may

indict on the prior cause as for a misdemeanor. Rex v. Harris, 4 T. R. 202.

13. The ftat. 26 Geo. 3. c. 6. f. 1. enacts, that all perfons going on board fhips coming from infected places, fhall obey fuch orders as the king in council fhall make, without annexing any particular punishment; the difobedience of fuch an order is an indictable offence, and punishable as a misdemeanor at common law. Ibid.

14. Where two fets of magiftrates have a concurrent jurifdiction, and one appoints a meeting to grant ale-licences, their jurifdiction attaches fo as to exclude the other appointing a fubfequent meeting though they may all meet together the first day; and if after fuch appointment the other fet of magiftrates meet on a fubfequent day, and grant other licences, their proceeding is illegal, and the fubject of an indictment. Rex v. Sainsbury, M. 32 G. 3. 4 T. R. 451.

15. Indictment lies for carrying on works (as Dr. Ward's aqua fortis works), which impregnate the air with noifome and offenfive fmells. Per Lord MANSFIELD, unwholesomeness is not effential; it is enough if the fmell be fo offenfive as to render the enjoyment of life and property uncomfortable. Rex v. White and Ward, E. 30 G. 2. 1 Burr. 333.

16. Indictment lies for felling by false weights, Rex v. Crookes, 2 Burr. 1841.

17. So for felling coals by falfe measure. Rex v. Osborn, ib. (n).

18. But fuch private unfair dealings (unattended with the circumstances of falfe tokens, or falfe weights and measures, or confpiracy) are not indictable; as delivering a lefs quantity of beer for a greater, or felling an unfound horfe as and for a found one. The true diftinction is this. In all fuch impofitions or deceits, where common prudence is fufficient to guard a perfon from fuffering, the offence is not indictable, but the party is left to his civil remedy; but where fuch methods are taken to cheat and deceive as a perfon cannot by ordinary care or prudence guard against, (as falfe weights and measures, or false tokens), there it is an indictable offence. Rex v. Wheatley, H. 1 G. 3. 3 Burr. 1125.

19. For not repairing a highway, indictment hes. Rex v. The Inhabitants of Harrow, 4 Burr. 2091. 5 lb. 2700.

20. For obtaining money under false pretences, Vide stat. 30 Geo. 2. c. 24. See alfo Young v, The King, in Error. 3 Term Rep. 98.

21. An indictment lies for maliciously vilifying the memory of one who is dead. But fuch an indictment muft allege that it was done with a defign to bring contempt on the family of the deceased, and to ftir up the hatred of the king's fubjects against them, and to excite his relations to a breach of the peace, otherwife it cannot be supported. Rex v, Topham, H. 31 G. 3. 4 Term Rep. 126.

22. Indict

22. Indictment lies against a bankrupt for fecreting his effects, Vide Frith's cafe, Caf. in C. L. 12.

(H. 3) What Offences are indictable by Statute.

1. TF a ftatute enjoin an act to be done, without pointing out any mode of punishment, an indictment will lie for disobeying the injunction of the legislature. Rex v. Davis, Sayer, 133.

2. And this mode of proceeding in such case is not taken away by a fubfequent ftatute, pointing out a particular mode of punishment for fuch difobedience. Rex v. Smith and others, 2 Dougl.

441.

3. For the court of King's Bench cannot be oufted of its common-law jurifdiction without negative words, or neceflary implication. Cates v. Knight, 3 T. R. 442. See ante, (H), and vide alfo Hartley v. Hooper, Cowp. 524. 2 Burr. 805.834. Rex v. Harris, 4 T. R. 202.

4. The power of two juftices, under the ftat. 13 Geo. 3. c. 78. f. 16., to order any highway to be widened, extends to roads repairable ratione tenura; and, upon disobedience to fuch order, the party may either be proceeded against fummarily under the ftatute, or by indictment. Rex v. Balme et al. 2 Cowp. 648.

5. Where there is no appropriation of a ftatute penalty, it is a debt to the crown, and fuable for in a court of revenue, and not by indictment. Rex v. Malland, 2 Str. 827.

14 Vin. 377.

(H. 4) Taken in what County. Where the Offence 14Vin. 372. was done in feveral Counties.

འ.

∙IT

T hath been holden, that if a person who has taken goods by robbery or burglary in one county be indicted for larceny of thofe goods, and they are found to be of the value of ten-pence only, he shall have his clergy in the foreign county; although if he had been indicted of the robbery in the proper county, he would have been excluded from clergy. 1 Hale, 536. 1 Hawk. P. C. 230. Vide 3 & 4 Will. & M. c. 19.

2. Murders and felonies committed in any part of Wales, may At the trial be tried in the next English county. Athoe's cafe, 1 Str. 553.

of one Webb, at Hereford

Summer affizes, 1782, for ftealing from a ship, stranded in Glamorganshire, an objection was made by the prisoner's counsel, that Herefordshire was not the next English county; but it was over-ruled by the Judge, and Webb was convicted and executed.-See the Indictment Cro. Cir. Af. 510.

3. It is enacted by 2 Geo. 2. c. 21. "That where death fhall happen in England from any caufe felonioufly given out of "England; or where the felonious caufe fhall be given in Eng"land, and the death enfue in any place out of England; an in"dictment thereof found by the jurors of the county in which " either the death or the caufe of the death fhall refpectively hap་ pen,

G4

ૉર્ડ pen, shall be as good and effectual in law, as well against the "principals and acceflaries, as if the offence had been com"pleted in the fame county where fuch indictment fhall be "found," &c.

4. By 13 G. 3. c. 31. f. 4. perfons who fhall have ftolen moc. in either part of the united kingdom, may be indicted for theft where the property is found upon them.

5. So by. 5. the receivers of money, &c. in either part of the united kingdom, knowing, &c. are triable where the property is received, though not originally ftolen there.

(H. 5) In what Cafes.

Where the Thing in which the Offence confifts is only prepared, or inchoate or intended, but not executed.

1. PER Lord Helt. fomething be done

The advifing one to rob or kill, without thereupon, is not indictable. The Quen v. Daniel, 6 Mod. 99. But if a meeting be to rob or kill, it may be indictable. Ib.

2. To perfuade an apprentice to embezzle his master's goods is an indictable offence; but the indictment must positively aver that he did take away the goods in confequence of fuch perfuafion. The Queen v. Collingwood. 6 Mod. 288. 2 Ld. Raym. 1116.

3. Agreeing to give a person a sum of money to prove a deed to be forged, for the purpofe of obtaining a verdict, is a criminal offence. Rex v. Johnfon, E. 30 C. 2. 2 Show. 1.

4. An information for attempting to fuborn a person to prove a deed falfe, is good, without alleging that the deed was true. Ibid. 5. In Rex v. Reft. which was an indictment for a confpiracy to charge a man as the father of a bastard, it was objected that without an act done it was no crime, and that the indictment al leged nothing but that the defendants confpire to tell the profe. cutor that he was the father of the child of which E. was enfeint. But judgment was given for the crown. 2 Ld. Raym. 1167..

6. The fame kind of objection in Res v. Kennerley and Moor, where it was urged that bare words, charging A. that he conatus fuit rem veneream habere with the defendant, and fo to commit an unnatural crime, were not a fufficient overt act, without alleging fomething actually done towards putting the coufpiracy in execution. But the objection was unanimoufly over-ruled, and several instances were mentioned of attempts to commit felonies being punished as misdemeanors. I Stra. 193.

7. The bare having coining tools in poffeffion, with intent only to use them, was holden indictable: per curiam, here the intent is the offence; and the having in his cuftody, is an act that is the evidence of that intent. Rex v. Sutton, 2 Stra. 1073.

8. The promising money to a member of a corporation to induce him to vote for the election of a mayor, is an offence for

#hich an information will lie. Rex v. Plympton, 2 Ĺd. Raym.

1377.

9. The fame principle governed the cafe of Rex v. Vaughan, where an information was granted against the defendant for attempting to bribe a privy counsellor to procure him an office in the colonies. 4 Burr. 2494.

10. In the cafe of Rex v. Scofield, it was holden, that the attempting to fet fire to a man's houfe, which is only a misdemeanor, was itself a misdemeanor per fe, as much as an attempt to commit felony, though differing in degree. There, indeed, was an act done; but another cafe was there cited, before Adams B. at Shrewsbury, where an indictment charged a defendant with an attempt to fuborn one to commit perjury; which, upon reference to the Judges, was unanimously holden to be a misdemeanor. · Cald. 397.

11. In an indictment on 7 G. 3. c. 70. making it felony to endeavour to feduce a foldier or failor from their duty, it is fufficient to charge an endeavour, &c. without fpecifying the means employed. Rex v. Fuller, M. 38 G. 3. 1 Bof. & Pull. 180.

(H.

8) Good or not in respect of the Place where 14Vin. 376, or before whom taken, or where the Fact is alleged to be done.

1.ON

N an indictment, ftating that the defendant, late of Woolhampton in the county of Berks, with force and arms, at the parith aforefaid, in the county aforefaid, made an affault on J. W. Sc. a motion was made in arreft of judgment, on the ground that no proper venue was laid. It did not appear where the offence was committed; the indictment only stated it to be at the parish aforesaid, no parish having been before mentioned, Welhampton not being described as a parith. BLACKSTONE contrà, infitted that it must be taken upon the face of the record, that Woolhampton was a place from which a venue might come; efpecially as the offence is laid at the parish aforefaid, and no other place was before mentioned, which fhews Woolhampton to be a parish. But THE COURT faid, they inclined to think the objection fatal. They faid they could not intend any thing concerning Woolhampton, because there was no occafion on the trial to prove what place it was. But there ought, on the face of the record, to appear fome certain venue; whereas here the offence was only laid at the parish aforesaid, and no parish was before mentioned. The King v. Matherus, H. 33 G. 3. 5 T. R. 162.

2. The defendants had been convicted of a nuisance, in erecting buildings, and there making acid fpirit of fulphur. The indictment run thus: that "at the PARISH of Twickenham, &c. near the king's common highway there, and near the dwellinghoufes of feveral of the inhabitants, the defendants erected," &c.

an

an objection was taken in arreft of judgment, that the indictment was laid generally at the PARISH of Twickenham, and only faid near the common highway; but not faid to be in the town or village. But, per Lord Mansfield, It is fufficiently laid, and in the accuftomed manner. The very exiflence of the nuifance depends upon the number of houfes and concourfe of people; and this is matter of fact to be judged by the jury. Rex v. White and Ward, E. 30 G. 2.1 Burr. 333.

3. If there be two vills in a parish, the indictment need not fhew in which of them the defendant lives. Sayer, 119.

4. It feems to be agreed that a miftake of the place in which an offence is laid, will not be material upon the evidence on " not guilty" pleaded, if the fact be proved at fome other place in the fame county. 4 Hawk. P. C. 47. S. 84.

5. If the fact is laid to be done in a city or county in itself, but which are not co-extenfive, it must fay, within the city and county of E., &c. Rex v. Bunce, E. 11 G. 2. Andr. 162.

6. An indictment against the parish of B, for not repairing a road leading from 4. to B. is exclufive of B., and therefore bad; and it is not aided by a fubfequent allegation, that a certain part of the fame highway in B. is in decay, &c. Rex v. Gamlingay, H. 30 G. 3. 3 T. Ř. 513.

14 Vin.378. (H. 10) Good or not in refpect of the Time when taken, and fetting forth of the Fact.

1.IT

T is not neceffary to mention the hour in an indictment. 4 Hawk. P. C. 44.

2 In BURGLARY the hour is ufually mentioned, in order to fhew that the offence was committed in the night-time; and in Rex v. Waddington, Lancaster Lent aflizes 1771. Mr. Juftice Gould held an indictment for burglary infufficient because the hour was omitted. Ibid. (n).

3. Where the caption of the indictment ftates the court of Quarter Seffions, where fuch indictment was found, to be held on an impoffible day, it is fatal. Rex v. Fearnley, 1 T. R. 316.

4. Perjury being alleged in the indictment to have been committed in the time of the late king, and charged to be against the peace of the now king, is fatal, and renders the indictment infufficient, and a conviction therefore reverfed in the Houfe of Lords, and the defendant discharged therefrom. Rex v. Lookup, 3 Burr.

1901.

5. It is agreed, that a mistake in not laying the offence on the very fame day on which it is afterwards proved upon the trial, is not material upon evidence. 4 Hawk. P. C. 46. f. 81.

6. Time and place must be added to every material fact in an indictment. Rex v. Hollond, 5 T. R. 607.

7. Though the time in a temporary ftatute be expired, yet if it be continued, the fact may be laid to be done by virtue of the first law i