omitting the formal part of the indictment and conviction, the indictment stated that the prisoner was convicted of grand larceny within benefit of clergy, and the certificate was in the same form; and the judges, upon the point being reserved, held that both were insufficient. (h) So also in another case, upon the 56 Geo. 3, c. 27, s. 8, which required the certificate to contain the effect and substance only (omitting the formal part) of the indictment and conviction, and order for transportation, it was held that an indictment which stated that the prisoner had been convicted of felony, without stating the nature of that felony, and a certificate which stated only that the prisoner had been convicted of felony, were insufficient; and the prisoner was remitted to his former sentence. (i) But where on an indictment for returning from transportation, the certificate put in alleged that the prisoner had been convicted of two larcenies, and sentenced to two several terms of transportation for seven years each for the said larcenies; Patteson, J., held that the certificate was sufficient. () So where on a similar indictment the certificate put in alleged that the prisoner was 'in due form of law convicted of feloniously and burglariously breaking and entering the dwelling-house of T. D., and feloniously and burglariously stealing therein one piece of the current gold coin,' &c., and was thereupon ordered to be transported beyond the seas for the term of his natural life;' Williams, J., held that the certificate sufficiently stated the sentence of transportation. (k) So where on a similar indictment the certificate put in stated that 'at the general quarter sessions of the peace of our Lady the Queen,' holden at M. in the county of K., the prisoner was in due form of law tried and convicted; Patteson, J., held that the certificate sufficiently described the Court by which the prisoner had been tried. (1) The prisoner was indicted under the 5 Geo. 4, c. 84, s. 22, for being at large before the expiration of the term for which he was transported. A certificate of the clerk of the peace was put in to prove the conviction and sentence, and it appeared therefrom that the prisoner had been convicted of larceny at the sessions, and sentenced to be transported for fourteen years. It was objected that the sessions had no jurisdiction to pass that sentence for simple larceny, and therefore that the judgment was a nullity: but it was held that the judgment was valid until it was reversed, and that was enough. (m)

Where an indictment stated the condition upon which the royal mercy was extended to the prisoner to have been his being transported for life to some parts beyond the seas, and it appeared in evidence that the condition was that he should be transported to New South Wales or some of the islands adjacent, the variance was held to be fatal. (n)

The prisoner was indicted under the 5 Geo. 4, c. 84, s. 22, for being at large before the expiration of the term for which he had been. transported. A certificate of the previous conviction and sentence was produced, in the following form: I, John Gorst, deputy clerk

(h) R. v. Sutcliffe, MS. Bayley, J. R. & R. 469, 914.

(i) R. v. Watson, R. & R. 468.
() R. v. Russell, 1 Cox, C. C. 81.
(k) R. v. Ambury, 6 Cox, C. C. 79.

(1) R. v. Horne, 4 Cox, C. C. 263. (m) R. v. Finney, 2 C. & K. 774, Alderson, B., who consulted several of the judges. (n) R. v. Fitzpatrick, R. & R. 512.

of the peace for the county palatine of Lancaster, and clerk of the Courts of general quarter sessions of the peace, holden in and for the said county, and having the custody of the records of general quarter sessions of the peace holden in and for the said county, do hereby certify that at the general quarter sessions of the peace, holden at Salford, in the said county,' &c. This document was signed by J. Gorst, who acted as clerk of the peace for the said county. R. J. Harpur was the clerk of the peace for the county, but he never discharged the duties of the office but by deputy, and he had three deputies, E. Gorst, J. Gorst, and T. Burchall, who were attorneys and partners. Sometimes one and sometimes another of them attended the sessions and acted as clerk of the peace: at some sessions both E. and J. Gorst attended; there was no clerk of the Court of sessions except the clerk of the peace. The sessions records for forty years past had been kept at the office of the three, at Preston. It was submitted that the certificate did not conform to the provisions of the statute, as Harpur was the clerk of the Court, and had the legal custody of the records, and this certificate was only by his deputy; but Coltman, J., overruled the objection. (o)

Where the prisoner had received a pardon on condition of transporting himself beyond the seas, within fourteen days from the day of his discharge, and it was incumbent on the prosecutor to prove the precise day on which the prisoner was discharged, it was holden that the daily book of the prison, containing entries of the names of the criminals brought to the prison, and the times when they were discharged, though generally made from the information of the turnkeys, or from their endorsements on the backs of the warrants, was good evidence to prove the time of the prisoner's discharge. (p) And it was held that though, if a convict on his trial for returning from transportation before his time was expired, should confess the fact, and acknowledge that he is the man, the Court would record such confession; yet, no such confession being made, it was necessary to produce the record of conviction, and give evidence of the prisoner's identity. (9)

Where a convict was sentenced to transportation for seven years, and received a sign manual, promising him a pardon, on condition of his giving a security to transport himself for that period within fourteen days,' and upon his giving such security was discharged from prison, but neglected to transport himself within the fourteen days: it was holden that he could not be indicted for being unlawfully found at large before the term for which he had received sentence of transportation had expired, on the ground that such sign manual, and the recognizance entered into in consequence of it, were good evidence that he was lawfully, at large; although he had not substantially performed the condition on which the promise of pardon was granted. (r)

In the last case, the prisoner was referred to his original sentence of transportation, as not having performed the condition upon which his pardon was to be granted; that is, he was pardoned on condition of transporting himself within fourteen days. (s) And in another case it was holden, that a prisoner convicted of a capital crime, whose sentence was respited during the King's pleasure, and who, having received a pardon on condition of transportation for life, was afterwards found at large in Great Britain without lawful cause, should be referred to his original sentence. (t) In a subsequent case, where the prisoner, having been convicted of simple grand larceny, had received judgment of transportation to America for seven years, but had afterwards been pardoned, 'on condition of transporting himself beyond the seas for the same term of years, within fourteen days from the day of his discharge, and of giving security so to do,' and, upon giving the security required, had been discharged, but had not complied with the other part of the condition, by transporting himself, it was doubted whether he could be convicted of a capital felony in being found at large, without any lawful cause, before the expiration of the term, or whether he ought to be remitted to his former sentence. The former cases were cited as authorities that the prisoner's discharge was a lawful cause for his being at large, notwithstanding he had forfeited the recognizance of himself and his bail, by breaking the other part of the condition, in not transporting himself within the fourteen days; but one of the judges thought that, as the prisoner had not complied with the terms on which he was pardoned, he must be considered as having been at large without lawful authority, as soon as the fourteen days had expired. Another judge considered it as a doubtful question whether the non-performance of the condition had not rendered the whole pardon null and void; and he also

transporting himself, &c., and of his giving
security to the satisfaction,' &c., and not
merely upon condition of his giving
security,' &c., and that though the King
might revoke his intended grace on account
of this apparent fraud, yet, as he had not in
fact revoked it, and as the prisoner had liter-
ally complied with the condition, he ought
not to have been convicted upon an indict-
ment for being found at large, without any
lawful excuse, before the expiration of his
term. With respect, however, to a condition
being considered precedent or subsequent, it
has been holden that no precise technical
words are requisite for that purpose; that it
does not depend upon its being prior or pos-
terior in the deed, but that it depends upon
the nature of the contract, and the acts to
be performed by the parties. Robinson v.
Comyns, Cas. temp. Talb. 166.
The East India Co., 1 T. R. 645.
(s) Miller's case, 1 Leach, 76.
(t) Madan's case, Old Bailey, 1780.
Leach, 223. In 1 Hawk. P. C. c. 47, tit.
Return from Transportation, s. 23 (referring
to Cas. C. L. 197), this case is cited as having
decided that the prisoner was so referred back
to his original sentence, on his being indicted
for returning from transportation, and ac-

Hotham v.

1

quitted. But in the report in Leach, it is said that no indictment was ever preferred against the prisoner for the new felony; but that, being in custody, a notice was served upon him to show cause why execution should not be awarded against him on his former sentence: that after this notice he was put to the bar, and his identity and the record of his former conviction proved; and he not being prepared to prove the truth of certain facts alleged in his defence, the Court gave their opinion that, as he had broken the condition of the pardon, he remained in the same state in which he was at the time the pardon was granted, namely, under sentence of death, with a respite of that sentence during his Majesty's pleasure. The report further states that afterwards it was submitted to the judges, whether the prisoner would not have been liable to suffer death without benefit of clergy, if he had been indicted and convicted under the 8 Geo. 3, c. 15, or whether he had been properly referred to his original sentence. No opinion of the judges is stated; but it appears that at the Old Bailey, April Sess. 1782, the prisoner was informed by the Court that it was his Majesty's pleasure that he should be transported to Africa for life.

thought that the offence with which the prisoner was charged was not within the 16 Geo. 2, c. 15, because he had not agreed to transport himself to America; and that it was not within the 19 Geo. 3, c. 74, because that Act related only to pardons granted to offenders who had been convicted of felonies by which they were excluded from clergy. (u)

In this last case, one point was agreed upon, namely, that as the prisoner had, at the time of his discharge, a real intention to quit the kingdom within the time, but had been prevented from carrying it into execution by the distress of poverty and ill-health, these impediments amounted to a lawful cause. (v)

(u) Aickle's case, Old Bailey, 1785, cor. Gould, J., Hotham, B., and Adair, Recorder. The Recorder thought that the indictment was perfectly supported under the clause of the 16 Geo. 2, c. 15, adopted by 19 Geo. 3, c. 74, which made it a capital felony to be found at large in Great Britain within the term for which a convict, who was liable to be transported to America, had received sentence to be transported beyond the seas.

But he thought that when the condition of the King's pardon was broken, the pardon was gone. There being, however, a difference of opinion, it was intended to have submitted the case to the opinion of the twelve judges, if the prisoner had been found guilty.

(v) Aickle's case, 1 Leach, 396; and see Thorpe's case, id. ibid. note (a).

CHAPTER THE THIRTY-EIGHTH.

OF GAMING.

It seems that by the common law, the playing at cards, dice, &c., when practised innocently and as a recreation, the better to fit a person for business, is not at all unlawful, nor punishable as any sort of offence; but a person guilty of cheating, as by playing with false cards, dice, &c., may be indicted for it at common law, and fined and imprisoned according to the circumstances of the case and heinousness of the offence. (a) We have seen that common gaming-houses are considered as nuisances in the eye of the law; (b) and that lotteries have been declared to be public nuisances, except as they may have been authorized by Parliament, (c) and that betting or gaming in a public place is forbidden. (d)

The 5 & 6 Will. 4, c. 41, s. 1, repealed so much of the 16 Car. 2, c. 7, 10 Will. 3 (I.), 9 Anne, c. 14, 11 Anne (I.), 12 Anne, stat. 2, c. 16, 5 Geo. 2 (I.), 11 & 12 Geo. 3 (I.), 45 Geo. 3, c. 72, and 6 Geo. 4, c. 16, as enacted that any note, bill, or mortgage shall be absolutely void.' (e) The 8 & 9 Vict. c. 109, s. 15, repeals 'so much of' the 16 Car. 2, c. 7, 10 Will. 3 (I.), 9 Anne, c. 14, and 11 Anne (I.), 'as was not altered by the 5 & 6 Will. 4, c. 41.' It seems, therefore, that, as far as the subject of this chapter is concerned, the whole of these four last-mentioned Acts are repealed. The 8 & 9 Vict. c. 109, s. 15, also repeals 'so much of' the 18 Geo. 2, c. 34, as relates to' the 9 Anne, c. 14, or as renders any person liable to be indicted and punished for winning or losing, at play or by betting, at any one time, the sum or value of ten pounds, or within the space of twentyfour hours the sum or value of twenty pounds.' This seems to repeal secs. 3 and 8 of the 18 Geo. 3, c. 34. The 8 & 9 Vict. c. 109, s. 1, also repeals parts of the 33 Hen. 8, c. 9.

To constitute unlawful gaming it is not necessary that the games played shall be unlawful games, it is enough that the playing takes place in a common gaming-house.

There appear to be two classes of unlawful games within the meaning of the statutes. First, those which are absolutely forbidden by name; and second, those which are not declared to be altogether illegal, but which have been styled unlawful by the legislature because the keeping of houses for playing them and the playing them therein was made illegal.

'The unlawful games now are ace of hearts, pharaoh, basset, hazard, passage, roulette, every game of dice except backgammon, and

(a) Bac. Abr. tit. Gaming (A.), 2 Roll. Abr. 78.

(b) Ante, pp. 741, 745. As to resorting to betting houses. See R. v. Brown 1895), 1 Q. B. 119.

VOL. I. - 59

(c) Ante, p. 754.

(d) Ante, p. 754.

(e) The clause recites the 58 Geo. 3, c. 93, also, but it is omitted in the repeal.