Cornell University Library KD 7865 1852.D28 Crown cases reserved for cons|,«'S''°"' 3 1924 017 826 672 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/cu31924017826672 CROWN CASES EESEEVED POE CONSIDEEATION, , , '/" ' DECIDED BY THE JUDGES OE ENGLAND, A SELECTION OF CASES RELATING TO INDICTABLE OFFENCES, ARGUBD AND DETERMIKED IN THE COURT OF QUEEN'S BENCH %\t €mxis d^xxm. BY HENRY RICHARD DEARSLY, OF THE MIDDLE TEMPLE, BSQ., BARRISTER-AT-LAW. VOL. I. FROM 13th Nov., 1852, to 26th April, 1856, inclusive. LONDON: STEVENS & NORTON ; H. SWEET, AND W. MAXWELL, LAW BOOKSELLERS & PUBLISHERS. 1856. tONDOv ' EAVMliR Afjn HODGiSR, prtlNTERS, 309, Fetter Lane, Fleet Street, PREFACE. In presenting this Volume of Crown Cases to the Pro- fession, I take the opportunity of oflPering my respectful acknowledgments to Lord Campbell, Lord Wensley- DALE, Mr. Justice Coleeidge, and to the rest of the learned Judges, for the kindness and courtesy with which they have handed to me, from time to time, their written Judgments in Cases of great importance. I feel also grateful to Mr. Greaves, Q. C, Mr. T. F. Ellis, and to many others of my learned brethren for many valuable suggestions and communications, which have tended, in no small degree, to facilitate my labours ; and in a most especial manner I have to offer my thanks to my learned friend Mr. Bell, of the Midland Circuit, for the kind assistance he has afforded me. My predecessor, the late Mr. Pearce, proposed, in the conducting of these Reports, to depart from the plan originally laid down by Mr. Denison, by adding IV PREFACE. Oases ejusdem generis, argued and decided in Her Majesty's Superior Courts at Westminster. I have reason to know that this course, in the opinion of the learned Judges and of the Profession generally, is not considered desirable. I have determined, there- fore, in future, to adhere to the original plan of Mr. Denison, and to confine these Reports to the Crown Cases Reserved. The late Mr. Pearce reported down to Riley's Case inclusive. For the remainder of the Volume I am responsible. HENEY EICHAKD DEAESLY. Temple, June 26, 1856. A TABLE OF THE NAMES OF CASES. Page Alleyne and Others v. Regina. Writ of error obtained by fraud ...... 512 Dugdale v. Regina. Indictment. Obscene Prints. . 64< V. . Indictment. Error. Obscene Prints. Recognizance ..... ^Si Regina V. Alleyne and Others. Writ of error. Setting aside entry of judgment .... 505 Archer. False pretences. Credit given to pri- soner ...... 449 Arman. Embezzlement. Receipt by virtue of employment. Question for jury . . . 575 Austin and Turner. Admissibility of depositions. Absence of Witness . . . .612 Bailey. Indictment. Possession of implements of housebreaking ..... 244 Barrouet and Allain. Bail. Duel. Murder . 51 Barthelemy and Morney. Bail. Duel. Murder 60 Beaumont. Embezzlement. Evidence. Receipt on account of master . . . . 270 Beeston. Admissibility of depositions. Same charge. Opportunity of cross-examination . 405 Brooks. Receiving, Husband and wife , 184 VI TABLE OF CASES. Page Regina V. Brown. Larceny. Money obtained hy fraud 616 Bullock and Another. Conspiracy. False pre- tences. Jttempt . . . • • "^"^ Burdett. Witness called by prisoner. Right of other prisoner to cross-examine and veply • .41.51 Burton. Larceny. Evidence. Corpus delicti 282 Carlisle and Brown. Conspiracy. Inducing. Cre- ditor to forge claim . . . • So? Chandler. Maintenance of child by parent. proof of means . . . • • 453 Clark et al. Larceny. Indictment. Previous conviction . . . . • .198 Clarke. Rape. Married woman. Consent ob- tained hy fraud ..... 397 Cornish. Larceny. Bailment. Carrier . 425 Dale. Indictment. Nonpayment of penalty. Alehouse Act . . . . .37 Davis and Another. Venue. Offence committed partly in one county and partly in another . 640 Denton, Inhabitants of. Indictment. Highway. Repealed statute . . ■ . .3 Dixon. Larceny. Lost property . . 580 Dolan. Receiving stolen goods. Authority of owner. Costs in Court of Criminal Appeal , 436 Dugdale. Indictment. Obscene prints . 64 Dugdale. Indictment. Error. Obscene prints. Recognizance ..... 254 Eagleton. False pretences. Contract. Attempt. Credit in account . . . 376, 515 Featherstone. Reserved case. Signature. Lar- ceny. Adulterer ..... 369 Ferguson. Felonious assault with attempt to steal. Misdemeanor by attempt to steak Misjoinder of counts ... , . 427 Forster. Counterfeit coin. Subsequent uttering. Different denomination. Guilty knowledge . 456 Frost and Russell. Matter of description. Chris- tian names. Amendment .... 474 Garrett. False pretences. Attempt. Obtaining money ..... 232 TABLE OF CASES. Vll Page Regina v. Gibbs. Embezzlement, Bailee. Breach of trust . . . . . • 445 Gill. Embezzlement. Master and servant. Evi- dence ...... 289 Goodenough. Embezzlement. Larceny • 210 Gordon. Bankrupt. Not surrendering. Evi- dence. Alteration in proceedings. Power of Com- missioners. Notice in Gazette. Joint adjudication. Notice to surrender. Service on each bankrupt . 586 Green. Larceny. Evidence. False entries of payments by servant .... 323 — Greenhalgh. False pretences. Order. Valuable security ..... 267 Harris. Embezzlement. Master and servant. Dishonest use of Master's mill. Venue . 344 Henson. Indictment. Glandered horse . 24 Hewgill. False pretences. Indictment. Evidence. Variance ..... 315 Hobson. Receiving stolen goods. Evidence for the jury ..... 400 Hodgson. Certiorari. Costs. Recognizance. Estreat . . . .14 — Holmes. Indecent exposure. Public place . 207 Hornsea (Inhabitants of). Repair of highways. Encroachment of sea. Carriage road. Costs . 291 — Jarvis. Counterfeit coin. Evidence of intent to utter . . . . ■ . . 552 Jussup. False pretences. Answers on attestation of Militia volunteer. Mutiny Act . .619 Keith. Engraving promissory note of banking company, "purporting" to be part of note. Extrinsic evidence ..... 486 Kitson. Arson. Notice to produce. Policy. Secondary evidence . . . .187 Lands. Bankrupt obtaining goods under colour. Evidence. Act of bankruptcy. Petition to Insolvent Court . . . . . .567 Larkin. Scienter. Objection after verdict. Arrest of judgment. Amendment. Record • . 365 VIII TABLE OF CASES. Page Regina v. Leech. Venue. Offence begun in one county and completed in another . . • ■ o*^ Luckhurst. Confession. Juthority. Threat . 2i5 Major. Perjury. Certiorari. Party grieved 13 Mankletow. Abduction. Taking out of posses- sion of parents. Consent ■ • , loy Manning and Smith. Larceny. Accessory • 21 Millard. Information. Jurisdiction. Malicious . 166 Mitchell, et. al. Indictment. Aggravated assault. Intent to rob . . • • .19 Moah. Embezzlement. Public Servant. Evi- dence. General deficiency . . • 626 Morgan and Mackeowan. Larceny. Fraud. Pretended Sale . . • .395 Newman. Criminal information. Libel. Evi- dence , , . . . .85 Oates. False pretences. Existing fact. Over- charge ...... 459 Overton. Embezzlement. Receipt stamp . 308 Perry. Concealment of birth. Temporary dis- position of body . . . . 47 1 Phillpot. Abandonment of infant. Averment. Evidence . . . . .179 Povey. Indictment. Law of marriage. Scotland 32 Pratt. Larceny. Possession. Bailment. . 360 Pratt. Trespass on highway in pursuit of Game. Night poaching .... 502 Probert, et. al. Certiorari. Procedendo. Recog- nizances . . . , .30 Reason. Larceny. Employment under post-office 226 Reed. Larceny. Master and servant. Con- structive possession . . . 168-257 Riley. Larceny. Trespass. Felonious Tres- pass . . . . . .149 Roberts. Counterfeiting foreign coin. Attempt- ing to coin. Act proximate to offence . . 539 Robins. Larceny. False pretences. Property. possession , . , . , .418 TABLE OF CASES. IX Page Regina v. Rundle. Ill treating lunatic. Persons having care of lunatic. Husband and wife . • 482 Samways and Willis. Larceny. Asportation. Circumstantial evidence. Constructive possession . 37 1 Sharpeetal. Larceny. Venue. Carriage pass- ing through different counties . . ,415 Sliarman. Uttering forged document. Uttering at common law ..... 285 Shepherd. Stealing post letter. Trap letter . 606 Sill. False pretences. Removal of indictment 10 Sill. False pretences. Error. Indictment. Ownership of property. • • .132 Simpson. Larceny. Stealing from the person. Severance . . . . ■ .421 Sleeman. Arson. Confession. Inducement. Master and servant .... 249 Slogget. Evidence, Examination of bankrupt. Questions tending to criminate . . • 656 Smith, Henry. Shooting at A. with intent to killB. . . . . . .559 Smith, Hugh Joseph. Larceny. Valuable secu- rity. Scrip of foreign railway company . . 561 Smith, Thomas. Receiving stolen goods. Manual possession. Control .... 494 Snelling. Forgery. Order for payment of money. Parol evidence . . . . .219 Stripp. Prisoner's voluntary statement during examination. Caution when necessary . . 648 Stone. Perjury. Authority to administer oath. Admiralty court. Master in chancery . .251 Stubbs. Corroboration of accomplice. Direction to jury . . . . . . 555 Tew. Larceny. Administration of oath . 429 Topping. Bigamy. Marriage in Scotland by British subject ..... 647 Vodden. Larceny. Amendment of verdict . 229 — — Walker and Morrod. Larceny. Evidence for jury ...... 280 Walker. Constable. Wounding. Intent to pre- . vent lawful apprehension . . . 358 X TABLE OF CASES. Page Regina v. Watts. Larceny, Unstamped agreement. Chose in action ...... S2(i Welman. False pretences. Evidence. Con- tinuing representation . . ' .188 West. Larceny. Finding. Difference between property lost and mislaid .... 402 White. Larceny, Asportation. Severance . 20c5 Whitehouse and Trench. Misdemeanor. Sur- prise, New trial. Costs . . .1 Whiteman. Malicious trespass. Damaging trees. Consequential injury .... S5S Wilson. Indictment by order of Lord Mayor of London. Certiorari. Costs , ■ . .79 Sill V. Regina. False pretences. Error. Indictment. Ownership of property . , ,132 A TABLE OF STATUTES. Page 32 Hen. 8. c. 13. s. 9 . . 26 I & 2 Philip & Mary, c. 13 412 3 & 3 Philip & Mary, c. 10 412 5&6Wm. &M. c. 11 . 30 s. 2 . . . . 14 s. 3 . . 13, 14, 79 37 Geo. 3. c. 126. s. 2 . 539 59 Geo. 3. c. 22. s. 4 . . 8 4 Geo. 4. c. 64. s. 48 . . 346 7 Geo. 4. c. 64. s. 12 . . 646 s. 13 . . 415 s. 15 . . 347 7 & 8 Geo. 4. c. 29. s. 5 . 561 s. 47 . . . 626 s. 53 10, 267, 619 8 Geo. 4. c. 30. 8.19 . . 353 S8. 24. 30. 166 9 Geo. 4. c. 31. s. 14 . . 471 8. 20 . . 159 s. 22 . . 647 c. 61 . . . . 37 c. 69. s. 2 . . 474 s. 9 . . 502 10 Geo. 4. c. 34. s. 23 . 164 II Geo. 4 & 1 Wm. 4. c. 66. s. 3 . . 219 8. 18 . . 486 1 & 2 Wm. 4. c. 32. s. 30 502 2 Wm. 4. c. 4. s. 1 . . 626 c. 34. s. 8 . . 552 4 & 5 Wm. 4. c. 36. 8. 16 10 Page 5 & 6 Wm. 4. c. 33 . . 58 c. 76 . . 37 7 Wm. 4 & 1 Vict. c. 36. 8. 26 226, 606 c. 85. 8. 3 . . . . 559 c. 87. 8. 3 . . . . 20 s. 6 . . . . 20 6 & 7 Vict. c. 96. s. 6 .85 8. 8 . 131 8 & 9 Vict, c, 68 . . . 76 8. 2 . 254 9 & 10 Vict. c. 24. 8. 4 . 256 11 & 12 Vict. c. 42. s. 17 405, 613 s. 18 . 648 s. 34 59, 63 c. 43. 8. 31 . 43 c. 78. s. 2 . 370 12 & 13 Vict. c. 45. s. 11 502 c. 106 567, 586 c. 109. s. 39 505 14 & 15 Vict. c. 10 . . 6 c. 11. s. 1 . 183 c. 19. s. 1 . 244 s. 9 . 202 c. 100.8. 1 . 147 8. 8 . 147 8. 11 20 8. 24 143, 474 s. 25 138, 207 16 & 17 Vict. c. 96. 8. 9 . 482 18 & 19 Vict. c. 11.8. 57. 619 XIU ERKATA ET ADDENDA. Page 179, line 77St»md of Jieg. v. Seed, add "see post, 257." 198, line 8, for *there" read " he." 287, line 18, for " iW' read " Piatt." •• line 32, for " Tos^ltt^ read " Toshack. " 314, at end of Reg. v. OoertSjf, add " See now 17 & 18 Viet. c. 83. 315, marginal note, line 33, foSSJi." read "him.' 394, at foot of page, add " See poSs^516." . 27." REPORTS OF CROWN CASES RESERYED, Sfc. Sfc. Sfc. KEGINA V. ISAAC WHITEHOUSE AND jgsg JAMES TENCH. - The defendants were tried before Mr. Justice a new trial WiGHTMAN, at the Staffordshire Spring assizes, on gjantg^on the 9th March, a.d. 1852, on an indictment for a anindict- conspiracy, removed into the Queen's Bench by cer- misdemea- tiorari, and sent down for trial at Stafford, before ""gj^'^'of^ that learned Judge, and which charged that Isaac s«rpme,asin Whitehouse, a publican, and James Tench, an attorney, 2. Where had conspired together to cheat and defraud Margaret ^a^^indLt- Barbara Beard, the prosecutrix, and one William mentre- Francis Shaw of the documents of title to certain the Queen's leasehold property in Birmingham, and the rents and i*ench by r r J , , . . . , certwrari at profits thereof ; also to make the said William. Francis the instance Shaw drunk, and to induce him, while in a state of fendant, is drunkenness, to sign a conveyance of the same property, ordered on of surprise, the Court may, in its discretion, order the costs to await the event of the new trial, VOL. I. B 1852. White- house's Case. CROWN CASES RESERVED. The indictment contained twelve counts ; and the jury found the defendants guilty on the fourth count. On the 20th April, Easter term, a. d. 1852, Allen Serjt., and McMahon for the defendants (a), moved for a rule nisi in the Queen's Bench, before Lord Camp- bell C. J., WiGHTMAN J., Erle J., and Crompton J., for a new trial on the ground of Surprise, and that the verdict was against evidence. The motion was grounded on affidavits, from which it appeared that the prosecutrix, Margaret Barbara Beard, having some supposititious claim to certain pro- perty in Birmingham, under the will of a Miss Mickle, deceased, was desirous of disposing of her interest in it, and that the defendant, James Tench, was employed as an attorney to draw up an agreement between her and other parties respecting the same. An agreement was entered into between William Francis Shaw and Margaret Barbara Beard, and a deed of conveyance of the equity of redemption executed ; and then a mortgage from Shaw to the defendant Whitehouse for the sum of 150/. was prepared ; a deed intervening between the mortgage and the conveyance of the equity of redemption. The agreement dated 28th September, a. d. 1850, between the prosecutrix, Beard, and Shaw, reciting the sale under mort- gage deeds, was put in evidence at the trial on the part of the defendants, and it then became a mate- rial question whether that was a genuine document, and whether the signature of Margaret Barbara Beard was genuine or not. The prosecutrix swore that she knew nothing whatever of the sale, and that the signature was a forgery. Shaw, one of the partieswhom the indictment charged the defendants with conspirino- (a) The defendants were present in Court when the motion was made. Case. CROWN CASES RESERVED. to defraud, was absent during the trial, and the affi- 1852. davits set forth the absence of so material a witness ""white^ whom the defendants fully expected would have been house's called as a witness for the Crown, and who it appeared concurrently with Beard had sigfled the deed, as a ground of surprise. The defendant Tench made an affidavit that the prosecutrix did execute the docu- ment reciting the sale; and Shaw and others made similar affidavits, The Court granted a rule nisi for the new trial (a) on the ground of Surprise ; against which Hoggins shewed cause in Trinity term, a. d. 1852, when the rule was made absolute ; the Court ordering that the costs (6) should await the event of the trial. (a) The nevr trial was had at defendants were acquitted, the ensuing Summer Assizes for (6) See Rex v. Ford, 1 Nev. & the county of Stafford, when the M. 776. REGINA V. THE INHABITANTS OF THE 1852. TOWNSHIP OF DENTON. This was an indictment for a nuisance in not repair- where an ing a highway, preferred against the inhabitants of fia'nentupon the township o{ Denton, in the parish of Manchester, which an _^ _', . . , indictment removed mto the Queen s bench by certiorari, and was framed, tried at the Liverpool Spring assizes, a. d. 1852, ZTJZln'^ before Mr. Justice Cresswell. dictment was The indictment contained four counts. On the the grand first and second counts, stating the liability of the i"f^re^p{ea defendants to repair the hiehway in question at com- pleaded: ., rr 1 T • 1 HeW. that mon law, no evidence was ottered at the trial. the judg- The third and fourth counts were framed upon the ™g^"jr™sud B 2 4 CROWN CASES RESERVED. 1852. fourth section of the 59 Geo. 3, c. 22, which provided : Re„,^^ —"That in any indictment, presentment, or other V. proceeding against the inhabitants of any of the said InhabUa°r!t8. townships, for not repairing any highway within such township, it shall be sufficient to allege generally that the inhabitants of such township ought to repair and amend such highway, without setting forth any custom or prescription for that purpose, or referring to the authority of this act." The third count was as follows : — That on the said 1st day oi March, a.d. 1851, and long before there was and from thenceforth continually hitherto there hath been and still is in the township of Denton, in the parish of Manchester, in the county of Lancaster, a certain common and public Queen's high- way, to wit, the Stockport and Ashton turnpike road leading from Stockport, in the county palatine of Chester, to near new houses in the county of York, used by and for all the liege subjects of our said lady the Queen, and her predecessors, with their horses, coaches, carts, carriages to go, return, pass, ride, and labour at their free will and pleasure. And that a certain part of the said last-mentioned Queen'shighway, situate, lying, and being in the township o{ Denton aforesaid, in the parish of it/arecAesfer aforesaid, in the county of Lancaster aforesaid, beginning at and op- posite to the west end of a certain garden occupied by one Samuel Crabtree, in the township of Denton aforesaid, in the county of Lancaster aforesaid, and extending from thence to a certain place called the Three Lane Ends, in the township of Denton afore- said, in the comity oi Lancaster aforesaid, and con- taining in length, divers to wit, 467 yards, and in breadth, divers to wit, ten yards and a half, on the said 1st day of March, a d. 185 1, and thence continu- ally afterwards until the day of the taking of this CROWN CASES RESERVED. 5 inquisition at the township o^ Denton aforesaid, in the 1852, county of Lancaster aforesaid, was and yet is very ~'^^^^' ruinous, miry, deep, broken, and in great decay for v. want of due reparation and amendment of the same, inhabitants. so that the liege subjects of our said lady the Queen, with their horses, coaches, carts, and carriages in, through, by, and over the said last-mentioned part of the said Queen'shighway, from thesaid 1st day of iWarcA, A.D, 1851, hitherto could not nor yet can go, return, pass, ride, and labour as they were wont and ought to do without great danger of their lives and loss of their goods, to the great damage and common nuisance of all the liege subjects of our lady the Queen going, returning, passing, riding, and labouring in, tlirough, and over the said last-mentioned part of the said last- mentioned highway, to the evil example of all others in the like case offending, and against the peace of our said lady the Queen, her Crown and dignity ; and that the said highway in this count mentioned is not a highway, in respect whereof certain JDroceedings men- tioned in an Act of Parliament passed on the 8th day oi April, A.D. 1819, to wit, an act entitled An Act for providing that the several highways within the parish o^ Manchester m the county palatine of Xaracasfer, shall be repaired by the inhabitants of the respective town- ships within which the same are situate, or any of the said proceedings have been had, or in respect whereof certain verdicts in the said acts of Parliament men- tioned, or any of them have been given, or in respect whereof any verdict had before the passing of the said act of Parliament been obtained against the inhabitants of the palish of Manchester aforesaid at large. And that the inhabitants of the township of Denton afore- said, in the county of Lancaster aforesaid, ought to repair and amend the said part of the said highway in 6 CROWN CASES RESERVED. 18o2. this count mentioned, and so being in decay as last regina aforesaid, when and so often as it shall be necessary." ^ V. The 4th count was in the same form as the 3rd Denton , . . • i i t Inhabitants, count, except that It omitted the last averment. Plea. Not guilty. After the finding of the indifitment, but before plea pleaded, the stat. 59 Geo. 3, c. 22, was repealed by an Act of Parliament, entitled An Act for relief to the several townships in the parish of Manchester, from the repairs of highways not situate within such town- ship respectively, 14 & 15 Vict. c. 10, and the later statute contained no re-enactment of the section upon which the 3rd and 4th counts were framed. The jury found the defendants guilty on the 3rd count; and on the 20th April, a rule nisi was obtained in the Queen's Bench to arrest the judgment. On the 9th June, a.d. 1852, this case was argued before Lord Campbell C. J., Coleridge J., Ekle J., and Crompton J. Atherton Q. C, and J. A. Russell for the Crown : Knowles, Q. C, and Cowling for the defendants. Atherton Q. C. The recent stat. 14 & 15 Vict. c. 10. only repealed 59 Geo. 3, c. 22, in form and not in substance. The Court would take notice that the subject-matter of the liability stated in the third count remained unchanged, and the question was, would the change in form occasioned by the repeal of the statute make a difference ? The count was good when the indictment was found by the grand jury, and that being so, the Court could pronounce judgment upon it. If, by the interference of the Legislature, such a substantial change were made as to alter the essentials of the offence, the pending proceeding could not go on ; but that was not so where the change effected by CROWN CASES RESERVED. the statute was only a change of form. This distinc- tion seemed to be warranted by Rex v. The Inhabi- tants of Mawgan, 8 Ad. & E. 496. In that case there was a difference in substance occasioned by the repealing statute ; but, here 14 & 15 Vict. c. 10, merely omits the fourth section of 59 Geo. 3, c. 22, and the only difference made is in respect of the form of words in which the aceusation in the indictment is couched. Coleridge J. referred to the observations of Lord Tenterden, in Surtees v. Allison, 9 B. & C. 750, and to other decisions under the Bankrupt Laws (a). AtheTton Q.C. Lord Tertier-ofen's observations in that case seemed to be stronger than the facts of the case demanded. The cases of Hitchcock v. Way, 6 Ad. & E. 943, and Moon v. Burden, 2 Exch. Rep. 22, are authorities to shew that acts of Parliament passed while proceedings are pending are not to be construed as affecting substantial rights. Lord Campbell C. J. — This is the case of a simple repeal of the former act. Atherton Q. C. Whether the repealed or repealing act be looked at, in substance, the offence remained the same. Knowles Q. C. and Cowling, were not called upon by the Court. Lord Campbell C. J. — It is admitted that without the act 59 Geo. 3, the count on which the jury have given a verdict for the Crown, would be bad, and that judgment could not be given upon it ; and the question now is whether we can pronounce judgment 185!^. Rggina V. Denton Inhabitants. (,a) See Hewson v. Head, 9 B. & C. 754 n. Palmer v. Moore, 9 B. & C. 754, n. Maffgs v. Hunt, 12 Moore, 357. Ex parte Batten, 1 Mont. & Mac. 2S7. Worth v. Budd, 2 B. & Adol. 172 ( 1 Dowl. P. C. 328. Phillips V. Hopwood, 10 B. & C. 33. 8 CROWN CASES RESERVED. 1852. or arrest the judgment? The general rule of law is jjjjjjjjj^ that a repealed statute cannot be acted upon after its y. repeal, although all matters that have taken place Inhabitants, under it before its repeal are valid and cannot be called in question. We are not at liberty to pro- nounce judgment under a repealed statute, although the statute was in force at the time of the preferring the indictment. This principle was acted upon in Eex V. Mawgan referred to in the argument, and I think that case is not distinguishable from the present. It is argued that there is a difference between the case where the repealing statute affects the substance of the proceeding, and where it affects only the form, but I do not think that such a dis- tinction can be maintained. In Rex v. Mawgan the offence remained unaltered ; the only difference made by the repealing statute was in the mode of pro- cedure. The count, therefore, as the law stands is bad, and we are bound to arrest the judgment ; and in doing so we give the act 14 & 15 Vict, c. 10, no retrospective operation, but deal with it only from the time of its passing. Coleridge J. — We have authority upon the point, but if the matter were res Integra, I think we must have arrived at the same conclusion. The count is bad at common law, and the act under which it was framed, and by which it would have been good, has been wholly repealed. The only question that re- mains then is, whether the fact of the proceeding being in course of process can make any difference. I do not think that it makes any difference ; what has been perfected under operation of the statute is not to be disturbed ; but if the statute be necessary for any farther step, it must be in force at the time of taking that farther step. This is laid down by Lord Tenter- CROWN CASES RESERVED. '9 dm, in Stir tees v. Ellison (a), where he says, " It 1852. has long been established, that when an act of Par- ~^^^^^^ liament is repealed it must be considered except as v. to transactions past and closed, as if it had never inhabita°n'ts existed." That is the correct rule of law on this sub- ject, and is conclusive here. Bex v. M'Kenzie, Russ. & Ry 429, is an authority to the same effect. Ehle J — I also am of opinion that the judg- ment must be arrested ; the rule of law being that a repealed statute, as regards proceedings after its repeal, is as if such a statute had never existed. This indict- ment charges the defendants with a neglect of duty imposed upon them by 59 Geo. 3, c. 22, in the form given by that act of Parliament; and between the timeof the finding of the indictment by the grand jury and of pleading, the act is repealed. To ask this Court, after that, to give further operation to the proceeding and pronounce judgment upon the indictment framed under the act, is to seek to contravene the meaning of the word " repeal," according to the force given to it by the rule of law I have referred to. The argument as to the diflference where a repealing statute affects matters of form and matters of substance, I think fails, for the liability of the defendants in this case is founded upon the very words of the repealed act. Crompton J. concurred. The rule to arrest the judgment was accordingly made absolute. {a) 9 B. & C. 750. 10 CROWN CASES RESERVED. 1852. REGINA w. RICHARD SILL. The Court An indictment charging the defendant with obtain- BencThas ing money by false pretences having been found at ksuralpedal the Middlesex sessions, in Trinity term, a.d. 1852 ; writ or order Doyk, hv the defendant, moved in the Queen's o'facertio"'' Bench before Lord Campbell C. J., Erle J., and Ti^Wm Crompton J., for a rule nisi for a certiorari, in 4, c. 36, for order that the defendant should have the benefit of oflndkt'-'''' a trial at the Central Criminal Court, before Judges Xainin"^ of the superior Courts sitting there. He relied money under upon the 16th section of the Central Criminal lencerfrom Court Act, 4 & 5 Wm. 4, c. 36, which enacts, the Sessions .< ^\^g^^ jt gj^aH [^^ lawful for his Majesty's Court mentioned • r-^ in that act, of King's Bench, or any Judge thereof, or any Cora- trai Crimrnal Hiissioner of Oyer and terminer and gaol delivery ^°h'*' "d* under this act, being a Judge of any of the superior 7 & 8 Geo. 4, Courts at Westminster, or the chief Judge or any takin'g^awa'y Other Judge of the Court of Bankruptcy, or the Re- certiorari, in corder of the Said city of London for the time beine, the case of in- . •' i ii i . i dictments for if such Court, Judge or Recorder shall think proper to ohtaining • .. •/. r ,.• • lU money under 'ssue any wFit or Wilts 01 certiorari, or other process false pre- directed to his Majesty's justices of the peace acting; tences. . ... . in and for the cities of London and Westminster, the liberty of the Tower of London, the borough of Southwark, and the counties of Middlesex, Essex, Kent, and Surrey, or either of them to certify and return into the said Court of oyer and terminer (a), indictments or presentments found or taken before the said justices of the peace, or any of them of any offences cognizable by virtue of this act, and the several re- (a) Section 15, provides that year, before Judges of oyer and Sessions shall be holden in London terminer, or the suburbs, twelve times a- CROWN CASES RESERVED. 1 1 cognizances, examinations, and depositions relative to 1852. such indictments and presentments, so tliat the same suaJs oflfence may be dealt with, tried, and determined, Case. by the said justices of oyer and terminer and gaol delivery ;" he also cited case of Meg. v. Brier, 19 L. J., M. C. 121. Metcalf, for the Crown, shewed cause in the first instance. Ttie Stat. 7 & 8 Geo. 4, c. 29, s. 53, expressly en- acted " that no such indictment shall be reraoveable by certiorari." The indictment, in the present case, could not therefore be removed into the Queen's Bench, and this he submitted was an attempt to induce the Court to do indirectly what, by law, could not be done directly, — an attempt which he trusted the Court would not sanction. There was a specific enactment in the 53rd section 7 Geo. 4, c. 29, taking away the writ of certiorari in the case of false pretences, and that could not be held to be repealed by the general power, to remove certain indictments given to this Court, by the Central Criminal Court Act. • Doyle, in reply. The Stat. 4 & 5 Wm. 4, c. 36, s. 16, clearly em- powered this Court to make an order for the removal of the indictment, so that it may be tried before one of the Judges of the superior Courts, sitting at the Central Criminal Court ; and the stat. 7 & 8 Geo. 4, c. 29, does not apply to such a case as the present. Lord Campbell C. J. — Probably what we should have been asked for was not strictly a writ of cer- tiorari, but an order under the 16th section of 4 & 5 Wm. 4, c. 36, in the nature of a certiorari, to transfer the indictment from the Middlesex sessions to the Central Criminal Court, for trial there ; and we make that order. A writ of certiorari would remove the 12 CROWN CASES RESERVED. 1852, indictment into this Court, a course which is forbidden ^^^^.^ by 7 & 8 Geo. 4, c. 29, s. 53. It is difficult to say Case. absolutely that it cannot be further removed because it cannot be removed directly, but the Court would be slow in allowing that to be done indirectly, which it is forbidden to do directly. Coleridge J. — It appears to me that the tJth sec- tion of 4 & 5 Wm. 4, c. 36, does not repeal the 53rd section of 7 & 8 Geo. 4, c. 29, but that the writs re- ferred to. in the former are different writs from those contemplated in the latter. The writ intended in the later act is, I think, a special writ to remove indict- ments cognizable under the statute at once into the Central Criminal Court without bringing them into the Court of Queen's Bench at all. Erle J. concurred. Crompton J. — It is evident that the ordinary writ of certiorari canxxot be meant by the I6th section as the power to issue the writ or process under it is given to a Judge of the Court of Bankruptcy. The Court accordingly granted the rule. ■» Upon a subsequent day, 12th June, Metcalf ob- tained a rule nisi to quash the rule and remit the in- dictment to the Middlesex sessions unless the defendant immediately proceeded to trial at the Central Criminal Court, cause to be shewn next term. The case, however, came on for trial at the August session at the Central Criminal Court, when the de- fendant was found guilty, and sentenced to two years' imprisonment {a). (a) See Sill v. The Queen, (in Error), post. CROWN CASES RESERVED. 13 REGINA V. MAJOR. 1852. An indictment for perjury upon an affidavit in Thedefend- Chancery having been preferred against the defendant victed of at the Central Criminal Court, at the instance of the perjury on an ' indictment defendant it was removed into the Queen's Bench by removed, certiorari, where he was tried, convicted, and sen- gtance, by tenced to be imprisoned. The false oath on which "ufj^'tP'' the perjury was assigned related to a claim of money the prose- alleged by the prosecutors to be owing from the de- ^ere"xecu- fendant to the estate of a deceased person, to whom tors of a they were executors; but the perjury was unsuccessful person, were and occasioned no actual damage to the prosecutors, costs under In Trinity term, a. d. 1852, Willes moved, in the 5&6 fVm. r, ., ^ n 1 1 1 . , , Sf M. c. U, Bail Court, tor a rule to shew cause why a side-bar "as persons rule to tax the costs of the prosecutors should not be fnju^ed"'^ rescinded ; contending that the statute 5 & 6 Wm. Sf M., although the It c , \ I'll. I .1 perjury occa- c. 11, s. 3 (a), applied only to cases where the prose- sionedthem cutor was in fact " grieved or injured," and that, as the j° actual o J ' ' damage, it false oath was ineffectual, and no injury was actually being suffi- sustained, the prosecutors were not entitled to costs, the case ""^ He cited Rex v. Ingleton, 1 Wils. 139. Ttlfrhlt^ WiGHTMAN J. — The case of Mex v. Ingleton does the perjury . 1 1 J iU X • • • might have not apply here, and the prosecutors are, m my opinion, caused them entitled to costs under the statute. If the perjurv is "JamaBe, and t^ •! J the false oath complete and 77iay have caused damage to the prose- ofthede- cutors, that is sufficient. The false affidavit of the having put defendant in the matters in Chancery, put a difficulty ? difficulty •' ' _ -^ m their way and obstruction in the way of the prosecutors which which they they were obliged to remove. The rule, therefore, peiied^"™' must be refused. remove. (a) As to the interpretation of c. 11; see Reg. V.Archibald Wil- this section of 5 & 6 Wm. Sf M. son, post, p. 79. 14 CROWN CASES RESERVED. 1852. Where on the removal of an indict- ment from Sessions, by certiorari, a recognizance is given by sureties to answer for the appear- ance of the party in- dicted, for his pleading thereto, and at his own proper costs and charges procuring the issue joined to be tried, giving due notice to the prose- cutor, and for his not departing, until dis- charged by the Court of Queen's Bench, such sureties are liable for the prosecutor's costs, in case of the con- viction of the party in dieted under 5 & 6 Wm. Sf M. c. 11, ss. 2 & 3. REGINA V. MILES HODGSON. The defendant was one of the sureties of one John Thornton, against whom an indictment for a certain misdemeanor had been preferred at the Quarter Ses- sions of the county of Westmorland, and at whose instance the indictment had been removed into the Queen's Bench by certiorari. The said John Thornton was convicted in due course of law, and the costs of the prosecutor under the provisions of 5 & 6 Wm. Sr M. c. 11, ss. 2, 3, having been taxed he failed to pay them ; whereupon an estreat was directed to the sheriff of the county of Westmorland, to inquire into the lands and tenements, &c., of certain persons men- tioned in the schedule of the document. The memorandum in the schedule respecting the defendant was as follows : — " Michaelmas Tevm, 13 Vict. 1849. Miles Hodgson, of Kirhy Lonsdale in the county of Westmorland, shoemaker, one of the sureties of John Thornton, because he did not pay to the prosecutor his costs, taxed according to the course of the said Court upon an indictment for certain misdemeanors whereof he was convicted, as by the course and practice of the said Court he ought to have done, but made default. Forty Pounds." The sheriff of Westmorland made a return that he had been served with a copy of an order made by Mr. Justice Talkourd, by which the defendant was allowed till the eighth day of the next term to appear and plead to the estreat {a). The defendant in his plea, craved oyer of the roll of (a) As to the course of practice and Recognizances," ed. by Chitty in pleading to an estreat, see 842: 2 Burn's Just. — " Fines, Forfeitures CROWN CASES RESERVED. 15 estreat, whereby it appeared that the above-named I85g. John Thornton was indebted to the Crown in the — Slim of eighty pounds, one Henry Robinson in the Case. sum of forty pounds, and Miles Hodgson, the de- fendant, in forty pounds, Thornton for not paying the costs of the prosecutor upon an indictment, upon which he had been convicted, and Robinson and Hodgson as his sureties for the payment of the same. The plea then protested against the validity of the estreat, but for plea nevertheless and for the dis- charge of the recognizance, pleaded setting out the recognizances, the conditions of which were " That if the said John Thornton shall appear in the Queen's Bench, at Westminster on the 22nd day of May, instant, in the next Trinity term, and shall plead to all and singular indictments of whatever misde- meanors whereof he stands indicted, and at his own proper costs and charges shall cause and procure the issue or issues that may be joined thereon to be tried in the same term, or at the next assizes to be holden after the same term in and for the county of West- moreland, if the said court shall not appoint any other time for the trial thereof, then at such other time, and shall give due notice of such trial to the prosecutor or his attorney, and shall appear from day to day in the said Court, and not depart until dis- charged by the said Court, then this recognizance to be void or else remain in full force." This recognizance appeared to have been taken be- fore John Tathem, Esq., one of the justices for the county, &c. The plea then stated that before the time of enter- ing into the said recognizance a bill of indictment had been found at the Quarter Sessions for the county of Westmoreland against the said John Thornton for the nonpayment of certain costs awarded against him by the sessions upon the trial 16 CROWN CASES RESERVED. 185^. of an appeal against the certificate of two justices of Hodgson's t^e peace for the stopping up and diverting part of a Case. public footway in the town of Kirkby Lonsdale, in which he the said John Thornton appeared as appel- lant ; — that the said indictment was removed by cer- tiorari; that Thornton appeared and pleaded not guilty to the said indictment, upon which plea issue was joined ; that Thornton, on the 6th day of August, at Appleby, in the said county of Westmoreland, had at his own proper costs and charges caused the said issue to be tried in due course of law at the Assizes then and there holden for the said county, the Court of Queen's Bench not having appointed any other time for the trial of the said issue ; and that the said John Thornton gave due notice of trial to the prose- cutors ; that upon the trial of the said issue the said John Thornton was found guilty, and that he did appear from day to day in the Queen's Bench, and did not depart therefrom until he was committed by the said Court to prison ; that he was adjudged by the said Court to imprisonment for two months ; that he underwent the said imprisonment, and was then discharged by the said Court of Queen's Bench with- out a day being given him to appear, and that no other judgment was ever given against him by the said Court. Replica'tion : That at the time of granting the said writ of certiorari, the said Court of Queen's Bench ordered that the said John Thornton should enter into a recognizance of eighty pound's, with two manucaptors or sureties, in forty pounds each, according to the sta- tute; that the said John Thornton, and Henry Robinson, and Miles Hodgson, as the manucaptors or sureties of the said John Thornton, did enter into the said re- cognizance mentioned in the said estreat ; that after the conviction, of the said John Thornton, the 'Court of Queen's Bench gave to the prosecutors of the said CROWN CASES RESERVED. 17 indictment, their costs, which amounted to 79/. 2s. ; 1852. that the allocatur of the coroner was served upon the Hodgson's said John Thornton, and the amount demanded of ^*s«- him J that the said John Thornton refused to pay the same; and that the said allocatur was afterwards served upon Henry Robinson and the defendant, the manucaptors or sureties of the said John Thornton ; that afterwards an attachment was issued against the said John Thornton for contempt, in nonpayment of the said amount, that he was attached, and that the said sum of 79Z. 2s. remained unpaid at the time of the said attachment and estreat. To this replication the defendant demurred. On the 8th June, a. d. 1852, the demurrer was argued in the Court of Exchequer before Pollock C. B., Alderson B., Platt B., and Martin B. Sir F. Thesiger (Attorney General), and Atherton Q. C, for the Crown. Pashley Q. C, and Henniker for the defendant. Pashley Q. C. called the attention of the Court to the condition of the recognizance entered into by the defendant as set out in his plea (a) ; which con- dition had been fully complied with. The defendant, as one of the manucaptors or sureties of Jo Ara Thornton, had entered into a contract with the Crown which was expressed in the condition of the recognizance, and that contract, he maintained, had been fulfilled. The defendant did not say that the recognizance ought to be discharged, but that he had done all that he had bound himself to do ; and that if the Crown intended to bind him to pay the prosecutor his costs, or to see them paid, that ought to have been expressed in the condition of the recognizance. The words of the third (a) See ante, p. 15. VOL. I. C 18 CROWN CASES RESERVED. 1852. section of the statute relating to the removal of indict- ~ T ments by certiorari, 5 & 6 Wm. k M. c. 11, it was Hodgson s •' ' i u u Case, true, said that the said recognizance should not be discharged till the costs so taxed were paid ; but the question before the Court was a question of con- tract, and no one could be bound beyond the terms of the contract into which he entered. A contract had been entered into between the Crown and the subject ; and that as expressed in the condition of the recogni- zance, had been performed by the defendant. But in the next place the recognizance itself was void; it appeared to have been taken before John Tathem . Esq., one of the justices "/or" the county oi Westmore- land, whereas in order to give a justice jurisdiction it should appear that he was a justice "in and for" the county. He cited Meg. v Stockton, 7 Q. B. 520 ; Meg. v. Lynch, 7 Irish Equity Rep. 263 ; Taylor v. Clemson, 11 CI. & Fin. 610; Day Y.King, 5 Ad. & E. 359; Reg.v. Toke, 8 Ad. & E. 227. Sir F. Thesiger (Attorney General). In effect th^ demurrer amounted to an application to discharge the defendant's recognizance. The form and condition of the recognizance are given by the stat. of Wm. & M., which has incorporated a condition into the recog- nizance, — a point which has been settled by numerous decisions. In the case Mex v. Teal, 13 East, 4> it was held, that where on the removing an indictment from the sessions by certiorari, a recognizance was given by two sureties in 20Z. each, under 5 & 6 Wm. k M. c. 1, ss. 2, 3, to secure the costs, such recognizance should not be discharged till all the costs were paid, though they exceeded AOL, Mex v. Finmore, 8 T. R. 409, and Meg. v. Byzant, 7 Dowl. 680, were also authorities to the same effect. The Attorney General was here stopped by the Court. CROWN CASES RESERVED. 19 Pollock C. B. — All the precedents are against the 1852. second point urged by the defendant's counsel, and Hodgson's the cases to which the Attorney General has called c^^^- our attention are conclusive as to the other. No dis- tinction can be drawn between the present case, and an application to discharge the recognizance. The Crown is therefore entitled to judgment. Alderson B. and Platt B. concurred. Martin B.— Regarding this as a question of a con- tract between the Crown and the defendant, but for the decisions cited by the Attorney General,! should have been disposed to have come to a different con- clusion ; but as it is we are bound by authority, and I agree that there must be judgment for the Crown. REGINA V. WILLIAM MITCHELL, WILLIAM 1852. JACKSON and SARAH BROWN. mitchell'i Case (a). (Note.) The course directedby Mr. Baron in the indictment, instead of the AiiDEBSON at the Liverpool Spring insertion of an averment of an as- assizes, a. d. 1852, on the trial of sault with intent to rob, in the these prisoners, to be pursued in count charging a robbery, framing indictments in cases of A count charging an assault with robberies under aggravated circum- intent to rob, was rarely in practice stances, seems to have been to some adopted in indictments for rob- extent misunderstood ; and from bery ; and it was ruled in R. v. an observation made by Mr. Justice Gough, 2 Moo. & M. 7l, that the Eble, when the case reserved was prosecutor might, in the discretion under the consideration of the of the Court, be put to his election Judges, it appears to have been sup- where the indictment contained a posed that his Lordship suggested count for each offence, the adoption of an additional count Mr. Baron Alderson in stating (a) See 2 Den. C. C. 468. C 2 %o CROWN CASES RESERVED. 1852. ^^ case, Reg.v.Mitchell,x&va.axkeA ___ " that the inconvenience antici- Mitchell's pated in that case might in future Case. be avoided, he had thought it ad- visable to direct a return to the old form of indictment, which as he was assured by the clerk of assize, formerly contained an express aver- ment of an assault with intent to rob." According to the old form of in- dictment used in Lancashire (but not, as I have ascertained by per- sonal inquiry at the Indictment Office in York, on other parts of the Northern Circuit, — a circum- stance that accounts for the diffi- culty which arose in B,eg. v. Reid andAckroj/d's case, 2 Den. C. C. 88), before the passing of 14 & 15 Vict. c. 100, an indictment for a robbery contained an averment first of an assault with intent to rob, and then a statement of an actual robbery ; and inasmuch as each by itself would have been & felony, it would, at common law, have been com- petent to the jury to convict of the part of the count charging an as- sault with intent to rob, that part being a felony, made a felony by 7 Wm. 4 & I Vict. c. 87, s. 6,— because wherever a statute makes an offence a felony, it incidents- ally gives to it all the proper- ties of a felony at common law. 1 Hawk. P. C. c. 38, s. 19; R. v. Gray, Stra. 481. In indictments for burglary the same count has always charged a breaking and entering with intent to steal, and then an actual stealing ; and the jury might acquit of the burglary, and convict of the larceny, or vice versa, I Hale P. C. 559. In the present case the indict- ment charged that the three pri- soners Mitchell, Jackson and Brown in and upon Thomas Tatem, to- gether did make an assault, and him in bodily fear and danger of his life then and there together fe- loniously did put, and certain money of the said Thomas Tatem from his person and against his will then and there together felo- niously and violently did steal. The actual robbery could not be proved ; but the jury found that the prisoners had together assaulted the prosecutor with intent to rob him. The question then arose, — as the count contained no averment of such aggravated assault with intent to rob, — had the Court the power to sentence the prisoners to transportation for life under 7 Wm. 4 & 1 Vict. c. 87. s. 3 ? No failure of justice took place in this instance, for the Judgesheld that under the stat. 14 & 15 Vict. c. 100,s. lljifa robbery under aggra- vated circumstances be charged in an indictment the jury may find an aggravated felonious assault with ' intent to rob : but if the old form in use at Liverpool containing an averment of an assault" with intent to rob had been retained, there would have been an averment of an assault by three persons together with intent to rob, as well as an averment of a robbery by three per- sons together, and the case would have been directly within the stat. 7 Wm. 4 & 1 Vict. c. 87, s. 3. It would seem therefore, as hav- ing regard both to the common law and the stat. 14 & 15 Vict. e. 100, s. 11, that the correct mode of drawing an indictment for robbery where the evidence points to a conviction for a felonious assault, is to insert an averment for an as- sault with intent to rob, though after the decision of the Judges in this case {Regina v. Mitchell, 2 Den. C. C. 468), its omission would be held to be cured by the act of Parliament. CROWN CASES RESERVED. 21 REGINA V. MICHAEL MANNING AND JOHN 1852. SMITH. Michael Manning and John Smith were tried A had the before R. B. Armstrong Esq., Recorder of Man- jSfcu^or's" Chester, at the Manchester Borough Sessions, on the warehouse in 5th of August, 1852, for stealing on the 17th of July, were kept; twenty-four bags, the property of John Sheridan. year°"ad^ The prosecutor was a potatoe dealer, and used bags heen in the in that trade, and he also dealt largely in bags, which supplying he bought and sold. The prisoner ilfanmra^f had been tor^i°rbagg for several 3'ears in the prosecutor's service, and had which were the care of his warehouse, in which the bags were placed out- kept. The prisoner Smith had for five years regu- ^frehouse larly supplied the prosecutor with bags which he and shortly made, and from time to time, when he had finished a ingthem, lot, his custom was to take them and put them down f^^^^^.p- °^ ' r _ his wife at the warehouse door of the prosecutor, outside the called and warehouse, and very shortly after any bags had been mentfor so left by him, either he or his wife, but generally his ti^^™-. -^• •' ' o J went into his wife, used to come and receive payment for them from master's the prosecutor. On the night of the 16th of July, anire^^^' the prosecutor had a quantity of bags in his warehouse moved twen- marked. On the morning of the 17th of July, pri- bags which soner Manning went into his master's warehouse and nfarke^dby brought out twenty-four of the bags which had been his master. ° "' ° and placed them outside the warehouse, in the place where B. used to deposit his bags before payment for them. Soon afterwards the wife of B. came and claimed payment for the said twenty-four bags. The prosecutor then sent for the prisoner B. who upon being asked respecting the bags, said that they had been placed there an hour previously by him, and de- manded payment for them. The jury found that the bags had been so removed in pursuance of a previous arrangement between A. and B. Held, that A. was rightly convicted of larceny, and that B. was an accessory before the fact. 22 CROWN CASES RESERVED. 1852. so marked by his master on the previous night, and Manning's P"* ^^^^ ^^"^''^ outside the warehouse, by the door, at ^ase. the place where Smith used to deposit the bags he brought for the prosecutor, and for which he had to be paid. Shortly after Manning had brought the pro- secutor's bags out of his warehouse, and so placed them at the door, Smith's wife came and asked payment for them as for bags that her husband had brought there that morning. Upon this Smith was sent for, and was told what his wife had said, and the bags which were then lying where Manning had placed them were pointed out to him, and he was asked whether he had brought those bags there ; he said yes, had brought them there an hour before, and that he and his wife had been working at them till twelve o'clock the night before, in order to finish them. " Nay," said the pro- secutor, " those bags are mine." " Yes," replied Smith, " they will be yours when you have paid for them." Upon this the prosecutor pointed to the two prisoners (il/aranm^ being then also present) the marks that had been put upon the bags the night before, when they both turned the colour of this (holding up a piece of red blotting paper) and they were given into custody. The learned Recorder told the jury that if they were satisfied that Manning brought his master's bags out of the warehouse, and placed them outside by the door in the manner stated, for the purpose of enabling Smith to receive payment for them from his master, and with the intent that he should do so as if they had been new bags just then finished by Smith, and for which he would be entitled to be paid, that that would be a larceny ; and that if they were satisfied that this had been so done by Manning jn pursuance of previous concert and arrangement between him and Smith, that Smith, though absent when the bags were so removed out of the warehouse, would be an acces- CROWN CASES RESERVED. 23 sory before the fact to the felony. The jury said they 1852. were satisfied that the bags had been so removed out Manning's of the warehouse by Manning for the purpose and ^^^®- with the intent aforesaid, and that the same had been done in pursuance of a previous arrangement between him and Smith, and they found both the prisoners guilty. The prisoners were sentenced to be severally impri- soned in the Borough gaol, and to be there kept to hard labour for six months. The 'question for the opinion of the Court was, whether the facts stated and found amounted to larceny. On the 13th November, a. d. 1852, this case was considered by Jervis C J., Coleridge J., Alderson B., Cresswell J., and Platt B. Cross for the Crown (a), cited Reg. v. Hall, 1 Den C. C. 381, in which the Judges held that where A. took ^.'s goods wrongfully, and offered them for sale to B. as the goods of another, he was held guilty of larceny. Jervis C. J.— This case is clear ; the direction of the Recorder was quite right, and both the prisoners have been properly convicted. The case of Reg. v. Hall, 1 Den. C. C. 381, is expressly in point. Alderson B. — ^There is no doubt that the prisoner Manning has been properly convicted of larceny ; and Smith, though not present when the sacks were re- moved, was an accessory before the fact. (a) No counsel appeared for the prisoner. 24 CROWN CASES RESERVED. 185^- REGINA V. THOMAS HENSON. To bring a ^jj indictment chaming the defendant with a mis- horse infect- a o • r • • ed with the demeanor at Common Law (a) in bringing a apubHc'piace glandered mare into a public place, was found on the to the dan. 28th June, a.d. 1852, at the Quarter Sessions for the ger of in- ' ' i • u rv ' fecting the county of Leicester. It was removed into the yueen s ftsTs'aSl Bench, by certiorari, and came on for trial at the demeanor at Leicestershire Summer assizes, 21st July, a.d. 1852, and Held, ' before Mr. Justice Coleridge. The indictment con- d^ctmrn"" Gained three counts which were as follows : — which stated 1st count. The jurors for our lady the Queen fendantknew present that Jamcs Henson late of Melton Mowbray whkhhe" in the county of Leicester labourer on the first day brought into of June in the 15th year of the reign of our said glandered, lady the Queen at Melton Mowbray aforesaid in the vMdicf^'ood ^^"'^^y aforesaid was possessed of a certain mare without an which said mare was then and there infected with a that the de- contagious iufcctious and dangerous disease called the th"t A*''"*'^ ^'krarfers, and the said James Henson well knowing glanders was the premises afterwards and whilst the said mare was commmica- ^0 infected as aforesaid on the day and year afore- ble to man. gaid with force and arms at Melton Mowbray afore- said in the county aforesaid unlawfully wilfully wickedly and injuriously did bring and cause to be brought the said mare so infected as aforesaid into and along a certain open public way and place on which then of right were divers liege subjects of our said lady the Queen then going passing and staying and amidst and among divers liege subjects of our said lady the Queen who were then and there in the (a) See 2 Chit. Crim. L. 553, Com. 161 ; 4 M. & S. 73, 272 ; 4 654; 3 Burn's Just. "Horse;" Went. 213; Com. Dig. Lect. 12 Wms, I.. Diet. " Horse ;" 4 Bla. (L). CROWN CASES RESERVED. 25 said public way and place to the great danger of 1852. infecting with the said contagious infectious and henson's dangerous disease called the glanders the liege sub- Case. jects of our said lady the Queen who on the said day and time were in and near the said public way and place to the damage and common nuisance of all the said liege subjects of our said lady the Queen to the evil example of all others in the like case oflPending 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 afterwards to wit on the day and year aforesaid at Melton Mowbray aforesaid in the county aforesaid the said James Hanson was possessed of a certain other mare which said last mentioned mare was then and there infected with a contagious infectious and dangerous disease to wit a disease called the glanders and that the said James Henson well knowing the premises last afore- said and whilst the said last-mentioned mare was so infected as aforesaid on the day and year aforesaid with force and arms at Melton Mowbray aforesaid in the county aforesaid unlawfully wickedly wilfully and injuriously did bring and cause to be brought the said last mentioned mare so infected as aforesaid into a certain fair called the Melton Mowbray Whitsun Fair during the period when the liege subjects of our said lady the Queen were then and there holding the said fair which was then and there public and open to all the liege subjects of our said lady the Queen for the purpose of buying and selling horses and other cattle therein and that the said James Henson well knowing the premises as last aforesaid then and there kept and continued to keep the said mare so infected as aforesaid for a long space of time to wit for the space of one hour then next following and in which said fair then of right were divers horses and 26 CROWN CASES RESERVED. 1852. other cattle of certain liege subjects of our said lady ~ — the Queen then and there passing and being by Henson's • J • Case. means of which said several last mentioned premises the said last mentioned horses and other cattle so passing and being along and in the said fair became and were liable to be infected (a) by the contagious infectious and dangerous disease with which the said mare of the said James Henson was so infected as aforesaid to the damage and common nuisance of the liege subjects of our said lady the Queen frequenting the said fair and using the same for the purpose of buying and selling horses and other cattle therein to the evil example of all others in the like case offend- ing and against the peace of our said lady the Queen her Crown and dignity. 3rd count. And the jurors aforesaid upon their oath aforesaid do further present that afterwards to wit on the day and year aforesaid at Melton Mowbray aforesaid in the county aforesaid the said James Henson was possessed of a certain other mare which last men- tioned mare was then and there infected with a con- tagious infectious and dangerous disease to wit a disease called the glanders and that the said James Henson well knowing the last mentioned premises afterwards and whilst the said last mentioned mare was so infected as aforesaid on the day and year afore- said with force and arms at Melton Mowhray aforesaid in the county aforesaid unlawfully and injuriously did bring and cause to be brought the said last mentioned mare so infected as aforesaid into a certain open and public way and place called the Burton End in Mel- ton Mowhray aforesaid in which public way and place (a) It is enacted by stat. 32 10s.; which offence shall be in Hen. 8, c. 13, s. 9- No person quirable in the leet as other com- shall have or put to pasture any mon annoyances be, and the for. horse, gelding, or mare infected feitures shall be to the lord of the with scab or mange, in any com- leet. mon or common fields on pain of CROWN CASES RESERVED. 27 there were divers others horses and other cattle of 1852. certain liege subjects of our said lady the Queen then hknson's and there passing and being and that the said James Case. Henson well knowing the premises aforesaid then and there kept and continued the said mare of which the said James Henson was -so possessed as last aforesaid and which was then and there so infected as aforesaid for a long space of time to wit for the space of one hour then next following during all which time there were divers other horses and other cattle of certain liege subjects of our said lady the Queen then and there passing and being by means of which said several last mentioned premises the said horses and other cattle so passing and being along and in the said open public way and place became and were liable to be infected by the contagious infectious and dangerous disease with which the said mare of the said James Henson was so infected as aforesaid to the damage and common nuisance of the liege subjects of our said lady the Queen then having horses and other cattle in the said open and public way and place to the evil example of all others in the like case offending and against the peace of our said lady the Queen her Crown and dignity. Plea : not guilty. The jury found a verdict for the Crown. On the 3rd November, a.d. 1852, Miller, 'S)er]i., for the defendant, moved in the Queen's Bench Defore Lord Campbell C. J., Coleridge J., Wightman J., and Erle J., to arrest the judgment. He contended that the first count was bad inasmuch as it contained no averment that the defendant knew that the glanders was a disease that was infectious so as to be com- municable to man ; and in order to make the act charged in the indictment an indictable offence at common law, it was necessary that a scienter should be 28 CROWN CASES RESERVED. 185g. stated (a). Unless it were proved the verdict would be Henson's wrong, and being necessary to be proved, there ought ^^'*- to have been a corresponding allegation in the indict- ment. Lord Campbell C. J.— This indictment contains an allegation that he knew the mare to be glandered ; that is enough. Miller Serjt. The defendant might have known that the glanders was communicable from one horse to another without contact; but that the disease was communicable from a horse to a man (V) he might not have known ; and as a matter of fact he did not know it. Coleridge J. — In the case o^ Rex v. Vantandillo 4 M. & S. 73, which was an indictment for exposing a child infected with the small-pox in the public streets, the indictment contained no averment that the defendant knew that the disease was infections ; yet the Judge in passing sentence said, " there can be no doubt that if a person unlawfully, injuriously, and with a full knowledge of the fact, exposes in a public highway a person infected with a contagious disorder, it is a common nuisance to all subjects, and indictable as such." Miller Serjt. The law as laid down by the learned Judge in that case is not questioned; he said, where "the defendant with a full knowledge of the fact;" — that must be of the existence of the disorder and of its infectious nature. Lord Campbell C. J. — Suppose the case were one of exposing a person infected with the small-pox to the (a) See 2 Chitty's Crim. L. 553,, there appears to be no doubt that note. it is so. In the public journals, (6) In the description of the February 5, 1853, there is an ac- glanders as a disease most fatal count of the destruction of a whole to horses, in the Cycloptedia of the family, consisting of a man, his Society of Useful Kmwhdge, tit. wife, and four children, by glanders " Horse," there is no suggestion communicated to them by a horse that the glanders is a disease com- which the man had purchased from municable from horses to man ; but a horse-dealer. CROWN CASES RESERVED. 29 danger of the Queen's liege subjects, would you say 1852. that an allegation that the defendant knew that the ~^^i^^^^^ small-pox was an infectious disease would be necessary ? Case. Miller Serjt. That would be a different case. In the case of snaall-pox there would be a human being actually suffering, and experience, familiar to all the world, that other human beings would be in danger of infection. Coleridge J. — The indictment states he "was pos- sessed of a certain mare, which said mare was then and there infected with a contagious, infectious, and dangerous disease, called the glanders, and that he well knowing the premises, afterwards and whilst the said mare was so infected, unlawfully, wilfully, wickedly, and in- juriously did bring, and cause to be brought, the said mare so infected as aforesaid, into and along a certain open public way and place ;" therefore he knew not only that the horse was glandered but that the glanders was a contagious disease. Miller Serjt. That may be sufficient to shew that he knew the disease was communicable from one horse to another ; but it does not imply any knowledge that it was a disease communicable from horses to men. Nor is it alleged that it was. Coleridge J. — But the indictment goes on to state that he brought the mare into a public place "amidst and among divers liege subjects of our said lady the Queen, who were then and there in the said public way and place, to the great danger of infecting with the said contagious, infectious, and dangerous disease, called the glanders, the said liege subjects." Surely that, after verdict, is sufficient. White, for the Crown, was not called upon. Lord Campbell C. J. — The Court is of opinion that the count is abundantly good, and the motion to arrest the judgment (a) must be refused. (a) The Court then sentenced and to be imprisoned in the Queen's the defendant to pay a fine of lOi. prison till the same was paid. 30 CROWN CASES RESERVED. 1852. REGINA V. CHARLES PROBERT, WILLIAM HAMP, AND WILLIAM WATKINS. Where one An indictment was found at the Central Criminal fendantfob^-" ^0"'"^ charging the defendants with a conspiracy to tained a cer- defraud the prosecutrix, Mary Ann Broom, of her the removal monies, by keeping certain witnesses out of the way at menUnto"^'" *^® ^''^^^ ^^ ''^^ indictment, arising out of a charge of the Queen's cheating at cards at Brighton, made against one John Bench, and t, i . i & procedendo Broovfi and others. was moved rpj^g defendant, the Reverend Charles Prolert, a clerk for on the ' ground that in holy orders, applied to Mr. Justice Crompton, at ihe certiorari i , p •,. p ±- -^ .^u-j-^ improvide chambers, tor a writ or cerfzoran to remove the mdict- emanavit.in- ment iuto the Qucen's Bench, where he was anxious asmuch as _ the other de- the trial should take place, and the learned Judge fendants had i. j ii. i* x- not joined in granted the application. the api^lica- tion for the ^-w i i -at i writ, and On the 5th November, A. d. 1852, a rule nisi was under°5'&6 obtained in the Bail Court from Crompton J., calling Wm.SfM. on the defendants to shew cause why the writ of cer- c> 1 1 6nt6rc(i into recogni- tiorari which had issued should not be quashed, and thecoltroT'^ why a writ oi procedendo to remove the indictment theprosecu- back again to the Central Criminal Court, on the tnx in case ... . , • i i , . of their con- ground quia improvide emanavit should not issue. HeMTthat Against which rule cause was shewn on the 19th the defend- November. appUcatior^ Parry and Metcalf for the Crown. Wilkins Serjt. the certiorari ^ HuddUston for the defendants. was granted, _^ (being a per- Wilkms Serjt. The affidavit on which the certiorari son to whose responsibility there appeared no objection), might enter into recognizances to pay costs in case of the conviction of himself or of the other defendants, or either of them, and that under thes e circumstances the procedendo Would not be ordered. CROWN CASES RESERVED. 31 was obtained was amply sufficient, and was uncontra- 1853. dieted. It was a case in which difficult points of probbrt's law were likely to arise, and in which it was desirable Case. to have the power of summoning a special jury. With respect to the objection that the application had not been made on the part of all the defendants, there were now affidavits shewing that they all concurred in the application for the certiorari Parry. No ground was laid for the application for the certiorari. There was no pretence for saying that a fair trial could not be had at the Central Criminal Court, where it could be taken before Judges of the superior Courts. The fact that the defendant Probert was a clergyman made no difference, and the sug- gestion in his affidavit that it would be prejudicial to his character as a clergyman to stand at the bar of the Old Bailey could be no reason for granting the writ. It was not shewn what the difficult points of law were which were likely to arise. Beside the other two de- fendants were not parties to the application, and were not under recognizances to pay the costs of the prose- cutrix in case of their conviction ; and in that case if the certiorari were allowed to stand, and the defendantPro- hert were acquitted, the prosecutrix would have to bear the increased expense of a trial in the Queen's Bench, although the two other defendants might be convicted. Crompton J. — Perhaps I acted rather hastily at chambers in granting the certiorari on the application of one of the defendants. All the defendants should, I think, enter into recognizances. Parry. The prosecutrix has no confidence in the recognizances of any of the parties but Mr. Probert. Wilkins Serjt. said that he was ready to consent that Mr. Probert should enter into recognizances for the other two defendants for the payment of the costs of the prosecutrix, under the statute of Wm. & M., in case of their conviction. 32 CROWN CASES RESERVED. 1852. Probebt's Case. Crompton J. said that he thought that would, under the circumstances, be the proper course, and the counsel for the Crown assenting, the dekndantProbert entered into recognizances to pay the costs of the prosecutrix in case of the conviction of himself, or of both or either of the other two defendants (a). (o) Huddleston than moved, on the part of the defendants, for a rule, calling on the prosecutrix to shew cause why she should not be compelled to give the particulars of the charges intended to he relied on in the general counts of the indict- ment. One set of counts set out the alleged conspiracy with parti- cularity, but there were also general counts simply laying a conspiracy to cheat and defraud the prose- cutrix of her money by divers crafty and subtle means. Crompton J. — Have you an affidavit stating that you do not know on what the prosecution in- tend to rely ? Huddleston. Such an affidavit has never been held to be neces- sary. In the case of Reg. v. Alleyne and others, Q. B. Mich. 1851, there was an indictment for conspiracy. in which there were nine counts. Eight of them set out particular charges, and the ninth count set out, in general terms, a conspiracy to defraud by divers subtle means and contrivances, and the court upon argument held that the de- fendants were entitled to have par- ticulars of the specific charges in- tended to be relied on in support of the general count. He cited Reg. v. Curwood, 3 A. & E. 815; Rex v. Hodson, 3 C. & P. 422, and Reg. V. Hamilton and others, 7 C. & P. 448 ; kin neither of which cases was any affidavit used. Rule nisi. This rule was afterwards dis- charged upon an undertaking on the part of the prosecution to con- fine themselves to the charges stated in the special counts. 1852. In order to REGINA V. WILLIAM POVEY. establish the ^^ ^ general session of gaol delivery, holden for the factof amar- jurisdiction of the Central Criminal Court, on Mon- riage in Scot- land, it is necessary that some witness conversant with tlio lanr r-f c— *? j riage should be called, . And where a woman prl^at fmSage tfetly\nTc": land, performed m a private house, by a m nister of a couffreffatinn wTi; fV^ * of the Kirk she did not know-stated that she herself had SmarrTed^n 7b. «« °' " that parties always married in Scotland in private l^ouLs andThat the ° rH« ft ""^1 ' ceremony had lived together as man and wife: HeM, that her ev^LnL wis insfffi-*^^ to prove the law of marriage in Scotland, or to establik a marriage Si fa^t insufficient CROWN CASES RESERVED 33 day, the 25th day of November, 1852, William Povey 1852. was tried before the Common Serjeant, JBdwavd povey's Bullock, Esq., on an indictment charging him with ^=»^^- having at the parish of St.Cuthbert, Edinborovgh, in that part of Great Britain, called Scotland, feloniously married one Isabella Graham, during the life of Jane, his wife. To prove the marriage in Scotland, a witness was called, who stated that she (being the sister of Isabella Graham, above named), was present at a ceremony performed by a minister of a congregation, but whether of the Kirk she did not know, in the private house of the witness in Edinborough, that the witness herself was married in the same way, and that parties always married in Scotland in private houses. That the pri- soner and her sister lived together in the witness's house as man and wife, for a few days after the cere- mony, and then left for England. It was contended, on behalf of the prisoner, that better evidence of the validity of the second marriage, according to the law of Scotland, should have been given ; and that some person, sufficiently conversant with that law, should have been called to prove that it was a legal and valid marriage. The Common Ser- jeant, however, left it to the jury to find the prisoner guilty, if they would presume from the facts proved, a marriage valid by the law of Scotland. The jury found him guilty. It appearing to the learned Judge, however, that the point raised on the trial was one of doubt, and entitled to consideration : he post- poned judgment and committed the prisoner to the custody of the keeper to the gaol of Newgate, until the next sessions, in order that the opinion of the Judges might be taken: — Whether the evidence given was sufficient to justify the finding of the jury or whether some witness, conversant with the law of Scotland, should have been called to say whether the 34 CROWN CASES RESERVED. 1852. facts proved constituted a valid marriage according PovEY's to that law ? Case. On the 13th December, a.d. 1852, this case was argued before Jervis C. J., Coleridge J., Alderson B., Cresswell J., and Platt B. Robinson, for the Crown. Parry, for the prisoner. Parry. In the first place, it was necessary in cases of alleged bigamy to prove an actual marriage ; and then in the case of a marriage celebrated in a foreign country, some witness, or witnesses should be called, who were conversant with the law of that country, to shew that the marriage so celebrated was a valid marriage. In Morris v. Miller, 4 Burr. 2d'S7, it was expressly held that a marriage in fact must be proved, though in civil cases, for many pur- poses, the fact that parties lived together as man and wife may be considered to amount to sufficient prima facie evidence of marriage. But here conceding that the witnesses spoke to certain facts that might be presumed to belong to the ceremony of marriage, she not being skilled in the law of Scotland, — and for the purposes of this argument Scotland was a foreign country, — was unable to give any evidence as to whether the facts she spoke to as having taken place, amounted to a valid and legal marriage. The facts having been brought before the Court, a witness conversant with the law of Scotland, whether professionally or otherwise, should have been ex- amined in order to shew whether these facts consti- tuted a marriage, Dalrymple v. Dalrymple, 2 Hagg. Con. 54. The Sussex Peerage case, 11 CI. & Fin. 85. (He was then stopped by the Court). Robinson. No professional expert was required to prove the requisites of a valid marriage ; and the iury were justified from the evidence given in the case to infer that an actual marriage had taken place There CROWN CASES RESERVED. 35 was the ceremony, or at least what the parties them- 1852. selves represented to be the ceremony, of marriage, ~p^^^^ and that was followed by cohabitation. Besides the ^»5«- conduct of the prisoner was a fit subject for the con- sideration of the jury. The Court of Common Pleas, in the case of Vanderdonckt v. Thellusson, 19 L. J., C. B. 12, decided that any person conversant with foreign law is a competent witness (a). There a person, who was a hotel-keeper in London, but had formerly been a merchant and stockbroker in Brussels, and who stated that he was acquainted with the law of Belgium concerning promissory notes and bills of exchange, was allowed to give evidence to prove that by the law of Belgium it was unnecessary to present a promissory note at the place where it was made pay- able in the body of the note. That case unques- tionably shews that a professional person, or expert, is not the only witness that may be called to give evi- dence upon questions of foreign law. Practical know- ledge was all that was necessary to give competency ; and that the witness in this case possessed, as it appears that she stated all marriages in Scotland to be celebrated in private houses, and that the ceremony of her own marriage was exactly similar to that of the alleged second marriage of the prisoner. W The case referred to by the of his business conversant. Cress- learned counsel seems to fall within -well J., distinguished the case the principle, that if the question from the rule in the Sussex Peerage of law relates to a foreign custom or case : and Maule J., in giving mage, any witness will be admis- judgment said, the question is sible acquainted with the fact, whether he was a person whose rather than to contravene the rule business it had heen, and who had laid down by the House of Lords made it his business to attend to on the universal opinion of the matters of that sort on which his Judges in the Sussex Peer. Ca. 11 evidence was offered. CI. & Fin. 134. Lush,who argued And see the opinions of PoL- in favour of the admission of the lock C. B., Aldekson B., Rolfe evidence, put the case as one of B., and^PLATT B., in the later case commercial custom with which the of Bristow v. Sequeville, 5 Ex. witness, as a merchant and stock- Rep. 275. broker at Brussels,waa in the course 36 CROWN CASES RESERVED. 1852. Jervis C. J.— Perhaps as to the degree of know- Povey's ledge of the law required to render a witness com- ^^'"=- petent, that may depend upon the circumstances of the particular case. CoLEniDGE J The witness does not state that she is in any way acquainted with the law of Scotland, or able to say what that law is upon the subject of marriage, and the mode in which the question is put to us, namely, whether some one conversant with that law ought not to have been called, assumes that. Robinson. The prisoner in representing himself by his conduct as a married man, and in representing the ceremony as a marriage, afforded sufficient evi- dence to justify the jury in coming to the conclusion they did ; Reg. v. Shnmonsto, 1 C. & K. 164. The declaration of the prisoner there that he had been married to his first wife in New York, was considered proof of that marriage ; here the prisoner's conduct in cohabiting with the woman after the ceremony, amounted in fact to the same thing. Jervis C. J. — The question reserved for the con- sideration of the Court is, whether the evidence given at the trial was sufficient to justify the finding of the jury, arid whether some witnesses conversant with the law of Scotland should not have been called by the prosecution to say whether the facts given in evidence constituted a valid marriage according to the law of that country. That question does not raise the point as to who is admissible as peritus, a point that' may be considered settled by the Sussex Peerage case (a), or what kind the witnesses called should be. There may be certain cases, perhaps, in which it may not be necessary to have a lawyer to give evidence • but the Court is clearly of opinion that some witness Co) Namely, that a person not the law of a foreign Country ; over- peritus virtute officii or virtnte pro- ruling Reg, v. Dent, I Car. & Kir. fessionis, is inadmissible to prove 97. CROWN CASES RESERVED. 37 conversant with the Scottish law of marriage should igsg. have been called on the part of the Crown. With ";; — * PovEy s regard to the case before us what the witness who was Case. called sa3's — even supposing her a competent witness in such a matter, — does not amount to any proof of a marriage in fact. Coleridge J., Alderson B., Cresswell J., and Platt B., concurred. 1852. REGINA V. HENRY DALE. At the General Quarter Sessions of the peace of '^^f defend- ^^ _ _ r ant was m- our Lady the Queen held at Alnwick in the county of dieted for a Northumberland on the twentieth day of October in in having the sixteenth year of the reign of our Sovereign lady contempt"- Victoria of the United Kingdom of Great Britain unlawfully and Ireland Queen Defender of the Faith and in the "nd refused year of our Lord 1852 before her Majesty's justices of to pay over J •'•'•' to the trea- the peace assigned to keep the peace ot the said surer of the county, the following case was agreed upon (that is to on""m^iety " ggy'^ of a fine im- , o- •!• posed under At the last Miasummer Quarter Sessions, an indict- the Alehouse ment, of which the following is a copy of the first ^^^^ \^Xy count, and an extract from the second, was found by certain jus- 11. 1 1 Ml *"^^^ of the the grand jury, to be a true bill, — borough of " Northumberland (to wit) The jurors for our ^jjiehta lady the Queen upon their oaths present that hereto- commission . 1 • IIP -H/r • 1 0' '"C peace, fore to Wit on the nineteenth day ot May in the but no grant year of our Lord 1851 in the borough of Tynemouth ^^„'Xlls- in the county of JS orthumberland one Joseph Gibbon sions, within was convicted hehve Alexander Bartleman and Solo- c. 76, and was mon Mease Esquires then and there being two of her ^^i^f^^^^'' the defend- ant was properly convicted, as penalties under the Alehouse Act, imposed by the justices of a borough so circumstanced, are payable to the treasurer of the county, and not to the treasurer of the borough on account of the borough fund. 33 CROWN CASES RESERVED. 1852. Majesty's justices assigned to keep the peace in and throughout the said borough in the said county for Ca^se. that he the said Joseph Gibbon on the thirteenth day of May in the year of our Lord 1851 at the township of North Shields in the said borough oiTynemouth he the said Joseph Gibbon being then and there an ale- housekeeper and duly licensed to sell exciseable liquors by retail in his house and premises there situate did wilfully permit disorderly conduct in his house and premises by then and there suffering persons to the number of twenty and more to remain fighting drink- ing and making a great noise and disturbance there at a late hour in the night to wit at twelve o'clock at night against the tenor of his said license and con- trary to the form of the statute in such case made and provided And the said Alexander Bartleman and , Solomon Mease in and by the said conviction then and there adjudged the said Joseph Gibbon for his said offence to forfeit and pay the sum of two pounds ten shillings to be paid and applied according to law and also to pay to Robert Mitchell, the complainant the sum of ten shillings for his costs in that behalf And the said Alexander Bartleman and Solomon Mease did by the said conviction then and there order that if the said several sums were not paid forthwith the same should be levied by distress and sale of the goods and chattels of the said Joseph Gibbon and in default of sufficient dis- tress the said Alexander Bartleman and Solomon Mease did by the said conviction then and there adjudge the said Joseph Gibbon to be imprisoned in tlie house of correction at Morpeth in the said county of Northumberland there to be kept to hard labour for the space of one calendar month unless the said several sums and all costs and charges of the said distress and of the commitment and conveying of the said Joseph Gibbon to the said house of cor- CROWN CASES RESERVED. 39 rection were sooner paid And the jurors aforesaid 1852. upon their oath aforesaid do further present that the j^ '^^ same Alexander Bartleman and Solomon Mease did at Case, the time of making the said conviction award one moiety of the said penalty to the use of the said Robert Mitchell the said complainant and the prose- cutor of the said Joseph Gibbon for the said offence And the jurors aforesaid upon their oath aforesaid do further present that the said Joseph Gibbon did there- upon afterwards to wit on the day and year first aforesaid pay the said sum of two pounds ten shillings to one Henry Dale late of the borough aforesaid in the county aforesaid gentleman and who then was and still is clerk of her Majesty's said justices assigned to keep the peace of our said lady the Queen in for and throughout the said borough and the said sura of two pounds ten shillings was so paid to the said Henry Dale and he then received the same as such clerk as aforesaid and for the purpose and in order that it should forthwith be paid by him to the parties to whom the same was to be paid in pursuance of and according to the said conviction and the statutes in such case made and provided to wit one moiety to the said Robert Mitchell as such prose- cutor as aforesaid and the remainder to the treasurer of the said, county And the jurors aforesaid on their oath aforesaid do further present that the justices of our said lady the Queen assigned to keep the peace of our said lady the Queen in and throughout the said borough were at the time of making of the said con- viction and thence hitherto have been acting and empowered to act within the said borough by and under a commission of the peace from our lady the Queen (a) which said commission did not nor does (a) The commission from the United Kingdom of Qreat Britain Crown was as follows ; — Victoria, and Ireland, Queen, Defender of by the grace of God, of the the Faith. To our well beloved 40 1852. Dai^e's Case. CROWN CASES RESERVED. contain any grant of a Court of Quarter Sessions of the peace for the said borough and our said lady the Queen had not then or at any time since granted that a separate Court of Quarter Sessions of the peace should be holden in and for the said borough nor were there then or at any other time any separate General or Quarter Sessions of the peace holden in or for the same And the jurors aforesaid on their oath aforesaid do further present that after the said sum of two pounds ten shillings was so paid to the said Henry Dale as aforesaid it became and was his duty to pay one moiety of the said sum of two pounds ten shillings to one William Fenwich Blackett Esquire who at the time of the making of the said and faithful the Mayor of our borough of Tynemouth, and the Mayor of our. said borough for the time being, William Linslell Esquire, Robert Pow, chain manu- facturer, Solomon Mease, ship- owner,^ Zea;flnrferBarifeman,brewer, John Coppen,Esq\nre, MaiJiew Pop- plewell, surveyor of shipping, John Dale, shipowner, Thomas Barker, ship builder, Joseph Shaker, coal owner, John, Dryden, shipowner, Emanuel Young, ship builder, and Michael Spencer, tobacco manu- facturer. Greeting — Know ye that we have assigned you and every of you jointly and severally our justices to keep our peace in and throughout our bo- rough of Tynemouth and to keep and cause to be kept ordinances and statutes made for the good of our peace and for the conservation of the same, and for the quiet rule and government of our people in all and every the articles thereof in the said borough according to the form and effect of the same, and to chastise and punish all persons that, offend against the form of those ordinances and statutes, and to cause to come before you, or any one of you all those who to any one or more of our people concerning their bodies or the firing of their houses have used threats to find sufficient security for the peace, or their good beha- viour towards us and our people, and if they shall refuse to find such security then thera in our prisons until they shall find such 1 security to cause to be safely kept. And therefore we command you that you diligently apply your- selves to the keeping our peace ordinances and statutes, and all and singular other premises and purposes and fulfil the same in form aforesaid doing therein what to justice appertaineth according to the laws and customs of Bng- land. In witness whereof we have caused these our letters to be made patent. Witness ourself at Westminster the twenty-sixth day of March, in the thirteenth year of our reign. Pepys. CROWN CASES RESERVED. 41 conviction was and from thence hitherto hath been 1852. and still is treasurer of the said county of Northum- 7 7 7,., Dale's berland according to law and to the statutes in that Case, case made and provided And the jurors aforesaid upon their oath aforesaid do further present that the said Henry Dale well knowing the premises although a reasonable time for his paying the said moiety of the said sum of two pounds ten shillings to the said treasurer had elapsed long before the day of taking of this inquisition and although the said treasurer hath at all times been ready and willing to receive and give him a receipt for the same hath yet hitherto un- lawfully and contemptuously neglected and refused to pay and still neglects and refuses to pay the said moiety of the said sum of two pounds ten shillings or any part thereof to the said treasurer and he wrong- fully and unlawfully detains the same and every part thereof from him contrary to his duty in that behalf against the form of the statutes in that case made and provided and against the peace of our lady the Queen her Crown and dignity." There was a second count in the indictment the same as the first word for word, with this addition, "And the jurors aforesaid upon their oath aforesaid do further present that the said Alexander Bartleman and Solomon Mease in the making of the said con- viction acted as such justices aforesaid for the said county." The usual process for that purpose having been issued, the defendant entered into a recognizance to appear at the next Quarter Sessions to try and answer the said indictment. At the Michaelmas Quarter Sessions held 20th October, 1852, the said indictment was tried, and the jury found the defendant guilty. Whether the defendant is guilty or not guilty de- 42 CROWN CASES RESERVED. 1852. pends upon the construction which may be put upon "75XZ^" the public acts of Parliament relating to this question, Case. and which formed part of this case. The 26th section of 9 Geo. 4, c. 61 (the Alehouse Act), enacts, " That it shall be lawful for any justice before whom any penalty shall be recovered under the provisions of this act, to award, if he shall think fit, any portion of the same not in any case exceeding one moiety thereof to the use of the prosecutor, and the remainder to the treasurer of the county or place for which such justice shall then act, and the said trea- surer shall place the same to the credit of such county or place, and shall duly account for the same." By section 33 of the Alehouse License Act, it is enacted, "That every justice Ijefore whom any such conviction shall have been made shall return the same, or cause it to be returned to the General or Quarter Sessions of the peace holden for the county or place wherein the offence shall have been committed, and it shall then and there be delivered to the clerk of the peace, or other person acting as such, to be by him filed or enrolled amongst the records of the said Court, and the certifi- cate of the clerk of the peace of such conviction, which he is hereby required to grant on demand upon pay- ment of a fee of one shilling, shall be legal evidence of everv such conviction. By section 37 (interpretation clause) reciting, " and in order to remove certain doubts as to the meaning of certain words in the act, be it enacted, that the word 'justice ' shall be deemed to mean justice of the peace, and that the words ' treasurer of the county or place' shall be deemed to include any officer acting in such capacity or charged with the receipt and expenditure of monies from and out of which the cost of public prosecutions have been usually defrayed, and the words 'clerk of justices ' shall be deemed to in- clude any person acting at such, and the words CROWN CASES RESERVED. 43 ' county or place ' shall be deemed severally to include 1852. any county, riding, division of the county of Lincoln "dIlb^s hundred, division of a county, liberty, division of a Case. liberty, county of a city, county of a town, city, cinque port or town corporate, and the words ' division or place ' shall be deemed to include any division of a county or riding, liberty, division of a liberty, county of a city, county of a town, city, cinque port, or town corporate." By the 126th section of 5 & 6 Wm. 4, c. 76, an act to provide for tlie regulation of municipal corpo- rations in England and Wales, passed 9th September, 1835, it is enacted, " that when by any act any penal- ties or forfeitures are or shall be hereafter made recoverable in a summary manner before any justice or justices of the peace, and by such act respectively, the same are or shall be limited and made payable to his Majesty, or to any body corporate, or to any person whomsoever, save and except the informer, who shall sue for the same, or any party aggrieved, in every such case the same if recovered and adjudged before any justice of any borough, in which a separate Court of Quarter Sessions of the peace shall be holden as aforesaid, shall notwithstanding anything in such act respectively contained be recovered for and adjudged to be paid to the treasurer of such borough for the time being, to the credit and on account of the borough fund of such borough, and no such penalty or forfeiture or share of such penalty or forfeiture shall in any case be recovered by or adjudged to be paid to any other persons than the said treasurer, unless such person be the informer or the party aggrieved." By section 31 of 11 & 12 Vict. c. 43, it is enacted, " that in every warrant of distress to be issued as aforesaid, the constable or other person to whom the same shall be directed, shall be thereby ordered to 44 CROWN CASES RESERVED. 1852. pay the amount of the sum to be levied thereunder ^^Xl^i^ unto the clerk of the division in which the justice or Case. justices issuing such warrant shall usually act, and if any person convicted of any penalty or ordered by a justice or justices of the peace to pay any sum of money shall pay the same to any constable or other person, such constable or other person shall forthwith pay the same to such clerk ; and if any person committed to prison upon any conviction or order as aforesaid, for nonpayment of any penalty, or of any sum thereby ordered to be paid, shall desire to pay the same and costs before the expiration of the time for which he shall be so ordered to be imprisoned by the warrant for his commitment, he shall pay the same to the gaoler or keeper of the prison in which he shall be so im- prisoned, and such gaoler or keeper shall forthwith pay the same to the said clerk, and all sums so received by tlie said clerk shall forthwith be paid by him to the party or parties to whom the same respectively are to bo paid, according to the directions of the statute on which the information or complaint in that behalf shall have been framed ; and if such statute shall con- tain no such directions for the payment thereof to any person or persons, then such clerk shall pay the same to the treasurer of the county, riding, division, liberty, city, borough, or place, for which such justice or justices shall have acted, and for which such treasurer shall give him a receipt without stamp ; and every such clerk, and every such gaoler or keeper of a prison, shall keep a true and exact account of all such monies received by him, of whom and when received, and to whom and when paid, in the form (T) in the schedule to this act annexed, or to the like effect ; and shall once in every month render a fair copy of every such account unto the justices who shall be assembled at the petty sessions for the division in which such justice or justices shall usually act, tobe holden on or next after CROWN CASES RESERVED. 45 the first day of every month, under the penalty of forty iggg. shillings, to be recovered by distress in manner afore- dale's said, and the said clerk shall send or deli ver every return Case, so made by him as aforesaid to the clerk of the peace for the county, riding, division, liberty, city, borough, or place withiti which such division shall be situate, at such times as the Court of Quarter Sessions for the same shall order in that behalf." The borough of Ti/nemouth was incorporated by royal charter, dated 6th August, in the year of our Lord one thousand eight hundred and forty-nine, and a commission of the peace was granted to certain persons therein named, dated 26th March, in the year of our Lord one thousand eight hundred and fifty, but no Court of Quarter Sessions was thereby granted. It is admitted for the purposes of this case that the defendant has paid over the moiety of the said fine to the treasurer of the borough of 2'ynemouth. Upon this, counsel for the defendant moved in arrest of judgment, contending that upon the true construc- tion of the statutes he had duly discharged himself by paying over the money to the treasurer of the borough of Tynemouth. On the other hand counsel for the prosecution con- tended that he had not discharged himself as it was his duty to pay the maiety of the said fine to the treasurer of the county of Northumberland, tlie borough of Tynemouth being part and parcel of the county and there being no grant of a Court of Quarter Sessions to that borough. Accordingly no judgment was passed, and the Court postponed all further proceedings to the next sessions and granted a case (a) for the opinion of the (o) The above case was signed ; Peace for the county of Northum- — CAas. ^. H. ikfoncit. Chairman of herland: Charles Otter for the Quarter Sessions for Northumber- prosecution : Adolphus F, 0. Lid- land: Wm. DicJeson, Clerk of the rfe/J for the defendant. Case. 46 CROWN CASES RESERVED. 185£. justices of either bench or the Barons of the Exchequer Dale's under the statute. The defendant being discharged on recognizance of bail to appear and receive judg- ment at the next Quarter Sessions. The question for the opinion of the Court is, whe- ther the defendant was properly found guilty upon the indictment for neglecting and refusing to pay over one moiety of the said fine to the treasurer of the said county oi Northumberland. On the 13th November, a. d, 1852, this case was argued before Jervis C. J., Alderson B., Coleridge J., Cresswell J,, and Martin B. Otter, for the Crown. Pashley Q. C, and A. Liddell, for the defendant. Pashley Q. C. The question for the consideration of the Court is simply, whether the moiety of a fine imposed by justices of the borough of Tynemouth, for a violation of the provisions of the Alehouse Act, is payable to the treasurer of the borough on account of the borough fund, or ought to have been paid over to the treasurer of the county of Northumberland in which the borough of Tynemouth is situate. Under the words of the act of Parliament, it appears that the penalty is to be paid to the treasurer of the place in and for which the justices by whom it was imposed were acting. The 4th section of 9 Geo. 4, c. 61, enacts " That the justices assembled at the General or Quarter Sessions, which shall be holden at Michaelmas next after the passing of this act, and at the general licensing meeting in every subsequent year shall appoint not less than four, nor more than eight special sessions to be holden in the division or place for which each such meeting shall be holden." The word " place," it is manifest, includes such a borough as Tynemouth ; the 7th section of 9 Geo. 4, CROWN CASES RESERVED. 47 c. 61, settles the matter. It empowers county justices 1852. to attend and act at the meeting holden for a cor- J^Tle^ porate or inferior jurisdiction where there not are two Case. justices present who are legally competent to act ; the words of the section being: — " that whenever at any of the meetings to be holden as aforesaid for any liberty, county of a city, county of a town, city or town cor- porate, there shall not be present at least two justices acting in and for such liberty, county of a city, county of a town, city or town corporate, who are not dis- qualified, it shall be lawful for the justices acting in and for the county or counties adjoining to such liberty, county of a city, county of a town, city or town corporate, and not disqualified from acting, to act within such liberty or place." Coleridge J " Town corporate" means a city or town having exclusive jurisdiction. Pashley Q. C. The act of Parliament seems to have confined it to a divisional district. There are many boroughs such as Bradford, Sheffield, and other places, where the county sessions are held ; the expenses of prosecutions are paid out of the county rate, and the boroughs contribute to the county rate. Platt B The inhabitants of Tynemouth, pay to the county rate as any other of the inhabitants of the county oi Northumberland. Surely the fine should be paid to the fund out of which the expenses of the county are defrayed. Pashley Q. C. The manner in which penalties under the Alehouse Act are to be applied is directed by section 26 of 9 Geo. 4, c. 61. " It shall be lawful for any justice before whom any penalty shall be recovered under the provisions of this act, to award, if he shall think fit, any portion of the same not in any case exceeding one moiety thereof to the use of the prosecutor, and the remainder to the treasurer of the 48 CROWN CASES RESERVED. 1852. county or place for which such justice shall then act ; "dale's ^^^ the treasurer shall place the same to the credit of Case. such couiity Or place, and shall duly account for the same." Now what can the words "place for which such justice shall then ac^'mean ? It is submitted that the fine is payable to the treasurer of the borough of Tyne- mouth in which the justices were acting when the penalty was imposed, according to 5 & 6 Wm. 4, c.76, s. 126. Otter. The word " place" used in the Alehouse Act, means a place which has a grant of separate Quarter Sessions. Penalties payable to the treasurer of a borough under 5 & 6 Wm. 4, c. 76, s. 126, are penalties "recovered and adjudged before any justice of any borough in which a separate Court of Quarter Sessions shall be holden." In the interpretation clause 9 Geo. 4, c. 61, the words " treasurer of the county or place," it is declared, shall be deemed to include any officer acting in such capacity, or charged with the receipt and expenditure of monies from and out of which the cost of public prosecutions have been usually defrayed." Now the treasurer of the borough of Tyne- mouth is not charged with the cost of public prosecu- tions, but the treasurer for the county of Northum- berland is the party so charged. It is manifest, therefore, that the 26th section of 9 Geo. 4, c. 61, directs the payment of penalties under the act to the latter instead of the former. " Place" clearly means a place with a borough fund, out of which the expenses of prosecutions are defrayed; in other words, a borough having a grant of separate Quarter Sessions, which it is admitted the borough of Tynemouth has not. Alderson B. — " County or place" means county, alias place. Jervis C. J — In the same way we have the words " division or place." V ^ CROWN CASES RESERVED. 4 Alderson B. — It looks as if the Legislature intended 1 852. that the inhabitants of the borough should contribute r... . - UALE S to the iund that bears the public expenses. Case. Otter cited Rex v. Amos, 2 B. & Aid. 533 ; Reg. v. Wells, 11 Q. B. 758 ; and Rex v. Sainshury, 4 T. R. 451. Pashley Q. C, in reply, relied upon the fourth and seventh sections of 9 Geo. 4, c. 61. Cur. adv. vult. On the 22nd of January, a. d. 1853, the following 1853. judgment was read by Jervis C. J. (a) — Whether the defendant is guilty or ^ not guilty in this case depends upon the construction of the 9 Geo. 4, g. 61, and we are of opinion that upon the proper construction of that statute the defendant is guilty, and was properly convicted. > The penalty, for the nonpayment of which to the i^J treasurer of the county of Northumberland the de- fendant has been convicted, was in this case imposed "^ under the Alehouse Act (9 Geo. 4, c. 61) by justices acting for the borough of Tynemouth, which has a O commission of the peace, but no Court of Quarter Sessions, and the question is whether the penalty ought to be paid to the treasurer of the county, or to the treasurer of the borough on account of borough fund. By the 26th section of the Alehouse Act, so much of the penalty as is not awarded to the prosecutor, is to be paid to the treasurer of " the county or place," for which the justice was acting when the penalty was imposed. The defendant's counsel contends that the word " place " must be understood in its ordinary sense, and that inasmuch as the justices were acting for the borough of Tynemouth when the penalty was (a) The other Judges present were Pollock C. B., Parke B., Williams J., and Talfourd J. VOL. I. E 50 CROWN CASES RESERVED. 1853. imposed, the treasurer of that borough is the person —7; -, — who ought to receive the penalty, and that it ought Case. to be applied to the borough fund, under the pro- visions of the Stat. 5 & 6 Wm. 4, c. 76, s. 126. On the other hand, the prosecutor asserts that the word " place," as used in that section, means a place for which a Court of Quarter Sessions is held. This, we think, is the right construction. In many of the sec- tions in which the words " county or place" are used, it is manifest that the latter word applies only to places where Quarter Sessions are held. For instance, by the 27th section, parties aggrieved may appeal to the next General or Quarter Sessions of the peace of .the " county or place " wherein the cause of com- plaint arose ; and by the 33rd section, the conviction is to be returned to the next General or Quarter Sessions of the peace of the "county or place" wherein the offence shall have been committed. The inter- pretation clause shews further, that it was intended that these penalties should be applied towards the costs of public prosecutions and not to a borough fund, because it explains the words treasurer of a " county or place," to mean an oflScer acting in such capacity or charged with the receipt and expenditure of monies from and out of which the costs of public prosecutions have been usually defrayed. The person to receive the penalty, is to be an officer acting in the capacity of treasurer of monies, for and out of which the cost of public prosecutions have been usually defrayed. In the same spirit the justices in Quarter Sessions are, by the 29th section, authorized to indemnify the justices from their costs upon an appeal in certain cases, and to order the treasurer of the " county or place " in and for which the justice acted to pay the amount. At the time the Alehouse Act passed, cor- porations had private property but no borough fund, CROWN CASES RESERVED. 51 properly so called, over which the Legislature could 1853. with justice exercise a control. The treasurer of the dalk's"^ place, meant in this section, must clearly be the trea- Case. surer of a place having a Court of Quarter Sessions, an officer under the control of the justice making the order, with a fund under their control. It would be strange that the same words should give to one fund, the borough fund, all the penalties for good con- victions, and charge upon another fund, the county rate, all the costs for convictions which could not be sustained. For these reasons we think the conviction right (a). (o) The Editor is indebted to Lordship's MS. of the above judg- Lord Chief Justice Jervis for his ment. REGINA V. ETIENNE BARRONET AND ^^^^- EDMOND ALLAIN. This was an application to the Queen's Bench for Tbepri- a writ of habeas corpus to bring up the bodies of the cominittedby prisoners, and for a writ of certiorari to bring up the of^tjj^^coro- depositions taken before the coroner and the magis- ner of s. and trates on which they had been committed to the gaol rantofjus- of the county of Surrey to await their trial on a tic^softhat •' •'_ county on a charge of wilful murder, in order that they should be charge of 1 ... , , i' .1 wilful mur- admitted to bail. der, they Montagu Chambers Q. C, and Parry, for the hfvingon •^ -^ , J J their own prisoners. confession acted as se- conds in a duel in which one C. met bis death : Held, that the circumstances that the duel was a fair one, and that the prisoners and other persons concerned in the duel were foreigners, ignorant of the fact that by the law of England killing an adversary in a fair duel, amounted to murder, formed no ground for admitting the accused to bail. Held also, that although the Court of Queen's Bench, as the sovereign Court of cri- minal jurisdiction has in all cases the power to admit to bail, yet that in its discretion where the crime is of high nature, the evidence clear, and the punishment heavy, it will not admit persons committed for such an offence to bail. E 2 52 CROWN CASES RESERVED. ]Si,2. On the 3rd November, a.d. 1852, Lord Campbell C. J., Coleridge J., Wightman J., and Erle J., Barronet's cTsr"" ^ being the Judges present, M. Chambers Q. C. ap- peared in support of his application. He moved on affidavits, from which it appeared that Frederic Gourmet, a French naval officer, had been killed m a duel by some one not in custody, and that the ^x\sor\e\-?, Etienne Barronet and Edmond AUam\\&A acted as seconds to the deceased. A coroner's inqui- sition was taken by the coroner for the county of Surrey upon the body of Frederic Courmet, and the jury having found a verdict of wilful murder against the prisoners, they were committed upon the coro- ner's warrant on that charge. The case underwent investigation before certain justices of the peace for tlie county of Surrey, and the prisoners were also committed by the justices to take their trial for the wilful murder of Frederic Courmet. While before the committing justices the prisoners admitted that they had acted as the seconds of the deceased in the duel in which he met his death. The affidavits of the prisoners further stated that they were natives of France, that they were ignorant of the laws of Eng' land, and of the circumstance that acting as seconds in fair duel was punishable as a crime in this country, it not being punishable as a crime in France : also that there was perfect fairness in the conduct of all the parties to the duel ; that the prisoner Barronet had made endeavours to prevent the duel, and that both Barronet and Allain had rendered every possible assistance and attention to the deceased after he had received the wound from which he subsequently died. The prisoners, moreover, pledged their oaths that if admitted to bail they would duly await their trial, and surrender themselves when required. An application had been made during the vacation to Crompton J., CROWN CASES RESERVED. 53 but that learned JuJge, not having the whole of the 1852. facts before him, without expressing any opinion as to barronet's the merits of the application, declined to act in the Case. case without an opportunity of consulting the other Judges of the Court ; and therefore the application was now made to the full Court. The depositions taken before the coroner and the magistrates bore out the statement in the affidavits of the prisoners, that the duel was a fair one. Lord Campbell C. J. — Your argument is, that bail may be taken because the duel was a fair one : surely this is the first time that a Court of law has been called on to interfere on any such ground. M. Chambers Q. C. hoped to satisfy the Court as to the propriety of his motion. Lord Campbell C. J. — Do you mean to contend for the proposition, that if a fair duel takes place, and death ensues, that it is not murder by the law of England ? M. Chambers Q. C. said no ; but there were cir- cumstances in this case which entitled him to make the application. He then called the attention of the Court to a statement which had been made by Baron- net, and joined in by Allain, before the justices of Surrey, to the effect that they had acted as Courmet's seconds from motives of private friendship and in obe- dience to the rules of honour, and that it was incon- sistent with their honour to name the adversary oi M. Courmet; also to affidavits, from which it appeared that Baronnet was a French merchant, carrying on business at Paris until the coup d'etat, when he found it necessary to leave France and become a voluntary exile in this country, and that Allain, who was a wine and spirit merchant, had become an exile under the same circumstances. Both the prisoners stated that they had never been charged with any offence in their own 54 CROWN CASES RESERVED. 1852. country, except with that for which they were banished. ^^^^;^^ They added that they were involuntary refugees, and Case. that if they should be liberated on bail it would be unsafe for them to abscond, as there was no other country than England in which they could be safe. The learned counsel having put these facts before the Court, adverted to the principle which regulated the admission of parties to bail. The Court was the pro- tector of those who took refuge here, and lived under the laws of this country. It was unknown to the policy and humanity of the laws of England that before trial the liberty of any one should be taken away, except as a matter of necessity, for the purpose of preventing a defeat of justice; the only object of imprisonment before trial being to secure the appear- ance of the party to take his trial. There was a recent case in which the principle he mentioned had been acted on, and where persons who were charged witli a felony had been admitted to bail. In Reg. v. Scaife, 9 Dowl. P. C.553, this principle was stated by Coleridge J.: — ♦' [ conceive that the principle on which parties are committed to prison by magistrates, previous to trial, is for the purpose of ensuring the certainty of their appearing to take their trial. It seems to me that the same principle is to be adopted on an application for bailing a person committed to take his trial, and it is not a question as to the guilt or innocence of the prisoner. It is on that account alone that it becomes necessary to see whether the oflPence is serious, whether the evidence is.strong, and whether the punishment for the offence is heavy." More re- cently the Court of Queen's Bench in Ireland granted a rule for admitting the soldiers of the 31st regiment, concerned in the Six Mile Bridge affray, to bail, although committed on a charge of wilful murder on a coroner's inquisition. CROWN CASES RESERVED. 55 Lord Campbell C. J. — Did the parties there ac- 1852. knowledge that they were guilty of the crime laid to barronet's their charge? ^^*®' M. Chambers Q. C. It might be admitted that there was a distinction between the Six Mile Bridge case and the present ; but a confession of guilt could not affect the question, the object being to secure the ap- pearance of the parties accused to take their trial. The Court would not anticipate the punishment that might follow conviction ; perhaps it might not be a heavy one ; under the circumstances it would most probably be a lenient one. Lord Campbell C. J. — This Court can only look at the law ; it cannot take into consideration the question whether the punishment annexed by law to an offence will be carried into execution or not, nor anticipate the mercy which the Crown may be pleased to exercise. Here the crime of murder is charged and confessed. M. Chamhers Q. C. The law, no doubt, was that duelling was a crime, and that killing, an adversary in a duel was murder. The Court could not alter the law, but, where the letter of the law was strict and severe, the Judges, in administering it, would temper its severity in accordance with the state of feeling, and even the prejudices and infirmities of society. In the Annual Register for the year 1782, the case of the Rev. Mr. Allen is mentioned, where it was clear that the prisoner had been at first committed for trial, and that he afterwards surrendered to take his trial, the latter fact shewing that he must in the meantime have been admitted to bail. Mr. Allen, being a clergy- man, had killed a man in a duel; he was found guilty of manslaughter and fined a shilling. The same spirit had been shewn in various cases, where the rank of the parties led to the impression that they had acted, 56 CROWN CASES RESERVED. 1852. however wrongly, in accordance with the feehngs of T the class of society to which they belonged. There Ca°sr'^^ were the duels between the Duke of York and Colonel Lennox, between Lord Norfolk and Lord Maldon, between Mr. Adam and Mr. Fox, between Lord Lonsdale and Captain Duff, between Mr. Tierney and Mr. Pitt, and between Mr. Adolphus and Mr. Alley. In such cases it was rare to keep the persons in prison till time of trial, and rarer still, except there had been unfairness in the duel, had the sen- tence according to the law been carried into effect. On these grounds, inasmuch as it appeared that the duel in the present instance was a fair one, and that the prisoners, if admitted to bail, were likely to sur- render in due course and take their trial, he sub- mitted that the Court would grant the writs of habeas corpus and certiorari, for the purpose of admitting the prisoners to bail. Lord Campbell C. J. — I am of opinion that no ground has been laid before the Court to justify us in yielding to the present application. For obvious rea- sons, I shall abstain as much as possible from observing on the circumstances of the case; but after what has been said on the subject generally, I consider it my duty to make some few observations. These two per- sons are placed in exactly the same situation as if they were native born subjects of this kingdom, and will have. the same justice administered to them as would be administered to native born subjects. I am firmly convinced that if any person in the highest station in the realm had been charged by the verdict of a coroner's jury with the crime of murder, and had confessed that he was an accessory in the duel with the deceased in respect of which that verdict had been obtained, there is not any tribunal in this country that would allow him to go at large before trial. The CROWN CASES RESERVED. 57 Court has to see, as it had been stated in a most iSo^. forcible manner by Coleridge J. in the case cited, u T the nature of the charge, the evidence adduced in Case. support of that charge, and the punishment. The Court has to consider the seriousness of the charge ; it is murder : — the nature of the evidence ; there is the confession of the prisoners : — the punishment awarded by the law ; death. Under these circum- stances can it be supposed that the Court will try, by a preliminary investigation, whether this duel was a fair one or otherwise ? The attempt to do this would be attended with the most injurious consequences, and might be most prejudicial to the interests of a prisoner himself. The Court can only look to the case before it. Here is a legal charge, which, on the confession of the accused, must be taken to be established. Is it after that to be said that, under these circumstances, when the confession has been given in evidence, and when, on all the facts before them the jurors have given a verdict of guilty, that the sentence of the law will not be pronounced ? I hope circumstances may appear so that the execution of the sentence may be avoided, but the sentence of death must necessarily be pronounced. The Judges of this Court cannot, at this moment, consider whether there were any circum- stances of mitigation, and act as if they were advising the Crown with respect to carrying the sentence into effect. There has been no case cited by Mr. Chambers as a precedent for this application. The case in the Annual Register cannot be viewed as an authority. The Court cannot know, from the vague statement there, what the charge was, nor what was the form of tiie finding of the coroner's jury, nor whether the charge found was murder or manslaughter. Indeed it is not clear that Mr. Allen was bailed at all, or he may have been admitted to bail by a justice of the peace ignorant of his duty. Nor can the Irish case men- 58 CROWN CASES RESERVED. 1852. tioned be considered as one in point. There the Barronbt's coroner's jury had found a verdict said to be contrary Case. to all the evidence, and the parties accused of wilfijl murder, instead of admitting their guilt, protested their innocence, and gave evidence to shew that they had only acted in self-defence. I am, therefore, of opinion that these gentlemen must remain in prison. Persons who fly to this country as an asylum must obey the laws of the country, and be content to place themselves in the same situation as native born sub- jects. In their trial the prisoners will have every advantage given to foreigners ; they can, if they desire it, have a jury de medietate linguce ; and they will have the benefit of the ablest counsel. But if they are found guilty sentence of death must be passed upon them, and they must then apply to the mercy of the Crown, before which the circumstances brought before us to-day will then properly be laid. Coleridge J. — I am also of opinion that this appli- cation must be refused. Even if the rule were granted, and the facts now stated on behalf of the prisoners remained unanswered, this Court would still be bound to remand the accused to prison. With regard to what I said mReg. v. Scaife(a), to that judgment I still adhere. An accused person is not committed for trial on the ground of present guilt, but because there is reasonable ground for presuming him to be guilty. This Court has, indeed, an unlimited right in all cases to bail the accused ; and magistrates, since the 5 & 6 Wm. 4, c. 33(6), have had the right to bail in felony even "notwithstanding such person or persons shall have confessed the matter laid to his or their charge, or not- W 9 Dow. P.O. 553^ for the appearance of persons li) The Stat. 5&6Wm. 4, c. 33, charged with felony may be safely was passed to amend 6 Geo. 4, c. admitted without endangering the 64 ; the preamble recites : Where- appearance of such persons to take as m many cases the taking of bail their trial in due course of law, and CROWN CASES RESERVED. 59 withstanding such justices shall not think such charge 1852. is groundless, or shall not think that the circumstances babronet's are such as to raise a presumption of guilt." After such C!ase. an enactment it is impossible to say that the guilt of parties alone would justify a refusal of bail. Yet it is an important element in the consideration of the question. The three circumstances generally speaking to be con- sidered, are, the nature of the charge, the evidence, and the punishment. Here there is a charge of wilful mm'" der, a confession before the magistrates, and the punish- ment is by the law a capital punishment. On these grounds there is a probability that no amount of bail will secure the prisoners' attendance to take their trial. Two observations only are made in answer, that these persons are foreigners, and that if they are found guilty the sentence of the law will never be carried into effect. We are told to lay down a different rule to what we should apply to native born subjects, because these persons are foreigners and ignorant of our law relating to duelling. But I agree with the Lord Chief Justice, that foreigners who come to England, must in this respect be dealt with in the same way as native sub- jects. Ignorance of the law cannot, in the case of a native, be received as an excuse for a crime, nor can it any more be urged in favour of a foreigner. With respect to the punishment which might be inflicted in this case, in the event of the conviction of the prisoners, we must assume that the punishment awarded to the crime by law will follow a verdict of guilty. It is not it is therefore expedient in such with any/ehny [or with &c.] such cases to amend and the provisions justice of the peace may in his dis- in that respect, &c. cretion, admit such person to bail The section of the statute re- upon his procuring and producing ferred to by Mr. Justice Cole- such surety or sureties as in the RIDGE, is repealed by 11 & 12 opinion of such justice will be suf- Vict. c. 42, s. 34. The 23rd sec- fieient to ensure the appearance of tion of the last-mentioned act pro- such deceased person at the time vides that where any person shall be and place when and where he is to brought before any justice charged be tried for the offence. 60 CROWN CASES RESERVED. Case. 1852. for this Court to speculate as to the manner in which Barron et's t'le mercy of the Crown may be exercised. WiGHTMAN J I fully concur in the observations of my brother Coleridge ; and think that this is not a case for the interference of the Court. Erle J It appears to me also to be the duty of the Court to refuse this application. Wherever the crime is of great magnitude, the punishment of a high nature, and the evidence of crime clear, then an application of this sort ought, in my judgment, to be refused ; but if any one of these requisites be wanting, the Court will exercise its discretion in the matter. To make a differ- ence in the case of foreigners would be a most danger- ous practice. It is of great importance that the ad- ministration of the law should be uniform. It must be administered without respect to persons, and it would be dangerous and unjust to introduce into a general rule an exception in favour of foreigners. The rule was accordingly refused. 1852. REGINA V. EMANUEL BARTHELEMY PHILIPPE EUGENE MORNEY. AND prkcipie *^' On the 23rd November, 1852, Huddleston moved the upon which Queen's Bench for a writ of habeas corpus to brine- un bail IS re- iVij-r-n 7-n7T ol fused or the bodies oi J^manuel Barthelemy and Philippe Eugene cIseToV" Morney, and also for a writ of certiorari to remove ™a"itd'^of"^ the depositions taken before the coroner for Surrey, fences. See and the magistrates of that county (a), with a view to fZuantT *^^''" ""^'"S admitted to bail. The parties he said had p. 51. ' 2. In ("^ ^^^ ^^9- V. Barronet, and Allain, ante p. 51. moving for a certiorari to brinff up depositions taken before a coroner or maeis. trates, with a view to admitting a party committed upon them for trial on a charge of murder or manslaughter It is the proper course to produce copies of such denosi- tions verified by affidavit, and on them to ground the application. "epoai CROWN CASES RESERVED. 6 been committed on the coroner's inquisition, and also ]852. by the magistrates, upon a charge of wilful murder, b^jj^he- They were two of four gentlemen who were alleged lemy's to be concerned in a fatal duel which took place near Egkam, in the county of Surrey. A similar application had been made, in the early part of the Term, on the part of two of the parties. It was refused by the Queen's Bench ; but this case was distinguish- able. In that case the parties had confessed their guilt, and the Court said that where the oflfence was serious, the punishment capital, and the evidence clear, that bail would not be allowed ; and whether there was a confession or no, was always an important consideration in such cases. Coke, 4 Inst. 178, says, " If upon examination a man confesseth a felony, if the mittimus be for felony confessed, he cannot be bailed." But in the present case the prisoners have made no confession. Coleridge J. — Have they made an affidavit deny- ing their guilt? Huddleston. That would not be according to usual practice. There are precedents to support the present application. In the year 1843, Mr. Gulliver, who ap- peared to have been a surgeon attending on the ground at the duel in which Colonel Fawcett was killed, was admitted to bail by Coleridge J. He afterwards surrendered, was tried and acquitted. The Earl of Cardigan, after wounding his antagonist in a duel, avowed the fact before a magistrate, but was admitted to bail by him ; and after an indictment for shooting with intent to kill was found against that noble lord, BosAMQUET J. enlarged the recognizances both of his lordship and of his second. In Rex v. Morgan, 1 Bulst. 84, which was an indictment for murder in a duel, the prisoner was admitted to bail. Lord Campbell C. J I do not think it has ever been doubted that the Court may in its discretion bail 32 CROWN CASES RESERVED. 1852. in cases of murder (a). In the case of Bex v. Morgan, Barthe- t'i6 Court seem to have thought that there was im- lemy's proper delay on the part of the prosecutor : — what are the facts in the present case ? Iluddleston. Lord Mansfield, in the case of Rex v. JLord Baltimore, 1 W. Bk. 648, strongly disapproved of discussing under similar circumstances the nature of the evidence. To do so might be very prejudicial to the prisoners. Lord Campbell C. J. — But grounds must be shewn before a prisoner can be admitted to bail. Coleridge J The uniform practice on applications for the writ of certiorari, in such cases, is to produce copies of the depositions verified by affidavit, and on them to found the application. Iluddleston, then, having argued from copies of the depositions, that the evidence against the defendants was far from being conclusive, contended that the case was one in which the parties were entitled to be libe- rated on giving substantial bail for their appearance to take their trial. Cur. adv. vult. (fO See the letter of Junius to cretion, pay a due regard to the Lord Mat^field C. J. respecting rules prescribed by it, and not ad- the case of John Eyre, in which, mit a person to bail who is ex- with much acumen and learning, pressly declared by it to be irre- he reviews the various statutes plevisable without some particular respecting bail from stat. West- circumstance in his favour. It minster I. to the Habeas Corpus seems difficult to find an instance Aet, 33 Car. 2, and cites the prin- where persons attainted of felony, cipal authorities on the subject, or convicted thereof by verdict Letters of Junius, Ixviii. The law general or special, or notoriously upon the subject as to the power oi guilty of treason or manslaughter, the Court of Queen's Bench, and ^c.hy their own confession or other- the mode in which that Court wise, have been admitted to bail exercises the discretion vested in without some special motive to induce .Judges by the law is well expres- the Court to grant it." 2 Hawk, sed by Hawkins: — " It cannot be P. C. c. 15. And see 2 Inst. 185 • doubted but that notwithstanding 2 Hale, 129, 143 ; Salkeld, 61 • neither the Judges of this, nor of Keylenge, 90; Lord Raym. 381- any other superior Court of justice 5 Mod, 454. are strictly within the purview of The discretion of the Court that statute (stat. West. 1. c. 15), Cohe (4 Inst. 91) defines to be dis- yet they will always, in their dis- ''^^'^tfe per legem quid sit justum. LEMY S Case. CROWN CASES RESERVED. 63 On the 24th November, the judgment of the Court 1853. was delivered by Lord Campbell C. J. — Babthe- Having carefully looked at the depositions taken before the magistrates and the coroner, the Court is of opinion that it would not be justified in yielding to the application. Here there is an inquisition finding the parties guilty of wilful murder. On looking at the depositions, we find that the death took place in a duel, and the Court is of opinion that there is evidence to support the finding of the coroner's jury. We do not say that the evidence was conclusive ; on the contrary, we say, as in the previous case, "God grant them a good deliverance !" The parties are in the situation of persons against whom a grand jury have found a ver- dict of wilful murder. It is unnecessary to consider what course the Court would pursue if there had been no evidence, for in this case there is evidence. It would therefore be contrary to all the principles upon which the Court has uniformly acted if it were to grant a writ of habeas corpus. There is, in this instance, no distinction between the case where murder takes place in a duel and in any other transaction, and it would be inexpedient that there should be. Time was when public opinion was contrary to the law of the land, but it has now taken a turn, and is more in accordance with it, and I trust that the time will soon arrive when duelling will be considered not only as illegal, but as absurd. The application must be refused (a). (a) As to bail in cases of felony prison by a jastice on the charge of generally, see Mirror, chap. ii. s. manslaughter or murder, see Arch. 10, Sir E. Coke's Treatise on Bail Crim.Pl.Ev. and Practice, liihed. andMainprizej 4:Inst.l78,cap.31; by Welshy, p. 72 j and in cases Justices of Peace ; Hale's Sum. P. where a prisoner is committed on C. 96; Com. Dig. tit. Bailj 4 Bla. the warrant of a coroner, see lb. Com. 297 J 2 Hawk. P. C. 15; 1 tit. "Coroner's Inquisition," p. Chiity Crim. L. 99 ; Eighth Rep. 101. Commissioners on Crim. L. 49 ; As to the writ of Habeas Corpus and as to practice under 11 & 12 generally, see Eighth Rep. of Com- Vict. c. 42, in admitting to bail missioners of Crim, L. chap. xi. where parties are committed to Sect. 2, p. 190. 64 CROWN CASES RESERVED. 1852. WILLIAM DUGDALE v. THE QUEEN. Writ of error in the Queen's Bench. The de- fendant was tried before Mr. Serjt. Adams at the 1. Certain counts in mentcharged Westminster sessions, on the 24th September, 1851, the defend- x\^q^ indictment charging him with unlawfully pre- serving and keeping certain lewd and obscene prints, and also for obtaining and procuring the same with the intent and for the purpose of uttering and selling the same. He was found guilty, and sentenced to be imprisoned for two years. Whereupon a writ of error of unlawfully ^as sued out. uttering and The indictment, which charged offences at common law, contained seven counts: — 1st count. The jurors for our lady the Queen upon their oath present that William Dugdale late of the parish of Saint Clement Danes in the county of Mid- dlesex labourer being a person of most wicked and depraved mind and disposition and unlawfully and wickedly devising contriving and intending as much as in him lay to vitiate and corrupt the morals of the liege subjects of our said lady the Queen and to incite and encourage the said liege subjects to in- decent obscene and immoral practices and bring them to a state of wickedness lewdness and debauchery heretofore to wit on the second day of September in the year of our Lord one thousand eight hundred and fifty-one at the parish aforesaid in the county afore- said unlawfully wickedly knowingly wilfully and de- signedly and in order to effect and bring about such ant with preserving and keeping in his pos- session ob- scene prints with the in- tent and for the purpose selling the same, and thereby cor- rupting the morals of the liege subjects of the Queen : Held, upon writ of error, insufficient in law. 2. But Held, that the counts in the in- dictment charging that the de- fendant did unlawfully obtain and procure ob- scene prints with a like intent, and for a similar purpose, were good, and charged a misdemea- nor punishable at common law. CROWN CASES RESERVED. 65 his most wicked devices and contrivances did obtain 1S53. and procure divers to wit one hundred indecent lewd Dugdale's filthy bawdy and obscene prints and divers to wit one ^^^''' hundred indecent lewd filthy bawdy and obscene pictures then and there respectively tending to scandalize and debase human nature and then and there representing and exhibiting the persons of men and women naked and partly naked in obscene and indecent attitudes postures and situations in order and for the purpose of afterwards unlawfully and wickedly uttering publishing selling and disseminating and causing to be uttered published sold and disseminated the said prints and pictures to and amongst the liege subjects of our said lady the Queen and thereby contaminating vitiating and corrupting the morals of the said liege subjects and bringing the said liege subjects to a state of wickedness lewdness debauchery and immorality in contempt of our said lady the Queen and her laws to the evil and pernicious example of all others in the like case off"ending 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 William Dugdale being a person of such wicked and depraved mind and disposition as in the first count mentioned and unlawfully and wickedly devising and contriving as in that count also mentioned afterwards to wit on the same day and in the year aforesaid at the parish aforesaid in the county aforesaid unlawfully wickedly knowingly wilfully and designedly did preserve and keep in his possession divers to wit one hundred other indecent lewd filthy bawdy and obscene prints and divers to wit one hundred other indecent lewd filthy bawdy and obscene pictures then and there respec- tively tending to scandalize and debase human nature and then and there exhibiting and representing the VOL. I. F 66 CROWN CASES RESERVED. 1853. persons of men and women naked and partly naked Dugdalb's J" obscene and indecent attitudes postures and situa- Case. tjons with the intent and for the purpose of unlawfully and wickedly uttering selling publishing and dissemi- nating the said last mentioned prints and pictures and causing the same to be uttered sold published and dis- seminated to and amongst the liege subjects of our said lady the Queen and thereby contaminating vitiating and corrupting the morals of the said liege subjects and bringing the said liege subjects to a state of wickedness lewdness debauchery and immorality in contempt of our said lady the Queeli and her laws to the evil and pernicious example of all others in the like case offend- ing and against the peace of our said lady the Queen her Crown and dignity. 3rd count. And the jurorS aforesaid upon their oath aforesaid do further present that the said William Dugdale being a person of such wicked and depraved mind and disposition as in the said first count mentioned and unlawfully and wickedly de- vising and contriving as in that count also mentioned afterwards to wit on the same day and in the year aforesaid at the parish aforesaid in the county afore- said unlawfully did obtain and procure a certain wicked lewd bawdy and obscene libel in which said libel (amongst divers other wicked lewd bawdy and obscene matters contained therein) it contained according to the tenor and effect following that is to say &c. (a) in order for the purpose o/" afterwards un- lawfully and wickedly uttering selling publishing and disseminating the said last mentioned lewd filthy bawdy and obscene libel and unlawfully causing the (a) The words of the obscene morals of the people, see Rex v. libel were here set out. As to Cnrl, 2 Str. 788 ; Rex v. Wilks, 4 Libels subversive of morality and Burr. 2527. tending to corrupt the minds and CROWN CASES RESERVED. 67 same to be uttered sold published and disseminated to 1853. and amongst the liege subjects of our said lady the dugdale's Queen and thereby contaminating vitiating and cor- ^^^^ rupting the morals of her said liege subjects and bringing the said liege subjects to a state of wicked- ness lewdness debauchery and immorality in contempt of our said lady the Queen and her laws to the evil and pernicious example of all others in the like case offending and against the peace of our said lady the Queen her Crown and dignity. 4th count. And the jurors aforesaid upon their oath aforesaid do further present that the said William Dugdale being a person of such wicked and depraved mind and disposition as in the said first count men- tioned and unlawfully and wickedly devising and con- triving as in that count also mentioned afterwards to wit on the same day and in the year aforesaid at the parish aforesaid in the county aforesaid unlawfully wickedly knowingly wilfully and designedly did obtain and procure divers to wit one hundred wicked lewd bawdy and obscene libels in order and for the purpose of afterwards and unlawfully and wickedly uttering pub- lishing selling and disseminating and causing to be uttered published sold and disseminated the said wicked lewd bawdy and obscene libels to and amongst the liege subjects of our said lady the Queen and thereby contaminating vitiating and corrupting the morals of the said liege subjects and bringing the said liege subjects to a state of lewdness debauchery and immorality in contempt of our said lady the Queen and her laws to the evil and pernicious example of all others in the like case offending and against the peace of our said lady the Queen her Crown and dignity. 5th count. And the jurors aforesaid upon their oath aforesaid do further present that the said William Dugdale being a person of such wicked and depraved F 2 68 CROWN CASES RESERVED. iSiSS. mind and disposition as in the said first count men- Dugdale's tioned and unlawfully and wickedly devising and con- Case, triving as in that count also mentioned afterwards to wit on the same day and year aforesaid at the parish aforesaid in the county aforesaid unlawfully wickedly knowingly wilfully and designedly did preserve and keep in his possession divers to wit one hundred other wicked lewd bawdy and obscene libels in order and for the purpose of unlawfully and wickedly uttering selling publishing and disseminating the said last mentioned libels and causing the same to be uttered sold published and disseminated to and amongst the liege subjects of our said lady the Queen and thereby contaminating vitiating and corrupting the morals of the said liege subjects and bringing the said liege subjects to a state of wickedness lewdness debauchery and immorality in contempt of our said lady the Queen and her laws to the evil and pernicious example of all others in the like case offending and against the peace of our said lady the Queen her Crown and dignity. 6th count. And the jurors aforesaid upon their oath aforesaid do further present that the said William Dugdale being a person of such wicked and depraved mind and disposition as in the first count mentioned and unlawfully and wickedly devising and contriving as in that count also mentioned afterwards to wit on the same day and in the year aforesaid at the parish aforesaid in the county aforesaid unlawfully wickedly knowingly wilfully and designedly did obtain and procure divers to wit one hundred wicked lewd bawdy and obscene libels in order and for the purpose of after- wards unlawfully and wickedly uttering publishing and disseminating and causing to be uttered published and disseminated the said wicked lewd bawdy and obscene libels to and amongst the liege subjects of our lady the Queen and thereby contaminating vitiating s CROWN CASES RESERVED. 69 and corrupting the morals of the said h'ege subjects 1853. and bringing the said liege subjects to a state of ^^jaoAvs wickedness lewdness debauchery and immorality in Case, contempt of our said lady the Queen and her laws to the pernicious example of all others in the like case offending and against the peace of our said lady the Queen her Crown and dignity. 7th count. And the jurors aforesaid upon their oath aforesaid do further present that the said William Dugdale being a person of such wicked and depraved mind and disposition as in the first count mentioned and unlawfully and wickedly devising and contriving as in that count also mentioned afterwards to wit on the same day and in the year aforesaid at the parish aforesaid in the county aforesaid unlawfully wickedly knowingly wilfuUy and designedly did preserve and keep in his possession divers to wit one hundred other wicked lewd bawdy and obscene libels in order and for the purpose of unlawfully and wickedly uttering pub- lishing and disseminating the said last mentioned libels and causing the same to be uttered published and disseminated to and amongst the liege subjects of our said lady the Queen and thereby contaminating vitiating and corrupting the morals of the said liege subjects and bringing the said liege subjects to a state of wickedness lewdness debauchery and immorality. In contempt of our said lady the Queen and her laws, to the evil and pernicious example of all others in the like case ofiending and against the peace of our said lady the Queen her Crown and dignity. The errors assigned were, that the indictment shewed no offence upon the face thereof known to the law ; the first count merely charging the defendant with procuring indecent pictures for the purpose of afterwards unlawfully publishing and selling them, which was not an indictable offence ; the second 70 CROWN CASES RESERVED. 1853. count with keeping the same pictures in his possession Dhgdale's for the same purpose ; the third, fourth, and sixth Case. counts with procuring obscene libels for a like pur- pose ; and the fifth and seventh counts charging the defendant with keeping in his possession the same obscene libels for the same purpose ; and the plaintiff in error prayed that the judgment, for these errors and other errors appearing in the record and pro- ceedings, might be reversed, annulled, &c. Joinder in error. On the 26th January, a. d. 1853, this case was argued before Lord Campbell C. J., Coleridge J., WiGHTMAN J., and Crompton J. Clarkson and Bodkin for the Crown. Metcalfe for the plaintiff in error. • Clarkson said that before the plaintiff's counsel was heard, he would take the opinion of the Court whe- ther Dugdale ought not to be present in Court to abide the result of their lordships' decision? Lord Campbell C. J In case the conviction is affirmed the defendant will be required to appear in Court ; but he is not bound to be present till then (a). Metcalfe being about to proceed with his argument, Lord Campbell C. J. said that the plaintiff in error had not delivered his paper books as he was bound to do by the rules of the Court, and he was now in a position in which the Court might give judgment against him (6). (a) As to the provisions of 8 & 9 and the defendant or his attorney Vict. c. 68, respecting bail in error, shall, in like manner, make and Ae- eeepost, p. 76. liver a paper book to the third and (J). It is ordered by Reg. Gen. fourth Judge of the said Court Cr. Of. 22, that in all cases en- respectively, two days before the tered for argument in the Crown day on which the case will be put Paper, the prosecutor or his at- in the paper for argument ; and torney shall deliver a paper book, such several paper books shall in of the proceedings to each of the all cases, (except where a special two senior Judges of the Court ; case is reserved for the opinion of CROWN CASES RESERVED. 71 Metcalfe said, the omission to furnisii the Judges 1853. with paper books, on the part of the plaintiff in error, dugdalb's must have been accidental ; and prayed the Court to Case. postpone the case in order to enable him to have them prepared. Lord Campbell C. J. said, that although it was in- convenient to the Court to hear the argument without the delivery of a paper book to each of the Judges ; yet, as the paper books of the Crown had been de- livered, and the counsel for the Crown were ready, the case might proceed. Metcalfe. The indictment contained seven counts, which might be divided into two classes; — the first, stating the offence to be having possession of indecent prints and libels ; the second, procuring them. It must be admitted, that if any one count be good, judgment must be given for the Crown. In the first place, having possession of indecent pictures with whatever intent, it is submitted, is no offence at common law. Lord Campbell C. J. — It may be that it is not an indictable offence for a man to have in his possession such things merely for the indulgence of his own prurient imagination ; but if he have them in his possession for the purpose and with the intent to sell and publish them, that may be a different question. Metcalfe. It cannot be an offence merely to intend to sell and publish indecent prints or libels. The law takes no notice of intentions which do not pass into acts. If any act were done in furtherance of the unlawful intention, that would unquestionably the Court), contain in the margin copy of the rule nisi to quash, or thereof, or appended thereto, and for a concilium; and judgment to be delivered therewith, the shall be given by the party ne- points intended to be argued, but glecting to deliver paper books to shall not contain any other ob- the Judges, or delivering the same servation or matter than such without points for argument, if the points for argument, together with Court shall so please, copies of the proceedings, and a 72 CROWN CASES RESERVED. 1853. be a misdemeanor. If an attempt had been made to DuGDALE's sell, — if, for example, the person indicted had gone at Case. the instigation of a customer to get the pictures, and before he had taken them from out of the drawer, or off the shelf where they were, he had been interrupted by a police officer, there would be an act done in advancement of an unlawful purpose — an attempt to commit a misdemeanor. But an intent of the mind afterwards to disseminate and publish the prints, was not per se an indictable offence, for he might alter his intention and not disseminate them. These pictures might have been found by him among other property left to hira by will ; they might have been left at his house for inspection without his concurrence ; and he might have said to some one that he would sell them, but afterwards came to a different resolution. Lord Campbell C. J. — Suppose the plaintiff in error, when first the pictures came into his possession had an innocent intention, — had resolved to burn them, but that afterwards, it may be while he was in bed, his good mind alters and he then entertains the intention of selling them, can it be said that he then becomes indictable, not being so before ? Metcalfe. In the case of Bex v. Sutton, Rep. temp. Hardw. 370, 2 Str. 1074, it was held, that having instruments of coining in a man's possession with intent to coin money, was indictable as a misdemea- nor ; but that case was afterwards overruled by a later decision of the Judges in JRex v. Heath, Russ. & Ry. 184. Coleridge J. — Lord Hardwicke, in the case of ^cj; V. Sutton, held that possession merely was not an in- dictable offence. Metcalfe. He doubted whether a bare possession with intent to utter, without an uttering, was an indictable offence. CROWN CASES RESERVED. 73 Lord Campbell C. J. — In the case of Rex v. Heath 1853. did the Judges hold that having possession of counter- pugoALE's feit coin with intent to utter, without any act done in Case. furtherance of the intention, was not indictable as a misdemeanor? Metcalfe. That was so. Lord Campbell C, J. — That decision goes a long way in support of your position. Metcalfe. It is not contended that such an act as packing up the pictures for the purpose of delivery would not be an indictable offence ; but having them in possession with the intent of selling them is not so. Lord Campbell C. J In the former case there would be the commencement of a misdemeanor. Metcalfe. The second class of counts in the indict- ment charge that the plaintiff in error procured in- decent pictures and libels for the purpose of afterwards unlawfully publishing and selling them. Lord Campbell C. J. — What do you say to the first count? Coleridge J. — How can you distinguish the charge in the first count from the case of Rex v. Fuller, Russ. & Ry. 308, where the Judges were unanimously of opinion, that procuring base coin with intent to utter it, was a misdemeanor; and that having in it pos- session, unaccounted for, was evidence of procuring ? Metcalfe. Does it sufficiently appear that the act of procuring laid in the first count, is in pursuance of a misdemeanor ? Suppose a man, contemplating the commission of a burglary, gets a key made with intent to commit a burglary, would that be indictable as a misdemeanor (a) ? The recent act 14 & 15 Vict. c. 19, (a) In the case of Rex v. Burdett, Ush, but not followed by publica- 4 B. & Aid. 95, it was doubted tion was an indictable oflFenca : whether the mere writing and com- See also Rejc v. Burdett, 3 B. & Aid. posing of a libel ivith intent to pvh- 7l7- 74 CROWN CASES RESERVED. 1853. declares it to be a misdemeanor to be found in pos- 7ZT-— t: session of a key or an offensive weapon with intent Case. to commit a burglary ; if it had been an ottence at common law it would have been unnecessary to pass the act of Parliament (a). Lord Campbell C. J.— The act 14 & 15 Vict. c. 19 contains several stringent provisions, and alters the punishment. Metcalfe. The indictment charges that the defend- ant purchased and procured the pictures with intent to corrupt the morals of the public, but does not lay an intent to utter and publish them for the purpose of corrupting the public morals. Clarkson was not called upon by the Court, Lord Campbell C. J. — I am of opinion that judg- ment must be affirmed upon one class of counts, and not upon the other. In both cases we have decisions to guide us, and we see no reason to question the soundness of those decisions. On the authority of Rex V. Heath (b), we must hold the first class of counts bad J because they are consistent with the possibility that the plaintiff in error may have had the pictures (a) The 5 Geo. 4, c. 83, s. 4, deemed a rogue and a vagahtmd enacted that every person having within 17 Geo. 2, c. 8." in his possession or custody any Leach, in his edition of Haw- picklock, key, &c. with a felonious kins' Pleas of the Crown, remarks intent, should be deemed a rogue upon this statute, " N.B. — This and a vagabond. was a misdemeanor at common The words of that statute are law." nearly in the same words as those In the case of Rex v. Lee and of 23 Geo. 3, c. 88, which said " If Others, Old Bailey, a.d. 1689, the any person shall be apprehended prisoners were convicted on an in- having upon him any picklock dictment charging them with key, crow, jack, bit or any other having in their custody divers implement with an intent feloni- picklock keys with intent to break ously to break and enter into any into a house and steal the goods dwelling-house, warehouse, coach- therein. Cas. temp. Hardw. p. Z7l. bouse, stable or out-house shall be (b) Russ. & Ry. 184. CROWN CASES RESERVED. 75 in his possession with an innocent intention; and there 1853. IS no act shewn to be done which can be considered as dugdalb's the first step in the prosecution of a misdemeanor. In Case, the case of Rex v. Heath, the prisoners were indicted for having in their possession base coin with intention to utter it, and all the Judges on consideration held that that was not in itself an indictable offence although having the base coin in possession was evidence of having procured it with intent to utter it. In the other case (a) the Judges held that procuring base coin for the purpose of afterwards uttering it was an unlawful act done in furtherance of a misdemeanor, and was without doubt an offence punishable by indictment at common law. Now apply these cases to the pre- sent one. The having possession of base coin is now provided for by statute ; no statute has been passed with respect to the possession of indecent prints, but procuring such prints is an offence against the com- mon law of England (6). Procuring is an overt act ; an unlawful step taken in pursuance of the abominable offence of circulating obscene prints to deprave and corrupt the public morals. Coleridge J The law will not take notice of a bare intention without some act done in furtherance of it ; but procuring indecent prints or pictures with (a) Rex V. Fuller, Russ. & Ry. by 14 & 15 Viet. c. 100, s. 29, that 308. when any person is convicted of (J) As to indictments at Com- the offence of "any public selling mon Law for offences against pub- or exposing for public sale or to lie morals'or decency, see Sedley's public view, of any obscene book, case, Sid. 168, 2 Str. 791 ; Wilkes" print, picture, or other indecent case, i Burr. 2530 ; Holt on Libel, exhibition," it shall be lawful for 73, 284 ; Dodd's case, 2 Sess. Ca. the Court to order him to be 33; Starkie on Slander, 159; 1 Russ. imprisoned for any term war- on Crimes, 233 ; 3 Burn's J. " Lewd- ranted by law, and kept to hard ness," 721 ; 2 Chit. Crim.L. 42 ; 3 labour. Geo. 4, c. 40, s. 3. It is provided 76 CROWN CASES RESERVED. 1853. intent to circulate them is clearly such an act as by Dugdale's ^^^ '^ indictable as a misdemeanor. Case. WiGHTMAN J. and Cromptow J. Concurred. Judgment for the Crown. Lord Campbell C. J.— Let the defendant's bail now produce the defendant in Court, not for sentence, but in order that the Court may commit him to prison. Neither the defendant nor his bail appeared in Court when called. Clarkson prayed that the recognizances of the de- fendant and his bail be estreated. The Court ordered the recognizances to be estreated, but intimated that if the defendant surrendered in the course of the day the estreat would be removed. Clarkson observed that the stat. 8 & 9 Vict. c. 68 (a) (a) The Act 8 & 9 Vict. c. 68, for staying execution of judgment for misdemeanors upon giving Bail in Error, provides, That in every case of judgment, whether given before or after the passing of this act for a misdemeanor, where the de- fendant or defendants shall have obtained a writ of error to reverse such judgment, execution there- upon shall be stayed until such writ of error shall be finally determined; and in case the defendant or de- fendants shall be imprisoned under such execution, or any fine shall have been levied, either in whole or in part, in pursuance of such judgment, the said defendant or defendants shall be entitled to be discharged from imprisonment, and to receive back any money levied on account of such fine from the person or persons in whose pos- session the same shall be, until such final determination as aforesaid,: Provided always, that no execution upon any such judgment shall be stayed unless and until the de- fendant or defendants shall become bound by recognizance, to be ac- knowledged before one of the Judges of her Majesty's Court of Queen's Bench, or one of the commissioners appointed to take special bail in actions depending in the superior courts, with two suflS- cient sureties, to be approved of by such judge or commissioner, in such sum as such judge or com- missioner shall direct, to prosecute the writ of error with effect, and in case the judgment shall be affirmed forthwith to render the said de- fendant or defendants to prison, according to the said judgment, where imprisonment shall have been adjudged; and every such recog- nizance shall, after justification of CROWN CASES RESERVED. 77 was very defective in not having made it a condition 1853. of the recognizances that the plaintiff in error should ~^ UGDALE S Case. bail, be filed of record in the said Court of Queen's Bench, in like manner and upon payment of the like fees as in the case of other recognizances filed in the Crown office in that court ; and the judge of the said Court of Queen's Bench, and the said commissioner, shcill have the like powers in respect of the justifying such bail in error, and the examination of the sureties, and the like rules shall apply, as in respect of special bail in actions depending in such Court: Provided always, that in the case of any defendant under legal disability, it shall be sufficient if two persons, to be approved of by such judge or commissioner, shall become bound by recogni- zance on the behalf of such de- fendant, to be acknowledged and conditioned as aforesaid. Sect. 2. And be it enacted. That the clerk of the Crown in the said Court of Queen's Bench shall for the purposes hereinafter mentioned make out and deliver to the de- fendant or defendants, or his or their lawful attorney, certificates in writing under his hand that such recognizance is duly filed of record in such court, upon payment of the like fee as for other certificates de- livered at the Crown office ; and any such certificate, when duly verified by affidavit to be made before one of the Judges of the superior courts of common law, or a commissioner duly authorized, shall be a sufficient warrant to every gaoler or other person having custody of such defendant or de- fendants in execution of such judgment to discbarge him or them out of custody, and also to every person having in his possession the whole or any part of any fine levied in execution of such judg- ment, to authorize and require the repayment thereof to the defendant or defendants ; but no person who shall have received any such money, and have paid it over to any other person, according to the course of the Exchequer, shall be liable to repay to the defendant or defendants any part of the money so paid over. Sect. 3. And be it enacted. That where judgment upon such writ of error shall be affirmed, and im- prisonment shall have been ad- judged, the period for its con- tinuance in pursuance of such judgment, if such imprisonment shall not have commenced under such execution, shall be reckoned to begin from the day when such de- fendant or defendants shall be in actual custody under such judg- ment ; and if the defendant or de- fendants shall have been discharged from imprisonment in manner hereinbefore provided, such de- fendant or defendants shall be liable to be imprisoned for such further period, as with the time during which such defendant or defend- ants may already have been im- prisoned under such execution, shall be equal to the period for which such defendant or defend- ants was or were so adjudged to be imprisoned as aforesaid. Sect. 5, in case of delay or neglect to prosecute, provides. That the Court in which any such writ of error shall be pending shall upon motion in that behalf decide that the defendant or defendants by whom it shall be brought has 78 GROWN CASES RESERVED. 1853. Dhgdalb's Case. appear in Court upon the argument of the errors, and abide the result. or have wilfully delayed or ne- glected to prosecute the same with effect, it shall be lawful for such Court to order the writ of error to be quashed, and thereupon the defendant or defendants who brought such writ of error shall be liable to execution upon the judg- ment. FORM OF MEMORIAL TO ATTORNEY GENERAL FOR WRIT OF ERROR. The provisions of the Common Law Procedure Act (15 & 16 Vict. c. 76, s. 148), abolishing Writs of Error in Actions, do not apply to Criminal Caees ; and before the Writ of Error can be obtained at the Petty Bag OfSce, the fiat of the Attorney General must, as heretofore, be obtained. The me- morial to the Attorney General in the foregoing case was in the fol- lowing form : — THE QUEEN V. WILLIAM DUG- DALE. "To Her Majesty's Attorney Ge- neral. " The humble memorial of Wil- liam Dugdale, the above-named de- fendant. Sheweth, " That your memorialist has been indicted, tried, convicted, and sentenced to imprisonment at the General Quarter Sessions of the Peace holden for the county of Middlesex, all of which the an- nexed copy of the record of the said indictment, conviction, and sentence sheweth. That the an- nexed is a true and correct copy of the same record. And your memorialist further submits that there is error in the said record, as will be seen by reference to the said copy thereof." " The following causes of error arising thereon are respectively submitted to Her Majesty's At- torney General, and his fiat to pro- ceed in prosecuting the same upon the usual terms is humbly re- quested. " That the indictment shews no offence known to the law, and does not warrant the said conviction and sentence. "That the first count of the said indictment charges the de- fendant merely with procuring in- decent pictures for the purpose of afterwards unlawfully publishing and selling them — which is not an offence known to the law, nor pu- nishable by indictment. " That the second count charges the keeping the same pictures in possession with a similar purpose and that this also is not an indict- able offence. "That the third, fourth and sixth counts charge the defendant with procuring obscene libels with a like purpose. That this also is not an indictable offence. "That the fifth and seventh counts charge the defendant with keeping in possession the same CROWN CASES RESERVED. 79 obscene libels with a like purpose. For modern forms of Praecipes i o^g That this also is not an indictable and Fiats, see Arch. Crim. PI. offence. Ev. ^ Prac. by Welsby (12th ed.), Dugdale's " And that there are divers other 160, 161. Case, errors in the said record." REGINA V. ARCHIBALD WILSON. 1853. The above named defendant was on the 19th De- Where the cember, a. d. 1851, committed by Mr. Alderman rproseoi- Hunter, the then Lord Mayor, to take his trial at the j°°tg^'jj" then ensuing session of the Central Criminal Court, the City so- for having unlawfully assaulted one Harry Harwood, direction of with intent to commit an abominable offence. It *^® ^°^\ Mayor oi appeared from affidavits in the case that it is the London, were custom and practice for the said mayor and aldermen \^^ funds" of the city o{ London, upon their committing persons ofth?cor- ., -rr • I'lp poration: charged with serious oflrences, particularly with of- Held, that fences of the description with which the defendant had no" was charged, and where there is a probability, either power to from the position in society of the party accused, or defendant to the inability from poverty, or other circumstances, of of the prose-^ the person preferring the charge to prosecute, that cution in- justice is likely to be, or may be frustrated or im- the removal peded if the prosecution be left in the hands of the dictment by party complaining, to direct the City solicitor to con- certiorari, on , , ■ f ^ , • /■ h's convic- duct the prosecution oi the case; that in pursuance or tion, such a such custom and practice, as the said Harry Harwood ^eing within and his father were in poor and needy circumstances, 5 & 6 Wm. , 8f M, c. II and as the said Archibald Wilson was a person of «. 3. " some wealth and station in society, the said Lord 90 CROWN CASES RESERVED. 1S53. Mayor directed the City solicitor to conduct the pro- Wilson's secution in this case ; and acting under such directions, ^^^«- he accordingly preferred an indictment against the defendant at the January Sessions of the Central Criminal Court, a. d. 1852. 1st count. For assaulting with intent to commit, &c. 2nd count. For inciting to the commission of that offence. 3rd count. For an indecent assault. 4th count. For a common assault. It further appeared, that the grand jury returned a true bill, and that an application was shortly after- wards made on behalf of the defendant to have the trial postponed until the then next Sessions which were to be holden on the 2nd July, a. d. 1852, which appli- cation was granted by the Court ; that an application was subsequently made for a writ of certiorari to remove the said indictment into the Queen's Bench, and that such writ was granted accordingly. The usual recognizances were entered into by the de^ fendant, and two gentlemen as his bail, the defendant, in the sum of 200Z., and the bail in the sum of 100/. each. Notice of trial was given, and a special jury struck at the instance of the defendant, and on the 3rd July last, a. d. 1852, the case was tried before the Lord Chief Justice at Guildhall, in the city of London, when Sir F. Thesiger (the then Attorney General), Ballantine and Brown appeared for the said defendant, when the City solicitor, acting upon such before mentioned directions from the Lord Mayor, prepared briefs, and instructed counsel to appear and conduct the prosecution, Hugh Hill, Q. C. being for the Crown. The defendant was found guilty upon the third and fourth counts of the said indictment CROWN CASES RESERVED. 81 and was then and there sentenced to be imprisoned 1853. and kept to hard labour in the House of Correction "wilson^ in and for the city of London, for six months. Case. It further appeared that the costs and charges of and relating to the prosecution of the defendant in the Queen's Bench were charged to and paid out of the funds of the Corporation of the city of London. In the ensuing Michaelmas Term judgment was signed in the Queen's Bench, and a side bar rule for the costs, and an appointment to tax the same, ob- tained and served upon the defendant's attorney. " Sir F. Thesiger, on the 12th January, a. d. 1853, moved the Queen's Bench for a rule to set aside the side bar rule. This was an indictment for an as- sault upon a boy, and after the indictment was found, it was removed into this Court by certiorari. The prosecution was conducted by the City solicitor, by the desire of the presiding alderman. He was not instructed either by the boy, or the father of the boy, to conduct the prosecution. The defendant was convicted, and a bill of costs had been delivered by the City solicitor for the costs of the prosecution. The officer of the Court postponed the taxation of the costs to afford the defendant an opportunity of taking the opinion of the Court as to whether the City soli- citor is entitled to the costs in this case, under 5 & 6 Wm. ^M. c. 11, S.3. Coleridge J. — Is there not a case where the ex- pense of the conviction was allowed ? Sir F. Thesiger. There is such a case. This is a dif- ferent case from that, because it cannot by any pos- sibility come within the terms of the act of Parliament 5 & 6 Wm. & M. c. 11, s. 3, " that if the defendant prosecuting such writ oi certiorari be convicted of the VOL. I. G 82^ CROWN CASES RESERVED. 1853, offence for which he was indicted, then the Court of ^,j_goj,.g King's Bench shall give reasonable costs to the pro- Case, secutor if he be the party grieved or injured, or be a justice of the peace, mayor, bailiff, constable, head- borough, tything-man,' churchwarden, or overseer of the poor, or any other civil oflBcer who shall prosecute upon account of any fact committed or done that con- cerned him or them as officer or officers to prosecute or present, which costs shall be taxed according to the course of the said Court." Now this is not a prosecution by " the party grieved ;" the costs are, in fact, claimed by the City solicitor. Lord Campbell C. J. — It cannot be by the party aggrieved himself. Sir F. Thesiger. No ; nor can it be in respect of "any fact which concerns any officer or officers." The prosecution directed is not on that account; the words are, or be a justice (or other persons, who are named), " who shall prosecute upon the account of any fact committed or done that concerned him or them as officer or officers." It is quite clear that this being an assault upon a boy, it cannot be a case which the Legislature could have contemplated. Lord Campbell C. J In the case to which refer- ence has been made, the Court went so far as to say, that if it was the duii/ of the person to prosecute, it was a prosecution the costs of which would be allowed. Sir F. Thesiger. Then that would apply, in fact, to every case in which a justice of the peace directed a prosecution. It is difficult to see that there can be any qualification or exception. It is submitted, that what the Legislature intended was this, that if the pro- secution is by the party grieved, then he shall have his costs ; or, if it is for any offence which concerns the party as an officer to prosecute, and he prosecutes accordingly, then he shall have his costs. CROWN CASES RESERVED. 83 Lord Campbell C. J. — Take a rule to shew cause. 1853. The case referred to is in 15 Q. B. 1060. Wilson's JRule nisi. Case. On thte 27th January, cause was shewn against the rule for setting aside the side bar rule ; Lord Camp- bell C. J., Coleridge J., Erle J., and CROMPToir J., b^ing the Judges present. Hugh Hill Q. C, contended that the prosecutor was entitled to his costs, under the statute 5 & 6 Wm. & M. c. 11, s. 3. He relied upon a recent case in which costs had been allowed by this Court, where the prosecution had been instituted by the Guardians of the West London Union, 15 Q. B. 1060. Coleridge J. referred to a case in this Court when he was at the Bar, of a prosecution, for disinterring a body for the purpose of dissection, where the expenses of the prosecution naviiig been defrayed by public subscription, it was held that the case was not withiii the act of Parliament. He had forgotten the name of the case and where it was reported ; but he re- membered the fact, having been one of the counsel who argued it (a). Hugh Hill Q. C. argued that the case was within the 3rd section of 5 & 6 Wm. & M. c. 11, and cited Mig. V. Waidegrave ; Hex \. Edmonds, 5 B. & Adol. 407, note (a). In Rex v. Kettleworth, 5 T. R. 33, it was held, that a justice who indictied d road for being out of repair, the indictment being afterwards re- (a) The case in his Lordship's prosecutors (near^tives of the memory was Rex v. Cook, I Man. deceased) incurred no expense, & Ryl. 526, in which it was held they were not entitled to costs as that where the expenses of an in- prosecutors within 5 Wm. Sf M. c, dictment for a misdemeanor (dis- 11, s. 3. Mr. Coleridge was for the interring a body for the purposes defendant, on the argument of the of dissection) were defrayed by rule in the Queen's Bench, subscription, and the nominal G 2 84 CROWN CASES RESERVED. 1853. moved by certiorari, was entitled to costs upon the Wilson's" coDviction of the defendant. The present is even a Case. stronger case than that. Sir F. Thesiger was not called upon. Lord Campbell C. J.— It is to be regretted that the Court has no power to award the prosecutor his costs in this case. The prosecution was a most laud- able one, but the decision of the Court must be regu- lated by the act of Parliament and the rules of law. It is admitted that unless the case be within the stat. 5 & 6 Wm. & M. c. il, s. 3, the Court would have no power to order the costs to be paid. On looking at the statute it appears that the object of the enactment was to indemnify the prosecutor from the costs which he must pay himself, unless paid by the party convicted. Here, however, the costs would not be paid by the prosecutor, but they would come out of the funds of the city of London. In the case 15 Q. B. 1060, relied upon by the Crown, the guardians of the West London Union could not have charged the expenses of the pro- secution either upon the rates of the parish or the union. The object of the statute being to indemnify the prosecutor from the liability which he would other- wise incur to pay the costs out of his own pocket, and the Lord Mayor not being in this case personally liable, the case is not within the scope of the act of Parliament, and the rule to rescind the side bar rule for the taxation.of costs must be made absolute. Coleridge J., Erle J., and Crompton J., con- curred. CROWN CASES RESERVED. 85 REGINA V. JOHN HENRY NEWMAN, D.D. '852. This was an application for a wew; trial on a criminal i- Where a information (a) for libel filed against tlie defendant by means to order of the Court. The information was in form and ™^tri°fi" effect as follows : — tl>e case of a In the Queen's Bench, Michaelmas Term, 15 Vict, formation, A.D. 1851. Middlesex. the motion must be Be it remembered, that C F. Robinson Esquire, made, or an coroner and attorney of our lady the Queen in the that the de- Court of Queen's Bench, who prosecutes for our said tendslo*"' lady the Queen in this behalf,comes here into the said move, given Court at WestmiMster, the 21st day of November, in during the the fifteenth year of the reign of our said Lady, and ^a^*^°"5j gives the Court to understand and be informed that and it will be too late T. 1 ■ r 1 * ^ when the (a) Rule nisi for the information Nov. 1851 ; made absolute 21st defendant is moved for by Sir F. Thesiger, 4tfa Nov. 1851. brought up for judg- ment. 3. Evidence that the identical charges conveyed in a libel had, before the time of composing and publishing the libel, appeared in another publication, which was brought to the prosecutor's knowledge, but against the publisher of which he took no legal proceedings, is not admissible under a plea of justification under stat. 6 & 7 Vict. c. 9€, S.6. 3. A document under the seal of the Court of tJie Holy Office or Inquisition of Rome, but apparently drawn up by the notary whose name is attached to it, from a record in that Court, but which was not set forth in the document, is not evidence to prove the grounds of a judgment pronounced by that Court, the ratio decidendi not being stated, although it is admissible in support of an allegation in a plea of justification that such a judgment has been pronounced. 4. Where a plea of justification under stat. 6 & 7 Vict. e. 9€, s. 6, contains several charges and the defendant fails to prove any of the matters alleged in such justification, the jury must, of necessity, find a verdict for the Crown, i. e. that the defendant has not proved the whole plea. 5. Under the stat. 6 & 7 Vict. c. 96, s. 6, the Court is bound to consider whether the guilt of the defendant convicted by a jury, is aggravated or mitigated by the plea and the evidence to prove or disprove the same, and to form its own conclusion upon the whole case. 7. Afi[idavits explaining the defendant's reasons for having placed certain allegations injurious to the prosecutor in his plea of justification, in support of which no evidence was given at the trial are receivable in mitigation of punishment, but not as proving the truth of the charges made in them. 8. But where a document purporting to have been an official record of the conviction of the prosecutor, before a Foreign Police Court was annexed to an affidavit, for the purpose of shewing the honafdes of an allegation in the plea of justification : Held, inad- missible, as its admission would, in ett'ect, put the prosecutor on his trial without his bein^ able to maks defence. 86 CROWN CASES RESERVED. 1852. John Henry Newman, Doctor of Divinity, late of the Doctor parish of Aston, in the county of Warwick, contriving Newman's and wickedly and maliciously intending to injure and vilify one Giovanni Giacinto Achilli, and to bring him into great contempt, scandal, infamy, and disgrace, on the 1st of October, a.d. 1851, did falsely and mali- ciously compose and publish a certain false, scandalous, malicious, and defamatory libel containing divers falsCj, scandalous, malicious, and defamatory matters con- cerning the said Giovanni Giacinto Achilli, that is to say (a) — " And in the midst of outrages such as these, my brothers of the oratory, wiping its mouth and clasp- ing its hands, and turning up its eyes, it trudges to the Town Hall to hear Dr. Achilli expose the Inquisition. Ah ! Dr. Achilli, I might have spoken of him last week had time admitted of it. The Protestant world flocks to hear him because he has something to tell of the Catholic church. He has something to tell, it is true ; he has a scandal to reveal, he has an argu- ment to exhibit. It is a simple one, and a powerful one, as far as it goes— and it is one. That one argu- ment is himself; it is his presence which is the triumph of Protestants ; it is the sight of him which is a Catho- lic's confusion. It is, indeed, our confusion that our Holy Mother could have had a priest like him. He feels the force of the argument, and he shews himself to the multitude that is gazing on him. ' Mothers of families,' he seems to say, 'gentle maidens, innocent children, look at me, for I am worth looking at. You do not see such a sight every day. Can any church live over the imputation of such a production as I am ? I have been a Roman priest and a hypocrite ; I have been a profligate under a cowl ; I am that Father Achilli who as early as 1826 was deprived of my faculty to lecture for an offence which my superiors did their best to (o) The libel was set out with innumdos which are here omitted. CROWN CASES RESERVED. 87 conceal, and who in 1827 had already earned the 1862. reputation of a scandalous friar. I am that Achilli DoctoT" who, in the diocese of Viterho in February, 1831, Newman'* robbed of her honour a young woman of eighteen, who In September, 1833, was found guilty of a second such crime in the case of a person of twenty-eight, and who perpetrated a third in Juli/, 1834, in the case of another aged twenty-four. I am he who afterwards was found guilty of sins similar, or worse, in other towns of the neighbourhood. I am that son of St. Dominic^ who is known to have repeated the offence at Capua in 1834 and 1835, and at Naples again in 1840, in the case of a child of fifteen. I am he who chose the sacristy of the church for one of these crimes, and Good Friday for another. Look on me, ye mothers of England, a confessor of Popery, for ye * ne'er may look upon my like again.' I am that veritable priest who, after all this, began to speak against not only the Catholic faith but the moral law, and perverted others by my teach- ing. I am the Cavaliere Achilli who then went to Corfu, made the wife of a tailor faithless to her hus- band, and lived publicly and travelled about with the wife of a chorus ^nger. I am that professor in the Protestant college at Malta who, with two others, was dismissed from my post for offences which the autho- rities could not get themselves to describe; And now, attend to me such as I am, and you shall see what you shall see about the barbarity and profligacy of the inquisitors of Rome.' You speak truly, O AchUli, and we cannot answer you a word. You are a priest ; you have been a friar ; you are, it is undeniable, the scan- dal of Catholicism and the palmary argument of Pro- testants, by your extraordinary depravity. You have ■been, it is true, a profligate, an unbeliever, and a hypocrite. Not many years passed of your conventual life, and you were never in choir, always in private 88 CROWN CASES RESERVED. ^^^^- houses, so that the laity observed you. You were Doctor ^ deprived of your professorship, we own it ; you were Case^."^ prohibited from preaching and hearing confessions; you were obliged to give hush money to the father of one of your victims, as we learn from the official report of the police at Vite7-bd. You are reported in an official document of the Neapolitan police to be * known for habitual incontinency ;' your name came before the civil tribunal at Corfu for your crime of adultery. You have put the crown on your oflFences by, as long as you could, denying them all; you have professed to seek after truth, when you were ravening after sin. Yes, you are an incontrovertible proof that priests may fall and friars break their vows. You are your own witness; but while you need not go out of yourself for your argument, neither are you able. With you the argument begins ; with you, top, it ends — the beginning and the ending you are both. When you have shewn yourself, you have done your worst and your all ; you are your best argu- ment and your sole. Your witness against others is utterly invalidated by your witness against your- self. You leave your sting in the wound ; you can- not lay the golden eggs, for you are already dead." Which said false, scandalous, malicious and defama- tory libel the said John Henry Newman did then publish to the great damage, scandal and disgrace of the said Giovanni Giacinto Achilli, in contempt of our said lady the Queen, to the evil and pernicious example of all others in like case offending against the peace of our said lady the Queen her Crown and dignity. Whereupon the said coroner and attor- ney of our said lady the Queen, who for our said lady the Queen in this behalf prosecuteth, prayeth the consideration of the Court here in the premises, and that due process of law may be awarded against the CROWN CASES RESERVED. 89 said John Henry Newman in this behalf to make him 1852. answer to onr said lady the Queen touching and con- o^^tor cerning the premises aforesaid. Newman's To this information the defendant pleaded two pleas ; — the second framed under 6 & 7 Vict. c. 96, s. 6. 1st plea. In the Queen's Bench, Michaelmas Term, 15th Vict. 1851. " And the said John Henry Newman appears here in Court by Henry Lewin, his attorney, and the said information is read to him, which being by him heard and understood, he complains to have been grievously vexed and molested under colour of the premises, and the less justly because he saith that he is Not Chiilty of the said supposed offences in the said information alleged," &c. 2nd plea. And for a further plea (a), the said John Henry Newman saith : — 1. That before the composing and publishing of the said alleged libel, to wit on the 1st of January, 1830, &c., the said G. G. Achilli was an infidel, to wit, at Westminster, in the county of Middlesex. 2. That the said G. G. Achilli was and exercised the functions of a priest of the church of Rome at Viterbo, Capua, Naples, and elsewhere, and while such priest, &c., he secretly abandoned and disbelieved the peculiar doctrines of the church of Rome, to wit, &c., and, though outwardly professing chastity and purity of life, he committed the several acts of forni- cation, adultery, and impurity hereinafter mentioned, and by reason thereof was a hypocrite. 3. That the said G. G. Achilli was a profligate under a cowl in that, being a member of the order of St. Dominic or Friars' Preachers, and bound by (a) These pleas were filed SOth to, as being too general in their December, 1851. They were de- statements, and then amended as murred to, and were amended. above. They were a second time demurred 90 CROWN CASES RESERVED. 1852. vows of chastity, poverty, and obedience, ^he com- Doctor mitted the several acts of fornication and isapurity ^"ca^et"'" hereinafter mentioned. 4. That the said G. G. Aehilli had a faculty to lec- ture at Vit^bo, of which faculty, as early as 1826, he was, for certain misconduct, deprived by the superior of the order, one F. Velzi, but which misconduct was concealed and suppressed by the said superior, and is to the said J. H. Newman unknown. 5. That the said G. G. Aehilli in 1826 was a friar of the order of St. Dominic in the convent of Gradi, at Viterbo, and, contrary to his duty as such friar, neglected to attend Divine service in the choir, and without the permission of his superior had frequent intercourse with persons not belonging to the said order, and so in 1827 had already earned the reputation of a scandalous friar. 6. That the said G. G. Aehilli, in February 1831, at Viterbo, debauched, seduced, and carnally knew one Elena Valente, then being chaste and un- married, and of the age of eighteen years, and then and there robbed her of her honour. 7. That the said G. G. Aehilli, at Viterbo, de- bauched, &c., one Mosa de Allessandris, then being chaste and unmarried, of the age of twenty-eight years, and robbed her of her honour, and on the 1st of September, 1833, at Viterbo, was found guilty thereof, upon due inquiry before the bishop of Vi- terbo. 8. That the said G. G. Aehilli, on the 1st of July, 1834, at Viterbo, debauched, &c., a certain other young woman of the age of twenty-four years, whose name is to the said J. H. Newman unknown, and then and there robbed the said woman of her honour. 9. That the said G. G. Aehilli, at Viterbo, and in CROWN CASES RESERVED. 91 the neighbourhood, committed sins similar or worse, 1852. and debauched, &c. one Vincema Guerra, then being Doctor chaste and unmarried, also another woman then being Newman's chaste and unmarried, whose name is to the saicj J. H. Newman unknown ; and that the said G?. G. Achilli was afterwards, at Rome before the Court of the Holy Office, or Inquidtion, found guilty of the said several offences. 10. That the said G. G. Achilli, on the 1st of Ja- nvary, 1835, being a friar of the order of St. Dominic, at Capua, debauched, &c. a certain other woman, being chaste and unmarried, whose name is to the said J. H. Newman unknown. 11. That the said G. G. Achilli, on the 1st of January, 1840, at Naples, debauched, &c. one Maria Giovanni Principe, a female child of fifteen years of age, &c. 12. That the place where the said G.G. Achilli debauched the said Rosa dcAllessandrisy/aa thesacristy of the church of Gradi, at Viterbo, and that the day on which he debauched the said female child at Naples was Good Friday, in the year 1840. 13. That the said G. G. Achilli being a priest of the church of Rome, at Rome, Capua, Naples, and Malta, spoke and taught against the truth of divers doctrines of the Catholic faith, to wit, &c., and also against the laws of morality, to wit, the moral obliga- tion of chastity and continence, and thereby did per- vert one Luigi De Sanctis, one Fortunato Saccares, the said Rosa de Allessandris, the said Elena Valente, and the said Maria Giovanni Principe, from their belief in such doctrines and obedience to such laws. 14. That on the 2nd of July, at Corfu, the said G. G. Achilli debauched and made faithless to her husband one Marianna Crisaffi, the wife of one Nicob 92 CROWN CASES RESERVED. _1852. Garamoni, a tailor; and afterwards, on the 1st of ~Do^~ August, 1843, at Corfu, the said G. G. Achilli publicly '^ U^e^"'^ cohabited and committed adultery with one Albina, the lawful wife of Vincenzi Coriboni, a chorus singer, and publicly travelled about with her from Corfu to Zante, 15. That on the 1st o? May, 1848, and for twelve months preceding, the said G. G. Achilli held the office of Professor of Theology in a Protestant college, to wit, St. Julian's College, at Malta, and during that period hindered and frustrated an investigation then pending before Messrs. Hadfield and Brien, officers of the college, concerning charges of fornication and other gross immorality against one Fortunato Saccares, and one Fietro Leonini, in which charges the said G. G. Achilli was also implicated, by sending away the said Fortunato Saccares to Sicily, and thereupon the Earl of Shaftesbury and others, the committee of the said college, dismissed the said G. G. Achilli from his said office of professor, and that the said G. G. Achilli was dismissed as well for hindering and frus- trating the said investigation as far as the said several acts of sin, fornication, and immorality hereinbefore mentioned, but which the said committee were then unwilling to, and have still forborne, to state and describe, and cannot get themselves to describe speci- fically. 16. That the said G. G. Achilli, in the years 1847, 1850, and 1851, being resident in London, did attempt to seduce and debauch one Harriet Harris, then being chaste and unmarried, and did conduct himself lewdly and indecently as well to the said Harriet Harris as to one Jane Legg, one Sarah Wood, one Catharine Gorman, and one Mademoiselle Fortay; and by reason thereof, and of the said several other matters herein- CROWN GASES RESERVED. 93 before set forth, the said G. G. AckiUi.was guilty of 1852. extraordinary depravity, and was and is the scandal of Doctor Catholicism. Newman's Case. 17. That the said G. G. Achilli was a profligate by the commission of the said acts of profligacy, and also had been and was an unbeliever and a hypocrite. 18. That the said G. G. Achilli, at the Convent of Gradi, at Viterbo, in the year 1836, continually absented himself from the choir of the chancel of the said convent during Divine service, and was a frequenter of private houses, contrary to the rules of the said order of St. Dominic, and had thereby given offence to divers lay persons not members of the said order whose names are to the said /. H. Newman unknown. 19. That on the 16th day of June, 1841, at Borne, by the Court of the Holy Office, or Inquisition, the said G. G. Achilli was suspended from the celebration of mass, and disabled from any cure of souls, and from preaching and hearing confessions, and from exer- cising the sacerdotal ofiice. 20. That after the said G. G. Achilli had de- bauched the said Rosa de Allessandris, at Viterbo, of the age of twenty-eight years, on the 1st of September, 1833, he was obliged to give the sum of fifty scudi (10^.) to the father of the said young woman as damages, and that by the ofiicial reports of the police at Viterbo, it is declared that the said G. G. Achilli had given the said money as hush money to the said father of the said young woman. 21. That on the Ist ai January , 1839, in and by an official document or report of the officers of police at Naples, &wA being among the archives and documents of the said Neapolitan police, the said G. G. Achill was reported and declared to be known for habitual incontinency at Naples. 94 CROWN CASES RESERVED. _1858. 22. That after the said G. G. Achilli had de- Doctor bauchied the said Marianna Crisaffi, the wife of the ^"'cale."'^ said Nicolo Garamoni, the tailor, on the 3rd of July, 1843, the name of the said G. G. Achilli came before the civil tribunal at Corfu in respect of the said crime of adultery — that is to say, that Nicolo Garamoni, by Antonio Capello his advocate, presented a petition to the Court, praying that a petition presented by his said wife Marianna for alimony should be rejected, upon the ground that the said Marianna had been guilty bf adultery with the said G. G. Achilli, and offered to prove the same by lawful Witnesses. 23. That the said G. G. Achilli, on the 1st of January, 1850, aiid on divers other days, though knowing himself to have been guilty of the sevei-al offences aforesaid, denied them all ; and that the said G. G. Achilli, when he committed the said offences, and thereby was, in fact, ravening after sin, did pro- fess and pretend to be seekiiig after truth ; and that by reason of the said ofl"ences the said G. G. Achilli was and is a proof that priests may fall and friars break theit vows ; and that by reason of his said offences the said G. G. Achilli was and is unworthy to be believed in respect of the charges by him made against the doctrines and discipline of the church of Home, and the persons professing the same. And so the said J. If. Newman says that the said al- leged libel consists of allegations true in substance and in fact, and of fair and reasonable comments thereon. "And the said J. IT. Newman further saith, that at the time of publishing of the said alleged libel, it was for the public benefit that the matters therein con- tained should be published, because, he says, that great excitement prevailed and numerous public discussions had been held in divers places in England on divers CROWN CASES RESERVED. 95 matters of controversy between the churches of England 1852. and Home, with respect to which it was important the Doctor truth should be known ; and inasmuch as the said Newman's G. G. Achilli took a prominent part in such discus- sions, and his opinion and testimony were by many persons appealed to and relied on as of a person of character and respectability, with reference to the matters in controversy, it was necessary, for the pur- pose of more effectually examining and ascertaining the truth, that the matters in the said alleged libel should be publicly known, in order that it might more fully appear that the opinion and testimony of the said G. G. Achilli were not deserving of credit or con- sideration by reason of his previous misconduct ; and also because the said G. G. Achilli had been and was at Birmingham, Leamington, Brighton, Bath, Cam- bridge, Huntingdon, Winchester, and elsewhere, endea- vouring by preaching and lecturing, to excite discord and animosity towards her Majesty's Roman Catholic subjects and against the religion and practice of persons professing the Roman Catholic religion, against the peace of our said lady the Queen, and it was of im- portance and conducive to the diminishing of such discord and animosity, and to preserve the peace of our said lady the Queen, that the said matters should be published and known to all the liege subjects of out said lady the Queen ; and also because the said G. G. Achilli had improperly pretended to such subjects that he was a person innocent of the said crimes and mis- conduct, and that he was greatly injured by the said foreign ecclesiastical tribunals, and that he had been persecuted and oppressed by the Roman Catholic Church and by the bishops and authorities thereof on account of his religious opinions, and that he was a martyr on account of his religious opinions, and by means of such improper pretences was endeavouring and was likely to obtain credit and support from such 96 CROWN CASES RESERVED. 1852. subjects, by reason of their being ignorant of the said Doctor misconduct of thesaid G. G. Achilli, it then became and ^'^^MAN's ^as of pubh"c importance and for the public benefit to ex- pose the impropriety and want of truth of such pre- tences, and to prevent the said subjects being deceived and misled by such pretences, and to have the real character of the said G. G. Achilli and his conduct made known to such subjects and the public in general. And, also, because many benevolent persons and the public generally were at that time disposed to shew kindness and assistance to the said G. G. Achilli on the ground of his having been harshly and unjustly treated by the said Court of the Holy Office, or Inquisition, and by the said Superior of the said Order of St. Dominic and on the ground that he was a person deserving of kindness and assistance, and it was for the benefit of the public that the said matters should be published for the purpose of shewing that the said G. G. Achilli had been treated fairly and properly and according to his deserts by the said Court and the said Superior, and that the said G. G. Achilli is a person wholly undeserving of kindness and assistance ; and because the said G. G. Achilli had obtained, and was likely again to obtain, preferment and employment of public trust and confidence which he was unfit to obtain by reason of the said matters, and which he had obtained, and was likely to obtain, only by reason of the said matters being unkno\yn and unpublished. And so the said /. H. Newman says he published the said alleged libel as he lawfully might for the causes aforesaid, and this the said J. H. Newman is ready to verify. Wherefore he prays judgment, &c." Replication, ^i/ary Term, 16th Fief. 1852. The said C. F. Robinson Esq., coroner and attorney of our said lady the Queen, in the Court of Queen's Bench, who prosecutes for our lady the Queen as to CROWN CASES RESERVED. ^7 the plea first pleaded, puts himself upon the country, 1852. and as to the plea secondly pleaded saith that the said Doctor John Henry Newman of his own wrong, and without the Newman's cause in his said plea alleged, composed and published the said libel as in the isaid information alleged, &c. Issue joined, Hilary Term, 16th Vkt., 1852. The case came on for trial before Lord Campbell C. J. and a special jury (a) at the Middlesex Sittings after TrinityTerm, 21st Jwwe, 1852. The printing and publishing of the libel were admitted by the defendant; the prosecutor admitting that if the allegations in the plea of justification were true, it was for the public bene- fit that the supposed libel was published. The jury found the defendant guilty on the first count ; and they found that the only part of the plea of justification proved was the nineteenth, respecting Dr. Achilli being deprived of his professorship and prohibited from preaching and from hearing confessions by the Inquisition. The Lord Chief Justice^ thereupon, directed the verdict to be entered for the Crown on both issues. On the 22nd November, a.d. 1852, Lord Campbell C. J., CoLERinGE J., WiOHTMAN J., and Erle J., being the Judges sitting, and the defendant being present in Court, Sir F. Thesiger (Attorney General) with whom was Ellis, appeared for the Crown, and prayed judgment upon the defendant. Sir ^. Cockburn, Wilkins Serjt., Bramwell Q. C, Addison, and Badeley were counsel for the defendant. Lord Campbell C. J. said it was necessary to read the evidence through, in order that the Court might be in possession of all the circumstances of the case. (a) The whole of the special the Attorney General prayed a jurors summoned not appearing, tales. VOL. I. H 98 CROWN CASES RESERVED. 1852. His lordship then read the libel as set out in the in- jj^jjjjj, formation, the pleas (a), and the whole of the evi- Newman's dence, and stated the finding of the jnry. Case. Sir A. Cockburn moved for a new trial on the ground of the rejection of evidence, misdirection, and that the verdict was against evidence. Sir F. Thesiger. The invariable rule has been for a defendant intending to move for a new trial to intimate his intention to the Court during the first four days of term. Lord Campbell C. J.— That certainly is the usual course. Sir ^. Cockburn. The rule referred to applied to civil cases, because if the unsuccessful party did not move within the four days the other party would have judgment ; but in this case there could be no judg- ment until the defendant was brought up. In the case of M. V. Holt (5 T. R. 436), it was held that if after the reading of the Judge's notes it should appear that justice had not been done, the Court would grant a new trial. Their lordships, the Judges, then conferred together for some time. Lord Campbell C. J. — Great inconvenience would result from the introduction of the practice proposed, but^ as there has been no general rule laid down, the Court will not shut out the defendant from making his application ; but it must be understood that, in future, unless an intimation is given within the first four days of term, it will be too late. Sir A. Cockburn then proceeded to move for a new trial on the grounds intimated. At the trial it was proposed to put in evidence the Dublin Review for (a) See ante, p. 85, 89. CROWN CASES RESERVED. 99 June 1850 in order to shew that the charges contained in the libel had been published a considerable time ""^Doctor" before the publication of the libel, with specific Newman's references to facts and dates; to shew that the prose- cutor had had ample opportunity of meeting the charges, and also to shew that those charges had not been got up, after the publication of the libel, for the justification of Dr. Newman. The proposed evidence was rejected by the Lord Chief Justice. It ought to have been admitted. Lord Campbell C. J. — ^The issue was, whether the charges were true or false, and I thought, at the time, that it would be unfair to the prosecutor that, upon that issue, evidence should be admitted to shew that those charges had been made against him at a prior time. Such evidence might have made a wrong im- pression on the minds of the jury. Sir A. Cockburn. There was a conflict of evi- dence between Dr. Achilli and the other witnesses, and, in weighing the conflicting evidence, it was worthy of the consideration of the jury that Dr. Achilli had been acquainted with the charges con- tained in the Dublin Review, and yet had submitted to them. Erle J. — Do you put it as an universal proposition that the publication of a former libel is admissible in evidence as a justification of a subsequent one ? Sir^. Cockburn. No, but the evidence was admis- sible to shew which side was worthy of credit ; and to shew that the prosecutor had tacitly acquiesced in the truth of the clwi^es advanced in the libel. Erie J. — That argument would apply to every libel previously circulated containing the same imputations, the publishers of which had not been prosecuted. CoLEaiDGE J. — I am entirely of the same opinion H 2 100 CROWN CASES RESERVED. 1852. with Lord Campbell upon tWs point; — the ques- Doctor titJ" was, the truth of the charges. The statements Newman's of third parties were not evidence. It has been said that it was probable that this libel was true, be- cause another libel had been published by another person. Upon that principle it might have been argued that the statements in the Dublin Review were true because they had appeared previously in some other publication. Such evidence is far too vague to be received. The fallacy of the learned counsel's argument consists in the prosecutor's alleged " sub- mission " to the previous libel. The utmost that can be said is that he did not prosecute the parties. But that might have arisen from various considerations. He might not be able to fix on a particular person, or upon any one of character, or he might be prevented from proceeding by his poverty, or by a variety of other circumstances. Beside, it is not always con- sidered expedient to institute proceedings in respect of the first charge. WiGHTMAN J. — If the defendant were at liberty to give evidence for the purpose of shewing that a similar libel had been previously published in other works, and that no prosecution was instituted against the publishers, and thus leading to an inference that the charges in the libel were true, it would lead to inquiries which would hardly be satisfactory ; and I think such evidence would be infinitely too vague. Sir A. Cockburn. In the next place the jury were misdirected in respect to the document produced from the Court of the Holy Office at Borne. It was a docu- ment, coming from the proper office for framing a judgment of that Court, and issued under the seal of the Court, and must be taken to be prm^i /acie evi- dence of the truth of the facts which it contained. CROWN CASES RESERVED. 101 The learned counseL here read the document (a), which was as follows: — 1852. /, (a) The following translation of the above was given in evidence on the trial : — " I, the undersigned notary of the Holy Roman and Universal Congre- gation of the Inquisition, do testify that after a complete investigation of the proceedings instituted in the Holy Office against Father Hyacinth AchUli, priest, religious professor of the Order of Preachers, it is proved from the same acts that the said Achilli, having been examined by the established autho- rities confessed himself guilty of having held carnal intercourse whilst he was living in the monas- tery of Viterbo with many women j also of having deflowered another, who was a virgin, in the city of Mount FaUscuej and of having carnally known two other women at Capua. Moreover, it is dis- covered that he made another girl at Naples a mother ; and that the Superior of the Order of Preachers paid fifty scudi to another woman who had been corrupted by the • same Achilli, in order to make amends for the injuries done. Lastly, I attest that on account of the crimes of the above-named and other crimes, of which mention is made in the acts, after mature and deliberate examination of the heavy charges resulting from the acts, after' having weighed the charges put forth, and considered other matters according to custom, and after having mercifully ac- cepted the confession of the ac- cused himself, and of his own de- claration of the following tenor : — ' I do not ask not to be chastised ; nay, rather, I desire to bo severely dealt with on ray own showing, according as justice demands. I will receive with resignation what- ever punishment may be deter- mined upon, and supposing there were wanting sufficient reason for proceeding with greater rigour, I desire that confession be consi- dered sufficient grounds for pu- nishing me as the said tribunal shall think best.' Their Eminences the Inquisitors General, on Wed- nesday, June I6th, 1841, in the Convent of Santa Maria Supra Minerva, decreed that the accused Father Hyacinth Achilli, after having been for ever suspended from the celebration of the sa- crifice of Mass and for ever disabled from any sort of direction of souls, and preaching the Word of God, and deprived of active and passive voice in the government of his Order, and after having had salutary penances imposed upon him, be condemned to remain for three years in some religious house of his Order of the most strict ob- servance, " Given in testimony of all these facts from the Chancellor's Office of the Holy Office, on this day 22nd September, 1851." The instrument was sealed at the signature with a large seal, bear- ing the insignia of the triple crown supported by St. Peter and St., Paul, &c., with these words on the margin, " Si(/il S. Roman, et Univers. Inquisitionis," in Roman capitals. At the foot it was stamped with the seal of the British Con- sulate, Rome. Doctor Newman's Case. 102 CROWN CASES RESERVED. 1853. " Testor ego infrascriptus notarius S. Congregationis ij„^t„j RomansB, et Universalis Inquisitionis, quod perquisitis Newman's actis assumptis ill S. Officio contra sacerdotem P. Hiacynthum Achilli religiosum professum ordinis Praedicatorum, constat ex eisdem actis, ipsum Achilli, Gonstitutis judicialibns excussum, fuisse reum confes- sum de carnali copula, dum in ccenobio Viterbiensi moraretur, cum pluribus fceminis habita, item de de- floratione alterius virginis in civitate Montis Falisd, aliasque duas mulieres Capuee carnaliter cognovisse. Eruitur qaoqne aliam puellara Neapoli matrem red- didisse ; ac superiorem ordinis Praedicatorum scutato quinquaginta alteri fceminae ab eo^eraAcMlU corruplse pependisse ad damna illata sarcienda. '* Denique fidem facio, quod ob memorata crimina, et alia de quibus in actis maturo prius discusso examine gravaminum ex actis resultantium, perpensis defensi- onibus, aliisque ex more consideratis, nee non benigne excepta ipsius inquisiti confessione, ejusdemque decla- ratione sequentis tenoris :---* Nonchiedodinonesser gas- tigato, auzi amo — che si proceda severamente sul conto mio in quel modo la giustizia esige. Hicevero, con rassig- nazione qualunque disposizione venga emanata, ed ove mancasse qualche ragione a procedere con piu rigore, la mia confessione sia hastante a punirmi come meglio ere- dera il S. Tribunale.' — Emi. Inquisitores Generales, Fer. IV., die 16 Junii, 1841, in Conventu S. Marice supra Minervam decreverunt: InquisitusP.^«ac^wecem6er 1851 and January 1852 ; that he had no object and no instructions but to elicit the truth in every instance and that no attempt was ever made or contemplated by him or as he verily believes by any other person whomsoever either in England or liaty or Malta or elsewhere on the par4 of the said VOL. I. *^ Case, 130 CROWN CASES RESERVED. 1853. defendant to suborn witnesses or to present any other Doctor *'^^" ^ ^"""^ ^"d faithful statement of the several facts Newman's as thev occurred. That from the information col- lected by this deponent he verily believed that all the charges mentioned or referred to in the said defend- ant's plea so far as they relate to the places visited by this defendant and comprised in this deponent's in- vestigation were capable of being proved and would have been proved on the trial of this information if the attendance of witnesses could have been procured. That in the month of December 1851 he saw and conversed with Mosa de Alessandris now the wife of Dominico de Carolis at Viterbo and afterwards in Rome and that she then and there stated to him that she had been seduced by the above-named G. G. Achilli and had become pregnant by him had given birth to a child which died shortly afterwards. That the said Rosa de Alessandris made a deposition to that effect in Rome before a Judge of the Criminal Court there but she absolutely refused to come to England by reason of her being then pregnant and that she could not leave her husband and family for the period she might be required to stay in England" Another afSdavit made by James Vincent Harting, was then read. It was as follows: — " That the paper writing marked C 7 now produced and shewn to him was delivered to him at Naples at the oflSce of the minister of ecclesiastical affairs for the kingdom of the two Sicilies and is a true copy of an original document then and as this deponent verily believes still remaining in the said office the same having been carefully examined and compared by him with the said original and that the said original was pro- duced to this deponent by the said minister the Chevalier Ferdinando J'roja and that the signature CROWN CASES RESERVED. 131 " Cav." Ferdindo Troja set and subscribed to the said 1853. paper writing as the minister certifying the same is of Doctor the proper handwriting of the said Chevalier Ferdi- Newman's nando Troja who wrote the same at the request and in the presence of this deponent And this deponent saith that he verily believes and has no doubt what- ever that the document so produced to him as afore- said was and is the original which it purports to be and that the facts therein stated were and are true {a)." The writing annexed to the affidavit being about to be read, — Sir F. Thesiger strongly objected to its re- ception. The eflFect of admitting such documents would be again to put Dr. Achilli on his trial without giving him a chance of being heard in his defence. The Judges having conferred together for a few minutes, Lord Campbell C. J. said they were unani- mously of opinion that the paper was inadmissible. Other affidavits were then read, and the counsel for the defendant and the Crown having been heard, the defendant was sentenced (b) to pay a fine of One hun- dred pounds to the Queen and to be imprisoned in her Majesty's prison till the fine was paid. Sir F. Thesiger then called the attention of the Court to the question of costs, to which he had ad- verted when the rule nisi for a new trial was dis- charged. His application was that the prosecutor should be allowed the costs of the argument on the application for the new trial. Lord Campbell C. J. — The act of Parliament (c) merely says, that if the issue be found for the prose- (a) See the 21st para{;raph in (c; 6 & 7 Vict. c. 96, s. 8, And the plea of justification, p. 93. be it enacted. That in the case of (b) The sentence of the Court any indictment or information by a was pronounced by Coleridge J. private prosecutor for the publica- K 2 132 CROWN CASES RESERVED. 1853. cutor he shall be entitled to recover from the defendant the costs sustained by the prosecutor hy reason of such The costs will be taxed in the usual way, and Doctor Newman's plea. the master will use his discretion as to the costs sus- tained by the prosecutor in respect of the plea of justi- fication ; and then it will be open to either part}' to raise this question before the Court. At present the Court cannot interfere. tion of any defamatory libel, if judgment shall be given for the defendant, he shall be entitled to recover from the prosecutor the costs sustained by the said de- fendant by reason of such indict- ment or information ; and that upon a special plea of justification to such indictment or information, if the issue be found for the pro- secutor, he shall be entitled to recover from the defendant the costs sustained by the prosecutor by reason of such plea, such costs so to be recovered by the defend- ant or prosecutor respectively to be taxed by the proper officer of the Court before which the said indictment or information is tried. 1853. RICHARD SILL v. THE QUEEN. The indict- Writ of Error in the Queen's Bench. The de- raUhS-^ fendant was tried in August, a. d. 1852, before the fendantby Recorder of London, at the Central Criminal Court, and was found guilty by the jury (a). The first count in the indictment stated — " That Richard Sill late of the parish of Saint Paul Covent false pre- tences did unlawfully obtain from B. two Bills of Exchange, for the pay- ment of 15U2. (a) See Reg, v. Sill, ante, p. 10. respectively, and one Bill of Exchange for the payment of 2502., with intent to cheat and defraud him the said B. : Held, bad on writ of Error, as it did not appear who was the owner of the property so alleged to have been obtained by false pretences ; the stat. 14 & 15 Vict. c. 100, not altering the law, as settled prior to that act, that in an indictment for obtain- ing money by false pretences it was as necessary to state the ownership of property as in a case of larceny. CROWN CASES RESERVED. 133 Garden in the county of Middlesex Gentleman on the 1853. seventh day of March in the year of our Lord One ^^iZJa thousand eight hundred and fifty-two at the parish of Case. Saint Martin in the Fields in the county of Middlesex unlawfully knowingly and designedly did falsely pre- tend to one Henry Broome that the said Bickard Sill had had an interview with the Secretary of State respecting the trial of one John Broome the brother of the said Henry Broome for certain offences and mis- demeanors with which he the said John Broome then stood charged and had ascertained from the said Secretary of State that the said John Broome would if convicted of the said offences and misdemeanors be transported by means of which said false pretences the said Richard Sill did then and there unlawfully obtain from the said Henry Broome two Bills of Ex- change of the value and for the payment of one hundred and twenty pounds respectively and one Bill of Exchange of the value and for the payment of two hundred and fifty pounds with intent then and there to cheat and defraud him the said Henry Broome of the same Whereas in truth and in fact the said Richard Sill had not had an interview with the Secretary of State respecting the trial of the said John Broome as aforesaid And whereas the said Richard Sill had not ascertained from the said Secre- tary of State that the said John Broome would if con- victed of the said offences and misdemeanors with which he stood charged be transported to the great damage and deception of the said Henry Broome against the form of the statute &c. against the peace &c. The second count set forth the same pretence, but alleged that the said Richard Sill obtained from the prosecutor the sum of twenty pounds, and a cheque for the payment of twenty pounds. The third count 134 CROWN CASES RESERVED. 1853. was similar, but charged that a Bill of Exchange for ^^^g the value of two hundred pounds, and an order for Case. the payment of money for two hundred pounds had been obtained by him by means of the same pre- tence. Errors assigned : That it is not stated that the said several Bills of Exchange, or the said sum of twenty pounds, or the said cheque and order for the payment of money or the said order for the payment of money in the several counts of the said indictment respectively mentioned and therein repectively alleged to have been obtained by the said Richard Sill from the said Henry Broome, by means of the false pretences therein respec- tively mentioned, were, or that any or either of them were, or was, at the said times, when they were respec- tively so obtained as aforesaid, the property of the said Henry Broome, or of any other person whatever, or that the said Henry Broome, or any other person whatever, was at the said times entitled to the possession of, or to demand or receive payment of the same respec- tively. That it is not alleged whose property the said several Bills of Exchange, sum of money, cheque, and order for the payment of money, or order for the pay- ment of money in the said several counts respectively mentioned, or any or either of them were or was at the time when they were respectively obtained by the said Richard Sill from the said Henry Broome as in the said several counts respectively alleged, and that it is consistent with the said indictment that the same were at the time respectively last aforesaid the property of the said Richard Sill, or that the said Richard Sill was then entitled to the possession of the same respec- tively. That it is not alleged that any money was due or secured or remaining unsatisfied upon any or either of the Bills of Exchange, or the said cheque and order for the payment of money or the said order CROWN CASES RESERVED. 135 for the payment, of money in the said several counts 1853. thereof respectively mentioned at the time when sim/s they were respectively so obtained by the said Rkh- Case. ard Sill from the said Henry Broome as in the said several counts is respectively alleged. That the several pretences set forth in the said indictment are not nor are any or either of them sufficient in law to support the said charges in the said several counts in the said indictment respectively contained. That it doth not appear in or by any of the counts in the said indictment how or in what manner the making of the pretences in the said counts res- pectively set forth, or of any or either of the same pretences was connected with the obtaining or enabled the said Richard Sill to obtain from the said Henry Broome the said bills of exchange, sum of money, cheque and order for the payment of money and order for the payment of money in the said several counts respectively mentioned or any or either of them (a). Joinder in error. On the 28th of January, a. d. 1853, this case was argued on a concilium before Lord Campbell C. J., Coleridge J., Wightman J., and Crompton J. Hodgson for the plaintiff in error. Metcalfe for the Crown. (a) The following rule was taken ney of this Court shall join in out by the plaintiff in error : — error with the plaintiff in error " Tuesday, the eleventh day of within eight days next after notice January in the sixteenth year of of this rule to be given to the the Reign of Queen Victoria. attorney or agent for the defend- " In the Queen's Bench," ant in error and to the solicitor "Middlesex." for the affairs of her Majesty's " Richard Sili,, Plaintiff. Error, Treasury, let judgment be entered against for the said plaintiff in error. The QuEKN, Defendant in Error."- " Side Bar. " Unless the Crown and attor- " By the Court." 136 CROWN CASES RESERVED. 1853. Hodgson. The three counts of the indictment are Sii,i^>s all open to the same objection. They do not state Case. that the bills of exchange and money mentioned were the property of any one. This is an objection fatal on writ of error. It was an objection raised in the case of Reg. V. Norton, 8 Car, & P. 196 ; and Alderson B., Williams J., Coltman J. held that the indictment must be quashed. An indictment under the stat. 7 & 8 Geo. 4, c. 29, for obtaining money under false pretences, it was held is not good unless n addition to the false pre- tences it contain the requisites of a count for larceny ; and if it do not allege the money, &c. obtained to he the property of any person, it will not be sufficient, inasmuch as it could not in that state be pleaded as a bar to a subsequent indictment for larceny, which the offence is made by the proviso in the 53rd section. In a subsequent case the point was raised upon writ of error, and the Queen's Bench gave judgment for the defendant. That case was Reg. v. Martin, 8 Ad. & E. 481, which seemed conclusive upon the subject. The defendants were indicted for that they contriv- ing and intending, &c. to cheat and^defraud W. J. H. of his goods, on &c., at &c., unlawfully did falsely pretend, G. J. then and there being an apprentice to the said W. J. H., that &c. (stating and negativing the pretences) ; and that the said G. M. and E. his wife, by the false pretences aforesaid, did then and there unlawfully, knowingly, and designedly, obtain from the said W. J. H. divers goods and merchan- dizes, that is to say, six dozenpounds weight of candles of the value of, Src. with intent then and there to cheat and defraud the said W. J. IT. of the same, against the form of the statute, &c. Plea not guilty ; verdict guilty, and judgment of transportation. Error was brought on the judgment, on the ground among others that it was not stated in the indictment that the goods Sill's CROWN CASES RESERVED. 137 alleged to have been fraudulently obtained were the 1863. property of any person. Lord DenmanC J., in giving judgment in the case said, " this indictment is clearly bad on the face of it. For aught that appears the defend- ant may have obtained his own goods. Perhaps he might even do that under circumstances which would be criminal; hut primd facie it would not be criminal, and the circumstances which rendered it so should be stated. Then is the defect covered by verdict? The act 7 Geo. 4, c. 64, s. 21, says— that after verdict the indictment shall be sufficient, if it describe the oflFence in the words of the statute, and here the indictment does certainly pursue the words of the statute. But it is not enough to state the oflFence in general terms ; the enactment assumes, that the words shall be so employed as to shew that some offence has been committed. In indictments for larceny the owner- ship of goods is always stated." On the same occa- sion, Littledale J. remarked, " I am certainly of the same opinion. No doubt this indictment would be bad on judgment by default for want of stating whose the property was. Then as to the operation of stat. 7 Geo. 4, c. 64, s. 21, after verdict. Stat. 7 & 8 Geo. 4, c. 29, s. 53, punishes the obtaining by false pretences any chattel, &c., with intent to cheat or defraud any person of the same. That description is followed in the indictment and the offence is therefore described in the words of the statute. But the subject-matter must be described with the same particular as in a common law indictment. Thus, it would not be enough to charge the stealing in a dwelling-house, the destroying a will, the taking pigeons, without adding whose goods, whose will, whose pigeons." And Patteson J., added, " I cannot see how, if we hold such a defect was cured, we could hold that a 138 CROWN CASES RESERVED. ^ 1853. verdict did not cure an omission in an indictment for Sill's. burglary, of any statement on whose house, or whose Case. goods, the house or goods were." Metcalfe. I may as well state now that I do not dispute what my learned friend contends for that there are various cases in which it has been held, that it was necessary to state in an indictment for obtaining money by false pretences, who the owner of the pro- perty so obtained was. Reg. v. Norton and Reg. v. Parker^ are authorities which I roust admit are con- clusive, unless the law has been altered by the recent Act 14 & 15 Vict. c. 100. Lord Campbell C. J. — What section of that act do you rely upon ? Metcalfe. Section 25th. Lord Campbell C. J. — It was proposed during the passing of the act, that an indictment should be sufficient which said that the defendant obtained money by false pretences without naming any body, or stating what the pretences were. I was against that (a). (a) Clauses struck out of the Bill, tain property by false pretences or 14 & 15 Vict. for receiving any property obtained " And that in any indictment by such pretences, it shall not be for obtaining money by false pre- necessary to specify the pretences tences it shall be sufficient to al- or state the ownership of such lege that the defendant by false property." pretences unlawfully and fraudu- The above clause seems to have lently did obtain the money or been suggested by Mr. Greaves, chattel or valuable security which but being considered unsafe was shall form the subject of the struck out by the House of Lords, charge from some person who The following clause was also shall be named in the said in- expunged, on the ground that it dictment without particularly set- would make an indictment for ob- ting forth in such indictment the taining money under False Pre- pretences whereby such property was tences good, without specifying obtained, or the owner of such pro- what the pretences were, contrary perty, and in like manner in any to the decision of the Judges in indictment for attempting to ob- Rex v. Mason, 2 T. R. 581. CROWN CASES RESERVED. 139 Metcalfe. The 25th section of 14 & 15 Vicl. c. 100, 1853. enacts: — *' Every objection to any indictment for any " g,^j^,g — formal defect apparent on the face thereof shall be Case. taken, by demurrer on motion to quash such in- dictment, before the jury shall be sworn, and not afterwards ; and every Court before which any such objection shall be taken for any formal defect may, if it be thought necessary, cause the indictment to be forthwith amended in such particular by some officer of the Court or other person, and thereupon the trial shall proceed as if no such defect had appeared." Lord Campbell C. J. — That section does not touch this objection. Hodgson. The law as to the necessity of stating the ownership of property in an indictment for larceny and false pretences is not altered. The first section provides that variances may be amended ; but this is not a case -of variance. Lord Campbell C. J That is, it empowers the Court to amend variances before verdict. Hodgson. The statute assumes that property must ^ be laid in somebody ; and it enables a Court, in a case where the property was laid as that of A. and proved to be that of B., or where the name turned out to be William John in place of John Williams, to order the iudictment to be amended, and not allow the prisoner to be acquitted. Before the act it was held to be as necessary to state the ownership of property in false pretences as in larceny. The law must be " Whereupon the offence charged all intents and purposes whatsoever, in any indictment has been or if it describe the offence in the shall hereafter be created or de- words of the statute.'' See the ob- fined by any statute or subjected servations of Lord Denman C. J., to a greater, less or different de- and Patteson J., on 7 Geo. i, c. 64 gree of punishment by any statute, s. 21. Rex v. Martin, 8 Ad. & £ the indictment shall be sufficient to 481. UO CROWN CASES RESERVED. 1853. taken to be settled by Reg. v. Martin (a) ; now how s.^^.g does the Act 14 & 15 Vict. c. 100, affect the authority Case. of that decision? The eighth section is the only one that refers to false pretences. It enacts : — that "From and after the coming of this act into ope- ration it shall be sufficient in any indictment for forging, uttering, offering, disposing of, or putting off any instrument whatsoever, or for obtaining or attempting to obtain any property by false pretences, to allege that the defendant did the act with intent to defraud, without alleging the intent of the defendant to be to defraud any particular person; and on the trial of any of the offences in this section mentioned it shall not be necessary to prove an intent on the part of the defendant to defraud any particular person, but it shall be sufficient to prove that the de- fendant did the act charged with an intent to de- fraud. It merely says that an intent to defraud any particular person need not be alleged or proved." ss Lord Campbell C. J. — It goes so far and no farther. Hodgson. The corpus delicti remains untouched. The corpus delicti in false pretences is fraudulently obtaining the goods or money the property of some one ; either of A. B., or of some person to the jurors unknown. The eighth section of the statute merely enables you to state a general intent to defraud in- stead of a particular intent. WiGHTMAN J You Say that obtaining money with intent to defraud is not enough ? Hodgson. It is not enough to constitute the offence. (a) 8 Ad. &E. 481. CROWN CASES RESERVED. 141 Lord Campbell C. J. — So it was before the act, jggg^ and so it seems to be at present. ~ — ; — ' Hodgson, In illustration of the intention of the Case. Legislature in framing 14 & 15 Vkt. c. 100, re- ference may be made to Greaves's edition of the Act (a). On the eighth section he remarks, " Before this act passed, it was necessary in these cases to allege that the defendant did the act charged with intent to defraud some particular individual, men- tioned in the indictment, and to prove that the de- fendant did such act with intent to defraud the person so specified. This in most instances led to the multiplication of counts alleging an intent to defraud different persons so as to meet any view the jury might take of the evidence, and sometimes upon the evidence a difficulty occurred in ascertaining whether any person in particular could be said to be intended ta be defrauded. This clause is intended to obviate all such difiiculties, and it renders it sufficient to allege in the indictment that the forgery or uttering was committed, or the goods obtained with intent to defraud, without specifying any particular person intended to be defrauded, and it likewise renders it unnecessary to prove that the defendant intended to defraud any particular person, and makes it sufficient to prove that he did the act with intent to defraud." In the precedent too, which he has given in illustra- tion of the act of Parliament (No. 34), he lays the goods obtained by false pretences, as " the goods and chattels of the said C. -D." Lord Campbell C. J.— As Mr. Metcalfe admits, that before the act such an objection would have been fatal, it is incumbent on him to shew how the act cures (a) The Lord Chief Justice re- given most valuable assistance in marked that Mr. Greaves had the preparation of the act. 142 CROWN CASES RESERVED. 18/53. the objection. After such solemn decisions, we are S,^j_,g bound to decide in favour of the plaintiff in error, Case. unless it can be shewn that the new act has altered the law. Metcalfe. That according to the decisions before 14 & 15 Vict. c. 100, it would have been necessary to state the ownership of property in a count on false pretences is not disputed. But the defect is cured by the statute. The twenty-fifth section provides, that formal objections to the indictment shall be taken before the jury are sworn and not afterwards, and that the Court may order them to be amended at the trial. Lord Campbell C. J. — Then you must make out that this is a formal defect. Metcalfe. It is submitted that the objection is only one of form. Chompton J. — Can that be a formal statement which must be laid, and proved as laid ? Metcalfe. This is not like a case of larceny. In larceny the offence is stealing the goods of another person, and it is clearly necessary that the ownership of the goods should be shewn. But in obtaining money or goods by false pretences, the gist of the offence is the fraud (a). Lord Campbell C. J. — But the Judges have held, that there is no distinction in this respect between cases of false pretences and of larceny ; that the same necessity 5 of the father, "^'^- left her home The prisoner had for some time lodged in the house alone by a 'Dr6"Con— of, John Frost, a labouring man at Jiottendean, and carted ar- stated to him and the family his intention to emigrate ^etwe«i°' to America. On the 7th February he took leave of them, and them, and went with John Frost to Maidstone, by the place ap- Sutton Road, there to take the train for London. It ^here'she was understood between them i\i-Ai John Frost, Siher was met by • II- II iir<77 r, 1 ^^^ prisoner, parting with him would return hy the otaplehurst Itoad. and then A short time before his departure he had privately awYy^oge- persuaded Anne Frost, John's daughter, a girl between ther some twelve and thirteen to go with him to America, and without the on the morning of his departure, he had secretly told J.e[u°„j^" ?^ her to put up her things in a bundle, and walk to a Held. point named on the Sutton Road, where he would there was a meet her. She did so : and the prisoner having parted *ir/"f,t°o/^® the father's possession, within the meaning of the stat. 9 Geo. 4, c. 31, s. 20, by the prisoner, when he met the girl and went away with her at the appointed place, as U]) to that moment she had not absolutely renounced her father's protection. 2ndly. Such taking need not be by force, actual or constructive, and it is immaterial, whether the girl consents or not. VOL. I. M 160 CROWN CASES RESERVED. 1853. vnth the father on the Staplehurst Road, returning Manklb- home went to the Sutton Road, and met her at the tow's place appointed. He placed her clothes amongst his own in one of his boxes, and the two travelled in a covered van all night to London. Information was sent to London, and in the morniiig he was taken into custody at the instance of the girl's uncle. He stated at the time of his apprehension, that he had paid the girl's passage to London, and was going to take her to America. The prisoner's counsel relied on the case of R. v. Meadoivs, 1 C. & K. 399, and urged that as the girl went voluntarily, there vi^as no taking within the meaning of the 20th section. The case of R. v. Robins, ibid. 458, was cited on the other side, and it was stated that my Brother Maule, at the same place on the previous circuit, had declined to act on R. v. Meadows. I overruled the objection, and told the jury that the girl was in her father's possession while in his house, although he was not actually in it ; that the taking * need not be by force, nor against the girl's will : and that if the prisoner by persuasion induced her to leave her father's roof against his will, in order to her going with him to America, the case was within the statute. On this direction the jury found hira guilty, and I sentenced him to nine calendar months' imprisonment. I reserved the point, and now desire the opinion of the Judges on the propriety of the conviction. J. T. Coleridge, April 15, 1853. On the 23rd April, 1853, this case came on for argument, coram Jervis C. J., Parke B., Coleridge J., Martin B., Wightman J., and Cressw^ell J. Ribton for the prisoner. The question for the con- Case, CROWN CASES RESERVED. 161 sideration of the Court is, what is the meaning of the 1853. word " take" in the 9 Geo. 4, c. 31, s. 20. The Rankle, words of that section are as follow : — " That if any tow's person shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her," &c. It is submitted that a taking within this section must be a forcible one, and not one which is the result of mere persuasion. By a careful reading of this section, together with the words of the 21st section, it is obvious that it was the intention of the Legislature to limit the operation of the 20th section to a forcible taking; for, if it had not been so limited, it would not have been necessary for the Legislature to have used the additional words which we find in the 21st section. 'The words of that section are, that if any person " shall maliciously, either by force or fraud, lead or take away, or decoy, or entice away, or detain any child," &c. Now, if the word " take " is not limited to a forcible taking, actual or constructive, why are the words "lead or take away, decoy or entice," used ? The case of Reg, V, Meadows, 1 C. & Kir. 399, seems to be a case in point. There (a), a girl under sixteen, who was in (a) Mr. Baron Parke having of the possession and against the kindly furnished the Editor with will of Richard Westwood her a copy of his Notes in Reg. v. father-in-law, the said Caroline JIfeoffotos, it has been thought well Allen, being an unmarried girl to append them in a note. under the age of sixteen years (to wit) of the age of thirteen years, Stafford Lent Assizes, 1844. against the statute, &c. Monday. March J 1th. gnd Count charges the taking Cor. Parke B. of said Caroline Allen out of the Regina v. Mary Meadows. possession, &c., of Richard WesU Indictment. That prisoner on wood, he then and there having 6th Felmmry last, at Wolverhamp- the lawful care and charge of her. t ceeding. Section 30 only gives, in my opinion, a cumulative remedy, and that view is fortified by a consideration of the language of section 29, which commences with these words : " That the prosecution for every offence punishable on summary conviction under this act, shall be commenced within three calendar months after the commission of the offence," while section 30 begins with the words, " And for the more effectual prosecution of all offences," &c. My Brother Wightman was right in saying that the information on oath was a matter of procedure only. All the other learned Judges concurred. Conviction affirmed. ,ii>- <^-^'7 /^^x/ ^jy >y4 J 853. REGINA V. ABRAHAM REED. A. was sent At the General Quarter Sessions of the peace for to the rail- the county of Kent, holden at Maidstone, on the 4th way station for 10 cwt. of coals, which being supplied were placed in sacks and put into the master's cart. The prisoner was directed by his master to bring the coals to his house. On his way home, without authority, he disposed of a quantity of the coals to a third person. Query. If the ofience amounted to larceny or embezzlement ? Case. CROWN CASES RESERVED. 169 day of January^ 1853, before Aretas Akers, Edward 1853. Burton, and James Espinasse, justices appointed in Reed's and for the county of Kent, Abraham Meed was tried upon an indictment for feloniously stealing two cwt. of coals, the property of William JSfewton, his master, on the 6th day of December, 1852, and one James Peerless, was charged in the same indictment with receiving the coals, knowing them to have been stolen, but was acquitted. The evidence of the prosecutor, William Newton, was as follows : " I am a grocer and miller at Cowden, and sell coals by retail. The pri- soner Reed entered my service last year, about three weeks before the 6th of December. On that day I gave him directions to go to a customer to take some flour, and thence to the station at Edenbridge, for 10 cwt. of coals. I deal with the Medway Company, who have a wharf there, Holman being wharfinger. I told Meed to bring the coals to my house. Peerless lives about 500 yards out of the road from the station to my house. Reed went about 9 a.m., and ought to have come back between 3 and 4 p.m. ; but as he had not come back, I went in search of him at half-past six and found him at Peerless s>. The cart was standing in the road opposite to the house, and the two prisoners were taking coals from the cart in a truck basket. It was dark. I asked Reed what business he had there. He said to deliver half a hundred weight, for which he had received an order from Peerless. Reed had never before told me of such an order, and had no authority from me to sell coals. Later that evening I went and asked Peerless what coals he had received from my cart. He said half a hundred weight. I then asked him how they were carried from the cart. He said in a sack. I weighed the coals when brought home, and found the quantity so brought at half a hun- dred weight and four pounds short. I went to Peerless's 170 CROWN CASES RESERVED. 1853. next day and found some coals there, apparently from Reed's half to three quarters." Upon his cross-examination ^^^^- he stated as follows. I believe Peerless had sometimes had coals from me. When I came up they were shutting the tail of the cart, but some coals were in a truck basket at their feet. Heed said at once he had received an order from Peerless. It was two hours later when I asked Peerless, and when he said he had ordered them. Reed said he had carried two cwt. in, but that was two hours after. On his re-examination he said, I think Peerless had had some coals from me about a fortnight before the sixth. James Holman, another witness for the prosecution said, I am a wharfinger to the Medway Company at Edenhridge station, and Newton deals there for coals. Reed came on the 6th o^ December, and asked for half a ton for Newton, and I supplied him. I entered them at the time to Newton, and now produce the book with the entry, James Handley, another witness for the prosecution. I am superintendent of the Seoenoahs division. On the 17th December I went to Peerless, and asked him how much coals he had received from Reed. He said he had ordered half a hundred weight three weeks before. Reed, when I asked him afterwards, said three days before. Reed said he had received two glasses of wine from Peerless. On his cross-examination, he said this was about 4 p. M., 7 th December. Newton was then re-examined, and said, Reed came to me in the morning of the 7th, I told him two hundred weight and three quarters were missing. He then said one sack had been left at the wharf by mistake, I therefore charged him with only three quarters. Case. CROWN CASES RESERVED. 171 Holman, upon re-exaTnination, said Meed left a 1853. sack behind him, but it was an empty one. Rbed's This being the case for the prosecution, the Counsel for the prisoner submitted that there was no case to go to the jury on the charge of larceny, inasmuch as the possession of the coals left at Peerless s, had never been in Newton, the master. The Counsel for the prosecution contended that the coals were constructively in the possession o^ Newton, and that the offence was properly charged as larceny, but that under the provisions of the act of the 14 & 15 Vict. c. 100, s. 13, it was immaterial whether the offence were larceny or embezzlement, as the jury might find a verdict either for larceny or embezzle- ment. The Counsel for the prisoner thereupon proposed that it should be left to the jury as a charge of embezzlement, but this was objected to. The Court were of opinion that there was a con- structive possession in the master, and left the case to the jury as one of larceny. The jury found the prisoner guilty. The Counsel for the prisoner then applied to the Court to submit the case for the opinion of the Judges. The Court respited the judg- ment and discharged the prisoner upon entering into recognizances, and the Chairman reserved the point as to whether or not the prisoner was rightfully convicted of larceny upon the evidence. This case was argued on the 23rd of April, 1833, before Jervis C. J., Parke B., Alderson B., Wight- man J., and Cresswell J. Bose for the Crown Ribton for the prisoner. Rose having been called upon by the Court. This is a case of larceny, and it is submitted that the 172 CROWN CASES RESERVED. 1853. prisoner was properly convicted of that offence at the ~rebd's trial. The question was one of constructive posses- ^^^- sion. It appeared from the evidence that the prisoner was in the service of one William Newton, and that on the 6th of December he was sent by his master to the station with a cart for ten cwt. of coals. He asked for the coals in the name of his master, and they were supplied to him by the wharfinger, who entered them in the name of Newton. The prisoner was desired by the master to bring the coals to his house. At the station the coals were placed in the master's cart, and from that time it is contended that the property was constructively in the possession of the master through his servant, and that any appropriation afterwards by the latter would make him guilty of larceny. The case of Rex v, Nicholas Abrahat, 2 Leach C. C. 824, seems to be a case in point. There it is said, if a cornfactor purchase the cargo of a vessel laden with corn, and sends his servant with a lighter to fetch it from the ship in loose bulk, and the servant contrives to have a certain portion of it put into sacks by the meters on board the ship, and takes the corn so sacked feloniously away in the lighter immediately from the ship, he may be indicted for stealing the property of the cornfactor, although it was never put into his lighter, or otherwise reduced into the cornfactor's possession. In that case the prisoner had never been employed by the prosecutors, nor was he authorized to do so. In the present case the prisoner had no authority to sell the coals (a). It is submitted that thiscase iseven (a) In the case cited by counsel plete before the delivery to him. there is the following note. " In And after the purchase of it in the this case," says Mr. East, " there vessel they had a lawful and ex- appears to have been a tort com- elusive possession of it against all mitted by the servant in the very the world but the owner of such act of taking, and the property of vessel." his master in this case was com- CROWN CASES RESERVED. 173 stronger, for here the coals are placed in the master's 1853. cart which was sent by him for that purpose. The case rbed's of Bex V. John Spears, 2 Leach C. C, is also a strong c*^^- authority for the present position. In that case the pro- secutors were cornfactors. The prisoner was employed in their service as lighterman, and was ordered to go with their barge to one Wilson, a corn meter, for as much oats in loose bulk as the barge would carry. The prisoner proceeded with the barge alongside a ship lying in the river Thames, and received from Wilson 220 quarters of oats in loose bulk, and five quarters in sacks. The cargo having been purchased b}' the prosecutors. On the prisoner's arrival with the barge at the ship, he desired the corn meter to put five quarters of the oats into ten sacks. When so filled the sacks were placed in the cabin of the barge. The 220 quarters being loaded into the barge in loose bulk. The corn meter soon after going up the river saw the barge, lying two or three hundred yards from the place where the loading was taken in, and observed that the ten sacks containing five quarters of oats were not in or upon the barge. On the oats being measured on the arrival of the barge at the pro- secutor's wharf, only 220 quarters were found in the barge, and were all in loose bulk, and no oats in sacks being on board the barge. The prisoner was found guilty, and upon a case reserved, the Judges were of opinion that the conviction was right. In the case of Bex V. Walsh, 4 Taunton Rep. 276, Heath J., in reference to the case of B. v. Spears, says, " That case went upon the ground that the corn was in the prosecutor's barge, which was the same thing as if it had been in his granary," so here the coals were in the master's cart the same as if they were upon his premises. 174 CROWN CASES RESERVED. 1853. Jervis C. J In this case, were the coals bought at R J, ED'S the wharf by the prisoner ? Case. Jiose. They were ordered in the name of tlie master, and were sold to the master. The vendors had the power of selecting the coals, and they were by them appropriated to the vendee, even before they were taken away. Parke B, — The purchase was by the master? Rose. Yes. And, upon the authority of the cases cited, it is submitted there was a constructive posses- sion from the time of the delivery to his servant. And if there were such constructive possession in the master, the servant had only a bare custody or charge of the coals, and the legal possession remained in the master, and so, by an unlawful appropriation, the prisoner would be guilty of larceny. In the case of money which is in the possession of the master by the hands of one of his clerks, and another clerk takes it from such clerk, he is guilty of larceny, and not embezzlement. Rex v. Murray, R. & M. C. C. R. 276; 5 C. & P. 145. Jervis C. J. — Supposing a servant receives a certain sum of money for his master, say 20/., is he bound to pay the exact identical coin ? Would it not be sufficient if he paid IQl. ? Rose. Perhaps so. Jervis C. J Or take the case of money in bags, or goods in sacks, as in the present case. Rose. In the present case the coals were in sacks, and then placed in the master's cart. Cresswell J. — Does it make all the difference for your case that the coals were sent in the master's cart? Jervis C. J. — In the case put of the money, would trover lie ? CROWN CASES RESERVED. 175 Parke B. — According to the old authorities, ^- 1853. count only could be maintained. It is so laid down in n IS Ej D '€t liolliday v. Hicks, Cro, Eliz. 638. Trover and con- Case. version of 25/. The defendant pleaded not guilty, and the jury found a special verdict, that the defend- ant being servant and factor to the plaintiff, sold twenty quarters of his master's corn for 25/. Stevens moved, for the defendant, that this verdict was found for him, for this 25/. was never in his master's posses- sion nor his money, and this action lay not, but rather an account. This also is money out of the bag ; but Fenner held that it was found for the plaintiff, for the possession of the servant is the master's possession, and it is as if he had always had it in his possession. I find after, that error was brought of this judgment. It is so reported in Cro. Eliz. 746. " The property of the money was never in the master, but in the servant ; for if a man delivers money to another, the property thereof is in the bailee, because it cannot be known, and he can maintain account only quod omnes alii pr ^ , m t j Case. Maule J., Martin B., and Talfourd J. concurred. Conviction affirmed. 1853. REGINA V. GOODENOUGH. The prisoner, At the General Sessions of the peace of our lady the clerk to the Queeii, held at the Castle of Exeter, in and for the waTindicTed county aforesaid, on Tuesday, 1st March, 1853, be- in three difFe- ^or Montague Baker Bere, Esq., Baldwin Fulford, rent counts , . ... c ' ' l forembez- Esq., and others their companions, justices ot our said mo'lfeysbf" '^^y the Queen, assigned to keep the peace of our said longing to ]ady the Queen in and for the county aforesaid, and The evi- also to hear and determine divers felonies, trespasses thrt^th^prif^ and other misdemeanors in the said county com- soner had mittcd. different Henry Harris Goodenough was tried upon the fol- s^^'or^"^^^ lowing indictment, to which he pleaded Not Guilty, money from DevonJ\ The jurors for our lady the Queen upon tor, a™eder their Oath present that Henry Harris Goodenough late in skins, for of j;|je parish of Samp ford Spiney in the county of Devon the purpose " i.j tr a J of purchas- labourer on the 8th day of October a.d, 1852 at the TheVuoner parish aforesaid in the county aforesaid was employed obtained the jp j.}^g capacity of a Servant to Joseph Hamlyn and skms on r j ^ • y-i i r credit, and othei'S and that the said Henry Harris Goodenough applied the money to his own use, but debited prosecutor in his day cash book with several sums of money as having been paid for the skins. The jury found the prisoner not guilty of embezzlement, but guilty of larceny. Held ! That the conviction was wrong. CROWN CASES RESERVED. . 211 did then and there by virtue of his said employment 1853, and whilst he was so employed as aforesaid receive ~~g^^^^^7~ and take into his possession certain money to a large nough's amount to wit to the amount of twenty shillings for and in the name and on the account of the said Joseph Hamlyn and others his masters and the said money then and there fraudulently and feloniously did embezzle. And so the jurors aforesaid upon their oath aforesaid do say that the said H. H. Goodenough then and there in manner and form aforesaid the said money the property of the said Joseph Hamlyn and others his said masters from the said Joseph Hamlyn 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 lady the Queen her Crown and dignity. And the jurors aforesaid upon their oath aforesaid further present that the said Henry Harris Good- enough afterwards and within six calendar months from the time of the committing of the said offence in the first count of this indictment charged and stated to wit on the 13th day of October a.d. 1852 was again employed in the capacity of a servant to the said Joseph Hamlyn and others and that the said H. H. Goodenough did then and there by virtue of his said last mentioned employment and whilst he was so era- ployed as last aforesaid receive and take into his pos- session certain other money to a large amount to wit to the amount of one pound six shillings for and in the name and on the account of the said Joseph Hamlyn and others his masters and the said last mentioned money then and there and within the six calendar months fraudulently did embezzle. And so the jurors aforesaid upon their oath aforesaid do say that the said H. H. Goodenough then and there in manner and form last aforesaid the said last mentioned money the 212 CROWN CASES RESERVED. 1853. property of the said Joseph Hamlyn and others his GooDE- said masters from the said Joseph Hamlyn and others nough's 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 lady the Queen her Crown and dignity. And the jurors aforesaid upon their oath aforesaid further present that the said Henry Harris Good- enough afterwards and within six calendar months from the time of the committing of the said offence in the first count of this indictment charged and stated to wit on the 20th day of October a.d. 1852 was again employed in the capacity of a servant to the said Joseph Hamlyn and others and that the said H. H. Goodenough did then and there by virtue of his last mentioned employment and whilst he was so employed as last aforesaid receive and take into his possession certain other moneys to a large amount to wit to the amount of one pound twelve shillings for and in the name and on the account of the said Joseph Hamlyn and others his masters and the said last mentioned moneys then and there and within the said six calendar months fraudulently and feloniously did embezzle. And so the jurors aforesaid upon their oath aforesaid do say that the said H. H. Goodenough then and there in manner and form last aforesaid the said last mentioned money the property of the said Joseph Hamlyn and others his said masters from the said Joseph Hamlyn and others 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. The following was the case proved in evidence in support of the indictment so far as is material to the question reserved. The prosecutor, Joseph Hamlyn, is a woolstapler, Case. CROWN CASES RESERVED. 5] carrying on business in copartnership with John Ham- \%5S. lyn and Wm. Hamlyn, at Horrabridgc, in the parish ~ of Sampford Spiney, in the county of Devon. The nough s prisoner had been for many years past in his employ- ment as a clerk and general servant, his duties being to keep three books, viz., the day cash book or market book, the cash book and ledger, and to attend the neighbouring markets, viz., Tavistock and Callington markets, both towns being within a few miles of pro- secutor's place of business, for the purpose of buying skins and whatever else his employer might require. Before going to market the prosecutor was in the habit of giving the prisoner either money or a cheque on his bankers to defray the expenses of the day ; and it was the prisoner's duty either to deliver what goods he purchased and to account for the money so received the same evening or the next morning in a book kept for that purpose, and to pay over to the prosecutor the surplus of the money so received and not expended. This was not however always strictly done. It was his duty to enter all payments or receipts made and re- ceived by him in the course of his employment in his day cash book or market book, thence carrying them into a book called the cash book, and thence into a book called the ledger. It was the pri- soner's duty, in the course of his employment, to pay ready money for the skins and all articles he purchased, and he had not the prosecutor's authority to buy any skin or skins on credit. On Friday, the 8th October, 1852, the prisoner, having an admitted balance of cash belonging to prosecutor in his hands of 11/. lis. Id., requested prosecutor for a further advance of cash, which prosecutor agreed to, and gave prisoner a cheque upon his bankers for 10?., for the purpose of being expended in the course of his said employment on that occasion, as he was then 214 CROWN CASES RESERVED. 1853. about to attend Tavistock Market in the course of his ^^^jjjg,_ said employment, which said cheque was given to and nough's cashed by the prisoner. He entered the lOZ. to his debit in his account in the day cash bools or market book, which he delivered to the prosecutor on the next day, and made, amongst other entries of pay- ments made to butchers at the Tavistock Market (with which he debited the prosecutor), the following: " Oct. 8, 52, Tavistock, " Richard 5 sheep 4s. - £1 0." The prisoner having debited the prosecutor in the day cash book or market book with this payment {11. to Richard), and several other sums to different butchers, amounting in the whole to 13Z. 8s. Ad., as the payments for skins of this day's market, then carries this sum, 13Z. 8s. Ad., as having been paid by him this day, into the cash book (in his own manu- script), and on the other side of the account gives prosecutor credit for the before mentioned balance of 111. Is. Id. On Wednesday, 13th October, 1832, the prisoner attended Callington Market, in the course of his said employment, having in his hands an admitted balance from Tavistock Market (8th October, 1852), of 8Z. 2s. 9c?., and having received in the interim a cheque from prosecutor for 20Z., and cash from a Mr. Willcocks, %l., for the use of the prosecutor. On the next day he made, amongst other entries of payments with which he debited the prosecutor on this occasion, the following : " October 13, Callington Market, " Jones 6 sheep 4s. - - £14 "Is lamb 2 - - - 02 0," amounting to 11. 6s., as paid to Jones, and several CROWN CASES RESERVED. 21 other sums to different butchers, amounting in the 1853. whole to 111., as payments for skins of this day's "good^ market. The prisoner then carries this sum, 111., as nough's having been paid by him this day into the cash book (in his own manuscript), and on the other side of the account gives prosecutor credit on 9th October, 1852, for the said cheque, value 20?., and 81. received by him of Willcocks. On Wednesday, the 20th October, 1852, the pri- soner attended the Callington Market in the course of his said employment, having in his hand a balance of 28?. 6s. 4c?. in cash, after giving prisoner credit for several payments made by him from prosecutor, in- cluding the payments made by prisoner on the last Callington Market day (13th October, 1852), and between the said 1.3th October and 20th October, 1852, amounting in the whole to 24Z. 8s. 2ic?., pri- soner having received two cheques from prosecutor, one for 35Z., the other for 111., the first dated the i5th October, 1852, and the second dated 20th October, 1852, which said cheques the prisoner cashed for the purpose of being expended in the course of his said employment on that occasion ; and in his account in the day cash book or market book, delivered to the prosecutor on the next day, he made, amongst other entries of payments to butchers, with which he had debited the prosecutor, the following : " October 20th, 1852, " Callington Market, " Spear 8 do. 4s. - - £1 12 0." The prisoner having debited the prosecutor in the day cash book or market book with this payment as paid to Spear, amounting to 11. 12s., and several other sums to different butchers, amounting in the whole to 10/. Is. lO^d., as the payments for skins of VOL. I. Q 216 CROWN CASES RESERVED. 1853. this day's market. The prisoner then carries this qq^^j,. sum, 10/. Is. lO^d., as having been paid by him this nough's day, into the cash book (in his own manuscript), and on the other side of the account gives prosecutor credit on the 15th October and 20th October, 1852, for the said two cheques, value respectively 35/. and 17/. The prisoner, in addition to these entries in the day cash book or market book on the three several occasions before mentioned, and also in the cash book in his own handwriting entered (inter alia) the said sums of 1/., 1/. 6s., and 11. 12s., as paid on the said three several occasions to Richard, Jones, and Spear, although these sums had never been paid by the prisoner, and although the goods were duly delivered to the prosecutor. It was proved that he had not made either of these payments. On the contrary, without the prosecutor's knowledge or authority, on the 8th, the 13th, and 20th days of October, 1852, . he had agreed with the several parties, Richard, Jones, and Spear, to pay for the skins, the subject of these entries, at the end of the quarter, and not at the time the purchases were made ; and that these transactions should not be for ready money. It was also proved, that in consequence of the prisoner being back in his accounts, he was to receive no salary from Lady Day, 1852. The prosecutor has since paid Richard, Jones, and Spear the before mentioned sums. The prosecutor having discovered that the payments to Richard, Jones, and Spear had not been made, he expostulated with the prisoner, who suddenly, in November, left prose- cutor's house without any previous intimation to prosecutor, his workmen or servants. He returned again in a day or two and had an explanation with prosecutor. CROWN CASES RESERVED. 217 The Counsel for the prisoner, at the close of the 1853. case for the prosecution, contended, — Goode- First. That the facts proved did not constitute nough's embezzlement. Secondly. That they did not amount to a larceny. The Court, after hearing the Counsel for the Crown upon these objections, was of opinion that the prisoner took the money in question in each case in such a manner as to amount in law to a larceny, and so directed the jury. The Court also told them, that supposing they were of opinion from the evidence that the three several sums of money, or any one of them, were given to the prisoner as servant to pay his master's bills, and he appropriated these moneys to his own use, and that at the time lie received them he intended to convert them to his own use, the offence of larceny would be made out. The Court also told them, that if a master placed money in a servant's hands for the purpose of paying bills, and he applied the same to his own use, he was guilty of larceny, as the money was never out of the master's possession, and that if they thought the prisoner had received the money with the intention pf appropriating it, or any part of it, to his own use, he was guilty of larceny, and that no subsequent inten- tion to return the money would alter the character of the original taking, which constituted the crime. The jury found the prisoner guilty of larceny as a servant ; not guilty of embezzlement. At the request of the prisoner's Counsel, the Court respited the judgment, and reserved the question, whether the prisoner was convicted according to law, for the opinion of the Judges of the Court of Appeal, which opinion is now requested. Q 2 218 CROWN CASES RESERVED. 1853. The prisoner was discharged on recognizances to Qjj^jj^_ appear and receive judgment when called upon. nough's Baldwin Fulford, Chairman. No Counsel appearing, this case was considered on the 4th of June, 1853, by the following Judges: — Campbell C. J., Parke B., Maule J., Talfourd J., and Martin B. ; and they held the conviction wrong. Conviction quashed. CROWN CASES RESERVED. 210 REGINA V. SNELLING. 1853. On the 30th of March last, the prisoner called at The prisoner the bank of Messrs. Alexander at ffadleigh, where for^orging Mr, Ramsey, a farmer at Holton, kept an account, an order for , . the payment and said that she had called for 800/. which she had of money. deposited with Mr. Ramsey ; that Mr. Ramsey had mentwaTin told her she migrht have it if she called, but that she thefollow- I ii- i-mi '"S for™ • did not know whether it was in her name or his. The "Holton, clerk told her that he could not pay her without an girripieMto order: to which she replied, that Mr. Ramsey had paythebearis . ' , , , , , Mrs. Smart said an order would not be necessary, and went away, the sum of Upon the next day she came again to the bank, and fjefandso handed to the cashier a forged paper, of which the 4£ ten shil- p ,, . . o i lings for me. lOllOWing IS a COpv. James Ram- sey." Held, that though ' ' Holton, Mar. 31, 1853. this docu- j-j. mentwasnot Oirs, addressed to Pleas to pay the Bearis, Mrs. Smart, the sum of ^y^°^'g' Eaigth Hundred and 50 4£ ten shillings for me. shewn by evi- T n '' dence to be James Ramsey. ^n order for the payment of money, This paper was folded in the shape of a letter, and within then was addressed outside, "Mrs. Smart." The cashier w°n.i,c.66, asked the prisoner if her name was Smart? She s. 3, and for ^ whom It was said, " Yes." He then asked her if she had sesn Mr. intended. Ramsey write the order? She said, "No." He handed it to her. The cashier did not pay the money mentioned in the paper. Upon cross-examination, he said, that if he had seen Mr. Ramsey write it, or had known that it was his writing, he should have treated it as an order, and have paid the money, although it was not addressed to Messrs. Alexander. Mr. Ramsey proved VOL. I. R 220 CROWN CASES RESERVED. 1853. that the paper was a forgery, and the prisoner having Snelling's been convicted, I saved the question, whether the ^^®^- paper above set forth was, under the circumstances, an order for the payment of money within the statute. John Jervis. On the 12th of November, 1853, this case was argued before Jervis C. J., Pollock C.B., Parke B., Coleridge J., and Williams J. Dasent, for the prisoner. It is submitted that this is not an order for the payment of money within the 11 Geo. 4 &1 Win. 4, c. 66. Under the 3rd section of this Act it is made an offence amongst other things to forge or alter, or offer, utter, or dispose of or put off, knowing the same to be forged or altered, any under- taking, warrant, or order for the payment of money, Sfc. There are three things necessary to constitute a valid order for the payment of money within this statute, viz. : 1st, there must be a drawer ; 2ndly, a payee ; and Srdly, there must be a person to whom the order is addressed. The third ingredient is wanting in the present case. Pollock C. B. — Suppose a case of this kind. I call at my banker's and tell him I shall send a person for a certain sum of money. Afterwards that person calls with an order, signed by me, for that sum, but it is not addressed to any one, would you contend that such an instrument is not a valid order for the pay- ment of money within the statute ? Parke B. — There is the case of Hex v. Ross Carney (1 Mo. C. C. 351), where it is held that on an indict- ment under the lOth section of this act, a request for the delivery of goods need not be addressed to any one, and that parol evidence may be given to shew to whom it was intended to be addressed. The request was simply, "gentlemen." CROWN CASES RESERVED. 221 Pollock C. B. — Carney's case seems quite decisive. 1853. Dasent. Parol evidence may bie given where there spelling's has been a habit of paying such instruments as in Case. Rex V. Rogers, 9 C. & P. 41. Pollock C. B. — An accurate banker might perhaps require that the order should be addressed to him, but though that should not be done, would not the pay- ment be good ? Dasent. It is submitted that the banker would have no authority to pay an order not addressed to them. Such an imperfect order would not be a good voucher in the hands of the bankers. In Rex v. Clinch (2 East, P. C. 938), an indictment stating an order to deliver goods purporting to be signed by one who was alleged to be the servant of the owner, but not stating that such servant had authority to make such order was held bad. Jervis C. J. — There is the case of Rex v. Cullen (1 Ry. & M. C, C. 300), in which it appears that a request need not be addressed to any particular person. Now, suppose the document to have been genuine, and payment to have been made, would it not have been a good voucher ? Dasent. No. Ramsey may have had accounts with two bankers. If it were a good voucher for one, it might be so for the other. Jervis C. J. — The case referred to of Rex v. Clinch, upon which the prisoner's Counsel appears to rely, is somewhat different from what has been stated. If that case be closely looked into, it will be found that the instrument must either be an order, or be capable of being explained by evidence to be an order. The objection was, that it did not sufficiently appear by the indictment to be an order. The question was one of pleading, not of evidence. We are now upon evidence, therefore let us apply the test, whether the R 2 222 CROWN CASES RESERVED. 1853. instrument appears by the evidence to be a valid Snelling's" order. C^s«- Dasent. ' There is the case of Rex v. Ravenscroft, 1 R. & R. 160. Parke B. — There the Judges held that the order in question was not an order for payment of money, there being no special averments in the indictment that it was intended for an order, or that Masterman & Co. were bankers. It is an authority for supplying by evidence the omission on which you now rely. Dasent. It is submitted, that there is no evidence in this case to shew that any one at all was addressed. Worlledge, for the Crown. The present is a valid order within the statute.' The test applied by Jervis C. J., in Dawson's case (2 Den. 75), is the true one. The learned Judge there savs, "I think if this had been a genuine document, and payment had been made on its production, proof of tliose facts would have been a good ground to an action." Williams J. — There the document was addressed. Suppose this to have been a genuine document, but presented to a wrong person, would the payment by him discharge him ? Worlledge. Perhaps in the particular case sug- gested it might not ; but if Ramsey sent an order without an address, telling his servant to go to a par- ticular person for payment, and supposing that person to cash it, it is submitted he would be discharged by such payment. Carney's case is directly in point. Clinch's case is not applicable, as it turned simply on a question of pleading. In Vivian's case (1 C, & K. 719), the document was addressed to the banker's clerk instead of the banker, and Coleridge J. held that it might be shewn by evidence that the banker was intended. In Pulbrook's case (9 C. & P. 37), it was held that an address was not necessary within the 10th section of CROWN CASES RESERVED. 223 the act of Parliament, and in Rex v. Hawkes (2 Moo. 1S53. C. C. 60), it was held that though there was no person spelling's named as drawer the defendant might be indicted for tiase. uttering a forged acceptance on a bill of exchange. The absence of any address was amply supplied by the evidence which was authorized by the cases of Carney and Pulbrook c,\ieA above. Dasent, in reply, contended that the order was so informal that the bankers might have refused to obey it, and if so, it was not a valid order within the statute. Jervis C. J. — If the cases cited were conflicting, which I think they are not, the Court would be bound by the more recent decisions. The cases with one exception appear identical. The difference between a request and an order is this, the former purports to be made without authority, the latter with authority to command. It is conceded that had the paper in question been addressed to " Messrs. Alexander," it would have been an order, and the question is, does the omission of those words prevent it being an order? I think those words unnecessai'y. The statute refers to orders, receipts and requests, all of which are in writing, and governed by the same rules. To write a name at the foot of a bill may be a forgery of a receipt but not necessarily of itself, unless it be shewn to be a receipt. A request not addressed to any one may be a request, but the conduct of the party may shew that he intended it to be a request. Rex v. Cullen is an authority to shew that a request need not be directed to any one. The cases of Rex v. Carney and Rex v. Pulbrook are not dissimilar from Rex v. Cullen, Let us see if the case of Rex v. Clinch differs from these authorities. I think not. There it M'as necessary to shew on the face of the indictment that the order was made on some one, otherwise it was not a valid order. By virtue of a recent act such an averment is no 224 CROWN CASES RESERVED. 1853. longer necessary, since the instrument may be de- Snelung's scribed in the same manner as in an indictment for Case. larceny of it. In Rex v. Clinch the averment was insufficient. Here there is evidence to supply- the w^ant of the apt averment. Suppose, for instance, the word "Sirs" upon these cheques always meant "Messrs. Alexander," would not that order do ? It would when the meaning of " Sirs" was explained by evidence, t think the cases if narrowly examined do not conflict, and that to make a good order for the payment of money, the instrument must be directed or be ex- plained by evidence to be the same as if directed to some one. Pollock C. B. — If the cases were conflicting, I agree with the Chief Justice that the Court would be bound by the more recent decision, but I am of opinion that they do not conflict. I am of opinion that this is a valid order. Supposing the facts to have been true, and the instruments to have been genuine, would it not have been such an order as if paid would have relieved the bankers from any further demand for the money so paid ? I am of opinion it would. The facts supply the want of a formal direction to a banker. We are bound to sup- pose that Ramsey told her to go to the bank ; that she was told they would not pay her without an order, that she replied, Ramsey says that an order is not necessary, and that she came back the next day with this docu- ment from Ramsey. It would then be a good order. It is addressed " Sirs," and she delivers it to the per- sons for whom she says it was intended. I clearly am of opinion that the document in question is an order for the payment of money within the statute. Parke B. — I entirely concur with the Lord Chief Justice and the Lord Chief Baron. The instrument upon the face of it purports to be an order for the CROWN CASES RESERVED. 225 payment of money. I am not clear that an order for 1853. the payment of money requires the name of the drawee snelling's to appear on it. In some cases it must be shewn to Case. be addressed to some person. In all cases it must appear that there was an intent to defraud. The form of the instrument here is " please to pay." And I am not satisfied that there is not enough on the face of it to make it an order without shewing who was meant to pay it. I agree in the distinction which has been pointed out between this case and that of Rex v. Clinch. Coleridge J. — I am of opinion that this is an in- strument which may be explained by evidence to be an order for the payment of money. I would not be understood as diflfering from ray Brother Parke on the subject of this being, on the face of it, an order for the payment of money, but only to express the opinion that the Court is not called upon to determine what elements are necessary to perfect an order for the payment of money. It might have been otherwise had this point now arisen for the first time. I also concur with my learned Brothers in thinking that the cases cited are not conflicting. Williams J. — I have entertained great doubts in the course of the argument, whether we ought not to hold the case of Rex v. Clinch to be in point, and I still am inclined to think, having the misfortune to differ from the rest of the Court, that it is in point. Rex V. Carney and Rex v. Pulbrook decide that a request need not specify who is the party requested to pay. I thought at first that this case might be dis- tinguished from those of requests, but I think it cannot. The principle of the cases on requests must govern the present case, and I am therefore of opinion that the conviction is right. Conviction affirmed. 22(5 CROWN CASES RESERVED. 1853. REGINA V. REASON. Stercrril; ^^ t^^ last assizes holden at Cardiff, William from c. to T. Reason was indicted for stealing a post letter contain- question^ '" '"g money. The indictment contained also a count seaieftaj^ for simple larceny. The jury found him Guilty, containing From the month of November 1852, until and upon froVc.rand the day of committing the offence, William Reason delivered it ^.^g employed under the Post Office as a carrier of satelyatthe r j m i i • .ryi postoiBceof letters from Cwm Avon to Taybach, in Cxlamorgan- mas'ter.whose «^»»"«- The letters were delivered in a sealed hag, duty it was which it was his duty to deliver as he received it to to sort the ^-.771 1 j i- letters in the postmaster at laybach, and on such delivery to u"the°kigs^ the Taybach postmaster, the performance of the duty for the mails, of his employment was complete. soner'8 duty On the morning of the day on which the offence whenTe^de-^ was Committed, he brought from Cwm Avon the liveredthe sealed bag containing letters, and delivered it safely postmaster of at the Taybach post office to the Taybach postmaster, Se perform- ^''^osc duty it was to sort the letters in time, to make anceof his up the bags for the mail passing through that town. requested by The prisoner Reason, on being requested by the master of T Taybach postmaster to assist in the sorting, consented to assist in to do SO, and whilst he was proceeding in the assort- whichh'e°«)n- ment, contrived to steal one of the letters. That sentedtodo, letter contained a shilling, and whilst so . ° engaged con- Gifford, the prisoner's Counsel, submitted that one of the ^^ upou these facts the offence did not fall within the letters con- 26th section of the act, as the sorting formed no part taming a . -n r\m shilling. The of the prisoner s employment under the Post Office ; prisoner was indicted for stealing a post letter containing money. Held, that the prisoner was employed under the post office in sorting the letters within the meaning of 7 Wm. 4 & 1 Vict. c. 36, s, 26. Case. CROWN CASES RESERVED. 227 but tliat the assistance he had consented to render 1853. in sorting the letters, was merely gratuitous, and Reason's rendered to the postmaster for his personal accom- modation only. Evans, on the part of the prosecution, contended that the facts brought the offence within the 26th section as interpreted by the 47th. Having doubts upon the subject, I postponed the judgment until the next assizes, in order that the prisoner might have the benefit of the question thus raised, being considered and decided by her Majesty's Judges, and of their directions upon which of the two counts the verdict should stand. T. J. Platt. November 1853. This case was argued on the 12th November, 1853, before Jervis C. J., Pollock C. B., Parke B., Cole- ridge J., and Williams J. Hardinge G-iffard for the prisoner. The prisoner was not employed under the Post Office within the meaning of the 7th Wm. 4 & 1 Ykt. c. 36, s. 26. The 26th section of the statute is as follows : " That every person employed under the Post Office who shall steal, or shall for any purpose whatever embezzle, secrete, or destroy a post letter, shall in England and Ireland be guilty of a felony, &c. ; and if any such post letter so stolen, or embezzled, secreted, or destroyed, shall contain therein any chattel or money whatsoever, or any valuable security, every such offender shall be transported beyond the seas for life." The 47th section of the statute, which is the inter- pretation clause, enacts, amongst other things, as follows: "And the expressions, 'persons employed by, or under the Post Office,' shall include every 228 CROWN CASES RESERVED. 1853. person employed in any business of the Post OflBce, jisj^soTx's according to the interpretation given to the officer of Case. the Post Office." The expression, " officer of the Post Office," is declared to include "the Postmaster General, and every deputy postmaster, agent, officer, clerk, letter carrier, guard, post-boy, rider, or any other person employed in any business of the Post Office, whether employed by the Postmaster General, or by any person under him, or on behalf of the Post Office." It is contended, that the employment must be by some person having authority to employ some one. A mere casual and capricious employment will not suffice. The case of Eeg. v. Glass (2 C. & K. 395) seems to be a case in point. There it was held by the fifteen Judges, that the taking of the notes by the prisoner was not a larceny, the notes not being in his possession in the course of his duty as a Post Office servant. The words referred to cannot have so general a signification as is contended for by the Crown. Pollock C B. — The generality of the definition may have been purposely intended to avoid all diffi- culties. Parke B It is very reasonable, that a person employed as the prisoner, and who steals a letter, should be severely punished. Coleridge J. — In the case of Reg. v. Glass, it was not the business of the postmaster to get money orders. Pollock C. B. — Sorting is the business of the post officer. Coleridge J. — A postmaster in the country is often assisted bj' his wife. I have never understood it to be doubted that the wife, in such a case, is employed under the Post Office. CROWN CASES RESERVED. 229 Giffard. There is the case of Reg. v, Simpson 1853. (4 Cox C. C. 275). If it can be said that the prisoner Reason's was employed under the Post Office, so might a ^*^*- seaman on board of one of the mail packets. Parke B. — That would be no more than being in a house where letter bags were kept. Pollock C. B. — I am glad that my Brother Platt reserved this point as it is important, and it is neces- sary that it should be settled. We entertain no man- ner of doubt that the prisoner falls within the term of " employed under the Post Office." He comes within the exact terms. He was employed by the postmaster, who was employed by the Postmaster General. Conviction affirmed. M c^ri/^, > . "L ^ •'^^ / jP^^^^^ JT2; J^j AN MIDSUMMER QUARTER ^ S^Jc^^i SESSIONS, 1853. ^■^•r^v /~ftf*-- THE QUEEN,on the prosecution of EVAN HARRIS, jg-g against WILLIAM VODDEN, for Larceny. Verjjict, Not Guilty ; amended to Guilty. Owen Hughes, one of the jurors, delivered aver- ofanindkt- dict of Not Guilty, which was entered by the clerk of ™^"' ^°'' ■' •' larceny, one of the jurors delivered a verdict of 'Hot Guilty, which was entered in the minutes of the clerk of the peace, according to the usual practice. The prisoner was discharged out of the dock. Itnmediately he was discharged, and hefore the jury had left the box, others of the jury interfered, and said the verdict was Guilty. The prisoner was brought back to the dock, and the jury was again asked what their verdict was. They all answered Guilty, and the person who delivered the first verdict said, that he had said Guilty. The Chair- man, thereupon, ordered a verdict of Guilty to be recorded. 'Held, that the verdict of Guilty was rightly recorded. 230 CROWN CASES RESERVED. 1853. the peace on his minutes, from which the record is Vodden's ™ade up, and also by the Chairman who heard the Case. words " Not Guilty" in his note book, prisoner being thereon discharged out of the dock, others of the jury interfering, said the verdict was "Guilty." Then the prisoner being brought back into the dock, the Chairman asked the jury what the verdict was. All the twelve jurors answered that it was Guilty, and that they had been unanimous. The Chairman then asked Owen Hughes why he had said " Not Guilty," to which he replied that he {Owen Hughes) had said "Guilty." The Chairman then directed a verdict of Guilty to be recorded, and sentenced the prisoner to be im- prisoned for two calendar months, and to be kept to hard labour. The prisoner has procured bail, and is now out of custody. This case was argued on the 12th November, 1853, before Jervis C. J., Pollock C. B., Parke B., Coleridge J., and Williams J. Hardinge Giffard, for the prisoner, submitted that the verdict of Not Guilty was entered on the record of the Court, and a considerable interval elapsing before the verdict of Guilty was entered, that the alteration was contrary to law. Parke B. — A wrong verdict was taken in the first instance, and corrected on the spot. Giffard. There was a considerable interval between the first and the second entry, so much so that the prisoner was discharged from the dock in the mean- time. The verdict was recorded in the book of the clerk of the peace, and could not afterwards be altered. Coleridge J. — Tiiose entries must be made correctly. CROWN CASES RESERVED. 231 Pollock C. B. — It is much to be lamented that 1853. there should be a departure from the old forms. It vodden's was usual formerly, after the delivery of the .verdict, Case. for the clerk to address the jury as follows : " Hearken to your verdict as the Court has recorded it ! You say that the prisoner is Not Guilty ? And so say you all." When this form was observed, there was an opportunity of correcting any mistake. Parke B. — This shews the very great danger of departing from old forms. Giffard. Some interval of time should be fixed within which it is proper to make a correction. Pollock C. B. — We do not think the Court is called upon to say at what interval of time a correction should be made. All we do is to say that in the present case the interval was not too long. Nothing has been done but what daily takes place in the ordinary transactions of life ; namely, a mistake is corrected within a reasonable time, and on the very spot on which it was made. We are all of opinion that what took place was right. Conviction affirmed. 232 CROWN CASES RESERVED. 1853. REGINA V. GABRIEL SANS GARRETT. stated " That heretofore and before and at the time of the committing of the offence hereinafter mentioned, Sir Peter Laurie, Knight, and others carried on the business of bankers at the parish of St. Mildred the Virgin, in London and within the jurisdiction, &c., and under the name or style of The Union Bank of London. That the said Sir Peter Laurie and others as such bankers as aforesaid had been and were the corre- spondents in London oi Alexander Duncan and others who carried on business at New York in the United States of North America, under the style or firm of ant^was°" ' The prisoner was tried before* me at the July Ses- indicted in sions at the Old JBaileu for a misdemeanor. The England for . . -^ mi rr u amisde- indictment contained several counts. The 7th count meanor in attempting to obtain moneys from L. & Co., by false pre- tences. The defendant, bad a cir- cular letter of credit, marked No. 41, from D. S. & Co., of New York, for 210Z., with autho- rity to draw on L. & Co. in London, in favour of any jjuncan, Sherman & Co, of the lists of corres- pondents of the bank in different parts of the world, for all or such sums as he might require of the 210Z. The circular letters of credit of D. S. & Co., were each numbered with distinctive numbers, and it was the practice of the correspondent on whom the draft was drawn, after giving cash on such draft, to endorse the amount on the circular letter ; and when the whole sum was advanced, the last person making such advance retained the circular letter of credit. The defendant having procured from D. S. & Co., of New York, a. circular letter of credit for 2lOl., No. 41, came to England, and drew drafts in favour of the named correspondents there in different sums, in the whole less than 210Z., retaining the circular letter, the sums so advanced being endorsed on the letter. He then went to St. Petersburg, and there exhibited the letter of credit to W. & Co. of that place, a firm mentioned in the list of correspondents, the letter having first been altered by him, by the addition of the figure 5 to 210, so converting it into a letter of credit for 5,210Z. He obtained from that house several sums, and finally a sum of 1,200Z. and another of 2,500Z. on drafts for those amounts on L. & Co. W. & Co. for- warded these drafts to their house in London, who presented' the draft for 1,2001. on L. & Co., and required payment of it. L. & Co. having been advised of the draft. No. 41, by D. S. & Co. as a draft for 210?. only, discovered the fraud and refused to pay it. The defendant being afterwards found in England was taken into custody, and in- dicted as before stated. The jury found the prisoner guilty, and in reply to a question put by the learned Baron, as to whether, although the defendant's immediate object was to cheat W. & Co. at St. Petersburg, by means of the forged letter of credit, he did not also mean that they or their correspondents, or the indorsees from them should present the draft and obtain payment of it from L. & Co., and the jury further found that he did. Held, that if L. & Co. had paid one of the drafts the defendant could not in law have been found guilty of the statutory misdemeanor j and, consequently, that he could not be found guilty of attempting to commit the Common Law misdemeanor. CROWN CASES RESERVED. 233 That the said Messrs. Z>uncan, Sherman & Co. had 1853. been and were accustomed to give to such persons as qarrett'T should apply to them for the same authority to de- Case. mand from the said Sir Peter Laurie and others, as such bankers and correspondents as aforesaid, pay- ment of divers sums of money for account and on the behalf of the said Messrs. Duncan, Sherman &. Co. That the said Sir Peter Laurie and others, as such bankers and correspondents as aforesaid, had been and were accustomed to pay to the persons so authorized as aforesaid, the sums of money demanded by them in pursuance of such authority, for the account and on the behalf of the said Messrs. Duncan, Sherman &, Co. That the prisoner Gabriel Sans Garrett, vieW know- ing the premises and being an evil-disposed person, and devising and designing &c. on the 3rd March, 1853, at the parish &c. within the jurisdiction, &c. did demand payment for the account and on the be- half of the said Messrs. Duncan, Sherman & Co. from the said Sir Peter Laurie and others, as such bankers and correspondents of the said Messrs. Duncan, Sher- man & Co. as aforesaid of the sum of l,i{00^. and did then and there unlawfully and falsely pretend to the said Sir Peter Laurie and others that he the said Gabriel Sans Garrett had been and was then duly authorized by the said Messrs. Duncan, Sherman & Co. for their account and on their behalf, the payment of the said sum of 1,200/. from the said Sir Peter Laurie and others, as such bankers and correspondents of the said Messrs. Duncan, Sherman & Co. as aforesaid, with intent, &c., unlawfully, &c., to obtain from the said Sir Peter Laurie and others divers moneys to a large amount, to wit 1,200/. of the moneys and pro- perty of the said Sir Peter Laurie and others, to cheat and defraud them of the same. Whereas the said Gabriel Sans Garrett, had not 234 CROWN CASES RESERVED. 1853. at any time been, and was not then or at any time Garrett's ^iily or at all authorized by the said Messrs. Duncan, Case. Sherman &. Co., to demand for their account or on their behalf or otherwise, from the said Sir Peter Laurie and others, as such bankers and correspon- dents of the said Messrs. Duncan, Sherman & Co., as aforesaid or otherwise, the payment of the said sum of 1,200/. or any part thereof. Which said false pretence the prisoner at the time, &c., knew to be false. And so the jury say that the said Gahriel Sans Garrett, hy means of the said false pretences, on the day, &c., at the parish, &c., did attempt and endea- vour unlawfully, &c., to obtain from the said Sir Peter Laurie and others, such money as aforesaid, then being their property, and to cheat and defraud them thereof. The 8th count stated the pretence to have been made to Thomas Druitt, then being clerk to Sir Peter Laurie and others, and was in other respects the same as the 7th. The 15th count charged that on the same day and year, he did unlawfully, &c., pretend to Sir Peter Laurie and others, that he had been and then was duly authorized by Alexander Duncan and others, then carrying on business in New York, in the United States of America, under the style or firm of Messrs. Duncan, Sherman & Co., to demand payment for their account, and on their behalf of the sum of 1,200/. from the said Sir Peter Laurie and others, with intent, &c., unlawfully to obtain from the said Sir Peter Laurie and others, 1,200/. of the moneys and property of the said Sir Peter Laurie and others, and to cheat and defraud them of the same ; whereas the said prisoner had not at any time been, and was not then or at any time duly or at all authorized by the said Alexander Duncan and others, to demand for their account or CROWN CASES RESERVED. 235 on their behalf or otherwise, from the said Sir Peter 18/53. Laurie and others, the payoient of the said sum of "q^ RRETT S 1,200/. or any part thereof, which said false pretence ^^^^• at the time, &c., the prisoner knew to be false. And so the jury say that the prisoner by means of the said last mentioned false pretence, on the day and year, &c., at the parish, &c., and within the jurisdiction, &c., did attempt and endeavour unlawfully, &c., to obtain from the said Sir Peter Laurie and others, such moneys as aforesaid, then being their property, and to cheat and defraud them thereof. The 16th count is similar in form and substance to the 9th count, but alleges that the pretence was made to one Thomas Druitt, then being clerk to Sir Peter Laurie and others. The prisoner was convicted on these counts only, and it is unnecessary to state the others. On the trial it appeared that Messrs. Duncan, Sher- man & Co., of New York, the correspondents of the Union Bank in London, in which Sir Peter Laurie and others were partners, were in the habit of issuing cir- cular letters of credit for certain sums, with a list of correspondents in different parts of the world, autho- rizing the person to whom letters of credit were given to draw in favour of one of those correspondents, for such part as he might require of the stipulated sum for which the letters of credit were given. The Union Bank correspondent, on giving cash on such draft, was to endorse the amount on the circular, and when the whole was advanced the last person making an advance retained the circular. The circular letters of credit were each numbered with distinctive numbers. The prisoner having procured such a circular from Messrs Duncan, Sherman & Co., at New York, for 210Z., No. 41, came to England and there drew drafts in favour of the named correspondents there to the VOL. I. s 236 CROWN CASES RESERVED. 1853. amount in different sums of less than 210/., and con- Garhett's sequently retained the circular letter of credit, those Case. sums being endorsed on it. He then went to St. Peters- burg, and there exhibited the letter of credit to Wilson 8c Co., of that place, one of the firms mentioned in the list of correspondents, it having been then altered by him by the addition of the figure 5 to 210?. and con- verted into a letter of credit for 5,210?., No. 41. He obtained from that house several sums, and finally a sum of 1,200?. and another of 2,500/. on drafts for those amounts on the Union Bank drawn by the pri- soner in favour of their firm in London, all of which were endorsed on the back of the letter of credit. Wilson & Co. on receiving those drafts forwarded them to their house in London, and they duly pre- sented the draft for 1,200?. on the Union Bank and required payment of it. It becomes unnecessary to state the circumstances as to any other draft, the proof of one case being sufiicient to raise the point made for the defendant. The Union Bank having been advised of the draft, No. 41, by Sherman & Co. as a draft for 210?. only, and so disr covering the fraud, refused to pay the 1,200?., and the defendant being afterwards found in England was taken in custody, and then the indictment in question ■was preferred against him. Robinson, the prisoner's Counsel, contended, 1st. That the prisoner had committed no offence in London. 2ndly. That he had not committed the offence charged in the indictment. I thought a person, though personally abroad, might commit a crime in England, and be afterwards punished here ; as, for instance, if he by a third person sent poisoned food to one in England, meaning to kill him, he would be guilty of murder if death ensued, CROWN CASES RESERVED. 237 although he could not be amenable to justice till he 1853. was personally within the jurisdiction, and I thought garrett's" it was a question for the jury whether, although the Case. prisoner's immediate object was to cheat Wilson & Co., at St. Petersburg, by means of the forged letter of credit, he did not also mean so that they or their cor- respondents or the indorsees from them should present the draft which was unauthorized by the true letter of credit, and obtain payment of it from the Union Bank in London by presenting it as a true one, and I left the question to the jury whether he did so intend, and the jury found that he did. The prisoner's Counsel also contended that if he did so mean, and could be considered as making Wilsonh Co., of London, his innocent agents to present the unauthorized cheque, that he did not mean to obtain the amount of the cheque from the Union Bank in the sense of that word in the indictment which it was contended meant an obtaining for himself, but that he only meant to enable Wilson & Co. to obtain it for themselves. Rex v. Wavell (I Moody C. C.) was cited. I thought it right not to pass sentence on the prisoner, but to respite judgment until the opinion of the Judges could be taken upon both these points. I accordingly request their opinion. J. Parke. This case was argued on 19th November, 1853, co?'a»2 Jervis C. J., Pollock C. B., Parke B., Cole- ridge J., Williams J., and Crompton J. ; .and re- argued November 26th, 1853, coram Lord Campbell C. J., Parke B., Coleridge J., Maule J., Platt B., Williams J., Talfourd J., and Crompton J. Byles Serjt. (with him Robinson). 1st. The defendant did not intend or attempt to s 2 238 CROWN CASES RESERVED. 1853. defend the Union Bank at all in contemplatioa of Garrett's ^^^' Case. 2nd. When the draft was presented by Wilson & Co. he had committed no offence in England, and would not if it had been paid. 3rd. He did not intend to obtain any "chattel, money, or valuable security" within the meaning of 7 & 8 Geo. 4, c. 29, s. 53. Upon the last point we contend that even if money had been parted from by the Union Bank, yet the de- fendant would not have obtained any " chattel, money, or valuable security." Wilson & Co. would indeed have obtained the money but for their own benefit, and they would not have been bound to account to the de- fendant. He would only have obtained credit in account with the Union Bank by overdrawing his account. This is, however, scarcely an open question, as it seems to have been decided in Hex v. Wavell, 1 Moo. C C. 224. There the defendant obtained credit in account from his own bankers by lodging with them a fictitious bill of exchange, and it is held that although the bankers paid money for him in consequence, by honouring his cheques drawn in favour of other per- sons, yet it was not a case within the statute. Lord Tenterden, saying " he only obtains credit in account, somebody else receives the money.'' That case can- not be distinguished from the present. Suppose a man utters a 51. note, knowing it to be forged. As between himself and the person to whom he utters, he might, supposing the misdemeanor did not merge in the felony, be guilty of obtaining money by false pre- tences, but if the note subsequently passed through the hands of fifty other persons it cannot be said that every time it ehanged hands there would be an obtain- ing money by false pretences. Lord Campbell C. J. — After he once had the money he would have no further interest in the matter. CROWN CASES RESERVED. 239 Byles Serjt. So here it was a matter of indif- 1853. ference to the defendant whether the draft were paid garrett^ or not. If a man draws a cheque upon a banker Case with whom he has no account, or to an amount beyond his account, that is a fraudulent pretence to whom it is presented, but not to the banker. Rex v. Lara, 6 T. R. 565. Huddleston (with him Dearsly), in support of the conviction, was then heard upon this point. It is not necessary to constitute an offence within the act of Parliament, that there should be a getting of money from the party himself, or his use, but the inducing another to part with his money under such circum- stances as amount to cheating is sufficient. The words of the statute are, " obtain from any other per- son." Suppose a man intending to ruin another induces him, by a false pretence, to part with a large sum of money to a third party, would it not be obtain- ing money under false pretences? Maule J You say it is sufficient if a man, by a false pretence, induces another to spend his money ? Huddleston. There must be the intent to cheat or defraud. Maule J. — The word " obtain" means the same as the word "get," in its sense of " acquire." Coleridge J.— -You must consider the word with reference to its use in the statute, which draws a dis- tinction between larceny and false pretences. Huddleston. Tlie statute does not contemplate the benefit of the party defrauding, but the injury to the party defrauded ; Jieg. v. Jones (1 Den. C. C. 188). Here there was an acquiring to the use of the defend- ant. It is not necessary, that the party from whom the money is obtained should actually hand it over to the person making the false pretence. This case is distinguishable from that put on the other side of the 240 CROWN CASES RESERVED. 1853. 51. forged note. The jury have found, that defendant Garrett's meant that Wilson & Co. in St. Petersburg, or their Case. correspondents, or indorsers, should present the draft, and obtain payment of it from the Union Bank. Thus Wilson & Co. are the agents pointed out and mentioned by the defendant himself, as the persons to whom the Union Bank, with whom he falsely asserts he has credit, should pay the money. They are the persons to receive it. Lord Campbell C. J. — What were they to do with the money when received ? Huddleston. They w^ere to apply it to his use. An actual reduction of the money into the possession of the defendant cannot be necessary. Wavell's case is distinguishable, the decision being, that no specific sum was obtained, but credit in account. Coleridge J, — How is the false pretence made out? He had the circular letter of credit in his possession. The cheque imported only that he had funds. Parke B. — The cheque itself represented that it was authorized by the letter of credit. It referred to it by the figures 41. But that point is not reserved. Huddleston. If the bankers had paid the money, they might have sued defendant for money paid to his use. Their payment to Wilson & Co. would have been a good payment to him. Byles Serjt. replied. The Court then gave judgment, with argument upon the first two points made, as follows : Lord Campbell C. J. — I am of opinion that the conviction cannot be supported. The question is, whether supposing the Union Bank honoured the de- fendant's draft upon them, he could then have been indicted under this act of Parliament, for obtaining CROWN CASES RESERVED. 241 any chattel, money or valuable security'. I am clearly 1853. of opinion he could not. I do not proceed upon the garrett's ground that the oflFence was committed beyond the *^"'*^- jurisdiction of the Court, for if a man employ a con- scious or unconscious agent in this country, he may be amenable to the laws oi England, although at the time he was living beyond the jurisdiction; but I think this would not have been an obtaining of money within the meaning of the act of Parliament, which contemplates the money being obtained according to the wish and for the advantage, or at all events to gain some object of the party who makes the false pretence. Here it was not to gain any object, and it was not according to his wish. He would derive no benefit from the cheque being honoured. He had obtained his full object in St. Petersburg, and had the money in his pocket, and it would have been for the advantage of the defendant if the draft had been burnt or sent to the bottom of the sea. The statute was intended to meet a failure of justice arising from the distinction between larceny and fraud. But with regard to larceny, we must see whether there is not some advantage to be gained, not necessarily a pecu- niary advantage, but some wish gratified by the taking and conversion, otherwise it would not be larceny. Then we are pressed by the finding of the jury, but they merely meant to say that the defendant foresaw that the cheque would be preseuted to the Union Bank, and not that he wished it. In one sense it may be said, that he meant it according to the maxim, that every body must be presumed to mean, or intend the natural consequences of his act, but it is impossible to say that it was the real wish of the party when he drew tire cheque, that it should be presented and honoured. A gross fraud has been committed, but not an obtaining money under false pretences within the statute. 242 CROWN CASES RESERVED. 1853. Parke B The word " obtain," as used in the Garrett's Statute, seems to mean not so much a defrauding or Case. depriving another of his property, as the obtaining some benefit to the party making the false pretence. In WaveU's case, there was a false pretence, with the view of obtaining a specific sum of money, and it appears to have been decided upon the ground that no chattel or valuable security was obtained by means of that false pretence. The difficulty I have had, sup- posing it to be the law, that this is not a case in which the party may be considered as having obtained some benefit, but I do not feel so strongly upon this point as to compel me to differ in opinion from my Lord. It is not shewn that he would have obtained the money if the draft had been honoured and the money paid. I think therefore this conviction fails. Coleridge J. — Upon the question of construction, the point to be considered is, whether if the money had been obtained, this would be a case within the 53rd section of the Act. It is quite clear it cannot be said the defendant actually obtained the money himself, nor do I think he obtained it by means of any agent. The obtaining must be either by the party's desire or intention, or for his benefit, but there is no foundation for saying that the money would have been obtained in this case, either in one of these ways or the other. The defendant did not desire it, he could not have intended it, for he knew perfectly well that the payment was out of the ques- tion. The finding of the jury only means, that the defendant contemplated it as a probable thing, that Wilson & Co. would present the draft. Maule J — I think all that the defendant did with respect to the matter in hand was done at St. Peters- burg and no part of it in London. That which was done in London by Wilson & Co. is sought to be brought home to the defendant as an act of his, when CROWN CASES RESERVED. 243 it is clear he would desire that that very act should 1853. not be done. It is quite clear the jury never intended Gabkett's to say (if they did it is quite contrary to the facts of c;ase. the case) that he requested, desired or ordered or made Wilson & Co. his agents to present the draft, but they must have meant that he considered that would take place which would naturally take place. If a man utters a forged note with intent to defraud the Bank of England, if the Bank pay the note, they would be defrauded and he must be responsible for his act. The question there depends upon the manner or mode in which the Bank parts with the money and not upon who gets it. By the circum- stances under which the Bank is cheated out of their money they are defrauded. But whether money is obtained or not by false pretences does not depend upon the mode in which it is obtained, but upon the per- son and manner by whom and in which it is received. Here the money would have been obtained by some- persons whom he foresaw would present the draft. They did not mean to apply the money to his purposes but their own. I am therefore of opinion that the prisoner is not criminally responsible for what took place in London. He did not order it to be done. It was no act of his. And for the prisoner's own act in St. Petersburg he is not responsible in London. Platt B. — The matter was complete as far as the defendant was concerned when the parties at St. Petersburg were deluded into giving him money upon the cheque. It cannot be said that a party who presents a cheque for his own benefit is the agent of another who receives no benefit whatever. The other members of the Court concurred. Conviction quashed. 244 CROWN CASES RESERVED. 1853. REGINA V. BAILEY. The prisoner Thomas Bailey was tried at the Middlesex Ses- undeSi4 s'ons, on Monday, 31st October, 1853, before Henry & 15 Vict. Witham, Esq., upon an indictment under the " Act withVaviDg for the better Prevention of Offences," 14 & 15 Vict. in his posses- c 1 Q o 1 sion, without ■>■■•• -n -7 i lawful ex- The indictment charged that Thomas Bailey on the implements fifth day of October in the year of our Lord one thou- of house- gjjfj eight hundred and fifty-three, about the hour of breaking, &c. ° j ' The jury twelve in the night of the same day at the parish of prisoner Saint James Westminster in the county of Middlesex, guilty. Held, ^yjjg found bv night as aforesaid then and there having that It was . , . . . . notnecessary in his possession without lawful excuse certain imple- indicta^ent^" meuts of housebreaking, to wit, one chisel and one under this jemmv against the form, &c. The iurv found the pri- section, the •> J <=> ' _ j j i words, "with souer guilty of possession without lawful excuse, and commit°a t'^^J ^^^'^ fouud that there was no evidence of an intent felony." jq commit a felony. It was contended on behalf of the prisoner by his Counsel, in his address to the jury, that there was no evidence of an intent to commit a felony, and that such evidence was requisite. After verdict it was further contended that the omission of the words " with intent to commit a felony" was bad in arrest of judgment. Judgment was postponed, and the said Thomas Bailey was committed to the House of Correction at Clerkenwell to abide the decision of the Court of Appeal. The opinion of the Court of Appeal is requested as to whether the omission of the words " with intent to CROWN CASES RESERVED. 245 commit a felony" is bad in arrest of judgment, and ^^^^- whether it was necessary to prove an intent to commit Bailey's a felony. ^"''• Henry Witham. This was argued on the 26th November, 1853, before Lord Campbell C. J., Parke B., Coleridge J., Maule J,, Platt B., Williams J., Talfourd J., and Crompton J. Metcalfe, who had defended the prisoner at the Sessions, was not instructed. Huddleston, for the Crown, read the different sec- tions of the act of Parliament. The Court unanimously confirmed the conviction. Conviction affirmed. REGINA V. LUCKHURST. ,^53 The prisoner was tried before me at the last Maid- ^^ induce- stone Assizes, on a charge of having committed an menttocon- unnatural crime with a mare. shape of a The first witness for the prosecution was John heU^ouTto Taylor, the material part of whose evidence was as the prisoner, ■^ ' who was sus- loUoWS : spected of an offence, hy a person hav- ing no authority, and without the nature of the charge being stated, but in the presence and hearing of a person who had authority. Subsequently, the nature of the charge was stated by the same person in the same presence and hearing, and thereupon a confession was made. Held, that the confession was not admissible. 246 CROWN CASES RESERVED. 1853. I live at Canterbury. On the 2ad of June I had a LuckT" stall in a stable at the George and Dragon, and kept hurst's a fnare there. There was a gate in front of the stall in which she was. People could look through the bars of it, and could get over into the stall. I had locked it on the 2nd of June. In the evening I found a man in the stall. The prisoner was the man. It was then after eight o'clock. I asked him what busi- ness he had there? He said, some one had locked him in. I said, I had the key in my pocket. I asked him what was the matter with the mare ? He said, he had not hurt it. I said, your trousers are undone. Then I let him out. Then I went and told Mr. Willard, the landlord of the stable. After he left, I looked at the mare. She was bleeding, and kept straining. There was wet dung on the , corn-chest, and footmarks on it. Willard went to the stable, and then to Crow's with me. We there saw the prisoner. Willard asked him, what business he had in the stable ? I observed some hairs on the prisoner's trousers, all round the front. I picked them off, and shewed them to him. The outer door of the stable was not locked. Michard Willard. I keep the George and Dragon. I went with Taylor, on the 2nd of June, to the stable observed the condition of the mare — very restless. I went with Taylor to Crow's, and saw the prisoner. I called him out, and said I wished to speak to him. I said, I wished to know what business he had in Taylor's stable, as it was my fault leaving the outside door open, and he must have gone through my pre- mises to get to Taylor's. He said, " You know." I said, I don't know, and have come on purpose to knowj and will know before I leave ; and if you don't tell me, I will give you in charge to the police till you do tell me. He said again, " You know." I said CROWN CASES RESERVED. 247 I don't know, but according to what I could see of 1853. the mare, it is the best of my belief that you had luck^ connexion with her. He said, " I had. For God's hurst's Case. sake say nothing about it!" He offered to treat me, or give me any thing to say nothing about it. Then I left him at Crow'B bar. Taylor was close by at the time when I had this conversation with him. Cross-examined. — I called you a dirty beast, and left you directly. You and Taylor then went to the stable. The prisoner was not defended by Counsel, and no objection was made by him to the evidence, but the Counsel for the prosecution called my attention to the nature of it before it was given. I thought it best to receive the evidence and reserve the question of its admissibility. The prisoner was found guilty, and judgment of death recorded. I have now to request the opinion of this Court whether the evidence of Willard was admissible or not. C. Cresswell. This case was considered on November 26th, 1853, by Lord Campbell C. J., Parke B., Coleridge J., Maule J., Platt B., Williams J., Talfourd J. and Crompton J. Parke B. We have considered this case, which was not argued by Counsel. The question is, whether the admission made to the witness Willard was re- ceivable in evidence. The prosecutor, John Taylor, states that he had a stable in which he kept a mare, and that he found the prisoner in the stable. The witness, Richard Willard. I went with Taylor on the 2ud of June to the stable. I observed the con- dition of the mare — very restless. I went with Taylor 248 CROWN CASES RESERVED. 1S53. to Crow's and saw the prisoner. I called him out and Lock- said I wished to speak to him. I said I wished to ^J"'^ know what business he had in Taylor's stable, as it was my fault leaving the outside door open, and he must have gone through my premises to get to Taylor's. He said, "You know." I said I don't know, and have come on purpose to know, and will know before I leave, and if you don't tell me I will give you in charge to the police till you do tell me. This is a threat undoubtedly, though up to this time the charge had not been mentioned. This witness goes on to say that the prisoner again said, " You know," and that he (the witness) said, I don't know, but according to what I could see of the mare, it is the best of my belief that you had connexion with her. The prisoner said, "I have ; for God's sake say nothing about it!" We are of opinion that the evidence of this witness was not admissible. There was a threat. I allow it may be objected at the time of the threat there was no statement of the charge, yet before the confession he was told, in the presence of Taylor, that the charge was for having had connexion with Taylor's mare, which is just the same as if the threat had been made by Taylor himself, and he being the owner of the mare was a person in such authority that a threat by him would exclude a subsequent confession. The conviction therefore must be reversed. Conviction quashed. CROWN CASES RESERVED. 249 REGINA V. SLEEMAN. 1853. This case was tried before me at the last Summer The prisoner, Assizes for Exeter (1853), and the prisoner was con- ^^T,viTJ' Victed. indictedfor setting fire The prisoner was the servant o{ John Sandercock, to a farm and was indicted for setting fire to a farna building be- 5,"^ nJafte°r's. longing; to her master on the 2nd of June, 1853. She Shewastaken o a /-I cii T into custody was taken into custody by George Slee, a policeman, by a police- on the 15th June. She was about to go away from ^deavoured him but he prevented her, saying she was his prisoner toge' away. upon the charge of this arson. She then desired to shewasapri- change her dress. He said she might do so but that charge°of' ^ she must remain in custody, and he gave her into the arson. She 1 p n/r All Tin 4 11 • 1 desired to charge 01 a Mrs. Allen. Mrs. Allen was a married change her daughter of her master's, but did not live in her father's pSt"edT house, and had no control over the prisoner by reason do so, having first D66II of any relation of master and servant. Mrs. Allen given into went with her into a lenny where her clothes were, but the charge of both Mrs. Allen and the prisoner considered that the married latter was in custody. The following is the evidence thrmaster, of Mrs. Allen, so far as is necessary to raise the ''"' having •' no control question : — over the pri- The prisoner was given into my charge by George ll^"{ any*^ Slee the policeman. I took her into the lenny to relationship of mfl'itfir 3.rifi change her clothes. The first thing I said to her was, servant. "Whilst alone with Mrs. .4., the prisoner being in custody, the former said to the prisoner, " I am very sorry for you ; you ought to have known better. Tell me the truth, whether you did or no." The pri- soner said, " I am innocent." Mrs. A. replied, " Don't run your soul into more sin, but tell the truth." The prisoner then made a full confession. Held, that there was neither an authority to make any inducement nor any induce- ment or threat, and that the evidence was admissible. 250 CROWN CASES RESERVED. 1853. Jane I am very sorry for you, you ought to have known Sleeman's better, tell me the truth whether you did it or no. Case. She said, "I am innocent." I said, Don't run your soul into more sin, but tell the truth. She then began to cry, and sat down, and said that she took a crop of furze from the mow frame, and she only meant to burn the machine house. She then went on to state how she set the place on fire, and made a full con- fession of her guilt. I postponed the judgment as 1 desired the opinion of the Court of Criminal Appeal whether the above confession was legally admissible in evidence, and if not legally admissible, I request that the Court may make an order for the discharge of the prisoner. Samuel Martin, August 3, 1853. This case was considered on November 26th, 1853, by Lord Campbell C. J., Pabke B., Coleridge J., Maule J., Platt B., Williams J., Talfourd J., and Crompton J, Parke B. (having read the case). — We are of opinion that in this case there was no threat or in- ducement, and no sufiicient authority on the part of Mrs. Allen to exclude a statement made in conse- quence of any inducement to confess held out by her. The conviction therefore will be afiirmed. Conviction affirmed. CROWN CASES RESERVED. 251 REGINA V. HENRY MARSHALL STONE. 1853. At the York Summer Assizes, 1853, the prisoner A Master Ex- was found guilty of perjury in an affidavit used in in^theCom-t the Court of Admiralty, in a suit for salvage. The of Chancery affidavit was sworn before a Master Extraordinary in thoritjrto r\v. administer an Chancery. oath in a suit And upon objection that this officer had no au- in the Court ,. T m ^ • 1/-1 r of Admiralty. thority to take an affidavit to be used in the Court 01 Admiralty, evidence was adduced that the practice oi the Court of Admiralty had been to receive affidavits so sworn, and In re Hogg (1 Rob. Adm. Rep. 174), and 6 & 7 Vict. c. 82, were cited. The prisoner was admitted to bail, and the question for the decision of the Court is, whether the conviction is valid. W. Erle. This case was argued on the 19th November, 1853, coram Pollock C. B., Parke B., Coleridge J., Williams J., and Crompton J. Cross, for the prisoner. The question for the con- sideration of the Court is, whether a Master Extra- ordinary of the Court of Chancery has authority to administer an oath and take an affidavit to be used in a suit in the Court of Admiralty : it is submitted he has no such power. Masters Extraordinary were first introduced in the time of Sir Christopher Hatton, and they are appointed by order of the Chancellor, and not by commission. At first their jurisdiction did VOL. I. T 252 CROWN CASES RESERVED. 1853. not exceed three miles from London, which was after- S^„^j,,g wards extended to twenty miles. The practice of the Case. Court of Admiralty in receiving such affidavits cannot in itself confer an authority to administer an oath. The Court here called upon Perronet Thompson {Dighy Seymour with him), for the Crown. The Court of Admiralty has always received such affidavits. And it is sub- mitted that the practice of the Court has, in fact, constituted the Masters Extraordinary officers of that Court for the purpose of taking affidavits. It is said in 1 W. Rob. Adm. Rep. 174, that " affidavits sworn before MastersExtraordinary must contain in the jurat the insertion of the place where they were sworn." And this was necessary, as an affidavit sworn beyond the prescribed limits was a mere nullity. In that case it was not even questioned that within limits a Master Extraordinary had authority to take affidavits to be used in a suit in the Admiralty Courts. Parke B. — Surely the practice of the Court of Admiralty cannot confer on the Masters Extraordinary authority to administer an oath. Perronet Thompson. The Court of Chancery, from the earliest period appears to have had an Admiralty jurisdiction, and the Masters in Chancery appear to have been coeval with the Court. In Com. Dig- Chan, b. 5, we find the following : " Cancellario associentur Clerici honesti, &c. Regi Jurati qui in Legibus et consuetudinibus AngHcanis noticiam habent pleniorem quorum officium sit querelas, &c. audire et examinare et debitum reraedium exhibere per brevia Regis." The learned Counsel cited Fleta, lib. 2, c. 13 ; Co. Lit. 260, 2 Inst. 407 ; Edwards on Admiralty Juris. 8.31; Hen. 6. Rot. Pari, vol.5, p. 268 ; 25 Hen. 8, c. 19 ; 8 Eliz. c. 5 ; Blad v. Barn- field, 21st Nov. 26 Car. 2 ; Denew v. Stock, Finch. CROWN CASES RESERVED. 253 Chan. Rep. 437 ; The Sylvan Bell, 2 Ad. Rep. 155. 1853. In the 16th section of the 14 & 15 Vict. c. 99, every Stone's Court, Judge, justice, &c. having authority to hear, ^*'*' &c., is thereby empowered to administer an oath. Pollock C. B — This conviction is wrong. The Masters Extraordinary in Chancery have no authority, by virtue of their commission, to administer an oath in matters in the Court of Admiralty. No practice of that Court can confer such authority. It is pro- bable that the Court of Admiralty may have acted upon such afiSdavlts, because though perjury could not be assigned on them, a person making such an affidavit with a view to its being received by the Court, knowing at the same time that it was false, would be guilty of a misdemeanor, and so liable to be punished. Parke B. — I am of the same opinion. The autho- rity of a Master in Chancery is coeval with that Court, and the Lord Chancellor is not restricted in the appointment of them. That, however, does not prove that they may take aflSdavits on oath admini- stered by themselves, to tte afterwards used in a suit in the Admiralty Court. The authorities relied upon by the prosecution only go to shew, that in proceed- ings in Chancery, if that Court has an Admiralty jurisdiction, the Masters may administer an oath, but that proves nothing when the cause is in the Admiralty Court. I concur with the Chief Baron, in saying that any person making such an affidavit, knowing it to be false, would be guilty of a misdemeanor. The rest of the Court concurred. Conviction quashed. T 2 254 CROWN CASES RESERVED. 1853. WILLIAM DUGDALE v. THE QUEEN. Upon a writ of error on a conviction of misde- meanor, the 8 & 9 Vict. c. 68, is not complied with by a recognizance the condition of which is that the defendant in case of affirmance of the judgment shall sur- render him- self per- sonally to Vie dealt with as the Court of Exchequer Chamber may order; and the Court will order fresh process to issue for the apprehension and recom- mitment of the plaintiff in error in a criminal case where he has been discharged from prison, without a proper recog- nizance hav- ing been duly filed and certified. Writ of Error in the Queen's Bench. The plaintiff in error was tried before Mr. Serjt. Adams, at the Westminster Sessions, on the 24th oi September, 1851, upon indictment charging him with unlawfully pre- serving and keeping certain lewd and obscene prints, and also with obtaining and procuring the same, with the intent and for the purpose of uttering and selling the same. He was found guilty, and sentenced to be imprisoned for two years, whereupon a writ of error- was sued out. The errors assigned were, that the indictment shewed no offence upon the face thereof known to the law, the 1st count merely charging the defendant with procuring indecent pictures for the purpose of afterwards unlawfully publishing and selling them, which was not an indictable offence ; the 2nd count, with keeping the same pictures in his possession for the same purpose ; the 3rd, 4th and 6th counts, with procuring obscene libels for a libellous purpose; and the 5th and 7th counts charging the defendant with keeping in his possession the same obscene libels for the same purpose ; and the plaintiff in error prayed that the judgment for these errors and other errors appearing in the record and pro- ceedings might be reversed, annulled, &c. ; joinder in error. This case was argued in January, a.d. 1853, before Lord Campbell C. J,, Coleridge J., "Wightman J., and Crompton J., when the Court held that the counts in the indictment, charging that the defendant CROWN CASES RESERVED, 255 did unlawfully obtain and procure obscene prints with 1853. the intent and for the purpose of unlawfully uttering d UGDALB S and selling the same, and thereby corrupting the ^*®^' morals of the liege subjects of the Queen were good, and charged a misdemeanor punishable at common law, and that the counts in the indictment, charging the defendant with preserving and keeping in his possession obscene prints with a like intent, and for a similar purpose were insufficient in law, and therefore there was judgment for the Crown ; when Lord Campbell C. J., ordered the defendant's bail then to produce the defendant in Court, not for sentence, but in order that the Court might commit him to prison. Neither the defendant, nor his bail, appeared in Court when called. Clarkson, for the Crown, prayed that the recogni- zances of the defendant and his bail might be estreated, and the Court ordered the recognizances to be estreated accordingly (a). In Trinity Term, 1853, Clarkson obtained a rule calling upon the plaintiff in error to shew cause why he should not be apprehended and recommitted to the custody of the keeper of the House of Correction at Clerkenwell, in the county oi Middlesex, in execution of the judgment. The affidavit upon which the rule was moved in the Queen's Bench, set forth the conviction at tlie sessions, and the sentence thereon ; that on a writ of error that judgment was affirmed on several counts in the indictment, and that the said Williavi Dugdale was thereupon recommitted to prison ; that on the 7th of April another writ of error was issued, at the instance of the said William Dugdale, to the Court of Exchequer Chamber, and he was (a) See ante, p. 76. 256^ CROWN CASES RESERVED. 1853. discharged from prison on tile 9th of April, upon DtjGDALB's putting in bail to prosecute the writ; that no ■ Case. notice was given to the prosecutor ; that the re- cognizance of bail had not been filed at the Crown Office; that no certificate had been made out pursuant to the 8 & 9 Vict. c. 68, s. 2, and 9 & 10 Vict. c. 24, S.-4, and that no recognizance whatever was filed till 13th April. Metcalfe, on a subsequent day for the plaintiff in error, shewed cause against the rule. It is contended for the Crown, that the discharge of the plaintiflFwas wrong, as no recognizance had been filed at the Crown Office, and no certificate iss^ued by the Master as the statute required, and that the justification of bail was insufficient. Our affidavit states, that the bail were duly sworn and examined, &c., and an order duly made for the discharge, and that the recognizance was filed within four days afterwards, when the Master made out his certificate of the filing. WiGHTMAN J. — In case of the affirmance of the judgment, the recognizance is, that he shall surrender himself personally, to be dealt with as the Court of Exchequer Chamber may order, and not, as the statute requires, that he shall be rendered to prison, according to the said judgment. Clarkson, contra, was not called upon. Lord Campbell C. J. — The recognizance is insuffi- cient, and the discharge from prison was not only contrary to the letter, but to the spirit of the act of Parliament. The other Judges concurred, (a) Rule absolute. (o) The recognizance was not set conditions of recognizance, see now out in the affidavit, but it being J' 16 & 17 Vict. c. 32. filed the Court inspected it. As to CROWN CASES RESERVED. 257 REGINA V. REED. 1854. At the General Quarter Sessions of the peace, for R. was sent the county of Kent, holden at Maidstone, on the 4'th („ ti,e rail- day of January, 1853, before Aretas Akers, Edward J^/-iq^I°'^o{ Burton and James Espinasse, justices appointed in coals, which and for the county oi Kent, Abraham Reed was tried pu°^were upon an indictment for feloniously stealing two cwt. placed m of coals, the property of William Newton, his master, put into the on the 6th day of December 1852 ; and one James xhrprisoner Peerless, was charged, in the same indictment, with was directed ... , , . , , , 1 by his master receivmg the coals knowing them to have been stolen, to bring the but was acquitted. The evidence of the prosecutor, ^°^^g^g*°'j^^^ William Newton, was as follows : " I am a grocer his way and miller at Cowden, and sell coals by retail. The out authority, prisoner Feed entered ray service last year, about ^f ^^q^^^ti^y three weeks before the 6th of December. Qn that of the coals day I gave him directions to go to a customer to take person, some flour, and thence to the staticm, at Edenbridge, i^eW, that for ten cwt. of coals. I deal with the Medway Com- when placed pany, who have a wharf there, Holman being wharf- ter's cart^^' inger. I told Reed to bring the coals to my house, were in the T. I 1 /^ II 1 11 master's pos- Reed went about 9 a.m., and ought to have come back session, and between 3 and 4 p.m. ; but as he had not come back propCTlyTon- I went in search of him, at half past six, and found victedof him at Peerless'. The cart was standing in the road opposite to the house, and the two prisoners were taking coals from the cart in a truck basket. It was dark. I asked Reed what business he had there. He said to deliver half a hundred weight for which he had received an order from Peerless. Reed had never before told me of such an order, and had no authority from me to sell coals. Later that evening VOL. I. u 258 CROWN CASES RESERVED. 1854. I went and asked Peerless what coals he had received Reed's from my cart. He said half a hundred weight. I ^^^^- then asked him how they were carried from the cart. He said in a sack. I weighed the coals when brought home, and found the quantity so brought at half a hundred weight and four pounds short. I went to Peerless' next day and found some coals apparently from half to three quarters." Upon his cross-exami- nation he stated as follows, I believe Peerless had sometimes had coals from me. When I came up they were shutting the tail of the cart, but some coals were in a truck basket at their feet. Meed said at once he had received an order from Peerless. It was two hours later when I asked Peerless and when he said he had ordered them. Heed said he had carried two cwt. in, but that was two hours after. On his re-examination he said, I think Peerless had some coals from me about a fortnight before the sixth. James Holman, another witness for the prosecution, said, I am a wharfinger to the Medway Company at the Edenbridge station, and Newton deals there for coals. Reed came there on the 6th of December and asked for half a ton for Newton, and I supplied him. I entered them at the time to Newton, and now pro- duce the book with the entry. James Handley , another witness for the prosecution. I am superintendent of the Sevenoaks division. On the 17th December I went to Peerless and asked him how much coals he had received from Reed. He said he had ordered half a hundred weight three weeks before. Reed, when I asked him afterwards, said three days before. Reed said he had received two glasses of wine from Peerless. On his cross-examination he said this was about 4 P.M. 7th December. CROWN CASES RESERVED. 259 Newton was then re-examined, and said: Reed 1854. came to me on the morning of the 7th. I told him j^gj,jj.g two cwt. and three quarters were missing. He then Case. said one sack had been left at the wharf by mistake. I therefore charged him with only three quarters. Holman, upon re-examination, said Meed left a sack behind him, but it was an empty one. This being the case for the prosecution, the Counsel for the prisoner submitted that there was no case to go to the jury on the charge of larceny, inasmuch as the possession of the coals left at Peerless' had never been in Newton the master. The Counsel for the prosecution contended that the coals were constructively in the possession of Newton, and that the oflFence was properly charged as larceny ; but that, under the provisions of the act of the 14 & 15 Vict. c. 100, s. 13, it was immaterial whether the offence were laceny or embezzlement, as the jury might find a verdict for either larceny or embezzle- ment. The Counsel for the prisoner thereupon, proposed that it should be left to the jury -as a charge of em- bezzlement ; but this was objected to. The Court were of opinion that there was a con- structive possession in the master, and left the case to the jury as one of larceny. The jury found the prisoner Guilty. The Counsel for the prisoner then applied to the Court to submit the case for the opinion of the Judges. The Court respited the judg- ment, and discharged the prisoner upon entering into recognizances ; and the Chairman reserved the point as to whether or not the prisoner was rightfully convicted of larceny upon the evidence. This case was argued on the 23rd April 1853, and was re-argped on the 19th of November 1853 before u 2 260 CROWN CASES RESERVED. 1854. Reed's Case. Lord Campbell C. J., Jervis C. J., Pollock C. B., Parke B., Coleridge J., Maule J., Erle J., Platt B., Williams J. and Talfourd J. (a). (a) The argument in this case was fully reported at page 168 of these Reports, under the impres- sion that judgment would have been given before that part was published ; but the learned Judges having differed in opinion the judgment was postponed from time to time, from the 23rd April, 1853, to January 21st, 1854. Under these circumstances, and as many fresh cases were cited, the Editor has thought it right to re-report the case. Ribton, for the prisoner. It is submitted that the offence of which the prisoner was guilty, if any, was embezzlement and not larceny. In every case of larceny there must be a taking from the possession of the owner, which possession may be actual or constructive. Formerly an actual possession was required, and this led to the 21 Hm. 8, c. 7. Constructive possession is of two kinds. 1st. When property is given to the servant by the master or into his charge or custody. 2ndly. Where the servant re- ceives goods from a third person, and the servant determines his possession by some act which vests the possession in the master. The constructive possession in this case is of the second kind, or else there is no possession in the master. There is a difference be- tween actual possession and the right to possession. The property cannot be said to be in the master until the subject-matter has arrived at its ultimate destination. PVaife's case, 1 Leach, 28 ; 2 East, P. C. 570. Rex V. Bazaley, 2 Leach, 835; 2 East, P. C. 571. Rexy. Ball, 2 Leach, 841. Rex-v. Walsh, 4 Taunt. 276 ; R. & R. 215 ; 2 East, P. C. 177. Lord Campbell C. J. — In the report in 4 Taunt, Heath J. re- ferring to Spear's case says, " That case went upon the ground that the corn was in the prosecutor's barge;" which was the same thing as if it had been in his granary. Ribton. The report in East dif- fers. Rex V. Sullens, 1 Moo. C C. 129. Rex V. Masters, 3 Cox, C. C. 178. Lord Campbell C. J. — How do you define a place of final deposit? Ribton. That would depend up- on the particular case. In this in- stance, the house of the master would be the final place of deposit. Lord Campbell C. J. — Sup- pose the coals to have been put in Ef moveable house, would not the coals be in the master's possession? Ribton. They would then be in the place of final deposit. Lord Campbell C.J. — Sup- pose the moveable house to be pushed on half a mile ? Parke B. — The master lives in the house. The cart is but the means of transit to some ulterior place of destination. Ribton. The stable door was considered a place of final deposit, in the case of R, v. Hayward, 1 C. & R. 508. Lord Campbell C. J. — Rex v. Spears is on all fours with this case. Parke B. — In Rex v. Spears it is not certain, looking at the re- ports in East and Leach, whether the judgment did not turn on the CROWN CASES RESERVED. 261 On the 21st January a.d. 1854, the following 1854. written judgment was delivered by reed's Lord Campbell C. J. — There lies before me a Case. judgment which I had prepared for myself at a time when there was reason to suppose that there might be one, if not more, dissenting Judge. I have reason to believe now that there will not be any dissent ; but still this judgment must be considered only as the reasons I give for my opinion, because I have no authority to say that my Brothers concur in that opinion, and the reasons for it. I have written my judgment, and my learned Brothers will say how far they concur or dissent. I am of opinion that the prisoner has been properly convicted of larceny. There can be no doubt that, in such a case, the goods must have been in the actual or constructive possession of the master, and that if the master had not otherwise the possession of them than by the bare receipt of his servants, upon the delivery of another for the master's use, although as against fact that the master had bought guishable from the present, unless the whole cargo. we imagine some fact not stated in ^se, for the prosecution. This the case, amounted to an oflfence at common Bjose. Rex v. Bull was a case of law. There was a trespass, as the money which constitutes a matter coals were asked forin the master's of account and no trespass would name, charged to the master in the lie. Higgs v. Halliday, Cro Eliz. bill, put into the master's sacks, 746. and then put into the master's Lord Campbei-l C. J. — Spear's cart. And so the master had con- caw is to be taken from the -znd structive possession before the ser- edition of Leach, as appears from vant had actual exclusive posses- Heath J. in 4 Taunt. Rex v. sion. Com, Dig., Trespass B. 4. Harding, R. & R. 125, was also This case cannot be distinguished cited. from Rex v. Spears. There may be Ribton, in reply, referred to Rex a constructive possession in the v. Waits, 2 Den. C. C. 14. There masternotwithstanding the manual the defendant divested himself of possession of the servant. Robin- the possession. In this case the son's case, 2 East, P. C. 565. coals had not reached their final Lord Campbell C. J. — I do not place of deposit. see how Spear's case can be distin- 262 CROWN CASES RESERVED. 1854. third persons this is in law a receipt of the goods Reed's by the master, yet, in respect of the servant himself, Case. this will not support a charge of larceny, because as to him, there was no tortious taking in the first instance, and consequently no trespass. Therefore, if there had been here a quantity of coals delivered to the prisoner for the prosecutor, and the prisoner having remained in the personal possession of them, as by carrying them on his back in a bag, without anything having been done to determine his original exclusive possession, had converted them animo furandi, he would have been guilty of embezzle- ment and not of larceny. But if the servant has done anything which determines his original exclu- sive possession of the goods, so that the master thereby comes constructively into possession, and the servant afterwards converts them animo furandi, he is guilty of larceny, and not merely of a breach of trust at common law, or of embezzlement under the statute. On this supposition he subsequently takes the goods tortiously in converting them, and commits a trespass. We have, therefore, to consider whether the exclusive possession of the coals continued with the prisoner down to the time of conversion. I am of opinion that this exclusive possession was determined when the coals were deposited in the prosecutor's cart, in the same manner as if they had been deposited in the prosecutor's cellar of which the prisoner had the charge. The prosecutor was undoubtedly in pos- session of the cart at the time when the coals were deposited in it, and if the prisoner had carried off the cart animo furandi, he would have been guilty of lar- ceny ; Robinson's case, 2 East, P. C. 565. There seems considerable difficulty in contending that if the master was in possession of the cart, he was not in possession of the coals which it contained, the coals being his pro- CROWN CASES RESERVED. 263 perty, and deposited there by his orders for his use. 1854. Mr. JRibton argued that the goods received by a ser- kbed'r vant for his master remain in the exclusive possession ^***- of the servant till they have reached their ultimate destination ; but he was unable, notwithstanding his learning and ingenuity, to give a definition of " ulti- mate destination," when so used. He admitted that the master's constructive possession would begin before the coals were deposited in the cellar, when the cart containing the coals had stopped at his door, and even when it had entered his gate. But I consider the point of time to be regarded, is that when the coals were deposited in the cart. Thenceforth the prisoner had only the custody or charge of the coals, as a butler has of his master's plate, or a groom of his master's horse. To this conclusion, with the most sincere deference for any of my learned Brothers who may at any time have taken a different view, I should have come upon principle, and I think that Spear's case is an express authority to support it. The fol- lowing is an exact copy of the statement of that case, signed by Buller J., in pages 182, 183, of the second ^ volume of the Black Book, containing the decisions •^^■^■-e-^^'^ o^O of the Judges in Crown Cases, and deposited with the Chief Justice of the Queen's Bench for the time being: — '' John Spears was convicted before me, at Kingston, for stealing forty bushels of oats of James Browne & Co., in a barge on the Thames. Browne & Co. sent the prisoner with their barge to Wilson, a corn meter, for as much oats as the barge would carry, and which were to be brought in loose bulk . The prisoner received from Wilson 220 quarters in loose bulk, and five quarters in sacks, the prisoner ordering that quantity to be put in sacks. The quantity in sacks was afterwards embezzled by the prisoner, and the question reserved for the opinion of the Judges is, 264 CROWN CASES RESERVED. 1854. whether this was felony, the oats never having been Reed's in the possession of the prosecutor, or whether it was ^*'^- not like the case of a servant receiving charge, or bringing a thing to his master, but never delivering it. " F. Duller." Vide Dy. 5, and 1st Show. 52. 25th April 1798. " Conviction proper." Now that is an exact copy from the Black Book, what follows, of course, is new. In that case the question was, whether the corn, while in the prosecutor's barge in which it was to be brought by the prisoner to the prosecutor's granary, was to be considered in the possession of the pro- secutor, and the Judges unanimously held that from the time of it having been put into the barge it was in the prosecutor's possession, although the prisoner had the custody or charge of it. That case has been met at the Bar by a suggestion that the whole cargo of corn of which the quantity put on board this barge was a part, was or might have been purchased by the prosecutor, so that he might have had a title and constructive possession, before the delivery to the prisoner. But the very statement of the case in the Black Book and the authorities there referred to, shew that the Judges turned attention to the question whether the exclusive possession of the servant had not been determined before conversion, and during the argument of R. v. Walsh (4 Taunt. 276), we have the ratio decidendi in Spear's case explicitly stated by one of the Judges who concurred in the decision — Heath J. " That case went upon the ground that the corn was in the prosecutor's barge, which was the same thing as if it had been in his granary." Read "cart" for "barge," "coals" for "corn," and " cellar" for " granary," and the cases are for this purpose precisely the same. There is no conflicting authority, for in all the cases relied upon CROWN CASES RESERVED. 265 by Mr. Ribton, the exclusive personal possession of 1854. the prisoner had continued down to the wrongful ^^,^,^,3 conversion. It is said there is great subtlety in Case, giving such an effect to the deposit of the coals in the prosecutor's cart, but the objection rests upon a subtlety wholly unconnected with the moral guilt of the prisoner ; for as to that it must be quite imma- terial whether the property in the coals had or had not vested in the prosecutor prior to the time when they were delivered to the prisoner. We are to determine whether this would have been a case of larceny at common law before there was any statute against embezzlement, and I cannot think that there would have been any reproach to the administration of justice in holding that the subtlety arising from the prosecutor having had no property in the subject of the larceny before its delivery to the prisoner who stole it, was sufficiently answered by the subtlety that when the prisoner had once so parted with the personal possession of it that a constructive possession by the prosecutor began, the servant who subsequently stole it should be liable to be punished, as if there had been a prior property and possession in the prosecutor, and that the servant should be adjudged liable to be punished for a crime instead of being allowed to say that he had only committed a breach of trust, for which he might be sued in a civil action. In approaching the confines of different offences created by common law or by statute, nice dis- tinctions must arise and must be dealt with as in the present case. It is satisfactory to think that the ends of justice are effectually gained by affirming the conviction, for the only objection to it is founded upon an argument that he ought to have been'convicted of another offence of the same character, for which he would have been liable to the same punishment. 266 CROWN CASES RESERVED. 1854. Jervis C. J.— I concur in the judgment which has Reed's been delivered. As my Brother Parke differed from ^^^^' the rest of the Court, the case was ordered to be re- argued. I am of my original opinion. It is admitted that the cart was in the possession of the prisoner's master ; therefore the delivery of the coals into the cart vested the possession of them in the prisoner's master. Parke B I certainly had differed from the view of this case which has been taken by Lord Campbell, at a time when it was uncertain what the case of Spears actually was, and I felt myself entitled to treat this case as res nova. The book in which the opinions of the Judges are written, and which is always in the custody of the Lord Chief Justice, was mislaid, and the case of Spears was differently reported in the two editions of Leach, and also in East's Crown Law, and the case could not for some time be found. It has been found; I have satisfied myself; and I entertain no doubt upon it. I should have delivered my rea- sons at very great length, but it is unnecessary now to do so. The case has been discovered, and I find the precise point decided. Were it res nova, I should pronounce an opinion that the prisoner's offence is not larceny. Conviction affirmed. CROWN CASES RESERVED, 267 REGINA w. GREENHALGH. 1854. At the General Quarter Sessions for the borough of G.. secretary Bolton, holden on the 19th of December 1853, David sodety'^was GreeJialqh and Edward Clapham were tried before me indicted for ."^ . ^ ^ falsely pre- on an indictment charging that they, by false pre- tending that tences, did unlawfully obtain from one Benjamin occurred.and Beswick an order upon William Ashion Entwistle for ^o obtaining ' iii-iinii vsom the pre- the payment of 26/. 10s., and also did unlawfully sident an obtain from one Ellen Entwistle the sum of 2Z. 10s., trea"u?er\n^ the moneys of the said William Ashton Entwistle with ^^^ following , form: — intent to detraud. " Bolton There were two other counts for obtaining by false riaf Society, pretences from Ellen Entwistle the sum of 21. 10s., No. 23, Boi- the moneys of William Ashton Entwistle, with intent 1853, Mr. a! to defraud. ^^^^ It appeared on the trial that there is a burial Please to pay society in Bolton called the Bolton Union Burial 21 ws.. Society, the rules of which have neither been certified f„''f "*argt' nor enrolled. That the prisoner Greenhalgh was the tiie same to secretary, and the prisoner Clapham collector of such society, society, both being members of the same and in- Robert Lord, •> ' " Benjamin terested in its funds. That Benjamin Beswick was Beswick, , President." the president and William Ashton Entwistle the trea- Held, that surer of the society. That a weekly subscription of yaJuXese- one halfpenny for twenty weeks would entitle the curity under r.-., , , , „the7&8 representatives 01 a deceased member to the sum 01 Geo. 4,1.. 29, 21. 10s. That in the case of the death of any mem- ^i^^j^'g^y" her of the society it was the duty of the two prisoners the 5th see- as secretary and collector to view the body together, game statute. to report the death to the president, and to apply to him for an order upon the treasurer for the amount to which the representatives of such deceased member Case. 268 CROWN CASES RESERVED. 1854. were entitled, and to receive the same upon such ""7; order for the benefit of such representatives. That halgh's the treasurer would pay such orders out 01 the moneys of the society in his hands. That on the 1st of Sep- tember the two prisoners came together to Benjamin Beswich, the president of the said society. He was at his work in a cellar below, and Greenhalgh called out ''Ben, there's another death; thou must come up and give an order." He came up and found the two prisoners in the house, and said "Who is dead?" Greenhalgh ve^tMeA," Robert Lord's child." Beswick asked the name of the child. Greenhalgh said " Robert Lord." He asked them whether they had seen the corpse, and they both said the child was dead. He then asked where the parties lived. Clap- ham said in Green Street. That Beswick, believing their statements (which, in .fact, were wholly and entirely false, no member of the name of Lord being dead at that time), gave and signed the order he was so asked for, and which was as follows (that is to say) : " Bolton United Burial Society, No. 23. "Bolton, September 1st, 1853.— Mr. W. A. Ent- wistle, treasurer. — Please to pay the bearer 21. 10s., Greenhalgh, and charge the same to the above society. Robert Lord. " Benjamin Beswick, President." That Greenhalgh took the said order, and the prisoners went away together, and afterwards, on the same day, went together to Entwistle's, the trea- surer's, and saw Ellen Entwistle his daughter, and Greenhalgh asked if her father was in, and she said no. He then said there is a death, and we want 21. 10s,, and gave her the said order so obtained from the president. She told them they must wait until her father came in. They said they could not wait, and Clapham said that David (that is Greenhalgh) Case. CROWN CASES RESERVED. 269 was going off by the train. She at last gave them 1854. 21. 10s. on account of her father as such treasurer, ^ Gbeen- and she did so from what they said and they giving halgh's her the said order. She gave the money to Green- halgh, and she saw Greenhalgk afterwards give twenty shillings of that money to Clapham. The learned Counsel for the prisoner objected that these facts did not bring the case within the statute. I declined to stop it, and left the case to the Jury, who found both the prisoners guilty. I sentenced them to be severally imprisoned for eighteen months, with hard labour. The question for the opinion of the Court is, whether the prisoners, on the above stated facts, were properly convicted or not. R. B. Armstrong, Recorder of Bolton. This case was argued on the 21st day of January 1854, before Jervis C. J., Wightman J., Cresswell J., Platt B., and Williams J. No Counsel appeared for the prisoner. Cross, for the Crown. This conviction is right. One objection was, that the society was not certified and enrolled. Jervis C. J. — There is nothing in that. Wightman J. — The objection to the first count ap- pears to have been, that the order was not a valuable security within the statute. Cross. Yes ; and there was evidence to support that count. Jervis C. J. — We will not trouble you as to the other counts. The conviction is clearly right on the first count. The only question is, whether the order was within the 53d section of the 7 & 8 Geo. 4, c. 29. That section enacts "That if any person shall by 270 CROWN CASES RESERVED. 1854. Green- halgh's any false pretence obtain from any other person any chattel, money, or valuable security, with intent to cheat or defraud any person of the same, every such offender shall be guilty, &c." Now, the 5th section of the same statute gives the rule of interpretation, which is, that " each of the several documents herein- before enumerated shall throughout this act be deemed for every purpose to be included under and denoted by the words valuable security." One of those documents is " Order or other security what- soever, for money or for the payment of money." The case therefore is very clear. The other learned Judges concurred. Conviction affirmed. 1854. REGINA V. BEAUMONT. The prosecu- tor had con- tracted with the Great Northern Railway Company for finding and providing them with At the general session of oyer and terminer and gaol delivery, holden for the jurisdiction of the Cen- tral Criminal Court, on the 28th day of November 1853, Edward Beaumont was tried and convicted before me upon an indictment for embezzlement, whereby it was charged in the usual manner, that he, necessary horses and carmen for the purpose of conveying and delivering to the customers of the company the coals of the company in their own waggons ; and that he or his carmen should, day by day, duly account for and deliver to the company's coal manager all moneys received in payment for coals so delivered. The delivery notes, as well as receipted invoices, of the coals were handed to the carmen of the prosecutor, and the former were taken to his office, but the invoices receipted by the company were left with the customers on payment of the amount. The prisoner was the servant of the prosecutor, employed as his carman in the delivery of coals, pursuant to the contract, and it was his duty to pay over direct to the clerks of the company such moneys as he might receive for coals. The prisoner delivered coals to one of the company's customers, and brought the delivery order to the office to be entered ; he received for the coals the sum of hi. 10s., leaving the receipted invoice with the customer, which sum he converted to his own use. He was indicted and convicted of embezzling the moneys of the prosecutor, who had contracted with the company. Held, that there was such privity as to make the prisoner the agent of the company in receiving the money, and that such money was not received for or on the account of the prosecutor, but for or on the account of the railway company. CROWN CASES RESERVED. 271 being servant to Edward Wiggins, by virtue of his 1854. employment as such servant, received the sum of beauI hi. 10s, on account of his said master, and feloniously mont's embezzled and stole that sum of money, and alleging that money to be the money of the prosecutor. Edward Wiggins, the prosecutor, had become a contractor with the Great Northern Railway Com- pany, for finding and providing them with necessary horses and carmen, for the purpose of drawing, con- veying, and delivering to the customers of the com- pany the coals of the company in their own waggons, and had moreover contracted with the said company that he or his carmen should, day by day, duly account for and deliver to the said company's coal manager all moneys received from such customers in payment for coals so delivered. The delivery notes, as well as receipted invoices, of the coals were handed to the carmen of Wiggins, and the former were taken to his office to be entered in his books, but the invoices which were already receipted by the company were to be left with the customer on payment of the amount. The prisoner was the servant of Edward Wiggins, and was employed by him as his carman in the deli- very of coals pursuant to the said contract, and it was his duty to pay over direct to the clerks of the com- pany any money he might receive for any such coals. It did not appear that such moneys so received by him and paid over to the company ever formed items of account between Edward Wiggins and the company. On the day mentioned in the indictment the prisoner had, as the servant of Mr. Wiggins, delivered coals of the company to one of their customers. He also brought the delivery order to Wiggins' office, which was entered in his books and received in payment the price of the coals, viz., the sum of hi. 10s. mentioned Case. 272 CROWN CASES RESERVED. 1854. in the indictment, and left the receipted invoice with Beav- *^^ customer. This sum he never handed over or mont's accounted to the company or their clerks, but con- verted the same to his own use, thereby rendering his master liable to pay that amount to the company under the said contract. This was the embezzlement upon which the prosecutor relied. It was contended for the prisoner. First. That the money' had not been received on account of the prosecutor Mr. Wiggins, and that under such circumstances the crime of embezzlement within the meaning of the indictment and the 7 & 8 Geo. 4, c. 29, had not been completed. Secondly. That the ownership of the money as stated in the indictment was not proved as laid. As to the first point I directed the jury that as the prisoner was the servant of Mr. Wiggins and re- ceived the money in the course of his employment as such servant, they might under the above circum- stances find that he received it on account of his master in the sense used in and required to be proved by the indictment. On the second point I directed the jury that even if it were necessary to prove the money obtained to be the property of the prosecutor, (of which I had some doubt), yet if they found that it was received by the prisoner on the prosecutor's account it would be the property of the master in the sense of the alle- gation in the indictment. Having doubts as to the propriety of my ruling on both of the above points I consented to reserve them for the consideration of the Justices of either Bench and the Barons of the Exchequer, in the form of a case under 11 & 12 Vict. c. 78, and the foregoing is the case upon which their decision is requested. CROWN CASES RESERVED. 273 Judgment has been respited upon the prisoner, and 1854. he remains in gaol in default of sureties to receive beau- judgment when called upon. mont's Counsel are to be at liberty to refer to the terms of the contract itself which for that purpose is to be considered part of the case. J. Stuart Worthy, Recorder of the city of London. This case was argued on the 21st of January 1854, before Jervis C. J., Wightman J., Cresswell J., Platt B. and Williams J., when the learned Judges differing in opinion desired that the case might be re-argued ; and accordingly, on the 4th of February 1854, the case again came on for argument before the following Judges : Lord Campbell C. J., Parke B., Coleridge J., Maule J., Wightman J., Cress- well J., Platt B., Williams J., Martin B. and Crompton J. Dearsly, for the prisoner. This conviction is wrong, as the money was received for or on account of the railway company, and not on account of the prosecutor. To constitute embezzlement, the money must be received by the servant for or on account of the master. It is admitted that the prisoner was generally the servant of the prosecutor ; but it is contended pro hac vice he was the servant of the company. Anyhow, the money was received for or on the account of the company. The question turns upon the special terms of the contract itself, which binds the prosecutor " to provide horses, har- ness, weights, and carmen for the purpose of deliver- ing all such coal as the company shall require," and to provide " a suflScient number of steady and honest carmen and other persons for the delivery of all coals into the cellars or any other part of the premises of the VOL. It X 274 CROWN CASES RESERVED. 1854. persons for whom the coals are intended, and also for Beau- Collecting and receiving, and duly accounting for, the MONT'S moneys received for the same, and for all other pur- poses connected with the due delivery of the coals, or receiving or accounting for the moneys for the same. And that such parties shall, during the time they shall be in the employment of the said Edward Wiggins, his executors or administrators, obey, per- form, and execute in all things connected with the carrying and delivery of coals, and receipt and pay- ment of moneys received by them, the orders, com- mands, and directions of the company's coal manager or such other person or persons as may be appointed by them for that purpose. And that he the said Edward Wiggins or the said carmen or other parties shall day by day and every day well and truly pa}', account for and deliver to the said company's coal manager all cheques, monej's, cash bills, or notes which they may at any time receive from any person or persons whomsoever for payment of all or any coals delivered by them (a)." It is submitted that the (a) The contract, made 31st moneys received for the same and December 1851, between Edward for all other purposes connected Wiggins and the Great Northern with the due delivery of the coals Railway Company, binds the said or receiving or accounting for the Edward Wiggins to " provide moneys for the same, and that horses, harness, weighing ma- such carmen and other parties chines, weights and carmen for the shall, during the time they shall purpose of delivering all such coals be in the employment of the said as the said company shall and may Edward Wiggins, his executors or require the said Edward Wiggins administrators, obey, perform and to carry and deliver" &c. It also execute, in all things connected binds the said Edward Wiggins with the carrying and delivery of to " provide a sufficient number coal and receipt and payment of of steady and honest carmen and moneys received by them, the other persons for the delivery of all orders, commands and directions coals into the cellars or any other of the company's coal manager, or part of the premises of the persons such other person or persons as for whom the coals are intended, may be appointed by them for that and also for collecting andreceiv- purpose." ing and duly accounting for the The contract, after prohibiting CROWN CASES RESERVED. 275 terms of this contract merely amount to a guarantee 1854, on the part of the prosecutor to the railway company bbau^^ for the trustworthiness and fidelity of the carmen who mont's might be employed, and though the carmen are no parties to the contract obedience to the orders of the prosecutor in carrying out the terms of the contract would effect a privity between them and the company. And the transaction itself shews that the authority to receive the money was given to the prisoner by the railway company, and that the prosecutor would have no authority to interfere with the carman after he had received such authority. Maule J. A customer who owes money to the company would only pay to one having authority to receive. The receipt and invoice is given by the company, and is evidence of the authority. Dearsly. Precisely so. It would be a contradiction in terms to hold when the railway company saj's " Receive this money for us," and the prisoner acts upon that authority, that he receives the money for or on account of the prosecutor, and yet this is the contention of the prosecution. Lord Campbell C. J. It is difficult to see what such carmen from receiving any Wiggins, his executors, adminis- gratuity, &c., proceeds, " And that trators and assigns, shall and will, he the said Edward Wiggins, or during and within the first seven the said carmen or other parties, days of every calendar month shall and wiU, day by day and during the continuance of this every day, well and truly pay, ac- contract, send in and deliver a just count for and deliver to the said and true statement of the amount company's coal manager all checks, earned by him in the previous moneys, cash, bills or notes which calendar month for or on account they may at any time receive from of all coals delivered by him during any person or persons whomsoever the preceding calendar month to for payment of all or any coals the company's coal manager or delivered by them." other the person or persons ap' The contract subsequently says, pointed by the said company to " And also that he the sai&Edward receive (he same." X 2 276 CROWN CASES RESERVED. 1854. defence the carman would have to an action by the Beau- company for money had and received. *Ca'*sI.'* Deardy. While it would be difficult to see how such a defence could be set up by the prisoner, it would appear clear that in an action brought by the company against the prosecutor he might successfully set up a defence. The difficulty arises from the fact that the prisoner is the general servant of the prose- cutor, who allows him in this particular matter to act for tlie company. Lord Campbell C. J. What you say is that although the prisoner is the servant generally of the prosecutor ■pro hac vice, he is the servant of the company. Dear sly. Yes. Coleridge J. The money is received by the hand of the prisoner, and the question is whether his hand at the time of the receipt was not in law the hand of the prosecutor, so as to make the receiving in fact in contemplation of law a receiving by the prosecutor. Dearsly. That depends upon the terms of the con- tract and the facts as stated in the case. The effect of the contract is to make the prisoner the servant of the company in the act of receiving, and the receipted invoice is evidence of the authority under which the prisoner acted, which was an authority from the railway company to receive for and on account of them and of no one else. Maule J. The prisoner received under a special authority from the company. Williams J. Suppose the prosecutor discovered that the prisoner was dishonest, could he not have prevented him from holding the money and have re- quired that it should have been handed over to him. Dearsly. It is sujjmitted that he could not. After CROWN CASES RESERVED. 277 the prisoner received the authority from the railway 1854. company to receive the money for or on the account beau- of the company and acts upon that authority the *case^ prosecutor could not interfere. Supposing a person allows his servant to act for another, and he says " Go to that other person and receive his instructions," to which the servant assents ; and he is told, for instance, to take plate to a bankers, could it be said that the master of the servant could interfere and tell him to bring or take it to any other place ? Crompton J. — The one contract includes both the terms of carting and receiving the money. Wiggins would be liable to an action for negligent driving. Dearsly. Yes; and for this reason, according to the terms of the contract, the company has no controul over the horses or the driving. Hardinge Giffard, for the prosecution. This conviction is right. The receiving by the prisoner was in contemplation of law a receiving for his master the prosecutor, and what he did was by order of his master. The contract so far as the rela- tionship of servant and master makes no difference ; and whatever the prisoner does under the contract differs in nowise from what he would have done under the bare orders of his master supposing no contract to have existed. Though it may be said that the company allows the prisoner to receive, yet in con- templation of law that is an authority for Wiggins to receive by the hands of the prisoner. The prisoner is no party to the contract, and therefore tiiere is no privity. WrcHTMAN J. — The carmen are to obey the manager in all things relating to the receipt of money. Madle J. — And they are to pay it directly to the company. Case. 278 CROWN CASES RESERVED. 1854. Hardinge Giffard. Yes ; but that means by the Beac- direction of Wiggins. MONT'S Maule J. — The prisoner performs his duty to his master by receiving his money on account of the com- pany. Is not that so ? Well, when he has received it, on whose account has he received it ? Why, on account of the company. It would be against common sense when he receives it for or on account of the company, to say that he receives it for or on the ac- count of somebody else. Hardinge Giffard. Suppose a collector of rents hands over to his servant the landlord's receipt, and the servant collects the rent, he does so on account of his master the collector, and not on account of the landlord. Maule J. — But here the person in the correspond- ing situation to the collector's servant has to pay over directly to the company, which is the corresponding situation to the landlord. Hardinge Giffard. If the master had met the pri- soner in the street after the receipt of the money, would not he have been entitled to have demanded it ? Maule J. — Certainly not. The whole course of business tacitly contradicts that right. WiGHTMAN J Suppose the master said to a friend, " I will send my servant to get you a cheque cashed* I have full confidence in him, and I will pay if he does not ;" on whose account would the servant receive the proceeds ? Hardinge Giffard. That is hardly a similar case. Lord Campbell C. J. — If the servant lost the money by vis major it would be lost by the prisoner in the course of his duty to the company, and the master would not be responsible to the company for the loss. Hardinge Giffard. There is no privity of contract, and the company could not sue the prisoner for money CROWN CASES RESERVED. 279 had and received. Barrow v. Husband, 4 B. & Ad. 1854. 611. Beau- Lord Campbell C. J. — There is abundance of evi- ^q^^^^ dence. Everett v. Williams, 15 East. We must as- sume that when the prisoner received the invoice, and was told to bring back the money he promised to do so. WiGHTMAN J. — Supposing Wiggins to become bankrupt, whose money would be the money in the hands of the carman, received under this agreement, the money of the company or of his assignees ? Crompton J It would be a receipt by Wiggins in either case, and must be paid to the company. Dearsly replied. Lord Campbell C. J. — This case depends entirely upon whether the evidence shews that the money was received in the name, or on the account of his master, and this depends upon whether any privity exists be- tween the carman and the company. If there be such privity as to make the carman the agent of the com- pany in receiving the money, and he agreed to pay it to them, the money in his hands was not that of the master but of the company. The opinion of the ma- jority of us is, that such privity is established, and therefore, that the money was not received on account of the prosecutor, but on account of the company. That being so, this conviction cannot be supported. Conviction quashed. 280 CROWN CASES RESERVED. A... -'Z/ 1854. REGINA V. SQUIRE WALKER AND THOMAS MORROD. W. was in- The prisoners were indicted at the East Riding of hrcen/°for Yorkshire Sessions, held at Beverley on the 3rd of stealingeiba. January 1854, for stealing six pounds weight of brass of brass from •' _ ,, ., . , .i.. j. e a foundry. from Mr. Crosskill, with a count in the indictment tor The only . . Buggested receiving. evidence It ^gg proved at the trial that Walker had worked trial was that for Mr. Crosskill and borne a good character for five wh7war''' or six years. That on the 9th of November he left Mr. employed Cross^i^/'s employment. That on the 9th of iVpwem6er, nnses, haS"" Morrod, who was brother to Walker's, wife, oflfered for come into the ^ale in Beverhy six pounds weight of brass (being that place where charged in the indictment as being stolen from Mr. the brass was _, ,.,,, , , . >. i •. ^ i • -i *_ kept. Crosskill s) and a quantity of white metal similar to th^e waffot ^^0^^ *^"- '1'^^* *^^ ^^"^^^ (which was of a peculiar a scintilla of kind, and was in ingots cast in moulds belonging to ^tTthe ° Mr. Crosskill) was usually left in a shop the door of ■'"'■y- which opened on to the road leading into Mr. Cross- kill's works, to which workmen on the premises might have access, the door not being kept locked. That block tin and white metal were only kept in the brass foundry within this outer shop, with a door between them. That Thomas Morrod was employed for one week on Mr. Crosskill's premises in September last as a bricklayer's labourer, and that in such employment he would have to pass along the road into Mr. Cross- kilVs works, and might have access to the outer shop (where the metal called brass was kept), but had never been seen there ; that he never had been seen in the brass foundry, and could not have gone in there without some of the workmen seeing him. That Walker was Case. CROWN CASES RESERVED. 281 employed as an iron moulder at works on the other IS.'i^. side of Mr. CrosskiU's yard. That he frequently went walkeb'b into the brass foundry to borrow tools, and had at times borrowed white metal, saying- that he wanted it for purposes of casting. Walker was apprehended in November at Wakefield. Morrod, when he sold tiie brass on the 9th of J^ovember, stated to the person to whom he sold it that Walker^s wife had given it to him to sell, and that Walker had that day left her and gone into the West Riding ; which he also stated to the jury in his defence, telling them that he did not know but that it was honestly obtained. It was proved that he had given his name and address to the person to whom he sold the brass, and immediately he heard that it had been stolen from Mr. Crosskill had gone to see him about it. The Chairman told the jury they were not to take , what Norrod said as to the way he obtained the brass as evidence against Walker, drawing their atten- tion to the fact that it was easy for a man who had himself stolen it to invent such a story, and that it was therefore not fair to take such into account as evidence against the other prisoner. The jury believing that Walker had stolen the metal, and that Morrod had received it not knowing it to have been stolen, found Walker guilty of stealing and acquitted Morrod. Mr. Dearsly, on behalf of Walker, objected that there was no evidence whatever to go to a jury of Walker having stolen the brass, and requested the Chairman to reserve a case for the consideration of the Court of Criminal Appeal, and the case were therefore reserved upon this point. The jury was probably partly influenced in their finding by the facts which it was omitted to prove distinctly by the prosecution, but which were nevertheless apparent in 282 1854. Walker's Case. CROWN CASES RESERVED. the case, that Walkei- and his wife and her brother Morrod lived in one house together, and that Walker had left Beverley on the 9th oi November, and also by the general demeanour of the prisoners. It is also impossible that they should not give some weight to what Morrod had said at different times as against Walker, believing as they did that he had sold the metal innocently, and was speaking the truth for himself. C. W. Strickland. Chairman. This case was argued on the 28th January 1854, before Jervis C. J., Matjle J., Wightman J., Wil- liams J., and Platt B. Dearsly for the prisoner. This conviction is wrong. There was not a particle of evidence to be left to the jury. Maule J. — Not a scintilla. Jervis C. J. — This conviction must be quashed. Conviction quashed.. 1853. B. was in- dicted for larceny. It was proved that he was REGINA V. BURTON. John Burton was indicted at the January Sessions 1854, for the county of Middlesex, for stealing a quantity of pepper. seen coming out of the lower room of a warehouse in the London Docks, in the floor above which a large quantity of pepper was deposited, and where he had no business to be. He was stopped by a constable, who suspected him, from the bulky state of his pockets, who said, " I think there is something wrong about you," upon which B. said, " I hope you will not be hard with me," and then threw a quantity of pepper out of his pocket on the ground. The witness stated he could not say that any pepper had been stolen, nor that any pepper had been missed, but that found upon B. was of a like description with the pepper in the warehouse. Held, that the prisoner, upon these facts, was properly convicted of larceny. CROWN CASES RESERVED. 283 It was proved at the trial by the person having 1854. charge of the warehouse, that the prisoner was seen buhton's coming out of the lower room of a warehouse in the Case. London Docks, in the floor above which a large quantity of pepper was deposited, some in bags and some loose upon the floor. And that the witness having suspicion of the prisoner from the bulky state of his pocket, stopped him and said, " I think there is some- thing wrong about you," upon which the prisoner turned and said, " I hope you will not be hard with me," and threw a quantity of pepper out of his pocket on the ground. The witness further proved that no pepper was missed, and that he could not say from the large quantity of pepper that was in the warehouse that any had been stolen ; but the pepper found on the prisoner was of the like description with the pepper in the warehouse. The prisoner had no business in the warehouse. It was contended by the prisoner's Counsel on the authority of i2. v. Dredge (1 Cox, Crown Cases, 235), that upon this state of facts the Judge was bound to direct an acquittal. I overruled the objection, being of opinion that notwithstanding the statement of the witness that he could not swear that any pepper was stolen there was evidence to go to the Jury. The Jury returned a verdict of guilty, and the question reserved for the consideration of the Court is whether I ought to have directed a verdict of acquittal or to have left the case fo** the consideration of the Jury. If the Court should be of opinion that the case ought not to have been left to the Jury a verdict of acquittal is to be entered. Judgment on the conviction was postponed, and the prisoner was committed to the House of Correction at Coldbath Fields. John Adams. 284 CROWN CASES RESERVED. 1854. This case was argued on the 28th o^ January 1854, B„j,To,^,g" before Jervis C. J., Maule J., Wightman pJ., Case. Williams J., and Platt B. Ribton, for the prisoner, cited the case of R. v. Dredge (1 Cox. C. C. 235) as conclusive. Maule J. — The distinction is plain. That was the case of a little boy who asserted that the doll he was charged with having stolen was his own. Here the prisoner has a quantity of pepper about him, and says not that it was his own property but " Don't be hard upon me." The child conducted himself like an honest person. Ribton. It is submitted that the cor-pus delicti must be proved in every case, and you cannot make any difference in the application of the rule. Maule J. — The offence must be proved. If a man go into the London Docks sober without means of getting drunk, and comes out of one of the cellars very drunk wherein are a million gallons of wine, I think that would be reasonable evidence that he had stolen some of the wine in that cellar though you could not prove that any wine was stolen or any wine was missed. Ribton. The corpus delicti must be proved. Madle J. — Where is the rule that the corpus delicti must be expressly proved ? Ribton. In Lord Hale it is so laid down. Maule J — Only as a caution in cases of' murder. He does not say it is to be observed in every case. Ribton. But the principle would be the same in every case, and was adopted by Lord Stowell in Evans v. Evans, 1 Hagg. Con. Rep. 79. There is also the case of Hickson v. Evans, 6 T. R. 58. He would also refer to Starkie on Evidence, 862. Jervis C. J. — We are all of opinion that there is nothing in the objection. My Brother Maule has CROWN CASES RESERVED. 285 already pointed out the clear distinction between this 1854. case and Rex v. Dredge. ^ burton's Conviction affirmed. Case. REGINA V. SHARMAN. 1854. John Sharman was tried at the last session of the S- was in- Central Criminal Court, before my Brother Williams uttering a and myself, on an indictment which, after stating ^'"'f!'^ "J"*^"" J ' ' o ment, piir- that, at the time of committing the offences therein- porting to be after-mentioned, the, rector of the parish of Tim- fromadergy- mingley, in the county of York, was desirous of ^ j"!!**^^' ^^ engaging a fit person to fill the place of school- charge of a master of the parochial school of that parish, and that anXthatbe' the said John Sharman had made application \^^ '^°°" _ , diicted it for the said place, and the rector had required from under that John Sharman, for the purpose of satisfying him the supenntend- rector, testimonials as to the qualifications and cha- encewith racter or Sharman, and as to his fitness for the said success. place of schoolmaster, charged that Sharman, intend- ^^^ conVic^' ing by false, fraudulent, and deceitful representations tion was good 1 • ^p • 1 1 .11 ^^ common to procure nimseli to be appointed to the said place law, and that of schoolmaster, falsely, knowingly, and deceitfully, fence^at°^" did make, forge, and counterfeit, a certain writing to common law 1 i-i 1 • •!• 1 /. IP • to utter a the likeness and similitude of, and as tor a genuine forged in- writing of, and under the hand of Robert Henry ^.g^.y^oj"''' Johnson, the rector, of the parish of Lutterworth, in which is an the count}' of Leicester, with intent in so doing to common law, injure, prejudice, and deceive, which writing was as g^g^tl^n^' ^^^ follows : — the fraud is ,, ^ immaterial. " Lrent. " Mr. and Mrs. Sharman have been known to me for some years, and for some time they had the charge 286 CROWN CASES RESERVED. 1854. of a large schdol under my control and superintend- Sharman's ence, which they conducted with great ability and ^^se. success; indeed committee, parents, and children, were sorry when they resigned, and some of the latter presented them with some small tokens of their esteem. " I have, therefore, very great pleasure in bearing my testimony to their excellent moral character, and their suitability for the office of instructor to the rising generation, and can with confidence recom- mend them for the situation they seek, knowing them to be peculiarly adapted for the right management of children," " R. H. Johnson:' 12th November 1853. The 2nd and 3rd counts charged the forgery more generally. The 4th, 5th, and 6th counts (which otherwise corresponded with the 1st, 2ad and 3rd, respect- ively), charged Sharman with having uttered the forged writing, knowing it to be forged. The pro- secutor proved the following facts : — On the 7th of December last, the situation of schoolmaster of the parish school of Timmingley, in Yorkshire, was vacant, and Sharman had applied for it, and had sent in to the rector of that parish papers purporting to be copies of certificates of character, and amongst them one purporting to be a copy of a testimonial from the Rev. Robert Henry Johnson, the rector of Lutterworth. On that day, which had been appointed for the production of the original testimo- nials, Sharman attended for that purpose in Par- liament-street, Westminster, at the office of Mr. Baxter, a parliamentary agent, who had been authorized by the rector of Timmingley, to inspect and examine them. CROWN CASES RESERVED, 287 On that occasion being required by Mr. Baxter to 1854. produce the original of the writing, purporting to be Sharman's a copy of a testimonial from the rector of Lutterworth, C^^^- he produced the writing set forth in the indictment ; and, in answer to Mr. Baxter's questions, falsely stated that it was the testimonial of the rector of Lut- tprworth, and bore the rector's signature. In fact the document had not been written or signed by the rector, but was altogether a forgery.. The jury acquitted him of the forgery, but found him guilty of uttering the forged document, knowing it to be forged, with intent to obtain the emoluments of the place of schoolmaster, and to deceive. Judgment has been postponed in order to obtain the opinion of the Court of Appeal whether the act of which the jury have found Sharman guilty is an offence by the common law. // /;9.7 ji T.jJ^att, 0^'^ 19th January 1854. This case was argued on January 28th 1854, before JeRVIS C. J., MaULE J., WiGHTMAN J., PlATT B., and Wir-LiAMs J. No Counsel appearing for the prisoner. Clarhson was called upon on the part of the Crown. It is submitted this uttering was an oflfence at com- mon law. The evidence discloses the deception and the attempts to acquire the emoluments of the situa- tion. Maule J. — Is there authority for saying that the falsely making the document in question is an offence at common law ? Clarkson. There is the case of Rex v. Toshack, 1 Den. C. C. 492. I could also refer to 2 Russell on Crimes, 216. Williams J. — In the case of Reg. v. Boult, (2 C. & 288 CROWN CASES RESERVED. 1854. K. 604), it was held an offence at common law to forge Sh4kman's ^ railway pass, but not an offence to utter a forged Case. railway pass unless the fraud succeeded. Here the attempt at fraud was ineffectual. The case of Reg. V. Boult was a decision of myBrothers Cresswell and Patteson, and notwithstanding the high authority, I confess I entertain great doubts upon that case. Clarkson. There is a precedent in Tremaynes P. C. 129, for forging and uttering at common law ; and that seems to indicate the principle of the common law. Williams J. — My Brother Erie, in R. v. Smythies, (1 Den. C. C. 498), reserved a question, notwith- standing that R. V. Boult was cited, Clarkson. I would, as a general proposition, say the wilful attempt of a person to effect his objects by a deception put into writing must, at common law, be a misdemeanor. Jervis C. J. — We are of opinion that is a common law offence to utter a forged instrument, the forgery of which is an offence at common law. We think that the view of the law taken in R. v. Boult was not a correct one. Maule J. — I am of the same opinion. I may state I am not prepared to adopt in its terms the propo- sition last stated by Mr. Clarkson. The other Judges concurred. Conviction afiirmed. CROWN CASES RESERVED. 289 REGINA w. GILL. 1854. Samuel Gill was convicted at the Glerkenwell G. was the Sessions 1853, for stealing one crown piece, the pro- ^ervanHnd perty of his master. received over ' It was proved at the trial that the master, who was fortheprose- a licensed victualler, suspecting the prisoner, marked ofmarked'^''^ the crown piece in questiou and two half-crowns, and money.which gave them to one J. W. for the purpose of purchasing cutor, who spirits of the prisoner, who was the prosecutor's bar- prig^*„*e*rVad* man. J. W. accordingly, early the next morning, siven to purchased at the bar some brandy, and paid the pri- and buy soner with the marked money, and it was his duty to ^PF'^ofthe •' J prisoner at have placed the same in the till When his master theprosecu- came down he looked into the till, and found there house. The" the two half-crowns only. Upon the prisoner being P"soner charged with the offence, he admitted the receipt of with the the crown piece, but said he had given it away as part Held, that of the change for half a sovereign. The crown piece „£ e^^^u ^"/"^ was found in a bag in his box, separate from his other ment. silver, and wrapped in paper. The jury acquitted the prisoner of larceny, and found him guilty of embezzlement. The judgment has been respited, and the prisoner committed to the House of Correction at Coldbath Fields to abide the decision of this case. The question reserved for the consideration of the Court is, whether upon the facts as provedthe offence is larceny or embezzlement. John Adams, Assistant Judge. This case was argued on the 28th oi January 1854, VOL. I. Y 290 CROWN CASES RESERVED. 1854. before Jervis C. J., Maule J., Wightman J., Wil- Gill's liams J., and Platt B. Case. jfo Counsel appeared for the prisoner. Clarkson for the Crown, The prisoner was guilty of embezzlement, as the money was altogether out of the hands of the master. Jervis C. J. — It is the case of Rex v. Peck (2 Russ. /'oO 34^) which creates a diflSculty. There the money was received from the master to pay a third person, and that was not within the act. Where money was given to one servant to give another, as in Murray's case, (1 Moo. C. C. 276), that was held not to be within the act. Then comes Rex v. Hedges, 2 Leach, 1033. The master gave a stranger money to try the servant's fidelity, and the servant converted the money to his own use. That was held to be embezzlement within the act. Clarkson. Here, as in Hedges' case, the master parted with the possession. Jervis C. J. — We must be bound by authorities which are express, and in this case we are bound by Rex V. Hedges. Maule J. — I think so too. There may be a dis- tinction between the cases in which the master parts with the possession retaining it constructively, and those in which he does not. The other learned Judges concurred. Conviction affirmed. REGINA Inhabitants of HORNSEA. PLAN To cuxompccny Case . TofaceFa^e 291. CROWN CASES RESERVED. 291 THE QUEEN, on the prosecution of JOHN GAL- 1851- LOWAY, against the Inhabitants of the Parish of HORNSEA. This was an indictment for the non-repair of a An indict- highway, tried before me at the Yorkshire Spring that certain Assizes 1853, and I herein state the facts of the case ^l'gh°aywas proved before me, in order that the questions of law out of repair, arising thereon may be fully considered and deter- road had, at mined by the Justices of either Bench and the Barons ^^g*™he in- of the Exchequer, in pursuance of the statute. dictment was The road, in respect of which the indictment was beeifdestroy- preferred, was described in the indictment to be a edbythe ' . , . encroacn- certain common and public Queen's highway, called mentsofthe the Sea Road, leading eastward from the east end of surface of the a street in Hornsea, in the East Riding of the county existing road of York, called Eastgate, to the German Ocean ; and repair up to the indictment alleged that a certain part of the same 7ameVad^ common and public Queen's highway, situate, lying been sodes- and being in the parish of Hornsea, in the said East which part Riding of the county of York, containing in length te^mTnateT' divers, to wit, 210 feet, or thereabouts, and in breadth by a perpen- " divers, to wit, 40 feet, or thereabouts, on the 1st day of caused by July A.D. 1852, and continually afterwards, until the '^^"f^? present day, was, and yet is, very ruinous, deep, broken ments. , . , , « . f 1 • • 1 Held, that and in great decay, tor want or due repairing and there was no amendment. rbliBation on the parish to In the year 1801, an act passed (41 Geo. 3), en- provide an titled " An Act for dividing, allotting, and enclosing rbge-road down to the beach, the encroachments of the sea having destroyed the road, so that the subject of rejjair was not in existence. This Court will not entertain a question of costs which is not within their jurisdiction, although it is expressly agreed by a case reserved that the Court should have the same power, with respect to such costs, as the Judge could legally have exercised at the trial. Y 2 292 CROWN CASES RESERVED. 1854. the open arable fields, meadows, pastures, common '~Z and waste lands within the parish of Hornsea, in the V. East Riding of the county of York, and for making a of Hornsea. Compensation in lieu of the tithes thereof, and of an- cient enclosed lands in the same township." And by this act it was enacted that the commissioners should, before they proceeded to set out the allotments there- inafter mentioned, set out and appoint in, over, and upon the said lands and grounds thereby directed to be divided and enclosed, such public and private roads, and such places for getting stone, lime, gravel, and other materials, for the repairs of the several public highways within the township of Hornsea afore- said, and for the erecting or repairing of certain houses &c. within the same township, and should set out and appoint such places for common watering places for cattle, and likewise such hedges, fences, banks, ditches, drains, watercourses, sewers, bridges, gates, stiles, and other requisites, in, over, through or upon all or any of the same lands and grounds thereby directed to be divided and enclosed as they should judge proper, convenient, or necessary, and should and might stop up, alter, turn, or discontinue any old roads, sewers, watercourses, becks, drains, sloughs, or banks therein, and by and with the consent of the owners and pro- prietors thereof, but not otherwise, in the ancient en- closed lands of the same township, or any of them, as they should think necessary or convenient ; and the said public roads should be and remain forty feet in breadth at the least, between the ditches or fences ; and after the said public roads should have been set out as aforesaid the said commissioners should, and they were thereby empowered and required, by wri- ting, under their hands, to appoint one or more surveyor or surveyors of the public roads, and such surveyor or surveyors should cause the same public CROWN CASES RESERVED. 293 roads to be properly formed and completed, and put 1854. into good and sufficient repair, and should be allowed r^oij,j^_ such salary or reward for his or their trouble therein »• .1 • , . . 1111 ... 1 Inhabitants as the said commissioners should, by writing under ofHoRNSBA. their hands and seals direct and appoint, which salary or reward, and also the expenses (over and above the statute duty) of first forming the said public roads, and of putting the same into good and sufficient repair, should be raised in like manner as the charges and expenses of obtaining and passing that act, and the carrying the same into execution, were thereby au- thorized and directed to be raised, and that none of the inhabitants of the said township of Hornsea, other than the persons respectively to whom any allot- ment or allotments should be made by virtue of that act, should be charged or chargeable (over and above the statute duty) towards the forming and putting the said new public roads into repair until the same should respectively be made fit for the passage of tra- vellers and carriages, and should have been certified so to be by the said surveyor or surveyors by writing under his or their hand or hands, to be delivered to the clerk of the peace at some quarter sessions of the peace to be holden for the East Riding of the county of York, and until such certificate should have been allowed and confirmed by the justices at such sessions^ which said certificate should be so delivered to the clerk of the peace at the quarter sessions held next afte^r the same public roads should be formed and put into good and sufficient repair respectively as aforesaid, and within the space of two years next after the exe- cution of the said award of the commissioners, unless sufficient reason be given to the satisfaction of the said justices that a farther time was necessary for that purpose, in which case the said justices might and they were thereby empowered to allow such further time for V. Inhabitants of Hornsea. 294 CROWN CASES RESERVED. 1F54. the delivering in the said certificate as they should "rbgina " ^^■°'^ proper not exceeding one year, and in case the said surveyor or surveyors should neglect or refuse to deliver in such certificate within the time before limited, such surveyor or surveyors should forfeit and pay any sum not exceeding tveenty pounds nor less than ten pounds, to be recovered in like manner as any other penalty was by that act authorized to be recovered, and the same should be applied towards defraying the expenses of carrying that act into execution in such manner as the said commissioners should direct, and that after such certificate should have been delivered to the said clerk of the peace by the said surveyor or surveyors as aforesaid, and should have been allowed and confirmed at such sessions, the said public roads should be from time to time amended and kept in repair in the same manner as other public roads were by law to be amended and kept in repair, and that after the execution of the award of the said commis- sioners, it should not be lawful for any person or persons to use any roads, either public or private, in, over, through, or upon the said lands and grounds thereby directed to be divided and enclosed, or any of them, or any part thereof, either on foot or with horses, cattle, or carriages, other than such as should be set out and appointed by the said commissioners by virtue of that act, and that all former roads which should not be set out and appointed as the roads and ways through or upon the said lands and grounds thereby directed to be divided and enclosed, should be deemed part of the same lands and grounds to be divided and allotted by virtue of that act. It was also provided and enacted, that, so soon as conveniently might be after the said commissioners should have set out and appointed such public carriage roads as aforesaid, they should give notice thereof iu CROWN CASES RESERVED 295 a certain newspaper ; and that it should be lawful for 1854. any person dissatisfied with the setting out, appoint- ~r^^7na~ ment, or disposition of any of such public carriage "■ roads as aforesaid (on giving such notice to any one of Hornsea. commissioner, and entering into such recognizances with sureties conditioned to try such appeal as therein respectively mentioned), to appeal against all or any of such public carriage roads to some general quarter sessions of the peace, to be held in and for the said East Riding within four calender months next after the setting out, appointment, and disposition of the said roads and notice thereof given as aforesaid, and be heard by himself, counsel, agents, attorneys, and witnesses ; and that the commissioners, &c., should attend at such sessions, and the justices before whom such appeal should be made, should, on hearing the evidence, finally determine whether the said public carriage roads so appealed against should be made, or whether any other public carriage roads should be set out, and should make and give such orders and di- rections touching the matter before them, and award such costs as to them should seem necessary and expe- dient in that behalf, and such determination should be final and conclusive to all parties concerned, and should not be removed or removeable by certiorari, &c. ; but in case no such notice should be given to one of the commissioners as aforesaid, or such recog- nizance should not be entered into, or such appeal should not be proceeded in as aforesaid, then such setting out, appointment, and disposition of the said public carriage roads by the said commissioners as aforesaid, should be final and conclusive to all and every person and persons whomsoever. It was also further enacted that the awards should (amongst other things) describe all manner of public and private roads, stone pits and common watering 296 CROWN CASES RESERVED. 1 854. places for cattle, drairrs, watercourses, sewers, bridges, Regina fences and other works and improvements which J ^ »• should be set out, directed, or appointed b)' virtue of of Hornsea, that act, and that a plan should be annexed to the award specifying and describing (amongst other things) all public and private roads, stone pits, com- mon watering places for cattle, sewers, drains and watercourses which should be set out or appointed by virtue of that act, and all other matters and things proper or necessary to be described therein. When this act passed the road in question existed as a public highway, and was called the Sea Road. The commissioners made their award in 1809, and awarded (amongst other things) as follows : " And we do direct, set out, appoint and award that there shall be one other public highway or road of the breadth of forty feet as the same is now staked, ditched and bounded out, called the Sea Road, lead- ing eastward from the east end of a street in Hornsea called East Gate, over ancient enclosed lands be- longing to Christopher Jackson, and over Horr Carr and Chrystals to the German Ocean." In another part of the award they awarded thus as to a place abutting on part of the Sea Road, and called the Landing Place." And we do set out, allot and award one acre of land (be the same more or less), situate, lying and being in the east field of Hornsea aforesaid, for the purpose of a landing place adjoining the Sea Road on the north ancient enclosed lands of Charhtta Bethell on the east, and on lands herein awarded to Peter Acklom on the south and west." The above mentioned act of Parliament and award may be referred to by either party on the argument of this case, and every thing directed by the act to be done in reference to the road and landing place is to be deemed to have been done, and that the road was CROWN CASES RESERVED. 297 a lawfully existing road under and by virtue of the 1854. said act and award. Reoina The plan which accompanies this case is (with the , , "• ,,..„, ,1- II o. Inhabitants addition ot the red hue to mark the course or the ofHoRNSBA. new road hereinafter mentioned and the blue line shewing the present line of cliff, March 6, 1853,) a copy of part of the plan annexed to the award, and the road in question is called thereon the Sea Road, and is partly coloured black, and is the road set out in the award as above inserted. The land numbered (132), and coloured green on the plan, is what is described in the award as to the landing place the ancient enclosed lands of Charlotta Bethell (No. 132 on the plan). It was proved that at the time when the road and landing place were set out, the land of Charlolta Bethell was or had been swarth land, and was in the occupation of one Simpson as her tenant, and was ancient enclosed lands, but had for a long period been encroached upon by the sea, and at the time of making the award was partially covered with sand and gravel, and was entirely sand between the entrance to the road in question and the sea. It was also proved, that both before and after the award all persons were accustomed to go down the Sea Road. No evidence was given that any repairs had ever been made eastward beyond the western boundary line of Charlotta Bethell's land. Nor was there ever any defined road beyond that line eastward, but people used to go eastward of the said line to the sea upon the said ancient enclosed lands marked (132), as and where they pleased and could, with carriages, carts, horses, and on foot, for the purposes of getting gravel and sand from the sea shore, or any other pur- I)ose they thought proper, and vessels occasionally brought cargoes of coal and anchored at high water. 298 1854. Regina V. Inhabitants ofHoRNSEA. CROWN CASES RESERVED. where they safely could near to the entrance of the road in question ; and all persons, at their pleasure, took carts to the vessels' side, and loaded their carts with the coal, and drove them away where they could and pleased, over (132), to the entrance of the road in question, and thence up the said road westward into the interior of the country. It was also proved that barges were in the habit of bringing limestone near to the entrance of the said road at high water, and then throwing it overboard on (132), when the same had become covered by the encroachments of the sea, or anywhere thereabouts ; and that carts from the country were brought in the same manner as before stated, at the pleasure of any one, down the said road, and thence to' where the limestone lay, which was then loaded upon them, and they were then driven away over (132) to the entrance of the Sea Road, and that the said landing place was principally used for ^he deposit of gravel so collected as aforesaid. The road, both before and for a considerable time after making the award, sloped gradually down towards the sea, which in extraordinary high tides came up to the landing place, but at other times came only about so far as shewn on the said plan. The Sea Road has, since the making of the said award, been repaired by the parish up to the varying termination of the road, as the same was from time to time swept away by the sea in such encroachments, and the passage down to the beach has been dealt with as hereinafter men- tioned. For many years the sea has been making encroach- ments upon this part of the coast, and within the forty- four years since the making of the award, the high water mark has advanced 104 yards inland. The whole of the said ancient enclosed lands of Charlotta Bethell, eastward of the said road, had been thus CROWN CASES RESERVED. 299 swept away by the sea, as has also about one-half of 1354. the said landing place, and about fifty-two yards of ^^g^^^^j^ the said road westward of the said ancient enclosed v. lands. The annual average destruction of the cliff ofHoRNSBA. along the coast there is about two yards and a-half, but upon the occasion of storms, sometimes three or four, and sometimes four or five yards of the said cliff in depth, westward, where the said road lies, and of the length of the said road, have been swept away at one tide. The land there is throughout of alluvial sand and clay, inclined , to gravel, and easily washed away by the sea. About twelve or fourteen years ago the sea made a considerable inroad, and the conse- quence was, that instead of a gradual slope down towards the sea, a steep perpendicular descent or face was made some distance up the road, westward of the said ancient enclosed lands of Charlotta Bethell (132), which rendered it impossible for carriages and carts to get down to the beach. The then parish surveyors caused a gap to be cut through this perpendicular face, and made a road passable for carriages and carts down to the then beach, although steeper and less commodious than before. This continued for some time, but within the last few years the encroachments of the sea have much increased, and at the time when the justices made the order for this indictment, and also at the time of the preferring it, nearly one-half of the extent of the road along the landing place oii- ginally awarded having, together with so much of the landing place, been destroyed, the termination of the road towards the sea became, and now is, a perpen- dicular cliff or bank, upwards of twenty feet high, which renders it impossible for any carriage or cart to get down to the beach, though a track has been made practicable for donkeys. The plan correctly shews the 300 CROWN CASES RESERVED. ISo*. former and present lengths of the road, and the former j^ggjj,^ and present lines of high water mark. »■ It was proved also, that a new road to the sea has ofHoRiNSEA. been lately made, which is coloured red upon the plan, and there called New Sea Road, which is now used by the public. It was also proved that a rate of 2s, %d. in the pound in the parish will produce between 500/. and 600/., and that the ordinary annual expenses of the repairs of the parish road is about 200/. Evidence was also given that the expense of making a substantial road of concrete, extending about fifty yards beyond the cliff would be about 600/., and that the annual cost of repair, and of keeping the same in connexion with the cliff, notwithstanding the annual destruction of the same, westward of the road or pier, by the encroachments of the sea, would be about 10/.; but such a road or pier must extend forty feet beyond and below high water mark at ordinary tides, and be forty-six feet wide at the base, having sloping sides, and forty feet wide at the top or surface. Evidence was also given that the cutting of a gap, and protecting it with side-walls, would cost about 200/., and an annual cost of 11. or 8/. for repairs. On the other hand, evidence was given on behalf of the defendants, that the making such a gap with wings or side-walls, an effective and permanent road down to the beach, and an annual expense of from 50/. to 100/. for repairs. That such a gap would not prevent the encroachments of the sea, and that the masonry and flanking walls of such wings would require to be frequently moved inland, as they became outflanked by the encroachments of the sea ; and that as the sides of the gap must be sloped if the road were made with a gradient of one foot in twenty, the cutting CROWN CASES RESERVED. 301 must be commenced at 400 feet inland of a width 1854. gradually increasing to the edge of the cliff, where ueghha it must be ninety feet wide at the surface level of the ^ , "• J. . . 1 , , . , , ,. 11. Inhabitants adjommg land, and with such a gradient would give ofHoRNssA no access to the landing place, or to the land opposite in that gap, I asked whether Counsel on either side desired that I should leave any question to the jury, and they stated not. A conviction of the parish surveyors by the justices, for the non-repair of the road, and an order to repair it under stat. 5 & 6 Wm. 4, c. 50, s. 94, dated 2nd September 1852, was, after being objected to, put in evidence, and may be referred to as part of this case, subject to any objection. But it seemed to me imma- terial. It was, in fact, made after the encroachments of the sea had completely stopped the road, but before the cliflF was rendered so precipitous as it is at pre- sent. No repairs were ever made under that order, and it was proved that the indictment was preferred by Mr. Galloway, at the instigation of a Mr, Cunning- ton, who is the owner of an hotel and some property immediately adjoining the termination of the road in question, bounded on the south by the said road, and on the east by the sea. It was admitted that the surface of the existing road was in good repair up to where the same had been swept away by the destruction of the cliff by the en- croachments of the sea, I directed a verdict of Guilty to be entered, subject to the opinion of the Justices and Barons upon the following questions : — Whether there exists a legal duty or obligation upon the parish to provide an available carriage road down towards the beach. If such duty or obligation exists, the verdict is to 302 CROWN CASES RESERVED. 1854. stand ; if not, the verdict is to be set aside, and a ver- jlj,gjjj^ diet of Not Guilty entered; , "• If the Justices and Barons be of opinion that such Inhabitants , . , i , x i i ^ • ^l ofHoRNSEA. duty exists, they are requested to state what is the description of the road which it is incumbent upon the parish to provide ; and it was agreed at the trial that they should have power to order any fact to be ascertained, by a surveyor or otherwise', in order to enable a final and conclusive judgment to be given upon the indictment. It was also agreed that they should have the same power with respect to costs, as well of the trial as of the argument upon this case, as I could have legally exercised at the trial or afterwards. S. Martin. On the 11th February 1854, this case was argued before Jervis C. J., Maule J., Wightman J., Wil- liams J., and Platt B. Bliss Q. C. (with him P. Thompson) for the de- fendants. The sea having swept away the land over which the road formerly went, the obligation to repair is gone with the road (a). (a) This was the second head of the argument of the Counsel for the defendants, and as it was upon this point alone that the judgment of the Court proceeded, the argu- ments on the other points are omitted. The other contentions by the Counsel for the defendants were, 1. That on the facts of the case there never was a highway to the German Ocean, and for this po- sition Rex V. The Inhabitants of Hatfield, 4 Ad. & El. 156. was cited. 3. That the parish did not possess the power to make a road, either by a gap or by embanking, and that their doing so would in- volve injuries to the owners of the soil, to the sea bank and to the navigation and fishery ; and on this point the following authorities were cited : Bo. Ahr. 392. Letter B., pi. 1, 2. Goodtitle v. Alker arid ^no*Aer, 1 Burr. 133. BlundellY. Catterall, 5 B. & A. 296, 305 ; 4 Vin. Abr. tit. Chemin, pi. D. 1. Callis on Sewers, 73, 74. Attorney General V. Richards, 2 Anstru. 603. Stat, of Sewers, 22 Hen. 8. Stat. 7 & 8 Geo. 4, c. 30, s. 12. R. v. Stanton, 2 Show. 30. Year Book. 8 Hen. 7, 5. Woolrych on Water Rights, 172. 4. That if any obli- gation existed, it extended only to reasonable repairs^ and that the re- pairs here required were unreason- able, and would be fruitless, and on this point Rex v. Landulph (1 M. & Rob. 394, 395 ».) was cited. CROWN CASES RESERVED. 303 Jervis C. J. — The question is whether there is a 1854. highway to repair. You say the highway does not rbgina now exist. «'■ Ti/r T r • 1 • 1 11 1 Inhabitants Maule J. — it IS stated in the case that the road of Hornsea. up to where the sea has swept it away is in good repair ; and the question is, whether the parish is bound to reinstate that part of the highway which has been swept away, and then to repair it. Bliss. That question was decided by the case of Begina v. Bamber, 5 Q. B. 279. There the road which the defendant was charged with liability to repai|k and the land over which it passed were washed away by the sea, and to restore the road the defendant must have created part of it anew, and all the materials of which a road could have been made had been swept away by the sea. Under these cir- cumstances, it was held by the Court of Queen's Bench that the defendant's liability had ceased. Again, in Regina v. The Inhabitants of the Parish of Paul (2 Moo. & Rob. 307), on an indictment for the non-repair of a highway in the ordinary form, it was held by Mr. Justice Maule that the parish could not be convicted for not rebuilding a sea-wall washed away by the sea, over the top of which the alleged way used to pass. In that case Mr. Justice Maule says — "The interruption of the passage is not from the want of repair, but from the sea having washed away the wall or embankment, and there is no longer anything for them to repair," So in this case, the sea having washed away part of the road, there is, as to that part, no longer anything for the defendants to repair. In The King v. Montague and Others, (4 B. & C. 598), it was held by the Court of Queen's Bench, that a public right of navigation may be extinguished by natural causes, such as a recess of the sea. In that case Mr. Justice Littledale says — " It appears to rae 304 CROWN CASES RESERVED. 1854. a more reasonable presumption that the passage, if it B^jj^j^^ ever existed, was stopped up by natural causes, by the «: recess of the sea, or by an accumulation of silt and ofHoKNSEA. mud, which we know by experience is constantly going on in many of the harbours of this country, and by which they would eventudly be choked up, unless artificial means of cleansing them were adopted." Maule J. — There was a case on the Midland Cir- cuit which is not reported, in which a road was charged in the indictment to have existed from time imme- morial, but it was shewn that although there were traces of a road, the road itself had not in faf t existed as a road for a great many years, and there were upon it quarries and trees more than one hundred years old, and it was held to be no highway. Whether there is a road or not, is a question to be decided by inspection. Williams J. — If the sea had retreated instead of gained, would the parish be bound to repair to the sea ? Bliss. I apprehend not. Jervis C. J. — If the sea imperceptibly retreated, there might be an obligation to repair to the sea, but not if the sea retreated visibly and at once. Bliss then proceeded to argue the other points raised on behalf of the defendants, and which are referred to in a note (a), ante, p. 302. Hall R. (with whom was W. S. Cross) for the pro- secution. There is a great fallacy in supposing that there is a single inch which has ceased to be a high- way. The sea is the only terminus of highways, and the whole of the road was and is a highway to the German Ocean. For a certain number of yards, the road is over the sands, and the parish is bound to re- pair that portion of the road in such a manner as it is capable of being repaired, although they would not be bound to metal it as they would other parts of the road. It cannot be disputed that the highway exists CROWN CASES RESERVED. 305 to the edge of the ch'ff, and also exists from the foot of 1854. the cliflF across the sands to the ocean. There is also j^g^jj,^ a road down the clifF, althou&^h it is not one easy of ^ , »• . ° 1-1 Inhabitants access. A carriage or cart cannot get by it down to of Hornsea. the beach, but the case expressly finds that a track has been made practicable for donkeys, and carriages may be brought to the edge of the cliff, and to the foot of the cliff, and other measures are resorted to to raise coals and other articles up the face of it. Maule J. — The indictment does not charge that there ought to be a public highway, but that there is one. ^hat part of the road do you say is out of repair ? Hall. We say that there is a highway, that the line of road is down the cliff, although the public must in its present state get up and down as they can ; and if that be so, the parish are bound to repair it. The road has become impassable by the defendants suffering it to come to an abrupt interruption, by not taking means to prevent the slope being washed away. Maule J. — The road was on that slope, and the slope has been washed away by the sea. Suppose a man to stand on the top of the cliff and look on to the beach, would he see any subsisting road down to the beach ? The road is gone. What is it you say the parish are bound to do ? JTall. I do not say what the precise thing is which they must do. There were contradictory opinions upon that subject given by the witnesses on the trial, and if the Court is of opinion that the obligation to repair exists, your Lordships are requested, by the'case, to state what is the description of road which it is incumbent upon the parish to provide. In Meg. v. The Inhabitants of the Parish of Paul (2 Moo. & Rob. 307, cited on the other side) the indictment was VOL. I. z 306 CROWN CASES RESERVED. 1854. for not rebuilding a sea wall, and there never was in regina f^ct a road over the wall. ^ ^ ?: Williams J Does it affect your argument whe- ' Inhabitants ,11 of Hornsea, ther it is to be taken that the road does not exist, or that it has become impassable by the act of God ? Hall. The want of repair is not caused by the act of God, but by the neglect of the parish in not pre- venting the encroachments of the ocean. Maule J Probably there were roads over the Goodwin Sands from Margate when the land was in continuity with the isle of Thanet ; but I do not sup- pose any one will say that the parish would now be bound to repair them. There is no such thing as an absolute right against the act of God. To restore this road would be an engineering work of consider- able difficulty and expense. When the common law was formed, such great engineering works were not contemplated. Hall. The other side contended that there never was a highway to the German Ocean. We say that there was, and if so, when did it cease to be a road? If there is now a road, although it is impassable, the parish are under an obligation to repair it. Jervis C. J. In what way ? You cannot cut down perpendicularly. The depth would render it necessary to slope the sides, and you cannot do that because you have no right to remove the land of the adjoining owners. Hall. The right of soil might be compensated. The shingles being removed is the cause of the cliff going*, and the parish ought to have preserved the sea bank. He then referred to an old commission in 3 Rich. 2, relating to a great flood at Winchelsea. Fitzherb. N. B. 127 D. Maule J. — The result of the form of this indict- CROWN CASES RESERVED. 307 ment is, that if there is no highway, the case does not 1854. exist in which the liability in question can fall upon the regina~ parish. The indictment says that there is a highway, "• , , . . p . , , /.IT Inhabitants and that it is out or repair; but the case nnds dis- of Hornsea. tinctly that that part of the road which the indict- ment alleges to be out of repair has, in fact, been washed away by the sea, so that the subject of repair is not in existence. All that exists of the road is in good repair. The judgment of the Court must be for the defendants. WiGHTMAN J. — I am of the same opinion. The subject-matter is gone. The indictment charges that there is a highway, and that it is out of repair ; but the case shews, that the part of the road alleged to be out of repair has been swept away by the encroach- ments of the sea. That part of the road is gone, and such part of the road as has not been swept away is in good repair. The real charge is, that the defendants did not make the highway, and not that they did not repair it ; and, as my Brother Maule has observed^ in order to create an obligation to repair, there must be something in existence capable of being re- paired. Williams J. — I am of the same opinion. It is suf- ficient for us to say that there is no highway to be repaired (a). Judgment for defendants. Hall then mentioned the subject of costs. Bliss claimed the right to begin ; but the Court held that the question of costs was not one within their jurisdiction, and refused to entertain it, although it was expressly agreed by the case that the Court (a) Jervis C. J. and Platt B. were not in Court when the judg- ment was given. z 2 308 CROWN CASES RESERVED. 1854, should have the same power with respect to costs a = Regina the Judge could legally have exercised at the trial (a). V. Inhabitants of HoRNSBA. (a) As to the question of costs, Clark, 5 Q. B. 887. R. v. Heanor, see 6 & 6 Wm. 4, c. 50, s. 95. R. 6 G. B. 745. R. v. Paul, 2 M. & V. Martin, 2 Q. B. 1037 n. R. v. Bob. 307. R- v. Justices of Surrey, Chedworth, 9 C. & v. 285. R. v- l6Jur. 641. 1854. REGINA v. OVERTON. O. was in- At the general session of oyer and terminer and embezzle- g^ol delivery, holden for the jurisdiction of the Cen- ment, and for tj-ai Criminal Court, on the 28th November 1853, the purpose • ' ,of proving Henry Nelson Overton was tried and convicted be- afthe^rson fore me of embezzling the two sums of 23Z. 14s. and receiving cer- i^l. 4s. &d., received by him on account of his masters, tain moneys •' from s. & Joshua Proctor, Brown, Westead, and others, prosecutors, Thomas Stone, a clerk in the employment of Messrs, an entry in a Shoolbved & Co., deposed to having paid two cheques book ofS. & 'r PiiT-TrT Co. was read lor those amouuts on account of the said Joshua Proc- Thraccount ''"'' Brown, Westead & Co., trading under the firm and was kept in style of the Patent Wadding Company, to a person four columns, -i . ^ ■ i in the first who, at the time or the payment, named the amount ent^red'thT^ due to his employers, and subscribed the entry in the dates; in the book of Messrs. Shoolbrcd, which was produced at the 86COUQ dl6 name of the trial. This book was kept in the form of the facsimile whosrhehaif hereunto annexed. In one of the columns were en- the money tered the names of all the creditors who had supplied was received; '^'^ in the third the signature of the person receiving ; and in the fourth the amount of the particular payment made by S. & Co. Held, that the entry, as explained by the evidence, amounted to a receipt, and that even for the purpose of proving identity, the whole entry could not be read without a stamp, and that therefore the conviction was wrong. CROWN CASES RESERVED. 309 the firm of Shoolbred & Co. with goods, and in the 1854. last column, and opposite to the names of the cr.ieditors, qverton's were entered all the sums due to each, and in an in- Case. tervening column was written the signature of the person who received the money at the time when each account was paid. The course of business was this ; viz., when any person called for the amount due to any creditor whose name was entered in the book, he was asked the amount of the debt claimed, and if the amount thereupon named by him corresponded with the amount entered in the book, the debt was im- mediately paid by Messrs. Shoolbred's clerk, and the person receiving it was required to sign his name in the middle column of the book, intervening between the name of the creditor and the sum entered as the amount of the debt. No other receipt was required or taken by Messrs. Shoolbred; but, on the other hand, if an entire stranger to both parties called for the debt, and mentioned the amount correctly as entered in the book, he would receive the money upon writing • his signature opposite the entry as above described. Mr. Parry, for the prosecution, tendered this entry in evidence, and proposed, by means of the signature, to identify the prisoner with the person receiving the cheques. Mr. Ribton, for the prisoner, contended that the entry, and objected that being unstamped (which was the fact) it was inadmissible against the defendant either in whole or in part. I overruled the objection, and I'eceived the entry in evidence. It appearing that the signature was that of the defendant, and the other necessary facts having been proved, the defendant was convicted. Entertaining, however, some doubts upon the cor- rectness of my ruling, I consented to reserve the point 310 * CROWN CASES RESERVED. 1854. for the Justices of either Bench, and Barons of the Overton's Exchequer, in pursuance of 11 & 12 Vict. c. 78. And ^^^^- the foregoing is the case upon which their determina- tion is requested, and whether the entry in the book was a receipt for money within the Stamp Acts ; and whether, being unstamped, it was improperly admitted in evidence ? Judgment has been respited upon the prisoner, and he stands committed to Newgate, awaiting the result of this case. J. Stuart Worthy, Recorder of the City of London. This case having been sent back for amendment in the manner required by the order of the Court for the consideration of Crown Cases Reserved, (a) pursuant to the statute 11 & 12 Vict. c. 78, bearing date the 21st January a.d. 1854, I now state that the signature _ (a) Court for the Consideration 'of and been reserved for the conside- Crown Cases Reserved, pursuant ration of the said Justices and to the statute 11 <^ 12 Vict. c. 78. Barons, and the said Justices and At a sitting of the said Court, Barons having duly proceeded to holden at Westminster, on the 21st the hearing and determining of the day of January, a. d. 1854, before said questions : It was considered the justices of either Bench and by the said Justices and Barons Barons of the Exchequer, the Lord that the said case required amend- Chief Justices of the Court of ment, and that the same should be Common Pleas presiding, assem- amended so as to disclose whether bled for the purpose of hearing the whole of the entry therein re- and determining questions of law ferred to was tendered in evidence reserved for their consideration, upon the trial of the said Henry under and by virtue of the statute Nelson Overton, and whether the in that behalf. said Recorder had ruled that the A case having been transmitted whole of such entry might be from the Recorder of London to read in evidence, or the signature the said Justices and Barons, set- of the said Henry Nelson Over- ting forth the conviction of the ton thereto only, and if the whole said Henry Nelson Overton, at a of the said entry had been given in session holden for the jurisdiction evidence, or used before the jury of the Central Criminal Court, and upon the said trial, stating certain questions of law Marshall Straight, which had arisen upon his trial. Clerk of the said Court. CROWN CASES RESERVED. 311 was offered in evidence by the prosecution, to prove 1S54. the identity of the prisoner ; and the rest of the entry qvebton's was adverted to by the Counsel for the prisoner Case. without objection on the part of the prosecution. Under these circumstances I overruled the objection taken by Mr. Ribton, and received the whole entry in evidence, in order, by means of the signature thereto, to identify the prisoner as the person to whom a wit- ness had already proved that he had paid the cheques. I ruled that the said entry might be read in evidence for that purpose only, and it was read to the jury accordingly. /. Stuart Worth]/, Recorder of the City of London, (a) This case, which was part heard on the 21st January 1854, and which was sent back to the learned Recorder to be amended, was argued on the 28th January 1854 before Jervis C. J., Maule J., Wightman J., Platt B., and Williams J. ,Metcalfe for the prisoner. It is submitted that the entry in question amounts to a receipt, and cannot be used in evidence without first being stamped. If the entry amount to a receipt it cannot be used even for the purpose of identification of the prisoaer In (a) 1853. £17,000. £12,000 Nov. 1 A. B. & Co. John Doe. , , £100 " 2 " 3 " 4 " 5 " 27 C. D. & Co. Richard Roe. Patent Wad-. ding Com- . H. N. Overton • ■ £22 4 pany. " 28 14 6 " 29 The above is the form of entry in the books of jS. & Co., and Which form was transmitted to the Judges by the learned Recorder, together with the amended case. 312 CROWN CASES RESERVED, 1854. Spawforth v. Alexander (2 Esp. 621), it was held that Oveeton's a party who, on payment of a bill, writes the word ^^*^- settled by way of receipt, is liable to an action of debt, qui tarn., on the 35 Geo. 3, c. 55, s. 7, for the penalty. It was contended for the defendant in that case that it was not a receipt within the meaning of the act, and it was said by Lord Kenyan, " It is not necessary to have a receipt given in any specific terms. It is sufficient if it purports to be a discharge, and is intended to operate as such." In the cases of Matthewson v. Ross (2 H. L. Cases, 286), and Eoans V. Protheroe (Macnaug. & Gor. 319), the observations of Lord Cottenham and Lord Campbell in their respective judgments are conclusive. It is admitted that the signature might have been used to have proved the identification. In Jardine v, Payne (1 B. & Ad. 663), it was held that an un- stamped bill, or one improperly stamped, might be looked at for a collateral object, as was done in the case of Gregory v. Fraser, 3 Camp. 454, But in the present case the whole entry ought not to have been read to the jury. It is therefore submitted that this conviction was wrong. Parry, for the Crown. It is conceded that the whole entry was read at the trial, but it was distinctly stated, that it was offered for the mere purpose of identification. Jervis C. J.— Then it falls within the doctrine of Lord Campbell, Protheroe v. Evans, cited by Mr. Metcalfe. Parry. It is contended further, that if this be so, the document in question is not a receipt within the Stamp Laws. Jesvis C. J, — But may it not be proved, by evidence aliunde, to be a receipt ? Maule J, — There was a recent case decided by this Court, which shews that a paper may be shewn by CROWN CASES RESERVED. 313 parol evidence to be an order for the payment of 1854. money, so as to support an indictment for the forging Ovbrton's an order for the payment of money. ^*^^" Parry. There is such a case, R. v. Snelling, re- ported 'in Dearsly''s Crown Cases, vol. 1, page 219. This document is a mere memorandum, similar to that in E. v. Harvey (R. & R. 227), and is not one acknowledging the receipt of money, but rather im- porting payment of money on an application for money. Jervis C. J. — There is the case of R. v. Boardman, 2 Moo. & Rob. 147. Platt B Is it more than a memorandum of the man's name receiving the money 1 Jervis C. J. — There is the case of R. v. Hunter (2 Leach, 624), where it was held that a document which did not purport to be a receipt on the face of it, was held capable of being brought within the statute by apt averments in the indictment. Metcalfe replied. Jervis C. J.— This conviction is wrong. There are two points for consideration. 1st. Is the entry a receipt ? 2nd. Is it, unstamped, capable of being given in evidence ? I think it a receipt, and therefore requires a stamp. R. V. Hunter shews that a document, containing a signature without more, may by apt averments be made to signify a receipt. In this case, the person receiving the money was required to sign the book, and evidence aliunde shews it to be a receipt. I think myself bound by R. v. Hunter, and that the docu- ment required a stamp ; and, therefore, the entry could not behead for a purpose involving the receipt of money by the prisoner. To read the whole entry was wrong. The signature might have been u>:ed for 314 CROWN CASES RESERVED. 1854, proving the identity of the prisoner. The proper Overton's course then would have been to have asked the wit- Case, ness, whilst the book was lying before him on the witness-box, whether he paid the money to the party who signed that book, and to have proved that the signature was in the prisoner's handwriting. The proof would then have been the same as if he had left a knife behind him when he received the money, and would have been free from objection on account of the Stamp Laws. Maule J. — I think the conviction wrong. It is said the entry was used to prove the prisoner was in a certain place, whereas it only proves that he re- ceived the money. It is not used for a collateral purpose, but for one in which the receipt of money is involved. If you said the person I paid the money to wrote his name on a piece of paper, and another witness is called and looks at the paper, and says that it is the prisoner's handwriting, that would be right ; but here the whole entry is read to the jury, which proves the payment to the prisoner, and it being un- stamped was clearly inadmissible. WiGHTMAN J., Platt B., and Williams J., con- curred. Conviction quashed. CROWN CASES RESERVED. 315 REGINA V. HEWGILL. 1854. At the Epiphany Quarter Sessions for the county I" an in die t- of Southampton, holden at Winchester on the 2nd taining Januari/ 1854, ff. F. Heiogill, clerk, was indicted fTe'p;".''"'"' for obtaining the sum of \hl. under false pretences, tences, the rpi • !• . /. 1, only pretence 1 ne indictment was as lollows : charged was " County of Southampton, to wit.j The jurors for ^^^^"^l ^^• our Lady the Queen, upon their oath, present that falsely pre- Henry Frederic Hewgill, late of the parish of Titchfield t^w. tha°°^ in the county aforesaid, clerk, on the 17th day of crived^an" November 1853, was curate of Crofton, in the said order forpay- parish of Titchfield in the county aforesaid, and being money from such curate on the day and year aforesaid, at the parish f^'j^g ^' and county aforesaid, unlawfully and knowingly did mentofa falsely pretend to one Thomas Waters that he the said salary then Henry Frederic Ilewqill had received an order for the "^"f ^""^ , •^ ^ . owing to the payment of money, to wit, the sum of 25^., from one defendant, Walter Maude Cosser (he, the said Walter Maude Luhe"''"'^'* defendant was curate to the said W. M. C, and that the defendant, after telling T. W. that he had received an order to go and receive his quarter's salary of L., and that L. was vewUl, and could not do it for him ; asked T. JV. to let him have the money, and sheweol^Spaper to this eflFect : " Received of L. the sura of 251. for the Rev. W.M. C.'a note." T. #: gave him 151., and the defendant gave him the following receipt : " Received from T. W. 151. on account of Rev. W. M. C.'s order for 251." T. W., in his evidence, stated that he had no doubt the paper produced by the prisoner was genuine, and that he rested on that as much as on the other part of the transaction; that it contributed to produce confidence, and that it was in consequence of what he saw, and what the prisoner said, and what the prisoner gave him that he was induced to let the prisoner have the money. T. W. also said that the defendant first told him that he had received a letter from W. M. C. that morning, wishing him to go to L. and draw his quarter's salary, and that that was part of the inducement to T. fV. to let the prisoner have the money. The points left to the jury were, 1. Did the defendant make use of the pretence alleged in the indictment? 2. Did T. PF. part with .his money in consequence of his belief in that pretence ? 3. Was that pretence false ? 4. Did the defendant obtain the money with intent to defraud f The jury returned a verdict of Guilty. Held, I. That there was no variance between the pretence laid and the pretence proved. 2. That the actual substantial pretence on which T. W. parted from his money was the pretence of the order. 3. That the manner in which the case was left by the Court to the jury was right. 316 CROWN CASES RESERVED. 1854. Cosser, being then and there well known to the said Hewgill's Thomas Waters), as and for the payment of a quarter's Case. salary then due and owing to the said Henry Frederic Hewgill in respect of the said curacy, and did then and there, by reason of the said false pretence, unlawfully obtain and have from the said Thomas Waters the sum of 15Z. of lawful moneys of the realm of the goods, chattels, and moneys of the said Thomas Waters, with intent then and there to defraud : whereas in truth and fact, as the said Henry Frederic Hewgill then and there well knew, the said sum of 25Z. was not then and there due and payable to him the said Henry Frederic Hewgill in respect of his said curacy, nor had the said Walter Maude Cosser given to him, the said Henry Frederic Hewgill, any order for the payment of the said sum of 25/. in respect of the said quarter's salary, nor for any sum, to the great loss and damage of the said Thomas Walters, and 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, so far as is material to the present case, was as follows: Thomas Waters. \\\\'e3.iTitchfield. I am a grocer. I have known defendant for a period of fifteen months. He was clergyman at Crofton. Mr. Cosser is the vicar of Titchjield. On the 17th November, defendant came to my shop, and told me he had received an order that morning to go and receive his quarter's salary (25?.) of Mr. Leighton. That he had been there, and finding MY.'Leighton very ill in bed, he could not do it for him. He then asked me if I could oblige him with the money. I then went up-stairs, and on my return told him I could not do it. Before I went up stairs, he shewed me a paper, which I read and returned to him again. It was to this effect — " Received of Mr. Leighton the sum of 25Z. for the Rev. W. M. Cosser's CROWN CASES RESERVED. 317 note." It was in defendant's handwriting, and signed 1854. Henry Hewgill. Defendant then asked if I could Hbwgill's oblige him with part. I said I would see. He said he **®" wished to pay it away. I then fetched him 15/. He gave me a receipt, which I now produce. It was as follows : "Titchfield, November 17, 1853. " Received from Mr. Waters the sum of 15/. on account of Rev. W. M. Cossers order for 251. "£15." '' Henry HewgilL" I gave him the money on account of my knowing Mr. Cosser, and I did not doubt defendant's word. He told me he had an order. 1 did not see it; but I believed his word. I have not been repaid. Cross-examined. I have applied to Mr. Cosser, but I have never applied to Mr. Hewgill for the money. I told him if he would call again in an hour or two I would oblige him with the remainder of the money. I knew Mr. Hewgill before. I had no doubt the paper he produced was genuine. I acted on that as much as on the other part of the transaction. It contributed to produce confidence ; and it was in con- sequence of what I saw, and what he said, and what he gave me, that I was induced to let him have the money. Without the receipt I should not have done it. Crofton is about a mile from Titchfield. I know Mr. Leighton. Defendant first told me he had received a letter from Mr. Cosser that morning. That was part of my inducement to let him have the money. He had the paper in his hand at the time, which he *had taken to Mr. Leighton. He said the letter was wishing him to go to Leighton and draw his quarter's salary. That he had been to Mr. Leightons, and he was ill ; so he came to me, and I might receive it from Mr. Cosser. I expected to receive the money from Mr. 318 CROWN CASES RESERVED. 1854. Cosser. I give the words which passed to the best of Hewgill's ™y recollection. It was a week or ten days before I Case. repeated the conversation to any one. Mr. Hewgill had been in my shop before. I am sure he used the word letter. He said he had received a letter from Mr. Cosser that morning, wishing him to go to Mr. Leighton to receive his quarter's salary. Finding Mr. Leighton was ill, he then came to me, and asked me if I would oblige him, and then he shewed me the receipt he had drawn for Mr. Leighton, which he had in his hand. He laid it on the counter and I read it. At the time I gave him the money he said he would give me a receipt, and did so. That, and what he said besides, was the security I was to have for it. I was not going to part with my money without having a receipt for it. Re-examined. I did not tell him I should not part with my money without a receipt. Before I gave him the money he said he would give me a receipt. I parted with the money from knowing him and Mr. Cosser, and believing what he said. .Had I known he had no order from Mr. Cosser, I should not have let him have the money. Revd. W. M. Cosser. I am Vicar of Titchfield. Defendant was my curate, and resides in the chapelry of Crofton. His salary was 100/. a-year, payable quar- terly on the 1st January, 1st April, 1st July, and 1st October. It was payable from me through three different sources, and was payable either by an order on diie of these sources or by a cheque on my own banker. The salary was paid up to the 1st October, and no more was due till the 1st of January. I had given him no order on the 17th of November to go to Mr. Leighton for his salary. I had not written to him on the subject. I had received no application from Case. CROWN CASES RESERVED. 319 him. Application has be,en made to me, on behalf of 1854, Mr. Waters, for payment of 151. I have refused to hewgill's pay it. Cross-examined. Every quarter an order was drawn by me on the Treasurers of the Additional Curates' Society, the Dean and Chapter of Winchester, and the Lessee of the Great Tithes paid the residue. I usually gave the orders to.the defendant. I did so the last time of payment. Had it been payable be- tween the quarters, the portion of salary which would have been due on the 17th November would have been ISl. 9s. Thirty shillings was due to him from me for occasional duty. I know Mr. Leighton. He some- times cashed private cheques for me. At the close of the case for the prosecution, objection was taken by the prisoner's Counsel that the indict- ment was not supported by the evidence. That there was a material variance between the pretence laid and the pretences proved. That the only false pretence alleged was that defendant had received an order for the payment of money from Mr. Cosser, purporting to be as and for the payment of a quarter's salary then due, and owing to him in respect of his curacy ; whereas the proof was of the receipt of a letter wishing him to go to Mr. Leighton to receive his quarter's salary, and that beyond the pretence laid there were other things proved to have been essential parts of the prosecutor's inducement to part with his money (viz. the receipt drawn for Mr. Leighton and the receipt for 15/. given to prosecutor), and material parts of the pretences as proved, which were not stated at all as they ought to have been. They cited R. v. Plestow, 1 Camp. 494 ; R. v. Cartwright, R. & Ry. 106; R. v. Perrott, 2 M. & S. 390 ; Bayley J., R. v. Wickham, 10 Ad. & El. 34. 320 CROWN CASES RESERVED. 1854. But the Court being of opinion that the statement Hbwgill's made by defendant that he had received a letter Case. wishing him to go to Mr, Leighton to receive his quarter's salary, was not a variance from the pretence that he had received an order for the payment of money ; nor a separate pretence, but either identical with it or a mere explanation how he was to get the pretended order cashed.; that the receipt of Mr. Leighton operated merely to produce confidence in the pretended order, and that the receipt to prosecutor was only required by him as a security to satisfy Mr. Cosser that the money had been paid on his order, overruled the objection. Four points were left to the jury. 1st. Did defendant make use of the pretence alleged in the indictment, viz. : That he had received an order for payment of 25^. from Mr. Cosser for a quarter's salary, then owing to him in respect of his curacy ? 2nd. Did prosecutor (Waters) part with his money in consequence of his belief in that pretence ? 3rd. Was it false ? 4th. Did defendant obtain the money with intent to defraud ? The jury returned a verdict of " Guilty." The Court was then requested by defendant's Counsel to put the following question to the jury, — " Was the money obtained as well by the produc- tion of the paper, which had been drawn up for Leighton, and the giving a receipt for the money-and the other circumstances proved, as by the statement of an order received from Mr. Cosser, or by the state- ment that he had received an order from Mr. Cosser only," which as involving the points already over ruled, the Court declined to do. '^^^Sc'Sffi CROWN CASES RESERVED. 321 Defendant was sentenced to six months' imprison- 1854. ment, and is now undergoing bis sentence. Hewgill/s Defendant's Counsel having demanded a case for Case. the judgment of criminal appeal, the above is sub- mitted for the opinion of the Court. If the Court shall be of opinion that the ruling of the Court of Quarter Sessions on the objection taken, and the direction to the jury in conformity therewith was right, the judgment will be confirmed, if not it will be reversed. F. R. Thresher, Chairman. This case was^ argued on 11th February 1854, before Jervis C. J., Maule J., Wightman J., Platt B,, and Williams J. No Counsel appeared for the Crown. C. Saunders (with him Poulden) for the prisoner. The indictment is not supported by the evidence. There is a material variance between the pretence laid and the pretence proved. The decided cases (a) shew that in an indictment for obtaining money by false pretences, the pretences must be distinctly set out, and that at the trial they must be proved as laid. In this indictment one false pretence only is alleged — namely, that the prisoner had received an order for payment of his salary then due and owing in respect of his curacy. No order for payment of money is proved. Wightman J. — If an order had been proved it would not have been a false pretence. Saunders. It was not proved that the prisoner pretended that he had received an order. The proof (a) The cases cited were those referred to in the case reserved, and also R. V. Thorn, C. & M. 206. VOL. I. A A 322 CROWN CASES RESERVED. 1854. was of the receipt of a letter, wishing him to go to Hewgill's Mr. Leigkton to receive his quarter's salary. ^^''- Jervis C. J.— Is not that letter an order? Unless you can say that it is not an order there is nothing in it. Saunders. It might well be that the defendant had received such a letter as he said he had ; and if so, that letter would not have been an order. In Bex V. Plestow (1 Campb. 494), the pretence charged was that he, the prisoner, had paid a sum of money into the Bank of England ; but the evidence was that the prisoner said generally that the money had been paid into the Bank of England, and that was held to be a fatal variance. Maule J. — There the assertion that an individual had paid in the money was not proved ; but what assertion is laid here which is not proved ? Saunders. The evidence of the witness Waters shews that he did not part with the money solely on the grounds alleged in the indictment. Jervis C. J. — We are asked whether the ruling of the Court and the direction to the jury were right ; and our answer is that they were right. Because it came out on cross-examination that the defendant said that he had received a letter, therefore it seems to be contended that he did not say that he had received an order, and that there is a variance between the pre- tence laid and the pretence proved. I do not think there is any variance. The objection was that it was not proved that the prisoner pretended that he had received an order for money then due and payable ; but what can be the meaning of saying that he had received an order for a quarter's salary, but that it was due and payable ? Another objection is, that part of the inducement to the prosecutor to part with his money, was the receipt, and that that inducement is CROWN CASES RESERVED. 323 not averred in the indictment ; but tlie actual sub- 1854. stantial pretence was that he had received the order ; Hewgill's the order, and not the receipt, v?as the main induce- ^'"*^' ment upon which the money was parted from. The pretence was found by the jury, and correctly found. The ruling and direction were right, the verdict was right, and the objections were wrong. The rest of the Court concurred. Conviction affirmed. REGINA V. ABRAHAM GREEN. i854. At the Quarter Sessions for the county of Cambridge, G. was in- holden on the 3rd day of January 1854, Abraham iarceny.°'The Green was indicted for stealing, on the 10th day of evidence . •= ^ •> shewed that September last, certain moneys of and belonging to he was the his mdiSXev, Alexander. Cotton, Esq. l'J°vant'rthat The prisoner was bailiff to the prosecutor, audit i'washis P 1 . 1 . 1 , duty to re- was part 01 his duty to receive and make payments on ceive and pay behalf of the prosecutor. An account of these receipts ^e'prose-'^ and payments was kept in a book in the prisoner's '=«'<"■' ^nd custody, which was examined by the prosecutor at of such re- irregular intervals. An examination was made on the pa^ments^in day oi July last, and another on the day of a book which _- ,, ,, .,.,., was examin- JJecember last, and the account comprised within these edby the dates, among many items, the following payments, ^ro°4^tjJ^e\o viz, ti™6 j that the prisoner, on one occa- sion, shewed a balance in his favour of 22., by taking credit for payments falsely entered in the book as having been made by him, when in fact they had not been made by him, and that the prisoner received from his master the sum of 11. as a balance due to him. Prisoner was convicted. Held, that the conviction was wrong. A A 2 324 CROWN CASES RESERVED. 1854. " 1853, August 13. Green's James Ludkin . ,£180 Ca^e- Samuel. Pryke . . . 18 John Brown . . 18 and twelve other names against which stood the same amount.. There was a series of similar items under dates of the 20th and 27th of ^m^'ms^ and the 3rd, 10th, and 17th of September; and on the 17th of September this series of payments : — " James Ludhin - - 15s. Od. Samuel Pryke - - 15s. Od." and thirteen other names against which stood the same sum of 15s. Od. John Brown proved that he was engaged by the prisoner to work for the prosecutor during the last harvest. The rate of wages was not named, but the witness knew that the other labourers were to receive 11. 8s. a week, and he expected the same. The pri- soner paid him 1^. on each of the following days, viz., the 13th, 20th, and 27th of August last, and on the 3rd and 10th of September last. The witness complained on the 20th and 27th of August, of receiving no more than 11., and about ten days after the 10th of September, the prisoner paid him 1^. in addition, making his wages 1/. 4s. a week during the five weeks. James Ludkin proved that he was engaged by the prisoner to work for the prosecutor during the harvest, and that he received ll. 8s. on each of the following days, viz., the 13th, 20th, and 27th of ^w^ws^.and on the 3rd and 10th of September. On the 17th Sep- tember, the prisoner paid him lis. 6d., and on his complaining that he did not pay him 15s,, the sum he paid the other labourers, the prisoner said.it was because he was working in the barn. CROWN CASES RESERVED. • 325 Samuel Pryke gave similar evidence. jgg^, Each side of the account, which extended from the —z ; — GtREjEN s day of July to the 3rd day of December last, Case. contained numerous items, amongst which were pay- ments made for the purchase of goods by the prisoner on account of the prosecutor. By one of these items the prisoner gave the pro- secutor credit for 11. 5s., which, it was stated by his Counsel, though no proof 'offered of it, he had not in fact received. There was no entry in the book in the handwriting of the prisoner. The prisoner was present during all the time the prosecutor was examining the account, and signed his name to it on the prosecutor doing so ; but his atten- tion was not called to any particular item. There was on the account a balance of 21, due to the prisoner, which the prosecutor paid him. At the conclusion of the evidence for the prosecu- tion, the prisoner's Counsel contended, on the autho- rity of The Queen v. Chapman, that the offence charged was neither larceny nor embezzlement, and submitted to the Court that on these facts the Court should direct an acquittal. The Chairman directed the jury that the deduction of the five several sums of 4s. from the five weekly sums of 11. 8s., to be paid to Brown, and of the several sums of 3s. 6d. from the weekly sums of 15s., to be paid respectively to Ludkin and Pryhe, amounted to larceny, and told the jury that by a recent act they were enabled to return a verdict of either larceny or embezzlement, as their minds might be directed by the evidence ; on which the jury found a verdict of Guilty, whereupon judgment was postponed, and the prisoner discharged on bail to appear and receive judgment at the next Quarter Sessions for this county. The opinion of the Judges is asked whether the jury 326 • CROWN CASES RESERVED. 1854. could on these facts properly convict the prisoner of Green'8 larceny. Case. Miot Thos. Yorke, Chairman Q. S. This case was argued on the 11th day of February 1854, before Jervis C. J., Maule J., Wightman J., Williams J., and Platt B. Tozer for the prisoner. There was no evidence of larceny or embezzlement. There was no evidence that he received any money from his master except the 2Z. Maule J. For ought that appears, the payments may all have been out of his own money. Williams J. The prisoner falsified the account, but the question is, was he guilty of larceny ? Wightman J. The evidence is, he entered money as paid which he had not paid. Jervis C. J. And that he did so for the purpose of obtaining thereby a portion of the sum of 2Z. We are all of opinion that the offence of which the prisoner was guilty was not larceny, whatever else it may have been. Conviction quashed. 9 1854. REGINA V. WATTS. w. was in- To the Justices of either Bench and the Barons of Bteaiing'a ^^ Exchequer, sitting for the consideration of Crown piece of cases reserved under the 11 & 12 Yict., c. 78. The paper which ■ • r i ^^ . the evidence Opinion of the Court is requested on the following proved was . a written ^-aoc . agreement, but unstamped, to build certain cottages, and it was proved that work was still going on under the agreement at the time it was taken. HeM (Parke B. dissentiente), that this being a chose in action was not the subject of larceny. CROWN CASES RESERVED, 327 The prisoner, William Mote Watts, was indicted 1854. at the Quarter Sessioiis for the North Riding of York- watts' shire, on the 28th June 1853, for stealing, on the 3rd ^^^*'' of May 1853, " a piece of paper, the property of the prosecutor, Francis Pattison," and was convicted. The piece of paper found to have been stolen had written upon it, when taken by the prisoner as alleged in the indictment, an agreement between the prose- cutor and the prisoner, signed by each of them. The agreement could not be produced, but secondary evi- dence of it was received, from which it appeared that the prisoner contracted thereby to build two cottages for the prosecutor for a sum specified, according to certain plans and specifications, and the latter agreed to pay two instalments, being part of the price agreed on, at certain stages of the work, and the remainder on completion ; and it was stipulated that any alter- ations that might take place during the progress of the buildings should not affect the contract, but should be decided upon by the employer and employed pre- vious to such alterations taking place. Under this instrument the work was commenced and continued. At the time when it was stolen by the prisoner, as alleged, the work was going on under it, nevertheless it was proved at the trial that when the agreement was stolen the prisoner had been paid all the money which he was entitled to under it, although there was money owing to him for extras and alterations. The agreement was unstamped. The Counsel for the prisoner objected, at the close of the case for the prosecution, that from the evidence it was clear that at the time the piece of paper referred* to in the indictment was taken by prisoner, it was in reality a subsisting valid agreement, and therefore not 328 CROWN CASES RESERVED. 1854. the subject of larceny (as a piece of paper only) at Watts' conamon law. Case. The question for the opinion of the Court is, whether, under the circumstances above stated, the prisoner could be lawfully convicted of feloniously stealing a piece of paper as charged in the indictment. No judgment was passed on the prisoner, and he was discharged on recognizance of bail, to appear and receive judgment when required. James Pulleine, Chairman. The foregoing case having been ordered to be amended, so as to disclose whether the agreement referred to therein required a stamp, and whether the same was available as an agreement without a stamp. It is, therefore, now stated that the document in question being an agreement, the matter whereof was of the value of twenty pounds, or upwards, by law required a stamp, but that as between the parties thereto, it would be available as an agreement with- out a stamp, but no evidence was given at the trial on either point. James Pulleine, Chairman. Case as Amended. This case having been ordered to be amended so as to disclose whether the agreement referred to therein required a stamp, and whether the same was available as an agreement without a stamp. It is, therefore, now stated that the document in question being an agreement, the matter whereof was of the value of twenty pounds, or upwards, by law required a stamp, but no evidence, was given upon the trial on either point. James Pulleine, Chairman. CROWN CASES RESERVED. 329 This case came on for argument on the 12th of 1854. November 1853, when it was sent back to the learned Watts' Chairman of Quarter Sessions for amendment. It ^^^^' agqjn came on for argument on the 21st of January 1854, before Jbrvis C. J., Parke B., Anderson B., WiGHTMAN J., and Williams J. ; and the learned Judges differing in opinion, it was by direction of the Court re-argued on the 4th of February 1854, before Lord Campbell C. J., Parke B,, Alderson B., Coleridge J., Maule J., Wightman J., Cress- well J., Platt B., Williams J., Martin B., and Crompton J. Bliss Q. C. (with him Simpson) for the prisoner. It is submitted that the paper, the subject-matter of the charge in the indictment, was a chose in action, and so was not the subject of larceny. Supposing the document to have been stamped there would have been no difficulty in the case; and the question for the consideration of the Court is, whether the fact of it being unstamped makes any difference. It is sub- mitted it does not. If the document had been stamped it would have been a chose in action, and so good evidence of the same. The agreement was ten- dered, not for the purpose of making it available as an agreement, but in order that the Court might see that it was an unstamped agreement, and so to form a conclusion as to the effect of other evidence. It is contended that, although unstamped, it was good evi- dence of what it really was — namely, an unstamped agreement. Though secondary evidence was given, substantially it was the same as if the agreement had been produced, the loss of it having been proved. Lord Campbell C. J. — There is no occasion to labour that. Bliss. Supposing the Court to look at the docu- ment it ascertains the nature of the contract between 330 CROWN CASES RESERVED. 1854. the parties. Reid v. Dear, 7 B. & C. 261. An -yyr^^g, agreement unstamped is valuable as a chose in action, Case. though a disability may arise at the time of trial if it be not stamped. Nevertheless, it remains a chose in action. It has been held that the giving up an unstamped agreement is a good consideration for a promise. Haigh v. Brookes, 10 A. & E. 309. There is a distinction between instruments void for want of a stamp, and instruments available as choses in action when duly stamped. Jackson v. Warren, 7 T. R. 121. Mann y. Luck, 10 B. & C. 877. R. V. Bishop of Chester, Stra. 824. Lazarus v. Cowie, 2 Q. B. 459. Bradley v. Barnsley, 14 M. & N. 873. Maule J. — Supposing a declaration on an agree- ment to which you plead no stamp, and there is a demurrer thereto, surely the plaintiff would recover. Bliss. Yes, the document might be stamped, and for that reason the plea would be bad. Indeed that was the effect of Lazarus v. Cowie, and Bradley v. Barnsley. The case oi Brewer v. Palmer, reported in Espinasse, 213, may be cited. Alderson B. — Is not the true reason why a chose in action is not the subject of larceny this, because it is evidence of a right ; and that you cannot steal a man's right ? Lord Campbell C. J. — If it were evidence of a right at the time of the alleged larceny, cadit questio. The contention, however, of the other side is that it was not. When the agreement be reduced into writ- ing you cannot give parol evidence of it. The only evidence would be the unstamped paper which would be inadmissible. Price, for the Crown. It is submitted that this agreement was not a chose in action. Every thing had been paid that was due upon it. It resembled a CROWN CASES RESERVED. 331 note which has been satisfied, and which then is not 1854. a vahiable security. Watts' WiGHTMAN J. — If you look, you wiU see there was Case. money owing for extras. Martin B. — Suppose an action to be brought for not building according to the specifications ? Crompton J. — The work was going on. Maule J. — You say that there is no subsisting agreement, therefore no chose in action, therefore the paper is not incidental to a chose in action. In that view of the case, a lease for lives, after dropping of the lives,, would be the subject of larceny. Price. Upon the authority of Jardine v. Payne, (1 B. & Ad, 663) at Nisi Prius, the want of a stamp would render the paper not a chose in action. The Courts will not treat an unstamped agreement as an available security. The words valuable securities are used in the statute. Upon an indictment for stealing a valuable security, the mere production of the paper, without being stamped, would not prove the offence, and it makes no diflFerence that it may be stamped upon the payment of a penalty, (J?, v. Hart, 6 C, & P, 106. Wysses case, 1 Moo. C. C. 216. B. v. Perry, 1 C, & K. 725.) Assuming this to be a chose in action, I should still submit that the prisoner was properly convicted for stealing a piece of paper, upon the authority of a case in the Year Books, 10 Ed. 4, 49th H. 6. P. S. 9, 10. 1 Hale, P. C. 513. The reason why choses in action are said not to be the subjects of larceny, may be, that choses in action cannot be valued, and under the old law felony could not be committed unless upon something of the value of twelve pence. Maule J. — Can there be larceny of title deeds? Price. When they savour of the realty as in the case of a box of charters, perhaps not. In the case of Case. 332 CROWN CASES RESERVED. 1854. Rex v. Walker (Ry. & Moo. 155), records are de- Watts' scribed in an indictment as parchments. In this case, the prosecutor proved the thing stolen as laid, namely, a piece of paper, and the evidence proved it to be nothing else. Lord Campbell C. J I think that the prisoner could not, under the circumstances, be indicted for stealing a piece of paper. If the agreement had been stamped, it seems to be allowed, notwithstanding the ingenious argument of Mr. Price, that an indictment for stealing a piece of paper could not be supported ; because then it would be a chose in action, and by the common law, larceny cannot be committed of a chose in action. Strictly speaking, the instrument is cer- tainly not a chose in action, but evidence of it, and the reason of the common law rule seems to be, that stealing the evidence of the right does not interfere with the right itself, jus non in tabulis. At all events, the common law is clear that for a chose in action, larceny cannot be supported ; and the Legislature has repeatedly recognised that rule by making special provision with regard to instruments, which are choses in action, and of which, but for those enactments, lar- ceny could not be committed. As to this not being a chose in action, because all that was due had been paid upon it, it appears that the agreement is still ex- ecutory, and might be used by either side to prove their right. Then comes the objection, as to its not being stamped ; but though it is not stamped, I am of opinion that it is an agreement. The distinction is between instruments, which without a stamp are wholly void, and those which may be rendered avail- able at any moment by having a stamp impressed upon them. There are many cases in which an un- stamped agreement is considered evidence of a right. When the question arises at Nisi Prius, as soon as it CROWN CASES RESERVED. 333 appears that the agreement was reduced into writing, 1854. parol evidence is excluded, because the written instru- ~watts^ ment is the proper evidence ; and Bradley v, Barnsley, Case. (14 M. & W. 373 ), is strong to shew that the Court con- ^ siders an unstamped agreement evidence of a right. To an action on an agreement a plea that it was not stamped is clearly bad ; for the agreement may be stamped even pending the trial, and may then be given in evidence, as the stamping reflects back to the period of the making of the instrument. I agree that we must look at the state of the instrument at the time of the larceny committed; but it then had a potentiality of being rendered available, and it was evidence of an agreement ; it was therefore evidence of a chose in action, and not the subject of larceny. Parke B. — I am of opinion that the conviction is right. There is no doubt that at common law larceny cannot be committed of any instrument which is the evidence of a chose in action ; but I think that when this instrument was stolen it was not evidence of a chose in action. Being unstamped it was not available either in law or in equity, and by the operation of the Stamp Act, and could not be used for the purpose of shewing a right. It was a piece of paper ; and I differ from Lord Campbell, in thinking that the potentiality of converting a chattel into evidence of a chose of action is sufficient to prevent it from being the subject of larceny. Where a plaintiff is prevented from giving parol evidence of a written agreement, it is because he had the power of giving better evidence of it by getting the instrument stamped, and if he does not get it stamped, it is his own fault. If the instrument is lost and he cannot get it stamped, then he may give parol evidence of it. In the present case there- fore I think that that which was stolen was merely a piece of paper capable of being converted, but not yet 334 CROWN CASES RESERVED. 1854. actually converted into a valid agreement or the Watts' evidence of an agreement ; and it is solely as evidence Case. of an agreement that the common law would prevent it from being the subject of larceny. Aldersow B. — I agree with Lord Campbell that this was an agreement at the time it was stolen. If the writing only becomes an agreement at the time when it is stamped, how is it that you may declare upon an unstamped agreement? If the agreement only dates from the stamping, the cause of action does not arise until the time of stamping, and therefore subsequently to the declaration. This seems to prove that the thing has existence as an agreement, though without a stamp it is not admissible in evidence. The reason why title deeds and choses in action are not the subject of larceny, is because the parchment is evidence of the title to land, and the written paper is evidence of a right ; and though the instrument is stolen, the right remains the same. It has, therefore, no existence in point of law as a piece of paper or parchment merely, but is part of the right or title ; and the extent to which this is carried appears from the passage in Lord Coke, in which even the box containing the charters is treated as part of the title also. Coleridge J, — I concur with Lord Campbell and my Brother Aldersom. It is admitted that if this agreement had been stamped, it would not have supported a charge of stealing a piece of paper, a higher character having been given to it, and its character as a piece of a paper having been thereby absorbed ; and though unstamped, I think that is still the case. If the objection was taken at Nisi Prius the Judge would look at the paper to see what its character was ; it would then appear to have written on it an agreement ; and but for the Stamp CROWN CASES RESERVED. 335 Act it would be the evidence, and the only evidence 1854. of the agreement ; and even though rendered inad- ""wItts^ missible by that act, it has the effect of excluding all Case, parol evidence of that contract. It is true that it is not in a condition in which it can be effectually sued upon, but it is capable of being rendered complete as evidence by being stamped, and it would not acquire any new character by the stamping ; it would still be the same evidence of a chose in action, rendered admissible in evidence by reason of the stamp. As soon as the instrument is signed it becomes an agree- ment, and it is only because the Stamp Laws interfere that it is prevented from being used in evidence. The point is extremely subtle ; and one regrets that the fate of parties in a Court of justice should depend upon distinctions so nice, but upon the best conside- ration which I can give to the case, it seems to me that the conviction is wrong. Maule J I am of the same opinion. I think — indeed every body thinks — that this is an unstamped agreement; and if it is an agreement it is not the subject of larceny. When one speaks of a piece of paper as being an agreement, it means that the paper is evidence of a right, and as a right cannot be the subject of larceny, neither is the paper which is evi- dence of it. WiGHTMAN J. and Cresswell J. concurred. Platt B. — I also am of the same opinion. If an action were brought upon this instrument, the de- claration and all the pleadings would describe it as an agreement, and it becomes so in my opinion as soon as it is signed by both parties, though not avail- able in evidence without the impression of a stamp. The mode of taking the objection at Nisi Prius proves the same thing. The witness is asked whether the agreement was not in writing ; and when he 336 CROWN CASES RESERVED. • 1854-. answers, " Yes," and the instrument is produced, the Watts' Judge looks at it, and finding it to be an agreement. Case. because upon no other ground could he do so, rejects it for want of a stamp. It would surely be strange to hold that it was no agreement until it was stamped, when the necessity for a stamp arises from its being an agreement. According to that argument, if the instrument is stamped the prisoner must be acquitted ; but if not stamped, convicted ; but it seems to me that that would be to bring a man within the reach of the criminal law by a side wind, and a degree of subtilty, consistent neither with law or justice. Williams J., Martin B., and Crompton J., con- curred. Conviction reversed. * CROWN CASES RESERVED. 337 ^^ REGINA «. WILLIAM CARLISLE and 1854. WILLIAM BROWN. The following case was stated by Mr. Justice indictment r^ alleged that CrESSWELL. S. g^old B. a The defendants were tried before me at the last mare for 39;.; _. , , 1 /• 11 • • 1- ^"^^ while Liverpool assizes on the lollowing indictment : — the price was Lancashire, to wit.J The jurors for our lady the and^^'con- Queen upon their oath present that before the time of spired by the committing of the offences hereinafter mentioned, fraudulent to wit, on the 23rd day of December^ in the year of tf^ns't^Ts*" our Lord, 1853, one Thomas Sibson sold to William that the mare Brown a certain mare at and for the price, to wit, of and that B. 39?., to be paid for the said mare by the said William Jf/gS^to" Brown to the said Thomas SibsOn, which said price, induce S. to at the time of the committing of the offences herein- sum^of* after mentioned was still due and unpaid, and the ™oney"> r payment for jurors aforesaid, upon their oath aforesaid, do further the said mare present that William Carlisle and the said William agreed to pay Brown, well knowing: all and several the premises, *• ^""^ ^^% " ' same, and but contriving and intending to cheat and defraud thereby to the said Thomas Sibson, did, on the day and year iH^olthe" aforesaid, unlawfully conspire, combine, confederate, price, it was and agree together, by false and fraudulent represen- evidence tations to the said Thomas Sibson that the said mare g^f^ the'mare to B. as alleged, and had agreed to trust him for the price. That B. afterwards, together with C., falsely represented to S. that the mare was unsound of her wind, and that she had been examined by a veterinary surgeon, who had pronounced her a roarer. B. afterwards told 8. that in consequence of the unsoundness he had sold the mare for 271. only (which was false), and persuaded 5. to receive that sum in satisfaction of his claim, but no receipt or other discharge was given. HeM, that, although the acceptance of the 271. could not be pleaded in satisfaction of the larger sum, the indictment was sustainable, and that the facts proved in evidence did sastain it. VOL. li B B 338 CROWN CASES RESERVED. 1854. was unsound of her wind, and that she had been Carlisle's examined by a veterinary surgeon, who had pro- Case, nounced her a roarer, and that he, the said William Brown, had sold her for 271, to induce and persuade the said Thomas Sibson to accept and receive from the said William Brown a much less sum of money in payment for the said mare than the said William Brown had agreed to pay the said Thomas Sibson for the same, and thereby to cheat and defraud the said Thomas Sibson of a large part, to wit, 121. of the price so agreed by the said William Brown, to be paid to the said Thomas Sibson for the said mare, to the great damage of the said Thomas Sibson, and against the peace of our lady the Queen." It was proved, as alleged, that Thomas Sibson had sold a mare to Brown, that Brown stated that he was about to take her to Preston fair, and Sibson agreed to trust him for the price till after the fair. The de- fendants afterwards conspired to send a false account of the mare to Sibson, and thereby to get him to forego part of the agreed price, and in pursuance of the con- spiracy Carlisle wrote and sent the following letter to Sibson (a). " Preston, Jay 2th, 54. "Mr. Simpson, Sir, The Mare I Bought From You is unsound of hir Wind She as been examined By a Veterinary Surgeon and he as pronounced hir a roar. On account of hir being Slope when I Bought hir I could not examming hir as to her Wind. I nough request an answer by return of post what must be don with {a) This letter was set out in the case, and is here set out verbatim et literatim. — H. R. D. CROWN CASES RESERVED. 339 hir. I could have sold the Mare well head it not been 1854, for that Defect. Carlisle's N.B. Direct to William Brown Case. White Horse Inn Preston I am yours respectfully Wm. Brown." Address of Envelope " Mr. Sibson Grinsdal By Carlisle in hast." In consequence of the letter Sibson went to Preston and saw Carlisle, who stated that he had examined the mare, and that she was unsound, which he knew to be false. Sibson afterwards saw Brown, who told him that he had sold the mare for 271. only, (which was false), and persuaded Sibson to receive that sum in satisfaction of his claim, but no receipt or other dis- charge was given. For the defendants it was con- tended that no indictable offence had been proved or charged, for that the facts alleged in the indictment, and given in evidence, did not, and could not, alter the position of Sibson, inasmuch as the payment of the smaller sum was no satisfaction of the larger sum for which he had sold the mare to Brown, and conse- quently he might afterwards enforce payment of the residue, and could not be thereby cheated of the dif- ference. The jury found the defendants guilty, but, having doubts upon the point raised, I discharged them on bail, and request the opinion of this Court as to the legality of the conviction. C. Cresswell. On 2&th April, 1854, this case was argued before Pollock C. B., Parke B., Cresswell J., Erle J., and Crompton J. No Counsel appeared for the Crown. B B 2 340 CROWN CASES RESERVED. 1854. WMgham, for the prisoners. There really is no Carlisle's ofFence whatever charged in this indictment, or ^*^®" proved by the evidence given at the trial. In order to constitute a conspiracy there must be either a com- bination to effect some illegal object, by lawful means, or by illegal means to eflfect a lawful or unlawful object. The indictment in this case alleges that the prisoners did unlawfully " conspire, &,c., by false and fraudulent representations to the said Thomas Sibson, that the said mare was unsound of her wind, and that she had been examined by a veterinary surgeon, who had pronounced her a roarer; and that he the said William Brown had sold her for 271. ; to induce and persuade the said Thomas Sibson to accept and receive from the said William Brown a much less sum of money in payment for the said mare than the said William Brown had agreed to pay the said Thomas Sibson for the same." Thus the object alleged is to persuade Sibson to accept 271. in discharge of 39/. The words at the end of the indictment, " and thereby to cheat and defraud the said Thomas Sibson of a large part, to wit 121., of the price so agreed by the said William Brown to be paid to the said Thomas Sibson for the said mare," are merely a conclusion drawn by the pleader, and not properly drawn, inas- much as that could not be the effect of the transaction. The case of Cumber v. Wayne, 1 Smith's L. C. 146, was cited at the trial, and is conclusive to shew that a creditor cannot bind himself by a simple agreement to accept a smaller sum in lieu of an ascertained debt of a larger amount. I contend, on the authority of this decision which is recognised law, and on the facts of this case, that the indictment, in thus alleging the object of the conspiracy, is in fact charging the prisoners with intending to effect a thing which could not be; for, notwithstanding the receipt of a lesser Case. CROWN CASES RESERVED. 341 sum, the debt due to Sibson remained in law pre- 1854. cisely the same as if no representations had been Carlisle's made by the prisoners. Pollock C. B. — As to the proposition contained in Cumber v. Wayne, there can be no question : but suppbse a release by deed under seal was given, would not that be valid ? Whigham. There was no release in this case, nor was there any attempt to procure one charged or proved. Erle J. — Suppose persons were to conspire, by felse representations, to obtain a gift ? Parke B. — Yes. But that would be inducing a man to part with his property in such a way that when he had once done it he could not get it back again. Pollock C. B. — I do not see the force of the argu- ment, that what has been done is not indictable, because it did not effect the object. Erle J. — It is an indictable offence to conspire by unlawful means to accomplish a lawful object. There are abundance of authorities to support that proposi- tion ; and are not the false representations in the present case the unlawful means? Whigham. It is submitted that in the present case there is nothing more than an attempt, by a purchaser, to obtain an abatement of price, by a representation that he has made a bad bargain. The mare was, in fact, sold by the prisoner Brown for 32/., so that he had actually sustained a loss by the transaction ; and the only false representation was, that the loss was larger than it really was. Crompton J — I am not aware that there is any case which goes so far as expressly to decide that a conspiracy to misrepresent the value of goods, as between buyer and seller, would not be an indictable offence. Suppose, in the present case, the purchase 342 CROWN CASES RESERVED. 1854. money for the mare had been paid, and this was Caelislk's ^ conspiracy to get it back ? Case. Whigham. That would be a fresh transaction. Here the object never could be effected, and therefore it is a conspiracy to do something whfch is legally impossible. Pollock C. B. — Would not the same remark apply to all cases were there is fraud ? Fraud vitiates the transaction, and in that sense nothing can be legally effected. Cresswell J. — Suppose a person sends goods to a commission agent, and it is falsely pretended that the goods produced a certain sum, when, in fact, they produced a great deal more. Erle J. — In the case of Reg'ma v. Kenrick, 5 Q. B. Rep. 49, it was held, that an indictment for conspiracy was sustained by proof that two persons conspired to make a representation, knowing it to be false, that certain horses were the property of a private person and not of a horse dealer, thereby inducing a third person to buy them. Whigham. The present case is more like the case of Bex V. Pywell, 1 Stark. N. P. C. 402, in which it was held that an indictment will not lie for a con- spiracy to cheat and defraud by selling an unsound horse. Erle J. — I was Counsel in Regina v. Kenrick. The case of Rex v. Pi/well was the foundation of the argument in favour of the prisoner in that case, and I very much relied upon it ; but the learned Judges did not sanction its authority (a). (a) In R. V. Rowlands, 2 Den. says: In JRea; v. PyiceH the acquittal C. C. R. 386, Erle J. says, that was directed, not because an action the decision in Rex v. Pywell and might have been brought on the others was overruled by R. v. Ken- warranty, but because one of the rick. Lord Dmman, in delivering two defendants, though acting in the considered judgment of the. the sale, was not shewn to have Court in R. v. Kenrick, 5 Q. B. 62, been aware that a fraud was prac- CROWN CASES RESERVED, 343 Whigham. The case of Rex v. Turner and Others, ISS*. 13 East, 228 (a), bears upon this point. In that case Carlisle's' it was held that an indictment would not lie for a *-'*^*- conspiracy to commit a civil trespass, by agreeing to go into a preserve for hares, the property of another, for the purpose of snaring them, though alleged to have been done in the night by the defendants armed with offensive weapons for the purpose of opposing resistance to any attempt to apprehend or obstruct them ; and in that case Lord Ellenborough C. J. says, " I should be sorry that the cases of conspiracy against individuals, which have gone far enough, should be pushed still further." Pollock C. B. — We are of opinion that this indict- ment is sustainable and that the facts given in evidence do sustain it. The substance of the charge is that the defendants conspired to use unlawful means, namely false representations, to induce the prosecutor to forego a part of his claim ; and I cannot see the force of the argument, that, because the prisoners did not by means of their false representations alter the right of the prosecutor to his full claim, the indictment is not sus- tainble, since in no case where a change is made in the possession of a chattel through a fraud is the pro- perty altered. It is not necessary that the fraud should be successful. The offence here charged and proved comes within the legal definition of a conspiracy and the defendants must take the consequence. The other learned Judges concurred. Conviction affirmed. tised. Lord Ellenborough said, (a) This case is overruled by that " no indictment in a case like Regma v. Rowlands, 2 Den. C. C. R. this could be maintained without 388. See also R. v. Kenrick, 3 evidence of concert between the Q. B. 62. parties to effectuate a fraud." 344 CROWN CASES RESERVED. 1854. REGINA, on the prosecution of the Inhabitants of the County of Worcester, against THOMAS HARRIS. The following case was stated by the Chairman of the General Quarter Sessions for the county of Worcester. Thomas Harris was tried at the Epiphany Sessions, H. was tried and convicted at the ses- sions for the county of W. on an indict- ing him with 1854, for the county of Worcester, upon an indictment cMtair'*"^ charging him, as servant to the inhabitants of the moneys as county of Worcester, with embezzling three sums of' servant to the inhabi- tants of that county. It appeared that H. was the miller of a mill in the gaol of the county, that the ofifence, if any, took place entirely within the gaol, which is situate within the county of the city of W., more than 500 yards from the county of W., and that the county of the city of W. has a separate jurisdiction and its own Recorder and Quarter Sessions. It was the duty of H. to direct persons bringing grain to be ground at the mill to obtain at the porter's lodge a ticket, specifying the quantity of grain brought. The ticket was his order for receiving the grain, and it was his duty to receive the grain with the ticket, to grind it, to receive the money for the grinding, and to account for the money to the governor of the gaol, who accounted to the county treasurer. H. had no right to grind any grain at the mill for his private benefit, nor without a ticket as above mentioned. H. was appointed to his situation by the magistrates of the county at a weekly salary, which was paid to him out of the county rates by the governor of the gaol, who received the money from the county treasurer. H. received and ground grain without a ticket, and without directing the persons bringing the grain to obtain one. He received the money for the grinding, and did not account for it to the governor of the gaol, but applied it to his own use. Held, that H. could not be convicted of embez- zlement, 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. Qumre, whether the Court of Quarter Sessions had jurisdiction to try the case ? Quesre, whether H. was rightly charged as servant of the inhabitants of the county ? Semble, per Cbesswbll J., that after verdict this Court has 'no power to amend q count so as to make a jury party to the finding, CROWN CASES RESERVED. 345 money. There were other counts in which he was 1854. described as servant to the clerk of the peace for the regina, county of PForccs/er and others. He was found guilty and h^rrjs sentenced to twelve months' imprisonment, but execu- tion was respited until the opinion of her Majesty's Justices and Barons could be obtained upon the following case. Hams was the miller of a mill in the gaol of the county of Worcester. It was the duty of the prisoner to direct any person bringing grain to be ground at the mill to obtain at the porter's lodge at the gaol a ticket specifying the quantity of grain brought. The ticket was his order for receiving the grain. It was then the duty of the prisoner to receive the grain with the ticket, to grind the grain at the mill, to receive the money for the grinding from the person so bring- ing the grain with the ticket and to account to the governor of the gaol for the money so received. The governor accounted for the same to Sir Edmund Lechmere, the treasurer of the county rates. It was a breach of the prisoner's duty to receive or grind grain without such a ticket as above mentioned, but he had no right to grind any grain at the mill for his private • benefit. The prisoner was appointed to his situation by the magistrates of the county of Worcester, myself and others, at a fixed weekly salary which was paid to him out of the county rates by the governor of the gaol who received the money for that purpose from Sir Edmund Lechmere. The monies which the prisoner misappropriated he received from persons for grinding their grain at the mill, but none of these persons had obtained a ticket as above mentioned from the porter's lodge, nor had they been directed by the prisoner to obtain such ticket, nor was there in fact any ticket at all. The offence, if any, took place entirely in the gaol for the county of Worcester, which is situate within Harbis. 346 CROWN CASES RESERVED. 1854. the county of the city of Worcester, more than five jj^^jj^^ hundred yards from the county of Worcester. The »• county of the city of Worcester has a separate juris- diction and its own ^Recorder and Quarter Sessions. It was objected on the part of the prisoner that the Court of Quarter Sessions for the county had no jurisdiction to try the case ; that the prisoner was not a servant within the meaning of the Embezzlement Statutes to either the inhabitants of the county or to the clerk of the peace and others ; that the money he received he did not receive by virtue of his employ- ment, nor for or on account of his masters, so as to constitute the offence of embezzlement. It was agreed that any amendment in the indict- ment which the facts in evidence might warrant, and which the Court of Quarter Sessions had the power of making, should be considered by the Court of Criminal Appeal as made. I have to request the opinion of the Court of Criminal Appeal whether the conviction can be supported ? John S. Pakington, Chairman. This case was argued on 29th April 1854, before Pollock C. B., Parke B., Cresswell J., Erle J., and Crompton J. Huddleston appeared for the prisoner, but the Court called upon Selfe, (who appeared for the Crown), to support the conviction. Parke B. — What do you say as to the venue ? Selfe. That depends upon the construction which your Lordships may put on the 48th section of 4 Geo. 4, c. 64(a). The words of that section are as large as (a) This section enacts " That or division, county of a city or every gaol, house of correction, or county of a town, or for any town, otherprison, for any county, tiding liberty, soke or place, not being a CROWN CASES RESERVED. 347 they can be. I can suggest no argument upon them, but I submit that they are full, clear, and precise. The second objection is, that the prisoner was not a servant, within the meaning of the Embezzlement Statutes, either to the inhabitants of the county, or to the clerk of the peace and others. The statute 7 Geo. 4, c. 64, s. 15, provides that property belong- ing to counties, &c., may in indictments be stated to belong to the inhabitants of such county, &c., and that it shall not be necessary to specify the names of any of such inhabitants. But if any diflBculty should arise on this point, the case provides that any amend- ment in the indictment which the facts in evidence warrant, and which the Court below had the power of making, shall be considered by this Court as made. Cresswell J. — But can you alter an indictment after the verdict is found, and so make the jury a party to the finding ? 1854. county, but having an exclusive jurisdiction for the trial of felonies or misdemeanors committed there- in, which is now built, or shall hereafter be built, together with the ground whereon the same shall stand, and every court, yard, build- ing and appurtenance thereunto belonging, with every addition that shall hereafter be made thereto, which said gaoj, house of correc- tion or other prison, court, yard, building, appurtenance or addition, is, or shall be situate within the limits of any other county, riding, or division, county of a city, county of a town, or of any other town, liberty, soke or place, not being a county, but having an exclusive jurisdiction for the trial of felonies or misdemeanors committed there- in, shall be deemed and taken to be part of the county riding or division, county of a city, county Regika Harris. of a town, or of the town, liberty, soke or place for which the same shall be used as a gaol, house of correction or other prison, so long as the same shall be so used and no longer ; and the justices of the peace, mayors, jurats, coroners, con- stables and other officers of such county, riding or division, county of a city, county of a town, or of such town, liberty, soke or place, for which the same shall be used as a gaol, bouse of correction or other prison, shall, during the time that the same shall be so used, have as full power and authority therein as they would have if the same was not situate within the limits of such other county, riding or division, county of a city, county of a town, or of such town, liberty, soke or place ; any charter, law, or usage to the contrary thereof in anywise notwithstanding." V. Harris 348 CROWN CASES RESERVED, 1854. . Selfe. It is submitted that the prisoner is properly regina charged to be the servant of the inhabitants of the county. In B. v. Callahan, 8 C. & P. 154, on an indictment for embezzlement, a collector of poor and other rates in the parish of Saint Paul, Covent Garden, was held to be rightly described under the Act 10 Geo. 4, c. 68, as servant to the committee of management of the affairs of that parish, though he was elected by the vestrymen of the parish. So here, although the prisoner was appointed to his situation by the magistrates of the county, he is, in fact, the servant of the inhabitants who pay his salary, by the hand of the treasurer, out of the county rate. The money he received for grinding corn it was his duty to pay over to the governor of the gaol, whose duty it then became to pay it to the treasurer for the benefit of the inhabitants. A slighter employment than this would make him the servant of the inhabitants. In R. v, Spencer, R. & R. 299, it is said that a man is sufficiently a servant within the 39 Geo. 3, c. 85, although only occasionally employed when he has nothing else to do ; and that it is sufficient if he was employed to receive the money which he embezzled, though receiving the money was not within his usual employment, and although it was the only instance in which he was so employed. Pollock C. B. — Here the prisoner was appointed by one set of persons to do duty for another set of persons, and was paid by a third. Selfe. The inhabitants, as ratepayers, do really pay, although the hand by which the money is paid is that of the treasurer. In R. v. Jenson, 1 Moo. C. C. 434, it was held that a clerk of a savings bank was properly described as clerk to the trustees, though elected by the managers. Here the county justices are the managers of the gaol, and they appoint the V. Harris. CROWN CASES RESERVED. 3^ prisoner; but he may, nevertheless, be well held 1854. to be the servant of the inhabitants by whom he is in Regina fact paid. Cresswell J. — The magistrates appoint the prisoner, and they alone can discharge him. The inhabitants have neither the power to appoint him, the power to fix his salary, nor the power to dismiss him. Selfe. The justices act as the agents of the inha- bitants in making the appointment ; but if your Lord- ships shall think that the facts do not make the prisoner the servant of the inhabitants, the counts might be altered so as to make him the servant of the treasurer or the servant of the justices. I now come to the third objection, that the prisoner did not receive the money by virtue of his employ- ment, nor for or on account of his masters, so as to constitute the offence of embezzlement, — ^it being con- tended on the trial by the learned Counsel for the prisoner, that the money was not received by virtue of the employment, because the prisoner had neglected to require the persons who brought the grain to obtain a ticket specifying the quantity of grain brought, and that that being his duty, and he neglecting the per- formance of it, he was not acting within the scope of his employment. The answer to this objection is, that he was employed as a miller for his masters, to grind the corn brought to be ground by strangers, and he fully performed that duty in every respect, except in directing the parties to get a ticket from the porter. Parke B The proper question is, whether the omission to require a ticket was a mere neglect of duty, or whether it shewed an intention on his part to use the mill on his own account, and not for bis employers. Selfe. Surely such an omission cannot discharge him from the liability to account for the money; that 150 CROWN CASES RESERVED. 1854. would be to allow the prisoner to exonerate himself regina from responsibility to his employers for one breach of "• duty, because, by neglecting to procure a ticket, he committed another breach of duty. He had no right to grind any corn for his own benefit, and it is sub- mitted that, although when he received the grain he neglected to require the ticket, still the corn must be taken to be ground for his employers. Cresswell J. — The case finds that a ticket was the prisoner's order for receiving the grain. He ought not to have received the grain unless he got a ticket, nor had he any power to make his masters responsible for any flour as to which he did not receive a ticket. Selfe. There is not a suggestion that the persons who brought the grain knew anything about the ticket, and I apprehend that the masters would be respon- sible. The receipt of the ticket by the prisoner was merely a matter of private arrangement between the master and the servant; and I submit that if grain was brought to be ground, and the servant received it with- out a ticket, the masters would be responsible. It is true that the duty of the prisoner to tell the persons who brought the grain to procure a ticket, was ante- cedent to his duty to receive the grain ; but he ought not to escape from responsibility because he chooses to neglect part of his master's orders. Pollock C. B.— That is strong evidence of bad conduct of some sort, and it may be of criminal con- duct; but is it such as to constitute embezzlement? If a workman employed in a blacksmith's shop, who has engaged to give his master his whole services, is asked by some one to do for him a little work in the shop which only requires labour, and he does the work, and says to the man pay me 2d. for the job, and say nothing about it, the workman could not be indicted for embezzling the 2d., though he might be guilty of CROWN CASES RESERVED. 351 a breach of his contract, which was to give his master 1854. his entire labour. Rbgina Selfe. It is true that in the case o{ Rexv. Snowley, „ »■ OARRIS 4C. & P. 390, which will be relied on by the other side, there seems some authority for holding that where a servant violates his master's orders in one respect, he may thereby free himself from the responsibility of the violation of them in another. There A. was employed to lead a stallion, and he was to charge 30s. per mare, and not take less than 20s. He received the sum of 6s. in one instance for which he did not account, and it was held not to be embezzlement, because the money was not received by virtue of his employment. But that doctrine seems to have been questioned by Patteson J. in R. v. Aslon, 2 C. & K. 413. There a brewer's drayman had orders to sell his master's beer at fixed prices only, and sold it at an under price, and he was held to be guilty of embezzlement. There was in that case the additional fact that, the master having heard of the sale at an under price, had, unknown to the prisoner, authorized the purchaser to pay the pri- soner the amount; but Patteson J., (after conferring with Parke B.), said he had great doubts as to the authority of R. v. Snowley. Parke B.— Suppose the prisoner had sent to a friend and said, I will grind your corn at a cheaper rate than the regular price, the doing so would be a misuse of the power of his masters' mill ; and if his misusing the mill was for his own benefit, how could it be said that he received the money by virtue of his employment? As at present advised, I think I was right in my decision in R. v. Snowley. Selfe. Where a servant is in possession of his mas- ter's property, which he is to use for his master's profit, and he improperly uses it for his own benefit, V. Harris. 352 CROWN CASES RESERVED. 1854. and receives money for that use, it is submitted that regina ^6 is guilty of embezzlement. Pollock C. B We are all of opinion that this conviction cannot be sustained. But the only point on which we give our unanimous opinion is, that, upon the facts stated, it appears that the defendant had no right to receive and grind any corn on behalf of his masters, except such as was brought to him with a ticket. The reasonable conclusion to be drawn from his receiving and grinding the grain without a ticket is, that he intended to make an improper use of the machinery intrusted to him, by using it not for the benefit of his masters, but for the benefit of him- self. We think, therefore, that the money which he received was not received on account of his masters, and that he cannot be said to be guilty of embezzle- ment. The other learned Judges concurred. Conviction quashed. CROWN CASES RESERVED. 353 REGINA V. JOSEPH WHITEMAN and THOMAS 1854. WHITEMAN. The following case was stated by the Chairman of Theprisoners the General Quarter Sessions for the West Riding of undersect.19 the County of York (a). _ te^l'! c"! '0. West Riding of Yorkshire. Be it remembered (the Mali- that, at the Spring General Quarter Sessions of the pa'sTAct)ffor Peace of our Lady the Queen, holden at Pontefract, having felo- •> ' ' ' niously, in and for the West Riding of the county of York, on unlawfully, Monday, the 3rd day of April, in the sixteenth year c,"u"y done of the reign of our Sovereign Lady Victoria, by the damage to Grace of God of the United Kingdom of Great in a hedge, Britain and Ireland Queen, Defender of the Faith, d!,ln^gfniury and in the year of our Lord one thousand eight to the owners hundred and fifty-four, before William Battie Wright- exceeding 51. son, Esquire, chairman, James Armitage lihodes, ^''g^^ed'thar clerk, and others, their fellows, Justices of our said the actual Lady the Queen, assigned to keep the said peace of to the trees^ our said Lady the Queen, in the said riding: and also ^^'^^ to the ■' ' ° ' amount of 1/. only, but that (o) For the reasons given by my Judges ; and I have not thought ngcgggarv to learned predecessor, (see 1 Den. it right to depart from this gene- stub up the C. C. R. Preface, iv.), the cases in ral rule in the present instance, old hedge these Reports are printed in the although much unnecessary matter ?nd replace precise words in which they are has been imported into the case. ''' '^^ ®^" stated for the consideration of the H. R. D. which would be il. \4.s. Upon this evidence the jury found the prisoners guilty. Held, that the conviction was wrong, inasmuch as the injury exceeding il. must be actual injury to the trees, &c., and that proof of consequential injury was insufficient. VOL. I. C C 354 CROWN CASES RESERVED. 1854. to hear and determine divers felonies, trespasses, and White- ^^her misdemeanors, committed within the said MAN'S riding, upon the oath of John Dransfield, Eichard Bayldon Guest, Henry Harvey, Joseph Hall, Peter Lightfoot, Henry Liversedge, Robert Latham, Henry Mann, Edward Stephen Nicholson, Thomas Teale Powell, Richard Pybus, John Birks Pigott, Thomas Simpson, William Wilks Smith, and Isaac Tyson, good and lawful men of the said riding, then and there impanelled, sworn and charged to enquire between our Sovereign Lady the Queen and the body of the said riding, it is presented as fol- lows, to wit:—" The jurors for our Lady the Queen, upon their oath present, that Joseph Whiteman, late of Wakefield, in the West Riding of the county of York, labourer, and Thomas Whiteman, late of the same place, labourer, on the 1st day of March in the 17th year of the reign of our Sovereign Lady Victoria, by the grace of God of the United Kingdom of (jreaf^niamand/re/awrfQueen, Defender of the Faith, with force and arms, at the parish oi Roth- well, in the West Riding of the county of York, two oak trees, one ash tree, one elm tree, and one hundred thorn shrubs, the property of Joseph Charlesworth and others, then and there growing in a certain hedge of the said Joseph Charlesworth and others there situate, (elsewhere than in a park, pleasure ground, garden, orchard, or avenue, or any ground adjoining or be- longing to a dwelling-house), feloniously, unlawfully, and maliciously did damage, thereby then and there doing injury to the said Joseph Charlesworth and others to an amount exceeding the sum of 5/., to wit, to the amount of 51. 14s., 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. And the jurors aforesaid, upon their oath CROWN CASES RESERVED. 355 aforesaid, do further present, that the said Joseph 1854. Whiteman and Thomas Whiteman, afterwards, to wit, ~white^ on the said 1st day of March, in the year aforesaid, man's with force and arms at the parish aforesaid, in the riding aforesaid, parts of divers trees and shrubs, to wit, parts of two oak trees, one ash tree, one elm tree, and one hundred thorn shrubs, the property of the said Joseph Charlesworth and others, then and there growing in a certain hedge of the said Joseph Charles- worth and others, there situate, (elsewhere than in a certain park, pleasure ground, garden, orchard, or avenue, or any ground adjoining or belonging to a dwelling-house), feloniously, unlawfully, and mali- ciously did damage, thereby, then and there doing injury to the said Joseph Charlesworth and others, to an amount exceeding the sum of hi., to wit, to the amount of hi. 14s., 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. — Elsley." At which same Sessions of the Peace, holden at Pontefract aforesaid, in and for the said riding, on the said Monday the 3rd day of April aforesaid, in the year aforesaid, before the justices aforesaid, the said Joseph Whiteman and Thomas Whiteman, in the custody of the keeper of the house of correction kept for the said riding, in their proper persons come, and having heard the said indictment read, say that they are not guilty of the premises in the said indictment alleged, and thereby put themselves upon the country. Where- upon the sheriff of the said county of York is com- manded that he omit not, by reason of any liberty in his bailiwick, but that he cause a jury of twelve good and lawful men thereupon to come before the said justices, by whom the truth of the matter in question would be better known and who have no affinity to c c 2 156 CROWN CASES RESERVED. 1854. the said Joseph Whiteman and Thomas Whiteman, to White- recognize upon their oath whether the said Joseph man's Whiteman and Thomas Whiteman are guilty of the Case. , , ■£ J premises in the indictment aforesaid above specined, or not guilty. And the jurors of the said jury, by the said sheriflp for this purpose impanelled and returned, to wit, Edward Clough, Benjamin War- dingly, John Lee, John Wilton, Thomas Ross, George Pickering, Joseph Plant, John Bramald, Charles Shackleton, Sigsworth Simpson, George Tindall, and Charles Maw, being called, come, and being chosen, tried, and sworn to speak the truth of and concerning the premises aforesaid in the indictment aforesaid above specified, do say upon their oath, that the said Joseph Whiteman and Thomas Whiteman are guilty of the premises aforesaid in the indictment aforesaid above specified ; whereupon it is considered and ad- judged by this Court that the said Joseph Whiteman and Thomas Whiteman be imprisoned in the house of correction kept for the said riding for the space of six calendar months, and kept to hard labour, each pri- soner to be let out on bail on each of them finding two sureties in forty pounds each, until the opinion of the Court above can be obtained on the following case. Charles Turner, a sworn valuer, proved that he had valued the damage done to the trees and hedge at 51. 14s. 66?. He stated it would be necessary to stub up the old hedge, and gave the following particulars of his valuation : — Stubbing ..... Posts and rails to protect new hedge Quickwood setting and cleaning Injury to trees .... £. s. d. 15 3 10 9 6 1 £ 5 14 6 MAN S Case. CROWN CASES RESERVED. 357 He further stated that he did not value the old 1854. hedge, he valued what it would cost to replace it. white- He could not value the old hedge it was so dilapi- dated and burned. The Court directed the jury that this was sufficient evidence of injury done to the amount of 51. and upwards, as charged in the indict- ment. It was objected on the part of the prisoners that as the injury done must amount to .51., and that as it must be injury done in respect of a growing tree, sapling, or underwood, there was no evidence of such injury beyond one pound. Charles Hardy, Chairman. This case was considered on 30th AprU-1854:, by Pollock C. B., Parke B., Cresswell J., Erle J., and Crompton J. Johnson appeared for the prisoner, but he was stopped by the Court, and Hardy, who appeared for the Crown, admitted that he could not support the conviction. Pollock C. B. — It is quite clear that this con- viction must be quashed. There is, it is true, a consequential injury exceeding 51., but that is not sufficient. The other learned Judges concurred. Conviction quashed. 358 CROWN CASES RESERVED. 1854. L-O -V m'/-j'^' REGIN'a v. WILLIAM WALKER. The following Cresswell. Indictment for cutting and Clarkson, with intent to disable W. was in- dicted for cutting and wounding T. C. The 1st count charged the . , . i ti i cutting with to ^o some grievous bodily harm intent to disable. The 2nd with intent to do grievous bodily harm. The 3rd with intent to case was stated by Mr. Justice wounding Thomas 2nd, with intent 3rd, with intent to prevent the lawful apprehension of the prisoner. Thomas Clarkson was a serjeant in the Lancashire constabulary force, and the prisoner a police constable under him. In the evening of the 3rd of January Clarkson went, as was his duty, to the house of the fa'wfui' appre- Prisoner to see that he was correct in the discharge of his duty. The prisoner had some altercation with appre hension of the prisoner. The evidence him, and Clarkson left the house, the prisoner followed ^'"^ * and struck him, and fell when attempting to strike a second time. Clarkson then went away for assistance — returned to the prisoner's house with two police constables. The prisoner was not then at home : they T. C. was a Serjeant in the han- cashire con- stabulary force, and the prisoner a police con- stable under him. On C. going to the prisoner's house to see that he was in the discharge of his duty, an altercation took place, and C. left the house, when the prisoner followed and struck him. C. went for assistance, and returned with two police con- stables. The prisoner was from home, and in two hours they returned and told the prisoner to go with them to the station. The prisoner refused, and on C. attempting to take hold of him, the prisoner struck him upon the head with a clock weight, inflicting the wounds charged in the indictment. On this evidence the jury found the prisoner guilty upon the 3rd count, and negatived the intents charged in the 1st and 2nd counts of the indictment. Held, that the apprehension was not lawful, and therefore the con- viction could not be sustained. CROWN CASES RESERVED. 359 returned again in two hours, and then saw him, and 1854. Clarkson told him that he must go with him to the walker's Newton Station. The prisoner said he would not stir Case. an inch that night. Clarkson attempted to take hold of him, whereupon the prisoner struck him on the head with a clock weight and inflicted a severe wound. The jury found him guilty of wounding to prevent his lawful apprehension, and negatived the other intents charged. Having some doubt whether the appre- hension was lawful I did not pass sentence, and have to request the opinion of this Court as to the propriety of the conviction. The prisoner could not find bail and remained in custody. C. Cresswell. On the 29th April 1854, this case was considered by Pollock C. B., Parke B,, Cresswell J,, Erle J., and Crompton J. No Counsel appeared either for the Crown or for the prisoner. Pollock C. B We are all of opinion that this conviction cannot be sustained. The jury have found the prisoner guilty upon the third count of the indictment which charges that the prisoner committed the assault with intent to prevent his lawful appre- hension. We are of opinion that the apprehension was not lawful. The assault for which the prisoner might have been apprehended was committed at another time and at another place ; there was no continued pursuit of the prisoner, and the interference of the prosecutor was not for the purpose of preventing an aflfray, nor of arresting a person whom he had seen committing an assault. The apprehension, therefore, not being law- ful it follows that the prisoner oould not be convicted of an assault with intent to resist his lawful appre- hension. Parke B. — On the authority of Timothy w Simpson, 360 1854. Walker's Case. CROWN CASES RESERVED. reported in 1 C. M. & R. 757, the officer might arrest if there was danger of an affray being renewed, but that cannot be said to have been so in the present case. Cresswell J., Erle J. and Crompton J. concurred. Conviction quashed. 1854. The prisoner assigned his goods by deed to trus- tees for the benefit of his creditors. No manual possession was taken under the assignment, but the pri- soner re- mained in possession of the goods himself, and while in such possession he removed the goods, intending to deprive the creditors of them. The jury found the prisoner guilty of lar- ceny, and found that the goods were not in the custody of the pri- soner as the agent of the trustees. Held, that the convic- tion was wrong. REG IN A V. DAVID PRATT. The following case was stated by the Recorder of the borough of Birmingham. The prisoner, David Pratt, was tried before me at the last January sessions for the borough of Birming- ham, upon a charge of having feloniously stolen, taken, and carried away, on the 18th day o{ May,m the 16th year of our Sovereign Lady the Queen, one die lathe, the goods of Edward Barker and another ; and, on the 19th day of May, in the same year, ten lathes, the property of the said Edward Barker and another, the goods and chattels of the prosecutors, and was found guilty. The prisoner was a thimble maker and manufac- turer, carrying on his business in two mills, one a thimble mill, and the other a rolling mill, in the borough of ^irmw^Aam; and, before the occurrences hereinafter mentioned, he was the owner and pro^ prietor of the property mentioned in the indictment. On the 14th May 1853, the prisoner, being in pecuniary difficulties, arranged with the prosecutors, Edward Barker, and William Wayte, creditors of the prisoner, and with Mr. Collis, an attorney-at-law, who acted on their behalf, to execute an assignment to trustees for the benefit of his creditors ; and on the 18th May a deed of assignment was executed by him. CROWN CASES RESERVED. 361 whereby the prisoner assigned to the prosecutors as 1854. trustees, for the purposes therein mentioned, certain p^^^^,,g property by the description following : Case. " All and every the engines, lathes, rolls, boilers, furnaces, horses, carts, machinery, tools, and imple- ments of trade, the stock in trade, goods, wares, mer- chandize, household furniture, fixtures, plate, linen, china, books of account, debts, sum and sums of money, and all securities for money, vouchers, and other documents and writings, and all other the per- sonal estate and effects whatsoever and wheresoever, save and except leasehold estates of the said David Pratt, in possession, reversion, remainder, or expec- tancy, together with full and free possession, right, and title of entry, in and to all and every of the mills, works, messuages or tenements, and premises, wherein the said several effects and premises then were, to have and to hold the said engines and other the premises unto the said Edward Barker and Wil- liam Wayte, their executors, administrators, and assigns, absolutely." The deed was executed by the prisoner, in the pre- sence of, and was attested by, James Rous, who was a clerk of Mr. Collis, and who was not an attorney or solicitor. On the 19th May, the said deed was again exe- cuted by the prisoner, in the presence of the said Mr, Collis, and, in all respects, in conformity with the provisions of the 68th section of the Bankrupt Law Consolidation Act, 1849, with the view of preventing the deed from operating as an act of bankruptcy. The deed had been duly stamped on its first execu- tion, but no stamp was affixed on its second execution, which omission was made the ground of an objection to its receipt in evidence. I admitted it, however, subject to the opinion of this honourable Court, which I directed should be taken if it became necessary. 362 CROWN CASES RESERVED. 1854. Atthe time of the first interview with Mr. Collis, Pjj^^^.g on the 14th Mai/, the prisoner said he had stopped Case. work altogether; but, on the 16th, it was arranged between him and Mr. Collis, that the rolling business should be allowed to go on to complete some un- finished work. Mr. Collis then told him to keep an account of the wages of the men employed on the rolling work, and to bring it to the trustees. This the prisoner did on the 19th May, when the wages were paid by the trustees, and the rolling business finally stopped. In the nights of Monday, the 16th of May, and of every other day during that week, the prisoner re- moved property conveyed by the deed, including the articles mentioned in the indictment, from the thimble and rolling mills, (some of the heavier machines being taken to pieces for the purpose of removal), and hid them in the cellar and other parts of the house of one of his workmen. Some time afterwards, and after the sale by the trustees of the remainder of the property, a Mr. Walker, who had been a large purchaser at the sale, recommenced the business at the thimble and roll- ing mills, and the prisoner acted as his manager when the property, which formed the subject of the indict- ment, was by the prisoner's directions brought back at intervals to the mills. No manual possession of the property was taken by the prosecutors prior to its removal from and back to the mills, but the prisoner remained in possession after the execution of the deed in the same manner as before. I asked the jury three questions. 1. Did the prisoner remove the property after the execution of the deed of assignment ? 2. Did he so act with intent fraudulently to deprive the parties beneficially entitled under the deed of the goods ? 3. Was he at the time of such removal in the care CROWN CASES RESERVED. 363 and custody of such goods as the agent of the trustees 1854. under the deed ? p^^^tt's I put these three questions to the jury separately, and '-'^®*- they answered them separately as follows : — 1. He did remove the property after the execution of the assignment. 2. He did so remove it with such fraudulent intent ; and lastly, 3. He was not in the care and custody of the goods as the agent of the trustees, and thereupon (being of opinion that the two affirmative answers would sup- port a conviction notwithstanding the third answer in the negative) I dii'ected the jury to find the prisoner guilty, which they did. The questions for the opinion of the Court are, 1. Whether the deed of assignment ought to have been received in evidence ? 2. Whether my direction to the jury was correct? And lastly. Whether the conviction is valid ? M. D. Hill, Recorder. This case was argued on 3rd June 1854, before Lord Campbell C. J., Alderson B., Coleridge J., Martin B., and Crowder J. Bittleston {Field with him) for the prisoner. It is submitted that this conviction is wrong. There are two points for the consideration of the Court. It is contended, in the first place, that the prisoner was in the lawful possession of the goods, and the maxim, Furtum non est uhi initium habet detentionis per domi- num rei, is applicable to the present case. It is con- ceded that the trustees under the assignment may have had such a possession as would have enabled them to maintain a civil action of trespass against a third person; but still they had no possession, constructive or other- 364 CROWN CASES RESERVED. 1854 wise, so as to make the prisoner guilty of larceny. The '~^ — ; — doctrine of constructive possession in relation to larceny Case. was very fully considered in the recent case of Eegina V. i?cec?, which was argued before the fifteen Judges (a), which shews that, for the purposes of larceny, the possession of a servant is not the possession of the master until the servant has done something to deter- mine his exclusive possession, and in that case the coals alleged to have been stolen by the prisoner were held to be sufficiently in the possession of the master when they were delivered into the master's cart. It cannot be contended on the part of the prosecution tl^at the prisoner was a bailee and broke bulk, for the jury^iave by their verdict negatived the fact of bail- ment, and although by executing the deed he had divested himself of the property, he had done nothing to determine the possession. In the second place, it is contended that the deed required restamping. On the day when it was first executed it was a perfect instrument, valid between the parties, but was an act of bankruptcy if proceedings were taken upon it within twelve months. This being so the parties wished, by having it re-executed in the presence of an attorney, to give it a different effect, and I contend that the deed when so re-executed required to be re- stamped. Lord Campbell C. J. — Would not the re-execu- tion be a mere nullity ? Bittleston. Probably that would be so. A. Wills, for the prosecution, contended that this was a case of bailment, and that the prisoner by breaking bulk determined his possession, and that although the jury had found that he was not an agent, that finding did not negative his being a bailee. (b) Ante, p. 257. CROWN CASES RESERVED. 365 Lord Campbell C. J. — The jury expressly find 1854. that the prisoner was not in the care and custody Pkatt's of the goods as the agent of the trustees. This ^^'^^• clearly negatives a bailment, and that is the only way in which the case can be put on the part of the prosecution. The prisoner therefore being in lawful possession of the goods cannot be convicted of lar- ceny. The other learned Judges concurred. Conviction quashed. REGINA V. LARKIN. 1854. The following case was stated by the Chairman of A count for the General Quarter Sessions holden at Pontefract.{a) etokn'goods Denis Larkin was indicted in the first count for the property, stealing on the 3rd of May 1854, at Sheffield, six alleged that pounds weight of steel, the property of Abraham receFvedThe Brooksbank, and the indictment contained a second same, the count, which was in the following words : — well knowing them to have . . , , been stolen, (a) borne strong observations omitted such part as is clearly irre- The error were made by one of the learned levant ; but it is to be hoped that was disco- Judges as tothe unnecessarymatter in future the gentlemen upon whom vered after which was introduced into this the duty of preparing cases from verdict, and^ case, the entire record having been sessions devolves will refrain from prisoner s set out. Although for the reasons introducing any matter which is jnoved. in given at p. 353, I adhere to the not necessary to the decision of arrest of rule of inserting all the cases ver- the points reserved for the opinion judgment, batirn,! have in the present instance of the Court. — H. R. D. on which the Court amended the count by striking out A. B. and inserting the name of the prisoner. Held ■ i. That the count, as it stood before amendment, was bad, in not alleging the scienter. 2. That the objection was properly taken. 3. That the Court had no power to amend after verdict. It was ordered that the record be restored to its original state, and a verdict of not guilty entered. 366 CROWN CASES RESERVED. 1854. "And the jurors aforesaid upon their oath afore- j^^^^^^, said, do further present that the said Denis Larkin Case. afterwards, to wit on the same day and year afore- said, with force and arms at the parish of Sheffield aforesaid, in the riding aforesaid, the same six pounds weight of steel of the goods and chattels of the said Abraham Brooksbank, then lately before feloniously stolen, taken and carried away, then and there feloni- ously did receive, he the said A. Brooksbank then and there well knowing the said last mentioned goods and chattels to have been feloniously stolen, taken and carried away, against 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." On the trial no evidence was offered on the first count, but a verdict of guilty on the second count was returned, the error not having up to that time been observed by the Court. To prove the scienter, the Counsel for the prosecution proposed to ask a witness for the prosecution whether he had ever sold goods at other times to the prisoner which he (witness) had stolen from other persons than the prosecutor. Counsel for the prisoner objected that the evidence was not receivable. Objection allowed. In cross- examination. Counsel for the prisoner asked the wit- ness, for the purpose of impeaching his credit, whether he had ever stolen anything before ? Answer, yes. Question, how many times ? Answer, between four and five. On re-examination, Counsel for the prose- cution proposed to ask the witness, for the purpose of proving that he had sold the scraps stolen on the said four or five occasions to the prisoner, what he had done with them ? Objected to, as before. Objection overruled on the ground that the evidence was let in by the above cross-examination, and the witness then CROWN CASES RESERVED. 367 stated that he had sold the scraps stolen on former ]854. occasions to the prisoner. _ larkin's The opinion of the Court of Appeal is requested whether the above-mentioned evidence was admis- sible either in the first instance, or in consequence of the cross-examination of the witness by the prisoner's Counsel ? After the verdict had been recorded, the Counsel for the prisoner moved that the judgment should be arrested on the ground that the indictment did not allege any guilty knowledge in the prisoner. The Counsel for the prosecution argued — 1st. That as the objection had not been brought to the notice of the Court by demurrer, or otherwise, before the jury had given their verdict, the Counsel for the prisoner was not at liberty to move in arrest of judgment at the time when he did so move. 2nd. That the second count was good, it being allowable to reject the words, " the said Ahraham Brooksbank," as surplusage for which he cited R. v. Morris, 1 Leach, C. C. tdS. ^^'^ 3rd. That the indictment might be amended. The Court were of opinion that the count was good as it stood, but they amended the indictment by striking out the words " Ahraham Brooksbank" and substituting for them the words '■^ Denis Larkin," between the words " he the said," and the words, " well knowing," in the second count, so that it cor- rectly alleged a guilty knowledge in the prisoner, and sentence was passed, subject to the opinion of the Court of Criminal Appeal, on the following ques- tions. 1st. Whether the prisoner's Counsel was at liberty to move in arrest of judgment at the time he did move? 2nd. Whether it was not allowable to reject the 368 CROWN CASES RESERVED. 1854. words " the said Abraham Brooksbank" as surplus- Larkin's 3g^' so that the second count was good as it origi- Case. nally stood ? 3rd. Whether the Court had power to amend the indictment in the manner above stated ? 4th. If the opinion of the Court of Criminal Ap- peal is that the conviction is bad, their opinion is further requested on the point, whether a fresh in- dictment, correctly alleging the guilty knowledge, will lie against the prisoner ? Wilson Overend, Chairman. This case was considered on 3rd June 1854, by Lord Campbell C. J., Alderson B., Coleridge J., Martin B., and Crowder J. Hall, for the prosecution. Heaton, for the prisoner. Hall, on an intimation from the Court, refrained from arguing the question. Lord Campbell C. J. — The indictment is bad on the face of it, in not alleging the scienter. There was clearly a right to move in arrest of judgment. There was clearly no power to amend. We direct that the record be restored to its original state, and a verdict of not guilty entered. The other learned Judges concurred. Conviction quashed. CROWN CASES RESERVED. 369 REGINA V. GEORGE FEATHERSTONE. 1854. The prisoner, George Featherstone, was tried at The prisoner the Spring: Assizes, 1854, holden at Worcester. The was charged » " with steahng indictment charged hira with steaung twenty-two twenty-two sovereigns and some wearing ajjparel. and^some^ It appeared that the prosecutor's wife had taken from wearing the prosecutor's bed room thirty-five sovereigns and prosecutor's some articles of clothing, and that when she left the "^^ll^^l^ house she called to the prisoner, who was in a lower prosecutor's ... , , 1 • J ted room room with the prosecutor and other persons, and said thirty-five "George, it's all right, come on." Prisoner left in a |°''j"/j^"/ few minutes after. articles of The prisoner and the wife were afterwards seen and irff the together at various places, and eventually were traced house, saying to a public house, where they passed the night to- soner, who gether. When taken into custody the prisoner had Jower^room twenty-two sovereigns upon him. "Its all mi . <• 1 1 • •! .11 right, come Ihejury round the prisoner guilty, stating that they on" The did so "on the ground that he received the sovereigns the'proLcu- from the wife, knowing that she took them without tor's wife the authority of her husband." wards seen Whereupon the Judge respited the judgment, ad- ^fre'uace^d^ mitted the prisoner to bail, and reserved for the opinion to a public of the Court of Criminal Appeal the question whether they slept a delivery of the husband's goods, by the wife to the ^Ife^Taken adulterer, with knowledge by him, that she took them '"to custody, without the husband's authority, was sufficient to had'twenty- maintain the indictment for felony against him ? '^'I" ^°^^' •> o reigns on William Wightman. him. The jury found the prisoner guilty on the ground that he received the sovereigns from the wife knowing that she took them without the authority of her husband. Held, that the conviction was right VOL. I. D D 370 CROWN CASES RESERVED. 1 854. This case was, in fact, reserved by the late Mr. Justice Feather- Talfourd, but had not been signed, as prescribed by stone's the second section of the 11 & 12 Vict. c. 78, and on this being mentioned to this Court on 29th April 1854, they were of opinion that Mr. Justice Wight- man, the other Judge named in the commission, was virtually present at the trial, and that, therefore, if he signed the case, it would be a sufficient compliance with the statute. This was afterwards done, and the case was considered on 3rd June 1854, by Lord Campbell C. J., Alderson B., Coleridge J., Martin B., and Crowder J. No Counsel appeared. Lord Campbell C. J. — We are of opinion that this conviction is right. The general rule of law is, that a wife cannot be found guilty of larceny for stealing the goods of her husband, and that is upon the prin- ciple that the husband and wife are, in the eye of the law, one person ; but this rule is properly and reason- ably qualified wlien she becomes an adulteress. She thereby determines her quality of wife, and her pro- perty in her husband's goods ceases. The prisoner was her accomplice, and the jury find that he assisted her, and took the sovereigns, knowing that she had taken them without the husband's consent. It is said, in 1 Russell on Crimes, page 23, that a stranger cannot commit larceny of the husband's goods by the delivery of the wife ; but a distinction is pointed out where he is her adulterer. In Dalton, page 353, it is said, " but it should be observed that if the wife should steal the goods of her husband, and deliver them to B., who knowing it carries them away, B., being the adulterer of the wife, this, according to a very good opinion, would be felony in B., for in such case no consent of the husband can be presumed." That case is identical with the present. The prisoner knew that CROWN CASES RESERVED. 371 it was without the consent of the husband. We think 1854. the conviction was clearly right. Feather- Alderson B. — An adulterer cannot be allowed to ^"^^^^^'^ set up as a defence a delivery by the wife when he knows the circumstances under which the goods were taken by the wife from the husband. The other learned Judges concurred. Conviction affirmed. REGINA V. EDWARD SAMWAYS and JOSEPH jg^^ WILLIS. ' The following case was stated for the opinion of Ti,e pn. this Court by the Chairman of the General Quarter ^^^^"''gj^^^jh Sessions of the Peace for the county of Dorset. stealing four At a General Sessions of the Peace for the county ^a^ley and of Dorset, held at Dorchester on the 1st day of March three sack 7.. ,. . , Dags from 1854, Edward Samways and Joseph Willis were tried their master. before myself and others for having, whilst servants in^vi^d^n°cr to one John Scutt, feloniously stolen, on the 14th of that the pri- ■' soners and February last, four sacks of barley and three sack one B. were bags, the property of the said John Scutt their master. t™e^prose- ^ cutor to winnow barley which he had mixed with canary seed. One of the prisoners fetched several sacks from the prosecutor's house, which he and B. filled with barley. The two prisoners then sent B. home before the usual time. At twelve o'clock on the night of the same day, the carter went into the stable with a lantern, and shortly afterwards the two prisoners entered the stable. In a few minutes after this the prosecutor saw the carter iq the loft above with a lantern, and found the two prisoners concealed under straw in the loft, and then in a dust bin in a stable beneath he found three sacks full of barley mixed with canary seed, which he swore was of the same kind which he had mixed. It was no part of the duty of the prisoners to place the barley in sacks, or to put the sacks of barley into the dust-bin. The jury found both the prisoners guilty. Held, that the evidence was sufficient to support the conviction. D D 2 372 CROWN CASES RESERVED. 1854, A second count also charged them with feloniously Samwav'8 receiving the same. Case. The evidence on the part of the prosecution was substantially as follows : — The two prisoners, with a girl named Emily Burden, were employed on the 14th of February 1854, by John Scutt (the prose- cutor) to winnow some barley in his barn, and having reason to suspect that some of his barley had been taken away, the prosecutor mixed about a pint of canary seed with the barley in the barn on the said 14th of February, before the two prisoners began to winnow the same ; and during the afternoon of this day one of the prisoners (viz. Edward Samways) was seen to enter the prosecutor's house and bring away several sacks from that house into the barn, and then he and Emily Burden filled these sacks with the barley. The prisoners then told Emily Burden that she might go home, although the usual hour of her leaving work had not quite arrived. At twelve o'clock on this same night the prosecutor John Scutt and his brother Mobei^t Scutt placed themselves to watch the barn and the stable, and first saw William Bowring the carter enter the stable with a lantern in his hand, and soon after this they distinctly saw the two pri- soners enter the stable also. In about three minutes after this the prosecutor also entered the stable, but found no one there ; but upon his calling out, the said William Bowring answered from the loft, which is above the stable ; and upon the prosecutor's going up a sort of ladder through the rack into the loft, he saw William Bowring there with a lantern, and then, upon moving some straw with a pike, he found the two prisoners concealed under the straw. No barley and no sack were found in the loft ; but upon the prosecutor's going down from the loft into the stable, there and in a bin, or dust-coop, which was in an CROWN CASES RESERVED. 373 aperture of the wall between the stable and the barn, 1854. the prosecutor found three sacks full of barley, and Samway's that barley, upon examination, was proved to have *-'^^^- canary seed mixed with it. The prosecutor John Scutt swore to his barley (samples of which were produced in Court) not merely from the barley being of the same kind and species as the barley which he had in his barn, but especially from the fact that the canary seed which was found in the barley taken from the barn, was also found in the three sacks of barley which were found in the dust bin in the stable. The prosecutor (John Scutt) also swore that it was no part of the duty of the prisoners to place the barley in sacks, and that he had never desired them to do so, least of all to place the sacks containing barley in the dust-bin in the stable, where the said three sacks of barley were found covered over with dust. In summing up this evidence to the jury, I told them distinctly that the charges against the prisoners were twofold, and quite distinct. That with regard to the first count, which charged the two prisoners with the felonious stealing of the said several chattels, a posi- tive or constructive taking and asportation of the barley, or the bags, one or the other, or both, must be proved jointly or severally to have been committed by the prisoners ; and that it was for them the said jury to say whether, according to the evidence, the prisoners were proved to have so feloniously taken away and appropriated the barley or the bags (the one or the other, or both) belonging to the prosecutor. With regard to the second count, which charged the two prisoners with having feloniously received the said four sacks of barley and three bags, well knowing the same to have been feloniously stolen, I most dis- tinctly told the jury that they must be satisfied (according to the doctrine laid down in the case of 374 CROWN CASES RESERVED. 1854. Regina v. John Wiley, as reported in 4 Cox's Criminal Samway's Cases, 412) that there was " an actual or constructive Case- possession" of the stolen chattels by the prisoners (one or both), the question being whether the pri- soners were ever seen carrying away the sacks of barley, or any parts or portions of the same : or whether they were ever seen in the same room or place where the three sacks of barley were found by the prosecutor, the evidence shewing that although the two prisoners were seen to enter the stable at twelve o'clock &t night, William Bowring was also shewn to have entered that same stable with a lan- tern a few minutes before the two prisoners entered that stable ; and that the acts imputed to the prisoners might, by possibility, have been committed by William Bowring. The jury having found both the prisoners guilty, under the first count of the indictment, of having feloniously stolen the said barley and bags, the Court sentenced the said two prisoners to twelve calendar months' imprisonment, with hard labour; but after the verdict had been recorded, and the sen- tence had been passed by the Court, the Counsel, on the part of the prisoners, applied to the Court to grant a case for the consideration of the Judges of the Court of Criminal Appeal, on the ground that, in point of law, the jury were wrong in finding the prisoners guilty of stealing the four sacks of barley, inasmuch as tliere was no evidence to shew that the prisoners ever had the said four sacks of barley in their possession, or that they had ever actually or constructively taken the same from the prosecutor with a felonious intent. Whereupon the Court granted a case for the consideration of the said Court of Criminal Appeal, and respited and arrested the judgment passed upon the said two prisoners, who are now ill prison. And the question which I now most CROWN CASES RESERVED. 375 respectfully submit to the consideration of her 1854. Majesty's Justices of either Benches, and Barons samway's of the Exchequer, in pursuance of the statute in such Case. case made and provided, is, whether the above facts do warrant, in point of law, the finding of the jury in this case ? H. F. Yeatman, Chairman of the Dorset General Sessions. This case was considered on 3rd June 1854, by Lord Campbell C. J., Alderson B., Coleridge J., Martin B., and Crowder J. Ffooks, for the prisoner. It is submitted that there is no evidence of an asportation. The sacks were not identified. Both prisoners were found guilty of stealing, and there is no evidence of their acting in concert. Lord Campbell C. J, — There is overwhelming evidence against both the prisoners. The other learned Judges concurred. Conviction affirmed. 376 CROWN CASES RESERVED. 1854. REGINA V. JOHN EAGLETON. The defend- The following case was stated by the Recorder of uacted"!!! Great Yarmouth. writing with xhe defendant was tried at the Quarter Sessions for theguardians in^-v tt- 7111 11 of a parish the borough or Great xarmouth, holden on the 1st to supply and deliver for a certain terra to the out-door poor, at such times as the guardians should direct, loaves of bread of three and a half pounds weight each. The guardians were, during the said term, to pay the defendant after certain rates and prices for the bread so supplied, and of which a bill of particulars should have been sent. The contract contained a proviso, that in case the defendant broke the terras of his contract in any of the ways therein naraed, one of which was by a deficiency in the weight stated and charged for in the said bill of particulars, the guardians might employ other persons to supply the bread, and charge the defendant with the costs of such supply above the price contracted for, and might retain any moneys due to the defendant under the con- tract at the time of such breach towards such costs, or the damages which the board might sustain, and might also put in suit against the defendant a bond which he then executed, and which was conditioned for the due performance of his contract. The indictment contained ten counts, the first seven of which were in substance the same, and charged the defendant with a common law misdemeanor, in supplying as such contractor loaves of bread which were deficient in weight, with intent to injure and defraud the said poor persons, and to cheat and defraud the said guardians. The three last counts charged the common law misdemeanor of endeavouring to obtain money by false pretences. It was proved in evidence, that on poor persons applying for relief the relieving ofEcer gave the applicant a ticket, the presentation of which to the defendant entitled him to ■ receive a loaf; that the defendant received these tickets, and gave to the poor persons presenting them loaves of bread which the jury found were deficient in weight, and were so with the knowledge of the defendant. By the course of dealing, the defendant would return the tickets in the following, week, with a statement in writing of the number of loaves he had supplied, and the relieving officer would credit the defendant in account with the guardians with the amount, and the money would then be paid to him at the time stipulated in the contract. The tickets were so returned by the defendant, with a note in the defendant's hand- writing stating the number of tickets sent back, and he was so credited as aforesaid. The jury found that the defendant intended to defraud the out-door poor, and that by returning the tickets to the relieving officer he intended to represent that he had delivered the loaves mentioned in them of the weights stated. Qiuere, whether the first seven counts disclosed any legal oflTence, and whether the evidence was sufficient to warrant a conviction on the three last counts, or merely shewed an attempt to obtain credit in account ? CROWN CASES RESERVED. 877 day of March 1854, upon an indictment, a copy of 1854. which is annexed (a). Eagleton's Case. (o) The following are copies of the indictment, contract and bond referred to in the case. Indictment. Borough of 1 The jurors for Great Yarmouth iour Lady the to wit. J Queen upon their oaths present that heretofore to wit on the 3rd day of December in the year of our Lord 1853 in the parish of Ch-eat Yarmouth in the borough of Great Yarmouth within the jurisdiction of this Court the guardians of the poor of the said parish of Great Yarmouth in the county of Norfolk duly and pub- lickly advertised in a certain county newspaper to wit the Norfolk Chronicle for tenders for the sup- ply of bread made from the best household flour at per loaf of three pounds and one half of a pound for out relief from the 24th day of December in the year aforesaid till the 25th day of March then next. And the jurors aforesaid upon their oaths aforesaid do further present that thereupon John Eagleton of the parish aforesaid in the borough aforesaid baker to wit on the 22nd day of December in the year first aforesaid duly tendered and he then and there duly and in pursuance of the statutes in such case made and provided and in due and full compliance with the rules orders and regulations made and issued by the Poor Law Commissioners for England and ^a2e.« became and was the contractor with the said guardians for the supply to the out door poor of the said parish at such time and in such manner as the said guardians or any other person or persons duly authorized by them should from time to time direct of such quantities of bread made from the best household flour in loaves weighing three pounds and one half of a pound at seven- pence per loaf as should be re- quired by the said guardians for the use of the out door poor of the said parish. And the- jurors aforesaid upon their oaths aforesaid do fur- ther present that after making the said engagement and undertaking and whilst the said John Eagleton was such contractor as aforesaid to wit on the 21st day of Ja»«ary in the year of our Lord 1854 at the parish aforesaid in the borough aforesaid and within the jurisdic- tion of this Court William Harbert then being one of the relieving oflScers of the poor of the said parish by the orders and authority of the said guardians of the poor then and there gave as and for relief to divers to wit 100 poor per- sons being out door poor of the said parish divers to wit 100 orders and tickets signed under the au- thority aforesaid by the said Wil- liam Harbert for the supply of divers to wit two loaves of bread to each of the said poor persons re- spectively. And that the said Wil- liam Harbert being duly authorized in that behalf as aforesaid then and there directed the said poor persons to produce and shew and that the said poor persons did then and there produce and shew to the said John Eagleton the said orders and tickets in order that the said John Eagleton might supply and deliver to the said poor person* respec- 378 CROWN CASES RESERVED. 1S54. The evidence was a contract, dated 27th Decent Eagletojs's ^e*" 1853, and a bond of the same date (copies of Case. tively for their sustenance and sup- port the number of loaves specified in the said orders and tickets re- spectively. And that the said WiU liam Harbert thereby then and there being duly authorized in that be- half as aforesaid ordered and di- rected the said John Eagleton to supply and deliver to the said poor persons respectively the number of loaves of bread in the said orders and tickets respectively specified in pursuance of and according to the terms of his said contract and un- dertaking. And the jurors afore- said upon their oaths aforesaid do further present that the said poor persons were not nor was any or either of them authorized by the said guardians or by the said fVil- liam Harbert or by any or either of them or by any other person what- soever to obtain and that the said poor persons were and each and every of them was wholly unable to obtain the said loaves of bread or any bread whatsoever by means of the said orders and tickets else- where or from any other baker or person whatsoever but only from him the said John Eagleton of all which premises the said John Eagleton then and there had notice. And the jurors aforesaid upon their oaths aforesaid do further, present that the said John Eagleton then to wit on the day and year last afore- said at the parish aforesaid in the borough aforesaid and within the jurisdiction of this Court so being such contractor as aforesaid not regarding his duty in that be- half but under colour and pretence of his said contract and contriving and intending to injure and defraud the said poor persons respectively and to deprive them of proper and suiBcient food and sustenance and to endanger their healths and con- stitutions respectively and further contriving and intending to cheat and defraud the said guardians un- lawfully and fraudulently supplied and delivered to divers to wit fifty of the said poor persons who then respectively produced and shewed to the said John Eagleton the said orders or tickets as aforesaid divers to wit 100 loaves of bread as and for loaves of bread weighing respectively three pounds and one half of a pound each loaf. "Whereas the said loaves respectively as he the said John Eagleton then well knew were not of the weight of three pounds and one half of a pound each loaf but each of them was of a far less weight to wit of the weight of three pounds and four ounces and no more, in breach of his duty as such contractor as aforesaid, to the fraud great damage and prejudice of the said poor per- sons respectively and to the great danger of their healths and consti- tutions respectively, in contempt of our said lady the Queen and her laws and to the evil example of others and against the peace of our said lady the Queen her crown and dignity. 2nd Count. And the jurors for our said lady the Queen upon their oaths present that heretofore to wit on the 3rd day of December in the year of our Lord 1853 at the parish of Great Yarmouth in the borough of Great Yarmouth and within the jurisdiction of this Court the guardians of the poor of the parish of Great Yarmouth in the county of Norfolk duly and CROWN CASES RESERVED. 379 which are also annexed) ; and it was proved that, on 1854 poor persons applying for out-door relief, the reliev- eagleton^s Case. publickly advertised in a certain county newspaper to wit the Nor- folk Chronicle for tenders for the supply of bread made from the best household flour at sevenpence per loaf of three pounds and one half of a pound for out relief from the 24th day of December in the year aforesaid till the 25th day of March then next. And the jurors aforesaid upon their oaths aforesaid do further present that thereupon John Eagleion of the parish afore- said in the borough aforesaid baker to wit on the 23rd day of December in the year first afore- said duly tendered and he then and there duly and in pursuance of the statutes in such case made and provided and in due and full compliance with the rules orders and regulations made and issued by the Poor Law Commissioners for England and Wales became and *as the contractor with the said guardians for the supply to the out door poor of the said parish at such times and in such manner as the said guardians or any person or persons duly authorized by them should from time to time direct of such quantities of bread made from the best household flour in loaves weighing three pounds and one half of a pound at sevenpence per loaf as should be required by the said guardians for the use of the out door poor of the said pa- rish And the jurors aforesaid upon their oaths aforesaid do further present that after making of the said agreement and undertaking and whilst the said John Eagleton was such contractor as aforesaid to wit on the 21st day of January in the year of our Lord 1854 at the parish aforesaid in the borough aforesaid and within the jurisdic- tion of this court William Christ- mas Nutman then being one of the relieving officers of the poor of the said parish by the orders and authority of the said guardians of the poor then and there gave as and for relief to divers to wit 100 poor persons being out door poor of the said parish divers to wit 100 orders or tickets signed by the said William Christmas Nutman for the supply of divers to wit two loaves of bread to each of the said poor persons respectively and that the said William Christmas Nutman being duly authorized in that behalf as aforesaid then being and there directed the said poor persons to produce and shew and that the said poor persons did then and there produce and shew to the said John Eagleton the said orders and tickets in order that the said John Eagleton might supply and deliver to the said poor persons respect- ively for their sustenance and support the number of loaves of bread specified in the said orders and tickets respectively and that the said William Christmas Nut- man thereby then and there being duly authorized in that behalf aforesaid ordered and directed the said John Eagleton to supply and deliver to the said poor persons respectively the number of loaves of bread in the said orders and tickets respectively specified in pursuance of and according to the terms of his said contract and un- dertaking. And the jurors afore- said upon their oaths aforesaid do hereby further present that the said poor persons were not nor 380 CROWN CASES RESERVED. 1854. ing officer gave the applicant a ticket, in the fol- Eaglbton^s lowing form :— Case. 31 Bread one loaf Wm. Harbert. The poor person on presenting the ticket to the was any or either of them author- ized hy the said guardians or by the said William Christmas Nut- man or by any or either of them or by any other person whatsoever to obtain and that the said poor per^ sons were and each and every of them was wholly unable to obtain the said loaves of bread or any bread whatsoever by means of the said orders and tickets elsewhere or from any other baker or person whatsoever but only from hira the said John Eagleton of all which premises he the said John Eagleton then and there had notice. And the jurors aforesaid upon their oaths aforesaid do further present that the said John Eagleton then to wit on the day and year last aforesaid at the parish aforesaid in the borough aforesaid and within the jurisdiction of this court so being such contractor as aforesaid not regarding his duty in that be- half but under colour and pretence of his said contract and contriving and intending to injure and defraud the said poor persons respectively and to deprive them of proper and sufficient food and sustenance and to endanger their healths and con- stitutions respectively and further intending and contriving to cheat and defraud the said guardians unlawfully and fraudulently sup- plied and delivered to divers to wit 50 of the said poor persons who then respectively produced and shewed to the said John Eagleton the said orders or tickets as afore- said divers to wit 100 loaves of bread as and for loaves of bread weighing respectively three pounds and one half of a pound each loaf whereas the said loaves respect- ively as he the said John Eagleton then and there well knew were not of the weight of three pouuds and one half of a pound each loaf but each of them was of a far less weight to wit of the weight of three pounds and four ounces and no more in breach of his duty as such contractor as aforesaid to the fraud and great damage and prejudice of the said poor persons respectively and to the great danger of their healths and constitutions respect- ively in contempt of our said lady the Queen and her laws to the evil example of others and against the peace of our said lady the Queen her crown and dignity. 3rd Count. And the jurors afore- said upon their oaths aforesaid do further present that heretofore to wit on the 22nd day of December in the year of our Lord one thousand eight hundred and fifty-three at the parish of Great Yarmouth in the borough of Great Yarmouth and within the jurisdiction of this court John Eagleton of the parish CROWN CASES RESERVED. 381 defendant, was entitled to receive a loaf, and could 1854, not obtain a loaf elsewhere on such ticket. Eagleton's Case. aforesaid in the borough aforesaid baker became and was a contrac- tor with the guardians of the poor of the said parish for the supply of bread to the poor of the said parish and thereby then and there en- gaged with and undertoolc to the said guardians to. supply the poor of the said parish with bread made from the best household flour in loaves weighing three pounds and one half of a pound at sevenpence each loaf for a certain period to wit from the 24th day of December in the year of our Lord 1853 to the 25th day of March then next and during that time to deliver such loaves of bread to such poor per- sons of the said parish and at such times and in such quantities as he should be ordered and directed to do by tickets or orders of the seve- ral relieving officers of the said parish being persons duly autho- rized in that behalf by the said guardians which should be pro- duced and shewn to him the said John Eagleton by the said poor persons respectively. And the jurors aforesaid upon their oaths aforesaid do present that after the making the said engagement and undertaking and during the period aforesaid and whilst the said John Eagleton was such contractor as aforesaid to wit on the 21st day of January, in the year of our Lord 1854 at the parish aforesaid in the borough aforesaid and within the jurisdiction of this Court divers orders and tickets signed by the several relieving officers of the said parish for the supply of divers loaves of bread to divers poor per- sons of the said parish were pro- duced and shewn by the said poor persons respectively to the said John Eagleton whereby the said John Eagleton was directed and ordered by the said several reliev- ing officers being persons duly authorized in that behalf aforesaid to supply and deliver divers loaves of bread to the said poor persons respectively in pursuance of and according to the terms of his said contract and undertaking and that the said poor persons were not nor was any or either of them autho- rized by the said guardians or by the said relieving officers or by any or either of them or' by any other persons whatsoever to obtain and that the said poor persons were and each and every were wholly unable to obtain the said loaves of bread or any bread what- soever by means of the said orders or tickets elsewhere or from any other baker or persons whatsoever but only from him the said John Eagleton of all which premises the said John Eagleton then and there had notice. And the jurors afore- said upon their oaths aforesaid do further present that the said John Eagleton then to wit on the day and year last aforesaid in the parish aforesaid in the borough aforesaid and within the jurisdiction of this Court so being such contractor as aforesaid and not regarding his duty in that behalf but under colour and pretence of his said contract and contriving and in- tending to injure and defraud the said poor persons respectively and to deprive them of proper food and sustenance and to endanger their healths and constitutions respect- ively and further contriving and intending to cheat and defraud the 382 CROWN CASES RESERVED. 1854. Eaglbton's Case. As many as twenty of these tickets were given on Saturday, the 21st January last, to as many out-door guardians of the poor of the said parish unlawfully and fraudulently supplied and delivered to divers to wit one hundred of the said poor persons who then respectively pro- duced and shewed to the said John Eaffleton the said orders or tickets as aforesaid divers to wit two hun- dred loaves of bread as and for loaves of bread weighing respect- ively three pounds and one half of a pound each loaf whereas the said loaves respectively as he the said John Magleton then well knew were not of the weight of three pounds and one half of a pound each loaf but each of them was of far less weight to wit of the weight of three pounds and four ounces and no more, in breach of his duty as such contractor as aforesaid, to the fraud great damage and pre- judice of the said poor persons respectively, to the great danger of their healths and constitutions respectively, in contempt of our said lady the Queen and her laws, to tjie evil example of others and against the peace of our said lady the Queen her crown and dignity. 4th Count. And the jurors afore- said upon their oaths aforesaid do further present that the said John Eagleton, on the 22d day of Decem- ber in the year of our Lord 1853 and from thence continually to and at the time of committing the seve- ral offences hereinafter mentioned at the parish aforesaid in the bo- rough aforesaid and within the. ju- risdiction of this court was a con- tractor with the guardians of the poor of the said parish of Great Yar- mouth and as such contractor was during all that time bound to sup- ply and deliver to all such poor per- sons of the said parish as should produce and shew to him the said John Eagleton a ticket or order of the several relieving officers of the said parish being persons duly au- thorized by the said guardians in that behalf such number of loaves as should be specified in the said ticket or order respectively of the weight of three pounds and one half of a pound each loaf and that the said John Eagkton so being such contractor as last aforesaid not regarding his duty in that be- half but under colour and pretence of his said contract contriving and intending to injure and defraud and deprive of due sustenance and support and to endanger the healths and constitutions of the poor persons of the said parish and to cheat and defraud the guardians of the said parish on the 21st day of JanvMiy. last aforesaid in the parish aforesaid in the borough aforesaid and within the jurisdic- tion of this court unlawfully and fraudulently gave and delivered to one Susanna Godfrey then being a poor person of the parish of Great Yarmouth and who then shewed and produced to the said John Eagleton as such contractor as aforesaid a ticket or order signed William Harbert, he then being one of the relieving officers of the said parish duly authorized by the said guardians for the supply of divers to wit two loaves of bread to the said Susanna Godfrey divers to wit two loaves of bread as and for loaves of bread of the weight of three pounds and one half of a pound each loaf which said loaves as he the said John Eagleton then well knew were not then of the CROWN CASES RESERVED, 383 poor by the relieving officer, and the poor persons, on 1854. presenting them to the defendant, received the num- eagleton's Case. weight of three pounds and one half of a pound each loaf, but each of them was of much less weight to wit of the weight of three pounds and two ounces and no more, in breach of his duty as such contractor as last aforesaid, to the fraud great damage and prejudice of the said Susanna Godfrey, in contempt of our said lady the Queen and her laws to the evil ex- ample of others and against the peace of our said lady the Queen her crown and dignity. 5th Count. And the jurors afore- said upon their oaths aforesaid do further present that the said John Bagleton so being such contractor as last aforesaid and contriving and intending afterwards as aforesaid to wit on the day and year last afore- said at the parish aforesaid in the borough aforesaid and within the jurisdiction of this Court unlaw- fully knowingly and wickedly in breach of his duty as such con- tractor did supply and deliver to one Elizabeth Bowles then being a poor person of the said parish of Great Yarmouth and who then pro- duced and shewed to the said John Eagleton as such contractor as aforesaid a ticket or order signed by William Harbert, he then being one of the relieving officers of the said parish and duly authorized by the said guardians for the supply of divers to wit two loaves of bread to the said Elizabeth Bowles, di- vers to wit two loaves of bread as and for loaves of bread of the weight of three pounds and one half of a pound each loaf, which last mentioned loaves as he the said John Eagleton then well knew were not of the weight of three pounds and one half of a pound each but each of them was of much less weight to wit of the weight of three pounds and three ounces and no more, in breach of his duty as siich contractor as aforesaid to the fraud great damage and prejudice of the said Elizabeth Bowles in con- tempt of our said lady the Queen and her laws to the evil example of others and against the peace of our said lady the Queen her crown and dignity. 6th Count. And the jurors afore- said upon their oaths aforesaid do further present that the said John Eagleton so being such contractor as last aforesaid and contriving and intending as aforesaid afterwards to wit on the day and year last afore- said at the parish aforesaid in the borough aforesaid and within the jurisdiction of this Court unlaw- fully knowingly and wickedly in breach of his duty as such con- tractor did supply and deliver to one Samuel Lingwood then being a poor person of the said parish of Great Yarmouth and who then pro- duced and shewed to the said John Eagleton as such contractor as aforesaid a ticket or order signed by William Christmas Nutman he then being one of the relieving officers of the said parish and duly authorized by the said guardians for the supply of divers to wit two loaves of bread to the said Samuel Lingwood divers to wit two loaves of bread as and for loaves of bread of the weight of three pounds and one half of a pound each loaf which said last mentioned loaves as he the said John Eagleton then well knew were not then of the weight of three pounds and one half of a 384 CROWN CASES RESERVED. 1854. ber of loaves mentioned in the ticket. By the course Eaglbton's of dealing the defendant would return the tickets in pound each but each of them was of a much less weight to wit of the weight of three pounds and one ounce and no more in breach of his duty as such contractor as aforesaid to the fraud great damage and prejudice of the said Samuel Lingwood, in contempt of our said lady the Queen and her laws, to the evil example of others and against the peace of our said lady the Queen her crown and dignity. 7th Count. And the jurors afore- said upon their oaths aforesaid do further present that the said John Eayleton being such contractor as last aforesaid and contriving and intending as aforesaid afterwards to wit on the day and year last afore- said at the parish aforesaid in the borough aforesaid and within the jurisdiction of this Court unlawfully knowingly and wickedly in breach of his duty as such contractor did supply and deliver to one James Mayer then being a poor person of the parish of Great Yarmouth and who then produced and shewed to the said JoAn jEagleton as such con- tractor as aforesaid a ticket or order signed by William Christmas Nut- man, he being then one of the re- lieving oflScers of the said parish and duly authorized by the said guardians for the supply of divers to wit two loaves of bread to the said James Mayer, divers to wit two loaves of bread as and for loaves of bread of the weight of three pounds and half of a pound each loaf, which said last-mentioned loaves as the said John Eagleton then well knew were not then of the weight of three pounds and one half of a pound each but each of them was of a much less weight to wit of the weight of three pounds and four ounces and no more, in breach of his duty as such con- tractor as aforesaid, to the fraud great damage and prejudice of the said James Mayer, in contempt of our said lady the Queen and her laws, to the evil example of others and against the peace of our said lady the Queen her crown and dignity. 8th Count. And the jurors afore- said upon their oaths aforesaid do further present that heretofore to wit on the twenty-first day of Janu- ary in the year of our Lord one thou- sand eight hundred and fifty-four at the parish of Great Yarmouth in the borough of Great Yarmouth and within the jurisdiction of this Court John Eagleton of the parish aforesaid in the borough aforesaid baker unlawfully knowingly and designedly did falsely pretend to one William Christmas Nutman, then being relieving officer of the said parish of Great Yarmouth that he the said John Eagleton had on the day and year last aforesaid sup- plied and delivered to one Samuel Lingwood, then being a poor person of the said parish two loaves of bread and that each of the said two loaves of bread then weighed three pounds and one half of a pound, by means of which said false pretences the said John. Eagleton did then and there unlawfully at- tempt and endeavoxir fraudulently falsely and unlawfully to obtain from the guardians of the poor of the said parish a sum of money to wit the sum of one shilling of the monies of the said guardians, with the intent thereby then and there to cheat and defraud. Whereas CROWN CASES RESERVED. 385 the following week, with a statement in writing of the number of loaves he had supplied, but no other par- 1854. Eagleton's Case, in truth and in fact the said two loaves of bread did not each weigh nor did either of them weigh three pounds and one half of a pound 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. 9th Count. And the jurors afore- said upon their oaths aforesaid do further present that heretofore to wit on the twenty first day of January in the year of our Lord one thousand eight hundred and fifty four at the parish of Great Yarmouth in the borough of Great Yarmouth and within the jurisdiction of this court the said John Eagleton un- lawfully knowingly and designedly did falsely pretend to one William Christmas Nutmariyhe then being a relieving officer of the poor of the said parish, that he the said John Eagleton had on the day and year last aforesaid supplied and de- livered to one James Mayer then being a poor person of the said parish, two loaves of bread and that each of the said two loaves of bread then weighed respectively three pounds and one half of a pound, by means of which said false pretences the said John Eagleton did then and there unlawfully at- tempt and endeavour fraudulently falsely and unlawfully to obtain from the said guardians of the poor of the said parish a sum of money to wit the sum of one shilling of the monies of the said guardians with intent thereby then and there to cheat and defraud, whereas in truth and in fact the said two loaves of bread did not each weigh nor did either of them weigh three pounds and one half of a pound, 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. 10th Count. And the jurors afore- said upon their oaths aforesaid do further present that heretofore to wit on the twenty first day of Ja- nuary one thousand eight hundred and fifty four at the parish of Great Yarmouth in the borough of Great Yarmouth and within the jurisdic- tion of this court the said John Eagleton unlawfully knowingly and designedly did falsely pretend to one William Harbert he then being a relieving officer of the poor of the parish of Great Yarmouth that he the said John Eagleton had on the day and year last aforesaid supplied and delivered to one Elizabeth Bowles, then being a poor person of the said parish a loaf of bread and that the said loaf of bread then weighed three pounds and one half of a pound, by means of which said false pretences the said John Eagleton did then and there unlawfully attempt fraudu- lently falsely and unlawfully to obtain from the said guardians of the poor of the said parish a sum of money to wit the sum of one shilling of the monies of the said guardians, with intent thereby then and there to cheat and defraud, whereas in truth and in fact the said loaf of bread did not then weigh three pounds and one half of a pound, 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. VOL. I. E E 586 1854'. Eagleton's Case. CROWN CASES RESERVED. ticular would be delivered, and the relieving officer would credit the defendant in his books for the Contract. Memorandum of agreement made the 22nd day of December 1853 between John Eagleton of Great Yarmouth in the county of Norfolk baker of the one part and the guar- dians of the poor of the parish of Great Yarmouth in the county of Norfolk of the other part. "Whereas by a certain order bear- ing date the 28th day of February 1837 under the hands and seals of the Poor Law Commissioners for England and Wales acting under the powers and authorities of an act passed in the 4th and 5th years of the reign of King William the 4th intituled "An Act for the Amendment and better Adminis- tration of the Laws relating to the Poor in England and Wales." It was declared that the laws for the relief of the poor in the parish of Great Yarmouth in the county of Norfolk should be administered by a board of guardians consisting of sixteen members and that such board of guardians should be elected and constituted according to the provisions of the Poor Law Amend- ment Act. And whereas a board of guardians have been elected for the said parish in pursuance of a fur- ther orderbearing date the twentieth day of March one thousand eight hundred and thirty-seven. And in and by the rules orders and regu- lations prescribed by the Poor Law Commissioners for the directions of such board it is amongst other things declared that the board of guardians should order and direct the purchasing of the supplies of bread flour meat and other articles required for the use in the work- house or for the relief of the pau- pers out of the workhouse in such manner as might appear to such guardians best calculated! to pre- vent imposition and to promote economical management and that with such views such purchases should so far as circumstances will allow be made upon tenders after public advertisement in one county newspaper at least. And whereas the board of guardians did on the 3rd day of December instant in pur- suance of the said directions cause a public advertisement to be in- serted in the Norfolk Chronicle newspaper circulated in the said county of their intention to receive at a meeting of the said Board to be held on the l6tb day of December for the purpose from persons wil- ling to offer tenders for providing the poor of the said parish with bread and flour &c. proposals in writing for entering into a contract for supplying the same in manner hereinafter mentioned. And that such persons should enter into a bond forthe due performance of such contract. And whereas in pur- suance of such notice the said John Ear/leton did at the meeting of the said guardians held on the saidlGth day of December for such purpose as aforesaid send in a tender or proposal in writing for supplying the poor with bread and flour upon and subject to the terms and con- ditions hereinafter contained which tender was approved and accepted by the said meeting. Now there- fore it is agreed by and between CROWN CASES RESERVED. 387 amount, and the money would then be paid to him at 1854. the time stipulated in the contract. Eagleton's Case. the said parties hereto and the said JohnEagleton doth in consequence of the payment to be made to him as hereinafter mentioned hereby contract with the said guardians that he the said John Eagleton will henceforth until the 25th day of March next serve supply and de- liver or cause to be delivered to the out door poor at such times and in such manner as the said board of guardians or any person or per- sons duly authorized by them shall from time to time direct such quantities of bread and flour as shall be required by the said board for the use of the out door poor at and after the rates or prices following that is to say bread made from the best household flour in loaves of three and a half pounds each not having been baked less than twenty- four hours nor more than thirty- six hours before delivery at seven- pence per loaf and best household flour at two shillings and tenpence per stone. And they the said guardians do hereby agree that in case the said John Eagleton shall well and truly serve supply and de- liver the articles aforesaid to the out door poor aforesaid upon the terms and in manner aforesaid according to the said agreement they the said guardians and their successors shall and will well and truly pay or cause to be paid to the said John Eagleton at and after the rates and prices aforesaid during the said terra for every quantity of the said articles so to be ordered served supplied and delivered and of which a bill of particulars shall be sent with the said articles at the time of the delivery thereof within two calendar months from the said 25th day of iH«rc7! next. Provided E always and it is hereby expressly agreed and particularly by and on the part of the said John Eagleton that in case such articles shall not be duly served supplied and de- livered by him when and as required by the said board or by such person as shall be duly au- thorized by them and when de- livered shall not in. every respect be of the quality and sort contracted for or shall be deficient in the weight stated and charged for in such bill of particulars with such articles or if the same shall be de- livered without such bill of parti- culars they the said board or the person or persons so authorized by them shall be at liberty to return the same at the expence of the said John Eagleton or give notice for the same to be sent for and fetched away by him. And that in every such case it shall be lawful for the said board or such person so au- thorized by them as aforesaid to purchase a fresh supply or employ any other person or persons to serve and supply the said out door poor with bread and flour in such manner as may be required during the period of the said contract or any part of such period in the place of the said John Eagleton. And that in such case the said John Eagleton his executors and ad- ministrators shall bear and make good all costs charges and expences of such additional supply over and above the price at which the same are hereinbefore contracted to be supplied and delivered by the said John Eagleton. And also that it shall be lawful for the said board of guardians to retain and apply any sura of money which may be due to the said John E 2 CROWN CASES RESERVED. 1854. These tickets were returned by the defendant to the Eagleton's relieving officer, with the note of the number of loaves, and defendant had credit accordingly. Case. Eagleton under and by virtue of this agreement at the time of such failure in the performance thereof to the payment of such loss costs damages and expences as the board may incur or be put to by reason thereof. And that notwith- standing the agreement last herein contained for making good the ar- ticles which shall not be served supplied and delivered according to the terms hereinbefore agreed on and in pursuance of the said contract it shall be lawful for the board of guardians of the said pa- rish for the time being to put in suit the bond to be given for the performance of this contract of even date herewith against the said John Eagleton his executors or ad- ministrators. Provided also and it is hereby agreed that if the said poor law commissioners or the said board of guardians with their consent or by their direction should at any time during the term of the said contract be desirous to put an end to the same and shall give five days notice thereof in writing to the said John Eagleton or leave such notice at his usual place of abode or of carrying on business then this present contract or agree- ment shall thereupon in all res- pects cease and determine anything herein contained to the contrary thereof in anywise notwithstanding. Witness the hands of the said parties the day and year first above written. Witness, John Eagleton. TVilliam Willson. The common seal of the guardians of the poor of the parish of Great Yarmouth was hereunto duly affixed at a weekly meeting of \ the said board held at the board room of the workhouse of the said parish this 24th day of February 1854. > In the presence of W. Willson, clerk to J. L. Cu- paude the clerk to the guar- dians aforesaid. Bond. Know all men by these presents that I John Eagleton of Great Yarmouth in the county of Norfolk baker am held and firmly bound to the guardians of the poor of the parish of Great Yarmouth in the county of Norfolk and their succes- sors in the penal sura of 300Z. of good and lawful money of Great Britain and Ireland to be paid to the said guardians or their successors for which payment to be well and faith- fully made I bind myself my heirs executors and ad- ministrators and every of them firmly by these presents sealed with my seal. Dated the 22nd day of December in the year of our Lord 1853. Whereas by a certain contract or agreement in writing bearing even date with the above written obligation and written in the first two sides of this sheet and made between the above bounden John Eagleton of the one part and the CROWN CASES RESERVED. 389 It was objected, on the part of the defendant, that 1854-, no one count set out an offence, and that the evidence eagleton's did not support any of the first seven counts for fraud. Case. nor the last three, as an attempt to obtain money by false pretences. The jury found that the loaves of bread furnished by the defendant were deficient in weight, and were so with the knowledge of the defendant; and that he intended thereby to defraud the out-door poor, for whose relief they had been ordered ; and that, in returning the tickets to the relieving officer, he in- tended to represent that he had delivered the loaves mentioned on them, of the weight stated in the con- tract, and returned a verdict of guilty. I have to request the opinion of the Court of Cri- minal Appeal upon the objections taken on the part of the defendants. Nathaniel Palmer, Recorder of the Borough of Great Yarmouth. The Court, at a sitting holden on the 28th guardians of the above-named of the above written obligation is parish of the other part the said such that if the above bounden John Eagleton contracted with the John Eagleton his executors or ad- said guardians to serve supply and ministrators do and shall well and deliver at the times and places truly perform fulfil and keep all named in the said contract from and every the covenants clauses the date of such contract to the provisoes terms and stipulations in 25th day of March next (deter- the said recited contract or agree- minable nevertheless as in the said ment mentioned or contained and contract or agreement is men- on his part to he observed per- tioned) such quantity of the seve- formed fulfilled and kept accord- ral articles mentioned therein as ing to the true purport intent and shall be required for the use of the meaning thereof then the above said parish of such quality at such written bond or obligation shall be times and after the rate and price void or else shall be and remain in and subject to such terms provi- full force and virtue. soes and stipulations as in the said John Eagleton (i.. s.) contract or agreement are particu- Signed sealed and delivered larly mentioned and set forth and by the above bounden John as on reference thereto will more Eagleton in the presence of fully appear. Now the condition W. Willson. 390 CROWN CASES RESERVED. 1854-. day of April 1854, having considered that this ^GLETON's ^^^^ should be amended so as to disclose the evi- Case. dence on which the jury delivered the verdict of guilty upon the last three counts of the indictment, the learned Recorder stated the same to be as follows: — William Wilson. The attesting witness to the con- tract and bond, of which copies are annexed to the case. William Harhert. The relieving officer for the south district, who stated that the out-door poor, who were ordered by the guardians to be relieved by giv- ing them bread, applied to him as relieving officer for a ticket, which he gives in the form set forth in the case, being either for one loaf or two loaves, as ordered. That these tickets are given weekly, and the poor person takes the ticket to the contractor and receives the loaf or loaves, as mentioned upon it. That the contractor, in the ensuing'week, returns the tickets to the relieving officer, giving them with a note, stating the number sent, and the contractor is credited in the account with the guardians, with the weight of the bread mentioned on the tickets, and is paid at the time mentioned in the contract. That the loaves delivered to the poor should be each of three and a half pounds weight. That, on the twenty-first day of January, the defendant was the contractor. That witness, on that day, gave to different out-door poor persons thirty-eight tickets, thirty-two being for one loaf, and six for two loaves, each. That Susanna Godfrey had a ticket for two loaves, Elizabeth Bowles for one, Ann Parker for two, and Elizabeth Fenn for one loaf, but he could not tell to whom each ticket was delivered. That all the thirty-eight tickets given by the witness, on the twenty-first day of January, were returned to him by the defendant on Monday, the 23rd day of January, with a note in the ^defen- dant's writing, stating the number of tickets sent CROWN CASES RESERVED. 391 back, and witness entered them to the credit of defen- 1854. dant's account, in the receipt and expenditure book eag LETON S of the guardians. That, in the evening of the twenty- '-'^^^• first day of January, he made inquiry of the poor persons to whom he had given tickets as to the weight of the loaves they had received from the de- fendant, when he found that many of the loaves had been eaten, either in part or wholly, so that the weight could not be ascertained, but that Susanna Godfrey had her two loaves, Elizabeth Bowles her one, Ann Parker one of her two, and Elizabeth Fenn her one. That these were all deficient in weight, being weighed by witness, or in his presence. Susanna Godfrey. Received a ticket on the twenty- first for two loaves; she sent her son John with it to the defendant, and he brought her back two loaves ; they were weighed in the evening, and were both short in weight. John Godfrey. Took the ticket to defendant and gave it to him, and received of him two loaves, which he gave his mother, Elizabeth Bowles. Took the ticket to defendant and gave it to him, and received one loaf; it was short in weight, Ann Parker. Received a ticket for two loaves ; she sent her son William with it to defendant, and he brought her two loaves, which loaves she gave Harbert on the Monday. William Parker. Took the ticket to the defendant and gave it to him, and received from him two loaves, wWch he gave to his mother. William Christmas Nutman. Relieving oiBcer for the north district delivered twenty-one tickets, on the twenty-first day oi January, to out-door poor persons for bread ; all these twenty-one tickets were returned to witness by the defendant, on the afternoon of the following Tuesday, the twenty-fourth, with a note in 392 cilOWN CASES RESERVED. 1854. the defendant's writing, stating the nunnber of tickets Eagleton's s^"* back ; he could not tell to whoni each ticket was Case. delivered, but James Mayer, John Bowles, James Pitt, and Edward Campbell, were among the out- door poor persons to whom he gave tickets. On the same day he gave an order to Samuel Lingwood (who was a casual poor person) upon defendant for two loaves, which were each to weigh three and a half pounds ; that this order was returned to him on tlie twenty-first day of January, a week after defendant had been held to bail to answer a charge of fraud ; this order he knew from Samuel Lingwood's name being written by him, witness, on it. This witness in- quired of the poor, to whom he had delivered tickets, as to the bread they had received, and obtained one loaf from Mayer, one from Bowles, one from Pitt, one from Campbell, and one from Lingwood, being all he could get, and they were all short in weight. Samuel Lingwood. Took the order to defendant on the twenty-first day of January, who gave him two loaves, one he ate, and the other weighed three pounds one ounce only. John Bowles. Gave the ticket to his wife, Sarah Bowles. Sarah Bowles. Took it to defendant and gave it to him ; he gave her two loaves; she weighed one, and it was short in weight nearly four ounces, and defendant afterwards gave her three pieces of bread to make up the weight. James Mayer. Received the ticket from Nutman ; took it to defendant and left it with him ; defendant gave him two loaves ; one he ate, and the other he gave to Nutman. Sarah Pitts. Received the ticket of Nutman, de- livered it to defendant, and she had from him two loaves ; one she ate, the other she gave to Nutman ; it was four ounces and three quarters' short. CROWJSr CASES RESERVED. 393 Edward Campbell. Received the ticket oi Nutman 1854. and gave it to defendant, and received two loaves, Eagleton's which he gave to Elizabeth Spanton, his mother. *-'*'*• Elizabeth Spanton. Gave one of loaves to ^ut- man ; it weighed three pounds four ounces and a- half, bare ; the other was eaten. Nathaniel Palmer, Recorder of the Borough of Great Yarmouth. This case came on to be argued on 29th April 1854, before Pollock. C. B., Parke B., CresswellJ., Erle J., and Crompton J. ; and being adjourned for the purpose of the case being amended as before mentioned, was again argued on 3rd June 1854, before Lord Campbell C. J., Alderson B., Coleridge J., Martin B., and Crowder J. Bulwer appeared for the prosecution. Bodkin {Mills, J. H., with him) for the defendant. The first seven counts are similar for the purposes of the present inquiry ; and it is submitted that they disclose no legal offence the subject of indictment at common law. Every species of fraud between indivi- duals is not at common law the subject of a criminal charge, and there are many authorities to support this proposition. The case of Rex v. Wilders, 2 East P. C. 216, may be cited as an authority. There a brewer was indicted as a cheat, in selling to one Jlicks, publican, so many vessels of ale, marked as containing a certain measure, and writing a letter to Hicks, assuring him that the vessels did contain that measure, when, in fact, they did not contain it, but a much less quantity. The indictment was quashed on motion, on the ground that it charged no indictable offence. This case is referred to by Lord Mansfield, in his judgment in Rex v. Wheatley, 2 Burr. 1128, in which case it was held, that delivering less beer than VOL. I. F F 394 CROWN CASES RESERVED. 1854 contracted for as the due quantity was not indictable; Eagleton's ^"^ ^^'"'^ Mansfield observed, that it was a mere Case. private imposition or deception, no false weights or measures being used, no false tokens given, and there being no conspiracy, but only an imposition on the person the prisoner was dealing with, in delivering him a less quantity instead of a greater, which the other carelessly accepted ; and that it was, in fact, only a non-performance of a contract, for which an action might be brought. In Chitt. Crim. Law, the first edition, I find a precedent of a similar indictment to the present against a baker at Norwich ; but in the second edition of Mr. Chitty's work that precedent is omitted, it being stated that the facts charged had been held not to constitute an indictable offence. Lord Campbell C. J. — Is there a report of the case in which it was so held? Bodkin. I have not been able to find any. As to the remaining three counts, it is contended that they merely, when taken in connexion with the evidence, disclose an attempt to obtain credit in account, which, in Rex v. Wavell, 1 Mood. C. C. 224, was held not to be an indictable offence ; and the same doctrine was held in Hex v. Crosby, 1 Cox C. C. 10. Lord Campbell C. J., after consultation with the other learned Judges, intimated that the case was of such importance to the administration of justice that his learned brothers and himself had come to the conclu- sion that it had better be adjourned till Michaelmas Term, to be argued before the fifteen Judges, and that there could be no objection to this course, as the defendant was out on bail (a). (a) Although no judgment has further arguments of counsel, and been pronounced, it has been the decision of the fifteen Judges, thought advisable to report thus will be found in a later part of the much of this important case. The present volume. Ijul V<^ §-|S-. K CROWN CASES RESERVED. 395 REGINA V. HUGH MORGAN and JOHN 1854. MACKEOWAN. ' The following case was reserved for the opinion of Theprisoners 1 /-I p ^ ■ • 1 » 11 1 yii . f were charged the L/Ourt oi Criminal Appeal by the Uhairman or with steal-- the General Quarter Sessions of the peace held at Zl^TJ"^^ *■ r moneys ot Bourn, in and for the parts of Kesteven in the county Jane Jones. f. J- . J It appeared or ±.inC0Ln. that the pri- Hugh Morgan and John, Mackeowan were indicted f°["e'^eDre- for that they, on the 29th day of September 1854, sentations, feloni6usly did steal certain money of Jane Jones, of prosecutrix the monies goods and chattels of the said Jane Jones, ^^dress^r Upon the trial it was proved that Jane Jones, the 25s., promis- prosecutrix, lived at Stoke Hall, in these parts and would do so, county, as laundry maid, and it was also proved by they^'ould •'_.'_ r J give her her and Emily Smith, her fellow servant, that on another dress the 29th day of September 1854, the two prisoners xhey then came to Stoke Hall; that Morqan, who was dressed took a guinea as a sailor, represented himself to be a Frenchman hand, (she and unable to speak English, and that Mackeowan "Anting n°o"r" was his interpreter and would explain. Mackeowan resisting, but r ' ^ being taken explained that Morgan was a sea captain, and must by surprise), sell off his goods that night to get to his ship the next aVesswort^h mornine:. Morqan produced and offered the prose- much less " a r . .f, . , II- thanagvunea, cutrix a dress for sale, and signified, through his but refused interpreter, that the price was twenty-five shillings, the^a'I^ess^'^ and if she would give twenty-five shillings for it, he which they o •! = had promis- ed. Thejury, upon these facts, found the prisoners guilty. Held, that the facts warranted the finding, as the Court was bound to assume that the jury were properly directed, and that they found that it was part of the scheme of the prisoners to obtain the money by means of a pretended sale. VOL. I. G G 396 CROWN CASES RESERVED. 1854. would give her another dress worth twelve shillings, Morgan's which he also produced. The prosecutrix agreed, Cbe. ajj(j having one sovereign and one shilling in her pocket she took it out, and whilst holding it in her hand, Morgan opened her hand and took the guinea out of it. He did not take it forceably, nor would prosecutrix say that " it was against her will," " nor was it by her consent," — " he took her by surprise." Prosecutrix then borrowed four shillings of a fellow servant, but Morgan refused to take it, " for she had borrowed it," and, addressing the prosecutrix in Eng- lish, he said she was a bad woman and had told a lie and he should not produce the other dress ; he then laid down the dress first offered and packed up the other. Seeing the prisoners about to go away the prosecutrix told the prisoner, Morgan, she should send some one after him if he did not produce her dress ; he replied she might send for the Devil, and both prisoners went away. The prosecutrix sent to the constable and had both prisoners apprehended in a neighbouring village the same evening. Prosecu- trix believed the dress, left by the prisoners, to be of the value of fourteen shillings. Etnily Smith valued it at nine shillings. Upon these facts the jury found both prisoners guilty, and they were sentenced to three calendar months' imprisonment in the House of Correction ; and bail to appear and receive judgment not having been offered, they are now in prison upon such sentence. On the part of the prisoners it was contended that no felony was committed by them, that it was a mere breach of contract, that no felonious intent existed in their minds, and that the jury were not warranted, on the foregoing facts, in finding them guilty ; and a case was urgentl}' requested. CROWN CASES RESERVED. 397 The question I now most respectfully submit to the 1854 Court of her Majesty's Justices of either Bench, and morgan's the Barons of the Exchequer, is whether the above Case. facts warrant, in point of law, the finding of the jury in this case ? This case was considered on the 11th oi November 1854, by Jervis C. J., Alderson B., Coleridge J., Martin B., and Crowder J. No Counsel appeared either for the Crown or for the prisoners. Jervis C. J The question for our decision is, whether the facts stated in this case warranted, in point of law, the finding of the jury ? We think they did warrant that finding. The jury having found the prisoners guilty, we are bound to assume that the jury were properly directed by the Chairman, and that they found that it formed part of the scheme of the prisoners that the property was to be obtained by a pretended sale. In that case there was no contract, but only a fraud, by means of which the felony was committed. Conviction affirmed. REGINA V. RICHARD CLARKE. 1854. The following case was reserved for the opinion The prisoner of the Court of Criminal Appeal by Mr. Justice knowledge of Crowder. a married woman under Richard Clarke was tried before me at the York circum- Assizes on the 16th July 1854, on an indictment induced her to suppose he was her hus- band. The jury found that when he entered the bed of the prosecutrix he intended to have connection with her fraudulently, but not by force ; and if detected, to desist. Held, that the prisoner could not he convicted of a rape. G G 2 398 CROWN CASES RESERVED. 1854. charging him in the usual form with committing a Clarke's rape On the person of Jane Murgatroyd, the wife of ^''^^•' John Murgatroyd. It appeared in evidence that Jane Murgatroyd went to bed at half-past nine o'clock in the evening, leaving the outer door of her house unfastened, in the expectation of her husband's return home. Having fallen asleep, she was awakened at about half-past two o'clock by a man, whom she believed to be her husband, passing over her and getting into bed on tlie opposite side from that on which she was lying. She then fell asleep again, and in about ten minutes was awakened by the man in bed with her drawing her towards him, and having con- nection with her. She assented to the connection in the belief that the man was her husband. She after- wards fell asleep again, and awoke in about twenty minutes, and then first discovered that the man in bed with her was the prisoner at the bar, who, as soon as he found himself detected, jumped out of bed and went away. The jury found the prisoner guilty ; but they found also, that when he entered the bed of Jane Murgatroyd he intended to have connection with her fraudulently, but not by force, and, if detected, to desist ; whereupon I respited the judgment, reserving for the opinion of the Court of Criminal Appeal the question whether, upon the above state of facts and finding of the jury, the prisoner is entitled to an acquittal? This case was argued on the 11th of November 1854, before Jervis C. J., Alderson B., Coleridge J., Martin B., and Crowder J. Hall R. appeared for the Crow^n ; no Counsel appeared for the prisoner. Hall, for the Crown. It is true that it was held by CROWN CASES RESERVED. 399 a majority of the Judges in Rex v. Jackson (a) that 1854. having carnal knowledge of a woman under circum- Clarke's stances which induce her to suppose it is her husband, does not amount to a rape ; but four of the twelve Judges who considered that case thought that a carnal knowledge so obtained would be a rape, and though the other eight Judges thought it would not, several of the eight intimated, that if the case should occur again, they would advise the jury to find a special verdict. The facts in that casfe are not distinguishable from the facts in this; and although the decision in Hex V. Jackson has been followed in subsequent cases, the matter is still, I apprehend, open for argument, and I contend that the consent of the prosecutrix was not to the connection with the prisoner, but to a con- nection with her husband. She submitted to what she supposed to be the exercise of a legal right, and the prisoner cannot be allowed to take advantage of his own fraud. Jervis C. J. — We have conferred with several of the other Judges, and we think we cannot permit this question to be opened now, but are bound by the decision in Hex v. Jackson. The other learned Judges concurred. Conviction quashed. (a) Rus8. & Ry. 487. 400 CROWN CASES RESERVED. 1854. REGINA V. GEORGE HOBSON. ^. was in- The Chairman of the General Quarter Sessions of feionfou°sly the Peace for the West Riding of the county of York, receiving a reserved the following; case for the opinion of the watch and a n ^ ■ • i a j hat. It was Court ot Criminal Appeal. pXc'emS*in ^^^ prisoner, George Hobson, was tried at the West consequence Riding Quarter Sessions held at Rotheravi on the of informa- „„,t ^ ^^ , r r ^ • t tion received 30th June 1854, upon a charge or feloniously re- tMef)f went ceiving from William Levick, one watch, one hat, and to a room in one shilling, the property of Jawes 5w'^e«s^aw, and house where was found guilty and sentenced to be imprisoned and 8lept"and1n '^^P'^ *" ^^^^ labour in the House of Correction at ahoxinthat Wakefield for twelve calendar months. William. room found t./ii .i , . iii the hat. The -Levick had previously at the same sessions pleaded muTed'that" ^"'^'^3' *° ^^^ theft. Upon the trial William Laugjiton, the hat had a policeman proved that on the 8th day of June been brought , „ r i i , i • > i there by B., 1854 he went to the prisoners house in consequence knowled^'e^of ^^ Something he had heard from William Levick, the the watch. party charged in the indictment as the thief — that lowing day Levick took witness there — that witness asked the A was taken prisoner, who was in bed, if Levick had brought a hat into custody, , , , . and he then there — that the prisoner said " Yes" — that the pri- policem^n soner then got out of bed and took the hat out of a thatheknew box in a corner of the room, and gave the hat to wit- where the . Ill watch was, ness — that witness asked the prisoner if he knew but did not like to say anything about it before tlie people of the house. A. then took the policeman to a place where he said the watch was but it \yas not found there, but he afterwards sent a boy for the watch, and on the boy bringing the watch to the prisoner he gave it to the policeman. Held, that there was sufficient evidence to go to the jury. CROWN CASES RESERVED. 401 anything about the watch — that the prisoner said he 1854. did not — that witness went the next day to the pri- hobson's soner's house and took him into custody — that witness t;^^^- told the prisoner that he (witness) would most likely trace the watch and who had it — that when witness and the prisoner got outside the house, the prisoner said he did not like to say anything about the watch before the folks in the house, but he knew where it was, that it was planted, that it was at Mr. Wasten- holmes — that witness and the prisoner went to Mr. Wastenholmes, but could not find a watch there — that the prisoner then called for a boy and asked him to get the watch — that the watch was afterwards brought by the boy to the prisoner, who gave it to witness. On cross-examination, the witness said that the house where the prisoner lived was a lodging-house — that witness did not know whether the thief (Levick) lived there or not, or whether or not the prisoner had exclusive possession of the room where the hat was found — that witness did not notice how many beds were in the room where the hat was found — that when the prisoner said he knew nothing about the watch, there were several people in the house standing round him. It was objected by the prisoner's Counsel that there was no evidence to go to the jury ; first, as to the hat, because there was not sufiicient evidence of the prisoner's possession of it, the house where the hat was found being a lodging-house, and the prisoner having no exclusive possession of the room ; secondly, as to the watch, because the prisoner was not shewn to have had possession of it — all the evidence was, that the prisoner knew where the watch was. The Court overruled the objection, being of opinion that there was sufficient evidence to go to the jury, but granted a case for the opinion of the Judges. - 402 1854. Hobson's Case. CROWN CASES RESERVED. This case was considered on the 11th of No- vember 1854, by Jervis C. J., Alderson B., Cole- ridge J., Martin B., and Crowder J. No Counsel appeared either for the Crown or for the prisoner. Jervis C. J. — We all think that in this case there was evidence to go to the jury. Conviction affirmed. ]854. ^ /"aSLmj) 5 ^/(.^-'^-^ S r^' REGINA V. CATHERINE WEST. The prisoner The following case was reserved for the opinion of for'steSl the Court of Criminal Appeal, by /. HiUyard Esq. purse and its the Recorder of the borough oi Leicester. contents. . ^ • i . ■ j A purchaser Catherine West, the prisoner in this case, was tried sonerWaii before me at the Quarter Sessions of the peace, for left his purse the Said borough, held Midsummer 1854, upon an on It. The p,i .,. ni-i prisoner's at- indictment for simple larceny, in having feloniously stolen on the 27th day of May last, at the parish of Saint Martin in the said borough, one purse, five sovereign?, ten half sovereigns, eight half crowns, twenty shillings, and forty sixpences, the goods, chattels and moneys of William Evatt. tention was called to the purse by an- other person, apd she treat- ed it as her own and put it in her pocket, and afterwards concealed it. The prosecutor returned to the stall and asked the prisoner about the purse, but she denied all knowledge of it. The jury found that the prisoner took up the purse know- ing it was not her own and intending to appropriate it her own use ; but that she did not know who was the owner of the purse at the time she so took it. On this finding a verdict of guilty was recorded. Held, that the conviction was right inasmuch as the property was not lost property, but property mislaid under circumstances which would enable the owner to know where to find it, and that, therefore, it was unnecessary to inquire whether the prisoner, when she took the purse, reasonably believed that the owner could not be found. CROWN CASES RESERVED. 403 The prosecutor in making a purchase left his purse 1854. on the prisoner's stall, in Leicester market, unper- Best's ceived by either of them. A stranger pointed it out ^^^^■ to the prisoner and (supposing it to be her own) reproved her carelessness. She put the purse into her pocket and replied, " Yes, it is a wonder it was not gone before this." She took an early opportunity to conceal the purse, and, on the prosecutor returning to search for it, denied all knowledge of it. The Counsel for the prisoner relied upon Reg. v. Preston, 21 Law Journal, N. S., M. C. 41 (a), and Reg. v. Thurhorn, 1 Den. C. Cas. 387. I put two questions to the jury: First. Did the prisoner take up the purse know- ing that it was not her own, and intend at that time to appropriate it to her own use ? Secondly. Did the prisoner know who was the owner of the purse at the time she so took it? The jury answered the former question in the aflBrmative, and the latter in the negative ; and I thereupon directed a verdict of guilty against the prisoner to be recorded. I reserved a case for the opinion of the Court of Criminal Appeal, whether under the circumstances above stated the prisoner was properly convicted. The judgment upon the conviction was postponed, and the prisoner was discharged upon recognizance of bail, to appear and receive judgment at the Sessions, next after this case should be heard and decided. This case was considered on the 11th of November 1854, by Jervis C. J., Alderson B., Coleridge J,, Martin B., and Crowder J. No Counsel appeared either for the Crown or for the prisoner. Jervis C. J. — The question is whether under the («) S. C. 2 Den. C. C. 353. 404 CROWN CASES RESERVED. 1854. circumstances stated in this case, the prisoner was ZZ ; properly convicted of larceny, and we are all of Case. opinion that she was properly convicted. The prisoner keeps a stall in the Leicester market. The prosecutor went to that stall, left his purse there and went away. The purse was pointed out to the prisoner by another person, and she then put it in her pocket, and treated it as her own, and on the prosecutor returning to the stall and asking for the purse, she denied all know- ledge of it. Two questions were left to the jury, first, did the prisoner take the purse knowing that it was not her own, and intending to appropriate it to her own use? This the jury said she did. Secondly, did the prisoner then know who was the owner of the purse? This the jury said she did not. If there had been any evidence that the purse and its contents were lost property, properly so speaking, and the jury had so found, the jury ought further to have been asked whether the prisoner had reasonable means of finding the owner, or reasonably believed that the owner could not be found ; but there is in this case no reason for supposing that the property was lost at all, or that the prisoner thought it was lost. On the contrary, the owner having left it at the stall, would naturally return there for it when he missed it. There is a clear distinction between property lost and property merely mislaid, put down and left by mistake as in this case, under circumstances which would enable the owner to know the place where he had left it, and to which he would naturally return for it. The question as to possession by finding, therefore does not arise. The other learned Judges concurred. Conviction affirmed. CROWN CASES RESERVED. 405 REGINA 0. JAMES BEESTON. 1854. The following case was reserved for the opinion The prisoner of the Court of Criminal Appeal by Mr. Justice before ^it CrOMPTON. gistrate with James Beeston was tried before me at the last wounding^. Stafford Assizes on an indictment for the murder, aoWmgriU- and on the coroner's inquisition for the manslaughter, °^^ bodily of James Arkinstall. The prisoner had caused the thedeposi- death of the deceased by striking him on the head tlklf^fniir with a hammer; and between the blow and the death n & 12 Vict. c. 42 s. l7 the examination and deposition of the deceased had a. subs Ose- been duly taken before a justice of the peace, in the o^hewotnd presence of the accused, on the charge mentioned in and the pri- the heading of the deposition, which was, "For that dieted for his he, the said James Beeston, on &c., at &c., did un- S"w^5; , ' _ . . Held, that on lawfully, maliciously and feloniously, with a certain the trial of hammer, wound the said James Arkinstall, with intent for the mu7- then and there to do some grievous bodily harm to the ^".^^'^ ^%- ^ ° •' position of A. said James Arkinstall, contrary to the form of the might be read statute," &c. The Counsel for the prosecution offered a",tuhougV in evidence the deposition so taken ; and the Counsel *^^ deposi- , . , ... ... . tio° was not for the prisoner objected to its being received m evi- takenonthe dence, on the ground that the deposition was not taken ca" hlrge"as on the same charere for which the prisoner was on his thatforwhich . •I'll -I t"^ prisoner trial, and that the prosecution in which the trial was was indicted, taking place was not the same prosecution as that in fhnam"^^'^' which the deposition had been taken, within the words case, and the • prisoner had had full op- portunity for cross-examination. Semhle, that if the charge on the two occasions had been substantially different the deposition would not have been admissible. 406 CROWN CASES RESERVED. 1854. Beeston's Case. of the statute 11 & 12 Vict. c. 42, s. 17 fa), " in such prosecution;" which, he contended, only allows such a deposition to be read on a trial for the very same offence with which the prisoner is charged when the deposition is taken : and he relied on the case of Regina v, Ledbetter, 3 Car. & Kir. 108. I thought it best to take the course adopted in the case of Regina V. Dilmore, 6 Cox Cr. C. 52, and received the depo- sition in evidence. The prisoner was convicted and sentenced to fifteen years' transportation ; but I now state this case for the opinion of the Court of Criminal Appeal ; the question being, " Whether the deposition (a) The section referred to is as follows : " That in all cases where any person shall appear or be brought before any justice or jus- tices of the peace charged with any indictable offence, whether com- mitted in England or Wales or upon the high seas or on land beyond the sea, or whether such person appear voluntarily upon summons or have been appre- hended with or without warrant or be in custody for the same or any other offence, such justice or jus- tices before he or they shall com- mit such accused person to prison for trial, or before he or they shall admit him to bail, shall in the presence of such accused person, who shall be at liberty to put questions to any witness produced against him, take the statement on oath or affirmation of those who shall know the facts and circum- stances of the case, and shall put the same into writing, and such depositions shall be read over to and signed respectively by the witnesses who shall have been so examined, and shall be signed also by the justice or justices taking the same; and the justice or justices before whom any such witness shall appear to be examined as aforesaid, shall before such witness is examined administer to such witness the usual oath or affirma- tion which such justice or justices shall have full power and authority to do ; and if upon the trial of the person so accused as first aforesaid it shall be proved by the oath or affirmation of any credible witness that any person whose deposition shall have been taken as aforesaid is dead or so ill as not to be able to travel, and if it also be proved that such deposition was taken in the presence of the person so accused, and that he or his counsel or at- torney had a full opportunity of cross-examining the witness, then if such deposition purport to be signed by the justice by or before whom the same purports to have been taken, it shall be lawful to read such deposition as evidence in such prosecution without further proof thereof, unless it shall be proved that such deposition was not in fact signed by the justice purporting to sign the same." CROWN CASES RESERVED. 407 taken on the charge of maliciously wounding, with 1854. intent &c., was properly received in evidence?" Beeston's Case. This case was argued on the 11th of November 1854, before Jervis C. J., Ajlderson B., Coleridge J., Martin B. and Crowder J. jScoiZawflf appeared for the Crown, and Huddleston for the prisoner. Huddleston, for the prisoner. First, the deposition was not admissible independently of the statute 11 & 12 Vkt. c. 42, s. 17 ; and, secondly, it was not admissible by force of the provisions of that statute. The same question which arises in this case was argued before Greaves Q. C. in Reg. v. Ledhetter and Others (a) ; and the deposition was, in that case, held to be inadmissible. Jervis C. J. — I thought the deposition was clearly admissible before the statute. Huddleston. I submit not, and that the statute is merely declaratory of the common law. In Mea? v. Smith {b), which was before the statute, a deposition taken on a charge of assault and robbery, was ten- dered on the trial of the prisoner for murder, and was received ; but although a majority of the Judges afterwards held that it was properly received, several of the Judges said that they should have doubted except for the previous decision in Rex v. JRad- bourneic), where the deposition of a woman who had been severely wounded, taken in the presence of the person accused of such wounding, was held admissible in evidence against the same person on his trial for murder. This case was before the recent statute, and it was contended that the deposition was admissible (a) 3 Car. & Kir. 108. (6) Russ. & R. 339- tc) 1 Leach C. C. 457- 408 CROWN CASES RESERVED. 1854. under the statutes of Philip and Mary, but it does not Beeston's appear from the case whether the Judges held it to be admissible on that ground, or as a dying declara- tion. The case of Reg. v. Ledhetter (a) is since the statute 11 & 12 Vict. c. 42, and the judgment of Mr. Greaves in that case was given after consulting Lord Campbell C. J. and Williams J. There the indict- ment was for feloniously wounding, and the depo- sition, which had been taken on a charge of assault, was rejected, although on both charges the trans- action was the same, on the ground that the prisoner might not have had a full opportunity of cross- examination. Alderson B. — In Rex v. Smith, in the absence of the prisoner, part of the deposition of the witness was taken and written down. The prisoner was then called in, and what had been previously taken down was read over to the witness in the prisoner's pre- sence, and the witness was asked if it was true, and then the examination went on. I was Counsel for the prisoner, and I contended, on the authority of Bex v. Forbes (6), that the deposition was not admissible, as the prisoner had not a sufficient opportunity of cross- examination ; that he had no opportunity of hearing the witness give his answers, and seeing his manner of answering ; and that so much of the evidence as had been taken in the prisoner's absence was inad- missible ; and I still think I was right in that objection. Huddleston. In this case, questions which the prisoner might have put relevant to the charge of murder, might possibly have been stopped by the justice as irrelevant to the charge of wounding. The words of the statute, "in such prosecution," only (a) 3 Car. & Kir. 108. (6) Holt N. P. C. 599. CROWN CASES RESERVED. 409 enable the depositions to be read on a trial for the 1854. very same offence as that with which the prisoner was Beeston's charged before the justice ; and in this case the '^^®®- charge before the justices was for wounding only, and the indictment on the trial was for murder. Alderson B. — Can you suggest any question material on the one charge and not on the other ? Huddleston. In the present instance it may be difficult to do so, but such a case might easily occur. There are questions which arise on a charge of murder or manslaughter only, such as whether the wound in- flicted was the cause of death, which although very material on a charge of murder, would be immaterial on a charge of wounding only. Suppose a prisoner before a justice on a charge of wounding, wished to direct attention to something connected with the health of the person wounded, and to cross-examine as to whether he was subject to some internal disease. The magistrate might say here is a man wounded in the arm, and you are charged with wounding him, you must not ask if the man has been subject to erysipelas, for that question is not relevant to the wounding ; and yet if erysipelas ensued, and the man died, it might on the charge of murder be most material to know whether the erysipelas was caused by the wounding, or by the suggested internal disease ; and yet upon that part of the case, the prisoner would not have had the full opportunity of cross-examination. The words of the statute clearly import that the de- positions are only to be admissible on the same technical charge ; and before the statute, it was de- cided in Helen v. Andrews (a), that even when a party had an opportunity of cross-examination, a de- (a) Moo. & Mai. 336. See also 33 ; Finden v. Westlake, Moo. & R. V. Appleby, 2 Stark. N. P. C. Mai. 461. 410 CROWN CASES RESERVED. 1854. position was not admissible when taken in a different Beeston's judicial inquiry. In that case Parke J. says, " I Case. think it is the safer course to hold that the deposition of a witness taken in a judicial proceeding is not evidence, on the ground that the party against whom it is sought to be read was present, and had the op- portunity of cross-examination. It clearly would not be evidence against a third person who merely hap- pened to be present, and who being a stranger to the matter under consideration, had not the right of inter- fering, and I tliink the same rule must apply here. It is true that the plaintiff might have cross-examined or commented on the testimony ; but still on an in- vestigation of this nature, there is a regularity of proceeding adopted, which prevents the party from interposing when aud how he pleases, as he would in a common conversation. The same inferences therefore, cannot be drawn from his silence or his conduct in this case, which generally may in that of a conversation in his presence; and as it is only for the sake of these inferences that the conversation can ever be admitted, I think it better to refuse the evidence now offered." This decision was after- wards referred to, and not disapproved in Finden v. Westlake (a). Jervis C. J. — Would a deposition taken before a coroner, be admissible on a subsequent trial for murder ? Huddleston. Parke J. A. J. refused to receive such a deposition in Rex v. Wall (h). I submit that (a) Moo. & M. 464. trate is admissible is, that the pri- (S) 2 Greaves' Russ. 893. The soner, being there to answer a reasons why such a deposition charge, has the right to cross-exa- would not be admissible are thus mine the witnesses. In many cases given in the following note by the before coroners, even if the prisoner learned editor : " The ground on be present there is no charge, and which a deposition before a magis- perhaps no suspicion against him. CROWN CASES RESERVED. 411 neither without the statute nor with its aid was this 1854. deposition admissible. Persons when before magis- beeston's trates frequently do not, through ignorance and fear, Case. know what questions they may legally put to the witnesses ; and before a deposition can be admissible against a prisoner on his trial, it must at all events be shown, that when it was talsen he had the fullest opportunity of cross-examination. Scotland, for the Crown, was not called upon. Jervis C. J. — We are unanimously of opinion that this deposition was under the circumstances admissible in evidence against the prisoner. Notwithstanding the decision in Reg. v. Ledbetter (a), it is quite clear that before the passing of the 11 & 12 Vict. c. 42, the deposition would have been admissible, and on this point the cases are all one way. In Rex v. Rad- bourne{h), the deposition of a deceased person was read on a trial for the murder of that person, and the decision in that case was acted upon in Rex v. Smith (c). There, upon a trial for murder, the deposition of the deceased before a magistrate on a charge of assault against the prisoner was received in evidence, and upon a question submitted for the consideration of the Judges, ten of the eleven Judges who met and con- sidered the case held that the deposition had been properly received in evidence. It is true, that in that case some of the Judges seem at first to have doubted as to the admissibility of the evidence ; but they might well have done so without reference to the question now under discussion, for it is quite possible they might have thought that the prisoner had not in that and it may be doubted whetber unwarranted interruption of the in strictness under any circum- proceedings." stances hebas a right to cross-exa- (a) 3 Car. & Kir. 108. mine the witnesses ; and if there (6) 1 Leach C. C. 408. were no charge in fact made against (c) Russ. & Ry. C. C. R. 333 j him bis interference would be an S. C. 2 Stark. N. P. C, 208. VOL. I. H H 412 CROWN CASES RESERVED. 1854 case had sufficient means of cross-examination; but Bbeston's be this as it may, the Judges at all events held them- Case. selves bound by the previous decision in Rex v. Rad- boarne, and there is no reason why we, fortified as we are by a second decision, should depart from the convenient rule of abiding by decided cases ; therefore, independently of the statute, we think that the deposi- tion in this case would have been admissible, and there is nothing in the statute (a) to render it inadmissible, or to restrict the rule which had been established by practice since the statutes of Philip Sf Mary (6). The statute (ct) provides, that if upon the trial of "the person so accused as first aforesaid," that is, accused of or charged with " any indictable off'ence," it is proved that any person whose deposition shall have been taken in the manner previously pointed out is dead, and that such deposition was taken in the presence of the person " so accused," and that he or his counsel or attorney had a full opportunity of cross- examining the witness, then if such deposition purport to be signed by the justice by or before whom the same purports to have been taken, it shall be lawful to read it in evidence in such prosecution. This enactment has not altered the previously existing rule, but has added a different class of cases in which depo- sitions are to be admissible, and has introduced in terms the principle that the prisoner should have the full opportunity of cross-examination, which he formerly had only by the -equitable construction of the law. The Legislature has provided, that the person against whom the deposition shall be received in evidence, shall be a person charged with " an indictable offence;" (a) 11 & 12 Vict. c. 42, s. 17, ante, p. 406. (6) 1 &2P.Sf M. c. 13, and 2 & 3 P. 4- M. c. 10. CROWN CASES RESERVED. 413 that the persons whose evidence is to be taken shall 1854. be " those who shall know the facts and circumstances "17117777.7 of the case" not of the particular technical charge on Case. which he is afterwards tried ; and then it says, that if the witness be dead the deposition may be admissible " on the trial of the person so accused," not on his trial for the particular offence with which he was charged before the magistrate ; and though the charge at the trial be not identically the same as that made when the deposition was taken, no harm can result from holding it admissible, because it would always be matter for enquiry by the Judge trying the case, whether the prisoner had had a full opportunity for cross-examination, if the charge on which the deposition was taken was not identical with that stated in the indictment. We ought not to restrict the operation of this salutary statute ; but I do not mean to say that a deposition would be admissible if the charges on the two occasions were substantially different. Alderson B I agree in the opinion expressed by the Lord Chief Justice. The question is not whether the charge made on the enquiry before the magistrate was exactly the same as that made on the trial, but whether the enquiry was such as afforded to the party accused the full opportunity of examination, lu Reg. V. Ledbetter, it might very well have been that a full opportunity of cross-examination was not afforded, and I therefore do not say whether Mr. Greaves was or was not wrong in rejecting the deposition in that case. On a charge for a common assault, the wound- ing subsequently charged in an indictment might not have been material ; but here the whole of the cir- cumstances which came before the Court at the trial were before the magistrate, with the single exception of the death of the deceased ; and the prisoner's oppor- H H 2 414 CROWN CASES RESERVED. 1854. tunity of cross-examiriTng was so complete, that Mr. Bebston's Huddlestons, ingenuity could not suggest a question ^^^^- in the one enquiry which would not have been so on the other. If the construction we are now putting on the statute be not the true one, the deposition of a living man taken before a magistrate could in no case be used against the prisoner after the death of the witness on an inquiry respecting such death. Coleridge J. — I am of the same opinion, and have nothing to add except that if we decided the other way the provisions of the statute would be altogether useless in all cases of manslaughter or murder, where death ensued subsequently to the taking of the depo- sitions. Martin B. — I also agree with the rest of the Court. The deposition in this case was clearly admis- sible at the common law, and our decision is in ac- cordance with the cases of Rex v. Madbourne, and Hex V. Smith. The statute was not intended to re- strict the operation of the common law ; but I am clearly of opinion that upon the language of the statute itself the deposition was admissible. It is quite a mistake to suppose that the words " as evi- dence in such prosecution" necessarily mean " on the same identical charge." Crowder J. — I am also of opinion that the depo- sition was admissible in evidence at common law, and under the statute. The object of the statute was rather to extend the operation of the common law than to restrict it. Conviction confirmed. CROWN CASES RESERVED. 415 REGINA V. HENRY SHARPE, GEORGE 1854. CHARLES and HENRY BROWN. The following case was reserved for the opinion Thoiathsec- of the Court of Criminal Appeal by Mr. Serjeant statute 7 Geo. Adams the assistant Judge of the Middlesex Sessions. *> f- ^V^ . ° not confined Henry Sharpe and George Charles were indicted initsopera- at the Middlesex October Quarter Sessions 1854, carriages of held at Clerkenwell, and tried, before me, for stealing common ear- ' ' = riers or to a quantity of oats and beans, the property of their public con- employers the Great Northern Railway Company, and burifpro- Henry Brown was indicted for feloniouslv receivinfj perty is stolen the same. ' carriage em- It appeared in evidence that the two prisoners Lurney"the^ Sharpe and Charles were carmen of the company, offender may, and that on the morning of tlie 18th of September that section, they left the Great Northern Station, in tlie county ^ny county of Middlesex, with a waegon belonging to the Com- through any . , ,. . ** ^ ■^ ■ Ti' / • , part whereof pany, with directions to proceed with it to vvoolwich,, such carriage in the county of Kent, and that before they started pafgedirthe the usual quantity of oats and beans and chaff, for course of the , „ , , . ^ , , journey dur- provender tor the horses, was given out to them and ing which put into the waggon in nosebags. It was then proved ^Jj^jj ^g^g'^^ that, on the arrival of the waggon at the Antigalican been com- Public House in Woolwich, the two prisoners, Sharpe ™^ and Charles, took the nosebags from the waggon and delivered them, with their contents, to the prisoner Henry Brown, who was the ostler at the said public house, and that he gave them sixpence for the same. The jury found all the prisoners guilty, and they were 416 CROWN CASES RESERVED. 1854, sentenced respectively to different terms of imprison- Sharpe's ment, and committed to the House of Correction at Case. Coldbath Fields, to abide the decision of the Crimi- nal Court of Appeal upon the point reserved for its consideration ; that point being, whether the case falls within the provisions of the statute 7 Geo. 4, c. 64, s. 13. This case was argued on the 1 1th of November 1854, before Jervis C. J., Alderson B., Coleridge J., Martin B. and Crowder J. No Counsel appeared for the Crown. Parry ap- peared for the prisoners. Parry, for the prisoners. This is entirely a ques- tion of venue, and the point to he decided is whether, under the circumstances stated, the Judge had juris- diction to try the case. No doubt the prisoners ought to have been tried in the county oi Kent, the county in which the offence was committed, unless the 13th section of the statute 7 Geo. 4, c. 64 applies, and I have to submit that that enactment is limited to public conveyances and the carriages of common carriers. I can find no authority upon the point, but the section enacts, " that where any felony, or miS" demeanor shall be committed on any person or on or in respect of any property in or upon (a) any coach, waggon, cart or other carriage whatever employed in any journey, or shall be committed on any person or on or in respect of any property on board any vessel whatever employed on any voyage or journey upon any navigable river, canal or inland navigation, such felony or misdemeanor may be dealt with, inquired of, tried, determined and punished in any county through any part whereof such coach, waggon, cart, (o) As to the effect of the words " in or upon " in this section, see Rex V. Sharps, 2 Lewin, 233. CROWN CASES RESERVED. 417 carriage or vessel shall have passed in the course of 1854. the journey or voyage during which such felony or sharpb's misdemeanor shall have been committed, in the same Case. manner as if it had been actually committed in siich county." If the waggon, in this case, was " em- ployed" in a journey within the meaning of this section, no doubt the prisoners were properly tried in Middlesex, but I submit that the enactment was only intended to apply to carriers and to public convey- ances, and that the prisoners ought to have been tried in the county of Kent. Jervis C. J The enactment is general, and ap- plies to any carriage whatever employed in any journey. The object of the statute was to enable a prosecutor, whose property is stolen from any carriage on a journey, to prosecute in any county through any part of which the carriage shall have passed iu the course of that journey; because, in many cases, it might be quite impossible for a prosecutor to as- certain at what part of the journey the offence was actually committed. The other learned Judges concurred. Conviction affirmed. 418 CROWN CASES RESERVED, /} 1854. REGINA V. JOHN ROBirS. / ■^ rj. A quantity of The following case was reserved for the opinion of Ae'^osles-'" *''^ Court of Criminal Appeal, by W. H. Bodkin Esq., Bionofthe sitting for the assistant Judge of the Middlesex prosecutors q asbailees.and OeSSlOnS. wasdeposited j-^Ab Robms wBs tried at the Middlesex Sessions, in ODe 01 their storehouses, in September 1854, upon an indictment which charged care of one him with Stealing five quarters of wheal the property vanu'who" ^^ ^^® masters, George Swayne and another, had authority The wheat in question was not the property of the o-aXymlhe prosecutors, but part of a large quantity consigned to order of the their care and deposited at one of their storehouses. prosecutors ' or their This Storehouse was in the care of Thomas JSastwick, clerk.^ The ^ servant of the prosecutors, who had authority to f prisoner, who deliver the wheat onlv on the orders of the prosecutors, was also a •' / , servantofthe or of a person named Callow, who was their managing prosecutors. i i by a false CierK. f statement. It was proved that on the 24th of June the prisoner, induced the ' r ' servant, un- wlio was a servant of the prosecutors, at another care'thr^ Storehouse,- came to the storehouse in question accom- wheatwas, panied by a man with a horse and cart, and obtained to allow him , , p , , . ^ . , , to remove the key ot the storehouse from Eastwick by repre- wheatl which senting that he, the prisoner, had been sent by the he carried managing clerk Callow for five quarters of wheat, away and ap- i . , i propriatedto which he was to carry to the Brighton Railway. He?d"thaT^' Eastwick, knowing the prisoner, and believing his under these statement, allowed the wheat to be removed, the circum- . . , . . . , . , . stances the prisoner assisting to put it into the cart in which it ''ro Tr" con- ^'^^ conveyed, from the prosecutors' premises, the victed of prisoner going with it. It was also proved that Callow arceny. j^^j given no such authority, the prisoner's statement CROWN CASES RESERVED. 419 being entirely false, and that the wheat was not taken 1854. to the Brighton Railway, but disposed of, with the ~s^^^^^ privity of the prisoner, by other parties who had been Case, associated with him in the commission of the offence. The Counsel for the prisoner contended that the wheat was obtained by false pretences, but the jury were directed, if they believed the facts, that the offence amounted to larceny, and they found the prisoner guilty of that offence. The prisoner was sentenced to twelvemonths' imprisonment, and is now confined in the House of Correction at Coldbath Fields in execution of that sentence. I . have to ask this Honourable Court, whether the verdict was right in point of law ? This case was argued on the 11th oi November 1854, before Jervis C. J., Alderson B., Coleridge J., Martin B. and Crowder J. Sleigh appeared for the Crown, and Metcalfe for the prisoner. Metcalfe, for the prisoner. In this case the pri- soner obtained the wheat by means of a false pre- tence, and was not guilty of larceny. The general rule is, that in larceny the property is not parted with, and in false pretences it is. Here the prose- cutor parted with the property in the wheat. Alderson B. — It was delivered to the prisoner for a special purpose, namely, to be taken to the Brighton Railway. Jervis C. J He gets the key by a false pretence, and commits a larceny of the wheat. Metcalfe. Eastwick had the sole charge of the wheat ; and although it was not delivered to the pri- soner by the hand of the master, the delivery by Eastwick must be taken to be a delivery by the 420 CROWN CASES RESERVED. 1854. master. The decision in Regina v. Barnes (a) is in RoBiNs's favour of this proposition. There the chief clerk of ^^^^- the prisoner's master, on the production by the pri- soner of a ticket, containing a statement of a purchase which, if it had been made, would have entitled the prisoner to receive 2s. 3d., but which purchase had not in fact been made, paid the prisoner the 2s. Bd., and it was held that the prisoner was not indictable for larceny, but for obtaining money under false pretences. Alderson B. — That is simply the case of one ser- vant being induced to give the property of the master to another servant by means of a false pretence ; but here the property remained in Swaine throughout as bailee. Suppose the prisoner had been really sent by Callow, and had not been guilty of any fraud, but on his way to the railway had been robbed of the wheat, could not the wheat have been laid in Swaine? Metcalfe. Swaine was the bailee of the consignor ; he had only a special property, and that special pro- perty he parted with to the prisoner, Martin B. — For the purposes of this case Swaine was the owner of the wheat. Alderson B. — If the prisoner had told the truth, and, having obtained the wheat without making any false pretence, had subsequently dealt with it as he has done, he would, without doubt, be guilty of lar- ceny ; and can it be said that he is not guilty of lar- ceny, simply because he told a falsehood ? Sleigh, for the Crown, was not called upon. Conviction affirmed. (a) 2 Den. C. C. 59. CROWN CASES RESERVED. 421 REGINA V. WILLIAM SIMPSON. 1854, The following case was reserved for the opinion of The prisoner the Court of Criminal Appeal by W. H. Bodkin Esq., frsSf acting; as assistant Judge of the Middlesex Sessions. from the per- vvtuiaTn bimpson was tried berore me at the Sessions peared that of the Peace for the county 0^ Middlesex, in July 1854, Jor wrrieT" upon an indictment which charared him with having hiswatchin stolen from the person o^ Michael Mapper a gold watch pocket fast- and chain, his property. The watch was carried by chain*which the prosecutor in the pocket of his waistcoat, and the "'''^^ passed 1 • 1 • 1 1 II 1 1 through a chain, which was at one end attached to the watch, button-hole was at the other end passed through the button-hole cL^andkept of his waistcoat, where it was kept bv a watch key, there by a , ,,.,.*. , , watch key at turned so as to prevent the chain slipping through, the other end The prisoner took the watch out of the prosecutor's "o turne^d^'a"' pocket, and forcibly drew the chain out of the button- to prevent hole ; but his hand was seized by the prosecutor's wife : from slipping and it then appeared that, although the chain and prisonJr'^took watch key had been drawn out of the button-hole, the the watch out point of the key had caught upon another button, and and forcibly was thereby suspended. It was contended for the ^^ain'and prisoner that he was guilty of an attempt only ; but I key out of thought that, as the chain had been removed from the hole; but the button-hole, the felony was complete, notwithstanding ^°'"^°y ^^^ its subsequent detention by its contact with the other upon a hut- button. The jury found the prisoner guilty of the prisoner's felony, and, a former conviction having been proved, ^g^j"g/t""^ watch re- mained there suspended. Held, that the prisoner was properly convicted of stealing the watch and chain from the person of the prosecutor. 422 CROWN CASES RESERVED. 1854. he was sentenced' to penal servitude for four years. Simpson's The execution of the sentence was respited, and the Case. prisoner was committed to the House of Correction, Coldbath Fields, where he now is. I have to pray the judgment of this Honourable Court, whether the facts above stated justify the conviction in point of law ? This case was argued on the 11 th o^ November 1854, before Jervis C. J., Alderson B., Coleridge J., Martin B. and Ckowder J. Payne appeared for the Crown, and Parry for the prisoners. Parry, for the prisoner. The conviction was wrong. There may have been a simple larceny, but the asportation was not sufiBcient to warrant a conviction for stealing from the person. The watch chain, though drawn out of the button-hole, caught on the button, and the property never was entirely severed from the prosecutor's person. Alderson B. — Whilst it was between the button and the button-hole, where was it? Parry. It was about the person of the prosecutor. The watch always remained about his person, and its ultimate condition was that it was suspended from the button — it never was finally and entirely re- moved from the person of the prosecutor. In Rex V, Wilkinson (a), where a thief took, from the pocket of the owner, a purse, to the strings of which some keys were tied, and was apprehended with the purse in her hand, but still hanging by means of the keys to the pocket of the owner, it was ruled not to be larceny, for the prosecutor had still, in law, the possession of the purse, and licet cepit non asportavit. Coleridge J. — In that case there never was a (a) 1 Hale P. C. 5o8, 40 Eliz., cited M. 8 Jac. C. B. CROWN CASES RESERVED. 423 severance, here there was, and the case expressly 1854. 'speaks of the " subsequent detention" of the chain. Simpson's Parry. It is not necessary for me to go so far C»*«- as that case, because it may be conceded that, in this case, there was a sufficient asportation to support a charge of simple larceny. Alderson B, — The nearest case to the present one seems to be Rex v. Thompson (a). Parry. In that case a pocket-book was drawn by the prisoner out of the owner's inside coat pocket, and lifted one iach above the top of the pocket, and then the hand of the thief being caught, it fell back into the pocket ; and, though all the Judges held it larceny, they were divided whether it was a stealing from the person, as the pocket-book remained about the person of the owner ; and the majority of the Judges held that it was not. Alderson B. — How do you distinguish this case from Rex v. Lapier (b), in which the ear-ring was torn from a lady's ear and fell upon her curl ? Parry. There the forcing it from her ear was a severance from her person, but I contend that in this case there was no actual severance. There is a case of Rex v. Farrellifi), where it appeared that the prisoner stopped the prosecutor as he was carrying a feather bed on his shoulders, and told him to lay it down or he would shoot him, and the prosecutor accordingly laid the bed on the ground, but the pri- soner was apprehended before he could remove it from the spot where it lay ; and the Judges were of opinion that the offence of robbery was not completed. All the cases shew the wide distinction between a simple larceny and a stealing from the person. The distinction is one which ought to be considered strictly (a) 1 Ry. & Moo. 78. (b) 1 Leach C. C. 60. 3 ,Zl'> } (e) 1 Leach C.C. 3&2.( 112- 1 424 CROWN CASES RESERVED. 1854. in favour of a prisoner, and although this case may Simpson's ^^ '^^ ^^^ ^^ry confines of a severance, I contend that ♦ Case. no actual severance ever took place. Payne, for the Crown, was not called upon. Jervis C. J. — We are all of opinion that the con- viction was right. This case is in no respect like that mentioned by Lord Hale, where the prisoner took the purse attached by its strings to the keys which were entangled in the pocket of the prosecutor ; in that case there was at no moment the slightest severance from the person ; but this is precisely similar to Lapier's case, in which the jewel was torn from the ear of the prosecutrix, and dropped amongst her curls. The ear in Lapier's case is like the button-hole in this, and the curl is like the button below. The watch was no doubt temporarily, though but for one moment, in the possession of the prisoner. In Thomp- son's case there seems to have been some confusion in the use of the expression " about the person." The words of the act are "from the person," and with sub- mission to the majority of the Judges who held the asportation in that case not to be sufficient, I think the minority were right. The Judges in that case may have thought that the outer coat which covered the pocket formed a protection to the pocket-book ; but we must not fritter away the law by refining upon nice distinctions in a way to prevent our decisions from being consistent with common sense. Alderson B. — To constitute the offence there must be a removal of the property from the person ; but a hair's breadth will do. The other learned Judges concurred. Conviction confirmed. . CROWN CASES RESERVED. 425 REGINA V. WILLIAM CORNISH. 1854. The following case was reserved for the opinion of The prisoner the Court of Criminal Appeal, by the Chairman of eTof "larceny the Quarter Sessions for the county of Cornwall. underthefoi- rpi • TT7-'i7 lowing cir- Ihe prisoner, William Cornish, was tried at the cumstances. Michaelmas Sessions 1854, for the county of Cora- las rcom-'' ■wall, upon an indictment charffina: him, iointlv with '°on carrier rp,, -f. , . , o o 'J J and was em- 1 nomas Moscorla, with stealing on the 6th day of ployed by the October then instant, at Saint Columb, in the county toTarry^ of Cornwall, two tons of coal, the property of William cargo of coals ■n J r^ i , , r r J ixom a ship ford {jreake, and others. toacoalyard. The prosecutor contracted with the prisoner William anoAeryard" Cornish, who keeps carts and horses, and hires himself belonging to . . „ , the prosecu- out as a common earner, to carry a cargo of coals tor. Thepri- from a ship at Forth, in the said county, to a coal the'Joak to^ yard there, which the prosecutor rented for the pur- ttefirst men- pose of lodging the coal, and from thence to carry the yard, and was coals to a yard of the prosecutor's, in the town of sevemfdlys Saint Columb aforesaid, a distance of about six miles. >" carting The prisoner, William. Cornish, employed the said thence to the Thomas Roscorla, who also keeps a cart and horses, other"'rd'^ to assist him. The coals were unloaded by them and He left the carted to the prosecutor's yard at Forth aforesaid, tione^coli The prisoner, William Cornish, was engaged for several of'j^o'e d"^ days carting the coals from thence to the prosecutor's withtwocarts yard at Saint Columb, and on the day mentioned in all laden^with coals J before he arrived at the other yard he delivered the two cart loads to a third person on his own account ; but h^duly delivered the wagon load at the prosecutor's other yard. Held, that the conviction was wrong, the coals having been delivered to the prisoner as a carrier, and there having been no breaking of bulk or other determination of Ihe bailment. 426 CROWN CASES RESERVED. 1854. the indictment, he left the yard at Forth, with his son "cornish's ^^^ the said Thomas Boscorla, driving two carts and Case. ong wagon laden with coals towards Saint Columb. When near the top of the town of Saint Columb, the prisoner, William Cornish, directed his son and the said Thomas Roscorla to take the two cart loads of coal to a Mr. Davey (who had not ordered them), where the prisoner, William Cornish, also went and delivered the coal, putting the value of the coal to an account he had with Davey. He the prisoner, Wil- liam Cornish, delivered the waggon load of coals at the prosecutor's yard in Saint Columb. No commu-. nication was made by the prisoner that he had so done to Mr. Geake, the prosecutor. It was objected by the Counsel for the prisoners, that under these circumstances no larceny was com- mitted by them. I reserved the point. The jury found the prisoner, William Cornish, guilty. Thomas Roscorla was acquitted. Judgment on the prisoner, William Cornish, was postponed, and he was subse- quently discharged on recognizance of bail to appear and receive judgment. I have to request the opinion of the Court of Criminal Appeal whether the con- viction can be supported. This case was considered on 2nd'December 1854, by Jervis C. J., Pollock C. B., Parke B., Maule J., WiGHTMAN J., Erle J., Platt B. and Crompton J. No Counsel appeared either for the Crown, or for the prisoner. Jervis C. J. — The conviction cannot be supported. It is expressly stated in the case that the coals were delivered to the prisoner as a carrier. He was a bailee of the coals, and his dishonest delivery of the two cart loads to Mr. Davey does not make him guilty of larceny. CROWN CASES RESERVED. 427 Parke B. — It is quite clear there was no breaking 1854. of bulk so as to determine the bailment. Cornish's The other learned Judges concurred. Case. Conviction quashed. REGINA V. WILLIAM FERGUSON. 1855, The following case was reserved for the opinion of The prisoner the Court of Criminal Appeal by i?. B. Armstrong was indicted , ^'^ •' ''in one count Esq., Recorder of the city oi Manchester. for felonious- William Ferguson^ was tried before me at the sessions the wTsecu- for the city oi Manchester, in November 1854, on the tor with in- /.,,..,. , . tent to steal following indictment, that is to say : the moneys City of Manchester in the") The jurors for our lady theprosecu- county of Xaracasfer to wit. r the Queen upon their t"""! ^°^|° the second oath present that William Ferguson late of the city of count for the Manchester in the county of Lancaster laborer on the "/attempting twenty-sixth day of October in the eighteenth year of to steal the • 1 1 T7- • 1 1 p A 1 (. same moneys our sovereign lady Victona by the grace 01 Grod or and goods. the United Kingdom of Great Britain and Ireland ^^'fjinT' Queen defender of the faith with force and arms at guilty on the , . « . , . , » . , , . , . first count, the city aloresaid in the county aforesaid and within whereupon the jurisdiction of this Court in and upon one William nJoyed"in^^ Edward Williams in the peace of God and of our arrest of 11 r\ 1 II 1- ci. ii.i judgment, on lady the Queen then and there being teloniously did the ground make an assault with intent the money goods and jjct'j^ent'was chattels of the said William Edward Williams from bad, by rea- son of a mis- joinder of counts. Held, that the ohjection was unfounded, and that the prisoner was properly convicted. VOL. I. I I 428 CROWN CASES RESERVED. 1855. the person and against the will of him the said William Ferguson's Edward Williams then and there feloniously and Case. violently to 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. And the jurors aforesaid upon their oath aforesaid do further present that the said William Ferguson on the said sixteenth day of October in the eighteenth year of the reign aforesaid with force and arms at the city aforesaid in the county aforesaid and within the jurisdiction aforesaid unlawfully did attempt and endeavour feloniously then and there to steal take and carry away the moneys goods and chattels of the said William Edward Williams from the person and against the will of the said William Edward Williams against the peace of our lady the Queen her crown and dignity. Tried: guilty of an assault with intent to steal: twelve calendar months' hard labour. The jury found a verdict of guilty of an assault, with intent to rob, and thereupon the learned Counsel for the prisoner moved in arrest of judgment that the indictment was bad by reason of the misjoinder of counts, and that no judgment thereon could be sus- tained. 1 thought that the objection ought to have been taken earlier, but said that I should ask for the opinion of the Court of Criminal Appeal upon the point. I sentenced the prisoner to twelve calendar months hard labour in the gaol of the city of Manchester ; and the question for the opinion of this Court now is, whether, upon the indictment above set forth and the verdict of the jury so found thereon, such sentence was warranted ? CROWN CASES RESERVED. 429 This case was considered on the 20th of January 1S55. 1855, by Lord Campbell C. J., Colekidge J., Ferguson's Cresswell J., Platt B. and Williams J. *^^^^- No Counsel appeared either for the Crown or for the prisoner. Lord Campbell C. J. — There really is no difficulty in the world in this case ; and I must say that I regret that the learned Recorder, for whom I have a great respect, should have thought it necessary to reserve it. The question is, whether the indictment was bad on account of an alleged misjoinder of counts. The pri- soner was convicted on the count for felony only, and it is the same thing as if he had been convicted upon an indictment containing that single count ; and it is allowed that there was abundant evidence to warrant that conviction. There is not the smallest pretence for the objection, that the indictment also contained a count for misdemeanor, and it does not admit of any argument. The other learned Judges concurred. Conviction affirmed (a). (o) See O'Connell v. Regina, 9 Jur. Rep. 25. REGINA V. EMANUEL TEW. i855. The following case was reserved for the opinion of Thewitness- the Court of Criminal Appeal by the Chairman of the Tpnsoner General Quarter Sessions of the Peace for the county f^arged with ^^ •' larceny were, of Carmarthen. previously to At the Epiphany Quarter Sessions held for the natlon'be'fore the grand jury, sworn in open Court by the crier of the Court. Held, that thpy were properly sworn. I I 2 430 CROWN CASES RESERVED. 1855, county of Carmarthen in 1855, Emanuel Tew was Tew's tried for and convicted of larceny. The witnesses Case. were, previous to their examination before the grand jury, sworn in open Court by the crier of the Court in the usual manner, but the clerk of the peace has no accurate recollection whether he heard or saw the oath being administered ; but he directed the attorney for the prosecution to take the witnesses to the crier to be sworn. After the delivery of the verdict, the advocate for the prisoner moved in arrest of judgment, on the ground that in the Court of Quarter Sessions the oath should have been administered to the witnesses previous to their examination before the grand jury by the clerk of the peace himself, and not by the crier. The advocate for the prisoner so urgently maintained the validity of his argument, that the Court has thought it advisable to request your Lordship's opinion on the following points : Whether the administration of the oath to the witnesses by the crier of the Court of Quarter Sessions in open Court, previous to their examination before the grand jury, is a valid administration of the oath, so as to sustain the fiftding of that jury ? If not, whether the objection taken by the advocate for the prisoner was properly and in time taken after the delivery of the verdict? And whether it is absolutely necessary in the Court of Quarter Sessions that the witnesses, previous to tlieir examination by the grand jury, should be sworn by the clerk of the peace personally, in order that the oath should be of validity to sustain the finding of the grand jury ? Judgment was passed on the said Emanuel Tew, and he was sentenced to three months' imprisonment with hard labour, but was admitted to bail. CROWN CASES RESERVED. 431 This case was considered on the 20th of January 1855. 1855, by Lord Campbell C. J., Coleridge J., C ' -•' Tew's RESSW6LL J., Platt B. and Williams J. Case. No Counsel appeared either for the Crown or for the prisoner. Lord Campbell C, J. — Since the constitution of this Court, this is the most frivolous case that has come before us. What is the objection ? Why that the witnesses were sworn by the crier of the Court ; and the conundrum is, that they ought to have been sworn by the clerk of the peace. If they had been so sworn, it would have been by an oflBcer ©f the Court ; and the crier is an otEcer of the Court, and the organ of the Court. When he administers the oath, the Court administer it. The objection is unfounded, frivolous and discreditable; and I hope such an objection will never again come before this Court. The other learned Judges concurred. Conviction affirmed. REGINA V. CHARLES BURDETT (indicted with i855. Thomas Luck and William Cox), The following case was reserved for the opinion of A.B.aMAC. wsrc indicted the Court of Criminal Appeal by the permanent de- for larceny, and were separately defended. At the close of the case for the prosecution the Court decided that there was no case to go to the jury against C, and he was acquitted. C. was then called as a wit- ness in defence of A., and gave evidence tending to criminate B. On this B.'s Counsel claimed the right to cross-examine C, and address the jury in reply. This the Court refused to allow, hut offered to put to C, through the chairman, such questions as B.'s Counsel might suggest. A. and B. were both convicted. Held, that B.'s Counsel had a right to cross-examine C and to reply on his evidence, and that the conviction of B. must be reversed. Qitmry, whether he would have had that right if the evidence of C. had not tended to criminate B. Semble, that this Court will in its discretion assign Counsel for a prisoner. 432 CROWN CASES RESERVED. 1855 piity Chairman of the Quarter Sessions of the Peace BuRDETr's ^"'' '■'^^ county of Northampion. Case. At the General Quarter Sessions of the Peace for the county oi Northampton, held on the 29th of June 1854, Thomas Luck, Charles Burdett and William Cox were indicted and tried before me for stealing wood at Overstone, the property of Lewis Loyd Esq. They were severally defended by separate Counsel. At the close of the case for the prosecution, the Court decided that there was no case to go to the jury against Cox, and he was acquitted. In the course of the defence for Luck, Cox was called and examined as a witness on his behalf, with a view of shewing that Luck was an innocent agent in taking the wood, and in so doing Cox gave evidence tending to crimi- nate Burdett. Burdett's Counsel claimed the right of cross-examining Cox, and then addressing the jury upon his evidence. This was opposed by Luck's Counsel, and the Court refused permission to cross- examine and address the jury, but offered to pnt through the Chairman, such questions as Burdett's Counsel suggested. Luck and Burdett were both convicted. Being doubtful whether the Court was right in its decision, I consented to reserve the case of Burdett for the consideration of the Justices of either Bench and Barons of the Exchequer, and I have to request their opinion thereon. The question is whether the Court was right in refusing Burdett's Counsel the right to cross-examine and address the jury on Cox's evidence for the defence? The Court respited judgment and discharged Bur- dett upon his entering into recognizance with sureties to appear and receive judgment at the next Epiphany General Quarter Sessions of the Peace. This cijse came on to be argued on the 11th of CROWN CASES RESERVED. 433 November 1854, before Jervis C. J., Alderson B., 1855. Coleridge J., Martin B. and Crowder J. Burdett's Markham appeared for the Crown ; no Counsel ap- ^^^*- peared for the prisoner. Markham, for the Crown. Nothing occurred at the trial to vitiate the proceedings. The cross-exa- mination did take or could have taken place. Jervis C. J. — The Chairman says that he refused to allow the prisoner to cross-examine. Alderson B. — This is a case in which Counsel ought to appear for the prisoner. Jervis C. J. — It may seem fit to the Court to assign Counsel. Markham stated that he had thought W. H. Roberts who defended the prisoner on the trial would have been instructed. The further hearing of the case was then adjourned and came on again for argument on the 3rd February 1855, before Jervis C. J., Parke B., Maule J., Cresswell J., Wightman J., Erle J., Platt B., Williams J. and Chompton J. Markham appeared for the Crown, and W. H. Roberts for the prisoner. W. H. Roberts for the prisoner. At common law a person accused has a clear right of cross-examina- tion. The capacity of a witness to be examined draws along with it the right of the accused to cross- examine him ; and at common law and by statute the Counsel for Burdett had the right to cross-ex- amine his witness and reply upon his evidence. There is a case of Regina v. Woods and May (a), in which two prisoners were indicted for manslaughter, and the Counsel for one of them having addressed the jury on his behalf, the Counsel for the second prisoner (o) 6 Cox C. C. 224. 434 CROWN CASES RESERVED. 1855. did the same, and called witnesses whose evidence BuHDETT's tended to shew negligence on the part of the first, Case. and it was held by Mr. Commissioner Gurney, after consulting Mr. Justice Cresswell and Mr, Justice Williams, that the Counsel for the first prisoner had a right to cross-examine the witnesses for the second, and then to address the jury again, confining himself to comments on the testimony the second prisoner had adduced. The only other case bearing on the point which I have been able to find is Beak v. Moule (a), in which the same principle is laid down. The Court then called upon Markham, for the Crown. The irregularity, if any, was not of sufficient importance to vitiate the proceed- ings. The privilege contended for is not so much a matter of right as a matter of discretion, and the Court will look to see whether substantial justice has been done. The object and effect of cross-examina- tion is to search, examine, sift, and obtain admissions from the witness ; here the prisoner had an opportu- nity of putting questions through the mouth of the Chairman, and it is for the prisoner to shew that any injustice has been done by the direction of the Court that the examination should be conducted in that way. Maule J. — There are two men called Luck and Burdett on their trial — -there is a third man named Cox, no matter whether he had been accused of the same charge or not. Luck in his defence calls this man named Cox as a witness, and asks him some questions. If Luck had a right to examine Cox, Burdett had a right also. Then Burdett, not having elected to call Cox, claims a right to examine him (a) I Car. & Kir. 1 . CROWN CASES RESERVED. 435 when put into the witness box, and I think he had 1855. quite as good a right to question Cox as Luck had. Burdett's Markham. The mode of conducting an examina- '^^*^- tion, whether on a criminal or civil inquiry, is entirely in the discretion of the Court, and this Court will not set aside the conviction unless they can see that manifest injustice has been done. Maule J. — If a man has a right to put a question, he has a right to put it himself. Markham. All that the case of Regina v. Woods and May (a) shews is, that it is discretionary with the Court whether such a right should be allowed. All that Mr. Commissioner Gurney decided in that case was, that the cross-examination was reasonable, and should be allowed ; not that it was a right, and must be allowed. WiGHTMAN J. — If it was reasonable and should be allowed, it was a right, and ought to be allowed. Markham. I contend that it is discretionary, and the case of Beale v. Moule{h), also cited on the other side, decides nothing more than that. There is a case of Ilex v. Kroehl, Gibson and Koech (c). There the three defendants were tried for a conspiracy, and were defended separately, Koech alone called witnesses, and examined to a conversa- tion between himself and Kroehl. The Counsel for the prosecution was proceeding to cross-examine as to another conversation between Koech and Kroehl, when the Counsel for the prisoner Kroehl objected, on the ground that the effect might be to bring out a new case against Kroehl, although he had called no witnesses, and after the case for the Crown was finished; but Abbott J. said, that as Koech had called witnesses he could not prevent the cross-exa- (a) 6 Cox C, C. 224. (6) I Car. & Kir. 1. (c) 2 Stark. N. P. 343. 436 CROWN CASES RESERVED. 1855. mination as to any conversations that might affect Burdbtt's ^oech, although it might he matter for future consi- Case. deration whether the Counsel for Kroehl, after such evidence, would have a right to address the jury upon it. The question of cross-examination by the Counsel for the other prisoner did not atise, but Abbott J. clearly dealt with the questions of cross-examination and reply as matters in the discretion of the Court. W. H. Roberts was not called upon to reply. Jervis C. J. — In this particular case we think that the prisoner Burdett had a right to cross-examine the witness, and to cross-examine him without doing so through the Court, and had also a right to reply on his evidence. We must not, however, be understood as saying that he would have had that right if the evidence of the witness had not tended to criminate him. All we decide is, that in this particular case the course taken was wrong, and that the conviction must be reversed. Conviction reversed. 1855. REGINA v. THOMAS DOLAN. The prisoner The following case was reserved for the opinion of edoffeloni- the Court of Criminal Appeal by M. D. Hill Esq., ^stolen'''' Recorder of the borough of Birmingham. goods under At the Sessions held in Birmingham on the 5th the follow- ^ ing circum- stances. The goods were found by the owner in the pockets of the thief. The owner sent for a policeman who took the goods, but subsequently returned therri to the thief, who was sent by the owner to sell them where he had sold others. The thief then went to the shop of the prisoner and sold the goods, and gave the money to the owner. Held, that the conviction was wrong. Semble, that the Court of Criminal Appeal having no taxing officer, the costs of pro- ceedings in that Court must be taxed in the Court below. CROWN CASES RESERVED. 437 of January 1855, William Rogers was indicted for 1855, stealing, and Thomas Dolan for receiving certain dolan's brass castings, the goods of John Turner. Rogers *-'^^®- pleaded guilty, and Dolan was found guilty. It was proved that the goods were found in the pockets of the prisoner Rogers by Turner, who then sent for a policeman, who took the goods and wrapped them up in a handkerchief, Turner, the prisoner Rogers, and the policeman, going towards Dolan's shop. When they came near it, the policeman gave the prisoner, Rogers, the goods, and the latter was then sent by Turner to sell them where he had sold others, and Rogers then went into Dolan's shop and sold them, and gave the mone\- to John Turner as the proceeds of the sale. Upon these facts it was contended on the part of Dolan, that Turner had re- sumed the possession of the goods, and that Rogers sold them to Dolan as the agent of Turner, and that consequently, at the time they were received by Dolan, they were not stolen goods within the meaning of the statute. I told the jury upon the authority of the case of The Queen v. Lyon and Another, Carr. & Marsh, 217, cited by the Counsel for the prosecution, that the prisoner was liable to be convicted of receiving, and the jury found him guilty. Upon this finding, I request the opinion of the Court of Appeal in Criminal Cases, on the validity o^ Dolan's conviction. Dolan has been sent back to prison, and I respited judgment on the conviction against him, until the judgment of the Court above shall have been given. This case was argued on the 20th of January 1855, before Lord Campbell C. J., Coleridge J., Cresswell J., Platt B. and Williams J. Beasley appeared for the Crown, and O'Brien for the prisoner. 438 CROWN CASES RESERVED, 1855. O'Brien, for the prisoner. When the goods reached DoL^jj.g Dolan's hands, they were not stolen goods within the Case. meaning of the statute. Lord Campbell C. J,— Unless the case of The Queen v. Lyons (a) is in your way, you seem to have a very strong case to support. It was only upon the authority of that case that the learned Recorder acted. O'Brien. There were no indelible marks left of the fact that the goods had been stolen. I think this case may be distinguished irom Reg. v. Lyons; but if not, the decision in that case was not very satisfactory, and it would be difficult to support it. In that case a boy had stolen a brass weight from his master, and after it had been taken from him in his master's pre- sence it was restored to him again, with his master's consent, in order that he might sell it to a man to whom he had been in the habit of selling similar articles which he had stolen before. The boy did sell it to the man, and the man being indicted for receiving it, was convicted ; and Coleridge J., before whom the prisoner was tried, is reported to have said, that " for the purposes of the day he should consider the evidence as sufficient in point of law to sustain the indictment." Coleridge J. — I do not think so for the purposes of this day. Lord Campbell C. J We all think that for the present, at all events, we may hear the other side. Beasley. In Reg. v. Lyons, Coleridge J. seems to have fully considered the objection ; for although the matter was subsequently called to his Lordship's attention by the prisoner's Counsel, yet no alteration was made in the judgment of the Court, " from which," says the Reporter, " it is to be inferred that (a) Car. & Marsh. 217- CROWN CASES RESERVED. 439 upon consideration, his Lordship did not think that in 1855, point of law the objection ought to prevail." Dolan'b There is however a distinction between the facts of ^*^' that case and the present ; there the property was stolen by a lad in the prosecutor's employ, and had been received from him by another servant, and re- stored to him again. Being taken by another servant, it was constructively in the possession of the master. Here there was no intention on the part of the pro- secutor to restore these goods to himself, and the policeman, by taking the goods, did not restore the possession or property to the owner. If the owner had been absent, it no doubt would have been so, and his presence made no difference. The owner did nothing to obtain possession of the goods. Lord Campbell C, J The custody of the police- man at the time was the custody of the master. Beasley. The policeman allows the owner to stand by, and whatever he did he may be considered as doing as the agent of the policeman. Lord Campbell C. J. — It must be the same, what- ever the result may be, as if the owner of the goods had taken them into his own hand and given them to the policeman. There was a bailment by Turner to the policeman, and the policeman had become the bailee for the owner of the goods. Beasley. It is not necessary, under the statute, that the goods should be actually taken from the possession of the thief. Lord Campbell C. J. — Do you mean to say that at any past period of time, they having been stolen and the master having recovered and long enjoyed the possession of them, that the receipt of the goods with a knowledge they had been stolen would be an offence within the act of Parliament ? Cresswell J.— What I understand you to say is, 440 CROWN CASES RESERVED. 1855. that the policeman, taking them from the thief, never DoLAN's '° ^^^^ restored the possession or the property to the Case. owner ; that if the master had been absent, the taking by the policeman clearly would not have had that effect, and the policeman would have taken them as an officer of the law ; and that the master's presence made no difference. Beasley. That is the view I take. If the police- man had refused to deliver up the goods, he could not have been compelled by the master to do so. In fact, the master was rather the agent of the policeman than the policeman the agent of the master. The policeman had the entire control over the goods. Platt B. — The act from which you start was really the intervention of the master. Lord Campbell C. J. — If he was sent by the master, it was precisely the same as if the master had possession and had restored the goods to the police- man for that particular purpose. Beasley. Suppose the master had said nothing, but all were acting jointly, and that when they got to the shop the policeman had given the goods to the boy by the master's direction, the master standing by and not interfering ? Beasley then referred to cases where larcenies were committed in consequence of the contrivance of the owner of the goods, as where money was marked and placed in the way of the thief for the purpose of being stolen by him, and also to convic- tions for coining, in cases where the coining has actually been permitted to go on by the authority of the Mint. Lord Campbell C. J. — In this case I must say I feel very strongly that the conviction is wrong. I do not see how it can be supported, unless the doctrine were laid down, that if at any period of the history of a chattel which has been stolen and has been CROWN CASES RESERVED. 441 restored to the owner, who has long had it in his 1855. possession, the same chattel should be received from l^^^^X^^ the owner by a person who knew tliat it had been Case. once stolen, such a receiving would be an oflFence within the statute. I think that such a receiving could never be said to be an offence within the mean- ing of the statute, any more than it could make the receiver an accessory at common law to the felony. If an article once stolen has been restored to the master of that article, and he having had it fully in his possession, bails it for any particular purpose, how can any person who receives the article from the bailee be said to be guilty of receiving stolen goods within the meaning of the act of Parliament ? What is stated in this case ? We find that it was proved that the goods were found in the pockets of the prisoner Rogers by Turner the prosecutor, who then sent for a policeman, and he took the goods and wrapped them up in a handkerchief; Turner, the prisoner Rogers, and the policeman, going towards Dolan^ shop ; when they came near it, the police- man gave the prisoner Rogers the goods, and the latter was sent by Turner to sell them where he had sold others, and Rogers then went into Dolans shop and sold them, and gave the monej' to Turner as the proceeds of the sale. Now, Turner, the owner, had possession of the goods just as much as if he had taken them into his own hands and had delivered them from his own possession to another person for a particular purpose. He was the bailor of the goods subsequently to the theft, and the other person was the bailee. After that the goods are carried by Rogers by the direction of the master of the goods to the prisoner, who receives them. That is not a re- ceiving of stolen goods within the meaning of the act of Parliament. With regard to the case relied upon 442 CROWN CASES RESERVED. 1855. I really must think that the facts of that case are not Dolan'b 1"'*'^ accurately stated, and that there was something Case. in the case which does not appear in the report ; but if not, I am bound to say, and I do so with the most sincere and profound respect for my learned Brother, that I cannot agree with the decision, and I do not think that we ought to act upon it. Coleridge J. — I have no recollection now of the case of R. v. Lyons, cited from Carr. & Marsh, and therefore I have no right to say it is imperfectly reported. Assuming, however, that it is rightly reported, I must say I consider I was wrong. It appears to me in the present case, that one mode of testing it would be by seeing how the case would stand, putting the policeman out of the question. Now if the policeman were put out of the question, it is clear the goods were in the possession of the owner. The goods which had been stolen had passed into the possession and were under the control of the real owner. They are then placed in the possession oi Rogers for a specific purpose, and they were then no longer in the possession of Rogers in the character of stolen goods, so as to make the subsequent receipt of them by Dolan, a receiving of stolen goods within the statute. Now let IIS see whether the policeman's inter- ference affects the case. In the first place the goods are found by and are in the possession of the master, who sends for the policeman, who takes them into his posseasion by the authority of the master. The policeman detained them in his possession for the purposes of the law ; but it is evident, from the facts of the case, that the master retained his control over them, for he again interposes, and what is done after- wards is done by his authority. I think it ought to be taken that they remained under the control of the CROWN CASES RESERVED. 443 owner, and if I am right in that conclusion, the 1855. interference of the policeman is immaterial, and the dolan's conviction was Wrong. Case. CuEsswELL J I do not dissent from the other members of the Court in holding that the conviction was wrong, but we are called upon to give our reasons, Jind I am sorry I cannot concur with my Lord and my learned Brother, in some of the reasons which they have given. If it were necessary to hold that the policeman by taking possession of the stolen goods from the pocket of the thief, restored the possession of the master, I should dissent from the decision. I think we cannot put the policeman out of the ques- tion. The goods were in the custody of the law for the purposes of the administration of the criminal justice of the land, and the master could not have demanded them of the policemaiT. But on the other part of the case, I think that when the goods were given back by the policeman to Rogers, and the master desired Rogers to go and sell them, it may be considered that the master employed Rogers as his agent for that purpose, and ih^i Dolan did not receive therii as stolen goods within the meaning of the statute. I think the other view may some day or other lead to considerable difficulty. Platt B. — Turner took these goods out of the pocket of Rogers. Cresswell J. — No, the policeman took them. Platt B. — It is said that the goods were found in the pockets of Rogers by Turner, who then sent for a policeman, who took them out. Coleridge J. — It is not said he took them out of the pocket of Rogers ; he might have taken them from Turner. Platt B.— I do not think that makes any dif- ference ; at all events by the agency of the policeman VOL. I. K K 444 CROWN CASES RESERVED. 1855. they are removed. The policeman received them, DoLAN's ^^^ ^''^h a view of catching the receiver, he puts Case. them back into the custody of Rogers ; that placed all the parties statu quo in which they were when the goods were first found in the pockets of Rogers. Then the owner of the goods says to the thief : "Go and sell them to Dolan." Would not that be a valid sale ? The owner of goods sends an agent to Dolan to sell them. If a bargain made on such an authority would not be a binding bargain, I do not know what would ? Can any thing criminal arise out of it ? The act of Parliament was never meant to apply to a case of this sort. It is precisely the same as if Turner had had them in his pocket, and had then sent them to Dolan. If a receiving by Dolan after that would be a receiving within the statute, this would be a receiving ; but I am of opinion that it is not. Williams J. — I am of opinion that this conviction was wrong. I think why it is wrong is this ; in order to make out a felonious receipt, it must be a receipt without the authority of the owner of the goods. Looking at the framing of the indictment, every part of it may be said to be proved ; but the question is, whether Dolan received the goods within the meaning of the statute. I think it is impossible to say that he did, inasmuch as he received them from the person who had been employed by the owner to sell them. Conviction quashed. Beasley, applied to the Court as to costs, stating that the difficulty was as to the mode of ascertaining what costs should be allowed to the prosecutor, and whether such costs should be taxed by the officer of this Court, or by the officer of the Court below. The costs would, no doubt, be costs of the prosecution ; CROWN CASES RESERVED. 445 but the statute constituting this Court was silent as to 1855. how the amount of such costs was to be ascertained. Dolan^ Lord Campbell C. J. — This Court has no juris- Case. diction. The Court has no taxing officer, and I do not see how we can interfere (a). (a) In Reff. v. Cluderoy (3 Car. & s. 22, to allow the costs of the pro- Kir. 205), Williams J. held that secution in arguing a case reserved he had power under 7 Geo. 4, c. 64, for the opinion of this Court. REGINA V. JOHN GIBBS. 1855. The following case was reserved for the opinion The prisoner of the Court of Criminal Appeal by Mr. Justice '^^ was convict- ou an in- CoLERIDGE. dictment rpi . . 1 , /. 1 o charging him ine prisoner was tried berore me at the Summer with embez- Assizes, 1854, for the county of Somerset, and con- onTcount"a8 victed on an indictment for embezzlement. The first servant to ^., count charged hira, as servant to J ane JJickinson, with other count embezzling 2s. l\d. On the second no evidence was s/^^andB. offered. On the third he was charged, as servant to were two Eliza Gould, with embezzling 3s. sewers of glo- ves residing at C, the manufacturers of the gloves carrying on business at D, The prisoner was a carrier residing at C, and was exclusively employed between the glove sewers at C. and the manufacturers at D. The sewers were not known to the manufacturers, but when a sewer wanted work the prisoner gave her name and a number to the manufacturers, and received from them unsewn gloves for her to sew. Each sewer, having her number, sent back by the prisoner the gloves when sewn with her name pinned to the parcel. These parcels the prisoner delivered to the manufacturers, and if the parcels were found correct he received the total amount due to the sewers in one sura, and fresh parcels of unsewn gloves. His duty then was to deliver to each sewer her fresh work and also the money due to her, deducting his charge. If any work was missing the manufacturers looked to the sewer if found, but if not they looked to the prisoner for it. The prisoner, according to the course above stated, took out numbers for A. and B., and having received money for both of them from the manufacturers, denied the receipt of the money, and applied it to his own use. Held, that the prisoner was not a servant but merely a bailee, and was only guilty of a breach of trust and not of embezzlement. K K 2 446 CROWN CASES RESERVED. 1855. Jane Dickinson and Eliza Gould were two, among GiBBs's raany others, makers-up and sewers of gloves, residing ^^^^- at Somerton. Messrs. Southcomb and Chard were glove manufacturers at Stoke-under-Hamden. The prisoner was a carrier, residing at Somerton, and going from that place to Stoke and back; employed, however, only, between the glove sewers and manu- facturers, in carrying the gloves from and to the one and the other. The manufacturers at Stoke know nothing of the individuals at Somerton who sew and make up their gloves for them ; but the prisoner gives the name of, and takes out a number for, any woman who desires to be employed, and receives a certain number of unsewed gloves from the manufactory. The sewers at Somerton, each having her number, send back their gloves, when sewed, in separate parcels, each with their name pinned to the parcel, by the prisoner to the factory. He delivers the parcels, and, if these are found correct, the total amount due is paid to him in one sum, and fresh parcels of unsewn gloves are delivered to him. His duty then is to deliver to each workwoman her money, deducting his charge, and her fresh work. The manufacturers, though they know nothing personally of the women to whom the gloves are sent, except by the numbers given, assuming their existence, look to them for the work ; but if any work be missing and the woman not found, they look to the carrier for it. According to the course here stated, the prisoner had taken out numbers for Jane Dickinson and Eliza Gould. On June 7th each of them had given him a parcel of sewed gloves to be taken to the manufactur- ers, which he duly delivered. Jane Dickinsons work entitled her to receive 2s. lie?- ; Eliza Gould's entitled her to receive 3s. ; and these sums, with several others, in one sum, were paid to the prisoner jn respect of CROWN CASES RESERVED. 447 such work. On his return they applied to him for 18.55. their money and fresh work ; he denied the receipt of G I R R si's any money for them, and fraudulently applied these Case. sums to his own use. These facts being clearly proved, a verdict passed for the Crown, and I sentenced the prisoner ; but I request the opinion of the Judges whether he was properly convicted of the crime of embezzlement? This case was considered on the 11th of November 1854, by Jervis C. J., Alderson B., Coleridge J., Martin B. and Crowder J. No Counsel appeared either for the Crown or for the prisoner. Cur. adv. vult. On the 20th of January 1855, the following judg- ment was delivered by Coleridge J, (a) The question is whether upon the facts stated in this case, the prisoner can be held to have been a servant to the prosecutrixes Jane Dickenson and Eliza Gould, or either of them. Ac- cording to the common acceptation of the term, it is impossible that the prisoner can be considered as their servant. The ordinary relation of master and servant cannot be said to have subsisted between them ; the women would not have been responsible for the negligence of the prisoner; and, unless there were decided cases precisely in point, we could not come to the conclusion that he was a servant to them within the meaning of the statutes against embezzlement. Though some of the decisions go very far in making persons liable as servants to punishment for embezzle- (o) The other Judges present were Lord Campbbli, C. J., Cress- well J., Platt B., and Williams J. VOL. I. L L 448 CROWN CASES RESERVED. 1855. ment, none go so far as this. The prisoner was in GiBBs's ^^^^ ^ common carrier for all persons who chose to Case. employ him within a limited district; and he was like all carriers at common law only bound to carry such a description of goods, and between such places as he professed to carry. The case of Lane v. Cottan (a), is an authority on this point, and that case was cited in Johnson v. The Midland Railway Com- pany (b), where it was held that a railway com- pany carrying goods was not subject to a greater liability than a carrier at common law, and was not bound to carry every description of goods, and between all places on the line of railway, but only such de- scription of goods and between such places as the company publicly professed to carry. We consider, therefore, that the prisoner in this case was a mere bailee, and that the non-delivery of the money which he had received was merely a breach of trust, and not an embezzlement. The decision in Regina v. Hey (c) is applicable to this case. In that case the prisoner was employed by the prosecutors as a drover, but he was at liberty to drive the cattle of any other persons, and it was held that he was merely a bailee, and not a servant. Conviction quashed. Co) 12 Mod. 484. (6) 4 Exch. 372. (c) 1 Den. C. C. 602. CROWN CASES RESERVED. 449 REGINA V. THOMAS ARCHER. 1855. The following case was reserved for the opinion of ^he defend- the Court of Criminal Appeal, by T. F. Ellis Esq., ant was in- the Recorder of Leeds. obtLing The defendant was indicted for a misdemeanor at fZf^t the Leeds Borough Sessions, holden before the Re- tences. It corder of that borough, on 3rd March 1855. The he^obt''ffned^* indictment contained four counts. The first count from^thf pro- in substance charged the defendant with obtaining secutorsby from Samuel Hirst, on the 6th day of January last that he wfnt- (by falsely pretending to Samuel Hirst that there was one'j!"^!"' then one John Smith, who was an ironmonger, and whomhere- who lived at Newcastle, and that the said John Smith living" at zv".! was a person to whom the said Thomas Archer durst ^ndbemg ' a person to trust one thousand pounds, and that the said John whom he Smith went out twice a year to New Orleans, to take wool., and different kinds of goods to his the said John Smith's fhowentout ° twice a year sons, and that the defendant then wanted some cotton to New Or- warp cloths for the said John Smith of Newcastle), goods to his one end of cotton warp cloth, goods of the said Samuel ?°"®-, '^^f r ' o ^ ^ jury found Hirst, with intent to defraud, whereas in truth and in that all the fact there was not then one John Smith, who was an tions were ironmonger, and who lived at Newcastle, and whereas fw^Jif"'^ in truth and in fact the said Thomas Archer did not secutors, be- then want the said cotton warp cloth or any cloths the defendant whatever for the said John Smith, as he the said . ^f ® '!°""?'=*" ed with the Thomas Archer well knew at the time when he did saidy..S.,and so falsely pretend as aforesaid. The second count in hmit*cfobtam substance charged the defendant with obtaining from the goods. => ° contracted the said Samuel Hirst on the 11th January last (by with the de- fendant and not with the supposed J. S., and delivered the goods to the defendant for himself and not for J. S. Held, that the defendant was, under these circumstances, rightly convicted of the offence charged in the indictment. vol.. I. MM 450 CROWN CASES RESERVED. 1855. falsely pretending to the said Samuel Hirst that he Archer's '^e defendant then wanted for the said John Smith, Case. vvho was an ironmonger, and who lived at Newcastle, four other ends of cotton warp cloths) four ends of cotton warp cloths, ggods of the said Samuel Hirst, with intent to defraud, whereas in truth and in fact the said Thomas Archer did not then want for the said John Smith the said last mentioned four ends of cotton warp cloths, or any cloths whatever, as he the said Thomas Archer well knew at the time when hp did so falsely pretend as last aforesaid. The third count stated that long before and at the time of com- mitting the offence in that count mentioned, Jghn Holt, a commission agent for the sale of woollen cloths, was well known to the said Samuel Hirst, and did business with the said Samuel Hirst as a commis- sion agent for the said Samuel Hirst, and that the defendant afterwards, to wit, on the llth day of January last, obtained from Benjamin Holt, being servant to John Holt (by falsely pretending to the said Samuel Hirst that he, the defendant, then wanted for the said John Smith, of Newcastle, who was a person worth some thousands of pounds, two ends of black cloth), two ends of black cloth, gpods of the said John Holt, with intent to defraud, whereas in truth and in fact the said Thomas Archer did not then want for the said John Smith the said two ends of black cloth, or any cloth whatever, as he the said Thomas Archer wgU knew at the time when he did so falsely pretend as last aforesaid. The fourth count in substance charged the defendant with obtaining from the said John Holt, on llth January last (by falsely pretending to the &9\A Sq,m,u^l Hirst that he, the defendant, then wanted for the said John Smith, of Newcastle, two ends of black cloth), two ends of black cloth, goods of the said John Holt, with intent CROWN CASES RESERVED. 451 to defraud, whereas in txuth and in fact the said i855. Thomas Archer did not theu want for the said John ahcheh's Smith, oiN&wcastle, the said last mentlonjed two ends Case. of black cloth, or any cloth whatever, as he the said Thmaas Archer well knew at the time when he did so falsely pretend as last aforesaid. The defendant pleaded not guilty to all the counts, and issue was joined on the part of the Crown. On the trial before the said Recorder, evidence was giv^n sufficient to warrant the conviction of the defendant on every one of the four counts, unless the following objection, taken by the Counsel for the defendant, be valid. The said Counsel contended that the evidence shewed that Samuel Hirst and John Holt, the two persons named in the indictment as owners of the goods obtained by the defendant, con- tracted to sell the goods to the defendant, not to the supposed John Smith, and delivered, and caused to ht» delivered to the defendant, in pursuance of such contract, the goods for the defendant himself, and not for the supposed John Smith; and the said Counsel contended, that this being so, the defendant was entitled to an acquittal, although it should appear thij.t such contract, and such delivery in pursuance of such contract, resulted frqm the falsehoods told by the defendant as charged in the indictment, and from the belief given to such falsehoods by Samuel Hirst and John Holt. The jury, in answer to questions put to them by tbfe Recorder, stated that they were of opinion that the representations were made by the defendant as charged in the indictment, and that Samuel Hirst and John Holt believed such representations, and that such representations were false to the knowledge of the defendant, and that Samuel Hirst and John Holt, in consequence of such belief, thinking that the defendant M M 2 452 CROWN CASES RESERVED. 1855. was a person with whom they might safely contract Archer's ^s being connected with the supposed John Smith, Case, and employed by him to obtain the goods, did mean to contract with the defendant, and not with the sup- posed John Smith, and did, in pursuance of such contract, deliver, and cause to be delivered, the goods to the defendant, for the defendant himself, and not for the supposed John Smith. The Recorder directed the jur}-, that upon this view of the facts they ought to find a verdict of guilty, which they found accordingly. The defendant was sentenced to be imprisoned and kept to hard labour for nine calendar months, but execution of the judgment was respited, and the defendant not being able to give bail, was committed to prison until the question hereafter mentioned should have been considered. He is still in prison. The question for the opinion of the Justices of either Bench and Barons of the Exchequer is, whether the defendant ought to have been convicted under the circumstances above mentioned ? This case was argued on the 28th of April 1855, before Pollock C. B., Pakke B., Wightman J., Crompton J. and Crowder J. No Counsel appeared for the prisoner. Pickering, for the Crown. There was a false representation of an existing fact, namely, that the defendant was connected with the supposed Mr. Smith, and the jury have found that he obtained the goods by means of that false representation, and that the prosecutors, believing that representation intended to contract with the defendant himself and not with Smith. It was contended on the trial by the learned Counsel for the defendant, that he was entitled to an acquittal, inasmuch as the credit was given to him CROWN CASES RESERVED. 453 and not to the person by whom he pretended to IS.'iS. be employed ; but that is not so, as it was upon ' archer's the defendant's false representation of his connection Case. with the supposed Mr. Smith, that the credit was obtained. Pollock C. B. — This conviction was right. If a man says " I want goods for a certain house and I mean to send them to that house, sell them to me," that would not be a representation of an existing fact; but here there was a false representation, that the defendant was connected with a person of opulence, and we all think that that is enough to sustain the conviction, it being a misrepresentation of an exist- ing fact, upon the faith of which the property was obtained. The other learned Judges concurred. Conviction confirmed. REOINA u. ELIZABETH CHANDLER. 1855. The following case was reserved for the opinion of A single the Court of Criminal Appeal, by Mr. Bramwell Q. C. ^Srofan At the Assizes and General Session of Gaol De- infant child, livery holden ai Maidstone on the 13th day o^ March fomeglect- 1855, Elizabeth Chandler was tried and found guilty Jt^lth^'suS' before me on the first count of an indictment in the cientfood, ,. ,, . - the indict- tol lowing form. ment alleging Kent.] The jurors for our lady the Queen "pon able and had their oath present that during: all the time hereinafter themeansso '^ ° to do. There waa no evi- dence of the actual possession of means by the prisoner ; but it was proved that she could have applied to the relieving officer of the union, and that if she had so applied, she would have been entitled to, and would have received relief adequate to the due support and maintenance of herself and the child. Held, that the allegation in the indictment was not supported by this evidence. Case. 454 CROWN CASES RESERVED. 1855. ia this indictment mentioned one Elizabeth Chandler Chand- ^^^ ^ single woman and was the mother of a certain lbr's male child known by the name of Albert of very^ tender age and wholly unable by reason of his tender age to provide himself with food or nourishment or to take care of himself and that during all the time aforesaid it was the duty of the said Elizabeth Chand- ler to protect shelter and nourish the said child and to provide for and give and administer to the said child suitable food in proper and sufficient quantities for the nourishment and support of his body and the preservation of his health she the said Elizabeth Chandler during all the time aforesaid being able and having the means to perform and fulfil her said duty And the jurors aforesaid upon their oath afore- said further present that the said Elizabeth Chandler late of the parish of Speldhurst in the county of Kent well knowing the premises and not regarding her duty in that behalf but being a person of unfeeling and inhuman disposition on the first day of October in the year of our Lord one thousand eight hundred and fifty-four and continually from thence until the twenty-second day of January in the year of our Lord one thousand eight hundred and fifty-five at the parish aforesaid in the county aforesaid did unlawfully wilfully and on purpose give to the said child food and nourishment in quantities wholly inadequate and insufficient for the support and preservation of the body and health of the said child and did unlawfully wilfully omit neglect and refuse to provide for and to give to the said child meat drink or food in any sufficient or proper quantity whatsoever whereby by reason of the premises last aforesaid the life of the said child was endangered and the said child became and was sick ill weak starved and greatly emaciated in his body to the great damage of the said child and Case. CROWN CASES RESERVED. 455 against the peace of our said lady the Queen her 1855. crown and dignity. chani,- The first count was duly proved except as to the i-er's * allegation : ' ' She the said Elizabeth Chandler during all the time aforesaid being able and having the means to perform and fulfil the said duty." As to that allegation the evidence was, that the child was a bastard child of the prisoner, and that she was cohabiting with a man to whom she was not married, and who was not the father of the child. There was no evidence of her actual possession of means for nourishing and maintaining the child as stated in the first count of the indictment, but it was proved that she could have applied to the relieving oSicer of the poor law union in which she resided ; that, had she done so, she would have been entitled to and received relief for herself and the child adequate to their due support and maintenance, and that she had not made any such application ; and it was contended, by the Counsel for the prosecution, that this evidence satis- fied the allegation above referred to. Entertaining doubts on this subject, and the validity of the first count in point of law being questioned, I have to request the judgment of the Court for the considera- tion of Crown Cases Reserved on these two points. Judgment on the said indictment stands respited, and the defendant was admitted to bail to receive judgment at the assizes next to be holden for the said county. This case was considered on the 28th of April 1855, by Pollock C. B., Parke B., Wightman J., Crompton J. and Crowder J. No Counsel appeared either for the Crown, or for the prisoner. Pollock C. B. — The indictment alleges that the 456 CROWN CASES RESERVED. 1855. Chand- ler's Case. prisoner being able and having the means neglected to maintain her child. We are all of opinion that there was no evidence that she had the means of maintaining it, and therefore that allegation in the indictment is not made out. It is not sufficient to prove that the prisoner might by possibility have obtained the necessary means. That may be so, but it does not fit the indictment, which says that she had the means. We are all of opinion that the conviction cannot be sustained. Parke B. — It does not appear by the evidence that the prisoner had the means, and whether she could have obtained the means must be matter of un- certainty. We therefore need not trouble ourselves about the validity of the indictment. The other learned Judges concurred. Conviction quashed. 1855. J REGINA V. EMMA FORSTER. On an in- The following case was reserved for the opinion of dictmentfor \ r\ p i~\- • \ k iiiitt» t-i uttering the Oourt ot Criminal Appeal by Mr. Baron Parke. cohi°fn'^rder '^^^ prisoner was indicted at tiie Liverpool Spring to prove a Assizes 1855, for having, (after a previous conviction guilty know- . . - . . , , „ . ledge, evi- lor Uttering counterieit coin), uttered a counterfeit JvenTfT''^ crown piece at Manchester, on the 12th of December subsequent 1854, to Jane Ann Needham, knowing it to be coun- the prisoner terfeit. The uttering a counterfeit crown on that day coin'of l*"^*^^'' by the prisoner to Jane Ann Needham was proved. diflferent de- To prove guilty knowledge, the uttering of another nomination to that men- tioned in the indictment. The difference in the denomination of the coin goes to the weight of the evidence, but not to its admissibility. CROWN CASES RESERVED. 457 counterfeit crown piece by the prisoner at Manchester, 1855. on the 11th of December 1854, was proved. The fobsteb's prisoner on that occasion on its being stated to her Case. to be a bad crown piece, by the shopkeeper to whom it was given by her, said she would bring her husband and daughter to shew where she got it, and was per- mitted to depart on her promise to bring them, but she never returned. In order further to prove guilty knowledge on the part of the prisoner, the prosecutor offered to give evidence of a subsequent uttering by the prisoner of a counterfeit shilling on the 4th of January. The Counsel for the prisoner objected that a sub- sequent uttering of a different species of counterfeit coin was not admissible to shew guilty knowledge at a prior time. I had some doubt as to the propriety of receiving the evidence, and intimated that I should reserve the point for the consideration of the Judges if the evi- dence should be received and the prisoner convicted ; and, considering the proof in the case, besides that of the subsequent uttering, I thought the evidence would have been withdrawn. But on the part of the Crown, it was stated that it was very desirable to have the point settled, as the case was of frequent occurrence in practice and considerable doubt was entertained upon it. I therefore received it. The jury found the prisoner guilty, and voluntarily added that they found their verdict without consider- ing the evidence of the subsequent uttering in the least. The prisoner was sentenced to four years' penal servitude. I pray the advice of the Judges (a). This case was considered 28th of April 1855, by Pollock C. B., Parke B., Wightman J., Cromp- TON J. and Crowder J. (a) The learned Baron, at the foot Ev. 510 j Taylor on Ev. 250 ; Ros- of the case, referred to 1 Phill. on coe on Crim. Ev. 35. 458 CROWN CASES RESERVED. 1855. No Counsel appeared either fof the Crown or for Iw^wT *^e prisoner. Case. Parke B. intimated that the case was reserved, notwithstanding the finding of the jury, as Mr. Powell, the Solicitor to the Mint, had stated that the point which it involved was of frequent occurrence, and it was very desirable that it should be decided. Pollock C. B.— If evidence is given upon a trial which is not properly admissible, the jury cannot make the reception of that evidence proper, by saying that they have not been influenced by it. In this case, however, we are of opinion that the evidence given was admissible to shew the guilty knowledge of the prisoner. In order to shew such guilty knowledge, it would not be sufficient merely to prove some other dishonest act; but here the uttering of the bad silver is so connected with the ofiFence charged in the indictment, as to make the evidence of it admissible, although the coin was of a different deno- mination. The difference in the denomination of the coin goes to the weight of the evidence, but does not affect its admissibility. The other learned Judges concurred. Conviction affirmed. CROWN CASES RESERVED. 459 REGINA ». HENRY GATES. i855. The following case was reserved by Wilson Overend in an indict- Esquire, Chairman of the General Quarter Sessions Xaiing for the "West Riding of Yorkshire, for the opinion money by of the Court of Criminal Appeal. tencerthe The defendant, Henry Oates, was indicted at the H^^'^l^j, adjourned Christmas Sessions, held at Sheffield, for some of the the West Riding of Yorkshire, on the 27th of that the pri- Febrmry 1855, for obtaining money under false p°etTndid^'^ pretences under the following indictment. that he hav- West Riding of Yorkshire, to wit.] The jurors for certain work onr lady the Queen upon their oath present that certainTumof Henry Oates on the fourth day o{ November in the money |' due year of our Lord one thousand eight hundred and tohimfM'^nd fifty-four unlawfully knowingly and designedly °° account of did falsely pretend to one John Roberts Spencer ing parcel of that he the said Henry Oates having executed claime"by™ for one William Spencer and the said John Roberts him; whereas . r • p 1 1 there was not Spencer a certain lot and quantity of work there was then "due then due and payable to him the said Henry Oates tohim'such from and bv the said William Spencer and John money being •' PI .11 parcel of a Roberts Spencer for and on account of the said lot larger sum. and quantity of work a certain sum of money to wit tence\verred the sum of six shillings being parcel of a certain m other .11 P . counts was, larger sum oi money to wit the larger sum oi sixteen that the pri- shillings and seven pence then claimed by the said p°e4nded^'^ Henry Oates in payment for the said lot and quantity thattherewas owing" to . him the whole amount of a sum of money for and on account of certain work executed by him; whereas there was not then " due and owing" to him the whole amount of such sum of money, but only a smaller sum. Held, that the indictment was bad, inas- much as a false pretence of an existing fact was not sufficiently alleged, and the averments would be proved by evidence of a mere wrongful overcharge. 460 CROWN CASES RESERVED. 1855. of work by means of which said false pretence the 0;,TEs's said Henry Oates did then unlawfully obtain from Case. the said John Roberts Spencer a certain sum of money to wit the sum of six shillings of the moneys and property of the said William Spencer and John Roberts Spencer with intent thereby then to defraud whereas in truth and in fact there was not then due and pay- able to him the said Henry Oates the said sum of money to wit the sum of six shillings being parcel of the said larger sum of sixteen shillings and seven pence from and by the said William Spencer and John Roberts Spencer for and on account of the said lot and quantity of work to the great damage and decep- tion of the said John Roberts Spencer to the evil example of all others in like case offending 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. And the jurors aforesaid upon their oath aforesaid do further present that the said Henry Oates on the sixteenth day of December in the year of our Lord one thousand eight hundred and fifty-four unlaw- fully knowingly and designedly did falsely pretend to the said William Spencer that there was then due and owing to him the said Henry Oates from the said William Spencer and John Roberts Spencer a certain sum of monej"^ to wit the sum of one shilling being parcel of a certain larger sum of money to wit the larger sum of nineteen shillings and nine pence for and on account of a certain lot and quantity of work then executed by him the said Henry Oates for the said William Spencer and John Roberts Spencer by means of which said false pretence the said Henry Oates did then unlawfully obtain from the said William Spencer a certain sum of money to wit the sum of one shilling of the moneys and property of the said CROWN CASES RESERVED. 4i William Spencer and John Roberts Spencer with intent 1855. thereby then to defraud whereas in truth and in fact oates' there was not then due and owing to him the said ^***- Henry Oates the said sum of money to wit the sum of one shilling being parcel of the said larger sum of money to wit the larger sum of nineteen shillings and nine pence from the said William Spencer and John Roberts Spencer for and on account of a certain lot and quantity of work to the great damage and decep- tion of the said William Spencer 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. And the jurors aforesaid upon their oath aforesaid do further presertt that the said Henry Oates on the sixth day of January in the year of our Lord one thousand eight hundred and fifty-five unlawfully knowingly and designedly did falsely pretend to the said William Spencer that there was then due and owing to him the said Henry Oates from the said William Spencer and John Roberts Spender the whole amount of a sum of money to wit the whole sum of nineteen shillings for and on account of a certain lot and quantity of work then executed by him the said Henry Oates for the said William Spencer and John Roberts Spencer by means of which said false pretence the said Henry Oates did then unlaw- fully obtain from the said William Spencer a certain sum of money to wit the sum of ten shillings of the moneys and property of the said William Spencer and John Roberts Spencer with intent thereby then to defraud whereas in truth and in fact there was not then due and owing to him the said Henry Oates the whole amount of the said sum of money to wit the sum of nineteen shillings but only the smaller sum of 462 CROWN CASES RESERVED. 1855. money to wit the sum of nine shillings parcel thereof Oatbs's foJ" and on account of a certain lot and quantity of Case. work from the said William Spencer and John, Mob^rts Spencer to the great damage and deception of the said William Spencer to the evil example of all others in the lilie case offending against the form qf the statute in such case made aud provided and against the peace qf our lady the Queen her crown and dignity. And the jurors aforesaid upon their oath aforesaid do further prese^it that the said Henry Oate$ on the thirteenth daj' qf January in the yeaP of our Lord one thousand eight hundred and fifty five unlaws fully knowingly and designedly did falaely pre-- tend to the said John Roberts Spencer that there was then due and owing to him the said Henry Gates the whole amount of a certain sum of money to wit the sum of seventeen shillings and eleven pence from the said William Spencer and John Roberts Spencer for and on account of a certain lot and quantity of work done and executed for the said William Spencer and John Roberts Spencer by the said Henry Gates by means pf which said false pretence the said Henry Gat^s did then unlawfully obtain from the said John Roberts Spencer a certain sum qf money to wit the sum qf six shillings qf the mqpeys and property qf the sai4 WHliaxn Spencer and John Roberts Spencer with intent thereby then tq defraud whereas in truth and in fact there was not then due and qwing tq him the said Henry Gates the whqle amqunt qf the said sum qf mqney tO wit the sum qf seventeen shillings and eleven pence frqm the said William Spencer and John Roberts Spencer but only a smaller sum of money to wit the sm?iller sum qf eleven shilHngs and eleven pence for and on account of the said Iqt and quantity qf wqrk tq the great damage and deception qf the said John Roberts Spencer tq CROWN CASES RESERVED. 463 the evil example of all others in the like ease offend' 1855. ing against the form of the statute in such case made Oates's and provided and against the peace of our lady the ^*^®' Queen her crown and dignity. And the jurors aforesaid upon their oath aforesaid do further present that the said Henry Oates on the twentieth day of January in the year of our Lord one thousand eight hundred and fifty-five unlawfully knowingly and designedly did falsely pretend to the said William Spencer that there was then due and owing to him the said Henry Oates the whole amount of a certain sum of money to wit the sum of eighteen shillings and seven pence from the said William Spencer and John Roberts Spencer for and on account of a certain lot and quantity of work done and exe- cuted for the said William Spencer and John Roberts Speneer by the said Henry Oates by means of which said false pretence the said Henry Oates did then unlawfully obtain 4"rom the said William Spencer a certain sum of money to wit the sum of five shillings of the moneys and property of the said William Spencer and John Roberts Speneer with intent thereby then to defraud whereas in truth and in fact there was not then due and owing to him the said Henry Oates the whole amount of the said sum pf money to wit the sum of eighteen shillings and seven pence from the said William Spencer and John Roberts Spender but only a smaller sura of money to wit the sum of thirteen shillings and seven pence for and on account of the said lot and quantity of work to the great damage and deception of the said WilBam Spencer to the evil example of all others in the like case ofFendiijg 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. And the jurors aforesaid upon their oath aforesaid do 464 CROWN CASES RESERVED. 1855. further present that the said Henry Gates on the third Oatbs's day of February in the year of our Lord one thousand Case. eight hundred and fifty-five unlawfully knowingly and designedly did falsely pretend to the said William Spencer that there was then due and owing to him the said Henry Oates the whole anrount of a certain sum of money to wit the sum of fifteen shillings and six pence from the said William Spencer and John Roberts Spencer for and on account of a certain lot and quantity of work done and executed for the said William Spencer and John Roberts Spencer by the said Henry Oates by means of which said false pretence the said Henry Oates did then unlawfully obtain from the said Wil- liam Spencer a certain sum of money to wit the sum of five shillings of the moneys and property of the said William Spencer and John Roberts Spencer with intent thereby then to defraud whereas in truth and in fact there was not then due and owing to him the said Henry Oates the whole amount of the said sum of money to wit the sum of fifteen shillings and six pence from the said William Spencer and John Roberts Spencer but only a smaller sum of money to wit the sum of ten shillings and six pence for and on account of the said lot and quantity of work to the great damage and de- ception of the said William Spencer 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. It was proved that the defendant worked for the prosecutors as a journeyman, and that the quantities of work done by him for them during each week were entered in a book kept exclusively for that purpose. The prices for the work so entered were placed in a CROWN CASES RESERVED. 465 column opposite to each quantity of work, and were 1S55. added up on behalf of the prosecutors at the end of ~Oates's each week. The weekly totals of these prices were ^^^^' entered by them in this book, and the amount of those totals were paid by them to the defendant as the ascer- tained sum of money due to him for work done on the production by him of this book. It was further proved that, after these weekly totals had been entered as above, the defendant had altered them into larger amounts, and then had procured payment of those larger amounts on producing the books, and had after- wards erased the larger amounts and restored the figures of the original totals. The defendant was found guilty. After verdict had' been recorded it was ob- jected on the part|of the defendant that the counts of the above indictment did not disclose any false pretence under 7 & 8 Geo. 4, c. 29. The Court held that the objection was a good one, and arrested (a) the judg- ment in order that a case might be stated for the decision of the Court of Criminal Appeal, whether the indictment above set out discloses on its face any false pretence under the above statute. This case was argued on the 28th of April 1855, before Pollock C. B., Parke B., Wightman J., Crompton J. and Crowder J. ./. B. Maule appeared for [the Crown, and A. J. Johnston for the prisoner. A. J. Johnston, for the prisoner. The indictment is bad upon the face of it, as it does not shew that there was any false pretence of an existing fact. It is not (a) The Court of Criminal Appeal Mr.ilfaM^e, the Counsel for the pro- acted in this case on the assumption secution at the sessions, that the that the word "arrested" was in- judgment was not in fact arrested serted by mistake for "respited ;" in the Court below.— H. R. D. and I have since ascertained from VOL. I. N N 466 CROWN CASES RESERVED. 1855. alleged in any of the counts that the prisoner pretended Oatks's that work had been done which had not, in fact, been ^^^''- done, and the only false pretence alleged is that more money was due and owing than was really due. The attention of the Court of Quarter Sessions was not called to the case of Regina v. Woolley (a). In that case the application of the statute was pushed further than in any other case, but I think I can distinguish it from the present. It is true that Lord Campbell said in that case, that if a tradesman, knowing that a cus- tomer owes him nothing whatever, says that he owes him hi., and gets the money, he comes within the statute ; but even assuming that that is so, it is not the case here. It is not denied that there was some money due to the defendant, and his statement is simply an overcharge. The first count of the indictment in Reg. v. Woolley states, that the prisoner was secretary to a lodge of which the prosecutor was a member; that the prose- cutor was indebted to the lodge in two shillings and twopence, and that the defendant falsely pretended that a larger sum was due from the prosecutbr to the lodge. There is this distinction between that case and this, that there the fact was peculiarly in the knowledge of the prisoner who, as secretary, kept the accounts of the lodge ; and it is also to be observed that the atten- tion of the Court does not appear to have been directed to the form of the indictment. The first count of the indictment in Regina v. Leonard (6), which was held by the fifteen Judges to be good in form, alleged that the defendant, a servant of the prosecutor, unlawfully and falsely pretended that a certain account kept by him (the defendant) was a true and correct account, and that a certain sum was (a) 1 Den. Cr. Ca. 559. (6) 2 Carr. & K^. 514. CROWN CASES RESERVED. 467 then due in respect of work performed for and on 1855. account of the prosecutor ; hut that count, as will be qates's seen, was framed on specific facts which themselves Case. constituted a false pretence ; here the indictment shews no false account, no false allegation that work was done, but simply a claim of a certain sum as due and owing from the prosecutor to the defendant. The case o^ Hamilton v. Regina (a), in error, is also distinguishable from this. There the indictment charged that the defendant did falsely pretend that he, the defendant, then was a captain in her Majesty's 5th regiment of Dragoons. There was, therefore, in that case a false pretence of an existing fact. J. B. Maule, for the Crown. The facts in Regina V. Woolley (b) were simply these. There was a certain sum due from the prosecutor to the club of which the defendant was secretary, but the defendant asked for a great deal more, and it was unsuccessfully contended that that was simply a representation of the existence of a debt. The language of Lord Campbell C. J. in that case was very strong, and it was in answer to this question put by the Counsel for the prisoner, "If A. tells B. that he owes him 51., and B., though really owing him nothing, pays him 51., is that a false pretence?" that his Lordship said, " If a tradesman, knowing that a customer owes him nothing whatever, says that he owes him 51., and gets the money, I think he comes within the statute." Now here is a demand of a sum in excess of what was really due, and it cannot be distinguished in principle from the case put by Lord Campbell, because the defendant had a legitimate claim for part of the sum demanded. In Regina v. Woolley the demand was in writing, but there is no difference between a demand (fl) 9 Q. B. 271. (*) 1 Den. Cr. Ca. 559. N N 2 468 CROWN CASES RESERVED. 1855. made in writing' and one made ore tenus. Nor does ^oI^Esv" the indictment in this case appear to be distinguishable ^'""'- in principle from the first count of the indictment in Regina v. Leonard (a), which was held to be good. WiGHTMAis J. referred to the case oi Bex v. Reedib). Maule J.— In Hamilton v. Regina (in error) (c), Lord Denman C. J. said, " I am sure that Rex v. Reed was not before the Judges. That decision is not overruled now ; for it never took place." Pollock C. B. The decisions when Rex v. Reed was said to have been considered by the Judges were certainly not of so much weight as now, when these cases are decided publicly and Counsel heard on both sides. Crompton J.— These cases can generally be. re- solved into the representation of an existing fact ; but my difficulty here is to see what you mean by "due and owing." Maule J.— The allegation in the indictment being in effect that the defendant made a statement that a debt was due and owing to him, knowing that state- ment to be false and for the purpose of eflfecting a fraud, it excludes the idea of a disputed account, or that what is due and owing is a conclusion of law, and amounts to a false statement that a debt was existing. Parke B. — If the prisoner had said that so much work had been done, when it had not, this case might have been like Regina v. Leonard, 'he\\\^ a false statement of a fact and not a false estimate. Where the demand is on a quantum meruit, and a false and fraudulrnt estimate is made, I doubt if that is within the statute ; and all these counts might be supported (a) 2 Car. & Kir. 514. (5) 7 Car. & P. 848. (c) 9 Q. B. 271. CROWN CASES RESERVED. 469 b}' evidence of what would be nothing more than a 1855. false and fraudulent over-estimate of the value of the , Oates's work. Case. Maule J. referred to Regina v. Woolley (a). Parke B — That case was decided on the facts only. The form of the indictment was not considered. It was not in arrest of judgment, or there might have been some doubt. Johnston, in reply. The work done was ascertained, and the false claim is in respect of the value of that work. The existing fact is true, and the alleged false statement is merely an estimate of the unascertained value of the ascertained work. Pollock C. B — The decision in Regina v. Wool- ley {b), in the first instance, seemed to be an authority in favour of an indictment such as this ; but, as my brother Parke observed during the argument, in that case the attention of the Court was not called to the form of the indictment, but only to the facts. If a man is in the habit of selling a particular article for 12s., and charges lbs. for it, it is a mere overcharge, and cannot be made the subject of an indictment for obtaining money by false pretences. Considering this as an allegation merely that so much was " due and owing," it may involve many questions both of law and fact. It may involve the price to be paid, the value of the work, the credit to be given, and the terms of payment. The allegation of a false pretence should be clear and precise, in order that you may see upon the face of the indictment whether it discloses a false statement of an existing fact. We think tbe in- dictment in this case cannot be sustained, and I cheer- fully concur in this judgment, because I think the statute was never intended to extend to cases where the (a) 1 Den. Cr. Ca. 559. (6) 1 Den. Cr. Ca. 559. 470 CROWN CASES RESERVED. 1855. transaction between the parties is really one of buyitig Q^^^^,^ and selling, although there may be a degree of fraud Case. in the representations made by the vendor. Parke B— An indictment for false pretences must disclose a false pretence of an existing fact. In this case there is merely a fraudulent claim in respect of a quantum jwerwii of the prisoner's work and labour; and the indictment would be supported by evidence that the prisoner made a false estimate of the value of his work. I do not think that is an indictable offence. The short ground of my judgment is, that the indict- ment contains no false statement of an existing fact. The decision in Eeg'ina v. Woolley (a) went wholly on the facts, and the form of the indictment was not considered by the Court. In this case the false pre- fence consists of nothing more than what might be mere matter of opinion, and it would be frightful if every person who made an overcharge should be liable to a criminal prosecution. WiGHTMAN J. — I am of the same opinion. To con- stitute a false pretence there must be a statement of a particular existing fact. Here it is merely said that the defendant falsely pretended that a certain sum of money was due and owing; and this indictment might be supported by evidence of a mere overcharge. In Regina v. Woolley {a) the indictment was open to the same objection, but that case was reserved on the facts, and the Court did not consider the form of the in- dictment ; here, on the contrary, the facts are not before us, but merely the form of the indictment. Crompton J. — I am of the same opinion. The indictment avers no misrepresentation of an existing fact, but merely a false representation that a certain sum was due and payable, and that averment might (o) 1 Den. Cr. Ca. 559- CROWN CASES RESERVED. 471 be proved by evidence of a wrongful overcharge, or a 1855. njisrepresentation of a matter of law. The false state- oates's tnent that money is due and payable, does not neces- *^*^^- /sarily involve a false pretence of an existing fact. Chowder J — I am of the same opinion. Our at- tention is called to the form of the indictment, and to that alone; and it is consistent with the language of the indictment that there might not have been a false representation of an existing fact, but only a false esti- mate of the value of the work, and I am not prepared to say that that would be the subject of an indictment. Regina v. Woolley is not in point. There the Court looked to the facts only, and not to the form of the indictment. Conviction quashed. The following case was reserved for the opinion of The prisoner, the Court of Criminal Appeal by Mr. Baron Martin, a^ehad'of"^ Jane Perry was indicted for the murder of her which she bastard child. There was no evidence of the murder, recently de- but it was proved by a surgeon that he was sent for by I'J^T^f' '*.'* r J & ^ J the intention the members of the family where the prisoner lived as of concealing ^ . ^ 1 MI 1 . the dead body servant, in consequence oi her illness; that upon see- of the child ing her he suspected she had iust ffiven birth to a f"""™ a sur- . ' _ JO geon, placed cliild, and examined her person, and found she had itunderaboi- ster on which she laid her head. It was assumed in the case that she meant to remove the body elsewhere when an opportunity occurred. Held, (Pollock C. B. dissentiente), that she was upon these facts properly convicted of endeavouring to conceal the birth of the child by secretly dispos- ing of the dead body, as it is not necessary in order to constitute that offence under 9 Geo, 4, c. 31, s. 14, that the body should be put in a place which is intended to be the place of its final deposit. 472 CROWN CASES RESERVED. 1855. been recently delivered, and asked her several questions Perry's Qn the subject, but could get no satisfactory answer. ^'"*- He then went out of the room, leaving the prisoner alone lying on the bed. He immediately heard the door being locked and returned to it, and insisted upon its being opened, which the prisoner did, and was returning to the bed as the surgeon entered. When he arrived at the bedside she had laid down her head upon the bolster, and was pulling the bed clothes over her person, and he then found the dead body of the child under the bolster with her head partly over it. He asked her where the child had been before, but could get no answer. The question I desire to be answered by the Court is, whether, assuming that the prisoner placed the dead body of the child under the bolster with the intention of endeavouring, as far as she could, to conceal the body from the surgeon, it was such a disposing of the dead body as to be an offence within the 9 Geo. 4, c. 31, s. 14. It may be assumed that she intended to remove the body to some other place when an opportunity offered. If the Court think it was not an offence they will please order the prisoner to be discharged, as I respited her until the opinion of the Court was obtained. This case was considered on the 28th of April 1855, by Pollock C. B., Parke B., Wightman J., Crompton J. and Crow^der J. No Counsel appeared either for the Crown or for the prisoner. The learned Judges retired to consider the case. Pollock C. B. did not return into the Court when judgment was delivered. Parke B. — The Lord Chief Baron differs from the rest of the Court, and thinks that this case does not shew a disposition of the body of the child within the CROWN CASES RESERVED. 473 meaning of the statute ; but he does not wish the case 1855. to be reserved for argunaent before all the Judges (a), p^^^^s The rest of the Court think that there was such a dis- Case. position as is within the statute. It has been already decided, and that decision has been since acted upon, that the words " secret burying or otherwise disposing of the body" do not require that the body should be put in some place which is intended to be the place of its final deposit. In Regina v. Goldthorpe (b) it was decided, that hiding the dead body of a child between the bed and the mattrass was a sufficient disposition of the body within the meaning of the statute. There is no difference between that case and the present. There is clearly a disposing of the body, and no one can sup- pose that the prisoner did not mean thereby to conceal the body and prevent inquiry. The body was not put in a final place of deposit, but that is uot necessary ; and there was a secret disposal of it within the statute. WiGHTMAN J. — It has already been decided that a final disposition is not necessary, but that a temporary disposition is sufficient to constitute the offence. Crompton J. concurred. Crowder J. — I am of the same opinion. A tem- porary disposition of the body in order to conceal the birth is sufficient. Besides the decision in Regina v. Goldthorpe, there are the cases of Regina v. Farn- him (c), and Regina v. Hughes {d), and it is now too late to construe the words " secret burying, or other- wise disposing of the body" as applying only to the place of final deposit. Conviction affirmed. (a) In a note to Regina v. Wiley, of the whole Bench. 2 Den. Cr. Ca. 40, it is stated that (6) 2 Mood. Cr. Ca. 244 ; S. C. the Judges had resolved that when- Car. & Mar. 335. ever the Court of Criminal Appeal (c) 1 Cox Cr. Ca. 349. were not unanimous, the case should (d) 4 Cox Cr. Ca.447. be brought before the consideration 474 CROWN CASES RESERVED. 1855. REGINA V. WILLIAM FROST AND JOHN RUSSELL. In an indict- ment, under 9 Geo. 4, c. 69. s. 2, for assaulting a gamekeeper of the Duke of Cambridge, the Duke was described ' George The following case was reserved for the opinion of the Court of Criminal Appeal by Thomas Puckle Esquire, Chairman of the General Quarter Sessions for the county of Surrey. At the General Sessions of the Peace of our lady the Queen holden at St. Mary, Newington, in and for the county of Surrey, on Tuesday the 2nd day of derickCharies January, in the year of our Lord 1855, William Duke of Cam- PfQgt and John Russell were tried and convicted of bridge. It was proved an assault upon a gamekeeper under the following on the trial . , . that " George indictment. William" Surrey.} The iurors of our ladv the Queen upon were two or _ -^ -■ •> - . . his Christian their oath present that at the time of the committing that he had ^^ the assault hereinafter mentioned to wit on the other Chris- ninth day of December in the year of our Lord one tian names ■' _ •' thousand eight hundred and fifty-four in the night time to wit about the hour of twelve in the night of the same day William Frost and John Russell were unlawfully upon certain land in the occupation of one George William Frederick Charles Duke of Cambridge situate at the parish of Kingston upon Thames in the they were en ^ • ^ i . i satisfied with county OT Surrey armed with a gun and with certain onhJidentlty bludgeons and sticks and other offensive weapons for of the Duke, the purpose of then and by night as aforesaid un- Held, l.That ' ' J a the convic- tion was wrong, as matter of description in an indictment, though unnecessarily alleged, must be proved as laid. 2. That the Court of Quarter Sessions were not bound to amend at the trial ; but that, under the 14 & 15 Vict. c. 100, s. 24, they might in their discretion have made an amendment by which the conviction would have been supjjorted, by striking out all the Christian names. 3. That an amendment by striking out only the two names which were not proved, would have been wrong. 4. That all amendments should be made before a case goes to the jury. 5. That it was now too late to amend. which were unknown to the witnesses and were not proved. The jury found a verdict of guilty, and stated that CROWN CASES RESERVED. 475 lawfully taking and destroying game and that the ]855. said William Frost and John Russell were then so pj^^j^^.g being upon the said land by night as aforesaid armed Case. with the said gun bludgeons and sticks and other offensive weapons for the purpose aforesaid by one Henry Edson the servant of the said George William Frederick Charles Duke of Cambridge the said Henry Edson then having lawful authority to seize and apprehend the said William Frost and John Russell found and that he the said Henry Edson being then about to seize and apprehend the said William Frost and John Russell for the offence aforesaid the said Henry Edson then having lawful authority so to do they the said William Frost and John Russell with the gun aforesaid and with the bludgeons and sticks and other offensive weapons aforesaid which they the said milium Frost and John Russell in their hands then held did then unlawfully assault and beat the said Henry Edson 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. At the trial none of the witnesses were able to prove the Christian names of the Duke of Cambridge as laid in the indictment and found by the grand jury. One witness only swore that George William were two of the Christian names of the said Duke ; that he believed the said Duke had some other Christian names, but he could not say what they were. Upon this it was moved by the Counsel for the prisoners, upon the authority of The Queen v. The Earl of Cardigan, that as the Christian names of the Duke of Cambridge had not been proved as laid in the indictment, the Court should direct an acquittal of the prisoners. On the other hand it was moved by the Counsel for the prosecution, that the Court should amend the indictment under stat. 476 CROWN CASES RESERVED. 1855. 14 & 15 Vict. c. 100, by striking out the words pjj^g^.g " Frederick Charles." Case. The Court refused to amend the indictment because no sufficient evidence was offered to enable it to do so; and the Court also refused to direct an acquittal, but left it to the jury to say whether they were satisfied by the evidence of the identity of the said Duke of Cam- bridge as occupier of the land in question, and as master of the said Henry Edson, in which event they, the jury, would consider the case upon its merits generally, and give their verdict accordingly. The jury there- upon, after a short consultation, brought in a verdict of guilty generally against both the prisoners, alleging at the same time that they were satisfied with the evidence of the identity of the said Duke. The Court reserved the following two points for the consideration of the Justices of either Bench and Barons of the Exchequer. First, whether it was bound to amend the indictment, upon the insufficient evidence above mentioned, by striking out the two Christian names of the said Duke of Cambridge, viz. Frederick and Charles, which had been found by the grand jury, and respecting which no evidence whatever was given at the trial. And secondly, whether, having refused to amend, the Court acted properly in submitting the case to the jury in the manner above mentioned. The Court postponed the judgment, and committed the said William Frost and John Russell to prison until such questions should have been considered and decided. This case was argued on the 28th o^ April 1855, before Pollock C. B., Parke B., Wightman J., Crompton J. and Chowder J. Robinson appeared for the Crown, and Charnock for the prisoners. CROWN CASES RESERVED. 477 Charnock read the case, and stated the questions for 1855. the consideration of the Couit. He relied upon Lord frost's Cardigan's case {a). He was then stopped by the ^^^^• Court. Robinson, for the Crown. It is submitted that the sessions ought to have amended, and that the whole of the Christian names may be disregarded as surplusage. The rule as to strict proof of matter of description is for the purpose of enabling a defendant to plead autrefois acquit; but here the identity of the Duke was expressly found by the jury. JReg. v. Gregory {b) is an authority in my favour. There the prosecutor was in a criminal information described as His Serene Highness Charles Frederick Augustus William Duke of Brunswick and Luneburg. His name was Charles Frederick Augustus William D'Este; and, although he had formerly been reigning Duke of Brunswick and Luneburg, and was still commonly called by that title, he had ceased to be reigning T)\x\e de facto ; and the Court of Queen's Bench held that the de- scription in the information was sufficient. Farke B. — The evidence here is that the Duke of Cambridge had two of the Christian names alleged in the indictment, and other names which were not proved. If there had been evidence that the Duke was known by some other Christian name than those alleged in the indictment, the Sessions might have amended, but they were not bound to amend. Robinson. All the Christian names are surplusage, and may be struck out; and if the Christian names be omitted altogether, the words " Duke of Cam- bridge" will stand alone in the indictment as a descriptive appellation, and will be suflScient. By (a) Dom. Proc. 1841, I Town- of House of Lords, 1841. send's Moo. State Trials. 212 ; (S) 8 Q.. B. 508. S. C. Reports published by order Case. 478 CROWN CASES RESERVED. 1855. the 14 & 15 Vict. c. 100, s. 24, it is provided, that no Fkost's indictment shall be held insufficient for that any person in it is designated by a name of office, or other descriptive appellation, instead of his proper name. But before that statute there were several decisions, on the authority of which the Court of Queen's Bench acted in Regina v. Gregory (a). In Rex v. SuUs{b), in an indictment for larceny, the goods stolen were laid as the property of Victor]/ Ba- roness Turkheim: on it being proved that the pro- secutrix did possess the title of Baroness Turkheim, the indictment was held sufficient, although it was also proved that the name of the prosecutrix without her title was Selina Victoire. In Regina v. Pitts {c) it was held by Erskine J., that in an indictment for larceny of goods, the property of a peer who is a baron, the goods were not properly laid as the goods and chattels of " G. T. R. Lord D.," without styling him Baron D., as the proper way to describe a peer is by his Christian name and his degree in the peer- age, as Duke, Earl, Baron, or the like ; but in a note to that case it is stated that in Regina v. Elliott (d), at the same assizes, the defendant was indicted for entering, with two others, armed, &c., on land of " The Right Honorable William Fitzhardinge Lord Segrave," and the same objection was taken, when Erskine J. said that he had great doubt about the correctness of his ruling in the case of Regina v. Pitts ; and the learned reporters go on to state that they have the authority of that learned Judge for stating, that upon further consideration, and on consultation with the other Judges, he was satisfied that the descrip- tion in both indictments was sufficient. In Rex v. (a) 8 Q. B. 509. {d) Note to Re^. v. Vitt, Carr. (6) 2 Leadh's Cr. Ca. 861. & P, 772. (c) 8 Carr. & P. 771. CROWN CASES RESERVED. 479 Grahamia), where the property was laid in the 1855. indictment as the property of James Hamilton Esq., Frost's ~ commonly called the Earl of C, the Court, in the Case. exercise of their common law jurisdiction, held that the words " commonly called" might be rejected as surplusage. Then, since the statute 14 & 15 Vict. c. 100, there is the case of Regina v. Sturge (b). There an indict- ment for obstructing a highway described it as a foot- way leading from A. to B. It appeared in evidence that the way in question passed from A. to B., through C, and that from A. to C. it was a carriage way, and from C. to B. only a footway. The obstruction com- plained of was between C. and B., and on the objec- tion that this was a misdescription of the way, a verdict was entered for the defendant, but the Court of Queen's Bench directed that a verdict should be entered for the Crown, Lord Campbell C. J. saying that the 14 & 15 Vict. c. 100 was meant to apply to all cases where amendments may be made in the furtherance of justice. Crompton J. — In that case leave was reserved to enter a verdict for the Crown, if the Court above thought an amendment ought to be made. Robinson. As to the question of identity I presume that, for the purpose of ascertaining that question, your Lordships would, if necessary, take judicial notice of the fact that there is and can be but one Duke of Cambridge in this country. But the identity was for the jury, Regina v. Davis (c) ; and they expressly found that the owner of the land and the master of the gamekeeper who apprehended the de- fendant, was the person named in the indictment. (a) 2 Leach's Cr. Ca. 547. (*) 23 Law Jour. M, C. 173. (c) 2 Den. Cr. Ca. 231. 480 CROWN CASES RESERVED. 1855. Pollock C. B.— We are all of opinion that the Frost's convictioD is bad, and that the prisoners must be ^*^^- discharged. It is a general rule of law that what- ever is laid as matter of description, must be proved as laid. The Duke of Cambridge is here described as George William Frederick ChUrles, and none of the witnesses called proved that those were his names. The case of Lord Cardigan is directly in point, and we cannot overrule it. We are asked if the Court of Quarter Sessions were bound to amend. They cer- tainly were not. When an amendment is asked, the Court must exercise their discretion. They could not have properly amended this indictment, except by striking out all the Christian names. They might have done that, but certainly were not bound to do so; and no amendment having been made, the prisoners ought to have been acquitted. Parke B. — I am entirely of the same opinion. The Court are never bound to jTmend in any case, although they have under the statute power to do so ; and whether they ought to have amended in this particular case is an idle question, because it is now too late to do so. As it was, they were quite right not to make an amendment in the manner in which they were asked to make it ; but they would clearly have been wrong if they had been applied to to strike out the Christian names altogether, and leave the prosecutor described by his name of office as the Duke of Cambridge, and had refused to do so. But, after verdict, the questions whether the Court should have or could have amended are unimportant, since any amendment that is made ought to be made before the case is allowed to go to the jury, it being the business of the jury to give their verdict secundum allegata et probata ; and their verdict must be pro- nounced upon the indictment as amended. This CROWN CASES RESERVED. 481 indictment, not being amended, stands with all the 1855. Christian names in it, and this being matter of de- "frost's scription, the prosecutor was bound to prove, not that the Duke was owner of the land, but that the owner had the title and the Christian names alleged, though unnecessarily, in the indictment. WiGHTMAN J. — I am clearly of opinion that so long as the indictment contained the Christian names the prosecutor was bound to prove them as laid. The case of the Earl of Cardigan is not to be distinguished from the present on that point. I am also of opinion, that although the sessions might have amended by striking out all the Christian names, and, if they had so amended, the allegations in the indictment would have been proved by the evidence ; still, they were not under any legal obligation to do so. It is now, however, unimportant to consider the question of amendment, as all amendments must be made in the Court where the record is before verdict. Crompton J. — I am of the same opinion. The names being matter of description, must be proved as laid. It is important that it should be understood that, if an amendment be made at all, it should be made before verdict, as the jury must find their ver- dict upon the pleadings as amended, and secundum allegata et probata . Crowder J. — I agree also with the rest of the Court. The Court of Quarter Sessions was not bound to amend at all, and ought not to have amended as proposed. If they had made any amendment at all, it ought to have been by striking out all the Christian names. VOL. I. o o 482 CROWN CASES RESERVED. 1855. REGINA V. JOHN RUNDLE. The prisoner The following case was reserved for the opinion rnS'Jlf of the Court of Criminal Appeal, by Mr. Justice an indictment CrOWDER. under lo& 17 ■, -, p l t-i Vict. c. 96, The prisoner was tried before me at the Devon thathtTavf Spring Assizes, 1855, on an indictment framed upon ing the care the 16 & 17 Vvct. c. 96, s. 9, which also contained a and charge of his wife, count for a common assault. abuseanS- There were six counts upon the statute. treat her; The first count charged that John Rundle, the taining a prisoner, " had the care and charge of Amelia his commonVs- ^ife, a lunatic," within the meaning of the statute, sauit. Held, and that " he did abuse and ill-treat her," so being that the pri- soner was not such lunatic. l^^lhe^xT The second count charged the same, substituting or charge of the words that he did " wilfully neglect," for the a lunatic , ■••,■, ^ ^■l^ » within the words " did abuse and ill-treat. ^Ct^tMtl The third and fourth counts the same as the first inasmuch as and second, with the additional averment that he its provisions ,, „ , „ , , , were not in- Well knew her to be a lunatic. tended to ap- r^^^ gf^^ and sixth counts the same as the first and ply to persons whose care or second. Substituting only an averment that the said chargearises . ,. ,, ,, , , , . „ ~ from natural Amelia was " a person alleged to be a lunatic, ior duty; and the averment that she was a lunatic. that so much of the con- It appeared in evidence, that for some considerable related to the t™e while the Said John and Amelia were living the"tatute^^' together as man and wife she was a lunatic, and that must be he knew her so to be, and that during such time he quas e . abuscd, ill-treated, wilfully neglected and assaulted her. The jury found the prisoner guilty upon all the counts in the indictment. CROWN CASES RESERVED. 483 No proceedings of any kind had been taken by any 1855. one in respect of the wife's lunacy or alleged lunacy, rundlb's The point on which I desire the opinion of the Case. Court of Criminal Appeal is, whether the prisoner, upon this evidence, was indictable under the 9th section of the said act as " a person having the care or charge of a lunatic, or of a person alleged to be a lunatic," within the meaning of the latter part of the said section ? I sentenced the prisoner to five months and one fortnight's imprisonment on the count for a common assault, and on each of the other counts to a fortnight's imprisonment concurrently, to commence at the ex- piration of the first five months and a fortnight. If the Court should be of opinion that the counts upon the statute cannot be sustained, then the sentence to stand only on the count for a common assault. If any one of the other counts be sustained, then the sentence to stand also for the additional fortnights upon such counts. This case was argued on the 28th of April 1855, before Pollock C. B., Parke B., Coleridge J., Crompton J. and Crowder J. Stock {Karslakemth him) appeared for the Crown. No Counsel appeared for the prisoner. Stock, for the Crown, The question in this case is as to the proper construction of the 9th section of the 16 & 17 Vict. c. 96, by which it is enacted, that " if any superintendent, ofl&cer, nurse, attendant, servant, or other person employed in any registered hospital or licensed house, or any person having the care or charge of any single patient, or any attendant of any single patient, in any way abuse or ill-treat, or wilfully neglect any patient in such hospital or house, or such single patient, or if any person detaining or taking, 00 2 484 CROWN CASES RESERVED. 1855. or having the care or charge, or concerned or taking ^^^jjj^^'s part in the custody, care or treatment of any lunatic Case. or person alleged to be a lunatic, in any way abuse, ill-treat, or wilfully neglect such lunatic or alleged lunatic, he shall be guilty of a misdemeanor." I have to satisfy the Court that a husband is within the words in. the latter part of this section, and is guilty of the statutable offence if he ill-treats his wife knowing her to be a lunatic. The 16 & 17 Vict. c. 96 amends the 8 & 9 Vict. c. 100, and the two statutes are to be construed together as one act. Section 56 of the latter statute provides that ill-treatment of a patient shall be a misdemeanor ; and section 90, by providing that no person, except a person deriving no profit, or a committee, shall take charge of a single lunatic, except upon a medical certificate, shews that the act intended to deal with a class of persons other than those having charge of hospitals, and licensed houses. The earlier part of section 9 of the 16 & 17 Vict. c. 96 refers to persons employed in registered hospitals and licensed houses, and persons having the care or charge of single patients ; and the words following, " any person detaining or taking, or having the care or charge," can only apply to cases where the care arises from the connection of husband and wife, father and child, or some similar relation. If they do not apply to such cases, it is difficult to give them any meaning at all. Pollock C. B. — Might not persons bringing a lunatic before a Judge under a habeas corpus fall within the description, " any person detaining or taking, or having the care or charge ?" Pabke B. — The law obliges a husband to take care of his wife independently of her being a lunatic; he does not take care of her because she is a lunatic, but because she is his wife. CROWN CASES RESERVED. 485 Stock. If a husband is not included, then the 1855. absurdity follows, that a husband may put his lunatic Rundle's wife under the charge of his next door neighbour, Case. and the neighbour would be within the provisions of the statute, although the husband himself would not. Parke B. — Yes, that would do. The person so employed would be a person undertaking the care and charge for hire. Stock. The case not only finds that the wife was a lunatic, but that the husband knew her so to be. Pollock C. B. — We are all of opinion that so much of the conviction and punishment as relates to the counts framed upon the statute cannot be sustained, because, looking to the provisions of the statutes which have been referred to in argument, it is very clear that the Legislature never intended to interfere with a care and charge which is purely of a domestic nature, and arises from the relation of husband and wife, or other similar relation. It was not intended to add to the common law obligations of the master or head of a family, who, whether husband, guardian, relative or otherwise, is liable to be punished if he ill-uses any person under his control. It is contended that all other classes of persons are exhausted by the earlier part of the 9th section, and therefore that if relatives are not included in the words " any person," there would be no class of persons upon whom those words could operate ; but that is not so. All possible classes are not exhausted by the earlier part of section 9 ; persons bringing a lunatic up under a habeas corpus, and having the care and charge of him for that purpose, would fall within the words " any person ;" but I do not think they were intended to apply to persons having a custody of a purely domestic character. 486 CROWN CASES RESERVED. 1855. Parke B.— I am of the same opinion. The latter Bundle's words of Section 9 do not apply to persons who, having ^^'^- a natural duty to perform, have, as father, husband, or otherwise, merely the domestic custody of a lunatic. Such persons cannot be said to have the care or charge of a lunatic within the meaning of the statute. The other learned Judges concurred. Conviction, so far as it related to the counts upon the statute, quashed. 1855. REGINA V. JAMES MACKAY KEITH. The prisoner The following case was reserved for the opinion Tn^c'edon'^ of the Court of Criminal Appeal by Mr. Justice an Indict- CoLERIDGE. ment, framed m, . ■ i i <> i ttt • i upon the Stat. The prisoner was tried before me at the Warwick Wm!4,t.^66, Spring Assizes, 1855, on an indictment framed upon s. 18, for en- the 11 Geo. 4 & 1 Wm. 4, c. 66, s. 18. Upon the graving upon a plate part of a promissory note, purporting to be part of the note of a banking company. It was proved in evidence that the prisoner, being possessed of a promissory note of the B. L. Banking Company, had cut out the centre of the note on which the whole promissory note was written ; and had procured to be engraved upon a plate merely the royal arms of Scotland and the Britannia (which formed part of the ornamental border), the said arms and the Britannia being respectively placed upon the plate in the same position as that in which they would be found in a complete note of the company. The case stated that upon the facts submitted to the jury, the prisoner was rightly convicted subject to the question, whether such an engraving satisfied the words of the statute, as being an engraving upon a plate of " part of a bill of exchange or promissory note purporting to be part of the bill or note." Held, 1. That it did, as every part of what usually circulates as a note, the ornamental border as well as the obligatory words, is part of the note "within" the meaning of the statute. 2. That in order to ascertain whether that which was engraved on the plate " pur- ported" to be part of the note, extrinsic evidence was admissible; and that, for that purpose, the jury might compare the plate with a genuine note of the company. CROWN CASES RESERVED. 487 facts submitted to the jury he was, subject to the 1855. following question, rightly convicted. I passed sen- reith's tence on him, but having doubts whether on one point the charge could be sustained, I reserved that question for the opinion of the Judges. The prisoner being possessed of a one pound note of the British Linen Banking Company, had cut out the centre part on which the whole of the promissory note was written, and taken the ornamental border to Kynaston, a printer at Birmingham, representing that he wanted to have a plate made of this border, in- tending to fill up the centre with the title of some oil or cosmetic of which the firm in whose employ he represented himself to be were the vendors. Kynaston was not an engraver, and told him that he {Kynaston) must employ another hand to execute the royal arms of Scotland and the Britannia, which formed part of this border, to which the prisoner assented. Accordingly, an engraver of the name of Umfreville was applied to, who perceived at once the prisoner's real purpose ; and, having caused, through the police, a communication to be made to the bank- ing company, undertook the work with their authority, and made a plate, an impression from which I annex to this case (a), which was delivered to the prisoner, and he was apprehended with it in his possession. The words of the section are as follows: " If any person shall engrave or in anywise make upon any plate whatever any bill of exchange or promissory note for the payment of money ; or any part of any bill of exchange or promissory note for the payment of money purporting to be the bill or note ; or part of (a) The impression from the plate same place on the plate as they annexed to the case, shewed that would in an original note of the the royal arms of Scotland and the company. Britannia respectively occupied the 488 CROWN CASES RESERVED. 1855. the bill or note of any person or persons, body cor- "keith's porate or company carrying on the business of bankers Case. (other than and except the Bank of England), without the authority of such person or persons, body corporate or company," &c. I doubted whether a plate having on it merely the royal arms of Scotland and the Britannia, although placed as they are found in a complete promissory note of the banking company, satisfied these words, and request the opinion of the Judges thereon. This case was argued on the 28th of April 1855, before Pollock C. B., Parke B., Coleridge J., Crompton J. and Crowder J. Bittleston appeared for the Crown. No Counsel appeared for the prisoner. Bittleston, for the Crown. The doubt entertained by the learned Judge who reserved this case was as to the meaning of the word " purporting" in the 18th section of the statute ; and it is on the part of the prosecution contended, that although the decoration of the note does not, apart from the residue of that which appears on the face of the note, shew that it is a part of such note, the conviction may nevertheless be sustained. The parts here engraved are the royal arms of Scotland al the head, and the figure of Britannia on the left hand, and they purport to be part of a promissory note of the company. Whether this engraving purported to be part of a genuine note was a question for the jury. It is not necessary, in order to satisfy the statute, that the parts engraved should be such parts of the note as are required to give it validity; but it is sufiicient if any part is engraved which, with the addition of other parts, would resemble and purport to be a genuine note. CROWN CASES RESERVED. 489 In Regina v. Faderman (a), one of the plates con- 1855. tained a part of the foreign bill or note which was a "1keitiPs~ mere picture (b), and the particular words in the 18th Case, section of the statute, upon which this indictment proceeds, are the same as those in the 19th section of the same statute, which was the section relied upon in Regina v. Faderman (a). Pollock C. B The engraving of a mere orna- mental border is not an oflFeuce within the statute ; but whether the royal arms and the Britannia engraved on this plate purport to be part of a note of the com- pany, was a question for the jury. Bittleston. The picture is one of the marks by which the note is known. Crowder J. referred to Rex v. Goldstein (c) as to the meaning of the word " purport." Pollock C. B. — The conviction was right. Taking that portion of the section which is applicable to this case, it provides that if any person shall engrave any part of any promissory note, purporting to be part of the note of any company carrying on the business of bankers, without authority, he shall be guilty of felony. In this case the prisoner had engraved the arms of Scotland, which appear in the centre of the ornamental border of a promissory note of the British Linen Banking Company, and the figure of Britannia which appears on the left hatid side of a note of that com- pany, and nothing more; but the arms and the Britannia are placed in the plate in the same position as that in which they would appear in a genuine note. It is said that the arms and the Britannia are not part (a) 1 Den. Cr. Ca. 565, ^e indictment before the Court (6) This is so ; but in Regina v. oi Criminal Appeal. Faderman no question arose upon Cc) Russ. & R. 473. 490 CROWN CASES RESERVED. 1855. of the promissory note; and, no doubt, if we are to ^^^,^^,g take the word " note" as expressing merely the obli- Case. gatory part of a note and the formal words creating an obligation, that which the prisoner has engraved, or has procured to be engraved, is no part of the note ; but I think that the word " note" is used in the statute in its popular sense ; and if it were an offence to tear a promissory note, I think that offence would be completed if a person was to tear off the ornamental border, or indeed blank paper, forming part of the note. The question then is, do the armsand Britannia engraved on the plate in this case purport to be part of a promissory note of the company ? I think they do. To constitute the offence, that which is engraved must be capable of being used as part of a note, and be such as on comparison with a genuine note would purport to be a part of it. Now, on comparing the plate engraved in this case by the prisoner with a genuine note of the company, the jury have decided that the engraving does purport to be part of a note of the company, and. I think they have rightly so decided ; and no one looking at the plate and genuine note could have any doubt about it. The same sec- tion of the statute makes it an offence to engrave any words resembling a subscription to a promissory note. On an indictment for that offence the alleged sub- scription must be compared with a genuine one, in order to see if it resembles it ; and so here I think the jury properly compared that which was engraved by the prisoner with a note of the company, in order to ascertain whether it purported to be part of a genuine note. Parke B. — This conviction is good. The part of the note engraved need not, in order to satisfy the statute, be the obligatory part, which is in general very simple. If the construction of the word " pur- CROWN CASES RESERVED. 491 porting" contended for by the prisoner's Counsel were 1855. the correct construction, there would be very great keith's difficulty in reaching an offender at all, and the ^^^®' object of the Legislature would be frustrated. That object was to prevent persons from engraving parts of such notes as are circulated by banking companies. The first question is, whether, to bring a case within the statute, the thing engraved must purport upon its face to be part of a genuine note ? The word " pur- port " does not necessarily mean " purport on its face ;" nor would any instrument purport on its face to be a bank note, except it contained the obligatory words, and if, in order to say what the part engraved purports to be, you are restricted to looking only to the face of that which is engraved, a person might engrave nearly the whole of a note without its pur- porting to be part of a note. It is enough if the indictment shews that what is engraved purports to be part of a note of some of the banking companies, and in order to ascertain what the purport is, you must compare the part engraved with the genuine note. There is a provision in the latter part of the section prohibiting the engraving any words resem- bling, or apparently intended to resemble, any sub- scription to a promissory note. In order to see whether the forged signature resembles a signature to a genuine note, it would be necessary to compare the forgery with the genuine signature ; and so, in order to ascertain whether an engraving purports to be part of a note you must compare it with a genuine note. If a single dot or line only were engraved, there might not be enough to induce one to believe that the engraving purported to be part of a note ; but here the royal arms of Scotland and the Britannia are found in the same position as that which they would occupy in a genuine note ; and there is such a portion 492 CROWN CASES RESERVED. 1855. engraved that on comparison you can clearly see that jjj,j^^,g it purports to be part of a note of the company. Case. Coleridge J. — I have at length, after some doubt, come to the conclusion that this conviction is good. The first question for consideration is, what is the meaning of the word "purport?" The second is, how are we to arrive at the conclusion that an engraving purports to be part of a particular note ? We must give the word "purporting" a larger meaning than it ordinarily bears, or in many cases the provisions of the statute would be ineffectual. I think that the word " note" in the statute is not limited to the parts of a promissory note in a strict legal sense, but includes all that is on the paper upon which the note is written, and that the engraving, in order to constitute an offence, must be such as would, to a person who is acquainted with the genuine note, purport to be part of it. Suppose that the whole note has been engraved. To see that the engraving pur- ported to be a genuine note, I must have either in my own mind a previous knowledge of the genuine note, or I must, by having a genuine note before me, resort to extrinsic evidence in order to obtain that knowledge. How can you say what a thing purports to be without instituting a comparison ? If that is so with regard to a whole note, why may not the same process be adopted as to part ? Why may I not look at a genuine note and ascertain whether what is engraved purports to be part of it ? That is all that was done in this case, and the jury, on instituting this comparison, were satisfied that the engraving did purport to be part of a genuine note. Here the thing imitated was in part an ornamental figure oi Britannia, and I do not see why the imitation should not be compared with the original in the same way as you would compare the imitation of the figure of Britannia CROWN CASES RESERVED. 493 on the back of a counterfeit coin with the same figure 1855. on the back of a genuine coin, in order to ascertain "keith^ whether an imitation was intended. Case. Crompton J This being a highly penal statute, I also had at first considerable doubt, but I have arrived at the same opinion as the rest of the Court. The statute would be inoperative in many cases, unless we give a larger meaning to the word "purporting," than to say that it merely means appearing on the face of the engraving. I think the statute means that the engraving must purport to be part of a genuine note, to a person who is acquainted with the genuine note. I also think that the word " note" is used, not in the strict legal sense but in the popular sense, and includes the border and everything else which is upon the paper on which the note is written. Crowder J. — I have no doubt that the conviction was right, and that this case comes not only within the intention, but within the precise words of the statute. Extrinsic evidence was properly resorted to in order to ascertain whether the engraving resembled the genuine note, and indeed one cannot ascertain what a thing purports to be without having recourse to extrinsic evidence, and this applies equally whether the engraving purports to be part of a note or an entire note. By part of a note is meant any of those indicia appearing on a genuine note by which it is known ; and it is quite clear that two of those indicia appear upon the plate which the prisoner caused to be engraved. Conviction affirmed. 494 CROWN CASES RESERVED. 1855. REGINA V. THOMAS SMITH. The prisoner Xhe following case was reserved for the opinion of forreceiv- the Court of Criminal Appeal by Mr. Edwin James Klgt Jo Q- C, Recorder of Brighton. have been At the Quarter Sessions of the Peace for the borough appeared in of Brighton, holden at the Town Hall in the said ?hi'*p?os^ecu-** borough, before the Recorder of the borough, on tor, whilst in the 8th day of May, 1855, the prisoner, Thomas company at^,., -i- ■, ^ p -, • ^ • • i night with a omith, was indicted tor feloniously receiving a stolen pXlic-house! watch, the property of John Nelson, knowing the wherethe pri- soner and one H. and several other persons were, had the watch in question taken from his person, and charged^the prisoner with stealing it ; but upon a partial search by a policeman, it was not found. The prosecutor and the girl soon after went to a room in another house, which room was rented by her of the prisoner. After they had been there together about an hoUr the prisoner came to them, and asked the prosecutor if he had not lost his watch and what he would give to have it back ? The prosecutor said, " I would give a sovereign." The prisoner then said, that if the prosecutor would let the girl go with him he would get it back. The prisoner and the girl then went to a room in a house where the prisoner lived, in which room H. was. There was a table in the room, and, although there was no watch on the table when they entered the room, a watch was a few minutes afterwards seen on the table, which one of the witnesses said must have been placed there by H. The prisoner told the girl to take the watch and get the sovereign. She took it to her room to the prosecutor, and in a few minutes the prisoner and H. came to that room, and H. asked for the reward. The pr.osecutor gave H. half- a-crown ; the prisoner and H. left without the prisoner saying anything or receiving anything. Before the trial H. absconded. The Recorder told the jury that, if they believed that when the prisoner went to the girl's room and spoke about the return of the watch, and took the girl with him to the house where the watch was given up, he knew that the watch was stolen ; and, if they believed that the watch was then, with the cognizance of the prisoner, in the custody of a person over whom the prisoner had absolute control, so that it would be forthcoming if the prisoner ordered it, there was evidence to justify a conviction. The jury found a verdict of guilty; and, in answer to the Recorder, stated their belief that though the watch was in the hand or pocket of H., it was in the absolute control of the prisoner. Held, 1. That the direction to the jury was right. 2. That the conviction was right, and that there was ample evidence to support it. 3. That manual possession or touch is unnecessary in order to sustain such a con- viction ; but it is suflScient if there is a control by the receiver over the goods. 4. That a person having a joint possession with the thief may be convicted as a receiver. 5. That a conviction for receiving is good, although a conviction for stealing would have been supported by the same evidence if the jury had so found. CROWN CASES RESERVED. 495 same to have been stolen. It was proved that John 1855. Nelson, the prosecutor, between eleven and twelve Smith's o'clock on the night of the 12th of April in this year, *^*^^- was in a public-house called the Globe in Edward Street in the said borough ; he was in company with a prostitute named Charlotte Duncan, who lodged in a room of a house No. 17, Thomas Street, Brighton, which belonged to the prisoner, of whom she rented the room. The prisoner and five or six other persons were present in the apartment in the Globe Inn when the prosecutor and Charlotte Duncan entered : while the prosecutor was drinking in the Globe, his watch, being the watch named in the indictment, was taken from his person by some one who forced open the ring which secured the watch to a guard. The prose- cutor heard the click of the ring and immediately missed his watch, and taxed the prisoner as the thief. A policeman was sent for and a partial search made, but the watch was not found. The prisoner was present all that time, and also a man named Hol- lands was present all the time. Soon after the loss of the watch the prosecutor and the girl Charlotte Duncan went together to Charlotte Duncans, room in Thomas Street. After they had been there together little more than an hour the prisoner came into the room where they were, and said to the prosecutor, "Was not you in the Globe, and did not you lose your watch?" The prosecutor said, "Yes." The prisoner then said, " What would you give to have your watch back again ?" Prosecutor said, " I'd give a sovereign." Prisoner then said, " Well, then, let the young woman come along with me, and I will get you the watch back again." Charlotte Duncan and the prisoner then went together to a house close by, in which the prisoner himself lived. They went 496 CROWN CASES RESERVED. 1855. together into a room in which Hollands was. This Smith's was nearly one o'clock. There was a table in the Case. xoova ; on first going in Charbtte Duncan saw there was no watch on the table, but a few minutes after- wards she saw the watch there. The prisoner was close to the table. She did not see it placed there, but she stated it must have been placed there by Hollands, as, if the prisoner to whom she was talking had placed it there, she must have observed it. The prisoner told Charlotte Duncan to take the watch and go and get the sovereign. She took it to the room in 17, Thomas Street, to the prosecutor, and in a few minutes the prisoner and Hollands came to that room. Hollands asked for the reward. The prosecutor gave 5^oZZawafshalf-a-crown, and said he believed the watch was stolen, and told him to be off. Hollands and the prisoner then left. The prisoner did not then say anything, nor did the witnesses see him receive any money. Hollands absconded before the trial. The Recorder told the jury that, if they believed that when the prisoner went into the room 17, Thomas Street, and spoke to the prosecutor about the return of the watch, and took the girl Duncan with him to the house where the watch was given up, the prisoner knew that the watch was stolen ; and, if the jury believed that the watch was then in the custody of a person with the cognizance of the prisoner, that per- son being one over whom the prisoner had absolute control, so that the watch would be forthcoming if the prisoner ordered it, there was ample evidence to justify them in convicting the prisoner for feloniously receiving the watch. The jury found the prisoner guilty, and, in answer to a question from the Re- corder, stated that they believed that, though the watch was in Hollands' hand or pocket, it was in the prisoner's absolute control. CROWN CASES RESERVED. 497 Sentence was passed on the prisoner, but was res- 1855. pited until the opinion of the Court could be taken. smith's The question for the opinion of the Court is, if the ^^^'^ conviction of the prisoner is proper ? This case was argued on the 2nd day of June 1855, before Lord Campbell C. J., Alderson B., Erle J., Platt B. and Crowder J. No Counsel appeared for the Crown. Creasy, for the prisoner. The direction under which the verdict was returned was wrong in point of law. First, there was no sufficient proof of possession by the prisoner, and the Recorder was not justified in leaving it to the jury to consider whether the watch was in the prisoner's absolute control. Secondly, if Hollands' possession is to be treated as the possession of the prisoner, there is no proof that the watch was stolen by any one. Thirdly, the evidence points rather to a stealing than a receiving by the prisoner. With respect to the possession of the watch by the prisoner, it was clearly never in his manual posses- sion, nor can it, upon the facts, be said, that it was ever constructively in his possession. Assuming the watch to have been stolen by some one, and that one to be Hollands, it was throughout in the possession of Hollands, and not in the possession of the prisoner ; nor can it be said that a constructive possession arose from any control which the prisoner could have over Hollands, who was a man of full age. In Hegina v. Wiley (a) two thieves were seen to come at midnight out of a house belonging to the prisoner's father. One of the thieves carried a sack containing the stolen goods, the other thief accompanied him, and the pri- soner preceded thera, carr3'ing a lighted candle. All (o) 2 Den. Cr. Ca. 37. VOL. I. P P 498 CROWN CASES RESERVED. 1855. three went into an adjoining stable belonging to the Sm^jj's prisoner, and shut the door. Policemen entered the Case. stable, and found the sack lying on the floor, tied at the mouth, and the three men standing round it as if they were bargaining, but no particular words were heard. In that case it was held by eight Judges to four, that on this evidence the prisoner could not be convicted of receiving stolen goods ; inasmuch as, although there was evidence of a criminal intent to receive, and of a knowledge that the goods were stolen, yet the exclusive possession of them still re- mained in tfhe thieves, and therefore the prisoner had no possession, either actual or constructive. So here, supposing the watch to have been stolen by Hollands, there was nothing to shew a receiving by the prisoner from Hollands, and the prisoner's statement merely shews that he thought he had the means of inducing the person who had stolen the watch to give it up. In Regina v. Wiley, Patteson J. says (a), " I do not think it necessary that in order to constitute a man a receiver he should touch the goods, or that, under certain circumstances, a party having a joint possession with the thieves, may not be convicted as a receiver ; but I think, to make a person liable as a receiver, the goods must be under his control." Parke B., in his judgment in the same case, says, "It seems to me that there must be a distinction made between re- ceiving the stolen goods and receiving the thief" (i). (a) Creasy was quoting from the goods by the receiver which there report 20 Law Jour. M. C. 5. In was not here." the judgment of Patteson J., as (i) The judgment of Parke B., given in 2 Den. Cr. Ca. 48, his as reported in 2 Den. Cr. Ca. 49, is Lordship is reported to have said : as follows: — "We have only to " I think the conviction wrong. I consider the precise point sub™ do not consider a manual possession mitted to us in the case reserved, or even a touch* essential to a re- The taking 'as above' was said, by ceiving. But it seems to me that the chairman, to amount to a re- there must be a control over the ceiving ; that only incorporates so CROWN CASES RESERVED. 499 The finding of the jury in this case amounts to this, i855. that the physical possession was in Hollands, and that ., ■ . , , Smith's tnere was no actual possession by the prisoner. Then, Case. is there anything to shew a constructive possession by .him? Hollands placed the watch on the table, but it remained in his personal possession all the time, and never was in the possession of the prisoner at all. Alderson B. — Is there not evidence here of a joint possession by the thief and the prisoner? If you admit that, you are out of Court. Erle J. — Can you extract a definite principle on that very vaguest of all vague matters ; what is the meaning of the word possession ? Creasy. The only way to do that is by an ex- haustive process, shewing what is not a possession. Proving that a person is present with a corrupt pur- pose, when stolen property is lying about, is not a receiving. Here the prosecutor taxed the prisoner with the theft, and indeed, supposing there to be pos- session, and taking the finding of the jury that the watch was under the absolute control of the prisoner to be correct, the recent possession is proof of stealing and not of receiving. In 2 Russ. on Crimes, 247, it is laid down that upon an indictment for receiving much of the transaction as relates think the possession of the re- to the taking of the goods into the ceiver must be distinct from that stable. We must not, therefore, of the thief; and that the mere speculate on the question whether receiving a thief with stolen goods the three prisoners were all parti- in his possession would not alone cipating in the wrongful act, or what constitute a man a receiver." On would be the legal consequences to the question of joint possession, each of their so doing. Receiving Colehidge J. in the same case must mean a taking into possession remarks, "That in that case joint actual or constructive, which I do possession is excluded by the com- not think there was here. The mon intention;" and Alderson B. prisoner took the thieves into the says, " I think that there may be a stable; but he never accepted the joint possession of goods in a thief goods in any sense of the word and a receiver; but there was no except upon a contingency, which, evidence of that here." as it happened, did not arise. I P P 2 500 CROWN CASES RESERVED. 1855. stolen goods, tKere should be some evidence to shew Smith's that the goods were in fact stolen by some other person, Case. a^j recent possession of the stolen property is not alone sufficient to support such an indictment, as such possession is evidence of stealing and not of receiving ; and for this the decision of Patteson J., in Rex v. Densley (a) is cited ; and in Rex v. Sarah Cordy (6) Littledale J. says, " In a case on the early part of the circuit, the only evidence was recent posses- sion, and the Counsel for the prosecution urged that that was evidence of receiving, but I held that it was not. I hold it essential to prove that the property was in the possession of some one else before it came to the prisoner." Then does not all the evidence in this case point to a theft -by the prisoner, and not a receiving by him after the theft was committed by some other person? There is no evidence of receiving unless you take the evidence which is said to shew possession, and that points to a stealing and not to a receiving. Lord Campbell C, J I think that the conviction was right. In the first place the direction of the learned Recorder was unexceptionable. According to the decided cases as well as to the dicta of learned Judges, manual possession is unnecessary. If' we were to hold a contrary doctrine, many receivers must escape with impunity. Then it has been held in decided cases, including Regina v. Wiley (c), that there may be a joint possession in the receiver and the thief; that is the ratio decedendi on which the judgment in that case proceeds. Then, was not there ample evidence to justify the jury in coming to the conclusion at which they arrived ? I think there was. They might, it is true, have drawn a (o) 6 Car. & P. 399. " cited 2 Russ. on Cr. 248. (6) Gloucester Lent Ass. 1832, (c) 2 Den. Cr. Ca. 37. CROWN CASES RESERVED. 501 difiFerent conclusion, and have found that Smith^v/aP l®^-^^ the thief; and if they had drawn that conclusion, he Smith's would have been entitled to an acquittal. Another ^^^' inference which they might have drawn, and which would also have resulted in a verdict of not guilty, was, that Holland, being the thief, the watch remained in his exclusive possession, and that the prisoner acted as his agent in restoring the watch to the pro- secutor; but the jury have come to a different conclu- sion, and I think they were justified in so doing. We have instances in real life, and we find it represented in novels and dramas drawn from real life, that persons are employed to commit larcenies, and so deal with the stolen goods that they may be under the control of the employer. In this case Hollands may have been so employed by the prisoner, and the watch may have been under the prisoner's control, and if so, there was evidence of a possession both by Hollands and the prisoner. Alderson B. — There was abundant evidence from which the jury might come to the conclusion at which they arrived, although there was evidence the other way. Erle J. — The doubt in these cases has arisen as to the meaning of the word " receive," which has been supposed to mean manual possession by the receiver. In Regina v. Wiley, Patteson J. says, that a manual possession, or even a touch, is not essential to a receiving, but that there must be a control over the goods by the receiver. Here the question of control was left to the jury, and they expressly found, that though the watch was in Hollands' hand or pocket, it was in the prisoner's absolute control. Platt B. — There was some evidence that the pri- soner might have been the thief, and the prosecutor charged him with being the thief ; but a search was 502 CROWN CASES RESERVED. 1855. made and the watch was not found, and it was proved Smith's that Hollands absconded before the trial ; from that Case. and the other facts of the case, the jury might well find that Hollands was the thief and the prisoner the receiver. Crowder J I also think that both the direction and the conviction were right. There was sufficient evidence that Hollands was the thief. The question is then put to the jury, was the watch under the control of the prisoner ? And they say it was. That finding is sufficient to support their verdict, and the conviction was right. Conviction affirmed. 1855. REGINA 0. THOMAS PRATT. The defen- This was a special case stated for the opinion of the viTtelunde"; Court of Quecn's Bench, under sect. 11 of the 12 & 13 thei&2W%. Yi^f.^ c. 45. The defendant had appealed against a of tvespasa- ' conviction under 1 & 2 Wm. 4, c. 32, s. 30, by which infhTpoTses- an offence is committed (a), "if any person what- sion and """P^'°." (a) This case is reported, because three or more together shall by Bursiiit of ^^ words of this section are some- lught unlawfully enter or be in any came. Held, what similar to those of the 9th land, whether open or enclosed, for that the entry section of the Night Poaching Act, the purpose of taking or destroying upon the land g Qeo. 4, c. 69, which constitutes game or rabbits, any of such per- under that jj ^ transportable misdemeanor sons being armed," &c. section must ,, .- . ,, „ ■ , be a personal '^ ^"y P^"^^""^ *° *^' ''"°>*'" °^ entry ; but it having been proved that the defendant was on the highway in pursuit of game and not as a traveller, and that G. B. was the owner of the land on both sides of the highway. Held, that as the soil and freehold of the highway was in G. B. as the owner of the adjoining land, there was a personal entry on the land by the defendant within the meaning of the statute. Qutery, (see note (a) ), whether this decision applies to sect. 9 of the Night Poaching Act, 9 Geo. 4, >;. 69 ? CROWN CASES RESERVED. 5( soever shall commit any trespass by entering or being 1855. in the day time upon any hind in search or pursuit of ""p^^rrt game." The Court of Quarter Sessions, on hearing Case. the appeal, deferred their decision in order that a case might be stated for the opinion of the Court of Queen's Bench. The offence set out in the conviction was, that the defendant did, on the 11th of October, 1854, un- lawfully commit a certain trespass, by being in the daytime on certain land in the possession and occupa- tion of one George Bowyer, then and there in search of game. On the appeal it was proved that the de- fendant was on the day in question on a public high- M'ay with a dog and carrying a gun ; that on the defendant waving his hand the dog entered into a plantation on one side of the highway in the posses- sion and occupation of the said George Bowyer ; that a pheasant rose and flew across the road, and the de- fendant, being still on the highway, fired at the pheasant, but did not kill it ; that the said George Boioyer was the owner of the land on both sides of the highway, and was the lord of the manor ; that the land was let to a tenant on one side, but the right of shooting was reserved ; but the said plan- tation was in the actual occupation of tlie said George Bowyer. This case was argued on the 21st of April 1855, before Lord Campbell C. J., Wigiitman J., Erle J. and Crompton J. Carrington and Lawrence, in support of the convic- tion, cited Pickering v. Rudd (a) ; Hill v. Walker {b) ; Dimmock v. Allenby (c) ;. Dovaston v. Payne {d); («i) 4 Campb, 219. 2 Marshall, 582. (i) 2 Peake's Addit. Ca. 234. (.rf) 2 H. B. 528. (c) Cited in Dmne v. Clayton, 504 CROWN CASES RESERVED. 1855. Goodtitle v. Alker (a) ; Rex v. Whiitaker (&) ; R. v. Pratt's Mellor (c). Case. Dowdeswell, on the other side, cited Rex v. Nickless (d) ; Fletcher v. Calthrop (e), and the note as to constructive entry, 1 Greaves Russ. on Crimes, 476. Lord Campbell C. J. — (After stating the facts and the questions for the consideration of the Court). I think the mere sending the dog into the plantation would not be sufficient to support the conviction, because, in my opinion, the offence contemplated by the Legislature was, that the offender should per- sonally enter, or be upon the land upon which the trespass is charged to have been committed ; but the justices were warranted in convicting the defendant of the offence charged, for the defendant was bodily upon the land which was the property of Mr. Bowyer, and he was there in pursuit of game. The soil and freehold of a highway remain in the owner of the adjoining land, although the public have an easement over it — a right to use it as a highway, but the grass which grows upon it is his, and, subject only to the easement, the property is exclusively his. Then the soil and freehold of the land in this case were in Mr. Bowyer, and for the purposes of this statute it must be considered as in his possession and occupation. It is shewfi by the evidence that the defendant was upon this highway, not as a traveller and for the purpose of exercising a right of passage along it, but solely for the purpose of searching for game ; and he was . therefore properly convicted. The other learned Judges concurred. Conviction affirmed. (a) I Bur. 133. (rf) 6 ft B. Rep. 880. (6) 1 Den. Cr. Ca. 310. (e) 8 C. & P. 757. (c) 2 Dowl. P. C. 173. CROWN CASES RESERVED. 505 REGINA V. JAMES HOLDER ALLEYNE, ^S^^- ALEXANDER M'GEACHY ALLEYNE AND THOMAS DOPPING BUCHANAN D'ARCY. ALLEYNE AND OTHERS v. REGINA (in error) (a). In the first mentioned case in blaster Term 1854, Where a writ 01 error is Edwin James obtained a rule calling on the defen- suedoutupon dants to shew cause why (inter alia) a writ of error, o/thfcourt which had been brought upon a bill of exceptions of aueen's I'll 1 'li-iji? Bench in a which had been tendered at the trial of the deten- criminal pro- dants for conspiracy, should not be quashed, on the thrpurpose' ground of the same having; been sued out with a ofenabiing ° <. • J r ^^^ parties to view to a compromise of this prosecution, and tor effect a com- the purpose of enabling such compromise to be ^u°"pros°era- effected. *j.°°' *'j.^' , (Jourt has the power under The case was argued on the 3rd, 9th and 10th ')^J_l^^^l of November 1854: Shee, Serit., S. Temple and s. 39, to set' Huddleston shewing cause, and Edwin James and writ of error, Hawkins supporting the rule. The facts are suffi- ""^^^^^ ciently shewn by the judgment. that power; Lord Campbell C. J. — This is a rule calling upon writ of error us to order that a writ of error may be quashed, on J^'^^''^?^^ ^y the ground that the same was sued out with the view a Court of » • J /> u f competent of compromising a prosecution, and lor the purpose 01 jurisdiction, enabling the persons suing it out to effectuate that *^^"£q"^'^;^ compromise : and I am of opinion that the rule must Chamber will set £IS1Q6 3. be made absolute. We have clearly jurisdiction to grant judgment, signed there- on by order (a) I am indebted for this report was delayed, as it was expected that ^f ^ Judge, to Mr. W. S. Cross. The report of the case would be taken to the Court for want of a the judgment in the Queen's Bench of Exchequer Chamber.— H. R. D. joinder in 506 CROWN CASES RESERVED. 1854. such a rule. At common law the power of dealing Allbyne's with a writ of error on a judgment which had been Case. pronounced was in Chancery, in the Petty Bag Office, on the common law side of that Court ; but by the 12 & 13 Vict. c. 109, s. 39, that jurisdiction was transferred to the superior Courts of common law in Westminster If all; and in the case of Garrod v. Tuck {a), it was decided by the Court of Exchequer Chamber that tliat Court had no such power ; and that the application should be made to the Court in which the original proceeding was had, and from which the judgment alleged to be erroneous came. Well, then, we have the jurisdiction to say what ought to be done ; and the question is, what we shall in this case direct, if we think it true, as alleged in the affidavits in support of this application, that the writ of error was sued out with a view to a compromise, and for the purpose of effecting that compromise. , The issuing out of a writ of error under such circumstances is a gross abuse of the process of the Court ; for the writ is not then sued out in furtherance of justice, but in order that justice may be defeated. It seems to me most clearly made out, that that was the object in this case. The three defendants, the two Alleynes and D'Arcy, were indicted for a conspiracy to defraud Kennedy of money by false pretences. The trial came on before me, and after a most careful investigation they were convicted ; and I must say that they were convicted to my entire satisfaction ; and I believe I may add, to the satisfaction of all who heard the trial. The bet as to which the fraudulent pretences were employed, had been made by James Holder Alleyne, and he mis- represented the name and the then condition of the horse on the performances of which the bet was to (ff) 8 Com. Bench, 231, 258. CROWN CASES RESERVED. 507 depend: it was clearly proved that after the bet was 1854, made, and before the day when the match was to be -, r tronea, tne mare became unwell and was unable to go. Case. That fact was perfectly well known to the defendants, and the contrivance was then resorted to of alarming Kennedy and making him believe that the mare was sure to be successful, and that he {Kennedy) had not the most distant chance of winning any one of the numerous bets in which he had engaged ; and it was, therefore, suggested to him that he had better pay the whole. He agreed to do so ; but it was with the understanding that he was to receive some compensa- tion for his losses, for he was to make the payment with the imaginary benefit that was to arise to him from becoming a shareholder in the mare, and in her future winnings. The jury were perfectly satisfied as to the guilt of the three defendants, and found them all guilty. In the discharge of my duty, making observations at the moment from which I do not now in the least degree shrink, I sentenced Holder Alleyne » to two years' imprisonment, D'Arcy to one years' imprisonment, and M'Geachy Alleyne to six months' imprisonment, making a difference in their punishment according to what I believed to be the difi'erence in the degreeof their guilt. Icalledon them to appear in Court and receive the sentence of the law. They fled, that justice might be defeated, t issued a warrant for their apprehension, but they were not apprehended. Soon after that they effected a compromise with the prosecutor who received a sum of 5300/. It has now been proved to my entire satisfaction that part of the terms on which that money was paid was, that the judgment of this Court should be defeated by the means of allowing the writ of error to proceed to judgment without opposition. The defendants had it in their power if they thought the facts justified it, and that 508 CROWN CASES RESERVED. 1864. the verdict could not be supported, to move for a new Allbyne's' t»"'al- The pretence that they believed they could not Case. do so except when all the defendants were 'present in Court, was merely illusory. Any one of the defendants who thought fit to appear, might have moved for a new trial, but no such motion could be made in the absence of all the defendants, and when they had fled from justice. No application for a new trial was made, so that, for anything that appeared to the contrary, they ought to have suffered the punishment which the law had awarded. But they had escaped from the country in order to avoid the punishment, and they took further means to defeat the law. By what means were they able to do so? By suing out a fraudulent writ of error, and fraudulently getting judgment on it in their favour. It is clearly established by the affidavits, and by facts which do not admit of any doubt, that the consideration for the money which was paid on the I6th of January was, that Kennedy, the prosecutor and Newton the attorney, should no further prosecute the indictnaent, but that the prosecution should become abortive. The facts speak for themselves, for it is clear that the sum would never have been paid by the AUeynes to Kennedy, unless on the well understood arrangement that there should be an end of the prosecution. There had been at an early time attempts made to compromise the indictment. For some reasons which influenced the parties at that time, no such arrange- ment was made. That which took place afterwards clearly embraced the indictment on which these de- fendants had been convicted. It is unnecessary for me to say anything of the second indictment, but nothing in the observations made upon that indict- ment at all induces me to doubt that part of the consideration for the compromise, and the payment CROWN CASES RESERVED. 509 of the sum of money was, that the first indictment 1854. should not be further pursued against these defendants, allbyne's When that second indictment was brought before us, •^'"^®' it seemed to me to remove all possibility of doubt ; for in that second indictment which was to be supported by the oath of McGeachy Alleyne, there is a positive charge that the money was received for compromising the indictment. The allegation now made in support of this application is therefore itself supported by the Alleynes. I do not believe that with respect to the application for a new trial, the distinguished member of the profession (now no more) (a), under whose advice the Alleynes then acted, ever gave the advice which it is now asserted he gave. No valid objection is suggested against such an application, A bill of ex- ceptions could not lie for the statute of Westminster 2 is confined to civil causes. But a rule for a new trial might have been applied for. The whole object of these defendants then was to obtain a compromise. They paid the money for that purpose. They paid it on the 16th oi January, and it was not until the 28th of February that they brought a writ of error. What was the object of that writ of error? It was to defeat the course of justice. We are bound when, from any cause, such attempts to defeat the course of justice are brought before us, to do our best to prevent their success. The administration of the law is placed in our hands under the charge to do so. Justice is no doubt frequently perverted by corrupt compromises between prosecutors and defendants, but when a case of that kind is brought to our knowledge, we shall take care to prevent the compromise having any effect. Here we have abundant means of seeing how that abuse was attempted, and we are bound immediately (a) Alluding to the late Mr. Hutnfrey Q. C. 510 CROWN CASES RESERVED. 1854. to take steps that justice may no longer be delayed. Alleyne's '^^"^ """^^ must be made absolute. Case. Coleridge J. — I am of the same opinion to the same extent, and on the same grounds as my Lord ; and under ordinary circumstances I should not feel it necessary to add one word to the remarks he has made. It is impossible for a Court of justice to look closely into the motives of parties, and when such proceedings as these arise they must be examined with- out reference to motives: good and bad men indiffe- rently bring cases before us — the good man may be ■wrong, the bad man may be in the right in the parti- cular case — and the judgment of the Court must be given, not with reference to the individual, but with reference to the case ; but there is one principle espe- cially familiar to us all, that every Court of justice is bound to take care that its process shall not be abused for purposes of injustice, nor its authority deliberately perverted to bad and wicked ends. In this case I have no doubt that we have the jurisdiction to deal with the writ of error — it is part of our own proceed- ings, and we may deal with it as if it issued from this Court. It is now stated that this writ of error was brought for the purpose of a corrupt compromise, and if that statement is well founded, then the writ of error ought not to be allowed to stand, but the judg- ment against which it was directed ought to be restored. Is that allegation proved in this case? I think that it is as clearly as anything can be proved, which has not actually passed under the eyes of him who gives an opinion upon it. There has been from the first a tendency to listen to schemes of compromise, but while the result of the trial was in doubt, the defendants would not accede to the offers which were suggested. I found my opinion on the notes of the trial, because I did not hear it in person, and on those CROWN CASES RESERVED. 511 notes I say that the trial was followed most justly to 185!. a conviction. Of course after that conviction the Alleyne's claims of the prosecutor mounted up, and the motives *^^'^* on the other side to accede to a compromise were equally increased. One side desired to retain the money, the other to get it hack again. A bill in Chancery was filed, and the defendants fled the country, and so gained a little time for consideration. A consultation of counsel was held, but the counsel little knew on what slight matter they were con- sulting, for an agreement had been made between the parties, and money was paid and received — of course ostensibly for the arrangement of the civil proceeding ; but when the course of moving for a new trial was abandoned, it must be obvious to all that the new trial had become of little importance, for the whole proceeding had been settled by private arrangement. It so happened that in the course of the trial a bill of exceptions had been tendered. It was supposed that on argument a venire de novo might be awarded, but it was deemed desirable that the matter should pass sub silentio. The compromise was therefore made, the writ of error was issued, no argument took place, and the original judgment was quashed. This was the real sense and substance of the whole transaction. Is it to be believed that a sum of 5300Z. would have been paid to stop a civil proceeding, such as was instituted here, if there had not been the least appre- hension that the criminal proceeding might be carried to its full end, and that a hond fide new trial must have taken place, or the defendants must have suffered the punishment awarded against them ? To my mind the conversation reported by the short-hand writer is the most transparent part of the fraud, and confirms me in the opinion as to the criminal nature of the compromise with which we have now to deal. It 512 CROWN CASES RESERVED. 1854. would be highly improper if, under such circum- Alleyne's stances, the Court did not vindicate the integrity of Case. its own proceedings, and it can only do so in this instance by making the rule absolute. WiGHTMAN J. and Erle J. concurred. Rule absolute for quashing the writ. 1855. After the above decision of the Court of Queen's "~ Bench, namely on the 6th of February 1855, a second writ of error was sued out at the instance of J. H. Alleyne and A. M. ALleyne (the defendant D'Arcy being dead), and on the 26th of April 1855 an assign- ment of errors upon this second writ of error was delivered to the attorney for the prosecution, and a demand made of joinder in error, or a plea to the assignment. It was assigned as the chief ground of error, that the original judgment of the Court of Queen's Bench had been reversed on error by the Court of Exchequer Chamber before the decision of the Court of Queen's Bench in the last case. The prosecutor obtained six weeks time to join in error, and on the 26th of May 1855, Welsby obtained in the Court of Exchequer Chamber a rule calling on the plaintiffs in error to shew cause why the roll and record, and all other proceedings, should not be amended by striking out the entry of the judgment of the Court of Exchequer Chamber, an order of Mr. Baron Martin, and a rule of Court founded thereon authorizing such entry, on the ground that the original writ of error upon which such judgment was founded had been set aside by the Court of Queen's Bench. CROWN CASES RESERVED. 513 It appeared from the affidavit upon which the 18.55. application was made, that the first writ of error was ~r 7 ■ Allbyne s sued out on the 28th of February 1852, and that an Case, order was made by Mr. Baron Martin on the 29th of June 1852, ordering judgment to be signed upon this writ of error for want of a joinder in error by the defendants in error, and on the 28th of August 1852, a rule of this Court was drawn up on reading the said order authorizing such judgment to be signed, and an entry of these proceedings was accordingly made on the roll, and the transcript filed in this Court. On the 16th of June 1854, the rule came on for argument before Parke B,, Alderson B., Maule J., Cresswell J., Platt B., Williams J., Martin B. and Crowder J. Bramwell and Willes shewed cause, and contended that the record contained a true narrative of the facts as they occurred, and that they ought to be allowed to remain on the record. They cited King v. Sim- monds (a). They also contended that the application was wrong in point of form, in not seeking to set aside the writ of error ; for this they cited Brooks v. Roberts (6). Welsby and Hawkins, contrk. The Court is asked to strike out that which alone it has power to deal with, namely its own judgment, which was a nullity and not an irregularity, inasmuch as the writ of error upon which that judgment was founded had been set aside by the Court of Queen's Bench. They cited Garrard v. Tuck (c). Parke B. — We are all of opinion that this rule must be made absolute. It appears that the writ of error, which is a commission to us to examine the (a) 1 House of Lords Ca. 754. (6) 1 Com, Bench, 636. (c) 8 Com. Bench, 254. VOL. 1. Q Q 514 CROWN CASES RESERVED. 1855. record, was improperly issued, and that commission, Alleyi^'s which, under the statute, gives to us or to a single Case. Judge a jurisdiction which was formerly exercised by the Court of Chancery, is void. It has been con- tended that this motion is* irregular because it seeks to set aside a judgment without setting aside the writ of error on which the judgment was founded ; but the cases cited in support of that proposition apply only to proceedings which are irregular, and not to such as are entirely void, and no case has been cited to shew that, where there is an execution on an irregular judgment, such execution cannot be set aside without also setting aside the irregular judgment upon which it is founded. Although the record does contain a true narrative of the facts, it must not be crammed with matters which ought never to have been there. Rule absolute. CROWN CASES RESERVED. 515 REGINA V. JOHN EAGLETON. 1854-55. This was a case reserved for the opinion of the The defend- Court of Criminal Appeal by the Recorder of Great tracted'in Yarmouth. The case, as originallv stated, toaether ^"''"g^ith . ° - J "65 • --' theguardians With the indictment and the documents referred to in of a parish to supply and deliver for a certain term to the out-door poor, at such times as the guardians should direct, loaves of bread of three and a half pounds weight each. The guardians were, during the said term, to pay the defendant after certain rates and prices for the bread so supplied, and of which a bill of particulars should have been sent. The contract contained a proviso, that in case the defendant broke the terms of his contract in any of the ways therein named, one of which was by a deficiency in the weight stated and charged for in the said bill of particulars, the guardians might employ other persons to supply the bread, and charge the defendant with the costs of such supply above the price contracted for, and might retain any moneys due to the defendant under the con- tract at the time of such breach towards such costs, or the damages which the board might sustain, and might also put in suit against the defendant a bond which he then executed, and which was conditioned for the due performance of his contract. The indictment contained ten counts, the first seven of which were in substance the same, and charged the defendant with a common law misdemeanour, in supplying and delivering, as such contractor, loaves of bread to difierent poor persons, which loaves were deficient in weight, intending to injure and defraud such poor persons and to deprive them of proper and sufficient food and sustenance, and to endanger their healths and constitutions, and to cheat and defraud the said guardians. The three last counts charged the defendant with attempting to obtain money from the guardians by falsely pretending to the relieving officer that he had delivered loaves of the proper weight. It was proved in evidence, that on a poor person applying for relief the relieving officer gave the applicant a ticket, the presentation of which to the defendant entitled him to receive a loaf ; that the defendant received these tickets and gave to the poor persons presenting them loaves of bread which the jury found were deficient in weight, and were so with the knowledge of the defendant. By the course of dealing the defendant would return the tickets in the following week, with a statement in writing of the number of loaves he had supplied, and the relieving officer would credit the defendant in account with the guardians with the amount, and the money would then be paid to him at the time stipulated in the contract. The tickets were so returned by the defendant, and he was credited in account accordingly; but the fraud was discovered before the stipulated time for payment of the money had arrived. The jury found that the defendant intended to defraud the out-door poor, and that by returning the tickets to the relieving officer he intended to represent that he had deli- vered the loaves mentioned in them of the weights stated. Held, 1. That the first seven counts did not disclose an indictable offence, as the delivery of loaves of less weight than that contracted for was a mere private fraud, no false weights or tokens having been used. 2. That the defendant was properly con- victed on the last three counts of attempting to obtain money by false pretences, as the fraudulent representation made was of an antecedent fact; and that although the defendant had only obtained credit in account, and could not have been convicted of obtaining money by false pretences, he was nevertheless properly convicted of the attempt, his obtaining the credit in account being the last act depending on himself towards obtaining the money. ■ • . v ■ Qaffire,' whether a sale of goods with a false representation of the weight or quanty is an indictable offence ? VOL, I. R I* 516 CROWN CASES RESERVED. 1854-55. the case, are fully set out, ante, p. 376. The Court, ,;^ r at a sitting holden on the 28th day of April, 1854, liAGLETON S ° i 1 l 1 J 1 Case. having considered that the case should be amended so as to disclose the evidence on which the jury found the verdict of guilty on the last three counts of the indictment, the learned Recorder subsequently stated the same to be as set out, ante, p. 390. The case, as amended, came on to be argued on 3rd June, 1854, and the arguments on that occasion will be found aide, p. 393. Before the conclusion of the arguments on behalf of the defendant it was intimated by the Court that the case was of such importance to the adminis- tration of justice that the Court had come to the conclusion that it had better be adjourned till the Michaelmas Term following, which was accordingly done. It was stated in the course of the argument on behalf of the defendant on 3rd June, 1854, that in the first edition of Cfiitt. Crim. Law there was a precedent (a) of an indictment against a baker at Norwich charging an offence simihir to that disclosed by the first seven counts of the present indictment ; but that in the second edition of Mr. Chitfy's work that precedent was omitted, it being stated that the facts charged had been held not to constitute an indictable oflFence. It was intimated by the Court that it was desirable that a report of any case in which it was so held should be found. Search having accordingly been made an entry was found in the Norfolk Circuit Gaol Delivery Minute Book as to an indictment at the city of Noraich, Summer Assizes 25th Juli/, 55 Geo. 3, against one (a) The precedent referred to will the oflFence was indictable on the he found in 2 Chitt. Crim. Law, ground stated 2 East P. C. 821. 1st edit. p. 559, and in a note (,g) that all frauds aflfecting the public it is said, that the indictment was at large are indictable, though settled on the decided opinion of arising out of a particular transac- a very experienced barrister, that tion and contract. CROWN CASES RESERVED. 517 Benjamin Hurling, on which indictment a verdict of 1854-55. not guilty had been returned. The following is a copy eaglbton's of the abstract or minute of the indictment as entered Case. in the said minute book, and was certified to be a true extract therefrom by the deputy clerk of assize of the Norfolk circuit. "That defendant on the 29th September, 1812, contracted with the governor, &c., of the poor of Norwich to make and deliver until 29th September following, bread of seconds flour to be delivered the day after the same was baked, each to weigh lib. 15 oz., at a certain price, but contriving to cheat the poor and deprive them of a portion of their daily allowance, on 15th July, 1813, delivered to Stannard the master and superintendent of the poor, 120 loaves not weighing, 1 lb. 15 oz., but 1 lb. 11 oz. " 2nd. The like without specifying the exact weight, but that the loaves were less weight than contracted for. " 3rd. Like the first, without stating with whom the contract was made, but generally that the defendant contracted to make and deliver the bread to weigh lib. 15 oz., and that each loaf weighed only lib, lloz. "4th. That defendant, for a reasonable reward, contracted with the governor, &c., to deliver loaves weighing each I lb. 15 oz., and that he delivered 120 loaves of a much less weight knowing them to be deficient." Search was made by the clerk of assize for tiie JSorfolk circuit for the indictment itself, but it could not be found ; nor does it appear from the above extract under what circumstances the verdict of not guilty was returned ; but the learned Recorder, by whom this case was reserved, furnished the following report of the case of Bex v. Harling from the Norwich Mercury of July 29th, 1815, which newspaper he found in the British Museum. R R 2 ,018 CROWN CASES RESERVED. 1851-55. " The King X. Harling. This was an indictment Eagleton's instituted by the court of guardians in this city Case. against the defendant for supplying the v?orkhouse with bread sliort of weight, with intent thereby to defraud the poor in the house of a portion of their allowance. The contract into which the defendant had entered with the corporation (in consequence, of a public advertisement appearing in the Norwich Mer- cury) to provide bread for the workhouse, each loaf to weigh lib. and 15 oz., was proved. The mayor, who was one of the committee, was examined, and stated that he weighed one of the loaves sent by the defend- ant, on the 16tb July, 1813, and it weighed only lib, and lloz. ; he then weighed a score of loaves, and found a deficiency of 4 lbs. in weight; after that he weighed six score, and there was a deficiency of 25^1bs. ; but an objection was taken on the part of the defendant that the offence with which he was charged was not an indictable offence as, in order to constitute such an offence, it was necessary that the public should be injured by it ; and further, that it must be such as ordinary prudence could not provide against. It was also urged that sending a less quan- tity than was contracted for, is merely a breach of a civil contract and not an indictable offence. It was answered on the other side that it was an indictable offence, inasmuch as all the poor in the workhouse were affected by it, and inasmuch as the contract was not made with a private individual (a breach of which would have made only a private injury), but with a body of persons incorporated which made it public. The Court was of opinion that according to strict law, it was not an indictable offence, but only a breach of a civil contract, and therefore that the indictment could not be supported. The jury were directed to acquit the defendant, who was very severely repri- manded by the Judge," CROWN CASES RESERVED. 519 This case appeared to have been tried before 1854-55. Thompson C. B., or Sir Vicary Gibhs C. J., but it eagleton's was uncertain which. *^**^' This case was again argued on the 2nd December, 1854, before Jervis C. J., Pollock C. B., Parke B , Madle J., WightmanJ., Erle J., Platt B., Martin B., and Crompton J. ^tt/wer appeared for the Crown, and Clerk, J. Bur- chell and'Poland for the defendant. Clerk (J. Burchell and Poland with him) for the defendant. The first seven counts are for a cheat at common law, and the three last counts for attempt- ing to obtain money by false pretences. Parke B. — I suppose the seven first counts were disposed of at the first hearing. Bnlwer. Some of the Judges thought tliose counts good. Clerk. Probably those counts would never have appeared, had it not been that in the first edition of Chitti/'s Criminal Pleading, vol. 2, p. 559, a form of indictment is given on which those counts are founded, to which form is appended a note stating that the indictment was settled on the decided opinion of a very experienced barrister that the offence was indictable on the ground stated, 2 East P. C. 821, that all frauds aff'ecting the public at large are indict- able, though arising out of a particular transaction and contract. But in the second edition of the same work we find that this form is omitted. Since this case was last argued, inquiries have been made as to the authority on which this form of in- dictment was so omitted. The learned Counsel then referred to the extracts from the Norfolk Circuit Gaol Delivery Minute Book and from the Norwich Mercury newspaper, set out 520 CROWN CASES RESERVED. 1854-55. ante, pp. 517, 518, which he contended shewed that ^;^^;;;;;;7^ such an indictment was bad at common law, and Case. disclosed only a fraud of a private nature. One of the leading cases on this subject, and, in- deed, the case which is said to have clearly established the true boundary between those frauds that are and those that are not indictable at common law (a), is the case of Eex v. Wheatley (6). There the defendant, a brewer, was charged by an indictment at common law for that he, intending to deceive and defraud one Richard Webb of his money, falsely, fraudulently, and deceitfully sold and delivered to him sixteen gal- lons of amber for and as eighteen gallons, knowing there were only sixteen gallons. This was holden to be a civil injury only, and not an indictable offence, as it was a case of mere private imposition upon the person with whom the defendant was dealing, and he had not employed any false weight or measures, nor used any false tokens, nor conspired with any one else to cheat the prosecutor. In giving judgment, Lord Mansfield refers to a case of Rex v. Wilders{c). The prisoner, in that case, was a brewer, and was indicted for a cheat in sending in to Mr. Hicks, an alehouse-keeper, so many vessels of ale marked as containing such a measure, and writing, a letter to Mr. Hicks assuring him that they did contain that measure, when in fact they did not contain such (a) 2 Greaves Rues, on Crimes could not have been imposed upon and Misd. 284. without his own carelessness ; and (6) 2 Burr. 1125; 1 W. Bl. 2^3. instanced the case of selling an (c) See 2 Burr. 1128. Lord unsound horse a£Srming him to be Jfans^e2(f, in referring to this case, sound; and they held that such states that he was informed of it private unfair dealings which did by Denison J., and that it was M. not affect the public were not in- 6 G. 1, B. R., and the learned dictable crimes unless accompanied reporter adds the following note: by false tokens or conspiracy, or " 1 have alike account of this case, selling by false weights or mea- The Court said that the prosecutor sures." CROWN CASES RESERVED. 521 measure, but much less. This indictment was quashed 1854-55. on argument although, as Lord Mansfield remarked, eag LETON S it disclosed a stronger case than Rex v. Wheatley. *-'^'*^- In 2 £Jast P. C, a. number of cases are collected, which all go to show that this is no offence at common law: Rex v. Dunnage{a), Rex v. Hai/nes {b), Rex v. La7-a (c), Rex v. Pinkney (d), Rex v. Bower (e), Rex V. Cornbrune (g), Rex v. Osborn (h). Clerk was then desired by the Court to direct his arguments to the last three counts ; but as the whole of Ins arguments on the part of the defendant, as well as those of Bulwer on behalf of the Crown, as to those counts, were recapitulated on the subsequent hearing of the case, they are here omitted. The argument was resumed on the 3rd day of February, 1855, before Jervis C. J., Parke B., MaULE J., WiGHTMAN J., CrESSWELL J., ErLE J., Platt B., Williams J., and Crompton J. Bulwer proceeded with his argument on behalf of the Crown as to the last three counts, and recapitu- lated his former arguments as to those counts. The main question is, whether a man representing falsely, with intent to defraud, that he has completed a contract into which he has previously entered, is guilty of an indictable false pretence. There are three classes of cases in which money may be obtained by false pretences. First, the ordinary case where there is no contract; secondly, where the false pretence induces a contract, in pursuance of which the money is paid; and, thirdly, where the contract is bona fide in the first instance, there is then a false pretence that it has been performed. (fl) 2 Burr. 1130. (6) 4 M. & S. 214. (c) 2 East P. 0.819; 6 T.R. 565. {.d) 2 East P. C. 819. (e) Cowp. 323. (!7) ^ Wils. 301. (A) 3 Burr. 1697- 522 CROWN CASES RESERVED. 1854-55. All three classes are, I contend, within the statute Eagleton-s 7 & 8 Geo. 4, c. 29, s. 53, where the pretence is made Case. with intent to defraud and money is ohtained by it; and when it has been proved that a false pretence of an existing fact has been made; it is a question for the jury whether such pretence was made with intent to defraud, and whether the money was obtained by means of the pretence. With regard to the second class of cases they are within the statute, and the fact of the pretence inducing a contract makes no difference. This is established by the decisions in Reg. v. Kenrickia) and Reg. v. Abbott (b), and those decisions are in accordance with the general principle, that if the false pretence creates the credit it is within tiie statute. As to the third class of cases, it is included in the generality of the term " false pretences," in the statute. In Young and others v. The King in error (c). Lord Kenyan C. J. says, that when the statute was passed it was considered to extend to every case where the party had obtained money by falsely representing himself to be in a situation in which he was not, or any occurrence that had not happened, to which persons of ordinary caution might give credit. In Wiichelfs case(d) the prisoner obtained money by the false pretence,that certain workmen, whom itwas his duty to pay, had earned more money than they really had, and that was held to be obtaining money by a false pretence within the statute ; and this deci- sion was on the principle, that if the false pretence creates the credit, it is within the statute. In Rex v. Airei/i^e), where a common carrier, having received certain goods for the purpose of carrying and deliver- (a) 5 Queen's Bench Rep. 49. C6) 2 Den. C. C. 273. (e) 3 Term Rep. 98. (d) 2 East P. C. 830. (e; 2 East's Rep. 30; 2 East P. C. 831. CROWN CASES RESERVED. 523 ing for hire, obtained money for the carriage of such 1854-55. goods by falsely pretending to have delivered them, eagleton's and to have lost the bailee's receipt, he was convicted Case. of obtaining such money by false pretences, and on error after conviction the judgment was affirmed. The preamble of the statute 30 Geo. 2, c. 24, which recites that frauds had been committed by evil disposed persons " to the manifest prejudice of trade and credit," is against the limited construction which the defendant seeks to put upon the statute; and there are many cases which show that an indictable offence is not the less indictable because it is a breach of contract. In Trecves case{a), in 1796, the prisoner was convicted on an indictment charging a common law fraud by supplying prisoners of war with unwholesome food, not fit to be eaten by man, and the Judges held the conviction right. There the objection in arrest of judgment was, that it did not appear that what was done was in breach of any contract with the public, or of any moral and civil duty, and one does not see any reason why the act done in that case would have been less an offence if it had also been a breach of contract. In Eex V. Friend (b) it was held to be an indictable offence in the nature of a misdemeanor to refuse and neglect to provide sufficient food for an infant of tender years, unable to provide for and take care of itself, so as thereby to injure its health ; such child being an apprentice whom the party is obliged by contract to provide for. In that case Chambre J. thought it not an indictable offence, but a matter founded wholly on contract, but the rest of the Court held otherwise. The decision of Littledale J. in Rex v. Codring- (a) 2 East P. C. 821. C6) Russ, & Ry. 20. 524 CROWN CASES RESERVED. 1854-55. ton (a) is relied on for the defendant. There selling Eagleton's ^" estate, with a covenant for title where the party Case. had previously sold his interest to another person, was held only to be a ground for a civil action. But the authority of that case is questioned, if in fact the decision is not overruled. The learned Counsel referred to iJea; v. Crossley (6) and Regina v. Bates (c). The authority of Rex v. Codringion is also questioned in Regina v. Kenrick (d) in a considered judgment of the Court of Queen's Bench, in which it is said that the decision of Littledale J. had been lately much doubted by the Judges with reference to a case reserved by the Recorder of London. The case 0^ Regina v. Kenrick was considered in this Court in Regina v. Abbott (e), and the decision was supported and acted upon by the twelve Judges then present. In Watts v. Porter (g) Erle J., speaking of a debtor charging as unincumbered that which is incumbered, says, " If he asserted expressly that it was unincumbered, and obtained the advance by that falsehood, he would be indictable for a false pretence." As to the case of Rex v. Reed (Ji), which will also be relied on on the other side. Lord Denman, speaking of that case in Hamilton v. The Queen, says (i), " I am sure that Rex v. Reed was not before the Judges. That decision is not overruled now, for it never took place." If the money in this case had been obtained by the false pretence, an offence would have been committed within the words of the statute, within the mischief pointed at by its preamble, and within the principles (a) 1 Car. & P. 661. (j) 2 Moo. & Rob. 17. (c) 3 Cox Crim. Ca. 201, (rf) 5 q. b. 49. Ke) 1 Den. C. C. 273. (g) 3 Ell. & Bl. 760. W 7 Car. & P. 848. (f) 9 Q. 3. 279. Eagleton's CROWN CASES RESERVED. 525 laid down in the decided cases to which I have 1854-55. referred. But these counts not being for obtaining money, but for attempting to obtain it, it is objected that all that the defendant did was to attempt to obtain credit in account. The attempt to commit a misdemeanor is a misde- meanor, whether the ofifence is created by statute or was an offence at common law ; Rex v. Roderick (a) ; Regina v. Chapman (b). And handing in the ticket in this case was a necessary step towards obtaining the money, and the moment a necessary step towards the completion of a misdemeanor is taken a misdemeanor is committed. Maule J. The doubt may arise — what is an attempt? Must it not be a proximate attempt ? Does a man, intending to murder, attempt to do so if he buys a dagger and poison, but uses neither the one nor the other ; if a man intends to commit an offence at a distant place, getting into a railway train, or putting on his shoes, or shaving himself in the morning, would not be an attempt to do so ? Bulwer. The returning the ticket was not an indifferent act which may mean one thing and may mean another, and although the cases put may not be suflBciently proximate, this is. The indictment charges that when the defendant made the false pretence he intended to obtain the money, and so say the jury; and he has not the less committed the offence of attempting to obtain because the step taken by him would not necessarily have ended in a money payment. This case is not one of cross accounts, and it is only (a) 7 Car. & P. 795. 1 Greaves Russ. on Crimes, 47. (6) 1 Den. C. C. 432 ; and see 526 CROWN CASES RESERVED. 1854-55. ill the event of the defendant committing a breach of ^^TZTZTTZ contract or a fraud that any cross accounts can arise. iZjAULiEjlON S " ill Case. The assumption of a cross account is not warranted by the case in which it is stated that the contractor on returning the ticiiets is credited in account, and " is paid at the time mentioned in the contract." For this objection, Rex v. Wavell (a), Meg. v. Crosby (b) and Reg. v. Garrett (c) are relied upon. In WavelVs case you could not say what specific sum was paid on account of the false check. You could not say what checks were paid on account of the good securities and what on account of the bad ; all that could be obtained by the defendant was credit in account ; and Lord Tenterden observes, in the course of the argument, " he only obtains credit in account ; somebody else receives the money." In Reg. v. Crosby the charge was for obtaining and not for attempting to obtain, and no money was in fact obtained, but only credit in account. The ground of the judgment in Reg. v. Garrett was, that no money could have been obtained by the defendant, even if his fraud had succeeded. In this case money might have been obtained : the intention of the defendant was to obtain it ; and, according to the course of deal- ing between the parties, if the fraud had not been discovered, he would have obtained it. As to the first seven counts, I do not dispute that Rex v. Wheatley {d), and Rex v. Osborn (e) are law ; but the ground on which I proceed is, that the facts charged show a fraud which is public in its nature and indictable at common law. The poor are not a limited but an unlimited class of persons, and may include the whole kingdom, as every poor person (ffl) 1 Moo. C. C. 224. (6) 1 Cox C. C. 10. (c) Ante, p. 232. (rf) 3 Durr. 1125. (e) 3 Burr. 1697. CROWN CASES RESERVED. 527 who becomes destitute in a parish becomes entitled to 1854-55. relief. The 4th count charges an intent to cheat and Eagleton's defraud the poor, and that intent is evidenced by the ^*^^' defendant's particular acts. Thus, if a man sells by false scales, it is evidence of an intent to cheat every person he may deal with ; Bex v. De Berrenger (a), King v. The Qu^en (6). It was a fraud upon the guardians, who represent the class of ratepayers, and a fraud upon the guardians as public officers acting under the Poor Law Commissioners. Platt B. — Defrauding a member of a class is not defrauding the class. Do you say the delivery of a loaf short of weight to one pauper was a fraud on the poor as a class ? Bulwer. I say it is evidence of it. The learned Counsel also referred to Rex v. Dixon (c). Rex v. Young {d). Rex v. Brisac and Scott (e), Rex v. Haynes (g), Reg. v. Wickham{h), Rex v. Woolley (i), Reg. V. Warren (k). Rex v. Booth (I), when it was intimated by the Court that the argument as to those counts ought not to be further proceeded with. Clerk (Mills and Poland with him) then replied as to the last three counts, and contended that they did not disclose any offence. There is nothing to shew any liability in the relieving officer to pay for the bread supplied, or to show how the defendant, by making the alleged assertion as to the weight of the loaves, could obtain money from the guardians. Secondly, there is no false representation by the defendant for the purpose of obtaining the money. Nothing is said by him as to the weight of the loaves; (a) 3 M. & S. 67. (6) 7 Q. B. 795. (c) 3 M. & S. 11. (d) 3 Term Rep. 9S. (e) 4 East Rep. 164. (.g) 4 M. & S. 214. (A) 10 A. & E. 34. (t) 1 Den. C. C. 559. (i) Russ. & Ry. 48, n. (0 Russ. & Ry. 47, n. 528 CROWN CASES RESERVED. 1854-55. but having delivered the loaves to the persons pre- Eagleton's senting tickets, he afterwards returns the tickets to the relieving officer, as he was bound by his contract to do. Maule J. — The returning the tickets by the de- fendant was a representation' by him that there were in rerum naturd so many ounces of bread, which was not so in fact. I believe we all think that what took place amounted to a representation by the defendant to the guardians that he had delivered a certain num- ber of loaves of a certain weight. Clerk. Thirdly, there was no false pretence within the provisions of the 53rd section of 7 & 8 Geo. 4, c. 29. That question was not one of fact for the jury, but was entirely a question of law for the Court. The statute was intended to apply to cases where the whole trans- action was false and fraudulent, and not to fraudulent breaches of contract ; the preamble shows that the object was to meet cases of fraud which, in their nature, would be analogous to stealing ; and I think I shall be able to show that the decided cases bear out that view of the statute, and that it was never intended to apply to fraudulent breaches of contract. In Young and others v. The King in error (a) the story told by the prisoner was entirely false, and he never intended to give any consideration. In Hamilton V. The Queen in error (6), the entire pretence was false. So in Hex v. Barnard (c) the whole story was false, and so it was in Beg. v. Bates (d), Rex v. Cross- ley (e), and in the older case of Bex v. Airey (g). In Witchell's case {h) the whole story as to the men (o) 3 Term Rep. 98. (b) g Q. B. Rep. 271. (c) 7 Car. & P. 781. (d) 3 Cox C. C. 201. Ce) 2 Moo. & R. 17. (y) 2 East Rep 30. (i) 2 East P. C. 830. CROWN CASES RESERVED. 529 who had not been employed, and as to the work which 1854-55. had not been done, was false. Eaglbton's Maule J. — There the defendant, being entitled to ^^'^®- something, delivered false accounts so as to make out that he was entitled to something more. That may raise a diflSculty upon you, as the Judges held that case clearly within the statute. Williams J — Suppose a builder having contracted to build a house, obtains the price by a false pretence that he has built it, he having in fact done nothing towards it, is that within the statute? Clerk. Yes. Williams J. — But suppose he had completed it all but the roof, would the pretence then be within the statute ? Clerk. Perhaps I might admit that ; but suppose the contract was that Memel timber should be used, and the contractor used Canadian timber, and then alleged that the house was completed according to the contract, or if he alleged that the work was done in a workmanlike manner when it was not, I should say it would not be within the statute. There is a case decided by a Judge of very great authority, Rex v. Pywell (a), in which Lord Ellenbo- rough held that an indictment would not lie for a deceitful representation and warranty of the soundness of a horse (li) ; it is true that the marginal note in Reg. V. Kenrick (c) and the observations of Lord Den- man in that case are at variance with that doctrine ; but the observations of Lord Denman were not neces- sary to the judgment which was upon the first three counts of the indictment, all of which charged a con- spiracy. (a) 1 Stark. Rep. 402. (*) But see R. v. Rowlands, 2 (C-) 5 Q. B. 49. Den. C. C. 364. 530 CROWN CASES RESERVED. 1854-55. Then, as to Watts v. Porter {a), the dictum of Erle Eagleton's J- i" that case was not necessary to the judgment. Case. As to Beg. v. Abbott {b) and the other cases decided with it, they were not argued by Counsel, and the Court proceeded on Beg. v. Kenrick; but the defend-, ants in those cases not only warranted the cheese they sold, but put a piece of good cheese into the bad cheese, using a fraudulent device, which might be indictable at common law ; but I doubt whether it is within the statute. There is also the case of Beg. v. JBaU(c), in which a man represented to a pawnbroker that eleven thim- bles, which he wanted to pawn, were silver; but the pawnbroker, on testing them, found they were not, and did not give him any money, and it was there held that the conduct of the prisoner amounted to an attempt to commit the statutable misdemeanor of obtaining money by false pretences. The authority of this case is however questionable, and there does not seem to he any reported case which had previously decided the question. The decision is at variance with a previous case of Beg. v. Tabram{d), and it does not appear who the Judges were with whom Mr. Serjeant Mirehouse consulted before delivering judgment. In Bex V. Beed{e), which is perhaps in its circura- ' stances the nearest to Beg. v. Ball, the prisoner had sold coals with a false representation of their value. That case was tried before Tindul C. J., and the pri- soner's Counsel having moved in arrest of judgment, the question was reserved for the consideration of the Judges ; and in the ensuing Term the case was con- sidered by the Judges, who held the conviction wrong. (a) 3 Ell. & Bl. 760. (6) 1 Den. C. C. 273. (c) Car. & Marsh. 249. (d) Cited Car. & Marsh. 251. (e) 7 Car. & P. 843. CROWN CASES RESERVED. 631 It is true that Lord Denman is stated, in Hamilton 1854-55. V. The Queen, to have said, that Reg. v. Reed never eagleton's was considered by the Judges ; but, besides the report Case. of it (a), it is again referred to in a note to Reg. v. Ball{b), as having been decided by the fifteen Judges. Macjle J. — Suppose the defendant had said, I have delivered one hundred loaves, when he had in fact only delivered fifty, that might have been a false pretence ; but a false representation as to the weight may be a diflferent thing. WiGHTMAN J — Suppose he had said, I have deli- vered one hundred loaves in pursuance of and in accordance with the contract. Clerk. If that would be a false pretence, it would equally be so if he said, I have delivered bread, made of the best household flour, when it was in fact made of flour of an inferior quality ; or if he had said that the bread was baked for so many hours, when in fact it had not been baked so long. Pollock C. B. — I doubt much whether any real dealing about buying and selling is within the statute. If the buying and selling are merely a pretence in order to cheat it is a diflferent thing. Clerk. If in a case like this the defendant would be indictable, every breach of contract followed by a representation that the contract had been performed would be equally so. The question really is, whether a contractor does by sending in an account charging for that as done according to contract which is not so done (for returning the tickets in this case was nothing more) make such a false pretence as renders him liable to indictment. But even if there was any false (a) 7 Car. & P. 848. (5) Carr. & Mar. -253, n. (a). VOL. I. S S 532 CROWN CASES RESERVED. 1854-55. pretence at all, all the prisoner attempted to obtain Eaoleton's ^y it was credit in account. The attempt to be Case. indictable must be such as must, if successful, obtain money ; and an indictment would be bad which merely alleged that the defendant by false pretences obtained or attempted to obtain credit in account. The case of Regina v. Wavell(a) is, I apprehend, decisive of this point. The money, according to the contract, was not to be paid till a certain time had elapsed, and there might then be a balance in favour of the guardians and against the defendant; and, in fact, in this case the time for payment had not arrived when the trial of the defendant took place. The case of JReg. V. Crosby (6), is also in point. There the pri- soner having entered into an agreement to act as captain of a certain vessel belonging to the prosecutor upon receiving two-thirds of the net profit of the vessel delivered in a bill for repairs to a larger amount than he had actually paid, and was allowed the amount in the settlement of accounts, and it was held by Maule J., that an indictment for obtaining" money by false pretences would not lie, since the prisoner did not by the false pretences obtain that amount of money, but only credit for the difference between the amount actually paid and the amount which he charged. So here no specific sum of money could have been obtained hy the alleged false pre- tence, and all that the defendant could possibly obtain was credit in account. The decision in Reg. V. Garrett {c), proceeds upon the same principle. It being then clear that an indictment for attempting to obtain credit in account would be bad ; although the indictment in this case charges an attempt to obtain money, the evidence only proves an attempt to obtain (a) 1 Moo. C. C. 224. (J) 1 Cox C. C. 10. (c) Ante, p. 232. CROWN CASES RESERVED. 533 credit in account, and the defendant was in fact con- 1854-55. victed before the time for payment of the money ^^]^ — T arrived. Case. Cur. adv. vult. The judgment of the Court was delivered on the 1855. 9th day of July, 1855, by Parke B — This case came originally before the Court of Criminal Appeal in the beginning of last year. It was reserved by Mr. Palmer, the Recorder of Great Yarmouth, upon a trial before him of an indict- ment containing ten counts. The first seven charged the defendant, a baker, with a fraud. He is alleged to have contracted with the guardians of the poor to deliver for a certain terra to the out-door poor of the parish of Great Yarmouth, in such manner as the guardians, or any other person authorized by them, should direct, quantities of bread made of the best household flour, in loaves, each loaf weighing three pounds and a half, to be paid for at seven pence a loaf; and is charged with having delivered loaves to different poor people of less weight, intending to deprive them of proper food and sustenance, and to endanger their healths and constitutions, and to defraud the guardians of the poor. The last three counts charge the defendant with a misdemeanor in attempting to obtain money from the guardians, by falsely pretending to the relieving ofiicer that he had delivered to certain poor persons a certain number of loaves, and that each of those loaves weighed three pounds and a half. The Court of Criminal Appeal, which sat on the 28th April, 1854, thought that the defendant could not be convicted on any of the first seven counts, as the delivering less than the quantity contracted for s s 2 534 CROWN CASES RESERVED. 1855. was a mere private fraud, no false weights or tokens , having; been used, and further that it did not appear EaGLETON S " ' I 1 1 1" 1 Case. to be indictable on the ground that the detendant delivered unwholesome provision, nor was that offence charged in the indictment. But the Judges then forming the Court were inclined to think that the three last counts were maintainable; but, as it was con- tended on the part of the defendant that the evidence first stated by the learned Recorder did not appear to make out the specific offence mentioned in those counts, the case was referred back to him to state the evidence more fully. This was done, and the amended report considered on the 3rd June, 1854, before Lord Camp- bellC. J. and Alderson B., Coleridge J., Martin B. and Crowder J. Upon the argument the learned Judges doubted of the propriety of the conviction on the last three counts, and desired the case to be argued before the fifteen Judges. Accordingly Jervis C. J., Pollock C. B., Parke B., Alderson B., Erle J., Platt B., Martin B. and Crompton J. assembled on December 2nd, 1854, and on February 3rd, 1855, Jervis C. J., Parke B., Maule J., Wightman J., Cresswell J., Platt B., Williams J., Crompton J. and Martin B. (a), on which last day the case was fully argued by Mr. Bulwer for the prosecution, and Mr. Clerk for the prisoner. It was contended by Mr. Clerk for the prisoner that the indictment for attempting to obtain money by false pretences could not be supported, because the offence of obtaining money under false pretences was (a) It will be seen on reference to ment, but the reporter, on referring the report, an^e, pp. 5 19, 52 1, that the to the Minute Book kept by Mr. statement there made of the Judges Straight, clerk of the Court, finds present on these occasions does that the entry there is the same as not agree with that in the judg- in the report. CROWN CASES RESERVED. 535 committed only when the money was obtained wholly 1S55. without consideration, and the offence was analogous"^" GLETON S to larceny, of which the prisoner might by stat. Case. 7 & 8 Geo. 4, c. 29, s. 53, be convicted, in case the offence should appear on the trial to be larceny. There are many cases, no doubt, as is mentioned in that section, in which the distinction is very subtle between the misdemeanor of obtaining money under false pretences and larceny, and it was very proper to make that provision in the statute ; but it does not follow that all the cases of obtaining money by false pretences are of that description. But it was strongly contended that the statute against obtaining money by false pretences applied to no cases where there was some bargain or consideration for giving the money, and so some cause for the giving, other than the false pretence : as where goods were sold under a false representation of the quality or value, and the pur- chaser had the commodity; otherwise the range of indictable offences would be greatl}'^ extended and breaches of contract made the ground of criminal proceedings. If this had been the case of a sale of bread to the prosecutors, with a false representation 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 consider the case of The Queen v. Kenrick (a), which was a case of the sale of horses by means of a false representation of their being the property of a private gentleman and quiet to ride and drive ; and also that of The Queen V. Abbott {h), decided upon the authority of The (a) 5 Q. B. Rep, 49. (6) 1 De"' Cr. Ca. 273. 536 CROWN CASES RESERVED. 1855. Queen v. Kenrick. In all these cases the prosecutor Eagleton's ^^^ "°* P^^*" ^'"-^ ^'® money merely on account of Case. the false pretences, but principally because he had a consideration for it in the property vested in him by the contract. But this is not the case of a sale of goods by a false pretence of their weight ; it is an attempt to obtain money by the false and fraudulent represen- tation of an antecedent fact, viz., that a greater number of pounds of bread had been delivered than had been actually delivered, and that representation made with a view of obtaining as many sums of 2d, as the number of loaves falsely pretended to have been furnished amount to. In this respect the present case exactly resembles that of The King v. WitcJiell {a), where the prisoner obtained money by the false preteufe that certain workmen, whom it was his duty to pay, had earned more than they really had, and there since are cases of similar convictions where the prisoner falsely stated the quantity of work which he had done, according to which he was to be paid ; we therefore think that the indictment would be maintainable if the money had been obtained. A second objection was, that the defendant was not to obtain the price of the number of pounds falsely stated to have been delivered in cash, but only to have credit in account. The statement of the learned Recorder is, that the defendant was to return the tickets given to the paupers by the relieving officer, and by them delivered to the defendant on receiving the loaves, and upon such return, with a written statement of the amount of loaves on the following week, would be credited in the relieving officer's book for the amount, and the (a) 2 East P. C. 830. CROWN CASES RESERVED. 537 money would be paid at the time stipulated in the 18;55. contract ; that is, on two calendar months from the eagleton's 25th March following. No further step would be Cass. necessary for the defendant to receive payment. The defendant did obtain credit in account from the relieving officer in effect for the amount of the number of pounds falsely represented to have been delivered. Further, the contract with the board of guardians stipulates, that if the defendant should fail in his performance of it the board of guardians might deduct the damages and costs sustained thereby from the sum payable to him for loaves supplied. On the part of the defendant his learned Counsel con- tended: first; that the attempt to obtain credit in account for a sum of money by delivering up the tickets as vouchers was not in itself an attempt to obtain money within the meaning of the statute, for that credit in account was not equivalent to money ; and no doubt the credit in the relieving officer's book was not equivalent to money, and the defendant could not have been convicted of the offence of actually obtaining money by false pretences. Secondly, he contended that the credit in account would not necessarily lead to an ultimate payment, for there might be deductions for breaches of contract, which would prevent any payments in cash by the guardians. We have had great doubt on this part of the case, but do not think that this objection should prevail. We think that the contingency of the whole sum due to him, being subject to deductions in a future event, does not the less make the obtaining credit an attempt to obtain money, if it would be so without that con- tingency ; but our doubt has been whether the obtain- ing that credit, though undoubtedly a necessary step towards obtaining the money, can be deemed an 538 CROWN CASES RESERVED. 1855 attempt to do so? The mere intention to commit a Eagleton's misdemeanor is not criminal. Some act is required, Case. and we do not think that all acts tov.ards committing a misdemeanor are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts imme- diately connected with it are ; and if, in this case, after the credit with the relieving oflBcer for the fraudulent overcharge, any further step on the part of the defendant had been necessary to obtain payment, as the making out a further account or producing the vouchers to the Board, we should have thought that the obtaining credit in account with the relieving officer would not have been sufficiently proximate to the obtaining the money. But, on the statement in this case, no other act on the part of the defendant would have been required. It was the last act, depend- ing on himself, towards the payment of the money, and therefore it ought to be considered as an attempt. The receipt of the monej' appears to have been pre- vented by a discovery of the fraud by the relieving officer; and it is very much the same case, as if, sup- posing rendering an account to the guardians at their office, with the vouchers annexed, were a preliminary necessary step to receiving the money, the defendant had gone to the office, rendered the account and vouchers, and then been discovered, and the money consequently refused. Conviction on the last three counts affirmed. CROWN CASES RESERVED, 539 REGINA V. WILLIAM ROBERTS. 1855. The following case was reserved for the opinion The prisoner, of the Court of Criminal Appeal, by Mr. Justice J^^j to co^" WiLLES. counterfeit William Roberts was tried before me at the Warwick oi Peru, Summer Assizes, 1855, upon an indictment contain- made and ing several counts to the effect following, that is to procured in ° ° this country say. dies neces- 1st Count. For unlawfully, knowingly, and with- pu7po°e*^/ out lawful authority or excuse, makinsr, and causinjy making such , ' ° n , counterfeit to be made, cut, and engraved, two dies, one of the coin, but obverse side, the other of the reverse side of a silver not^aione" half-dollar of Peru, not being coin current in this produce it; 1 • 1 . Ill I „ but the pri. realm, with intent to use them, and by means tnereor sonerin- feloniously and against the form of the statute to !frocure'the make counterfeit Peruvian half-dollars, and so at- rest of the . necessary tempting to make such counterfeit com. apparatus for 2nd Count. Same as first, except a verbal differ- '^^^^1 B ence in describing: the dies. intention of ° . • <<; 1 • J using the 3rd Count. Same as first, only saying obtained entire appa- and procured," instead of " made and caused to be ^f„";„V^j7„ made." making the 4th Count. Same as second, with like difference as c°"n" \he between first and third. _ thltthrpri- 5th Count. For attempting feloniously and against soner in- ' . • n ,. u tended to the form of the statute to coin, as in first count, by make only a few of the counterfeit coins in England by way of trying whether the apparatus would answer before sending it out to Peru to be there used in making counterfeit coin. Held, 1. That to make a few coins in England with the object stated would be to commit the offence of making counterfeit foreign coin within the statute 37 Geo. 3, c. 126, s. 2. 2. That the pro- curing the dies was an act in furtherance of the criminal purpose sufficiently proximate to the oflFence, and sufficiently shewing the criminal intent to support an indictment founded upon it for a misdemeanor. 540 CROWN CASES RESERVED. Case. 1855. making, &c., the dies with intent to use them in Roberts's coining such counterfeit coins, and also by procuring, &c., two galvanic batteries suitable and necessary for the purpose, and also by procuring, &c., acids and other chemicals suitable and necessary for the purpose. 6th Count. For attempting to coin silver half- dollars of Peru (without stating the means). So much of the indictment as appears necessary is copied in the accompanying paper marked A, which may be referred to as part of this case {a). (a) The following is the abbre- viated copy of the indictment marked A. above referred to : — Warwickshire. The jurors for our Lady the Queen present that William Roberts on the 5th day of July in the year of our Lord 1855 at the parish of Birmingham in the county of Warwick unlawfully knowingly and without any lawful authority or excuse did make and cause to be made cut and engraved two certain dies upon one of which there was then made and impressed the figure stamp and apparent re- semblance of one of the sides (to wit the obverse side) of a certain silver coin (not the proper coin of this realm nor permitted to be current within the same) called a half-dollar being a silver coin of a certain foreign country to wit Peru in South America in parts beyond the seas and in and upon the other of which said dies there was then made and impressed the figure stamp and apparent resemblance of the other side to wit the reverse side of the said silver coin of the said foreign state with intent in so doing to use the said dies and by means of the said dies so made as aforesaid feloniously and contrary to the form of the statute in such case made and provided to make coin and counterfeit divers pieces of coin not being the proper coin of this realm nor permitted to be current within the same but resem- bling and looking like and intend- ing to resemble and look like the said silver coin called a half-dollar of the said foreign country and so the jurors aforesaid upon their oath aforesaid do say that the said Wil- liam Roberts in manner and form aforesaid unlawfully did attempt feloniously to make coin and coun- terfeit certain coin not the proper coin of this realm nor permitted to be current within the same but resembling silver coin of the said foreign country to wit Peru afore- said against the peace &c. 2nd Count like 1st count, only substituting the words scored under for those scored under in the 1st count. Unlawfully &c. did make two certain dies one of which would make and impress the figure stamp and apparent resemblance of one side* &c. and the other of which &c. 3rd Count. Same as 1st count,- substituting the words " did obtain and procure" for the words " did • The words scored under in the original case arn here printed in italics. CROWN CASES RESERVED. 541 Case. It appeared at the trial that early in the present 1855. year (1855) the prisoner, without any authority or Roberts's license so to do, ordered and caused to be made by and procured of William Johnson, a die sinker at Bir- mingham, in Wartoickshire (who, though he executed the order, gave notice to the police immediately upon make and cause to be made," refer- ring to dies in the first count. 4th Count. Same as second, sub- stituting the words "did obtain and procure" for the words " did make and cause to be made," refer- ring to dies in second count. 5th Count. And the jurors &c. that the said William Roberts after- wards to wit on the day and year aforesaid unlawfully did attempt and endeavour feloniously and against the form of the statute in that case made and provided to make coin and counterfeit certain coin not being the proper coin of this realm nor permitted to be current within the same but resem- bling and looking like and intended to resemble and look like and pass as certain silver coin of a certain foreign state and country to wit Peru in South America in parts beyond the seas called half-dollars by then and there to wit on the day and year aforesaid and at the parish aforesaid unlawfully and without, any lawful authority or excuse making and causing to be made and obtaining and procuring and taking into the possession of him the said William Roberts two certain dies (upon one of which there was made and impressed and one of which would make and im- press and was intended to make and impress the figure stamp and apparent resemblance of one side of the said silver coin of the said foreign state and country and upon the other of which said dies there was made and impressed and the other of which said dies would make and impress and was intend- ed to make and impress the figure stamp and apparent resemblance of the other side of the said silver coin) he the said William Roberts then and there purposing and in- tending to use the said dies and therewith feloniously to make coin and counterfeit the said coin as aforesaid and also by then and there procuring and obtaining and taking into the possession of him the said William Roberts divers to wit two galvanic batteries and other galvanic apparatus and other ap- paratus suitable and necessary for the purpose of making coining and counterfeiting the said coin as afpresaid and also by then and there procuring and obtaining and taking into the possession of him the said William Roberts divers large quantities of acids and other chemical substances suitable and necessary for the purpose last aforesaid against the peace &c. 6th Count. Did attempt and en- deavour feloniously to make coin and counterfeit certain coin not the proper coin of this realm nor permitted to be current within the same but intended to resemble and look like the said silver coin to wit the coin called half-dollars of the said country to wit Peru afore- said against the peace &c. 542 CROWN CASES RESERVED. 1855. receiving it, and committed no offence against the Roberts's ^^^ in the transaction), the necessary dies for making Case. a counterfeit half-dollar, being a silver coin of a foreign country, namely the Republic of Peru, not being a coin of or permitted to be current in this realm. The dies, though suitable and necessary for making such counterfeit coin, could not alone produce it; a press, copper, blanks, galvanic battery, and a prepara- tion of silver being also necessary for that purpose. The prisoner had procured galvanic batteries, and had been in negotiation for the purchase of a press and copper blanks for the aforesaid purpose, but he was not proved to have actually procured either press, blanks, or preparation of silver. The prisoner caused to be made and procured the dies in Birmingham, and intended to procure the rest of the necessary apparatus there for the purpose and with the intention of using the entire apparatus when procured, including the dies, in making counterfeit Peruvian half-dollars, resembling the genuine coin, and the only disputed question of fact at the trial was whether he intended to coin in Peru only, or whether he intended also to coin in this country. There was evidence for the consideration of the jury on both sides of this question, and the learned Counsel for the prosecution and the prisoner respec- tively addressed the jury upon it. It was contended on behalf of the prisoner that there was no proof of the sixth count, charging an attempt to coin, the complete apparatus not appearing to have been procured ; but as it was arranged that the ques- tion whether any such offence against the law a's alleged had been committed should be reserved, I thought it better not to make a distinction between the counts at the trial. CROWN CASES RESERVED. 543 It was further contended on behalf of the prisoner 1855. that the jury ought, upon the evidence, to find that he Rqb ERTS S only intended to make the coin in Peru, and not in *-'^^®- England, in which case it was argued -that no offence against the law o^ England had been committed. It was further contended upon behalf of the prisoner that even if he did intend to coin in this country, that intention, though coupled with the act of causing the dies to be made and procuring them in pursuance of such an intention, fell short of an attempt to com- mit a felony, and therefore was not an offence. I told the jury inter alia that if the intention of the prisoner in procuring the dies was to procure the necessary apparatus complete, and therewith including the dies to make any number, however small, of coun- terfeit Peruvian half-dollars resembling that coin, even one, in England, the unauthorized causing to be made and procuring the dies in pursuance of and with a view to carry into effect that intention, would, in my opinion, be a misdemeanor. The jury stated it to be their opinion that the inten- tion of the prisoner was to cause to be made and procure the dies and other necessary apparatus in order therewith to coin counterfeit Peruvian half- dollars, and to fnake a few only of the counterfeit coin in England by way of trying whether the apparatus would answer before sending it out to Peru to be there used in makins the counterfeit coin. I directed the jury, if they thought that the dies were caused to be made and procured by the prisoner, as already mentioned, in pursuance of and in order to effect that intention, to find the prisoner guilty, which they accordingly did. I thereupon postponed the judgment until the next Assizes, admitting the prisoner to bail, and reserved for the opinion of the justices of either bench and , 544 CROWN CASES RESERVED. 1855. Barons of the Exchequer, according to the statute, the Roberts's following questions which arose at the trial, namely : Case. Whether the prisoner, by so causing to be made and procuring the dies as aforesaid, with the intention of using them, together with the rest of the necessary apparatos, when procured, in coining a few counterfeit Peruvian half-dollars in England, in order to try the apparatus before sending it to Peru, to be there used for making the counterfeit coin, was guilty of an offence against the law of this country, and whether any or either of the counts of the indictment alleged such offence ? See 37 Geo. 3, c. 126, s. 2, and Dugdale v. The Queen (1 Ellis & Blackburn, 435). Jas. S. Willes. This case was argued on the 24th November, 1855, before Jervis C. J., Parke B., Wightman J., Cresswell J. and Willes J. O'Brien (with him Brewer) appeared for the pri- soner. Bittleston (with him Cockle) for the Crown. O'Brien, for the prisoner. The counts of the in- dictment as framed, coupled with the Intent as found, do not disclose any offence. The making such coin as this is prohibited by 37 Geo. 3, c. 126. The words of the second section are as follows: " And whereas the practice of counter- feiting foreign gold and silver coin and the bringing into this realm, and uttering within the same false and counterfeit foreign gold and silver coin, and particularly pieces of gold coin commonly called Louis d'Ors and pieces of silver coin commonly called dollars, hath of late greatly increased, and it is expedient that provision should be made more CROWN CASES RESERVED. 545 effectually to prevent the same : Be it enacted that if 1855, any person or persons shall from and after the passing Roberts's of this Act make, coin or counterfeit any kind of coin, ^^^^' not the proper coin of this realm, nor permitted to be current within the same, but resembling or made with -intent to resemble, or look like any gold or silver coin of any foreign prince, state or country, or to pass as such foreign coin, such person or persons offending therein shall be deemed and adjudged to be guilty of felony," First, I contend that the acts alleged and found do not amount to an attempt to make counterfeit foreign coin, and I also contend that the acts found, although coupled with intent to coin in England, do not amount to an offence. There is no foundation for the proposition that any act done towards the commis- sion of a felony or a misdemeanor is an indictable offence. The act must be immediately connected with the offence. The last case on the subject is Dugdale v, .Regina{a), in which it was held, that although it is a misdemeanor to procure indecent prints with intent to publish them, it is not a mis- demeanor to preserve and keep such prints in posses- sion with such an intent. Suppose in that case the prisoner had procured cer- tain materials, say a brush and paper for the purpose of painting indecent pictures with the intention of afterwards circulating them, he would not by so doing have been guilty of an indictable offence. The deci- sion in Reg. v. Eagleton (b) shows that acts remotely leading towards the commission of an offence are not to be considered as attempts to commit it. In this case the procuring the dies was not an act immediately connected with the offence of coining in (o) 1 Ell. & Bl. 435. (6) Ante, p. 515. 546 CROWN CASES RESERVED. 1855, England. In order to commit that offence it would Roberts's ^^ necessary that the prisoner should have, not only Case. dies, but copper blanks, a preparation of silver, and other things which he did not possess. The possession of the dies was no more immediately connected with the offence of .coining than the taking a railway ticket to go to Birmingham for the purpose of procuring them would be. I apprehend that the phrase "immediately connected" with an offence means that there shall be nothing intermediate, nothing shall come between the act done and the commission of the offence itself The doctrine that an act, coupled with an intent, is indictable, is unsup- portable, and arose entirely from Rex v. Sutton {a). There the prisoner was convicted of unlawfully having in his possession two iron stamps and a silver sixpence coloured, with the intention of making and passing off counterfeit coin as half guineas. But the case was overruled in Bex v. Heath (b) ; and if that decision does warrant the proposition I have referred to, I submit that it is not law. Hex v. Fuller (c) proceeded upon Hex V. Heath, but both in Hex v. Fuller and Dugdale V. Regina the acts done were all that was necessary to be done up to the completion of the offence ; in neither case was there any other act to intervene before the commission of the offence. But here there were several acts to be done ; a small portion only of the machinery necessary for coining had been provided ; there were no copper blanks, no galvanic battery, and no preparation of silver. WiGHTMAN J. — Are not the acts done immediately connected, not remotely, with the completion of the offence ? O'Brien. The difficulty will be in drawing the line, (a) 2 Strange, 1074, and Cases (6) Russ. & Ry. 184. temp. Hardwicke. (c) Ibid, 308. CROWN CASES RESERVED. 547 nnless you rely on the principle that ail acts done in 1855. furtherance of an intent amount to an attempt. n„„„„^,. r KOBERTS S WiGHTMAN J. — You alludcd to the getting a tiase. railway ticket to Birmingham ; that is not necessarily connected with the offence, it might be for other purposes ; but it is difficult to get over the possession of the dies. Here are two dies, the obverse side and the reverse side of a Peruvian half-dollar, applicable to making them. I do not see how they could be applied to anything else. O'Brien^ With regard to the intent, I apprehend the mere going to Birmingham has as much to do with it as the possession of the dies. The procuring the dies to be made might be in consequence of an order he had received from Peru ; so far as the dies are concerned there is nothing criminal in procuring them any more than in going to Birmingham. I submit that all that has been done in this case cannot be construed into an attempt at coining, because I submit that an attempt must be an endeavour to do something within present capacity, and not that which, with the aid of other things, may be accom- plished at a subsequent period. In Regina v. Williams (a) the prisoner was indicted for an attempt to administer poison, and it was held that the giving the poison into the hands of a third person, and the endeavouring to procure that third person to ad- minister it, was not an attempt to administer poison. Cresswell J. — That case was tried before Lord Cranworth. The decision was on the construction of the words used in that particular statute ; but the same prisoners were afterwards tried before me on an indict- ment for the misdemeanor of doing the acts with a criminal intent, and were convicted on proof of the same facts. . («) 1 Den. Cr. Ca. 39. VOL. I. T T 548 CROWN CASES RESERVED. 1855. O'Brien. There is another point with regard to the Roberts's finding of the jury. There can be no doubt, on reading Case. the statute, that the offence contemplated and provided for was that of making counterfeit coin in England. Now, the jury found that the dies were procured to coin counterfeit Peruvian half-dollars, and to make a a few only in England by way of trying whether they would answer, before sending them to Peru, to make coin there. The finding of the jury amounts to this, that he was providing himself with this apparatus for the purpose of coining in Peru, and that the acts done in this country were merely for the purpose of ascertaining whether the dies would answer. Jervis C. J. — Suppose he had made these few speci- mens in this country, would not that have been making false coin within the statute ? Cresswell J. — If he had made them, what would he make them for 1 O'Brien. To ascertain whether they would answer his purpose. Jervis C.J. — What purpose? O'Brien. The making coin in Peru. Parke B — Would not the doing that constitute a felony, and be indictable under the Act of Parliament ? O'Brien. I apprehend that a person striking off a few impressions of coin would not necessarily be so j but there must be a making for the purpose of circu- lating. Jervis C. J. — Is it necessary in charging a person with coining to say that he does so for the purpose of circulating: ? O'Brien. No, my Lord, because that is included in the meaning of coining ; but a person may make specimens of foreign coins for the purpose of placing them in a museum, or for any other innocent purpose. Jervis C. J. — The making is an offence. A man Roberts's e. CROWN CASES RESERVED. 549 lias no right to say I did not intend to commit a 1855. felony; I only made a few specimens to put in a cabinet. It is coining ; and the object of the act is to prevent ^^^' coining. O'Brien. The jury do not find that he coined for the purpose of circulating abroad. Parke B, — The statute does not say for the purpose of circulating abroad. WiGHTMAN J. — I must pause before I come to that conclusion that a man eould legally procure dies to make false coin for the purpose of placing them in a museum. O'Brien. I submit that to constitute the offence a man must make the coin for the purpose of circulation with a view to defraud. Jervis C. J. — The act is directed against the making of false money. WiGHTMAN J. — The question is not what a man means to do with the coin after it is made. O'Brien. If it is made for the purpose of putting into a museum, I submit it is not money. Jervis C. J — What would it be then ? O'Brien. A coin, an imitation of a current coin. Cresswell J. — If it is a coin, it is making coin within the words of the statute. O'Brien. I apprehend the words were used to pro- tect the circulating medium, to control the circulation of counterfeits of any kind ; it is against a mischief of that kind that the statute is directed. I therefore submit first, that the acts done by the prisoner do not amount to an attempt, and are too remotely con- nected with the oflPence of coining to be indictable ; and secondly, as to the finding of the jury, that the acts stated were not exclusively due to the design of making coin in this country. When the prisoner ordered the dies, the finding of the jury is that he did T T 2 550 CROWN CASES RESERVED. 1855. so for the purpose of preparing an apparatus to make -^——37 coin in Peru ; the act therefore was not done with Case. intent to coin in this country, and if coin had been made in the manner and for the purpose stated in the case, it would not have been an oJdFence within the statute. Bittleston, for the Crown, was not called upon. ^.., Jervis C. J. — I am of opinion in this case that ^ J-s^.t.»x 'AJ the conviction is right. This is not an indictment for an attempt to commit a statutable offence, as was the T'C >: / V case in Reg. v. Williams (a), where the charge was an attempt to administer poison. Here there is no direct attempt to coin ; but the indictment is founded on a criminal intent, coupled with an act immediately connected with the offence. It is difficult, and perhaps impossible, to lay down a clear and definite rule, to define what is, and what is not such an act done, in furtherance of a criminal intent, as will constitute an offence ; at all events I shall not attempt to do so. Many acts, coupled with the intent, would not be suffi- cient. For instance, if a man intends to commit a murder, and is seen to walii towards the place of the contemplated scene, that would not be enough ; but although it is sometimes difficult to say whether a case comes within or ranges without the line, it is not difficult to say that the act done in this case is one which falls within it. Nobody can doubt that the pri- soner was in possession of machinery necessarily con- nected with the offence, for the express purpose of committing it, and which was obtained and could be used for no other purpose. Perhaps my learned brothers may define the line, but I will not do so ; it is sufficient that in my opinion this case is within it. Parke B. — I think it would be wasting time to (o) 1 Den. Cr. Ca 39. CROWN CASES RESERVED. 551 discuss whether the offence imputed falls on one side i855. or the other of a certain line. I quite agree that ^ r, II the prisoner had gone to Birmingham merely to Case. procure dies that would be too remote. I quite agree with the law laid down in Reg. v. Eagleton (a), that an attempt at committing a misdemeanor is not an indictable attempt unless it is an act directly approxi- mating to the commission of an offence, and I think this act is a sufEcient approximation. I do not see for what lawful purpose the dies of a foreign coin can be used in England, or for what purpose they could have been procured except to use them for coining. The acts done are clearly sufficiently leading to the offence to be indictable. WiGHTMAN J. — I am of the same opinion. No doubt the act was done with intent to commit a felony, and is sumcient to support such an indictment as the present one. It is an act immediately con- nected with the commission of the offence ; and in truth the prisoner could have no other object than to commit the offence. Every case must be taken with its own peculiar circumstances. It is impossible to lay down an exact rule, but it appears to me that an act has been done in the present case sufficient to support the indictment. Cresswell J. — I agree with my learned brothers that the act done in this case is sufficiently proximate to the offence. WiLLES J. — I expressed my opinion at the trial. Conviction affirmed. (a) Ante, p. 515. 552 CROWN CASES RESERVED. 1855. REGINA V. WILLIAM JARVIS. The prisoner was indicted under the 2 Wm. 4, c. 34, s. 8, for having feit coin, knowing it to be coun- terfeit, and with intent to utter and put oflFthe same. The The following case was reserved for the opinion of the Court of Criminal Appeal by the Deputy Recorder of the borough of Birmingham. The prisoner, William Jarvis, was tried before me, sion counterl the Deputy Recorder of the borough of Birmingham, at the General Quarter Sessions of the Peace holden for the said borough on the 26th day of June, 1855, upon an indictment charging him with having in his possession on the i6th day of June, 1855, a number of pieces of false and counterfeit coin, to wit, thirteen whosearched pieces of false aud counterfeit coin, resembling and ap- ihe prisoner parentlv intended to resemble and pass for thirteen found upon "^ ■' -i • n j L if him, in diffe- pieces of the Qucen's current silver coin called halr- of'his'dress! crowns, and fourteen pieces of false and counterfeit coin resembling and apparently intended to resemble and pass for fourteen pieces of the Queen's current silver coin called shillings, knowing the same to be false and counterfeit, and with intent to utter and put off the same. The prisoner was apprehended at twelve o'clock at night in a lodging-house in Birmingham by a police- man who searched him, and found upon him, in different pockets of his dress, four counterfeit crowns, mould, (each all electroplated, of the same date and the same mould, of the said i i • each crown bemg wrapped in a separate piece of paper, thirteen counterfeit half-crowns, all electroplated, of the same date and the same mould, each half-crown being wrapped in a separate piece of paper, and four- teen counterfeit shillings, all electroplated, of the four counter- feit crowns of the same date and mould, thir- teen coun- terfeit half- crowns of the same date and mould, four- teen counter- feit shillings of the same date and counterfeit coins being wrapped in a separate piece of paper), and four shillings in good money. Held, that there was sufficient evidence to go to the jury that the prisoner knew the coin to be counterfeit, and that he intended to utter it. CROWN CASES RESERVED. 553 same date and the same mould, each shilling being 1855. wrapped in a separate piece of paper, and four shillings jarvis's good money. On his apprehension, and at the police Case. station, the prisoner said that they (meaning the coun- terfeit coin) had been given him, while gambling, and he did not know they were counterfeit. Upon these facts it was contended for the prisoner that on the true construction of the Act of Parliament (the 2nd Wm. 4, c. 34, s. 8), under which the indict- ment was framed, there was no evidence to go to the jury that the prisoner knew the coin to be false or counterfeit, or that he intended to utter and put off the same, and a decision of Mr. Justice Maule at the War- wick Summer Assizes, 1854, on an indictment charg- ing a like offence under the same statute against the same prisoner, was cited to me and relied on. I told the jury that on the facts proved before them I thought there was evidence to go to them that the prisoner had the coin in his possession knowing the same to be false and counterfeit, and with intent to utter and put oflF the same, but that they must be fully satisfied on these points before they could find the prisoner guilty. The jury found the prisoner guilty of the misde- meanor, and I sentenced him to three years' impri- sonment in the gaol at Birmingham (as he was well known as a notorious dealer in and putter off of false coin). I request the opinion of the Court of Criminal Appeal whether the facts above stated justify the conviction of the prisoner in point of law ? This case was considered on the 24th of November, 1855, by Jervis C. J., Parke B., Wigutman J., Cresswell J., and Willes J. 554 CROWN CASES RESERVED- 1855. No Counsel appeared either for the Crown or for Jarvis's the prisoner. ^^^^- Jervis C. J— In this case the prisoner is charged with having counterfeit coin in his possession, know- ing it to be counterfeit, and with intent to utter and put it off. The case appears to have been reserved upon some supposed but unreported decision of my brother Maule ; about this case we know nothing, but it probably differed very widely in its facts from the present. Here, upon the person of the prisoner, are found four crowns of the same date and mould, thirteen half-crowns of the same date and mould, and fourteen shillings of the same date and mould, all counterfeit, and each coin wrapped in a separate piece of paper. It was contended that there was no evi- dence to go to the jury ; but the case was submitted to the jury, and they found that the prisoner knew the coin was counterfeit, and that he intended to utter and put it off; and I entirely concur with the jury. Parke B. — In Hex v. Fuller and Robinson {a), upon an indictment for procuring counterfeit shillings with intent to utter them as good, the evidence was that two parcels were found upon the prisoner con- taining about twenty shillings each, wrapped up in soft paper to prevent their rubbing against one another; and there was nothing to induce a suspicion that the prisoner had coined them, and on a case reserved the Judges were of opinion that having in possession this coin unaccounted for, and without any circumstances to induce a belief that the prisoner was the maker (b), was evidence of procuring with intent to utter. (a) East. T.1S16,}AS. Bailey J.; counterfeit coin with intent to Russ. & Ry. 308. utter it, was no offence ; Rex v. (6) Previously to the 2 Wm. 4, Stewart, Russ. & Ry. 288 ; S. P. c. 34, a. 8, being in possession of Rex v. Heath, ib, 184; and though CROWN CASES RESERVED. 555 The supposed decision of my brother Maule is 1855. quite contrary to this and the other cases cited Jarvis's^ 1 Russ. on Crimes, 48. ^^^*" Cresswell J. — The case states that the coin was found in different pockets of the prisoner's dress. There was sufficient evidence to warrant the finding of the jury. WiGHTMAN J. and WiLLES J. concurred. Conviction affirmed. the procuring counterfeit coin with swer to a charge of procuring. See intent to utter it was an ofifence, per Thomson C. B., Rex v. Fuller proof that the defendant was the and Rtibinson, Russ. & Ry. 308. actual coiuer was a sufficient an- ^ REGINA V. FRANCIS STUBBS. 1855. The following case was stated for the opinion of the The rule that 11 1 /-ii • /■ I a jury should Court of Criminal Appeal, by the Chairman of the not convict Quarter Sessions of the Peace for the county of "^p'p^^^^t"^^- Durham. «^''^«"'=^ °^ ri ■ Pin /■ I ^" accoin- At a General Quarter Sessions oi the Peace tor the piice is a county of Durham, held at Durham, on the 2nd day ti"e only™" of July, 1855, before Rowland Burdon, Esq., Chair- ^f^^^^^^^ man ; Francis Stubbs, Newton Wardle, William semble, that Wraithman and John Thornton were indicted for ij^^^f stealing and receiving, knowing it to be stolen, a advise the^ quit, unless the testimony of the accomplice be corroborated, not only as to the circumstances of the offence, but also as to the participation in it by the accused, and that where tliere are several prisoners, and the accomplice is not confirmed as to all, the jury should be directed to acquit the prisoners as to whom he is not confirmed ; but held, that this being a rule of practice only, if a jury choose to act on the unconfirmed testimony of the accomplice, the conviction cannot be quashed as bad m law. ^^^z -#. ^ ia /,r /j & 556 CROWN CASES RESERVED. 1855, quantity of copper or yellow metal, the property of Stubbs's Edward Bailey. Case. rpj^g evidence, as far as it went, to implicate Stuhhs, was as follows : Ralph Bailes, Joseph Eobson and John Eobson, three accomplices in the robbery, swore to the copper having been taken from the possession of the prosecu- tor on the nights of Thursday, Friday and Saturday, the 24th, 25th and 26th. days of May, in the year of our Lord, 1855. They swore that Stubbs was pre- sent at the last of these takings only, and that he assisted in carrying the copper to a place of deposit in the Hendon Banks, on Sunderland Moor, near the town of Sunderland, and that he assisted in carry- ing some of it from the place aforesaid, and in selling it at one Storey's, a marine store dealer in Sunder- land, and shared in the money that was produced by such sale. Storey was called, and swore that Wardle, Wraithman and Joseph Robson were the parties who brought the copper to his premises and sold it, and no further evidence was adduced as against Stubbs, but the accomplices were corroborated in other particu- lars in regard to the other prisoners. At the conclusion of the case for the prosecution, the Counsel for the prisoner Stubbs, after calling the attention of the Chairman to several cases, asked him to direct the jury that the evidence of the accomplices in respect of the prisoner Stubbs was not corrobo- rated, and that it ought to have been corroborated as to each prisoner individually ; whereas it was only corroborated as to two of the four prisoners, Stubbs not being one of the two. After hearing the Counsel for the prosecution, the Chairman directed the jury that it was not necessary that the accomplices should be corroborated as to each individual prisoner being connected with the crime charged ; that their being CROWN CASES RESERVED. 557 corroborated as to material facts tending to show that 1855. Wardle and Wraithman were connected with the Stubbs's robbery was sufficient as to the whole case ; but that the jury should look with more suspicion at the evi- dence in Stubbs' case, where there was no corrobo- ration than in the cases of Wardle and Wraithman, where there was corroboration, but that it was a ques- tion for the jur3^ The jury found all the prisoners guilty. Stubbs was sentenced to twelve months' imprisonment and hard labour. The question for the Court of Criminal Appeal is, whether the direction of the Chairman was right? a. Burdon, Chairman Quarter Sessions. This case was considered on the 24th November, 1855, by Jekvis C. J., Parke B., Wightman J., Cresswell J. and Willes J. No Counsel appeared for the prisoner. W. S. Grey appeared for the Crown, but was not called upon by the Court. Jervis C. J. — We cannot interfere in this case, although we may regret the result tliat has been arrived at. It is not a rule of law that an accomplice must be confirmed in order to render a conviction valid ; and it is the duty of the Judge to tell the jury that they may, if they please, act on the unconfirmed testimony of an accomplice. It is a rale of practice, and that only, and it is usual in practice for the Judge to advise the jury not to convict on the testimony of an accomplice alone, and juries generally attend to the direction of the Judge, and require confirmation. There is a further point in this case. Where an accomplice speaks as to the guilt of three prisoners, and is confirmed as to two of them only, the jury may, no doubt, if they please, act on the evidence of the accomplice alone" as to the third [»risoner ; but it Case. 558 CROWN CASES RESERVED. 1855. is proper for the Judge in such a case to advise the Stubbs's" JLirj^ that it is safer to require confirmation of the testimony of the accomplice as to the third prisoner, and not to act upon his evidence alone; for nothing is so easy as for the accomplice, speaking truly as to all the other facts of the case, to put the third man in his own place ; but a jury may, if they choose, act on the unconfirmed testimony of an accomplice ; in this case they have acted on the evidence before them, and we cannot interfere. Park;e B. — During the time that I have been upon the bench, now more than a quarter of a century, I have uniformly laid down the rule of practice as it has been stated by the Lord Chief Justice. I have told the jury that it was competent for them to find a prisoner guilty upon the unsup- ported testimony of an accomplice ; but that great caution should be exercised, and I have advised them — and juries have acted on that advice — not to find a prisoner guilty on such testimony unless it was confirmed. There has been a difference of opinion as to what corroboration is requisite ; but my practice has always been to direct the jury not to convict unless the evidence of the accomplice be confirmed, not only as to the circumstances of the crime, but also as to the identity of the prisoner. An accomplice necessarily knows all the facts of the case, and his story, when the question of identity is raised, does not receive any support from its consistency with those facts. The Chairman in this case has departed from the usual practice; but the jury having acted upon the evidence the Secretary of State only can interfere. WiGHTMAN J. — It has not been the uniform practice to require confirmation as to all the prisoners. In some cases it has been held that if there be confirma- tion of the accomplice as to one of the prisoners, the Stubbs's Case. CROWN CASES RESERVED. 559 jury may convict, as to all (a). The rule requiring I855. confirmation is one of discretion and not of strict law. Cresswell J.. — I agree in the view of the question taken by my brother Parke, and have always acted upon it. You may take it for granted that the accomplice was present when the offence was com- mitted, and there may therefore be no difficulty in corroborating him as to the facts; but that has no tendency to show that any particular person who may be accused was there. WiLLES J. — We sit under a statute to decide ques- tions of law, and questions of law only can be reserved for our opinion. This is not a question of law, but of practice. Conviction affirmed. (a) His Lordship referred to R. v. Dawber and B. v. Jones there note {d) 2 Stark, on Ev. 12, and cited. .'-REGINA V. HENRY SMITH. 1S55 The following case was stated for the opinion The prisoner of the Court of Criminal Appeal by Mr. Justice ^^f ^°"" ri J victed on an CrOMPTON. indictment The prisoner was convicted before me at the wm. 4 & Winchester Summer Assizes, 1855, on an indictment ^ X^'^i '^'^^' s. 3, charging charging him with wounding William Taylor, with him with • . , . , , . wounding A. intent to murder him. with intent On the night in question the prisoner was posted |9 ™ to murder The prisoner, supposing A. to be JB., shot at and wounded A. The jury found that the prisoner intended to murder B., and that he intended to murder the individual lie shot at supposing him to be B, Held, that the conviction was right. 560 CROWN CASES RESERVED. 1855. as a sentry at Parkhurst, and the prosecutor, Taylor, Smith's was posted as a sentry at a neighbouring post. The prisoner intended to murder one Moloney, and supposing Taylor to be Maloney, shot at and wounded Taylor. The jury found that the prisoner intended to murder Maloney, not knowing that the party he shot at was Taylor, but supposing him to be Maloney, and the jury found that he intended to murder the individual he shot at supposing him to be Maloney. I directed sentence of death to be recorded, reserving the question, whether the prisoner could be properly convicted on this state of facts of wounding Taylor with intent to murder him ? See Mex v. Holt (7 Car. and P. 518). See also Rex v. Byan (2 Moo. & Rob. 213.) Charles Crompton. This case was considered on 24th November, 1855, by Jervis C. J., Parke B., Wightman J., Crompton J. and WiLLES J. No Counsel appeared either for the Crown or for the prisoner. Jervis C. J. — There is nothing in the objection. The conviction is good. Parke B. — The prisoner did not intend to kill the particular person, but he meant to murder the man at whom he shot. The other learned Judges concurred. Conviction affirmed. CROWN CASES RESERVED. 561 REGINA V. HUGH JOSEPH SMITH. 1855. The following case was stated for the opinion of The prisoner the Court of Criminal Appeal by Mr. Bussell Gurney ^^t/d°of Q. C. stealing cer- At a General Session of Oyer and Terminer and fordgnraii- Gaol Delivery holden for the iurisdictiou of the Central "'^^ '^""J" , . •' ■' pany, which Criminal Court on the 28th day of August, 1855, certificates Hugh Joseph Smith was tried before me upon the L^videncr indictment hereinafter referred to for stealing ten ^^Ij^ treated scrip certificates of a foreign railway company, called with on the The Great Luxemburg Railway Company. The first Exchange'as count charged the prisoner with stealing: ten securities f^'P"^*., . .„ . foreign rail. for money, to wit certificates, each entitling the holder way. Held, thereof to ten half shares of 10/. each in the funds of certificates a certain company, called The Great Luxemhurq Com- are a valua- mi 1 1 • . . "1^ security pany. The second count charged him with stealing within the ten securities for money, to wit, certificates of shares \^eo!l c. 29 in the funds of The Great Luxemhurq Railway Com- s- 5, and that . 1 1 • • 1 1 • *"^ convic- pany. The third count charged him with stealing ten tion was securities for money and ten pieces of paper. "^ '' The theft was proved by satisfactory evidence. The documents themselves were not produced upon the trial, but the annexed was shown to be a facsimile. Evidence was given that, among dealers in railway stocks and shares upon the Stock Exchange in London^ these documents were treated and dealt with under the name of Great Luxemburg Railway Shares, and that they were scrip, entitling the holders thereof to receive dividends, and that they passed by delivery as Bank notes. No evidence however was given of the existence of any fund out of which such dividends Case. 562 CROWN CASES RESERVED. 1855. were payable, or of the payment of any dividends, or Smith's of the existence- of The Great Liixemhurg Railway Company. Upon the trial the following objections were made. First, that the documents were not within the provisions of the 5th section of 7 & 8 Geo. 4, C.29; and, secondly, that although not within the provisions of the said section, they were shown to be valuable securities, and consequently could not be properly described as pieces of paper. I however overruled both the objections, in order that the opinion of the Court for the consideration of Crown Cases should be taken upon the subject, and the jury, under my direction, found the prisoner guilty on all the counts. Entertaining doubts as to the propriety of my ruling, I have to request the decision of the said Court upon these points in the manner above stated, and whether such conviction can be supported on any grounds consistently with the facts hereinbefore stated. Judgment was respited upon the prisoner, and he stands committed to the gaol of Newgate to abide the determination of this case. Russell Gurney. {Copy of facsimile above referred to.) GRANDE COMPAGNIE DU LUXEMBOURG. HALF SHARE. (£10). TiTKK DU POBTEUR. CERTIFICATE TO BeARER. Dix Demi-Actions. Ten Half Shares. Le porteur de ce certificat a droit The holder of this certificate is h. dix demi-actions de dix livres entitled to ten half shares of Wl. chacune de la Grande Compagnie each in the Great Luxembourg du Luxembourg, regies par les Company, subject to the statutes statuts de la Societd Anonyme of the Societe Anonyme passed at constituee k Bruxelles le 11 Sep- Brussells the 11th September 1846, temhre 1846, et approuv^e par and sanctioned by royal decree of arr^to royal du ler Octobre suivant, the 1st October 1846, and to all the CROWN CASES RESERVED. 5G3 et soumises k tous les engagements contractes par la compagnie. L'intdrit k raison de cinq par cent par an sera pay^ sur ces demi-actions jusqu'k ce que la ligne soit exploitee de Bnueelles i Namur; aprls quoi les dividendes k r^partir proviendrout de I'exc^- dant qui restera apres le paiement des charges privilegiees. Entd. Exfrait des Statuts de la Grande Compagnie de Inixembourg . Art. 10. Le montant des actions sera acquitte de la maniere suirante: Deux-dixiemes seront verses im- in^diatement, s'ils ne I'ont pas ^te A6}k, par les souscripteurs. Les epoques successives des verse- ments uherieurs seront fixees par le conseil d'administration ; un intervale de trois mois les s^parera toujours ; chaque versement ne pourra ^tre que d'un dixieme au plus. Art. 11. Les appels de fonds se feront par avis ou insertions publics un mois d'advance dans trois des princi- paux journaux quotidiens de Bru- scelles et de Londres. Ces avis, in- seres deux fois dans le mois qui prec^dera I'echeance, serviront de mise en demeure snffisante a I'egard de tous les actionnaires. Art. 12. Les vers'ements se feront dans les caisses designees par le conseil d'administration. II sera fait men- tion sur chaque titre des verse- ments successivement operas. Smith's Case. arrangements which have been iy5 made by the company. Interest at the rate of five per cent, per annum will be paid on these half shares until the line is opened from Brussells to Namur, after which the dividends will be derived from the surplus which may remain after payment of pre- ferential charges. Deux des Administrateurs. Thvo of the Directors, Sect/. Extract from the Statutes of the Grand Lttxembourg Company. Art. 10. The amount of the shares shall be paid in the following manner : Two-tenths shall be paid imme- diately, if they have not been already, by the subscribers. The successive periods of the further payments will be fixed by the Board of Directors, always with an in- terval of three months between them ; no instalment shall exceed one-tenth. Art. 11. The calls shall be made by notice or advertisements published one month previously in three of the principal daily papers of Brussells and London. These notices, in- serted twice during the month preceding the day of payment, shall be considered sufiScient and peremptory on all the shareholders. Art. 12. The payments shall be made at the places designated by the Board of Directors, and shall successively be acknowledged on each scrip. Art. 13. Art. 13. Tout actionnaire en retard d'ef- Every shareholder in arrear for VOL. I. U U 564 CROWN CASES RESERVED. iQKc fectuer les versementa exigibles, calls shall be bound to pay to the ' sera tenu de bonifier & la soci^t^, company interest at the rate of five Smith's depuis IMchdance du terme, I'int^- per cent, per annum on all sums Case. r&t k raison de 5 p. c. I'an, sur to be paid by him from the matu- toutes les sommes k verser par lui. rity of each call. Every share- Tout actionnaire qui n'aura point holder who shall fail to pay a call satisfait b. un appel de fonds dans within the month from its falling le mois de I'ech^ance du terme due may be declared to have for- fix4 pourra etre ddclar^ dechu de feited his rights, and his shares ses droits ; ses actions pour- may be sold at the will of the ront Stre vendues au gre de directors, who will account to him I'administration, qui lui en ren- for their price after deducting seignera le prix aprfes deduction des expenses. Notice shall be given to frais. II sera donn^ avis aux defaulting shareholders of the in- actionnaires d^faillants de cette tended forfeiture by two adver- decheance kencourir parune double tisements in the London and Brus- insertion dans trois journaux de sells newspapers, at least fifteen Londres et de Bruxelles quinze days previously thereto, jours aux moins avant d'appliquer le r^sultat. This case was argued on 24th November, 1855, before Jervis C. J., Parke B., Wightman J., Cromp- TON J. and WiLLES J. Metcalfe appeared for the prisoner ; no Counsel appeared for the Crown. Metcalfe, for the prisoner. First, the prisoner has committed no offence within the fifth sect, of 7 & 8 Geo. 4, c, 29. The scrip certificates in question are not within the provisions of that section. In the first branch of the section, as to stealing securities for shares in the public stocks or funds, the words " or of any foreign state " are used ; and the same words appear in the third branch of the section relating to stealing securities for money. But those words are omitted in the second branch of the section which relates to securities for shares in the funds of any body corporate, company or society, or to any deposit in any savings bank. Jervis C. J. The thing done here is within the words and within the mischief of the act. Metcalfe. The omission to which I have referred CROWN CASES RESERVED. 665 is a strong argument to show that this branch of the ISSS. section was not intended to extend to securities in the " smith's hands of a foreign company. *^^^^- The Forgery Act, 1 Wm, 4, c. 66, is an illustration of the rule of construction for which I contend. The 18th section relates to bills of exchange and promissory notes, of all bodies corporate or com- panies carrying on the business of bankers; but it was thought necessary by the very same section to provide specifically for the notes and bills of foreign bodies corporate and foreign companies. The learned Counsel also referred to 2 Geo. 2, c. 25, 9 Geo. 4, c. 55, s. 5, and to iJea; v. M'Kay{a), and contended, that to satisfy the enactment in sect. 5 of 7 & 8 Geo. 4, c, 29, the instrument must fall strictly within the description specified in it, and that the scrip certificates of a foreign company did not fall within that description. Secondly, although the scrip certificates are not within the statute, they are nevertheless shown to be valuable securities, and consequently cannot be pro- perly described as pieces of paper : Reg. v. Powell {b), Reg. V. Watts (c). Jervis C. J. — I think the conviction was right. It is only necessary that the decision of the Court should be expressed upon the first point, and that depends on the answer to the question, whether these scrip certifi- cates are "valuable securities" within the meaning of sect. 5. of 7 & 8 Geo. 4, c. 29 ? I think that they are. They are clearly within the mischief intended to be prevented by the act, namely, the stealing of valuable property. Then, are the words of the section large enough to include this case ? I think they are. The (o) Russ. & Ry. 71. Ah) 2 Den. C. C. 403. (e) Ante.-p. 32igS ,:J2..^, u u 2 566 CROWN CASES RESERVED, 1S55. words in the two branches of the section preceding Smith's '^^^ following that on which the indictment is founded, Case. as to foreign states, extend the otherwise limited meaning of the expressions, "public stocks, funds and money," and tend to show that the expression " funds of any body corporate, company or society" in the intermediate branch are intended to have the larger construction. I agree that the offence is territorial ; but property, when it comes info this country, is under the protection of its laws, and it is quite as much an offence to steal a security for shares in a foreign com- pany as to steal a security for shares in an English company. The stealing the scrip in question is, I think, as much within the statute, as the stealing a foreign bill when brought into this country would be. Parke B My first impression was that the statute did not extend to securities for shares in the funds of a foreign body corporate or foreign company. The words used are, " in the funds of any body corporate, company or society, or to any deposit in any savings bank." It is true there are corporations in foreign countries, but they are not of the same description as our own. The words " company or society" are some- what of an English character, and "savings banks" are peculiarly so ; but though I felt a little doubt about it, I do not mean to dissent from the view entertained by the Court ; and no doubt the case is clearly within the mischief intended to be provided against by the statute. WiGHTMAN J — I agree entirely in the opinion expressed by the Chief Justice. The introduction of the words " foreign state," wherever public funds or money are referred to, strengthens this view of the statute. Those words are used where there might be ambiguity or difficulty to give an extended operation to the act ; and where there can be no ambiguity or CROWN CASES RESERVED. 567 diflScuIty they are not used. The language of that 1855. branch of the section which we are considering, is smith's quite large enough to include the present case. •^*=^- Crompton J. — My impression is the same, although I am not quite so clear on the point". The statute of Anne which makes promissory notes negotiable was, after much consideration, held to apply to foreign notes. The words of this statute are general enough, and upon the whole I think they are sufficiently large to include this case, which is no doubt within the mischief intended to be provided against. WiLLES J. concurred. Conviction affirmed. REGINA V. THOMAS LANDS alias WHITE. 1S55. The following case was stated for the opinion of the Onanindict- Court of Criminal Appeal by Mr. Justice Crompton. "bankX'r' The prisoner was convicted before me at the Sep- under sect. iember Old Bailey Sessions, 1855, on an indictment 12 & 13 Vict, containing counts framed on the 253rd section of the '^'■}P^'l?^' ° within three Bankrupt Act, 12 & 13 Vict. c. 106. One set of months next preceding the filing of a petition in bankruptcy, obtaining goods on credit under the false colour and pretence of dealing and carrying on business in the ordinary course of trade, it is necessary for the prosecution to prove, not only the petition to and adjudication by the Court of Bankruptcy, but also the preliminary matters, viz. the petitioning creditor's debt, the trading and the act of bankruptcy. The act of bankruptcy relied upon being the filing of a petition in the Court for Relief of Insolvent Debtors, a copy of the petition, certified as required by sect. 239 of the above statute, was put in evidence, but there was no proof of the date of the filing except the indorsement at the back of the petition. Held, that such indorsement was no evidence of the date of the filing of the petition, and therefore no evidence of the act of bankruptcy. 568 CROWN CASES RESERVED. 1855. counts was framed upon the first branch of the 253rd L^jjpg.g section, which makes it a misdemeanor " if any bank- Case, nipt shall within three months next preceding the filing of the petition for adjudication of bankruptcy, imder the false colour and pretence of carrying on business and dealing in the ordinary course of trade, obtain on credit goods, with intent to defraud the owner thereof." Another set of counts was framed on the second branch of the same section, rendering it a misde- meanor "if any bankrupt shall within such time and with such intent remove, conceal or dispose of any goods so obtained." In the course of the trial several objections arose, which I reserved for the opinion of the Judges. The filing the petition for adjudication in bank- ruptcy and the adjudication of bankruptcy were on the 3rd April, 1855. The first objection was to the suflBciency of the proof of the act of bankruptcy and of the time when it was committed. The act of bankruptcy relied upon was the filing a petition in the Insolvent Court. The proof offered was a copy of the petition to the Insolvent Court, purporting to be signed by the oificer in whose custody the petition was. See 12 & 13 Yict. c. 106, s. 239. The only proof offered as to the time of filing this petition was the indorsement on the back of the paper (amongst other things) of the time of the filing the petition. The indorsement was as follows: " No. 65076. Mr. Commissioner Murphy. First arrest, 15th day of February, 1855. Commitment, 15th day of February, 1855. Petition, dated 22nd day of February, 1855. CROWN CASES RESERVED. 569 Petition filed 27th day of February, 1855. 1855. Vesting Order, 28th day of February, 1855. l^^^^.. Copy petition of Thomas Lands, Debtors' Prison for Case. London and Middlesex. g. d. Folios, 3 - - - 1 Form - - - 8 1 8 Certificate - - 2 6 4 2 Attorney, H. B. Silvester. Address, 18, Great Dover Street, Newington" The only signature of the officer was in the inner fold of the paper, which contained as follows : " In the Court for Relief of Insolvent Debtors. " I hereby certify the within to be a true copy of the petition of Thomas Lands. " Rich. W. Yeo, " Deputy to Henry Simpson, chief clerk of the said Court, in whose custody such petition now is." The paper proved in evidence is to be in Court, and may be referred to as part of the case. The second objection was that by the use of the word bankrupt in the 253rd section, the legislature must be taken to have intended a person who had committed an act of bankruptcy before the obtaining the credit or concealing or removing the goods. No act of obtaining or removing or concealing after an act of bankruptcy was proved. The third objection related to the counts for obtain- ing the goods on credit. Some of these counts charged the prisoner with obtaining goods the property of Henry Mokesley, and other counts charged him with obtaining goods the property of WilUarn Langley. 570 CROWN CASES RESERVED. 1855. i?o^es% proved that the prisoner came to hini in j^^jj^g.g Northamptonshire and gave an unlimited order, on Case. which he supplied him with goods to the amount of 160Z. 5s. in about two days after the 14th December. When the prisoner accepted a bill drawn upon him for the first lot, about the 28th December, he sent another order, and the goods so ordered were dis- patched on the 4th January, 1855. Rokesley was a shoe manufacturer in Northampton- shire, and sent the goods from that county to the prisoner in London. William Langley was also a shoe manufacturer in Northamptonshire. The prisoner ordered from him on the 28th or 29th November, 1854, goods for ship- ping and for shop trade. And in pursuance of that order goods were sent from Northamptonshire to the defendant in London, on the 1st, 4th, 18th, 22nd and 26th December, 1854, and on the 1st, 8th and 15th January, 1855. There was no evidence of any order or request to send any of the goods within the three months next before the adjudication of bankruptcy, and it was con- tended that the merely receiving the goods within that time, in consequence of prior orders, did not con- stitute the oiFence of obtaining within the meaning of the statute. The last objection related to the counts for removing and concealing goods within the three months. There was evidence of removing and concealing within the three months some of the goods ordered before the three months and received by the prisoner after the commencement of the three months. It was contended that the removing and the concealing within the three months goods which had been ordered before the three months, and had been sent in pursuance of such order within the three months, did not constitute the offence CROWN CASES RESERVED. 571 of removing or concealing under this branch of the 1855. statute ; and that the enactment referred only to cases ^lands's of removing or concealing goods which had been Case. obtained at such time and in such manner and with such intent as to fall within the former branch of the section against obtaining goods on credit. I respited judgment and the prisoner remains in custody. Charles Crompton. This case was argued on 24th November, 1855, before Jervis C. J., Parke B., Wightman J., Crompton J. and Willes J. G. Francis {O'Brien with him) appeared for the Crown, and Ballanline {Parry with him) for the prisoner. Ballantine, for the prisoner. The first objection, though technical, is important. The indictment alleged, and the prosecutor was bound to prove, the petition to the Court for Relief of Insolvent Debtors, and all the other elements of the bankruptcy. It is not sufficient to rely on the adju- dication of bankruptcy alone. The word " bankrupt," in sect. 253, means a person duly adjudicated a bankrupt, and it is therefore necessary to prove the trading, the petitioning creditor's debt, and the act of bankruptcy ; Rex v. Jones (a). Parke B. — In sect. 252 the words are, " If any bankrupt shall, after an act of bankruptcy committed, or in contemplation of bankruptcy," &c. The word " bankrupt " there seems to mean a person actually bankrupt; but in sect. 253 there are no qualifying words, and the word " bankrupt " in that section seems to be used in its strict sense. (6) 4 B. & Ad. 345. 572 CROWN CASES RESERVED. 1855. Ballantine. Here it was not shown that the de- ~~ V~ fendant was duly adjudged a bankrupt, as there was Lands 8 "' „ , i rri * r Case. no evidence of the act of bankruptcy. Ine act ot bankruptcy relied on was the applying by petition to the Court for Relief of Insolvent Debtors, which is by sect. 74 of 12 & 13 Vict. c. 106 (a) to be deemed an act of bankruptcy from the time of filing such petition. It was necessary, therefore, to show the time when the petition was filed, and of this there was in fact no evidence. The only evidence was a copy of the petition itself, certified as required by sect. 239 of 12 & 13 Vict. c. 106 (&). Parke B. — Section 233 makes the advertisement in the Gazef^e conclusive evidence of the bankruptcy ; but here the question of the conclusiveness of such proof of the adjudication does not arise, for the Gazette was not given in evidence. Ballantine. Section 233 does not extend to criminal cases, and if it did the Gazette was not put in. For anything that appears the petition might have been filed after the adjudication in bankruptcy. It is true that on the indorsement on the back of the (a) The section enacts, " that the any vesting order, schedule, order filing of a petition in the Court for of adjudication, and other orders the Relief of Insolvent Debtors in and proceedings purporting to be England by any such trader who signed by the officer in whose shall be in actual custody, for his custody the same shall be, or his discharge from custody, and who deputy, certifying the same to be a shall apply by petition to such true copy of such petition, vesting Court for his discharge from cus- order, schedule, order of adjudica- tody according to the laws for the tion, or other orders or proceed- relief of insolvent debtors in Eng- ings, and appearing to be sealed land, shall be deemed to be an act with the sed of such Court, shall of bankruptcy from the time of at all times be admitted under this filing such petition." act as sufficient evidence of the (c) That section enacts, " that a same, and of such proceedings copy of any petition filed in the respectively having taken place Court for the Relief of Insolvent without any other proof whatever Debtors in England, &c., and of given of the same." CROWN CASES RESERVED. 573 petition a day is named as the day on which the 1855. petition was filed ; but that indorsement is not L^jj^g.g evidence, although the copy of the petition itself duly Case. certified is. There was no evidence of that except this indorsement, to the correctness of which the officer of the Court does not profess to certify ; and if he had certified, the indorsement is no part of the petition, and the certificate would not have made it admissible by virtue of the statute (a). G. Francis, for the Crown. First, it is not now necessary to prove the petitioning creditor's debt, the trading or the act of bankruptcy. Evidence of the adjudication is sufficient. Rex v. Jones was decided upon 6 Geo. 4, c. 16, s. 112, and is not applicable to the present statute. The section on the construc- tion of which the decision in Rex v. Jones was founded enacts, " that if any person against whom any com- mission has been issued, or shall hereafter be issued, whereupon such person hath been or shall be de- clared bankrupt, shall" &c. The words in section 253 of the present statute are simply "any bankrupt." Under the 6 Geo. 4, c. 16, the Court of Bankruptcy had no primary jurisdiction, and had no jurisdiction to adjudicate unless the commission had duly issued. But now the Court of Bankruptcy is a Court of record; proceedings in it are instituted by petition, and this Court will presume omnia rite acta in favour of its decision ; Reg v. Hilton (6). Parke B. — Section 253 does not say " if any joer- son" shall fraudulently obtain goods on credit, but " if any bankrupt." Francis. The word bankrupt, in that section, means any person adjudged a bankrupt ; it is so used (a) As the judgment of the Court objections are omitted, proceeded on this point alone, the (6) 2 Cox C. C. 318. arguments of Counsel on the other 574 CROWN CASES RESERVED. 1855. in sections 252 and 255, and such has been the con- L^NDs's struction put upon the word in 6 Oeo. 4, c. 16, s. 84 ; ^^^^- Cannan v. The South Eastern Railway Company (a), Norton v. Walker (6). Secondly. There was sufficient evidence of the date of the filing of the petition. The certificate of the officer of the Court shows that the petition had been filed, because it is filed when it reaches its place of custody. The petition is subscribed on the 22nd February, and the adjudication in bankruptcy was on the 3rd April; and the filing therefore must have been between those dates, and consequently within two months of the adjudication. Section 74 of 12 & 13 Vict. c. 106 makes the filing of the petition an act of bankruptcy in the event of the adjudication in bank- ruptcy following within two months of such filing. It was therefore only necessary to show that the adjudication in this case was within two months, and that was conclusively proved by the date of the peti- tion itself, coupled with the date of the certificate and the date of the adjudication. Thirdly. If the indorsement were necessary, the petition being certified, that certificate made the in- dorsement evidence of the date of filing; Jones v, Nkholls (c). Jervis C. J. — In that case the order was part of the instrument to which it was annexed. Jervis C. J — It seems to me that the objection Mr. Ballantine first presented to us must prevail. Section 239 of the statute makes the certified copy of the petition admissible in evidence, but there is no evidence to show when it was filed, and conse- quently no evidence of the act of bankruptcy or wheii it was committed. The indorsement at the back of (o) 7 Exch. Rep. 843. (i) 7 Exch. Rep, 480. (c) 3 Moore & Payne, 12. CROWN CASES RESERVED. 575 the petition is no part of the petition itself, and is not 1855. made evidence by the statute. Then, was it necessary ~lI^^^^ to prove the act of bankruptcy ? I think that ac- Case, cording to Bex v. Jones, it was necessary^^for the prosecutors to prove all the ingredients of the bank- ruptcy. They have not done so, and the conviction must be quashed. Parke B. — I am entirely of the same opinion. The other learned Judges concurred. Conviction quashed. '--y '/,...■ :-C y^y REGINA, on the Prosecution of The Justices of 1835. Bedfordshire, o. ABRAHAM ARMAN. The following case was stated for the opinion of The prisoner the Court of Criminal Appeal by the Recorder of yJcteTon an Bedford. indictment At the Quarter Sessions for the borough of Bedford, him with holden on the 29th day of June, 1855, before the L'^^r'lt Recorder, Abraham Arman was indicted for embez- appeared in evidence that zlmg the several sums or seven shillings, one penny, hewasstore- sixteen shillings, seven pence, and ten shillings, the cleXat^a monies of the said justices. county gaol, •' and that It was no part of his duty (which was defined by written instructions) to receive money ; but that he had from time to time received moneys in tlie absence of the governor of tlie gaol, aud to the knowledge of some of the justices. It was submitted on the part of the prisoner, that he had not received the money by virtue of his employment, and that that question ought to be left to the jury; but the Recorder directed the jury, that if they believed that the prisoner received the money, he did receive it by virtue of his employment. Held, that the question whether the prisoner received the money by virtue of his employment ought to have been left to the jury, and that the conviction was wrong. 576 CROWN CASES RESERVED. 1855. The prisoner was employed in the service of Arman's ^^^^ prosecutors, under Robert Evans Roberts the Case. governor of the county gaol, as storekeeper and clerk of the prison, and on his appointment written in- structions, of which a copy is annexed, were delivered to him. The prisoner was from time to time informed by the trades instructor of the sale of goods manufactured in the prison, and it was his duty to enter an account of these in the day book, and to make out bills of parcels and receipts for the purchasers. The governor usually received the payments made by customers for such goods, but sometimes in his absence the prisoner received them, and when he did so the course of business was, that he should on the same day enter the receipt thereof in the day book, and should hand over to the governor the amount so received. It was proved also by two of the prose- cutors that they had themselves made payments to the prisoner for goods manufactured in the gaol, and that it was in their knowledge that he received monies from customers for goods so manufactured. It was objected by the Counsel for the prisoner, that he had not received the monies by virtue of his employment, and that it was a question for the jury to decide whether he had so received them or not. The Recorder told the jury that under these cir- cumstances, if they were satisfied that the prisoner had received the monies, he was of opinion that he received them by virtue of his employment. The jury having found that he did so receive them, the Recorder told them that the only question then left was, whether he embezzled them. The jury found the prisoner guilty, whereupon judg- ment was postponed, and the prisoner was discharged on bail, to appear at the next Epiphany Sessions for the borough. CROWN CASES RESERVED. 577 The opinion of the Judges is asked: Whether the 1855. Recorder ought not to have left it to the jury to say akman's whether or not the prisoner had received the monies Case, by virtue of his employment ? The following is a copy of the instructions delivered to the prisoner on his appointment, as stated in the case: Instructions to Storekeeper and Clerk. To enter upon his duties at unlocking time in the morning, to superintend the cleaning of the offices, and to consider himself responsible for every thing therein. He is not to allow subordinate officers to interfere nor meddle with any of the books, nor must he permit them to congregate nor gossip in the office. [Meals, &c.] He must go to breakfast at 7.45, return at 8.30 a.m. ; dinner at 12, return at 1 p.m., except on Tuesdays (V. J. Meetings) ; in those days, if the meetings are not over before 1 o'clock, his dinner must be brought to the prison. [Duties.] He will take his turn at the front gates in night duty, in common with the gate and assistant porter, except the week preceding and during the Assizes and Sessions, and at other times, should the governor require his service. When not on night duty, his duties will cease at 7 p.m. ; when on night duty the same time allowed him for tea as to the other officers. He will have a Sunday off duty in common with the other officers. [Office.] To check the daily state book daily ; to take the utmost care of the commitments and other documents in the office ; to endorse and deposit them in their proper place ; to post the provision books and prison registers up every day ; to collect the invoices for the weekly meeting on Tuesday; the requisition list to be prepared ; the accounts from the various cash books to be prepared and laid before the governor for 578 CROWN CASES RESERVED. 1855. signature every Monday evening ; the stock book to Abman's 1*6 regularly posted up. Case, [Stores.] The storekeeper alone will be held responsible to the governor for the safe keeping and proper distribution of the stores in his charge, to enter all articles received afld issued in the books supplied for that purpose, stating from whom received and to what department of the prison issued. He must also see that the articles supplied are according to sample ; any departure therefrom he must at once communicate to the governor. The general issue of stores for the ensuing week to be issued every Friday evening at four o'clock, and only those articles are to be issued as are applied for and entered in the requisition book, which the store- keeper will lay before the governor for his inspection. [Prisoners.] Names to be entered in " Register," " Description book," " Sentence book" and " Diary ;" if a fine, in " Fine book ;" also the commitments laid before governor every evening, endorsed with the usual particulars. Every Friday make out list of discharge prisoners for the ensuing week. Borough prisoners to be entered in " Borough prisoners' book." Punishments by governor to be entered every week for V. J. meetings. [Government Convicts.] Prepare weekly return of convicts every Saturday; also "Monthly return," 1st of every month to be forwarded to Director of Convict Prisons. Sessions. [Manufactory.] The outstanding accounts to be made and sent out previous to every Quarter Sessions. [Bills.] Forms to be sent to parties supplying goods previous to each Sessions. [Sessions.] Black List for Assize and Sessions Calendars to be prepared for ditto in the usual form. CROWN CASES RESERVED, 679 [Stationery.] Check off all articles supplied as' 1855. stated in the contract for stationery. ~~A^^^I^ Robt. E. Roberts, Case. Governor. 13th February, 1854. This case was argued on 24th November, 1855, before Jervis C. J., Parke B., Wightman J., Cress- well J. and WiLLES J. Pearse appeared for the Crown and Tozer for the prisoner. Tozer, for the prisoner. The written instructions defined the duties of the prisoner. He was not a regular servant; his duties were statutable, and the instructions which defined them were approved by the Secretary of State pursuant to 4 Geo. 4, c. 64; it therefore cannot be said that he received the mone}' by virtue of his employment. Jervis C. J. — But it does not seem to be disputed that he was in fact sometimes employed to receive money. If he was de facto employed to receive money, it does not matter whether the instructions defined the employment or not. Tozer. All that was admitted was the receipt of the money, and the Chairman was requested^to ask the jury whether it was received by virtue of the employ- ment, instead of which he told them that in point of law it was so received. Pearse, for the Crown. The meaning of the Chairman's direction is, that if the jury believed the evidence of the practice, that would justify them in finding that the money was received by virtue of the employment, and therefore in substance the question was left to the jury. Jervis C. J The case does not so state it. The Chairman ought to have asked the question whether VOL. I. XX 580 1855. Abman's Case. CROWN CASES RESERVED. the money was received by virtue of the employment ; but it appears quite clearly that he did not. Parke B. — He should have explained to the jury that there might have been an employment by the justices independent of the statutory regulations, and then asked them whether there was in fact such an employment, and whether the money was received by virtue of it. The other learned Judges concurred. Conviction quashed. 1855. REGINA V. WILLIAM DIXON and MARY ANN LEE. The following case was stated for the opinion of the Court of Criminal Appeal by the Recorder of Leeds. The prisoners were indicted for felony at the Leeds Borough Sessions, holden before the Recorder of that borough on the 23rd day of October in the year of our Lord 1855. The indictment contained three counts. The first count charged the prisoners with feloniously stealing from the person oi John Grimshaw money to the amount and value of thirty-eight pounds The prisoner was con- victed upon an indict- inent for stealing a pnrse con- taining seven 52. notes and other money. It was found hy the jury that the purse and its contents were lost by the prose- cutor and found by the prisoner. There was no evidence that the notes had any name or other mark upon them indicating to whom they belonged, nor was there evidence of any other circumstances which would disclose to the prisoner, at the time when he found the property, the means of discovering the owner ; but the jury being asked whether, at or after the time of finding the purse and its contents, the prisoner believed that there was a reasonable probability that the owner could be found, answered that he did believe that the owner could be traced. Held, that the prisoner was not properly convicted. CROWN CASES RESERVED. 581 ten shillings, and one cotton purse of the value of one i855, shilling, of the goods, monies and chattels of the said jjj^^,^,^ John Grimshaw. The second count charged them with Case, feloniously stealing money and purse (described as before). The third count charged them with feloniously receiving money and purse (described as before), then lately before feloniously stolen, knowing them to have been feloniously stolen. Both prisoners pleaded not guilty to all the counts ; and issue was joined on the part of the Crown. The case was tried at the said Sessions before the said Recorder and a jury. No evidence was given sufficient to support any of the charges against Mary Ann Lee. As to William Dixon, the following facts were proved. John Grimshaw, about four in the afternoon of the fourth day of September last, being then in the town of Leeds, placed in a black purse seven five- pound notes, three sovereigns and three shillings; he at that time put this purse in an inside pocket of a waistcoat which he then had on. He did not see either the purse or the money again before he discovered, as after mentioned, that he had lost them. About eight o'clock in the same afternoon he quitted a public-house where he had been drinking, and at that time he felt his purse in the pocket in which he had placed it. He was then not sober. He afterwards left Leeds by a railway train, which arrived at Bradford soon after ten o'clock that afternoon, and on his arrival there he found that he had not the purse or the money. He returned to Leeds early on the next morning and com- municated the facts to the police. About eleven o'clock on the afternoon of the same fourth day of September last, William Dixon was seen in possession of two of the five-pound notes which had been placed in the purse by John Grimshaw. William Dixon changed X X 2 582 CROWN CASES RESERVED. 1855. one of these two notes, and endeavoured to change Dixon's t^^ Other, but was not able to do so. On the next Case, morning, between seven and eight o'clock, William Z>?'a;ow attempted to change one of the notes that had been placed in the purse by John Grimshaw. A policeman, under the belief that this was a forged note, asked William Dixon where he had got that note and the note which he had changed on the preceding night. William Dixon answered that he had found both last night in the Croft. The Croft is an open area in a much frequented part of Leeds; and there was full time for John Grimshaw to have been in the Croft between the time of his leaving the public-house and his coming to the railway station at Leeds on the said preceding night. The Counsel for William Dixon urged to the jury that the story told by William Dixon was probably true, and that John Grimshaw had probably lost the purse and money in the Croft. It was not disputed that William Dixon, if he found the money, intended at and always from the time of finding it to appro? priate it. But the Counsel contended that, on this supposition, William Dixon was entitled to an acquittal on all the counts, The jury stated that they were of opinion that the purse and money were not stolen from John Grim- shaw's person, but lost by him, and found by William Dixon. The Recorder then desired them to consider four questions, namely : First. Whether John Grimshaw had intentionally abandoned his right to the money ? Secondly. Whether William Dixon, at or after the time of his finding the money, believed that the owner had abandoned his right to the money ? Thirdly, Whether there was or was not reasonable CROWN CASES RESERVED. 583 probability, at and from the time of the finding, 1855. that the owner could be traced ? ",7 ; _ Dixon s l-ourthly. Whether at or after the time of the Case. finding, William Dixon believed that there was not reasonable probability that the owner could be traced? The jury answered the first two questions in the negative and the third in the affirmative ; and, as to the fourth, they said that they were of opinion that William Dixon did believe that the owner could be traced. Tlie Recorder then, at the request of the Counsel for William Dixon, put three more questions to the jury, namely : First. Did the owner know where to find the money ? Secondly. Had William Dixon reason to know to whom the money belonged ? Thirdly. Did William Dixon reasonably believe that the owner knew where to find it ? The jury answered all the last mentioned three questions in the negative. The opinion of the Recorder upon all the questions of fact coincided with that of the jury, and he told the jury that upon their view of the facts William Dixon was guilty of the offence charged in the second count. The jury found that Mary Ann Lee was not guilty of any of the offences charged in the indictment, and that William Dixon was guilty of the offence charged in the second count, and not guilty of any other offence charged in the indictment. The Recorder sentenced William Dixon to be imprisoned and kept to hard labour in the Leeds Borough House of Correction for the space of five calendar months, but respited the execution of the judgment, William Dixon, not being able to give bail, was committed to the said house of correction until 584 CROWN CASES RESERVED. 1855. the question hereafter mentioned should have been -7, ~ considered. He is still confined in the said house of Case. correction. The question for the opinion 01 the Justices of either bench and the Barons of the Exche- quer is, whether the prisoner ought to have been so convicted as aforesaid under the circumstances above mentioned ? T. F. Ellis, Recorder of the said borough of Leeds. This case was argued on 24th November, 1855, before Jervis C. J., Parke B., Cresswell J., WiGHTMAN J. and WiLLES J. Pickering Q. C. appeared for the Crown ; no Counsel appeared for the prisoner. Pickering Q. C, for the Crown. A person finding lost property is not entitled to convert it to his own use without using means to find the owner. There may be an ambiguity in the fourth question, which is whether at or after the time of the finding the prisoner believed that there was not reasonable probability that the owner could be traced ? This case is distinguishable from Regina v. Thurburn (a). Parke B. — Traced is an ambiguous word. The notes were lost, and the prisoner took possession of them and kept them. If the prisoner had seen them drop from the prosecutor, or if the notes had had the owner's name upon them, or there had been any marks which enabled the prisoner to know at the moment when he found the notes who the owner was, or that he could be discovered, it might have been within the principles laid down in Regina v. Thurburn (^d), Pickering. It is found by the jury that the prisoner believed that he could have traced the owner. (a) 1 Den. C. C. 387. Case. CROWN CASES RESERVED. 585 Cresswell J Not that at the time of finding he 1855. so believed. Dixon's Jervis C. J. — The finding of the jury is that the notes were lost, that the prisoner did not know the owner, but that it was probable that he could have traced him. He was not bound to do that. Pickering. There must be proper endeavours to find the owner. Regina v. West (a). Parke B. — In Regina v. West all the Court decided was, that the property was not lost property. Pickering. In substance the jury find that both at and after the finding of the jury the prisoner believed he could trace the owner. The Court will not assume that the only facts proved at the trial are those stated in the case. Parke B. — The question is, whether you can support the conviction upon any facts after the finding of the jury. Jervis C. J. — It does seem to me that it was left to the jury to speculate upon what was in the mind of the man, without any facts to support their speculation. The finding does not raise the point, and the conviction must be quashed. Parke B. — The fourth question is not so answered as to raise the point. The other learned Judges concurred. Conviction quashed. (o) Ante, p. 402. 586 CROWN CASES RESERVED. 1855. REGINA V. COSMO W. GORDON. The defends The following case was stated for the opinion of the two brnk°/ ^ourt of Criminal Appeal by Mr. Justice Erle. rupts and This indictment was against the prisoner for felony partners) was indicted under 12 & 13 Vict. c. 106, s. 251, for not surrendering. Upon the evidence it appeared, and the jury found, that the bankrupts both left this kingdom before any proceedings in bankruptcy had been taken against them, believing that they should be made bank- rupts, and that they staid abroad with the intent to defraud their creditors by depriving them of their right to examine the bankrupts, and to make them responsible. On the trial, the proceedings in bankruptcy were put in, and it appeared that there were erasures and interlineations in the affidavit verifying the petition for adjudication. Held, that the presumption of law was, that the affidavit was in the same state as when it was sworn ; as to alter it after it was sworn would be an act of fraud and misconduct which would not be presumed. The petition in bankruptcy was allotted by ballot to Commissioner G., but the subse- quent proceedings were either before Commissioner H. or Commissioner F. Held, that they were not invalid on that account. The duplicate adjudication was, after the bankrupts had left the kingdom, left at their last usual place of business, and on the same day the property of the bankrupts was removed therefrom, and the place locked up by the messenger of the Court of Bankruptcy ; but the notice was left on the premises, and seen there two or three weeks afterwards. Subsequently the summons to surrender was left at the same place, which was unlocked for the purpose and then locked up again ; before the trial the place was searched, and neither adjudication nor notice was found ; but notice to produce them was served on the prisoner forty-eight hours before the trial. Held, that the duplicates of those documents were admissible in evidence. In the adjudication, and other proceedings previously to the advertisement in the Gazette, the bankrupts were described as of M. Lane and C. Lane, in the city of London, colonial brokers, and of W. Lane, in the county of Middlesex, distillers. In the adver- tisement in the Gazette the description was the same, except that W. Lane was said to be in the county of Essex. Held, that the notice in the Gazette was not insufficient on this account. The bankrupts did not surrender. The summons or notice to surrender was issued by Commissioner H., the proceedings having as before stated been allotted to Com- missioner G. Held, that this was no valid objection to the summons. The notice was to appear on one of two days, the first of which had expired before the summons was served. Held, that this was sufficient service, as the last of the two days was the day limited according to the statute for the surrender. The notice was to surrender before Commissioner G., but on the day limited for the surrender Commissioner G. did not sit, but Commissioner F. did. Held, that this formed no ground of objection, as one Commissioner could legally sit and act for another. There was no evidence that the prisoner had actual knowledge of the adjudication and notice to surrender ; but the jury found that he went abroad with the belief before stated, a.nd stayed abroad with the intent before stated. Held, that knowledge was not required by the statute, and that if the notice to surrender was duly served, this objec- tion could not prevail. This being a joint fiat against the prisoner and his partner, and only one duplicate adjudication and one duplicate notice to surrender having been served at the last place of business of the bankrupts : Held, by a majority of the Judges, that this service was insufficient; that a separate notice to surrender ought to have been left for each of tba bankrupts ; and that the conviction must therefore be quashed. CROWN CASES RESERVED. 587 in not surrendering as a bankrupt pursuant to 12 & 13 i855. Vict. c. 106, s. 251. -7 7~ ' ■""■^' ^ Gordon s The first count, after stating the bankruptcy in Case. detail of Davidson and Gordon, alleged that a dupli- cate of the adjudication was served upon Davidson and Gordon, by leaving the same at their usual and last known place of business. That on the 30th June the Court caused notice of the adjudication to be advertised in the Gazette, and appointed two public sittings for the bankrupts to surrender, namely the 7th July and 19th August. That the 19th day of August thereby became the day allowed to the bank- rupts for finishing their examination. That on the 26th July notice in writing of the adjudication, and of the said sittings, and of the day limited for such surrender, and allowed for finishing such examination, was left at the usual and last known place of business. And that on the said 19th of August the prisoner did not surrender. The 2nd count was the same, except that prisoner is charged with not attending to finish his last exami- nation on the day of surrender, namely 19th August. The 3rd count recites the proceedings in bank- ruptcy as before, and charges that prisoner did not surrender to the Court of Bankruptcy in London, although the Court of Bankruptcy held a silting for receiving such surrender. Fourth count, after reciting proceedings in bank- ruptcy, and that the I9th day of August was the day limited for their surrender to the Court of Bankruptcy, and that twelve at noon of that day was the day and hour allowed by the said Court for finishing their last examination, charges that prisoner on the said day so limited, &c., after notice given in the Gazette of the said adjudication of the said time being limited for the said surrender did not surrender himself to the said Court of Bankruptcy at any time on the said day. 588 CROWN CASES RESERVED. 1855. The prisoner was properly convicted, unless one of Gordon's ^^^ following objections should be found valid : — Case. 1. Upon the evidence it appeared that the bank- rupts left this kingdom on the 17th of June, believing that they should be made bankrupts, and that they stayed abroad with the intent to defraud their creditors, by depriving them of their right to examine the bankrupts and to make them responsible, and the jury must be taken to have found that this was so. The papers requisite to prove the bankruptcy were produced. On the petition there was an alteration in the description of Westham Lane, the place of the dis- tillery of the bankrupts, from Middlesex to Essex. On the depositions to support it there was the same alteration, and also the name of Davidson was interlined. On the adjudication there are alterations from Middlesex to Essex, from 20th to 21st June, from the name of Holroyd to the name of Fonhlanque, as Commissioners. But all these papers were produced, sealed with the seal of the Registrar of the Bankruptcy Court ; some of the alterations were attested by the initials of the Registrar, and there was evidence given in the course of the trial, after they had been read in evidence, which satisfied me that all the alterations were made while the papers were in the course of formation and before they were used as complete. The objection was that these papers were not admissible in evidence, and if admitted, were invalid by reason of the alterations. 2. Upon the petition it appeared that it was as- signed by ballot to Mr. Commissioner Goulburn. But the subsequent proceedings were either before Mr. Commissioner Holroyd or Mr. Commissioner Fonhlanque. CROWN CASES RESERVED. 589 The objection was that they were invalid on that 1855. account. 'r^T^T^.r bORDON S 3. The duplicate adjudication was left at the count- ^^®®- ing-house in Mincing Lane, being the usual and last known place of business of the bankrupts, on the 21st of June; all the papers and property of the bankrupts were removed therefrom and the place was locked up on behalf of the assignees on the same day ; but this paper was left and seen there a fortnight or three weeks after this removal. On the 26th July the summons to appear was left at the same counting- house, which was unlocked for the purpose and then locked up again. Before the trial the counting-house was searched and neither of these papers was found. Notice to produce these papers was served on the prisoner in prison, and the service must be taken to be forty-eight hours before the trial began. I admitted the duplicate originals of these papers to be read, on the ground that no notice to produce was necessary, and if it was that the search for the originals and the notice to produce were sufficient. The objection was that these documents were not admissible in evidence. 4. The Gazette stated that a petition for adjudi- cation in bankruptcy had been filed against Daniel Mitchell Davidson and Cosmo William Gordon, of Mincing Lane, and Cousins Lane, Upper Thames Street, in the city of London, Colonial brokers and metal agents, and of Westham Lane, in the county of Middlesex, distillers, dealers and chapmen, and that they having been declared bank- rupts, were thereby required to surrender themselves to Edward Goulburn Esq., one of her Majesty's Commissioners of the Court of Bankruptcy, on the 7th day of July next, at eleven- in the forenoon, and on the 19th day of August, at twelve at noon, at the Court of Bankruptcy in Basinghall Street, in 590 CROWN CASES RESERVED. 1855. the city of London, and make a full discovery, &c. Gordon's The former proceedings had described them in the ^^^^- same manner, except that We&tharn Lane was in them said to be in Essex and not in Middlesex. The objection was that the notice in the Gazette was insufficient on this account. 5. The Gazette required the surrender on two days as before stated. The summons, after reciting a petition and an adju- dication, stated that E. Holroyd, Commissioner, sum- moned the bankrupts personally to be and appear before Edward Goulburn, Sergeant-at-Law, at the Court of Bankruptcy in Basinghall Street, in the city of London, on the 7th day of July, 1854, at eleven, and on the 19th day of August, 1854, at twelve at noon, the last day named being the day limited for their surrender under the said petition, and they were there and then to be examined, &c. This summons was not served by leaving it at the counting-house in Mincing Lane till the 27th of July. The objection was that this service was insufficient, being after the 7th of July, one of the days appointed for surrendering, and also the Commissioner, Holroyd, had no authority to issue the summons, and that there- fore there was, in effect, no summons, and, therefore, no felony. 6. The memorandum that the bankrupts did not surrender on the 19th of August, stated that Mr. Com- missioner Fonhlanque sat as Commissioner, and that they did not surrender; the objection was that as Mr. Commissioner Goulhurn did not appear to have sat, the off"ence was not committed. 7. It appears that only one duplicate adjudication in bankruptcy, and only one duplicate summons to surrender was served, and the objection was that this was insufficient, there being a joint adjudication against two bankrupts. CROWN CASES RESERVED. 691 8. There was no evidence that the prisoner had 1855. actual knowledge of the adjudication and summons to Gordon's surrender. But the jury must be taken to have found Case. that he went abroad with the belief before stated, and stayed abroad with the intent before stated. The objection was, that the absence of evidence of actual knowledge of the contents of those documents or of the bankruptcy rendered the evidence insufficient to support a conviction. If the evidence is thought to be insufficiently stated, it is to be sent back for a further statement : the origi- nal documents in bankruptcy will be in Court for reference if necessary. I reserved these objections for the opinion of the Court of Appeal. If either is found to be valid and to defeat the conviction, a verdict of not guilty is to be entered. Otherwise the conviction to remain. W. Erle. This case was argued on the 10th November, 1855, before Jekvis C. J., Parke B., Erle J., Crompton J. and WiLLES J. Ballantine (with him Poland) appeared for the Crown. M. Chambers Q. C. (with him Parry) for the prisoner. Montague Chambers, for the prisoner. First. There were such alterations in the papers necessary to prove the bankruptcy as made them inadmissible. In the petition, West Ham Lane, originally alleged to be in Middlesex, was altered and described to be in Essex, and there was the same objection to the deposition verifying the petition. Jervis C. J. — My brother Erie has found, that the alterations were made whilst the papers were in the course of formation. The general rule is, that wher- ever it is an offence to make an alteration in a docu- 592 CROWN CASES RESERVED. 1855. ment, it is to be presumed that it was made so as not Gordon's *" constitute an ofFence. There is an exception as Case. to wills. Parke B. — The presumption is that the alteration , was made before the instrument was used. M. Chambers. It is true that the case finds, that these alterations were made before the documents were used as completed ; but it does not find that the alteration in the deposition was made before it was sworn. Secondly. The allotment of petitions is provided for by section 94 of the statute ; and when an allot- ment to a particular Commissioner has taken place, all the proceedings on that petition must be taken before him, unless the Lord Chancellor orders otherwise. Section 10 provides that the Commissioners shall sit day by day ; and section 12, that the Court shall have a primary, but limited jurisdiction. Jervis C. J. — Section 6 makes every Commissioner a Court. M. Chambers. That is only for the purpose of dis- pensing with the attendance of all the Commissioners in each case. I contend, that as soon as the petition was allotted to Commissioner Goulburn, he became the Court which alone had cognizance of the bank- ruptcy. Thirdly. The evidence of the duplicate adjudica- tion and summons having come to the knowledge of the bankrupt was insufiicient, and the duplicate ori- ginals ought not to have been received in evidence. Those documents were served at the place of business, after it had been placed in the custody of the mes- senger. The duplicate original of the summons was admitted on the ground that it was a notice, and that a notice to produce a notice is unnecessary ; but that proposition is not universally true ; Robinson v. Brown CROWN CASES RESERVED. 593 and another {a). Though treated as a notice by sec- 1855. tion 251, it is in fact a summons, and is headed as Gordon's one (b). It is not shown that the documents ever in Case. fact got into the possession of the bankrupt. Parke B. — The notice was not found where it was left, and the presumption of fact is, that as it only concerned the bankrupts the person who found it would give it to them, and not that it was stolen ; the use of the notice to produce was to shut out the pre- sumption that it was given back. M. Chambers. There was no sufficient search at the counting- bouse ; and no enquiry for the missing papers was made among the servants who cleaned out the place. Fourthly. The notice of the adjudication in the Gazette was insufficient. The description of the bank- rupt in the notice should be the same as in the previous proceedings, but there is a substantial difference. In the previous proceedings the bankrupts are described as of West Ham Lane, Essex, and in the Gazette they are described as of West Ham Lane, Middlesex. When the misdescription has been of a slighter character the commission has frequently been super- seded. Ex parte Beckwith et al. (c). Ex parte Marsden (d). Parke B. — There is no proof that there was no West Ham Lane, Middlesex. Jervis C. J. — How would it have been if the vice had been in the fiat? Until superseded it would have been good. An application to supersede for a misde- scription is very different from the present proceeding. M.Chambers. The misdescription is substantial. In Ex parte Beckwith it is said that a description which tends to create doubt and confusion in the mind of the (a) 3 C. B. 54. 1.6) See the notice, post, p. 602, n. (a), (c) X Glyn & Jameson, 20. (d) Cited 2 Madd. 13, n. (o) 594 CROWN CASES RESERVED. 1855. bankrupt cannot be treated as surplusage; here the 7rr~~T~ advertisement was of an adjudication of bankruptcy VlORDON S _ • Case. against persons carrying on business at a place where the bankrupts did not carry on business ; surely this is a misdescription tending to create doubt and con- fusion. Fifthly. The first part of the fifth objection has been anticipated in the second. The bankrupts were summoned by Commissioner Holroyd to appear before Commissioner Goulburn; but Commissioner IToZroyc? had no authority to issue that summons. The notice is also bad because it was not served till after the first of the two days appointed by the bankrupts to sur- render had elapsed. A bankrupt ought to have full notice and have all the time allowed him by law for surrendering. The notice here was to appear at a day which was past when the notice was left. To make a bankrupt liable to punishment for omitting to sur- render, the omission must be wilful. Ex parte Wood {a). Ex parte Bould (b). Sixthly. The sixth objection is that the bankrupt was summoned to appear before Commissioner Goul- burn at the Court of Bankruptcy on a day on which that Commissioner did not sit, and therefore the bank- rupt could not surrender before him ; but this objec- tion has been anticipated in my arguments as to the second. Seventhly. This being the case of a joint fiatand of a substituted service, the service of one duplicate adjudication and of one duplicate summons to sur- render was not sufficient. There ought to have been a separate copy of the adjudication and a separate copy of the summons to surrender left at the place of business for each bankrupt. One notice only being (a) 1 Atk. 221. (6) 2 Brown, 49- CROWN CASES RESERVED. 595 left, suppose one partner came in and finding the 1855. notice there took it away, the other partner might Gordon's never hear of the notice, much less have a knowledge ^^^®" of its contents. In criminal matters each person must be shown to have committed an offence before he is liable to be punished ; one partner cannot act for the other or render the other liable to punishment. If one partner, as I before suggested, took the one notice away, the other, knowing nothing about it, might be deprived of his right to dispute the adjudication by allowing the time limited to elapse ; Ex parte Cas- telli (a). Section 112 privileges a bankrupt from arrest in coming to surrender. Each bankrupt ought to be able to produce a summons to any officer who may attempt to arrest him, as his protection ; for the summons is the document on which the protection from arrest is indorsed by the Commissioner. Parke B If you can say that this summons is necessary as a protection to each of the bankrupts, it would be a strong argument to show that one is insufficient. M. Chambers. A blank form of protection from arrest is always indorsed upon the summons, and was so in this case. When joint fiats were permitted, there was no intention to interfere with the rights of the parties, but the object was to facilitate the disposi- tion of the property. Section 251 directs that the notice to surrender shall be served personally, or at the usual or last place of abode or business of the bankrupt, and where there is personal service or a service at the place of abode, a copy would be left with or for each bankrupt ; and when the service is at the place of business, it is quite as necessary to leave a copy for each. The word notice in the (a) 1 De G. Mac. & (5r. 437. VOL. I. V Y 596 CROWN CASES RESERVED. 1855. statute must be understood as " notices" where there Gordon's is more than one bankrupt ; Regina v. Justices of Case. Chesire (a) ; and this mode of reading the statute is warranted by the interpretation clause, section 276. Eighthly. Assuming that upon the evidence the bankrupts had no knowledge of the adjudication, their going away must be taken to be merely to avoid process. There is no finding by the jury that they had the criminal intent pointed out by section 251 of the statute ; namely, an intention to defraud, after knowledge of the bankruptcy. Reg. v. Hill (b) ; Meg. V. Hilton (c). Parke B Those cases were decided on the 6 Geo. 4, 0. 16, s. 112, which is not in the same terms as this section. An intention to defraud is not required by section 251. M. Chambers. The provisions in the old and new statutes are substantially the same, and in section 251 the words "with intent to defraud" override the whole section, Ballantine, for the Crown, was directed to confine his arguments to the seventh objection. One copy of the adjudication, and one notice to surrender, were suflEicient, and they are to be presumed, in the absence of evidence to the contrary, to have reached both the bankrupts. There was no necessity for a notice to produce the notice. Erle J It certainly was put in as a notice. I called it a summons, because it was so headed. Ballantine. The practice has been to draw up the notice as a summons ; but until after the bankrupt has sm-rendered it is no protection to him, and on his way to surrender he is protected without it. If, as suggested, one partner took the notice away and the (.0) U Ad. & Ell. 139. (S) 1 Car. & K. 168. (c) 2 Cox C. C. 318. CROWN CASES RESERVED. 597 other knew nothing about it, that fact would be a 185,). lawful impediment, a good excuse for not surrendering Gordon's within the meaning of section 251. ^^'^• No doubt if there is more than one bankrupt and they reside in separate abodes, a copy of the notice, if served personally or at the places of abode, must necessarily be served upon or left for each bankrupt; but the same necessity does not exist where the place of service is the joint place of business. Actual notice is not required by law ; nor has every possible means been afforded by the Legislature of giving the infor- mation to the bankrupt ; but the statute gives to the bankrupt a certain reasonable chance of learning the fact of the adjudication by requiring a service in one of the ways pointed out, and the statute does not even require that the notice shall be addressed to the bankrupt. Jervis C. J.— Surely it must be left for the bankrupt. Cresswell J — If the notice were left at the last place of abode of a bankrupt, would it be good if addressed to the new occupier? WiGHTMAN J. — Do you go the length of saying that one notice would be suflBcient if two persons who had never been partners had one place of business and were both adjudicated bankrupts ? JBallantine. A trader who, having committed an act of bankruptcy, keeps out of the way of receiving information, ought not to be able to say I am not guilty of a crime in not surrendering, because I have not had actual notice of the adjudication. Montagu Chambers replied. Jervis C. J As to seven of the eight objections which have been made we entertain no doubt ; those seven are the first six and the eighth objections. The seventh objection we will take time to consider. The Y Y 2 598 CROWN CASES RESERVED. 1855. first objection was that the proceedings in the bank- Gordon's ruptcy were inadmissible in evidence on account of Case. erasures and interlineations; and Mr. Chambers con- tends that the finding in the case that the alterations were made before the instruments were used as complete, does not apply to the affidavit of verifica- tion ; but independently from it appearing that the Judge who tried the case was satisfied from the evidence that the alterations had been made before the documents were used, the rule is clear that wherever an alteration in a document would involve a charge of fraud or misconduct, the presumption is against such fraud or misconduct having been com- mitted. We must therefore, until the contrary be proved, presume that the affidavit of verification when sworn was in the same state in which it was when produced. The only exception to this rule is in the case of wills ; it is therefore not necessary for us to consider whether the finding in the case that all the documents were altered before being used, applies to the affidavit of verification. As to the second objec- tion that each of the Commissioners, on the allotment of a petition to him, became a separate Court, and could alone deal with the case ; that is not, I think, a correct view of the 94th section. It is a mistake to suppose that the prdceedings would be void if the directions of that section were not observed, although persons might be liable to penalties for not complying with those directions. But there is no ground for saying that there is any such liability in this case. It is provided by section 6, that each Commissioner may sit and have the full powers of the Court. Section 19 gives the Lord Chancellor a power of changing the Commissioners; but that does not show that they cannot change duties amongst themselves w^ithout leave of the Lord Chancellor. The summons to surrender CROWN CASES RESERVED. 591) is in effect a summons to appear before the Comrais- 1855. sioner mentioned in it, or such other Commissioner as Gordon^" shall be sitting at the time appointed for surrendering. ^*^®- Attendance upon a summons before one of the Judges of the superior Courts at Westminster is not confined to the Judge who issues the summons. Thirdly, it is objected that the search for the duplicate adjudication and duplicate summons was not sufficient to enable secondary evidence to be given on the part of the prosecution. We need not consider whether a notice to produce was necessary, for notice to produce was given. The rule is, that the best evidence must be produced, and that rule has been complied with. Either the original document must be produced, or it must be proved that reasonable efforts to produce it have been made ; and it seems to me that the search made in this case was sufficient. The documents were left at the last known place of business of the bank- rupts ; search was made at that place and the docu- ments were not found. The presumption therefore is, either that the bankrupts have got them, or that they have got into the hands of some person to whom they are of no importance, and who therefore has destroyed them. If you do not find a document in the ordinary place of deposit, or in the hands of the person who has an interest in preserving it, it may be presumed to be lost. The fourth objection is, that there was a variance between the adjudication and the advertise- ment in the Gazette. It is argued that, because the bankrupts are described in the Gazette as of some place in London and of West Ham Lane, Middlesex, when in the previous proceedings and adjudication West Ham Lane is said to be in Essex, they had a right, as it were, to hold a Court in their own chamters abroad, and to supersede the proceedings in bankruptcy for the misdescription ; but the error is only a falsa 600 CROWN CASES RESERVED. 1855. demonstratio, which does no harm, and no one can Gordon's entertain any doubt but that the bankrupts well knew Case. who were meant by the description. The cases which have been cited of applications to supersede commis- sions, on the ground of mistake or misdescription, are governed by a different principle. The fifth objection is that the summons to surrender was insufficient, for two reasons : first, it is said that it was not a notice and did not operate as a notice, because it was issued by Commissioner Holroyd, when the proceedings in the bankruptcy were before Commissioner Goulburn. This has been disposed of already in considering the second objection. But it is further said not to be a good notice, because it was to appear on two days, the first of which had expired before the notice was served ; but looking at sections 104 and 251, it is clear that the bankrupt is to have notice to appear and dispute the adjudication, or surrender on the day limited for that purpose ; and the day limited is the last of the two days named in the notice. The sixth objection is, that Commissioner Goulburn was not sitting on the day limited for the surrender ; but this point has been disposed of in considering the second objection. The eighth objection is that the bankrupt had no knowledge of the proceedings, and that therefore there was no intent to defraud within the statute. The jury have found that the bankrupts went abroad, with the view of defrauding their creditors, by depriving the latter of the power of examining them and making them responsible. Knowledge is not required by the statute. If the notice to surrender was duly served (which point we shall not now dispose of), and the bankrupts did not surrender pursuant to it, the offence is committed. It is not necessary to decide whether the words " with intent to defraud," in section 251, override the entire section, for the fact of the bankrupts having absconded, CROWN CASES RESERVED. 601 with the intent stated in the case, and found by the 1855. jury, is quite sufficient to prove the intent to defraud. Gordon's The other learned Judges concurred. ^^^^• As to the first, second, third, fourth, fifth, sixth and eighth objections, Conviction affirmed. As to the seventh objection, Cur. adv. vult. It was subsequently directed that the seventh objection should be argued before all the Judges, and previously thereto the following case, embodying the seventh objection, was stated by Mr. Justice Erle. The indictment was for felony in not surrendering as a bankrupt pursuant to 12 & 13 Vict. c. 106, s. 251, and the prisoner was properly convicted, unless the following objection should be found valid. The prisoner and his partner Davidson were proved to have committed an act of bankruptcy on the 17th of June, 1854, by departing the realm with intent to defeat and delay their creditors, and also to have continued abroad long after the day limited for their surrender with the same intent. One paper containing a duplicate adjudication in bankruptcy was left at the counting-house in Mincing Lane, being the usual and last known place of business of the bankrupts, on the 21st June. All the papers and property of the bankrupts were removed there- from, and the place was locked up on behalf of the assignees on the same day, but this paper was left and seen there a fortnight or three weeks after this removal. On the 26th oi July one other paper containing notice of the days limited for surrender and for finishing the examination was proved to have been 602 CROWN CASES RESERVED. 1855. left at the same counting-house, which was unlocked Gordon's ^^^ ^^^^ purpose, and then locked up again. Case. A copy of the paper containing the notice last mentioned is annexed. The objection was, that the requirement contained in s. 25 1 was not proved to have been complied with by the evidence above mentioned ; that, as the adju- dication in bankruptcy was against two jointly, two duplicate adjudications and two. papers of notice ought to have been left at the counting-house of the two bankrupts, and as only one paper of each sort was left the proof of the felony failed. The indictment and the proceedings in bankruptcy are in Court to be referred to if necessary. The question is, whether this objection is valid. W. Erle (a). (a) The following is a copy of the summons or notice to surren- der annexed to the case :-r " THE BANKRUPT LAW CONSOLI- DATION ACT, 1849. " Whereas a petition for adjudi- cation of bankruptcy having been filed in her Majesty's Court of Bankruptcy in London, on the 20th day of June, 1854, against you Daniel Mitchell Davidson and Cosmo William Gordon, of Mincing Lane and of Covsin Lane, Upper Thames Street, in the city of London, colo- nial brokers and metal agents, and of West Ham Lane, in the county of Essex, distillers, dealers and chapmen, and co-partners in trade, and you having been duly declared bankrupts, I the undersigned, a Commissioner of her Majesty's said Court of Bankruptcy, do hereby summon and require you the said Daniel Mitchell Davidson and Cosmo William Gordon per- sonally to be and appear before Edward Goulbum, Sergeant-at- law, at the Court of Bankruptcy, in Basinghall Street, in the city of London, on the 7th day of July, 1854, at twelve o'clock in the fore- noon precisely, and on the 19th day of August, 1854, at twelve o'clock at noon precisely, the last named day being the day limited for your surrender under the said petition, and you are then and there to be examined, and to make a full and true discovery and dis- closure of all your estates and effects according to the direction of the statute now in force con- cerning bankrupts, and herein fail not at your peril. " Given under my hand this 25th day oi July, 1854. " E. Holroyd, Commissioner. " To Daniel Mitchell Davidson and Cosmo William Gordon, the above-named bankrupts." The seal of the Court of Bank- ruptcy and the seal of the Regis- trar were aflixed to the notice. On CROWN CASES RESERVED. 603 The case as to this objection was argued on the ^855. 30th Novemher, 1855, before Lord Campbell C. J., Gordon's Jervis C. J., Parke B., Alderson B., Wightman ^*^*' J., Cresswell J., Erle J., Platt B., Williams J., Crompton J. and Willes J. Bramwell Q. C. (with him Poland) appeared for the Crown ; and Montagu Chambers, Q. C. (with him O. B. C. Harrison) for the prisoner. Montague Chambers^ for the prisoner, urged the same arguments as on the previous hearing of the case. Bramwell Q. C. for the Crown, used the same arguments as had been submitted to the Court by Ballantine on the previous occasion, and contended that the literal requisitions of the act had been fulfilled, and that the defendant could not say that a notice had not been left at his last place of business as required by the statute. Chambers Q. C. replied. Lord Campbell C. J. — I am of opinion that the objection taken is fatal. ' The point is a short one ; and I have but little to add to what has been said in the course of the argument. By the 251st section of the Bankrupt Law Consolidation Act, a felony is created punishable with transportation for life ; and the offence is committed by any person adjudged bankrupt not surrendering himself upon the day limited, for his surrender, but it is upon the fulfilment of certain conditions, one of which conditions is very carefully worded thus ; the offence cannot be com- mitted until " after notice thereof in writing to be served upon him personally, or left at the usual, or last known place of abode or business of such person, or personal notice in case such person be then in prison." Now the question is, there having been a joint adjudi- the back of this document was mpt's protection from arrest, printed a blank form for a bank- 604 CROWN CASES RESERVED. 1855. cation against two bankrupts, both having the same Gordon's P^^ce of business, one notice of the day limited for the Case. surrender left at that place of business is sufficient service on both the bankrupts? I- am of opinion, that there ought to have been a separate and distinct notice for each. With respect to personal service, it is quite clear that when that mode of service is resorted to, there must be a separate notice served on each bank- rupt, and so in service at the usual or last place of abode, it must be a service at the last place of abode of each, and the same construction, I think, applies to the remaining mode of service. It is of great importance that before such an offence as that which is created by this statute should be con- summated, the best chance that the circumstances will allow should be given that the party to be charged w^ith such offence should receive the notice directed by the statute to be given; and I think that the legisla- ture intended that where there is more than one bank- rupt, each should have a notice, although they may all have one and the same place of business. This might easily be done, and if a contrary construction be put upon the statute great inconvenience may arise. If one of several bankrupts comes to the place of busi- ness, and, finding a notice there, carries it away, he leaves the others without the means of knowing that such a notice has ever been left, without the^means of obtaining that information which the legislature in- tended they should have. Each bankrupt, by having possession of a notice, would have the opportunity of perusing it, and consulting his legal advisers upon it ; it serves to remind him of the day and hour limited for his surrender, and that he incurs the penalty of felony by not surrendering. It seems to me that it was the intention of the legis- lature that in cases where the adjudication is against CROWN CASES RESERVED. 605 two or more persons there should be a separate and 1855. distinct notice to each of the bankrupts. Gordon's Jervis C. J.— I do not concur with the Lord Chief Case. Justice. I think the notice given was suflBcient; but as I beh'eve the majority of the Judges are against me, the conviction will be quashed. Parke B — I entirely concur with the Lord Chief Justice of the Queen's Bench for the reasons which he has given. The legislature meant to give the best chance of getting the notice to each bankrupt. This notice of the day limited for the surrender is the sum- mons upon which the statute directs the protection to be indorsed. Aldehson B. — I am of the same opinion with the majority of the Judges. WiGHTMAN J. — I am also of the same opinion. Cresswell J. — I concur with my Lord Campbell and the majority, and for the same reasons. £rle J. concurred with the Lord Chief Justice of the Common Pleas in thinking the conviction good. If the bankrupts do not abscond, one piece of paper would give them all notice ; if they do abscond, any number of notices would be of no use. Platt B. — I think the statute has been complied with, and I do not see what reason there can be for two notices. Here there are two bankrupts having one place of business, and a joint notice to both left at that place of business seems to me to be sufficient. Williams J. — I agree with the majority of the Judges. Crompton J I also agree with the majority, and think the conviction bad. Willes J.— I think that the conviction ought to be affirmed. By sect. 251, the notice to be given to a bankrupt in prison need not be in writing. I do not 606 CROWN CASES RESERVED. 1855. think that the provision that the notice may be served Gordon's personally limits the effect of the following words of the section as to the other modes of service. Conviction quashed. 1856. REGINA V. HENRY SHEPHERD. The prisoner was con- victed on an indictment charging him in one count (under sect. 26 of 7 Wm. 4 & 1 Vict. c. 36) The following case was reserved for the considera- tion of the Court of Criminal Appeal by Mr. Baron Alderson. Prisoner was indicted for stealing, he being a sub-sorter at the General Post Office, a letter containing a sovereign and two shillings. It appeared that the with stealing Post Office authorities, entertaining suspicions of the ■ ■ prisoner, had caused to be made up a letter directed for Mr. T. Higgins, addressed and enclosed therein the money in question. The letter had on it the usual postage stamp. Mr. Playle, an inspector, accordingly having sealed up this letter, delivered it in at the window in the outer hall of the General Post Office in St. Martin' s-le-Grand, personally to Mr. Gardiner, another inspector, who received it and handed it to Willis C7are, another inspector. Willis Clare, having contammg raovLej, and in another count with a simple larceny of the money. It appeared that suspi- cion being entertained against the prisoner who was a sub-sorter in the employ of the General Post OiBce, the Post Office authorities made up a letter and inclosed in it a sovereign and two shillings, and put on the letter the usual postage stamp. The ordinary course of posting a letter at the outer hall of the General Post Office is by placing it in the receiving box ; but this letter an inspector delivered in at the window in the outer hall to another inspector, who handed it to a third, who, after locking it up for the night, handed it to a sorter, who placed it amongst the letters which it was the prisoner's duty to sort. The prisoner stole the letter and the money. Held, that the prisoner was not rightly convicted of stealing a post letter containing money ; and that the veiidict must be confined to the count for simple larceny. CROWN CASES RESERVED. 607 1856. received the letter from Gardiner, locked it up for the night in an iron chest for safe keeping, and on the following morning handed it to a sorter of the name herd''s o^ Scales, with directions to him to place it with the ^^^^" other letters which, in the due course of office, the prisoner would have to take and sort and deliver over to Willis Clare himself in the Letter Carriers' Office. Scales accordingly, having thus received the letter from Mr. Clare, took an opportunity when the prisoner did not observe him of taking up some letters which the prisoner had to sort, and then taking the letter in question out of his pocket mixed it with them, and placed the whole, including this letter, on the prisoner's seat, and after having done so directed the prisoner, who had sorted them, to take up the letters to Mr. Clare's, office in due course. During this interval the prisoner, either in sorting the letters so placed on his seat by Scales, or in taking the letters up to Mr. Clares office, opened and secreted the letter in question, the marked money being found upon him when he was searched in Mr. Clare's office. It appeared that, in the ordinary course of posting a letter at the outer hall of the General Post Office, Mr. Playle would have placed it in the receiving box in the outer hall, instead of delivering it to Mr. Gardiner personally at the window. The question upon these facts was, whether this amounted to stealing a post letter (a) or only to a larceny of the money in question, (a) Sect. 26 of 7 Wm. 4 & 1 Vict. either be transported beyond the c. 36, on which the first count of seas for the term of seven years or the indictment was founded, enacts be imprisoned for any term not " that every person employed under exceeding three years ; and if any the Post Oiiice who shall steal or such post letter so stolen or em- shall for any purpose whatsoever bezzled, secreted or destroyed, shall embezzle, secrete or destroy a post contain ihetem any chattel or money letter shall in England and Ireland whatsoever, or any valuable secu- be guilty of felony, and in Scoitarf rity, every such offender shall be of a high crime and offence, and transported beyond the seas for shall at the discretion of the Court life." 608 CROWN CASES RESERVED. 1856. and the following cases were cited : Rex v. Gardiner Shep- (1 Carrington and Kirwan, 628) ; Rex v. Youvg (1 H^«»'s Denison C. C. 194), and Rex v. Rathbone in a note to that case. I thought the last case was almost precisely in point, but directed the prisoneK to be convicted of the whole indictment, reserving the question whether the verdict should not have been confined to the count for the larceny alone, and respited the judgment for the purpose of consulting the Judges thereon, and I request their opinion accordingly. E. H. Alderson. This case was argued on 19th January, 1856, before Pollock C. B., Alderson B., Cresswell J., Williams J. and Willes J. Clarkson appeared for the Crown, and Metcalfe for the prisoner. Metcalfe, for the prisoner. Regina v. Rathbone (a) is precisely in point, and the decision governs this case. There an assistant inspector wrote a letter, and having enclosed in it a marked sovereign, sealed the letter, placed it among a number of letters which the prisoner (a letter carrier) was sorting, and the prisoner stole it ; but upon his being indicted for stealing a post letter, it was held that he could not be convicted of that offence, the ground of the decision being that the statute only applied to letters put into the post in the ordinary way. The only difference between that case and the present is, that in Regina v. Rathbone the assistant inspector, who wrote the letter, placed it himself with letters which the prisoner was sorting ; and here one inspector went through the farce of handing it to another inspector through the window, (a) 2 Moo. C. C. 242 ; S. C. Carr. & Marsh. 220. Case. CROWN CASES RESERVED. 609 and that inspector locked it up for the night, and then 1856. handed it to a sorter, who placed it amongst the ~shbp^ prisoner's letters. The letter never passed through herd's the post in the ordinary way. Clarkson, for the Crown. The Post OflSce autho- rities consider this case of much importance. Reg. v. Young (a) decided that a fictitious or trap-letter was a post letter within the statute. In that case the, letter was dropped into the letter box of the receiving house ; here it was put through the window ; and the real question is, whether a letter put in at the window by one ofiicer and received by another is a letter posted so as to make it a post letter ? Alderson B This letter was not posted in the ordinary way ; it was much the same as though the man had climbed through the window with the letter in his pocket. Clarkson. There was a case tried at Winchester before Mr. Baron Martin, which in its facts was similar to this, and the learned Judge was of opinion that the letter was a post letter within the meaning of the statute, and the prisoner was convicted (&). Cresswell J. — Suppose that Playle had taken the letter in his pocket and given it to Gardiner, would that have done ? Clarkson. I must go that length. The question is important in this respect, that the letters in the receiving offices in London are gathered in bags and brought to the Post Office in those bags, and are there sorted, many of them never passing through a letter box ; and numbers of letters are written in the Post Office and never put in the letter box at all. Then, are such letters post letters ? The interpretation (a) 1 Den. C. C. 194. Counsel, who referred to this sup- (6) Neither the date or name of posed decision on the instructions this case was given by the learned of the solicitor to the Post Office. 610 CROWN CASES RESERVED. 1856. clause, section 47, says, " the term post letter shall Shep- mean any letter or packet transmitted by the post 'case.^ under the authority of the Postmaster General ; and shall be deemed a post letter from the time of its being delivered to a post office to the time of its being delivered to the person toVhom it is addressed ; and the delivery to a letter carrier or other person authorized to receive letters for the post shall be a delivery to the Post Office." Cresswell J. — Is there any evidence that Gardiner was authorized to receive paid letters at the window? Clarkson. What the inspectors did in this case was done under the authority of the Postmaster General, and although the letter was not intended to be delivered in Meg. v. Young, Parke B. said, that whether a letter could be delivered or not was beside the question. Metcalfe, in reply. The letter never was out of the manual possession of the persons who concocted the scheme, and never was received by any body as a post letter. Williams J.— It would make no difference that it was received irregularly if it was received officially. Metcalfe. No ; but this letter never was received officially. Pollock C. B. — I think this case is governed by Reg. V. Rathbone. It differs from that case only in one circumstance. In Reg. v. Rathbone, the letter was sealed and marked as if it had been put in the post in the regular way and placed among a number of letters which the prisoner was sorting. Here the letter was put in through the window by one inspector, received by anoth^ inspector, and passed by him to a third, who after locking it up for the night delivered it to a sorter, with instructions to place it with those which the prisoner had to sort. We are not now called upon CROWN CASES RESERVED. 61 to say whether the letter would have been a post 1856. letter within the meaning of the act if it had been Shep- thrown into the receiving box, and afterwards taken "c^se ^ out and placed amongst the prisoner's letters ; perhaps it would, but that case is not before us. What was done in this case was done merely to get rid of the effect of the decision in Reg. v. Rathbone ; but the person who first received the letter was not entitled to receive it, and he handed it to a person who was not entitled to take it ; in fact no one received the letter who was authorized so to do. Alderson B. — I am of the same opinion. This case is not distinguishable from Reg. v. Rathbone, which was decided by the fifteen Judges. Cresswell J. — I am of the same opinion. There is nothing less desirable than fine and subtle dis- tinctions ; and I am unable to see any substantial distinction between Reg. v. Rathbone and this case. Williams J. — I also think that we are governed by the decision in Reg. v. Rathbone; although I do not go to the full extent of adopting all that my brother Parke said in that case. WiLLES J. — I reluctantly yield to the authority of the decision in Reg. v. Rathbone, but I think that when it had once been held that trap-letters were within the statute, it might have been better to have decided otherwise ; but Reg. v. Rathbone seems to decide that the statute only applies to letters put into the post in the ordinary way ; the letter in this case was not put into the post in the ordinary way, nor does it appear that any person who received it was justified in receiving it. Conviction on the count for stealing a post letter quashed. VOL. I. z z 612 CROWN CASES RESERVED. 1856. REGINA V. JOSEPH AUSTIN and JOHN TURNER. The pri- soners were convicted of larceny. On the trial the prosecu- tor not being in attend- ance, his deposition (which had been duly taken before the commit- ting magis- trate) was received in evidence, it appearing that he was not absent from an in- tention to defeat jus- tice, but that being a foreigner, who, at the time the larceny was committed, was serving on board a foreign vessel, he had returned to his own country, and was, at the time of the trial, resid- ing abroad. Held, that the deposi- tion was in- admissible. The following case was stated for the opinion of the Court of Criminal Appeal by W. H. Bodkin Esq., acting as Assistant Judge at the Middlesex Sessions. Joseph Austin and John Turner were tried before me, acting as Assistant Judge, at a Sessions for the coonty of Middlesex, on the 14th day of August, 1855, for stealing various articles, the property of William Doodt. The charge was fully established against them ; they were found guilty and sentenced to penal servitude for six years. They were ordered to remain in prison ; but the execution of the judgment was respited until the opinion of the Criminal Court of Appeal could be obtained upon the following facts : William Doodt, not being in attendance to prove that the stolen property was rightly stated to belong to him, it was proposed to read the deposition taken before the committing magistrate as evidence of that fact. The deposition had been duly taken in the presence of the prisoners, who had the opportunity of cross- examination, and it was satisfactorily proved that William. Doodt was not absent with any intention of defeating justice; but that, being a foreigner, serving on board a foreign vessel at the time the property was stolen, he had, since the committal of the prisoners, returned to his own country, and at the time of the trial was residing in a foreign kingdom. It was con- tended that, although this cause of absence was not Case. CROWN CASES RESERVED. 613 within the provisions of the 11 & 12 Vict. c. 2, s. 17, 1856. the above facts made the deposition receivable, inde- Austin's pendently of that statute ; and, considering it desirable to have the point settled, I received the evidence. I have now to submit to the Justices of either Bench and Barons of the Exchequer whether such reception was right. W. H. Bodkin, This case was argued on the 24th of November, 1855, before Jervis C. J., Parke B., Wightman J., Cresswell J. and Willes J. ; but the arguments not being concluded, it was re-argued (by the same Counsel) on the 19th of January, 1856, before Pol- lock C. B., Alderson B., Coleridge J., Williams J. and Willes J. ilfefcaZ/e, for the prisoner. Section 17 of the statute 11 & 12 Yict. c. 42 limits the admissibility of depo- sitions to two cases, namely where the witness is either dead or so ill as not to be able to travel ; at all events the deposition in this case was not admissible by virtue of the statute, and independently of the statute it would not have been admissible at common law. He cited Rex v. Savage (a), Regina v. Hagan {b). Caarten, for the Crown. The deposition was idmissible at common law. Previously to the statute depositions were admissible when the witness who made them was dead, or insane without hope of recovery, or personally disabled from attending, or was sent out of the way by the prisoner, or by some one on his behalf, and a witness who is out of the jurisdiction, and cannot be compelled to attend by process of subpoena or otherwise, may for the purposes of the trial be considered as dead in law ; that would (a) 5 Car. & P. 143. 1,6) 8 Car. & P. 167. zz 2 614 CROWN CASES RESERVED. 1856. only be carrying out the principle that the best Austin's evidence of which the case is capable must be produced. ^^^^' Alderson B, — There is nothing in this case to show that the witness would not have attended if he had been asked, or that any attempt was made to bring him, and if deposition? under such circum- stances were received a precedent would be established of frightful consequences to the public, and a witness by merely keeping away would be able to deprive the prisoner of the power of cross-examination. Caarten. There is no case directly in point, but there is no decision the other way. Pollock C. B. — It is contrary to the universally received practice. Caarten referred to 1 Hale P. C. 305 (a) ; 2 Hale P. a 62 ; 1 Chitt. a L. 586 ; Godholt, 326 (A) ; Lord Aiiglesea v. Lord Altham (c) ; R. v. Hagan (d) ; Boyle v. Wiseman (e). Pollock C. B.-^We are all of opinion that the deposition was inadmissible. Section 17 of 11 & 12 Vict. c. 42 enumerates the cases in which the depo- sitions of persons not in attendance at the trial may be read in evidence, and this is not one of those cases. Independently of the statute the reception of the deposition in this case was against the universal practice, and we have a decided case to confirm that practice. Coleridge J. — I must not be taken as expressing an opinion that the statute limits the admissibility of (a) In the passage referred to, (6) It was there said hy the after stating that depositions taken Court, that " if the party cannot under 1 & 2 P. & ilf. c. 14, may be find a witness, then he is as it read in evidence, if the informant were dead unto him." But see be dead or not able to travel, it is Sir Francis Fortescue and Cooke's said, " Yea, by some opinion, if he case, Godbolt, 193. were bound over and appear not, {") 2 Holt Rep. 736. they may be read, wMcli seems to (d) 8 Car. & P. 167. he questionable." {e) 10 Exch. 647. CROWN CASES RESERVED, Gil depositions to the cases therein enumerated, and I 1856. do not think that the Lord Chief Baron intended Austin's to be so understood. It is quite possible that cases ^^^®- may occur in which depositions would be receivable in evidence under the old rule and independently of the statute ; in this case however it is consistent with what appears that the attendance of the witness might have been obtained, and it is not shown that anything was done *by writing or otherwise to procure his attendance. WiLLES J. — We must look for a broader proposition than that the statute limits the admissibility of a deposition where the witness is absent at the trial. If the witness is dead or insane, or unable to travel, or is kept away by the prisoner, you cannot have his oral testimony, and his deposition can be used as evidence ; but it cannot be so used unless it is made quite clear that the oral testimony cannot be obtained. Alderson B. intimated that if the admissibility of depositions was extended beyond the cases pro- vided for by the statute, the rule ought to be minutely and rigidly limited ; as it would equally apply to depositions taken before a coroner in the prisoner's absence, and without any opportunity of cross-examination having been afforded. Conviction quashed. 616 CROWN CASES RESERVED. 1856. The prisoner was con- victed of larceny. It appeared by the evidence that the pro- secutor, in the hearing of the pri- soner, told bis servant that he must go to S. and pay him money, upon which the prisoner offered to take it, falsely stating that he lived only six doors from S. This state- ment induced the prose- cutor to deliver the money to the prisoner to carry to S. ; but the prisoner, instead of carrying the money to S., converted it to his own use. The gd^.)^ af^ ^f'^ REGINA V. HENRY BROWN. The following case was reserved for the opinion of the Court of Criminal Appeal by the Recorder of London. At a General Session of Gaol Delivery holden for the jurisdiction of the Central Criminal Court on the 17th day of November, 1855, Henry Brown was tried and found guilty before me of stealing money upon evidence which, as far as material to the present case, is hereinafter set forth. That of the prosecutor was as follows : I am a licensed victualler. On the 31st October last, he (prisoner) was at my house ; I owed some money to the poor rate collector (Mr. Staines). I said to my servant in the prisoner's hearing, '* George, you must go to Mr. Staines, and pay him this money." That thereupon the prisoner said, "I will take it for you," adding that he lived only six doors from the collector. That, induced by the offer of the prisoner, he, the prosecutor, delivered to him money to the amount of 11. 12s. to carry to the poor rate collector in discharge of the said debt. The other evidence showed that the prisoner's statement to the prosecutor was in all its parts false, and that he had converted this money to his own use. jury, on finding their verdict of guilty, stated that their verdict was grounded on the belief that the prisoner had obtained the money by a trick, intending at the time to appropriate it to his own use. Held, that the conviction was right. Case. CROWN CASES RESERVED. 617 Upon the trial it was objected, on behalf of the 1856. prisoner, that those facts did not amount to larceny. Brown's that the prosecutor had parted both with possession and the property of and in the monies, the subject of the indictment, and that the prisoner was a bailee, and the case of The Queen v, Thomas (a) was cited in support of this proposition. I told the jury that the act of the prisoner amounted to larceny if they should be of opinion that he had obtained the money by a trick, and meaning at the time to appropriate it to himself; but that if he took it from prosecutor bona fide, and afterwards converted it to his own use, it was not larceny, and I so directed them. The jury, in finding the prisoner guilty, stated that their verdict was grounded on their belief that the prisoner had obtained the money by a trick, intending at the time to appropriate it to his own use. Elntertaining doubts as to the propriety of my ruling, I have to request the judgment of the Court for the Consideration of Crown Cases, whether the prisoner has been properly convicted of larceny ; and in order that the same may be taken I have respited judgment upon the prisoner who stands committed to the gaol of Newgate, awaiting the deter- mination of this case. J. Stuart Worthy, Recorder. This case was argued on 26th January, 1856, before Pollock C. B., Coleridge J., Cresswell J., Williams J., and Martin B. Payne appeared for the Crown. No Counsel ap- peared for the prisoner. Pollock C. B. — Can this case be distinguished from Major Semple's case (h) 1 I think it cannot. (a) 9 Car. & P. 741. 0>) \ Leach, 420. Case. 618 CROWN CASES RESERVED, 1856. Payne. Fraud destroys the bailment. In this case Bkown's the bailment was destroyed by the fraud of the pri- soner. The jury have found that the prisoner obtained the money by a trick, intending at the time to appro- priate it to his own use. That being so, the delivery of the money by the prosecutor to the prisoner to carry to the poor rate collector, did not change the property, nor did it constructively change the posses- sion He was then stopped by the Court. Pollock C.B. — The conviction must be affirmed (a). The other learned Judges concurred. Conviction affirmed. (a) Pollock C. B. said there devices) managed to obtain money was a case, which he had not seen belonging to the bank ; and Lord reported, tried before Lord Ellen- Ellenborough held that he was borough, in which a banker's clerk guilty of stealing, saying that the persuaded customers at the bank machinery by which a man gets where he was employed to allow the property of another out of his him to place money of his to their possession makes no difference in accounts, and thereby (and by other the offence. CROWN CASES RESERVED. 619 REGINA V. JAMES JUSSUP. 1856. The following case was stated for the opinion of The prisoner,- the Court of Criminal Appeal by the Recorder of fnTmiUtfa Canterbury, • regiment _,, ,^ assembled I he prisoner was tried and convicted before me at for the pur- the Quarter Sessions for the city of Canterbury, holden P°ereidr"^ on the 31st day of December 1855, upon an indict- and therefore "' '1 Bubiect to the ment lor a misdemeanor, which contained three Mutiny Act, counts. The first count was framed upon that portion ^ be attested of the 57th section of the Mutiny Act, 18 & 19 Vict, heforea II L • u • deputy-heu. c. 11., which provides that any recruit who shall tenant, in designedly make any false representation of any par- quertions ticular contained in the oaths and certificates in the contained in . , J , , . , , n ... the form ot sctiedule to this act annexed, before the justice at the attestations time of his attestation, and shall obtain any enlisting ^"'lu^teers money or bounty for entering into her Majesty's issued by the • I 11 1 1 1 .,«,.. '' •' War Office, service, shall be deemed guilty ot obtaining money said, that he under false pretences, within the true intent and w"°onor meaning of the 7 & 8 Geo. 4. c. 29. The second had been en- count was framed on the statute 7 & 8 Geo. 4. c. 29., other corps of and charged in substance that James Jussvp, being ^'^J*j^g ^"j a recruit, and before being attested to serve as a not belong volunteer in the Kent Artillery Militia, unlawfully, served in her knowingly, and designedly, did falsely pretend to ^^•'^f^here- James O'JVeill, that he, Jussvp, had not been enrolled as in truth in any other corps of mih'tia, by means of which false ouslybeen pretence he obtained from O'Neill the sum of ten enrolled in r _ ^ another corps shillings, the property of O'Neill, with intent to de- of militia. ^ ^ ^ -^ He was then sworn and received the bounty money. Held, that he could not be convicted upon an indictment framed under section 57 of the Mutiny Act, IS & 19 Vict. c. 11., as the forms in the schedule to that act contained no such question as had been put to the prisoner respecting his previous enrolment in the mihtia ; and as his negative answer to the question whether he had served in the army could not be considered wilfully false. VOL. I. AAA 620 CROWN CASES RESERVED. 1856. Jussup's Case. fraud, whereas, Jussup had prior to the making of the said false pretence been enrolled in the West Kent Militia. The 3rd count was similar to the 2nd, except in stating the false pretence to have been made to John Henry Hay Ruxton. Upon the part of the prosecu- tion a printed form supplied by the War Office, and headed *' Attestations for militia volunteers" was proved and read. It contained several questions, all of which were asked of the prisoner at the time of his enlistment, with his answers. A copy of the form is annexed to the case (a), with the answers of the pri- (a) The following is a copy of the form referred to : — ATTESTATIONS FOR MILITIA VOLUNTEEKS. Qaestion 1. What is your name? Answer. James Jussup. 2. In what parish and in or near what town, and in what county were you born ? In the parish of St. Mary's in or near the town of Dover in the county of Kent. 3. Where do you now reside ? In the parish of St. Mary's in or near the town of Dover in the county of Kent. 4. Where have you resided for the last twelvemonth ? In the parish of St. Mary's in or near the town of Dover in the county of Kent. 5. What is your age? Twenty- five years three months. 6. What is your trade or calling ? Brick- layer. 7. Are you an apprentice ? No. 8. In whose employ are you? Mr. John Hopper, builder, in or near the town of Dover in the county of Kent. 9. What is the name and residence of your former master? Mr. John Stiff, builder, in or near the town of Dover in the county of Kent. 10. Are you sin- gle, married, or a widower ? Single. 11. If married or a widower, how many children have you under fourteen years of age ? None. 12. Are you ruptured or lame, have you ever been subject to fits, or have you any disability or disorder which impedes the free use of your limbs, or unfits you for ordinary labour? No. 13. Are you willing to be attested to serve as a volun- teer for the militia for the county of Kent for the term of five years, provided her Majesty should so long require your services ? Yes. 14. Do you belong to or have you been enrolled in or rejected by any other corps of militia, or" do you belong to her Majesty's army or to the marines, ordnance or navy, or to the forces of the East India Company ? No. 15. Have you ever served in or been rejected by the army, marines, ordnance or navy, or the forces of the East India Company, or are you in re- ceipt of a pension for any such service ? * No. * If the volunteer has served as above, he is to state the particulars of his former service and the cause of his disRharge, and is to produce the certificate of his discharge if he has it with him. If in receipt of pension, he must produce an authority for enlisting from the staff officer of pensioners by whom he is paid. CROWN CASES RESERVED. 621 soner to the questions numbered 14 and 15, which 1856. questions and answers alone were material. Question jussup's 14 is, " Do you belong to, or have you been enrolled ^^^®- in, or rejected by, any other corps of militia? or do you belong to her Majesty's army ? or the marines, ordnance or navy ? or to the forces of the JBast India Company f" Answer. " No." Question 15 is, " Have you ever served in, or been rejected by, the army, marines, ordnance or navy, or the forces of the JEast India Company? or are you in receipt of a pension for any such service?" Answer. "No." The prisoner upon the 2nd of November 1855, when brought before the deputy-lieutenant, to be attested as a recruit for the Kent Artillery Militia, gave those answers, and aiBxed his signature to the form in the presence of Serjeant James O'Neill, who was the re- cruiting Serjeant, and who paid to the prisoner ten shillings as enlisting money, believing his answers to questions 14 and 15 to be true. At the time of the prisoner's enlistment, the Kent Artillery Militia whs assembled for the purpose of being trained and exer- cised. The form was duly signed and completed in all respects by the proper parties to it, and the par- ticulars disclosed upon the face of it were filled in. To prove the falsehood of the prisoner's representation, it was shown that prior to the month of May 1853 he had been enrolled in, and served as, a private in the West Kent Militia, and was discharged from that regiment in that month. The jury found the prisoner guilty, and I ordered him to be imprisoned for three calendar months, and to be kept to hard labour ; but I respited the execu- tion of the judgment. The prisoner remains in prison. He was undefended. Upon reference to the questions to be put to a recruit on enlisting, set out in the schedule to the Mutiny Act, 11 & 12 Vict. c. 11., A A A 2 622 CROWN CASES RESERVED. 1856. which appear to be coutinued, though not printed in jBssup.g each subsequent annual Mutiny Act, including the ^'ase. act 18 & 19 Vict, c, 11., there are no questions similar to those numbered 14 and 15 in the form used from the War Office on an enlistment. I was informed that false answers to questions numbered 14 and 15 in the War Office form, were frequently given by persons who had served in the militia, and entertain- ing doubts whether, in question 14 in the schedule to the act 11 & 12 Vict. c. 11., the militia are included in the term " army," I humbly ask the opinion of the justices of either Bench, and of the Barons of the Exchequer : 1. Whether the prisoner having obtained enlisting money by stating that he had not been enrolled in any corps of militia, and had not ever served in the army, when in truth he had been en- rolled and had served in a militia regiment, committed an offence within the provisions of section 57 of the Mutiny Act, 18 & 19 Vict. c. 11. 2. If he did not commit an offence within the Mutiny Act, whether he was righfuUy convicted upon either the 2nd or 3rd counts of the indictment? This case was argued on 26th January, 1856, before Pollock C. B., Coleridge J., Cresswell J., Williams J. and Martin B. F. Russell appeared for the Crown ; no Counsel appeared for the prisoner. F. Russell, for the Crown. The first question arises upon the first count, and is, whether the pri- soner has committed an offence within the provisions of sect. 57 of the Mutiny Act, 18 & 19 Vict. c. 11. That section provides that any recruit who shall designedly make any false representation of any par- ticular contained in the oaths and certificates in the schedule to this Act annexed, before the justice at CROWN CASES RESERVED. 62 the time of his attestation, and shall obtain anv enlist- 1856. ing money or bounty for entering into her Majesty's j^sgup's service, or any other money, shall be deemed guilty of ^^^*- obtaining money under false pretences within the true intent and meaning, if in England, of the statute 7 & 8 Geo. 4. c. 29. Although the Mutiny Act does not itself apply to militia volunteers, the thirty- second section of the Militia Act 15 & 16 Tict. c. 50. incorporates the 42 Geo. 3. c. 90. ; and by section 89 of that statute it is enacted, that "during such time as any militia shall be assembled for the purpose of being trained and exercised, all the clauses, provisions, matters, and things contained in any Act of Parliament, which shall then be in force for the punishing mutiny and desertion, and for the better payment of the army and their quarters, and in the articles of war made in pursuance of such act, shall be in force with respect to such militia." The case finds that the Kent Militia were assembled for that purpose when the prisoner entered into it, and there- fore the Mutiny Act may apply. Questions 14 and 15 in the form of attestation are not to be found in the schedule to the Mutiny Act; but there is this question, "Have you ever served in the army?" And it has recently been held that a militia-man is a soldier ; Overseers of Horton v. Overseers of Leeds {a), and a man who has been enrolled in the militia cannot truly say that he has not served in the army. Coleridge J. — That case was upon the construc- tion of the statute attaching irremoveability to a five years' residence. Williams J If in strictness service in the militia is service in the army, the man might well think (a) 25 L. J. M. C. 38. 624 CROWN CASES RESERVED 1856. that it was not intended to include it when the ~r T~ question was put. A distinction is made between Jussup S " ^ ■ p 1 I Case. the militia and the army in question 14 ; for by that question he is asked, " Do you belong to any corps of militia or do you belong to her Majesty's army ?" Martin B. — What authority was there for putting the questions to the prisoner ? They differ essentially from those contained in the Mutiny Act. jP. Russell. 1 find that, by section 16 of the 15 & 16 Vict. c. 50., the Secretary at War has power to make regulations respecting the attestation of militia-men, and the form produced at the trial was made under that provision, and must be pre- sumed to be according to the regulations of the Secretary at War, as it was supplied by the War Office. It is provided by that section that the oath may be administered by a justice of the peace of deputy-lieutenant for the county. One question which arises is, whether a recruit examined and sworn under this section before a deputy-lieutenant, stands in the same position as if examined and sworn before a justice of the peace under the Mutiny Act, Pollock C. B. — We are all of opinion that the conviction on the first count cannot be sustained. F. Russell. Then there are the second and third counts, and I contend that the prisoner was properly convicted on those counts. Martin B. — We are asked if the prisoner was properly convicted on tliese two counts. For my part I can form no opinion upon the statement before us whether he was properly convicted or not. F. Russell. He pretended that he had never been enrolled in a militia regiment when in fact he had. He must have known the course of enlistment, that this question would be asked him, and that he would not be accepted at once and obtain the money if he Case. CROWN CASES RESERVED. 625 answered it truly ; and, indeed, the Court must now 1856. assume, that the statement was made fraudulently, jussup's and with a view to obtain the money, and that the money was obtained thereby, as the jury have found the prisoner guilty. The Court will also assume that the case was properly left to the jury, and on these grounds, that there is sufficient to justify the conviction on the second and third counts. Pollock C. B — We are really not in a condition to discuss the question. We are asked whether the prisoner has been rightly convicted of obtaining money by false pretences. He may or may not have been properly convicted. There is not enough stated in the case to enable us to say that the conviction was right, and therefore the conviction must be quashed. Cresswell J. — It is sufficient to say that there is not enough appearing upon the case to sustain a conviction upon the second and third counts. The other learned Judges concurred. Conviction quashed. 626 CROWN CASES RESERVED 1856. REGINA V. JOHN MOAH. The prisoner The following case was reserved for the opinion TnlnSu of the Court of Criminal Appeal by Mr. Justice ment under CrESSWELL. the 2 Wm. 4. The prisoner was tried before me at the last Chester in^ctme'lu S^"^ delivery on an indictment which contained two alleged that counls. The second, upon which alone he was found beingTnthe guilty, was as follows: "And the jurors aforesaid andentruJted "P°" ^''^''" ^^^^^ aforesaid do further present that the by virtue of said John Moah afterwards and within six calendar mentTith" months from the time of committing the said offence the receipt {„ jjjg g^gj ^^^^^ ^f (.^jg indictment mentioned to wit and custody of certain on the 13th day of September in the year aforesaid property of being then employed in the public service of our the Queen L^dy the Queen and entrusted by virtue of such to wit to the •' . ' . •' amount of employment with the receipt and custody of money bfiOQl., frau- dulently and feloniously applied the same to his own use and benefit, and so feloniously stole the same. By the evidence it appeared that he was an officer of Inland Revenue, and received certain taxes in respect of which he was allowed to retain in his hands a balance of about 300Z. to meet contingent expenses, that it was his duty to render accounts to certain inspectors, and that these accounts when rendered shewed a much larger balance in his hands than he was allowed to retain. That at last the General Surveyor of Inland Revenue examined the prisoner's accounts, and produced to him a statement extracted from them, shewing a balance in his hands of upwards of 5,000i., which he admitted. The Surveyor then asked him if he was prepared to pay over that balance or any part of it, and he said he was not. The Surveyor then reminded him that there was a balance of excise duties alone of about ZOOl. standing against him from the previous Monday, which was a receipt day at T. The prisoner then took out 2552. in bank notes, a check for 25/. 8s. 4.d., and a money order for fourteen shillings, and said that that was all the money he had iu the world. The Surveyor then asked what he had done with the rest, and he said he had spent it in an unfortunate specula- tion. Held, that there was evidence of the receipt of a particular sum of 3Q0Z. and of a misapplication of a part of it ; and that therefore there was sufficient to support the conviction. Quare, whether evidence of a general deficiency on a balance of accounts would alone have supported the indictment? Qucere, whether evidence of such a general deficiency is sufficient to sustain an indictment for embezzlement under 7 & 8 Geo. i. c. 29. s. 4r.f CROWN CASES RESERVED. 6! the property of our Lady the Queen did by virtue of 1856. his said employment and whilst he was so employed j^^^^^.^ as aforesaid receive and have in his possession and Case. was entrusted with certain money the property of our said Lady the Queen to wit to the amount of 5,000/. for and on account of the public service of our Lady the Queen and the said money then fraudulently and feloniously did apply to his own use and benefit and so the jurors aforesaid upon their oath aforesaid do say that the said John Moah in manner and form aforesaid the said last mentioned money being the property of our Lady the Queen from our Lady the Queen 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 Lady the Queen her crown and dignity." It was proved that the prisoner had for several years been an officer of receipts of inland revenue for the Chester district. In that capacity he received income tax, land and assessed taxes, and duties of excise. On each of these accounts he was allowed, by the Board of Inland Revenue, to retain in his hands a balance of lOOZ. to meet contingent expences. There were two inspectors of taxes for different por- tions of the prisoner's district, and it was his duty to send them returns shewing the amounts received and remitted by him, and the l)alance remaining in his hands, according to the accounts so rendered by the prisoner. In the months of July and August, 3 855, the balance remaining in his hands under each head much exceeded what he was allowed to retain; and in the month of September the balance in the whole amounted to more than 5,000/. On the 13th of that month the General Surveyor of Inland Revenue came to Chester, and after examining the prisoner's accounts had an interview with him, aod produced 28 CROWN CASES RESERVED. 1856. to him a statement extracted from his own accounts, MoAH's making the balance in his hands 5,214^. and a fraction. Case. He said he knew the balance was about that sum, as he had gone through the accounts a few days before. The surveyor then asked if he was prepared to hand over that balance, or any part of it ; he said he was not. The surveyor then reminded him that there was a balance of excise duties alone of about 300/. standing against him from the previous Monday, which was a receipt day, at Tarforley. The prisoner then took out 255/. in Bank of England notes, a check for 25/. 8s. 4c?., and a money order for 14s., and said that was all the money he had in the world. The surveyor asked him what he had done with all the rest. He said he had spent it in an unfortunate speculation. On behalf of the prisoner it was objected that inasmuch as no evidence was given on behalf of the Crown of the receipt and misapplication of any par- ticular sums, he could not be convicted under the 2nd of Wvi. 4. c. 4. I would not on that ground direct an acquittal, but left the case to the juvy, who found the prisoner guilty of the offence alleged in the second count; and I have now to request the opinion of this Court as to the suflSciency of the evidence to sustain that con- viction ? The prisoner in the meantime remains in custody. C. Cresswell. This case was argued on 26th January, 1856, before Pollock C. B., Coleridge J., Cresswell J., Williams J. and Martin B. Welshy (Daoison with him) appeared for the Crown. Ballantine {Hardinge Giffard with him) for the prisoner. CROWN CASES RESERVED. 629 Ballantitie, for the prisoner. This conviction can- 1856. not be sustained unless it can be shewn that a ~m^7^^^ particular and specific sum was embezzled ; a general Case. deficiency is no doubt proved, but that is not sufii- cient. Embezzlement is a statutable larceny and subject to the incidents of larceny ; true, the parti- cular coin need not now be proved, but a specific sum must be traced to the prisoner ; and one reason why it must be so is, that he could not otherwise plead autrefois convict or autrefois acquit. Pollock C. B. — The statute says, that if any person employed in the public service of his Majesty and entrusted by virtue of such employment with the receipt, custody, management, or control of any chattel, money, or valuable security, shall embezzle the same or any part thereof, or in any manner frau- dulently apply or dispose of the same, or any part thereof, to his own use or benefit, he shall be deemed to halve stolen the same. We may not approve of this mode of legislation, but we must deal with the law as we find it ; this is not stealing, except by virtue of the statute, which says, that if a man does so and so he shall be deemed guilty of stealing. Coleridge J. — No doubt embezzlement is a statut- able larceny ; but it wants some of the incidents of larceny ; it is a taking of something which has never been in the possession of the prosecutor. This offence is the creature of the statute which creates it. Ballantine. I put it broadly that notwithstanding the words deemed to steal, this is, in fact, a cliarge of stealing ; a larceny is, it is true, created by the statute; but it is a larceny with and subject to all the incidents of larceny. In all cases of embezzlement the real offence charged is larceny, and tlie only effect of the statute 7 & 8 Geo. 4. c. 29. is to get rid of the necessity of proving one of the ingredients Case. 10 CROWN CASES RESERVED. 1856. essential to larceny at common law, viz., that the Moah's property had come into the hands of the master. All the other ingredients essential to constitute larceny must exist ; and one is, that larceny must be com- mitted of something tangible, some chattel which is capable of being taken and carried away. A man cannot steal that which is merely imaginary — a mental result from a certain combination of figures. But for the statutory provisions which have rendered it unnecessary (a), it would be necessary to shew a misapplication of a particular coin. Coleridge J. — The case finds that the prisoner was reminded that there was a balance of excise duties alone of about 300/. standing against him frona the previous Monday, which was a receipt day at Tarforley, and that he then produced 255/., and said that that was all he had in the world, and that he had spent the rest in an unfortunate speculation. Does not that shew that he had misapplied, at all events, some part of a sum of 300/. received by him on a given day ? Ballantine. I contend that it does not. The difference between the 255/. and the 300/. would consist of numerous items received from different people, and the prisoner was entitled to retain 100/. to meet contingent expenses. It is impossible to point to any particular transaction of receipt and misapplication ; and if evidence of a general deficiency were held to be sufiicient, the prisoner would be deprived of the benefit of a plea of autrefois convict or autrefois acquit. Cresswell J. — If he has once been convicted of the whole he could not again be convicted of any (a) 7 & 8 Geo. 4. c. 29. s. 48.; 2 Wm. 4. c. 4. s. 3.; 14 & 15 Vict. c. 100. s. 18. CROWN CASES RESERVED. 631 part; if indicted, he could readily prove that the 1S56. specific sum formed part of the larger sum. Noah's Ballantine. A general deficiency may represent Case. any indefinite number of distinct embezzlements, and the law will not permit a man to be put upon his trial for a number of different offences at the same time. Until enabled to do so by statute, you could not include more than one charge in the indictment; at the common law this could not be done. Pollock C. B. — There was nothing in the common law to prevent it. I know of nothing in the common law to prevent all the prisoners being tried on one indictment, or any number of charges against one prisoner being included in one indictment ; it is only by the practice of judges that these rules have been established to prevent a man being embarrassed in his defence. Ballantine. If a rule of practice only, it was an inveterate and well-established rule which required an act of Parliament to alter it. Recognising and acting upon that rule, section 48 of 7 & 8 Geo. A. c. 29, enacts that any number of distinct acts of embezzlement, not exceeding three, which may have been committed within six calendar months may be included in one indictment. Section 3 of 2 Wm. 4. G. 4. contains a similar provision ; and, by section 16 of 14 & 15 Vict. c. 100. similar provision is made in cases of larceny. Coleridge J. — Suppose the prisoner had received various sums of money from many different persons, and had put them all together in a bag, without any means of afterwards distinguishing them. If he takes out of the bag less than the whole, do you say he could not be convicted 1 Ballantine. Yes; because it would be impossible to say what particular sum he had embezzled. 632 CROWN CASES RESERVED. 1856. Cresswell J. — Suppose the prisoner had received Moah's ^''o™ 3 thousand different people, on diffierent days, Case. different sums amounting in the aggregate to 5,000^., and he paid the whole on a certain day into his bankers, having then there 1,000/. of his own money, and he then misappropriated the money he had so received by drawing checks, exhausting the entire amount at his bankers, so that it would be impossible to say out of whose money any particular check was paid. Would he not be indictable ? Ballantine. In this case the total receipts are much larger than the amount of defalcation, and there is no evidence applicable to any particular sum, which is, I contend, necessary. In Rex V. Grove (a) it appears to have been decided, by eight judges to seven (h), that an indictment for embezzlement maybe supported, since 7 & 8 Geo. 4. c. 29. s. 48., by proof of a general deficiency of moneys that ought to be forthcoming, without shewing any particular sum received and not accounted for; but Par^ J., in delivering judgment, says (c) that the majority of the judges were of opinion that there was sufficient evidence to go to the jury of the prisoner having received certain moneys on a particular day, and for them to find that the prisoner did embezzle the sum mentioned in the indictment. Park J. was one of the judges who held the convic- tion right, and therefore must have known the reasons on which the judgment proceeded. Cresswell J. — The case expressly finds that there (a) 1 Mood. C. C. 447. S. C. Gurney B. and Williams J. ; while 7 Car. & P. 635. UUledale J., Gaselee J., Parke B., (6) The Judges who were of Bolland B., AUerson B., Patteson J. opinion that the conviction was and Coleridge J. were of the con- good, were Lord Denman C. J., trary opinion. Tindal C. J., Lord Ahinger C. B., (c) 7 Car. & P. 640. Park J., Vaughan B., Bosanguei J., CROWN CASES RESERVED. 633 was no evidence when the money or any part of it 1856. had been purloined, from whom it had been received, ~m^Xh^ what sort of money had been abstracted, and whether Case. from the till or upon its receipt from customers, and we must construe the judgment according to the case. Ballantine. That case has not been generally acted upon since. Cresswell J. — It was acted upon by my brother Erle in Reg. v, Lambert (a). Ballantine. It was previously considered in Reg. V. Lloyd Jones (6), in which Alderson B. held that it was not sufficient to prove a general deficiency in account, but that some specific sum must be proved to be embezzled in like manner, as in larceny, some particular article must be proved to have been stolen; and the learned Baron said that whatever difference of opinion there might be in the case of Rex v. Grove, it proceeded more upon the peculiar facts of that case than upon the law. In Reg. v. Chapman (c), Williams J. said to the prosecuting Counsel, " can you shew any precise sura received by the prisoner on account of his master, and the whole or part of that very sum appropriated by him to his own use?" And on receiving an answer in the negative, he held that in the absence of such evidence the prosecution could not be sus- tained, and Williams J. it must be remembered was one of the Judges who were in the majority in Rex v. Grove, and the one who tried Grove, and yet we find him laying down a proposition contrary to the principle on which the judgment in that case is supposed to proceed. I therefore contend that upon principle and authority, an ordinary indictment for (o) 2 Cox C. C. 309. (i) 8 Car. & P. 288. (.c) 1 Car. & Kir. 119. CROWN CASES RESERVED. embezzlement cannot be sustained, without proof of j^^^jj.g the receipt of some particular sum of money, and of <^ase- the misappropriation thereof, or of some part of it, and I also contend that the same proof is equally necessary on an indictment under this particular statute. Cresswell J The words of this statute are more comprehensive than those in sect. 47 of 7 & 8 Geo. 4. c. 29. s. 47, It is difficult to avoid the effect of the words, that if any person having the " management or control" of any money shall " in any manner fraudulently apply or dispose of the same or any part thereof to his own use," he shall be deemed to have stolen the same. Ballantine. I contend that there is no substantial distinction between the two statutes. I call attention to the words of sect. 42 of the 7 & 8 Geo. 4. c. 29., " if any clerk or servant or any person employed in the capacity of a clerk or servant,, shall by virtue of his employment receive or take into his possession any chattel, money, or valuable security, for or in the name or on the account of his master, and shall frau- dulently embezzle the same or any part thereof, ievery such offender shall be deemed to have feloniously stolen the same." Now take the words in this statute : " That from and after the passing of this act, if any person em- ployed in the public service of his Majesty, and entrusted by virtue of such employment with the receipt, custody, management or control of any chattel, money, or valuable security, shall embezzle the same or any part thereof, or in any manner frau- dulently apply or dispose of the same or any part thereof to his own use or benefit, or for any purpose whatsoever, except for the public service, every such offender shall be deemed to have stolen the same." CROWN CASES RESERVED. 635 These are in substance the same enactments. The 1856. words " management and control" were intended to moah's apply to the case where, without any actual receipt, *-'^^*- there is such a control as to enable a man to take the money into his possession whenever he pleases; and the words " fraudulently apply or dispose of," were probably introduced to meet the difficulty arising from the cases in which it had been held that there must be a denial of the receipt of the money, or some false account in order to constitute embezzlement. At all events there is no such difference between the two enactments, as to prevent the necessity for proving the misapplication of some specific sum, as in a case of ordinary embezzlement. Welsbi/, for the Crown. The statute says, that if certain things concur, the person with respect to whom they concur shall be deemed guilty of larceny. They are : 1. The person charged must be a person employed in the public service of her Majesty ; and it is admitted that the prisoner was so employed. 2. He must have been entrusted by virtue of such employment with the receipt, custody, management or control of some chattel, money, or valuable secu- rity; and no doubt the prisoner was so entrusted. 3. He must either embezzle the same or some part thereof, or fraudulently apply or dispose of the same, or some part thereof, to his own use or benefit, or for some purpose other than for the public service. The jury have found that the prisoner did fraudu- lently apply to his own use a sum of 5,000/. or part thereof; and there was sufficient evidence to support that finding. [He was stopped by the Court.] Pollock C. B We are all of opinion that what- ever difficulty there may be as to the larger sum, there is none as to the 300Z., and that the evidence VOL. I. B B B 636 CROWN CASES RESERVED. 1S56. with respect to that sum clearly brings the case within ■' Moah'8 *^^ Statute. As to that, the case finds that after some Case. conversation about the amount of the general balance against the prisoner, the surveyor then reminded him that there was a balance of excise duties alone of about 300Z. standing against hfm from the previous Monday, which was a receipt day, at Tarforley ; that the prisoner then took out 255^. in Bank of England notes, a check for 25^. 8s. 4d., and a money order for 14s., and said that that was all the money he had in the world; that the surveyor then asked him what he had done with all the rest, and he replied that he had spent it in an unfortunate speculation ; — which amounts to this, that he had received a certain sum on account of the Crown, and had spent it in an un- fortunate speculation. That evidence brings the case within the statute. The object of the statute was to give the utmost possible facility to the punishment of persons in the employment of the Crown who were guilty of fraudulently appropriating money belonging to the Crown, with which they are entrusted. This is the enactment on which this indictment is framed. [The learned Judge here read the words of section 1 of 2 Wm. 4. c, 4.J The very long and learned argument of Mr. .Ba^/ara- tine as to the law of embezzlement does not apply to this case; because, upon the language of this particular statute, if any person employed in the service of the Crown shall embezzle, or in any manner fraudulently, misapply money of the Crown, with the control of which he has been entrusted, he shall be deemed to have stolen the same. Whenever that is the case you may simply charge him with stealing, and on giving in evidence the acts done which are necessary to bring him within the operation of the statute, you prove that the offence contemplated by the statute has been committed. CROWN CASES RESERVED. 637 It may be inconveuient to call one thing by the ]856. name of another; and I cannot say that I particularly „ - . . Moah's approve ot that mode of legislation ; but the law has Case. chosen to say that if certain things occur the offender shall be deemed guilty of stealing, and we must give effect to the plain meaning of the words of the enact- ment, and see whether the facts proved make out the substance of the offence charged, which consists in .the abuse of the public trust by the misappropriation of the public money. In this case 1 think they do. The prisoner here, at all events, on his own state- ment, received SOOl. on a particular occasion, and applied a portion of that money to his own use, namely, to an unfortunate speculation of his own. That is sufficient completely to make out the offence contemplated by the statute, and the conviction must be affirmed. Coleridge J I am of the same opinion ; but I do not wish it to be supposed that I agree with all that has been said by the prisoner's Counsel in the course of his argument as to the general question. The count on which the conviction proceeds is, T think, abundantly proved by the evidence. That count, after stating what the statute requires as to the employment of the prisoner in the public service, and his being, by virtue of such employment, entrusted with the public money, alleges that he did fraudulently and feloniously apply the same to his own use, and then draws the conclusion which the statute warrants, namely, that he thereby stole the money. It is proved, out of the prisoner's own mouth, that he had received, no matter from how many different persons, various sums, amounting to 300?, at the least, which formed a fund in his hands belonging to the Crown, for which he was bound to account; and the question is, whether he has fraudulently applied all or any B B B 2 638 CROWN CASES RESERVED. 1856. part of it. He himself produces a sura of money, Moah's 255?., and says, I have expended "the rest" in unfor- Case. tunate speculations. It is not material whether that sum of 255Z. was part of the 300/. or not, because " the rest," which must include part or all of the 300/., he had, according to his own statement, ex- pended in an unfortunate speculation. It is the same as if he had received the 5001. in a bag, and, part of the money being gone, he had said, I have disposed of the sum wanting for my own benefit. If that would not be evidence of a receipt of a particular sum, by virtue of his employment, and a fraudulent appropriation of some part of that sum, I do not know what would be. Chesswell J. — I am also of opinion that the con- viction must be sustained as to the 300/. I by no means say, that it is not sustainable as to the 5,000/. It is a question of law of great importance, and the authorities are somewhat conflicting. In Hex v. Grove, under circumstances somewhat similar, the conviction was sustained by a majority of eight judges to seven ; but in a subsequent case that deci- sion was not followed, and was said to have proceeded upon some special facts. In Beg. v. Lambert, however, which cannot be distinguished from this case, my brother Erle held that evidence of a general defi- ciency was sufiicient to sustain the indictment. As at present advised, I should say that the prisoner, being shewn by his own accounts to have a balance in hand of 5,000/. due to the Crown, and he making no attempt to explain it on the ground of error or loss of the money, merely says, that he has expended it for his own purposes, he may upon that evidence be convicted of embezzling the money, and that, having been once indicted for embezzling the whole amount, and either convicted or acquitted, he never could be CROWN CASES RESERVED. 639 indicted again for embezzling any part of it. I 185(5. merely throw this out as shewing ray grounds for Moah's saying, that I am by no means satisfied that this Ca^«- indictment is not sustainable as to the whole amount of the prisoner's-deficiency. Williams J. — I am also of opinion that this con- viction must be affirmed. We are enabled to dispose of this case on narrow grounds ; but I was anxious that the major question, whether Rex v. Grove is law, should have been decided. However, as to the 300/., it appears that the prisoner was entrusted with the receipt and custody of that sum on behalf of the Crown, and that he fraudulently applied part of it to his own use. There is, therefore, a specific trans- action pointed at, as to which the conviction is clearly sustained. Martin B This is an indictment framed on an act of Parliament, and we must read the statute and ascertain its meaning. I protest against the idea that when an act of Parliament is made as clear as words can make it, you are to cite as authorities as to its construction, and as a guide to us in its interpreta- tion, cases decided years and years before upon another statute. The section in question says, that if any person in the employment of the Crown is entrusted by virtue of such employment with the receipt, custody, management, or control of money, and shall embezzle or fraudulently apply or dispose of the same, or any part thereof, to his own use or benefit, he shall be deemed to have stolen the same. It is admitted that the prisoner was in the employment of the Crown, and did receive the moneys by virtue of such employment. Then did he apply or dispose of part of such moneys to his own use or benefit ? His own statement is conclusive that he did. The case is clearlv within the act of Parliament, and* if there is 640 CROWN CASES RESERVED. 1856. anything in the cases decided previously inconsistent Moah's ^'•■h ^hat conclusion, then I should say that the Case. legislature intended by the provisions of this statute to get rid of the effect of those decisions. Conviction affirmed. 1856. REGINA V. JOHN DAVIES, alias RUSH, and WILLIAM DAVIES. The prisoners The following case was reserved for the opinion of ^"olr stealing the Court of Criminal Appeal, by Mr. Justice Erle, a post-office ^t the Montgomeryshire Spring Assizes at Welshpool, appeared by 1856. thatTpost^^ The prisoners were convicted of stealing a post-office letter, con- order, laid, in the first count, to be the property of taimngapost- , ^-i /-~i i -i . i i i office order, the fostmaster (jreneral, and in the second count, that j!i)!! was" of William Davies. The jury must be taken to have misdelivered found the following facts, viz. : William Davies, of of the pri- Bishops' Castle, put the post-office order in a letter couirno^° into the Post Office there for his son, having directed read, and he it to him thus : ^^ John Davies, D., the other " Pack Horse Inn, Xr:d " Welshpool" it for him. In Welshpool there were two Inns of that name, it read, j!^JO. called The Upper and The Lower Pack Horse ; at said that the jjjg Lowcr, John Davies, the son was living : at the letter and o ' order were Upper, John Rush, the prisoner, who had enlisted in not for him ; but W. D. advised him to keep them and get the money, and both the prisoners accordingly applied at the post-office and obtained the money, and appropriated it to their own use. Held, that the conviction was wrong. CROWN CASES RESERVED. 641 the militia as John Davies, and was known by that 1856. name only in Welshpool, was billeted, and the' letter ' davies's was delivered for him there from the Welshpool post- Case. oflSce. He could not read, and took the letter to the other prisoner William Davies, also billeted in Welsh- pool, who read it to him. John Davies then told him that the letter and order were not intended for him, and William Davies advised him, notwithstanding to keep them and get the money, and this they both immediately did by applying to the post-office in the ordinary way. I told the jury that if at the time the prisoners received the order, they knew it was not the property of John Davies the prisoner, but the property of another person of known name and address, and nevertheless determined to appropriate it wrongfully to their own use they were guilty of larceny, and that in my opinion they had not received it until they had discovered, by opening and reading the letter, whether it belonged to John Davies the prisoner or not. I considered that the law of larceny laid down in respect of articles found, was applicable to the article here in question. In respect of those articles the finder is guilty if, after he has ascertained what the article is and what are the marks of ownership, he determines to appropriate it wrongfully to himself; and so, in respect of an article enclosed in a misde- livered letter, the question of wrongful appropriation cannot arise until it has been ascertained whether the letter has been paisdelivered or not. I ruled as above stated, but when I did so my attention had not been called to H. v. James Mucklow, 1 Moo. C. C. 100, and on reading it I reserved the point whether upon these facts and this ruling the conviction was lawful. The prisoners were sentenced, one to three months and the other to six months' imprisonment with hard 642 CROWN CASES RESERVED. 1856. labour, and they were ordered to be kept in the prison Davies's ""•^il the case should be determined. <^''««- W. Erle. This case was considered on 26th April 1856, by Jervis C. J., Coleridge J., Cresswell J., Erle J. and Martin B. No Counsel appeared either for the Crown or for the prisoner. Jervis C. J. — This case is governed by the case of Eex V, Mucklow, 1 Moo. C. C. 160. The conviction therefore must be quashed. The other learned Judges concurred. Conviction quashed. 1856. REGINA V. JOHN LANGTON LEECH. The prisoner The following case was reserved for the opinion of of obtaining the Court of Criminal Appeal by the Recorder of rreTr'r Carmarthen. tences, the At the Evivkany Quarter Sessions held for the venue being nii ip/-» i /i • laid in the county ot the borough ot Carmarthen (being a court boroughof a °^ separate jurisdiction from that of the connty of It was proved that the pri- soner by means of a false pretence, contained in a letter written by him in the county of C, received there the money obtained by it, which money was sent to him by the prosecutor in a registered letter. The letter containing the false pretence was received by the prosecutor in the county of the borough of C, and the registered letter containing the money was posted in the county of the borough of C. Held, that the venue was properly laid. Case. CROWN CASES RESERVED. 643 Carmarthen), in 1856, John Langton Leech was 1856. tried for and convicted of obtaining money by false Leech's pretences. After the case for the prosecution had closed, but before the verdict was delivered, the advocate for the prisoner objectecj, that the venue was not properly laid in the county of the borough of Carmarthen, and that the prisoner was not indictable there. The following evidence as applicable to the objection was given. The prosecutor, John Matthews, is the postmaster of Carmarthen, and was so at the time the offence was committed by the prisoner. The prisoner was, in Mai/ last, when the offence was committed, an ofl&cer in the department of the General Post OflBce, acting as assistant surveyor of the South Wales district, and on duty at Newcastle Emlyn, in the county of Carmarthen. On the 23rd oi April, 1855, the prisoner wrote the following letter to the prosecutor. *' Dear Sir. Will you kindly send me 121., and I will give you a warrant at the end of the month. " Yours faithfully, (Signed) " John L. Leech." It appeared that the authorities of the General Post Office were in the habit of paying their officers by means of money orders which are called " warrants." It appears by the following receipt for a regis- tered letter that the prisoner received the 127. which he required : " 12/. Received this 24th day of April, 1855, of the postmaster of Newcastle Emlyn, a registered letter addressed to John L. Leech, Esq., P.O., Newcastle Emlyn. (Signed) " John L. Leech:' On the 2nd oi May, 1855, the following letter was 644 CROWN CASES RESERVED. 1856. received by the prosecutor from the prisoner ; it bore Leech's "0 date. Case. ., jyty ^g^j. gj^^ j j^^^^ g^j ^ warrant for 32^. lis. 6flf. Will you please send me the difference between 12/., which I have had, and I will send you the warrant, or bring it myself. " I will send you instructions to-morrow about the change at Cenarth Kilgerran. " Yours faithfully, (Signed) '■'■John L. Leech.'' In compliance with the request of the prisoner, the prosecutor sent to the prisoner by post, in a regis- tered letter, posted at Carmarthen within the county of the borough of Carmarthen, 201. lis. Qd. being the difference between the 12/., previously sent by the prosecutor to the prisoner, and the 32/. lis. 6^. for which the prisoner alleged in his letter he had a warrant. By the following receipt for the registered letter, it was proved that the 20/. lis. 6d. was received by the prisoner at Newcastle Emlyn, in the county of Carmarthen. " 20/. lis. 6c?. Received this 3rd day oiMay, 1855, of the Postmaster oi Newcastle Emlyn, a registered letter addressed to John L. Leech, Esq., P. O., Newcastle Emlyn. (Signed) " John L. Leech." In each receipt for the registered letter the amount contained in the letter was inserted in the receipt, for the protection of the prosecutor. The following letter was addressed to the prose- cutor by the prisoner, which, amongst other matters referring to the business of the Post Office, contains the following paragraph : — " Gloucester, 10th May, 1855. "My Dear Sir, " I will send you the warrant for 32/. lis. &d. CROWN CASES RESERVED. 645 in the course of 3 or 4 days. I was obliged to return 1856. it to London for correction." ~L^^^^li7~ It was proved that the prisoner had not, on the '^^^^• 2nd of May, 1855, or at any period between that day and the 25th of May, 1855, any warrant for 32?. lis. 6af., or for any other sum ; and that the prosecutor had not, between the 2nd of May, 1855, and the day on which the prisoner was tried, received from the prisoner any such warrant, or the sum of 20Z. lis. 6c?. received by the prisoner on the 3rd of May, 1855. The false pretence of which the prisoner was con- victed, is the statement in the prisoner's letter written at Newcastle Emlyn, in the county of Carmarthen, and received by the prosecutor in the county of the borough of Carmarthen, on the 2nd day of May, 1855. The money which the prisoner was convicted of obtaining by such false pretence was the 20?. lis. 6c?. posted in a registered letter in the county of the borough of Carmarthen, and received by the prisoner at Newcastle Emlyn, in the county of Carmarthen, on the 3rd of May, 1855. The advocate for the prisoner urged that the false pretence was not made, nor the money obtained by the false pretence paid, in the county of the borough of Carmarthen, and that the Court of Quarter Sessions for that borough had therefore no jurisdiction to try the prisoner. I thought the Court had jurisdiction to try the prisoner, but at the request of the advocate for the defence, I thought it advisable to request your Lord- ships' opinion whether, having regard to the facts above set forth, the venue was properly laid in the county of the borough of Carmarthen. This case was argued on 26th April, 1856, before 646 CROWN CASES RESERVED. 1856. Jervis C. J., Coleridge J., Cresswell J., Erle J., Leech's and MartiN B. Bowen appeared for the Crown ; no Counsel ap- peared for the prisoner. Bowen for the Crown. In Reg. v. Jones (a) it was decided that where money, obtained by false pre- tences, reached the prisoner in the county of B., but had been transmitted to him in a letter posted at his request in the county of A., he was triable in A., independently of the statute 7 Geo. 4. c. 64. s. 12., which enacts, that "if any felony or misdemeanor shall be begun in one county and completed in another, such felony or misdemeanor may be dealt with, inquired of, tried, determined, and punished in any of the said counties in the same manner as if it had been actually and wholly committed therein." In Reg. v. Jones, Alderson B. observed, that the postmaster who received the letter became the agent of the prisoner, who must thus be taken to have himself received it in the county in which it was posted. Jervis C. J. — The offence charged consists of the making of the false pretence, and obtaining money by means of such false pretence. That offence was committed by the prisoner partly in one county and partly in another. That is sufficient. The case comes within the statute, and the conviction must be affirmed. The other learned Judges concurred. Conviction affirmed. (a) 1 Den. C. C. 551. CROWN CASES RESERVED. 647 REGINA V. JOSEPH TOPPING. 1856. The following case was reserved for the opinion of The prisoner, the Court of Criminal Appeal, by Mr. Baron Martin, j^eS'Snt' at the Carlisle Spring Assizes, 1856. •" Bngland, I request the opinion of the Court of Crinjinal Scoiland,a.e- Appeal upon the following case. On the 2nd of =°^'',^°^ *° February, 1849, the prisoner, Joseph Topping, a Scotland,a. \ • . p 1 uT • 1 1 • 11 woman resi- suDject or her Majesty, who was at that time usually Aent'mEng- resident at Carlisle, married in Scotland, and accord- f"?^' '^"^ ' ' _ wnile she was ing to the law of Scotland, Anne Ashton, then also in alive married 1> 1 • 1 . y-v 7* 7 11^ Scotland, Ike manner resident in Carlisle. according to On the 25th November, 1854, Anne Ashton being *j)fj;^^/ alive, the prisoner, who continued resident at Carlisle, another married in Scotland, and according to the law of ^draMn^' Scotland, Jane Lister, then also usually resident at ^"fJT^'.j^ Carlisle. was properly Question. Has the prisoner committed an offence biga^mVin" against the statute 9 Geo. 4. c. 31. s, 22. 1 England ° under section • Samuel Martin, 22 of 9 Geo. 4. 14th April, 1856. C. 31. This case was considered on 26th April, 1856, by JeRVIS C. J., WiGHTMAN .T., CrESSWELL J., ErLE J. and Martin B. No Counsel appeared either for the Crown or for the prisoner. Jervis C. J. — We are clearly of opinion that the oflFence of bigamy was complete within the statute. The prisoner married a woman in Scotland. He afterwards contracted a second marriage in Scotland during the life of his first wife. At the time of his 648 CROWN CASES RESERVED. 1856. Topping's Case. second marriage therefore he was a person married. It is found in the case that he was a British subject at the time of the second marriage, and the second marriage therefore, although it took place in Scot- land, was clearly an offence within the statute, which says: that " nothing herein contained shall extend to any second marriage contracted out of England by any other than a subject of his Majesty." The other learned Judges concurred. Conviction affirmed. 1856. REGINA V. MARY ANN STRIPP. Section 18 of 11 & 12 Vict. c. 42., which requires a caution to be given to the prisoner by the justice The following case was reserved for the opinion of the Court of Criminal Appeal by the Chairman of the Quarter Sessions holden at Reigate in and for *the county of Surrey. At the general quarter sessions of the peace of our before whom Sovereign Lady the Queen holden at Reigate in and ed,'ap*pi?es'°" for the county of Surrey, on Tuesday, the eighth day oi April, in the year of our Lord, one thousand eight hundred and fifty-six, Mary Ann Stripp was tried and convicted of stealing from her master upwards of five pounds, in the dwelling-house of her said master, and was thereupon sentenced to one calendar month hard only to the concluding examination before the committing magistrate, when all the witnesses have been ex- amined ; and, therefore, a voluntary statement made by a prisoner in the course of an examination before a magistrate, and before all the witnesses have been examined, is admissible in evidence at the trial, although no caution has been previously given. CROWN CASES RESERVED. 649 labour; but execution of such sentence was respited 1856. until the opinion of the Justices of either bench, and Stripp's Barons of the Exchequer, should be given on the fol- ^^''• lowing point. Amongst the other articles which were proved to be so stolen was acash-boxcontainingupwards of five pounds in money, the property of the prisoner's master. This cash-box bore the marks of having been opened with violence. It was in the possession of a superintendent of police, who, being desirous of making a further search before the examination of the several witnesses at petty sessions, took the prisoner before a magistrate, and applied to have her remanded to enable him to make his intended search. In support of his application for a remand the super- intendent produced the cash-box and an iron chisel, stating his belief that it was with that instrument the prisoner had opened the box ; upon which the pri- soner, spontaneously, and without any question having been put to her, said that she had not opened the box by means of the chisel, but by a hammer. No examination whatever was taken by or before the magistrate above referred to, who merely granted a remand ; but it will be seen by the deposition which follows that what passed on the application for the remand was given in evidence before the committing magistrates, and was taken down in writing as part of the deposition of the superintendent. This deponent, William Henry Biddlecomb, on his oath saith as follows: — •' On Thursday last, the twentieth of March, from information I had received of the robbery, I went to the prosecutor's house, accom- panied by Inspector Murtell. I commenced my inquiry, and first of all ascertained the number of persons in the house on the Monday. My suspicions having been directed to the prisoner I directed the inspector to make a minute search on the outside of Case. 650 CROWN CASES RESERVED. .1856. the premises while I commenced searching the inside. Striff's From something that occurred during the search, I felt it necessary to go to Thames Ditton, the residence of the prisoner's mother, and I there apprehended the prisoner. I asked her for her purse and money ; she said, My mother has put it in her box; her mother was not at home, but the lodger opened the box for me. I there found thirty shillings in silver and fifteen pounds ten shillings in gold. On my way from Esher to Weybridge the prisoner cried and said, She wished to see her mother. On the Saturday, from something Moore told me, I went to the cell in which the prisoner was confined. I said to her, I find you have made a statement to the oflScer; I am going to take you to a magistrate. She said, You will find the money in the mill pond; I threw it in because I thought the policeman suspected me when he came on the Wednesday. I threw away the Hanover coin atid the half guinea because it was not good. On the previous day {Good Friday^ I had seen her in her cell; I told her her mother was coming to see her, but that I must give her this caution — that whatever she said to me, or any one connected with the station, would be related to the magistrates, and used as evidence against her. Her reply was, I hope mother will come. On Saturday I placed her before Mr. Back, and asked for a remand ; she stated to Mr. Back that she had thrown the money into the mill pond, and placed the cash-box in the coal- cellar. I produced a hammer and a chisel before Mr. Back, and said, I believe the instrument (a chisel) now produced was used in breaking the cash-box. She said, No, I did it with the chopper. When I apprehended the prisoner and told her the charge, she said, I know nothing about it." At the proceedings before the committing magis- CROWN CASES RESERVED. 651 trates the charge was read to the said prisoner, and 1856. the several witnesses for the prosecution were ex- stbipp's ainined in her presence. The prisoner, after the Case. usual caution, was asked if she wished to say any- thing in answer to the charge, whereupon she said, " I am not guilty. The things which are now pro- duced were not found in my box when it was first searched by Mrs. Holroyd." The depositions and statement of the prisoner above mentioned were produced at the trial, and the superintendent above referred to was examined, and gave the same statement as contained in his depo- sition, including the voluntary admission made by the prisoner before the magistrate, first above men- tioned on the application for a remand ; but the witness stated that the magistrate's clerk, who took down his evidence, had erroneously used the term " hammer" instead of "chopper." The Counsel for the prisoner objected that the statement of the prisoner in the presence of the remanding magistrate was not receivable in evidence at the trial, not having been then taken down in writing with the previous caution required by statute. The Court held, that no examination whatever having been committed to writing on the application for a remand, but merely a statement being made by the officer as the reason for such application, the voluntary interruption of the prisoner at the moment was not governed by the rules relating to a statement made by a prisoner at the close of an examination before the committing magistrates, and the jury were directed that they might take into consideration the evidence of the witness of what passed before the magistrate on the application for the remand, including the statement then voluntarily made by the prisoner. VOL. I. c c c 652 CROWN CASES RESERVED. 1856. The jury thereupon convicted the prisoner, and, Stripp's "PO" ^^^ application of the prisoner's Counsel, the Case, Court reserved, for the decision of the justices of either Bench and Barons of the Exchequer, the ques- tion, whether the voluntary statement of the prisoner, in the presence of the remanding magistrate, the same not having been then committed to writing, after the caution required hy the statute had been previously given, was properly received in evidence at the trial ? /. W. Freshfield, Chairman of Quarter Sessions. This case was considered on 26th April, 1856, by Jetivis C. J., Wightman J., Cresswell J., Erle J. and Martin B. No Counsel appeared either for the Crown or for the prisoner. Jehvis C. J. — The question in this case is, whether the statement of the prisoner was inadmissible against her on account of her not having been cautioned by the magistrate before she made it. Section 18 of 11 & 12 Vict. c. 42., which requires that a prisoner shall be cautioned, in order to render what he says admissible in evidence against him, is only intended to apply to the concluding examination before the committing magistrate, after all the witnesses have been examined, and does not apply to a voluntary statement made by a prisoner in the course of the examination, and before the conclusion of the case for the prosecution. Such a statement is admissible, and it is immaterial whether it was made before, during, or after a remand. Conviction affirmed. CROWN CASES RESERVED. 553 REGINA V. JOB BULLOCK AND JOSEPH 1856. CLARK. ■ The following case was reserved for the opinion of The first the Court of Criminal Appeal by the Chairman of -^"^^^[^[^^^ the Quarter Sessions for the county of Wilts. chargeTthat At the General Quarter Sessions of the Peace for Singr the county of Wilts, holden at Devizes in the said ^'^""^17^ county, the 1st day of January, 1856, before her conspire "to Majesty's justices of the peace for the same county, Sthe'^saiJ Job Bullock and Joseph Clark were indicted for con- •^•. G. "^ a cer- spiring and attempting to cheat one John Gaisford. oTmoneyr"" The first count of the indictment charged that the ThtVco^i prisoners, "wickedly devising and intending to de- ^^^arged a Iraud one John Gaisford, did between and amongst by false pre- themselves unlawfully conspire, combine, confederate oSfrom and agree together, falsely and fraudulently to cheat -^-G. a large and defraud the said John Gaisford of a certain large to wit 20°"^^' sum of money, to wit twenty pounds ;" and divers and defraud overt acts were then stated in the said first count. '"™ thereof." The second count charged that the prisoners did count charg- unlawfully conspire, combine, confederate and agree racy by'fafie together, by divers false and fraudulent pretences and P«tences, 11 I 1 • 1 • c " feloniously subtle means and devices, to obtam from the said to steal from John Gaisford a large sum of money, to wit twenty a^tr^ge'lu^' pounds, and to cheat and defraud him thereof, to the "f money, to ^ wit20?." The fourth count charged an attempt, by false pretences, to obtain "from the said /. G. the sum of 201., with intent to defraud." The fifth and last count charged that the prisoners, by false pretences, did attempt to steal "from the said J. G. a large sum of money, to wit 201. of the monies of the said J. G." The prisoners were found guilty, and judgment was passed on each count of the indictment. The prisoners were convicted on all the counts, and were sentenced to distinct punishment on each. Held, that the fifth and last was a good count, and that the conviction must therefore be affirmed. Semble, that the first four counts were not good. c c c 2 Case. 654 CROWN CASES RESERVED. 1856. great damage of tlie said John Gaisford." The third Bullock's Count, that they did " unlawfully conspire, combine, confederate and agree together, by divers false and fraudulent pretences, feloniously to steal, take and carry away of and from the said John Gaisford a large sum of money, to wit twenty pounds, to the great damage of the said John Gaisford." The fourth count, after setting forth divers false pretences made by the prisoners, proceeded as follows : '' By means of which said false pretences the said Job Bullock and Joseph Clark did then unlawfully attempt and endeavour to obtain from the said John Gaisford the sum of twenty pounds, with intent to defraud." The fifth and last count charged that the prisoners, by " divers false and fraudulent pretences, unlawfully, knowingly, and designedly did attempt and endeavour feloniously to steal, take and carry away of and from the said John Gaisford a large sum of money, to wit, the sum of twenty pounds, of the monies of the said John Gaisford." It was objected at the trial, on behalf of the prisoners, that all the above counts were bad, and Sill v. Regina, 22 Law J. M. C. 41 (a), and Regina v. Marsh, 19 Ibid. 12, were cited by the prisoner's Counsel in support of the objection. The Court thought it right to allow the case to proceed ; and it being proved, to the satisfaction of the Court and jury, that the prisoners had, by a concerted scheme, endeavoured to cheat the said John Gaisford of twenty pounds, by passing to him four five-pound cancelled notes in ex- change for his monies to the same amount, the jury found the prisoners guilty upon each count of the indictment, and the prisoners were respectively sentenced to one year's imprisonment and hard labour, («) S. C, ante, 132. CROWN CASES RESERVED. 655 and they are now in prison under this sentence, and 1856. judgment was passed on each count of the indict- bullock's ment, the sentence of hard labour being confined to '^'*^^- such counts respectively as charged a conspiracy, so that if either of the counts be good the sentence will take effect to the extent to which it was passed on such count. The Court reserved this case for the opinion of the Criminal Court of Appeal, and the question is, whether the objection, made to the form of the indict- ment can be sustained ? J. W. Audry, Chairman. This case was considered on 26th April, 1856, by JeRVIS C. J., WiGHTMAN J., CrESSWELL J., ErLE J. and Martin B. No Counsel appeared either for the Crown or for the prisoners. Jervis C.J.' — The prisoners have been convicted on all the counts and sentenced on each; therefore if any count is good the objection substantially fails. The last count is clearly good. It does contain the name of the person whose money the prisoners are charged with attempting to steal, and is therefore free from the objection in Reg. v. Sills. The other learned Judges concurred. Conviction affirmed. 656 CROWN CASES RESERVED. 1856. REGINA V. SAMUEL THOMAS SLOGGETT. "Where a bankrupt is examined before a com- missioner in bankruptcy, touching a matter not relating to his trade dealings, or estate, and does not re- fuse to answer on the ground that the an- swer would tend to cri- minate him, but answers without any objection. Held, that his answers were voluntary, and that his examination was admis- sible against him on a subsequent criminal charge. Quare, whe- ther, if the examination had been confined to matters re- lating to his trade deal- ings, or estate, such examination would not then have been compul- sory and in- admissible. The following case was stated by Mr. Serjeant Channell for the opinion of the Court of Criminal Appeal. Samuel Thomas Sloggett was convicted before rae at the last Assizes for the county of Devon of unlaw- fully uttering a forged letter, signed " T. F. Sloggett" knowing it to be forged, with intent to obtain certain goods, the property of Sampson Copestake and others. Sentence was passed upon the prisoner, viz. im- prisonment for two calendar months in the gaol of Devonport. He is now in prison. Before any criminal charge was made against him, the prisoner was ex- amined in the Court of Bankruptcy for the Exeter District, under an adjudication in bankruptcy against the prisoner, on petition of a creditor. The prisoner, before such examination, made and signed the decla- ration required by the 12 & 13 Vict. c. 106. s. 117. See also section 254. The examination was taken down in writing, in the presence of the Commissioner, and was signed by the prisoner. In the course of the examination the prisoner was cautioned by the Commissioner to speak the truth. In a later stage of the examination the prisoner was told by the Commissioner that he was to consider himself in custody. On the trial of the prisoner the usher of the Court of Bankruptcy was examined as a witness for the prosecution. He produced the proceedings iu bankruptcy and CROWN CASES RESERVED. 657 the examination of the prisoner under the seal of 18.56. the Court, and signed by the Commissioner. Sloggett's The witness proved that he was present when the ^^'^• prisoner was examined before the Commissioner, and that he could point out in the examination the part at which the prisoner was told to consider himself in custody. It did not appear that the prisoner claimed the protection of the Commissioner, or objected to answer any question on the ground that the answer thereto would criminate or might tend to criminate him, or on any other ground. The Counsel for the prosecution proposed to read so much of the prisoner's examination before the Commissioner as preceded the statement that the prisoner was to consider himself in custody, offering to read the whole of the examination if desired by the prisoner's Counsel. The prisoner's Counsel objected to the reading of the examination. I received in evidence the part of the examination which preceded the statement referred to. The prisoner's Counsel did not require the other part to be read. A copy of so much of the examination as was read, is annexed to this case. The parties named in the indictment as Sampson Copestake and others, are parties who traded under the style or firm of Growcock ^ Co., mentioned in the examination of the prisoner, and are the parties therein referred to. The question for the opinion of the Courtis, whether the examination read was properly read in evidence ? W. F. Channell. The following is a copy of the part of the prisoner's examination referred to in the case. 658 CROWN CASES RESERVED. 1856. The Bankrupt Law Consolidation Act, 1849. In Sloggett's ^^^ Court of Bankruptcy for the Exeter District, Hall Case. of Commerce, Plymouth, July 9th, 1855. In the matter of Samuel Tho7nas Sloggett, a bankrupt. Before Mr. Commissioner JSere. The said Samuel Thomas Sloggett, being come before the said Commissioner on the day and year above mentioned, and having made and sub- scribed the declaration by law required, and being examined, saith the account now produced marked with the letter "A" contains a statement of all trans- actions I have had with Messrs. Growcock ^ Co., of London, except the first, for which I paid cash. In August last I had an interview with Mr. Hughes, their traveller, and he asked me what capital I had in my business, and I told him from about 250^ to 300/. He asked me to whom I could refer him to satisfy him; I hesitated, and told him I could not tell to whom to refer him, but said he could go to my friends, I meant my father ; he took my father's address, and put it down. There was then a letter written by Messrs. Growcock, of which the copy pro- duced is, as near as I recollect, the substance. The letter was sent to my father the 24th of August. The letter was brought to me by my younger sister, and I was asked what reply was to be made to it, and I went home to my father's on the Sunday following the receipt of the letter and saw my father. I asked my father to reply to it, stating he knew, as well as I did, how I was circumstanced ; my father refused to reply to it, as I wished, because he said the money was not my own capital, and was borrowed ; my sister was present at the interview. The reply was for- warded and written by my brother, Richard Sloggett, on the 26th of August ; the letter produced marked "C" is that which he wrote; the whole is his hand CROWN CASES RESERVED. 659 writing, including the address. The letter was 1856. written in an oflBce belonging to my brother, and was slogoett's not authorized by my father, who did not know of its ^'*^^- being written. I did not prepare the draft of the letter ; my brother Richard wrote it himself, merely asking me what he was to say. I told him he was to say the money was my own property. My brother knew that the money had been lent to me by Mrs. Wai'burton. 1. Question. What object had you in view when you gave Messrs. Growcock 8f Co. that statement in the letter knowing it was false : was it not to obtain additional credit? Answer. No, I had no such object. 2. Q. Do you adhere to that answer ? A. My object was to gain credit to a certain extent, but I was not aware that the difference between stating the capital was my own, and being borrowed, would affect my credit. Z. Q. Do you adhere to that answer ? A. Yes. 4. Q. Again you are asked if you adhere to that answer? A. Yes. 5. Q. Why did you not then make a true statement instead of a false one ? A. I anticipated one day the sum would be mine, and I thought it was a form of theirs to obtain a reference. 6. Q. Why did you practice such a fraud as getting your brother to write in your father's name ? A. I was not aware it was a fraud. 7. Q. What has become of the letter sent by Grow- cock ^ Co. to your father? Case. 660 CROWN CASES RESERVED. 1856. A. I do not know, I have never seen it since my Sloggett's brother wrote the reply to it; I believe it has been destroyed. Q. Did you ever promise your brother Richard to make it right with your father if he would write it? A. I never said so. Q. Did you promise your brother to take it to your father for his approval ? A. I did, and I took it to my father accordingly. Q. Did he caution you against sending it? A. No, I believe not. Q. Did you tell your brother that your father had refused ? A. I did, before he replied to it. He asked me the nature of it, and I told him (a). This case was argued on the 26th of April, 1856, before Jervis C. J., Coleridge J., Cresswell J., Erle J. and Martin B. J. D. Coleridge (with him M. Bere), appeared for the Crown, and Collier (with him E. V. Richards), for the prisoner. Collier, for the prisoner. The examination before the Commissioner was a compulsory examination, and was therefore inadmissible in evidence against the prisoner. The answers of witnesses in ordinary cases at Nisi prius, and in criminal cases where they have not objected to answer, are no doubt admissible against them on a subsequent trial ; but there is a material distinction between evidence so obtained and (o) The learned Serjeant referred 157. Reg. v. Garbett, 2 Den. C. C. to the following authorities in the 237 ; 2 Car. & Kir. 474. Cases margin of the case. Rey.v.Wheater, collected in Taylor on Evidence, 2 Moo. C. C. 45 ; 2 Lewin's C. C. 2nd Edition, Vol. 1, p. 273, s. 821. CROWN CASES RESERVED. 661 the examination of a bankrupt in the Court of Bank- ruptcy, in which the answers are obtained by com- pulsion. By sections 117 and 254 of the Bankrupt Law Consolidation Act, 12 & 13 Vict. c. 106. (a), the Court may summon the bankrupt before it and examine him " touching all matters relating to his trade dealings or estate." It is compulsory upon the bankrupt to answer all questions that may be put to him ; he cannot refuse to answer, although his answer may tend to criminate him, and if he gives false answers on such examination he is subjected to the penalties of perjury. Re Heath (6) and lie Peaks (c) are authorities to shew that a bankrupt was bound under the former Bankruptcy Act to disclose his property, although an 1856. Sloggett's Case. (a) Section 117 enacts, "That the Court may summon any bank- rupt before it, whether such bank- rupt shall have obtained his certi- ficate or not, and in case he shall not come at the time appointed by the Court (having no lawful im- pediment made known to and al- lowed by the Court at such time), it shall be lawful for the Court, by warrant, to authorize and direct any person or persons the Court shall think fit to apprehend and arrest such bankrupt and bring him before the Court ; and upon the appearance of such bankrupt, or if such bankrupt be present at any sitting of the Court, it shall be law- ful for the Court to examine such bankrupt, after he shall have made and signed the declaration con- tained in the Schedule (W.) to this act annexed, either by word of mouth or on interrogatories in writing, touching all matters relat- ing to his trade, dealings or estate, or which may tend to disclose any secret grant, conveyance, or con- cealment of his lands, tenements, goods, money or debts ; and to reduce his answers into writing, which examination so reduced into writing, the said bankrupt shall sign and subscribe." Section 254 enacts, " That any bankrupt or bankrupt's wife, who shall upon any examination upon affirmation, or after making and signing the declaration authorized or directed by this or any other act relating to bankrupts; and any person who shall upon any examination upon oath or affirmation, or in any affi- davit or deposition, or solemn affir- mation so authorized or directed ; or in any affidavit or deposition, or solemn affirmation, wilfully and corruptly give false evidence; or wilfully and corruptly swear or affirm any thing which shall be false, being convicted thereof, shall be liable to the penalties of wilful and corrupt perjury." (6) 2 Deac. & Chitt. 214. (c) Ibid, 226. 662 CROWN CASES RESERVED. 1856. indictment was pending against him for concealing Sloggett's it> and although his answer might tend to criminate Case. jjjnj . gjjj Erskine C. J., in his judgment in Re Heath, adopts the language of Lord Eldon in Ex parte Cossens (a), where his lordship says: "I con- ceive that there is no doubt that it is one of the most sacred principles in the law of this country that no man can be called on to criminate himself if he choose to object to it ; but I have always understood that proposition to admit of a qualification with respect to the jurisdiction in bankruptcy because a bankrupt cannot refuse to discover his estate and effects, and the particulars relating to them, though in the course of giving information to his creditors or assignees of what his property consists, that infor- mation may tend to shew he has property which he has not got according to law." The examination, then, is compulsory, and whatever is compulsory is inadmissible. In Meg. v. Wheater (b) the examination of a person taken on oath as a witness before commissioners in bankruptcy was received in evidence against him, on a charge of forgery ; but then he had been expressly cautioned by the commissioner and allowed to elect what questions he would answer, and it was assumed by the Counsel for the Crown that if he had not been so cautioned the deposition would not have been admissible. Even under those circumstances the Court was not unanimous in its judgment; but this is not the case of an ordinary witness, examined before the Court of Bankruptcy, but is the case of the bankrupt who is compelled by statute to answer. The principle laid duwn in Ex parte Cossens is recognised by Lord Lyndhurst in Ex parte Kirhy (c). Ca) Buck. 540. {b) 2 Moo. C. C. t'j. (c) 1 Mont, & Mac. 225. CROWN CASES RESERVED. 663 The statute deprives a bankrupt of his common 1856. law right; at common law a witness may object to sloggbtt's answer any question which he thinks will tend to his ^*'^- crimination, although the answer would not lead to an immediate conclusion of guilt ; Cates v. Hard- acre (a) ; but this statute deprives the bankrupt of that privilege, and the examination was therefore compulsory, and is inadmissible. Erle J. — It would not have made any difference to the creditors whether the bankrupt told the truth or not about the letter ; it was not a question relating to the bankrupt's property or estate. Cresswell J. — By the statute the bankrupt must make a full discovery of his property ; but the ques- tions here asked of the bankrupt do not appear to be upon " matters relating to his trade dealings or estate." Collier. It ma}' be said that where the question ])Ut to a bankrupt does not touch his trade dealings or estate, he might claim the privilege of not answer- ing as upon an ordinary trial ; but a bankrupt, whilst under examination, ought not to be called upon to decide whether a question does or does not relate to his trade dealings or estate; he cannot be expected to be so conversant with law as to be able to distinguish, whilst under examination, between such questions as have, and such as have not, that relation. The whole examination is virtually compulsory. But I also contend that this was a question relating to the matters referred to in the section, as it had reference to a sum of 300/., which the bankrupt had in his trade. I also submit whether any part of this examination could be used, as during a portion of it the bankrupt was in actual custody; the latter portion of the exa- (fl) 3 Taunt. 424. 664 CROWN CASES RESERVED, 1856. mination being on that ground inadmissible the whole Sloggett's ought to have been rejected. ^^'^°' Coleridge, for the Crown. The only question is whether this was a voluntary examination, and it is submitted that it was. Witnesses in ordinary cases are bound to answer questions which are unpleasant to them, and may be committed if they refuse to answer, and in that sense all examinations may be said to be involuntary ; but it cannot be contended, that where a witness gives an answer under the pressure of cross-examination, such answer is, on that ground, inadmissible iu evidence against him. The only ground upon which a witness can object to his answers being used as evidence against him, is that he had the right to refuse to answer, and that he claimed his privilege and it was refused ; any thing he then said would not be afterwards admissible against him. Beg. V Garbett (a). In this respect no distinction iu principle can be made between the examination of a bankrupt and an ordinary examination at Nisi Prius. In this case the bankrupt did not claim the protection of the Court, and that protection had not been refused ; the exatnination was therefore voluntary and admis- sible. In Beg. v. Wheater there was a criminal charge pending against the witness at the time he was under examination, and there was therefore a very good reason why the Commissioner should caution him, and the fact that such caution was given will account for the apparent qualification introduced into the report of that case. The obiter dicta, even of a great Judge, may have been improvident, and that of Lord Eldon, in Ex parte Cossens, may possibly not be such as can be supported ; (n) 1 Den. C. C. 236. CROWN CASES RESERVED. 665 but looking at the res judicata, and the whole of the 1856. facts, that case is ia favour of the Crown ; and the sloggett's same remarks apply to the judgment of Lord Lynd- Case. hurst in Ex parte Kirby. Collier, in reply. Jervis C. J. — I am of opinion that in this case the examination of the prisoner in the Court of Bank- ruptcy was properly received and was admissible in evidence against him. In deciding this it is unneces- sary to express any opinion on the question whether the examination would have been admissible if it had been directed solely to the matters which the bankrupt is bound to answer by virtue of the Act of Parliament. I do not concur with Mr. Collier in the second ground, upon which he contended that the examination was compulsory and inadmissible. He contends that, admitting that the commisioner has only power compulsorily to examine the bankrupt " touching all matters relating to his trade dealings or estate," the matters upon which the bankrupt may be questioned may be so involved that he could not be expected or required to discriminate between those which relate to his trade dealings or estate, which he is bound to disclose, and those which do not, and which, therefore, he might object to answer, and therefore that the whole examination is compulsory. That is not the test ; the test is, whether he may object to answer. If he may, and he does not do so, he voluntarily submits to the examination to which he is subjected, and such examination is admissible in evidence against him. This examination was not touching any matters relating to the trade dealings or estate of the bankrupt; he might have objected to the examination, but he did not do so ; the exami- nation was therefore voluntary and admissible. Coleridge J. — I am of the same opinion, and upon the same grounds. Case. 666 CROWN CASES RESERVED. 1856. Cresswell J I am entirely of the same opinion. Sloggett's I will express no opinion as to what was said by Lord Eldon and Lord Lyndhurst in Ex parte Cossens and Ex parte Kirby without looking more into those cases. The rule of the common law is, that a man is not bound to criminate himself It may be that, in certain matters, section 117 of the Bankrupt Act has deprived the subject of the privilege of refusing to answer ; but supposing that to be so, and that the bankrupt is bound to answer, and can no longer claim the protection of the common law, the questions put to the bankrupt in this case did not relate to the matters within the section ; and as the bankrupt did not object to answer those questions the examination was admissible. Erle J. and Martin B, concurred. Conviction affirmed. AN INDEX TO THE PEINCIPAL MATTERS. ABANDONIlSfa CHILD. If a woman mlfully abandons her infant cliild of too tender years to provide for itself, in order to render her indictable at common law, it is necessary to aver and prove an injury to the health of the child ; and it wiU not be suffi- cient to support an averment that the health of the child had been greatly and materially injured, to shew " that the child had suffered injury, but not to any serious extent." Beg. v. PMlpott, 179 ABDUCTIOlSr. A girl under the age of 16, having by persuasion been induced by the prisoner to leave her father's house and go away with him with- out the consent of the father, left her home alone by a pre-concerted arrangement between them and went to a place appointed where she was met by the prisoner ; and TOt. I. then they went away together some distance, vnthout the inten- tion of returning : — Held that there was a taking of the girl out of the father's possession within the meaning of the statute 9 Geo. 4. c. 31. s. 20., by the prisoner when he met the girl and went away with her at the appointed place, as up to that moment she had not absolutely renounced her father's protection. Held also that such taking need not be by force actual or con- structive, and that it is immaterial whether the girl consents or not. Meg. v. Manhletow, 159 ACCESSOET. See Laecenx (1). ACCOMPLICE. The rule that a jury should not con- vict on the unsupported evi- dence of an accomplice is a rule D D D G68 INDEX TO THE PRINCIPAL MATTEES. of practice only, and not a rule of law. Semble, that a Judge skould advise the jury to acquit, unless the testimony of the accomplice be corroborated, not only as to the circumstances of the offence, but also as to the participation m it by the accused, and that where there are several prisoners, and the accomplice is not confirmed as to all, the jury should be di- rected to acquit the prisoners as to whom he is not confirmed ; but held, that this being a rule of practice only, if a jury choose to act on the unconfirmed testimony of the accomplice, the conviction cannot be quashed as bad in law. Bey. v. Stuhhs, 555 ADMIEALTY, COUET OF. Power to administer oath in, 251 ADTJLTEEEE. See Laecent (10). AGGEAVATION. See PuirisHMENT. ALEHOUSE ACT. Nonpayment of penalties under the Alehouse Act. See Misdemeakob (2). AMENDMENT. See Indictment (1). Ybedict. Amendment after verdict, 344. 365 AEEEST. Unlawful arrest by a constable, 858 AEEEST OP JUDGMENT. See Eeceiting (2). EOBBEET (2). Wbere an act of Parliament upon which an indictment was framed was repealed after the indictment was found by the grand jury, but before plea pleaded : — &ld, that the judgment must be arrested. Beg. V. Denton, 3 AESON. See Notice to Peodtjce. ASSAULT. See EoBBEET (1). Lawtttl Appsehension. ATTEMPT. See CouNTEEi'EiT Coin (2). conspieact (3), Paise Peetences (3), (6). EOBBEET. AUTEEPOIS ACQUIT. As to plea of in embezzlement, see Beg. V. Moah, 626 BAIL. 1. The prisoners were committed by the warrant of the coroner of S. and also by warrant of justices of that county on a charge of vrilful murder, they having on their own confession acted as seconds in a duel ia which one O. met his death : — Held, that the circum- stances that the duel was a fair one, and that the prisoners and other persons concerned in the duel were foreigners, ignorant of INDEX TO THE PEINCIPAL MA.TTEES. G69 tte fact that by the law of Eng- Icmd killing an adversary ia a fair duel amounted to murder, formed no ground for admitting the ac- cused to bail. Seld, also that, although the Court of Queen's Bench, as the sovereign court of criminal juris- diction, has iu all cases the power to admit to bail, yet that in its discretion where the crime is of high nature, the evidence clear, and the punishment heavy, it wiU not admit persona committed for such an offence to bail. Beg. v. Ba/rronet and Another, 51 2. In moving for a certiorari to bring up depositions taken before a coroner or magistrates with a view to admitting a party com- mitted upon them for trial on a charge of murder or manslaughter to bail, it is the proper course to produce copies of such depositions verified by affidavit, and on them to ground the application. The principle upon which bail is refused or granted in cases of murder and capital offences as laid down in Meg. v. Ba/rronet and Another, p. 51, confirmed. Beg. v. Barihelemy and Another, 60 BAIL IN EEEOE. See "Weit op Eeeoe. BAILMENT. See Laecent. BANKETJI'TCT. 1. On an indictment against a bank- rupt under sect. 253 of the 12 & 13 Vict. c. 106, for, within three months next preceding the filing of a petition in bankruptcy, ob- taining goods on credit under the false colour and pretence of deal- n D D 2 ing and carrying on business in the ordinary course of trade, it is necessary for the prosecution to prove, not only the petition to and adjudication by the Court of Bank- ruptcy, but also the preliminary matters, viz. the petitioning cre- ditor's debt, the trading and the act of bankruptcy. The actof bank- ruptcy relied upon being the fil i ng of a petition in the Court for Ee- lief of Insolvent Debtors, a copy of the petition, certified as required by sect. 239 of the above statute, was put in evidence, but there was no proof of the date of the fihng except the indorsement at the back of the petition. Held, that such indorsement was no evidence of the date of the filing of the petition, and therefore no evidence of the act of bankruptcy. Beg. V. Lcmds alias White, 567 2. The defendant (one of two bank- rupts and partners) was indicted under 12 & 13 Vict. c. 106. s. 251. for not suMendering. Upon the evidence it appeared, and the jury foimd, that the bankrupts both left this kingdom before any proceed- ings in bankruptcy had been taken against them, believing that they should be made bankrupts, and that they staid abroad with the intent to defraud their creditors by depriving them of their right to examine the bankrupts, and to make them responsible. On the trial, the proceedings in bankruptcy were put in, and it appeared that there were erasures and interlineations in the affidavit verifying the petition for adjudi- cation. Held, that the presump- tion of law was, that the affidavit was in the same state as when it was sworn ; as to alter it after it was sworn would be an act of fraud and misconduct which would not be presumed. The petition in bankruptcy was allotted by ballot to Commissioner 670 INDEX TO THE PEINCIPAL MATTERS. Q., but the subsequent proceed- ings were either before Commis- sioner H. or Commissioner F. Held, that ther were not inyalid on that account. The duplicate adjudication was, after the bankrupts had left the kingdom, left at their last usual place of business, and on the same day the property of the bankrupts was removed therefrom, and the place looked up by the messenger of the Court of Bankruptcy ; but the notice was left on the premises, and seen there two or three weeks afterwards. Subsequently the summons to surrender was left at the same place, which was unlocked for the purpose and then locked up again ; before the trial the place was searched, and neither adjudication nor notice was found ; but notice to produce them was served on the prisoner forty-eight hours before the trial. Held, that the duplicates of those docu- ments were admissible in evidence. In the adjudication, and other proceedings previously to the ad- vertisement in the Gazette, the bankrupts were described as of M. Lane and C. Lane, in the city of London, colonial brokers, and of W. Lane, in the county of MM- dlesex, distillers. In the adver- tisement in the Gazette the de- scription was the same, except that W. Lane was said to be in the county of Ussex. Seld, that the notice in the Gazette was not insuificient on this account. The bankrupts did not sur- render. The summons or notice to surrender was issued by Com- missioner -H"., the proceedings having as before stated been allotted to Commissioner G. Held, that this was no valid objection to the summons. The notice was to appear on one of two days, the first of which had expired before the summons was served. Held, that this wag sufficient service, as the last of the two days was the day limited according to the statute for the surrender. The notice was to surrender before Commissioner G., but on the day limited for the surrender Commissioner G. did not sit, but Commissioner F. did. Held, that this formed no ground of objec- tion, as one Commissioner could legally sit and act for another. There was no evidence that the prisoner had actual knowledge of the adjudication and notice to surrender; but the jury found that he went abroad with the belief before stated, and stayed abroad with the intent before stated. Held, that knowledge was not required by the statute, and that if the notice to surrender was duly served, this objection could not prevail. This being a joint fiat against the prisoner and his partner, and only one duplicate adjudication and one duplicate notice to sur- render having been served at the last place of business of the bank- rupts : Held, by a majority of the Judges, that this service was in- sufficient ; that a separate notice to surrender ought to have been left for each of the bankrupts ; and that the conviction must therefore be quashed. Beg. v. Gordon, 686 3. Where a bankrupt is examined before a commissioner in bank- ruptcy touching a matter not relating to his trade dealings or estate, and does not refuse to answer on the ground that the answer would tend to criminate him, but answers without any objection : Seld, that his answers were voluntary, and that his ex- amination was admissible against him on a subsequent criminal charge. Queere, whether if the INDEX TO THE PEINCIPAL MATTEES. 671 examination had been confined to matters relating to his trade deal- ings or estate, such examination would not then have been com- pulsory and inadmissible. Beg. v. Sloggett, 656 BIGAMY. The prisoner, a British subject resident in England, married in Scotland, accormng to the law of Scotland, a woman resident in England, and while she was alire married in Scotland, according to the law of Scotland another woman resident in England. Seld, that he was properly convicted of bi- gamy in England, under sect. 22 of 9 Geo. 4. c. 31. Beg. v. Top- ping, 647 Proof of marriage in Scotland, 32 CASES COISTSIDEEED AND OBSEEVED UPON. Ex parte CossEirs(Buck, 540). Beg. V. Sloggett, 656 KiEBT (1 Mont. & Mac.). Beg. V. Sloggett, 656 Eeg. v. Aston (2 C. & K. 413). Beg. V. Sarris, 344 Eex v. Clikch (2 East, P. C. 938). Beg. v. Snellmg, 219 j).Coi)EiNaTON(lCar.&P.661) Beg. V. Eagleton, 515 V. Geote (iMoo. C. C.) 447). Beg. V. Moah, 626 V. Jackson (Euss. & Ey. 487). Beg. V. Clothe, 397 Eeg. v. Keneick (5 Q. B. 49). Beg. V. Eagleton, 515 V. Ledbbttee (3 Car. & Kir. 108). Beg. v. Beeston, 405 V. Meadows (1 C. & Kir. 399). Beg. V. MmMetoio, 159 Ebi v. Ptwell (1 Stark. N. P. C. 402). Beg. r. Carlisle and Brown, 337 Eeg. v. Eathbone (2 Moo. C. C. 242). Beg. v. Shepherd, 606 Eex v. Eeed (7 Car. & P. 848). Beg. V. Oates, 459 Beg. V. Eagleton, 515 V. Smith (Euss. & Ey. 339). Reg. V. Beeston, 405 Eeg. v. Snowlet (4 C. & P. 390). Beg. V. Harris, 344 V. Speaes (2 Leach, C. C. 825). Reg. V. Read, 257 Eex v. Thompson (1 Ey. & Moo. 78). Reg. V. Simpson, 421 V. "WooLLET (1 Den. C. C. 559). Reg. v. Oates, 459 CASES OVEEEULED. Eeg. v. Botjlt (2 C. & K. 604). Reg. Y. Sharman, 285 V. Lyons (Car. & Marsh. 217). Reg V. Dolan, 436 CASE EESEEVED. Where a Judge who reserved a case died before signing it : Held, that the other Judge named in the com- mission was virtually present at the trial, and that th'erefore if he signed the case, it would be a sufficient compliance with the statute. Reg. v. Eeatherstone, 369 CENTEAL CEIMINAL COITET. See Ceetioeaei (1). CEETIOEAEI, 1. The Court of Queen's Bench has the power to issue a special writ or order in the nature of a cer- tiorari under 4 & 5 Wm. 4. c. 36. 672 INDEX TO THE PEINCIPAL MA~TTEES. for the removal of indictments for obtaining money under false pre- tences from the sessions men- tioned in that act to the Central Criminal Court, notwithstanding 7 & 8 Geo. 4. c. 29. s. 53. taking away certiorari in the case of indictments for ohtaining money under false pretences. Reff. v. Sill, 10 2. The defendant was convicted of perjury on an indictment removed at his instance by certiorari: Held, that the prosecutors, who were executors of a deceased per- son, were entitled to costs under 5 & 6 Wm. SfM.c.ll.,&&" persons grieved or injured," although the perjury occasioned them no actual damage, it being sufficient to bring the case within the statute that the perjury migTit have caused them damage, and the false oath of the defendant having put a dif- ficulty in their way which they were compelled to remove. Reg. V. Major, 13 3. "Where on the removal of an indict- ment from sessions by certiorari, a recognizance is given by sureties to answer for the appearance of the party indicted, for his pleading thereto, and at his own proper costs and charges procuring the issue joined to be tried, giving due notice to the prosecutor, and for his not departing, until discharged by the Court of Queen's Bench, such sureties are liable for the prosecutor's costs in case of the conviction of the party indicted under 5 & 6 Wm. § M. c. 11. ss. 2 and 3. Reg. v. Hodgson, 14 4. Where one of several defendants obtained a certiorari for the re- moval of an indictment into the Queen's Bench, and a procedendo was moved for on the ground that the certiorari improvide emanamit, inasmuch as the other defendants had not joined in the application for the writ, and had not under 5 & 6 Wm. Sf M. c. 11. entered into recognizances to pay the costs of the prosecutrix in case of their conviction: Held: that the de- fendant on whose application the certiorari was granted (being a person to whose responsibility there appearedno objection), might enter into recognizances to pay costs in case of the conviction of himself or of the other defendants, or either of them, and that under these circumstances the proce- dendo would not be ordered. Beg. Y. Frolert et al. 30 5. Where the expences of a pro- secution conducted by the city solicitor at the direction of the Lord Mayor of London, were paid out of the funds of the corpora- tion : Held, that the Court had no power to order the defendant to pay the costs of the prosecu- tion incurred by the removal of the indictment by certiorari on his conviction, such a case not being within 5 & 6 Wm. Sf M. c. 11. s. 3. Reg. V. Wilson, 79 CHILDEEN. See Abandoning Child. NBGiiECTiNa Child. CHEISTIAN NAMES. See Indictment (1) . CHOSE IN ACTION. See Laecent (8). COMPULSOEY EXAMINA- TION. See Banketjptct (3). INDEX TO THE PEINCIPAL MATTERS. CONCEALMENT OF BIETH. The prisoner, the mother of a child of which she has been recently dehvered, with the intention of conceaUng the dead body of the child from a surgeon, placed it under a bolster on which she laid her head. It was assumed in the case that she meant to remove the body elsewhere when an opportu- nity occurred. Seld, (Pollock 0. B. dissentiente), that she was upon these facts properly con- victed of endeavouring to conceal the birth of the child by secretly disposing of the dead body, as it is not necessary in order to con- stitute that offence under 9 Geo. 4. c. 31. s. 14., that the body should be put in a place which is intended to be the place of its final deposit. Reg. V. Perry, 471 CONFESSION. See Peisonee's Statement. 1. An inducement to confess in the shape of a threat was held out to the prisoner, who was suspected of an offence, by a person having no authority, and without the nature of the charge being stated, but in the presence and hearing of a person who had authority. Subsequently the nature of the charge was stated by the same person in the same presence and hearing, and thereupon a confes- sion was made. Seld, that the confession was not admissible. Reg. V. iMcMiwrsl, 245 2. The prisoner, a maid servant, was indicted for setting iire to a farm building of her master's. She was taken into custody by a policeman. She endeavoured to get away, but was told she was a prisoner on the charge of arson. She de- sired to change her dress, and was permitted to do so, having first 673 been given into the charge of Mrs. A., a married daughter of the master, but having no control over the prisoner by reason of any relationship of master and servant. Whilst alone with Mrs. A., the prisoner being in custody, the former said to the prisoner, " I am very sorry for you ; you ought to have known better ; tell me the truth whether you did or no." The prisoner said, "I am inno- cent." Mrs. A. replied " Don't run your soul into more sin, but teU the truth." The prisoner then made a full confession. Held, that there was neither an autho- rity to make any inducement, nor any inducement or threat, and that the evidence was admissible. Meg. V. Sleeman, 249 CONSPIEACT. 1. Where there is a general count for conspiracy the defendant is entitled to have particulars of the specific charges intended to be relied on in support of such gene- ral count, and an affidavit that the defendant does not know on what the prosecution intend to rely is not necessary. Reg. v. Prohert, et al., (note) 32 2, Indictment alleged that S. sold B.a. mare for 39l. ; that while the price was unpaid, B. and O. con- spired by false and fraudulent representations to S. that the mare was unsound, and that P. had sold her for 271., to induce 5. to accept a less sum of money in payment for the said mare than P. had agreed to pay S. for the same, and thereby to defraud S. of 121. of the price. It was proved in evidence that S. had sold the mare to be as alleged, and had agreed to trust him for the price. That P. afterwards, together with C, falsely represented to S. that 674 INDEX TO THE PEINCIPAL MATTERS. the mare was unsound of her wind, and that she had been examined by a veterinary surgeon, who had pronounced her a roarer. JB. afterwards told S. that in conse- quence of the unsoundness he had sold the mare for 271. only (which was false), and persuaded S. to receive that sum in satisfaction of his claim, but no receipt or other discharge was given. Held, that, although the acceptance of the 27Z. could not be pleaded in satis- faction of the larger sum, the indictment was sustainable, and that the facts proved in evidence did sustain it. Reg. v. Carlisle and Broion, 337 3. The first count of the indictment charged that the prisoners intend- ing to defraud one I. O. did con- spire " to cheat and defraud the said I. G. of a certain large sum of money, to wit 201." The second charged a conspiracy by false pretences " to obtain from I. Q, a large sum of money, to wit 20Z., and to cheat anddefraud him thereof." The third count charged a conspiracy by false pre- tences " feloniously to steal from the said I. Cf. a large sum of money, to wit 20Z." The fourth count charged an attempt by false pretences to obtain "from the said I. Q. the sum of 20Z. with intent to defraud." The fifth and last count charged that the pri- soners by false pretences did attempt to steal " from the said I. O. a large sum of money, to wit 20Z. of the monies of the said I. G," The prisoners were found guilty and judgment was passed on each count of the indictment. The prisoners were convicted on all the counts, and were sentenced to a distinct punishment on each. Seld, that the 5th and last was a good count, and that the convic- tion must therefore be affirmed. Semhle, that the first four counts were not good. Reg. v. Bullock and aark, 653 CONSTABLE. See Lawi'itl Appeehensioit. COEPtJS DELICTI. See Laecent (6). COEONEE. Admissibility of deposition taken before, 410 COSTS. See New Teiai. Ceetioeaei. On reserved case, 291, 436 COUNSEL. Simile that Court will assign coun- sel on reserved case, 433 COrNTEEEEIT COIN. 1. On an indictment for uttering counterfeit coin, in order to prove a guilty knowledge, evidence may be given of a subsequent uttering by the prisoner of counterfeit coin of a difierent denomination to that mentioned in the indict- ment. The difference in the de- nomination of the coia goes to the weight of the evidence, but not to its admissibility. Reg. v. Ibrster, 456 2. The prisoner, with the intent to coin counterfeit half-dollars of Peru, caused to be made and pro- cured in this country dies neces- sary for the purpose of making such counterfeit coin, but which would not alone produce it ; but the prisoner intended to procure the rest of the necessary appara- ratus for the purpose and with INDEX TO THE PRINCIPAL MATTEES. 675 the intention of using the entire apparatus, when procured, in making the counterfeit coin. The jury found that the prisoner in- tended to make only a few of the counterfeit coins in England, by way of trying whether the appa- ratus would answer before send- ing it out to Peru to be there used in making counterfeit coin. Ileld, 1. That to make a few coins in England with the object stated woiild be to commit the offence of making counterfeit foreign coin within the statute 37 Geo. 3. c. 126. B. 2. 2. That the procuring the dies was an act in furtherance of the criminal purpose sufficiently proximate to the offence, and suf- ficiently shewing the criminal in- tent to support an indictment founded upon it for a misdemea- nor. Beg. V. Soberts, 539 3. The prisoner was indicted ander the 2 Wm. 4. c. 34. s. 8. for hav- ing in his possession counterfeit coin, knowing it to be counterfeit, and with intent to utter and put off the same. The police officer who searched the prisoner found upon him, in different pockets of his dress, four counterfeit crowns of the same date and mould, thirteen counterfeit half-crowns of the same date and mould, fourteen counterfeit shillings of the same date and mould, (each of the said counterfeit coins being wrapped in a separate piece of paper), and four shillings in good money. Held, that there was sufficient evidence to go to the jury that the prisoner knew the coin to be counterfeit, and that he intended to utter it. Beg. v. Jmrvis, 552 CEEDIT IN ACCOUNT. See False Pbetences (6). CEIMINAL INFOEMATION. See New Teiai. CEOSS-EXAmNATION. A. B. and O. were indicted for lar- ceny, and were separately de- fended. At the close of the case for the prosecution the Court de- cided that there was no case to go to the jury against C, and he was acquitted. O. was then called as a witness in defence of A., and gave evidence tending to criminate -B. On this B.'s Counsel claimed the right to cross-examine C, and address the jury in reply. This the Court refused to allow, but offered to put to 0., through the chairman, such questions as ^.'s Counsel might suggest. A. and B. were both convicted. Seld, that 5.'s Counsel had a right to cross-examine O. and to "reply on his evidence, and that the convic- tion of B. must be reversed. Qucsre, whether he would have had that right if the evidence of G. had not tended to criminate B. Semble, that this Court will in its discretion assign Counsel for a pri- soner. Beg. V. Bv/rdett, 431 CUTTING AND WOUNDING. See Lawful Appeehensiok. DESCEIPTION, MATTBE OF. See Indictment (1). • DEPOSITION. The prisoner was charged before a magistrate with feloniously wound- ing A. with intent to do him griev- ous bodily harm, and the deposi- tion of ^. was taken under 11 & 12 676 INDEX TO THE PEINCIPAL MATTEES. Viot. c. 42. s. 17. A. subsequently died of the wound, and the pri- sioner was indicted for his murder. Seld, that on the trial of the pri- soner for the murder the deposi- tion of A. might be read in evi- dence ; as, although the deposition was not taken on the same tech- nical charge as that for which the prisoner was indicted, it was ia fact the same case, and the pri- soner had had fuU opportunity for cross-examination. Semble, that if the charge on the two occasions had been substantially different, the deposition would not have been admissible. Reg. v. Bees- ton, 405 Admissibility of deposition taken before coroner, 410 2. The prisoners were convicted of larceny. On the trial the prose- cutor not being in attendance, his deposition (which had been duly taken before the committing ma- gistrate) was received in evidence, it appearing that he was not ab- sent from an iatention to defeat justice, but that being a foreigner, who, at the time the larceny was committed, was serving on board a foreign vessel, he had returned to his own country, and was, at the time of the trial, residing abroad. Held, that the deposition was in- admissible. Reg. V. Austin and Turner, 612 DUEL. See BaiIi. EMBEZZLEMENT. See Laecekt (3), (7). 1. The prisoner, who was clerk to the prosecutor, was indicted ia three different counts for embez- zling certain moneys belonging to his master. The evidence shewed that the prisoner had received at different times several sums of money from the prosecutor, a dealer in skins, for the purpose of purchasing skias. The prisoner obtained the skias on credit and applied the money to his own use, but debited., the prosecutor in his day cash-book with several sums of money as having been paid for the skins. The jury found the prisoner not guilty of embezzle- ment, but guilty of larceny. Held, that the conviction was wrong. Reg. V. Qoodenoiigh, 210 2. The prosecutor had contracted vrith the Qreat Northern Railway Gompamy for finding and providing them with necessary horses and carmen for the purpose of convey- iag and delivering to the custom- ers of the company the coals of the company in their own wag- gons, and that he or his carmen should, day by day, duly account for and deliver to the company's coal manager all moneys received in payment for coals so delivered. The delivery notes, as well as re- ceipted invoices of the coals, were handed to the carmen of the pro- secutor, and the former were taieu to his office, but the iavoices, re- ceipted by the company, were left with the customers on payment of the amount. The prisoner was the servant of the prosecutor, employed as his carman ia the delivery of coals pursuant to the contract, and it was his duty to pay over, direct to the clerks of the company, such moneys as he might receive for coals. The pri- soner delivered coals to one of the company's customers, and brought the delivery order to the office to be entered ; he received for the coals the sum of 51. 10s., leaving the receipted invoice with the cus- tomer, which sum he converted to his own use. He was indicted and convicted of embezzling the INDEX TO THE PEINCIPAL MATTEES. 677 moneys of the prosecutor who had contracted with the company. Seld, that there was such privity as to make the prisoner the agent of the company in receiving the money, and that such money was not received for or on account of the prosecutor, but for or on account of the railway company. Reg. V. Beavmont, 270 3. G. was the prosecutor's servant, and received over the coimter for the prosecutor a piece of marked money which the prosecutor, who suspected the prisoner, had given to another to go and buy spirits of the prisoner at the prosecutor's public house. The prisoner made away with the money. Seld, that he was guilty of embezzlement. Beg. V. Gill, 289 4. 0. was indicted for embezzlement, and for the purpose of proving his identity as the person receiving certain monies from S. Sf Go. for the prosecutors, an entry in a book of S. Sf Co. was read in evidence. The account was kept in four columns, ia the first of which was entered the dates ; in the second the name of the person on whose behalf the money was received ; in the third the signature of the person receiving ; and in the fourth the amount of the particular pay- ment made by 8. Sf Go. Seld, that the entry as explained by the evidence amounted to a re- ceipt, and that even for the pur- pose of proving identity the whole entry could not be read without a stamp, and that therefore the conviction was wrong. Meg. v. 308 5. H. was tried and convicted at the sessions for the county of W. on an indictment charging him with embezzling certain moneys as ser- vant to the inhabitants of that county. It appeared that H. was the miller of a mill in the gaol of the coxinty, that the offence, if any, took place entirely within the gaol, which is situate within the county of the city of W., more than 500 yards from the county of W., and that the county of the city of W. has a separate jurisdic- tion and its own Eecorder and Quarter Sessions. It was the duty of -H". to direct persons bringing grain to be groimd at the mill to obtain at the porter's lodge a ticket, specifying the quantity of grain brought. The ticket was his order for receiving the grain, and it was his duty to receive the grain with the ticket, to grind it, to receive the money for the grinding, and to account for the money to the governor of the gaol, who accounted to the county treasurer. H. had no right to grind any grain at the mill for his private benefit, nor without a ticket as above mentioned. S. was appointed to his situation by the magistrates of the county at a weekly salary, which was paid to him ont of the county rates by the governor of the gaol, who received the money from the county trea- surer. H. received and ground grain without a ticket, and with- out directing the persons bringing the grain to obtain one. He re- ceived the money for the grinding, and did not account for it to the governor of the gaol, but applied it to his own use. Held, that H. could not be convicted of embezzle- ment, as the conclusion to be drawn from the facts was, that he had made an improper use of the mill by grinding the com for his own benefit, and consequently that he did not receive the money for or on account of his masters. Qw^re, whether the Court of Quarter Sessions had jurisdiction to try the case ? Qucsre, whether 11. waa rightly 678 INDEX TO THE PRINCIPAL MATTEES. charged as servant of the inha- bitants of the county ? Semhle, per Cbesswell J., that after verdict this Court has no power to amend a count so as to make a juiy party to the finding. Beg. V. Harris, 344 6. The prisoner was convicted on an indictment charging him with embezzlement in one count as servant to A., and in another count as servant to -B. ' A. and B. were two among other sewers of gloves residing at C, the manu- facturers of the gloves carrying on business at D. The prisoner was a carrier residing at C, and was exclusively employed between the glove sewers at C. and the manufacturers at D. The sewers were not known to the manufac- turers, but when a sewer wanted work the prisoner gave her name and a number to the manufac- turers, and received from them unsewn gloves for her to sew. Each sewer, having her number, sent back by theprisoner the gloves when sewn with her name pinned to the parcel. These parcels the prisoner delivered to the manu- facturers, and if the parcels were found correct he received the total amount due to the sewers in one sum, and fresh parcels of unsewn gloves. His duty then was to de- liver to each sewer her fresh work and also the money due to her, deducting his charge. If any work was missing the manufac- turers looked to the sewer if found, but if not they looked to the pri- soner for it. The prisoner, accord- ing to the coiu'se above stated, took out numbers for A. and B., and having received money for both of them from the manufac- turers, denied the receipt of the money, and applied it to his own use. Held, that the prisoner was not a servant but merely a bailee, and was only guilty of a breach of trust and not of embezzlement. Beg. V. Gihhs, 445 7. The prisoner was convicted on an indictment charging him with embezzlement. It appeared in evidence that he was store keeper and clerk at a county gaol, and that it was no part of his duty (which was defined by written in- structions) to receive money ; but that he had from time to time received moneys in the absence of the governor of the gaol, and to the knowledge of some of the justices. It was submitted on the part of the prisoner, that he had not received the money by virtue of his employment, and that that question ought to be left to the jury; but the Eecorder directed the jury, that if they believed that the prisoner received the money, he did receive it by virtue of his employment. Held, that the ques- tion whether the prisoner received the money by virtue of his em- ployment ought to have been left to the jury, and that the conviction was wrong. Reg. v. Armcm, 575 8. The prisoner was convicted on an indictment under section 1 of the 2 Wm. 4. c. 4. The indictment alleged that the prisoner, being in the public service and entrusted by virtue of his employment with the receipt and custody of certain money, the property of the Queen, to wit, to the amount of 5000Z., fraudulently and feloniously ap- plied the same to his own use and benefit, and so feloniously stole the same. By the evidence it ap- peared that he was an officer of Inland Revenue, and received cer- tain taxes, in respect of which he was allowed to retain in his hands a balance of about 300Z. to meet contingent expences, that it was his duty to render accounts to certain inspectors, and that these accounts when rendered shewed a INDEX TO THE PEINCIPAL MATTEES. 679 much larger balance in his hands than he was allowed to retain. That at last the G-eneral Surveyor of Inland Eevenue examiaed the prisoner's accounts, and produced to him a statement extracted from them, shewing a balance in his hands of upwards of 5000i!., which he admitted. The Surveyor then asked him if he was prepared to pay over that balance, or any part of it, and he said he was not. The Surveyor then reminded him that there was a balance of excise duties alone of about SOOl. stand- ing against him from the previous Monday, which was a receipt day, at T. The prisoner then took out 2551. in Bank notes, a check for 25Z. 8s. 4(?., and a money order for fourteen shillings, and said that that was all the money he had in the world. The Surveyor then asked what he had done with the rest, and he said he had spent it in an unfortunate speculation. Held, that there was evidence of the receipt of a particular sum of 3001., and of a misapplication of a part of it; and that therefore there was sufficient to support the con- viction. Qutsre, whether evidence of a general deficiency on a balance of accounts would alone have supported the indictment ? Quwre, whether evidence of such a general deficiency is sufficient to sustain an indictment for embez- zlement under 7 & 8 Geo. 4. c. 29. s. 47. ? Reg. v. Moah, 626 ENGEAVING PEOMISSOET NOTE. The prisoner was tried and con- victed on an indictment, framed upon the stat. 11 Oeo. 4 & 1 Wm. 4. c. 66. s. 18., for engraving upon a plate part of a promissory note, purporting to be part of the note of a banking company. It was proved in evidence that the prisoner, being possessed of a pro- missory note of the B. L. Banking Company, had cut out the centre of the note on which the whole promissory note was written ; and had procured to be engraved upon a plate merely the royal arms of Scotland and the Britannia (which formed part of the ornamental border), the said arms and the .Bri^oramia being respectivelyplaced upon the plate in the same posi- tion as that in which they would be found in a complete note of the company. The case stated that upon the facts submitted to the jury, the prisoner was rightly convicted, subject to the question, whether such an en- graving satisfied the words of the statute, as being an engraving upon a plate of " part of a bUl of exchange or promissory note pur- porting to be part of the biD. or note." Held, 1. That it did, as every part of what usually circulates as a note, the ornamental border as well as the obligatory words, is part of the note, "within" the meaning of the statute. 2. That in order to ascertain whether that which was engraved on the plate "purported" to be part of the note, extrinsic evidence was admissible ; and that, for that pur- pose, the jury might compare the plate with a genuine note of the company. Beg. v. Keith, 486 ESTEEAT. Eorm of plea to estreat, and repli- cation thereto. Reg. v. Hodgson, 14 EVIDENCE. In order to establish the fact of a marriage in Scotland it is neces- G80 INDEX TO THE PEINCIPAL MATTEES. sary that some witnesss conversant with the law of Scotland as to marriage should be called. And where a woman present at a mar- riage ceremony in Scotland, per- formed at a private house by a minister of a congregation — but whether or not of the kirk she did not know — stated that she herself had been married ia the same way; that parties always married in Scotland ia private houses, and that the parties after the ceremony had lived together as man and wife : — Held, that her evidence was insufficient to prove the law of marriage in Scotland or to establish a marriage in fact. Meg. V. Fovey, 32 See OoiSTESSioN. Deposition. Notice to Peodtjcb. Paeol Evidence. On plea of Justification. See LibeIi. Of abandoning child, 179 Of order for payment of money, 219 Evidence for the jury in Larceny, 280 Of neglecting to support child, 453 Effect of reception of inadmissible evidence, 458 Extrinsic evidence, 486 Of intention to utter counterfeit coin, 552 Of accomplice, 655 On indictment against bankrupt for obtaining credit under colour, 567 Of act of bankruptcy, 567 Of filing petition in Insolvent Court 567 On indictment against bankrupt for not surrendering, 586 Voluntary statement byprisoner, 648 Admissibility of bankrupt's examina- tion, 656 Questions tending to criminate, 656 EALSE PEETENCES. 1. The indictment charged that the defendant by false pretences did unlawfully obtain from S. two bills of exchange for the payment of 150Z. respectively, and one bill of exchange for the payment of 250Z., with intent to cheat and defraud him the said B. : — Seld, bad on writ of error, as it did not appear who was the owner of the property so alleged to have been obtained by false pretences ; the statute 14 & 15 Vict. c. 100. not altering the law as settled prior to that act, that in an in- dictment for obtaining money by false pretences it was as neces- sary to state the ownership of property as in a case of larceny. Beg. V. Sill, 132 2. The prisoner was indicted for ob- taining money under fals& pre- tences. The evidence shewed that the prisoner in July, 1850, called upon prosecutrix and made false representations relative to a bene- fit club, but failed on that occa- sion to obtain any money. In August of the same year prisoner again called relative to the club, and referred to the previous con- versation. The jury returned a verdict of guilty, in effect finding that the money was obtained by reason of the false pretences made in these several conversations. Seld, that the jujy might con- sider the first and second conver- sations as one continuing repre- sentation, and that the conviction was right. Beg. v. Welman, 188 3. The defendant was indicted in Mngla/nd for a misdemeanor in attempting to obtain moneys from INDEX TO THE PEINCIPAL MATTEES. 681 Ij.S^ Cb., by false pretences. The defendant had a circular letter of credit marked No. 41, from J). 8. S{ Co. of Wew TorJc, for 210Z., with authority to draw on L. & Co. in Ziondon in favour of any of the lists of correspondents of the hank in different parts of the world for all or such sums as he might re- quire of the 210Z. The circular letters of credit of B. 8. Sf Oo. were each numbered with dis- tinctive numbers, and it was the practice of the correspondent on whom the draft was drawn, afbei: giving cash on such draft, to in- dorse the amount on the circular letter, and when the whole sum was advanced the last person making such advance retained the circtdar letter of credit. The de- fendant having procured from D. S. ^ Go. of New York a cir- cular letter of credit for 210Z., No. 41, came to Mnglcmd and drew drafts in favour of the named cor- respondents there in different sums, in the whole less than 210Z., retaining the circular letter, the sums so advanced being indorsed on the letter. He then went to St. Petersburg and there exhibited the letter of credit to W. Sf Co. of that place, a firm mentioned in the list of correspondents, the letter having first been altered by him by the addition of the figure 5 to 210, so converting it into a letter of credit for 5,210Z. He ob- tainedfrom that house several sums and finally a sum of 1,200Z., and an- other of 2,500Z., on drafts for those amounts on L. Sf Co. : W. Sf Co., forwarded these drafts to their house in London, who presented the draft for 1,200?. on L. Sf Oo. and required payment of it. L. Sf Go. having been advised of the draft No. 41 by D. S. Sf Oo. as a draft for 210Z. only, discovered the fraud and reftised to pay it. The defendant being afterwards found in Mnglcmd was taken into cus- tody and indicted as before stated. The jury found the prisoner guilty, and in reply to a question put by the learned Baron as to whether, although the defendant's imme- diate object was to cheat W. Sf Co. at St. Petersbv/rg by means of the forged letter of credit, he did not also mean that they or their cor- respondents, or the indorsees from them, should present the draft and obtain payment of it from L. Sf Co., and the jury further found that he did. Held, that if L. Sf Oo. had paid one of the drafts, the defendant could not in law have been found guilty of the statutory misdemeanor, and consequently that he could not be found guilty of attempting to com- mit the common law misdemeanor. Beg. V. Gwrrett, 232 4. G., secretary to a burial society, was indicted for falsely pretend- ing that a death had occurred, and so obtaining from the presi- dent an order on the treasurer in the following form : — " Bolton United Burial Society, No. 23, Bolton, Sept. 1st, 1858, Mr. A. Mitwistle, Treasurer. Please to pay the bearer 2Z. 10s., GreenhalgJi, and charge the same to the above society. Bdbert Lord, Benjamin Beswick, President." Seld, that this was a valuable security imder the 7 & 8 Geo. 4. c. 29. s. 53., as explained by the 5th section of the same statute. Beg. v. Green- Tialgh, 267 5. In an indictment for obtaining money under false pretences, the only pretence charged was that the defendant falsely pretended to one T. W. that he had received an order for payment of money from W. M. O. for the payment of a quarter's salair then due and owing to the defendant. It was proved that the defendant was G82 INDEX TO THE PEINOIPAL MATTERS. curate to the said W. M. C, aud that the defendant, after telling T. W. that he had received an order to go and receive his quar- ter's salary of L., and that L. was very ill and could not do it for him, asked T. W. to let him have the money, and shewed him a paper to this effect : " Eeceived of L. the sum of 25Z. for the Eev. W. M. Cs note." T. W. gave him 15Z., and the defendant gave him the foUowing receipt : " Ee- ceived from T. W. 151. on account of Eev. W. M. C.'s order for 25Z." T. W. in his evidence stated, that he had no doubt the paper pro- duced by the prisoner was genuine, and that he rested on that as much as on the other part of the trans- action ; that it contributed to pro- duce confidence, and that it was in consequence of what he saw, and what the prisoner said, and what the prisoner gave him, that he was induced to let the pri- soner have the money. T. W. also said that the defendant first told him that he had received a letter from W. M. C. that morning wish- ing him to go to L. and draw his quarter's salary, and that was part of the inducement to T. W. to let the prisoner have the money. The points left to the jury were, 1. Did the defendant make use of the pre- tence alleged in the indictment ? 2. Did T. W. part with his money in consequence of his belief in that pretence ? 3. "Was that pretence false ? 4. Did the defendant ob- tain the money with intent to de- fraud ? The jury returned a ver- dict of guilty. Held, 1. That there was no variance between the pre- tence laid, and the pretence proved. 2. That the actual substantial pre- tence on which T. W. parted from his money was the pretence of the order. 3. That the manner in which the case was left by the Court to the jury was right. Reg. V. Hewgitt, 315 6. The defendant contracted in writ- ing with the guardians of a parish to supply and deliver for a certain term to the out-door poor, at such times as the guardians should direct, loaves of bread of three and a half pounds weight each. The guardians were, during the said term, to pay the defendant after certain rates and prices for the bread so supplied, and of which a bUl of particulars should have been sent. The contract contained a proviso, that in case the defend- ant broke the terms of his contract ia any of the ways therein named, one of which was by a deficiency in the weight stated and charged for in the bill of particulars, the guardians might employ other persons to supply the bread, and charge the defendant with the costs of such supply above the price contracted for, and might retain any moneys due to the defendant under the contract at the time of such breach towards such costs, or the damageswhich the board might sustain, and might also put in suit against the defendant a bond which he then executed, and which was conditioned for the due perform- ance of his contract. The indictment contained ten counts, the first seven of which were in substance the same, and charged the defendant with a com- mon law misdemeanor, iu supply- ing and delivering, as such con- tractor, loaves of bread to different poor persons, which loaves were deficient in weight, intending to injure and defraud such poor per- sons, and to deprive them of pro- per and sufficient food and sus- tenance, and to endanger their healths and constitutions, and to cheat and defraud the said guar- dians. The three last counts charged the defendant with attempting to obtain money from the guardians by falsely pretending to the re- INDEX TO THE PEINCIPAL MATTEES. 688 lieving ofl&cer that he had delivered loaves of the proper weight. It was proved in evidence, that on a poor person applying for re- lief the relieving officer gave the applicant a ticket, the presentation of which to the defendant entitled him to receive a loaf; that the de- fendant received these tickets and gave to the poor persons present- iog them loaves of bread which the jury found were deficient in weight, and were so with the ItQowledge of the defendant. By the course of deaUng the defendant would return the tickets in the follovsdng week, with a state- ment iu writing of the number of loaves he had supplied, and the re- lieving officer would credit the de- fendant in account vrith the guard- ians vrith the amount, and the money would then be paid to him at the time stipulated in the con- tract. The tickets were so re- turned by the defendant, and he was credited in account accord- ingly ; but the fraud was disco- vered before the stipulated time for payment of the money had arrived. The jury found that the defendant intended to defraud the out-door poor, and that by return- ing the tickets to the relieving officer he intended to represent that he had delivered the loaves mentioned in them of the weights stated. Held, 1. That the first seven counts did not disclose an indict- able offence, as the delivery of loaves of less weight than that contracted for was a mere private fraud, no false weights or tokens having been used. 2. That the defendant was properly convicted on the last three counts of at- tempting to obtain money by false pretences, as the fraudulent representation made was of an an- tecedent fact; and that although the defendant had only obtained TOi. I. credit in account, and could not have been convicted of obtaining money by false pretences, he was nevertheless properly convicted of the attempt, his obtaining the credit in account being the last act depending on himself towards obtaining the money. QucBre, whether a sale of goods with a false representation of the weight or quality is an indictable offence ? Reg. v. 'Eagleton, 376, 615 7. The defendant was indicted for obtaining goods by false pre- tences. It appeared that he ob- tained the goods from the prose- cutors by pretending that he wanted them for one J. S., whom he represented as living at JV., and being a person to whom he would trust WOOL, and who went out twice a year to New Orleans to take goods to his sons. The jury found that all the represen- tations were false, and that the prosecutors, believing that the defendant was connected with the said J. S., and employed by him to obtain the goods, contracted with the defendant and not with the supposed J. S., and delivered the goods to the defendant for himself and not for J". S. Held, that the defendant was, under these circumstances, rightly con- victed of the offence charged in the indictment. Reg. v. Archer, 449 8. In an indictment for obtaining money by false pretences, the pretence averred in some of the counts was, that the prisoner falsely pretended that he having executed certain work there was a certain sum of money " due and owing" to him for and on account of the work, being parcel of a larger sum claimed by him; whereas there was not then " due and owing" to him such money SEE 684 INDEX TO THE PEINCIPAL MATTERS. being parcel of a larger sum. The false pretence averred in other counts was, that the pri- soner falsely pretended that there was " due and owing" to him the whole amount of a sum of money for and on account of certaia work executed by him ; whereas there was not then " due and owing" to him the whole amount of such sum of money, but only a smaller sum. Seld, that the ia- dictment was bad, inasmuch as a false pretence of an existing fact was not sufficiently alleged, and the averments would be proved by evidence of a mere wrongful overcharge. Reg. v. Oates, 459 See Ceetiobaei (1). conspieacy (2). Labcent (14). MriiNx Act. Venite. FBLOOTOrS TEESPASS. See Laecent (2). EOEEIGN COIN. See CoirifTEErEiT Coin. EOEaEET. 1. The prisoner was indicted for forging an order for the payment of money. The document was in the following form: " Holton, Mar. 31„ 1853. Sirs Pleas to pay the bearis Mrs. Smart the sum of eaight Hundred and 50 4 £i ten shillings for me. James Rmmey." Held that, though this document was not addressed to any one, it might be shewn by evidence to be an order for pay- ment of money, within the 11 Oeo. 4 & 1 Wm. 4. e. 66. s. 3., and for whom it was intended. Beg. Y. Snelling, 219 2. S. was indicted for uttering, with intent to procure himself to be appointed to the place of school- master, a forged document, pur- porting to be a certificate from a clergyman that he had the charge of a large school, and that he had conducted it under that clergy- man's superintendence with ability and success. Held, that the con- viction was good at common law, and that it is an offence at com- mon law to utter a forged instru- ment, the forgery of which is an offence at common law, and that the effecting of the fraud is immaterial. Reg. v. Sharman, 285 GAME. The defendant was convicted, under the 1 & 2 Wm. 4. c. 32. s. 30., of trespassing on land in the posses- sion and occupation of O-. S. in pursuit of game. Held, that the entry upon the land under that section must be a personal entry ; but it having been proved that the defendant was on the high- way in pursuit of game and not as a traveller, and that G. B. was the owner of the land on both sides of the highway : Held, that as the soil and freehold of the highway was in. O. B. as the owner of the adjoining land, there was a personal entry on the land by the defendant within the meaning of the statute. Qtusre, whether this decision appUes to sect. 9 of the Night Poaching Act, 9 Geo. 4. c. 69. Reg. v. Pratt, 502 GLANDEEED HOESE. See MlSDBMEANOS (1). GUILTY KNOWLEDGE. See CoxTNTEBEEix Conf (1). INDEX TO THE PRINCIPAL MATTEES. 685 HIGHWAYS. An indictment charged that certain part of a highway was out of re- pair. Part of the road had, at the time when the iudictment was preferred, been destroyed by the encroachments of the sea, and the surface of the existing road was in good repair up to where the same had been so destroyed, at which part the road was termi- nated by a perpendicular cliff caused by successive encroach- ments. Held, that there was no obligation on the parish to pro- vide an available carriage-road down to the beach, the encroach- ments of the sea having destroyed the road, so that the subject of repair was not in existence. This Court will not entertain a question of costs which is not within their jurisdiction, although it is ex- pressly agreed by a case reserved that the Court should have the same power with respect to such costs as the judge could legally have exercised at the trial. Reg. V. Inhabitants of Hornsea, 291 INDECENT EXPOSURE. The prisoner was indicted for a mis- demeanor at common law for an iadecent exposure of his person ia a public omnibus, iu the pre- sence and view of several persons. Held, that an omnibus is a public place sufficient to support the in- dictment. Held, also, that since the 14 & 15 Vict. c. 100., an in- dictment for a public nuisance need not conclude ad commime nocumentvm. Beg. v. Holmes, 207 INDICTMENT. 1. In an indictment, under 9 Qeo. 4. e. 69. s. 2., for assaulting a game- keeper of the Duke of Oambridge, the Duke was described as " George William Frederick Ohmrles Duke of Cambridge." It was proved on the trial that " George William" were two of his Christian names, but that he had other Christian names which were unknown to the witnesses, and were not proved. The jury found a verdict of guilty, and stated that they were satisfied with the evidence of the identity of the Duke. Held, 1. That the conviction was wrong, as matter of description in an indictment, though unnecessarily alleged, must be proved as laid. 2. That the Court of Quarter Sessions were not bound to amend at the trial ; but that, under the 14 & 15 Vict. c. 100. s. 24., they might in their discretion have made an amend- ment by which the conviction would have been supported, by striking out all the Christian names. 3. That an amendment, by striking out only the two names which were not proved, would have been wrong. 4. That all amend- ments should be made before a case goes to the jury. 5. That it was now too late to amend. Reg. V. Frost and Russell, 474 2. Por robbery, where evidence points to a felonious assaidt. See Reg. V. Mitchel, et al. (note) 19 3. Por bringing a horse infected with glanders into a public place. Beg. V. Henson, 24 4. Por non-payment of penalties un- der Alehouse Act. Reg. \. Dale, S7 5. For unlawfully obtaining and pro- curing obscene prints. Dugdale V. Reg. 64 6. Por indecent exposure of person. Reg. V. Holmes, 207 7. Por having in possession imple- ments of housebreaking. Beg. v. Bailey, 244 686 INDEX TO THE PEINCIPAL MATTEES. 8. Eor counterfeiting foreign coin, 540 See PEETiors Contiction. Eeceiting (2). INEOEMATlON. When it need be on oath. See Reg. V. Millard, 166 INQUISITION OF EOME, JtrDGMEifT OE. See Libel (2). JtTET. See Veedico?. JUSTIFICATION. See Plea op Jttstieication. LAECENT. 1. A. had the charge of the prose- cutor's warehouse, in which bags were kept ; £. for some years had been in the habit of supplying the prosecutor with bags, which were usually placed outside the ware- house, and shortly after so leav- ing them, either S. or his wife called and received payment for them. A. went into his master's warehouse and removed twenty- foiir bags which had been marked by his master, and placed them outside the warehouse ia the place where JB. used to deposit his bags before payment for them. Soon afterwards the wife of -B. came, and claimed payment for the said twenty-four bags. The prosecutor then sent for B., who, upon being asked respecting the bags, said that they had been placed there an hour previously by him, and demanded payment for them. The jury found that the bags had been so removed in pursuance of a pre- vious arrangement between A. and B. Held, that A. was rightly con- victed of larceny, and that B. was an accessory before the fact. Reg. V. Mrnvning and another, 21 2. WTiere a man driving a flock of lambs ffom a field, drove with the flock a lamb belonging to another person, without knowing that he did so, and afterwards, when he discovered the fact, sold the lamb, denied hating done so, and appro- priated the proceeds to his own use. Held, that he was rightly convicted of larceny ; for, having in the first instance driven away the lamb, the property of another, he committed a trespass, which, as soon as he resolved to dispose of the animal (the trespass continu- ing all along), became a felonious trespass. Reg. v. Riley, 149 3. The prisoner was sent by his master to the railway station for 10 cwt. of eoals, which, being sup- plied, were placed ia scales and put into the master's cart. The prisoner had been directed by his master to bring the coals to his house ; but on his way home, vrith- out authority, he disposed of a quantity of the coals to a third person. Held, that the prisoner was properly convicted of larceny. Reg. V. Reed, 168, 257 4. It appeared that the prisoner, without the knowledge or consent of a gas company, caused to be inserted a connecting pipe, with a stop-cock upon it, into the en- trance and exit pipes, and extend- ing between them ; and, the en- trance pipe being charged with the company's gas, he shut the stop-cock of the meter, and so consumed the gas without its pass- ing through the meter. Held, that the prisoner was properly con- victed of larceny, and that there was a sufficient severance of the gas in the entrance pipe to con- stitute an asportavit, Reg. v. White, 203 INDEX TO THE PEINCIPAL MATTERS. '687 5- JV. was indicted for larceny for stealing 6 lbs. of brass from a foundry. The only suggested evidence offered at the trial was that the prisoner, who was em- ployed upon the premises, had been seen to come into the place where the brass was kept. Seld, that there was not a sciniilla of evidence to go to the jury. Reg. V. Walker and Morrod, 280 6. B. was indicted for larceny. It was proved that he was seen com- ing out of the lower room of a warehouse in the London Docks, in the floor above which a large quan- tity of pepper was deposited, and where he had no business to be. , He was stopped by a constable who suspected him from the bulky state of his pockets, who said, " I think there is something wrong about you," upon which B. said, " I hope you wiU not be hard with me," and then threw a quantity of pepper out of his pocket on the ground. The vritness stated he could not say that any pepper had been stolen nor that any pepper had been missed, but that found upon B. was of a Kke description with the pepper in the warehouse. Held, that the prisoner upon these facts was properly convicted of larceny. Reg. v. Burton, 282 7. G. was indicted for larceny. The evidence shewed that he was the prosecutor's servant ; that it was his duty to receive and pay moneys for the prosecutor and make en- tries of such receipts and payments in a book which was examined by the prosecutor from time to time ; that the prisoner on one occasion shewed a balance in his favour of 2Z. by taking credit for payments falsely entered in the book as having been made by him, when, in fact, they had not been made by him, and that the prisoner received from his master the sum of 11. as a balance due to him. Prisoner was convicted. Held, that the conviction was wrong. Reg. V. Qreen, 323 8. W. was indicted for stealing a piece of paper which the evidence proved was a written agree' vient, but unstamped, to build certain cottages, and it was proved that work was still going on under the agreement at the time it was taken. Held (Parke, B., dissen- tiente), that this being a chose in action was not the subject of larceny. Reg. v. Watts, 326 9. The prisoner assigned his goods by deed to trustees for the benefit of his creditors. No manual pos- session was taken under the assignment, but the prisoner re- mained in possession of the goods himself, and while in such posses- sion he removed the goods, intend- ing to deprive the creditors of them. The jury found the pri- soner guilty of larceny, and found that the goods were not in the custody of the prisoner as the agent of the trustees. Held, that the conviction was wrong. Reg. v. Pratt, 360 10. The prisoner was charged with stealing twenty-two sovereigns and some wearing apparel. The prosecutor's wife took from the prosecutor's bed room thirty-five sovereigns and some articles of clothing, and left the house, say- ing to the prisoner, who was in a lower room, " It's all right, come on ! " The prisoner and the pro- secutor's wife were afterwards seen together, and were traced to a public house, where they slept together. When taken into cus- tody, the prisoner had twenty-two sovereigns on him. The jury found the prisoner guilty on the ground that he received the sovereigns from the wife knowing that she 688 INDEX TO THE PEINCIPAL MATTEES. took them witliout the authority of her husband. Held, that the conviction was right. Reg. v. JE'eather stone, 11. The prisoners were charged with stealing four sacks of barley and three sack bags from their master. It was proved in evidence that the prisoners and one B. were em- ployed by the prosecutor to wiu- now barley which he had mixed with canary seed. One of the pri- soners fetched several sacks from the prosecutor's house, which he and B. fiUed vdth barley. The two prisoners then sent B. home before the usual time. At twelve o'clock on the night of the same day, the carter went into the stable with a lantern, and shortly afterwards the two prisoners entered the stable. In a few minutes after this the prosecutor saw the carter in the loft above with a lantern, and found the two prisoners concealed under straw in the loft, and then in a dust bin ia a stable beneath he found three sacks full of barley, mixed with canary seed, which he swore was of the same kiad which he had mixed. It was no part of the duty of the prisoners to place the barley in sacks, or to put the sacks of barley into the dust biu. The jury found both the prisoners guilty. Held, that the evidence was sufi&cient to support the con- viction. Reg. v. Samways and 371 12. The prisoners were charged vidth steaHng certain moneys of Jane Jones. It appeared that the pri- soners, by false representations, induced the prosecutrix to pur- chase a dress for 25s., promising that if she would do so, they would give her another dress worth 12s. They then took a guinea out of her hand, (she neither consenting nor resisting, but being taken by surprise), and gave her a dress worth much less than a guinea, but refused to give her the dress which they had promised. The jury, upon these facts, found the prisoners guilty. Held, that the facts warranted the finding, as the Court was bound to assume that the jury were properly direct- ed, and that they found that it was part of the scheme of the prison- ers to obtain the money by means of a pretended sale, Reg. v. Mor- gan and Maeheowan, 395 13. The prisoner was indicted for stealing a purse and its contents. A purchaser at the prisoner's stall left his purse on it. The prison- er's attention was called to the purse by another person, and she treated it as her own and put it in her pocket, and afterwards con- cealed it. The prosecutor returned to the stal and asked the prisoner about the purse, but she denied all knowledge of it. The jury found that the prisoner took up the purse, knowing it was not her own, and intending to appropriate it to her own use ; but that she did not know who was the owner of the purse at the time she so took it. On this finding a verdict of guilty was recorded. Held, that the conviction was right inasmuch as the property was not lost property, but property mislaid under cir- cumstances which would enable the owner to know where to find it, and that, therefore, it was unnecessary to inquire whether the prisoner, when she took the purse, reasonably believed that the owner could not be found. Reg. v. West, 402 14. A quantity of wheat was in the possession of the prosecutors as bailees, and was deposited in one of their storehouses, under the care of one of their servants, who had authority to deliver it only on the order of the prosecutors or INDEX TO THE PEINCIPAL MATTEES. 689 their managing clerk. The pri- soner, who was also a servant of the prosecutors, by a false state- ment, induced the servant, under whose care the wheat was, to allow him to remove part of the wheat, which he carried away and appropriated to his own use. Held, ' that under these circum- stances the prisoner was properly convicted of larceny. Reg. v. Robins, 418 15. The prisoner was convicted of larceny under the following cir- cumstances. The prisoner was a common carrier and was employed by the prosecutor to carry a cargo of coals from a ship to a coal yard, and thence to another yard be- longing to the prosecutor. The prisoner carted the coals to the first mentioned coal yard, and was engaged for several days in carting them from thence to the prose- cutor's other yard. He left the first mentioned coal yard on one of those days with two carts and a waggon aU laden with coals ; before he arrived at the other yard he delivered the two cart loads to a third person on his own account ; but he duly delivered the waggon load at the prosecutor's other yard. Held, that the conviction was wrong, the coals having been delivered to the prisoner as a carrier, and there having been no breaking of bulk or other deter- mination of the bailment. Reg. V. Cornish, 425 16. The prisoner was convicted of stealing certificates of a foreign railway company, which certifi- cates it was proved in evidence were treated and dealt with on the London Stock Exchange as scrip of a foreign railway. Held, that such certificates are a valua- ble security within the statute 7 & 8 Geo. 4. c. 29. s. 5., and that the conviction was right. Reg. v. Hugh Joseph Smith, 561 17. The prisoner was convicted upon an indictment for stealing a purse containing seven bl. notes and other money. It was found by the jury that the purse and its contents were lost by the prose- cutor and found by the prisoner. There was no evidence that the notes had any name or other mark upon them indicating to whom they belonged, nor was there evi- dence of any other circumstances which would disclose to the pri- soner, at the time when he found the property, the means of disco- vering the owner; but the jury being asked whether, at or after the time of finding the purse and its contents, the prisoner believed that there was a reasonable pro- bability that the owner could be found, answered that he did believe that the owner could be traced. Held, that the prisoner was not properly convicted. Reg. v. Dixon and Lee, 580 18. The prisoner was convicted of larceny. It appeared by the evi- dence that the prosecutor, in the hearing of the prisoner, told his servant that he must go to S. and pay him money, upon which the prisoner ofiered to take it, falsely stating that he lived qnly six doors from S. This statement induced the prosecutor to deliver the money to the prisoner to carry to S. ; but the prisoner, instead of carrying the money to