SHERIFF.

See PERJURY, 1, 9.-WITNESS, 3.

1. In an action by a sheriff for his poundage, proof that he has acted as sheriff is sufficient evidence of his being so, without proof of his appointment. Bunbury v. Matthews, 380

2. In an action for sheriff's poundage, the sheriff's officer produced the sheriff's warrant under which he had acted, which concluded, "given under the seal of my office." The only seal to it was a small piece of blue paper wafered to it, and stamped with a

he did not know this to be the seal of the sheriff, or of his office, but stated that he had received the warrant from Mr. B., who had acted as the plaintiff's under-sheriff, and that it was precisely similar to all the other warrants on which he had acted:-Held, sufficient proof of the seal.

Ibid.

3. Semble, that the stat. 5 & 6 Vict. c. 98, which provides, that, after the 1st of March, 1843, sheriff's poundage shall not be "payable" writs of ca. sa., does not apply to cases where the party has been taken on the ca. sa. before that day; but if it does, a defendant, in an action for sheriff's poundage, cannot take advantage of that defence on the plea of nunquam indebitatus, but must plead it specially.

SHERIFF'S ASSESSOR. See PERJURY, 9.

SHIPPING.

Ibid.

See CHARTERPARTY.-LEAVING A SEAMAN ASHORE.-MUTINY.

In an action against the owner of a ship, to recover money advanced to the captain for the use of the ship whilst in a home port:-Held, that the only question for the jury was,

2. If on the trial of an indictment for feloniously attempting to discharge a loaded pistol at another, by drawing the trigger, the jury think that the pistol was not so primed and loaded that it could go off, they should acquit the prisoner, and ought not to find him guilty of an assault under the 11th section of the stat. 7 Will. 4 & 1 Vict. c. 85. Ibid.

3. A rifle which is loaded, but which for want of proper priming will not go off, is not a "loaded arm" within the stat. 1 Vict. c. 85, s. 3; and the pointing a rifle thus circumstanced at a person, and pulling the trigger of it, whereby the cock and hammer were thrown, and the pan opened, will not warrant a conviction either of felony under the 3rd section, or of assault under the 11th section, of the stat. 1 Vict. c. 85. James,

SHOP.

Reg. v. 530

See BREAKING INTO A SHOP.

PROSECUTION (GOVERN

MENT).

See REPLY.

PUIS DURREIN CONTINUANCE.

See PLEADING, 2.

PUPIL AND ASSISTANT.

1. A person has a right to dismiss a servant for misconduct, but has no right to turn away an apprentice because he misbehaves; but the case of a young man seventeen years old, who, under a written agreement not under seal, is placed with a surgeon, as "pupil and assistant," and with whom a premium is paid, is a case between that of apprenticeship and service; and if such a person on some occasions come home intoxicated, this alone will not justify the surgeon in dismissing him. But if the pupil and assistant, by employing the shop-boy to compound the medicines, occasion real danger to the surgeon's practice, this would justify the surgeon in dismissing him. Wise v. Wilson, 662 2. Form of plea. Ibid.

2. A railway act imposed a penalty on the company for the interruption of any road, and, in the case of a private road, made the penalty "payable to the owner thereof:"-Held, that the tenant of the farm over which the road passed could not sue for the penalty. The same act enacted, that any penalty imposed thereby, the recovery of which was not otherwise provided for, might be recovered by summary proceeding, upon complaint before two or more justices:-Held, that this did not bar the party entitled from his remedy by action at law. Collinson v. Newcastle and Darlington Railway Company, 546

RAPE.

See ABUSING FEMALE CHILDREN. -ASSAULT, 7.

1. If, on the trial of an indictment for carnally knowing and abusing a female child under ten years old, the jury are satisfied, that, at any time, any part of the virile member of the prisoner was within the labia of the pudendum of the child, no matter how little, this is sufficient to constitute a penetration, and the jury ought to convict the prisoner of the complete offence. Reg. v. Lines,

393

2. On the trial of an indictment for rape, the prosecutrix, a servant, stated that she made almost immediate complaint to her mistress, and that on the next day a washerwoman washed her clothes, on which were blood. Neither the mistress nor the washerwoman were under recognizance to give evidence, nor were their names on the back of the indictment, but they were at the assizes attending as witnesses for the prisoner. The judge directed that both the mistress and the washerwoman should be called by the counsel for the prosecution, but said that he should allow the counsel for the prosecution every lati

Mr. A., the plaintiff's attorney, wrote to the defendant, stating that a debt due from the defendant to the plaintiff "must be paid to me" on the next day.-A tender was made on the next day to a writing clerk of Mr. A., in Mr. A.'s office, who said that he could not take the money, as Mr. A. was out, and the person must wait till he came:-Held, not a good tender, as not being made to a person authorized to receive money; but that, if Mr. A.'s letter had asked payment "at my office," a tender to any person in the office who was carrying on the business there would have been sufficient. Watson v. Hetherington, 36.

THEATRE.

See LANDLORD AND TENANT, 1.

1. The public, who go to a theatre, have a right to express their free and unbiassed opinions of the merits of the performers who appear upon the stage; but parties have no right to go to a theatre, by a preconcerted plan to make such a noise that an actor, without any judgment being formed of his performance, should be driven from the stage; and if two persons are shewn to have laid a preconcerted plan to deprive a person who comes out as an actor of the benefits which he expected to result from his appearance on the stage, they are liable in an action for a conspiracy. Gregory v. Duke of Brunswick,

24

2. In an action for a conspiracy to hiss an actor, the defendants cannot, under the general issue, give in evidence libels published by the plaintiff, with a view of shewing that the

plaintiff was hissed on account of those libels, and not by reason of any conspiracy of the defendants. Ibid.

THREATENING LETTER.

any

reason

1. The words "without able and probable cause," in the stat. 7 & 8 Geo. 4, c. 29, s. 8, concerning sending threatening letters, &c., apply to the money demanded, and not to the accusation threatened to be made. Reg. v. Hamilton, 212

2. A. wrote a threatening letter addressed to Sir J. R., threatening to burn the house, &c. of Mr. B., a tenant of Sir J. R. A. left the letter, which was sealed, at a gate in a road near Sir J. R.'s house, where it was found and taken to the steward's room at Sir J. R.'s, where it was opened and read by the steward, and by him given to E., a constable, by whom it was afterwards shewn to Sir J. R. and to Mr. B.:-Held, that if, in thus leaving the letter, the prisoner intended the letter should not only reach Sir J. R., but also reach Mr. B., this was a "sending" of the letter to Mr. B., within the stat. 4 Geo. 4, c. 54, s. 3. Reg. v. Grimwade, 592

TRADE (CUSTOM OF). See CHARTERPARTY, 2, 3.-CUSTOM OF TRADE.

TRAVERSE.

1. A. was indicted for speaking seditious words. He had been committed more than twenty days before, for having unlawfully caused a great number of persons unlawfully to assemble to disturb the peace, and having with those persons assembled and met together for the purpose aforesaid, to the terror of her Majesty's subjects: -Held, that A. was entitled to traverse, as the indictment

was not for the same offence as that for which he had been committed, although both the indictment and the commitment related to the same transaction. Reg. v. O'Neill, 138

2. The 5th sect. of the 60 Geo. 3 & 1 Geo. 4, c. 4, relating to the trial of misdemeanours, does not require a formal notice to be given by the prosecutor to the defendant, but is intended to prevent his being taken by surprise. Therefore, if it come to the defendant's knowledge twenty days before the next session that the indictment had been found against him at the last session, he is bound to plead and try. Reg. v. Gregory, 208

3. An indictment had been found at the assizes in 1840 against A., the clerk of the course at Ascot, for a misdemeanour, in keeping a gamingbooth there. In 1844 he was taken on a judge's warrant, founded on that indictment, and gave bail to appear at the next assizes, and there plead to the indictment and take his trial. He appeared at the next assizes, and it was shewn by affidavit, that the prosecutor could not be found, so as to be served with notice of trial: -Held, that the defendant could not be acquitted, as no notice of trial had been given; but, on the defendant surrendering to the governor of the prison immediately before the end of the assizes, the judge directed the prosecutor and witnesses to be called three times; and they not answering, the judge ordered, that the defendant should be discharged by proclamation, and that he should not be called upon to enter into any fresh recogniReg. v. Hibberd, 461

zance.

4. A. being indicted for perjury at the spring assizes, 1843, at those assizes, entered into recognizances to try at the summer assizes, 1844, but it being discovered before that time that the indictment was defective, another indictment was prepared and

1. A. directed a police officer to take B. into custody on a charge of embezzlement, and the officer having done so, the officer and A. went together to a box of B., and the officer, in the presence of A., searched the box, and took from it a sovereign:-Held, that, in an action by B. against A. for the trespass in opening of the box and taking the sovereign, proof of these facts was evidence to go to the jury of A.'s participation in the trespass. Jones v. Morrell, 266

2. A. went to the house of B., and with a hatchet broke open two doors, and took goods, alleging that he did so to distrain for rent due to his father from C. The jury gave nominal damages, and the trespass being wilful, the judge, at the trial, certified that it was" wilful and malicious," so as to entitle the plaintiff to costs under the stat. 3 & 4 Vict. c. 24, and the Court of Exchequer discharged a rule which was obtained for rescinding that certificate. The stat. 3 & 4 Vict. c. 24, as to costs in trespass, is to be construed with reference to the stat. 8 & 9 Will. 3, c. 11, s. 4. Sherwin v. Swindall, 402

3. In an action of trespass against five for breaking into the plaintiff's house, in which the defendants have paid money into court, the plaintiff cannot go into proof (as evidence of

malice), that, nine months after the trespass, one of the defendants indicted him for perjury. Newton v. Holford, 537

4. Evidence of the conduct of the parties before the trespass, if it had reference to it, might be receivable; but not evidence of the act of one defendant done by him long after the trespass. Ibid.

5. In trespass against two excise officers for entering the plaintiff's house, there was, at the close of the plaintiff's case, no evidence against. one of them: - Held, if no further evidence was given for the plaintiff, that the plaintiff's counsel, must then elect to go on as to the other defendant only, and could not wait till the defence was concluded. Davies v. Moseley,

710

6. In order to shew, in trespass, that the defendant, an excise officer, entered the plaintiff's house, the defendant's affidavit was put in, by which he stated, that he entered the house by virtue of a magistrate's warrant, to search for malt which had not paid duty:--Held, that the putting in of this affidavit by the plaintiff did not make out a defence for the defendant, as the affidavit did not state that the warrant was granted upon oath made by an officer of excise, as required by the stat. 7 & 8 Geo. 4, c. 53, s. 34. Ibid.

TRIAL.

1. A merchant of London was indicted for a felony against the act of Parliament prohibiting slave-trading. His counsel applied to the Court to allow the prisoner to sit by him, not on the ground of his position in society, but because he was a foreigner, and several of the documents in the case were in a foreign language, and it would, therefore, be convenient for his counsel to have him by his side, that he might consult him during

the trial: -Held, that the application was one which ought not to be granted. Reg. v. Zulueta, 215

2. If an indictment for perjury be removed by certiorari at the instance of the defendant, and be entered for trial on the Nisi Prius side of the assizes by the defendant, the judge will not stop the case from being tried on a motion on the part of the prosecution, on the ground that the prosecutor has not had sufficient notice of trial; but, if the defendant is acquitted, no one appearing for the prosecution, it will be a mistrial if proper notice of trial had not been given.

Hair,

Reg. v. 389