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C. Phillips wished to ask the witness, whether, at the time of this searching, Goddard said for whom he searched?

Archbold, for the prosecution.-What Goddard said is not evidence in his own favour.

Lord TENTERDEN, C. J.-We may hear what he said at the time, as to who he was searching for (a).

The witness said, that he stated that he was searching for Mr. Smyth.

The agreement under which Mrs. Smyth had taken the house was offered in evidence. It was not stamped.

Lord TENTERDEN, C. J.-Where the indictment is founded on the instrument, the want of a stamp does not signify. That is, where the instrument itself is the crime; but here the indictment is for a forcible entry, and this instrument is introduced collaterally. I therefore cannot receive it without a stamp.

The agreement was not read.

Lord TENTERDEN, C. J., (in summing up).-An indictment for a forcible entry cannot be supported by evidence of a mere trespass, but there must be proof of such force, or at least such a shew of force, as is calculated to prevent any resistance. In point of law, although Mrs. Smyth had taken the house separately from her husband, it must be taken to be his house; but still she would have a right to enter the house of her husband. However, if you should think that she came with violence and the strong hand, or at least such shew of force as to prevent any resistance, I think, as at present advised, that she would be guilty of this offence, notwithstanding her being the wife of the

(a) See the case of Rex v. Crutchley, ante, p. 133.

party whose house this is alleged to be. Whether the two officers went for the purpose of increasing the shew of force, is for you to consider; but if you think that they went either to prevent a breach of the peace, or to take Mr. Smyth on a warrant, they must be acquitted. If you acquit them, there only remain Mrs. Smyth and one man. There is no doubt, that a great number of persons being present does increase the shew of force; but, if you think that Mrs. Smith and the third man were all that were concerned in getting possession of this house, you will say whether their presence, and the breaking of a window, is such a shew of force as will satisfy the present charge (a).

The Jury found all the defendants-Not Guilty.

Archbold, for the prosecution.

Platt and C. Phillips, for the defendants Goddard and Schofield.

Cockburn, for the defendant Mrs. Smyth.

(a) See the case of Milner v. Maclean, ante, Vol. 2, p. 17.






Feb. 3rd.


have no authority to detain a

person known to them till some other person makes a charge against him. Before they detain a known person, they should have a


REX v. BIRNIE, Knt., HALLS, Esq., and Others. INDICTMENT for the false imprisonment of, and for assaulting William Henry Carmichael Smyth.

Mr. Smyth, being called as a witness, said—" On the 15th of December, 1830, I was at the Bow Street Police Office; I went to complain against Goddard the officer; I went in consequence of a rule of the Court of King's Bench; Sir Richard Birnie and Mr. Halls were sitting; Sir charge actually Richard Birnie refused to hear the case, and referred me to Mr. Halls. I refused to submit it to Mr. Halls, as the rule was addressed to Sir Richard Birnie. Mr. Halls dismissed the complaint; I bowed, and was about to retire, when Sir Richard Birnie exclaimed, Stop him, shut the door, don't let that man escape. Where is the person that has got the information to lay against Mr. Smyth, for tampering with the due course of justice?' I insisted on being let go. A person, named Wotton, was keeping the door. I was repeatedly repulsed by him. He said, 'Why do you attempt to escape, when you know you cannot?' I said, because they would say I acquiesced, and was not a prisoner. There was a long consultation between the magistrates and ten or a dozen officers. Sir Richard said 'This man is a pensioner, we must see and get his pension stopped, a pretty man to be a pensioner, tampering with the due course of justice.' I was kept a quarter of an hour or twenty minutes. Sir Richard Birnie went out at the back door. I was sitting down at the end of the office. Mr. Halls called out Mr. Smyth, repeatedly. I said, I have nothing to say to Mr. Halls; I demand my liberty. The defendant, Birchell, then said, 'If you will not come by fair means, I must take you by force.' He dragged me by the collar across the office, and Mr. Halls said, Mr. Smyth, I understood there was an information against you for obstructing the due course of justice, and, as you were present, I considered it my duty to detain you. Now that

I have read the charge, I don't think I should be justified in detaining you any longer; you are discharged.' I said, you may depend on it, Mr. Halls, if there is any law in the country, to which I can have recourse for redress for this outrage, I will have recourse to it. Mr. Halls said I 'I might do as I thought proper.""

Adolphus, for the defendants, opened, that the magistrates were informed that Goddard, the officer, had a complaint to make against Mr. Smyth, for having tampered with the due course of justice; and that, Goddard not then being at the office, they detained Mr. Smyth till Goddard was sent for. And he contended, that, if a magistrate has a person before him, charged with either felony or misdemeanor, he may either go into the case immediately, or detain the party to await his leisure. And he cited the case of Broughton v. Mulshoe (a).

Lord TENTERDEN, C. J.-I am of opinion, that the Justices could not detain a person known to them till some other person should make a charge. I think, before they detain a known person, they should have a charge made; therefore, unless you can shew that Goddard's charge was made by him, and received by the magistrates before Mr. Smyth was stopped, you cannot vary the case; and it is plain that you cannot, as they evidently detain Mr. Smyth till Goddard makes his charge, and then it is found to be not sufficient. However, I will hear any evidence you have to offer.

(a) Moore, 408. This was an action for false imprisonment, in which the defendant justified, "for that the plaintiff being in the presence of a Justice of Peace, and the justice, not having opportunity to examine him, commanded the defendant, being a constable, to take him into his custody

till the next day, which he did."
This was held a good justification,
without alleging the cause that the
justice had for imprisoning the
plaintiff, and without shewing a
warrant in writing, because it oc-
curred in the presence of the jus-








Adolphus declined calling witnesses.

Lord TENTERDEN, C. J., (in summing up).—The only question of fact is, whether Mr. Smyth was detained against his will; for I think that a magistrate is not justified in detaining a known person till a charge is made. The magistrate should have the charge actually made before he detains the party.

Archbold, for the prosecution.

Adolphus, for the defendants.


[Attornies-4. H. Smyth, and Roche & P.]

Feb. 3rd.

Where the

REX V. POPE and Others.

INDICTMENT for a conspiracy to defraud the Sheriff

bankruptcy of a of Middlesex. In the first count of the indictment, the party is stated in

an allegation, in bankruptcy of the defendant Pope was stated in a prefa

an indictment

for a conspiracy, tory allegation.

the assignment cannot be received as evidence in support of such allegation, unless it be proved by the subscribing wit


To prove this allegation, the proceedings under the bankruptcy were put in.

Lord TENTERDEN, C. J.-You cannot put in the assignment, without calling the subscribing witness to prove the execution of it.

This was done.


Denman, A. G., and Bodkin, for the prosecution.

Curwood, for the defendant Pope.

[Attornies- Willoughby, and Pope.]

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