quently pressed by Miss Stout to stay at her mother's house when the assizes brought him to Hertford, but he preferred sharing the lodgings of his brother.

On one occasion however, that of the spring Assizes, 1699, the elder Cowper was detained in town, | and Spencer, with the natural desire of a young barrister to save himself needless expense, accepted her invitation. Arrived at Hertford he found that his usual lodgings had been kept for him, so that there was nothing to be done but to take them. He dined with the Stouts, explained to them the unavoidable disappointment, and returned to their house in the evening for the purpose of paying the young lady some interest upon an investment he had made for her. As the evening passed on the mother left the room. About eleven Miss Stout ordered her maid to warm Mr. Cowper's bed, to which he made no objection, and the servant accordingly went upstairs. In a quarter of an hour's time she heard the front door slam, and after an uncertain interval spent in dawdling after the manner of maidservants, she came down to find the parlor empty. Neither Miss Stout nor Mr. Cowper returned, but the mother seems to have felt no great uneasiness, and like a thundershock came the news in the morning that her daughter's body had been found floating in the mill-pond.

On the same day a hurried inquest was held, and an open verdict returned. Cowper, without again visiting the mother's house, left the town with the rest of the bar, and at first the whole matter seemed likely to blow over. But as we all know, tongues in a country town will wag, and it was not long before scandalous stories got afloat affecting the poor girl's reputation. Mrs. Stout too had her dormant suspicions roused, when on examination of her husband's affairs, she found the estate deficient by £1,000 of the figure at which she had estimated it. The Quakers loudly protested that it was an impossibility that one possessed of "the inner light," although a backslider, should commit suicide, and the conjoint influence of all these causes led to an exhumation of the body on April 28th, at which six medical men were present. Five of these unhesitatingly agreed that the deceased was not drowned, but was dead before being thrown into the water, and as the dissentient happened to be Sir William Cowper's family surgeon, his refusal to join in his colleagues' opinion only increased the burden of suspicion. At this point another circumstance came to light. It appeared that on the very night of Miss Stout's death three strangers took lodgings in the town, and were overheard talking of the young lady, one of them saying that she had thrown him over, but a friend of his would be even with her by this time. These men were seen in Cowper's company next day, and it further came out that they had spent the whole of the previous afternoon in the town, although they only went to their lodgings little before midnight, and one of them was then heated with exertion and covered

with dirt. These mysterious visitors were traced, and turned out to be Marson and Stephens, two London attorneys, and one Rogers, a scrivener.

And now the whole town was aflame with an excitement which rapidly spread throughout the kingdom, and to which the political passions, so violent at that epoch, added fuel. The Cowper family stood in the front rank of Whiggism, and were consequently, in the opinions of their Tory and Jacobite opponents, capable of any crime. An unfortunate liaison in which William Cowper was involved extended its prejudicial effect to his brother, and we may remark in passing, subsequently gave Voltaire occasion to assert in his "Philosophical Dictionary" that the chancellor of England both practiced and defended polygamy! From every side arose an outcry for inquiry, and Spencer Cowper, Marson, Stephens and Rogers were arrested, examined before Holt, C. J., and committed for trial. Finally on July 16th they were duly arraigned for murder at the Hertford assizes before Baron Hatsell.

Jones for the prosecution opened his case more strongly than his subsequent proofs warranted. The unexplained movements of Cowper, the position of the body when found, the unhesitating statements of the medical witnesses, and the strange actions of the three lesser prisoners however made a heavy case of suspicion, and it is evident that at the commencement of the case the judge was prejudiced against the defense.

An initial point of some interest was raised. The prosecution having challenged certain jurors, Cowper called upon them to show legal cause for their challenges. Jones contended that he had the same right of peremptory challenge as the prisoners, but Cowper quoted Hale's Pleas of the Crown, page 259, and a statute of 33 Edward I, where it is expressly enacted that the king shall not challenge without cause, and the judge held with him that the prosecution had no right of peremptory challenge. Cowper however waived the point, and the jury being sworn, the first witness called was the deceased's maidservant, Sarah Walker. The material part of her evidence has already been given. In cross-examination Cowper elicited the fact that she had on two previous occasions bought poison for her mistress, but she cleared this up by showing that it had been used to poison an unruly dog.

Next came the witnesses as to the finding of the body. Of these there were no less than ten who all agreed that the corpse was floating in water some five feet deep, portions of the dress being above the surface, and the whole body being only just submerged. The head and right arm were entangled in the stakes of the mill-dam, and there were various bruises around the neck, but only such as might easily have been produced by friction against the wood. No water was in the body, and only a little froth oozed from the nostrils.

After some minor and irrelevant testimony, five of

the doctors who had assisted at the exhumation were called. The body had been found in a remarkable state of preservation, and all agreed with great positiveness that deceased could not have been drowned, basing their opinion on the ground that if she had come by her death in that manner her inner parts would have at least some water in them, and would consequently have putrefied. The opinion of Doctor Woodhouse may be taken as summarizing their united views: "My opinion is that no person is drowned by water but he must have a great deal of water within him, a great deal of water in the stomach, and some in the lungs." B. Hatsell "Pray let me ask you a question; some of the witnesses said that if a person be drowned, and lies dead a great while, the inwards will be putrefied - what is your opinion of it?" Doctor Woodhouse "No doubt, my lord!" As to the point of the floating of the body, which the prosecution alleged was a sure sign of death before immersion, the doctors were not so positive, but they agreed that they had never met with a case of the body of a drowned person floating so soon after death. Upon this the judge remarked that Doctor Browne "has a learned discourse in his 'Vulgar Errors' upon this subject, concerning the floating of dead bodies. I do not understand it myself, but he hath a whole chapter about it."

I

Pat upon the quotation of Vulgar Errors, Edward Clement, an old sailor, stepped into the box and varied the proceedings by a narration of his experiences in the battle off Beachy Head when he saw several thrown overboard during the engagement, particularly one that was his friend and killed by his side, the sum of the whole being that all that were so killed and thrown overboard floated. He also instanced the well known practice of tying shot to the feet of those who are buried at sea. For the reverse fact, he quoted the shipwreck of the Coronation, and at the risk of a little irrelevancy we will let the old salt tell his own tale. "Have you seen a shipwreck? A. Yes, the Coronation in 1691. was then belonging to the Duchess, under the command of Captain Clement. We looked out and see them taking down their masts; we saw the men walking up and down on the right side and the ship sink down and they swam up and down like u shoal of fish one after another; and I see them hover one upon another and see them drop away by scores at a time; and there was an account of about nineteen that saved themselves, some by boats and others by swimming; but there was no more saved out of the ship's complement which was between five hundred | and six hundred, and the rest I saw sinking downright, some twenty at a time.' Clement was succeeded by another tar, one Richard Gin (most appropriate name for a grog-loving mariner), and ultimately the prosecution proceeded to the case against the other three prisoners, the substance of which has already been stated. Here the prosecution rested. Cowper opened his defense at some length, first

pointing out that the whole case amounted merely to suspicion, then dealing with the medical evidence, giving a full account of his own actions on the night in question, and attributing the prosecution to the combined malice of the Quakers and of his family's political opponents. He referred to certain letters of the deceased, which he should produce and which would afford a key to the whole mystery, protesting however that if he stood there singly in the case of his own life he would not do so, but the consideration of the three innocent men arraigned with him compelled him to adopt this course. Closing in a somewhat rhetorical strain, he was told by the judge "not to flourish too much."

The first batch of his witnesses were the constable and other parish officials present at the taking of the body out of the water, but their testimony substantially agreed with that already given for the

crown.

Next came the doctors for the defense, nine London physicians and the distinguished anatomist William Cowper, who though bearing the same name was no relation to the prisoner. This gentleman gave a full expression of the whole process of drowning, pointing out the important distinction between those voluntarily and involuntarily drowned. The latter class, in their struggle for life, will invariably swallow a considerable amount of water, but the suicide, keeping his breath for a speedy suffocation, may, with sufficient resolution, attain his end without swallowing any water whatever. As to the sinking of bodies, he detailed various experiments he had made with dogs, with a view to the trial, resulting in the conclusion that dead bodies necessarily sink if there be no distention to bring them up, but that distention may happen either before or after death so that no inference can be drawn from the fact of a body floating or sinking. The reason of fastening weights to those deceased at sea he explained to be not so much to sink them, as to prevent their rising afterward. Another witness, Dr. Crell, being interrupted by the judge whilst referring to some ancient authors, retorted that he saw no reason why he should not quote the fathers of his profession in the case "as well as you gentlemen of the long robe quote Coke or Littleton in others;" a remark which shows that even so late as the close of the seventeenth century the medical profession looked rather to books than experiment for their knowledge, and had the same odd custom of valuing authorities by age, which still prevails amongst 'the gentlemen of the long robe."

The defense then called witnesses to prove deceased's melancholy state of mind, and in this they had great success, more than one person proving that she had expressed an intention of drowning herself and had confessed that she was in love with one she could not marry. This point Cowper clenched home, producing the promised letters, in which her unfortunate passion for himself was only too clearly expressed, her last letter, written four days before her death, containing the words "I

Dennehey v. Woodsum, 100 Mass. 195-198; Cardival v. Smith, 109 id. 158. These cases, as well as others cited by the appellant, would seem to hold that the entering of a nolle prosequi by the district attorney, with the consent and leave of the court, upon the indictment or information for a crime, is not a final determination of such criminal action, and therefore no action for malicious prosecution can be maintained, because it is urged that the defendant may be again arrested upon such indictment or information, and tried, and that upon such trial the accused might be convicted, which conviction would be conclusive evidence that there was probable cause for the prosecution; and upon this point the learned counsel for the appellant cite the following cases: Whart. Crim. Law, § 513; State v. McNeill, 3 Hawks. 183; Com. v. Wheeler, 2 Mass. 172; Teague v. Wilks, 3 McCord, 461; Smith v. Shackleford, 1 Nott & McC. 36; Heyward v. Cuthbert, 4 McCord, 354; State v. Blackwell, 9 Ala. 79 (N. S.): Wortham v. Com., 5 Rand. (Va.) 669; Lindsay v. Com. 2 Va. Cas. 345; State v. Haskett, 3 Hill (S. C.), 95; U. S. v. Shoemaker, 2 McLean, 114.

Such

It will be seen by an examination of these authorities that the question as to whether, after a nolle prosequi had been entered upon an indictment or information, the party could be afterward proceeded against upon the same indictment or information, was not the point decided; and if such rule was stated as the law, it was only incidental to the real question. All the authorities hold that a nolle prosequí, entered with leave of the court before the jury is impanelled in the case, is not a bar to a subsequent prosecution for the same offense upon a new indictment or information, and there are a few cases which hold that the nolle prosequi may be recalled, and the defendant tried upon the same indictment or information. All that was decided in U. S. v. Shoemaker, supra, was that a nolle prosequi entered on an indictment was not a bar to a subsequent indictment for the same cause. was the fact also in the case of Com. v. Wheeler, supra. In this last case Justice Sewell says: "A nolle prosequi is often entered by the attorney for the government on discovering some informality in his indictment. I consider that it applies to the particular indictment only, and not to the offense." Sedgwick, J., says: "I think it has been held that a nolle prosequi is not a bar even to the indictment on which it is entered, though I believe this opinion has been since overruled." Bishop in his work on Criminal Procedure, in speaking of the effect of the entry of a nolle prosequi, says: "We see therefore that a nolle prosequi during trial bars a subsequent prosecutiou for the same offense, whether on the same or any other indictment. A fortiori, it does when entered between the verdict and sentence. Entered before trial, it and the proceedings it discontinues are no impediment to a subsequent prosecution for the same offense. It simply puts an end to the particular indictment, count, or part of a count to which it is applied, without prejudice to new proceedings; but the part or whole of the present proceeding which has been reached by it cannot be revived. In the language of an old case, the king caunot afterward proceed in the same suit, but he may begin anew.'"' See § 1395. In a note to this section, the learned author refers to some of the cases cited by the learned counsel for the appellant in this case, which seems to hold that proceedings might be afterward had upon the same indictment or information, and disapproves what was said upon that question in those cases; and cites the following cases to sustain his statement in the text, that "the nolle prosequi puts an end to the particular indictment, count, or part of a count to which it is applied, without prejudice to a new proceeding; but the part or whole of the

present proceeding which has been reached by it cannot be revived." Reg. v. Pickering, 2 Barn. & Adol. 267; Bowden v. State, 1 Tex. App. 137; State v. Shilling, 10 Iowa, 106; Com. v. Dowdican, 115 Mass. 133; Brittain v. State, 7 Humph. 159; Reg. v. Mitchell, 3 Cox Crim. Cas. 93; State v. Primm, 61 Mo. 166; Moulton v. Beecher, 8 Hun, 100; Reg. v. Allen, 1 Best & S. 850.

In the case last cited, which was decided in 1862, Cockburn, C. J., says: "No instance has been cited, and therefore it may be presumed that none can be found, in which, after a nolle prosequi has been entered by the fiat of the attorney general, this court has taken upon itself to award fresh process, or has allowed any further proceedings to be taken on the indictment." Crompton, J., says: "The nolle prosequi being on the record, there is an end of this prosecution; but the question remains whether that is final or not. I rather think however that Mr. Archbold, in his Practice of the Crown Office, is right when he says (p. 62) that it has the effect of putting an end to the prosecution altogether.' It is said that notwithstanding that the attorney general may interfere in any prosecution in any court in England and stop it, the court may afterward award process. Goddard v. Smith, 6 Mod. 261, only decided the entry of a nolle prosequi is not a decision on the merits of the prosecu. tion. The court in the course of the argument said the attorney general might issue new process upon the indictment; but as I have said, I rather think the nolle prosequi puts an end to the prosecution." Blackburn, J., gave no opinion on this point. The remarks of the judges above quoted were made in a case where the attorney general had acted without the leave of the court.

It seems to us very clear that the rule as stated by Mr. Bishop and the judges in the cases above cited must be the true rule, when the nolle prosequi is entered upon an indictment for any cause. If it be entered because the indictment is bad upon its face for want of sufficient allegations, either in form or substance, then there can be no reason for arresting the defendant for trial upon such imperfect indictment. And if the nolle prosqui is entered because there is no proof of the guilt of the defendant, he certainly ought not to be proceeded against further, and the action, though a criminal one, is discontinued for all purposes. Whether in this State, where the information is presented by the attorney for the State after an examination of the defendant before a justice, and a nolle prosequi is entered because of some imperfection in the information which renders it bad in law, a new information may not be presented without a new complaint and examination of the defendant, need not be determined in this case; as we think it must be presumed from the evidence in the case that the nolle prosequi was entered by the district attorney with the leave of the court, because the attorney and the court were satisfied that there was not sufficient proof of the defendant's guilt. And when the prosecution is discontinued for that reason, or for any other reason except for some irregularity or informality in the information itself, such discontinuance puts an end to all further proceedings in that case; and if the defendant can be thereafter further prosecuted for the offense charged in the information, it must be upon a new complaint, arrest, and examination. In this view of the case the entry of the nolle prosequi with the leave and consent of the court was a final determination of that action, within the meaning of the rule laid down for the government of actions for malicious prosecution.

In the case of Moulton v. Beecher, above cited, a complaint for malicious prosecution was sustained