1853.

COOPER

V.

THORNTON.

to the debtor part of the estate to the value of 201. [He then stated other objections, upon which the Court pronounced no decision.]

Macnamara, contrà. The Court is, undoubtedly, bound by the decision of Tetley v. Taylor (a), but not by the dicta pronounced in that case. There the debtor was to pay only 7s. 6d. in the pound: the deed was therefore one of composition. Here all the effects are to be distributed: this is not a composition deed. It was, at the least, intended by the Legislature to leave to the six sevenths of the creditors some discretion as to the management; Phillips v. Surridge (b). If not, the slightest deviation from the ordinary provisions for bankruptcy would invalidate the deed. The deed will be interpreted favourably it may mean only that the debtor is to have the twenty pounds' worth if he pays 20s. in the pound. [Lord Campbell C. J. He would have that at any rate: you give no effect to the proviso.] It is no more than a mode of distribution. [Lord Campbell C. J. It is a distribution between debtor and creditor. Crompton J. The discretion given by the deed seems to be a discretion whether there shall be a distribution or not.]

Prentice, in reply, was stopped by the Court.

Lord CAMPBELL C. J. This objection is fatal: we need not consider the others. The debtor may receive back the sum of 20%., whether or not the estate pays 20s. in the pound. That is not a distribution of the whole estate, which is necessary according to Tetley v. Taylor (a).

COLERIDGE, WIGHTMAN and CROMPTON Js. concurred.
Judgment for plaintiff.

(a) Ante, p. 521.

(b) 1 Low. M. & P. 458. 472.

1853.

RICHARD SILL against The QUEEN, in error.

Wednesday,
January 26th.

bad on error

it does not

state to whom

longed. The defect is not cured by stat. 14 & 15 Vict.

c. 100.

THE plaintiff in error was indicted at the Middlesex An indictment Sessions. The first count of the indictment charged goods by false for obtaining that he, on &c., at &c., unlawfully, knowingly, &c., did pretences is falsely pretend to one Henry Broome that &c. (stating if the pretences). By means of which said false pretences the goods bethe said Richard Sill did then and there unlawfully obtain from the said Henry Broome two bills of exchange, of the value, and for the payment, of 120%, respectively, and one bill of exchange, of the value, and for the payment, of 2407., with intent then and there to cheat and defraud him, the said Henry Broome, of the same. Whereas, in truth &c. (negativing the pretences). There were two other counts, which, so far as regards the point decided, did not vary from the first. The indictment having been transmitted (a) to the Central Criminal Court, the defendant pleaded Not guilty. Issue thereon. Verdict: Guilty. The defendant was sentenced to be imprisoned and kept to hard labour for two years, the judgment being entered separately on each count.

On this judgment the defendant brought error. Joinder. (a) In Trinity term (June 7) 1852, Doyle, for defendant, moved for a certiorari, to remove this indictment to the Central Criminal Court. W. J. Metcalfe shewed cause in the first instance, contending that the certiorari was taken away by stat. 7 & 8 G. 4. c. 29. s. 53. Doyle, contra, relied on stat. 4 & 5 W. 4. c. 36. s. 16. The Court (Lord Campbell C. J., Coleridge and Erle Js.) said that a writ might issue, to transfer to the Central Criminal Court, though not a certiorari in the ordinary sense of the word. "Ordered: That a writ of certiorari issue, directed to the Keepers of the Peace and Justices" &c., " to remove all and singular indictments of whatsoever misdemeanours, whereof Richard Sill is before them indicted, into the Central Criminal Court."

1853.

SILL

H. J. Hodgson, for the plaintiff in error (defendant below). The indictment is bad upon error for not The QUEEN. shewing whose property the articles obtained were;

V.

Regina v. Norton (a), Rex v. Martin (b). [W.J. Metcalfe, for the Crown, stated that he relied upon stat. 14 & 15 Vict. c. 100., and admitted that, before that statute, the indictment would have been bad.] Sect. 25 of that statute enacts that "every objection to any indictment for any formal defect apparent on the face thereof shall be taken, by demurrer or motion to quash such indictment, before the jury shall be sworn, and not afterwards;" and that the Court may amend such defect. But this is an objection to the want of a substantive allegation: Lord Denman C. J., in Rex v. Martin (a), points out that the goods, for anything that was shewn, might be those of the defendant himself. [Lord Campbell C. J. Would that necessarily be a defence?] The only section of the statute relating to ownership is the first: that allows the Court at the trial to amend (and if necessary to postpone the trial), where there is a variance between the indictment and the evidence in the name or description of any person or persons "stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offence charged therein," "or in the ownership of any property named or described therein." But that power must be exercised before error brought: and, further, the clause assumes that there ought to be the allegation, and provides only for a mistake in fact. Sect. 8 relates directly to the offence of obtaining goods under false pretences: but it does not dispense with the allegation as to the

(a) 8 C. & P. 196.

(b) 8 A. & E. 481.

property it enacts only that it shall be sufficient "to allege that the defendant did the act with intent to defraud, without alleging the intent of the defendant to be to defraud any particular person." The precedent given in Mr. Greaves's edition of Lord Campbell's Acts, No. 34., contains the allegation as to property.

The Court then called on

W. J. Metcalfe, for the Crown. Under sect. 25 the question is, whether this be a defect of form or of substance. [Crompton J. How can an allegation be formal which must be proved as laid? Lord Campbell C. J. If you had laid the goods to be the goods of J. S., you must have proved that.] If necessary, the Court may now amend. [Coleridge J. No: that must be done before verdict, under sect. 1; the trial is to "proceed" after the amendment.] Sect. 25 must have in view something more than matters entirely immaterial: those are sufficiently provided for by sect. 24; sect. 20 contains an instance, in one particular class of offences, of the relaxation in point of fulness of allegation which the Legislature intended to introduce: and the Court, in disallowing this objection, will be following the analogy of sect. 8: the person defrauded may be assumed to be ordinarily the owner of the goods. It seems from the language of the Court in Regina v. Parker (a) that the allegation does not affect the gist of the offence.

H. J. Hodgson, in reply. The defect was there held fatal. Sect. 25 was passed for the purpose of meeting a particular case: the Court will not extend the enactment to other cases.

1853.

SILL

V.

The QUEEN.

(a) 3 Q. B. 292.

1853.

SILL

V.

The QUEEN.

ance.

Lord CAMPBELL C. J. I am reluctantly compelled to yield to the objection. It is admitted that, before stat. 14 & 15 Vict. c. 100., it was necessary to lay the property of the goods in some one. I might have thought that no injustice would have been done by dispensing with such necessity. But there have been solemn decisions by which I feel bound: and therefore the only question is, whether the statute alters the law. Now sect. 1 relates to variances only: this is no variThen sect. 8, upon which a plausible argument was suggested, shews that the Legislature intended only to make it unnecessary to specify the individual defrauded, making it sufficient to shew that there was an intent to defraud. But that does not obviate the necessity of shewing to whom the goods belonged. Then sect. 25 would prevent the defendant from now taking the objection, if the omission were matter of form. But how can we call an allegation formal which must be proved as alleged? Had there been an allegation laying the property in the wrong person, that, under sect. 1, might have been amended at the trial: but, without such amendment, the defendant must have been acquitted. That being so, I cannot say that the allegation is formal. The law therefore stands as before the statute. I regret the result very much: and I hope that, before long, the Legislature will put an end to this nicety, among others.

COLERIDGE J. The real question is, whether it is necessary to state the ownership in indictments for unlawfully obtaining property. The doubt I had was whether, under sect. 8, it was necessary to state it at all: if it be necessary, the statement is not formal. I think that sect. 1