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Larceny-Embezzlement.

A foreman employed to sell goods sold some to a customer, who bought them bond fide as bought from the master, and paid the foreman for them. The foreman did not enter the sale in his books or account for the price to his master, as in duty bound, but concealed the whole transaction and employed the money for his own use:-Held, that the foreman was not guilty of stealing the goods, as the sale was binding as between the buyer and the master, but that his offence was embezzling the price.

The following CASE was reserved by the chairman of the Kesteven Quarter Sessions.

Lincolnshire, Kesteven.-At the General Quarter Sessions of the Peace of our Sovereign Lady the Queen, holden at Bourn, in and for the said parts and county, on Monday the 28th day of June 1858, before the Right Hon. Sir John Trollope, Bart., chairman, William Parker, Esq., and others, Justices of the Peace of our said Sovereign Lady the Queen, George Smith Betts was indicted, for that he, on the 24th day of May 1858, at Spittlegate, feloniously did steal, take and carry away twenty stones' weight of sharps of the goods and chattels of John Basker and another.

Upon the trial, it was proved, that the prosecutors, John Basker and his brother, were millers in partnership, having a mill

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

at Spittlegate, and that the prisoner had for six months been in their employ, at weekly wages, as foreman at the mill, superintending the business, by selling for them, on credit or for ready money, flour, sharps, &c., and that the prisoner was furnished with a printed double cheque-book (the cheque and counterfoil), and also with a cash-book, the former for entries to contain the name of the purchaser, the date of purchase, the quantity purchased, and the price charged, a copy of which it was his duty to deliver with the goods to the purchaser at the time of sale, retaining the counterfoil in the book for the inspection of his masters on settling his weekly account, and the latter (the cash-book) to contain an immediate entry and account of receipts and payments by the prisoner.

A settlement of these books and accounts between master and servant took place every Saturday night, when the books were produced and examined, and the balance paid over. It was also proved (the result of suspicions and inquiry) that Mary Moss, who kept a retail shop in Spittlegate, on Thursday the 20th of May 1858, gave the prisoner an order for eight stones of sharps, which were delivered on the same day by John Cook, the waggoner, in the employ of the prosecutors, without a cheque having been delivered at the same time. Cook asked the prisoner for such cheque, and received for answer that he (the prisoner) would take the cheque himself, and that Mrs. Moss would pay him; and the price, 8s., was paid by Mrs. Moss to the prisoner on the following. Saturday morning. It was also proved that again, on Monday the 24th of May, Mrs. Moss gave the prisoner another order for twelve stones of sharps, which were delivered on the same day and paid for on the following Saturday morning by Mrs. Moss to the prisoner. Upon each occasion the sharps were weighed by the prisoner in the presence of John Cook, the waggoner, as servant in the employ of the prosecutors, placed in sacks belonging to the prosecutors, and on the first occasion conveyed by Cook in the prosecutors' waggon to Moss's house, where the same were shot into a bin by him, Cook; and on the second

occasion the prisoner accompanied Cook with the prosecutor's waggon to Moss's house, and took the sharps out of the waggon and shot them into the bin. The prisoner delivered cheques to Moss in the course of each day of the delivery of the goods, and on payment being made gave a receipt at the foot of the cheque, but the cheques so delivered, although belonging to the prosecutors, and precisely similar, were not taken from the regular cheque-book in use. There was not any entry, either in the cheque-book or in the cash-book, of the sale of the sharps or payment of the money. The first sale and payment ought to have appeared in the accounts delivered by the prisoner on Saturday the 22nd of May, and the second sale and payment in the accounts delivered by the prisoner on Saturday the 29th of May. For stealing these eight stones and twelve stones, making together the twenty stones of sharps, the prisoner was apprehended, committed, tried and convicted.

Upon the verdict of guilty being pronounced, the prisoner's counsel asked the Justices to grant a case for the Court of Criminal Appeal, on the point whether the prisoner was, upon the facts proved, legally guilty of larceny and the indictment sustainable. Whereupon the Court granted the application and postponed judgment on the conviction, and discharged the prisoner on recognizance of bail to appear and receive judgment.

The opinion of the Court hereon is, therefore, respectfully requested.

This case was not argued.

POLLOCK, C.B. (after reading the case) proceeded-We are all of opinion that as the goods were sold to the buyer for the employer in the regular way, and the money received from him, the prisoner cannot be indicted for stealing the goods. It may be said that his conduct amounts to the same thing as stealing. But, in reality, this was a valid sale as between the buyer and the master, for the prisoner had authority to sell, and was employed to sell, and did sell the goods on his master's account. All that he did objectionable was, that he concealed the transaction, and did not enter the sale in

his books or account for the money received for the price of the goods, but put it into his own pocket. He was, no doubt, guilty of embezzlement, but not of stealing. Conviction quashed.

[CROWN CASE RESERVED.]

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1859. Feb. 5. Larceny - Adulterer carrying off Husband's Goods with the Wife.

THE QUEEN . WILLIAM
BERRY. **

The prisoner, watching his opportunity when the prosecutor was absent, took away the prosecutor's wife, and with her several boxes filled with the prosecutor's property. The prisoner and the wife were found living together in adultery. The property was all in their lodgings:-Held, that the prisoner was indictable for stealing the property of the prosecutor, as he took the property under such circumstances that the assent of the husband to the taking could not be presumed.

The following CASE was reserved and stated by the Recorder of Manchester.

William Berry was indicted at the General Sessions for the city of Manchester, held at Manchester, on the 2nd of August 1858, and was found guilty of stealing one bed, two boxes, four pairs of blankets, six sheets, two dresses, and two carpets, the property of Edward Elliott, of the value of 5l. and more, in his dwelling-house. On the 25th of June, and for six months previous, the prisoner lodged at the house of the prosecutor, and knew that the prosecutor would have to go out very early that morning. On the 24th of June, the prisoner engaged a porter to be near the prosecutor's house, at seven o'clock the next morning, with his cart. He went there; the prisoner came to him, and took him to the door of the prosecutor's house, where he drew up his cart. The prisoner and the wife of the prosecutor were there together in the house, and were

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

jointly engaged in packing up the articles mentioned in the indictment, in boxes, and when so packed up the prisoner brought the boxes to the door, and the carter assisted him to put them upon the cart. They were then driven to the railway station, the prisoner, prosecutor's wife, and her three children accompanying them, and all left by the train for Leeds. A fortnight after this, the prisoner and the prosecutor's wife were found living together in a house in Leeds, which she had taken in her own name. They were both in the house when the prosecutor and the officer went there, and all the property so taken from the prosecutor's house at Manchester was found there. The prosecutor's wife was called on the part of the prisoner, and swore that they had not gone away for the purpose of carrying on an adulterous intercourse, and in fact never had committed adultery together. I told the jury, that if they were satisfied that the prisoner and the prosecutor's wife when they so took the property went away together for the purpose of having adulterous intercourse and had afterwards effected that criminal purpose, they ought to find the prisoner guilty; but that if they believed the wife, that they did not go away with any such criminal purpose, and had never committed adultery together at all, the prisoner would be entitled to his acquittal. The jury found him guilty. The question for the opinion of the Court of Criminal Appeal is, whether my direction was right. Sentence was deferred, and the prisoner admitted to bail.

The case was not argued.

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Highway-Old Road altered by Award of Inclosure Commissioners Declaration by Justices-Road repaired.

Inclosure Commissioners, by their award in 1840, set out a public highway which ran in the same track with, and included but straightened and widened an ancient highway repairable by the parish. The road passed through allottable land on each side, except that on one side in one part there was an old inclosure. Before and since the award, the parish had done repairs to the road. No steps had been taken by the Commissioners for putting the road into complete repair, pursuant to the statute 41 Geo. 3. c. 109. ss. 8. and 9; nor had there been any declaration by Justices at their special sessions that the road had been fully and sufficiently formed, completed and repaired :-Held, that the parish was not indictable for not repairing this road.

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

The indictment charged the defendants with the non-repair of a public carriageroad in the parish of East Hagbourne, called the Coscot and Didcot Road, branching out of a public road, called the Coscot and Wantage Road, near Coscot Cross and leading into the Wallingford and Farringdon turnpike-road.

The defendants pleaded that they were not guilty.

The facts, so far as they are material to the question of law reserved, are these: -The road indicted, called the Coscot and Didcot Road, was an ancient public highway within the parish leading from the Coscot and Wantage public road on the south, also within the parish, to the Wallingford and Farringdon turnpike-road towards the north. Other roads nearly opposite the communication of the indicted road with these two roads branch off from these roads respectively. The

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

road which branches off from the Coscot and Wantage public road on the south is entirely, as to part of its length, in the indicted parish. In the year 1840 the parish of East Hagbourne was inclosed under the provisions of the public general act, 6 & 7 Will. 4. c. 115, which act incorporates, by section 52, the provisions of the General Inclosure Act, 41 Geo. 3. c. 109. The inclosure award was published on the 14th of June 1840. Under the heading "Public Carriage-roads and Highways,' the award thus describes the road in question:-"No. 2, Coscot and Didcot Road. One public carriage-road and highway, of the width of thirty feet, branching out of the public carriage-road, called the Wantage Road, at or near Coscot Cross, and thence in or near its present track by the west end of the parish into the Wantage and Wallingford turnpikeroad."

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All the other public roads in the parish are described by the award in the same manner. The Inclosure Commissioners had before the award made some alteration in the original Coscot and Didcot road by straightening and widening it, but the whole of the original road is comprehended within the existing road as set out in the award, and described in the indictment. The public can go from the point where the indicted road leaves the Coscot and Wallingford road, to the point where it reaches the Wallingford and Farringdon road, by another road called the New Road, which is an ancient public road, but the distance is nearly three times as great.

It is admitted, by the defendants, that the road indicted is a public road, that the indicted parish has repaired it both before and after the award, and that at the time of indictment found it was out of repair.

It is admitted, by the prosecution, that no steps were taken by the Commissioners for putting the road into complete repair (see 41 Geo. 3. c. 109. ss. 8. and 9.), unless the contrary must be inferred from the foregoing extract from the award; that there never was any declaration by Justices at their special sessions that the road had been fully and sufficiently formed,

completed and repaired, and that the proceedings had been taken under the 5 & 6 Will. 4. c. 50. s. 23.

The indicted road passed through allottable land on both sides of it, except that Hagbourne Park, which is on a small portion of the east side of the road, is an old inclosure. So much of the plan annexed to the award as shews the indicted road and the roads referred to in the above statement is to form part of the case.

The defendants objected that the proviso in the 41 Geo. 3. c. 109. s. 9. applied to roads continued by the award as well as to roads newly made under it, and that as the road in question has not been by the Justices at their special sessions declared to be formed, completed or repaired, the parish were not at present chargeable with the non-repair. They cited The King v. Hatfield (1).

The prosecutors insisted that the defendants were liable, and cited The Queen v. Cricklade (2). They further insisted that the road in question was a prolongation of old public roads, in the parish, beyond the limits of the inclosure-see Thackrah v. Seymour (3), and that the defendants by repairing since the award had waived any objection and admitted their liability.

I reserved the objection for the opinion of the Court, and subject thereto advised the jury to find a verdict for the Crown.

The case was argued (Nov. 20, 1858) by

Gray, for the defendants, and by
Cripps, for the prosecution.

Cur. adv. vult.

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A society, called the Bradford Library and Literary Society, were owners and occupiers of a library and reading-room, the books consisting of the standard authors, of reviews, magazines, pamphlets and novels; the number of proprietors, or subscribers to the society, was limited to 600 (temporary residents being admitted at a quarterly subscription); and they had the exclusive privilege of using the library and reading-rooms, and of having a certain number of books at their own houses, and of each introducing one nonresident to the library. Every person becoming a proprietor by the purchase of a share paid eight guineas, and an annual subscription of one guinea in advance, or he might compound for his annual subscription during his life by one payment of fifteen guineas; fines were imposed for allowing the subscription to get in arrear, and if the subscription was not paid within three years the share became forfeited.

Name of occupier.

Bradford Subscription Library.

There

were also fines for other infringements of the rules. Any proprietor not indebted to the society might transfer his share, subject to the regulations for the time being. No bonus or division of money was allowed by the laws among the shareholders; and the funds of the society were exclusively applied to the library and objects connected with it : -Held, that the society was instituted for the purposes of science, literature and the fine arts exclusively; and that the fact of the use the use of the library and its contents being confined to the subscribers did not make their purposes less the primary object of the society, or prevent it from coming within the exemption in the 6 & 7 Vict. c. 36. s. 1.

Held, also, that the contributions were voluntary, the obligation to pay being voluntarily incurred; and that the personal benefit derived by the contributors, in return for their subscription, was not such as to take them out of the meaning of "voluntary contributions" in the proviso to the above section.

Held, therefore, thirdly, that a building occupied by the society exclusively was exempt from rates.

CASE stated, by consent, under the 12 & 13 Vict. c. 45. s. 11, on appeal against a poor-rate for the township of Bradford made on the 30th of June 1858, in which the appellants, the Bradford Library and Literary Society, were assessed as below:

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The shareholders of the society claim exemption under the 6 & 7 Vict. c. 36. s. 1.

The society to which the rated property belongs was formerly known by the name of the Bradford Subscription Library, which, as a society, purchased the said. property for the residue of a term of 990 years. By deed, of the 4th of August 1853, the property rated was purchased by the appellants; and by a supplemental deed, of the 16th of April 1856, the shareholders of the Bradford Library and Literary Society ratified, confirmed and agreed NEW SERIES, XXVIII.-MAG. CAS.

to the rules and regulations made at a meeting of the shareholders held on the 26th of February 1856, which were inserted in a schedule (a copy of which rules, as well as copies of the two deeds, were made part of the case); and the trusts of the deed of the 4th of August 1853, and the acts of the trustees under them, were ratified by the shareholders of the said society.

Under the provisions of the said two deeds, and of the said laws and regulations, the society was managed at the time of the rate above set forth, and was

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