C. P.]

Re THE NORWICH ELECTION PETITION; STEVENS v. TIllett.

trial, may clearly be considered. There is no authority for striking these paragraphs out. It has been alleged that the whole charge of corrupt practices against the respondent at the first election is res adjudicata, but how can that be so with regard to those matters which were not brought to the notice of Baron Martin, the parties to the litigation being now different from those of the former petition? It was said that the decision of the judge was a judgment in rem, and concerned the status persona. That decision, no doubt, was so in respect of the sitting member, but not as to the unsuccessful candidate: the report merely was that the charge was not proved against him. If he had been found guilty after being heard in defence, effect would have been given to the report by the statute, but no effect is given in the case of a charge being not proved, and it is left open to a judge to go into the charge again. The Act does not make the report conclusive under the circumstances of this case, and we have no power to make it so. Baron Martin said he believed the election was on Mr. Tillett's | part perfectly pure. How is that statement of belief upon the evidence adduced to be final? If nothing had been brought before him to prove the contrary, he might very properly so report, and yet there might be in existence overwhelming proof of corrupt practices in the background. There being nothing in the Act of Parliament, nor in the previous decisions when examined, to prevent the charges in this petition from being inquired into, these two clauses ought, in my judgment to be restored, and the order to strike them out should be set aside.

WILLES, J.-I am of the same opinion. Under the Act of 1868, we must not forget that, although a new jurisdiction is given to this court, we are not to create a new procedure, but in the terms of the second section, this "court shall, subject to the provisions of this Act, have the same powers, jurisdiction, and authority, with reference to an election petition, and the proceeding thereon, as it would have if such petition were an ordinary cause within their jurisdiction." We have, therefore, a discretion under this Act analogous to that of a judge in ordinary causes, subject to any express provision in the statute. Whilst generally we should not compel a party to plead and defend himself in a cause which is not to be prosecuted, we are bound under such circumstances as those of the Taunton petition (Waygood v. James) to hold the determination of the judge that a person charged with bribery was duly elected, final, according to the express provision of sub-sect. 13 of sect. 11, although the charge be withdrawn before investigation. The validity of the return of a member has been regulated by the Act, and it is not competent to us to question a second time the determination of a judge upon which that return depends. We ought not to consider the steps to such a return the proceedings in an ordinary cause. By sect. 24, a shorthand writer's copy of the evidence adduced is to accompany the certificate made by the judge to the speaker; and this evidence of course should be relevant to the questions to be tried; the order, therefore, to strike out the clauses objected to must be sustained if the matters contained in them have no useful bearing in determining the prayer of the petition. The question is whether a case can be made out upon the allegations in those clauses which would be sufficient under sub-sect. 13 of sect. 11, to justify a judge in determining to grant the prayer. I conceive that it may. The argument for expunging these clauses depends upon sect. 53 as operating upon paragraph (a) of the 14th sub-section of sect. 11. Sect. 53 gives to a respondent power to make recriminatory charges against an unsuccessful candidate for whom the seat is prayed, but no

[C. P.

duty is imposed upon him to recriminate; he may do so or not. If, however, he proceeds with his recrimination, he must do so in the same manner as if he had presented a petition complaining of such election, and it then becomes the duty of the judge to adjudicate upon his charges, but only sub modo. He has not to adjudicate so as to come within sect. 36 of 17 & 18 Vict. c. 102; but if a case be presented against a candidate, and the judge decides it has been proved, he must report the candidate guilty. This is almost harder upon the judge than the candidate; for if a judge feels himself compelled, without the assistance of a jury, and with all the qualms consequent upon such a duty, to pronounce alone and without appeal a conviction in a criminal case, the charge must be so clearly established that there could be very little sympathy for the candidate. Then arises sect. 43, which, however, is only a special provision applicable, not to corruption, treating, or intimidation, but to bribery alone. It is exceptional in that it involves penal consequences, and is a special stigma for a particular offence, and that only in a peculiar case. If a judge should think a candidate guilty of personal bribery under such circumstances, although one may lament the judge's jurisdiction, the consequent hardship upon the guilty candidate can scarcely be regretted. But I reject this section, for I consider it throws no light upon the ordinary proceedings before a judge. I return to the consideration of sect. 11, sub-sect. 14 (a). It is not denied that, practically, the cases actually investigated before Martin, B., were finally and for ever disposed of. I go further, and say that as they were not only practically, but legally investigated, and not as a matter of the judge's discretion, they ought not to be re opened. If a recriminatory charge be made under sect. 53, and gone into, it is the duty of the judge to report upon it, as much if it fail as if it be established, and for that purpose, and to such an extent, his judgment is final. Litigants are mortal, and it is inconsistent with the course of justice, that there should be a second inquiry into a criminal charge which has once been determined. Besides, the statute gives no appeal from a judge's decision, nor even has the House any power to review it. By the 2nd section the House abdicates its power over members in these matters to this court, and when once decided, a dispute is dead and buried. I have, however, a different opinion with regard to cases not brought before a judge. If an ordinary litigation be continued after a decision of a court, and a matter not previously known be discovered, it may be brought forward subsequently. With respect to such matters at least as those mentioned in the paragraphs of the petition objected to, the report is not conclusive. Whether it would be conclusive as to matters which might have been, but were not, brought before Martin, B., it is not necessary to decide. I must apologise for expressing how I should exercise a discretion which belongs equally to every election judge, but I will say that if I were trying this petition, I should feel the strongest reluctance to hear any charges which the respondent in the first petition could have brought and did not bring forward at the first trial, or any matters relating to the charges against Mr. Tillett which were known to the other side at that time. I say I should feel reluctance to listen to such matters, but I will not lay down as a rule of law that they ought not to be heard. If, however, it was not in the power of the respondent at the time of the previous petition, and it appeared that the present respondent was not then convicted, only because, with reasonable diligence, his opponent had not found it out, I should certainly investigate the matter and report in the same way as if there had

C. P.]

REG. v. HENDERSON.

[C. CAS. R. influence is rendered incapable of being elected or sitting for the place he contested only during the Parliament then in existence. But by sect. 43 of the Act of 1868 it seems that a candidate may be found guilty of personal bribery and rendered incapable of election at any time after the election at which the bribery took place. I think this order must be rescinded so far as these clauses are concerned, but I agree with the other part of the order, and consider it very much better that this matter should be decided now than after the trial of the petition.

been no previous trial. The only distinction between the provisions of 11 & 12 Vict. c. 98, s. 87, concerning a committee, and the provisions of 31 & 32 Vict. c. 125, s. 11, subsect. 14, concerning an election judge, is that a judge must now report what the committee might report if it liked. I will here make a remark concerning a point which was adverted to with great weight in the arguments. The certificate and report were made by Baron Martin in the exact terms required by the Act, but our attention was also called to an expression of opinion which Baron Martin is reported to have made at the trial that Mr. Tillett's election was pure. The remarks of a judge must be taken with the circumstances, and Baron Martin clearly meant that he believed there had been no personal corrupt practices on Mr. Tillett's part; it was merely an expression as to him personally; it was not a declaration that it was impossible that the election could have been impure. I do not conceive that we are in this matter conflicting even with the spoken words of the judge. The clauses (a), (b), and (c), of sub-section 14 are to be read together; now it seems to me that the only ground for the argument on the respondent's behalf was that the decision of the judge related to the status of the candidate, and, therefore, being a judgment in rem, it was final. But if a judge returned under (b) that no person was proved to have committed bribery, it was merely a statement that there was absence of proof as to the matter. Or, if under (c) a judge reported that corrupt practices had not extensively prevailed, it would not be an absolute proof of the innocence of the whole constituency. Whether we take the history of legislation on the subject, or the sources of the provisions in the last Act, or the effect of the provisions not directly applicable, we ought not to consider this report conclusive. The authorities from the election cases do not throw much light upon this particular question, but there are cases somewhat analogous in the regular reports. Seddon V. Tutop, 6 T. R. 607, was a decision that a former judgment for the amount of a promissory note, sued upon together with money counts for the consideration, was no bar to another action for the consideration, if no evidence had been given concerning the money counts in obtaining the former judgment. In Lord Bagot v. Williams, 3 B. & C. 235, the pleation that the opinion of the court might be taken on BYLES, J.-I stayed the proceedings in this petito an action for money had and received was a tudgment recovered for want of a plea for 40004. in

an inferior court for the same causes of action. It appeared that the plaintiff had declared and proceeded for a smaller sum than was due to him, under the belief that the plaintiff had no available property beyond that amount; it was held that all the sums which the plaintiff knew the defendant had received at the time when he commenced the action

KEATING, J.-I am of the same opinion, and I think these clauses must be restored to the petition. The reasons for this conclusion have been fully stated, and it is not necessary for me to repeat them. I desire, however, to express my entire concurrence in the observations which have been made by my Lord and my brother Willes. Parliament has confided these matters to us, and we ought to be most particular in adhering to the terms of the statute. The Legislature has made a distinction between the effect of a judge's report and his determination as declared by the certificate. It appears to me that upon the report of Martin, B. we could not, without disregarding the terms of the Act, refuse to go into the consideration of matters not adjudicated upon by him. I desire too to express my concurrence with my brother Willes as to the cases against the respondent which have been already decided by Martin, B. I think that neither with propriety nor by law should those cases be reconsidered. But it would be going far beyond any. thing laid down by this Act to say that the peti tioner is concluded from establishing matters which with reasonable diligence he had been unable to discover at the time of the former petition. I think the report by no means excludes this evidence. I should be sorry if we were supposed by this decision to be contravening the 26th section; we ought certainly to be bound by the practice of the election committees, and my idea is that the law of Parliament in this matter was directly opposed to the arguments for the respondent. The second Canterbury case, if it comes to anything on this point, is a clear decision in favour of the petitioner.

the order which I made. The respondent has had an advantage in consequence. This matter is one about which there is no writ of error or appeal, and therefore I desire only to say that this decision must be taken as that of the whole court.

Rule absolute. Attorneys for petitioner, Whites, Renard, and Floyd, for Emmerson and Sparrow, Norwich, Attorneys for respondent, E. Flux and Leadbitter, for Miller, Norwich.

CROWN CASES RESERVED. Reported by JOHN THOMPSON, Esq., Barrister-at-Law.

Saturday, Nov. 19, 1870.

in the inferior court were to be considered as causes of action in respect of which he had declared and recovered the judgment. These two cases were both referred to by Lord Wensleydale in a similar one, Stewart v. Todd, 9 Q. B. 767. These cases would also apply to the sitting member, were it not for the sub-sects. 14 and 16 of sect. 11, which expressly provide that the certificate, as in the Taunton case, is to be final. I am not aware of any authority at common law deciding that bribery (Before KELLY, C.B.; CHANNELL, B.; KEATING and by a candidate at a former election is conclusive against his subsequent return; but it was held in the Dungarvan case that evidence of treating at a previous election was admissible under 5 & 6 Vict. c. 102, s. 22. By the Act passed in the same year as the Dungarvan case (17 & 18 Vict. c. 102), s. 36, the evidence concerning bribery at a previous election, which was refused by that committee, became admissible. Under both of those Acts, however, a candidate guilty of bribery, treating, or undue

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BRETT, JJ.; and CLEASBY, B.)
REG. v. HENderson.

Bailee-Deposit or sale-Fraudulent conversion—24 §

25 Vict. c. 96 s. 3.

A. delivered two brooches to the prisoner to sell for him at 2001. for one and 115l. for the other, and the prisoner was to have them for a week for that purpose; but two or three days' grace might be allowed. After ten days had elapsed the prisoner sold them, with other

jewellery, for 2501., but arranged with the vendee that | The prisoner had the option of returning the brooches, or the price agreed upon for them. [BRETT J.-Was not the prisoner rather an agent for sale, having possession of the goods?] No, considering how the parties were dealing. The prisoner was not bound to return these goods; he might have paid to the prosecutor the sum agreed upon for them. In Reg v. Hassall, L. & C. 58, and Cox Crim. Cas. 481, it was decided that a person who holds money for another under an obligation to give back the amount deposited at a specified time, but who is not bound to return the specific coins which he has received, is not indictable as a bailee under the statute. The authority to sell was not at an end when the limited number of days expired. After the expiration of that time the prosecutor might have sued the prisoner for the price of the brooches as upon an absolute sale: (Moss v. Sweet, 16 Q.B.493; 20 L. J. 167, Q. B.) The following cases show that the prisoner was not liable to be indicted as a bailee:

The jurors for our Lady the Queen, on their oath present that George Henry Henderson, on the 29th June 1870, two diamond brooches of the goods and chattels of Alexander Alexander and Alexander Samuel Pyke, feloniously did steal, take, and carry away, against the peace of our Lady the Queen her crown and dignity.

The evidence material to the point raised in this case was as follows:

REG. v. HAZELL.

to the jury was, did the prisoner intend, at the time of his raising the money on the brooches, to resume possession of them, so as to fulfil the purpose for which they were entrusted to him, i. e., return them in specie to the prosecutor? If he did not, the act was fraudulent. If he did so intend, whether such intention takes the case out of the 3rd section, is another question, and does not arise in this case. If he sold the brooches without the intention of repossessing himself of them, so as to fulfil his duty, he was guilty of the larceny charged in the indictment. The jury must be taken to have found that he did not intend to repossess himself of them; the act of sale was therefore, in itself, a fraudulent applying of the brooches to his own use, and a larceny within the statute. The question reserved for us assumes something which is not the case— that the prisoner was not bound to restore the specific articles-whereas, after the ten days had elapsed, he was bound to return the specific brooches to the prosecutor. The conviction will be affirmed.

The other Judges concurred.

Held, that the prisoner was properly convicted of larceny and asked him if he knew what he was charged with. He I apprehended prisoner on 27th June in St. James's-park. upon this evidence. said he did not know prosecutor at all.

Q. B.]

DOBREE (app.) v. prisoner to the common gaol at Newington until the decision of this Court should be known.

NOTE.-Henry Hazell was bailed to answer the charge of being an accessory after the fact to the larceny committed by William Hazell, but did not surrender.

E. RICHARDS ADAMS, Chairman.

Metcalfe, for the prisoner, said he had looked into the authorities, and could not support the objection. KELLY, C. B. -I suppose after the case of Reg. v. McGrath, 11 Cox Crim. Cas. 347; 39 L. J., 7 M.C.; 21 L. T. Rep. N. S. 543, you find the point untenable.

Keogh for the prosecution.

Conviction affirmed.

COURT OF QUEEN'S BENCH. Reported by T. W. SAUNDERS and J. SHORTT, Esqrs., Barristers-at-Law.

SECOND Court.

Wednesday, Nov. 9, 1870.

DOBREE (app.) v. Norcliffe (resp.) Pawnbroker-Sale of plegdes-Overplus upon some and a loss upon others-No right of set-off-39 & 40 Geo. 3, c. 99, s. 20.

Under sect. 20 of the 39 & 40 Geo. 3, c. 99 (the Pawnbrokers' Act), every pawnbroker in any case in which goods which have been pledged for upwards of 10s. are sold for more than the principal money and interest due, is to pay over the surplus on demand to the pawnor, deducting the necessary charges of the sale; and he has no right to set-off any sum due to him from the pawnor in respect of losses upon other pledges. Where therefore A. pawned three articles at different times, which upon being sold realised more than sufficien! to repay the principal money, interest, and expenses of sale, but other articles pawned by him with the same pawnbroker did not upon sale realise sufficient to repay the principal money, interest and expenses of sale:

Held, that the pawnbroker had no right to set-off the loss upon these latter articles against the overplus upon the sale of the others.

This was a case stated by one of the metropolitan police magistrates sitting at Bow-street, under the 20 & 21 Vict. c. 43, upon a conviction of the appellant under sect. 20 of the 39 & 40 Geo. 3, c. 99 (Pawnbrokers' Act). The case stated as follows:

them to pay to the respondent the said sum of 12s. and the mitigated penalty of 10s., and the further sum of 10s. for costs in that behalf. At the same

place and at a sitting held on the several days in the first information herein before mentioned, a second information preferred by the said respondent against the said appellants under the said section of the said Act, charging that they the said appellants on the 5th Feb. 1870, at the place herein before mentioned, did in like manner unlawfully refuse to pay to the said respondent upon demand by him made the sum of 6s., being the overplus upon the sale of two chairs pawned by the respondent with the appellants on the 10th Nov. 1867, for 15s, was heard and determined by me as aforesaid, and upon such hearing, the appellants were duly convicted by me of the said offence, and I adjudged them to pay to the respondent the sum of 5s. 3d., and the mitigated penalty of 108., and the further sum of 10s. for costs in that behalf. At the same place, and at a sitting held on the several days in the first information herein before mentioned, a third information preferred by the respondent against the said appellants, charging that they, the said appellants, on the 5th Feb. 1870, at the place herein before mentioned, did, in like manner unlawfully refuse to pay to the said respondent, upon demand by him made, the sum of 11. 168. 10d., being the overplus upon the sale of a looking-glass pawned by the respondent with the appellants on the 16th Dec. 1867 for 1, was heard and determined by me as aforesaid, and upon such hearing, the appellants were duly convicted by me of the said offence, and I adjudged them to pay to the respondent the sum of 17. 16s. 10d. and the mitigated penalty of 10s., and the further sum of 10s. for costs in that behalf. And whereas the appellants, being dissatisfied with my determination upon the hearing of the said information, and each and every of them as being erroneous in point of law, have, pursuant to sect. 2 of the said statute (20 & 21 Vict. c. 43), duly applied to me in writing to state and sign a case setting forth the facts and the grounds of such my determination as aforesaid for the opinion of this court, and have duly entered into recognizance as required by the statute in that behalf. Now, therefore I, the said justice, in compliance with the same application and the provisions of the same statute, and by the con sent of the said parties, do hereby state and sign the following case.

The respondent is a journeyman printer, and the appellants are pawnbrokers carrying on business in partnership at No. 43, Drury-lane, within the district of the said police court.

Upon the hearing of the first information it was proved on the part of the respondent, and admitted by the appellants, that the what-not in the said first At a sitting holden at the Bow-street police- information mentioned was pledged by the responcourt, at Bow-street, in th county of Middlesex, dents with the appellant on the 28th Nov. 1867 for and within the metropolitan police district, on the 13s., and not being redeemed was sold in accordance 22nd Feb. 1870, and on divers other days by ad- with the provisions of the 39 & 40 Geo. c. 99 in journment of the said sitting, down to and on the that behalf on the 15th Feb. 1869, when it realised 29th March 1870, an information preferred by Henry the sum of 1. 10s., of which the pawnbroker was Albert Norcliffe (hereinafter called the respon- entitled to 13s. for principal, 3s. 3d. for interest, and dent) against Robert John Dobree and Joseph 1s. 6d. for necessary costs and charges of sale, leav Avant (hereinafter called the appellants), under ing an overplus of 12s. 3d. due to the respondent. sect. 20 of the Pawnbrokers Act (39 & 40 Geo. 3, Upon the hearing of the second information it was c. 69), charged that they the said appellants on the proved on the part of the respondent, and admitted 5th Feb. 1870, in the parish of St. Martins-in-the- by the appellants, that the chairs in the second inFields, in the county of Middlesex, and within the formation mentioned were pledged by the responsame district, did unlawfully refuse to pay to the dent with the appellants on the 10th Nov. 1857, and said respondent upon demand by him made the sum not being redeemed, were sold in accordance with of 12s., being the overplus upon the sale of a what- the provisions of the 39 & 40 Geo. 3, c. 99, in that not pawned by him with the appellants on the behalf, on the 27th May 1869, and realised the sum 28th Nov. 1867, for 13s., was heard and determined of 11. 6s., of which the pawnbroker was entitled to by me, the said parties respectively being then pre-15s. for principal, 4s. 3d. for interest, and 1s. 6d. sent, and upon such hearing the appellants were duly for necessary costs and charges of sale, leaving an convicted by me, of the said offence, and I adjudged | overplus of 5s. 3d. due to the respondent.

MAG. CAS.-VOL. VI.

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