These statutes, in cases of coining, robbery, burglary, housebreaking, and horse-stealing (o), enact, that if an offender being out of prison shall discover two or more persons who have committed the like offences, he shall be entitled to a pardon of the offences respectively specified in those statutes (p). These statutes, and also others which protect an offending party who discovers another offender, seem to make the latter a competent witness by legislative declaration; for if he were not to be a competent witness, the provisions of the statutes would be almost nugatory and useless; it would be holding out an inducement to offenders to make a discovery, and when made, they would be precluded from the benefit of it (q). In present practice, where accomplices make a full and fair confession of the whole truth, and are in consequence admitted to give evidence for the crown, if they afterwards give their testimony fairly and openly, although they are not of right entitled to pardon, the usage, lenity, and practice of the court is to stay the prosecution against them; and they have an equitable title to a recommendation to the king's mercy (r). Under such circumstances, there can be no doubt, as to the competency of the accomplice, upon any principle; the condition is not that he shall convict, nor even that he shall give evidence unfavourable to any prisoner, but that he shall make a fair disclosure of what he knows. The credit to be given to such a witness is for the consideration of the jury: the acknowledged turpitude of the witness must necessarily stamp his testimony with suspicion; and it is to be the more carefully watched, since such a witness lies under a strong temptation to substantiate the account which he has already given, in the hopes of pardon, and is likely to suppose that his object will be gained by a conviction, and may be frustrated by an acquittal. No accomplice can be examined against his consent, for he is not bound to criminate himself. Where he is willing to give evidence, it seems to be the more proper course not to include him in the indictment (s). The practice is (where the accomplice is in custody), for the counsel for the prosecution to move that the accomplice be allowed to go before the grand jury, pledging his own opinion, after a perusal of the facts of the case, that his testimony is essential (t). The admission of the party as a witness, amounts to a promise (0) Robbery, 4 W. & M. c. 8, s. 7. Coining, 6 & 7 W. 3, c. 17, s. 12. Burglary, housebreaking, and private stealing, 10 W. 3, c. 23, s. 5; repealed by the 7 & 8 Geo. 4, c. 27. 5 Ann. c. 31, s. 4. Uttering counterfeit money, 15 Geo. 2, c. 28, s. 28, which extends to such offences only. Illegally buying or receiving stolen lead, iron, or other metals, 29 Geo. 2, c. 30; repealed by the st. 7 & 8 Geo. 4, c. 27. (p) See 4 Comm. 330, 331. (q) See Lord Ellenborough's observations in Heward v. Shipley, 4 East, 180; Bush v. Rawling, Say. 289; R. v. Rockwood, 4 St. Tr. 684-6; R. v. Teasdale, 3 Esp. 68; Mead v. Robinson, Willes, 422; where it was held, that the legislature, by holding out inducements, and offering an indemnity, intended to make the discoverers legal witnesses. And Philips v. Fowler, 8 Geo. 2, cited Willes, 425; R. v. Luckup, 9 Geo. 2, B. R. MSS. cited Willes, 425, in the note; where, in a prosecution for penalties under the stat. 9 Ann. c. 14, s. 9, the loser of money at cards was held to be a good witness to prove the loss. So in R. v. Johnson, cited ibid. See INTERESTED WITNESS. (r) R. v. Rudd, Leach, C. C. L. 140, per Lord Mansfield, Cowp. 339. And see R. v. Lee, 1 Russ. & R. 261. (8) 1 Hale, 305. Lord Hale there says, the witness is never indicted, because that weakens and disparages his testimony, but possibly does not wholly take away his testimony. See 2 Hale, 234. It is said that if a defendant accuse himself, he may be a witness against his companion. See Sir Percy Cresby's Case, 19 J. 1. Noy's Rep. 154. (t) If, however, an accomplice be taken before the grand jury by means of a surreptitious order, the indictment will still be valid. R. v. Dodd, Leach, C. C. L. 184. And it seems to be a general rule, that the means by which evidence was obtained will be no objection to the evidence itself. A justice of the peace has no authority to of recommendation to mercy, upon condition of his making a full and fair disclosure of all the circumstances of the crime. dicted with others. An accomplice, as it seems, is a competent witness, and may be examined, When inif he be willing, although he is indicted along with others, provided he be not put upon his trial at the same time with the others (u); for an indictment against several, is several as to each; so he is if he has pleaded guilty, or been separately convicted, provided judgment has not been pronounced upon him for an offence which disqualifies him (x). So an accomplice is a competent witness for his associates, as well as against them, although they be severally indicted for the same offence (y), whether he is convicted or not, provided he be not disqualified by a judgment. By a breach of the condition the accomplice forfeits his claim to favour, and is liable to be tried and convicted (z) upon his confession. Where there is no evidence, or but slight evidence, against one of the parties upon his trial, the court will sometimes direct the jury to give their verdict as to him, and upon their acquittal of him to admit his testimony (a). With respect to the force and effect of such testimony, it must, from its very nature, be regarded with great jealousy and suspicion. It is hard (Lord Hale observed) (b) to take away the life of any person upon the evidence of a particeps criminis, unless there be very considerable circumstances which may give the greater credit to what he swears. In strictness of law, indeed, a prisoner may be convicted on the testimony of a single accomplice (c); since, where competent evidence is adduced, it is for the jury to determine on the effect of that evidence. In practice it is usual to direct the jury to acquit the prisoner, where the evidence of an accomplice stands uncorroborated in material circumstances; but this it is said is a matter resting entirely in the discretion of the court (d). pardon an offender, and to tell him he shall be a witness at all events against others. R. v. Rudd, Leach, C. C. L. 140; Cowp. 331. (u) Qu. and see 1 Hale, 305, supra note (8). See also R. v. Ellis, Macnall.53. (x) Lee v. Gansel, Cowp. 1. (y) 2 Hale, 280, cites the case of Billmore, Gray and Harbin, and Gunston v. Downs, 2 R. A. 685, pl. 3. That is, as it seems, where they are severally tried for an offence several in its nature; for in such case it seems to make no difference whether they are severally or jointly indicted. (z) In a late instance, a prisoner who had made a confession, after a representation made to him by a constable in the gaol, that his accomplices had been taken into custody, which was not the fact, and who, after having been admitted as a witness against his associates on a charge of maliciously killing sheep, upon the trial denied all knowledge of the subject, was afterwards tried and convicted upon his confession. R. v. Burley, cor. Garrow, B. Leicester Lent Assizes 1818. And the conviction was afterwards approved by all the Judges. MSS. C. (a) 1 Sid. 237; Trials per Pais, 148. Style, 401. 12 Ass. 12. 34. 2 Haw. c. 46, s. 98; Sav. 34. (b) 1 Hale, P. C. 305. (c) R. v. Atwood, Leach, C. C. L. 521. R. v. Durham & Crowder, Leach, C. C. L. (d) It seems to be clearly settled, that Force of such testi mony. Hale) proved aliunde, which coincide with his testimony, and add credit to it. For coincidences in testimony and circumstances, when they consist in particulars which were beyond the reach of premeditation, may not only sanction but compel belief in the particular statement made by the worst of men. But then the question arises, is any distinction to be made as to the nature of the circumstances in respect of which confirmation is required-is it sufficient that the accomplice be confirmed simply as to the corpus delicti, or are some confirmatory circumstances essential as to the identity of the offender? The object of requiring confirmatory evidence must either be to create such a degree of confidence in the sincerity of the accomplice as to render him generally credible even as to statements in respect of which he is not confirmed, or to exclude the probability of his attempting to deceive in the particular transaction which he details. If the latter be the true principle, some confirmation as to the agency of the accused should seem to be essential; for where there are no circumstances independently of the testimony of the accomplice to implicate the accused, the conviction must necessarily rest on the credibility of the witness. From the language of the Judges on the subject, and particularly that of Thomson, L. C. B. (in the case of R. v. Swallow, cited below), it should seem that confirmation as to the circumstances of the offence without any as to the identity of the offender is sufficient, provided of course the jury be induced to give credit to such a witness. The same inference may it seems be drawn from those cases where it has been held, that where several are jointly tried, and there is confirmation only as to some, others may be convicted as to whom there is no confirmation. See R. v. Jones, 2 Camp. 133, cited below, and R. v. Dawber, 3 Starkie's C. 34, and the point is stated to have been expressly decided by the Judges in Birkett's Case, Russ. & Ry. C. C. L. 252. It must be admitted, that even assuming that it is sufficient to confirm by circumstances the general credibility of the accomplice, yet that mere confirmation as to the circumstances of the offence, although it may show the accuracy of the accomplice's recollection, usually affords a very imperfect test of his sincerity. The ordinary motive to deceive, by which an accomplice would be influenced, is the hope of saving himself, and, it may be, a friend who participated in the offence, by the conviction of an innocent person; and the temptation is to misrepresent not as to the circumstances of the offence, but merely as to the agents who committed it. As it is his obvious interest to acquire the confidence of the jury, it is plain that the mere accuracy of his details of the corpus delicti can seldom generate any reasonable degree of confidence in his general since rity. On the other hand, whatever be the rule of law on the subject, it seems that such circumstances as tend to implicate the accused, independently of the testimony of the accomplice, are of far greater weight than those which merely confirm him as to the details of the offence, whether the object be to confer general credibility or to exclude the apprehension of deceit in the particular case. If distinct proof were to be given aliunde, that the offence had been committed by two persons at the least, even this would effectually exclude a suspicion which might otherwise obtain, viz. that the witness sought to secure impunity to himself by imputing guilt exclusively his own to another; still a doubt might remain whether to save a guilty friend he did not in his statement substitute an innocent party; and it would be difficult to extract such a degree of confidence from his mere detail of the res gestæ, however accurate, as would warrant belief in his mere unconfirmed statement, though such an apprehension might to a great extent, or even entirely, be removed by circumstances which affected the prisoner personally. It would be easy for an accomplice to convict an innocent substitute for a guilty party, were no evidence requisite to connect the latter personally with the offence, but exceedingly difficult to do so were his powers of effecting mischief to be limited to those against whom circumstantial evidence existed, independently of his testimony and beyond the reach of his artifices. It may be said, that if personal confirmation were essential, and several prisoners were tried at the same time, as to some of whom there was personal confirmation, but not as to the rest, the jury would be bound to acquit the latter, though they convicted the rest, and that it would be inconsistent that on the testimony of the same witness they should believe him as to part and not as to the rest of his story. The answer, however, is obvious, that if the rule be regarded, as it must be, a technical and artificial one, to be applied in protection of a prisoner even though the jury should think the witness faith-worthy, there would be no inconsistency in convicting A. as to whom there was personal confirmation, and acquitting B. as to whom there was none; the inconsistency would not be greater than if both A. and B. were to be acquitted, though the jury believed the witness, because there was no confirmation as to either. Indeed a greater degree of inconsistency might result from the opposite doctrine. For personal confirmation being unnecessary, if A. and B. were to be tried together, and there were confirmation as to A. but none of any kind as to B., the latter might nevertheless be convicted if the witness were confirmed as to A. and derived credit from such confirmation; and yet if they were to be tried separately, then, notwithstanding the faith-worthiness of the witness, yet, if there were no confirmation the jury ought to acquit B.; so that B. might be liable to be convicted or acquitted accordingly as he was tried jointly with A. or separately. It is also observable, that if mere confirmation as to the facts immediately connected with the commission of the crime were sufficient, the rule would be of little importance, for it rarely happens that there is not some confirmation as to the corpus delicti. The following are the principal authorities on the subject.-In the case of Atwood v. Robins, cor. Buller, Leach, C. C. L. 521, 3d edit., the accomplice was confirmed as to the circumstances of a highway robbery, as to the conversation which took place at the time, and as to the number of robbers, but there was no evidence as to the identity of the other two. The jury having found the prisoners guilty, the learned Judge referred the question to the consideration of the twelve Judges, on the doubt whether the evidence of an accomplice, unconfirmed by any other evidence that could materially affect the case, was sufficient to warrant a conviction, and the Judges unanimously held, that the conviction was legal, and sentence of death was passed. It is remarkable, that in this case the Judges, at least the learned Judge who tried the prisoners, did not conceive the confirmation as to the corpus delicti to be that which could materially affect the case. In the subsequent case of Durham & Crowder, Leach's C. C. L. 538. 3d ed. which occurred very soon afterwards, it was held that the prisoners were properly convicted of a burglary on the sole testimony (as far as regarded the prisoners personally) of a pawnbroker, who had for years been a common receiver of stolen goods. The court seem in this case, as well as the former, to have decided on the ground that no confirmation as to the prisoners was necessary, and that the evidence of an accomplice might be left to a jury, though it was entirely unsubstantiated by any other evidence. It was, however, observed, that Fleming the witness, was to be considered as an accessory after the fact, rather than as an accomplice. If the opinion of the Judges in this case is to be considered as founded on the assumption that Fleming was to be regarded as an accomplice, the decision seems to go the full length of wholly dispensing with the necessity for confirmation, even as a discretionary rule, for there was no confirmation whatsoever of the witness as far as appears, not even as to the corpus delicti: and though it is reported to have been said in that case, that the practice of rejecting an unsupported accomplice was rather a matter of discretion with the court than a rule of law, yet it is difficult to understand how it can be looked upon as any rule at all, if it may be utterly dispensed with and disregarded. In other instances, some confirmation of the testimony of an accomplice has been admitted to be necessary. In the case of the King v. Despard, Howell's St. Tr. vol. 28, p. 346, the Attorney-general (Mr. Perceval) says, "It shall not be contended by us that an accomplice does not require to be confirmed by collateral testimony, before a jury should implicitly give him credit." And he adds, "The confirmation that is required for an accomplice, is to show that the story as related by him coincides with other circumstances which are by unexceptionable testimony proved to have existed, and where such circumstances falling in with the testimony of the accomplice cannot so easily be accounted for by any other supposition than that of the truth of the story." In the case of The King v. Jones, 2 Camp. 132, Lord Ellenborough says, "No one can seriously doubt that a conviction is legal, though it proceed on the evidence of an approver only. Judges in their discretion will advise a jury not to believe an accomplice unless he is confirmed, or only in as far as he is confirmed; but if he is believed, his testimony is unquestionably sufficient to establish the fact which he deposed." In the case of The King v. Swallow and others, York Trials, 1813, p. 16, Mr. Baron Thomson stated to the jury as follows:"If an accomplice is materially confirmed in his evidence by such testimony as the jury think is unimpeachable, then, notwithstanding the character in which he stands before them, he is to be heard and to be credited by them. And you were rightly also informed, that it was not necessary an accomplice should be confirmed in every circumstance he details in evidence that would be almost a matter of impossibility; and if every circumstance to which he has spoken could be confirmed by other evidence, there would hardly be occasion to take the accomplice from the bar as a prisoner to make him a witness here: that is certainly too much to be expected, and never is required. It is quite sufficient to see that in some material facts the witness who shall have been an accomplice, is confirmed to the satisfaction of a jury; and that confirmation need not be of circumstances which go to prove that he speaks truth with respect to all the prisoners, and with respect to the share they have each taken in the transaction; for if the jury are satisfied that he speaks truth in those parts in which they see unimpeachable evidence brought to confirm him, that is a ground for them to believe that he speaks also truly with regard to the other prisoners as to whom there may be no confirmation." In the case of Birkett and Brady, Russ. & Ry. 251, it is stated that the Judges were of opinion, that an accomplice did not require confirmation as to the person he charged, if he was confirmed as to the particulars of his story. Must be pleaded. ACCORD. AN Accord and Satisfaction, before the late alterations in the rules of pleading, was evidence in an action upon the case, under the general issue (p); but in an action of trespass a special plea was necessary, as it now is generally. An accord must be shown to have been received in full satisfaction of the thing demanded (q); and although the plaintiff has agreed to take it in satisfaction, it will not be a bar to the action, unless it operate in satisfaction (r). A less sum cannot operate in satisfaction of a greater (s); but it is otherwise where an additional security is given for the payment of a less sum by a third person (t). So if a debtor assign over all his effects to a trustee, to raise a fund for the payment of a composition to his creditors (u), the general rule is, that the court will see that there has been a reasonable satisfaction (v). As accord and satisfaction must be specially pleaded, the evidence must of course depend upon the nature of the plea, and the issue taken. When the accord has been proved by means of a witness, or by the admission of the other party, the performance of the terms accordingly must also be proved where it is executory in its nature. After evidence of an agreement between the plaintiff and defendant, with other creditors of the defendant, to accept a composition in satisfaction of their respective debts, to be paid within a reasonable time, it would not be sufficient to prove a tender, and a refusal on the part of the plaintiff to accept the composition (x). If So it has been held, that if an accomplice be confirmed as to one or more of several prisoners, another as to whom there is no confirmation may legally be convicted on his testimony. Thus in R. v. Jones, 2 Camp. 133, Lord Ellenborough observes, "Within a few years a case was referred to the twelve Judges, where four men were convicted of burglary on the evidence of an accomplice who received no confirmation concerning any of the facts which proved the criminality of one of the prisoners; but the Judges were unanimously of opinion that the conviction was legal, and upon that opinion they all suffered the sentence of the law." The same was ruled by Bayley, J. in the case of The King v. Dauber, 3 Starkie's C. 34. In the late case of R. v. Wells and others, 1 Mood & M. C. 326, on an indictment against a principal and accessories, the testimony of an accomplice was confirmed as to the accessories, but not as to the principal, and it was held that both principal and accessories ought to be acquitted. For further observations on this important subject, the reader is referred to a very able essay, written by a gentleman of the Irish bar, intituled, "Observations on the Confirmation of the Testimony of Accomplices;" the object of which is to show, that in principle some confirmation as to the personal identity of the prisoner is necessary to warrant a conviction. (p) Huxham v. Smith, 2 Camp. 19. Lane v. Applegate, 1 Starkie's Č. 97. Paramore v. Johnson, 1 Lord Raym. 566; 12 Mod. 376. It is always a good plea where the action is founded on a covenant, with subsequent damages, secus where the debt arises tempore confectionis scripti. Blake's Case, 6 Co. 44. Accord and satisfaction by one, is a bar for all; Com. Dig. ACCORD, [A.] 1. (q) See Com. Dig. ACCORD, [B.] 1. (r) See Edgcombe v. Rodd, 5 East, 294, as to what amounts to a legal satisfaction; and Com. Dig. ACCORD, [B.] 1. A judgment without satisfaction is no payment, Tarleton v. Allhusen, 2 Ad. & Ell. 32. An executory agreement may after breach, be discharged by accord and satisfaction, B. N. P. 152; or by a valid agreement, substituting a new cause of action for the old, Case v. Barker; T. Ray. 450. (s) Fitch v. Sutton, 5 East, 230. Lynn v. Bruce, 2 H. B. 317. Heathcote v. Cruickshanks, 2 T. R. 24. Vid. infra, note (x). 24. (t) Steinman v. Magnus, 11 East, 390. (u) Heathcote v. Cruickshanks, 2 T. R. (v) Cumber v. Wane, Str. 426. Pinnel's Case, 5 Rep. 117. Co. Lit. 112. b. Vid. infra, note (x). (x) Heathcote v. Cruickshanks, 2 T. R. 24. This was on demurrer to a plea. Where there is an agreement to pay money in satisfaction, it is not enough to show that he has always been ready to pay it, or a tender and refusal. Com. Dig. AcCORD, [B] 4. Peyton's Case, 9 Rep. 79. b. But in Bradley v.Gregory, 2 Camp. 383, it was held that a creditor who had agreed with other creditors to execute a composition deed, with a release, on receiv |