Page images

pay or cause to be paid unto John Tapper, the informer in that R. v. Helps. behalf, 61. 6s., for the costs and charges by him incurred in defending the said appeal, which said penalty of 30l. the said B. Helps Costs to be doth neglect and refuse to pay, or cause to be paid, and also doth paid to in

, neglect and refuse to pay the said sum of 61. 6s., thereby disobeying the order of the said court: These are, therefore, in H. M.'s name, to command you, the said constable, to take, &c. and you the said governor to receive the body of the said B. Helps into your custody, and him safely keep without bail or mainprize for six calendar months, or until the said penalty of 301. shall be paid, &c. Dated the 4th of Nov. 1814, under the hands and seals of the said justices." — Exception was taken to this commitment, that as the statute directs the penalty to be paid, one moiety to the informer, and the other moiety to the poor of the parish where the offence shall be committed, it should have been shown by the conviction who is the informer; and then the adjudication that the penalty should be applied as the law directs would, according to Regina v. Barlett, Salk. 383., have been well enough. But Ř. v. Seale, 8 East, 568., has decided, that if the person to whom any proportion of the penalty is given be not ascertained in the conviction, it is ill. Also the justices should have adjudged in the conviction, that if the penalty were not forth with paid, the offender should be committed, &c., for so the statute directs: and it was said by the Court in R. v. Dimpsey, 2 T. R. 96., that a judgment is an entire thing, and one part of it cannot be given at one time, and another at a subsequent time; but here the justices have waited to make one part of their adjudication until after the appeal. — In support of the commitment it was contended, that the defect, if it were one of not naming the informer in the conviction, was cured by a subsequent part of this commitment, which points out who the informer is ; for it directs the defendant to pay six guineas to the informer. Therefore, taking the whole commitment together, both the informer and the parish to whom the penalty is given are ascertained, and if so, the justices adjudging the penalty to be applied as the law directs is ex concessis sufficient. And the answer to the other objection is, that the defendant is not committed upon the original conviction until after the appeal, and must have been summoned again. - It was urged in reply, that to warrant a commitment there must be a lawful conviction, for though the statute as to the conviction takes away a certiorari, yet the commitment must contain lawful cause. And in Dr. Groenvelt's case, 1 Ld. Raym. 213., it was resolved, “ that the cause of commitment ought to be certain, to the end that the party may know for what he suffers, and how he may regain his liberty." But, if the conviction do not point out the informer, how can the party know to whom he is to pay the penalty and regain his liberty? And the conviction cannot be helped by matter dehors; so that the informer being named in a subsequent part of this commitment will not remedy it. - Ld. Ellenborough C. J. said, If the conviction formed a stage of this proceeding at which we were to stop, in order to look into its sufficiency or insufficiency, I should probably be of opinion that it ought to point out the informer. But we cannot consider the case upon the conviction; the statute has taken away the certiorari; we cannot intend that the original did not contain something more ; we can only look to this ultimate proceeding. Looking, then, at

that alone which is before us, we find, when we come to the affirm ance of the conviction upon appeal, that it does appear with suffi cient certainty who the informer is. By the ultimate adjudication both the parish and the name of the informer are supplied. Le Blanc J. said, I think the offender has notice, upon the whole commitment, who is the informer and which is the parish to whom the penalty is to be paid. Bayley J. said, This is not a commitment which in itself comprises the conviction of the offender, but the commitment recites some other conviction. And in that recital it is not necessary that every thing should be stated which is requisite in the conviction itself; therefore, when the recital states that he was convicted in a penalty, to be applied in such manner as the law directs, that is perfectly consistent with its being more particularly specified in the conviction itself to whom the penalty is to be distributed. Prisoner remanded.



on the

[ocr errors]

A. Indictment for keeping a Mastiff unmuzzled.
County of THE jurors for our lord the king upon their oath

present, that A. O., late of the parish of
to wit. S the said county,

day of in the

year of the reign of our sovereign lord William the fourth, of the united kingdom of Great Britain and Ireland king, defender of the faith, and on divers other days and times between that day and the day of the taking of this inquisition, at the parish aforesaid, in the county aforesaid, near unto the king's common highway, there unlawfully did keep and still doth keep, a certain large dog of a fierce and furious nature ; and the said dog, on the said day of

in the year aforesaid, and on the said other days and times, at the parish aforesaid, in the county aforesaid, near unto the said highway there unlawfully did permit and suffer and still doth permit and suffer to go unmuzzled and at large, by reason whereof the liege subjects of our said lord the king, on the said day of

in the year aforesaid, and on the said other days and t'imes, at the parish aforesaid, in the county aforesaid, could not nor can they now go, return, pass, and labour in and through the said highway there, without great danger and hazard of being bit, maimed, and torn by the said dog, and losing their lives, to the great damage, terror, and common nuisance of all the liege subjects of our said lord the king, in, by, and through the said highway there going, returning, passing, repassing, and labouring, to the evil example of all others in the like case offending, and against the peace of the said lord the king, his crown and dignity.

Sir John Fielding, in his Observations on the Penal Laws, p. 291.
" recommends it to all persons to put brass or steel collars on
their dogs' necks, with the name and place of abode of their
owners, and to fasten them with a padlock; for the stealing such
collars being felony, it will facilitate the punishing of the offender;
and the dog when found is recoverable by action.”
Door, breaking open. See Arrest, antè.

Dower. See Forfeiture.
Duelling. See homicide.

Egyptians. [22 H. 8. c. 10.-1 G. 4. c. 116. — 5 G. 4. c. 83.] THESE are a strange kind of commonwealth among themselves, Gypsies.

of wandering impostors and jugglers, who made their first appearance in Germany about the beginning of the sixteenth century, and have since spread themselves all over Europe and Asia. They were originally called Zinganees by the Turks, from their captain, Zinganeus, who, when Sultan Selim conquered Egypt, about the year 1517, refused to submit to the Turkish yoke, and retired into the deserts, where they lived by rapine and plunder, and frequently came down into the plains of Egypt, committing great outrages in the towns upon the Nile, under the dominion of the Turks. But being at length subdued and banished from Egypt, they dispersed themselves in small parties into every country in the known world; and, as they were natives of Egypt, a country where the occult sciences, or black art, as it was called, was supposed to have arrived to great perfection, and which, in that credulous age, was in great vogue with persons of all religions and persuasions, they found the people, wherever they came, very easily imposed on. Mod. Univ. Hist. vol. xliii. p. 271.

In the compass of a very few years, they gained such a number of idle proselytes, who imitated their language and complexion, and betook themselves to the same arts of chiromancy, begging, and pilfering, that they became troublesome, and even formidable, to most of the states of Europe. Hence they were expelled from France in the year 1560, and from Spain in 1591. And the government in England took the alarm much earlier ; for in 1530, they are described by the statute of the 22 H. 8. c. 10. Description of, as “outlandish people, calling themselves Egyptians, using no by 22 N. 8. craft or feat of merchandise, who have come into this realm, and c. 10. gone from shire to shire, and place to place, in great company, and used great subtle and crafty means to deceive the people; bearing them in hand, that they by palmistry could tell men and women fortunes; and so, many times by craft and subtlety have deceived the people of their money, and also have committed many heinous felonies and robberies.” Wherefore they are directed to avoid the realm, and not to return, under pain of imprisonment, and forfeiture of their goods and chattels : and, upon their trials for any felony which they may have committed, they shall not be entitled to a jury de medietate lingua. And afterwards it is enacted by stat. 1 & 2 P. & M. 1 & 2 P. & M. c.4., and 5 El. c. 20., that if any such persons shall soft

5 Eliz. c. 20. be imported into this kingdom, the importer shall forfeit 401. And if the Egyptians themselves remain one month in this kingdom; or if any person being fourteen years old, whether a natural-born subject or stranger, which hath been seen or found in the fellowship of such Egyptians, or which hath disguised him or herself like them, shall

remain in the same one month at one or several times, it is felony without benefit of clergy. And Sir Matthew Hale informs us, that at one Suffolk assizes no less than thirteen gypsies were executed upon these statutes, a few years before the Restoration. But, to the honour of our national humanity, there are no instances more modern than this, of carrying these laws into


5 Eliz. c. 20. execution. (4 Blac. Com. 166.) And by stat. 23 G. 3. c. 51. the repealed by said stat. 5 El. c. 20. is repealed. And now by stat. 1 G. 4. c. 116., 23 G. 3. c. 51.

after reciting that whereas by stat. 1 & 2 P. & M. c. 4. suprà, it is 1 G. 4. c. 116., amongst other things enacted, that if any of the persons called repealing so

Egyptians which shall be transported and conveyed into this realm much of 1 & 2 P. & M. c. 4.

of England or Wales, do continue and remain within the same by as inflicts ca


of one month, that then he or they so offending shall, by pital punish- virtue of this act, be deemed and judged a felon and felons, and

shall therefore suffer pains of death, loss of lands and goods, as in cases of felony, by the order of the common law of this realm, and shall, upon the trial of them or any of them therein, so tried in the county, and by the inhabitants of the county or place where they or he shall be apprehended or taken, and not per medietatem lingua, and shall lose the benefit and privilege of sanctuary and clergy, enacts that so much of the said act as is herein-before recited shall

be, and the same is hereby repealed. Persons telling By 5 G. 4. c. 83. § 4., all persons pretending to tell fortunes, or fortunes and using any subtle craft, means, or device by palmistry or otherwise, wandering to deceive and impose on any of his majesty's subjects; and perabroad, rogues sons wandering abroad and lodging in any barn or outhouse, or in and vagabonds.

any deserted or unoccupied building, or in the open air, or under
a tent, or in any cart or waggon, not having visible means of sub-
sistence, and not giving a good account of themselves, shall be
deemed rogues and vagabonds.

Embezzlement. See Larceny.
Embracery. See paintenance.

Escape, what.

Several kinds thereof.


See tit. Rescue.
THIS is to be understood of escapes in criminal cases; and not

in civil cases, as for debt, or the like.
An escape is, where one that is arrested gaineth his liberty
before he is delivered by the course of law. Terms of the L.

Escapes are of three kinds. 1. By a person who hath the offender in his custody, by permission or negligence. 2. Caused by a stranger; this is commonly called, if effected by force, a

3. By the party himself; either without force, which is simply an escape, or with force, which is prison breaking. Rescous and prison breaking are treated of under their respective titles: and this title treats only of escapes properly so called. Concerning which we will treat in the following order:


I. Of Escape by the Party himself.
[13 G. 3. c. 31.—44 G. 3. c. 92.-45 G. 3. c. 92.—54 G. 3.

c. 186.]
II. Escape suffered by a Private Person.
III. Escape suffered by an Officer.
IV. What is a voluntary, and what a negligent Escape.
V. Concerning the retaking of a Person escaped.

VI. Indictment for an Escape.
VII. Trial and Conviction for an Escape.

[G. 4. c. 64.]
VIII. Pumishment of an Escape.

[37 G. 3. c. 140.—52 G. 3. c. 156.] IX. diding in attempting to escape.

(16 G. 2. c.31.–4 G. 4. c. 64.—5 G. 4. c. 84.]

I. Df Escape bp the party himself. As all persons are bound to submit themselves to the judgment Escape by party of the law, and to be ready to be justified by it, whoever in any himself

, though case refuses to undergo that imprisonment which the law thinks fit

without force,

a misdemeanor. to put upon him, and frees himself from it by any artifice before such time as he is delivered by due course of law, is guilty of an high contempt, punishable with fine and imprisonment. 2 Haw. 6. 17. § 5. 4 Blac. Com. 129.

But escape, committed by the party himself, if effected by force, belongs more properly to the title Prison Breaking.

By stat. 44 G. 3. c. 92. $ 3., offenders against whom any war- 44 G. 3. c. 92. rant shall be issued, escaping from Ireland into England or Scot


escapland, may be apprehended by an indorsed warrant, and conveyed ing from G. B. to Ireland; and the fourth section of the act makes the same from Ireland to provision as to offenders escaping from England or Scotland into G. B. to be apIreland, being apprehended and conveyed back again to England prehended and or Scotland.

brought back The apprehension of persons escaping from England into Scot- again. lard, and from Scotland into England, is provided for by stat. So, as to Scot15 G. 3. c. 31. And as to admitting, persons apprehended in England, Scotland, and Ireland, to bail, for bailable offences, see statutes 45 G. 3. c. 92., and 54 G. 3. c. 186., which latter stat., § 2., 54 G. 3. c.186. ebacts that all warrants issued in England, Scotland, or Ireland, respectively, may and shall be indorsed and executed, and enforced and acted upon, in any part of the U. K., in like manner as is directed by stat. 13 G. 3. c. 31. in relation to warrants issued or granted in England and Scotland respectively, as fully as if all the provisions of the said act were made part of this act, as to every part of the U. K., and as to all justices of the peace, sheriff's officers, constables or other officer or officers of the peace in Ireland, as well as in England and Scotland respectively. See also title Warrant.

II, Escape suffered by a private Person. It seems to be a good general rule, that wherever any person Escape by a bath another lawfully in his custody, whether upon an arrest private person. made by himself or another, he is guilty of an escape, if he suffer him to go at large before he hath discharged himself of him, by delivering him over to some other who by law ought to have the custody of him. 2 Haw. c. 20. s 1. 1 Russ. 377.

And the law is generally the same, in relation to escapes suf- . fered by private persons, as by officers. Id.

« PreviousContinue »