A plea in abate ment may be admitted ore tenus, 4. REX V. DEAN. 1787. Old Bailey. 1 Leach, 476. S. P. SWAN'S Indictment of one by the name of T. D. Plea by his counsel, ore tenus, that his name was J. and not T. D. Clerk of the arand issue imme- raigns replied, on behalf of the crown, that he was known as well by the name of T. as by the name of J.D. Issue joined. The jury returned a jury instanter to try this issue, and it was found for the crown; upon which the prisoner pleaded over to the felony, not guilty. Dean's case, 1 Leach, 476. diately joined. The plea should conclude with praying judg ment of the indictment, and that it may be quashed. 5. REX V. SHAKSPEARE. T. T. 1808. K. B. 10 East, 82. 1 The plea of misnomer in this case concluded with a prayer of judgment of the said indictment, and that the defendant might not be compelled to answer the same. General demurrer and joinder. In support of the demurrer it was argued that the conclusion of the plea was improper, as the defendant ought to have prayed quod billa cassetur. In answer to this objection it was submitted, that praying judgment of the indictment was equivalent to a prayer that it should be quashed. Per Cur. We cannot, on a plea in abatement, give such a judg ment as may appear proper on the whole record, as we should be bound to do in the case of a plea in bar. (See 1 Saund. 97. n. 1; 3 T. R. 186; 1 East, 636; 4 East, 502-9; 10 East, 87; 2 Marsh. 303; 6 Taunt. 587; and ante, p. 49.) In abatement the Court can pronounce no other judgment than the judgment prayed for by the party. The plea ought in strict accuracy to have been that the indictment should be quashed; but as it is sanctioned in its present form by Comyns, in his Digest, (Abatement, F. 18.) we must, consistently with that precedent, adjudge the plea to be sufficient; and if the prosecutor be dissatisfied with this determination, he may bring a writ of error. See Rex v. Mathew Westby, E. 3 Geo. 1; Rol. 28. cited 10 East, 85. n. Semb. Defen dant may plead in abatement, on a trial at bar, (D) AFFIDAVIT OF VERIFICATION. 1. KINLOCH' CASE. 1746. Fort. 16; S. C. 1 Wils. 157. This was a trial at bar for high treason. The defendant pleaded to the jurisdiction, without an affidavit of verification being annexed without annex- to the plea. The attorney-general demurred, and no objection was ing an affidavit in verification of the plea ; But in no other case can it be taken to the omission. 2. REX V. GRAINGER. H. T. 1765. K. B. 3 Burr. 1617. S. P. REX V. On a motion to set aside the defendant's plea to an indictment, dispensed with. and that judgment might be entered against him by default, as the In practice it is usual to have the plea engrossed on parchment, and signed by counsel, and delivered by the defendant, in person, in open court, upon his being charged with the indictment.-C. C. C. 21. prosecutor had, by reason of this dilatory plea, lost the benefit of trial at the sittings after term, the objection taken was, that "the plea was a dilatory one, and not verified by oath," nor was any probable matter shown to the Court to induce them to believe that the fact of it was true. Per Cur. It is usual to annex affidavits to pleas of this description in the Crown Office, and we do not see why they should not be annexed. Rule absolute for setting aside the plea, for want of an affidavit. See Com. Dig. Indictment, L; Hawk. P. C. b. 2. c. 34. s. 7; Arch. Crim. P. C. 47; and 4 & 5 Anne, c. 16. s. 4. (E) JUDGMENT. 1. THE KING V. SHAKSPEARE. T. T. 1808. 10 East, 87. Upon demurrer to a plea in abatement, found in favour of the The judgment defendant, the Court directed the following judgment to be entered on a plea up: abatement in misdemeanors "Whereupon all and singular the premises being seen and fully is, that the defenunderstood by the Court of our said Lord the King now here, and dant be not commature deliberation had thereupon, it is considered and adjudged by pelled to answer, the said Court here, that he, the said Samuel Shakspeare, be not but depart the compelled to answer the said indictment, but that he depart hence Court without without day in this behalf." 2. REX V. JOHNSON. T. T. 1805. 6 East, 602; S. C. 2 Smith, 591. day. ment, it is, that To an indictment for a libel the defendant pleaded to the jurisdic So when there is tion of the Court of King's Bench that he was a native of Ireland, demurrer to a and that Ireland before the union was governed by its own laws, and plea in abatenot by the laws of Great Britain, and that since the union is yet the defendant governed by its own laws, &c. and that there always have been and answer over, and now are courts and jurisdictions in Ireland distinct from those in not final. + Great Britain, and competent for the trial of all offences committed by the natives resident there, and that the defendant is a native of, and was resident in, Ireland, at the time of the offence alleged, and that the subject matter of the supposed libel related to things in Ireland. To this there was a general demurrer; and after argument, judgment was given against the defendant, when he was ordered to answer over instanter, or judgment to be entered against him peremptorily. See Form of Judgment of respondeas ouster, Trem. P. C. 189. 190; 1 East, 542; 2 Wils. 368. Where an indictment for a capital crime is abated for a misnomer, the Court will not dismiss the prisoner, but cause him to be indicted de novo; (Cro. Car. 371-2; 4 Bl. Com. 329; Hawk. 62. c. 34. s. 2; 2 Hale, 176. 238; the Earl of Bontway's case, St. Tr. 51;) and, whether the offence be a misdemeanor or a felony, if the grand jury be not discharged, another bill may be immediately preferred against the accused. C. C. C. 21; 2 Hale, 176. 238; Dick. Sess. 167. + But where there is a verdict against the defendant on an indictment for a misdemeanor, the judgment is final; (8 East, 107; 2 Wils. 367 ;) though in cases of felony the judgment in favorem vitæ is only that he answer over, 2 Hale, 239. 255; 2 Lord Raym. 922; 2 Wils. 368; 1 East, 542; 8 East, 110. Abbreviations. See tit. Attorney; and Style's Rep. 182. c. 2. 227. c. 2. 290; and 4 Geo. 2. c. 26; 6 Geo. 2. c. 14. s. 5; and post, tit. Forgery. An indictment at cominon law will lie for conspiring to take away a woman from her parents, and then seducing her. The subsequent consent of the woman to her defilement, after a forcible abduction, will not (A) AT COMMON LAW. REX V. LORD GREY. M. T. 1682. K. B. 3 St. Tr. 519; S. C. 1 East, This was an information at common law against Lord Grey and several others, for conspiring and intending the ruin of the Lady Henrietta Berkeley, then a virgin unmarried, within the age of eighteen years, one of the daughters of the Earl of Berkeley, (she being under the custody, &c. of her father,) and soliciting her to desert her father, and to commit whoredom and adultery with Lord Grey, who was the husband of another daughter of the Earl of Berkeley, sister of the Lady Henrietta, and to live and cohabit with him; and further, the defendants were charged, that, in prosecution of such conspiracy, they took away the said Lady Henrietta at night from her father's house and custody, and against his will, and caused her to live and cohabit in divers secret places with Lord Grey, to the ruin of the lady, and to the evil example, &c. The defendants were found guilty, though there was no proof of any force; but on the contrary it appeared that the lady, who was herself examined as a witness, was desirous of leaving her father's house, and concurred in all the means taken for her departure and subsequent concealment. It was not shown that any artifice was made use of to induce her to leave her father's house; but the case was put upon the ground that there was a solicitation and enticement of her to unlawful lust by Lord Grey, who was the principal person concerned, the others being his servants, or persons acting by his command, and under his controul. See Rex v. Twistleton, 2 Keb. 432; 1 East, P. C. c. 11. s. 9. p. 458; and a precedent, 3 Chit. Crim. 713. (B) BY STATUTE. 1. REX V. BROWN. T. T. 1672. K. B. 3 Keb. 193; S. C. 1 Vent. 243. 244. The prisoner was indicted on the stat. 3 H. 7. c. 2. for forcibly taking away and marrying the daughter of S. T. a city orphan in the custody of the chamberlain. The facts established in evidence were, that the prosecutrix was possessed of 5000l.; that she was menaced by the defendant, who was disguised in a mask, and carried away in a coach to Westminster; take the case out and the next day, by her own consent, but caused by the precedent of the statute menaces, she allowed herself to be married, but was not actually defiled, 3 Hen. 7. c. 2.* the defendant being interrupted in his designs; and, by direction of the sary that she Court, the defendant was found guilty, and afterwards received sen- should be actence of death, and executed. See 1 Hale, 660; 1 Hawk. P. C. c. 41. s. 8; Fulwood's case, Cro. Car. 485. 493; Swanson's case, 5 State Trials, 450; C. C. C. 530 for Precedents, see Petersdorff's Index, Crim. Div. p. 1. 2. THE QUEEN v. SWANSON AND OTHERS. M. T. 1701. K. B. 7 Mod. 101-2; S. C. Holt, 319; 5 St. Tr. 453. ; nor is it neces tually married The The prisoner, by with marrying a fewere male after the abduction, and while under The defendants were indicted upon the stat. 3 Hen. 7. c. 2. facts disclosed in evidence were, that the female was resident her aunt, and that on the day stated in the indictment they way-laid, and arrested in a fictitious suit, and conveyed from Westminster, where they lodged, to the Garter Tavern, Drury-lane, and restraint, is that the defendants there separated the aunt and niece from each guilty of an other, and carried the latter to Holborn, where Swanson, the prin- offence within cipal defendant, became her bail, and there married her while in custody. Baynton, one of the defendants, told her that if she did not marry Swanson she must go to Newgate. the statute, although he may not have assisted in the The Court, in directing the Jury, told them, that though the original abducfemale might have had a regard for Swanson, yet, as she was not tion. privy to the contrivance of coming out to him, and knew nothing of the scheme adopted by the defendants, and being married whilst she continued under that restraint and violence, though perhaps she consented to the marriage, the act itself was a crime within the statute; for here was a forcible taking away; and her subsequent consent, while under the restraint, could not be looked upon but as the effect of a continuing coercion; and that though Swanson had known nothing of the first force, yet he knowing her to be under restraint, and marrying while he knew her to be under it, made him an approver of the first act of violence, and hence a participator in the general guilt. *This act, after reciting that "whereas women, as well maidens as widows and wives, having substances, some in goods moveable, and some in lands and tenements, and some being heirs apparent unto their ancestors, for the lucre of such substances have been oftentimes taken by misdoers, contrary to their will, and after married to such misdoers, or to others, by their assent, or defiled, to the great displeasure of Almighty God, and contrary to the king's laws, and disparagements of the said women, and utter heaviness and discomfort of their friends, and to the evil example of all others," proceeds to enact, "That what person or persons from henceforth that taketh any woman so against her will unlawfully, that is to say, maid, widow, or wife, that such taking, procuring, and abetting to the same, and also receiving willingly the same woman so taken against her will, and knowing the same, be felony, and that such misdoers, takers, and procurators to the same, and receivers, knowing the said offence in form aforesaid, be henceforth reputed and adjudged as felons, provided always that this act extend not to any person taking any woman, only claiming her as his ward or bond woman." The statute 39 Eliz. c. 9. s. 1. took away the benefit of clergy from persons charged with such offences; but now, by a recent act, 1 Geo. 4. c. 115. the 39 Eliz. c. 9. s. 1. is repealed, and persons convicted on stat. 3 H. 7. may be transported for life, or any term not less than seven years, or imprisoned only, or imprisoned and kept to hard Jabour, for any term not exceeding seven years. Persons who 3. THE QUEEN V. WHISTLER. H. T. 1701. K. B. 7 Mod. 132. Per Powell, J. By the statute of 3 Hen. 7. c. 4. for stealing after the fact re. women, &c. all aiders and abettors are principals by the statute; yet ceive the offen there may be an accessary, as he who receives them after knowing der, but not the them to be guilty, and this according to the known rules of common woman, are not law. principals within the statute. Where a woman is not indictable See 1 Hale, 661; 3 Inst. 61; 1 Hawk. P. C. c. 41. s. 9; 1 East, .P. C. c. 11. s. 2. p. 452. 453; 1 Russel, 820; Fulwood's case, Cro. Car. 488. 4. LOCKHART AND LOUDON GORDONS' CASE. Cor. Lawrence, J. Oxford Lent Assizes, 1804. Russel, 821. The two prisoners were indicted for the forcible abduction of Mrs. is taken forcibly Lec, the prosecutrix, who was at the time of the commission of the from one county into another, and offence living apart from her husband upon a separate maintenance of is married or de- 900l. per annum. The two prisoners, it appeared, had been received at filed with her own the house of the prosecutrix as acquaintances, but Loudon Gordon had consent in the made overtures to her to be admitted to a more familiar intimacy; that latter, the offence he had not been expressly interdicted from renewing his requests on the in either county, subject, or directly encouraged. On the day when the alleged offence was committed, the prisoners had been invited to dine with the prosecutrix; that Lockhart Gordon after dinner said that it was near seven o'clock, and that the chaise would soon be there, and he told the prosecutrix that she must go with Loudon that night. She considered this a joke, and observed that she knew of no preparation having been made for her leaving London. On her afterwards attempting to leave the room, Lockhart Gordon said she should not, and placed himself against the door, and either at that time or soon after produced a pistol; she, however, after having rung the bell violently, got out at the door and went up stairs, when she said to her female servant, "There is a plan to take me out of my house; they are armed with pistols; say no more, but watch." The footman was sent by the prisoners to call a coach; and during his absence, there being only female servants in the house, Lockhart Gordon laid hold of the female servants, and intimidated them by producing a pistol; when Loudon Gordon put his arm round Mrs. Lee's waist, and took her down stairs and out of the street door, when Lockhart immediately followed, and assisted in putting her in a chaise then waiting at the end of the street. Mrs. Lee stated, that though she remembered but imperfectly what took place at the time she was taken away, she was certain that she went from the house against her will, but that no manual force was used to get her into the chaise; she described herself as in a state of partial stupefaction, and witnesses stated that she was occasionally subject to a depression of spirits to such an extent as to almost amount to absolute mental alienation. It was then proved that the chaise was driven to Tetsworth, in Oxfordshire; and that during the journey, although she sometimes remonstrated, she made no appeal to the post-boy, or endeavoured to obtain assistance at the inns, turnpike-gates, or other places; that beds were prepared at Tetsworth; that after the prosecutrix had retired to her bed-room, the chambermaid asked her when she should be in bed, and when the gentleman should come up; to which she |