At June term, 1803, an indictment was found against the defendant, Obadiah Hearsey, * which charged that, [ * 138 ] on the-day of-, at Pembroke, in the county of Plymouth, one Nathaniel Cushing made and executed a certain deed of bargain and sale under his hand and seal, whereby, for a valuable consideration therein expressed, he conveyed in fee simple to one Jacob Hardin, sixteen acres of wood-land, situate, &c., and *104that the same deed was, by the said Cushing, and one Obadiah Hearsey, of said Abington, gentleman, who had purchased, a part of the same land of the said Hardin, delivered into the hands of one Jacob Dyer, Jun., the same not being recorded, on the twentieth day of October, now last past, to be by him safely kept, until the first day of June instant, and then, on that day, if the said Hearsey should have paid the said Nathaniel Cushing the sum of five hundred dollars, due to him from the said Hearsey, for anchors and cordage for a schooner, with interest thereon from the end of sixty days next after the delivery of the same anchors and cordage, he, the said Dyer, as was agreed by the said Cushing and Hearsey, should deliver the same deed to the said Hearsey, but if the said sum and interest should not be paid, but remain due on the said first day of June, then the said Dyer, as was agreed by the said Cushing and Hearsey, should deliver the same deed to the said Cushing; and that the said Obadiah Hearsey, at Ahington aforesaid, in the county aforesaid, on the twenty-sixth day of May now last past, meaning and intending him, the said Cushing, to wrong and defraud, as well of the deed aforesaid as of the same sum of money and interest aforesaid, with force and arms, under false pretences and fraudulent management, the same deed, without the knowledge or consent of the said Cushing, the same sum and interest then and as yet being due and unpaid, did take and carry away from the said Dyer, by means whereof the said Cushing was wronged and defrauded of the [ * 139 ] *said sum and interest, and of his said security for the same; against the peace and dignity of the commonwealth.
On the second day of the present term, the said Obadiah Hearsey was arraigned upon this indictment, and pleaded guilty.
On the last day of the term, the Court (Strong, Sedgwick, and Sewall, justices) said there was no crime charged in the indictment, and directed the clerk to make an entry that the judgment was arrested. The defendant had no counsel.
Judgment arrested.
Note.—The Attorney-General (Sullivan) said that at the time he drew the indictment, he was of opinion that the facts charged did not amount to an indictable offence, and that he stated that as his opinion to the grand jury; but that he had drawn the indictment from the importunity of the grand jury, who insisted upon having it done