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Thekinq a half guinea. It appeared in evidence, that he had counterfeited Varley *ne imPress'on °f a nau?guinea on a piece of gold, which was previously hammered, and was not round, nor would pass in the con

regular piece of dition it then was. This, with many others, he delivered to one metal, without James Green, who carried them away, and what became of them tomake It'cur-* afterwards could not be proved. Gould, J., who tried the prirent, u an in- soner, doubting whether this was high treason, respited the complete crime, judgment, and laid the case before all the Judges, who (absente treason! 8 Baron Adams), were unanimously of opinion, that the crime

was incomplete, and that he should be recommended to his

Majesty for a pardon (a).

(a) S. P. Harris's Ca., 1 Leach, 135; wear, is a counterfeiting; Wilson's Ca., 1

see also 1 H. H. P. C. 213. Making a Leach, 285; Welsh's Ca., Id. 364—Russ.

round blank, similar to a shilling, the im- Cr. & Misd. 80. See post, 807, 822. pression on which has been effaced by

[ *683 ] The King V. James Donnevan.

S. C. 2 East, P. C. 1020; 1 Leach, 69.

is "house1 with prisoner was indicted, found guilty, and condemned at

in theTutute last Lancaster Assizes, on the statute 9 Geo. 1, c. 22(b), for

against arson.

(b) S. I; by which it is enacted (inter alia), "that if any person shall set fire to any house, barn, or out-house, or to any hovel, cock, mow, or stack of com, straw, hay, or wood, &c. he shall suffer death." The mere setting fire to, if by accident or timely prevention the fire does not take, and no part be burnt, does not come within the statute; Taylor's Ca., 1 Leach, 49: neither is it arson at common law; 3 Inst. 66; 1 Hale H. P. C. 568; 1 Hawk. P. C. c. 39, s. 4. Setting fire to a parcel of unthreshed wheat is not within the statute; Judd's Ca., 2 T. R. 255. As to what shall be considered an out-house, see North's Ca., 2 East's P. C. 1021. A school-room may be described either as an out-house, or part of the dwelling-house; Winter's Ca., Russ. Cr.&M. 1673; see also Hties v. Hundred of Shrewsbury, 3 East, 457. Where an indictment was drawn on 22 8c 23 C. 2, c. 7, but the offence proved only came within 9 G. 1, it was held that the conviction was proper, and that the latter statute extends to all barns of other persons, having hay or corn in them, or being empty; and whether burnt in the day or night-time; Minion's Ca., 2 East's P. C. 1021.

A prisoner was indicted for setting fire to a hovel. It appeared in evidence, that it was a building in a field, apart from any house or bam, having three stone walls, being open on the fourth side, and covered with sticks, furze (or winns), and straw. In arrest of judgment it was contended, that the stat. 9 G. 1 contemplated a hovel of com, straw, hay, or wood. To this it was objected, that the Mat 22 & 23 C. 2, c. 7, s. 2, makes

burning in the night-time " ricks or stacks of corn, hay, or grain, barns, or other houses or buildings, or kilns," felony: That the stat. 9 G. 1 introduces words extending the provisions of the former act, which mentions ricks or stacks of corn, &c, and then barns, or other houses or buildings, generally: That the construction contended for would suppose a hovel of wood. Holroyd, J.—" I think this indictment cannot be supported: it is under 9 G. I, the words of which are, 'if any person shall set fire to any house, bam, or outhouse, or to any hovel, cock, mow, or stack of corn, straw, hay, or wood.' 'Or to any hovel,' &c. is a distinct branch of the sentence. In its present acceptation, hovel is a shed put up in a field for sheltering cattle or utensils, but we must consider what was the meaning at the time of passing the act. Grammatically, 'corn, straw, hay, or wood,' apply equally to hovel as to cock, mow, or stack; and if there is any doubt or uncertainty, it must be exercised in favour of a prisoner. Hovel is from the word 1 to heave.' In Essex, wheat-hovel means wheat raised from the ground to keep it from rats and mice: hovel may be capable of a construction which supposes a hovel of wood; but that question does not now arise. The use of the word wheathovel shews there may be such a thing as a corn-hovel: whence it appears what the Legislature meant. Burning empty bams was not arson before the statutes (unless part of the mansion-house): burning barns containing corn or hay, was (3 Inst 67; Barham's Ca., 4 Rep. 20 a; 1 Hawk. P. C. maliciously setting fire to the common gaol, in which he was the Klr,G confined at Liverpool for debt. It was laid in the first count— Donnevan to be the house of the Corporation of Liverpool, called the common gaol: 2d—Of the Mayor and Bailiffs of Liverpool, called the common gaol: 3d—Of Anna Hornby: 4th—Of Richard Rigby. *It appeared, that the gaol belongs to the [ * 683 ] Corporation of Liverpool; that Rigby is the keeper; that the keeper's dwelling-house adjoins thereto, wherein Rigby lived; that Hannah Hornby his mother lived with him, and kept it as a public-house. That the entrance to the prison is through the dwelling-house: That the prisoners are sometimes allowed to he in the dwelling-house: That the prisoner Donnevan lay in the prison, and voluntarily set fire to the same, whereby all the prisoners narrowly escaped with their lives.

Gould, J., who tried him, reported the case to all the Judges; who {absente Adams, B.), were of opinion, that this case was fully within the act, the dwelling-house being to be considered as a part of the prison, and the whole prison being the house of the Corporation (c).

c 39, s. 1);" Ecclesfield's Ca., York Sum- (c) The question as to what shall be
mer Assizes, 1821, MS.—See Russ. Cr. & considered a dwelling-house and who the
M. 1665, et seq. It is no answer to an in- occupier, has arisen more frequently upon
dictment on the stat. 9 Q. I, c 22, for the subject of rating tenements under the
setting lire to a hay-stack, that the pri- statutes relating to the support of the poor;
soner had no malice against the owner; as to which see It. v. Eyles, Cald. 407,
and it is not necessary to aver that the 1 Bott, 160; and R. v. St. Luke'; ante,
stack was thereby burnt; R. v. Salmon, 249, and cases there referred to.
Russell & Ry. C. C. R. 26.

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Hart V. Weston.

S. C. 5 Burr. 2586.

Debt on a bail-bond. Plaintiff sets forth that the latitat against the principal was prosecuted out of the King's Bench, JJJ3^{°M,. the 23d day of February, 1769: and then the rest of the pro- 0ruaryU(though ceedings in order, and declares for 311., the penalty of the out of Term) it bond, as assignee of the sheriff of Cornwall. The defendant noting»»Impleads, that he does not owe the said 371., or any part thereof, though the usual To which the plaintiff demurs, and the defendant joins in de- course is to almurrer. And now, on this general demurrer, it was objected Ie8"ti't0^* *"ed by Mansfield for the defendant, that the writ could not be sued °" llie the out the 23d February, 1769, there being no such day in Term: day on which it and relied upon Estwick against Cooke, Lord Raym. 1557, beari tcste Wwhere a declaration, that a writ was prosecuted 18th July, "Curid apud Westm. adtunc tentd existente," when 18 July happened in the long vacation, was held to be bad. But in the present case the Court held, that the writ might in fact be sued out 23d February, though tested the 12th, and that therefore there was not the same impossibility here as in the case

(if) The safer course, in replying a it out, to prevent a special replication similar writ to avoid a tender or the statute of li- to that in Wood v. Newton, 1 Wils. 141: notations, is to aver the actual day of suing sec also 2 Wms. Saund. 1 c. in notis.

Hart P.


from Lord Raymond; for the Court could not be sitting at Westminster in the long vacation.

Judgment for the plaintiff(e).

(«) S. P. Walburgh v. Salstonstal, T. Jon. 149, 1 Ventr. 362, S. C: cited also in Johnson v. Smith, ante, 217. So where to a plea of the statute of limitations, the plaintiff replied, "that within six years, &c, to wit, on the 8th of August, 1805, he sued out of the Court of K. B. a certain precept called a bill of Middlesex, &c," it was decided, that the Court would take notice In pleading of the issuing of the bill of Middlesex on a day in Tacation, though it be not pleaded to have been issued " as of the preceding Term." Bayley, J.—" Was it not decided in Hart v. Weston, that it might be shewn in pleading that the writ, though tested as of the preceding Term, issued on a certain day in vacation? In Estwick v. Cooke the allegation was, that it issued on a day in the vacation, ' the said Court then being held at W.;' which was incongruous;" Harrington v. Taylor, 15 East, 378. Indeed, in the case of Green v. Jones, 1 Wms. Saund. 295, where the plea stated, "that on the 25th day of September, at the parish of St. Clement's, before the same Lord the King, in the Court of our said Lord the King (the same Court being at W., in the county of Middlesex), one W. W. sued

out a bill of Middlesex,"—the reporter observes (p. 299 b), that one fault of the plea was, that the defendant alleged that W. had prosecuted the bill of Middlesex out of K. B. on the 25th September, where? as it judicially appears, that the Court was not open or sitting upon that day.— Mr. Serj. Williams (p. 300 b, edit 1809) also thinks that this was a fatal objection, and goes on to say, that in Hart v. Western the Court seemed inclined to overrule this objeclion, but took a distinction between that case and Estwick v. Cooke; and that the subsequent cases shew, that the Courts still hold this objection to be a valid one. But in the late case of Luckett v. Plummer, in C. P., 2 Brod. & B. 659, where the declaration stated that the plaintiff " heretofore, to wit, on the 21st day of July, sued out of the Court of our Lord the King of the Bench here, the said Court being then and now at W., &c;" the Court thought that the time being stated under a videlicet was immaterial, and might be rejected as surplusage, and that it was sufficient if it appeared in substance that the writ was issued out of the Court. S. C. 5 B. Mo. 538. See also Leadbeter v. Markland, pott, 1131.

[ 684 ] Nightingall and Others, Assignees of Mettivier,

v. Devisme.

S. C. 5 Burr. 2589.

Stock in the In assumpsit for 2000/., and non assumpsit pleaded; verdict notbDef"uedfor" for Plaintiff for H70/., subject to the opinion of the Court on this case: Mettivier became bankrupt 12th April, 1769, and a commission issued, and the plaintiffs are his assignees. 17 April, Mettivier transferred to the defendant 500/. East India stock, which the defendant had transferred to Mettivier on the 5 October, 1768, in consideration of a note for 1370/., in order (as Devisme, on his examination before the commissioners, acknowledged) to qualify him to vote for directors, in such manner as he could depend on. No application was made to Mettivier for a re-transfer till 17th April, and after such re-transfer was made, Devisme told him he might call for the note at his house; but Mettivier did not call for it, and the same now remains in the custody of Devisme. No consideration was paid to Mettivier at the time of this re-transfer. N. B. The declaration contained three counts: 1. For 2000/. lent and advanced; 2. For 2000/. had and received to plaintiff's use; 3. For 2000/. paid and laid out by plaintiff's assignees for defendant's use. The Court thought, that this declaration was not properly framed; because stock cannot be considered as money (f): Niohtinoall That a special declaration might be framed, so as to meet this _ •• case, but in what manner they could give no directions. But ■ that, as the present declaration was framed, there must be

Judgment of nonsuit.

( / ) So an agreement Co pay a per- bank-notes against a party, who has treat

centage on all money received through A.'s ed them as money; Pickard v. Banks, 13

means, does not entitle him to receive the East, 20. See also Wookey v. Pole, 4 B.

per-centage on a transfer of stuck obtained & A. 1, and as to the action for money had

by him; Junes v. Brinley, 1 East, 1. But and received, see Motet v. Macferlan, ante,

money had and received will lie for country 219.

The King P. The Inhabitants of the West Riding of York- [ 685 ]

S. C. 5 Burr. 2594.

Indictment for not repairing a certain public bridge, County is bound
called Glusbume Bridge. The defendants pleaded, that there j"^^8 nDw
was an ancient foot-bridge over Glusburne brook, which, on aprivate penJn,
1st December, 1744, the inhabitants of Glusburne took down, if it be of public
and in lieu and stead thereof, and in the place where the foot- nfflity-
bridge stood, they erected the bridge in question for horses,
carriages, &c.; that the inhabitants of Glusburne had imme-
moriafly used to repair the said foot-bridge, and from the time
of erecting the new bridge, had repaired and ought to repair
the same; and traversed (g) the right of the inhabitants of the
Riding to repair: on which traverse issue was joined.

On the trial, at last York Assizes, before Mr. Justice Gould, the following case was stated:—That there was an ancient foot-bridge over Glusburne brook, and a ford for horses, and another for carriages; and that the inhabitants of Glusburne always repaired the said bridge. That, in 1743, on an application to the Quarter Sessions of the West Riding of Yorkshire by the inhabitants of Glusburne, it was ordered by the Court, 11th January, 1743, that the treasurer should advance 10/. out of the county stock, as a gratuity, to enable the said inhabitants to build a new bridge over Glusburne ford. 10th July, 1744, the said order was renewed, with a proviso that nothing therein should extend to charge the inhabitants of the

(g) It seems such a traverse is bad: "for it is a traverse of matter of law, and such traverse, though very often inserted, is demurrable to, and ought therefore to be omitted;" note to R. v. Stoughlon, 2 Wms. Saund. 159 b; S. P. Betmet v. Filkint, 1 Wms. Saund. 23, n. (5); per Buller, }., in R. v. Lyme Regit, 1 Doug. 154; Grills v. Mamult, W'illes, 378; Stark. Crim. PI. 712, n. (I), (ed. 1814). Or the plaintiff may pass it by in his replication, and only traverse the prescription; Richardson v. Mayor of Oxford, 2 H. Bl. 182. A plea concluding with a similar traverse was de

murred to, and that objection taken; but
the Court gave judgment for the Crown
without noticing it; R. v. St. Giles, 5 M. &
S. 260. But in a more recent case, where
a plea by a parish, that the inhabitants of
a certain district were liable, concluded,
"and that the inhabitants of the said pa-
"rish at large ought not to be charged,
"Ice.," the Court said, "that certainly
this was a sufficient traverse, if any tra-
verse was required;" R. v. Ecclesfield, 1 B.
* A. 348. And see Grocers' Comp. v. Abp.
of Canterbury, post, 776.

The King Riding with the repairs of the said bridge; which sum was accordingly paid. That the inhabitants of Glusburne built a Yorkshire?' bridge for carts, carriages, and horses and foot passengers, and

v 'pulled down the ancient foot-bridge, and sold the materials.

That the new bridge was of public utility, and used constantly [ *686 ] till 1767, when it was carried away by a flood (A). *That the ancient foot-bridge stood sixty yards below the new bridge, in the same highway. That the said road was made a turnpike road in 1755; and about 1766, the commissioners laid out 6s. in the repair of said bridge (i). Whereupon the defendants were found guilty, subject to the opinion of the Court on this question, Whether the inhabitants of the West Riding are obliged to rebuild the said new bridge?

Mr. Wainman, for the prosecutors, argued, that the bridge being of public utility, though erected by private contribution, the Riding was bound to maintain it; and cited Roll. Abr. 368; 2 Inst. 701; 13 Rep. 33; 1 Salk. 359, Queen and Wilts. And that a clause was inserted in 9 Geo. 2, c. 29, to prevent Westminster-bridge from being a county bridge, as it otherwise would have been.

Mr. Lee, for the defendants, insisted, that neither common law nor the statute Hen. S(k) extend to the case of persons who voluntarily erect a bridge within time of memory. That Magna Charta, c. 15, is express against the erecting of new bridges. That according to Lord Coke's comment thereon in 2 Inst. (/), it is necessary to have a special presentment that it does not appear who are bound to repair, before the county or riding can be charged. That the report of the Queen and Wilts, in 6 Mod. (m), differs from that in Salkeld. And he cited 1 Roll. Abr. 368; where a man makes a bridge to a mill, it ought to be repaired by him that made it, because it is for his own private advantage (n).

But Aston, Willes, and Blackstone, Js. (absente Lord Mansfield, C. J.), were of opinion, that where a private person or persons erect a bridge that is of public utility, the public (that is, the county or riding) are bound to keep it in repair. That Magna Charta only extends to prevent the subject from

(A) See R. v. Inh. of Bucks, 12 East, 192. where a miller, forty-five years before, had

(t) See R. T. West Riding, 2 East, 342, erected a dam, and thereby deepened the

where it was held, that a bridge built before waters of a ford, and afterwards built a

43 G. 3, in a turnpike road by the trustees, bridge over it, which was beneficial to the

must be repaired by the county, and not by public, the county, and not the miller,

the trustees. S. P. R. v. Inh. of Oxfords., were bound to repair it. So where A. had

4 B. & C. 196, 6 Dowl. & Ryl. 231. erected a bridge for his private benefit and

(ft) 22 H. 8, c. 5, commonly called the utility, and for making a commodious way

Statute of Bridges. to his tin-works, the business of which

(I) Pa. 697, et seq. could not be carried on without it; but it

(>a) Pa. 307. also appeared, that the public had con

(n) Lord Rolle says, it was so adjudged stantly used the bridge since its erection,

in Bowbridge Channelbridgc v. Prior of for about forty-three yean; it was held,

Stratford, 8 Ed. 2, B. R.: but that case that the county were bound to repair; R.

was determined on quite different grounds: v. Inhab. of Glamorgan, 2 East, 356 n. (a),

see Lord Ellenborough's observations on it 1 Bac. Abr. Bridges, 535, S. C.; S. P. R.

in R. v. Inh. of Kent, 2 M. & S. 519, and v. Inhab. of Bucks, 12 East, 192; but see

the record at length, Ibid. 520, n. (a). In R. v. St. Benedict, 4 B. & A. 447. These

the case in 2 M. & S. 513, it was held, that bridges were built before 43 G. 3.

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