such an act; but it could not have been contended here that a vessel brought within its terms was not also within its penalty. It is clear, therefore, that, primâ facie, an offence is stated. But an observation arises upon the enacting section in this case, which furnishes a strong argument against the prisoner, viz. that, in the body of it, several exceptions are in terms introduced, which it clearly would be necessary to negative. When we find these thus separated from those in the 4th section, it seems to follow that it was intended to leave the latter as matter of defence, and that the exclusion of them in the first instance is not necessary to constitute the offence. It

is to be remembered further that this offence is under the 50th section, and that speaks of a vessel "liable to forfeiture," not, generally, "under this act," but, "for any of the causes last aforesaid." Now these are the causes specifically mentioned in the earlier parts of the section, which are complete in themselves, and do not at all include or refer to the modifications or exceptions in the 4th section. No practical hardship is hereby cast upon the prisoner: he must have known better than any one the particular excusing circumstances, if any, under which his vessel, or he himself, was found within the prohibited distance; whereas, if the informant were bound to negative one, he must negative all the exceptions in the 4th section, and of course offer some evidence of the truth of the allegation. This would extend to many circumstances wholly irrelevant, of which too none would be likely to be within his cognizance. It appears to me that these circumstances, without having recourse to the 103rd section, are sufficient to dispose of this objection, and that this case is clearly distinguishable from those cited in the argument. The second objection, I think, received a satisfactory answer at the bar. The objection is founded on the notion that the Justices had all their power to hear the complaint under the 58th section; that this was a special power, and had not been regularly acted on. think that clause does not give the jurisdiction, but merely, and perhaps ex abundanti cautelá, gives a power of detainer for the particular purpose there mentioned, of obtaining the order of the Commissioners of Customs. The jurisdiction of the Justices NEW SERIES, XVI.-MAG. CAS.

I

is given to them as such, under the 50th section. Whether there has been an illegal detainer, or whether the Magistrates properly or improperly remanded the prisoner from the 31st of August, is immaterial to this conviction, and upon these questions I say nothing. The Justices still had their jurisdiction to hear and determine the offence when they did. I think, therefore, that the prisoner should be remanded.

ERLE, J. (8)—I fully concur with my Brother Coleridge, and would only add, that, where one section of an act of parliament creates an offence, and another section gives certain exceptions, it seems to me very important that we should set it down as a rule that the exceptions need not be negatived by the party prosecuting.

An indictment which alleged that A. R. H, intending to defraud J. W, falsely pretended that he was a captain in the 5th Dragoons, by means of which false pretence he obtained from J. W. a valuable security, &c., whereas the said A. R. H. was not, at the time of the making such false pretence, a captain in the 5th Dragoons :-Held, good on writ of error.

The prisoner was convicted at the Central Criminal Court on the second count of the indictment, which stated, that the said A. R. Hamilton, being an evil disposed person, and contriving and intending to cheat and defraud James Wood, to wit, on, &c., unlawfully, knowingly, and designedly, did falsely pretend to the said J. Wood that he, the said A. R. Hamilton, then was a captain in Her Majesty's 5th regiment of Dragoon Guards, by means of which said lastmentioned false pretence the said A. R. Hamilton did then and there, unlawfully, knowingly, and designedly, obtain of and from the said J. Wood a certain valuable security, to wit, an order for the payment (8) Wightman, J. was absent.

This case was decided in Trinity term, 1846.

с

of the sum of 500l. of lawful money of Great Britain, and of the value of 500l., the property of the said J. Wood, with intent then and there to defraud him, the said J. Wood, of the same: whereas, in truth and in fact, the said A. R. Hamilton was not, at the time of the making such lastmentioned false pretence as aforesaid, a captain in her said Majesty's 5th regiment, and the said A. R. Hamilton, at the time of making such last-mentioned false pretence as aforesaid, well knew that he was not a captain in her said Majesty's said regiment, to the great damage and deception of the said J. Wood, to the evil example, &c., and against the peace, &c., and against the form of the statute, &c. A writ of error was brought, and the errors assigned were, that it did not appear that the false pretence was made with the intention of obtaining the valuable security in the second count mentioned; that the means by which it was obtained were not sufficiently and legally set out and specified; that the pretence was not sufficient in law to support the charge, and was not shewn to be false by legal and sufficient allegation; and that it was not shewn that any money was due or secured or remaining unsatisfied on the security alleged to have been obtained.

Ballantine, for the plaintiffin error.-First, there is nothing to shew any intent to get by the pretence the security which was really obtained. It might be, that a person intending to get one thing, in reality got another, by the pretence made by himThe Queen v. Young (1), The King v. Wakeling (2). The statute 7 & 8 Geo. 4. c. 29. s. 53, on which the indictment is framed, is in pari materiá with the statute 30 Geo. 2. c. 24. s. 1. Secondly, the pretence must be relevant to the thing intended to be procured by the pretence, and its relevancy must appear on the face of the indictment. A bare lie is not a false pretence; and there is no introductory averment to explain why a person pretending to be a captain in the Dragoon Guards should by that means get money or a valuable security. The Court will not take judicial

(1) 3 Term Rep. 98. (2) Russ. & Ry. 504.

notice of the military rank of a captain; and it is just as if the indictment had alleged that the prisoner had pretended that his name was John Styles, without explaining why the fact of his name being John Styles should at all induce the prosecutor to advance money, &c.

Indictments under this statute should be construed with the same strictness as indictments for perjury-The King v. Perrott (3), The King v. Airey (4), The King v. Witchell (5.)

[PATTESON, J.-The jury might find that the situation of captain of dragoons was one the holding of which induced the prosecutor to part with his money. Suppose the indictment had alleged that the prisoner, "contriving, &c., by means of the false pretence hereinafter alleged," that would not have carried the matter any further.]

In The Queen v. Tully (6) a pretence by the prisoner that he had been sent by A. B. to the shop of C. for a pair of shoes, by which pretence (being false) he obtained the shoes for A. B, was held not to be within the statute. In The King v. Reed (7), a false statement as to the weight of coals, though it was alleged that the prisoner, by the false pretence defrauded the prosecutor, was held insufficient; and this is consistent with The Queen v. Wickham (8). The materiality of the pretence must be shewn. A person might pretend that he was an F.R.S. with a view of getting up a railway company, and he might be afterwards trusted with goods by a tradesman on the faith of his being an F.R.S. The word "then" is also ambiguous-Stead v. Poyer (9).

C. Clark, contrà.

[LORD DENMAN, C.J.-What do you say as to the error assigned in respect of money not being alleged to be due on the security?]

No such allegation is ever introduced in indictments on this statute-The King v. Crossly (10). (He was then stopped.)

(3) 2 Mau. & Selw. 379. (4)

East, 30. (5) 2 Ibid. P.C. 830.

(6) 9 Car. & Pay. 227.

(7) 7 lbid. 848.

(8) 10 Ad. & El. 34; s. c. 8 Law J. Rep. (N.S.) M.C. 87.

(9) 14 Law J. Rep. (N.s.) C.P. 251. (10) 2 Man. & Ryl. 280, n.

LORD DENMAN, C.J.-I think that none of the objections are sustainable; and, indeed, it is very difficult, on reading the indictment, to see how any doubt can arise. Then we must look at the errors assigned: the first is, that it does not appear that the pretence was made with the intention of obtaining the security, &c.; but if it was proved as matter of fact, that the false pretence was made with a view of getting that or any particular thing, I do not see any objection to the mode of stating it and even suppose the prisoner had gone to a shop with a view of getting one thing, and, in the course of the transaction, got another, I am not sure that this form of allegation would not be sufficient. Then, secondly, as to the means which it is said are not sufficiently or (what is the same thing) legally set out. Many modes by which the representation might have induced the prosecutor to part with the security might be imagined; the prisoner might know that the prosecutor knew a captain in the 5th Dragoons of the name of Hamilton, or he might have to pay a person of that name a sum of money; and the only necessary circumstance might be that he should be a captain in the 5th Dragoons. Then, it is said, that the pretence is not shewn to be false by legal and sufficient allegation. Why not? It is said in plain terms that it was false, and the indictment, in using the term

valuable security" follows the words of the statute.

PATTESON, J.-I am of the same opinion. The 7 Geo. 4. c. 64. s. 21, which provides, that, for an offence created by statute, an indictment shall, after verdict, be held sufficient, if it follows the words of the statute, may, perhaps, apply as well to the first objection as to the last. It clearly applies to the objection as to the sufficiency of the words "valuable security." But I cannot see any ground of error whatever. We cannot take it that there was any other pretence besides that which is alleged; and that pretence cannot be said to be one which, in point of law, would not have induced the prosecutor to part with his money, though it may not have been likely to have done so. At all events, I do not see what more could have been alleged. It would have been ridiculous to aver that a captain in the Dragoons was a person likely to get credit,

&c.

The common form is to say that the party did make use of the pretence, &c., with intent to defraud. Here, it is further said, that the prisoner, contriving, &c., did, by means of the pretence, defraud, &c. As to the word "then," we cannot read the indictment without referring to the time when the representation was made. Of course, the word "then" would not be used by him; he would say, "I am," or "I am now;" and the negative averment exactly hits the allegation.

WILLIAMS, J.-It appears to be admitted that the false pretence, as it stands, might be free from objection; if so, the greater part of the argument on behalf of the prisoner is disposed of, and no case has been quoted at all supporting the objection now attempted to be raised, as to the want of prefatory averments. On the contrary, in the case of The Queen v. Young, which he first cited, there were many very ingenious objections taken, but this was not one of them. The allegation is, that the prisoner did get the valuable security by a false pretence, having an intention to defraud: that satisfies the words of the statute. The objection as to the time is not even pointed out as a ground of error.

Order of Removal―Jurisdiction of Justices-Statement of Inhabitancy.

An order of removal recited a complaint "made unto us, two of her Majesty's Justices acting in and for the county of, &c., that the pauper "intruded and came into the parish of M, and hath actually become chargeable to, and is now inhabiting in the same parish." After adjudicating the settlement, the order directed the removal of the pauper "on sight hereof:"-Held, that it sufficiently appeared that the complaint was made to the Justices, and the order made by them within their jurisdiction.

That the order was not bad for not directing the removal "on sight hereof."

And lastly, that the statement of the inhabitancy of the pauper was sufficient to jus

tify the order of removal, under the statute 35 Geo. 3. c. 101.

On appeal against an order of two Justices for the removal of Ann Sheridan from the parish of St. Mary-le-bone to the parish of St. Paul, Covent Garden, both in the county of Middlesex, the Sessions confirmed the order, subject to the opinion of the Court on a CASE, the material parts of which were as follows:The order of removal appealed against was, as follows:-"To the churchwardens and overseers of the poor of the parish of St. Mary-le-bone, in the county of Middlesex, and to the churchwardens and overseers of the poor of the parish of St. Paul, Covent Garden, in the liberty of Westminster, in the county of Middlesex, and to each and every of them.-Middlesex, to wit.—Whereas complaint hath been made unto us, two of her Majesty's Justices of the Peace acting in and for the county of Middlesex, by the churchwardens and overseers of the poor of the said parish of St. Mary-le-bone, that Ann Sheridan, single woman, aged sixtyfour, intruded and came unto the said parish of St. Mary-le-bone, and hath actually become chargeable to, and is now inhabiting in the same parish; upon examination of the premises upon oath and other circumstances, we do adjudge the same to be true, and do also adjudge the place of the last legal settlement of the said Ann Sheridan to be in the said parish of St. Paul, Covent Garden, in the liberty of Westminster, in the said county of Middlesex. These are therefore in her Majesty's name to require you, the said churchwardens and overseers of the poor of the said parish of St. Mary-le-bone, on sight hereof to remove and convey the said Ann Sheridan from out of your parish of St. Mary-le-bone to the said parish of St. Paul, Covent Garden, and her deliver unto the church wardens and overseers of the poor there, or to some or one of them, together with this our order, or a true copy thereof, who are hereby required to receive and provide for her according to law. Given under our hands and seals, this 26th day of November 1844. E. Elliott (L.s.), James John Hamilton (L.S.)"

Among other grounds of appeal was the following:-That the said order of removal is bad, defective, and insufficient on the face thereof.

The objections stated, at the trial of the appeal, as to the order were, that the jurisdiction of the Justices was not sufficiently shewn, and that the order was illegal in requiring the churchwardens and overseers of St. Mary-le-bone to remove on sight thereof. The objections were overruled, and the Sessions confirmed the order. If this Court should think the order bad on the face thereof, the order of Sessions was to be quashed, otherwise to stand affirmed.

[The case also stated various objections which were raised to the examinations, and overruled by the Sessions: but these objections were abandoned on the argument of the case.]

Carrington, in support of the order of Sessions. It is objected, first, that it does not appear that the Justices were Justices of the county, because they are stated to be "acting in and for the county." But the word "acting" does not refer to the word "for" at all. They are Justices for the county, and acting in it. Secondly, it is said, that it does not appear that the order was made within the jurisdiction of the Justices. But the order states the complaint to have been made to them in their jurisdiction, and it is not to be assumed that the Justices after hearing the complaint. went out of their jurisdiction before making the order-The Queen v. the Recorder of King's Lynn (1). Thirdly, as to the objection that the order is to remove 66 on sight hereof." It is contended, that as the respondent parish was bound to wait twenty-one days before removing the pauper, that qualification should have been introduced into the order. But this was unnecessary, and would have made the order bad-The Queen v. Blathawayt (2). The general order was held sufficient in The Queen v. Rotherham (3), and the words

on sight hereof" may be rejected as surplusage. Lastly, it is objected that it does not appear that the pauper had come to settle in the respondent parish. It states that she had intruded "and is now inhabiting." In The Queen v. the Recorder of King's Lynn the order was held sufficient, though it stated only that the paupers

(1) 15 Law J. Rep. (N.s.) M.C. 93. (2) Ibid. 48.

(3) 3 Q.B. Rep. 776; s. c. 12 Law J. Rep. (N.s.) M.C. 17.

"now inhabit," without the allegation that they had intruded. In The Queen v. Willatts (4) there was merely a statement that the paupers had intruded and become chargeable, without any statement that they were inhabiting.

Pashley, contrà.-First, a statement that Justices are acting in and for a county, states evidence only, and does not shew their jurisdiction. In The Queen v. Blathwayt an order similar to the present was admitted to be defective. Secondly, it ought distinctly to appear that the order was made within the local limits of the jurisdiction of the Justices. The Queen v. Stockton-upon-Tees (5) is the converse of the present case; there, the statement of the complaint was held to be insufficient, because it did not appear to be made to Justices in their jurisdiction, although the order made upon the complaint was properly made within their jurisdiction.

[COLERIDGE, J.-That order did not contain the word "in."]

Thirdly, the words "at sight hereof" vitiate the order. Lastly, the principal objection to it is, that it does not shew a coming to inhabit. The term "inhabitant" by itself has no definite meaning-The King v. Mashiter (6).

[ERLE, J.-That is to say, it has several definite meanings.]

The question is, whether the Court is bound to construe it in such a sense as to confer jurisdiction? This order certainly shews that the pauper intruded; but that is not sufficient The Queen v. Willatts. The mere statement of inhabiting does not carry the matter any further, and nothing can be taken by intendment in such a case- -The Queen v. the Justices of the West Riding, (Drighlington v. Pudsey) (7), The King v. Ditcheat (8), The King v. Hulcott (9), Christie v. Unwin (10), Day v. Ring (11), Brancker (4) 14 Law J. Rep. (N.s.) M.C. 157. (5) Ibid. 128.

(6) Ad. & El. 153; s. c. 6 Law J. Rep. (N.S.)

K.B. 121.

(7) 2 Q.B. Rep. 505; s. c. 11 Law J. Rep. (N.S.) M.C. 80.

(8) 9 B. & C. 176; s. c. 7 Law J. Rep. M.C. 110. (9) 6 Term Rep. 583.

(10) 11 Ad. & El. 373; s. c. 9 Law J. Rep. (N.s.) Q.B. 47.

(11) 5 Ibid. 359; s. c. 5 Law J. Rep. (N.s.) M.C. 130.

v. Molyneux (12), The Queen v. David Smith (13).

[COLERIDGE, J.-There was a similar form of order in The Queen v. the Recorder of King's Lynn.]

There is nothing to shew that the pauper came into the removing parish animo morandi-The King v. St. James, in Bury St. Edmund's (14), The King v. St. Lawrence, Ludlow (15), The King v. Woolpit (16). The intention is the gist of the act Robertson v. Liddell (17).

[ERLE, J.-You are arguing on the effect of stat. 13 & 14 Car. 2. c. 12; but that statute is qualified by stat. 35 Geo. 3. c. 101.]

That statute only regulated and restricted the power of removal given by the former statute; but conferred no new power-The King v. Alveley (18), The King v. St. Lawrence, Ludlow. In The Queen v. Rotherham, the order shewed a coming to inhabit. Either the coming to inhabit or the coming with an endeavour to settle should be distinctly shewn in order to give jurisdiction.

LORD DENMAN, C.J.-The first three objections are too trivial to require any comment. As to the other,

Cur. adv. vult. The judgment of the Court was now delivered by

LORD DENMAN, C.J.-In this case we took time to consider a single point; namely, whether the order of removal in stating the complaint before the Justices, alleged all the circumstances necessary to give them jurisdiction. The words on which the question arises are these: "that Ann Sheridan, single woman, aged sixty-four, intruded and came into the said parish of St. Marylebone, and hath actually become chargeable to, and is now inhabiting in the same parish." It is objected that the words contain no statement of the pauper having come into the parish with the intention of there settling or inhabiting; and it is contended that the

(12) 1 Man. & Gr. 710; s. c. 10 Law J. Rep. (N.S.) C.P. 310.

(13) 15 Law J. Rep. (N.s.) M.C. 41.
(14) 10 East, 25.

(15) 4 B. & Ald. 660.

(16) 4 Ad. & El. 205; s. c. 5 Law J. Rep. (N.S.) M.C. 14.

(17) 9 East, 487.

(18) 3 Ibid. 563.