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245 refer to the prisoner, as all that was alleged to be done was alleged to be done by him. 3rdly. That the indictment did not state any former conviction, because neither the plea nor the verdict of the jury was recited; but the learned judge thought the allegation that he had been in due course of law tried and convicted, together with a statement of the judgment, was sufficient. 4thly. That the recital of the former record showed a conviction of the prisoner and T. P., whereas the record produced showed that the prisoner alone had been convicted and T. P. acquitted, and therefore there was a variance; the learned judge overruled this objection also, but entertaining some doubt upon the point, he reserved the case for the opinion of the judges, who held the conviction right. (s)

SEC. II.

Of Uttering, Tendering, &c., Foreign Counterfeit Coin, &c.

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By the 24 & 25 Vict. c. 99, s. 20, Whosoever shall tender, utter, or put off any such false or counterfeit coin resembling or apparently intended to resemble or pass for any gold or silver coin of any foreign prince, state, or country, (t) knowing the same to be false or counterfeit, shall, in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding six months, with or without hard labour.' (u)

Sec. 21. 'Whosoever, having been so convicted as in the last preceding section mentioned, shall afterwards commit the like offence of tendering, uttering, or putting off any such false or counterfeit coin as aforesaid, knowing the same to be false or counterfeit, shall in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement; and whosoever, having been so convicted of a second offence, shall afterwards commit the like offence of tendering, uttering, or putting off any such false or counterfeit coin as aforesaid, knowing the same to be false or counterfeit, shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement.' (v)

(s) R. v. Page, Hereford Spr. Ass. 1841, Coleridge, J., MSS. C. S. G., and 2 M. C. C. R. 219. The learned judge only reserved the last point, but he stated the others to the judges, that the prisoner might have the benefit of them, if he had been wrong in overruling them.

(t) See sec. 18, ante, p. 210.

(u) This clause is framed from the 37 Geo. 3, c. 126, s. 4, with such alterations in its terms as to make it correspond with the

rest of this Act. It is new in Ireland. As to hard labour, &c., see ante, p. 218.

(v) This clause is framed from the 37 Geo. 3, c. 126, s. 4. As to the indictment and proceedings, see sec. 37, ante, p. 235. Having in custody a greater number than five pieces of counterfeit foreign coin, whether current here or not, makes the party liable to punishment by proceedings before a jus tice of the peace, under sec. 23 of the statute.

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Sec. 13. Whosoever shall, with intent to defraud, tender, utter, or put off as or for any of the Queen's current gold or silver coin, any coin not being such current gold or silver coin, or any medal or piece of metal or mixed metals, resembling in size, figure, and colour the current coin as or for which the same shall be so tendered, uttered, or put off, such coin, medal, or piece of metal or mixed metals so tendered, uttered, or put off being of less value than the current coin as or for which the same shall be so tendered, uttered, or put off, shall, in England and Ireland be guilty of a misdemeanor, and in Scotland of a crime and offence, and being convicted thereof, shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding one year, with or without hard labour, and with or without solitary confinement.'

This clause is new. It is intended to meet the cases of uttering foreign coin or medals as and for the current coin of the realm. In order to bring a case within this clause, the coin or medal uttered must be of less value than the coin for which it was uttered, and must have been uttered with intent to defraud. (w)

The prisoner was indicted on the 24 & 25 Vict. c. 99, s. 13, for uttering a medal resembling in size, figure, and colour, a half sovereign. The medal was described as being made of metal, and of the same diameter as a half sovereign, and somewhat similar in colour. On the obverse there was the head of the Queen, similar to that on a half sovereign; but the legend was entirely different from that on the half sovereign, being Victoria, Queen of Great Britain,' instead of 'Victoria Dei Gratiâ. The medal was querled, but the querling was round and not square. The medal was of less value than a half sovereign. The coin was lost before a full description of it was given, and it was never shown to the jury. It was objected that 'figure' in the indictment meant the impression on the medal, and that such impression must be similar to the impression on the genuine coin for which it was uttered, and that there was no evidence that the medal resembled the half sovereign in size, figure, and colour. It was answered that figure' meant the general shape and outline of the medal, and that there was evidence for the jury; and the jury having convicted, it was held, on a case reserved, that there was some evidence that the medal, in size, figure, and colour resembled a half sovereign. ()

(w) See the interpretation clause, ante, p. 208.

(x) R. v. Robinson, R. & M. C. C. R. 413.

CHAPTER THE FIFTH.

OF BUYING, SELLING, RECEIVING, OR PAYING FOR COUNTERFEIT COIN AT A LOWER RATE THAN ITS DENOMINATION IMPORTS.

By the 24 & 25 Vict. c. 99, s. 6, 'Whosoever without lawful authority or excuse (the proof whereof shall lie on the party accused), shall buy, sell, receive, pay, or put off, or offer to buy, sell, receive, pay, or put off, any false or counterfeit coin resembling or apparently intended to resemble or pass for any of the Queen's current gold or silver coin at or for a lower rate or value than the same imports or was apparently intended to import, shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement; and in any indictment for any such offence as in this section aforesaid it shall be sufficient to allege that the party accused did buy, sell, receive, pay, or put off, or did offer to buy, sell, receive, pay, or put off the false or counterfeit coin at or for a lower rate or value than the same imports or was apparently intended to import, without alleging at or for what rate, price, or value the same was bought, sold, received, paid, or put off, or offered to be bought, sold, received, paid, or put off.' (a)

The words without lawful authority,' &c., were introduced in order to protect officers and others who are authorised to buy or procure false coin in order to detect coiners; under the former enactment every one who bought, &c., false coin was within its words.

The words of the former enactment were 'the same by its denomination imports, or was coined, or counterfeited for.' The words in italics have been substituted for them as more appropriately applying to counterfeit coin.

Under the former enactment it was necessary to allege in the indictment, and prove by evidence, the sum for which the coin was bought, &c. ; (b) the last part of this clause renders it unnecessary to allege the sum for which the coin was bought, &c., and consequently whatever the evidence on that point may be, there can be no variance between it and the allegation in the indictment, and all that need be proved is that the coin was bought, &c., at some lower rate or value than it imports.

(a) This clause is taken from the 2 Will. 4, c. 34, s. 6.

(b) R. v. Joyce, Carr. Supp. 184; R. v. Hedges, 3 C. & P. 410.

By the 24 & 25 Vict. c. 99, s. 14, Whosoever shall buy, sell, receive, pay, or put off, or offer to buy, sell, receive, pay, or put off any false or counterfeit coin resembling or apparently intended to resemble or pass for any of the Queen's current copper coin, at or for a lower rate or value than the same imports or was apparently intended to import, shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding seven years, and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement.' (c)

The mere vending of the money was not considered to come within the 8 & 9 Will. 3, c. 26, s. 6, unless it were done at a lower value than the coin imported; and it should be so stated in the indictment. (d)

If the names of the persons to whom the money was put off can be ascertained, they ought to be laid in the indictment; but if they cannot be ascertained the same rule applies as in stealing the property of persons unknown. (e)

(c) This clause is taken from part of sec. 12 of the 2 Will. 4, c. 34. As to the words in italics, see remarks on sec. 6, ante, p. 247.

(d) 1 East, P. C. c. 4, s. 27,
(e) Ibid.

p. 180.

CHAPTER THE SIXTH,

OF SERVING OR PROCURING OTHERS TO SERVE FOREIGN STATES.

ENTERING into the service of any foreign state without the consent of the King, or contracting with it any other engagement which subjects the party to an influence or control inconsistent with the allegiance due to our own sovereign, is, at common law, a high misdemeanor, and punishable accordingly. (a) Indeed it is considered as so high an offence to prefer the interest of a foreign state to that of our own, that any act is criminal which may but incline a man to do so; as to receive a pension from a foreign prince without the leave of the King. (b)

Where the defendants were indicted under the 59 Geo. 3, c. 69, now repealed by the 33 & 34 Vict. c. 90, s. 31, infra, for engaging and procuring at Liverpool men to enlist as sailors in the Confederate service; and it appeared that the men had been induced by the defendants to sign articles at Liverpool to serve in the Japan' on a voyage to China, and they embarked on board her, and she sailed to the British Channel, and anchored off Brest, and the next day a captain of the Confederate navy enlisted the men in that service; Cockburn, C. J., held that the question was, whether the defendants procured the sailors to embark at Liverpool for the purpose of their being employed in the service of the Confederate States. If they procured the sailors to embark on board the 'Japan' and sail to a foreign country, to be there enlisted in the Confederate service, they were guilty, and it was sufficient if that was the intention of the defendants, although the men themselves did not go with that intention. (c)

An indictment on the 59 Geo. 3, c. 69, now repealed, contained counts for causing, &c., men to enlist in the Confederate service as sailors, &c., and for counselling men here to enlist in that service abroad, and for assisting the equipment of a vessel for that service. An old iron steam gunboat dismantled of all her guns and warlike equipments, and stripped of her armour-plates, masts, spars, and sails, and with only her engines and boilers in her, was sold by the Government to a firm, who bought her with a view to her being engaged in the Confederate service. Leave was obtained from the Admiralty to have the vessel docked and repaired at Sheerness, and the defendant, who was one of the dockyard officials, had rendered every assistance.

(a) 1 East, P. C. c. 2, s. 23, p. 81. 4 Blac. Com. 122.

(b) 1 Hawk. P. C. c. 22, s. 3. 4 Blac. Com. 121. 3 Inst. 144.

(c) R. v. Jones, 4 F. & F. 25. But see now 33 & 34 Vict. c. 90, s. 6, post, p. 252.

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