Barns or stacks

of corn.

indictment, 25 Hen. 8. c. 3. s. 2.) for wilful burning of dwelling houses, or barns wherein corn shall be, shall be admitted to the benefit of clergy; such as be within the holy orders of sub-deacon, or above, except., s. 3.

And by 4 & 5 Phil. & Mar. c. 4, Every person who shall maliciously command, hire, or counsel any person, wilfully to burn any dwelling house, or any part thereof, or any barn then having corn or grain therein, and being outlawed, or found guilty, or otherwise attainted, or being arraigned, shall stand mute, or peremptorily challenge above twenty, or will not answer to such offence, shall not have the benefit of clergy.

- But accessaries after shall have their clergy. 1 Hale's Hist. 573.

Afterwards, to repress the daring outrages that formerly pre vailed upon the northern borders of the kingdom, it is amongst other things enacted, by 43 Eliz. c. 13. s. 2, That whoever shall wilfully and of malice burn or cause to be burned, or aid, procure, or consent to the burning of any barn, or stack of corn or grain, within Cumberland, Northumberland, Westmoreland, or Durham, shall on conviction at the assizes, or general session of the peace, suffer the pains of death without benefit of clergy.

But these wicked courses growing into frequent and secret practice in several parts of the kingdom, it is enacted by 22 & 23 Car. 2. c. 7, That if any person skall in the night-time, maliciously, unlawfully, and willingly burn, or cause to be burnt and destroyed, any ricks or stacks of corn, hay or grain barns, or other houses or buildings, or kilns, the offenders shall suffer as in cases of felony. s. 2.

But no attainder by virtue of this act, shall work corrup tion of blood, loss of dower, or disinheritance of heirs. s. 3. And in case any person attainted by virtue of this act (to avoid judgment of death, or execution thereupon), shall make his election to be transported to any of his majesty's plantations, the justices of assize, oyer and terminer, gaol delivery, or justices of peace, before whom such offender shall be convict, shall cause judgment to be entered, that he be transported to some of his majesty's plantations, to be particularly mentioned, there to remain for seven years, and the sherift shall cause the offender to be embarked to be transported; and if such offender return into this kingdom before the expiration of the seven years, he shall suffer death as a felon, and as if no such election to be transported had been made by him.

s. 4.

Upon complaint of the party, three justices of the peace (1 Qu.) may enquire, as well by the oaths of twelve men, as by examination of witnesses, and issue out warrants, as well for

the summoning of jurors, as for the apprehending of persons suspected; and to take their examination; as also to cause other persons to appear and give information upon oath, concerning the premises, so as no person be proceeded against for any offence, concerning which he shall be examined as a witness, and shall make a true discovery thereof: and in case any person shall refuse to be examined, being duly summoned, it shall be lawful for the justices to commit the party so refusing to the common gaol, until he shall submit to be examined upon oath.

1.6.

But no person punished by this act, shall be punished by any other law; nor shall he be questioned, unless proceeded against within six months after the offence.

s. 7.

But this statute having made the crimes therein mentioned, only single felonies, and some doubt remaining whether the crime of arson was not intitled to the benefit of clergy, it was thought expedient to extend the provisions of the stat. 22 & 23 Car. 2.

c. 7.

And by the Black Act, 9 Geo. 1. c. 22, made perpetual by 31 Geo. 2. c. 42. (which see at large under [Black Act] infra,) it is accordingly enacted, that if any person shall set fire to any house, barn, or outhouse, or to any hovel, cock, mow, or stack of corn, straw, hay, or wood; or shall forcibly rescue any per. Son being in lawful custody for the same; or shall by gift, promise of money, or other reward, procure another to join him in any such unlawful act, every person so offending shall suffer death without clergy.

But it has been resolved, that this statute only excludes the principal offender from his clergy, more clearly than he was ex. cluded before; and does not alter the nature of the crime, or create any new offence. 1 Hawk. c. 40. s. 2. Leach's Cr. L. 218.

That act being merely intended to clear the doubt which had arisen, as to the exclusion of the principal offender from the benefit of clergy. Leach's Cr. L. 220.

The person injured by this offence, may sue the hundred to the amount of 2004, and a reward of 50%. is allowed for appre hending the offender.- See [Black Act], infra.

The words wilfully and maliciously, are not inserted in the above clause of the black act, and it hath therefore been adjudged, that they need not be laid in a declaration against the hundred; for a declaration may follow the statute, however im perfectly expressed; but the court thought it probable, that an indictment for the felony itself must charge the offence to have been done wilfully and maliciously, for otherwise it is no crime. Black. Rep. 843.

And a prison, the entrance to which is through a dwelling house, is fully within this act. Black. Rep. 682.

In a commitment on this act, it is also necessary to pursue the

·

Burning mills.

Burning any of his majesty's ships, or dock Jurds,

Seamenburning ships.

Burning the works of the

London docks,

or West India docks.

very words thereof, that it may appear that the offender has committed a felony within the meaning of the statute; for al. though it be not necessary to state in a warrant of commitment for felony, that the act was done feloniously; yet, unless it sufficiently appear to the court that a felony has been committed, they are bound by the habeas corpus act to bail the defendant; therefore on a commitment, for wilfully and maliciously setting fire to a parcel of unthrashed wheat, the court were of opinion, that as the statute had only made it felony to set fire to a cock, mow, or stack of corn, the warrant of commitment did not charge the defendant with a felony, and they therefore admitted him to bail, himself in 1000l. and four sureties in 500l. each. The K. v. Judd, Hil. 28 Geo. 3. 2 Term Rep. 255.

By 9 Geo. 3. c. 29, If any person shall wilfully or malici ously burn or set fire to any wind saw-mill, or other wind-mill, or any water-mill, or other mill, such person (if prosecuted within eighteen months), shall be guilty of felony without be nefit of clergy. s. 2.

By 12 Geo. 3. c. 24. If any person shall, either within this realm, or in any of the islands, countries, forts, or places thereunto belonging, wilfully and maliciously set on fire, or burn, or otherwise destroy, or aid, procure, abet, or assist in the setting on fire, or burning, or otherwise destroying of any of his majes ty's ships or vessels of war, whether on float or building, or begun to be built, in any of his dock yards, or building or repairing by contract in any private yards, for the use of his majesty, or any of his majesty's arsenals, magazines, dock-yards, ropeyards, victualling-offices, or any of the buildings erected therein or belonging thereto; or any timber or materials there placed, for building, repairing, or fitting out of ships or vessels; or any of his majesty's military, naval, or victualling stores, or other ammunition of war, or any place where such stores, or other ammunition of war shall be kept or deposited; such person shall be adjudged guilty of felony without benefit of clergy. s.1.

And any person who shall commit any of the offences out of this realm, may be indicted and tried for the same, either in any county within this realm, or in such island, country, or place, where such offence shall have been actually committed.

S. 2.

And by 33 Geo. 3. c. 67, If any seaman, keelman, caster, ship-carpenter, or other person, shall burn or set fire to any ship, keel, or vessel, he shall be guilty of felony without benefit of clergy.

s. 4.

If any person shall wilfully and maliciously set on fire any of the works made by virtue of this act, (relating to the London Docks), or the act (relating to the West India Docks), or any of the materials intended for any of the said works, or any ship, or other vessel lying in the docks, cuts, or basons, or any of them, such person shall be guilty of felony, without benefit of

clergy. 39 & 40 Geo. 3. c. xlvii. (as to the London Docks) 6. 95, and 39 Geo. 3. c. Ixix. (as to the West India Docks)

s. 101.

See also (Woods) supra, and (Black Act 18).

BAIL.]-By 21 Jac. 1. c. 26, All persons which shall acknowledge, or procure to be acknowledged, any fine, recovery, deed inrolled, statute, recognizance, bail, or judgment, in the name of other persons not privy or consenting, shall be adjudged felons without benefit of clergy. Provided that such attainder shall not be any corruption of blood or loss of dower, but the next heir shall have the lands, &c. S. 2.

This act shall not extend to any judgment acknowledged by any attorney of record. s. 3.

In the construction of this statute, it has been holden, that if a man personate another, in the county of 4, in putting in bail before a judge, and the bail be filed in the county of B, the trial shall be in the county of A. 1 Hawk. c. 45.

$. 10.

Also it seems, that a bail taken before a judge is not a bail within this statute, till it be filed of record; and if it be not filed, the acknowledging thereof in another's name, makes not felony, but a misdemeanor only. 1 Hale's Hist. 696.

But if such personification of bail is before commissioners in the county; it is felony, but within clergy, by 4 & 5 Will. & Mar. c. 4.

And the party personated must be in existence, and not fictitious; for where two people put in bail in feigned names in the Common Pleas, and there were no su such persons, they could not be prosecuted for personating bail on this statute: but the court ordered them and the attorney to be set in the pillory, which was done accordingly. 1 Strange, 384.

BANK OF ENGLAND.] See Felonies (within clergy), and Forgeries, infra.

BANKRUPT.]-Bankrupts not surrendering, or not submit. ting to be examined, or concealing or embezzling their estates, 5 Geo. 2. c. 30. s. 1. See general title BANKRUPT.

BANKS OF THE SEA OR RIVERS, DESTROYING OF.]-By 6 Geo. 2. c. 37. s. 5, made perpetual by 31 Geo. 2. c. 42. s. 3, If any person shall unlawfully and maliciously, break down or cut the bank of any river, or any sea-bank, whereby lands shall be overflowed or damaged; every person so offending shall be guilty of felony without benefit of clergy.

* See p. $79, supra.

And by 10 Geo. 2. c. 32. s. 4, all the provisions of the Black Act, 9 Geo. 1. c. 22; for the bringing offenders, their aiders and abettors to justice; for making compensation to the party injured; for the reward for apprehending offenders, and for the more impartial punishment of the offences therein men. tioned; together with all restrictions, limitations, and mitiga. tions of the said act, shall extend to all cases of offences by breaking down, or cutting down any bank of any river, &c. un. der the above act, 6 Geo. 2. c. 37.-See therefore (Black Act), infra.

BASTARDS.]-See general title HOMICIDE.

BEDFORD LEVEL.] By 27 Geo. 2. c. 19, Whoever shall maliciously cut, break down, burn, demolish, or destroy any bank, mill, engine, flood-gate, or sluice for draining Bedford Level, shall be guilty of felony without benefit of clergy; and if any person shall stop, dam up, demolish, damage, or destroy any river, drain, watercourse, door, dam, bridge, or other works, erected, or to be erected for the purposes afore said, such person being thereof convicted before two justices, for the counties and isle, or either of them, on the oath of two witnesses, shall forfeit 100l. to the commissioners, to be applied as the rates on the lands are; and in default of payment, the offender shall be sent to the house of correction, there to be kept to hard labour for not exceeding six months. S. 49.

By 1 Hen. 7. c. 7, At such time as information shall be made of unlawful huntings by night, or with painted faces, to any of the king's council, or justices of peace, of any person suspected thereof, it shall be lawful for any of the said council or justices of peace, to make a warrant to the sheriff or to any constable or other officer, to take the persons and have them afore the makers of such warrant, or any other the king's council, or justice of peace of the county, and the counsellor or justice shall have power to examine them; and if the person wilfully conceal the huntings, or any per son with him defective therein, the concealment shall be against every such person felony; and if he then confess the truth, and all that he knoweth in that behalf, the offences of hunting shall be but trespass, bailable at the next ge neral sessions of the peace. And if any rescous or disobey. ance be made to any person having authority by any such warrant, by any person which should be arrested, so that the execution of the warrant be not had, the rescous and disobeyance shall be felony. And if any persons be convicted of any such huntings with painted faces, visors, or otherwise disguised, to the intent they should not be known, or of un