531 OXFORD SPRING CIRCUIT, 1833. BEFORE MR. JUSTICE J. PARKE, AND MR. JUSTICE TAUNTON. BERKSHIRE ASSIZES. BEFORE MR. JUSTICE J. PARKE. 1833. arrear. WILLSON v. DAVENPORT and Another. REPLEVIN. The defendants avowed for 30%. rent in The first avowry stated the rent to be payable yearly; the second stated it to be payable half-yearly; and the third, quarterly. Pleas to the first avowry, non tenuit and riens in arrear; and the like pleas to the second and to the third avowries. On the part of the defendants it was proved, that the plaintiff had taken certain lands of them, at a rent of 30%. a-year, payable half-yearly. Curwood, for the plaintiff, opened that the lands in question, together with other property, had been conveyed to the defendants as trustees, to receive the rents and profits, and to pay them over in certain shares; one of which shares belonged to the plaintiff in right of his wife; and he a defendant avowed for rent payable yearly, for rent payable half yearly, and for rent payable quarterly; and to each of these avowries the plaintiff pleaded non tenuit, and riens in arrear. A holding at a rent payable half yearly was proved, and the jury were directed to find for the plaintiff on the 1st and 5th issues; for the defendant on the 3rd and 4th; and the jury were discharged on the 2nd and 6th issues. 1833. WILLSON v. DAVENPORT. opened, that the defendants had in their hands a greater sum, which was due to the plaintiff as his wife's share of the profits, than the rent in question amounted to; and that, therefore, the plaintiff was entitled to a verdict on those issues which were taken on the riens in arrear. Mr. Justice J. PARKE.-I think that this trust money, due to the plaintiff in his wife's right, cannot be set off against the defendant's claim for rent in arrear, without a special agreement to that effect. The defendant has, therefore, no legal answer to the claim for rent; and the verdict must be for the plaintiff on the first and fifth issues; for the defendant on the third and fourth issues; and the jury must be discharged from giving any verdict on the second and sixth, as those issues become immaterial. (a) By the General Rules of all the Courts, H. T. 2 W. 4, r. 74, "No costs shall be allowed on taxation to a plaintiff, upon any counts or issues upon which he has not succeeded; and the costs of all issues found for the defendant shall be deducted from the plaintiff's costs." In Cox v. Thomason, a MS. case cited in Mr. Jervis's edit. of the new rules of the Courts (p. 84), and which came before the Court of Exchequer, T. T. 1832, it was decided that a distinct issue is raised upon each count of a declaration by the general issue pleaded generally to the whole declaration; and that this rule applies to every taxation occurring after the first day of Easter Term. The declaration, in case, contained eighteen counts, nine for a malicous prosecution, and nine for slander; the Jury found for the plaintiff on Verdict accordingly (a). three counts, with 40s. damages; and for the defendant on the remaining fifteen, and the postea was entered accordingly. The Master in taxation disallowed the plaintiff's costs on the fifteen counts on which the defendant had a verdict, but did not deduct the defendant's costs on those counts from the plaintiff's costs. On motion to review the taxation, Bayley, B., expressed his opinion, that each count was a separate issue within the meaning of the rule, so that the costs of the defendant on the fifteen counts ought to have been deducted from the plaintiff's costs; and, on the 29th May, he said, that all the Courts agreed that the costs of the issues found for the defendant should be deducted from the plaintiff's costs; and that the true construction of the rule was, that the general issue raised Curwood and Carrington, for the plaintiff. Talfourd, Serjt., and Justice, for the defendants. [Attornies-Bartlett, and Davenport.] a distinct issue on each count. He added, that the King's Bench and Exchequer agreed that the rule applied to every taxation occurring after the first day of Easter Term, though the cause might have been tried before that day; and the 1833. WILLSON. v. DAVENPORT. OXFORD ASSIZES. BEFORE MR. JUSTICE J. PARKE. REX v. PRATLEY. Feb. 27th. LARCENY. The indictment in the first count charged A. had conthe prisoner with stealing a truss of hay, the property of Thomas Cheatle; and the second count stated it to be the property of Thomas Baylis. It appeared that Cheatle had sent three trusses of hay, consigned to Baylis, by the prisoner's cart; and that the prisoner had taken away one of the trusses, which was found in his possession, but not broken up. signed three trusses of hay to B., and had sent them by the prisoner's cart. The pri soner took away which was found one of the trusses in his stable, but not broken up: -Held, no larceny, as the prisoner did not truss. Mr. Justice J. PARKE.-This is no larceny, as the pri- break up the soner did not break up the truss. The prisoner must be acquitted. Phillimore, for the prosecution. Verdict-Not guilty. [Attorney-J. Scarlett Price.] In 3 Inst. 107, Lord Coke says, "If a bale or pack of merchan dize be delivered to one to carry March 1st. The prisoner the prosecutor, had worked for sometimes as a regular labourer, and sometimes as a rounds man; but, at the time in question not being at all in the prosecutor's service, he prosecutor to get a check cashed at a banker's; for doing which he was to be paid REX v. FREEMAN. EMBEZZLEMENT. The prisoner was charged, under the stat. 7 & 8 Geo. 4, c. 29, s. 47, with having embezzled a sum of 17. 19s. 8d., the property of James Freeman. The indictment alleged, that he was the servant of James Freeman. It appeared that the prosecutor had given the prisoner a check, which he was to get cashed at the Bicester bank, was sent by the and bring back the money to the prosecutor. The prisoner obtained the money at the bank, and applied it to his own use. It further appeared that the prisoner had sometimes been employed by the prosecutor as a regular labourer, and sometimes as a rounds-man, for a day at a time; and that he had several times before been sent to the bank for money. It however appeared, that, on the day in question, the prisoner was not working for the prosecutor, and that he was to be paid sixpence for fetching this from the Bicester bank. money sixpence. He got the cash, and made off: -Held, no em bezzlement, as the prisoner was not a servant of the prosecutor within the meaning of the stat. 7 & 8 Geo. 4, c. 29, s. 47. Mr. Justice J. PARKE, (having conferred with Mr. Justice TAUNTON). My learned brother agrees with me in opinion that the prisoner was not a servant of the prosecutor within the meaning of the act of Parliament, and that this is therefore no embezzlement. Abbot, for the prosecution. Verdict-Not guilty. [Attorney-White.] In the case of Rex v. Spencer, ner had applied to a person named Boynton, a carrier, to give him magistrate had told a prisoner that he would do all that he ARSON. The indictment in the first count charged The committing the prisoner Cooper with having set fire to a stack of straw; in the second, with having set fire to a stable; in the third, two barns; and in the fourth, two outhouses: and the prisoner Wicks was charged in each count as an accessory before the fact. It appeared that the straw stack had been set on fire, and that the fire had communicated to a stable, an oxhouse, and two barns which were adjacent, and which were all destroyed. It was proposed, on the part of the prosecution, to give in evidence a confession of the prisoner Cooper. It appeared that the committing magistrate, Mr. Simeon, told him, that, if he would make a disclosure, he (Mr. Simeon) would do all that he could for him. had Mr. Justice J. PARKE.-We must not hear what he said after this. could for him if disclosure: he would make a after this, the prisoner made a statement to the turnkey of the prison, who held out no in ducement to the prisoner to confess :-Held, that what the prisoner said to the turnkey ceived in evidence, more could not be re especially as the turnkey had not given the prisoner any caution. If a person set fire to a stack, the fire from which is likely to, and The prisoner Cooper, after he had been committed, which does, communicate the person is indictable for burning the barn. It is not essential that there should have been any direct communication between an accessory before the fact and the principal felon. It is enough if the accessory direct an intermediate agent to procure another to commit the felony; and it will be sufficient, even if the accessory does not name the person to be procured, but merely direct the agent to employ some person. |