judges, (a) I shall, if necessary, adopt that course, in order that the point may be submitted, if necessary, to the fifteen judges:" and, in his summing up, his Lordship said, "Supposing you are not satisfied of actual penetration, but satisfied of something short of it, of some violence, not great in degree, but still of some amount, used by the prisoner towards the child, I shall tell you, for the purpose of to-day, that you may acquit the prisoner of the felony and find him guilty of an assault. I shall ask you, first, whether he is guilty of the whole charge; and, secondly, whether, if not guilty of the felony, he did attempt, against the will of the child, something of the kind represented." Monk, for the prosecution. Verdict-Guilty of the felony. [Attorneys-Wagstaffe, Marsh & Barratt, and Dodd.] *REGINA v. BENJAMIN BARRETT. Aug. 25. [*343 Where an engineer, who had charge of an engine which was worked for the purpose of keeping up a supply of pure air in a mine, neglected his duty, so that the engine stopped and the mine thereby became charged with foul air, which afterwards exploded and caused the death of one of the miners:-Held, that in such a case the engineer could not be convicted of manslaughter on an indictment which did not allege a duty in him which he had neglected to perform. MANSLAUGHTER.-The indictment charged, that, before and at the time, &c., the prisoner was in the employ of W. S. and others at their colliery, and was then and there employed to superintend and keep in motion the working of an engine at the said colliery, for pumping out the water from the underground workings of the said colliery, and thereby keeping a clear and free course for the passage of atmospheric air through, and the dispersing of foul air and noxious gases, and especially a destructive, &c., gas, called carburetted hydrogen gas, which, in the absence of such free and clear passage of atmospheric air, would accumulate and become of great volume and quantity in the said colliery. It then charged that the prisoner in and upon one J. H. feloniously made an assault, and that the prisoner, on, &c., and for two days before, at, &c., did feloniously absent himself from the said colliery, and did feloniously neglect and refuse to superintend and keep in motion the working of the said engine, and did thereby feloniously prevent a clear and free course being left for the passage of atmospheric air through the said workings, and did cause foul and noxious gases, and especially carburetted hydrogen gas, to accumulate and increase in the workings of the said colliery; and that the prisoner did feloniously cause and occasion divers large quantities and volumes of carburetted hydrogen and other noxious and inflammable gases, which had accumulated and increased in the said colliery, to surround and be near to and about the said T. H., VOL. II.-29 then and there being a collier, employed in the said colliery, and then and there using a lighted candle in the same, and did then and there feloniously cause the said carburetted hydrogen and other gases, by then and there being so feloniously caused to surround and be near to and about the said T. H., then and there instantly and with great vio*344] lence to become ignited and *explode, and then and there to burn, bruise, and wound him, the said T. H., thereby giving him, on the face, &c., divers mortal wounds, &c., of which he languished and died. There were two other counts in the indictment, in which many of the allegations contained in the first count were omitted; but each of which laid the same cause of death, and charged it as having occurred in the same way as the first count. The facts of the case, as opened by the counsel for the prosecution, appeared to be as follow:-The deceased had worked in a coal mine, which was at a short distance from an old coal mine which had ceased to be worked; and, between the two mines, there was a passage for the admission of air into the new mine. In the old coal mine there was an engine which was used for the purpose of pumping the water out of that mine, in order that the passage between the two mines might be kept free; and the prisoner, who was an engineer, had been employed to work this engine. The prisoner had absented himself from his duty for three days, during which time the engine did not work; and the consequence of this was, that the water collected in, and prevented the air from circulating through the passage between the two mines, thereby occasioning an accumulation of foul air, as charged in the indictment. While things were in this state, the deceased entered the mine with a lighted candle, whereupon the foul air exploded, and he received the injuries of which he died. Monk, for the prisoner.-These facts, if proved, do not amount to an indictable offence. All that they show is, that the prisoner was guilty of a breach of a civil contract. The charge in the indictment amounts to no more than a mere non-feasance,-it discloses no act of mis-feasance. But acts of mere non-feasance do not make a man criminally liable, *345] except in cases where he omits to discharge a duty imposed upon him by law, as for example, the duty of a parent to support his child. In all other cases there must be, in order to support a criminal charge, some act done, not the mere omission or neglect to do an act; and he cited Rex v. Green, 7 C. & P. 156, where it was held :-that, to make the captain of a steam-vessel guilty of manslaughter, in causing a person to be drowned by running down a boat, the prosecutor must show some act done by the captain; and that a mere omission, on his part, to do the whole of his duty, is not sufficient for that purpose. WIGHTMAN, J., was of opinion that the facts as charged did not constitute an indictable offence observing, that the indictment contained no direct allegation that it was the duty of the prisoner to do that which he was alleged to have neglected to do: (a) and, accordingly, The prisoner was acquitted. Brandt and Hulton, for the prosecution. Monk, for the prisoner. (a) See also Reg. v. Allen and Clarke, 7 C. & P. 153; and Regina v. Haines, post, p. 368. *NORTHERN SPRING CIRCUIT, 1847. [*346 BEFORE MR. BARON ALDERSON AND MR. BARON ROLFE. In indebitatus assumpsit for goods sold and delivered, the defendant cannot show, under the plea of non assumpsit, that at the time of the sale the goods sold did not belong to the vendor, and that they were afterwards reclaimed by the real owner. ASSUMPSIT for goods sold and delivered. Pleas, non assumpsit, and set-off. The facts of the case were as follow:-The defendant had bought a large quantity of bricks from the plaintiff, which, at the time of the purchase, were lying on land on which the plaintiff had liberty to make bricks. Soon after the purchase the defendant removed a considerable portion of the bricks; but before this time he had had the whole quantity counted, and a lock put upon the gate of the field in which they were lying. It was admitted, that the defendant had taken possession of the whole of the bricks under the purchase. Whilst the defendant was removing the bricks, however, a person of the name of Cope laid claim to them under the following circumstances:-Cope had been in the habit of buying bricks from the plaintiff, and of paying for them partly in money and partly in malt. During this course of dealing, Cope had supplied the plaintiff with malt to a greater amount than the value of the bricks which he had had in return; and it appeared, that, by an agreement *with the plaintiff's wife, who was his agent in [*347 the transaction, the bricks sold by the plaintiff to the defendant had been previously appropriated to Cope in satisfaction of his, Cope's, claim for the malt so supplied by him to the plaintiff; Cope accordingly took possession by force of all the bricks which the defendant had not removed. Under these circumstances, it was contended by Watson and Tomlinson, for the defendant, that the plaintiff was not entitled to recover. In order to support the count "for goods sold and delivered," it must appear, that, by the sale, the vendor actually passed the property in the goods to the vendee. Unless, therefore, it appear that at the time of the sale the vendor had the property in the goods, that count will not be supported, even although there be proof of a delivery of such goods to the vendee. The old form of this count was for "goods of the plaintiff," sold and delivered. And that form was abandoned, merely in order to avoid the difficulties which arose upon it, in cases where actions were brought by principals to recover the price of goods which had been sold by their agents in their own names. The form itself was in accordance with the nature of the contract of sale, which implies that the vendor does in fact transfer a property in the thing sold; but this cannot be done, if, at the time of the sale, such property do not exist in him. If, therefore, it appear, as it does in this case, that at the time of the sale the vendor had no property in the goods sold, this fact is admissible in evidence, under the general issue, to disprove the count for goods sold and delivered. ROLFE, B.-What is your proposition? Is it, that, in every case of an action for goods sold and delivered, the defendant may show, under the general issue, that, at the time of the sale, the vendor was not the owner of the goods; or is your proposition merely this, that although the goods in question were in fact sold and delivered, yet *that *348] the plaintiff cannot maintain the present action, not simply because the goods were not his at the time of the sale, but because they have since been reclaimed by the owner? You do not appear to assert that you can show, merely that the plaintiff had no title to these goods; but what you rely on seems to be, that the goods have, since the sale, been actually reclaimed by the real owner. If, however, this were allowed to be shown under the general issue, then we should get into this difficulty, that, in a case like this, that plea might be a good ples at one period after the sale, and not at another. Tomlinson referred to Allen v. Hopkins, 13 M. & W. 94. ROLFE, B.-That case is no authority for you; for there the defence, that the plaintiff was not, at the time of the sale, the real owner of the goods, and that the real owner had been since paid for the goods, was specially pleaded. It rather seems to confirm my opinion of the case now before us; and my present opinion of this case is, that the plaintiff must have a verdict. (a) Verdict for the plaintiff. (a) See Reg. Gen. Hil. Term, 4 W. 4, Pleadings in particular actions, tit. "Assumpsit," No. 1. "In an action of indebitatus assumpsit for goods sold and delivered, the plea of non assumpsit will operate as a denial of the sale and delivery in point of fact.” Martin and H. Hill, for the plaintiff. [Attorneys-Heath, and ———.] *CAINE v. HORSEFALL. March 27. [*349 By an agreement between an African merchant and an African captain, the latter was to have a commission of "£6 per cent. on the net proceeds of the homeward cargo, after deducting the usual charges:"-Held, that parol evidence was not admissible to show, that, under this kind of contract, according to the course of dealing between African captains and African merchants, the captain was entitled to his commission on the whole amount for which the cargo had been sold, and not merely on the net sum that had come to the hands of the merchant as the result of that sale. ASSUMPSIT for work, labour, and commission. Pleas, non assumpsit; payment, and set-off. The plaintiff, in this case, was an African captain; the defendant was an African merchant. The African trade is carried on almost entirely by way of barter; and the captains who command ships engaged in that trade, are generally paid by a commission on the sale of the home cargo. The contract between the present plaintiff and defendant was made by a letter, dated the 3d February, 1845, addressed by the latter to the former; and in that letter there was the following passage: "Your commissions are 6 per cent. on the net proceeds of the homeward cargo, after deducting the usual charges, viz. £4 per ton of the gross sales of the oil if taken from the quay; 47. 158. per ton if taken from the warehouse." A voyage to Africa and back was undertaken by the plaintiff on the above terms; and, after the home-cargo was disposed of, an account was delivered to him by the defendant; in which the latter allowed him the commission of £6 per cent. on the sums which had been actually realized by the sale, but not on the bad debts. With reference to these latter, the commission was allowed only on the dividends which had been received in respect of them. The sums so respectively allowed had been paid. Martin, for the plaintiff (in his opening), contended, that the defendant had no right to deduct the commission in respect of bad debts. By so doing the defendant sought to make the plaintiff a co-adventurer with reference to this cargo. But he was not so in fact. The captain had no control over the cargo after its arrival; but the sole disposal of it was in the hands of the merchant, who might sell it or not just as he pleased, and to whom and when he pleased. If, *therefore, the merchant did not choose to sell the cargo at all, then-if the defendant's construction of the contract was the correct one-the captain would be entitled to nothing. It would, however, be shown by evidence, that, according to the universal practice of the African trade, the U [*350 |