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If, to prevent prejudice, the prisoner, at the request of his counsel, has not been arraigned on the charge for the previous conviction before the verdict has been given on the substantive charge, he may afterwards be arraigned thereon, and the jury may afterwards inquire respecting it.

This was a CASE stated by the Recorder of Hastings. At the Quarter Sessions for the Peace holden for the borough of Hastings, on the 29th of October last, Elizabeth Hilton and Joseph M'Evin were tried (with William Robert Hilton, who was acquitted) on an indictment in the following words:" Borough of Hastings, to wit.— The jurors for our Lady the Queen, upon their oaths, present that heretofore, to wit, at the General Session of the delivery of the Queen's gaol, at Newgate, holden for the jurisdiction of the Central Criminal Court, at Justice Hall, in the Old Bailey, in the suburbs of the city of London, on the 6th day of July in the year of our Lord 1857, before certain Justices of our said Lady the Queen, assigned to deliver the said gaol of Newgate of the prisoners therein being, William Robert Hilton, by the name of William Henrick, was then and there convicted of felony, and which said conviction is still in full force, strength and effect, and not in the least reversed, annulled or made void. And the jurors aforesaid, upon their oaths aforesaid, do further present that heretofore, to wit, at the General Sessions of the delivery of the Queen's gaol at Newgate, holden for the jurisdiction of the Central Criminal Court, at Justice Hall, in the Old Bailey, in the suburbs of the city of London, on the Monday, the 27th day of October in the year of our Lord 1856, before certain Justices of our said Lady the Queen, assigned to deliver the said gaol of Newgate of the prisoners therein being, Elizabeth Hilton, by the name of Elizabeth Mantrich, was then and there convicted of felony, and which said conviction is still in full force, strength and effect, and not in the least reversed, annulled or made void. And the jurors aforesaid, on their oaths aforesaid, do further present that the said William Robert Hilton, late of the parish of the Holy Trinity, in the borough of Hastings, labourer, being so convicted

of felony as aforesaid, the said Elizabeth Hilton, late of the parish of the Holy Trinity, in the said borough of Hastings, single woman, being so convicted of felony as aforesaid, and Joseph M'Evin, late of the parish of the Holy Trinity, in the borough of Hastings aforesaid, on the 23rd day of August in the year of our Lord 1858, with force and arms, at the parish aforesaid, in the borough aforesaid, and within the jurisdiction of the Court of General Quarter Sessions of the Peace of our said Lady the Queen, within the said borough, one purse containing several pieces of the Queen's current silver coin of the realm, together of the value of 12s., of the monies, goods and chattels of one John Goddard, from the person of Sarah Goddard, his wife, then and there feloniously did steal and carry away, against the form of the statute in that case made and provided, and against the peace of our Lady the Queen, her Crown and dignity.

Second count: And the jurors aforesaid, upon their oaths aforesaid, do further present that the said William Robert Hilton, so being convicted of felony as aforesaid, and the said Joseph M'Evin, on the said 23rd day of August in the year of our Lord 1858, with force and arms, at the said parish last aforesaid, in the borough aforesaid, and within the jurisdiction last aforesaid, one purse containing several pieces of the Queen's current silver coin of the realm, together of the value of 12s., of the monies, goods and chattels of one John Goddard, then lately before feloniously stolen, taken and carried away, feloniously did receive and have, they the said William Robert Hilton, Elizabeth Hilton and Joseph M'Evin respectively, then and there, well knowing the said monies, goods and chattels 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 Lady the Queen, her Crown and dignity."

At the request of the counsel for the prisoners, and to prevent the prejudice against them likely to arise from the part of the indictment charging the former convictions being read in the hearing of the jury in the first instance, the prisoners

were arraigned on those parts of the indictment only which charged subsequent offences, it being intended to postpone their arraignment on their former convictions until the jury should have delivered their verdict on the subsequent offences.

The jury found Elizabeth Hilton guilty of stealing and Joseph M'Evin guilty of receiving the goods and monies mentioned in the indictment. Upon this the prisoner Elizabeth Hilton was about to be arraigned on that part of the indictment charging a former conviction, when Mr. Ribton, counsel for the prisoners, objected, contending that this was an irregular course and could not be pursued: but the gentleman who appeared for the prosecution desiring, together with Mr. Ribton, that the matter should be reserved for the opinion of the Court for consideration of Crown Cases Reserved, I overruled the objection. The jury were then duly charged to inquire into the former conviction, and found that Elizabeth Hilton had been before convicted as alleged in the indictment. Mr. Ribton then moved in arrest of judgment, on the ground of the foregoing alleged irregularity, and also by reason of the indictment alleging the former conviction is still in full force, strength and effect, and not in the least reversed, annulled or made void," whereas by the expiry of the sentence such conviction had become vacated.

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POLLOCK, C. B.-It is a matter of perfect indifference whether the previous conviction is stated at the beginning or at the end of the indictment. We think that there is nothing in the objection, and that the conviction is perfectly good. The other Judges concurred.

1858. Nov. 6.

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Conviction affirmed.

CHAPMAN, appellant, v. RO-
BINSON, respondent.

Recognizance on Appeal under 20 & 21 Vict. c. 43. ss. 2, 3.-Highway-Encroachment-5&6 Will. 4. c. 50. ss. 63, 69.

On an appeal from the decision of Justices, under the 20 & 21 Vict. c. 43. ss. 2, 3, the appellant may enter into the required recognizance at any time during the three days allowed for applying for a case, and he need not enter into it simultaneously with making the application.

The erection of a building within fifteen feet of the centre of a carriageway, which has been repaired by the surveyor for the six months preceding, but not on any part of the highway which has been lately used for passage, is not an encroachment of which Justices can take summary cognizance under the 69th section of the 5 & 6 Will. 4. c. 50.

Case stated, on appeal, from the petty Sessions, held at Louth, in the county of Lincoln.

On the 20th of April 1858, an information was laid by John Robinson, the respondent, as surveyor of the highways for the parish of Yarborough, in the county of Lincoln, against the appellant, John Chapman, "for that he, the said John Chapman, within the space of six calendar months then last past, to wit, between the 25th of March then last past, and the 14th of April then instant, at the parish of Yarborough, did unlawfully encroach on a certain carriageway there situate, being a certain highway leading from the parish of Yarborough aforesaid to the parish of Covenham St. Mary, by then and there making, or causing to be made, a certain building, to wit, a mud and stud cottage, within fifteen feet of the centre of the said

carriageway, contrary to the 5 & 6 Will. 4. c. 50. (the General Highway Act)."

The case was heard on the 4th of May 1858, and the Justices convicted the appellant in a nominal penalty and costs.

At the hearing of the information it was proved, on behalf of the respondent, and admitted by the appellant, that the appellant had, at the period alleged, begun to erect the mud and stud cottage mentioned in the information, and that such building was still standing; that the front of the said building so erected was within fifteen feet of the centre of the said highway, that is, of that portion of the highway which was repaired with hard materials and formed the carriageway mentioned in the said information. The respondent also produced an award, made by the Commissioners under an act of parliament for the inclosure of the open fields, in the parish of Yarborough, dated the 31st of October 1813, to which award was annexed a plan of the new and old inclosures and the public roads in the parish as they existed at that time, and from such plan it appeared that a piece of land, including the present site of the cottage, or alleged encroachment, had not been fenced in at that time, and that nothing had been built upon it, but was represented in the said plan as being open to and forming part of the said highway. It was further proved, that up to about two or three years after the inclosure, the said piece of land, including the site of the alleged encroachment, was open to the highway, and could be used by the public for riding and driving upon, although the same had never been repaired as part of the road, and that nothing at that time was built upon it. That about the period mentioned, namely, about two or three years after the inclosure, one Edward Kirk built a cow-shed upon part of the piece of land in question, and nearly upon the present site of the alleged encroachment. Shortly after the erection of this cow-shed, Edward Kirk fenced off the said piece of land from the road with posts and rails. A quick fence was substituted about twenty years ago, and the piece of land in question has ever since continued, and still is, so fenced off from the road. After the death of Edward Kirk, his son took possession of the cow

shed and piece of land, and put a haystack on part of the land, and he occupied the same until his death, when his widow continued in possession until she married the appellant, who then entered into possession of the piece of land in question, and has so continued ever since. Before beginning to build the cottage, the appellant applied, in the month of March last, at a meeting of the said parish of Yarborough, in vestry assembled, for their sanction, upon which he was informed that there would be no objection, provided he did not build within fifteen feet of the centre of the road. The building or alleged encroachment does not extend nearer to the centre of the road than the cow-shed formerly did.

On the above facts it was contended, on behalf of the appellant, first, that inasmuch as the piece of land in question had been inclosed before the passing of the 5 & 6 Will. 4. c. 50, the building of the cottage thereon by the appellant, under the circumstances stated, did not constitute an encroachment within the meaning of the act; secondly, that the said cottage was not erected on the highway as defined by the 63rd and 69th sections of the act, and the case of Evans v. Oakley (1) was cited in support thereof; thirdly, that there was a bona fide claim of right and title on the part of the appellant in question before the Justices; and, therefore, they had no jurisdiction.

The grounds of the determination were, that as the piece of land in question was originally part of the highway, and had been used by the public, and that as the cottage built by the appellant was erected on a part of such original highway, and within fifteen feet of the centre of the carriageway, the encroachment was within the the 69th section of the act.

On the case being called on

Hayes, Serj., for the respondent, took a preliminary objection to the case being heard, producing affidavits which disclosed, that on the same day on which the decision of the Justices had been given, the appellant applied in writing for a case, to which application the Justices said they would accede, and on the third day from thence, and before the case was stated or

(1) 1 Car. & K. 125.

delivered to him, the appellant entered into the required recognizance to prosecute the appeal, &c.—It is submitted that the recognizance was not entered into in time. The 20 & 21 Vict. c. 43. s. 2. enacts, that either party aggrieved by the decision of the Justices may apply in writing, within three days after the decision, to the Justices to state a case; and by section 3, "the appellant at the time of making such application, and before the case shall be stated and delivered to him by the Justices, shall in every instance enter into a recognizance to prosecute the appeal," &c. The recogni

zance must be entered into at the time of application; in the present case, the recognizance was not entered into until three days after.

LORD CAMPBELL, C.J.-We think the recognizance was in time: it was entered into within the time limited for making the application for a case.

Hayes, Serj., for the respondent, in support of the conviction.-The conviction was right it was under the Highway Act, 5 & 6 Will. 4. c. 50. s. 69, for encroaching on a carriageway, by building within fifteen feet of the centre of the highway. Section 69. enacts, "That if any person shall encroach by making or causing to be made any building, hedge, ditch, or other fence, on any carriageway or cartway within the distance of fifteen feet from the centre thereof, he shall forfeit on conviction a sum not exceeding 40s."; and by section 5. a highway is defined to include any carriageway, cartway, &c.; and section 63, no doubt, says, "that where anything is forbidden to be done within a certain distance of the centre of the highway, that portion shall be deemed to be highway which has been maintained by the surveyor as highway, and repaired with stones or other materials for the six months immediately preceding;" but this definition of the highway, as what is technically called the "metal" part, only applies to the purpose of ascertaining the centre or line from which the measurement is to be made; and the side of the "metal" highway is not less highway; and the Justices having found that the land built upon is part of the highway, this finding is conclusive, and the conviction was therefore right. Evans v. Oakley is distinguishable.

Boden, for the appellant.-The statute never intended to give the Justices jurisdiction to try and determine a question of title in this summary manner, after the land has in fact ceased to be a highway so long as forty-five years. Section 63. does, in effect, prohibit the Justices from trying any such question, by defining a highway, as to these summary convictions, to be that part which has been repaired within six months; and the summary power of conviction and removal of the encroachment, given by section 69, is a ready way of preventing encroachments when recent.

LORD CAMPBELL, C.J.-The act of parliament would be harsh and tyrannical did it give Justices power of inquiring into a nice question in this summary manner, and declaring to be public property that which has subsisted for half a century as private; and I am of opinion that in the true construction of this act power is given to Justices thus to inquire into recent encroachments only. It is clear that, within fifteen feet of the centre of the carriageway, must mean within fifteen feet of the way which has recently been repaired; but the encroachment must be on the same way which has been used and enjoyed by the public as a carriageway; and in the present case the cottage was not built on any part of the highway within that. The land built upon may be, in fact, part of the highway in the general sense; but I think the Justices were wrong in holding that there had been an encroachment on the highway within the 69th section of the act, and that the conviction should be quashed.

WIGHTMAN, J.-By the 69th section the encroachment must be by building on the carriageway within fifteen feet of the centre thereof, that is, on and within fifteen feet of the centre of a highway, as defined by section 63, viz., on that part which has been recognized as road, and as such repaired by the surveyor within six months. HILL, J. (3) concurred.

Conviction quashed.

(3) Erle, J. had left the Court for chambers.

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Case stated by Justices for the consideration of this Court.

It is sufficient for the purposes of this report to state that the appellant, who was the collector of tolls at a gate, called the Thrutch Bar, on the Haslingden and Todmorden turnpike-road, was convicted of taking toll from the respondent for certain carts, for which toll had been previously paid at another toll-bar on the same turnpike-road, the respondent being, as was alleged, exempt by the provisions of the local act from payment of the toll so taken by the appellant.

Monk (Kay with him), for the respon

dent.

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The following CASE was stated at the Summer Assizes for the county of Salop, by Byles, J.

The prisoner was indicted for setting fire, in a house in his own occupation, to his own goods, consisting of furniture and stock in trade, with intent to defraud an insurance office. The goods, according to the evidence, had been insured against fire, and were in the prisoner's own house, no part of which house was burnt. It was objected, that the setting fire to the prisoner's own goods was not felony at common law; that the prisoner could only be convicted, if at all, under the 14 & 15 Vict. c. 19. s. 8, which enacts, that if any person shall wilfully and maliciously set fire to any goods, being in a building, the setting fire to which building is made felony by statute, he shall be guilty of felony; that the setting fire to a man's own house, being no offence at common law, the only statute which makes it a felony is the 7 Will. 4. & 1 Vict. c. 89. s. 3, whereby it is enacted, that whosoever shall maliciously set fire to any house, &c., whether the same shall be in the possession of the offender or of any other person, with intent thereby to injure or defraud any person, shall be guilty of felony; that the setting fire to a man's own house with intent to defraud, not by burning the house, but by burning the goods therein, was not made felony by the last-mentioned statute. The jury found the prisoner guilty of maliciously setting fire to his own goods in his own house, with intent, by burning the goods, to defraud

Coram Pollock, C.B., Williams, J., Wightman, J., Byles, J. and Hill, J.

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