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If, to prevent prejudice, the prisoner, at of felony as aforesaid, the said Elizabeth the request of his counsel, has not been Hilton, late of the parish of the Holy arraigned on the charge for the previous Trinity, in the said borough of Hastings, conriction before the verdict has been given single woman, being so convicted of on the substantive charge, he may afterwards felony as aforesaid, and Joseph M'Evin, be arraigned thereon, and the jury may late of the parish of the Holy Trinity, in afterwards inquire respecting it.

the borough of Hastings aforesaid, on the

23rd day of August in the year of our This was a case stated by the Recorder Lord 1858, with force and arms, at the of Hastings. At the Quarter Sessions for parish aforesaid, in the borough aforesaid, the Peace holden for the borough of Hast- and within the jurisdiction of the Court ings, on the 29th of October last, Eliza- of General Quarter Sessions of the Peace beth Hilton and Joseph M‘Evin were tried of our said Lady the Queen, within the (with William Robert Hilton, who was said borough, one purse containing several acquitted) on an indictment in the following pieces of the Queen's current silver coin words :- " Borough of Hastings, to wit.- of the realm, together of the value of The jurors for our Lady the Queen, upon 128., of the monies, goods and chattels their oaths, present that heretofore, to of one John Goddard, from the person wit, at the General Session of the delivery of Sarah Goddard, his wife, then and of the Queen's gaol, at Newgate, holden there feloniously did steal and carry away, for the jurisdiction of the Central Criminal against the form of the statute in that Court, at Justice Hall, in the Old Bailey, case made and provided, and against the in the suburbs of the city of London, on peace of our Lady the Queen, her Crown the 6th day of July in the year of our and dignity. Lord 1857, before certain Justices of our Second count: And the jurors aforesaid, said Lady the Queen, assigned to deliver upon their oaths aforesaid, do further the said gaol of Newgate of the prisoners present that the said William Robert therein being, William Robert Hilton, by Hilton, so being convicted of felony as the name of William Henrick, was then aforesaid, and the said Joseph M‘Evin, on and there convicted of felony, and which the said 23rd day of August in the year of said conviction is still in full force, strength our Lord 1858, with force and arms, at the and effect, and not in the least reversed, said parish last aforesaid, in the borough annulled or made void. And the jurors aforesaid, and within the jurisdiction last aforesaid, upon their oaths aforesaid, do aforesaid, one purse containing several further present that heretofore, to wit, at pieces of the Queen's current silver coin the General Sessions of the delivery of the of the realm, together of the value of 12s., Queen's gaol at Newgate, holden for the of the monies, goods and chattels of one jurisdiction of the Central Criminal Court, John Goddard, then lately before feloat Justice Hall, in the Old Bailey, in the niously stolen, taken and carried away, suburbs of the city of London, on the feloniously did receive and have, they Monday, the 27th day of October in the the said William Robert Hilton, Elizabeth year of our Lord 1856, before certain Jus- Hilton and Joseph M'Evin respectively, tices of our said Lady the Queen, assigned then and there, well knowing the said to deliver the said gaol of Newgate of the monies, goods and chattels to have been prisoners therein being, Elizabeth Hilton, feloniously stolen, taken and carried away, by the name of Elizabeth Mantrich, was against the form of the statute in such then and there convicted of felony, and case made and provided, and against the which said conviction is still in full force, peace of our Lady the Queen, her Crown strength and effect, and not in the least and dignity." reversed, annulled or made void. And At the request of the counsel for the the jurors aforesaid, on their oaths afore- prisoners, and to prevent the prejudice said, do further present that the said Wil- against them likely to arise from the part liam Robert Hilton, late of the parish of the indictment charging the former conof the Holy Trinity, in the borough of victions being read in the hearing of the Hastings, labourer, being so convicted jury in the first instance, the prisoners

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were arraigned on those parts of the in- Pollock, C.B.- It is a matter of perfect dictment only which charged subsequent indifference whether the previous convicoffences, it being intended to postpone tion is stated at the beginning or at the end their arraignment on their former convic- of the indictment. We think that there tions until the jury should have delivered is nothing in the objection, and that the their verdict on the subsequent offences. conviction is perfectly good.

The jury found Elizabeth Hilton guilty The other Judges concurred. of stealing and Joseph M'Evin guilty of

Conviction affirmed. receiving the goods and monies mentioned in the indictment. Upon this the prisoner Elizabeth Hilton was about to be arraigned on that part of the indictment charging

1858. CHAPMAN, appellant, v. ROa former conviction, when Mr. Ribton,

Nov. 6. BINSON, respondent. counsel for the prisoners, objected, contending that this was an irregular course

Recognizance on Appeal under 20 f. 21 and could not be pursued: but the gentle- Vict. c. 43. ss. 2, 3.- Highway-Encroachman who appeared for the prosecution ment-5 4 6 Will. 4. c. 50. ss. 63, 69. desiring, together with Mr. Ribton, that the matter should be reserved for the On an appeal from the decision of Justices, opinion of the Court for consideration under the 20 4:21 Vict. c. 43. ss. 2, 3, the of Crown Cases Reserved, I overruled appellant may enter into the required recogthe objection. The jury were then duly nizance at any time during the three days charged to inquire into the former convic- allowed for applying for a case, and he need tion, and found that Elizabeth Hilton had not enter into it simultaneously with making been before convicted as alleged in the in- the application. dictment. Mr. Ribton then moved in arrest The erection of a building within fifteen of juilgment, on the ground of the foregoing feet of the centre of a carriageway, which alleged irregularity, and also by reason of has been repaired by the surveyor for the the indictment alleging the former con- six months preceding, but not on any part of viction “is still in full force, strength and the highway which has been lately used for effect, and not in the least reversed, an. passage, is not an encroachment of which nulled or made void,” whereas by the Justices can take summary cognizance under expiry of the sentence such conviction had the 69th section of the 5 f. 6 Will. 4. c. 50. become vacated.

Ribton, for the prisoners (Nov. 13), ap- Case stated, on appeal, from the petty plied to have the case sent back, for the Sessions, held at Louth, in the county of purpose of having the evidence set out, in Lincoln. order that the point on behalf of the On the 20th of April 1858, an informaprisoner might be better raised.

tion was laid by John Robinson, the re[COCKBURN, C.J.-We will not estab- spondent, as surveyor of the highways for lish a precedent of sending back a case on the parish of Yarborough, in the county of the mere application of counsel.. We send Lincoln, against the appellant, John Chapa case back only when it appears to the man, "for that he, the said John Chapman, Court on the argument that it is imper- within the space of six calendar months fectly stated.]

then last past, to wit, between the 25th The case was now argued by

of March then last past, and the 14th Ribton, for the prisoner. After the of April then instant, at the parish of Yarprisoner was convicted of the principal borough, did unlawfully encroach on a charge, the first count was exhausted. certain carriageway there situate, being a There could not be a further inquiry certain highway leading from the parish respecting the previous conviction. of Yarborough aforesaid to the parish of averment respecting the previous convic- Covenham St. Mary, by then and there tion is part of the first count, and does not, making, or causing to be made, a certain as is usual, follow it in the indictment. building, to wit, a mud and stud cottage,

Hurst, for the prosecution, was not heard. within fifteen feet of the centre of the said carriageway, contrary to the 5 & 6 Will. 4. shed and piece of land, and put a hay. c. 50. (the General Highway Act).” stack on part of the land, and he occupied

The case was heard on the 4th of May the same until his death, when his widow 1858, and the Justices convicted the ap- continued in possession until she married pellant in a nominal penalty and costs. the appellant, who then entered into pos

At the hearing of the information it was session of the piece of land in question, and proved, on behalf of the respondent, and has so continued ever since. Before beadmitted by the appellant, that the ap- ginning to build the cottage, the appellant pellant had, at the period alleged, begun applied, in the month of March last, at a to erect the mud and stud cottage men- meeting of the said parish of Yarborough, tioned in the information, and that such in vestry assembled, for their sanction, upon building was still standing; that the front which he was informed that there would of the said building so erected was within be no objection, provided he did not build fifteen feet of the centre of the said high- within fifteen feet of the centre of the road. way, that is, of that portion of the highway The building or alleged encroachment does which was repaired with hard materials not extend nearer to the centre of the and formed the carriageway mentioned in road than the cow-shed formerly did. the said information. The respondent also On the above facts it was contended, produced an award, made by the Com- on behalf of the appellant, first, that inasmissioners under an act of parliament for much as the piece of land in question had the inclosure of the open fields, in been inclosed before the passing of the the parish of Yarborough, dated the 5 & 6 Will. 4. c. 50, the building of the 31st of October 1813, to which award cottage thereon by the appellant, under the was annexed a plan of the new and old circumstances stated, did not constitute an inclosures and the public roads in the encroachment within the meaning of the parish as they existed at that time, and act; secondly, that the said cottage was from such plan it appeared that a piece of not erected on the highway as defined by land, including the present site of the the 63rd and 69th sections of the act, and cottage, or alleged encroachment, had not the case of Evans v. Oakley (1) was cited been fenced in at that time, and that in support thereof; thirdly, that there nothing had been built upon it, but was was a bona fide claim of right and title on represented in the said plan as being open the part of the appellant in question before to and forming part of the said highway. the Justices; and, therefore, they had no It was further proved, that up to about jurisdiction. two or three years after the inclosure, the The grounds of the determination were, said piece of land, including the site of the that as the piece of land in question was alleged encroachment, was open to the high- originally part of the highway, and had way, and could be used by the public for been used by the public, and that as the riding and driving upon, although the same cottage built by the appellant was erected had never been repaired as part of the road, on a part of such original highway, and and that nothing at that time was built within fifteen feet of the centre of the carupon it. That about the period mentioned, riageway, the encroachment was within the namely, about two or three years after the the 69th section of the act. inclosure, one Edward Kirk built a cow-shed On the case being called onupon part of the piece of land in question, Hayes, Serj., for the respondent, took and nearly upon the present site of the a preliminary objection to the case being alleged encroachment. Shortly after the heard, producing affidavits which disclosed, erection of this cow-shed, Edward Kirk that on the same day on which the defenced off the said piece of land from the cision of the Justices had been given, the road with posts and rails. A quick fence appellant applied in writing for a case, to was substituted about twenty years ago,

which application the Justices said they and the piece of land in question has ever would accede, and on the third day from since continued, and still is, so fenced off thence, and before the case was stated or from the road. After the death of Edward Kirk, his son took possession of the cow

(1) i Car. & K. 125.

delivered to him, the appellant entered into Boden, for the appellant.—The statute the required recognizance to prosecute the never intended to give the Justices jurisappeal, &c.--It is submitted that the recog- diction to try and determine a question of nizance was not entered into in time. The title in this summary manner, after the land 20 & 21 Vict. c. 43. s. 2. enacts, that has in fact ceased to be a highway so long either party aggrieved by the decision of the as forty-five years. Section 63. does, in Justices may apply in writing, within three effect, prohibit the Justices from trying any days after the decision, to the Justices to such question, by defining a highway, as state a case; and by section 3, "the appel- to these summary convictions, to be that lant at the time of making such application, part which has been repaired within six and before the case shall be stated and months; and the summary power of condelivered to him by the Justices, shall in viction and removal of the encroachment, every instance enter into a recognizance to given by section 69, is a ready way of prosecute the appeal," &c. The recogni- preventing encroachments when recent. zance must be entered into at the time of application; in the present case, the re- LORD Campbell, C.J.—The act of parcognizance was not entered into until three liament would be harsh and tyrannical did days after.

it give Justices power of inquiring into Lord CAMPBELL, C.J. - We think the a nice question in this summary manner, recognizance was in time : it was entered and declaring to be public property that into within the time limited for making which has subsisted for half a century as the application for a case.

private ; and I am of opinion that in the Hayes, Serj., for the respondent, in sup- true construction of this act power is given port of the conviction.—The conviction to Justices thus to inquire into recent was right: it was under the Highway Act, encroachments only. It is clear that, 5 & 6 Will. 4. c. 50. s. 69, for encroaching within fifteen feet of the centre of the on a carriageway, by building within fifteen carriageway, must mean within fifteen feet of the centre of the highway. Section feet of the way which has recently been 69. enacts, “ That if any person shall en- repaired; but the encroachment must be croach by making or causing to be made on the same way which has been used and any building, hedge, ditch, or other fence, enjoyed by the public as a carriageway; on any carriageway or cartway within the and in the present case the cottage was distance of fifteen feet from the centre not built on any part of the highway within thereof, he shall forfeit on conviction a that. The land built upon may be, in sum not exceeding 40s."; and by section fact, part of the highway in the general 5. a highway is defined to include any sense; but I think the Justices were wrong carriageway, cartway, &c.; and section 63, in holding that there had been an encroachno doubt, says, "that where anything is for- ment on the highway within the 69th secbidden to be done within a certain distance tion of the act, and that the conviction of the centre of the highway, that portion

should be quashed. shall be deemed to be highway which has Wightman, J.-By the 69th section the been maintained by the surveyor as high- encroachment must be by building on the way, and repaired with stones or other ma- carriageway within fifteen feet of the centre terials for the six months immediately pre- thereof, that is, on and within fifteen feet ceding;” but this definition of the highway, of the centre of a highway, as defined by as what is technically called the "metal" section 63, viz., on that part which has part, only applies to the purpose of ascer- been recognized as road, and as such retaining the centre or line from which the paired by the surveyor within six months. measurement is to be made ; and the side HILL, J. (3) concurred. of the “metal" highway is not less high

Conviction quashed. way; and the Justices having found that the land built upon is part of the highway, this finding is conclusive, and the conviction was therefore right. Evans v. Oakley is distinguishable.

(3) Erle, J. had left the Court for chambers.

[CROWN CASE RESERVED.) 1858. | VENABLES, appellant, v. HARD. Nov. 10. S

1858. ? MAN, respondent.

THE QUEEN V. LYONS.

Nov. 20. S Case stated by Justices-Costs --Convic

Arson-Setting Fire to Goods in a House tion quashed—208, 21 Vict. c. 43.

-Intent to defraud. Upon appeal, under 20 & 21 Vict. c. 43, A person who maliciously sets fire to his against a conviction under a local turnpike own goods in his own house with intent, by act, for illegally taking toll, the conviction burning the goods, to defraud an insurance was quashed :-Held, that the party prose- office, but does not set fire to the house, may cuting must pay the costs.

be convicted of felony, under an indictment

framed upon the statutes 14 & 15 Vict. c. 19. Case stated by Justices for the con- and the 7 Will. 4. . 1 Vict. c. 89. sideration of this Court.

It is sufficient for the purposes of this The following case was stated at the report to state that the appellant, who was Summer Assizes for the county of Salop, the collector of tolls at a gate, called the by Byles, J. Thrutch Bar, on the Haslingden and Tod- The prisoner was indicted for setting morden turnpike-road, was convicted of fire, in a house in his own occupation, to taking toll from the respondent for certain his own goods, consisting of furniture and carts, for which toll had been previously stock in trade, with intent to defraud an paid at another toll-bar on the same turn- insurance office. The goods, according to pike-road, the respondent being, as was the evidence, had been insured against fire, alleged, exempt by the provisions of the and were in the prisoner's own house, no local act from payment of the toll so part of which house was burnt. It was taken by the appellant.

objected, that the setting fire to the priMonk (Kay with him), for the respon- soner's own goods was not felony at comdent.

mon law; that the prisoner could only be Pashley (Unthank with him), for the convicted, if at all, under the 14 & 15 Vict. appellant, was not called upon.

c. 19. s. 8, which enacts, that if any per

son shall wilfully and maliciously set fire Per Curiam.—The conviction is wrong. to any goods, being in a building, the

setting fire to which building is made Pashley.—The appellant is entitled to felony by statute, he shall be guilty of his costs.

felony ; that the setting fire to a man's Monk.—No, the Magistrates have de- own house, being no offence at common cided the case in favour of the respon- law, the only statute which makes it a dent, and he comes here to support their felony is the 7 Will. 4. & 1 Vict. c. 89. decision. That being the case, he ought s. 3, whereby it is enacted, that whosoever not to be compelled to pay costs.

shall maliciously set fire to any house, Pashley.— The question is between the &c., whether the same shall be in the postoll-payers and the turnpike trust.

session of the offender or of any other

person, with intent thereby to injure or LORD CAMPBELL, C.J.-Section 6. of defraud any person, shall be guilty of 20 & 21 Vict. c. 43. provides that the felony; that the setting fire to a man's Justices are not to be liable to any costs in own house with intent to defraud, not by respect or by reason of an appeal against burning the house, but by burning the their determination ; but I think that the goods therein, was not made felony by the costs ought to be paid by the party pro- last-mentioned statute. The jury found secuting.

the prisoner guilty of maliciously setting WIGHTMAN, J., Erle, J. and Hill, J. fire to his own goods in his own house, concurred.

with intent, by burning the goods, to defraud Conviction quashed, with costs.

Coram Pollock, C.B., Williams, J., Wightman,

J., Byles, J. and Hill, J. NEW SERIES, XXVIII.-Mag. Cas.

F

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