« ForrigeFortsett »
v. Mackreth* the court, for the same cause, quashed the pleadings. This plea is verified by affidavit, but in Gray v. Sidnet, it is said there is no necessity for it; indeed, as it must appear upon oyer, it cannot be necessary, and, as there is no writ actually issues, it ought not to be marie."
The Court were strongly impressed with the effect of the cases, which took away the oyer of ihe writ, and said that/rom the cases in the Common Pleas, it seemed, that, at this day, they ought to discountenance such pleas wholly, and to let the plaintiff in to sign judgment.
The King against Stevens and Another.
Where a fixed fine, by statute, for a misdemeanor is miscalculated in, the verdict and the judgment, the court, upon a rule served an aS parties^ interested, will alter the rule for the judgment against the prisoner, and Ihe etilr:/ roll, as to so much of tlte iittntehmcnl, but they u ill not alter thejudgment andverdict,
J£N this case for the particulars of which see ante Vol.], p. 4.;7> the defendants being found guilty of a misdemeanor committed in the East Indies, in taking a bribe from one of the native princes, part of the penalty for which offence is the payment of the amount of the sum received, as a bribe, it appeared that, in drawing up the judgment, a mistake had been made, in calculating the value of the foreign coin, East India money, which constituted the bribe,
Dallas, therefore obtained a rule calling upon the prosecutors to shew cause why the rule made on Monday next, after three-Tveeksof the Holy Trinity, in the44tU year of his present majesty, and the entry roll in this prosecution, should not be amended by inserting after the
Vords, "and also" the words, "the sum of nine thousand isos. three hundred and eighty-five pounds part," upon no- ThelTiso tice of the rule to be given, to the attorney for the said twr«"» prosecutors in the mean time. This rule was obtained and Aiwthcn upon an affidavit of Mr. Dowse, attorney for the defendants, which stated, that the fifth count in theinformauon,.charges the defendants with having received from a certain person, called the Samount/ Rajah, 8.3,000 rupees, being of the value of 10/5261. of lawful money of Great Britain, a? a gift and present, against the form of the statute, &c; whereby they forfeited to our lord the king the said sum of 10,(i2il. being the value of the said rupees. That there was no evidence of the value of the rupees on the trial; that finding there had been a miscalculation of the value,the rupees being estimated at too high a value,beapplied to the solicitor for . N the East India Company, who wrote to him,that he had seen the attorney-general, who informed him, that if there was any mistake, it should be rectified ; and that having advised with counsel before the deftndants, were brought up for judgment, as to an application to the court to rectify such mistake, it was omitted to be made in consideration of such communication. That, on the morning when judgment was pronounced by the court, it was agreed between all parties, that the rupees should be considered of the value of 2s. 2|d. each, and at the time of pronouncing judgment, the attorney-general,from a paper in his hand, stated the said agreement of the parties, and that the value was !),385l. with a small fraction,and expressed his consent that the judgment should record the forfeiture at the sum so stated by him. Which was now made absolute by consent of all parties, und the rule and entry roll Has accordingly altered as follows:
Monday next, after three weeks of Easter, 44 Ceo. lit. Rex v. Stevens and another. The defendants 180g- being brought here into court, &c. and being by d Tii«Kiw« jury of the country, convicted of certain extortions ttnut j juisdemeanors charged upon them by the fifth.
Stephens or J *
mU Anudier. sixty-ninth, seventieth, and seventy-first counts of the information in this prosecution: Upon mature deliberation had here in court, it is considered and adjudged that the defendant, James Stevem for his offences aforesaid, do pay a fine to our sovereign lord the king of 5,OOOl. of lawful money of Great Britain. And that he the said James Stevens be imprisoned in the custody of the said marshal for the term of two years now next ensuing. And that the defendant John Agnes?, for his offence aforesaid, be imprisoned in the custody of the said marshal, for the term of two years nownextensuing. And, that the said defendants; for the extortions and misdemeanors charged upori them by the said 5th count, do forfeit to bur said lord the king, the sum of 10,6251. of Inwful money of Great Britain, being the full value of the gift and present received by thera as in the said fifth count mentioned. And they the said defendants are now recommitted to the custody of the said marshal, to be by him kept in safe custody in execution of the said judgment and until they shall have paid the said forfeiture. And the said James Stevens, until he shall have also paid the said fine. And it is ordered that the Whole of the said fine, and also [the sum of 9,3851. part)of the said forfeiture, be paid to the United Company of Merchants trading to the East Indies, being the prosecutors in this prosecution.
But By The Court, thejudgment itself cannot be altered.
Knight against Palmer. isos.
Attachment vflZ not lie against a witness served Kith a Subpoena duces duces tecum, if he do not produce a warrant described tlterein. Mew*. AttacUbecame lie says that he has not got in his custody; although in racut' truth it appear that he had it. This is properly matter for an indictment for perjury:
^SPtNASSE moved for an attachment against a wit- Kniob* ness for not obeying a subpazna duces tecum, and ■p^Zulu, I the following ground:
The defendant wassheriffof Essex'; tile action was for an excessive levy under a Ji. fa; and to prove the levy, the plaintiff called one Thorn as a witness, who ffasthe officer to whom the warrant was delivered; when called upon to produce it, he said, that he had it not; he had delivered it to one Reynolds to make a copy who had not returned it. Reynolds now said iri an affidavit that he had delivered it to Thorn's wife. Thorn said he had it not; and the present affidavit, as Espinasse stated it, went to shew that he had it.
By the Court. "If so he is guilty of perjury, but »n attachment cannot be granted if he had not brought
Rex against Fenwick.
ppw a habeas corpus on which the gaoler returns* a commitment, Apprentice.
*b. jsxxii. H. s. 9 B
vnnndcd the apprentice, altfuiugh it was sworn that be was bound Khen a minor, and that when- off all age he avoided his indentures. .if habeas corpus cannot be to discharge an apprentice tchen of age frowi indentures; exparte M Davis, 5 Term Hep. 715. contri. Semble, it should be tohriiig up the apprentice from some custody or improper eontroul over his person; as, perhaps, that of the master, if he detain him by force in his service. .
J^SPINASSE obtained a habeas corpus directed to the defendant to bring up one Gill, an apprentice, to be discharged out of custody, and to be discharged from his indentures. He produced an affidavit stating ineffect, that he was bound to one Garnsey, while underage for seven years; that in April 180G, he became of age and previously informed his master lhat when he was of age he should quit his service; that when he became of age he gave notice to his master,but said thathe would serve on a weekwith him or a fortnight, until he could get some journeyman in his place, unless he would give him wages; that his master then made no objection, and he left him on the day he told him that be should quit his service, whereupon the master complained to a magistrate, who committed him to prison under the statute, 20 Geo. II. c.ig, s. 4. Notice of the rule was served on the magistrate; and now the defendant the gaoler (or governor) of Tot/till Fields Bridewell, made a return containing the commitment as follows:
Whereas complaint hath been made before ui Aaron Graham and Edward Naish, esqrs. two of his majesty's justices of the peace, for the said city and liberty, upon oath of John Garnsey, that Samuel Gill, apprentice to the said John Garnsey, upon whose binding out no larger sum than five pounds was given, hath committed divers misdemeanours against the said John Garnsey his master, and in particular in having for several days absented himself from the ser\ice and employment of the said John Garnsey his