The Magistrate's Manual.

ACCESSARY BEFORE THE FACT.

AN accessary is one guilty of felony, not as a principal, but by participation, command, advice, or concealment. In high treason there are no accessaries, all concerned are principals; so in petit larceny and misdemeanors there can be no accessaries either before or after the fact, but all partics implicated, if guilty, are principals.

An accessary before the fact is, as Hale defines, one who being absent at the time the crime is committed, doth yet procure, counsel, or advise the commission of it, and his absence is necessary to constitute him an accessary before the fact. By Stat. 3 and 4 Wm. III. in Burglary benefit of clergy is taken away from accessaries before the fact.

B

Affidavit of the Party to ground a Warrant for apprehending

an Accessary before the Fact.

A. B. of

in the county of

and saith, that on

the

gent. maketh oath day of last, his dwelling house, situate in the parish of in the said county, was, about the hour of nine in the night. of the same day, feloniously and burglariously broken and entered by some person or persons, and that [describe the property stolen] his property, were then and there feloniously stolen, and that he hath just cause to suspect, and doth suspect, that C. D. late of aforesaid, labourer, did commit the said felony and burglary, and that E. F. late of aforesaid, labourer, did advise, aid, and abet the said C. D. in the said felony.

Sworn, &c.

A. B.

Warrant thereon.

To the Constable of the parish of

within the said County.

of

and all other His Majesty's Peace Officers

to wit. Whereas A. B. of

in the county of

in the said county

gent. hath this day made oath before me, W. S. Esq. one of His Majesty's justices of the peace in and for the said county, that [here state the fact as set forth in the affidavit.] These are therefore, in His Majesty's name, to charge and command you, forthwith, to apprehend and bring before me, the said C. D. and E. F. to answer the said complaint, and to be further dealt with according to law. Given under my hand and seal, this ― day of -1817.

Commitment.

To the Keeper of the Common Gaol of Newgate, or his

Deputy.

Receive into your custody the bodies of C. D. and E. F. herewith sent you, brought before me, W. S. Esq. one of His Majesty's justices of the peace in and for the said county, by K. L. constable of the parish of

charged

upon the oath of A. B. with [here state the offence], and them safely keep in your custody until they shall be discharged by due course of law. Given under my hand and seal, at

this

day of

1817.

ACCESSARY AFTER THE FACT.

An accessary ex post facto, is one who knowing a felony to have been committed, receives, harbours, or assists the felon; and any assistance given to a felon, to hinder his apprehension, trial, or punishment, makes the person assisting an accessary after the fact. To buy or receive stolen goods, knowing them to be so, is an offence of this sort, and by Stat. 5 Anne, c. 31, and 4 Geo. I. c. 11, all such receivers may be transported for fourteen years.

Accessary, by Stat. 43, Geo. III. c. 113, s. 5, may be tried in the county where he was accessary, or where the felony was committed; but the party once tried, shall not be again indicted, prosecuted, or tried in any court whatsoever.

Accessaries, by a mild construction of the Statutes of Westminster, 3 Edw. I. c. 15, have been admitted to bail, upon reputed good character; but where strong presumption of guilt is manifest, no bail should be admitted. 2 Hawk. c. 15, s. 53.

An accessary, on his trial, after conviction of the principal, may controvert the guilt of the latter. Leach, 237. The receiving bank notes, knowing them to be stolen, is not felony; neither is money, not being goods and chattels within the meaning of

the Statute against receiving stolen goods. Mor ris's case, Leach, 368, and see Bacon's Abr. and Burn's Just. title, "Accessary."

Warrant to apprehend an Accessary after the Fact, for harbouring the Principal.

stands charged

to wit. Whereas N. O, of before me, J. C. Esq. one of His Majesty's justices of the peace in and for the said county, on the oath of A. B. with having [state the offence as in the preceding affidavit.] And whereas P. Q. hath this day also made oath before me, that T. T. of aforesaid, yeoman, since the said felony and burglary was committed, hath received, harboured, and maintained him, the said C. D. in the dwelling house of him the said T. T. at aforesaid, he, the said T. T. well knowing the said C. D. to have committed the said felony and burglary. These are therefore to command you forthwith to apprehend and bring before me, at this place, the body of the said T. T. to answer to the said charge, and to be further dealt with according to law. Given under my hand and seal, at in the said county, this -day of

1817.

Warrant to apprehend an Accessary after the Fact, for receiving Stolen Goods.

To the Constable of the parish of

[as before.]

to wit. Whereas A. B. hath this day made oath before me, S. P. Esq. one of His Majesty's justices of the peace, in and for the said county, [here state the facts as in the first affidavit] and also that the said A. B. hath cause to suspect, and doth suspect, that J. J. of in the said county, labourer, hath feloniously bought and received the said [the property stolen] knowing the same to have been feloniously stolen. These are therefore to command you [see last precedent.]

ACTION.

No action can be brought against a justice of the peace for any thing done by him by virtue of his office, until notice in writing of such intended writ or process shall have been delivered to him, or left at his usual place of abode, or served at least one calendar month before the suing out or serving the same, in which notice must be clearly and explicitly contained the cause of action which the party suing claims to have against such justice; and on the back of such notice shall be indorsed the name and place of abode of the plaintiff's attorney or agent, 24 Geo. II. c. 44, s. 1. Although personal service of the notice is to be preferred, yet it has been determined, 4 T. R. 465, that leaving it at the dwelling house is sufficient. The party may give the notice in his own name, or in the name of his attorney; but the particular writ intended to be issued must be stated, and it must be served one full calendar month previous to such writ being issued. It is necessary to be particular in describing the offence, as no evidence can be given by the plaintiff of any cause of action, except such as is contained in the notice; a general notice of an action for an assault and false imprisonment is bad, 7 T. R. 631. The action must be commenced within six calendar months after the act