receipt of goods, the stealing of which amounts to a felony "either at common law or by virtue of this Act." The fraudulent taking of partnership goods by one of two partners is not a crime either at common law or 24 & 25 Vict. c. 96, and therefore the case does not come within s. 91. No question can at present arise as to the prisoner's liability as an accessory, because he is not indicted as such.

[He referred to Dwarris on Statutes, 634-5, and Rex v. Handy (6 T. R. 286.)]

Campbell Foster, for the prosecution. 24 & 25 Vict. c. 96, s. 91, extends to the case of goods stolen by a partner. 31 & 32 Vict. c. 116, does not create any new offence, it only alters a technical rule respecting the effect of the joint ownership of property. The stealing of goods is a felony at common law, but one of several joint owners of goods taking the goods could not be convicted of this felony. 31 & 32 Vict. c. 116, abolishes this rule as to joint ownership; and a joint owner is now in the same position in this respect as a mere stranger, and may be convicted of stealing goods in which he has a joint property. The offence of which he may be thus convicted is not a new one created by the statute, but an old common law offence, and therefore within the meaning of s. 91 of 24 & 25 Vict. c. 96.

Cur. adv. vult.

June 4. The judgment of the Court (Bovill, C.J., Willes, Byles, and Hannen, JJ., and Cleasby, B.) was delivered by

BOVILL, C.J. The prisoner was convicted for feloniously receiving stolen goods, knowing them to have been stolen, contrà formam statuti. There was no count charging the prisoner as accessory either before or after the fact. The statement of facts shews evidence of a receipt of goods stolen by one partner of the firm, with knowledge of their being stolen. It further states facts which might, perhaps, have been relied on to sustain a charge of being a simple accessory to the felony if the indictment had contained a count to that effect. We must, however, deal with the only question raised, viz., whether the conviction upon the special charge of feloniously receiving stolen goods can be sustained.

Section 91 of 24 & 25 Vict. c. 96, creates the felony charged in these terms: "Whosoever shall receive any chattel, &c., the stealing, &c., whereof shall amount to a felony either at common law or by virtue of this Act, knowing the same to have been feloniously stolen, &c., shall be guilty of felony, and may be indicted and convicted either as an accessory after the fact or for a substantive felony, and shall be liable, at the discretion of the Court, to a maximum sentence of fourteen years penal servitude." At the time that Act (24 & 25 Vict. c. 96) was passed theft by a

partner of the goods of the firm did not fall within the criminal law, either common or statute. This defect was supplied By 31 & 32 Vict. c. 116, which, after reciting that "it is expedient to provide for the better security of the property of co-partnerships and other joint beneficial owners against offences by part owners thereof, and further to amend the law as to embezzlement," proceeds to enact, by the first section, that if a partner, or one of two or more beneficial owners, shall steal, &c., any property of such co-partnership or such joint beneficial owners, "every such person shall be liable to be dealt with, tried, convicted, and punished for the same as if such person had not been or was not a member of such co-partnership, or one of such beneficial owners." This enactment is, therefore, limited in words to the fraudulent partner, and does not directly extend to third persons who deal with the property, though in collusion with such partner. In order to reach such persons either the law as to accessories must be resorted to, or it must be shewn that 24 & 25 Vict. c. 96, s. 91, is extended by implication to, and is to be read as incorporated in, 31 & 32 Vict. c. 116.

As to the law of accessories we do not suggest any doubt that if a statute creates a felony or misdemeanour, it by implication forbids counselling, aiding, or abetting the offence. This is now provided for in language strongly contrasting with that of 24 & 25 Vict. c. 96, s. 91, as to felony by 24 & 25 Vict. c. 94, s. 1, that "whosoever shall become an accessory before the fact to any felony, whether the same be a felony at common law or by virtue of any Act passed or to be passed, may be indicted, tried, convicted, and punished in all respects as if he were a principal felon." The case of accessories after the fact is provided for in like prospective terms by s. 3. Also as to misdemeanours by s. 8: "whosoever shall aid, abet, counsel, or procure the commission of any misdemeanour, whether the same be a misdemeanour at common law, or by any Act passed or to be passed, shall be liable to be tried as a principal offender." And apart from these enactments, the common law would have supplied a remedy, though without the statutory facilities of procedure. As already pointed out, however, the conviction of the prisoner is not as of a simple accessory, whether before or after the fact; and it cannot be sustained upon that footing. The question, therefore, depends upon whether 24 & 25 Vict. c. 96, s. 91, is extended by inference or implication to the present case; if not, the conviction was wrong, because at the common law receivers of stolen goods, unless they likewise received and harboured the thief, were guilty of a bare misdemeanour, for which they were liable to fine and imprisonment: Foster's Crown Law, p. 373; and there could not be a conviction for a misdemeanour upon the present indictment for felony.

The subject of extending statutes by inference, to include cases not originally contemplated, is one which has given rise to several decisions, the leading characteristic of which is, that the earlier statute deals with a genus within which a new species is brought by a subsequent Act. Thus, choses in action were not originally within 13 Eliz. c. 5, against fraudulent conveyance, that statute being applicable only to property which could be taken in execution: Sims v. Thomas (12 A. & E. 536); but as to choses in action made subject to execution by 1 & 2 Vict. c. 110, there can be no doubt that by the conjoint operation of that Act and the 13 Eliz. c. 5, such choses in action, having become, by new enactment, a species of the genus property subject to execution, did, without any express enactment to that effect in the later statute, become subject to the operation of the former Act: Norcutt v. Dodd (Cr. & Phill. 100); Barrack v. McCulloch (3 K. & J. 110; 26 L. J. (Ch.) 105). So that, if 24 & 25 Vict. c. 96, s. 91, is to be read as a general enactment, that for the future any person receiving goods stolen with a guilty knowledge that they were stolen should be liable to be indicted for felony as a receiver, the subsequent statute having introduced a new species of larceny, it might have been contended that the general provision as to receiving in the former statute was by inference extended to the new species of larceny.

There are, however, several difficulties in the way, upon the construction of 24 & 25 Vict. c. 96, of arriving at that result: first, the express words of s. 91, "either at common law or by virtue of this Act;" secondly, the fact that the statute, in pari materia, as to accessories, does expressly refer to Acts to be passed; thirdly, the character

of the extending enactment, 31 & 32 Vict. c. 116, which deals not so much with property or acts of a particular species, as with a class of persons whom it specifies, and against whom only it is in terms directed, viz., partners and part owners, so that the effect is to create a new class of offenders; fourthly, the rule peculiarly applicable to the elaborate criminal legislation of which the statute under consideration forms a part, against extending penal enactments by construction. This latter rule may be illustrated by reference to the statute 31 Eliz. c. 12, s. 5, which took away clergy from an accessory in horse stealing, upon which it was held that the enactment extended only to such persons as were in judgment of law accessories at the time the Act was made, viz., accessories at common law, and not to such as are made accessories by subsequent statutes; and, therefore, a person knowingly receiving a stolen horse, though made an accessory by subsequent statutes, was held not to be ousted of clergy by the statute of Elizabeth: Foster's Crown Law, p. 372. Upon these grounds we think the statute 24 & 25 Vict. c. 96, s. 91, cannot be extended by construction, so as to include a receiver of property stolen by a partner, so as to make such receiver liable in the discretion of the Court to the grave punishment of fourteen years penal servitude thereby imposed, as the prisoner would be if this conviction were sustained-a circumstance which makes the authority cited from Foster especially applicable. The conviction must, therefore, be quashed. Conviction quashed.

Attorneys for prosecution: Williamson, Hill, & Co.; for Bond & Barwick, Leeds.

Attorney for prisoner: A. Billington, Leeds.

Merchant Shipping Acts to take away that jurisdiction, and also, by reason of s. 106 of the Merchant Shipping Act, 1854, which provides that, as regards the punishment of offences committed on board such a ship, she shall be dealt with in the same manner as if she were a recognized British ship.

CASE stated by Hannen, J.:—

Indictment charging the prisoner with maliciously wounding one W. Bedlington with intent to do him grievous bodily harm. The prisoner was tried at the last spring assizes for Cornwall.

The prisoner was a sailor on board the bark Statesman, and while on the high seas on a voyage from Alexandria to Falmouth he

inflicted on W. Bedlington, the mate of the vessel, a dangerous wound with a knife.

The master, the boatswain, and one of the crew of the Statesman, stated that the vessel was a British ship of Shields, and that she was sailing under the British flag, but no proof of the register of the vessel, or of the ownership, was given.

It was objected on behalf of the prisoner that this evidence was not sufficient to establish that the ship was a British ship, and that without proof of the ship having been registered as a British ship the prisoner could not be convicted.

This was the question for the consideration of the Court.

The jury found the prisoner guilty.

May 7. No counsel appeared.

Cur, adv. vult.

June 4. The judgment of the Court (Bovill, C.J., Willes, Byles, and Hannen, JJ., and Cleasby, B.) was delivered by

BOVILL, C.J. We think the conviction in this case was correct. The evidence was, in our opinion, sufficient to prove that the vessel was a British ship without proof of her having been registered; and even if it had

appeared that she had not been registered, we think the prisoner ought to have been convicted: first, because there is nothing in the Merchant Shipping Acts to take away the criminal jurisdiction of the Court; and, next, by reason of the provision at the end of s. 106 of the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104) (1), which provides that, as regards the punishment of offences committed on board such a ship, she shall be dealt with in the same manner as if she was a recognized British ship. The conviction will, therefore, be affirmed. Conviction affirmed. (2)

(1) 17 & 18 Vict. c. 104, s. 106, enacts that, "whenever it is declared by this Act that a ship belonging to any person qualified according to this Act to be owner of British ships, shall not be recognized as a British ship, such ship shall not be entitled to any benefits, privileges, advantages, or protections usually enjoyed by British ships, and shall not be entitled to use the British flag or assume the British national character; but so far as regards the payment of dues, the liability to pains and penalties, and the punishment of offences committed on board such ship, or by any persons belonging to her, such ship shall be dealt with in the same manner in all respects as if she were a British ship."

(2) See Leary v. Lloyd, 3 E. & E. 178; 29 L. J. (M.C.) 194.

June 11, 1870. THE QUEEN v. Evidence-Onus of Proof-Receiving Stolen Goods -Previous Conviction-Habitual Criminals Act (32 & 33 Vict. c. 99), s. 11-Construction.

32 & 33 Vict. c. 99, s. 11, enacts, that when any person who has been previously convicted of of certain specified offences" is found in possession of stolen goods, evidence of such previous conviction shall be admissible as evidence of his knowledge that such goods have been stolen ;” and in proceedings against such person as receiver of stolen goods, proof may be given of his previous conviction, "provided that not less than seven days' notice shall be given to such person that proof is intended to be given of his previous conviction, and that he will be deemed to have known such goods to have been stolen until he has proved the contrary":

Held, on an indictment for receiving stolen goods, that service of a notice under this section and proof of a previous conviction does not relieve the prosecution from the necessity of proving that the prisoner knew that the goods had been stolen.

CASE stated by H. S. Giffard, Q.C., Commissioner.

JOHN DAVIS. [1 C. C. R. 272.]

Indictment for receiving stolen goods, knowing them to be stolen.

The prisoner was tried at the last spring assizes for Glamorganshire.

At the trial a notice under s. 11 of 32 & 33 served upon the prisoner, and also that in the Vict. c. 99 (1), was proved to have been duly year 1867 the prisoner had been convicted of

(1) 32 & 33 Vict. c. 99, s. 11, enacts that, 'where any person, who either before or after the passing of this Act has been previously convicted of any offence specified in the first schedule hereto" [which includes larceny], . . . “is found in the possession of stolen goods, evidence of such previous conviction shall be admissible as evidence of his knowledge that such goods have been stolen; and in any proceedings that may be taken against him as receiver of stolen goods, or otherwise in relation to his having been found in possession of such goods, proof may be given of his previous conviction before evidence is given of his having been found in possession of such stolen goods; provided that not less than seven days' notice shall be given to such person that proof is intended to be given of his previous conviction, and that he will be deemed to have known such goods to Lave been stolen until he has proved the contrary. . ."

larceny, and that he had received the goods which were the subject of the indictment, and that those goods were stolen.

The jury were told that the legislature must be taken to have intended that the notice should have the operation which, upon the face of it, it purported to have, and that the prisoner ought to be deemed to have known such goods to have been stolen until he proved the contrary.

The jury found the prisoner guilty. The question was, whether the direction to the jury was right.

June 4. No counsel appeared.

June 11. THE COURT (Kelly, C. B., Martin, B., Blackburn, Mellor, and Montague Smith, JJ.) held that the conviction must be quashed. Conviction quashed.

Prison-Contribution by Borough sending Prisoners to County Gaol-Expenses of Enlargement of Prison-5 & 6 Vict. c. 98, s. 18-28 & 29 Vict. c. 126, ss. 23, 24.

A borough sending its prisoners to the county gaol, without any special contract, is liable, under 5 & 6 Vict. c. 98, s. 18, to pay a proportion of the expenses of the enlargement of the prison necessary in order to conform to the requirements of 28 & 29 Vict. c. 126.

RULE, calling on the Council of the borough of Wigan to shew cause why a writ of mandamus should not issue commanding them to pay to the governor of the gaol of Kirkdale 12421. 19s. 9d. for the conveyance, transport, maintenance, safe custody, and care of Wigan prisoners in the gaol from the 1st of December, 1867, to the 30th of November, 1868, and if necessary, to make and levy a rate for that purpose. (1)

(1) Under 5 & 6 Vict. c. 98, s 18, which enacts:-"In every borough to which a separate court of sessions of the peace hath been or shall hereafter be granted, or purported to be granted, and where the persons committed for offences arising within such borough have been, or shall hereafter be, sent to any prison of the county in which such borough is situated, and that no special contract shall be subsisting between such borough and county relative to the said prisoners, the council of such borough shall pay or cause to be paid to the treasurer of such prison, or other person appointed by the justices of the peace in general or quarter sessions assembled, for the county in which such prison is situated, the actual expenses heretofore incurred, or hereafter to be incurred, in the conveyance, transport, maintenance, safe custody, and care of every such prisoner, according to the time for which each such prisoner shall have been or shall remain in custody there, at the average daily cost of each prisoner, according to the whole number of prisoners confined in the said prison, such average to be taken yearly, half-yearly, quarterly, or at such other intervals, as the visiting justices of the prison shall from time to time determine, including in such expenses all salaries of officers, all expenses of repairs, alterations, additions, and

The borough of Wigan, which has a separate court of quarter sessions, had for some years sent its prisoners to the county gaol at Kirkdale, without any special contract.

During the year from the 1st of December, 1867, to the 30th of November, 1868, some extensive alterations and repairs and additions took place in the prison in order to make the prison conform to the Prisoners Act, 1865 (2), under the sanction and express requirement of the Secretary of State. The additions consisted of a corridor containing 132 cells, cookhouse, bakery, washhouse, laundry, male and female hospitals and fever wards, storehouse, chief warder's house, and house for female officers.

During the above period the number of Wigan prisoners, from exceptional and temporary causes, had been far above the average.

The Council of Wigan offered to pay the amount of expenses appropriate to their pri

improvements in or to the said prison, all sums paid to prisoners under any Act of Parliament on their discharge or otherwise, and any other charge whatsoever on account of the prisoners confined in such prison; subject nevertheless to a proportional share of all deductions on account of the earnings of prisoners in the said prison, and of all sums of money received in aid of the rates levied for the maintenance of the said prison.

39

By s. 20, the above expenses are to be defrayed out of a rate made and levied for the purpose by the council of the borough in the same way as a borough rate; and in case of dispute as to the amount, it is to be settled by a barrister agreed upon between the visiting justices and the council, or in default of such agreement by a barrister to be appointed as under 5 Geo. 4, c. 85.

(2) 28 & 29 Vict. c. 126 makes additional requirements as to the discipline, classification, and separation of prisoners; by ss. 23, 24, the prison authorities may alter, enlarge, or rebuild all or any parts of the prison, on the certificate of the visiting justices, sanctioned by the Secretary of State; and by s. 35 the government allowance may be withheld, by the certificate of the Secretary of State, from any prison, if the requisitions of the Act have not been complied with.