REG.

v.

FOSTER.

1852.

Poyner, the millwright, described the injuries. The oak silling and the brickwork under it had given way and sunk, and the carriage went down with it. Two days before, every thing was in order. The spur was new. The actual damage done to the squeezers was three shillings, and the total damage to the machine five shillings. The value of the whole machine was five thousand pounds. He included the silling as part of the machine. If the machinery. silling had not given way, the probable damage would have been upwards of one thousand pounds.

The sledge-hammer was produced. Its weight was fourteen or fifteen pounds.

When the prisoner was taken into custody, he said, "I took the tongs to fetch the sledge to clean my bars, and took hold of the 'stail' (the handle of the hammer) with the tongs, and took it down the race and put it under the squeezers the same as a ball."

Rupert Kettle, at the close of the case for the prosecution, objected that the offence charged was not made out. First, the act must be shown to have been done wilfully and maliciously, and express malice must be proved. In the case of Rex v. Newill, R. & M. C. C. 458,) (b) which was an indictment under the same statute (7 & 8 Geo. 4, c. 30,) it was held, that an intention to injure another person, and not the owner of the property, was sufficient to support the indictment charging the intent to be to injure the owner; but still express malice to some one was proved in that case. The 25th section of the statute did not get rid of the objection, for it contemplated express malice to some person. (c) There was no proof that the defendant knew the consequences that would follow from his act. PLATT, B.-Everything wilfully done, if injurious, must be inferred to be done with malice.

Kettle.-Another point was, that there was no damage to any machine or engine within the statute. (d) The injury was to the silling, and not to the machine.

PLATT, B.-You say that the machine is only that part in motion, and not what it rests upon.

Kettle.-Exactly so.

(b) In that case the prisoner was convicted on an indictment charging him with maliciously, &c. setting fire with intent to injure Joseph Chettle. The property fired belonged to him, but the jury found the prisoner guilty with intent to injure Charles Smith, and that there was no intent to injure Chettle, except so far as by law it must be so considered. It was held that the conviction was good.

(c) Every punishment and forfeiture by this act imposed on any person maliciously committing any offence, whether the same be punishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether the offence shall be committed from malice conceived against the owner of the property in respect of which it shall be committed, or otherwise."-7 & 8 Geo. 4, c. 30, s. 25.

(d)"If any person shall unlawfully and maliciously cut, break, or destroy, or damage with ictent to destroy or to render useless, any threshing machine, or any machine or engine, whether fixed or moveable, prepared for or employed in any manufacture whatsoever (except the manufacture of silk, woollen, linen, or cotton goods, or goods of any one or more of those materials mixed with each other, or mixed with any other material, or any frame-work knitted piece, stocking, hose or lace), every such offender shall be guilty of felony," &c.—7 & 8 Geo. 4, c. 30,

8. 4.

Maliciously damaging

REG.

V.

FOSTER.

1852.

Maliciously damaging machinery.

PLATT, B.-The whole machine does not move when in work. What do you say to the parts of the machine not in motion?

Kettle. The whole machine sank together. Another objection. is founded upon the nature of the injury. The statute speaks of cutting, breaking, or destroying, or damaging with intent to destroy or to render useless. In this case there was no cutting, no breakage, no destruction; only a displacement. A displacement is not within the statute. A fourth point was, that the injury must be done with intent that a particular consequence should ensue. There was no intent to destroy in this case. The prosecution was bound to show an intent to destroy the machine or render it useless, or at least to prove facts and circumstances from which that intent may be inferred.

Vaughan for the prosecution.-The indictment is sustained by the evidence which brings the case within the statute. Besides cutting, breaking and destroying, the statute says "or damage." The effect of the prisoner's act might have been only a displacement; but if that displacement damaged the machine, that is sufficient.

PLATT, B.-You contend that if the machine were removed and placed in the yard of the manufactory, that would be within the act.

Vaughan.-Yes. The term "damage" was introduced to include other offences not included in the words cutting, breaking, or destroying. If a machine is bent, that would be damage falling within the purview of the act.

PLATT, B.-The millwright says the sill is part of the machine. I doubt, however, whether a displacement is sufficient, but I shall not decide definitively here. I shall reserve the point, and speak to my learned brother Mr. Justice Wightman about it. With respect to the intent, that is for the jury to judge of.

The trial then proceeded, and the prisoner was convicted.

On the following day, Mr. Baron Platt said he had consulted with Mr. Justice Wightman on Abraham Foster's case, and he was of opinion that a dislocation or disarrangement of a machine was within the statute, and that the silling was to be considered as part of the machine; consequently the prisoner was rightly convicted.

OXFORD CIRCUIT.

STAFFORD SPRING ASSIZES, 1852.

March 16.

(Before GREAVES, Q. C.)

REG. v. BAILEY. (a)

False pretence-Variance between averment and evidence.-Power of amendment under the 14 & 15 Vict. c. 100, s. 1.

In an indictment for obtaining money by false pretences, the pretence alleged was, that the defendant had been to B. on behalf of the prosecutrix, and had served a certain order of affiliation on one J. B., and that he was entitled to receive for serving the said order the sum of five shillings:

Held, that this averment was not supported by proof that the defendant said that he had been with the order to B. to serve J. B. and left it with the landlady where J. B. lodged, he being out, &c.

Held, also, that this was not an amendable variance within the meaning of the statute 14 & 15 Vict. c. 100, s. 1.

THE prisoner, George Edward Bailey, was indicted for obtaining money by means of false pretences.

The indictment alleged that he pretended to Emma Fletcher, of West Bromwich, &c. "that he, the said George Edward Bailey, had been to Bretley, in Derbyshire, on behalf of the said Emma Fletcher, and served a certain order of affiliation on one John Bell (meaning John Bell of Bretley aforesaid, named in the said order of affiliation,) and that he, the said George Edward Bailey, was then entitled to have and receive of the said Emma Fletcher, for serving the said order, the sum of 5s.; whereas in truth and in fact the said George Edward Bailey had not been to Bretley, in Derbyshire, on behalf of the said Emma Fletcher, to serve the said order of affiliation on the said John Bell; and whereas the said George Edward Bailey was not then entitled to have and receive of the said Emma Fletcher the sum of 5s., by means of which false pretence the said George Edward Bailey obtained from the said Emma Fletcher two pieces of the current coin called half-crowns, of the moneys of the said Emma Fletcher," &c.

Emma Fletcher, the prosecutrix, deposed that the prisoner made the following statement to her:-"He told me he had been with the order to Bretley, to serve one Bell, and left it with the land

(a) Reported by J. E. DAVIS, Esq., Barrister-at-Law.

REG.

v.

BAILEY.

1852.

lady at the Chesterfield Arms there, where Bell lodged, he being out; that he would not overcharge for his journey," &c.

Huddleston, for the prisoner, submitted that the allegation in the indictment was not supported by the evidence. The indictment alleged that the defendant pretended that he had served the False pretences order of affiliation personally on John Bell, whereas what the defendant said was, that he had left the order with a third person to give to him.

-Practice

Variance.

Scotland, for the prosecution, contended that the substantial charge was sufficiently proved. The defendant clearly intended to cause the prosecutrix to believe that the order had reached Bell's hands, and that a service had been effected by his instrumentality.

GREAVES, Q. C., after retiring to consult Mr. Baron Platt, sitting in the Crown Court, said he was sorry to stop a case on this point, but both he and Mr. Baron Platt were clearly of opinion that the allegation in the indictment meant a personal service, and that consequently the pretence was not proved as alleged.

Scotland then applied to amend the indictment by making the allegation correspond with the evidence.

GREAVES, Q. C., said that he was afraid that he had no power to order the amendment under the recent act, 14 & 15 Vict. c. 100, s. 1. As originally drawn, the bill provided for such a case, but those words had been struck out in the House of Lords. The section, as it now stands, only provides for a variance between the statement in the indictment, and the evidence offered in proof thereof, in the name of any county, riding, division, city, borough, town corporate, parish, township, or place mentioned or described in any such indictment, or in the name or description of any person or persons, body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offence charged therein, or in the name or description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged by the commission of such offence, or in the christian name or surname, or both christian name and surname, or other description whatsoever, of any person or persons whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein." In this case the variance could not be said to be in the name or description of any matter or thing named or described in the indictment. He was not sorry this case had occurred, for it illustrated the utility and necessity for the provision originally contained in the bill.

The prisoner was therefore acquitted.

HOME CIRCUIT.

GUILDFORD, 1852.

August 3.

(Before Mr. JUSTICE MAULE)

REG. v. SMITH AND ANOTHER. (a)

13 Eliz. c. 5, s. 3-Indictment-Fraudulent conveyance. For any offence within 13 Eliz. c. 5, s. 3, the offender may be proceeded against by indictment.

In such an indictment it is not necessary to set out the specific facts which constitute the fraud.

THE defendants were charged upon the following indictment under the 3rd section of the 13 Eliz. c. 5, (b) for making a fraudulent conveyance.

Surrey, The jurors for our Lady the Queen upon their oath Indictment. to wit. present, that heretofore and before the committing of the offence hereinafter next mentioned, to wit, on the 1st day of January in the year of our Lord 1850, and on divers other days and times heretofore, Wm. Smith hereinafter mentioned had committed and caused to be committed near to and in the neighbourhood of certain, to wit, twenty-two messuages, of and belonging to one T. C. M., to wit, at West Hill Grove, in the parish of Battersea, in the county of Surrey, divers nuisances and injurious acts, matters and things, to the great damage and injury of the said T. C. M., to wit, to the amount of 300l. and upwards. Wherefore the said T. C. M. heretofore, to wit, on the 27th day of January in the year of our Lord 1851, did commence a certain action on the case against the said W. S., to wit, in the court of our Lady the Queen before the Queen herself, whereby to recover from the said W. S. the lawful damages sustained by the said T. C. M. for and in respect of the said nuisances and injurious acts, matters and things aforesaid.

"That thereupon such proceedings were had and taken in the said action, that afterwards, to wit, at the Assizes holden at

(a) Reported by B. C. ROBINSON, Esq., Barrister-at-law.

() It has been thought right to set out this indictment at some length, as it is the only form of the kind to be found in the books. It was drawn, after much consideration, by the Deputy Clerk of Assize on the Home Circuit, and is believed to be the only instance in which an attempt has been made to render this section the basis of a criminal prosecution, a fact somewhat remarkable, considering the extensive nature of its operation. The facts of the case are sufficiently shown by the indictment itself.