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REG.

V.

SMITH AND

ANOTHER.

1852.

Kingston-on-Thames, in and for the county of Surrey aforesaid, the said action came on to be tried and then and there, before the Right Honourable John Lord Campbell, and the Right Honourable Sir James Parke, Knight, then and there being Her Majesty's Justices assigned to take the Assizes in and for the said county, was by a certain jury of the country in due form of law tried, upon which said trial the said jury did find and say upon their 13 Eliz. c. 5, oaths that the said W. S. was guilty of the grievances, nuisances and injurious acts, matters and things aforesaid; and assessed the damages of the said T. C. M. on occasion thereof, over and above his costs and charges by him about his said suit in that behalf expended, to 3007., and assessed those costs and charges at 40s.

Fraudulent conveyance

8. 3.

"That during the pendency of the said suit, to wit, from the commencement of the said suit until the 28th day of March in the year of our Lord 1851, the said W. C. was seised in his demesne as of fee of and in certain lands, hereditaments, and premises within the said county, to wit, at the parish of Battersea, in the county of Surrey.

"That the said W. S. late of the parish of Wandsworth, in the Indictment. county aforesaid, labourer, and S. Everett, late of the same place, labourer, devising and wickedly intending and contriving to injure, prejudice and aggrieve the said T. C. M., and to defraud and deprive him of any damages and costs to be recovered in the said action whilst the same was so pending as aforesaid, and immediately before the same came on for trial as aforesaid, and in anticipation of the said verdict, to wit, on the day and year last aforesaid, at the parish last aforesaid, in the county aforesaid, did devise, contrive and prepare, and cause to be prepared, a certain feigned, covinous and fraudulent alienation and conveyance, whereby the said W. S. expressed and declared to appoint and grant to the said S. E., the lands, tenements and hereditaments aforesaid, to hold to him the said S. E. and his heirs for ever.

"That the said W. S. and S. E., wickedly and fraudulently devising, contriving and intending as aforesaid, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, unlawfully, knowingly, wilfully, fraudulently, covinously and injuriously did execute and become parties to the said alienation and conveyance, and then and there wittingly and willingly did put in ure, avow, maintain, justify and defend the same alienation and conveyance, as true, simple, and done and made bonâ fide and upon good consideration, and as a conveyance and alienation whereby the said W. S. had really and bonâ fide appointed and granted to the said S. E. the lands, tenements and hereditaments aforesaid, to hold to him the said S. E. and his heirs for ever. Whereas in truth and in fact the said alienation and conveyance was not nor is it bonâ fide. And whereas the truth was and is that the same was so devised, contrived and executed as aforesaid, of malice, fraud, collusion and guile, and to the end, purpose and intent to delay and hinder the said T. C. M. of and in his said just and lawful action and the said damages by reason of the premises:

to the great let and hinderance of the due course and execution of law and justice, to the great injury of the said T. C. M., against the form of the statute in such case made and provided, and against the peace of our said Lady the Queen, her crown and dignity.

Second Count, as in the first count, to the asterisk, and continued thus:-That the said W. S. and S. E., devising and wickedly intending and contriving to injure, prejudice and aggrieve the said T. C. M., and to defraud and deprive him of any damages and costs to be recovered in the said action whilst the same was so pending as aforesaid, and immediately before the same came on for trial as aforesaid, and in anticipation of the said verdict, to wit, on the day and year last aforesaid, at the parish of Wandsworth, in the county aforesaid, did devise, contrive and prepare, and cause to be prepared, a fraudulent alienation and conveyance of the lands, tenements and hereditaments aforesaid. That the said W. S. and S. E. wickedly and fraudulently devising, contriving and intending as aforesaid, on the day and year aforesaid, at the parish last aforesaid, in the county aforesaid, unlawfully, knowingly, wilfully, fraudulently, covinously and injuriously did execute and become parties to the said alienation and conveyance, and then and there wittingly and willingly did put in ure, avow, maintain, justify and defend the same alienation and conveyance, as true, simple, and done and made bona fide and upon good consideration, and as a conveyance and alienation, whereby the said W. S. had really and bona fide aliened and conveyed to the said S. E. the lands, tenements and hereditaments aforesaid, to hold to him the said S. E. and his heirs for ever; whereas in truth, &c. as in first count.

Third Count to the asterisk.-That during the pendency of the said action and in anticipation of the said verdict, to wit, on the day and year last aforesaid, a certain feigned, covinous and fraudulent alienation and conveyance had been devised, contrived, prepared and executed by and between the said W. S. and the said S. E., whereby the said W. S. was expressed and declared to appoint and grant and make over to the said S. E., the lands, tenements, and hereditaments aforesaid, to the said S. E. and his heirs for ever. That the said W. S. and S. E., wickedly devising, contriving and intending to injure, prejudice and aggrieve him, and to deprive him of the said damages and costs in the said action so found as aforesaid, afterwards, to wit, on the 26th day of April, in the year of our Lord 1851, at the parish of Wandsworth, in the county aforesaid, unlawfully, wittingly and willingly did put in ure, avow, maintain, justify and defend the same alienation and conveyance, as true, simple, and done and made bonâ fide, and upon good consideration, and as a conveyance and alienation, whereby the said W. S. had really and bonâ fide appointed, granted and made over to the said S. E., the lands, tenements and hereditaments aforesaid, to hold to him the said S. E. and his heirs for ever; whereas in truth and in fact, &c.

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Fourth Count, as first count to asterisk. That during the pending of the said action and in anticipation of the said verdict, to wit, on the day and year last aforesaid, a certain feigned, covinous and fraudulent alienation and conveyance had been devised, contrived, prepared and executed by and between the said W. S. and the said S. E., of the lands, tenements and hereditaments aforesaid, to the said S. E. and his heirs for ever. That the said W. S. and S. E., wickedly devising, contriving and intending to injure, prejudice and aggrieve the said T. C. M., and defraud and deprive him of the said damages and costs in the said action so found as aforesaid, afterwards, to wit, on the 26th day of April, in the year of our Lord 1851, at the parish of Wandsworth aforesaid, in the county aforesaid, unlawfully, wittingly and willingly did put in ure, avow, maintain, justify and defend the same alienation and conveyance, as true, simple, and done and made bonâ fide, and upon good consideration, and as a conveyance and alienation whereby the said W. S. had really and bona fide granted, bargained, aliened, released, conveyed and made over to the said S. E., the lands, tenements and hereditaments aforesaid, to hold to him the said S. E. and his heirs for ever, &c.

Fifth Count.-And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. S. and the said S. E., and divers evil-disposed persons wickedly intending to injure the said T. C. M., on the 28th day of March, in the year of our Lord 1851, with force and arms, at the parish of Wandsworth, in the county aforesaid, did amongst themselves conspire, combine, confederate and agree together, fraudulently, maliciously and covinously to delay, hinder and defraud the said T. C. M. of all such damages which he might thereafter recover against the said W. S. in a certain action which was then pending in the court of our said Lady the Queen, before the Queen herself, wherein the said T. C. M. was plaintiff and the said W. S. was defendant, to the evil example of all others in the like case offending, against the peace of our said Lady the Queen, her crown and dignity.

Sixth Count.-And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. S. and the said S. E., and divers evil-disposed persons wickedly intending to injure the said T. C. M., on the 28th day of March, in the year of our Lord 1851, with force and arms, at the parish of Wandsworth, in the county aforesaid, did amongst themselves conspire, combine, confederate and agree together, fraudulently, maliciously and covinously to delay, hinder and defraud the creditors of the said W. S., to the evil example of all others in the like case offending, against the peace of our Lady the Queen, her crown and dignity. Seventh Count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. S. and the said S. E., and divers evil-disposed persons wickedly intending to injure the said T. C. M., on the 28th day of March, in the year of our Lord 1851, with force and arms, at the parish of Wandsworth, in the

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REG.

v.

SMITH AND

ANOTHER.

county aforesaid, did amongst themselves conspire, combine, confederate and agree together, fraudulently, maliciously and covinously to cheat and defraud the said T. Č. M. of the fruits, and of all benefits and advantages of any execution or executions which he might thereafter lawfully issue or cause to be issued against the lands or tenements of the said W. S., to the evil example of all others in the like case offending, against the peace of conveyanceour Lady the Queen, her crown and dignity.

Eighth Count.-And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. S. and the said S. E., and divers evil-disposed persons, wickedly intending to injure the said T. C. M. on the 28th day of March, in the year of our Lord 1851, with force and arms, at the parish of Wandsworth, in the county aforesaid, did amongst themselves conspire, combine, confederate and agree together, fraudulently, maliciously and covinously to cheat, injure, impoverish, prejudice and defraud the said T. C. M., to the evil example of all others in the like case offending, &c.

Ninth Count.-And the jurors aforesaid, upon their oath aforesaid, do further present, that heretofore and before and at the time of the commission of the offence hereinafter next mentioned, to wit, on the 28th day of March, in the year of our Lord 1851, a certain action on the case was pending between the said W. S. and the said T. C. M., to wit, in Her Majesty's Court of Queen's Bench, at Westminster, whereby the said T. C. M. sought to recover from the said W. S., damages for certain nuisances and injurious acts, matters and things alleged to have been done and committed to the injury of the said T. C. M. That the said W. S. and S. E., and divers evil-disposed persons, whilst the said action was so pending as aforesaid, to wit, on the day and year aforesaid, at the parish last aforesaid, in the county aforesaid, unlawfully and wickedly did conspire, combine, confederate and agree together, by divers unlawful, false, fraudulent and indirect ways, means, devices, stratagems and contrivances, to impede, hinder, prevent and delay the said T. C. M. in the said action, and in the prosecution thereof, and in the recovery of damages for the nuisances and injurious acts, matters and things aforesaid, to the great injury of the said T. C. M., against the form of the statute in such case made and provided, and against the peace of our said Lady the Queen, her crown and dignity.

Locke (for the defence), moved after verdict, in arrest of judgment, on the ground that no proceeding by indictment was contemplated by the statute. The third section was in these words: "That all and every the parties to such feigned, covinous or fraudulent feoffment, gift, grant, alienation, bargain, conveyance, bonds, suits, judgments, executions and other things before expressed, and being privy and knowing of the same or any of them, which at any time after the 10th day of June next coming, shall wittingly and willingly put in, ure, avow, maintain, justify or defend the same, or any of them, as true, simple, and done, had

1852.

Fraudulent

13 Eliz. c. 5,

8. 3.

REG.

v.

SMITH AND
ANOTHER.

1852.

Fraudulent

8. 3.

or made bonâ fide, and upon good consideration; or shall alien or assign any the lands, tenements, goods, leases, or other things before mentioned, to him or them conveyed as is aforesaid, or any part thereof, shall incur the penalty or forfeiture of one year's value of the said lands, tenements and hereditaments, leases, rents, cominons or other profits, of or out of the same, and the whole conveyance value of the said goods and chattels, and also of so much moneys 13 Eliz. c. 5, as are or shall be contained in any such covinous and feigned bond; the one moiety whereof to be to the Queen's Majesty, her heirs and successors, and the other moiety to the party or parties grieved by such feigned and fraudulent feoffment, gift, grant, alienation, bargain, conveyance, bonds, suits, judgments, executions, leases, rents, commons, profits, charges, and other things aforesaid, to be recovered in any of the Queen's Courts of Record by action of debt, bill, plaint or information, wherein no essoign, protection or wager of law shall be admitted to the defendant or defendants, and also being thereof lawfully convicted, shall suffer imprisonment for one half year, without bail or mainprize." The offence if any, of which the defendants have been guilty, is entirely created by this statute, and the section, after stating what the offence is, declares that for committing it, the offender shall incur a penalty or forfeiture of one year's value to be recovered by action. There is no mention whatever of indictment, but there is a reference to a civil proceeding. The rule with respect to the mode of proceeding where new offences are created by statute, is laid down in Russell on Crimes, p. 50, in the following terms: "Where an offence was punishable by a common law proceeding before the passing of a statute which prescribes a particular remedy by a summary proceeding, then either method may be pursued, as the particular remedy is cumulative and does not exclude the common law punishment. But where a statute creates a new offence by prohibiting and making unlawful what was lawful before, and appoints a particular remedy against such new offence, by a particular sanction and particular method of proceeding, such method must be pursued and no other. The mention of other methods of proceeding impliedly excludes that by indictment, unless such methods are given by a separate and substantive clause." There is another objection to this indictment, that it only states generally that this deed was fraudulent, not stating why or in what respect it was so. In Re Peck, 9 A. & E. 686, it was held that a count charging that the defendants unlawfully conspired to defraud divers persons who should bargain with them for the sale of merchandize, of great quantities of such merchandize without paying for the same, with intent to obtain to themselves money and other profit, was bad for not showing by what means the parties were to be defrauded.

James (with whom was Hawkins for the prosecution), was not called upon.

MAULE, J.-As to the first point that the section of the act

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