[PARKE, B.-We looked into the authorities, and found that in the old Entries the word was "feloniæ," and therefore we affirmed the judgment, but we did not intend to attack The King v. Powell.] It is, however, submitted that the verdict and judgment will be uncertain, for not shewing to which of the counts they refer. Supposing the first count shewed a perjury in Middlesex, and the second a perjury in Yorkshire, and this general verdict was returned, would the Court say that it was wrong? and yet that would follow if the words be nomina collectiva. PARKE, B.-I am of opinion that the judgment of the Court of Queen's Bench is correct. Even if the word "month" means lunar, and not calendar month, as that Court decided, the Judge had jurisdiction; for by rejecting the videlicets, the dates laid shew that more than a calendar month had elapsed. I do not, however, at all accede to the argument that it was necessary to shew that that period had elapsed; for I think that as a Judge of the superior court, my Brother Rolfe had general jurisdiction over the subject-matter; and unless it be shewn that he acted without jurisdiction, it will be presumed that he had jurisdiction in the particular case. As to the second objection, it was never intended in O'Connell's case, or in Campbell v. the Queen, to overrule The King v. Powell. Misdemeanour is quite general, it is misconduct. The judgment will therefore be affirmed. COLTMAN, J., ROLFE, B., CRESSWell, J., and WILLIAMS, J. concurred. Judgment affirmed. [CROWN CASE RESERVED.] 1849. Jan. 20. } THE QUEEN v. ALLEN.* Sodomy-Incapacity from Age. * The patient may be convicted of sodomy, although the agent is under fourteen years of age. Rolfe, B., at the December Sessions of the The prisoner, Henry Allen, was indicted for an unnatural crime. The first count charged that the said Henry Allen in and upon John Wood, feloniously did lay his hands, and then and there feloniously, wickedly, diabolically, and against the order of nature, had a venereal affair with the said John Wood, and him, the said John Wood, then and there feloniously, wickedly, diabolically, and against the order of nature, did carnally know, and then and there feloniously, wickedly, diabolically, and against the order of nature, with the said John Wood did commit and perpetrate the detestable, abominable and horrid crime of buggery. The second count charged that the prisoner wickedly, diabolically, and against the order of nature, &c. was consenting to and did permit and suffer the said John Wood feloniously, wickedly, diabolically, and against the order of nature, to have a venereal affair with him, the said Henry Allen, and then and there feloniously, wickedly, diabolically, and against the order of nature, to carnally know him, the said Henry Allen, and with him, the said Henry Allen, then and there feloniously, wickedly and diabolically, and against the order of nature, to commit and perpetrate the detestable, abominable and horrid crime of buggery, and that the said Henry Allen did then and there feloniously, wickedly, diabolically, and against the order of nature, commit and perpetrate, with the said John Wood, the detestable, abominable and horrid crime aforesaid, against the form &c. The facts proved were, that the prisoner induced John Wood, a boy of twelve years of age, to have carnal knowledge of his person, the prisoner being the patient in the crime. The jury found the prisoner guilty, but the learned Baron doubted whether the facts supported either count, for reasons which will be obvious, and reserved the case for the opinion of the Judges. No counsel appeared on either side. LORD DENMAN, C.J.-We have consi The following CASE was reserved by dered this case, and we are all of opinion that the conviction is good. Before Lord Denman, C.J., Parke, B., Alder son, B., Coleridge, J., and Coltman, J. Conviction affirmed. Where a conviction has been filed of record at the sessions in support of a commitment, a second conviction filed subsequently for the same offence is admissible in evidence in an action against the Magistrates, if nothing has taken place equivalent to quashing the first conviction. Where an act of parliament gives summary proceedings for various offences, a conviction, though formally drawn, will not support a commitment, if it leaves it uncertain under which section of the act the conviction actually took place. A. was on the 20th of February 1847 committed under 7 & 8 Geo. 4. c. 30, “for wilfully and maliciously destroying a quantity of fruit trees in a garden in her occupation, for which she had been convicted in 4l. 13s. 8d. for the said offence, and 8s. 6d. for costs." In March she was brought by habeas corpus before a Judge, who refused to discharge her, considering the commitment good. At the April Sessions, in support of such commitment, a conviction was entered and filed against A. (under section 24. of the above statute), which stated that she did, on &c., "wilfully and maliciously commit injury and spoil to certain real property, to wit, to certain apple trees, gooseberry trees, and other fruit trees then and there growing, the property of Sir H. B." (stating 4l. 13s. 8d. to be the amount of the damage). An action having been brought against the Magistrates who signed the commitment and conviction, a second and more formal conviction of the same date as the preceding conviction and commitment, and under the same section, was drawn up and filed at the Midsummer Sessions. This conviction also stated that A. did, on &c., “wilfully and maliciously commit damage, injury, and spoil to certain real property, to wit, twenty apple trees, twenty gooseberry trees, and twenty other fruit trees then and there growing, the property of Sir H. B." :-Held, that the defen NEW SERIES, XVIII.-MAG. CAS. dants, the Magistrates, were at liberty to give in evidence the second conviction, the former not having been quashed or pronounced invalid. But held, secondly, that, looking at both convictions, it was left quite uncertain whether they were for the same offence as that stated in the commitment, and that they therefore did not support it, and afforded no answer to the action. Held, also, that the commitment and both the convictions were defective for not shewing some specified amount of damage. The 24th section of the 7 & 8 Geo. 4. c. 30. is only applicable to cases in which the damage done is less than 1s. Trespass for assault and false imprison ment. Plea-Not guilty "by statute." At the trial, before Pollock, C.B., at the Summer Assizes, for Yorkshire, 1847, it appeared that the two defendants were Magistrates for that county. The plaintiff was and had been for some years tenant of Sir H. Boynton of a cottage and garden. In October 1846 Sir H. Boynton gave her a notice to quit on the 6th of April 1847, being the period of the commencement of her tenancy. Before she quitted, in February 1847, she cut down a quantity of fruit trees which were growing in the garden, some of which had been planted by herself or her husband, and some, as was alleged, had been growing on the premises before the tenancy commenced. It appeared that she had been cautioned not to cut them down. On the 20th of February she appeared, pursuant to a summons served on her, at the petty sessions, at Bridlington, to answer the charge of wilfully and maliciously cutting up and destroying certain fruit trees in a garden in her occupation on the 13th of February. She was convicted in 4l. 13s. 8d. for the damage, and 8s. 6d. costs, in default of payment to be committed for one calendar month to the house of correction. On her refusal to pay she was committed to the Beverley house of correction for one month. The following is a copy of the commit ment. East Riding of Yorkshire.-To all constables in the said riding, and especially to the constable of the township of Burton Agness in the said riding, and to the keeper L of the house of correction at Beverley, in the said riding. These are in Her Majesty's name to command you the said constable forthwith to convey and deliver into the custody of the said keeper the body of Nanny Charter, late of the parish of Burton Agness, charged before us, two of Her Majesty's Justices of the Peace for the said riding, upon the oath of Charles Boynton, Esq., for that she, the said Nanny Charter, did, in the parish of Burton Agness, in the said riding, wilfully and maliciously cut up and destroy a quantity of fruit trees in a garden in her occupation. And whereas the said Nanny Charter was this day convicted before us, the said Justices, in the said sum of 4l. 13s. 8d. for the said offence, and in the sum of 8s. 6d. for costs; and whereas the said Nanny Charter hath neglected and refused to pay the fine and costs; you, the said keeper, are hereby required to receive the said Nanny Charter into your said house of correction, and her safely there keep for the space of one calendar month, without hard labour, unless the said fine and costs be sooner paid and discharged, and for your so doing this shall be to you and every of you a sufficient warrant. Given under our hands and seals this 20th day of February in the year of our Lord 1847. Yarborough Greame (L.s.) Francis Simpson (L.S.) No formal conviction was drawn up at the time, but at the following Sessions a conviction was filed of which the following is a copy : East Riding of Yorkshire.-Be it remembered, that on the 20th day of February, in the year of our Lord 1847, at Bridlington, in the said riding, Nanny Charter is convicted before us, Yarborough Greame, Esq. and the Rev. Francis Simpson, clerk, two of her Majesty's Justices of the Peace for the said riding, for that she, the said Nanny Charter, on the 13th day of February inst., at Burton 'Agness, in the said riding, wilfully and maliciously did commit damage, injury, and spoil to certain real property, to wit, to certain apple trees, gooseberry trees, and other fruit trees then and there growing, the property of Sir Henry Boynton, Bart, against the form of the statute in such case made and provided, there being no remedy or punishment in the said statute provided for the offence of wilfully and maliciously committing the said damage, injury, and spoil. And we, the said Yarborough Greame and Francis Simpson, adjudge the said Nanny Charter for her said offence to forfeit and pay the sum of 41. 13s. 8d., which we hereby adjudge to be the amount of the injury done to the said Sir Henry Boynton, Bart., and to be a reasonable compensation to the said Sir Henry Boynton, Bart, for the damage, injury, and spoil so committed as aforesaid, and also to pay the sum of 8s. 6d. for costs, and in default of immediate payment of the said sums to be imprisoned in the house of correction at Beverley, in the said riding, for the space of one calendar month, without hard labour, unless the said sums shall be sooner paid; and we direct that the said sum of 4l. 13s. 8d. shall be paid to the said Sir Henry Boynton, Bart., the said Sir Henry Boynton not having been examined in proof of the offence; and we order that the sum of 8s. 6d. for costs shall be paid to Charles Boynton, the complainant. Given under our hands and seals the day and year above mentioned. Signed, &c. The defendants having been, on the 27th of March, served with a notice of action, this action was brought, and subsequently the following conviction was drawn up and filed at the Midsummer Sessions : East Riding of Yorkshire (to wit).—Be it remembered, that on the 20th day of February, A.D. 1847, at Bridlington, in the said riding, Nanny Charter is convicted. before us, Yarborough Greame, Esq. and the Rev. Francis Simpson, clerk, two of her Majesty's Justices of the Peace for the said riding, for that the said Nanny Charter, on the 13th day of February inst., at Burton Agness, in the said riding, wilfully and maliciously did commit damage, injury, and spoil to certain real property, to wit, to twenty apple trees, twenty gooseberry trees, and twenty other fruit trees then and there growing, the property of Sir Henry Boynton, Bart., against the form of the statute, and there being no remedy or punishment in the said statute before provided, that is to say, no remedy or punishment in the said statute provided than the remedy and punishment hereinafter adjudged and specified for the said offence, and the said Nanny Charter not having committed the said damage, injury, or spoil, under a fair and reasonable supposition that she, the said Nanny Charter, had a right to do the same, and the said damage, injury, and spoil not having been committed by the said Nanny Charter in hunting, fishing, or in the pursuit of game. And we, the said Yarborough Greame and Francis Simpson, adjudge the said Nanny Charter for her said offence to forfeit and pay the sum of 4l. 13s. 8d., which we hereby adjudge to be a reasonable compensation to the said Sir Henry Boynton, Bart., for the damage, injury, and spoil so committed as aforesaid, and also to pay the sum of 8s. 6d. for costs, and in default of immediate payment of the said sums to be imprisoned in the house of correction at Beverley, in the said riding, for the space of one calendar month, without hard labour, unless the said sums shall be sooner paid, and we direct that the said sum of 4l. 13s. 8d. shall be paid to the said Sir Henry Boynton, Bart., the said Sir Henry Boynton, Bart. not having been examined in proof of the said offence; and we order that the said sum of 8s. 6d. for costs shall be paid to Charles Boynton, the complainant. Given under our hands and seals the day and year above mentioned. Signed, &c. It further appeared that on the 18th of March during the Spring Assizes the plaintiff was brought by habeas before Rolfe, B., in order that she might be discharged on the ground of the insufficiency of the commitment. The learned Judge, after hearing counsel on both sides, held that the commitment was good, and made an order for her remand. At the trial the second conviction was first put in and the Judge's order was put in on behalf of the defendants. It was objected that the second conviction was not admissible, after the first had been filed at the Sessions-Chaney v. Payne (1), and also on the ground that it was not on parchment. The learned Judge held both the convictions admissible. It was then objected that the conviction did not support the commitment, as the commitment did not state damage to any one; and the statute 7 & 8 Geo. 4. (1) 1 Q.B. Rep. 712; s. c. 10 Law J. Rep. (N.S.) M.C. 114. c. 30. ss. 21, 22. did not apply to cases in which the property was in the occupation of the party doing damage. The learned Judge thought that Chaney v. Payne did not apply, and that the first conviction was good, and also that the second was a good conviction, and the jury under his direction returned a verdict for the defendants (2). (2) The following sections of the 7 & 8 Geo. 4. c. 30. are important to this case : Section 19. provides "that if any person shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy the whole or any part of any tree, sapling or shrub, or any underwood respectively growing in any park, pleasure-ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwelling-house, every such offender (in case the injury done shall exceed the sum of 11.) shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years; and if any person shall unlawfully, &c. [as before] any trees, &c. growing elsewhere than in the situations hereinbefore mentioned, every such offender (in case the amount of the injury done shall exceed the sum of 51.) shall be guilty of felony, and being convicted thereof shall be liable to any of the punishments which the Court may award for the felony herein before last mentioned." By sect. 20. "If any person shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood, wheresoever the same may be respectively growing, the injury done being to the amount of 1s. at the least, every such offender, being convicted before a Justice of the Peace, shall for the first offence forfeit and pay over and above the amount of the injury done such sum of money not exceeding 51. as to the Justice shall seem meet." Sect. 21. provides "that if any person shall unlawfully and maliciously destroy or damage with intent to destroy any plant, root, fruit, or vegetable production growing in any garden, orchard, &c., every such offender, being convicted thereof before a Justice of the Peace, shall at the discretion of such Justice either be committed to the common gaol or house of correction there to be imprisoned only, or to be imprisoned and kept to hard labour for any term not exceeding six calendar months, or else shall forfeit and pay over and above the amount of the injury done such sum of money not exceeding 201. as to the Justice shall seem meet." Sect. 24. provides "that if any person shall wilfully commit any damage, injury, or spoil to or upon any real or personal property whatever, either of a public or private nature, for which no remedy or punishment is hereinbefore provided, every such person being convicted thereof before a Justice of the Peace shall forfeit and pay such sum of money as shall appear to the Justice to be a reasonable compensation for the damage, injury and spoil so committed, not exceeding the sum of 51.......and Martin and Otter shewed cause (3). First, it is no objection that the conviction was not on parchment. It is not a record in the sense in which that word is used. In Co. Litt. 260, a, a record is defined to be "a memorial or remembrance on rolls of parchment," and he proceeds to say, "of the proceedings or acts of a court of justice which has power to hold plea of real or mixed actions." The more important records of Sessions, such as indictments, verdicts, &c. are not necessarily on parchmentDickins on Sess. Prac. 564. If it were necessary to record the proceedings on parchment, it might be done now or at any time. Secondly, the direction of the learned Judge was right. There were two convictions. Chaney v. Payne is, if applicable at all, in if such sum of money, together with the costs (if ordered), shall not be paid either immediately after the conviction, or within such period as the Justice shall at the time of conviction appoint, the Justice may commit the offender to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour as the Justice shall think fit, for any term not exceeding two calendar months, unless such sum and costs be sooner paid. Provided always, that nothing herein contained shall extend to any case where the party trespassing acted under a fair and reasonable supposition that he had a right to do the act complained of, nor to any trespass not being wilful and malicious committed in hunting, fishing," &c. Sect. 37. provides a general form of conviction, with directions to specify the offence and the penalty actually imposed, or the penalty and amount of injury done, as the case may be, &c. Sect. 39. takes away the certiorari and provides that no warrant of commitment shall be held void by reason of any defect therein, provided that it be therein alleged that the party has been convicted, and there be a good and valid conviction to sustain the same. Sect. 40. "That every Justice of the Peace before whom any person shall be convicted of any offence against this act, shall transmit the conviction to the next Court of General or Quarter Sessions which shall be holden for the county or place wherein the offence shall have been committed, there to be kept by the proper officer among the records of the Court; and upon any indictment or information against any person for a subsequent offence, a copy of such conviction, certified by the proper officer of the Court, or proved to be a true copy, shall be sufficient evidence to prove a conviction for the former offence." (3) May 15, before Lord Denman, C.J., Patteson, J., Wightman, J. and Erle, J. favour of the defendants. The circumstance which rendered the second conviction inadmissible there was, that the first as recited in the commitment had been held bad after it had been returned to the Sessions. Here the first conviction is good. In Sellwood v. Mount (4), and in Mason v. Carpenter (5) it was held at Nisi Prius that a second conviction was admissible after a former one had been returned to the Sessions. It is enough to shew one good conviction in answer to an action of trespass-Gray v. Cookson (6), or on return to a certiorari-The King v. Allen (7). So also in the case of an order in bastardy-Wilkins v. Hemsworth (8). Even if the learned Judge was wrong in admitting the second conviction, it is clear that the first conviction was an answer to the action. [WIGHTMAN, J.-Is not the conviction for one offence, and the commitment for another?] The commitment is for "wilfully and maliciously" destroying fruit trees. This cannot be under the 19th section, which makes it felony unlawfully and maliciously" to cut, break, &c. any tree growing in any garden, &c.; and the 20th section gives a summary conviction for the like offence, wherever the trees, &c. may be growing, if the injury amounts to 1s.-See The Queen v. Dodson (9). The commitment also states the garden to be in the occupation of the offender. In Daniell v. Phillips (10) the commitment was for an offence not known to the law; but section 39. was held to cure the defect. In Rogers v. Jones (11) the conviction and commitment were for distinct offences founded on different acts of parliament. The commitment and conviction are substantially for the same offence; and it was not necessary to negative the proviso in section 24, as to the reasonable supposition of right. Thibault v. Gib |