Counts upon 2 of the 39 & ment. Though the having in possession new stores, or stores not more sections i and than one-third worn, is subject to transportation for fourteen years, by the 39 & 40 Geo. 3, c. 89, s. 1, and the having in possession stores not new, or more than one-third worn, is, by the second section of that statute, subjected to a different punishment, yet counts for both these offences may be included in the same indictment. (u) It is said to have been agreed that, although an indictment state that the prisoner, "then or at any time before not being a contractor with or authorized by the principal officers or commissioners of our said lord the king, of the navy, ordnance, &c., for the use of our said lord the king, to make any stores of war, &c. ;" yet, that it is not incumbent on the prosecutors to prove this negative averment, but that the defendant must shew, if the truth be so, that he is within the exception in the statute. (v) Proof of negative averment of the prisoner not being a contractor, &c. As to the informer being a witness. As to the person considered as an informer. Corporal punishment may be inflicted under the 9 & 10 Wm. 3, c. 41, s. 2, 9 Geo. 1, c. 3, s. 4, and 17 Geo. 2, c. 40, s. 10. It appears to have been holden in one case, that the informer was an interested witness, as being entitled to a moiety of the fine of 200%., on a prosecution on the 17 Geo. 2, c. 40, s. 10, and 9 & 10 Wm. 3, c. 41, though it was urged that it was in the discretion of the Judge to inflict a corporal punishment in lieu of the fine, and the witness was rejected. (w) But, in a subsequent case, Lord Kenyon, C. J., said, that he had considered the objection to the competency of the informer's being a witness on the ground of interest; and that, as the statute had given the Court a power, at their discretion, either to inflict a corporal pnnishment, or to impose a fine in case of conviction, and as it was only in case a fine was imposed that the witness could expect to derive any benefit (an uncertainty depending upon the judgment of the court) he was then of opinion that the objection went to the credit, not to the competency, of the witness, and that, therefore, his evidence was admissible. (x) It appears to have been holden that, where a peace-officer, in searching for other goods, discovered naval stores, and in consequence of such discovery by him an information was filed against the offender, such peace-officer was to be deemed the informer. (y) But where a witness stated, that though no information respecting the stores in question had been given to the Admiralty until the time of the seizure, yet that he made the seizure in consequence of information given to him, by another person, of the stores being in the defendant's possession, it was ruled that the witness was not to be considered as the informer, and that the informer was the person upon whose information the seizure had been made, not he who had made the seizure in consequence of such information. (≈) With respect to the power of the court to inflict corporal punishment, under the authority of the statutes 9 & 10 Wm. 3, c. 41, s. 2, 9 Geo. 1, c. 8, s. 4, and 17 Geo. 2, c. 40, s. 10, it was contended, in a case where the defendant had been convicted on an indictment charging him in one count with concealing naval stores, and in another with having them in his custody, that no such power existed under either of those statutes, where the defendant was (u) By Lord Ellenborough, C. J., in Rex v. Johnson, 3 M. & S. 550. (v) Willis's case, 1791, 1 Hawk. P. C. c. 89, s. 17. (w) Rex v. Blackman, cor. Kenyon, C. J., 1791, 1 Esp. R. 93. (r) Rex v. Cole, cor. Lord Kenyon, C. J., 1794. 1 Esp. ¡69. (y) Rex n. Blackman. 1 Esp. 5. (2) Rex v. Banks, 1 Esp. R. 145. And costs may be awarded under 9 & 10 ready and offered to pay the penalty of 200%, but the Court of But the statute 39 & 40 Geo. 3, c. 89, took away the power of the court to sentence to hard labour. A defendant was brought up for judgment, after conviction, on the stat. 9 & 10 Wm. 3, c. 41, s. 2, for unlawfully having in his possession the king's naval stores, marked with the king's mark, and judgment was about to be pronounced that he should be imprisoned in the house of correction for the county of Surry, and there kept to hard labour for three calendar months, and be once during that time publicly whipped. This would have been warranted by the statute 17 Geo. 2, c. 40, s. 10, reciting the statutes 9 & 10 Wm. 3, c. 41, and 9 Geo. 1, c. 8; but a doubt occurring how far the power of sentencing to hard labour was taken away by the subsequent statute of the 39 & 40 Geo. 3, c. 89, s. 2, the court, upon further consideration, and comparing the different provisions of these statutes, were of opinion that the power of sentencing to hard labour was taken away by the latter statute, and therefore pronounced judgment that the defendant should be imprisoned in the house of correction for the county of Surry, for three calendar months, and be once during that time publicly whipped. (c) (a) Rex v. Bland, 5 T. R. 370. 2 Leach, 595. 2 East, P. C. c. 16, s. 148, p. 760. And the later statute, 39 & 40 Geo. 3, c. 89, s. 1, expressly enacts as to corporal punishment. Ante, p. 260. (b) Chapple's case, 5 T. R. 371, note (a). 53. (c) Rex v. Bridges, K. B., 1806, 8 East. Wm. 3, c. 41, But the 39 & 40 Geo. 3, c. 89, took away the power of the tence to hard labour. court to sen CHAPTER THE THIRTIETH. 1 & 2 Geo. 4, e 75, s. 1. Pilots, &c., taking up anchors, cables, &c., or goods, &c., cut from or left by ships, are to make a report to the deputy vice-admiral, and to deliver the articles, &c. And pilots, &c. fraudulently retain ing, &c., any marks, and not OF UNLAWFULLY RECEIVING TACKLE OR GOODS CUT FROM OR LEFT BY SHIPS; AND OF RECEIVING GOODS STOLEN ON THE RIVER THAMES. THE 1 & 2 Geo. 4, c. 75, s. 1, enacts, "that all pilots, boatmen, hovellers, or other persons who shall take up any anchors, cables, tackle, apparel, furniture, stores, or materials, or any goods or merchandise which may have been parted with, cut from or left by any ship or vessel within any harbours, rivers, or bays, or on any of the coasts of this kingdom, whether the same ship or vessel shall be or shall have been in distress or otherwise, and which shall have been weighed, swept for or taken possession of by any such boatman, pilot, hoveller, or other person," shall send a report in writing of the articles so found, and stating the marks, if any, thereon, and also an accurate and particular description of the bearings, distances, and situations, and the time when and where the same were so found, to a deputy vice-admiral or his agent, at or near to the port or place where such boatmen, &c. shall first arrive with such articles, within forty-eight hours after their arrival at such port, &c. or before they shall leave the port, if they shall quit it before that time shall expire; and shall also, within the same period, deliver such articles so found into a proper warehouse, or such other place as the vice-admiral of each county shall appoint for safe custody, until the same shall be claimed by the owner thereof, or his agent, and the salvage, together with such other charges and expenses as are thereinafter directed to be paid in respect of such articles, paid by him or them, or security given for the payment thereof, to the satisfaction of the salvor, and that "every such pilot, boatman, hoveller, or other person, who shall wilfully and fraudulently keep possession of, or retain or conceal, or secrete any anchors or cables, tackle, apparel, furniture, stores, or materials, or any goods or merchandise, or deface, take out, or obliterate the marks and numbers thereon, or alter the same in any manner, with intent thereby directly or indirectly to prevent the discovery and identification of such articles so found, weighed, swept for, or taken possession of as aforesaid, and shall not report and deliver the same at some proper warehouse or other place in manner aforesaid, and within the time herein-before limited, shall forfeit all claim to salvage, and shall, on conviction, be adjudged and deemed guilty of receiving goods knowing them to have been stolen, and shall suffer the like punishment as if the same had been stolen on shore." (b) if The twelfth section enacts, "that if any person shall knowingly Sec. 12. Perand wilfully, and with intent to defraud and injure the true owner sons knowor owners thereof, or any person interested therein as aforesaid, pur- purchasing or ingly, &c., chase or receive any anchors, cables, or goods or merchandise, which receiving any may have been taken up, weighed, swept for, or taken possession of, anchors, cables whether the same shall have belonged to any ship or vessel in distress &c., or goods taken up, &c., or otherwise, or whether the same shall have been preserved from the directions any wreck, if the directions hereinbefore contained with regard to have not been such articles shall not have been previously complied with, such complied with, person or persons shall, on conviction thereof, be deemed guilty of deemed guilty receiving stolen goods, knowing the same to have been stolen, as if of receiving the same had been stolen on shore, and suffer the like punishment goods, knowas for a misdemeanor at the common law, or be liable to be transported for seven years, at the discretion of the court before which he she or they shall be tried." are to be ing, &c. Sec. 13 re- anchors, communicat The statute then requires, that in case any master, &c. of any ship bound to parts beyond the seas, shall find and take on board any anchor, &c. or any goods, &c. or shall receive such articles on board going out from any other person who may have found the same, knowing the to sea, finding same to have been so found, the master, or other person having the or receiving command of the ship, shall make a true entry in the log-book of the cables, &c., to description of the articles, stating the marks, and the bearings, time, take certain &c. when taken on board, and shall transmit a report on the first steps for opportunity to the Trinity House, and on the return of the ship ing, &c. shall deliver up the articles into the possession of a deputy viceadmiral, or his agent, within twenty-four hours, with a similar report; and for default imposes a pecuniary penalty not exceeding 100%. (c) The fifteenth section, reciting that "pilots, hovellers, boatmen, and Sec. 15 makes the conveying other persons in small vessels, have for many years conveyed anchors anchors and and cables which may have been weighed, swept for, or taken posses- cables obsion of by them as aforesaid, or which they may have purchased of tained by other persons, knowing them to have been weighed, swept for, or sweeping for, taken possession of, without being reported as aforesaid, to foreign &c., to any countries, and there sold and disposed of, to the manifest injury and foreign port, loss of the owners thereof," enacts, "that every pilot, hoveller, boat- there selling, inan, or the master of any such vessel, who shall convey any such &c., felony. anchor or cable to any foreign port, harbour, creek, or bay, and there sell and dispose of the same, shall be deemed and adjudged guilty of felony, and shall be transported for any term not exceeding seven weighing, &c., and owners, &c. This act requires dealers in marine stores to have their names, Depredations with the words, "dealer in marine stores," painted upon the front of upon shipthe places where their goods are deposited; (d) and contains many other regulations for preventing depredations on ship-owners, &c. and for the adjustment of salvage, some of which are enforced by pecuniary penalties, recoverable by proceedings of a summary nature. By section 22, all felonies, misdemeanors, and other offences Sec. 22. Trial under the act shall be laid to be committed, and shall be tried in of offences (b) The act contains no provisions as to the punishment of principals in the second degree and accessories, they are therefore punishable under the 7 & 8 Geo. 4, c. 28, s. 8 & 9, and 1 Vict. c. 90, s. 5. See my (c) Sec. 13. where articles found; or where offenders reside, if articles found in foreign parts. It appears any city or county, (being a county,) where any article, &c. in relation to which the offence shall have been committed, shall have been found in the possession of the person committing the offence; or if the same shall have been sold in foreign parts, then in the county or place in which the person selling the same shall reside. (e) The 2 Geo. 3, c. 28, contained various provisions relative to persons unlawfully receiving or having in possession ropes, materials, &c., of any vessel on the river Thames, and provided that if any person should buy or receive any part of the cargo, &c., of a vessel in the said river, knowing the same to have been stolen, he should be transported for fourteen years. This statute, is however, wholly repealed by the 2 & 3 Vict. c. 47 s. 24. The 39 & 40 Geo. 3, c. 87, made further provisions for the more effectual prevention of depredations on this river and its vicinity, and recited that the said offences not being declared by the 2 Geo. 3, c. 28, to be felony, the trial might be traversed, and provided that the parties indicted under the 2 Geo. 3, should not traverse. From this section of the statute, it appears to have been the opinion of the Legislature, that the offence of receiving, under the But former act, 2 Geo. 3, c. 28, s. 12, was only a misdemeanor. a different construction was put upon the former statute, by the Court of King's Bench, in a case where a motion was made to bail a defendant, committed for receiving part of a cargo, belonging to a vessel in the Thames, knowing it to have been stolen. The motion was opposed on the ground that the offence was a felony. And it was argued that by the 3 & 4 W. & M. c. 9, s. 4, (now repealed) receivers of stolen goods might be prosecuted as felons; and by 1 Anne, st. 2, c. 9, s. 2, (also now repealed) might be punished as for a misdemeanor, where the principal felon was not convicted; that the statute under which the prisoner stood committed, must be considered as in pari materiá; and that although the twelfth section of it did not, in express words, declare that such offenders should be felons, yet it was evident they were intended by the Legislature to be so considered; for by the fourteenth section it was enacted, that any person stealing, or unlawfully receiving stolen goods, knowing the same to be stolen, should, on discovering two other offenders, be entitled to a pardon for all such felonies; and the court was of opinion that it was a felony. (f) And upon this point it is observed, that the statute seems only to have made the receiving of the goods under such circumstances evidence of their having been received by the party, knowing them to have been stolen. (g) But the words of the statute appear to be very general in their expression, if in fact they were intended only to apply to the evidence of a receiving. (e) By sec. 23, the act is not to extend within the limits of the Cinque Ports, specified in the 48 Geo. 3, c. 130; nor to the 48 Geo. 3, c. 104, which is an act for the regulation of pilots. Sec. 24 contains a proviso for the jurisdiction, &c., of the High Court of Admiralty, &c.; sec. 25, a proviso for the right of the crown, and of the lords of manors; sec. 34, for the right of the Trinity-houses of Kingstonupon-Hull, Newcastle-upon-Tyne, and Scarborough; and, sec. 35, for the rights of the city of London. By sec. 36, the act is not to extend to Scotland or Ireland. As to offences within the jurisdiction of the Cinque Ports, see now 1 & 2 Geo. 4, c. 76. (f) Rex v. Wyer, 1 Leach, 480, decided in 28 Geo. 3. 2 T. R. 77. 2 East, P. C. c. 16, s. 145, p. 753. (g) 2 East, P. C. c. 16, s. 145, p. 753. |