title-deeds, upon a count of an indictment for stealing lead, the property of A. B. ficed to a dwelling-house of the said A. B.

Case reserved for the opinion of this court by the chairman at the West Riding of Yorkshire Epiphany sessions 1861

The prisoner was tried before me at Christmas general quarter sessions of the peace for the West Riding of the county of York, holden at Wakefield on the 1st Jan. 1861, on an indictment; which charged him on the first count with feloniously ripping, stealing and carrying thirty-one pounds weight of leaden piping, the property of John Hope Shaw and others, then and there being fixed to a dwelling-house of the said John Hope Shaw and others.

On the second count with feloniously receiving the

same.

On the third count with stealing thirty-one pounds weight of leaden piping, the property of Thos. Wood, then and there being fixed to a dwelling-house of the

said Thomas Wood.

On the fourth count with feloniously receiving the last-mentioned lead.

The jury found a general verdict of guilty, and the prisoner was sentenced to nine calendar months' imprisonment with hard labour; but was admitted to bail until the opinion of the Court of Criminal Appeal could be had on the following case.

John Barff, a justice of the peace, proved that he managed the property from which the lead in the third count of the indictment was stolen for his nephew Thos. Wood, who resided in Patras; that he ordered all repairs, received the rents in his nephew's absence, and let the property to Mr. Waite, the present tenant; that prisoner called upon him on the Thursday morning before the robbery, and said he was repairing Captain Binstead's (a neighbour's) house, and that the spouts of Mr. Waites' house were out of repair, and asked witness's leave to repair them, as he could do it cheaply; that witness refused, and said that he should order his own workinen to do the work if repairs were required.

Counsel for the prosecution proposed to ask Mr. Barff whether Thomas Wood was owner of the premises in question.

The counsel for the prisoner objected to this question on the ground that the ownership would appear from the title-deeds, the best attainable evidence, as the deeds might show the property to be in trust for Mr. Wood, or that the mortgagee had the legal title; in either of which cases Mr. Wood might not be the legal owner, and these inferences were consistent with the evidence of Mr. Barff, or Mr. Wood might be himself an agent merely of a third party, Mr. Barff acting for him in his absence.

The evidence of the ownership of John Hope Shaw and others to the property in the first count mentioned was held by the court to be insufficient. And the court held, that the evidence as to the ownership of Waite's house was sufficiently proved to be in Thos. Wood.

The opinion of the Court of Criminal Appeal is requested, whether the evidence of Mr. Barff was sufficient to prove the ownership of the property in Thos. Wood, the prosecutor. J. G. SMYTH, Chairman. Campbell Foster, for the prisoner, now applied to have certain evidence given at the trial, which the chairman of the sessions had declined to insert, added to the statement of the case, and which it was contended showed conclusively that the property was not in Thomas Wood.

COCKBURN, C. J.-There is abundant evidence set out to show that the property is well laid to be in Thomas Wood. The objection is purely of a technical nature, and you now ask us to assist you in raising it by an amendment. We refuse to do so.

[C. CAS. R.

C. Foster. The evidence of ownership is not sufficient. There was some evidence at the trial that Wood was not the owner, and that Barff was merely the conduit-pipe through which the rents were received.

WIGHTMAN, J.-Where do you find it in this case? COCKBURN, C.J.-The objection is altogether beside the merits of the case. The prisoner stole the lead, and there is evidence before us that Wood was the owner.

WILLIAMS, J.-There is enough evidence of title to support an action of ejectment, and why not this conviction?

C. Foster.-In Rex v. Hutchinson, R. & R. 412, upon an indictment for stealing goods from a dissenting chapel, the second count described them as the property of a person who was employed to take care of the chapel, kept the keys of the chapel, and received a salary for so doing; and it was held that the goods could not be considered as belonging to the chapelkeeper, who was no more than a mere servant. So in this case it may be inferred that Barff and Wood were not the owners, but acted only as the agents for the owners. Waddy, for the prosecution, was not called upon to argue.

COCKBURN, C. J.-It appears to me that there is only one inference to be drawn from the circumstances stated. On the evidence before us the property appears to be well laid in Wood. The receipt of rents is primâ facie evidence of a seisin in fee. A man is not bound in such a case to produce his title-deeds. The point is too clear for argument. The rest of the Court concurring,

Conviction affirmed.

REG. v. PHILIP WILLIAM MAY. Embezzlement-Clerk or servant-Person collecting orders on commission.

The prisoner was informed by letter from the prosecutors that for all business he did for them, he would be allowed a commission. It was his duty to account to the prosecutors for any money he might receive for them immediately on the receipt of it: Held, that, upon this evidence, the prisoner was not shown to be a clerk or a servant within the 7 of 8 Geo. 4, c. 29, s. 47.

Case reserved for the opinion of this court by the chairman at the Epiphany Staffordshire sessions 1861. At the recent Epiphany sessions for the county of Stafford, Philip Wm. May was indicted, for that he being the clerk or servant of the Right Hon. Earl of Granville and others, feloniously embezzled on the 1st Aug. last 947.; and on the 22nd Sept. 377. 15s., the moneys of his employers.

The evidence showed that the prisoner was employed at Newcastle-upon-Tyne, in Northumberland, to obtain orders there for the sale of iron for the prosecutors, who carried on business at Hanley, in Staffordshire, as manufacturers of iron, under the name of the Shelton Bar Iron Company, at a certain commission upon the orders which he should obtain.

This employment took place under a letter from the manager of the prosecutor's works, of which the following is a copy :

:

"Shelton Bar Iron Works, near Stoke, Staffordshire, 19th Sept. 1859. "Mr. P. W. May.

The manager of the company, Mr. Roden, was not called as a witness, but the cashier of the company, who had nothing to do with the employment of such persons as the prisoner, said that a person who like the prisoner got orders on commission, was called an agent in their trade, and that he had no doubt but there was some other letter appointing the prisoner an agent for the prosecutors. There was no evidence of, or of a notice to produce any such letter. There was not any evidence to show whether the prisoner was employed for or by any other persons than the prose

cutors.

It was his duty to account to them for any money which he might receive for them immediately on receipt

of it.

On the 1st Aug. last, at Newcastle-on-Tyne, he received on account of the prosecutors the sum of 941. from persons to whom he had sold iron for them, and on the 2nd Aug. wrote from that place to them a letter of business, in which he did not mention the receipt of this sum, and on the 22nd Sept. last, at the same place, he received another sum of 371. 15s. on their account also; and on the 29th Sept. wrote from the same town another business letter to the prosecutors, in which he did not mention the receipt of this second sum. Being soon afterwards applied to on behalf of the prosecutors for these two sums, he wrote from the same place to them two letters which they received through the post-office in Staffordshire, and of which the following are copies :

"8, Malton-terrace, Newcastle, Oct. 28, 1860. "W. S. Roden, Esq.

“Dear Sir,—I am truly sorry and ashamed that I have taken such a liberty as to make use of money received on account of the Shelton Bar Iron Company,

but shall in a short time be able to remit the amount; therefore pray of you to pardon such conduct, and prevent any unpleasant proceedings, which I own would be my desert, and at saine time to myself and family. I should have replied to your several letters, but have delayed, expecting daily to make up the sum. Hoping that you accede to my request,

I remain, dear Sir, yours truly "P. W. MAY. “P.S. I inclose Mr. Toward's acceptance, which should have been sent before, but was mislaid on his leaving home, and only returned yesterday."

"8, Malton-terrace, Newcastle, Oct. 31, 1860. "Dea: Sirs,-I am sorry that such is the upshot of my connection with you. Pray give me a little longer, and my brothers at Smyd colliery, adjoining you, will no doubt put matters right. If my money does not come in the mean time legal proceedings would spoil it, and prevent me getting anything. Therefore, as my earnest desire is to replace all, I hope you will not pursue the course that you threaten.

"I note your remarks respecting orders in future, and hope that affairs may ultimately show a better aspect. I remain your obedient servant,

"P. W. MAY. "Messrs. The Shelton Bar Iron Company." This being the case for the prosecution, it was objected on behalf of the prisoner

First, that he was not shown to be a clerk or servant to the prosecutors within the meaning of the statute, &c.

Secondly, that no act of receiving or embezzling had taken place within the county of Stafford.

The court overruled both objections; but on the jury returning a verdict of guilty, postponed passing sentence until the next adjourned sessions, in order that the propriety of such ruling may be submitted to the Court for the Consideration of Crown Cases Reserved.

If either objection was valid, the verdict is to be set aside; if not, the verdict is to stand.

[C. Cas. R.

The prisoner is in gaol awaiting judgment.

LICHFIELD, Chairman of Quarter Sessions. COCKBURN, C. J.-The point is, whether the defendant was a clerk or servant within the meaning of the statute. This is the case of a person going about and getting orders for the prosecutors upon which he received a commission. He may be employed by fifty other persons to do the same for them in their business. We will hear the counsel for the prosecution.

the prisoner was a clerk or servant within the statute. Kenealy for the prosecution.-It is submitted that In Carr's case, Russ. & Ry. 198, the prisoner was employed by various houses as a traveller to get orders

and to receive debts and had a commission on such

orders and debts; he paid his own expenses and did not live with any of his employers or act in any of their counting-houses. S. and Co. were amongst his employers, and he was indicted for embezzlement of moneys he had collected for them. Upon a case reserved the judges held that the prisoner was their clerk within the statute. That case is not distinguishable from the present. There the prisoner was employed by several houses at the same time in a similar manner as defendant was in this case.

COCKBURN, C. J.-In the case of a traveller. he is under the control of his employers; he is bound to go here and there, and to do this and that according to orders. Here the prisoner was free to act or not, and not subject to any such control as seems to be involved in the relation of master and clerk or servant. A traveller may be ordered to go to Manchester or Newcastle, and to do this or that. It could not be contended that a person in a county town who procures persons to insure their lives with an insurance company, and receives a commission for so doing, is the clerk or servant of the company. He is an agent, not a clerk or servant. It must be estab lished that the relation of master and servant exists. Here the prisoner was simply a commission agent. Å traveller in once sense may be a clerk.

Kenealy.-Spencer's case, Russ. & Ry. 299, decides that it is sufficient to establish the relation of master and servant or clerk, if the prisoner is employed on one occasion only to receive money.

COCKBURN, C. J.-Suppose a merchant living in London writes to another abroad, and says, "Any orders you send will be shipped, and we will allow Is the latter a clerk of the mer you commission."

chant?

is

WILLIAMS, J.-On the other hand, if a person employed to get orders and to receive the money, and is paid a remuneration in respect of both services, I think that would bring the case within the statute according to many of the decisions, but here it is not stated tast the prisoner was engaged to receive money.

M'Mahon for the prisoner.-In Rex v. Goodbody. 8 Car. & P. 665, Parke, B. said, he wished tas Carr's case should be reconsidered. In Reg. v. Walker, 27 L. J. 207, M. C.; S. C. 8 Cox's Crim. Cas. 1, the prisoner kept a refreshment house, and was employed by the prosecutors to get orders for a manure, to col lect money and pay it over. He was paid by commission. He was to go about among the farmers to g orders, but no definite time was fixed for so doing. H was called the prosecutor's agent for the district. The prosecutors had a store under the prisoner's control. from which he supplied the manure upon the orders he obtained. In order to obtain the security of a guaran tee society for the prisoner's conduct, it was arranged that the prisoner should have a salary of 1 a year. The prisoner having got into arrears, was treated as a debtor for the amount. The prisoner fraudulently appropriated money which he received from customers, and gave a false account. It was held that the evi

REG. . HENRY MOORE.

Larceny-Finding property-Appropriation-
Felonious intention.

The prosecutor went to the prisoner's shop to have his hair cut, and he also made a purchase. His purse, containing notes and gold, were in a coat pocket, which was laid on a chair while his hair was being cut, and next morning he missed a 107. note fram his purse. The jury found that the note was dropped by the prosecutor in the shop, and that the prisoner found it, and that at the time he picked it up the prisoner did not know, nor had he reasonable means of knowing, who the owner was, but that he afterwards acquired knowledge of who the owner was, and after that converted the note to his own use; that the prisoner intended, when he picked up the note in the shop, to take it to his own use, and deprive the owner of it, whoever that owner might be, and that the prisoner believed at the time he picked up the note that the owner could be found:

Held, that upon this finding the prisoner was guilty of larceny.

Case reserved for the opinion of this Court, by Mr. Commissioner Kerr, at the Central Criminal Court :-At a session of the Central Criminal Court, holden on the 26th day of Nov. 1860, Henry Moore was tried before me on an indictment charging him in the first count with stealing a Bank of England note for 107, the property of David McGregor, and in the second count with receiving the same, knowing it to have been

stolen.

It appeared from the evidence that the prosecutor went to the shop of the prisoner to have his hair cut, which was done by the prisoner; that the prosecutor before leaving, purchased some hair-oil, and then left the shop. When he went to the prisoner's shop the prosecutor had in a clasped purse in the pocket of his great coat, which he carried on his arm, two 10%. notes (one of them the subject of the indictment) and some gold. He folded his great coat and laid it on a chair while his hair was being cut, and he paid for the hairoil from the purse in which the notes and gold were. Next morning he discovered the loss of the 10. note, alleged to be stolen, returned to the prisoner's shop, stated to the prisoner his belief that he had lost it in the shop, and offered him a reward of 34. if he would The prisoner told the prosecutor he knew nothing of the note, but in his statement before the magistrate he explained that he had given gold for the note the same day that the prosecutor lost it, but was afraid to explain this to the prosecutor lest he should be obliged to give up the note to him.

restore it.

Evidenco was called in support of the prisoner's statement, that he had given gold for a 107. note about the time of the loss by the prosecutor to a man in his (the prisoner's) shop, and it was proved that the pri

(a) This decision is quite inconsistent with that in Carr's case, I R. & R. 198, where a person taking orders and receiving payments on commission was held to be a servant. The judges here appear to have treated it as if the prisoner had been employed simply to procure orders, overlooking the explicit definition of the duty undertaken by him to account for any money he might receive for his employers immediately on the receipt of it. This appears to me to imply much more than the mere relationship of a commission agent. As by far the greatest number of frauds of this kind are committed by persons employed as was the prisoner, this defect in the law should now be amended, and conversion to his own use by the receiver of money for another should be made a misdemeanour.

[C. CAS. R.

soner, on the same day when the prosecutor inquired after the note, parted with it.

The jury found the prisoner guilty, but recommended him to mercy on the ground that they believed the note was dropped in the shop and found by him there.

Mr. Best, counsel for the prisoner, then contended that if the jury believed the prisoner to have found the note, they ought to acquit.

Whereupon I put certain questions to the jury, in answer to which they found

First, that the note was dropped by the prosecutor in the shop, and that the prisoner found it there. Secondly, that the prisoner at the time he picked up the note did not know, nor had he reasonable means of knowing, who the owner was.

Thirdly, that he afterwards acquired knowledge of who the owner was, and after that he converted the note to his own use.

Fourthly, that the prisoner intended, when he picked up the note in the shop, to take it to his own use, and deprive the owner of it, whoever that owner might be. Fifthly, that the prisoner believed at the time he picked up the note that the owner could be found.

I thereupon directed the verdict of guilty to be entered of record, and reserved for the opinion of this court the question, whether, upon the above findings, the prisoner was properly convicted. The prisoner remains in gaol awaiting judgment. R. MALCOLM KERR,

One of the Commissioners of the Central
Criminal Court.

8th Jan. 1861.

Sleigh for the prisoner.-It is submitted that this conviction ought to be quashed. In order to convict the prisoner of larceny, it was essential to prove these two ingredients: first, that the prisoner intended at the very time he took up the bank-note to appropriate it to his own use; and secondly, that he had then the means of knowing who the owner of it was. The merely taking up lost property, although with the intention to appropriate it, is not sufficient.

J

COCKBURN, C.J.-Your difficulty is, that the prisoner knows who the owner is before he converts the note.

Sleigh. That does not make it a felonious conversion. In Reg. v. Thurborn, 1 Den. C. C. 387, S.C. nom. Reg. v. Wood, 3 Cox Crim. Cas. 453, it was held that the knowledge, or means of knowledge, as to the owner must be co-existent with the fact of finding. A mere belief in the mind of the prisoner that the owner can be found is not enough. In Reg. v. Dixon, 1 Dearsley, C.C. 580, S. C. 7 Cox Crim. Cas. 35, where one question left to the jury was, whether at or after the time of the finding the prisoner believed that there was not reasonable probability that the owner could be traced; and the jury answered that they were of opinion that the prisoner did believe that the owner could be traced; Jervis, C.J., said: "It does seem to me that it was left to the jury to speculate upon what was in the mind of the man, without any facts to support that speculation."

WIGHTMAN, J.-In the present case the prisoner, at the time of finding the note, makes up his mind to deprive the owner, whoever he may be, of the property in it, and he does know who the owner actually is, before he converts the note. In Reg. v. Thurborn, Parke, B., in the course of his elaborate judgment, says: "If the prisoner had taken the chattel innocently,and afterwards appropriated it without knowledge of the ownership, it would not have been larceny, nor would it, we think, if he had done so knowing who was the owner, for he had the lawful possession in both cases, and the conversion would not have been a trespass in either." But here the original taking was not innocent.

Steigh. Whether the original taking was innocent depends upon whether the note was marked or not, or

Q. B.]

[Q. B.

Gray (amicus curia) mentioned Brown v. Compton, 8 T. R. 424, as an authority that no such action could be maintained.

The COURT ordered the prisoner to be discharged.

COURT OF QUEEN'S BENCH.

Tuesday, Jan. 29.

REG. v. JUSTICES OF SURREY. Highway-Road made at the expense of a railway company-Proposed dedication to public-Certificate of justices.

Justices, after the parish had resolved that a road proposed to be dedicated to the public was of sufficient utility, were called upon to certify that it was made in conformity to the Highway Act, 5 & 6 Will. 4, c. 50, s. 23. They refused to grant their certificate, being of opinion that it was but a part of a road, which in another part was not of the requisite width:

Held, that the justices were right in their decision.

T. Jones moved for a mandamus to certain justices of Surrey, commanding them to certify, pursuant to the 5 & 6 Will. 4, c. 50, s. 23 (Highway Act), that a highway had been made in a substantial manner and of the width required by the Highway Act.

It appeared that the road in question was made by the South-Eastern Railway Company adjacent to the station at Red-hill, Surrey; that the line of railway at this spot was formed upon an embankment which cut the road in question into two parts; the two parts communicated, however, with each other by a tunnel through the embankment. There was no objection to the width of the two parts of the road on either side of the railway, but the tunnelled part, though a carriage way, was not of the requisite width. The justices, when called apon to certify under the 5 & 6 Will. 4, c. 50, s. 23, as to parts not under the tunnel, declined to give their certificate, being of opinion that the whole of the three parts formed but one road, and the part under the Sunnel not being of the requisite width, and doubting their jurisdiction to certify as to part only, although a vestry meeting had been held, and a resolution passed that the road was of sufficient utility to justify its being kept in repair at the expense of the parish.

Sect. 23 of 5 & 6 Will. 4. c. 50, enacts, "That no road or occupation way made, or hereafter to be made, by and at the expense of any individual or private person, body public or corporate, nor any roads already set out, or hereafter to be set out as a private driftway or horsepath, in any award of commissioners under an Inclosure Act shall be deemed or taken to be a highway which the inhabitants of any parish shall be compellable or liable to repair, unless the [MAG. CAS.]

shall deem such highway not to be of sufficient utility to the inhabitants of the said parish to justify its being kept in repair at the expense of the said parish, any one justice of the peace, on the application of the said surveyor, shall summon the party proposing to make the new highway to appear before the justices at the next special sessions for the highways to be held in and for the division in which the said intended highway shall be situate, and the question as to the utility as aforesaid of such highway shall be determined at the discretion of such justices."

Jones.-The justices were wrong in their decision. The question is, whether or not, by reason of the road under the railway not being of sufficient width, the other roads on either side of the railway which are of sufficient width can be said to be highways within the meaning of the 23rd section? It is submitted that they can, and that the justices ought to have certified as to them.

BLACKBURN, J.-Is it not for the justices to be satisfied that they are highways?

CROMPTON, J.-The justices say that these three parts ought to form but one highway. The railway company cut up what ought to be one highway into two parts, with a narrow part between them. A mere certificate that so much, specifying the part by measurement, was according to the Act, would amount to nothing.

Jones.-There was no road where the way goes under the tunnel.

WIGHTMAN, J.-This was one continuous road, and the middle of it was not of the requisite width. You propose to have the justices' certificate for each end. Is that within the statute?

Jones. These parts are not the less highways in point of law on that ground. In Bateman v. Bluck, 21 L. J. 406, Q.B., it was decided that a public highway may in point of law exist over a place which is not a thoroughfare.

WIGHTMAN, J.-No doubt it is a highway, but is it such as that the justices are bound to give the certificate contemplated by sect. 23? Can you break up what is really but one highway into several parts, and require a certificate of justices for each part?

CROMPTON, J.-Can you ask them to certify that these parts are two distinct roads? They refuse, on the ground that they are but one road.

Jones.-The company cannot close up the part under the tunnel. It is dedicated. If it were closed up, the justices would be bound to give certificates for

2 R