Q. B.] THORNE v. COLSON. [Q. B. the 6 & 7 Vict. c. 68, for unlawfully keeping a place It was likewise proved by the evidence of two witof public resort for the public performance of stage-nesses that there was then in part of the said place or plays: The case stated that- At a petty sessions of her Majesty's justices of the peace for the borough of Margate, in the county of Kent, holden' at the town-hall in the said borough, on the 21st Aug. 1860, the defendant Jacinth Colson, of Margate aforesaid, professor of music, appeared before us, the undersigned James Standing, Esq., mayor of the said borough, Thomas Blackburne, William Froward Gilder, George Yeates Hunter, and Richard Jenkins, Esqrs., the justices then present, to answer an information of Richard Samuel Thorne, the lessee of the Theatre Royal, Margate, aforesaid, for that the said Jacinth Colson, on the 22nd Aug. instant, in the said borough, did unlawfully keep a certain place of public resort for the public performance of stage-plays and entertainments of the stage, without authority by virtue of letters patent from her Majesty, or licence from the Lord Chamberlain of her Majesty's household, or her Majesty's justices of the peace for the said borough of Margate, within which said borough the said place of public resort is situate (the same place not being a booth or show excepted from the operation of the statute in that behalf), and the said parties respectively being present, the said charge was duly heard by us, and upon such hearing we dismissed the information. And whereas the said Richard Samuel Thorne hath, pursuant to the provisions of the before-mentioned statute, given us notice and required us to state and sign a case setting forth the facts and grounds of our determination at the hearing of the said information, in order that he might take the opinion of the said Court of Q. B. : Now we, the said justices, pursuant to such notice and the provisions of the statute aforesaid, do hereby state and sign such case as follows: It was proved to our satisfaction at the hearing of the said information, that the defendant was the rated owner and occupier, and paid the rates of a place, called the London Bazaar, wherein toys and fancy articles are usually sold, and situate in the High-street of the said borough, and while the alleged stage performance was going on, the walls of the said bazaar were fitted up round with the toys, &c., and which were visible, although they appeared to be put out of the way, and not exposed as at other times. There was no proof that the defendant, who was in London at the time, had himself let his place to the performers, but his attorney admitted that his client's wife had done so in his absence. bazaar a stage, with a curtain across it; that a little music had been played on the piano, a bell rung, and the curtain raised; that the different characters set forth in the bill were personated by two people calling themselves Rosina Pennell and Reginald St. Clair, and that they went off the stage and came on again several times together and separately; that they appeared in several different costumes, and represented several different characters when on the stage, sometimes speaking in soliloquy and sometimes holding a dialogue with each other on the stage for ten minutes at a time; and that a song was sung by the said Rosina Pennell, she accompanying herself on the piano; that about eighty people were present to witness the performance; that Reginald St. Clair, in one of his characters, appeared as the sincere lover of the lady, and in another as one secking after her money, and that in the course of the performance he proposed marriage to the lady. One of the witnesses, Thomas MacKnight, who described himself as an author by profession, and in the habit of attending theatres, stated that he had attended the performance on the evening of the 22nd instant, and in his opinion it was an entertainment of the stage, but that he did not consider himself a skilled witness, and that Mr. and Mrs. Gernian Reed's entertainment was much the same as this. Another witness, Nelson Lee, the lessee of the City of London Theatre, who has been for thirty years engaged as a proprietor or manager of theatres, and who had been present for a short period at the said performance, said that it appeared to him to be the commencement of a farce; that it was what he had always understood to be called duologue, and a performance of the stage; and that duologues are occasionally represented on the stage; that Mr. and Mrs. Howard Paul and Mr. and Mrs. German Reed's entertainments were duologues; that similar entertainments were given in London theatres in Passion-week; that he had seen duologues which were parts of farces cut down. And whereas upon the evidence before us, we the justices, upon the evidence, considered that the said performance was not a stage-play within the meaning of the Act 6 & 7 Vict. c. 68. We dismissed the information on the following grounds: Firstly, that the Act 6 & 7 Vict. c. 68, being a penal statute, requires to be strictly interpreted, and that as the word "duologue" does not appear among the stage entertainments enumerated in the 23rd section, we did not consider it to be a stage-play. It was further proved that on Wednesday, the 22nd Aug. inst., two of the witnesses, after payment of 1s. each at the door, were presented by the money-taker Secondly, that as the witness Nelson Lee had stated with a bill of the performance, and admitted to such that, although he considered such a performance as place; these bills, which are alike, were tendered in that given in the defendant's bazaar to be an entertainevidence by the informant's attorney, and admitted by ment of the stage, he admitted that such performances the defendant's attorney, and to one of them we have were given in London theatres during Passion-week-a marked our names and annexed it to this case, that the time when we believe it would be unlawful to perform court may in its discretion refer thereto. It announces stage-plays thereon-we, the justices, in consequence for performance at the London Bazaar aforesaid, on of such admission, concluded that other managers of Aug. 16, 17, 18, 20 and 22,"by royal anthority and London theatres must differ in opinion from the said command, a new and fashionable drawing-room enter-Nelson Lee, and that they could not consider such tainment Not quite so Fast, or Errors Redeemed-A Story of the Heart. Scene 1. Room at the Hotel, Cambridge. Scene 2. The Heroine's Boudoir. Scene 3. A fashionable Drawing-room in London. Scene 4. The wedding characters, personated by Miss Rosina Pennell and Mr. Reginald St. Clair." A descriptive list of these characters, which appear to be fourteen in number, follows, and after setting out some favourable descriptions of criticisms on the entertainment, apparently extracted from newspapers, the bill concluded thus:"Reserved seats (stalls), 3s.; second seats, 28.; area, 18." entertainments to be stage-plays. A further doubt being thus raised in our minds, we felt it incumbent to give the defendant the benefit of such doubt. If the court should be of opinion that we the justices were correct in the dismissal of the information, the same is to stand; if not, a conviction is to be returned under the 2nd section of the Act for regulating theatres, or such other proceedings taken as the court shall direct. By the 6 & 7 Vict. c. 68, s. 11, it is enacted "that, except as aforesaid, it shall not be lawful for any person to have or keep any house or other place of Q. B.] REG. v. RECORDER OF LEEDS-BATTING v. BRISTOL, &c. RAILWAY COMPANY. public resort in Great Britain for the public per- By sect. 23 it is enacted "that in this Act the word 'stage-play' shall be taken to include every tragedy, comedy, farce, opera, burletta, interlude, melodrama, pantomime, or other entertainment of the stage, or any part thereof," &c. Poland now appeared for the appellant, and contended that the justices were wrong, for that a duologue is as much a stage-play as a performance by a greater number. Lush, Q. C. contrà.-There is a fatal defect in this information, for it is laid against the owner of the premises, and the case itself states that there was no proof that he had himself let the place to the performers. The 2nd section is directed only against the manager. [Poland. That point is not raised by the case. CROMPTON, J.-It may be doubted whether or not the defendant was liable for the act of his wife in letting the premises. You cannot say, Mr. Lush, that this was not a stage-play within the interpretation clause. I cannot contend that it is not. CROMPTON, J.-Then let the case go down again to the justices to be reheard with reference to the liability of the defendant, with our intimation that it is a stage-play within the Act. To be reheard by the justices.(a) Thursday, Jan. 24. REG. v. RECORDER OF LEEDS. The justices of the borough of L. made an order for the removal of a pauper from L to A., notice of appeal was given by the overseers of A. to the sessions of the county in which L. was situate, instead of to the borough sessions, and on discovering their error a letter was written one day before the holding of the borough sessims, abandoning the notice, whereupon the respondents attended at the last-named sessions, and obtained an order for their costs: [Q. B. by consent. Under these circumstances the overseers of Leeds attended at the borough sessions on the 10th Oct. and obtained an order for their costs, which order it was now sought to quash. Reg. v. The Recorder of Liverpool, 15 Q.B. 1070, and Reg. v. The Justices of Buckinghamshire, 4 Ell. & Bl. 259, n., are clear decisions on a notice such as was here given; and with the light thrown on its validity by the judgments in those cases, the appellants might safely have gone to the sessions and had the appeal tried. The respondents were therefore bound to be prepared, and the letter written on the 9th Oct., the day before the borough sessions, was clearly too late to avoid the expense. The notice given by the appellants was a good notice; the borough sessions had jurisdiction, and the respondents were entitled to their costs: (8 & 9 Will. 3, c. 30, s. 3.) Shaw contra.-The order for costs was made behind the backs of the appellants. The power to give costs is given by the 8 & 9 Will. 3, c. 30, s. 3, and 12 & 13 Vict. c. 45, s. 6. Reg. v. The Justices of Salop, 4 Ell. & Bl. 257, is an authority in favour of the appellants, and is distinguished from the cases cited, in the judgment of Lord Campbell. No doubt the appellants were bound to pay some costs, but not these costs, and the recorder had no jurisdiction to make the order. CROMPTON, J.-I am of opinion that this rule should be discharged. After the notice given, and looking also to the cases referred to by Mr. Maule, I think that the parties were entitled to suppose that they might be called on to appear at the right sessions, that is to say, the sessions for the borough of Leeds; they had therefore a right to make preparation, and to incur costs. The letter of the 9th Oct. was too late, and cannot interfere with the respondents' right to recover costs incurred before that time. I think it clear that the recorder had jurisdiction, and this rule will therefore be discharged, but without costs. HILL, J.-I am of the same opinion. We could not make absolute this rule without saying the recorder Held, that the recorder for the borough of L. had juris-had no jurisdiction. Now clearly he had; but I think diction to make such order, and that under the above circumstances the respondents were entitled to their costs. Maule showed cause against a rule for a certiorari to bring up an order of the Recorder of Leeds, with a view to its being quashed. The justices of the borough of Leeds made an order for the removal of a pauper from Leeds to Applethwaite in Somersetshire. Notice of appeal was given by the overseers of Applethwaite to the sessions for the West Riding of York, instead of to the borough of Leeds sessions, and on their discovering that the notice should have been given to the borough sessions, a letter was written by them inquiring whether the appeal could be heard by consent between the parties, and if it could not, declaring their intention of abandoning the notice. The notice was given on the 18th July, on the 28th Aug. grounds of appeal were served, and on the 9th Oct. the above-mentioned letter was written. The borough sessions were held on the following day, viz. 10th Oct., and the sessions for the West Riding of York on the 15th Oct. To the letter abandoning the notice of appeal, respondents replied that nothing could be done (a) This is a decision of great importance, as seriously affecting a very large class of popular amusements, such as those of Mr. and Mrs. German Reed, some of the Nigger songs, and many others that might be named. In substance this case determines that any dialogue spoken by two or more persons is a dramatic performance. Hence the absurd consequence, that a scene of a play read to an audience in dramatic style, the same voice speaking for all the characters, is not within the law, while the same scene read by two persons is so. there is good ground for saying that the conduct of the respondents' attorney was disingenuous, and therefore the rule will be discharged without costs. Rule discharged. Saturday, Nov. 19. BATTING AND OTHERS (appellants) v. THE BRISTOL AND EXETER RAILWAY COMPANY (respondents). Railway-Conviction for obstructing the line-Intent to obstruct. By sect. 211 of the 6 Will. 4, c. 36 (private) (the Bristol and Exeter Railway Company's Act) it is enacted "That if any person. shall do any act, matter, or thing to obstruct the free passage of the said railway or any part thereof," he shall be liable to a certain penalty: Held, that, to render a party liable under this section, he must have intended to have committed the obstruction complained of. Where therefore a person was crossing the railway at a crossing which he had a right to use with a waggon laden with timber, and the waggon got accidentally hitched with the gate-post, and a collision occurred with it and a train whilst it was so hitched: Held, that, although the party was guilty of carelessness, yet, as he did not intend to create an obstruction he was not liable to a penalty under the foregoing section. This was a case stated under the 20 & 21 Viet. c. 43, upon a conviction by justices of the appellants, who were charged with having obstructed the free passage of the Bristol and Exeter Railway, by drawing aud placing across the said line at Bramford Speke a waggon loaded with timber, which by the local Act, 6 Will. 4, c. 36, s. 211, is punishable by penalty not exceeding 10%. nor less than 5., and in default of payment to imprisonment not exceeding three months. The facts as they appeared in evidence were, that the defendant Batting is the occupier of an estate in Bramford Speke, Devon, part of which lies on one side of the railway and part on the other. The only ingress and regress to and from one of his fields is over a level crossing on the railway, at a place appointed for the purpose by the company. Some elm-trees had been felled in this field, and the defendant Strong was employed to draw away the trees. The defendants Osborne and Wickers are Strong's servants. [C. CAS. R. of the said railway, or any part thereof, he and every person actually or constructively aiding or assisting therein shall respectively forfeit and pay any sum not exceeding ten pounds nor less than five pounds for every such offence." Kinglake, Serjt. (M. Smith, Q.C. with him) appeared in support of the conviction. He referred to Reg. v. Holroyd, 2 Mo. & R. 339; 3 & 4 Vict. c. 97, s. 15; 14 & 15 Vict. c. 19, s. 6. COCKBURN, C. J.-I am of opinion that, upon the facts of the case, the conviction cannot be sustained. The construction of the Act of Parliament is certainly very ambiguous, but I can quite understand that, though a person has a right to cross a line, yet, if he does so at a dangerous time, he may commit a serious offence. The question is, whether or not that offence is set out in that Act of Parliament? Now here the appellants were entitled to cross the line, provided they did so at a reasonable time. Then, did they intend to obstruct the line? It is not so found, and it is clear that they never intended that there should be any obstruction. They intended to get safely across, and with no intention of obstructing. They obstructed by a pure accident, and in consequence, instead of getting across, their waggon remained upon the line. Therefore, notwithstanding in consequence of their act the accident occurred, it was not with any intention on their part. That the act was a negligent one I agree; for, as trains are liable to be late, and there was a curve, it was only common prudence on their part to use great caution; but whether this is a criminal or merely a civil injury is another matter. Although, therefore, they did something which had the effect of obstructing the line, yet, as they never intended it, I think they are not liable under that statute. On the 22nd May Strong and his two men were there for the purpose, with a timber-waggon and horses. They loaded the waggon with two elm-trees, with which they were about to cross the railway at the proper place, when they were informed that a train was due, and were cautioned not to pass. Defendant Batting was present assisting. He sent his son up the line to see if the train was coming, with instructions if he saw it to hold up his hands. The line curves a short distance above the crossing, and on the son's going beyond the curve he saw the train coming on. The two defendants Batting and Strong, however, without waiting for any signal from the son, ordered the two other defendants Osborne and Wickers to take the horses and waggon across the railway, which they began to do, and as they drew it across one of the hind wheels of the waggon became hitched in a gatepost at the side of the railway, from which they had proceeded, and the waggon with the two elm-trees on it thus became fixed in a direct line across the railway, taking up the whole crossing. The men were using every exertion to free the waggon, but could not do it, and after some minutes the train came on. It was impossible to stop it, and the driver seeing a collision inevitable, kept up his full speed, and most provi- HILL, J.—I am of the same opinion. The question is, dentially cut through both the elm-trees, and the train whether the parties who were exercising a right of crosspassed on without injury to life or limb, damaging, ing the line, but were doing so carelessly, but without any however, the engine very considerably. It was a pas-intention of causing an obstruction, were guilty within senger train. CROMPTON, J.-I think the fair meaning of the Act is, that they should do something which they mean to be an obstruction. the meaning of the Act. I am of opinion that they It was elicited by the defendants, on their cross- were not. [His Lordship heie read the section.] Now I examination of the company's servants, that the trains construe the words "or shall do any act, matter, or did not always keep their time; that in fact they were thing to obstruct the free passage of the said railway sometimes an hour or more after their time, and it was to mean with intent to obstruct, for I think that, if a contended that persons having the right as the defen-person were to do such an act with such an intention, dants had of using this crossing on foot and with car- he would be guilty, although no obstruction may in riages, are not obliged to wait the uncertainty of the fact have taken place. passing of the trains; and that but for the accidental locking of the wheel of the waggon in the gate-post the waggon would have been drawn across the line before the arrival of the train; and moreover, that the company are bound to keep a man at the gates of the crossing. On the part of the company it was insisted that the defendants knew the train was due, and that instead of sending Batting the son up the line to see if the train was approaching, they ought to have waited a reasonable time before attempting to draw over so unwieldy and unmanageable a vehicle as a loaded timber-waggon; that the company are not bound to keep a man at the gates of a private crossing; that there was a want of proper caution in the use of the crossing, and therefore the defendants were guilty of obstructing the free passage of the railway within the meaning of the Act of Parliament. Judgment for the appellants.(a) CROWN CASES RESERVED. Reported by JOHN THOMPSON, Esq., Barrister-at-Law. Saturday, Jan. 19. (Before COCKBURN, C.J., WIGHTMAN AND WILLIAMS Proof by an agent of the receipt of rents, of letting the (a) But although the words of the Act may not be read con-literally, so as to include every act of obstruction, why should not gross negligence be held as equivalent to intention on the same principle as in manslaughter? The course of argument might be this: The law assumes an intent to do what is done; it is for the defendant to excuse himself by showing that his intent was otherwise; gross negligence is not such an excuse, for a man is bound to use ordinary diligence to avoid an infraction of the law. The justices took this view of the subject, and victed the defendants in the penalty of 5. each. By the Bristol and Exeter Railway Company's Act (private), 6 Will. 4, c. 36, s. 211, it is enacted "that if any person shall throw, place, or wilfully scatter or drop any gravel, stone, rubbish, or other matter or thing upon any part of the said railway .or shall do any act, matter, or thing to obstruct the free passage title-deeds, upon a count of an indictment for stealing lead, the property of A. B. fixed 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 workmen 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. [C. CAS. R. C. Foster. The evidence of ownership is not suffi cient. 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 indictinent 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 Mar. 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 & 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. 371. 158., 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 fol The opinion of the Court of Criminal Appeal is requested, whether the evidence of Mr. Barff was suffi-lowing is a copy :cient to prove the ownership of the property in Thos. Wood, the prosecutor. J. G. SMYTII, 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. Shelton Bar Iron Works, near Stoke, Staffordshire, 19th Sept. 1859. "Mr. P. W. May. "Dear Sir,-In reply to your letter, we are not disposed to appoint any agent at Newcastle, but for all business you do for us we shall be happy to pay you a commission. "We expected that after your conversation with the writer a good business would result. "Yours truly, "Shelton Bar Iron Company, "W. P. RODEX. "15, Lisle-street, Newcastle-upon-Tyne." 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 ein ployed 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 947. 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 37. 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 same 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. "Dear 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. fendant was a clerk or servant within the meaning of COCKBURN, C. J.-The point is, whether the dethe statute. and getting orders for the prosecutors upon which he This is the case of a person going about 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 tine 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 It must be estaban agent, not a clerk or servant. lished that the relation of master and servant exists. Here the prisoner was simply a commission agent. A 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 meryou commission." chant? WILLIAMS, J.-On the other hand, if a person is 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 that the prisoner was engaged to receive money. M'Mahon for the prisoner.-In Rex v. Goodbody, s Car. & P. 665, Parke, B. said, he wished that 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 collect money and pay it over. He was paid by commission. He was to go about among the farmers to get orders, but no definite time was fixed for so doing. He 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 guarantee society for the prisoner's conduct, it was arranged that the prisoner should have a salary of 11. 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 |