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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:(1) 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 indictinent can be maintained. By 21 H. 8. c. 13. s. 1. 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. 1. 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. (-) 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. («)
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, l Burr. 543. Rex v. Douse, 1 Lord Raym. 672.
(8) Rex v. Robinson, 2 Burr. 805. Rex v. Carlisle, 3 B. & A. 163. Rex v. Boyall, 2 Burr. 832. See also Hartley v. Hooker, Cowp. 524. Rex v. Wright, I Burr. 543. Rex v. Balme, Cowp. 650. And see Faulkner's case, | Saund. 250, note (3).
(1) 2 Hawk. c., 25 s. 4.
(f) Rex v. Wright, ! Burr. 543. VOL, I.
(x) Anon. 3 Salk. 25. S. P. Watson's case, 1 Salk. 45. and Rex v. Edwards, 3 Salk. 27. And see Faulkner's case, I Saund. 248. and Mr. Serj. Williams's nole (3) at page 250 e.
(y) Anon. 2 Lord Raym. 991. 3 Salk. 189. Rex v. James, cited in Rex v. Buck, 1 Stra. 679.
(2) Rex v. Buck, 1 Stra. 679.
(a) Rex v. Malland, 2 Stra. $28. a case upon the 12th Geo. I. c. 25. which imposes a penally of twenty shillings per thousand for burning place bricks and stock bricks ether.
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 persons in the defendant's house ;(k) nor for keeping a house to receive women with child, and deliver them. (1) And cases of non-feasance and particular wrong done to another are not in general the subject of indictment: but we have seen that circumstances may exist of mere non-feasance towards a child of tender years (such as the neglect or refusal of a master to provide sufficient food and sustenance for such a child, being his servant and under his dominion and controul), which may amount to an indictable offence. (m)
(6) Rex v. Sermon, 1 Burr. 516. But it was held by Lord Ellenborough that every unauthorised obstruction of a highway, to the annoyance of the king's subjects, is an indictable offence in Rex v. Cross, 3 Campb. 227. where it was held to be an indictable offence for stage coaches to stand plying for passengers in the public streels.
(c) Rex v. Gill, 1 Stra. 190.
(e) Rex v. Osborn, 3 Burr. 1697: but selling by false measure is indictable. Ibid.
(f) Willoughby's case, Cro. Eliz. 90.
(8) Rex v. Channell, 2 Stra. 793. Indictment against a miller for taking and detaining part of the corn sent to him; and Rex v. Bryan, 2 Sira. 866. Anon. 6 Mod. 105. Rex r'. Wheatley, 2 Burr. 1125. Rex v. Wilders, cited 2 Burr. 1128. and Rex v. Haynes, 4 M. & S. 214. This last case was an indictment against a miller, for receiving good barley to grind at his mill, and delivering a mixture of oat and barley meal, different from the produce of the barley, and wbich was musty and unwholesome. On the part of the prosecution, a nole in 1 llawk. P. C. c. 71. s. 1. referring to 1 Sess. Ca. 217. was cited, where it is laid down, “ that changing corn by a mil" ler, and returning bad corn instead “ of it, is punishable by indictment; “ for, being in the way of traile, it is “ deemed an offence against the pub“ lic:" but it was held that the indictment would not lie. Lord El!cnborough, in giving judgment, said, that if the allegation had been that the miller delivered the mixture as an article for the food of man, it might possibly have sustained the indictment, but that he could not say that its being musty and unwholesome necessarily and ex vi termini imported that it was for the food of man; and it was not stated that it was to be used for the sustentation of man, but only that it was a mixture of oat and barley meal. His Lordship then proceeds:
66 Rex v.
* as to the other point, that this is not an " indictable offence, because it res
pects a matter transacted in the
course of traile, and where no to“ kens were exhibited by which the "party acquired any greater degree “ of credit, if the case had been that " this miller was owner of a soke“ mill, to which the inhabitants of the '“ vicinage were bound to resort, in “ order to get their corn ground, and “ that the miller, abusing the confi“ dence of this his situation, bad made “ it a colour for practising a fraud, “ this might have presented a differ“ ent aspect; but as it now is, it seems “ to be no more than the case of a
common tradesman, who is guilty “ of a fraud in a matter of trade or dealing ; such as is adverted to in
Wheatley, and the other cases, as not being indictabl..” And see also Rex v. Bower, Cowp. 323, as to the point that for an imposition, which a man's own prudence ought to guard him against, an indictment does not lie, but he is left to his civil remedy. But in Rex v. Dixon, 3 M. & S. 11. it was held, that a baker who sells bread containing alum, in a shape which renders it noxious, is guilty of an indictable offence, if he ordered the alum to be introduced into the bread, although he gave directions for mixing it up in a manner which would have rendered it harmless. See Post, Book 11. Chap. ix. s. 2.
(h) Rex v. Chaundler, 2 Lord Raym. 1368: an indictment for secreting A., who was with child by the defendant, to hinder her evidence, and to elude the execution of the law for the crime aforesaid. But qu.
(i) Rex v. Warne, 1 Stra. 644, it appearing that the parish could not be burthened, the child being born out of it. But see a precedent of an indictment for a misdemeanor at common law, in lodging an inmate, who was delivered of a bastard child, which became chargeable to the liberty. 2 Chit. Crim. Law, 700. And see also id. 699. and 4 Wentw. 353. Cro. Circ. Comp. (7th ed.) 648, precedents of indictments for misdemeanors at common law, in bringing such persons into parishes in which they had no
It has been held, that where a mayor of a city, being a justice, made an order that a company in the city should admit one to be a freeman of that corporation, and the master of the company, being served with the order, refused to obey it, such refusal was not the subject of indictment. (n) And an indictment will not lie for not curing a person of a disease according to promise, for it is not a public offence, and no more in effect than a ground for an action on the case. (0) To keep an open shop in a city, not being free of the city, contrary to the immemorial custom there, has been held not to be indictable. (p) With regard to trespasses, it has been held that a mere act of Trespasses not
indictable. trespass (such as entering a yard and digging the ground, and erecting a shed or cutting a stable,) committed by one person, unaccompanied by any circumstances constituting a breach of the peace, is not indictable; and the Court quashed such indictment on motion. () And an indictment against one person for pulling off the thatch of a man's house, who was in the peaceable possession of it, was also quashed on motion. (r) So an indictment for taking away chattels must import that such a degree of force was used as made the taking an offence against the public. An indictment averred that the defendant with force and arms unlawfully, forcibly, and injuriously seized, took, and carried away, of and from J. S., and against his will, a paper writing purporting to be a warrant to apprehend the defendant for forgery; and, after a conviction, a motion was made in arrest of judgment on the ground that the charge did not amount to an indictable offence. Perryn, B. took time to consider to the subsequent assizes, and had the case argued before him; and then held the objection valid, as the indict
settlements, and in which they shortly died, whereby the parishioners were put to expense. In a late case it is stated to have been held, that no indictment will lie for procuring the marriage of a female pauper with a labouring man of another parish, who is not actually chargeable. Rex v. Tanner and Another, 1 Esp. 301. But if the facts of the case will warrant a charge of conspiracy, the offence would be substantiated, if under the circumstances the parish might possibly be put to expense. See 1 Nol. P. L. Settlement by Marriage, Sect. I. in the notes.
(k) Rex v. Langley, 1 Lord Raym. 790.
(1) Rex v. Macdonald, 3 Burr. 1646.
(0) Rex v. Bradford, 1 Lord Raym.
(p) Rex v. George, 3. Salk. 188.
(9) Rex v. Storr, 3 Burr. 1699.
ment charged nothing but a mere private trespass, and neither the king nor the public appeared to have any interest therein. (a)
But where the indictment stated the entering a dwelling house, and vi et armis and with strong hand turning out the prosecutor, the Court refused to quash it. (s) And an indictment will lie for taking goods forcibly, if such taking be proved to be a breach of the peace:(t) and though such goods are the prosecutor's own property, yet, if he take them in that manner, he will be guilty. (u)
BOOK THE SECOND.
OF OFFENCES PRINCIPALLY AFFECTING THE
THE PUBLIC RIGHTS.
CHAPTER THE FIRST.
OF COUNTERFEITING OR IMPAIRING COIN-OF IMPORTING INTO
THE KINGDOM COUNTERFEIT OR LIGHT MONEY-AND OF XX-
Of Counterfeiting Coin. The Legislature has made several provisions against the counterfeiting of the following descriptions of coin, namely :-1. The king's money, properly so called.—II. Foreign gold, silver, or copper coin.-And, Ill. The copper money of this realm.
1. The first of these, the king's money, is protected by enact- of counterments, which place the offence of counterfeiting it in the highest feiting the class of crimes, upon the ground that the royal majesty of the king's money. crown is affected by such offence in a great prerogative of government; the coining and legitimation of money, and the giving it its current value, being the unquestionable prerogatives of the crown. (a) The statute 25 Edw. 3. st. 5. c. 2. declares it to be high treason “if a man counterfeit the king's money.” And, as there are no accessories in treason, it follows that all who, by furnishing the necessary tools, or by any other means, aid or assist in the coining, are guilty of the offence as much as he whose hand is employed. (B)
It appears that the coin or money of this kingdom consists pro- What is the perly of gold or silver only, with a certain alloy, constituting what king's money. is called sterling, coined and issued by the king's authority; and that the statute of Edward the Third, in mentioning “the king's money” generally, refers to such money; which is supposed also to be referred to by any other statute naming “money” generally. (C) The weight, alloy, impression, and denomination, of money made
(a) I llale 188. (b) Kel. 33.
I East. P. C. 148.
(c) i East. P. C. 147. And see i Hale, chap. 17, 18, 19, and 20.