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-ANNO NONO

GEORGII IV. REGIS.

CAP. XV.

An Act to prevent a Failure of Justice by reason of Variances between
Records and Writings produced in Evidence in support thereof.
[9th May, 1828.]

WHEREAS great expence is often incurred, and delay or failure of justice takes place at trials, by reason of variances between writings produced in evidence and the recital or setting forth thereof upon the record on which the trial is had, in matters not material to the merits of the case, and such record cannot now in any case be amended at the trial, and in some cases cannot be amended at any time: for remedy thereof be it enacted by the King's most excellent Majesty, by and with the advice of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, In cases where That it shall and may be lawful for every court of record holding plea in civil

a variance shall appear between writ ten or printed

evidence and

the record, the

Court may order the record to be amended on payment of costs.

any

actions, any Judge sitting at Nisi Prius, and any court of oyer and terminer and general gaol delivery in England, Wales, the town of Berwick-uponTweed, and Ireland, if such Court or Judge shall see fit so to do, to cause the record on which any trial may be pending before any such Judge or Court in civil action, or in any indictment or information for any misdemeanor, when any variance shall appear between any matter in writing or in priut produced in evidence and the recital or setting forth thereof upon the record whereon the trial is pending, to be forthwith amended in such particular by some officer of the court, on payment of such costs (if any) to the other party as such Judge or Court shall think reasonable; and thereupon the trial shall proceed as if no such variance had appeared; and in case such trial shall be had at Nisi Prius, the order for the amendment shall be indorsed on the postea, and returned together with the record; and thereupon the papers, rolls, and other records of the court from which such record issued, shall be amended accordingly.

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ANNO NONO

GEORGII IV. REGIS.

CAP. XXXII.

An Act for amending the Law of Evidence in certain Cases.
[27th June, 1828.]

Quakers or Moravians required to give evidence may,

instead of an

oath, make
affirmation,
which shall be
of the same
effect in all
cases, civil
or criminal.

their solemn

The party

whose name

WHEREAS it is expedient that Quakers and Moravians should be allowed to give evidence upon their solemn affirmation in all cases, criminal as well as civil; and that, in prosecutions for forgery, the party interested should be rendered a competent witness: be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, That every Quaker or Moravian who shall be required to give evidence in any case whatsoever, criminal or civil, shall, instead of taking an oath in the usual form, be permitted to make his or her solemn affirmation or declaration in the words following; that is to say, "I, A. B. do solemnly, sincerely, and truly declare and affirm;" which said affirmation or declaration shall be of the same force and effect in all courts of justice, and other places where by law an oath is required, as if such Quaker or Moravian had taken an oath in the usual form; and if any person making such affirmation or declaration shall be convicted of having wilfully, falsely, and corruptly affirmed or declared any matter or thing, which if the same had been sworn in the usual form would have amounted to wilful and corrupt perjury, every such offender shall be subject to the same pains, penalties, and forfeitures to which persons convicted of wilful and corrupt perjury are or shall be subject. II. And be it enacted, That on any prosecution by indictment or information, either at common law, or by virtue of any statute, against any person, for forging any deed, writing, instrument, or other matter whatsoever; or for uttering or disposing of any deed, writing, instrument, or other matter whatsoever, knowing the same to be forged; or for being accessory before or after the fact to any such offence, if the same be a felony; or for aiding, abetting, or counselling the commission of any such offence, if the same be a misdemeanor ; no person shall be deemed to be an incompetent witness in support of any such prosecution, by reason of any interest which such person may have or be supposed to have in respect of such deed, writing, instrument, or other matter. IJI. And whereas it is expedient to prevent all doubts respecting the civil Every punishrights of persons convicted of felonies not capital, who have undergone the ment for felopunishment to which they were adjudged; be it therefore enacted, That where ny, after it has any offender hath been or shall be convicted of any felony not punishable been endured, with death, and hath endured or shall endure the punishment to which such shall have the offender hath been or shall be adjudged for the same, the punishment so en- effect of a pardured hath and shall have the like effects and consequences as a pardon under don under the the great seal as to the felony whereof the offender was so convicted: Pro- great seal. vided always, that nothing herein contained, nor the enduring of such punishment, shall prevent or mitigate any punishment to which the offender might otherwise be lawfully sentenced on a subsequent conviction for any other felony.

is forged shall be a competent

witness in prosecutions for forgery.

No misdemeanor (except perjury) shall render a party an incompetent

witness after

he has undergone the punishment.

IV. And whereas there are certain misdemeanors which render the parties convicted thereof incompetent witnesses, and it is expedient to restore the competency of such parties after they have undergone their punishment; be it therefore enacted, That where any offender hath been or shall be convicted of any such misdemeanor, (except perjury or subornation of perjury,) and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, such offender shall not, after the punishment so endured, be deemed to be by reason of such misdemeanor an incompetent witness in any Court or proceeding, civil or criminal.

A

TREATISE

ON

Crimes and Misdemeanors.

BOOK THE FIRST.

OF PERSONS CAPABLE OF COMMITTING CRIMES,
OF PRINCIPALS AND ACCESSORIES,
AND OF INDICTABLE OFFENCES.

CHAPTER THE FIRST.

OF PERSONS CAPABLE OF COMMITTING CRIMES.

Ir is a general rule that no person shall be excused from punishment for disobedience to the laws of the country, unless he be expressly defined and exempted by the laws themselves. (a) The enquiry, therefore, as to those who are capable of committing crimes, will best be disposed of by considering the several pleas and excuses which may be urged on behalf of a person who has committed a forbidden act, as grounds of exemption from punish

ment.

Those pleas and excuses must be founded upon the want or Want or defect defect of will in the party by whom the act has been committed. of will. For without the consent of the will, human actions cannot be considered as culpable; nor where there is no will to commit an offence, is there any just reason why a party should incur the penalties of a law made for the punishment of crimes and offences. (b) The cases of want or defect of will seem to be reducible to four heads:-I. Infancy. II. Non compos mentis. III. Subjection to the power of others. IV. Ignorance.

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Infants com

meanors.

I. The full age of man or woman by the law of England is mitting misde- twenty-one years: (c) under which age a person is termed an infant, and is exempted from punishment in some cases of misdemeanors and offences that are not capital. (d) But the nature of the offence will make differences which should be observed. Thus, if it be any notorious breach of the peace, as a riot, battery, or the like, an infant above the age of fourteen is equally liable to suffer as a person of the full age of twenty-one; (e) and if an infant judicially perjure himself in point of age, or otherwise, he shall be punished for the perjury; and he may be indicted for cheating with false dice, &c.:(f) but if the offence charged by the indictment be a mere non-feazance (unless it be of such a thing as the party be bound to by reason of tenure or the like, as to repair a bridge, &c.) there, in some cases, he shall be privileged by his non-age, if under twenty-one, though above fourteen years; because laches in such a case shall not be imputed to him. (g)

Infants committing capital crimes.

It is said that if an infant of the age of eighteen years be convicted of a disseisin with force, yet he shall not be imprisoned ; (h) and the law is said to be, that though an infant at the age of eighteen, or even fourteen, by his own acts may be guilty of a forcible entry, and may be fined for the same, yet he cannot be imprisoned, because his infancy is an excuse by reason of his indiscretion; and it is not particularly mentioned in the statute against forcible entries, that he shall be committed for such fine. (i) An infant cannot, however, be guilty of a forcible entry or disseisin by barely commanding one, or by assenting to one to his use; because every command or assent of this kind by a person under such incapacity is void but an actual entry by an infant into another's freehold gains the possession and makes him a disseisor. (k)

:

With regard to capital crimes the law is more minute and circumspect; distinguishing with greater nicety the several degrees of age and discretion: though the capacity of doing ill or contracting guilt is not so much measured by years and days as by the strength of the delinquent's understanding and judgment. (1) But within the age of seven years an infant cannot be punished for any capital offence, whatever circumstances of a mischievous discretion may appear; for ex presumptione juris such an infant cannot have discretion; and against this presumption no averment shall be admitted. (m)

On the attainment of fourteen years of age, the criminal actions of infants are subject to the same modes of construction as those

(c) It is the full age of male or female according to common speech. Lit. s. 104, 259.

(d) 1 Hale 20.

(e) 4 Bla. Com. 23. 1 Hale 20. Co.
Lit. 246 b. 2 Inst. 703,

(ƒ) 3 Bac. Abr. 593. Sid. 253.
(g) 1 Hale 20. 3 Bac. Abr. 591.
(h) 1 Hale 21.

(i) 4 Bac. Abr. 591. Dalt. 302. Co.
Lit. 357. And see 1 Hawk. P. C. c. 64.
s. 35. that the infant ought not to be
imprisoned because he shall not be
subject to corporal punishment by

force of the general words of any statute wherein he is not expressly named.

(k) 4 Bac. Abr. 591. Co. Lit. 357. 1 Hawk. P. C. c. 64. s. 35. (7) 4 Blá. Com. 23.

(m) 1 Hale 27, 28. 1 Hawk. c. I. s. 1. note (1). 4 Bla. Com. 23. A pardon was granted to an infant within the age of seven years, who was indicted for homicide; the jury having found that he did the fact before he was seven years old, 1 Hale 27, (edit. 1800) note (e).

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