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C. P.]

VESTRY OF BERMONDSEY (apps.) v. Ramsay (resp.)

[C. P. 11. On the 16th July 1869, a notice was served notice, and he is empowered to deduct the pay. on the defendant, who was the then occupier of ments from his rent. The charge of 38l. 58. 4d. the said premises, pursuant to the 96th section of became payable in 1866, when Soper was owner, the 25 & 26 Vict. c. 102, requiring her to pay

the

and a judgment was obtained in this court against said amount of 381. 58. 4d., and further giving her him in an action for that amount on the 6th Nov. notice not to pay any rent to her landlord without 1866. Herbert subsequently became owner, and first deducting the said sum of 381. 58. 4d.

the respondent occupied the premises as his tenant. 12. Application was made to the defendant by It is not contended that under the circumstances the plaintiffs to disclose the amount of the rent stated in the case, the respondent would not as payable by her in respect of the said premises, but the present occupier be liable to pay the unpaid she wholly refused to disclose the same.

proportion of the paving rate, unless the judgment Upon the above state of facts judgment was recovered against Soper is a bar to an action. The given for the defendant, but on the application of statute 25 & 26 Vict. c. 102, for the first time gires counsel for the plaintiffs the judge of the said a remedy by action to recover those charges. The Southwark County Court reserved for the opinion question therefore to be decided, viz., whether of this court the following question: Whether the the judgment obtained against the former owner plaintiffs having proceeded and obtained judgment is a bar to the remedy by action against the against a former owner of the said premises for the occupier, is one of the first impression, and it amount of the proportion of the expenses of paving is necessary to ascertain the nature of the obligathe said street, and the said judgment being tion imposed by the above-mentioned statute. In still unsatisfied, and the plaintiffs having the first instance the statute creates a personal taken no proceedings to enforce the same obligation on the owner “present or future," and against the said judgment - debtor, and not further, to secure the payment, imposes a kind of having issued execution and registered the indirect charge on the land. The 96th section imsame in order to charge the said premises as poses the obligation to pay, and gives the remedy against a mortgagee or purchaser in manner against either the owner or any person who then, provided by the statues 23 & 24 Vict. c. 38, and “or at any time thereafter, occupies the premises." 27 & 28 Vict. c. 112, the said plaintiffs are entitled These obligations, and the remedies given to ento proceed against a subsequent owner or occupier force them, appear to us to be independent and under the provisions of the said before mentioned cumulative, and, as a consequence of so holding, Act or Acts for the recovery of the said amount of we think the remedies may be resorted to in sucthe proportion of expenses of paving the said cession until the charge is satisfied by payment, street. If the Court of Common Pleas shall be of subject when necessary to the equitable jurisopinion that the obtaining of the said judgment diction exercised by the court to restrain against the said John Richardson Soper does pre- vexatious actions. The obligation is clearly clude the plaintiffs from proceeding as above a joint obligation, and the owner and mentioned, then the judgment in favour of the occupier could not be sued together. And this defendant to stand with costs of suit. But it being so, there is no objection of a technical otherwise then the judgment to be entered for the kind arising from a change of remedy to prevent plaintiffs for 381. 58. 4d. with costs of suit.

the occupier being sued after a judgment against Wills (E. Thomas with him), for the appellants, the owner. And we see no substantial ground cited Woodfall's Landlord and Tenant, 1867, edited arising from the nature of the obligation according by Cole, pp. 204, 209.

to our interpretation of the statute, to render the Poynter for respondent, cited Vestry of St. judgment alone without satisfaction a good answer. Pancras v. Batterbury (26 L. J. 243, C. P.)

No doubt in the case of a joint liability giving a

Cur. adv. vult, joint cause of action against several, the recovery April 29.-M. SMITH, J., delivered the judgment of judgment against one of the obligees is a bar to of the court (Willes, M. Smith, and Brett, JJ.).- an action against the other: (King v. Hoare 13 In this appeal from the judge of the Southwark M. & W. 494.) But this is not so where the liabiCounty Court, which was argued before my lity is joint and several, or where several parties brothers Willes and Brett and myself, the question are independently and collaterally bound by the is whether an unsatisfied judgment recovered by same obligation. The principle is well expressed the vestry for 381. 58. 4d., in respect of the expense by Lord Ellenborough, C. J. in Drake v. Mitchell of paving a street under the Metropolis Local (3 East, 251). In that case one of these joint Management Acts, against a former owner of the covenantors had given a bill of exchange for tenements occupied by the respondent, as tenant the debt secured by the covenant, on which under a succeeding owner, is a bar to an action bill judgment was recovered, and it was held against the respondent as such occupier. The that this judgment was no bar to an action 25 & 26 Vict. c. 102, s. 77, makes such expenses of covenant against the three. Lord Ellenrecoverable" from the present or any future owner borough said, “I have always understood the of the property" either by action at law principle of transit in rem judicatam to relate or in a summary manner before a justice of the only to the particular cause of action in which the peace, at the option of the vestry.” The 96th judgment is recovered operating as a change of section empowers the vestry to require the pay- remedy from its being of a higher nature than ment “either from the owner or from any person before. But a judgment recovered in any form of who then or at any time thereafter occupies action is still but a security for the original cause the premises," and enacts "that such owner of action, until it be made productive in satisfacor occupier shall be liable to pay the same, tion to the party, and, therefore, till then it cannot and the same shall be recovered in the manner operate to change any other collateral concurrent authorised by the Act.”. The occupier is only remedy which the party may have.". In the preliable under the provisions of the Act to the sent case, the judgment recovered against the extent of rent actually due or accruing due after owner has created a change of remedy quoad him ;

not

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C. CAs. R.]

REG. v. THOMAN--REG. v. BAILEY.

[C. Cas. R.

but we think it does not operate to affect the property, &c., to an amount exceeding 51., shall be collateral concurrent remedy against the occupier. | guilty of a misdemeanor.” Value, therefore, is of the The principle is illustrated by the familiar instance essence of the offence, and a value should be put on of actions against the several parties to a bill of each article alleged to be injured in the indictment. exchange, and by the cases, which have a close In Rex v. Forsyth (Rus. & Ry. 274), the prisoner (a analogy to the present, of principals and sureties bankrupt) was indicted under the Bankruptcy Act in which the recovery of judgment against one for concealing property to the amount of 201., and party is no bar to actions against the other. For the value was ascribed to all the articles collecthese reasons, we think the appellants are entitled tively, and it was held necessary to make out the to maintain the action, and, consequently, that the offence as to every one of the articles. (Martin, B., judgment given for the defendant must be re referred to the 14 & 15 Vict. c. 100, s. 23, which versed, and the judgment entered for the plaintiffs, enacts (inter alia) that no indictment shall be inwith costs.

sufficient for want of the statement of the value Judgment for allants. or price of any matter or thing, or the amount of Attorneys for plaintiffs, Drew and Wilkinson. damage, injury, or spoil in any case where the

Attorneys for defendants, Morris, Stone, Town value or price, or the amount of damage, injury, or 801t, and Morris.

spoil is not of the essence of the offence.j That does not apply where value is of the essence of the

offence, as in this case. [Bovill, C.J.—The amount CROWN CASES RESERVED. of damage is of the essence of the offence here, and Reported by John THOMPSON, Esq., Barrister-at-Law. not the value of the several articles damaged.] In

Reg. v. Williams, (9 Cox Crim. Cas. 338), it was held Saturday, April 22, 1871.

that damage committed at several times in the (Before Bovill, C. J., Martin and BRAMWELL, BB.,

aggregate, but not at any one time exceeding 51., Byles and BLACKBURN, JJ.)

will uot sustain an indictment under 24 & 25 Vict.

c. 97, s. 51. REG. v. THOMAN. Indictment-Malicious injury-Statement of the

Royles, for the prosecution. The value of the

articles damaged is not the essence of the offence, amount of damage dome. In an indictment under 24 & 25 Vict. c. 97, s. 51,

but the amount of the damage done is. for maliciously damaging personal property, the

Bovill, C.J.-We are all of opinion that it was damage exceeding 51., it is not necessary to alleye

not material to allege the value of the several the value of the articles injured, but only that the

articles in the indictment, but only to allege that amount of the dumage done to the several articles

the amount of the damage exceeded 5l. The conexceeded 51. in the aggregate.

viction must therefore be affirmed. Case reserved for the decision of this court.

Conviction affirmed. At the general quarter sessions of the peace holden by adjournment at St. Mary, Newington, in and for the county of Surrey, on Monday, the

REG. v. BAILEY. 6th Feb. 1871, Margareth Thoman was tried and convicted upon the following indictment:

EmbezzlementClerk and servant--Traveller and

collector. Surrey.--The jurors for our lady the Queen, upon their oath present, that Margareth Thoman, on the 30th The prisoner was employed as traveller to solicit Jan. 1871, in and upon three frocks, six petticoats, orders, and collect the moneys due on the execution one flannel petticoat, one flannel vest, one pinafore, of the orders, and to pay over money on the evenone jacket, one pair of knickerbockers, one flannel ing of the day when collected, or the day following. night gown, one woollen cape, one sash, one table cloth, one sheet, three hats, and one brooch of the value

The prisoner had no salary, but was paid by com, of twenty pounds, and of the property of Gilbert Alder,

mission. The prisoner might get orders when and unlawfully and maliciously did commit certain damage, where he pleased within his district. He was to injury, and spoil to an amount exceeding five pounds, by be exclusively in the employ of the prosecutors, and unlawfully and maliciously cutting and destroying the to give the whole of his time--the whole of every same against the form of the statute in such case made and provided.

day, to their service:

Held, that the prisoner was a clerk and servant At the trial the prisoner's counsel objected that within the Embezzlement Clause, sect. 68 of the indictment was bad, because the value of the

24 & 25 Vict. c. 96. articles damaged was ascribed to them collectively

Case reserved for the decision of this court. and not individually, and he contended that the value of each class of article ought to have been

The prisoner was tried before me at the Michael. stated separately.

mas Quarter Sessions of the peace, holden by The court overruled the objection, but reserved

adjournment at Sheffield, in and for the West the point for the decision of the court for conside

Riding of the county of York, on the 28th Nov. ration of Crown Cases Reserved.

1870, upon an indictment which charged him with Judgment upon the prisoner was respited until

having feloniously embezzled several sums of the decision of such court should be known, and

money, the property of Joseph Hall, and another,

his masters. the prisoner was committed to the custody of the

The prosecutors, the said Joseph Hall and governor of the common gaol at Newington, in the

Charles Haslehurst Greaves, who carried on busisaid county. WM. FREDK. Harrison, Chairman.

ness in partnership in Sheffield as brewers and

wine and spirit dealers, under the firm of William Morgan Thomas (Poulter with him) for the pri- Greaves and Company, employed the prisoner from soner.-By the 24 & 25 Vict. c. 97.s. 51," whosoever 1861 to 1866 as traveller and bookkeeper, at a shall unlawfully and maliciously commit any weekly wage of 158. The prisoner then left the damage, injury, or spoil upon any real or personal prosecutors service and took other employment.

C. Cas. R.]

REG. v. TOWNLEY.

[C. Cas. R.

About three years after this the prisoner was was contended that the prisoner was not a clerk again engaged by Messrs. Greaves and Company or servant to the prosecutors within the meaning on a fresh agreement. The terms (which were not of the statute 24 & 25 Vict. c. 96. in writing) are stated in the evidence of Joseph I declined to stop the case, and directed the jury Hall to have been as follows:

to decide whether the prisoner had been proved by The prisoner was employed as traveller to the evidence of Joseph Hall to be a servant to the solicit orders for, and to collect the moneys prosecutors or not. The jury found the prisoner due on the execution of such orders by the guilty, judgment being respited until the opinion firm, and to pay over to the said Joseph Hall, of the Court of Criminal Appeal is pronounced or to Charles Haslehurst Greaves, or to the clerk upon the above objection, and defendant is on at the brewery in Sheffield, the total net amount bail. of the moneys so collected by the prisoner on The question for the opinion of this honourable the evening of the day when such moneys were court is, whether the prisoner, under the circum. so received by him, or on the day following, in stances herein stated, was a clerk or servant to case the prisoner should then be travelling at a the prosecutors, so as to be liable to be convicted distance from the brewery. In case the prisoner of the crime of embezzlement. had neither received money nor obtained orders,

WALTER SPENCER STANHOPE, Chairman. he was not expected to go to the brewery that day, No counsel appeared to argue for the prisoner. but when he came there it was his duty to enter in Forbes, for the prosecution. The conviction was the cash book of the firm the name and address of right. This case is distinguishable from Reg. v. the customer from whom he had received any Bowers, where the prisoner was paid by commismoney, the amount, the date of the receipt, and sion, and was at liberty to get orders or not, as he the discount allowed (if any) to the customer, and pleased, for in the present case the prisoner was to pay over to the firm the net amount of the bound to devote the whole of his time to the promoney received by him, the discount being secutors' service. In Reg. v. Turner (22 L. T. Rep. deducted. Every three months the prisoner had N. S. 278) it was held by Lush, J., that a traveller an account given to him of the various sums then who was bound to “diligently employ himself in owing by the customers to the firm, and it was the going from town to town in England, Ireland, and prisoner's duty to deliver these accounts, and apply Scotland, and soliciting orders for the prosecutor, for payment from the customers on presenting and who was not without the prosecutor's written them. In case such accounts were not paid, the consent to take or execute any order for vending firm enforced payment thereof. The prisoner had or disposing of similar goods to the prosecutors no authority to retain in his hands moneys belong for or on account of himself

or any other ing to the firm. He had to travel in the town of person, and who was to be paid by commission, Sheffield and neighbourhood. His district com- and to render weekly accounts, was a clerk or prised about six miles round Sheffield, and included servant within the 24 & 25 Vict. c. 96, s. 68. the town of Rotherham. He was to be exclusively [BRAMWELL, B.—The effect of the agreement here in the employment of the firm, to whom he was to is that the prisoner was not to be told how he give the whole of his time—the whole of every day. was to work, but still he was to do it. BLACKBURN, The prisoner had no salary, but was paid by a com- J.--He was a servant to do this kind of work, but mission of 5 per cent. on all orders for goods he might use his own discretion as to the way of obtained for the firm, and an additional 5 per cent. doing it.] In Bower's case it was optional with on the amount of cash collected by him on payment the prisoner whether he got any orders at all. by the customers for the goods supplied by the [Bovill, C.J., referred to Reg. v. T'ite (L. & C. 13; firm on such orders. The firm were to pay to the 8 Cox Crim. Cas. 458.) A traveller paid by comprisoner his commission every week, but this was mission and employed to get orders and to receive not always done with regularity, and the prisoner payments was held to be a clerk or servant, was not always regular in his attendance at the although he was at liberty to receive orders for brewery, and, although the firm complained of his other persons also. In this case the prisoner was irregularity, they did not discharge him.

bound to devote the whole of his time to the proIt was further stated by Joseph Hall on cross- secutors.) examination, that the prisoner could get orders Bovill, C.J.-The evidence in this case clearly when and where he pleased within his district, and showed that the prisoner was a clerk or servant that he had to collect money as soon as he could, within the statute. There is nothing in the evi. and as he chose. His duty was to go to both old dence inconsistent with that relation. Reg. v. Tite and new customers of the firm, and to collect conclusively shows that the prisoner was a clerk or money when and where he thought proper ; he was servant. The conviction will be affirmed. not bound by particular orders, he was at liberty

Conviction affirmed. to dispose of his time as he pleased, but he was to employ the whole of it in the service of the firm. It was proved and admitted by the prisoner on

REG. v. TOWNLEY. 21st Oct. that he had retained in his hands, and

Larceny -- Animals fere nature. had not accounted for, several sums of money Rabbits were netted, killed, and placed in a which he had received from the firm by virtue of place of deposit, e.g., a ditch, on the land of the the before-mentioned employment; the three sums owner of the soil on which the rabbits were caughi, charged in the indictment had been received by and some three hours afterwards the poachers came the prisoner on the 26th May, the 1st June, and to take them away, one of whom was captured by 26th Aug. respectively.

gamekeepers, who had previously found the rabbits During the course of the case the counsel for and lay in wait for the poachers, the prisoner called my attention to Reg. v. Bowers Held, that this did not amount to larceny. (L. Rep. 1 Cr. Cas. Res. 45; 10 Cox® C. C. 250), CASE reserved for the opinion of this Court by and at the close of the case for the prosecution it Blackburn J.

C. CAs. R.]

Reg. v. TOWNLEY.

[C. CAs. R.

are

.

The prisoner and one George Dunkley were in of the property.

Live rabbits animals dicted before me at the Northampton Spring ferre nature, and are not the subject of absolute Assizes for stealing 126 dead rabbits.

property; though at the same time they are a In one count they were laid as the property particular species of property ratione soli, or of William Hollis, in another as being the property rather the owner of the soil has the right of taking of the Queen.

them, and as soon as he has exercised that right they There were also counts for receiving.

become the absolute property of the owner of the It was proved that Selsey-forest is the property soil. That point was decided in Blades v. Higgs(sup.) of Her Majesty.

as to rabbits; and in Lonsdale v. Rigg (26 L. J. 196, An agreement between Mr. Hollis and the

Ex.), as to grouse. In this case the rabbits having Commissioners of the Woods and Forests on behalf been killed on land the property of the Crown, and of Her Majesty was given in evidence, which I left dead on the same ground, would therefore in thought amounted in legal effect merely to a the ordinary course of things have become the prolicence to Mr. Hollis to kill and take away the perty of the Crown. But before a person can game, and that the occupation of the soil and all become convicted of larceny of a thing attached to rights incident thereto remained in the Queen. the soil, there must not only be a severance of the No point, however, was reserved as to the proof of thing from the soil, but a felonious taking of it the property as laid in the indictment.

also after such severance. Such is the doctrine as The evidence showed that Mr. Hollis's keepers, applied to stealing trees and fruit therefrom, lead about eight in the morning on the 23rd Sept., dis from buildings, fixtures, and minerals. But if the covered 126 dead and newly killed rabbits and act of taking is continuous with the act of about 400 yards of net concealed in a ditch, in the severance, it is not larceny. The case of larceny of forest, behind a hedge, close to a road passing animals fere nature stands on the same principle. through the forest.

Where game is killed and falls on another's land, The rabbits were some in bags and some in it becomes the property of the owner of the land ; bundles, strapped together by the legs, and had but the mere fact that it has fallen on the land of evidently been placed there as a place of deposit another does not render a person taking it up by those who had netted the rabbits.

guilty of larceny, for there must be a sererance The keepers lay in wait, and about a quarter to between the act of killing and the act of taking eleven on the same day Townley and a man, who the game away. In the present case we must take escaped, came in a cab driven by Dunkley along it that the prisoner was one of the poachers, or the road. Townley and the man who escaped left connected with them. Under these circumstances, the cab in charge of Dunkley, and came into the we might come to the conclusion that it was a conforest, and went straight to the ditch where the tinuous act, and that the poachers netted, killed, rabbits were concealed, and began to remove them. packed up, and attempted to carry away the

The prisoners were not defended by counsel. rabbits in one continuous act, and therefore that

It was contended by the counsel for the prose the prisoner ought not to have been convicted of cution that the rabbits on being killed and reduced | larceny. into possession by a wrongdoer became the pro Martin, B.-I am of the same opinion. It is perty of the owner of the soil, in this case the Queen clear that if a person kills rabbits, and at the same (Blades v. Higgs, 32 L. J. 182, C. P.; 7 L. T. Rep. time carries them away, he is not guilty of larceny. N. S. 798, 834); and that even if it was not Then, when he kills rabbits and goes and hides larceny to kill and carry away the game at once, them, and comes back to carry them away, can it it was so here, because the killing and carrying be said that is larceny? A passage from Hale's away was not one continued act.

P. C. 510—“ If a man comes to steal trees, or the 1 Hale P. & C. 510, and Lee v. Risdon (7 Taunt. lead off a church or house, and sever it, and after 191) were cited.

about an hour's time or so come and fetch it away, The jury, in answer to questions from me, found it is felony, because the act is not continuated, but that the rabbits had been killed by poachers in interpolated, and in that interval the property Selsey-forest, on land in the same occupation and lodgeth in the right owner as a chattel, and so it ownership as the spot where they were found was argued by the Court of King's Bench, 9 Car. 1, hidden.

upon an indictment for stealing the lead off WestThat Townley removed them, knowing that they minster Abbey"-was relied on by the prosecuhad been so killed, but that it was not proved that tion. There is also a dictum of Gibbs, C.J., to the Dunkley had any such knowledge.

same effect in Lee v. Risdon (7 Taunt. 191). I am I thereupon directed a verdict of not guilty to not insensible to the effect of those dicta ; but here be entered as regarded Dunkley, and a verdict of we must take it as a fact that the poachers had no guilty as to Townley, subject to a case for the intention to abandon possession of the rabbits, but Court of Criminal Appeal.

put them in the ditch for convenience sake; and I It is to be taken as a fact that the poachers had concur in thinking that the true law is that, when no intention to abandon the wrongful possession the poachers go back for the purpose of taking of the rabbits which they had acquired by taking them away, in continuation of the original intenthem, but placed them in the ditch as a place of tion, it does not amount to larceny. deposit till they could conveniently remove them. BRAMWELL, B.-Our decision does not appear to

The question for the Court is whether on these me to be contrary to what Lord Hale and Gibbs, facts the prisoner was properly convicted of C.J., have said in the passages referred to. larceny.

If a man, having killed rabbits on the land The prisoner was admitted to bail.

of another, gets rid of them because he is in

COLIN BLACKBURN. terrupted, and then goes away and afterwards No counsel appeared to argue on either side. comes back to remove the rabbits, that is a

BOVILL, C. J. [After stating the facts.] The larceny; and so, if on being pursued he throws first question that arises is as to the nature them away; and it is difficult to perceive any dis

C. Cas. R.]

DRIVER v. THE KINGSTON HIGHWAY BOARD.

Ex.

tinction where the owner of a chattel attached to lying there, no one had any physical possession of the freehold finds it on his land severed, and the them, and that they were still left on the owner's person who severed afterwards comes and takes it soil ; but I do not see that that makes any difference. away. It is in those cases so left as to be in the Then there is the statement from Hale's P. C. 510, possession of the true owner, and the Act is not as where it is said that larceny cannot be committed Lord Hale expresses it, continuated. In this case, of things that adhere to the freehold, as trees, however, the rabbits were left by the poachers as or lead of a house, or the like, yet that the Court trespassers in a place of deposit, though it hap- of King's Bench decided that, where a man severed pened to be on the land of the owner; and it is lead from Westminster Abbey, and after about an just the same as if they had been taken and left at hour's time came and fetched it away, it was felony, a public house, or upon the land of a neighbour. because the act is not continuated but interpolated; If they had been left on the land of a neighbour or and Lord Hale refers to Dalton, c. 103, p. 166. And at a public house, could it have been said to be Gibbs, C. J. expressed the same view very clearly larceny? Clearly not; and if not, why it is lar- in Lee v. Risdon. Now, if that is to be understood ceny because uhe poachers left them in a place of as my brother Bramwell explained, I have no fault deposit on the owner's own land ? It seems to me to find with it; but if it is to be understood that

hat the case is not within the dicta of Lord Hale the mere fact that the chattel by the has been left for and Gibbs, C. J., but that here the act was con- a time on the land of the owner, and so has remained tinuated, and that there was an asportation by the the owner's property, and that the person coming to poachers to a place of deposit, where they remained take it away could be convicted of larceny, I cannot not in the owner's possession.

agree with it as at present advised. If we are to BYLES, J.-I cannot say that I have not enter- follow the view taken by my brother Bramwell of tained a doubt in this case; but upon the whole I these authorities, they do not apply here, for no think that this was not larceny. The wrongful one could suppose that the poachers ever parted taking of the rabbits was never abandoned by the with the possession of the rabbits. I agree that in poachers, for some of the rabbits were in their point of principle it cannot make any difference bags. It could hardly be said that if a poacher that the rabbits were left an hour or so in a place dropped a rabbit, that could convert it into larceny, of deposit on the owner's land. The passage from yet that would follow if the conviction were up- Lord Hale may be understood in the way my held.

brother Bramwell has interpreted it, and if so the BLACKBURN, J.-I am of the same opinion. Lar- facts do not bring this case within it. ceny has always been defined as the taking and

Conviction quashed. carrying away of the goods and chattels of another person; and was very early settled where the

COURT OF EXCHEQUER. thing taken was not a chattel, as where a tree was cut down and carried away that was not larceny,

Reported by H. Leigh and H. F. POOLEY, Esqrs., Barristersbecause the tree was not taken as a chattel out of the owner's possession, and because the severance of

SECOND DIVISION OF THE COURT. tree was accompanied by the taking of it away. The

April 25 and 27, 1871. same law applied to fruit, fixtures, minerals, and the like things, and statutes have been passed to

DRIVER v. THE KINGSTON HIGHWAY BOARD. make stealing in such cases larceny. Though in District Highway Board-Power of to repair roads the House of Lords, in Blades v. Higgs, it was in district Parish adopting Local Government decided that rabbits killed upon land became the Act 1858 Effect of on power of board to repair property of the owner of the land, it was expressly - Ultra vires-Liability of board for materials said that it did not follow that every poacher is for repairs supplied to their order--Highway Act guilty of larceny, because, as Lord Cranworth said, 1862 (25 & 26 Vict. c. 61), ss. 17, 20, 21, 41–

Wild animals, whilst living, though they are, Construction. according to Lord Holt, the property of the owner In Dec. 1865, the defendants (the K. Highway of the soil on which they are living, are not his Board), having jurisdiction under the Highway personal chattels so as to be the subject of larceny. Act 1862 (25 & 26 Vict. c. 61), over a district comThey partake, while living, of the quality of the prising, amongst other parishes, the parish of W. soil, and are, like growing fruit, considered as advertised for tenders for the supply of materials part of the realty. If a man enters my orchard for repairing the roads in W. in 1866, in answer and fills a wheelbarrow with apples, which he has to which the plaintiff sent in a tender, which was gathered from my trees, he is not guilty of larceny, accepted, whereupon a contract for such supply though he has certainly possessed himself of my was entered into by him with the defendants. In property; and the same principle is applicable to Jan. 1866 the defendants approved their surveyor's wild animals.” The principle is as old as 11 Year estimate of the approximate amount of expendiBook (par. 33), where it is reported that a forester ture for the several parishes, and by their direction who had cut down and carried away trees could not a call of 7681. was made upon the parish of W., one be arraigned for larceny, though it was a breach of moiety of which the parish paid in Feb. 1866, the trust; but it was said it would have been a different other moiety, after a dispute as to their liability, thing if the lord of the forest had out down the being paid by them in 1867. trees and the forester had carried them away, then On the 24th March 1866, the parish of W. passed a that would have been larceny. So that in the case resolution, under sect. 41 of the Highway Act 1862, of wild animals, if the act of killing and reducing the adopting the Local Government Act 1858, and animals into possession is all one and continuous, the the statutory requirements having been complied offence is not larceny. The jury have found in with, a notice, signed by the Home Secretary, this case that the prisoner knew all about the killing appeared in the London Gazette," on the 11th of the rabbits, and that they were lying in the ditch. May 1866, that at the expiration of two months It is clear that during the three hours they were from the passing of such resolution the said Act

at-Law.

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