*It afterwards appeared that the warrant had been executed upon *207] William Mead at Stanton Dale, within the liberty of Pickering Lyth; and the under-sheriff for the county of York stated, that whenever warrants were to be executed within that liberty, they were directed to the chief bailiff of the liberty, who made his return to them: and that warrants in such cases were never directed to the bailiffs of the sheriff of the county of York.

On the part of the prosecution, it was submitted, that although a bailiff who arrested a defendant within a liberty without a non omittas clause in the writ might be amenable to the lord, the arrest could not be considered as a trespass against the defendant himself; but

WOOD, Baron, was of opinion, that a bailiff, under such circumstances, must be considered as a trespasser,t and the prisoners were acquitted.

Tindall and Starkie, for the prosecution.

Gilby for the prisoner.

See Hale, H. P. C. 458., where it is laid down, that if the process be executed out of the jurisdiction of the court, the killing of the minister is only manslaughter; and so it is, if the issuing of the process were void and coram non judice.

*208]

"TOWN OF NEWCASTLE-UPON-TYNE.

REX v. SMITH.

In order to warrant the admission of a deposition of the deceased against the prisoner, on an indictment for murder, it is not necessary that the prisoner should have been present the whole of the time during which the deposition was taken, the deponent having been re-sworn in the presence of the prisoner, and the part of the deposition, which had already been taken, having been read over to the prisoner and sworn by the deponent to be true.

THE prisoner was indicted for the wilful murder of Charles Stuart, on the night of the 3d of September, 1816.

It appeared that the prisoner, on the 4th of September, was brought before two magistrates upon a charge of assaulting Charles Stuart, and of having robbed a manufactory which Stuart had been employed to guard. The principal question was, as to the admissibility of the deposition of the deceased, which was taken before the magistrates upon that occasion, under the following circumstances.

The clerk of the magistrates took down the deposition of the deceased, which he produced at the time. The oath was administered to the deceased before any part of the deposition was written, and the clerk then proceeded to take down his statement. The prisoner was not present when the deceased commenced his statement, and when the magistrate's clerk began to take it down in writing. The prisoner was brought into the room, before the examination was finished, and before the last three lines were written down. The *209] prisoner was then informed that the magistrates were taking the deposition and he was desired to attend. The oath was then again administered to the deceased, in the presence of the prisoner, and the whole of the deposition, which had been already committed to writing from the mouth of the deceased, was read over to the prisoner very distinctly and slowly. After this had been done, the deceased was asked, in the presence and hearing of the prisoner, whether what had been so written was true, and what he meant to say, and the deceased answered that it was perfectly correct. The magistrates then pro

ceeded to examine the deceased further, and the deceased stated, in the presence and hearing of the prisoner, that which was stated in the last three lines of the deposition of the deceased. The deceased appeared to be perfectly collected at the time.

The prisoner was asked afterwards, whether he chose to put any questions to the deceased, but he did not ask any, he merely said, "God forgive you, Charles." The deceased signed the deposition in the presence of the magis trates, and of the prisoner, and after he had signed it, the magistrates signed it in the presence of the deceased, and of the prisoner.

[*210

On the part of the prisoner it was objected, that the deposition of the deceased could not be read in evidence; first, because the prisoner did not hear the questions put or the answers given, and had not had the opportunity of seeing the manner in which the answers were given, except as to the last three lines of the deposition, and, therefore, it was contended, that the case did not come within the statutes 1 & 2 Philip and Mary, c. 13, and 2 & 3 Philip and Mary, c. 10, which made depositions in any case evidence; and secondly, because the examination under those statutes is confined to the offence with which the prisoner is charged at the time; that the prisoner, in this case, was charged with an assault and robbery, and, therefore, although the deposition in question might possibly have been admissible in evidence, upon an indictment for the assault, or for the robbery, it could not be admitted upon the trial of the present charge, which was for murder, no such offence having been committed at the time when the deposition was taken; but―

RICHARDS, C. B., was of opinion, that the evidence was admissible, since the deceased had been re-sworn in the presence of the prisoner, and had repeated what he had stated before, and the prisoner, therefore, had had an opportunity of cross-examining him. His lordship also cited the case of the King v. Radburne,t where the deceased had been examined in the presence of the prisoner, and the deposition had been read upon the trial.

The jury found the prisoner guilty.

Richardson and Grey, for the prosecution.
Alderson, for the prisoner.

*RICHARDS, C. B., afterwards respited the execution, in order that the opinion of the twelve judges might be taken, as to the admissibility of [*211 this evidence, and a great majority of the judges being of opinion that the evidence had been properly received, the prisoner was executed.

† 1 Leach, C. C. L. 512, 3d. Ed.

I have been informed that all the judges were present except GIBBS, L. C. J.; and that ten out of the eleven who were present, where of opinion, that the evidence had been properly received. The two statutes of Philip and Mary seem to have been passed without any direct intention on the part of the legislature, to use the examinations and depositions as evidence upon the trials of felons. The first of these statutes. viz. the 1 & 2 Philip and Mary, c. 13, was made for the express purpose of laying a restraint upon jus tices of the peace in exercising their power of admitting felons to bail, and is limited to those cases where the party charged is admitted to bail: and the second of these statutes, viz. the 2 & 3 Philip and Mary, c. 10, extends similar provisions to cases where the prisoner is committed, in order, as it seems, to ascertain whether the witnesses are con sistent in the testimony, and neither of these statutes manifests any direct intention of the legislature to make these documents evidence. See the observations of Grose, J., Learch; C. C. L. 3d ed. 625. But the taking of such depositions, having, in cases of felony, been sanctioned by the legislature, became, it seems, admissible in evidence, upon the rules and principles of evidence already established. The effect of the statutes in point of evidence seems to consist in removing an objection which would before have occasioned the rejec tion of such evidence, namely, that the proceeding was extra-judicial; and, therefore, where the depositions are not regularly taken within these statutes, they cannot be read, because there the same objection prevails, which existed as to all such depositions before these statutes, viz. that they are unwarranted and extra-judicial; consequently, examina

tions and depositions taken in a case of misdemeanor, cannot be read in evidence, because the statutes apply to cases of felony only, Rex v. Payne, Salk. 281, 5 Mod. 183.

In the above case, it is clear that the proceeding was not extra-judicial, since the prisoner was charged before the magistrates with having committed a felony. It seems, that at common law, a deposition, judicially taken in one proceeding may be used in another proceeding between the same parties, the party against whom the evidence is offered, having had an opportunity to cross-examine in the former proceeding.

*212]

See Lord Palmerston's case cited by Lord Kenyon, 4 T. R. 290. Pyke v. Crouch, Lord Raym. 730. Pilton v. Walker, Str. 162. Green *. Gatewick, B. N. P. 243. 12 Mod. 319. Barnard, K. B. 243. And the same principle seems to apply to criminal cases.

In the above case, the deposition was warranted by the statute, it was taken under the sanction of an oath, and the prisoner had an opportunity to cross-examine.

In Radbourne's case, Leach's C. C. L. 3d Ed., the deposition of the deceased was read, and, therefore, the objection, that the offence must be complete at the time of the exami nation if available, would have operated to the rejection of the deposition in that case; the prisoner, previous to the death of the injured party, cannot, in any case, be charged with the murder as an offence already consummated, and, therefore, to reject the deposition of the deceased in such a case, would be to exclude the deposition of the deceased altogether in cases of homicide.

CARLISLE SUMMER ASSIZES.

HARTLEY v. HALLIWELL.

In a declaration for keeping a dog which killed several of the plaintiff's sheep, it is alleged, that the defendant knew that the dog was accustomed to bite and kill sheep. Proof must be given that the dog had previously bit sheep, and the fact cannot be inferred from the circumstance of the dog's having before sprung upon a man.

THIS was an action on the case for keeping a dog which had killed several of the plaintiff's sheep.

The declaration contained two counts, in both of which it was alleged, that the defendant knew that the dog was accustomed to bite, worry, and kill sheep and lambs.

It appeared that the defendant kept two pointers and a tarrier, and that one of them had barked at and risen against one of the plaintiff's servants, but had not actually bit him. It also appeared that the dog had run after sheep, and had been called off from the pursuit, but there was no evidence that any of them 213] had ever bit any sheep. The defendant *had declared that he kept the dogs for the purpose of protecting his house, and that if it were necessary, he would keep fifty more.

On the part of the defendant it was objected, that there was no evidence of the allegation in the declaration, that the dog was accustomed to bite sheep, or that the defendant knew it.

On the other hand, it was contended, that it was sufficient to prove that the dog was mischievous, and that the defendant knew him to be so; and 1 Lord Raym. 110, was referred to, where it is laid down, that if a man keep a dog which bites sheep, and he has notice of it, and afterwards the dog bites a mare, an action is maintainable. It was also contended, that there was sufficient evidence, from which the jury might infer a knowledge on the part of the defendant, that the dog had actually bit sheep.

WOOD, B., left it to the jury, upon the evidence to say, whether the defendant's dog had done the injury complained of, and whether the dog had been accustomed to bite sheep, and whether the defendant had had notice of this propensity.

The jury found for the plaintiff.

A rule nisi having afterwards been obtained, to show cause why a new trial should not be had, Littledale contended, on the part of the plaintiff, that there was sufficient evidence to enable the jury to infer, that the defendant's dog had been accustomed to *bite sheep, since there was evidence that he had [*214 pursued sheep, and the presumption was, that this had been done with a hostile intention. The dogs had not been kept for the purpose of killing game, but as house dogs.

It was also contended, that it was not necessary to show that the dog had bit any sheep, and the case of Judge v. Cox,t was referred to, where a similar fact had been inferred, from the declaration of the defendant. Here the dog had been called off from the pursuit of the sheep by some one, and it was sufficient if this had been done by some one employed by the defendant. If proof of an actual previous biting were necessary, the consequence would be, that damages would never be recovered occasioned by the first offence of a dog.

The court were of opinion, that the plaintiff had bound himself by the particular framing of the declaration, to prove the injury to have been of the partacular kind alleged. For if the allegation, that the dog was accustomed to bite sheep were to be struck out of the declaration, it would not contain enough to support the action, unless it were to be proved that every dog which would jump at a man would bite sheep, the fact could not be inferred from the former And the rule for a new trial was made absolute.‡

act.

+ Supra, vol. i. p. 285.

Lord Ellenborough and Bayley, J., intimated that the declaration might have been framed more generally, by alleging that the dog was of a ferocious and savage disposition, and ought not to be left at large. Abbott, J., said, that such a declaration would be sup ported by the facts, but that whether it would be good in law, it was not necessary to consider.

LANCASTER SUMMER ASSIZES.

RHODES et al. v. AINSWORTH.

The owner of landed property within a chapelry is not a competent witness to relieve the inhabitants of the chapelry from the permanent burthen of repairing the parish church, although the witness does not reside within the chapelry, and his lessee for years of his estate within the chapelry is bound to pay all rates.

THIS was an issue to try whether the inhabitants of the chapelry of Milne Row, which was situated within the parish of Rochdale, were bound by immemorial custom to contribute to the repairs of the parish church. By the terms of the issue, the affirmative of this proposition was to be proved by the plaintiff.

On the part of the defendant, a witness of the name of Mills was called, of the age of seventy-five, in order to disprove the custom alleged by and insisted upon by the plaintiffs, and to show that no repairs had been made by the inhabitants of the chapelry within his memory. Upon the examination of this witness upon the voir dire, it appeared, that he was the owner of a small house and a parcel of land, situate in the chapelry of Milne Row; that he resided in the county of York; that his property in the chapel was leased to a tenant; and that he was not liable to the payment of any rates, the tenant having agreed to pay a gross-rent without any deduction, and that several years of the lease still remained unexpired.

*

[*216

The counsel for the plaintiff objected, that the witness was incompetent, since

he was interested to discharge the chapelry in which he had property from the burthen of repairing the parish church. The effect of his evidence was to get rid of a burthen which would render his property less valuable.

On the part of the defendant, it was answered, that the witness had no existing interest, since he was not the occupier of the estate, and possibly never might be; the rate was upon the occupier and not upon the owner. And the case of The King v. Kirdford, 2 East. 559 was cited, in order to show that in order to incapacitate a witness, his interest must be an existing interest, and not merely an expected and doubtful interest; the present case, it was contended, was stronger than the case cited, for there the witnesses's name had been omitted out of the rate, for the express purpose of making him a competent witness. The case of the Saddlers Company v. Jones, 6 Mod. 166, was also cited for the same purpose; but

WOOD, B., was of opinion, that although the witness could not be called upon at present to pay any rate, whatever the result of the cause might be, yet, that as the owner of the fee he had an interest in removing a per

217] manent incumbrance from the estate. His property in the chapelry

would be affected by the event.

The witness was accordingly rejected.

Scarlett and Richardson, for the plaintiffs.

Verdict for the plaintiffs.

Topping, Littledale, and Williams for the defendant.

In the ensuing term, Topping moved for a new trial, on the ground that the evidence of the witness ought to have been received; but the court were of opinion, that the evidence had been properly rejected. The witness was not interested in the particular and specific rate, but he was interested in the question of rateability. The verdict for the plaintiff would bring a permanent charge upon his property, and render the fee simple of less value.t

↑ See Mr. Evans's observations on the case of The King v. Kirdford, in his e lition of Pothier, vol. ii. p. 306.