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Brampton was then called, who was also present at the conversation, and she swore that Mr. Gilby told the prisoner, in the presence of the mistress and her husband, that it would be better for her to speak the truth; she could not tell whether he told her so before he asked her what she had done, but it was before she answered. His Lordship then recalled Mr. Gilby, and in answer to his questions, he said, "I could not positively swear that I did not tell the prisoner that it would be better for her to tell the truth. I do not recollect that I did. I cannot say positively what was the first thing I said to her, I believe I asked her what she had put into the milk. It is very likely I might tell her it would be better for her to tell the truth. Smith (the husband) with his wife, the mistress, were both present, and heard what I said." Smith, who had been examined as a witness, could not recollect what was said.

The counsel for the prisoner contended that the learned Judge ought to strike the confession out of his notes, and not submit it to the jury. The following cases were cited -The King v. Spencer (2), The Queen v. Taylor (3), The Queen v. Laugher (4). After consulting with Lord Denman, his Lordship declined to strike out the evidence of the confession, and put the whole to the jury, feeling that it was impossible, after they had heard the confession, to expect that they could weigh and consider the other facts in the case without reference to the confession, and in truth those other facts by themselves would not have warranted a conviction. The deposition of the mistress, which had been 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 dropsy, was then read, detailing the same conversation between Mr. Gilby and the prisoner, but not stating anything with regard to the use of threats or promises.

The jury found the prisoner guilty; and the learned Judge requested the opinion of the Judges whether he was right in the course he adopted.

Flowers, for the prisoner (5).-The con

(2) 7 Car. & P. 776. (3) 8 Ibid. 733.

(4) 2 Car. & K. 225.

(5) No counsel appeared in support of the conviction.

fession was inadmissible by reason of the inducement, as was decided in The Queen v. Laugher.

[POLLOCK, C.B.-In that case the point was, whether, the words having been spoken in the presence of the constable, there was an inducement by a person of competent authority.]

It was therefore admitted that the words themselves were sufficient inducement.

[MAULE, J.-The words have been over and over again held to exclude confessions.]

[ERLE, J.-Some of the Judges have thought, and as it appears to me correctly, that an exhortation to tell the truth is not an inducement to confess. It is a question for the Judge at the trial to determine whether the words amounted to an inducement or not.]

[PATTESON, J.-In The King v. Kingston (6), the words were spoken by a surgeon, and the evidence was excluded.]

The words in this case were, therefore, spoken by a competent person.

[PATTESON, J.-If the whole of the evidence had come out upon the first examination of the witness Gilby, I should certainly have rejected the confession; but the doubt I had was, whether as the affirmative was on the prisoner I could exclude the evidence. If I had felt myself at liberty to do so, I should have excluded it.]

(He was then stopped by the Court.)

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to another servant (the cashier) of his master; but instead of handing it over, he fraudulently retained it:-Held, that this was embezzlement.

Semble-the recorder of a borough has power to reserve questions of law under the 11 & 12 Vict. c. 78.

The prisoner was convicted at the Michaelmas Quarter Sessions for the borough of Birmingham; and the following case was submitted by the Recorder :

The Recorder of Birmingham respectfully submits for the consideration of the learned Judges two questions of law: first, whether, under the 11 & 12 Vict. c. 78. ss. 1, 2, questions of law may be reserved by Recorders; secondly, whether the conviction of Orlando Masters was a good conviction. As to the first question, the power to reserve is not in express terms given to Recorders; and it may be contended that the Courts of Quarter Sessions mentioned in the act are Courts composed of Justices of the Peace. On the other hand, it may be inferred that the first section, when enumerating the Courts to which the power is given uses the word "any," which would seem to override the whole class enumerated; and, consequently, apply to Courts of Quarter Sessions; and that the second section enacts, that the Court of Quarter Sessions shall state the case. In boroughs this Court consists of the Recorder sitting as the sole Judge under 5 & 6 Will. 4. c. 76. s. 105. He is, moreover, ex officio, a Justice of the Peace,-s. 103. It would thus appear that borough sessions are within the words of the act; and the absence of any express distinction between county sessions and borough sessions might be urged, to shew that no such distinction was intended. Indeed it would be difficult, if not impossible, to find any motive for withholding a power from recorders' courts, which is thought necessary to the due administration of justice in courts exercising a similar jurisdiction (1). As to the second question, the case is as follows:-Orlando Masters, a clerk in the employment of William Holliday, was tried, at the last Michaelmas Quarter Sessions for the borough of Birmingham, on an indictment, charging him

(1) This point was raised by the learned Recorder himself, no objection having been made at the trial.

with embezzling three sums of money received by him for and on account of his master, the prosecutor. It appeared in evidence that the course of business adopted by the house was for the customers to pay monies into the hands of certain persons who paid them over to a superintendent; and he accounted with the prisoner, and paid over such monies to him; and the prisoner in his turn accounted with cashiers, and paid over the monies to them, he having no other duty to perform with respect to such monies than to keep an account which might act as a check on the superintendent and the cashiers, their accounts being in like manner checks upon him. These four parties to the receipt of the monies are all servants of the prosecutor. With respect to the three sums in question it was proved that they passed in due course from the customers through the hands of the immediate receivers and the superintendent to the prisoner, who wilfully and fraudulently retained them. On behalf of the prisoner, it was objected, on the authority of The King v. Murray (2), that the monies having, before they reached the prisoner, been in the possession of the prosecutor's servants, did in law pass to the prisoner from his master; and that, consequently, the charge of embezzlement could not be sustained. For the Crown it was answered, that the prisoner having interrupted the monies in their appointed course of progress to the master, this case was not governed by that of The King v. Murray, where the prior possession of the master having been as complete as it was intended to be, the money might reasonably be considered as passing from the master to the prisoner; whereas, in the present case, it was in course of passage through the hands of the prisoner to the master. The Recorder left the case to the jury, reserving the points. The prisoner was convicted and sentenced to twelve months' imprisonment, with hard labour.

Miller (Mellor with him), in support of the conviction (3).—The objection to the power of the Recorder was not taken at the trial; but, if necessary, it will be argued that there is no such power. The Court is

(2) 1 Moo. C.C. 276; s. c. 5 Car. & P. 145, n. (3) Before Pollock, C. B., Patteson, J., Maule, J., Cresswell, J. and Erle, J. No one appeared for the prisoner.

described in the act as the Justices, in the plural.

[POLLOCK, C.B.-If the conviction be right, the other question need not be argued.] The conviction was right. The distinction between this case and that of The King v. Murray is pointed out in the case submitted. (He was then stopped by the Court.)

POLLOCK, C.B.-We are all agreed that the conviction is right. This case differs from that of The King v. Murray, where the prisoner had received money from another clerk, on behalf of the master, that he might employ it for a particular purpose. That case was held not to be within the statute, because the master had possession of the money by the hands of another clerk; but in this case I quite adopt the expressions of the learned Recorder that the money was in course of progress, or on its way to the master. It appears that the course of business was this: that the money was originally received by one servant, whose duty it was to hand it to another, and that so it was handed from one to another until it gradually reached the hands of the cashier. The prisoner was one of those into whose hands it came in the course of transit; he received and appropriated it to his own use; and it seems to me that the conviction is right.

PATTESON, J.-I entirely concur. The case of The King v. Murray was quite different. The money there was delivered by the master through another person, to the prisoner, who received it not on account of the master, but to pay to a third person. Here the money was received on the Master's account. The other point is quite clear. The Recorder is a Justice of the Peace virtute officii.

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The notice of an intended information before a special Sessions, for the purpose of obtaining an order for payment of a portion of a highway rate to the trustees of a turnpike road, under the 4 & 5 Vict. c. 59, need not state what portion of the road is out of repair, or to what purpose the money is to be applied, or that the road is within the division for which the Sessions are held.

The order made in pursuance of such information need not adjudicate that the information is true, or that notice was in fact given; it is sufficient if it shews that an information has been exhibited, and that the Justices proceeded to act upon it.

It is not necessary that the order should specify the precise part of the road to the repair of which the portion of the rate is to be applied, the object of the statute being to ascertain the amount of the fund necessary for the general repair of so much of the turnpike road as is within the parish.

Where the order recited an application to the Justices to order a portion of the rates "to be levied by virtue of the statutes in that case made and provided for the repair of the highways within," &c. to be paid, &c., and the order directed a certain sum to be paid "out of the rate which shall next be made for the repair of the highways within," &c.,-Held, that the order must be taken to refer to the application, and was, therefore, warranted by the statute.

When such order is made on the surveyor of the highways of a hamlet, it is to be considered as stated, by reasonable intendment, that the hamlet is one maintaining its own highways.

The order need not set out the state of the revenues of the trusts, or the length of the roads, or the other particulars into which Justices are to inquire by the statute.

Where an order recited that the surveyors of the highways appeared in pursuance of a notice from the clerk of the turnpike trust given pursuant to the statute; and there was an affidavit stating that, though such notice was in fact given, the surveyors did not appear, but purposely absented themselves, there being no reason to suppose that the order was intentionally false, and the variance being immaterial to the validity of the proceeding :-Held, that it was no objection to the order.

Bliss had obtained a rule nisi for quashing the following order of Magistrates which had been returned in obedience to a writ of certiorari.

"West Riding of Yorkshire, to wit.—At a special session of the peace for the highways, holden at Huddersfield, in and for the upper division of Aggbrigg, in the West Riding of the county of York, this 6th day of October 1846, before William Walker Battye, Esq, and Thomas Starkye, Esq., two of her Majesty's Justices of the Peace in and for the said riding, and acting in and for the said upper division of Aggbrigg in the riding and county aforesaid.

"Whereas by a certain information and complaint of George Higham, of the township of Hipperholme-cum-Brighouse, in the said West Riding of the county of York, gentleman, now exhibited unto us, the Justices aforesaid, at these special sessions for the highways within the said division, the said George Higham informeth us that he is clerk to the trustees of a certain turnpike trust, under trustees appointed in and by a certain act of parliament, and made and passed in the 1 Vict., intituled An act for more effectually repairing and maintaining the road from top of Odsall, near Bradford, through Wibsey Low Moor, to Huddersfield, in the West Riding of the county of York,' and that a certain portion of the said turnpike road situate in the hamlet of Bradley in the said riding, and within the said upper division of Aggbrigg, is now out of repair, and that the funds of the said trust are insufficient for the repair of the same; and the said George Higham further informeth us, the said Justices here assembled, that twenty-one days, at least, before this 6th day of October, the said informant gave due notice in writing to the surveyors of the highways of the said hamlet of Bradley, of his, the said informant's, intention to exhibit this said information to the Justices here to be assembled at the present special sessions for the highways, and the said informant as clerk of the trust aforesaid now prayeth the consideration of us the said Justices here in special sessions for the highways. assembled in this behalf, and that we, the said Justices, may adjudge and order that such portion of the rates or assessments levied or to be levied by virtue of the statutes in such case made and pro

vided in the said hamlet of Bradley, for the repair of the highways therein as to us shall seem meet shall be paid by the surveyors of the highways of the said hamlet to the trustees aforesaid, or to their treasurer at such times as to us shall seem meet to be laid out in the actual repair of so much of the said turnpike road within the same hamlet as is now out of repair as aforesaid, in pursuance of the statute in such case, &c., and now hereupon James Preston and James Oakes, the surveyors of the highways of the said hamlet of Bradley, appearing before us in pursuance of the notice aforesaid, we, the said Justices, in special sessions for the highways assembled as aforesaid, having duly examined the state of the revenues and debts of the said turnpike trust, and inquired into the state and condition of the repair of the roads within the same, and having also ascertained the length of the roads (including turnpike roads) within the said hamlet of Bradley, and how much of the same is turnpike road, and it being proved to our satisfaction on oath that a certain part of the said turnpike road, situate within the said hamlet of Bradley, and within the said upper division of Aggbrigg, is out of repair; and that the funds of the said trust are insufficient for the repairing of the same, and it appearing to us, the said Justices, that it is necessary and expedient for the purposes of the portion of the said turnpike road so out of repair as aforesaid, that we should adjudge and order that a certain portion, to wit, the sum of 651. of the rate or assessment which shall next be made for the repair of the highways in the said hamlet of Bradley shall be paid by the surveyors of the highways of the said hamlet of Bradley to the said Justices, or to their treasurer. we, the said Justices, duly considering the matters aforesaid, do hereby adjudge and order the said James Preston and James Oakes, surveyors of the highways of the said hamlet of Bradley, or whoever else may be surveyor of the said highways, to pay unto the trustees of the said turnpike road, or unto Stansfield Rawson, Esq., their treasurer, out of the rate or assessment which shall next be made for the repair of the highways within the said hamlet of Bradley, the said sum of 651. by two equal payments, to wit, the sum of 32l. 10s., parcel thereof,

Now,

on the 1st day of November next, and the residue thereof on the 1st day of January next, to be by the said trustees wholly expended and laid out in the repair of such part of the said turnpike road as is situate within the said hamlet and division aforesaid, and which is so out of repair as aforesaid. Given under our hands, &c., at the special Sessions at Huddersfield aforesaid, this 6th day of October, A.D. 1846."

Signed, &c.

It was sworn in the affidavits in support of the rule (amongst other things), that the clerk of the trustees of the turnpike road, on the 29th of September 1846, duly gave notice (1) to the defendants, that he intended

(1) The notice was as follows:

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To the surveyors of the highways of the hamlet of Bradley, in the township or parish of Huddersfield, 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 parliament passed, &c., do hereby in pursuance of an act of parliament passed, &c. (4 & 5 Vict. c. 49,) intituled, &c., which said last-mentioned act has been continued by subsequent enactments, and is now in operation, give you notice that I intend at the next special sessions for the highways, to be holden, &c. within the said riding on &c., before the Justices at such sessions assembled, to exhibit an information that the funds of the trust above mentioned or referred to are insufficient for the repairs of the turnpike road belonging to such trustees within the said hamlet of Bradley, and then and there to apply to such Justices to adjudge and order a portion of the rate or assessment levied, or to be levied, by virtue of the statute made, &c. (5 & 6 Will. 4. c. 50,) intituled, &c., to be paid by you to the said commissioners or trustees of the said turnpike trust, or to their treasurer or other officer appointed by them in that behalf.

"And I do hereby further give you notice and require you to produce at such sessions the last rate made for the repairs of the highways within the said hamlet, and all books and accounts in your possession or power, &c., in which any entries are made relating to the repairs of the highways of the said hamlet during the last eighteen months. "Dated the 9th of September 1846.

"Geo. Higham,

"Clerk to the Trustees," &c. The information purported to be laid before the two Magistrates who made the order, on the 6th of October 1846, at a special sessions for the highways for the upper division of Aggbrigg, in the said riding, and was verbatim as recited in the order.

The points in support of the rule for quashing the order were:

1st. That the notice served upon the surveyors of the highways was not sufficient to give the Justices jurisdiction to make the order under the statute 4 & 5 Vict. c. 59, because that notice neither states that any part of the road was out of repair, nor

to exhibit to the Justices, at their next special Sessions for the highways, to be holden at Huddersfield, an information that the funds of the trust were insufficient for the repair of the road; "but that they being advised that the notice was illegal and void did not, nor did any person on their behalf attend at the special Sessions." Archbold appeared to shew cause against the rule, but the Court called on

Bliss and Hall, in support of it.-First, this order shews no jurisdiction. It should either state that the parties appeared, or that a summons was duly issued and that they did not appear. This order says they did appear, but that is contradicted by the affidavits. This contradiction it is competent to give-The Queen v. Bolton (2), The Queen v. the Justices of Cheshire (3), The King v. Great Marlow (4), The King v.

what part, nor that the road is within the division, nor for what purpose the portion of the assessment is to be applied or to be paid to the trustees.

2nd. That the order does not contain any adjudication that the information is true, nor that the informant is the clerk or treasurer of the trustees, who only is by the act authorized to lay such information, nor that the surveyors had notice; and the statement of their appearance is contradicted by their affidavits, which also shew the notice was bad.

3rd. That the order does not state what part of the road is out of repair, nor to the repair of what part the money is to be applied.

4th. That the order directs the money to be paid out of the rate or assessment which shall next be made for the repair of the highways, whereas the act (4 & 5 Vict. c. 59.) limits such order to the rate or assessment levied or to be levied by virtue of the statute 5 & 6 Will. 4. c. 50.

5th. That the former act, 2 & 3 Vict. c. 81, being limited to parishes, was by the act 3 & 4 Vict. c. 98. and 4 & 5 Vict. c. 59. extended "to every township," &c., "hamlet or other place maintaining its own highways, and to the highway rate levied within any such place, and to every turnpike road therein," and the order does not state Bradley to be a hamlet maintaining its own highways.

6th. That the order does not sufficiently shew the state of the revenues and debts of the trust, nor the condition of its turnpike roads, nor ascertain the length of the roads within the hamlet, and that the Justices being required by the act to inquire into and ascertain these things before making the order, ought to shew upon that order the result of such examination and inquiry, otherwise they do not appear to have duly pursued and executed their authority.

(2) 1 Q.B. Rep. 66; s. c. 10 Law J. Rep. (N.s.)

M.C. 49.

(3) 8 Ad. & E. 398; s. c. 8 Law J. Rep. (N.s.) M.C. 1.

(4) 2 East, 244.

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