judgment must pass against the prisoners as on a conviction.

The learned Judge thought the matter ought to be brought before the Judges, and he therefore took the recognizances of the prisoners to appear at the Summer assizes, at York, to be then dealt with as on this record might be just.

The opinion of the Judges was requested as to what ought to be the judgment on this record.

This case was argued in Easter term, 1841, before all the Judges, except BOSANQUET, J., GURNEY, B., and MAULE, J.

PASHLEY for the prisoner. There are two questions here; first, is the plea good? second, is this indictment good? The first depends on the 7 & 8 G. 4, c. 29, s. 53. That section renders the person charged liable to a conviction for this misdemeanor, though the evidence proves a felony. He is tried for one offence and punished for another, though not charged with it. The provision is altogether anomalous.

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TINDAL, C. J. He is in a better situation, inasmuch as he is not convicted of a felony, only adjudged as for a misdemeanor. The notion was, *that the misdemeanor was merged in the felony. The statute alters that by punishing as for a misdemeanor. Still he might here be put in jeopardy for the offence he was acquitted of there.

[ALDERSON, B. These defendants were not put in jeopardy by the former indictment, for the misde

meanor charged in this. The acquittal on that might have been on the ground that the offence did not amount to a felony.

PARKE, B. They are charged, or rather made liable to punishment, on this indictment either for the larceny or for the misdemeanor. The plea only answers one of these. The misdemeanor is not answered.]

If autrefois acquit is not a good plea, neither would autrefois convict, and so a party who had been convicted and suffered punishment for the larceny might afterwards be punished for the misdemeanor.

[ROLFE, B. That difficulty occurred to me at York; certainly the party ought to have the benefit of the former conviction.]

Without pursuing the argument further as to the plea at present, it is submitted that this indictment is bad; first, the false pretence is not sufficient. It is a mere lie. It is too large a proposition, that a false representation of an existing fact is sufficient within the act of parliament. There is a large class of cases decided otherwise. In R. v. Wheatley, 7 C. & P. 825, selling an unsound horse, stating him to be sound, was decided to be no criminal offence. R. v. Codrington, 1 C. & P. 661, selling an estate which the party had already sold, was not obtaining money by false pretences.

*[PARKE, B. In Reg. v. Parker (a) I left it to the Jury to say whether the defendant had

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(a) Supra, 1.

falsely represented that he had an account at the bank of Stuckey and Co. The Jury found the representation to be false. The Judges held the conviction right, as it was the false representation of an existing fact.]

There is another objection to this indictment, on which it is clearly bad. There is no allegation that the defendants knew that Barlow had not the money; nor is it alleged that they did knowingly falsely pretend, &c. In Chitty's Criminal Law it is laid down that the scienter must be averred. In R. v. Wickham, 10 A. & E. 34, this was conceded throughout the argument. Here his pocket might have been picked of the money without his knowledge.

He was stopped in his argument.

All the Judges held the indictment bad for want of this allegation.

REGINA v. PATRICK MAXWELL STEWART WALLACE and MICHAEL SHAW STEWART WALLACE.

The Central Criminal Court has jurisdiction to try accessories before the fact to the felony of "casting away and destroying a ship" on the high seas, on an indictment in the usual form against principal and accessory, though the principal felon be not amenable to justice. The underwriters on a policy on goods fraudulently made are within 1 Vict. c. 89, s. 6, though no goods were put on board.

THE prisoners were tried before the LORD CHIEF JUSTICE TINDAL, present, BOSANQUET and WILLIAMS,

Justices, at the March sessions, at the Central Criminal Court, in the year 1841, upon the charge of being accessories before the fact, to a felony committed by Edmund Loose as principal, the principal *not having been previously convicted, and upon the evidence given at the trial appearing to be not amenable to justice.

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The prisoners having severed in their challenges were tried separately; but it was understood at the trial that the legal objections which were urged by the counsel in behalf of the one of them, should be considered as applicable to both.

The first count in the indictment stated that Edmund Loose, late of London, mariner, with force and arms, a certain vessel called the Dryad, the property of Alexander Howden and others, on a certain voyage upon the high seas then being, then and there upon the high seas, and within the jurisdiction of the Admiralty of England, and within the jurisdiction of the Central Criminal Court, feloniously, unlawfully, and maliciously did cast away and destroy, with intent to prejudice the said Alexander Howden and another being part owners of the said vessel, against the form of the statute, &c., and further that Patrick Maxwell Stewart Wallace, before the said felony was committed in form aforesaid at London aforesaid, and within the jurisdiction of the said Court, did feloniously and maliciously incite, move, aid, counsel, hire, and command the said Edmund Loose the said felony, in manner and form

aforesaid, to do and commit against the form of the statute, &c., and further, that the said Michael Shaw Stewart Wallace before, &c. (a similar charge against Michael of being accessory before the fact).

The second count omitted the words describing the Dryad as the property of Alexander Howden and others.

The third and fourth counts were the same respectively as the first and second, differing only in the mode of charging the intent to prejudice, which *in these counts was alleged to be "with intent to prejudice Pedre Juan de Zulietta and others, the owners of certain goods then and there laden, and being on board the said vessel."

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The fifth and sixth counts charged the intent to be to prejudice John Irving, then and still being the chairman of a certain company called by the name of "the Alliance Marine Assurance Company," which Company had before then underwritten a certain policy on certain goods, then being on board the said vessel, which said policy was then in full force and operation.

There were twenty other counts stating the intention to be to prejudice the underwriters on other policies of insurance, some effected on goods, some on the vessel, some on freight.

At the trial it appeared that Alexander Howden and one Anistice were owners of one-fourth of the ship Dryad, and the prisoner Michael of the other threefourths; that the goods which were put on board by