Law 

 of England. 



or ab- 

 sconds. 



Ifdefen. 

 dant ap- 

 pears, 

 must de- 

 mur, 

 plead, 



Witnesses. 



Depositions 

 taken in 

 writing, 

 and on spe- 

 cial interro- 

 gatories. 



Decree or 



judgment, 



flow enfor- 

 ced. 



652 L A 



the defendant is taken upon any ofthese proceedings, he 

 is committed to the Fleet, till he puts in his appearance 

 or answer. The process ngainst a body corporate is by 

 tiutrmgcu, to distrain them by their goods and chattels, 

 in order to compel them to obey the summons. If a peer 

 be a defendant, the chancellor sends a letter missive 

 to him ; and if he neglect to appear, he may be serv- 

 ed with a subpoena; and if he still continue in con- 

 tempt, a sequestration issues without any of the mesne 

 process of attachment. The same process issues against 

 a member of the House of Commons, except only that 

 the lord chancellor sends him no letter missive. 



If a defendant absconds, as is believed, to avoid be- 

 ing served with a subpoena, a day is appointed for him 

 to appear to the bill of the plaintiff, which appointment 

 is to be inserted in the London Gazette, and read in 

 the parish church where, the defendant last lived, and 

 fixed up at the Royal Exchange ; 'and if the defendant 

 does not appear upon that dayj the bill shall be taken 

 pro confesso. 



3*. If a defendant appears and takes a copy of the 

 bill, he is next to demur, plead, or answer. If on de- 

 murrer the defendant prevails, the plaintiff's bill shall 

 be dismissed. If the demurrer is overruled, the defen- 

 dant is ordered to plead. A plea may either be to the 

 jurisdiction or to the person ; as that the plaintiff is an 

 outlaw, &c. or in bar ; as an act of parliament, fine, re- 

 lease, or former decree. The truth of this plea the de- 

 fendant is bound to prove, if put upon it by the plain- 

 tiff. In bills containing various matter, a man may 

 plead as to part, demur as to part, and answer as to the 

 residue : no exceptions to formal minutiae will be al- 

 lowed ; for the parties, upon discovery of any errors, 

 may correct them. An answer is the usual defence to 

 a bill ; it is given upon oath, or honour of a peer or 

 peeress. Answers in amicable suits are usually taken 

 without oath, by consent of the plaintiff. 



35. If the plaintiff finds sufficient matter confessed in 

 the defendant's answer to ground a decree upon, he may 

 proceed to the hearing of the cause upon bill and answer 

 only ; but in that case, he must take the defendant's an- 

 swer to be true in every point But if the issue be join- 

 ed upon the contradiction of facts, such facts are pro- 

 ved by the examination of witnesses, and their depo- 

 sitions are taken in writing. For such purpose inter- 

 rogatories are framed in writing, which, and which on- 

 ly, are to be asked of the witnesses : such interroga- 

 tories must be short and pertinent. For those wit- 

 nesses who live in the country, a commission to examine 

 is granted to four persons, two named on each side ; 

 and a commission may be had to examine persons resi- 

 ding beyond sea. 



36. The chancellor's decree is either interlocutory or 

 final. It seldom happens that the first decree is final ; 

 for if any matter of fact is strongly controverted, the 

 fact is usually directed to be tried at the bar of the 

 King's Bench, or at the assizes upon a feigned issue. 

 And it a question of mere law arises, it is the practice 

 of this court to refer it to the opinion of the judges of 

 the King's Bench, or Common Pleas, upon a case sta- 

 ted for that purpose. When all issues are tried and 

 settled, and all references to the master ended, the 

 cause is again brought to hearing upon the matters of 

 equity reserved, and a final decree is made; the per- 

 formance of which is enforced, if necessary, by com- 

 mitment of the person, or sequestration of the party's 

 estate. And if by this decree either party think him- 

 self aggrieved, he may petition the chancellor for 

 a rehearing. But after the decree is once signed and 



I. Of the 



nature or 

 crimes ant 

 punish, 

 ments. 



w; 



enrolled, it cannot be reheard or rectified but by bill of Law 

 review, or by appeal to the House of Lords. of 



37. A bill of review may1>e had upon apparent er- 



ror in judgment, or discovery of new matter or'evidence. . 



38. An appeal to the House of Lords is effected by Appeal to 

 petition to the house. House of 



Lords. 



BOOK IV. 

 OF CRIMES. 



I. Where only the rights of an individual are infrin- 

 ged, coupled with no violence, it is a civil injury ; 

 where the rights of society are invaded by the commis- 

 sion of violence, it is a crime or misdemeanor. The 

 king, being the supreme head of the community, is the 

 person injured upon any infraction of the public rights, 

 and therefore is, in all cases of public crimes and 

 misdemeanors, the proper prosecutor. Misdemeanors 

 comprehend all indictable offences not amounting to 



felony. A crime, or misdemeanor, may arise either 

 from the omission or commission of any act, in viola- 

 tion of public law ; as where a man digs a ditch across 

 a highway, he is guilty of a public misdemeanor ; and 

 if any injury thereby happens to an individual, he is 

 compellable to make satisfaction for the civil injury, 

 and indictable for the public offence. The law consi- 

 ders it not so flagrant an enormity to attempt an un. 

 lawful action, as the absolute perpetration ; and the 

 violence of passion, or temptation by hunger, may in 

 some degree extenuate a crime. Circumstances may 

 also tend to aggravate an offence ; as where a servant 

 robs his master, or stealing privately from one's person 

 the value of twelve-pence, is a capital offence ; but even 

 the carrying off a load of corn from an open field, is 

 punished merely with transportation. 



II. All persons are capable of committing crimes, 

 unless there be in them a defect of will ; for, to consti- 

 tute a legal crime, there must be both a vicious will 

 and a vicious intention ; and such vicious intention or 

 overt act is demonstrated by some evident premedita- 

 tion. So where an act is the effect .of idiotism, in- 

 fancy, lunacy, chance-medley, compulsion, or necessi. 

 ty, there cannot be a vicious intent. Infants under the 

 age of discretion, ought not to be punished by any cri- 

 minal prosecution whatever. The discretion that ac- 

 companies the perpetration or secretion of a crime, will 

 determine how far the infant possessed discretionary 

 powers. Under the age of seven years an infant can. 

 not be guilty of felony. In some cases of omission and 

 commission, the law privileges an infant, if such action 

 arise from his legal incapacity, but not for such acts as 

 a breach of the peace when above the age of fourteen 

 years. Persons of non-sane memory, cannot be tried for 

 what they have done in sound memory, and if after 

 trial they become mad, judgment cannot be pronoun- 

 ced upon them ; or if they become deranged after 

 judgment, execution shall be stayed, and a jury shall 

 determine, where there is any doubt, whether a party 

 be compos or riot. Drunkenness is a voluntary madness, 

 and is consequently an aggravation of an offence. The 

 parties stand excused of accidents by chance medley, 

 arising from the performance of some lawful act ; but 

 there is no excuse where accidents happen from the 

 performance of an illegal act. The law seems to pro- 

 tect the wife in all felonies committed by her in com- 

 pany with her- husband, except for murder and man- 

 slaughter. Theft from necessity or starvation cannot 

 be justified by the law of England; for in this country 

 the poor laws are established, to ameliorate the coiidi- 



II. Person! 

 capable of 

 committing 

 crimes. 





