1781.
Joſhua Buffington, the priſoner, pleaded, ore tenus, that he is not the Joſhua Buffington, in the proclamation named, and was not required to ſurrender himſelf, &c.—On which the Attorney General replied, that the priſoner at the bar is the ſame Joſhua Buffington, in the ſaid proclamation named; and thereupon iſſue was joined.
The proclamation being produced on the trial, it appeared, that Joſhua Buffington, now, or late, of the townſhip oƒ Eaſt Bradford, yeoman, was therein required to ſurrender himſelf, &c. according to the terms of the ſuggeſtion.
The evidence was this:—That on the 16th of May 1780, a warrant iſſued to apprehend Joſhua Buffington; that about three or four weeks before the date of the warrant, the priſoner had removed from Cheſter County into the Delaware State; that he was born in Cheſter County, and had reſided there from the year 1776, to the time of his ſaid removal; and that he was the only perſon of that name in the County. On the other hand, however, all the witneſſes agreed, that Joſhua Buffington had never lived in Eaſt Bradford, but always in Weſt Bradford townſhip, which were diſtinct townſhips to every intent and purpoſe.
Lewis and Ingerſol, for the defendant, contended that this variance between the proclamation, and the proof, was fatal to the proceedings; and cited 2 Haw. 186. ſ. 119. 120. 121. id. 189. ſ. 121.
The Attorney General inſiſted, however, that the only queſtions to be determined, were, firſt, whether the priſoner is the Joſhua Buffington whom the Executive Council intended to call upon to ſurrender, &c.; and, ſecondly, whether he is ſo deſcribed, that the deſcription cannot apply to any other perſon; and he cited, Foſt. 79. 87. 3 Bac. 617. 107. 163.
But, by the Court:—Although it may be allowed, that the legiſlature is not bound to the ſame ſtrictneſs, that is required in the deſcriptions of all indictments; yet, we are inclined to think, that the Executive Council is ſo bound. Even in the caſe of a pardon, if the perſon intended to be benefitted were named of a wrong townſhip, the effect of the pardon would be extremely doubtful.
On the preſent occaſion, though Joſhua Buffington of Eaſt Bradford was called upon to ſurrender himſelf; yet, Joſhua Buffington of Weſt Bradford certainly was not; and there is ground for a preſumption, that the priſoner did not think he was the immediate object of the proclamation.
The Court are, therefore, of opinion that the identity is not ſufficiently eſtablished.
The jury found a verdict, upon the iſſue, in favor of the defendant; and he was thereupon diſcharged.
In September, 1782, however, he was tried for the offences alledged againſt him, and acquitted. But the Court ordered him to give ſecurity to be of good behaviour, and keep the peace, during the war with Great-Britain.
