[Dinkey v. The Commonwealth.] citizen against the peril of repeated prosecutions, is broad enough for all the purposes of public justice. If, therefore, the present plaintiff in error might have been convicted of, and punished for fornication, on the indictment for seduction, that record ought to have been held to be a good defence to the indictment for fornication. If there was no legal impediment to his conviction of fornication on the first indictment, the conclusive presumption is, that he was acquitted on the pure justice of his case; and we are not at liberty to ascribe the verdict of not guilty to any cause except the belief of the jury that he was innocent of fornication, as well as of all other offences then charged against him. The general rule is, that where an indictment charges an offence which includes within it another and less offence, the party may be convicted of the latter, if he is guilty; and acquitted of the former, if the evidence makes it proper. For instance; on an indictment for murder, there being no sufficient proof of malice, the jury may find a verdict for manslaughter. A person charged with burglary and stealing, may be convicted of larceny, if the proof fail of the breaking and entering. In Strous v. The Commonwealth, 5 Barr 83, it was held that the defendants, indicted for a riotous assault and battery, might be convicted of assault and battery only. This court then declared it to be enough to prove so much of the indictment as shows that the defendant has committed a substantive offence therein charged. It would be easy to multiply cases to this effect, if it were necessary. It is proper, however, to add, that on an indictment for a felony, there cannot be a conviction for a minor offence included within it, if such minor offence be a misdemeanor. And this is the foundation of the rule, that an acquittal of a felony is no bar to another indictment for the same act, charging it as a misdemeanor, and vice versa. Illicit carnal connexion is called by different names, according to the circumstances which attend it. Unaccompanied with any facts which tend to aggravate it, it is simple fornication. When it causes the birth of an illegitimate child, it is fornication and bastardy. Where the man who commits it, is married, it is adultery. When the parties by whom it is done are related to one another within certain degrees of consanguinity or affinity, it becomes incest. Where it is preceded by fraudulent arts (including a promise of marriage) to gain the consent of the female, who is under twenty-one years of age, and of good repute, it assumes another name, and by the statute of 1843 is called seduction. But the body of all these offences is the illicit connexion. In each case, the essential fact which constitutes the crime, is fornication. VOL. V.-17 17 130 148 246 [Dinkey v. The Commonwealth.] We cannot doubt that, on an indictment for any offence below the grade of felony, which includes illicit connexion, and of which that illicit connexion forms an essential part, the defendant may be found guilty of fornication. If the prosecution is unable to show the marriage of the defendant on a trial for adultery, he may be convicted of fornication; and of that opinion was the whole court in the case of the Commonwealth v. Roberts, 1 Yeates 6. It is every day's practice to convict of fornication alone, on indictments for fornication and bastardy, where there is reason to believe that the defendant, though guilty of the criminal intercourse, was not the father of the child. If the relationship should happen not to be made out on an indictment for incest, no court would hesitate to direct a verdict for simple fornication. There is no reason why the same rule should not prevail in a case of seduction. Fornication is included in that offence, as certainly as it is in adultery, or incest. It is as clearly implied by the word seduce as it is by any word employed in an indictment for adultery. Seduction, as used in an indictment, does not mean an enticement to any other sin than a surrender of chastity. No woman is seduced, within the meaning of the statute, until fornication has been committed on her body. Again; the illicit connexion averred in the indictment means fornication, and cannot by any amount of perverseness be supposed to mean anything else. But this is not all. The indictment recited in this plea charges that the defendant did debauch, deflower, and carnally know the prosecutrix. This surely puts it past the power of doubt, if the plainest words in the English language can do so. Fornication then was a substantive offence charged against the plaintiff in error in the indictment for seduction. He might have been convicted of the former offence on the indictment for the latter. He was, therefore, tried for fornication on the first indictment; and if the judgment pronounced against him on the second be permitted to stand he must suffer for an offence of which there is conclusive evidence that he was acquitted before; and is twice put in jeopardy for a cause which the Commonwealth, by the demurrer, admits to be the same. The judgment of the Court of Quarter Sessions is therefore to be reversed. The defendant is discharged, and permitted to go without day. Fritz versus Commissioners. 1. In an action on a bond in favor of The Board of Commissioners of Montgomery County, alleged to have been executed by a collector of taxes and the defendant as his surety, wherein the pleas were non est factum and pay [Fritz v. Commissioners.] ment; Held, that the pleading admitted the legal capacity of the Commissioners of Montgomery county, in that name, to maintain the action. The objection to the form of action could have been raised only by plea in abatement. 2. In such a suit against the surety in the bond, one who had been a commissioner before the suit was brought, was not on that account an incompetent witness on the part of the plaintiffs, especially since the passage of the sixth section of the Act of 16th April, 1840, relating to executions, by which such a disqualification is provided against. 3. If the recollection of the subscribing witness has failed in relation to the execution of the bond, its execution may be proved by the admissions of the obligor, and otherwise. 4. The addition of a subscribing witness to a bond, after its execution, made at the instance of one of the obligors, and whether the other obligor was present or not, did not distinctly appear, but not made at the request of the obligees or with their knowledge, does not render the bond invalid. ERROR to the Common Pleas of Montgomery county. This was an action to December Term, 1850, in the name of The Commissioners of Montgomery county against Samuel Fritz. It was an action of debt on bond. Defendant pleaded non est factum, and payment, &c. October 14th, 1850, judgment in favor of the Commissioners of Montgomery county (plaintiffs), for $1202.45. Suit was brought to November Term, 1847, in the name of "The Commissioners of Montgomery county," against Samuel Fritz, and plaintiffs filed a declaration alleging defendant to have executed a certain bond, dated the 27th day of July, A. D. 1845, in which he, together with Jacob S. Sands, was bound to the Board of Commissioners of Montgomery county, in the sum of $3500, conditioned that said Jacob S. Sands (collector of taxes of Douglass township) should pay into the county treasury the amount of his duplicate, deducting his commissions, &c. The defendant below (Samuel Fritz), admitted he had been security for the years 1843-4, but denied the execution of this bond; and the plaintiffs, to support their case, called Nathan Wagonhurst, the only subscribing witness to the bond, who testified that he subscribed his name to the bond as a witness; that he did not see either Sands or Fritz sign the bond; that he had no recollection of Fritz being present at the time; that witness signed, as a witness, at Sands' house; Sands sent for witness to come over and witness the bond; remembered no one present but Sands and himself, and probably Joseph Nettles; he never saw Fritz write, and don't know anybody but Fritz's family who know his handwriting. Witness said he knew Sands' handwriting; think the signature is Sands'; the body of bond looks as if Sands filled it up; could not say, from his knowledge of Sands' handwriting, that the signature "Samuel Fritz" is his; it looks as if Sands had done both-but can't say. Fritz had a daughter and son nearly grown; they are yet alive. [Fritz v. Commissioners.] Plaintiff then called Samuel H. Graff, who, being sworn, said: Some time after Sands absconded Fritz came to my house; I was then Commissioner; he wanted to see how much Sands owed on his duplicate. [Here the testimony of Samuel H. Graff was objected to: Court stated that they would first hear the statement of the witness.] Witness then proceeded, under objections by defendant, and stated:-That Fritz complained that it would be hard for him to pay; I said that N. Wagonhurst was witness to bond; he (defendant) replied none was present when he signed the bond; that he had been his bail before in several bonds which Sands had paid off and brought to him; he said he had not hesitated to sign the bond, but there was no witness, and if this witness was to it his name must have been obtained afterwards; I know that Fritz paid over money to me, which he said he had collected, and I paid it over to the treasurer; he told me the day Sands left home, on Easter Monday; that Sands drew out the names of several persons from that duplicate on paper, and put the different amounts of tax opposite, that each man owed, and that he had left it in the possession of his family, so that when the persons who owed the money called, they should know how much to receive; Fritz wanted to know of me if he could not collect that money, and I said he could; he collected some tax and paid it over; this conversation was in the spring of 1846; the tax Fritz paid was on the duplicate of 1845; he paid it shortly before July 27, 1846; I paid it to the county treasurer on that day; I did not tell him it was that of 1845; neither of us mentioned the year; we talked of the duplicate Sands had carried off; it was the last duplicate Sands ever had; Fritz did not tell me to credit the money to the tax of 1845; Fritz never pretended to me that he had not signed the bond; I was not sitting in the Board of Commissioners when he called to see the bond; the Treasurer made the entry I refer to, in the county books; Sands was collector for several previous years; I had nothing to do with any previous years. Testimony of Samuel H. Graff, received under objections of defendant, and defendant excepted. Thomas B. Evans was then called by plaintiffs below:-Stated he was clerk for Commissioners; that Sands owed only on his last duplicate; he knew nobody acquainted with Fritz's handwriting; good deal of similarity between writing in body of bond and Fritz's signature to the bond; did not know that Fritz was informed it was the tax of 1845; the balance due on this duplicate is, county tax, $381.76, state tax, $599.86; both unpaid except allowance of 64 cents. Sands was collector for 1842-3-4-5; Fritz had been security for him before, but don't recollect how many years; duplicate for 1844 was settled November, 1845, and all bonds, except for 1845, given up. Fritz had no notice that [Fritz v. Commissioners.] duplicate for 1844 was settled; Sands went off in spring of 1846. Commissioners' and Treasurer's books shown to witness and identified by him. Plaintiffs then read the bond in evidence, under objection of defendant; defendant excepted. Defendant below then offered James B. Evans, witness:-Who testified that he knew Sands' handwriting; that the body of the bond was Sands' writing, and that between that and signature Samuel "Fritz" there is great similarity; thinks all signatures and body the same ink. Verdict for plaintiffs for $1202.45. It was assigned for error: 1. There is no person named as plaintiffs to the suit, in whose favor judgment could be entered. 2. The court erred in admitting Samuel H. Graff as a witness in the case. 3. The court erred in admitting evidence of admissions of defendant, without any evidence of the execution of the bond. 4. The court erred in permitting the bond to be read in evidence. The case was argued by Thomas for plaintiff in error. 1. In Glover v. Wilson, 6 Barr 290, the suit was brought in the names of the late Commissioners, who were parties to the bond, and not in the name of the board existing at the time of suit. The Board to whom the bond in this suit was given, had gone out of office at the time suit was brought. 2. Graff stated that he was a Commissioner in the spring of 1846. He was then a party to the bond when it was given, and a party to the suit when it was brought, and therefore not competent: 2 Barr 46, Clover v. Painter; 2 Id. 425; 1 Id. 364. 3. The court erred in admitting evidence of admissions, while there was evidence of the existence of better testimony, to prove the execution of the bond, and the circumstances connected with the execution. Wagonhurst, the subscribing witness, did not see defendant sign the bond; he did not remember that the defendant was present. Witness also stated, that he believed Joseph Nettles and some of Sands' family were present when he signed as a witness. After this testimony was received, the court admitted evidence of admissions, without any effort to get the other witnesses, or to prove the handwriting of defendant. This was admitting secondary evidence, when it appears there was better evidence. 4. The addition of a subscribing witness to a bond, without the M |