1841. WORCESTER ASSIZES. (Crown Side.) BEFORE MR. JUSTICE COLERIDGE. REGINA V. ANDREWS. HOUSEBREAKING.-The indictment, after charging An indictment the breaking and entering the house in the usual form, charged that the prisoner "forty-two pieces of the current gold coin of the realm, called sovereigns, of the value of £42, in the same dwelling-house then and there being found, then and there feloniously did steal, take, and carry away," &c. for housebreak ing, after charging the break ing and entering in the usual form, charged that the prisoner "fortytwo two pieces of the current gold coin of this realm, called sovereigns, of the value of same dwellinghouse then and there being found, then and there feloni ously did steal and carry away," &c. :Held, good, and "then and that the words there" in the Greaves, for the prisoner.-I submit that the indictment is bad, as it does not sufficiently aver the stealing to have, in been in the dwelling-house. The words "then and there" merely amount to the same as the words "to wit, on the day and year aforesaid, in the parish aforesaid, in the county aforesaid ;" and the present indictment ought to have run "then and there, in the same dwelling-house, feloniously did steal, take, and carry away," &c. In the case of Regina v. Smith (a), which was tried at Liverpool before Mr. Justice Patteson, the indictment charged that the prisoner broke into a shop, and two saws, "of the goods and chattels of the said J. S., in the shop then and there being found, feloniously did steal, take, and carry away," &c. It was objected by Dr. Brown for the prisoner, that the prisoner could only be convicted of simple larceny, as the indictment did not distinctly aver the goods (a) 2 M. & Rob. 115. last allegation, were sufficient without the words " in the same dwelling house" being added to them. 1841. REGINA บ. ANDREWS. to have been stolen in the shop. Mr. Justice Patteson allowed the objection. The words of the 15th section of the stat. 7 & 8 Geo. 4, c. 29, as to breaking into shops, being precisely the same as those of the 12th section relative to house-breaking. COLERIDGE, J.-I had occasion to mention that case to my Brother Patteson, and he seemed to think the decision was incorrect. I think the present indictment is sufficient (b). The prisoner was acquitted on the merits. F. V. Lee, for the prosecution. Greaves, for the prisoner. [Attornies-Cooke, and Fryzer.] (b) See the case of Reg. v. Page, 9 C. & P. 756. 1841. STAFFORD ASSIZES. (Civil Side.) BEFORE MR. JUSTICE COLERIDGE. DOE on the Demise of MARY SALT, the Administratrix of THOMAS SALT, v. CARR. EJECTMENT to recover a cottage and garden, situate A person de at the parish of Dilborne. It appeared that John Salt, being seised in fee of the cottage and garden, died, leaving a widow and ten children him surviving, and by his will, duly executed, devised the cottage and garden to his wife Ann Salt for life, and at her death equally among his children; but by his will he gave his widow power to sell or mortgage the property, which power was in the following terms:-"And if the fund arising from my real and personal estate is not sufficient for the maintenance of my loving wife, then I give her liberty to sell or mortgage all or any part of my real or personal estate of what nature or kind soever." It further appeared, that John Salt died in the year 1820, and that in the year 1828 his widow executed a vised real pro perty to his widow for life. death to his children equally, with a power to the widow and after her to mortgage or sell, in case "the fund" arising from the real and per sonal estate of the testator was not sufficient for the main tenance of the widow. The widow executed a mort gage of the £30 to her property for son T., and it was proved that four years before the mortgage T. advanced his mother a sum less than £1 to pay a poor's rate that she was unable to pay. The subscribing witness to the mortgage deed had acted as attorney both of the widow and T. respecting it:-Held, that, on the trial of an ejectment by the administratrix of T. to recover the property under the mortgage deed, the subscribing witness might be cross-examined to show that the sum of £30, mentioned in the mortgage deed, and in the receipt at the back of it, was never in fact advanced. Held, also, that it was for the jury to say, whether the widow was in such circumstances as to come within the terms of the power, and had had the money really advanced to her, or whether the mortgage was a device to get an advantage to one of the sons, the widow not being in circumstances to require the advance, and in fact never having received the money; and that in the former case the power would be well executed, and in the latter not. 1841. DOE d. SALT บ. CARR. mortgage for 1000 years for £30 to her son Thomas Salt; and in the mortgage deed it was recited, that the mortgage was given in consideration of £30, and there was a receipt for the sum of £30 indorsed on the deed. It further appeared, that both the widow of John Salt and her son Thomas Salt were dead, and the present ejectment was brought by the lessor of the plaintiff, as the administratrix of Thomas Salt, to recover possession of the property under the mortgage deed. It was proved, on the part of the lessor of the plaintiff, that, in the year 1824, Ann Salt, the widow, was in indigent circumstances, and had asked pecuniary assistance from her son Thomas the mortgagee, she being unable to pay her poor's rate, and that her son Thomas after at first declining to assist her, unless she would give him a security on the land, advanced her a sum less than twenty shillings. To prove the execution of the mortgage deed by Ann Salt, Mr. Blagg, the attesting witness, was called. He stated that he had acted as the solicitor of both Thomas Salt and his mother, in the matters relating to this mortgage. It was proposed by Corbett, for the defendant, to shew, by the cross-examination of Mr. Blagg, that no money was in fact advanced at the time of the execution of the mortgage deed. Whateley, for the lessor of the plaintiff.—I submit that Mr. Blagg cannot be examined as to this: first, on the ground that Mr. Blagg having acted as the attorney of Thomas Salt, he cannot be allowed to give evidence of what passed between himself and his client, to destroy the validity of the mortgage that he had prepared for his client; and, secondly, on the ground that parol evidence cannot be received to contradict the recitals in the mortgage deed, and the receipt on the back of it, as to the advance of £30 by Thomas Salt. Corbett, for the defendant.-I submit, that as Mr. Blagg was the attesting witness, he is the proper person to be asked as to what passed at the execution of the deed. I submit also, that the defendant is entitled to the benefit of this evidence, as this is not an examination as to any confidential communication between Mr. Blagg and his client, but an examination to ascertain the circumstances attending the execution of a deed. With respect to the second point, I submit, that as the defendant is no party to the deed, and claims adversely to it, he is not concluded by any recital contained in it, and that he is at liberty to shew by the parol evidence of the subscribing witness, that the consideration is not correctly stated in the deed, and also to shew in like manner what the consideration really was. COLERIDGE, J.-I think that Mr. Corbett is entitled to go into the examination he has proposed, and that the objection cannot be supported on either of the grounds put by the learned counsel for the lessor of the plaintiff (a). The questions were put, and Mr. Blagg stated that no money was advanced by Thomas Salt at the time the mortgage deed was executed; and that he had pointed out to Mrs. Salt the advantage she was giving to her son Tho (a) In the case of Call, Bart., v. Dunning, 4 Ea. 53, the plaintiff proposed to prove the execution of a bond, by putting in the defendant's answer to a bill of discovery, on which the defendant admitted the execution of the bond; but it was held that the proof was not sufficient without calling the subscribing witness; and Mr. Justice Le Blanc said, "A fact may be known to the subscribing witness not within the knowledge or recollection of VOL. I. K the obligor, and he is entitled to N. P. 1841. DOE d. SALT υ. CARR. |