1829. GALLOWAY'S Case. argument founded on indictments for forgery totally failed; that the count for forging and the count for uttering were by no means repugnant to each other in reason or experience; that the same man might forge a bank note or other negotiable instrument, and utter it the very moment it was forged, so as to constitute one continuous act, and during the continuance of the one pound bank notes, the case occurred almost daily. The learned RECORDER observed also, that the same judgment was necessarily consequent upon either of the counts; but in the present case, the judgment on the first count extends to transportation for life, on the second count it cannot exceed fourteen years. And that if the two counts in the present indictment were not repugnant, upon the same principle it might be contended that bigamy, and felonious cutting and maiming, could be united in different counts in the same indictment. And if the offences in the first and second counts are distinct and separate felonies, repugnant to each other, it follows, of course, that by uniting them in one indictment, the prisoners would be deprived of the right of challenge, to which they would be unquestionably entitled if they were, as it is contended they ought to be, made each of them a separate indictment. On these grounds the learned RECORDER submitted to the consideration of THE JUDGES the legality of this conviction. This case having been in part discussed in Easter Term, was finally considered at a meeting of ALL THE JUDGES in Trinity Term, 1829, and they were unanimously of opinion that the charges might legally be joined, and the conviction was affirmed; but they were equally divided on the question, whether the prosecutor should have been put to his election, and thereupon they all agreed that directions should be given to the respective clerks of assize not to put both charges in the same indictment. 1829. REX v. JOHN BURTON. ment under 7 & 8 G. 4. the c. 29. s. 47. employed to collect the money from person sacrament the commu. the minister, THE prisoner was tried and convicted of embezzle- In an indictment before LORD TENTERDEN, at the Summer assizes for Derbyshire, 1829, on the following indictment, That John Burton, late of the township of Chaddesden in the county of Derby, labourer, on 21st June in the 10th year &c., at &c., was a person employed and entrusted in the capacity of a servant by Richard nicants is not Coke Wilmot, to receive money for and on account of the servant of the said R. C. W., and being such person so employed churchwarand entrusted in the capacity of servant as aforesaid, did dens, or poor. then and there by virtue of such employment receive and take into his possession certain money, to wit, the sum of 5s., for and on the account of the said R. C. W., and afterwards, to wit, on the same &c., with force and arms, at &c., fraudulently and feloniously did embezzle and secrete the said money, and so the Jurors aforesaid, upon their oath aforesaid, and do say that the said J. Burton, in manner and form aforesaid, feloniously did steal, take, and carry away from the said R. C. W. the said sum of 5s. of the monies of the said R. C. W., for whose use and on whose account the same was delivered to and taken into the possession of the said J. Burton, being such person so employed and entrusted in the capacity of a servant as aforesaid, against the form of the statute, &c., and against the peace. Second count. In the name aforesaid R. C. Wilmot. Third & fourth. W. Morley & Samuel Goodwin instead of R. C. Wilmot. Fifth & sixth. R. C. W., and said Morley & Goodwin. Seventh & eighth. Of the poor of the township of Chaddesden. R. C. Wilmot, who is named in the first and second counts, was curate of the perpetual curacy of the 1829. BURTON'S Case. township of Chaddesden (since made a parish), and Morden & Goodwin were the churchwardens. The prisoner was the clerk of the chapelry. On the day mentioned in the indictment, being sacrament Sunday, he went to the pews of the several communicants with a plate, to collect the alms, and then took the plate to the altar, and delivered it to Mr. Wilmot, who then put in his own donation. This was according to practice. It was very clearly proved, that the prisoner purloined two half-crown pieces from the plate, and secreted them in his pocket for his own use. It was objected, that he was not the servant, nor employed in the capacity of a servant, of any or either of the persons named in the indictment; and also that the money received as alms, was not the money of them, or any, or either of them. Reference was made to that part of the rubrick which directs that the deacons, churchwardens, or other fit persons appointed for the purpose, shall receive the alms for the poor, and other devotions of the people, in a decent basin, to be provided by the parish for that purpose, and reverently bring it to the priest, who shall humbly present and place it upon the holy table and also, to the last paragraph of the rubrick, which directs that the money shall be disposed of to such pious and charitable uses as the minister and churchwardens shall think fit, wherein, if they disagree, it shall be disposed of as the ordinary shall direct. There had been no disagreement on this subject at Chaddesden. The learned LORD CHIEF JUSTICE had conversed with the L. C. BARON, who was on the same circuit, on this indictment, before the trial: and they both doubted whether the case was within the stat. 7 & 8 G. 4 c. 29. s. 47., and his LORDSHIP respited the judgment, in order that the opinion of the learned JUDGES might be taken. At a meeting of THE JUDGES, in Michaelmas Term, 1829, this case was discussed; and THe Judges thought that the prisoner was not the servant of any of the persons alleged in the indictment, and a pardon was recommended. 1829. BURTON'S Case. REX v. WILLIAM TURNER and WILLIAM READER. THESE prisoners were tried and convicted of arson, before Mr. JUSTICE PARKE, at the Summer assizes for Cambridge, on the following indictment. 1829. If a statute makes it cri minal to do an act unlawfully and malici ously, an indictment must state done unlaw First count. That William Turner, late of &C., and William Reader, late of &c., not having the fear of God before their eyes, but being, moved and that it was seduced by the instigation of the devil, on the 31st fully; stating day of March, in the 10th year &c., with force and that it was arms &c., at &c., a certain barn of one Benjamin ously, volunKeene, there situated, feloniously, voluntarily, and tarily, and maliciously, is maliciously, did set fire to, and burn, against the not enough. peace &c. Second. That prisoners afterwards, to wit, on &c., with force and arms, at &c., a certain stack of straw of one William Chalk, there situate, feloniously, voluntarily, and maliciously, did set fire to, with intent thereby, then and there, to injure the said W. C., to the great damage &c., against the form &c., and against the peace &c. Third. That prisoners afterwards, to wit, on same &c., with force &c., at &c., a certain barn ofone B. Keene, done feloni 1829. TURNER'S there &c., feloniously, voluntarily, and maliciously, set fire to, with intent thereby, then and there, to injure the said B. Keene, to the great damage &c., and against the form &c., and against the peace. Fourth. And the Jurors, aforesaid &c., that the defendants afterwards, to wit on same &c., with force and arms, at &c., a certain barn of one William Chalk, there situate, feloniously, voluntarily, and maliciously, set fire to, with intent thereby, then and there to injure the said W. C., to the great damage &c., against the form and against the peace. The 7 & 8 G. 4. c. 30. s. 2. provides, that if any person shall unlawfully and maliciously set fire to any house, stable, coach-house, out-house, warehouse, office, shop, mill, malt-house, hop-oust, barn, or granary, with intent &c., every such offender shall be guilty of felony &c.; s. 17. provides, that if any person shall unlawfully and maliciously set fire to any stack of corn, grain, pulse, straw, hay, or wood, every such offender shall be guilty of felony, &c. It appeared in evidence, that the prisoners set fire to a haulm-stack. This stack was made, according to the account of one witness, partly of straw, there being two or three loads of it at the bottom; and the residue of haulm, that is, the aftermath of the stubble of rye or wheat about eighteen inches long. According to one witness, the straw and haulm were mixed. The stack was placed at the end of a barn, partly to keep the cold winds off the straw-yard, partly to lay up the straw and haulm for use. This stack was close against the end of a wheat barn, in which there was no wheat, but two or three loads of straw. The barn was timber-built and thatched. The stack was also about fifteen or twenty feet from a barley barn, thatched and boarded, in which was a mow of oats, and some straw. The fire communicated from |