the insurance office. I reserved the question whether the act so found amounted to a felony; but sentenced the prisoner to penal servitude, on which sentence he is still in custody.

Cook Evans, for the prisoner.-If a man sets fire to his own goods in his own house, though with intent to defraud an insurance office, he commits no felony at common law. Setting fire to one's own house is not any felony at common law-1 Hawk. 106.

Arson is defined to be the malicious and voluntary burning the house of another-1 Hale, P.C. 566. If a man rightfully occupies the house of another, and burns it wilfully, it is not arson at common law-The King v. Spalding (1), The King v. Breeme (2), Isaac's case (3). By 43 Geo. 3. c. 58, it was first made felony in any one to set fire to a house, whether in his occupation or not, if done with intent to defraud.-See 4 Black. Com. c. 16. p. 221. That statute is repealed, so far as relates to setting fire to buildings, by the 7 & 8 Geo. 4. c. 27, but re-enacted with amendments in the statute 7 & 8 Geo. 4. c. 30. s. 2. The statute 14 & 15 Vict. c. 19. s. 8, under which the present indictment is framed, is the only statute that applies to setting fire to goods; but that is only a felony when they are in a building, "the setting fire to which is made felony by this or any other act of parliament." This section, in the words. "other act of parliament," refers to the statute 12 Geo. 3. c. 24. s. 1, which is in pari materiá, by which setting fire to any buildings belonging to the arsenals or dockyards, &c. is made felony. It does not refer to the statute 7 Will. 4. & 1 Vict. c. 89. s. 3; for that act does not make the simply setting fire to a house felony, but only when done "with intent thereby to injure or defraud any person." intent to defraud is not necessary to constitute the offence under the statute 12 Geo. 3. c. 24. The 14 & 15 Vict. c. 19. does not use the word "house" or "shop," but refers to large public buildings-2 Russell on Crimes, 552. At any rate, the statute 7 Will. 4. & 1 Vict. c. 89. has no

(1) 1 L. C.C. 218. (2) Ibid. 220.

(3) 2 Russell on Crimes, 550.

An

application on the facts. There was here no intent to injure or defraud by setting fire to any building, but only by setting fire to the goods. To be within that act, the injury or defrauding must be the immediate and direct consequence of setting fire to the building.

[POLLOCK, C.B.-Is there any count in the indictment which brings the offence within the two statutes? The setting fire to the goods, per se, is no offence. It is only an offence when done in a house to which the setting fire would be felony.]

Scotland, for the prosecution. The prisoner set fire to the goods, with intent thereby to defraud the insurance office. This is an offence within the statute 14 & 15 Vict. c. 19. The goods were in a house, the burning which, with intent to defraud an insurance office, would be felony within the statute 7 Will. 4. & 1 Vict. c. 89. The indictment is sufficient. It alleges that the prisoner set fire to the goods in a house in his own occupation, with intent to defraud the insurance office. According to the construction contended for, it would be a felony to set fire to goods in a railway station, but not in a house.

[HILL, J.-The statute 12 Geo. 3. c. 24. provides for the case of setting fire to stores in a building within that act.] Cook Evans replied.

POLLOCK, C.B.-We are all of opinion that the conviction ought to be affirmed. The objection taken for the prisoner is this: that with respect to the last act of parliament, 14 & 15 Vict. c. 19. s. 8, which provides, 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, applies only to the case where the setting fire to the house, per se, is an offence; and we are referred to a statute, 12 Geo. 3. c. 24, which makes it an offence to set fire to certain public buildings; and it is urged that we therefore ought not to connect the statute on which the indictment is framed with the statute 7 Will. 4. & 1 Vict. c. 89. s. 3, so as to assist this indictment, and that we cannot so connect them without importing something that the legislature has not expressed. But we are all of opinion that that objection can

not prevail. I think it very likely, that if this objection had been made fifty years ago it would have succeeded. Acts of parliament were then required to be perfectly precise, and no resort was had to a reasonable construction of the act, and the Courts were in the habit of saying, if the facts did not bring the case exactly within the words of the act of parliament, the prisoner must escape. But this is not the present mode of construing statutes. We look to see what is really the intention of the legislature. Now, under the act of parliament referred to by the prisoner's counsel, the simply setting fire to a building would not be a felony. It would be necessary in the indictment to add the words "wilfully and maliciously," which are not in the act 14 & 15 Vict. c. 19. To make it an offence, the setting fire to a house must be wilful and malicious, or there must be some one in the house, or it must be done with intent to injure or defraud. Under the statute 14 & 15 Vict. c. 19, we think the offence is complete if there be a setting fire to the goods under such circumstances as, if shewn with respect to a house set on fire, would render the setting fire to the house a felony. Here the intent to defraud is alleged with respect to the goods. The setting fire to the house with the like intent would be felony. The offence, in our opinion, is sufficiently stated in the counts, and supported by the finding, to bring the ease within the acts of parlia

has the means of knowing him by reason of the marks on the article indicating the owner. But the finder is not guilty of felony merely because, when afterwards learning who the owner is, he fails to make restitution, and fraudulently retains the property.

The following CASE was stated by the deputy chairman of the Dorset Quarter Sessions.

At the General Quarter Sessions of the Peace for the county of Dorset, holden at Dorchester, on the 19th of October 1858, David Christopher was tried on an indictment charging him with stealing, on the 13th of October in the year 1858, at the parish of Stinsford, in the county of Dorset, 47. in money and two purses, of the goods and chattels of one Jane Lovell. There was also a count charging him with feloniously receiving the same property, knowing it to have been stolen. It appeared from the evidence that the prosecutrix left her master's house between eleven and twelve o'clock in the morning of the 13th of October, to go to Dorchester (a distance of about a mile), having in her possession a purse of green leather (commonly called a porte-monnaie), containing within it another smaller purse, about the size of a half-crown, in which there were three sovereigns and two half-sovereigns. In the public path between Stinford House and the first meadow, as she supposes, she dropped the purse, but thinking she might have left it on her table, she went on, and returned about one o'clock. Finding out her loss, she went, in the afternoon, to Dorchester, and had the property cried by a public crier, describing it as a green leather purse, and a smaller one inside, and that they contained three sovereigns and one half-sovereign, and a half-crown, or 31. 12s. 6d. This was an error, as it really contained, as she found afterwards, two half-sovereigns, instead of only one: 41. 2s. 6d. About four o'clock the prisoner was at the Bull's Head public-house, with a man named Upshall, whom he treated to beer, and paid for it with a sovereign, which he took out of a purse. Whilst they were sitting at the table together in the tap, the crier came by and cried something. The landlady, Mary Jane Russell, went to the

door to hear. Upshall asked her what it was cried. The landlady, from the passage, said "some money lost, 3l. 12s. 6d." The prisoner was taken up eventually, at twelve o'clock at night, at another publichouse, and the two purses, with six halfsovereigns, two shillings and sixpence in silver, and some pence were found on him. The constable said, "These things were lost."-Prisoner said, "Well, I know I did pick them up."-Constable said, "There more money than this."-Prisoner said, "I know I have done wrong."

was

On the part of the prisoner it was contended, that at the time he took the purses (which was admitted) he had no felonious intent; that there was no name or special mark on the purse or the money, and that the subsequent appropriation did not amount to larceny; that though civilly he was not criminally liable. In summing up, I told the jury that a felonious intent was held to be a necessary ingredient in every larceny, but that intention was to be judged of by acts subsequent as well as immediate; that if they thought the conversion of the money to his own use, without inquiry, was proved, and that there was, though no name or mark on the purse, yet such peculiarity in it as containing a smaller one, as to warrant some inquiry, and, above all, if they were satisfied that the prisoner, when sitting in the public-house, heard the words of the landlady, which Upshall said he heard, and then did not take measures to make restitution, that I thought they might infer felonious intention, and find him guilty. The jury returned a verdict of guilty on the count for stealing. A previous conviction was then proved, and the prisoner was sentenced to six calendar months' hard labour. On application of counsel for the prisoner, a case was granted, and execution of judgment respited till the decision of the Court above was known. I respectfully submit the question whether the above facts warranted, in point of law, the finding of the jury in this case.

Ffooks, for the prisoner.-The prisoner is not guilty of felony, for there was no name or mark about the purse which could lead him, at the time he picked it up, to know who the owner was, or to believe that he could readily be found. The Queen

v. Thurborn(1) and The Queen v. Preston (2) are conclusive authorities, that the question always should be respecting the prisoner's intention at the time he finds the thing. If he then intends to keep the thing to himself, knowing the owner, or knowing by the mark on the article that he can easily be found, he is guilty of felony, but not otherwise. The direction of the chairman would lead the jury to think that if he had the wicked intention of retaining the purse, after he heard the purse cried, he would be equally guilty.(He was here stopped by the Court.)

Stock, for the prosecution. The prisoner was guilty of stealing, if at any time he intended to appropriate the article to himself.

[WILLIAMS, J.-It is no offence in a finder simply intending to appropriate an article he has found to his own use. To make it a felony, he must intend to do it dishonestly.]

The peculiar nature of the property lost being a purse within a purse must have given the prisoner reason for supposing that the owner might be found. Besides, his subsequent conduct may be looked to, and shews a dishonest intention.

[WILLIAMS, J.-His subsequent conduct is consistent either with his having originally an honest intention, or with his then having a dishonest intention.]

It is a question of degree. Had the prisoner kept the purse for some time, waiting to see if a claimant appeared, instead of immediately spending the money, the case would have been different. The prisoner could have easily found the owner had he tried.

[CHANNELL, B.-The Queen v. Dixon (3) shews that the prisoner must have the immediate means of knowing him.]

The direction of the chairman only draws the attention of the jury to the proper points.

POLLOCK, C.B. I think that we are bound by the decision of The Queen v. Thurborn, which we act upon and adopt. To warrant the conviction, there must be

(1) 1 Den. C.C. 387; s. c. 18 Law J. Rep. (N.S.) M.C. 140.

(2) 21 Law J. Rep. (N.s.) M.C. 41. (3) 25 Law J. Rep. (N.s.) M.C. 39.

something more shewn than appears on this case. There must be a felonious intention at the time the prisoner finds the article.

WIGHTMAN, J.-We are bound by the decision in The Queen v. Thurborn.

WILLIAMS, J.-I think that The Queen v. Thurborn was rightly decided, though I do not agree with some of the principles there laid down. The way in which this case was left to the jury would have the direct tendency to lead them to suppose, that if the prisoner at the time he was in the public-house had then for the first time a felonious intention, he might be convicted on the charge of stealing. The evidence shews, according to my view of it, that the prisoner found the purse, and took possession of it as a finder, and that the wicked intention of appropriating it came upon him afterwards.

CHANNELL, B.-The case of The Queen v. Thurborn, followed by The Queen v. Preston and The Queen v. Dixon, shews, that the question to be determined is, what was the intent of the party at the time he took original possession of the property? I do not say that you may not look at subsequent circumstances with a view to that; but that question was not put to the jury. It is quite in accordance with the propositions laid down by the chairman, that the jury may have convicted the prisoner, though they believed that he conceived the felonious intention some time after he first became possessed of the purse.

HILL, J.-In order to justify a conviction, two points must be made out by reasonable evidence: first, that the prisoner had at the time of finding the purse an intention of appropriating it to his own use; secondly, that he had at that time reasonable ground for believing that the owner could be discovered; and that may be either from previous knowledge of the chattel, or from there being some name or mark upon it at the time he picked it up which indicated who the owner was. To be guilty of felony, the finder of an article must know who the owner is, or have reasonable means at the time of finding it of knowing who he is.

Conviction quashed.

A marsh wall or embankment that keeps back the river Thames at high water from inundating the Isle of Dogs, and through which sewers pass which drain the isle at low water, is a sewer" within the meaning of the 204th section of the 18 & 19 Vict. c. 120, which gives power to the district board of works in whom any sewer is vested to remove any building erected thereon without their consent.

Quære-Whether the marsh wall was vested in the district board under section 68. and Schedule A, or in the Metropolitan Board of Works under section 135. and Schedule D; but the latter never having exercised any jurisdiction over it, and the district board being de facto in the exercise of that jurisdiction,-Held, on a complaint by them against persons who had treated with them as having jurisdiction, that the marsh wall

was vested in the district board.

Semble-That a house, built with foundations placed on the surface, without any digging out, is within section 76, which enacts, "that before beginning to lay or dig out the foundation of any house seven days notice shall be given to the district board."

[By Lord Campbell, C.J. and Erle, J., Crompton, J. doubting.]

The

is an immemorial wall or embankment of earth within the limits of the said district, which keeps back the waters of the Thames at high tide from the Isle of Dogs. soil and freehold of that portion of the marsh wall, as to which questions have arisen between the appellants and respondents, is vested in the Ironmongers' Company. The marsh wall was before the passing of the 18 & 19 Vict. c. 120. within the jurisdiction of the Metropolitan Commissioners of Sewers. The Metropolitan Board of Works have never exercised any jurisdiction over it. On the eastern side of the Isle of Dogs are situate two main sewers, called respectively Great Sluice and Drunken Dock Sluice, which drain the whole of that part of the isle south of the West India Dock Basin. These sewers pass through and under the marsh wall in their course to the Thames, one at a considerable distance to the east, the other at a considerable distance to the west of that portion of the marsh wall which is the subject of dispute. These two sewers are referred to in Schedule D. annexed to the 18 & 19 Vict. c. 120. These sewers have also attached to them four inlet sluices, used for the purpose of flushing, which inlet sluices pass under the marsh wall at various places, but all of them at a considerable distance from that portion of it which is the subject of dispute.

In October 1856 the appellants authorized the respondents to cut the marsh wall within specified limits; the respondents, however, cut through about 32 feet in length and 8 feet in depth, and 30 feet in breadth of the wall (which was about 60 feet broad at that place) beyond the specified limits. And thereupon the appellants on the 7th of January 1857 served them with a notice, ordering them to reinstate this part of the wall; and after some further correspondence, on the 5th of March 1857, the appellants served the respondents with another notice, reciting the former, and requiring them within seven days to reinstate that part of the marsh wall, and in case of default that they, the appellants, would cause the houses built thereon without their consent to be demolished or altered, and the wall to be re-made, the expenses to be

recovered from the respondents according to the act. Some correspondence ensued, and on the 16th of March 1857 the appellants wrote, finally refusing to assent to a plan submitted to them by the respondents, and calling upon them to comply with the notice of the 5th of March.

Early in April 1857 the respondents built four houses, in respect of which no question arises, and which are still standing. In the first week in May 1857 the respondents began to build two other houses, one of which was completed as far as concerned the carcase, the other was scarcely begun by the 28th of the same month. No works of any kind were done by the respondents in respect of these two houses before the first week in May 1857, except the building of the retaining wall, which wall was intended to act as the outside wall of the second house if it had ever been completed, and was constructed with buttresses, and in other respects so as to serve that purpose: the entire site of the incomplete house and the greatest part of the site of the completed one was on the ground which had been occupied by the portion of the marsh wall removed by the respondents without leave from the appellants. The four houses still standing are drained, and the two houses removed by the appellants were intended to be drained, by drains running into a sewer under the jurisdiction of the appellants; in building these last two houses, however, so far as they were built, no foundations were laid or dug out, nor was any part of the same built over any sewer whatever, unless the marsh wall be a sewer.

On the 12th of May 1857 the appellants served the respondents with a notice which,

after reciting that the respondents had not given seven days' notice to the board before beginning to lay and dig out the foundations of certain new houses lately begun to be erected by the respondents, contrary to the orders of the board, and that without the consent of the board they had cut away part of a sewer called the marsh wall, and had not within fourteen days after notice from the board caused the same to be reinstated, and that they had without the consent of the board erected certain buildings in and over a certain