C. B.] HOUNSELL v. SMITH AND OTHERS-JONES v. HOWELL. 4 H. & N. 67.) Or if you dig a hole abutting on a [Ex. with the concomitant circumstances, and the public KEATING, J.-I am of the same opinion. Kingslake, Serjt. contra.-The declaration states that the defendants were seised in their demesne as of fee of certain lands, &c. The quarry is worked by leave and licence of the defendants, the owners of the soil. The quarry does not pass so as to exclude the owner: (Muskett v. Hill, 5 Bing. N.C. 694.) There is an allegation that the defendants knew the state of the quarry, and the facts alleged in the declaration, by the words "well knowing the premises." It is alleged that to deviate from the road was dangerous, that the public have been accustomed to go over the same by the leave and licence of the defendants. Barnes v. Ward is the same in principle as this case; so also Jordia v. Crump, 8 M. & W. 782, and Blyth v. Tophum. Although the cases show that no action will lie for mere holes in a waste, it is admitted Notice that where an accident occurs from an excavation so near to a highway as to be dangerous, the rule is other-On a Sunday night a female who occupied a house, the wise. Fi mstone and another v. Wheeley and another, 2 D. & L. 203, agrees with Barnes v. Ward. He also commented on Sarch v. Blackburn, 4 C. & P. 297; Brock v. Copeland, 1 Esp.; Hardcastle v. SouthWestern Railway Company; Seymour v. Maddox; hoberts v. Great Western Railway Company, 4 C. B. N.S. 506; and Southcote v. Stanley. COURT OF EXCHEQUER. Reported by F. BAILEY, and JOHN DUNBAR, Esqrs., Barristers-at-Law. Nov. 8 and 24. - of action· - False imprisonment — Malicious trespass-7 & 8 Geo. 4, c. 30. property of the defendant, saw one of two men who were together throw a stone at the window; she sent for defendunt, told him, and described the two men, saying it was the one with the stick did it. The defendant followed and arrested both. The plaintiff was the man who held the stick and who had actually thrown the stone: Held, the defendant was entitled to notice of action under sect. 41 of the statute. Karslake was not called upon to reply. WILLIAMS, J.-I am of opinion that the judgment should be for the defendants. I will first consider the This was an action of trespass and false imprisondeclaration as if it did not contain the allegation of a ment. Plea, not guilty by statute 7 & 8 Geo. 4, c. right of passing over the waste, and I think on autho-30, ss. 24, 28 and 41 (Malicious Trespass Act). The rity and reason that the declaration, so considered, is case was tried before Byles, J. at the last Monmouthbad. The averments are, that before grievance the shire assizes. It appeared that the plaintiff and defendants were seised in fee of certain waste lands, another man knocked, at a late hour on a Sunday and that a quarry was worked there by the licence of night, at the door of a public-house kept by a tenant the defendants. The declaration states further that of the defendant; the landlady answered them from a the waste is wholly uninclosed, and that the quarry window, and refused to let them in or give them retherein is situated near two highways, and is dangerous freshments. Plaintiff commenced throwing stones at to all persons who should accidentally deviate from the the window and broke some panes of glass. The highways, or who should happen to cross from one road landlady sent for defendant, described the men, and to the other. The complaint is not that the quarry is said it was the one with the stick did it. Defendant there, but that it is dangerous to those who should followed and overtook the men; he arrested both, accidentally deviate or cross. &c. I am of opinion and conveyed them to a public-house, where that no duty was cast upon the defendants in this they were locked up for two hours, and next day case. The law has been long settled, and was lately taken before a magistrate. It appeared the plainconfirmed by the decision in the case of Blyh v. tit was the man with the stick, who actually Tophan, which fully settles the principle that if a threw the stone. No notice of action was given hole is made or continued near a highway, no action to defendant; on the trial it was submitted lies against owners of the land. Burns v. Ward no that he was entitled to it, and not having been given, doubt qualified the general doctrine so far, that where plaintiff could not recover. For the plaintiff it was a public nuisance is caused, there an action will lie contended that, as defendant's tenant had directed the against the person who created it. But in this case there arrest of two men, one of whom she knew was innocent, is nothing beyond a hole some distance from the highway, she could not suppose she was acting legally, and not so near as to amount to a public nuisance, though it is therefore did not come within the statute or give the so near that inadvertence would lead a person to fall defendant the benefit of it; that the arrest was not into it. It has long been established that these cir-justifiable, as the plaintiff was not "found committing cunstances give no right of action. The principle of the offence" by the party who arrested him. barnes v. Ward is, that if a road is dedicated to the was some suggestion of undue violence. The learned public, a precipice cannot be dug on each side so as to judge left three questions to the jury-first, did the render the road useless. A party cannot do that plaintiff commit wilful and malicious damage; secondly, without being guilty of a public nuisance. Now will did the defendant bona fide intend to arrest the man the allegations vary this case? "All persons having who did the damage, and to act under the authority of occasion to cross and pass over the said land have been the tenant; thirdly, did he use more violence than was accustomed to go over," &c., "without interruption necessary. The jury found all three in favour of the from, and with the licence and permission of, the defendant. The learned judge thereupon directed a owners," &c. There is no allegation of a right, but nonsuit, reserving leave to plaintiff to move to enter a the mere statement of a fact, that persons were verdict for 5l. allowed to go over without any complaint being made. But it cannot be said that the owners of the soil are to be held accountable for accidents suffered by such persons. Permission having been given, it must be taken There Smythies now moved for a rule to that effect, or for a new trial. The plaintiff was not found committing the offence by the person who arrested. The defendant did not intend to act under the statute. [CHANNELL Ex.] MEYERS AND ANOTHER. RAWSON-WYATT. WHITE. [Ex. Jan. 18.-WATSON, B. delivere judgment.-This was a proceeding by scire facias against the defendant upon a judgment obtained against the trustees of the society called the Bradford District Industrial Flour Mill Society, established under the Industrial and Provident Societies Act of the 15 & 16 Vict. c. 31, to B.-That is not necessary to a justification: Read v. Cohen, 13 C. B. 850.] The arrest was on a Sunday for an offence not indictable, and therefore could not be justified, even under a warrant : (Egginton's case, 2 Ell. & Bl. 717; stat. 29 Car. 2, c. 7, s. 6; Rex v. Myers, 1 T. R. 265.) The question of bona fides ought not to have been left to the jury: (Horn v. Thorn-legalise the formation of industrial societies, of which borough, 3 Ex. 846.) Cur, adv. vult. Nov. 24.--CHANNELL, B. delivered judgment.-In this case we are of opinion that there ought to be no rule. The action was for false imprisonment, the defendant justified under the stat. 7 & 8 Geo. 4, c. 30. [His Lordship then stated the facts.] The learned judge left to the jury the question whether the defendant had acted bona fide and under the belief that he had the authority of the female, his tenant, to arrest one or other of the parties, and they found for the defendant. The learned judge, as it appears to us, left the question to them properly, and in accordance with the authorities; and that being so, the finding disposes of that part of the application which goes to a new trial, and it disposes also of the rest of it, because the plaintiff could only be entitled to enter a verdict for himself, on the ground that every matter was found in his favour. The leave given by the learned judge was upon one point only, whether the plaintiff was "found committing" the offence within the statute. It was also objected that the arrest was on a Sunday. It is unnecessary for us to give an opinion on that point, or on the other points made on moving for the rule. It is enough to say we are of opinion that the defendant was entitled to notice of action, and as there is a plea on the record which raises the question, it is manifest the plaintiff cannot be entitled to set aside the nonsuit. There must therefore be no rule. Rule refused. Jan. 16 and 18. MEYERS AND ANOTHER v. RAWSON. Industrial and friendly societies—Statutes 15 & 16 Vict. c. 31, and 17 & 18 Vict. c. 25-Liability of members. A scire facias lies against the member of an industrial and friendly society, constituted under the Act of 1852, to levy the amount of a judgment recovered | against the registered trustees, there being no property of the society to answer the claim. This was a declaration on a scire facias calling on defendant to show cause why plaintiff's should not be at liberty to issue execution against him as a member, to levy the amount of a judgment recovered by them against the registered trustees of a society called "The Bradford District Industrial Flour Mill Society," established under the provisions of the Industrial and Provident Societies Act 1852. The writ recited that no registered officer had been appointed to be sued on behalf of the society pursuant to the Act, and that there was no property or effects of the society whatever to pay the amount of the execution, and that the defendant was a member of the society at the time when the debt in respect of which the judgment had been recovered was contracted, and still continues to be so. Demurrer and joinder. Mellish (with him Cockle) for the defendant.-The 17 & 18 Vict. c. 25, s. 5, makes the property of the society liable, but there is nothing in the Act to authorise the issuing of execution against an individual member, and the court will not give it unless the Act expressly provides for it. In the Banking and Jointstock Companies Acts the power is expressly given: (Harrison v. Timmin, 4 M & W. 510.) Field for the plaintiffs.-The 11th section of 15 & 16 Vict. expressly provides that the liability of members shall not be limited by the Act. Burton v. Tannahill, 5 E. & B. 800, is an express authority in our favour. Cur, adv. vult. the defendant was, and is alleged to be, a member; to which there was a demurrer. It was argued on the part of the defendant that there was no provision contained within the Act of Parliament to give any remedy against the individual members of the society, but that the only remedy on the judgment was against the funds of the society. By the statute of the 17 & 18 Vict. c. 25, it is declared "that it is expedient to vary the provisions of such laws (that is to say, the 15 & 16 Vict. c. 31, and 13 & 14 Vict. c. 115) in relation to these societies, so far as concerns the manner in which legal proceedings shall be carried on in any matter concerning any such society." By the 1st section it is enacted that the society shall sue and be sued in the name of the registered officer, and if there be no registered officer, then in the names of the trustees of the society." There being here no registered officer, the action is brought against the trustees. And then it provided by the 5th section that execution may go against the property of the society-which means the present property of the society, because it would cause inextricable confusion if you had to resort to, and find out, what property vested in the persons who were members at the time the contract was made. That is the object and purpose of the clause. It was argued that, according to the case of Harris v. Timmins, reported in the 4 M. & W. 510, they could not have execution against the members. That case only decides that against the nominal defendant, the registered officer, you cannot have execution, unless he is a member of that society. That was one of the classes of societies like joint-stock companies. It was argued that if he had been made a member of the society, then of course this nominal defendant would have been liable, like the others, to execution. The only question here is, what is the proper course to pursue as to members who are individually liable by scire facias. Now, it is quite clear, on looking at the 11th section of the 15 & 16 Vict. e. 31, this is put beyond all question, because it says, Nothing in this or the former Acts shall be construed to restrict in any way the liability of members of a society established under or by virtue or claiming the benefit thereof, to the lawful debts and engagements of the society." This case seems to have been, in fact, decided by the case of Burton v. Tannahill, 5 E. & B. 800, where it was held that no action could be maintained against the members of a society of this kind, the only remedy being by a proceeding against them under the 17 & 18 Vict., and in the course of the discussion Crompton, J. is reported to have said, "Why may there not be an action against the officer, and then a proceeding against the individuals to obtain the fruits of the judgment?" Wightman, J.: "Just as in the case of joint-stock companies." Crompton, J.: "That seems the very object of these enactments." That observation of my brother Crompton we perfectly agree in, and therefore we give judgment for the plaintiffs. Judgment for the plaintiffs. Feb. 13 and 14. WYATT v. WHITE. stable, if he found any of the informant's property, to arrest the plaintiff. The plaintiff was accordingly taken into custody, but the case was afterwards dismissed, and plaintiff brought this action. At the trial the judge held there was reasonable and probable cause for obtaining the search-warrant, but not for the arrest, if it was not necessarily involved in the other: Held, that the warrant to arrest was issued as a matter of course as a part of the search-wurrant, and the defendant having reasonable and probable cause for laying the information in the first instance, was not responsible in damages for the subsequent arres'. The declaration contained three counts. First, trover for bags, the property of plaintiff; secondly, false imprisonment; thirdly, malicious prosecution. Pleas:-Not guilty; not possessed; that certain bags, the property of the defendant, were mixed up with those of the plaintiff, and defendant committed the trespasses complained of in order to obtain possession of them. [Ex. On the search being made in the heap of sacks at the basin, a number of sacks and parts of sacks with the mark of defendant were found and taken possession of by the police. In the course of the afternoon the plaintiff came down to the basin; he was taken into custody and conveyed before a magistrate, who admitted him to bail. The next day he appeared before the magistrates at petty sessions; the defendant was examined, and in support of his information, after identifying the sacks as his property, stated that he lost about 1000 sacks a-year from their not being returned by his customers, but some had been stolen from him; nor had he lost any by any other means than their non-return by his customers; he could not state when the sacks in question had been in his possession. The magistrates dismissed the charge, and the sacks were eventually given up to the plaintiff. At the close of the plaintiff's case the learned judge intimated his opinion that there was reasonable and probable cause for the search-warrant, but not for the arrest. A verdict was eventually entered for the On the trial at Gloucester, before Willes, J., at the plaintiff, damages 201., thus divided on the first last summer assizes, it appeared that the defendant is count, 20s.; on the second count, 47.; on the third, a miller at Blakeney, and the plaintiff a marine store 15. A rule was subsequently obtained to enter the dealer at Colesford, in the county of Gloucester. On verdict for defendant on the second and third the 7th Feb. 1859 the defendant happening to be on counts. the quay at Lydney Basin, saw a large pile of junk or bags partially covered with tarpaulin; amongst them he saw one sack bearing his trade-mark filled with junk; he lifted the tarpaulin and saw several other of his sacks. He was informed the sacks had been sent to the basin by the plaintiff to be shipped to Bristol. The defendant then went to the police-station, and afterwards before a magistrate, when he laid the following information : Huddleston, Q.C. and Gray now showed cause.— There was an entire absence of reasonable and probable cause for the proceedings of defendant. The plaintiff was in the habit of dealing in old sacks and bags. There was no disguise about the transaction, the sacks were placed openly on the quay. The application for the search-warrant supposes that the party has possession of the property criminally. He would not grant the warrant unless it was stated that the party minal means. What reason had defendant to suppose the sacks were stolen? Millers lose sacks every day, and there was no justification for his imputing a crime to the plaintiff. Even if there was reasonable and probable cause for the search-warrant, there was none for the arrest, and defendant is responsible for it. The amount of damages was settled by the judge, and the question of malice was not left to the jury, but is still open to the court. They cited Webb v. Ross, 4 H. & N. 111; 32 L. T. Rep. 282; Elsee v. Smith, 1 Dow. & Ry. 97; 2 Hale's Pleas of the Crown, 150. "Gloucestershire, to wit.-The information and com-holding the goods had got possession of them by criplaint of Richard Watts White, taken upon oath this 7th day of February, in the year of our Lord 1859, before the undersigned, one of her Majesty's justices of the peace in and for the said county of Gloucester, who says he has reason to suspect, and does suspect, that some sacks and pieces of sacks, his property, have been stolen, and are now lying at the Lydney Basin, in the parish of Lydney, in the county of Gloucester, and are in the possession of Thomas Wyatt, of Coleford. "(Signed) RICHARD WATTS WHITE. "Taken and sworn, &c." The magistrate thereupon issued the following war rant : are "Gloucestershire to wit.-To the constables of the county of Gloucester, and to all other peace officers in the said county of Gloucester. Whereas information hath this day been laid before the undersigned, one of her Majesty's justices of the peace in and for the said county of Gloucester, by Richard Watts White, miller, that he has reason to suspect, and does suspect, some sacks and pieces of sacks his property have been stolen, and are now lying at the Lydney Basin, in the parish of Lydney, in the county aforesaid. These therefore to command you in her Majesty's name forthwith, with proper assistance, in the daytime to enter such premises, and there diligently search for the said goods, and if the same or any part thereof shall be found upon such search, that you bring the goods so found, and also the body of Thomas Wyatt, of Colesford, who claims the said property; and oath now being made before me sub tantiating the matter of such information, these are therefore to command you in her Majesty's name forthwith to apprehend the said Thomas Wyatt, and bring him before some or one of her Majesty's justices in and for the said county, to answer to the said information, and to be further dealt with according to law. Given under my hand and seal, this 7th day of February, in the year of our Lord 1859, at Lydney, in the county aforesaid." "(Signed) THOMAS ALLAWAY." Pigott, Serjt. and Powell in support of the rule.— The learned judge was clearly of opinion there was no evidence of malice, and did not reserve that question. The evidence showed ample reason for the search-warrant, and the judge ruled there was reasonable and probable cause for it. The defendant was not responsible for anything else. The warrant for the arrest was the act of the magistrate. It is usual, when a search-warrant is granted, to order the arrest if the goods are found: (Hale's Pleas of the Crown, 150; Burn's Justice, tit. "Search, Warrant.”) Cur, adr. vult. Feb. 14.-BRAMWELL, B. delivered judgment.—I have spoken to my brother Willes about this case, and he reports that the question of malice was not reserved. The learned judge ruled that there was an absence of reasonable and probable cause for causing the plaintiff to be apprehended; but that there was no absence of reasonable and probable cause for causing the search-warrant to be issued. The truth is that he was under the same impression (which turns out to be erroneous) as I believe we were all here, and the counsel were also till the matter came to be looked into, that the application for the search-warrant does not (as it now turns out we all thought it did) involve the application for a warrant to arrest. It turns out that the application for the one involves the app ication for the other, and upon explaining this to my brother Willes, he said that he had only expressed an opinion Ex.] WYATT . WHITE-REG. v. WILLIAM HUGHES. [C. CAS. R. CROWN CASES RESERVED. Reported by JOHN THOMPSON, Esq., Barrister-at-Law. enough for the decision of the case for the moment, | under that tarpaulin would be found some of his proand he would consider it as though he had expressed no perty. He found one or two sacks, no doubt his proopinion upon it at all. That being so, the question is perty, bearing his trade-mark upon them; and in one reduced to this-Is there an absence of reasonable and sack, if not two, he finds strips of sacks, evidently probable cause shown for the information which the strips of new sacks; and with marks upon them defendant swore before the magistrate? Because that sufficient to enable him to distinguish those as his prois what he has done. All that follows from it is the perty. I think that there was no want of reasonable consequence of that. But the question is, whether an and probable cause such as would entitle the plaintiff absence of reasonable and probable cause for that is to maintain the action upon the second count, shown, and I am of opinion that an absence of reason- | either for the 4. in respect of the search-warrant, able and probable cause for laying that information is not or for the 15. in respect of the apprehension shown. It is not necessary to go into minute details that took place. The result, therefore, is, as my upon the matter, but I will say this-the defendant is a brother Bramwell has said, that the verdict will stand miller, and he swears that he loses a thousand sacks a- for the sum of 17. Rule absolute. year. He says, indeed, that he only loses them by his customers not returning them. Hence it was argued, very forcibly, how could he say they were stolen from him under those circumstances? He does not say they were stolen from him. It was also urged, if he cannot say they were stolen from him, how could he say they (Before ERLE, C.J., WIGHTMAN and WILLIAMS, JJ., were stolen from anybody else? To which the answer is, he does not say they were stolen, but believes they were. The question is, whether it is a wholly unreasonable belief for a man who has a thousand sacks not returned to him from his customers to entertainwhether it is unreasonable for him to think, when he sees a quantity of sacks, some of which are new-not many, perhaps-cut up into waste, and being made away with for the purpose of being turned into paper, that they are his sacks. The new ones are of importance, undoubtedly, in th's matter, because, if they had been old ones, and unfit for use, there would have been no ground for thinking that any of those had been stolen; but some of them being new, it seems impossible to say that there was an absence of reasonable and probable cause. All the rest of the deposition is true-Held, that the conviction was good, the 11 g 12 Vict. namely, that they were on the wharf, and that they were in the custody of the plaintiff. For these reasons, therefore, it appears to me that the plaintiff has not shown an absence of reasonable and probable cause for the information of the defendant, and that being so, the latter is entitled to make this rule absolute-the effect of which is, as I understand, that the verdict stands for 14. Saturday, Jan. 21. WATSON, B. and HILL, J.) REG. . WILLIAM HUGHES, Felony-Accessory before the fact-Convictin after acquittal of the principal charged-11 & 12 Vict. c. 46, s. 1-General verdict on counts for larceny and receiving. The first two counts of an indictment charged A. and B. with stealing, and the third charged B. with feloniously receiving. A. was acquitted, no evidence having been offered against him, that he might be a witness against B. Upon his and other evidence which proved that B. was an accessory before the fact of the stealing, the jury found a general verdict of guilty against B., which was so entered up: c. 46, s. 1, making an accessory before the fact a principal felon, and that therefore the conviction of the prisoner is not now a condition precedent to the conviction of an accessory before the fact, and that there was no inconsistency in an accessory before the fact being also a r ceiver. Case reserved by the Recorder of Manchester. At the Court of Quarter Sessions holden in and for the city of Manchester, in the county of Lancaster, on the 2nd Jan 1860: John Hall and Henry Hughes were tried before me on the annexed indictment; both pleaded not guilty. After the ju y were charged the learned counsel for the prosecution said he did not propose to offer any evidence against Hall, and applied to have him acquitted in order that he might be examined as a witness; and on his assuring me that in his judgment that course would serve the ends of justice, I acceded to it, and he was acquitted and called as the first witness. CHANNELL, B.-I am entirely of the same opinion. Upon the point of malice I shall say nothing; first, because I understand from my brother Bramwell, after consultation with my brother Willes, that it was not reserved, and in the next place it is not necessary in the view I take of this case. I certainly was under the impression at first, during a part of the argument (and which appears to have prevailed with my brother Willes), that there was a distinction between this warrant, so far as it authorised them to search the premises where the sacks were, and so far as it authorised the apprehension of the party named in it. He had been thirteen months in the service of the But it appears to me, upon looking into the autho-prosecutors, and according to his evidence Hughes first rities in Burn's Justice, and especially looking into Hale's Pleas of the Crown, that the magistrate was not only at liberty to issue, but would issue as of course, a warrant with this double aspect-if I may use such an expression. I do not understand it to be an application for a warrant to arrest a person on a charge of felony, and be brought before a magistrate to be dealt with according to law. A warrant in that form is warranted by the authorities. It seems to me that the question is, was there a want of reasonable and probable cause for the information which the defendant laid before the magistrate? Now I agree that all the circumstances are entirely explained by what afterwards occurred, and that the plaintiff is involved in no imputation whatever; but we are to look at what determined and justified the impression on the mind of the defendant the moment before he laid the information. He sees a tarpaulin; the use of it is well explained, but still he sees enough to be satisfied that solicited him to rob his master on the 20th or 22nd of Nov., asking him if he could get him a few pounds of fents, and he would keep it dark, and to bring them to him at any time, and they would be right. That accordingly the next day he took eight pounds of patchwork, which he had stolen from his masters, to Hughes, who gave him half-a-crown for it, the selling price being 7. per lb. This patchwork was afterwards found in Hughes's cellar (his place of business), and he stated that he had got it from Hall. That on the Monday following he was passing Hughes' place, who called him in and asked if he could get him any more of those fents; he said he could, and it was arranged between them that a person of the name of Lowe, who was called into the cellar, should go next day to the warehouse of Hall's masters 100, Moseley-street, and bring the parcel he was there to get from Hall to Hughes. Lowe, who did not appear to be aware of the nature of the transaction between Hall and Hughes, forgot his appointment. Hall went the same afternoon to inquire why the man had not come; he was sent for to Hughes' place, and said he had got drunk and forgot it, and it was then arranged between Hughes and Hall and Lowe, that Lowe should go to the warehouse of the prosecutors, 100, Moseley-street, next morning, the 30th Nov., at half-past eight, and there receive a parcel to be given to him by Hall, and bring it to Hughes, and Hughes directed him to bring the parcel to his cellar (which was his place of business and was under a public-house), but if he was not in when he came with it, he was to take the parcel into that public-house and leave it there for him (Hughes) until he returned. On the morning of the 30th Nov., Hall opened the warehouse at a quarter past eight, and found Lowe there waiting for him, and ab ut a quarter to nine Hall gave him a bundle of fents that belonged to his masters, and he went away with them. A policeman on duty in the neighbourhood saw Lowe carrying this bundle on his shoulder, followed him and saw him take it into the public-house over Hughes' cellar, which was then shut, and on going into the kitchen of the public-house he saw the bundle lying on the kitchen-table there, and from the account given of it by Lowe he took it to the station. Another policeman took immediate possession of Hughes' cellar, and waited till he came in, and asked him if he had sent a man for any goods that morning; he replied, "I have sent a man for some prints to 100, Moseley-street." He was then taken into custody. The patchwork or fents found in Hughes' cellar, and which he said he had got from Hall, and the bundle of prints brought by Lowe from 100, Moseley-street, to the said public-house, were identified by the prosecutors as their property. Mr. Wheeler appeared as counsel for Hughes, and cross-examined the witness, and addressed the jury on behalf of Hughes, contending that they ought utterly to disregard everything that Hall had said, and acquit his client. COPY OF INDICTMENT. [C. CAS. R. City of Manchester, in the county of Lancaster, to wit.-The jurors for our lady the Queen upon their oath present, that William Hall and William Hughes, late of the city of Manchester, in the county of Lancaster, on the 22nd day of November, in the year of our Lord 1859, at the city aforesaid, and within the jurisdiction of this court, and within the space of six calendar months from the first to the last of the several acts of stealing charged in this indictment, ten pounds weight of cotton fents, of the property of William Henry Smith and another, then and there being found, feloniously did steal, take and carry away, 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.-And the jurors aforesaid, upon their oath aforesaid, do further present that the said William Hall and William Hughes, on the 30th day of November in the year aforesaid, and within the jurisdiction of this court, and within the space of six calendar months from the first to the last of the several acts of stealing charged in this indictment, 18lbs. weight of cotton fents, of the property of the said William Henry Smith and another, then and there being found, feloniously did steal, take and carry away, 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. Third count.-And the jurors aforesaid, upon their oath aforesaid, do further present that the said William Hughes afterwards, to wit on the same day and year aforesaid, at the city aforesaid, in the county aforesaid, and within the jurisdiction aforesaid, the property aforesaid, before then feloniously stolen, taken and carried away, feloniously did receive and have, he the said William Hughes then and there well knowing the same to have been feloniously stolen, taken and carried away, 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. William Hall, not guilty. Dr. Wheeler (Hopwood with him) for the prisoner. I summed up the evidence, and told the jury that they alone were to decide on the credit to be given to the witnesses, but that, if they believed Hall to the full-First, the prisoner Hall having been acquitted of the extent of his evidence, Hughes was a guilty participator in both larcenies. That if they doubted about that, they would have to consider whether they were or were not satisfied that he received the property knowing it to have been stolen. And with reference to the fact of receipt of the second parcel of goods which Lowe was sent for by Hughes, with directions in case he should be out when he came to leave it for him at the said public-house, and Lowe having done so, I told them that was as much a receipt by him as if it had been brought to him in his cellar and left there. If two per larceny, and Hughes having been found guilty on evidence of being an accessory before the fact, it is contended that that conviction cannot be supported. The finding is inconsistent, for if Hall did not commit the larceny, how could Hughes be an accessory? and there was no evidence to support the charge against Hughes except as an accessory before the fact. sons are indicted for conspiracy, and one be acquitted, the other cannot be convicted. The accessory shall not be constrained to answer to his indictment till the principal be tried (9 E. 4, 48 a); but if he will waive that benefit, and put himself upon his trial before the principal be tried, he may, and his acquittal or conviction upon that trial is good: (Stamf. P. C. lib. 1, c. 49 f, 46 b.) But it seems necessary in such a case to respite judgment till the principal be convicted and attaint; for if the principal be after acquitted, that The question for the opinion of the court is- conviction of the accessory is annulled, and no judgWhether, as the facts showed that Hughes, if ment ought to be given against him, but if he be acguilty at all of the larceny, was guilty only as an quitted of the accessory that acquittal is good, and he accessory before the fact, and Hall the principal having shall be discharged:" (1 Hale P. C. 623.) been acquitted, I ought not to have told the jury that 11 & 12 Vict. c. 46, s. 1, which enacts "that if any Hughes was entitled to his acquittal on the counts for person shall become an accessory before the fact to any Larceny, and that they were to confine their attention felony, whether the same be felony at common law to the count for receiving only; and if I ought so to have or by statute, such person may be indicted, tried, condirected them, whether, on this general verdict, judg-victed and punished in all respects as if he were a ment can now be pronounced on the count for The jury retired at seven o'clock to consider their verdict, and I left the court. They some time afterwards gave a general verdict of guilty, which was so entered. They strongly recommended the prisoner to mercy. receiving. Hughes was admitted to bail to appear and receive judgment when called upon. ROBT. B. ARMSTRONG, Recorder of Manchester. The principal felon," simply alters the form of pleading only. The old law stands as before: "If A. be arrested, or in prison for felony, and B. rescues him, or the gaoler suffers him voluntarily to escape, though this be a distinct felony in B. the rescuer, and in the |