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Lewis

V.

1862. value into Court under the County Court Act, 19 & 20 Vict, c. 108, s. 72, in order to liberate the horse, the bailiff sold it under the execution, and paid the proceeds, 12/., into and Another Court, to abide the event of the interpleader summons, which was in favour of the plaintiff, and the money remained in Court; but had not been taken out. The value of the horse, however, was 291., and the bailiff had been in possession six days; and the plaintiff claimed to recover the value, and also compensation for the injury caused by the entry of the bailiff.

Wightman, J., ruled that the plaintiff could not recover in respect of the horse, since, under the County Court Act (passed in protection of the bailiffs), he could have liberated the horse by paying the value into Court to abide the event of the interpleader summons, and could now take the amount of the proceeds out of Court.

Chambers.—That is, take 121. out in satisfaction of a horse worth 29/. (a).

Wightman, J., said the law was so(b).

Chambers contended that, at all events, his client was entitled to recover compensation for the injury which must have been done to him in his business by the presence of two bailiffs on his premises for six days.

The learned Judge, in summing up the case to the jury, said the bailiff was placed in a position of difficulty; for he was bound to execute the warrant, and could not know whose the horses were; and, whether the premises were the plaintiff's or not, he would be bound to take any property on the premises which belonged to the execution debtor (a). As, however, the entry into the plaintiff's premises could only be justified by the result, and it turned out that the horse was his (and not the debtor's), the entry could not be justified, and it was for the jury what damage it had done to him.

(o) But the enactment provides was so. that the value is to be fixed by ap- (4) And the act provides a spc

pruisrtnenl in case of dispute; so cific and summary remedy in aid

that here, either the plaintiff" had of the claimant as well as of the

no appraisement, or it was false, or bailiff, his present evidence as to value

Verdict for the plaintiff, damages 10/. (b).

(a) If it h;.d not been for the enactment in the County Court Act the plaintiff could have recovered the full value of the horse; Lvckley v. Pye, 8 M. & W. 133.

(4) With leave to move to increase the verdict to the full value of the horse, less the sum paid into Court; and the learned Judge refused leave to move, except subject to that deduction. The plaintiff, it will be observed, could not have brought trover; for if he had not claimed, then his standing by would have concluded him ; and if he had, then the clause expressly provides

that the bailiff (unless n deposit is
paid) shall sell the goods as if no
such claim had been made. In no
way, therefore, can the claimant or
owner get more than the appraised
value, if he docs not elect to obtain
the chattel itself. As regards the
right of action in such a case, even
for the trespass to the premises, per-
haps it is doubtful whether it can be
maintained on the supposed dis-
tinction between the entry and the
Inking. See Carpenter v. Pearce,
27 L. J., Exch. 144, per Pollock,
C. B.

1862.

Lewis

9.

Cole and Another.

REGINA v. DAVIS.

-A-RSON. The prisoner was indicted in several counts: the first charging that he feloniously set fire to a certain shed in the occupation of the South-Eastern Railway Company. The second, that he set fire to a certain other shed in the occupation of one Lake. The third, that he set fire to certain goods of the company's, in a certain other shed in the occupation of the company. The fourth, that he set fire to certain goods of one Lake, in a certain other (a) shed in the occupation of the said Lake. The

Spring Assizes. 1862.

(a) This word " other" is put in civil suit the effect is, that when it

to avoid the objection of having appears that there is only one con

severul counts for the wine cause of tract and one house, each count

action or offence; Holjurd v. Dun- laying a distinct breach, each of

nett, 7 M. & VV. 348. But in a which would constitute a cause of

A prisoner
being charged
on several
counts with
setting fire to a
building de-
scribed as in
the occupation
of dilferent
persons, and
also with set-
ting fire to
goods in a
building so de-
scribed, the
prosecutor was
not put to
elect, as it
might be all
one act.

Reqina

V.

Davis.

fifth, that he set fire to certain goods of the company, in a certain other shed in the occupation of Lake.

Russell and Munsel Jones for the prosecution.

Francis for the defence.

When the prisoner was arraigned, before he was given in charge,

action (and both of which might have been laid in one count), the plaintiff can only recover damages as to one, because he has alleged that the other was as to a certain other house, and so cannot be allowed to ascribe it to the same; Ibid. The objection of duplicity is having different causes of action or offences in the same count or in the same indictment. Where they are not capable of joinder, there is a misjoinder. Where, in case of felony, there arc different felonies of the same nature on different persons, as robbing A. of money and B. of other money—all being part of the tame transaction—the proper course is to lay the offences in several counts; R. v. Giddins, Car. & Marsh. 634. The prisoner may object to duplicity on special demurrer, but it is doubtful whether he can do so on general demurrer. The Court in general will, upon application, quash the indictment, but it is doubtful whether it can be made the subject of an arrest of judgment or writ of error, and it is cured by a verdict of guilty as to one offence and not guilty as to the other (1 Rose. Crim. PI. 53—56). A defendant ought not to be charged with different felonies, offences arising out of different facts, in one indictment. It is in such cases the

proper course to apply to have the prosecutor put to elect. If the objection be made brj'ore plea, or before the jury are charged, the indictment may be quashed; if qf'terwurds, the prosecutor may be put to elect. But he will not be so if the offences appear to have been all part of one continuing transaction, as will be the case if they were all at or about the same time and place. The application for a prosecutor to elect is an application to the discretion of the Judge, founded on the supposition that the case extends to more than one charge, and may therefore be likely to embarrass the prisoner in his defence; Reg. v. Trueman, 8 Car. & P. 727, ErsKine. In a case of arson, the indictment contained five counts, each of which charged a firing of a house of a different owner. It was opened, that the five houses were in a row, and that one fire burnt them all. Upon this opening, the Judge would not put the prosecutor to elect, as it was all one transaction; Ibid. The Judge will not put the prosecutor to elect where it appears that the prisoner will not be prejudiced, that is, embarrassed by having to attend to different transactions. Vide R. v. Gough, 1 Moo. & Rob. 71.

Francis, for the prisoner, submitted that the prosecution were bound to elect, as there appeared in the indictment various distinct felonies, under different sections of the statute (a).

Wightman, J.—It does not appear that it is not all one and the same transaction; or, indeed, one and the same act. The prisoner may have set fire to goods in one shed, and so set fire to others. In that case it will be all one act.

The evidence was, that the prisoner wilfully set fire to some straw in a shed let by the company to one Lake, and that goods of his laid therein were burnt and the shed; but there was only one shed which was set fire to.

The prisoner was convicted, and sentenced
to four years' penal servitude.

(a) A person who sots fire to goods, if the Jire therefrom sets fire to a house, may be convicted on a count charging that he set fire to the house (R. v. Price, 9 C. & P. 729); and if the setting fire to the goods be wilful, and so primi facie malicious, to the owner, whoever he be, the setting fire to the house will be felonious; R. v. Lyons, 28 L. J., M. C. 33. There must be an intent laid to injure some one (R. v. Fletcher, 2 Car. & K. 215), but an intent to injure the owntr

would sustain such intent; and every one must be taken to intend the natural consequences of his act; R. v. Jones, 9 C. & P. 258. So held at the assizes, per Wiohtman, J., at Hertford, even in the case of an infant chnrged with arson, by setting fire to some straw in a barn. A count for stealing certain articles may not be joined with a count for receiving those and other articles, knowing them to have been stolen; R. v. Hard, Vol. II., p. 19.

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Surrey Spring Assizes. The laying down on a highway of iron flanges, as a tramway, may be a nuisance, if it obstructs to a substan

Kingslon, coram Erie, C. J.

THE QUEEN v. TRAIN And Others.

.INDICTMENT against one Train, and his foreman Hathaway, and also certain persons members of the vestry of St. Mary's, Lambeth, for obstructing a part of the highway, leading from Westminster Bridge towards Kennington. There were several counts, one of which laid the

tial degree the

ordinary use of charge to be, that the highway was made dangerous to

the highway,in .■ -.i ■ ,

any part of'it, *ne passengers with horses and carriages.

The indictment was really against Mr. Train, for laying down his iron tramways in the roadway.

M. Chambers, Hawkins, and Joyce were for the prosecution.

Sovill, Knapp and C. Pollock were for the defendant Train.

Lush, Ballantine, Serjt., and Garth were for the other defendants.

In November, 1860, a committee of the vestry recommended the vestry to adopt Mr. Train's proposal to lay down this tramway. The vestry having adopted the report and resolved to sanction the tramway, on the 13th of March, 1861, a contract was entered into between the vestry and Mr. Train, by which he was to complete the laying down of the tramway within three months, and he indemnified them against all indictments or actions for laying it down, and also against the expenses of removing and replacing it if he should be required so to do. The tramway was completed in September, 1861, and the trains In November, 1861, this indictment was

by horses and carriages. Whether it does so, is a question for the jury. That it causes accidents, and by fear of such accidents deters persons from using the highway, is evidence that it is a nuisance, however rarely the accidents may occur; temble, that questions of law may be reserved on an indictment. Entering into a contract with a public corporate body, to do the work which is the alleged nuisance, is evidence both as against the contractor and

the members of bec^an to run. such public =

body, at all found. The different defendants, members of the vestry,

events, coupled

with evidence of his presence during the progress of the work, and then signing resolutions in favour of the contract; semble, that questions of law may be reserved on an indictment for an obstruction to a highway, with leive to enter a verdict of guilty, (as it is a proceeding substantially civil,) and, at all events, the entry of the verdict may be svjpenJed until the next assizes, subject to points of law. And qiutre, whether there may not be, in such case, a bill of exceptions.

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