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The court of

for the defendants. Judgment for the defendants. Vide R. v. Inh. of the W. Riding, 7 East, 588.

Power of the Justices in Sessions.

[Vide 1 Burn, 376.]

R. v. Inh. of Machynlleth & Penegoes, E. 2 G. 4. 4 B. & A. quarter sessions 469. The following order of sessions of the county of Montgocannot impose mery was removed by certiorari into the court of K. B. "It is more than one ordered, that the fine heretofore imposed by the court on the fine for the noninhabitants of the township of Machynlleth and the parish of Perepair of a bridge. negoes, for not repairing Pontfelingerrig bridge, be, and the same is hereby increased by the sum of 2001." Taunton obtained a R. N. for quashing the order. It appeared from the affidavits that the defendants had been presented at the January sessions 1818, for the non-repair of the bridge in question; to which presentment they, at the same sessions, submitted, and a fine of 300l. was imposed and afterwards levied upon them. At the last Michaelmas session 1820, the fine not having been sufficient, the order in question was made, imposing a second fine of 2001. The court, after hearing Campbell in support of the order of sessions, were of opinion, that the power of the sessions was at an end after the first fine, and that they had no jurisdiction to impose a second, and they referred to R. v. Inh. of Old Malton (a), as an authority directly in point. Order of sessions quashed.

Allen v. Waldegrave & others, M. 59 G. 3. 2 Moore, C. P. 621. By stat. 55 G.3. c. 30. (Local) §1. The justices of Bedfordshire were empowered to contract for rebuilding Tempsford bridge, and by § 2. they were authorized to nominate, select, and appoint justices to superintend and manage the rebuilding of the bridge. The defendants were selected to superintend such rebuilding, and at an adjourned general quarter sessions contracted with plaintiff, who undertook to rebuild the bridge. Defendants also covenanted with plaintiff, that the justices of the said county of Bedford, or the treasurer of that county, should pay him for the intended work 9,550l., by several instalments on certain days. By § 9. all actions, &c. are directed to be brought in the name of the clerk of the peace. In an action

rence J.

(a) HOLROYD J. read the following MS. note of this case. The King v. The Inh. of the Parish of Old Malton, Yorkshire, Sum. Ass 9th August 1794. Cor. LawThis was an indictment for not repairing a highway. The defendants had submitted to a fine, which had been apportioned between the parishioners and the trustees of the turnpike [the road indicted being turnpike] pursuant to the power given by the general turnpike act. Holroyd applied for a further fine, the whole fine being laid out on the way, and the way being still out of repair. Lawrence J. doubted his power to give any further fine, on the ground that the court had given their judgment; and though Salk. 358. (vide S. C. 6 Mod. 163.) states that the judgment is not at an end by the defendants coming in and sub. mitting to a fine, and that if the road is not put in repair, writs of distringas shall issue against the defendants till the road is completed: he held, those writs are now the only remedy on the present indictment; that the fine is the punishment for the neglect and offence of which the defendants are indicted: and though the court may compel an actual repair, yet the punishment has been inflicted, and they cannot inflict a further punishment or fine; that the parish may be again indicted, and a fine imposed and apportioned on such indictment. Vide also 1 Hawk. c. 76. § 94.

of covenant for non-payment of two of the instalments, the court of C. P. held that the justices were not individually liable; and that plaintiff's remedy was by action against the clerk of the peace. Where a person contracts as an agent for the public, he is not personally responsible. Per Dallas C. J.S. C.

Burglary (What Breaking and Entering.)

The prisoner

broke the glass of prosecutor's side door with

intent to enter at a future time

on the Sunday

enter.

REX v. John Smith, MS. C.C.R. The prisoner was tried before Park J. at the O. B. April sessions, 1820, for burglariously breaking and entering the dwelling-house of Alfred Taylor, with intent to steal (no stealing was alleged, nor was there any in fact); but the learned judge left the fact of the intent fully to the jury, who, upon the evidence, found that the bur- on the Friday glary was with the intent to steal, and therefore returned a verdict night, and acof guilty. It appeared that in the night between Friday the tually entered 24th and Saturday the 25th March, the side door of the pro- ont secutor's house, opening into a thoroughfare passage, had all the night. The judges held this glass of it (9 by 10 inches) taken out by the prisoner, with in- burglary, the tent to enter, and which the prosecutor never repaired on the breaking being Saturday. The whole of Saturday and Sunday elapsed; and with intent nothing more is heard of it. In the night between Sunday the afterwards to 26th and Monday the 27th March, the prisoner entered at the same hole, but was taken on the premises, before any larceny was actually committed. The jury also found the breaking and entering both, to have been noctanter, and that the breaking was not accidental (for the window part of the door was just high enough for a drunken man's head to have hit at), but that both breaking and entering were felonious. But a doubt arose whether one single act of felony (such as burglary) could be made up by what takes place at two different days, at a distance from each other, and not merely separated by the natural accidents of the transaction itself, as if the felon began his operation at ten or eleven one night, and did not complete his entry till one or two o'clock in the morn ing, which would in law be the next day, Ld. Hale (1 P. C. 551.) says, "But if they break a hole in the house one night to the intent to enter another night, and commit felony, and accordingly they come at another night, and commit a felony through the hole they so made the night before, this seems to be burglary, for the breaking and entering were both noctanter, though not the same the night; and it shall be supposed, that they brake and entered night when they entered, for the breaking makes not the burglary till the entry." See also 2 East, P. C. 491.-This point was submitted for the opinion of the learned judges, who in (E. T. 1820.) held this to be burglary, the breaking having been with intent afterwards to enter.

Pulling down the sash of a window is a breaking though it has no fastening, and is only kept in its place by the pulley weight. MS. E.T. 1821.

And it makes no difference though there is an outward shutter, which is not put up. MS. E.T. 1821.

Inhabitancy.

Breaking alone, without

entering, not sufficient.

2 East's P. C.

Rex v. Harrison, E. T. 1821. MS. C. C. R. Prisoner entered a house by pushing down the upper sash of a window; it had no fastening, and was kept in its place by the pulley weight only: there was an outer shutter, but it was not put to. Case on question, whether the pushing down the sash was a breaking, and the twelve judges were unanimous that it was; and Abbott C. J. observed, without animal force the sash would keep its place.

Getting into a chimney of a house is a sufficient breaking and entering to constitute burglary, though the party does not enter any of the rooms of the house.

Rex v. Brice, E. T. 1821. MS. C. C. R. The prisoner got in at the top of a chimney, and got down to just above the mantle-piece of a room on the ground floor. Case on question, whether this was a breaking and entering of the dwelling-house. Holroyd and Burrough Js. thought not, on the ground that he was not in the dwelling-house till he was beyond the chimney. The ten other judges held otherwise; for the chimney was part of the dwellinghouse, the getting in at the top was a breaking of the dwellinghouse, and the lowering himself an entry into the dwelling-house. Though a man leaves his house and never means to live in it again, yet if he uses part of it as a shop, and lets a servant and his family live and sleep in another part of it for fear the place should be robbed, and lets the rest to lodgers, the habitation by his servant and family is a habitation by him, and the shop shall still be considered part of his dwelling-house. MS. E. T. 1821.

Rex v. Gibbons, E. T. 1821. MS. C. C. R. Indictment for burglary in the dwelling-house of Bendall. The place broken into was a shop, parcel of a dwelling-house he had inhabited; he left the dwelling-house and never meant to live in it again, but retained the shop, and let the other rooms to lodgers: after some time he put a servant and his family into two of the rooms, lest the place should be robbed, and they lived there: the judges, on case reserved, thought putting in a servant and family to live very different from putting them in merely to sleep, and that this was still to be deemed Bendall's house, and held the conviction right.

Rex v. Burr and Loosely, O. B. February sessions, 1821. MS. The prisoners were convicted before Best J. on an indictment charging them with burglariously breaking and entering the dwelling-house of the prosecutor, with intent to steal, and stealing a flitch of bacon. The prisoner, Loosely, lodged in the prosecutor's house; the window shutter was in the night-time opened from the inside of the house, the casement of the window was taken out, and the bacon was most probably put through the window to Burr, by whom it was carried away from the prosecutor's premises to Burr's house. It did not appear that Loosely went out of the house, or that Burr ever entered the house. His lordship inclined, at the trial, to think that the charge of burglary in the indictment was not supported by the evidence; but told the jury that if they believed the facts, he advised them to convict, and that he would save the point for the twelve judges. Afterwards, on conferring with the judges of the Court of K. B., he thought that there was no evidence of entering the house; and he, therefore, did not present the case to the twelve judges, but recommended a pardon, on condition of transportation for seven years, as the prisoners were properly convicted of a larceny.

87

Carriers (Liability of.)

[Vide 1 Burn, 441. et esq.]

BATSON and others v. Donovan and others, M.1 G. 4. 4 B. A carrier is not & A. 21. Action against the defendants as common carriers answerable for to recover a compensation for the loss of a box, containing bills parcels of value and bank notes to the value of 4072l., which had been lost out of after notice, a stage coach, of which they were the proprietors. The defend- where the value ants had given notice that they would not be answerable for parcels concealed. is fraudulently of value, unless entered and paid for as such. The plaintiffs knew of this notice. The box was left with one of the defendants, at Berwick, and booked, with no other observation than this: "It is the box for Newcastle." Nothing was said as to what it contained, nor did any of the defendants know it contained articles of value. It was directed "William Batson, Newcastle ;" and had on it a brass plate, with the words "Wm. Batson and Co." It was locked and corded, not sealed. W. Batson and Co. were bankers at Berwick and Newcastle. The coach arrived at Berwick at twelve at night, and remained half an hour in the middle of the street, which is of the width of 80 yards. About a quarter after twelve the box was put into the boot of the coach, and a porter was ordered to watch the coach; but he was at a considerable distance from it, and was so inattentive to his duty that the box was probably stolen from the boot whilst it was so left in the street and so watched by the porter. There was no misfeasance in the defendants or any of their servants. Bayley J., who tried the cause (at Northumberland Sum. Ass. 1819,) left two questions to the jury: 1st. Whether the plaintiffs dealt fairly by defendants in not apprizing them that the box contained articles of value; and, 2dly, Whether in the case of a parcel of such value as the defendants might fairly expect this to be, there was in the conduct of the defendants gross negligence? The learned judge told the jury, that if they thought the concealment on the part of the plaintiffs was unfair, or that the defendants were not guilty of gross negligence, they should find for the defendants. The jury found for the defendants. A R. N. having been obtained for a new trial, the Court of K. B. (Best J. dissentiente) held that the direction to the jury was correct, and therefore refused to disturb the verdict. (a) ·

Garnett v. Willan and Jones, M. 2 G. 4. 5 B. & A. 53. The defendants, who were proprietors of the Worcester mail-coach, received a parcel of sarsenet, of the value of 45l. Os. 5d. which was duly booked at the coach office at the Bull and Mouth inn, from which the Worcester mail proceeds, "as for the Worcester mail-coach to Worcester." The parcel was accordingly, by the defendants, put into the Worcester mail-coach at the Bull and

(4) The opinions of the learned judges in this case are highly interesting and worthy of attention.

(a) Ante, 88.

Mouth inn, and entered in the usual way-bill of that coach, as a parcel to be carried thereby from London to Worcester, and the same parcel was carried in the mail-coach, from the coach office at the Bull and Mouth inn, to the Green Man and Still, in Oxfordstreet, at which the defendants have no office or servant; but where passengers and parcels are booked for the defendant's mailcoach, and there the same was taken out of the mail-coach, and left at the Green Man and Still, to be forwarded on the following day to Worcester by another Worcester coach, called the Heavy Coach, (in which the defendant John Jones had no interest,) and the entry in the way-bill of the mail-coach was altered accordingly. The parcel was afterwards lost out of the heavy coach, but it did not appear by what means. Before the parcel was so booked, and delivered to be carried to Worcester by the mail, the defendants had caused the following public notice to be given, and the plaintiffs had notice thereof: "Take notice, that the proprietors of the public carriages, who transact their business at this office, will not be answerable for any package containing cash, bank notes, bills, jewels, plate, watches, lace, silks, or muslins, however small the value, nor for any other package which, with its contents, shall exceed 51. in value, if lost or damaged, unless the value be specified, and an insurance be paid over and above the common carriage, when delivered here, or to any of their offices or agents in the different parts of the kingdom." The Court of K. B. held that notwithstanding this notice, the carriers were responsible for the parcel in question, in consequence of their having delivered it to be carried by another coach, of which one of the carriers only was proprietor.

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Sledt and others v. Fagg, H. 2 G. 4. 5 B. & A. 342. A parcel containing country bank notes of the value of 1300%., and addressed to their clerk, in order that it might not be known to be a banker's parcel, was delivered to the defendant in Holborn to be forwarded to Christ-church by the Pool mail, without any notice of its value. The parcel was sent by a Southampton light coach and was lost. The defendant had previously given notice that he would not be answerable for any parcel above 57. in value if lost or damaged unless an insurance were paid: no insurance having been paid in this case. The Court of K. B. held, notwithstanding, that the carrier was responsible for the loss. Bayley J. said, in Batson v. Donovan (a), the very ground of action against the carriers was a negligent performance of their duty, and it was held, that the plaintiff in that case could not make that negligence a ground of action, because he had superinduced it by his own neglect, in not communicating the value of the parcel to the defendants. If that had been done, they would probably have placed it in a more secure part of the coach. In that case, the carriers in performance of their contract placed the parcel in the coach, and the foundation of the charge against them was mere negligence in the course of performing their contract. This is a case not merely of negligence, but of misfeazance; for the defendant received the parcel for the purpose of conveying it by the Pool mail, of which he was a proprietor. He, however, divests himself of his charge, and sends it by another conveyance, of which all the same persons were not proprietors. The defendant, therefore, did not carry it

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