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DETERMINED BY THE JUDGES
THE FOURTH YEAR OF GEO. II. 1730,
THE PRESENT TIME.
THE KING against ROBERT GODDARD AND SARAH FRASER. CASE CCXLV.
AT the Old Bailey in April Session 1791, Robert Goddard
THE indictment charged, "That they, on the 25th February 1791, one bed-quilt of the value of five shillings, one linen sheet of the value of twelve pence, &c. of the goods and chattels of George Cobb (the same goods and chattels being in a certain lodging-room in the dwelling-house of the said George Cobb, let by contract by the said George Cobb to the said Robert Goddard, and to be used by the said Robert Goddard and Sarah Fraser with the lodging aforesaid), then and there being, feloniously did steal, take, and carry away, against the form of the statute."
Ir appeared in evidence from the testimony of Elizabeth Cobb, the wife of the prosecutor, that the prisoner Goddard
On the statute
of 3 & 4 Will.
& Mary, c. 9. two persons cannot be convicted on the same indict
ment, unless a joint contract
came, on the day laid in the indictment, to look at and take the lodgings; but on his saying that he was a married man, she refused to let the lodgings to him, and desired him to send his wife. The other prisoner Sarah Fraser accordingly came to Cobb's house, in the character of Goddard's wife, to look at the lodgings; and with her the contract for them was made.
MR. BARON HOTHAM told the Jury, that on this evidence they must acquit the prisoners, for that the evidence fatally varied from the charge laid in the indictment. The indictment stated, that the lodgings were let to Robert Goddard, but the evidence proved that they were let to Sarah Fraser. THE prisoners were accordingly acquitted.
THE KING against JOHN STEVENSON.
If a prisoner, AT the Old Bailey in June Session 1791, John Stevenson indicted for a was indicted before MR. JUSTICE ASHHURST, present MR. whom the Jury BARON PERRYN, for stealing a quantity of wearing-apparel, are charged,
be by sudden the property of Thomas Thomas.
THE prisoner had been arraigned before the second Midrendered inca- dlesex Jury, and they were charged to try him. pable of re
maining at the bar, the Jury may be dis
THE evidence on the part of the Crown was nearly closed, when the prisoner was suddenly seized with a fit, which, by charged from the report of the surgeon who was called in, rendered him incapable of being again brought to the bar for trial.
the trial of
ment, and the prisoner, on
THE COURT accordingly discharged the Jury from this his recovery, trial (a), and proceeded to try the other prisoners.
THE ensuing morning Stevenson, being sufficiently recovered, was again put to the bar, and the first Middlesex Jury was charged to try him; and on hearing the evidence they found him GUILTY.
(a) See the case of Eliz. Meadowes, Foster's Crown Law, 76. Rex v. Ann Scalbert, post, Summer Assize, York, 1794; and Rex v. William Edwards, Monmouth Lent Assizes, 52 Geo. III. before Mr. Baron Wood; and afterwards determined by the JUDGES in the Exchequer Chamber acc; 3 Campbel's Rep. 207.
THE KING against MARY GRAHAM.
AT the Old Bailey in July Session 1791, Mary Graham A Peer of Irewas convicted of grand larceny before MR. JUSTICE BULLER, land cannot present MR. JUSTICE WILSON, and MR. SERJEANT ROSE, cute by his Recorder of London.
sue or prose
name of dignity; but must be described by his proper
THE indictment was as follows:-" MIDDLESEX. Jurors, &c. upon their oaths present, that Mary Graham, name, with the late of the parish of St. George's, Hanover-square, in the addition of his degree and county of Middlesex, spinster, on the 14th June 1791, with title (a). force and arms, at the parish aforesaid, in the county afore- Salk. 451. said, two silver table spoons, of the value of twenty shillings, of the goods and chattels of JAMES HAMILTON, ESQUIRE, commonly called EARL OF CLANBRASSIL in the kingdom of Ireland, then and there being found, then and there feloniously did steal, take, and carry away," &c.
Ir appeared in evidence, by the testimony of a witness who had lived four years in the capacity of valet to the prosecutor, that the father of the prosecutor had been dead many years, and that the prosecutor was generally understood to be his heir, and had, since that event, borne the title of Earl of Clanbrassil.
THE learned Judge, upon this evidence, conceived that the indictment was erroneous in stating the prosecutor to be commonly called EARL OF CLANBRASSIL, for that as he was legally possessed of that title in his own right, it became his name of dignity, by which name he ought to be described; for that this was distinguishable from the case where a Duke or an Earl's son holds the title of Lord by courtesy: there, in describing such a person, in legal proceedings it is usual
(a) But see 39 & 40 Geo. III. c. 77. by which Great Britain and Ireland are united.-Four Lords spiritual of Ireland by rotation of Sessions and twenty-eight Lords temporal elected for life, by the Peers of Ireland, shall sit in THE HOUSE OF LORDS; and all the Lords of parliament on the part of Ireland spiritual and temporal sitting in the House of Lords shall have the same rights and privileges respectively as the Peers of Great Britain.
to add "commonly called," &c. to his family name; but that in the present case the prosecutor did not hold the title of Earl of Clanbrassil by courtesy, but by law; and in declarations in civil suits it was the constant practice to describe the person by his name of dignity. The indictment therefore ought to have been James Hamilton, Esquire, Earl of Clanbrassil, in the kingdom of Ireland; and not James Hamilton, Esquire, commonly called Earl of Clanbrassil, &c. But it being stated that the practice was to use the present form, the case was saved for the opinion of the TWELVE JUDGES.
MR. BARON PERRYN, in the December Sessions following, ordered the prisoner to be put to the bar, and after stating the case as above described, delivered the opinion of the JUDGES to the following effect:-Eleven of the TWELVE JUDGES assembled to consider of this case, and they are unanimously of opinion, that the present indictment is not bad in its present form. The authorities by which this opinion is supported are, the case of Lord Sanquhar, a Baron of (1)9 Co. Rep. Scotland (1), who, in the reign of James the First, was indicted as an accessary before the fact in the murder of John Turner. The indictment stated, that one Robert Creighton, late of the parish of St. Margaret, in the county of Westminster, Esquire, not having the fear of God before his eyes, &c. &c. On this case a question was propounded to the Judges, In what manner Lord Sanquhar, being an ancient Baron of Scotland, should be tried? And it was answered, that none within this realm of England is accounted a Peer of the realm but he who is a Lord of Parliament of England; for every subject is either a Lord of Parliament or one of the Commons, and Lord Sanquhar is not a Lord of Parliament within this kingdom, and therefore should be tried by the Commons of the realm, viz. Knights, Esquires, and others of the Commons. Also, in Sir Edward Coke's Exposition of the Statute of Additions (2), the 1 Hen. V. c. 5. which ordains, "that in every indictment on which process of outlawry lies, additions shall be made to the name of the defendants, of their estate, or degree, or mystery, and of the
(2) 2 Inst. page 667.