Page images



was to prevent habitual drunkenness in a traveller because he is a traveller for pleaplace during the hours of Divine Service, sure ? COCKBURN, C.J.-If a person went but that it does not extend to persons who round to different places on business with are away from the place where their homes his bag, would he not be a traveller ? So are, and who may, therefore, require some would he not also be a traveller if he went refreshments at an inn. What can without his bag. Does his going the same innkeeper do when a stranger comes to his round for pleasure prevent his being a house and asks admission ? if he does not traveller within the meaning of this exknow him to be an inhabitant of the place, ception ?] can he do more than ask him whether he It comes to this, then, that it must be a is a traveller ? If he were to refuse ad- matter of fact in each case for the determission to a person who should be held to mination of the Magistrates. be a traveller, he would be liable to an [Crowder, J. – I think that is so; indictment- The King v. Ivens (1). but, on these facts, I think the Justices

[CROWDER, J.—How is a publican to might hold these persons to be travellers. know whether a person is a traveller or COCKBURN, C.J. — Yes; on these facts not ?]

the Justices should not, I think, have conHe has no means when such person is a victed the appellant. As the legislature stranger. It is very difficult to say what has thought proper to use a word of the is a traveller. In Sandiman v. Breach (2) most ambiguous meaning, I do not conit was assumed, that a stage-coach which sider that we are called upon to explain it, went from Clapton to London travelled except with reference to each particular that distance.

All we say, therefore, is that we [COCKBURN, C.J.-Travelling does not do not think that this case is within the depend upon the distance a person goes.] act.]

The dictionaries vary as to the definition In Richardson's Dictionary "travel" is of traveller." In the Imperial Dictionary, defined thus, -" to go or pass a wearisome by Ogilvie, "travel" is said to be “to length of way; to take or make a toilsome walk, to go or march on foot, to pass, or laborious journey ; to journey ; to go to journey over,-a passing on foot, a or pass (on foot or in carriage) along the walking-journey—a passing or riding from way, the road, through a country, over place to place"; and "traveller" is de- the sea." fined as

one who travels in any way.” [COCKBURN, C.J.-But under the present Welsby, for the respondent.--Who is a acceptation of the term a man may travel traveller within the meaning of this excep- for pleasure.] tion is a question of fact for the Justices in each case to determine. It is evident, Per Curiam (3)— however, that they are desirous of having

Judgment for the appellant, with the opinion of the Court to serve them as

out costs. some guidance for the future. The addition of "bona fide" to a traveller in the prior act did not carry the meaning 'any further; in all cases it must be, whether [CROWN CASE RESERVED.] the person is really a traveller, and it 1858. makes no matter whether the innkeeper Nov. 13. believed the person to be a traveller, as

False Pretences, by means of innocent the exception will only apply if he was, in fact, a traveller. Looking, then, at the Agent. facts in this case, it must surely be consi- J. B. was one of many persons employed, dered that these persons, who had gone whose wages were paid weekly at a payout for pleasure only, were not travellers table. On one occasion, when J. B.'s wages within the meaning of the act.

were due, the prisoner said to a little boy, I [CROWDER, J.-Is a person the less a

(3) Cockburn, C.J., Williams, J. and Crowder, J. (1) 7 Car. & P. 213.

* Coram Cockburn, C.J., Wightman, J., Wil(2) 7 B. & C. 96.

liams, J., Willes, J. and Channell, B.




will give you a penny if you will go and get and on behalf of the said James Butcher J. B.'s money. The boy innocently went to the elder and James Butcher the younger, the pay-table and said to the treasurer, I otherwise the two Jim Butchers, by means come for J. B.'s money, and J. B.'s wages of which said false pretence

the said were given him. He took the money to the William Butcher did then unlawfully obprisoner, who was waiting outside, and who tain from the said James Holden the sum gave the boy the promised penny :-Held, of 21. 38. of the monies of the said comthat the prisoner could not be convicted on pany, with intent thereby to defraud." the charge of obtaining the money from the The count then negatived the false pretreasurer, by falsely pretending to the trea- tence, The second count stated, “And surer that he, the prisoner, had authority the jurors aforesaid, upon their oath aforefrom J. B. to receive his money, or of obtain- said, do further present that William ing it, from the treasurer and the boy, by Butcher, on the 22nd of January, in the falsely pretending to the boy that he had year of our Lord 1858, unlawfully, knowsuch authority, or of obtaining it from the ingly and designedly did falsely pretend boy by the like false pretence to the boy; to one William Butler that he, the said but that he might have been convicted on a William Butcher, was authorized to send count charging him with obtaining it from him, the said William Butler, to the paythe treasurer, by falsely pretending to the table of the said Company of Free Fishers treasurer that the boy had the authority from and Dredgers, of Whitstable, to get the J. B. to receive the amount.

pay-table money of the aforesaid James

Butcher the elder and James Butcher the This case was stated, by the chairman, younger, otherwise the two Jim Butchers, on the trial of the prisoner, at the General and did then unlawfully obtain from the Quarter Sessions of the Peace for the said James Holden, then being the treacounty of Kent, holden at St. Augustine's, surer of the Company of Free Fishers and near Canterbury, on the 6th of April 1858. Dredgers, of Whitstable, as aforesaid, and

William Butcher was tried upon the from the said William Butler the sum of following indictment :-Kent, to wit.- 21. 3s. of the monies of the said company, The jurors for our Lady the Queen, on with intent thereby then to defraud." It their oath, present that William Butcher, then negatived the false pretence. The on the 22nd of January, in the year of third count was, “ And the jurors aforeour Lord 1858, unlawfully, knowingly and said, upon their oath aforesaid, do further designedly did falsely pretend to one James present that, on the 22nd of January, in Holden, the treasurer and servant of a the year of our Lord 1858, the said Wilcertain incorporated company, called the liam Butcher knowingly did falsely pretend Company of Free Fishers and Dredgers, of to the said William Butler that he, the said Whitstable, in the said county, that the William Butcher, was the agent of the said William Butcher was the agent of two said James Butcher the elder and the said persons named James Butcher the elder James Butcher the younger, commonly and James Butcher the younger, of Whit- known by the name of the Jim Butchers; stable aforesaid, which two persons were and that he, the said William Butcher, was commonly known by the name of the then sent by the said James Butcher the Jim Butchers; and that he, the said elder and the said James Butcher the William Butcher, was then sent by the younger, otherwise the two Jim Butchsaid James Butcher the elder and James ers, to the pay-table of the company Butcher the younger, otherwise " the two aforesaid to receive certain monies then Jim Butchers," to the pay-table of the payable by the said company to the said Company of Free Fishers and Dredgers, James Butcher the elder and James Butcher of Whitstable aforesaid, to receive certain the younger, otherwise the two Jim monies then payable by the said company Butchers; and that he was then authorized to the said James Butcher the elder and to receive such monies for and on behalf James Butcher the younger, otherwise the of the said James Butcher the elder and two Jim Butchers; and that he was James Butcher the younger, otherwise the then authorized to receive such monies for two Jim Butchers, by means of which false pretences the said William Butcher January last, near the Duke of Cumberdid then unlawfully obtain from the said land public-house; that the defendant came William Butler the sum of 21. 3s. of the to them and said, “Which of you boys monies of the said William Butler, with wants to earn a penny"; that witness reintent to defraud.” It then negatived the plied, “I do”; that the defendant then false pretence as before.

said to witness, “ Go to the pay-table and The substance of the evidence for the fetch the two Jim Butchers' money”; that prosecution was as follows:-John Ham- witness accordingly went to the pay-table mond Nicholls stated, that he was foreman at the Duke of Cumberland public house, of the Incorporated Company of Free where Mr. Nicholls and Mr. Holden were, Fishers and Dredgers, of Whitstable; that and asked for the two Jim Butchers' paythe affairs of the company are managed by table money; that he received 21. 3s. and the foreman and jury, and by a treasurer; went back to the street, where the defenthat the members of the company are free- dant was waiting, and gave him the money, men, and are employed under the super

and received from him a penny. vision of the foreman in working upon the On cross-examination witness said, he oyster-grounds of the company, and are went and received the money, and afterpaid for their work by the treasurer; and wards gave it to the defendant because that the treasurer of the company is James he had promised him the penny for Holden ; and that the witness and James doing so. Holden met at a public-house in Whit- James Holden stated that he was treastable Street, called the Duke of Cumber- surer of the company. That on Friday land, on Friday the 22nd of January 1858, the 22nd of January he was at the payat the pay-table for the purpose of paying table with John Hammond Nicholls, the the freemen for their work; that the de- foreman of the company; that a little boy, fendant William Butcher is a freeman of the witness last examined, came and asked the company, and was then entitled to for the two Jim Butchers' pay-table money; receive and come to the pay-table, and did that he paid 21. 3s. to the boy ; that the receive his pay of 14s. between five and money so paid to the boy was the money six o'clock in the evening of the said 22nd of the company; that he parted with the of January ; that among the freemen of money because the boy came and said he the said company are two persons, father wanted the two Jim Butchers' money, and and son,

of the name of James Butcher, that he should not have parted with it who go by the name of "the two Jim without; that Nicholls, the foreman, goes Butchers," and the money which becomes on the oyster-grounds, knows what work due to them is commonly called “the two has been done by the freemen, and what Jim Butchers' money"; that between six each has earned and is to receive; that and seven o'clock of the same Friday Nicholls specified the amount, and told evening a little boy came to the pay-table him what he was to pay, and that he after the defendant William Butcher had should not have parted with the money if received his money, and said, “I want the the little boy had not said he was sent for two Jim Butchers' money"; that the sum it, and if he had not believed that the boy of 21. 3s. was due to the two James was authorized by the two Butchers to Butchers; that witness told Holden, the receive it. treasurer, to pay the money to the boy ; The defendant's name was never menthat the freemen frequently send their tioned in the transaction. boys and girls for their money ; that after- James Butcher the father and James wards James Butcher the father came and Butcher the son respectively proved that then James Butcher the son came for their they were commonly known as the two money.

Jim Butchers; that they did not authorize William Butler, a boy ten years of age, either the defendant William Butcher or stated that he knew the defendant William the boy William Butler to receive their Butcher ; that he (the witness) and an- money from the company, and did not other boy were playing together in the send any one for it on the said Friday street of Whitstable, on Friday the 22nd of evening.

It did not appear that either the fore- the money from the boy by a false preman or the treasurer of the company knew tence. the name of the little boy, or who he was [COCKBURN, C.J.-No; he got it from at the time the treasurer paid him the the boy by giving him a penny.] money.

The boy had the possession of it, and I stated to the jury that if they were of believed the prisoner had authority to opinion that the defendant was guilty of receive it. obtaining money by false pretences upon the facts proved, the question of law would COCKBURN, C.J.-I quite agree that the be reserved for the decision of the Court prisoner was guilty of obtaining the money of Criminal Appeal. The jury found the by false pretences, but it is clear to me that defendant guilty. The judgment was re- the pretence upon which the money was spited, and the defendant was admitted to obtained is not alleged in any of the three bail to appear and receive sentence at the counts. In each of them the pretence is next Court of Quarter Sessions.

that the prisoner alleged himself as authoThe question for the opinion of the rized to receive the money. The prisoner, Court of Criminal Appeal was, whether the by putting in motion an innocent agent, is, facts proved were sufficient to support no doubt, responsible for any representaeither the first, second, or third count of tion made by the agent within the limit the indictment.

of his instructions; but that principle does No counsel appeared for the prisoner. not meet the difficulty I feel on the ground

Addison, for the prosecution.-By the that the pretence is not truly stated. The words he used the prisoner assumed to prisoner told the boy to go and get the have authority from the two James But- Jim Butchers' money, and the boy went chers to go and get their money.

and said "I have come for the Jim But[Cockburn, C.J.-He does not say he chers' money." I think that amounts to is authorized to receive it.]

a representation by the boy that he was He says so by his conduct, just as much authorized to receive it; and the prisoner as a person who puts on the cap and gown is as much responsible as if he had gone of an Oxford student falsely pretends that to the pay-table and said to the treasurer he holds that position in the University, oras the boy was authorized to receive the one who draws a cheque on a banker with

money. The treasurer parted with his whom he has no account falsely pretends money on the representation that the boy that he has. The boy was the prisoner's in- had authority to receive the money, not nocent agent to get the money. It is just that the prisoner had the authority. I the same as if the prisoner had gone and think the prisoner might have been asked for the money himself. Therefore, victed on a count alleging that he reprethe first count, which alleges that the pri- sented that the boy had the authority to soner falsely pretended that he was autho- receive it ; but, as there is no such count rized to receive the money, is supported. in this indictment, the conviction cannot The second count, that he falsely pretended be supported. to the boy, and so obtained the money WIGHTMAN, J. and WILLES, J. from the treasurer and the boy, is also curred. made out by the evidence. If, by a pre- WILLIAMS, J.-I am of the same opintence to A, you obtain the money from B, ion. There is no evidence to support the the crime of obtaining money by false pre- count, which alleges that the prisoner pretences is completed - The Commonwealth tended to the treasurer that he was authov. Harley (1), The Commonwealth v. Call rized to receive the money. The pretence (2), The King v. Wilkin (3), The Queen to the treasurer was, that the boy was v. Moland (4). Further, the third count authorized. Nor can the conviction be is made out, that the prisoner obtained sustained on the third count, which states

that the prisoner obtained the money from (1) 7 Metcalfe (American) 462.

His (2) 21 Pick. (American) 523.

the boy by a false pretence to him. (3) 1 Leach, C.C. 520.

false pretence induced the boy to go for (4) 2 Mood. C.C. 276.

the money, but he got it from the boy NEW SERIES, XXVIII.-Mag. Cas.





without any pretence. At one time I

CASE. thought that the second count, which avers The material ground of removal was, that the prisoner made pretence to the boy that George Wakeham was in the year and obtained the money from the trea- 1825, being then aged about ten years, surer, was supportable on the authority of bound, by indenture, by the churchwardens The Queen v. Brown (5), which shews and overseers of the poor of the parish of that it is not necessary that the pretence Blackawton, in the county of Devon, an should be made to the person from whom apprentice to one Mr. Partridge, of Lower the money is obtained if it is made to Westree, in the said parish, farmer, to serve operate on his mind. But the pretence to him till he attained the age of twenty-one; the boy was not the same pretence that that he served the said Mr. Partridge as operated on the treasurer's mind. The such apprentice under the said indenture pretence to the boy was, that the prisoner about twelve months, and then removed was authorized to receive the money. The with the said Mr. Partridge into the parish pretence to the treasurer was, that the boy of Broadhempston, where he continued to had the authority.

serve and live with the said Mr. Partridge, Channell, B.-I also think that there under the said indenture, for more than is no count supported by the evidence. twelve months. The only material ground Conviction quashed. of appeal was, that George Wakeham was

not duly bound a parish apprentice by indenture, as stated in the above ground

of removal. 1858. 2 THE QUEEN V. THE INHABIT- The following was all the evidence on Nov. 17. S ANTS OP BROADHEMPSTON. this point :-Philip Wakeham said, " I am Settlement Parish Apprentice-Order George Wakeham's father. I had some

conversation with him in 1824 about his of Justices-Presumption-Secondary Evi

being apprenticed to Mr. Partridge, and dence-56 Geo. 3. c. 139.

also with Mr. Partridge on the same subUpon a question whether G. W. had ac- ject. I went to Morley with him to be quired a settlement by service as a parish bound apprentice. I took him before the apprentice to P, it was proved that in 1824 Magistrates. The overseers were there. he and his father were taken by the over- He was about nine. He is now forty-three. seers before the Justices; that P. and the I knew the gentlemen there were Magisoverseers were there; that papers were trates. I saw Mr. Partridge. The Madrawn up; that the Justices asked the father gistrates asked me if I had any objection whether he had any objection to his son being to my son being bound apprentice to Mr. bound apprentice to P; that G. W. went the Partridge. I said no. I don't know anynext day to P, and that he remained with thing else passed.

thing else passed. I don't know what him two or three years.

It also appeared was done. I went down stairs and do not from the register- book that one G. P. W. know anything more. I took my son up had, in 1824, been bound apprentice to P. the next morning to Mr. Partridge. My son The Sessions from these facts inferred that remained between two and three years with G, W. had been duly bound a parish ap- Mr. Partridge. My son left in consequence prentice to P :-Held, that they were right of Mr. Partridge's death. The overseers in drawing such an inference,

took me and my son before the Magistrates."

George Wakeham, the pauper, said: “I Upon an appeal against an order of two am the son of Philip Wakeham, the last Justices for the removal of Sarah Wake- witness. I had a conversation with Partham and her five children from the parish ridge about my being bound to him, and in of East Stonehouse, to the parish of Broad- consequence I had a conversation with my hempston, the Sessions confirmed the said father in 1824, about my being apprenticed order, subject to the opinion of the Court to Mr. Partridge. I remember going with of Queen's Bench upon the following- my father to Morley to be bound appren

tice. There were some Magistrates there. (5) 2 Cox, C.C. 348.

I recollect seeing papers drawn up. I went

« EelmineJätka »