THE KING DELAVAL. torney, and a gentleman, to assign over a female apprentice by her own consent for the purpose of pros titution. father has fully justified himself, and appears to be an innocent and an injured man. In respect to the indenture of apprenticeship, it is so gross upon the face of it, that a Court of jusa master, an at- tice cannot but animadvert upon it. It is plainly calculated for [*440] the purpose of prostitution only. Though there are species of indecency and immorality, particularly in cases of incontinency, which are confined to the Ecclesiastical Courts, (and I am very glad they are so); yet the general inspection and superintendance of the morals of the people belongs to this Court, as custos morum of the nation. So laid down in Curl's Case (m), and before that, in Sir Charles Sedley's (n). Especially, when the offence is mixed with confederacy and conspiracy, as in the present case. Bates, the master, stands in the worst light of all; by taking the girl as his apprentice, he was loco parentis, yet he is privy to the fact of her living all the winter in a state of prostitution, and gives no intimation of it to her father. In February, indeed, he tells him she neglected her lessons, and had been riding in the Park with Sir Francis Delaval's servant. In April comes on the transaction now complained of; into which Bates readily enters without consulting the father, upon the single authority of a girl, whom he had reason to suspect, and who told him her father approved of it. He appears by his conduct, and from comparing the affidavits of the girl with his own, to have intended to favour her going to live with Sir Francis, though in his affidavit he has positively denied such intention. The next in degree of guilt is Fraine the attorney, whom I have formerly known in business to be a man of a fair character. But he has knowingly drawn this deed. And, if a gentleman of the profession will advisedly engage in such a thing, for such a purpose, the Court must animadvert upon it. Sir Francis Delaval has in the whole affair acted very ill, as well as very unwisely. His only plea is a very poor one, that the woman tempted him, and he complied from his regard to her. The rule for an information was made absolute against all three; Delaval, Fraine, and Bates (o). (m) 2 Stra. 788. (n) Sid. 168; 1 Keb. 620, S. C. See R. v. Crunden, 2 Camp. 89; and 4 Bla. Com. 64; 1 Hawk. P. C. c. 5, s. 4. (0) An information was granted for a conspiracy in soliciting a young lady to desert her father, and to commit whoredom and adultery with one of the defendants, who was her brother-in-law, and to live and cohabit with him; and the defendants were found guilty, though there was no evidence of force being used, and though it appeared that the young lady concurred; R. v. Lord Grey, 3 Harg. St. Trials, 519; 1 East, P. C. 460. So an information was granted for a conspiracy in inveigling a young woman, a ward of Chancery, of 16 years of age, from her guardian, and marrying her; though she voluntarily went to be married; R. v. Pierson, Lord Ossulston and Others, Andr. 310; 2 Stra. 1107; and the Court said, that the taking away a young woman under age, against the consent of her father, though it be without force, and with her own consent, is certainly punishable at common law; as appears by R. v. Twisleton, 1 Sid. 387, 1 Lev. 257, in which case there was no proof of any seducements, but common compliments among young people. See also an information for conspiracy to marry a young man, a minor, to a woman of ill name and of no fortune; alleging that the defendants by divers false allurements, did compel him to be drunk with strong waters and other liquors, and then introduced the woman into his company; R. v. Thorp, 5 Mod. 221, 1 Com. R. 27; R. v. Blacket, 7 Mod. 39, S. P. As to conspiracies, see R. v. Parsons, ante, 392; as to granting informations, see R. v. Kinnersley, ante, 294; R. v. Robinson, post, 541. SITTINGS AFTER TERM.-5 JULY, 1763.-LONDON. HOOPER v. SMITH. in favour of a tor, the same day on which commits an act he afterwards ONE Hooper, a tradesman in London, was indebted bond A trader may fide to his mother the plaintiff to the amount of 8007. His cir- lawfully assign cumstances declining, he (having previously discharged his part of his stock journeyman the Saturday before on pretence of going into an- particular credi other way of business) on Monday, 17 January, 1763, at eight o'clock in the morning, assigned to his mother a parcel of silks amounting in value to about half of his stock in trade, and made out a bill of parcels with a receipt and a discount as for prompt of bankruptcy. payment, as if sold to her in the ordinary course of business. These were conveyed the same morning in a hackney coach to the mother's lodgings at Hackney. In the evening he had a meeting with his principal creditors; when, upon examining his circumstances, it was agreed that he should immediately commit an act of bankruptcy by denying himself to one of them," which was accordingly done and a commission taken out. Afterwards the assignees under the commission got possession of these goods by a stratagem, and sold them for 3437. 11s. 6d. Upon which, Mrs. Hooper brought trover against the assignees. It was objected on the part of the defendants, that this was a fraudulent assignment under the colour of a sale, transacted in direct contemplation of Hooper's becoming a bankrupt, and therefore void. And it was compared to the Case of Compton and Bedford, Hil. Vac. 2 Geo. 3(p); and a more recent case, where an apothecary made over his effects to a chymist, his creditor, four days before he became a bankrupt, and the jury found it fraudulent and void. But by Lord MANSFIELD, C. J.--There is no arguing from general verdicts, unless all the circumstances could be minutely remembered. The rule of law is clear and established. If a man, not having previously committed any act of bankruptcy, in order to pay even a just debt, assigns all his effects to the creditor; or all but some colourable part; (which was the [*442 ] Case of Compton and Bedford)—or all, to several creditors, but in total exclusion of any one or more of them;-this in itself would make him a bankrupt; it would be the very act of bankruptcy (q). But a preference to one creditor, especially by * (p) Ante, 362. (q) A conveyance by deed of all the effects of a bankrupt under any circumstances was in itself an act of bankruptcy, under 1 Jac. 1, c. 15, s. 2, (previous to the passing 6 G. 4, c. 16), which enacts that "every person, who shall make any fraudulent .grant or conveyance of his lands, tenements, goods, or chattels, to the intent or whereby his creditors shall or may be defeated or delayed for the recovery of their just and true debts, shall be accounted and adjudged a bankrupt." See Worseley v. VOL. I. Demattos, 1 Burr. 467; Wilson v. Day, 2 Burr. 827; Hassels v. Simpson, 1 Doug. 89, n.; 1 Bro. C. C. 99, S. C. in Canc.; Butcher v. Easto, 1 Doug. 295; Dutton v. Morrison, 17 Ves. J. 193; Eckhardt v. Wilson, 8 T. R. 140; Tappenden v. Burgess, 4 East, 230; Newton v. Chantler, 7 East, 138; Kettle v. Hammond, 1 Co. B. L. 89; see also Edwards v. Harben, 2 T. R. 592. But a partial conveyance only of a trader's property, as observed by Lord Ellenborough in Newton v. Chantler, is open to a different consideration: under A A assigning only part of his goods, and to pay only part of the debt, has been frequently held to be good (r); particularly in Cock and Goodfellow (s) (the case of a parent and child), Small and Owdly (t), and others. Indeed, if a man makes over so much of his stock in trade, as to disable himself from being a trader, this would be fraudulent. It would be, as I said in Compton and Bedford, an assignment of his solvency. An assignment of all his household goods would be the same; for a man can't go on without them. But is half such a part of a man's stock as must necessarily have this effect? This would be going beyond any case that has yet been determined. Suppose, he had sold the goods in question to John or Thomas, and with that ready money had paid his mother part of her debt; would that sale or payment have been void? I also much doubt how far such an act of bankruptcy, committed by consent and agreement, is valid, with respect to a third person not privy to such agreement. Certainly the bank some circumstances it may constitute an # These cases are all prior in time to the 6 G. 4, c. 16, s. 3, which enacts, "that if any trader shall make or cause to be made, either within this realm or elsewhere, any fraudulent grant or conveyance of any of his lands, tenements, goods or chattels, or any fraudulent surrender of any of his copyhold lands or tenements, or any fraudulent gift, delivery or transfer of any of his goods or chattels," he shall be deemed to have committed an act of bankruptcy. (r) It may be questioned, whether this opinion, delivered only at Nisi Prius, can be considered as an authority. For, in Worseley v. Demattos, 1 Burr. 478, (decided before this case indeed, but where the cases of Cock v. Goodfellow, and Small v. Oudley are commented upon,) Lord Mansfield is reported to have said: "It has been argued, that after a resolution to commit an act of bankruptcy, the trader so resolving to become bankrupt, might lawfully prefer a just creditor by conveying part of his effects to satisfy that creditor's debt. It is not necessary to determine that question in this cause, for here the conveyance is of all: and therefore I will only say, that no such proposition is yet established; much less in the extent whereto it has been urged." It also seems contradicted by the Cases of Linton v. Bartlett, 3 Wils. 47; and Devon v. Watts, 1 Doug. 86: Morgan v. Horseman, 3 Taunt. 241; and Pulling v. Tucker, 4 Barn. & A. 382. Moreover, it does not appear, whether the jury found for the plaintiff on the ground of the assignment being valid, or on the ground of there having been only a concerted act of bankruptcy. (s) 10 Mod. 489, cited in 1 Burr. 478. (t) 2 P. Wms. 427, cited also in 1 Burr. 480: that case has been considerably shaken by that of Linton v. Bartlett, 3 Wils. 47, and see Lord Mansfield's observations upon it, Cowp. 123. rupt himself, and all those who come in under the commission, are concluded to say any thing against it (v). But the relation of a commission of bankrupt to the time of committing the act, though useful to prevent frauds, is sufficiently hard already upon private persons; and ought not to be extended farther. An act of bankruptcy in the eye of the law is considered as a crime; but where is the crime of denying oneself to another, by previous consent and agreement? (1) Bamford v. Baron, 2 T. R. 594, n. (a); Ex parte Bourne, 16 Ves. J. 145; Ex parte Gouthwaite, 1 Rose, B. C. 87; Ex Verdict for the plaintiff. parte Binmer, 1 Madd. 250; Back v. HOOPER . v. SMITH. MICH. TERM,-4 GEO. III. 1763.-K. B. THE KING V. The Minister and Churchwardens of ST. Bo TOLPH, Bishopsgate. [ 443 ] a brief refused. MORTON moved for an information against the Minister, &c. Information for who had collected upwards of 147. on a brief, for the sufferers embezzling moby fire at Alborne, in Wilts, and had spent about 91. at tavern ney collected on entertainments, and then returned upon the back of the brief, that 57. 3s. 44d. only was collected, and signed their names to such certificate. But the Court, Lord MANSFIELD, DENNISON, and WILMOT, denied a rule to shew cause, and referred the prosecutors to the ordinary remedy by indictment (a). (a) See the form of an indictment for a conspiracy to embezzle money collected by a brief, in Cro. Cir. Co. 136, (ed. 1811); and though an indictment will lie for such a conspiracy, quære, whether it will lie for BRERY qui tam v. LEVY. be compounded after conviction. INDICTMENT (6) on the Coal Act for selling short mea- A popular insure. Defendant was found guilty, after which, Wallace dictment not to moved for leave to compound with the prosecutor. But his motion was denied: for the king's moiety of the penalty is vested by the conviction, and then it is too late to compound (c). (b) This must be incorrect: it must have been a qui tam action, and not an indictment. (c) See Brown q. t. v. Bailey, 4 Burr. Hiring to work by the piece or gross, and five years' continu [444] ance upon that contract, no set tlement. TRINITY v. ST. PETER'S in Dorchester. JOHN Milwood, his wife, and three children were removed Norton, Solicitor-General, insisted, that here was no hiring for a year: and if this amounts to a settlement, all journeymen who work by the piece will equally be entitled to gain one. Thurlow and Dunning, contra, argued, that this was a hiring; and, being indefinite, must be construed a hiring for a year. Lord MANSFIELD, C. J.-Where there is not a hiring in express words, but the nature of the service implies a precedent hiring, the Court will go far to presume one. But this is exactly the case of every workman paid by the piece. And it is very clear, that there is no hiring for a year, either express or implied (d). (d) See R. v. Weyhill, ante, 206. So, where a pauper agreed to serve as a brickmaker from Michaelmas to Michaelmas, and to make 70,000 bricks at a certain price, he did not gain a settlement, on the ground that it was only a contract for that job, and not for a year's service absolutely; R. v. Woodhurst, 1 B. & A. 325. But where there is an express yearly hiring, or Confirm the orders. one can be inferred, it is no objection to gaining a settlement, that the pauper was to be paid by the piece; as where the pauper hired for a year to spin wick-yarn at 1s. 6d. a stone; R. v. King's Norton, Burr. S. C. 152; to work for a screwmaker,-good earn, good hire,—to make screws at so much a gross; R. v. Birmingham, 1 Doug. 333. Having no ef is not an objec SMITH V. SCANDRETT. ONE Gobel offered to justify as bail for 1600%. the debt fects in England sworn to; but it appearing, that though he had a fortune in tion to bail, with- Antigua, yet he had no effects in England, and had nine acout other suspi- tions depending against him for the amount of near 30007., the Court set him aside: but declared, that the merely having no effects in England was not of itself a sufficient objection, with cious circum. stances. |