so far as respects such allotment [or allotments] so set out and 1&2 G. 4. c 25. allotted, or staked and marked out to and for the said T. F. witness my hand [or our hands], this Witness, day of (Signed) A. B. As Indictment. [See 3 Burn, 25.] Where an indictment for disobeying an order of justices, appears to be record. REX v. Hollis, Sitt. at West. after M. T. 60. G. 3. cor. ABBOTT, C. J. 2 Stark, N. P.536. This was an indictment against the defendant for not having removed an encroachment made by extending his house in Goswell-street, in pursuance of an order made by two justices of the peace under the building act, con- founded on an firmed by the court of quarter sessions, upon an appeal by the de- order made in a fendant against the order. After the indictment had been read, case in which Bolland, for the defendant, submitted to the court that no indict the justices had no jurisdiction, able offence was alleged on the face of the indictment, and urged the court will that this was the proper time for making such an objection, for direct an acquitwhich he referred to a case before Lord ELLENBOROUGH, who said tal at the sitthat it was proper to make such an objection in limine; and he tings, although was prepared, he said, to shew that the conviction before the two the defect apjustices was void; and that if so, no judgment could be supported pear on the upon a vitious record. ABBOTT C. J. said, that it appeared that the defendant was charged with having disobeyed an order of two magistrates, and that he thought the objection was premature, in the present stage of the business. The counsel for the prosecution, then gave in evidence, the petition of the defendant to the court of quarter sessions to receive his appeal. This petition recited the information and conviction before the two magistrates. Both the information and adjudication charged the defendant with having unlawfully made an addition to a house of the third-rate or class of buildings, projecting three feet six inches beyond the upright line of the said building. The adjudication of the justices alleged that this was a common nuisance; and, further, directed that the same should be abated on or before the 12th of January then next. Bolland, for the defendant, objected that no offence against the building act, 14 G. 3. c. 78. § 40. 60. was charged in the conviction, and consequently that no indictment could be supported for disobedience of an order which was utterly void. The building act, § 49. enacted, that no bow-window or other projection should be built or added to any first, second, third, or fourth-rate building next to any public street, &c., so as to extend beyond the general line of the fronts of the houses, except such projections as may be necessary for copings, cornices, &c. Gurney and Andrews, for the prosecution, answered that the order of sessions was grounded upon the act of the defendant, as set forth in his own petition; and that by the § 78. of the building act it was enacted, that the judgment and determination of the justices at the sessions should be binding on the party. It was also urged, that as the objection appeared upon the record, the proper way of objecting would be Rex. v. Hollis. by motion in arrest of judgment. An indictment for a misdemeanor con taining several counts, alleging several misdemeanors of the same kind on the same day, the prosecutor may give evidence of such misdemeanors on different days. ABBOTT C. J. The order would be binding and conclusive in a case where the justices had jurisdiction over the subject matter; but where they have not, they cannot make an order binding upon any one. The subject matter of the order is not within the act of parliament. The defendant was accordingly acquitted. Rex v. Levy and others, Sitt. at West. after H. T. 59 G. 3. cor. ABBOTT Č. J. 2 Stark. N. P. 458. This was an indictment against Levy and others for a conspiracy. The indictment alleged that Elizabeth Harris being in a state of pregnancy, during her parturition, the defendants conspired together by making loud noises, and by knocking violently against the wall of the room in which the prosecutrix lay, to injure and terrify her. There were two counts for conspiracies, and one for a riot, &c. It appeared that the prosecutrix, Elizabeth Harris, was a Jewess, and that she had lived with James Tweedie, a Christian, as his wife, under a promise of marriage from him, but that they had never been married; and it was proved, that the defendants (who were Jews), and who it appeared had been offended at the prosecutrix's supposed marriage with a Christian, had, on the day specified in the indictment, viz. the 13th of September, whilst the prosecutrix was in labour, been guilty of the annoyance complained of in the indictment. Andrews, for the defendants, cited the King v. Lloyd, (4 Esp. 200) when Lord ELLENBOROUGH had held that the making loud noises to the disturbance of individuals in the occupation of their chambers, was not an indictable offence. ABBOTT C. J. said, that he could not, sitting there, decide upon the validity of the indictment; the defendants might have demurred, or might move in arrest of judgment. Evidence being afterwards offered of similar conduct on the part of the defendants on a different day from the 13th of September, Andrews objected, that since but one day was alleged on the record without the addition, " and on divers other days and times," it was not competent to the prosecutor's counsel to adduce evidence of any offence on another day; and he referred to a case decided by Lord ELLENBOROUGH. ABBOTT C. J. said, that the present case was distinguishable from that cited, since here there were two counts for conspiracies and one for a riot; and that evidence at all events might be given under the different counts of offence on separate days. The jury found Levy and two others guilty of a conspiracy. (a) (a) Where several different felonies are alleged in the same indictment, it is usual for the judge, in his discretion, to call upon the counsel for the prosecution to select one felony, and to confine the evidence to that particular charge, 3 T. R. 106. Rex v. Jones, 2 Campb. 132. Rex v. Kingston, 8 East, 41. But this rule has not been extended to misdemeanors, and it is the common practice to receive evidence of several libels, and of several assaults under the same indictment. See Lord ELLENBOROUGH's observations in Rex v. Jones, 2 Campb. 132. Where the indictment comprehends several distinct misdemeanors charged against different persons, it may be a good ground of application to the discretion of the Court to quash the indictment, on account of the inconvenience which might result at the trial from joining different counts against different offenders. Many of the older precedents contain a great number of different charges against the same defendant. In Broughton's case, Trem. 111., the indictment charged no less than twenty distinct acts of extortion. See also Rex v. Lee, Trem. 248., and Rex. v. Baxter, Trem. 55. where different libels are set out. Conclusion. [See 3 Burn, 45.] A Contra Pacem of our said late lord the king, where the offence Contra pacem. is in the time of the present king, and no other king has been mentioned, is unexceptionable. An indictment for a rape, stated to have been committed 9th of March, 1 G. 4., concluded against the peace of our said late lord the king. On case, the Judges were unanimous that "late" might be rejected, and the prisoner was executed. Rex v. Scott, Leicestershire Lent Assizes, 1820, before BEST J. and before all the Judges in E. T. following, MS. C. C. R. If one statute subjects an act to a pecuniary penalty, and a subsequent statute makes it felony, an indictment for the felony, concluding against the form of the statute is right. By stat. 34 G. 3. c. 20. § 9. Having paper in possession with false stamps, subjects to 500l. penalty; stat. 49 G. 3. c. 81. makes it felony. An indictment concluded contra formam statuti, and on case, the Judges held it right. Rex v. Pim, Devonshire Sum. Ass. 1820, cor. BURROUGH J. and before the judges in M. T. following. MS. C. C. R. New Trial. Rex v. The Inhabitants of Bourbon, M.57 G. 3. 5 M. & S. 392. Indictment for non-repair of a highway. Plea, not guilty. Upon the trial before WOOD B. at the Westmorland Sum. Ass. 1816, there was a verdict of not guilty. And now, Scarlett moved for a new trial, upon the ground that the verdict was against all the evidence; and he said, that the prosecution was for the purpose of trying a civil right only. But, per Lord ELLENBOROUGH C. J. In general, the rule is not to grant a new trial in a criminal proceeding after a verdict of not guilty. And inasmuch as the right will not be bound on the plea of not guilty, we do not think it would be proper to break into the general rule on the suggestion that the prosecution was merely intended to determine a civil right. R.R. When an indictment ought to conclude contra formam statuti or statu torum." New trial refused after a guilty upon an indictment for not repairing a road, where the verdict does not verdict of not bind the right. Insolvent Debtors. [See 3 Burn, 69-77. 768-789.] EX parte Deacon, E. 3 G. 4. 5 B. & A. 759. A mandamus was moved for to the commissioners of the court of insolvent debtors, directing them to receive and hear the petition of one Mary Deacon, a prisoner confined in the K. B. prison, and to proceed to an adjudication thereupon. The prisoner was a married woman, and had been arrested, together with her husband, for a debt due from her before coverture, and both were then in execution for that debt. An application had been made to the court of C. P., in which court the action had been brought, to discharge the wife, act; she not being capable of executing a warrant of attorney, and complying with the other terms required 5G. 4. c. 123. but that court had refused. In consequence of this refusal she applied to the court of insolvent debtors; filed her petition and schedule in due time, executed the regular assignment, and offered to submit to such other conditions as the court, by stat. 1 G. 4. c. 119. is authorised to impose upon insolvents seeking relief. The commissioners, however, were of opinion, that being a married woman, she was not entitled to the relief of the act, inasmuch as she could not comply with the terms of § 25., by which it is enacted, "that when an order is made for the discharge of a pri§ 12. pust, 546. soner, the court may order that a judgment shall be entered up against such prisoner, in some one of the superior courts of Westminster, in the name of the assignee or assignees of such prisoner, &c.; and that such prisoner shall execute a warrant of attorney to authorize the entering up of such judgment, and such judgment shall have the force of a recognizance." The commissioners considered this to be a preliminary condition to the granting of a prisoner's discharge, and inasmuch as a married woman could not execute a warrant of attorney, they considered her not entitled to relief. Mrs. Deacon had no property in her own right, or in the hands of trustees, out of which she could satisfy the debt. The husband joined in the affidavit, but he did not state that he was not possessed of property, or was unable to discharge the debt from his own funds. Per curiam.-We cannot interfere. This woman cannot comply with the conditions of the act, and the commissioners have it not, therefore, in their power to discharge her; she is now in prison with her husband, who ought to pay this debt himself, and has not sworn to his incapacity so to do. The court in which the action was originally brought, may order her discharge, if they think proper; but we have no power; and we do not think that the commissioners of the insolvent debtors' court have misconstrued the act of parliament, in deciding, that a married woman who has no property to assign, who cannot execute a warrant of attorney, and comply with the other conditions, is not entitled to her discharge. R. R. Provisional assignee to take possession of estate, &c. conveyed to him; and out of the proceeds to pay the expenses of taking possession. By stat. 3 G. 4. c. 123. § 1. after reciting stat. 1 G. 4. c. 119. (3 Burn, 768-789.) and that it is expedient to amend the same, it is enacted and declared, that it shall be lawful for the provisional assignee of the court for relief of insolvent debtors, to take possession himself, or by means of a messenger of the said court, or other person or persons appointed by him, of all the real and personal estate and effects of every such prisoner as shall subscribe such petition, and execute such conveyance and assignment, as in the said recited act mentioned; and, if the said court shall so order, to sell or otherwise dispose of such goods, chattels, and personal estate, or any part thereof, and, if the court shall so order, of the real estate of such prisoner, according to the provisions of the said recited act, for the purposes of the said recited act, and out of the proceeds of such real or personal estate to defray, in the first place, all such costs and expenses of taking possession of or seizing and selling the same, as shall be allowed by the said court, and account for the produce thereof to the said court; and all and every the real or personal estate, money and effects, vested in or possessed by such provisional shall go to his assignee by virtue of the said recited act or this act, shall not remain in him, if he shall resign or be removed from his office, or All property vested in him successor. in his heirs, executors, or administrators, in case of his death, but 3 G. 4. c. 123, § 2. It shall be lawful for the provisional assignee to sue in Provisional as- be valid. Court may ap point an as- 3. After reciting that whereas it is enacted by the said recited act, that when the said court shall adjudge any prisoner to be entitled to his discharge, such court shall appoint a proper person or persons to be assignee or assignees of the estate and effects of such prisoner, for the purposes of the said recited act; declares and enacts, "that it shall and may be lawful for the said court, as often as it shall see cause, for the better preserving and securing the property of any prisoner, to appoint at any time after the filing of such prisoner's petition, and before the said court shall judge him entitled to his discharge, as well as after such adjudication, one or more assignee or assignees of the estate and effects of such prisoner, for the purposes aforesaid; and when such last-mentioned assignee or assignees shall have signified to the said court his or their acceptance of the last-mentioned appointment, every such prisoner's estate, effects, rights, and powers vested in such provisional assignee as aforesaid, shall immediately be assigned by such provisional assignee to such lastmentioned assignee or assignees, in trust, for the benefit of such lastmentioned assignee or assignees and the rest of the creditors of every such prisoner, in respect of or in proportion to their respective debts, according to the provisions of the said recited act; and the assignee or assignees of every such prisoner, at any time Power to all asappointed, shall be and is and are hereby empowered to use and signees to exerexercise all the powers, authorities, rights, and duties, and shall cise the powers be subject to all the duties, liabilities, and punishments, given or given to provisional assignee. ordained by this or the said recited act with respect to the provisional or other assignee or assignees of any prisoner; and in all Assignment to cases after assignment by the provisional assignee, all the estate assignees to vest and effects of every such prisoner shall be, to all intents and pur- by relation from poses, as effectually and legally vested by relation in all and time of first assignment. every such assignee or assignees, as if the first assignment had been made by such prisoner to him or them; but no act done under or by virtue of such first assignment, shall be thereby rendered void or defeated, but shall remain as valid as if no such relation had taken place." Enabling court to charge assignees with in terest at a rate 4. Enacts, that from and after the passing of this act, in all cases in which any assignee or assignees of any insolvent's estates shall wilfully retain in his or their hands, or otherwise employ for his or their own benefit, any sum or sums of money, part of the estates of such insolvent, the said court shall have full power and authority to order such assignee or assignees to be charged in his or their accounts with the estates of such insolvents, with such money belongsum or sums of money as shall be equal to the amount of interesting to the insol not exceeding vent's estate. |