f4 „_ Cornell University Library KD 7865 1858.B43 Crown cases reserved for consideration. 3 1924 017 828 991 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017828991 CROWN CASES EESEEVED EOE CONSIDEEATION, AND DECIDED BY THE JUDGES OE ENGLAND, A SELECTION OF CASES AND NOTES OF CASES RELATING TO INDICTABLE OFFENCES, ARGUED AND DETBKMINED IN THE COURT OF QUEEN'S BENCH €\t €m\i& of fcor. THOMAS BELL, OF THE INNER TEMPLE, ESQUIRE, B ABEISTER- AT-LATV . Eeom Michaelmas Teem, 1858, to Michaelmas Teem, 1860. LONDON: V. & R. STEVENS & SONS; H. SWEET, AND W. MAXWELL, LAW BOOKSELLERS AND PUBLISHERS. 1861. ^m KAYNEK AND HODGES, PEINTKRS, FETTBll LANE, FLEEt STKEET. PEEFACE. It has been thouglit advisable to cpmprise the Cases reported by the late Mr. Bell in a separate Volume. The whole of the matter herein contained has been revised by Mr. Bell, with the exception of the last two sheets of the Cases, which have been corrected by the undersigned, who have also added an Index to the Principal Matters. E. C. LEIGH. L. W. CAVE. Temple, Ml. 1861. A TABLE OE THE NAMES OE CASES REPORTED IN THIS VOLUME. Regina v. Avery. {Larceny, Adultery. Taking goods of husband with privity of wife.) . .150 Bennett. {Manslaughter. Firework maker. Negligence of servants. 9^10 Wm. 3. c. 7.) . 1 ■ Berry, James. {Perjury. Materiality. Bas- tard child. Affiliating more than twelve months after hirth. Proof, Proof on oath. Jurisdic- tion, Waiver, 7^8 Vict. c. 101. 8 Vict, c. 10.) . . . . . .46 ■ — Berry, William. {Larceny. Adulterer. Di- rection to jury,) , . , .95 Betts. {Larceny. Embezzlement. Appro- priation of money upon an actual sale of goods by servant. Fraudulent neglect to make entries.) Bradford. {Obstructing railway. 3^4 Vict c.21.s.\5.) .... Burnsides. {False pretences. Indictment, Evidence.) Butcher. {False pretences. Innocent Agent. Indictment. Evidence.) Christopher. {Larceny, Finding lost pro- perty. Felonious intent at time of finding Direction to jury,) 90 g68 282 27 VI TABLE OF CASES. PAGE Regina v. Crawshaw. (Lotteries. Public Nuisance. 10^11 Wm. 3. a. 17. ss. 1^2.; 42 Geo. 3. c. 1 19. Betting-Houses, 16 Sf 17 Fict. c. 119. Evidence. Ignorance of Law. ) . . • • 303 Cunningham. (Maritime law. Common law and Admiralty jurisdiction. Inland sea. Venue. County, High seas. Fauces Terrce, Wounding with intent. Unlawful wounding. 14 ^ 15 Vict. c. 19. s.5.) . . , . 72 East Hagbourne. (Highway. Liability to repair. 5^6 Wm, 4. c. 50. s, 23.; 41 Geo. 3. c. 109. ss. 8, 9.) . . . . 135 Evans. (False pretences. Note of an insol- vent bank. Direction to jury.) , , . 187 Fletcher. (Rape. Definition. Girl of weak intellect.) . . . . .63 Goss. (False pretences. Misrepresentation as to substance of article for sale.) , , 208 Guelder. (Embezzlement. Assistant over- seer. Fraudulent accounting.) . . . 284 Halliday. (False pretences. Conspiracy. Evidence. Husband and wife. Verdict,) . 257 Hilton. (Larceny, Receiving. Previous conviction. Principal in second degree. Evi- dence of receiving.) . . . .20 Hind. (Dying declaration. Admissibility in evidence,) ..... 253 Holt. (False pretences. Evidence,) , 280 Hudson. (Conspiracy to cheat. Cheating at play, 8^9 Vict, c, 109. s, 17.) . . 263 Hughes. (Accessory before the fact. Prin- cipal acquitted. General verdict,) . • 242 Huntley. (Receiving stolen goods. Indict- ment. "Stolen as aforesaid,") . . . 238 Ingham. (Bankrupt making false entries in book of account. Intent to defraud. 12 ^ 13 Vict, c, 106. ss. 252, 256.). - - . isi Lesley. (False imprisonment, British vessel. High seas. Transportation by a foreign state to England, Merchant Shipping Act, 17 ^ 18 Vict, c, 104. s, 267.) . . . .220 TABLE OF CASES. VII PAGE Regina v. Loose. (Larceny. Property. Friendly so- cieties. 18 ^ 19 Fict. c. 63. s. 18.) . . 259 ■ Lyons. {Jrson. Setting fire to goods in prisoner's own house with intent to defraud. In- dictment. 14 ^ 15 Vict. c. 19. s. 8. 7 Wm. 4 ^ 1 Vict. c. 89. «. 3.) . . . . 38 M'Evin. {See Regina v. Hilton.) Morrison. {Larceny. Warrant for delivery of goods. Pawnbroker's duplicate. Piece of paper. 39 ^ 40 Geo. 3. c. 99. s. 15. 7^8 Geo. 4. c. 29. s. 5.) . . . .158 Oliver. {Assault occasioning actual Bodily Harm. Indictment. Verdict of common assault.) 287 Pierce. {Property of convicted felon. Power of Judge.) ..... 235 Ragg. {False pretences. Misrepresentation as to quantity.) , . . .214 Rice. {Stealing fixtures. Lead fixed to a wharf. Building. 7^8 Geo. 4. c, 29. *. 44.) 87 Richmond. {.County Court. Acting under pretence of the process of the Court. 9 ^ 10 Vict. c. 95. 5. 57.) . . . .142 Robinson. {False pretences. Obtaining chat- tels not the subject of larceny. Dogs not chattels within s. 53 of 1 %S Geo. A:, c. 29.) . . 34 Rowe. {Larceny. Stealing iron found in a canal. Possession.) . . . .93 Sidebotham. {Manchester Improvement Act. Building houses within prescribed distance. Street.) . . . . .171 Simmons. {Perjury. Summons in bastardy. Proof of payment within twelve months. Juris- diction of petty Sessions. Waiver. 7^8 Vict, c. 101. «. 2.) . . . . . 168 Skeen. {Embezsulement by factors. Disclosure. 5 8(Q Vict. c. 39. s. 6.) . . . . 97 Sparrow. {Infiicting grievous bodily harm. Intent. Verdict.) . . . .298 Sunley. {Naval stores. Broad arrow mark. Evidence of illegal possession. 9 ^ 10 Wm. 3. c. 41. S.2.). . . . . 145 Vni TABLE OF CASES. FAQE Regina v. Timmins. {Abduction of unmarried girl under sixteen. 9 Geo. 4. c. S\. s. 20. Intent.) 276 Tongue. {Embezzlement. Clerk or servant. 7^8 Geo. 4. c. 29. *. 47. Meceipt on account of master.) " . . . . . 289 Wardroper. {Husband and wife. Receiving. Question for jury .) .... 249 Webster. {Perjury. Indictment. Certainty.) 154 ■ Westley. {Perjury. Insolvent Court. Juris- diction. Amendment. Recitals of statutes. Variance.) . . , . .193 IX INDEX TO STATUTES. 13 Ed. 1. c. 34. - - - - - 63 9 & 10 Wm. 3. c. 7. - . . - 1 c. 41. s. 2. - - - 145 10 & 11 Wm. 3. c. 17. ss. 1 & 3 303 39 & 40 Geo. 3. c. 99. s. 15. .... 158 41 Geo. 3. c. 109. ss. 8 & 9. - - 135 43 Geo. 3. c. 119. - - - . . 303 7 & 8 Geo. 4, c. 29. s. 5 158 s. 44. 87 s. 47. - - ... 289 s. 53. ..-..- 34 9 Geo. 4. c. 31. s. 30. - ..... 376 5 & 6 Wm. 4. c. 50. s. 33 135 7 Wm. 4 & 1 Vict. c. 89. s. 3 38 3 &.4 Vict. c. 97. s. 15. 268 5 & 6 Vict. c. 39. s. 6 97 7 & 8 Vict. c. 101. s. 2. - - - - 46, 168 8- Vict. c. 10. 46 8 & 9 Vict. c. 109. s. 17. 263 c. cxli. s. 30. 171 9 & 10 Vict. c. 95. s. 57. 142 11 & 12 Vict. c. 46. s. 1. - . - - - 342 13 & 13 Vict. c. 106. ss. 353, 256 181 14 & 15 Vict. c. 19. s. 5. 72 s. 8. 38 16 & 17 Vict. c. 119. 303 17 & 18 Vict. c. 104. s. 267. 330 18 & 19 Vict. c. 63. s. 18. - .... 359 ERRATA. Page 38, 46, 54, 97, 208, 234, marginal Berry's line 5, dele "you, marginal note, line marginal note, line 3 line 2, after " therefore' 5, after "7 Wm. 4 & 1 Vict." insert ' Seffina v. Simmons, post, p. 168. c. 89.' " they." bottom, for " inferior" •ft " that there is." read "better.' REPORTS OP CROWN CASES RESERVED, ^c. Sfo. S[c. EEGINA V. WILLIAM BENNETT. 1858. The following case was reserved by Willes J. The defend- William Bennett was convicted before me at the Old a?* ^fs con- victedof Bmley on the 18th of August, 1858, of the manslaughter manslaugh- oi Sarah Williams. Appeared The substantial question is whether a person who ^^^l ^^^ ^^' ^ '^ fendant was makes fireworks, contrary to the 9 & 10 TT. 3. c. 7., a person who is indictable for manslaughter if death be caused works con- by a fire breaking out amongst combustibles in his trarytostat. • n Ti 1- T- 1 ^ 9&10TFm. 3. possession, collected by him, and in the course of use, c 7. He for the purpose of his business, but not completely tity*of'iom-' made into fireworks at the time. bustibies at his house for the pur- pose of his business as a maker of fireworks ; and during his absence, through the negligence of his servants, a fire broke out amongst such combustibles, and a rocket becoming thereby ignited flew across the street, and setting fire to a house opposite caused the death of a person therein. Held, that the conviction was wrong, as the death was not occasioned by the unlawful act of the defendant, but by the negligence of his servants. VOL. I. B 2 CROWN CASES RESERVED. 1858. The prisoner had a house and firework shop in the Bennett's Westminster Road, where, for some time before the Case. £pg hereinafter mentioned, he openly carried on the business of selling fireworks. He had also a work- shop at a neighbour's named Sunter, and a factory at Peclham. He had contracts to supply VauxhaU and Cremorne Gardens with fireworks, which he regularly did in considerable quantities. He made and kept his stock of fireworks at the factory at Peckham. From thence he used to take the supply necessary for the Gardens daily to the house in the Westminster Road, where they used to be kept for two or three hours until they were taken away for use at the Gardens. In the room of Sunter the smaller sort of rockets were made excepting the heads for holding stars. These heads were added at the house in the West- minster Road. At the house in the Westminster Road fireworks were oflFered for sale. No fireworks were made there except as follows. First, the finishing the smaller rockets as already mentioned, and making stars for them of combustible matter. Secondly, making fire- works called serpents. Thirdly, making cases and filling them with combustible matter called red, blue and green fires. It is to this last mentioned part of the business that I ought particularly to direct atten- tion. The fire was employed for filling coloured cases used to imitate revolving lights in fireworks called wheels. These cases affixed were not used by them- selves, but in connection with those fireworks to add to their effect. The contents of the cases of fire made at the Westminster Road were combustible, and the red fire would explode if struck hard. Five or six pounds of fire were made every day in the house in the West- CROWN CASES RESERVED. 3 minster Road, and filled there in the back room into 1858. cases, with a rammer and mallett, by persons em- Bennett's ployed for the purpose. ^*^^- At the time of the fire there was a quantity of the red and blue fire in the house, in the room, where it was to be put into the cases, in order to be used as already mentioned in the course of the business ; and a quantity of fireworks for the evening. On Monday, the 12th of July, about six in the evening, the prisoner being out of the house and not personally interfering, a fire broke out in the red and blue fire which communicated to the fireworks, causing a rocket to cross the street and set fire to a house at the opposite side, in which the deceased Sarah Williams was, consequently, burnt to death. The fire was accidental in the sense of not being wilful or designed. It did not happen through any personal interference or negligence of the prisoner ; and he is entitled to the benefit of any distinction between its happening through negligence of his ser- vants or by pure accident without any such negli- gence. It was contended that there was no case against the prisoner, inasmuch as the cases of red &c. fire were only parts of fireworks and not within the statute ; and that it did not appear that it was by reason of making fireworks the mischief happened ; and that, at all events, the death of the deceased was not the direct and immediate result of any wrong or omissien on the prisoner's part : and there was cited a case from the Sessions Reports at the Old Bailey, in which Mr. Baron Alder son is r^orted to have held that an indictment for manslaughter was not main- tainable under such circumstances. I, however, overruled these objections, holding that B 2 Case. CEOWN CASES RESERVED. 1858. the prisoner was guilty of a misdemeanor in doing an Behnett's act with intent to do what was forbidden by the statute, and that, as the fire was occasioned by such misdemeanor, and without it would not have taken place, or could not have been of such a character as to cause the death of the deceased which otherwise would not have taken place, a case was made out. The question of a nuisance, independent of the statute of 9 & lOTFm. 3., and the considerations arising upon it, need not be noticed, as it has been disposed of upon the facts in favour of the prisoner. Entertaining doubts upon the above points, I request the opinion of the Judges. The prisoner is out on bail. This case was considered, on 13th November 1858, by COCKBUEN C. J., WiGHTMAN J., WiLLIAMS J., Channell B. and Willes J. Martin appeared for the Crown, and Hardinge Giffard for the prisoner. CocKBUEN C. J. — It appears that the prisoner kept in his house a quantity of fireworks, but that circum- stance alone did not cause the fire by which the death was occasioned ; but, the fireworks and the combus- tibles kept by the defendant for the purpose of his business being in the house, the fire was caused by the negligence of the defendant's servants. Can it be contended that, under such circumstances, the defend- ant is criminally responsible? Martin^ for the Crown. — The explosive nature of these substances kept by the defendant in such a place is to be considered ; and, if the keeping of the fireworks was unlawful, the prisoner would be re- sponsible for all the consequences of that unlawful act. CROWN CASES RESERVED. 5 CocKBURN C. J. — The keeping of the fireworks in 1858. the house by the defendant caused the death only by Bennett's the superaddition of the negligence of some one else. ^*'^- By the negligence of the defendant's servants the fireworks ignited, and the house in which the deceased was was set on fire and death ensued. The keeping of the fireworks may be a nuisance, and if, from the unlawful act of the defendant, death had ensued as a nd&essary and immediate consequence, the conviction might be upheld. The keeping of the fireworks, however, did not alone cause the death : plus that act of the defendant, there was the negligence of the defendant's servants. WiLLES J The fire which caused the death did not happen through any personal interference or negli- gence of the defendant. The keeping of the fireworks in the house was disconnected with the negligence of the defendant's servants which caused the fire. CocKBUEJN C. J. — The view which we all take of the case is, that the prisoner cannot be convicted upon these facts. Hardinge Giffard, for the prisoner, was not called upon by the Court. Conviction quashed. CROWN CASES RESERVED. ^ i^,^^ f^/CV. 1858. REGINA v. WILLIAM BUTCHER. The defend- ant was con- victed of obtaining money by false pre- tences. The 1st count of the indictment alleged that the defendant pretended to J. H. that he (the defend- ant) was the agent of J. JB., and was sent to the pay-table of a certain Company to receive cer- tain monies The following case was reserved and stated by the Chairman of the Kent Sessions. At the General Quarter Sessions of Peace for the county of Kent, holden at Saint Augustine's near Canterbury, on the 6th day of April 1858, William Butcher was tried upon the following indictment. Kent, to wit. J The jurors for our lady the Queen on their oath present that William Butcher on the twenty-second day of January in the year of our Lord one thousand eight hundred and fifty-eight unlawfully knowingly and designedly did falsely pretend to one James Holden the treasurer and servant of a certain incorporated Company called The Company of Free Fishers and Dredgers of Whitstahle in the said county that he the said William Butcher was the agent of two then payable by the said Company to the said J. B., and that he was authorized to receive such monies for and on behalf of the said J. B., by means of which said false pretences the defendant obtained from J. H. certain monies of the said Company. The 2nd count alleged that the defendant pretended to A. that he (the defendant) was authorized to send him, the said A., to the said pay-table to get the pay-table money of the said J. B., by means of which said false pretence the defendant obtained from the said J. H. and from the said A. certain monies of the monies of the said Company. The 3rd count was not material to the decision of this case. The 4th count alleged that the defendant pretended to the said A. that he (the defendant) was the agent of J. B., and that he (the defendant) was sent by the said J. B. to the said pay-table to receive certain monies then payable by the said Company to the said J. B., and that he (the defendant) was authorized to receive such monies for and on behalf of the said J. B., by means of which said false pretences the defendant obtained from A. certain monies of the monies of A. On the trial it was proved that the defendant promised A. a penny to go to the pay- table and fetch J. B.'s money ; that A. accordingly went to the pay-table where the said J. H. was, and asked for, and received from J. H., J. B.'s pay-table money, which he afterwards gave to the defendant because he had promised him a penny ; and it was also proved that J. H. would not have parted with the money if A. had not said he was sent for it, and if he had not believed that A. was authorized hjJ. B. to receive it. Held: — 1. That A. being the innocent agent of the defendant this amounted to a false pretence, by the defendant himself, that A. was authorized to receive J. B.'s pay- table money ; but 2. That the conviction could not be sustained, because there was no count in the indictment charging that as the false pretence on which the money was obtained. Case. CROWN CASES RESERVED. persons named James Butcher the elder and James 1858. ButcUr the younger of Whitstable aforesaid which butchbe two persons were commonly known by the name of "the Jim Butchers" and that he the said William Butcher was then sent by the said James Butcher the elder and James Butcher the younger otherwise " the two Jim Butchers" to the pay-table of The Company of Free Fishers and Dredgers of Whitstable aforesaid to receive certain monies then payable by the said Com- pany to the said James Butcher the elder and James Butcher the younger otherwise " the two Jim Butchers" and that he was then authorized to receive such monies for and on behalf of the said James Butcher the elder and James Butcher the younger otherwise " the two Jim Butchers" by means of which said false pretence the said William Butcher did then unlawfully obtain from the said James Holden the sum of two pounds and three shillings of the monies of the said Company with intent thereby then to defraud, whereas in truth and in fact the said William Butcher was not then the agent of the said James Butcher the elder and James Butcher the younger or either of them and was not then or at any other time sent by the said James Butcher the elder and James Butcher the younger otherwise " the two Jim Butchers" or by either of them to the pay-table of The Company of Free Fishers and Dredgers of Whitstable aforesaid to receive certain monies or any money payable by the said Company to the said James Butcher the elder and James Butcher the younger otherwise " the two Jim Butchers" or to either of them and the said William Butcher was not then authorized to receive such monies or any money for and on behalf of the said James Butcher the elder and James Butcher the younger otherwise " the two Jim Butchers" or either of them as he the said William Butcher well knew, against the form of the statute in 8 CROWN CASES RESERVED. 1858. such case made and provided. 2nd count. And the Butcher's jurors aforesaid upon their oath aforesaid do further Case. present that William Butcher on the twenty-second day of January in the year of our Lord one thousand eight hundred and fifty-eight unlawfully knowingly and de- signedly did falsely pretend to one William Butler that he the said William Butcher was authorized to send him the said William Butlerto the pay -table of the said Com- pany of Free Fishers and Dredgers of Whitstable to get the pay-table money of the aforesaid Jame^ Butcher the elder and James Butcher the younger otherwise " the two Jim Butchers" by means of which said false pretence the said William Butcher did then unlawfully , obtain from the said James Holden then being the treasurer of The Company of Free Fishers and Dredgers of Whitstable as aforesaid and from the said William Butler the sum of two pounds three shillings of the monies of the said Company with intent thereby then to defraud, whereas in truth and in fact the said William Butcher was not then nor at any other time authorized to send the said William Butler to the said pay-table of the said Company of Free Fishers and Dredgers of Whitstable to get the pay-table money or any other money of the said James Butcher the elder and James Butcher the younger otherwise " the two Jim Butchers" as he the said William Butcher at the time he so falsely pretended well knew, against the form of the statute in such case made and provided. 4th count. And the jurors aforesaid upon their oath aforesaid do further present that on the twenty-second day of January in the year of our Lord one thousand eight hundred and fifty-eight the said William Butcher knowingly did falsely pretend to the said William Butler that he the said William Butcher was the agent of the said James Butcher the elder and the said James Butcher the younger commonly known by the name of CROWN CASES RESERVED. . i "the Jim Butchers'' and that he the said William 1858. Butcher was then sent by the said James Butcher the botchbe's elder and the said James Butcher the younger other- "^^s®- wise " the two Jim Butchers" to the pay-table of the Company aforesaid to receive certain monies then payable by the said Company to the said James Butcher the elder and James Butcher the younger otherwise " the two Jim Butchers" and that he was then authorized to receive such monies for and on behalf of the said James Butcher the elder and James Butcher the younger otherwise " the two Jim Butchers" by means of which said false pretences the said William Butcher did then unlawfully obtain from the said William Butler the sum of two pounds three shillings of the monies of the said William Butler with intent to defraud, whereas in truth and in fact the said William Butcher was not the agent of the said James Butcher the elder and James Butcher the younger otherwise " the two Jim Butchers" or either of them and whereas in truth and in fact the said William Butcher was not then or at any other time sent by the said James Butcher the elder and James Butcher the younger otherwise " the two Jim Butchers" or either of them to the pay-table of the said Company to receive cer- tain monies then payable by the said Company to the said James Butcher the elder and James Butcher the younger otherwise " the two Jim Butchers" or any money -jvhatsoever and whereas in truth and in fact he was not then authorized to receive such monies or any money whatsoever for or on behalf of the said James Butcher the elder and James Butcher the younger otherwise " the two Jim Butchers" as he the said » William Butcher well knew, against the form of the statute in such case made and provided. There was a third count in the indictment, which Case. 10 CROWN CASES RESERVED. 1858. was abandoned at the trial by the counsel for the Butchbb's prosecution. The substance of the evidence for the prosecution was as follows. John Hammond Nicholls stated : that he was fore- man of The Incorporated Company of Free Fishers and Dredgers of Whitstahle ; that the affairs of the Com- pany are managed by the foreman and jury and by a treasurer; that the members of the Company are called freemen and are employed under the supervision of the foreman in working upon the oyster grounds of the Company, and are paid for their work by the treasurer; and that the treasurer of the Company is James Holden ; and that the witness and James Holden met at a public house in Whitstable Street, called The Duke of Cumberland, on Friday the 22nd January 1858, at the pay-table, for the purpose of paying the freemen for their work; that the defendant William Butcher is a freeman of the Company and was then entitled to receive, and came to the pay-table and did receive, his pay of 145. between 5 and 6 o'clock in the evening of the said 22nd January ; that amongst the freemen of the said Company are two persons, father and son, of the name of James Butcher, who go by the name of " the two Jim Butchers," and the money which becomes due to them is commonly called " the two Jim Butchers^ money;" that between 6 and 7 o'clock of the same Friday evening a little boy came to the pay-table, after the defendant William Butcher had received his money, and said, " I want the two Jim Butchers^ money ;" that the sum of 21. 3s. was due to the two James Butchers ; that witness told Holden the treasurer to pay the 21. Ss., and witness saw Holden pay the money to the boy; that the freemen frequently send their boys and girls for their money ; CROWN CASES RESERVED. 11 that afterwards James Butcher the father came, and 1858. then James Butcher the son came, for their money. Butchbk's William Butler, a boy ten years of age, stated : that c^^^- he knew the defendant William Butcher ; that he (the witness) and another boy were playing together in the street of Whiistable, on Friday the 22nd January last, near The Duke of Cumberland public house ; that the defendant came to them and said, " Which of you boys wants to earn a penny?" that witness replied, " I do ;" that the defendant then said to witness " Go to the pay-table and fetch the two Jim Butchers' money;" that witness accordingly went to the pay- table of The Duke of Cumberland public house, where Mr. Nicholh and Mr. Holden were, and asked for the two Jim. Butchers' pay-table money ; that he received 2?. 35., and went back to the street where the defendant was waiting and gave him the money, and received from him a penny. On cross-examination, witness said he went and received the money, and afterwards gave it to the defendant, because he had promised him the penny for doing so. James Holden stated : that he was treasurer of the Company ; that on Friday, the 22nd January, he was at the pay-table with John Hammond Nicholls the foreman of the Company; that a little boy, the wit- ness last examined, came and asked for the two Jim Butchers' pay-table money; that he paid 21. 35. to the boy; that the money so paid to the boy was the money of the Company; that he parted with the money because the boy came and said he wanted the two Jim Butchers' money, and that he should not have parted with it without that; Nicholls the fore- man goes on the oyster grounds, knows what work has been done by the freemen, and what each has earned and is to receive ; that Nicholls specified the amount and told him what he was to pay, and that 12 CROWN CASES RESERVED. 1858. he should not have parted with the money if the little Butcher's boy had not said he was sent for it, and if he had not Case. believed that the boy was authorized by the two Jim Butchers to receive it. The defendant's name was never mentioned in the transaction. James Butcher^ the father, and James Butcher, the son, respectively, proved that they were commonly known as the two Jim Butchers ; that they did not authorize either the defendant William Butcher, or the boy William Butler, to receive their money from the Company, and did not send any one for it on the said Friday evening. It did not appear that either the foreman or the treasurer of the Company knew the name of the little boy, or who he was, at the time the treasurer paid him the money. On the part of the defendant it was contended that the defendant was entitled to be acquitted on the following grounds. First, because the conduct of the defendant did not amount to the making of any false pretence at all to any one. And secondly, as to the false pretence alleged in the first and second counts in the indictment, that they were not substantiated by the evidence, inasmuch as, even if the evidence was to the effect that the defendant pretended to the boy Butler that he, the defendant, was authorized to receive the two Jim Butchers' money, such pretence was not the false pretence communicated to Holden, and by means of which the money was obtained, but that the impression on the mind of Holden made by the application of Butler was, according to Holden's evidence, that Butler had been authorized by the two Jim Butchers to receive their money, being a pretence essentially different from that laid in the first and second counts. With respect to the second count in CROWN CASES RESERVED. 13 the indictment, it was also submitted that the money, 1858. when obtained from Butler, was not in his hands as Butcher's the agent of the Company, the property in it having *^*^^- been parted with by the treasurer when paid to him ; and it could not therefore be held that the money obtained from Butler was the property of the Company as laid in that count, and that therefore it was not proved that the prisoner obtained from James Holden and from William Butler any money the property of the Company. In addition to this, it was contended that the second count charged an obtaining from James Holden and William Butler jointly, and that such obtaining was disproved by the evidence. With respect both to the second and fourth counts, it was urged that the evidence shewed that the money was not obtained from the boy by any false pretence at all, but by the promise of the penny. And with respect to the fourth count, it was urged, in addition, that the monies there mentioned to have been obtained were not, as against the prisoner, the property of William Butler. On the part of the prosecution, it was contended that the boy Butler was the innocent agent of the defendant ; that the false pretence made through the medium of the boy was the act of the defendant ; that the boy was the mere mouthpiece of the defendant; that what the boy said was in point of law said by the defendant himself, just the same as if he had been personally present in the room saying what the boy said; and that the evidence supported the first and also the second and fourth counts of the indictment. I stated to the jury that, if they were of opinion that the defendant was guilty of obtaining money by false pretences upon the facts proved, the question of law would be reserved for the decision of the Court of Criminal Appeal. 14 CROWN CASES RESERVED. 1858. The jury found the defendant guilty. The judg- Butcheb's naent was respited, and the defendant was admitted to Case. ijail to appear and receive sentence at the next Court of Quarter Sessions. The question for the opinion of the Court of Criminal Appeal is, Whether the facts proved are sufficient to support either the fif-st, second or fourth count of the indictment. This case was argued, on the 13th November 1858, before Cockburn C. J., Wightman J., Williams J., Channell B. and Willes J. C. G. Addison {G. Francis with him) appeared for the Crown ; no counsel appeared for the defendant. C. G. Addison for the Crown. — When the defendant took it upon himself to send the boy for the money, he, by his conduct, represented that he, the defendant, was authorized by the two Butchers to receive their money. A representation or pretence may be made by the conduct and acts of a party as well as by express words. Where a person at Oxford, not being a member of the University, went to a shop for the purposes of fraud, wearing a commoner's cap and gown, and obtained goods, this was held a sufficient false pretence to satisfy the statute, though nothing passed in words; Bex v. Barnard (a). The pretence made by the boy, the innocent agent of the defendant, was, in truth, the pretence of the defendant himself, and it is submitted that in criminal as well as in civil pleading the transaction may be described either as it appeared at the time, or as, in truth, it really was. Where a female of the name of Davis assumed the name of Johnson for a fraudulent purpose, it was held that she might be indicted according to the apparent state of facts in her assumed name of Johnson or in (o) r C. & P. 784. CROWN CASES RESERVED. 15 her real name of Davis ; JSForton's Case (a). Tn civil 1858. cases, if an undisclosed principal obtains property botchebs through the medium of an agent as the apparent Case. purchaser, you may proceed either according to the actual or the apparent state of facts. You may charge the principal, though you knew him not, and dealt with his agent believing him to be a principal, and you may describe the prmcipal in pleading as doing and saying exactly what his agent did and said. There is no variance if the description accords with the real truth of the matter. A party not present at the time of the making a false pretence may be con- victed as a principal if he assisted in the fraud ; Moland's Case (b). In the American cases on false pretences it is laid down that HA. procures B. to go to C. with a false pretence to obtain the goods of C, A. is guilty in the matter of obtaining these goods by false pretences, and whether A. be outside or within the door of the shop is immaterial. All that is neces- sary to be proved is that he is, at the time, aiding in putting forth the false pretences; The Commonwealth V. Harley (c), The Commonwealth v. Call (d). CocKBUKN C. J. — I am inclined to agree with you in thinking that the conduct of the defendant amounted to a false representation ; but it was a false representa- tion to this effect, it was as if he had gone to the pay- table himself, taking the boy with him, and said, " this boy is authorized to receive the Jim Butchers' money." Williams J — Is there not a count alleging a false pretence to the boy, and an obtaining of the money by the defendant from the treasurer by means of that false pretence? Addison. — The second count alleges that the defend- ant pretended to the boy that he was authorized to (a) Kuss. & Ky. 510. (c) 7 Metcalf, 462. (6) 2 Mood, C. C. 276. (d) 21 Pickering, 515. 16 CROWN CASES RESERVED. 1858. send the boy to the pay-table for the Jim Butchers' Butcher's money, and that, by means of that false pretence, he ^^^^- obtained the money from the treasurer ; and it is sub. mitted that this count is supported by the evidence. By the very act of sending the boy for the money, the defendant represented to the boy that he had authority from the Butchers to send him. CocKBURN C. J. — There Is no pretence to the boy. The boy went because he was promised a penny. Nothing operated upon the mind of the boy but the expectation of the penny. Addison That was not the sole inducement to the boy. The boy went and got the money and gave it to the defendant both because he was promised the penny and because he was induced to think that the defendant had a right to send him for the money. The boy would not have gone if he had known the real truth of the matter, and that he was doing a wrong thing, and helping the defendant wrongfully to obtain another person's money. There is then the fourth count which alleges that the defendant falsely pretended to the boy that he was authorized to receive the Butchers' money, and that by means of that false pretence he obtained the money from the boy. WiLLES J. — There was no obtaining of the money from the boy by any false pretence. The boy was the mere agent of the defendant, and received the money as the defendant's agent. Addison. — I venture "to submit that he could not lawfully be his agent for any such purpose. He had no power to make him his agent for the receipt of this money. The money was not the defendant's money when it reached the hands of the boy, but it continued the property of the Company. There was in truth a larceny of the money by the defendant, the treasurer having no authority from the Company to CROWN CASES RESERVED. 17 part with the property in the money to any other 185S. parties than those to whom he was authorized to pay butchee's it, and who were entitled to receive it. In this respect ^''^^• the case is like Wilkin's Case (a), where a hosier en- trusted property to his servant to be given to H., and the prisoner went to the servant and pretended to be H. and got the goods ; and, like Robin's Case (6), where a bailee of wheat deposited it in a warehouse under the care of his servant with authority to deliver it only to the owner or his managing clerk, and the prisoner obtained it from the servant by means of false representations. Wherever a servant has autho- rity only to deliver property to a particular individual, and another person obtains it from such servant by falsely representing himself to be authorized to receive it, this is larceny, for the servant has no authority to part with it but to the right person ; Rex v. Long- streath (c). And by 7 & 8 Geo. 4. c. 29. s. 53. if, upon the trial of any person for obtaining money by false pretences, it be proved that he obtained the property in such manner as to amount to larceny, he is not by reason thereof entitled to be acquitted. WiGHTMAN J. — You need not trouble yourself upon that point. Addison. — The simple question is, was there not a fraud practised on the boy throughout in making him believe he was doing a right and lawful thing at the bidding of the defendant, when it was in truth wrong and unlawful ? And did not some one or other of the false pretences charged in the indictment operate upon the mind of the boy as well as the promise of the penny? CocKBURN C. J. — The false pretence here is a pre- tence that the boy was sent by the Butchers for their (a) 1 Leach. C. C, 4th ed., 520, (6) 1 Dears. C. C. 418. case 236 ; 2 East, P. C. 673. (c) 1 Mood. C. C. 137. VOL. I, C Case. 18 CROWN CASES RESERVED. 1858. money, and was authorized to receive it; and yoii Butchee's must lay the real false pretence — that by which the money was obtained. No doubt the prisoner is re- sponsible for an act done by the instrumentality of his innocent agent; but there is no count to meet the pretence. Addison The money was in truth obtained by means of the false pretence charged in the first count, although the treasurer did not know it at the time. The defendant was all the while standing outside the door of the house playing oflF the false pretence through the medium of the boy. The treasurer thought it was the boy who was seeking to get the money for the Butchers^ when in truth it was the defendant himself behind the scene. CocKBURN C. J. — This case, when it comes to be considered, does not appear to me to present any real difficulty. The prisoner was, no doubt, guilty of obtaining the money by false pretences; 'but it is also clear to me that the pretence by which the money was in fact obtained was that the boy had authority to receive it, and that is not one of the pretences laid in the indictment. The prisoner is responsible for the representation made by the boy as his innocent agent; but that does not meet the difficulty I feel on the ground that the pretence is not correctly stated. You must in the indictment truly allege the false pretence by which the money was obtained. The prisoner told the boy to go to the pay-table and fetch the two Jim Butchers'' money ; and the boy went to the pay-table and said, " I am come for the two Jim Butchers' money." The prisoner, no doubt, is as much responsible for what the boy said as if he, the prisoner, had gone to the pay-table and made the false representation himself; but the representation of the boy was that he, the boy, had authority to receive the CROWN CASES RESERVED. 19 money. There is no such representation alleged in 1858. the indictment, and that was the representation on bdtcbbe's which the treasurer parted with the money. There is ^^^®' no count to fit the facts, and the conviction must be quashed. I may mention that my brother Willes is of the same opinion (a). WiGHTMAN J I am clearly of the same opinion. The law has been correctly stated by Mr. Addison ; but, on the ground pointed out by the Lord Chief Justice, I think the conviction cannot be sustained. Williams J I am of the same opinion. There was sufficient evidence to go to the jury to support a conviction on the ground that the prisoner was guilty of making the false pretence by which the money was obtained, namely that the boy Butler was sent for the Jim Butchers' money ; but there was no count in the indictment laying that as the false pretence. One of the counts charges that the money was obtained from the boy Butler by a false pretence ; but, in fact, what induced him to go and get the money, and afterwards to hand it to the defendant, was the promise of the defendant to give him a penny. At one time I thought that Regina v. Brown (6), where it was said by Patteson J. that there was nothing in the Act of Parliament which made it necessary that the pretence should be made to the person from whom the money was obtained, if it was made to operate on his mind, might have supported the second count, which avers that the defendant made the pretence to the boy, and thereby obtained the money from the treasurer; but the pretence which the prisoner made to the boy did not operate on the mind of the treasurer; the pretence that operated on his mind was that he, the boy, was authorized to receive the (a) Wittes J. had left the Court. (*) 2 Cox C. C. 348. C 2 20 CROWN CASES RESERVED. 1858. Butcher's Case. money, and not the pretence of the defendant that he was sent for it or was authorized to receive it. Channell B. — I also think this conviction cannot be sustained. There is no count in the indictment to fit the case. Conviction quashed. 1858. REGINA V. ELIZABETH HILTON AND JOSEPH M'EVIN. It IS no The following case was reserved by the Recorder of objection to , -p, i rr • an indict- the Borough of Hastings. ftbny that -^* ^^^ Quarter Sessions of the Peace, holden for a previous the Borouffh oiHastinqs on the 29th of October 1858, conviction IS rL J^ r i^ t-i • • -i / • ^ stated at the Elizabeth Hilton and Joseph M^Emn were tried (with and'noiTas William Robert Hilton, who was acquitted,) on an is more usual, indictment in the foUowina; words: — at the end of-_ t r tt • ^ r^ • n iti Borongh oi Hastings I ihe jurors for our lady the to wit. J Queen upon their oaths pre- sent that heretofore to wit at the General Sessions of the delivery of the Queen's gaol at Newgate holden for the jurisdiction of the Central Criminal Court at Justice Hall in the Old Bailey in the suburbs of the the indict ment ; and the proper course when an indictment is so framed is to state the new charge to the jury instance, and city of London on the 6th day of July in the year of then, if they q^j. Lord 1857 before certain Justices of our said lady return a ... verdict of the Queen assigned to deliver the said gaol at Newgate charge them of the prisoners therein being William, Robert Hilton to inquire as to the fact of the previous conviction. Where a prisoner is charged in two counts with stealing and receiving, the jury may return a verdict of guilty on the latter count, if warranted by the evidence, although the evidence is also consistent with the prisoner having been a principal in the second degree in the stealing. The Court will not send a case back for amendment on the mere application of counsel ; but will do so if on the argument it appears that it is imperfectly stated. CROWN CASES RESERVED. 21 by the name of William Henrick was then and there 1858. convicted of felony and which said conviction is still M'Eviji's in full force strength and effect and not in the least ^^^^' reversed annulled or made void. And the jurors aforesaid upon their oaths aforesaid do further present that heretofore to wit at the General Sessions of the delivery of the Queen's gaol at Newgate holden for the jurisdiction of the Central Criminal Court at Justice Hall in the Old Bailey in the suburbs of the city of London on Monday the 27th day of October in the year of our Lord 1856 before certain Justices of our said lady the Queen assigned to deliver the said gaol of Newgate of the prisoners therein being Elizabeth Hilton by the name of Elizabeth Mantrick was then and there convicted of felony and which said conviction is still in full force strength and effect and not in the least reversed annulled or made void. And the jurors aforesaid on their oaths aforesaid do further present that the said William Robert Hilton late of the parish of the Holy Trinity in the borough of Hastings labourer being so convicted of felony as aforesaid the said Elizabeth Hilton late of the parish of the Holy Trinity in the said borough of Hastings single woman being so convicted of felony as aforesaid and Joseph M'-Ewin late of the said parish of the Holy Trinity in the borough of Hastings aforesaid on the 23rd day of August in the year of our Lord 1858 with force and arms at the parish aforesaid in the borough aforesaid and within the jurisdiction of the Court of General Quarter Sessions of the Peace of our said lady the Queen within the said. borough one purse containing several pieces of the Queen's current silver coin of the realm together of the value of twelve shillings of the moneys goods and chattels of one John Goddard from the person of Sarah Goddard his wife then and there feloniously did steal take and carry away, against the 22 CROWN CASES RESERVED. 1858. form of the statute in that case made and provided M'Eviij'g and against the peace of our lady the Queen her Case, Crown and dignity. 2nd count. And the jurors aforesaid upon their oaths aforesaid do further present that the said William Robert Hilton so being convicted of felony as aforesaid the said Elizabeth Hilton so being convicted of felony as aforesaid and the said Joseph M^Evin on the said 23rd day of August in the year of our Lord 1858 wSh force and arms at the parish last aforesaid in the borough aforesaid and within the jurisdiction last aforesaid one purse containing several pieces of the Queen's current silver coin of the realm together of the value of twelve shillings of the moneys goods and chattels of one John Goddard then lately before felo- niously stolen taken and carried away feloniously did receive and have they the said William Robert Hilton, Elizabeth Hilton and Joseph M'-Evin respectively then and there well knowing the said moneys goods and chattels to have been feloniously stolen taken and carried away, against the form of the statute in such case made and provided and against the peace of our lady the Queen her Crown and dignity. At the request of the counsel for the prisoners, and to prevent the prejudice against them likely to arise from the part of the indictment charging the former convictions being read in the hearing of the jury in the first instance, the prisoners were arraigned on those parts of the indictment only which charged subsequent offences, it being intended to postpone their arraignment on their former convictions until the jury should have delivered their verdict on the subsequent offences. The jury found Elizabeth Hilton guilty of stealing, and Joseph M'-Evin guilty of receiving, the goods and moneys mentioned in the indictment. Upon this the CROWN CASES RESERVED. 23 prisoner Elizabeth Hilton was about to be arraigned 1858. on that part of the indictment charging a former m'Evin's conviction, when Mr. Rihton, counsel for the prisoners, ^*'^- objected, contending that this was an irregular course and could not be pursued. But the gentleman who appeared for the prosecution desiring, together with Mr. Rihton, that the matter should be reserved for the opinion of the Court for Consideration of Crown Cases Reserved, I overruled the objection. The prisoner Elizabeth Hilton having been arraigned on the former conviction, to which she pleaded not guilty, the jury were then duly charged to inquire into the former conviction, and found that the said Elizabeth Hilton had been before convicted as alleged in the indictment. Mr. Ribton then moved in arrest of judgment, on the ground of the foregoing alleged irregularity, and also by reason of the indictment alleging that the former conviction " is still in full force, strength and eflFect, and not in the least reversed, annulled or made void," whereas by the expiry of the sentence such conviction had become vacated. As to Joseph M^Evin, Mr. Ribton requested me to direct the jury that Joseph M^Evin could not be con- victed of receiving on the facts hereinafter stated. On the occasion in question Elizabeth Hilton was walking by the side of the prosecutrix, and Joseph M^Evin was seen just previously following behind her. The prose- cutrix felt a tug at her pocket, found her purse was gone, and on looking round saw Elizabeth Hilton behind her walking \fith Joseph M^Evin in the opposite direc- tion, and saw her hand something to Joseph M^Evin. I directed the jury that, if they did not think from the evidence that Joseph M^Evin was participating in the actual theft, it was open to them on these facts to find a verdict of receiving. I respited judgment on the prisoners in order that 24 CROWN CASES RESERVED. 1858. the judgment of the Court for Consideration of Crown M'Evin's Cases Eeserved might be ascertained on a case to be stated, and the foregoing is the statement of facts on which the judgment of the Court is requested. The prisoners were committed to gaol to abide the said judgment. William Wakeford Attree, Kecorder of Eastings. This case was set down for argument on the 13th November 1858, before Cockbuen C. J., Wightman J., Williams J., Channell B. and Hill J. Rihton appeared for the prisoners, and applied that the case might be sent back to the learned Recorder, in order that the evidence given on the trial might be more fully set out. Cockbuen C. J The Court will not send a case back on such an application ; but will do so when it appears to the Court on the argument that it is imperfectly stated. The case was argued, on 22nd November 1858, before Pollock C. B., Wightman J., Williams J., Channell B. and Hill J. Hurst appeared for the Crown, and Ribton for the prisoners. Ribton, for the prisoners. — The indictment is bad and the judgment ought to be arrested. The count contains an introductory allegation that the prisoners have been previously convicted of felony. The object of the Legislature in the recent statutes has been to prevent the jury from being prejudiced by the former conviction being stated to them ; Regina v. Key (a), Regina v. Shuttleworth (6). Wightman J. — Is your objection that the allegation (a) 2 Den. C. C' 347. (b) Ibid. 351. CROWN CASES RESERVED. 25 of the previous conviction ought not to be at the 1858. beginning, of the indictment but at the end ? M'Evin's Bibton. — Yes. I say it ought to be in a separate ^^^' count. If it is, as here, made part of the charge, it must be put to the jury in the first instance, and thus the prejudice will be created which it has been the object of the Legislature to avoid. It is impossible to give the prisoner in charge to the jury without reading the previous conviction. Hill J. — No. It is not impossible, and in this case it was not done. Ribton. — After the prisoner was convicted of the principal charge the first count was exhausted, and there could not be a further inquiry respecting the previous conviction. The averment of the previous conviction is part of the count, and does not, as is usual, follow it in the indictment. Pollock C. B. — There is nothing in this objection. Ribton. — The second objection is, that the prisoner M^Evin ought not on the evidence to have been con- victed of receiving. The evidence shewed that if he was guilty at all it was of stealing, And so the Re- corder ought to have directed the jury. The prisoner was aiding and abetting: he was present and near enough to afford assistance. WiLLLAJtfS J. — To constitute a principal in the second degree there must be a common purpose. Pollock C. B. — If the Recorder had taken a dif- ferent course you would have had a better objection. Ribton.- — In Regina v. Perkins {a) it was held that a principal in the second degree particeps criminis cannot be treated as a receiver. Pollock C. B. — It was there stated as a fact that the prisoner was a principal. The jury have nega- tived that in this case. (a) 2 Den. C. C. 459. 26 CROWN CASES RESERVED. 1858. Hurst, for the Crown, was not called upon. M'Etin's Pollock C. B. — There is no ground for either of Case. these objections. As to the objection to the indict- ment, it is a matter of perfect indiflference whether the previous conviction is stated at the beginning or at the end of the indictment. As to the second objec- tion, the learned Kecorder told the jury that if they did not think from the evidence that M^Evin was ■ participating in the actual theft, it was open to them on the facts to find a verdict of guilty on the count for receiving. That direction substantially is that, if the jury should think the taking the purse was the common act of the two prisoners, they might convict M'-Evin of stealing ; but if they did not think that he was participating in the actual theft they might find him guilty of receiving. If the jury had found a common purpose, no doubt the stealing would have been the act of both ; but they did not so find ; and I think the direction of the learned Recorder was quite right. WiGHTMAN J — I am entirely of the same opinion. It can make no diflference whether the statement of a former conviction is at the commencement of an indictment or at the end. As to the other objection, the question was expressly and properly left to the jury. The other learned Judges concurred. Conviction affirmed. CKOWN CASES RESERVED. 27 EEGINA V. DAEIUS CHEISTOPHER. 1858, The following case was reserved by the Deputy Where a Chairman of the Dorset Quarter Sessions. Efs^property At the General Quarter Sessions of the Peace for and appro- priates it to the county oi Dorset, holden at Dorchester on the 19th his own use, of October 1858, Darius Christopher was tried before garyj'irorder me and other justices of the peace on the following ^9 convict indictment. ceny, that the Dorsetshire ") The jurors for our Sovereign lady the ^qY that"at to wit. j Queen upon their oath present that the time he . it^ in- ni-n ^°'^ posses- heretofore to wit at the General Sessions of the reace sion of the of our lady the Queen held at Dorchester in and for g^oThad the county of Dorset on Tuesday the twenty-ninth day ti^e means of 7 • 1 tnr I T\ • r^i • 7 knowing who of jNovember m the year 1854 one Darius Christopher the owner was then and there convicted of felony. pssessbS 2nd count. And the jurors aforesaid upon their it with the oath aforesaid do further present that the said Darius intent to Christopher being so convicted of felony as aforesaid i?^y"**\ afterwards to wit on the thirteenth day of October in use. There- the year 1858 at the parish of Stinsford in the county on^ a Trial for of Dorset four pounds in money and two purses of the larceny, ■*■ ■' 77 • . nnder such goods and chattels of one Jane Lovell feloniously did circum- steal and carry away, against the form of the statute chairman * in such case made and provided and against the peace ^^^ *? \^^y of our lady the Queen her Crown and dignity. ous intent was a neces- sary ingre- dient in every larceny, but that such intention was to be judged of by acts subsequent as well as immediate, and that if they thought the conversion of the property by the prisoner to his own use without inquiry was proved, and that though there was no name or mark upon it, there was such peculiarity about it as to warrant inquiry, and above all if they were satisfied that the prisoner subsequently heard that the property was lost and cried by the public crier, and then did not take measures to make restitution, they might infer felonious intention ; it was held that such direction was defective, inasmuch as it was consistent therewith that the jury should find the prisoner guilty, although they were of opinion that the felonious intent did not exist at the time of finding. 28 CROWN CASES RESERVED. 1858. 3rd count. And the jurors aforesaid upon their Christo- oath aforesaid do further present that the said Darius ^^se.* Christopher being so convicted of felony as in the first count of this indictment mentioned afterwards to wit on the said thirteenth day of October in the year 1858 at the parish of Stinsford aforesaid in the county of Dorset aforesaid four pounds in money and two purses of the goods and chattels of the said Jane Lovell before then feloniously stolen and carried away feloniously did receive he the said Darius Christopher then well knowing the said goods and chattels last aforesaid to have been feloniously stolen and carried away, against the form of the statutes in such case made and pro- vided and against the peace of our lady the Queen her Crown and dignity. It appeared from the evidence that the prosecutrix left her master's house between 11 and 12 o'clock in the morning of the 13th October to go to Dorchester (a distance of about a mile), having in her possession a purse of green leather (commonly called a porte- monnaie) containing within it another smaller purse, about the size of a half crown, in which there were three sovereigns and two half sovereigns. In the public path between Stinsford House and the first meadow, as she supposes, she dropped the purse; but thinking she might have left it on her table, she went on and returned home about 1. Finding out her loss she went in the afternoon to Dorchester and had the property cried by the public crier, — describing it as a green leather purse and a smaller one inside, and that they contained three sovereigns and one half sovereign and a half crown, or Bl. 12s. Qd. (This was an error, as it really contained, as she found afterwards, two half sovereigns instead of only one, il 2s. 6d.). About 4 o'clock the prisoner is at the Bull's Read PHER S Case. CROWN CASES RESERVED. 29 public house with a man named Upshall whom he 1858. treats to beer, and paid for it with a sovereign which Cheisto- he took out of a purse. Whilst they were sitting at the table together in the tap, the crier came by and cried something. The landlady, Mary Jane Russell, went to the door to hear; Upshall asked her what it was cried. Landlady, from the passage, said, " Some money lost, 3?. 12s. Qd." Prisoner was taken up even- tually at 12 o'clock at night at another public house, and the two purses with six half sovereigns, two shil- lings and sixpence in silver and some pence found on him. The constable said : " These things were lost." Prisoner said : " Well, I know I did pick them up." Constable said: "There was more money than this." Prisoner said: "I know Pve done wrong." On the part of the prisoner, it was contended that at the time he took the purse (which was admitted) he had no felonious intent; that there was no name or special mark on the purse or the money, and that the subsequent appropriation did not amount to larceny; that, though civilly, he was not criminally liable; and the cases oi Begina v. Mole (a), Thurborn's Case (6) and Eegina v. Lathin (c) were cited. In summing up, I told the jury that a felonious intent was held to be a necessary ingredient in every larceny, but that intention was to be judged of by acts subsequent as well as immediate; that if they thought the conversion of the money to his own use without inquiry was proved, and that there was, though no name or mark on the purse yet such pecu- liarity in it, as containing a second smaller one, as to warrant some inquiry, and, above all, if they were satisfied that the prisoner, when sitting in the public (a) 1 Car. & K. 417. and probably the case referred to (J) 1 Den. C. C. 392. was Regim v. Preston, 1 Den. C. C. (c) This appears to be an error, 353. 30 CROWN CASES RESERVED. 1858. house, heard the words of the landlady, which Upshall Christo- said he heard, and then did not take measures to make ^c^e* restitution, that I thought they might infer felonious intention and find him guilty. The jury returned a verdict of guilty on the count for stealing. A previous conviction was then proved and the prisoner was sentenced to six calendar months hard labour. On application of counsel for the prisoner, a case was granted and execution of the judgment respited till the decision of the Court above was known. I respectfully submit the question, whether the above facts warranted in point of law the fiflding of the jury in this case. Charles Porcher, Deputy Chairman of the Quarter Sessions. This case was argued, on the 22nd November 1858, before Pollock C. B., Wightman J., Williams J., Channell B. and Hill J. Stock appeared for the Crown, and Ffooks for the prisoner. Ffooks, for the prisoner The facts in this case are identical with those in Regina v. Thurhorn (a) ; and the object of the Court below, in reserving it, seems to have been to procure a review of that decision. Pollock C. B. — The question for us is, whether there was any evidence to go to the jury that, at the moment when the prisoner took up the purse, he intended feloniously to appropriate it. Ffooks. — There was not any whatever. The purse was lying on a public footpath, and had evidently been lost. There was no name on it, and nothing about it or its contents to indicate the ownership. The cir- (a) 1 Den. C. C. 387. PHEB 8 Case. CROWN CASES RESERVED. 31 curastance that the purse contained a smaller one 1858. cannot, of course, alter the character of the first chbisto- taking, although, certainly, it might have facilitated the discovery of the person who had lost it. This very case is put by Lord Hale (a), and mentioned in Regiha v. Thurhorn (6) : "If J., find the purse of B. in the highway and take and carry it away, and hath all the circumstances that may prove it to be done ammo furandi, as denying or secreting it, yet it is not felony." But Regina v. Thurhorn does not stand alone; it has been frequently recognised and acted upon. In Regina v. Preston (c) Lord Campbell strongly expresses his approval of it. Channell B. — And in Regina v. Dixon (d) also it is acted upon. The observations of Lord Campbell in Regina v. Preston are very important as they shew what the direction to the jury ought to be. Ffooks. — The direction of the Chairman here was to the effect that subsequent conduct might convert an innocent taking into a felonious appropriation. That was clearly wrong. The learned counsel was stopped by the Court. Stock, for the Crown The present case is dis- tinguishable from the cases cited. In Regina v. Preston the jury did not say that there was a felonious intention at the time of finding, and in that case the Recorder had misdirected the jury in telling them to consider at what time the prisoner first resolved to appropriate the note to his own use ; and that if they arrived at the conclusion that the prisoner either knew the owner, or reasonably believed that the owner could be found when he first resolved to appropriate the note, then he was guilty of larceny; and the Court held that direction was wrong, because it was (a) 1 Hale P. C. 506. (c) 2 Den. C. C. 353. (6) 1 Den. C. C. 392. (d) Dears. C. C. 580. 32 CROWN CASES RESERVED. 1858. consistent with an honest possession on the part of Cheisto- the prisoner. ^Cale^ The facts in this case differ from those in Begina v. Thurborn, and the jury here substantially find that the prisoner, though believing at the time of finding that the owner could be found, did intend feloniously to appropriate the purse and its contents to his own use. Williams J You have this difficulty to grapple, that there is no evidence of that except the subsequent conduct of the prisoner. Stock I submit that the nature of the property found, one purse within another, and the place where it was found, on a footpath near a market town, afford reason for believing that the owner could be found. Pollock C. B. — If you examine all and each of the facts, they are consistent with the innocence of the prisoner. Is there any evidence from which the jury ought reasonably to have found a verdict of guilty ? Chaitoell B In Regina v. Dixon (a), in which Begina v. Thurborn was referred to, it was held that, if a man find lost property and keep it, and at the time of finding it have no means^no immediate means, of discovering the owner, he is not guilty of larceny because he afterwards has means of finding him, and nevertheless retains the property to his own use. Pollock C. B. — I am of opinion that this conviction cannot be sustained. "We are bound by the authority of Begina v. Thurborn. It is necessary to bring home to the prisoner a felonious intention at the time of finding. WiGHTMAN J. — The decision in Begina v. Thurborn has been recognised in several subsequent decisions. We cannot overrule that case and are bound by it. Williams J. — Though considering myself bound by (a) Dears. C. C. 580. CROWN CASES RESERVED. 33 the authority of Regina v. Thurhorn^ and agreeing as 1858, I do with the decision in that case, I must confess christo- I have never been able to agree with some of the Cher's principles there laid down. Here the direction to the jury was, 1 think, calculated to mislead them and to induce them to suppose that, although the pri- soner had no felonious intent at the time of finding, yet if he subsequently had such intent he was guilty of larceny; but that is not the law. The evidence here shews, according to my view of it, that the pri- soner found the purse and took possession of it as a finder, and that the wicked intention of appropriating it came upon him afterwards. I therefore think this conviction cannot be sustained. Channell B. — I think that the case of Regina v. Thurbom was rightly decided; and I think that the cases of Regina v. Preston and Regina v. Dixon, which followed, laid down a reasonable rule and one con- sistent with the decision in Regina v. Thurbom. The question is, was there a felonious intent at the time when the prisoner first took possession of the purse? I am by no means prepared to say that evi- dence of what subsequently occurred was not admissible to prove a felonious intention at the time of finding, but the question of intent at that time was not put to the jury. The Chairman told the jury that a felonious intent was held to be a necessary ingredient in every larceny, but that intention was to be judged of by acts subsequent as well as immediate ; and that, if they were satisfied that the prisoner when sitting in the public-house heard the words of the landlady, and then did not take measures to make restitution, they might infer a felonious intention. Now it is quite consistent with that direction that the jury should find the prisoner guilty, although they were of opinion that the felonious intent did not arise until subsequently VOL. I. D u CROWN CASES RESERVED. 1858. Cheisto- PHEr'8 Case. to the finding. I therefore think that the conviction cannot be sustained. Hill J. — Two things must be made out in order to establish a charge of larceny against the finder of a lost article. First, it must be shewn that, at the time of finding, he had the felonious intent to appropriate the thing to his own use ; and this is founded on the rule laid down by Lord Coke, and referred to and acted upon in Regina v. Thurhorn. The other ingre- dient necessary is that, at the time of finding, he had reasonable ground for believing that the owner might be discovered, and that reasonable belief may be the result of a previous knowledge or may arise from the nature of the chattel found, or from there being some name or mark upon it ; but it is not sufli- cient that the finder may think that by taking pains the owner may be found, — there must be the immediate means of finding him. In this case the evidence fails in both these particulars, and therefore the conviction cannot be sustained. Conviction quashed. 1859. Dogs, not being the subject of larceny, are not " chat- tels" within the meaning of section 53 of 7& 8 Geo. A. c. 29, KEGINA V. SAMUEL ROBINSON. The following case was reserved by the Eecorder of Liverpool. The prosecutor, who resided at Hartlepool, was the owner of two dogs, which he advertised for sale. The prisoner, Samuel Robinson, having seen the advertise- ment, made application to the prosecutor to have the dogs sent to him at Liverpool on trial, falsely pretend- ing that he was a person who kept a man-servant. By this pretence the prosecutor was induced to send CROWN CASES RESERVED. 35 the dogs to Liverpool, and the prisoner there obtained 1859. possession of them with intent to defraud, and sold Kobinsok's them for his own benefit. The dogs were Pointers, ^*^^- useful for the pursuit of game, and of the value of hi. each. At the Liverpool Borough Sessions, holden in De- cember 1858, the prisoner was indicted, convicted and sentenced to seven years penal servitude, under the statute 7 & 8 Geo. 4. c. 29. s. 53. On behalf of the prisoner a question was reserved and is now submitted for the consideration of the Justices of either bench and Barons of the Exchequer, viz., whether the said dogs were chattels within the meaning of the said section of the statute, and whether the prisoner was rightly convicted. The prisoner remains in Liverpool Borough Gaol under the sentence passed at Sessions. Gilbert Henderson, Recorder of Liverpool. This case was argued, on 29th January 1859, be- fore Lord Campbell C. J., Martin B., Crowdeb J., WiLLES J. and Watson B. Brett appeared for the Crown, and Littler for the prisoner. Littler, for the prisoner. — A dog is not " a chattel" within the meaning of the statute. At common law no larceny could be committed of a dog. It is laid down {Lambard's Eirenarcha, 267) that " it is felonie to steale any the moveable goods of any person ; but because it may in some cases bee doubted whether the things so taken are to be numbered amongst move- able goods or no I will proceed in particularitie" — then he says, " to take dogges of any kind, apes, parats, singing birds or such like, though they be in the house, is no felonie;" and Dalton adds {Country D 2 36 CROWN CASES RESERVED. JS59. Justice, 372) : " No, not by taking a blood-hound or Robinson's mastiff, although there is good use of them, and that a man may be said to have a property in them so as an action of trespass lieth for taking them." And by statute it is not to this day made larceny to steal a dog, but is a misdemeanor only (10 Geo. 3. c. 18., 7 & 8 Geo. 4. c. 29. s. 31., 8 & 9 Vict. c. 47.). And, by section 31 of the very same statute under which the prisoner has been convicted, the stealing of a dog is made punishable by fine only, and by a three months imprisonment in default; and yet, if the intention of the Legislature were that section 53 should be applicable to dogs, the obtaining a dog by false pretences would involve, as in this case, seven years penal servitude. But this section is applicable solely to the obtaining of such articles by false pre- tences as might be either at common law or by previous statute the subject-matter of an indictment for larceny, if the facts were such as would support it. The preamble to the section says : " Whereas a failure of justice frequently arises from the subtle distinction between larceny and fraud, for remedy, &c. ;" and the clause concludes with this proviso : " Provided that if upon the trial of any person- indicted for such misde- meanor it shall be proved that he obtained the property in question in such a way as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor, and no such indictment shall be removable by certiorari, and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts." From this it is clear that the Legislature throughout looks at the probability and actually provides for the objection being raised that the facts amount to larceny. The present Dog Stealing Act, 8 & 9 Vict. c. 47., CROWN CASES RESERVED. 37 by section 1, repeals the provisions of 7 & 8 Geo. 4. 1859. c. 29. so far as it relates to dog stealing; and, by kobinsoVs section 2, enacts that to steal a dog shall be a mis- Case. demeanor, for which the offender shall be liable, on summary conviction, to imprisonment and hard la- bour not exceeding six months : and the same statute enacts that a second offence shall be an indictable misdemeanor. Brett, for the Crown. — It cannot be disputed that for some purposes dogs are chattels. They are chat- tels which pass to the executor, and for which trover will lie ; 1 Williams on Executors, Com. Dig. Action sur Trover, Ireland v. Higgins (a), Wright v. Ramscot (b), The Case of Swans (c) ; but it is said they are not chattels within this section, because they are not the subject of larceny at common law. The statute relating to false pretences was passed to provide a remedy in cases of cheating. The reason which is assigned why dogs should not be the subject of lar- ceny at common law is, not that they were not always considered to be chattels, but because " they are of so base a nature that a man shall not die for them;'' but death never was the punishment for cheating; and, therefore, the reason why dog stealing should not be a larceny does not apply. Words sufficiently large to include this offence are introduced into 38 Hen. 8. c. 1., 30 Geo. 2. c. 24. s. 1, and also into the statute now under consideration. Lord Campbell C. J. — It is clear that dog stealing was not felony at common law; the reason why it was not is immaterial. Brett. — Assuming that dogs are not the subject of larceny, they may well be within the section in ques- tion, They are within the words of the section, and (a) Cro. Eliz. 125. (*) 1 Wms. Saund. 83. (c) 7 Rep. 15 b. 38 CROWN CASES RESERVED. 1859. there is no reason why the words should not have Robinson's their full effect. Case. Loj.,j Campbell C. J.— It is admitted that dog- stealing is not larceny at common law, and a specific punishment of a milder character has been enacted by the later statute, which makes the offence a mis- demeanor. That being so, it would be monstrous to say that obtaining a dog by false pretences comes within the statute 7 & 8 Geo. 4. c. 29. s. 53., by which the offender is liable to seven years penal servitude. My brother Coleridge used to say that no indictment would lie under that section unless, if the facts justi- fied it, the prisoner could be indicted for larceny, and that is now my opinion. Martin B. — I think this conviction cannot be sustained. The question is one entirely of the con- struction of the statute. WiLLES J. — From the Year Books downwards, in- cluding the case of Swans (a), dogs have always been held not to be the subject of larceny at common law. The other learned Judges concurred. Conviction quashed. (a) 7 Rep. 15 6. 1858. REGINA v. AARON LYONS. It is a felony, The foUowiug case was reserved at the Summer Vict. c. 19. Assizes for the county of Salojp by Byles J. s. 8., coupled ^ i ^ with 7 Wm. 4 & 1 Vict. s. ^^„ for a man to set fire to his own goods in his own house with intent, by burning the goods, to defraud an insurance Company. Where, there- fore, an indictment charged that A. L. " feloniously, &c., set fire to certain goods and chattels of him the said A. X., to wit &c., then being in a certain building, to wit a certain house situate, &c., and then in the possession and occupation of the said A. Z., with the intent in so doing to defraud the said insurance Company known by the name of &c., against the form of the statute &c., and against the peace &c.," it was held sufficient. CROWN CASES RESERVED, 39 The prisoner was indicted for setting fire, in a 1858. house in his own occupation, to his own goods, l^Ws~ consisting of furniture and stock in trade, with intent ^^^*'- to defraud an insurance office. The goods, according to the evidence, had been insured against fire, and were in the prisoner's own house, no part of which house was burnt. It was objected that the setting fire to the prisoner's own goods in his own house, though with intent to defraud the insurance office by burning the goods, was not felony at common law: that the prisoner could only be convicted, if at all, under the 14 & 15 Vict. c. 19. s. 8., which enacts that if any person shall maliciously set fire to any goods being in a building, the setting fire to which building is made felony by statute, he shall be guilty of felony : that the setting fire to a man's own house being no offence at common law, the only statute which makes it a felony is the 7 Wm. 4 & 1 Vict. c. 89. s. 3., whereby it is enacted that whosoever shall maliciously set fire to any house, &c., whether the same shall be in the possession of the offender or of any other person, with intent thereby to injure or defraud any person, shall be guilty of felony: that the setting fire to a man's own house with intent to defraud, not by burn- ing the house, but by burning the goods therein, was not made felony by the last mentioned statute. The jury found the prisoner guilty of maliciously setting fire to his own goods in his own house, with intent, by burning the goods, to defraud the insurance office. I reserved the question- whether the act so found amounted to a felony ; but sentenced the prisoner to years penal servitude, on which sentence he is still in custody. J. Barnard Byles. 40 CROWN CASES RESERVED. 1858, This case was argued, on 20th November 1858, Ltons's before Pollock C. B., Wightman J., Williams J., Case. Byj^gg J and Hill J. Scotland appeared for the Crown, and Cook Evans for the prisoner. Cook Eb-ans, for the prisoner. — I contend that the prisoner is not guilty of a felony either at common law or by statute. Arson is thus defined in 1 Hale P. C. 566 : " The felony of arson or wilful burning of houses, is described by my Lord Coke, cap. 15, p. 66, to be the malicious and voluntary burning the house of another by night or by day;" and we find the same definition in Hawkins and in East's Pleas of the Crown. In 4 Black., ch. 16, it is said: "Arson, ab ardendo, is the malicious and wilful burning of the house or outhouse oi another man." In Rex V. Pedley {a) Lord Mansfield says: "The law is now established and settled that if a tenant set fire to the house of his landlord he is not guilty of arson. The legal definition of this crime is burning the house of another ; and it was lately determined in Breemes Case (6), by the unanimous opinion of nine Judges, that it is not felony to burn a house of which the oiFender is in possession by virtue of a lease for years " It is necessary in considering the subsequent statutes to bear in mind that this was the state of the law which those statutes were intended to remedy. It was first made felony for a man to set fire to a house in his own occupation by stat. 43 Geo. 3. c. 58. : and that statute and all the other statutes relating to the subject, and there are several of them, point to an intent to defraud by the .act of setting fire to the house or building, and not by burning goods or chattels; and were intended to meet the mischief created by the decisions to which I have referred. (a) 1 Leach C. C, case 122, p. 242, 4th edition. (J) 1 Leach C. C, case 109, p. 220, 4th edition. CROWN CASES RESERVED. 41 Byles J. — The question in this case turns on the 1858. meaning of the word "thereby" in section 3 of LroNs's 7 Wm. 4 & 1 Vict. c. 89 (a). ^'''^■ Cook Evans. — Setting fire to the house simpUciter is not made felony by that section. To constitute the felony, the setting fire to the house must be with intent thereby (that is by setting fire to the house) to injure or defraud some person. I contend that, if the prisoner had been indicted for setting fire to the house " with intent to defraud by burning the goods therein," he could not have been convicted under this section, inasmuch as the intent to injure or defraud to which the section points is the intent to do so by burning the house and not by burning the goods. Byles J. — In the case of a man setting fire to his house with intent to defraud by burning his goods therein, would not the setting fire to the house be an event in the chain of causation ? Cook Evans. — " Thereby " means " by that act." The result must be the direct, immediate and neces- sary consequence of the act as distinguished from the possible and probable consequence. WiGHTMAN J. — Suppose a man set on fire his goods in his house, the goods not insured, the house not insured, but some person was in the house, and the house was perfectly untouched by the fire, would he be guilty of a felony ? Cook Evans. — I submit that that would not come (a) That section enacts, " That malt-house, hop-oast, barn or gra- whosoever shall unlawfully and nary, or to any building or erection maliciously set fire to any church used in carrying on any trade or or chapel, or to any chapel for the manufacture or any branch thereof, religious worship of persons dis- whether the same or any of them senting from the United Church of respectively shall then be in the England and Ireland, or shall un- possession of the offender or in the lawfully and maliciously set fire to possession of any other person, with any house, stable, coach-house, out- intent thereby to injure or defraud house, warehouse, office, shop, mill, any person, shall be guiltyof felony." 42 CROWN CASES RESERVED. 18.58. within the second or any other section of the 7 Wm. 4 Ltons's & 1 Vict. c. 89. ^''^'^- Section 8 of the 14 & 15 Vict. c. 19., on which the other side will rely, creates an entirely new class of ofiFences, and was intended for the protection of build- ings of an entirely different character to those referred to in the 7 Wm. 4 & 1 Vict. c. 89.; and the term " buildings," in the latter clause of section 8 (a) of 14 & 15 Vict. c. 19., must be understood to mean buildings ejusdem generis with the classes enumerated in the first branch of the section, and does not include a house occupied as this was. Mr. Greaves, in his edition of Lord Campbell's Acts, in a note to this section says : — " The latter part of this section is intended to meet all those cases where persons, intending to set fire to buildings, actually set fire to some matter or other in such buildings, but fail, through some cause or other, in actually setting fire to such buildings themselves." Having been the person entrusted with the preparation of this statute, Mr. Greaves^s opinion is worthy of consideration, and if his view be the correct one the prisoner is not guilty of an offence within that section. Pollock C. B The Court entertains a doubt whe- ther the indictment sufficiently charges the offence. Is there any count to bring the case within the two statutes ? Scotland, for the Crown. — There are several counts in the indictment, but the one upon which the prisoner (a) That section enacts that is provided for, and the section then "If any person shall wilfully and proceeds: — "And if any person maliciously set fire to any station, shall wilfully and maliciously set fire engine-house, warehouse or other to any goods or chattels being in building belonging or appertaining any building, the setting fire to to any railway, dock, canal or other which is made felony by this or navigation, every such person shall any other Act of Parliament, every be guilty of felony." such offender shall be guilty of The punishment of such offenders felony." CROWN CASES RESERVED. 43 was found guilty alleged that he " feloniously, wilfully i858. and maliciously set fire to certain goods and chattels -Lyons's of him the said Aaron Lyons, to wit, one straw mat- Case, tress, 1000 lucifer matches, &c., then being in a cer- tain building, to wit a certain house situate at the parish aforesaid in the county aforesaid, and then in the possession and occupation of the said Aaron Lyons, with the intent in so doing to defraud the said insur- ance Company, called and known by the name of The Shropshire and North Wales Assurance Company, against the form of the statutes in such case made and provided, and against the peace of our lady the Queen, her Crown and dignity." That count, I submit, clearly brings the oflPence within the statutes. Williams J. — The statute seems to have been worded somewhat hastily. You say that setting fire to goods in any house which is the subject of arson would be sufficient ; adopting that construction there is nothing in the statute which requires the intent to defraud to be alleged. Scotland. — I say that if instead of the goods the defendant had set fire to the house with intent thereby to burn the goods and defraud the insurance Com- pany, that would have been a felony under section 3 of 7 Wm. 4 & 1 Vict. c. 89. ; and, therefore, that the goods in this case were in a building the setting fire to which would have been a felony within that statute, and consequently that the prisoner has been properly convicted of the offence of arson under the statute 14 & 15 Vict. c. 19. s. 8. WiGHTMAN J Putting to you the same question I put to Mr. Evans, supposing a man set fire to his own goods in his own house, the goods not insured, the house not insured, but some person was in the house, and the house was perfectly untouched by the fire ? Scotland — There, if the house were a dwelling- house, the setting fire to it would be a felony within 44 CROWN CASES RESERVED. _ 1858. section 2 of 7 Wm. 4 & 1 Vict. c. 89. ; and the setting Ltons's fire to goods in such a house would be an oflFence ^'''^- within the terms of section 8 of 14 & 15 Vict. c. 19. Williams J. — Is there any Act which makes the setting fire to a building simpliciter a felony ? Cooh Evans.— Yes. The 12 Geo. 3. c. 24. s. 1. made the wilfully setting fire to' any of his Majesty's ships of war, arsenals, magazines or dock yards, or any buildings erected therein or belonging thereto, or any place where any ammunition of war or stores are kept, felony. Williams J. — Is that an unrepealed Act ? Cook Evans. — It is. Scotland. — However that may be, here the jury have found the intent to defraud ; and the setting fire to the house with the intent to burn the goods and so defraud the Company would have been a felony Byles J. — The doubtful question at the trial was whether the word " thereby " in the 7 Wm. 4 & 1 Vict, c. 89. s. 3. ought not to be read in a literal sense. Scotland. — I say that "thereby" means nothing more than " by means of." To hold the contrary would lead to serious consequences. The word building is not confined to the class referred to in 14 & 15 Vict. c. 15., but extends to houses mentioned in section 3 of 7 Wm. 4 & 1 Vict, c. 89. Cook Evans, in reply. — Whatever the consequences may be, we must not strain the words of the Legisla- ture to meet a particular case. The 8th section of the 14 & 15 Vict. c. 15. was only intended to apply to cases where the intent was to defraud by burning the house or building ; and, even if the ofifence intended to be charged is really an oflfence within the statute, the facts and circumstances necessary to con- stitute that ofiience are not sufficiently alleged in the indictment. CROWN CASES RESERVED. 45 Pollock C. B. — We are all of opinion that this 1858. conviction must be affirmed. The objection raised lyons's by Mr. Evans is that with respect to the 8th clause ^'"^• of 14 & 15 Vict. c. 19.: — "And if any person shall wilfully and maliciously set fire to any goods or chat- tels being in any building the setting fire to which is made felony by this or any other Act of Parliament, every such offender shall be guilty of felony" — it applies only to the case where the setting fire to the house per se is an offence ; and we are referred to a statute, 12 Geo. 3. c. 24., which makes it an offence to set fire to certain public buildings; and it is urged that we therefore ought not to connect the statute on which the indictment is framed with the statute 7 Wm. 4 & 1 Vict. c. 89. s. 3. so as to assist this indictment, and that we cannot so connect them with- out importing something that the Legislature has not expressed ; but we are all of opinion that the objection cannot prevail. It is likely that a hundred years ago such an objection might have succeeded. Statutes were then required to be perfectly precise, and resort was not had to a reasonable construction of the Act, and thereby criminals were often allowed to escape. This is not the present mode of construing Acts of Parlia- ment. They are construed now with reference to the true meaning and real intention of the Legislature. Now, under the statute referred to by the prisoner's counsel, the simply setting fire to a building would not be a felony. It would be necessary in the indict- ment to add the words " wilfully and maliciously," which are not in the statute 14 & 15 Vict. c. 19. To make it an offence the setting fire to a house must be wilful and malicious, or there must be some one in the house, or it must be done with intent to injure or de- fraud. Under the statute 14 & 15 Vict. c.l9, we think 46 1858. Ltons's Case. CROWN CASES RESERVED. the offence is complete if there be a setting fire to the goods under such circumstances as, if shewn with respect to a house set on fire, would render the setting fire to the house a felony. Here the intent to defraud is alleged with respect to the goods. The setting fire to the house with the like intent would be a felony. We think that the offence is sufficiently stated in the count referred to, and that the case is brought within the two Acts of Parliament. The other learned Judges concurred. Conviction affirmed. 1859. EEGINA V. JAMES BEEEY. A summons The foUowing casc was reserved by Hill J. by a justice -^.t the Winter Assizes, 1858, for Liverpool, James °^ T^Tk^t ^^''""'y ^^s tried before me for perjury. Vict. c. 101. and 8 Vict. c. 10., on the application of the mother of a bastard child against the putative father, more than twelve months after the birth of such child. The summons stated that the mother alleged that the defendant had paid money for the maintenance of the child within twelve months after its birth, but cud not state that she had " upon proof" applied ; and it appeared in feet that no such proof had been given except the state- ment of the mother (not upon oath) to the justice. The putative father appeared at the Petty Sessions, according to the exigency of the summons, and made no objection to the proceedings ; and the case, on the hearing at such Petty Session, was gone into upon the merits, when he swore that he had not paid any money for the maintenance of the child. Hq was thereupon indicted for perjury and convicted. Held, by Lord Campbell C. J., Maetin B., Crowder J., Wllles J. and Watson B, : 1. That a proceeding under the above statutes against the putative father of a bastard child is not a proceeding inpcenam, but is in the nature of a civil suit. 2. That evidence of the payment of money by the putative father within the twelve months was material on the hearing of the summons. Held, by Lord Campbeli. C. J., Crowder J., Willbs J. and Watson B. (Maetin B. dissentieiite), that, assuming that there ought to have been evidence on oath of the pay- ment of money by the putative father within the twelve months before the issuing of the summons, the defendant had submitted to the jurisdiction of the Petty Sessions, and waived and cured the want of such evidence, which was a mere irregularity in procedure. Held, by Martin B., that the jurisdiction of the justice to issue the summons was a special jurisdiction ; that to create it there must be proof on oath as a condition pre- cedent,, and that no subsequent appearance could cure the want of such proof; the distinction being between a Court of general jurisdiction and a special one, and not between proceedings of a civil and erimmal nature. CROWN CASES RESERVED. 47 The perjury was alleged to have been committed 1859. upon the hearing of a summons, a copy of which is beeby's as follows. Case. "To James Berry, of Worsley, in the county of Lancaster, gamekeeper, " County of Lancaster, "i Whereas application hath Petty Sessional Division > been this day made to me, of Manchester, to wit. j the undersigned, one of her Majesty's justices of the peace for the county of Lancaster, by Martha Humphreys, single woman, residing at Eccles, in the Petty Sessional Division of Manchester, in the said county of Lancaster, for which I act, who hath been delivered of a bastard child since the passing of the Act of the eighth year of the reign of her present Majesty, intituled " An Act for the further amendment of the laws relating to the Poor in England," and more than twelve calendar months from the date hereof, and of which bastard child she alleges you to be the father, and that you have paid money for its maintenance within twelve months after its birth, for a summons to be served upon you to appear at a petty Session of the Peace, according to the form of the statute in such case made and provided. " These are therefore to require you to appear at the Petty Sessions of the justices holden at the Court- house in Worsley in the said county of Lancaster, being the Petty Sessions for the Division of Man- chester, in which I usually act, on Wednesday the 17th Aaj oi November instant, at one of the clock in the afternoon, to answer any complaint which she shall then and there make against you touching the premises. "Herein fail not. Given under my hand at the Court-house in Worsley aforesaid this third day of November in the year of our Lord 1858. " E. L. Trafford. 48 ^ CROWN CASES RESERVED, 1859. '^JSfote. — If you neglect to appear at the Petty Ses- Berrt's sions as above stated, the justices, upon proof that ^^^^- this summons has been duly served upon you or left at your place of abode, may proceed, if they think fit, to make an order upon you, as the putative father of the child above referred to, to pay a weekly sum to the said mother for its maintebance, and other sums for costs and expences." When the summons came on to be heard, James Berry appeared personally in answer thereto; he was also assisted by an attorney; no objection was made to any of the proceedings on which the summons was founded, and the case was gone into on the merits before the stipendiary magistrate, who heard the same. Upon the hearing of the summons Martha Humphreys proved that she had lodged at Mrs. Sutdiff's house in Salford for eleven months before the birth of the child {April 12, 1856); that James Berry had visited her there constantly; that James Berry was the father of the child ; that James Berry visited her constantly at the same place after the birth of the child, and paid her money; that on the day after the birth of the child James Berry paid her 11. Is. Gd., and that he paid her a weekly sum for several weeks after. Other evidence having been given in support of the sum- mons, in answer thereto James Berry was sworn as a witness on his own behalf, and he deposed, amongst other things, " that he never paid Martha Humphreys any money at all on any account whatsoever;" and " that he never was in Sutcliff^s house in Salford" meaning Mrs. Sutdiff's house in which Martha Hum- phreys lodged. It was further proved upon the trial before me that the summons was issued by Mr. Trafford on the personal application of Martha Humphreys, who stated on such application, but not on oath, that she had been delivered of a bastard child more than CROWN CASES RESERVED. 49 twelve months previous, and that money had been 1859. paid by James Berry^ the father of the child, for its Berbv's maintenance within twelve months from its birth. ^^' It was objected at the trial before me, by counsel for James Berry, that the magistrate had no jurisdiction to hear the summons, as there had been no information in writing and no proof on oath of money having been paid for the maintenance of the child within twelve months from its birth, and that such information and proof were requisite prior to the issuing of the sum- mons under 7 & 8 Viet. c. 101. s. 2. and 8 & 9 Vict. c. 10. It was also objected that it was immaterial at the hearing of the summons whether moneys had been paid or not, as proof of that fact was necessary only prior to the issuing of the summons. I stated to the jury that, if the materiality of the matter sworn were a question of law, I thought it material upon the question of paternity whether the alleged father had paid money towards the expence of the confinement and the maintenance of the child, but that I should leave the question of materiality to them with the other facts. The jury found the pri- soner guilty. I postponed the sentence and reserved the objections taken by the prisoner's counsel for the judgment of the Court for the Consideration of Crown Cases. Hugh Hill, January 3rd, 1859. This case was argued, on 22nd January 1859, be- fore Lord Campbell C. J., Maetin B., Ceowder J., WiLLES J. and Watson B. R. Assheton Cross appeared for the Crown, and Atkinson Serjt. ( Wheeler with him) for the prisoner. Atkinson Seijt., for the prisoner. — It was objected on the trial that the payment of money for the main- VOL. I. E '50 CROWN CASES RESERVED. 1859. tenance of the child within twelve months after the birth Berbt's of such child was immaterial, and therefore perjury ^*^^* could not be assigned upon it : but as the case reserved finds that " the case was gone into on the merits before the stipendiary magistrate, who heard the same," this objection is not now open. Lord Campbell C. J- — Cduld it be seriously con- tended that proof of the payment of money by the putative father for the maintenance of the child was not material ? Atkinson Serjt. — That payment generally (as evi- dence corroborative of the mother) was material was not disputed; but payment within the twelve months was immaterial, as the putative father did not in fact deny the paternity on the hearing. The objection now made is that the application for the summons was not on oath as it ought to have been» It is conceded that such an application need neither be in writing nor on oath unless required by some statute to be so ; but an oath is indisputably necessary in a case of this kind by virtue of the 7 & 8 Vict. c. 101. and 8 & 9 Yict. c. 10. Section 2 of the former statute enacts " that any single woman who may be with child, or who may be delivered of a bastard child, after the passing of this Act, or who has been delivered of a bastard child within the period of six calendar months before the passing of this Act, may either before the birth, or at any time within twelve months from the birth of such child, or at any time thereafter, upon proof that the man alleged to be the father of such child has, within the twelve months next after the birth of such child, paid money for its mainten- ance, make application to any one justice of the peace acting for the Petty Sessional Division of the county, or for the city, borough or place in which she may reside, for a summons to be served on the man alleged CROWN CASES RESERVED. 51 by her to be the father of such child; and if such 1859. application be made before the birth of the child, B^uii^'B the woman shall make a deposition upon oath stating Case. who is the father of such child, and such justice of the peace shall thereupon issue his summons to the person alleged to be the father of such child to appear at a Petty Session to be holden after the expiration of six days at least for the Petty Sessional Division, city, borough or other place in which such justice usually acts." Then comes the statute 8 & 9 Vict. c. 10., whereby, after reciting that divers questions have been raised as to the validity of certain orders made under the previous statute, it is enacted that where proceedings are set forth according to the forms in the schedule annexed, the same shall be valid and sufficient in law. There is a schedule of forms given, and the sum- mons in a case like this recites that the mother has given the justice proof that the alleged father did pay money as required by the statute. The statutes therefore require that before the summons can issue the mother must give such proof, and give it as a condition precedent to any jurisdiction in the magis- trate; for the words '•'• upon proof '•'■make application" can only be satisfied by proof upon oath ; and, such proof not having been given, the whole of the hearing, when the perjury was alleged to be committed, was coram non jvdice and void for want of jurisdiction. Lord Campbell C. J. — But is not this a civil proceed- ing and the irregularity, assuming it to be one, waived by the defendant appearing and making no objection? Atkinson Serjt. — The question of waiver is based upon the maxim Quilibet potest renunciare juri pro se introducto (a), and has no application to any thing except what is intended for the benefit of the indi- (a) Broom's Max. 624, 3rd edit. E 2 52 CROWN CASES RESERVED. 1859. vidual dispensing with it. Again, it has no application Beebt's to a case where the individual neither in fact knows. Case. jjQj. jjgg ^jjQ means of knowing, what he is supposed to waive. Here the prisoner did not know, and could not by any means or process of law get to know, whether any such proof had or had not been given. The magistrate was sole judge of the facts and could not be compelled to disclose them. The wording of the summons itself was calculated to mislead the prisoner. Here the proof was not mere procedure but a sine qua non as to jurisdiction. Whether it is mere procedure or a condition prece- dent to the magistrate's jurisdiction derives consider- able light from the state of the law at the time the 7 & 8 Vict. c. 110. was passed. From the time of Elizabeth the parish officers took the initiative and not the mother. They were obliged to give fourteen days notice to the putative father before an application at the Petty Sessions. Thus had the Legislature from the earliest poor law carefully guarded the public against any initiatory power in the mother. It is not likely that the Legislature, who had so carefully provided, would at once, without any precautionary measures, transfer such a dangerous power to the mother upon her mere statement which could never be traversed or questioned. Lord Campbell C. J. — Do you say that payment within twelve months was not a traversable fact on the hearing ? Atkinson Serjt. — Payment generally was travers- able, but payment within a given time was not. As to proof on oath being necessary before the summons issues, it is to be observed that throughout all the sections of this statute (a) the words " testimony," " evidence," " proof," " proof upon oath" (b) " deposi- (a) See especially, ss. 7. 70. Bac. Abr. Evidence ; Bentham's (S) See Taylor on Evid. p. 1.; Jud. Evid. b. I. ch. 4. 6, CROWN CASES RESERVED. 53 Case. tion upon oath" (a) (though strictly difFerent in mean- 1859. ing) are used synonymously. If there be any difPerence Beeky's between them, it is in favour of the prisoner; for whether the word proof means evidence or effect of evidence, or means to an end, or the end itself, it is the most comprehensive term used. The words upon oath added to deposition are mere verbiage, for deposition ex vi termini means it. Crowder J. — Do you say that the proof given to the justice is conclusive? cannot be questioned? Atkinson Serjt. — Yes. He is the sole and final judge of that fact. Both as regards the necessity of an oath and the waiver, the case o{ Regina v. Scotton (b) is directly in point. That was the case of an informa- tion to recover penalties under the 6 & 7 Wm. 4. c. 65. s. 9., which required that before any proceeding should be taken the charge contained in the information should be deposed to on the oath of some person other than the informer, and the Court of Queen's Bench held that the jurisdiction of the justices was deficient where that requirement had not been complied with ; and Coleridge J., in his judgment, said, " I quite agree that this is a question of jurisdiction. Before any summons issues the charge must be deposed to on the oath of a credible witness. Here that had not been done." In that case the person charged appeared and made no objection. It is true that it was for penalties : but a bastardy order may end in distress and imprison- ment; and therefore the case is a direct authority in favour of the prisoner. A. Cross,£or the Crown. — I may treat the materiality as out of the question, and I therefore contend: 1. That the proof need not be on oath unless the statute "expressly requires it. 2. That an oath is not required (a) See Webster's Diet. ; 3 Bl. 100 ; Bentley's Case, 1 Str. 558. (6) 13 Law J. Mag. Cas. 58. Case. 64 CROWN CASES RESERVED. 1859. by this statute; and 3. That if it does require it the bjsbby's omission is only an error in procedure, and was waived. Lord Campbell C. J. — ^You may take your first proposition as acceded to ^w*. A. Cross Then I secondly contend that an oath is not required by this statute. The statute points to three conditions under which the summons may be applied for. First, there is the application within twelve months after the birth of the child, and in that case the woman has simply to make the application for the summons, no oath or proof being necessary. Secondly, the application after twelve months from the birth of the child," and that must be " upon proof" that the alleged father has within the twelve months next after the birth of such child paid money for its maintenance. Thirdly, the application before the birth of the child, and then the woman " must make a deposition upon oath." Thus, in the first case, there is the application simpliciter ; in the second " proof" of payment of money is required, and nothing said about deposition upon oath; and in the third a " depo- sition upon oath" is made necessary ; and in the forms given in the statute we find that in the first case the summons recites simply the application : in the second the form of application is headed as " the information and application" of the woman, recites that she has "given proof" of payment of money, and the applica- tion is at the foot stated to be " exhibited" before the justice, and no mention of an oath is made; while in the third case we find the application is called the " application and deposition" of the woman, and is said to be " exhibited and sworn." In 8 & 9 Vict, c. 10. 5. 11. the three sets of forms correspond; and I contend that the words of the second section of 7 & 8 Vict, and the forms given in that and the subsequent CROWN CASES EESERVBD. 55 statute, shew that it was not intended to require an 1859. oath in a case like the present; and the word "proof" bebey's seems properly to mean anything which serves either ^*^^- immediately or mediately to convince the mind of the truth or falsehood of a fact or proposition (a), and does not necessarily imply proof upon oath. In Baston V. Carew (6) it was held that it was not necessary that any information or complaint should be made in order to justify the interference of magistrates under the 11 Geo. 2. c. 19. 5. 16. There the statute did not in terms require an oath, and the Court of Queen's Bench held it to be unnecessary, acting upon the general principle of law that no oath is required unless, as Holroyd J. said, " specially directed by the Act of Parliament" under which the justices act. Regina v. Millard (c) is also an authority in my favour on this point. Marten B. — ^The general rule of law no doubt is, that, unless a statute requires it, an information need not be on oath, or even writing. Cross. — Yes; and 5aston v. Carew is a conclusive authority for that : but in this case it is important to shew that there may be an inquiry without hearing evidence on oath. Lord Campbell C. J.— If the fact must be proved on the hearing of the information, it is less material that the proof should be upon oath before the summons issues. (7^o.ss.— Thirdly. If proof on oath is required; at all events its omission is only an error in procedure, and was waived. The cases under the old Bastardy Acts are con- clusive on this point. In Rex v. The Justices of Wilt- id) Domat,Les Lois Civiles dans s. 3.; Best on Evid. 2nd ed. 1. 8. leur Ordre Naturel, part 1. liv. 3. (6) 3 Barn. & C. 649. , tit.6.; Bonnier, Traits des Preuves, (c) Dears. C. C. 166. Case. 56 CROWN CASES RESERVED. ^859. shire {a) the proceedings were under the old bastardy jBerrt's law, which provided that no application by the parish officers against the putative father of a bastard child should be heard unless seven days notice was given, and in that case the necessary notice had not been given, but the defendant appeared at the petty ses- sions, did not object to the want of notice, and desired the justices to remit the' charge to the Quarter Sessions, which they did; and the Court of Queen's Bench held that the defendant had precluded himself from after- wards objecting that there was a want of jurisdiction in the Petty Sessions, as he had by his own acts cured the defect. So in Regina v. Stoddart (b) it was held that a party who appeared at the Petty Sessions on the charge of being putative father, and desired to have his case heard at the Quarter Sessions, and entered into a recognizance reciting that he had due notice to appear at the Petty Sessions, was bound by that recital, and could not afterwards, on the hearing at the Quarter Sessions object that in fact such notice was not given ; and in Rex v. The Justices of Carnar- von (c), although the Court seemed to think that the sessions could not entertain an application by the overseers of a parish for an order to charge the putative father of a bastard child without proof of notice to such putative father, notwithstanding his appearance in Court, it was taken for granted that it was an objection which might be cured by waiver, and Rex v. Stone (d) is also in my favour on this point. Atkinson Serjt., in reply. — It is admitted that the application need not be in writing nor on oath, unless by force of a statute. But these statutes do make it a sine qua non. The case of Regina v. (a) 12 Ad. & Ell. 793. (c) 5 Nev. & M. 364. (6) 1 Gale & D. 654. (rf) 1 East, 639. CROWN CASES RESERVED. 57 Millard, if not in my favour, certainly is not against 1859. me; it decided simply that sections 24 and 30 of "Kerry's 8 Geo. 4. c. 30. are perfectly independent sections, ^^^'' not engrafted one upon the other as contended for; that section 30 did not control section 24, and that therefore an information on oath was not at all in that case necessary. As to the cases cited on the question of waiver, one general answer applies to all, namely, that the magis- trates had some jurisdiction : here the defect was ante- cedent in time to every scintilla of jurisdiction. The defect cannot be waived for these reasons, because the provision was not introduced for the individual's benefit but for that of the public or the mother; because the defendant did not know, nor had he the means of knowing anything of the want of jurisdiction, and because this is not really in the nature of a civil proceeding but strictly in poenam, as it is not neces- sarily for the payment of money only, for an order might be followed by distress or imprisonment. Cur. adv. vult. The judgment of the Court was delivered on 29th January., 1869. Lord Campbell C. J This case was argued before my brothers Martin, Crowder, Willes, Watson and myself. My brothers Crowder, Willes and Watson concur in the judgment I am about to deliver. In this case a summons was granted by a justice of peace, under 7 & 8 Vict. c. 101. and 8 Vict. c. 10., on the application of the mother o. a bastard child, against the defendant as the putative father, more than twelve months having elapsed since the birth of the child, he having within the twelve months next after the birth of the child paid money for its maintenance. 58 CKOWN CASES RESERVED. Case. 1859. The summons was according to the form given by Berry's 8 Vict, Schedule No. 6., except in saying that the mother alleged that the defendant had paid money for the maintenance of the child within twelve months after its birth, instead of saying that she had given proof of tSis fact. The defendant duly appeared at the Petty Sessions according' to the exigency of the summons. Being assisted by an attorney, he made no objection to the form of the summons or to any of the proceedings on which the summons was founded ; but he denied the paternity, and denied that he had paid any money for the maintenance of the child within twelve months after its birth or at any other time. The case was then gone into on the merits, and proof being given of the paternity and of the payment of money by the defendant for the maintenance of the child within twelve months after its birth, the de- fendant presented himself as a witness on his own behalf, and, having on oath denied the paternity, swore that he had never paid any money for the maintenance of the child. Among other assignments of perjury there was one upon the defendant's statement in his evidence that he had never paid any money for the maintenance of the child. At the trial before by brother Hill, strong evidence was given in support of this and other assign- ments of perjury. It was further proved that the summons was issued by the magistrate on the personal application of the mother, who then stated, but not on oath, that she had been delivered of a bastard child more than twelve months previously, and that money had been paid by James Berry, the father of the child, for its maintenance within twelve months from its birth. It was then objected, by the counsel for the defend- ant, that he could not be indicted for perjury in CROWN CASES RESERVED. 59 respect of what he swore at the hearing of the case at 1859. the Petty Sessions, as the summons was insufficient, bekry's and no proof on oath had been given before the '^^^^■ magistrate of the payment of the money having been made for the maintenance of the child previous to the issuing of the summons ; and further, it was objected that the assignment of perjury upon what the defendant swore respecting the payment of the money was upon a matter immaterial at the hearing of the summons. The defendant being convicted, both points were reserved by the learned Judge for the opinion of this Court- As to the second objection we never entertained the smallest doubt — clearly thinking that it was necessary to prove at the hearing the payment of the money by the defendant as alleged ; and further, that his pay- ment of money for the maintenance of the child was corroborative evidence of the paternity. As to the first objection, we took time to consider. After examining the Acts of Parliament and the authorities upon the subject, I am of opinion that this objection ought to be overruled. The proceeding against the putative father of a bastard child to obtain an order of affiliation and maintenance is not a proceeding in poenam to punish for a crime, but merely to impose a pecuniary obligation, and is a civil suit within the meaning of 14 & 15 Vict. c. 99. ss. 2. and 3. ; see Regina v. Lightfoot (a). For this reason the defendant was admitted as a witness on his own behalf. Then, what is the summons which we have to consider? Mere process to bring the defend- ant into Court in a civil suit. I incline to think that, according to strict regularity, before the summons issued there ought to have been evidence on oath of the payment of the money, (a) 6 Ell. & Bl. 822. 60 CROWN CASES EESERVED. 1859. although it is not expressly required by the statute Beert's to be on oath, as is the case where the complaint is Case. made before the birth of the child. Further, it would have been proper that the summons should have been in the form given by the Act of Parliament. But, supposing that, if the defendant had not appeared, the Petty Sessions could not lawfully have proceeded to hear evidence of the paternity ; or that, if he had appeared and objected to the regularity of the sum- mons, the objection ought to have prevailed. I am of opinion that when he actually appeared, and, in- stead of objecting to the regularity of the summons, he asked the Court to give judgment in his favour on the merits, and tendered evidence to absolve him from liability, he waived any irregularity there might be in the process, and that, when he had thus submitted himself to the jurisdiction of the Court, the Court had jurisdiction to hear and to decide the suit. No irre- gularity in the process to bring the defendant into Court in a civil suit can be taken advantage of by the defendant after he has appeared and pleaded and there has been judgment against him. The defendant's counsel chiefly relied upon Regina v. Scotton (a). But that was a criminal proceeding, the information being on a penal statute, to recover penalties for an offence created by Act of Parliament ; and there the Act of Parliament expressly provides, that " before any proceeding shall be had or taken upon the information, either for summoning the party accused or compelling his appearance to answer the same, the charge contained in such information shall be deposed to on the oath of some person or persons other than the informer." Beyond the information, a distinct deposition to the truth of the charge is made necessary before the magistrates can take cog- (a) 13 Law J. Mag. Cas. 58. CROWN CASES RESERVED. 61 iiizance of it. But the case oi Regina v. The Justices 1859. of Wiltshire (a) seems exactly in point on the other "bebrt^ side. That was a proceeding in bastardy, and (as Case. the la,w then stood) the parish officers, who applied for an order of maintenance, were bound to give the putative father seven days notice of the application before the Petty Sessions. In that case the notice had not been regularly given, but the defendant appeared at the Petty Sessions, and, without objecting to the want of the seven days notice, desired the justices to remit the charge to the Quarter Sessions, and entered into the recognizances which the law required, and it was held that he could not afterwards object that there was a want of jurisdiction to hear the case, as the appearance and proceedings at the Petty Sessions cured the defect. Lord Denman. — " As to the want of proof of the seven days notice required by the Act, it is enough to say that the defendant appeared before the Petty Sessions, and did not insist on want of notice." Littledale J. — "Any objection that might have been made to the want of seven days notice was cured by his appearance, and by the steps taken by him before the justices in Petty Sessions." Williams J. — " The want of due notice, supposing none to have been given, was cured by what took place at the Petty Sessions." Coleridge J.—" The answer to the objec- tion that no sufficient notice was given to appear at the Petty Sessions is, that the party has appeared, and, without objecting to the want of notice, has elected to have the case sent to the next Quarter Sessions, and entered into a recognizance accordingly. Now this cures the want of notice, and makes it unnecessary to consider whether there was one in fact, or whether it is sufficiently stated in the order." There are various other cases illustrating the same (a) 12 Ad. & Ell. 793. Case. 62 CROWN CASES RESERVED. 1859. principle, to be found in the books, but I do not con- Beebt's sider it necessary now to comment upon them. Thinking that any irregularity in the form of the summons, or in the manner in which it was granted, was waived and cured by the defendant having ap- peared, and, without objection, submitted to the juris- diction of the Petty Sessions, I am of opinion that the conviction ought to be affirmed. Martin B I cannot agree in the judgment that has been delivered by my Lord ; but I do not wish the case to be argued before the fifteen Judges. I think the jurisdiction is a special one, and that to create it there must be a proof on oath as a condition precedent, and that no subsequent appearance can cure it. I think the distinction is between a Court of general jurisdiction and a special one, and not between pro- ceedings of a civil and criminal nature. I think the cases cited do not apply ; in those cases the putative father was the active party in removing the case to the Quarter Sessions, where the objection was taken for the first time. Conviction affirmed. CROWN CASES RESERVED. 63 EEGINA ?). RICHARD FLETCHER. 1859. The following case was reserved by Hill J. The prisoner Richard Fletcher was tried before me at the Winter r^s indicted A* lofop T • T ^ rape Assizes 1858 for Liverpool, upon a charge of rape upon a girl of committed upon the person of Jane Jones. i^ct. inca-' Jane Jones was proved at the trial to be of the aee R^We of dia- ■, . tinguisnmg 01 13 years at the time of the offence charged: she right from was also proved to be of weak intellect, to be incapable who"las"not of distinguishing right from Avrong. Her mother ^^^^^^ ^ stated in her evidence that Jane was not allowed to any resist- go about by herself, and that she was unable to dis- ju'dge t^id tinguish the house in which she lived from that of the jury that J,, -ii /-viT " ™®y were any 01 the neighbours. On the day in question satisfied upon Jane had left the house without her mother's know- thatThfpri- ledge, the prisoner met her and it was proved bv ^o"^'','?^'^ . , I'll- carnal know- witnesses who saw them that the prisoner had sexual ledge of the intercourse with the girl; but she was not shewn to ^nl^l^ns^ have offered any resistance, thouarh she did exclaim fierwUithej iM I • -1 1 11 1 ought to con- whilst the prisoner was in the act that he hurt her, vict; and also and on the prisoner rising from her and her getting should be o^ up she made a start as if to run away. The girl opinion that T T - 1 1 • 1 • llTll ™^ S'" ^^^ Jane Jones was placed m the witness box, and 1 asked incapable of her several questions in the hearing of the jury to fenrfr"^^" ascertain if she possessed sufficient intelligence to be exercising any ludff- sworn. I was satisfied that she did not. ment upon It was objected, by counsel for prisoner, that the then??f*they charge of rape was not made out, as it was not proved were satisfied that the prisoner had carnal knowledge of the girl evidence that the prisoner had carnal knowledge of the girl by force and without Tier consent, they ought to find him guilty. The jury found the prisoner guilty, and stated that they considered that the girl was incapable of giving consent from defect of understanding. Held, that the conviction was right. 64 CROWN CASES RESERVED. 1859. against her will. I left the case to the jury, and I Pletcheb's stated to them that if they were satisfied upon the Case. evidence that the prisoner had carnal knowledge of the girl by force and against the will of the girl, they ought to convict the prisoner. Also, that if the jury should be of opinion that the girl was incapable of giving con- sent or of exercising any judgment upon the matter, then if they were satisfied upon the evidence that the prisoner had carnal knowledge of the girl by force and without her consent, they ought to find the prisoner guilty. The jury found the prisoner guilty, and in answer to a question from me they stated that they considered that Jane Jones was incapable of giving consent from defect of understanding. I directed the verdict of guilty to be recorded, but postponed passing sentence until the judgment of the Court for the Consideration of Crown Cases could be obtained upon the case. Hugh Hill. December 24, 1858. This case was argued, on 22nd January 1859, before Lord Campbell C. J., Martin B., Crowder J., Willes J. and Watson B. Joseph Kay appeared for the Crown, and i?. Assheton Cross for the prisoner. Cross, for the prisoner.-^This conviction cannot be sustained. Eape is the carnal knowledge of a female forcibly and against her will (a). In 3 Chitt. Crim. Law, 810, it is said: "It is the essential feature of this crime that it must be against the will of the female on whom it is committed." It must be committed forcibly by the man and against the will of the woman. (a) 1 Hale P. C. 627, 628; 1 123 J; 2 Inst. 180; 3 Inst. 60; 1 Hawk. P. C. o. 41, s. 2 ; Co. Litt. East, P. C. c. 10, s. 1, p. 434. CROWN CASES RESERVED. 65 There is a class of cases in which fraud has been 1859, held to supply the want of both these ingredients. In iwher's" Regina v. Camplin (a) where the prisoner having given ^'**^- a girl of thirteen years of age liquor for the purpose of exciting her, she became quite drunk, and when she was in a state of insensibility he violated her, it was held a rape ; but that decision was upon the ground that the prisoner had supplied the want of force and violence by his own act ; and the principle on which the judgment of the Court proceeded was explained by Patteson J., who, when he afterwards passed sen- tence upon the prisoner, said (6) : " Your case falls within the description of those cases in which force and violence constitute the crime, but in which fraud is held to supply the want of both." In Regina v. Case (c) the prisoner, a medical man, had connexion with a girl of fourteen years of age under the pretence that he was thereby treating her medi- cally for the complaint for which he was then attend- ing her, and the jury found that she made no resistance owing solely to the bond fide belief that such was the case ; and he was held to be guilty of an assault, on the ground that her non-resistance was caused by his own fraud. These cases go to shew that there must be either force or fraud, and here there was no forcible connexion and no act of the prisoner to supply the want of that force and violence which are necessary to constitute the crime. In the present case, owing to the state of the girl's mind, she was incapable of exercising a will ; the act therefore could not be against her will; that want of will was not caused by the prisoner, and on that ground the present case is distinguishable from those I have cited. The next class of cases to which I would refer are (a) 1 Den. C. C. 89 ; S. C. 1 (6) 1 Car. & K. 749. Car. & K. 746. (c) 1 Den. C. C. 580. VOL. I. I? 66 CROWN CASES RESERVED. 1859. those in which it has been held that if a married Fletcher's Woman assents to carnal connexion with a man under Case. tijg belief that he is her husband, the man cannot be convicted of rape. Lord Campbell C. J. — In those cases it was at first held that fraud supplied the place of force. Cross. — The question was finally settled in Rex v. Jackson (a), in which it was decided that having carnal knowledge of a woman, under circumstances which induce her to suppose it is her husband, does not amount to a rape. That decision was followed in Regina v. Williams (&) and in other cases ; and in Regina v. Clarke (c) the Judges refused to permit the question to be opened, considering themselves bound by the decision in Rex v. Jackson. There is another class of cases like that of Regina v. Read (d), where three boys were indicted for an assault on a girl of fourteen years. It was proved that each had connexion with her, and the jury found them guilty, " the child being an assenting party, but that from her tender years she did not know what she was about;" and it was held that a conviction for common assault could not be sustained. This leads to those cases which relate to having carnal knowledge of children of tender years. Previously to statute 18 JEliz. c. 7. it was doubted whether a rape could be committed upon a female child under ten years of age; Dyer, 304; 1 East P. C. 435. Mr. East says, that in consequence of that doubt section 4 of that statute, " for a plain declaration of the law," enacts " that if any person shall carnally know and abuse any woman child under the age of ten years, every such unlawful carnal knowledge shall be felony." Such doubts could scarcely have arisen (a) Russ. & Ry. 487. (c) Dears. C. C. 397. (6) 8 Car'. & P. 286. (d) 1 Den. C. C. 377. CROWN CASES RESERVED. 67 if the definition of rape had been such as is now con- 1859. tended for, and Mr. East in his commentary on that fi.btchbr'8 statute says :--" This last mentioned offence, however, ^'''^• is not properly speaking a rape, wJiich implies a carnal knowledge against the will of the party; but a felony created by this statute, under which the consent or non-consent of the child under the age of ten years is immaterial." At page 448, when speaking of the form of indictment, Mr. East says: "If the indict- ment be upon the stat. 18 Eliz. for deflowering a child under ten years of age, with her consent, it seems necessary to conclude against the form of the statute ; because the crime as well as the punishment is created by that statute. And on the same account it is neces- sary for the indictment to pursue the words of the Act, and charge that the defendant feloniously, unlaw- fully and carnally knew and abused, the party being under the age of ten years, without adding the words ravished for the reason before stated." If this be law, the case of an idiot would fall under the same reasoning. Lord Campbell C. J. — You have stated the result of the authorities very satisfactorily; but we shall be glad to have your commentary upon the statute 1 3 Edw. I.e. 34. (a). What do you say to the definition of rape in that statute, which enacts that " If a man do ravish a woman, married, maid or other, where she did not consent neither before nor after, he shall have judgment of life and of member?"(&) Cross. — That section imports the definition of the word rape into the word ravish, and it does not alter the common law definition of rape; and if you were to (a) Statute Westm. 2, c. 34.; la ou el ne soit assentus, ne avant, 2 Co. Inst. 433. " Purvieu est, que ne apres eyt judgement de vie et de si home ravist feme espouse, dame- membre." selle, ou autei- feme deformes, per (b) 1 East P. C. 435. F 2 68 CROWN CASES RESERVED. 1859, draw an indictment under that statute, you must have ri-ETCHER's the word rapuit which includes force. If the defini- ^^'^- tion of rape in the statute 13 Edw. 1. is taken to be against me, the doctrine which Mr. East lays down in his commentary upon the stat. 18 Eliz. c. 7. is not law; nor are the other authorities cited, which say that to constitute a rape it must be against the will of the woman. Joseph Kay, for the Crown. — Rape is not rightly defined when it is said to be "the having unlawful and carnal knowledge of a woman by force and against her ivill." The true definition of rape is " the having unlawful and carnal knowledge of a woman by force and without her consent." That this is the true definition is clear from the statute of Westminster 2. c. 34. (1 Rale P. C. 627), by which rape was a second time made a felony. For some time previously it had been reduced to the nature of a misdemeanor. The words of the statute are : " If a man ravish a married woman, dame or damsel, where she neither assented before nor after, egt judgement de vie et de membre ; if she assent after, yet the King shall have the suit" (a). But it is not necessary to rest the argument upon this statutable definition. There are two authorities expressly in point, Regina v. Camplin (b) and Begina v. JRyan (c). There is a very valuable note to the report of the case of Begina v. Camplin in Denison's Crown Cases (rf), furnished by Parke B. after judg- •ment had been delivered, and giving the reasons for the decision of the Judges in that case. In that note it is said that several of the Judges thought " that the crime of rape is committed by violating a woman (a) See ante, p. 67, note (o). (c) 2 Cox C. C. 115. (J) 1 Den. C. C. 89. (J) 1 Den. C. C, Addenda XVTI. CROWN CASES RESERVED. 69 when she is in a state of insensibility and has no IS59. power over her will, whether such state is caused by fj,etcher's' the man or not, the accused knowing at the time that Case. she is in that state; and Tindal C. J. and Parhe B. remarked that in a stat. of Westminster 2. c. 34. the offence of rape is described to be ravishing a woman ' where she did not consent,' and not ravishing against her will." In Regina v. Camplin the woman was quite as incapable of exercising any will as in the case now before the Court. She was insensible, and she had been made so by liquor administered to her by the prisoner for the purpose of exciting desire ; and whilst she was in that condition he had connexion with her. If it be essential to the crime of rape that it should have been committed against the will of the woman, or, in other words, that she should have exercised her will in opposition to the man, neither the considered case of Regina v. Camplin nor the case of Regina v. Ryan could be supported. The note was furnished by Parke B, no doubt to explain the expressions which were attributed to Patteson J. by the report of the judgment in Regina V. Camplin which appeared in 1 Car. & Kir. 749, in which Patteson J. is made to say : " A great majority of the Judges are of opinion that the evidence that the rape was committed without the consent and against the will of the prosecutrix was sufficient, and that consequently the offence has been completely proved." Lord Campbell C. J. — That note is a very important one, and was evidently handed in to the reporter at the last moment. Kay. — There is some evidence in this case that the offence was committed against the will of the girl, but that is not now relied on. The case of Regina v. Ryan (a) is directly in point. There the prisoner (a) 2CoxC. C. 115. Case. 70 CROWN CASES RESERVED. 1859. was convicted of a rape on the person of an idiot, Fletchee's who was unable to distinguish right from wrong, and Piatt B., in summing up, adopted the definition of rape laid down by the Judges in Regina v. Camplin, and said : " The question is, did the connexion take place with her consent? If she was in a state of unconsciousness at the time the connexion took place, whether it was produced by any act of the prisoner or by any act of her own, any one having connexion with her would be guilty of rape. If you believe that she was in a state of unconsciousness, the law assumes that the connexion took place without her consent, and the prisoner is guilty of the crime charged." Lord Campbell C. J. — My brother Willes tells me he ruled in similar terms in a recent case which was tried before him. Willes J That case was tried before me at the Old Bailey. It was the case of a rape upon an idiot girl. I directed the jury that if they were satisfied that the girl was in such a state of idiotcy as to be incapable of expressing either consent or dissent, and that the prisoner had connexion with her without her consent, it was their duty to find him guilty; but I also told them that a consent produced by mere animal instinct would be sufficient to prevent the act from constituting a rape. Kay. — In Regina v. Case (a), Regina v. Clarke (6), Regina v. Saunders {c),Rex v. Jackson (d) and Regina v. Williams (e), the woman consented, although the consent was obtained by fraud. Kay was stopped by the Court. Cross, in reply Regina v. Ryan was the decision (a) 1 Den. C. C. 580. (i) Russ. & Ry. 487. (J) Dears. C. C. 397. (e) 8 Car. & P. 286. (c) 8 Car. & P. 265. CROWN CASES RESERVED. 71 of one Judge. The definition of rape by all the 1859. greater writers on the criminal law is opposed to the Fletcher's definition adopted in Regina v, CampUn and Regina v. ^^^^■ Ryan, and explains the true meaning of the old statute of Westminster. Lord Campbell C. J. — The question is, what is the real definition of the crime of rape, whether it is the ravishing a woman against her will or without her consent. If the former is the correct definition, the crime is not in this case proved; if the latter, it is proved. Camplin's Case seems to me really to settle what the proper definition is; and the decision in that case rests upon the authority of an Act of Parliament. The statute of Westminster 2. c. 34. defines the crime to be where " a man do ravish a woman, married, maid, or other, where she did not consent neither before nor after" (a). We are bound by that definition, and it was adopted in Camplin's Case, acted upon in RyarHs Case, and subsequently in a case before my brother WiLLES. It would be monstrous to say that, if a drunken woman returning from market lay down and fell asleep by the roadside, and a man, by force, had connexion with her whilst she was in a state of insensibility and incapable of giving consent, he would not be guilty of rape. Martin B. — I am quite content to take the defini- tion of rape as we find it in the statute, and that definition has been adopted in the cases of Regina v. Canvplin and Regina v. Ryan. The other learned Judges concurred. Conviction affirmed. (a) 2 Co. Inst. 433. 72 CROWN CASES RESERVED. 1859. REGINA V. GEORGE CUNNINGHAM, GEOEGE BROWN and EDWARD SUMMERS. Three pri- soners were indicted for feloniously cutting and wounding E. R. with intent to do him grievous bodily harm. The jury found two of them guilty The following case was reserved at the Summer Assizes for the county of Glamorgan by Crompton J. The prisoners, who were stated by the prosecutor's counsel in his opening to be American subjects, though no proof was given of that fact, were indicted before me at the last Summer Assizes, 1858, for the county of Glamorgan, for feloniously wounding Edward Riley, in the county of Glamorgan, with intent to do him of the felony gome ffrevous bodily harm. Cunninqham and Summers charged, and " , •' _ "^ , the third were couvicted of the felonious wounding, and Brown misdemeanor of the misdemeanor of maliciously and unlawfully of unlawfully woundine". The prisoners were the three mates of wounding. ^ . _ '■ The venue of the American ship Gleaner, and Riley was a seaman men'tVaT °" board the said ship. The Gleaner sailed from the Glamorgan- docks of Cardiff ou 29th of May last, and proceeded shire, and it "^ -,•r,^-^^^^ appeared that to an anchorage ground in Penarth Roads, where she the offence anchored in eleven fathoms. The offence in question took place shortly before she arrived at the above anchorage ground, and when the ship was three quarters of a mile from land in a place never left dry by the tide; but she was within was com- mitted on board an American ship in the Penarth Roads in the Bristol Channel, three quarters of a mile from the coast of Glamorganshire, at a spot never left dry by the tide, but within a quaiter of a mile from the land which is left dry by the tide. The place in question was between Glamorganshire and the Flat Holms, an Island treated as part of the county of Glamorgan, the ship being at the time two miles from the island on the inside. It was about ten miles from the opposite shore of Somerset- shire, and ninety miles from the roads to the mouth of the Channel. Held, that the part of the sea where the vessel was at the time when the offence was committed was within the body of the county of Glamorgan. Semble, that under section 5 of 14 & 15 Vict. c. 19., it was competent for the jury •to find two of the prisoners guilty of the felony charged, and the third guilty of unlaw- ful wounding. CROWN CASES RESERVED. 73 a quarter of a mile of the land which is left dry by 1859. the tide. The shore of the county of Glamorgan Cbnning^ extends many miles up and down the Bristol Channel =*^J« from the place were the offence was committed. The spot in question was in the Bristol Channel between the Glamorganshire and Somersetshire coasts, and was about ten miles or more from the opposite shore of Somersetshire. Penarth Roads are ordinary roadsteads for ships coming into Cardiff or calling there for orders, and large vessels anchor there. Two islands called the Flat and Steep Holms are outside the anchorage ground, and farther from the shore than it is, but not lower down the Channel., being abreast of the anchorage grounds. It is about ninety miles from Penarth Roads to the mouth of the Channel. When the offence was conamitted, the ship was inside and about two miles from the Flat Holms and four or five miles from the Steep Holms, and was within Lavernock Point in Penarth Roads, but outside Penarth Head. Penarth Head and Lavernock Point form a bay. It is three miles from Lavernock Point. At Penarth Head persons can see from one to the other, and could see what a vessel was doing from one to the other, but could not see the people from one to the other. From where the ship was persons could see people at Lavernock, and see what they were doing if they took particular notice of them, and they could see the coast of Somersetshire on a clear day. Flat Holms, Cardiff, Lavernock and Penarth are laid down properly in a map shewn to one of the witnesses, a pilot, from a map of counties; but Steep Holms is laid down too far to the west there. The mouth of the Severn was proved to be at King's Road higher up the Channel, and that is to be taken as the finding of the jury. A person who had been clerk to the borough ma- 74 CROWN CASES RESERVED. 1859. gistrates of Cardiff for five years stated in his evidence Cunning- that he knew the Holms; that they are part of the Case.^ parish of St. Mary's, Cardiff; that he had issued a v^arrant for poor rates there ; that he never executed any such warrant, they were given to the overseers. And a collector of the income tax of the said parish stated that he knew the Flat Holms, and that he had collected taxes from the occupiers of the Flat Holms for St. Mary's parish. The Gazette of Tuesday, 4th January, 1848, was put in, containing an order of the Lords Commissioners of Her Majesty's Treasury, whereby the limits of the port of Cardiff were to commence at the river Bumney, and continue along the coast of the county of Glamorgan to a place called Nash Point in the said county; and that the limits seaward of the said port should extend to a distance from low-water mark of three miles into the sea, in- cluding all islands, rivers and creeks within the said limits. The place in question was within these limits. It was proved by a witness that the .port of Cardiff extends to the JSfash Point eighteen miles lower down the Channel than the place in question. Ships hail from Lavernock to the port of Cardiff. The Nash is marked with a + in the county map above referred to and is two miles from St. Donafs, and Lavernock is the place marked Aherthaw in that map, and is under the custom-house at Cardiff. A true chart of the places inside the Fenarth Head accompanies this case (a) : all in the chart is in the port of Cardiff: a pencil + on the chart shews the place where the oflFence was committed, at the mouth of the river Ely, being a quarter of a mile to sea beyond low- water mark, but in the port of Cardiff. A ship anchoring there would not pay harbour dues; and the place is not a harbour, but a roadstead. A clerk in the Cardiff (a) The chart did not in fact accompany the case. HAM S Case. CROWN CASES RESERVED. 75 custom-house stated that he knew the limits of the 1859. port of Cardiff as read from the Gazette; that the Cunning- officers of the customs of the port of Cardiff act with- in these limits in every way that their duty requires them ; but he said, on cross-examination, that he was a clerk and had executed no official duty except at the office ; that the creek of Aberthaw was within the port of Cardiff, and that he had attended with the comptroller at a survey on that creek, but he did not appear to have personally seen any other exercise of jurisdiction within the limits. The indictment charging the offence to have been committed in the county of Glamorgan, and not being framed under the 7 & 8 Vict. c. 2., as it contained no averment, according to the 2nd section, that the facts had taken place " on the high seas," the question arose whether the prisoners could properly be convicted of the offence in the county of Glamorgan upon so much of the above facts as were properly admissible in evi- dence against the prisoners, and there was a further question whether the prisoner Brown could be pro- perly convicted of the misdemeanor of unlawfully wounding on the same count upon which the two other prisoners were found guilty of the felonious wounding. I sentenced the prisoners Cunningham and Summers each to six years penal servitude, and the prisoner Brown to eight months hard labour, and they are now in confinement under such sentences. I reserved for the consideration of this Court the two questions. First: Whether the prisoners were properly con- victed of an offence in the county of Glamorgan ; and, Secondly: Whether the prisoner Brown was pro- perly convicted of misdemeanor. Chables Ceompton. 76 CROWN CASES RESERVED. ^859. This case was argaed before Cockbuen C. J., CuHNTNG- WiGHTMAN J., Williams J., Channell B. and Hill ctTef J- "Q the ]3th November 1858, and the 15th January 1859. Bowen appeared for the Crown, and Hardinge Gif- fard for the prisoners. Hardinge Giffard, for the prisoners — There was no evidence that the oflPence was committed within the county of Glamorgan. It was in fact committed on the high seas ; and, although such offences are triable, by statute, by justices of oyer and terminer, and the county where the trial is had may be laid as the venue" in the margin, the indictment in this case does not allege that the material facts took place on the high seas, and it is therefore essential to prove that the place where the alleged offence was committed was within the body of the county named as the venue in the margin of the indictment. At common law the place where the offence was committed was within the jurisdiction of the Admi- ralty, and it was therefore not within any county. It is laid down in Sir H. Constable's Case (a), and broadly stated by Lord Cohe (6), that below the low water mark the admiral has the sole jurisdiction, and between the high and low water mark the common law and the admiral have divisum imperium. " When the sea flows," it is said, " and has pleni- tudinem maris, the admiral shall have jurisdiction of everything done on the water between the high water mark and low water mark, by the ordinary and natural course of the sea, and so it was adjudged, in the case of Lacey (c), that the felony committed on the sea ad plenitudinem maris, between the high water (a) 5 Rep. 1056. fc) 3 Inst. 48. 113, and authori- (6) 4 Inst. cap. 22. ties referred to in Coristable's Case. Case. CROWN CASES RESERVED. 77 mark and the low water mark by the ordinary and iS59. natural course of the sea the admiral should have cunhisgT jurisdiction of; and yet when the sea ebbs the land J^am'^ may belong to a subject, and everything done on the land when the sea is ebbed shall be tried at the common law, for it is then parcel of the county, and infra Corp.'' comitat.' So note that below the low water mark the admiral has the sole and absolute juris- diction ; between the high water mark and low water mark the common law and the admiral have divisum imperium interchangeably as is aforesaid, one super aquam and the other super terramP A fortiori then the place where this offence was committed is primd facie beyond the limits of any county, as it is found by the case that it was a place three quarters of a mile from land and a quarter of a mile from the laud which is left dry by the tide. It will be contended that the place where the ship was was infra fauces terrce. But that is not so. Lord Hale, in his treatise De Jure Maris (a), says: " That arm or branch of the sea which lies within the fauces terrce, where a man may reasonably discern between shore and shore, is, or at least may he, within the body of a county, and therefore within the juris- diction of the sheriff or coroner; 8 E. 2. Corone, 899." But Mr. East, in his Pleas of the Crown (6), prefers the more limited construction of Mr. Serjeant Hawlcins, who, he says, " considers the line more accurately confined by other authorities to such parts of the sea where a man, standing on the side of the land, may see what is done on the other ;" and of the latter opinion was Lord Coke; Admiralty Case(c). Here the locus in quo is not within the imaginary line, for an imaginary right line from Penarth Head to Lavernock Point would not include it. (a) Hale de Jure Maris (Har- (6) 2 East P. C. c. 17, s. 10. grave's Law Tracts), c. 4, p. 10. (c) 12 Eep. 79, 80. HAMS Case. 78 CROWN CASES RESERVED. 1859. Hill J. — Do you say that the Admiralty and CuwNiNG- the common law Courts had not concurrent jurisdic- tion? Giffard. — Not at common law. The recitals in the statute 15 Richard 2. c. 3. shew that the statute for the first time created a concurrent jurisdiction. In Regina v. Bruce {a) it was held that the Courts of common law have concurrent jurisdiction with the Admiralty in havens, creeks and rivers; but here the oflFence was committed on the high seas. Constables Case lays it down broadly that the jurisdiction in such a case is in the admiral ; and in the Admiralty Case Lord Coke says, " The sea within the jurisdic- tion of the admiral is described to be out of every county; for if the sea be within any county, then pais may come from thence, and the admiral hath jurisdiction where the commoji law cannot give remedy." The jurisdiction of the admiral was, in ancient time, called maritina \Anglice, and sometimes marina Anglice (b). It is said that the locus in quo is in the parish of Saint Mary's, Cardiff, which is within the county of Glamorgan; but even if it is so the question of parish is quite immaterial when you come to consider in what county a place is. A parish may be in two counties. There is no presumption of law that be- cause part of a parish is within a particular county, all the parish is in that county also. There is no presumption of law as to the boundary of a county. The county of Southampton includes the Isle of Wight, but it does not follow that the intervening sea is within the county of Southampton : The Attorney General v. Parmeter (c). Saint Martin' s-le- Grand is within the city of Westminster, but is entirely isolated, and the intervening space is within the city of London. (a) 2 Leach C. C. 1093. (6) Admiralty Case, 12 Eep. 80. (c) 10 Price, 378. BAMS Case. CROWN CASES RESERVED. 79 There are many similar instances of isolated parts of 1859. parishes where the intervening space is in a different ctinning- parish. But the place where the ship was was in fact upon the high seas, for the main sea or ocean is the same as the high seas. CocKBUKN C. J — The sea at this spot is an inland sea and land-locked, and not part of the high seas or the highway of nations as you put it. Giffard. — There is no authority for any such dis- tinction as an inland sea. A sea which has only one exit and entrance may nevertheless be the highway of nations, just as there may be a highway in a cul de sac ; Bateman v. Bluck (a). Stress of weather and the exigence of navigation may render it necessary for a vessel to come within two points from which an imaginary straight line would include it. British vessels on the American coast would be upon such an hypothesis often within the American territory. Further, what shape is to be given to an inland sea, semicircular, triangular, or what ? It would be im- possible to define it. In any sea out of cannon shot, universal user is presumed; The Twee Gebroeders (6). CoCKBUKN C. J. — PrimA facie, would not the sea between the outlying land and the county be in the county ? Giffard. — That is a fact to be proved, not to be presumed. No legal presumption can arise ; and in the recent case of Regina v. Musson (c) the Court of Queen's Bench would not presume that land between high and low water mark formed part of the con- tiguous parish. The same rule holds good in this case. (a) 18 Queen's Bench Kep. 870. (6) 3 Rob. Adm. Kep. 339. (c) 27 Law Jour. M. C. 100. 80 CRdWN CASES RESERVED. 1859. CocKBURN C. J. — You would not dispute that the CujsNiNG- place was within the jurisdiction of the admiral? Cas"'^ G^ff'^'^d- — No. The ship might be within the do- minion of England^ but was not shewn to be in any particular county ; neither was it shewn that it was in a bay or a creek, or within t^e fauces terrce^ unless that includes every spot that can be seen from the shore. The spot is within cannon shot of the shore, and the rule is terrce dominium jinitur uhi jinitur armo- rum vis. The Queen by her fleets and armies may have jurisdiction, but it is by her jurisdiction as a Sovereign prince commanding her fleets, and not by the coroners of the county. WiGHTMAN J. — The spot is between the county of Glamorgan and two islands which are in the parish of Cardiff which is in the county of Glamorgan. The Reform Act annexes the Flat Holms to Glamor- ganshire. Giffard. — That is merely for the purpose of electing members of parliament ; and further the section re- ferred to makes provision for the out lying parts of counties; that imports that there is a something not the county lying between. Williams J. — Where do you say the high seas begin ? Giffard. — Where the county ends. So Lord Hale says. Williams J. — What then is an arm or branch of the sea ? Giffard. — There is no definite legal meaning. Lord Hale only says that an arm or branch of the sea which lies within the fauces terrce " is, or at least may he, within the body of a county ;" that is, it is in the body of a county if proved to be so. The other question in this case is whether the pri- CHOWN CASES RESERVED. 81 soner Brown was properly convicted of a misde- 1859. meanor. This question raises a somewhat metaphy- cnm^mQ. sical difficulty. The three prisoners were indicted ^J^^'^ for feloniously wounding the prosecutor with intent to do him some grievous bodily harm, and the jury found two of them guilty of the felony charged, and found the other (Brown) guilty of the misdemeanor of maliciously and unlawfully wounding. The statute 14 & 15 Vict. c. 19. s. 5. provides that, upon the trial of an indictment for feloniously cutting and wounding, the jury may acquit of the felony and convict of un- lawfully wounding; but I submit that the offence charged being a joint offence, and one common intent being charged in the indictment, it was not competent for the jury to find the intent as to two of the pri- soners, and negative that intent as to the other (a). Bowen, for the Crown — The indictment is suffi- cient even if the place where the vessel was was not in the county of Glamorgan, but in the jurisdiction of the Admiralty. By section 2 of 7 & 8 Vict. c. 2., which was an Act for the more speedy trial of offences com- mitted on the high seas, it is enacted that the venue in the margin shall be the same as if the offence had been committed in the county where the trial is had ; and in Begina v. Jones (6) it was held that an indictment under that statute need not contain an averment that the offence was committed within the jurisdiction of the Admiralty. After that came the statute 14 & 15 Vict. c. 100. s. 23., which enacted that it shall not be (a) The section is as follows : — such indictment, but are not satis- "If upon the trial of any indict- fied that the defendant is guilty of ment for any felony, except murder the felony charged in such indict- or manslaughter, where the indict- ment, then, and in every sueh case, ment shall allege that the defendant the jury may acquit the defencjant did cut, stab or wound any person, of such felony, and find him guilty the jury shall be satisfied that the of unlawfully cutting, stabbing or defendant is guilty of the cutting, wounding." stabbing or wounding charged in (h) 1 Den. C. C. 101. VOL. I. G 82 CROWN CASES RESERVED. 1859. necessary to state any venue in the body of any CuiJinNG- indictment ; but the county, city, or other jurisdiction ham's named in the margin thereof shall be taken to be the venue for all the facts stated in the body of such indictment; provided that when a local description is required such local description shall be given in the body of the indictment. If the offence in question had taken place in the streets of Cardiff, the venue in the margin would have been sufficient. CocKBUEN C. J. — But in Regina v. Jones it was stated in the indictment that the offence was com- mitted on the high seas;, and that is not done here. Bowen.-T-T\iQ place in question was within the body of the county of Glamorgan. It was, within the fauces terrce. In 2 East P. C. 802, it is said : '^ Lord, Hah. says that before the latter end of the reign of Edward: 3 the Court of Queen's Bench not only had but exercised a concurrent jurisdiction with the Admiralty over felonies committed upon the narrow seas and on the coast, though on the high seas, being considered within the realm of England, though out of the bodies of counties; and the fact was presented and tried by men of the adjacent counties; but it is agreed on all hands that the admiral never had juris? diction in any river, oreek or port within, the body of a county." The place in question was not the high seas; and Lord Hale says in his treatise De Jure Maris {a) : " The narrow sea adjoining to the coast ©f England, ia part of the wast and demesnes and dominions of the Kipg of England,^ whether it, lie within the body of, any county or not. This is abundantly proved by that learned treatise of Master Selden called Mare Clausum." The question as to the line of demarcation between (a) Hargrave's Law Tracts, 10. Case. CROWN CASES RESERVED. 83 the county and the high seas is more a matter of fact i859. than law, and is determinable by local evidence. Cdnming- In Begina v. Bruce (a) it is said that the Judges ^"'s seemed to think that the common law had a con- current jurisdiction with the Admiralty in all havens, creeks and rivers in this realm ; and in the report of that case in LeacKs Crown Cases it is said that during the discussion of this point the construction of the statute 28 Hen. 8. c. 15. by Lord Hale in his Pleas of the Crown (6) was much preferred to the doctrine of Lord Coke in his Institutes (c). Lord Hale says: " That arm or branch of the sea which lies within the fauces terroe where a man may reasonably discern between shore and shore" is within the body of a county. Lord Coke, on the other hand, adopts a more limited definition, and considers the line to be confined to such parts of the sea " where a man standing on the side of the land may see what is done on the Other." CocKBUEN C. J. — Then you say that the place in question is within the definition of Lord Hale, and not within that of Lord Coke P Bowen. — Yes, and Lord Hale's definition was in Regina v. Bruce preferred to that of Lord Coke. CocKBUEN C. J. — You say if not within the fauces terrce it is within the terra itself ? Bowen. — I do. The Holms, which is in the county of Glarmrgan, was outside the place where the ship was. Moreover, the place in question is in fact within the limits of the port of Cardiff. Lord Hale, De For- tibus Maris (J), says : " A port of the sea includes more than the bare place where the ships unlade, and some- times extends many miles." " A creek is of two (a) 2 Leach. C. C. 1093; S. C. (c) 3 Inst. HI ; 4 Inst. 134. Russ. & By. 243. (d) Hargrave's Law Tracts, 45. (6) 2 Hale P. C. 16, 17. G 2 ham's Case. 84 CROWN CASES RESERVED. 1859. kinds, creets of the sea and creeks of ports," and at CciraiirG- page 48 he says, " The state of the ports and creeks hereof at this day stand thus :" then in the list given we find " Cardiff cum memhris" and in the list is " Penart\'^ the place in question. Further, by 9 & 10 Vict. c. 102. 5. 14., the Lords of the Treasury have power by warrant to appoint ports and quays and declare the limits and bounds thereof. They have by an order published in the London Gazette, January 4th, 1848, defined the limits of the port of Cardiff, and the place in question is within the limits of the port so defined. CocKBURN C. J The port of London extends to the counties of Essex and Kent. Bowen. — The fact that the Holms is treated as part of the parish of Saint Mary's, Cardiff, which parish is undoubtedly in the county of Glamorgan, is strong evidence that the part of the sea where the ofience was committed, and which lies between the Holms and the coast of Glamorgan, is also within the county. As to the other point: the prisoner Brown was rightly convicted of a misdemeanor. The jury had a discretion vested in them by the 14 & 15 Yict. c. 19. s. 5., and they properly exercised that discretion. Giffard, in reply. — As to the conviction of the prisoner Brown, I contend that the jury could not find dififerent intents on a count charging one common inieat; Regina w. Bird {a^. What authority is there for dividing a common intent, and saying, where a joint intent is charged, that thei*e were difi^erent degrees of intention ? Straight, officer of the Court (amic. cur.) mentioned the case of Regina v. Fenwick (&), tried at the Lincoln- shire Spring Assizes, 1844, in which several prisoners were jointly indicted under stat. 7 Wm. 4 & 1 Vict, c. 85. s. 11. for feloniously stabbing and wounding (a) 2 Den. C. C. 94. (6) 1 Cox C. C. 36. CROWN CASES RESERVED. 85 John Kidd^ with intent to do him some grievous 1859. bodily harm; and Gurney B., after consulting Tindal Cunning- C. J., told the jury that if, in their opinion, the q^^g! evidence was satisfactory as respected one of the pri- soners, and they thought that he was guilty, still they could not convict the other two of felony unless they concurred in the intent to do the prosecutor some grievous bodily harm; but if the jury were satisfied that the other two prisoners were present at the commission of the felony, and were guilty of some interference short of that, they might convict them of a common assault (a). WiGHTMAN J.— If two prisoners are charged with wounding a man with a certain intent, and by the evidence it appears that one had the intent and the other had not, may not the jury say so by their verdict ? Gifard. — Brottm'a sentence has nearly expired, and that point is not very material. As to the main point : it is said that because Penarth Head is in the Port of Cardiff it is therefore in the county of Glamorgan. The town of JSfeivport is included in that port, and yet that is in the county of Monmouth. Supposing there is evidence that the Holms is within the county, there is no evidence that the intermediate space is so ; no evidence of any act of ownership or do- minion in the intermediate space, and no presumption that it belongs to any county at all. If the owner of Penarth Head were the owner of the Holms and he claimed the intermediate land, would it be sufficient to start a primd facie case by shewing his ownership of Penarth Head and the Holms ? (a) See also the previous case several for feloniously cutting, &c., (1843) of Begina v. Archer and one might be found guilty of an Otter*, 2 Moo. C.C. 283. There the assault only, and others of the Judges, upon a case reserved, held felony in the same assault, that, on an indictment against 861 CROWN CASES RESERVED. 1859. The Judges retired for a short time, and then the CuNNHfG- judgment of the Court was delivered by BAM'a CocKBURN C. J. — In this case we are of opinion that the conviction is right. The only question with which it becomes necessary for us to deal is whether the part of the sea on which the vessel was at the time when the offence was committed forms part of the body of the county of Glamorgan ; and we are of opinion that it does. The sea in question is part of the Bristol Channel, both shores of which form part of England and Wales^ of the county of Somerset on the one side and the county of Glamorgan on the other. We are of opinion that, looking at the local situation of this sea, it must be taken to belong to the counties respectively by the shores of which it is bounded ; and the fact of the Holms, between which and the shore of the county of Glamorgan the place in question is situated, having always been treated as part of the parish of Cardiff and as part of the county of Gla- morgan, is a strong illustration of the principle on which we proceed, namely, that the whole of this inland sea between the counties of Somerset and Gla- morgan is to be considered as within the counties by the shores of which its several parts are respectively bounded. We are therefore of opinion that the place in question is within the body of the county of Gla- morgan. Conviction affirmed. \. CROWN CASES RESERVED. 87 REGINA V. SAMUEL EICE, TIMOTHY FOLEY, 1859. BENJAMAN JOHNSON and JOHN PREEDY. The following case was reserved and stated by the A count in Chairman of the Surrey Sessions. mentfrLed At the General Quarter Sessions of the Peace, "P°"/«2**^ ,,■,,.. 'of7&8 nolden by adjournment at Saint Mary, Newington, in Geo. 4. c. 29., and for the county of Surrey, on Monday the nine- pnTonere*''^ teenth day of July in the year of our Lord one thou- with stealing sand eight hundred and fifty-eight, Samuel Rice, being fixed Timothy Foley, Benjamin Johnson and John Preedy t°harfr*not were tried and convicted under an indictment con- alleging that . • • I p 11 • 1 1 • *"^ wharf taming the two following counts and a count laying was a "build- previous convictions. proved^lr' Surrey, ") The jurors for our lady the Queen upon ^^^ lead to wit. /their oath present that Samuel Rice, Timo- gutters of thy Foley, Benjamin Johnson and John Preedy on the the°proslcu" twenty-sixth day of June in the year of our Lord one tor^s wharf, ,, T-i, -, -, -, ^r. • ■, •!! 11 which sheds thousand eight hundred and fifty-eight, eight hundred were con- and fifty pounds weight of lead the property of Wil- f/ brick, liam Randall Wood then being fixed to a certain wharf timber and tiles. Held of the said William Randall Wood situated in the parish that it was ' of Wandsworth in the county of Surrey feloniously did auf|ed°aid steal take and carry away aarainst the form of the proved that •' •' ° .11 *"® prisoners statute in such case made and provided. had stolen 2nd count. And the jurors aforesaid upon their toaVuiltog." oath aforesaid do further present that the said Samuel Rice, Timothy Foley, Benjamin Johnson and John Preedy on the same day and year aforesaid eight hundred and fifty pounds weight of lead of the property of William Randall Wood feloniously did steal take and carry away against the form of the statute in such case made and provided. VOL. I. H 88 CROWN CASES RESERVED. 1859. From the evidence given on the trial of the pri- Rice's soners, it was proved that the lead stolen formed the Case. gutters of two sheds on the wharf of the prosecutor, which sheds were constructed of brick, timber and tiles, with lead gutters. At the trial the jury found a general verdict of guilty against all the prisoners upon both of the counts above set forth; and the Court reserved the following points for the consideration of the Justices of either bench and Barons of the Exchequer. First: Whether the allegation in the first count, that the lead was fixed to a wharf, is sufficient to shew that it was fixed to a building within the mean- ing of the statute 7 & 8 Geo. 4. c. 29. s. 44. And second : Could the prisoners be convicted on the second count of simple larceny, there being no evidence of the stealing of any other lead than that which had been affixed to the wharf ? The Court postponed judgment, and committed the said Samuel Bice, Timothy Foley, Benjamin Johnson and John Freedy to prison until the questions above men- tioned should have been considered and determined. This case was argued on 22nd Janwarn/ 1859, bfefore Lord Campbell C. J., Martin B., Crowder J., WiLLES J. and Watson B. Knapp appeared for the Crown, and Laxton for the prisoners. Laxton, for the prisoners. — This indictment is founded upon section 44 of statute 7 & 8 Geo. 4. c. 29., which enacts that " if any person shall steal, or rip, cut or break with intent to steal, any glass or wood work belonging to any building whatsoever, or any lead, iron, copper, brass or other metal, or any utensil or fixture, whether made of metal or other material, respectively fixed in or to any building whatsoever," every such oflfender shall be guilty of felony. 1st. CROWN CASES RESERVED. 89 The indictment is insufficient. The word "wharf" 1859. does not occur in the section on which this indict- rice's ment is framed. "Building" is the word used in ^^^^• the statute, and the word "wharf" does not necessarily imply a " building." Lord Campbell C. J — A wharf may he a building; and here it is proved to be so. Laxton — In criminal pleading, the strict construc- tion is to be adopted. The ordinary meaning of the term wharf is a plain flat surface bordering on a pier where goods may be landed ; and though it is true that in many cases, as at Liverpool and the docks of London, the wharfs are buildings rising to several stories from the water's edge, a wharf may be a floating wharf, and not a building at all ; and, if it were so, stealing lead from such a wharf would not be the oflfence contemplated by the statute. An indictment under a statute must clearly allege the statutable ofifence, and this indictment does not state that which is necessarily an offence under the statute. 2nd. There is a variance between the indictment and the proof. The indictment alleges that the lead was fixed to a wharf, and the proof is that it was fixed to a shed, which is not shewn by the evidence to be fixed to the wharf. Knapp, for the Crown, was not called upon. Lord Campbell C. J. — It must be taken as a fact in this case that the sheds, which are composed of brick, timber and tiles, are sheds on a wharf fixed to the soil. The sheds must be considered as part of the wharf. It is enough if the indictment alleges that the lead is fixed to that which may be a building and which is proved by the evidence to be one. The allegation that the lead was fixed to a wharf, without saying that the wharf is a building, imposes that burden of proof on the prosecutor; but there is H 2 Case. 90 CROWN CASES RESERVED. 1859. sufficient evidence here to shew that that which the Rice's lead was affixed to was in fact a building. The conviction therefore upon the first count is right. Ceowdeb J. — The evidence must be fairly taken to shew that the shed from which the lead was stolen was part and parcel of the wharf itself. WiLLES J. — The conviction could not have been supported unless it had been proved that the lead was fixed to such a wharf as is a building within the statute. The other learned Judges concurred. Conviction affirmed. '^^^- REGINA V. GEOEGE SMITH BETTS. The prisoner Xhe following case was reserved by the Chairman was a miller s „ , __ ° ri . foreman. It ot the Kesteven 'Vjuarter sessions. tcTseU flour''' LinconsUre,^ At the General Quarter Sessions of the to customers, Kesteven. J Peace of our Sovereign lady the Queen, sales in a holdeu at Boum, in and for the said parts and county, booMo'^give °" Monday the 28th day of June, 1858, before the the customers Right Honourable Sir John Trolbpe Baronet,Chairman, the entry, William Parker Esq., and others, justices of the peace thfcounter- ^^ °"^ ^^^^ ^^"^^ ^^® Queen, George Smith Betts was foil for his indicted for that he, on the 24th day oi May, 1858, at spection, and Spittkc/ate, feloniously did steal, take and carry away cash"book" ^ ' ^^ stones Weight of sharps of the goods and chattels his receipts of John Basker and another. Upon the trial it was fmmedlateiy^ proved that the prosecutors, John Basker and his upon their being made. Once a week there was a settlement of these books and accounts with his master. Upon a sale of some flour he received the money from the buyer and gave her a receipt with a check taken from a book belonging to his master, but not from the regular book ; and, having fraudulently omitted to make any entry of the transaction, appropriated the money which he so received. Held, that the prisoner could not be convicted of a larceny of the flour. CROWN CASES RESERVED. 91 brother, were millers in partnership, having a mill i859. at Spittlegate, and that the prisoner had for six months b^ts-s been in their employ at weekly wages as foreman at Case. the mill, superintending the business by selling for them, on credit or for ready money, flour, sharps, &c. ; and that the prisoner was furnished with a printed double check book (the check and counterfoil) and also with a cash book, the former for entries to contain the name of the purchaser, the date of pur- chase, the quantity purchased and the price charged, a copy of which it was his duty to deliver with the goods to the purchaser at the time of sale, retaining the counterfoil in the book for the inspection of his masters on settling his weekly account ; and the latter (the cash book) to contain an immediate entry and account of receipts and payments by the prisoner. A settlement of these books and accounts between master and servant took place every Saturday night, when the books were produced and examined and the balance paid over. It was also proved (the result of suspicions and inquiry) that Mary Moss, who kept a retail shop in Spitilegate, on Thursday the 20th of May, 1858, gave the prisoner an order for eight stones of sharps, which were delivered on the same day by John Cook, the waggoner in the employ of the prosecutors, without a check having been delivered at the same time, Cook having asked the prisoner for such check, and received for answer that he (the prisoner) would take the check himself and that Mrs. Moss would pay him ; and the price, eight shillings, was paid by Mrs. Moss to the prisoner on the following Saturday morn- ing. It was also proved that again, on Monday the 24th of May, Mrs. Moss gave the prisoner another order for twelve stones of sharps, which were delivered on the same day, and paid for on the following Satur- day by Mrs. Moss to the prisoner. Upon each occa- sion the sharps were weighed by the prisoner in the 92 CROWN CASES RESERVED. 1859. presence of John Cooh the waggoner, as servant in Betts's the employ of the prosecutors, placed in sacks belong- Case. jj^g |.Q ^jjg prosecutors, and on the first occasion con- veyed by Cook in prosecutor's waggon to Moss's house where the same were shot into a bin by him {Cook) ; and on the second occasion the prisoner accompanied Cook with the prosecutor's waggon to Moss's house, and took the sharps out of the waggon and shot them into the bin. The prisoner delivered checks to Moss in the course of each day of the delivery of the goods, and on payment being made gave a receipt at the foot of the check; but the checks so delivered, and although belonging to the prosecutors, and pre- cisely similar, were not taken from the regular check book in use. There was not any entry, either in the check book or in the cash book, of the sale of the sharps or payment of the money. The first sale and pay- ment ought to have appeared in the accounts delivered by the prisoner on Saturday the 22nd May, and the second sale and payment in the accounts delivered by the prisoner on Saturday the 29th of May. For steal- ing these eight stones and twelve stones, making together the twenty stones of sharps, the prisoner was apprehended, committed, tried and convicted. Upon the verdict of guilty being pronounced, the prisoner's counsel asked the justices to grant a case for the Court of Criminal Appeal on the point whether the prisoner was, upon the facts proved, legally guilty of larceny, and the indictment sustainable. Whereupon the Court granted the application and postponed judgment on the conviction, and discharged the prisoner on recog- nizance of bail to appear and receive judgment. The opinion of the Court hereon is therefore respectfully requested. This case was considered by Pollock C. B., Wight- man J., Williams J., Byles J. and Hill J. CROWN CASES RESERVED. 93 No counsel appeared. 1859. The judgment of the Court was given, on the 5th b^tts's oi February, 1859, by ^'''^• Pollock C. B. — In this case the prisoner, instead of being indicted for embezzling the money received by him for the goods delivered to a customer upon that customer's orders, was indicted for stealing the goods. He neglected to make the entries of tbe sale in the books, which it was his duty to make, and, by omitting to give his master credit for the proceeds of the sale, he concealed the sale from his master. The Court are of opinion that as the goods were actually sold, though the prisoner appropriated the money which he received for them, he could not be indicted for stealing the goods. As between the buyer and the prisoner's master there was an actual sale; and what the prisoner did which was objectionable was, not the selling the goods, but appropriating the money instead of making the proper entries and handing it over to his master ; and the Court are of opinion that in so doing he was not guilty of stealing the goods ; although he was no doubt guilty of embezzling the price. Conviction quashed. EEGINA V. WILLIAM EOWE. 1859. The following case was reserved by the Chairman The prisoner of the Glamorganshire Quarter Sessions. of sSrHr*^ iron, the property of the Company of the proprietors of the Glamorganshire Canal Navigation. It appeared that while the canal was in process of being cleaned, the prisoner (who was not in the employ of the Canal Company, but a stranger,) took away from the bed of the canal the iron in questioit~"It also appeared that iron found by the Company during such cleansing would, if the owner could be found, be returned to him, but otherwise would be kept by the Company. Held, that the Canal Company had sufficitent property in and possession of the iron to maintain an indictment for larceny, and that the conviction was right. 94 CROWN CASES RESERVED. Case. 1859. At the Glamorganshire Midsummer Quarter Sessions Rowb's 1858, William Rowe was indicted for stealing 16 cwt. of iron of the goods and chattels of The Company of Proprietors of the Glamorganshire Canal Navigation. It appeared by the evidence that the iron had been taken from the canal by the prisoner, who was not in the employ of the Canal Company, while it was in process of being cleaned. The manager of the canal stated that, if the property found on such occasions in the canal can be identified, it is returned to the owner. If it cannot, it is kept by the Company. It was objected that, as the Canal Company are not carriers, but only find a road for the conveyance of goods by private owners, the property was not properly laid as that of the Canal Company. The prisoner was convicted, and sentenced to two calendar months imprisonment in the House of Correction at Cardiff, but was released on bail (a). This case was considered, on 22nd November, 1858, by Pollock C. B., Wightman J., Williams J., Channell B., Byles J. and Hill J. No counsel appeared. Cur. adv. vult. On 5th February, 1859, the judgment of the Court was given by Pollock C. B — The Judges who have considered this case are unanimously of opinion that the con- viction should be affirmed. The case finds that some iron had been stolen by the prisoner from the canal while the canal was in process of cleaning, and whUe the water was out. The prisoner was not in the I employ of the Canal Company, but a stranger; and/ (a) Armory v. Delamire, 1 Stra. 505 ; S. C. 1 Smith's L. C. 151. CROWN CASES RESERVED. 95 the property of the Company in the iron before it was 1859. taken away by the prisoner was of the same nature "r^wT" as that which a landlord has in goods left behind by a Case. guest. Property so left is in the possession of the landlord for the purpose of delivering it up to the true owner; and he has sufficient possession to main- tain an indictment for larceny. Conviction affirmed. REGINA V. WILLIAM BEERY. 1859. effv€ The following case was reseffved and stated by The prisoner M. B. Armstrong, Esq., Q. C, the Recorder of Man- Tf stealing ^ Chester. articles of furniture the William Berry was indicted at the General Sessions property of for the city of Manchester, held at Manchester on the value' of 5/. 2nd day of August, 1858, and was found guilty of ^ifdweiTing" stealing one bed, two boxes, four pairs of blankets, Jio^se at six sheets, two dresses and two carpets, the property it appeared oi Robert Elliott, of the value of 5?. and more, in his t^atthepri- ' ' _ soner was a dwelling-house. On the 5th of June, and for six lodger in the months previous, the prisoner lodged at the house of prosecutor at the prosecutor, and knew that the prosecutor would ^"''^i^^*^-' Boner pro- cured a horse and cart, and he and the prosecutor's wife put the articles in question in the cart and had them conveyed to the railway station, from whence the prisoner, the prosecutor's wife and her three children, left by train for Leeds. A fortnight afterwards the prisoner and the prosecutor's wife were found living together in Leeds in a house which she had taken in her own name, and in the house were all the articles so taken from the prosecutor's house at Manchester, On the trial the prosecutor's wife was called as a witness on behalf of the prisoner, and swore that they had not gone away for the purpose of carrying on an adulterous intercourse, and never had committed adultery together. The Judge directed the jury, that if they were satisfied that, when the prisoner and prosecutor's wife so took the property, they went away together for the purpose of having adulterous intercourse, and had afterwards effected that criminal pur- pose, they ought to find the prisoner guilty ; but, that, if they believed the evidence of the wife, the prisoner was entitled to an acquittal. Held, that the direction was right. Case. 96 CROWN CASES RESERVED. 1859. have to go out very early that morning. On the 4th BuRfti's of June prisoner engaged a porter to be near the prosecutor's house at 7 o'clock the next morning with his cart ; he went there : the prisoner came to him and took him to the door of the prosecutor's house, where he drew up his cart. The prisoner and the wife of the prosecutor were then together in the house, and were jointly engaged in packing up the articles men- tioned in the indictment in boxes; and, when so packed up, the prisoner brought the boxes to the door and the carter assisted him to put them upon the cart. They were then driven to the railway station, prisoner, prosecutor's wife and her three children accompanying them, and all left by the train for Leeds. A fortnight after this the prisoner and the prosecutor's wife were found living together in a house in Leeds, which she had taken in her own name. They were both in the house when the prosecutor and an officer went there, and all the property so taken from the prosecutor's house at Manchester was found there. The prosecutor's wife was called on the part of the prisoner, and swore that they had not gone away for the purpose of carry- ing on an a,dulterous intercourse, and in fact never had committed adultery together. I told the jury that if they were satisfied that the prisoner and the prosecutor's wife, when they so took the property, went away together for the purpose of having adulterous intercourse, and had afterwards eflfected that criminal purpose, they ought to find the prisoner guilty; but that, if they believed the wife that they did not go away with any such criminal purpose, and had never committed adultery together at all, the prisoner would be entitled to his acquittal. The jury found him guilty. The question for the opinion of the Court of Criminal Appeal is, whether my direction was right. CROWN CASES RESERVED. 97 Sentence was deferred, and the prisoner admitted 1859. to bail. M, B. Armstrong^ bebey's Recorder of Manchester. ^*^^- This case was considered, on 22nd November, 1858, by Pollock C. B. , Wightmam J., Williams J., Byles J. and Hill J. No counsel appeared. Cur. adv. vult. On 5th February, 1859, the judgment of the Court was given by Pollock C. B. — This conviction will be affirmed. Conviction affirmed. REGINA V. ALFRED SKEEN and ARCHIBALD 1859. FREEMAN. " The following case was reserved by Pollock C. B. Thedefend- Alfred Sheen and Archibald Freeman were tried fndLted^for having fraudulently transferred for their own benefit a bill of lading intrusted to them as brokers. The indictment was framed on section 6 of 5 & 6 Vict. c. 39., which contains a proviso that no agent shall be liable to be convicted by any evidence in respect of any act done by him if he shall at any time previous to his being indicted for such offence have disclosed the same in any examination before any Commissioner of bankruptcy. The defendants were charged with the offence in question before a magistrate and committed for trial ; the depositions which were then taken containing ample evidence to support the charge. The defendants had previously been adjudged bankrupts ; and subsequently to their committal as aforesaid, but before indictment, they were taken by their creditors before a Commissioner in bankruptcy, and then made a statement which was substantially an admission of the same facts as were stated by the witnesses in the depositions. On the trial, the examinations of the defendants in bankruptcy were offered by them as a defence, it being contended that, ^Imi;: having disclosed the act before a Commissioner •-■ previous to indictment, they were protected by the proviso, and were not liable to be convicted. Held, that the evidence of a disclosure was admissible under the plea of not guilty. Held, by the majority of the Court (Lord Campbell C. J., Pollock. C. B., Wight- man J., Mabtin B., Willes J., Beamwell B., Watson B., Channbll B. and Hlll J.), that, as the prisoners only stated before the Commissioner that which had been previously known and previously proved by evidence before the magistrate, they had not made a disclosure within the meaning of the proviso, and consequently were not entitled to its protection. Held, by the minority of the Cpurt (Cockbdkn C. J., Williams J., Cbompton J., Cbowdeb J. and Btles J.), that as the statement was made before indictment, on a compulsory examination before a Commissioner in bankruptcy instituted bona flde by the creditors, it was a disclosure within the meaning of the proviso, to the protection of which the defendants were therefore entitled. 98 CROWN CASES RESERVED. Case. ^859. before me at the October Sessions, 1858, holden for Skeen's the jurisdiction of the Central Criminal Court, upon an indictment which charged them that, having been entrusted as brokers and agents with a bill of lading of a cargo of timber, they had, without the authority of their principals and in violation of good faith, fraudulently transferred and delivered the bill of lading for their own benefit. The indictment was framed upon the statute 5 & 6 Vict. G. 39., which, in the section which creates the offence, contains the following proviso : " Provided that no agent shall be liable to be convicted by any evidence whatsoever, in respect of any act done by him, if he shall at any time previously to his being indicted for such offence have disclosed the same in any examination or deposition before any Commis- sioner of bankruptcy." The prisoners pleaded Not guilty, and, at the close of the evidence for the Crown, their counsel tendered the examination in writing of each of them taken before the Commissioner under a fiat duly issued. The counsel for the Crown objected that under the plea of Not guilty those examinations were not ad- missible. I admitted the evidence, but reserved the points arising upon it, and the examinations were put in and read, of which copies accompany the case ; and also copies of the depositions before the magistrate, upon which the prisoners were committed for trial, and a copy of the evidence before me, accompany this case. The prisoners were committed for trial on the 13th of July. The examination of the prisoners before the Commissioner of bankruptcy took place on 26th of July, subsequent to their committal but before the indictment was preferred. I left the facts to the jury, excluding from their consideration the examination before the Commissioner, the effect of CROWN CASES RESERVED. 99 which I thought was matter of law, and reserved it accordingly. The jury found the prisoners Guilty; and I have to request the opinion of the Court of Criminal Appeal : — First, Whether the written examinations of the prisoners were admissible under the plea of Not guilty. Secondly, Whether those examinations were such a disclosure of the offence of the prisoners, within the meaning of the proviso above quoted, as under the circumstances of the case rendered them not liable to be convicted. Judgment is respited on the said indictment. The prisoners have been admitted to bail (a). Fked. Pollock. 1859. Skeen's Case. (a) The following documents accompanied the case, pursuant to the Order of the Court on the first hearing. It seems to have been admitted, by the learned counsel for the prisoners, that their examination before the Commis- sioner in bankruptcy was an ad- mission by them of the same facts as were stated by the witnesses in the depositions taken before the magistrate. Depositions before the magistrates upon which the prisoners were committed for trial, and which were duly taken on oath the 13th day of July, 1858, before Alderman Sir Peter Laurie, in the presence and hearing of the prisoners Alfred Skeen and Archibald Freeman, who were charged for that James Ca- van and others, his partners, did, on the 24th day of May last, in the said city, intrust to the said Alfred Sheen and Archibald Freeman, then and there being agents of the said James Cavan and others, his part- ners, a certain warrant for the delivery and transfer of goods, to wit, 153 logs of greenheart timber, the property and goods of the said James Cavan and others, his part- ners, and for that the said Alfred Sheen aiid Archibald Freeman, being such agents as aforesaid, did after- wards in the said city, contrary to and without the authority of the said James Cavan and others, his partners, for their own benefit and in violation of good faith, unlaw- fully make a deposit of the said warrant with Sir Robert Walter Carden, Knight, and others, ban- kers, as and by way of a pledge, lien, and security for certain large sums of money advanced by the said Sir Robert Walter Carden, Knight, and others, bankers, to them the said Alfred Skeen and Archibald Freeman, against the statute, &c. Edward Ballard on his oath saith as follows : — I live at 38, 100 1859. Skeen's Case. CEOWN CASES UESERVED. This case came on to be argued, on the 25th No- vember, 1858, before Pollock C. B., Wightman J., Williams J., Byles J. and Hill J. St. PauTs Terrace, Canonhury. I am shipping clerk to James Cavan and others, of 29, Finsbury Circus, West India merchants. I attend to the shipping department, and have the authority to indorse, by pro- curation, bills of lading. In the month of April last we had advice of a consignment of timber by a ship called The Glide. The de- fendants carried on the business of timber brokers, in Broad Street; they were the brokers employed by our firm to sell timber. On receiv- ing advice I gave the defendants a specification of the timber to sell for arrival if the proper price could be obtained. I left the specifi- cation in the defendants' office with a clerk, and I afterwards saw both the defendants, and had a conver- sation with them on the subject of the timber. They both said that they had not obtained a sufficient price to induce them to sell the timber. On the 24th May last a clerk from the defendants, whom. I believe to be Joshua Freemajt, now present, called on me ; he ap- plied on the part of the defendants for the bill of lading, and in con- sequence of what he represented to me I gave him the bill of lading relating to 153 logs of greenheart timber by The Glide. The bill of lading was not indorsed when I gave it him ; he went away and took it with him. In about half an hour afterwards he brought back the bill of lading and he made a further representation to me, and in consequence of what he then said I indorsed the bill of lading and gave it him. I heard no more of this matter till the 28th of June, and in consequence of information I received about the bill of lading I went to the dock house the fol- lowing day. The bill of lading produced by Mr. Hay ward is the one I gave to the defendants' clerk; it is now indorsed "Deliver to Mr. John Scott or order, Sheen and Freeman." Mr. John Scott is the security clerk of the City Bank. The defendants had no lien on the bill of lading, they had not made any advance to us upon it. Joshua Charles Freeman on his oath saith as follows : — I live at 5, Bath Villas, De Beauvoir Road, Kingsland. I am clerk to the de- fendants. I am 19 years of age. I am the nephew of the defendant Freeman. I went to the counting house of Messrs. Cavan Sp Co., and saw the last witness Mr. Ballard, and obtained from him the bill of lading produced. I was requested by my employers to apply for it. Mr. Freeman requested me. The City Bank at that time held secu- rities of our own for advances made to my employers. Some of those securities refer to goods brought by the ship Laura Campbell. It became necessary to deliver some of those goods. It was mentioned to Mr. Freeman that there was a necessity to deliver those goods. About the time, either before or after I applied for the bill of lading, there was a conversation as to the necessity of delivering the goods brought by The Laura Campbell. Mr. Freeman desired me to apply for that bill of lading* I think it was on the day I first made appli- cation for the bill of lading. Mr. Skeen was not then present when CROWN CASES RESERVED. 101 Ballantine Serjt. (with him B. C. Rohinson) appeared for Skeen, and Hardinge Giffard appeared for Free- No counsel appeared for the Crown. 1859. man. that direction was given to me. I had had no conversation with Mr. Sheen about the bill of lading up to the time I had orders from Mr. Freeman to apply for it. This con- versation took place at Mr. Free- jwara's house ; he was then at home ill. . When Mr. Freeman desired me to get the bill of lading he did not give me any specific directions what to do with it. I obtained the bin of lading, on my first applica- tion, from Mr. Ballard, it was at that time unindorsed. When I first got the bill of lading I took it to the defendants' counting house. My uncle was then at home. I did not see Mr. Sheen between the time I returned with the bill of lading to the counting house and the time I went the second time for it. I went a second time and ob- tained an indorsement on the bill of lading. I did this by no parti- cular directions that I remember. When I took the bill of lading to the counting house I then observed it was unindorsed, and knowing that the bill of lading was totally useless without being indorsed I took it back. It was necessary to have the bill of lading indorsed preparatory to its being lodged at the dock house. It is not neces- sary for the purpose of obtaining a purchaser for the timber that the bill of lading should be indorsed. I obtained the indorsement from Mr. Ballard, and having obtained it I put it into our cash box. Nei- ther Mr. Sheen nor Mr. Freeman were present when I put it into the cash box. The next day I took the bill of lading to my uncle. I went to my uncle on other business, Skeen's Case. and he desired me to bring the bill of lading. I went back and got it, and Mr. Freeman wrote the in- dorsement on the following morn- ing. Two days after I got it. When I left it with him in the evening, I merely said, " Here is the bill of lading. The following morning the defendant i^reeman indorsed the bill of lading. Freeman merely wrote on the back of the bill of lading " Sheen Sf Freeman" The words " Deliver to Mr. John Scott or order" were not on the bill of lading. At the time Freeman indorsed the bill of lading, he stated that it was a very awkward afiair about The Laura Campbell, as the people were cla- morous for the delivery order of The Laura Campbell. He then said. — " Suppose I lodge this bill of lading temporarily for a few days at the City Bank, in lieu of the documents relating to the goods by TTie Laura Campbell, and he said I expect to be in receipt of funds to replace it. I had told Mr. Free- man that the people had been cla- morous for their orders by The Laura Campbell ; this was about a week before Mr. Freeman wrote a letter to Mr. White, the manager of the City Banh, and inclosed the bill of lading in the letter ; it is the letter produced ; the following is a copy of it. " OaMey Terrace, '25th " May, 1858. Dear Sir. Will you " be kind enough to give the bearer " the warrant for the Cedar pr. " Laura Campbell, and hold the " enclosed bill of lading as security " instead, till I see you — it is worth "about 1,800Z. at the least. When "I get to the City, which I hoped " to have done to-day, I shall do 102 CROWN CASES RESERVED. 1859. Skeen's Case. Pollock C. B, expressed a strong opinion that counsel ought to have been instructed on behalf of the Crown (a). " as I said, immediately see Messrs. " O. G. Sf Co., with a view of re- " moving all the loans from you. " Yours faithfully. A. Freeman. A. J. White, Esq." O. G. Sf Co. mentioned in the letter, refer to Overend Sf Gumey. I took the letter inclosing the bill of lading to the City Bank on the 26th of May. I should say the letter is mis-dated, it is dated the 25th of May ; it was the 26th of May I saw Mr. White, and gave him the letter, which he opened in my pre- sence. Mr. White kept the bill of lading. Atigustus Jackson White, on his oath, saith as follows: — I live at 16, Boupell Park, Streatham; I am manager of the City Bank. The defendants had an account at our house. Our bank made them ad- vances to nearly 10,000Z. We had dock warrants and other securities against the advances ; the value of the dock warrants, including the bill of lading in question, was about 5000/., at the time the defendants stopped payment. Among the dock warrants we had some relating to The Laura Camphell. One of the warrants relating to The \LauTa Campbell referred to "264 j;logs of cedar. That warrant was lodged some time before the 26th of May. I think that warrant was lodged with us about the latter end of last year. I knew the defendants as timber brokers. I have no reason to believe they carried on any other business. The last witness brought me the letter produced I think on the 26th oi May last. The bill of lading produced was inclosed in the letter. I believe the words " De- liver to Mr. John Scott or order" on the back of the bill of lading to be in the handwriting of Mr. Scott, our security clerk. It was not written at the time I received the bill of lading from the last witness. I requested the defendants' clerk to call again in an hour. I am not sure the clerk called again ; but I saw Mr. Sheen in the afternoon of the same day. I had kept the bill of lading. I told Mr. Sk^en that we could not part with the cedars by The Laura Campbell unless they would undertake to hand the pro- ceeds to us, and then I should have no objection to take this bill of lading as a collateral security for our so doing. He pressed me to comply with his "request, but I told him I could not deliver any of the cedar on any other terms : he, Mr. Sheen, merely offered the bill of lading as security in the usual way. I do not remember that Mr. Skeen said the bill of lading would be sure to be redeemed. I don't re- member Mr. Skeen saying that he was veryraverse to the transaction, for the bill of lading did not belong to them. After some discussion this letter was prepared by Mr" Scott, and Mi-.'^Sheen took it away (a) The reason for not instruct- ing counsel did not appear. The costs incurred by the prosecutor would have been allowed as part of the costs of the prosecution ; see Regiruxl^. Lewis, Dears.^ & Bell, C. C. 326. CROWN CASES RESERVED. 103 Ballantine Serjt. commenced his argument on behalf of the prisoner Skeen ; but the Court intimated that, considering the importance of the question, it ought 1859. Skeen's Case. with him and the bill of lading also. He said he should not like to sign it until he had considered it, and he would take away the letter, and he did take the letter away and the bill of lading also. He did not say he did not like the transaction, the bill was not theirs. Bui Mx. Sheen said to me, after the failure, that he was very sorry that the bill of lading was ever lodged with us. Mr. Skeen brought the letter pro- duced back, the following morning, accompanied by Mr. Freeman's nephew. The letter is signed, I believe, by Mr. Skeen. It is as follows :— " 75, Old Broad Street. ^'London, 26th May, 1858. A.J. " White, Esq., Manager, City Bank. " Sir, You hold a warrant for 264 " logs of Cedar, ex Laura Campbell, 155 s. & r. "of this we have sold **« 155 J. Cd. " logs and require to deliver them. " We shall therefore be obliged by " your indorsing the warrant for 155 s. & F. "delivery to us of the 5*2 ■' _ 155 J. Cd. " logs and ordering a new warrant " to be made out for the remainder " of the parcel in name of your " security clerk. The proceeds of 155 s. & F. "^^^^^ l55*j*Cd. logs> say 1,277Z., " we engage to hand over to you " within one month from this date ; " and in consideration of your so " doing, we hand you herewith, as " additional collateral security, bill "of lading for 153 logs greenheart " pr. Olide @ Demerara, which " you will please lodge at the Dock " office, and take out a prime war- " rant in the name of your clerk, " Mr. Scott. We remain. Sir, Your VOL. I. I " obedient Servants, Sheen §/■ Free- " man. The present value of the " 153 logs, greenheart ' pr. Glide,' " referred to above, say 195 loads "at9Z. £1755 " Less freight charges 780 " Is £975" The bill of lading was lodged at the Docks the same day. Cross-examined for Freeman and Skeen by Mr. Depree. To the best of my knowledge Mr. Skeen took away the bill of lading with the letter; he left the bill of lading with us, asking us to deliver up the cedars by The Laura Campbell. In the first instance the bill of lading came to us in a letter from Mr. Freeman. I am not quite cer- tain that I gave back the bill of lading with the letter, but my im- pression is that I did. I will not undertake to swear that I did de- liver back the bill of lading ; my impression is that I did, but I am not quite sure about that. I think I had not seen Mr. Skeen on the subject of securities previously to this. Mr. Skeen called on us in consequence of our requiring this letter. Ee-examined. This conversation took place in my room at the City Bank. I think our chief clerk was present at the time. I think the object of Mr. Skeen calling was for an answer to the application. Elwei Remnant Charles Hay- ward on his oath saith as fol- lows. I live at No. 2, Leo Cottage, Cowley Road, North Brixton. I am clerk in the East and West India Dock Home, Billiter Square. I produce the bill of lading re- 104 GROWN CASES RESERVED. 1859. Skeen's Case. to be heard by the fifteen Judges, and the hearing of the case was postponed accordingly. The Court also ordered that the depositions of the several witnesses ferring to 153 logs of greenheart timber by the ship Glide, from Demerara. It was lodged with the present indorsement on it on the 26th of ilfay last. The prisoners were duly ad- dressed and cautioned by the ma- gistrate, whereupon the said Alfred Sheen said as follows : " I wish this paper read." The following is a copy of the paper : " I did not deposit the bill of lading with the City Bank. Nor did I authorize any person to de- posit it. Nor was I aware it had been deposited till some time after the City Bank had got it in their possession. Whatever I did after- wards was done solely with the object of restoring it to Messrs. Cavan, Brothers. Alfred Skeen, July 13th, 1858." This paper having been read, the said Alfred Skeen further said : I wish to add Mr. White is in error in stating that the bill of lading was sent with the letter. I had never seen that bill of lading any where till five minutes ago. T refer to the letter which Mr. White says the bill of lading was sent with to the oflRce. I never saw that bill of lading till I saw it here to-day. I never saw the bill of lading at all. Mr. White did not give me back the bill of lading when he gave me the letter of the 26th of May. The said Archibald Freeman said as follows : — I leave it to my soli- citor. The following are the examina- tions in bankruptcy taken, on 26th Judy, 1858, before Mr. Commis- sioner Govlbourn. In the matter ot Alfred Skeen and Archibald Freeman, trading under the style or firm of Sheen and Free- man, of No. 75, Old Broad Street, in the City of London, timber brokers, dealers and chapmen, against whom a petition for adjudication of bank- ruptcy was filed on the 6th day of Jidy, 1858. The prisoners attended in pursuance of a summons or war- rant requiring them personally to be and appear before the said com- missioner, the commissioner acting in the prosecution of the said peti- tion, on Monday the said 26th day of Jidy, 1858, to be examined by virtue of the said petition and the statute in such case made and pro- vided. Archibald Freeman, the above named, on his solemn declaration, saith : — I have been in partnership with the above named Alfred Skeen about seven years as timber brokers for the purchase and sale of timber on commission. The City Bank were our bankers for the last two years. Our business with that bank was of the ordinary description. They discounted our bills, and we drew checks upon them in the ordinary way ; we had no other account with the bank than a current account ; we were in the habit of lodging dock warrants with our bankers as security for money advanced. 1 think this practice extended over the whole time of our keeping the account. Our books do not shew what securities we lodged from CROWN CASES RESERVED. 105 taken before the magistrate on the charge being made, and also the examination of the defendants in the Court of Bankruptcy, should accompany the case. 1859. Skeen's Case. time to time with the bank. They gave us no receipt for the securities so lodged, and there is no record that I am aware of to shew what securities were so lodged from time to time. The bank was generally in advance to us. Upon each occasion when we made deposits with thp bank there was an understanding between us and the bankers as to the amount to be placed to our credit, and this amount was calculated upon the estimated amount of the securities we lodged. Our account was not made up at the bank except half yearly, viz., on the last day of June and the last day of December in each year. It appears from our pass book that, on the last day of June, 1857, there was a. balance of 4532. 15«. Id. to our credit. It would be impossible for me to state now what securities the bank then held from us, nor how much the bank had then advanced upon the securities deposited. On each occasion when we deposited securi- ties, the amount at which the secu- rities were valued was placed to our credit, as so much cash. On the morning of the 14th of August, 1857, the balance to our credit at the City was about 23162., but I do not know what securities the bank held to cover that sum. On that day I lodged with the bank the dock warrants for the cedar by The Laura Campbell, consisting of 295 logs. We estimated the value for the purposes of loan at 2000Z., and the bank on that day gave us credit for 20002. Subsequently to this transaction we made many other deposits with the bankers from time to time, lodging with them various securi- ties, and taking up from time to time the securities previously lodged. The bank kept a loan account with us, but I have never seen this account, and they have not furnished us with any copy. We kept a loan account in our ledger, but it does not distinguish between the loans we had from the bank and other parties, though upon reference to other books, such as the journal and cash book, the amounts received from the bank on any particular day can be ascer- tained ; but, as already stated, there was no specification of the securities lodged. The dock warrant of The Laura Campbell, on the 14th August, 1857, when it was lodged by us with the City Bank, was the pro- perty of Mr. Edwin Sheen, a brother of my partner. The timber represented by that dock warrant was imported by Barnard, Hall Sj- Co., of Liverpool, and they forwarded us the bill of lading, with instructions for sale, at the end of Jidy or the beginning oi August, 1857. We sold the cedar to Edwin Sheen on the 25th August, 1857, for 23212. Is. 6<2, taking his accep- tances at six months in payment of the amount. We negotiated these acceptances in the ordinary course of business, but we did not hand the warrants for the cedar to Mr. Sheen, but held them as security. i2 106 CROWN CASES RESERVED. 1859. Skeen's Case. The case was argued accordingly on 22nd January, 1859, before Lord Campbell C. J., Cockburn C. J., Pollock C. B., Wightman J., Williams J., Martin B., On the 8th of September, by the direction of Edwin Sheen, we sold at a public sale 19 of the logs of cedar included in the 295 already referred to. I cannot state who the purchaser or purchasers were. We were ourselves the sellers. About the same time there were 8 logs delivered to Mr. Sheen for his own private use, and I went to the bank and obtained the delivery order for 27 logs, and got a new warrant for the remainder, namely, 268 logs. That fresh warrant was lodged at the City Banh immediately after it was drawn up, but we have no record of the particular day on which it was so lodged. There was no further transaction in respect of the cedar until the 30th March, 1858, when we sold the 268 logs for Mr. Sheen on his account and by his direction. The sale was by private contract to Mr. Charles Hoar. Sheen's acceptances were due before the last mentioned date, but they had been retired by us and renewed. Mr. ffoar purchased the 268 logs for 1868Z. 12s. 3d., for which we took his acceptances at four months, which were discounted with Overend, Oumey Sf Co. on the 8th June, 1858, and the amount of the discount went to our credit. The warrant remained with the bank" until the 12th of May ; on that day we sold 156 logs of the cedar on account and by the direc- tion of Mr. Hoar, I know from our books, and from the informa- tion of others, that we received the dock warrant from the City Banh, but I did not myself personally attend to any business from about the 20th of April to the end of June. I was not at home when Messrs. Cavan, Brothers Sf Co. sent us a specification of the timber on its way from Demerara by the ship Olide, I was then at Liverpool, and Mr. Ballard, who represents Messrs. Cavan, Brothers, having written us the note, which I now produce, and which is marked with the letter A (a), that note was forwarded to me at Liverpool, and received by me on or about the 23rd of April. The ship did not arrive until the month of May, and I was then at home ill. After the ship arrived, my nephew, Mr. Joshva Freeman, ap- plied for the bill of lading, but I am unable to state upon what day. My nephew, in calling on me at my private house, said " The Glide is arrived, shall I call for the bill of lading ?" or words to that effect, and I said, " yes." I gave no directions what was to be done with the bill of lading. On or about the 25th of May my nephew mentioned that the buyers of the logs per The Laura Campbell y^ere in want of the goods, but I do not remember anything further passing between him and me on that day. On the same day that my nephew brought me the bill of lading which had been received from Cavan, Brothers, I enclosed it in a private note to Mr. White, the manager of the City Banh. (a) The note referred to was not set out in the case. CROWN CASES RESERVED. 107 CrOMPTON J., CrOWDBR J., WiLLES J., Bramwell B,, Watson B., Channell B., Byles J. and Hill J. No counsel appeared for the Crown. 1859. Skehn's Case. This note was written in the parlour of my private house, and I believe in the presence of my nephew. I kept no copy of it. I believe I told Mr. White in this note that he would oblige me by handing my nephew the warrant for the 264 logs of cedar by The Laura Campbell, and by his holding the bill of lading per Glide for three or four days until he saw me. I was not able to see Mr. White for seve- ral days, but I understood before I did see him that he had delivered the warrant for the logs of cedar to my nephew. I had nothing further to do with the transaction in any way ; but my nephew told me that Mr. White had declined to deliver the warrant for the logs of cedar on my private note, and required the order of the firm, which had been sent. I have no recollection of ever having signed any agreement with the bank, and I do not remember any instance of any payment in satis- faction of a specific loan. I am unable to give any explanation of the entries in my bankers' pass book debiting agreement stamps. I do not believe that the 2000i. advanced by the bank on the war- rant for the 264 logs by The Laura Camphell was specifically paid ofi"; but, after that advance was made, sums to a much larger amount were credited to us by the bank. It appears by my bankers' book, under date 28th November, 1857, that there was a loan of 11,950Z. by the bank, and that I was credited on that day with the same sum of 1I,950Z. as repaid. I am totally unable myself to explain these entries of the trans- action to which they refer ; but I have no doubt our clerk, Mr. Mend- ham, can explain it. Alfred Sheen, the above named bankrupt, on his solemn declaration, saith : — I have been in partnership for about seven years with the above named Archibald Freeman. I took the out part of the busi- ness at the docks, and left the financial and book keeping depart- ment to my partner. I was never in the habit of transacting any business with our bankers. In the month of May last my partner was absent from business at his home. I did not know at that time what securities were deposited with the City Bank. Two or three days before the 26th May our book keeper men- tioned to me that he thought it would be advisable I should go over to the bank and see Mr. White, the manager, and see how our ac- count stood with the bank. I began at this time, for the first time, to doubt whether we could meet our engagements. I went over to Mr. White and asked him how we stood ; he told me that the bank had certain secu- rities, and that we owed them a large balance, for which they held those securities. Mr. White had a memorandum containing, as I understood, a ligt of the securities ; but he did not give it to me or give me, in fact, any document or figures in writing ; he asked me my opinion as to the 108 CROWN CASES RESERVED. 1859. Skeen's Ballantine Serjt. (with him B. C. Robinson) appeared for Skeen, and Hardinge Gi^ard for Freeman. The arguments of the learned counsel were, in substance, value of various securities on which specific adyances had been made. I think it was at this interview that he told me that my partner had made an application to him, Mr. White, for the release of Tlie Laura Camphell cargo, but I think this was all he said on the subject. I do not believe that, at the time this interview took place, the bill of lading per Glide had come into the hands of Mr. White; the impression which this interview left on my mind was, that the bank was more than covered by the securities held by it. I heard nothing more until the 26th of May, when Mr. Joshua Freeman, my partner's nephew, in- formed me that the cedar per Laura Campbell was free for de- livery, for he had deposited the bill of lading per Glide with the bank, and Mr. White had agreed to give up the warrant for the cedar upon that deposit. I was much annoyed by this an- nouncement, and told Mr. Joshua Freeman that if the bill of lading was not restored to Messrs. Cavan within half an hour, I would inform them of the transaction. Joshua Freeman observed, in re- ply, that his uncle had only lodged the bill of lading for a day or two, when it would be redeemed, by money to be obtained froraOverend, Gurney Sf Co. by discounts. I had previously learned myself, at the docks, that the purchasers xyi the cedar were anxious and pressing for the delivery of their timber. Mr. Joshua Freeman also told me that Mr. White wished to see me at the City Bank ; and I went there with Joshua Freeman. We were introduced into Mr. White's private room, and he told me that'lny partner had lodged the Glide's bill of lading with the bank, and that, upon my signing a letter which he produced already written, he would deliver up the dock war- rant for The Laura CampheWs cedar. I read the letter, and ex- cused myself from signing it at that time, and took it with me. I said nothing further at that time about the Glide's bill of lading. On the following morning I signed the letter, and either took or forwarded it to the bank. I did this, fearing that Cavan Sf Co. would come to a knowledge of the transaction, and believing the assurance of my partner's nephew, that the bill of lading would be redeemed in the course of a day or two by my partner. I did not receive the warrant myself for the cedar, but left it to Joshua Freeman to arrange that transaction. Some days afterwards, on a Sa- turday, about five o'clock, I was sent to from the bank, and again saw Mr. White : this was previously to our having stopped payment. Mr. White asked me if we could pay any money against the bank's advances. I told him I could not do so at that time, but I added that I was most anxious for the release of the Glide's bill of lading, as we had made no advances upon it, and that Cavan, Brothers, even paid their own freight, and that the~ bill of lading ought never to have been lodged. CROWN CASES RESERVED. 109 as follows. The elaborate judgments subsequently delivered have rendered it unnecessary to set out the arguments more fully. 1859. bKGEN'e Case. I do not remember that Mr. JVhite made any remark on this. Before I made this communica- tion to Mr. White, the warrant for the cedar, per The Laura Campbell, had been delivered to us : the de- livery to the purchasers of the tim- ber was an office arrangement. The transaction above referred to is the only one I had with our bankers. I never saw the bill of lading of the timber ex Glide, until it was produced by Mr. White at the Jus- tice Room, Ouildhall, on Tuesday the 13th Jidy instant. The following is a copy of the learned Judge's notes on the trial. CENTItAl CbIMINAT. CoURT. October 'i^th, 1858. The Queen v. Skeen and Fbee- MAN. Indicted for misdemeanour under 6th section of 5 & 6 Vict. c. 39. Edward Ballard. — I am shipping clerk to Messrs. Cavan, Brothers Sf Co., West India merchants, of 29, Finsbury Circus. In April 1858, we received advice of consignments of timber. The prisoners are tim- ber merchants. In April last we employed the prisoners to sell some timber of which we had received advice. I saw prisoners about particulars. I have seen both at different times. I said they might dispose of it on arrival at a suitable price. They had directions to sell the timber. I had conversation with the prisoner Freeman previous to the arrival of the vessel called The Glide. He said he had not sold the timber, there was no suf- ficient offer made. On or about 24th May a clerk of theirs, Joshua Freeman, called and asked for the bill of lading, as he wanted to lodge it at the docks — on that I gave him the bill of lading — this is it — at that time it was not indorsed — ^he then left and took the bill of lading with him — in half an hour he returned and said it was useless — not being indorsed — on which I indorsed it — having authority to do so. He took it then away in- dorsed. On the 28th of June fol- lowing I went to the docks — I found a transfer had been made of the bill of lading from our name — it was indorsed. " Deliver to Mr. John Scott or order, Skeen and Freeman" were not on it when I delivered it to the clerk. Our firm was not indebted to the prisoners — they had no claim whatever on the bill of lading. I had conversation with the prisoner Skeen after the arrival of the vessel — he did not tell me he did not know of the deposit of warrant. Augustus Jackson White. — I am manager of the City Bank — the prisoners had an account at our house. The bank has often made advances to them on warrants. I have made advances to them on The Laura Campbell. On the 26th May, Freeman junr. came with a letter from his uncle, the prisoner Freeman. I know the prisoner Freeman's handwriting. (Letter put in and read).* It is the pri- soner Freeman's handwriting. The * This letter is set out in the deposition of Joshua Charles Freeman, ante, p. 101. no CROWN CASES RESERVED. 1859. Skeen's Case. 1. A statutable disclosure within section 6 of the statute 5 & 6 Vict. c. 39. is a defence under the plea of not guilty, and need not be specially pleaded. 2. The statement made by the prisoners in the Court of Bankruptcy was a sufficient disclosure within that section. The fact that a charge had been previously made before a magistrate, and supported by evidence, does not destroy the effect which the prisoners' statement before the commissioner would otherwise have had. Examinations before a magis- trate are often imperfect, and require corroboration and additional proof. [Pollock C. B.. — It must be taken that all that the prisoners could disclose was known before. I desired that the evidence should be set out in order to satisfy the Court that nothing came out before me which had letter was from private residence. The bill of lading came with the letter. It was indorsed in blank by (I believe) Freeman. I kept the bill of lading. Later in the day I saw the prisoner Skeen — he came to the bank. Freeman junr. came first to know if their request was granted. I said I wished to see one of the partners — on that the prisoner Skeen came (he said) in consequence of my message. I told him we could only take the bill of lading, in exchange for The Laura Campbell, on the firm signing a letter promising to hatid over the proceeds to us of the wood by The Laura Campbell when it was received. We were to hold the bill of lading of The Glide in the meantime, as security that the proceeds of The Laura Camp- bell should be given to us when received. He said if we would prepare the form of letter he would sign it. Our clerk drew out a letter ; he took it away with him, saying he wished to consider of it. Next morning he brought it back, signed " Skeen Sf Freeman" I believe it is the prisoner Skeen's handwriting — (Letter put in and read).* Cross-examined. — " Deliver to John Scott, or order,'' was not put till it was necessary to transfer the goods. Re-examined. — We did not con- sider the bill of lading ours till after the arrangement was com- pleted. I understood the prisoner Skeen attended to the dock depart- ment. Charles Hay ward. — I am a clerk in The East and West India Docks. The bill of lading was lodged at the docks on 26th May by Mr. Scott. It was indorsed as it now is. * This letter is sot out in Mr. White's deposition, ante, p. 103. Case. CROWN CASES RESERVED. Ill not already appeared before the magistrate and before 1859. the Commissioner.] Skebn's [CocKBUEN C. J. — The contention on the part of the prosecution is that, the facts having been already dis- closed before the magistrate, there could be no further disclosure of what was already known.] There is nothing in the statute to render a disclosure made before a magistrate more effective than one made in an attorney's office, or to a creditor, or a private individual. A matter, generally, may be well known to the creditors of a bankrupt and others ; yet it may be of great importance to induce the bankrupt to give a full, particular and detailed explanation. If it be fully known in every necessary particular, the creditors would not take the defaulting agent before the com- missioner to have him examined ; and the fact of their requiring him to be examined shews that there was something connected with the transaction which it was important for him to explain. [Pollock C. B — If your construction is the right one, this statute would, for the purposes of punishing crime, be valueless. Directly a bankrupt knew that his fraudulent conduct was known, and that he was likely to be prosecuted, he would get some friend to cause him to be examined in the Court of Bankruptcy, where he could make a disclosure which would protect him.] It is not argued that if a prisoner came voluntarily before the commissioner, or was taken before him coUusively by a friendly creditor, the statute would apply. No suggestion has been made but that the proceedings here against the prisoners were hostile to them, and bond fide. Were it otherwise, the fraud would avoid the benefit of the disclosure. It is hardly possible to imagine a case in which something of the Case. 112 CROWN CASES RESERVED. 1859. charge is not known to many persons. It may be Skeett's known in part to one person, in part to another. The attorney for the principals or the attorney for the credi- tors probably must know it, even if the principals or creditors themselves do not, before the agent can be taken before the Commissioner to be examined; but till then there is no disclosure to the proper person, namely to the Commissioner. If the word " disclose" is held to mean to reveal something not hitherto known, the statute will be practically inoperative. The term " disclose" has many meanings besides reveal for the first time. In legal language it means "set out;" "exhibit plainly,'' and in that sense a plea is said to disclose a defence; and in Whiley v, Whiley (a), decided on section 27 of The Comraon Law Procedure Act, 1852, it was held that the ex- pression, " disclosing a good defence on the merits," meant setting out the facts in the affidavit. A similar construction has been put upon the term in The Bills of Exchange Act, 18 & 19 Vict. c. 67. s. 2. In none of these cases is the word disclose held to mean a setting forth of facts not previously known. [Bramavell B. — Surely the word "disclose" must be a relative word. If the person to whom the statement is made does not know it before it is a disclosure to him.J It is no doubt a relative term; and a discovery to A. of a fact known to B., but not known to A., is a disclosure to A., though it would not have been so to B. Here the matter was not known to the creditors before, and even if known to them, it certainly was not known to the Commissioner. The enactment is, that the prisoner shall be protected if he discloses before the Commissioner; and it is clear (a) 4 C. B. 653. CROWN CASES EESERVED. 113 here that, as to the Commissioner, it was a disclosure 1859. or revealing of the facts for the first time. Skeen's [Crompton J. — When you file a bill of discovery in ^**®- Chancery, it is in respect of matters which you know pretty well before.] Yes ; and the bill must state the matters clearly ; for it is an objection if the bill is what is called a fishing bill. Here the object of the provision in ques- tion is to assist the persons interested, and to induce the agent to make a full explanation by giving him the most ample indemnity, if he makes a true answer to all the questions put to him, whether the facts he so states were before known or not. The examina- tion is a searching one, and the bankrupt may be forced to answer questions criminating himself, and his answers may be used against himself; Regina v. Sloggett (a), Regina v. Scott (6). If it be held that there is no disclosure in this case, it will be necessary on a criminal charge, where it is proposed to put in the examination of the prisoner before the Commis- sioner, to enter upon a collateral inquiry of great difficulty; namely, whether the matter was sufficiently known beforehand to prevent the examination being a disclosure. According to the suggested construction, an agent, who thought that be was revealing his fraud for the first time, would be deprived of the benefit of the statute if it were proved that some one else was previously acquainted with the transaction. The construction which the Crown would adopt would paralyze the intention of the Legislature ; and a fraudulent bankrupt would be deterred from making a discovery which it is the evident intent of the enactment to encourage. Cur. adv. vult. (a) Dears. C. C. 656. (6) Dears. & Bell, C. C. 47. 114 CROWN CASES RESERVED. 1859. The Court differing in opinion, the following judg- Skeen's ments were delivered on 5th February, 1859. Case. Lqj.^ Campbell C. J The Judges who concur with me in the judgment I am about to deliver, are the Lord Chief Baron, and my brothers Wightman, Martin, Willes, Beamwell, Watson, Channell and Hill. On the 13th day of July, 1856, the two de- fendants were charged before a magistrate with the offence for which they were afterwards tried, under the 6th section of 5 & 6 Vict. c. 39. By the depositions of several witnesses on oath the charge was then clearly proved against them, and all the circumstances connected with the guilty act imputed to them were fully explained ; accordingly they were duly committed for trial. On the 6th of July pre- ceding they had been adjudged bankrupts, and on the 26 th of the same month, while the prosecution was pending against them, being examined in the Court of Bankruptcy at the instance of a creditor, they made a statement to the same effect as the deposi- tions before the magistrate, and amounting to a con- fession of their guilt. Very soon after, at the next meeting of the Central Criminal Court, an indictment for this offence was preferred, and found against them, The trial coming on before the Lord Chief Baron, they pleaded not guilty, and they were convicted on exactly the same evidence which had been given against them before the magistrate. When the prosecutor's case was closed, their depositions in the Court of Bank- ruptcy were tendered in evidence in bar of the pro- secution, under the proviso to the section of the statute upon which the indictment was framed. It was objected, on the part of the Crown, that these depositions could not be admitted as a defence under the plea of not guilty; and that, at any rate, they CROWN CASES RESERVED. 115 did not amount to any defence. The Lord Chief 1859. Baron admitted the depositions, intimated his opinion Skeen's that they did not constitute a defence, and reserved ^^^• these questions for the opinion of this Court. If the depositions could be at all available, I think that they might have been admitted under the plea of not guilty, and that they were tendered in evidence at the proper time, when it could be distinctly seen what was the corpus delicti relied upon, and a com- parison could be made between the depositions before the magistrate, the depositions in the Court of Bank- ruptcy, and the evidence adduced at the trial, so as to ascertain whether there had been a disclosure within the meaning of the proviso. But I am of opinion that the depositions did not entitle the defendants to an acquittal. This question depends upon the sense in which the word "disclose" is used in the proviso to the 6th section of this statute. If by " disclosing the act" is meant merely stating the guilty act and confessing it, whatever may be the previous state of knowledge of the creditors, or of the Commissioner of bankruptcy, and whatever means of proving the guilty act may exist, and whatever steps may have been taken, and may be pending for prosecuting and punishing the offender, and although the statement or confession may be made while the grand jury are hearing evidence in support of the indictment, this conviction ought to be quashed. But, according to 'Dr. Johnson, "disclose" may mean "to uncover; to produce from a state of latitancy to open view; to reveal ; to impart what is secret." According to Richardson (whose authority I much respect), " dis- close" is " to uncover, or discover ; to reveal ; to open ; to make known; to tell that which has been kept concealed." Where by the use of clear and unequivocal language, capable only of one construction, any thing 116 CROWN CASES RESERVED. 1859. is enacted by the Legislature, we must enforce it, Skeen's although, in our own opinion, it may be absurd or Case. mischievous. But, if the language employed admit of two constructions, and according to one of them the enactment would be absurd and mischievous, and according to the other it would be reasonable and wholesome, we surely ought to put the latter construc- tion upon it as that which the Legislature intended. Where an agent who has abused the confidence reposed in him, and fraudulently made away with property with which he was intrusted, reveals what was before unknown, or incapable of proof, it may be well that for the information and advantage obtained by his confession, he should be indemnified against the penal consequences of his misconduct, which without his confession could not have been proved. But can it be supposed that the Legislature intended wantonly to extend the indemnity to cases where there is no merit whatever in the accused, where he states only what he knows to be already notorious, and where neither civil nor criminal justice can be at all advanced by the alleged disclosure? Would it not be a flagrant perversion of justice if a detected delinquent, of whose guilt there is abundant evidence, possibly by a previous voluntary confession, were enabled, after the charge has been made and judicially proved, and when a bill of indictment has been prepared, and is to be preferred against him at the next meeting of the proper criminal court before which he can be tried, to procure a friendly creditor to summon him into the Court of Bankruptcy, and if by there making or repeating the confession of his guilt, he might set his prose- cutor at defiance and escape with impunity? In the present case when the defendants were examined in the Court of Bankruptcy there was neither uncovering, nor discovering, nor revealing, nor imparting of what CROWN CASES RESERVED. 117 was secret, nor tellitig that which had been kept con- 1859. cealed. Neither for civil nor criminating purposes s^eWs was the slightest advantage obtained by the alleged ^^^^• disclosure. Without it an action might have been maintained for the conversion of the bill of lading. Without making the slightest use of it, the defendants were actually convicted of the misdemeanor, A diffi- culty was presented by the counsel for the defendant^ by supposing a case where the fraudulent agent, at the time of his examination in the Court of Bank- ruptcy, may have reason to think, and may believcj that he is disclosing what was before unknown, and may be deprived of his indemnity by proof of previous knowledge, and means of proof in the possession of others. If he really believed that he was making a discovery, and enabling his principal to obtain justice, I should be strongly inclined to think that this would be a disclosure of the fraudulent act within the mean- ing of the proviso. But in the present case the de- fendants, when examined in the Court of Bankruptcy, knew full well that they were making no discovery ; for they were present before the magistrate when the depositions against them were taken, those depositions were all read over to them, when they were asked if they then wished to say anything in answer to the charge, and they must have been fully aware that their statement was only a repetition of what had been before sworn against them when they were com- mitted for trial. It is highly proper, in construing this Act of Parliament, that we should look to see in what sense the word " disclose" is used in other Acts of Parliament; and we find it in 52 Geo. 3. c. 63. s. 5., and in 7 & 8 Geo. 4. c. 29. 5. 52., both of which are in pari materid. The object seems to be the same in all the three, they having regard to a civil remedy, and to criminal proceedings in cases of breach of trust 118 CROWN CASES RESERVED. Case. 1859. by agents. The language employed is nearly ther Skeen's same in all the three ; and I am of opinion that in all the three, for the same reasons, the word " disclose," admitting of the same construction, requires the same construction to be put upon it. There having been no judicial decision on the construction of these sta- tutes, I do not see they can be of use to us, except to shew more strongly how justice might be defeated by now holding that a "disclosure" means confession of what the party confessing was well aware had been before made known, and had been before judicially proved. There is another set of statutes of a different description respecting bribery at parliamentary elec- tions, in which the word "disclose" is to be found. The most recent of these is 15 & 16 Vict. e. 57. By section 9 of this statute, " no person shall be excused from answering any question on the ground of pri- vilege, or on the ground that the answer to such question will tend to criminate such person ;" and in return it is enacted, in the most express terms, that " every person who is examined as a witness, and gives evidence touching such corrupt practice, and who upon his examination makes a true discovery to the best of his knowledge touching all things to which he is examined, shall be freed from all penal actions, forfeitures, punishments, disabilities, and incapacities, and all criminal prosecutions to which he may have been or may become liable for anything done by such person in respect of such corrupt practice." Here it is quite clear that the most ample indemnity is held out to the person so examined if he makes a true answer to all the questions put to him, whether the facts he so states were before known or not. Sec- tion 10 goes on to enact, that the person so examined shall not be indemnified without a certificate from the Commissioners, "stating that such witness has upon KEEN S CllOWN CASES RESERVED. 119 his examination made a true disclosure touching all 1859. things to which he has been so examined." But true disclosure here evidently means true statement, and ^*^^- the certificate required by the 10th section is merely that the witness has conformed to the duty cast upon him by the 9th section when examined upon the voir dire. The other statutes of this class admit of the same explanation; and the laudable objects of the Legislature in enacting them seem to be promoted by construing " disclosure," where used in these statutes, to mean " statement ;" but to give the word " disclo- sure" the same meaning in the statute 5 & 6 Vict, c. 39., which treats of a totally different subject, I think would be to contravene the intention of the Legislature, and to occasion great public mischief. For these reasons I am of opinion that in the present case there was no disclosure within the meaning of the proviso relied upon, and that the conviction ought to be affirmed. CoCKBTJRN C. J In common with my brothers Williams, Ceompton, Ceowder and Byles, who agree with me in the opinion I am about to deliver, I am unable to concur in the judgment which has just been pronounced by Lord Campbell on behalf of the majority of the Court. I am of opinion that the defendants were entitled to be acquitted, as having disclosed on oath, on an examination before a Com- missioner in bankruptcy, within the meaning of the protecting proviso of the 5 & 6 Vict. c. 39., the matter for which they stood indicted as an offence against that statute. It is true, no doubt, that the transaction upon which the charge arose had not only become known, but had indeed become the subject-matter of prosecution, though not of indictment, against them at the time their evidence was given. On the other h3,nd, it must be taken that the evidence was given vol. l k Case. 120 CROWN CASES RESERVED. 1859. on a compulsory examination, instituted bond, fide, Skeen's with a view to the interests of the creditors, and not to the protection of the defendants. I am of opinion that evidence given under the latter circumstances constitutes a "disclosure" within the meaning of the statute, and entitles the party giving it to the pro- mised immunity, notwithstandiifg that publicity may have been previously given to the transaction, or that a prosecution may even have been commenced, if it has not advanced as far as indictment. In the consi- deration of this subject two questions appear to pre- sent themselves: first, whether the term "disclose" necessarily imports, ex vi termini, a particular meaning; secondly, if it does not, what meaning, upon a review of the statute in question and of others of a like nature, we ought to annex to it. On the first point we are told, on the authority of lexicographers, that the proper and general signification of the word "disclose" implies that the subject-matter of the communication is previously unknown, and that such therefore must be presumed to be the sense in which the term has been used in this statute. It may, I I think, be admitted that such is the more ordinary meaning of the term; but, on the other hand, it is equally certain that the word is in numerous instances used simply in the sense of to "shew," to "set forth," to "state or declare," without the collateral idea of the sub- ject-matter of the communication being before unknown. And it is important to observe that this is peculiarly the case in legal phraseology. In professional language the term is generally, I had almost said, and I believe I should be justified in saying, uniformly, so used. Thus we say, in common legal parlance, that a decla- ration discloses no cause of action, a plea no ground of defence, an affidavit no defence on the merits : in all which cases it is clear that the term is used in the more restricted sense contended for on behalf of the Case. CROWN CASES EESERVED. 1§1 defendants. In one view, indeed, it may be said that 1859. this use of the word is not inconsistent with the more skeen's extensive meaning ; for even in this sense a thing may- be said to be "disclosed" if it is made known for the first time as between the parties to the communication. A thing is not the less disclosed to J.., if made known to him for the first time, because it has been previously known to B. and C. Thus it would be perfectly ap- propriate language to say to J.., "I have discovered such and such a circumstance affecting the interest of B. and C. I shall disclose it first to B. and then to C." So, that which is for the first time stated or made known in the course of a judicial proceeding may well be said to be disclosed to the Court, though it may have been known before to fifty persons. In like manner, the same term is applied in various Acts of Parliament relating to the law, as in the 27th section of The Common Law Procedure Act of 1852, relative to setting aside a judgment signed against a defendant on an affidavit " disclosing a defence on the merits;'* and again, in The Bills of Exchange Act, 18 & 19 Vict. c. 67. s. 2., where there is a provision in the same terms as to a defendant being let in to defend. And so restricted was the construction which some Judges were disposed to put on this term, that in a case which arose on the first of these statutes ( Warrington v. Leake (a)), a majority of the Court of Exchequer decided that an affidavit, in which a defendant simply stated that he had a defence on the merits, was a sufficient disclosure of such a defence to satisfy the statute. And I have the autho- rity of the Lord Chief Baron, certainly no mean autho- rity in the matter of language, for saying that " the Legislature has made use of a word which does not necessarily convey more than the sense of telling (&)." (a) 11 Exch. 304. (V) Ibid. 307. K 2 122 CROWN CASES RESERVED. 1859. Still more strikingly to the purpose is the use of this Skbeu's term in a series of statutes (to which I shall have Case. occasion to refer more particularly further on) — statutes of a cognate character to the one we are considering, inasmuch as, like the present, they af- forded immunity to offenders as the price of the disclosure of crime. So far, therefore, as respects etymological authority, as derived from the legal sense and use of the term, it appears to me to be entirely in favour of the defendants. With regard to the construction of the statu^, if I apprehend the argu- ment aright, it is said, first, that the abuses which would arise from examinations before Commissioners in bankruptcy being instituted by friendly creditors for the frustration of criminal justice, if offenders about to be prosecuted could be thus protected, are sufficient to shew that the statutory protection could only apply to acts previously known to the offender alone, and by him for the first time revealed on his examination ; secondly, that the Legislature could not have intended to afford immunity in respect of acts already known, and in respect of which prosecution and punishment were impending, so as to snatch, as it were, a criminal from the hands of justice, As regards the first argument, ab inconvenienti, I shall presently shew that the inconvenience apprehended would be far outweighed by difficulties of a still graver character arising from the opposite construction ; but I must, in the first place, point out that the argument derived from this source is altogether inadmissible: for the statute we are now to expound is but one of a series of statutes passed in pari materiel, in all of which this same protecting clause occurs, and in all of which the term "disclose" must have the same construction; but, in the earlier statute, the clause did not apply to evidence given before bankrupt CROWN CASES RESERVED. 123 Commissioners at all. And if, as I shall presently 1859. endeavour to shew, the term " disclose," as used in sheen's the first and leading statute, had no reference to the c^^^- novelty of the matter deposed to, it is too plain to be denied that no argument derived from inconveniences which may arise from 'the extension of the provision to examinations in bankruptcy can be admitted to vary the sense of the term as used in a provision common to both statutes. As regards the second part of the argument, it is, no doubt, a striking and a popular view of this statutory protection to say that it cannot have been intended that an opportunity of escaping should be afforded to offenders whose delin- quencies have been already brought to light, simply because the parties aggrieved might find it desirable, for the protection of their private interests, to resort to the testimony of the guilty parties. I myself was at first greatly struck by this view; but, on a more careful and attentive survey of the Acts of Parliament, I have become persuaded that such view is erroneous. Some confusion appears to me to have arisen from considering the 5 & 6 Vict. c. 39. as an isolated statute, whereas, in fact, it is only one of a series of legislative enactments relating to fraudulent embezzlements by bankers and agents, in all of which the same protect- ing clause occurs. To a due appreciation of the subject it is necessary to pass these statutes in review. The first of them was the 52 Geo. 3. c. 63., which for the first time made the embezzlement of securities by bankers, brokers or other agents an offence. Now, when this statute is attentively considered, it appears plain that the protecting clause was inserted for no other purpose than to enable the aggrieved party to obtain the full effect of those civil remedies, which, while it converted into an offence that which at the common law was only a fraud, the statute was Case, 124 CROWN CASES EESERVBD. 1859. most careful to secure to him. After creating the Skeen'8 offence, the Act goes on to provide that any remedy which the party aggrieved might have had at law or equity shall not be impaired; and then imme- diately follows a proviso (as in the present statute) for protection to the offender as to any act " dis- closed" by him on oath "under or in consequence of any compulsory process of any court of law or equity in any action, suit or proceeding in or to which he shall have been a party, hond fide instituted by the party aggrieved." For this Act was after- wards substituted the 7 & 8 Geo. 4. c. 29., which first provided for the case of factors pledging, for their own use, goods, or documents relating to goods, entrusted to them for sale. Here again occurs the protecting clause, but with two striking improvements on the corresponding clause of the preceding statute : first, in the omission of the provision that the suit or proceeding in which the evidence is given should be one to which the offender was a party, whereby the evidence of the delinquent was secured in cases in which, by fraud or collusion with the guilty agent, the securities or goods had got into the hands of third parties ; and, secondly, by the extension, for the first time, of the protection to acts of which evidence was given before Commissioners in bankruptcy. This statute again was followed by the 5 & 6 Vict. c. 39., the Act which we are now called upon to interpret, in which the protecting clause is in precisely the same terms as in 7 & 8 Geo. 4. c. 29. From this review of these Acts of Parliament, it seems to me that two conse- quences necessarily follow : first, that, these Acts being in pari materid, and the proviso the same in them all, y/hatever was the meaning of the term " disclose" in the first, such must be its meaning in the last; and, secondly, as already pointed out, that if upon a closer CROWN CASES RESERVED. 125 consideration of the first of tliese statutes, the mean- 1859. ing should prove to be the narrower one, all the SkwT" arguments ah inconvenienti derived from the supposed ^^^^■ consequences arising upon examinations in bankruptcy must fall to the ground, seeing that the proviso of the first statute does not relate to disclosures made on examinations in bankruptcy at all. Now, as regards the first question, it appears to me only necessary to look at the provisions of the 52 Geo. 3. c. 63. to see at once that the word " disclosed," as there used, imports no more than a full statement by the witness of the matter in question. The Legislature, while it created the ofifence, seems to have intended to leave to the aggrieved party the option of proceeding criminally against the wrongdoer, or of enforcing his civil reme- dies against him. It was evidently most anxious to preserve to the injured party all his civil remedies intact. It even went out of its way to enact, unneces- sarily (the ofifence created being only a misdemeanor), that the civil right and redress of the aggrieved party should not be merged in the oflFence. And inasmuch as the efiiciency of the civil remedy would, in many instances, materially depend on the admission on oath of the offender, and as, in consequence of the matter now being made penal, the offender would be entitled to refuse to answer on the ground of his being privi- leged from criminating himself, the statute immediately went on to provide for the immunity of the respondent, thereby taking away, in effect, the privilege of silence, and securing the evidence to the aggrieved party. The succeeding statute removed the condition that the evidence should have been given in an action or suit to which the offender was a party; doubtless because it was found, as the fact is, that in the ma- jority of instances the cases in which the evidence of the offender is required are those in which he is 126 CROWN CASES RESERVED. ^^5^- not a party to the suit ; and doubtless for the purpose Bkeen'8 of securing the evidence in that numerous class of cases in which securities, goods, or documents may have got into the hands of third parties acting in concert and collusion with fraudulent agents or bailees. In like manner the protection was extended to examina- tions in bankruptcy, in order that bankrupts who had committed frauds of this nature, and agents who had embezzled the securities or goods of persons becoming bankrupt, might be subjected, for the benefit of a bankrupt's creditors, to the useful and searching ordeal of examination before Commissioners in bankruptcy. It appears, therefore, clear that the purpose of these protecting clauses was, as I have explained, to secure the evidence of the delinquents to the parties inter- ested, by taking away the ground on which alone the privilege of silence could be claimed. At all events, the only alternative that can be suggested is that the object was to induce the offender to give evidence of the guilty transaction in the civil proceeding (evi- dence which on the hypothesis he was not otherwise bound to- give), by insuring to him, as its price, protection against the possibility of prosecution and punishment. In any view of the subject, the object of the provision can have had reference to civil pro- ceedings alone. It can have had none to the position of the offender simply as such. It never can have been intended to give immunity to the offender in respect of acts which it was the very object of the statute to visit with punishment, and solely for the purpose of obtaining a useless confession of his guilt. A review, therefore, of all this legislation seems clearly to establish that the purpose of the protection was simply to insure to the aggrieved party the admission or evidence of the delinquent in civil proceedings. But, if this be so, it is plain that the prior knowledge CEOWN CASES RESERVED. 127 or publicity of the facts elsewhere could have no 1859. bearing on the subject. It would avail the party Skbei^s^ requiring the evidence nothing that the transaction ^''^^■ had been disclosed before. Yet if such prior disclo- sure were to operate as a bar to the protection, the obligation or the inducement to the witness to give the evidence would be at an end, and the purpose of the provision would be altogether frustrated, Nor is it any answer to the foregoing reasoning to say that, according to the decision of the majority of the Judges in Regina v. Cross (a), bankrupts are compellable to answer, even though they may thereby criminate themselves. Assuming that decision to have settled the law, though there was a division of opinion among the Judges, and the case was not brought, as it might have been, before the full Court of Appeal, the obvious answer is that the protecting clause applies not only to bankrupts under examination (as seems to have been assumed on the opposite view of the question)j but to other witnesses as well, and that the latter, unless they can be brought within the protecting clauses of the penal statutes relating to embezzle- ment, would not be bound to criminate themselves. It is matter of very frequent occurrence, as I have already observed, that third parties who in collusion with bankrupts, or in fraud of bankrupts, have been concerned in transactions which would come within these statutes are summoned for examination before commissioners in bankruptcy under the 33rd section of the Bankrupt Act. The examination of parties so circumstanced is often most essential to the interest of the creditors, which no doubt was the reason of the extension of the protecting clause to examinations in bankruptcy. But it is obvious that if the efficacy of the protecting clause is impaired by making the entire secrecy of the transaction deposed to the con- (a) Dears. & Bell, C. a 68. 128 CROWN CASES HESERVED. 1859. dition of its application, the utility of such examina- Skeen's tions will be reduced to nothing, as witnesses so Case. circumstanced will, of course, decline to answer. Moreover, this difficulty applies, not only to examina- tions in bankruptcy, but to examinations occurring under any form of civil proceeding to which the aggrieved party may resort. And if the term dis- closure is to be taken to import that the matter must be before unknown, where is the line to be drawn? Will communication to an associate, or a friend, or to an indifferent party, be sufficient to exclude? Or must it be a communication to a party interested? And, if so, will communication in cases of bankruptcy to a single creditor suffice to exclude, or must it be to the body of the creditors? Again, if knowledge of the transaction on the part of creditors will exclude, what degree of knowledge will suffice to do so? Must it be a knowledge of the entire transaction, and of all its particulars, or will it be sufficient if the transaction has been brought generally to the knowledge of others, while the particulars are left to be gathered from the examination of the party? If the latter, a bankrupt may be compelled to supply the defective links in the chain of evidence against himself, while he would be deprived of the immunity afforded by the Act. More- over, in every case in which the existence of the transaction had become in anywise known, or even suspected or surmised, it would always be a question whether it had become sufficiently known to deprive the witness of his protection, and the Judge or Com- missioner in bankruptcy, who would have to determine whether the witness was bound to answer, would have first to decide the preliminary question whether the circumstances amounted to a disclosure or not, without having the means of ascertaining whether the facts had become known elsewhere, and, if so, to what CROWN CASES RESERVED. 129 extent; and thus might very likely be called on to 1859. compel the witness to answer, where it would be his sheen's duty to protect him from unwillingly criminating ^^^^• himself. What answer is a Judge or Commissioner to make if appealed to, and told that the facts to which the witness is called upon to depose have been, in the whole or in part, made known to one or more individuals, in public or in private, clothed with authority to receive the statement or not, as the case may be ? Into what innumerable difficulties would not such a rule lead in practice ? Again, see the hardship upon a bankrupt against whom a prosecu- tion is contemplated, or perhaps already set on foot. It may be that the evidence is inconclusive, or the witnesses open to suspicion. Is it nothing that the accused shall be compelled, though before another tribunal, to admit the facts, and that his admission shall go forth to the public, the effect of which will be that, even if his statement so made would not be evidence against him on his trial, yet by the publicity given to his avowal, the jury will be already prepared to believe the case against him ? But, according to the authority of Regina v. Cross (a), not only is a bank- rupt compellable to answer, though in so doing he may criminate himself, but his admission may even be brought forward against him on a criminal prose- cution. Is such a result consistent with the provision of a statute, which in creating the offence has expressly protected a party disclosing transactions which would otherwise fall within its enactments ? No doubt cases will occur, as in the present instance, in which a con- flict may arise between the interests of criminal justice and the civil rights which it was the intention of the statute to protect. This the Legislature seems itself to have anticipated, and to have itself drawn the line by fixing the time of indictment as the period after (a) Dears. & Bell C. C. 68. 130 CROWN CASES RESEEVED. 1859. which the evidence shall no longer carry protection Skbbn's with it. This, I think, plainly shews that the Legis- ^*'®- lature contemplated the possibility of the publicity of the transaction prior to the evidence being given. The guilty act must be known before an indictment would be preferred ; and, generally speaking, an examination before a magistrate would, as a matter of course, precede the indictment. Is it for us to abridge the period of protection which the Legislature itself has fixed ? There is yet another consideration which, to my mind, is conclusive to shew that the construction put by the prosecution on the word " disclose" is not the true one. For this construction of the term would, as a necessary consequence, in the case of several co-delinquents, deprive all, except the one first examined, of the benefit of the protecting proviso. In the case of several partners, parties to an oflFence against the statute, all summoned for examination, all ready to disclose, the accidental circumstance that A. happens to be called before JB. and C, though all should give evidence as to the same transaction, would give to A. the preference of protection, while B. and C. would be excluded from it. The same thing would happen where the exa- mination of one of the parties might make it appear expedient to subject the other to examination. In the case now under consideration, supposing all diffi- culty arising from the previous publicity of the facts had been out of the way, one only of the partners, namely, the one who claimed to be examined first, would be entitled to the protection of the statute, because, the fact having once been made known, it could not, according to this construction, be again " disclosed." The absurdity of the consequence is to my mind irresistibly conclusive against the validity of the premises from which it necessarily flows. I am CROWN CASES RESERVED. 131 not insensible to the abuses which may be attempted i859. by examining bankrupts before Commissioners in bank- g™^^ ruptcy ; but, independently of the observations I have Case. before made as to the inapplicability of any argument founded thereon, I cannot but think the apprehended mischief is to be counteracted by rigorously insisting that the protection shall extend only to cases where the evidence is given on examinations instituted bond fide for the purpose of advancing the interest of the creditors. But, even if this were not so, these incon- veniences appear to me to be greatly outweighed by the graver difficulties I have pointed out, and which would have the effect of frustrating the purposes for which the protection is afforded. If on a review of the statute the meaning of the term " disclose" should prove to be what I have suggested, and inconveniences should arise from its application to examinations in bankruptcy, the remedy must be found by fresh legis- lation, not by a distortion of the sense of the terms of existing enactments. I have lastly to advert to that class of statutes in which protection is afforded to delinquents on their giving evidence of criminal acts in which they have been implicated. In many of these the term " disclosure" or " discovery" (these words used in a synonymous sense) occurs. Thus, in the various acts for the appointment of commissions for inquiry into bribery, of which the Act of the 15 & 16 Yict. c. 57. ss. 8., 9., 10., may be taken as an instance, protection is given to offenders making discovery or disclosure of criminal acts in evidence given before the Commissioners. Now these statutes, more especially the one just referred to, were all passed in consequence of so many instances of criminal acts having come to light that a more general inquiry became desirable. The acts to which a party would come to depose would all be known and notorious 132 CROWN CASES RESERVED. 1859. before the examination would take place; in a vast Skeen's number of instances the same witnesses had previously ^^^' been examined before committees of the House of Commons. Yet it never occurred, or could occur to any one, to suppose that the statement of the witness under the commission was not a discovery or disclo- sure within the protecting enactment, because the fact deposed to had been before openly stated by him or had been otherwise generally known. It never occur- red to any one that if one of the parties to a corrupt act had given information, the other, if examined before the commissioners, would not be held to have made a disclosure. And, to make the case as analo- gous as possible to the present, let me ask what would be the effect if, prior to the issuing of such a com- mission, an action had been instituted for penalties, or a prosecution commenced against the offender? Could the purpose of the Act be frustrated by hold- ing that there could be no disclosure under such cir- cumstances ? I apprehend, beyond all question, not. Again, in the Act for the suppression of gaming- houses, 17 & 18 Vict. c. 38., a person taken on suspected premises may be compelled to give evidence as to acts of gaming, or as to the unlawful obstruction of the entrance of the officers; and, if he makes a true and faithful discovery, he becomes entitled to immunity. Yet in such a case the facts are notorious ; there is no doubt that gaming has been going on ; the obstruction to the entrance of the officers is indispu- table; a prosecution is already commenced; what is wanted is legal evidence to prove facts of which no moral doubt exists; yet the Legislature treats the evidence given under such circumstances as a discovery entitling the witness to immunity. There are other statutes giving indemnity to offenders simply on their giving evidence of illegal acts to which such statutes CROWN CASES RESERVED. 133 have reference, without the use of the term disclosure 1859. or discovery. Of this the Act 6 Geo. 4. c. 129. s. 6., Skbbn's the Act for the suppression of illegal combinations ^*^^- among workmen, is an instance. These acts appear to me most important, as shewing that the term " disclosure," as applicable to evidence given by offenders, is used by the Legislature without the consideration of the facts spoken to being previously unknown being involved in it ; and, further, that where the production of such evidence is deemed desirable, the escape of the offender, even from a pending prose- cution, is not deemed a bar to its being obtained by immunity to the offender. Looking, therefore, to the use of the term in question in legal language, and in statutory enactments relating to the general adminis- tration of the law, and more particularly to purposes similar and analogous to the present, and looking also to the purposes of the present enactment, and the effect of the construction of the word " disclose" with reference to such purposes, I am irresistibly led to the conclusion that the true meaning of the term as it occurs in this statute is the restricted one which attaches to it in all these numerous instances; and that, consequently, the defendants have sufficiently disclosed the offence with which they stand charged, and are therefore entitled to our judgment. Lord Campbell C. J. — I by no means wish to offer anything by way of reply upon the judgment we have just heard read by the Lord Chief Justice; but, by way of explanation, I wish to make the single obser- vation that I myself, and my brethren who have agreed with me, are of opinion that the word " dis- close" may admit of two interpretations, the discovery of what was not before known, and a statement of that which was before known; and we are only to 134 CHOWN CASES RESERVED. 1859. look in each Act of Parliament to see in whicli sense Skien's it is used by the Legislature, knowing that in one set Case. Qf statutes it is used in one sense, and in another sense in other statutes. Pollock C. B. — I concur entirely in the judgment of Lord Campbell. I wish to make only one obser- vation upon the subject. There is no word in the English language which does not admit of various interpretations. It is no doubt frequently found that the imperfection of language leads to litigation on the construction of statutes and the meaning of terms. When we have to consider what is the meaning of a statute, and the sense in which a word is used, we must look at the intention of the Legislature. 1 own it ap- pears to me that if we were to construe the word " dis- close" in this statute as merely " to state," however much the matter disclosed might have been prevalent and universally notorious before, we should entirely defeat the object of the Legislature. On the other hand, in my opinion, the intention of the Legislature being to punish crime, if we put the interpretation upon the word disclose of making known for the first time, there still will arise those considerations which occur in judicial inquiries under any circumstances. It may well be that a statement by an agent would be a dis- closure within the Act, though the matter was known to some persons, as, for instance, to a clerk, or to a partner in a bank, with whom a document had been fraudulently deposited. But the ground on which I concur with my Lord Campbell is shortly this : — I am of opinion clearly that an Act of Parliament which is directed against crime must have been intended to be effectual ; and I think the interests of the public in the punishment of crime were far more within the view of the Legislature than the possible interests of cre- ditors under a commission, or a creditor against a CROWN CASES RESERVED. 135 debtor, and I think if we were to construe the word 1859, " disclose" in the sense contended for by the prisoners' Skeen's counsel, we should, in effect, repeal the Act of Parlia- ^^'^• ment, on the language of which we are bound to put that construction which will make it effectual, and not that which will make it abortive. Conviction affirmed. EEGINA V. THE INHABITANTS OF THE i859. PAEISH OF EAST HAGBOUENE. The following case was reserved at the Summer Upon an Assizes, 1858, for the county of Berks, by Byles J. for'th"non- The indictment charged the defendants with the ""epajrofa « , . . . . public car- non-repair of a public carriage road in the parish of riage road, East Haghourne, called the Coscot and Didcot road, ihauheroad branching out of a public road called the Coscot and ^as an Wantage road, near Coscot Cross, and leading into the way; that Wallingford and Farringdon turnpike road. yet^f ago the The defendants pleaded that they were not guilty, indicted The facts, so far as they are material to the question wherein the of law reserved, are these. ^?^Z%. The road indicted, called the Coscot and Didcot inclosed road, was an ancient public highway within the parish WmA.c.\i5., leading from the Coscot and Wantage public road on ^o'^ateslhT' General In- closure Act, 41 Geo. 3. c. 109. ; and the road was described in the award. Before the award the Commissioners made an alteration in the original road by straightening and widening it, but the whole of the original road was comprehended in the existing road as set out in the award. Both before and since the award the parish had repaired it, but no steps had been taken by the Commissioners for putting the road into complete repair ; there never was any declaration by justices that it had been fully completed and repaired, and no proceedings had been taken under section 23 of d & 6 Wm. 4. c. 50. It passed through allotable land on both sides except that a small portion on one side was an old inclosure. Held, that the parish was not liable to repair the road. VOL. I. L Uagbourne Case. 136 CROWN CASES RESERVED. 1859. the South, also within the parish, to the Wallingford East and Farringdon turnpike road towards the North. Other roads, nearly opposite the communication of the indicted road with these two roads, branch off from these roads respectively. The road which branches off from the Coscot and Wantage public road on the South is entirely, as to part of its length, in the indicted parish. In the year 1840 the parish of East Haghourne was enclosed under the provisions of the public general Act 6 & 7 Wm. 4. c. 115., which Act incorporates, by section 52, the provisions of the General Inclosure Act, 41 Geo. 3. c. 109. The inclosure award was published on the 14th June, 1840. Under the heading " public carriage roads and highways," the award thus describes the road in question. No. 2. Coscot and Didcot road. One public car- riage road and Ifighway of the width of thirty feet, branching out of the public carriage road called the Coscot and Wantage road, at or near Coscot Cross, and thence in or near its present track by the West end of the parish into the Wantage and Wallingford turnpike road. All the other public roads in the parish are des- cribed by the award in the same manner. The Inclosure Commissioners had before the awards made some alteration in the original Coscot and Didcot road by straightening and widening it ; but the whole of the original road is comprehended within the exist- ing road as set out in the award and described in the indictment The public can go from the point where the indicted road leaves the Coscot and Wantage road to the point where it reac)ies the Wallingford and Farringdon road S^-^^^s^^.^^.^ ix^f^t^^^ Case. CROWN CASES RESERVED. 137 by another road, called the New Road, which is an 1859. ancient public road, but the distance is nearly three eIst^~ times as great. Hagboubnb It is admitted by the defendants that the road indicted is a public road; that the indicted parish has repaired it both before and after the award, and that at the time of indictment found it was out of repair. It is admitted by the prosecution that no steps were taken by the Commissioners for putting the road into complete repair (see 41 Geo. 3. c. 109. ss. 8., 9.), unless the contrary must be inferred from the fore- going extract from the award ; that there never was any declaration by justices at their Special Sessions that the road had been fully and sufficiently formed, completed and repaired; and that no proceedings had been taken under 5 & 6 Wm. 4. c. 50. 5. 23. The indicted road passed through allotable land on both sides of it, except that Haghourne Park, which is on a small portion of the East side of the road, is an old inclosure. So much of the plan annexed to the award as shews the indicted road and the roads referred to in the above statement is to form part of the case. The defendants objected that the proviso in the 41 Geo. 3. c. 109. s. 9. applied to roads continued by the award, as well as to roads newly made under it ; and that, as the road in question has not been by justices at their Special Sessions declared to be formed, completed or repaired, the parish were not at present chargeable with the non-repair. They cited Regina v. Hatfield (a). The prosecutors insisted that the defendants were liable, and cited Regina v. Cricklade (6). They further insisted that the road in question was a prolongation of old public roads in the parish, beyond the limits of (a) 4 Ad. & E. 156. (J) 14 Q. B. Rep. 735. L 2 138 CROWN CASES RESERVED. 1859. the inclosure (see Thackrah v. Seymour (a) ) ; and ^^j. that the defendants, by repairing since the award, had Hagbocehe vpaived any objection, and admitted their liability. I reserved the objection for the opinion of the Court, and subject thereto advised the jury to find a verdict for the Crown. J. Baenard Btles. This case was argued, on 20th November, 1858, before Pollock C. B., Wightman J., Williams J., Byles J. and Hill J. Cripps {Henry James with him) appeared for the Crown; and Cfray (G. Francis with him) for the defendants. Gray, for the defendants. — The inclosure in this case took place subsequent to the General Highway Act, 5 & 6 Wm. 4. c. 50., but the case finds that no proceedings have taken place with regard to the road in question under section 23 of that statute ; and therefore, so far as any obligation to repair is thrown upon a parish by that Act, the defendants are exempt. The question will turn upon the provisions of the General Inclosure Act, 41 Geo. 3. c. 109. ss. 8., 9. Section 8 requires the Commissioners in the first place, before proceeding to make any allotments, to set out and appoint public carriage roads and highways over the lands intended to be allotted and inclosed, with a proviso that in case they be empowered to stop up any old road, passing through any part of old inclosures, the same shall not be done without the concurrence and order of two justices. By section 9, on which the question more particularly depends, the Commis- sioners are to provide for the first forming and com- pleting of such parts of the carriage roads to be set out as shall be newly made, and for putting into (a) 1 Cr. & M. 18. CROWN CASES RESERVED. 139 complete repair such part of the same as shall have 1859. been previously made. It then provides that the j^,,^ surveyor's salary, and the expence of such completing Hagbouenb and repairing, shall be raised in the same manner as ^'''' the charges of obtaining the special Act shall by such special Act be directed to be raised. The surveyor is to be subject to the control of the justices; and, in case such surveyor shall neglect to complete and re- pair such roads within two years after the award, unless a further time, not exceeding one year, be alloAved by justices, he is to forfeit 201 ; and, lastly, it is enacted that the parish shall be in nowise charged or chargeable towards forming or repairing the said roads respectively till such time as the same shall, by such justices in their Special Sessions, be declared to be fully and sufficiently formed, completed and re- paired, from which time, and for ever thereafter, the same shall be supported and kept in repair by such persons and in the like manner as the other public roads within such parish, township or place are by law to be amended and kept in repair. It is admitted that, before the inclosure, this was an ancient highway which the Commissioners widened and straightened, and that both before and since the award it has been repaired by the parish; but it is contended that, though it is still a public highway and not a new highway, the Commissioners having set it out and described it by their award, the parish is not bound to repair because the provisions of the 9th section have not been complied with. The justices have not declared the road to be " sufficiently formed, completed and repaired" as the Act requires, and therefore the parish is not liable. The case of Regina v. Hatfield (a) is clearly and expressly in point. There it was held that, under section 9 of 41 Geo. 3. c. 109., a road continued, as well as a road newly (a) 4 Ad. & E. 156. 140 CROWN CASES RESERVED. 1859. made, under an award, must by justices in Special East Sessions be declared to be fully completed and repaired ^^Case""* before the inhabitants of the district can be indicted for not repairing it. Btles J. — If not repairable by the parish, where are the funds for the repairs to come from? The inclosure was made eighteen je&rs ago. The com- mission has expired, and the funds from that source are exhausted. Gray The same difficulty existed in Regina v. Hatfield, but did not prevail. Hill J. — The parish having repaired the road since the award, can it now set up the want of the declara- tion of the justices ? Gray. — It is submitted that it can. The case of Regina v. Cricklade (a), which may be cited on the other side, was the case of a bridle road, and the question was whether it had been stopped. There the special Act, incorporating the General Inclosure Act, authorized the Commissioners to stop up and alter ways and set out new ways. They ordered the common to be inclosed, and set out a road thirty feet wide with the same termini and in the same line as an old bridle way; and directed that it should be a public bridle way, and a private carriage way for cer- tain persons who should keep it in repair ; and the Court of Queen's Bench held that the old public way was never effectually stopped, and that the parish were still liable to repair it as a bridle road. The same question does not arise here, and that case is not in point. In this case the liability of the parish could not commence till the certificate was given. Cripps, for the Crown. — The facts of this case are different from those in Regina v. Hatfield or any other decided case bearing upon the point in question. In Regina v. Hatfield there was not, as there is here, (a) 14 Q. B. Rep. 735. Case. CROWN CASES RESERVED. 141 evidence of the parish having done repairs subsequent 1859. to the inclosure. Here, by repairing, the parish waived e7st the necessity for the certificate. The road was both Hagbourne before and after the inclosure repaired by the parish. BxLES J — It was agreed between the counsel at the trial that the road had been repaired both before the inclosure and since. WiGHTMAN J. — What should you have said sup- posing there had been no evidence of repairs ? Cripps — That the parish cannot defend itself under section 9, as it does not appear that any surveyor was appointed, and the appointment of a surveyor is re- quired to enable the justices to certify, and is a con- dition precedent to the cessation of the liability on the part of the parish. That construction of the statute is to be adopted which, in giving eflFect to the statute, guards the rights of the public. As it cannot be pretended that this ancient road has been stopped {Eegina v. Cricklade), it is still a public highway, and the defendants, by repairing, have waived the necessity for the certificate. At all events, the whole of the requirements of section 9 not having been complied with, the enactment of that section does not shield the parish from liability. Gray, in reply With regard to the appointment of the surveyor, the statute provides that he is to be appointed by the Commissioners ; and, if there was any neglect on their part in not appointing one, the parish is not to be held responsible. Cur. adv. vult. On 5th February, 1859, the judgment of the Court was delivered by Pollock C. B. — We are of opinion that this con- viction was wrong. Conviction quashed. 142 CROWN CASES RESERVED. ^^^^- EEGINA V. ALEXANDER RICHMOND. The prisoner The following case was reserved by Watson B. rinTiTdict- The prisoner was tried before me at the Spring Son"57of Somersetshire Assizes, 1869, for an offence under the 9 & 10 Vict. County Court Act, 9 & 10 Vict. c. 95. s. 57., in several acting Tnd couuts, for acting and professing to act under false act undef a° "olour and pretence of process of the County Court of false colour Somersetshire. The prisoner had obtained blank forms of th^'^process for the plaintiff's instructions to issue County Court Court of '5*^ Summons, one of which he filled up, and without any It appeared authority, signed it, " William Giles, Registrar of the sonerXing Taunton Court" (original annexed). On the back the a creditor of prisoner wrote : B., obtained t: i • -i ^ * i j a blank form " Unless the whole amount claimed by Alexander fnstniction^ ' Richmond, draper, of Taunton, is paid on Saturday, an for s"ra™o"s> execution warrant will be immediately issued against up with parti- yOU. culars of the u Wi+nooo -i names and WltnCSS l ''WiUiam GiUs." addresses of " my signature ) B. as plaintiff The registrar of the Court is named William Giles. ant and"f" The signatures on the face and on the back were the nature forgeries. of the claim. This documcnt the prisoner inclosed in an envelope, authority"* ^^^ ^^"* ^* ^7 P°^* *° Thomas Snooks (the person in- signed the serted as defendant in the form), at Creech St. Michael. name of the The sum of 9*. Qd. was due from Thomas Snooks to ^t^Court"^ the prisoner. The document was sent to Thomas and indorsed Snooks to obtain payment of the said sum. Snooks^s (which he wife Went with the document (on receiving the same) also without authority signed with such name), that unless B. paid the amount by a certain day an execution warrant would issue. This form so filled up and signed he sent by post to B. with intent thereby to obtain payment of his debt. Held, by Cockbdrn C. J., Eble J., Cbompton J. and Watson B. (Bramwell B. dubitante), that these facts constituted an acting and professing to act under the false colour or pretence of the process of the County Court, and that the conviction was right. CROWN CASES RESERVED. 143 to Mx. Giles, the registrar, to pay the money, who re- 1859. fused to receive it ; and Mr. Giles, saw the prisoner Richmond's and charged him with the offence, who confessed his '^^^^• guilt in having so written and sent this document. The words " By authority" printed on the document referred to the form being issued by the authority of the authorities in London. It was contended, on the part of the prisoner, that this was not an offence within the above provision, and the case of The Queen v. Evans {a), and particu- larly an observation of Lord Campbell in delivering his judgment, were cited. I reserved the point for the consideration of the Court of Criminal Appeal, and admitted the prisoner to bail W. H. Watson. The following is the form referred to in the case. No. 112. — Plaintiff's Instructions. By Authority.— Babnioott, Printer, Taunton. No. of Plaint, T. 568. County Codet of Someesetshiee, at Taunton. * Plaintiff's Name in } Alexander Richmond, full. ifor Mr. A. Carmichael, Exeter. Plaintiff's Residence 1^^^^ ^^^^^_ Taunton, Draper. and Occupatio n. 3 Defendant's Name in) ^^^^^ ^^^^^^^ fulh [ Defendant's Residence) ^^^^^^ ^^_ ^.^^^^^^ Labourer. and Occupation. ) Amount claimed. d. 6 Nature of Claim. Goods sold and delivered. Dated 6 September, 1858. Signed William Giles, Register of the Taunton Court. (a) Dears. & Bell's C. C. 236. 144 CROWN CASES RESERVED. 1859. At the back of this form the prisoner had written Richmond's the words mentioned in the case. Case. This case was argued, on 30th April, 1859, before CocKBURK C. J., Eele J., Cbompton J., Bkamwell B. and Watson B. F. Edwards appeared for the Crown ; no counsel appeared for the prisoner. F. Edwards, for the Crown. — This case depends upon the authority of Regina v. Evans (a). By sec- tion 57 of 9 & 10 Vict. c. 95., on which this indict- ment is framed, it is enacted: that "every person who shall forge the seal or any process of the Court, or who shall serve or enforce any such forged process, knowing the same to be forged, or deliver or cause to be delivered to any person, any paper falsely purport- ing to be a copy of any summons or other process of the said Court, knowing the same to be false, or who shall act or profess to act under any false colour or pretence of the process of the said Court, shall be guilty of felony." Watson B. — I reserved the case in consequence of the counsel for the prisoner bringing to my notice an observation of Lord Campbell, in Regina v. Evans, to the effect that the mere sending the letter in that case would not have been acting under colour of process. CocKBURN C. J. — We all think that the judgment below should be affirmed. Ceompton J. — The oflFence proved is certainly a professing to act under a colourable process of the Court. Bkamwell B, — I consider myself bound by the au- thority of Regina v. Evans (h), as being a prior decision , (a) Dears. & Bell's C. C. 236. well B., in Regina v. Evans, is See also Regina v. CasSe, lb. 363. that the words " who shall act or (J) The reason given by Bram- profess to act under any false colour CROWN CASES RESERVED. 145 of this Court; but at the same time I do not wish it 1859. to be understood that I agree with the decision there Richmond's given. Case. Conviction affirmed. or pretence of fhe process of the genuine document by a false colour Court" imply an acting under a or pretence. REGINA v'. JOHN SMITH SUNLEY. 1359 The following case was reserved by the Eecorder of The prisoner PnrHmmifh was convicted The prisoner was tried before me at the last Quarter ™J°*' '^"^6'' bessions tor the borough of Portsmouth, upon the c. 41. s. 2., following indictment, framed under the provisions of ^ith^havin™ 9 & 10 Wm. 3. c. 41. K™^f Borough of Portsmouth.'] The jurors of our lady dy, possession the Queen upon their oath present that John Smith naval storef' Sunley late of the parish of Portsea in the borough of marked -ny.i ^07 11 with the Portsmouth, in the county 01 Southampton labourer on broad arrow. the 28th day of August in the year of our Lord 1858 JyX^evi-^ with force and arms in the parish aforesaid in the dence that borough aforesaid in the said county unlawfully had M,°with their in the custody possession and keeping of him the said a^^re"sedto John Smith Sunley certain naval stores marked with G-, an officer ^ of The Lon- don and South Western Railway Company at Nine Elms, were taken by two females to the Portsmouth Station and duly forwarded to London by railway, and deposited in the goods department of the railway at Nine Elms, London, where O. acted as officer. The prisoner, a marine store dealer at Portsmouth, wrote and telegraphed to an officer of the railway Company to deliver the bags to Mr. Emmanuel. This was not done, but a letter written by G., stating "there are several bags lying at this station, consigned by you to me, marked M, to whom are they to be delivered ?" was shewn to the prisoner by a clerk in the railway office, and the prisoner, in reply, directed.the clerk to telegraph to "deliver to Emmanuel as before." The bags, in consequence of information, were opened at the goods depart- ment, and were found to contain naval stores marked with the broad arrow. Bags had been previously forwarded in a similar manner by the railway to the goods department of the Company in London, marked E, which the prisoner had ordered to be delivered to Emmanuel. — Held, that there was evidence to support the conviction. 146 CROWN CASES RESERVED. 1859. the mark usually used to and marked upon such like Sunlet's naval stores of our said lady the Queen that is to say Case. 20 pounds weight of copper nails each of the said nails being stamped and marked with the broad arrow 30 pounds weight of mixed metal nails each of the said mixed metal nails being stamped and marked with the broad arrow 50 pounds weight of pieces of copper each of the said pieces of copper being stamped and mafked with the broad arrow and 50 pounds weight of pieces of mixed metal each of the said pieces of mixed metal being stamped and marked with the broad arrow which said naval stores so stamped and marked as aforesaid were then and there found in the custody possession and keeping of him the said John Smith Sunley he the said John Smith Sunley not being a contractor with the principal officers or commissioners of our said lady the Queen of the Navy Ordnance or Victuallers for the use of our said lady the Queen or employed by any con- tractor with the principal officers or Commissioners of our said lady the Queen of the Navy Ordnance or Victuallers for the use of our said lady the Queen and he the said John Smith Sunley not being a con- tractor with the Commissioners for executing the office of Lord Admiral of the United Kingdom of Great Britain and Ireland for the use of our said lady the Queen or employed by any contractor with the said last mentioned Commissioners for the use of our said lady the Queen to make any stores of war or naval stores whatever, to the diminution of the naval stores of our said lady the Queen against the form of the statute in such case made and provided against the peace of our lady the Queen her crown and dignity. The following facts and documents were proved. CROWN CASES RESERVED. I47 The prisoner was a dealer in marine stores carrying 1359. on business, at Portsmouth. On the 27th August, ~^^~^ 1858, several bags marked with the letter M, and Case. addressed to " Mr. Godson, Nine Elms Station," were brought to the Landport Station at Portsmouth of The London and South Western Railway by two women, and were dispatched by the train to London. They arrived safely, and in the same condition in which they were dispatched from Portsmouth, at the Nine Elms Station, where they were unloaded and deposited in the goods department of The London and South Western Railway at that station. Bags similarly ad- dressed, but marked with the letter E, had several times before been sent in a similar manner from Portsmouth to London. The following paper was written by the prisoner at the Nine Elms Station some time before any bags addressed to Mr. Godson, and marked with the letter E, had been received there. " Goods marked E always deliver to the order of A. Emmanuel, 51, Marylebone Lane^ On the 25th August, 1858, the following letter in the handwriting of the prisoner was received by Mr. Godson at the Nine Elms Station through the post. " Mr. Godson, Sir, please to deliver goods marked M to Mr. Emmanuel, and oblige, yours respectfully, " /. S. Sunley." On the 1st of September, 1858, the prisoner came to the goods department of the Landport Station at Portsmouth, belonging to The London and South West- ern Railway, and saw there the clerk of the goods department. He produced to the clerk the following letter written for Mr. Godson, and at his desire, by Mr. Scott, the chief clerk at the Nine Elms Station. 148 CROWN CASES RESERVED. 1859. " London and South Western Railway. Sunley's " Superintendent's Office, Nine Elms (S), *^^'^' • " London, August 31st, 1858. •" Dear Sir, — There are several bags lying at this station consigned by you to me and marked M. To whom are they to be delivered or forwarded? " Mr. Emmanuel has applied for goods from you lying to his order, but as I am not aware he is entitled to these bags, I have declined to deliver until I am advised who is the real owner. Yours obediently, " W. F. Godson, pp. S. W. R. " Mr. Sunley, 26, Plymouth Street, Southsea." Indorsed on the back of this in pencil, in the prisoner's handwriting, were these words. " Sir. Mr. Mountain. Please telegraph to deliver M to Mr. Emmanuel as before, and oblige. Yours J. S. Sunley." The prisoner had also with him another paper written, which he shewed to the clerk, on which were the following words in his own handwriting. " To Mr. Godson. — All the goods lying at the station marked M to be delivered to Emmanuel as pre- viously advised. Advise Emmanuel on receipt of this, with instructions to remit by return of post. To M. E. C. " Please to apply for goods and remit on account." On the back of his second paper were written also in the prisoner's handwriting the following words, " I have been expecting the cash, and Mr. Godson's forgetfulness or oversight has inconvenienced me much. Should it prove, my fault I will pay ; if not, I expect not to pay. Yours respectfully, J. S. Sunley." He requested the clerk to telegraph to London to Mr. Godson the words written on the face of his second CROWN CASES RESERVED. 149 paper and set out above. The clerk refused to tele- 1859. graph the whole message, but did telegraph as follows sunley's to Mr. Godson. Case. " Please to deliver the bags of goods marked M to Mr. Emmanuel." The following letter in the prisoner's handwriting was received on the 2nd of September through the post by Mr. Godson. "26, Plymouth Street, Southsea, "Sept. ], 1858. " Mr. Godson, Sir, I wrote you to deliver goods marked M to Mr. Emmanuel; this I expected to stand until further orders instead of keeping them at N'ine Elms. I had a strong reason for changing the letter, and may have again some day ; but always continue to deliver the last instructions in future. I shall have no more goods for B. a., o in the sche- 1" Petty Sessions. duieto8&9 First. "I ucver had any connexion with the coin- Viet. c. 10., •' alleging that plaiuant." had g^ve^ Second. " I have never given her a farthing." proof of Third. " I was not present at Mrs. Griffith's when payment of ^ . "i "" money for Mrs. Lewis says 1 gave her money. "f^the^cWid ■'-* '^^^ proved, both before the magistrates and at within twelve the trial, that, the child, of which the defendant was its birth; the father, was born so long ago as October, 1852, proof"ha"dhi and though the jury found the three assignments of fact been perjury against the defendant, yet they found also given to the , , i p i , , .,. 7 7 summoning that the defendant had not, withm twelve months next justice. The defendant appeared at the Petty Sessions, according to the exigency of the summons, and made no objection to the proceedings ; and the case on the hearing at such Petty Sessions was gone into upon the merits. The defendant was convicted on an indictment charging him with perjury committed at such Petty Sessions, the jury finding that he had not within twelve months after the birth of the child paid any money for its maintenance. Held, that the justices in Petty Sessions had jurisdiction, and that the conviction was right. CEOWN CASES RESERVED. 169 after the birth of the child, paid any money for its 1859. maintenance. '- — ■J SIMMONS'S It was objected by the prisoner's counsel that under Case. these circumstances there was no jurisdiction in the magistrates in Petty Sessions to hear the complaint, and therefore that the defendant could not, in point of law, be guilty of perjury in swearing as above; see 7 & 8 Vict. c. 101. s. 2. and 8 & 9 Vict. c. 10. Schedules thereto. I directed the jury on these findings to return a general verdict of Guilty, but saved the point. The defendant is out on bail (a). J. B. Btles. This case was argued, on 30th April, 1859, before COCKBURN C. J., EeLE J., CROMPTOlir J., Beamwell B. and Watson B. T. Edwards appeared for the Crown, and H. T. Cole for the prisoner. H. T. Cole, for the prisoner (6). — The statutes on which this question depends are the 7 & 8 Vict. c. 101. and 8 & 9 Vict. c. 10. The first of those statutes^ by section 2, enacts that the mother of a bastard child may, in a case like this, upon proof that the man alleged to be the father of such child has, within the twelve months next after the birth of such child, paid money for its maintenance, make application to a jus- tice of the peace for a summons to be served upon the man alleged by her to be father of such child, and (a) It was admitted on the argu- the summoning justice of the pay- ment that no objection was taken ment of money for the maintenance by the defendant on the hearing of of the child within twelve months • the summons at the Petty Sessions, after its birth, and that the summons was in the (J) The clauses in these statutes form pointed out in 8 & 9 Vict, arefully set out in iJeg'imi v. Serry, c. 10., and alleged that the woman ante, p. 46. applying had given proof before N 2 170 CROWN CASES RESERVED. 1859. such justice shall thereupon issue such summons ac- SiMMORs's" cordingly. In this case no such proof as that required by the statute was given to the summoning justice. The proof was essential to the granting of the summons, and the justice had no authority to issue the summons at all. Erle J. — The woman had taken out a summons formal upon the face of it, and the justices in Petty Sessions could not refuse to entertain it. Cole. — But this is a special jurisdiction given by the statute. The proof of .payment of money is a condi- tion precedent to the issuing of the summons; conse- quently the entire proceedings were a nullity. The test of jurisdiction is whether justices have power to enter upon an inquiry; Regina v. Bolton (a), Regina V. Scotton (6), Regina v. Evans (c). CocKBTJEN C. J The case of Regina v. Evans only goes to shew that there must be some process to bring, a man before the Court. Cole. — On the part of the Crown Regina y. Berry (d) will be relied on ; but this case is distinguishable, in- asmuch as the case expressly finds that there was not in fact any money paid by the defendant within the twelve months. It will be said that the defendant waived the objec- tion by not making it at the Petty Sessions; but it was a matter of public interest and could not be waived, and he could not waive that of which he was not aware. The proceedings being a nullity, no waiver could make them good; Hanson v. Shackle- ton (e), Taylor v. Phillips (/), Graham v. Inglehy (g), Goodwin V. Parry (A). (a) 1 Q. B. Rep. 66. (e) 4 Bowling's Rep. 48. (i) 5 Q. B. Rep. 493. (/) 3 East, 155. (c) 4 New Sess. 191. (g-) i Exch. 651. (d) Ante, p. 46. (A) 4 T. R. 577. CROWN CASES RESERVED. 171 F. Edwards, for the Crown, was not called upon by 1859. the Court. ^ ~ „ SlMM0N3S CocKBUEN C. J.— We think that this case is governed ^^'^• by the principle of Regina v. Berry, which shews that the position advanced by the prisoner's counsel is untenable. It is contended by him that under the provisions of the statutes in question, in order to give jurisdiction to the justices in Petty Sessions, proof must have been given to the justice from whom the summons was obtained that money had been paid by the defendant within the time specified by the Act. Regina v. Berry decides that such proof is not of sub- stance essential to the jurisdiction, but matter of pro- cess only, and as such can be waived by the defendant. Here the case is stronger than Regina v. Berry. The summons is in the form pointed out by the statute, and alleges that the woman had given the necessary proof; no defect is apparent on the face of the pro- ceedings. No defence was in fact made on that ground, and it was the duty of the justices in Petty Sessions to proceed. Conviction affirmed. REGINA V. JOHN SIDEBOTHAM. 1859. The following case was reserved by the Recorder of The defend- Manchester. !"17^'"" dieted for erecting a house within 24 feet of another existing house, contrary to the provisions of the Manchester Improvement Act. By section 30 of that Act it is enacted, that it shall not be lawful to build any houses viith their fronts facing each other, which shall be separated from each other by a space less than 24 feet wide, excepting only on sites of houses built prior to the Act, and except on vacant plots in streets partially built upon on both sides. It appeared that A., the owner of land, built up to the boundary of his land, the same not being in a street ; and some time afterwards the defendant, the owner of the land in front of the houses built by A., built a stable, within 24 feet, in front' of ^.'s houses. Held, that the defendant was not prevented from doinp; so by the provisions of section 30, as that section applies only to the erection of new streets. 172 CROWN CASES RESERVED. 1859. At the Manchester General City Sessions holden Side- before me on Monday the 22nd November, 1858, John ^°C^^'^ Sidehotham was tried and found guilty of a misde- meanor on the following indictment ; that is to say :-^ City of Manchester in the county of Lancaster to wit. The jurors for our lady the Queen upon their oath present that before and at the time of the. com- mitting the oflfence hereinafter mentioned there was and still is within the said city of Manchester a certain house with the front facing into a certain street within the said city oi Manchester called Wright Street and that John Sidehotham late of the city aforesaid in the county of Lancaster bricklayer then and there well knowing the premises on the sixth day oi September in the year of our Lord one thousand eight hundred and fifty-eight at the city aforesaid in the county aforesaid and within the jurisdiction of this Court unlawfully did erect and build within the said city and jurisdiction a certain other house to wit a stable in such a position that the fronts of the said two houses face each other and are separated from each other by a space of less than twenty-four feet wide And the jurors aforesaid upon their oath aforesaid do say that the said house so un- lawfully built and erected by the said John Sidehotham as aforesaid was not nor is erected upon the sites or site of any houses or house built prior to the passing of a cer- tain Act of Parliament passed in the ninth year of the reign of her Majesty Queen Victoria entitled "An Act to effect improvements in the borough of Manchester for the purpose of promoting the health of the inhabitants thereof" and that the said house so built by the said John Sidehotham as aforesaid was not nor is built up to or according to or in continuation of or within the line of any house or houses already existing in the $aid street and that the same was and is built with its ft-pnt much nearer to the front of the said first naen- BOTHAMS Case. CROWN CASES RESEEVED. 173 tioned house than the line of the houses already exist- 1859. ing on the opposite side of the said street from the ^^. said first mentioned house against the form of the statute in such case made and provided and against the peace of our lady the Queen her crown and dignity. 2nd count. And the jurors aforesaid upon their oath aforesaid do further present that before and at the time of the committing the offence hereinafter mentioned there was and still is within the said city of Manchester a certain house with the front facing into a certain street within the said city called Wright Street and that the said John Sidehotham late of the city aforesaid in the county of Lancaster then and there well knowing the premises on the sixth day of September in the year of our Lord one thousand eight hundred and fifty eight at the city aforesaid in the county aforesaid and within the jurisdiction of this Court unlawfully did erect and build within the said city and jurisdiction a certain other house to wit a certain enclosure to wit a wall in such a position that the fronts of the said two houses face each other and are separated from each other by a space of less than twenty-four feet wide And the jurors aforesaid upon their oath aforesaid do say that the said house so un- lawfully built and erected by the said John Sidehotham as aforesaid was not nor is erected upon the sites or site of any houses or house built prior to the passing of a certain Act of Parliament made and passed in the session of Parliament held in the eighth and ninth years of the reign of her Majesty Queen Victoria en- titled " An Act to effect improvements in the borough of Manchester for the purpose of promoting the health of the inhabitants thereof " and that the said house so built by the said John Sidehotham as aforesaid was not nor is built up to or according to or in continuation of or within the line of any house or houses already 174 CROWN CASES RESERVED. 1859. existing in the said street and that the same was and Side. is built with its front much nearer to the front of the BOTHAM's gaid first mentioned house than the line of the houses Case. already existing on the opposite side of the said street from the said first mentioned house against the form of the statute in such case made and provided and against the peace of our lady the Queen her crown and dignity. In the year 1842 or 18.43 a row of cottage houses was built in the township of Ardvneh, in the city of Manchester : there was no evidence to shew that the cottages had not been built up to the extreme limit of the land belonging to the owner of such cot- tages, except that he had made a flagged pavement in front of them of the width of 2 feet 6 inches ; and the counsel for the prosecution stated that for the purposes of the trial it might be assumed that they had been built up to such extreme limit. The cottages fronted due South, as near as possible running East and West. At the time these cottages were built there was no house or building opposite to them ; the whole of the land in front was vacant, that is, unbuilt upon. Seven or eight years ago the present owner, Mr. Welsh, pur- chased these cottages ; they were then not all finished, but they are now, and at this time are all tenanted ; and at the time Mr. Welsh purchased them there was no wall or building opposite to them or any of them. In front of the cottage at the West end of the row was written " Wright Street." But no steps whatever had been taken to make it a street repairable by the public. The cottage at the West end of the row abutted towards the West upon a paved street; but such paving does not extend beyond the front line of the cottages; and the narrow flagged pavement in front of the cottages going Eastward extended only round the corner of the cottage at the East end of CROWN CASES RESERVED. 175 the row, and to the back door of that cottage, and no 1859. further; and there was no thoroughfare at all, the side- land to the East of the last mentioned cottage belong- ^"^l^f^ ing to the defendant. To the West, and in the direc- tion of what is called Wright Street, there is a paved street which is only six yards and a half wide, and which has been paved by the town four or five years : the part so paved was an old street, and the town have not hitherto taken upon themselves to pave any thing beyond the old street. After these cottages had been erected, and after they had become the pro- perty of Welsh as aforesaid, that is to say about six years ago, the defendant purchased, and became and was, and now is, the owner of the land whereon, in the month of September, in the year 1858, he erected and built the stable complained of in the first count of this indictment, and also the wall complained of in the second count of the said indictment. There Avas a model but no plan produced at the trial ; the above sketch (a) may make my statement more intelligible. The defendant's wall complained of at the South West end thereof commenced at Vance's coal yard, and extended North East till it joined the back wall of defendant's stable ; the wall is 10 feet 9 inches high, and the stable 18 feet 9 inches high. Nearly twenty years ago there was a high paling, 7 or 8 feet high, which, commencing where the South West extremity of defendant's wall does, extended in the same direc- tion and in the same line that the wall does for 15 feet to the North East, dividing Mr. Vance's land from the land now the defendant's. That paling did not exist when defendant purchased this land, and there was no fence at all upon it then. At the end nearest Vance's coal yard it was higher by about 4 feet than the land on Vance's side, and the defendant's (n) See plan or sketch annexed. 176 CROWN CASES RESERVED. 1859, land gradually rose higher as it went towards where '^^. the stable is; the whole of the land of defendant was botham's cij^; sheer down, and there was no other mark to shew its limit but the bank of earth. Some time ago the defendant lowered that portion of his ground adjoin- ing to Mr. Vance's until it was of about the same level as Vance's, and, there being no apparent bound- ary line between, Mr. Vance again put up paling where the old paling had been to mark the boundary of his own property, and also to prevent the defendant going over his land ; and the defendant afterwards, follow- ing the line of the paling Vance had so put up, built in September last the said wall so complained of on his own land. As soon as ever the said wall crosses the line which I have marked as 8 yards from the cottages, it gets within the prohibited distance from the front of such cottages, and as it goes on to the North East it gets gradually nearer to the cottages, until at the point where it joins the back wall of the stable it comes to within 2 feet 10 inches of the front of the Eastern- most cottage, and a portion of the back wall of the stable being of the length of 4 feet 7 inches, at the furthest point where it joins the said wall is only 2 feet 10 inches from the same cottage, and at the extreme East end of the same cottage the back wall of the stable is only 1 foot 10 inches from the front of it. The door into the stable is from the defendant's own land, and there is no opening by window or otherwise in the back wall of the said stable. I had great doubt whether either the wall or the stable, which the defendant had clearly built within the prohibited distance of 8 yards from the front of the said cottages, were such buildings as are contem- plated by the 30th section of the said Act; but it being considered that it was very desirable to have a construction put upon this most important Act of CROWN CASES RESERVED. Parliament by the Court of Criminal Appeal, I directed the jury that both wall and stable were such build- ings as were. so prohibited; at the same time telling them that that question would be reviewed by the Court of Criniinal Appeal. The jury found defendant guilty. The question for the opinion of the Court is, Whether that direction was right as to both or either of the buildings complained of. The learned counsel for the defendant also contended that, even admitting that the defendant had broken the Act of Parliament, it was not an indictable oflFence. I held that, if he had broken the law, he might be indicted for it; but I reserved that question also for the Court of Criminal Appeal. R. B. Armstrong, Kecorder of Manchester {a). 177 1859. SlDE- eotham's Case. (a) The following are the sec- tions of the statute (8 & 9 Vict, c. 141.) material to the case : — By section 18, the council of the borough is authorized, for the pur- poses of effecting sanatory improve- ments, "to enter upon and take, and for that purpose to agree with the owners of any house or of any piece of ground within the borough, for the absolute purchase, for a con- sideration in money, of any such house or ground," or part thereof, at a sum to be agreed upon between the council and the owners. isy section 29, it is enacted that " no street to be made or laid out within the borough after the com- mencement of this Act shall be of less width than twenty-four feet, such width being computed in addition to and beyond all areas, windows or other projections." By section 30, it is enacted that "it shall not be lawful to build within the borough any houses with their fronts facing each other which shall be separated from each other by a space of less than twenty-four feet wide, excepting only in cases where such houses shall be erected upon the sites of houses built prior to the passing of this Act, and ex- cepting also in cases where vacant plots of land may exist in streets already partially built upon on both sides ; in which latter case it shall be lawful to build up to the line of the houses already existing in any such streets." Section 31 regulates the height of houses in certain streets. By section 32, front entrances are not to be opened into certain streets. By section 33, the owner is to give notice to the town clerk before laying out a street. By section 34, the town council is to make regulations as to level of streets. By section 35, the town council may alter level, if made contrary to regulations, at expense of owners. 178 CROWN CASES RESERVED. 1859. This case was argued, on 7th May, 1859, before ~ SiD^- CocKBURN C. J., Eele J., Ckompton J., Bramwell B. botham's and Watson B. Case. _. TTr7 7 Monk Q. C. appeared for the Crown ; Dr. Wheeler and Hopwood for the defendant. Dr. Wheeler, for the defendant. — The question arises on the construction of section 30 of the Manchester Improvement Act, which enacts that it shall not be lawful to build any houses with their fronts facing each other which shall be separated from each other by a space of less than 24 feet wide. This is not the case of a street; but it is a case in which the owner of land, having built cottages up to the extreme limit of his own land, objects to the defendant, the owner of the land adjoining the front of the cottages so built, building any houses facing his without leaving the required space. This statute must be construed with reference to the rights of the owners of property as well as with reference to sanatory purposes. Sec- tion 30 obviously points at the erection of new streets, and ought not to be so construed as to enable one man so to build as to deprive his neighbour of part of his property. Here the locus in quo was not a street at all. Monk Q. C, for the prosecution. — The Act was passed for sanatory purposes, and the stable in ques- By section 36, the town council subject or context repugnant to may alter level of existing or future such construction; it is enacted, streets, sewers, &c., at the cost of that " words importing the singular the mayor, aldermen and burgesses. number shall include the plural Section 37. If houses, &c., in- number, and words importing the jured by altering level of street, plural number shall include the town council to make compensation singular number ;" and that " the to owners and occupiers. word ' house,' or the word ' houses,' By section 89, after enacting shall include any messuage or dwel- that the following words and ex- ling-house, tenement, warehouse, pressions should have the several manufactory, building nr other in- meanings thereby assigned to them, closure, and every part thereof." unless there were something in the Case. CROWN CASES RESERVED. 179 tion is within the object of the Act. Free circulation 1859. of air should exist between all erections within the Side- town; and, by the interpretation clause, it is abun- *°™,t*''* dantly clear that a stable is a house within the mean- ing of the Act. The Act must be construed favour- ably for the benefit of the public ; and it is submitted that the front of a house is that side of a house which looks towards the street, in the same way that frontage ground is that side of a piece of land which faces the road or street. Section 30 cannot apply merely to the cases of new streets, for there are exceptions in the section which clearly shew that it has reference to existing streets. By the interpretation clause, the word "houses" in section 30 may mean " house," and so every person who erects a house within the prescribed distance is within the provisions of the section. The Act is a remedial rather than a penal Act, and its provisions are for the highest public benefit. The result of a contrary construction to that now con- tended for on the part of the Crown would be that section 30 would become a dead letter, and houses would be built within 24 feet of each other, which is manifestly, in the estimation of the Legislature, sub- versive to health. Wheeler was not called upon to reply. CoCKBTJEN C. J. — We are of opinion that this con- viction cannot be sustained. The case turns upon the construction of section 30 of the Act in question, which provides that it shall not be lawful to build within the borough any houses with their fronts facing each other which shall be separated from each other by a space of less than 24 feet, excepting only where such houses shall be erected upon the sites of houses built prior to the passing of the Act; and excepting also in cases where vacant plots of land may exist in streets 180 CROWN CASES RESERVED. 1859. already partially built upon on both sides; in which Side- latter case it shall be lawful to build up to the line of '*°Caser'^ the houses already existing in any such streets. PrimQ, facie, it would seem that it is only an offence within the language of the section where a person builds, or two persons conjointly build, houses at the same time with their fronts (concurrently built) facing each other. If the back of a house was then made to face the front of the opposite house, I do not say whether that might not fall within the section. But, primd facie, the houses must be built practically at one and the same time to come within the meaning of the 30th section. By the interpretation clause, words importing the singular number shall include the plural number, and vice versd; and Mr. Monk contended that the defendant was brought within section 30, inasmuch as the word " houses" might be read " house," and the words "each other" might be read "another;" but we can only apply the interpretation clause where it is clear the substantial enactment was intended to apply to "house" in the singular number as well as to "houses" in the plural; and when the context is looted at I do not think that that was intended. Sec- tion 30 is only one of a group of sections for making and laying out and building streets, and it is plain that this is not a street in any acceptation of the term. In order to put the required construction on the section, we must change the words from "houses facing other" to "house facing each other." By doing this we should do violence to the words of the section, and make it refer to the case not of a street alone but of isolated buildings generally, which is contrary not only to the language but the spirit of the statute. The other learned Judges concurred. Conviction quashed. CROWN CASES RESERVED. 181 EEGINA V. FRANCIS INGHAM. 1859. The following case was reserved by Crompton J. A bankrupt The prisoner was convicted before me at the June ^ an°Mict- Old Bailey Sessions, 1859, for havina; made a false and '"«"'^' '"■'^'^'^ „ , "^ ' ' ° upon section iraudulent entry in a book of account, with intent to 252 of the defraud his creditors, on an indictment framed upon g_ joe. (The ' the 252d section of The Bankrupt Act, 12 & 13 Vict. Bankrupt ^ r 7 L^^y Gonso- C. 10b. liilation Act, It appeared that the prisoner had kept a book in makin'o-T which he entered his receipts and payments, and at false and , . r I • 1 1 1 -11 1 • fraudulent the time of his bankruptcy that book shewed receipts entry in a of money to the amount of 4150?. 195. 7c?., and pay- account, ments to the amount of 3801 Z. 10s., leavinsr a deficiency with intent -1 -r. . t° defraud of 349t. 95. Id. to be accounted for. Being uneasy as to his creditors. accounting for this deficiency lie made a false book in foun^'^that^ which he entered false amounts opposite many of the the entry in . " . question was items of receipts and payments, so as to shew receipts made by the by him to the amoutit of 2668Z. 5s., and payments to ^^th'j);['*nt the amount of 3172Z. I*. 7c?. to deceive rni . f -It 1 • T 1 1 • -ii "'S creditors The jury found that this was done by him with as to the intent to deceive his creditors as to the state of bis ^^^l^^^^}^^ accounts, and to prevent the examination and investi- and to pre- gation of them in the due course of bankruptcy, and examination to save him from having to account for the deficiency g^fi^'^^of^''" appearing in the genuine account; but they found them in the that it was not done to defraud the creditors of any bankruptcy, money or property, or to conceal any money or pro- ^^^ ^°^^^ having to account for the deficiency appearing in the genuine account ; but they found that it was not done to defraud the creditors of any money or property, or to conceal any money or property, or to prevent them from recovering or receiving any part of his estate, or to conceal any misappropriation or preference by him. Held, that the conviction was wrong as the bankrupt was not found to have had any intent to defraud his creditors within the meaning of the statute. ■ y- VOL. I. Case. 182 CROWN CASES RESERVED. 1859. perty, or in any way to prevent them from recovering Iitgham's or receiving any part of his estate, or to conceal any misappropriation or preference by him. On this finding the jury, by my advice, returned a verdict of guilty, subject to a case to be reserved by me as to whether the false entries were, upon the state of facts found by the jury, made " with intent to defraud his creditors," within the meaning of those words in the above mentioned section. It may be observed that the 252d section renders it necessary that, besides the act being done to defraud creditors, it should be done either "after an act of bankruptcy," or " in contemplation of bankruptcy," or " wi'h intent to defeat the object of the law relating to hanhrwpts" which expression may be argued to shew that something more than defeating the operation of the bankrupt laws is intended by the phrase " with intent to defraud his creditors." See Gordon's Case, Bearsley^s Crown Cases Reserved, page 586, top of page 588, bottom of page 600, and top of page 601. The prisoner is at large on bail. Charles Ceompton. Section 252 of 12 & 13 Vict. c. 106. (The Bank- rupt Law Consolidation Act, 1849,) enacts: "That if any bankrupt shall, after an act of bankruptcy com- mitted, or in contemplation of bankruptcy, or with intent to defeat the object of the law relating to bank- rupts, destroy, alter, mutilate or falsify any of his books, papers, writings or securities, or make or be privy to the making of any false or fraudulent entry in any book of account or other document, with in- tent to defraud his creditors, every such bankrupt shall be deemed guilty of a misdemeanor, and, on conviction, be liable to imprisonment for any term CROWN CASES RESERVED. 183 not exceeding three years, with or without hard. 1859. labour." 1^^^^^ Case. This case was argued, on 12th -J^ovember, 1859, before Pollock C. B., "Willes J., Channell B., Byles J. and Hill J. Ballantine Serjt. and Jacobs appeared for the Crown, and Lawrence for the defendant. Lawrence^ for the defendant. — This conviction is under section 252 of The Bankrupt Law Consolidation Act, and I contend that the defendant had committed no offence within the meaning of that section, the essence of which is the making false entries Avitk intent to defraud creditors. The offence which the defendant really committed would be included in the class of cases referred to in section 256, which enacts " that if, at the sitting appointed for the last examina- tion of any bankrupt or at any adjournment thereof, it shall appear to the Court that the bankrupt has committed any of the offences hereinafter enumerated the Court shall refuse to grant the bankrupt any further protection from arrest ; and if at any sitting or adjourned sitting for the allowance of the certificate of any bankrupt it shall appear that he has committed any of such offences, the Court shall refuse to grant such certificate or shall suspend the same for such time as it shall think fit, and shall in like manner refuse to grant the bankrupt any further protection." One of the offences referred to, for which the bankrupt may have his protection refused and his certificate refused or suspended, is if the bankrupt shall, with intent to conceal the state of his affairs or to defeat the objects of the law of bankruptcy, " have kept, or caused to be kept, false books or have made false entries, or withheld entries in, or wilfully altered or falsified any book, paper, deed, writing or other docu- o 2 184 CROWN CASES RESERVED. 1859. ment relating to his trade, dealings or estate." This Ingham's ^® precisely what the bankrupt in this case has done. Case. He has falsified his books, as the jury have found, to deceive his creditors as to the state of his accounts, and to prevent the examination and investigation of them in the due course of bankruptcy, and that is one of the oflfences a punishment for which is provided by section 256, but certainly is not a criminal ofifence contemplated by section 252, the jury having expressly found that there was no intent on the part of the bankrupt to defraud his creditors. The defrauding conteriiplated by section 252 is not simply deceiving the creditors, but defrauding them of money or property; and here the intention of the bankrupt could not have been to defraud them of the^. money in question, which had long before been spent. The decision of Lord Ahinger in Regina v. Marner {a) is very much in point. That was an indictment under the 99th section of 1 & 2 Vict. c. 110., which enacts that in case any prisoner, with intent to de- fraud his creditors, wilfully and fraudulently omit in his schedule any property, or except out of his sche-. dule as necessaries any property of greater value than twenty pounds, he shall be adjudged guilty of a mis- demeanor; and it was held by Lord Ahinger that an insolvent, wilfully or fraudulently omitting sums of, money from his special balance sheet, is not guilty of a misdemeanor under this section, as it only applies to cases where the omission would affect the interest of creditors, and not where it is an omission of money received and subsequently expended by the insolvent. The learned counsel was here stopped by the Court, who called upon Ballantine Serjt., for the Crown The jury find that the bankrupt's intent was to deceive his credi- (a) Car. & Marsh. ('28. Case. CROWN CASES RESERVED. 185 tors as to the state of his accounts. It is true that 1859. they also find that there was no intent to defraud ingham's them of any money or property; but section 252 does not mean to limit the offence to an intent by fraud to deprive the creditors of the property of the bankrupt. Pollock C. B. — The finding of the jury is, in efiiect, that the man meant to do himself some good, but to do his creditors no harm. Hill J., — Two intents are contemplated in the sec- tion: there must be the intent on the part of the bankrupt to defeat the object of the law relating to bankrupts; and, plus that, the intent to defraud his creditors — to deprive them of something to which they are entitled. Ballantine. — In statutes in which the intent is so to limit the signification, the language is " with intent to defraud of money or goods ;" but here the expres- sion is used in its most general sense. To defraud means to deceive, to deprive a person of any right by deceit. The creditors of the bankrupt had a right to have a true statement of the bankrupt's accounts; and the jury have found that these false entries were made with the view of depriving them of that right. Channell B. — The intent to deceive merely will not do. Pollock C. B Is there any decision or dictum that "deceive" in law means to defraud? If a man wears an apron to conceal his worn out clothes he deceives, but he does not defraud. On some occasions both words mean to cheat, but to defraud means to cheat a person out of something. Byles J. The 256th section expressly provides for the offence mentioned in the first part of the 252d section. Pollock C. B.— You can hardly contend that if a Case, 186 CROWN CASES RESERVED- 1859. man falsified his books, in order to conceal from his Ingham's Creditors certain matters on which he had spent his money, not with the object of defrauding the credi- tors, but simply because he did not like such matters to be known, he would be guilty of an offence within this section. Balhntine.— It is true that when money is gone a knowledge of the mode in which it has been expended may not affect the position of the creditors j but it may have a great bearing upon the sort of certificate that the bankrupt would get. In Regina v. Gordon (a) the indictment alleged the intent to be to defraud the creditors by depriving them of their right to examine the bankrupt. Lawrence was not called upon to reply. Pollock C. B. — We are all of opinion that this con- viction cannot be sustained. The jury have expressly found that this was done by the defendant with intent to deceive his creditors as to the state of his accounts, and to prevent the examination and investigation of them in the due course of bankruptcy, and to save him from having to account for the deficiency appear- ing in the genuine account ; but they also found that it was not done to defraud the creditors of any money or property, or to conceal any money or property, or in any way to prevent the creditors from recovering or receiving any part of his estate, or to conceal any misappropriation or preference by him. Now it may be that in doing this the bankrupt intended to defeat the object of the bankrupt laws; but that alone is not sufficient to constitute an indictable offence under this section. It must also appear that the intent was to defraud the creditors, and the jury have expressly negatived any intention to defraud them; and upon the whole finding of the jury, therefore, it is impossible (a) Dears. C. C. R. 586. CROWN CASES RESERVED. 187 that this conviction can be sustained. If it could be 1859. supported, the consequences to which it would lead ihgham's would be that the enactment in question would apply C*^^' to a case where a man who had become bankrupt from a sudden pressure, but who was able when his re- sources were got in to pay, and who had paid, twenty shillings in the pound, might afterwards be indicted under this section on its being discovered that there was an item of expenditure in his accounts, entered under a false head to prevent its being knosvn in what manner he had expended his money, a circumstance which, from motives that may readily be imagined, he wished to conceal without having the slightest wish or intention to defraud. The other learned Judges concurred. Conviction quashed. REGINA V. CHAKLOTTE EVANS. 1859. The following case was reserved by the Vice Chair- The prisoner man of the GlaTnorganshire Sessions. yicted upon Charlotte Evans was indicted at the Michaelmas »" ^"'ijct- ment for Quarter Sessions 1859, for the county of Glamorgan, obtaining for falsely pretending that a piece of paper was a bank fo°J^^^re^ note then current, good, and of the value of five ^^5^^^'^.*^^^^,,^ alleged being, that a certain piece of paper was a bank note then current, good and of the value of 6Z. 5 whereas it was not a bank note then current or good or of the value of 5/., or of any value whatever. It was proved that the note was the note of a private bank which was no longer m existence and which had paid a dividend of 2«. 4d. in the pound; and that a neigh- bouring banker refused to change it. , ■ , i. • vj. ■ j The Chairman told the jury that there was some evidence from which they might inter that the note was not of any value. , , Held, that a person passing such a note as a good note, and as of the value ot 51., knowing that the bank was insolvent and had stopped payment and could not pay the note in full, would be guilty of obtaining money by false pretences; but that as the Chairman had told the jury that there was evidence from which they might mler that the note was of no value, and as there was in fact no evidence from which it could be so inferred, the conviction must be quashed. Case. 188 CROWN CASES RESERVED. 1859. pounds, by which false pretence she did unlawfully Evans's^ obtain from one Mary-Miles certain money Avith intent to defraud, whereas in fact the said piece of paper was not a bank note then current or good, or of the value of five pounds, or of any value whatever, as the said Charlotte Evans at that time well knew. It appeared in evidence that the prisoner, on the 20th of July^ 1859, tendered to one Sarah Thomas a piece of paper purporting to be a five pound note of the Newport Old Bank, and obtained change to the full amount of five pounds. There was no question as to the identity of the note or of the prisoner. But to prove the allegation in the indictment that the said note was of no value, Mr. John Parry Morgan was called, who stated that he was now cashier of the West of England Bank at Cardiff; that he remembered the Nexvport Old Bank; that that bank does not now exist; that he saw the doors of it shut; that it was a private bank, and paid a dividend of two shillings and fourpence in the pound in the year 1852 or 1853; that he knows Newport, which was the place where the bank named in this note transacted its business, and that there is no such bank to which it could be presented. It was also proved by David Jones, who was one of the several parties to whom this note was transferred for value after it was changed for the prisoner, that he went to a bank in Merthyr Tydfil 'audi there tendered it, but did not get change for it. It was objected, on behalf of the prisoner, that the above was not sufficient evidence to go to the jury in support of the allegation, that the note was not good, or of the value of five pounds, or of any value whatever, I overruled the objection, and told the jury that I thought there was some evidence from which they CROWN CASES RESERVED. 189 might infer, if they thought fit, that the note was not 1SS9. of any value, and read to them the evidence of the Evans's "witnesses above referred to verbatim. ^^^^• The prisoner was convicted and sentenced to four months imprisonment with hard labour, subject to a case for the opinion of the Court above, as to whether there was sufficient evidence before the jury to sustain the allegations in the indictment as above stated. John Coke Fovder, Vice Chairman and Stipendiary Magistrate. This case was argued, on 19th of November 1859, before Pollock C. B., Williams J., Crowdek J., Channell B. and Hill J. No counsel appeared for the Crown. Hardinge Giffard, for the prisoner. — The conviction must be quashed. In Regina v. Williams {a) a similar question arose. There the prisoner was indicted for obtaining 5Z. by false pretences, thefalse pretence alleged being that a certain promissory note of the Newport Old Bank was a good and valid note, he the said John Wil- liams well knowing that the said bank had long before stopped payment. It appeared in evidence that the prosecutor, on 5th July 1857, went to a public house where the prisoner was drinking, when the prisoner said that he would pay for a gallon of beer if anyone would change a 5Z.note for him. The prosecutor handed over hi. in exchange for the note which the prisoner assured him was a good one. The note in that case was issued by Messrs. Williams of the Old Bank, New- port, and was dated May 1847. The bank stopped payment in October 1851, and Messrs. Williams were made bankrupts in the same year. In that case Martin B., after conferring with Bramwell B., (a) 7 Cox's C. C, 351. 190 CROWN CASES RESERVED. 1859. directed an acquittal; and mentioned a case which E^^^g.g had been tried some time previously at Shrewsbury, in Case. -which a learned Judge had pursued the same course. There is also the case of Rex v. Spencer (a), in which the indictment was for false pretences in passing a note of a bank that had stopped payment as a good note. It was proved that the prisoner knew that the bank had stopped payment, but it appeared that two only of the partners of the bank had become bank- rupt, and the third had not. In that case Gaselee J. said, " On this evidence the prisoner must be ac- quitted ; because, as it appears that the note may ultimately be paid, I cannot say that the prisoner was guilty of a fraud in passing it away." Here it appears by the case that the bank had paid a dividend of 2s. 4 J. in the pound; but who can tell that 205. in the pound may not be paid ? The allega- tion in the indictment, that the note was of no value, is not supported by the evidence. PoiiOCK C. B, — There is no doubt that the obtain- ing money by a false pretence, in relation to the note of a bank which has stopped payment, may be the sub- ject of a criminal prosecution, as in cases where the party produces the note and says that it is of such a value ; but if the note is simply produced and left to tell its own story, would that alone be evidence of a false pretence ? There seems to be no evidence that the prisoner was guilty of any fraud at all. She might have received the note five minutes before she obtained the change; and there is nothing to shew that she knew that the bank had stopped payment, Williams J. — The only question reserved for this Court seems to be whether the allegation in the indict- ment, that the note was of no value, was supported by the evidence. The jury were told that there was evi- (a) 3 Car. & P. 420. CROWN CASES RESERVED. 191 dence from which they might infer that the note was 1859. not of any value. There is no other question left for evahs's us to consider. Giffard. — There was no evidence of the prisoner having said a word about the note when she obtained the change, or even that she could read. The fact of something having been paid upon the note was cer- tainly no evidence that it was of no value. Pollock C. B. — Probably this case might have been left to the jury in such a way that the verdict of guilty might have warranted the sustaining of the conviction. Had the prisoner represented the note to be of 5/. value when she knew it was not of that value, and the jury had found the false pretence and that the note was of less value than bl. to her knowledge, it would have been sufficient to justify a verdict of guilty. But, as the case is stated for our consideration, the only question for us is whether there was evidence that the note was of no value. There is no reasonable evidence that the note was not of any value; for, al- though 25. 4J. in the pound had been paid upon it, it might still be of some value. Upon the case there- fore as it is presented to us the conviction cannot be sustained. Williams J It is clear that as this case is stated to us the prisoner has not been rightly convicted ; but I wish to guard myself against being supposed to hold that a person might not be convicted on an indict- ment for obtaining money by false pretences by means of such a note as this, provided it were proved that the prisoner, knowing that the bank had stopped payment and could not pay its notes in full, represented the note to be of full value and the note of a solvent bank. The question was not properly left to the jury. Crowdek J. — The case was not properly left to the jury; indeed the question left to them was an imma- 192 CROWN CASES RESERVED. 1859. terial one. If the note was fraudulently represented Evans's bj the prisoner to be a good note of the value of 51, Case. there was evidence that the note was not of that value; but the Judge put it to the jury to say merely whether the note was of no value, not whether the prisoner knew it to be not a good note. If a person presents a note for 51 as a good note for that amount, knowing that the bank has stopped, it would amply sup- port an indictment for obtaining money by false pre- tences ; but, as the case is put to us, the conviction cannot stand, for there was no evidence from which the jury could infer that the note was of no value. I come to the conclusion that the conviction ought to be quashed entirely on the ground that the Chairman told the jury that there was evidence that the note was not of any value. CHA2!nsrELL B Without saying what was the right question to be left to the jury, I agree that there was no evidence to enable the jury to say that the note was of no value. Hill J. concurred. Conviction quashed (a). (a) See Rex v. Flint, Russ. & on C. & M. 296 ; Rex v. Freeth, Ey. 660 ; Regina v. Clark, 2 Dick, referred to in a note to Rex v. Q. S., by Talfourd, 315 ; 2 Kuss. WilliaTtis, Euss. & Ry. C.C.R. 127. CROWN CASES RESERVED. 193 REGINA V. EGBERT WESTLEY. 1859. The following case was reserved by the judge of Thedefend- the Sheriffs' Court of the city of London. petitioned''^ At a Session of oyer and terminer and laraol delivery, ^^^ Court T- TJ J. ,,..,. . o , ^ ,^ . . 1/^ for relief of nolden tor the jurisdiction of the Central Criminal Court insolvent inSeptember, 1859, Robert Wesiley was tried before me on Sr owing an indictment, a copy of Avhich is hereto annexed. The l^ss than • in • • • • 300Z., was necessary evidence for supporting a conviction was given convicted on upon the trial, except so far as appears by this case, ^ent'for" and as to the sufficiency of which the opinion of the perjury oom- Court for the Consideration of Crown Cases Reserved him before that Court at an adjourned hearing of the matters of his petition. The preliminary averments in the indictment were, that the defendant was a trader owing less than 3001., and having resided as by law required within the district ; and in proof thereof the prosecutor produced the petition of the defendant, signed by him and filed in the Court for relief of insolvent debtors, wherein he alleged, as facts upon which with others he founded his application to that Court, the same matters as were set forth in such averments. Held, that the preliminary averments were sufficiently proved. The indictment also alleged that notice of the petition was inserted in the Gazette ; that a day was appointed for the first examination ; and that the sitting on that day was adjourned. No evidence was given in support of these allegations ; and it was objected that as they were not proved it did not appear that the Court had any jurisdiction to hold the examination. Held, that, as, upon the filing of the petition, the Court had jurisdiction to institute the examination ; and as the sittings of a Court of record are presumed to be lawfully and rightfully holden these allegations might be rejected as immaterial. The indictment also alleged that the prisoner after the passing and coming into operation of certain statutes, to wit on the 20th of May, 1859,- presented his petition. The time when two of the statutes were passed was inaccurately described, and although the indictment purported to set out the titles of the statutes in hmc verba, it inaccurately described the title of one of them. With regard to the time when the Acts were passed, the Judge at the trial amended the indictment by striking out the words stating such time. Held : 1 . That it was competent for the Judge to make such amendment as above stated. 2. That with rec^ard to the misdescription of the title of the statute, which was not amended at the trial, as the reference was made to the statute only to indicate that the petition was presented after the passing of such statute ; and as it was also alleged in the indictment that the petition was presented on the 20th Maij, 1859, being a day after such passing of which the Court was bound to take notice, the description of the title of the statute might be altogether rejected. _ Semble, that when the title of a statute is not correctly set out in an indictment, but is so described as to enable the Court to know with certainty what statute is referred to, no objection to the indictment on account of the variance would now be sustained. 194 CROWN CASES RESERVED. Case. 1859. is requested. In support of the preliminary averments WissTLEY's contained in the indictment, to the effect that the de- fendant was a trader within the meaning of the statutes relating to bankrupts, but owing debts amounting in the whole to less than 300^., and having resided for six calendar months next immediately preceding the filing of his petition within &c., the prosecutor pro- duced no other evidence than the petition of the de- fendant tiled in the Insolvent Court, a copy whereof is hereto annexed. There was no evidence of the Court for the relief of insolvent debtors having appointed the 22nd June for the first examination of the peti- tioner or of the adjournment of the same. Neither was evidence given of notice to creditors in The Lon- don Gazette of the filing of the petition. It was objected by the counsel for the prisoner that the evidence was insufficient to support the indictment. It was further objected that the prisoner could not be found guilty on the indictment by reason of the mis- recital of the Acts of Parliament in the introductory part of the indictment. I was requested by the counsel for the prosecution to amend the indictment by striking out those parts which appear in red ink (a) in the copy hereto annexed. It was objected, on the part of the defendant that I had no power to amend as prayed. I overruled the objection, and ordered the indictment to be amended as prayed. The defendant was found guilty, but I consented to reserve for the judgment of the Court for the Consideration of Crown Cases Re- served the following questions, Tiz. — 1st. Whether, under the circumstances herein ap- pearing, the evidence was suflicient to support a conviction. 2ndly. Whether the Court had power to amend the (a) In tliC copy hereafter set out those parts are in italics, within [ J. CROWN CASES RESERVED. I95 indictment as stated, and whether, as amended, it is 1859. sufficient. rpi . , „ , WesTLEy's ine conviction of the defendant is to be subject to ^<''^- the determination of the Court for Crown Cases Eeserved on these points. Defendant is in custody for want of bail, and judg- ment stands respited. JR. Malcolm Kerr, Judge of the Sheriffs' Court of the city of London. The indictment was as follows. The words appear- ing in red ink in the original are here printed in italics, within [ J. Central Criminal Court, to wit.] The jurors for our lady the Queen upon their oath present that here- tofore and after the passing and coming into operation of a certain Act of Parliament made and passed in a certain Session of Parliament holden in the fifth and sixth years of the reign of her present Majesty in- tituled " An Act for the relief of insolvent debtors" and after the passing and coming into operation of a certain other Act of Parliament [holden in the seventh and eighth years of the reign of her present Majesty} intituled "An Act to amend the law of insolvency bankruptcy and execution" and after the passing and coming into operation of a certain other Act of Parlia- ment [made and passed in the tenth and eleventh years of the same reign} intituled " An Act to abolish the Court of review in bankruptcy and to make alterations in the jurisdiction of the Court of Bankruptcy and Court for the relief of insolvent debtors" to wit on the twentieth day of May in the year of our Lord one thousand eight hundred and fifty nine Robert Westley hereinafter mentioned being a trader within the mean- ing of the statutes in force relating to bankrupts but owing debts amounting in the whole to less than 196 CROWN CASES RESERVED. 1859. 8001 and having resided for six calendar months next Westley's immediately preceding the time of filing his petition ^'^^°- hereinafter mentioned within the parish of Saint Mat- thew Beihnal Green in the county of Middlesex within the jurisdiction of the said Central Criminal Court the distance whereof is less than twenty miles from the Insolvent Court hereinafter mentioned according to the laws then in force relating to insolvent debtors did present his petition to the Court for the relief of insolvent debtors in England to wit at Portugal Street Lincoln's Tnn Fields and within the jurisdiction of the said Central Criminal Court the same petition having annexed thereto a schedule purporting to be a full and true schedule of his debts with the names of his credi- tors and other the particulars required bylaw and the said Robert Westley did thereupon in and by his said petition shew amongst other things to the said Court that he was a trader within the meaning of the statutes then in force relating to bankrupts but owing debts amounting in the whole to less than 300Z. that he the said Robert Westley had resided six calendar months within the district of the Insolvent Debtors Court in Portugal Street aforesaid and that he the said Robert Westley had become indebted to divers creditors whose names were inserted in the schedule to the said petition annexed and that he the said Robert West- ley was unable to pay his debts in full and the said Robert Westley was desirous that his estate should be administered under the protection and direction of the said Insolvent Court Whereupon he by his said peti- tion did pray such relief in the premises as by the statutes then and now in force for the relief of insol- vent debtors might be adjudged by the said Insolvent Court as by the said petition signed by the said Richard Westley on the said twentieth day of May in the year aforesaid in the presence of his CROA¥N CASES RESERVED. 197 attorney in the matter of the said petition duly veri- ] 859. fied by the affidavit of the said Robert Westley in the westkey's form in the schedule annexed to the said secondly re- ^'^^''• cited Act (A. No, 2) filed in the said Court for the relief of insolvent debtors reference being thereunto had will more fully and at large appear. And the jurors afore- said upon their oath aforesaid do further present that forthwith and after the filing of the said petition the said Court for the relief of insolvent debtors caused notice of the filing of the said petition to be given to the creditors of the said Robert Westley named in the said schedule and resident within the United Kingdom and whose debts respectively amounted to the sum of bl. to be inserted in the London Gazette and thereby appointed a public sitting of the said Court for the relief of insolvent debtors at Portugal Street aforesaid to wit on the twenty-second day of June in the year aforesaid for the first examination of the said peti- tioner and the said Court did duly to wit on the day and year last aforesaid proceed to the holding of the said sitting and then adjourned the same sitting to the fifteenth day of July in the year aforesaid to wit at Portugal Street aforesaid. Whereupon afterwards to wit on the said last mentioned day the said Court for the relief of insolvent debtors did proceed to ascertain the truth of the allegations in the said schedule and petition to the end that the said Robert Westley might have relief in the premises. And the jurors aforesaid upon their oath aforesaid do further present that to the end last aforesaid to wit on the day and year last aforesaid at the Insolvent Court aforesaid in Portugal Street aforesaid in the county aforesaid and within the jurisdiction of the Central Criminal Court the said Robert Westley did appear in his own proper person before the said Court for the relief of insolvent debtors then and there to be examined touching and concern- VOL. I. F 198 CROWN CASES RESERVED. 1859. ing the truth of the allegations contained in the said Westlet's petition and of the several matters contained in the ^^^^- said schedule and the said Robert Westley was then and there in due manner sworn before the said Court for the relief of insolvent debtors and did take his corporal oath upon the Holy Gospel of God to speak the truth and give true evidence on such examination and touching and concerning the allegations and mat- ters and the truth thereof and of and concerning all other matters in any way relating thereto the said Court then and there having sufficient and lawful competent power and authority to administer the said oath to the said Robert Westley in that behalf. And the jurors aforesaid upon their oath aforesaid do further present that the said Robert Westley being so sworn as aforesaid was then and there in due manner examined by and before the said Court for the relief of insolvent debtors on his said oath touching and concerning the truth of the allegations contained in the said petition and the several matters aforesaid. And the jurors afore- said upon their oath aforesaid do further present that at and upon the said examination it became and was a material question and subject of inquiry and it became and was a material question and subject of inquiry in the premises and in relation to the truths of the allega- tions contained in the said petition and of the several matters contained in the said schedule and it became and was material that the said Court should ascertain and be informed for the purpose of adjudicating in the matter of the said petition whether or not he the said Robert Westley had ever passed or was ever known by the name of Charles Westley and wTiether or not he the said Robert Westley had ever signed a certain memo- randum of agreement then and there upon the adjudi- cation of the said petition produced and shewn to him the said Robert Westley bearing date the thirtieth day of Augvst in the year of our Lord one thous9,nd eight Case. CROWN CASES RESERVED. 199 hundred and fifty two and purporting to be made 1859. between John Kidgell of the first part Samuel Gostage Wbstley's of the second part William Kidgell of the third part and Charles Westley of the other part and whether or not the said Robert Westley had negociated for the purchase of certain premises of and belonging to John Kidgell situate at Reading in the county of Berks in the name of Charles Westley and whether or not a cer- tain letter bearing date • April in the year of our Lord one thousand eight hundred and fifty three and produced and shewn to him upon the said exami- nation was in his handwriting. And the jurors afore- said upon their oath aforesaid do further present that the said Robert Westley being so sworn as aforesaid then and there upon his said examination at and before the said Court for the relief of insolvent debtors unlawfully wickedly wilfully maliciously falsely and corruptly did depose swear and say amongst other things in substance and to the effect following that is to say That he the said Robert Westley had never passed by the name of Charles Westley that he the said Robert Westley did not sign the said memorandum of agreement so produced and shewn to him as afore- said and that he the said Robert Westley believed the signature Charles Westley signed thereto to be in his the said Robert Westley s brother's handwriting and that he the said Robert Westley believed the signature to the said letter to be in his brother's handwriting Whereas he the said Robert Westley had passed by the name of Charles Westley. And whereas he the said Robert Westley did sign the said memorandum of agree- ment. And whereas he the ssad Robert Westley did not believe the signature Charles Westley signed thereto to be in his the said Robert Westley s, brother's hand- writing. And whereas the said Robert Westley did not believe the signature to the said letter to be in his p 2 200 CROWN CASES RESERVED. 1859. brother's handwriting. And so the jurors aforesaid Westlet's upon their oath aforesaid do say that the said Robert ^^^- Westley in so making and taking the said oath on the said eighteenth day of July in the year afore- said at Portugal Street in the county aforesaid and within the jurisdiction of the said Central Criininal Court before the said Court for the relief of insolvent debtors unlawfully knowingly wilfully and corruptly did commit and was guilty of wilful falsehood in man- ner aforesaid, against the form of the statute in such case made and provided and against the peace of our said lady the Queen her Crown and dignity. The petition referred to in the case was as follows : — To the Court for Relief of Insolvent Debtors. The humble petition of Robert Westley (here was inserted the description of the petitioner). Sheweth : That your petitioner is a trader within the meaning of the statutes now in force relating to bankrupts, but owing debts amounting in the whole to less than three hundred pounds. That your petitioner has resided six calendar months within the district of this Honourable Court : that is to say, for upwards of six calendar months last past at 72, Great Cambridge Street, Hackney Road, in the county of Middlesex. That your petitioner has become indebted to divers creditors, whose names are inserted in the schedule (A.) to this his petition annexed, and that he is unable to pay his debts in full. That your petitioner has examined the said schedule and that such schedule contains a full and true account of your 'petitioner's debts, and the claims against him, Avith the names of his creditors and claimants, and the dates of contracting the debts and claims severally, as nearly as such dates can be stated, the nature of CROWN CASES RESERVED. 201 the debts and claims, and securities (if any) given 1859. for the samfe, and that there is reasonable ground in Westlet's his belief for disputing so much of the debts as are ^''^'^' thereby mentioned as disputed, and also a true account of the nature and amount of his property, and an inventory of the same, and of the debts owing to him, with their dates, as nearly as such dates can be stated, and the names of his debtors, and the nature of the securities (if any) which he has for such debts; and that the said schedule doth also contain a balance sheet of so much of his receipts and expenditures as is required by this Honourable Court in that behalf, and doth fully and truly describe the wearing apparel, bedding and other such necessaries of your petitioner and his family, and his working tools and implements. That your petitioner has not parted Avith or charged any of his property (except for the necessary support of himself and his family, and the necessary expenses, not exceeding 5?., of this his petition, or in the ordinary course of trade) at any time within three months of the date of filing this his petition, or at any time with a view to this petition. That your petitioner is desirous that his estate should be administered under the protection and direction of this Honourable Court, and that he verily believes that such estate is of the value of £ [nothing] at the least unincumbered, and beyond the value of his wearing apparel, and other matter which your petitioner is authorized to except by this Act, and that the same is available for the benefit of his creditors. That your petitioner is ready and willing to be examined from time to time touching his estate and effects and to make a full and true disclosure and discovery of the same. Your petitioner therefore prays such relief in the premises as by the statutes Case. 202 CROWN CASES RESERVED. ] 859. now in force for the relief of insolvent debtors may Westi-ey's be adjudged by this Honourable Court. And your petitioner shall ever pray, &c., &c. Signed by the said petitioner on' the twentieth day oi May, 1859, in the presence of Thomas Angel, . of 41, Watling Street, London, at- ' torney or agent in the matter of the said petition. Thomas Angel (L.S.) Robert Westley. This case was argued, on 19th November, 1859, be- fore Pollock C. B., Williams J., Crowder J. Chan- NELL B. and Hill J. Pearce appeared for the Crown, and Metcalfe for the prisoner. Metcalfe, for the prisoner. — First, the indictment was not sustained by the evidence. The Court for relief of insolvent debtors is a Court created by the Legislature, and unless the requirements of the statutes under which that Court is constituted were complied with, it had no jurisdiction; and false swearing before it would not be perjury. The Court sits under the authority of 5 & 6 Vict c. 116.s. l.,7&8 Yict. c. 96. ss. 1, 2, 3, and 10 & 11 Yict. c. 102. s. 6. The pre- liminary matters necessary to give jurisdiction to the Court are alleged in the indictment, namely that the prisoner was a trader within the meaning of the statutes in force relating to bankrupts, but owing debts amounting in the whole to less than 300/., and had resided in the district as therein mentioned. There was no proof of these preliminary matters on the trial. The petition of the prisoner alleging these circumstances is not sufficient evidence of them. The indictment then goes on to allege that the Court caused notice of the filing of the petition to be given CROWN CASES RESERVED. 203 to creditors in The London Gazette, and thereby ap- 1859. pointed a public sitting on the 2 2d June. None of '~ZZZ^<, these matters were proved. Case. The 3rd section of 7 & 8 Vict. c. 96. enacts that the Commissioner authorized to act in the matter of the petition shall cause notice of the filing thereof to be given, and appoint a public sitting for the exa- mination of the petitioner. The allegation of the ap- pointment of the sitting was therefore material, and there was no proof whatever of it. Assuming then that the prisoner swore falsely, he did so in a pro- ceeding coram non judice, and is not indictable for perjury. Pollock C. B. — Suppose that this matter had taken place at the Central Criminal Court, which now sits by Act of Parliament upon certain days appointed by the Judges, would you say that it would be neces- sary to prove that the Judges had met together and appointed certain days, and that on those days the Court was regularly adjourned ? That Court is quite as much the creature of a statute as this. Or suppose a person indicted for perjury, committed before the House of Lords, would it be necessary to prove Her Majesty's proclamation for the assembling of Parlia- ment? Metcalfe. — Probably not. As to the Central Criminal Court, the appointment of days is a general rule for all cases ; but a special appointment must be made in the case of each insolvent. An indictment for a con- spiracy to defraud creditors of a bankrupt, against whom a commission had issued de facto, was in Bex v. Jones (a) held bad for not alleging that the party had actually become bankrupt. Pollock C. B. — Under the old law the jurisdiction (a) 4 B. & Ad. 345. Case. 204 CROWN CASES RESERVED. 1859. of the Commissioners was founded entirely upon the Wistj.et's fact of the party having become bankrupt. Metcalfe.— The words of section 40 of 7 & 8 Vict, c. 96. are, that if any person who shall take an oath " under or in pursuance of" the Act, shall be guilty of wilful falsehood, he shall be subject to the same pains as a person convicted of perjury. Hill J. — Authority is expressly given to the Com- missioner to inquire into the matter of the petition. Metcalfe. — Yes; but the prisoner is indicted for perjury in respect of evidence given at an adjourn- ment, and it was essential to allege and prove that such adjournment was pursuant to the Act. Upon an indictment against a bankrupt, under sect. 253 of the 1 2 & 13 Vict. c. 106. j for obtaining goods on credit, it was held essential to prove, not only the petition to and adjudication by the Court of Bankruptcy, but also the* preliminary matters, namely the petitioning creditor's debt, the trading, and the act of bankruptcy ; Regina v. Lands (a). Williams J. — There the offence could not be commit- ted unless the person charged was bankrupt. In this case why would it not have been sufficient to allege simply that the perjury was committed before the Court for relief of insolvent debtors? This Court would presume that that Court was sitting under proper authority. Pollock C. B. — This is an indictment for false swearing in the Court for relief of insolvent debtors, upon a matter material to the inquiry. It would have been sufficient to allege that the Court had autho- rity to administer the oath, and these allegations might be struck out altogether. The Court for relief of insolvent debtors is a Court of record, and when it sits we must presume that it sits under due authority. (a) Dears. C. C. K. ^67. CROWN CASES RESERVED. 205 Metcalfe. — It was not competent for the Judge to 1359^ make the amendments obiected to. ~, r~ Pollock C. B.— We think it clear that the Judge Case. could amend. Metcalfe — Supposing that to be so, the title of 10 & 11 Vict. c. 102. is still incorrectly stated. Instead of " Court of Bankruptcy and Court for the relief," as stated in the indictment, the words of the title of the Act are " Courts of Bankruptcy and Court for relief." This variance is fatal. Variances as small have been so held; Boyce v. Whitaker (a), Beck v. Beverly (b), Bex v. Marsack (c). Pearce, for the Crown, was not called upon. Cur. adv. vult. The judgment of the Court was delivered, on 26th November 1859, by Pollock C. B. — The first question raised in this case, and argued by the counsel for the prisoner, was, whether the allegations in the indictment " that the prisoner was a trader owing debts less than 300^., and that he resided," &c., were sufficiently proved by the production of the petition, signed by the prisoner, and presented by him to the Insolvent Court. That petition alleges the very same matters as facts, upon the truth of which, with others, the prisoner rested his application to the Insolvent Court. As against him, therefore, the statements, in the petition, uncon- tradicted by any conflicting testimony, were abundant evidence to prove these allegations in the indict- ment. The second objection argued by the prisoner's coun- sel was, that no evidence was given at the trial to prove the allegations in the indictment " that notice of the (a) 1 Dougl. 94. (b) 1 1 Mee. & W. 845. (c) 6 T. K. 771. 206 CROWN CASES RESERVED. 1859, petition was inserted in the Gazette, and that a day Westlbt's ""^^'^ appointed for the first examination of the prisoner, Case. and that the sitting on that day was adjourned to the 15th day oi July ;" and it was contended on behalf of the prisoner that these allegations were material, and that, as they were not proved, the Court had no juris- diction to hold the examination so as to make the prisoner criminally responsible for having wilfully sworn that which was false. It was proved that the petition of the prisoner was filed in the Insolvent Debtors Court, and by the com- bined efi"ect of the statutes 7 & 8 Vict. c. 96 and 10 & 11 Vict. c. 102., that Court, upon the petition being filed, had jurisdiction to institute the examina- tion upon which the prisoner swore falsely. The Insolvent Debtors Court is a Court of record ; we must take notice of that fact, and must presume that its sittings in a matter within its jurisdiction were lawfully and rightfully holden. The indictment contains a general allegation " that the Court had sufiicient and lawful competent power to administer the oath to the prisoner in his examina- tion touching and concerning the truth of the matters contained in the petition and schedule;" that, in our opinion, is quite sufiicient to support the indictment (14 & 15 Vict. c. 100. s. 20.), and the allegations, of which no proof was ofifered at the trial, may be rejected. The last objection raised was that the Judge who presi- ded at the trial had not power tomake an amendment by striking out certain words, inaccurately describing the time when certain statutes passed ; but that, even if he had such power, the amendment did not go far enough, as the title of the statute 10 & 11 Vict. c. 102. still remained incorrectly set out, inasmuch as the wor^ " Courts" was written " Court," and the description. CROWN CASES RESERVED. 207 Case. "Court for relief of insolvent debtors," was written 1859. " Court for the relief of insolvent debtors." Westle^ With respect to the first part of the last objection, it was not much insisted on, and during the argument we expressed our opinion that the Judge had power to amend ; but with regard to the latter part of the objection, that the title of 10 & 11 Vict. c. 102. was inaccurately described, it was argued that as the indictment professed to set out the title of the statute in hcec verba, and failed to do so accurately, the vari- ance was fatal ; and many authorities were referred to in support of the objection. It is unnecessary for the Court to examine their applicability, or whether a variance in such minute particulars is material, be- cause, on reading the indictment, it is manifest that the reference is made to the statute only to indicate that the petition of the prisoner to the Insolvent Debtors Court was presented after the passing of that Act. There is, however, in the indictment a sufficient allegation of time when the petition was presented, viz. 20th May, 1859, being a day after the passing of the Act, of which we are bound to take notice, so that the reference to the statute in the indictment may be altogether rejected. This objection, therefore, also fails, and the conviction must be affirmed. His Lordship then added. — What I am about to state is no part of the judgment which I have given, but my own opinion, though I believe it to be the opinion of every member of the Court also. In a case where the title of an Act of Parliament is not accurately stated, but is stated with so much clearness and accuracy as to enable the Judges, who know the titles of all the Acts that have ever been passed, to know the Act referred to, and to leave no possible doubt on their minds upon the matter, I must say I, for one, notwithstanding the cases that were cited, 208 CROWN CASES RESERVED. 1859. Westley's Case. sitting in this Court, am prepared to hold that a varia- tion so small and insignificant furnishes no ground of objection. And I am not prepared to apply the doctrine that has been laid down in the cases that have been cited. Conviction affirmed. 1860. EEGINA V. THOMAS GOSS. The prisoner was con- victed on an indictment for obtaining money by false pre- tences. It appeared that the pro- secutor bought of the prisoner The following case was reserved by the Recorder of Northampton. The prisoner Thomas Goss was tried before me, at the last Michaelmas Sessions for the Borough of Northampton^ for obtaining money by false pretences. The first count of the indictment stated that the prisoner, having in his possession divers pounds weight of cheese of little value and inferior quality, and con- and paid him triving and intending to cause it to be believed that for eight °. ° cheeses upon the Said chcesc was of good flavour and excellent sen^tadorf bT" ^.^^^^^J) ^""^ ^^^^ having in his possession divers pieces of cheese called " tasters" of good flavour, taste, and quality, and contriving and intending .to cheat one Thomas Roddis out of his money, then and there unlawfully, knowingly and designedly, did falsely pre- tend to Roddis, that the said pieces of cheese called cheesfs which " tasters," which he Thomas Goss then and there de- he offered livcrcd to Roddis, were part of the said cheese the for 33.16 _^ whereas they Said Tliomas Goss then ofi'ered for sale, and that the had not been / „ so extracted Ot'tt£\^ but were in fact part of another and iBferios cheese. Held, that the false representation made by the prisoner was an indictable false pretence, and that the conviction was right.* him that certain " tasters " which he prO' duced had been ex- tracted from and were * See next case. CROWN CASES RESERVED. 209 said cheese was of good and excellent quality, flavour 1S60. and taste, that every pound weight was of the value goss's of fourpence halfpenny; by means of which said false ^^'^• pretence, the said Thomas Goss did then and there unlawfully and fraudulently obtain of and from the said Roddis the sum of three pounds nineteen shil- lings and sixpence, with intent to cheat and defraud him of the same, whereas the said pieces of cheese which the said Thomas Goss delivered to Roddis, were not part of the said cheese which the said Thomas Goss offered for sale, and whereas the said cheese which the said Thomas Goss offered for sale was not of good and excellent quality, flavour and taste, and whereas every pound weight of the said cheese was not of the value of fourpence halfpenny, which the prisoner well knew. The second count of the indictment was in the same form as the first, excepting that it did not charge that the prisoner designated the samples as "tasters," and that it contained and negatived an additional false pretence, that the cheese offered for sale was of the same quality, flavour and taste as the samples. The third count stated that the prisoner had in his possession divers pieces of cheese with intent to defraud, and delivered the same to Roddis, and un- lawfully, &c., did falsely pretend to him that they were and had been taken from and were and had formed part and portion of certain cheeses which the prisoner then and there offered for sale, by means of which, &c., the prisoner did unlawfully, &c., obtain, &c., with intent to defraud, &c., whereas, &c., nega- tiving the pretence. The fourth count stated that the prisoner unlaw- fully, &c., did falsely pretend to Thomas Roddis that certain pieces of cheese, which he then and there de- 210 CROWN CASES RESERVED. 18G0. livered and exhibited to Roddis, were and had been Gos?s taken from, and were and had formed part and por- Case. tion of, certain cheeses which the prisoner then and there offered for sale to him, by means of which, &c., the prisoner did then and there obtain, &c., with intent, &c., whereas, &c., negativing the pretence. It was proved at the trial that the prosecutor, Thomas Roddis, on the 19th September last, was attending the cheese fair, held within the borough of Northampton, and that the prisoner was in the fair, and sold to the prosecutor eight cheeses, weighing one hundredweight three quarters and one pound, for which the prosecutor paid the prisoner the sum of three pounds nineteen shillings and sixpence, being at the rate of fourpence halfpenny per pound. On the prosecutor going into the fair, the prisoner offered to sell him the eight cheeses, and bored six of them with a cheese scoop, and then produced and offered to the prosecutor several pieces of cheese which are called " tasters," successively at the end of the scoop for the prosecutor to taste, and in order that he might taste them as being respectively samples and portions of the six cheeses which the prisoner had bored; and accordingly the prosecutor did taste them, and then offered the prisoner fourpence halfpenny per pound for the eight cheeses which the prisoner accepted; the tasters, however, had not in fact been extracted from the cheeses offered for sale, for after the prisoner had bored the cheeses, and before he handed the tasters to the prosecutor, he took from his coat pocket pieces of cheese of better quality and description than those taken from the cheeses which he had bored, and privily and fraudulently put these pieces of cheeses at and into the top of the scoop for the prosecutor to taste, and the cheese which the prosecutor did taste was not any portion of the six cheeses which the pri- CROWN CASES RESERVED. 211 soner bored. The prosecutor at the time he bought the i860, eight cheeses, believed that he had been tasting a por- g^^^.g — tion of those cheeses, and in that belief he bought Case. them, and paid the prisoner the three pounds nineteen shillings and sixpence for them which he would not have done, unless he had believed that the tasters had been extracted from the cheeses which he so bought. The cheeses were delivered to the prosecutor, and he retained possession of them up to the trial. The value of the eight cheeses would be about three- pence per pound. The prisoner's counsel at the trial objected that there was no evidence to support the indictment, or of any facts which would constitute a false pretence within the statute. I left the case to the jury, and the prisoner was convicted ; but, having some doubt as to whether the case of Regina v. Ahhott (a) had not been shaken by subsequent decisions (See Regina v. Bryan (6) ), I reserved the case for the opinion of the Court of Appeal. John H. Brewer. This case was argued, on 21st January 1860, before EeLE C. J., WiGHTMAN J., WiLLIAMS J., WatSON B. and Hill J. No counsel appeared for the prosecution. C. G. Mereweiher, for the prisoner. — This case is precisely the same as Regina v. Abbott (a), which was decided upon the authority ot Rex v. Kenrick (c). It was reserved in consequence of the remarks of some learned Judges on the case of Regina v. Abbott (a), and unless that case can be impeached this conviction must no doubt be upheld. That case has gone further than any which has been brought before this Court, (a) 1 Den. C. C. R. 273. (J) Dears. & Bell's C. C. K. 265. (c) 5 Q. B. 49. 212 CROWN CASES RESERVED. 1860. and has consequently not been subject to actual re- Goss's view. Two things must concur to render a person ^^^' liable to conviction under the statute — he must make a false pretence, and he must, by that false pretence, obtain the chattel. The difficulty which is felt in the case of contracts arises upon the second point; because in those cases, as Parke B. says in Regina v. Burgon (a), " the prosecutor gets a quid pro quo in part for his money," and it is impossible to say that the fact falsely pretended was the soleveasan for parting with the money. It is indeed questionable whether it be any reason; the contract is entered into by reason of the false pre- tence, but the money is paid in pursuance of the con- tract, and in return for goods actually delivered. In the ordinary case to meet which the statute was passed, of a representation that goods are sent for by a parti- cular individual, the prosecutor delivers the goods to the prisoner solely on account of the false pretence ; but in a case like the present he pays the money because he has got possession of an article which he has contracted to purchase in consequence of a false- hood. The question turns upon the words of the statute; and it is submitted that a falsehood, uttered preliminary to a contract, is not, within its meaning, the pretence by which the money is obtained. In Regina v. Roebuck (b), Lord Campbell C. J., after giving his reasons for thinking the conviction in that case right, says, "At the same time I think it right to say that although the defence seems to me untenable, that there can be no false pretence within the statute if it be made in the course of a contract, I should have been very loth to concur in the doctrine which was laid down obiter in Rex v. Kenrick and acted upon in Regina v. Abbott ; and I should have (a) Dears. & Bell's C. C. R. 22. (ft) Dears. & Bell's C. C. R. 24. CROWN CASES RESERVED. 213 been inclined to adhere to the decision of Litiledale J. 1860. in Bex V. Codrington (a). — (wT"" In Eegina v. Eagleton (b) the authority of Begina v. ^"'^• Abbott and Bex v. Kenrick was disputed in the course of the argument, and Parke B., in a considered judg- ment in that case, said, " If this had been a case of a sale of bread to the prosecutors, with a false repre- sentation of the weight, and an attempt thereby to receive a larger price than was really due, we should have had to decide whether an indictable offence had been thereby committed, and should have had to con- sider the case oi Bex v. Kenrick and Begina v. Abbott." In Begina v. Bryan (c) the false pretence charged was that certain spoons were of the best quality ; that they were equal to Elkingtons A (meaning spoons made by Messrs. Elkington, and stamped by them with the letter A) ; that the foundation was of the best material, and that they had as much silver upon them as Elkington' s A. The jury found that these repre- sentations were wilfully false, and that by means of them, a loan was obtained, and it was held by ten learned Judges (Willes J. dissentie?ite, andBRAMWELL B. dubitante^) that the conviction was wrong, the case being that of a mere misrepresentation at the time of sale of the quality of the goods. WiGHTMAN J. — Here the false representation was that the sample was part of the same cheese. Merewether — Yes; but that is preliminary to making the contract of purchase. The authority of Begina v. Abbott and Bex v. Kenrick was considered in Begina V. Sherwood {d), but there the false representation was as to the quantity, not the quality of the articles sold. Erlb C. J. — The five Judges, who to-day constitute (a) ] Car. & P. 661. (c) Dears. & Bell's C. C. R. 265. (J) Dears. C. C. U. 515. (d) Dears. & Bell's C. C. R. 251. VOL. I. Q 214 1860. Goss's Case. CROWN CASES RESERVED. this Court, are prepared to come to the same decision as was arrived at in Regina v. Abbott; some of them would have come to that decision, if the matter were res integra, and the rest of the Court are prepared to act upon it; but, before giving judgment, we will hear the case of Regina v. Joseph Ragg^ in which a similar question is involved. (See judgment at the end of the next case, page 217). Conviction affirmed. 1860. EEGINA V JOSEPH RAGG. appeared that the The prisoner 'j^j, following case was reserved by the Deputy was con- ri ■ r^ ir j yicted on an Chairman of the General Quarter Sessions of the indictment t> ^ j.\ j. c t • j for obtaining -t eacc lor the couutj 01 Leicester. money by Joseph Raqq was tried before me at the General false pre- r\ a • tences. It Quarter Sessions of the peace for the county of Leicester, held on the 3d day of January, 1860, for obtaining money under false pretences from Henry Harris. The indictment stated the pretence to be a false pretence as to the character and weight of a quantity of coals sold and delivered by the prisoner to the prosecutor. It appeared in evidence as follows : — The prisoner was a coal-dealer. On the twenty- eighth day of November, he called at the house of the prosecutor in Loughborough^ with a load of coal in a cart, and inquired if he (the prosecutor) wanted to buy a load of '■''Forest'^ coal. The prosecutor replied prosecutor bought of the prisoner and paid hiin for a quantity of coal upon a false repre- sentation by him that there were 14 cwt., whereas in fact there were only 8 cwt. ; but so packed in the cart in which they were as to have the appearance of a larger quantity. Held, that the false representation as to the quantity of the coal was an indictable false pretence, and that the conviction was right.* * See last case. CROWN CASES RESERVED. 215 that the coals did not look like Forest coal, because 1860. they looked so dull. The prisoner replied, " I assure ragg's you they are Forest coal, and the reason of their look- c^^^- ing so dull is because they have been standing In the rain all night; there is 15 cwt. of them, for I paid for 14 cwt. at the coal pits, and they gave me 1 cwt. in." On this, the prosecutor bought the coal and paid 7s. 6^. for the load. The prisoner unloaded the cart and packed the coals in the prosecutor's coal place; when the prosecutor saw the coals in the coal place, they appeared to be much too small a quantity to weigh 15 cwt. and he had them weighed, when it was found that they weighed 8 cwt. only. The prisoner had at this time received his money, and gone away, but the prosecutor went after him, challenging him with the fraud, and asking for re- dress; the prisoner, however, refused to make any stating, " that he did not make childish bargains, and that the prosecutor could not do anything to him, because he had not sold the coal by weight, but by the load." The prosecutor stated that he had bought the coal on the representation of the prisoner that there were 15 cwt., and the size of the cart, and the appear- ance of the coal therein, warranted the belief that there were 15 cwt., but it turned out that the coal was loaded in a particular manner, technically known as '■'■ Tunnelling," ih&t is, the coal (which is in large lumps) is so built up in the cart, that one lump rests on the edges of that below it, and large spaces are left between the lumps of coal, and thus there is an appearance of a greater quantity of coal than there actually is. From further evidence it appeared that the coal was not Forest coal at all, and had not been bought at the pits, but was Rutland coal, and bought, that same morning, at a wharf in the town of Loughhorough ; Q 2 216 CROWN CASES RESERVED. 1860. that the cart, when loaded at the wharf, had weighed Kagg's 8 cwt. only, and, although the prisoner stated that ^^^^- other coal had been added to it from another cart- load purchased at the same time from the wharf, there was no evidence of this produced at the trial. It further appeared, that on the same day, and a very short time before the coal was sold to the prose- cutor, the prisoner had offered the same load to ano- ther person as containing 13 cwt., but on looking at the cart it was evident that the coal was " Tunnelled," and the prisoner was then and there challenged with the fact, and told that there was not above 8 cwt. in the cart, or 10 cwt. at the most. The prisoner was not defended by counsel, and the jury found him guilty. With respect to the false pretence as to the " cha- racter" of the coal, it appeared to me, on inquiring of the witnesses, that there was not much real difference in value between the Forest coal and the Rutland coal ; and that the preference of one over the other was rather according to the idea of the customer, than the actual value of the article; and I should not have con- sidered it a case of false pretences under the statute, had this been the only misrepresentation ; but I con- sidered that the evidence shewed, not merely a false statement as to the quantity, but a pre-conceived in- tention to defraud, and a mode of packing the coal resorted to for the purpose. of fraud, and that therefore the jury properly found the prisoner guilty. On re- ferring, however, to the case of The Queen v. Sher- wood (a), I found that some of the learned Judges who gave judgment therein had apparently drawn a distinction between the case of a false representation made during the bargaining, and that made after the- sale was completed ; and in the present case, " as the (a) Dears. & Bell's C. C. R. 251. CROWN CASES RESERVED. 217 false pretence was made in the course of the progress of I860. a sale," I did not feel justified in sentencing the ragq's prisoner, until the subject had come under the con- ^^'^• sideration of the Judges. I therefore postponed the sentence, and directed that the prisoner might be liberated on bail, to appear and receive sentence at the next Easter Sessions. Henry J. Hoskins, Deputy Chairman. This case was considered on 21st January, 1860, by EelE C. J., WiGHTMAN J., WiLLIAMS J., WaTSON B. and Hill J., immmediately after the argument in Regina v. Goss {ant^, p. 208). No counsel appeared, and the judgment of the Court in both cases was delivered by Eele C. J. — We are all of opinion that the convic- tion in each of these cases was right. In the case of Joseph Ragg there was a false repre- sentation that there were 15 cwt. of coals in the cart when there were only about 8 cwt., so that, as to 7 cwt., there was a pretence of a delivery which was altogether false, and although the falsehood related only to a part of the entire quantity to be delivered, yet, as to that part such a case has been held to be within the class where payment for goods is obtained by a pretence of a delivery which is false as to the entire quantity that was to have been delivered. This is a false pretence of a matter of fact cognizable by the senses. In the case of Thomas Goss there was also a false pretence of a matter of fact within the cognizance of the senses ; for, by a sample, which was represented to be part of the very cheese to be sold, but which was part of a cheese altogether different both in sub- stance and value; he induced the purchaser to buy Case. 218 CROWN CASES RESERVED. 1860. the inferior cheese. That was a false pretence as to Ragg's the substance of the article for sale, by which the pri- soner was enabled to pass off a counterfeit as and for the genuine substance. In the case of Regina v. Roebuck (a) a false pre- tence, that a chain of base metal was a chain of silver, Was held indictable. So here the drawing from the prisoner's pockgt samples from another cheese, not the cheese intended for sale, and falsely pretending to the purchaser that those samples were part of the substance which he was to buy, is equally an indictable offence, and falls within the class of cases where there is a false pretence made in respect of the substance of the article offered for sale; where the purchaser intends to buy a particular substance, and the seller passes off to him a counterfeit. The same principle governs Regina v. Abbott, which is identical in its facts with the present case, and Regina v. Dundas (b), where the article sold was falsely pre- tended to be Everett's blacking, a known article of value in the place of the sale, and was a totally different thing. In the case of Regina v. Bryan, the case of the plated spoons represented as equal to Elkington's A, the Judges who constituted the majority decided that case on the principle that indefinite praise upon a matter of opinion is not within the limit of indictable offences. Dissatisfaction has been expressed with that deci- sion as if it must operate as an encouragement to falsehood and fraud, and so lead to mischief; but it should be recollected what an extremely calamitous thing it is for a respectable man to have to stand his trial at a criminal bar upon an indictment brought against him for cheating by a false pretence at the (a) Dears. & Bell's C. C. R. 24. (i) 6 Cox's C. C, 380. CEOWN CASES RESERVED. 219 instance of a dissatisfied purchaser. It is easy for an 1800. imaginative person to fall into an exaggeration of 'YHd'a praise of the article which he is selling, and if such t!ase. statements are indictable a purchaser, who wishes to get out of a bad bargain made by his own negligence, might have recourse to an indictment, on the trial of which the vendor's statement on oath would be ex- cluded, instead of being obliged to bring an action where each party would be heard on equal terms. ' It is of great public importance to endeavour to de- fine the line within which false representation becomes indictable. In Regina v. Bryan, my brother Willes, who de- serves well of all who take interest in the administra- tion of the law, dififered from the majority in the deci- sion ; he agreed in the principle that ought to govern, but difiiered in the application of that principle to the facts of that case. The Judges thought the represen- tation " that the quality of the plating of the spoons, and the quantity of silvering laid on them by the electrotype process, was equal to Elkington's A, and that the material was the best," was exaggerated praise on a matter of opinion, and so not indictable; opinion not being directly cognizable by the senses. My brother Willes thought it a representation on a matter of fact. WiGHTMAN J. — I only wish to add with reference to the cheese cases and Bryants case one observation. If the prisoner had said that the cheeses were equal to the tasters produced that would have fallen within Bryan's case; but he said to the prosecutor "These tasters are part of the very cheese I propose to sell to you ;" and therefore it was a representation of a defi- nite fact. The other learned Judges concurred. Conviction affirmed. 220 CROWN CASES RESERVED. 1860. REGINA V. WILLIAM LESLEY. The defend- ant was con- victed on an indictment charging him with assault- ing the pro- secutors on the high seas, and falsely- imprisoning and detaining them. The prose- cutors were The following case was reserved by Watson B. The prisoner was the master of the British ship Louisa Braginton, and the charge against him was for the false imprisonment of several Chilian subjects from Valparaiso to Liverpool. These persons, having been ordered to be banished from Chili by the government of that country, were brought by force, guarded by soldiers of that state, on board the ship, whence the prisoner, under a con- Chiiian sub- tract (a copy accompanies this case) with the Chilian jectsandhad • i i i xi r^i-i- t been ordered government, carried and conveyed these Lnilian sub- g^vtrnment J^CtS tO Uverpooi of Chili to be banished from that country to England. The defend ant, being master of an English mev- chant vessel lying in the territorial waters of Chili near Valparaiso, contracted with the Chilian government to take the The evidence, and an abstract of the indictment, accompanies this case. On this evidence I directed a verdict of guilty, reserving the question of law, whether or not the defendant was liable to an indict- ment in this country under the circumstances, for the opinion of this Court. W. H. Watson, Absteact of Indictment. Indictment for assaulting Benjamin Vicuna Mac Kenna, Angel Custodio Gallo., Manuel Antonio Matta and Guillermo Matta., on the 10th March 1859, on the J)rosecutor3 fromVcdparaiso to Liverpool; and they were accordingly brought on board the defend- ant's vessel by the officers of the government and were carried by the defendant to Lioerpool under his contract. Held, that, although the conviction could not be supported for the assault and impri- sonment in the Chilian waters, it must be sustained for that which was done out of the Chilian territory ; and that, although the defendant was justified in receiving the prose- cutors on board his vessel in Chili, yetthat justification ceased when he passed the line of Chilian jurisdiction, and the detention of the prisoners and conveying them to Liverpool was a wrong intentionally planned and executed in pursuance of the contract, amount- ing to a false imprisonment and triable by English law. CROWN CASES RESERVED. 221 high seas, and falsely, and without legal authority or i860, justifiable cause, imprisoning and detaining them for ^'^^^^^~ ninety-eight days then next following. Case. 2d count. Common assault on them. 3d count. Like first, but confining it to Benjamin Vicuna Mac Kenna. 4th count. Common assault on him. 5th count. Like first, but confining it to Angel Custodio Gallo. 6th count. Common assault on him. 7th count. Like first, but confining it to Manuel Antonio Matta. 8th count. Common assault opi him. 9th count. Like first, but confining it to Guillermo Matta. 10th count. Common assault on him. 1 1th count. Attempting to assault Benjamin Vicuna Mac Kenna, and thereby to occasion him grievous bodily harm. 12th count. Like, Angel Custodio Gallo. 13th count. Like, Manuel Antonio Matta. i4th count. Like, Guillermo Matta. 15th count. Conspiring with others unknown, vio- lently and against the consent of the said Benjamin Vicuna Mac Kenna, Angel Custodio Gallo, Manuel Antonio Matta and Guillermo Matta, to carry and con- vey them on board a British ship called The Louisa Braginton, from the port of Valparaiso, across and upon the high seas to the realm of England, and to force and compel them to be and remain, without and against their consent, on board the said ship on the high seas and during the voyage, and unlawfully to imprison and detain them on board the said ship during the said voyage, and upon the high seas. That in pursu- ance of such conspiracy the said persons unknown brought the said Benjamin Vicuna Mac Kenna, Angel 222 CROWN CASES RESERVED. , 1860. Custodio Gallo, Manuel Antonio Matta, and Guillermo Lesley's Matta, and caused them to be violently, and against ^^^®- their wills and without their consent, brought to and on board of the said ship, which was then lying in the port of Valparaiso and on the high seas. That pri- soner, in pursuance of the said conspiracy, then received and took them on board the said ship, he being then the master and commander thereof, it being then a British ship and within the jurisdiction of the Admiralty, and prisoner knowing that they were so brought on board against their wills and without their consent. That prisoner, in pursuance of the said conspiracy, caused the ship with them on board to leave the port of Val- paraiso and proceed on her voyage to England, and to sail across the high seas, and to bring them, against their will and without their consent, across the high seas to a port in England, to wit the port of Liverpool. 16th count. Conspiring with others unknown, vio- lently and against the consent of the said Benjamin Vicuna Mac Kenna, Angel Custodio Gallo, Manuel Antonio Matta and Guillermo Matta, to carry and con- vey them on board a British ship called The Louisa Braginton, from a port beyond the seas, to wit the port of Valparaiso, across and upon the high seas to the realm of England, and to force and compel them to be and remain, without and against their consent, on board the said ship on the high seas and during the said voyage, and unlawfully to imprison and detain them on board the ship during the voyage and upon the high seas. Evidence, Benjamin Vicuna Mac Kenna. — I am a Chilian, and until recently I was the editor and proprietor of a news- paper published at Santiago, which is the capital and the seat of the government. In December, 1858, there was some political difference with the government. Case. CROWN CASES RESERVED. 223 There was a general meeting held at Santiago on I860, the 8th of December 1858. "^Lesley's We were surrounded by troops and taken to prison in Santiago with many others, and amongst them the three gentlemen present. Two of them are members of the House of Representatives. There are about sixty members altogether. We remained in prison about three months. On the night of the 8 th of March we were taken to Valparaiso as prisoners. The distance is ninety miles. We were thirty hours on the road. We arrived in Valparaiso on the night of the 9th March last, still as prisoners. When we got there we were taken to the wharf. The troops came all the distance, and surrounded the carriage. The ship Louisa Braginton was about a mile from the wharf, and two officers and four soldiers, with loaded guns, took us on board. I saw two sol- diers and the chief officer come on deck, and two remain below. I heard the chief officer speak to the captain in Spanish. He mentioned our names, and pointed us out. The crew consisted of about thirteen men. A brother of mine was allowed by the autho- rities to come and see me, and also some other friends. We did not know where we were going to, but we had our suspicions. My brother wanted me to go on board of a man of war (a foreign one), but I said I would not do so as there were armed boats around the ship, and I wished to abide the fate of my friends. The ship was ready to go to sea. The captain afterwards told me the ship had been waiting three days, and that he had received fifty dollars a day for waiting. A war steamer towed the ship out ten miles and escorted her till daybreak. The ship sailed in three hours after I got on board. 1 was only allowed 224 CROWN CASES EESERVED. 1860. to speak to my friends in the presence of an officer. Lesmy's We afterwards spoke to the captain, and we told him Case. J^Q.^y y^Q stood. We told him he had no right to take us as prisoners to England; that the English flag protects every one. We said it was unlawful and shameful, that he was paid four times more than for ordinary passengers, and that it shewed he was in a criminal aflfair. We also said, Now is the time to amend your wrong, take us to Peru, which is very near ; we will pay you the amount the government pays you, and will give you our private provisions; the question of money is no question for us. The captain replied that he was uilder a contract with the Chilian government, and was under a penalty of 1500 dollars for putting us in at Liverpool, and that he must do it. We then re- solved to submit to our fate, hoping that our wrongs would be satisfied in England. This is all that occurred, as near as I can recollect. I often told him of the roughness of his conduct, and that it was worse than the slave-trade. He said many times that it was capital business, and that if we would pay him well he would take the president of Chili to the Cape Horn. When at the Azores I saw the carpenter making holes in the gig and small boats. We landed at Liverpool on the morning of the 15th oi June; soon afterwards we went to Messrs. North and Simpson, and stated our case. Cross-examined. There was a boy named Isaac Matta on board, about eleven years of age ; he was not a prisoner ; he Avas the brother of one of the gentlemen who was a prisoner. The father paid the passage-money for the boy, Several of our friends (relations) came to see us. One of them in baste provided us that day CROWN CASES RESERVED. 225 with the provisions for the voyage. When I got on 1860. board I did not say I was glad to get out of the hands Lesley's of those insulting villains. I did not say I was ex- ^''^^■ tremely glad to get away, or any thing like it. I did not know the vessel was going to England. I heard a whisper to that eflFect from the passengers. I did not make any protest on the night we were received about the captain receiving us. If the captain had offered to give us back to the oflScers, I do not know whether I would prefer going back with them or to go round the Horn ; I perhaps would prefer remain- ing in my own country. I did not ask to be landed at Valparaiso. I would have preferred going back to Chili, as T did not know where we would be taken to. I do not know whether I would like to have remained with those armed men or not. I first spoke to the captain about putting us on shore the next day, ' the 11th. We were sick on the first day. Arica is to the north of Valparaiso about 6°, or about 400 miles. We were about the longitude of Juan Fernandes. We saw it on the 12th. I did not ask to be put on shore there, as we had made up our minds to go to Liver- pool. After that we made no application to be put ashore. I asked the captain to put us ashore at Arica; he said he would vitiate the policy of insurance and the terms of the charter-party. I told him that any question of money was of no importance to us. The captain tipped me on the shoulder one night, and asked me what we were going to do, and asked me whether we intended to leave the ship. He said I know you intend to leave the ship ; if you kick, I'll kick. I do not know the precise meaning of those words. William Hortop. — I was mate of the Louisa Bragin- ton. I remember a conversation with the captain before she left Valparaiso. He said he had entered into Case. 226 CROWN CASES RESERVED. ^8^0- arrangements to take home a certain quantity of Lesley's political prisoners ; that was about twenty days before they came. The ship was receiving cargo at that time ; we were waiting for them. I do not know that the captain was detained on their account, but I believe there was a kind of demurrage if they did not come within a certain time; I made an entry in the log about it. I remember their coming on board. They were brought in armed boats, and received on board by a guard of soldiers, who came before them in one boat. The captain was there. The captain gave me a pistol before we left Val- paraiso. I was to use it whenever anything wrong occurred. That was before the men came on board, but after the time the captain told me they were coming. He had not given me a pistol before on the voyage out. When we had been about a day out, the captain de- sired me to load the pistol ; that was after coming out of the cabin, after seeing the men he had taken on board. At the Azores, the captain consulted me as to the making holes in the boats to prevent the men getting away. I consented to it ; I knocked one hole in the long boat ; I cannot say whether the crew were armed then. * At that time I made entries in the log-book. These entries were afterwards torn out of the log- book by the captain's orders. He said the statements were not correct. To the best of my knowledge the statements were correct. I have now got those torn leaves, and now produce them (they are hereunto attached). The captain made fresh entries on a slate, and told me to copy them into the log-book. It is my duty, and I usually keep the log-book. CROWN CASES RESERVED. 227 At that time the captain walked about armed. 1860. I kept the leaves that I had torn out of the log- Lesley's book for my own protection. ^*^''- The captain did not know that 1 had kept them. I told him that I had not got them, and that they were destroyed. The captain objected to my entries because I had written that he had held a " consultation" with me, which the captain said was incorrect. I was present when the men were brought on board. I received them. They made no protest to me. Their friends were on board. After their friends went away they went below, and called for the cap- tain to arrange matters as to where they were to sleep. The guard remained on board some short time. The guard was not there when the vessel started. There were four men in a boat to see that no one came on board our ship. When off the Azores, the captain accused me of knowing the intention of the men. I do not know how the men were treated. I was not living with them, but I believe they were treated like gentlemen. I believe they had everything they asked for. Messrs. Iluth, Gruning <^ Co. are the consignees of the vessel. I knew they were prisoners when they came on board. I do not know whether the four men in the boat had muskets or not. [The counsel for the prosecution called for the contract entered into by the defendant with the Chilian government. Case. 228 CROWN CASES RESERVED. ■^^^*^' The document (with translation) was produced by Lesley's defendant's counsel. The log-book was also produced by defendant's counsel] (a). Joseph Dickson. — I am an officer in the Liverpool Police Force. On Friday/ last, the 17th of June, I served a summons upon the defendant for an unlawful assault and imprisonment upon one Benjamin Vicuna Mac Kenna. He made no remark when I gave it to him. He did not read it whilst I was present. Translation of Contract. It is mutually agreed between His Excellency, the Governor of the province of Valparaiso, Jovino Novoa, and William Lesley, master of the British barque Louisa Braginton, the following : — 1st. The latter obliges himself to receive on board five cabin passengers, to maintain them and convey them to the port of Liverpool. 2d. The vessel to be ready to sail from this port the twenty-eighth instant, and the charterer to dis- patch her before the fifth of March next; the party (a) The following are the entries tion with me and concluding with in the log-book referred to in the taking out a plank from each evidence of this witness : — boat. " Remarks.— 2%ar«rfay, May 19. '^^ master called me below and mi_ i. J 1 desired me to give him every assist- 4 A.M. The master came on deck . ° , » , , , ,, ,. ,. J. ance m keepmg the command 01 the and held a consultation regardmg ,. , ,K .° . ,., ^, I.- 1,1. I, ship to which 1 readily consented, the passengers which he has a reason '^ . , . . ,, , 1 xi • 1 ii i if • assuring him i would do every to think that something seareous is .,.,?.,., . ■' , . , ^ ., . .■ 1 . thing that laid in my power, doing between them, to which i " ■' *^ am totaly ignorant of anything WilUam Eortop. regarding thim. William Hortop. Saturday, Ma.y 2}. Friday, May 20. The master keeping the deck A.M. Master held a consulta- fully armed day and night." CROWN CASES RESERVED. 229 delinquent will pay to the party observant fifty dol- I860, lars demurrage for each day's delay after those Lesley's stipulated. Case. 3d. The former obliges himself to pay to the latter three thousand dollars cash, for which sum Messieurs F. Huih, Gruning <^ Co., give a receipt, obliging them- selves to return the same amount in case they should not present, within eight months from this date, a certificate from the Chilian Consul at Liverpool, or other valid document, to prove the landing in Liver- pool, or any other port in Great Britain of the afore- said five passengers (the risks of the sea, death, or other fortuitous circumstances always excepted). 4th. A penalty of one thousand five hundred dol- lars is stipulated, payable by the party delinquent to the party observant for all that is agreed in this con- tract, having signed two of one tenor and date, one of which being accomplished, the other to stand void. Valparaiso, February 21, 1859. Witness (Signed) Jovino Novoa. (Signed) George Lyon. William Lesley. This case was argued, on 21st January 1860, before ErLE C. J., WiGHTMAN J., WiLLIAMS J., WaTSON B. and Hill J. Aspinall appeared for the Crown, and Overend Q. C. for the defendant. The Court called upon Aspinall, for the Crown. — I believe that no authority can be found on this subject. I submit, that, al- though the Chilian government might lawfully trans- port Chilian subjects in a Chilian ship, an English subject commanding an English ship could not law- fully lend his ship, even in a foreign port, for the pur- pose of its being made a gaol while in that port. The English ship was for some purposes within both the VOL. I. B 230 CROWN CASES RESERVED. 1860. jurisdiction of the country in which the port was situ- Leslby's ate and the jurisdiction of the Admiralty of England. Case. The Merchant Shipping Act (17 & 18 Vict. c. 104.), by section 267, provides that a master of an English vessel shall be liable to proceedings in England for any offences against property or persons committed in any part of the world, either ashore or afloat. The captain ofa British shipis not compellable by any foreign government to make his vessel a prison; and, if he contracts to do so, he makes himself a party to the duress, in which the persons are brought on board. The defendant cannot justify his acts in this case by any warrant of the Chilian government. Erle C. J. — Assume that the Act was lawful as between the prosecutors and the Chilian government, and that the Chilian government employed the de- fendant as their servant, to do an act which, as be- tween them and the prosecutors, was a lawful act ? Aspinall. — I not only contend that the defendant has chosen to enter into a contract which was unlawful in its inception, but that, even if lawful, while the vessel was in Chilian waters, it was unlawful directly the vessel passed into British jurisdiction. Williams J. — When did the false imprisonment begin ? Aspinall. — I firstly contend that it commenced the moment the prosecutors were put on board the de- fendant's vessel, in pursuance of the defendant's contract. Williams J. — If the Chilian government have a right to do an act, why may they not do it by an English subject? They may employ what agent they like. Aspinall. — At all events the false imprisonment began the moment the ship passed out of the juris- diction of the Chilian government. The prosecutors CROWN CASES RESERVED. 231 were not voluntary passengers, but unlawfully in a ISGO. state of duress, placed there by the deliberate act of Lesley's the defendant. They would have been justified in Case. then seizing the vessel and taking her into the nearest port, and it would have been a perfect answer to any proceedings, whether civil or criminal, that they were escaping from unlawful custody. Eele C. J. — In the late case oiRegina v. Sattler (a) the question was, whether the prisoner killed the police officer in order to release himself from unlawful im- prisonment, or out of pure revenge against the person who had taken him into custody. Aspinall. — And the killing was held to be murder, because it Avas out of malice prepense^ and not with a view to escape. Assuming it had been physically possible to serve a writ of habeas corpus on the de- fendant the moment the ship passed into British juris- diction, it would not have been a good return that the defendant detained the prosecutors under orders from the Chilian govsrnment. Overend Q. C, for the defendant. — First, what was done in the Chilian territory was lawful. AU countries have the right of sending their convicts to any place they please. In Vattel, book 1, c. 19, it is said, that a society may banish any of its members either out of the country generally, or to a particular place out of the country; although every nation has a right of refusing to admit them. The English statutes, 19 Geo. 3. c. 74. s. 1. and 24:060. 3. c. 56. s. 1., assume that the power of banish- ment resides in the state by investing the Courts with power to banish offenders to any country, either within his Majesty's dominions or without; and, by statute 28 Geo. 3. c. 24., the king may authorize per- sons to make contracts for the transportation of any (a) Dears. & Bell's C. C. K. 525. E 2 Case. 232 CROWN CASES RESERVED. 1860. offender. It will not be denied that such a contract Lesley's made by the British government would be lawful. Every nation is mistress of her own actions, and all nations are equal {Vattel, Preliminaires.) The Governor of Valparaiso had a right, according to the law of nations, to banish the prosecutors, being Chi- lians, to England. Other nations ought to respect this right. " To undertake to examine the justice of a definitive sentence is to attack the jurisdiction of him who has passed it." ( Vattel, book 2, § 84.) The Chi- lian government having the right to banish the pro- secutors, it follows that the contract made by them with the defendant and what was done under that contract in Chili were lawful. Secondly, the contract being legal in its inception, the defendant did no act to justify this conviction after the vessel passed out of the Chilian jurisdiction. The prosecutors were the same as voluntary passengers for the rest of the voyage, not having protested against the ship proceeding. WiGHTMAN J. —It must be taken that there was a general protest by the prosecutors against the whole conduct of the captain. Hill J. — Would you contend that if the Chilian government had contracted to have the prosecutors conveyed to York, the defendant would have been justified in holding them in custody and transporting them from Liverpool to York f Overend. — No ; but here the defendant did nothing after the vessel passed out of Chilian jurisdiction but to prosecute his course and navigate the ship to her port of destination. Cur. adv. vult. The judgment of the Court was delivered, on the 28th January 1860, by Erle C. J — In this case the question is, whether a CROWN CASES RESERVED. 233 conviction for false imprisonment can be sustained upon 1 860. the following facts. '~~ , — rp, Lesley s Ihe prosecutor and others, being in Chili, and sub- Case. jects of that state, were banished by the government from Chili to England. The defendant, being master of an English merchant vessel lying in the territorial waters of Chili, near Valparaiso, contracted with that government to take the prosecutor and his companions from Valparaiso to Liverpool, and they were accordingly brought on board the defendant's vessel by the officers of the government, and carried to Liverpool by the defend- ant under his contract. Then, can the conviction be sustained for that which was done within the Chilian waters ? We answer no. We assume that in Chili the act of the government towards its subjects was lawful; and, although an English ship in some respects carries with her the laws of her country in the territorial waters of a foreign state, yet in other respects she is subject to the laws of that state as to acts done to the subjects thereof. We assume that the government could justify all that it did within its own territory, and we think it follows that the defendant can justify all that he did there as agent for the government, and under its authority. In. Dohree v. Napier (a) the defendant, on behalf of the Queen of Portugal, seized the plaintiiF's vessel for violating a blockade of a Portuguese port in time of war. The plaintiff brought trespass; and judgment was for the defendant, because the Queen of Portugal, in her own territory, had a right to seize the vessel and to employ whom she would to make the seizure; and therefore the defendant, though an Englishman seizing an English vessel, could justify the act under the employment of the Queen. (a) 2 Bing. N. C. 781. Case. /,' 234 CROWN CASES RESERVED. 1860, We think that the acts of the defendant .in Chili LEsiEr's, become lawful on the same principle, and therefore -3 no ground for the conviction. The further question remains, can the conviction be sustained for that which was done out of the Chilian territory? And we think it can. It is clear that an English ship on the high sea, out of any foreign territory, is subject to the laws oi England; and persons, whether foreign or English^ on board such ship, are as much amenable to English law as they would be on English soil. In Regina v. Saitler (a) this principle was acted on, so as to make the prisoner, a foreigner, responsible for murder on board an English ship at sea : the same principle has been laid down by foreign writers on international law, among which it is enough to cite Ortolan, sur la Diplomatic de la Mer, liv. 2. cap. 13. The Merchant Shipping Act, 17 & 18 Vict. c. 104. s. 267., makes the master and seamen of a British ship responsible for all offences against property or person committed on the sea out of her Majesty's dominions as if they had been committed within the jurisdiction of the Admiralty of England. Such being the law, if the act of the defendant amounted to a false imprisonment he was liable to be convicted. Now, as the contract of the defendant was to receive the prosecutor and the others as pri- soners on board his ship, and to take them, without their consent, over the sea to England, although he was justified in first receiving them in Chili, yet that justification ceased when he passed the line of Chilian jurisdiction, and after that it was a wrong which was intentionally planned and executed in pursuance of the contract, amounting in law to a false imprisonment. It may be that transportation to England is lawful (a) Dears. & Bell's C. C. E. 525. CROWN CASES RESERVED. 235 by the law of Chili, and that a Chilian ship might so law- 1 860. fully transport ChUian subjects; but for an English ship Lesley's the laws of Chili, out of the state, are powerless, and the '^''««- lawfulness of the acts must be tried by English law. For these reasons, to the extent above mentioned, the conviction is affirmed. Conviction confirmed accordingly. EEGINA V. WILLIAM PIEECE, JAMES BUE- Q. B. GESS and WILLIAM GEOEGE TESTEE. The prisoners were convicted at the Central Criminal The prisoners Court of feloniously stealing five hundred pounds in victed of" weight of gold, four hundred ounces of other gold, and 5^^°°^"^'^ one hundred bars of gold, the property of The South certain pro- Eastern Railway Company, the said James Burgess and fudges who William George Tester being servants to the said ^i^g^'^^i^* Company. made an order direct- The corporation of London claims to be entitled, ingthatpro- under and by virtue of several charters, to the goods of \^^q ^. persons convicted in the city of London, of felony session.ofone committed therein. soners (not After the conviction of the prisoners a claim was property ^ made bv the undersherifis of the city of London to cer- stolen), ... . should be tam property found upon them or in their possession, disposed and, amongst other property, the Turkish bonds re- tfcu"^^^"^' ferred to in the undermentioned order : and, on the manner. , . ' , Held, that other hand, the railway Company claimed such pro- the order perty as being the proceeds, or as representing the ^j^dgehas proceeds, of the robbery upon their railway which no power common law or by statute to direct the disposal of chattels in the possession of a convicted felon, not belonging to the prosecutor. Case. 236 CEOWN CASES RESERVED. Q- B. formed the subject of the prosecution, and part of the Pierce's Said property was also claimed by other parties. Thereupon, all parties were ordered to attend before Martin B. and Willes J., with affidavits, setting forth the grounds upon which their claims were made, and those learned Judges ordered that the property should be handed over to Sir Richard Mayne, and subsequently, on 5th January 1858, made the follow- ing order. Central Criminal Court, to wit.] The Queen on the prosecution of The South Eastern Railway Company^ against William Pierce^ James Burgess and William George Tester. Whereas the said William Pierce., James Burgess and William George Tester have been at this present sessions convicted of feloniously stealing, taking and carrying away five hundred pounds in weight of gold, four hundred ounces of other gold, one hundred bars of gold, &c., the property of the said South Eastern Railway Company, the said James Burgess and William George Tester being at the time of the commission of the felony aforesaid servants to the said South Eastern Railway Company. And whereas it has been made to appear to this Court that certain Turkish bonds of the nominal value of 2,300?. now in the hands of Sir Richard Mayne, one of the Commissioners of Police of the metropolis, by virtue of a certain order of this Court made in the present sessions, were found in possession or power of the said William Pierce at the time of his apprehension for the felony aforesaid. And it has also been proved to the satis- faction of this Court that one sixth part of the said Turkish bonds was bought by or for the said William Pierce out of the proceeds of the said felony, and that the said sixth part was in fact so bought with money produced by sale of part of the said goods, chattels CROWN CASES RESERVED. 237 and property so stolen as aforesaid, and that the re- Q B maining five sixths of the said Turkish bonds were, at '~^~o^'r the time of the apprehension of the said William Pierce Case. for the felony aforesaid, held by the said William Pierce as trustee for one Fanny Bolan Kay and her child. Now this Court doth order that the said Sir Richard Mayne do forthwith deliver the said Turkish bonds so in his hands as aforesaid to John Charles Pees the solicitor of the said Company, and that the said J. C. Pees and the said South Eastern Pailway Company do, upon the receipt thereof, retain one sixth part thereof to and for the use of the said South Eastern Pailway Company, and do forthwith settle the remaining five sixths parts thereof upon trust for the said Fanny Bolan Kay and her child, in such manner and form as the said Fanny Bolan Kay may advise. Wilde^ on behalf of the corporation of London, ob- tained a rule in the Court of Queen's Bench, calling upon the prosecutors to shew cause why this order which had been removed by certiorari should not be quashed. On Wednesday, 2d June 1858. Petersdorff Ser]t. shewed cause. — The order is good. Part of this property is the proceeds of the larceny, and, as_^it is mixed up together with the residue, the Judges had power to dispose of the whole. It is not an^order made under 21 ffen. 8. c. 11. or 7 & 8 Geo. 4. c. 29. s. 57. Lord Campbell C. J. — Those acts seems to be con- fined to the property which has been stolen, Petersdor^. — But where the property in the pos- session of the felon is under the immediate controul of the Court, the Court has power at common law to order the disposal of it. Eele J. — Do you contend that bona catalla felonum, 238 CROWN CASES RESERVED. Q. B. are at the disposal of the Judge ? If the property Pibbcb's is that of the felon, I do not see how the Judge can ^^^®" order the disposal of it contrary to the grant of the Crown; if it is the property of some one else, the Judge has only the power by statute to order it to be restored to that person. Petersdorff. — At common law the Judges, before whom an oflFender is tried, have the power of directing into whose hands the property not stolen should be placed. Where property stolen and property not the subject of felony are found indiscriminately in the possession of the felon, the Court has power to order the proportion of it. Wilde and Sleigh, for the corporation, were not called upon. Welshy appeared for the Crown. Lord Campbell C. J So much of the order as applies to five sixths of the Turkish bonds must be quashed. However desirable it may be that there should be such a power as has been exercised in this case, I do not think that the Judges have any such power either at common law or by statute. Rule absolute. I860. EEGINA v. CHAELES HUNTLEY. The first The following case was reserved by the Recorder count of the - _.^. , indictment 01 Winchester. charged the prisoner with stealing certain goods and chattels ; and the second count charged him with receiving " the goods and chattels aforesaid of the value aforesaid so as aforesaid feloniously stolen." After objection that he could not be found to have feloniously received goods stolen by himself, the case went to the jury and the prisoner was acquit- ted upon the first count, and convicted upon the second. — Held, that the conviction was good. CROWN CASES RESEEVED. 239 The prisoner was tried before me, as Recorder of 1860, Winchester, at the Epiphany Sessions, 1860. iruNTLEY'7 The indictment was as follows. Case. Gity oi Winchester, Y^hQ jurors for our lady th^ to wit. j Queen upon their oath present that Charles. Huntley late of the parish of Saint Maurice in the city of Winchester on the sixth day of December in the twenty-third year of the reign of our Sovereign lady Victoria by the grace of God of the United Kingdom of Great Britain and Ireland Queen Defender of the Faith with force and arms at the parish of Saint Thomas in the city aforesaid twenty yards of tweed of the value of three pounds of the goods and chattels of John Gadd then and there being found feloniously did steal take and carry away, against the peace of our said lady the Queen her Crown and dignity. And the jurors aforesaid upon their oath do further present that Charles Huntley late of the parish afore- said in the city aforesaid afterwards to wit on the sixth day of December in the year last aforesaid at the parish aforesaid in the city aforesaid the goods and chattels aforesaid of the value aforesaid so as aforesaid feloniously stolen taken and carried away feloniously did receive and have he the said Charles Huntley then and there well knowing the said goods and chattels last aforesaid to have been feloniously stolen taken and carried away, against the form of the statute in such case made and provided, and against the peace of our lady the Queen her Crown and dignity. Before the prisoner pleaded, his counsel moved to quash the second count, on the ground that, by refer- ence to the first count, it must be read as charging a felonious receiving by the prisoner of goods then stolen by him the said prisoner, the words " so as aforesaid" 240 CROWN CASES RESERVED. 1860. stolen, being referable to the first count, which states Hontley's the goods to have been stolen by the said prisoner; ^^^' and it was contended that the count being so read was bad, as a prisoner cannot be said to have felo- niously received goods stolen by himself; and Regina V. Perkins (a) was referred to, in which it was held that, where the evidence is sufficient to convict the accused of stealing, there is no option to treat hira either as a thief or a receiver. The objection was renewed pro formd at the close of the prosecutor's case, when it was objected that there was no evidence to support the second count on the same ground as above stated, viz., that the prisoner could not be found to have received goods stolen by himself. The prisoner was acquitted upon the first count of the indictment, but found guilty upon the second count. I reserved the objection for the consideration of the Judges. Judgment stands postponed on this indictment, and the prisoner remains in gaol, having been sentenced to nine months imprisonment on another indictment. A. J. Stephens. This case was considered, on 21st January 1860, by Eele C. J., WiGHTMAN J., "Williams J., Watson B. and Hill J. No counsel appeared. Eble C. J. — In this case the prisoner was charged in the first count of the indictment with stealing cer- tain goods and chattels, and in the second count with receiving " the goods and chattels aforesaid, of the value aforesaid, so as aforesaid feloniously stolen." He was acquitted upon the first count, but convicted upon the second ; and it is contended that the convic- tion cannot be sustained, because a person cannot be («) 2 Den. C. C. R. 459. CROWN CASES RESERVED. 241 said to have feloniously received goods stolen by himself. "We are of opinion that the words in the second count, "so as aforesaid feloniously stolen," may be construed to mean simply " stolen goods," and there- fore such goods as the prisoner might be convicted of " So as aforesaid" is an immateriel aver- receivmg. ment; the conviction, therefore, can be sustained. Conviction affirmed (a). 1860. Huntley's Case. (a) As the statute (7 & 8 Geo. 4. c. 29. i. 54.) makes the offence to consist in receiving the goods know- ing them to have been stolen, the indictment need not name the prin- cipal or allege that he is unknown. In Bex V. Jervis (6 Car. & P. 156) the indictment was for the substan- tive felony of receiving stolen goods, and contained an allegation that the goods were stolen "by a certain evil disposed person," without stating the name of the principal felon or aver- ring that he was unknown, and Tin- dal C. J. held the indictment good, saying, "The offence created by the Act of Parliament is not the receiv- ing stolen goods from any particular person, but receiving them knowing them to have been stolen." In B,e- gina T. Craddock (2 Den. C. C. 31) the indictment in the first count charged A. with stealing a promis- sory note from the person of B. ; in the second count with stealing a bank note from the person of B. ; in the third count with receiving the aforesaid goods " so as aforesaid feloniously stolen." ^. was acquitted on the first two counts and convicted on the last, and it was held, on application to arrest the judgment, that after verdict the indictment was not bad on the ground of re- pugnancy ; because, first, the words of reference in the third count did not necessarily import a stealing of the goods by A. Secondly, if they did the count did not thereby be- come intrinsically repugnant ; and after verdict the Court would re- sort to any possible construction which would uphold the indictment against a purely technical objection. 242 CROWN CASES RESERVED. .Considered. SURUJ- 1 PAUL V. The Queen I 119S811W.L.R.10S0 I 1860. REGINA V. HENRY HUGHES. The first two The following case was reserved by the Recorder counts of an /.■•»-, , indictment Of Manchester. charged.^. ^^ ^ijg Court of Quarter Sessions holden in and for and B. jointly with stealing, the city oi Manchester, in the county .of ia?zcaster, on the 2d day of January, 1860. John Hall and Henry Hughes were tried before me on the annexed indictment ; both pleaded not guilty. After the jury were charged, the learned counsel for the prosecution said he did not propose to offer any evidence against Hall, and applied to have him ac- quitted, in order that he might be examined as a witness; and, on his assuring me that in his judgment that course would serve the ends of justice, I acceded to it, and he was acquitted, and called as the first witness. He had been thirteen months in the service of the prosecutors, and, according to his evidence, Hughes first solicited him to rob his masters on the 20th or 22d of November, asking him if he could get him a few pounds of fents, and he would keep it dark; and to bring them to him at any time, and they would be right. That accordingly the next day he took eight pounds of patchwork, which he had stolen from his masters, to Hughes, who gave him half a crown for it, the selling price being Id. per pound. This patchwork was afterwards found in Hughes's cellar (his place of business), and he stated that he had got it from Hall. charged B. alone with receiving the stolen goods, jl.was acquitted, no evidence having been offered against him, in order that he might be a witness against the other pri- soner. Upon his and other evidence, which proved that B. was an accessary before the fact to the stealing and afterwards received the stolen goods, the jury found a general ver- dict of guilty against B., which verdict was entered upon all the counts. Held, that B. was not entitled to an acquittal upon the first two counts by reason of the principal, .4.,having been acquitted, because 11 & 12 Vict. c. 46. s. 1. has made the being an accessary before the fact a sub- stantive felony, and the conviction of the principal is not now a condition precedent to the conviction of an accessary. Held also, that there was no inconsistency in the general verdict as an accessary before the fact may also be a receiver. Hughes's CROWN CASES RESERVED. 243 That (a) on the Monday following he was passing 1860. Hughes'^ place, who called him in and asked if he could get him any more of those fents; he said he could, and it was arranged between them that a person of the name of Lowe, who was called into the cellar, should go next day to the warehouse of HalVs masters, 100, Moseley Street, and bring the parcel he was there to get from Hall to Hughes. Lowe, who did not appear to be aware of the nature of the transaction between Ball and Hughes, forgot his appointment. Hall went the same afternoon to inquire why the man had not come ; he was sent for to Hughes^s place, and said he had got drunk and forgot it. And it was then arranged, between Hughes and Hall and Lowe, that Lowe should go to the warehouse of prosecutors, 100, Moseley Street, next morning, the 30th November, at a quarter past eight, and there receive a parcel to be given to him by Hall, and bring it to Hughes ; and Hughes directed him to bring the parcel to his cellar (which was his place of business, and was under a public house) ; but if he was not in when he came with it, he was to take the parcel into that public house and leave it there for him, Hughes, until he returned. On the morning of 30th November, Hall opened the warehouse at a quarter past eight, and found Lowe there waiting for him ; and about a quarter to nine Hall gave him a bundle of fents that belonged to his masters, and he went away with them. A policeman on duty in the neighbourhood saw Lowe carrying this bundle on his shoulder, followed him, and saw him take it into the public house over Hughes's cellar, which was then shut; and, on going into the kitchen of the public house, he saw the bundle lying on the table there, and from the account given of it by Lowe he took it to the station. («) This applies to the 2nd count. Case. 244 CROWN CASES RESERVED. I860. Another policeman took immediate possession of Hughes's Hughes's, cellar, and waited till he came in, and asked him if he had sent a man for any goods that morning ; he replied, " I have sent a man for some prints to 100, Moseley Street:" he was then taken into custody. The patchwork or fents found in Hughes's cellar, and which he said he had got from Hall, and the bundle of prints brought by Lowe from 100, Moseley Street, to the said public house, were identified by the prose- cutors as their property. Mr. Wheeler appeared as counsel for Hughes, and cross-examined the witnesses, and addressed the jury on behalf of Hughes, contending that they ought utterly to disregard every thing that Hall had said, and acquit his client. I summed up the evidence, and told the jury that they alone were to decide on the credit to be given to the witnesses ; but that, if they believed Hall to the full extent of his evidence, Hughes was a guilty par- ticipator in both larcenies. That if they doubted about that, they would have to consider whether they were or were not satisfied that he received the pro- perty knowing it to have been stolen. And with refer- ence to the fact of the receipt of the second parcel of goods which Lowe was sent for by Hughes, with direc- tions in case he should be out when he came to leave it for him at the said public house, and Lowe having done so, I told them that was as much a receipt by him as if it had been brought to him in his cellar and left there. The jury retired at seven o'clock to consider their verdict, and I left the Court. They some time after- wards gave a general verdict of guilty, which was so entered. They strongly recommended the prisoner to mercy. The question for the opinion of the Court is — CROWN CASES RESERVED. 245 Whether, as the facts shewed that Hughes^ if guilty 1 86a. at all of the larceny, was guilty only as an accessary hcghes's before the fact, and Hall, the principal, having been ^=''^- acquitted, I ought not to have told the jury that Hughes was entitled to his acquittal on the counts for larceny, and that they Avere to confine their attention to the count for receiving only. And if I ought so to have directed them, whether, on this general verdict, judgment can now be pro- nounced on the count for receiving. Hughes was admitted to bail to appear and receive judgment when called upon. R. B. Armstrong, Recorder of Manchester. Copy Indictment. City o£ Manchester, in the'j The jurors for our lady county of Lancaster, >the Queen upon their oath to wit. J present that William Hall and William Hughes late of the city of Manchester in the county oi' Lancaster on the the twenty-second day of November in the year of our Lord one thousand eight hundred and fifty-nine at the city aforesaid in the county aforesaid and within the jurisdiction of this Court and within the space of six calendar months from the first to the last of the several acts of stealing charged in this indictment ten pounds weight of cotton fents of the property of William Henry Smith and another then and there being found feloniously did steal take and carry away, against the form of the statute in such case made and provided and against the peace of our said lady the Queen her Crown and dignity. 2d count. And the jurors aforesaid upon their oath aforesaid do further present that the said William Hall and William Hughes on the thirtieth day of November VOL, I. s Case. 246 CROWN CASES RESERVED. 1860. in the 3?ear aforesaid at the city aforesaid in the county Hughes's aforesaid and within the jurisdiction of this Court and within the space of six calendar months from the first to the last of the several acts of stealing charged in this indictment eighteen pounds weight of cotton fents of the property of the said William Henry Smith and another then and there being found feloniously did steal take and carry away, against the form of the statute in such case made and provided and against the peace of our said lady the Queen her Crown and dignity. 3d count. And the jurors aforesaid upon their oath aforesaid do further present that the said William Hughes afterwards to wit on the same day and year aforesaid at the city aforesaid in the county aforesaid and within the jurisdiction aforesaid the property aforesaid before then feloniously stolen taken and carried away feloniously did receive and have he the said William Hughes then and there well knowing the same to have been feloniously stolen taken and carried away, against the form of the statute in such case made and provided and against the peace of our said lady the Queen her Crown and dignity. William Hall, not guilty. William Hughes^ guilty. This case was argued, on 21st January 1860, be- fore Erle C. J., Wightman J., Williams J., Watson B. and Hill J. Sowler appeared for the Crown, and Dr. Wheeler and C. H. Hopwood for the prisoner. Dr. Wheeler, for the prisoner. — In the first two counts of this indictment Hall and Hughes are in- dicted as principals in the acts of theft alleged in those counts respectively; and in the third count Hughes alone is charged with receiving the property knowing it to have been stolen. The counsel for the CROWN CASES RESERVED. 247 prosecution offered no evidence against Hajl, who was 1 860. acquitted, in order that he might be examined as a Hbohes's witness against the other prisoner, Hughes. He was ^ase. so examined, and on his and other evidence the jury found a general verdict of guilty against Hughes. There is no evidence that Hughes acted as principal; but the whole of the evidence went to shew that he was accessary before the fact to the felonies committed by Hall. Hall, the thief, having been acquitted, there is an end of the case against the accessary before the fact. ^ Section 1 of 11 & 12 Vict. c. 46. effects an altera- tion in the form of pleading only, but does not alter the law with reference to accessaries before the fact; and previous to that statute the law was that the conviction of the principal was a condition prece- dent to the conviction of an accessary. If indicted with the principal, and the principal did not appear, the accessary was not compellable to plead; and if the principal was tried and acquitted, the acces- sary was entitled to an acquittal. Where the prin- cipal did appear, and pleaded the general issue, the jury were charged to inquire first of the principal, and, if they found him not guilty, then to acquit the accessary (a). It cannot be pretended that there was any unknown principal here, or any other than the man who was acquitted. Upon the groiind then that the principal was acquitted, this conviction must fail. Hill J.— The preamble of 11 & 12 Vict. c. 46. recites that it is " expedient that any accessary before tlie fact to felony should be liable to be indicted, tried, convicted and punished in all respects like the prin- cipal, as is now the case in treason and in all misde- meanors." The statute by the first section enaats, (a) 1 Hale, 623, 624 ; 2 Hale, 223. S 2 Case. , 248 CROWN CASES RESERVED. , 1860. that "If any person shall become an accessary before Hughes's the fact to any felony, whether the same be a felony at common law or by virtue of any statute or statutes made or to be made, such person may be indicted, tried, convicted and punished in all respects as if he were a principal felon." That enactment makes an accessary a principal felon, As to the second point, coupling the direction to the jury with the general verdict, the conviction is bad. The Recorder, after remarking upon the evidence as to the first two counts, told the jury that, if they doubted as to those counts, they would have to con- sider the evidence as to the third. He ought to have directed them that they might find the prisoner guilty of either the theft or the receiving ; but, as they have found a general verdict, it is impossible to say upon Avhich charge they have convicted the prisoner. Sowler was not called upon by the Court. Ekle C. J. — We are of opinion that this conviction is right, notwithstanding both the points relied upon. With regard to the first point, we think that 11 & 12 Yict. c. 46. s. 1. has made the crime of being an acces- sary a substantive felony, and that the old law which made the conviction of the principal felon a condition precedent to the conviction of the accessary, is done away with by that enactment. Suppose the accessary is captured before the principal, he may, under the statute, at once be tried and convicted. If the prin- cipal is afterwards taken, tried and acquitted, has the accessary a right to be discharged ? We are of opinion that he has no such right. Whether he is tried before or at the same time as the principal, he may be found guilty as an accessary, although the principal be ac- quitted. As to the second point, looking at the evidence, there can be no doubt as to the substantial guilt of CROWN CASES RESERVED. 249 the prisoner, and we should make every intendment 1860. in order to support the verdict. i; 7~ TT ,. ^^. Hjjghess upon this evidence the jury might reasonably and ^ase. logically convict the prisoner of stealing as an acces- sary before the fact, and there is no inconsistency in saying that he is guilty of being an accessary before the fact, and that he received the goods knowing them to have been stolen. The other learned Judges concurred. Conviction affirmed. REGINA V. RACHAEL WARDEOPER. isGO. The following case was reserved by Martin B. 'lie prisoner The prisoner was indicted at the last Newcastle husband and Assizes, together with her husband and a man called ^: ^^""f !"". T> • 7 PI 1 1 • • mi • /. -1 dieted jointly Jr'nsnous, tor burglary and receiving, ihe jury found for burglary Prishous guilty of house-breaking, and the prisoner fn" cumstances On the trial, a dying declaration of the said Mary °/ the death TTT- 7J. , T n . . , the subject Wooljord was tendered m evidence on the part of the of the d^ing prosecution, and objected to on the part of the pri- Thlrefoie"' soner upon the ground that the death of Mary Wool- »" an indict- /•T 11. 01-. meat for jora was not the subject of the inquiry. feloniously I received the evidence, but reserved the question "„'s"rumtnte"* as to its admissibility, and respited the execution of "po" the , .1 1 y-i r t • T • /• person of a the sentence until the Court lor the consideration of woman with Crown Cases Reserved should pronounce its decision p"ocu*re°a upon the point. {^e^Rex v. Baker (a). ) miscarriage, If the Court should be of opinion that the evidence declaration was not admissible, then the judgment is to be re- °^^^Ul'^^^ versed, inasmuch as, without the evidence of the inadmissible, dying declaration of Mary Woolford, the prisoner could not have been convicted. If the Court shall think the evidence was admissible, then the judgment is to stand. Heney Keating. This case was argued, on 28th April, 1860, before Pollock C. B., Channell B., Byles J., Blackburn J. and Keating J. (a) 2 Moo. & Bob. 53. VOL. I. T Case. 254 CEOWN*CA;SES RESERVED. I860. F. A. Carrington appeared for the Crown ; no coun- Hind's sel appeared for the prisoner. F. A. Carrington, for the Crown.— The decision in Rex V. Mead (a) is no doubt against the admissibility of this evidence. There the defendant, having been convicted of perjury, a rule nisi for a new trial was obtained ; whilst that rule was pending, the defendant shot the prosecutor, and, on shewing cause against the rule, "an affidavit was tendered of the dying declara- tion of the latter as to the transaction out of which the prosecution for perjury arose; and the Court of Queen's Bench held that it could not be read, for that dying declarations are admissible only where the death is the subject of the charge, and the circumstances of the death the subject of the declaration (b) ; and in Rex V. Hutchinson (c), tried before Bayley J. at the Durham Spring Assizes 1822, where the prisoner was indicted for administering savin to a woman, pregnant but not quick with child, with intent to procure abor- tion; the woman being dead, evidence of her dying declaration upon the subject was tendered for the prosecution, but the learned Judge rejected the evi- dence, observing that, although the declaration might relate to the cause of the death, still such declarations (a) 2 B. & C. 605. were peculiar, inasmuch as the de- (V) 2 B. & C. 608, note (a). clarations amounted to a confession (c) In Rex v. IMead, counsel by the parties themselves of very mentioned the case of Wright v. heinous ofi'ences which they had Littler, 3 Burr. 1244, where evi- committed, whereas the declara- denoe of a dying confession by the tion of the deceased, in the case subscribing witness to a deed was then before the Court, was for the held admissible, and also a case purpose not of accusing but of before Heath J., cited in Avison v. clearing himself. See the observa- Lord Kinnard in 6 East, 195, where tions of the Court of Exchequer in the confession of an attesting wit- Stobart v. Dryden, 1 M. & W. 615, ness to a bond, who^ in his jdying which render it at least very doubt- moments begged pardon of Heaven ful whether dying declarations, for having been concerned in forg- would at the present day be adm^- ing the bond, was received. Abbott sible in any civil suit. 2 Buss, on C. J. remarked that these cases C. & M., by Greaves, 762, note (/)• CROWN CASES RESERVED. 255 ■were admissible in those cases alone where the death 1860. of the party was the subject of inquiry (a). But hind's concerning the admissibility of such evidence, under c^««- the law of Scotland, it is said (6) : « Although, from their nature, cases of murder are the most frequent, they are not however the only cases in which this sort of evidence may be employed, as appears from what passed in the trial of James Macgregor, August 3rd 1752, for the abduction and forcible marrying oi Jean Key. After being recovered out of the pannel's hands and placed with a relation of her own, that unfortunate young woman had, on the 20th of May, of her own accord, gone into the presence of two of the Judges (the Lord Justice Clerh and Lord Drummore) and had privately related to them the story of her suffer- ings, which was duly taken down in writing ; and she had afterwards, in presence of the Court, confirmed and publicly adhered to this declaration. But at this time she was in an infirm and languishing condition in consequence of the grievous outrages which she had suffered j and she died before the libel was raised against the author of her distresses. To supply, there- fore, as far as might be, this material defect, the pro- secutor libelled on these declarations of hers as mean- ing to produce them by way of evidence in the trial. Accordingly, after hearing counsel, the Court allowed them to be used as circumstances of presumption against the pannel, and they were again produced, August 6th, December 27th, 1753, in the trial of Robert Macgregor, the associate of James, in this atrocious enterprize." (a) 16 State Trials, 29 ; Hume's Sayley J. on the Northern Spring Commentaries on the Law of Scot- Circuit 1822, and by Best J. on land respecting Crimes. the Midland Spring Circuit 1822 ; (6) In trials for robbery, the and in Rex v. Lloyd, 4 Car. 8s P. dying declarations of the party 233, by 5oZfad B.; 2 Russ. on C. robbed were helj inadmissible by & M., by Greaves, 762, note (/). T 2 Case. 256 CROWN CASES RESERVED. I860. The last case in this country upon the subject was Hind's Rex V. Bahcr (a). There the indictment against the prisoner was for the murder of A. by poison, which was also taken by B., who died in consequence, and it was held by Coltman J., after consulting Parke B., that 5.'s dying declarations were admissible. In that case the learned Judge said he would reserve the point for the opinion of the Judges, but the prisoner was acquitted. The judgment of the Court was delivered by Pollock C. B. — We are all of opinion that the dying declaration of the deceased was improperly received in evidence. The rule we are disposed to adhere to is to be found in Rex v. Mead (b), where Abbott C. J. said : " The general rule is that evidence of this description is only admissible where the death of the deceased is the subject of the charge and the circumstances of the death the subject of the dying declaration." Speaking for myself, I must say that the reception of this kind of evidence is clearly an anomalous exception in the law of England which I think ought not to be extended. Conviction quashed. (a) 2 Moo. & Kob. 53. (6) 2 B. & C. 60^ hC^C CEOWN CASES RESERVED. 267 REGINA V. CHARLES HALLIDAY. ISGO. The following case was reserved by Byles J. at The prisoner the South Wales Spring Circuit, 1860. Tthf firft*^ The prisoner was indicted for obtaining from the trus- F°""* °^ ^° tees of the Swansea Savings Bank, a sum of 60/. by witrobtTin. falsely pretending that a certain document produced frLTe^ to the bank by Eliza Thomas, the wife of Daniel ^^""^^^^ °^ \ Thomas, had been filled up by authority of Daniel b^fXiy*" ' ThoTnas, the depositor, and was a genuine document. ?hatTdofu. There was a second count founded on another false mentpre- x r 1*11 • sented to the pretence, by which the prisoner was alleged to have bank by the obtained, by another document produced by the said ^^a bee?' Eliza Thomas, a further sum of money. fiUed up by rpi ii • 1 , r • 1 ^^ authority inere was a third count for a conspiracy between ofx».; and the prisoner and Eliza Thomas to cheat the savings count of 'the bank. same indict- It appeared that an authority to receive the money prisoner was had been filled up by another witness at the instance 'tZl^t^l^^ ^ -J conspiring of the prisoner; that Eliza Thomas, the wife of the with the said depositor, had presented it and obtained the money, to cheat the and that the prisoner had afterwards eloped with evrd^ncJ''^ Eliza Thomas. On the apprehension of the prisoner, of -D. was rscsivsd iri a large sum of money was found in his possession, proof of 'the The evidence of Daniel Thomas, the depositor, was fo*g*jjg^""hat essential to the prosecution, in order to shew that he he had given had given no authority to fill up the document or to "o fin up"the withdraw the deposit. to°S"rnw the deposit. The jury found the prisoner guilty on the first count, and not guilty on the second and third counts. Held: 1. That the evidence of D. was properly received in proof of the first count, his wife not being indicted, although she was alleged to be one of the parties to the conspiracy charged in the third count. 2. That finding the prisoner guilty on the first count was consistent with finding hmi not guilty on the third count. Case. 258 CROWN CASES RESERVED. I860. It was objected, on behalf of the prisoner, that al- Haludat's though the wife of Daniel Thomas was not included in the charge, yet he was not an admissible witness to prove her guilty of a conspiracy, nor even to prove thecounts forfalse pretences. (See Begina v. Gleed{a). ) I thought his evidence admissible on all the counts. In deference, however, to the high authority of Mr: Justice Littledale and Mr. Justice Taunton, I re- served the point, and suggested that the counsel for the prosecution should consent to a verdict of acquittal on the last count. The counsel for the prisoner then objected that an acquittal on the last count was inconsistent with a verdict of guilty on the first count. The jury, how- ever, found the prisoner guilty on the first count, and not guilty on the second and third counts. I reserved these questions : First Whether the husband's evidence was pro- perly received in proof of the first count. Secondly, — ^Whether there is any necessary incon- sistency in the finding on the first and third counts. The prisoner's sentence was deferred, but the pri- soner remains in custody. J. Barnard Btles. This case was considered, on 28th April, 1860, by (a) Cited 2 Russ. on C. & M., by causing a charge to be made by Greaves, 983. In that case against him. Having consulted (which was tried at Gloucester Littledale J., his Lordship said : — Lent Assizes 1832), on an indict- " Here the evidence would directly ment for stealing wheat, Eliza charge the husband with being a JEllis was called on the part of the principal, and although there is no Crown to prove that her husband, prosecution pending, her evidence who had absconded, had been pre- cannot but facilitate an accusation sent when the wheat was stolen, against her husband. Now the law and that she saw him deliver it to does not allow the wife to give evi- the prisoner ; Taunton J. doubted dence against her husband, and it whether she could be so examined, is quite consistent with that prin- as her evidence might be used as a ciple that this evidence should not ground of convicting her husband be received." CROWN CASES RESERVED. 269 Pollock C. B., Channell B., Byles J., Blackburn i860. J. and Keating J. -— ■vr , Halmday's jNo counsel appeared. Case. The judgment of the Court was delivered by Pollock, C. B — The question is whether the evi- dence of the husband was admissible in support of the first count. His evidence, no doubt, tended to shew that his wife had acted unlawfully and criminally ; but the first count contains no charge against the wife; and indeed, on this indictment, she was not charged at all, although she was involved in the conspiracy charged against the prisoner in the third count. Though that is so, it does not prevent the husband's evidence from being admissible. We are also of opinion that, although the prisoner was ac- quitted on the third count for conspiracy, it does not necessarily follow that the conviction on the first count was wrong. Conviction affirmed. REGINA V FEANCIS LOOSE. 1860. The following case was reserved by Williams J. The prisoner, at the Norwich March Assizes, 1860. trustee of a In this case the indictment alleged that on the 20th goi^ety^was of July, 1859, the prisoner became and was bailee of appointed by a resolution • of the society to receive money from the treasurer and carry it to the bank. He received the money from the treasurer's clerk, but instead of taking it to the bank he applied it to his own purposes. He was indicted for stealing as bailee of the money of the treasurer, and also for a commou law larceny, the money being laid as that of the treasurer. The Friendly Societies Act, 18 & 19 Vict. c. 63. s. 18., vests the property of such societies in the trustees, and directs that in all indictments the property shall be laid in their names. — Held, that the prisoner could not under these counts be convicted either as a bailee or of a common law larceny. 260 CROWN CASES EESERVED. 1860. monies of Richard Carraway, deceased, to the amount Loose's of 40?., and that, being such bailee, he fraudulently Case. a^j^ feloniously did take and convert the said monies to his own use, and that the prisoner in manner and form aforesaid, feloniously did steal, &c., the said monies. There was another count for a common law larceny. The deceased Richard Carraway^ whose money the 40Z. was alleged to be, was at the time in question the treasurer of a lodge of Odd Fellows, which was a friendly society duly enrolled. The prisoner was one of its trustees. On the 20th of July, 1859, at a lodge meeting, it was proposed and resolved that 40L should be sent to the bank of Messrs. Gurney, at Fakenham, and that the prisoner should take it there. The 40/. in gold and silver was taken from a box, which was in Carraway^ keeping, as treasurer, by a person who acted for him, and, having been counted, was put into a bag and carried away by the prisoner. Instead of taking it to the bank, he dishonestly applied it to his own purposes, and no such sum was ever placed to the credit of the society. On these facts it was submitted, by the counsel for the prisoner, that the money was not shewn to be the property of Richard Carraway as alleged in the indictment. CairHs Case (a), it was argued, did not apply, because that case was decided on the construc- tion of the statute 10 Geo. 4. c. 56., by which the property of a friendly society was vested in the trea- surer or trustee for the time being, whereas by the. Act now in operation (stat. 18 & 19 Vict. c. 63. s. 18.) the property is vested in the trustee or trustees of the society. And that, supposing the treasurer to have a special property in the AOL, such property ceased as soon as the resolution of the lodge meeting was acted (a) 2 Moo. C. C. K. 204 ;. S. C. Car. & M. 309. Case. CROWN CASES RESERVED. 261 upon by payment of the money into the hands of the I860, prisoner, who was nominated by the lodge, and not Loose's the treasurer, to carry it to the bank. It was further urged that, independently of the statutes, assuming the treasurer to be the owner, the prisoner received the money, not as the servant of the treasurer, but as a person not bound to take it ; and he was therefore only guilty of a breach of trust. Lastly, it was agued that the prisoner was not bound to pay in that par- ticular 40^., but any sum of 40/. would have sufficed, whereas by the statute he must hold something specific. The prisoner was convicted, but I respited the judgment, until the opinion of this Court should be taken whether the above objections were well founded. Edw. Vaughan Williams. This case was argued, on 28th April, 1860, before Pollock C.B., Channell B., Byles J., Blackburn J. and Keating J. No counsel appeared for tbe Crown, and Metcalfe {Drake with him) appeared for the prisoner. Metcalfe, for the prisoner. — The property is not well laid in Richard Carraway, the treasurer. The case of Rex v. Cain (a), relied upon at the trial on the part of the prosecution, is not in point. That was the case of a benefit society enrolled under the 10 Geo. 4. c. 56. and the 4 & 5 Wm. 4. c. 40., and it was held that the property of the society might in an indict- ment be laid to be in the treasurer by his proper name, under sect. 21 of the 10 Geo. 4. c. 56., which provides that the property in such societies, " for all purposes of action or suit, as well civil as criminal," should be deemed and taken to be, and in every such proceeding where necessary stated to be, the property of the " treasurer or trustee of such society for the (a) 2 Moo. C, C. K. 204 ; S. C. Car. & M. 309. 262 CROWN CASES RESERVED. 1860. time being in his or her proper name, without further Loose's description." But the Act now in force relating to ^^^- friendly societies is the 18 & 19 Vict. c. 63., which, by sect. 18, vests the property of such societies in the trustees, and directs that in all actions, or suits, or indictments, or summary proceedings before magis- trates touching or concerning any such property, the same shall be stated to be the property of the persons for the time being holding the office of trustees in their proper names as trustees of such society without any further description; so that Richard Carraway, being treasurer only, and not a trustee, bad no pro- perty- vested in him by virtue of the statute. The prisoner was in law the owner of the money. The general property was in the trustees, of whom the prisoner was one ; and whatever special property the treasurer may at any time have had was taken from him when the resolution of the society, to hand the money to the prisoner, was made, and when the money was handed to him pursuant to such resolution. The judgment of the Court was delivered by Pollock C. B. — We are all of opinion that the conviction on the indictment in this form cannot be sustained. In Cain's Case the prisoner had obtained the money of the society wrongfully, and the property in it was rightly laid in the treasurer, in whom it was vested by the statute then in force, 10 Geo. 4. c. 56.; but in this case the money was not vested in the treasurer, but in the trustees, of whom the prisoner was one, and he was specially appointed by a resolu- tion of the society to take the money to the bank. It therefore cannot be said that he stole the money, the property of the treasurer, as charged in the in- dictment. As soon as the treasurer parted with the money he had nothing more to do with it. The pri- CROWN CASES RESERVED. 263 soner may have been guilty of a breach of trust as 1860. against the other trustees; but it cannot be said that loose'b he stole the money of the treasurer. The conviction, ^^'^^ therefore, cannot be sustained. Conviction quashed. REGINA V. SAMUEL HUDSON, JOHN SMITH, 1860. and JOHN DEWHIEST. The following case was reserved by the deputy for The three the Recorder of York. prisoners being in a At the Epiphany Sessions, 1860, held for the city puWic house of York, the prisoners were jointly indicted and tried prosecutor, before me upon an indictment the first two counts of "„ concert™' which charged them with an offence under 8 & 9 Vict. ^'^^^ *e c. 109., as follows. 1st count charged: that on the placed a p'en- 18th November, 1859, by fraud, unlawful device and tabieTnd ^ ill practice in playing at a certain game or sport, to left the room. wit in and by a wager with one Abraham Rhodes was absent whether a certain pencil-case had a pen in it or not, ?"^ °*^ *^f *^ tr 1 two remain- unlawfully and fraudulently they did win from the ing took the said Abraham Rhodes to a certain person, to the jurors the case and unknown, a certain sum of money, to wit 2?. 10*., of V^^ ^^^ "^ the money of the said Abraham Rhodes, and so did then and the two and thereby unlawfully obtain such money from the FndiweTthe said Abraham Rhodes by a false pretence, to wit by ^J'^^et"J,'ft'[, the fraud, unlawful device and ill practice aforesaid, the other prisoner, when he re- turned into the room, that there was no pen in the case, and the prosecutor staked fifty shillings. On the pencil-case being turned up another pen fell into the prosecutor's hand, and the prisoners took the money. _ Held, that the evidence supported a conviction upon a count charging the three prisoners with conspiring by divers false pretences and fraudulent devices to cheat the prosecutor of his money, although it appeared that he had the intention of cheating one of the prisoners if he could. , ^ „ , . , -^i • Semble, that the facts did not amount to the offence of cheating at play within section 17 of 8 & 9 Vict. c. 109. 264, CROWN CASES RESERVED. 1860. with intent then to cheat and defraud the said Abraham Hudson's Rhodes of the same, against the form of the statute ^^^^- in such case made and provided, &c. The second count charged the prisoners that they unlawfully and fraudulently did combine, confederate and conspire together, and with divers other persons to the jurors unknown, by fraud, unlawful device, and ill practice in playing at a certain game or sport, and by divers other fraudulent devices and false pretences, unlawfully to win from the said Abraham Rhodes a certain sum of money, to wit the sum of 21. 10s., of the money of the said Abraham Rhodes, and so then and thereby unlawfully to obtain from the said. Abraham Rhodes the said sum of money in this count mentioned by a false pretence, with intent then to cheat and defraud the said Abraham Rhodes of the same, against the form of the statute, &c. By a third count the prisoners were charged with a conspiracy to cheat in the following form. That they unlawfully and fraudulently did combine, confederate and conspire together, with divers, other persons to the jurors unknown, by divers unlawful and fraudulent devices and contrivances, and by divers false pretences, unlawfully to obtain from the said Abraham Rhodes the sum of 21. lOs. of the money of the said Abraham Rhodes, and unlawfully to cheat and defraud the said Abraham Rhodes of the same, against the peace, &c. The evidence disclosed that the three prisoners were in a public house together with the prosecutor Abraham Rhodes, and that, in concert with the other two pri- soners, the prisoner John Dewhirst placed a pen-case on the table of the room where they were assembled, and left the room to get writing paper. Whilst he was absent, the other two prisoners Samuel Hudson and John Smith were the only persons left drinkino- CROWN CASES RESERVED. 265 with the prosecutor, and Hudson then took up the 1860. pen-case and took out the pen from it, placing a pin Hudson's in the place of it, and put the pen that he had taken ^Jase. out under the bottom of the prosecutor's drinking glass, and Hudson then proposed to the prosecutor to bet the prisoner Dewhirst, when he returned, that there was no pen in the pen-case. The prosecutor was induced by Hudson and Smith to stake fifty shil- lings in a bet with Dewhirst, upon his returning into the room, that there was no pen in the pen-case, which money the prosecutor placed on the table and Hudson snatched up to hold. The pen-case was then turned up into the prosecutor's hand, and another pen with the pin fell into his hand, and then prisoners took his money. Upon this evidence it was objec'Eed, on behalf of the prisoners, that no offence within the meaning of the 8 & 9 Vict. c. J 09. was proved by it, and that the facts proved in evidence did not amount to the offence charged in the third count. I thought the objection well founded as to the offence under the 8 & 9 Vict. c. 109., but held that the facts in evidence amounted to the offence charged in the third count, and directed the jury to return a separate verdict on each count, a case having been asked for by the prisoner's counsel for the consideration of the Court for Crown Cases Reserved. The jury returned a verdict of guilty on each of the three counts. The prisoners were sentenced to eight months imprisonment, and committed to prison for want of sufficient sureties. If the Court for the Consideration of Crown Cases Reserved shall be of opinion that the above facts in evidence constituted in law any one of the offences charged in the indictment, and was evidence to go to^ the jury in support thereof, the verdict is to stand for 266 CROWN CASES RESERVED. I860. such of the counts in which the offence is laid to Hudsom's which the evidence applies. ^''''- J. B. Maule, sitting for the Recorder of York. This case was argued, on 28th April, 1860, before Pollock: C. B., Channell B,, Byles J., Blackburn J. and Keating J. Price appeared for the prisoners ; no counsel ap- piaared for the Crown. Price, for the prisoners. — The first two counts of the indictment are framed upon the Gaming and Wa- gers Act, 8 & 9 Vict. c. 109. s. 17., which enacts " that every person who shall, by any fraud or unlawful device, or ill practice in playing at or with cards, dice, tables or other game, or in bearing a part in the stakes, wagers or adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of any game, sport, pastime or exercise, win from any other person to himself, or any other or others, any sum of money or valuable thing, shall be deemed guilty of obtaining such money or valuable thing from such other person by a false pretence, with intent to cheat or defraud such person of the same, and being convicted thereof shall be punished accord- ingly." This provision was intended to meet the ordinary games played at common gaming houses, and was not intended to apply to tricks of this nature. Pollock 0. B.— You may confine your argument to the third count. Price. — That count charges a conspiracy to obtain the money by false pretences. At the trial the case was likened to that of Bex v. Bernard (a), where a person at Oxford, who was not a member of the University, (a) 7 Car. & P. 784. CROWN CASES RESERVED. 267 went for the purpose of fraud, wearing a commoner's 1860 gown and cap, and obtained goods. This was held a "h^^^^^T su&cient false pretence. The present case however ^ase. was nothing more than a bet on a question of fact, which the prosecutor might have satisfied himself of by looking at the pen-case. It is not found as a fact that the prisoners had pre- pared the pen-case, or that they knew that the second pen was in it. This was merely a bet on a sort of conjuring trick or sleight of hand. Blackburn J — The prisoners cheated the prose- cutor into the belief that he was going to bite, when in fact, he was going to be bitten. Price. — This is a mere deceit not concerning the public, which the criminal law does not regard, but is a deceit against which common prudence might have guarded. There was no false pretence on which any one of the prisoners alone could have been convicted of obtaining money by false pretences; and if so, the conviction cannot be supported. Pollock C. B. — Why not? This is a count for conspiracy to cheat. Price. — Yes, by false pretences. Pollock C. B. — There are rules of law applicable to false pretences which do not apply to conspiracy. Channell B. — If the count had omitted the words " by false pretences," it would have been good. Blackburn J If proof was given of an agreement by fraudulent devices to obtain the money, which is the substance of the third count, is there not evidence for the jury ? Price. — If the prosecutor is a party to the fraud, he cannot maintain an indictment. In this case the prosecutor intended to cheat the prisoners. The judgment of the Court was delivered by 268 CROWN CASES EESERVED. I860. Pollock C. B.— We are all of opinion that the Hudson's conviction upon the third count is good, and ought to ^^^^' be supported. The count is in the usual form. The expression " by false pretences" used in it is not to be construed in the technical sense contended for by the counsel for the prisoners. We think that there was abundant evidence of a coBspiracy to cheat. Though it be an ingredient in that conspiracy to in- duce the man who is cheated to think that he is cheating some one else, that does not prevent those who use that device from being amenable to punish- ment. Conviction affirmed. . EEGINA V. JOHN BRADFOED, EICHAED JAMES BEADFOED, JOHN BUTLEE, HENEY DUEBAN, GEOEGE DIMENT, JOSEPH DI- 1860. MENT and FEEDEEICK CLEAVEE. A railway The following case was reserved at the Middlesex placed by the Scssions by the Assistant Judge. across^a'une Johfi Bradford^ Joseph Diment, Frederick Cleaver, of railway Richard James Bradford, John Butler, Henry Durban obstruct the and George Diment were tried before me at the General passage of Sessions of the Peace for the county of Middlesex, any carriage, J • and to endanger the safety of any persons conveyed therein ; but its position was discovered, ■ and the truck removed before any collision took place. The line of railway was constructed under the powers of an Act of Parliament, and was intended for the conveyance of passengers in carriages drawn by the power of steam ; but, at the time of the alleged offence, the conveyance of passengers for hire had not commenced, and the traffic was confined to the carriage of materials and of workmen. Held, that the so placing the truck across the line was an offence within section 15 of 3 & 4 Vict. c. 97., although the line was not opened and no actual obstruction took place. CROWN CASES RESERVED. 269 holden at Westminster on the 7th day of May 1860, 1860. upon an indictment of which the following is a copy. Bbadford's Middlesex, to wit. J The jurors for our lady the '^*'^' Queen upon their oath present that John Bradford, Richard James Bradford, John Butler, Henry Durban, George Diment, Joseph Diment and Frederick Cleaver on the 8th day of April in the year of our Lord 1860 at the precinct of Norwood in the county of Middlesex unlawfully and wilfully did do a certain thing that is to say unlawfully and wilfully (a) did then and there put and place a certain truck called a trolly upon and across a certain railway there called The Great Western and Brentford Railway in such manner as to obstruct a certain engine to wit a locomotive steam- engine then and there using the said railway, against the form of the statute in such case made and pro- vided. 2nd count. And the jurors aforesaid upon their oath aforesaid do furtherpresentthat the said John Bradford, Richard James Bradford, John Butler, Henry Durban, George Diment, Joseph Diment and Frederick Cleaver afterwards to wit on the same day and in the year aforesaid at the precinct aforesaid in the county afore- said unlawfully and wilfully did do a certain thing that is to say unlawfully and wilfully did then and there put and place a certain truck called a trolly upon and across the said railway called The Great Western and Brent- ford Railway in such manner as to obstruct a certain carriage to wit a railway carriage then and there using the railway, against the form of the statute in such case made and provided. 3rd count. And the jurors aforesaid upon their oath (a) The word "wilfully" in the expressly with the object of obr statute means no more than de- structing the carriages, &c. : Reg^ signedly, and it is not necessary to v. Holroyd, 3 M. & Kob. 33^, shew that the defendant did the act VOL. I. U Case. 270 CROWN CASES RESERVED. 1860. aforesaid do further present that the said John Brad- Beadfobd's ford, Richard James Bradford, John Butler, Henry Durban, George Diraent, Joseph Diment and Frederick Cleaver on the said 8th day of April in the year of our Lord 1860 at the precinct aforesaid in the county aforesaid unlawfully and wilfully did do a certain thibg that is to say unlawfully and wilfully did then and there put and place a certain truck called a trolly upon and across the said railway called The Great Western and Brentford Railway in such manner as to endanger the safety of persons conveyed in the said carriage, against the form of the statute in such case made and provided. 4th count. And the jurors aforesaid upon their oath aforesaid do further present that the said John Brad- ford, Richard James Bradford, John Butler, Henry Durban, George Diment, Joseph Diment and Frederick Cleaver afterwards to wit on the same day and in the year aforesaid at the precinct aforesaid in the county aforesaid unlawfully and wilfully did do a certain thing that is to say unlaAvfuUy and wilfully did then and there put and place a certain truck called a trolly upon and across the said railway called The Great Western and Brentford Railway in such manner as to endanger the safety of persons conveyed upon the said railway, against the form of the statute in such case made and provided. The prisoners severally pleaded guilty, and judg- ment was respited until the decision of the Court for the Consideration of Crown Cases Reserved was ob- tained upon the case hereinafter stated. John Bradford, Joseph Diment and Frederick Cleaver were committed to the House of Correction for the county of Middlesex, and the other prisoners were dis- charged on recognizance of bail to appear and receive judgment at future sessions. The indictment was framed upon the statute 3 & 4 CROWN CASES RESERVED. 271 Vict. c. 97., by the 15th section of which it is enacted i860. that every person who shall wilfully do or cause to be ^ '~r aone anything m such manner as to obstruct any Case. engine or carriage using any railway, or to endanger the safety of persons conveyed in or upon the same, or shall aid. or assist therein, shall be guilty of a mis- demeanor. By the 21st section of the same Act it is enacted that whenever the word railway is used in this Act, it shall be construed to extend to all railways constructed under the powers of any Act of Parlia- ment, and intended for the conveyance of passengers in or upon carriages drawn or impelled by the power of steam, or by any other mechanical force. The railway in question was constructed under the powers of an Act of Parliament, and was intended for the conveyance of passengers in carriages drawn by the power of steam, but at the time of the committing the alleged offence the conveyance of passengers for hire had not commenced, and the traffic was confined to the carriage of materials and of workmen who were from time to time conveyed upon the railway in car- riages drawn by the power of steam. A railway truck was placed by the prisoners across the railway, and was so placed as to obstruct the passage of any car- riage, and to endanger the safety of persons conveyed therein, but its position was discovered and the truck removed before any collision occurred. It was objected that upon these facts the case was not within the statute, because, 1st. The railway was not used for the conveyance of passengers for hire. And 2ndly. That no actual obstruction took place. I overruled both objections, and I have now to submit to the Justices of either Bench and Barons of the Exchequer whether I was right in so doing. W. H. Bodkin, Assistant Judge, u 2 272 CEOWN CASES RESERVED. 1860. This case was argued, on 2nd June 1860, before Bradfoed's Cockburn C. J., Martin B., Ceompton J., Bramwell Case. B. and Willes J. Digly appeared for the Crown, and Bibton for the defendants. Bibton, for the defendants. — Section 21 of the 3 &4 Vict. c. 97. enacts that the word ''railway" shall be construed to extend to all railways " intended for the conveyance of passengers." Here the railway at the time of the commission of the alleged offence was not used for the conveyance of passengers. The preamble of the statute shews that it was passed for the protec- tion of the public, the words being "whereas it is ex- pedient for the safety of the public to provide for the due supervision of railways;" and the provisions are all aimed at the prevention of accidents to the public. There was no intention on the part of the Legisla- ture to control a railway contemplated, but not yet made. Until the railway was completed and opened, the works remained a mere private enterprise and private property as much as if they were in a private garden. The word " intended," in section 21, does not necessarily mean in futuro, but merely means intended at the time when the railway is constructed and finished; and this view is consistent with the preamble. If the word "intended" meant "intended . from the date of the first step," it would lead to absurd consequences; for it might be held that after the first sod was turned, and though no line was yet laid down, this stringent penal statute would apply to every obstruction put upon the contemplated line. Cockburn C. J. — Suppose a railway is not finally completed and not opened, but is ready to be opened, and a trial trip is taken, and some one wilfully puts some obstruction on the line, would that be within the Act of Parliament? CEOWN CASES RESERVED. 273 Rihton — That would be nearer than this case ; but I860. I should contend that it would not be within the Bradfoed's statute. Case. Crompton J. — If the works had only been partly laid down it might not be within the statute, which speaks of it as a railway. Ribton. — This was not a complete railway. It could not be opened for the public, for the Government inspector had to inspect it previously. BbamwelIi B — Suppose there had been a goods train only, and an obstruction had been put on the line, would that have been within the Act ? Ribton. — I should say not. That, however, assumes that there is a complete railway opened and used. Here it was not so, and there were no passengers to be endangered. CocKBURN C. J. — Still there was one carriage and engine upon the line. We must take it that it has been constructed and is intended to be used, though not actually opened. This is within the mischief of the Act. Ribton. — This is a highly penal statute, and the Court will not give a construction to the word " in- tended" which would bring within the Act all those who put anything on the line after the first sod had been taken up. The second objection is that there was no actual obstruction. In order to bring the offence within the statute there must be some train or engine actually obstructed. Martin B. — You say that, if a person puts a stone or a piece of iron on a line of railway, it is no offence within the statute unless and until some engine is actually obstructed. Cbompton J.— The statute says " shall wilfully do or cause to be done anything in such manner as to obstruct." Does not that mean if the obstruction is Case. 274 CROWN CASES EESERVED. I860. . put in such a place and such a manner that any engine Bbadfoed's coming along may be obstructed? Ribton. — That is not the plain meaning of the words which by my contention are only meant to apply to a case where a person shall actually obstruct an engine or carriage. The oflFender must either actually ob- struct an engine or carriage, or 'endanger the safety of persons conveyed ; whether a thing does endanger is a question for the jury ; but here there were no per- sons conveyed within the meaning of the statute. The only persons carried along the line were workmen for the private convenience of the contractor. They were not passengers or persons conveyed for hire, whom the statute was passed to protect. CocKBTTEN C. J. — Surely the workmen are " persons conveyed." Ribton. — The meaning of the words seems to be " passengers for hire." It could not be said where there is a train of goods and nobody but the guard or driver is with it, and there is an obstruction, that that would be within the statute. CocKBURN C. J. — If there are a guard and stoker only on the train, would they not be "persons con- veyed in or upon the same" within the statute ? Digby, for the Crown, was not called upon by the Court. CocKBUEN C. J. — I am of opinion that there is really no difficulty in this case. We must assume as a fact that the railway was completed, and that all that required to be done was to open it for the public traffic. In the meantime, and before this final stage, the workmen were occasionally conveyed to and from particular spots on the line where their presence was necessary in order to complete it, and make all ready for the purpose of the line being thrown open. The question is, whether persons who placed obstructions CROWN CASES RESERVED. 275 on the line, under these circumstances, committed an 1860. offence under section 15 of 3 & 4 Vict. c. 97.? It BEADroan's appears the parties were mere boys, and it might be a ^^^®- question whether it was worth while to prosecute; still the prosecution was instituted, and we are to take the facts as they are stated. The prisoners did put an obstruction on the line, and they put it in such a position as to endanger the safety of the persons con- veyed. I am of opinion that such a case comes within both branches of the alternative stated in the section. There was an obstruction put on the line, and it was put so as to endanger the safety of the persons con- veyed. It was contended by the counsel for the pri- soners, that there can be no obstruction until some train be absolutely obstructed ; but such a construction cannot be maintained. The object of the Legislature was obviously to prevent any disaster to those using the railway, and to punish those who put obstructions in such manner as was likely to cause such disaster. The case is therefore within the intention of the statute; and though, in the ordinary course of things, it would generally be after the railway was fully opened that the public required to be protected; yet an obstruction before that time is within the mischief as weU as the words of the statute. The conviction must be affirmed. The other learned Judges concurred. Conviction affirmed (a). (a) As to the circumstances 14 & 15 Vict. c. 19. ss. 6. 7. ; Regina under which an offence of this v. Court, 6 Cok C. C. 202. character becomes a felony, see 276 CROWN CASES RESERVED. 1860. REGINA V. JOB TIMMINS. The defend- ant was con- victed on an indictment, framed upon 9Geo.4.c.31. s. 20., for taking an un- married girl under sixteen out of tlie possession of her father, and against his will. It was proved that the pri- soner (who had previ- ously stayed out with the girl for a The following case was reserved and stated by the Common Serjeant of the city of London. The prisoner was indicted at the September Sessions, 1860, holden for the jurisdiction of the Central Cri- minal Court, under the stat. 9 Geo. 4. c. 31. s. 20., for that he, on the 19th August, 1860, at the parish of All Saints, Poplar, did unlawfully take and cause to be taken one Ann Butler, an unmarried girl under the age of sixteen years, to wit of the age of fourteen years and five months, out of the possession and against the will of Isaac Butler, her father, he the said Isaac Butler then and there having the lawful care and charge of her, against the form of the statute, nigU^having ^^'^ ^"^"^ against the peace, &c. met her by arrangement, stayed with her away from her The statute enacts that if any person shall unlaw- fully take, or cause to be taken, any unmarried girl being under the age of sixteen years, out of the posses- father's house sion, and against the will, of her father or mother, or 101? thrpp of any other person having the lawful care or charge of her, every such offender shall be guilty of a misde- meanor. It was proved on the trial that, on the 17th August, the prisoner, who is a married man, living with his wife, asked the girl, Ann Butler, if she would mind to'gratifybls goi^g out with him on the Sunday, to which she passions and answered "No." He was previously w^ell known to then allow ., , , "■ . ■' her to return her, and shc had, on a former occasion, stayed out and home ; but not with a view of keeping her away from her home permanently. Held, that the evidence justified the conviction. days, sleep- ing with her at night ; that he took her away without her father's con- sent and against his will, in order Case. CROWN CASES EESERVED. 277 slept with him for a whole night, away from her home. I860. On Sunday the 19th August, in fulfilment of the en- "timmws's gagement, she went and met the prisoner near Poplar Church. They went to London together, and spent three days in visiting places of public entertainment, sleeping together at night, and on Wednesday morn- ing, the 22d August, on getting up, the prisoner said to her, " I'll go to work, and you go home." They then separated, and the girl returned home. The father of the girl swore that his daughter was absent without his knowledge and against his will. In answer to questions which I left to them, the jury found that the father did not consent, and that the prisoner knew he did not consent ; that the prisoner took the girl away with him in order to gratify his pas- sions, and then allow her to return home, but not with a view of keeping her away from her home permanently. Upon this finding I postponed the judgment, in order to have the opinion of the Court upon the case, and the question for the Court is, whether, on the facts so found, any offence has been committed under the statute. The prisoner, being unable to procure bail, remains in custody. Thomas Chambers, Common Seijeant. This case was argued, on 10th November, 1860, before Eele C. J., Ckompton J., Bramwell B., Chan- NELL B. and Hill J. Sleigh appeared for the Crown. No counsel appeared for the prisoner. Sleigh, for the Crown — The conviction was right. Sect. 20 of Stat. 9 Geo. 4. c. 31., upon which this in- dictment is framed, must be read in connection with sections 19 and 21. It is clear that sect. 20 does not contemplate the necessity of the taking being perma- nent in order to constitute the offence. Whenever a Case. 278 CROWN CASES RESERVED. 1860. person takes a girl of that age against her parents' TiMMtNs'a consent, and severs the possession of the parent, he is guilty of the crime contemplated by the section. Ceompton J. — Would you say that the section would apply to the case of a person taking away a girl for the purpose of converting her ? Or if a man makes a sign to a girl in her father's cottage, and she comes out and goes away with him for a short time, would that be within the section. Is it not a question of degree ? Sleigh Each case must be judged according to its peculiar circumstances. The cases put might fall within the meaning of the section. Ceompton J. — In the case first put by me, there might be a permanent taking; but supposing the section not to apply exclusively to the taking away of a child for the purpose of defiling her, would it apply if the purpose were to take a child to the play ? Sleigh cited Regina v. Meadows (a), Regina v. Mankletow (&) and Regina v. HopMns (c). Crompton J — In Regina v. Mankletow the parties went away without the intention of returning. Beamwell B. — The important question is, what is the meaning of " possession of the father?" Sleigh. — I submit that the ofivence is committed where the possession is severed, so that the father no longer has the care and control of the daughter. The evidence in this case is sufficient to support the con- viction. Eele C. J. — We are of opinion that the conviction must be affirmed. The statute was passed for the protection of parents, and for preventing unmarried girls from being taken out of the possession of their parents against their will ; and it is clear that no de- ception or forwardness on the part of the girl in such («) 1 3r. & Kir. 399. (V) \ Dears. C. C. K. 139. X O'Ia A ' (fl^ {c) Car. & Marsh. 254. CROWN CASES RESERVED. 279 cases can prevent the person taking her away from 1860. bein^ guilty of the offence created by this section, timmx^b's ine difhculty which we have is to say what constitutes '^^'«- a taking out of the possession of the father? The taking away might be consistent with the possession of the father, if the girl went away with the party intending to return in a short time; but when a per- son takes a girl away from the possession of her father, and keeps her away against his "will for a length of time, as, in this case, keeping her away from her home for three nights, and cohabiting with her during that time, we think that the evidence justified the jury in finding the taking to be a taking out of the possession of the father within the meaning of the statute. The prisoner took the girl away from under her father's roof, and placed her in a situation quite inconsistent with the father's possession. In our judgment, there- fore, the jury were justified in their verdict by the evidence before them, which we consider to be the point submitted to us, although the prisoner did not intend the taking to be permanent, but when his lust was gratified, intended to cast the girl from hira. We limit our judgment to the facts in this particular case. It may be that a state of facts might arise upon which the offence would be complete in law when the girl passed her father's threshold, as when she is taken away with the intention of keeping her away perma- nently; but we mean it to be understood that, although we afiirm this conviction, we do not intend to say that a person would be liable to conviction under the section if it should appear that the taking was intended to be temporary only, or for a purpose not inconsistent with the relation of father and child. It is sufficient for us to say that in this case the convic- tion was justified by the evidence. The other learned Judges concurred. Conviction afiirmed. 280 CROWN CASES RESERVED. ■/, i'^t*"- JfJ 1860. EEGINA V. THOMAS NEWELL HOLT. The prisoner The following case was reserved and stated by the with obtain- Chairman of the Quarter Sessions for the West Riding i-rfrnTY; oi Yorkshire. false pre- At the General Quarter Sessions of the Peace for waseniployed the West Riding of the county of York, holden at by his master t^^^ ^^ Monday the 15th day of October 1860, the to take orders ' "^ ■' _ for goods, but defendant Thomas Newell Holt was tried upon an indictment charging him with the misdemeanor of thorized to receive the money. Eleven days after he was so employed he obtained the money mentioned in the indict- ment from H. by falsely representing that he was authorized by his em- ployer to receive it. For the pur- having obtained the sum of 9s. 9i. from William Hirst by false pretences. It appeared in evidence that the defendant was employed on the 19 th day of April, by one Luke Uttley, to take orders for goods, but was not authorized, but forbidden, to receive money on behalf of Luke Uttley, nor did he at any time pay over or account for any moneys received to Luke Uttley. That on the 13th day of April the defendant ob- tained from William Hirst the sum of 9s. 9tZ. charged in the indictment, by the representation that he was ing\he ^'^°^" authorized by the said Luke Uttley to receive that sum intent of the on his behalf for goods delivered in pursuance of an prisoner, i i i i /. i evidence was order taken by the defendant. his°hav1ng, ^^^ couuscl on the part of the prosecution tendered on a day not the evidence of one Samuel Uttley to the effect that, specified but . . r- i i • ^• within a week On a day not speciiied, but ■\vithin a week from the Srnthe*'""^ said 13th day of April, the defendant obtained from moneys were him the Said Samuel Uttley the sura of lis by a like obtained from H., obtained another sum of money from another person by a similar false pretence, such obtaining not being charged in the indictment. — Held, that the evidence was not admissible. CROWN CASES RESERVED, 281 representation that he (the defendant) was authorized 1860. by the said Luke Uttley to receive money on his behalf ~1bw7~ for goods delivered in pursuance of a like order taken Case. by the defendant, such last mentioned obtaining not being charged in or in any way referred to in the indictment. The counsel for the prisoner objected that the evi- dence so tendered was inadmissible. I held, as Chair- man, however, that such evidence was admissible for the purpose of proving the intent of the prisoner when he committed the acts charged against him in the indictment. I therefore received the evidence, but reserved the question whether it was properly admitted for the opinion of the Court for the Con- sideration of Crown Cases Reserved. The prisoner was convicted, and sentence of im- prisonment for four calendar months in the House of Correction at Wakefield, with hard labour, was passed upon him, and he is now admitted to bail to render himself in execution. The question for the opinion of the Court is : Whether the evidence of Samuel Uttley was or was not rightly admitted. The case was considered, on 10th November 1860, by Eele C. J., Crompton J., Bbamwell B., Chan- NELL B. and Hill J. No counsel appeared. Ekle C. J.— This conviction must be quashed. In the statement of the case submitted to us we cannot find any facts that would warrant us in saying that the evidence was admissible. The other learned Judges concurred. Conviction quashed. 282 CROWN CASES RESERVED. 1860. EEGINA V. BUKNSIDES. The following case was reserved and stated by the Chairman of the Sessions for the North Riding of Yorkshire. At the Midsummer Quarter Sessions for the North Riding of Yorkshire, holden at Northallerton, on the 3d day of July 1860, John Burnsides was indicted for obtaining a piece of carpet under false pretences. The following is a copy of the indictment. North Riding of the "] The jurors for our lady the county of York, iQueen upon their oath present to wit. J that John Burnsides on the 8th day of May in the year of our Lord one thousand eight hundred and sixty unlawfully knowingly and design- edly did falsely pretend to one George Stonehouse that a certain person who lived in a large house down the street and had had a daughter married some time back had been at him the said John Burnsides about some carpet and had asked him the said John Burnsides to procure a piece of woollen carpet to wit had'anyTuch about twclvc yards by means of which said false pre- person asked tences the Said John Burnsides did then unlawfully the prisoner , . . i ■ n ^ 07 i to procure obtain from the said George otonehouse twenty yards carpet!''^ ° 0^ wooUen carpet of the goods and chattels of the The evi- g^id Georqe Stonehouse with intent thereby then to denoe was -, r 1 ^ • -i • n i that the pri- defraud, wher^s in truth and in fact no such person soner ob- tained twenty yards of carpet by stating to the prosecutor, who was a shopkeeper in the village of S., that he wanted some carpeting for a family living in a large house in the village who had had a daughter lately married ; that the prisoner afterwards sold the carpeting so obtained to two different persons ; and a lady was called, who lived in the village, whose daughter was married about a year previously, and who stated that she had not sent the prisoner to the prosecutor's shop for the carpet. — Held, that there was a sufficient false pretence alleged and proved, and that it was sufficiently negatived by the evidence. The indict- ment charged that the pri- soner ob- tained twenty yards of carpet by falsely pre- tending that a certain person who lived in a large house down the street, and had had a daughter married some time back, had been at him about some carpet and had asked him to procure a piece of car- pet; whereas no such per- son had been at the prisoner about any CROWN CASES RESERVED. 283 as aforesaid had then or at any other time been at I860, the said John Burnsides about any carpet nor had Buensides's any such person as aforesaid asked the said John ^^'^• Burnsides to procure any piece of woollen carpet whatsoever, to the great damage and deception of the said George Stonehouse to the evil example of all others in the like case offending, against the form of the statute in such case made and provided and against the peace of our lady the Queen her Crown and dignity. The evidence was that the prisoner went to the prosecutor's shop in the village of Snainton, and stated that he wanted some carpeting for a family living in a large house in that village, who had had a daughter lately married. Upon this the prosecutor gave the prisoner about twenty yards of carpeting, which the prisoner afterwards sold in the neighbour- hood to two different persons at a higher price than that which the prosecutor would have charged. The only evidence to negative the false pretence charged in the indictment was that of a lady living in the village of Snainton, whose daughter was married about a year ago, who stated that she had not sent the prisoner to the prosecutor's shop for the carpet. At the close of the case for the prosecution, the prisoner's counsel objected that the indictment did not sufficiently allege any false pretence : that upon the evidence there was nothing to go to the jury, and thirdly, that the false pretence alleged in the indict- ment had not been sufficiently negatived by the pro- secution. The Court decided that there was a sufficient false pretence alleged in the indictment, and that there was evidence to go to the jury in support of it. The jury returned a verdict of guilty. The judgment of the Court was reserved until the Case. 284 CROWN CASES RESERVED. 1860. opinion of the Court for the Consideration of Crown BnRNsiDEs's Cases Reserved could be taken on the points raised by the prisoner's counsel. The opinion of the Court is therefore requested on the points reserved. The prisoner was discharged on recognizance of bail to appear at the next Epiphany Sessions to re- ceive the judgment of the Court. Cathcart, Chairman. This case was considered, on the 10th day of No- vember, 1860, by Eble C. J., Crompton J., Beam- well B., Channell B. and Hill J. No counsel appeared. Per CuEiAM. Conviction affirmed. 1860. EEGINA V. CHAELES GUELDER. The prisoner The foUowing case was reserved and stated by wasconvicted ^^^^^ ^ indictment j^i the Summer Assizcs 1860, for the county of York, ment. It Churks Guelder was tried before me and found guilty oAhe pri"^'^ on two counts charging him with embezzlement. soner, who was the assistant overseer of a township, to collect the rates ; and the course was upon receipt to pay them into a bank to the account of the overseers, and then to obtain the overseers' receipts for the sums so paid. It was his duty also to enter the rates when received in a book, and at the audit he charged himself by the entries in his book and discharged himself by the receipts of the overseers. Having misappropriated certain moneys which he duly entered in the book when received, he fraudulently obtained from the overseers receipts for the several sums stated in the indictment by falsely telling them that he had paid the money into the bank. These receipts he produced to the auditor, and so deceived him as to his having handed over the moneys. — Held, that the prisoner was rightly convicted, and that the fact of his entering the sums, when received, in his book did not alter the character of his offence. CEOWN CASES RESERVED. 285 For the purposes of this case the conviction of 1860. i^harles GueUer is to be deemed and taken to be a g.eli>er-s good conviction, unless the facts about to be stated do Case, not in law constitute the crime of embezzlement. The prisoner was assistant overseer of the township of Bradjield, and such servant as stated in the indict- ment. It was the prisoner's duty, as such servant, to col- lect the rates from the ratepayers of the township. The course was for the prisoner upon receiving any rates to pay them into a neighbouring bank to the account of the overseers, and then to obtain from the overseers, or one of them, a receipt, in a printed form signed by such overseer, for such sum so paid to their account. The prisoner also kept a book in which it was his duty to enter from time to time the various sums received by him. At the audit, which took place half-yearly, the accounts thus entered as received by the prisoner were contrasted with the receipts given to him by the over- seers. He charged himself by the book, and discharged himself again by the overseers' receipts. The above being the course of business, the prisoner in the month of May in the present year, on the day of , and just previous to the audit for the half-year, went to two of the overseers and obtained from them several receipts for various sums, the sums stated in the indictment. He obtained these receipts fraudulently by stating that he had paid the said sums into the bank to the overseers' account, which in truth he had not. He had in fact previously appropriated the said sums to his own purposes ; and he obtained the receipts with the view of deceiving the auditor as to his having VOL. I. X 286 CROWN CASES RESERVED. I860, handed the monies over to the overseers. He pro- Gdemee's -duced the receipts at the audit, and was successful. ^^^°' But he had duly and properly entered the said sums when received in the aforesaid book, and had thus openly charged himself with the receipt of them. It was contended that, having thus charged himself with the receipt of the money, he could not be guilty of embezzlement. The prisoner was convicted and sentenced, but I reserved for the consideration of this Court the follow- ing question : Could the prisoner on the . above facts be lawfully convicted of the crime of embezzlement? James Wilde. This case was considered, on 10th November^ 1860, by Ekle C. J., Crompton J., Bkamwell B., Chan- NELL B. and Hni, J. West appeared for the Crown, but was stopped by the Court ; no counsel appeared for the prisoner. Eele C. J. — The conviction must be affirmed. It is perfectly clear that the money was embezzled and that the offence was committed with one of the ordi- nary concomitants of fraud, fraudulently accounting. There is no reason for doubting the propriety of the conviction. The question submitted to us is, whether the prisoner is entitled to be acquitted because he made a correct entry of the sums when received in his book : I think not. Those entries were probably made with forethought and a view to the defence. The other learned Judges concurred. Conviction affirmed. CROWN CASES RESERVED. 287 / BEGINA V. GEORGE OLIVEE. i860. 1 HE loUowing case was reserved and stated by the Upon a count Chairman of the Northumberland Sessions, held at ing,'beating, Alnwick, on the 17th day of October, 1860. wounding ' rpi . _, •'_ '. and occasion- ine prisoner (j-eorge Oliver was indicted at these ing actual Sessions for a misdemeanor, of which indictment the agfiist Ae™' following is a copy : * statute, a pri- 7.7-7 , , _ .^ soner may be JS orthumberland, 7 The jurors lor our lady the convicted to wit. j Queen upon ^ their oath present assault!"'""'' that George Oliver on the eighteenth day of August in the year of our Lord one thousand eight hundred and sixty unlawfully and maliciously did inflict upon one Robert Bainbridge some grievous bodily harm, against the form of the statute in such case made and pro- vided and against the peace of our lady the Queen her Crown and dignity. 2nd count. And the jurors aforesaid upon their oath aforesaid do further present that the said George Oliver afterwards on the said eighteenth day of August in the year aforesaid unlawfully did make an assault in and upon the said Robert Bainbridge and did then unlawfully beat wound and ill-treat the said Robert Bainbridge and did thereby then unlawfully occasion actual bodily harm to the said Robert Bainbridge and then did other wrongs to the said Robert Bainbridge, against the form of the statute in such case made and provided and against the peace of our said lady the Queen her Crown and dignity. Upon this indictment the jury returned a verdict of "guilty of a common assault." X 2 Case. 288 CROWN CASES RESERVED. I860. An objection was taken by the counsel for the pri- Oliveb's soner that this finding amounted to an acquittal, and he moved in arrest of judgment. The Court thereupon postponed the judgment and reserved the following question of law, which had so arisen on the trial, for the consideration of the Justices of either Bench and Barons of the Exchequer, under the provisions of the statute of the 11 & 12 Vict c. 78., viz. Whether this conviction can be sustained ? And in the meantime it was determined that the prisoner be committed to the common gaol at Morpeth, until he shall enter into a recognizance, himself in 50?. and two sureties in 251. each or one in 501. ; conditioned to appear at the Court of Quarter Sessions to be holden for the county of Northumberland, next after he shall have notice given to him by the prosecutor, to receive the judgment of this Court, if it should be empowered to pass any such judgment. This case was considered, on 10th November, 1860, by Eble C. J., Ceompton J., Beamwell B., Chan- NELL B. and Hill J. No counsel appeared. The Court heTd that the conviction could be sus- tained on the second count. Conviction on the second count affirmed. CEOWN CASES RESERVED. £89 REGINA V. JAMES TONGUE. i860. The following case was reserved and stated by the The defend- Kecorder of Birmingham. conVTcter^^ At a Court of General Quarter Sessions, held at of embezzle- Jiirmingham, on the 11th day oi January, in the year of secretary of our Lord 1860, before me, James Tongmy^&s charged ciX" h;^ with embezzlement. The prisoner pleaded not guilty. "^"^'^^ ^^"^^ The jury found their verdict against the prisoner. thft"o/ The facts were these. The prisoner was secretary moniy"fl- to a money club held at the house of Joseph Whiles, *i'°".gi' *e Johnson's Head Inn, Birmingham. The rules of the club mon'ey' was which were printed, and a copy given to each member, "amtd^as"''^ were (as far as they are material to the present case) ?"« of them V" n "^ in the rules, as tolloWS : ^hich were Eule 2. That payment of one night's instalment ThlSd- shall constitute any person a member approved of ant was by this society, who may subscribe for one or more the club to shares. Club night to mean every alternate Monday. 1^0"^°".* Rule 9. Two of the members shall act as stewards missorynote for one quarter in rotation as their names appear on perty or get tl»e books. ^^l^^ Rule JO. Three members shall be appointed for note was one quarter, to make inquiries as to the sufficiency of him by the the sureties proposed, who shall make their report on f member"f* the following club night. That the said committee the club, who IT, 1 r I- 1 • • desired that shall be exempt from standmg as stewards m rotation, his name should not be used in legal proceedings. The note was payable to the treasurer's order, and the defendant indorsed the treasurer's name on the note and employed an attorney, who issued a writ at the suit of the defendant. In consequence of the action money was paid to the defendant by one of the makers of the note, the receipt of which the defendant denied, and fraudulently withheld the money from the club and appropriated it. Held (Ckomptoit J. dubitante), that the defendant was rightly convicted. Case. 290 CROWN CASES RESERVED. I860. Rule 12. It shall be the duty of the secretary, when Tongue's any important business requires it or the society thinks proper, to summon, by circular, all the mem- bers to a special meeting. Rule 17. That Mr. Tongue (the prisoner) be ap- pointed secretary to this society, who shall receive for his services a fair remuneration to be decided by the members, and shall be exempt from paying the re- freshment money. He shall make the promissory notes on demand, and shall always be one of the com- mittee : should he not attend or send a proper person to act for him, he shall forfeit Is. Qd. Rule 21. Mr. Joseph Whiles shall act as trustee during the pleasure of the society, who shall sign all orders upon the treasurer for payments. All cheques or orders upon the treasurer to be countersigned by the secretary. Rule 14. All monies belonging to this Society shall be lodged in the district bank, and the proprietor of the house be deputy treasurer (during the club's plea- sure) to take all monies amounting to 10?. and up- wards to the said bank to be deposited by him thus : " No. 4, Fifty pounds Society held at Mr. JosephWhiles, Johnson's Head Inn, Edmund Street." The bank book to be laid before the society each club night. Rule 23. No alteration shall be made to these arti- cles, unless notice thereof be given according to article 1 2, and such alteration be approved of by a majority of the members then present. The practice of the club was for the stewards to receive the payments of members, and to pay over such monies to the deputy treasurer Joseph Whiles, and for Whiles to retain in his hands all the monies and securities belonging to the club, the notes being pasted in the book called the bond book, which re- mained in the custody of Whiles. In the month of CROWN CASES RESERVED. 291 April, 1 8 5 7, a promissory note was made by one Brough 1 860. as principal, and by Starhey and Adcock as co-sureties, Tohgub's for the sum of 60/., payable to the order of Joseph ^*^®' Whiles, which said note the property of the club was, by order of the club, taken out of the bond book, and handed to the prisoner by Whiles. In consequence of doubts as to the solvency of the makers of the note in question, the prisoner was directed by the club then in meeting assembled to sue upon the note so handed to him by Whiles, or get better security for the money which had been advanced upon it. At the time when the note was handed to the prisoner, l^A&s desired that his name should not be made use of in any legal proceedings. After receiving the note, the prisoner endorsed it with the name of Whiles, and employed an attorney, who issued a writ against the makers of the note at the suit of the prisoner. In consequence of the action so brought, Adcock, one of the joint makers of the note, paid to the prisoner two several sums of 30/. and 10/., the monies charged in the indictment. Henry Jenkins and the other parties mentioned in the indictment, except Whiles, were members of the club. Whiles was not a member. The prisoner, on several occasions after the receipt of the moniesin question, denied such receipt, and alleged, in answer to inquiries made, that he had not received the money on the note, but had obtained a better security from Brough. It was proved that the pri- soner had received these several monies. The prisoner after the receipt of the monies in question returned the note to Whiles as unpaid, and the note was repasted in the bond book.' I put the following questions to the jury. 1st. Did the prisoner receive the monies in question ? 2nd. Ought he to have paid them over to the club ? 3rd. Did he withhold them from the club fraudulently? And thejury specially found each of such 292 CROWN CASES RESERVED. 1860. questions against the prisoner, and also found him Tongde's guilty generally. Case. ijhe Court, having grave doubts of the validity of a conviction on the evidence above set forth, respited judgment and discharged the prisoner upon bail. The questions are : 1. Was the prisoner a clerk or servant within the meaning of stat. 7 & 8 Geo. 4. c. 29. s. 47., or was he a person employed for the purpose of receiving the money in question, or was he a person employed in the capacity of a clerk or servant? 2. Was the money in question received by the pri- soner by virtue of his employment or in his capacity of a clerk or servant ? 3. Was the money in question received by the pri- soner for or in the name or on the account of his master or masters? M. D. Hill, Recorder. This case was argued, on 10th November, 1860, before Eele C. J., Ceompton J., Bramwell B., Chan- NELL B. and Hill J. O'Brien appeared for the Crown, and Gihhons for the prisoner. Gibbons, for the prisoner The prisoner did not receive the money as clerk or servant within the meaning of the statute. It was not his duty as secretary to receive the money, and in this case he was especially directed to sue, the property in the note being given to him for the purpose. The entire transaction authorized him to do what was necessary to sue — as to employ an attorney and to incur costs. The indorsement of WMles's name, and the delivery of the note to the prisoner, passed the property in the note with its accessories. When the action was com- menced, it was the prisoner only who could have CROWN CASES RESERVED. 293 entered satisfaction on the roll, or released the cause 1860. Hill J — Was not the indorsement of Whiles's ^''''^• name necessary to make him owner ? The prisoner himself wrote Whiles' s name upon the note. Gibbons. — There was a delivery of the note to the prisoner by Whiles, and that must, on the principle of the maxim "omnia prEesumuntur rite esse acta," be taken to be a good delivery, and made for the purpose of passing the property in the note to him. If he had indorsed WhiUs's name fraudulently, it would have been a forgery ; but it is not disputed that the prisoner had the authority of Whiles to sue upon it. He could only sue upon the note as attorney, or as the holder; not being qualified to sue as attorney, he could only sue as principal and owner of the note. The club had divested themselves of all legal pro- prietorship in the note which they had ever possessed, and only retained an equitable right to it. The pri- soner's title to the note gave him title to the proceeds, which, when received, became his own property, sub- ject only to the equitable rights of the club. In Regina v. Harris {a) the prisoner, being the miller at the county gaol, received and ground grain at the county mill contrary to the usual practice, and appro- priated the money for the grinding ; and it was held he could not be convicted of embezzlement, as the conclusion to be drawn from the facts was that he had made an improper use of the mill by grinding the corn for his own benefit, and consequently that he did not receive the money for or on account of his masters. It could not be said that the money was received to the use of the club, for before handing it over the defendant had a right to deduct the costs for (a) Dears. C. C. 344. 294 CROWN CASES RESERVED. 1860. which he had a lien on the sums received. At best Tongue's he was but a bare trustee for the club ; and although ^^^^- he might have been made liable in equity, a Court of law, qud Court of law, could not have given any remedy to the club in respect of the proceeds of the note. O'Brien, for the Crown.— All the elements of em- bezzlement are present in this case. The prisoner was the servant and secretary of the club ; and al- though he was not expressly charged by the rules to receive monies for the club, still, he being their servant, if he once received money as such, that was sufficient for his conviction. In Rea; v. Hughes {a), where a drover was employed in a single instance to drive a cow and calf to a person to whom they were sold, and to bring back the money they were sold for, he was held to be a servant within the meaning of the Act. R. v. Jenkins (6), Spencer's Caseic). Hall's Case{d) shews that the prisoner, being secretary only, only held the note in the capacity of servant of the club, in which the property remained. The club was merely a money club, without legal property. The defendant was told to take the proper means to re- cover the amount, and the suit was mere machinery for that purpose. There was no obligation upon him to incur personal liability for costs. Bramwell B For what I can see in the case, the defendant had no authority to employ an attorney. He was told to sue for the club. O'Brien. — It cannot be competent to a servant by an Act of his own to vest his master's property in himself The property in the note, therefore, remained in the club, and the proceeds were received for and on (a) Ry. & Moo. 370. (c) Russ. & Ry. 299. (i) 9 Car. & P. 38. (d) Ry. & Moo. 474. Case. CROWN CASES RESERVED. 295 account of the club. The argument that, by indorsing 1 860. Whiles's note contrary to Whiles s authority, the pri- "jongue's soner could transfer the property in the note and proceeds to himself is fallacious. Gibbons, in reply. — The note having been handed to the defendant to sue upon, there was an authority to him to do that which was necessary for that purpose. Eele 0. J. — I think that this conviction ought to 'be affirmed. The first question put to us is, if the prisoner received the money in question as a clerk or servant ? Now he was the secretary of the club with a salary. His duties are detailed in the rules sent to us ; and although he was not specifically charged with the duty of receiving money for the club, he had se- veral duties to perform cognate to the receiving of money, namely to make applications for interest or instalments due, and for better security or part pay- ment. If the ordinary duties of a person in the em- ploy of another are proximately connected with the receiving of money, the receipt of money for his employer and appropriation of it to his own use would make him liable to the charge of embezzlement. It was so laid down in Spencer's Case (a). And it is sufficient if there was a specific employment to receive money on one occasion only. The case, therefore, seems to me to fall within the statute as far as the employment as a servant was concerned. Then, was he within the statute aS far as relates to the receipt of the money? Had he a right to the repayment of the loan and to hold the money as collateral security for the costs? If this had been a mere loan, and the prisoner had been sent to apply for the money or for better security, I think there would have been no doubt that the receipt would have been to the use of (a) Russ. & Ry. 299. 296 CROWN CASES RESERVED. 1860. the club. The strength of Mr. Gibbons s argument Tongue's was, that the prisoner had a cause of action on the ^^^®- promissory note. Now what passed between the club and the prisoner had not the effect of passing the ab- solute property in the note to him as against the club. That gave only a limited authority, namely to sue upon it. As between him and the club, there is no- thing to shew that they authorized him to receive the money and become the absolute owner of the note; and" I take the finding of the jury to have answered in the affirmative the question put to us — " Was the money received by the prisoner for or in the name or on the account of his master or masters ?" The jury have found that the prisoner had no lien on the money in the capacity of plaintiff, or as making himself liable to the costs of the action. The conduct of the prisoner is clear; he was acting fraudulently, for when asked about it he declared, on several occasions, that he had not received the money on the note. Crompton J. — I am somewhat in the situation of the learned Recorder, and entertain a doubt of the propriety of this conviction. It is not pretended that the prisoner received the money by virtue of his ge- neral authority, but my brother Erie has used the right expression — that the receipt in this case was something cognate to the general duty of the pri- soner. It has been held, that if a prisoner received money as a clerk or servant on one particular occasion, that would do. My doubt is, whether the money was re- ceived by virtue of any of the duties for which the prisoner was employed. There being a discussion about the payment of the note, it was handed over to the prisoner; and Whiles desired that his name should not be made use of in any legal proceedings upon it. The prisoner then indoi'sed the note with the name of CROWN GASES RESERVED. 297 Whiles. It would be too much to say that by so indors- 1860. ing it he was guilty of forgery, and I think we ought tongue's to treat the note as properly indorsed to the prisoner. ^"^^• The prisoner then employed an attorney to sue upon the note. My doubt is whether he was a clerk or servant when he was suing in his own name upon the note. Can we consider him as the mere machinery used by the club ? The transaction was one jper se, and not of every day occurrence, and the law of em- bezzlement is not to be extended to cases not cognate to. the general employment as clerk or servant. This circumstance of suing on the note made it desirable to throw that duty upon the prisoner, which he accepted. I also have some doubt whether the prisoner can be said to have received the money for the use of the club. Being the plaintiff in the suit, I should have thought that he received it for himself to hand over the balance after deducting the costs. Of the moral guilt of the prisoner I have no doubt. Bramwell B. — I think the conviction ought to be affirmed. If I could discover any finding of a definite set of duties to be performed by the secretary, of which the receipt of money was not one, I should share the doubt of my brother Crompton ; but I do not see here that the duties of secretary were inconsistent with that of receiving money. The secretary's duty is definitely specified. Many very miscellaneous duties may be implied from the nature of the office, and I think it was consistent with those duties for the prisoner, when directed by the club, to receive money. I think that he was employed by the club, and that that fact is concluded by the finding of the jury. I cannot think that he received the money for himself, or that the law proceedings make any difference. The bringing of the action was mere machinery to obtain the money, and the money, when received by the prisoner, was 298 1860, Tongue's Case. CROWN CASUS RESERVED. receivtid by him on account of the club. The prisoner sued that he might receive the monej for the club, his masters; and if he made himself liable for costs, of which I see no evidence, he had, as far as I can see, no right to incur them. He was not authorized to employ an attorney. 1 am of opinion that the pri- soner is shewn to be the servant of the club, for whom he received the money which he embezzled. Channell B. — The prisoner stood in the relation of clerk or secretary to the club. The office of secre- tary alone might not carry with it authority to receive money for the club ; but here it is found that the club directed the prisoner to sue upon the note or get a better security, and Spencer's Case (a) is an authority to shew that a duty to receive money in a single in- stance is sufficient. The suit was mere machinery for obtaining the money for the club. Hill J, concurred in affirming the conviction. Conviction affirmed. (a) Russ. &Ry. 299. I8G0. EEGINA V. HENRY SPAREOW. The indict- • The following case was reserved and stated by the ment in one Recorder of Birminqham. set of counts '^ charged the defendant with an assault upon the prosecutor, and having thereby unlawfully and maliciously inflicted grievous bodily harm upon him. There was also a count for a common assault. After evidence of grievous injuries, the Recorder told the jury that there was evidence of grievous bodily harm, and that the question of whether the defendant intended to inflict grievous bodily harm did not arise. The jury found a verdict of " guilty of an aggravated assault without premeditation ; it was done under the influence of passion." Hereupon the Recorder directed a verdict of guilty to be entered upon the counts charging an assault and unlawfully and maliciously inflicting grievous bodily harm. Held, that the Recorder rightly directed the verdict to be so entered. CROWN CASES RESERVED. 299 The defendant was tried at the Michaelmas Quarter 1860. Sessions of the Peace for the borough of Birmingham, spaebow's on an indictment, charging him in one set of counts ^"^^• with an assault upon one Samuel Griffiths, and with having thereby unlawfully and maliciously inflicted grievous bodily harm upon the said Samuel Griffiths. The indictment contained also a count for a common assault. It was proved in evidence before me that, on the 6th day of September, 1860, the prosecutor was stand- ing in a shop in High Street, Birmingham. The de- fendant passed and saw the prosecutor there. The defendant came and stood on the step of the shop for a few minutes till the prosecutor was leaving. The defendant then handed to the prosecutor a letter and asked him to read it. The prosecutor declined to do so and was going away. The defendant then struck the prosecutor with his fists two violent blows upon the mouth, another blow on the temple, and a fourth on the back of the ear. The prosecutor retreated back- wards, the defendant following him up and striking at him. The prosecutor then struck the defendant a blow over the hat with a stick. In retreating, the prosecutor's foot slipped against the kerb-stone, and he fell heavily upon his side. The defendant went to him, wrenched the stick from him and then went away. The prosecutor and the medical witnesses described the injuries which the prosecutor thereby sustained as follows : — Three of his front teeth and other teeth further up the jaw were loosened, his gums were lace- rated, and the mouth was swollen. The pain under which the prosecutor was suffering immediately after the accident was stated by the medical witness to be insufferable. One of the front teeth and the back teeth have since partially fastened, but the two front 300 CROWN CASES RESERVED. 1860. teeth have not done so, and the prosecutor must lose Spaeeow's the same. The mouth and jaw remained sore and ^'"^- stiff, so that the prosecutor could not eat solid food for more than a week. His nervous system received a shock, from which he suffered so, that the medical men at an interval of sixteen days advised his going away from business for a time ; and he received an injury on his side, from which he had felt, and at the time of the trial (9th October) was still feeling, pain. I told the jury, that the injuries inflicted upon the prosecutor, as described by the medical witnesses and the prosecutor himself, fell within the definition of "grievous bodily harm," and that, if they believed the witnesses, there was evidence to support the first count (or set of counts) in the indictment ; and, in reply to a question from the jury, I explained to them that the question of whether the defendant intended to inflict grievous bodily harm upon the prosecutor did not arise, in this case, but that the simple point for their consideration was, "did the defendant un- lawfully assault the prosecutor, and thereby inflict upon him grievous bodily harm ?" The jury returned the following verdict. " We find the defendant guilty of an aggravated assault, but without premeditation ; it was done under the influence of passion." It was contended on the part of the defendant that that finding amounted to a verdict of guilty upon the count for the common assault only. I held otherwise, and directed a verdict of guilty to be entered upon the first set of counts. And the question I submit for the consideration of the Court is. Was I right in so holding ? M. D. Hill, Recorder. This case was argued, on the 10th day of December, CROWN CASES RESERVED. 301 1860, before Erle C. J., Crompton J., Beamwell B., 1860. Channbll B. and Hill J. spaeeow's Ballantine Serjt., {Adams and O'Brien with him), ^'''^• appeared for the Crown ; and Huddleston Q. C, {A. Wills with him), for the prisoner. Huddleston Q. C, for the prisoner. — The oflFence charged in the first set of counts has not been found by the jury. Those counts are framedei ther upon 10 Geo. 4. c. 34. s. 29., or 14 & 15 Vict. c. 19. s. 4. Section 4 of 14 & 15 Vict. c. 19. enacts, that " Where- as it is expedient to make further provision for the punishment of aggravated assaults, be it enacted that if any person shall unlawfully and maliciously inflict upon any other person, either with or without any weapon or instrument, any grievous bodily harm, or unlawfully and maliciously cut, stab, or wound any other person, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable at the discretion of the Court to be im- prisoned, with or without hard labour, for any term not exceeding three years ; provided, however, that nothing herein contained shall be deemed or taken to repeal the provisions of the 29th section of the 10 Geo. 4. c. 34." The jury have not found the prisoner guilty of assaulting with intent to commit grievous bodily harm, but only of an aggravated assault. An aggravated assault does not necessarily mean one accompanied by grievous bodily harm. It would be an " aggravated assault " to strike a person and spit at him ; but such evidence as that would not support these counts. Hill J. — Why are we to suppose a finding contrary to the facts, when the verdict the jury have found is consistent with those facts? Crompton J.— We must construe the finding by reference to the subject matter of the charge, and what was left to the jury. VOL. I. Y Case. 302 CROWN CASES RESERVED. 1860. Huddleston Q. C.~The jury may, consistently with Sparrow's the facts, have intended not to find the prisoner guilty of intending bodily harm, but only of an aggra- vated assault. The Recorder did not tell the jury that bodily harm and assault were the same thing. The injuries suffered by the prosecutor might amount to grievous bodily harm, but the jury by their finding have negatived malice and premeditation ; and inten- tion is a necessary ingredient in the offence. It is the same with this offence as in arson, which in the absence of malicious intention cannot be established. Bramwell B. — The defendant strikes a blow which is calculated to cause grievous bodily harm, and which does cause it. Hill J. — You make no distinction between " pre- meditation " and " intention," between intentionally doing an unlawful act and causelessly doing it. Ckompton J. — Here I think we must take it that the prisoner intended to do the act. Huddleston Q. C. — The word " maliciously " is used in the statute, which means something more than intentionally. The counsel for the Crown were not called upon by the Court. Erle C. J. — We are of opinion that this conviction must be affirmed. Objection is taken to the language in which the jury returned their verdict ; but it is very rare that language can be met with which may not be perverted. We must construe the language used by the jury by looking at the circumstances under which the verdict was returned. The question before the jury was whether the prisoner committed a common assault, or an assault with intent to do grievous bodily harm. That question was discussed before them, and an explanation of what the statute meant given by the Recorder; and then the jury CROWN CASES RESERVED. 303 say, " We find the prisoner guilty of an aggravated 1860. assault." It is impossible, to my mind, for any one sparrow's to have entered anything on the record in respect to ^^'^■ that finding other than what has been entered. We are of a difi'erent opinion to Mr. Huddleston, and think this assault was intentional in the understanding of the law, though committed without premeditation and under the influence of passion. We therefore think the Recorder was authorized in directing the verdict to be entered as he has done. Conviction afiirmed. REGINA V. JAMES CEAWSHAW. 18G0. The following case was reserved and stated by the By the 1st Chairman of the Lancaster Quarter Sessions. lo & a Wm. At the General Quarter Session of the Peace for fotteries are the county of Lancaster, holden by adjournment at declared to Salford in the said county, on the 27th, 28th and 29th and public days of August, in the year of our Lord 1860, James ^^l^^^sea- Crawshaw was tried upon the following indictment. tion, which County of Lancaster, to wit.] The jurors for our operation on lady the Queen upon their oath present that James ^a^^renXred persons keep- ing lotteries liable to a penalty, to be sued for by information or action. Statute 42 Geo. 3. c. 119. contains similar enactments with regard to lotteries called " Little-goes." Held, on motion in arrest of judgment, on an indictment for keeping a lottery, con- taining counts framed upon the above mentioned statutes, that the counts were good and the offence indictable. The defendant kept an eating-house, and sold tickets for what was called " The Great EastemMoney Chih," in respect of which prizes were drawn, and the holders of thetickets, whose numbers were drawn for prizes, received the same ; and the defendant delivered out the prizes to such ticket holders. Held, that this evidence was sufficient to support a conviction against the defendant for keeping a lottery, but not sufficiient to support a conviction for keeping a, room for betting upon horse racing under the 16 & 17 Vict. c. 119. The jury returned a verdict of guilty, but recommended the defendant to mercy on the ground that perhaps he did not know that he was acting contrary to law. Held, that the conviction was not invalidated by this addition to the verdict. Y 2 304 CROWN CASES RESERVED. 1860. Crawshaw on the twenty-eighth day of July in the Crawshaw's year of our Lord one thousand eight hundred and ^^^^ sixty and on divers other days and times between that day and the taking of this inquisition at the borough of Ashton-under-Lyne in the county of Lancaster un- lawfully did set up keep and maintain a certain lottery to wit a Little-go, to the great damage and common nuisance of all the liege subjects of our said lady the Queen there inhabiting and residing and to the evil example of all others in the like case oflfending and against the form of the statutes in such case made and provided, and against the peace of our said lady the Queen her Crown and dignity. 2nd count. And the jurors aforesaid upon their oath aforesaid do further present that the said James Crawshaw on the said twenty-eighth day of July in the year of our Lord one thousand eight hundred and sixty and on divers other days and times between that day and the taking of this inquisition at the borough of Ashton-under-Lyne aforesaid unlawfully did set up conduct and maintain a certain lottery not authorized by Parliament in which said lottery prizes were awarded to the subscribers thereto for whom certain numbers were drawn, to the great damage and common nuisance of all the liege subjects of our lady the Queen there inhabiting and being and to the evil example of all others in like case offending end against the form of the statutes in such case made and pro- vided, and against the peace of our lady the Queen her Crown and dignity. 3rd count. And the jurors aforesaid upon their oath aforesaid do further present that the said James Crawshaw on the said twenty-eighth day of July in the year of our Lord one thousand eight hundred and sixty and on divers other days and times between that day and the taking of this inquisition at the borough of Ashton-iinder-Lyne aforesaid did unlawfully open CROWN CASES RESERVED. 305 keep and use a certain room in a certain house to wit ]SC0. a house in Old Street in. the said borough which said 5^::;;;^-3 room and house were then occupied by him the said ^»«'=- James Crawshaw for the purpose of money being re- ceived by the said James Crawshaw then being the occupier of such room as aforesaid as the considera- tion for securing the paying by some other persons to wit The Great Eastern Money Club of money on the event of a certain horse race, to the great damage and common nuisance of all the liege subjects of our lady the Queen therein inhabiting being residing and pass- ing to the evil example of all others in like case oflFending against the form of the statute in such case made and provided and against the peace of our lady the Queen her Crown and dignity. 4th count. And the jurors aforesaid upon their oath aforesaid do further present that the said James Crawshaw on the said twenty-eighth day of July in the year of our Lord one thousand eight hundred and sixty did unlawfully open keep and use a certain room in a certain house to wit a house in Old Street in the said borough Avhich said room and house were then occupied by him the said James Crawshaw for the purpose of money being received by the said James Crawshaw then being the occupier of such room as aforesaid as the consideration for an undertaking bj^ him the said James Crawshaw to pay money on the contingency of horse races, to the great damage and common nuisance of all the liege subjects of pur lady the Queen there inhabiting being residing and passing to the evil example of all others in like case offending against the form of the statute in such case made and provided, and against the peace of our lady the Queen her Crown and dignity. 5lh count. And the jurors aforesaid upon their oath aforesaid do further present that the said James £06 CROWN CASES RESERVED. 1860. Crawshaw on the said twenty-eighth day of July in Cbawshaw's the year of our Lord one thousand eight hundred and ^*^"^- sixty and on divers other days and times between that day and the taking of this inquisition did unlaw- fully set up keep maintain and conduct a lottery not authorized by Parliament, to the common nuisance of all the liege subjects of our lady the Queen and to the evil example of all others in like case offending con- trary to the form of the statute in that case made and provided, and against the peace of our said lady the Queen her Crown and dignity. The first witness who was called was John Preston ; his evidence was as follows : — I am a police constable of the borough of Ashton- under-Lyne ; I know the defendant ; he lives in Old Street^ Ashton-under-Lyne, and keeps an eating-house there. On Saturday, the 28th July last, I saw in his window a placard, a large one; after seeing it I went into his house, his wife was there, and the defendant was there in the shop-place also ; I said, " I want a horse ticket." I was not in uniform ; his wife gave me one out of a drawer : I paid sixpence for it. I asked her. When and where do they draw ? She said, '* It will be drawn on Monday night, where I do not know ; it is not drawn regularly at the same place." I then came away ; defendant was present all the time. On Monday afternoon, the 30th day of July, I went again, defendant and his wife were in, I bought another horse ticket; his, defendant's, wife served me from the same drawer: I paid sixpence for it. I asked when and where it would be drawn : defendant's wife said, " To-night, but I do not know where." I pur- chased the same day a list, this is it (the list is annexed, marked B.), I paid a halfpenny for it. I examined it, to look whether my ticket purchased on the first occasion was a prize. In consequence of what Case. CROWN CASES RESERVED. 307 I saw there I went the next morning, Tuesday the J 860. 31st, to the defendant's house and took with me the Ckawshaw's first ticket I had bought, I gave it to the defendant and said, "There is a prize for this," and gave it to him ; he went into the kitchen as if to look whether it was so ; returned and gave me four shillings and tenpence. I asked him why he did not give me the five shillings, he only laughed ; my other ticket was not a prize. I afterwards gave it to Chief Constable Dalgleish, this is it (this ticket is annexed, marked A.). Both the tickets were for the same drawing. Cross-examined.] — I went to the defendant's by direction of my Superintendent, I went alone. I can't say whether defendant knew me, I had then been a police constable at Ashton-under-Lyne but a few weeks ; the first time I went was at half-past 4 p.m. on the Saturday : I saw no one there the first time but the defendant and his wife. The next witness called was William Chadmck, whose evidence was as follows : — I am an Inspector of Police at Ashton-under-Lyne. On Thursday, the 2nd of August last, I apprehended the prisoner under a warrant. I went to his place and found there four placards stuck up in the window; (the four placards are annexed and marked respec- tively with the letters C, D., E., F.). I asked de- fendant to give me what tickets he had, and his wife handed me from a drawer in the counter these tickets now produced, (the tickets so taken from the drawer and produced.in Court purported to be tickets in two diflferent money clubs. White's South Union Weekly Money Club, and The Great Eastern Money Club) ; these tickets were not each on separate pieces of paper but a number printed in succession on the same slip of paper, but so as to be easily separated one from the other ; there were seventy-six in all produced, fifty- 308 CROWN CASES RESERVED. 1860. six in the first above mentioned, and twenty in the Crawshaw's ^^s* above mentioned club. A few tickets of each Case. are annexed, marked respectively with the letters H. and I. This, with some formal evidence, closed the case for the prosecution. The counsel for the defendant contended that the 1st, 2nd, and 5th counts of the indictment were bad in substance; that an indictment did not lie either under the statute 10 & 11 Wm. 3. c. 17., or under the statute 42 Geo. 3. c. 119. ; that in the case of both these statutes an offender could not be proceeded against under the 1st section, taken by itself, but must be proceeded against, if at all, under the 2nd or 3rd sections. They also contended that the 3rd and 4th counts of the indictment were bad in substance; that the statute 16 & 17 Vict. c. 119. did not apply at all to the case; that there was no proof of defendant's house being a betting-house within the meaning of that statute, and that there was no proof of the event or contingency here being such a one as is provided for in that statute. The Court overruled these objections. The counsel for the defence then submitted that there was no evidence for the jury in support of the 1st, 2nd or 5th counts. The Court decided that there was. The counsel for the defendant then addressed the jury, who found the defendant guilty on each count of the indictment, but recommended him to mercy, on the ground that, " perhaps, he did not know that he was acting contrary to law." The counsel for the defendant submitted that this was a verdict for the defendant. The Court ruled otherwise, but allowed the defendant to go out on bail CROWN CASES RESERVED. 309 until the next Hilary Sessions, and now submit the I860. case for the opinion of this Court, as to whether the Ckawshaw's objections taken by the counsel for the defendant, or ^""'' any, and which of them, are well founded and ought to prevail. Copy of Exhibit A. The Great Eastern Money Club. Four Thousand Prints at Sixpence each. The 23rd Ballot will take place on Monday, July 30th, 1860. No. 1787. ' 7. Copy of Exhibit B. Ashton-under-Lyne Great Eastern Money Club. 4000 Shares Issued. The 23rd Ballot published on Monday, the 30th of July, 1860. First Prize . . 33 . £10. Second, 2267 . £5. Third, 1830 . £2. 10*. Ten Shillings each. 2402 1367 1777 103 1000 1263 309 1934 631 255 1495 1946 3597 293 3888 126 3286 2784 644 533 180 198 1890 2876 976 2015 1670 1604 347 566 1121 702 1076 524 982 1165 3689 3259 2897 1955 441 3438 2654 2286 318 1764 3604 3630 559 530 1226 90 1729 2907 14 2913 1504 3442 2256 2994 2382 3804 2277 333 1140 185 65 699 1926 9 400 2422 383 1182 3673 777 1618 624 1135 1416 74 1734 3878 443 3273 370 2780 574 440 1046 1814 456 1430 602 2667 1220 470 3470 1403 2671 Five Shillings each. 1974 2638 1036 3852 678 1960 1050 2008 2889 3008 551 1615 1738 580 3027 439 1115 130 200 189 785 1270 1129 2788 3695 846 2797 462 159 265 2150 540 630 163 989 3431 3424 1950 1079 1985 3019 1510 460 1967 649 256 109 2296 1680 139 2660 590 2239 448 2680 3615 310 CROiyN CASES RESERVED. 1860. Crawshaw's Jbn /e bail lings e lach — ( zontmu ed. Case. 1538 1150 3305 172 3070 9094 1476 1298 492 300 389 447 1227 3682 1721 340 82 380 980 3130 1677 1635 508 2437 3000 710 2048 311 3844 809 69 1596 2625 5 1243 3792 839 3453 526 2923 1214 3036 1190 344 365 1821 2039 1661 59 80 3049 609 40 549 The next Ballot will take place on Monday, August 6th. Tickets may be had at the usual places. Copy of Exhibit C. The Great Eastern Weekly Ballot. 4000 Shares or more. The Meetings take place every Monday Evening. Shares. First Prize . . . £10 Second Do. . . . £ 5 Third Do. . . . £ 2. 10s. The Remainder divided into Shares of 10s. each. Shares M. each may be had here. Copy of Exhibit D. White's Race Club for the RadcliflPe Cup. 3000 Shares at Is. each. To be drawn on Saturday, August 11, 1860. First Prize . . . £10 Second Prize . . . £ h Third Prize . . . £2 Starters and Non-Starters ^61 each. Remainder in 10s. Prizes. Tickets, Is. each. — Sold here. CROWN CASES RESERVED. 311 Copy of Exhibit E. _i^^^l_. White's South Union Weekly Money Club. ^^^ZIT'' 2000, Subscribers at 6c?. each. First Prize . . . iglO Second Prize . . . £5 Third Prize . . . £2 Five at £l each. Twenty-one at 105. each. Sixty at 55. each. Distributed every Tuesday Evening at Eight o'Clock. Tickets 6c?. each. — Sold here. Copy of Exhibit F. North Western Weekly Money Club. Published every Wednesday Evening at Seven o'Clock. Tickets Sixpence each. — May be had here. 1908. Copy of one of the Exhibits H. W^hite's South Union Weekly Money Club. [lio. 48.] 2000 Subscribers at 6c?. each. First Prize . . . £10 Second Prize . . . £ ^ Third Prize . . . £ 2 Five at 561 each. Twenty-one at IO5. each. Sixty at 5s. each. To be Drawn Tuesday Evening, Aug. 7th, 1860, at Eight o'Clock, Copy of one of the Exhibits I. The Great Eastern Money Club. Four Thousand Prints at Sixpence each. The 24th Ballot will take place on Monday, August 6th, 1860. JVb. 48]. 1. 312 CROWN CASES KESERVED. 1860. This case was argued, on 10th November^ 1860, Crawshaw's before Erle C. J., Cuompton J., Bkamwell B., Case. Channell B. and Hill J. Dr. Wheeler, {Kay with him), app'feared for the pri- soner ; no counsel appeared for the Crown. Dr. Wlieeler, for the prisoner. — The counts in this indictment are framed upon the Lottery Acts, 10 & 1 1 Wm. 3. c. 17.5. 1., and 42 Geo.^.c. 119.5. 1., and the Act for suppressing betting houses, 16 & 17" Vict. c. 119. First, as to the counts framed upon the statutes as to lotteries, they are bad in law. There is no autho- rity to shew that anterior to the said statute of 10 & 11 Wm. 3. c."17. a lottery was a public nuisance at com- mon law; and upon the construction of that statute there is nothing to shew that the keeping a lottery is indictable. The first section of the statute, after reciting that " several evil disposed persons for divers years last past have set up many mischievous and unlawful games, called lotteries, not only in the cities of London and Westminster, but in most of the eminent towns and places in England and in the dominion of Wales, and have thereby most unjustly and fraudu- lently got to themselves great sums of money from the children and servants of several gentlemen, traders and merchants, to the utter ruin and impoverishment of many families and to the reproach of the English laws and government, by colour of several patents or grants under the Great Seal of England for the said lotteries or some of them, which said grants or patents are against the common good, trade, welfare and peace of his Majesty's kingdom;" for remedy thereof it is enacted, adjudged and declared, that all such lotteries and all other lotteries are common and public nuisances, and that all grants, patents and licences for such lotteries, or any other lotteries, are I860. Ceawshaw's CROWN CASES RESERVED. void, and against law. Section 2 enacts that, from and after the 29th oi December, 1699, no person shall ^__..^ exercise, keep open, shew or expose to be played at Case, any such lottery, and that offenders shall be punishable by a heavy penalty. The same statute therefore which by the 1st section creates the offence, by the second provides the punishment, and the penalty therein provided ought to have been enforced instead of pro- ceedings being taken by indictment, a proceeding never contemplated by the Legislature. If the offence was indictable by virtue of the 1st section, it was useless to inflict a penalty by the second. This is the more obvious from the restriction introduced into the 2d section with respect to the time when that section is to have effect. The same argument applies to the counts framed upon 42 Xxeo. 3. c. 119. That statute enacts, by the 1st section, that from- and after the passing of that Act lotteries called " Little-goes" shall be deemed, and they are thereby declared to be, com- mon and public nuisances and against law; and the 2d section enacts that from the 1st July, 1802, any person keeping offices for such games shall forfeit a heavy penalty and be deemed a rogue and vagabond, and punished accordingly. The first section of each statute was intended as a warning to the public of the alteration in the law ; the second to provide for the punishment of the offences created for the first time. Ceompton J. — How does this point arise? Is this a proceeding in arrest of judgment? Eele C. J. — You ask for an arrest of judgment. We will treat this application as a motion in arrest of judgment. Dr. Wheeler.— In Bex v. William Gregory/ (a) an Act of Parliament prohibited the erection or con- (a) 5 B. & Ad. 555. Case. 314 CROWN CASES RESERVED. 1860. tinuance of any building within ten feet of the road; Cbawshaw's ^^^ it further enacted that if any such building should be erected or continued contrary to the Act it should be deemed a common nuisance. By another clause of the Act two magistrates were empowered to convict the proprietor and occupier of such building and to make an order for the removal thereof; and it was held that, notwithstanding the latter clause, the party who erected or continued a building contrary to the Act might be indicted for a nuisance. In that case Bex V. Harris (a), Mr. Serjeant Williams's note to Rex V. Dickenson (b), and Rex v. Wright (c) were cited ; but it never could have been intended by the Legislature that a man should be punishecJ by the infliction of a heavy penalty and then indicted, which might well be if the construction contended for by the Crown is upheld by this Court.- The 1st section of 10 & 11 Wm. 3. c. 1 7. contains a prohibition, and under ordinary cir- cumstances an indictment would no doubt lie for its infringement, yet the remedy being a heavy penalty that is the proper course of proceeding and the course intended by the Legislature. The first section came into operation at an earlier date than the second one ; and, therefore, if the first section gave a separate and independent remedy, the result would be that under the first section an offender was liable to an indict- ment and a severer penalty than he would be under the second section. . These are not cumulative provisions, and the statute which creates the offence also provides the remedy. There would have been no object in the second section if a remedy by indictment had been provided by the first. Supposing an indictment to lie, there was no evidence for the jury on which they were justified in finding the defendant guilty. There ought (a) 4 T. R. 202. (V) 1 Saund. 135 6. (c) 1 Burr. 544. CROWN CASES RESERVED. 315 to be evidence of a lottery or a determination by lot I860, brought home to the defendant. There was no evi- Ceawshaw's dence that the place was a place, or the game a game, *^^'^- within the mischief of the statute, or to connect the defendant with the distribution of prizes. An agency should have been proved against the defendant. The distribution may have been by some other manner than by lot. There was no evidence to support the third and fourth counts, which were framed upon the statute 16 & 17 Vict. c. 119., "An Act for the suppres- sion of betting-houses." There was no evidence of any horse race having taken place, or that this was a betting-house within the meaning of the statute. Lastly, the verdict ought to stand upon the finding of the jury. Before the statute 10 & 11 Wm. 3. c. 17. lotteries were common all over England. The reason for postponing the operation of section 2 was probably that, the first section having created the prohibition, it was desirable to grant time, by way of warning to the public, before making the penalty attach. The jury, on returning their verdict, recom- mended the defendant to mercy, upon the ground that perhaps he did not know he was acting contrary to law. Erle C. J. — We are of opinion that the evidence bearing on the charge contained in the counts relating to the horse racing is not sufficient to support those counts. As to the counts relating to the lotteries, the evidence was sufficient. A ticket was purchased at the defendant's house with the expectation of a prize, and the defendant was concerned in delivering the ticket and the prize to the purchaser. The jury were therefore justified in inferring that the defendant kept a lottery, and the objection that there was no evidence to support those counts fails. Then the conviction is Case. 316 CKOWN CASES RESERVED. I860. valid notwithstanding the verdict of the jury. By CiiAwsHAw's recommending the defendant to mercy, they did that which it was within their province to do; but the defendant's ignorance of the statute is no excuse for him. The great point made in the powerful argument of Dr. Wheeler was in arrest of judgment. The defendant was indicted for a misdemeanor under the statute of Wm. 3., which by the first section declares that lotteries are public nuisances ; and by the second enacts that after the day therein named any person keeping open a lottery shall be subject to a penalty. The third section, in a similar way, provides that persons playing at such lotteries shall be subject to a penalty. The second and third sections came into operation at a different time to the first, which, whatever may be its effect, came into operation upon the passing of the statute, and it was therefore argued that the proper remedy was under the second section. But we find that the principle has prevailed, and been acted on without qualification, that when the Legislature de- clares an act to be a public nuisance the person doing the act is indictable, Rex v. Gregory (a) ; and we take that principle to be an answer to Dr. Wheeler's argument. We therefore hold that the counts framed upon the Lottery Act are not bad, and that the de- claration in the statute rendered the defendant in- dictable. Conviction affirmed. (a) 5 B. & Ad. 5.'(5. AN INDEX TO THE PRINCIPAL MATTERS. ABDUCTION OF A GIEL UNDEE, SIXTEEN TEAE8 OE AGE. The defendant was convicted on an indictment, framed upon 9 Oeo. 4. c. 31. s. 20., for taking an un- married girl under sixteen out of the possession of her father, and against his will. It was proved that the prisoner, (who had pre- viously stayed out with the girl for a night), having met her by arrangement, stayed with her away from her father's house for three days, sleeping with her at night ; that he took her away without her father's consent and against his will, in order to gratify his passions and then allow her to return home ; but not with a view of keeping her away from her home permanently. Held, that the evidence justified the conviction. Begma v. Tim- mins, 276 ACCESSOET. See Pbincipal (2). TOL. I- ADMIEALTT. See JrEiSDiOTiON. ADULTEEEE. See Labcent (5), (6). AGENT. Ealse pretence by innocent agent, see iRegina v. Butclier, 6 AMENDMENT, 1. The Court will not send a case back for amendment on the mere application of counsel ; but wOl do so if, on the argument, it ap- pears that it is imperfectly stated. Regina v. Hilton, 20 2. An indictment for perjury al- leged that the prisoner, an insol- vent debtor, after the passing and coming into operation of certain statutes, to wit on the 30th of May, 1859, presented his petition. The time when two of the sta. 318 INDEX TO THE PEINCIPAL MATTERS. tutes ■vrere passed was inaccurately described, and the Judge at the trial amended the indictment by striking out the words stating such time. Held, that it was competent to the Judge to make such amendment. Megina v. Westley, 193 AESON. It is a felony, under 14 S^ 15 Vict. c. 19. s. 8., coupled with 7 Wm. 4^1 Viet. e. 89. s. 3., for a man to set fire to his own goods in his own house with in- tent, by burning the goods, to defraud an insurance Company. "Where, therefore, an indictment charged that A. L. "feloniously, &c., set fire to certain goods and chattels of him the said A. L., to wit, &c., then being in a certain building, to wit a certain house situate, &c., and then in the pos- session and occupation of the said A. L., with intent in so doing to defraud the said insurance Company known by the name of, &c., it Wfis held sufiicient. Be- gina v. Lyons, 38 ASSAULT. 1. Upon a count for assaulting, beat- ing, wounding, and occasioning actual bodily harm, against the statute, Ac, a prisoner may be con- victed of a common assault. Meg. V. Oliver, 287 2. The indictment in one set of counts charged the defendant with an assault upon the prose- cutor, and having thereby unlaw- fully and maliciously infiicted grievous bodily harm upon him. There was also a count for a com- mon assault. After evidence of grievous in- juries, the Eecorder told the jury that there was evidence of grievous bodily harm, and that the question of whether the defendant intended to inflict grievous bodily harm did not arise. The jury found a verdict of " Guilty of an aggravated assault, without premeditation; it was done under the influence of passion." Hereupon the Eecorder directed a verdict of guilty to be entered upon the counts charging an as- sault and unlawfully and mali- ciously inflicting grievous bodily harm. Seld, that the Eecorder rightly directed the verdict to be so en- tered. Heg. V. Sparrow, 298 BANK-NOTE. See Eaise Peetences (3). BANKEUPT. A bankrupt was convicted on an indictment framed upon sect. 252 of the 12 & 13 Vict. c. 106, (the Bankrupt Law Consolidation Act, 1849), for making a false and fraudulent entry in a book of ac- count, with intent to defraud his creditors. The jury'found that J the entry in question was made by the bank- rupt with intent to deceive his creditors as to the state of his ac- counts, and to prevent the exami- nation and investigation of them in the due course of bankruptcy, and to save him from having to account for the deficiency appear- ing in the genuine account; but they found that it was not done to defraud the creditors of any money or property, or to conceal any money or property, or to pre- vent them from recovering or re- ceiving any'part of his estate, or to conceal any misappropriation or preference by him. INDEX TO THE PEINCIPAL MATTEE8. 319 Meld, that the conviction was wrong, as the banirupt was not found to have had any intent to defraud his creditors within the meaning of the statute. Reg. v. Ingham, 181 See Embezzlement (1). BASTAEDT. See Pehjtjbt (1), (3). BETTING-HOUSES. See LoTTEET. BUILDING. See Laecent (2). CASES CONSIDEEED AND OBSEEVED UPON. Eeg. v. Abbott (IDen. C.C. 273). Beg. v. Goss, 208 Same Case, Beg. v. Magg, 214 Eeg. v. BortTON (1 Den. C. C. 508). Beg. Y. Morrison, 158 V. Betan (Dears. & Bell, C. C. 265). Beg.Y.Bagg, 214 Eex v. Cain (2 Moo. C. C. 204). Beg. V. Loose, 259 Eeg. v. CAMPLnr(lDen.C. C. 89). Beg. V. Fletcher, 63 V. Ceoss (Dears. & BeU C.C. 68). Beg. v. Skeen, 97 V. Dixon (Dears. C. C. 580). Beg, v. Christopher, 27 — — V. DxrwDAS (6 Cox Crim. Cas. 380). Beg. v. Bagg, 214 V. Etans (Dears. & BellC.C. 236). Beg. v. Bichmond, 142 Eex v. Geegoet (5 B. & Ad. 565). Beg. V. Orawshaw, 303 , V. Mead (2 B. & C. 605). Jieg. V. Hind, 253 z 2 Eeg. v. Peekins (2 Den. C. C. 459). Beg. v. Hilton, ,20 V. Peeston (2 Den. C. C. 353). Beg. v. Christopher, 27 V. EoEBircK (Dears. & Bell, C. C. 24). Beg. v. Bagg^ 214 V. Etan (2 Cox. Crim. Cas. 116). Beg, v. Fletcher^ 63 V. Rattlbii (Dears. & Bell, C.C. 525). Beg. Y. Lesley, 220 V. Scotton (13 L. J. (M. C.) 58). Reg. v. Berry, 46 V. Thueboen (1 Den. C. C. 387). Beg. v. Christopher, 27 V. Watts (Dears. C. C. 326). Beg. V. Morrison, 158 Eex v. Westbeee (Strange, 1136). Beg. Y. Morrison, 158 V. "WllTSHIEE, JJ. (12 Ad. & El. 793). Beg. v. Berry, 46 CASES EESEEVED. See Amendment (1). CHEATING AT PLAT. See CoNSPiEACT. CONSPIEACT. The three prisoners being in a public-house with the prosecutor, one of them, in concert with the other two, placed a pen-cAse on the table, and left the room. Whilst he was absent, one of the two re- maining took thepen out of the case, and put a pin in its place, and the two prisoners induced the prosecu- tor to bet with the other prisoner whenhereturnedinto theroomthat there was no pen in the case, and the prosecutor staked fifty shil- lings. On the pencil-case being turned up, another pen fell into the 320 INDEX TO THE PRINCIPAL MATTERS. prosecutor's hand, and the pri- soners took the money. Held, that the evidence sup- ported a conviction upon a count charging the three prisoners with conspiring, by divers false pretences and fraudulent devices, to cheat the prosecutor of his money, although it appeared that he had the inten- tion of cheating one of the pri- soners if he could. Senible, that the facts did not amount- to the offence of cheating at play, within s. 17 of 8 & 9 Vict. c. 109. Beg. v. Hudson, 263 See Indictment. COIJNTT COURT. The prisoner was convicted on an indictment, under section 57 of 9 Sf lOVict. c. 95., for acting and pro- fessing to act under a false colour and pretence of the process of the County Court of S. It appeared that the prisoner, being a creditor of i?., obtained a blank form for plaintiff's instructions for sum- mons, and filled it up with par- ticulars of the names and ad- dresses of himself and S. as plaintiff and defendant, and of the nature and amount of the claim. He, without authority, signed the form with the name of the Registrar of the Court, and indorsed a notice, (which he also without authority signed with such name), that unless B. paid the amount by a certain day an execution warrant would issue. This form so filled up and signed he sent by post to B. with intent thereby to obtain payment of his debt. Held, (BbamwelIi B. dubi- tante), that these facts consti- tuted an acting and professing to act under the false colour or pre- tence of the process of the County Court, and that the conviction was right. Meqina v. Michmond, ^ ^ 142 DISCLOSURE. See Embezzlement (1). DOGS. Dogs, not being the subject of lar- ceny, are not "chattels" within the meaning of 7 ^ 8 Geo. 4. c. 29. s. 53. Begina v. Bobin- son, 34 DYING DECLARATION. Dying declarations are only ad- missible in evidence, where the death of the deceased is the sub- ject of the charge, and the cir- cumstances of the death the sub- ject of the dying declaration. Therefore, on an indictment for feloniously using certain instru- ments upon the person of a woman with intent to procure a miscarriage, the dying declaration of the woman was held inadmissi- ble. Begina v. Hind, 253 EMBEZZLEMENT. 1. The defendants were indicted for having fraudulently transferred for their own benefit a bill of lading intrusted to them aa brokers. The indictment was framed on section 6 of 5 ^ 6 Tict. c. 39., which contains a proviso that no agent shall be liable to be con- victed by any evidence in respect of any act done by him, if he shall, at any time previous to his being indicted for such offence, have disclosed the same in any examination before any Commis- sioner of bankruptcy. The defendants were charged with the offence in question be- fore a magistrate and committed INDEX TO THE PEINCIPAL MATTEES. 321 for trial, the depositions which were then taken containing ample evidence to support the charge. The defendants had previously been adjudged bankrupts; and subsequently to their committal as aforesaid, but before indict- ment, they were taken by their creditors before a Commissioner in bankruptcy, and then made a statement which was substantially an admission of the same facts as were stated by the witnesses in the depositions. On the trial, the examinations of the defendants in bankruptcy were offered by them as a de- fence, it being contended that, hav- ing disclosed the act before a Commissioner previous to indict- ment, they were protected by the proviso, and were not liable to be convicted. Held, that the evidence of a disclosure was admissible under the plea of not guilty. Held, by the majority of the Court, (LoED Campbell C. J., Pollock C. B., "Wi9htman J., Mabtin B., Willes J , Beam- well B., AVatsox B., Chahkell B. and Hill J.), that, as the prisoners only stated before the Commissioner that which had been previously known and pre- viously proved by evidence before the magistrate, they had not made a disclosure within the meaning of the proviso, and consequently were not entitled to its pro- tection. Held, by the minority of the Court, (CocEJSiJEN- C. J., Wil- liams J., Ceompton J., Ceow- DER J. and Btlbs J.), that, as the statement was made before indictment on a compulsory ex- amination before a Commissioner in bankruptcy instituted hondfide by the creditors, it was a disclo- sure within the meaning of the proviso, to the protection of which the defendants were there- fore entitled. Begina v. Sheen, 97 2. The prisoner was convicted upon an indictment for embezzlement. It was the duty of the prisoner, who was the assistant overseer of a township, to collect the rates ; and the course was upon receipt to pay them into a bank to the account of the overseers, and then to obtain the overseers' receipts for the sums so paid. It was his duty also to enter the rates, when received, in a book, and at the audit he charged himself by the entries in his book, and dis- charged himself by the receipts of the overseers. Having misappropriated certain monies which he duly entered in his book when received, he fraudu- lently obtained from the overseers receipts for the several sums stated in the indictment by falsely telling them that he had paid the money into the bank. These re- ceipts he produced to the auditor, and BO deceived him as to his hav- ing handed over the monies. Held, that the prisoner was rightly convicted, and that the fact of his entering the sums, when received, in his book, did not alter the character of his offence. Megina v. Quelder, 284 3. The defendant, who was convicted of embezzlement, was secretary of a money club. His duties were cognate to that of receiving money, although the receipt of money was not expressly named as one of them in the rules, which were in writing. The defendant was di- rected by the club to sue upon a joint promissory note their pro- perty or get better security, and the note was handed to him by the treasurer, not a member of the club, who desired that his name should not be used in legal 322 INDEX TO THE PEINCIPAL MATTEES. proceedings. The note was pay- able to the treasurer's order, and the defendant indorsed the trea- surer's name on the note, and employed an attorney, who issued a writ at the suit of the defendant. In consequence of the action money was paid to the defendant by one of the makers of the note, the receipt of which the defendant denied, and fraudulently withheld the money from the club, and appropriated it. Held, (Ceompton J. dubi- tante), that the defendant was rightly convicted. Begina v. Tongue, 289 See Laecent (3). EVIDENCE. The evidence of a disclosure, under 5 Sf G Vict. c. 39., is ad- missible under the plea of not guilty. Begina v. Slceen, 97 See Peejttet (1), (3). EACTOES. See Embezzlement (1). EALSE IMPEISONMENT. The defendant was convicted on an indictment charging him with assaulting the prosecutors on the high seas, and falsely imprisoning and detaining them. The prose- cutors were Chilian subjects, and had been ordered by the govern- ment of Chili to be banished from that country to England. The defendant, being the master of an English merchant vessel lying in the territorial waters of Cthili near Valparaiso, contracted with the Chilian government to take the prosecutors from Valpa- raiso to Liverpool ; and they were accordingly brought on board the defendant's vessel by the officers of the government, and were car- ried by the defendant to Liverpool . under his contract. Held, that, although the con- viction could not be supported for the assault and imprisonment in the Chilian waters, it must be sus- tained for that which was done out of the Chilian territory ; and that, although the defendant was justified in receiving the prosecu- tors on board his vessel in Chili, ■yetthat justification ceased when he passed the line of Chilian jurisdiction ; and the detention of the prisoners and conveying them to Liverpool was a wrong inten- tionally planned and executed in pursuance of the contract, amount- ing to a false imprisonment and triable by English law. Begina v. Lesley, 220 EALSE PEETENCES. 1. The defendant was convicted of obtaining money by false pre- tences. The first count of the indictment alleged that the defen- dant pretended to T. H. that he (the defendant) was the agent of J. jB., and was sent to the pay- table of a certain company, to re- ceive certain monies then pay able by the company to the said J. £., and that he was authorized to receive such monies for and on behalf of the said J. JB., by means of which said false pretences the defendant obtained from T. M. certain monies of the said company. The second count alleged that the defendant pretended to A. tbat he (the defendant) was authorized to send him, (the said A.), to the said pay-table, to get the pay- table money of the said J. B., by means of which said false pre- tence the defendant obtained from INDEX TO THE PEINCIPAL MATTEES. 323 the said T. m, and from the said -4., certain monies of the monies of the said company. The fourth count alleged that the defendant pretended to the said A. that he (the defendant) was the agent of J. B., and that he (the defendant) was sent by the said J. B. to the said pay- tableto receive certain monies then payable by the said company to the said J. B., and that he (the defen- dant) was authoriaed to receive such monies for and on behalf of the said J. B., by means of which said false pretences the defendant obtained from A. certain monies of the monies of A. On the trial it was proved that the defendant promised A. a penny to go to the pay-table and fetch J. B.'s money ; that A. accord- ingly went to the pay-table where the said T. S. was, and asked for, andreceivedfrom^.JS'.jJ'.^.V pay- table money, which he afterwards gave to the defendant, because he had promised him a penny ; and it was also proved that T..H. would not have parted with the money if A. had not said he was sent for it, and if he had not be- lieved that A. was authorized by /. B. to receive it. Seld:—!. That, A. being the innocent agent of the defendant, this amounted to a false pre- tence by the defendant himself, that A. was authorized to receive J. B.'s pay-table money ; but 2. That the conviction could not \he sustained, because there was no count in the indictment charging that as the false pretence oti which the money was obtained. Eeg. v. Butcher, 6 2. Dogs, not being the subject of larceny, are not "chattels" within the meaning of 7 & 8 Oeo. 4s. c. 29. «. 53. Beg. v. Bo- iinson, 84 3. The prisoner was convicted upon an indictment for obtaining money by false pretences, the false pre- tence alleged being, that a certain piece of paper was a bank note then current, good and of the value of 51. ; whereas it was not a bank- note then current or good or of the value oi5l., or of any value what- ever. It was proved that the note was the note of a private bank which was no longer iu existence, and which had paid a dividend of 2s. M. in the pound ; and that a neighbouring banker refused to change it. The chairman told the jury that there was some evidence from which they might infer that the note was not of any value. Jleld, that a person passing such a note as a good note, and aa of the value of 51., knowing th^t the bank was insolvent, and had stopped payment, and could not pay the note in full, would be guilty of obtaining money by false pretences : but that as the chair- man hadtoldthe jury that there was evidence from which they might infer that the note was of no value, and as there was in fact no evi- dence from which it could be so inferred, the convictipil must be quashed. Beg. v. Hvans, 187 4. The prisoner was convicted upon an indictment for obtaining money by false pretences. It appeared that the prosecutor bought of the prisoner, and paid him for, eight cheeses, upon a false representation by him that cer- tain " tasters" which he pro- duced had been extracted from, and were part of, the cheeses which he offered for sale, whereas they had not been so extracted, but 324 INDEX TO THE PEINCIPAL MATTEES. were in fact part of anotter and better cheese. Meld, that the false representa- tion made bj the prisoner was an indictable false pretence, and that the conviction was right. Heg. v. Qoss, 208 5. The prisoner was convicted on an indictment for obtaining money by false pretences. It appeared that the prosecutor bought of the prisoner, and paid him for, a quan- tity of coal upon a false represen- tation by him that there were 14 cwt.,whereasin fact there wereonly 8 cwt., but so packed in the cart in which they were as to have the appearance of a larger quantity. Held, that the false representa- tion as to the quantity of the coal was an indictable false pretence, and that the conviction was right. Eeg. v, Ragg, 214 6. The prisoner was charged with obtaining moneys from H. by false pretences. He was em- ployed by his master to take orders for goods, but wasnot autho- rized to receive the money. Eleven days after he was so employed, he obtained the money mentioned in the indictment from H., by falsely representing that he was autho- rized by his employer to receive it. For the purpose of proving the intent of the prisoner, evidence was admitted of his having, on a day not specified but within a week from the time when the moneys were obtained from //., obtaiaed another sum of money from a,nother person by a similar false pretence, such obtaining not being charged in the indict- ment. Held, that the evidence was not admissible; Beg^ v. Holt, 280 7i The indictment charged that the prisoner obtained twenty yards of carpet, by falsely pretending that a certain person, who lived in a large house down the street, andhad had a daughter married sometime back, had been at him about some car- pet, and had asked him to procure a piece of carpet ; whereas no such person had been at the prisoner about any carpet, nor had any such person asked the prisoner to pro- cure any piece of carpet. The evidence was, that the pri- soner obtained twenty yards of carpet by stating to the prosecu- tor, who was a shopkeeper in the village of S., that he wanted some carpeting for a family living in a large house in the village, who had had a daughter lately married ; that the prisoner afterwards sold the carpeting so obtained to two different persons ; and a lady was called, who lived in the village, whose daughter was married about a year previously, and who stated that she had not sent the prisoner to the prosecutor's shop for the carpet. Held, that there was a sufficient false pretence alleged and proved, and that it was sufficiently nega- tived by the evidence. Heg. v. 282 See Ihdictmettt. EIXTTJEES. See Laeceiit (2). EKIENDLT SOCIETY. See Laecenx (8). HIGH SEAS. See Ealse Impeisonment, INDEX TO THE PEINCIPAL MATTEES. 325 HIGHWAY. Upon an indictment for the non- repair of a public carriage road, it appeared that 'the road was an ancient highway ; that eighteen years ago the indicted parish, wherein the road was situate, was inclosed under 6 & 7 Wm. 4. c. 115., which incorporates the General Inclosure Act, 41 Geo. 3. o. 109. ; and the road was described in the award. Before the award the Com- missioners made an alteration in the original road by straightening and widening it, but the whole of the original road was comprehended in the existing road as set out in the award. Both before and since the award the parish had repaired it, but no steps had been taken by the Commissioners for putting the road into complete repair ; there never was any declaration by jus- tices that it had been fuUy com- pleted and repaired, andno proceed- ings had been taken under 5 & 6 Wm. 4. e. 50. s. 23. It passed through allotable land on both sides, except that a small portion on one side was an old inclosure. Held, that the parish was not liable to repair the road. Megina V. East Sagbourne, 135 HUSBAND AND WIFE. The prisoner was charged in the first count of an iudictment with ob- taining money from the trustees of a savings bank, by falsely pre- tending that a document presented to the bank by the wife of D. had been filled up" by the authority of D.; and in the third count of the same indictment, the prisoner was charged with conspiring with the said wife of D. to cheat the bank. The evidence of D. was received, in proof of the first count, to shew that he had given no authority to fill up the document or to with- draw the deposit. Held, that the evidence of D. was properly received in proof of the first count, his wife not being indicted, although she was alleged to be one of the parties to the conspiracy charged in the third count, itegina v. Salliday, 257 See Lakcbnt (5), (6). EEOBITINa (4). IGNOEANCE OE LAW. The defendant was indicted, under 10 & 11 Wm. 3. c. 17., and 42 Geo. 3. c. 119., for keeping a lot- tery. The jury returned a verdict of guilty, but recommended him to mercy on the ground that per- haps he did not know that he was acting contrary to law. Held, that the conviction was not invalidated by the addition to the verdict. Itegina v. GrawsTiaw, 303 INDICTMENT. The prisoner was charged, in the first count of an iudictment, with ob- taining money from the trustees of a savings bank, by falsely pre- tending that a document presented to the bank by the wife of D. had been filled up by the authority of D. ; and, in the third count of the indictment, the prisoner was charged with conspiring with the said wife of J), to cheat the bank. The jury found the prisoner guilty on the first count, and not guilty on the third count. Held, that finding the prisoner guilty on the first count was con- sistent with finding him not guilty on the third count. Megina v. Hal- liday, 257 See Aesoit. Ealse Peexences (1). Laecent (2), (4), (7). LOTTEET. Peejuet (2), (4). eeceitin& (2). 326 INDEX TO THE PEINGIPAL MATTEES. INTENT. 1. To defraud by bankrupt by mak- ing false entries in book of ac- count, 181 2. To inflict grievous bodily harm, 298 JUEISDICTION. Three prisoners were indicted for feloniously cutting and wounding U.S. with intent to do him griev- ous bodily harm. The venue of the indictment was Glamorganshire, and it appeared that the offence was committed on board an Ameri- can ship in the Penarth Boads in the Sristol Channel, three-quar- ters of a mile from the coast of Glamorga/nshire, at a spot never left dry by the tide, bvit within a quarter of a mile from the land which is left dry by the tide. The place in question was be- tween Olamorganshire and the J'Za^ Holms, an island treated as part of the county of Glamorgan, the ship being at the time two miles from the island on the inside. It was about ten miles from the opposite shore of Somersetshire, and ninety miles from the roads to the mouth of the Channel. Held, that the part of the sea where the vessel was at the time when the offefice was committed was within the body of the county of Glamorgan. JRegina v. Cunning- ham, 72 See Peejttex (1), (3), (4). LAECENT. 1. Where a person finds lost property and appropriates it to his own use, it is necessary, in order to convict him of larceny, that the jury should find that at the time he toot possession of the property he knew or had the means of know- ing who the owner was, and took possession of it with the felonious intent to appropriate it to his own use. Therefore where on a trial for larceny, under such circum- stances, the Chairman told the jury that a felonious intent was a necessary ingredient in every lar- ceny, but that such intention was to be judged of by acts subse- quent as well as immediate, and that if they thought the conver- sion of the property by the pri- soner to his own use without inquiry was proved, and that though there was no name or mark upon it, there was such peculiarity aTjout it as to warrant inquiry, and above all if they were satisfied that the prisoner subse- quently heard that the property was lost and cried by the public crier, and then did not take mea- sures to make restitution, they might infer felonious intention ; it was held that such direction was defective, inasmuch as it was con- sistent therewith that the jury should find the prisoner guilty, although they were of opinion that the felonious intent did not exist at the time of finding. Begina v. Christopher, 27 2. A count in an indictment framed upon section 4i of 7 & 8 Geo. 4. c. 29., charged the prisoners with stealing lead " then being fixed to a certain wharf," not alleging that the wharf was a " building." It was proved that the lead formed the gutters of two sheds on the prosecutor's wharf, which sheds were constructed of brick, timber and tiles. Held, that it was sufficiently alleged and proved that the pri- soners had stolen lead " fixed to a building." Begina v. Bice, 87 3. The prisoner was a miller's fore- man. It was his duty to sell flour to customers, to enter the sales in a double check book, to INDEX TO THE PEINCIPAL MATTEES. 327 give the customers a copy of the eutry, and retain the counterfoil for his master's inspection, and to enter in a cash book his re- ceipts and payments immediately upon their being made. Once a week there was a settlement of these books and accounts with his master. Upon a sale of some flour he received the money from the buyer, and gave her a receipt with a check taken from a book belong- ing to his master, but not from the regular book ; and having fraudidently omitted to make any entry of the transaction, appro- priated the money which he so received. Held, that the prisoner could not be convicted of a larceny of the flour. Megina y. Setts, 90 4. The prisoner was convicted of stealing iron, the property of the proprietors of the G. O. if. Com- pany. It appeared that while the canal was in process of being cleaned, the prisoner, (not being in the employ of the Company, but a stranger), took away from the bed of the canal the iron in question. It also appeared that iron found by the Company dur- ing such cleansing would, if the owner could be found, be returned to him, but otherwise would be kept by the Company. Held, that the Company had suflicient property in and posses- sion of the iron to maintain an indictment for larceny, and that the conviction was right. Begina v. Bowe, ' 93 5. The prisoner was convicted of stealing articles of furniture the property of B, IE., of the value of 51. and more, in his dwelling house at Manchester. It appeared that the prisoner was a lodger in the house of the prosecutor at that the prisoner procured a horse and cart, and he and the prosecutor's wife put the articles in question in the cart, and had them conveyed to the railway station, from whence the prisoner, the prosecutor's wife and her three children left by train for Leeds. A fortnight afterwards the pri- soner and the prosecutor's wife were found living together in Leeds in a house which she had taken in her own name, and in the house were all the articles so taken from the prosecutor's house in Manchester. On the trial the prosecutor's wife was called as a witness on behalf of the prisoner, and swore that they had not gone away for the purpose of carrying on an adulterous intercourse, and had never committed adultery together. The Judge directed the jury, that if they were satisfied that, when the prisoner and the prosecutor's wife so took the pro- perty, they went away together for the purpose of having adul- terous intercourse, and had after- wards efiected that criminal pur- pose, they ought to find the prisoner guilty ; but that, if they believed the evidence of the wife, the prisoner was entitled to an acquittal. Seld, that the direction was right. Begina v. Berrif, 95 6, A. and B. took the goods of a husband without his consent, and with the intent to deprive him ab- solutely of his property in them ; but the taking was in the pre- sence and with the consent and privity of the wife. A. and B. were uncle and cousin of the wife, who at the time of the taking intended to leave, and afterwards left, her husband's house without the intention of re- turning, and went with one of the prisoners to the house of the 228 INDEX TO THE PEINCIPAL MATTE ES. other ; but there was no evidence that she had committed, or in- tended to commit, adultery with either of them. It was not left to the jury to say which was the principal in taking the goods, the wife, or A. and jB., or either of them. Held, that it must be considered that the wife took the goods, and A. and £. assisted, and that they were not guilty of larceny. Se- gina v. Avery, 150 7. A pawnbroker's duplicate is the subject of larceny. It is " a war- rant for the delivery of goods" vrithin the meaning of section 5 of 7 4^ 8 Geo. 4. c. 29. ; and is well described in an indictment, either as " a warrant for the de- livery of goods," " a pawnbroker's ticket," or as " a piece of paper." Regina v. Morrison, 158 8. The prisoner, who was a trustee of a Friendly Society, was ap- pointed by a resolution of the society to receive money from the treasurer and carry it to the bank. He received the money from the • treasurer's clerk, but, instead of taking it to the bank, he applied to his own use. He was indicted for stealing as bailee of the money of the treasurer, and also for a com- mon law larceny, the money being laid as that of the treasurer. The Friendly Societies Act, 18 & 19 Tict. e. 63. s. 18, vests the property of such societies in the trustees, and directs that in all indictments the pro- perty shall be laid in their names. Held, that the prisoner could not under these counts be convicted either as a bailee or of a common law larceny. Beg. v. Loose, 259 See Eeceitins (1), (3). LOTTERY. By the first section of 10 & 11 Wm. 3. c. 17, lotteries are declared to be common and public nui- sances. The second section, which came into operation on a subse- quent day, rendered persons keep- ing lotteries liable to a penalty, to be sued for by information or action. Statute 42 Geo. 3. c. 119. contains similar enactments with regard to lotteries called " Little- goes." Seld, on motion in arrest of judgment, on an indictment for keeping a lottery, containing counts framed upon the above- mentioned statutes, that the counts were good and the offence indict- able. The defendant kept an eating- house, and sold tickets for what was called the " The Great Eastern Money Club," in respect of which prizes were drawn, and the holders of the tickets, whosenumbers were drawn for prizes, received the same ; and the defendant deli- vered out the prizes to such ticket- holders. Seld, that this evidence was sufficient to support a conviction against the defendant for keeping a lottery, but not suffi-cient to support a conviction for keeping a room for betting upon horse- racing under the 16 & 17 Vict. c. 119. The jury returned a verdict of guilty, but recommended the defendant to mercy on the ground that perhaps he did not know that he was acting contrary to law. Held, that the conviction was not invalidated by the addition to the verdict. Beg. v. Grawsham, 303 INDEX TO THE PEINCIPAL MATTEES. S29 MANCHESTEE IMPEOVE- MENT ACT. The defendant was indicted for erect- ing a house within 24 feet of an- other existing house, contrary to the provisions of the Manchester Improvement Act. By section 30 of that Act it is enacted, that it shall not be lawful to huild any houses with their fronts facing each other, which shall be separated from each other by a space less than 24 feet wide, excepting only on sites of houses built prior to the act, and except on vacant plots in. streets partially built upon on both sides. It appeared that A., the owner of land, built up to the boundary of his land, the same not being in a street ; and some time afterwards the defendant, the owner of the land in front of the houses built by A., built a stable, within 24 feet, in front of ^.'s houses. Jleld, that the defendant was not prevented from doing so by the provisions of section 30, as that section applies only to the erection of new streets. Reg. v. Bideho- fham, 171 MANSLAUGHTEE. The defendant was convicted of man- slaughter. It appeared that the defendant was a person who made fireworks contrary to stat. 9 & 10 Wm. 3. c. 7. He kept a quantity of combus- tibles at his house for the purpose of his business as- a maker of fire- works ; and during his absence, through the negligence of his ser- vants, a fire broke out amongst such combustibles, and a rocket becoming thereby ignited flew across the street, and setting fire to a house opposite caused the death of a person therein. Held, that the conviction was wrong, as the death was not occa- sioned by the unlavs f ul act of the defendant, but by the negligence of his servants. Meg. v. 'Bennett, 1 MASTEE AND SEEVANT. See Embezzlement (3). MANSlAtrailTEB. NAVAL STOEES. The prisoner was convicted on an indictment, under 9 & 10 Wm. 3. c. 41. s. 2., charging him with having illegally had in his custody, possession and keeping, naval stores marked with the broad arrow. It appeared by the evi- dence that bags marked M, with their contents, addressed to G., an officer of The London and South Western Railway Company at Nine Elms, were taken by two females to the Portsmouth Station and duly forwarded tq London by rail- way, and deposited in the goods department of the railway at Nine Ehns, London, where Q-. acted as officer. The prisoner, a marine store dealer at Portsmouth, wrote and telegraphed to an officer of the railway Company to deliver the bags to Mr. Em/manuel. This was not done, but a letter written by O., stating " there are several bags lying at this station, con- signed by you to me, marked M, to whom are they to be delivered ?" was shewn to the prisoner by a clerk in the railway office, and the prisoner, in reply, directed the clerk to telegraph to " deliver to Plmmanuel as before." The bags, in consequence of information, were opened at the goods depart- 330 INDEX TO THE PEINCIPAL MATTEES. ment, and were found to contain naval stores marked with the broad arrow. Bags had been previously- forwarded in a similar manner by the railway to the goods depart- ment of the Company in London, marked E, which the prisoner had ordered to be delivered to Mrmnanuel. Held, that there was evidence to support the convic- tion. Begina v. Swnley, 145 PAWJSTBEOKEES. A pawnbroker's duplicate is the sub- ject of larceny. Begina v. Mor- rison, 158 See LiECEXT (7). PEEJUET. 1. A summons was issued by a jus- tice of the peace, under 7 & 8 Vict. c. 101., and 8 Vict. c. 10., on the application of the mother of a bastard child against the putative father, more than twelve months after the birth of such child. The summons stated that the mother alleged that the defendant had paid money for the maintenance of the child within twelve months after its birth, but did not state that she had "upon proof" ap- plied ; and it appeared in fact that no such proof had been given ex- cept the statement of the mother (not upon oath) to the justice. The putative father appeared at the Petty Sessions, according to the exigency of the summons, and made no objection to the proceed- ings; and the case, on the hear- ing at such Petty Sessions, was gone into upon the merits, when he swore that he had not paid any money for the maintenance of the child. He was thereupon indicted for pei^'uryand convicted. Meld, by Lord Campbeli C.J., Maetin B., Ceowdee J.,Wiii-es J. and "Watson B. -. 1. That a proceeding under the above sta- tutes against the putative father of a bastard child is not a pro- ceeding in poenam, but is in the nature of a civil suit. 2. That evidence of the payment of money by the putative father within the twelve mdnths was material on the hearing of the summons. HeU, by Lord CampbelIi C. J., Ceowder J.,'WiliiES J. and "Wat- son B., (Maetin B. dissentiente), that, assuming that there ought to have been evidence on oath of the payment of money by the putative father within the twelve months before the issuing of the summons, the defendant had submitted to the jurisdiction of the Petty Ses- sions, and waived and cured the want of such evidence, which was a mere irregularity in procedure. Held, by Maetin B., that the jurisdiction of the justice to issue the summons was a special juris- diction ; that to create it there must be proof on oath as a condi- tion precedent, and that no sub- sequent appearance could cure the want of such proof; the distinc- tion being between a Court of general jurisdiction and a special one, and not between proceedings of a civil and criminal nature. Be- gina Y. Berry, 46 2. The prisoner was convicted of perjury. The indictment charged that a cause was pending in the County Court of O. in which A. was plaintiff and B. defendant ; that, on the hearing of such cause, it "became a material question whether the said A. had, in the presence of the prisoner, signed at the foot of a certain bill of account between A. and B. a receipt for payment of the amount of the said bill;" and that the prisoner did falsely and knowingly swear " that the said A. did on a INDEX TO THE PEINCIPAL MATTEES. 331 certain day, in the presence of the prisoner, sign the said receipt, (meaning a receipt at the foot of the said firstly hereinbefore men- tioned bill of account, for the payment of the amount of the said bill)." It was proved that A. • had signed several similar receipts to similar bills in the presence of the prisoner. Held, that the indictment was sufiiciently certain and the con- viction right, Regina v. Webster, 154 3. A summons was issued by a jus- tice of the peace, under 7 & 8 Vict. 0. 101. and 8 & 9 Vict. c. 10., on the application of the mother of a bastard child against the putative father, more than twelve months after the birth of such child. The summons was in the form pointed out in the schedule to 8 & 9 Vict. c. 10., alleging that the mother had given proof of payment of money for mainte- nance of the child within twelve months after its birth : but no such proof had in fact been given to the summoning justice. The defendant appeared at the Petty Sessions, according to the exigency of the summons, and made no objection to the proceed- ings ; and the case on the hearing at such Petty Sessions was gone into upon its merits. The defendant was convicted on an indictment charging him with perjury committed at such Petty Sessions, the jury finding that he had not within twelve months after the birth of the child paid any money for its maintenance. Held, that the justices in Petty Sessions had jurisdiction, and that the conviction was right. Begina V. Simmons, 168 4. The defendant, who had peti- tioned the Court for the relief of insolvent debtors as a trader owing less than 300Z., was convicted on an indictment for perjury com- mitted by him before that Court at an adjourned hearing of the matters of his petition. The preliminary averments in the indictment were, that the de- fendant was a trader owing less than 300Z., and having resided as by law required within the dis- trict ; and in proof thereof the prosecutor produced the petition of the defendant, signed by him and filed in theCourtfor therelief of in- solvent debtors, wherein he alleged, as facts upon which with others he founded his application to that Court, the same matters as were set forth in such averments. Held, that the preliminary aver- ments were sufiiciently proved. The indictment also alleged that notice of the petition was inserted in the Gazette; that a day was appointed for the first examina- tion ; and that the sitting on that day was adjourned. No evidence was given in support of these alle- gations ; and it was objected that as they were not proved it did not appear that the Court had any jurisdiction to hold the examina- tion. Held, that, as, upon the filing of the petition, the Court had juris- diction to institute the examina- tion, and as the sittings of a Court of record are presumed to be lawfully and rightfully holden, thesfr allegations might be rejected as immaterial. The indictment also alleged that the prisoner after the passing and coming into operation of cer- tain statutes, to wit on the 20th of May, 1859, presented his peti- tion. The time when two of the statutes were passed was inaccu- rately described, and although the indictment purported to set out the titles of the statutes verbatim, 332 INDEX TO THE PEINCIPAL MATTEES. it inaccurately described the title of one of them. With regard to the time when the acts were passed, the Judge at the trial amended the indict- ment by striking out the words stating such time. Held; 1. That it was compe- tent to the Judge to make such amendment as above • stated. 2. That with regard to the misde- scription of the title of the sta- tute, which was not amended at the trial, as the reference was made to the statute only to indi- cate that the petition was pre- sented after the passing of such statute, and as it was also alleged in the indictment that the petition was presented on the 20th May, 1859, being a day after such pass- ing of which the Court was bound to take notice, the description of the title of the statute might be altogether rejected. Semble, that when the title of a statute is not correctly set out in an indictment, but is so described as to enable the Court to know with certainty what statute is re- ferred to, no objection to the in- dictment on account of the vari- ance could now be sustained. Megima v. Wesiley, 193 POSSESSION. See Laecekt (4). Naval Stoees. PEEVIOrS CONVICTION. It is no objection to an indictment for felony that a previous convic- tion is stated at the beginning, and not, as is more usual, at the end of the indictment ; and the proper course, when an indictment is so framed, is to state the new charge to the jury in the first instance, and then, if they return a verdict of guilty, to charge them to in- quire as to the fact of the previous conviction. Regina v. Hilton, 20 PEINCIPAL. . "When a prisoner is charged in two counts with stealing and re- ceiving, the jury may return a verdict of guilty on the latter count, if warranted by the evi- dence, although the e^'idence is also consistent with the prisoner having been a principal in the second degree in the stealing. Begma v. Hilton, 20 . The first two counts of an indict- ment charged A. and- B. jointly with stealing, and the third charged B. alone with receiving the Btolen goods. A. was ac- quitted, no evidence having been offered against him, in order that he might be a witness against the other prisoner. Upon his and other evidence, which proved that B. was an accessory before the fact to the stealing and afterwards received the stolen goods, the jury found a general verdict of guilty against B., which verdict was entered upon all the counts. Held, that B. was not entitled to an acquittal upon the first two counts by reason of the principal, A., having been acquitted, be- cause 11 & 12 Viet. c. 46. s. 1. has made the being an accessory before the fact a substantive felony, and the conviction of the principal is not now a condition precedent to the conviction of an accessory. Held, also, that there was no inconsistency in the general ver- dict, as an accessory before the fact may also be a receiver. Be- gina v. Hughes, 242 INDEX TO THE PEINCIPAL MATTEES. 333 PEOPEETT OE EELOK A Judge has no power, either at common law or by statute, to di- rect the disposal of chattels in the possession of a convicted felon, not belonging to the prosecutor. Begina y. Fierce, 235 EAILWAT. A railway truck was placed by the defendants across a line of rail- way, so as to obstruct the passage of any carriage, and to endanger the safety of any passengers con- veyed thereia; but its position was discovered, and the truck re- moved, before any collision took place. The line of railway was con- structed under the powers of an Act of Parliament, and was in- tended for the conveyance of pas- sengers in carriages drawn by the power of steam ; but, at the time of the alleged offence, the convey- ance of passengers for hire had not commenced, and the traffic was confined to the carriage of materials and workmen. Seld, that the so placing the truck across the Une was an offence within section 15 of 3 & 4 Yiet. c. 97., although the line was not opened, and no actual obstruction took place. Megina V. Bradford, 268 EAPE. The prisoner was indicted for a rape upon a girl of weak intellect, in- capable of distinguishing right from wrong, and who was not shewn to have offered any resist- ance. The Judge told the jury, that, if they were satisfied upon the evidence that the prisoner had carnal knowledge of the girl by force and against her will, they TOL. I. A A ought to convict ; and also that, if they should be of opinion that the girl was incapable of giving consent or of exercising any judg- ment upon the matter, then, if they were satisfied upon the evi- dence that the prisoner had car- nal knowledge of the girl by force and without her consent, they ought to find him guilty. The jury found the prisoner guilty, and stated that they con- sidered that the girl was incapable of giving consent from defect of understanding. Held, that the conviction was right. Begina v. Metcher, 63 EECEIVING. 1. Wtere a prisoner is charged in two counts with stealing and re- ceiving, the jury may return a verdict of guilty on the latter count, if warranted by the evi- dence, although the evidence is also consistent with the prisoner having been a principal in the second degree in the stealing. Megina v. Hilton, 20 2. The first count of the indictment charged the prisoner with stealing certain goods and chattels ; and the second count charged him with receiving "the goods and chattels aforesaid of the value aforesaid so as aforesaid feloni- ously stolen." After objection that he could not be found to have feloniously received goods stolen by himself, the case went to the jury, and the prisoner was acquitted upon the first count, and convicted upon the second. Seld, that the conviction was good. Begina v. Huntley, 238 3. The first two counts of an indict- ment charged A. and B. with jointly stealing, and the third charged B. alone with receiving 334 INDEX TO THE PEINCIPAL MATTERS. the stolen goods. A. was ac- quitted, no evidence having been offered against him, in order that he might be a witness against the other prisoner. Upon his and other evidence, which proved that 3. was an accessory before the fact to the stealing and afterwards received the stolen goods, the jury- found a general verdict of guilty against S., which verdict was entered upon all the counts. Meld, that there was no incon- sistency in the general verdict, as an accessory before the fact may also be a receiver. Reg. v. Hughes, 242 4. The prisoner and her husband and P. were indicted jointly for burglary and receiving. The jury found P. guilty of housebreaking, and the prisoner and her husband guilty of receiving. Part of the stolen property was found in the house where the pri- soner and her husband lived toge- ther, and the prisoner in the ab- sence of her husband, sometime after the housebreaking, was seen dealing with part of the stolen tilings, when she made a statement importing a knowledge that they had been stolen. The Judge at the trial declined to leave it to thejury to find whether the prisoner re- ceived the stolen property from her husband or in his absence. Seld, that the conviction could not be supported. Beg. v. Ward- roper, "49 VAEIANCE. - See Peejuey (4). VEEDICT. See Indictment. "WAIVEE. See Peejubt (1), (3). WOUNDIlSrG-. Three prisoners were indicted for feloniously cutting and wound- ing H. S., with intent to do him grievous bodily harm. The jury found two of them guilty of the felony charged, and the third guilty of the misdemeanor of un- lawfully wounding. Semile, that the conviction was good under 14 & 15 Vict. c. 19. «. 5. Meg. v. Gwnningham, 11 See JuEisDiCTiON (1). THE END. EATNEE AND nODGES PRIKTERS, FETIEE LANE. E.C.