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1862.

LEWIS

Cole and Another.

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, 121., into 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 291. (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

(a) But the enactment provides that the value is to be fired by appruisement in case of dispute; so that here, either the plaintiff had no appraisement, or it was false, or his present evidence as to value

was so.

(6) And the act provides a specific and summary remedy in aid of the claimant as well as of the bailiff.

LEWIS

debtor (a). As, however, the entry into the plaintiff's pre 1862. mises could only be justified by the result, and it turned out that the horse was his (and not the debtor's), the entry

COLE could not be justified, and it was for the jury what damage and Another. it had done to him.

Verdict for the plaintiff, damages 101.(6). (a) If it had not been for the that the bailiff (unless a deposit is enactment in the County Court Act paid) shull sell the goods as if no the plaintiff could have recovered such claim had been made. In no the full value of the horse; Lockley way, therefore, can the claimant or v. Pye, 8 M. & W. 133.

owner get more than the appraised (6) With leave to move to in value, if he does not elect to obtain crease the verdict to the full value the chattel itself. As regards the of the horse, less the sum paid into right of action in such a case, even Court; and the learned Judge re- for the trespass to the premises, perfused leave to move, except subject haps it is doubtful whether it can be to that deduction. The plaintiff, maintained on the supposed disit will be observed, could not have tinction between the entry and the brought trover; for if he had not taking. See Carpenter v. Pearce, claimed, then his standing by would 27 L. J., Exch. 144, per Pollock, have concluded him ; and if he had, C. B. then the clause expressly provides

REGINA v. DAVIS.

Spring Assizes. ARSON. The prisoner was indicted in several counts : A prisoner the first charging that he feloniously set fire to a certain bein

" on several shed in the occupation of the South-Eastern Railway counts with

setting fire to a Company. The second, that he set fire to a certain other building deshed in the occupation of one Lake.

1. scribed as in

The third, that he the occupation set fire to certain goods of the company's, in a certain of different

persons, and other shed in the occupation of the company. The fourth, also with set

ting fire to that he set fire to certain goods of one Lake, in a certain other (a) shed in the occupation of the said Lake. The

in La T building so de

The scribed, the

prosecutor was (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- elect, as it several counts for the same cause of tract and one house, each count might be all action or offence; Holford v. Dun- laying a distinct breach, each of nelt, 7 M. & W. 348. But in a which would constitute a cause of

na

SUL

Cuct, wat we

not put to

act.

1862.

REGINA

DAVIS.

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

Russell and Mansel 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 al. lowed 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 are different felonies of the same nature on different persons, as robbing A. of money and B. of other money-all being part of the same 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 indictinent, 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 Rosc. Crim. Pl. 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 before plea, or before the jury are charged, the indictment may be quashed; if afterwurds, 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.

1862.

REGINA

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

DAVIS.

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 sets fire to goods, if the fire 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 prima 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 owner

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 WIGHTMAN, J., at Hertford, even in the case of an infant charged 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. Ward, Vol. II., p. 19.

tram be

nuisance,

1862.

Kingston, coram Erle, C. J. Surrey

THE QUEEN v. TRAIN AND OTHERS. Spring Assizes. The laying... INDICTMENT against one Train, and bis foreman down on a highway of iron Hathaway, and also certain persons members of the vestry flanges, as a way, may of St. Mary's, Lambeth, for obstructing a part of the

highway, leading from Westminster Bridge towards Kenif it obstructs " to a substan- nington. 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 any part of it," the passengers with horses and carriages. by horses and The indictment was really against Mr. Train, for laying carriages. Whether it down his iron tramways in the roadway. does so, is a question for the M. Chambers, Hawkins, and Joyce were for the prosejury. That it causes acci- cution. dents, and by fear of such Bovill, Knapp and C. Pollock were for the defendant accidents de ters persons Train. from using the highway, is

Lush, Ballantine, Serjt., and Garth were for the other evidence that it defendants. is a nuisance, however rarely In November, 1860, a committee of the vestry recomthe accidents may occur; mended the vestry to adopt Mr. Train's proposal to lay semble, that

down this tramway. questions of

The vestry having adopted the law may be

report and resolved to sanction the tramway, on the 13th reserved on an " indictment of March, 1861, a contract was entered into between the Entering into a contract with vestry and Mr. Train, by which he was to complete the porate body, to

to laying down of the tramway within three months, and he do the work indemnified them against all indictments or actions for which is the alleged nui- laying it down, and also against the expenses of removing sance, is evidence both and replacing it if he should be required so to do. The contractor and

then tramway was completed in September, 1861, and the trains the members of began to run. In November, 1861, this indictment was 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 leave to enter a verdict of guilty, (as it is a proceeding substantially civil,) and, at all events, the entry of the verdict may be suspended until the next assizes, subject to points of law. And quære, whether there may not be, in such case, a bill of exeeptions.

as against the name

and

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