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of, and impudently endeavors to induce those before whom he
swears to proceed upon the credit of a disposition which any stran-
ger might make as well as he." Palm. 294 ; 3 Inst 166 ; 2 BolL
Abr. 77.

I have endeavored to pay close attention to the argument of the
learned attorney for the commonwealth, and to the authorities on
which he has relied, in support of this indictment ; and it appears
to me, that they are altogether founded on the principle, that the
act of the defendants was by them done wilfully if not corruptly :
and yet, I do not find, that what is charged against them in the
indictment, is therein alleged to have been done toilfuJly^ or with
any unlawful intent. In drawing the indictment, every allegation
of unlawful intent is carefully omitted : and yet, it is an element*
ary principle, that to render a party criminally responsible, a vi-
cious will must concur with a wrongful act. 1 Starkie on C. P. 177.

An indictment is a true description of an c^ence, and must



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1838.] Miscellaneous Cases. 185

contain all circumstances which are essential to its commission.
The omission of any material circumstance cannot be supplied by
intendment, nor after verdict Nothing is to be considered in the
indictment which is not plainly expressed, or necessarily implied.
The rule applicable to all cases is, ^^ that the special manner of the
whole fact ought to be set forth with such certainty, that it may
judicially appear to the court, that the indictors have not gone upon
insufficient premises.*^ Bac. Abr. tit Indictment (G.) ^^ There-
fore no periphrasis, or circumlocution whatsoever will supply those
words of art which the law hath appropriated for the description
of the offence.** ^^But the indictment must expressly allege
every thing material in the description of the substance, nature,
and manner o£ the crime.** lb. It is said, therefore, by lord
Mansfield, m The King v. Woodfall, 5 Burr. 2667, '' where an act
in itself indifierent, if done with a particular intent becomes crimi-
nal, there the intent must be proved and found : but where the
act is in itself unlawful, the proof of justification or excuse lies on
the defendant, and on failure thereof the law implies a criminal
intent*' head Ellenborough, referring to this passage, in The King
t». Phillips, 6 East, 473, remarks, ^^ Now the intent cannot be
proved and founds so as to sustain the indictment, where a crimi-
nal intent is necessary to accompany the act, unless the intent be
also therein aUeged.^^ *^ If any particular bad intention accompa^
nying the act be necessary to constitute it a crime, such intention
^lould be laid in the indictment. In many cases the allegation of
intent is a merely formal one ; being no more than the result and in-
ference which the law draws from the act itself, and which requires
no proof but what the act it^lf supplies : as in the case of libels,
where the fact of publication is not in question. But where the
act is indifferent in itself, the intent with which it was done then
becomes material, and requires, as any other substantive matter
of fact does, specific allegation and proof. And after verdict
every material allegation in the indictment must be taken to have
been proved.**

It is not chained against the defendants, in these indictments,
that they certified and made oath to the truth of a return, which



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186 Jurisprudence, [Oct

they buw to be false, or bad reason at tbe time to suspect was
false. Tbat would bave been wilful perjury witbin tbe meaning
and intent of tbe Revised Statutes, ch. 128, s. 2. It is not alleged
against tbe defendants, that they, intending to deceive and defraud
the public, conspired together to make and publish this false cer-
tificate ; or tbat they wilfuUy neglected and omitted to examine
and compare the books of the bank with the casbier^s return, know-
ing tbat to be false : nor is it intimated in the indictment, that they
bad any reason to believe, tbat the books did not indicate the
truth of the statement. Stripping it of technical Icmguage, and
reducing it to its elements, it charges only, that the defendants did
not examine the books as they ought to have done^ and did not a$^
certain the truth of the return^ and that without any such examine-
ation, and without knowing the state of the books, they made and
swore to the eertificate and that the return was false : it concludes,
that they thereby committed an official misdemeanor, and criminal
neglect of duty in their office of directors of the bank^ against the
peace, &c.

It is not alleged, that this act was done wilfully, by them or with
any unlawful intent ; — and yet to constitute a misdemeancHrat com*
mon law, growing out of the infraction of a statute, it must be alleg-
ed, according to all books of entries and precedents, that it was done
wilfully and for an unlawful purpose. If the act done by th&
complainants, which is described in this indictment, might have
been done innocently, by inadvertence, or through mistake of duty,
or even in ignorance, from incapacity to understand the books, the
act though highly faulty and imprudent, would not amount to a crime.
Such an act may have been full of hazard to themselves and to
the bank, and highly inconsistent with their duty as directors, with*
out, however, subjecting them tp a criminal accusation at common
law, which always includes something wilful, or corrupt, and done
with an evil intent.

, The conclusion of an indictment, ^^ that the act was against th&
peace, and contrary to tbe form and effect of the statute,^' will not
help an imperfect description. Nor is there any particular offence
knoMm in law, as an ^^ official misdemeanor and a criminal negleoi



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1838.] Miscellaneaus Cases. 187

of dutj ;** although this may he applied to any offence, committed
hy a puhlic officer, hy the negligent perfonnance, or wilful omit*
sion of an act of duty. What is so denominated must he first de«
scrihed in appropriate, legal language. ^^ Those circumstances
mentioned in the statute to make up the offence, shall not he sup-
plied hy the general conclusion, contra formam staiuti. 2 Hale,
170. It is not sufficient in an indictment, to descrihe an action,
which may he either innocent or unlawful, and then call it a crime.
In the very description, you must include the evil qualities of the
deed. For where words admit of douhtful signification, and may
receive two constructions, the one consistent with law and right,
and the other contrary thereto ; the judge is hound, hy the human-
ity of the common law, and in favor of innocence, to adopt the
most favorahle construction for the party accused.

It is very apparent, that the statute intended, that the return
should he made from the hooks of the hank, and that the directors
should give to it, hy their certificate, the sanction of their personal
knowledge ; hecause they are required to certify on oath, that the
books indicate its correctness. The statute does not, however, re-
quire them in express words, ^^ to examine the hooks and to com-
pare with them the return.^* It leaves to their discretion, to pur-
sue their own method, in sati8f3ring themselves of the state of the
books and the correctness of the return. If then they should ap-
point one or more of their number, skilled in accounts, to eompare
the return with the books, and should make their certificate on the
report of such committee ; it could not be said, that they did the
act without examination, and without knowledge ; and yet the re-
turn, even under these circumstances, might prove to be incorrect

If the directors of a bank should undertake to examine and
compare the books with the cashier^s statement, what degree of
examination will satisfy the law ? One director will content him-
self with a slight inspection ; but a more careful and conscientious
director will choose to go into a thorough examination, so as to be
satisfied, that the books are correct, as well as that they indicate
the state of facts contained in the return. The law, presuming
that directors will act in good fiuth, seems also to presume, that



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188 Jttrisprudence. [Oct.

they will perfonn this taak with intelligence, and according to their
sense of duty. It may be done very imperfectly. The return
may be very erroneous, and mislead the public to their great in-
jury. But unless the fault shall arise from wilful misconduct on
their part, I am constrained to believe, that it was not intended to
be a subject of criminal accusation.

For the neglect of its officers to make a return, the bank is
made liable to a heavy penalty, by the 66th section of this chap*
ter. The directors also are liable in their private capacities for
mismanagement and lack of vigilance : for it is their duty to
administer the concerns of the bank according to the provisions of
law, and to exercise a vigilant supervision over the cashier, and
over all subordinate officers, which in some cases is both salutary
and necessary, and in all would be attended with good effect But
unless something is done by the directors, unlawfully and wilfully,
and with intent to defraud or to injure the public, or some individ-
ual, it is not matter for an indictment, either at common law, or on
the statute.

Both these banks have failed ; and I am aware, that a great
prejudice exists in the mind of the public, against their managers.
Without doubt there may have been great imprudence and mis-
conduct. But the defendants are not charged with general mis-
management, or neglect in the performance of their trust, but
with a specific act : and the question is, whether the act chaj^ed
is clearly defined to be an offence, and is within the meaning and
intent of the law.

The brief report of the Commonwealth v, John Mycall, Esq.,
2 Mass. Rep. 136, is full of instruction. He was a justice of the
peace for the county of Worcester, and issued a writ of attach-
ment in favor of one T. W. against one J. K. directed to the
sheriff of the county of Essex, and to his deputies, and to the
constable of Harvard within the same county. The writ was
served by a constable of Harvard, in the county oi Worcester,
and returned to the defendant. The indictment charged, that the
defendant, before the time of trial, did unlawfully erase in and
from the said writ the word Essex, and did falsely and unlawfully



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1838.] Miscdlaneaus Cases. 189

insert in the room and place thereof, the word Worcester, thereby
unlawfully and falsely changing the same writ from a writ direct-
ed to the sheriff of the county of Essex or either of his deputies,
or the constable of Harvard within the same county, to a writ
directed to the sheriff of the county of Worcester, or either ol
his deputies, or the constable of Harvard within the same county,
with an intent to injure, oppress, wrong and defraud the said J. K.
against the peace, 6zc.

Upon his trial at the supreme judicial court, Worcester county,
April, 1805, the defendant was convicted : and a motion in arrest
of judgment was sustained by the court (chief justice FnnooM^
Sedwick and Sewall justices), on the ground, that the charge being
for altering a writ after the service of it, and before entry, con*
tained no technical description of forgery, and that there was no
lesser offence of that kind.

The attorney general (Sullivan), said it was not the intention
of the grand jury, who found the bill, to charge the defendant
with the crime of forgery.

The supreme court would not sustain a novel mode of proceed-
ing, not according to the established forms of law. The more
simple and intelligible the accusation of guilt, the easier is it for
a citizen unjustly accused, to defend himself against it It ought
to be understood, that the various provisions of law, by which even
the guilty sometimes succeed to screen themselves from deserved
punishment, are designed for the protection of innocence. Accord-
ing to the attorney general, in that case, the grand jury were will-
ing to accuse Mycall with the unlawful deed done, but they were
not willing that the law officer of the commonwealth should de-
scribe the offence in such legal and technical form, as would sub-
ject the offender to punishment. As to the form of the indictment,
the jury had no concern. In refusing to return an indictment
according to the well known established forms of law, they as-
sumed on themselves the responsibility of a refusal and failure to
perform their duty.

The law required these defendants to certify on oath, to the
truth of the cashier^s return. In compliance with the letter of



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190 Jurisprudence.

the law, they have made and twom to such a certificate, which
proves to he false. If this was done hy them wilfully, knowing
at the time, or having reason to suspect, that it was false, the
offence was perjury within the letter and spirit of the Revised
Statutes, ch. 128, ^ 2, and nothing else. For to do an act wilfully
is *^ to act contrary to a man^s own conviction.** 1 East^s R.
563, note (a). But the indictment makes no such charge. It
lacks not only the technical description of the crime of per-
jury, but of any other offence known in law. Even the guilt
of perjury may be incurred, as we have seen from the authori-
ties cited, by swearing to a fact as true, when it was not known
to be so by thei party, and with reckless indifference whether
it was true or false. Although criminality may be inferred in
some cases from certain facts proved ; yet such inference is pre-
cluded in this case by the omission to allege any wilful intent. In
the entire absence of a charge of criminal intent, the court can-
not infer one, nor would a jury have right to infer one ; and the
judgment would be arrested, if the jury should return a verdict of
guilty. A further trial of this indictment would be a waste of
time, and could be followed by no good consequences. It might
even be a ground to reproach the inefficacy of legal forms. Both
indictments being essentially defective and incurable, the defend-
ants ought not to be required to answer to them further : — ^It is the
order of the court, therefore, that they be quashed, and that the
defendants be discharged.

NoTs. For the opinion of the court, ovemiling the pka in abAtement,
mentioned on page 170, tee The Law Reporter, No. 5, for September, 1838,.
pabliahed in Boeton.



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(191)



LEGISLATION.



Maine. At the January session, 1888, of the legislature of
Maine, fifty-three puhlic acts, one hundred private acts, and one
hundred and six resolves, were passed.

Petitions to the legislature. A statute of the last session, *^ di-
recting the manner of dispoijing of petitions to the legislature, in
certain cases,^ was repealed. The act repealed is inserted in the
Am. Jur. vol. zviii, p. 199, togeUier with some editorial remarics,
to which the repeal may possibly in part be attributed. Chap. 805.

Attachment, The following articles, viz. : one plough of thq
value of ten dollars, one cart of the value of twenty-five dollars,
one harrow of the value of five dollars, all necessary hand farm-
ing tools of the value of ten dollars, and one cooking stove of the
value of thirty-five dollars, are exempted from attachment, on
mesne process, or execution. Chap. 307.

Attorneys, The committee, required by a statute of the last
year (see Am. Jur. vol. xviii, p. 200) to be appointed in July of
each year, is to be appointed in April (chap. 304) ; and all per*
sons, admitted to practise in the court of common pleas, and of
regular standing at the bar thereof, are authorized to conduct,
manage and ai^e all cases, both of law and fact, in the supreme
judicial court. Chap. 818.

Transfer of stock. The stock of any company, incorporated
by a law of Maine, the capital stock of which is divided into
shares, may be transferred by the indorsement (by the signature
of the proprietor, or his attorney, or representative), and delivery,
of the certificates thereof, and an entry of such transfer on the
records of the company, so far as to show the names of the par-
ties sudd the date of the transfer. Chap. 326.



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192 Legislation. [Oct.

Mortgages of real estate. The mortgagee or his assigns may
foreclose, by publishing three weeks successively in some news-
paper printed in the county, where die estate is situated, a notice
of his claim thereto by mortgage, and that the condition in the
same has been broken, by reason whereof he claims to foreclose
such mortgage ; or by causing such notioe to be served on the
mortgagor or his assigns ; and by recording such publication or
service, in the registry of deeds where the mortgage is recorded,
within thirty days. Chap. 333.

Illegitimate children. An illegitimate child shall be considered
as an heir of the person, who shall have been adjudged the puta-
tive father, by any court of competent jurisdiction, or who shall
in writing acknowledge himself the father of such child, and, in
all cases, as the heir of the mother ; but, such child shall not be
allowed to claim, as representing his father or mother, any part <^
the estate of his or her kindred, either lineal or collateral ; and,
if any illegitimate child shall die intestate, without lawful issue,
his estate shall descend to his mother, or, in case of her decease,
to her heirs at law. Chap. 338.

Divorce. A divorce from the bands of matrimony may be de-
creed, in case either of the parties is or shall hereafler become a
confirmed and common drunkard, and shall so continue for the
space of three years, thereby incapacitating him or herself from
making suitable provision for or taking proper care of his or her
family. Chap. 342.

Attachment of real estate. The officer, making an attachmmit
of real estate on mesne process, is required to file an attested c<^y
of his return, in the office of the registry of deeds, in the county
or district where the estate lies, with the names of the parties in
the suit, the sum sued for, the date of the writ, and the court to
which the same is returnable, within five days after the attach-
ment. Chap. 344.

Lands forfeited to the state. Where land has been sold by the
state and conveyed by a conditional deed, and the title to the
same has become forfeited in consequence <^ the non»perfonB>
ance of the condition, the purchaser or pensoas claiming under



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1838.] New Hampshire.— Connecticut. 193

him may reYire and secure the title to such lands, hy paymei^ or
performance of the condition, within two years firom March 33,
1838, (except where the state has already conveyed the forfluted
land, or where a controversy is pending relative to the title thereto).
The same privilege is also extended to all cases of forfeiture,
which may take place within cme year from the said March 33.
Chap. 852.

New Hampshiee. The general court of New Hampshire, at
the June session, 1838, passed sixty public acts and resolves, and
twenty-five private acts.

Attorneys, Any citizen, of the age of twenty-one years, and
of good moral character, may, on the recommendation of any
attorney within the state, petition the superior court to be exam-
ed for admission as an attorney therein ; and upon an examination,
in pursuance of such application, may be admitted to practise as
an attorney in said court, and in all other courts of the state, upon
taking the oaths prescribed by law. Any person, having been
admitted an attorney or counsellor of the highest court of any
other state, of which he was an inhabitant, and afterwards becom-
ing an inhabitant of New Hampshire, may be admitted to practise
there, upon satisfactory evidence of his good moral character, and
his professional qualifications. Chap. 371.

Suffrage. Every male citizen of twenty-one years of age or
upwards (excepting paupers and persons excused from paying
taxes at their own request), who shall have resided within the state
six calendar months, and within the town or place where he may
claim the right to vote three calendar months, next preceding the
day of the meeting at which he shall claim such right, shall have
the right to vote therein. Chap. 384.

Connecticut. The general assembly of this state, at the last
May session thereof, passed sixty-nine, public acts, and several pri-
Tate acts and resolutions.

Cruelty to animals. The wanton and cruel beating or torturing
of any horse, ox, or oUier animal, whether belonging to the offend-
er, or not, is made punishable by imprisonment in a common

VOL. XX. — ^NO. XXXIX. 13



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194 Legiahtian. [Oct

jail, not exceeding one month, or by fine not exceeding twenty dol-
lars. Chap. 2.

Impriionmentfor debt. The act of the May session of 1837, to
abolish imprisonment for debt, is repeal^ (see Am. Jur. vol. zviii.,
p. 113), and the following provisions are substituted therefor.
When the defendant in any action, founded on contract, who has
resided in the state for at least three months preceding, is arrested
on mesne process, he may require the officer forthwith to take him
before a justice of the peace, for the purpose of having the poor
debtor's oath administered to him. If, however, the plaintiff or
his agent has made affidavit, before the authority issuing the writ,
that he verily believes that the defendcmt has assigned, removed,
or disposed of, or is about to dispose of any of his property, with
intent to defraud his creditors, or is about to remove from the
state, in such case, the justice, before administering the oaUi, must
give the plaintiff four days notice, to appear and show cause. If
no cause be shown, the applicant is then to be examined, the oath
administered, and the party discharged. Chap. 33.

Interest, The computation of interest according to the stand-
ard laid down in Rowlet's tables, is declared to be valid to all in-
tents and purposes. Chap. 35.

Fugitive slaves. Provbion is made, by chap. 37, " for the ful-
filment of the obligations of this state, imposed by the constitution
of the United States, in regard to persons held to service or labor
in one state, escaping into another, and to secure the right of trial
by jury," in the cases mentioned in the said act

Spirituous liquors. The civil authority and selectmen of each
town are authorized, by a vote of two thirds, at a meeting for the
purpose to be held annually in the month of January, to prohibit
the retailing of wine or spirituous liquors within the town, for the
year ensuing, in any quantity less than five gallons.

If there be no such prohibition, any person may sell wine or
spirituous liquors, in less quantity than five gallons, to be taken
and carried away at one and the same time, provided he previously
lodge with the town clerk of the town, a bond with surety
to the satisfaction of the selectmen, in the penal sum of three



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1838.] New York. m

hundred dollars, conditioned for the due observance of ail the laws
relating to the sale of spirituous liquors.

One of the laws, for the due observance of which the bond is
given, provides, that ^* no person shall sell directly, or indirectl j,
by an agent or otherwise, to any person or persons, nor authorize,
or permit to be sold, any wine or spirituous liquors, mixed or un-
mixed, to be drunk in his or her house, shop, distillery or any other
place, or dependencies, nor suffer or permit the same, when so
sold, to be drunk as aforesaid, nor keep the same for sale to be
drunk as aforesaid.**

The provisions of this act are not to be construed to prevent the
keeper of any tavern, or house of public entertainment, duly
licensed for the purpose, from selling wine and spirituous liquors
to be drunk therein, nor to prevent apothecaries from selling spir-
its for medicinal purposes. Chap. 53.

AmendmenU of the constitution. The amendment proposed in
1837 (see Am. Jur. vol. xviii, p. 515) respecting the appointment
of the judges of the supreme court of errors and of the superior
court, and to the tenure of their office, does not appear to have
been confirmed. A resolution of the same session, for an amend-
ment, relating to the choice of sheriff by the electors of each
county, was confirmed, and provision made for submitting it to
the votes of the people. Chap. 10.

A resolution of the same session, for an amendment, relating
to the qualification of electors, appears to have passed, but we do
not perceive any provision made for submitting it to the people.



Online LibraryFred IbbotsonThe American jurist and law magazine, Volume 2 → online text (page 17 of 42)