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only that the prisoner had been convicted of felony, were insufficient; and the prisoner was remitted to his former sentence.(d) Where an indictment stated the condition upon which the royal mercy was extended to have been general, whereas it appeared not to have been general but specific, viz., that the prisoner should be transported to places specified, the variance was held to be fatal. (e)

Where the prisoner had received a pardon on condition of transporting himself beyond the seas, within fourteen days from the day of his discharge, and it was incumbent on the prosecutor to prove the precise day on which the prisoner was discharged, it was holden that the daily book of the prison, containing entries of the names of the criminals brought to the prison, and the times when they were discharged, though generally made from the information of the turnkeys, or from their endorsements on the backs of the warrants, was good evidence to prove the time of the prisoner's discharge. (w) And it was held, that though, if a convict on his trial for returning from transportation before his time was expired should confess the fact, and acknowledge that he is the man, the court would record such confession; yet, no such confession being made, it was necessary to produce the record of conviction, and give evidence of the prisoner's identity. (x)

Evidence of the day of the charge.

prisoner's dis

When a convict was sentenced to transportation for seven Evidence of a years, and received a sign manual, promising him a pardon, "on sign manual. "condition of his giving a security to transport himself for that

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period within fourteen days," and upon his giving such security was discharged from prison, but neglected to transport himself within the fourteen days: it was holden that he could not be indicted for being unlawfully found at large before the term for which he had received sentence of transportation had expired, on' the ground that such sign manual, and the recognizance entered into in consequence of it, were good evidence that he was lawfully at large; although he had not substantially performed the condition on which the promise of pardon was granted. (y)

(d) Rex v. Watson, Mich. T. 1821. Russ. and Ry. 468.

(e) Rex v. Fitzpatrick, Russ. and Ry. 512.

(w) Aickle's case, 1 Leach 391, 392. (x) 1 Hawk. P. C. c. 47. Return from Transportation, s. 21. The late statute, 5 Geo. 4. c. 84. s. 24. makes a certificate of the conviction, &c. sufficient evidence. Ante, 398.

(y) Miller's case, 1 Hawk. P. C. c. 47. Return from Transportatian, s. 22. Cas. C. L. 69. 1 Leach 74. 2 Blac. R. 797. It appears that the Judges considered, that the sign manual was improperly worded by mistake of the officer: that it should have been, "upon condition of the said Miller transporting himself, &c. and of his "giving security to the satisfaction, "&c." and not merely "upon condi"tion of his giving security, &c."

and that though the king might re-
voke his intended grace on account
of this apparent fraud; yet, as he had
not in fact revoked it, and as the
prisoner had literally complied with
the condition, he ought not to have
been convicted upon an indictment
for being found at large, without any
lawful cause, before the expiration of
his term. With respect, however, to
a condition being considered precedent
or subsequent, it has been holden that
no precise technical words are requi-
site for that purpose; that it does not
depend upon its being prior or poste-
rior in the deed, but that it depends
upon the nature of the contract, and
the acts to be performed by the par-
ties. Robinson v. Comyns, Cas. temp.
Talb. 166. Hotham v. the East India
Company, 1 T. R. 645.

As to the offender being

portation.

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In the last case, the prisoner was referred to his original senreferred to his tence of transportation, as not having performed the condition original sen- upon which his pardon was to be granted; that is, he was partence of trans- doned on condition of transporting himself within fourteen days. (2) And in another case it was holden, that a prisoner convicted of a capital crime, whose sentence was respited during the king's pleasure, and who, having received a pardon on condition of transportation for life, was afterwards found at large in Great Britain without lawful cause, should be referred to his original sentence. (a) In a subsequent case, where the prisoner, having been convicted of simple grand larceny, had received judgment of transportation to America for seven years, but had afterwards been pardoned, "on condition of transporting himself beyond the seas for the same term of years, within fourteen days from the "day of his discharge, and of giving security so to do," and, upon giving the security required, had been discharged, but had not complied with the other part of the condition, by transporting himself, it was doubted whether he could be convicted of a capital felony in being found at large, without any lawful cause, before the expiration of the term, or whether he ought to be remitted to his former sentence. The former cases were cited as authorities that the prisoner's discharge was a lawful cause for his being at large, notwithstanding he had forfeited the recognizance of himself and his bail, by breaking the other part of the condition, in not transporting himself within the fourteen days: but one of the Judges thought that, as the prisoner had not complied with the terms on which he was pardoned, he must be considered as having been at large without lawful authority, as soon as the fourteen days had expired. Another Judge considered it as a doubtful question whether the non-performance of the condition had not rendered the whole pardon null and void: and he also thought that the offence with which the prisoner was charged was not within one of the statutes then relied upon, namely, the 16 G. 2. c. 15., because he had not agreed to transport himself to America;

(z) Miller's case, 1 Leach 76.

(a) Madan's case, Old Bailey, 1780. 1 Leach 223. In 1 Hawk. P. C. c. 47. Return from Transportation, s. 23 (referring to Cas. C. L. 197) this case is cited as having decided that the prisoner was so referred back to his original sentence, on his being indicted for returning from transportation, and acquitted. But in the report in Leach, it is said that no indictment was ever preferred against the prisoner for the new felony; but that, being in custody, a notice was served upon him to shew cause why execution should not be awarded against him on his former sentence: that after this notice he was put to the bar, and his identity and the record of his former conviction proved; and he not being prepared to prove the truth of certain facts alleged in his defence,

the court gave their opinion that, as he had broken the condition of the pardon, he remained in the same state in which he was at the time the pardon was granted, viz. under sentence of death, with a respite of that sentence during his majesty's pleasure. The report further states, that afterwards it was submitted to the Judges, whether the prisoner would not have been liable to suffer death without benefit of clergy, if he had been indicted and convicted under a statute then existing, namely, the 8 G. 3. c. 15., or whether he had been properly referred to his original sentence. No opinion of the Judges is stated: but it appears, that at the Old Bailey, April Sess. 1782, the prisoner was informed by the court that it was his majesty's pleasure that he should be transported to Africa for life.

and that it was not within another statute, namely, 19 G. 3. c. 74. because that act related only to pardons granted to offenders who had been convicted of felonies by which they were excluded from clergy. (d)

Poverty and

ill health amount to a

lawful excuse

In the last mentioned case, one point was clearly agreed upon, namely, that as the prisoner had, at the time of his discharge, a real intention to quit the kingdom within the time, but had been prevented from carrying it into execution by the distress of for not having poverty and ill health, these impediments amounted to a lawful kingdom. excuse. (e)

(4) Aickles's case, Old Bailey, 1785. cor. Gould, J., Hotham, B., and Adair, Recorder. The Recorder thought, that the indictment was perfectly supported under the clause of the 16 G. 2. c. 15. adopted by 19 G. 3. c. 74. which made it a capital felony to be found at large in Great Britain within the term for which a convict, who was liable to be transported to America, had received sentence to be transport

ed beyond the seas. But he thought,
that when the condition of the king's
pardon was broken, the pardon was
gone. There being, however, a dif-
ference of opinion, it was intended to
have submitted the case to the opinion
of the twelve Judges, if the prisoner
had been found guilty.

(e) Aickles's case, 1 Leach 396.; and
sce Thorpe's case, id. ibid. note (a).

quitted the

CHAPTER THE THIRTY-SIXTH.

OF GAMING.

Playing at

cards, &c. as a recreation,

rate sums, is not any offence. But otherwise as to gaming.

Ir seems that by the common law, the playing at cards, dice, &c., when practised innocently and as a recreation, the better to fit a and for mode- person for business, is not at all unlawful, nor punishable as any sort of offence: but a person guilty of cheating, as by playing with false cards, dice, &c. may be indicted for it at common law, and fined and imprisoned according to the circumstances of the case, and heinousness of the offence. (a) We have seen that common gaming-houses are considered as nuisances in the eye of the law; (b) and that lotteries have been declared to be public nuisances, except as they may have been authorized by parliament. (c) And when the playing is, from the magnitude of the stake, excessive, and such as is now commonly understood by the term gaming, it is considered by the law as an offence, being in its consequences most mischievous to society. In most cases, however, the party is subjected only to pecuniary penalties, recoverable by information, or by summary or civil proceedings: but some offences may be mentioned, which, by statutable enactments, may be prosecuted by indictment. (d)

9 Ann. c. 14. s. 5. Persons

losing 101. at a sitting may sue for it again; and if

The statute 9 Ann. c. 14. s. 5. enacts, that any person who shall at any time or sitting, by playing at cards, dice, tables, or other game or games whatsoever, or by betting on the sides or hands of such as do play at any of these games, lose to any one or more person or persons so playing or betting in the whole the sum or the loser does value of ten pounds, and shall pay the same, or any part thereof, he may sue for it again within three months, and recover it, with costs, by action of debt; and in case the loser shall not bona fide sue, any other person may sue for and recover the same, and treble the value thereof, with costs of suit, against the winner. (e) The

not sue, any other person may recover

the same, and treble the value.

(a) 3 Bac. Abr. Gaming (A) 2 Roll. Abr. 78.

(b) Ante, 299.

(c) Ante, 304. And a late statute 42 Geo. 3. c. 119. declares all games or lotteries, called Little Goes, to be public nuisances, and provides for their suppression; and also imposes heavy penalties upon persons keeping offices, &c. not authorized by parlia

ment.

(d) As to the penalties imposed upon persons gaming, or keeping gaming houses, &c. and the proceedings for the recovery of them, sec 1 Hawk P.C. c. 92. 3 Bac. Abr. Gaming. 2 Burn. Just. Gaming. 4 Blac. Com. 172, 173, 174, and the notes (10) (11), and the statutes 2 Geo. 2. c. 28. 12 Geo. 2. c. 28. 25 Gco. 2. c. 36. s. 5. and 16 Car. 2. c. 7.

(e) S. 2.

CHAP. XXXVI. J

66

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Of Gaming.

deceit, &c.

or at any one ning above sitting win10. shall for feit five times

the value, and, in case of such

ill practice be deemed infasuffer the punishment of perjury.

mous, and

statute then further enacts, that "if any person or persons what- Any person by soever do or shall, by any fraud or shift, cousenage, circumven- winning any ❝tion, deceit, or unlawful device, or ill practice whatsoever, in monies, &c. playing at or with cards, dice, or any the games aforesaid, or in or by bearing a share or part in the stakes, wages, or adventures, or in or by betting on the sides or hands of such as do or "shall play as aforesaid, win, obtain, or acquire to him or them"selves, or to any other or others, any sum or sums of money, or "other valuable thing or things whatsoever, or shall at any one "time or sitting win of any one or more person or persons what66 soever, above the sum or value of ten pounds, that then every person or persons so winning by such ill practice, as aforesaid, "or winning at any one time or sitting above the said sum or "value of ten pounds, and being convicted of any of the said "offences, upon an indictment or information to be exhibited against him or them for that purpose, shall forfeit five times the "value of the sum or sums of money, or other thing so won as "aforesaid; and in case of such ill practice as aforesaid, shall be "deemed infamous, and suffer such corporal punishment as in "cases of wilful perjury; and such penalty to be recovered by "such person or persons as shall sue for the same by such action as aforesaid."

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66

66

66

winperson ning or losing at any one time 10%, or hours 20%,

within 24

dicted and fined five

may be in

times the va

By the 18 Geo. 2. c. 34. s. 8. "If any person shall win or lose 18 Geo. 2. c. "at play, or by betting, at any one time, the sum or value of ten 34. s. 8. Any pounds, or within the space of twenty-four hours, the sum or "value of twenty pounds, such person shall be liable to be "indicted for such offence within six months after it is com"mitted, either before the justices of the King's Bench, assize, "gaol delivery, or great sessions; and being thereof legally con"victed, shall be fined five times the value of the sum so won or "lost; which fine (after such charges as the court shall judge "reasonable allowed to the prosecutors and evidence out of the lue. "same) shall go to the poor of the parish, or place where such "offence shall be committed." There is then a provision, that if Offender disany person so offending shall discover any other person so offend- covering any ing, so that such person be thereupon convicted, the person so to be disdiscovering shall be discharged and indemnified from all penalties, charged.. if such person so discovering has not been before convicted thereof, and shall be admitted as an evidence to prove the same. (ƒ)

other offender.

tion of the statute of 9

the construc

Anne, c. 14.

It has been decided that a foot race, whether the race be upon a Cases upon given distance, or against a certain time, is a game prohibited by 9 Ann. c. 14. (g) And a wager that a person did not find within such a time a man who should carry on foot twenty-four stone weight ten miles in fifteen hours has been holden to be within the same principle. (h) But where A. betted B. that one C. would not run four miles in twenty-one minutes, it was adjudged not to be within the statute, because as C. was not playing at such game, there could be no betting on his side within the statute; for C. might be running for his amusement, and not to win any bet. (i)

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