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authority to be genuine, paid to her the deposit and interest in eight bank notes of 1007. each and other notes. Among the notes of 100l. was one, No. 72,799, dated the 19th of November, 1867.

On the 1st of July, 1868, the wife of Henry Allen left him and his house, and she and the prisoner were shortly afterwards found on board a steamboat at Queenstown on its way from Liverpool to New York, passing as Mr. and Mrs. Prince, Mrs. Allen then having in her possession nearly all the remainder of the notes obtained from the bank. The note for 100%., No. 72,799, was proved to have been paid away by the prisoner in payment for some sheep in May, 1868, and he said he had it from Mrs. Allen.

Upon this evidence, it was objected by the prisoner's counsel that the counts alleging the property in Henry Allen must fail, as the note had never been in his possession; and that as to the other counts, the evidence did not shew any larceny of the note from the bank by the wife, but rather an obtaining by forgery or false pretences by her, and that the receipt by the prisoner from her was not a receipt of stolen property. I held, however, that the forged order presented by the wife was, under the circumstances, a mere mode of committing a larceny against the London and Westminster Bank, and that the prisoner was liable to be convicted on the fourth count.

The jury found the prisoner guilty on that count, and I respited judgment, and reserved for the consideration of the Court the question whether the obtaining the note from the bank by Mrs. Allen, under the circumstances stated, was a larceny by her; if not, the conviction must be reversed.

Collins, for the prisoner.-This conviction on the above fourth count is bad, on the ground that the cashier of the bank had a general authority to part with the money of the bank, and did so part with it in this case to Mrs. Allen; and that being so, there was no larceny; and therefore the prisoner could not be guilty of receiving such money knowing it to be stolen, when, in fact, it was not stolen at all. The cashier had authority to part with the money, inasmuch as the payment fell within the ordinary scope NEW SERIES, 38.-MAG. CAS.

of his employment. In Story on Agency, s. 115, it is said, "If the cashier should pay to a bona fide holder a forged cheque drawn upon the bank, the payment could not be recalled, but would be obligatory, for it is within the duty of the cashier to answer drafts drawn on the bank; and the bank intrusts him with an implied authority to decide upon the genuineness of the handwriting of the cheque when presented for payment." This position is founded on The Bank of the United States v. the Bank of Georgia (1), and Levy v. the Bank of the United States (2).

[BLACKBURN, J.-The cashier is, no doubt, estopped from denying that he had possession of the money as to third persons; but the question here is rather upon the relation subsisting between the cashier and his employer.]

In Chambers v. Miller (3) the plaintiff presented a cheque at a bank which the cashier of the defendants (the bankers) took, and gave the plaintiff in return notes and gold. Whilst the plaintiff was counting the notes, one of the bankers, having discovered that the drawer of the cheque had no assets, demanded the money back, and it was held that the transfer of the money was complete, and that as between the plaintiff and the bankers there was no mistake at all, the mistake being between the defendants and their customer; and it was never doubted in that case but that the mistake of the cashier in paying the money bound the banker.

In The Queen v. Jackson (4) it was held that a pawnbroker's servant had a general authority from his master to act in his business, and to deliver up a pledge to the pawner; and when the servant, on receiving a parcel from the pawner which he supposed contained valuables he had just seen in the pawner's possession in a similar parcel, handed over the pledges, the receipt of the pledges by the pawner was considered not to be larceny. The Queen v. Adams (5)

(1) 10 Wheat. Rep. 332.

(2) 1 Bain Rep. 27.

(3) 13 Com. B. Rep. N.S. 105; 8. c. 32 Law J. Rep. (N.s.) C.P. 30.

(4) 1 R. & M. 119. (5) 1 Den. C.C. 38.

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shews that where the property and possession is parted with, though in consequence of a forged order, and in the belief that the order was genuine, there is no larceny. To the same effect is Atkinson's case (6). In The King v. Parks (7) a conviction for the larceny of goods was held wrong, where the shopman had been sent by the owner of the goods to the prisoner, who obtained the goods by giving two bills which proved to be worthless, although the jury found that the owner of the goods never intended to give the prisoner credit; and this was decided on the ground that the owner of the goods had parted with the property in them as well as the possession through the act of the shopman. So it is contended here, that the cashier of the bank had a general authority to exercise his judgment on the genuineness of notes or orders presented to him, and to pay them if he believed them to be genuine.

[BLACKBURN, J.-I do not think that the passage and cases from Story go quite so far. It seems there impliedly stated that the duty of the cashier was to know the notes of the bank, and does not go so far as to say that he must know a customer's signature.]

The Queen v. Jackson (4) seems to meet that observation, for there it was held that the assistant had a general authority to part with the pledges, and therefore he would have to exercise his judgment upon the value of the pledges given in exchange. In The Queen v. Barnes (8) a conviction for larceny of money was quashed, where the prisoner had obtained the money from the chief clerk of the prosecutors by producing a ticket to the effect that a sum of money had been paid by the prisoner for kitchen-stuff, the instructions of the clerk being to pay the prisoner the amount which should appear on the face of the ticket to have been paid. And this was on the ground that the clerk delivered the money to the prisoner with the intent of parting with it wholly to him; yet it could not have been contended that the prosecutors ever directly and specifically authorized the

(6) 2 East, P.C. 673.

(7) Ibid. 671.

(8) 2 Den. C.C. 59; s. c. 20 Law J. Rep. (N.S.) M.C. 34.

payment. In The Queen v. Essex (9) a conviction for larceny was quashed, where the prisoner had by a false representation received as pretended agent for a depositor a cheque for the amount of the deposit from the manager of a savings-bank, in consequence of a statement that the depositor had given notice of withdrawal, and that was on the ground that the manager parted with the possession and property in the cheque, which he could only have done by virtue of a general authority as

manager.

Poland (Douglas with him), for the Crown. The cashier had no power to part with the property in the money of the bank to Mrs. Allen under the circumstances of this case, and therefore she was guilty of a larceny of the money from the bank, and the prisoner was rightly convicted of receiving it knowing it to have been stolen. The Queen v. Adams (5) has no application, as there it was the owner himself who parted with the goods, and the same observation applies to Atkinson's case (6). In The Queen v. Jackson (4) the question was taken to be whether the owner intended to part with the property.

[BOVILL, C.J. The cashier is the only person who has to deal with the money.]

The King v. Longstreeth (10) is directly opposed to The Queen v. Jackson (4). There it was held that a carrier's servant had no authority to part with a parcel but to the right person; and therefore the obtaining a parcel from the porter by falsely pretending to be the person to whom it was directed, was larceny.

[BLACKBURN, J.-There it seems that the porter had no authority to deal with the property at all: he had only to do with the possession.]

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[LUSH, J.-But the absolute ownership there was not even in the carrier, but in the owners of the goods. BLACKBURN, J.-The porter had no discretion to judge who the consignee was, but only a specific direction to give it to that one person.]

In The King v. Wilkins (11) the obtaining a parcel of goods from a hatter's apprentice, to whom they were delivered for the purpose of being taken to a certain customer who had purchased them, by intercepting the apprentice and falsely pretending to be the customer intended, was held to be felony, as there was a taking from the possession of the master.

[BLACKBURN, J.-In that case the apprentice clearly had no authority to part with the possession when and as he did.]

In The King v. Small (12), a cheesemonger's shop-boy was held only to have the limited authority to part with goods on being paid for them, and the prisoner was found guilty of larceny for obtaining goods from the boy by giving him bad money in payment. The Queen v. Stewart (13) is to the same effect, excepting that there the servant was induced to part with the goods by receiving a valueless cheque in pay

ment.

[BLACKBURN, J.-But in that case the servant had no authority to part with the goods on receiving a cheque at all; his authority was limited to taking cash or an equivalent.]

BOVILL, C.J.-This conviction cannot be sustained. The distinction between larceny and the obtaining goods, &c. by false pretences is a material one, inasmuch as one is a felony and the other a misdemeanour. One of the elements of larceny is that the goods should be taken out of the possession and against the will of the owner. The cases cited by Mr. Collins seem to me to shew that property obtained from the owner, or from his servant, having a general authority to deal with it, though by false pretences, is not larceny. The cases cited by Mr. Poland, for the purpose of establishing the contrary proposition, were those in which

(11) 1 Leach, 586. (12) 8 Car. & P. 46. (13) 1 Cox, C.C. 174.

the servant had a limited or specific authority as to his power to dispose of them. In the present case I think that the cashier of the bank was acting within the scope of the authority conferred upon him by the nature of his employment, and he intended to part with the property in the money when he paid Mrs. Allen.

CHANNELL, B.-I am of the same opinion. The cases cited by Mr. Collins seem to me distinguishable from the cases cited by Mr. Poland, by reason of the nature of the authority conferred upon the servants or agents in them respectively. In this case, if the cheque had been genuine the cashier would have carried out his authority in paying it. Then having a general authority, if he make a payment by mistake the property in the money is not taken away by reason of such mistake.

BYLES, J. concurred.

BLACKBURN, J.-I lament the state of the law on this subject. The cases deciding that the property must be taken against the consent of the owner were decided when larceny was a capital offence; but this was afterwards qualified where the servant or agent had possession of the goods and they were taken against the consent of the servant; but this again was confined to such servants as had a general authority to part with the goods. There is a distinction between this case, and one where the authority is limited to parting with the possession only, as distinguished from the property. The difficulty in these cases is to decide within which class of cases any particular case comes. I think that the carrier's porter in The King v. Longstreeth (10) had no authority to deal with the property at all, and it is to be observed that the same Judges decided that case as decided The Queen v. Jackson (4), to which case it was said to be opposed. There, I think, there was a general authority in the pawnbroker's assistant to part with the pledges, and the other cases came within the same principle. The cashier of a bank has a discretion to see whether a cheque is genuine, and he has, no doubt, an authority to pay money in respect of a genuine cheque, but he has with it a general authority to part with the money as regards third persons.

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The criminal jurisdiction of the Admi ralty of England extends over British ships, not only on the high seas but also in rivers, below the bridges, where the tide ebbs and flows, and where great ships go, though at a spot where the municipal authorities of a foreign country might exercise concurrent jurisdiction, if invoked.

A foreigner was convicted of manslaughter at the Central Criminal Court, committed on board a British vessel, in the river Garonne, within the boundaries of the French Empire, about 35 miles from the sea, and at a spot about 300 yards from the nearest shore, within the flow and ebb of the tide; and the conviction was held right, inasmuch as it was a place within the jurisdiction of the Admiralty of England, which that Court had jurisdiction to try under 4 & 5 Will. 4. c. 36. s. 22.

The following CASE was reserved by Byles, J., sitting at the Central Criminal Court, at the last October Sessions.

James Anderson, an American citizen, was indicted for murder on board a vessel belonging to the port of Yarmouth, in Nova Scotia. She was registered in London, and was sailing under the British flag. At the time of the offence committed, the vessel was in the river Garonne, within the boundaries of the French Empire, on her way up to Bordeaux, which city is, by the course of

Bovill, C.J., Byles, J., Blackburn, J., Channell, B., and Lush, J.

the river, about 90 miles from the open sea. The vessel had proceeded about half way up the river, and was at the time of the offence about 300 yards from the nearest shore; the river at that place being about half a mile wide. The tide flows up to the place and beyond it. No evidence was given whether the place was or was not within the limits of the port of Bordeaux. It was objected, for the prisoner, that the offence having been committed within the empire of France, the vessel being a colonial vessel and the prisoner an American citizen, the Court had no jurisdiction to try him. I expressed an opinion unfavourable to the objection, but agreed to grant a case for the opinion of the Court for Crown Cases Reserved. The prisoner was convicted of manslaughter.

M. Williams, for the prisoner.—It is submitted that the tribunal of the municipality of France, within whose jurisdiction the offence was committed, was the only tribunal by which the prisoner could have been tried, and that the Central Criminal Court had no jurisdiction, under the 4 & 5 Will. 4. c. 36. s. 22. (1), to try the prisoner for this offence. The question seems to turn on the construction to be put upon the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104. s. 267), which enacts that "all offences against property and person committed in or at any place either ashore or afloat out of Her Majesty's dominions by any master, seaman, or apprentice who at the time when the offence is committed is or within three months previously has been

(1) "And whereas it is expedient that persons charged with certain offences committed on the high seas and other places within the jurisdiction of the Admiralty of England, should speedily be brought to trial; be it therefore enacted, by and with the authority aforesaid, that it shall and may be lawful for the Justices and Judges of Oyer and Terminer and Gaol Delivery to be named in and appointed by the commissions to be issued under the authority of this act, or any two or more of them, to inquire of, hear, and determine any offence or offences committed or alleged to have been committed on the high seas, and other places within the jurisdiction of the Admiralty of England, and to deliver the gaol of Newgate of any person or persons committed to or detained therein for any

employed in any British ship shall be deemed to be offences of the same nature respectively, and be liable to the same punishments respectively, and be inquired of, heard, tried, determined, and adjudged in the same manner and by the same Courts and in the same places as if such offences had been committed within the jurisdiction of the Admiralty of England." The seaman mentioned in that section must be confined to a British seaman. Sir G. C. Lewis, on Foreign Jurisdiction, p. 24, commenting on the above 267th section, says, "It seems that under this provision a theft, or even a common assault, committed by a British seaman upon a native in a foreign port, might be the subject of an indictment in England" but he adds, "It is possible, however, that the very extensive terms of this enactment might receive some limitation from judicial interpretation."

[BLACKBURN, J.-The meaning of the section may be, that a foreign seaman serving on board a British ship would be a British seaman. CHANNELL, B.—I understand Sir G. Lewis in the above passage to be rather commenting on the meaning of the words "property" and "persons" in the section. BLACKBURN, J.-In this view of the matter I think the question is, whether a foreigner employed on board a British ship owes a temporary allegiance to the British Queen, so as to become a British seaman within the meaning of the Merchant Shipping Act.]

The 18 & 19 Vict. c. 91. s. 21. provides, that "if any person, being a British subject charged with having committed any crime or offence on board any British ship on the high seas, or in any foreign

offence or offences alleged to have been done and committed upon the high seas aforesaid within the jurisdiction of the Admiralty of England; and all indictments found and trials and other proceedings had and taken by and before the said Justices and Judges of Oyer and Terminer and Gaol Delivery shall be valid and effectual to all intents and purposes whatsoever; and that it shall and may be lawful for any three of the said Justices and Judges of Oyer and Terminer and Gaol Delivery to order and direct the payment of the costs and expenses of such prosecutions in manner prescribed and directed by the before recited act, 7 Geo. 4."

port or harbour, or if any person, not being a British subject charged with having committed any crime or offence on board any British ship on the high seas is found within the jurisdiction of any Court of justice in Her Majesty's dominions, which would have had cognizance of such crime or offence if committed within the limits of its ordinary jurisdiction, such Court shall have jurisdiction to hear and try the case as if such crime or offence had been committed within such limits." A ship bearing the British flag is a quasi part of the dominions or territory. Then, does any one coming within it owe temporary allegiance?

[BOVILL, C.J.-M. Ortolan, in his treatise upon Les Règles Internationales et Diplomatie de la Mer, tom. 1. cap. xiii. p. 270, 4th ed. 1864, is a strong authority against you. M. Ortolan says, "M. Wheaton, dans son Traité de Droit International, d'accord en cela avec d'autres écrivains, formule le principe général que 'Les bâtiments marchands d'un état quelconque entrés dans les ports d'un autre état, ne sont pas exempts de la juridiction locale, à moins d'une convention expresse; et qu'ils le sont seulement en ce que a été prévu par une telle convention.' Suivant la doctrine Française, cette proposition est très absolue et susceptible de quelques restrictions. Voici comment, en France, à défaut de convention spéciale, est entendue et pratiquée la règle de droit international sur cette matière. Notre législation établit, quant aux faits que se passent à bord des navires de commerce dans un port ou dans une rade en pays étranger, une distinction entre: 1o, d'une part les actes de pure discipline intérieure du navire: ou même les crimes ou délits communs commis par un homme de l'équipage contre un autre homme du même équipage lorsque la tranquillité du port n'en est pas compromise; et 2°, d'autre part, les crimes ou délits commis même à bord contre des personnes étrangères à l'équipage ou par tout autre que par un homme de l'équipage; ou même ceux commis par les gens de l'équipage entre eux, si la tranquillité du port en est compromise. A l'égard des faits de la première classe notre législation déclare que les droits de la puissance à laquelle appartient le navire doivent être respectés; que l'autorité locale, par conséquent, ne doit pas,

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