Rex v. Edmonds and others. See 3 Burn, 98. Juror at sessions having conversed with a stranger respecting trial on retiring to converse of verdict, a venire de novo was awarded for the next ses sions, when prisoners were convicted. On writ of error, judg ment affirmed. The sheriff's officer had neglected to summon one of the 24 special jurymen returned on the panel. The court of K. B. held, that this was no ground of challenge to the array for unindifferency on the part of the sheriff. S. C. It is not competent to ask jurymen (whether special jurymen or talesmen) if they have not, previously to the trial, expressed opinions hostile to the defendants and their cause, in order to found a challenge to the polls on that ground, but such expressions must be proved by extrinsic evidence. S. C. It seems that a grand juror, who found the bill, ought not to be on the special jury. S. C. Vide Peter Cook's Case, 13 Howell's St. Tri. 339. Rex v. Fowler and Sexton, H. 1 & 2 G. 4. 4. B. & A. 273. — The defendants were indicted at the quarter sessions for the county of Sussex for stealing oats, to which indictment they pleaded not guilty, and put themselves upon the country. They were found guilty. It appeared, that on the jury retiring, one of them had separated from the rest of the jurors, and conversed with a stranger concerning the trial, upon which the quarter sessions quashed the verdict, and awarded a venire de novo to the next sessions, at which the prisoners were convicted and received judgment. On writ of error, two objections were urged; one, that the sessions could not grant a new trial; the other, that there should have been a new arraignment and plea; Sed Per Curiam. The first verdict was cither good or bad; if it were good, then the second trial was coram non judice, and may be considered as a nullity: if, on the other hand, the first verdict were bad, inasmuch as the prisoners had put themselves upon the country, the prisoners might well be tried at the next sessions; and the second trial is not to be considered in the nature of a new trial, but the first trial is to be considered a mis-trial, and therefore a nullity. In either case the judgment is right. Judgment affirmed. The parties having once pleaded and put themselves on the country, it was not necessary for them to plead de novo. S. C. 1&2 G.4. c. 63. Justices of the Peace. [See 3 Burn, 118.] BY stat. 1 & 2 G. 4. c. 63. after reciting that whereas by stat. 28 G. 3. c. 49. [3 Burn, 116,] it was enacted, that it should and might be lawful for any justice or justices of the peace acting for any county at large, to act as such at any place within any city, town or precinct, being a county of itself, and situate within, surrounded by, or adjoining to any such county at large; and that all and every such act and acts, matters and things done by such justice or justices of the peace for the said county at large, within such city, town, or other precinct, should be as valid and effectual in the law as if the same had been done within the said county at large, to all intents and purposes whatsoever; and whereas doubts have been entertained whether justices of the peace for counties at large are thereby empowered to act for such counties at large act as such in exclusive jurisplaces having diction within or adjoining such county. within any city, town or other precinct having exclusive jurisdic- 1 & 2 G. 4. c.65. tion, but not being a county of itself; it is enacted and declared, Justices of the "that it shall and may be lawful for any justice or justices of the peace, acting for peace acting for any county at large, or for any riding or division any county at of a county in which there are several and distinct commissions of large, &c. may the peace, to act as a justice or justices for such county at large, riding or division, in sessions or otherwise, at any place within any city, town or other precinct, having exclusive jurisdiction, but not being a county of itself, and situate within, surrounded by, or adjoining to any such county at large, riding, or division; and that all and every such act and acts, matters and things, which shall be done or which may heretofore have been done by such justice or justices of the peace for the said county at large, riding, or division, within such city, town or other precinct, shall be as valid and effectual in the law as if the same had been done within the said county, riding or division, to all intents and purposes whatsoever; pro- Proviso. vided always, that nothing in this act contained shall extend to give power to the justices of the peace for any county at large, riding, or division, not being justices for such city, town or other precinct, or any constable or other officer acting under them, to act or intermeddle in any matters or things arising within any such city, town or precinct, in any manner whatsoever." criminate a Rex v. Bishop, Esq. E. 3 G. 4. 5 B. & A. 612. A rulenisi was Criminal inforobtained in last M. T. for a criminal information against the de- mation. fendant for corrupt practices as a justice of the peace. The latest Where the facts circumstances alleged in the affidavits for the prosecution, took tending to place in 1820. But in order to account for the delay, the prose- magistrate took cutor swore that he had no knowledge of the facts tiil shortly be- place twelve fore the application, when there having been a meeting of magis- months before trates on the 17th November last, for the purpose of investigating the application the defendant's conduct, he and another magistrate not being sa- to the court, tisfied with the defendant's explanation, instituted the present they refused to grant a criminal enquiry. On shewing cause, it was objected, first, that the appli- information, cation was too late. And Rex v. Marshall, 13 East, 322. and although the Rex v. Harries, 13 East, 270., where it was so held, were referred prosecutor, in to. If the want of knowledge will afford an excuse, a wide door order to excuse will be open, for it will be in all cases easy to find some one in the delay, stated that situation who will prosecute. Contrà. Here the investigation had not come on the 17th November last was relied on, as taking the case out of to his knowthe usual rule. - ABBOTT C. J. We do not, by discharging this ledge till very rule, shut the door to an enquiry, for a bill of indictment may still shortly previous be preferred against the defendant. But if we were to admit this excuse, we should entirely frustrate the very useful rule to which we have been referred. Perhaps, if at the investigation all the magistrates present had concurred in directing such an application to be made, the case might be different; but that does not appear to be the case. The rule must be discharged. The court, upon this objection, having refused to discharge the rule with costs, the objection was waived, and the merits entered into. R. D. with costs. See stat. 3 G. 4. c. 46. § 2. title "Recognizance," post. that the facts to the application. 356 Land Tax. [See 3 Burn, 146.] WHERE the commissioners under certain statutes, land tax, assessed taxes, &c. refused to re-assess the inhabitants, &c. upon default of the collector, unless indemnified, being doubtful as to their authority so to do; the court of exchequer held, that the words of the acts 38 G. 3. c. 5. § 18.; 43 G. 3. c. 161. § 56.; and 46 G. 3. c. 65. § 189. were large enough to impose this duty upon them, the deficiency arising from the neglect of the collector. They, therefore, made absolute the rule for an order in the nature of a mandamus, and that service on the clerk of the commissioners should be deemed good service. In re Inhabitants of Wootton, 6 Price, 103. The court also held, that there can be no limitation of the crown in matters of public revenue. S. C. If there be a plan to cheat a man of his property under colour of a bet, and he parts with the posses sion only to deposit as a stake to one of the confede rates, the taking by such confederate is felonious. Larceny (What a Felonious Taking.) [See 3 Burn, 176-181.] IF several persons act in concert to steal a man's goods, and he is induced by fraud to trust one of them in presence of the others with the possession, and another of them entices him away, so that the man who has his goods may carry them off, all are guilty of felony. The receipt by one is a felonious taking by all. Standley, Jones, and Webster conspired to get some money from M'Laughlin. They pretended he could not produce 1007.: he produced that sum in notes: Jones took them to count; handed them to Standley, and Standley and Webster pretended to gamble for them. Jones beckoned M'Laughlin out of the room, and Standley and Webster immediately decamped with the money; and all three afterwards shared it. On case reserved, the judges were unanimous that this was larceny in all three. Rex v. Standley and others, Warwick Lent Ass. 1816. Cor. N. G. Clarke, Esq. K. Č. and before the Judges, E. T. 1816. MS. C. C. R. Rex v. Robson, Gill, Fewster and Nicholson, MS. C. C. R. E. T. 1820. The prisoners were convicted before BAYLEY J. at the Lent assizes at Newcastle-upon-Tyne, 1820, of stealing, from the person of John Younger, twenty notes for one guinea each. The facts were as follows: Robson, by pretending to find a sixpence in a fair, decoyed Younger to a public-house. They were there joined by the three other prisoners; after a little time Gill, who pretended to be flush of money, began to play with Fewster at guessing at a halfpenny which Fewster hid under a pewter pot: Gill was to guess three times right out of four. After losing twice, Gill offered a wager of a pound that none of them could produce 10l. Fewster took the bet, and advised Younger to do the same: he had not money enough about him, but went and borrowed 20 guinea notes of a friend; and then it was conceded he had won. Gill then offered Fewster to bet him 100l., or 50l., or any other sum, that he Rex v. Robson guessed the halfpenny right three times out of four; and Fewster and others. betted him 40/. Gill guessed wrong once out of the four times, and then went out. In his absence, Fewster advised Younger to go halves in the bet, as he was sure to win; and after some persuasion he consented; and on Gill's return he handed his 20 notes to Gill, who passed them on to Robson, who was to be stake-holder. Gill then pretended to guess the remaining three times, and being right in each, Robson gave him the stake, and he went away. BAYLEY J. told the jury, that if they thought, when Gill took the notes from Younger and passed them to Robson, there was a plan and concert between the prisoners that Younger should never have his notes back, but that they should keep them for themselves, under the false colour and pretence that Gill won his bet, he thought it a felonious taking, and a felonious taking by all. The jury were of that opinion; and on case reserved, the judges [ten] East. T. 1820. held the conviction right; because at the time of the taking, the prosecutor parted with the possession only. N. B. R. v. Nicholson and others, 2 East's P. C. 669. 3 Burn, 192. was referred to; but that case is distinguishable from the above, the property having been parted with by the prosecutor: here the prosecutor parted with the possession only, and not the property. Felonious Intention, from his own he has no intent to charge the bailee, but his intent is to defraud the King, had an interest yet if the bailee in the possession and could have withheld it from bailee, though the owner, the taking is a larceny. Rex v. Nowell Wilkinson and Joseph Marsden, O. B. October If a man steal Sess. 1821. Cor. PARK J. Present Ld. C.J. ABBOTT. MS. C.C.R. his own goods The prisoners were indicted for stealing 6696 pounds' weight of Nux Vomica, value 30., the property of James Marsh, Henry Coombe, and John Young, in a certain boat belonging to them, in the port of London, being a port of entry and discharge. Upon the evidence the case was thus: the prosecutors are lightermen and agents, and were employed by a Mr. Cooper, a merchant, who delivered them the warrants filled up, to enable them to pass the nux vomica through the custom-house, for exportation to Amsterdam. The quantity was 30 bales of nur vomica, consisting of 750 bags. For exportation this commodity pays no duty; but for home consumption, there is a duty of 2s. 6d. on the pound weight, though the article itself is not worth above one penny per pound. Messrs. Marsh & Co. entered the bales for a vessel As if the bailee about to sail to Amsterdam, called the York Merchant, then lying were bound to in the London Docks; and having done what was necessary, de- the crown for livered back the cockett, bill and warrants to Cooper, considering a specific appro him as the owner; and Marsh & Co. bond to government, goods. with Cooper, under a penalty to export these goods. Marsh & Co. Hale, 515. were to be paid for lighterage and for their services. After this 1 Hawk. c. 55. Messrs. Marsh & Co. employed the prisoner Wilkinson as their $30. servant, who was a lighterman, (and who had originally intro- Fost. 123, 124. duced Cooper to them to do the needful respecting the nux vo- 231. mica,) to convey the goods from Bow Creek, where they were, to 2 East's P. C. the York Merchant, at the London Docks, and lent their boat, with 558. the name of Marsh & Co. upon it, to enable him so to do. Wilkinson, the prisoner, accordingly went and got the nux vomica by an order, commanding the person who had the possession of it to deliver it to Mr. John Cooper. The bales were marked C. 4. to 33. gave priation of the 4 Black. Com. Rex v. Nowell Marsden. When Wilkinson received the cargo, instead of taking it to the York Merchant, he, one William Marsden, and the other prisoner, Joseph Marsden, took the boat to a Mr. Brown's, a wharfinger at Lea Cut, in the county of Middlesex, and there unloaded it into a warehouse which William Marsden had hired three weeks before, and which they had used once before; and there the two prisoners and William Marsden were employed 18 hours in unpacking the bales, taking out the nux vomica, repacking it in smaller sacks, and sending it by a waggon to London, and refilling the market bales with cinders and others rubbish which they found on the wharf. The prisoner, Wilkinson, then put the bales of cinders, &c. on board the boat, took them to the York Merchant, hailed the vessel, and said he had 30 bales of nux vomica, which were put on board, and remained so for two or three days, when the searcher of the customs discovered the fraud. Marsh & Co. admitted that they had not been called on for any duties, nor sued upon their bond, though the bond still remains uncancelled. The defence was, and proved by Cooper, that the goods were not his; that he had, at William Marsden's desire, lent his name to pass the entry; that he had done so, but did not know why; and he swore he did not know it was a smuggling transaction, or that the object was to cheat government of the importation duties. If these were to be considered as the goods of Cooper, then it should seem a felony was committed upon them by Wilkinson and the two Marsdens, by taking them in the manner described out of the hands of Marsh & Co. without their knowledge or consent, who, as lightermen or carriers, had a special property in them, and who were also liable to government to see to the due exportation of them. Even if they were the goods of William Marsden, who superintended the shifting of them from the bales to the sacks, the question is, whether this can be done by an owner against a special bailee, who has made himself responsible that a given thing shall be done with the goods, and which the owner, without the knowledge or consent of such bailee, has, by a tortious act, entirely prevented. The learned judge told the jury, that Lord C. J. ABBOTT and he wished to take the opinion of the judges upon this question, but desired them to say whether they thought the general property in the goods was in Cooper, or W. Marsden. The jury found the prisoners guilty, and that the property was W. Marsden's. On case, four judges doubted whether this were larceny, because there was no intent to cheat Marsh & Co., or to charge them, but the intent was to cheat the crown; but seven judges (absente BESTJ.) held it a larceny, for Marsh & Co. had a right to the possession; till the goods reached the ship, they had an interest in that possession: the intent to deprive them of their possession wrongfully and against their will, was a felonious intent as against them, because it exposed them to a suit upon their bond, and had there been no intent, as against them, the intent to cheat the crown was, in the opinion of most of the seven judges, sufficient to make it a larceny. If the owner, or Rex v. Phoebe Bramley, MS. C. C. R. The prisoner was conpart owner, of victed before N. G. Clarke, Esq. K. C. at Derby Lent Ass. 1822, |