FELONY, MISPRISION OF FELONY.

AND THEFTBOTE.

I. FELONY.

SO various are the derivations of the word felony, that it would be an useless task to undertake a recital of the different opinions of writers on the subject. Suffice it to observe, in the words of judge Blackstone, that "Felony, in the general acceptation of the English law, comprises every species of crime, which occasioned at common law the forfeiture of lands or goods." 4 Bl. Com. 95.

II. MISPRISION OF FELONY.

Misprision of felony (from the French word mespris) a neglect or contempt (3 Inst. 36.) is the concealing of a felony which a man knows, but never consented to; for if he consented, he is either a principal or accessary in the felony, and consequently guilty of misprision of felony and more. 1 Hale 374.

For it is said, that every felony includes misprision of felony, and may be proceeded against as a misprision only. 1 Haw. 125.

If any person will save himself from the crime of misprision, he must discover the offence to a magistrate, with all convenient speed that he can. 3 Inst. 140.

Misprision, in a larger sense, is used to signify every considerable misdemeanor, which hath not a certain name given it by the law. 2 Burn's Just. 172.

This offence is usually punished by fine and imprisonment.

III. THEFTBOTE.

Theftbote (from the Saxon words theft, and bote boot, or amends) is, where one not only knows of a felony, but takes his goods again, or other amends, not to prosecute. 1 Haw. 125.

But the bare taking of one's own goods again, which have been stolen, is no offence, unless some favour be shewn to the thief. 1 Haw.

125.

This offence is very nearly allied to felony, and is said to have been anciently punished as such; but at this day it is punishable only with ransom and imprisonment, unless it were accompanied with some degree of maintenance given to the felon, which makes the party an accessary after the fact. Ibid.

Warrant for felony.

county, to wit: Whereas A I, of hath this day made information and complaint, upon oath, before me, JP, a justice of the peace for the county of that this present day, divers goods of him the said A I, to wit (describe them) have been feloniously stolen, taken, and carried away, from the house of him the said A I, at the county aforesaid, and that he hath just cause to suspect, and doth suspect that A O, late of did feloniously steal, take, and carry away the same. These are therefore to command you, forthwith, to apprehend the said A (), and to bring him before me, to answer the said information and complaint, and further to be dealt with according to law. Given under my hand and seal, &c.

To the constable of

The comprehensive term Felony would naturally embrace a great variety of heads, such as Homicide, Robbery, Burglary, Rape, Forgery, Larceny, &c. But as all felonies are treated of under their respective titles, and the method of bringing the offender to justice may be found under titles Criminals, Arrest, Hue and Cry, Bail, Commitment, Jail and Jailor, Arraignment, Indictment, Mute, Confession, Juries and Jurors, Evidence, Clergy, Judgment, and Execution, it would be an unnecessary repetition to insert any matter in this place, relative to these several titles.

"IF any horses, mares, cattle, hogs, sheep, or goats, shall break into any grounds inclosed with a strong and sound fence, five feet high, and so close that the beasts could not creep through; or with an hedge two feet high, upon a ditch three feet deep, and three feet broad; or instead of such hedge, a rail fence of two feet and a half high, the hedge or fence being so close that none of the said creatures can creep through, which shall be accounted a lawful fence, the owner of such creatures shall, for the first offence, make reparation to the party injured, for the true value of the damage, and for every subsequent trespass double damages; to be recovered with costs in any court of record: for a third offence, the party injured may either kill the beast, without being liable to an action, or may sue for his damages." 1 Rev. Code, 273.

2. "Upon complaint made to a justice for the county, wherein such trespass shall be, such justice shall, without delay, issue his order, to three honest and disinterested house-keepers, reciting the complaint, and requiring them to view the fence where the trespass is complained of, and to take memorandums of the same, and their testimony in

such case shall be good evidence to the jury, touching the lawfulness of the fence."

3. "If any person damnified, for want of such sufficient fence, shall injure, or cause to be injured, in any manner, any of the kind of animals above mentioned, he shall pay to the owner double damages, with costs, recoverable as aforesaid."

Warrant to three housekeepers to view the fence:

county, to wit:

To A H, BH, and C H, housekeepers of this county.

Whereas J K, of the said county, planter, hath this day complained to me, J P, a justice of the peace for the county aforesaid, that a horse belonging to W N, of the said county, did last night break into the corn field of the said J K, which was fenced and inclosed according to the directions of the act of the General Assembly in that case made and provided, whereby he hath sustained considerable damage. These are therefore to require you, forthwith, to go and view the fence of the said cornfield, and take a memorandum of the same in writing, the better to enable you to testify, if you should be required, concerning the premises. Given, &c.,

FERRIES.

FERRIES were originally established, in Virginia, at the expence of the county where they were kept; and where a river or creek was the dividing line between two counties, each of them was bound to contribute. (See 1 vol. Stat. at Large, p. 269.) In the year 1647, that act was repealed, and the county courts were authorised to establish ferries, on the application of individuals, and to fix their rates. (Ibid. p. 348.) Afterwards the General Assembly exercised the sole power of establishing ferries; until, by an act passed at the session of 1806, power was again given to the county courts. See 2 Rev. Code, p. 130.

So much of the several acts concerning ferries, as fall within the jurisdiction of a justice of the peace, will be found in 1 Rev. Code, p. 227, sect. 4. and 2 Rev. Code, p. 132, sect. 7, 8. By the first recited act, if the keeper of a ferry or toll bridge shall demand and take from a person, a greater sum for ferriage than is allowed by that act, he forfeits to the person so overcharged the ferriage or toll, and two dollars. By the last mentioned act, if any keeper of a ferry, after due application, shall refuse to set over a person within a reasonable time, he shall forfeit two dollars, one half to the informer, the other to the poor of the precinct. Provided, that if it shall appear to the justice that, from the cause of wind, rise of water, driving of ice, or other good

cause in the water course, that the life of the owner or keeper would have been in danger, he shall be discharged.

(A) Warrant for exacting more than legal ferriage.

county, to wit:

*

Whereas A T hath this day made complaint to me, JP, a justice of the peace for the county aforesaid, that B F, the owner of a ferry (or toll bridge) over

him the sum of

than allowed by law.

river (or creek) did demand and take of for crossing the same, being a greater sum These are therefore to command you to sum

mon the said B F to appear before me, immediately, to shew cause why the said two dollars, besides the said sum of

be levied upon him. Given under my hand and seal, &c.

should not

(B) Warrant for refusing to set a person over a ferry.

(As in form (A) to this mark*, then say did refuse to set the said A T over the said ferry, not having a reasonable excuse. These are therefore, &c. to shew cause why the penalty of two dollars should not be levied, &c. Given, &c.

FLOUR.

THE exportation of flour having become an article of considerable importance in this state, the legislature have found it necessary to inforce obedience to the several requisitions of the act for "regulating the inspection of flour and bread," by imposing certain penalties, many of which are recoverable before a justice of the peace.

By act of 1792 (1 Rev. Code, p. 228, after enumerating the several places at which inspections of flour and bread shall be established) it is enacted, sect. 3. That the courts of the several counties in which those places are situated shall annually, in September or October, appoint a person of good repute, and skill in the quality of flour, as inspector. In case of the death, refusal, or neglect, of a person so appointed, the justices of the county, or any three, may fill the vacancy, by appointment of another till the next court, when another appointment shall be made for the balance of the year. The court failing to appoint at the time directed, the governor and council may, and the person appointed, after taking the oath herein after mentioned, before a justice of the peace, shall in every instance be considered as appointed by the

court.

Sect. 4. All wheat flour, brought to any inspection for exportation, shall be merchantable, of due fineness, and without any mixture of

the flour of any other grain [under penalty of forfeiture to the commonwealth, and ten dollars a barrel.] 1 Rev. Code, p. 263, 430.

Sect. 5. All bread and flour casks, for exportation, shall be well made, of seasoned materials, tightened with ten hoops, nailed with four nails in each chine hoop, and three nails in each upper bilge hoop; the flour barrels shall be twenty-seven inches in length in the staves, and seventeen and a half in the head in diameter; half barrels shall be twenty three inches in length, and twelve and a half inches in the head in diameter.

Sect. 6. Every miller of flour and baker of bread shall brand every cask for exportation, with a distinguishable brand-mark, and mark the tare and nett weight, before removed from the place of manufacture, under a penalty of forty-two cents fer every cask of flour not nailed and hooped as aforesaid, and for every cask of flour or bread, not branded and marked as aforesaid, to be recovered from the miller or baker; or from the person bringing them to market, who may recover it again from the miller or baker, provided he can prove he gave them notice he intended to carry it away for exportation. [Every barrel of flour to be branded No. 2.] 1 Rev. Code, p. 377.

Sect. 7. Every barrel of flour shall contain one hundred and ninetysix pounds, and every half barrel ninety-eight pounds of flour; for the deficiency of every pound under three, the miller and bolter forfeits eight cents, and more than three, seventeen cents. [The fine imposed on the person offering the flour for inspection.] Ibid.

Sect. 8. All casks wherein bread shall be packed shall be weighed, and the tare marked thereon. And if any person shall put a false or wrong tare on, to the disadvantage of the purchaser, he shall forfeit, for every cask so falsely tared, eighty-three cents; and the inspector, his deputy or assistant, upon suspicion, or at the request of the purchaser, shall unpack any cask of flour or bread; and if there is a less quantity of flour, than above directed, or if the cask wherein bread is packed shall be found to weigh more than is marked thereon, the miller, baker or bolter, shall pay the charges of unpacking, and repacking, over and above the penalties aforesaid; but otherwise the charges shall be paid by the inspector, or by the purchaser, if the trial be made at his request. [Extended to flour.] 1 Kev. Code, p. 311.

Sect. 9. Every baker of bread for exportation shall deliver with it a manifest of the contents, with his brand marked thereon, and his Dame subscribed thereto, under the penalty of seven dollars for every manifest delivered contrary thereto; and if, on trial, any cask of bread be found lighter than it is specified in the manifest, the baker forfeits in the same proportion as is directed in the case of flour.

Sect. 10. Any cask of flour, brought to an inspection for exportation, shall be examined by an inspector, by boring through the head of the cask, with an instrument not exceeding half an inch in diameter if he shall judge it merchantable, agreeable to the directions of this act, he shall plug up the hole, and brand the cask in the quarter, with the name of the place at which he is inspector, with a public brand-mark, to be provided for him, and also the degree of fineness, as superfine, fine, middling, shipstuff; for which the inspectors at Alexandria, Fredericksburg, Falmouth, Richmond, Manchester, Petersburg, Pocaliuntas, and Blandford, shall receive two cents for each