A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746, in the County of Surry

time before her husband's death, and upon his death came to the defendant, and had been used in the same publick manner by her to the time of the prosecution. This was proved by some of the family, and by the woman who had frequently washed the linen.

This sort of evidence was strongly opposed by the counsel for the crown, who insisted, that, as the act allows of but one excuse, the defendant, unless she can avail herself of that, cannot resort to any other: for if the canvas was really bought of the commissioners, or of persons acting under them, which is the only excuse pointed out by the statute; why was no certificate of that matter taken at the time of the purchase, since the fourth section of the act admits of that excuse, and the second section admits of no other?

But the judge was of opinion, that though the clause of the statute, which directs the sale of these things, hath not pointed out any other way for indemnifying the buyer than the certificate; and though the second section seems to exclude any other excuse for those in whose custody they shall be found: yet still the circumstances attending every case, which may seem to fall within the act, ought to be taken into consideration; otherwise a law calculated for wise purposes may, by too rigid a construction of it, be made a handmaid to oppression. There is no room to say, that this canvas came into the possession of the defendant by any act of her own. It was brought into family-use in the life-time of her husband, and it continued so to the time of his death; and by act of law it came to her. Things of this kind have been frequently exposed to publick sale; and though the act points out an expedient for the indemnity of the buyers, yet probably few buyers, especially where small quantities have been purchased at one sale, have used the caution suggested to them by the act. And if the defendant's husband really bought this linen at a publick sale, but neglected to take a certificate, or did not preserve it, it would be contrary to natural justice, after this length of time, to punish her for his neglect. He therefore thought the evidence given by the defendant proper to be left to the jury,

and

and directed them, that if, upon the whole of the evidence, they were of opinion, that the defendant came to the possession of the linen without any fraud or misbehaviour on her part, they should acquit her and she was acquitted.

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