to a month's wages beyond the wages gence the plaintiff's carriage sustains an due for the period of actual service. injury. An action lies against A. SamRobinson v. Hindman, 3 Esp. 235. Ken-mell v. Wright, 5 Esp. 263.

manager of a theatre as a public singer, (And see ante, Agreement, pl. 34,

B. PLEADINGS.

(a) Form of indictment.
(b) Variance.

C. EVIDENCE.

(a) Formal.

(b) Admissible.

(c) Sufficient.

D. PROCESS.

A. WHAT SHALL BE.

A. (a) Conspiracy.

was not argued.
to have been founded on Rex v. Turner,
13 East, 228, where it was held that a
conspiracy to commit a trespass on land,
for the purpose of killing game, was not
an indictable offence, the object of the
combination being the doing of an injury
merely civil. But quære, whether a con-
spiracy to commit an assault, be not
as a misdemeanor and criminal injury,
distinguishable from a conspiracy to ef-
fect a merely civil injury; and whether,
supposing the conspiracy to be bad, the
direct allegation of an actual assault
would not be sufficient to support a ver-
dict, notwithstanding the immaterial in-
ducement by which it was preceded.

The decision appears

5. Indictment for conspiracy to cheat in the sale of a horse, held not maintain

(And see ACTION ON THE CASE, pl. 58.)able without proof of concert between

the defendants to effectuate a fraud.

R. v. Pywell and others, 1 Stark. 402.
Ellenborough, C. J. 1816.

1. No indictment will lie for procuring the marriage of a female pauper, with a labouring man of another parish, who is not actually chargeable. Rex A. (b) Offences against public decency. v. Tanner et alt. 1 Esp. 304. Ashhurst, J. Hertford, 1795.

6. It is a misdemeanor for a man to 2. A conspiracy to obtain money as a expose his person on the sea-shore for reward for an appointment to an office the purpose of bathing, in a spot where in the customs, to be made by the lords he may be distinctly seen from the winof the treasury, is an indictable offence dows of newly erected houses, though at common law. Rex v. Pollman and before these houses were built, persons usually bathed there. Rex v. Crunden, 2 Campb. 89. Macdonald, C. B. Horsham, 1809.

others, 2 Campb. 229. Ellenborough, C. J. 1809.

N. Or by statute 11 H. 4.; vide 3 Inst. 146, 7. And see Rex v. Vaughan, 4 Burr. 2494.

And see Rex v. Sir Charles Sedley, 1 Keb. 620; S. C. Sid. 168. pl. 29; observed upon in Rex v. Curl, 2 Stra. 690.

A. (c) Offences against public health.

3. A banker who has permitted money to be lodged at his house for the purpose of being paid over on the procurement of an office in the customs, may be indicted for a conspiracy with the parties who undertook to procure the appoint-alum is found in large lumps, is guilty 7. A baker selling bread in which ment, and were to receive the money of a misdemeanor at common law, if he ordered alum to be used, though he gave And see 49 Geo. III. cap. 126. § 3. 4. Held, that a count charging that directions for mixing it up in a manner the defendants, conspired, &c. to assault which would render it innoxious. Rer and beat the prosecutor, and that in pur-v. Dixon, 4 Campb. 12. Ellenborough, suance of such conspiracy, &c. they did C. J. 1814.

Ibid.

assault and beat is bad. Rex v. Barton

and others. Best, J. Devon Spring As-21.

sizes, 1819.

And see 37 Geo. III. cap. 98. sect.

A. (d) Cruelty.

N. The objection was taken by the court before the opening of the case, 8. An indictment will lie for refusing and being acquiesced in by the leading to provide necessary food and clothingcounsel for the prosecution, the point for a servant of tender years, who is

under the dominion and control of the defendant. Rex v. Elizabeth Ridley, 2 Campb. 650. Lawrence, J. Salop, 1811.

A. (i) Extortion.

16. An indictment does not lie against

7. S. P. admit: per all the judges, a turnpike-keeper for extortion in taking upon a case reserved by Le Blanc, J. toll, upon the ground of an exemption from the Exeter Assizes, 1802. Ibid. not claimed when the toll was taken. 8. And it is no objection that the of-Rex v. Hamlyn, 4 Campb. 379. Ellenfence consists merely in non-feasance. borough, C. J. 1816.

Rex v. Ridley, ubi supra.

9. Or that the defendant is a married woman. Ibid.

10. The exposing of a servant to the inclemency of the weather, is an indictable misdemeanor.

A. (e) Concealing pregnancy.

B. PLEADINGS.

B. (a) Form of indictment.

17. Indictment under 17 Geo. 3. cap. 26, § 7. for taking a particular sum exceeding 10s. per cent. as brokerage on an annuity. The sum included a demand for preparing the deeds, &c. Held to be no variance. Rex v. Gilham, Esp. 285. Kenyon, C. J. 1795.

11. A woman tried on the coroner's inquest for the murder of her bastard child, may, under 43 Geo. 3. cap. 58.1 §3, 4, be found guilty of the concealRex v. Mary Cole, 3 Campb. 371. Bayley, J. Gloucester, 1813.

ment.

A. (f) Gaming.

12. Under an indictment on 9 Ann, c. 14. s. 5. for winning more than 101. to wit, the sum of £, the winning of a smaller sum may be proved. R. v. Hill Darley, and others, 1 Stark. 359. Ellenborough, C. J. 1816.

13. Aliter, if bills of exchange of a specific amount be stated. Ibid.

A. (g) Disobedience to order of justices.

And the court of K. B. discharged a rule for a new trial, on the ground that the precise quantum of excess was immaterial; 6 T. R. 265.

18. A porter, upon the delivery of a basket of fish, produces a false ticket, and receives 3s. 4d. more than he is entitled to. In an indictment upon 30 Geo. 2. cap. 24. for obtaining money by false pretences, the basket of fish may be described as a parcel. Rex v. Douglass, 1 Campb. 212. Ellenborough, Č. J. 1808.

19. But in an indictment for taking more than the rate of porterage, upon 39 Geo. 3. cap. 58. which enumerates (sect. 1.) baskets and parcels, the va14. An indictment against two mem-riance would be fatal. Ibid. bers, the stewards of a friendly society 20. An indictment upon 30 Geo. 2. enrolled in London, but removed and cap. 24. for obtaining money by false afterwards held in Middlesex, for dis- pretences, averred, that the defendant obedience to an order of two Middlesex pretended that he had paid a certain magistrates to readmit an expelled mem- sum of money into the Bank of England; ber is good under 33 Geo. 3. c. 54. s. 15. but it appeared, that he merely said, the and 49 Geo. 3, c. 125. s. 1. R. v. Gash money had been paid at the Bank. Held, and another, 1 Stark. 441. Ellenbo-that the variance was fatal. Rex v. rough, C. J. 1816. Plestow, 1 Campb. 494. Ellenborough,

And the court refused a rule to enter C. J. 1808. a verdict for the defendant. Ibid.

A. (h) False pretences.

And see Rex v. Fuller, 1 Bos. & Pul. 184, 6.

21. And where such indictment charges the defendant with obtaining the money15. It is an indictable offence to ob- of A., and it appears that the money betain goods upon a cheque which the longed to A's servant, who was afterparty knows will not be paid. Rex v.wards reimbursed by his master, the Jackson, 3 Campb. 370. Bayley, J. variance is fatal. Rex v. Douglass, Gloucester, 1813. Post, pl. 18, 20, 1,2,3. 1 Campb. 213. Ellenborough, C. J. 1808.

Р

22. Secus, where the servant has in a case reserved by Le Blanc, J. from the his hands at the time an equal or larger Exeter Assizes, 1802. And an indictsum belonging to his master. Ibid. ment against a master chimney sweeper

23. Where a servant being directed for manslaughter by nonfeasance or to purchase sheep for his master, charges omission, was held by Garrow, B. to be him more than he has paid, and subse-insufficient in not averring that the priquently receives the amount of such soner had the means of preventing the overcharge, he is guilty of obtaining death of the child. O. B. December, money under false pretences. Per Hol-1817.

royd, J. in Braddick v. Croad, Devon 28. Where an indictment sets out an Spring Assizes, 1819. order made by B. U., esquire, one of his 24. A person may be charged with majesty's justices, assigned, &c. for the several offences of the same nature in county of C., and the order appears to the same indictment. And though, in have been made by B. U., clerk, a jusfelonies, it is usual for the judge to re-tice appointed for a particular district quire the prosecutor to confine himself within the county, the variance is fatal. to one offence, this practice has never Rex v. Tanner et alt. 1 Esp. 304. Ashbeen extended to misdemeanors. Rex hurst, J. Hertford, 1795. v. Jones, 2 Canipb. 131. Ellenborough, C. J. 1808.

And see Rex v. Kingston and others, 8 East, 41.

N. From the margin of this report the variance in the addition appears to have been principally relied on.

C. EVIDENCE.

C. (a) Formal.

25. Upon an indictment against A. B. and C. for conspiracy to obtain, viz. to the use of A. and B. 20001. for procuring an official appointment, it appeared that C. did not know that A. was 29. Upon an indictment for disturbconcerned in the transaction. The va-ing a congregation of protestant dissenriance is fatal as to C. the averment re-ters, it is not necessary to prove that the specting the application of the money minister has taken the oaths prescribed being material, though laid under a vi- by the toleration act. Rex v. Hube, delicet. Rex v. Pollman and others, 2 Peake, 131. Kenyon, C. J. 1792. Camph. 229. Ellenborough, C. J. 1809.

C. (b) Admissible.

26. Where a count in an indictment undertakes to set out continuously the substance of what the defendant swore 30. Evidence may be given of the upon his examination, it must be proceedings of a particular combination, proved, that, in substance, he swore the as introductory to proof that the defendwhole of what is so set out, though se-ants were concerned in it. Rex v. Hamveral distinct assignments of perjury are mond and Webb, 2 Esp. 719. Kenyon, made thereon. Rex v. Leefe, gent., one, C. J. 1799. &c. 2 Campb. 134. Ellenborough, C. J. 1809.

31. Under an indictment charging the defendants with conspiring to cause 27. An indictment charging the de-themselves to be reputed to be men of fendant, a feme covert, living separately property, for the purpose of defrauding and apart from her husband, with neg-tradesmen; various instances of false relecting and refusing to provide necessary presentations made to different persons meat and drink for her servant, and may be given in evidence. Rex v. Rokeeping her without sufficient warmth, berts and others, 1 Campb. 399. Ellenwhereby she became sick and emaciated, borough, C. J. 1808. was held insufficient in not alleging, that 32. A. was convicted before two mathe servant was of tender yenrs, and gistrates of having smuggled spirits in under the dominion and controul of the his possession upon the testimony of B. defendant. Rex v. Elizabeth Ridley, 2 and others. An information was afterCampb. 650. Lawrence, J. Salop, 1811. wards filed against A. for obstructing the S. P. there said to have been deter-officers, and B. swore to an alibi. Held, mined by a majority of the judges upon that the record of the conviction, setting

out the depositions of the witnesses, meanor may be legally convicted upon could not be read to contradict B.'s evi- the uncorroborated evidence of an acdence. Rex v. Howe, 1 Campb. 461. complice. Rex v. Jones, ubi supra. Ellenborough, C. J. Maidstone, 1808.

C. (c) Sufficient.

Atwood's case, 2 Leach, Cro. Cas. 521. 40. Upon an indictment for an attempt to commit a rape, as well as for the capital offence, evidence of the prosecutrix's general bad character is admissible; but not of particular facts. Rex v. Clarke, 2 Stark. 241. Holroyd, J. 1817.

33. Where a commissary who was directed in the warrant for his appointment to obey the orders of the lords of the treasury, was indicted for a fraud, a letter of instructions, received by the de41. The husband of a woman who fendant, signed by three lords of the charges a man with an attempt to comtreasury, which he was accused of hav-mit a rape, may prove her state and aping disregarded, was admitted upon pearance and that she made complaint proof of the hand-writing of the three at the time; though her declarations persons whose names were subscribed to are not evidence of the facts. Rex v. it without producing the commission. Clarke, 2 Stark. 241. Holroyd, J. 1817. Rex v. Jones, 2 Campb. 131. Ellenborough, C. J. 1808.

34. So, in an indictment for perjury, in an answer to an allegation exhibited before a surrogate, it is, prima facie, sufficient to prove that he has generally acted in that capacity. Rex v. Verelst, Esq. 3 Campb. 432. Ellenborough, C. J.

1813.

D. PROCESS.

42. A recognizance for the appearance of persons charged with a misdemeanor, may be conditioned for their appearance in court at the trial, where the prosecutors think their presence desirable with a view to identity, &c. Rex Meyer and others. Abbott, C. J. Guildhall, 20 April, 1819.

35. But if it appear that the surrogate was irregularly appointed, the defendant. must be acquitted. Ibid.

E. NEW TRIAL.

36. In a criminal information charging the defendant, as major-commandant of a battalion of volunteers, with defrauding government by returns of false 43. Held, that where defendant has musters, the production of the gazette been acquitted upon an indictment for a in which the defendant's appointment is misdemeanor, a new trial cannot be officially announced, is not sufficient granted, even for a misdirection of the evidence of such appointment, unless judge. R. v. Cohen and Jacob, 1 Stark. notice has been given to produce the 516. Per Ellenborough, C. J. 1816. original commission. Rex v. Gardner,

2 Campb. 513. Ellenborough, C. J. 1813.

And see R. v. Holt, 5 T. R. 436.

MISNOMER.

37. But he is concluded by styling (And see ante. ABATEMent, B. (b).) himself major-commandant in his returns to the war-office. Ibid.

38. Proof that J. S. shortly before the 1. Declaration on bail bond stated preferring of the indictment was legally that plaintiffs sued out a latitat against settled in the parish of A., is prima facie Francis, J. by the name of John J. sufficient to support an averment that he Held, that in an action against one of the now is settled there. Rex v. Tanner, et bail, this allegation was not supposed by alt. 1 Esp. 304. Ashhurst, J. Hertford, the production of a writ against John J. 1795. though he signed the bond, "Francis J. And see Rex v. Inhabitants of Wake-arrested by the name of John J." and field, 5 East, 335, 7, 8; S. C. 1 Smith, 512, 4.

39. A person indicted for a misde

plaintiffs would have proved that he was their debtor, and the person whom they meant to hold to bail. Scandover aud