under the commission. Now this, we apprehend, must have proceeded on the ground that while the whole body of the Justices named in the commission constituted the Court of oyer and terminer, each Judge sitting under it represented the Court, so that whatever took place before the single Judge was considered as done constructively before the whole Court. Hence, at the assizes, every trial on the criminal side of the Court, even when it takes place, not before a Judge, but before a serjeant or Queen's counsel, is represented on the record, as is also the case in trials at Nisi Prius, as taking place before both the Judges of the superior courts, "and other Justices their fellows."

It is true that a belief has prevailed that on the trial of indictments before a single Judge, the presence of one of the officers of the assize (who are always included in the commissions of oyer and terminer on the circuit) was necessary properly to constitute the Court. But we think that this is only the case where no other member of the commission is acting under it so as to be constructively present. This view is borne out by the fact, to which we have already adverted, that by the caption of an indictment the proceedings are stated to have taken place before both of the Judges of Westminster Hall holding the assize, though one only is present; the same thing occurring where a trial takes place before a serjeant-at-law or Queen's counsel, while, on the other hand, on the Welsh circuits and winter circuits, where there is no second Judge, the practice is to represent the proceedings as taking place before the Judge and the officer who, being included in the commission, of course forms part of the Court.

All this seems to us to shew that under a commission of oyer and terminer, not only may the general Court be divided into as many Courts as convenience may require, but that each separate Court is to be considered as held, not only before the Judge actually sitting, but also constructively before all the members of the commission then acting under it. The language of the act of 4 & 5 Will. 4. c. 36, and of the commissions under it, being the same as in the general commission of oyer and terminer, and the practice having, as we have said, prevailed for centuries, that, where the trial takes place before a single Judge, such trial is

recorded as taking place before the required quorum, we cannot suppose that it was the intention of the legislature that different principles of construction, or a different course of practice, should be introduced into the Central Criminal Court,-we cannot suppose that, while a trial for a capital offence can take place elsewhere before a single Judge, the presence of an alderman should be necessary, in addition to that of a professional Judge, on such a trial at the Central Criminal Court.

Applying, therefore, the inveterate practice of the criminal courts of this country to the proceedings of the Central Criminal Court, it appears to us that while, as it seems, other Judges under the same commission were sitting at the then sessions, the presence of a second member of the commission in the Court presided over by Mr. Commissioner Kerr on the trial of this indictment was unnecessary. It would have been, in our judgment, sufficient and perfectly proper, in accordance with the general practice of criminal courts, to state on the record that the proceedings were had before Mr. Commissioner Kerr and any other Judge actually sitting under the commission in one of the other courts, or, indeed, before any two Judges actually sitting in the principal court. It is true that, in this record, the proceedings are not represented simply as having been had before the Commissioner and some other Judge then sitting. At the instance of the defendant, in order to raise this objection, the trial is stated to have been held before Commissioner Kerr and different aldermen successively. But as we are of opinion that the presence of a second Commissioner in the Court, presided over by Mr. Kerr, was unnecessary, and, as it appears from the record, that other members of the commission were sitting in another court at the same time, we think that it sufficiently appears from the whole record that the trial took place under such circumstances as to make the conviction and judgment good.

As a further argument against this ground of error, it was urged by the counsel for the Crown that, even supposing that the attendance of one of the aldermen was necessary, in addition to the presiding Judge, yet as his attendance could only be required to constitute and to maintain the continuity of the Court, and, as according to the inva

riable practice, a lay member of a commission so present takes no part, judicially, in the proceeding, which is left entirely to the professional or presiding Judge. The presence of such second Judge is only required to satisfy a technical necessity, and is consequently a mere matter of form; and hence so long as a second member of the commission is present, to make up the quorum, it must be perfectly immaterial if the person of such additional Judge is changed in the course of the trial.

My learned Brothers are of opinion that this argument is well founded, and sufficient to enable the Crown to have judgment on the first ground of error assigned. Speaking for myself, I feel bound to say that I am not prepared to adopt this view. If a second member of the commission be necessary on a trial to constitute the Court, I entertain grave doubts whether, inasmuch as such member is appointed a Judge by the commission, and attends in the character of a Judge, he must not be taken to be an integral member of the Court, and, as the commission makes no distinction between professional Judges and lay Judges, might not, if he thought proper, take part, and under very special circumstances might be bound, as a matter of duty, to take part in the proceedings; just as when two of the superior Judges sit on a trial at the Central Criminal Court, the second Judge frequently does. This being so, I cannot but think that if a second Judge were necessary, the Judge must be the same throughout the trial, just as, where a trial takes place before a single Judge, the Judge must be the same throughout, and the cause cannot be heard in part before one Judge and in part before another, not only because such a proceeding would be contrary to the established course of all judicial procedure, and an outrage on all judicial propriety, but also because in such a case the cause would not have been "inquired of" and "heard" by the Judge or Judges by whom "it is determined and adjudged."

Feeling pressed by these considerations, I prefer to rest my judgment on the former ground, on which we are all agreed, that the Erst head of error must be decided adversely to the defendant.

The second ground of error assigned is, that the indictment was tried in a second Court, while one Court only could be held NEW SERIES, 28.-MAG. CAS.

consistently with the act of parliament constituting the Court. In disposing of the first point, we have incidentally disposed of this. When it is settled that the act is to be read by the light of what is the established practice under commissions of oyer and terminer in general, the objection necessarily fails. According to the practice of centuries, the Judges acting under the latter commissions, as well as those acting under the Commissions of Nisi Prius, have been in the habit of dividing their Courts, and of sitting, when business required it, in two or more Courts for the despatch of business, at the same time. The same practice prevailed at the Old Bailey, before the present Court was established. It has existed at the Central Criminal Court since the Court was established thirty-six years ago, and it has never occurred to any of the very many learned Judges who have sat there, or of the able counsel who have practised there, to question the perfect propriety of this course of proceeding. We think there is nothing whatever in the objection thus taken.

The third ground of error is, that Mr. Commissioner Kerr had ceased to be qualified to act as a Judge under the 4 & 5 Will. 4. c. 36. This objection may be disposed of in a word. It is true that the Sheriffs' Court, as a Judge of which Mr. Kerr is a Judge of the Central Criminal Court, has been by recent acts of parliament converted into a county court, for the purposes for which county courts have been elsewhere established, within the district in which it previously exercised jurisdiction. But the Sheriffs' Court has never been abolished, and by the saving clause of the 30 & 31 Vict. c. 142. the powers of the Judges of that Court have been expressly preserved, and the Judges of the Sheriffs' Court having been appointed Judges of the Central Criminal Court by the act constituting that Court, it follows that, in respect of the latter jurisdiction, their authority remains unaltered. This ground of error appears to us wholly untenable. The grounds of error assigned thus failing, it follows that our judgment must be for the Crown.

Judgment for the Crown.

Attorneys-L. Heritage, for the plaintiff in error; Lewis & Lewis, for the Crown.

Р

An indictment contained a count for unlawfully wounding, and another count for unlawfully inflicting grievous bodily harm. The jury returned a verdict of guilty of an assault:-Held, a lawful verdict which the Judge was bound to receive, and a conviction upon the above indictment was affirmed.

The following CASE was reserved by the chairman of the Quarter Sessions of the North Riding of Yorkshire. The prisoner, John Taylor, was indicted for a misdemeanor, upon an indictment of which the following is a copy: "North Riding of Yorkshire. The jurors for our Lady the Queen, to wit, upon their oath, present that John Taylor, on the 3rd day of January, 1869, unlawfully and maliciously did wound one Thomas Meek. And the jurors aforesaid, upon their oath aforesaid, do further present that on the day and year aforesaid the said John Taylor did unlawfully and maliciously inflict grievous bodily harm upon the said Thomas Meek." Upon this indictment the jury returned a verdict of guilty of an assault. The counsel for the prisoner contended that the prisoner could not be convicted of a common assault on this indictment, and therefore that the verdict amounted to an acquittal. The Court thereupon postponed judgment, and reserved the question of law for the consideration of the Justices of either Bench and Barons of the Exchequer, viz., Whether this conviction can be sustained?

No counsel appeared for the prisoner. Shepherd, for the prosecution.-In misdemeanors where a lesser misdemeanor is included in a greater, and the greater is charged in the indictment, that charge includes a charge of the lesser, and a verdict of guilty of the latter is a lawful verdict upon that indictment. It is as if there had been a count for the higher misdemeanor, and another count for the lesser. Then there cannot be a wounding or the infliction of grievous bodily harm without

an assault being also committed. There may be a distinction between those cases where the graver charge is a felony, but includes a misdemeanor, and the prisoner is convicted of the misdemeanor; and that distinction would perhaps stand on the ground that a count for felony and a count for a misdemeanor could not be joined in the same indictment; and this would seem to have been so before the 7 Will. 4. & 1 Vict. c. 85, when the legislature thought that the law on this subject ought to be altered, and by that act it was enacted, in section 11, that on the trial of any person for any felony whatever where the crime charged should include an assault against the person, it should be lawful for the jury to acquit of the felony, and to find a verdict of guilty of assault against the person indicted if the evidence should warrant such finding. This statute was in force until the general repealing statute of 24 & 25 Vict. c. 95; but the act for consolidating the law with reference to offences against the person omits to reenact the above section of the 7 Will. 4. & 1 Vict. c. 85. If either of the counts in the present indictment had contained the word "assault," it is submitted that The Queen v. Oliver (1) would be a direct authority in favour of this conviction. In that case the first count was for unlawfully and maliciously inflicting grievous bodily harm; and the second count was for assaulting and beating, wounding and illtreating one R. B. The jury returned a verdict of guilty of common assault, and the Court held that the conviction was good on the second count. In The Queen v. Yeadon (2), the first count charged the prisoner with assaulting and kicking and wounding; the second count with stabbing and wounding; and the third count, with assaulting and beating, wounding and ill treating, thereby occasioning actual bodily harm. The verdict was, guilty of common assault. The chairman refused to receive it on the ground that the jury had found the prisoners guilty of a charge not laid in the indictment. The jury then found the prisoner guilty of an assault occasioning

(1) Bell, C.C. 287; s. c. 30 Law J. Rep. (N.S.) M.C. 12.

(2) L. & C. 81; s. c. 31 Law J. Rep. (N.S.) M.C. 70.

actually hodily harm. But this Court But this Court awarded a venire de novo on the ground that the first verdict was perfectly legal and ought to have been received. There cannot be a battery and wounding without an assault-The Queen v. Ingram (3). Then if this verdict was legal, the chairman was bound to receive it-The Queen v. Yeadon (2).

KELLY, C.B.-This conviction must be affirmed. Both counts are for offences that necessarily include an assault, and are misdemeanors. It is not necessary that all the allegations of the circumstances of aggravation should be proved. We think that the case of The Queen v. Yeadon (4) is an authority to that extent. There there was a count for an aggravated assault and a verdict of guilty of a common assault was held a perfectly legal verdict. Martin, B., in the course of that case, said, "Here the chairman, in effect, told the jury that they had no power to find the men guilty of a common assault upon this indictment;" and Wightman, J. said, "It was substantially a misdirection. The chairman ought to have taken the verdict of guilty of a common assault, which was not tantamount to an acquittal." It is true that the word "assault" was to be found in those cases, but we think that circumstance does not make any difference.

The other JUDGES concurred.

Conviction affirmed.

Attorneys-Van Sandau & Co., agents for J. T. Belk, Middlesborough, for the prosecution.

[IN THE COURT OF QUEEN'S BENCH.] 1869. WALKER V. THE LORD MAYOR April 29. ANd aldermen of London.

Restitution of Stolen Property-Jurisdiction-Conviction-Felony or Misdemeanor -24 & 25 Vict. c. 96. s. 100.

Where a person guilty of a felony or misdemeanor in stealing, &c. any property, has been indicted by or on the behalf of the owner of the property, and convicted thereof, the Court, before whom such person shall be

(3) 1 Salk. 384; s. c. 1 Hawk. P.C. 110.

(4) L. & C. 81; s. c. 31 Law J. Rep. (N.s.) M.C. 70.

tried, has power to award a writ of restitution for the property, or to order the restitution thereof in a summary manner, but the Court of Queen's Bench has not, in itself, any such power or jurisdiction.

This was a rule calling upon the Lord Mayor and aldermen of the city of London to shew cause why a writ of restitution should not issue to restore to John Walker certain moneys, amounting to the sum of 2701., the proceeds of the sale of certain goods stolen from the said John Walker, between the night of Saturday the 2nd and Monday the 4th of February, 1865.

It appeared from the affidavits, that between the night of Saturday the 4th of February and the morning of Monday the 6th of the same month, 1865, the shop of John Walker was broken into. Property consisting of 383 watches and other things was taken away. Three persons, Thomas Brewerton, Thomas Caseley and William Henry Jeffery, were convicted of the burglary; 54 of the stolen watches were found at the lodgings of Caseley in a box, which also contained 2707. in gold and notes. John Walker applied for the money to the Recorder, but no order was made, and the same was handed over to the Lord Mayor, aldermen and commons of the city of London, who claimed the same under certain charters granting to them, as they alleged, the goods and chattels of all felons convicted in the city of London. An action was afterwards brought by John Walker against the makers of the safe in which his property had been locked up in his shop, and upon the trial of that action Thomas Caseley was called as a witness; he swore that the whole of the 270l. was the proceeds of the burglary. The money was claimed by other parties as being the proceeds of the sale of goods of which they had been robbed. An investigation was made, and ultimately the Lord Mayor and aldermen refused to deliver the 270l. to John Walker, but offered him a cheque for 50%., which he refused to accept.

Mellish and Archibald shewed cause against the rule.--This Court has no jurisdiction to award restitution to the applicant. Under the common law the party whose goods were stolen could not be restored to his goods upon the conviction of the felon upon an indictment, "because

it is the suit of the king, albeit the inquest found that the party had made fresh suit. But restitution was to be made upon an appeal of robbery, which was at the suit of the party"-see 3 Inst. 242. This state of things was altered by 21 Hen. 8. c. 11, which provided, that "if any felon do rob or take away any money, goods or chattels from any of the king's subjects, and thereof be indicted and found guilty," &c., "that then the party so robbed, or owner, shall be restored to his said money, goods or chattels; and that as well the Justices of gaol delivery as other Justices afore whom any such felon shall be found guilty," &c., "have power to award from time to time writs of restitution for the said money, goods and chattels in like manner as though any such felon or felons were attainted at the suit of the party in appeal." That statute has been repealed. A similar power is given by 7 & 8 Geo. 4. c. 29. s. 57; but the last statute upon the subject is the 24 & 25 Vict. c. 96. s. 100, which after providing that the property shall be restored to the owner or his representative, goes on to enact, that "the Court before whom any person shall be tried for any such felony or misdemeanor shall have power to award from time to time writs of restitution for the said property, or to order the restitution thereof in a summary manner." It is clear that this Court has no jurisdiction, and the rule ought to be discharged.

The Solicitor General (Sir J. D. Coleridge) and Crompton Hutton supported the rule. This Court has still jurisdiction to make the order, as it formerly had at common law. The powers given by the different statutes are cumulative, and were intended to assist the subject in getting possession of the property which had been stolen; not to put difficulties in his way. The 21 Hen. 8. c. 11. enacts, that he "shall be restored to his said money, goods and chattels." And then, in addition, the Justices are empowered to award writs of restitution; but there is nothing to take away the right which before existed. So in 24 & 25 Vict. c. 96. s. 100. the words are, "the property shall be restored to the owner or his representative," and then the additional power is given as before to the Justices before whom the conviction takes place. The meaning of these enactments is, that whereas, in former times, the

owner of the goods could only get restitution by bringing an appeal of robbery, power was thenceforth to be possessed by the Justices before whom the conviction took place; but in addition to that, that this Court should have power, without an appeal of robbery, to order that the property should be restored.

[MELLOR, J.-But what is there to give this Court a summary power to do that which the Justices, before whom the felon is convicted, are empowered to do?]

It is shewn by the statute. The appeal of robbery was a mere proceeding which it was thought right to abolish.

[LUSH, J.-But this Court had no independent power. The order of restitution was a proceeding in the appeal. If we were to order restitution of these goods, we should be taking out of the custody of the authorities, goods which are claimed by other persons as well as by the applicant, and without our having any means of determining whether they are his or not. Upon the trial of an indictment the property is identified in court.]

So it may be identified here on affidavits. If the contention on the other side is correct, there is no use in inserting the words "shall be restored," &c.

[LUSH, J.-Those words are inserted to shew that now the goods shall be restored in all cases, whether they have got into the hands of the Crown or not, and whether the owner has made fresh pursuit or not.]

It is submitted that this Court has power to make the order-see Golightly v. Ryn (1), Vin. Abr. tit. 'Appeal,' (H.) 540, and Hawk. P.C. 156, cap. 23, f. 5.

MELLOR, J.-We are all of opinion that this rule must be discharged, and we have come to that conclusion on these considerations, namely, that it seems that at the time of the passing of the 21 Hen. 8. c. 11.-[His Lordship read the words of the first part of the statute]the process which then existed was left untouched, and that a right was given to the owner to obtain by action the restitution of goods of which he had been plundered. It did not affect the exercise of the jurisdiction then possessed by the Court of Queen's Bench, but it went on to

(1) Lofft, 88.