Page images
PDF
EPUB

plicable more particularly to those guards upon which the attorney for the prosecution in the present case relied, under the act of 1823, as not perjury at common law, but the offence of false swearing created by the statute. The learned judge said that the allegation in the indictment is, that the defendant falsely swore that the fishermen's agree ment produced by him to the collector, was the original agreement for the performance of the fishing vogage, when in fact it was not the original agreement. The fishermen testify that they were not engaged upon shares, but were hired for a specific time, to be paid for every thousand of fish caught by them during the voyage. If you believe them, the shipping paper upon which the defendant took the oath was not the actual agreement with the fishermen, and if they were hired as they have testified, the vessel would not be entitled to the allowance of bounty, because the law in that respect had not been complied with, and whoever knew that such was the fact, and was concerned in procuring the payment of the bounty, with that knowledge, participated in a fraud upon the United States.

But if a fraud was committed, was the defendant guilty of the offence of false swearing in order to obtain the bounty with which he is charged?

Was the oath which the defendant took when he obtained the bounty from the collector, false within the meaning of the law? That it was not the truth is apparent, but to make the defendant guilty of false swearing, it must have been intentionally false. It must be false as to him, and he must be proved to have been guilty of the intent to swear to a falsehood.

First-It is contended for the prosecution, that from all the evidence in the case the defendant must have known it was not the agreement.

Second-That he swore positively it was the agreement, when he was conscious that he did not know it was the agreement.

These are distinct grounds, and if either is made out beyond a reasonable doubt, the offence charged has been committed. As to the first, did the defendant wilfully undertake to swear to that which he was well aware was untrue, and further did he do so for the purpose of deceiving the collector, in order to obtain the bounty? The motives and intent are to be drawn from the acts and declarations of the defendant. What were the facts? It does not appear that there was any communication between

VOL. IX.NO. II. NEW SERIES.

9

him and the owner, Crowell, who is deceased. The power of attorney to procure the bounty was given by Crowell to the defendant, who had no interest in the vessel. The defendant went to the collector with the fishing agreement drawn up for the division of the proceeds in shares, in the form required by law. That paper was signed by the master and fishermen, and countersigned by the owner. Upon the back of it was the oath of the master of the vessel, taken before the deputy collector, that it was the actual contract with the fishermen. There was also the certificate of the inspector, made before the vessel sailed, that it was the agreement under which the voyage was to be performed. What other knowledge he had does not appear. It is said that any stranger who looked at the papers might have the same knowledge, and thereupon swear that the paper was the true agreement. The collector came to the conclusion that it was genuine, and administered the oath. He says that he relied upon that oath, and did not go behind it, but he also examined the papers, which all appeared to be genuine, and in the form required by law. From the whole evidence the jury will determine whether they are satisfied beyond reasonable doubt, that when the defendant swore it was the original agreement, he knew it was not the original agreement, and intentionally swore falsely.

The second ground taken by the attorney for the prosecution, is distinct from this, and I instruct you that it would be false swearing if the defendant swore that he had personal knowledge of a fact, when he had no such knowledge, and was conscious he had none, and also so swore to deceive the collector, and induce him to pay the bounty. The form of the oath is positive. "I solemnly swear that the paper now produced by me, is the original agreement." Did the defendant by swearing positively mean to swear that he had personal knowledge that it was the original agreement? The defendant could not swear of his actual personal knowledge that it was the original agreement, unless he was present when it was made. All else would be information and hearsay. The question is, did he intend to make the collector understand that he had knowledge it was the original contract, or did he merely mean to swear that it was such to the best of his knowledge and belief? The matter for you to decide, gentlemen, is, whether you are satisfied that the defendant, in order to deceive the collector, wilfully and intentionally

swore to what he knew was false, either as to the agreement being genuine when he knew it was not, or to his knowledge of that fact when he was conscious he had no such knowledge.

The jury were kept together seven hours, and being unable to agree, were discharged.

B. F. Hallett, district attorney, for the United States.
T. K. Lothrop, for the defendant.

Notes of Recent English Decisions.

We give below, as promised in our last, notes of many English cases, indeed of all that had reached this country for several weeks before this number was prepared, and were considered of interest here. We have given them somewhat more fully than we do the short notices of our own decisions, because the originals are probably less accessible to our readers now, and cannot be got out by our enterprising publishing houses, until some months later than we are able to give an outline of them. Much of whatever merit may be found in the following abstracts, is due to J. Randolph Coolidge, Esquire, of the Suffolk Bar, a gentleman of high attainments, whose assistance we were so fortunate as to secure in their preparation.

Court of Queen's Bench. February 23, 1856.

THOMPSON V. Hopper.

Marine Insurance — Implied Warranty of Seaworthiness.

In a time policy effected by the owner of a vessel lying in a home port, where the owner resides, there is no implied warranty of seaworthiness. (Earle, J. dissentiente.)

A plea that the owner wilfully sent the ship to sea in an unseaworthy condition, and that while so, she was lost, is not sufficient, because it does not follow that she might not have reached her destination safely, and the averment is not that she was lost in consequence of unseaworthiness. But the owner cannot recover for a loss occurring from his own wrongful act in improperly sending the ship to sea in an unseaworthy condition, and without a master or proper crew.

Court of Queen's Bench. February 23, 1856.

FAWENS V. SARSFIELD.

Marine Insurance — Implied Warranty of Seaworthiness.

Where a time policy was effected on a ship while lying in a port where she could be repaired, but from which she sailed in an unseaworthy condition, and was afterwards lost, it was held

That there was no implied warranty of seaworthiness in the case and that the sailing of the vessel in an unseaworthy condition was no bar to the action, it not appearing that the assured was a resident of the place where the port was, nor that he had notice of the condition of the ship. But that the insured could not recover for repairs of the vessel in the course of the risk, which were rendered necessary by reason of her unseaworthiness merely, and not by the perils insured against.

Semble, by CAMPBELL, C. J., that there is no implied warranty of seaworthiness in any time policy.

Judicial Committee of the Privy Council, February 12, 1856.

THE JAMES LAWSON V. CARR.

Collision Statute rule where both are in fault.

The Merchant Shipping Act of 1854, lays down certain rules for the conduct of vessels, proceeding in different directions, and likely to collide, and provides that the owner of a ship infringing such rules, shall not be entitled to recover for damage from collision occasioned by the infringement.

Held, that a party thus in fault, cannot recover any damage, although the other party were also in fault. And that the statute applies to two vessels lying to, one heading to the north, the other to the south.

Queen's Bench (in Ireland). Mich. Term, 1855. Monday, November 26.

HAUGHTON v. MORTON.

Statute of Frauds- Signing.

A memorandum which contained the terms of a tract of sale of goods, was made at the time of the negoti ation between the parties, but was signed by neither. Sub

sequently the transaction was referred to in a letter written by the vendor to the purchaser, apparently relating to the memorandum, but insisting that he was discharged from performance of the agreement by force of a condition in the contract, which condition did not appear in the memorandum. An action having been brought against the vendor for non-delivery,

Held, (Lefroy, C. J. dissentiente) that the memorandum and letter, taken in conjunction, did not constitute a sufficient note in writing, within the statute of frauds.

Judicial Committee of the Privy Council. February 13, 1856. FRIXIONE V. TAGLIAFERRO.

Principal and Agent - Damages sustained on behalf of Principal-Ratification.

In order to entitle an agent to recover from his principal damages sustained in defending a suit on the principal's behalf, it is sufficient to show that the loss arose from the fact of the agency, that he was acting within the scope of his authority, and that the damage was not attributable to any fault or laches on his own part.

It is immaterial that he exceeded his original instructions, if the principal adopted his act with full knowledge of the facts.

V. C. Stuart's Court. Friday, April 4, 1856.

HAWKER V. HALLEWELL.

Post-Obit Bond. Insolvent Law.

[ocr errors]

A post-obit bond, during the life time of the parties upon whose death it is conditioned to take effect, is not a debitum in presenti solvendum in futuro, and the obligee cannot prove his claim against the insolvent obligor under the Insolvent Debtor's Relief Act. (12 Vic. c. 110.)

Bankruptcy (Dublin). January, 1856

Re WILLIAM and GILMORE AGNEW.

Proof of Debt

Co-contractors Joint Creditors - Collateral security - Merger - Costs.

When two, who are the principal or original debtors, execute a joint bond, with a third party as their surety, and the creditor enters up a joint judgment on the bond, he

« PreviousContinue »