queftion, it has always been taken to mean, not the inftrument by which the breaking was made, but the inftrument, as a hook, a fork, or other thing, by which the property was capable of being removed, introduced fubfequent to the act of breaking, and after that effential preliminary had been fully compleated. Suppofe the brick-wall of a house to be broken with a pick-axe, and that part of the pick-axe had, in the violence of breaking, been within-fide of the house, could this have been held an entry to steal?

In the prefent cafe, the introduction of the inftrument is part of the act of breaking; but it is impoffible to conceive that it was introduced for the purpofe of purloining property, for it is in capable of performing fuch an office. It was used for the purpose of breaking into the domicile of the propri etor; and if the breaking it effected had enabled the prifoners by any poffible means to have taken goods through the aperture, that branch of the offence would most certainly have been compleat; but as no property has been proved to lie near the hole, fo as to be removed by means of a hand, hook, or other inftrument, the degree of breaking itself feems infufficient. The cafes that have been mentioned of entries by a hand, or a foot, or a pistol, all proceed on the idea that the breaking had been previously compleated, and are confidered as acts of dominion acquired by the breaking over the property of the owner; but there is not a cafe which has yet gone the length of determining, that the introduction of an inftrument in the a& of breaking shall fatisfy the two acts which the law requires, viz. a breaking to obtain dominion Over the property, and an entry to fteal it. The prifoners were acquitted.

The KING against BRAZIER.

This was a cafe referved for the opinion of the Twelve Judges, by Mr. Juftice Gould, at the Affizes for York, on the trial of an indictment for a rape on the body of an infant under seven years of age. The information of the infant was received in evidence against the prifoner; but as she had not attained the years of prefumed difcretion, and did not appear to poffefs fufficient understanding to be aware of the dangers of perjury, the was not fworn.

The

The prisoner was convicted; but the judgment way refpited, on a doubt, Whether evidence, under any circumftances whatever, could be legally admitted in a criminal profecution, except upon oath?

The Judges were unanimously of opinion, That no teftimony whatever can be legally received, except upon oath: and that an infant, though under the age of feven years, may be fworn in a criminal profecution, provided fuch infant appears, on ftrict examination by the Court, to poffefs fufficient knowledge of the nature and confequences of an oath; for there is no precife or fixed rule as to the time within which infants are excluded from giving evidence; but their admiffibility depends upon the fee and reafon they enter tain of the danger and impiety of falfehood, which is to be collected from their answers to queftions propounded to them by the Court; but if they are found incompetent, their teftimony cannot be received.

JOHN RUSTON'S CAS E.

At the old Bailey January Seffion, 1786, on the trial of William Bartlet for fimple grand larceny, John Rufton, a man mutus et furdus à nativitate, was produced as a witnefs on the part of the Crown.

Martha Rufton his fifter, being examined on the voir dire, it appeared that she and her brother had been for a feries of years enabled to understand each other by means of certain arbitrary figns and motions, which time and neceffity had invented between them. She acknowledged that these figns and motions were not fignificant of letters, fyllables, words, or fentences, but were expreffive of general propofitions, and intire conceptions of the mind; and that the fubjects of their converfation had in general been confined to the domeftic concerns and familiar occurrences of life. She be lieved, however, that her brother had a perfect knowledge of the tenets of Chriftianity, and was certain that he could communicate to him true notions of the moral and religious bature of an oath, and of the temporal dangers of perjury.

It was objected by the prifoner's Counfel, that although thefe modes of conveying intelligence might be capable of impreffing the mind with fome fimple ideas of the existence

of

of a God, and of a future ftate of rewards and punishments; yet they were utterly incapable of communicating any perfect notions of the vast and complicated fystem of the Christian religion; and therefore the witness could not with propriety be fworn upon the Holy Gofpels. The difficulty of arraigning a man for perjury whom the law presumes to be an ideot, and who is confequently incapable of being instructed in the nature of the proceedings against him, was alfo urged against the admiffibility of the witness.

But the Court over-ruled the objection? and John Ruston was fworn to depofe "the truth," &c. and Martha Rufton "well and truly to interpret to John Ruston, a witness here produced in behalf of the King against William Bartlet, now a prifoner at the bar, the questions and demands made by the Court to the faid John Rufton, and his answers made to them."

The prifoner was found guilty, and received fentence of tranfportation for seven years.

ANN GUY'S CASE.

At the Old Bailey, in April Seffion, 1782, Ann Guy was indicted as an acceffary after the fact, in receiving two guineas, the well knowing them to have been stolen.

Mr. Baron Eyre faid he was clearly of opinion, That there cannot be an acceffary after the fact for receiving money. The ftatutes of 3 Will. and Mary, c. 9. f. 4. and 5Ann. c. 31. f. 5. fay, That whoever shall buy or receive any goods or chattles that fhall be felonioufly ftolen, knowing the fame to be ftolen, fhall be deemed an acceffary after the fact to fuch felony; but money cannot be well confidered as goods or chattles, within the meaning of thefe Acts. The prifoner was acquitted.

GRIE

GRIBBLE'S CASE.

At the Old Bailey, February Seffion, 1782, an indiament on the ftatute 5 Eliz. c. 4. was preferred, charging the prifoner with having ftolen a watch from Thomas Sheridan, privately from his perfon, and without his knowledge.

The profecutor had been drinking at a public-houfe with the prifoner, and being both of them much intoxicated, they went together to the prifoner's lodgings, where the profecutor fell asleep, and, while he was afleep, the prifoner ftole his watch.

The Court ruled this not to be such a stealing privately as would out the offender from the benefit of clergy, within the meaning of the legislature; and mentioned the following case as having been decided by the Judges:—A perfon, who had become intoxicated at Vauxhall-gardens, fell fast asleep, in his way home, in one of the watch-houses or niches to Westminster-bridge. A waiter alfo from Vauxhall, paffing that way, ftole the buckles out of his fhoes without waking him; and the Judges were of opinion, That the ftatute was intended to protect the property which perfons by proper vigilance and caution fhould not be enabled to fecure; but that it did not extend to perfons who by intoxication had expofed themselves to the dangers of depredation, by deftroying thofe faculties of the mind, by the exertion of which the larceny might probably be prevented.

The Jury found the prifoner guilty of stealing; but not privately from the person.

THE

THE

LAWYER'S

AND

MAGISTRATE'S MAGAZINE,

For JANUARY, 1791.

SKETCHES

Of the Life and Character of PHILIP EARL of HARDWICKE, late LORD HIGH CHANCELLOR OF ENGLAND, communicated to RICHARD COOKSEY, Efq. and proposed to be inferted in his intended HisTORY OF WORCESTERSHIRE,

H

SIR,

an

AVING met with an Advertisement, wherein you mention a defign of giving an Effay on the life of Philip Earl of Hardwicke, in your propofed Hiftory of Worcestershire, and inviting any information on that fubject, I send you what occurs to the recollection of an old man of the law, who knew him well; of which you need not doubt the authenticity; and let me remind you of your duty as an hiftorian:

Ne quid falfi dicere audeat ;

Ne quid veri non audeat.

Be not therefore afraid of inferting the truths I fhall from time to time fend to you, as they fhall occur to my recollection, and I find time to put them on paper; they will not, I profefs, tend to flatter his Lordship's memory, or pay court to his illuftrious defcendants, but may be proper to be known and tranfmitted to pofterity for the purpose of form