Act of February 11, 1819-January 1, 1820. R. C. ch. 37. like manner ascertained, certified and paid, as is herein above provided, in case of injury done to impressed property in the public service.' Jan. 8, 1807, c. 95, ed. 1808. 3. 3. Whenever the fields, woods, or other real property of any person shall be injured, in consequence of the occupation thereof by the militia, or other troops, in actual service of this state, such person shall receive a reasonable compensation for the injury, to be ascertained as follows: one discreet person, being a freeholder, shall be appointed on the part of the commonwealth, by the commanding officer of the corps, or on his failure to do so, by the quarter-master general, or some other officer authorized by him; and one other discreet person, being a freeholder, in no manner interested in the question, to be submitted to him, and in no wise connected with the person appointing him, shall be chosen by the person whose property is injured. The two persons so chosen shall appoint a third freeholder, in like manner disinterested and unconnected. The persons so chosen shall take an oath faithfully and impartially to discharge their duty, which shall be certified to the following effect, that is to say: county, to wit: 1, A. B., justice of the peace for county, do hereby certify, that C. D., E. F. and G. H., the persons chosen to assess the damages sustained by J. K., in consequence of the occupation of his real property in the county of viz: (here insert the description of the property,) by troops in the service of the state of Virginia, under the command of have this day made oath before me, that they will well and truly, and without partiality, according to the best of their skill and judgment, assess the damages sustained by the said J. K., in consequence of such occupation." Given under my hand, this day of A. B. The persons thus chosen and qualified, shall go upon the property so alleged to be injured, and upon their own view, and upon such other evidence as may be offered them, shall ascertain, as nearly as they can, the damage really sustained, and grant a certificate thereof, to the following effect: We, C. D., E. F. and G. H., chosen on behalf of the commonwealth, and on behalf of J. K., to assess the damages sustained by the said J. K., in consequence of the occupation of his real property, in the county of viz: (here insert a description of the property,) by certain troops in the service of the state of Virginia, commanded by do hereby certify, that after being duly sworn, as will appear by the annexed certificate, we went on the property aforesaid, and after viewing the same, have ascertained the damage really sustained by the said J. K., to be according to the best of our skill and judgment. Given under our hands, this day of C. D., E. F., G. H. If the persons so chosen should not be able to agree, others may be chosen in the same way. Any certificate granted, as aforesaid, accompanied by the certificate of the oath aforesaid, and certificates of the proper appointment of the persons in pursuance of this act, shall entitle the person in whose favour it is granted, to receive the amount thereby ascertained, out of any money appropriated to military purposes, to be paid in the manner in which the executive shall direct. Jan. 10, 1815, c. 5. 4. § 4. Any officer having the command of any corps or detachment of militia, or other troops, in the actual service of the state, when he shall be unable to procure for them supplies of transportation, fuel, forage, rations, camp equipage or artillery horses, by contract, or by other means provided by law, shall be authorized to impress for the use of such corps or detachment, so much transportation, fuel, forage, rations, or camp equipage, and so many horses for temporary service in the artillery, as may be indispensable for the use of the said corps, and to grant a certificate thereof, and of the value, to the person to whom it may belong, or his agent. And if such person shall be Act of February 11, 1819-January 1, 1820. R. C. ch. 37. dissatisfied with the value so certified, and refuse to accept the certificate, he may cause the value thereof to be ascertained in the manner provided in the preceding section for the assessment of damage to real property. And the certificate so obtained, either from the commanding officer, or from the persons so chosen, shall be paid in the manner above prescribed: Provided, That in ascertaining the value of any waggons and teams, and other things, impressed for transportation, and of artillery horses impressed for temporary service, not only their value, but their reasonable hire per day, shall also be ascertained; and if they are returned to the owner, such reasonable hire only for the time that they are detained from him, together with a reasonable compensation for any injury done them, to be ascertained in like manner, shall be paid to him. Ibid. 5. § 5. Any person authorized to send expresses to the executive, or militia, in time of war, invasion or insurrection, or when there shall be imminent danger of invasion or insurrection, shall be authorized, when horses cannot otherwise be procured therefor, to impress, and by written authority under his hand, to empower the express employed by him, to impress so many as may be essentially necessary; the value and hire of which shall be ascertained, and paid for, in the manner above provided in cases of other impressed horses. Ibid. (a) Act of March 1, 1819-January 1, 1820. R. C. ch. 106. 1. 17. If any person whatsoever, since the eighth day of December, one thousand seven hundred and eighty-eight, hath, or at any time hereafter, shall marry within the following degrees, that is to say: If the son hath married or shall marry his mother or step-mother; the brother his sister; the father his daughter, or his son's daughter, or his daughter's daughter; or if the son hath married or shall marry the daughter of his father, begotten and born of his step-mother; or the son hath married or shall marry his aunt, being his father's or his mother's sister; or hath married or shall marry his uncle's wife; or the father hath married or shall marry his son's wife; or the brother hath married or shall marry his brother's wife; (4) or any hath married or shall marry his wife's daughter,(1) or his wife's son's daughter, or his wife's daugh ter's daughter, or his wife's sister;(2) or if, since the twenty-fifth day of Feb (4) Marrying a brother's widow is an offence within this act. Edmund and Kiturah Perryman's case, 2 Leigh, 717. (1) Blackmore v. Brider, 2 Phill. R. 359. (2) "Hereafter, if a man shall marry his deceased wife's sister, he shall be deemed guilty of a misdemeanour, to be prosecuted by information or indictment in the superior court of law, for the county in which he shall reside; and on conviction thereof, the parties shall be punished by such fine or imprisonment, or both, as the jury empannelled to try such offence may determine, any law, usage or custom, to the contrary Act of March 1, 1819-January 1, 1820. R. C. ch. 106. ruary, in the year eighteen hundred and eighteen, any man hath married, or, at any time hereafter, any man shall marry his step-daughter, or his brother's daughter, or his sister's daughter, (3) or the wife of his brother's or sister's son; every person or persons so unlawfully married, shall be separated by the definitive sentence or judgment of any superior court of law within this commonwealth, as hereinafter provided. From May 1730, c. 2, 4 Stat. Larg. 245; Oct. 1788, c. 32, 12 Stat. Larg. 688; 1792, c. 104, § 13, R. C.; Feb. 25, 1818, c. 18. 2. § 18. The superior courts of law shall have jurisdiction over all offences against the provisions herein contained, inhibiting marriages within certain degrees of relationship; [which were committed subsequent to the twenty-fifth day of February, in the year eighteen hundred and eighteen, (Mar. 3, 1819, c. 29,)] and the judges shall constantly give in charge to the grand juries of their courts respectively, the provisions aforesaid. If any person or persons, resident within this state, for the purpose of eluding the provisions aforesaid, shall go out of the limits thereof, and contract a marriage within the said inhibited degrees, and the persons so married shall afterwards return, and be resident within this state, cohabiting together as man and wife, such persons may be proceeded against, separated and punished, in the same manner, as if the marriage had been solemnized within this commonwealth. Every offence against the aforesaid provisions of this act, wheresoever the marriage was solemnized, shall be cognizable in the superior court of law in which the offenders may reside. It shall be the duty of the attorneys prosecuting on behalf of the commonwealth, in the said courts, upon information made to them of any marriage contrary to the provisions aforesaid, to prosecute the offenders by information or indictment; and the proceedings in the said courts, in the cases coming within the purview of this act, shall be according to the accustomed course of the law; and, in all trials upon any such information or indictment, satisfactory proof of habitual cohabitation as man and wife, shall be deemed conclusive evidence of any marriage charged in such information or indictment. And the said courts shall and may proceed to give judgment, and to declare the nullity of such marriage, and moreover may punish the parties by fine; and, if the court see fit, may cause the parties to give bond with sufficient security, that they will not cohabit hereafter, in such penalty as the said court shall judge reasonable: Provided always, That no punishment by fine shall be imposed on any person, until the same shall have been assessed by a jury, duly impannelled at the bar of the said court: And provided also, That nothing herein contained shall be construed to render illegitimate the issue of any marriage so annulled. May 1730, c. 2, 4 Stat. Larg. 244; 1788, c. 32; 1792, c. 104, R. C.; Feb. 25, 1818, c. 18. notwithstanding." Act of March 2, 1827, Ses. Acts 1826-7, c. 24, p. 22, Sup. R. C. ch. 161, p. 220. See the elaborate case of Hill v. Good, Vaughan's opinion, 302-329. (3) Hutchins v. The Commonwealth, gen'l ct. June T. 1823, 2 Virg. Cas. 331, Act of February 26-March 1, 1819. R. C. ch. 169. 1. § 41. [This section, requiring particular description of defendant's estate, or mystery, repealed and therefore omitted. See act of March 8, 1827, Ses. Acts 1826-7, c. 30, § 3, p. 27, Sup. R. C. c. 227, § 3, p. 281.] See 7 Geo. 4, c. 64, § 19.(a) 2. § 42. In any inquisition or indictment, the words, force and arms, or any particular words, descriptive of any particular kind of force and arms, shall not, of necessity, be put or comprised. Ibid. See 7 Geo. 4, c. 61, $20. 3. § 43. No indictment for high treason, misprision of treason, murder, or other felony or offence, whatsoever, shall be quashed for the omission of the name of any parish, town, ville or hamlet, within any county of this commonwealth; nor shall such omission, after conviction on such indictment, be any cause to stay or arrest judgment; nor shall any judgment on such indictment be liable to be reversed on a writ of error, by reason of such omission. 1786, c. 16, 12 Stat. Larg. 271; 1792, c. 74, R. C. [Indictments shall conclude, Against the peacet and dignity of the commonwealth. Const. Virg. § 18.] 4. § 45. No information(b) for a trespass or misdemeanour, shall be filed in (a) See 1 Hen. 5, c. 5, and 2 Inst. 665670, and 1 Starkie's Treat. on Crim. Plead. 44-48. Plea in abatement that defendant is a labourer, and not a yeoman, sustained. Com. v. Clark, gen'l et. June T. 1724, 2 V. C. An indictment charging an assault, is abateable by reason of no addition being made to the name of the defendant, of his estate, degree or mystery. The addition must be a true one; if 'tis not, it may be traversed by plea in abatement. Plea that defendant is yeoman and not labourer, is valid. Com. v. Lewis, gen'l ct. Nov. T. 1823, 2 Virg. Cas. 374. An indictment for a common law felony must contain a "contra pacem." So must an indictment for stealing articles, the stealing of which is made felony by statute; laying the offence to have been against the form of the statute will not supply the defect. Cook's case, Russell and Ryan's Cro. Cas. 176. See 7 Geo. 4, ch. 64, § 20. (b) When the grand jury make a presentment for a misdemeanour, and upon a summons to answer, the defendant fails to appear, and the information is filed, the defendant must be summoned to answer the information; and if he is charged with an offence to which an infamous or corporal punishment is affixed or may enure, the court may, in its discretion, award a capias in the first instance. Com. v. M'Clenagan, Virg. Cas. 155; Com. v. Goode, gen'Ï ct. June T. 1820. On indictments and presentments of an inferior nature, after two venire faciases returned not found, a capias should be awarded. Com. v. M'Clenagan, Virg. Cas. 156. On an indictment of a grand jury for an assault and battery, charging the offence with certainty, it is not irregular to summon the defendant to answer the presentment, and to try the cause on the presentment without filing any information. Commonwealth v. Towles, Leigh, 743, gen'l ct. July T. 1835. The same certainty is requisite in an information that is required in an indictment. Haw. B. 2, c. 26, § 4; Ld. Mansfield, in Rex v. Wilkes, 4 Burr. 2556. Implications can never, without danger, be admitted in criminal prosecutions, whether they be by information or indictment. Roane, J. in Newell's case, 2 Wash. 92. This is certain, that in an information for any offence at common law, or upon a statute, the same certainty and precision are required as in an indictment. Pr. Story, J. in United States v. Smith, 2 Mason, 146. As to the precise statement of the "year and day," see the opinion of Story, J. in United States v. Smith, (in which the autho Act of February 26-March 1, 1819. R. C. ch. 169. any court, but by express order of the court, entered on record; nor unless the party, supposed to be culpable, shall have failed to appear and shew good cause to the contrary, having been required to do so by a summons, appointing a convenient time for that purpose, served upon him, or left at his usual place of abode; (2) and the name and surname of the prosecutor,(4) and the town or county in which he shall reside, with his title or profession,(1) shall rities are reviewed and distinguished,) 2 A summons to answer a presentment "for What offence may be prosecuted by information. Com. v. Collins, 9 Leigh, 666. A felony cannot be prosecuted by information. Com. v. Barrett, 9 Leigh, 665. (2) The omission to file an information at the term of the superior court at which the rule is made absolute, and leave given to file it, is no discontinuance of the prosecution. The Com. v. Varner, gen'l ct. June T. 1817, 2 Virg. Cas. 62. (4) An indictment [for gaming] found on the testimony of "a witness called on, sworn and sent to the grand jury by the court, on motion of the commonwealth's attorney," is valid, though there be no prosecutor's name written at the foot of the indictment, and though the bill of indictment was not sent to the grand jury, in consequence of a previous presentment made by a grand jury on the information of any two of their own body, or on the testimony of a witness called on either by the court or grand jury. The 45th and 46th sec. apply to the case of a volunteer witness, who believing that himself, &c. has been injured, undertakes of his own accord to invoke the justice of his country. To protect the citizen against malicious and groundless prosecutions, the volunteer must be named as prosecutor. The 47th sec. was enacted to protect involuntary witnesses, called on by the functionaries of the law, courts and grand juries, to testify as to offences injurious to public morals, and to the public peace, in the punishment of which no individual feels sufficient interest 2.6+7 upas Set 1826+7 1281 to come forward as prosecutor or informer. A presentment, in a large sense, is an indictment; for every indictment is a presentmeut. The very words of the proviso include an indictment, made on the testimony of a witness called on by the court or the grand jury. The reason of the enactment includes the case of an indictment; and no reason can be assigned why an involuntary witness, on whose compulsory evidence an informal presentment is made, should not be deemed a prosecutor; not liable to costs that does not apply to a witness, on whose compulsory evidence a formal and regular presentment [an indictment,] is made. Wortham v. The Commonmealth, (in error,) from the hustings court of Richmond. "This law cannot properly be denominated a penal statute; it neither defines nor creates any criminal offence, nor prescribes a punishment for one. how certain proceedings shall be carried on It merely directs in trespass and misdemeanours, preparatory to their introduction into court. There is no reason why, in construing such an act, we should stick to the letter, nor why we should not carry into effect the obvious intention of the legislature." Gen'l ct. Nov. T. (26th Nov.) 1827, 5 Rand. 669. It cannot be doubted that it is within the power of every conservator of the peace to recognize a person who has committed an outrage on the peace of society, to appear before the next court to answer an indictment to be preferred against him, and to recognize the witnesses also to appear and testify. In this case, the bill of indictment is sent to the grand jury with the witness so recognized; not in the predicament of informers, but of involuntary witnesses, protected by the 47th sec. that the witnesses be first sent to the grand jury to enable them to make a presentment, on which to ground a bill of indictment. For this would be to procrastinate the proceedings of the courts, and to harass the grand jury with a double examination, without any reason whatever. The legislature could not have designed that this circuitous route should be taken, when the direct path lay before them. Ibid. 'Tis not necessary for a trespass or misdemeanour, alleging (1) A plea in abatement of an indictment that the prosecutor is not a labourer, but an husbandman, is bad on demurrer. Haught v. Com. gen'l ct. June T. 1815, 2 Virg. Cas. 3. What words are sufficient to shew that one is a prosecutor. Ibid. See ante, No. 1. Y |