therefore stopped the case, and discharged the jury, that she might have an opportunity of being instructed upon that point before the next assizes: but a doubt having occurred to the learned Judge, whether he did right in discharging the jury, he thought it proper to submit the point to the consideration of the Judges. Vide Rex v. Roberts, Kel. 25. Rex v. Kinloch, 18 How. St. Tr. 395.

In Easter term, 1825, the Judges (BEST, L. C. J., and LITTLEDALE, J. absent) met and considered this case; they thought the discharge of the jury improper, and that an acquittal should have been directed; an application for a pardon was therefore recommended. (a)

(a) Vide Rex v. White, 1 Leach, C. C. 430, and in notis, 4th edit. 2 Bac. Ab. 577, in notis, 5th edit.

REX v. JOHN STOCK.

It is larceny for a person hired for the special purpose of driving sheep to a fair, to convert them to his own usc, he having the intention so to do at the time of receiving them from the owner.

THE prisoner was tried before Mr. Justice PARK at the Taunton Lent assizes in the year 1825, for stealing ten sheep.

It appeared from the evidence of the prosecutor, that on the 26th August, 1824, he saw the prisoner at Bristol fair, and hired him to drive fifty sheep for him from Bristol to Bradford fair. This was on the Thursday; and the prisoner, with the sheep, was to meet the prosecutor on the following Sunday evening at the turnpike-gate nearest to Bradford.

The prisoner never had any authority to sell the sheep, nor to do any thing else, but to drive them to Bradford, for which he was to receive two shillings and sixpence per day. The prosecutor went on the Sunday to the

turnpike-gate, but the prisoner never came there, nor was he at Bradford fair the next day.

The prosecutor found forty of his sheep in a field at Wellow, quite in an opposite direction to Bradford, and the prisoner had sold ten of the fifty, the very morning after he had received them for the prosecutor, and had never gone at all towards Bradford.

The prisoner never was a servant of the prosecutor's, but had been occasionally employed to drive sheep, and he never had authority to sell, though upon this occasion he told the purchaser, who asked if he had authority to sell, that he had, and had frequently sold cattle for the prosecutor, and had sold thirty ewes that morning for him.

Upon this evidence the jury found the prisoner guilty; and, in answer to a question put by the learned Judge, they said that they were of opinion that the prisoner, at the time he received the sheep, intended to convert them to his own use, and not to drive them to Bradford.

The prisoner had no counsel; but a doubt occurring to the learned Judge, whether, as the delivery to the prisoner was not at his desire, or at his request, he being hired by the owner to take charge of them for a special purpose, his not carrying that purpose into execution, but converting them to his own use, and intending to do so, (as the jury by their verdict found,) at the moment of receiving them from the owner, amounted to felony; the learned Judge respited the sentence in order to take the opinion of the Judges upon the above case.

In Easter term, 1825, the Judges met and considered this case. They were unanimously of opinion that the conviction was right. (a)

(a) Paradice's case, 2 Russ. 1218, S. C. 2 East, P. C. 565, and cited in Wilkin's case, 1 Leach, C. C. 523, 4th edit. Bass's case, 1 Russ. 1219, S. C. 2 East, P. C. 566. 1 Leach, C. C. 251, 523, 524. Rex v. Carr, Russ. & Ry. C. C. R. 198. Rex v. Spencer, ibid. 299.

REX v. PETER CARROLL.

Property left by mistake at a house, and delivered to the occupier, under the supposition that it was for one of the persons in the house, is entitled to the protection of the house, so as to make the stealing of it, if of 40s. value, by a lodger therein, under pretence that it is his, a capital offence.

THE prisoner was tried before Mr. Justice PARK, (present ABBOTT, L. C. J.,) at the old Bailey sessions, April, 1825, on an indictment for stealing goods of Margaret Douglas, widow, in the dwelling-house of Joshua Davidson to more than the value of forty shillings.

It appeared in evidence that Mrs. Douglas, whose goods were stolen, lodged in the house of a Mrs. Speed, No. 38, Rupert-street; that she was expecting the goods in question to come by the Hanwell coach, on Wednesday, the 16th February, 1825, but they never arrived. It further appeared that the prisoner had, on Tuesday, the 15th of February, taken a lodging at Joshua Davidson's, No. 33, in Rupert-street; but though he took a box there on that day, Mrs. Davidson (the wife of Joshua Davidson) never saw him again till Thursday the 17th of the same month, and she was not acquainted with his name. In the mean time, between the 15th and 17th of February, Mrs. Douglas's two boxes, containing the goods in question, were brought to Mrs. Davidson's, 33 Rupertstreet, by a porter from the Green Man and Still, (but whether by accident or collusion with the prisoner was not proved, for the porter, though called upon his recognizance, did not appear,) and she not knowing the prisoner's name took them in, and paid one shilling and six pence for the porterage. When the prisoner came on the 17th of February, Mrs. Davidson told him what had arrived, and what she had paid for carriage; the prisoner 12

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said, "it was all right," and he would pay her again. The boxes were put into his room, and he went out two or three times in the course of the evening, carrying bundles each time, and when he went out the third time he returned no more, and Mrs. Douglas's boxes were found entirely ransacked.

The jury found the prisoner guilty, but the Lord Chief Justice and the learned Judge who tried the prisoner both doubted whether these goods were sufficiently under the protection of the house to constitute the capital part of the offence, and upon which point the case was submitted to the opinion of the Judges.

In Easter Term, 1825, the Judges (BEST, L. C. J., and LITTLEDALE, J., absent) met and considered this case, and held that the goods were under the protection of the dwelling-house, and that the capital conviction was therefore proper. (a)

(a) Vide 2 Russ. 982, 983.

REX v. THOMAS DUNKLEY and Others.

An indictment on 4 G. 4, c. 54, s. 5, for demanding money, &c., must show by whom it was demanded. And an indictment on the same statute for threatening to accuse, &c., must show who was threatened.

THE prisoners were tried and convicted before Mr. Baron HULLOCK at the Leicestershire Lent Assizes in the year 1825, on an indictment framed upon the 4 G. 4, c. 54, s. 5. (b)

(b) The 4 G. 4, c. 54, s. 5, repeals the 7 G. 2, c. 21, and enacts, that from and after the passing of this act, if any person shall maliciously assault any other person, with intent to rob such other person, or shall by menaces, or by force, maliciously demand

The learned Judge was of opinion that the first count of the indictment was not sustained by the evidence, and the case therefore went to the jury upon the two last counts, and upon these counts the prisoners were found guilty.

The second count was as follows: and the jurors aforesaid, &c., that the said Thomas Dunkley, &c., afterwards, to wit, &c., with force and arms, at, &c., maliciously and feloniously by menaces did demand the moneys of the said John Axx with intent the said moneys of the said John Axx, then and there feloniously to steal, take, and carry away against the statute, &c., and against the peace, &c.

The third and last count stated, that the jurors aforesaid, &c., that the said Thomas Dunkley, &c., afterwards, to wit, &c., with force and arms, at, &c., maliciously and feloniously did threaten to accuse the said John Axx of the crime of buggery, being a crime punishable by law with death, with a felonious intent to extort money from the said John Axx, and the said money then and there feloniously to steal, take, and carry away, against the statute, &c., and against the peace, &c.

The prisoners being convicted, it was objected in arrest of judgment, that the second count did not state that any demand of money was made upon John Axx; the moneys of John Axx are alleged to have been demanded, but from person they were demanded is not stated; that it

what

money, security for money, goods, or chattels, wares or merchandise of any other person, with intent to steal the same, or shall maliciously threaten to accuse any other person of any crime punishable by law with death, transportation, or pillory, or of any infamous crime, with a view or intent to extort or gain money, &c., from the person so threatened, or shall procure, counsel, aid or abet the commission of the said offences, or of any of them, every person so offending, being thereof lawfully convicted, shall be adjudged guilty of felony, and shall be liable, at the discretion of the Court, to be transported for life, or for not less than seven years, as the Court shall adjudge, or be imprisoned and kept to hard labour in the common gaol, or house of correction, for any term not exceeding seven years.