COURT OF QUEEN'S BENCH.

February 10, 1849.

(Before LORD DENMAN, C. J., PATTESON, J., COLERIDGE, J., and ERLE, J.)

REG. v. BUCHANAN. (a)

Attorney-Indictment for practising contrary to the 6 & 7 Vict. c. 73— Prosecution by a Law Society-Costs-Statute 5 & 6 Will. & M. c. 11, s. 3-Party grieved.

A society composed exclusively of attorneys practising in the county of K., prosecuted the clerk of a board of guardians, who, without being qualified as an attorney, conducted an appeal to the Quarter Sessions of the county of K., on behalf and at the request of the guardians. Held, (Coleridge, J. dissentiente,) that the society was a "party grieved" within the 5 & 6 Will. & M. c. 11, s. 13.

A

RULE nisi had been obtained for setting aside the side-bar rule for taxing the prosecutors their costs in this indictment, which had been preferred by the Kent Law Society, composed exclusively of attorneys practising in the county of Kent, and on which the defendant, at whose instance it had been removed into this court from the sessions, had been convicted of having practised as an attorney at the Canterbury Sessions, without being duly qualified. The rule had been obtained on the ground that the prosecutors were not parties injured or grieved within the meaning of the act.

The affidavits in support of the rule, showed that the defendant was clerk to the board of guardians; that he had only practised on the particular occasion which gave rise to the prosecution, and then at the special request of the guardians to save expense; and that at the time he was totally ignorant of the recent statute 6 & 7 Vict. c. 73, s. 2, which made such a proceeding on his part penal. The affidavits in opposition to the rule set forth the duties, responsibilities, exclusive privileges, and fixed charges of which attorneys are the subject.

Against the rule cause was shown May 31, 1847, by

Sir F. Thesiger, and Hurlstone. It is admitted that these prosecutors are not parties injured, for they have not sustained any specific damage. But they are parties grieved. Their case is like that of commoners, whose right has been usurped

(a) Reported by A. BITTLESTON, Esq., Barrister-at-Law.

REG.

V.

BUCHANAN.

an attorney

by a stranger, or of the dippers of Tunbridge Wells, who were held capable of maintaining an action against a stranger who intruded on them, and so interfered with the contingent gratuities Practising as of visitors at the wells. It is quite plain that they are persons whose grievance is, from the act of the defendant, distinct from the grievance of the public in general. They cited R. v. Cooke (1 Man. & R. 526); R. v. Taunton, St. Mary's (3 M. & S. 465); R. v. Pemberton (2 Burr. 1035); R. v. Dewsnap (16 East, 194); R. v. Incledon (1 M. & S. 268); R. v. Dobson (15 L. J. 97).

Costs.

Horn and Pashley, contrà.-No person is a party grieved within the meaning of this statute, unless the grievance of which he complains is one for which he could have brought an action; and it is admitted that in this case no action lies. If there be either the specific private damage that would support an action for nuisance, or its equivalent in any other form of injury, the action may be supported; not otherwise. If the injury be one affecting a large class, as in this case, for the attorneys of a county distant from Canterbury, are as much aggrieved by the invasion of this pos sibility as those of Kent, there is no grievance within this statute. R. v. Caldecott (1 Dowl. N. S. 556); R. v. Edwards (5 B. & Ad. 407, n.; R. v. Dewhurst (5 B. & Ad. 405); R. v. Middlesex (3 B. & Ad. 938); R. v. Thompkins (2 B. & Ad. 287); R. v. Sharpness (? T. R. 47); Paine v. Partrick (Carth. 194); Chichester v. Lethbridge (Willes, 74, n); Williams' case (5 Rep. 72); R. v. Lord Waldegrave (2 Q. B. 341.)

Feb. 10.

Cur. adv. vult.

The judgment of the court was now delivered by

LORD DENMAN, C. J.-This case was heard before my brothers Patteson, Coleridge, and Erle, and myself, and we have been called upon for our judgment. The majority of us think that the prosecutors in this case are parties grieved, within the meaning of the 5 & 6 W. & M. c. 11, s. 3, and ought to have their costs. My brother Coleridge dissents from this opinion, and considers the interest of the prosecutors to be too remote and uncertain to admit of the application of that statute.

Rule discharged.

WESTERN CIRCUIT.

SOMERSET SPRING ASSIZES, 1849.

Taunton.

(Before LORD DENMAN, C. J.)

REG. v. MARK CLEEVES AND WILLIAM CHIVERS. (a)

Practice-Indictment for a felony, including an assault-Pleading guilty to the assault only.

Semble, that upon an indictment for a felony, which felony includes an assault, it is not competent to the prisoner to plead guilty to an assault and not guilty to the felony.

The two prisoners were indicted for a robbery, with violence, and having pleaded not guilty to the entire charge, afterwards, with the consent of the prosecutor's counsel, who stated that he was willing to offer no evidence of the felony, wished to withdraw their plea and plead guilty to a common assault.

Held, that the proper course, under such circumstances, would be for the prisoners to plead not guilty generally, and for the prosecutor to offer evidence only of the assault, and for the jury to return a verdict accordingly of guilty of a common assault only.

HE two prisoners were indicted for assaulting the prosecutor and robbing him of five pence halfpenny, to which indictment they had, at an earlier period of the day, pleaded not guilty. The indictment contained only one count, which was the ordinary one for a robbery with violence. Upon the case coming on,

Edwards, for the prisoners, applied for leave to withdraw the plea of not guilty, and for permission for them to plead guilty to a common assault.

T. W. Saunders, for the prosecution, said, that having carefully considered the case, he was of opinion that the charge of robbery could not be supported, and that the facts would only warrant a verdict for an assault; and that if, therefore, it was competent on the present indictment to take a plea of guilty of a common assault, he thought the ends of justice would be sufficiently answered by such a proceeding, and he would offer no evidence of the higher offence. (b)

(a) Reported by E. W. Cox, Esq., Barrister-at-Law.

(b) By the 7 Will. 4 & 1 Vict. c. 85, s. 11, it is enacted, "that on the trial of any person for any of the offences thereinbefore mentioned, or for any felony whatever, where the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony, and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding," &c. 2 K

VOL. III.

REG.

v.

CLEEVES

AND CHIVERS.

LORD DENMAN, C. J.-I think upon this indictment the proper course, in order to carry out the proposed arrangement, will be for the prisoners to plead not guilty, and for some evidence of an assault only to be given, and the jury to return a verdict of guilty of a common assault, under the statute.

Evidence of an assault was then given, whereupon his lordship directed the jury to find a verdict of guilty of a common assault. Verdict accordingly. (a)

NORTHERN CIRCUIT.

LIVERPOOL SPRING ASSIZES, 1848.

(Before BARON ALDERSON.)

REG. v. ABRAHAM.

Evidence-Prisoner's statement.

Where a prisoner had made a statement which accounted for the possession of stolen property before search made, or any suspicion excited: Held, to be admissible for him.

The evidence was, that some glass jars, which had been taken from the prosecutor's shop, were found in the prisoner's house, not concealed. The prisoner had said, before any suspicion was excited, that he had found them in a field.

J. Pollock, on behalf of the prosecution, had urged this upon the attention of the jury.

ALDERSON, B., in summing up, said, that if it was proved that the prisoner had given such an account of his possession of the stolen property to his neighbours, before suspicion existed, or search made, he had not the slightest doubt that, valeat quantum, it would be good evidence for the prisoner.

(a) See Reg. v. Jones, 545, post,

Guilty.

OXFORD CIRCUIT.

BERKSHIRE SPRING ASSIZES, 1848.

Reading, March 1.

(Before MR. JUSTICE PATTESON.)

REG. v. ARLETT.

Practice-Misdemeanor-Quarter Sessions-Jurisdiction.

Upon a bill for a misdemeanor, found at the Quarter Sessions, the defendant traversed.

Held, that the traverse was to the next Quarter Sessions, and not to the assizes which preceded them; and that, although the defendant was in prison, the judge would not permit him to be discharged on his own recognizances.

The Commission of Gaol Delivery extends only to prisoners in the gaol, and not to prisoners in the house of correction.

The judge of assize will discharge, upon his own recognizance, a prisoner committed to the gaol for trial at the Quarter Sessions (where such sessions are to be held after the assizes), if an indictment be not preferred against him at such assizes.

ΑΝ
AN indictment had been found against the defendant at the

Berks Quarter Sessions for poaching, under stat. 9 Geo. 4, c. 69, s. 1, which was a misdemeanor triable at the sessions. Upon the bill so found, the defendant was committed for trial at the next Quarter Sessions, but he availed himself of the right to traverse, given by stat. 60 Geo. 3 & 1 Geo. 4, c. 4, and had continued in prison in default of bail; but the assizes having come on before the sessions,

J. J. Williams, for the defendant, applied that he may be discharged on his own recognizances. He knew only of one case that bore any resemblance to this. In the Spring Circuit of 1838 some prisoners had been committed to the Quarter Sessions that followed the assizes, and Baron Gurney, being of opinion that he was bound to deliver the gaol, under his commission, sent for the prosecutors, all of whom attended and prosecuted at the assizes, save one, and in that case the prisoner was discharged on his own recognizance.

Carrington, for the prosecution, was not called upon.

PATTESON, J.-The question in this case is, whether a person who has chosen to traverse, upon a bill found at the sessions,