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is given in one county and the death happens in another, it is triable where the death hap

If a parent or master destroy the existence of al By 2 and 3 Edw. 6. c. 24. where the wound child or servant by unmerciful and barbarous correction, or by using an instrument improper and likely to occasion death-it is murder. 85. s. 5 Accidentally to kill a man by shooting at poultry with intent to steal them is murder. 86

It is murder to kill, by going deliberately with a
horse used to strike, or by discharging a gun
among a concourse of people; or by throwing
a stone or a piece of timber from a house into
a frequented street, &c.
ib.
If a man strike another upon malice prepense,
and then fly to the wall and there kill him;
yet he is guilty of murder.
87. s. 18
By 1 Jac. 1. c. 8. where any person shall stab
another, that hath not then any weapon drawn,
or that hath not then first stricken, and the
person stabbed shall die thereof within six
months, the person stabbing shall lose the
benefit of clergy, though no malice aforethought
be proved.

89

92. s. 4

pens.

94

By 26 Hen. 8. c. 6. a murder in Wales may be
tried in the next English county. ib. s. 14
The malicious killing of any person, whatsoever
nation or religion he be of, or of whatsoever
crime attainted, is murder.
ib. s. 15
Causing an abortion was anciently held to be
murder.
ib. s. 16
But where one counsels a woman to kill her
unborn child, and she does it accordingly
when it is born, he is an accessary to murder.

95. s. 17

And by 21 Jac. 1. c. 27. it was enacted, to
conceal the birth of a dead bastard child should
be evidence of having murdered it, but the
act was repealed by stat. 43 Geo. 3. c. 58. 95
Any formed design of doing mischief may be
called malice.
ib.

Where two persons meet on a precedent quar-
rel, in cool blood, and fight, and one of them
is killed, this is murder.
96. s. 21
And in duelling, wherever the circumstances
afford the presumption that the blood was cool
at the moment of the homicide, it is murder.
ib. 22, 23

The several constructions which have been made upon this act. 89, 90 Homicide may be committed not only by those means which are directly mortal, but also by such as only probably and eventually will occasion death. As exposing a sick man to the inclemency of No pretence under which malice may be covered winter; or a child to the ravages of a bird of shall elude the justice of the law. ib. s. 24, 25 prey; or an innocent man to the false accusa- If a man assault another with malice, and then tions of another, on which he is condemned fly, but on being followed kill his antagonist, and executed; or to incite a madman either it is murder. to destroy his own life or that of another; or To resent provocation in a manner manifestly to lay poison for one man and it is taken endangering life, is murder if death ensues. ib. s. 27

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97. s. 26

by another; or to place a prisoner in a room with another who has an infectious disease; In duelling, not only principals but seconds also or to destroy the constitution by denying a are guilty of murder, if the fight prove fatal. prisoner the decencies of nature, &c. &c. and perhaps by suffering a mischievous animal to roam abroad.

ib.

98. s. 33

No words, gestures, &c. will excuse from the 92 guilt of murder. Wherever a man happens to kill another in the execution of a deliberate purpose to commit a felony, he is guilty of murder.

But no person, by any act, shall be said to kill
another, unless he die within a year and a
day.
93. s. 9
How the year and day shall be computed. 93
If the person die within the year and day, it
shall be no excuse that he might have reco-
vered if he had been taken proper care of.

c. 21.

86

So also it is murder where not only the act of felony immediately causes the death, but where it occasionally causes such a misfortune.

100. s. 45

ib. s. 10 To kill a magistrate, &c. who interposes in a quarrel in order to suppress it, is murder.

Where the wound and death are both out of the kingdom, or the one in the kingdom and the other abroad, it could not be tried by the common law; but this is remedied by 2 Geo. 2. 93, 94 Death in England of a wound given abroad, may be examined by the constable and marshal, and by 33 Hen. 8. c. 23. if examined by the privy council, the principals may be tried in any county by commissioners.

93. s. 11 A murder at sea anciently cognizable by the civil law. ib. s. 12. Now by 27 Hen. 8. c. 4. and c. 15. it may be tried before the king's commissioners, according to the common law. ib. How the killing one who dies at land of a wound received at sea shall be tried. 94

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101

Where divers persons resolve generally to resist all opposers in the commission of any breach of the peace, and to execute it in such a manner as naturally tends to raise tumults and affrays, and in so doing happen to kill a man, they are all guilty of murder.

ib. But the fact must appear to have been com. mitted strictly in prosecution of the purpose for which the party were assembled. ib. To kill a sheriff or any of his officers in the lawful execution of civil process is murder, although the process be erroneous.

103 How far homicide in an attempt to usurp unlawful authority, shall be construed murder.

104 Death

104

Death occasioned by an idle wanton action,
likely to endanger life, is murder.
A physician or surgeon, whose ignorant admi-
nistration of medicine may have occasioned
the death of the patient, is not thereby guilty
of murder; though anciently held otherwise.
104

MUTE.

By 12 Geo. 3. c. 20. standing mute in felony or piracy, either on an indictment or appeal, amounts to conviction.

NAVIGABLE RIVERS.

Larceny on navigable rivers excluded
Destroying locks on navigable rivers.

260

692

public, by doing any thing injurious to all the
king's subjects, or by omitting to do that which
the common good requires.
Therefore private annoyances are not the subject
of public prosecution, the injury must be re-
paired in a civil action.
ib. s. 2
Consequently where the indictment charges the
damage of private persons only, it is bad. ib.
The indictment of a common scold must be com-
·munis rixatrix.
693. s. 5

Common bawdy-houses are indictable as com-
mon nuisances.
693. s. 6
ib. s. 7

So rope-dancing, common gaming-houses, unclergy. But neither an old nor a new dove-cote are nuilicensed play-houses.

204
340

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238 The commissioners who sell old stores, may grant such certificate to buyers, who may also grant the same to those who purchase again. ib. By 9 Geo. 1. c. 8. this offence is extended to timber, thick stuff, and plank. 240 Power given to judges of assize, or justices at session, to determine the offence, and mitigate the penalty to public whipping and hard labour for three months.

sances, for the erecting them may be justified by prescription, &c. ib. s. 8 And a gate across a highway, which has so continued time out of mind, is no nuisance, for the prescription shall be intended; but a new gate so erected may be abated as a nuisance. 694. s. 9 Tallow boilers, brewhouses, glass-houses, swineyards, a manufactory for acid spirit of sulphur, &c. erected in improper places, may be nuiib. s. 10 To divert the course of a navigable river, and, perhaps, to multiply inmates during the prevalence of a contagion, are nuisances. ib. s. 11 To disturb the neighbourhood with a speaking trumpet; to suffer a house to grow dangerously ruinous; to obstruct the intercourse of a public river; to damage a public highway; to put an improper ship into Billinsgate Dock, are nuisances. ib. notis

sances.

But an hospital for inoculation is not a nuisance;
nor to lay bricks in a private fishery in the
Thames; nor to violate a public law; nor to
obstruct a prospect.
ib. notis

And

quare, if a coney-burrow is a nuisance.

ib. (N)

241 By 9 Geo. 3. c. 30. the officers of the king's yards, and the commissioners of the navy, are By 6 Geo. 1. c. 18. s. 19. all public bubbles are authorized to act as justices of the peace in apprehending, &c. offenders. ib. The decisions which have been made on the above statutes.

242

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nuisances.

60 (N) Any one may pull down a common nuisance. 695. s. 12

And may justify a trespass for that purpose.

695

And the plea need not state that the party did as little damage as possible. ib.

Those who have the fishery of a river, or those who have a passage or easement therein, shall be obliged to abate a nuisance on such river, if none are bound to do it by prescription. ib. s. 13 A common scold is punishable by the duckingib. s. 14 The punishment of common nuisance is fine and imprisonment. ib. And the offender shall be ordered by the judgment to abate the nuisance at his own costs.

stool.

ib. 696 to 703

It is implied in all penal statutes, that the de- Nuisances to highways. fendant must have notice of the accusation Are punishable by indictment in the court leet. against him.

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For matters relative to the necessary allegation | By 3 Jac. 1. c. 5. popish recusants convict are of the indictment.

OATHS.

703

At what time and in what manner members of corporations must take the oaths to govern

ment.

disabled in law as persons excommunicated, except the action concern some hereditament not seized by the king. 387

How a defendant shall take advantage of an action by such disabled papist. 387. s. 2 to 7 367. 370 By 1 Will. & Mary, c. 26. and 12 Ann. c. 2. papists are disabled to present to a church.

By 5 Eliz. c. 1. clergymen and recusants refusing a second tender of the oaths, are guilty of high treason.

ib. s. 7

30. s. 104 By 3 Jac. 1. c. 5. papists are disabled from bearing any public charges or office in the state.

55.58

388 ib.

By 1 Eliz. c. 1. 5 Eliz. c. 1. 3 Jac. 1. c. 4.
7 Jac. 1. c. 6. 1 Will. and Mary, c. 8. and 7
Will. 3. c. 24. all ecclesiastical persons, tem- Observations upon this clause.
poral officers, and certain other persons in any
public employ, shall take the oaths or be liable
to the penalties of pramunire.
By the common law, all laymen above the age
of twelve years are bound to take the oaths of
.. allegiance.
By 1 Will. and Mary, c. 8. the penalty of 40s.
or three months imprisonment, is inflicted on
those who shall refuse a tender of the oaths,
and if they refuse at the end of the three
months, a further penalty, &c.

But 3 Jac. 1. c. 5. a female papist is disabled
from claiming any part of a husband's perso-
nal estate, or any estate by way of courtesy or
dower.

67

389, 390 By 35 Eliz. c. 2. papists are restrained from going above five miles from home, without licence.

390

Who shall grant, and how such license shall be pleaded.

ib.

By what computation the distance shall be 68 reckoned.

ib.

How the members of the universities shall take By 3 Jac. 1. c. 5. and 30 Car. 2. c. 5. papists are the oaths, and what punishment they shall suffer.

restrained from appearing at court.. ib. 70. s. 8 By 3 Jac. 1. c. 5. papists are restrained from keeping arms, and from coming within ten miles of London.

By 1 Will. 3. c. 18. and 8 Geo. 1. c. 6. the form of the Quakers profession and affirmation scribed.

Conspiracy by oaths.

ODIO ET ATIA.

pre

449

391

71 By 3 Jac. 1. c. 5. feme covert papist, whose husband is not convicted of recusancy, who shall not conform within one year, shall forfeit two parts of her jointure.

A man committed for homicide might, anciently, sue out de odio et atia.

OFFICE AND OFFICERS.

88

392

By 3 Jac. 1. c. 5. a papist who has conformed, who shall not receive the sacrament within one year, shall forfeit £20 for the first; £40 for the second, and £60 for every other year. ib.

In what cases an office becomes forfeited by By 3 Jac. 1. c. 5. every papist who shall marry negligence, non-user, or corruption. 412 Public offices are not to be bought or sold.

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ib. By 3 Jac. 1. c. 5. every papist not excommunicated, who shall bury other than in a church or churchyard, shall forfeit £20. By 3 Jac. 1. c. 5. magistrates may search the houses of papists for popish relics and deface ib. s. 24 By 7 Jac. 1. c. 6. a feme covert papist who shall not conform within three months after conviction, shall be committed unless her husband pay £10. a month, &c. ib. In what cases the husband of a feme covert papist is not only liable to the forfeiture, but utterly disabled. ib. By 23 Eliz. c. 1. whoever shall perform mass shall forfeit 200 marks, and whoever shall hear mass 100 marks, or suffer imprisonment.

394

By 11 & 12 Will. 3. c. 14. whoever shall apprehend a popish priest for saying mass shall receive £100. and the priest shall suffer perpetual imprisonment. ib.

By 18 Geo. 3. and 31 Geo. 3. this penalty is repealed, provided the priest has complied with the injunctions of this act.

395

By

612

By 30 Car. 2. c. 1. those who refuse to make a In what case the benefit of a general pardon declaration against popery, are restrained from cannot be waived. sitting in parliament, and from holding a

place at court.

397

PARKS.

By 1 Will. & Mary, c. 9. those who refuse the By 21 Edw. 1. c. 2. and 3 and 4 Will. and declaration are restrained from living within ten miles of London, from keeping arms, and from presenting to a church. 398

By 1 Jac. 1. c. 4. whoever shall send another abroad for the purpose of receiving a popish education, shall be disabled in law and forfeit £100.

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399 By 3 Jac. 1. c. 5. whoever shall send a child abroad to prevent their good education in England, without license, shall forfeit £100. and such child shall be disabled to take, &c. ib. By 3 Car. 1. c. 2. to enter into any popish seminary abroad, or to cause another so to do, disables the offender in law, and incurs the forfeiture of his estates during life. 400

Mary, c. 10. trespassers in parks, resisting the keepers, may be slain by the keepers with impunity.

81

How far the power of a park-keeper will justify the trespass of a stranger, in homicide, on the grounds of a third person. 86

By 9 Geo. 1. c. 22. to appear armed and disguised in any deer-park, &c. is felony without clergy, but clergy restored 4 Geo. 4.

177 To hunt or wound any fallow deer in any inclosed deer-park, whether armed and disguised or not, is felony without clergy. 180 By 6 Geo. 1. c. 16. whoever shall destroy the fences of parks shall be committed for three months, &c. &c.

325

king's parks, forests, or chases, is transportation for the third offence.

329

By 11 & 12 Will. 3. c. 4. a severe punishment By 6 Geo. 3. c. 48. to destroy timber in the is inflicted on professed papists, unless by 18 Geo. 3. c. 60. and 31 Geo. 3. c. 32. they have complied with the injunction of the last mentioned act.

400.401.

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By 9 Geo. 3. c. 41. to destroy any underwoods, &c. in the king's parks or forests, &c. is punishable by fine and imprisonment, &c. 331 By 5 Geo. 3. c. 14. to enter into any inclosed parks, in or through which there is a river, stream, or pond, &c. and steal fish, or to aid in so doing, or to buy or receive such stolen fish, is transportation for seven years.

PEACE.

See BEHAVIOUR.

192

ib. Of what description of persons a justice of peace may, ex officio, and at discretion, demand surety of the peace.

By 11 & 12 Will. 3. c. 4. the chancellor may
make such order as he thinks agreeable to the
act upon any popish parent who shall compel It
a protestant child to change his religion, or
who shall not allow such child a sufficient
maintenance.

478

was the principal duty of a conservator to demand surety of the peace. ib. notis Neither a secretary of state, nor privy counsellor, 403 are conservators of the peace.

ib. (N)

By 23 Eliz. c. 1. and 3 Jac. 1. c. 4. to become All persons whatsoever under the king's protecperverted, or to pervert others to the see of Rome, is high treason.

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The judges will, in prudence, respite the execution of an infant in order to procure a pardon. If the marriage be disputed, the Court will frame the recognizance so as not to admit the fact. ib. notis 10. s. 13 A justice of peace ought to grant it, on demand, against any person under the degree of nobility, of sane memory, whether a magistrate or private person, and whether of age or not. 479 Infants and femes covert ought to find security by their friends.

In what case a forfeiture is not within a general
pardon.
377. s. 23
A pardon of felony discharges an indictment of
high treason, if it want the word proditoriè.
The forfeiture of personalty for suicide, is saved
by a pardon of the offence before inquisition
found.

71. s. 2

ib.

ib.

The safest way against a peer is by application to the chancery or king's bench. 78 Quare, If a joint recognizance may be taken for A pardon of felony extends not to piracy. surety of the peace. ib. notis 254. s. 13 For what causes surety of the peace is grantable. There can be no pardon of a recognizance of the peace before it is broken."

ib. 482 By 21 Jac. 1. c. 8. all process for the peace or good

landlord.

484

good behaviour, to be granted out of the Nor can a tenant beat another in defence of his chancery or king's bench, must be upon motion, in open court, upon the oath of the But a bare trespass to lands or goods, without party requiring it, &c. &c. &c. violence to the person, is not a cause of forfeiture. ib. s. 25

478

In what cases, under what circumstances, and
in what form, the court of king's bench will
grant surety of the peace.
480. notis
In what manner surety of the peace is grantable
by a justice of the peace.
ib. s. 9
Of the execution of the writ of supplicavit.
ib. s. 10
The warrant of a justice of the peace upon surety
of the peace can be executed only by those to
whom it is directed, unless directed to the
sheriff, &c.

Violence in any athletic sport, as cudgels, &c. is
not a cause of forfeiture, but a wound given in
playing with naked swords is.
ib. s. 26
A wound given by mischance or negligence is
no cause of forfeiture.
ib. s. 27
Such a recognizance shall not be forfeited, ex-
cept for some wilful breach of the peace. ib.

PEERS.
481 It is a contempt for a peer not to come to par-
liament on the day of summons; or to depart
from it without license.

PENSION.

55

In what case the officer may carry the party to gaol, without another warrant. ib. How the officer shall return the warrant if it be general, and how if it be special. ib. s. 13 In what manner process upon surety of the To receive a pension from a foreign prince withpeace may be superseded. out the king's permission, is highly criminal.

ib. s. 14

PERJURY

65

the taking absolutely a wilful false oath, required in any judicial proceeding, and material to the point in question, whether it is believed or not. 429 It must be deliberately taken, and not the effect of surprise, inadvertency, or mistake. ib. s. 2 It must be taken before those who are empowered to administer justice, and who have a competent jurisdiction of the subject-matter.

By 21 Jac. 1. c. 8. all writs of supersedeas must
be granted upon motion in open court, &c. ib.
What ought to be the form of the recognizance Is
entered into upon filing articles of the peace.
482. s. 15, 16
A recognizance of the peace may be discharged
by the demise of the king, or the party, if not
previously forfeited.
ib. s. 17
But a release of the party at whose complaint it
was taken is only an inducement with the
Court to discharge it.
ib.
The discontinuance of a recognizance is a ground
for discharging it.
ib.

ib.

ib.

A recognizance cannot be pardoned or released
before it is broken.
The executors of sureties to a recognizance con-
tinue bound for their testators.
A recognizance by supplicavit need not be cer-
tified without certiorari is brought. ib. s. 18
A recognizance of the peace, taken below, must
be certified to the next session by force of
3 Hen. 7. c. 1.
483
If the party then make default, the recognizance
then shall be certified into the superior court.
ib.

430. s. 3 As before persons authorized by the king to examine witnesses; or in a court of record upon issue therein; or before any court of equity, spiritual or other lawful court, whether of record or not; or before persons authorized by such courts, as the sheriff upon a writ of inquiry.

ib. So it is perjury to swear to a greater substance than a man possesses, in justifying bail; it may be committed in swearing the peace against another before a justice; or respecting forfeitures, or defective titles to land before commissioners. ib. But no oath of a mere private nature can be the ib. subject of perjury.

But the sessions have a discretion, upon cause
shewn, to excuse his default.
The sessions cannot proceed for the forfeiture.
But upon estreating the recognizance, the
courts at Westminster shall proceed to recover
it by scire facias, and not by indictment. ib.
A recognizance of the peace may be forfeited by
any actual violence to any person whatsoever.

ib. s. 20

431

Neither can any promissory oaths; and therefore official oaths for the true performance of duty cannot be punished as perjuries, but such an offender is liable to a severe fine. ib. No person can be indicted for perjury in a false oath administered by a person who has not competent and lawful authority in the subjectmatter on which the oath is taken. ib. s. 4

Or by any treason against the king, or unlawful| assembly, or even by words tending to a No oath administered by persons under an asbreach of the peace.

ib.

But bare words of heat and choler is not a cause
of forfeiture.
ib.
There are also many actual assaults on the per-
son of another which do not amount to a for-
feiture of such recognizances.
A variety of such assaults enumerated.

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But perjury may be committed in oaths administered under the authority of a commission, after it is determined by the demise of the

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ib. s. 23 484 And quare, if perjury may not be committed in A servant is liable to such a forfeiture for beating proceedings which are afterwards reversed for another in defence of his master's son-but not in defence of his master.

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