[PLATT, B. That case is against you. It shews that the affidavits ought to be sworn in that court or under a commission.] The Master extraordinary may be considered to have had authority under the statute 14 & 15 Vict. c. 99. s. 16.

[PARKE, B.-That only applies to cases of consent.]

POLLOCK, C.B.I am of opinion that the conviction cannot be supported. A Master extraordinary of the Court of Chancery has no authority by virtue of any commission to take affidavits in matters connected with the Court of Admiralty The fact of the latter Court having acted on such affidavits cannot confer any authority on the Master. The Court of Admiralty may have used such affidavits knowing that though wilful false swearing in them would not be perjury, yet it would be punishable as a misdemeanour.

PARKE, B.-The authority of a Master in Chancery is coeval with the earliest history of the Court of Chancery, and there. seems no restriction to prevent the Lord Chancellor appointing as many Masters as he pleases. But a Master extraordinary has no authority to administer an oath in a cause before the Court of Admiralty. It is a very different question whether a Master extraordinary might not have authority to swear a party to an affidavit in an Admiralty cause if it had been removed into the Court of Chancery. Though this be not perjury, yet, if a person knowingly swore a false affidavit before a Master extraordinary with the view of its being used in a proceeding in the Court of Admiralty, it would be a misdemeanour, as it would be an attempt to impose upon a Court in its administration of justice. The other Judges concurred.

refreshment, there being at the end of it a raised platform, on which stood a piano, and where songs were constantly sung. Programmes of the performance were laid about in different parts of the room. The company was respectable, and no money was paid for admission, nor any extra charge made for the articles consumed there. An action having been brought for a penalty under the 25 Geo. 2. c. 36. relating to public dancing, music, &c., the Judge directed the jury to say whether the room was used for the purpose of supplying refreshments in the manner of an hotel, the music and singing being incidental merely, or whether it was used principally for musical performances; and ultimately he directed them to consider whether the room was used for both purposes, in which latter case the plaintiff would be entitled to the verdict. The jury found that the room was used for the purposes of an hotel, and found a verdict for the defendant :-Held, that although the verdict might be against the evidence, there was no misdirection.

Held, also, (dissentiente Martin, B.,) that it would have been a misdirection in the Judge to state that the question was, whether the keeping of the room as an hotel was the principal or secondary object.

Debt for penalties under the statute 25 Geo. 2. c. 36. for keeping a house for the public performance of music without a licence (1).

Plea-never indebted.

At the trial, before Platt, B. at the Westminster Sittings in this term, the following facts appeared:-The defendant kept a room on the basement floor of Evans's Hotel, Covent Garden, capable of containing from 200 to 300 persons, and which was used as a supper-room and place of general refreshment. At one end of the room a piano was placed on a raised platform, from which music was performed and songs constantly sung, sometimes by persons in character and at other times

not. Printed programmes containing the songs to be sung were laid about in different parts of the room. The company was respectable; and no money was paid for admission, nor was any extra charge made for the liquors and other refreshments consumed in the room. Gregory v. Tuffs (2) was cited. These being the facts of the case, the learned Judge directed the jury to say what was the purpose for which the room was used, whether it was used for the purpose of supplying refreshments in the manner of an ordinary hotel, the music and singing being incidental merely, or whether it was used principally for the purposes of musical performances; and at the close of his summing up, he directed them to consider whether the room was used for both purposes, intimating that in the latter case the plaintiff would be entitled to the verdict. The jury found that the room was used for the purposes of an hotel, and returned a verdict for the defendant.

Montagu Chambers now moved for a new trial, on the ground of misdirection, and also of the verdict being against the evidence. The learned Judge misdirected the jury in leading them to suppose that the question was, whether the keeping the room as an hotel was the principal or the incidental purpose. This tended to mislead the jury. It is unimportant that the company frequenting the room is respectable-Green v. Botheroyd (3), or that money is taken for admission-Archer v. Willingrice (4). Nor is it necessary that the room should be used solely for musical performances to make the party keeping it liable. Bellis v. Beal (5) and Gregory v. Tavernor (6) shew that a room kept for drinking, music and dancing is within the 25 Geo. 2, c. 36.

[PARKE, B.-I do not think it matters which purpose was principal and which accessary. The Judge ultimately directed the jury rightly in desiring them to consider whether it was kept for both purposes. There was, therefore, no misdirection; and in a penal action no new trial will be

(2) 6 Car. & P. 271. (3) 3 Ibid. 471. (4) 4 Esp. 186.

(5) 2 Ibid. 592.

(6) 6 Car. & P. 280.

granted on the ground of the verdict being against the evidence.]

That is the old law.

[PARKE, B.-It is not the worse on that account.]

The jury were misled by the mode in which the case was, in the first instance, left to them, and they were not set right by a mere asking of questions by the learned Judge at the end of the case.

PARKE, B.-There will be no rule in this case. The fact of the verdict being against the evidence is no ground for a new trial in a penal action. That is the old law, and there is no ground for overruling it. No doubt it would have amounted to misdirection if the Judge had merely desired the jury to consider which was the principal object of keeping the house and which was the accessary, for if the room had been kept both for the purposes of an hotel and also for music, and there had been no licence, the defendant would have been liable. But at the end of the summing up and before the verdict was returned, the Judge, for the purpose of avoiding all questions on the subject, asked the jury to consider whether the house was not kept for the double purpose. The jury found that it was not so kept, but for the purposes of entertainment only. The direction was therefore right, and although the verdict may have been against the weight of the evidence, there is no reason for granting a new trial on that ground in a penal action.

ALDERSON, B.-I am of the same opinion. There is no misdirection in this case. The jury in answer to the Judge found that the room was kept for purposes of entertainment only. That in my opinion was a wrong verdict, but we cannot set it aside on that ground. If an improper verdict of not guilty is found in felonies and misdemeanours the Courts do not set it aside,-holding it to be better that the guilty should escape than that the matter should be tried over again. And this is a salutary rule.

PLATT, B. concurred.

MARTIN, B.-I differ from the rest of the Court in thinking it would have been a misdirection in the Judge to tell the jury to consider whether the keeping of

This was an application for a rule to call upon certain Justices of North Staffordshire to issue a distress warrant to enforce an assessment of a highway rate.

The affidavit shewed that the rate-book was properly made up in every respect, and presented to two Justices for allow ance, that through mistake and inadvertence, the surveyor signed the rate and the Justices wrote and signed their allowance upon the end of a page in the middle of the rate-book, instead of at the end of the whole rate. The words of the allowance

66

were: We, &c. do hereby consent to and allow the foregoing rate and assessment." The assessment sought to be enforced by distress was contained in that part of the rate which followed the allowance. Justices refused to grant a distress warrant to enforce the rate.

The

Scotland, in support of the motion.The Justices ought to have granted their warrant as the rate is not void; although, perhaps, it might have been voidable on appeal. In the Highway Act, the 5 & 6 Will. 4. c. 50. s. 27, it is provided that the

(7) 5 Mee. & W. 565; s. c. 9 Law J. Rep. (N.S.) M.C. 20.

NEW SERIES, XXIII.-MAG. CAS.

rate shall be signed by the surveyor, and allowed by two Justices, and published in the same way as poor-rates are now allowed and published. It does not say that the signature and allowance must be at the conclusion of the whole rate. At the time of the passing of the Highway Act, the governing statute relating to poor-rates was the statute 43 Eliz. c. 2, which simply enacts that the rate shall be made with the consent of two or more Justices of the Peace. It does not even say that the consent shall be in writing.

[CROMPTON, J.-It looks as if the Justices here had gone through the rate as far as the page which they signed, and thought that they had come to an end. It may be a good rate as to the foregoing part.]

The duty of the Justices is simply ministerial. They have no power to raise questions as to the particulars of the rate in any way. Section 118. of the Highway Act, prescribes the use of the form of rate set out in the schedule, and that form No. 4. mentions nothing about the allowance of it.

[CROMPTON, J.-The form in the schedule makes the surveyor sign at the end of the rate.]

The same section 118. directs that no objections are to be taken on account of any defect of form in any of the proceedings. Under the present Parochial Assessment Act, 6 & 7 Will. 4. c. 76, a want of strict compliance with the formal requisites of the act is not fatal to the rate-The Queen v. Fordham (1). By section 34. the rate is to be enforced as a poor-rate. If there is reasonable ground for believing the rate void, the Justices, it is true, ought not to grant their warrant-4 Burn's Justice, 355, 29th edit.

[CROMPTON, J.-When you go before Justices for a distress warrant to enforce poor-rates, you always prove the allowance, I think. In 4 Burn's Justice, 356, it is said the Justices should not issue their warrant when one of the rates has not been published, and Sibbald v. Roderick (2) is cited. That case is a distinct authority that the rate is void, if there is no allowance.]

(1) 11 Ad. & E. 73; s. c. 9 Law J. Rep. (N.s.) M.C. 3. (2) Ibid. 38; s. c. 9 Law J. Rep. (N.S.) M.C. 76.

D

That case is very distinguishable. There, there was no allowance. Here there is both signature and allowance, but in a wrong place.

CROMPTON, J.-I am quite clear that there is no allowance of that part of the rate which follows the signature. It is conceded that if there be no allowance, the Magistrates have not jurisdiction to grant a distress warrant, and the authorities bear out that proposition. I agree that if this had been a mere signature in a wrong place, but affecting to authenticate the whole rate, it would have been good. But I cannot think that that which expresses itself as allowing only what has gone before, can be an allowance of the whole rate. The Justices, therefore, were right in not granting their warrant. The rule consequently will be refused.

Rule refused.

The prisoner was indicted for an unnatural crime with a mare. T, who kept his mare in a stable at an inn, of which W. was landlord, saw the prisoner in the stable with the mare under circumstances that made him suspect the commission of the offence. W. and he afterwards went to the prisoner, and W. said to the latter “I want to know what business you had in T's stable." The prisoner said "You know." W. answered, "I don't know, and have come on purpose to know, and will know before I leave; and if you don't tell me I will give you in charge to the police till you do tell me." The prisoner again said “ You know." W. replied "I don't know; but from what I could see of the mare, it is the best of my belief that you had connexion with her." The prisoner then confessed. T. was close by all the time:Held, that as the confession was made after the inducement of a threat held out by W, when T.

Coram Jervis, C.J., Pollock, C.B., Parke, B., Coleridge, J., Platt, B., Williams, J. and Crompton, J.

was present, it was the same thing as if T. had used the threat; and that as T. wast he owner of the mare and likely to prosecute, he was a person in authority, so that the confession made after the inducement held out in his presence was inadmissible as evidence.

The following is the substance of a CASE stated by Cresswell, J., before whom the prisoner was tried at the Maidstone Assizes for the summer of 1853, on the charge of having committed an unnatural crime on

a mare.

The first witness for the prosecution was John Taylor, whose evidence (which was set out in the case) shewed that he had a stall in a stable at the George and Dragon Inn, and kept a mare there; that one evening he found the prisoner in the stall under circumstances which would lead to the suspicion that he had committed the offence charged in the indictment; and that he (Taylor) afterwards told Willard, the landlord of the inn. The material part of Willard's evidence was as follows:- I keep the George and Dragon. I went with Taylor to Crow's and saw the prisoner. I called him out and said I wished to speak to him. I said that I wished to know what business he had in Taylor's stable, as it was my fault leaving the outside door open, and he must have gone through my premises to get to Taylor's. He said "You know." I said "I don't know; and have come on purpose to know, and will know before I leave; and if you don't tell me I will give you in charge to the police till you do tell me." He said again "You know." I said "I don't know; but according to what I could see of the mare, it is the best of my belief that you had connexion with her." He said "I had; for God's sake say nothing about it." Taylor was close by at the time when I had this conversation with him. The prisoner was not defended by counsel, and no objection was made by him to the evidence, but the counsel for the prosecution called the Judge's attention to the nature of it before it was given, and his Lordship thought it best to receive the evidence and reserve the question of its admissibility.

The prisoner was found guilty, and judgment of death recorded. His Lordship

requested the opinion of this Court, whether the evidence of Willard was admissible or not.

The case was not argued by counsel.

PARKE, B.-We, who have considered this case, are all of opinion that the evidence of Willard to prove the confession was not admissible. First of all, there was a threat used by him, for he says to the prisoner" If you do not tell me I will give you in charge to the police." It is true that at the time the threat was uttered it was not precisely known what the charge was, but before the prisoner made any confession he is told by Willard that the charge against him is that he had had connexion with the mare. Willard, it may be objected, was not a person having any authority to hold out an inducement so as to render a confession made after it inadmissible. But the threat was made in Taylor's presence, who was there during the whole interview, and it was just the same as if it had been made by Taylor himself. Now he was the owner of the mare, and a likely person to prosecute for the offence. He was therefore a person in such a situation that any inducement held out by him would prevent the confession being receivable. We think that this confession was made under an inducement of a threat held out by Willard under such circumstances as to render it equivalent to a threat by Taylor himself.

A female servant being taken into custody by a policeman, on the charge of setting fire to her master's premises, expressed a wish to change her clothes. The policeman told her she might do so, but must remain in custody, and he gave her into the charge of a Mrs. A, a married daughter of her master, but who did not live in the house. Mrs. A. took the

⚫ Coram Jervis, C.J., Pollock, C.B., Parke, B., Coleridge, J., Platt, B., Williams, J. and Crompton, J.

girl apart and said to her, "I am sorry for you; you ought to have known better. Tell me the truth, whether you did it or no." The servant said, "I am innocent." Mrs. A. replied, "Do not run your soul into more sin, but tell the truth." The prisoner thereupon confessed-Held, that there was no inducement held out to render the confession inadmissible; and, secondly, that Mrs. A. was not a person in authority, competent to hold out an inducement which would prevent the reception of the confession in evidence.

The prisoner was tried, at the last Summer Assizes for Exeter (1853), before Martin, B., who stated the following CASE: -The prisoner was the servant of John Sandercock, and indicted for setting fire to a farm building belonging to her master, on the 2nd of June 1853. She was taken into custody by George Slee, a policeman, on the 15th of June. She was about to go away from him, but he prevented her, saying she was his prisoner upon the charge of this arson. She then desired to change her dress. He said she might do so, but that she must remain in custody; and he gave her into the charge of a Mrs. Allen. Mrs. Allen was a married daughter of her master, but did not live in her father's house, and had no controul over the prisoner by reason of any relation of master and servant. Mrs. Allen went with her into a lenny where her clothes were, but both Mrs. Allen and the prisoner considered that the latter was in custody. The following is the evidence of Mrs. Allen so far as it is necessary to raise the question:

"The prisoner was given in my charge by George Slee, the policeman. I took her into the lenny to change her clothes. The first thing I said to her was, 'Jane, I am very sorry for you, you ought to have known better; tell me the truth, whether you did it or no.' She said, 'I am innocent.' I said, 'Don't run your soul into more sin, but tell the truth.' She began to cry and sat down, and said that she took a crop of furze from the mow frame, and she only meant to burn the machine-house. She then went on to state how she set the place on fire, and made a confession of her guilt." The question for the opinion of the Court is, whether the evidence was legally admissible.

The case was not argued by counsel.