Baines moved for a rule to show cause why a verdict should not be entered for the plaintiff in the above case, or a new trial had. He contended, that secondary evidence of the contract was rejected improperly, on two grounds: first, because the document which had been lost was not an agreement, inasmuch as it was signed on behalf of the defendant only, and it was, therefore, not liable to stamp duty at all; and, secondly, because, if this were not so, it was still a memorandum relating to the sale of goods, *wares, and merchandises, and was, therefore, within the fourth exemption in the Stamp Act.

*335] SED PER CURIAM. (a)-We are of opinion, that there should be no rule in this case. It appears to us, that a transaction such as this does not come within the description of a sale of goods, wares, or merchandises, so as to be exempted from the operations of the Stamp Act; and we are likewise of opinion that the broker's note does amount to an agreement between the parties.(6) It should, therefore, have been stamped; and, as it had not been stamped, the learned judge was right in refusing to receive secondary evidence of its contents.

(a) Pollock, C. B., Parke, Alderson, and Rolfe, Bs.

Rule refused.

(b) But see on this point, Josephs v. Pebrer, 1 C. & P. 341, and Tomkins v. Savory, 9 B. & C. 704. It will be observed, however, that the broker's note was not produced in either of these cases as evidence of a contract between buyer and seller; but in the former, merely for the purpose of showing that the broker himself had acted for his principal in a certain transaction; and, in the latter, to show that a certain representation had been made by the broker to his principal, which the principal alleged to be false. These cases, then, taken in this light, will not, it is submitted, be found to clash with the decision reported in the text.

ATKINSON v. HORNBY. Aug. 22.

An action against a magistrate for an act done by virtue of his office is a local action; and therefore, if (since the division of the county of Lancaster, by virtue of the 3 & 4 W. 4, c. 71, 8. 4), the venue in such action be laid in the "southern division" of that county, but it appear that the cause of action arose in the "northern division," the defendant will be entitled to a verdict thereof under the 21 Jac. 1, c. 12, s. 5.

TRESPASS for false imprisonment.

The defendant in this case was a magistrate. The venue was laid in the "southern division" of the county of Lancaster. But it appeared that the cause of action arose in the "northern division" of that county. *Baines, for the defendant, submitted, that, under these circum*336] stances, the verdict must be entered for the defendant. By stat. 21 Jac. 1, c. 12, s. 5, it is enacted, "That if any action, &c., upon the case, trespass, battery, or false imprisonment, shall be brought, after the end of this present session of Parliament, against any justice of peace, mayor, &c., for or concerning any matter, cause, or thing by them or any of them done by virtue or reason of their or any of their office or offices, the said action, &c., shall be laid within the county where the

trespass or fact shall be done or committed, and not elsewhere." And the statute goes on to enact, "that if, at the trial, the plaintiff shall not prove the cause of action to have been in the county in which the venue is laid, the jury shall find for the defendant without regard to any other evidence." Then, by the 3 & 4 Will. 4, c. 71, s. 4, it is enacted, "That his Majesty shall have power, from time to time, for the purpose of carrying this act into effect, to order and direct that the Court of Common Pleas at Lancaster shall be holden at any one or more places in the county palatine of Lancaster as he shall think fit, and to divide the said. county palatine for the purpose of the trial of civil causes, and the transaction of other civil business in the said Court, and to make rules and regulations touching the venue in civil causes to be tried within any division of the said county, and all such rules and regulations shall be of the like force and effect as if the same had been made by the authority of Parliament, and shall be notified in the London Gazette, or in such other manner as his Majesty shall think fit." In pursuance of this act of Parliament, an order in Council, dated the 24th June, 1835, was issued in the London Gazette of the 26th June, 1835, whereby, for the purposes of that act, the county palatine of Lancaster was divided into the "northern division" and the "southern division;" and that order contained the following proviso: "Provided nevertheless, and we do further order and direct, that, in all cases of civil actions in the said Court of Common pleas, *in which the venue is by law [*337 local, the issues therein shall be tried at Lancaster in cases where the cause of action shall have arisen in the northern division,' and at Liverpool where the cause of action shall have arisen in the 'southern division,' in like manner as if the two divisions were two separate counties; and the declarations in such actions shall have in the margin, in addition to the ordinary venue, the words 'northern division' or 'southern division,' as the case may require; but no other alteration from the ordinary form shall be necessary." This being so, and the cause of action in the present instance having arisen in the northern. division of the county, the venue should have been laid in the "northern division ;" and as this has not been done, the action cannot be tried at Liverpool.

Knowles, contrà.—The order in council of the 24th June, 1835, does not apply to this case; and, even if it did, there is no authority for that order by act of Parliament. Before the stat. 21 Jac. 1, c. 12, s. 5, an action against a magistrate might be brought in any county. The statute of James certainly restricted this, and rendered it necessary to lay the venue in such cases in the county where the cause of action arose. But still this did not make such actions strictly local. Local actions are, properly speaking, such only as relate to land,-where, in fact, the venue is of necessity local, as in the action of ejectment, because the judgment therein cannot be executed except in the county in which the

cause of action arose. This action is not one of that kind; and therefore it is not affected by the order in council, because that applies only to actions where the venue is by law local.

*338]

CRESSWELL, J.-Are not some actions by law local, which merely sound in damages, as trespass to land without ejectment? How, then, can it be said that the reason why such actions only as relate to land are by law local is, that in *them the judgment cannot be executed out of the county in which the cause of action arose? Knowles.-At all events the statute of James does not make this a local action; and it was clearly not local at common law. Was it, then, made local by the order in council? That could not be; because the act of parliament under which that order was issued did not empower the Crown to declare that to be a local action which was not previously so by law.

Baines was heard in reply.

CRESSWELL, J. (after consulting with Wightman, J.)—I am of opinion that the verdict in this case must be entered for the defendant. It appears to me that this action is made local by the stat. 21 Jac. 1, c. 12, s. 5, just as much as if it had been local at common law; and that, therefore, this order in council, applying in general terms to all actions in which the venue is by law local, applies to actions like the present, and it has, with reference thereto, all the force of an act of Parliament. Since then the evidence has not shown any act of the defendant done by him as a magistrate in this matter within the "southern division" of this county, I think that the plaintiff has not laid his venue so as to satisfy the words of the statute. There must, therefore, be a verdict for the defendant. Verdict for the defendant.

Knowles and Aspland, for the plaintiff.
Baines and Pashley, for the defendant.

[Attorneys-W. P. Roberts, and Backhouse.]

*339]

*(Crown Side.)

*BEFORE MR. JUSTICE WIGHTMAN.

REGINA v. GREENWOOD and Others. Aug. 21.

If, on the trial of an indictment for a robbery with violence, the robbery be not proved, the prisoner cannot be found guilty of the assault only (under 7 W. 4 & 1 Vict. c. 85, s. 11), unless it appear that such assault was committed in the progress of something which, when completed, would be, and with intent to commit, a felony.

THE prisoners were indicted for a robbery with violence.

From the evidence adduced on behalf of the prosecution, there did not

appear to be any proof that a robbery had been committed. It was, however, contended by

Brandt, for the prosecution, that there was sufficient evidence whereon to convict the prisoners of the assault, under the 7 Will. 4 & 1 Vict. c. 85, s. 11, which enacts, "that on the trial of any person for any of the offences therein before mentioned, or for any felony whatever, when the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony, and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding."

WIGHTMAN, J., (after consulting with Cresswell, J.)—The prisoners cannot be found guilty of the assault charged in this indictment, unless it appear that such assault was committed in the progress of something which, when completed, would be, and with intent to commit, a felony. The stat. 7 Will. 4 & 1 Vict. c. 85, s. 11, does not apply to any other case; and therefore, unless the jury are satisfied that the prisoners intended to rob, or did actually rob the prosecutor at the time they assaulted him, they cannot be convicted of such assault under this indictment.

The prisoners were acquitted. (a)

*Brandt and Eastwood, for the prosecution.

James, for the prisoners.

[*340

(a) But see Ellis's case, 8 C. & P. 654. There the prisoner was indicted for a robbery with violence, and the jury found him guilty of an assault, but without any intention to commit a felony; and it was held (per Park, J., and Alderson, B.), that this special finding did not take the case out of the operation of the statute. See also the case of Regina v. Birck, ante, p. 193.

REGINA v. BUTLER. Aug. 21.

Where a servant received money from his master, in order to pay the wages of certain work-people therewith, and in the book in which the account of the moneys so paid was kept by the servant, entries were found charging the master with more money than the servant had actually disbursed, but there was no proof that he had ever delivered this account to his master:Held, that this did not amount to larceny in the servant.

THE prisoner was indicted for larceny.

It appeared from the evidence that the prosecutors were spinners, and that the prisoner, who was in their employ, had been from time to time intrusted by them with money for the purpose of paying the wages of their work-people. The duty of the prisoner was to keep an account in

book of the moneys which he so disbursed. This book was produced at the trial; and on its being so produced, it was proved to contain three entries made by the prisoner, in each of which he had charged his employers with more money than he had paid on their account. The book had been balanced by the prisoner, but there was no evidence that he had actually accounted with his employers.

WIGHTMAN, J., stopped the case. The question here is, did the prisoner in fact deliver this account to his employers? True it is, that here are certain entries, made by the prisoner, which are incorrect; but they are entries which, perhaps, he never intended to deliver, or if he did deliver them, to deliver them with explanations. But this was not accounting; and there must in this case have been an accounting, in order to fix the prisoner with the larceny.

The prisoner was acquitted.

Hulton, for the prosecution.

*341]

*REGINA v. HAMBLET HOLCROFT. Aug. 22.

Semble, that on an indictment for carnally knowing and abusing a female child under the age of ten years, which does not charge any assault, the prisoner cannot be convicted of an assault under the 11th section of the stat. 7 Will. 4 & 1 Vict. c. 85.

THE indictment charged the prisoner with the felony of having carnally known and abused one Sarah Green, a girl under the age of ten years. The indictment did not contain any charge of assault.

The case was proved, and evidence was given to show that there had been penetration.

Joseph Pollock, for the prisoner, in addressing the jury, submitted that the evidence of penetration was insufficient; and suggested, that, if the jury should be of that opinion, they might convict the prisoner of an assault, under the stat. 1 Vict. c. 85, s. 11.

WIGHTMAN, J.-I fear that on an indictment in this form I cannot put that alternative to the jury. The indictment does not charge any assault, it merely alleges that the prisoner carnally knew and abused this child; and the question is, whether this charge of carnally knowing and abusing necessarily includes an assault. It appears to me that it does not.

Joseph Pollock.-That appears to have been the view taken by the learned judges in the cases of Regina v. Banks, 8 C. & P. 574; Regina v. Martin, 9 C. & P. 213, and 2 M. C. C. 123; and Regina v. Meredith, 8 C. & P. 589.

Monk, for the prosecution.-In the case of Regina v. M'Rue, 8 C. & P. 641, the prisoner was convicted of an assault on an indictment for this offence.

*342]

*WIGHTMAN, J.-I entertain a strong opinion, but I will consult my brother Cresswell.

His Lordship, having conferred with Mr. Justice Cresswell, said, "My brother Cresswell agrees with me in opinion, that in this case a verdict of guilty of an assault cannot be received; but it is a point which ought to be settled; and as in the case of Regina v. M'Rue, a conviction for an assault upon an indictment in this form was taken before three learned