1831. FAREBROTHER บ. WORSLEY. consent, and the cause was compromised, by an agreement on the part of the Sheriff to pay 2007. damages, and 4001. costs. This was less than the actual amount of the costs. The agreement was made with the assent of the other sureties, but not with the assent of the defendants, the executors. It appeared, however, that they did not require the Sheriff to proceed, but only said they would have nothing to do with it. The Sheriff's costs in this action were sought to be recovered, but not any part of the sum paid for the compromise. It was also sought to recover a sum of 80%. 14s., being the costs of an application by the Sheriff to postpone the trial of Wilton v. Farebrother, till a cause of Bernasconi v. Farebrother, involving the bankruptcy of Chambers, which had been tried once in the Court of King's Bench, should have been tried again. Erskine for the defendants.-It is for the Jury to say, under the direction of his Lordship, whether the Sheriff can recover any part of the costs of the cause of Wilton v. Farebrother, as it was compromised without the consent of the executors. It is admitted, that they were not parties to the compromise, therefore, they cannot be fairly implicated in any of the consequences arising from it. As the Sheriff thought proper to enter into a compromise with some of the sureties, to those sureties he must look, and not to those who refused to be parties to any such agreement. The costs, also, of putting off Wilton v. Farebrother were spontaneously incurred, and cannot be recovered. Lord LYNDHURST, C. B.-I have no doubt about these costs, my only doubt is as to any costs which are the result of a compromise. Jervis, for the plaintiffs.-The question is, did the executors protest against the compromise, did they insist on the Sheriff's going on and defending? It was necessary that the action should be defended, and it was defended up to a certain time, and the Sheriff exercised a sound discretion in compromising it. Erskine.-The Sheriff should not have come to such a compromise, unless he could shew that, if he had gone on, he must have been defeated. In Wilton v. Farebrother, the bankruptcy was to be made out by the Sheriff, and he did not prove the trading satisfactorily. That has since, in another case, been established; and if the Sheriff had gone on, he would eventually have succeeded, and received his costs from Wilton. Lord LYNDHURST, C. B.-There is no question for the Jury. There is no evidence at present before the Court, whether the Sheriff exercised a sound discretion in what he did. He has compromised a defended cause. Jervis.-It appears that Wilton's costs exceeded in amount the sum paid for them on the compromise. Lord LYNDHURST, C. B.-There is no knowing, if a new trial had been obtained, and a verdict had passed for the Sheriff, what arrangement the Court would have made with respect to the costs. It does not follow that the Court would have granted a new trial on payment of costs. It is possible, that, if the cause had gone on, Wilton would have had to pay the costs. Erskine.-If the costs were incurred in consequence of the Sheriff's neglecting to put in evidence which was in his power, who ought to bear them? Surely the Sheriff, whose conduct occasioned them, and not the bailiff, who had nothing to do with the matter. Lord LYNDHURST, C. B.-I should say, not at all; they conduct the defence, and do it as well as they can; they are defending for the bailiff. 1831. FAREBROTHER บ. WORSLEY. 1831. FAREBROTHER V. WORSLEY. Erskine. Then, with respect to the 81., the costs of the application to set aside the judgment?— Lord LYNDHURST, C. B.-I think, as to the 817., that it was an extremely reasonable act, to apply to the Court to get rid of the judgment. Erskine and Manning.-It is not within the covenant. The words are, "all costs of any motion in, or application to, the Court touching or concerning any matter, wherein the said bailiff shall act or assume to act." Lord LYNDHURST, C. B.-I think that covers such a transaction. I think the words, "touching or concerning," bring it within the covenant; but you shall not be concluded by my opinion here. Verdict for the plaintiffs, for the amount in the particulars of demand, with leave to move to reduce the damages by the two sums objected to: viz. the Sheriff's costs of the compromised action, and those of the motion to set aside the original judgment; the whole bill of costs to be subject to taxation. Jervis and Burchell, for the plaintiffs. Erskine and Manning, for the defendants. [Attornies-Smith & Son, and Arrowsmith.] Manning, (Erskine having been promoted to the office of Chief Judge of the New Court of Bankruptcy), obtained a rule, pursuant to the leave given at the trial, which, after argument, was Discharged. 107 OLD BAILEY MAY SESSION, 1831. BEFORE MR. JUSTICE LITTLEDALE, MR. BARON REX v. GEORGE SMITH. INDICTMENT on the stat. 55 Geo. 3, c. 184, s. 7. The first count of the indictment stated that the prisoner, on the 16th day of April, 1 Will. 4, feloniously and fraudulently did cut, tear, and get off from a certain piece of parchment, a certain impression of a die, provided, made, and used in pursuance of an act passed, 55 Geo. 3, intituled "An Act &c." for denoting a certain duty, to wit, of 251., with intent fraudulently to use it upon another piece of parchment. In the third count, the intent laid was an intent to use the impression on "another piece of parchment chargeable with duty." The fifth count stated it to be the impression of a die which had been thentofore made and used "in pursuance of the statute made and provided for denoting a certain duty, being one of the duties under the ed a blue paper stamp from the small piece of parchment to which it had been glued, and glued it to a new skin of parchment, on which the words "This indenture" had been written. The Jury found, that he had no fraudulent intent when he cut the stamp from the skin of parchment, but that he had when he separated the blue paper stamp from the small piece of parchment; and that he then intended to apply the stamp to a parchment intended to be used as an indenture:Held, that this was a capital offence. And it being uncertain whether the stamp so separated was impressed before or after the passing of the stat. 55 Geo. 3, c. 184, it was held, that the party might be properly convicted on a count stating the stamp to be the impression of a die made and used "in pursuance of the statute made and provided for denoting a certain duty, being one of those under the management of the commissioners of stamps." 1831. REX บ. SMITH. care and management of the commissioners of stamps of Great Britain." The second, fourth, and sixth counts laid an intent to use the stamp on vellum instead of parch ment. It appeared, that the prisoner was a junior clerk in the office for the allowance of spoiled stamps; and that, on the 9th of April, he was attending at that office, and it was his duty to cut off the corners of parchments, &c., on which the stamps allowed for as spoilt were, and to put the stamp, and the small piece of parchment to which it was glued, into the fire. It was proved that parchments are stamped by glueing a square piece of blue paper to the parchment, and stamping it with a heavy stamper. It was also proved, that one of the witnesses had procured for the prisoner two skins of parchment, on each of which the words "This indenture," were written; and that afterwards he desired the same witness to sell those two skins of parchment, each of the skins then bearing a 251. stamp affixed to it on blue paper; each of those blue paper stamps having been separated from the piece of parchment to which it had originally been glued. It appeared that 251. stamps were used before the 55 Geo. 3; but by the stat. 55 Geo. 3, c. 184, the commissioners of stamps have a power of ordering that dies before used, may be used after that act. To shew this to be a stamp used under that statute, the order-book of the commissioners of stamps was produced. In this book was contained an order of the commissioners of stamps, directing this die to be continued in use. This order was signed by the secretary who was dead, but his handwriting was proved. None of the witnesses could say whether the two blue paper stamps, which were the subject of the present indictment, had been impressed before or after the passing of the stat. 55 Geo. 3, c. 184. Adolphus, for the prisoner.-There are in this case two objections; the stat. 55 Geo. 3, c. 184, s. 7, makes it a felony |