"mond and Company of Charing-cross;" and therefore on all these grounds the JUDGES are unanimously of opinion, That the indictment is good, and of course that the judgment ought not to be arrested (1). THE prisoner accordingly received sentence of death; but he was afterwards pardoned on condition of transportation. 1782. LOVELL'S (1) See 8 laws, under the title, and against persons described "Harrison and Company," cannot be supported. THE KING against WILLIAM BASS. CASE CXXV. If a servant to whom goods have been delivered by his master customer, sell use, he is AT the Old Bailey in May Session 1782, William Bass was convicted of stealing a quantity of goods, the property of John Gatfee. THE prisoner was servant and porter in the general em- to carry to a ploy of the prosecutor, a gauze-weaver in Bishopsgate-street. them and conOn the day laid in the indictment he was sent with a package vertthemoney to his own of goods from his master's house, with directions to deliver them to a customer at a particular place. In his way he met guilty of felony; for the two men who invited him into a public-house to drink with possession is them and then persuaded him to open the package and sell the goods to a person whom one of the men brought in, which he accordingly did, by taking them out of the package and putting them into the man's bag; and he received eight guineas of the produce to his own use. It was referred to the consideration of the TWELVE JUDGES, Whether from the above facts, the prisoner was guilty of a felonious taking? not out of the master by such delivery. S. C. 2 East, 566, 698. MR. BARON HOTHAM in December Session 1782, delivered it as the unanimous opinion of all the JUDGES, That the conviction was proper; for the prisoner standing in the relation of a servant, the possession of the goods must be considered as remaining in the master (1) until and at the time (1) See Witof the unlawful conversion of them by the prisoner. The kins's case, master was to receive the money for them from the customer, and he could at any time have countermanded the delivery post, April Session 1789. 7 1782. BASS'S CASE. 1783. of them (a). The prisoner, therefore, by breaking open the package, tortiously took them from the possession of the owner, and having by the sale converted them animo furandi to his own use, the taking is felonious. MANY cases of this kind have occurred, and all of them have been determined to be felony (b). (a) See Vale v. Bayle, Cowp. 294, 296. (b) At the Old Bailey in October Session 1664, a prisoner was indicted for stealing a quantity of silk, the property of his master, who was a SilkThrowster. It appeared in evidence that the Silk-Throwster had men come to work in his own house; that the prisoner was one of them; that he delivered silk to him to work, and that he stole part of the silk so delivered to him; and HYDE, Chief Justice, MR. Justice KelynGE and MR. JUSTICE WILDE, agreed that this was felony, notwithstanding the delivery of the silk to the party; for it was delivered to him only to work, and so the entire property remained then only in the owner; like the case of a Butler who has plate delivered to him, or a Shepherd who has sheep delivered, and they steal any of them, that is felony at common law. Kely, Rep. 35. And so says the same author, page 82. If one deliver goods to a porter in London to carry to a certain place, and he taketh them and carrieth them away to another place, and there openeth and disposeth of them, it is felony; and he cites in support of this decision the Year Book, 13 Edw. 4. fo. 9. pl. 10, a cause determined by the Twelve Judges in the Exchequer Chamber, which was thus: one person bargained with another to carry certain bales of goods and other things to Southampton, and he took them and carried them to another place, and broke open the bales, and took the goods contained therein feloniously, and converted them to his own use, and disposed of them suspiciously; and this was held to be felony; for that notwithstanding the delivery, the property remained in the balors. CASE CXXVI. THE KING against WHITE. The name of AT the Old Bailey February Session 1783, the prisoner the owner of the house is indictment for was indicted before Mr. JUSTICE BULLER and Mr. JUSTICE essential in an GROSE, for burglary in the dwelling-house of John Snoxall, burglary, and and stealing therein goods, the property of Ann Lock. for stealing in Ir appeared that it was not the dwelling-house of John the dwellingSnoxall; and it was therefore held, that the prisoner could S. C. 2 East, not be found guilty either of the burglary, or of stealing to house. 513, 780. the amount of forty shillings in the dwelling-house, under the 12 Ann. c. 7. for it is essential in both cases to state in the indictment, the name of the person in whose house the offences are committed (a). (a) In October 1785, William Woodward was indicted for stealing, in the dwelling-house of Sarah Lunns. It appeared in evidence, that her name was Sarah London. MR. SERJEANT ADAIR, Recorder, held the variance fatal to the capital part of the indictment. 1783. WHITE'S CASE. THE KING against PATRICK AND PEPPER. CASE CXXVI. AT the Old Bailey in February Session 1783, Aaron Pa- A corporation trick and John Pepper were indicted before MR. JUSTICE must prosecute in their BULLER, present MR. BARON PERRYN, on the statute of corporate 6 Geo. III. c. 48. for cutting down in the night-time trees addition of growing in Enfield Chase. name; and the such name as a description of the persons of which the corporation ❞ indictment. THE first count in the indictment laid the property as "belonging to Joseph Brown, George Cook, and William "Sedcole, then being the churchwardens of Enfield afore- is composed, "said, &c. they the said Joseph Brown, George Cook, and cient in an is not suffi"William Sedcole, then being the owners of the said trees," &c. The second count laid the property to belong to the same persons by name, "they the said Joseph Brown, George "Cook, and William Sedcole, then being the churchwardens "of the parish church of Enfield, in the county of Mid"dlesex." By the statute 17 Geo. III. c. 17. for dividing Enfield Chase, a certain allotment of the land is vested in the churchwardens of Enfield for the time being, and their successors for ever, in trust for the owners and proprietors of freehold and copyhold messuages, lands, and tenements, within the parish, who were intitled to a right of common, &c. within the Chase. And by sect. 115, the churchwardens are incorporated by the name of "the churchwardens of the parish "church of Enfield, in the county of Middlesex." 1783. PEPPER'S PECKHAM and MINGAY, for the prisoners, submitted to the Court, that a conviction could not be sustained upon PATRICK AND this indictment; for that instead of laying the trees to be the property of the corporation, by their public name, it had laid them to be the property of the individual members composing such corporation, by their private names. CASE. SILVESTER and FIELDING, for the Crown, contended, that as the Act of Parliament had vested the property in the churchwardens for the time being, it was necessary for the sake of certainty to mention their names; but admitting the insertion of their names to be unnecessary, and supposing them expunged as superabundant, the indictment would still remain good; for that the first count would then lay the property as belonging to "the churchwardens of Enfield ;" and the second count, pursuing the words of the statute, would lay it technically as belonging to "the churchwardens "of the parish church of Enfield, in the county of Middlesex ;" which is the very name by which the legislature has described their corporate capacity. THE COURT held the objection to be fatal. The indictment would have been clearly right, if the first clause of the Act of Parliament which vests the property in the churchwardens for the time being had stood single. But the clause which gives the churchwardens a corporate capacity, and a corporate name, puts an end to the question; for where any description of men are directed by law to act in a corporate capacity, their natural and individual capacity as to all matters respecting the subject of their incorporation is totally extinct. The present indictment describes the trees to be the property of certain individuals, by their names; but the Act of Parliament shews the property to be in the corporation. If an action were brought in the private names of the present prosecutors for any matter relating to their public capacity, they must unavoidably be nonsuited; and, à fortiori, it must be erroneous in a criminal prosecution. But it is said that the private names may be expunged as surplusage. In the first count, supposing them expunged, the re 1783. PEPPER'S CASE. maining description would be," the churchwardens of En"field," which is not the name of the corporation; and therefore that count would still be wrong. In the second PATRICK AND count, it is true, the corporate name is used; but the property is not laid to be in the corporation of that name, See Sherringit is laid to be in the private persons, and the public ley's Case, name is used merely as a description of those persons. Session 1789, The prisoners must therefore be discharged on this indict- post, and the ment. ton and Buck O. B. Feb. Case of Rex v. Croke, Cowp. 29. THE KING against FRANKLYN. CASE CXXVIII. IN the King's Bench in Hilary Term, 23 Geo. III. a rule In an unlawful assembling was granted to shew cause why a writ of Habeas Corpus under the 19 should not issue to bring up the defendant, who had been Geo. II. c. 34. for rescuing committed to Norwich gaol under the statute 19 Geo. II. c. smuggled 34. s. 1. by a warrant stating, that he, with others armed, goods, it is had aided and assisted in rescuing uncustomed goods, and that every had assaulted and wounded and maimed an officer of the excise in the execution of his duty. "That if not necessary individual should be armed. S. C. Cald. 244.-But see 45 Geo. III. c. 121, s. 11. THE words of the statute are, "the number of three or more, "other offensive weapons, shall be assembled in order to be aiding and assisting in the illegal exportation of wool or "other goods prohibited to be exported, or in the carrying of "wool or other such goods in order to such exportation, "or in the running, landing, or carrying away prohibited or "uncustomed goods, or goods liable to pay any duties "which have not been paid or secured; or in the illegal "relanding of any goods whatsoever, which have been See Hutchinshipped or exported upon debenture or certificate: or in son's Case, post, Sept. "rescuing or taking away the same after seizure from any Session 1784, "officer or officers of the customs or excise, or other his for the man"Majesty's revenue, or other person or persons employed by him or them, or assisting him or them, or from the "place where they shall be lodged by him or them, &c. or "in case any persons to the number of three or more, so 66 ner in which these several clauses of the Act shall be expounded. |