rescuing and taking away from A. B. then and there being [*125] one of the officers of the excise of our said lord the king, a large quantity of foreign brandy, to wit, one hundred gallons hending any person who shall be guilty of any such offence; or in case any persons to the number of three or more so armed as aforesaid shall be so aiding or assisting; or if any person shall have his face blacked or wear any vizard, mask, or other disguise when passing with such goods, or shall forcibly hinder, obstruct, assault, oppose, or resist any of the officers of the customs or excise, or any other his majesty's revenue in the seizing or securing any such goods; or if any person or persons shall maim or dangerously wound him when attempting to go on board such ship or vessel, or shoot at or maim him when on board and in the due execution of his office or duty, then every person so offending shall be guilty of felony, without benefit of clergy. By the 2d section of the same act, any judge or justice before whom information is made on oath against a person charged with any of the above offences must certify it to one of the secretaries of the state, whereon his majesty in council may make an order requiring the offender to surrender himself within forty days after the first publication in the London Gazette; if he still neglect to obey this notice, after publishing in two successive London Gazettes, the order is to be transmitted to the sheriff of the county where the of fence was committed, who is within fourteen days after the receipt thereof, to cause the same to be proclaimed within the hours of ten and two in the market places and on the market days of two market towns near to the place where the offence was committed, and to cause a true copy to be affixed in some public place in such market towns; after all which measures, if the offender does not surrender on the day appointed for that purpose, he is adjudged to be convicted and attainted of felony, and execution may be awarded against him by the king's bench, or by justices of oyer and terminer or general gaol delivery, as in case of a conviction before them. By s. 3. persons receiving the felon after the time appointed for the surrender are made felons and liable to be transported for seven years. This statute was continued by 26 Geo. II. c. 32. 32 Geo. II. c. 10. 4 Geo. III. c. 12. 11 Geo. III, c. 51. 19 Geo. III. c. 69. 28 Geo. III. c. 23. 36 Geo. III. c. 40. s. 13. and made perpetual by 43 Geo. III. c. 156. 2 Leach, 694. 1 Leach, 255. 339. see also 45 Geo. III. c. 121. s. 11. On the act 9 Geo. II. c. 35. a person joining with others who are armed with fire arms who has nothing but a horsewhip is not indictable, 2 Stra. 1166. 1 Leach, 23. Cro. C. C. 449. Nor does it seem that taking up a hatchet accidentally during the heat of an affray is being armed with an offensive weapon within the meaning of the statute, Rose's Case, 1 Leach, 342. n. a. So large sticks with large knobs at the end and several prongs naturally growing out of them have been holden not to come under this description, Ince's Case, id. ibid.; but this seems questionable. And it has been said by Lord Mansfield that it is not necessary, under this act, that every individual should be armed, Cald. 246. 1 Leach, 255. but see 2 Stra. 1166. To bring prisoners within the words "shall be assembled in order to be aiding and assisting, &c." there must be a deliberate assembling and not a mere casual meeting, 1 Leach, 339. For an analysis and comment on the provisions of the 19 Geo. II. c. 34. see 1 Leach, 339. The defects in this pro vision are supplied by 45 Geo. III. c. 121. s. 11. which makes any forcible resistance or assault on custom-house or excise officer, or aiding and assisting therein, felony punishable with transportation for seven years, or imprisonment in the house of correc tion or common gaol for any term not exceeding three years at the discretion of the court in which the of fenders are convicted; and constitutes maliciously shooting at or upon any ship, vessel, or boat belonging to his majesty's navy, or in the service of the customs or excise in any part of the British or Irish channels or elsewhere on the high seas, within 100 leagues of any part of the coasts of Great Britain or Ireland: and the maliciously shooting at, maiming, or Second count, for actually aiding and assisting, &c. of foreign brandy, the same foreign brandy being uncustomed goods, and goods liable to pay duties which had not been paid or secured after seizure of the said foreign brandy by the said A. B. as being one of such officers of the excise as aforesaid, to wit, on the said, &c. aforesaid, at, &c. aforesaid, in contempt of our said lord the king and his laws, against the form of the statute in that case made and provided, and against the peace of our said lord the king, his crown and dignity. [Second count for being assembled with others, &c. as in the first count, except that it states that they "did aid and assist” certain other dangerously wounding any officer of the army, navy, marines, customs, or excise, or any person aiding or assisting them, or aiding, assisting, and abetting the offenders, felony without benefit of clergy.-Process. For mode of attainder by non-appear ance, see recital of the act ante 123, in note. In the construction of this provision it has been holden that the sheriff is bound to make proclamation and affix copies of the order in two market towns near the place where the crime is charged to have been committed, which though they need not be the next must not be thirty or forty miles distant when there are others nearer, Fost. 58. When the prisoner is taken, it is said that the course is to direct a habeas corpus to the officer in whose custody he remains to bring him before the court of king's bench, which, when obeyed, is entered on the roll with the return, and a suggestion is added by the attorney general setting forth the information and all the subsequent proceedings in the order directed by the statute, and concluding with a prayer for award of execution against the prisoner, see form, Fost. 51. The prisoner may traverse the suggestion on which it lies on the crown to prove all its allegations, Fost. 56. He must plead instanter and ore tenus, id. ibid. will be allowed counsel, but no copy of suggestion which may be read to him, id. ib.-venire will be awarded to try the issue, id. ibid.-If it be found by the jury for the prisoner, he will be remanded to take his trial, Fost. 58. The attorney general may if he thinks fit, after the prisoner has been arraigned on the suggestion, enter a nolle prosequi as to the suggestion and try the indictment in the common course of proceeding. Cassan's Case, Williams J. Smuggling, IV.Indictment. The venue may be laid in any county of England, 19 Geo. II. c. 34. s. 5. 43 Geo. III. c. 156. s. 2. This regulation extends only to assaults on officers in the execution of their duty, and not otherwise. 4 T. R. 490.-Evidence. It seems not clearly decided what evidence is necessary to support the allegations that the parties attacked were excise officers, and the goods seized uncustomed goods. It seems, however, that the first of these allegations need not to be positively proved, but that by 11 Geo. II. c. 30. s. 22. excise officers, acting in the execution of their duty, shall be taken as excise officers until the contrary appear, the onus probandi is thrown on the defendant, 1 Leach, 340, n. a. And see 1 Leach, 515. 4 T. R. 366. 3 Campb. 432. But reasonable proof must be given that the goods were uncustomed goods, and that the circumstances under which they were seized, were sufficient for the jury to exercise their judgment on that fact. 1 Leach, 340. n. a.-Judgment, Death; see the statute recited. Corruption of blood and loss of dower saved, s. 5.—Rewards, &c. Any person apprehending an offender, shall receive 5001. if wounded in the attempt, 50l. and, if killed, his executors will receive 1007. An offender himself, against whom no order in council has issued, discovering and apprehending any other of fender against whom such order shall be made, shall be acquitted of his own offence and of all other offences of the same kind for which no prosecution has been commenced and shall have his share of the reward, s. 10; and if he discover two he shall have 501. for each party convicted and be entitled to his own discharge, s. 11. Cro. C. C. 10, 11. seizure and that the par persons to the jurors unknown, in rescuing and taking away from the said A. B. &c. after seizure, &c.] And the jurors aforesaid, upon their oath aforesaid do further present, that on, Third Count, &c. aforesaid, at, &c. one A. B. then and there being one of the states the officers of the excise of our said lord the king, did duly seize a large quantity of foreign brandy, (that is to say), one hundred ties were gallons of foreign brandy, the said foreign brandy being uncus- aiding, &c. tomed goods, and goods liable to pay duties which had not been paid or secured. And the jurors aforesaid, upon their oath aforesaid do further present, that the said (defendants) and divers other persons to the number of three persons and more, whose names are as yet unknown to the said jurors, after the said first day of July, which was in the year of our Lord one thousand seven hundred and forty-six, to wit, on the said, &c. with force and arms at, &c. aforesaid, being then and there armed with fire arms and other offensive weapons, to wit, with guns, &c. (as before) unlawfully, riotously, routously, and feloniously did assemble themselves together, and being then and there so assembled as last aforesaid, and being then and there so armed as last aforesaid, unlawfully, riotously, routously, and feloniously were aiding and assisting in rescuing* and [*126] taking away from the said A. B. then and there being one of such officers of the excise of our said lord the king, the said last mentioned foreign brandy after such last mentioned seizure of the said foreign brandy by the said A. B. then and there being one of such officers of the excise as aforesaid, to wit, on the said, &c. at, &c. in contempt of our said lord the king and his laws, against the form of the statute, &c. and against the peace, &c. Geo. II. c. 34. for assem carrying Surrey. That C. D. late of, &c. E. F. late of, &c. and I. K. For felony, late of, &c. and L. M. late of, &c. since the 24th day of July, under 19 which was in the year of our Lord 1746, to wit, on, &c. with force and arms at, &c. being armed with fire arms, and other bling armed offensive weapons, to wit, with guns, pistols, carbines, pole- to assist in axes, large sticks, bludgeons, clubs, and loaded whips, unlaw- running and fully and feloniously did assemble themselves together in order away uncusto be aiding and assisting in running and carrying away un- tomed goods. customed goods, and goods liable to pay duties which had not (4) been paid or secured, to wit, 1800 lbs. of tobacco, upon which the duties had not been paid or secured, in contempt of our sovereign lord the king and his laws, to the evil and pernicious example of all others in the like case offending, against the peace, &c. and also against the statute in such case made and provided. Second count for assembling, &c. to be aiding and assisting in the carrying away uncustomed goods, omitting "in the running, &c." That N. B., J. K., and O. R., after the 1st day of October For a misde (a) See 2 Leach, 604. and ante 124. n. a. Geo. III. c. cer of excise on shore. (b) meanour, on which was in the year of our Lord 1794, to wit, on, &c. with statute 24 force and arms at, &c. in and upon C. W. then and there being 47. s. 15. for an officer of our lord the king in the service of the excise of assaulting our said lord the king, duly constituted and appointed, and and obstruct- then and there being on shore in the due execution of his office ing an off and duty as such officer as aforesaid, in seizing and securing [*127] to and for the use of our said lord the king, a large quantity, in execution to wit, 500 pounds' weight of soap, which said soap was then of his duty and there liable to be seized by the said C. W. as such officer as aforesaid and then and there being in the peace of God and of our said lord the king, unlawfully and violently did make an assault, and him the said C. W. so being then and there on shore in the due execution of his said office and duty in manner aforesaid, unlawfully and forcibly did hinder, oppose and obstruct, to wit, &c. and other wrongs, &c. to the great damage, &c. in contempt, &c. to the evil example, &c. against the peace, &c. and against the form of the statute, &c. [The second count charged the defendants with having assaulted C. W. an officer of the excise then and there being on shore in the execution of his duty, and the third count charged, that the defendants hindered, opposed and obstructed C. W. he then and there being an officer of the excise and on shore in the due execution of his duty.J Information [Commencement of information as ante 6.] to understand and (b) See other precedents, 2 Leach, 803. 1 Bos. and Pul. 187. Starkie, 398. and see the precedent and notes, ante 122 to 126.-As to the offence. The 24 Geo. III. sess. 2. c. 47. s. 15. enacts, that if any officer of his majesty's navy, customs or excise being on shore or going on board, or being on board or returning from on board, any ship, boat, or vessel within the limits of any of the ports of this kingdom, or within four leagues from the coasts thereof, shall be hindered, opposed, obstructed, or assaulted in the due execution of his or their of fice or duty, either in the day-time or night; every person so hindering, opposing, obstructing, or assaulting shall on conviction be sentenced to hard labour on the river Thames, or other navigable river in that part of Great Britain called England for any term not exceeding three years, according to the directions of 19 Geo. III. c. 74. This act is not repealed by 24 Geo. III. c. 48. s. 10. It extends to officers employed not only in suppressing smuggling, but engaged in every other branch of the revenue. If the officer be engaged in a search for goods which have not paid the duties he will be within the protection of this act though he has no warrant, and the words on shore extend to every part of the land however distant from the sea, 2 Leach, 803. 1 Bos. & Pul. 187.-Proceedings before magistrates, plea, &c. The offender may be conveyed before one or more justices residing near to the place where the offence was committed, and by him or them sent to the county gaol for trial at the assizes, 24 Geo. II. sess. 2. c. 47. s. 15. Justice may not admit him to bail without a recognizance, himself in 2001. and two sureties in 100%. each; which, if taken, are immediately to be transmitted to the clerk of assize or other proper officer of the court where the party is bound to appear, id. s. 19. If an indictment be found against him he will not have time given him to traverse it as is usual in case of misdemeanours, but must plead and be tried immediately, id. s. 15.-Indictment. The venue may be laid in any county of England or Wales, if the offence be committed in England, Wales, Berwick, or within four leagues of any part of the coasts, id. s. 17. misdemean excise offi cers, and under two warrants of censed. (c) be informed, that some time ago, that is to say, on, &c. at, by attorney &c. one A. B. of, &c. one of the officers of excise of our said general for a present sovereign lord the king, in his own proper person, our at comcame before G. H. esquire, and J. K. esquire, two of the jus- mon law in tices of our said present sovereign lord the king, assigned to assaulting keep the peace of our said present sovereign lord the king in and for the county of S. aforesaid, and also to hear and deter- presenting a mine divers felonies, trespasses and other misdemeanours gun at them in defendcommitted within the said county, and then and there gave to ant's house them the said justices information and complaint that C. D. which they &c. [here set out the information,] and that thereupon after- had entered wards that is to say, on, &c. at, &c. one L. M. of, &c. being a credible witness* in that behalf, came before them the said [*128] justices, and took his corporal oath upon the Holy Evangelists distress upon to speak the truth of and concerning the premises specified in conviction the said information (they the said justices having then and for selling there sufficient and competent power and authority to adminis- liquor unliter the said oath to the said L. M. in that behalf) and the said L. M. being so sworn as aforesaid, then and there, before the said justices, said, deposed and swore of and concerning the premises contained in the said information, that, &c. [here set Defendant's forth the evidence and then proceed as follows.] And that appearance, confession, thereupon the said C. D. after having been duly summoned, and convic and then appearing before them the said justices upon the said, tion. &c. at, &c. and being then present, and having fully understood the said information, and the said evidence thereupon given by the said A. B. was then and there asked by them the said justices if he had any thing to say for himself why he the said C. D. should not be convicted of the premises charged upon him in and by the said information; and that forasmuch as the said C. D. then acknowledged to them the said justices that he had not such license for retailing spirituous liquors, as the statutes in that case made required; and because it manifestly appeared to them the said (justices) they having heard and fully understood all and singular the matters and things alleged by the said C. D. in his defence, that the said C. D. (c) See 4 Wentw. 394. and other precedents for misdemeanours at common law in assaulting and obstructing officers of excise acting under warrants, 4 Wentw.375.377.385. 387.392. 399, 400. 437. Ashurst J. Paper Books, 24 vol. 169, 170. 25 vol. 81, 26 vol. 99.—As to the offence. To warrant an information or indictment for obstructing officers in the execution of their duty, it is not necessary that sinuggled goods should actually be found, though the officers search at their peril, 6 Esp. Rep. 126. in notis; but as to the latter point, see 1 T. R. 535. 3 Esp. R. 135.-Evi- |