1783.

CASE.

66

"armed as aforesaid, shall be so aiding or assisting; or if any person shall have his face blacked or wear any vizard, FRANKLYN'S <mask, or other disguise, when passing with such goods, or "shall forcibly hinder, obstruct, assault, oppose, or resist 66 any of the officers of the customs or excise, or other his Majesty's revenue, in the seizing or securing any such 66 goods; or if any person or persons shall maim or dan"gerously wound any officer of the customs or excise, or "any other his Majesty's revenue, in his attempting to go ❝on board any ship any ship or vessel within the limits of any of the ports of this kingdom, or shoot at, maim, or dangerously "wound him when on board such ship or vessel, and in the "due execution of his office or duty; then every person so offending shall be adjudged guilty of felony without benefit ❝ of clergy."

66

THE objection was, that the commitment did not state that the prisoner was armed, but only that he did certain acts with others armed; and therefore it did not appear that he was charged with any offence within the Act, which says, "that in case any person so armed with fire-arms or other "offensive weapons," &c.

THE ATTORNEY-GENERAL shewed cause against the rule, and contended, that it was not necessary within the meaning of the Act, that every person assembled should be individually armed; but that if a person be present, active, and concerned in the riotous proceedings which the legislature meant to prevent, he is within the Act: and he cited a case on the Black Act, in which it was contended, that when the face was covered with crape, or a black mask used, it was not having "a face blacked" within the meaning of the Act, but that the distinction was over-ruled.

PARTRIDGE, for the prisoner, cited the preamble of the Act, which says, "Whereas divers dissolute persons "have associated themselves, and entered into confedera"cies to support one another, and have appeared in great gangs, carrying fire-arms or other offensive weapons, &c. "and several officers of the customs and excise have been

"wounded, maimed, and some of them killed by the said

66

1783.

CASE.

persons so associated and assembled as aforesaid ;" and contended that it was clear that the legislature meant per- FRANKLYN'S sons with arms in their hands; and therefore, that the charge of maiming, as stated in the commitment, would not sustain it.

cher's Case,

LORD MANSFIELD. The prisoner does not deny by his Sed vide Fletaffidavit, that he was there with armed persons; and if he was active, it is not necessary under this Act that such individual should be armed.

2 Strange, 1166. and note (a) tó Hutchinson's

Case, post, Sept. Session, 1784.

THE KING against HAWKESWOOD.

CASE CXXIX.

AT Worcester Lent Assize 1783, the prisoner was indict- In an indictment for forged for forging a negotiable bill of exchange, purporting to ing a bill of be drawn by one Prattington on Sir Robert Herries and Co. AND ALSO, for forging two indorsements on the same; the one in the firm of Cox and Devy, the other in the name of James Haden. There were also the usual counts for uttering it, knowing it to be forged.

exchange, the bill may be given in evidence, although it be not stamped

pursuant to 23 Geo. III.

S. C. 2 East,

THE fact of its being a forgery, and that the prisoner C. 49. had negotiated it with a complete knowledge of that fact, 955. were very clearly proved; but upon producing the bill in See 2 Term evidence, it appeared not to be stamped pursuant to the Rep. 606. statutes of 22 Geo. III. c. 33. 23 Geo. III. c. 49. s. 14. and 23 Geo. III. c. 58. s. 11. which enact, "That no bill See 24 Geo. III. Sess. 1. "of exchange, &c. not stamped as those Acts direct, shall "be pleaded or given in evidence in any Court, or admit"ted in any Court to be good, or available in law or equity."

BALDWIN, the prisoner's Counsel, submitted to the Court, that the instrument in question, even supposing it to be genuine, was not a lawful bill of exchange, but a piece of waste paper, incapable of becoming the subject of either a

c. 7.

1783.

HAWKESWOOD'S CASE.

(1) But see the Case of Whitwell v. Dimsdale. Peake's nisi prius, page 167, 168.

fraud or felony; that the party who took it, must at the time have known that it was not a legal bill of exchange, or he must have been grossly negligent, for the defect is visible on the face of it.

MR. JUSTICE BULLER, who tried the prisoner, held, that the Stamp Acts above mentioned being revenue laws, and not purporting to alter the crime of forgery, could not affect the present question; and the Jury found the prisoner Guilty: but being a new point he respited the judgment, and reserved the case for the consideration of the JUDGES.

IN Easter Term 1783, the JUDGES (1) over-ruled the objection, and determined that the conviction was right (a); for the Stamp Act, in saying that a bill without a stamp "shall not be pleaded or given in evidence, or be available "in law or equity," means only that it shall not be made use of to recover the debt: besides, by the present Stamp Acts, the holder of a bill is authorized to get it stamped after it is made (b).

(a) In January Session 1784, John Lee was indicted for forging a bill of exchange, purporting to be made by Lord Townshend, Master-General of the Ordnance; and an objection was taken against producing it in evidence, because it was not stamped; but upon the authority of this decision, the objection was over-ruled; and the prisoner was condemned and executed. See also the Case of Collin Reculist, post, January Session

1796.

(b) But now see 31 Geo. III. c. 25. s. 19. contra. At the York Summer Assize 1795, one Morton was indicted for knowingly uttering a forged promissory note, which, on being produced in evidence, appeared to have been drawn on unstamped paper; and the case was saved for the opinion of the Judges, as well on the principal point as on the statute 31 Geo. III. c. 25. s. 19. which passed after Hawkeswood's case, which prohibits the stamp to be afterwards affixed. The question underwent much consideration, and was debated by the Judges in Michaelmas Term 1795, and in Hilary and Easter Term 1796. Two or three of the Judges doubted at first the propriety of Hawkeswood's case, if the matter were res integra, yet they all agreed that, that case being an authority in point, they must now be governed by it; and that the statute 31 Geo. III. c. 25. s. 19. made no manner of difference in the question: and most of the Judges maintained the principle in Hawkeswood's case to be well founded; for they held that the acts of parliament which had been referred to and relied on,

1783.

HAWKES

being mere revenue laws, meant to make no alteration in the crime of forgery, but only to provide that the instrument should not be available for the purpose of recovering on it in a Court of Justice; but it might be received in evidence for collateral purposes; and instanced the 6th and WOOD'S CASE. 10th sections of the Act which made the party drawing such a bill liable to the statute duties, and to a penalty of 201. in both which cases the bill must be used in evidence: that to constitute forgery it was not necessary that the instrument should be available: that though a compulsory payment by course of law could not have been enforced for want of the proper stamp, yet a man might equally be defrauded by a voluntary payment being lost to him: that if this were a sufficient defence, forged securities might be published on improper stamps with impunity, which would carry the mischief to an alarming extent: that the stamp itself might be forged, and it would be a strange defence to admit in a Court of Justice, that because a man had forged the stamp he ought to be excused for having forged the note itself, which would be setting up one fraud in order to protect him from the punishment due to another. 2 East, C. L. 955, 956.

THE KING against THOMAS MILLS.

CASE CXXX.

ventry Act.

S. C. 1 East, 397.

AT the Old Bailey in April Session 1783, Thomas Mills What shall be was indicted before MR. BARON EYRE, on 22 and 23 Car, considered as lying in wait II. c. 1. commonly called The Coventry Act, for that he under the Cowith force and arms, on purpose, and of malice aforethought, and by lying in wait, on the 29th March preceding, unlawfully, feloniously, and maliciously did make an assault on See the 43 one Thomas Brasier, with intent to maim and disfigure the said Thomas Brasier, and with a knife unlawfully and feloniously did slit his nose, with intention to maim and disfigure the said Thomas Brasier, against the statute, &c.

THE following facts appeared in evidence: Thomas Brasier was carman to Barwis and Co. wholesale grocers on Snowhill. About the time this offence was committed, large gangs of robbers and pickpockets infested this quarter of the metropolis, and committed almost nightly the most daring and wanton outrages upon persons walking along the streets. About eight o'clock at night, on the day laid in the indictment, Brasier was driving his cart, loaded with lumps of

Geo. III. c.

58.

1783.

sugar, down Holborn-hill, a little beyond St. Andrew's church, in his way to Snow-hill, when a person suddenly MILLS'S CASE. struck him a blow on the face, while several others surrounded him, making uncommon noises, and throwing great stones at him; but he got to the tail of the cart, which continued to go on, and with the stretch-staff defended himself as well as he could against their attacks, until he came near to the house of a Mr. Furneaux, opposite to Fleet-market, where they surrounded him with increased numbers, struck him several times on the head and shins, stabbed four holes in his coat, gave him several severe wounds in different parts of his body, and one through his ribs, when, being almost exhausted and no longer able to defend himself, he endeavoured to take shelter in Mr. Furneaux's house; but two women, who were part of this formidable gang of thieves, intercepted his passage, and prevented him. While he was standing in this situation on the foot-pavement, holding up his stick to defend his head from their blows, but without striking any of them, several of them repeatedly called out, "Damn you, "where are your knives?" upon which the prisoner, who was also one of the gang, made a sweeping stroke at him with a large knife, from one ear to the other, which cut the right side of his face, divided the upper part of his nose, (that is, the part which separates the two nostrils,) and laid open his cheek in such a manner that his teeth and gums might be seen through the wound quite from his nose to his ear, and the nose was cut quite through; the septum divided, each nostril touched, and the gristle laid down, the whole laying over his chin. It appeared also that he had two other cuts on the left side, by one of which part of the left ear had been taken off, and by the other a wound made underneath it. The sufferer could assign no other cause for this violent and cruel treatment, except that it was intended by way of revenge against him for having detected and beat off some thieves who had made an attempt to rob his cart near the same place on the preceding evening; for it could not be for the purpose of robbing the cart this evening, as none of the sugar was taken away.