the 9 Geo. 4, c. 92, s. 8; but Erle, J., held that the property was properly described; and that the term 'trustees' in the 7 Geo. 4, c. 64, s. 14, must be taken to refer to trustees of savings' banks, and that the 9 Geo. 4, c. 92, s. 8, did not take away the right to lay the property under the preceding Act. (t) Loan societies. - By 3 & 4 Vict. c. 110, (u) (entitled an Act to amend the law relating to Loan Societies), s. 8, it is enacted, 'that all monies and securities for money, and all chattels whatsoever, belonging to any society, shall be vested in a trustee or trustees for the use and benefit of such society and the members thereof, their executors and administrators respectively, according to their several shares and interests therein, and after the death, resignation, or removal of any trustee or trustees shall vest in the surviving or succeeding trustee or trustees for the same estate and interest as the former trustee or trustees had therein, and subject to the same trusts, without any assignment or conveyance whatever, and also shall for all purposes of suit, as well criminal as civil, at law or in equity, in anywise concerning the same, be deemed to be the property of the person or persons appointed to the office of trustee or trustees of such society for the time being, in his or their proper name or names without further description; and such person or persons are hereby respectively authorized to bring or defend, or cause to be brought or defended, any suit, criminal as well as civil, at law or in equity, concerning the property or any claim of such society, and to sue and be sued, plead and be impleaded, in his or their proper name or names, as trustee or trustees of such society, without any other description, and no suit shall abate or be discontinued by the death of such person or persons, or his or their removal from the office of trustee or trustees, as aforesaid, but the same shall and may be proceeded in and by or against the succeeding trustee or trustees, and such succeeding trustee or trustees shall pay or receive like costs for the benefit of or to be reimbursed from the funds of such society as if the suit had been commenced in his or their name or names.' Benefit building societies. By 37 & 38 Vict. c. 42 (the Building Societies' Act, 1874), s. 9, every society upon receiving a certificate of incorporation under this Act becomes a body corporate by its registered name. Trade unions. By 34 & 35 Vict. c. 31 (the Trade Union Act, 1871), s. 8, all real and personal estate whatsoever belonging to any trade union registered under this Act shall be vested in the trustees for the time being of the trade union appointed as provided by this Act, for the use and benefit of such trade union and the members thereof, and the real or personal estate of any branch of a trade union shall be vested in the trustees of such branch, and be under the control of such trustees, their respective executors or administrators, according to their respective claims and interests, and upon the death or removal of any such trustees the same shall vest in the succeeding An (t) R. v. Bull, 1 Cox, C. C. 137. anonymous case is cited in this case, where it is said that Wightman, J., held that the 7 Geo. 4, c. 64, s. 14, only applied to ordinary trustees, and therefore property could not be laid in one churchwarden by name and others. (u) This Act is made perpetual by 26 & 27 Vict. c. 56. trustees for the same estate and interest as the former trustees had therein, and subject to the same trusts, without any conveyance or assignment whatsoever, save and except in the case of stocks and securities in the public funds of Great Britain and Ireland, which shall be transferred into the names of such new trustees; and in all actions, or suits, or indictments, or summary proceedings before any court of summary jurisdiction, touching or concerning any such property, the same shall be stated to be the property of the person or persons for the time being holding the said office of trustee, in their proper names, as trustees of such trade union, without any further description. By 39 & 40 Vict. c. 22, s. 3, the property of a registered trade union is vested in trustees, and may be stated to be their property in any indictment in their proper names as trustees of such trade union without further description. (v) Custom House Property. By 39 & 40 Vict. c. 36, s. 29, any moneys, chattels, or valuable securities, which may be received in the service of the Customs, may be stated in any indictment as the property of Her Majesty. Property sent by post. By the 1 Vict. c. 36, s. 40, letters, money, &c., sent by the post, may be laid as the property of the PostmasterGeneral. The separate property of a married woman may be laid as her property, (w) and it is not necessary to describe it as her husband's, which must be done if the goods are his, but in her possession. (x) The goods of a feme sole, who has since married may be laid in her maiden name. (y) What defects in indictments cured - Informal conclusions - How objections to be taken. By the 14 & 15 Vict. c. 100, s. 24, 'no indictment (2) for any offence shall be held insufficient for want of the averment of any matter unnecessary to be proved, nor for the omission of the words as appears by the record," or of the words "with force and arms," or of the words "against the peace," (a) nor for the insertion of the words "against the form of the statute," (b) instead of "against the form of the statutes," or vice versa, nor for that any person mentioned in the indictment is designated by a name of office, or other descriptive appellation, instead of his proper name, nor for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding (z) See the interpretation clause, s. 30, ante, p. 26. (a) Before this Act an indictment for a common law felony must have contained a contra pacem, and so must have an indictment for stealing articles, the stealing of which was made felony by statute; R. v. Cook, M.S., Bayley, J., and R. & R. 176. (b) See cases before this Act. Phipoe's case, 1795. 2 East, P. C. c. 16, s. 37. pp. 599, 601. Morgan's case, 2 East, P. C. c. 16, s. 37, p. 601. of the indictment, or on an impossible day, or on a day that never happened, nor for want of a proper or perfect venue, nor for want of a proper or formal conclusion, nor for want of or imperfection in the addition of any defendant, nor for want of the statement of the value or price of any matter or thing, or the amount of damage, injury, or spoil, in any case where the value or price, or the amount of damage, injury, or spoil, is not of the essence of the offence.' (c) An indictment for an indecent exposure of the person in the sight of A. and B., and divers of the liege subjects of the queen, concluded 'to the great scandal of the said liege subjects,' &c., and it was objected that it was bad because it did not conclude ad commune nocumentum; but it was held, on a case reserved, that the 14 & 15 Vict. c. 100, s. 24, rendered that conclusion unnecessary. (d) Sec. 25. Every objection to any indictment (e) for any formal defect apparent on the face thereof shall be taken, by demurrer or motion to quash such indictment, before the jury shall be sworn, and not afterwards; and every court before which any such objection shall be taken for any formal defect may, if it be thought necessary, cause the indictment to be forthwith amended in such particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared.' (f) The 7 Geo. 4, c. 64, s. 20, (g) professing to have for its object that the punishment of offenders might be less frequently interrupted in consequence of technical niceties, enacted that no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed,' upon certain grounds, which are all repeated in the 14 & 15 Vict. c. 100, s. 24. Unfortunately, however, that clause did not prevent these defects from being available on demurrer; but this mischief is now remedied by the section just mentioned, under which these defects are no longer available in any stage of the proceedings. (h) (c) The words in italics are new; the rest is from the 7 Geo. 4, c. 64, s. 20 (now repealed), which, after the words perfect venue, added where the Court shall appear by the indictment or information to have had jurisdiction over the offence;' which were advisedly omitted. It would seem that the words 'want of a proper or formal conclusion,' were introduced to render any conclusion perfectly unnecessary and immaterial. Where a count for misdemeanor charged, without any statement of venue, that certain persons unlawfully and tumultuously assembled, and committed certain alleged offences, and then added, with a statement of venue, that the defendants did unlawfully aid, abet, &c., the said persons to continue such unlawful assemblings, and other offences, it seems to have been thought that such count was bad; because it did not state a proper venue to the offence alleged to have been committd by the first-mentioned persons; but it was held to be cured by the 7 Geo. 4, c. 64, s. 20, because it consisted only in the want of a proper or perfect venue,' and the Court appeared by the in jurisdiction. R. v. See R. v. Albert, 5 Stowell, 5 Q. B. 44. dictment to have had (d) R. v. Holmes, Dears. C. C. 207; 22 L. J. M. C. 122. (e) See the interpretation clause, sec. 30, ante, p. 26. (f) By the common law many formal defects were amendable (see 1 Chitt. C. L. 297, and the cases there cited), and it has been the long-accustomed practice for the Grand Jury to consent, at the time they are sworn, that the Court should amend matters of form. This clause, therefore, rather revives an old than creates a new power. See also R. v. Chapple, 17 Cox, 455. (g) This section is repealed by 36 & 37 Vict. c. 91. (h) The conclusion to a count in an indictment against the form of the statute is now no longer necessary. Castro v. R., Ap. Cas. 229. See also R. v. Mayor of Poole, 19 Q. B. D. 602, note at p. 683. The 7 Geo. 4, c. 64, s. 21, enacts, 'that no judgment after verdict upon any indictment or information for any felony or misdemeanor shall be stayed or reversed for want of a similiter, nor by reason that the jury process has been awarded to a wrong officer upon an insufficient suggestion, nor for any misnomer or misdescription of the officer returning such process, or of any of the jurors, nor because any person has served upon the jury who has not been returned as a juror by the sheriff or other officer; and that where the offence charged has been created by any statute, or subjected to a greater degree of punishment, or excluded from the benefit of clergy by any statute, the indictment or information shall after verdict be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute.' (i) It was held that an indictment for false pretences must state the property obtained to belong to some person, and that, notwithstanding the preceding section, it was bad if it omitted to do so. (1) But this omission is cured by the 24 & 25 Vict. c. 96, s. 88. The prisoner was tried and convicted upon an indictment which alleged that he was guilty of corrupt practices, against the form, &c. It was proved at the trial that he had promised money to two voters. After verdict, it was objected that the indictment did not sufficiently describe the offence; it was held by Lord Coleridge, C. J., and Field and Mathew, JJ. (Denman and Day, JJ. dissenting), that the defect (if any) was cured by the verdict; by four judges, that the indictment was defective and might have been quashed before verdict; and by Field, J., that the indictment was sufficient by reason of 26 & 27 Vict. c. 29, s. 6, and 46 & 47 Vict. c. 51, s. 53. (k) Pleas in Abatement. The 7 Geo. 4, c. 64, s. 19, for preventing abuses from dilatory pleas,' enacts that no indictment or information shall be abated by reason of any dilatory plea of misnomer or of want of addition, or of wrong addition of the party offering such plea; if the court shall be satisfied by affidavit or otherwise of the truth of such plea; but in such case the court shall forthwith cause the indictment or information to be amended according to the truth, and shall call upon such party to plead thereto, and shall proceed as if no such dilatory plea had been pleaded. (1) Pleas of Autrefois Acquit and Autrefois Convict. Where a man is indicted for an offence and acquitted, he cannot be again indicted for the same offence, provided the first indictment (i) See R. v. Goldsmith, 12 Cox, C. C. 479, 42 L. J. M. C. 94, post, vol. 2. (j) R. v. Norton, 8 C. & P. 196; R. v. Martin, 8 A. & E. 481; vol. 2, R. v. Bullock, Dears. C. C. 653; Sill v. R., 1 E. & B. 553; 22 L. J. M. C. 41. (k) R. v. Stroulger, 17 Q. B. D. 327. (7) See 14 & 15 Vict. c. 100, s. 24, ante, p. 36; and see sec. 1 of this Act, noticed post, as to the power to amend. were such that he could have been lawfully convicted on it. If so indicted a second time, he may plead autrefois acquit. So a man may plead autrefois convict if he be indicted for an offence for which he has been previously convicted and sentenced by a proper and lawful judgment. The indictment charged the prisoners with burglariously breaking and entering the dwelling-house of M. Nevill and A. Nevill, with intent to steal their goods, and they pleaded a plea of autrefois acquit upon a former indictment, which charged them with burglariously breaking and entering the dwelling-house of M. Nevill and A. Nevill, and stealing goods of M. Nevill, goods of A. Nevill, and goods of one S. Gibbs. The plea concluded with averring that the burglary was the same identical burglary. To this plea there was a demurrer, which was argued before all the judges of England; and their opinion was afterwards delivered by Buller, J. The learned judge said, that it had been contended on behalf of the prisoners, that as the dwelling-house in which, and the time when, the burglary was charged to have been committed were precisely the same both in the indictment for the burglary and stealing the goods, on which they were acquitted, and in the indictment for the burglary with intent to steal the goods, which was then depending, the offence charged in both was, in contemplation of law, the same offence, and that of course the acquittal on the former indictment was a bar to all further proceedings on the latter. He then proceeded, 'It is quite clear, that at the time the felony was committed, there was only one act done, namely, the breaking of the dwelling-house. But this fact alone will not decide this case, for burglary is of two sorts: first, breaking and entering a dwelling-house in the night time, and stealing goods therein; secondly, breaking and entering a dwellinghouse in the night time, with intent to commit a felony, although the meditated felony be not in fact committed. The circumstance of breaking and entering the house is common and essential to both the species of this offence; but it does not of itself constitute the crime. in either of them; for it is necessary to the completion of burglary that there should not only be a breaking and entering, but the breaking and entering must be accompanied with a felony actually committed, or intended to be committed; and these two offences are so distinct in their nature, that evidence of one of them will not support an indictment for the other. (m) In the present case, therefore, (m) It is well established that an indictment for breaking and entering, &c., and stealing goods, will not be supported by evidence of a breaking and entering, &c., with intent to steal them. But it has been supposed that an indictment for breaking and entering, &c., with intent to steal, would be supported by evidence of breaking and entering, &c., and an actual stealing (vol. ii. Burglary). If this be so, the report of the judgment delivered by Buller, J., as here given, states the point too largely; as it seems to go to the extent of saying that evidence of a breaking and entering, and a felony actually committed, will not support an indictment for a breaking and entering, &c., and a felony intended to be committed. In 2 East, P. C. c. 15, s. 29, p. 520, the learned author observes upon this case, and says, Quare, whether the definition of the crime be not solely resolvable into the breaking, &c., with an intent to commit felony; AMERICAN NOTE. 1 By the Constitution of the United States "no person shall be subject for the same offence to be twice put in jeopardy of life or limb." This, although not binding upon the States, is generally accepted by them. In South Carolina, however, a person is only protected where he has been acquitted by a jury. See Bishop, Vol. i. ss. 981, 982. |