aforesaid, in due manner was then and there elected to be one of the chief constables of the hundred aforesaid, in the room and stead of one J. N., whereof the said J. S. afterwards, to wit, on the day and year aforesaid, at the parish last aforesaid, in the county aforesaid, had notice. Nevertheless, the said J. S. not regarding his duty in that behalf, but contriving and intending the due execution of justice to hinder and prevent, afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, unlawfully, wilfully, obstinately, and contemptuously did refuse, and from thence continually until the day of the taking of this inquisition, unlawfully, wilfully,

obstinately, and contemptuously hath refused, and still doth [ *669 ] *refuse, to take upon himself and execute the said office of chief constable, within the hundred aforesaid, to wit, at the parish last aforesaid, to the county aforesaid; contrary to his duty in that behalf, in manifest contempt and delay of justice, and against the peace of our lady the Queen, her crown and dignity. The indictment must shew by whom the defendant was elected, and that he had notice. R. v. Harper, 5 Mod. 96.

Fine or imprisonment, or both. See R. v. Bower, 1.B. & C. 587; 2 D. & R. 842.

Evidence.

1. Prove the election, by subpoenaing the clerk of the peace to produce the minutes of it. 2. Prove the service of a notice upon the defendant, informing him of his election, and requiring him to attend before the justices to be sworn. 3. And prove either an actual refusal to serve the office; or that he did not attend to be sworn in, which would be prima facie evidence of a refusal.

On the other hand, the defendant, as a defence, may prove: 1. That he is not an inhabitant resiant of the place for which he is chosen. R. v. Adlard, 7 D. & R. 340; 4 B. & C. 772: Donne v. Martyr, 2 M. & 91; 8 B. & C. 62; 1 Burn's J., by Chitty, tit. "Constable," s. 2.—2. That he is president or one of the commons or fellows of the faculty of physic in London. 32 H. 8, c. 40.-3. That he is a surgeon, duly admitted, and practising in London, semb. See 5 H. 8, c. 16; 18 G. 2, c. 15: R. v. Pond, Comyns, 312.-4. That he is an apothecary, free of the company of apothecaries in London, or (if he reside in the country) having served seven years' apprenticeship. 6 & 7 W. 3, c. 4. -5. That he is a practising barrister or attorney. Semble, 2 Hawk. c. 10. s. 39.-6. That he is an alderman of London. 2 Hawk. c. 10, s. 40.-7. That he is a serjeant, corporal, or private man serving in the militia. 26 G. 3, c. 127, s. 139.-8. That he is a protestant dissenting minister, and has taken the oaths, &c., 1 W. & M. c. 18, s.

11, and does not follow any trade, occupation, &c., for his livelihood, excepting that of a schoolmaster. 52 G. 3, c. 155, s. 9.-9. That he is a catholic clergyman, and has taken the oaths prescribed. 31 G. 3, c. 32, s. S.-10. That he is a foreigner. R. v. Mierre, 5 Burr. 2787.-11. That he has a special exemption from the crown, from serving in parish offices, &c. R. v. Clark, 1 T. R. 679.

But it is no answer to say that he is a Protestant dissenter or Catholic; for he may serve by deputy, if he do not wish to take the oaths. 1 W. & M. c. 18, s. 7; 31 G. 3, c. 32, s 7. Nor is it any defence that he is an officer of the King's guards, 2 Hawk. c. 10, s. 41, or a younger brother of the Trinity House, I T. R. 679, for the same reason. Nor is it any defence that he resides in the jurisdiction of a leet within the hundred or place for which he is elected; R. v. Genge, Cowp. 13; or that no constable had ever before been appointed for the place. 2 Keb.

557.

Indictment for refusing to serve the Office of Pelty Constable.

Middlesex, to wit:-The jurors for our lady the Queen upon their oath present, that J. S., late of the parish of B., in the county of *M., shoemaker, on the of the reign of our sovereign lady Victoria, and long before, was and still is an able-bodied man, resident within the parish aforesaid, between the ages of 25 years and 55 years, in the county aforesaid and duly qulified to execute the office of constable for the said parish; and that the said J. S., on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, at a special petty session of the peace of the justices of the peace of the said county, duly holden for the appointment of constables for the said parish, was lawfully and in due manner and form ɔhosen, nominated, and appointed by the said justices to be one of the constables of and for the said parish, for one year from thence next following, to do and execute all and singular those things which belong to the office of constable; and that the said J. S. afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, had due notice thereof, and then and there was summoned and required to appear before the said justices on the fifth day of August in the year aforesaid, then and there to take his oath for the due excution of the said office of constable for the said parish, according to the duty of that office, and to take upon himself the said office. Nevertheless, the said J. S., not regarding his duty in that behalf, but contriving and intending the due execution of justice to hinder and prevent, afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, unlawfully, wilfully, obstinately, and contemptuously did refuse, and from

day of, in the ninth year [ *670 ]

thence continually until the day of the taking this inquisition, unlawfully, wilfully, obstinately, and contemptuously hath refused, and still doth refuse, to take his said oath for the due execution of the said office of constable, or in anywise to take upon himself and execute the said office; contrary to his duty in that behalf, in manifest contempt and delay of justice, and against the peace of our lady the Queen, her crown and dignity. (See a similar precedent where the defendant was elected at the leet, Burn's J., by Chitty, tit. "Constable," C. C. C. 125; 4 Went. 351, 332; and the like where the election was at a court of wardmote for one of the wards in the city of London. C. C. C. 147).

The appointment, duties, and powers of parish constables are now regulated by the stat. 5 & 6 Vict. c. 109, the 21st section of which prohibits their future appointment (except for the performance of duties unconnected with the preservation of the peace) at any court leet or torn, or otherwise than under the provisions of that act, or of the County Constables Act, 2 & 3 Vict. c. 93. As to the grounds of exemption, see s.

6.

As to the evidence, see ante, p. 669.

Indictment for refusing to serve the Office of Overseer of the Poor.

Middlesex, to wit:-The jurors for our lady the Queen upon their oath present, that J. S., late of the parish of B., in the county of M., shoemaker, on the day of in the ninth year of the reign of our sovereign lady Victoria, and long before, was and still is a substantial householder in the parish aforesaid, in the county aforesaid, and an inhabitant,

and resiant in the parish, and a fit and able person to execute [ *671 ] *the office of overseer of the poor for the said parish; and that the said J. S. on the day and year aforesaid, at the the parish aforesaid, in the county aforesaid, by warrant under the hands and seals of A. C., esquire, and J. P., clerk, two of the justices of our said lady the Queen, assigned to keep the peace of our said lady the Queen in and for the county aforesaid, and also to hear and determine divers felonies, trespasses, and other misdeeds committed in the said county, (one of the said justices being of the quorum, and both of the said justices then dwelling in [or near] the parish aforesaid in the county aforesaid), was lawfully nominated and appointed to be one of the overseers of the poor of the said parish according to the direction of the statute in such case made and provided; whereof the said J. S. afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, had notice. Nevertheless, the said J. S. not regarding his duty in that behalf, but contriving and intending to render the said warrant of appointment of no effect, afterwards, to wit, on the day and year aforesaid, at

the parish aforesaid, in the county aforesaid, unlawfully, wilfully, obstinately, and contemptuously did refuse, and from thence continually until the day of the taking of this inquisition, unlawfully, wilfully, obstinately, and contemptuously hath refused, and still doth refuse, to take upon himself and execute the said office of overseer of the poor of the said parish, to wit, at the parish aforesaid, in the county aforesaid; contrary to his duty in that behalf, to the great damage of the said parish, and the parishioners thereof, in delay of the provision for and care of the poor of the said parish, in contempt of our lady the Queen and her laws, to the evil example of all others in like case offending, against the form of the statute in such case made and provided, and against peace of our lady the Queen, her crown and dignity. (See the precedents, 4 Went. 338, 439). In stating the appointment, let the terms of the warrant be particularly attended to.

Evidence.

Produce the warrant, and prove it. Prove that the defendant had notice of it, as mentioned in the indictment. And prove either that he had actually refused to execute the office, or that he did not afterwards execute it, from which his refusal to execute it will be implied. The same causes of exemption from serving the office of constable are in general equally applicable to the office of overseer of the poor. (See ante, p. 669).

Upon an indictment against the defendant for refusing to serve the office of overseer, it was held that he was a substantial householder, within the stat. 43 Eliz. c. 2, and liable to serve such office, although he occupied a house and paid rent and taxes in the parish by means of a clerk only, but slept in another parish. R. v. Poynder, 1 B. & C. 178; 2 D. & R. 258; and see R. v. Hall, 2 D. & R. 241; 1 B. & C. 123.

100

[ *672 ]

*PART III.

CONSPIRACY.

Indictment for a Conspiracy to charge a Man with a Crime.

Middlesex, to wit:-The jurors for our lady the Queen upon their oath present, that J. S., late of the parish of B., in the county of M., labourer, and A. his wife, and J. W., late of the same, carpenter, and E. W. late of the same, labourer, being evil-disposed persons, and wickedly devising and intending, not only to deprive one J. N. of his good name, fame, credit, and reputation, but also to subject him, as far as in them lay, to the pains and penalties by the laws of this kingdom made and provided against and inflicted upon persons guilty of [rape], on the third day of August, in the ninth year of the reign of our sovereign lady Victoria, with force and arms, at the parish aforesaid, in the county aforesaid, did, amongst themselves, conspire, combine, confederate, and agree together, falsely to charge and accuse the said J. N., that he, the said J. N. had then lately before [feloniously ravished and carnally known the said A., violently and against her will and consent]. AND THE JURORS AFORESAID, upon their oath aforesaid, do further present that the said J. S., and A. his wife, and J. W., and E. W., afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, in pursuance of, and according to, the said conspiracy, combination, confederacy, and agreement amongst themselves, had as aforesaid* [here set out the overt acts, as in high treason; (see ante, p. 96, et seq.); introducing the second, and each of the subsequent acts, thus: And the jurors aforesaid, upon their oath aforesaid, do further present, that in further pursuance of, and according to, the said conspiracy, combination, confederaey, and agreement, amongst them the said J. S. and A. his wife, and J. W. and E. W. had as aforesaid, they the said &c. on &c., at &c. &c. continuing the indictment from the above asterisk as thus]: falsely and unlawfully, in the presence and hearing of divers persons, did charge and accuse the said J. N., with and of the rape aforesaid. AND THE JURORS AFORESAID, upon their oath aforesaid, do further present, that, in further