CHEATS.

Cheats are such deceitful practices to defraud another of his, known right, by means of some artful device, contrary to the plain rules of common honesty, as common care and prudence are not sufficient to guard against-as selling by false weights and measures, playing with false dice or the like, causing an illiterate person to execute a deed to his prejudice, by reading it over to him in words diferent from those in which it is written; or persuading a woman to execute a writing to another, as her trustee, upon an intended marriage, which contained no such thing, but a warrant of attorney to confess judgment; or by suppressing a will, and such like. These are punishable by fine and imprisonment, and sometimes with the pillory.

And by statute, if any man defrauds another of any valua ble chattels, by colour of any false token or counterfeit letter, he shall be punished by imprisonment, pillory, or other corporal pain (except death) as the court shall direct.

See Arrest.

CHURCH-See Public Worship,

CLERGY (BENEFIT OF.)

The benefit of clergy is a right to be discharged from the punishment of death for the first offence, in all felonies from which the benefit of clergy is not taken away by some statute or act of assembly, upon being burned in the hand and imprisoned for a year, or less time, if the judge thinks proper.

All citizens are entitled to it, woman as well as man ;. though the former are allowed it not by any express law in force in this state, but by indulgence now a long time shown, -perhaps by a tacit adoption of the statutes of 21 7.1. c. 6 3 & 4 W. & M. c. 9. and 4 & 5 W. & M. c. 24.

It is allowable in all felonies, whether new created or by common law, unless taken away by the express words of an act of parliament or act of assembly.

Where it is taken away from the principal, it is not of Course taken away from the accessory, unless he be also particularly included in the words of the statute or act.

When it is taken from the offence (as in case of murder, buggery, robbery, rape, and burglary) a principal in the sefond degree, aiding and abetting the crime, is as well ex

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cluded from his clergy, as he that is principal in the first degree

Where it is only taken away from the person committing the offence (as in the case of stabbing, committing larceny in a dwelling house, or privately from the person), his aiders, and abettors are not excluded; because the statute or act shall be construed literally.

He does not hereby again acquire a right to be restored to his goods, all of which he forfeited to the state by his con viction.. After conviction, till he receives the judgment of the law by branding, or the like, he is to all intents and purposes a felon, and subject to all the disabilities and other incidents of a felon. But after burning or pardon he is dis charged for ever of that and all other felonies before committed within the benefit of clergy, but not of felonies from which such benefit is excluded. Also, by the burning or pardon he is restored to all capacities and credits, and the possession of his lands, as if he had never been convicted.

But he shall not be admitted to his clergy a second time, after having once been admitted thereto.

If the party once admitted to his clergy deny that he is the same person that was before admitted thereto, issue must be joined; and it must be found upon trial that he is the same person, before he can be ousted of his clergy.

If a statute or act of assembly maketh a new felony, and takes away clergy, not generally, but in such or such cases, it is allowable in other cases-as if it be taken away from the party convicted by verdict, he shall have it if he stand mute. But if the statute or act enacts generally that it shall be felony without benefit of clergy, or that he shall suffer as in case of felony without benefit of clergy, this excludes it in all circum

stances.

The indictment must precisely bring the party within the case of the statute or act, otherwise although the fact itself be within the statute and so appears upon the evidence, yet if it be not so alleged in the indictment, the party though convicted shall have his clergy.

If laid in the indictment as mentioned in the statute or act, yet if it appear in evidence, that though it be a felony, it is not so qualified as laid in the indictment, the jury should find him guilty of the felony simply, but not as laid in the indictment; and thereupon he shall have his clergy.

Where a statute only excludes the offence from clergy, indictment need not conclude against the form of the statute or

act.

CLERK OF THE COUNTY COURT.

The clerk of the county court is appointed whenever a va cancy happens, by a majority of the justices of the county; and shall give bond in two thousand pounds, with sufficient security, payable to the justices of the court, for the safekeeping of the records and the faithful discharge of his duty; and shall renew the same as mentioned under title Bonds, or be removed,

He shall hold his office during good behaviour; and he and his deputy, if he has one, shail both take the oaths of allegiance and the oath of office; and he shall subscribe the

same.

When any sheriff, constable, or clerk of any court within this state, shall by virtue of his office, receive any sum or sums of money for or on account of any person whatsoev r, and shall not on application made to him pay the same, such person may give to such sheriff, constable, or clerk, ten days notice in writing, to be proved in the usual manner, to appear before some justice of the peace of the county to show cause why the justice should not grant judgment and issue execution for the same against him and his securities: and if such sheriff, constable, or clerk shall not appear before such justice, or if appearing, does not show sufficient cause to the contrary, it shall be lawful for such justice to grant judgment and award execution against such delinquent for the money due; provided the same does not exceed thirty pounds. Acts 1800, c. 18, & 1803, c. 1.

See Cattle, Horses, and Hogs.

COIN.

Counterfeiting any foreign coin, or uttering or passing the same knowing it to be counterfeit, is punishable as a great misdemeanor, by fine and imprisonment, and sometimes by the pillory; and instances have occurred, where the party was carted and whipped.

Any person endeavouring to utter false money, may be stopped and detained till a constable or officer can be procured, who must arrest and carry him before a justice of the peace to be examined; and if there be proof or pregnant circumstances that the uttering was wilful, he should be bound over to the superior court.

If false money be found in a man's hands, in any considera ble quantity, and he be suspicious, he may be arrested and carried before a justice to be examined. 3 Inst. 18. 1 Haw. 43.

If any person or persons shall make or cause to be made, any counterfeit similitude or likeness of a Spanish milled dol lar, English guinea, or any foreign coin of gold or silver; which is in common use and received in the discharge of contracts by the citizens of this state, or shall utter or pass the same knowing it to be counterfeit, the person or persons so offending shall, on the first conviction in any superior court of law in this state, receive thirty-nine lashes on his or her bare back; and on the second conviction, shall receive the same number of lashes and be imprisoned for a length of time not exceeding twelve months, and be branded on the tight cheek with the letter C. And any person convicted in either of said superior courts of having in his or her possession any instrument for the purpose of making any such counterfeit similitude, shall receive thirty-nine lashes on his or her bare back, and be further liable to be fined at the discretion of the court in the sum of $500 and be imprisoned not more than twelve months. Acts 1811, c. 11

See Arres, Bail.

COMMITMENT.

All persons not bailable, for which see Bail, and all such as are bailable, but refuse or neglect to give it when required, are committed to the county jail.

Wherever a justice is empowered by any statute or act of assembly to bind a person over, or to cause him to do a certain thing, and such person being in his presence shall refuse to be bound, or to do such thing, he may be committed to jail; there to remain until he shall comply.

The justice should discharge persons brought before him charged with any crime, if upon inquiry it manifestly appears either that no such crime was committed, or that the suspicion entertained of the prisoner was wholly groundless: otherwise he must be committed to prison or give bail.

The commitment must be in writing, in the name of the state or of the person who makes it, expressing his office or authority, and tested by him; and must be directed to the jailor or keeper of the prison. It should contain the name and surname of the party committed; if not known, he may be described by his age, stature, complexion, colour of his

hair, and the like. And it is safe, but not necessary, to set forth that he is charged upon oath. It should contain the cause with certainty, as for felony, for the death of such a one, or for burglary in breaking the house of such a one. It must conclude aptly, as if for felony, to detain him until he be thence delivered by law, or by order of law, or by due course of law.' If grounded upon a statute or act of assem bly, the conclusion should be, 'conformably thereto :' or if for contumacy, it should be, until he comply. It must be under seal, and should set forth the place where made, and have a certain date of the year and place.

It is safest for the jailor, in every instance, to have the authority of some court, or magistrate, for discharging the prisoner.

COMMON LAW-See Law:

CONFESSION.

A confession of the defendant, taken upon an examination before a justice of the peace, or in discourse with private persons, may be given in evidence against the party confessing, but not against others. But in the latter case, it will not avail any thing in capital cases, unless corroborated by circumstances agreeing therewith.

CONSPIRACY.

Conspiracy is an agreement between two or more persons to indict an innocent man of felony, falsely and maliciously; who is accordingly indicted and acquitted. This is punishable by fine, imprisonment, pillory, and finding sureties for the good behaviour for such time as the court may order; or by one or more of them only, at the discretion of the court-2 Burr. 1026.

But in such a case, and in all others, a conspiracy without further act, is indictable.-Wood 434. 3 Burr. 1321. 1 Stra.

193.

All confederacies whatsoever, wrongfully to prejudice a third person, are highly criminal-as a confederacy or conspiracy to impoverish a man by indirect means, or to charge him falsely and maliciously with being the reputed father of a bastard child, or to maintain one another in any matter whether true or false, and the like.