REG. v. STONE. 1853. Perjury Affidavit in Admiralty suit taken by Master in Chancery. sustain the objection which has been raised in the present instance. The affidavits in question purport to have been sworn before a Master Extraordinary in Chancery, who derives his authority solely from the appointment of that court. Upon the face of these affidavits, it appears that the order of the Court of Chancery has not been complied with in the form in which they have been taken. It is clear therefore, that they would not be received as admissible evidence in proceedings in the Court of Chancery; and it would, I conceive, be an anomaly if I should admit them as evidence in this court. Another reason why they should not be admitted arises from the circumstance adverted to by the counsel for the owners, viz.: that the authority of the Masters Extraordinary in Chancery is confined within certain limited distances. How is the court to ascertain whether these affidavits have been properly taken within the prescribed distances, unless the fact is duly certified in the jurat? They may have been taken by the Master beyond the limits of his authority; in that case they would be a mere nullity; however false their depositions might be, the witnesses could not be prosecuted for perjury. Would it not then be detrimental to the attainment of justice that such evidence should be received which supposing it to be wilfully false, should be of a kind or taken in a manner that would not stand the test of an inquiry in a Criminal Court? For these reasons I must reject these affidavits, and I Argument. direct the practice in the registry to be altered in future; at the same time as it has been stated to the court that similar documents have been heretofore received as evidence, I shall give the salvors the opportunity of having the affidavits re-sworn.' It is evident therefore, that in the Court of Admiralty no doubt is entertained as to the jurisdiction of the Masters Extraordinary to take these affidavits; and this opinion may well be founded upon the circumstance that the Court of Chancery itself has an Admiralty jurisdiction, and that Masters in Chancery appear to form part of the original machinery of that Court. "Cancellario associentur clerici honesti et circumspecti, domino Regi jurati, qui in legibus et consuetudinibus Anglicanis notitiam habent pleniorem, quorum officium sit supplicationes et querelas conquerentium audire et examinare et eis super qualitatibus injuriarum ostensarum debitum remedium exhibere per brevia regis.' (Fleta, lib. 2, c. 13; 2 Inst. 407; Com. Dig. Chancery B. 5.) In Co. Litt. 260, a, b., it is said "if a man be upon the sea of England he is within the kingdom or realm of England, and within the ligeance of the King of England, as of his crown of England, and yet altum mare is out of the jurisdiction of the common law and within the jurisdiction of the Lord Admiral, whose jurisdiction is very antient." There are many authorities shewing that this ancient Admiralty jurisdiction may be exercised by the Court of Chancery; and there seems good reason for supposing that the Masters were commissioners for both courts. Mr. Edwards, in a note to p. 8 of his "Treatise on the Jurisdiction of the High Court of Admiralty of England," says, "An ordinance of Richard I. is also quoted by Prynne, as extracted from the Black REG. v. STONE. 1853. in Chancery. Argument. Book of the Admiralty, made at Grimsby, to the effect that if the admiral by the King's command arrested any ships for the King's service, and he or his lieutenant returned and certified the arrest into Chancery, the master or owner could not be admitted to plead against the return." So in 31 Hen. 6, Rot. Parl. vol. 5, p. 268, No. 68, PerjuryAffidavit in to the King our Soveraine Lord by the avis and assent of the Admiralty suit Lords spiritual and temporal, and the Commons of the realme &c., taken by Master to ordein and establish that if any of his subjects attempt or offende upon the see or in any porte or against any person or persons estraungiers &c., or against any other persons of youre liege people, the Chancellor of England for the tyme beying as for deliverance of any such person, &c., or for restitution to be made to every such person so robbed or despoiled of shipp, or godes, or of the value thereof, have authority callying to hyme any of the juges of the one or other bench upon bille of complaynt to make such process out of the said Chancerie as well against all such offenders to bring them into the Kings Chancerie there to answer to the parties in general." The stat. 25 Hen. 8, c. 19, s. 4, provides "for lack of justice at or in any the courts of the Archbishops of this realm," that the parties grieved may appeal to the King's Majesty in the King's Court of Chancery, and that upon every such appeal a commission shall be directed under the Great Seal to such persons as shall be named, &c. like as in case of appeal from the Admiral's Court." Again, the jurisdiction is asserted in stat. 8 Eliz. c. 5, which recites its object to be "for the avoiding as well of long and tedious suits, as also of great charges and expenses in prosecuting of civil and marine causes by reason of divers appeals permitted to be made," &c. and enacts that all and every such judgment and sentence definitive, as shall be given or pronounced in any civil. and marine cause, upon appeal lawfully to be made therein to the Queen's Majesty in her Highness's Court of Chancery, by such commissioners or delegates as shall be nominated, &c., as it hath been heretofore used in such cases, shall be final, &c. So in the MSS. of Lord Nottingham, as given in the Appendix to 3 Swanst. Rep. 604, there is a case of Blad v. Bamfield, 21 Nov. 26 Car. 2 (1694), in which, upon application for a perpetual injunction to restrain proceedings against a Dane for the seizure of property of English subjects in Ireland, the seizure being sanctioned by the Danish authorities, the Lord Chancellor said:- "I think never was any cause more properly before the court than the case in questionfirst, as it relates to a trespass done upon the high seas, and though it may seem to belong to the cognizance of the Admiral, yet I took the occasion to show that the Court of Chancery hath always had an Admiralty jurisdiction, not only per viam appellationis but per viam evocationis too, and may send for any cause out of the Admiralty to determine it here: of which there are many precedents in Noy's MSS. 88; and in my little book, in the preface de officio Cancellari, s. 18, and in my parchment book, tit. Admiralty. In Denew & Cullen v. Stock (Rep. Cas. in Ch. temp. Finch, 437), the defendant having obtained a decree in the Admiralty of the Cinque Ports, whereby a ship was adjudged to him, the Lord COLERIDGE, J.-Assume that there is a concurrent jurisdiction, still the question arises, whether the officers of the Court of Chancery have authority to administer the oath, whilst the cause remains in the Admiralty Court. REG. v. STONE. 1853 PerjuryAffidavit in Admiralty suit taken by Master in Chancery. P. Thompson. The authorities show how the practice has origi- Argument. nated, and how the Masters Extraordinary have come to be regarded for this purpose as officers of the Admiralty Court. PLATT, B.-There is no evidence of their ever having been appointed officers of that court. PARKE, B.-What is the earliest instance of the practice? P. Thompson referred to the case of The Sylvan, 2 Hagg. Ad. Rep. 155; where, in a case of damage by collision, an affidavit sworn in Scotland before a commissioner for taking bail in prize causes, was held irregular. PLATT, B.-There the court said, "it has been usual to require such affidavits to be made here, or to be taken by commission;" "made here" must mean here in court. COLERIDGE, J.-I don't see how that case makes out the practice. P. Thompson.-Perhaps the statute 14 & 15 Vict. c. 99, s. 16, may be thought to apply to this case. It enacts, that "every court, judge, justice, officer, commissioner, arbitrator or other person, now or hereafter having by law, or by consent of parties, authority to hear, receive and examine evidence, is hereby empowered to administer an oath to all such witnesses as are legally called before them respectively." COLERIDGE, J.-How can that apply here. The Master Extrordinary was not authorized either by law or by consent of the parties to receive evidence. Cross was not heard in reply. POLLOCK, C. B.-I am of opinion that this conviction is wrong, because the affidavit was sworn before a Master Extraordinary, REG. v. STONE. 1853. who has not, by any commission, jurisdiction to administer an oath in matters arising in the Court of Admiralty. The fact that the Court of Admiralty has acted, or will act on such an affidavit, can not confer authority to administer the oath: and it may be, that that court has chosen to act upon affidavits so sworn, because any person who falsely made such an affidavit in order to impose upon Admiralty suit the court, would unquestionably be guilty of a misdemeanor, taken by Master though he could not be convicted of perjury. Perjury Affidavit in in Chancery. PARKE, B.-I am of the same opinion. The office of a Master in Chancery is coeval with the history of that Court; and there is no restriction on the Lord Chancellor as to the number of such Masters he may make. That, however, affords no proof that the Masters have authority to take affidavits on oath in Admiralty suits, and which are to be afterwards used in the Court of Admiralty. The authorities relied on for the prosecution show, that on a proceeding in Chancery, if the Court of Chancery has Admiralty jurisdiction, the Masters might take an affidavit; but that proves nothing when the cause is in the Court of Admiralty. I quite agree, that the party making the false affidavit with a view to its being used in the Admiralty Court, would be guilty of a misdemeanor-for he would thereby attempt to defraud a court. Coleridge, J., Platt, B., and Williams, J., concurred. Conviction quashed. COURT OF CRIMINAL APPEAL. November 19, 1853. (Before POLLOCK, C. B., PARKE, B., COLERIDGE, J., REG. v. BAILEY. (a) Possession of implements of housebreaking-Intent to commit felonyStat. 14 & 15 Vict. c. 19, s. 1. By stat. 14 & 15 Vict. c. 19, s. 1, it is made a misdemeanor if any person shall be found by night having in his possession, without lawful excuse (the proof of which shall lie on such person), any pick-lock, key, crow, jack, bit, or other implement of house-breaking. Held, that in order to constitute the offence, the possession need not be with intent to commit a felony. THOMAS BAILEY was tried at the Middlesex sessions on Monday, the 31st Octber, 1853, before Henry Witham, Esq., upon an indictment under the Act for the better prevention of Offences, 14 & 15 Vict. c. 19, s. 1. The indictment charged, that Thomas Bailey, on the 5th day of October, A.D., 1853, about the hour of twelve in the night of the same day, at the parish of St. James, Westminster, in the County of Middlesex, was found by night as aforesaid, then and there having in his possession, without lawful excuse, certain implements of housebreaking, to wit, one jemmy, and one chisel, against the form, &c. The jury found the prisoner guilty of possession, without lawful excuse, and they also found, that there was no evidence of an intent to commit a felony. It was contended on behalf of the prisoner by his counsel, in his address to the jury, that there was no evidence of an intent to commit a felony, and that such evidence was requisite; after verdict it was further contended that the omission of the words "with intent to commit a felony," rendered the indictment bad in arrest of judgment. Judgment was postponed, and the said Thomas Bailey was committed to the House of Correction at Clerkenwell, to abide the decision of the Court of Appeal. The opinion of the Court of Appeal is requested as to whether the omission of the words "with intent to commit a felony," renders the indictment bad in arrest of judgment, and whether it was necessary to prove an intent to cominit a felony. No counsel was instructed for the prisoner. VOL. VI. (a) Reported by A. BITTLESTON, Esq., Barrister-at-Law. R |