NORTHERN CIRCUIT. Coram Keating, J. REGINA v. MARSH. 1862. York Winter WILLIAM MARSH was indicted for stealing 201. from Unenrolled Thomas Webster and others, his masters, at Sheffield, ou dishonest ap the 14th of October last. Hannay appeared for the prosecution. benefit club, propriation of funds by a member. A member of two unenrolled benefit clubs, paid as secre tary and in trusted with deposit in the funds to the bank, in the treasurer, sums intrusted to him, cannot be found guilty of larceny as a servant, nor It appeared that two sick clubs were held at West Street Tavern, Sheffield, kept by Thomas Webster, one called the "Ram" and the other the "Industry," to which the members paid small sums weekly, and were entitled to a weekly the joint names allowance in case of sickness. Webster was a member of himself and and treasurer of both these clubs, and the prisoner was dishonestly appropriating also a member and secretary of both. The prisoner was to himself the paid about 31. a year salary for his services. When a considerable sum was collected the treasurer handed it over to the prisoner, as secretary, who, accompanied by three committee-men, took it to the bank, where it was invested on deposit-note in the names of the treasurer and secretary for larceny as a the time being. This deposit-note was then taken next club night and placed in the club box. On the 14th of October the prisoner went to Webster and said the committee were going to meet him to take the money to the bank. None of the committee came, and after some time Webster handed over to the prisoner 157. on account of the Ram Club, and 51. on account of the Industry. The next club night was the 18th, but on that night the keys of the of embezzle ment, nor of bailee. 1862. REGINA v. MARSH. club box could not be found. The club night after that was the 27th of October, when the prisoner did not appear, and the receipts for the 20l. were not forthcoming. The prisoner having left his residence a warrant was taken out against him, and he was traced to Liverpool, where he was found on board a vessel about to sail for America, and on searching him a receipt for 3l. 5s., his passage money, was found upon him, 77. in gold, and 7s. 6d. in silver. It appeared that he had never paid the money into the bank. Campbell Foster, for the prisoner, submitted that no case had been made out against him. First, the facts proved did not constitute the offence of larceny in the prisoner. He was a partner in the fund taken, equally interested with Webster and the other members; and the possession of the money had been parted with to him voluntarily. He did not take the money against the will of Webster; it had been intrusted to him to invest in his own name and that of Webster, and Webster no longer had possession of the money in the prisoner's hands as his servant; but the prisoner had a right to the possession of the money. In Roscoe's Criminal Evidence (a) the rule as to partners was thus laid down: "In general a party having a right of property in goods, and also a right to the possession, cannot be guilty of larceny with respect to such goods. Tenants in common, therefore, and joint tenants cannot be guilty of stealing their common goods." Here the money of the two clubs was the common property of the members, of whom the prisoner was one; he had a right of property in it, and he had also a right to the possession of it. In Reg. v. Loose (b), where 407., the money of a friendly society vested in trustees, of whom the prisoner was one, and who was appointed by the Society to take the money to the bank, but who, instead of doing so, dishonestly applied it (a) P. 626, referring to 1 Hale's (b) 29 L. J., M. C. 633. P. C. 513; 2 East's P. C. 558. to his own purposes, it was held that the prisoner could not be found guilty of larceny. In this present case the money was the property of the members of the clubs, they not being enrolled, of whom the prisoner was one, and specially intrusted to take it to the bank. In principle and in law the two cases were the same. As under the Larceny Act the prisoner might be convicted of embezzlement on this indictment if the facts would warrant such a conviction (a). He submitted that the facts did not in law constitute the offence of embezzlement. The prisoner had not received the money from a third party for and on account of Webster and others, his masters by virtue of his employment, but he had received the money from Webster himself, on account of himself and Webster. Neither was this larceny by the prisoner as a bailee under the Larceny Act (b), as the money received by the prisoner was to be deposited by him in the bank, and was not to be returned by him in specie. Reg. v. Hassell (c) was an authority in point as to this. Hannay, for the prosecution, conceded that he could not substantiate a charge of embezzlement on these facts, nor of larceny by the prisoner as a bailee, but submitted on the authority of Regina v. M'Donald (d) that the prisoner was guilty of larceny as a servant. His LORDSHIP was of opinion that the objection was fatal. Webster had parted with the possession of the money absolutely, and it was clear he did not intend to retain any power over it. Webster had therefore no possession of the money while in the prisoner's hands as his servant. The offence of larceny by the prisoner, as the servant of Webster and others, was not therefore made (a) See sect. 72. (b) See sect. 3 of 24 & 25 Vict. c. 96, which enacts, "that a bailee may be convicted on an indictment for larceny." (c) 30 L. J., M. C. 175. 1862. REGINA v. MARSH. 526 1862. REGINA v. MARSH. CASES ON THE NORTHERN CIRCUIT. out; and in principle he could see no distinction between this case and the case of Regina v. Loose referred to. His Lordship thereupon directed an acquittal. York Summer Assizes. Coram Mellor, J. REGINA v. JOHN DAY. The Court will STEPHENSON (with whom was Shaw) made an not grant an to remove a prisoner from gaol, where he is undergoing application for application to MELLOR, J., for a writ of habeas corpus to a habeas corpus remove John Day from Knutsford Gaol to Huddersfield to be examined before the magistrate there on a charge of felony. The Judge took time to consider, and on a renewal of the application refused it, saying that, after consulting with WILDE, B., he was not certain whether he had another county, even the power to grant it, and certainly did not wish to set a bad precedent. sentence, in order to take him before a magistrate in to prefer ano ther charge against him; but will grant An indictment was afterwards preferred before the grand to bring him jury against John Day, and a true bill found. a habeas corpus up for trial on a true bill being found against him at the assizes on that charge. Shaw then made an application to the Judge, saying that he now applied under different circumstances for a writ of habeas corpus to remove John Day from Knutsford to York, to be tried on the indictment found against him by the grand jury. The learned JUDGE granted the application. Court of Queen's Bench, Westminster, coram Cockburn, C. J. AND OTHERS. 1863. Middlesex In an action against a late ACTION against Viscount Combermere, the Earl of The first count of the declaration stated, that while the plaintiff was Lieutenant-Colonel of the 2nd Tower Hamlets Regiment of Militia, and while the Earl of Combermere was Lord Lieutenant of the Tower Hamlets, and while General Peel was Secretary for War, they, the defendants, together with divers other persons, intending to injure the tenant (Commandant of the Militia of the district) and the Colonel of a regiment of Militia, for causing, by means of false charges, the removal of the plaintiff from the office of Lieutenant-Colonel of the regiment: the first count being for a conspiracy to cause his removal, and making such charges in pursuance of the conspiracy; and the second for making such charges, maliciously and without reasonable or probable cause; it appeared that charges, chiefly of neglect, based on a report of a Regimental Board, had been sent by the Colonel to the plaintiff, in writing, for the purpose of being answered by him, and that the charges, and his written answers,-in effect admitting a certain amount of neglect of military duty-were, with all the papers he appended thereto, sent by the Colonel-in-Chief to the Commandant, who first saw the Colonel, and then the plaintiff, upon the subject, and heard their statements and counter-statements; and afterwards, and at the instance of the Colonel, and after both of them had applied to, and had an interview with, the Secretary at War, with a view to the plaintiff's removal, sent to the Secretary of War a formal list of charges drawn up by the Colonel, and including some which were new and of a graver character, and as to which there had been no inquiry; but which, with the others, had been sent to the plaintiff for his answers, and were sent, with his answers in writing and the Secretary of State thereupon, after perusing the charges and written answers, without further inquiry declared that the plaintiff must be desired to resign; and afterwards, on remonstrance, appointed a military board of inquiry, before whom the plaintiff was fully heard, but against whose conduct of the inquiry certain complaints were made by the plaintiff; and ultimately, after their report, directed the dismissal of the plaintiff upon the charges of neglect, as admitted upon his own statements. Held, 1. That as there was a discretionary power of removal vested in the Crown, there was no necessity for any judicial inquiry. 2. That the action could not be maintained against the Secretary of State unless he had acted dishonestly; of which there was no evidence, and that, therefore, there was no case as against him; and quare, whether he would be liable to any action in such a case. 3. That any irregularities in the conduct of the inquiry would not be evidence even against him, unless he were shown to have been aware of and to have sanctioned them : nor unless they amounted to a wilful and substantial denial of justice. 4. That to sustain a verdict for the plaintiff upon the first count, both the other two defendants must be convicted, as it charged, in substance, a conspiracy; but, on the other count, either might be convicted. 5. That assuming the charges, (or those of them on which the plaintiff was really dismissed) were founded upon facts, as they appeared, or were represented, to the Colonel, there was reasonable ground for preferring them. 6. That if the Commandant acted honestly on the representation made to him by the Colonel, he was not liable. 7. That, therefore, on either count, the question for the jury, in substance, was, whether the defendants acted honestly and bonâ fide; or without any belief in the truth of the charges, and from a bad and improper motive. Quare, whether the two counts could be joined, or whether, if so, any evidence would be admissible which was not admissible as against all the defendants whose names were retained on the record? F.F. VOL. III. |