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ment declared that the false swearing should be perjury. This act of Parliament appears to contemplate two casesthose of omission and those of commission; and I must consider that the 71st section applies to those cases which are not included in the 70th. I think that the defendant must be acquitted.

Verdict-Not guilty.

Adolphus and Follett, for the prosecution.

Busby, for the defendant.

[Attornies-Knight, and Drawbridge].

1831.

REX

v.

MOODY.

GASKELL, Administrator of ISABELLA JACKSON, v. Mar-
SHALL, Knt., and Another.

TRESPASS against the Sheriff of Middlesex, for taking
furniture which had belonged to the intestate at the time
of her decease, and detaining it till a sum of money was
paid. Plea-Not guilty.

It appeared that the intestate died on the 13th of August, 1830; and that, on the 20th of August, the plaintiff, being her nephew, took out letters of administration, and went with his wife to live in the intestate's house, in which this furniture was. It was distinctly proved that the furniture belonged to the intestate at the time of her decease, and that it was taken by the defendants in the month of November, 1830.

Gurney, for the defendants, opened, that the furniture was taken under a writ of fieri facias, which had issued against the plaintiff for a debt of his own; and he contend

Nov. 30th.

An intestate died August: her next of kin took

in the month of

out letters of administration in the same month,

and went and

lived in her

house till the month of No

vember, when the goods of the

intestate in the

house were seized under a facias against the administra

tor for a debt of his own:-Held, that an action lay against the sheriff by the

administrator, in

his representative capacity, for this seizure.

But, semble, that, if the administra

tor had remained in possession for a very long time, it would have been otherwise.

1831.

GASKELL

บ.

MARSHALL.

ed that, if an administrator, instead of disposing of the goods of his intestate, used them as his own, and held himself out to the world as their owner, they might be taken under an execution issued against him; and he relied on the case of Quick v. Staines, Knt. (a), where it was held, that, if the executrix use the goods of her testator as her own, and afterwards marry, and then treat them as the goods of her husband, she shall not be allowed to object to their being taken in execution for her husband's debt.

Lord TENTERDEN, C. J.-I own that it strikes me that the marriage makes all the difference between the two cases. I think that the time that the plaintiff had been in possession is not sufficient to shew that he had made these goods his own. If the plaintiff had been in possession of the goods for a very long time, it might have been otherwise.

Verdict for the plaintiff (b).

Sir J. Scarlett and Platt, for the plaintiff.

Gurney, for the defendants.

[Attornies-Hewitt, and Smith & B.]

(a) 1 B. & P. 293.

(b) In the case of Howard v. Jemmet, 3 Burr. 1369, Lord Mansfield said, "If an executor becomes bankrupt, the commissioners cannot seize the specific effects of his testator, not even in money which specifically can be distinguished and ascertained to belong to such testator; and not to the bankrupt himself." In the case of Farr and others v. Newman, 4 T. R. 621, it was held that the goods of a testator, in the hands of his executor,

cannot be seized in execution in a suit against the executor in his own right. But, in the case of Whale v. Booth, Id. 625, n., Lord Mansfield said, "The general rule, both of law and equity, is clear that an executor may dispose of the assets of the testator; that over them he has absolute power; and that they cannot be followed by the testator's creditors. It is also clear, that, if at the time of alienation the purchaser knows they are assets, this is no evidence of fraud.”

1831.

PARSONS qui tam v. CHAPMAN.

DEBT for penalties under the stat. 10 Geo. 2, c. 28, s. 2. The first six counts of the declaration charged, that the defendant, without authority by virtue of letters patent, and without licence from the Lord Chamberlain, did act a certain part in a certain entertainment of the stage. The counts, from the seventh to the twenty-first, charged, that the defendant did cause to be acted a certain entertainment of the stage; and the counts, from the twenty-second to the thirty-sixth, charged, that he did cause to be acted a certain part in a certain entertainment of the stage (a). Plea-Nil debet.

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salary of and dismissed one of the performers, is sufficient proof that he caused the performances; and if he caused the performances, it is not material whether he did so as the agent of others or not.

(a) The first count of the declaration stated "That the said defendant heretofore, and within the space of six calendar months next before the commencement of this suit, to wit, on the 10th March, 11 Geo. 4, in the parish of Saint Pancras, in the county aforesaid, and within twenty miles of London and Westminster, without authority by virtue of letters patent from his said late Majesty, or from any or either of his said late Majesty's predecessors, and without licence from the Lord Chamberlain of his said late Majesty's household for the time being, or from any other Lord Chamberlain of the King's household for the time being, and without having obtained any such licence or authority so to do, as was and is required by the statute in that case made and provided, and

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without any lawful authority what-
soever so to do, [unlawfully did
act, represent, and perform, for
hire, gain, and reward, a certain
part in a certain entertainment of
the stage, to wit, in a certain en-
tertainment of the stage, called the
Gipsy's Prophecy, contrary to the
form of the statute in such case
made and provided, whereby] and
by force of the statute in such case
made and provided, the said de-
fendant forfeited for his said of-
fence the sum of 50%.; and there-
by and by force of the said sta-
tute, an action hath accrued to
the said plaintiff, (who sues as
aforesaid), to demand and have of
and from the said defendant, as
well for himself the said plaintiff
as for the said poor of the said
parish, the said sum of 50l., so
forfeited as aforesaid, parcel of
the said sum above demanded."

1831.

PARSONS

v.

CHAPMAN.

It was proved by a witness for the plaintiff, that he went to the Tottenham Street Theatre, on eleven of the nights mentioned in the declaration, and paid at the door for his admission; and that, on seven of these occasions, the defendant acted a part in the performances. He stated the performances to have been the opera of Guy Mannering, under the name of the Gypsy's Prophecy ; Morton's comedy, a Cure for the Heart Ache, under the name of Father and Son; and other pieces. The former he stated to consist of dialogue, without singing, and occasionally songs, the dialogue taking up more time than the songs. It was also proved by Mr. Gattie, that he had been an actor at this theatre at the times in question, and that the defendant was the acting manager, and generally paid him his salary; and that he also dismissed. him from the theatre.

J. Williams, for the defendant. It ought to be proved that the defendant has no letters patent.

Lord TENTERDEN, C. J.-I will take a note of the objection (b).

The next five counts merely varied in the names of the pieces performed.

The seventh count was exactly similar, substituting the following for the words within brackets-"unlawfully did cause to be acted, represented, and performed for hire, gain, and reward, a certain entertainment of the stage, to wit, a certain other entertainment of the stage, called Who Rules, or the Sultan and the Slave; contrary to the form of the statute in such case made and provided, and whereby—"

The next fourteen counts merely varied in the names of the pieces performed.

The twenty-second count was similar, substituting the following words for those within brackets in the first count-"unlawfully did cause to be acted, represented, and performed, for gain and reward, a certain part in a certain entertainment of the stage, to wit, in a certain entertainment of the stage, called Who Rules, or the Sultan and the Slave; contrary to the form of the statute in such case made and provided, whereby-"

The remainder of the counts merely varied in the names of the pieces performed.

(b) No motion was made in the Court above on this point.

J. Williams. By the stat. 10 Geo. 2, c. 28, s. 1, persons, acting for hire, gain, or reward, any interlude, tragedy, &c. in any place where they have no legal settlement, are, unless authorized by letters patent, or by the licence of the Lord Chamberlain, to be deemed rogues and vagabonds; and by sect. 2, persons, whether they have a legal settlement or not, are to forfeit 50%., and, in case it is paid, are not to suffer as rogues and vagabonds. By the stat. 5 Geo. 4, c. 83, all the provisions respecting rogues and vagabonds are repealed, and there is in that statute no enactment of any kind respecting players. Now, I submit, that, as the 2nd section of the stat. 10 Geo. 2, c. 28, speaks of the parties as offenders, and of the offence, this section is repealed by the stat. 5 Geo. 4, c. 83.

Lord TENTERDEN, C. J.-I am clearly of opinion, that the 2nd section of the stat. 10 Geo. 2, c. 28, is not repealed by the act you have cited.

J. Williams addressed the Jury, and contended, that there was not sufficient evidence, that the defendant either caused the performances or acted for hire, gain, or reward.

Lord TENTERDEN, C. J.-As to that part of the case, which relates to the causing of the performance, there are two questions:-First, Was the performance for hire, gain, or reward? and, secondly, Was it caused by the defendant? That these performances were exhibited for hire and reward, no one can doubt, as money was paid at the doors for admission. The defendant himself played in seven of the pieces, but there is no evidence that he was paid for so doing; indeed, if he was interested in the theatre, he would hardly be paid for acting. It is proved, that the defendant was the acting manager, and paid Mr. Gattie his salary, and finally dismissed

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