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(Civil Side.)

BEFORE MR. JUSTICE BOSANQUET.

1832.

SHELLEY, Administratrix of SHELLEY, v. FORD. THE first count of the declaration stated, that the intestate was the owner of a horse, which had been by him let to hire to one William Lewis; and that the defendant, to the injury of the intestate's reversionary interest in the horse, took it into his possession, and sold it. There was a similar count, stating the whole matter, except the letting of the horse, to have occurred since the death of the deceased; and there were also counts in trover. Plea-Not guilty.

It appeared that, in the month of September, 1830, the intestate had let the horse on hire to Captain Lewis, for one month; and it was proved, by the admission of the defendant himself, that, in the month of November, 1830, he had bought the horse of Captain Lewis for 10%. which was then the full value of it; and that, after keeping it at livery for some time, he had sold it.

Justice, for the defendant.-I submit that this action cannot be maintained. The defendant acted bona fide in the buying of the horse; and he has at least a lien upon it for the amount of 107., the sum which he has paid for it; and, in any view of the case, that sum ought to have been tendered before any action was brought.

Mr. Justice BOSANQUET (in summing up).—In this case the property in this horse was in the intestate, and Captain Lewis had only a limited interest in it; he, therefore,

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1832.

SHELLEY บ.

FORD.

when he sold it, could give the defendant no better title than he had got himself.

Verdict for the plaintiff-Damages 157.

Curwood, Carrington, and Jeffreys Williams, for the plaintiff.

Justice, for the defendant.

[Attornies-C. Carus Wilson, and G. S. Ford.]

In general, no sale by a person who has no right to sell, is good against the rightful owner, except it be made in market overt; and it is laid down (Bac. Abr. tit. Fair, E) that every sale made in a fair or market overt, transfers a complete property in the thing sold to the vendee, however illegal the title of the vendor. In London, every day is market-day, except Sunday; so that a sale on any of these days is as good as it would be on the fair or market-day in the country; and in London every shop, except a pawnbroker's, is a market overt for such things as the owner, professes to trade in; but in the country, the market overt is confined to the particular place or spot set apart by custom for the sale of particular goods.

However, the property in a horse is not changed as against the rightful owner, unless the provisions of the stat. 2 & 3 P. & M. c. 7, and 31 Eliz. c. 12, (which will be found in Burn's Justice, tit. Horses), are complied with.

See also the case of Gimson v. Woodfull, ante, Vol. 2, p. 41.

As to factors and agents dealing with goods intrusted to them, see the stat. 6 Geo. 4, c. 94: and the case of Dyer v. Pearson, 4 D. & R. 653, as to the effect of the true owners allowing another to hold himself out as the owner of goods. As to the, restitution of stolen goods on the conviction of the offender, see the stat. 7 & 8 Geo. 4, c. 29, s. 57, which is set out Carr. Sup. 334.

OXFORD ASSIZES.

BEFORE MR. BARON GURNEY.

1832.

DOE on the demise of CRAKE v. BROWN.

EJECTMENT. When this cause was called on in its order, it appeared that no brief had been delivered for the lessor of the plaintiff, and the attorney was not in Court.

July 19th.

A counsel, to whom a retainer

in a cause has been given, no brief having been delivered, cannot with

Talfourd stated that he had a retainer for the lessor of draw the record. the plaintiff, and wished to withdraw the record.

Mr. Baron GURNEY.-A retainer without a brief does not authorize you to withdraw the record. Mr. Jervis, you are for the defendant; do you wish the Jury to be sworn, and to nonsuit the plaintiff?

Mr. Jervis.-Yes, my Lord.

The Jury were sworn, and the plaintiff

Talfourd, for the lessor of the plaintiff.
Jervis and Carrington, for the defendant.

[Attornies-Mathews, and Eyre.]

Nonsuited.

1832.

WORCESTER ASSIZES.

BEFORE MR. JUSTICE BOSANQUET.

July 23rd.

An indictment,

which charges

a forged check

to be "a warrant and order

for the payment of money, which said warrant and order is in the words and figures follow

ing," is good.

A forged check

REX v. CROWther.

FORGERY. The indictment charged the prisoner with having forged "a certain warrant and order for the payment of money, which said warrant and order is in the words and figures following-that is to say:

"WORCESTER OLD BANK. "Hanbury Hall, Nov. 28, 1828.

"Messrs. Berwick, Wall, Isaac, and Lechmere, pay to

on the W. Bank Mr. John Perkins, or bearer, twenty-five pounds ten shil

was presented

for payment at the S. Bank, where the supposed drawer never kept cash -Held, that this was sufficient evidence of an

lings.

£25:10:0.

John Phillips."

with intent then and there to defraud Francis Rufford

and others. There were other counts, which charged, intent to defraud that the prisoner did "utter," and also "did offer, disthe S. Bank, al- pose of, and put off," the forged instrument, knowing it to though there was be forged.

the partners of

no probability
of their paying
the check, even

if it had been
genuine.

It appeared that this check, which purported to be a check on the Worcester Old Bank, was presented by the prisoner for payment at Messrs. Rufford's bank, at Stourbridge; and it was proved that they would not pay the amount, and that no person named John Phillips kept cash with them.

Godson and F. V. Lee objected that this case must fail upon two grounds:-First, because this indictment charged, in every count, that the prisoner either forged, uttered, or offered a "warrant and order;" which imported that he had committed an offence with respect to two instruments; and secondly, because it could not have been done

to defraud Messrs. Rufford, as they had no customer of the name of John Phillips; and there was, therefore, not the most remote chance of their paying the money.

Mr. Justice BOSANQUET.-I am of opinion that this indictment is sufficient. In each of the counts there is only one instrument set out, and it is called-" A warrant and order for the payment of money, in the words and figures following." I think it is both a warrant and an ordera warrant authorizing the banker to pay, and an order upon him to do so. With respect to the other point, I think that the prisoner going to Messrs. Rufford's, and presenting this paper for payment, is quite sufficient evidence of an intent to defraud them.

Verdict-Guilty.

1832.

REX

บ.

CROWTHER.

Shutt, for the prosecution.

Godson and F. V. Lee, for the prisoner.

[Attornies-Robesons, and Pumfrey.]

By the statute 11 Geo. 4 & 1 Will. 4, c. 66, s. 3, it is enacted, "that if any person shall forge or alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or altered, any warrant or order for the payment of money, with intent to defraud any person whatsoever, every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon." By the statute 2 & 3 Will. 4, c. 123, the capital punishment is repealed,

except as to wills and testamen-
tary papers, and certain powers of
attorney; and by s. 3 of that stat.
it is enacted-"That in all infor-
mations or indictments for forg-
ing, or in any manner uttering
any instrument or writing, it shall
not be necessary to set forth any
copy or fac-simile thereof, but it
shall be sufficient to describe the
same in such manner as would
sustain an indictment for stealing
the same; any law or custom to
the contrary notwithstanding."

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