ticket for the payment of the same was made out, and delivered to a person who brought the probate of the will in question. THE Jury found the prisoner Guilty; but the case was reserved for the opinion of the Judges on two questions. FIRST, Whether the muster-book was admissible evidence? SECONDLY, Whether this was in law a forging of the will of Peter Perry? ON the first day of Michaelmas Term, 15 Geo. II. the Judges assembled at Serjeants-Inn-Hall to consider of the case, but their opinion was never publicly given. The prisoners, however, were afterwards executed pursuant to their sentence. 1741. FITZGERALD AND LEE'S THE KING against JAMES HALL. CASE X. executed mur AT the Old Bailey in September Session 1741, James Hall The bodies of was indicted before Sir JOHN STRANGE, Recorder, for petty derers, were, treason, for maliciously killing his master John Penny, Esq. by the Comthe principal of Clement's-Inn; to which indictment the pri- the King's soner pleaded Guilty, and received judgment to die according disposal, and to law. being before mon Law, at therefore the Court could not direct THE deceased was brother to the Dean of Litchfield, and them to be the circumstances under which the fact was committed extremely atrocious, the family applied to the Court, the sentence was passed, requesting that for the sake of example an order might be made to the Sheriff to hang the convict in chains. THE COURT, after a long consideration of the subject, said, that they had no power to make an order for that purpose, and referred the parties to the Council of Regency, the King being then in Hanover; for that the bodies of condemned murderers being entirely at the King's disposal, his Majesty, or his representatives, were alone capable of making any order on this subject. hung in chains. 1741. AN application was accordingly made to the Council of Regency at their first sitting at Whitehall, through the means HALL'S CASE. of the Archbishop of Canterbury and the Duke of Newcastle, who were members of it; and it was at first conceived to be within the province of the Court where the prisoner was tried; but on the opinion which that Court had given being stated to the Council, an order, reciting that it was on the petition of the relations of the deceased, was at length made, directing the convict to be hanged in chains. AND on Monday 14th September 1741 he was, pursuant to the sentence of the Court, executed at the end of Catherine-Street, in the Strand, and afterwards hung in chains at Shepherd's Bush in the County of Middlesex, pursuant to the order of the Council of Regency. By 25 Geo. II. c. 37. all persons found guilty of wilful murder shall be executed on the day next but one after sentence passed, unless the same shall happen to be Sunday, and in that case on the Monday following: the body, in London or Middlesex, to be conveyed to the Surgeons Company to be dissected and anatomized; and in any other part of GreatBritain, to be delivered to such surgeon as the Judge shall direct. It is also enacted, that the sentence shall not only express the usual judgment of death, but also the time appointed for the execution thereof, and the marks of infamy thereby directed for such offenders; and that it shall be in the power of the Judges to appoint the body of any such criminal to be hung in chains.-At a meeting of the Judges in 1752 it was agreed, that the judgment for dissecting and anatomizing, and time of execution, ought to be pronounced in petty-treason, though murder only be mentioned. It was also determined in Michaelmas Term 10 Geo. III. that except in the cases within this Act, the time and place of execution are by law no part of the judgment, 4 Bl. Com. 397; and that in all cases within the Act the judgment for dissection and anatomizing only, and not hanging. in chains, should be part of the sentence; but that if it should be thought adviseable, the Judges might afterwards direct the hanging in chains by a special order to the Sheriff. Foster, 107. 1742. THE KING against FLETCHER. IN the King's Bench, on the 26th of March, 1742, Thomas Fletcher, Richard Nash, and three others, were tried on an indictment on the statute 9 Geo. II. c. 35. CASE XI. A person armed only with a common whip, who aids and as sists other persons armed with fire-arms THE indictment charged, that they with divers other persons unknown, being armed with fire-arms and other offensive weapons, did feloniously assemble in order to be assisting and other of in running uncustomed goods. fensive weapons, in smuggling goods, is not a felon within the statute, 9 Geo. a common whip not being an offensive weapon II. c. 35. s. 10. within the meaning of the THE Jury found a special verdict to the following effect, viz. That the defendant Fletcher, on the 28th of February 1736, was hired by one Johnston, to go with him and six others to Kennington, in the county of Norfolk, to be assisting to them in running and carrying away 900lb. of tea, for which he was to have a reward of half a guinea; that he, in pursuance of such agreement, with such intent, and to resist the officers of the customs did go; that he carried with him a whip of a common size; but that the others had fire-arms and S. C. Stra. other offensive weapons; that they assembled on the first of March, and put the tea on their horses; that the defendant put on his horse 100lb. of tea, and carried it clandestinely to ******, having the said whip in his hand; and that he received the half guinea for so aiding in carrying away the tea. The question was, whether the defendant, who was aiding and assisting armed persons, to the number of three and more in clandestinely running tea, is guilty of felony within 9 Geo. II. c. 35. s. 10. having no other arms but a whip. LEE, Chief Justice, delivered the opinion of the Court. This question depends on the statute 9 Geo. II. c. 35. s. 10. which makes an offence felony which was not so before: therefore it is necessary to determine this case according to the strict directions of the Act, which is the constant rule observed in the construction of a statute which takes away the benefit of clergy. It was so settled on the statute, 1 Jac. I. c. 8. called the Stabbing Act, that none but the person guilty of the fact was guilty of the felony, and not the aiders. This Act. 1166. 1742. FLETCHER'S CASE. doctrine is maintained by Lord Hale, 468: so on the 8 Eliz. 66 (a) It is said in the report of this case, 2 Stra. 1166, that the Court did not determine it upon the first argument, but gave SIR DUDLEY RIDER, the Attorney-General, time to consider of it; and that he, upon conference with SIR JOHN STRANGE, the Solicitor-General, declined to argue it; and that the prisoner had judgment and was discharged. CASE XII. THE KING against ROBERT Rhodes. On an indict- AT the Old Bailey April Session 1742, Robert Rhodes was ment for forg- indicted before MR. BARON REYNOLDS, for forging a cering a Seaman's will, the mus- tain paper, partly written and partly printed, signed with ter-book of the Navy-Office is good evidence to prove the identity of the supposed testator. the name of John Thompson, purporting to be the last will and testament (a) of the said John Thompson, a seaman, late on board his Majesty's ship Flamborough, deceased. Ir appeared by the evidence of the Clerk of the TicketOffice in the Navy-Office, that it was customary for the Captains of men of war to transmit accounts of their crews to the Navy-Office as frequently as possible, and that these accounts are entered regularly in muster-books, containing the names of all who are living, dead, or have run away. The MUSTER-BOOK belonging to the Flamborough was produced, in which there was this entry: "John Thompson, an able "seaman, died 22 August 1739, at Turtle-Bay, on board "the Flamborough." FIRST POINT. The prisoner's Counsel contended, that as the prisoner was charged with forging the will of Thompson, it was incumbent on the prosecutor to prove by the best evidence the nature of such a fact would admit of, that the testator was dead; and that the best evidence of that fact was by some one of the many persons who were on board the ship, and not by the accounts of the Captain or other officers, who might by accident or design return the man dead when he was really alive. THE Counsel for the prosecution answered, that the objection was incongruous on the part of the prisoner, for that he had actually proved the will in Doctors' Commons, and received the wages at the Navy-Office by virtue of the probate, which implied an acknowledgment by him that Thompson was dead; but that, exclusive of that reason, it was the constant course and uninterrupted practice of the Court to admit the entry in the muster-book, after it had been authenticated by the clerk who signed it, as full evidence of the fact. 1742. RHODES'S CASE. THE Court over-ruled the objection, and cited the case of Fitzgerald and Lee (1), in Mich. Term, 15 Geo. II. where (1) See ante, this point arose, and a muster-book was admitted as evidence P. 20. of the same kind of fact (b). (a) See 2 Bl. Rep. 787, 790. (6) At the Old Bailey, in September Session 1787, Richard Ramsbottom |