1800. BAILEY'S Case. miralty Sessions, and which act of the 39 G. 3. is entitled, "An act for amending certain defects in the law respecting offences committed on the high seas," only received the royal assent on the 10th of May, 1799, and the fact charged in the indictment happened on the 27th of June, in the same year, when the prisoner could not know that any such act existed (his ship, the Langley, being at that time upon the coast of Africa). LORD ELDON told the jury that he was of opinion that he was, in strict law, guilty within the statutes, taken together, if the facts laid were proved, though he could not then know that the act of the 39 G.3. c.37. had passed, and that his ignorance of that fact could in no otherwise affect the case, than that it might be the means of recommending him to a merciful consideration elsewhere should he be found guilty. It was further insisted that he did not fire the guns, but, at most, commanded them to be fired, which latter the jury expressly found was the fact. It was then insisted, that attending to the statute against wilfully and maliciously shooting, and the language of the act of the 39 G.3. c. 37., he was entitled to his clergy, and the rather as he did not himself fire the guns. (a) LORD ELDON, wishing to have the opinion of THE JUDGES upon this last point, as well as upon the other points upon which he had given directions, he, with the concurrence of MR. BARON CHAMBRE, recommended to THE JUDGE of the Admiralty not to pass any sentence till the opinion of the TWELVE JUDGES could be had. On the first day of Hilary term, 1800, ALL THE JUDGES (except Mr. JUSTICE BULLER) met at LORD KENYON's chambers, and were of opinion that it would be proper to apply for a pardon, on the ground, that the fact having been committed so short a time after the act 39 G.3. c. 37. was passed, that the prisoner could not have known of it; and THE JUDGES came to (a) Vide Rex v. Granger, or The Coal-Heavers' Case, 1 Leach, C. C. 64. 4th ed.; Rex v. Wells, Pasch. 1786, 1 East, P. C. 414.; Rex v. Royce, 4 Burr, 2075.; Rex v. Franklyn, 1 Leach, C. C. 255., where LORD MANSFIELD and the Court of King's Bench thought that defendant, though not armed, being present, aiding and assisting persons armed to resist revenue officers, was guilty as a principal. Vide also Sims and Midwinter's case, Fost. 415. Rex v. Amarro, post. Mich. 1814, and 1 G. 4. c. 90. this resolution without particularly deciding on the other points. But it seemed to be the general opinion of THE JUDGES present that the conviction was proper on the other points. (a) At the ensuing Admiralty sessions, June 1800, the prisoner was brought to the bar, and a pardon produced under the sign manual, on which the prisoner was discharged; entering into a recognizance of 100%., with two sureties of 50l. each, to appear and plead the first general pardon. 1800. BAILEY'S Case. REX v. JAMES SMITH. 1800. THE prisoner was tried before Mr.JUSTICE BULLER, at Maidstone Indictment on summer assises, in the year 1799, upon an indictment framed upon the 15 G.2. c. 28. s.3. (b), which charged that James Smith, late of ed, that de the 15 G. 2. c. 28. s. 3. charg fendant utter ed a counterfeit half-crown to J.F., and that at the time he so uttered it, he had about him another counterfeit half-crown; but it did not conclude with averring that he was a common utterer of false money: THE JUDGES held that such averment was unnecessary, and that the indictment was sufficient to warrant the greater punishment of the 3d section of the statute. S.C., 2 Leach, C. C. 858. 4th edit.; 1 East. P.C. 183. (a) An indictment was found at the Admiralty sessions against prisoners for maliciously burning a ship, with intent to defraud the underwriters; this was made felony by the 22 & 23 Car. 2. c. 11. s. 12., and the indictment was on that statute. On conference, HOLT C. J., and TRACY, J., thought this might be tried under the commission, and that the 28 Hen. 8. c. 15. extended to the trial of an offence made felony by a subsequent statute; but the other JUDGES being of a different opinion, it was agreed that it was not proper to try the prisoner. — Rex v. Snape, 1702, Tracy's MS. 78.; 2 East, P. C. 807.-But see 1 Ann. st. 2. c. 9. s. 4. (b) By which it is enacted, That if any person whatsoever shall, after the said 29th day of September, utter or tender in payment any false or counterfeit money knowing the same to be false or counterfeit, to any person or persons, and shall either the same day or within the space of ten days then next, utter or tender in payment any more or other false or counterfeit money, knowing the same to be false or counterfeit to the same person or persons, or to any other person or persons, or shall at the time of such uttering or tendering have about him or her, in his or her custody, one or more piece or pieces of counterfeit money, besides what was so uttered or tendered, then such person so uttering or tendering the same shall be deemed and taken to be a common utterer of false money, and being thereof con 1800. SMITH'S Case. the parish of Patrixbourne, in the county of Kent, labourer, on the 23d day of August, in the 38th year of the reign of our sovereign Lord George the Third, now King of Great Britain, &c. with force and arms, at the parish aforesaid, in the county aforesaid, one piece of false and counterfeit money made and counterfeited to the likeness and similitude of a piece of good, lawful, and current money and silver coin of this realm, called an halfcrown, as and for a piece of good, lawful, and current money and silver coin of this realm, called an half-crown, then and there unlawfully and unjustly did utter to one John Fearman, he, the said James Smith, at the time when he so uttered the said piece of false and counterfeit money then and there well knowing the same to be false and counterfeit. And also, that he, the said James Smith, at the time when he so uttered the said piece of false and counterfeit money as aforesaid, to wit, on the said 23d day of August, in the 38th year aforesaid, at the parish aforesaid, in the county aforesaid, had about him, the said James Smith, in the custody and possession of him, the said James Smith, one other piece of false and counterfeit money made and counterfeited to the likeness and similitude of a piece of good, lawful, and current money and silver coin of this realm, called an half-crown, he, the said James Smith, then and there well knowing the said last-mentioned piece of false and counterfeit money to be false and counterfeit, in contempt of our said Lord the King and his laws, to the evil example of all others in the like case offending against the form of the statute in such case made and provided, and against the peace of our said Lord the King, his crown and dignity. The following questions were reserved for the opinion of THE Whether the indictment should have concluded with the averment, that the defendant was a common utterer of false money? victed shall suffer a year's imprisonment, and shall find sureties for his or her good behaviour for two years more, to be computed from the end of the said year; and if any person, having been once so convicted as a common utterer of false money, shall afterwards again utter or tender in payment any false or counterfeit money to any person or persons knowing the same to be false or counterfeit, then such person being thereof convicted shall for such second offence be and is hereby adjudged to be guilty of felony without benefit of clergy. Or whether that was not the necessary conclusion of law from the facts so stated? In Hilary term, on the 8th of February, in the year 1800, this case, and one of the King v. Levy, which was tried at the same time, and in which the indictment was the same, was argued, before all THE JUDGES (except Mr. JUSTICE BULLER, who was absent,) by GURNEY for the prisoners, and FIELDING for the Crown, when THE JUDGES all agreed, that, considering the length of time this form of indictment had been used, it was not necessary that it should conclude with an averment that the defendant was a common utterer of false money. Mr. JUSTICE LE BLANC thought, and other JUDGES seemed to be of the same opinion, that it was a necessary conclusion of law from the facts stated, and not necessary to be averred. 1800. SMITH'S Case. THE REX v. RICHARD BOOTH. 1800. An indictment on the 15 G.2. c. 28. for uttering after a conviction offence, need defendant was adjudged to utterer: it is sufficient if it not aver that be a common states that he was tried and prisoner was tried before Mr. BARON THOMSON, at the Lent assises for the county of York, in the year 1799, upon an indictment stating that, at the general gaol delivery and general sessions of oyer and terminer, held at the castle of York, the for a double 29th of July, 37 G. 3., the prisoner was duly tried and convicted upon an indictment (set forth at large); the first count of which was, for uttering a false and counterfeit half-guinea to one John Remmer, the 24th of June, 37 G. 3., knowing it to be false and counterfeit. The second count was, for uttering, on the said 24th of June, a false and counterfeit half-guinea to John convicted of Remmer, knowing the same to be false and counterfeit; and uttering to A., afterwards, within the space of ten days next after the said piece and of uttering of false and counterfeit money was so uttered by him as last day to B., and aforesaid, viz. the 26th of June, 37 G. 3., uttering in payment imprisoned a adjudged to be another false and counterfeit half-guinea to Anne, wife of Joseph year. Scott, knowing the same to be false and counterfeit. The third count was for uttering in payment, the 27th of June, 37 G. 3., a false and counterfeit half-crown to Catherine, wife of John on the same See R. v. Smith, supra,5. 1800. Calvert, knowing the same to be false and counterfeit, and having BOOTH's Case. also, at the time of such uttering, about him in his custody, besides said piece of money uttered as last aforesaid, one more piece of counterfeit money, viz. half-a-crown. And that thereupon it was ordered by the court, that the said Richard Booth should be committed to His Majesty's gaol, the castle of York, there to be imprisoned for the space of one year, and that he should find sureties for his good behaviour for two years more, to be computed from the end of the said one year, himself in 100l. and two sureties in 50l. each, as by the record appears. And that the said Richard Booth, being a common utterer of false money, afterwards, that is to say, on the 12th of November, 39 G. 3., at the parish of Grinton, in the county of York, one piece of false and counterfeit money made and counterfeited to the likeness and similitude of a piece of good, lawful, and current and silver coin of this realm called a half-crown, then and money there unlawfully and feloniously did utter to one Sarah Scanter, widow, well knowing the same to be false and counterfeit, against the statute and against the peace. On the record of the prisoner's former conviction being read, it was objected by his counsel, that the indictment on which he had been convicted, and which was framed on the 15 G. 2. c. 28., contained no averment that the prisoner was a common utterer of false money, which the third section of the act has declared an offender under such circumstances as are stated in the second and third counts of that indictment, "shall be deemed and taken to be," and, therefore, that the prisoner had not been "thereof convicted," according to the words of that section; which also enacts, that if any person, "having been once so convicted as a common utterer of false money," shall afterwards utter or tender in payment any false or counterfeit money to any person or persons knowing the same to be false or counterfeit, then such person being thereof convicted shall for such second offence be adjudged guilty of felony without benefit of clergy. It was, therefore, contended the present indictment could not be supported. The prisoner was found guilty; but judgment was respited, that the opinion of ALL THE JUDGES might be taken on the question. This case stood over Easter and Trinity terms, to be argued by counsel. And at a meeting of ALL THE JUDGES (except Mr. JUSTICE BULLER) in Hilary term, on the 8th day of February, in |