3 G.4. c.114. Persons convicted of the offences herein mentioned, may be sentenced to hard labour. 2 Burn, 534. Offenders. (Punishment by Imprisonment, with hard Labour, in certain cases.) BY stat. 3 G. 4. c. 114. intituled "An Act to provide for the more effectual punishment of certain Offences, by imprisonment with hard labour." Passed 5th of August, 1822. §1. After reciting stat. 53 G. 3. c. 162. (3 Burn, 216.), and that it is expedient that the provisions of the said act should be extended to certain aggravated misdemeanors, and offences below the degree of felony: it is enacted, that from and after the passing of this act, whenever any person shall be convicted of any of the Offences hereafter specified and set forth; that is to say, I. Any assault with intent to commit felony. III. Any riot. IV. Any misdemeanor for having received stolen goods, knowing them to have been stolen. V. Any assault upon a peace officer, or upon an officer of the Customs or Excise, or upon any other officer of the revenue, in the due discharge and execution of his or their respective duty or duties, or upon any person or persons acting in aid of any such officer or officers in the due discharge and execution of his or their respective duty or duties. VI. Any assault committed in pursuance of any Conspiracy to raise the rate of wages. VII. Being an utterer of Counterfeit Money, knowing the same to be counterfeit. VIII. Knowingly and designedly obtaining money, goods, wares, or merchandizes, bills, bonds, or other securities for money, by false pretences, with intent to cheat any person of the same. IX. Keeping a common gaming house, a common bawdy house, or a common ill-governed and disorderly house. X. Wilful and corrupt perjury, or of subornation of perjury. XI. Having entered any open or inclosed ground with intent there illegally to destroy, take, or kill game or rabbits, or with intent to aid, abet, and assist any person or persons illegally to destroy, take, or kill game or rabbits, and having been there found at night armed with any offensive weapon. " In each and every of the above cases, and whenever any person shall be convicted of any or either of the aforesaid offences, it shall and may be lawful for the Court before which any offender shall be convicted, or which by law is authorized to pass sentence upon any such offender, to award and order (if such court shall think fit) sentence of imprisonment with hard labour, for any term not exceeding the term for which such court may now imprison for such offences, either in addition to or in lieu of any other punishment which may be inflicted on any such offenders by any law in force before the passing of this act; and every such offender shall thereupon suffer such sentence, in such place and for such time as aforesaid, as such court shall think fit to direct." 385 Office: [See 3 Burn, 553.] THE Certificate A. is required to be upon a 5s. stamp, by stat. 55 G. 4. c. 184. Sch. Part I. Pawning. [See stat. 39 & 40 G. 3. c. 99. §17.- 3 Burn, 598.] WALTER v. Smith, H. 2G. 4. 5 B. & A. 439. Trover for A pawnbroker has no right to sell unredeemed pledges after the expiration of a year from the time the goods were pledged, if the original owner tender a gold watch, a watch key, and two gold seals. Plea, not guilty. At the trial before Аввотт С. Ј., at the London sittings after last Mich. term, it appeared that the plaintiff, on the 22d of January 1820, had pledged the articles mentioned in the declaration, with the defendant, who was a pawnbroker, resident at Bristol, and that the plaintiff did not require the defendant to return them until after the expiration of one year and a day from the time they were pledged; and the defendant then refused to return him the princithem, asserting that they had become forfeited in consequence of pal and interest the year having expired. The plaintiff at the time of the demand, due. tendered to the defendant the amount of the principal and interest due in respect of the money advanced. At the time when the demand was made, the articles pledged remained in the possession of the defendant. They were subsequently sold by auction, and the defendant himself became the purchaser. At the trial, the Ld. Ch. Justice was of opinion, that under these circumstances the plaintiff was entitled to recover; the act of the 39 & 40 G. 3. c. 99., not vesting the property absolutely in the pawnbroker after the expiration of a year and a day, but only giving him a power to sell, in order to reimburse himself his principal and interest. The jury found a verdict for the plaintiff. And, on motion for a new trial, it was contended, that by stat. 39 & 40 G. 3. c. 99. §17., the property in the unredeemed pledges, after the expiration of the time mentioned in the statute, vested in the pawnee. That section prescribes, that all goods which shall be pawned or pledged shall be deemed forfeited, and may be sold at the expiration of one whole year, exclusive of the day whereon the goods and chattels were so pawned as aforesaid; and that all goods and chattels so forfeited, of a certain value therein mentioned, shall be sold by public auction. Now, in order to give effect to the word " forfeited," the original owner must be taken to have absolutely lost his right to the goods. § 19. (3 Burn, 598.) was relied upon as expressly reserving to the owner the liberty to redeem the goods upon the terms mentioned in that section, and therefore the legislature must have considered that the owner's right to redeem would have been otherwise extinguished. Аввотт С. J. I think that we cannot give to the word "forfeited," as used in this act of parliament, the effect contended for by the defendant. It is argued that its import is, that the party whose property is said to be forfeited has absolutely lost all right to it. Now it is manifest, from the other provisions of this act of parliament, that, after the time for redeeming the property pledged is SUPP. Walter v.Smith. expired, the whole interest is not divested out of the original owner. If it were, the sale would be entirely for the benefit of the pawnbroker; but, by the 20th § of the act, it is provided, " that with respect of goods pawned for more than 10s., if they shall be sold for more than the principal money and profit due thereon at the time of such sale, the overplus shall, by the pawnbroker, be paid on demand to the pawner, in case the demand shall be made within three years after such sale, the necessary costs and charges of such sale being first deducted." The pawnbroker, therefore, is only to derive from the sale so much as will reimburse him for his principal and interest, and the expenses of the sale, and the overplus, if any, is to be returned to the owner. We cannot, therefore, consistently with this provision, give to the word forfeited, as used in the 17th §, the sense contended for on the part of the defendant. I am of opinion, that if the pledge be not redeemed at the expiration of a year and day, the pawnbroker has a right to expose it to sale as soon as he can, consistently with with the provisions of the act; but if, at any time before the sale has actually taken place, the owner of the goods tender the principal and interest, and expenses incurred, he has a right to his goods, and the pawnbroker is not injured; for the power of sale is allowed him merely to secure to him the money which he has advanced, together with the high rate of interest which the law allows to him in his character of pawnbroker. For these reasons I am of opinion, that no rule ought to be granted. BAYLEY J. The object of the sale is, to enable the pawnbroker to reimburse himself for the amount of the principal money advanced, and the interest due thereon. And if, before any sale takes place, the party pledging pays the pawnbroker his principal and interest, and expenses incurred, all the purposes of a sale are answered; and, consequently, the pawnbroker, in such a case, can have no right to sell. The words " deemed forfeited and may be sold," mean not that the things pledged shall become the absolute property of the pawnbroker, but only that they shall be so far forfeited as that the pawnbroker may take steps towards a sale. I think, therefore, that the owner having tendered to the pawnbroker all the money that he would be entitled to raise by sale, he had no right to sell, and, consequently, that the plaintiff is entitled to recover. - HOLROYD J. I think that, by § 17. the property is not to be considered forfeited to all intents and purposes, but only for the purpose of enabling a sale to be had, by which the pawnbroker may pay himself his principal, and the profit which the law allows him to make in lieu of interest. Now the sale is for the benefit of the owner as well as of the pawnbroker; for, if the property pledged sells for more than the principal and profit allowed to the pawnbroker in lieu of interest, he is accountable to the owner. The latter, therefore, continues to have an interest in the property, and must have a right to redeem it, by paying to the pawnbroker all that he would be entitled to derive out of it by a sale. It is true, that by § 17. the goods are forfeited for the purpose of sale; but that purpose is fully answered by the pawnbroker's being paid the amount of what is due to him upon the pledge. In this case, a tender to that amount has been made to him, and therefore he had no right to put the owner to the burdensome and unnecessary expenses of a sale. I think, therefore, that no rule ought to be granted. - BEST J. The legislature never could have Walterv. Smith. intended to use the word "forfeited" in the 17th § of this act, in the sense which is contended for by the defendant. That word generally means, the taking away all right from one person, and transferring all right to another. The words are here, " that it shall be deemed forfeited, and may be sold." It is manifest, however, from the provisions of the act, that it is to be sold for the benefit of the person to whom it belongs, after securing to the pawnbroker his principal and interest; for the latter is directed to account to the original owner for the overplus, if any. It is clear, therefore, that the legislature did not intend wholly to transfer the interest of the original owner of the thing pawned to the pawnee; and therefore the word "forfeited," as used in this section, cannot have the sense contended for. It would be absurd to hold, in this case, that the pawnbroker had a right to sell, for by the sale, he could be entitled to no greater benefit than he would have received by accepting the sum tendered, which was the full amount of the principal and interest due. I think, therefore, that this rule ought not to be granted. R. R. Rawlinson v. Pearson and others, M. 2G. 4. 5 B. & A. 124. A A pawnbroker pawnbroker is a broker within stat. 5 G. 2. c. 30. § 39., and, there- is subject to the fore, subject to the bankrupt laws. A person who had formerly bankrupt laws. taken in goods upon pledge, but had ceased to do so, still contiuing to sell the unredeemed pledges, thereby carries on the trade of a pawnbroker, and is subject to the bankrupt laws. Perjury and Subornation. PUNISHMENT. - Vide stat. 3 G. 4. c. 114. title " Defenders," ante, 378. Players. [See 3 Burn, 630.] REX v. Glossop, T. 2 G. 4. 4 B. & A. 616. The conviction In a conviction stated, that on, &c. at, &c., C. W. W. came before two jus- of defendant for tices for the county of Surrey, and informed them, that defendant, causing to be acted at a cer of the parish of St. Mary, Lambeth, in the county of Surrey, tain place called in a certain place in the parish aforesaid, called the Royal Cobourg the Cobourg Theatre, without lawful authority of letters patent, and without Theatre, in the licence from the lord chamberlain, did cause to be acted, for parish of St. gain and reward, a certain entertainment of the stage, to wit, a Mary, Lambeth, certain tragedy, called Richard the Third; or, the Battle of for gain and reward, a certain Bosworth Field, &c. contrary to the statute, &c. The conviction entertainment then stated the appearance of defendant, and plea of not guilty; of the stage, and then proceeded thus, "nevertheless, upon this same day and called Richard year last aforesaid, at the said police office, Union Hall, in the the Third, the said parish of St. Saviour aforesaid, divers credible witnesses, to forth was, that wit, one John Tovey, one Junius Brutus Booth, and one William the defendant Allway, came before us the said justices, upon their several oaths, was seen once on the Holy Gospel of God to them severally and respectively, or twice at the late evidence set rehearsals of Richard; that another person was stage-ma nager; that defendantengaged J. S. to perform, and gave him a check for the amount of his benefit: Held, that this was sufficient to warrant the justices in drawing the conclusion that the defend ant caused the play of Richard the Third to be per formed. The conviction also stated, after the appearance and plea of de fendant, that divers credible now here and in the presence of the said John Tovey, Junius Brutus Booth, and William Allway, respectively duly administered, depose, swear, and in the presence of the said Joseph Glossop, upon their oaths aforesaid, severally affirm and say," &c. In the evidence, it was stated that the Cobourg Theatre was in the parish of Lambeth; and that an alteration of the play of Richard the Third was acted there for money. As to the defendant's causing that play to be represented, the evidence stated was, that J. В. В. became acquainted with defendant as manager and proprietor of the Cobourg Theatre; that defendant was seen once or twice at the rehearsals of Richard; that another person was stage manager; that J. B. B. engaged with defendant to perform several characters; that J. B. B. applied to defendant for that purpose; and that defendant made him an offer for twelve nights, to perform; that the contract was in writing; that J. B. B. afterwards performed there; that at his benefit defendant gave him a cheque for the amount. The conviction concluded, that defendant was guilty; and adjudged the penalty of 50l., one half to the informer, and one half to the poor of the parish of St. Mary, Lambeth, being the parish where the offence was committed. The conviction having been removed in the court of K. B. by certiorari, three objections were taken: first, that it did not sufficiently appear that the defendant had caused the play of Richard the Third to be performed. All that appears is, that he was seen at one or two rehearsals of Richard, and that he offered to engage performers, and paid them. But these facts do not shew even prima facie that he caused that particular play to be performed, which is necessary. Secondly, the witnesses do not appear to have been sworn in the presence of the magistrates, or of the defendant. They are stated to have been sworn in the presence of themselves only. If so, the evidence was improperly taken. Thirdly, the adjudication of the penalty is to the poor of Saint Mary, Lambeth; whereas the evidence states the Cobourg Theatre to be in Lambeth only, and, non constat, that Lambeth and St. Mary, Lambeth, are the same parish. - Аввотт С. J. As to the first objection, it is sufficient to say, that it cannot prevail, unless the evidence stated on the face of the conviction be such as that no reasonable person could draw the conclusion, that the defendant caused this particular play to be performed. I am very far from thinking that to be the case. The magistrates might very reasonably draw the conclusion; and having done so, we cannot overturn their decision as to the fact. As to the second objection, the whole forms one sentence; and it is there stated, that the defendant having appeared before the magistrates, and pleaded not guilty, "nevertheless, upon this same day and year, divers credible witnesses, to wit, &c. come before us, upon their several oaths, on the Holy Gospel of God, now here in the presence of the said witnesses, duly administered," &c. Taking the adjudication the whole together, I think it substantially appears that the oath witnesses, to wit, J. S., &c., came before the justices upon their several oaths, to them severally and respectively and in the pre sence of the said J. S., &c. duly administered : Held, that taking it altogether, it did substantially appear that the oath was admi nistered to the witnesses in the presence of the magistrates. The evidence also stated, that the Cobourg Theatre was in the parish of Lambeth, and of the penalty was to the poor of the parish of St. Mary, Lambeth: Held, that this was no variance, it not appearing that there were two was administered in the presence of the magistrates to the witnesses. As to the last objection, I think the evidence sufficient to support the adjudication. It does not appear that Lambeth and St. Mary, Lambeth, are two parishes; and, unless that be so, it is no variance. If, in the trial of an ejectment, the premises were described to be in St. Mary, Lambeth, and the evidence stated them to be in Lambeth, I think it would be no variance. And it |