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1779.

TAYLOR'S
CASE.

contrary, there never was such a person existing as the "William Wilson" whose name was supposed to have been forged. It was also submitted that the name William Wilson, could not have been used with an intention to defraud, because no receipt at all was necessary, and the prisoner might as well have procured payment of the bill by writing the receipt in the name of " John Taylor," as in the name of "William "Wilson;" for the possession of the bill was a sufficient discharge to the drawee, which discharge was not any way strengthened by the receipt the prisoner had given, and therefore the use of the fictitious name not being necessary to the accomplishment of any fraud, was of no effect; that he was not compellable to give any receipt; that he gained no additional credit by the name he assumed; and that what he had written was a mere memorandum, and did not operate as an acquittance against any person but the man himself who received the money, and who would be equally estopped by it, as if he had written his own name.

THE Court however over-ruled both the objections, being of opinion that as this was a false receipt the case was clearly within the statute; that the prisoner knew he had obtained the bill fraudulently; that the better to elude enquiry after him, it was necessary to conceal his name; that his object was to defraud the real owner of the bill of its value; and that if he intended to defraud any body by the fictitious signature, it was sufficient to constitute forgery.

THE Jury found the prisoner Guilty; but the judgment was respited, and the case referred to the consideration of the TWELVE JUDGES, eleven of whom were of opinion, that though the prisoner did not gain any additional credit by signing the name W. Wilson to the receipt, as the bill was not by the indorsement made payable to the person whose name was used, yet still it was a forgery; for it was done with intent to defraud the true owner of the bill, and to prevent the person receiving the money, from being so readily traced (a).

(a) See the case of Edward Taft, ante, page 172. Case 88. and the case of Tatlock v. Harris, 3 Term Rep.176, where it is said in argument, at the Bar,

and seemingly adopted by the Court, that it is no answer to the charge of FORGERY to say, that there was no special intent to defraud any particular person, because a general intent to defraud is sufficient to constitute the crime; for if a person do an act, the probable consequence of which is to defraud, it will, in contemplation of law, constitute a fraudulent intent.

1779.

TAYLOR'S

CASE.

1780.

THE KING against ANNE Gould.

AT the Old Bailey in January Session 1780, Anne, the wife of John Gould, was tried before NARES, JUSTICE, present SKINNER, CHIEF BARON, ASHHURST, JUSTICE, and ADAIR, RECORDER, on an indictment charging the prisoner with having stolen "one leathern purse containing six guineas, &c." the property of William Herring, in the dwelling-house of the

said John Gould.

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644.

THIS indictment was framed on the statute of 12 Ann. c. S. C. 2 East, 7. which enacts, "That every person that shall feloniously "steal any money, goods, &c. of the value of forty shillings, "being in any dwelling-house or out-house thereunto be

66

longing, although such house or out-house be not actually "broken by such offender, and although the owner of such goods, or any other person, be or be not in such house, " &c. shall be absolutely debarred of clergy."

66

1784.

THE JUDGES present were clearly of opinion, in which MR. See M' DaJUSTICE GOULD afterwards concurred, that the prisoner niel's case, post, Septemcould not be convicted of the capital part of the indictment ber Session inasmuch as the felony was committed in the dwelling-house of her husband, which must be construed to be her house also, and it is apparent that the legislature intended that the stealing must be in the house of another person, to oust the offender of clergy.

1780.

CASE CVIII.

A tenant in possession of a copyhold messuage is

THE KING against SPALDING.

AT the Lent Assizes holden at Bury for the County of Suffolk, in the year 1780, William Spalding was tried for not guilty of ARSON, in having set fire to his own house at Hartest.

ARSON by burning it, although it

has been surrendered to the use of a mortgagee; for it is not the house of

another while the tenant continues in possession.

S. C. 2 East, 1025.

THE indictment contained two general counts; the first describing the offence as at common law; for feloniously, wilfully, and maliciously setting fire to and burning his own house at Hartest, against the peace, &c.; the second for feloniously, voluntarily, and maliciously setting fire to his own house against the statute of 9 Geo. I. c. 22.

THE premises were copyhold, of which the prisoner was tenant in possession; and on the day laid in the indictment, he wilfully set fire to a girder in the back part of the house, by the means of which a great part of the timber of the roof and the entire thatch of the house were consumed. The house was situated in the village of Hartest, in the County of Suffolk, detached from any other house; but there were other houses on each side of it, within the distance of four yards. In the month of January 1776, the prisoner had surrendered the house into the hands of the lord of the manor, to the use of one Benjamin Nott, his heirs and assigns, for securing the payment of sixty pounds, with legal interest, on the third of July next following the date of the surrender; but Benjamin Nott had never been admitted upon the surrender. The prisoner had insured the house and goods from fire to a considerable amount, and had paid the premium to the Lady-Day subsequent to the commission of the fact. The premises were all insured by Benjamin Nott, the mortgagee.

THE Jury found the prisoner guilty; but the judgment was respited, and the following points submitted to the consideration of the TWELVE JUDGES.

First, WHETHER the indictment was properly adapted to the case?

Secondly, WHETHER any evidence as to the mortgage and surrender of the premises ought to have been received?

Thirdly, WHETHER under all the circumstances of the case, the offence amounts to Arson at the common law, or to a felonious burning within the meaning of the statute?

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1780.

SPALDING'S

CASE.

1 Hale, 556. Staund. 36. 3 Inst. 66.

On the first day of Easter Term 1780, this case was pro- L. C. J. De pounded to Ten of the JUDGES at LORD MANSFIELD'S Cham- Grey absent. bers; and upon the first question they were unanimous, That as the indictment was for burning his own house, it was insufficient; for that the crime of Arson at common law consists in maliciously and voluntarily burning the house of another, according to the case of Rex v. Holmes; and that the 4 El. Com. statute of 9 Geo. I. c. 22. does not alter the nature of the crime, or create any new offence, but only excludes the principal more clearly from the benefit of clergy than he was excluded before; it being doubtful before that statute, whether or not the principal or at least persons in holy orders were intitled to the benefit of clergy in Arson (a): that the

(a) The statute de Clero, 25 Edw. III. st. 3. c. 4. provides; that persons convicted of treasons or felonies touching other persons than the king himself, shall be allowed the benefit of clergy; but it was held, that combustio domorum, the burning of houses, or ARSON, still remained without this benefit. The Legislature, however, by the 23 Hen. VIII. c. 1. s. 3. thought proper expressly to deprive principals and accessaries before the fact, in Arson, of the benefit of clergy, when convicted by verdict or confession; and the 25 Hen. VIII. c. 3. s. 2. also ousteth such offenders standing mute, or refusing to plead, in like manner as if they had pleaded not guilty, and been found guilty. The 1 Edw. VI. c. 12. s. 10. again takes away clergy from many of the offences enumerated in the former Acts; but is totally silent as to the offence of ARSON; and then enacts, that in all other cases of felony, all persons shall have the benefit of clergy, as they might have had before these Acts were made. The wilful burning of houses, therefore, was by this clause restored to the benefit of clergy. The 5 and 6 Edw. VI. c. 10. revived part of the statutes of 23 Hen. VIII. c. 1. and 25 Hen. VIII. c. s. but not that part which ousted ARSON of clergy. The 4 and 5 Phil. & Mar. c. 4. however takes away clergy in all cases from him that maliciously commands, hires, or counsels WILFUL BURNING; and it became a question in Poulter's Case, 11 Co. 29, Whether, by virtue of these statutes, a principal in ARSON was deprived of his clergy? Poulter was convicted and hanged. But LORD HALE,

220.
Foster, 330 to

336.

1780.

resolution in Holmes's Case (1) has been too long established to be controverted, and the interpretation of the statute must SPALDING'S be governed by that determination. The circumstance of the premises being insured makes no difference in this case (a).

CASE.

(1) Cro. Car.

338.

LORD COKE, and others have differed in their opinions respecting the grounds of this decision; LORD HALE, with whom MR. JUSTICE FOSTER coincides, being of opinion that clergy' is taken from the principal by virtue of the 4 and 5 Phil. & Mar. and LORD COKE, that it is taken away by the revival of 23 Hen. VIII. c. 1. s. 3. and 25 Hen. VIII. c. 3. s. 2. and this is conceived to be the difficulty which occasioned the clause in the statute of 9 Geo. I. c. 22.

(a) But by 43 Geo. III. c. 58. it is a capital offence, maliciously to set fire to any house, barn, granary, hop-oast, malt-house, stable, coachhouse, out-house, mill, warehouse, or shop, whether they shall then be in the possession of the person or persons so setting fire to the same, or in the possession of any other person or persons or body corporate, with intent thereby to injure or defraud his Majesty or any of his subjects, or any body corporate, or to counsel, aid, or abet therein.

CASE CIX.

A tenant in possession under agreement for a

lease for three

years from a lessee who

THE KING against BREEME.

AT the Old Bailey in April Session 1780, Andrew Breeme was indicted before MR. BARON EYRE, for that he, about the hour of twelve in the night, a certain house feloniously, wilfully, and maliciously did set on fire and burn.

held under a building lease, is not guilty of ARSON by setting the house on fire; and the 9 Geo. I. c. 22. does not vary the nature of this offence. But see 43 Geo. III. c. 58. supra.

S. C. 2 East, 1026.

THE indictment consisted of six counts, charging the offence to have been committed, first, against the common law; and, secondly, against the statute 9 Geo. I. c. 22. and laying it to be the house, FIRST, of William Bolton; SECONDLY, of Stone Tuppen; THIRDLY, of Andrew Breeme.

THE Jury found the prisoner Guilty; and also that the prisoner wilfully and maliciously set on fire and burned the house mentioned in the indictment: That he was tenant in possession of the house, under a written agreement for a

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