one mare, price 5l., the property of Edward Kimpton, unlawfully, wilfully, maliciously, and feloniously did kill, against the statute, &c.

The second count charged, that he John Chalkley, certain cattle, to wit, one mare, value 5l., the property of Edward Kimpton, unlawfully, wilfully, maliciously, and feloniously did wound, against the statute, &c.

The prisoner was convicted upon this indictment; but upon referring to the evidence, the animal proved to have been killed was a colt, and it did not appear there was any proof of its sex; upon which the learned JUDGE who tried the case reserved for the opinion of THE JUDGES the following question : —

Whether the allegation that the prisoner killed "certain cattle," without specifying of what description, would have been sufficient?

The learned JUDGE being of opinion, that if the general description, "certain cattle," was sufficient, the sex of the animal which was stated under a videlicet might be rejected.

On the 14th of December, 1813, ALL THE JUDGES met at LORD ELLENBOROUGH's chambers in Serjeants' Inn, when they all were of opinion, that though cattle only are mentioned in the black act, yet that it is necessary to specify, in an indictment on the statute, the particular species of cattle maimed or killed. They were of opinion, that in this case the words "a certain mare," though under a videlicit, were not surplusage; and that the animal proved by the evidence to have been killed being a colt generally, without specifying its sex, was not sufficient to support the charge of killing, &c. a mare, and therefore the conviction was wrong. (a)

(a) Though the enactment of 9 G. 1. c. 22. is now repealed by 4 G. 4. c. 54. s.2. the meaning of the word cattle is important under the provisions of the

recent statute.

1813.

CHALKLEY'S

Case.

1813.

charge of

forgery by subscribing a fictitious name,

REX v. THOMAS BONTIEN.

To support a THE prisoner was tried before Mr. JUSTICE GIBBS, at the Old Bailey sessions, in the year 1813, on an indictment, the first count of which charged, for that he the said Thomas Bontein, on there must be the 12th day of November, 1810, at Tottenham, having in his custody and possession a certain bill of exchange, which said bill

satisfactory

evidence on

the part of the of exchange is as follows; that is to say,

prosecutor

that it is not

the party's

real name, and

"£19 14 0.

Tottenham, Nov. 12th, 1810.

"Six weeks after date pay to my order, the sum of nineteen

that it was as- pounds fourteen shillings, value received.

sumed for the

"H. LAWRENCE.

"Wood Street, London."

and fraud, will feloniously did falsely make, forge, and counterfeit upon the said

not amount to

forgery if it were not for that very fraud or system of fraud of which the forgery forms a part.

bill of exchange, a certain acceptance of the said bill of exchange, which said false, forged, and counterfeited acceptance of the said bill of exchange is as follows; that is to say,

with intention to defraud Hannah Lawrence, spinster, against the statute, &c.

The second count charged the said prisoner with feloniously uttering and publishing, as true a like false, forged, and counterfeited acceptance of a like bill of exchange, he well-knowing the same to be false, forged, and counterfeited, with the like intent, against the statute, &c.

The third count charged the prisoner with feloniously disposing of and putting away a like false, forged, and counterfeited acceptance of a like bill of exchange, he well knowing the same to be false, forged, and counterfeited with the like intent, against the statute, &c.

There was another indictment against the same prisoner for a

like offence of forging an acceptance on another bill of exchange for twenty pounds, with an intent to defraud the said Hannah Lawrence, with two other counts similar to those in the former indictment.

It appeared from the evidence of Hannah Lawrence, the drawer of the bills in question, that she occupied a house at Tottenham in October, 1810, but being desirous of leaving it, she advertised the house to be let. In the same month of October, she saw the prisoner, who was at that time a perfect stranger to her; he said he came to take the house, and said he would take the fixtures of the shop and what furniture she had to dispose of, if she would take two bills in payment for the furniture; the fixtures of the shop he said he could pay for in ready money, which amounted to twenty-six pounds fourteen shillings, but instead of doing so he made a payment of twenty pounds, and added the six pounds fourteen shillings to the bills. He took possession of the house on the 20th of November, and the bills in question were dated on the 12th of November, 1810, being the day they were given. The prisoner sent for stamps, and wrote the bills; the body of the bill produced (the one for 197. 14s.) was in the prisoner's hand-writing, and Hannah Lawrence put her name to it as the drawer: the prisoner wrote across the body of the bill, “Accepted, Thomas Scott, payable No. 4, Staining Lane, London." He also wrote, "To Mr. Thomas Scott, at Messrs. Terres & White's, No. 4. Staining Lane, Wood Street, London," and called Terres & White, his agents. Hannah Lawrence understood from the prisoner that Messrs. Terres & White's was the place at which both the bills would be payable in six weeks, but the prisoner said, if she could accommodate him by making one of the bills for two months it would suit him better than paying both together, which she agreed to do. The prisoner went at that time by the name of Thomas Scott, and said, if she enquired at Terres & White's who were his agents, she would find it all satisfactory. On the day the bill for 197. 14s. became due, it was presented at Messrs. Terres & White's No. 4, Staining Lane, for payment, but was dishonoured. Terres & White said they had no property whatever in their hands belonging to any person of the name of Scott, and that they had not known any thing of him for some time past. Mrs. Lawrence, on finding the bill was not paid, went down to

1813.

BONTIEN'S

Case.

1813.

BONTIEN'S
Case.

Tottenham to see after Mr. Scott, she had an interview with him, and he said he was very sorry he could not take up the bill, but that if she would wait, he would take it up in a few days, to which she consented; the three days being expired, the prisoner requested the time to be extended to another week, which was granted. The witness heard no more of the prisoner until the second bill became due, which at maturity was also presented at the place where it was made payable, and payment refused She then went to Tottenham again, but did not succeed in finding Mr. Scott. After a period of twelve months had elapsed, the witness went to Union Hall, for the purpose of seeing the prisoner, who was then in custody; he was there addressed by different names, as well as by the name by which he was indicted.

It appeared from the evidence of one of the clerks at Union Hall, that the prisoner was brought there in February, 1813, and upon being asked what his name was, he said Thomas Bontien (the name in which he was indicted). The witness. took down the name from the prisoner's own mouth, and that was the only name he gave himself.

It also appeared from the evidence of another witness, who had known the prisoner since the 15th of January, 1813, that about that time, he applied to him to take a house of his in Pratt Street, Lambeth, and that the name he gave was Thomas Bontien.

It further appeared from the evidence of one of the officers of Union Hall, that he apprehended the prisoner in the middle of February, 1813, and that he found in his lodgings in the Lambeth Road, a paper which stated the name of Bontien; it was a certificate of discharge under the insolvent act, which paper was afterwards claimed by the prisoner, and that he also found a number of other writings for rent and a variety of other things, by which he discovered that the prisoner's assumed name was Bontien, but he did not recollect that any of them contained the name of Scott.

The prisoner in his defence called a witness who was a broker, and who proved that he first knew the prisoner in the latter end of August, 1810, and knew him continually by the name of Scott; that the prisoner had a nick name of Bont and Bontien at times. This witness also proved, that he had transacted business with the prisoner in the name of Thomas Scott, in the year 1810, and he never knew him by any other name; and that his only know

ledge of his having gone by other names was from the public newspapers.

Upon this evidence the jury found the prisoner guilty, but the learned JUDGE respited the sentence in order to take the opinion of THE JUDGES upon the above case.

On the 14th of December, 1813, ALL THE JUDGES met at LORD ELLENBOROUGH's Chambers, in Serjeants' Inn. The majority of the JUDGES (Mr. JUSTICE HEATH appearing of a contrary opinion), thought that it did not sufficiently appear upon the evidence, that the prisoner had not gone by the name of Scott before the time of accepting the bill in that name, or that he had assumed the name for that purpose, and they therefore thought the conviction wrong. (a)

(a) Vide Rex v. Inhabitants of Burton-upon-Trent, 3 M. & S. 537., which was a question whether a marriage by licence in an assumed name, by which name the party (being a deserter) was only known in the place where he lodged and was married, and where he had resided sixteen weeks, was a valid marriage. Lord ELLENBOROUGH in giving judgment said, "If this name had been assumed for the purpose of fraud, in order to enable the party to contract marriage, and to conceal himself from the party to whom he was about to be married, that would have been a fraud on the marriage act and the right of marriage, and the act would not have given effect to any such corrupt purpose. But where a name has been previously assumed, so as to become the name which the party has acquired by reputation, that is, within the meaning of the marriage act, the party's true name. The same law has been recognized in the case of negotiable instruments, where, if a party sign an instrument in a name assumed by him for other purposes a considerable time before, such signature will not amount to a forgery; but otherwise, if he assume a name by which he had never been known before for the purpose of fraud. Now here the party assumed the name for the purpose of concealment and not of fraud upon the marriage, and he was known by that name alone for sixteen weeks in the place where he was married. It seems to me therefore that he had acquired the name, and that to have had a licence in any other name would have been a fraud on the marriage act."

Vide also Rex v. Shepherd, 2 East. P. C. 967. Aickles' Case, ibid. 968. Rex v.Peacock, East. T. 1814. post. 278. Rex v. Marshall, ante, 75. Rex v. Whiley, ante, 90.

1813.

BONTIEN'S
Case,