VOL. VI. Con. monwealth v. Putnam. CRIMES AGAINST THE STATE. volume, pages 129, 130, &c.; and the court cited the 12th article in said bill of Rights, which declares that no part of a man's property shall be taken from him, or applied to public uses, without his consent, or that of the representative body of the people :' omitting compensation provided for in Massachusetts constitution. ART. 9. § 4. The deft. was indicted for the crime of adultery, on Con. statute of 1784, ch. 40. He had been divorced for that 1 Pick. R. 136 crime, and married another wife in Connecticut, living the first, -140, Com- and cohabited with the second: not guilty of adultery, as the marriage in Connecticut was lawful. He should have been indicted on the second section of the said act. This case shows, that a man divorced for adultery, in Massachusetts, and who cannot there marry another, may lawfully marry another wife, in another State, and this marriage must be allowed to be legal in Massachusetts. ART. 11. Con. ART. 10. Adultery, in 1828, was punished as follows. In Maine, solitary imprisonment, not exceeding three months, and confinement to hard labor, not exceeding five years. Bigamy the same. In Vermont, State prison, not exceeding three years, and fine, not exceeding $1000, or either. Polygamy the same. In New Hampshire, common jail, not exceeding one year, by fine, not exceeding $400, and sureties of the peace, not exceeding five years, or by one or more of these punishments. Polygamy near the same. In Rhode Island, fine, not exceeding $200, and imprisonment not longer than six months. In Connecticut, man, in State prison, woman, in the common jail; not longer than five, nor less than two years. In Delaware, fine $100. § 1 con. And if one knowingly lease his house for prostitution, he may be indicted: 3 Pick. R. 26-31, Commonwealth v. Harrington and exciting, encouraging, and aiding one to commit a misdemeanor, is of itself a misdemeanor. The King v. Phillips, 6 East, 464, ch. 218, a. 2, s. 26. CHAPTER CXCIX. CRIMES AGAINST THE STATE. § 18. What is a case affecting public ministers or not. This was an indictment on the crimes' act of congress of April 30, 11 Wheat. 467 1790, for an infraction of the law of nations, by offering violence to the person of a foreign minister, and contrary to the said act. Verdict of guilty, in the circuit court. judgment, and assigned for cause, -475, U, States v. Ortega. Deft. moved in arrest of that the circuit court has not jurisdiction of the matter charged in the indictment, inas- VOL. VI. much as it is a case affecting an ambassador, or other public CH. 199. minister. The circuit judges were opposed. Held, that court Art. 10. had jurisdiction of the offence, and that it was not one affecting the minister he was no party; but the offence was against the United States, and the law of nations. CHAPTER CC. FELONY. Con. ART 1. Con. 5 Barn. & $13 con. Four persons were indicted for conspiracy; two pleaded not guilty; one in abatement to this plea there was a demurrer. The fourth did not appear. One who pleaded not, guilty, was acquitted, and the other was found guilty of con- Cres. 538. spiring with him who pleaded in abatement. Afterwards, the demurrer was argued, and judgment of respordeat ouster given; thereon, not guilty was pleaded. Held, the court might, before the trial of that deft., pronounce judgment on the one that had been found guilty. 1 Barn & Cres. 37-55, Cox v. Coleridge, &c., held, when a person is examined before a magistrate, under a charge of felony, he is not entitled, as of right, to have a person skilled in the law, present, as an advocate on his behalf, it being a preliminary investigation only, and not conclusive on him. It appears, the plt. was an attorney, and the felon engaged him to assist him before the two justices, (defts,) and they refused to admit the plt., and gently laid hands on him and turned him out of their room: therefore, he brought trespass: they justified: he replied specially his whole case they demurred to his replication: judgment for them on the principle above stated. 15. The People v. Schuyler, 6 Cowen, 572-575, held, it is felony for a man who elopes with another's wife, to take his goods, though with her consent, and at her solicitation. Decided on the conviction of grand larceny, October 1826, on cer- Russel on tiorari accompanied with a case. Crimes, 26, 27 $6. Mutiny and revolt. Though the Crimes act of con- ART. 7. gress of April 30, 1790, s. 12, does not define the offence of Con. endeavouring to make a revolt: it is competent for the court to 11 Wheat. 417 give a judicial definition of it: 2. The offence consists in the endeavour of the crew of the vessel, or any one or more of them, to overthrow the legal authority of the commander, with intent to remove him from the command, or, against his will, to take command of the vessel, by assuming the government or navigation of her, or by transferring their obedience from the lawful commander to some other person. 419, U. States v. Kelly & al. Smith v. Shaw, 12 $7. Martial law in New York. Citizen not in military service, is not amenable to a court martial. A citizen of the Johns. R. 257. VOL. IX. 80 VOL. VI. Art. 7. Diblee, 14 United State, is arrested as a spy, and held in custody till the fact can be tried by a court martial. The party arresting, and the commanding officer by whose order he is detained in custody, are trespassers. 19 do. 7. 8. The martial law is not altogether a written law, but is Schuneman v. composed, in part, of military usage, when it is reasonable, or not contrary to special enactment: 2. A soldier arrested and Johns. R. 235. imprisoned, may be held to perform such duty as he is capable of, while restrained, and may be compelled to perform by further restraint: 3. An officer, civil or military, may increase the rigor of confinement, to prevent escape. See ch. 186, a. 4, s. 13-19. ART. 5. CHAPTER CCI. CRIMES AGAINST PUBLIC POLITY, &c. § 16. 4 Bibb. 400. Where A is indicted for an assault and battery, and judgment is rendered thereon; and for the same an action is afterwards brought, evidence of the judgment on the indictment is inadmissible in mitigation of damages. Read v. Kelly. 17. If A be indicted or sued for wounding B, A cannot Ford v. Logan, justify in defence of the possession of his close. Though such 2 Marsh. 325. wounding cannot be justified, yet if the intruder in his attempt, assaults the possessor, or his family, the possessor resisting the attempt may wound the aggressor; but in such case, the plea must specially set out and rely on the assault, and not on the in 2 Marsh. 276. trusion. ART. 9. -418. CHAPTER CCII. BARRATRY. 13. 32 H. 8. ch. 9, is in force in Maryland, and has been practised upon. 4 Har. & McH. 503. J § 2. Champerty being an offence at common law, is to be presumed to be against the law of another State, the contrary not 1 Pick. R. 415 appearing. The plt., an attorney and counsellor, in Massachusetts, rendered services in New York, and entered into a written agreement in Massachusetts to receive ten per cent. for his services, on the sum that should be recovered. Held, a void agreement, but that the plt., Thurston, might recover on a quantum meruit for his services previous to the making of the agreement. Con. A claimed land as heir to his father, and, about to sue to re- VOL. VII cover it, agreed with the plt., his brother in law, and covenanted CH. 202. in consideration of the premises, &c. to convey to the plt. one Art. 9. fourth part of the property which should be recovered, and the plt. in consideration of such covenant, &c. promised A to pay, bear, and sustain, one half of all the expenses, which might Thalimer v. arise in the intended suits, &c. Held, illegal and champerty, Brincherhoff, and void under the first section of the act to punish champerty 20 Johns. R. and maintenance. Held, 2. The illegality of the agreement is a good defence for the deft. who, as attorney of A, had received a large sum of money on a compromise of the suits brought by A, in an action of assumpsit against the deft., to recover one fourth of the money: 3. To make such an agreement illegal and void for champerty, it is not necessary that the land be held adversely. See below. 386. But the act of Kentucky of 1798, as to champerty and maintenance, does not merely release the contracting parties from the fine, &c. imposed by prior laws, but makes the title valid and the conveyance effectual to pass the lands; and wherever the original title was derived from Virginia, the act operates, however numerous the conveyances may be between the patentee and the plt. Where a town was established before said act of Adridge v. 1798 took effect, the trustees of it were not invested with a legal Kinsaid, 2 title to lands held adversely, included in the town; and their Litt. 393. entry on the lots not so held, did not extend to those so held. Young v. Kimberland, 2 Litt. 225. Brincherhoff, The above cause, brought by error from the supreme court Thalimer, plt. to the court of errors; said judgment was unanimously reversed, in error, v. and held no champerty or maintenance, and the plt. entitled to deft. 3 Cowen, recover in assumpsit for money had and received, one fourth 623-651. part of the money obtained by compromises of the affair. Other points held: 1. Even now a part of a chose in action cannot be transferred: 2. There is no champerty if the party who aids in the suit has any kind of interest in the thing sued for not acquired by his bargain to maintain, or if he is any way connected with the suitor in some social manner or relation. It is enough though such interest, great or small, vested or contingent, certain or uncertain. So if there be consanguinity or affinity between the suitor and person aiding. So if there be the relation of landlord and tenant, master and servant; so acts of charity to the poor, or the exercise of the legal possession. In none of these cases is there maintenance. So a husband, whose wife may, by possibility, be heir of one who claims land, may maintain the suit of the claimant, brought to recover the land, on an agreement to have a part of it. In this case, the aider's wife was sister to the claimant, and might possibly be his VOL. VII. heir. Art. 9. 6 Cowen, 431433, Burt v. Place. 5 Pick. 348, Brinly v. Whiting. Cited, to prove no champerty or maintenance, 4 BI. Com. 134, 135; 2 Chit. C. L. 233; Haw. P. C. B. 1 Ch. 83, s. 1, 13, 17, 18, 21, 22; 8 Johns. 220-479, 1 Phil. Evid. 355, Second Am. Ed.; 2 Roll. Abr.; Bro. Abr. Maintenance, Pl. 7, 14, 17; 15 Vin. Maintenance H.; 2 Inst. 563-4. Cited to prove champerty, &c. 2 Johns. Cases, 382; 18 Johns. Beckman v. Frost; 1 N. York R. L. 178, s. 1 ; 8 Johns. R. 479, Jackson v. Ketcham; West, 1 ch. 25, 28, 29; 28 Ed. 1 ch. 11; 8 Johns. 220; 2 Bl. Com. 18; 1 Haw. B. 1 ch. 84, s. 19; 1 Hawk. ch. 83, s. 20; 15 Vin. 162, Pl. 9; 2 Bl. Com. 208; Br. Maintenance, Pl. 18, p. 74; 4 D. & E. 340, Master v. Miller; 2 Johns. Cas. 58; 5 Johns. R. 327; 3 D. & E. 454; 4 do. 468; 3 B. & P. 35. By the chancellor, Inst. book 1, tit. 16; Code, book 2, tit. 59; Dig., book 5, tit. 1, 79; Inst. book 4, tit. 1, 33; Huber, 457; Wood's Civil Law, 341; Co. L. 114; 4 Bl. Com. 135; 1 Leon, 167 ; 32 H. 8; 4 D. & E. 340. An agreement to aid in defending a suit, with one who is not licensed as attorney or counsel, is illegal and void for mainte nance. A conveyance by a disseisee is unlawful and void, but the title remains in the grantor; hence, in a writ of entry, the tenant cannot plead the demandant, after the disseisin made such an unlawful conveyance, and that the action is brought at the expense and for the use of the grantee, in pursuance of an unlawful agreement between him and the grantor. ART. 2. Babcock, 7 Johns. Ch. R. 201. CHAPTER CCHI. CHEATINGS, &c. . § 2. To constitute a cheat or fraud indictable at common law, it must be an act that affects the public. Such a decepThe People v. tion as common prudence cannot guard against; as by using false weights and measures, or false tokens, or where there is a conspiracy to cheat: 2. Where A pretended he had money in his pocket ready to pay his debt, whereby he obtained a receipt in full in discharge of his debt, and then went off without paying it, held, not indictable, there being only a false assertion; but 12 Johns. 292; when a person gets goods, &c. by false pretences, he is indictable on the statute sess. 13, ch. 29, s. 13. So this act introduced a new rule of law. 14 do. 371, People v. ART. 7. § 9. This was an indictment on statute 1815, ch. 136, for obtaining money by false pretences. The indictment alleged the deft. did knowingly and designedly, with intent to cheat and |