1807. CURLING'S Case. same manner as treasons, felonies, and murders, and confederacies are directed to be by the same act. (28 Hen. 8. c. 15.) An objection was also taken at the trial by the prisoners' counsel (which LE BLANC J. over-ruled), viz. that the offence of the prisoners was not larceny, the same having been committed by them jointly with the master of the ship, not for the purpose of defrauding the owners, but of defrauding the underwriters for the benefit of the owners. The facts appeared in evidence to be that the prisoners, who were Deal boatmen or pilots, and had been applied to by the master to take the ship into Ramsgate, had, in collusion with the master, cut away the cable and part of an anchor which had before been broken, for the purpose of causing an average loss on the underwriters; having previously fastened a line to the cable which was so cut in order that some of their confederates, who were in a small boat alongside, might tow the cable and broken anchor ashore and convert them to their own use, which they did. (a) In Hilary term, January 20, 1807, ALL THE JUDGES (except MANSFIELD C. J.) assembled at LORD ELLENBOROUGH's chambers, where the majority, viz. THE CHIEF BARON, HEATH J., THOMSON B., ROOKE J., LAURENCE J., LE BLANC J., and CHAMBRE J., were clearly of opinion that judgment of death should pass, the statute 39 G. 3. c. 37. not extending to this case, which was capital by the marine laws, and triable under the 28 Hen. 8. But LORD ELLENBOROUGH, GRAHAM B., SUTTON B., and GROSE J., were of a different opinion. (b) (a) See Rex v. Mason, East, P. C. 796. S. C. 8 Mod. 74. (b) By 28 H.8. c. 15. s. 1. it is enacted, that all treasons, felonies, robberies, murther, and confederacies, hereafter to be committed in or upon the sea where the admiral has, or pretends to have, jurisdiction, shall be enquired, heard, tried, and determined in such places as shall be limited by the king's commission, in like form and condition as if any such offence had been committed on land. §3. enacts, that for treasons, robberies, felonies, murders, and confederacies done upon the sea, the offender shall not be admitted to have the benefit of his clergy, but be utterly excluded thereof and from the same. 1 Ed.6. c. 12. s. 10. enacts, that no person attainted or convicted of murder of malice prepensed, or of poisoning of malice prepensed, or of breaking any house by day or night, any person being therein and put in fear, or of robbing in or near the highway, or stealing horses, geldings, or mares, or taking goods 1807. REX v. JAMES HARDING, THOMAS servant. THE prisoners were tried before Mr. JUSTICE LAWRENCE at Larceny by a the Old Bailey January sessions, in the year 1807, for a larceny Where proin stealing a cart and 13cwt. of barilla, which in the first count perty, which the prosecuwere charged to be the property of James Bryant, and in the tors had second count to be the property of Samuel Cleaver and Charles bought, was Cleaver. weighed out in the presence Charles of their clerk 7th and delivered of to their cart Upon the evidence it appeared that Samuel and Cleaver, manufacturers of soap in Shoe Lane, on the January, 1807, employed James Bryant a master carman to cart for them, from the London Dock, a quantity of barilla which they had bought, but which had not been delivered to them, but was then lying in a vessel there; that Bryant sent his cart and two bis benefit jointly with that of the other persons, held that the carter's servant, as well as the other persons, was guilty of larceny at common law. er's servant to cart, who let other persons take away the cart and dispose of the property for out of a parish church, shall be admitted to have clergy; and that in all other cases of felony, other than such as are before mentioned, all persons shall have the benefit of clergy in like manner as he might have done before the 1 H.8. Moore, 756. Case 1044. Feb. 14. 2 Jac. ALL THE JUSTICES were assembled at the house of the LORD CHANCELLOR, at York House, to give their resolutions on two questions concerning pirates. The first, if clergy is allowable for piracy on an arraignment on statute 28 H. 8., and resolved that it was not, unless the piracy was done in a creek, or other river in which the common law, before the statute, had jurisdiction, not if it were done on the high seas out of the body of a county, because such felony is not felony by our law, but by the civil law, in which no clergy was used to be allowed; and the statute 28 H. 8. does not make this felony, but only ordains the manner of trial; whereas the statute 1 Ed. 6., which takes away clergy and gives clergy, yet does not extend to the act 28 H. 8., nor to this felony of piracy on the high seas. Secondly, if, by the king's pardon of all felonies by the common law, or any statute, this felony was pardoned; and resolved it was not, because it is not felony by the statute, nor by the common law, if done super altum mare, otherwise if committed in a creek or port. See, however, 2 Hale, P. C. 17. 369. 11 Co. 31. (b) contra. See 2 Hawk. P. C. 33. $.41., who attempts to reconcile the passage in 11 Co.31. (b) with the resolution of the JUDGES in Moore. 756. 1807. HARDING'S Case. horses under the care of the prisoner Harding, his servant, to bring the barilla to the house of the Cleavers, in Shoe Lane; that Harding went to the Dock with the cart and horses, where 38cwt. of the barilla was taken from the vessel, weighed, and put into the cart, in the presence of the Cleavers' clerk, who was sent to see it weighed, upon which the prisoner Harding (it being then about two o'clock) drove the cart out of the Dock. The barilla never came to the house of the Cleavers, but about four o'clock of the afternoon of the same day, the cart was seen with the barilla, driven at a great rate by the prisoner Robert Cook, in company with the prisoner Mears, through several streets in the parish of Spitalfields, and afterwards about eight o'clock it was met in the Minories empty, in the care of two persons who delivered it to a servant of the owner James Bryant. It further appeared in evidence, by the confession of Harding after he was in custody, that in the morning of the 7th of January, Mears and Hayes, knowing that Harding was to cart barilla, applied to him to let them have some barilla, and that he saw them drive the cart away; he having, before he was apprehended, said, that having left the cart and horses in the street while he went to get some victuals, they were during his absence driven away, and where they were gone he could not tell. The learned JUDGE left it to the jury to consider whether Harding permitted the prisoner Mears to drive the cart away, in order to dispose of the barilla for the benefit of himself and others who might be concerned with him, and whether Harding was to receive any benefit from such disposition; and told them, if they thought so, they ought to find all the prisoners guilty except Hayes, against whom there was not sufficient evidence: and the jury found them all, except Hayes, guilty. But some doubts having arisen, whether, as Harding had the barilla delivered to him to cart to Messrs Cleavers, the facts given in evidence amounted to a larceny, this case was submitted to ALL THE JUDGES. (a) In Hilary term, January 30, 1807, all the Judges (except MANSFIELD C. J., who was absent from indisposition) met at LORD ELLENBOROUGH'S chambers in Sergeant's Inn, and con (a) East. P. C. 568. to 574. and 695. to 698. sidered this case. CHAMBRE J. at first doubted whether this was more than a breach of trust in the servant, but afterwards concurred in opinion with all the other JUDGES (and to which opinion MANSFIELD C. J. signified his assent) that this was larceny in the servant; and that the conviction was right, whether the goods were considered as the property of the Cleavers or of Bryant. 1807. HARDING'S REX v. HENRY FREETH. 1807. THE prisoner was tried before Mr. BARON GRAHAM, at the There may be Stafford summer assizes, in the year 1807, upon an indictment for publishing as true a promissory note for ten shillings and sixpence. a sufficient false pretence within 30 G.2. e. 24. by the acts and con duct of the any verbal reparty without of a false and By the 15th G.3. c. 51. s. 1. promissory notes, &c. negotiable for any sum less than twenty shillings are declared absolutely void and of no effect, and by s. 2. if any person shall publish or presentations utter any such notes, &c. for a less sum than twenty shillings, or shall negotiate the same, he shall forfeit any sum not exceeding 201. nor less than 5l.; sections 3., &c. give directions as to the form of conviction. The indictment contained three counts. The first was on the 33 H. 8. c. 1. for obtaining money, &c. by colour or means of a false privy token; but this the learned JUDGE ruled could not be sustained. The second count was on the 30 G. 2. c. 24. s.1. and charged that the said Henry Freeth intending to cheat and defraud John Beebee of his monies, goods, and merchandizes, on the 9th of May, &c. did falsely, knowingly, &c. utter, publish, offer, and tender to the said John Beebee a false, forged, and counterfeit paper, as and for a true paper; and the said H. Freeth did then and there falsely, knowingly and designedly, fraudulently and wickedly pretend to the said John Beebee that the said false, &c. paper, was a true paper and signed by one William Sparrow, which paper is as follows:- fraudulent nature. The fact of uttering a counterfeit note as a genuine note, held to be tantamount to a re presentation that it was so. 1807. FREETH'S "Wolverhampton, 27th Feb. 1807. "I promise to pay the bearer on demand the sum of ten shillings and sixpence. "WM. SPARROW." with intention the monies, goods, wares, and merchandizes of the said John Beebee to obtain, well knowing the last-mentioned paper to be forged and counterfeited, by means of which last mentioned false pretences, the said H. Freeth did obtain from the said John Beebee a sum of money, to wit, nine shillings and ten pence, against the form of the statute, &c. The third count charged, that the said H. Freeth, contriving and intending to cheat and defraud the said John Beebee of his monies, goods, and chattels, on the same day, &c. did falsely, fraudulently, and wickedly utter, publish, offer, and tender to the said John Beebee a false, forged, and counterfeit paper, as and for a true paper, and which the said H. Freeth then and there did represent and pretend to the said John Beebee to be a true paper, subscribed, &c. which is as follows (setting it forth), with intention then and there to cheat and defraud the said John Beebee, and the monies, goods, and chattels of him the said John Beebee fraudulently to obtain; he the said H. Freeth, well knowing the said paper to be forged and counterfeited, by means of which last mentioned false pretences, the said H. Freeth, did then and there fraudulently obtain from the said John Beebee a sum of money, to wit, nine shillings and tenpence of the money of the said John Beebee. 4 It appeared by the evidence of John Beebee, confirmed by several witnesses, that the prisoner came to his shop at Bilston, on Saturday night, the 9th of May, 1807, and asked for a loaf, which he served to him for five pence; that the prisoner then asked for some tobacco, and the witness served him with an ounce for threepence. The prisoner then threw down a ́note for ten shillings and sixpence, upon which the witness said he had no change but in copper, but the prisoner said copper would do; and the witness then gave him nine shillings and tenpence in copper, and the prisoner took the money, with the loaf and tobacco, and went away. The note was that set forth in the indictment, and was a forged note. And it was proved that the prisoner on the same evening, |