1776.

possibility of mistaking it for any other word in the English Language (a); and it was held that the variance was not maHART'S CASE. terial (b).

(a) The learned Judge said, "if the word had been written receiv'd or recev'd, the e in the one instance, and the i in the other, must have been necessarily understood.

66

(b) See also Strange, 889, where on "nul tiel record" pleaded segrave," for "seagrave" was held no variance, quia idem sonans.-But Shakespeare and Shakepear are not idem sonans, 10 East's Term Rep. 83.

CASE LXXIX.

sive evidence against an

THE DUCHESS OF KINGSTON'S CASE.

In the House of Peers, April 1776.

A sentence of ELIZABETH CHUDLEIGH, daughter of Colonel Thojactitation is mas Chudleigh, of Chelsea College, was married to the Honot conclunourable Augustus John Hervey on the 4th of August 1744, at the parish-church of Lainston in the county of Southamp ton, as appears by the register of that place. On 9th November 1768, she instituted a suit of Jactitation of Marriage against Mr. Hervey in the Consistory Court of the Bishop of London; and on the 10th February 1769, sentence was pronounced, "That the said Elizabeth Chudleigh was and now "is a Spinster, and free from all matrimonial contracts and

indictment of
bigamy for
its validity
may be im-
peached, as
having been
obtained by
fraud.
A peeress
convicted of

clergyable fe-
lony shall be
discharged
without burn-
ing or impri-

sonment.

S. C. 1 East, 468, 469.

espousals with the said Augustus John Hervey." On the 8th March 1769, Miss Chudleigh was married, by special licence from the Archbishop of Canterbury, to EVELYN PierPOINT, Duke of Kingston. And on the 9th January 1775, an indictment of polygamy was found at Hicks's Hall, "That "Elizabeth, the wife of Augustus John Hervey, Esq. of "Hanover-square, in the county of Middlesex, being then "married, and then the wife of the said Augustus, feloniously "did marry and take to husband EVELYN PIERPOINT, Duke "of Kingston, the said Augustus John Hervey being then " alive, &c."

On the 18th May 1775, a writ of Certiorari was granted by Lord Mansfield to remove the proceedings into the Court

1776.

of King's Bench; but this writ was superseded; and on 11th November 1776, another writ of Certiorari, signed "YORK," issued to remove the proceedings before the King in Parlia- DUCHESS OF

ment.

ON the 15th April 1776, a commission was directed to Henry Earl Bathurst, Chancellor, appointing him Lord High Steward of Great Britain, and authorizing him to try the said indictment. The Lords came on the same day from their own house into the court erected in Westminster-Hall; and Her GRACE, who had been admitted to bail, appearing at the bar, was desired to kneel, and in that posture she was arraigned by the Lord High Steward. The indictment was then read by the Clerk of the Crown, to which the prisoner pleaded Nor GUILTY.

THE DUCHESS OF KINGSTON immediately submitted to the Court, that as her supposed marriage with Mr. Hervey was the ground of the present charge against her, the sentence of the Consistory Court, pronouncing her free from all matrimonial contracts and espousals with him, remaining unreversed and unimpeached, ought to be conclusive; and that no other evidence ought to be received or stated against her respecting such marriage.

KINGSTON'S
CASE.

THE whole of the proceedings in the Ecclesiastical Court, from the libel to the sentence, were read; and the question, Whether the sentence was conclusive or not, was very elaborately argued by the Counsel on each side (1); but the Lords (1) For the ordered the trial to proceed, and after a hearing of four days, Crown, pronounced the prisoner GUILTY.

In consequence of this verdict, several questions were submitted to the consideration of THE TWELVE JUDGES, and the following points were resolved.

Mr. Att. Gen.
Mr. Sol. Gen.
Mr. Dunning,
Dr. Harris.
For the pri-

soner,
Mr. Wallace,
Mr. Mans-

First, THAT a sentence of the Spiritual Court against a field, marriage, in a suit for jactitation of marriage, is not conclu- Dr. Calvert, Dr. Wynne sive evidence, so as to stop the Counsel for the Crown from proving the said marriage in an indictment for polygamy. Secondly, THAT, admitting the sentence to be conclusive upon such indictment, the Counsel for the Crown may be

1776.

DUCHESS OF
KINGSTON'S

CASE.

admitted to avoid the effect of such sentence, by proving the same to have been obtained by fraud or collusion.

Thirdly, THAT by the statute 1 Edw. VI. c. 12. s. 16. a Peer, convicted of a clergyable felony, is intitled to his imme2 Hawk. 475. diate discharge, without reading or burning in the hand, or being liable to imprisonment by the 18 Eliz. c. 4. s. 3. AND THAT this privilege given by statute being such as may be enjoyed by a Peeress, is by operation of law communicated to her, and puts her in the same situation as a Peer. The consequence of which is, that a Peeress convicted of a clergyable felony, praying the benefit of this statute, is not only excused from capital punishment, but ought to be immediately (1) See 5 Ann. discharged, without being burnt in the hand (1), or liable to any imprisonment.

c. 6. and the

19 Geo. III.

C. 74. S. 3.

THE prisoner was accordingly discharged.

CASE LXXX.

If, on a sudden quarrel be

tween two

parties of

THE KING against JOHN BROWN.

AT the Summer Assize in 1776, for the County of Kent,
John Brown was tried and convicted before MR. JUSTICE
GOULD, for the wilful murder of John Moncaster.

keelmen and soldiers, the blow intended for an individual of the one party would, if death ensues, have amounted only to manslaughter, it will be only manslaughter, though by accident it kill another.-S. C. 1 East, 231, 245, 274.

3 Inst. 55.

4 Bl. Com.

186, 191.

5 Burr. 2793.

Foster, 278.
Ld. Ray.

It had been argued by the prisoner's Counsel, that the of

1 Hale, 466. fence was only Manslaughter, and the learned Judge concurring in that opinion had so directed the Jury; but they thought fit to find the prisoner guilty of murder, and persisted in their verdict. Sentence of death was accordingly passed upon him; but he was reprieved from execution, until the evidence which had been given against him was submitted to the consideration of THE TWELVE JUDGES; and on the first day of the ensuing Michaelmas Term, the case was stated at Serjeants'-Inn Hall, to the following effect:

1496.
Stra. 481.
Cowp. 832.
r Hawk. P. C.

C. 31. s. 44.

THE CASE. The prisoner was a common soldier in a regiment of foot commanded by Captain Peter Hunter, and was, at the time mentioned in the indictment, on a recruit

ing party at Sandgate. In this character he had behaved
during the course of five years with great propriety as a sol-
dier, and with good-nature and humanity as a man. On the
26th June 1776, he went with several of his comrades into a
public-house in Sandgate, kept by one Meggison, to drink.
This was between one and two o'clock in the morning. A
quarrel arose soon after between the soldiers and a number
of keelmen who were in the house. They went out into the
street, and a violent affray ensued, which occasioned a tumult
of men, women, and children. Between two and three o'clock
one of the soldiers was seen stripped, and a party of five or
six came up, fell upon him, and beat him cruelly. A woman
called out from a window, "You rogues! you will murder
"the man!" The prisoner, who had before, with his sword
in the scabbard, driven a part of the mob down the street,
returned; when seeing his comrade thus used, he drew his
sword, which he brandished in the air, and desiring the mob
to stand clear, said, "There it is, I'll sweep the street."
The mob pressed in upon them, and he struck at them with
the flat side several times. The mob then fled, and he pur-
sued one of them down the street to a place called THE
SWELL. The soldier who was stripped got up, and ran into
a passage to save himself. The prisoner returned, and asked
if they had murdered his comrade. The people came back
and assaulted him several times, and then ran from him. He
sometimes brandished his sword, and then struck fire with the
blade of it upon the stones of the street, calling out to the
people to keep off. At this time the deceased, who had a
blue jacket on, and might be mistaken for a keelman, was
going along about five yards from the soldier; but, before he
passed, the soldier went to him, and struck him on the head
with his sword. The deceased ran some paces and fell down,
rose again, ran a few paces further out of the prisoner's
sight, fell down again, and immediately expired. The mob
ran into the passage near THE SWELL. The soldier said he
had been badly used; and it was the opinion of two wit-
nesses, that "if he had not drawn his sword, they would
"both of them have been murdered."

1776.

BROWN'S
CASE.

1776.

CASE LXXXI.

THE JUDGES were clearly of opinion, That it was only manslaughter.

THE KING against WILLIAM Akehurst.

The supposed AT the Summer Assize for the county of Sussex, in the year 1776, William Akehurst was tried before LORD MANSFIELD, for forging a promissory note, payable to the said William Akehurst.

drawer of a promissory note, uning dorsed and not payable to order, having received a general release from the

holder, is a competent witness to prove the forgery. S. C. 2 East,

1003.

It appeared in evidence, that the note was not made payable to order; that the prisoner had paid it away to a person in part discharge of a debt which had been long contracted; but that he had not indorsed it.

THE holder of the note gave a general release to the drawer of it, whose name was charged to be forged; and the question was, Whether such supposed drawer was, under this release, a competent witness to prove the forgery?

LORD MANSFIELD, after the point had been debated at the bar, received the evidence, and the prisoner was convicted (a). THE prisoner received judgment, but was not executed.

(a) See Dr. Dodd's case, Old Bailey February 1777, post. 157, where the Earl of Chesterfield, the supposed obligor of the forged bond, was admitted to disprove his signature, on producing a release from Mr. Fletcher, the supposed obligee; and Rex v. John Taylor, Old Bailey October Session 1779, post.

CASE LXXXII.

for perjury at

THE KING against JOHN ALFord.

An indictment THIS was an indictment at the Summer Assizes for Soan Assize may merset 1776, for perjury, in a cause which had been tried at allege the oath to have been a previous Assize. In the caption of the indictment the taken before names of both the Justices then in the commission were menone of the tioned; and then it went on," And the Jurors aforesaid, "now here sworn, on their oath aforesaid do further present, names of both" that at the said trial so then and there had as aforesaid, are inserted in "John Alford, &c. appeared as a witness upon the said trial,

Judges in the

commission, though the

the caption.