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But an action cannot be brought by the person acquitted of Granting copy felony against the prosecutor of the indictment, without obtaining of indictment a copy of the record of his indictment and acquittal; which in

in felony. prosecutions for felony it is not usual to grant, if there is any the least probable cause to found such prosecution upon. For it would be a very great discouragement to the public justice of the kingdom, if prosecutors for felonies, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried. — But an action on the case for a malicious prosecution may be founded on such an indictment whereon no acquittal can be, as, if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn for it is not the danger of the plaintiff, but the scandal, vexation, and expense, upon which this action is founded. However, any probable cause for prefer. ring it is sufficient to justify the defendant, provided it doth not appear that the prosecution was malicious.' 3 Blac. Com. 126. Burr. 1971.

If, however, a copy of the indictment be procured, even with. Copy of indictout an order of the court, it will be admissible in evidence. ment is evi

dence however Leggatt v. Tollervey, 14 East, 302. cit. 1 Phill. Evid. 423. See

obtained. also Caddy v. Barlow, 1 Man. & Ryl. 279. n. and (a), ib., and Browne v. Cumming and others, 10 B. & C. 70.

But in cases of misdemeanor, the defendant is entitled to a copy In misdeof the indictment as a matter of right. 1 Phill. 423.

meanor it is Morrison v. Kelly, 1 Blac. Rep. 385. At the sittings in Mid- matter of right. dleset, an action came on to be tried for a malicious prosecution In misdein indicting the plaintiff for keeping a disorderly house. To prove the fact, the clerk of the peace for the Westminster sessions attended, with the original record of the acquittal. It was objected, that there ought to be a copy of the record granted by the court before which the acquittal is had, in order to ground an action for a malicious prosecution. But it was ruled by Ld. Mansfield C. J., that though this is necessary where the party is indicted for felony, yet the practice is otherwise in case of misdemeanors.

Rex v. the Inhabs. of Burbon, M. 57 G. 3. 5 M. & S. 392. Right not Indictment for non-repair of a highway. Plea, not guilty. Upon bound on verthe trial before Wood B. at the Westmorland Sum. Ass. 1816,

dict of acquittal

on road indictthere was a verdict of not guilty. And now, Scarlett moved for

ment. a new trial, upon the ground that the verdict was against all the evidence; and he said, that the prosecution was for the purpose of trying a civil right only. — But, per Lord Ellenborough C.J. In general, the rule is not to grant a new trial in a criminal proceeding, after a verdict of not guilty. And, inasmuch as the right will not be bound on the plea of not guilty, we do not think it would be proper to break into the general rule on the suggestion that the prosecution was merely intended to determine a civil right. R.R.

meanor.

XIII. Jndictments in Counties of Cities and Towns

Corporate. By stat. 38 G. 3. c. 52. § 1., reciting, whereas there at present 98 G. 3. c. 52. exists in the counties of cities and of towns corporate within this kingdom an exclusive right that all causes and offences which arise within their particular limits should be tried by a jury of persons

98 G. 3. c. 52. residing within the limits of the county of such city or town cor

porate; which ancient privilege, intended for other and good purposes, has in many instances been found by experience not to conduce to the ends of justice: And whereas it will tend to the more effectual administration of justice in certain cases, if actions, indictments, and other proceedings, the causes of which arise within the counties of cities and towns corporate, were tried in the next adjoining counties, enacts, that from and after the 1st of June 1798, in every action, whether transitory or local, which shall be

prosecuted or depending in any of H. M.'s courts of record at In what case Westminster; and in every indictment removed into the K. B. by the court may certiorari ; and in every information filed by H. M.'s attorney direct an issue to be tried by a

or solicitor general, or by the leave of the court of K. B.; and jury of the

in all cases where any person or persons shall plead to or traverse county next ad. any of the facts contained in the return to any writ of mandamus, joining to the if the venue in such action, indictment, or information be laid city or town in the county of any city or town corporate within that part of corporate in

G. B. called England, or if such writ of mandamus be directed to which the venue is laid. any person or persons, body politic and corporate, that it shall be

lawful for the court in which such action, &c. or other proceeding shall be depending, at the instance of the prosecutor or plaintiff, or of any defendant, to direct the issue or issues joined in such action, &c. to be tried by a jury of the county next adjoining to the county of such city or town corporate; and to award proper writs of venire and distringas accordingly, if the said court shall

think it fit so to do. Indictments

§ 2. Indictments for offences committed within the county of may be preferred to county

any city or town corporate, may be preferred to the jury of the next adjoining county next adjoining. Indictment

3. Indictments found by the grand jury, or inquisitions taken found in county

before the coroner of the county of a city or town corporate, may of city or town be ordered by the court to be filed with the proper officer of the . corporate may next adjoining county, and defendants may be removed to the be transferred

gaol thereof. to county next adjoining.

By stat. 51 G. 3. c. 100., after reciting the provisions of the

preceding act, it is enacted, that from and after the passing 51. G. 3. c. 100. of this act, it shall and may be lawful for the court before In cases of conviction under which any conviction shall have taken place in pursuance of recited act, the the provisions of the said recited act, to order every such sentence may convict to be punished according to law, either within the be executed in county where such conviction shall have taken place, or within the county of the city or town

the county of the city or town corporate wherein such offence corporate, as

shall have been committed ; and in cases where the court shall well as in ad- order such convict to be punished within the county of such joining county. city or town corporate, it shall be lawful for the court, after

passing sentence upon every such convict, to order him to be delivered into the custody of the sheriff, gaoler, or other proper officer of the county of such city or town corporate; and the sheriff, gaoler, or other proper officer of the county of such city or town corporate is commanded to receive into his custody every such convict, and to execute the sentence so passed upon him in such adjoining county, as if he had been tried and had received such sentence in the county of such city or town corporate.

$ 2. And whereas it is provided by the said in part recited act, ($ 8.) that in all cases of indictments and other proceedings which

may be tried before H. M.'s justices of oyer and terminer or ge- 51 G. 3. c. 100. neral gaol delivery, for any county, in pursuance of the provisions contained in the said act, it should and might be lawful for such justices to order the expenses of the prosecution, and of the witnesses, and of the several rewards payable in pursuance of the statutes in such cases made and provided on the conviction of offenders, to be paid by and to the same persons and in the same manner as the same would have been payable if such indictment had been tried in the court of oyer and terminer or general gaol delivery of the county of such city or town corporate: And Providing for wbereas it is just and expedient that a similar provision should be payment of er. made for the payment of all other expenses which may be incurred penses not beby any such adjoining county in relation to any person who may for by the be tried or removed for trial to such adjoining county, for any county of a city offence committed or charged to have been committed in the or town corcounty of any such city or town corporate; the justices of oyer porate. and terminer or general gaol delivery, at any sessions thereof holden for such county, shall order all expenses whatsoever incurred by such county in relation to any person who shall be tried in such county or removed thither for trial, for any offence committed or charged to have been committed within the county of any such city or town corporate, as well in maintaining and supporting such person and carrying the sentence into execution as in any other respect, to be repaid to the treasurer of such county, or other person acting as treasurer of such county, or who shall have actually paid such expenses, by the same person and in the same manner as the same would have been payable, if such offender or supposed offender had remained in the county of such city or town corporate, and had been tried in the court of oyer and terminer or general gaol delivery of the county of such city or town corporate, and as if the sentence with respect to such offender had been carried into execution within the county of such city or town corporate.

Condition of a Recognizance to prefer a Bill of Indictment.
THE condition of this recognizance is such, That if the above

bound A. I. shall personally appear at the next general quarter sessions of the peace to be holden at in and for the said county, and then and there prefer a bill of indictment against A. O. late of

- yeoman, for the felonious taking and carrying away of the property of

and shall then and there give evidence concerning the same to the jurors who shall inquire thereof on the part of our said lord the king ; and in case the same be found a true bill, Then if the said A. I. shall personally appear before the jurors who shall pass upon the trial of the said A. o., and give evidence upon the said indictment, and not depart without leave of the court, then this recognizance to be void.

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Condition of a Recognizance to answer to an Indictment. THE condition of this recognizance is such, That if the above

bound A. O. shall personally appear at the next general quarter sessions of the peace to be holden at in and for the said county, then and there to answer to an indictment to be preferred

VOL. III.

D D

against him by A. I. of yeoman, for assaulting and beating him the said A. I., and not depart without leave of the court, Then this recognizance to be void.

Indorsing a Warrant in another County.

See Warrant.

Jnfants.

Infant, who.

Age of discretion.

How far answerable for Crimes.
BY an infant or minor is meant any one who is under the age

of twenty-one years.

1 Inst. 2. It is said generally, that those who are under a natural disability of distinguishing between good and evil, as infants under the age of fourteen years, which is called the age of discretion, are not punishable by any criminal prosecution whatsoever. But this must be understood with some allowance; for if it appear by the circumstances that an infant under the age of discretion could distinguish between good and evil, as, if one of the age of nine or ten years kill another and hide the body, or make excuses, or hide himself, he may be convicted and condemned, and forfeit as much as if he were of full age. — But in such case the judges will in prudence respite the execution, in order to get a pardon; and it is said, that if an infant apparently wanting discretion be indicted and found guilty of felony, the justices themselves may dismiss him without a pardon. And in general it must be left to the discretion of the judge, upon the circumstances of the case, how far an infant under that age is capax doli, or hath knowledge to discern betwixt good and evil. Hale's Sum. 43. 1 Haw. c. 1. $ 8. 1 Hale, 18. 1 Russ. 3.

In case of any notorious breach of the peace, as a riot, battery, or the like, an infant under the age of twenty-one is equally liable to suffer as a person of the full age of twenty-one. 1 Russ. 2. 3 Bac. Abr. 591.

So, if an infant judicially perjure himself, he shall be punished for the perjury: and he may be indicted for cheating. Ibid.

But where the offence charged is a mere non-feasance, there in some cases he shall be privileged by his non-age, if under twentyone, though above fourteen years ; because laches in such case shall not be imputed to him, unless it be of such a thing as the party be bound to by reason of tenure or the like, as to repair a bridge, &c. Ibid.

If A. kills B., and C. and D. are present, they may be fined or imprisoned if they do not attach the offender ; but if C. is under twenty-one, he shall not be fined or imprisoned. 3 Bac. Abr. 591.

The following is an important case, as to the capability of an infant of ten years old to commit the crime of murder; and as to the expediency of visiting such an offender with capital punislıment,

Infant liable. Breach of peace.

Perjury. Cheating Aliter for a mere non. feasance. Exception.

For not attach.
ing one who
has killed
anv her.

At Bury Summer Assizes, 1748, William York, a boy of ten York's case. years of age, was convicted before Ld. Ch. J. Willes, for the Case of murder murder of a girl of about five years of age; and received sentence by a boy, of ten of death. But the chief justice, out of regard to the tender years of the prisoner, respited execution till he should have an opportunity of taking the opinion of the rest of the judges, whether it were proper to execute him or not, upon the special circumstances of the case ; which he reported to the judges as follows:- The boy and girl were parish children, but under the care of a parishioner, at whose house they were lodged and maintained. On the day the murder happened, the man of the house and his wife went out to their work early in the morning and left the children in bed together. When they returned from work the girl was missing; and the boy being asked what was become of her, answered, that he had helped her up, and put on her clothes, and that she was gone he knew not whither. Upon this, strict search was made in the ditches and pools of water near the house, from an apprehension that the child might have fallen into the water. During this search, the man, under whose care the children were, observed that a heap of dung near the house had been newly turned up; and upon removing the upper part of the heap, he found the body of the child, about a foot's depth under the surface, cut and mangled in a most barbarous and horrid manner. Upon this discovery, the boy, who was the only person capable of committing the fact that was left at home with the child, was charged with the fact, which he stiffly denied. When the coroner's jury met, the boy was again charged, but persisted still to deny the fact. At length, being closely interrogated, he fell to crying, and said he would tell the whole truth. He then said, that the child had been used to foul herself in bed; that she did so that morning (which was not true, for the bed was searched and found to be clean); that thereupon he took her out of the bed and carried her to the dung-heap; and with a large knife which he found about the house, cut her in the manner the body appeared to be mangled, and buried her in the dung. heap placing the dung and straw that was bloody under the body, and covering it up with what was clean; and having done so, he got water and washed himself as clean as he could. The boy was the next morning carried before a neighbouring justice, before whom he repeated his confession, with all the circumstances he had related to the coroner and his jury. The justice very prudently deferred proceeding to a commitment, till the boy should have an opportunity of recollecting himself. Accordingly, he warned him of the danger he was in, if he should be thought guilty of the fact he stood charged with, and admonished him not to wrong himself; and then ordered him into a room where none of the crowd that attended should have access to him. When the boy had been some hours in this room, where victuals and drink were provided for him, he was brought a second time before the justice, and then he repeated his former confession ; upon which he was committed to gaol. On the trial, evidence was given of the declarations before mentioned to have been made before the coroner and his jury, and before the justice, and of many de. clarations to the same purpose, which the boy made to other people after he came to gaol, and even down to the day of his

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