29 COURT OF QUEEN'S BENCH. SITTINGS AFTER MICHAELMAS TERM. [Before CROMPTON, MELLOR, and SHEE, JJ.] WATSON, App., MARTIN, Resp.-Nov. 26. Gaming—“ Instruments of gaming”—5 Geo. 4, c. 83, s. 4. Halfpence used for tossing for money are not "instruments of gaming," within the meaning of sect. 4 of the 5 Geo. 4, c. 83 (the Vagrant Act). Case stated by two justices for the West Riding of the county of York, under the 20 & 21 Vict. c. 43. The appellant appeared upon a summons to answer a complaint charging, for that he, on the 29th May, 1864, at Gomersal, in the said Riding, did unlawfully play in a certain highway there situate, with certain instruments of gaming called halfpence, at a certain game of chance called toss, contrary to the form of the stat. 5 Geo. 4, c. 83 (the Vagrant Act). On the hearing it was proved, that on the day in question, the appellant and a number of other persons were seen by two police constables upon the highway at Gomersal, and that the appellant was tossing up halfpence of the ordinary current coin of the realm, and that he and other persons were betting upon the number of heads" or "tails" the halfpence came down, and that money passed between him and others as the result of such tossing. The attorney for the appellant raised the objection, that "halfpence" were not instruments of gaming, within the intent and meaning of the Vagrant Act. The justices convicted the appellant. The 5 Geo. 4, c. 83, s. 4, enacts, that " every person playing or betting in any street, road, highway, or other open and public place, at or with any table or instrument of gaming, or at any game, or pretended game, of chance, &c., shall be deemed to be a rogue and vagabond." The respondent did not appear. PER CURIAM-We are of opinion that halfpence cannot be considered as "instruments of gaming," within the meaning of sect. 4; which words seem to imply such instruments and things as are destined for the purpose of gaming.-Conviction quashed. HILARY TERM. | largement of the time, the award should have been ready on or before the 11th January. The award on its face shewed an enlargement to the 1st February, and another to the 1st March. The plaintiff, under the impression that the latter enlargement, though purporting to be made on the 1st February, was not, in fact, made until the 5th (on which day the award was made and published as aforesaid), and, being desirous of setting the same aside, endeavoured to obtain from the arbitrator an affidavit, that the time had not been duly and properly enlarged, and in the meantime filed a bill in Chancery in respect of the same matters as those depending upon the reference. The arbitrator having refused to make the required affidavit, the Court issued a peremptory order for his examination on oath before the Master, and he then swore that the time had been twice duly and properly enlarged, as appeared on the face of the award. The defendant, wishing to set up the award in answer to the proceedings in Chancery, obtained a rule to have the order of reference made a rule of Court upon an affidavit made by the London agent of the arbitrator, who was a solicitor, and which stated simply that the handwriting of the indorsements on the order of reference whereby the enlargements were made was that of the arbitrator, and that the signature to those indorsements was his. Mellish, Q. C., and Robins shewed cause.-The affidavit is sufficiently in compliance with the practice of the Court. The arbitrator having declared upon oath that the enlargements were duly made, the contrary cannot be assumed. (Dickens v. Jarvis, 5 B. & Cr. 528; In re Smith v. Reeves, 5 Dowl. 513). [Cockburn, C. J.— The Master informs us, that both in this Court and the Court of Exchequer, since the passing of the Common-law Procedure Act, 1854, it is sufficient if the affidavits are in the form now used.] Bovill, Q. C., and Shaw, in support of the rule.Sect. 26 of the Common-law Procedure Act, 1854, which does away with the necessity of proving by the attesting witness any instrument to the validity of which attestation is not requisite, is the only provision in that statute which can be considered as bearing in the slightest degree upon the question; but the rule to be observed is plainly laid down in 2 Chit. Arch. Prac. 1631, as follows:-" Also when it is necessary to make any enlargements of the time for making of the award a part of the rule of Court, there should be an affidavit that the enlargements have been duly made. If a cause has been referred by a judge's order, or an [Before COCKBURN, C. J., CROMPTON, BLACKBURN, and order of Nisi Prius, no affidavit is necessary; unless, MELLOR, JJ.j ROBERTS v. EVANS.-Jan. 16. Award-Arbitrator-Enlargement of time-Affidavit. An enlargement of time by an arbitrator for making his avard, indorsed thereupon, and purporting to have been made within the time prescribed by the order of reference, need not be proved by an affidavit either of the arbitrator or of an attesting witness (if there be one), but it is sufficient that there be an affidavit verifying the handwriting and signature of the arbitrator. Rule calling upon the defendant to shew cause why a rule obtained to make an order of reference a rule of Court, should not be discharged, on the ground that the affidavit did not verify the dates at which the enlargements of time for making the award had been made. It appeared when this case was before the Court on a former occasion (see ante, p. 15), that the matters in difference between the parties had been referred to an arbitrator, who, on the 5th February, 1864, made and published his award. Independently of any en indeed, it is necessary to make any enlargement of the time for making the award a part of the rule of Court, in which case there must be an affidavit of the enlargement." [They also referred to Davis v. Vass (15 East, 97) and Moule v. Stawell (Id, 99, note).] should be discharged. According to the practice which COCKBURN, C. J.-I am of opinion that this rule has existed since the passing of the Common-law Procedure Act, 1854, it does not appear to be requisite that there should be an affidavit by an attesting witness to establish the fact that an enlargement of time was made, as it purports to have been made within proper time; and for the purpose of making an order of reference a rule of Court, it is sufficient that there is an affidavit verifying the handwriting of the arbitrator. We, therefore, could not expect, in the case before us, that further affidavits should have been made. We must, in accordance with the existing practice, give credit to the arbitrator's statement with respect to those enlargements, as it appears on the award itself; and although it might be desirable that an affidavit by the attesting witness, if there be one, or by the arbitrator, if not, should be 22 ment of county rates, but to which the provisions of the Militia Act in other respects apply, provides for the contribution by such places to the expenses incurred for the efficient maintenance of the militia. An award had been made under the act, and the treasurer of the borough had been ordered to pay the contribution. The borough has for some years past had a police office appointed by the borough authorities, and wearing a police uniform, in addition to the parish constables and the sergeant-at-mace; and the general police of the county of Devon has not interfered with it. The questions for the opinion of the Court are, whether the borough is liable to contribute to the general county rate and to the general police rate for the said county, or to either or neither of them. Karslake, Q. C. (Lopes with him), for the respondent.-The borough of Bradninch is liable to the county rate. The question turns upon the charter of James, whereby the power of the borough justices to deal with "treason, murder, or felony, or any other matter touching the loss of life or limb," is expressly taken away, and their jurisdiction confined to " trespasses, misprisions, and other minor offences." The law as it stood before the passing of the 15 & 16 Vict. c. 81, is thus laid down in Burn's Justice of the Peace, by Bere, 204:-"The proviso in the 55 Geo. 3, c. 51, s. 1, stating that the act shall not give any jurisdiction to the justices of the county over any places situate within the limits of any liberties or franchises having a separate jurisdiction, is confined to franchises having a separate jurisdiction co-extensive with that possessed by the county justices; and therefore, where justices of the city of B. had no jurisdiction by charter to try felons, it was held that the city of B. was liable to the county rate:" for which is cited Rex v. Clarke (5 B. & Al.665). Then, by sect. 51 of the 15 & 16 Vict. c. 81, the word "county" is to include "any riding or division having a separate commission of the peace, or separate county treasurer, and any liberty, franchise, or other place in which rates in the nature of county rates may be levied, having a separate commission of the peace, and not subject to the jurisdiction of the county or counties at large in which such liberty, &c. may lie, nor contributing or paying to the county rates made for such county or counties at large." In The Mayor, &c. of East Looe v. The Justices of Cornwall (3 B. & S. 20; S. C., 8 Jur., N. S., 1128), which was a decision under the recent act, the Court held that the county justices had no power to include the borough there in question in the basis or standard for the purpose of the county rate; but there the county justices were excluded from jurisdiction within the borough by a non-intromittant clause, and the case is distinguishable. Moreover, the justices of the borough of Bradninch, having no jurisdiction to deal with treason, murder, felony, &c., cannot by right hold courts of quarter sessions at all. [Blackburn, J.-They are, however, to inquire concerning trespasses, misprisions, &c., and this would seem to give them the power of Sammoning a jury.] [As to the liability of the borough to the police rate, he referred to the 2 & 3 Vict. <. 93, s. 27; the 3 & 4 Vict. c. 88, s. 3; and Reg. v. The Overseers of Lackmanstone (2 Law T., N. S., 215).] der its old charter it was empowered to deal with capital offences, as sufficiently appears by its having, as the case finds, a gallows, a pillory, and a tumbril. [Blackburn, J.-Several ancient manors had the same privileges, which have long ceased to be available.] It was also entitled to hold pleas of withernam, which must have reference to actions of replevin; and this is strong to shew that the sheriff of the surrounding county had no jurisdiction within the limits of the borough; and, moreover, by the charter of James all its ancient privileges, its courts of record, liberties, franchises, &c. (saving the power of dealing with matters touching the loss of life or limb) are expressly confirmed. This, in effect (save as to the matters excepted), is equivalent to a non-intromittant clause; and the case, therefore, falls within the decision in The Mayor, &c. of East Looe v. The Justices of Cornwall. It is admitted, that if the liability of the borough to the county rate be established, its liability to the police rate cannot be questioned. COCKBURN, C. J.-The case certainly finds, that up to a recent period there has been no attempt on the part of the county magistrates to exercise any power or jurisdiction within the limits of the borough, but in the absence of any authority upon the point, we cannot, therefore, infer the existence of a non-intromittant clause. We must assume that such a clause was a well-known and established thing in the reign of James I; and if it had been the intention of the Crown that the borough in question should have exclusive jurisdiction, we are justified in the conclusion that it would have been secured in that manner. There must be, therefore, judgment for the respondent, but we think, under the circumstances, without costs. CROMPTON and BLACKBURN, JJ., concurred.-Judgment for the respondent. COURT OF COMMON PLEAS. [Before ERLE, C. J., and BYLES, J.] FIELDING V. LEE and Another.- Feb. 6. Bankrupt, goods in disposition of-True owner-Order for sale, form of. An order was made by a county court judge for the sale of all the goods of a bankrupt in and about his premises, called the Cross Keys. The bankrupt had on his premises, with the consent of the true owner, certain goods, of which the bankrupt was the reputed owner:-Held, that the order sufficiently described the goods to be sold, though it did not state the name of the true owner. Trover for certain household goods and furniture. Trespass to the same. Pleas-first, not guilty, by stats. 12 & 13 Vict. c. 106, and 13 & 14 Vict. c. 61; secondly, that the goods were not the plaintiff's; and, thirdly, that before the grievance complained of, and after the Bankrupt Act, 1861, one Taylor was declared bankrupt, and afterwards, in pursuance of the said statute, a warrant of seizure, under the hand of E. O., Esq., judge of the court, then and there having jurisdiction in the matter of the said bankruptcy, and under the seal of the said court, was directed to the high bailiff of the said court, &c., and all other her Majesty's loving subjects, whom the said Coleridge, Q. C. (Kingdon with him), for the appellant.-Under sect. 21 of the 15 & 16 Vict. c. 81, county justices at quarter sessions are empowered to order and direct county rates to be made, and for that pur-judge thereby required to be aiding and assisting in pose to assess parishes, townships, and other places within the respective limits of their commissions." [Crompton, J.-That is to say, within the limits of their counties, minus those places holding franchises, 4c.] The borough in question was such a place. Un the execution of the said warrant, as occasion might require; and the said warrant required, authorised, and empowered the persons to whom it was directed to enter the house of the said bankrupt, and then and there to seize the goods of the said bankrupt, and in case of resistance, or of not having the key of any door, or lock of any premises belonging to the said bankrupt where any of his goods were, or were suspected to be, to break open, &c., or cause the same to be broken open, for the better execution of the said warrant. And the defendants say, that one Harper, being a bailiff of the said court, and a person to whom the said warrant was directed, and having the same in his possession, entered the house where the goods of the bankrupt then were, and were suspected by him to be, and took peaceable possession thereof, and was afterwards ejected from the same, and applied to the defendants, pursuant to the said warrant, to aid him in the premises; and thereupon the defendants, acting in that behalf, at the request of the said Harper as aforesaid, entered the said house to assist the said bailiff in the execution of the warrant, and seized and took away the goods, &c., which are the alleged griev ances. Issue on the above pleas, and new assignment to the third plea, that the defendants, on other occasions, for other purposes, and with respect to other goods, in excess of the alleged right or authority, committed such trespasses and grievances as in the declaration complained of. Plea to the new assignment, not guilty, and issue thereon. only be satisfied that there is any owner other than the bankrupt. The object of the statute was to render the goods which gave the bankrupt credit liable to seizure. It would be most unreasonable to require the name of the true owner to be specified before the order is obtained. The effects were sufficiently identified by the order specifying the name of the bankrupt's house where he carried on business. [They cited Graham v. Fowler (14 C. B. 134) and Freshney v. Carrick (1 H. & Norm. 653).] ERLE, C. J.—I am of opinion that the rule for a new trial should be made absolute. The action is brought by the plaintiff, the owner of these household effects, against the defendant, who is assignee of one Taylor, a bankrupt. At the trial it was proved that the plaintiff was the true owner, but that he had allowed the goods to remain in the possession, order, and disposition of Taylor, the bankrupt. The goods were, therefore, liable to be sold under an order made in pursuance of the 125th section of the Bankrupt Act, 12 & 13 Vict. c. 106. An order was made for the sale of the goods under the powers of this section, and the goods were sold, pursuant to that order, by the defendant, as Taylor's assignee. But it is said that the order made was invalid, because it did not specify who was the true owner of the goods. The order is before us, and the question is, is it a valid order. In the case of Heslop v. Baker it was held that an order was good, though it did not state positively that the plaintiff was the true owner; and in Quartermain v. Biddleston (13 C. B. 133) there was an order, framed in the most general terms, "all goods and chattels which at the time the said A. B. became bankrupt were, by consent of the true owner, in the possession, order, or disposition of the bankrupt." But the order under which the goods in this case were sold is more explicit than in that case. It states the goods to be "the household goods and furniture in or about the messuage or dwel The cause came on for trial, before Mr. Serjeant Atkinson, at the summer assizes at Manchester, when it appeared that the plaintiff was the owner of the household furniture and effects at the Cross Keys public-house; that the business at the Cross Keys was carried on by one Taylor; that on the 1st April, 1864, Taylor became a bankrupt, and on the 29th of the same month Lee, the defendant in the action, was appointed assignee under the bankruptcy; that on the 6th June the county court judge of the district in which the proceedings in bankruptcy were, made the following order:-"That the household goods, furniture, &c., being in or upon the messuage or dwelling-ling-house in the occupation of T. Taylor, in Crosshouse and premises in the occupation of T. Taylor in Cross-street, Middleton, and known as the Cross Keys, be sold and disposed of by the assignees for the benefit of the creditors of the said T. Taylor." This order was made pursuant to the 125th section of the Bankrupt Act, 12 & 13 Vict. c. 106. On the 7th June the defendant and the bailiff of the county court entered upon the premises described in the said order, took possession of the goods, and ultimately they were sold. The question left to the jury was, whether the goods were the property of the plaintiff. The jury found that they were, and the verdict was entered for the plaintiff. Temple, Q. C., obtained a rule calling on the plaintiff to shew why the verdict should not be set aside, and a new trial had, on the ground of misdirection. E. James, Q. C., Bayliss, and Pope shewed cause.The jury, in fact, found by their verdict that the possession of the goods by the bankrupt was bonâ fide, and not fraudulent. That verdict ought not to be disturbed. The defendants could only seize by virtue of an order under the Bankrupt Act (12 & 13 Vict. c. 106, s. 125). That section provides, "that if a bankrupt at the time of bankruptcy has, by the consent of the true owners, in his possession, order, or disposition, any goods and chattels whereof he is the reputed owner, the Court shall have power to order the sale of such goods." But such order must specify the goods, and should state the true owner's name. This order did not specify the goods by the true owner's name. [They cited Heslop v. Baker (8 Exch. 411).] Temple, Q. C., Wood, and Torr, in support of the rule. The commissioner or county court judge need street, Middleton, and called the Cross Keys." I think this order sufficiently specified the goods to be sold. The object of the statute was, that creditors who dealt with a person who was in possession of goods, and thereby the colourable owner thereof, should. if such person became bankrupt, have power to obtain an order for the sale of such goods. I should have come to the same conclusion without the anthority of Friskney v. Carrick (1 H. & Norm. 653), but I am fortified by the remarks of my Brother Martin in that case, in which I concur. BYLES, J.-I am of the same opinion. The good were in the possession and disposition of the bankrupt and it was found that this was with the true owner's consent. The only question is, whether the order for the sale was sufficiently specific. I am of opinion that it was; I think the order in Quartermain v. Biddleston was bad. It amounts, in fact, to ar order-" Exercise the power the law gives you over any goods you may find." Such an order must b too general. It is objected to the order that it is not stated who the true owner is. In Friskney v Carrick my Brother Martin says, "The attention of the commissioner ought to be called to the particular goods, but the order need not state that it is made against different parties, some of whom claim one part. some another part, of the goods." These remarks are precisely in point in this case. These goods were in a public-house, and I do not see how a better description could have been made. I am of opinion that the rule should be made absolute.-Rule absolute. 22 COURT OF EXCHEQUER. HILARY TERM. an indecent assault on George Low, a lad about fourteen years of age. On the part of the defendant several witnesses were called, who had known him at [Coram POLLOCK, C. B., MARTIN, CHANNELL, and different periods of his life, and they gave him an PIGOTT, BB.] BLAKELEY V. ABELES.-Jan. 31. No affidavit can be used on an application for a new trial, it is to be used. Murphy moved for a rule nisi for a new trial, in a case tried before the undersheriff of Yorkshire, on the ground of misdirection. excellent character as a moral and well-conducted man. On the part of the prosecution, it was proposed to contradict this testimony, and a witness was called for that purpose. This was objected to by the de-. fendant's counsel, who contended that no such evidence was receivable, and cited the case of Reg. v. Burt and Others (5 Cox's C. C. 284). I thought the evidence was admissible, and after the witness had stated that he knew the defendant, the following question was put to him-'What is the defendant's The learned counsel was proceeding to unfold the general character for decency and morality of congrounds of his motion, when the Court called his at- duct?' His reply was, 'I know nothing of the neightention to the title of the affidavit verifying the un-bourhood's opinion, because I was only a boy at school dersheriff's notes, on which he moved. It was intitled when I knew him; but my opinion, and the opinion in the Queen's Bench, and had been sworn before a of my brothers, who were also pupils of his, is, that commissioner of that court. his character is that of a man capable of the grossest indecency and the most flagrant immorality.' It was objected, that this was not legal evidence at all of bad moral character. I considered that it was some evidence, and I left the weight and effect of it as an answer to the evidence of good character to be determined by the jury. The defendant was convicted, and is now in prison awaiting the judgment of your Lordships. The questions upon which I respectively request your decision are-first, whether, when witnesses have given a defendant a good character, any evidence is admissible to contradict; and, secondly, whether the answer made by the witness in this case was properly left to the jury." THE COURT (referring to 2 Chit. Archb. Prac. 1612, 11th ed., to the effect, that the affidavit must be sworn before a commissioner of the court in which it is to be used, and to rule 144," New Practice Rules, 1853") refused the rule.—Rule refused. CROWN CASES RESERVED. COURT OF CRIMINAL APPEAL. HILARY TERM. REG. v. JAMES ROWTON".-Jan. 28. character. missible. Jan. 21.-Sleigh, for the defendant.-As to the first question, Reg. v. Burt, cited in the case, is an authority, that witnesses cannot be called to contradict evidence of good character; also, on principle, such evidence must be inadmissible, because the question of character forms no part of the record or issue racter seems, first, to have been received in the time which the jury have to try. Evidence of good chaof Charles II (Rex v. Harris, 7 St. Tr. 929), and then was only admitted in favorem vitæ. [Willes, J.—The distinction is well put in Mr. Fitzjames Stephen's book Evidence of particular facts cannot be given upon the ques- is rather received in favour of liberty than as a right on the Criminal Law.] Evidence of good character tion of character. Evidence of character must be evidence of general reputation only, and a witness's indivi- on the part of the prisoner. [Pollock, C. B.-When a dual opinion respecting the character and disposition man is accused of a crime, can it be said to be irreof the prisoner, with reference to the charge, is inad-levant to inquire what kind of character he has borne in society?] In Roscoe's Crim. Ev. 85, 5th ed., it is said, that evidence of good character may be rebutted, but no authority is cited; and the statements in our text-books all seem to rest upon a Chancery case in lowed by Martyn v. Hind (2 Cowp. 437); 2 Stark. 304; 1742 (Clark v. Periam, 2 Atk. 337), which was folBull. N. P. 296; and 1 Ph. Ev. 477. As to the second question, it is submitted that no evidence of specific facts or of opinion is admissible; whether it be in support of or to impeach character, only general evidence can be given. [Cockburn, C. J.-Suppose the questions put-How long have you known the prisoner? Have you during that time found him perfectly honest ?] That would be objectionable. [He cited the definition of" character," "reputation," and "repute," in Johnson's Case stated by the deputy assistant judge of the Dictionary, also in Webster's; Erskine, in Hardy's case (24 St. Tr. 1079); 2 Stark. Ev. 304, 3rd ed.; 1 Ph. "James Rowton was tried before me, at the Mid-Ev. 507, ed. 1852; 3 Benth. 195; Best's Ev. 326, 327, dlesex Sessions, on the 30th September, 1864, on an indictment, which charged him with having committed The defendant was indicted for an indecent assault, and upon the trial called witnesses, who gave him a good character as a moral and well-conducted man. A wit ness was then called by the prosecution, who was asked, "What is the defendant's general character for decency and morality?" and in answer said, “I know nothing of the neighbourhood's opinion, because I was only a boy at school when I knew him; but my own opinion, and the opinion of my brothers, who were also pupils of his, is, that his character is that of a man capable of the grossest indecency, and the most flagrant immorality:"-Held (Erle, C. J., and Willes, J., dissentientibus), that the answer was not admissible in evi dence. Middlesex Sessions: This case was first argued on the 19th November, 1864, before Pollock, C. B., Byles and Willes, JJ., Channell, B., and Shee, J., when, their Lordships differing in opinion, it was directed to be reargued before all the judges. 328, ed. 1854; 14 & 15 Vict. c. 19, s. 9; Rex v. Rook wood (13 St. Tr. 211); Rex v. Davison (31 St. Tr. 189, 190); Rex v. Jonas (Id. 310); Sharp v. Scogin (Hill's N. P. 541); Mawson v. Hartsink (4 Esp. 102); The Attorney-General v. Hitchcock (11 Jur. 478); and Reg. v. Shrimpton (2 Den. C. C. 319).] Jan. 28.—Tayler, for the Crown.-Evidence of bad |