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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 wbich 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 tinie: 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 Com

mons, 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 actions, any Judge sitting at Nisi Prius, and any court of oyer and terminer shall appear and general gaol delivery in England, Wales, the town of Berwick-uponbetween writ. Tweed, and Ireland, if such Court or Judge shall see fit so to do, to cause the ten or printed record on which any trial may be pending before any such Judge or Court in evidence and any civil action, or in any indictm

any civil action, or in any indictment or information for any misdemeanor, the record, the when any variance shallann

when any variance shall appear between any matter in writing or in priut proCourt may

duced in evidence and the recital or setting forth thereof upon the record order the record to be

whereon the trial is pending, to be forthwith amended in such particular by amended on some officer of the court, on payment of such costs (if any) to the other party payment of as such Judge or Court shall think reasonable; and thereupon the trial shall costs.

proceed as if no such variance had appeared ; and in casé 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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An Act for amending the Law of Evidence in certain Cases.

[27th June, 1828.]



their solemn

WAERBAS it is expedient that Quakers and Moravians should be allowed to give evidence upon their solemn affirmation in all cases, criminal as well as eiril; 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 aqtbority of the same, That every Quaker or Moravian who shall be required Quakers or to give evidence in any case whatsoever, criminal or civil, shall, instead of Moravians retaking an oath in the usual form, be permitted to make his or her solemn quired to give affirmation or declaration in the words following; that is to say, “I, A. B. do evidence may, solemnly, sincerely, and truly declare and affirm;" which said affirmation or

instead of an declaration shall be of the same force and effect in all courts of justice, and

i oath, make other places where by law an oath is required, as if such Quaker or Moravian affirmation: had taken an oath in the usual form; and if any person making such affirma- which shall be tion or declaration shall be convicted of having wilfully, falsely, and corruptly of the same affirmed or declared any matter or thing, which if the same had been sworn in effect in all the usual form would have amounted to wilful and corrupt perjury, every cases, civil such offender shall be subject to the same pains, penalties, and forfeitures to or criminal. 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 informa- The party tion, either at common law, or by virtue of any statute, against any person, whose name for forging any deed, writing, instrument, or other matter whatsoever; or for

for is forged shall uttering or disposing of any deed, writing, instrument, or other matter what

be a competent

witness in soever, knowing the same to be forged ; or for being accessory before or after

prosecutions the fact to any such offence, if the same be a felony; or for aiding, abetting, or for forgery. 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.

II. 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, Tbat 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 a the great seal as to the felony whereof the offender was so convicted: Pro

great seal, vided always, tbat 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 fe- '


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No misde IV. And whereas there are certain misdemeanors which render the parties meanor (ex- convicted thereof incompetent witnesses, and it is expedient to restore the cept perjury) competency of such parties after they have undergone their punishment ; be sball render a it therefore enacted, That where any offender hath been or shall be convicted party an in- of any such misdemeanor, (except perjury or subornation of perjury,) and competent hi

bath endured or shall endure the punishment to which such offender hath witness after been or shall be adjudged for the same, such offender shall not, after the puhe has undergone the pu

nishment so endured, be deemed to be by reason of such misdemeanor an innishment.

competent witness in any Court or proceeding, civil or criminal.



Crimes and Misdemeanors.






It 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 punishment.

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 :-). Infancy. II. Non compos mentis. III. Subjection to the power of others. IV. Ignorance. (a) 4 Bla. Com. 20.

(0) I Hale 14. VOL, I.

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Infants com. 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, · meanors.

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. (8)

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) Infants com... With regard to capital crimes the law is more minute and cirmitting capital

cumspect; distinguishing with greater nicety the several degrees of crimes.

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. (0) 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
· 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 fe- force of the general words of any male according to common speech. statute wherein he is not expressly Lit. s. 104, 259.

named. (d) I Hale 20.

(K) 4 Bac. Abr. 591. Co. Lit. 357. (e) 4 Bla. Com. 23. i Hale 20. Co. I Hawk. P. C. c. 64. s. 35. Lit. 246 b. 2 Inst. 703,

(1) 4 Bla. Com. 23. (f) 3 Bac. Abr. 593. Sid. 253. (m) i Hale 27, 28. 1 Hawk. c. 1. (g) 1 Hale 20. 3 Bac. Abr. 591. s. 1. note (1). 4 Bla. Com. 23. A par(h) i Hale 21.

don was granted to an infant within (i) 4 Bac. Abr. 591. Dalt. 302. Co. the age of seven years, who was inLit. 357. And see i Hawk. P. C. c. 64. dicted for homicide; the jury having s. 35. that the infant ought not to be found that he did the fact before he imprisoned because he shall not be was seven years old, I Hale 27, (edit. subject to corporal punishment by 1800) note (e).

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