Queen, in breach and disregard of the duty of the defendant as such overseer of the poor of the township of Manchester as aforesaid, to the evil example of all others in the like case offending, in contempt of the laws of this realm, to the great damage of the inhabitants of the said township of Sheffield, &c. The second count was similar, except that it did not set out at length the case reserved for the opinion of this Court.

The third count was, in substance, the same as the preceding count, except that it did not allege that the defendant was one of the overseers of Manchester, and charged that he, intending, &c., did wickedly, &c., and without any lawful warrant or authority, and under pretence of being authorized on behalf of the then overseers of Manchester to remove the said M. Lye and her children under the said order, and under colour of the said order, and of the said appeal having been finally determined, remove and convey the said M. Lye and her said children from Manchester to Sheffield, concluding as in the first count.

The defendant demurred to the indictment.

Joinder in demurrer.

R. Hall, in support of the demurrer.The charge contained in the indictment may be viewed either as alleging a removal by the defendant without an order, or as alleging an officious and precipitate execution of an order. But, first, if there be no fraud or menace on the part of the overseer, and the pauper is not, by reason of sickness, unfit to be removed, the removal without any order is not an offence at common law. The King v. Edwards (1), The King v. Warne (2), and The Queen v. Langley (3), may be cited in support of the indictment, but do not apply, as it is not here shewn either that the paupers were settled in Manchester or that the removing township would be burthened. Then, secondly, the offence must rest entirely on the order of removal. The order directs in case no notice of appeal be given within twentyone days, that the paupers were to be removed forthwith after the expiration of the twenty-one days. There is no allegation that any such notice was given, and it can

(1) 8 Mod. 320.

(2) 1 Str. 644.

(3) 2 Ld. Raym. 790.

NEW SERIES, XVIII.—MAG. CAS.

not be presumed; if so, no disobedience of the order is shewn. Then there is nothing to shew that the removal under the order took place before the final determination of the appeal. The Sessions confirmed the order, subject to a case. That is a final determination, though defeasible by matter subsequent.

[PATTESON, J.-The judgment of the Sessions is only conditional in such a case.] The third count differs from the two preceding ones, as it charges that the defendant executed the order without any authority; but there is no negation of the defendant being one of the overseers, and he is alleged to be so in the previous counts. The names of the overseers are not mentioned; and this is fatal on demurrer-The Queen v. Parkes (4).

Pashley, for the prosecution. The indictment is sufficiently explicit. Certainty to a certain extent in general is all that is required

-Co. Lit. 203, Com. Dig. 'Pleader,' O, 25, The King v. Lyme Regis (5), The King v. Stevens (6). The two first counts charge a misfeazance by the defendant as overseer. It is said these counts are double, and The King v. Marshall (7) is cited; but The King v. Spragg (8), recognized in King v. the Queen (9), decides that the indictment may be sustained, if it charges a distinct offence. There is here an intent to cast the burthen of maintaining the pauper upon Sheffield, and the removal, which carries that intent into effect. In The King v. Scofield (10) Lord Mansfield says, "So long as an act rests in bare intention it is not punishable by our laws, but immediately when an act is done, the law judges not only of the act done, but of the intent with which it is done, and if it is coupled with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable," citing The King v. Sutton (11). The King v.

(4) 3 Q.B. Rep. 292; s. c. 11 Law J. Rep. (N.s.) M.C. 102.

(5) Dougl. 144.

(6) 5 East, 244.

(7) 1 R. & M. C.C. 158.

(8) 2 Burr. 993.

(9) 7 Q.B. Rep. 795; s. c. 14 Law J. Rep. (N.S.) M.C. 172.

(10) Cald. 397. (11) 2 Str. 1074.

Ꭰ

Higgins (12) is to the same effect. If an overseer wrongfully relieve or refuse to relieve, he is indictable-Tawney's case (13), 1 Russell on Crimes, 46, The King v. Holland (14). This is a disobedience of an order, which, in a superior court, would be punished by attachment; and such a contempt of an inferior court is indictable. The third count is sufficient. The names of the overseers need not be given; the rule of law only applies to the Justices, the defendants, on prosecuting. In The Queen v. Wyatt (15) a similar objection was overruled. The offence charged is removing, as if the order were complied with. The 3 Will. & M. c. 11. s. 10. makes it indictable if an overseer refuses to receive paupers under an order. Wherever Justices are authorized to make an order it is an offence at common law to contravene that order-1 Wms. Saund. 135, b. (4.) and cases there collected. It must be taken that notice of appeal was given, and that is in the nature of process -The Queen v. the Justices of Middlesex (16). It is erroneous to proceed after a certiorari or writ of error sued out-Cross v. Smith (17), The King v. Battams (18), Com. Dig. 'Certiorari,' E, 2 Wms. Saund. 101, k, Grenville v. College of Physicians (19), 41 Geo. 3. c. 23. s. 2. This is merely an adoption by our courts of the principle of the Roman law that appellatione interposita all proceedings are superseded. On this he referred to Cod. Theod. lib. 11. tit. 30, Justin. Cod. lib. 7. tit. 62, "De appellationibus et sultationibus," Dig. lib. 49, tit. 7, Ulp. lib. 4, "De appellationibus," Voet. Comment. vol. 3. p. 1145, Packman's case (20), Proser v. Hyde (21).

con

Hall, in reply.-The mere fact of an appeal being commenced does not stay the right of removal-Millbrook v. St. John's, Southampton (22). But admitting the removal to be irregular, no case is cited to

(12) 2 East, 5.

(13) 1 Bott, P.L. 333.
(14) 1 Term Rep. 692.
(15) 2 Ld. Raym. 1189.

(16) 15 Law J. Rep. (N.S.) M.C. 100. (17) 1 Salk. 148.

(18) 1 East, 298.

(19) 12 Mod. 386.

(20) 6 Rep. 19.

(21) 1 Term Rep. 414.

(22) Set. & Rem. Cases, 88.

There are many

shew that it is indictable. things done by sheriffs and other officers wrongfully, for which an indictment has never been supposed to lie.

COLERIDGE, J. (23).-When the argument began, several objections were taken to the first two counts, which appear not to be applicable. These counts charge that the defendant did certain things from corrupt motives, which might work an injury to the parish of Sheffield, and after an appeal was lodged against the order, and before its final determination. A great many authorities were referred to, from which we are not inclined to differ, as to the effect of an appeal upon proceedings taken subsequently to its being entered. The real question is, whether any indictable offence is here charged. Narrowed to that point I think the same question arises on all the three counts. I cannot see any indictable offence charged, and I am not anxious to extend the limits of the criminal law, especially as no authority in point has been cited to us. Here an order was made, and no notice of appeal is stated to have been given against it, but an appeal was lodged, on which the Sessions have confirmed the order, subject to the opinion of this Court upon a case. At this stage of the proceedings the pauper is removed, but it does not appear that any fraud or menace was made use of in the removal. I do not see how this brings the defendant within the criminal law. Even supposing a contempt of the Quarter Sessions to have been committed, I am not prepared to say that an indictment might therefore be sustained. However, that is unnecessary to be decided, as I think there is no contempt shewn.

WIGHTMAN, J.-The charge in this indictment is not for assault or false imprisonment, or any improper restraint of the person, but it is founded on the execution of an order of removal, which had been appealed against and confirmed, subject to a special case. It was said this was a conditional decision by the Sessions, and that the appeal was therefore still undetermined; and the argument for the prosecution is, that it is an indictable offence to execute the order during that period. In part of the argument

(23) Lord Denman, C.J. was at Nisi Prius, and Patteson, J. had gone to chambers.

it was treated as a contempt, and many analogous cases were cited to shew that an appeal had the effect of suspending all proceedings. That is certainly so: but no authority was brought forward to shew that a party who was successful at the sessions is indictable if he acts upon the judgment given in his favour. We must take care that no injustice is done by indictments being improperly preferred.

ERLE, J.-I take it to be our duty to prevent a party being held liable to an indictment, unless there has been some violation of known law. Here no such case is made out. The only matter stated is, that the removal took place pending an appeal against the order of removal. It has been assumed, that an appeal against an order of removal necessarily suspends the proceedings to enforce the order; no direct authority was cited for that proposition, but only several cases which Mr. Pashley treats as analogous. I am not quite prepared to say how it would be in this particular case. It is, however, enough for us to decide that here no positive rule of law has been infringed, and that therefore this indictment will not lie.

Indictment-Conspiracy-Overt ActMerger of Misdemeanour in Felony.

Where the evidence in support of an indictment for a conspiracy shews the object of the conspiracy to be in itself felonious, and that a felony was committed in carrying it out, the defendants are not entitled to an acquittal on the ground that the misdemeanour is merged in the felony; nor is it any ground for arresting the judgment that on the face of the indictment itself the object of the conspiracy amounts to a felony, the gist of the offence charged being the conspiracy.

An indictment charged that A, B & C. being in the employment of C. L. a dyer, conspired to use his vats and dye, &c., in dyeing wool, &c., not belonging to themselves, and not intrusted to them by C. L. for that purpose, and to get profit to themselves, and to deprive C. L. of the use of his vats, dye,

&c., and, in pursuance of such conspiracy, the defendants without the leave of C. L. received materials, which they dyed with the vats and dye of C. L. for their own profit. It was proved that the defendants used the dye, &c. of C. L. for dyeing goods for various persons for their own profit:-Held, first, that the defendants were not entitled to an acquittal on the ground that, on the facts proved, a felonious taking of the dye was made out, and that the misdemeanour, therefore, merged in the felony. Secondly, that the indictment was not bad in arrest of judgment.

Indictment for conspiracy.

The third count charged, that before and at the time of the conspiracy thereinafter next mentioned, one Charles Lewis carried on the trade and business of a dyer, and had in his possession and upon his premises divers large quantities of dye and other implements necessary for the carrying on the business last aforesaid, and that the defendants were employed and retained by the said C. Lewis, as his servants, in and about the management of the said last-mentioned trade and business; and that it was their duty, as such servants, to employ and use the last-mentioned vats, dye, and other implements, for the benefit, profit, and advantage of the said C. Lewis, and for the dyeing, preparing, and working up of such woollen, silken, cotton, and other materials as might belong to themselves, or might be intrusted to them by the said C. Lewis, for the purposes last aforesaid; and to employ and use the said last-mentioned vats, &c. for no other purposes, and upon no other materials whatsoever; and that the said defendants, on &c., did unlawfully conspire and combine together and with other persons to the jurors unknown, fraudulently, and without the consent of the said C. Lewis, to use the said vats, dye, and other implements, in and about the dyeing, preparing, and getting-up of divers large quantities of woollen, cotton, and silken materials, not belonging to themselves, and not intrusted to them by the said C. Lewis for that purpose, and to obtain and acquire to themselves, by the means last aforesaid, divers large profits, &c., and to deprive the said C. Lewis of the proper use of the said lastmentioned vats, dye, &c., and that the defendants, in pursuance of the said last-men

tioned conspiracy, &c., on &c., wilfully and without the consent of the said C. Lewis, did receive and take into their possession divers large quantities of materials, that is to say, &c., and did wilfully and without the consent of the said C. Lewis, at his expense, and with his aforesaid dye-vat and other implements, dye and prepare, and cause and permit and procure to be dyed and prepared, the said large quantities of materials, and for their own profit and advantage, to the great damage, &c., and against the peace, &c. The fourth count charged, that before the committing, &c. the said C. Lewis carried on the trade and business of a dyer, and that the said defendants had engaged themselves, and were employed and retained by the said C. Lewis as his servants in and about the management of the said trade and business on his behalf, and for certain wages to be paid to them which before that time had been agreed upon, and that the said defendants, on &c., did unlawfully conspire, combine, &c., by artful means and devices, to obtain and acquire to themselves divers large sums of money, by fraudulently and without the consent of the said C. Lewis using the dye and implements of trade of the said C. Lewis, in and upon the dyeing and otherwise preparing and working up of divers large quantities of woollen, cotton, silken, and other materials for their own use and benefit, and to the injury and loss of the said C. Lewis in his said last-mentioned trade and business, and that the said defendants in pursuance of the said last-mentioned combination, &c., to wit, on &c., wilfully and without the consent of the said C. Lewis did receive and take into their possession divers large quantities of materials, that is to say, &c., and did wilfully, and without the consent of the said C. Lewis, at his expense, and with his dye, &c. prepare and cause to be prepared the last-mentioned quantity of materials for their own profit and advantage, to the great damage, &c., and against the peace, &c.

Plea, Not guilty.

At the trial, before Erle, J., at the sittings at Westminster after Michaelmas term, 1846, it appeared that the defendants being in the employ of the prosecutor, had, with the dye and materials belonging to him, on various occasions dyed for persons who brought goods to be dyed, and taken the

money. It was objected that the offence, if proved, amounted to felony, as it was either a theft of the dye or an embezzlement of the money produced by the dyeing, and that the misdemeanour was therefore merged in the felony, and that the Judge on that ground ought to direct an acquittal. Erle, J. overruled the objection, and the jury returned a verdict of guilty, which was entered on the above counts of the indictment.

In Hilary term following a rule nisi had been obtained for a new trial, on the ground of misdirection on the objection raised at the trial, or for arresting the judgment.

Sir F. Thesiger, Ballantine, and Peacock shewed cause.-It is contended on behalf of the defendants, first, that though it may be true that it is an indictable offence to conspire together to commit a felony, yet if it should turn out that a felony was actually committed, the defendants would be accessory before the fact to a felony, and therefore entitled to an acquittal on this indictment; and secondly, that if a distinct felony should appear on the trial of the indictment to have been committed, the defendants ought to have judgment, on the ground that the misdemeanour is merged in the felony. As to the principle of merger, little authority is to be found. It never has been decided that if a defendant be acquitted of a misdemeanour, and afterwards indicted for the same offence laid as a felony, he could not plead autrefois acquit. In The Queen v. Cross (1), which was an indictment for a misdemeanour for receiving stolen goods, judgment was arrested because by the 3 & 4 Will. & M. c. 9. s. 5, the offence had been made felony, and could not be indictable as a trespass; but there is no such general rule as to merger laid down in any of the books. If there be such a rule, on what principle is it founded? Was it supposed that the Crown might lose its forfeiture if a felony were treated as a misdemeanour? The cases subsequently decided depend on the words of particular acts of parliament. The Queen v. Neale (2) the prisoner was indicted for a misdemeanor in having carnally known a child under twelve years of age. The jury found that he effected his purpose by force and against the child's will, and this was held by the fifteen Judges (1) 1 Ld. Raym, 711.

(2) 1 Car. & K. 591; s. c. 1 Den C.C. 36.

In

to be no ground of acquittal. There the of fence was one created by act of parliament. That offence was proved, and also another offence, which was a felony at common law. Isaacs's case (3) seems an authority the other way. There the prisoner was indicted for a misdemeanour in setting fire to a house in his own occupation, contiguous to other houses. It was proved that he had, in fact, set fire to his house in order to defraud an insurance office, the crime being therefore a felony; and Buller, J. held that the misdemeanour was merged in the felony, and directed an acquittal. But could it be said that such a misdemeanour as was there alleged would merge in the felony of setting fire to another man's house? That case cannot be supported. In The King v. Story (4) the prisoner was indicted for a misdemeanour in receiving money under false pretences, and the evidence was that he got the money from the post-mistress, under pretence that he was John Story, to whom a money order was payable, and that on the receipt of the money he signed his own name, and Chambre, J. doubted whether the signature of the prisoner's name did not amount to a forgery, "in which case the lesser offence would have been merged." The point, however, was not decided by the Judges, as they held that there had been no forgery. In The King v. Evans (5), the prisoner was indicted for obtaining goods under false pretences. The evidence was that he had uttered a forged request for the delivery of the goods, which is made felony by statute 11 Geo. 4. & 1 Will. 4. c. 66. s. 10; and Taunton, J. held that he had been improperly indicted for the misdemeanour, and directed an acquittal; but there the offence had been made a felony by statute, which distinguishes the case from The Queen v. Neale. But supposing the rule to be that where tl e evidence in support of a criminal charge established a charge of a different and higher character from that alleged in the indictment, the prisoner is entitled to an acquittal, how does that rule apply in this case? This is an indictment for a conspiracy which may be made out without any overt act whatever. The concert is the gist of the offence, and can it be said that the charge falls to the ground because

(3) 2 East, P.C. c. 21. s. 8. p. 1031.
(4) Russ. & R. C.C. 81.

(5) 5 Car. & P. 553.

the defendants are proved, subsequently to such concert, to have done something more criminal than that which they concerted to do?

[LORD DENMAN, C.J.-It will be hardly contended that after an indictment for a misdemeanour has been preferred, the defendants can purge themselves of the offence by committing a felony.]

The argument must go that length. Secondly, as to arresting the judgment, it is said that this indictment if it is taken to be a conspiracy, is a conspiracy to do that which does not amount to an offence. The 17 Geo. 3. c. 56. s. 17, after reciting that journeymen dyers and apprentices and servants frequently abused the trust reposed in them by dyeing goods for their own profit or without the consent of their masters, provides that "if any person employed as a journeyman dyer or as servant or apprentice in dyeing any felt or woollen, &c. shall, without the consent of his master, &c., wilfully dye any of the said materials or shall without such consent wilfully receive any such materials for the purpose of dyeing the same," he shall be subject to certain penalties. It is said that in the allegation of the dyeing by the defendants, it is not alleged that the goods were not the goods of the defendants themselves or of Lewis; but this allegation only forms a part of the overt act, and the allegation of the overt act may be rejected altogether. Besides, if the goods were the goods of the defendants themselves, the statement of the conspiracy shews that the defendants used them for purposes other than those for which they had a right to use them. It amounts to a conspiracy to defraud the master of the dye. But it will be said that, on the face of the indictment, the defendants conspired to commit a felony, and were therefore accessaries to the felony, but it is not stated on the face of the indictment, nor was it proved in fact that any felony was committed.

[PATTESON, J.-Suppose A, B, and C were indicted for conspiring to murder M, and there was the evidence of some one who overheard them concert the murder; and afterwards A, B, and C. are seen to murder M, could you convict for the conspiracy?]

[LORD DENMAN, C.J.-Can it be said that where the jury are sworn to try one question of fact, the additional fact that