COURT OF COMMON PLEAS.-MICH. TERM.
LOMAX V. LANDELLS.-Nov. 17.

Bill of Exchange - Description-Christian Name

Pleading-Title-Payment.

"W

Williams by the initial letter "I" is insufficient (Stephen on Pleading, 338, 5th ed.) And unless th omission be excused by averment, it is ground of specia demurrer. (Appelmans v. Blanche, 14 Mee. & W. 154) The matter of excuse in the plea is not traversable Assumpsit on a Bill of Exchange by Indorsee against but, in that averment, "I" is called the initial letter Acceptor. Plea, that the Indorsement was in Blank; which shews it is not the Christian name. [Maule, J that, at the Time the Bill became due, it was in the The defendant uses the words "said initial letter. Hands of I. Shakespear Williams, as the lawful No initial letter has before been mentioned. If yo Holder for Value, who, while he was the Holder, and assume that he means "I," you assume the point in in pursuance of an Agreement made with the Defend- dispute.] In Nash v. Collyer, (17 Law Journ., N.S., C.P. ant, and after the Bill was due, and before the Plain-91), this Court held, that the initial letter "W" wa tiff's Possession, and before the Commencement of the a defective statement of a name. And Lord Denman Suit, accepted of the Defendant 101. in Part Payment in delivering judgment in Levy v. Webb and Gatty v of the Bill, and a Promissory Note at Three Months Field, (15 Law Journ., N. S., Q. B., 410), says, for the Residue, which Note the Defendant paid when must presume that every person has a Christian name. due. Averment, that the Defendant had no Knowledge If so, it must, at least, consist of two letters. [Maule of the first or Christian Name of the Party designated J.-Not necessarily. A Christian name must at leas as I. Shakespear Williams otherwise or to a greater consist of a word. Every vowel is a word; but a con Extent than as set forth by the said Initial Letter, &c.: sonant is not, for it cannot be pronounced without the -Held, on special Demurrer, first, that the Plea suf- aid of another letter, a vowel.] Secondly, the plea i ficiently disclosed Williams's Title to the Bill, and also defective in not shewing that I. Shakespear William a Payment to him in discharge of the Bill. had a legal interest in the bill at the time he held it Secondly, that it sufficiently described him as I. Shakespear Though the indorsement is stated to have been in blank Williams. the plea does not state that the drawer delivered the bill to I. Shakespear Williams. [Maule, J.-The per son who has a bill of exchange to carry or deliver is no a lawful holder of it in the usual acceptation of the term.] The objection may be taken on special de murrer. [Maule, J.-The defendant is not stating his own title to the bill, but the title of the plaintif through a third party; and when he says this third party was the lawful holder, he means after indorsement.] Thirdly, the receipt of the 107. and of the promissory note for 157. 15s. did not discharge or suspend the remedy of Williams on the bill: it is no defence, except as to 101. Consistently with the plea, the plaintiff might have become the lawful holder for value before the promissory note was due. And, further, it is not stated, that, at the time of the payment of the promissory note, Williams was the holder of the bill of exchange, and entitled to receive the money then due thereon. If this is a plea of payment, it is insufficient, as payment (on special demurrer) ought specifically to be alleged. [Maule, J.-The allegation is, that he has so paid as to prevent the payee from recovering upon the bill.] Then, what is to answer the damages? [Maule, J.-The promissory note was given "for and on account of the residue of the said bill, and the interest, charges, and claims in respect thereof,” that is, in respect of the bill.]

Assumpsit on a bill of exchange drawn by one Hine, accepted by the defendant, and indorsed by Hine to the plaintiff. Third plea, that the indorsement by Hine was an indorsement in blank; and that, at the time the bill became payable, and thence till the agreement thereinafter mentioned, the bill was in the hands of one I. Shakespear Williams, as the lawful holder and owner thereof for value, who was then entitled to receive the amount from the defendant; and that, after the bill became due, and whilst the said I. Shakespear Williams was the lawful owner and holder thereof, it was agreed between the defendant and I. Shakespear Williams, as the holder of the said bill, that the defendant should pay to I. Shakespear Williams part of the amount of the said bill, to wit, the sum of 107., and that the defendant should then make and deliver to the said I. Shakespear Williams, his, the defendant's, promissory note, payable to the order of the said I. Shakespear Williams, for the sum of 157. 15s., payable three months after date, on account of the said bill, and all interest, charges, and claims whatsoever in respect of the said bill. The defendant then averred, that afterwards and whilst Williams was the lawful holder, and after the bill became due, and before the plaintiff became possessed of it, or had any right or title in respect of it, or any part of the amount thereof, in pursuance of the agreement, the defendant paid Williams the 107., and delivered to him the promissory note for 15l. 15s., and paid it when it became due; and that the said bill was overdue when the plaintiff first took and received the same, and before the plaintiff ever had any right in or to the bill, or any part of the amount thereof. Averment, that the defendant hath not, nor has he had at any time, knowledge of the first or Christian name of the party hereinbefore designated as I. Shakespear Williams otherwise or to a greater extent than as set forth by the said initial letter, nor hath the defendant been able to obtain any knowledge of the said first name otherwise or to a greater extent than as aforesaid, although he has made due and proper inquiry in that behalf. Verification. Special demurrer, assigning for cause, that the plea was an argumentative, or, at all events, an insufficient plea of payment; that no sufficient excuse was stated for the omission of the first Christian name of the person designated as I. Shakespear Williams; and that the title of I. Shakespear Williams to the bill was not shewn with sufficient certainty. Joinder in demurrer.

Hawkins, (Barnard with him), in support of the demurrer. First, the description of I. Shakespear

Corrie, in support of the plea, was desired to confine his argument to the question of misnomer.—Even supposing "I" to be the initial letter, the excuse is sufficient if the Christian name be not within the knowledge of the party pleading. “An allegation to that effect should be made, and such allegation will excuse the omission of the name." (Stephen on Pleading, 339). And for this is cited Rowe v. Roach (1 M. & S. 304) and Buckley v. Rice, (Plowd. 128 a). The latter case gives the principle, "That the law will not force a man to shew that which he cannot." If the words "said initial letter" refer to the letter "I," if that be the whole of the Christian name, it is the final letter as well as the initial.

Hawkins, in reply.

COLTMAN, J.-We are not willing to give way to the objection raised by this demurrer; and in a matter not touching the merits of the case, the Court have, on former occasions, resorted to a subtlety to do justice. Here the letter "I" may possibly be a Christian name. MAULE, J.-I think the letter "I" in this plea must be taken to be the Christian name. It is not

necessarily the initial letter-it may constitute the whole name.

WILLIAMS, J., concurred.-Judgment for the defend-between two and three miles distant from the buildings

two. This, I think, is an erroneous conclusion, and the appellant is entitled to be registered as a voter in respect of his occupation of this building.

MAULE, J.-I have sufficiently intimated my opinion in the course of the argument.

WILLIAMS, J., concurred.-Decision reversed.

COURT OF EXCHEQUER.-HILARY TERM.
SMITH V. ROBERTS.-Jan. 13.

County Court-9 & 10 Vict. c. 95-Suggestion—Judg-
ment by Default.
An Application for a Suggestion to deprive a Plaintiff
of Costs under the 9 & 10 Vict. c. 95, s. 129, cannot
be made without a previous Application to set aside
Judgment if signed.

was either by a common staircase leading from the entrance to the factory, (to which there was a door which was never fastened), or by separate outside staircases, or by doors opening into the yard. Each tenant had his COLTMAN, J.-I am of the same opinion. The subown spinning-machine, and also the exclusive use of his stance of Mr. Creasy's argument is, that, as the stable room, and the key to the door thereof. The Court may be occupied by one person, and the coach-house held, that the occupier of each room was the exclusive by another, and as either, if of sufficient value, would occupier of a building, within the Reform Act. So, in confer a vote, the two cannot be coupled so as to confer Whitmore v. Bedford, (Id. 9), a cow-house or stable that right. It seems to me, that the cases he has cited was held to be a building within the same section. shew just the reverse. In the case of the factory, which Then, applying the principle laid down in Dewhurst v. was let out to different tenants, each tenant was held to Feilden, (7 Man. & Gr. 183), that two distinct build- be the occupier of a building so as to have the right to ings cannot be joined together in order to constitute a vote; but it is impossible to contend, that a tenant ocright to be registered as a borough voter under this sec-cupying the whole would not have been entitled to tion, it is clear that the decision of the revising barris- a vote. The test he submits to us is not the one ter was right. [Maule, J.-In the case of Wright v. applicable to this case. The cases as to burglary The Town-clerk of Stockport, if one person had occupied are not strictly analogous, for refinements have been the whole of the rooms in the factory, he would have introduced in some of those cases which should not be had a vote.] In the law of settlement it has been held, applied here; undoubtedly they are applicable as far as that a pauper might gain a settlement, under the 6 Geo. they go, for buildings under the same roof have been 4, c. 57, by renting two or more descriptions of tene- held to be one, even where the principle of in favorem ment, the rent of each being under 10., but the rent vitæ has applied, and the maxim of the law, that we are of the two together amounting to that sum, as well to favour the party who is brought in peril. But, in as by renting one distinct and separate tenement of spite of that, we hold buildings under the same roof to the value of 10l.; (Reg. v. Wooton, i Adol. & Ell. 232); be part of the dwelling-house. but the law relating to that subject is not applicable to a case under the Reform Act any more than the law relating to burglary. [Maule, J.-If it is necessary, in order to constitute these one building, that there should be a door between the two, then, in prisons and convents, where frequently the only communication between two portions of the building is by a grating, the portions on the one side of the grating and on the other are to be considered as distinct and separate buildings.] WILDE, C. J.-It seems to me, that there is no great difficulty in this case. These places originally, it appears, formed one building; they are in a court-yard, and adjoining one another, and there is a room over, common to both, but which is now separately occupied. The circumstance that it is necessary, in order to pass from the stable to the coach-house, or from the coach-house to the stable, to come out into the yard, is no more than happens in the case of almost every gentleman's coach-house and stable, for it is seldom that there is more communication between the two than by a window, which is sometimes found, for the purpose of giving light. It seems to me, that the circumstances stated in this case shew that this coach-house and stable constitute one building in point of fact, and I think also in point of law. The learned counsel, who argued for the respondent, very properly observed, that the revising barrister has called them two buildings, but it seems to me, that he has stated facts which prove them to be but one; the reason for his so calling them is, that there is no door between. The Court have, on former occasions, denied the strict application of the rules relating to cases of burglary and settlement; which cases, though useful in throwing light upon such as the present, are not strictly analogous. The objects of the law on those subjects were very different from the objects contemplated by the present statute; so that many observations which apply to cases arising under the one may be inapplicable to those arising under the other. The only question here is, do the coach-house and stable constitute one building? By what test should it be decided? Is it by the simple test, whether there is a door between? If that be not the test, it is difficult to see how any doubt can arise in this case. It appears to me that that is not the true test; but that the facts of there being a common roof, and a common chamber, and an internal communication by a window, shew that these premises form but one building, and that is all that is necessary to confer a vote. The revising barrister has drawn a conclusion, that, within the meaning of this act of Parliament, they form

Quære, whether that Section applies to the Case of Judgment by Default?

This was a rule to enter a suggestion to deprive the plaintiff of costs under the 129th section of the County Courts Act, 9 & 10 Vict. c. 95, on the ground that he ought not to have sued the defendant in a superior court. It was an action of trespass for assault and battery, in which the defendant suffered judgment by default, and a writ of inquiry was executed before an under-sheriff, when the damages were assessed at 13., the under-sheriff certifying under the 3 & 4 Vict. c. 24, that the trespass was wilful and malicious. The plaintiff's costs were taxed accordingly, judgment signed and execution issued in vacation; whereupon a judge's order was obtained to bring the proceeds of the execution into court and stay the proceedings until term.

Bovill shewed cause, and argued that an application for a suggestion to deprive of costs under the 9 & 10 Vict. c. 95, cannot be entertained while the judgment stands, and consequently that the defendant ought first to have moved to set aside the judgment which had been_signed. He relied on Soames v. Cooper, (18 Law Journ., N. S., Exch., 38), as an authority in point, and also referred to Godson v. Lloyd, (+ Dowl. 157). [Parke, B., mentioned Peterson v. Dair, (12 Jur. 562).]

be

Hawkins, contra.-The judgment being regular in itself there is nothing to impeach it until the suggestion is placed on the record, and if that suggestion remains untraversed the entry of the judgment may amended in accordance with it. If it were necessary to set aside the judgment before entering the suggestion this inconvenience would follow, that the suggestion might be traversed and found by the jury to be untrue, and yet on its assumed truth a regular judgment would have been set aside. Bond v. Bailey, (3 Dowl. 808),

decided under the London Court of Requests Act, the 39 & 40 Geo. 3, c. 104, is in point; while in Soames v. Cooper cited by the other side the point was not fully argued. [Parke, B.-In Bond v. Bailey the only point decided was that the application for the suggestion was not too late in the term following the trial; and there would be a great failure of justice if it were, as the ap-ley, while living in Jersey, had, in March, 1848, deliplication could not be made before. But the only question here is on the form of the application, name ly, whether you must not first move to set aside the judgment and execution, as the suggestion would be nonsense on a record containing an entry of judgment and costs taxed for the other side.] In Baddeley v. Oliver (1 Dowl. 598) the present objection was taken with several others, and decided in our favour. In Brook v. Tidy (10 Jur. 967) also, where a rule was obtained for a new trial in a cause tried before a sheriff and on which judgment had been signed; Patteson, J., in the Bail Court held it unnecessary that the rule should make any reference to the judgment.

POLLOCK, C. B.—This rule must be discharged. It does not distinctly appear from Baddeley v. Oliver that the rule there might not have been to set aside the judgment and enter a suggestion to deprive of costs. But supposing it not so, and that that case is an authority in point for the defendant, Soames v. Cooper is directly the other way, and is a later decision, come to by ourselves, which we are not disposed to overrule. PARKE, B.-It is a very old rule of practice, that where after final judgment has been signed you seek to set aside a prior step for irregularity, you must move to set aside the judgment.

ALDERSON and PLATT, BB., concurred.

Hawkins then asked that the rule might not be discharged with costs; the decision of the Court proceeding on Soames v. Cooper, which was not reported at the time when it was moved.

Quarter Sessions for the borough of Plymouth, before W. C. Rowe, Esq., Recorder, on an indictment charging him with stealing a mare, the property of James Pugsley, and was by the jury found guilty. The judg ment was respited, subject to the following case:-It appeared in evidence, that the prosecutor, James Pugsvered a horse and the mare in question to the keeping of the prisoner, who was a farmer and horse-dealer living at Loddiswell, sixteen miles from Plymouth, with orders to do his best to sell them. Accordingly, in May, 1848, the prisoner sold the horse. On the 27th June, 1848, the prosecutor (who was himself examined as a witness) went to Loddiswell with Richard Gee, (who was also examined as a witness), and stated to the prisoner that he came for the express purpose of taking the mare away, and that he wanted his bill. The prisoner answered, that he had no bill to give him; that all was paid with the money he, the prisoner, had received from the prosecutor, and out of the money that he, the prisoner, had got from the sale of the horse; that he had sold the horse for seventeen sovereigns, and that, after all was paid, he had fourteen sovereigns to hand over to the prosecutor. He added, that the mare had received temporary injury from a fall; and it appearing, on examination, that such was the case, the prosecutor consented that she should remain with the prisoner a few days longer. The next day (the 28th June) the prosecutor, in consequence of some information received in the interval, went again with his brother-in-law, Thomas Stear, (who was also examined as a witness), to the house of the prisoner, who was at that time absent; whereupon the prosecutor left Thomas Stear there, with orders, on the return of the prisoner, to demand the mare and the money. Upon the prisoner's return, on the 29th, Thomas Stear made the demand accordingly, when the prisoner refused to give up the mare or money to him, but said that he would go and see the prosecutor himself at Plymouth; and, therefore, the prisoner rode the mare, and Thomas Stear rode in company with him to Plymouth the same day. At Plymouth, the prisoner, in Thomas Stear's presence, placed the mare at Port's livery-stables, and they both then went to seek the prosecutor. On finding him, Thomas Stear stated, in the prisoner's presence, that he, the prisoner, had stated that he would not deliver to him the mare or the money, but that he would go himself to Plymouth. The prosecutor, upon this, told the prisoner that he need not have done so, as he, the prosecutor, had given full power in the matter to Thomas Stear the day before. Thomas Stear then said, "The mare is at Port's." After this they dined CRESS-together, and then the prisoner paid the prosecutor 137., saying, that he kept back 17. for vetches had since the mare's illness, and that this was all that was due. The prosecutor then told Thomas Stear to take the mare, and ride her to Mr. Eliot's, at Babland, who was going to keep and eventually buy her. Upon this the prisoner said, "Why not let me take the mare back to Eliot's myself? It's all in my way." To which the prosecutor answered, "I dare you ever to put a finger near that mare again. Thomas shall ride her to Mr. Eliot's, and you may ride Thomas's horse home, if you please.' The prisoner then left. Just after this the prosecutor sent his nephew, George, with orders, according to which George went to the stable at Port's, where the mare was, and ordered the ostler not to let the prisoner have the mare, as it was his uncle's. The prosecutor, in the meantime, set out to go on board the steamer for Jersey. On his way to the quay the prisoner found him, and again twice asked to be allowed to take the mare to Mr. Eliot's himself; and was again twice ordered by the prosecutor, in the presence of Thomas Stear, who accompanied them, never to put finger near the mare more; to which he answered, "Well." The

ALDERSON, B.-There is another point in this case which it will be necessary to discuss some day, namely, whether the 129th section of the 9 & 10 Vict. c. 95, applies at all to the case of a judgment by default. That section clearly contemplates a case where there is a verdict either for a plaintiff or defendant on which the judge could grant a certificate.

PARKE, B.-It is a great question whether you could have your costs at all as coming within the County Courts Act. The present rule ought therefore to be discharged, with costs.—Rule discharged, with costs*.

CROWN CASES RESERVED.

EXCHEQUER CHAMBER.

[Before POLLOCK, C. B., Parke, B., PATTESON,
WELL, and WILLIAMS, JJ.]

REG. v. STEAR.-Dec. 9.
Larceny-Bailment-Trover-Practice.
Cases for the Consideration of the Judges, under 11 & 12
Vict. c. 78, are not to be lengthy Narratives of the
Facts.

S., Bailee of P's Mare, took her to certain Livery-
etables, and paid P. a Balance due to him, after de-
ducting Money due for the Keep of the Mare, and told
P. that she was at the Livery-stables. P. sent Word
to the Stable-keeper not to let S. have the Mare again,
and twice refused S. Permission to ride the Mare. S.,
after P. had left the Town, obtained the Mare from
the Ostler at the Livery-stables by a false Statement,
and never returned her:-Held, that S. was rightly
convicted of Larceny.

John Distin Stear was tried at the last Michaelmas * On this latter point see Claridge v. Smith (4 Dowl. 583), Jones v. Barnes (2 Mee. & W. 313), and Jeffries v. Beart (12 Jur. 1003).

POLLOCK, C. B.-It is not necessary to give so length a narrative in stating the points for the consideration this Court; it resembles a special case at Nisi Priu where the Court act as jury; and we hope the practic will be discontinued.

prisoner then said, "I am short;" to which the prosecutor answered, "I won't see you short for a crown piece to go home with," and gave him 5s. The prisoner then left. Thomas Stear went on with the prosecutor, and saw him on board the steamer for Jersey. In the meanwhile, the prisoner, on leaving the prosecutor, met Greenwood. The conviction is bad. The possessio a man called Elmsley, who had been in company with was still in the prisoner when he took the mare away the prisoner and prosecutor in the course of the after- and had not then been changed. [Pollock, C. B.-1 noon. On so meeting Elmsley, he told him that the you can shew that he continued in possession from th prosecutor and himself had made it all right, and that original transaction till the time when the mare wa the prosecutor had given him 5s. Elmsley, who was sold, it is not felony; it resolves itself into a mere mat examined as a witness at the trial, then went with the ter of fact. There is no occasion to cite authorities prisoner, about five o'clock A.M., to Port's stables. The Williams, J.-Would trespass de bonis asportatis, of Ostler then told the prisoner, that a boy had been there trover, be the proper form of action in such a case?] to say, that he, the ostler, was not to give up the mare The question is, as to whether a disregarded message to him, the prisoner, for she was his uncle's. To this might be said to amount to a change of possession the prisoner answered, "I have just left the party, it's There is no felony apparent on the facts. The case is all right now," and ordered out the mare, upon which not one of bare custody, but of legal possession, by a the ostler brought out the mare and gave her to the pri- horse-dealer, in the way of his trade. [Pollock, C. B. soner. The prisoner then paid for the mare's bait, and-That is purely a question for the jury. Suppose the said, "If any one comes to inquire for me, say I am case of a man who has pledged property with a pawngone into the country a mile to see a pony, and shall broker, and afterwards redeems it, and the pawnbroker be back in an hour." Elmsley then said, "If I am to then picks his pocket of it. I cannot distinguish this go to the town's end, I will ride the mare.' The pri- from any case of stealing, where the property was once soner then handed the mare to Elmsley, who mounted in the possession of the person stealing.] There was and rode her through the streets, the prisoner following here no change of possession except from what was said close by her side. When they arrived at the Madbury by the little boy. [Cresswell, J.-He had authority to Inn, on the outskirts of the town, Elmsley dismounted, say what he did say; his size does not affect the quesand they stopped and drank. The prisoner then said, tion.] The facts do not shew a change of possession; "I am off home," got up, and rode the mare away. The no such change was acquiesced in by the prisoner, alprisoner never returned to Port's, and neither the ostler though he persists in his right by a false statement. nor Elmsley saw him again until he was in custody. This seems to be more like a question of trover than On his road home to Loddiswell, on his being asked by felony. The taking may have been perverse, or, to the Richard Gee aforesaid, whom he accidentally met, extent of desiring to obtain a commission for selling the "How's this, that you have got the mare back?" the mare, even dishonest, but it was not felonious. (R. v. prisoner answered, "I have seen Mr. Pugsley, and set- Banks, Russ. & Ry. 441; R. v. Goodbody, 8 C. & P. tled to take her back again." Thomas Stear, after seeing 665; R. v. Harvey, 9 C. & P. 353; 1 Moo. C. C. 703), the prosecutor on board the steamer for Jersey, went to Port's, and found the mare gone. On further inquiry, he subsequently, on the 7th of July, went to the prisoner's house, and demanded the mare, when the prisoner owned that he had sold her; upon which a warrant was applied for, and the prisoner apprehended. It appeared further in evidence, that the prisoner's brother William had sold the mare as early as the 3rd of July to a Mr. Bickford, with the prisoner's assent, the prisoner stating to Mr. Bickford that he himself had previously sold the mare to his said brother. During the whole of these proceedings, as it appeared in evidence, the prisoner never set up any claim of lien for the keep or maintenance of the mare, neither did he ever allege that he had any pecuniary demand of any sort against the prosecutor until he appeared in custody before the magistrates. At the trial, no evidence was produced on the part of the prisoner of any such debt or demand. At the close of the case for the prosecution, it was contended for the prisoner, on the authority of R. v. Smith, (1 Moo. C. C. 473), and R. v. Banks, (Russ. & Ry. 441), that there was no case of felony to go the jury. I, however, was of opinion that the present case was distinguishable from the cases cited; and that although there was clearly no felonious intention on the part of the prisoner at the time when he first got possession of the mare, by virtue of the original bailment in March, still, as that bailment was determined before the prisoner took the mare away from Port's, that it was for the jury to say, regard being had to all the circumstances of the case, with what intention the prisoner so took the mare away on the 29th of June. The jury having found the prisoner guilty, the judgment was respited, the prisoner being in the meantime liberated on recognisances. The opinion of the judges, therefore, is now respectfully requested as to whether the prisoner was rightly convicted.

Greenwood having read the foregoing case,

POLLOCK, C. B.-No other question can be gathered from the case than the question, whether there was any evidence from which a jury could infer a change of possession. There was such evidence by which a jury could convict of felony; and I think that the conclusion the jury came to was right.

PARKE, B.-In this case, the mare does not remain in the actual possession of the prosecutor, but of that of the third person; and the question is, whether there is any evidence to shew that Port held for the prosecutor or for the prisoner. I think there is evidence in the case, from which the jury, if they liked, might infer that the mare was at Port's, by consent of both parties, for the use of the prosecutor.

PATTESON, J.-The whole question is, whether Port had become the agent of the prosecutor. There can be no doubt that there was sufficient evidence of that. CRESSWELL and WILLIAMS, JJ., concurred.-Conviction confirmed.

REG. v. WEBB.

Nuisance-Open and notorious Lewdness—Indecent Ex

posure-Practice.

A. was indicted for a Nuisance at Common Law, in indecently exposing his Person in the Presence of B., a Married Woman, "and of divers other of the liege Subjects of our Lady the Queen." The Evidence was, that no other Person but B. was present at the Time:Held, that those Words are material, as Exposure to One Person only is not at Common Law an indictable Offence, and that the Conviction could not be maintained.

This Court, under 11 & 12 Vict. c. 78, is bound to examine the Validity of an Indictment, though no Question be reserved upon it.

The prisoner was tried at the Middlesex Sessions, be fore Mr. Serjeant Adams, assistant judge, for indecently