and if none has been chosen, some of his creditors should give security for costs before the action ought to proceed. 1824. HEAFORD v. Rule absolute. M'KNIGHT. Exparte ALDRIDGE. Thursday, February 5. it an offence to be found uncustomed ble to be sent on board a he is fit and King's ship, if able to serve in the navy, and ON a former day a writ of habeas corpus issued to bring The 3 Geo. 4. up Robert Aldridge from the gaol of the borough of Has- c. 110. makes tings in the county of Kent, for the purpose of being dis- for any person charged, on the ground of a defective conviction under the carrying and 3 Geo. 4. c. 110. The gaoler now brought up the pri- conveying, &c. soner, and in his return to the writ set out a warrant of brandy, and commitment founded on the following conviction, which of one or more "upon the oath had been removed by certiorari. "Be it remembered, credible witness or witthat on &c. at, &c., Robert Aldridge hath been duly con- nesses," the victed before me, E. M. one of his Majesty's Justices of offender is liathe Peace residing near the place where the offence was committed, of having, within three months last past, to wit, on, &c., at &c., (he the said Robert Aldridge, then and now being a subject of his present majesty,) been found carry- if not, to pay ing and conveying and assisting in carrying and conveying, a pecuniary penalty. contrary to the form of the statute in that case made and Where a conviction stated provided, divers, to wit, eight gallons of foreign brandy, that R. A. was then and there liable to forfeiture, under and by virtue of an act of parliament relating to the revenue of customs and excise in the United Kingdom, for that the said brandy, being goods liable to the payment of customs and other duties, had been then and there unshipped with intention to be laid on land, customs and other duties not being first paid without stating or secured, contrary to the form of the statute, &c. is this day in like manner proved, on the oath of Hancock, to and before me the said Justice, that the said brandy was then and there, to wit, on &c., at &c., seized duly convicted before the Justice, of having been found carrying and conveying" brandy liable to seizure, And it that he had Joseph and taken from the said Robert Aldridge; and that he, the said Robert Aldridge, (being a subject of his said majesty G 2 been convicted of that offence upon the oath of a cre dible witness:" Held that the conviction was bad, and the defendant was discharged. 1824. Exparte ALDRIDGE. as aforesaid,) was then and there found, taken, stopped, arrested, and detained by one J. G. F.; he, the said J. G. F., then and there being an officer of his Majesty's navy, and brought and carried before me the said justice, residing near to the place where the said Robert Aldridge was so found, taken, arrested and detained by the said J. G. F. as aforesaid; and that the said Robert Aldridge is not fit and able to serve in the navy; I do therefore adjudge, that the said Robert Aldridge hath, for such offence, forfeited the sum of 100l., pursuant to the act passed in the third year of Geo. 4th, entitled, An Act, &c." Platt now moved, that the defendant be discharged, on the ground that nothing was shewn on the face of the return to authorize his detention. By the statute the conviction can only take place upon confession, or upon the oath of one or more credible witness or witnesses. Now it does not appear that this conviction has taken place upon the oath of any witness, still less upon the oath of a credible witness. The conviction, it is true, begins by stating, that the prisoner "hath been duly convicted," but that is not sufficient. It must be shewn, that he has been duly convicted on the oath of a credible witness; but no witness whatever is mentioned from whose testimony it appears that the prisoner was found "carrying and conveying" the quantity of brandy mentioned, which is the offence, if any has been committed. There is nothing in the remaining part of the conviction to help this objection. The Justice goes on," and it is this day in like manner also proved, on the oath," &c. Now there is nothing to which the words "in like manner" can refer, because there was nothing before stated to have been proved on oath, still less was the manner of the proof set out. The conviction says, that the defendant is convicted, but nothing appears to have been proved against him. The offence consists in being in possession of uncustomed brandy at a certain time, but there is no proof that he has been convicted of that offence. Shepherd, contrà. The statute 3 Geo. 4. c. 110. (a) gives a form of conviction, which though it has not been strictly pursued in this instance, still, upon the whole, it will be found that this conviction is sufficient both in form and substance. When the Justice begins by stating that the defendant has been duly convicted before him, the Court will reasonably intend that every requisite of the statute has been observed. Admitting that in that part of the conviction no mention is made of the description of proof by which the offence is substantiated, still what follows cures the defect. The first part of it is merely a description of the offence of which the defendant has been duly convicted, and then the Justice sets out the evidence whereon the conviction has proceeded. The words "in like manner" may be referrible to the words "hath been duly convicted," that is, "in like manner duly convicted on the oath of Joseph Hancock." It is manifest, upon taking the whole conviction together, that the offence was proved upon the oath of Joseph Hancock; and if that be so, then the conviction is right. ABBOTT, C. J.-It is not stated on the face of this conviction to have been proved, on oath, that the defendant was found carrying and conveying the brandy in question, and that is the offence alleged against him. All that is said in the beginning of the conviction is, that he has been duly convicted. If the Justice had gone on and said, that it had been proved on oath that the defendant had been found. carrying and conveying, it would have been sufficient. In (a) The form in the schedule to that statute is as follows: "Be it remembered, that on the - day of —, in the year, &c. A. B. hath been duly convicted, before me, one of his Majesty's justices of the peace, &c. of [here state the offence] by him the said A. B. committed against the provisions of the acts of parliament made and passed for the prevention of smuggling; which offence hath been duly proved before me, on the oath of one or more credible witnesses; and the said A. B. being a seafaring man, and fit and able to serve his Majesty in his navy, I do hereby adjudge the said A. B. to serve in his Majesty's naval service, pursuant to the act passed in the third year of King George the Fourth, intituled, &c. Given," &c. 1824. Exparte ALDRIDGE. 1824. Erparte ALDRIDGE. stead of which he states what had been proved. The mere statement that he hath been duly convicted, without shewing that the offence was proved on oath, is not sufficient, and I see nothing to which the words "in like manner" are referrible. It appears to me therefore that this conviction is bad, and the prisoner must be discharged. BAYLEY, and HOLROYD, Js., (a) concurred. (a) Best, J., was absent. Discharged. Thursday, February 5. To an action of debt on bond, conditioned for the payment of 500l. by two instalments, defendant pleaded, "that he by his agent THIS AMORY and Another v. MERYWEATHER. was an action of debt, upon a bond dated the 13th May, 1822, for 1,000l. The defendant, after craving oyer of the bond, which was conditioned for the payment of 500l. by two separate instalments, the first on the 13th May, 1823, pleaded, first, the general issue, non est factum. Second, that defendant, on the 18th May, 1817, by one Matthew White, being the agent and acting for and on behalf of defendant, made and entered into divers unlawful contracts and agreements with divers persons to defendant unknown sale of shares for the purchase and sale of shares in the 3 per cent. stock in the public funds; that to the amount of 10,000l.; that those contracts were not the contracts performed, but that White, as the agent and acting for and on behalf of defendant, afterwards voluntarily paid and W. made unlawful contracts for the purchase and were not per formed; but gave W. as agent for defendant voluntarily paid 500l. to compound the differences, against the form of the statute; that to secure to W. the repayment of that sum, defendant gave his promissory note to W., which W. indorsed to plaintiffs long after it had become due; that plaintiffs afterwards threatened to sue defendant on the note, and that defendant in fear of that suit, and at the request of plaintiffs, gave the bond, which plaintiffs accepted in lieu of the note and the money thereby secured, they well knowing that the note had been given for the purpose and on the occasion in the plea mentioned." The evidence was that W. received the note as a security for money which he was at some future time to pay for stock-jobbing transactions; and that plaintiffs took the note after it was due, and had notice of the illegal consideration before the bond was given. Held, first, that the evidence did not support the plea which alleged that the note was given to secure the repayment of money already advanced by W.; and second, that as the note was taken after it was due, and the boud, after notice of the illegal consideration, they were both equally void, and no action could be maintained on the latter; but liberty was given to the defendant to amend his plea on payment of costs, and to the plaintiffs to reply de novo. to the several persons with whom the contracts were made, the sum of 5007., in satisfaction of the respective differences for the non-performance of the contracts by defendants, contrary to the form of the statute in that case made and provided; that defendant, for securing to White the repayment of 4991. 10s., parcel of the sum of 500l. so voluntarily paid by White, and for no other purpose, on &c., at the request of White, made a promissory note, whereby he promised to pay, three months after the date thereof, to White, or his order, the sum of 4997. 10s.; that White indorsed the note to plaintiffs, who well knew that the note had been made by defendant for the purpose and on the occasion aforesaid; and that when the note became due, plaintiffs having threatened to sue defendant upon the note, defendant entered into the bond instead of the note and for payment of the money secured thereby. Third, after stating as before that the unlawful contracts were made, that White paid the sum of 500l. for the differences, and that defendant gave the note for securing the repayment of that sum to White; "that, before the payment of the said note, and long after the same had become due and payable, according to the tenor and effect thereof, to wit on 1st January, 1820, White indorsed the same to plaintiffs; that afterwards, to wit on 13th May, 1822, plaintiffs threatened to commence an action against defendant for the recovery of the said sum of money in the said note mentioned, and thereupon defendant, in fear of the said action, did, at the request of plaintiffs, make and seal, and as his act and deed deliver to plaintiffs the said writing obligatory in the said declaration mentioned, and plaintiffs received and accepted the same in lieu of the said last mentioned promissory note, and of the said sum of money so purporting to be secured thereby, including also therein the sum of 5l. 5s., for the stamp impressed on the said writing obligatory and the costs thereof, and on no other account and for no other consideration whatsoever, plaintiffs then well knowing that the said promissory note had been made and drawn and delivered by defendant on the 1824. AMORY V. MERYWEATHER. |