Notice of THE KING ON THE PROSECUTION OF A. B. v. P. Q. Mr. A. B. Take notice, that I do hereby countermand the countermand, notice of trial of the above indictment, dated the ...... day of .....instant, and that I shall, on the ...... day of.... instant, at the sitting of the court of quarter session at... for the county of...... or as soon after as counsel can be heard, move the said court that the trial of the said indictment may stand over till the next general quarter session of the peace for the said county, on account of the absence of......a material witness for the defendant in the same, who is absent in foreign parts, and whom I have not been able to serve with a subpoena. X. Y. Attorney to the defendant in the said prosecution. To Mr. A. B. Prosecutor, &c. (or to his Attorney). It has been observed, that the postponement of a trial may also emanate from the Court, independently of the desire of the parties prosecuting or defending. Thus, if several be in custody for a conspiracy or other joint misdemeanour, and bills have been found, and one or more of them prefer to take their trial immediately (perhaps because they are unable to procure pledges to traverse), and the others traverse with their pledges according to regular form, the Court, according to all practice, will put off the trial of those who prefer to be tried immediately till the period when, by the customary expiration of the Traverse, all the parties can be tried together. That this is the constant practice it does not require the production of authorities to show, and the reason given for it is, that were it otherwise, as there is generally a difference in the guilt of the different offenders, or at least in the evidence which is to attach guilt to them, those who have the best chance of being acquitted would always offer themselves for immediate trial, in order that they might afterwards become witnesses for their confede rates on the trial of their Traverses.* On the point of expediency there may be no resisting this reasoning; but at the same time it appears to be a harsh exertion of authority, and directly in opposition to the spirit recognized by the Habeas Corpus Act, to keep a person in prison without R. v. Teal, 11 E. R. 307.-R. v. De Berenger and others, 3 M. & S. trial, who is willing to be tried, merely because another is more fortunate in obtaining securities, and prefers having his trial postponed. It leads therefore necessarily to this inquiry; viz. whether any court is, according to the benign principles of the English constitution, justified in rejecting such security as the parties, under the premised circumstances, are enabled to offer, even though it should be only their own, to be forthcoming at the same time with their confederates, and by such rejection retaining them in prison without trial? It only remains to be observed, that a record of every A record of Traverse is to be made up by the clerk of the peace, Traverse. wherein is to be comprehended a succinct history of the whole proceedings; the stile of the court, the indictment, the process to compel an answer, the Traverse itself, and, if it proceed to trial, the trial by the jury, their verdict, the judgment of the court, execution, and fine assessed. The necessity for all this will more fully appear when we come, in a subsequent chapter, to treat of Certioraries. These records, of course, vary much according to the offence, the court before which tried, the issue of such trial, as acquittal, or conviction, and other obvious circumstances of discrimination. A single precedent, however, by way of illustration, must suffice. County of.... [ Be it remembered, that at the general quar{ (to wit). ter session of the peace of our Lord the King, holden for the county of...... at...... in the said county, on the...... day of...... in the forty-seventh year of our Sovereign Lord George the Third, &c. &c. before M. M., N. N., and 0.0., Esquires, and others their fellows, justices of our said Lord the King, assigned to keep the peace in the county aforesaid, and also to hear and determine divers felonies, trespasses, and other misdemeanors committed and done in the said county, upon the oath of P. P., Q. Q., &c. (here name all the grand jury) good and lawful men of the county aforesaid, now here sworn and charged to enquire for our Sovereign Lord the King, for the body of the said county, it is presented in manner and form following; that is to say, County of...... The jurors of our Lord the King, upon their oath, present that A. B. and C. D. (here copy the indictment); wherefore the sheriff of the said county of...... is commanded that he do not omit by reason of any liberty in his bailiwick, but 2 One prisoner found guilty. The other acquitted. that he do cause them the said A. B. and C. D. to come before Having now treated, so far as our limits will admit, of Traverses in the abstract, we come, in regular order, to the consideration of those offences charged in the bills of in dictment, on which, it is presumed, the grand jury are deliberating. Offences which may be made the subject of indictment, Offences-deand are below the crime of treason, are MISDEMEANOURS scription of and FELONIES. The majority of those generally tried at sessions of the peace being of the former of these descriptions, they claim the first notice. nours. MISDEMEANOUR has been, in many works on jurispru- Misdemea dence, somewhat loosely declared to be "all crimes that are less than felony." This may be colloquially satisfactory as a general description, but it imparts no precise or critical definition of the specific offence. It tells us indeed what misdemeanour is not, but it gives us very imperfect notions what it is. Misdemeanours are divisible into two kinds; viz. those declared by statute, and those which are such at common law. Statutable misdemeanours it may be impossible to comprehend under a precise and specific definition, because the offences themselves, which the respective statutes have so denominated, are various and diversified in their nature; at least arbitrarily, if not capriciously, named; but have indeed the one characteristic distinction of being "less than felony" in common. Respecting these, however, there can be few difficulties, at least beyond those of mere practical moment, and such will come to be considered hereafter, because the offences themselves are described, if not actually created, by the statutes respectively made for the punishment of them; and in instances where the specific mode of punishment is not directed, it is uniformly and universally understood to be that annexed to common law misdemeanours, viz. fine and imprisonment. mon law-de But MISDEMEANOURS AT COMMON LAW are not so easily Misdemeasusceptible of a strict determinate character, although ne-nours at com cessary to be explained with perspicuity, and limited with scription of. precision; as is immediately apparent from the occurrence of bills of indictment having been occasionally presented on account of acts done, which have been considered by the prosecutors as flagrant violations of propriety, but which the courts have refused to entertain as misdemea Examples. nours; as well as other cases, in which great doubts have been expressed by courts, and elaborate arguments employed by counsel, before arriving at a conclusion respecting the quality, or even the existence, of a public offence, in the imputed act.* Misdemeanour, in its primary and familiar sense, means nothing more than trespass, generally, (the word used in the commission of the peace); in its legal construction, to become the subject of indictment before a court and jury, it may perhaps be described, with a reasonable approach toward correctness, to be "such exclusive trespasses against good manners, or good morals, as tend to injure the public either directly or consequentially, but which do not amount to any higher species of characterized crime." If we look through the catalogue of offences which have been determined to be indictable as misdemeanours at common law, we shall find that they all fall within this definition, or, more correctly speaking, description. We will proceed to examine them, seriatim, as exhibited in a few examples, premising only, 1. That whatever tends, either directly, or indirectly, to a breach of the king's peace, or to the injury of his subjects, indiscriminately, is a trespass against good manners, or the manners of a good subject, and consequently dangerous to the public at large, although the immediate injury may only be inflicted on an individual. This division of the subject, while it comprehends the greatest variety of common law misdemeanours, is for that reason the most difficult to be perspicuously explained, at least within the limits of a technical description however comprehensive.+ See 2 Hawk. c. 25. s. 4.-R. v. Southerton, 6 E. R. 126.—R. v, Richards, 8 T. R. 634. The discrimination involved in the different receptions which the two following indictments, arising out of different portions of the same transaction, encountered at a Middlesex session a very few years since, though not cited as any authority on the subject generally, are peculiarly illustrative of the difficulty here intimated. Two indictments were preferred against A. B. as for two misdemeanours. The first was for scattering over the private inclosed premises of the prosecutor wilfully, and with intent to destroy his poultry, divers quantities of poisoned corn, whereby, and by |