town or hamlets, or places and counties, &c." it is said, that all Dukes, Marquises, Earls, Viscounts and Barons of other nations, or who are not Lords of the Parliament of England, are called Esquires, except they have been created Knights; and that the sons of all the Peers and Lords of Parliament of England are in law, during the life of their fathers, called Esquires, and must be so named. In Hawkins's Pleas of the 1791. GRAHAM'S 109. CASE. (2) 21 Hen. 6. Theolal's C. 15. s. 8. Crown (1), in treating of what shall be considered a sufficient (1) 2 Hawk. addition of the estate and degree of the appellee in an appeal, page 271, pl. he says, that" although it seems to be admitted by the YearBook of Cases (2) in the reign of Henry the Sixth, that the Bishop of an Irish diocese may be as well described by the addition of his bishoprick, as an English bishop may by the addition of an English one; yet it seems clear, that no one can be well described by the addition of a temporal dignity in Ireland, or any other nation besides our own, because no such dignity can give a man a higher title here than that of Esquire." The Judges therefore, upon these authorities, are clearly of opinion, that "JAMES HAMILTON, Esquire," is a sufficient description of the person and degree of the prosecutor of the present indictment; and that the subsequent words, "commonly called Earl of Clanbrassil in the kingdom of Ireland," may be rejected as surplusage. But they conceived, that the more correct and perfect mode of describing the person of the prosecutor would have been, "JAMES “HAMILTON, Esquire, Earl of Clanbrassil in the kingdom "of Ireland;" and as this more perfect description appears upon the face of this indictment, by considering the intervening words "commonly called" as surplusage, they are of opinion, that the indictment is not bad, and that the conviction of the prisoner is legal. THE KING against HARRIS. CASE CCXLVIII. THE statute 26 Geo. II. c. 6. s. 1. enacts, "That all ships Disobeying and vessels arriving, and all persons, goods, and merchan- the orders of the Privy dises whatever, coming into any port or place within Great Council with respect to the performance of quarantine is an offence at common law. 1791. HARRIS'S Britain, &c. from any place from whence the Privy Council THE Privy Council in the month of July 1782, made and published an order, "That if any pilot or other person shall go on board any ship or vessel obliged to perform quarantine, such pilot or other person shall perform quarantine in like manner as any person coming in such ship or vessel shall be obliged to perform the same." THE defendant was a pilot at Bristol, and on the 8th June 1788, went on board a ship called the Stephen, then under orders to perform quarantine, in order to pilot her into the port of Bristol, but in six days afterwards, and three days before the time of quarantine was expired, he quitted the Stephen and went on board another ship not obliged to perform quarantine in Bristol Channel, but did not go on shore until after the term of the Stephen's quarantine was completely expired. THE ATTORNEY GENERAL filed an information against him for this offence; charging in the first count, that he went on board another vessel; and, in a second count, that he went on shore before the term of quarantine was expired, concluding, against the form of the statute. THE JURY, on the trial before LORD KENYON, Chief Jus tice, at the Sittings after Michaelmas Term 1790, found the defendant GUILTY. In the Hilary Term following, the defendant was brought up to receive the Judgment of the Court of King's Bench. 1791. HARRIS'S CASE. A pilot who 6. s. 5. A QUESTION was raised, Whether this information could goes on board be sustained as for an offence at Common Law, and the de- a ship under fendant liable to a discretionary punishment? or, whether a and quits her quarantine, particular mode of proceeding and punishment had not been before the quarantine prescribed by 26 Geo. II. c. 6. s. 5. which enacts, "That if expires, is not any commander, master, or other person, having charge of within the penalties of any ship or vessel liable to perform quarantine, shall himself 26 Geo. II. c. quit, or shall knowingly permit or suffer any seaman or passenger coming in any such ship or vessel to quit such ship or vessel, by going on shore, or by going on board any other ship, boat, or vessel, before such quarantine shall be fully performed, every such commander, master, or other person having charge of such ship or vessel, shall for every such offence forfeit five hundred pounds, one moiety to the King, &c. AND THAT, if any person shall so quit such ship or vessel, by going on shore, or by going on board any other ship or vessel, every such person shall suffer six months' imprisonment, and forfeit the sum of two hundred pounds, one moiety to the King, the other moiety to him who will sue for the same by action of debt, bill, plaint, or information," &c. (a). THE COURT was clearly of opinion, That disobeying the order thus made by the Privy Council was an offence at Common Law, and compared it to the case of Rex v. Robinson (1), where an indictment for disobeying an order of (1)2 Burr.799 maintenance was held good, notwithstanding the statute 43 Eliz. c. 2. s. 7. enacts, That fathers, &c. shall maintain their children in such manner as the Justices shall direct, and annexes a penalty of twenty pounds a month, to be recovered in a summary way; for it was held as a clear and established principle of law, that where a statute creates a new offence by prohibiting and making unlawful any thing which was law (a) For further regulations respecting the performance of quarantine, see 39 and 40 Geo. III. c. 80. 45 Geo. III. c. 10. 46 Geo. III. c. 98. 50 Geo. III. c. 20. and the 51 Geo. III. c. 46. 1791. HARRIS'S CASE CCXLIX. confession of on his examin ful before, and appoints a specific remedy against such new offence by a particular sanction, and particular mode of proceeding, that particular mode of proceeding must be pursued and no other; but that where the offence was antecedently punishable by a common law proceeding, and the statute prescribes a particular remedy by a summary proceeding, either method may be pursued. BUT it was determined in the present case, that the 26 Geo. II. c. 6. s. 5. relates entirely to the captain, seamen, and passengers on board such ship or vessel, and does not reach the case of the present defendant, who is not to be considered in either of those characters. THE defendant was accordingly sentenced to one year's imprisonment. THE KING against BENJAMIN LAMBE. A voluntary AT the Summer Assize for the county of Surry, holden at felony made Croydon 18th August 1791, Benjamin Lambe was indicted, by a prisoner for that he on the 10th July 1791, the dwelling-house of ation before a Charles Hockstetter burglariously did break and enter, and magistrate, five silver tea-spoons, &c. the goods and chattels of the said the magistrate Charles Hockstetter, feloniously and burglariously did steal, into writing, take, and carry away. and reduced by may be given in evidence on the trial, though the magistrate has has refused to sign it. It was clearly proved, that the property in the indictment, which was to a large amount, was taken by the prisoner out neglected and of the prosecutor's house. It was also proved, that on the the prisoner 13th July the prisoner was apprehended, and taken before Sir Sampson Wright, at THE PUBLIC OFFICE in Bow-Street to be examined; that Lavender, the clerk, took his examination in writing, pursuant to the statute of Philip & Mary; that he afterwards read it carefully over to him; that the prisoner replied, "It is all true enough;" but that upon the clerk's requesting him to sign it, he said, "No; I would rather decline that;" and that in fact this examination, which contained a full and voluntary confession of the larceny, was not signed either by the prisoner or by the magistrate. THE COUNSEL for the prisoner objected,that as the statute 2 & 3 Philip and Mary, c. 10. requires, "That every Justice before whom any person shall be brought for felony, or for suspicion thereof, before he shall commit or send such prisoner to ward, shall take the examination of such prisoner, and information of those that bring him, of the fact and circumstances thereof; and the same shall put in writing within two days after the said examination, and the same shall certify in such manner and form as if such prisoner had been bailed;" and as the statute 1 & 2 Philip and Mary, c. 31. enacts, "That the two Justices who shall bail any person arrested for manslaughter or felony, shall certify the bailment in writing, subscribed or signed with their own hands; and that they shall take the examination of the prisoner in writing, and certify the same, together with the bailment, at the next general gaol delivery;" it was necessary that the examination should be authenticated by the signatures both of the prisoner and examining magistrate, and that as these ceremonies were omitted in the present case, the confession thus irregularly returned could not be read in evidence against the prisoner; and he cited Gilbert's Law of Evidence, 137. where it is said, that "the examination and confession, subscribed by an offender before a Justice of Peace, is good evidence against him (a).” MR. JUSTICE WILSON, who tried the prisoner, admitted the examination to be read; and the Jury found the prisoner GUILTY, on the statute 12 Ann. c. 7. of stealing in the dwelling-house to the amount of forty shillings. THE judgment however was respited, and the case saved for the opinion of THE TWELVE JUDGES, whether this examination was admissible evidence? (a) At the Spring Assizes at Worcester in the year 1793, one Bennet was tried before MR. JUSTICE WILSON on an indictment for felony: the prisoner had made a free and voluntary confession of his guilt while under examination before the committing magistrate, who took the examination in writing, which he read over to the prisoner and desired him to sign it, but which he refused to do, although he at the same time acknowledged that he was guilty of the offence. The Counsel for the prosecution offered to give this acknowledgment of guilt in evidence; but the learned Judge refused to receive it, saying that it was competent to a prisoner under such circumstances to retract what he had said, and to say that it was false; and that in the present case the prisoner had retracted in time. 1791. LAMBE'S CASE. |