1754. the same indictment as an accessary before the fact, for counselling, advising, &c. the said Lancey and Lloyd to commit POW'S CASE. the felony aforesaid. (1) He was executed at Execution THE EVIDENCE.-Benson, the owner of the ship, rented the island of Lundy, situated in the mouth of the Bristol Channel, near the middle, between Devonshire and Pembrokeshire, Long. 4. 40. W. Lat. 60. 25. N. but within the county of Devon. Pow was a Taylor and Salesman, living near the Point of Appledore, a town in Kent, seated on the river Rother, not far from its influx into the sea, Long. 0. 50. E. Lat. 50. 45. N. The ship was freighted with salt, dry goods, maunds of pewter, and a cask of combustibles, and insured by Benson for 400l. from Appledore to Maryland. Pow shipped the seamen on board at Appledore; and she sailed from thence to Lundy Island, where the dry goods and pewter were unloaded, and buried under ground among the rocks. While the vessel lay in Lundy Road, in fourteen fathom water, Pow went on board her, and gave several of the crew notes of hand, promising to pay them a certain sum of money, as a compensation for their clothes, &c. in case the ship was lost by any misfortune, between that place and the Cape of Virginia on her outward-bound passage. Pow returned on shore; the ship set sail; and the morning after, Lancey, the Captain, gave orders to set the ship on fire, which was accordingly done. THE Jury acquitted Lloyd, and found Lancey Guilty (1). They also found specially, "That Thomas Pow, before the Dock on Fri-" said felony was committed by Lancey, did, near the island day, June 7, "of Lundy, within the county of Devon, incite, move, in 1754. 66 stigate, stir up, and counsel the said John Lancey to com"mit the same; but that the said Thomas Pow was neither "Owner, Master, Captain, or Mariner of the said ship." UPON this verdict two questions were submitted to the opinion of the Judges. FIRST, Whether an accessary upon the land to the offence of burning a ship, which offence is afterwards committed upon the high seas, is within the jurisdiction of the Court of Admiralty? or, Whether he ought not to be indicted and tried at the Assizes for the County within which his offence 1754. was committed? SECONDLY, Whether Thomas Pow, being a person in trade, living at Appledore Point, and found by the verdict not to be either Owner, Master, Captain, or Mariner of the vessel burnt, is within the meaning of the 4 Geo. I. c. 12. explained by 11 Geo. I. c. 29. s. 6. upon which the indictment is founded; that statute only saying, "That if any Owner, Cap"tain, Master, Mariner, or other Officer belonging to any ship shall wilfully cast away, burn, or otherwise destroy, "the ship of which he is owner, or unto which he belongeth, or in any manner of wise procure the same to be done, to "the prejudice of the underwriter, &c. he shall suffer death "without clergy." 66 66 THE JUDGES were of opinion, That Thomas Pow, upon the finding of the Jury, was not an offender within the meaning of the 4 Geo. I. c. 12. and 11 Geo. I. c. 29. (a) but they gave no opinion upon the first point. (a) These statutes, as to the clauses in question, are now repealed by 43 Geo. III. c. 11s. and other provisions made upon this subject. POW'S CASE, 1756. THE KING against HARRISON. CASE XXIII. AT the Old Bailey, in February Session 1756, Nathaniel A prisoner Harrison was tried before MR. BARON ADAMS, present MR. JUSTICE DENNISON and MR. JUSTICE BATHURST, for stealing cannot be found guilty of stealing goods, if it a silver tankard, and three silver castors, the property of appear that he James Cobb. could not otherwise get The them than by the delivery of the the prosecu tor's wife. It THE prisoner was an apprentice to the prosecutor. prosecutor's wife had continual custody of the key of closet where her husband's plate was usually locked up. appeared that she had pawned some articles of it, in order to supply the prisoner with pocket-money, but the articles she pawned were not those mentioned in the indictment. The prisoner confessed, that he took the articles mentioned S. C. 2 East, 559. 1756. HARRISON'S CASE. Pulton, 129. 21 Hen. VI. 455. in the indictment from the closet; and a pawnbroker proved, that he received them in pledge from the prisoner; but it did not appear by what means the prisoner had gained access to the closet from which they were taken. THE COURT held, That the prosecutor's wife having the constant keeping of the key of the closet where the plate was usually locked up, and it appearing that the prisoner could not have taken it without her privity or consent, it might be 1 Hale, 514. presumed that he had received it from her; and he was ac 3 Inst. 110. Dalt. c. 157. p. 504. Hale's Sum. 64. 1 Show, 52. 1759. cordingly acquitted. CASE XXIV. If a banker pay a forged draft, and do not debit the account of the person whose THE KING against THOMAS USHER. AT the Old Bailey October Session 1759, Thomas Usher was tried before MR. BARON SMYTHE, present LORD MANSFIELD and MR. JUSTICE WILMOT, for forging an acceptance to a bill of exchange, in the name of Anthony Merry, for the name is forged payment of 250l. and for publishing the same, knowing it to with the payment, such be forged, with intent to defraud Sir Charles Asgill and Co. person is a good witness THE Bill was as follows: to prove the forgery. S. C. 2 East, 999. "Ex. par 250l. sterling. LAOS DEO, Malaga, 5 Feb. 1758. "AT usance and half, pay this our first per exchange, to "Mr. Domingo Gueico, or order, 2501. sterling, value re"ceived of the same; which place to account, as per advice "" from "To Mr. Anthony Merry, "Merchant in LONDON." "THOMAS QUILTY and Co." THE bill purported to be accepted by Mr. Merry, and to be payable at Sir Charles Asgill's and Co. THE prisoner had lived in the capacity of Cash-keeper to Mr. Merry, a Spanish Merchant; and the fact of his having uttered this bill, and of his having received the money for it of Sir Charles Asgill and Co. were clearly proved. It also appeared that Asgill and Co. had charged Mr. Merry's ac count with this payment; but afterwards, being fully persuaded, from what Mr. Merry told them, that it was a forgery, they gave Mr. Merry's account a credit for the same sum. To prove that the acceptance was forged, the Counsel for the prosecution called Mr. Merry himself. The prisoner's Counsel objected to the competency of his evidence, unless he produced a release from Sir Charles Asgill and Co. THE COURT said, That as Sir Charles Asgill's BANKINGHOUSE was thoroughly satisfied of its being a forgery, and had settled their accounts not charging Mr. Merry with the payment, or making him any way debtor for the bill, it was perfectly immaterial to Mr. Merry, whether the prisoner was convicted or acquitted, for there could be no demand upon him for the 2501.: and upon this ground the objection was over-ruled. THE KING against SARAH TAYLOR. CASE XXV. Setting fire to paper in a drying loft belonging to a paper-mill is not setting fire to an outhouse, within the AT the Lent Assizes held at Rochester, in and for the County of Kent, on Monday the 19th March, 33 Geo. II. before the HON. HENEAGE LEGGE, Esq. one of the Barons of the Exchequer, Sarah Taylor, late of the parish of Dartford in the said County of Kent, was indicted, for that she on the 26th June 1759, about the hour of ten, in the night of meaning of 9 the same day, a certain outhouse of one William Quelch, commonly called a Paper-mill, feloniously, voluntarily, and maliciously did set fire to, against the statute, &c. It appeared in evidence, that the prisoner had set fire to a large quantity of paper, which was drying in a loft annexed and belonging to the mill, but not to any part of the mill itself, nor was any part of the mill consumed. THE Jury found the prisoner guilty; but Mr. Baron Legge having expressed a doubt, whether a Paper-mill could be considered as an outhouse within the meaning of that branch of the BLACK ACT upon which the indictment was founded, Geo. I. c. 22. 2 East, 1020. 1759. TAYLOR'S CASE. See 43 Geo. 1761. the judgment was respited; and the following questions submitted to the consideration of the Judges: FIRST, Whether a mill can be considered as an outhouse within the meaning of the 9 Geo. I. c. 22. which enacts, "That if any person shall set fire to any house, barn, or "outhouse; or to any hovel, cock, mow, or stack of corn, "straw, hay, or wood, &c. they shall be guilty of felony, "without the benefit of clergy?" SECONDLY, Whether setting fire to paper in a drying-loft belonging to a mill can be considered as setting fire to the mill? Ar the next Assizes on the 24th June 1760, MR. JUSTICE FOSTER Certified that the prisoner's case having been laid before him at the last Assizes for the County of Kent, he had, on his return from the circuit, conferred upon the same with the other Judges of the Court of King's Bench; and that they all agreed, that the prisoner not having set fire to any part of the mill, and no part of the mill having been consumed, her case was not within the statute upon which she was indicted, and therefore he had recommended her as a person intitled to a free pardon. Signed M. FOSTER, 24th June 1760. THE PRISONER was accordingly admitted to bail for her appearance at the next Assizes to be holden for the County of Kent, after notice that she was inserted in the next general pardon that should issue for the convicts upon the Home Circuit. Upon her entering into the usual recognizance, therefore, she was discharged. CASE XXVI. What evi dence is necessary in perjury. THE KING against MORRIS. AT the Sittings after Easter Term 1761, in the King's Bench, John Morris was tried before LORD MANSFIELD for wilful and corrupt perjury, in an answer in Chancery. No evidence was given of the identity of the person who swore the answer, nor was it proved that any person at all |