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I should see that the defence did not arise till after the action brought, I should say that the certificate did not apply to the plea so pleaded; and the result would be the same if it appeared upon the face of the record that the bankruptcy did not happen till after the action brought; but that does not appear to us at present.

LAWRENCE, J. If it turned out at nisi prius that the defendant was not a bankrupt till after the exhibiting of the plaintiff's bill, I should say that the certificate did not apply to this plea.

Per Curiam,

Judgment for the defendant.

1805.

TOWER

against CAMERONS

The KING against NIELD and Seven Others.

[417]

Wednesday,
May 22d.

and 40 Geo. 39 c. 106, enacts,

that all agree

ments, &c. in

men manufac

facture, &c. in

thereof, &c.

shall be illegal:

and it gives a

summary form

THIS
HIS was a conviction upon the stat. 39 and 40 Gco. 3, The staf. 39
c. 106, s. 1 and 2 (the form of which is given in a sche-
dule to the act) which stated that on the 28th of November,
45 Geo. 3, the defendants were convicted before J. L. and writing or not,
R. A. Esquires, two justices of the peace for the county of by any journey-
Lancaster, of having, on the 1st of November in the year turers, for con-
aforesaid, at Chalton Row, in the county aforesaid (each and person carrying
every of them then and there being workmen in the manu- on any manu-
facture of cotton) been unlawfully concerned in the making the conduct
of and entering into a certain agreement for the purpose of
then and there controlliog W. Borrodaile, &c. then and
there carrying on the manufacture and trade of cotton spin
hing, as masters and partners, in the conduct and manage
ment of their said trade and manufaoture; the said agree-
ment not being a contract made between any master and
journeyman or manufacturer, for or on account of the work or
service of such journeyman or manufacturer, contrary to the
form of the stat. 39 and 40 Geo. 3, intitled, &c.; and the said in entering into
justices did thereby order and adjudge the defendants for the agreement for
said offence to be severally committed to and confined in the controlling of
common gaol for the said county for the space of three A.
calendar months. The Sessions on appeal confirmed the what the agree-
without stating
Conviction; which being removed into this Court by certio- ment was (even

of the statute in stating the agreement to be for the purpose of controlling,
for controlling, &c. would not at any rate have been a faţat variance) was bad.
VOL. VI.
Y

rari,

of convicti which the of

ed to be stated;

fence is requir- .

held, that a con. viction alleging generally that

were concerned

the defendants

66 a certain

the purpose

if a departure from the words &c. instead of

1805.

The KING against NIELD

and Others.

[418]

rari, objection was taken that the conviction ought to have set forth the agreement itself, in order that the Court might judge whether it were an illegal agreement for the purpose of controlling the master manufacturers within the meaning of the act of parliament; and that the form of conviction given by s. 12, of the act, and set forth in the schedule, which directed the offence to be stated, did not dispense with the necessity of setting forth the agreement, which was the cor pus delicti, but merely the evidence of it.

Scarlet now shewed cause against a rule for quashing the conviction. The statute meant to give a compendious form of conviction; and, therefore, it is sufficient in stating the offence, as required in the schedule, to state it in the enacting words of the statute; and any writing or conversation whereby the defendants bound themselves to each other to accomplish the purpose of controlling their masters is merely evidence of the offence, which, it is admitted, need not be set forth, and not the offence itself. In many cases the set. ting out of the agreement itself in words would not afford any help to the court in construiug the conviction. For the agreement, though intelligible to the parties themselves, and capable of being rendered so by collateral evidence to the magistrates who here supply the place of a jury, might yet have no reference in terms to the trade, however clearly the intent to produce the effect charged might appear from concomitant acts, all of which it would be difficult if not impracticable to set forth: but the gist of the offence is the intent and purport of the agreement. This is very different from charging the offence of sending a threatening letter, which letter must be set out in the indictment; because unless it appear upon the face of the letter itself to contain threats of the sort described in the act of parliament, the offence is not within the act; and no parol evidence can supply the deficiency. The like observation applies to the [419] case of forgery: the instrument itself alleged to be forged must be set out verbatum, in order that the Court may see that it is such an instrument as the law has prohibited to be forged; but it is different in the case of an offence which may be collected from a variety of acts and words, which serve to explain the intent and purpose of the offenders; and this incongruity might ensue from requiring the agree

ment itself to be set forth, that if it did not purport on the face of it to control the masters, but could only be shewn to do so by averments, such averments would appear to be in contradiction to the agreement itself. In Rex v. Fuller (a) it was deemed sufficient in an indictment on the stat. 37 Geo. 3, c. 70, which makes the maliciously and advisedly endeavouring to seduce any soldier from his duty and allegiance to the King a capital offence, to charge generally that the defendant did "maliciously, &c. endeavour to seduce one M. Lowe," a soldier, from his duty and allegiance, without stating the means by which he so endeavoured. He also referred to a later case of The King v. Moors and others, before all the Judges, on which he principally relied (whichhe stated very shortly); where, in an indictment on the stat. 37 Geo. 3, c. 123, against administering unlawful oaths, it was holden not to be necessary to set forth the oath itself in the indictment (b).

Erskine,

1805.

The KING against NIELD

and Others.

The stat. 37 Geo. 3, c. 123, makes it felony for any person in any manner

or form whatsoever, to administer, &c. any oath purporting or intended to bind the party to engage in any seditious pur

(a) 1 Bos. & Pull. 180, and 1 East's P. C. 92, S. C. (a) The King v. Moors and others, MS. These defendants were tried at the Summer assizes, 1801, at Lancaster, before Lord Alvanley, C. J. of C. P. upon an indictment framed on the stat. 37 Geo. 3, c. 123, against administering unlawful oaths; the 4th count of which stated that the defendants, after the passing of that act, viz. on the 12th of March, 4t Geo. 3, at Bolton, in the county of Lancaster, feloniously did administer, and cause to be administered to one John Howarth, a certain oath and engagement, then and there accordingly taken by the said J. H., and which oath and engagement was then and there intended to bind the said J. Hi, so then and there taking the same, not to inform or give evidence against any member of a certain society formed to disturb the public peace, for any act or expression of his or theirs done or made, collectively or individually, in or out of that or other similar societies, in pursuance of the spirit of that obligation; against the form of the statute, and against the peace, &c. The 8th count charged that the defendants were aiding and assisting at the taking of a certain other oath and engagement then and there taken by the said J. H., and intended to bind the disturb the pubsaid J. H. so then and there taking the same not to give evidence against any lic peace, or to associate in certain associations and societies of persons formed for seditious be of any sopurposes, against the form of the statute, &c. There were other counts for ciety, &c. form. aiding and assisting, and others stating the objects of the oath administered, ed for any such and the objects of the society differently and more generally, adapted to purpose, &c. several prohibitory parts of the statute. or not to in

It was moved to arrest the judgment, because, 1st, the oath ought to have been set forth in such a manner that the prisoner might know what he was to defend himself against. 2. That such an indictment would be bad at common law, and that though the 4th clanse has dispensed with the words, the purport must still be set forth. 3. That at all events the other counts

pose, or to

form or give evidence

against any associate, &c. And by s. 4, it

shall not be ne

cessary in an indictment for any such offence to set forth the words of the oath, but it shall be sufficient to set forth the parport of it, or some material part thereof; held, that an indictment charging that the defendants administered to J. H. an oath intended to bind him not to inform or give evidence against any member of a certain society formed to disturb the public peace, for any act or expression of his or theirs, &c. is good, without alleging the tenor or purport of the oath to be set forth, and without shewing in what manner the public peace was meant to be disturbed by such society.

[blocks in formation]

1805.

Erskine, contrà (with whom were Garrow, Yates, Fer

The KING Cusson, and Hardy.) All the policy and convenience of the law, the certainty of justice, and the weight of precedents,

against NIFLD

and Others.

Where the witDess swearing to the words

spken by way of oath by the prisoner when he administered the same, said, that he held a paper in his hand at the same time when he administered the oath, from which it was supposed, that he read the words; yet held that parol evidence of what he in fact said was sufficient, without giving him nofice to produce such paper. Vide Jacob v. Lindsey, I

East, 460.

(besidss the 4th and 8th) were too general, in merely stating the object of the oath to be (in some) "to engage the party taking it in seditious purposes, and to disturb the public peace;" (and in others) to be of a certain association of persons, the same being an association formed to disturb the peace;" without stating what the seditious purposes were, or in what manner the peace was to be broken; there being the same reason for setting out the same as in an indictment for obtaining money by false pretences, where the false pretences used must be set out Rex v. Lloyd (a). 4th, That in no count of the indict ment is any oath or the purport of any oath seth forth, as required by the act: Ah, That there is no venue laid as to the association or society mentioned in the indictment.

Lord ALVANLEY was of opinion at the trial, that the statute created two offences, or rather two branches of the same offence; that of admintstering or assisting in administering an oath or engagement, which was by the parties administering the same intended to bind the party taking it to certain acts, whether it did or did not upon the face of it purport so to do; for the oath or engagement might purport nothing; as if it were "I swear," or "I swear to be true;" and therefore that the act intended that it should be sufficient to allege and prove what the object of the oath and engagement was, without stating any words at all; and that the offence being described in the words of the act was well described. But that supposing the objection made to the generality of the counts was good, which he did not admit, yet that in the 4th and 8th counts a material part of the oath or engagement was set forth according to the 4th clause of the act. His Lordship therefore gave judgment of transportation, but reserved the execution of the sentence till he had con sulted the Judges. Some other questions arose on this and other trials against some of the defendants for other similar offences, which were reserved for the consideration of the Judges at the same time. In one of the cases two witnesses swore to some words by way of oath, spoken by the prisoner, who held a paper in his hand while he uttered them; and it was insisted that no parol evidence could be given of what he said, because notice was not given to produce that paper from which it was supposed he had read them, though the witnesses did not see the words contained in the paper which he had in bis hands. Lord Alvanley was of opinion that no such notice was necessary, and admitted the evidence. This was the only trial in which the paper con taining the oath was not produced. The following is a copy of the oath pro duced on the trial of Moors and Moseley: "In the awful presence of God, IA. B. voluntarily vow and declare, that I will persevere in endeavouring to form a brotherhood of affection among Englishmen of every religious com munity, and I will also persevere in my endeavours to obtain an equal, full, and adequate representation of all the people of England. Likewise I do vow and declare, that neither hopes nor fears, rewards nor punishments, shall ever induce me directly or indirectly to inform or give evidence against any of this society, for any act or expression of his or theirs done or made collectively or individually in or out of this or other similar societies, in pursuance of the spirit of this obligation." An objection was made at the trial to the admission of any parol evidence to shew the real object of the oath; which, it was said, must speak for itself: aud that inasmuch as no seditious purpose appeared upon the face of it, no parol evidence could be given to shew that the brotherhood mentioned in it was of a seditious uature. But his Lordship was of opinion that declarations made at the time by the party administering such an oath were admissible to prove the real object of it.

(a) 2 East's P. C. 1122.

Where the oath on the face of it did not purport to be for a seditions purpose, yet held that evidence might be given to shew that the brotherhood therein referred to was a seditious

society.

1805.

The KING against NIELD and Others.

cedents, with the exception of the case last mentioned, are against this general form of conviction; and the only argu ment in favour of it is by imagining extreme cases, where it might be difficult to frame a sufficient statement of an offence consisting of a variety of acts; but that difficulty, which can in every case be surmounted by pains and dili- *[422] gence, is no reason for breaking in upon a wholesome rule of law, which is even more necessary to be observed in convictions before inferior magistrates, than in indictments before the higher tribunals; namely, that every indictment or conviction should contain a charge of the offence with such certainty as that the Court may see that the offender is plainly brought within the law which he is alleged to have broken; so that an innocent person may not be condemned upon a misconstruction of the law, by an inferior tribunal, without any means of redress. The difficulties suggested would have applied as well to the case of a threatening letter; for that might require extrinsic averments, in order to bring it within the statute, e. g. a letter may only contain an intimation to the party, that if he did not do a certain thing which had been communicated to him before, the writer would do that which he had stated upon some former occasion, or which was to be found in such a page of such a book. Yet it cannot be doubted, that if the threat so conveyed were capable of being shewn by proper aver ments to be a threat of the kind prohibited by the statute 9 Geo. 1, c. 22, the case would fall within it. And in Rex v. Lloyd (a) it was said, that the indictment ought to set forth the letter itself, in order that it might appear to the Court to be a threatening letter within the act; otherwise it would be leaving to the prosecutor to put his own interpretation upon the letter, and to the jury the matter of law. And this rule is not confined to written instruments only, as in the cases of threatening letters and forgeries, but is also required in indictments on the stat. 30 Geo. 2, c. 24, for obtaining money by false pretences (b). So here, if the agreement be not stated, it will be leaving to the magistrates

In Michaelmas term, 1801, the Judges, without giving any opinion against the other counts, all agreed that at any rate the 4th and 8th counts were good; and that the other objections made at the trial were properly overruled.

(a) a East's P. C. 1122,

(b) Rex. Mason, 2 Term Rep. 58.
Y 3
below,

[423]

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