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ELECTING, A. was indicted for shooting at B., a gamekeeper; there being another indictment against A. for night poaching:-Held, that although both indictments related to the same transaction, yet these were offences quite distinct from each other, and that the prosecutor ought not to be put to his election to go upon one indictment and abandon the other. Rex v. Handley,

565 EMBEZZLEMENT. 1. A. gave his clerk 51., out of which he was to pay for an advertisement; he paid il., but told A. he had paid 21. Os. 6d., and accounted with A. accordingly:—Held, no embezzlement; and that, if in such a case the indictment, besides containing a count for embezzlement, contained a count for a larceny charged to have been committed “in manner and form aforesaid,” the prisoner could not be convicted on that count. Rex v. Murray,

145 2. Where a party is charged with embezzlement, the Judge, before the indictment is found, will order the prosecutor to furnish the prisoner with a particular of the charges, if the prisoner make an affidavit that he does not know what the charges are, and that he has applied to the prosecutor for a particular, and it has been refused. Rex v. Bootyman, 300

3. The prisoner had worked for the prosecutor sometimes as gular labourer and sometimes as a roundsman, but, at the time in question, he, not being at all in the prosecutor's service, was sent by the prosecutor to get a check cashed at a banker's, for doing which he was to be paid sixpence. He got the cash and made off:-Held, no embezzlement, as the prisoner was not a servant of the prosecutor within the meaning of the stat. 7 & 8 Geo. 4, c. 29, s. 47. Rex v. Freeman, 534

EVIDENCE. See ACCOMPLICE. — ADULTERY, --A

LIEN, 2.-ATTORNEY, 6,7.-BANKRUPT, 3, 4, 5.--Bill or Exchange, 9.-Bond.- Confession. — DETINUE, 2.-FALSE REPRESENTATION, 3.-FORGERY, 2, 3, 6.- INSOLVENT, 4,5.- LEGITIMACY, 2.-LIBEL, 4,5. -LIEN, 1.-Machine BREAKING. -MANSLAUGHTER, 4. Palace Court. — Paving. -- PAYMENT OF MONEY INTO Court.-PERJURY, 2. -Seisin.

1. Where an indictment is founded on a written instrument, and where the instrument itself is the crime, it is receivable in evidence, although not stamped; but where the indictment is for an offence distinct from the instrument, and the instrument be only introduced collaterally, it cannot be received unless it be properly stamped. Rex v. Smyth,

201 2. Persons who cohabit as man and wife, after a marriage de facto, supposed by both to be a good marriage in law, may, after the marriage is found to be a nullity, give in evidence, in a Court of justice, statements made by each other during the cohabitation. Wells v. Fletcher, 12

3. If a plea justifying a libel state that an information was laid before a magistrate, an examined copy of the magistrate's conviction, reciting the information, is sufficient proof of the information. Scarth v. Gardener, 38

4. In slander, the words imputed the prescribing of medicines in improper doses, and the defendant justified:—Held, that medical books, which were stated by the medical witnesses to be works of medical authority, could not be put in, to shew that such doses were sanctioned; but, that the medical witnesses might be asked their judgment, and the grounds of it, which might in some degree be founded on these books as a part of their general knowledge. Collier v. Simpson,

73

a re

1

such party.

5. A. brought an action against which would criminate him, but he is the sheriff for a false return of nulla not bound to answer any question, the bona to a fi. fa. issued against the answer to which would tend to crimi. goods of B.

B. had filed a bill of nate him. A witness is, therefore, not discovery against A., on which there bound to answer whether he wrote an had been a decree or order, that A. advertisement referring to libellous should bring into the Court of. Chan- letters which the prosecutor had recery all letters written by B. or any ceived; and, though he is bound to other person to him respecting the answer whether he knows in whose original debt. A., under this decree handwriting it is, he is not bound to or order, brought in various letters: name the person, as it may be himself. -Held, that none of them could be Rex v. Slaney,

213 read in evidence on the part of the

11. A clerk who has seen numerdefendant in the present action, with- ous letters addressed by a party to his out first putting in the bill and an- employer, and has acted on those letswer. Hewitt v. Piggott,

75

ters, may prove the handwriting of 6. The statements in a special plea,

Ibid. on which judgment has been given for 12. An information for a libel stated the plaintiff on demurrer, cannot be that the prosecutor had received cerused at the trial of the cause as an ad- tain anonymous letters, and that of mission on the record by the defen- and concerning those letters the dedant; but the cause must be tried on fendant published a libellous placard. the general issue, without any

refer- The defendant was proved to have ence to the special plea at all. Firmin caused the placard to be published. v. Crucifix,

98 In the placard it was asked if the pro7. If, in a case of felony, a witness secutor had not received certain warnfor the prosecution is too ill to attend ing. The prosecutor stated that he the assizes, this is a good ground for understood that to refer to the letters, postponing the trial, but will not au- and that he should not have underthorize the reading the deposition of stood the meaning of the placard if the witness taken before the magis- he had not received the letters:trate. Rex v. Sarage,

143 Held, that the letters might be read 8. A conversation between a client, in evidence as explanatory of the plawho afterwards beconies bankrupt, card, without proof of the handwriting and his attorney's clerk, on the sub- of them.

huid. ject of his affairs, is a privileged com- 13. The statements in a special munication, and cannot be given in plea, which has been holden bad on evidence in an action by his assignees, demurrer, are not evidence for the for the purpose of shewing his mo- plaintiff on the general issue, although tives. Bowman v. Norton, 177 the jury are to assess damages as well

9. A witness formed his opinion of as to try the case on the general issue. the hand-writing of a party from have Montgomery v. Richardson, 247 ing observed it signed to an affidavit 14. Any evidence that is a conused in the cause (on a motion to firmation of the original case cannot postpone) by the counsel for the party be given as evidence in reply; and the against whom it was proposed to be only evidence that can be given in reproved :-Held, sufficient. Smith v. ply, is that which goes to cut down Sainsbury,

196 the defence without being any con10. A witness is not only not bound firmation of the original case. Rix v. to answer a question, the answer to Hilditch,

299 SS

VOL. V.

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15. Where the examination on in. general character, and not from bav. terrogatories of an absent witness is ing heard him give particular evidence read on the part of the plaintiff, on a particular trial. Rexv. Hemp, 468 the whole, including the answers to 21. The minute book of a Court the cross-interrogatories, must be of Quarter Sessions is not evidence of read as part of his case. Temperley its proceedings. The record should v. Scott,

341 be made up on parchment, and an ex16. A witness cannot be called to amined copy produced by a witness contradict another who denies having who examined it. Rex v. Thring, 507 made a particular statement, if such 22. On the trial of an indictment statement was not of a fact, but only for arson, a witness for the prosecuof a matter of opinion; as such state- tion was himself in custody on a charge ment of opinion does not come within of felony. The counsel for the prithe rule which confines contradictions soner wished to ask him, “ Have you to matters directly connected with the not said that you committed the ofissue in the cause. Elton v. Larkins, fence for which you are now in custo

S85 dy?"-Held, that this question ought 17. Written admissions made for not to be put. Rex v. Pegler, 521 the purpose of a former trial may be 23. What a party says is evidence used on a new trial. If the party against himself as an admission, notwho made them wishes to withdraw withstanding it may relate to the conthem, he should take out a summons tents of a written paper. Earle v. before a Judge, in order to obtain his

Picken,

542 permission.

Ibid.

24. The counsel for the prosecu18. If the clerk of an attorney has tion opened that he should call A. and the management of a cause, what he B. as witnesses, the former being a says is receivable in evidence, the King's evidence. Both before and same as if it had been said by the at- after those persons were called the torney himself. Standage v. Creigh- prisoner's counsel were allowed to ask ton,

406 the other witnesses, whether A. and B. 19. A debtor, being in prison, were not persons of very bad characwrote to the town agents of his cre- ter. Rex v. Nichols,

600 ditors' attornies, requesting them to send a confidential clerk to him, with

EXPENSES. whom he might communicate on the 1. On the trial of an indictment for subject of his creditors'claim:--Held, manslaughter, the surgeon will only in an action by the creditors to reco- be allowed for his attendance on the ver the claiin, that what the debtor the trial, and not for his fee for opensaid to the person who went to him in ing the body by order of the coronen. consequence of his letter, was receiv

Rer v. Taylor,

301 able in evidence, even though the sub- 2. The Judge, on a trial for murject-matter of the communication was der, has no power to allow the exan offer of 10s. in the pound. Hill v. penses of the witnesses for their atElliott,

436 tendance at the coroner's inquest. Rex 20. A witness for the defence can- v. Rees,

302 not be asked whether he has heard a 3. A prosecutor and his witnesses witness for the prosecution commit were bound by recognizances to properjury on the trial of a cause; and, in secute and give evidence at the assizes. stating whether he would believe that They attended there, and preferred an witness on his oath, he must do so indictment, which was found. The from his knowledge of the witness's prisoner had been by mistake dis

charged by proclamation at an ad- contained in the advertisement, as the journed sessions which preceded the vessel itself was not mentioned in the assizes, and had absconded. The inventory, but only the stores. Ibid. Judge allowed the expenses. But sem- 5. The questions for the jury in such ble, that, if the prosecutor and wit. a case are, whether the vessel was in nesses had merely appeared at the fact copper fastened; and, if it was not, assizes and had not preferred any in- did the seller know that it was not? dictment, the Judge would have had and, if he did, did he use any means no power to allow any expenses. Rex to conceal the fact from the buyer? v. Robey, 552

Ibid.

FORCIBLE ENTRY.
FALSE PRETENCE.

1. An indictment for a forcible enSee ForgERY, 7.

try cannot be supported by evidence FALSE REPRESENTATION.

of a mere trespass; but there must be

proof of such force, or at least such See WARRANTY.

shew of force, as is calculated to pre1. A tradesman can only recover

vent any resistance. Rex v. Smyth, against a person making a false repre

201 sentation of the means of one who re- 2. If a wife, separated from her ferred to him, such damage as is justly

husband, take a house of which the and immediately referable to the false

husband, with the landlord's consent, representation. Therefore, if the obtains possession :-Semble, that if tradesman gives an indiscreet and ill

the wife come with others and make judging credit, he cannot make the forcible entry into this house, she referee answerable for any loss occa

may be convicted on an indictment for sioned by it. Corbett v. Brown, 363 a forcible entry, stating it to be the 2. A party bought a ship under a

house of the husband.

Ibid. representation that she was copper

3. Where a constable entered a fastened. He ascertained in the

house with a warrant in his hand, and course of a few days that she was not,

searched it, and for such entering and but did not make any complaint to

searching was indicted for a forcible the seller till several months after

entry:-Held, that his counsel might wards, when she had been on a voy

ask the witnesses for the prosecution

what the constable said at the time as age and returned :-Held, that this delay would not prevent his recover

to whom he was searching for. Ibid. ing, provided the action was in other respects maintainable. Freeman v.

FORGERY. Baker,

475 1. A forged paper was in the fol3. Held, also, that “Lloyd's Regis- lowing form—" Per bearer two 11-4 ter of Shipping” was not admissible superfine counterpanes. T. Davis, in evidence to shew that the vessel was E Twell.” It was not addressed to considered as copper fastened. Ibid. any person :- Held, by the 15 Judges,

4. The contract stated, that the that it was neither an order nor a revessel was to be delivered with all her

quest

within the stat. 1 Will. 4, c. 66, stores according to the inventory. s. 10, (the forgery consolidation act). The inventory was at the end of the Rex v. Cullen,

116 advertisement for the sale :-Held, 2. On an indictment for forging a that this did not import into the con- check, purporting to be drawn by G. tract the representation as to the vessel A. upon Messrs. J. L. & Co., proof

SS 2

that no person named G. A. keeps an account with or has any right to draw on Messrs. J. L. & Co., is prima facie evidence that G. A. is a fictitious person. Rex v. Backler,

118 3. Where a bill purported to be accepted by “Samuel Knight, Marketplace, Birmingham"-It was held, on an indictment for the forgery of the acceptance, that the result of inquiries made at Birminghain by the prosecutor, who was not acquainted with the place, was evidence for the Jury, though neither the best nor the usual evidence given to prove the non-existence of a party whose name is used. Rex v. King,

123 4. The practice of issuing county court processes in blank for the attornies to fill up after they have been issued by the county clerk, is highly irregular; and semble, that the filling up of a county court summons, or altering a distringas into a summons after it has been so issued in blank, is a forgery at common law. Rex v. Collier,

160 5. 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 following," is good. Rex v. Crowther,

316 6. A forged check on the W. bank was presented for payment at the S. bank, where the supposed drawer never kept cash:-Held, that this was sufficient evidence of an intent to defraud the partners of the S. bank, although there was no probability of their paying the check, even if it had been genuine.

GAME.

See Poaching. 1. To bring a party within the stat. 52 Geo. 3, c. 93, for not producing his game certificate, it is not necessary that the demand of it should be made on the land on which he was sporting; but the demand must be made so immediately after the party has left the land, as to form a part of the same transaction. Scarth v. Gardener, 38

2. It is not necessary that the person making the demand should produce any certificate; and if the other party refuses to produce his, he takes the risk of whether the person demanding is one having a right to make such demand.

Ibid. 3. If a person refuses to produce his game certificate, or to tell his name or residence, the person demanding need not go on to ask in what place, if any, he is assessed to the game duty.

Ibid. GOODS LET ON HIRE.

See Horse.

GOODS NOT CONFORMABLE

TO CONTRACT. Where a party contracted to supply and erect a warm air apparatus for a certain sum:-Held, in an action for the price, (the defence to which

was, that the apparatus did not answer,) that, if the jury thought it was substantial in the main, though not quite so complete as it might be under the contract, and could be made good at a reasonable rate, the proper course would be to find a verdict for the plaintiff, deducting such sum as would enable the defendant to do what was requisite. Cutler v. Close,

Ibid. 7. A person who obtained goods on delivering a forged letter—“ Please to let the bearer W. T. have for J. R. 4 yards of linen,” signed J. R., is not indictable for obtaining goods by false pretence, as this is uttering a forged request for the delivery of goods which is a felony under sect. 10, of the stat. 1 Will. 4, c. 66. Rex v. Evans, 553

337 GOODS SOLD. Sce CharitaBLE INSTITUTION. A. sold to B. a butt of wine, which was not delivered. B. compounded with his creditors, and the amount of

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