awarded signifying the thing ordered to be done, and the word issued signifying the thing done. SECOND OBJECTION.-The Act says, that "After notice "in the London Gazette that such commission hath been is"sued, the bankrupt shall surrender himself to the Commis❝sioners named in the said commission, or the major part of "them;" whereas in one of these notices stated in the indictment, they have spun out their directions for the prisoner to surrender to all the five Commissioners, leaving out the words or the major part of them. THIRD OBJECTION.-The Act says, "The bankrupt shall "have notice that such commission has issued, and of the "time and place of meeting of the Commissioners therein "named, &c." But in the other notice they say, that he must surrender to three of them, without naming any of the rest. FOURTH OBJECTION.-That there ought to have been an averment in the indictment, that the Commissioners did sit, and that those Commissioners should have been named; whereas they were not named in the notice, which only set forth that he was required to surrender to the Commissioners at Guildhall, and it might as well be understood of the Commissioners of Sewers or of the Lieutenancy as of the Commissioners of Bankrupts, for they all sit at the same Guildhall. THE COURT were of opinion, that all these objections were good, and the indictment consequently vicious. 1738. FRITH'S CASE. ment not to THE prosecutor then moved, that the indictment might be, An indictquashed. But the COURT said, it was by no means proper be quashed to encourage the quashing of indictments after prisoners have after the pripleaded. The motion was accordingly refused; and the pri- pleaded. soner being put upon his defence, an acquittal was entered (a). soner has 4 St. Tr. 232. 2 Hale, 295. 1 Vent. 69. (a) But the Court may in its discretion quash an indictment at any time, 1 Hale, 35. before the Jury are charged with the trial of the prisoner. Foster, 27. 1739. CASE VI. tion of a dead accomplice read in evidence against a prisoner. THE KING against WESTBEER. The informa- AT the Old Bailey January Session 1739, Thomas Westbeer was indicted before LORD CHIEF BARON COMYNS, and MR. JUSTICE CHAPPLE, for stealing a parchment writing, purporting to be a COMMISSION, dated in the reign of Queen Anne, impowering the Commissioners therein named (pursuant to an order which had been previously made in Chancery, in a cause between Lord Chesterfield and John Cantrell and Others) to enter and ascertain the boundaries of the manors of Bradbury and Hartsherne, and to certify how high the water of Furnace Pool ought to be kept, &c. AND ALSO one other parchment writing, purporting to be a return made to the said commission. The property was laid to be the goods of our Sovereign Lord the King, and of the value of four shillings. (1) 1 & 2 P. & M. c. 13. 2 & 3 P. & M. C. 10. (2) Dudley Ryder, Esq. ONE Curteis Lulham, an accomplice, had made a full confession in writing, and given information upon oath against the prisoner before Lord Chief Justice Lee, pursuant to the statutes of Philip and Mary (1); but before Westbeer could be brought to his trial, Lulham the accomplice died in prison. The Attorney-General (2), after proving the fact of Lulham's death, insisted upon reading his depositions, made before the Chief Justice, as evidence against the prisoner. MR. Serjeant Hayward and Mr. Barnardiston opposed their being read; and contended, that as the act of God, which the Law says shall not work an injury to any man, had, by Lulham's death, deprived the Crown of the opportunity of producing him vivâ voce, the admitting his deposition to be read in evidence would injure the prisoner, inasmuch as he would lose the benefit which might otherwise have arisen from a cross-examination. The Attorney (2) and Solicitor-General (3) replied, and the point was very much debated. But Strange, Esq. the COURT over-ruled the objection, and admitted Lulham's information to be read; though they said it would not be. conclusive unless it were strongly corroborated by other testimony. (3) John Kely, 55. 1 Lev. 180. Salk. 281. Cro. Eliz. 901. 2 Jones, 53. 1 Hale, 305. 2 Keb. 19. 2 Hale, 284. Foster, 337. 2 Hawk, 605. CASE. A commission to settle the boundaries of a manor, is an instrument concerning THE COURT, upon hearing the evidence, expressed a doubt, 1740. whether the offence amounted to felony. The Jury therefore found a special verdict, "That the prisoner was guilty of WESTBEER'S "privately taking away a parchment writing, value one penny, "from the records in the Court of Chancery, purporting to "be a commission under the broad seal; and another parch❝ment writing annexed thereto, value one penny, purporting "to be the return to the said commission, with intent to "steal the same; that they were the goods of THE KING; "and that the cause of which they were the records, was "finally determined in the year 1717." the realty, and not the subject of larceny. IN Trinity Term 1740, this special verdict and the indictment were removed by certiorari into the Court of King's Bench (1). (1) Sir W. Three objections were raised on the part of the prisoner: Lee, C. J. Sir F. Page, FIRST, That it was a false conclusion of the Jury, that these Sir W. Proby, parchments were the goods of the King. SECONDLY, That Sir W. Chapple, Justices. being records, the indictment ought to have been on 8 Hen. VI. c. 12. s. 3. which introduces an entire new law. THIRDLY, That they concerned the realty, and could not become the subjects of larceny, from their constructive adherence to, and connection with, the freehold. THIS Case was twice argued at the Bar; but the two first points were very slightly spoken to, and not much relied upon. On the third point it was argued (2) on the part of the (2) By Mr. Crown, that these parchment writings were neither chattels Solicitor GeAttorney and real nor choses in action; and the only question would be, neral. Whether they could be construed to be charters concerning the inheritance? The reason given by Mr. Serjeant Hawkins(3) (3) 1 Hawk, why a felony cannot be committed of these things is, Because PC. 142. "being of no use but to the owner, they are not supposed to “be so much in danger of being stolen, and therefore need "not be provided for in so strict a manner as those things "which are of a known price, and every body's money." But the present parchments are not of that description, for the Jury have affixed such a value to them as will make the offence Petty Larceny. For charters which concern the realty, the heir may bring his action; but for these records, no such action will lie. The case in the YEAR Book (4) from (4) 10 Edw. 4. pl. 14. 1740. WESTBEER'S Judgment for a trespass in taking away ty cannot be which this distinction is drawn, says, that felony cannot be committed of charters which concern the realty, because they cannot be valued; but a value has been here affixed, and it is well known that for certain purposes old parchments will sell for a considerable price. It is clear, that the relation to the realty does not alone create the exemption; for there is no doubt but it would be felony to steal an heirloom, and yet that savours of the realty. It was admitted by the Counsel for the prisoner, that the parchment writings were neither chattels real, nor choses in action; but it was contended, that as they related to the boundaries of manors, and the right of water, they were charters which concerned the realty; for what can affect the inheritance more than the right of water, and the boundaries of a manor? It is true, perhaps, that the heir could not maintain an action to recover them, because they are of that nature which are called nullius in bonis, and every man has an equal right to resort to them. They are in the possession of the Crown, as being public records; but it does not follow from thence that they are the property of the King. THE COURT gave no opinion, whether these were properly laid to be the goods of THE KING, nor whether the Law as to this case was altered by 8 Hen. VI. c. 12.; but they were unanimously of opinion that these parchment writings concerned the realty, and that therefore the prisoner was Nor GUILTY of the felony charged in the indictment. BUT ANOTHER QUESTION arose, Whether the prisoner should be discharged, or receive judgment as for a TRESan instrument PASS? He was accordingly remanded, in order that this which concerns the real- question might be seriously considered. At another day Mr. Solicitor and Mr. Attorney General attempted to support the affirmative, and cited the Year-Book, 2 Hen. VII. 10. and 22. Cro. Car. 332. Kelynge, 29. Cro. Jac. 497. 1 And. 351. Dalt. 321. But it was answered, that the prisoner would in this case lose many advantages, to which if he were indicted for the misdemeanor he would by law be intitled. given on an indictment for stealing it. Kely, 29, 30. 1 Jones, 351. 2 Lev. 208. 556. 2 Hawk, P. C. 625. 2 Strange, 1137. 2 Hale, P. C. 172, He might have full Counsel, a copy of his indictment, and a 1740. special Jury. Beside, the verdict doth not find the taking to have been vi et armis; and if the word felonice be taken WESTBEER'S away, no trespass remains. THE COURT observed on the several cases which had been cited on the part of the Crown; and shewed that they were repugnant to the rules of law and principles of justice. prisoner was accordingly discharged. CASE. But see the case, Rex v. Scofield. The Cald. 401, 403. THE KING against JOHN DRINKWATER. CASE VII. AT the Old Bailey October Session 1740, John Drink- Quare? Whewater was indicted on the 4 Geo. I. c. 11. s. 4. before LORD ther a person CHIEF JUSTICE LEE, present MR. JUSTICE DENTON. THE indictment stated, that Catharine Kaylock, a repeating watch, the goods of SACKVILLE Earl of Thanet, privately from the person of William Lorton feloniously did steal, &c. AND THAT afterwards the said John Drinkwater did feloniously receive and have eight guineas, as a reward for helping one Nathaniel Delander to the said watch; he the said John Drinkwater not having apprehended, or caused to be apprehended, the said Catharine Kaylock, &c. against the form of the statute. It appeared from the opening, that the Earl of Thanet had sent the watch to Mr. Delander, a watch-maker, to be repaired, who delivered it to Lorton his workman, from whom Catharine Kaylock privately stole it; and it was admitted that Catharine Kaylock, the principal felon, was dead, and had never been convicted of this offence. BEFORE any evidence was given, the prisoner's Counsel submitted to the Court, that this indictment could not be legally prosecuted. The Act directs, that "wherever any 66 person taketh money or reward, directly or indirectly, "under pretence or upon account of helping any person to "any stolen goods or chattels, every such person so taking who receives money as a reward for helping another to stolen goods can be prosecuted before the principal offender is con victed. 3 Inst. 134. §. P. C. 40. 1 Hale, 619. 2 Hale, 400. |