other man, Reason, and said they arrested him ; with that my master says, "Gentlemen, if you will go with me, you shall have your money, my wife is with child, and I am afraid she will be frightened." "No, damn you, we will go with no such Minter;" with that with great persuasion, my master got them to go to his lodging: my master said, "fetch the attorney and I will pay the money:" Reason sent Tranter for the attorney, and Reason went up with my master, who said to my mistress, "My dear, don't be frightened, here are two rascals who have abused me in the street ;" and my mistress said to me, "Go to my nephew:" I went, but he did not immediately come; when I returned I went into the room, and there was no harm then, my master was walking about the room, and Reason stood with his back to the ceiling with his face to the pistols. My master said, "Let me see your warrant:" Reason shewed it him, and he said, "Wipe your arse with it," and throwed it down upon the ground. Reason asked for civility money; my master said, "No; he would give bir none, for he had not used him well." At last Tranter came; I opened the door to him, he run up stairs, I staid to shut the door, and I heard a rustling or noise; upon which I ran up stairs after Tranter, and I saw Tranter close with my master and throw him against the closet door, and Reason took his sword and run my master through; I took Reason hold of the sword arm, and he said, "Damn me, if you don't go out of the room you shall die before your master;" I heard no pistol all that time.

Serj. Cheshire. Did you go in after the pistol was shot off to see your master?

Hargrave. No, I did not see him till after he was carried into the other room.

Serj. Cheshire. Do you know of any direction given by your master about fetching the money?

Hargrave Yes, I heard my master say to my mistress," Fetch the money, and I will pay these rascals."

Mr. Reeve. I think you say upon hearing of a scuffle you ran up stairs, and you saw Tranter run your master against the closet door. Hargrave. Yes, Sir.

Mr. Reeve. Had your master any weapon?
Hargrave. No.

Mr. Reeve, Where were the pistols? Hargrave. One was on the table, and the other in the window.

Mr. Hungerford. How far were the pistols from your master, were they within his reach? Hargrave. No, Sir.

Mr. Reeve. You say you saw him stab your

Hargrave. No; it was after Tranter came that I went up stairs again.

L. C.J. When Tranter came, you opened the door to him and followed him up stairs? Hargrave. Yes.

L. C. J. Did you hear before Tranter entered the room any noise or stroke? Hargrave. Only two or three words. L. C. J. What were those words? Hargrave. I don't know.

Mr. Hungerford. What said Reason, when your master told him he did not use him well? Hargrave. Then he was mad, he swore and called him a great many names, called him a Minter, and I don't know what.

Reason. Did not your master request us to go to the Tilt-yard coffee house? Hargrave. No; he said, "If you will go with me I will pay the money;" you said, "I will go with no such Minter." L. C.J. Did your master desire them to go to any particular place?

Hargrave. He said, "If they would go with him to Westminster, he would pay them the money;" but they refused and said, "they would go with no such Minter.”

L. C. J. Did your master propose to go to his own lodgings?

Hargrave. Yes, when they would not let him go there.

L.C. J. Why would he had them have gone to Westminster?

Hargrave. Because for fear of frightening his wife, she was great with child; with great persuasion he got them to go to his lodging.

Reason. Did he not ask us to go to his lodging?

Hargrave. I don't know, I did not hear him. L. C. J. You said just now with much ado your master persuaded them to go to his lodging, now you say you did not hear him ask them to go; I only admonish you not to be too hasty in your answers, but to consider. Who proposed going to your master's lodging?

Hargrave. Why my master, when they would not go there.

Reason. Did not I ask him to go to the Crown-tavern?

Hargrave. Not that I heard; I heard Reason bid Tranter go for the attorney.

L. C. J. Did you hear Tranter ask Mr. Lut terell to go to the Crown-tavern? Hargrave. No, Sir.

Tranter. At whose desire did I go to the attorney?

Hester. I don't know indeed, it was of a Tuesday.

Serj. Cheshire. Do you know what month? Hester. I don't know. Being in the kitchen I heard my master return again, when he was but just gone out before; hearing his tongue I stepped to the stairs, and wondered be should come in again so soon; I saw him come in with another man, I heard him go up stairs, I listened, and I heard him speak loud; I understood he was arrested, I was surprised at it; I staid a little while till he went up, then I went up to my mistress, because she was with child; I was afraid she would be frighted; when I came up she was in the dining-room with my master and Mr. Reason, and in a little time she went out of the diningroom into the bed-chamber, and she was heaving, and in some time my master and Mr. Reason was in the room together, my master talked and walked about the room; I staid with my mistress some time, and at last I heard my master go up stairs, and he came down immediately again; upon this I went into the room, my master had two pistols, and he put them on each side of his coat; I asked him, "What do you do with those pistols? if my mistress comes she will be frighted:" Says he, "I don't design to do any hurt." Then be told me how they had abused him in the street, and called him Minter; this man (pointing to Reason) was in the room all the time. Sir, says I, pray lay down the pistols, and he came and lay down both the pistols on the table at my request, and he had only his came in his hand. I went into the room again to my mistress, and when I came there she was in her closet taking out some money: She got up, locked the closet door, and sat down on the bel-side, and was frighted. I persuaded her hot to be frighted: Afterwards I heard somebody knock at the door, and I stepped out to the top of the stairs to see who came in, and I Saw I suppose that man (pointing to Tranter): the boy let him in, I saw him come along the entry, and the boy follow him: Upon that I went in to my mistress, and said there was a second person come, I don't like him, shall I stop him on the stairs; he went into the room, and I saw the boy follow him; I went in to my mistress again for fear she should be frightened;

I heard a noise, but did not know what it was; I heard the noise grow greater; I stepped softly through the passage, threw open the dining-room door, and I saw this gentleman (pointing to Reason) stabbing my master with all his might and main, and be on his back on the floor, lifting up his bands as if he begged for mercy. The other bailiff had his back towards me, standing by the side of my master; I ran to the door and cried out murder; then off went the pistol: I was frightened, for I thought they had shot after me; and in about two minutes there went off another.

Mr. Hungerford. In that place where your master was, could he come at the pistols? Hester. No, my master had his two hands lifted up thus.

Mr. Hungerford. Had your master any thing in his hand?-Hester. No.

Serj. Cheshire. What condition did you leave your master in when you went out of the

room ?

Hester. He was upon the ground on his back, and his two hands lifted up thus, and Mr. Reason stabbing him when upon the ground; he stabbed him upon the left side.

Serj. Cheshire. I ask you, consider, by the oath you have taken, whether the pistol did go off till after you had left your master, and he was stabbing of him?

Hester. It was after that I saw him, within two minutes after, upon my crying out murder the people came up stairs.

Reason. How long was this after Tranter came?-Hester. Immediately.

Reason. How long was it after Tranter came in before you saw this?

Hester. Not long, all the action was not long.

Mr. Strange. You did not observe where the pistols lay ?-Hester. No.

Mr. Strange. Did you observe your master had any thing in his band?

Hester. No, I did not.

L. C. J. Did you see your master when he went out in the morning?

Hester. No, I heard him.

L. C. J. You saw him when he returned? Hester. Not till he was up in the dining

room.

L. C. J. Had your master any sword on? Hester. I believe he had, I did not mind. L. C. J. When your master came in and Reason after him, you heard your master talk of an arrest, and that you had the curiosity of hearing what passed between them; did you hear any words of heat or passion?

Hester. No, my lord, I heard my master talk something, by which I understood my master was arrested.

L. C. J. Did your master seem angry?

Hester. Yes; because they seemed so uncivil, that they did not come and give him notice of it,

Mr. Hungerford. You say you saw your mistress telling money, can you guess at the quantity of it ?-Hester. No.

1

had done, I took my leave of him. In about an hour afterwards I was sent for again; when I came there, I met Mr. Vernon and Mr. Haynes, justices of the peace; one of the justices gave Mr. Lutterell his oath, and there being no clerk there, desired me to take his sup. from MS. Buller, J.) though at the trial the judge, (Ashhurst, J.) left it to the jury to consider, whether from the whole of the evidence they were satisfied that the deceased, at the time she made the declarations, was convinced of the danger of her situation, yet upon a reference to the judges in Michaelmas Term, 1792, they all agreed, that whether the deceased thought herself in a dying state or not, was matter to be decided by the judge in order to receive or reject the evidence, and that that point should not be left to the jury.

one Church, a bailiff in the same street, and desired me to put it home to him: I did; upon which he made me the same answer, "That be was barbarously murdered;" he wanted spirits, or would have expressed himself more fully on this I prayed by him, and when I the fact itself, and the party by whom it was committed. Evidence of this sort is admissible in this case on the fullest necessity; for it often happens that there is no third person present to be an eye-witness to the fact, and the usual witness in other felonies, namely, the party injured himself, is gotten rid of. But in order to preserve, as far as possible, the purity and rectitude of such evidence, it must appear that the deceased at the time of making such declarations was conscious of his danger; such consciousness being considered as equivalent to the sanction of an oath," [and as not greater; therefore if the testimony upon oath of any person (as of an attainted convict) would not be received, so neither shall his dying declaration. See George Drummond's Case, Old Bailey, September Sessions, 1784. Leach's Cases in Crown Law.-Upon the same principle, it may be conjectured, that the dying declarations of a person, of whom it should be proved that at the time of making them, he did not believe in a future state of moral retribution, would not be received], " and that no man could be disposed under such circumstances to belie his conscience: none at least who had any sense of religion. But such consciousness need not have been expressed by the deceased: it is enough if it might be collected from circumstances, and the Court are to judge of this consciousness previous to the admission of this sort of testimony."

In conformity to this last position, it appears that in Margaret Tinckler's Case, Durham, 1781, (cit. East Pl. Cr. ub. sup. from MS. Gould, J. and MS. Crown Cases reserved) the question, whether her declarations were made under a consciousness of her danger, was upon a respite of execution referred to the determination of the judges.

And again, in Thomas John's Case, Carmarthen Spr. Sess. 1790, (cit. East Pl. Cr. ub. sup. from MS. Buller, J.) the Court was of opinion, that the evidence of the state of the wife's health at the time the declarations were made was sufficient to shew that she was actually dying, and that it was to be inferred from it that she was conscious of her situation: and no particular direction was given to the jury on the subject. The jury having found the prisoner guilty, this point was (among others) referred to the judges, who at a conference in Easter Term, 1790, all agreed that it ought not to be left to the jury to say whether the deceased thought she was dying or not; for that must be decided by the judge before he receives the evidence.

And again, in Henry Welbourne's Case, Lincoln Summer Ass, 1792, (cit. East Pl. Cr. ub.

It is not stated from what principle this doctrine was deduced, which is to be regretted, since it may be thought that the question, whether at a given time a person did or did not think that his death, was at hand, is a mere question of fact, perfectly distinct from any point of law, and perfectly free from any matter of legal inference; and accordingly in the case last cited, it has appeared, that at the trial the judge left the consideration and decision of it to the jury. So, too, in the Case of William Woodcock, who was tried at the Old Bailey, January Session, 1789, before Lord Chief Baron Eyre; present Mr. Justice Ashburst, and Mr. Serjeant Adair, Recorder. (See Leach's Cases in Crown Law). The judge, noticing a doubt, whether a certain examination upon oath, taken by a magistrate, of the deceased, was such a deposition as could be read under the statutes of Ph. and M. expressed bimself as follows: "My judgment is, that inasmuch as she was mortally wounded, and was in a condition which rendered almost immediate death inevitable, as she was thought by every person about her to be dying, though it was difficult to get from her particular explanations as to what she thought of herself and her situation, her declarations, made under these circumstances, ought to be considered by a jury, as being made under the impression of her approaching dissolution; for resigned as she appeared, she must have felt the hand of death, and considered herself as a dying woman. She continued to repeat the facts she disclosed, rationally and uniformly, from the moment her senses returned, until her tongue was no longer capable of performing its office. Declarations so made are certainly entitled to credit; they ought therefore to be received in evidence: but the degree of credit to which they are entitled must always be a matter for the sober consideration of the jury, under all the circumstances of the case."

As to the respective provinces of judges and juries, see vol. 6, pp. 967. 992. Bushell's Case, 999. 1012; the modern prosecutions prior to the Libel Act (stat. 32 G. 3, c. 60), and particularly the Case of Francklin, A. D.