SECOND POINT.-In the progress of the trial it appeared, that the will set out in the indictment, in which the prisoner was named executor, was dated the 6th of Sept. 1736, and that another will existed in the name of Thompson, (which was produced in Court,) dated 7th March 1737, in which one Carter was named executor.

CARTER was called as a witness on the part of the prosecution to prove, that the will in which the prisoner was named executor, was not in the hand-writing of Thompson, the supposed testator. The competency of his evidence was objected to on the ground of interest. To support this objection it was contended, that he stood in a similar predicament with a man whose name is charged to be forged to a bond, note of hand, bill of exchange, or other security, and is produced to prove that it is not his signature: and that in such a case the law refuses his evidence, because it tends to destroy the validity of an instrument which affects his interest. In the present case there are two wills, Carter the witness claiming an interest as executor under one of them, and Rhodes the defendant claiming in the same way under the other. The evidence therefore of Carter, by disproving Rhodes's will, tends to confirm and establish his own, and by this means to promote the interest which he claims.

ON the part of the Crown it was answered, that an interest was not sufficient to destroy the competency of the witness, unless it be of such a nature as may be materially affected by the event of the trial. The instances of the drawer of a note or the obligor of a bond do not apply; for there, the evidence tends to destroy a security upon which,

was indicted for forging a Seaman's Will. To prove the probate revoked, Thomas Fletcher, a clerk in the Prerogative Court, produced an entry of the revocation in a book called The Assignation Book, in which all causes are entered by the Register, and which was kept officially by the witness as the only record of such proceedings, and of the decrees of the Court. It was objected that this book was not admissible evidence. But THE COURT was clearly of opinion, that it was evidence to prove the fact of the probate being revoked.

1742.

RHODES'S

CASE.

See Dr.Dodd's

post.

if valid, the witness is immediately liable: but in the present case, there can be no question which of the wills has the better title. Admit for a moment, that Rhodes's will is in the hand-writing of the testator, yet it being anterior in point of date to that under which Carter claims, it can never and Newbe established as the last will of Thompson; so that the in- land's Case, terest which Carter possesses, does not in any degree depend upon the question now before the Court, viz. Whether the will charged to be forged, under which the prisoner claimed, be in fact real or fictitious? The acquittal or condemnation of the prisoner does not in any way affect Carter's right Salk. 283. to a probate; he is intitled to it, as executor of the last will; and his interest cannot be concerned in any event Ray. 1229. which may be produced by his testimony of the fact which he is called upon to prove.

THE COURT were unanimously of opinion, that Carter's testimony was not admissible.

Stra. 1043.

1104. Ld.

THE KING against BRANGAN.

CASE XIII.

A prisoner upon his acquittal is not intitled ex de

AT the Old Bailey September Session 1742, Patrick Brangan and another were tried for a highway robbery and acquitted. The prosecution appeared to have been brought merely for the purposes of vexation and oppression; and bito justitia to the prisoner's Counsel applied to the Court for a copy of the indictment. indictment.

a copy of his

253.

Carth. 421.

2 Stra. 1122.
3 Black. Com.

LORD CHIEF JUSTICE WILLES, who tried the prisoners, 1 Bl. Rep. 385. acknowledged that the prosecution bore the strongest marks 1 Ld. Ray. of being unfounded and malicious, but refused the application, because it was not necessary that he should grant it; declaring, that by the laws of this realm every prisoner, 126. upon his acquittal, had an undoubted right and title to a copy of the record of such acquittal, for any use they might think fit to make of it; and that after a demand of it had

1742.

BRANGAN'S

CASE.

1743.

been made, the proper officer might be punished for refusing to make it out (a).

(a) In 16 Car. II. an order in writing was made by five Judges, that no copies of any indictment for felony should be given at the Old Bailey without special order, upon motion made in open Court, at the general gaol delivery. Kely. Rep. s. and in May Session 1739, this order was republished by the direction of the Court.-The Court will not grant a copy of the indictment where the acquittal arises from the incompetency of a witness: Quick's Case, January Session 1784; and see Bevan's Case, January Session 1786.

CASE XIV.

It was not felony by the common law, for a Cashier of the Bank to embezzle an India Bond

THE KING against JOHN WAITE.

AT the Old Bailey February Session 1743, John Waite was indicted before MR. BARON REYNOLDS (a) upon 2 Geo. II. c. 25. s. 3. and 12 Anne, c. 7. for stealing on the 10th May 1741, in a certain dwelling-house, wherein Zerubabel Crouch and divers other persons did dwell, six East India Bonds of his care, pur- £100 each, laid in one count, to be the property of the Governor and Company of the Bank of England: and in another of a person unknown, against the statute, &c.

committed to

suant to the statute

12 Geo. I. C. 32.

See 2 East, 570.

By the statute of 12 Geo. I. c. 32. respecting orders of the Court of Chancery it is directed, "That Masters in Chancery "shall deliver into the Bank of England, the money, bonds, "tallies, orders, and effects of the suitors of the said Court, "under their respective care and direction; that the Bank "shall receive all interest due upon such securities; and that "upon paying in such money, bonds, tallics, orders, &c. the "Master shall take a certificate thereof from one of the "Cashiers."

IT appeared that the prisoner was a Cashier of the Bank; that in the year 1736, there being a great number of East India Bonds in the custody of the Bank, and the East India

(a) It seems that this case was tried before CARTER and DENNISON, 2 East, 570.

Company resolving to reduce the interest, it became necessary to apply to the Court of Chancery to have the bonds taken out of their vaults, and exchanged for the Company's new bonds; that the prisoner, as Cashier, received several of these new bonds, and gave receipts for them; that on the 21st April the Court of Chancery, in the cause of Broome v. Broome, ordered the seventeen bonds which were in the Bank to be delivered out; and seventeen bonds were accordingly delivered by the prisoner to the bearer of the order. Upon inspection, they were found not to be the identical bonds which were described in the cause. An application was therefore made to the Directors, that the right bonds might be searched for, and delivered. Directions were accordingly given for this purpose to the prisoner, who kept the key of the chest in which they were deposited in the vault; but instead of so doing, he took an opportunity of going away. His flight created suspicion; and upon opening his desk two India Bonds were found, which had a little time before been brought in by order of the Court of Chancery. Upon further inspection it was found, that the bonds belonging to the cause of Broome v. Broome were taken away; and it was proved, that the prisoner had carried six of them to a Broker, who sold them for the prisoner's account, and paid him the produce. It also appeared that the bonds in question had never been deposited in the vault; but that the prisoner, when he received them from the Court of Chancery, had locked them up in his own desk, and had converted their produce to his own use. It also appeared that the prisoner had given security to the Bank for his fidelity.

WYNNE, AGAR, KETTLEBY, and HAYWARD, Serjeants, contended in favour of the prisoner, that he was not guilty of felony, within the meaning of the Act of Parliament on which the indictment was founded. The 2 Geo. II. c. 25. s. 3. enacts," That if any person or persons shall steal, or "take by robbery, any of the securities mentioned in the "Act, notwithstanding any of the said particulars are term"ed in law a chose in action, it shall be deemed and con

1743.

WAITE'S
CASE.

But see the statute 39 Geo. III. c. 85.

"strued to be a felony of the same nature, and in the same "degree, as it would have been if the offender had stolen,

66

or taken by robbery, any other goods of the like value "with the money due on such securities, &c." It is evident from the words of this Act, that the Legislature did not intend to alter the nature of the offence of larceny, as it stands upon the grounds and principles of the Common Law; but only meant to introduce a new species of property as the subject of felony, the stealing, or the taking of which by robbery is punishable in the same degree and manner as if the offender had taken goods or money to the same amount. It cannot be pretended that the taking imputed to the prisoner was by robbery, for that requires force; if therefore he has been guilty of any crime within this statute, it must be that of simple grand larceny. The facts are, that the prisoner was Cashier, or servant, to the Directors of the Bank, and has given security to them, not merely to answer for any accidental occurrence or misfortune, but generally, for the faithful performance of the trusts reposed in him. A special property in these India Bonds undoubtedly resides with the Governor and Company of the Bank of England; but the Directors had committed them to the custody and controul of the prisoner, as their Cashier, under a confidence that he would not betray his trust; and this trust is in some measure directed by the Legislature itself; for by the 12 Geo. I. c. 32. it is a Cashier alone who can give a receipt for the bonds paid in by the Court of Chancery. Now by the rules of the Common Law, where property is delivered to the custody and possession of another in trust, he cannot be guilty of felony in taking it away. He may abuse the confidence reposed in him, by converting the property to his own use, but this subsequent act cannot alter the nature of the original contract. Many authorities might be produced to confirm this position. It has been universally admitted, that if a carrier go away with goods entrusted to him, and sell them, it is not felony. 3 Inst. 102. 1 Hale, 504. 13 Edw. 4. 9 Staund. 25. Kely. 35. 1 Roll. Abr. 73. But it may be said, that although the prisoner had the pos