person bearing a public character or office in the parish. Lewis, 4 Esp. 1.

Earl v.

So also with regard to private ancient documents, it must appear that they came from the custody of some person connected with the property. Thus, where upon an issue to try a right of common, an old grant to a priory, brought from the Cottonian MSS. in the British Museum, was offered in evidence, it was rejected by Lawrence, J., the possession of it not being sufficiently accounted for, nor connected with any one who had an interest in the land. Swinnerton v. Marquis of Stafford, 3 Taunt. 91. So a grant to the abbey of Glastonbury, contained in an ancient MS., deposited in the Bodleian Library, entitled Secretum Abbatis, was rejected, as not coming from the proper repository. Mitchell v. Rabbets, cited Id. See also R. v. Barber, 1 C. & K. 434, 47 E. C. L.

Proof of seals. Where necessary, a seal must be proved by some one acquainted with it, but it is not requisite to call a witness who saw it affixed. Moises v. Thornton, 8 T. R. 307. Some seals, as that of London, require no proof. Doe v. Mason, 1 Esp. 53. So the seal of the superior ecclesiastical courts, and other superior courts, 8 & 9 Vict. c. 113, s. 1, ante, p. 163. But the seal of a foreign court must be shown to be genuine. Henry v. Adey, 3 East, 221 (but see 14 & 15 Vict. c. 99, s. 7, ante, p. 164). So of the Bank of England.' Semb. Doe v. Chambers, 4 A. & E. 410, 31 E. C. L. So of the Apothecaries' Company. Chadwick v. Bunning, R. & Moo. 306.

For the provisions of the 8 & 9 Vict. c. 113, dispensing with proof of the seals of corporations, joint stock or other companies, further extended by 14 & 15 Vict. c. 99, see ante, p. 165.

As to seals attached to documents in the course of proceedings out of England see the statutes referred to, Tayl. on Ev. 6th ed., pp. 17-21. Although the seal need not be shown to be affixed by the proper person, yet the deed may be invalidated by proof of the seal being affixed by a stranger, or without proper authority. Clarke v. Imperial Gas Co., 4 B. & Ad. 315, 24 E. C. L.

Proof of private documents-attesting witness. The execution of a private document, which has been attested by a witness subscribing it, must be proved by calling that witness; and this was formerly the case although the document was not such as by law was required to have the attestation of a witness.2 Thus it was held that if a

1 The seal of a private corporation must be proved. Den v. Vreelandt, 2 Halst. 352; Leazure v. Hillegas, 7 S. & R. 313; Foster v. Shaw, Id. 156; Jackson v. Pratt, 10 Johns. 381. S.

2 Upon the subject of proof by attesting witnesses, see 1 Stark. on Ev., new ed. 320, and notes.

In order to prove the execution of a paper by secondary evidence, it is only necessary for the party to show that he has neglected nothing which afforded a reasonable hope of procuring the testimony of the subscribing witness, Conrad v. Farrow, 5 W. 536. The absence of a witness from the State, so far as it affects the admissibility of secondary testimony, has the same effect as his death. Allen v. Borghaus, 8 W. 77;

convicted of manslaughter become accessories. See post, tit. Manslaughter. It is said in the older books that in forgery all are principals: (see 2 East, P. C. 973;) but this must be understood of forgery at common law, which is a misdemeanor. Id.

Aiders and abettors, or principals in the second degree in felonies. Aiding and abetting a person to commit a felony is in itself a *182] *substantive felony, whether the felony be such at common law or by statute. R. v. Tattersall, 1 Russ. Cri. 157, 5th ed. An aider and abettor is also called a principal in the second degree. R. v. Coalheaver, 1 Lea. 64; Fost. 428.

To make a man principal in the second degree he must be present at the commission of the felony. R. v. Soare, 2 East, P. C. 974; Russ. & Ry. 25; R. v. Davis, Id. 113; R. v. Badcock, Id. 249, and other cases in the same report. By presence is meant such contiguity as will enable the party to render assistance to the main design.

With regard to what will constitute such a presence as to render a man a principal in the second degree, it is said by Mr. Justice Foster, that if several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each takes the part assigned to him; some to commit the act, others to watch at proper distances, to prevent a surprise, or to favor, if need be, the escape of those who are more immediately engaged, they are all, provided the act be committed, in the eye of the law present at it. Foster, 350. Thus where A. waits under a window, while B. steals articles in the house, which he throws through the window to A., the latter is a principal in the offence. R. v. Owen, 1 Moody, C. C. 96, stated post. There must be a participation in the act, for although a man be present whilst a felony is committed, if he takes no part in it and does not act in concert with those who commit it, he will not be a principal in the second degree, merely because he did not endeavor to prevent the felony, or apprehend the felon. 1 Hale, 439; Foster, 350. So a mere participation in the act, without a felonious participation in the design, will not be sufficient.

1 State v. McGregor, 41 N. H. 407; Brown v. Perkins, 1 Allen, 89. The abettor must be in a situation actually to render aid, not merely where the perpetrator supposed he might. Proof of a prior conspiracy is not legal presumption of having aided, but only evidence. But if a conspiracy be proved, and a presence in a situation to render aid, it is a legal presumption that such presence was with a view to render aid, and it lies on the party to rebut it, by showing that he was there for a purpose unconnected with the conspiracy. Commonwealth v. Knapp, 9 Pick. 496. Ône who is present and sees that a felony is about to be committed, and does in no manner interfere, does not thereby participate in the felony committed. It is necessary, in order to make him an aider or abettor, that he should do or say something showing his consent to the felonious purpose, and contributing to its execution. State v. Hildreth, 9 N. C. 440. [Kemp v. Commonwealth, 80 Va. 443.] When one is present at the commission of a felony, though he gives no active assistance, but only remains near for the purpose of watching and giving aid if necessary, he is properly charged as principal. Doan v. State, 26 Ind. 495; State v. Squares, 2 Nev. 226; Commonwealth e. Chapman, 11 Cush. 422. A person need not be present when a crime is committed to constitute him a principal. Pritchard v. State, 30 Ga. 757. An unmarried man, who is present aiding and abetting a friend in committing bigamy, may be convicted of that crime as principal in the second degree. Boggus v. State, 34 Ga. 275. S.

1 East, P. C. 257; R. v. Plumer, Kel. 109. Thus if a master assault another with malice prepense, and the servant, ignorant of his master's felonious design, take part with him, and kill the other, it is manslaughter in the servant, and murder in the master. 1 Hale, 466.

Where several persons are in company together, engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in his guilt, unless the act done was in some manner in furtherance of the common intention. Several soldiers employed by the messenger of the secretary of state to assist in the apprehension of a person, unlawfully broke open the door of a house where the person was supposed to be. Having done so, some of the soldiers began to plunder, and stole some goods. The question was, whether this was felony at all. Holt, C. J., observing upon this case, says, that they were all engaged in an unlawful act is plain, for they could not justify the breaking a man's house without first making a demand. Yet all those who were not guilty of stealing were acquitted, notwithstanding their being engaged in an unlawful act of breaking the door; for this reason, because they knew not of any such intent, but it was a chance opportunity of stealing, whereupon some of them did lay hands. Anon., 1 Leach, 7 (n); 1 Russ. Cri. 162 (j), 5th ed. See also, R. v. White, R. & R. 99; R. v. Hawkins, 3 C. &. P. 392, 14 E. C. L., post. Three men went out into a field to shoot, and placed a target in a tree eight feet from the ground. They laid down on the ground, and each fired at it in turn. Their rifles were sighted to shoot 950 yards, and would probably be deadly at a mile. A boy in an apple-tree 393 yards off was killed by one of the shots; but it was *uncertain which of the prisoners had shot him. They were all held to be guilty of manslaughter. Reg. v. Salmon, 6 Q. [*183 B. D. 79; 50 L. J., M. C. 25. It is, perhaps, open to doubt that if only one had fired his rifle all would have been equally guilty. Lord Coleridge, C. J., said, "the death resulted from the action of the three," and Stephen, J., said, "they unite to fire at the spot in question."

Where several are present, aiding and abetting, and the punishment of principals in the first and second degree is the same, an indictment may lay the fact generally as being done by all; 2 Hawk. c. 25, s. 4; even, as in cases of rape, where from the nature of the offence only one can be a principal in the first degree. And as in almost every case the punishment of all principals is the same, this is the course that is usually followed.

It has been long settled that all those who are present, aiding and abetting when a felony is committed, are principals in the second degree, and may be arraigned and tried before the principal in the first degree has been found guilty; 2 Hale, 223; and may be convicted, though the party charged as principal in the first degree is acquitted. R. v. Taylor, 1 Leach, 360; Benson v. Offley, 2 Show. 510; 3 Mod. 121; R. v. Wallis, Salk. 334; R. v. Towl, R. & R. 314; 3 Price, 145; 2 Marsh. 465.

Accessories before the fact in felonies-bare permission-countermand. An accessory before the fact is defined by Lord Hale to be one who being absent at the time of the offence committed, does yet procure, counsel, command, or abet another to commit a felony.'" 1 Hale, P. C. 615. The bare concealment of a felony to be committed, will not make the party concealing it an accessory before the fact. 2 Hawk. c. 29, s. 23. So words amounting to a bare permission will not render a man an accessory, as if A. says he will kill J. S., and B. says, "you may do your pleasure for me." "Hawk. P. C. b. 2, c. 29, s. 16. The procurement must be continuing; for if before the commission of the offence by the principal, the accessory countermands him, and yet the principal proceeds to the commission of the offence, he who commanded him will not be guilty as accessory. 1 Hale, P. C. 618. If the party was present when the offence was committed he is not an accessory. R. v. Gordon, 1 Leach, 515; 1 East, P. C. 352. In such case he should be indicted as a principal. R. v. Brown, 14 Cox, C. C. 144. Several persons may be convicted on a joint charge against them as accessories before the fact to a particular felony, though the only evidence against them is of separate acts done by each at separate times and places. R. v. Barber, 1 C. & K. 434, 12 E. C. L.

Accessories before the fact in felonies-by the intervention of

a third person. A person may render himself an accessory by the intervention of a third person, without any direct communication between himself and the principal. Thus if A. bids his servant to hire somebody to murder B., and furnishes him with money for that purpose, and the servant hires C., a person whom A. never saw or heard of, who commits the murder, A. is an accessory before the fact. Fost. 121; R. v. Macdaniel, 1 Lea. 44; Hawk. P. C. b. 2, c. 29, ss. 1, 11; 1 Russ. Cri., 5th ed., 166; R. v. Cooper, 5 C. & P. 535, 24 E. C. L.

Accessories before the fact in felonies-degree of incitement. Upon the subject of the degree of incitement and the force of persuasion *used, no rule is laid down. That it was sufficient to *184] effectuate the evil purpose is proved by the result. On prin

ciple it seems that any degree of direct incitement with the actual intent to procure the consummation of the illegal object, is sufficient to constitute the guilt of the accessory; and therefore that it is unnecessary to show that the crime was effected in consequence of such incitement, and that it would be no defence to show that the offence would have been committed, although the incitement had never taken place.

1 When an offence is committed in one State by means of an innocent agent, the employer is guilty as a principal, though he did no act in that State, and was at the time the offence was committed in another. Adams v. The People, 1 Comst. 173. S. Where an accessory before the fact is charged in an information with hiring a certain person named to commit an arson, the information is sustained by proof that he hired the person named and another to join in the burning. People v. Thompson, 37 Mich. 118.

2 Stark. Ev. 9, 3rd ed. Where a man furnished a woman with corrosive sublimate at her request, which she took with intent to procure abortion, but he did not instigate her to take it, and his conduct was consistent with his having hoped that she would change her mind, it was held that he was not an accessory before the fact. R. v. Fretwell, 1 L. & C. 161; 31 L. J., M. C. 145. So a mere holder of stakes for a prize fight who is not present, but who afterwards paid over the stakes to the winner, was held not an accessory after the fact to the manslaughter of the man who was killed in the fight. R. v. Taylor, L. R. 2 C. C. 148; 44 L. J., M. C. 67.

Accessories before the fact in felonies-principal varying from orders given to him. With regard to those cases where the principal varies, in committing the offence, from the command or advice of the accessory, the following rules are laid down by Sir Michael Foster. If the principal totally and substantially varies: if, being solicited to commit a felony of one kind, he wilfully and knowingly commits a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. But if the principal in substance complies with the command, varying only in the circumstances of time, or place, or manner of execution, in these cases the person soliciting to the offence will, if absent, be an accessory before the fact, or if present, a principal. A. commands B. to murder C. by poison; B. does it by sword or other weapon, or by some other means; A. is accessory to this murder, for the murder of C. was the principal object, and that object is effected. So where the principal goes beyond the terms of the solicitation, if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such order or advice will be an accessory to that felony. A. upon some affront given by B. orders his servant to waylay him and beat him. The servant does so, and B. dies of the beating; A. is accessory to this murder. A. solicits B. to burn the house of C.; he does so, and the flames catching the house of D., that also is burnt. A. is an accessory to this felony. The principle in all these cases is, that though the event might be be yond the original intention of the accessory, yet as in the ordinary course of things, that event was the probable consequence of what was done under his influence, and at his instigation, he is in law answerable for the offence. Foster, 369, 370; see also 1 Hale, P. C. 617; Hawk. P. C. b. 2, c. 29, s. 18. Where the principal wilfully commits a different crime from that which he is commanded or advised to commit, the party counselling him will not, as above stated, be guilty as accessory. But whether, where the principal by mistake commits a different crime, the party commanding or advising him shall stand excused, has been the subject of much discussion.' It is said by Lord

1If W. lends A. a pistol and a short time afterwards A. kills M., and W. is present at the killing, and. just before the firing exclaims to A., "Shoot him!" and just afterwards, "Shoot him again!" then W. is an aider and abetter of the crime, even though W. supposed that A. was shooting at J. and not at M. Wynn v. State, 63 Miss. 260. One engaged in an unlawful purpose is liable for the acts of all the others engaged therein which are the natural result of such purpose. Weston v. Commonwealth, 1