1846. PROUDFOOT v. POILE. the costs?] Secondly, the arbitrator has exceeded his POLLOCK, C. B.- I do not think we ought to interfere to set aside the award. It seems in every respect right, and if we thought otherwise, we should send it back to the arbitrator to amend it. ALDERSON, B., and ROLFE, B., concurred. Rule discharged. 527 COURT OF QUEEN'S QUEEN'S BENCH. Hilary Term. IN THE NINTH YEAR OF THE REIGN OF VICTORIA. Ex parte GEORGE CRITCHLEY. 1846. charge of embezzlement A RULE had been obtained in last Michaelmas Term, Where a be was pending before a magistrate, who doubts whether a partnership did not exist entertained prosecutor and that a warrant given to secure the payment of the monies charged to be embezzled, the charge The affidavit of George Critchley the elder, on which between the the rule was obtained, stated the following facts:-That in the accused November, 1844, the deponent's son became a partner with party: Held, Turner in the business of a shoemaker, and that the part- of attorney nership lasted about eleven months. That on the 17th of September, 1845, Turner, under the pretence that the deponent's son was his servant and not his partner, caused him to be arrested and taken before a magistrate, on a charge of embezzlement. That the prisoner was several times remanded at the instance of Turner, in order to enable him to bring further evidence, and ultimately admitted to bail to appear on a subsequent day. That prior to the last remand, an interview took place between the deponent, one Adwin, and Turner's attorney, at which which it was wards with invalid; as at the time of giving it, there was a was of charge of a criminal na ture pending, calculated to bring to an end. 1846. Ex parte CRITCHLEY. the latter, in answer to questions put to him as to the nature of the charge against the prisoner, said there were several charges of a very serious nature, amongst which were some for receiving and embezzling money, and for altering invoices sent with goods; also one for stealing certain shoes, and various other charges, which would certaily send the accused out of the country; and that if Adwin wished to say anything about the matter he had better come alone, as he (the attorney) objected to any third party being present. That afterwards several other interviews took place between Turner, and his solicitor, and the deponent; and that it was ultimately arranged, that a certain sum of money should be paid down, and that security should be given for any further sum which might be found due from the accused to Turner; and that upon such security being given, the proceedings before the magistrate should be abandoned, and that Turner's attorney should acquaint the magistrate that the charge could not be sustained for want of sufficient evidence. That on the 13th of October, the warrant of attorney in question was accordingly given by the deponent, the accused, his sister and brother-in-law; and that on the 15th of October, to which day the examination of the charge had been adjourned, the attorney for Turner informed the magistrate, that counsel's opinion having been taken, it was found that the charge could not be sustained, and the prisoner was then accordingly discharged. The deponent also stated that he was induced to sign the warrant of attorney by his desire to save his son the disgrace of a trial, and under the belief that on an inspection of accounts he would not be called on to pay the warrant of attorney. The affidavits in answer did not deny that the warrant of attorney was given to secure the payment of certain sums due to Turner from the accused, and that charges of embezzlement had been preferred; but denied that the warrant of attorney was given to compromise any charge of embezzlement. They stated that at an interview between the parties, account books had been produced, and that the accused had then admitted the sum for which the warrant was given to be due from him to Turner. That the defence set up before the magistrate was, that the accused and Turner were partners; and that the evidence that Turner himself had given before the magistrate was, that he had agreed with the accused that the latter should share the profits of the business with him, besides other advantages. That the magistrate himself had expressed great doubt whether, under the circumstances, the charge of embezzlement could be sustained, and that the charge of stealing was withdrawn before the settlement. One of the affidavits also stated, that at the time of the settlement the deponent well knew that "no felony was compounded or compromised, as the same had long before been abandoned, and never could be, or was proved, or substantiated, it being altogether doubtful whether any criminal charge whatever could have been legally established.” Pigott (with whom was Crowder) now shewed cause. It is not denied that a warrant of attorney given to compound a felony would be void; but here the affidavits shew that no felony has been committed; for the charge of embezzlement could not be sustained if the parties were partners, as the evidence shewed they were, and the charge of stealing the shoes was withdrawn before the warrant of attorney was given. It is not necessary to constitute a partnership that the parties should share the loss as well as the profit. If no felony had been committed, and the warrant of attorney was only given to secure a debt due from Critchley the younger to Turner, as our affidavits shew; it does not signify whether Turner had at one time proposed to treat it as a criminal charge. In Ward v. Lloyd (a) the ground alleged for setting aside a warrant of attorney was, that it was obtained from the defendant by VOL. III. (a) 6 M. & G. 785; S. C. 7 Scott, N. R. 499. M M D. & L. 1846. Ex parte CRITCHLEY. 1846. a threat of prosecution for felony; but it was held that that was no sufficient ground, unless it distinctly appeared that CRITCHLEY. there was an agreement by the plaintiff, either express or Ex parte necessarily implied, to abstain from prosecuting upon the security being given. Here we distinctly deny that there was any such agreement; the fact of the books being referred to, shews that the parties considered it as a civil, and not a criminal matter. Petersdorff, in support of the rule. It is not necessary that there should have been an indictable offence committed, upon which a conviction might be obtained. It is sufficient that at the time there was a charge of a criminal nature pending; that the warrant of attorney was given for part of the monies included in that charge, and that that charge was afterwards withdrawn. The Court will see that if in a case like the present the warrant of attorney were held valid, nothing could be easier then for parties to defeat, in almost every case, the ends of justice. [He was then stopped.] WILLIAMS, J.-It appears to me perfectly clear, when we attend to the dates and real nature of this transaction, that the illegality of this security is attempted to be hid under a very thin disguise. Mr. Pigott has presented the case as favourably as the facts would permit; but I think there is very little doubt at all. In the case which has been cited (a), the Court does not seem to have thought that there was any ground at all for assuming that any criminal proceedings were about to be taken. In the present case, on the contrary, it is not disputed that a criminal prosecution was pending at the time when the warrant of attorney was given. Now, what induced Critchley to give this warrant of attorney? If there had been anything to shew that the criminal prosecution had ceased, and that resort (a) 6 M. & G. 785; S. C. 7 Scott, N. R. 499. |