The jury took some the parties intended to pass by the words." In a ABBOTT C. J. I am decidedly of opinion, that the direction and finding are both consistent with principle. If the widow Kellett had been alive at the time of the deed there would have been no doubt; but in fact she was dead two years before. Then the question is, not abstractedly what was the meaning of the grantor, but what was his meaning by the words used; and they meant only lands which had been in the occupation of widow Kellett; and the jury find, that BEAUMONT against FIELD. BEAUMONT against FIELD. 1818. 20th Nov. Affidavits of fresh facts are not in general admissible in though the intention was to grant all the lands, yet the words are not sufficient to express that intention. BAYLEY J. I am of the same opinion, and assent to the reasons. The intention is not to be sought generally, dehors the deed and dehors the evidence, but subject to the deed and evidence. The jury ought to find what was meant by the words "lands in the possession of widow Kellett and son." HOLROYD J. I am of the same opinion. The intention of the party must be taken by the jury from the import of the words which have been used; and I think the jury correct in the conclusion they have Rule refused. drawn. THE KING against BOWDITCH and others. HIS was an indictment against the defendants for THIS a conspiracy, and was tried before PARK J., at criminal cases, the Summer Assizes at Dorchester, when all the defend on a motion for a new trial, ants, except one of the name of Elizabeth Snell, were unless there was found guilty. Scarlett now moved for a rule to shew cause why the verdict should not be set aside, and a new trial granted. some surprise on the defendant at the trial; affidavits of the death of a person may be received to account for his not being examined (a). ABBOTT C. J. inquired if the defendants were in Court? and it appeared that they were present. Scarlett then proceeded. The indictment was for a (a) The Court will not in general grant a new trial, in order to let the party into a defence, of which he was apprized at the first trial. Vernon v. Hankey, 2 T. R. 113. 2 Salk. 647. 653; nor on account of the omission of the defendant or his attorney, in not coming prepared with evidence which might have been produced; Bul. Ni. Pri. 327; Walker v. Scott; or because one of the witnesses made a mistake in giving his evidence. Sayer. Rep. 27; or was discovered to be incompetent, after the finding of the jury. 1 T. R. 717. Chit. Crim. Law, 656. It seems, too, that the mere ground of a witness having given evidence contrary to what was expected, is not sufficient to authorize a new trial. Hewlett v. Crutchley, 5 Taunt. 277. conspiracy to abduce Miss Glenn clandestinely, without the consent of her mother, or Mr. Tucker, who had married her aunt, and at whose house the young lady lived. There was also a count for an assault and false imprisonment. The motion was made on two grounds; namely, first, the verdict was against evidence; and secondly, there were affidavits to contradict the facts proved in support of the prosecution, most of which were a surprise at the trial on the counsel for the defendants. In some of the facts all parties are agreed; but others are disputed. On the 2d of July Miss Glenn went to the farm of Bowditch, the defendant; on the 2d of September she returned to Mr. Tucker's, and remained there till the 26th of September. It was Sunday when she departed. She stayed on Monday and Monday night at Mr. Bowditch's farm, and was taken back by Mr. Lee, solicitor of Mr. Tucker, on Tuesday morning. The indictment simply charged a conspiracy; force was only alleged in the last count, for false imprisonment, and there was no averment in the first count that the parties knew that Miss Glen was a minor. According to one of the witnesses, Miss Glenn came to Bowditch's farm, and from thence to the farm of Mr. Paul, one of the defendants, at Thornford, from which place she was removed by Mr. Lee on the next day. Mr. Lee was not called as a witness, and therefore, whether the young lady came away from thence voluntarily or not, was not proved. [ABBOTT C. J. here observed, upon a part of the fresh evidence proposed to be brought forward, that affidavits as to the handwriting of the young lady could not be received, inasmuch as with respect to them the defendants could not be taken by surprise, for she had denied one of the letters to Mr. Oxenham the attorney. The rule was strict, and could not be departed from, unless a very strong case was made out.] It was then insisted, that affidavits 1818. THE KING against BOWDITCH and others. 1818. THE KING against BOWDITCH and others. had been often admitted by inspectors of franks, &c. in order to prove that a particular handwriting is not feigned, as well as with respect to the identity of handwriting. Admitting that the evidence was not proper for a jury, it was said to be a different question, whether it is fit for the Court on motion. Affidavits of defendants themselves are often taken, on these summary applications. [ABBOTT C. J. How can the Court look at affidavits which could not be submitted to the jury? The affidavits of defendants may perhaps be taken in the progress of a cause on motions, particularly in criminal cases, in order to remove an implication that the parties accused could not deny on oath the offences with which they are charged.] It was contended, however, that there was a surprise on the defendants. Oxenham, the attorney for the defendants, denied facts stated by Miss Glenn, and which could not have been anticipated. Some of the facts were known only to a clergyman who had died. It was then mentioned on the part of the defendants, that they were possessed of an affidavit of instructions, given by this clergyman previously to his death, for preparing an affidavit, and that these instructions were material to the point in question. PER CURIAM. The affidavit proposed cannot be received. There may be affidavits of the clergyman's death, to account for his not being examined. Scarlett then took an objection to the venue; and BAYLEY J. asked whether, without evidence of the assent of Mr. and Mrs. Paul, two of the conspirators (a) at Thornford in Dorset, there was evidence of any fact committed in Dorsetshire? He was answered in the negative; and it was urged that the venue must be laid where the conspiracy was commenced, and (a) A nolle prosequi was entered as to these two defendants. that there was no evidence that Mr. and Mrs. Paul knew of any thing before the arrival of the parties. He cited 1 Salkeld. 174. as deciding that the venue must be laid in the county where the combination took place, and not where the object was carried into execution. ABBOTT C. J. however said, that at present the Court did not see any reason to grant the rule upon the point as to the venue. But, nevertheless, as the case was important to public justice; and it was fit that justice should be administered with great caution, therefore a rule nisi would be granted, in order that the matter might be settled. Scarlett then suggested, that husband and wife could not be indicted together for a conspiracy; but BAYLEY J. intimated, that that rule was confined to felony; and ABBOTT C. J. said, that with others they might be indicted. Husband and wife cannot be indicted alone for a conspiracy, because they constitute but one person (b); but there are many instances of their being indicted in conjunction with other persons. That point, however, is not necessary to be discussed at present. As there are many defendants, an arrangement had better be made for the case to stand over till next Term. The Court granted a rule nisi, which was discharged in the following Term on cause being shewn, and sentence was passed upon the defendants. Pell, Serjeant, Gaselee, A. Moore, and Williams for the prosecution; Scarlett, Casberd, Selwyn, and Jeremy for the defendants: but, afterwards, one of the witnesses for the prosecution was convicted of perjury, and it was satisfactorily established that the defendants were not guilty of the offences imputed to them. (b) Hawk, P. C. b. 1. c. 72. s. 8. 1818. THE KING against BOWDITCH and others. |