that the teftimony of the Serang was indifpenfably neceffary to afcertain whether the Weft India voyage came within the contract made in Bengal or not. 1797. FRANCISCO EYRE Ch. J. It may perhaps be true, that these perfons were ill-advised in not applying to the East India Company, who might have taken them under their protection. If the Company had been apprized of the nature of their cafe, they never could have been treated as they have been. As it is, they have put themfelves into the hands of the gentleman who conducts their caufe; and the question for our confideration is, Whether the present application is such an one as we ought to grant for the furtherance of juftice? One of the affidavits on which the rule was granted, ftates it to be the ufage of the country trade of the East Indies for the captain to contract with a Serang, who undertakes to provide men at his own risk, and receives the payment ftipulated by the captain. If this were fuch a contract, founded on this ufage, it might be a contract to be proved by evidence in India. With refpect to the refidence of the witneffes in India, I really thought that the Serang was not only refident there, but had never left it; and if we had not thought fo we never fhould have granted a rule to fhew caufe; but now it turns out, that he has not only been in England, but has lately quitted this country in company with the Defendant. The affidavits on which the rule was obtained did not inform us, what the voyage was on which the wages arofe; we could not fay with certainty that it was even a voyage out of the country trade. I took it for granted, because it is a cafe familiar to me, that the Eaft India Company had chartered a country trader to come to England, and return to Bengal, which is not uncommon under fome particular preffure or emergency. I thought that the contract in queftion might have been conducted in this manner, and that the Serang (always fuppofing him to have been refident in India) was the only person who could give evidence of it. Little did I dream of a cafe in which, under colour of a bargain not unusual refpecting country fhips, these poor men had been dragged to the Weft Indies, and that the wages now fued for arofe on a voyage to and from the West Indies only. This part of the cafe was carefully kept back, and how the Defendant's agents could think themselves at liberty to fupprefs this fact I am at a lofs to conceive. It is pof- f fible to fuppofe that a ufage in the India country trade, or a contract made in India founded upon that usage, could be intended to extend to fuch a tranfaction as this, where the men have been ข. GILMORE. taken to a different destination from that originally in view, and Rule difcharged with cofts The KING v. FULLER. 2 Eaft, 12. 6. Eaft, 419. In an indictment RICHARD Fuller was indicted at the Old Bailey feffions in July on 37 Geo.3. c. 70. it is fufficient to charge an endeavour to incite, & with out specifying the means employed. laft, on 37 Geo. 3. c. 70. (a) The indictment ftated, That Richard Fuller being a wicked and evil difpofed perfon, after the paffing of a certain act of parliament made in 37 Geo. 3. intitled, "An act for the better prevention Under a charge that A. endeavoured to incite B. to mutiny, being a foldier, knowledge of B.'s being a foldier is implied. The word advifedly in such a cafe is equivalent to fcienter. Semb. That if one endeavour comprise two separate offences a count in an indictment charging that endeavour may contain those two offences. (a) The preamble of that act ftates, "That whereas divers wicked and evil-dif pofed perfons, by the publication of written or printed papers, and by malicious and advifed fpeaking, have of late induftrioufly endeavoured to feduce perfons ferving in His Majefty's forces by fea and land from their duty and allegiance to His Majefty, and to incite them to mutiny and dilobedience;" it then enacts," that any perfon who shall malicioufly and advisedly endeavour to feduce any perfon or perfons ferving in His Majefty's forces by fea or land, from his or their duty and allegiance to His Majefty, or to incite or ftir up any fuch perfon or perfons to commit any act of mutiny, or to make or endeavour to make any mutinous affembly, or to commit any traiterous or mutinous practices whatsoever, fhall, on being legally convicted of such offence, be adjudged guilty of felony, and hall fuffer death as in cafes of felony without benefit of clergy." and and punishment of attempts to feduce perfons ferving in His Majefty's forces by fea or land, from their duty and allegiance to His Majefty, or to incite them to mutiny or difobedience," and whilft the faid act continued and was in force, to wit, on, &c. at, &c. feloniously did maliciously and advifedly endeavour to feduce Matthew Lowe, he the faid Matthew Lowe then and there being a perfon ferving in His Majefty's forces by land, from his duty and allegiance to His faid Majefty, contra formam, &c. contra pacem, &c. The 2d count ftated, That he felonioufly did maliciously and advifedly endeavour to incite and ftir up the faid Matthew Lowe, he the faid Matthew Lowe then and there being a perfon ferving in His faid Majefty's forces by land as aforefaid, to commit au act of mutiny, and to commit traiterous and mutinous practices, contra formam, &c. contra pacem, &c. The prifoner was convicted; but objections being taken in arreft of judgment, and referred to the twelve Judges, they were argued in this term (abfente Buller J.) in the Exchequer chamber. Gurney for the prifoner. Ift, The indictment does not state in what manner and by what means the prifoner endeavoured to 1educe Matthew Lowe from his duty and allegiance, as charged in the firft count, and to incite him to commit an act of mutiny, and to commit traiterous and mutinous practices as charged in the fecond count. 2dly, The indictment does not aver that the prifoner knew Matthew Lowe to be a perfon ferving in His Majesty's forces by land. 3dly, The fecond count comprehends two diftinct offences, which ought to have been charged in feparate counts. ift, The preamble of the act recites the mischief for which it provides a remedy; and ftates, that the mifchief had been effected in two ways; by the publication of written or printed papers, and by malicious and advised speaking. In this cafe, which occurred only two days after the act paffed, the mischief was attempted in the firft mode, namely, by publishing and delivering two feditious hand-bills: thofe hand-bills then ought to have been fet out in the indictment, the publication of which to Matthew Lowe was the act done, that conftituted the endeavour charged. The prifoner had not fufficient notice, from this indictment, of the charge he was to encounter. He may have fuppofed that the evidence against him would confift of converfation, and have been prepared to repel that, when in fact it confifted of the publication of papers, which he was not prepared to repel. Or he might have been prepared to meet evidence of the publication of 1797. The KING V. FULLER. papers, and have been surprised by evidence of conversation. Poffibly alfo, the grand jury may have found the bill on evidence of malicious and advifed fpeaking, and the petit jury have given their verdict on evidence of the publication of feditious papers: in which cafe the prifoner will not have had the advantage of the concurrent opinion of the two juries. By analogy to other cafes it will appear, that the certainty which this indictment wants has been held to be neceflary. In indictments for procuring money, &c. by falfe tokens, on 33 Hen. 8. c. I. it is not fufficient to purfue the words of the act, and aver that the Defendant" did falfely and deceitfully obtain poffeffion of money, &c. by means of a falfe token," but the indictment muft ftate what he did obtain, and what falfe token he employed; and for this reafon, that the Defendant may be apprifed of the charge he is to meet. Rex v. Munoz, 2 Str. 1127. On the fame principle the fame rule has been laid down in the cafe of indictments under 30 Geo. 2. c. 24. for obtaining money or goods by falfe pretences. The King v. Mafon, 2 T. R. 581. In Hawk. P. C. lib. 2. c. 25. f. 57. it is faid, "That an indictment finding that "a perfon hath feloniously broken prifon, without fhewing the "caufe of his imprisonment, &c. by which it might appear that "it was of fuch a nature that the breaking might amount to 66 felony is infufficient; alfo indictments against perfons for re"fufing to be fworn conftables after they had been legitimo "modo electi, have been quafhed, for not fhewing the manner "of the election, that it might appear to have been fuch as "obliged the Defendants to have undertaken the office." Rex v. Harpur, 5 Mod. 96. In Davy v. Baker, 4 Burr. 2471. which was an action on 32 Geo. 2. c. 24. for preventing bribery at elections, judgment was arrested because the declaration averred that the Defendant "did receive a gift or reward," without fpecifying what. 2dly, It never could be the intention of the Legiflature to punifh with death an act of this nature, unlefs the man who was guilty of it knew that the perfon whom he was endeavouring to feduce or incite came within the meaning of the ftatute. If it fhould be thought that a feeble prefumption repels this objection as far as regards the fecond count, becaufe it may be faid that a man could not be incited to an act of mutiny, who was not in His Majefty's military or naval fervice, and known to be fo by the prifoner; yet the ift count, which only charges an endeavour to feduce Matthew Lowe from his duty and allegiance to His Majefty, affords affords no prefumption of that kind. Allegiance is equally due from all fubjects, and therefore the prifoner may have done all that is charged in this count, without knowing Matthew Lowe to be a foldier. However, even as to the 2d count, the objection is fatal; for in capital cafes the want of fpecific averments is not to be fupplied by implication. The word "advisedly" means nothing more than deliberately, and cannot be held equivalent to the word "knowingly." 3dly, The act creates four diftinct offences. 1ft, Endeavouring to feduce a perfon ferving in His Majefty's forces by fea or land from his duty and allegiance. 2dly, Endeavouring to incite fuch person to an act of mutiny. 3dly, Endeavouring to incite him to make or endeavour to make a mutinous affembly. 4thly, Endeavouring to incite him to commit any traiterous or mutinous practice. If two of thefe offences can be charged in one count, fo may all four; or even forty, if the ftatute had created fo many, however inconfiftent they might be. Befides, this is a cafe in which the Judges will hold the Crown to a strict definite mode of charge; more fo even than in the cafes cited, as this is a capital felony: perhaps more fo ftill, because this is a temporary ftatute, and a meafure of extraordinary rigour. Abbott on the part of the Crown. The first objection, which is the most material, I fhall confider laft, and proceed to the fecond. It is ftated in both counts, that the prifoner did advifedly endeavour to feduce or to stir up Matthew Lowe being a foldier. Now the word advisedly is at least of as ftrong import as the word fcienter, and that has been held fufficient in fimilar cafes. Hawk. lib.2.c.25.f.67. Rex v. Thomfon, 2 Lev. 208. Rex v. Lawley, Fitz. 122. 263. 2 Str.904. in which laft cafe the words "knowing I. C. to have been indicted," were held equivalent to an averment that he had been indicted; for if he had not, the Defendant could not have known that he had been. And this furnishes another reason for fupporting the last count; for a man cannot advisedly incite a foldier to mutiny, unless he knows him to be a foldier. So in a late cafe of Rex v. Tilly, O. B.S. June 1796, (a) where the indictment charged that the prifoner was aiding and affifting to one Idfwell in an attempt to make his efcape; that was held on a reference to the Judges, a fufficient averment of Idfwell's having attempted to efcape. In indictments for feducing artificers it is never ufual to aver that the Defendant knew the perfon fe 1797. The KING v. FULLER. |