importing that the goods mentioned therein, were removed from No. 85, Wood Street, to No. 13, Boswell Court, which removal was thereby allowed; it was signed by two Directors of the Corporation of the London Assurance Company.

It was proved that such indorsements were usually made by the directors, and losses thereon constantly paid.

It was objected by the counsel for the prisoner, that the indorsement was void; first, as not being under the common seal of the Corporation; secondly, for want of a new stamp, there being none on the indorsement. And it was further contended that if it were void for one or both of these reasons, it could not be given in evidence, though the object of the prosecutors in producing it was, not to substantiate or give validity to the instrument, but merely to prove the intent as charged in the indictment.

HEATH J. admitted the evidence in order to take the opinion of THE JUDGES thereon, and the jury found the prisoner guilty, subject to the point of law.

This case was argued before ALL THE JUDGES (except ROOKE J.) at Serjeants' Inn Hall, on the 1st of December, 1807, by POOLEY for the Crown and KNAPP for the prisoner; and the conviction was held wrong by six JUDGES against five, viz. LORD ELLENBOROUGH, MANSFIELD C.J., WOOD B., GROSE J. and HEATH J., were of opinion that the conviction was right; and the LORD CHIEF BARON, THOMSON B., LAWRENCE J., LE BLANC J., CHAMBRE J., and GRAHAM B. contra.

1807.

GILSON'S Case.

REX v. JOHN HARTLEY.

1807.

owner of a col

THE prisoner was tried and convicted at the York summer assizes, Where the in the year 1807, before Mr. BARON WOOD, on an indictment liery employed which charged, that the prisoner received, at the parish of Gains- the prisoner as captain of one

of his barges to carry out and sell coal, and paid him for his labour by allowing him two-thirds of the price for which he sold the coals, after deducting the price charged at the colliery. Held that the prisoner was a servant within the meaning of 39 G.3. c.85.; and having embezzled the price he was guilty of larceny within the words of that act.

1807.

HARTLEY'S

Case.

borough, at the county of Lincoln, then and there being a servant, and employed in the capacity of a servant to Thomas Fenton, 167. of lawful money, &c. and afterwards, on the 27th of February, at the parish of Wakefield, in the county of York, fraudulently and feloniously did embezzle, secrete and make away with said sum of 167., and did feloniously steal, take and carry away the same from the said Thomas Fenton, his said master and employer, then being the property of the said Thomas Fenton, his said master and employer, for whose use and on whose account the said sum of 167. was so received and taken into the possession of the said John Hartley, and that the said John Hartley did, on the 27th of February, at the said parish of Wakefield, in the county of York aforesaid, feloniously steal the said sum of 167., being the property of the said Thomas Fenton, against the statute, &c.

The facts of the case were, that the prisoner was in the employ and service of Mr. Fenton as captain of one of his vessels, and employed as such to take coals from Mr. Fenton's colliery and sell the same, and bring back the money to his employer. The mode of paying him for his labour was by allowing him two third parts of the price for which he sold the coals above the price charged at the colliery.

It further appeared in evidence, that in January 1807, the prisoner loaded the boat of Mr. Fenton with twenty waggon loads of coals at Mr. Fenton's colliery at Greasbrook, and proceeded down the river with them to sell at the best market; when he had sold them he was to bring back the money, and take in a cargo of iron for Leeds; the price or value of the coals at the colliery was fourteen shillings a chaldron. He proceeded with them to Gainsborough, where he sold them for between eighteen and nineteen shillings per chaldron, and received the money, which he converted to his own use, and quitted the vessel without ever returning to Greasbrook.

Two objections were made on behalf of the prisoner : — First, That he was not a servant within the meaning of the act. Secondly, That the money was the joint property of him and his employer, as he was to have two-thirds for working the vessel, and, having a joint interest, he could not be guilty of felony.

On further enquiry, it appeared that the crew of this boat con

sisted only of the prisoner and his wife; but if men were wanted they were hired by the captain, and their pay first deducted out of the price at which the coals sold for, before the same was divided in the way that has been stated.

At the York spring assizes, in the year 1808, Mr. JUSTICE LE BLANC delivered the opinion of THE JUDGES.

"This case having been submitted to the consideration of ALL THE JUDGES, they maturely weighed and considered the objections, and the majority are of opinion that the prisoner's case is within the act of parliament, and that he was properly convicted.

"He had no interest in the boat or the coals; he was merely the servant of the owner employed to take the coals to a market to sell them and bring back the money to his employer; and the mode of paying him for his labour was by allowing him a fixed proportion of the profit made on the sale beyond the price charged at the colliery; this did not vary the nature of his employment, nor make him less a servant than if he had been paid a certain price per chaldron or per day; and as to the price at which the coals were charged at the colliery in this instance, viz. fourteen shillings per chaldron, that sum he received solely on his master's account as his servant, and by embezzling it became guilty of larceny within the words of the act of parliament.”

The sentence was, that he should be further imprisoned one calendar month, fined sixpence, and discharged. (a)

1807.

HARTLEY'S

Case.

(a) Vide Rex v. Hoggins, Pasch. 1809. post. A servant who received money for his master for articles made of his master's materials, which he embezzled, held to be within the act, though he made the articles, and was to have a given proportion of the price for making of them. Vide also Rex v. Spencer, Pasch. 1815. post. Rex v. Beechy, Hilary, 1817. post.

1808.

REX v. JOB ELSE AND SARAH ELSE.

Job Else and

Sarah Else, were indicted

The prisoners, THE prisoners were tried before Mr. JUSTICE GROSE, at the Lent assizes for Aylesbury, in the year 1808, on an indictment charging them with uttering to Mary, the wife of Richard Bowry, a counterfeit shilling, knowing it to be counterfeit, and having about them, in their custody at the same time, another counterfeit shilling, knowing the same to be counterfeit.

for uttering a bad shilling to M. B. and having another bad shilling in

their possession at the

time. The uttering was by

the woman alone in the

absence of the

man.

Held

that the man was not liable

to be convict

sociate of the

woman on the day of the uttering, and to have had

other bad mo

Upon the trial of these prisoners it appeared, that on Friday the 29th of January, 1808, they went to a public house called the Barge Pole, in Great Marlow, the man carrying a pack containing goods for sale, and slept there. They went out on the Saturday severally and repeatedly; the woman returned and slept there on the Saturday night, the man did not return till the Sunday, when they again went to bed. It also appeared, that ed with the ac- on the Saturday, the 30th of January, in the middle of the day, tual utterer, although prov- the woman went to the Swan, another public house at Marlow, ed to be the as- and bought some liquor, for which she paid a counterfeit shilling to the Mary Bowry named in the indictment, and she left this house about five o'clock in the afternoon. The man went to the Roebuck, another public house at Marlow, and there produced as many counterfeit shillings as (if good) would have been worth ten pounds, which he offered to sell for five pounds; and at the same time offered a number of sixpences, about one thousand, some at threepence halfpenny, and others at twopence half-penny the second of- a-piece; they were proved to be counterfeit. On the Sunday fence of having other bad mo- evening the constables found the prisoners in bed at the Barge ney in her pos- Pole; in the room, near the bed, was found a quantity of bad halfpence, some silver (four shillings and sixpence) in the man's pocket, which was good, and one shilling and sixpence bad; and concealed under his arm was found a paper parcel of bad shillings, which, if good, would have been worth fourteen pounds. In the woman's pocket were found a good halfcrown, seven good shillings, and six counterfeit shillings, like the counterfeits found in the paper under the man's arm.

ney for the purpose of uttering. Held that

the woman could not be convicted of

session at the

time, on the evidence of her associating with a man not

present at the

tering, but having large quantities of bad money

of

about him for the purpose uttering.

Upon this evidence it was insisted by the prisoner's counsel, that there was no ground to convict the man, he not having

uttered the shilling in question, nor being present at the time the woman uttered it. And that with respect to the woman she could only be convicted of uttering the shilling (the offence in the former part of the count) knowing it to be counterfeit, it not appearing that at the time of uttering it on the Saturday she (not having been searched on that day) had any other counterfeit money about her.

To this it was answered, that upon the evidence it appeared that they were both engaged in one unlawful concern of uttering bad money; that therefore the act of one was the act of both, that it was for the jury to say whether under all the circumstances of the case the woman had not other bad money about her at the time of uttering the counterfeit shilling.

The agent to the solicitor of the Mint asserted that there had been several convictions at the Old Bailey on the like evidence.

The learned JUDGE left the case to the jury, telling them that the evidence was sufficient, if they believed it, to convict the woman of uttering a counterfeit shilling, knowing it to be counterfeit, and that they should consider, whether she had at the same time other counterfeit money about her in her custody, and whether the husband and wife were jointly concerned in the transaction. They found the prisoners guilty. But it being in some respects a new case, the learned JUDGE submitted, for the opinion of THE JUDGES, whether both or either of the prisoners could on this evidence be legally convicted on the whole or any, and which of the offences stated in the indictment?

In Easter term, 14th May, 1808, ALL THE JUDGES met, and held the conviction of the woman for the single offence good; but not good for uttering and having about her at the time other money; and as to the conviction of the man, they held it could not be supported. And that the woman being improperly convicted ought to be recommended to a pardon on condition of imprisonment for three months. (a.)

1808.

ELSE'S Case.

(a) Vide Rex v. Soares and others, supra, 25. Rex v. Davis and another, supra 113.

W