and every moment's continuance of the trespass and felony amounts to a new caption and asportation (e).

Where a clerk or servant has received his master's money in one county, for which he has refused to account to the master in another, it seems the (f) indictment should be laid in that county in which he refused to account.

The master residing in the county of Middlesex, the servant received the sum of 10s. for him in the county of S.; upon his return to his master, in the county of M., he was asked whether he had brought the money; he answered that he had not received it, and in fact never did account for it.

Upon being indicted in the county of Middlesex, it was objected for the prisoner, that he ought to have been indicted in Surrey, and the question was reserved for the consideration of the judges, who were of opinion, "that the indictment was well laid; for there was no evidence of any act to bring the prisoner within the statute, until he was called upon by his master to account; when called upon by his master to account, the prisoner denied that he had ever received it: this was the first act, from which the jury could say, that the prisoner intended to embezzle the money."

"There was no evidence of the prisoner's having done any act to embezzle in the county of Surrey, nor could

(e) 1 Hale, 507, 8. 2 Hale, 163. 2 Haw. c. 25. s. 38. East's P. C. 771. By the stat. 59 G. 3. c. 27. particular provisions are made for facilitating the trial of felonies committed on board of vessels employed on canals, rivers, and inland navigations. And by the stat. 59 G. 3. c. 96. provisions of a similar

nature are made with respect to felonies committed on stagecoaches, and other felonies committed on the boundaries of counties. See notes to the Precedents in Larciny and Appendix.

(f) Under the stat. 39 G. 3.

c. 85.

the offence be complete, or the prisoner be guilty, within the act, until he had refused to account to his master” (g).

In the case of the King v. Hobson (h), the prisoner had received the money in the county of Salop, and denied the receipt of it to his master in the county of Stafford; and when he went into the county of Salop, he persisted in that denial.

The judges (the point having been reserved) were of opinion, that there was sufficient evidence of a beginning to embezzle in the county of Salop, to make the offence triable in that county: and most of them thought, that the subsequent conduct of the prisoner, his not accounting to his master, and denying the receipt of the money, was evidence to shew that the original taking was with intent to secrete and embezzle, and so to steal within the meaning of the statute, and the more so as the act of secreting was a negative act; and some considered that the offence was triable in either county, as referable to the original taking in the one, and the not accounting, but denying the receipt when called upon in the other.

The rule of common law restraining jurors from inquiring into facts arising in another county, does not appear to have been at any time so strictly observed in misdemeanors inferior to treason and felony as in capital cases; for, as already observed, a party committing acts constituting a felony in two separate counties, might have been indicted of the misprision in either, though the jury, in trying the latter offence, must necessarily have taken cognizance of the entire felony (i).

So it has been holden, that a man, guilty of a nuisance in one county to the damage of another county, might

(g) R. v. Taylor, 3 B. & P.

(h) 1 East, P. C. Addenda,

596.

P. 24.

(i) Hale, 652.

be indicted in the first (k), or, according to Hawkins, in either county.

So where A. by reason of the tenure of certain lands in the county of B. is bound to repair a bridge in the county of C. if the bridge, be in decay, he may be indicted in the latter county (1).

An usurious contract having been made in London, the lender received money as the borrower's agent in Middlesex, and on accounting in London for the amount of those receipts, deducted the usurious interest. It was holden, in an action founded on this transaction, that the venue was well laid in London; and it was intimated by the court, that when a penal action is founded on facts arising in two counties, the venue ex necessitate may be laid in either (m).

An indictment (n) for a conspiracy may be tried in any county, in which an overt act has been committed in pursuance of the original illegal combination and design; so that where several conspired upon the high seas, to fabricate false vouchers to defraud certain commissioners in Middlesex, and in consequence those vouchers were delivered by innocent persons, their agents in Middlesex, the court intimated an opinion, that the offence had been properly tried in Middlesex, in analogy to the case of treason, which offence may be tried in any county in which an overt act has been committed.

So several defendants were holden to have been properly convicted upon an indictment for a conspiracy, though no joint conspiracy had been proved in the county where they were tried, but only overt acts done

(k) Staun. b. 2. 91. 19 E. 3. Ass. pl. 6.

(4) 5 T. R. 498. 5 H. 7. 3. contra.

(m) 2 T. R. 238. 2 B. and P. 381. 2 Taunt. 252.

(n) R. v. Brisac, 4 East, 164.

in consequence of a general conspiracy, evidenced by various acts in other counties (o).

And in case of misdemeanors, since all procurers are principals, the procurer is guilty of the offence wherever it is committed, in consequence of his procurement.

Thus if A. procure B. to publish a libel, A. is liable to be indicted (p) in every county in which B. publishes that libel (q). So if A. abroad, procure false vouchers to be delivered in Middlesex, which he has fabricated for the purpose of fraud, he is indictable in Middlesex (r).

An action of scandalum magnatum, which partakes of the nature (s) of a criminal proceeding, may be brought in any county, because the scandal raised of a peer reflects upon him throughout the kingdom.

Under the stat. 3 G. 2. c. 26. s. 4. against selling coals represented to be of a different quality from what they really are, the offence is completed, and ought to be tried in the county in which they have been delivered, though the contract of sale was made in a different county (t).

But under the same stat. s. 13. the offence of filling sacks with coals for sale, without first having duly measured them at the wharf or warehouse, is local, and must be tried in the county where the wharf or warehouse lies (u). Where time is an ingredient in the description of the offence, as in cases of homicide, where to inculpate the person striking, the death must happen within a year and

(0) R. v. Bowes and others. See 4 East, 171.

65.

(u) 4 East, 385. By stat. 31 Eliz. c. 5. s. 1. relating to

(p) R. v. Johnson, 7 East, informations and actions upon

(9) See also Girdwood's case,

post. and Leach, 169.

penal statutes, the offence shall be laid to be done in the county where it was done. The same

(r) R. v. Brisac, 4 East, 164. is enacted by 21 Jac. 1. c. 4.

(s) Gil. C. P. 90.

(t) 4 East, 385.

with respect to actions by com

mon informers.

a day after the stroke, or where a particular time is limited for commencing the prosecution by particular statutes, it is in general necessary, that the liability of the defendant, in point of time, should appear upon the face of the indictment; but this matter will afterwards be more fully considered, in common with the other averments connected with time (x).

Where the jurisdiction of the court depends upon particular circumstances, exclusive of the offence itself, it is frequently unnecessary to aver them upon the face of the indictment. Thus, though the common commission of gaol delivery extends only to prisoners in actual custody, it need not be averred upon the indictment, that the defendant was then in prison (y). So where the crown issues a commission to try certain persons in custody before a particular day, the indictment need not allege that the defendant was in custody before that day (z). So in an indictment for receiving stolen goods, under the statute 22 G. 3. c. 58. which authorizes the trial of the receiver for a misdemeanor, where the principal has not been convicted, it is unnecessary to aver, that the principal has not been convicted, though certainly it is that negative circumstance which gives the court jurisdiction (a).

(x) Stowe's case, Cro. J. 603. Doug. 235.

(y) Berwick's case, Fost. 10. 12 Mod. 449.

(z) Berwick's case, Fost. 10. But note, this did appear upon the record, which alleged that the prisoner, at the time of arraignment (which was before the day limited by the commission), being brought to the bar in custody of the sheriff,

to whose custody he had before been committed, &c. And in the case of Angus Macdonald, Fost. 59. where this answer could not be given, for the day was past at the time of trial, it was thought fit to introduce the special averment into the indict

ment.

(a) Baxter's case, Leach, 660. 5 T. R. 85. Pollard's case, 2 Ld. Ray. 1370.