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offers a bribe to a judge, meaning to corrupt him in the cause depending before him, and the judge takes it not, yet this is an offence punishable by law in the party that offers it. (c) And an attempt to suborn a person to commit perjury, upon a reference to the judges, was unanimously holden by them to be a mis

demeanor. (d) An act done, In a case where the defendant was indicted for a misdemeanor and a criminal in having coining instruments in his custody, with intention to joined to that coin half guineas, shillings, and sixpences, and to utter them as act, are sufli

and for the legal current coin, Lord Hardwicke doubted what the cient.

offence was; and the defendant being convicted, the indictment was removed into the King's Bench by certiorari for the opinion of that Court. Upon argument, and several cases cited, the Court held the offence to be a misdemeanor, and the conviction right; Lee, C. J. saying, that “all that was necessary in such a case, “ was an act charged, and a criminal intention joined to that

act.”(e) But though this doctrine of the learned judge be admitted to be correct, it does not appear to have been applicable to the facts of the case as charged, which did not amount to a criminal act by the defendant. And it is understood that this case was considered and thought untenable in a late case, in which it was holden that having counterfeit silver in possession with intent to utter it as good is no offence, there being no criminal act done. The prisoner had been found guilty of unlawfully having in possession counterfeit silver coin with intent to utter it as good : but, on a case reserved, the judges were of opinion that there must be some act done to constitute a crime, and that the having in possession only was not an act. (f) But the having a large quantity of counterfeit coin in possession, under suspicious circumstances and unaccounted for, appears to have been considered as evidence of having procured it with intent to utter it as good, which is clearly a criminal act punishable as a misdemeanor. Thus upon an indictment for procuring counterfeit shillings with intent to utter them as good, the evidence was that two parcels were found upon the prisoner containing about twenty shillings each, wrapped up in soft paper to prevent their rubbing, and there was nothing to induce a suspicion that the prisoner had coined them; and on a case reserved, the Judges were of opinion unanimously, that procuring with intent to utter was an offence,

(c) 3 Inst, 147., and see in Rex v. to break, houses and steal goods; Cassano, 5. Esp. 231. an information Rex v. Lee and Olliers, Old Bailey, for attempting to bribe an officer of 1689; and a case of an indictment for the Customs.

making coining instruments, and hav(d) Anon. · before Adams, B. at ing them in possession with intent to Shrewsbury, cited in Schofield's case, make counterfeit money, Brandon's Cald. 400, and in Higgins's case, 2 case, Old Bailey, 1698; and also a case East. R. 14, 17, 22. This case is pro- where the party was indicted for bably the same as Rex v. Edwards, buying counterfeit shillings with an MS. Sum. tit. Perjury.

intent to utter them in payment, (e) Sutton's case, Rep. temp. Hardw. Cox's case, Old Bailey, 1690. 370. 2 Str. 1074. In this case there (f) Rex v. Stewart, Mich. T. 1814. were cited, in support of the pro- Russ. and Ry. 288. S. P. Rex v. secution, a case of a conviction of Heath, East, T. 1810. Russ. and Ry. three persons for having in their cus

184. tody divers picklock keys with intent

ments of

and that the having in possession unaccounted for, and without any circumstanees to induce a belief that the prisoner was the maker, was evidence of procuring. (g) But the effect of such evidence would be removed by circumstances sufficient to induce a suspicion that the prisoner was the maker of the coin found in his possession : and, upon the argument in the last case, Thomson, C. B. mentioned a case where he had directed an acquittal, because, from certain powder found upon the prisoner, there was a presumption that he was the maker of the coin. (1)

With respect to persons having implements for house-breaking, Persons hav&c. in their possession with a felonious intent, the Legislature has ing imple made some provisions. The 23 Geo. 3. c. 88. enacts, that if house-breakany person shall be apprehended, having upon him any picklock ing with felokey, crow, jack, bit, or other implement, with an intent felo- nious intent. niously to break and enter into any dwelling-house, warehouse, coach-house, stable, or outhouse; or shall have upon him any pistol, hanger, cutlass, bludgeon, or other offensive weapon, with intent feloniously to assault any person, or shall be found in or upon any dwelling-house, warehouse, coach-house, stable, or outhouse, or in any inclosed yard, or garden, or area belonging to any house, with an intent to steal any goods and chattels, every such person shall be deemed a rogue and vagabond within the intent and meaning of the 17th Geo. 2. c. 5. And in some instances an act, accompanied with a certain intent, has been made a felony by particular statutes; as by the 25th Geo. 2. c. 10. s. l. the breaking or entering by force into any mines of black lead with intent to steal, is made felony punishable by imprisonment and whipping, or by transportation. And the 4th Geo. 4. c. 46. s. 2. enacts, that if any person shall, by day or night, break into any house or other place mentioned in the act with intent to cut, destroy, &c. any woollen, silk, &c. he shall be guilty of felony.

Where an offence is not so at common law, but made an offence Offences, by act of parliament, an indictment will lie where there is a substan

created by

statute, when tive prohibitory clause in such statute, though there be afterwards indictable. a particular provision and a particular remedy given. (k) And it is stated as an established principle that when a new offence is created by an act of parliament, and a penalty is annexed to it by a separate and substantive clause, it is not necessary for the prosecutor to sue for the penalty; but he may proceed on the prior clause, on the ground of its being a misdemeanor. (1) And wherever a sta

(5) Rex v. Fuller and Robinson, East. T. 1816. MS. Bayley J. Russ. and Ry. 308. In the marginal note to Parker's case, I Leach 41, it is stated, that having the possession of counterfeit money with intention to pay it away as and for good money, is an indictable offence at common law. This may be criminal in some cases of such possession as we have seen above: but qu. if the point, as stated in the inarginal note, was actually decided in Parker's case.

(h) Fuller and Robinson's case, ante, note (8).

(k) Rex v. Wright, 1 Burr. 543.

(0) By Ashhurst J. in Rex v. Harris, 4 T. R. 205. And this principle has been held to apply, where the clause annexing the penalty was in the same section of the statute. Thus the repealed clause 5th Eliz. c. 4. s. 31. enacted that it shall not be lawful “ to any person to set up, &c. any "craft, mystery, &c. except he shall “ have been brought up therein seven

years as an apprentice, &c.” upon pain that every person willingly offending or doing the contrary forfeit for every default forty shillings for

a Tith =

tute forbills the doing of a thing, the doing it wilfully, although
without any corrupt motive, is indictable. (m) If a statute enjoin
an act to be done, without pointing out any mode of punishment,
an indictment will lie for disobeying the injunction of the Legisla-
ture. (n) And this mode of proceeding in such case is not taken
away by a subsequent statute pointing out a particular mode of
punishment for such disobedience. (c) Where the same statute
which enjoins an act to be done contains also an enactment pro-
viding for a particular mode of proceeding, as commitment, in case
of neglect or refusal, it has been doubted whether an indictment
will lie. (a) But where a statute only adds a further penalty to
an offence prohibited by the common law, there is no doubt but
that the offender may still be indicted, if the prosecutor think fit,
at the common law. (p) Where a statute makes that felony which
before was a misdemeanor only, the misdemeanor is merged, and
there can be no prosecution afterwards for the misdemeanor : but
if it gives a new punishment or new mode of proceeding for what
before was misdemeanor, without altering the class or character of
the offence, the new punishment or new mode of proceeding is
cumulative only, and the offender may be proceeded against as
before for the common law misdemeanor. Therefore, notwith-
standing the provisions of 9 and 10 W.3. c. 32. against blasphemy,
it was held that a blasphemous libel might be prosecuted as a
common law offence. (z) It may be observed also, that it is an
offence at common law to obstruct the execution of powers granted
by statute. (9) But where a public act regulates rights which are
merely private, an indictment will not lie for the infringement of
those rights: as if a statute empowers the setting out of private
roads and the directing their repairs, an indictment does not lie

for not repairing them. (b) When offences

Where the statute making a new offence only inflicts a forcreated by sta- feiture and specifies the remedy, an

indictment will not
tute are not

every month; and the method of pro- implication. By Ashhurst J. in Cates v.
ceeding upon this statute was cither Knight, 3 T. R. 445.
by information qui tam in the court (a) Rex v. Commings and another,
of oyer
and terminer or sessions of the 5 Mod. 179. Rex v.

.King, 2 Str. 12681
county, &c. where the offence was Cases of indictments against overseers
committed, to recover the penalty, or for neglecting to account, and for not
by indictment in those courts. See the paying over the balance within the
cases collected in the note to Rex v. time limited by the statute. But see
Kilderby, 1 Saund. 312 a. But it the authorities: and, in 2 Nol P.
should be observed that a subsequent is stated that an indictment will lie in
section (39) gave authority to pro- these cases, though the statute pro-
ceed by indictment, or by information, vides another remedy hy commitment.

(p) 2 Hawk. P. C: c. 25. 8. 4. Rex (m) Rex v. Sainsbury, 4 T. R. 457, v. Wigg, Lord Raym. 1168.2 Salk. where it was held to be a misdemeanor 460. And see the cases collected in in magistrates to grant an ale licence Rex t'. Dickenson, 1 Sauod. 135, a. where they had no jurisdiction. See

note (4). 'post, Book 11. Chap. xiv.

(2) Rex v. Carlisle, 3 B. & A. 161,
(n) Rex v. Davis, Say. 133.

() Rex v. Boyal, 2 Burr. 832. Rex (9) Rex v. Smith and Others, Dougl.
v. Balme, Cowp. 648. cited in the notes 441. And an indictment for yuch of-
to 2 Hawk. P. C. e. 25. . 4.

fence need not, and ought not, to con-
nerally speaking, the Court of K. B.

clude contra formam statuii. cannot be ousted of its jurisdiction (6) Rex v. Richards, 8T: R, 637. - but by express words, or by necessary

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lie. (r) The true rule is stated to be this: Where the offence was punishable by a common law proceeding, before the passing of a statute which prescribes a particular remedy by a summary proceeding, then either method may be pursued, as the particular remedy is cumulative, and does not exclude the common law punishment : but where the statute creates a new offence by prohibiting and making unlawful any thing which was lawful before, and appoints a particular remedy against such new offence by a particular sanction and particular method of proceeding, such method of proceeding must be pursued and no other. (s) The mention of other methods of proceeding impliedly excludes that of indictment: (l) unless such methods of proceeding are given by a separate and substantive clause. (i) Thus it has been held, (u) and seems now to be settled, (w) that where a statute making a new offence not prohibited by the common law appoints in the same clause a particular manner of proceeding against the offender, as by commitment or action of debt or information, without mentioning an indictment, no indictment can be maintained. By 21 H. 8. c. 13. s. I. no spiritual person shall take land to farm on pain to forfeit 101. per month; and it was decided on this statute, that as the clause prohibiting the act specified the punishment, the defendant was not liable to be indicted. (f) And it was held not to be an indictable offence to keep an alehouse without a licence, because a particular punishment, namely, that the party be committed by two justices, was pro vided by the statute. (x) And an indictment for assaulting and beating a custom-house officer in the execution of his office was quashed, because the statute 3 Car. I. c. 3. appointed a particular mode of punishment for that offence. (y) So an indictment for killing a hare was quashed, on the ground that it was not indictable; the statute 5 Anne, c. 14. having appointed a summary mode of proceeding before justices. (2) In one case, where no appropriation of the penalty, nor mode of recovering it, was pointed out by the statute, the Court held that it could not be recovered by indictment; but was in the nature of a debt to the crown, and suable for in a Court of revenue only. (a)

Amongst other decisions as to cases which cannot be made the Cases not subject of indictment, it appears to have been ruled that an indictment will not lie for setting a person on the footway in a street to distribute handbills whereby the footway was impeded and ob


(r) Rex v. Wright, i Burr. 543. (.) Anon. 3 Salk. 25. S. P. Watson's Rex o. Douse, 1 Lurd Raym. 672. case, I Salk. 45. aud Rex v. Edwards,

(*) Rex v. Robinson, 2 Burr. 805. 3 Salk. 27. And see Faulkner's case, Rex v. Carlisle, 3 B. & d. 163. Rex 1 Saund. 248. and Mr. Serj. Williams's v. Boyall, 2 Burr. 839. See also Hart- note (3) at page 250 e. leg e. Hooker, Cowp. 524. Rex v. (y) Anon. 2 Lord Raym. 991. 3 Salk. Wrigbt, 1 Burr. 513.' Rex v. Baline, 189. Rex v. James, cited in Rex v. Cowp. 650. And see Faulkner's case, Buck, I Stra. 679. I Sauod. 250, note (3).

(2) Rex v. Buck, 1 Stra. 679. (1) 2 Hawk. c. 25 s. 4.

(a) Rex v. Malland, 2 Stra. 828. a (1) Ante, p. 47.

case upon the 12th Geo. I. c. 25. which (u) Glass's case, 3 Salk. 350.

imposes a penally of twenty shillings (v) ? Hawk. c. 25. §. 4.

per thousand for burning place bricks Rex v. Wright, 1 Burr. 543. and stock bricks together. VOL. I.


structed; (b) nor for throwing down skins into a public way, by which a personal injury is accidentally occasioned; (c) nor for acting, not being qualified, as a justice of peace; (d) nor for selling short measure ; (e) nor for excluding commoners by inclosing ; (f) nor for an attempt to defraud, if neither by false tokens or conspiracy;(g) nor for secreting another; (h) nor for bringing a bastard child into a parish;(i) nor for entertaining idle and vagrant

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(6) Rex v. Sermon, 1 Burr.516. But pects a matter transacted in the it was held by Lord Ellenborough that course of trade, and where no toevery unauthorised obstruction of a “ kens were exhibited by which the highway, to the annoyance of the party acquired any greater degree king's subjects, is an indictable offence " of credit, if the case had been that in Rex v. Cross, 3 Campb. 227. where " this miller was owner of a sokeit was held to be an indictable offence “ mill, to which the inhabitants of the for stage coaches to stand plying for vicinage were bound to resort, in passengers in the public streets. “ order to get their corn ground, and (c) Rex v. Gill, i Stra. 190.

“ that the miller, abusing the confi(d) Casile's case, Cro. Jac. 643. “ dence of this his situation, had made

(e) Rex v. Osborn, 3 Burr. 1697 : “ it a colour for practising a fraud, but selling by false measure is indict- “ this might have presented a differable. Ibid.

“ent aspect; but as it now is, it seems f) Willoughby's case, Cro. Eliz. “ to be no more than the case of a 90.

common tradesman, who is guilty (g) Rex v. Channell, 2 Stra. 793. “ of a fraud in a matter of trade or Indictment against a miller for taking dealing; such as is adverted to in and detaining part of the corn sent to “Rex v. Wheatley, and the other him; and Rex v. Bryan, 2 Stra. 866. cases, as not being indictable.” And Anon. 6 Mod. 105. Rex v. Wheatley, see also Rex v. Bower, Cowp. 323, as 2 Burr. 1125. Rex v. Wilders, cited to the point that for an imposition, 2 Burr. 1128. and Rex v. Haynes, 4 which a man's own prudence ought to M. & S. 214. This last case was an guard him against, an indictment does indictment against a miller, for receiv- not lie, but he is left to his civil reing good barley to grind at his mill, medy. But in Rex v. Dixon, 3 M. & and delivering a mixture of oat and S. 11. it was held, that a baker who barley meal, different from the pro- sells bread containing alum, in a shape duce of the barley, and which was which renders it noxious, is guilty of musty and unwholesome. On the part an indictable offence, if he ordered of the prosecution, a note in 1 Hawk. the alum to be introduced into the P. C. c. 71. s. 1. referring to I Sess. bread, although he gave directions for Ca. 217. was cited, where it is laid mixing it up in a manner which would down, “ that changing corn by a mil- have rendered it harmless. See Post, " ler, and returning bad corn instead Book II. Chap. ix. s. 2. “ of it, is punishable by indictment ; (h) Rex v. Chaundier, 2 Lord Kaym.

for, being in the way of trade, it is 1368: an indictment for secreting A., “ deemed an offence against the pub- who was with child by the defendant, “ Jic:" but it was held that the in- to hinder her evidence, and to elude dictment would not lie. Lord Ellen- the execution of the law for the crime borough, in giving judgment, said,

aforesaid. But qu. that if the allegation had been that the (i) Rex v. Warne, 1 Stra. 644, it miller delivered the mixture as an ar- appearir.g that the parish could not ticle for the food of man, it might be burthened, the child being boro out possibly have sustained the indictment, of it. But see a precedent of an inbut that he could not say that its being dictment for a misdemeanor at commusty and unwholesoine necessarily mon law, in lodging an iomate, who and ex vi termini imported that it was was delivered of a basiard child,which for the food of man ;, and it was not became chargeable to the liberty. 2 stated that it was to be used for the Chit. Crim. Law, 700. And see also sustentation of man, but only that it id. 699. and 4 Wentw. 353. Cro. Circ. was a mixture of oat and barley meal. Comp. (7th ed.) 648, precedents of His Lordship then proceeds: was to indictments for misdemcanors at com“ the other point, that this is not an mon law, in bringing such persons “ indictable offence, because it res- into parishes in which they had no

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