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Brampton was then called, who was also fession was inadmissible by reason of the present at the conversation, and she swore inducement, as was decided in The Queen that Mr. Gilby told the prisoner, in the v. Laugher. presence of the mistress and her husband, [Pollock, C.B.-- In that case the point that it would be better for her to speak the was, whether, the words having been spoken truth; she could not tell whether he told in the presence of the constable, there was her so before he asked her what she had an inducement by a person of competent done, but it was before she answered. His authority.] Lordship then recalled Mr. Gilby, and in It was therefore admitted that the words answer to his questions, he said, “I could themselves were sufficient inducement. not positively swear that I did not tell the [Maule, J.-The words have been over prisoner that it would be better for her to and over again held to exclude confessions.] tell the truth. I do not recollect that I did. I [ERLE, J.-Some of the Judges have cannot say positively what was the first thing thought, and as it appears to me correctly, I said to her, I believe I asked her what she that an exhortation to tell the truth is not had put into the milk. It is very likely I might an inducement to confess. It is a question tell her it would be better for her to tell the for the Judge at the trial to determine truth. Smith (the husband) with his wife, the whether the words amounted to an inducemistress, were both present, and heard what ment or not.) I said.” Smith, who had been examined as [Patteson, J.-In The King v. Kingston a witness, could not recollect what was said. (6), the words were spoken by a surgeon,
The counsel for the prisoner contended and the evidence was excluded.] that the learned Judge ought to strike the The words in this case were, therefore, confession out of his notes, and not submit spoken by a competent person. it to the jury. The following cases were cited [PATTESON, J.-If the whole of the evi- The King v.
Spencer (2), The Queen v. dence had come out upon the first examinTaylor(3), The Queen v. Laugher (4). After ation of the witness Gilby, I should certainly consulting with Lord Denman, his Lordship have rejected the confession; but the doubt declined to strike out the evidence of the I had was, whether as the affirmative was confession, and put the whole to the jury, on the prisoner I could exclude the evidence. feeling that it was impossible, after they had If I had felt myself at liberty to do so, I heard the confession, to expect that they should have excluded it.] could weigh and consider the other facts in (He was then stopped by the Court.) the case without reference to the confession, and in truth those other facts by themselves POLLOCK, C.B.—We are all of opinion would not have warranted a conviction. The that the conviction cannot be sustained. deposition of the mistress, which had been
Conviction quashed. taken by a Magistrate in the presence of the prisoner, and which mistress was proved to be incapable of being removed, and to be in a hopeless state under a disease called
(CROWN CASE RESERVED.) dropsy, was then read, detailing the same 1848.
THE QUEEN V. ORLANDO conversation between Mr. Gilby and the Nov. 11. prisoner, but not stating anything with regard to the use of threats or promises.
Embezzlement- Possession of MasterThe jury found the prisoner guilty; and
Recorder, Power of, to reserve Questions the learned Judge requested the opinion of
under the 11 f. 12 Vict. c. 78. the Judges whether he was right in the The prisoner had, as a servant, in the course he adopted.
course of his duty, received from a fellowFlowers, for the prisoner (5).-The con- servant money paid to that servant for his
master, by another servant who had received (2) 7 Car. & P.776.
it from the customers. It was the duty of the (3) 8 Ibid. 733. (4) 2 Car. & K. 225.
prisoner, after such receipt, to hand the money (5) No counsel appeared in support of the conviction.
(6) 4 Car. & P. 387.
to another servant (the cashier) of his with embezzling three sums of money receivmaster ; but instead of handing it over, he ed by him for and on account of his master, fraudulently retained it :-Held, that this the prosecutor. It appeared in evidence was embezzlement.
that the course of business adopted by the Semble—the recorder of a borough has house was for the customers to pay monies power to reserve questions of law under into the hands of certain persons who paid the 11 & 12 Vict. c. 78.
them over to a superintendent; and he
accounted with the prisoner, and paid over The prisoner was convicted at the Mi- such monies to him ; and the prisoner in his chaelmas Quarter Sessions for the borough turn accounted with cashiers, and paid over of Birmingham; and the following case was the monies to them, he having no other submitted by the Recorder :
duty to perform with respect to such monies The Recorder of Birmingham respectfully than to keep an account which might act submits for the consideration of the learned as a check on the superintendent and the Judges two questions of law: first, whether, cashiers, their accounts being in like manner under the 11 & 12 Vict. c. 78. ss. 1, 2, ques- checks upon him. These four parties to tions of law may be reserved by Recorders ; the receipt of the monies are all servants of secondly, whether the conviction of Orlando the prosecutor. With respect to the three Masters was a good conviction. As to the sums in question it was proved that they first question, the power to reserve is not in passed in due cours
arse from the customers express terms given to Recorders; and it through the hands of the immediate receivers may be contended that the Courts of Quarter and the superintendent to the prisoner, who Sessions mentioned in the act are Courts wilfully and fraudulently retained them. composed of Justices of the Peace. On the On behalf of the prisoner, it was objected, on other hand, it may be inferred that the first the authority of The King v. Murray (2), section, when enumerating the Courts to that the monies having, before they reached which the power is given uses the word the prisoner, been in the possession of the "any," which would seem to override the prosecutor's servants, did in law pass to the whole class enumerated ; and, consequently, prisoner from his master; and that, conseapply to Courts of Quarter Sessions; and quently, the charge of embezzlement could that the second section enacts, that the Court not be sustained. For the Crown it was of Quarter Sessions shall state the case. In answered, that the prisoner having interboroughs this Court consists of the Recorder rupted the monies in their appointed course sitting as the sole Judge under 5 & 6 Will. 4. of progress to the master, this case was not c. 76. s. 105. He is, moreover, ex officio, governed by that of The King v. Murray, a Justice of the Peace,-s. 103. It would where the prior possession of the master thus appear that borough sessions are having been as complete as it was intended within the words of the act; and the absence to be, the money might reasonably be conof any express distinction between county sidered as passing from the master to the sessions and borough sessions might be prisoner; whereas, in the present case, it urged, to shew that no such distinction was was in course of passage through the hands intended. Indeed it would be difficult, if of the prisoner to the master. The Recorder not impossible, to find any motive for with- left the case to the jury, reserving the points. holding a power from recorders' courts, The prisoner was convicted and sentenced which is thought necessary to the due ad- to twelve months' imprisonment, with hard ministration of justice in courts exercising a
labour. similar jurisdiction (1). As to the second Miller (Mellor with him), in support of question, the case is as follows:-Orlando the conviction (3).— The objection to the Masters, a clerk in the employment of Wil- power of the Recorder was not taken at liam Holliday, was tried, at the last Michael- the trial; but, if necessary, it will be argued mas Quarter Sessions for the borough of that there is no such power. The Court is Birmingham, on an indictment, charging him
(2) 1 Moo. C.C. 276 ; s. c. 5 Car. & P. 145, n.
(3) Before Pollock, C.B., Patteson, J., Maule, J., (1) This point was raised by the learned Recorder Cresswell, J. and Erle, J. No one appeared for the himself, no objection having been made at the trial. prisoner.
described in the act as the Justices, in the The notice of an intended information plural.
before a special Sessions, for the purpose of [Pollock, C.B.-If the conviction be obtaining an order for payment of a portion right, the other question need not be argued.] of a highway rate to the trustees of a turn
The conviction was right. The distinc- pike road, under the 4 of 5 Vict. c. 59, tion between this case and that of The need not state what portion of the road is King v. Murray is pointed out in the case out of repair, or to what purpose the money submitted.—(He was then stopped by the is to be applied, or that the road is within Court.)
the division for which the Sessions are
held. POLLOCK, C.B.-We are all agreed that The order made in pursuance of such the conviction is right. This case differs information need not adjudicate that the from that of The King v. Murray, where information is true, or that notice was in the prisoner had received money from fact given; it is sufficient if it shews that an another clerk, on behalf of the master, that information has been exhibited, and that the he might employ it for a particular purpose. Justices proceeded to act upon it. That case was held not to be within the It is not necessary that the order should statute, because the master had possession specify the precise part of the road to the of the money by the hands of another clerk ; repair of which the portion of the rate is but in this case I quite adopt the expres- to be applied, the object of the statute being sions of the learned Recorder that the money to ascertain the amount of the fund necessary was in course of progress, or on its way to for the general repair of so much of the turnthe master. It appears that the course of pike road as is within the parish. business was this : that the money was
Where the order recited an applicaoriginally received by one servant, whose tion to the Justices to order a portion of duty it was to hand it to another, and that the rates "to be levied by virtue of the so it was handed from one to another until statutes in that case made and provided for it gradually reached the hands of the cashier. the repair of the highways within," fc. to The prisoner was one of those into whose be paid, 8c., and the order directed a certain hands it came in the course of transit; he sum to be paid “out of the rate which shall received and appropriated it to his own use; next be made for the repair of the highways and it seems to me that the conviction is within,” foc.,-Held, that the order must be right.
taken to refer to the application, and was, PATTESON, J.--I entirely concur. The therefore, warranted by the statute. case of The King v. Murray was quite dif- When such order is made on the surveyor ferent. The money there was delivered by of the highways of a. hamlet, it is to be the master through another person, to the considered as stated, by reasonable intendprisoner, who received it not on account of ment, that the hamlet is one maintaining its the master, but to pay to a third person. own highways. Here the money was received on the Master's The order need not set out the state of the account. The other point is quite clear. revenues of the trusts, or the length of the The Recorder is a Justice of the Peace vir. roads, or the other particulars into which tute officii.
Justices are to inquire by the statute. Judgment affirmed. Where an order recited that the sur
veyors of the highways appeared in pursuance of a notice from the clerk of the turn
pike trust given pursuant to the statute; and THE QUEEN V. PRESTON AND 1848.
there was an affidavit stating that, though June 17;
such notice was in fact given, the surveyors THE QUEEN 0. LONGBOTTOM July 12.
did not appear, but purposely absented themAND ANOTHER.
selves, there being no reason to suppose that Highway – Order of Magistrates under the order was intentionally false, and the 48. 5 Vict. c. 59.— Intendment of Facts to variance being immaterial to the validity of support Jurisdiction - Particularity- Affin the proceeding :—Held, that it was no objecdavit.
tion to the order.
Bliss had obtained a rule nisi for quashing vided in the said hamlet of Bradley, for the the following order of Magistrates which repair of the highways therein as to us shall had been returned in obedience to a writ of seem meet shall be paid by the surveyors of certiorari.
the highways of the said hamlet to the trus“ West Riding of Yorkshire, to wit.--At tees aforesaid, or to their treasurer at such a special session of the peace for the high- times as to us shall seem meet to be laid ways, holden at Huddersfield, in and for the out in the actual repair of so much of the upper division of Aggbrigg, in the West said turnpike road within the same hamlet Riding of the county of York, this 6th day as is now out of repair as aforesaid, in of October 1846, before William Walker pursuance of the statute in such case, Battye, Esq, and Thomas Starkye, Esq., &c., and now hereupon James Preston two of her Majesty's Justices of the Peace and James Oakes, the surveyors of the in and for the said riding, and acting in and highways of the said hamlet of Bradley, for the said upper division of Aggbrigg in appearing before iis in pursuance of the the riding and county aforesaid.
notice aforesaid, we, the said Justices, in “Whereas by a certain information and special sessions for the highways assembled complaint of George Higham, of the town- as aforesaid, having duly examined the state ship of Hipperholme-cum-Brighouse, in the of the revenues and debts of the said turnsaid West Riding of the county of York, pike trust, and inquired into the state and gentleman, now exhibited unto us, the Jus- condition of the repair of the roads within tices aforesaid, at these special sessions for the same, and having also ascertained the the highways within the said division, the length of the roads (including turnpike said George Higham informeth us that he roads) within the said hamlet of Bradley, is clerk to the trustees of a certain turnpike and how much of the same is turnpike road, trust, under trustees appointed in and by and it being proved to our satisfaction on a certain act of parliament, and made and oath that a certain part of the said turnpike passed in the 1 Vict., intituled' An act for road, situate within the said hamlet of more effectually repairing and maintaining Bradley, and within the said upper division the road from top of Odsall, near Bradford, of Aggbrigg, is out of repair; and that the through Wibsey Low Moor, to Huddersfield, funds of the said trust are insufficient for in the West Riding of the county of York,' the repairing of the same, and it appearing and that a certain portion of the said turn- to us, the said Justices, that it is necessary pike road situate in the hamlet of Bradley and expedient for the purposes of the porin the said riding, and within the said upper tion of the said turnpike road so out of division of Aggbrigg, is now out of repair, repair as aforesaid, that we should adjudge and that the funds of the said trust are in- and order that a certain portion, to wit, the sufficient for the repair of the same; and sum of 651. of the rate or assessment the said George Higham further informeth which shall next be made for the repair of us, the said Justices here assembled, that the highways in the said hamlet of Bradley twenty-one days, at least, before this 6th shall be paid by the surveyors of the highday of October, the said informant gave
due ways of the said hamlet of Bradley to the notice in writing to the surveyors of the said Justices, or to their treasurer. Now, highways of the said hamlet of Bradley, of we, the said Justices, duly considering the his, the said informant's, intention to exhibit matters aforesaid, do hereby adjudge and this said information to the Justices here to order the said James Preston and James be assembled at the present special sessions Oakes, surveyors of the highways of the for the highways, and the said informant said hamlet of Bradley, or whoever else may as clerk of the trust aforesaid now prayeth be surveyor of the said highways, to pay the consideration of us the said Justices unto the trustees of the said turnpike road, here in special sessions for the highways or unto Stansfield Rawson, Esq., their treaassembled in this behalf, and that we, surer, out of the rate or assessment which the said Justices, may adjudge and order shall next be made for the repair of the that such portion of the rates or assess- highways within the said hamlet of Bradley, ments levied or to be levied by virtue of the said sum of 651. by two equal payments, the statutes in such case made and pro- to wit, the sum of 321. 10s., parcel thereof, on the 1st day of November next, and the to exhibit to the Justices, at their next residue thereof on the 1st day of January special Sessions for the highways, to be next, to be by the said trustees wholly holden at Huddersfield, an information that expended and laid out in the repair of such the funds of the trust were insufficient part of the said turnpike road as is situate for the repair of the road; "but that they within the said hamlet and division afore- being advised that the notice was illegal said, and which is so out of repair as afore- and void did not, nor did any person on said. Given under our hands, &c., at the their behalf attend at the special Sessions.” special Sessions at Huddersfield aforesaid, Archbold appeared to shew cause against this 6th day of October, A.D. 1846." the rule, but the Court called onSigned, &c.
Bliss and Hall, in support of it.—First, It was sworn in the affidavits in support this order shews no jurisdiction. It should of the rule (amongst other things), that the either state that the parties appeared, or clerk of the trustees of the turnpike road, that a summons was duly issued and that on the 29th of September 1846, duly gave they did not appear. This order says they notice (1) to the defendants, that he intended did appear, but that is contradicted by the
affidavits. This contradiction it is compe(1) The notice was as follows:
tent to give-The Queen v. Bolton (2), The To the surveyors of the highways of the hamlet Queen v. the Justices of Cheshire (3), The of Bradley, in the township or parish of Hudders
Kiny v. Great Marlow (4), The King v. field, in the West Riding of the county of York.
“I, the undersigned, Geo. Higham, clerk of a certain turnpike trust, under a certain act of parlia- what part, nor that the road is within the division, ment passed, &c., do hereby in pursuance of an act nor for what purpose the portion of the assessment of parliament passed, &c. (4 & 5 Vict. c. 49,) is to be applied or to be paid to the trustees. intituled, &c., which said last-mentioned act has 2nd. That the order does not contain any adjudibeen continued by subsequent enactments, and is cation that the information is true, nor that the now in operation, give you notice that I intend at informant is the clerk or treasurer of the trustecs, the next special sessions for the highways, to be who only is by the act authorized to lay such holden, &c. within the said riding on &c., before information, nor that the surveyors had notice; and the Justices at such sessions assembled, to exhibit the statement of their appearance is contradicted by an information that the funds of the trust above their affidavits, which also shew the notice was bad. mentioned or referred to are insufficient for the 3rd. That the order does not state what part of repairs of the turnpike road belonging to such the road is out of repair, nor to the repair of what trustees within the said hamlet of Bradley, and part the money is to be applied. then and there to apply to such Justices to adjudge 4th. That the order directs the money to be and order a portion of the rate or assessment levied, paid out of the rate or assessment which shall next or to be levied, by virtue of the statute made, &c. be made for the repair of the highways, whereas (5 & 6 Will. 4. c. 50,) intituled, &c., to be paid by the act (4 & 5 Vict. c. 59.) limits such order to the you to the said commissioners or trustees of the rate or assessment levied or to be levied by virtue said turnpike trust, or to their treasurer or other of the statute 5 & 6 Will. 4. c. 50. officer appointed by them in that behalf.
5th. That the former act, 2 & 3 Vict. c. 81, being " And I do hereby further give you notice and limited to parishes, was by the act 3 & 4 Vict. c. 98. require you to produce at such sessions the last and 4 & 5 Vict. c. 59. extended “to every township." rale made for the repairs of the highways within &c., “hamlet or other place maintaining its own the said hamlet, and all books and accounts in highways, and to the highway rate levied within your possession or power, &c., in which any entries any such place, and to every turnpike road therein," are made relating to the repairs of the highways of and the order does not state Bradley to be a hamlet the said hamlet during the last eighteen months. maintaining its own highways. “ Dated the 9th of September 1846.
6th. That the order does not sufficiently shew the " Geo. Higham,
state of the revenues and debts of the trust, nor “ Clerk to the Trustees,” &c. the condition of its turnpike roads, nor ascertain The information purported to be laid before the the length of the roads within the hamlet, and that two Magistrates who made the order, on the 6th of the Justices being required by the act to inquire October 1846, at a special sessions for the highways into and ascertain these things before making the for the upper division of Aggbrigg, in the said riding, order, ought to shew upon that order the result of and was verbatim as recited in the order.
such examination and inquiry, otherwise they do The points in support of the rule for quashing not appear to have duly pursued and executed their the order were:
authority. 1st. That the notice served upon the surveyors of (2) 1 Q.B. Rep. 66; s. c. 10 Law J. Rep. (N.s.) the highways was not sufficient to give the Justices M.C. 49. jurisdiction to make the order under the statute (3) 8 Ad. & E. 398; s. c. 8 Law J. Rep. (N.s.) 4 & 5 Vict. c. 59, because that notice neither states M.C. 1. that any part of the road was out of repair, nor (4) 2 East, 244.