something else has been done beyond that which they are trying is a ground for an acquittal? is it not rather a ground for an application of the Court to have the defendants tried for the higher offence?]

There is no such plea known to the law as that the conspiracy or misdemeanour gave rise to a subsequent felony for which the defendants are answerable and liable to be convicted. If, in the instance put by the Court, B. and C. who, together with A, conspired to murder M. afterwards countermanded A.'s authority, and he nevertheless did murder M, would B. and C. be acquitted of the conspiracy because A. committed the murder, and also of the murder because it was done without their authority?

[PATTESON, J.-It might be that the only evidence of the conspiracy was the committing of the felony.]

That might well be, and yet it would not the less be a conspiracy. The indictment here does not amount to a good indictment for felony. It is also objected that there is no allegation of duty on the part of the defendants to meet that which is alleged as a breach of duty; but no duty need be alleged. Is it necessary in any indictment for conspiracy to allege that it was the duty of the defendants not to conspire? and the offence here is the conspiracy.

Allen, Serj., and Huddleston, contrà.—It was no part of the duty of the defendants to act as they did in the process of dyeing even with respect to their master's goods; if it had been, they might have been charged with embezzling the dye and other materials In this case the result of that which was said to have been done, was practically the same as if they had taken the dye out of the vats, and was simply a larceny of the dye.

[ERLE, J.-There was, no doubt, some complexity as regarded the proof, as there was a limited permission to the defendants to dye for themselves, but the question is as to the goodness of the indictment.]

First, as to the question of merger. The King v. Cross is precisely in point. In Procter v. Darnbrook (6) the defendants were proceeded against in the Star Chamber for a riot, and it appearing that one of those hurt in the riot died within three months afterwards, the Justices considered that the case exceeded the capacity of the Court, and directed the prosecutor to prefer his bill of in(6) Hob. 138.

dictment at the next assizes. It may be true that a person acquitted of a felony may be afterwards charged with a misdemeanour contained in that very felony, but there is no merger in such a case, no felony having been committed. In Foster's Cr. Law, Discourse 3, c. 3. s. 6, it is said “ By 3 & 4 Will. & M. and 5 Anne, receivers of stolen goods knowingly are made accessaries after the fact, and liable to transportation by 4 Geo. 1. Before the statute of Will. & M., receivers, unless they likewise received and harboured the thief, were guilty of a bare misdemeanour, for which they were liable to fine and imprisonment or other corporal punishment; but that act having made them accessaries and consequently felons, the prosecuting them for a bare misdemeanour was held by all the Judges at a conference about the latter end of King William's reign to be improper and illegal; for the misdemeanour was merged and absorbed in the crime of felony, just as felony at common law when made high treason by statute, which hath been done in a few cases, is merged and absorbed in the treason." In the cases of The King v. Evans, and The Queen v. Anderson (7), the principle does not appear to have been doubted. It is also clear that the plea of autrefois acquit of the felony would not include the misdemeanour, since every felony must be larger than a mere trespass. If in a civil action a plaintiff sues altogether in a wrong form, in debt, for instance, for an aggravated trespass, the judgment, if recovered, could not be pleaded in bar to a subsequent action of trespass. The Queen v. Neale was the case of a statutable misdemeanour.

[ERLE, J.-Could a man who had been convicted and sentenced for the misdemeanour be subsequently indicted for the rape?]

No; for the rape includes the assault. The conspiring and combining to steal makes. the parties accessaries before the fact, and makes them felons. The offence which was attempted to be proved was neither more nor less than the stealing of the dye. In The Queen v. Neale the Judge's attention was not called to the point that the same facts would not make out the statutable offence. In 2 Hawkins's Pl. Cr. c. 35. s. 5, and c. 36. s. 7, it is said, that the reason (7) 2 Moo. & R. 469.

why an indictment for a misdemeanour is no bar to an indictment for felony is, that the judgments are different. There was, therefore, in this case a misdirection, as the Judge should have directed an acquittal. In Lutterell's case (8), "by Holt, C.J., at Nisi Prius, ut audivi, this difference was taken. If a civil action be brought, as trover for goods, after recovery, you may indict for trespass or felony for the same taking, because the offences or causes of action are of a different nature, the one civil, the other criminal; but if the first prosecution had been criminal as an indictment for trespass, and the crime appears to be felony, then you cannot have a verdict or judgment for trespass, it being the inferior." Secondly, the indictment is bad in arrest of judgment, as it does not shew that the defendants conspired to commit any offence, or what it was. The master is not mentioned to be a dyer of the substance mentioned in the act. The defendants are not said to be journeymen dyers, what they did is said to have been to the injury of C. Lewis, but there is no conspiracy to defraud or injure.

[ERLE, J.-It is said to have been done without Lewis's consent.]

His consent would not be necessary; they might work extra hours and pay the master. It is said that the fourth count discloses the relation of master and servant, but no duty is set forth; but it is necessary to give the offence which is charged a particular character for anything that appears the goods may have belonged to the defendants.

[ERLE, J. But they are charged with a conspiracy to dye goods, &c. not belonging to themselves, &c.]

But there is no overt act connected with that allegation.

[LORD DENMAN, C.J.-But the most innocent act may be alleged to support the most flagrant conspiracy.]

If the indictment purports to set out overt acts it should shew distinctly that some offence is contemplated, and what that offence is The Queen v. Seward (9), although it may be true that it is not necessary to allow any overt act whatever-King v. the Queen (10) in error, The King v.

(8) 6 Mod. 77.

(9) 1 Ad. & E. 706.

(10) 7 Q.B. Rep. 795; s. c. 14 Law J. Rep. (N.S.) M.C. 172.

Richardson (11), The Queen v. Peck (12). Cur, adv. vult.

LORD DENMAN, C.J., subsequently, (May 1) delivered the judgment of the Court (13). The indictment charged that the defendants, being in the employ of the prosecutor, a dyer, unlawfully conspired to use the dyeing materials on articles not intrusted to them for dyeing and not belonging to themselves or their families, and so to defraud their employer of profit. The evidence shewed that the prosecutor permitted his servants to dye any articles belonging to themselves or their families, but not things belonging to others, and that the defendants had taken in articles not belonging to themselves or their families, and had dyed them for profit with the materials of their employer, and passed them off for articles within the prosecutor's permission. Several objections to the indictment and the evidence were made at the trial and in support of the rule for arresting the judg ment or for a new trial, and have been disposed of. But the objection that the misdemeanour charged formed part of a felony, and was merged therein, and that, therefore, either the judgment should be arrested or a verdict of acquittal entered, was reserved for consideration.

With respect to arresting the judgment, it is clear that the essential part of the indictment is the charge of a conspiracy, so that if the evidence proved the conspiracy, and did not prove the overt act alleged, viz. that the conspiracy was carried into effect, the indictment would have been sufficiently proved. The point, therefore, is not raised by the indictment. With respect to the evidence, we do not purpose to examine the correctness of the opinion of the learned Judge at the trial, that it did not prove a larceny, and that it tended rather to prove the obtaining of goods by false pretences than theft; but assuming that the evidence to prove the conspiracy would have been sufficient to warrant a conviction upon a charge of larceny against principals and accessaries, and that the point contended

for by the defendants' counsel was raised, we have to decide, whether the defendants had therefore a right to claim a verdict of acquittal. The main reliance was placed on The King v. Cross, where the defendant was convicted of a misdemeanour in receiving stolen goods knowing them to have been stolen, and the Court decided to arrest the judgment, because the offence was a felony created by the 3 Will. & M. c. 9. s. 4, and was not indictable as a trespass; and Holt, C.J.adds "If the proceeding was at common law, the fact charged was evidence that the defendant was accessary after the fact to a felony." But this case is irrelevant to the present question, which arises only in respect of felonies composed of a series of acts where a part of the series is a complete misdemeanour. The receipt of stolen goods knowingly does not of necessity comprise any series of acts. On the contrary, that offence is not committed at all unless the receipt and the knowledge are simultaneous, in which case by the common law they might be evidence of the defendant's assisting a felon, and so of being guilty of a felony as an accessary after the fact, and by the statute then in force those facts constituted a felony. The offence was a felony, and a felony only, and therefore an indictment charging it to be a misdemeanour was held wrong in law. The case does not shew that a criminal who has been guilty of a complete misdemeanour, and also of a felony comprising the misdemeanour, may set up his felony as a bar to the prosecution for the misdemeanour. The case of Procter v. Darnbrook gives no support to the defendants' case, but serves to explain the principle upon which Judges have acted in the exercise of their discretion in some cases of misdemeanour. The plaintiff was suing the defendants in the Star Chamber for riots and for felling of woods, and his proof went to shew that the defendants in the course of their riotous acts had committed murder, and the Judges think it fit that the plaintiff should prefer a bill for murder to the grand inquest, and adjourn the further hearing of the plaintiff's suit for the riots till the question of murder should be disposed of by the proper tribunal. The jurisdiction here exercised by the Judges of the Star Chamber is exercised now by Justices of oyer and terminer, who may direct

one indictment to be quashed or suspended and another preferred, as public justice may require. But the Court, by making the plaintiff prosecute for the felony before he went on with his suit, gave no sanction to the notion that the defendant has any right so to interfere, and to demand an acquittal for a manifest minor offence upon the pretext that he has a right to direct himself to be prosecuted for a graver crime.

The passage cited from Foster, Discourse 3, c. 3. s. 6. relates solely to the offence of knowingly receiving stolen goods, and the observations above made upon The King v. Cross apply equally to shew this passage to be irrelevant here. In Isaacs's case, the prisoner was indicted for the misdemeanour of setting fire to his own house, whereby adjoining houses were in danger of being burnt. The evidence was that he had set fire to his own house to defraud the insurance company, and that the adjoining houses had been burnt down; the Judge directed an acquittal for the misdemeanour, stating that upon those facts the prisoner was guilty, if at all, of felony. By the law at that time the mere setting fire by a man to his own house was no offence, but if his house was so situate that other houses were endangered, it was a misdemeanour, being in the nature of an attempt to set them on fire. If they were burnt it was a felony; it was a setting fire to them, every man being taken to intend the obvious consequence of his act -see the cases in 2 East, P.C. c. 21. s. 7. The learned Judge who directed the acquittal may have considered that the crime of arson consists in the one act of setting fire unlawfully and that after the fire has been so set the party is responsible for its progress until it is extinguished; and that the progress decides whether such setting on fire is a felony or misdemeanour, and that a prisoner who has committed a felony and no other offence cannot properly be charged with the misdemeanour of an attempt to commit it, and also he may have considered that public justice required a more signal example in a case of such guilt.

On both or either of these grounds the case is distinguished from the present.

In The Queen v. Evans and The Queen v. Anderson the misdemeanour of obtaining goods by false pretences was charged, and the evidence shewed the false pretence to be

a felony, namely, the uttering of a forged instrument. In the first case the Judge, in the last the prisoner, objected that as the evidence thus shewed a felony to have been committed, therefore the charge of misdemeanour failed, and two Judges supported the prisoner's objection, declaring that the proper way of proceeding was by indictment for felony. It is clear, that if a misdemeanour is by statute made a felony, the indictment ought to be for felony, and these cases may have been taken to come within this rule; the first step in the misdemeanour charged being created a felony, and if so, they are here irrelevant. But it should be observed, that the misdemeanour of obtaining goods on false pretences consists of a series of acts, the false pretence and the obtaining of the goods, and that the first step in the series may also be a felony. Where that is the case there appears no reason why the prisoner should be allowed to defeat the charge of the lesser offence, by alleging his own guilt of the greater offence. The same act may be part of several offences, the same felony may be the subject of inquiry in consecutive charges of murder and robbery; the acquittal on the first charge is no bar to a second inquiry where both are two charges of felony; neither ought it to be where the one charge is of felony and the other of misdemeanour. These being the authorities cited for the defendants there appears none direct in their favour, and there is a direct decision against them in The Queen v. Neale, where a charge of misdemeanour in having intercourse with a female child between the age of ten and twelve was held proved, and the conviction maintained by the Judges, although the evidence shewed that the very act charged as a misdemeanour was also the felony of rape, the argument for the prosecution being, that every material allegation of the indictment was proved, and that the verdict ought to be according to truth. This is a direct adjudication that a misdemeanour which is part of a felony may be prosecuted as a misdemeanour, though the felony has been completed; and the attempt on the argument to make a distinction between misdemeanours by statute and those by common law was not successful, as the incidents to a misdemeanour are not affected by the origin in law from whence it was derived. It was further urged for the defenNEW SERIES, XVIII.-MAG. CAS.

dants, that unless this defence was sustained they might be twice punished for the same offence. But this is not so, the two offences being different in the eye of the law. If, however, a prosecution for a larceny should occur after a conviction for a conspiracy, it would be the duty of the Court to apportion the sentence for the felony with reference to such former conviction.

If the position contended for by the defendants were true, its application would be subject to much uncertainty, for it is not within the province of the Judge in general to decide on the credibility of the witnesses or the weight of the facts tending to prove a felony, but according to the present contention the duty of acquitting on his own opinion is cast upon him; and this conclusion of fact, in which, probably, the jury would not have concurred, is to be subject to no review. Also, if he should be satisfied that a felony is proved, and should direct an acquittal for the misdemeanour, it is obviously uncertain whether the same evidence would be given upon a prosecution for felony, or would be satisfactory to the jury, or would be left without answer. The felony may be pretended, to extinguish the misdemeanour, and then may be shewn to be but a false pretence; and entire impunity has sometimes been obtained by varying the description of the offence according to the prisoner's interest; and he has been liberated on both charges solely because he was guilty upon both. Upon this review we are of opinion that this conviction for a misdemeanour ought to be sustained, although the evidence proving it proved also that it was part of a felony, and that such felony had been completed.

Rule discharged.

THE QUEEN V. JOSEPH BOOTH.

Parish Constable—Substitute—Overseers'

List-Qualification.

Under the 5 & 6 Vict. c. 109. it is not necessary that the deputy of a parish constable should be on the overseers' list of qualified persons.

The overseers of the township of S. made out a list of 100 persons qualified to act as parochial constables. This list was allowed by the Justices at a special Sessions, and

E

thirteen persons chosen by them from such list to serve as constables. A. B, one of the number, proposed C. D, whose name was not on the list, but who was rated at 291. and upwards, as his substitute, and C. D. was accepted by the Justices and sworn in accordingly-Held, that C. D. was well appointed. Semble, also, that no qualification is necessary for a substitute.

A rule had been obtained calling upon Joseph Booth to shew cause why an information in the nature of a quo warranto should not be exhibited against him, to shew by what authority he claimed to hold the office of constable of the township of Sowerby, in the West Riding of Yorkshire, "upon the ground that his appointment was invalid, inasmuch as it was made of a party whose name was not contained in the list of constables, as required by the statute 5 & 6 Vict. c. 109 (1).

The rule was granted on affidavits which stated that on the 17th of February 1848 a vestry meeting of the inhabitants of the township of Sowerby was held, pursuant to the above statute, for the purpose of making out a list of 100 men qualified and liable to serve as parochial constables, in pursuance of a precept from two Justices to the overseers; that a list was accordingly prepared, at the meeting, of 100 persons qualified and liable to serve as parochial constables, with their places of abode, and that such list was, on the 28th of March, produced and verified before Justices at special petty sessions held for the appointment of constables, and allowed by them, and the Justices chose from the list thirteen persons to serve as parochial constables; that Joseph Booth attended at the petty sessions, and objected to some of the persons appointed, and the Justices decided in favour of his objections; that Booth subsequently proposed that Mr. Clarke, one of the persons named in the list, and who was a gentleman of fortune and a rate-payer, to be a constable and precept-server (an office held by one of the constables), and on its being observed that it was not likely that Mr.

(1) That an information in the nature of a quo warranto will lie against a parish constable, see The King v. Goudge, Str. 1213. The particulars of the objection to the title of the defendant must be specified in the rule; see Reg. Gen. Hil. T. 7 & 8

Geo. 4, 6 B. & C. 267; and The Queen v. Edye,

ante, Q.B. 6.

Clarke would serve precepts, Booth stated that he had made an arrangement with Mr. Clarke to serve as his substitute; and that the Justices thereupon appointed Clarke constable and precept-server. That at a subsequent adjourned petty sessions, on the 3rd of April, Mr. Clarke attended and proposed that Booth should be appointed as parochial constable and precept-server as a substitute for him, and the Justices accordingly accepted Booth as such substitute, and Booth was accordingly sworn in as a parochial constable, and had subsequently performed the duties of constable and process-server; and that Booth's name was not in the overseers' list. It appeared from Booth's affidavit in opposition to the rule, that he was an inhabitant of the township of Sowerby, and rated to the relief of the poor in 291. and upwards.

Knowles shewed cause.-Booth was properly appointed as Clarke's substitute. The provisions of the 5 & 6 Vict. c. 109. are clear. By section 3. the overseers, in obedience to the precept of the Justices, are to make out a list of persons qualified and liable to serve as constables; such qualification being (section 5.) the being rated to the poor on tenements to the value of 4l. and upwards, and being between twenty-five and fifty-five years of age. The overseers may also (section 3) annex to the list the names of persons who, though not qualified, are willing to serve as constables. It is not denied that Booth was qualified, though he was not put on the overseers' list, and all that the act requires, (sections 11, 12, 13,) is that a person unwilling to serve shall find a qualified substitute: it is not said that he shall both be qualified and on the list.

[COLERIDGE, J.-The constables are chosen by the Justices out of the list. When it has been allowed by them after striking out disqualified persons, it may be contended that a person, whose name is not on the allowed list, cannot be said to be qualified within the act of parliament.]

Huddleston, contrà.-The object of the act of parliament is defeated if private arrangements such as that which was made in the present case are to interfere with the nomination of the vestry. Here Booth gets the Justices to nominate Clarke, knowing that Clarke will not serve, in order that he

(Booth), against the wishes of the parishioners, should hold the office. The design