i. 268 
 VAC RANT ACT, 
 
 5 Ceo. 4, apprehension, itc, of persons uudcr, kc, i. 718 
 
 umcudmcut of, iii. 084
 
 Index. 803 
 
 VALUABLE SECURITY, 
 defi'iiition of, ii. 224 
 stealing, obliterating, ttc, ih. 
 by force or threats causing to be executed, ii. 81 
 by fraud causing to be executed, ii. o'lo 
 VALUE, 
 
 proof of, in larceny, ii. 283 
 statement of, in indictment, i. 3.5 
 VARIANCES, 
 
 instances of, iii. 399 
 amendments of.^See Amendment, 
 VEGETABLES, 
 
 stealing, ii. 216 
 destroying, ii. 937 
 VENUE, 
 
 counties, 
 
 offences committed on the boundai'ies of counties, i. 5 
 
 alterations by the Boundary Act, ib. 
 
 offences committed during a journey or voyage, i. G 
 
 larceny on a journey by railway, i. 7 
 
 detached parts of counties, ih., i. 8 
 
 offence committed in another county, i. 8 
 
 outlying districts, ih. 
 
 counties of cities and towns, i. 9 
 offences committed on the seas, i. 10 
 
 places limited by commission, ih. 
 
 concurrent jurisdiction, ib. 
 
 high and low water mark, i. 1 1 
 
 general rules, ib. 
 
 hay with headlands, ih. 
 
 inland sea, ih. 
 
 larceny at sea and carrying on shoi'C, i. 12 
 
 offences at sea triable in any of his ^lajcsty's dominions, etc, i. 13 
 
 murders and manslaughters outside of his Majesty's dominions, 
 i. 14 
 punishment for offences at sea, ib. 
 
 trial of offences at sea under Consolidation Statutes, i/>. 
 
 trial by Court of Quar-ter Sessions, i. 51 
 
 coinage offences at sea, i. 15. — See Coin. 
 
 murder, &.C., out of England, ih. 
 
 accessory within jurisdiction of Admiralty, ib. 
 
 Central Criminal Court, ib. 
 
 judges of assize, i. 10 
 
 venue in indictments for offences at sea, ih. 
 
 sufficient to allege offence 'on the higli seas,' 1.17 
 
 offences under Mcrcliant Shipping Arts, //'.. i. IS 
 
 jurisdiction in case of olfences on board ship, i. 18 
 
 or in any foreign port or hai-bour, ih. 
 
 proof that ship is a liritish shi]), i. 21 
 
 what are the 'high seas,' ib. 
 
 ]'>nglisliman in a foreign state sul)joct to tlic law thereof, i. 22 
 
 trial in the colonies, ih. 
 
 offences committed by Govcniors of colonies, i. 23 
 venue in the margin, when sufhcicut, i. 21 
 
 in larceny, ii. 270, et seq. 
 VERDK^r, 
 
 amendment before, i. (i2 
 
 defects in indictment cured by, i. 37
 
 804 Index. 
 
 VESSKL. 
 
 htnilinjjc fnim, in jior), it'c, ii. 307 
 Kliipwrcckcil or in diHlrcss, ih. 
 iiu'iiiiiii',' of word ' vessel,' ii. 9G1 
 set till*,' lire ti>, ii. ii^S, <7 .w/. 
 VEXATIOUS INDICTMENTS ACTS 
 applies to perjury, i. 2 
 
 Bubuniation, ih. 
 
 conspiracy, ih. 
 
 false ])rctenccs, ih. 
 
 giimbling, ih. 
 
 disorderly houses, ib. 
 
 indecent assault, ih. 
 no indictment without previous authorisation, ih. 
 justices to take recognizance to prosecute, i. 3 
 in discretion of judge whether to allow prosecution, ih. 
 second indictment for the same oftence, i. 4 
 restriction of operation of former Act, ih. 
 30 ct 31 Vict. c. ?>o—ih. 
 costs of the accused, ih., i. 103 
 VICTUALLERS.— See Unwuolesome Food. 
 VOIRE DIRE, 
 
 examination on, iii. G29 
 VOTER, 
 
 personating, i. 331, 334, 335; ii. 890, e< sc^?. 
 
 W. 
 WAGER.— See Gaming. 
 WALLS, 
 
 destroying, ii. 944 
 WAR, 
 
 the court will take judicial notice of, iii. I-'jI 
 articles of, proof and etiect of, iii. 408 
 WAR DEPARTMENT, 
 
 Stores Act, 1867, ii. 499 
 WAREHOUSE, 
 
 breaking into and committing a felony in, ii. 74 
 
 with intent, Arc, ii. 76 
 setting fire to, ii. 901 
 WAREHOUSED GOODS, 
 embezzling, ttc, ii. 402 
 taking out goods without due entry, ih. 
 WARPS, 
 
 of linen, etc., stealing, in process of manufacture, ii. 43G 
 destroying, etc., ii. 949, et seq. 
 WARRANT, 
 
 where it may be executed, i. 732 
 
 must be executed by the person named in it, or by some one in his 
 
 presence, i. 734 
 as to the time it continues in force, i. 735 
 falsity of the charge no answer, i. 737 
 reqiiisites of a warrant, ih. 
 
 party to be apprehended must be properly described, ih. 
 blank, illegal, ih., et seq. 
 
 for payment of money, stealing or obhtei-atiug, ii. 222 
 forging, ii. 819, 851, et seq. 
 India, forging, ii. 768 
 dock, stealing, ii. 223 
 
 of Secretary of State for attendance as a witness, iii. 597
 
 Index. 805 
 
 WARREN, 
 
 taking hares or rabbits in, ii. 301 
 WATER, 
 
 breach of contract by persons employed in supply of, iii. 101 
 WATERMAN, 
 
 receiving an undue number of persons in his boat, i. 839 
 WAY. — See tit. Highway. 
 WEAPON, 
 
 offensive, what shall be deemed, i, 277, et seg., G32 
 WEIGHTS AND MEASURES, 
 cheats by false, ii. 516, 517 
 WEIRS, 
 
 in rivers, when nuisances, &c., i. 521 
 WHARF, 
 
 stealing goods from, ii. 307 
 WHIPPING, 
 
 under The Consolidation Acts, i. 78 
 WIFE. — See tit. Feme Covert. 
 WILL, 
 
 defect of. — See tit. Capability. 
 stealing, obliterating, &c., ii. 219 
 forging, ii. 819 
 wiU of a living person, ii. G54 
 
 of a non-existing person, ih. 
 in a wi'ong Christian name, ii. 659 
 attested by only two witnesses, ii. 668 
 demanding money on a forged will, ii. 885 
 
 on probate or letters of administration, knowing the will to have 
 been forged, kc, ib. 
 probate of, how proved, iii. 418 
 
 how far conclusive, ib. 
 WINDING-UP ACT, ii. 395 
 WINTER ASSIZES, 
 
 statute respecting, iii. 704- 
 WITCHCRAFT, 
 
 cheats by, ii. 609 
 WITNESS, 
 
 dissuading from giving evidence, i. 360 
 
 prosecutor a witness for the prosecution on indictments for nuisance to 
 
 highway, i. 503 
 inhabitants of counties in prosecutions for not repairing bridges, i. 555 
 party ravished in rape, i. 866 
 
 child admissible on indictment for carnal knowledge, i. 874 
 woman forcibly taken away and married, witness against offender, i. 837 
 what witnesses arc competent, iii. 611, ctsc(]. 
 
 what is meant by cnmpetency, ib. 
 causes of incompetency, ih. 
 
 want of understanding, ih. 
 idiots, ib. 
 
 deaf and dumb persons, ih. 
 lunatics, ib. 
 children, iii. 612 
 postponing ti'ial to instruct, ib. 
 defect of religious belief, iii. 613 
 method of administering the oath, iii. 614 
 
 judicial oaths governed by the law of nations, iii. 615 
 
 all bound by the oatli taken, ib. 
 
 proper mode of examination to tiy witness's competency, iii. 616
 
 800 Index. 
 
 WITNKSS— rrt>///»»r,/. 
 
 trial caiiiKit, l)0 postponed till an ailiilt lias l)ccn instructed, iii. GIG 
 (j>ii!ikor.s and iMonivian.s, il>. 
 S(>|iaratists, il>. 
 
 otluTH declining to be sworn, iii. 017 
 cxeoninnniicatcd persons. Hi. 
 infamy, iii. (il8 
 
 incompetency from inflxmy now removed, ih. 
 accomplice, iii. GOO, et setj. — See Accomplices. 
 evidence ngainst a prisoner, ih. 
 
 ancient practice of approvement and present mode of ad- 
 mitting evidence of, ^6., et xeq. 
 principal felon a witness, iii. G09 
 
 evidence of accom}ilice alone sufficient in point of law, 
 iii. G03 
 what confirmation usually rerpiired, ib., et seq. 
 confirmation l)y wife of accomplice, iii. 008 
 whether confirmation sufficient, for jury, iii. GIG 
 where confirmation not required, iii. GOO 
 evidence for prisoner, iii. GIO 
 incompetency from interest, iii. G18, el scq. 
 now removed, ih., et seq. 
 
 defendants on their trial not competent, iii. G19 
 questions as to competency of prisoners jointly indicted, ib. 
 jirisoner pleading guilty or acquitted, iii. G20 
 husband and wife, iii. G20, et seq. 
 
 not competent for or against each other, iii. 620, et seq. 
 
 in collateral cases, iii. G22 
 
 not compelled to disclose communications made to each 
 
 other, iii. G21 
 they may be called to contradict each other, iii. C2i 
 their declarations, ib. 
 exceptions, iii. 622 
 
 abduction, iii. G24 
 
 indictment for personal violence, iii. 625 
 high treason, iii. 626 
 a woman living as wife, ib. 
 
 a wife competent against, is so for her husband, ib. 
 objections to competency, when to be taken, ib. 
 how to be supported and repelled, iii. G27 
 the whole evidence on both sides should be heard when the 
 
 objection is taken, ib. 
 examination on the voire dire, iii. 629 
 judge or jury competent, iii. 630 
 of privileged communications, and other mattei-s, which a witness may not 
 
 disclose, iii. 539, et seq. — See tit. Privileged Commuxications. 
 examination of , iii. o57, et seq. 
 examination in chief, ib. 
 
 leading questions, ib., et seq. 
 
 leading an adverse or unwilling witness, iii. 559 
 before trial, iii. 534 
 on behalf of prisoner, iii. 513 
 cross-e.ra mi nation, iii. 559 
 
 leading questions, iii. 560 
 what may be asked upon, ib. 
 obligation of witness to answer, ib. 
 assumptions upon, iii. 561 
 as to written iustniments, ib.
 
 Index. 807 
 
 WITNESS— co?i^in«efZ. 
 
 of witness called by one of several defendants, iii. 5G1 
 who may be cross-examined, iii. 563 
 
 witnesses whose names are on the back of the indictment need 
 not be called iu order to give an opportnnity for cross-exami- 
 nation, ih. 
 
 witness of one party afterwards called by another, iii. 
 5G4 
 witness recalled by the judge, ih. 
 re-examination, ih. 
 evidence iu reply confined to the contradiction of the evidence for the 
 
 defence, ih. 
 iu the discretion of the court, iii. 566 
 examination as to written documeuts, ih. 
 written instrument used to refresh the memory, ih. 
 general rule as to, iii. 567 
 adverse party may look at it, iii. 569 
 writing made for purpose of the case cannot be used, ih. 
 examination as to opinion, ih. 
 
 questions of skill and judgment, ih. 
 opinions of medical men, iii. 570 
 as to the law of another country, iii. 571 
 ordering witnesses out of court, ih. 
 
 counsel may not cross-examiue, if defendant addresses the jury, 
 iii. 572. 
 the judge may examine witnesses after case closed and objection 
 taken, iii. 572 
 Jww the credit of uitnesses may he impeached, ih. 
 
 by cross-examination of the witness as to his own conduct, //;. 
 
 he is not obliged to answer questions tending to criminate him, 
 
 iii. 573, et seq. 
 whether he is bound to answer questions tending to degrade 
 him, iii. 575, et seq. 
 such questions may at all events be asked, iii. 577 
 answer conclusive, ih. 
 it is the privilege of the witness only to decline to answer, 
 
 iii. 546 
 witness entitled to protection whenever he claims it, ih. 
 witness may now be asked whether he has not been con- 
 victed, iii. 578 
 by proof of contradictory statements, iii. 580 
 
 a foundation nuist be laid on cross-examination, ih. et seq. 
 proof of contradictory statements in writing, iii. 581 
 rules for mode of proceeding fur that purpose, ih. 
 a witness may now be cross-examined as to written state- 
 ments, ih. 
 counsel entitled to sec the paper, iii. 583 
 judge to decide as to the paper, ih. 
 
 cross-examination as to statements made before the com- 
 mitting magistrate, ih. et seq. 
 what questions may bo asked to lay a foundation for a contra- 
 dictory statement, iii. 586 
 in what cases evidence may be eallctl to contradict, ih. et srq. 
 
 where witness docs not directly answer, jiroof of statement is 
 now admissible, iii. 5S'J 
 by proof of his acts and declarations touching the cause, ih. 
 
 previous cross-examination necessary, ih. 
 re-examination, iii. 5'JO, ft *''/.
 
 808 Index. 
 
 WITNESS— roH//H »/•,/. 
 
 by pnjof of luH clinractcr, iii. ;Vjl 
 
 goucnil evidence only can be given, ih. 
 his clmracter, liow snpportcd, iii. h'd'2, 
 how fur party may discredit his own witness, iii. 593 
 
 proving a previous statement inconsistent with his evidence, 
 
 how mail}/ n'it iicKites are ncrcKxririj, iii. 591 
 single witnesses generally suflicient, ih. 
 not in case of pcrjnry, ih. 
 
 iu cases of high treason, ih. 
 misprision of treason, ih. 
 hoiv attendance is to he compelled, iii. 595 
 by recognizance, ih. 
 by subpoena, iii. 596 
 
 for prisoner, iii. 598 
 
 person present in court may be examined, iii. 597 
 suhpcena duces tecum, iii. 596 
 haheas corpus ad testijicandum, iii. 598 
 warrant by a secretaiy of state, iii. 597 
 
 remedy against persons neglecting to appear on subpoena, iii. 598 
 expenses need not be tendered, iii. 599 
 how attendance is to be remunerated, i. 8G. — See Costs. 
 
 protection of, from arrest, iii. 599 
 evidence of witnesses resident abroad, iii. 600 
 deceased, 
 
 evidence of, on former trial, iii. 354 
 attesting, 
 
 when necessaiy to call, iii. 434 
 WOMAN, 
 
 procuring abortion of, i. 853 
 procuring the defilement of, i. 877 
 
 forcible abduction and unlawful taking away of, i. 883, et seq. 
 offences at common law, ih. 
 oftences by statute, ih. 
 
 abduction from motives of lucre, i. 883, 886 
 fraudulent, i. 884 
 forcible, ih. 
 
 taking away with intent, sufficient, i. 885 
 the taking must be from motives of lucre, i. 886 
 accessories, i. 884 
 construction of the 3 Hen. 7 — ih. 
 county iu which the oftence is committed, i. 885 
 indictment, i. 886 
 
 evidence of the woman carried away, i. 887 
 taking away a maid imder sixteen from her father or guardian, i. 888 
 construction of 4 cl- 5 Ph. A: M., i. 892 
 cases on former Acts, i. 892, et seq. 
 clandestine marriages, i. 898 
 assault by taking indecent liberties, i. 959 
 WOOD, 
 
 setting fire to, ii. 932 
 stack of, setting fire to, ih. 
 WOODS AND FORESTS, 
 
 forgciT of handwriting of the Commissioners of, ii. 816 
 WOOLLEN GOODS, 
 
 destroying, in course of manufacture, ii. 949 
 stealing, in course of manufacture, ii. 430
 
 Index. 809 
 
 WORDS, 
 
 of indictable slander, iii. 178 
 slanderous words, ih. 
 seditious words, iii. 198 
 
 contemptuous, to the judges of the superior courts, iii. 203 
 spoken of or to inferior magisti-atos, iii. 204 
 will not make an affray, i. 3D1 
 provocation by, i. 676 
 WORKHOUSE, 
 
 embezzlement in, by paupers, ii. 402 
 WORKMEN, 
 
 combinations of, iii. LjD, et seq. 
 WORKS, 
 
 on rivers, canals, ifec, damaging, etc., ii. 940 
 
 of art, in museums, etc., damaging, etc., ii, 965 
 WOUNDING, i. ^n,etseri. 
 WRECK. — See tit. Shipwrecked Vessel. 
 
 impeding person saving his life, i. 914 
 
 stealing from, ii. 307, 508 
 
 property in, how laid, ii. 255 
 
 taking into a foreign port, ii. 309, 508 
 
 receiving stolen wreck, ii. 463 
 
 destroy insr, ii. 964 
 WRESTLING^ 
 
 assemblies for, not riotous, i. 365 
 WRITINGS, 
 
 larceny of, ii. 217, et seq. 
 
 proof of, iii. 433 
 WRITS, 
 
 neglecting to delivei*, for elections, i. 336 
 WRITTEN SECURIITES, 
 
 larceny of, ii. 220 
 
 .desci'iption of, ii. 264, et seq. 
 
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