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a half guinea. It appeared in evidence, that he had counterfeited

the impression of a half guinea on a piece of gold, which was preVARLEY.

viously hammered, and was not round, nor would pass in the conregular 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 finishing it, so as afterwards could not be proved. Gould, J., who tried the prirept, is an in soner, doubting whether this was high treason, respited the cumplete crime, judgment, and laid the case before all the Judges, who (absente and not high

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; see also I H. H. P. C. 215. Making a round blank, similar to a shilling, the impression on which has been effaced by


is a counterfeiting; Wilson's Ca., 1 Leach, 285; Welsh's Ca., Id. 364-Russ. Cr. & Misd. 80. See post, 807, 822.

[ *683 ]


S. C. 2 East, P. C. 1020; 1 Leach, 69. A common gaol THE prisoner was indicted, found guilty, and condemned at is a house with- last Lancaster Assizes, on the statute 9 Geo. 1, c. 22 (b), for

against arson,

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(6) s. 1; by which it is enacted (inter burning in the night-time “ ricks or stacks alia), “ that if any person shall set fire to of corn, hay, or grain, barns, or other any house, barn, or out-house, or to any houses or buildings, or kilns," felony: hovel, cock, mow, or stack of corn, straw, That the stat. 9 G. I introduces words exhay, or wood, &c. he shall suffer death." tending the provisions of the former act, The mere setting fire to, if by accident or which mentions ricks or stacks of corn, &c., timely prevention the fire does not take, and then barns, or other houses or buildand no part be burnt, does not come with ings, generally: That the construction conin the statute; Taylor's Ca., 1 Leach, 49: tended for would suppose a hovel of wood. neither is it arson at common law; 3 Inst. Holroyd, J.-“ I think this indictment 66; 1 Hale H. P. C. 568; 1 Hawk. P. C. cannot be supported : it is under 9 G. I, c. 39, s. 4. Setting fire to a parcel of un the words of which are, “if any person threshed wheat is not within the statute; shall set fire to any house, barn, or outJudd's Ca., 2 T. R. 255. As to what shall house, or to any hovel, cock, mow, or stack be considered an out-house, see North's Ca., of corn, straw, hay, or wood.' Or to any 2 East's P. C. 1021. A school-room may be hovel,' &c. is a distinct branch of the sendescribed either as an out-house, or part of tence. In its present acceptation, hovel is the dwelling-house; Winter's Ca., Russ. a shed put up in a field for sheltering cattle Cr. & M. 1673; see also Hiles v. Hundred of or utensils, but we must consider what was Shrewsbury, 3 East, 457. Where an indict the meaning at the time of passing the ment was drawn on 22 & 23 C. 2, c. 7, but act. Grammatically, 'corn, straw, hay, the offence proved only came within 9 G. 1, or wood,' apply equally to hovel as to it was held that the conviction was proper, cock, mow, or stack; and if there is any and that the latter statute extends to all doubt or uncertainty, it must be exercised barns of other persons, having hay or corn in favour of a prisoner. Hovel is from the in them, or being empty; and whether word 'to heave.' In Essex, wheat-hovel burnt in the day or night-time; Minton's means wheat raised from the ground to Ca., 2 East's P. C. 1021.

keep it from rats and mice: hovel may be A prisoner was indicted for setting fire to capable of a construction which supposes a a hovel. It appeared in evidence, that it was hovel of wood; but that question does not a building in a field, apart from any house or now arise. The use of the word wheatbarn, having three stone walls, being open hovel shews there may be such a thing as on the fourth side, and covered with sticks, a corn-hovel : whence it appears what the furze (or winns), and straw. In arrest of Legislature meant. Burning empty barns judgment it was contended, that the stat. was not arson before the statutes (unless 9 G. 1 contemplated a hovel of corn, straw, part of the mansion-house): burning barns hay, or wood. To this it was objected, that containing corn or hay, was (3 Inst. 67; the stat. 22 & 23 C. 2, c. 7, s. 2, makes Barham's Ca., 4 Rep. 20 a ; 1 Hawk. P. C.

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maliciously setting fire to the common gaol, in which he was THE KING 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 lie 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). 6. 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 G. 1, c. 22, for the subject of rating tenements under the setting fire to a liay.stack, that the pri statutes relating to the support of the poor; soner had no malice against the owner; as to which see R. v. Eyles, Cald. 407, and it is not necessary to aver that the 1 Bott, 160; and R. v. St. Luke's, ante, stack was thereby burnt; R. v. Salmon, 249, and cases there referred to. Russell & Ry. C. C. R. 26.

HART v. Weston.

S. C. 5 Burr. 2586. DEBT on a bail-bond. Plaintiff sets forth that the latitat Latitat may be against the principal was prosecuted out of the King's Bench, alleged to be the 23d day of February, 1769: and then the rest of the pro- bruary (though ceedings in order, and declares for 371., the penalty of the out of Term) it bond, as assignee of the sheriff of Cornwall. T'he defendant not being an impleads, that he does not owe the said 371., or any part thereof. Though the usual

possible time; To which the plaintiff demurs, and the defendant joins in de- course is to almurrer. And now, on this general demurrer, it was objected lege it to be sued by Mansfield for the defendant, that the writ could not be sued out the last day

of the Term, 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, bears teste (a). where a declaration, that a writ was prosecuted 18th July, Curiá apud Westm. adtunc tentá 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

(d) The safer course, in replying a writ to avoid a tender or the statute of limitations, is to aver the actual day of suing

it out, to prevent a special replication similar
to that in Woou v. Newton, 1 Wils. 141:.

see also 2 Wms. Saund. I c. in notis.


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

Judgment for the plaintiff(e).


(e) S. P. Walburgh v. Salstonstal, out a bill of Middlesex,"—the reporter obT. Jon. 149, 1 Ventr. 362, S. C.: cited serves (p. 299 b), that one fault of the also in Johnson v. Smith, ante, 217. So plea was, that the defendant alleged that where to a plea of the statute of limita W. had prosecuted the bill of Middlesex tions, the plaintiff replied, “ that within out of K. B. on the 25th September, wheresix years, &c., to wit, on the 8th of Au as it judicially appears, that the Court gust, 1805, he sued out of the Court of was not open or sitting upon that day.K. B. a certain precept called a bill of Mr. Serj. Williams (p. 300 b, edit. 1809) Middlesex, &c.," it was decided, that the also thinks that this was a fatal objection, Court would take notice in pleading of the and goes on to say, that in Hart v. Weston issuing of the bill of Middlesex on a day in the Court seemed inclined to overrule this vacation, though it be not pleaded to have objection, but took a distinction between been issued " as of the preceding Term." that case and Estwick v. Cooke; and that Bayley, J.-"Was it not decided in Hart the subsequent cases shew, that the Courts V. Weston, that it might be shewn in still hold this objection to be a valid one. pleading that the writ, though tested as of But in the late case of Luckett v. Plummer, the preceding Term, issued on a certain in C. P., 2 Brod. & B. 659, where the day in vacation? In Estwick v. Cooke declaration stated that the plaintiff “herethe allegation was, that it issued on a day tofore, to wit, on the 21st day of July, in the vacation, the said Court then being sued out of the Court of our Lord the held at W.;' which was incongruous;" King of the Bench here, the said Court Harrington v. Taylor, 15 East, 378. In being then and now at W., &c.;" the deed, in the case of Green v. Jones, 1 Wms. Court thought that the time being stated Saund. 295, where the plea stated, “that under a videlicet was immaterial, and on the 25th day of September, at the pa might be rejected as surplusage, and that rish of St. Clement's, before the same Lord it was sufficient if it appeared in subthe Kin

in the Court of our said Lord stance that the writ was issued out of the the King (the same Court being at W., in Court. S. C. 5 B. Mo. 538. See also the county of Middlesex), one W. W. sued Leadbeter v. Markland, post, 1131.

[ 684 ] NIGHTINGALL and Others, Assignees of METTIVIER,

v. Devisme.

S. C. 5 Burr. 2589. Stock in the IN

assumpsit for 20001., and non assumpsit pleaded; verdict public funds can- for plaintiff for 11701., subject to the opinion of the Court on not be sued for as money.

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 5001. East India stock, which the defendant had transferred to Mettivier on the 5 October, 1768, in consideration of a note for 13701., 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 20001. lent and advanced; 2. For 20001. had and received to plaintiff's use; 3. For 20001. 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): NIGHTINGALL That a special declaration might be framed, so as to meet this

DEVISME. case,

but in what manner they could give no directions. But that, as the present declaration was framed, there must be

Judgment of nonsuit.

(f) So an agreement to pay a percentage on all money received through A.'s means, does not entitle him to receive the per-centage on a transfer of stock obtained by him; Jones v. Brinley, 1 East, 1. But money had and received will lie for country

bank-notes against a party, who has treat-
ed them as money; Pickard v. Banks, 13
East, 20. See also Wookey v. Pole, 4 B.
& A. 1, and as to the action for money had
and received, see Moses v. Macferlan, ante,

The King v. 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 Glusburne Bridge. The defendants pleaded, that there to repair a new

built bridge by was an ancient foot-bridge over Glusburne brook, which, on a private person, 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- utility. bridge stood, they erected the bridge in question for horses, carriages, &c.; that the inhabitants of Glusburne had immemorially 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 101. 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 : murred to, and that objection taken; but “for it is a traverse of matter of law, and the Court gave judgment for the Crown such traverse, though very often inserted, without noticing it; R. v. St. Giles, 5 M. & is demurrable to, and ought therefore to be S. 260. But in a more recent case, where omitted;" note to R. v. Stoughton, 2 Wms. a plea by a parish, that the inhabitants of Saund. 159 b; S. P. Bennet v. Filkins, a certain district were liable, concluded, 1 Wms. Saund. 23, n. (5); per Buller, J., “and that the inhabitants of the said pain R. v. Lyme Regis, 1 Doug. 154; Grills “rish at large ought not to be charged, v. Mannell, Willes, 378; Stark. Crim. Pl. “ &c.,” the Court said, “ that certainly 712, n. (1), (ed. 1814). Or the plaintiff this was a sufficient traverse, if any tramay pass it by in his replication, and only verse was required;" R. v. Ecclesfield, 1 B. traverse the prescription; Richardson v. & A. 348. And see Grocers' Comp. v. Abp. Mayor of Oxford, 2 H. Bl. 182. A plea of Canterbury, post, 776. concluding with a similar traverse was de

THE KING Riding with the repairs of the said bridge; which sum was acv.

cordingly paid. That the inhabitants of Glusburne built a WEST RIDING, YORKSHIRE.

bridge for carts, carriages, and horses and foot passengers, and 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 (h). "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. 8(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.(I), 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

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

(i) See R. v. 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 (K) 22 H. 8, c. 5, commonly called the utility, and for making a commodious way Statute of Bridges.

to luis tin-works, the business of which (1) Pa. 697, et seq.

could not be carried on without it; but it (m) 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 & Channelbridge v. Prior of for about forty-three years; 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. Inhaba 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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