Act of February 26-March 1, 1819. R. C. ch. 169. be written at the foot of the information, (3) before it be filed, and of every bill of indictment, for any trespass or misdemeanour, before it be presented to the grand jury; except as hereinafter excepted. Feb. 1752, c. 13, 6 Stat. Larg. 246; Oct. 1786, c. 64, 12 Stat. Larg. 355; 1792, c. 74, R. C. [No. 6.] 5. 46. If the grand jury, to whom such bill of indictment last mentioned is preferred, shall not find the bill; or, if the defendant shall appear to shew cause against the filing of such information, or to answer such information or indictment, and the prosecutor(4) shall not proceed further; or, if the defendant shall be found not guilty by the petit jury, or a judgment shall be given for him, he shall recover his costs against the prosecutor, (except as hereafter excepted,) with an attorney's fee if one be employed, and the allowances to witnesses, to be taxed in the bill of costs, and may have execution for them, as the manner is in civil cases. Feb. 1752, 6 Stat. Larg. 246; Feb. 1752, 6 Stat. Larg. 426; Nov. 1766, c. 38, 8 Stat. Larg. 256; 1792, c. 74, R. C. [See ante, p. 135, No. 11, note *.] 6. § 47. Provided however, That when a presentment(c) shall be made of any offence by the grand jury, upon the knowledge of two of their own body, or when a presentment shall be made, on the testimony of a witness, called on, either by the court, or by the grand jury, to give testimony concerning the same; (2) then, neither the informing grand jurors, nor the witness so called on, (1) shall be liable to costs. 1795, c. 188, § 2. And provided also, That where an information shall be filed by the attorney for the commonwealth, on the testimony of a witness called on by the court, or where an information shall be filed, or a bill of indictment(4) sent to a grand jury, in consequence of a previous presentment(d) by a grand jury, made on the information of any two of their own body, or the testimony of a witness, called on either by the court or the grand jury; in such cases, it shall not be necessary to write the name of the informing grand jurors, nor of the witness, at the foot of the information or indictment; nor shall they, or either of them, be considered as prosecutors nor as liable to costs. Jan. 1802, c. 93, c. 303, R. C.* 7. § 24. In all trials for treason or felony, (e) the prisoner shall have a copy of the indictment, and the pannel of the jurors, who are to try him or her, (3) Judgment will not be arrested after verdict against defendant, though the name of the prosecutor be not written at the foot of the information. Com. v. Chalmers, 2 Virg. Cas. 76. (4) See preceding note (4). (c) (d) The difference between an indictment [a bill of] and a presentment is this: an indictment is drawn in due form of law, and delivered to the grand jury. A presentment originates with the grand jury, and contains mere notes for the court, out of which a bill of indictment is framed by the public prosecutor, which is returned to the grand jury, in the same manner, as bills which are originally preferred by him to them. Wilson's Wks. 3 vol. 145. (2) Judgment will not be arrested, though the presentment does not state whether the witnesses, on whose evidence it was found, were called for by the grand jury or sent to them by the court. Com. v. Chalmers, 2 Virg. R. 76. (1) After verdict, the prosecutor will not be permitted to shew by parol evidence that he was called on by the grand jury, and did not voluntarily give the information. The Com. v. Dove, gen'l ct. Nev. T. 1815, 2 Virg. Cas. 29. * Preamble to act Jan. 28, 1802, c. 98, Ses. Acts, p. 15: "Whereas, doubts have arisen whether any information can be filed, or indictment for a trespass or misdemeanour be sent to a grand jury, unless the name of a prosecutor be written at the foot of such information or indictment; for removing thereof." (e) "It is said, that by the common law a copy of the indictment is always denied in eases of treason or felony." Haw. B. 2, c. 39, § 13, citing 1 Lev. 68; Moor, 666; Show. 131; 2 Hale, 236; and see 1 Chitty's Crim. Law, ch. 10, p. [403] and note (a). In offences inferior to felony, it seems that the right of having a copy of the indictment has at all times been admitted. 1 Chitty's Crim. Law, [404], and authorities cited. Act of February 26-March 1, 1819. R. C. ch. 169. whensoever he or she shall require it, before trial or sentence. 57, 12 Stat. Larg. 342; 1792, c. 74, R. C. Oct. 1786, c. 8. § 44. After the verdict of twelve men, no judgment on any indictment or information, for felony, or any other offence whatsoever, shall be stayed or reversed, for any supposed defect or imperfection in any such indictment or information, so as the felony or offence therein, charged to have been committed or done, be plainly and in substance set forth with convenient certainty, so as to enable the court to give judgment thereon, according to the very right of the cause; any former law, custom or usage, to the contrary notwithstanding.(f) 7 Geo. 4, c. 64, § 20; Jan. 24-April 1, 1804, § 6, ed. 1808. 232. See United States v. Curtis, 4 Mason, (f) An indictment need not shew on its face when it was found. Haught v. Com. gen'l ct. June T. 1815, 2 Virg. Čas. 3. After verdict, judgment ought not to be arrested, for want of laying in the indictment, information or presentment, an express day, or for not alleging expressly that the offence was committed within the jurisdiction of the court, when the offence is expressly averred to have been committed in the county, over which the court hath jurisdiction. Judges Nelson, White, Stuart, Coalter and Evans, gen'l ct. June T. 1810, Virg. Cas. 3. See Haw. B. 2, c. 25, § 60. The omission to charge that the offence was committed "within the jurisdiction of the court," the county itself being named, is cured by verdict. The caption of the indictment setting forth the county is sufficient, without entitling it of the superior court. Taylor v. The Com. gen'l ct. Nov. T. 1817, 2 Virg. Cas. 94. See Hart's case, 6 Car. & Payne, 123. Though the name of the county be left blank in the margin of an indictment for a misdemeanour, thus, "Virginia, county, to wit:" it will not vitiate, if the county be stated in the body of the indictment. William Tefft's case, 8 Leigh, 721. This statute of Jeofails was not intended to introduce a carelessness or laxity in pleading, but merely to cure those defects which the overnicety of the courts had introduced into the common law, and which did not put the rights of the commonwealth or of the accused into jeopardy. Therefore, the neglect to lay in an indictment for larceny, to whom the articles belonged, or that they belonged to some persons unknown, is a fatal defect not cured by this act. Such an omission is of matter of substance, and may be very important to the accused, both in making his defence, and on a plea of auterfois acquit or convict. Barker v. Com. gen'l ct. June T. 1817, 2 Virg. Cas. 6. Indictment at common law, charging defendant with rescuing property that had been distrained by a sheriff for public dues from a bailee, to whose safe-keeping the sheriff had committed it, without charging that the defendant knew in what right the bailee held it: Held, defective, for not averring such knowledge, and defect not cured by this statute. Israel's case, 4 Leigh, 675. See Scott's case, Russ. & Ry. 13; Gaby's case, Ib. 178; and Jacobs et al. v. The Com. 2 Leigh, 709, gen'l ct. June T. 1830; Lambert's case, 2 Deac. C. L. 1668. An indictment which charges a larceny of bank notes, "of the value, &c. of the money, goods and chattels of one G. F., and from the said G. F." is a sufficient averment of property in the said notes in G. F. the person from whom they were stolen, after verdict; for the words, "the money, goods and chattels of," may be rejected as surplusage. Com. v. Moseley, gen'l ct. June T. 1819, 2 Virg. Cas. 154. If the indictment contains three counts, and the jury convict the prisoner on the second, finding nothing as to the first and third, the verdict will be sustained, and judgment will be entered of conviction on the second count, and acquittal on the first and third counts. Gen'l ct. Nov. T. 1820, 2 Virg. Cas. 235, The Commonwealth v. Bennet. The defects of some of the counts in an indictment does not affect the validity of the rest; and if any count is good, judgment may be given against the accused. Kirk v. Com. 9 Leigh, 627. Where a verdict finds a prisoner guilty upon some of the counts in an indictment, saying nothing of others, judgment of acquittal should be entered upon those counts of which the verdict takes no notice. Ibid. An indictment (described in the record of the finding, and in the entry of the arraignment, as an indictment for forgery,) contains 1st, a count for forging and counterfeiting a note, and 2d, a count for feloniously using and employing as true, a counterfeit note; verdict finds the prisoner guilty of forgery, as alleged in the indictment: Held, an acquittal must be entered on the second count. Page v. Com. Ibid. 683. An indictment charged E. and F. with having counterfeited bank notes, the tenor of which were not set forth, nor were they described in any other way, than merely by reference, as being annexed to said indict ment. 'Twas objected in arrest of judgment, that the indictment was too uncertain to justify a judgment thereon against the prisoners: Held, that, whatever might have been the result of a motion to quash, after verdict no objection could be sustained; that the felony charged in the indictment was plainly and in substance set forth, with such certainty as to enable the court to give judgment thereon according to the very right of the cause, without any doubt as to the precise fact of felony charged. The Com. v. Ervin & Lewis, gen'l ct. June T. 1823, 2 Virg. Cas. 337. It is a good rule, that the special manner of the whole fact ought to be set forth with such certainty, that it may judicially appear to the court, that the indictors have not gone on insufficient premises. Haw. B. 2, c. 25, § 7. On this subject, see Mr. Starkie's Treat. on Crim. Plead. passim. In an indictment for murder, it is indispensable that the killing and murder should be charged to be done with "malice aforethought." And although the assault and the stab be charged to have been done with "malice aforethought," if the conclusion substitute "maliciously" for "malice aforethought," the defect is fatal on demurrer, &c. But query, would not this defect be cured by verdict? The Com. v. Gibson, gen. ct. June T. 1817, 2 Virg. Cas. 70. In an indictment for murder, the words "did strike," (percussit) are not technical, but where the blow is made with a dirk, the words stab, stick and thrust, are equivalent thereto; and where there is a positive averment of the stab, &c., with a dirk, it sufficiently appears that the mortal wound was given thereby, under the words, "giving one mortal wound," &c. Gibson v. The Com. gen. ct. November T. 1817, 2 Virg. Cas. 111. A conclusion against the acts of assembly, when there is but one act, is cured by this stat. gen. ct. November T. 1818, 2 Virg. Cas. 143; and see Kenrick v. U. S. cirt. ct. U. S. 1st cir. October 1812, 1 Gallison, 268, where the authorities are examined by judge Story; and U. S. v. Gilbert et al. 2 Sumner, 89. In an indictment for murder, where the death is alleged to have been caused by a wound, it is not necessary to describe either Indictment for murder charges that the prisoner, of his malice aforethought, did make the assault, but the striking and wounding, and the killing and murder, are respectively charged to have been done" of his malice aforesaid:" Held, a good indictment for murder. Maile v. Com. 9 Leigh, 661. An indictment charging that prisoner, "at the county and within the jurisdiction of the court, feloniously and maliciously did stab one P. T. with intention to maim, &c., and kill him," will not be quashed, upon objection that it does not allege any assault, striking or wounding, nor that P. T. was the intent was felonious or malicious. Com. within the county or jurisdiction, nor that v. Woodson, Ibid. 669. The refusal of the examining court to grant the prisoner a continuance of the case, circuit court; but if available there at all, it is no ground for arresting judgment in the should be taken advantage of by plea in abatement, or motion to quash the indictment. Morris v. Com. 9 Leigh, 636. After a verdict of conviction for misdethat the offence was proved to have been meanour, an appellate court will presume within the period of limitation, where the record does not shew the contrary. Earhart v. The Com. 9 Leigh, 671. Where a defendant is indicted upon the stat. of March 7, 1834, for retailing ardent spirits without license, the charge that the spirits were to be drunk at the place where sold, shews that the indictment is upon the 17, not the 3 § of that statute, and such must be proved. Com. v. Coe, Ibid. 620. charge cannot be rejected as surplusage, but An indictment at common law charging that the defendant did fight a duel with pistols, is bad on demurrer. Com. v. Lambert, Ibid. 603. An indictment charging the defendant the same being a house of entertainment, is with unlawful gaming at the house of J. N., sufficient. Linkous v. Com. Ibid. 608. Act of February 25, 1819-January 1, 1820. R. C. ch. 134. 8 9, 11 1. 31. If any person hereafter be taken or charged in execution, in any suit commenced or prosecuted in any court of record within this commonwealth, [or be surrendered by his special bail, after judgment, see Act of Jan'y 5, 1832, c. 28, p. 27; Sup. R. C. c. 217, p. 274,] it shall be lawful for any judge or justice of the said court, or of the court of that county or corporation to whose jail such person shall be committed, by warrant under his hand and seal, to command the jailor or keeper of the said prison, to bring before the said court, if sitting, or, if not sitting, before any two justices(a) [before him, or some other justice of the peace for the same county or corporation, at the courthouse thereof; and the justice so issuing his warrant, or any other justice of the same county or corporation, may thereupon administer the oath prescribed in such case, and grant a warrant for the discharge of the prisoner, in like manner as two justices of the peace are authorized to do. Act of Feb'y 12, 1834, Ses. Acts 1833-4, c. 66, § 1, p. 77,] of the county or corporation, to whose jail he may be committed, at the courthouse of such county or corporation, on a certain day to be appointed by such warrant, the body or bodies of such person or persons so in prison as aforesaid, together with a list of the several executions, with which he or she shall stand charged in the said jail; which warrant such jailor is hereby required to obey, and reasonable notice thereof shall be given to the party or parties, his or their executors, administrators or agents, [see tit. EXECUTIONS, No. 12,] at whose suit such prisoner or prisoners shall be in execution. [And shall also serve with the notice a true copy of the schedule which he or she means to offer. Where there shall be no party or parties or known agent in the county, then such notice and copy of the schedule shall be served on the attorney at law, if he reside in the county. Act of Feb'y 26, 1828, Ses. Acts 1827-8, c. 32, § 1, p. 25; Sup. R. C. c. 216, § 1, p. 273.] And every such prisoner, coming before the said court, or justices, [justice,] as the case shall be, shall subscribe and deliver in a schedule of his whole estate, and make oath and swear, that is to say: I, A. B. do, in the presence of Almighty God, solemnly swear or affirm, (as the case may be,) that the schedule now delivered and by me subscribed, doth contain, to the best of my knowledge and remembrance, a full, just, true and perfect account and discovery of all the estate, goods and effects unto me, in any ways belonging, and such debts as are to me owing, or to any person in trust for me; and of all securities and contracts, whereby any money (a) The court is satisfied that the proceedings before magistrates, in cases of insolvent debtors, are entirely matters in pais, and are, therefore, to be proved by parol and other testimony. Marshall, C. J. in Turner v. Fendall, 1 Cranch, 132. When a prisoner is brought before two justices, in order to take the oath of insolvency, and offers to take such oath, and to convey and deliver the property in his schedule mentioned, and to comply with the other requisites of the law, the justices have no discretion to administer, or not to administer the oath; they cannot enquire into the truth or integrity of the schedule, but are bound to take it as true, and adminis ter the oath and discharge the prisoner; and if they refuse to do so, a mandamus lies from the circuit court to compel them. By the general court, 12 judges present, and Stuart, Johnston and Upshur dissenting. Braxton Harrison v. Emmerson et al. Justices of Norfolk county, Nov. Term, 1830, 2 Leigh, 764. any Act of February 25, 1819-January 1, 1820. R. C. ch. 134. may hereafter become payable, or any benefit or advantage accrue to me, or to my use,(1) or to any other person or persons in trust for me; and that I, or other person or persons in trust for me, have not land, money, stock, or any other estate, real or personal, in possession, reversion, or remainder, of the value of the debt or debts with which I am charged in execution; and that 1 have not, directly or indirectly sold, lessened or otherwise disposed of in trust, or concealed, all, or any part of my lands, money, goods, stocks, debts, securities, contracts or estate, whereby to secure the same; or to receive or expect any profit or advantage therefrom; or to defraud or deceive any creditor or creditors, to whom I am indebted in any wise howsoever. So help me God. And shall, moreover, before he shall be discharged, under the directions of the court or persons before whom such oath of insolvency shall be taken, transfer, and deliver all the personal estate contained in such schedule, and convey all the real estate therein, to the sheriff of the county where they lie or shall be found, to be by him disposed of according to law, [In all cases where the real estate contained in the schedule of any insolvent debtor does not lie within the commonwealth of Virginia, the conveyance required to be made by such insolvent debtor by this [31] section, shall be made to the sheriff of the county within which the said insolvent debtor is imprisoned, who shall dispose of the same as is directed by law in relation to real estate lying in the said county, Mar. 2, 1821, c. 34,] which schedule being so subscribed in open court, if taken in court, and if not, in the presence of two justices, shall, if taken in the court from whence the execution issued, be retained by the clerk of such court, there to remain for the information of the creditors. But when such oath shall be administered in any other court, than that from which such execution issued, the clerk of the court shall in like manner retain the original schedule, but shall deliver to the sheriff or other officer a certified copy thereof, to be returned to the office from whence such execution issued, to have there the same force and effect, that the original would have, if returned with the execution. And, if the oath shall be taken before two justices of the peace, it shall be the duty of the sheriff, or other officer, from whose custody he shall be discharged, to return the schedule subscribed and delivered in, by such insolvent debtor, to the office from which such execution issued: Provided always, That, if there be more than one execution, the schedule shall be returned with that which came first to the officer's hands. And it shall, moreover, be the duty of such sheriff, or other officer, to make a return to each office from which any other execution issued, under which such insolvent debtor may have been committed, stating the truth of the case, and specifying the office to which such schedule may have been returned. See Feb'y 1644-5, act 11, 1 Stat. Larg. 294; Nov. 1647, act 8, Ib. 346; March 1657-8, act 43, Ib. 453; March 1661-2, act 48, 2 Stat. Larg. 81; Oct. 1705, c. 37, 3 Stat. Larg. 388; May 1726, c. 3, § 30, 4 Stat. Larg. 165; Oct. 1748, c. 12, 5 Stat. Larg. 537; Nov. 1753, c. 1, 6 Stat. Larg. 342; Nov. 1762, c. 8, 7 Stat. Larg. 549; Nov. 1769, c. 3, 8 Stat. Larg. 329; 1793, c. 151; 1794, c. 176, R. C.; 1798, c. 249, R. C.; Feb.-June 1813, c. 26. Act of March 13, 1840, ch. 53, p. 46. 11. § 1. It shall be lawful for the defendant in any suit, either at law or in equity, to confess a judgment or decree in the clerk's office of the court in which the same may have been instituted, for the whole amount of the plaintiff's demand with costs, or for such part thereof as the plaintiff in person or (1) As to salary officers, see Flarty v. Odlum, 3 T. R. 681; Lidderdale v. The Duke of Montrose, 4 T. R. 248; Arbuckle et al. v. Cowtan, 3 B. & P. 321. |