450 Local Courts.-Income Tax.-Points in Criminal Law. tram! to the lawyer, and then, in common fair- Ellangowan! Ride your ways, Godfrey Berness, to consider whether he is at present This day have ye quenched seven overpaid. Try the profession by any test, smoking hearths, see if the fire in your ain applied to any other calling. Is it in num-riven the thack off seven cottar-houses-look parlour burn the blither for that. Ye have if your ain roof-tree stand the faster. Ye may stable your stirks in the shealings at Durncleugh-see that the hare does not couch on the hearthstane at Ellangowan." But POINTS IN CRIMINAL LAW. STEALING POTATOES. penalties for the two first offences; and for the third was constituted a felony, liable to transportation for seven years; but these statutes are repealed by stat. 7 & 8 Geo. 4, c. 27; and the offence is now by stat. 7 & 8 Geo. 4, c. 29, ss. 38 & 39, if the injury is felony, punishable as larceny. bers, in talent, in station, in actual capital, inferior? And yet do not all other grades examine all measures by their operation on their own interests? What farmer, what manufacturer, what surgeon, what clergyman scruples to avow boldly his dislike to any particular measure as injurious in his opinion to his own especial interests. if the lawyer ventures to take this ground, By stat. 6 Geo. 3, c. 48, and 13 Geo. 3, c. 33, no words can be found with some to express the stealing of any root, shrub, or plant, their indignation at his selfishness. He by day or night, was subject to pecuniary alone, forsooth, must be sacrificed without a murmur on his part... He must be ready without a sigh, to offer himself at all times for the good of his country. What are his profits, that they should be protected? What are his early up-risings and late toilings, that they are to be considered? What are his toilsome hours, his anxieties, his A police officer found N. with potatoes watchings, his fastings? Who values his under his shirt, which had been recently long years of labour, or his income gained dug from the ground, and apprehended inch by inch in the teeth of a thousand him. The policeman called O. to assist competitors? Who cares for his "young him; O. did so, and a rescue being atbarbarians?" Why is his capital to be tempted O. was going away and was struck protected? The tiller of the soil, the ma- by A., who went away; and O. was afternufacturer, the tradesman, or merchant, of wards killed by other persons, who atwhatever class, may meet openly and comtempted the rescue. Mr. Justice Coltman plain directly, but the lawyer must quietly said to the jury, "You will be relieved submit, and be thankful that he is spared from inquiring into the charge of murder, at all, and left the privilege of maintaining because an irregularity has taken place in the law, and assisting every other class of the conduct of the policeman in the first the state in obtaining and preserving their just rights. This is very much the kind of doctrine which we hear laid down in some quarters, but more especially with reference to Local Courts. We are not prepared to admit it; further, we do not think there is any necessity in submitting to it when reduced to practice, if the profession will only awake to their own rights. We object to Local Courts, because they are injurious to the common-weal; we object to them further, because they are injurious to the profession. We object to an income tax levied to an equal amount on income derived from professions and trades, and on property; because it is injurious to the common-weal, and furthermore, because it is injurious to the profession. We do not hesitate to avow this, and we are ready to do battle on this broad ground. We conclude these remarks in the lan guage of Meg Merrilies, which we venture to address to Sir Robert Peel should he persist in the unmitigated income law "Ride your ways, ride your ways, Laird of instance. In law he had no right to apprehend a person on suspicion of having stolen growing potatoes out of a garden, as the law does not regard such an offence as felony, unless indeed the person had been previously fined before a magistrate for a similar offence. Had the potatoes been stolen from a place of deposit, such as a storehouse or warehouse the case would have been very different. Reg. v. Phelps, 1 Car. & Marsh, 180. LARCENY ON ELOPEMENT. money In the case of Rex v. Tolfre, M. C. C. 243, took away the wife of the latter, together a person who lodged with the prosecutor with and plate of the prosecutor, to the value of 1501., and wearing apparel and goods to the value of 701. more: with this property the prisoner and the prosecutor's wife proceeded to the prisoner's lodgings, his wife) till he was apprehended. The where they lived together (she passing as wife of the prosecutor who was called as a witness for the prisoner, and swore that there was none of the property but what Points in Criminal Law.-Practical Points of General Interest. 451 PRACTICAL POINTS OF GENERAL PROPRIETORY CHAPEL. she had herself taken or given the prisoner to take. The twelve judges held this was larceny, for though the wife consented, it must be considered that it was done invito domino. In a later case, in which the circumstances IT has been recently held that a license granted were nearly similar, the following rules were by a bishop to a clergyman, to officiate in a laid down by Mr. Justice Coleridge. There proprietory chapel, is revocable at the will is such a unity of interest between husband of the bishop. The license was to perform the and wife, that ordinarily the wife cannot office of minister of Charlotte Street Chapel, steal the goods of the husband by the deli- Pimlico, (the consent of the rector having very of the wife; and if the wife deliver the been obtained) "in preaching the word of God, and in reading the common prayers, and pergoods of the husband to an indifferent per- forming all other ecclesiastical duties belongson, for that person to convert them to his ing to the said office, according to the form own use, this is no larceny; but if the prescribed in the book of Common Prayer." person to whom the goods are delivered by It does not appear," said Dr. Lushington in the wife be an adulterer it is otherwise, and deciding the question, "from the articles, that an adulterer can be properly convicted of the bishop had any particular reason for restealing the husband's goods, though they voking the license in this case; they are silent be delivered to him by the wife. If no adopt this measure; all that is prescribed to as to the motives which induced the bishop to adultery has actually been committed by the Court is an act done by him purporting to the parties, but the goods of the husband revoke the license he had granted. The question are removed from his house by the wife and therefore is, whether the bishop has an absothe intended adulterer, with an intent that lute right at his own exclusive direction to rethe wife should elope with him, and live invoke such a license." "I think the principle adultery with him; this taking of goods is, in point of law a larceny. If a wife elope satisfied that he took any on which the law of the church stands in this matter is this:—no clergyman whatever of the Church of England, has any right to officiate in any diocese, in any way whatever as a clergyman of the Church of England, unless he has a lawful authority so to do, and he can only have that authority when he receives it at the hands of the bishop, which may be conferred in various ways; as by institution (in the case of a benefice) by license, when the party is a perpetual curate; and by license when the clergyman officiates as stipendiary curate. with an adulterer who takes her clothes with them it is a larceny; and it is as much a larceny to steal her clothes which are her husband's property, as it would be to steal any thing else that was his property. If on the trial of a man for larceny the jury are of the prosecutor's goods, then there being a criminal intention, or there having been a criminal act between the prisoner and the prosecutor's "I need not state that the ancient canon wife, the jury ought to convict, even though law of this country knew nothing of proprietory the goods were delivered to the prisoner by chapels, or unconsecrated chapels, at all. The the prosecutor's wife; but if the jury should necessity of the times, the increase of populathink that the prisoner took away the goods tion, and want of accomodation in the churches merely to get the wife away from her hus- and chapels in the metropolis, and other large band as a friend only, and without any this kind, and to the licensing of ministers of towns, gave rise to the creation of chapels of reference to any connexion between the the Church of England to perform duty thereprisoner and the wife, either actual or in. The license granted by the bishop on such intended, they ought to acquit.-Reg v. occasions, emanates from his episcopal authoTollett, 1 Car. & Marsh, 112. rity. He could not, however, grant such a license without the consent of the rector or vicar of the parish, for the cure of souls beis the consent of the rector obtained, not to an longs exclusively to the rector or vicar. Here confer a nondescript titl, that of minister of ordinary license to a stipendiary curate, but to an unconsecrated chapel. The bishop, therefore, confers this license by virtue of his episcopal authority. What is to prevent his revocation of it at any time he may think fit? Is this a license, which will not only be good against him, but is it to prevail against any successor who may come after him? It is a license granted only from the exigency of the moment, and for no other reason whatever. Supposing, by new powers being made under the Church Building Acts, other churches and The portion of the judgment as to taking the clothes of the wife is as follows: "Mr. Carrington, (the counsel of the prisoner) has said, that if the wife eloped with an adulterer, it would be no larceny in the adulterer to assist in carrying away her clothes. I do not agree with him, for I think that if she elopes with an adulterer, who takes her clothes with them, it is larceny to steal her clothes, which are her husband's property, just as much as it would be larceny to steal her husband's wearing apparel, or any thing else that was his property." This dictum is of considerable importance, as in almost every elopement the wife takes her own clothes. 2H 2 452 Practical Points of General Interest.-New Bills in Parliament. chapels were to be consecrated according to the law of the Church of England throughout the land; would not the necessity for these unconsecrated chapels cease? And, under such circumstances, could the grantee of such a license continue to officiate, in direct opposition to the bishop? It is not necessary to examine the expediency of vesting such a power in the bishop; the question is, what is the law? I think it is incumbent upon those who assert the affirmative; that is, who assert that it is in the power of the bishop to confer a permanent right, as against himself, to shew that such a power has been conferred by the ecclesiastical law. I am of opinion that no such power has been granted; that it is not even in the power of the bishop himself to estop himself; but that he is bound, according to the exigency of the case, to revoke such a license, if he thinks the good of the church requires it. I have heard no authorities cited on one side or the other, which require the examination of the Court, to ascertain their applicability, and on general principles I am of opinion that the bishop has authority to revoke such a license as this, according to his own discretion; he has exercised that discretion; he has exercised that discretion in this case; a discretion not examinable by me; and I have no alternative but to admit the articles." Hodgson v. Dillon, 2 Curt. 388. MASTER AND SERVANT. or his servant was the cause of injury? That there was something wrong was evident; but if any of the servants of the establishment did anything to the pipe or to the gas before the work was finished, the defendant is not liable. Again, if you think the extra work of which the defendant's witness has spoken, and from defect in which it is said this accident occurred, was done by that witness without the defendant's knowledge, then the defendant is not answerable for the injury thus occasioned. If, however, you think this work was undertaken by the defendant, and that there was negligence then your verdict must be for the plaintiff. Verdict for the plaintiff, damage 5001. Rapson v. Cubitt, 1 Car. & Marsh, 64. NEW BILLS IN PARLIAMENT. SPECIAL PETTY SESSIONS, A BILL has been brought in by Mr. G. Bankes and Mr. Estcourt, "To make further Provision for the holding of Special Petty Sessions, and for providing that in certain Cases, where Persons accused shall voluntarily desire to plead Guilty, it shall be competent to the Magis trates at such Sessions to award the Sentence of the Law." It recites that by the laws now in force, persons apprehended upon certain AN action on the case will lie against a master for an injury done through the negligence or charges of larceny, felony, and misdemeanor, unskilfulness of the servant acting in his mas- are committed to prison to take their trials at ter's employ, as where the servants of a carman ran over a boy in the streets, and maimed him, the assizes or general or quarter sessions of by negligence, an action was brought against the peace, and such persons frequently underthe master, and the plaintiff recovered. 1 go long periods of imprisonment before their Raym. 739. So when the servant of A., with trials can take place, and such trials are athis cart ran against the cart of B., which contained a pipe of wine, whereby the wine was tended with considerable expense and inconspilled, an action was brought against A., the venience, and in many of such cases it is the master, and holden to be maintainable. Id. desire of such persons to make confession of Selw. N. P. 1097, 10th edition. In a late case an action was brought for the negligence of their guilt in respect of such charges: and defendant's servant, and consequent injury to that it is most conducive to the ends of justice, plaintiff. Plea, that the defendant was not employed to make the alterations (those through and to the reformation of offenders, that perwhich the injury occurred). The defendant sons, when proved by their own voluntary had been employed by a club (the Clarence Club) to make alterations and suggestions in confession to be guilty, should receive the adtheir club house, and he had employed A. B., judication of the sentence of the law without. a gas fitter, to do such part of the work as lay unnecessary delay, also that the expenses of in his, A. B.'s department, and by the negli- trials and inconvenience to witnesses may, as gence of the workmen employed, the gas escaped, an explosion ensued, and great injury far as possible, be avoided; therefore it is prowas done to the plaintiff, who was a servant in posed to be enacted as follows: the club. "The charge is," said Lord Abinger, C. B., "that the defendant undertook to do certain work, and that he conducted himself with so much negligence about it as to occasion injury to the plaintiff. I own I entertain considerable doubt as to whether this action will lie against the defendant; the objection however, is upon record; the question therefore for you is whether negligence by the defendant 1. That when any person shall be brought before any justice or justices of the peace upon any charge of larceny, or of any felony punishable as larceny, or of any of the misdemeanors following; (namely) Obtaining any chattel, money, or valuable security, or property by false pretences; or, Receiving any chattel, money, or valuable New Bills in Parliament. security, or property, knowing the same to have been feloniously stolen; 453 or of not guilty; and in case the person so charged shall voluntarily express a desire to plead guilty, it shall be lawful for the said justices to convict him or her of the charge in respect of which he or she shall so have pleaded guilty as aforesaid; and it shall be lawful to the said justices to adjudge the offender, in pursuance of such conviction, to be committed to the gaol or house of correction belonging to such county or place as aforesaid, there to be imprisoned for any term not exceeding six calendar months, with or without hard labour, for the whole or any part of the term, and with or without solitary confinement, as the said justices shall think fit, so as such offender shall not be kept in solitary confinement by virtue of this act for more than one week consecutively; and the said justices may further order any such offender, if a male, and under the age of sixteen years, to be once or twice publicly or privately whipped, or to be once privately whipped and discharged, with Such justice or justices, upon taking the examinations in writing of the prosecutor and witnesses, as now by law in such cases required, may proceed as follows; (that is to say) such justice or justices shall read or cause to be read the examinations so taken to the person charged, and when the same shall have been read, the justice or justices shall inquire of the person so charged whether he or she may desire to say any thing touching the matter of that charge, and also whether it is his or her desire at that time to enter any plea either of guilty or of not guilty; and in case the person so charged shall voluntarily express a desire to plead guilty with reference to that charge, it shall be lawful for the justice or justices to order the offender to be detained in custody, if he or they in his or their discretion shall think fit, until the next special petty sessions, to be holden as hereinafter mentioned, for the divi-out imprisonment: Provided always, that in sion in which the offence shall be alleged to have been committed, or in which the offender may be or be found, instead of committing him or her for trial. at the assizes or general or quarter sessions of the peace; and the said justice or justices shall have full power and authority to admit the person so charged to bail in such sum or sums of money, and with or without sureties, as he or they shall think fit; and such justice or justices shall subscribe all examinations, bailments and recognizances, and deliver or cause the same to be delivered to the clerk of the petty sessions for the division, to be appointed as hereinafter mentioned. case the person so charged at the special petty sessions (whether the case shall have been previously investigated or not), shall, before such justices at petty sessions, express his or her desire to have the said charge inquired into by a jury, then the same proceedings shall be had in every such case with reference to the trial of such person as if this act had not been passed. 3.---Infants. If the person so charged, being an infant under the age of sixteen, shall desire to plead guilty to the charge, the justices, before they proceed to any such conviction as aforesaid, shall inquire whether any parent or guardian of such person is willing to attend and shall further inquire whether such parent or guardian does or does not, on the part of such person being an infant as aforesaid, assent to the making of the conviction and adjudication according to the provisions of this act; and if such parent or guardian shall express a desire to have the said charge inquired into by a jury, or shall withold his or her assent, on the part of such person being an infant, to the conviction and adjudication being made under the provisions of this act, the said 2. That once in every fourteen days at the usual place of holding petty sessions for the division, and at some time to be fixed by the justices usually acting therefore, there shall be holden a special petty sessions in and for every division of every county, riding or other place in which petty sessions are or may be hereafter held; and that, in addition to such business as is ordinarily transacted at petty sessions, it shall and may be lawful for the justices then and there assembled to hear and determine all such cases of larceny or felony or misdemea-justices shall not in such case convict or adjunor as aforesaid, in which the person charged shall voluntarily desire to plead guilty (whether the case shall have been previously investigated or not); and no indictment, arraignment or other formal proceeding shall be necessary or required, otherwise than as herein is provided; (that is to say) upon taking the examination in writing of the prosecutor and witnesses, as now by law in such cases required (if the case shall have been previously investigated, and if the case shall have been previously investigated, then upon reading or causing to be read the examination of the prosecutor and witnesses to the person so charged), the justices shall inquire of the person so charged, whether he or she desires to say any thing touching the inatter of that charge, and also whether it is his or her desire at that time to enter any plea, either of guilty dicate, but the same proceedings shall in every such case be had as if this act had not been made; otherwise in cases where the assent of such parent or guardian is duly signified, the justices may proceed to convict and adjudicate, as well in the case of such person being an infant, as in other cases, according to the provisions of this act: Provided always, that when no parent or legal guardian of such person being an infant as aforesaid is in attendance or is willing to attend, it shall be competent to the justices, at the request of such person being an infant as aforesaid, to permit one of the guardians of the poor, acting in that division, to appear and answer for the purposes of this act, as and for the parent or legal guardian of such infant, with respect to the conviction and adjudication by such justices, according to the provisions of this act Provided also, that the assent of such parent quarter sessions: and that it is expedient that or guardian to such conviction and adjudica- all the offences hereinafter mentioned should tion shall be in writing, and shall be signed by the parent or guardian, and shall be re- be tried by the judges of superior courts, or turned, together with the examinations and by other the justices and judges of oyer and depositions in the case, together with a copy terminer and general gaol delivery, and not at of the conviction and adjudication, to the clerk of the peace, as hereinafter is provided. the quarter sessions of the peace: it is therefore proposed to be enacted, 4. That the said conviction shall and may be in the form hereinafter directed, and shall be signed by the chairman of the said special petty session, and need not be under seal, and shall be of three parts, one to be preserved by the clerk of the said session, one other part thereof to be transmitted to the clerk of the peace as hereinafter directed, and one other part thereof addressed to the keeper of the gaol or house of correction for the county or place, and delivered to him, shall be full authority to such keeper and he is hereby required to receive the body or bodies of the person or persons therein named, and to punish him, her or them, in the manner by such conviction directed, as fully and effectually as if the offender or offenders had been tried and convicted, and sentenced for punishment by the Court of general quarter sessions of the peace. 5. Justices in special petty sessions to have same power as justices in quarter sessions. 6. Justices to exercise their discretion, whether to commit for trial at the assizes or sessions, or to receive the plea of guilty, if tendered according to the provisions of this act. 7. Justices to transmit to the clerk of the peace the conviction of offenders, together with the depositions. Form of conviction. 8. Justices empowered to provide for the safe custody of prisoners. 9. Justices may commit offenders to borough or county gaol. 10. Expences of prosecution. 11. Order upon the treasurer of the county, &c. 12. From what source the expences of prosecution shall be paid where no county rate exists. 13. Certain provisions in 7 Geo. 4, c. 64, to extend to this act. 14. Act not to extend to Scotland or Ire land. CRIMINAL JURISDICTION OF QUARTER A bill has been brought in by Lord Godolphin to "limit the criminal jurisdiction of courts of quarter sessions." It recites that by reason of the mitigation of the punishments formerly by law annexed to divers of the offences hereinafter mentioned, many of such offences are now usually tried at the quarter sessions of the peace for the several counties, cities, and boroughs in England and Wales, which offences before the said alteration of punishment were not usually tried at the said riding, divison, liberty, or franchise in Eng- Bigamy, forgery, perjury, conspiracy, assault Administering drugs or doing any thing with Killing sheep with intent to steal the carcases. the various offences enumerated in 11 G. 4, The abduction of women. Breaking down bridges and banks of rivers. Personating any officer, seaman, or other per son in order to receive any wages, pay, allowance, or prize money due or supposed to be due, or any out-pensioner of Greenwich hospital, in order to receive any out-pension, allowance, due, or supposed to be due. Sending threatening letters, and using threats to extort money. Larceny on navigable rivers and canals, and stealing and destroying goods in progress of manufacture, and larcenies after a previous conviction. Embezzlement, larceny by clerks and servants, and receivers of stolen goods, whether such person or persons shall be charged as principal offenders or as accessories before or after the fact. 2. Indictments to be sent to assizes. 3. Recognizances to be obligatory to appear at assizes. |