Fine for disobeying an habeas corpus. THE KING v. Captain FALKINGHAM. THE defendant was Captain of a man of war, and was brought up on an attachment, for not only disobeying an habeas corpus for delivering an impressed sailor, but also impressing four of the boat's crew, which brought the writ. He had agreed with the injured parties for their private satisfaction; and the Court (absente Foster, J.) were pleased to consider the public offence as a mere inadvertence; otherwise, they said, a fine of 20007. had been formerly set on such an occasion; and dismissed the Captain, on payment of a fine of 10l. (y). (y) See Good's Ca., ante, 251. [ 270 ] HILARY TERM,-1 GEO. III. 1761.-K. B. Court will cen sure an unne cessary length of pleading. [ *271 ] YATES v. CARLISLE et al'. REFERENCE to the Master, to report, by whose fault the *Robinson, in propriá personâ, shewed cause against this report, no other counsel caring to be employed; and insisted, he had a right to do what he had done, and that he thought the whole declaration necessary. The Court strongly inclined to fix some heavy censure upon him (a), but desired that, previously, the question of right might be tried: and it was recommended by the Court to Serjeant Hewit, ex parte Robinson, and Mr. Winn, for the defendants, to settle an issue for that purpose; which they did the next day, in a quarter of a sheet of paper; and it went down to be tried on the northern circuit. Vid. Trinity Term, 1761, post, 291. (a) As to the length of modern pleadings, see Hale's Hist. C. L. by Runnington, 211, 212, n. (a), ed. 1820. YATES v. CARLISLE. MAXWELL v. MAYRE. S. C. 2 Burr. 1026, not S. P.; S. C. 3 Burr. 1314. TRESPASS by a Scots pedlar (b). The question was, whe- manufactures by wholesale in England with out licence? Aston, for the plaintiff.-In the statute 3 & 4 Anne, c. 4, there is a clause, sect. 14, which privileges all persons trading by wholesale in the linen and woollen manufactures of this kingdom. Then comes the statute of Union (c), which unites the two kingdoms. Now, therefore, Scots manufactures are the manufactures of this kingdom. England as a kingdom is no more. The 4th, 6th, and 18th articles of the Union communicate the same rights, as to trade, throughout the whole united kingdom. The 25th article vacates all laws inconsistent with the Union. The place of the vendor's nativity is immaterial. We insist, that a native of Reading may sell Scots manufactures by wholesale. Cases happening under subsequent statutes, which fall within the reason of antecedent ones, are subject to the penalties or privileges of those antecedent statutes. Plowd. 127, Case of Statute of Acton Burnel and Statute de Mercatoribus;-of Statute of Wills and Statute of Jointures, 12 Mod. 485, *486, [ *272 ] Lord Holt's argument; Buckley and Thomas, Plowd. 120, Welch sheriffs subject to the penalties of 23 Hen. 6, for a false return; though united to England so late as 27 Hen. 8. In that case, the defendant was subjected to a penalty; in this, the plaintiff claims an exemption from a penal law. 5 Co. 49 b, Vaughan's Case, Resolution 2, All the statutes of Jeofails extend to Wales, because made parcel of England. Stat. (b) The plaintiff was a native of Scotland, carrying linen goods, of the manufacture of Scotland, from town to town in England, and exposing them to sale in a room in each town by wholesale only. The defendant, a justice of peace, convicted him for not producing a license, and issued his warrant to distrain, on which the present action was brought. S. C. 3 Burr. 1314. See also R. v. Little, 1 Burr. 609. A licensed auctioneer, sell- (c) 5 Anne, c. 8. See Serj. Running- MAXWELL v. MAYRE. 20 Geo. 2, c. 42(d), (the Glass Act), declared, that wherever England is mentioned in any act of Parliament, it did always extend to Wales. See also statute 7 Anne, c. 21, Preamble. Saxby's Book of Customs says, the word "England" must be changed into Britain, in all clauses touching the revenue, by virtue of the Union. Burn's Justice, Introd. 21, pl. 23, same point. These shew general usage and received opinion.Infra hoc regnum, since the Union, always taken to include Scotland; therefore in indictments for trading contrary to the 5 Eliz. (e), the words Infra hoc regnum have been held bad, since the Union (f). Obj. That by statute 4 Geo. 1, c. 6, vendors of English bone lace, by wholesale, are declared not to be within the Hawkers' Act; and thence argued, that vendors of Scots bone lace are not included. Answ. This is only a description of the species of manufacture (as China ware, Delft ware, Dutch tea-kettles, &c.) originally invented in England, but now carried on elsewhere. Norton, for the defendants.-General rules of construction are these:-1. Where many laws relate to the same thing, the best way is to consider them as one law. 2d. You can't take a part of a law, and reject the rest. 3d. Exemptions from a law can only be co-extensive with the law itself. Thus, where provisoes are made by way of exception, the exceptions can only extend to those, who would otherwise be the objects of the general enacting part. Let us attend to the history of this [ *273 ] law. *It began in 7 W. 3.-8 & 9 W. 3, c. 25, gave the first duty on hawkers and pedlars; 9 & 10 W. 3, c. 27(g), is now the standing law. In 12 W. 3, duty continued to 1706: and to 1710, by the 3 & 4 Anne, c. 4, which recites doubts concerning the linen and woollen manufactures of this kingdom, and exempts them from taking a license. In 5 Anne, c. 8, the Act of Union: before which the manufactures of Scotland were certainly liable to penalties. Regulations of particular modes and branches of private trade are local, and confined to this kingdom of England. The Hawkers' Act not once noticed in the Act of Union: but in art. 18, this difference is expressly taken between a general and private right: and particular provisions are made for the importation of cattle, and the manufacture of coarse cloth. 5 Anne, c. 19 (subsequent to the Union) continues the duties on hawkers for ninety-six years from 1710.-1 Geo. 1, c. 12, makes the duty perpetual. Neither of them extend it to Scotland. Would the Scots have the benefit of the exemption, and not bear the burden? Here the three propositions before laid down will apply. The construction contended for would demolish half of the revenue. The 4 Geo. 1, c. 6, concerning English bone lace, is a legislative exposition of the Act of Union, so far as relates to this (d) Sect. 3. 230. See R. v. Pemberton, ante, (f) R. v. Briton, 2 Barnard. K. B. 147, 172. See 20 Vin. Abr. 335, Trade, (K), pl. 18. (g) Repealed by 50 G. 3, c. 41, which contains the regulations now in force. point, and shews, that a distinction may still be made between This being a very general question, Curia advisare vult. MAXWELL V. MAYRE. THE KING v. WHEATLEY. S. C. 2 Burr. 1125. due quantity, DEFENDANT was indicted, for that he, being a common Delivering less brewer, and intending to deceive and defraud one Richard beer than conWebb, delivered to him sixteen gallons, and no more, of amber tracted for as the beer, for and as eighteen gallons, which wanted two gallons of not indictable. the due measure contracted to be delivered; and received 15s. for the same; to the evil example, &c. and against the peace, &c. After conviction before Lord Mansfield, C. J., at Guildhall; *Morton moved in arrest of judgment, that this was not an [274 indictable offence, being merely a breach of civil contract, and not a selling by false measure: and cited K. and Gombroon, H. 24 Geo. 2(h); a case in point: the indictment there was quashed. K. and Driffield, H. 27 Geo. 2(i); indictment for fraudulently selling a quantity of coals, as two bushels according to the standard in the Exchequer.-Quashed. K. and Harman Heath; indictment for selling seventeen gallons and an half of Geneva, as and for nineteen gallons.—Quashed, being only a breach of civil contract. Perhaps it will be said, none of these indictments were supported or argued; but that [is] no legal objection, [for] the Court won't quash, unless upon the face of them [they are] quashable. The conclusion rather is, that they were looked upon as not defensible. The Court is the more strict upon indictments, because this mode of prosecution (when adopted instead of a civil action) admits the party complaining himself to be a witness. In all Tremaine's Precedents, title Cheat, not one indictment for this offence, unless where coupled with a conspiracy or false token. Yates on the same side.-Wrong, alone, will not warrant an indictment; it must be accompanied with a deceit, and such a one, as shews a general plan of imposing upon the public. Here is no charge for using false measures, but only for not delivering the quantity agreed on. The defendant has delivered fewer gallons; non constat, that he used a false gallon measure. In the most common way of cheating now practised, that of jockeyship, an action always lies, not an indictment. Norton, in support of the indictment, argued, that after a verdict the Court will do what it can, to support an indictment. All offences of a public nature are indictable. This is done in a course of trade. The defendant [is] stated to be a common brewer: no rule, that because an action may be THE KING v. WHEATLEY. brought, therefore an indictment cannot. None of the cases cited were after verdict. After verdict, I may suppose any fact consistent with the indictment. I will therefore suppose the fraud to have been committed by using a false and de[ *275 ] ceitful cask, which, in truth, was the real case. *The words, as and for eighteen gallons, are large enough to found a charge of false measure. In all the cases cited for the defendant, the point was never mooted in one of them. (Note, Wilmot, J., said, that the King and Gombroon was litigated, according to his note of it, and many cases cited.) Quashing an instronger than ar dictment much resting judg ment. Lord MANSFIELD, Č. J.-I wish this indictment could be supported, because the offence is a common practice; and in this case, I remember it appeared to have been done knowingly. In all criminal proceedings, I think the settled forms of law should be strictly adhered to; in this case, the law is already settled, and I think upon very wise foundations. If any distinction is made between quashing, and arresting judgment, that of quashing is the strongest way; because the indictment must be very grossly bad, to have the Court quash it at once. No latitude of construction, no intendment of law, can go to any thing, but what is contained in the indictment. The whole must be supposed true, as it stands; for a motion in arrest of judgment is in the nature of a demurrer. I think this case not indictable; it only amounting to unfair dealing with, and an imposition on, a private man; whose own carelessness it was not to measure the cask. All indictable cheats are where the public in general may be injured; as by using false weights, measures, or tokens;-or where there is a conspiracy. None of these are laid in this indictment. Many stronger cases than this (that of jockeyship (k) in particular) are not indictable. M. 6 Geo. 1, K. and Wilder; the defendant, a common brewer, was indicted for selling ale in casks marked as containing so many gallons, when in fact they contained only so many. The Court unanimously quashed the indictment. DENNISON, J.—Of the same opinion. What is it to the public whether Richard Webb has, or has not, his eighteen gallons of amber? The Court will lean against such indictments, because (as rightly observed) they alter the course of the law, by making the prosecutor a witness. In Qu. and Macartney, indictment quashed, because no false tokens (7). In Qu. and (k) "The selling an unsound horse as and for a sound one is not indictable: the buyer should be more upon his guard;" Per Lord Mansfield, S. C. 2 Burr. 1128. An indictment will not lie for a deceitful warranty and representation of the soundness of a horse, without evidence of concert between the parties to effectuate a fraud; R. v. Pywell, 1 Stark. R. 402. (1) Reg. v. Macarty & Fordenbourgh, 2 Ld. Raym. 1179, 6 Mod. 301, Ca. temp. Holt, 300. They were indicted for bartering Portugal wine for hats, affirming that it was good wine, whereas, in fact, it was not drinkable or wholesome: but it appears from Ld. Raym. 1184, that judgment was given for the Crown. Lord Ellenborough, speaking of that case, said; "Was not that a case of conspiracy? At any rate the cheat was effected by means of bartering pretended port wine, which the indictment alleged was not wholesome or fit to drink and the vending of such an article for drinking is clearly indictable:" in R. v. Southeron, 6 East, 133: and see the observations in 2 East, P. C. 824. |