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1826.

REX

v.

STIMPSON.

a part of the peas being found in the house of the prisoner, shortly after they were lost.

For the defence, the prisoner's daughter proved, that the prisoner had purchased the peas from a person named Taylor, for three shillings.

Twiss, for the prosecution, proposed to call Taylor, to prove, not only that the prisoner did not buy the peas of him, but that, on the contrary, Taylor saw the prisoner steal them, and assisted him in so doing.

Carrington, for the prisoner, objected, that the prosecutor was not then at liberty to adduce further evidence of the prisoner's guilt. The learned Judge might, at any period of the cause, ask any question for the furtherance of justice, but the prosecutor, after the evidence given by the prisoner's daughter, could only give such matters in proof, as went to contradict the specific facts deposed to by her as that Taylor did not sell the peas, or that the price was not three shillings, or the like.

GARROW, B.-I think that is so.

This witness appears

to be only a witness in reply, and therefore his testimony is only admissible so far as it goes to destroy the case set up on the part of the prisoner.

Twiss, for the prosecution.

Carrington, for the prisoner.
[Attornies

Verdict-Not Guilty.

and D. Taunton.]

STAFFORD ASSIZES.

(Civil Side.)

BEFORE MR. JUSTICE PARK.

1826.

WOOLEY V. Batte.

Plea-General issue.

a

March 10th.

If a party recover damages

in case against one of two joint coach proprietors for an inju ry sustained by

the negligence such proprietor may maintain

of their servants,

an action against

his co-proprie

tor for contri

ASSUMPSIT for contribution. The plaintiff and defendant were joint proprietors of stage coach; and damages had been recovered in an action on the case, against the former only, for an injury done to Mrs. Jeavons, a passenger, by reason of the negligence of the coachman. The plaintiff had paid the whole of the damages and costs, and brought the present action to recover half the amount from the defendant as his partner. For the plaintiff, an examined copy of the judgment against him at the suit of the husband of Mrs. Jeavons, was put in. The declaration was in case, and stated the injury to have arisen from the negligence of the present the accident plaintiff and his servants, (in the usual form). It was also happened. proved, that the plaintiff paid the amount of damages and costs in that action, amounting to 1767., under an execution; that the plaintiff and the defendant were partners in the stage coach; and that the plaintiff was not personally present when the accident happened.

Jervis, for the defendant, contended, that as the action brought against the plaintiff was an action on the case for negligence, the plaintiff and defendant were joint tort feazors; and, therefore, one only being sued, he could not recover contribution from the other; and he cited Merryweather v. Nixan (a).

(a) 8 T. R. 186. In that case, the plaintiff and defendant were both sued in an action on the case for an injury done by them to the rever

sionary interest of a mill belong-
ing to a person named Starkey,
who recovered 8401. against both,
but levied the whole on the plain-

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bution, if he prove at the

trial that he was

not personally present when

1826.

WOOLEY

V.

ВАТТЕ.

Campbell, for the plaintiff.-No doubt the case of Merryweather v. Nixan is good law, and one tort feazor sued alone cannot recover contribution from another, who was a joint tort feazor with him; but here it is proved, that there was no personal fault in the plaintiff. The declaration of Jeavons against the present plaintiff might, with equal propriety, have been in assumpsit; in which case, the present plaintiff might clearly have recovered contribution; and it can hardly be contended, that the plaintiff should be deprived of his contribution by Mr. Jeavons's pleader drawing his declaration in one form instead of another.

PARK, J.—I think the plaintiff is entitled to recover.
Verdict for the plaintiff.-Damages, 887.

Campbell and Russell, for the plaintiff.

Jervis, for the defendant.

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If a prisoner THE prisoners were indicted for a burglary in the house

in gaol on a

charge of felo- of Mr. George Simcox.

ny, ask the

turnkey of the

gaol to put a letter into the post for him, and after his promising to do so, the prisoner give him a letter addressed to his father, and the turnkey, instead of putting it into the post, transmit it to the prosecutor; this letter is admissible in evidence against the prisoner, notwithstanding the manner in which it was obtained.

For the prosecution, a letter written by the prisoner Derrington was offered in evidence. It appeared, that, after Derrington was committed to Stafford gaol on this charge, he asked the turnkey if he would put a letter into the post; he promised to do so, and the prisoner gave him the letter in question, which was addressed to the prisoner's father; but instead of putting the letter into the post, the turnkey gave it to the visiting magistrates of the gaol, who sent it to the prosecutor.

Curwood, for the prisoner, objected, that a letter so obtained ought not to be admitted in evidence against the prisoner. This was a letter addressed by the prisoner to his father, and was obtained by a gross breach of trust. If the prosecutor had obtained the slightest verbal confession, by making the prisoner believe it was better for him to make such confession, it would be instantly rejected by the learned Judge; but here, by the most gross violation of all faith, the prosecutor obtained the possession of the most confidential letter a man could write, and then wished to adduce it in evidence. He therefore contended, that a letter so obtained came within the same rule as a confession made under a threat or promise.

GARROW, B.-I am clearly of opinion, that, in point of law, this letter is admissible in evidence. I remember, many years ago, making this very objection before the late Mr. Justice Gould, who overruled it. The only cases in which what a prisoner says or writes is not evidence, are two; 1st, where the prisoner is induced to make any confession in consequence of the prosecutor, &c. holding out any threat or promise to induce him to confess; and 2dly, where the communication is privileged, as being made to his counsel or attorney. This not being either of those cases, I must receive the evidence.

Verdict-Guilty.

1826.

REX

v.

DERRINGTON

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Injuring a sheep THE prisoner was indicted on the stat. 4 Geo. 4, c. 54,

by setting a dog

at it, is not such S. 2, for feloniously wounding a sheep.

a maiming or wounding as is within the stat.

4 Geo. 4, c. 54, s. 2.

It appeared, that the prisoner set a dog at the sheep, and that the dog, by biting it, inflicted several severe wounds.

Corbet, for the prisoner, objected, that this was not a wounding by the prisoner.

PARK, J.-This is not an offence at common law, and is only made so by a statute; and I am of opinion, that injuring a sheep by setting a dog to worry it, is not a maiming or wounding within the meaning of that statute.

By the stat. 4 Geo. 4, c. 54, s. 2, it is enacted, that "if any person shall unlawfully and designedly kill, maim, or wound any cattle, whether from malice conceived against the owner, or otherwise, or shall procure, counsel, aid or abet the commission of the said offences, or of any of them, or shall forcibly rescue any person lawfully in custody of any officer, or other person, for any of the said offences, every person so

Verdict-Not Guilty.

offending, being thereof lawfully convicted, shall be adjudged guilty of felony, and shall be liable, at the discretion of the Court, to be transported beyond the seas for life, or for such term not less than seven years as the Court shall adjudge, or to be imprisoned only, or to be imprisoned and kept to hard labour in the common gaol or house of correction, for any term not exceeding seven years."

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