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there is the same necessity for setting forth, in an indictment for a larceny committed in a ship or vessel, the name of the owner of the ship or vessel, as for alleging the name of the owner of a dwelling house, in which such an offence has been committed.

It is undoubtedly true, that no subject can be held to answer for any crime or offence, until the same is fully and plainly, substantially and formally described to him.' 12 art. of the Dec. of Rights. The object of this constitutional provision is to secure to a party a correct description of the offence of which he is accused, that he may be enabled to prepare for his defence, and to plead his acquittal or conviction afterwards. In larceny, the party should be charged by his true name and mystery. The indictment should also contain a description of the property taken, alleging its value, and to whom it belonged. If it was an aggravated larceny, as committed in a dwelling house, or in a ship or vessel, such description should be given of the dwelling house and vessel as will distinguish them from all others. The usual and most correct description of a dwelling house is by the name of the owner or of the occupant at the time. This is easily ascertained and proved. But if the name of the owner or occupant at the time is not known, it may be described as belonging to a person or persons to the jurors unknown. This will enable the party afterwards to plead the judgment of acquittal or conviction to a new indictment, and to aver, that it was one and the same offence.

But the name of the owner of a vessel is not so easily known or proved; and whatever is necessary to be averred, must be proved. It is not necessary for the safety of the party, that thie name of the owner of the vessel should be alleged. For vessels are known by their own names; and when a party is charged with stealing in a certain vessel having such a name, he knows with certainty the fact charged, and for which he must answer, and he cannot be convicted of a larceny in a vessel of a different name. If a party be indicted for stealing in the dwelling house of A D, and it appears on the trial to be the dwelling house of C D, the variance is fatal. Archbold's Summary, 11. So if a person be indicted for stealing in a ship belonging to A D, and it should appear on the trial that the ship belonged to C D, it would be fatal. For although it may not be necessary to allege the owner's name, yet the ownership is made material by the allegation, and must be proved.

A difference is taken in these cases between alleging impertinent matter, foreign to the cause, and in misstating the ground of the action in a fact which is not material. Matter impertinent may be disregarded, but matter immaterial cannot be stricken out, and must be proved. Dong. 665, Briston v. Wright. What cannot be rejected from an indictment as surplusage, must be proved in substance as charged. Now if the name of the owners of the vessel must be alleged, it will often be inconvenient, and in many cases impossible, to prove the fact. The best evidence must be produced ; of course. the ship’s papers will be required, which would cause great prejudice to navigation by the detention of vessels and by the delay of voyages. If a party is charged with a larceny in a certain vessel, it will be competent for him to show, if it will avail him, that the vessel belonged to him, or that he was the master of it at the time, had the possession, and was entrusted with the property, and so, that he could not have committed the offence.

Such rules of practice should be adopted, as are most favorable to public justice; by which I mean, those which, while they are best calculated to protect the innocent when unjustly accused, will not serve to facilitate the escape of the guilty

The counsel for the defendant have relied upon the authority of Mr. Davis, the Solicitor General, who says, in a note on the 444th page of his · Practical Treatise upon the Duty of Justices of the Peace,' that if there are more than one owner of the vessel, the names of all of them must be inserted in the complaint.' For this dictum, he cites no authority, nor has any been produced in the argument. But the well known learning and accuracy of that gentleman has led me to search for precedents in this matter. And it is somewhat remarkable, that neither in the Crown Circuit Companion, nor in the Crown Circuit Assistant, nor in the voluminous work of Mr.

Chitty on Criminal Law, nor in Starkie's Pleading in Criminal • Cases, is to be found any authority or precedent, which is in

point. But in Archbold's 'Summary of the Law relative to Pleading and Evidence in Criminal Cases,' a work of equal learning and diligence, there is the form of an indictment upon the act

of 24 Geo. II. c. 45, which makes it felony, punishable with death, “to steal in any ship, barge, lighter, or other vessel or craft, in any port or navigable river, or in any creek belonging thereto. After the usual caption, the indictment describes the offence as follows: Twenty pounds weight of indigo, of the value of fifty shillings, of the goods and chattels, wares and merchandise of J. N. then and there being in a certain ship called the Rattler, upon the navigable river Thames, and then and there found, then and there in the said ship feloniously did steal, take, and carry away, against the peace of our said lord the king, his crown, and dignity.'

In the reports of decisions upon this statute, descriptions are given of the crime, without alleging the names of the owners of the vessels, in which it was comınitted. The case of the King v. Moses Pike, 1 Leach C. in C. L. 357, is for stealing a quantity of deals, in a certain barge on the navigable river Thames.' The case of the King v. John Leigh, on the 63d page of the same book, is for stealing sundry articles of wearing apparel and certain money, the property of John Lockhart, • being in a certain ship called the Devonshire, lying on the river Thames. The case of Rex v. Cornelius Van Mayer, in Russell and Ryan's Reports, page 118, is upon an indictment for stealing linen, geneva, and other articles, in a vessel called the Paulina Maria, in the port of Weymouth, a port of entry and discharge, contrary to the statute.' And the case of Rex v. Edward Madox, on the 92d page of the same book, is an indictment for a capital offence, founded on this statute of 24 Geo. II. c. 45, and was tried in the year 1805. The first count was for stealing at West Cowes six wooden casks and one thousand pounds weight of butter, value £20, the goods of Richard Bradley and Thomas Clayton, being in a certain vessel called a sloop, in the port of Cowes, the said port being a port of entry and discharge, against the statute.'

I am satisfied, from these authorities, and from the reason of the law, that the name of the owner of the vessel need not be alleged.

The motion in arrest of judgment was overruled, and the prisoner was sentenced according to law.


This digest comprehends the principal cases in

PETERS'S REPORTS of Decisions of the Supreme Court of the United States. Vols. III. and IV.(a)

M-CORD'S REPORTS of Decisions in the Supreme Court of South Carolina. Vol. IV.

RAWLE'S REPORTS of Cases adjudged in the Supreme Court of Pennsylvania, Vol. I.

ACTION. 1. The plaintiff being the defendants' supercargo, sold their goods

on credit at a foreign port, and procured from a house at that port advances, on an assignment of the debts due from the purchasers of the cargo.

These advances he remitted to his shippers in a return cargo. In his account of sales of the outward cargo rendered to one of the shippers, he did not mention the names of the purchasers, but concluded it with errors, omissions, and outstanding debts excepted. In that rendered to the other shipper he mentioned the names of the purchasers, and concluded the account with errors and omissions excepted.' The purchasers having become insolvent, the foreign house which had made the advances, attached the plaintiff's property and recovered the amount of their advances, and the plaintiff brought suit against the consignors for reimbursement. Held, that he was entitled to recover. Elliott v. Walker, 1 Rawle,

126. 2. If a person intermeddle with the goods of an intestate, or the

proceeds thereof, and act as executor de son tort, no administration being taken out, no trust can be raised in favor of the children as to such property, or the proceeds thereof, or any part of the same, so as to enable them to sue for such property, while the creditors of the estate remain unpaid. Lee v. Wright,

1 Rawle, 149. 3. The purchaser at a sheriff's sale, of a ground rent, may main

tain an action of covenant for the rent, against the owner of the ground out of which it issues. Streaper v. Fisher, 1 Rawle,

155. 4. The pendency of an ejectment for a lot of ground out of which

(a) We regret to find that Mr. Peters's abstracts, in these volumes, are of the same character with those of the two preceding.


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a rent charge issues, brought by the executors of a testator, will not prevent a recovery in an action of covenant for the

rent, by his devisees. 16. SEE ASSIGNMENT, 2 ; ARBITRATION; HUSBAND AND WIFE; SuACTION ON THE CASE. In general an action on the case will lie against any ministerial

officer for a neglect of duty, by which another is injured. So

merall v. Gibbes, 4 M‘Cord, 547. ADMINISTRATION ACCOUNT. 1. The confirmation of an administration account, like any other

decree of the Orphans' Court, cannot be re-examined but by way of review. M'Lenichan and Wife v. The Commonwealth,

1 Rawle, 357. 2. But the parties may so modify the balance, as to render it ne

cessary to unravel the account, to give effect to their agree

ment. 16. 3. A release by the persons beneficially interested, to one admin

istrator, of every thing but certain parts of the estate in the hands of the other administrator, which are specially excepted, is valid, and is to be carried into effect according to the intention of the parties; and it is competent to the parties interested, to give extrinsic evidence in relation to the parts excepted, notwithstanding the confirmation of the administration

account. Ib. ADMINISTRATOR. See Action, 4, 5; ADMINISTRATION

ACCOUNT, 3; HUSBAND AND WIFE, 8. ADMIRALTY. In admiralty cases the expenses and costs are not positively lim

ited by law, but are allowed at the discretion of the court. Canter v. American & Ocean Ins. Co. 3 Pet. 307.

In this case counsel fees were allowed as expenses. 2. In admiralty cases, any decision is not final in the court below,

while an appeal is pending. The United States v. Preston, 3

Pet. 65. AGENT. See PRINCIPAL AND AGENT. ALIENAGE. 1. Persons born here before the declaration of our independence,

who left the country before that event, and never returned, are aliens. Inglis v. The Trustees of the Sailor's Snug Harbor,

3 Pet. 126. 2. The courts of justice in England and in this country have es

tablished different rules as to the time at which the American antenati ceased to be British subjects. In England they have adopted the date of the treaty of peace in 1783. Here, the date of the declaration of our independence. Ib.

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