When an enacting statute de scribes an offence with cer tain excep ment. (C) AS TO NEGATIVE AVERMENTS.* COMMONWEALTH V. MAXWELL, March T. 1824, 2 Pick. Mass. Rep. 141. Indictment on the statute against the defendant for entertain clause of a ing persons drinking, &c. on the Lord's day. Putnam, J. The rule is, that where the enacting clause describes the offence, with certain exceptions, it is necessary to state all the circumstances which constitute the offence, and to tions, they negative the exceptions; but where the exceptions are containmust be ne ed in separate clauses or provisions of the statute, they may be gatived in the indict omitted in the indictment, and may be shown by the defendant as · matters in defence. In Rex v. Jarvis, cited in 1 East's Rep. 643, note, Lord Mansfield and his associate judges speak of this as a known distinction. That case is reported in 1 Burr. 148. It was a conviction under the game laws, where one of the qualifications, viz. being a game keeper, was not negatived, and the conviction was quashed. So in 1 East's P. C. 166, upon an indictment for counterfeiting coin, all the judges held, that it ought to be averred that the party was not employed in the mint or authorized by the treasurer, because the exception is in the enacting clause and part of the description of the offence. This principle is to be found in 1 Chit. Cr. Law, 283, and is fully supported by the cases there and above cited. Where the indicted for XVI. OF THE EVIDENCE. HOOKER V. THE STATE, Ohio Cond. Rep. 819. Hooker was indicted for horse stealing and convicted. Upon prisoner is the trial it was proved to the jury, that the animal stolen by the stealing a a prisoner, was a grey gelding, and not a grey horse, as charged in grey horse, the indictment; and thereupon the counsel for the prisoner movthe amimal ed the court to instruct the jury, that the prisoner could not be proof that stolen was a grey geld ing, is a fa dal vari ance. * When the enacting clause of a statute contains an exception, it must be negatived in the indictment or declaration; Spear v. Parker, 1 D. & E. 141; 1 East, P. C. 167; Rex v. Doris, 3 Bar. & Ald. 596; Vevasa v. Ormond, 6 Barn. & Cres. 432; Commonwealth v. Maxwell, 2 Pick. Rep. 139; Smith v. Moore, 6 Greenleaf's Rep. 274. But if the exception or proviso is in a substantive and distinct clause of the statute, it is a matter of defence, and need not be negatived; Rex v. Matters, 1 Bar. & Ald. 362; Steel v. Smith, ibid. 94; Arch. Cr. Pl. 25; Tell v. Fondo, 4 Johns. Rep. 304. By enacting clause," is meant, where the exception is so incorporated with the enacting clause, that the one cannot be read without the other; Steel v. Smith, 1 Bar & Al. 94; Jones v. Axon, 1 La. Raymond, 120, 4 Johns. 304. See 2 Yerger's Tenn. Rep. 22. 66 found guilty, which instruction the court refused. The defendant excepted. Per Cur. The objection raised by the bill of exceptions, seems too insignificant to demand a serious consideration. The term horse, being a generic name, ought to include every variety of the animal, as diversified, by age, sex, occupation, or modification. The English authorities however, and which have been recognized in several states of the union, as sound law, are too strong to be resisted, and too pointed to be evaded. It is the duty of the court, not to make, but to declare the law. Ita lex scripta est, precludes all inquiry into the reasonableness or propriety of the objection. Judgment reversed. XVII. WHEN AN INDICTMENT FOR ONE THING WILL 1. indictment RESPUBLICA V. ROBERTS, April T. 1791, 1 Yeate's Penn. R. 7. One of the questions in this case was, whether on an indict- Under an ment for adultery, defendant might be convicted of fornication. for adulte It was said by Mr. Bradford, Attorney General, that the larger ry, defend ant may be offence included the smaller, and that it might justly be resem convicted bled to an indictment for murder, where one might be convicted of fornica of manslaughter, or to robbery, where one might be convicted of felony, or to a felonious trespass, where one might be convicted of the trespass, though the jury might acquit the party of the murder, robbery, or felonious trespass; and of that opinion was the whole court. tion. 2.. STATE V. NICHOLS, June T. 1831, 8 Conn. Rep. 498. an indict Per Cur. Hosmer, C. J. It is unquestionably established, And under that on an indictment for murder, a person may be found guilty ment for of manslaughter only. Upon the same principle, if the indict- murder, a ment charge an attempt to commit the former crime, the delinquent may be convicted of the latter. XVIII. OF THE VERDICT. 1. COMMONWEALTH V. `HOLMES, Oct. T. 1821, 17 Mass. Rep. 337. defendant may be found guil ty of man slaugter. A general Per Cur. Parker, C. J. If there be good and bad counts in verdict of guilty will the same indictment, and a general verdict of guilty returned, be sustain ed, though the verdict must be applied to the good ones. some of the counts in the indict ment are bad. As each count is a 2. BURK V. THE STATE, June T. 1809, 2 Har. & Johns. Md. Rep. p. 429. Buchanan C. J. There is is no principle better established, than that if a general verdict of guilty be found on an indictment containing several counts, it is sufficient, if one is good, although all the rest are bad. S. P. Brown v. The Commonwealth, 8 Mass. Rep. 63. 3. UNITED STATES V. FURLONG, ET AL. Feb. T. 1820, 5 Wheat, U. Per Cur. Johnson, J. distinct sub tinct substantive charge; stantive Each count in an indictment is a disand if the verdict conform to any one charge, and of the counts, which in itself will support the verdict, it is suffi Judgment cannot be XIX. OF THE JUDGMENT. 1. STATE V. JONES, May T. 1820, 2 Yerger's Tenn. Rep. 23. given for a ment was rendered against him in his absence. corporal punish Per Cur. Haywood, J. Another question is, whether judgment a ment can be given in the absence of the defendant. The law gainst any one who is is laid down in Duke's case, 1 Salk. 400, where it is said, that absent, ali judgment cannot be given for a corporal punishment against any one who is absent, though a judgment for a fine may. See Queen v. Templeman, 1 Salk. 56. ter where the judg ment is merely a fine. If no issue is joined bo tween the state and the defend ant, the 2. STATE V. FOOT, 1 N. Ca. Law Repository, 510. Upon an indictment for maiming, the defendant was found guilty, and on a motion to arrest the judgment, one reason was, that no issue was joined between the state and the defendant. Per Cur. Cameron, J. Among the several objections taken judgment to the authority of the court, to award judgment, on the verrested. dict against the defendant, it is alleged that no issue was joined between the state and the defendant. must be ar On examining the record, it is ascertained that the objection is true, in point of fact-the legal consequence is, that there was nothing submitted to the jury, and that their verdict is nugatory. Let there be a venire facias de novo. Enfant.* I. WHAT ACTS OF AN INFANT ARE VOID OR VOID- II. WHO MAY AVIOD THEM, p. 45. III. WHEN THEY MAY BE AVOIDED, p. 45. IV. WHAT AMOUNTS TO A CONFIRMATION OF VOID- V. LIABILITY OF INFANTS FOR CRIMINAL ACTS, 1. WHAT ACTS OF AN INFANT ARE VOID OR VOIDA BLE. 1. ROOF V. STAFFORD, May T. 1827, 7 Cow. N.Y Rep. 179. JOHNSON V. PARKER, 1 Nott & M'Cord's S. Ca. Rep. 1; RoвERTS V. WIGGINS, 1 N. H. Rep. 74; WRIGHT V. STEEL, 2 ib. 51; HUNT V. PEAK, 5 Cow, Rep. 475. Per. Cur. Woodworth, J. I understand it to be now well set- What acts tled, that the contracts of an infant, not only such as take effect are void or by his actual delivery of the subject matter, (as a feoffment with livery, or a sale and manuel delivery of goods;) but all his deeds, whether at the common law or under the statute of uses, *An infant may bind himself for meat, drink, apparel, and proper instruction. This limited capacity of contracting is for the benefit of the infant to enable him to procure such things as are necessary for his station in life, and to secure him from want; Honds v. Sloney, 8 T. R. 578. And necessaries for an infant's wife, and necessaries for him; Turner v. Frisby, 1 Stra. 168. But it is held an infant is in no case liable where he lives with his parent who provides him with necessaries; Borensdale v. Greville, 1 Selw. N. P. 127; Cook v. Denton, 3 C. & P. 114. Whether articles furnished are necessaries or not, is to be left to the jury; and if they find Fome of them necessaries, and others not, they will find for the plaintiff only to the amount of the former; Madox v. Miller, 1 M. & S. 738. And it seems that money lent to an infant to be laid out in nccessaries, which is actually done, the money may be recovered; but it is otherwise if the money lent be applied to other purposes; Ellis v. Ellis, 12, 197. Not for money lent to him generally; Probart v. Knowth, 2 Esp. 472; Carnegia v. Waugh, 2 D. & R. 277. And it has been held, that an infant is liable on a contract for instruction proper to his station in life; but not on a covenant in an indenture of apprenticeship; Gilbert v. Fletcher, Cro. Car. 179. 6 VOL. VI, of an infant voidable. A deed of bargain and sale by an whether relating to real or personal property are voidable merely, and not void. 2. ROBERTS V. WIGGIN, Sept. T. 1817, 1 N. H. Rep. 73. JACKSON The plaintiff conveyed the premises to one M'Intyre, who infint is not was an infant, and who at the same time gave the plaintiff a mortgage. M'Intyre became of age, and the defendant extended the land for a debt due to him from M'Intyre. void but voidable. A warrant of attorney by an infant is void. Where the court sees the contract Held by the court, Woodbury, J. that the mortgage was voidable, and none but the infant or his legal representatives could avoid it. Conveyances of real estate as they take effect by manuel delivery, are voidable and not void. 3. BENNETT V. DAVIS, ET AL. Oct. T. 1826, 6 Cowen's N. Y. Rep. p. 393. Held by the Court that a warrant of attorney by an infant to confess judgment is void. 4. FRIDGE V. THE STATE, FOR THE USE OF, &c. Dec. T. 1830, 3 Gill & Johns. Rep. 103. WENDALL V. BLANCHARD, 2 N. H. Rep. 456. Per Cur. Buchanan, C. J. Some contracts made by infants is prejudi are binding; such as contracts for necessaries. Some are void, cial to the and others voidable only, such as contracts that may be for the infant they will hold it benefit of the infant. But a contract that the court can see and void. pronounce to be to the prejudice of the infant is void. In Dearborn v. Eastman, et al. 4 New Hampshire Rep. 441, the court say, that in executory contracts the infant may at his election consider them void, or voidable; but that a feotfment could not be considered void, as other conveyances in pais by an infant, they standing upon the same ground as executory contracts, and may be considered by the infant as void or voidable. * A bond with a penalty given by an infant is void; Boyle v. Donnelly, 8 T. R. 577. A feoffment with lives by an infant is voidable, and not void. So also a conveyance of land by lease and release, is voidable only; Zouch v. Parsons, 3 Burr. 1794. An exhange of land by an infant is voidable; Co. Litt. 516. So also is a rent charge granted by an infant; Hudson v. Jones, 3 Mod. 310. So also is a surrender; Zouch v. Parsons, 3 Burr. 1806; Lloyd v. Gregory, Cro. Car. 502. But a warrant of attorney of, is absolutely void, |