Plea of tained by mere computation, or are admitted by the defendant on whom the proof of the issue lies, he is entitled to begin (d). A plea in abatement, that the defendant made the promise jointly with nonjoinder. another, is supported by evidence that the defendant made the promise jointly with an infant; for the plaintiff ought to plead and prove that the infant has avoided his promise (e). Upon a plea that A. and B., assignees of C., a bankrupt, ought to have been joined, it is not sufficient for the defendant to prove that they have acted as assignees; he must prove that they were so, either by the production of the assignment, or by proving an admission by the plaintiff to that effect (f). A bill delivered by the plaintiff for business done for the insured, the defendant being one, in which he debits the defendant with three-sevenths only of the whole amount, is primâ facie evidence (the defendant having pleaded in abatement) that the action was brought to recover his share only (g). If the plaintiff contract with the defendant alone, without knowing that he has other partners, proof by the defendant, upon a plea in abatement for non-joinder, that he had secret partners, would not be a sufficient defence in support of the plea (h). Any acts by the defendant, tending to show that he treated the contract as several, not joint, are evidence for the plaintiff. Where the defendant had written letters to the plaintiff, promising to pay the money in question, and without making mention of any partners, Lord Ellenborough, upon issue to bar on a plea of non-joinder, held that the evidence was conclusive as to separate liability (i.) One signing an instrument in his own name for others may frequently be sued alone, although the others may also be liable (k). The plaintiff may, on motion, compel the (d) Lacon v. Higgins, 3 Starkie's C. 178. (f) Pasmore v. Bousfield, 1 Starkie's C. 296. Robinson v. Henshaw, 4 M. & S. 475. (g) 1 Starkie's C. 296. (h) Doov. Chippenden, cor. Ld. Kenyon, Ch. J. at Westmr. sittings after Hil. T. 1790, upon a plea in abatement cited in Mr. Abbott's treatise, 92. Baldney v. Ritchie, 1 Starkie's C. 338. See tit. PARTNERSHIP, infra. If a party contract with two, he may sue them only if after the contract is made he discovers that they had a secret partner who had an interest in the contract, he is at liberty to sue the latter jointly with them, but he is not bound to do so. De Mautort v. Saunders, 1 B. & A. 398, overruling Dubois v. Ludert, 5 Taunt. 609. And see Mullett v. Hook, 1 M. & M. C. 88. And see tit. PARTNERSHIP. On a plea in abatement in an action for work and labour, of the non-joinder of eighteen others, members of a joint company, Abbott, L. C. J. held that declarations by one of the eighteen, before action brought, that he was a shareholder, was evidence of the fact for the defendant, Clay v. Langslow, 1 M. & M. 45; tamen quære. (i) Murray v. Somerville, 3 Camp. 99. n. (k) See tit. AGENT.-BILL OF ExCHANGE. A promissory note, beginning" I promise to pay," was signed by a member of a firm for himself and his partners, and it was held that he was liable to be sued severally. Hall v. Smith, 1 B. & C. 407; March v. Ward, Peake's C. 130; Clarke v. Blackestock, Holt's C. 474; Sayer v. Chaytor, 1 Lutw. 696. By the statute 3 & 4 Wm. 4, c. 42, s. 9, to any plea in abatement in any court of law, of the non-joinder of another person, the plaintiff may reply that such person has been discharged by bankruptcy and certificate, or under an act for the relief of insolvent debtors. And by section 10, in all cases where after such plea in abatement, the plaintiff shall, without proceeding to trial upon an issue thereon, commence another action against the defendant or defendants in the action in which such plea in abatement shall have been pleaded, and the person or persons named in such plea in abatement as joint contractors, if it shall appear by the pleadings in such subsequent action, or on the evidence at the trial thereof, that all the original defendants were liable, but that one or more of the persons named in such plea in abatement, or any subsequent plea in abatement, are not liable as a contracting party or parties, the plaintiff shall nevertheless be entitled to judgment, or to a verdict and judgment, as the case may be, against the other defendant or defendants who shall appear to be liable; and every defendant who is not so liable shall have judgment, and shall be entitled to his costs against the defendant or defendants who shall have so pleaded in abatement the non-joinder of such person; provided that any defendant who shall have so pleaded in abatement, shall be at liberty on the trial to adduce evidence of the liability of the defendants named by him in such plea in abatement (7). Damages. The plaintiff must be prepared to prove his damages (m). Where a peer is named as a commoner, he may plead his misnomer in Misnomer. abatement, since the title is part of his name, and he ought to be tried by his peers only (n); but he ought to set forth the writ, &c. upon the plea, because it is but a dilatory plea, and must be tried not by the country but by the record. But a plea that the defendant is a peeress by marriage must be tried by the country, since it involves a question of fact extrinsic of the record (o). Upon a plea of peerage under letters patent, they must be produced under the great seal (p). In Knowles's Case, upon an indictment for murder, the defendant pleaded that his grandfather was created Earl of Banbury by letters patent under the great seal of England, which he produced in court; the Attorney-general replied, that on, &c. the defendant petitioned the Lords in Parliament to be tried by his peers, and that the Lords disallowed his claim; the defendant demurred, and the demurrer was allowed, on the ground that the refusal of the Lords could not operate as a judgment (q). If the defendant in a criminal proceeding plead a misnomer, the King may reply that he is known by the one name as well as the other (r); but in an appeal such a replication was not allowed (s). Upon a plea of misnomer, where the defendant avers that he was baptized (1) See Clay v. Langslow, 1 M. & M. C. 45, supra. (m) Weleker v. Le Pelletier, otherwise the plaintiff will be entitled to nominal damages only. (n) i. e. In case of Treason or Felony, 2 Hale, 240. 6 Co. 53. Countess of Rutland's Case, 35 H. 6, 46. (0) 6 Co. 53. 2 Hale, 240. See Star kie's Crim. Pl. 295. (p) 2 Salk. 509. (q) R. v. Graham, 4 St. Tr. 410. See the Earl of Strathmore v. the Countess of (r) 2 Hale, 238. By the statute 7 G. 4, (8) 1 H. 7, 29. 21 Ed. 3, 47. 2 Hale, 238. Competency. Principal in the first degree. by the name of A. B., he must give proof of such baptism, although he was not bound so to allege it; and it is not sufficient to shew that he has always been called and known by that name (t). A defendant in either a criminal or civil proceeding will in general ¡be concluded in a new action, or upon a fresh indictment, as to the name or addition which he has set forth in his former plea (u). If in assumpsit the defendent plead in abatement that the promise was made jointly with E. F., the latter will be a competent witness for the plaintiff; for if the plaintiff were to succeed, although the record would prevent the plaintiff from recovering a second time in a joint action, the witness would still be liable to an action at the suit of the defendant for contribution (r); for the record would not be evidence against the latter; and if the plaintiff were to fail, the witness, if a partner, would still be liable to be sued by the plaintiff in an action against himself and the former defendant, and would be ultimately liable to pay his own share. The witness, if he be a partner, is at all events liable to pay his own proportion of the debt (y). It seems, however, that E. F. would not have been a competent witness for the defendant, in order to prove that he was a joint contractor, without a release (z), where he would be liable to contribute towards the costs of the action in case the defendant failed. But a release from the defendant would at all events make him competent, for then he would not be liable to contribution; and it would be his interest that the plaintiff should recover against the defendant alone, rather than that he should fail, in which case he might still bring a joint action. The defendant, upon an indictment for perjury, may prove in bar that the action in which the evidence was given, on which the purjury is assigned, had abated before the trial of such action, by the death of a co-plaintiff after issue joined, no suggestion having been entered on the record pursuant to the statute 8 & 9 W. 3, c. 11, s. 6 (a). ABUTTALS. See TRESPASS. ACCEPTANCE. See BILL OF EXCHANGE. ACCESS. See BASTARDY. ACCESSORY. It will be convenient here to consider the evidence applicable to both principals and accessories Principals, in cases of felony, are of two degrees. A principal in the first degree is the absolute perpetrator of the crime, and is either actually present when it is perpetrated, or commits it whilst absent by an innocent agent or instrument (b). A principal in the second degree is (t) Weleker v. Le Pelletier, 1 Camp. 479. See Com. Dig. ABATEMENT, [F] 17. Walden v. Holman, 6 Mod. 115; 1 Salk. 6. (u) 2 Hale, 248. See Crim. Pleadings, 2 Ed. 313. A plea of misnomer is no longer allowed in a personal action. 3 & 4 W. 4, c. 42, s. 11; and see the provision, s. 12, as to the use of initials. (x) Lord Ellenborough seems to have been of opinion that in this event the witness would have been in a worse situation than he would have been in had the plaintiff failed, on account of his liability to contribute towards the costs of the former suit. (y) Hudson v. Robinson, 4 M. & S. 475; and see Cossham v. Goldney, 2 Starkie's C. 414. (2) Young v. Bairner, 1 Esp. C. 103; and see the observations of Lord Ellenborough, 4 M. & S. 480, and of Bayley, J. Ib. 484; and see Goodacre v. Breame, Peake's C. 174; and Birt v. Hood, 1 Esp. C. 20; and see also tit. INTEREST OF WITNESS, and PARTNER. (a) R. v. Cohen, 1 Starkie's C. 511. one who is present, aiding and abetting the fact to be done (c). An accessory before the fact is he, that being absent at the time of the felony committed, doth yet procure, counsel, or abet another to commit a felony (d). A man may therefore be convicted as a principal in the first degree, upon evidence that he committed the fact when absent, without the more immediate intervention of any guilty agent. As where A. persuades B. to drink poison, by recommending it as a medicine (e); or where he sends the poison by a third person, ignorant of its quality (ƒ); or incites a madman to destroy another; or a child to set fire to a house (g). To prove one to be principal in the Principalin second degree, it must be shown first, that he was present when the offence the second degree. was committed. But it is not necessary to shew that he was actually stand- Proof that ing by, within sight or hearing of the fact; it is sufficient if he was near he was enough to lend his assistance in any manner to the commission of the offence. present. As where one commits a robbery or murder, and another keeps watch or guard at some convenient distance (h). So if several set out together, or in small parties, upon one common design, whether of murder or felony, or for any other unlawful purpose, and each takes the part assigned to him, some to commit the fact, they are all, in contemplation of law, present when the fact is committed (i). So, if several come to commit a burglary, and some enter, and the rest watch, all are principals (k). So, where a constable's assistant attempted to apprehend a number of persons in a house, under a warrant for a riot and battery, and fourteen of the rioters issued from the house and killed the constable's assistant, it was held that those within the house, if they abetted and counselled the riot, were, in law, present, aiding and assisting, as well as those who issued out and actually committed the assault five roods from the house (1). And, in general, if a party be sufficiently near to encourage the principal in the first degree with the expectation of immediate help or assistance in the execution of felony, he is in point of law present. Lord Dacre and others (m) came to steal deer in the park of Mr. Pelham; Rayden, one of the company, killed the keeper in the park, the Lord Dacre and the rest of the company being in other parts of the park; and it was held that it was murder in them all, and they died for it. So if A. and B. be present, and consenting to a robbery or burglary, though though A. only actually commits the robbery, or actually breaks and enters the house, and B. be watching at another place near, or be about a robbery (c) Hale, P. C. 615. Formerly he who struck alone was principal, and those who were present, aiding and assisting, were accessories, who could not be convicted before the attainder of the principal; 1 Hale, P. C. 437. 40 Ass. 25. 40 E. 3. But it has been long settled, that all present, aiding and abetting, are principals; 1 Hale, P. C. 437. Plow. 97. Whether a person is guilty as a principal in the first or second degree, is a question of law, R. v. Royce, 2 Burr. 2076. If several persons combine to forge an instrument, and each separately executes a part, all are principals, though they are not together when the work is completed. R. v. Bingley and others, 1 Russ. & R. 446. (d) 1 Hale, P. C. 615. Lord Coke, in his reading on the Statute West. 1, c. 14, says, the word aid comprehends all persons counselling, abetting, plotting, assenting, consenting and encouraging to do the act, and who are not present when the act (e) 4 Co. 44. 2 Inst. 183. (f) 9 Co. 81. Kelynge, 52, 53. (i) Foster, 350. 353. 1 Haw. c. 38. (k) Foster, 350. 1 Hale, P. C. 439. hard by, which he effects not, both are robbers and burglars (n). Where Hyde and A., B., C. and D. rode out to rob, but at Hounslow D. parted from the company, and rode away to Colbrook, and A., B. and C. rode towards Egham, and about three miles from Hounslow, Hyde, A. and B. assaulted a man; but before he was robbed, C. seeing another man coming at a distance, before the assault, rode up to him about a bow-shot, or more, from the rest, intending either to rob him, or to prevent his coming to assist; and in his absence, Hyde, A. and B. robbed the first man of divers silk stockings, and then rode back to C., and they all went to London, and there divided the spoil; it was ruled (according to Lord Hale) upon good advice, first, that D. was not guilty of the robbery, though he rode out with them upon the same design, because he left them at Hounslow, and fell not in with them; it may be he repented of the design, at least he pursued it not. Secondly, that C., though he was not actually present at the robbery, nor at the assault, but rode back to secure his company, was guilty as well as Hyde and the two others (o). It is otherwise where the party is not sufficiently near to render assistance to the principal felons. Where three prisoners were charged with feloniously uttering a forged note, &c., and it appeared that one of the prisoners offered the note in payment at Gosport, the other prisoners being then waiting at Portsmouth for his return: the whole being in consequence of a previously concerted plan, the Judges (after conviction) held, that the two latter prisoners were entitled to their acquittal, since they were not present when the felony was committed (p). In the case of the King v. Stewart and Dickons (q), it appeared that the two prisoners had previously agreed to sell forged notes to James Platt, a witness upon the trial, and that the price had been paid. That after the witness had been at the house of the prisoners for the purpose of receiving the notes, Stewart and the witness went to a public-house, and that afterwards Dickons came and beckoned them out; Stewart then said to the witness, "You see Ann there, whom you have seen at our house; she will deliver the goods to you; I wish you good luck." Dickons, the woman pointed out by the prisoner Stewart, within three minutes afterwards delivered the forged notes to the witness, and the witness did not know whether the prisoners were or were not in sight when the notes were so delivered, nor which way they went. The jury found the prisoners guilty, and stated (the question being left to them by the learned Judge), that the delivery of the notes by Dickons was in completion of the agreement made by the prisoners, and on their account, and not her own. Execution was respited, in order that the opinion of the Judges might be taken upon the question; and all the Judges recommended that a pardon should be applied for in respect of the particular offence (r). (n) 1 Hale, P. C. 537 1 And. 116, &c.; differently reported, Fost. 354. See tit. BURGLARY.-RAPE. (0) 1 Hale, 537. (p) R. v. Soares, and two others, 2 East, P. C. 974; and see R. v. Badcock and others, 1 Russ. & R. 249; R. v. Kelly, Ib. 421; R. v. Morris, Ib. 270. In the case of R. v. Davis & Hall, 1 Russ. & R. 115, the two prisoners came to a town with intent to utter a forged note; they left the inn where they had put up together; Davis went into a shop and uttered the note, and Hall joined him near the place, about fifteen or twenty minutes afterwards. The jury found that Hall was at the time of the uttering sufficiently near and ready to render assistance, and found both guilty; but the Judges afterwards held the conviction of Hall to be improper. (q) Coram Garrow, B., Warwick Lent Assiz. 1818, and afterwards before the Judges, MSS. C. (r) See also R. v. Else, 1 R. & R. 142. |