1784. TURNER'S CASE. (1) Ante, page 89, Case 50 intended as mere hay-lofts, did not, in contemplation of law, form such mansions or dwelling-houses as to become the subject of burglary. MR. JUSTICE GOULD and MR. BARON PERRYN conceived, that the circumstance of their being situated over the coachhouse and stables, would not alter the nature of the case. They were to all intents and purposes the habitation and domicile of the prosecutor and his family; for they are perfectly distinct and unconnected with those rooms which were inhabited by other tenants; and although the two rooms which were broke open happened to communicate with each other only by means of the landing-place, or platform, yet they may well be considered as the mansion-house of the occupier. The door at the bottom of the staircase, though unfastened, is an outer door common to all the inmates under the same roof; and the respective doors to the rooms of each inmate are the safeguards or inner doors of their several inhabitants; and cited the case of the King v. Rogers (1), determined Michaelmas Term 13 Geo. III.-MR. JUSTICE BULLER did not give any opinion, but he said he would save the case for the consideration of the TWELVE Judges. THE Jury found the prisoner NOT GUILTY of breaking and entering in the night-time; but if the JUDGES should be of opinion, That the place where the prosecutor inhabited was a dwelling-house, then GUILTY of stealing to the value of forty shillings out of the dwelling-house; and if the JUDGES should be of opinion, That it was not a dwelling-house, then GUILTY of stealing, but not in the dwelling-house. IN the July Session following the prisoner was put to the bar, and informed by MR. REYNOLDS, Clerk of the Arraigns, that his case had been considered by the JUDGES; and that they were of opinion, That he was guilty of the felony charged against him in the indictment; and had Judgment for stealing to the value of forty shillings out of the dwellinghouse. 1784. THE KING against WOOLDRIDGE. CASE CXLIX. What act counterfeit money within the meaning of 8 & 9 Will. III. c. AT the Old Bailey February Session 1784, the prisoner was indicted before MR. JUSTICE GOULD, present MR. BARON PERRYN, on the statute of 8 & 9 Will. III. c. 26. s. 6. which enacts, "That whoever shall take, receive, pay or put off 66 any counterfeit milled money, or any milled money whatsoever, unlawfully diminished, and not cut in pieces, at or "for a lower rate or value than the same by its denomina- 26. "tion doth or shall import, or was coined or counterfeited S. C. 1 East, "for, shall be guilty of felony." 66 Ir appeared in evidence, that the prisoner had carried a large quantity of counterfeited milled money, of the likeness and similitude of shillings, to the house of a Mrs. Levey, which she agreed to take and receive from him, and which he agreed to pay and put off to her at the rate of Twenty-nine shillings for every Guinea. In pursuance of this bargain the prisoner laid a heap of counterfeit shillings on a table, and Mrs. Levey proceeded to count them out at the rate beforementioned. She had counted out three parcels containing Eighty-seven counterfeit Shillings, for which she was to pay the prisoner Three Guineas. But before she had paid him, and while the counterfeit money lay thus exposed upon the table, the officers of justice entered the room and apprehended them. Mrs. Levey was admitted an evidence for the Crown; and she swore that she had bought the three parcels of Shillings, and was going to pay the prisoner Three Guineas for them at the moment they were detected. It was contended on the part of the prisoner, that the indictment, pursuing the words of the statute, alleged this substantive fact, "that the prisoner feloniously did put off "the counterfeit money to Elizabeth Levey;" but that the evidence did not prove a putting off, within the true intent and meaning of the legislature; for that before the offence could be committed, it was necessary that the contract or agreement to pay and put off on the one hand, and to take and receive on the other, should be finally completed and. 179. 1784. WOOLD- ended; which in this case had not taken place, Mrs. Levey not having paid the money to the prisoner. ON the side of the Crown it was contended, that the prisoner having sold and given Mrs. Levey possession of the counterfeit Shillings, it was on his part a completion of the contract; for he had thereby done every thing that he was enabled to do in "paying and putting off," and that it remained entirely with Mrs. Levey to fulfil the subsequent part by taking and receiving the counterfeit money which he had so paid and put off. THE COURT. It is clear beyond a doubt, that the offence charged in this indictment must be measured by the terms of the statute upon which it is founded; and whatever progress the person indicted may have made towards putting off the counterfeited coin, if the act of putting off is not finally completed, it does not amount to the crime expressed. An ardent wish to abolish an illegal practice is certainly laudable, but JUDGES must take care that laws which affect the liberties and lives of their fellow-subjects are not stretched beyond their true and legal import. The practice of coining was formerly notorious in the county of York; and a general anxiety prevailed to bring every offender to punishment. A man was indicted at the Assizes, before MR. JUSTICE GOULD, for coining a Guinea. The impressions both on the head side of it, and the reverse, were perfect and complete. It appeared, however, that the prisoner had delivered it to a person to get it changed, and that from some aukward roughness upon the edges of it, nobody would take it. The learned Judge from this circumstance conceived, that the treason, though brought very near to a completion, was not quite completed; and the case was referred to the consideration of the TWELVE JUDGES, who were unanimously of opinion, that the offence was not committed (1). In the present case the 2 Black. Rep. operative words of the Act of Parliament are, "take, receive, pay, or put off;" and these words must be construed according to their popular acceptation. Now is not the common meaning of the expression, " I have put off such a piece "of coin," that the party has got rid of it? Suppose a person, (1) The King v. Varley, 682. Ante, page 76, WOOLD- CASE. having looked out goods at the shop of a tradesman, is about 1784. to pay for them, and while the goods lie packed up upon the counter, the tradesman discovers that the money his customer is paying is counterfeit ; is the money in this case either taken or received by the tradesman, or paid or put off by the customer? Certainly it is not. By this detection the meditated offence is rendered incomplete, and the intention to pay and put off the money disappointed. It did not reach its effect; it was stopped before it had arrived at the goal. But the legislature have themselves decided this question by a subsequent statute, which provides for the offence of uttering and tendering in payment: for it is enacted by 15 Geo. II. c. 28. "That whoever shall knowingly utter or tender in payment 68 any false or counterfeit money, shall suffer six months' imprisonment, and find sureties for good behaviour for six "months more, &c." THE prisoner was acquitted of this charge; but he was convicted upon another indictment, of having put off a counterfeit Half-Guinea at a lower rate than it denominated: and having been before convicted of a felony, and allowed the benefit of clergy, the Counsel for the Crown, on the prisoner's pleading that privilege a second time, filed a coUNTER-PLEA of record against its being allowed; in consequence of which the prisoner received judgment of death in the September Session following. THE KING against JOHN JACOBs and others. AT the Old Bailey in February Session 1784, John Jacobs, a It appeared that when the prisoners were carried before Justice of the Peace, Samuel Selshire was admitted to give evidence against Jacobs and Macdonald, and that they all made a full confession of their guilt; but it did not appear law requires.-See Rex v. Fearshire, ante, page 202. CASE CL. Parole evi dence cannot be given of the examination of pri soners taken before the Ma gistrate; for it must be in tended that it was put into writing, as the Case 101. 1784. JACOBS'S that either the information of Selshire, or the confession of the other two prisoners had been taken down in writing. THE prosecutor attempted to give vivâ vocè testimony of their confessions. Mr.Reynolds. THE Clerk of the Arraigns said, it had been the constant practice of the Court, that when the Justice has neglected to take a written examination, parole testimony of it may be admitted; but that if he has reduced such examination into writing, no other evidence of it could be received. THE COURT. The Legislature, by the statutes 1 and 2 Phil. and Mary, c. 13. s. 4. and 2 and 3 Phil. and Mary, c. 10. has ordered, "That Justices of Peace, when any prisoner "is brought before them on a charge of felony, shall take "the examination of the said prisoner, and the information "of them that bring him, of the fact and circumstances "thereof; and the same, or as much thereof as may be necessary to prove the felony, shall be put in writing "within two days after the examination, and certified to the "next general Gaol Delivery." The statutes do not leave this matter to the option of the Magistrate, but they say that he shall do it; and, whatever may have crept into practice, the directions of this law ought not to be dispensed with. The rule of law is the compass by which the Court ought to be guided. What a prisoner says in other places may undoubtedly be received upon viva voce testimony; but as the law requires that his examination before the Magistrate shall be reduced into writing, and returned to the Court, the particulars of such examination cannot be given in evidence vivá voce, unless it be clearly proved, that in fact such examination never was reduced into writing (a). (a) In July Session 1784, John Hinxman was tried for a felony before MR. JUSTICE ASHHURST. The prisoner had made a confession before the Justice of the Peace, but his examination was not returned, and it was uncertain whether it had ever been reduced into writing. It was objected on the authority of Jacobs's Case, that parole evidence could not be given of any thing which had been disclosed by the prisoner before the Magistrate, for that it would be permitting his negligence and breach of duty to operate to the prejudice of the prisoner; as a witness by selecting only |