of the ftatute defcribing the offence; for equivalent words are not fufficient.

WITNESSES. It has been the uniform practice to reject every witnefs who is interested at the time of his examination, in fetting afide the inftrument alleged to be forged, upon which, if genuine, he would be liable to be fued. Incompetency arifing from intereft in the event of the verdict, where it really exists, extends to preclude the party from giving other evidence, as well as that of negativing the hand-writing which tends to prove the fact of the forgery. Therefore the executor of a perfon, whofe promiflory note had been forged, was rejected as a witness to prove what the prisoner faid to him when he tendered the note for payment. But if the party whofe hand-writing is forged has no interest in invalidating the inflrument in queflion, there is no doubt but he is a competent witnefs: and fome cafes appear to go the length of establishing, that, being the best, he is the only witnefs, if living, to prove the forgery: but that is not confirmed by the current of authorities to fuch an extent; though the testimony of fuch an one, when difinterested, muit doubtlefs be the most fatisfactory of any, on the queftion of his own hand-writing. And whatever might have been the intereft of the party, in the tranfaction at first, there is no doubt, but if he be divested of fuch intereft, by releafe, payment, or otherwife, at the time he is ready to be fworn, it is no objection to his competency, whatever it may be, under certain circumflances, to his credit. Therefore a releafe from the holder of a promiffory note to the fuppofed drawer in whofe name it was forged, there being no other name on the note to whom the drawer could be liable, made him a competent witnefs to prove the forgery of his hand-writing upon an indictment against the prifoner, who had paffed it off to fuch holder without any indorfement. In Dr. Dodd's cafe, the earl of Chesterfield, the fuppofed obligor of the forged bond, was admitted to difprove his fignature, on producing a releafe from Fletcher, the fuppofed obligee.

JUDGMENT, AND ITS CONSEQUENCES. In a variety of inftances, which have been mentioned, the forgery of particular inftruments has been made felony by ftatutes, for the moft part excluding the benefit of clergy. In all other cafes the offence must be taken to reft in mifdemeanor, punishable at common law by fine, imprisonment, and fuch other corporal punishment, as the court in their difcretion fhall award, and by ftatute alfo with certain punishments of the fame kind in particular inftances, which have alfo been pointed out. One of the confequences of any judgment for this offence is an incapacity

incapacity to be a witness, until restored to competency by the king's pardon under the great feal. The effect of the ftat. 12 Geo. I. c. 29. with refpect to attornies, folicitors, or law agents, has been mentioned.

FALSELY PERSONATING ANOTHER. This offence, committed for the purpose of cheating another, by imposing on him a falfe name or character, for the purpofe of gaining either a new credit, or preventing detection, is in its nature nearly allied to forgery, with which it is ufually accompanied, to give it efficacy. They have been accordingly claffed together by the legiflature in various inftances, with refpect to perfonating the proprietors of government ftocks, or the ftocks of the different public companies; all which are made capital felonies. By referring to the terms of the different ftatutes, it will be feen that the actual completion of the fraud, by the transfer of the ftock, or the receipt of the dividends, is not neceffary to conítitute the offence; it is fufficient if the offender falfely and deceitfully perfonates any true and real proprietor, and thereby tranffers, or endeavours to transfer, the flock, or receives, or endeavours to receive the money; in which cafe he is, by the feveral acts, made guilty of felony without benefit of clergy. In thefe cafes, the real proprietor can be examined as a witnefs to prove the identity of the perfon intended to be defrauded. Perfonating failors, or out-penfioners at Greenwich hofpital, with intent to receive their wages, prize money, or penfions, is alfo felony without clergy; but in thefe cafes, there must be some evidence to fhew that there was fuch a perfon of the name and character affumed, who was either entitled, or might, prima facie at least, be fuppofed to be entitled to receive on board fuch a ship the wages, &c. attempted to be acquired.

By ftat. 21 Jas. I. c. 26. all perfons who fhall acknowledge or procure to be acknowledged, any fine, recovery, deed inrolled, ftatute, recognizance, bail, or judgment, in the name of any other perfons not privy or confenting to the fame, fhall be adjudged felons, without benefit of clergy; (faving corruption of blood and lofs of dower). The act does not extend to any judgment acknowledged by any attorney of record for any perfon against whom any fuch judgment thall be given. This act extended only to proceedings in the courts themfelves: and therefore by ftat. 4 W. and M. c. 4. the chief justices-of the king's bench and common pleas, and the chief baron may refpectively, together with one other judge of their respective courts, appoint commiffioners (other than common attornies and folicitors) in every fhire and county within England, Wales, &c. to take recognizances of special bail or bail pieces in actions and fuits depending in their feveral courts. And any judge

of

of affize in his circuit is empowered to take fuch recognizances. Then any perfons who fhall, before any perfon fo em→ powered, represent or perfonate any other, fhall be adjudged felons, and fuffer as felons. Under the act of James, it has been holden that the bare perfonating of bail before a judge at chambers, or the acknowledging thereof in another name, is no felony, unless the bail be filed; but only a mifdemeanor.

In all other cafes, not made felony by ftatute, the bare fact of perfonating another, though for the purpose of fraud, can in no inftance amount to more than a cheat or misdemeanor at common law, and is punifhable as fuch.

ARSON. Arfon, which was felony at common law, and anciently punished with death, is defcribed to be the malicious and voluntary burning the houfe of another. Many ftatutes have paffed on this fubject, moft efpecially affecting the benefit of clergy; but the crime at this day refts principally on the 9 Geo. I. c. 22. commonly called the black act, which provides that if any perfon fhall fet fire to any houfe, barn, or out-houfe, or to any hovel, cock, mow, or ftack of corn, ftraw, hay, or wood; or fhall forcibly refcue any perfon being lawfully in cuftody for any fuch offence; or fhall, by gift or promife of money or reward, procure any to join him in any fuch unlawful act; he fhall be adjudged guilty of felony, without benefit of clergy; and offenders not furrendering on proclamation are alfo oufted of clergy. By the 9 Geo. III. c. 29. perfons burning or fetting fire to any mill are declared felons without benefit of clergy, but must be profecuted within eighteen months. By further provifion in the fame ftatute, the offender may be required by order of the king in council to furrender within forty days, in default of which the court may award

execution.

To conflitute this offence there must be a malicious and voluntary burning; otherwife it is not felony, but only a trespass; and therefore no negligence or mischance amounts to it. As, if an unqualified perfon by fhooting at game happen to fet fire to the thatch of a houfe; or even if a man were fhooting at the poultry of another, unless he meant to fteal it, in which cafe, the firft intent being felonious, the party must abide all the confequences. But by 6 Ann. c. 31. any fervant negligently setting fire to a houfe or out-houfes fhall, on conviction before two juftiqueences of the peace, forfeit 100l. or be fent to the house of correction for eighteen months. Further, it is neceffary that the houfe, or fome part of it, or fome out-houfe, forming a parcel of it, though not contiguous, be burnt or fet fire to; for the malicious burning of goods in the house does not amount to felony. The houfe muft alfo, in a ftrict fenfe, be the

houfe

houfe of another perfon, otherwife the offence is only a mifdemeanor; but even the burning of a man's own house in a town, or so near to other houfes as to create danger to them, is a great misdemeanor, and may be punished with fine and imprisonment, pillory and finding fureties.

Acceffaries after, ftand upon the fame footing as in other felonies, and are not deprived of clergy by any statute, except after an order of the king in council, as above mentioned; in which cafe, after the time limited in the order is expired, fuch as conceal, aid, abet, or fuccour fuch offender, knowing him to have been fo charged and required to furrender, are oufted of clergy. The trial may be in any county in Eng

land.

MALICIOUS AND FRAUDULENT MISCHIEF. Befide arfon, many other offences may be claffed under this head, fome of which have already been mentioned, as mayhem, fpoiling cloaths, and fome modes of robbery; and others will form feparate objects of confideration. In this divifion, however, fome other malicious injuries will be noticed, as provided against by particular ftatutes, both local and general.

In the Northern Counties. By the 43 Eliz. c. 13. for reftraining incurfions, robberies, burning of towns and houses, in Cumberland, Northumberland, Westmorland, and Durham, and the imprisonment and cruel treating of the inhabitants, unlefs redeeming themfelves by great ranfoms, called black mail, it is enacted, that whofoever fhall without lawful authority take any of the queen's fubjects against their will, and carry them out of the faid counties, or to any other place within any of the faid counties, or detain, force, or imprison them to ransom them; or to make a prey or spoil of their perfons, or goods, upon deadly feud or otherwife: or whofoever fhall be privy, or affifting unto any fuch offence, or procure it to be committed; or whoever fhall take, receive, or carry to the ufe of himfelf, or any other, money, corn, cattle, or other confideration, commonly called black mail, for the protecting or defending of him or them, or his or their lands or goods, from fuch thefts; or whofoever fhall give any fuch money, &c. called black mail, for fuch protection; or fhall wilfully burn, or aid, procure, or confent to the burning of any barn or ftack of corn or grain, within any of the faid counties or places, and fhall be convicted at the aflize or general feffions, fhall be adjudged felons, without benefit of clergy. Authority is given to the court by a fubfequent ftatute of the 18 Chas. II. c. 3. to execute or tranfport for life certain of thofe offenders, known in Northumberland by the name of mofs troopers.

8

Burning

Burning Heath, &c. By 4 & 5 W. and M. c. 23. it is enacted, that no perfon, on any mountains, hills, heaths, moors, forests, chafes, or other waftes, fhall burn between the 24 February and 24th June, any ging, ling, heath, furze, gofs, or fern, upon pain of being committed to the houfe of correction, not exceeding one month, nor less than ten days, to be whipped and kept to hard labour. The 28 Geo. II. c. 19. rather limits than extends the objects of this offence, by omitting the word heath, and ufes the words forests or chafes only, inftead of the more general words in the former act; but it gives a fummary jurifdiction to one or more juftices of the peace, and empowers them to inflict a penalty as well as to imprison.

By Hunters. By the 42 Geo. III. c. 107. if any perfon fhall wilfully course, or hunt, or take in any flip, noose, toil, or fnare, or kill, wound, or deftroy, or fhoot at, or otherwife attempt to kill, wound, or destroy, or fhall carry away, any red or fallow deer, kept or being in the inclofed part of any foreft, chafe, purlieu, or ancient walk, or any inclofed park, paddock, wood, or other inclofed ground, wherein deer are, have been, or fhall be ufually kept, without the confent of the owner, or without being otherwife duly authorized, or fhall be knowingly aiding, abetting, or affifting therein, he fhall be deemed guilty of felony, and tranfported for feven years. The fame offence in any uninclofed part fubjects the offender to a penalty of 50; and if a keeper, or otherwife intrufted with the care or cuftody of deer, to 1ool, the fecond offence, to tranfportation for seven years.

By 16 Geo. III. c. 30. if any perfon carrying any gun, or other fire arms, or any fword, staff, or other offenfive weapon, comes into any foreft, chafe, purlieu, or ancient walk, or into any inclofed park, paddock, wood, or other ground where deer are ufually kept, be the fame inclofed or not, with intent unlawfully to shoot at, courie, or hunt, or to take in any flip, noose, toil, fnare, or other engine, or to kill, wound, deftroy, or take away, any red or fallow deer; it is lawful for every ranger, or keeper, or perfon intrufted with the care of fuch deer, to feize and take from him all fuch guns, fire-arms, flips, or other engines, and all dogs; and if any fuch perfon beats or wounds the ranger or keeper, his fervants or afliftants, or attempts to rescue any perfon in their lawful cuftody, he fhall be adjudged guilty of felony, and tranfported for feven years.

GAME. Under this divifion may be ranked an offence conftituted by a variety of acts of parliament; an offence, which the sportsmen of England feem to think of the highest

import