REG. v. RILEY. 1853. LarcenyTaking by mistake. upon her afterwards, the judges held that there was no felonious taking but merely a breach of trust. Grey, contrâ, was not called upon. JUDGMENT. POLLOCK, C. B.-We are all of opinion that the conviction is right. The case is distinguishable from those cited. R. v. Thristle decides only that if a man once gets into rightful possession, he cannot, by a subsequent fraudulent appropriation, convert it into a felony. So in R. v. Thurborn, in the elaborate judgment delivered by my brother Parke on behalf of the court of which I was a member, the same rule is laid down. It is there said that the mere taking up of a lost chattel to look at it, would not be a taking possession of it; and no doubt that may be done without violating any social duty. A man may take up a lost chattel and carry it home, with the proper object of endeavouring to find the owner; and then afterwards, if he yields to the temptation of appropriating it to his own use, he is not guilty of felony. In Leigh's Case, also, the original taking was rightful, but here the original taking was wrongful. I am not desirous of calling in aid the technicality of a continuing trespass; and I think this case may Judgment. be decided upon the ground either that there was no taking at all by the prisoner in the first instance, or a wrongful taking, and, in either case, as soon as he appropriates the property, the evidence of felony is complete. PARKE, B.-I think that this case may be disposed of on a short ground. The original taking was not lawful, but a trespass, upon which an action in that form might have been founded; but it was not felony, because there was no intention to appropriate. There was, however, a continuing trespass up to the time of appropriation, and at that time, therefore, the felony was committed. Where goods are carried from one county to another, they may be laid as taken in the second county, and the difference between this and Leigh's Case, as well as the others cited, is that the original taking was no trespass. It was by the implied licence of the owner, and the same thing as if he had been entrusted by the prosecutor with the possession of the goods. WILLIAMS, TALFOURD, and CROMPTON, JJ., concurred. COURT OF CRIMINAL APPEAL. January 22, 1853. REG. v. DALE. (a) Stat. 9 Geo. 4, c. 61, s. 26-Application of penalties under the Alehouse Act-Conviction by borough justices-When penalty to be paid to county treasurer, and when to borough treasurer. By section 26 of 9 Geo. 4, c. 61, it is provided, that so much of any penalty imposed under that act, as is not awarded to the prosecutor, is to be paid to the treasurer of "the county or place" for which the justice was acting when the penalty was imposed : Held, that the word "place" in that section means a place for which a Court of Quarter Sessions is held. Where, therefore, a penalty was imposed by two justices of a borough, which had a commission of the peace, but no Court of Quarter Sessions, and a moiety only was awarded to the prosecutor, the treasurer of the county was held entitled to the remaining moiety. AT the General Quarter Sessions of the Peace of our Lady the Queen held at Alnwick, in the county of Northumberland, on the 20th October, in the sixteenth year of the reign of our Sovereign Lady Victoria, cf the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, and in the year of our Lord 1852, before Her Majesty's justices of the peace assigned to keep the peace of the said county, the following case was agreed upon (that is to say):— to wit. At the last Midsummer Quarter Sessions, an indictment, of which the following is a copy of the first count, and an extract from the second, was found by the grand jury to be a true bill. "Northumberland, The jurors, &c., present, that on the 19th of May, in the year of our Lord 1851, in the borough of Tynemouth, in the county of Northumberland, one Joseph Gibbon was convicted before Alexander Bartleman and Solomon Mease, Esqrs., then and there being two of her Majesty's justices assigned to keep the peace in and throughout the said borough of Tynemouth, for that on, &c., he the said Joseph Gibbon, being then and there an alehouse-keeper, and duly licensed to sell exciseable liquors by retail in his house and premises there situate, did wilfully permit disorderly conduct in his house and (a) Reported by A. BITTLESTON, Esq, Barrister-at-Law. REG. v. DALE. 1853. Case. premises, by then and there suffering persons, to the number of twenty and more, to remain fighting, drinking, and making a great noise and disturbance there at a late hour in the night, to wit, at twelve o'clock at night, against the tenor of his said licence, and contrary to the form of the statute in such case made and proApplication of penalties under vided; and the said Alexander Bartleman and Solomon Mease, in Alehouse Act. and by the said conviction, then and there adjudged the said Joseph Gibbon, for his said offence, to forfeit and pay the sum of 21. 10s., to be paid and applied according to law; and also to pay to Robert Mitchell, the complainant, the sum of 10s. for his costs in that behalf; and the said Alexander Bartleman and Solomon Mease did by the said conviction then and there order, that if the said several sums were not paid forthwith, the same should be levied by distress and sale of the goods and chattels of the said Joseph Gibbon; and in default of sufficient distress, the said Alexander Bartleman and Solomon Mease did, by the said conviction, then and there adjudge the said Joseph Gibbon to be imprisoned in the house of correction at Morpeth, in the said county of Northumberland, there to be kept to hard labour for the space of one calendar month, unless the said several sums, and all costs and charges of the said distress, and of the commitment and conveying of the said Joseph Gibbon to the said house of correction, were sooner paid. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Alexander Bartleman and Solomon Mease did, at the time of making the said conviction, award one moiety of the said penalty to the use of the said Robert Mitchell, the said complainant, and the prosecutor of the said Joseph Gibbon for the said offence. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Joseph Gibbon did thereupon afterwards, to wit, on the day and year first aforesaid, pay the sum of 27. 10s. to one Henry Dale, late of the borough aforesaid, in the county aforesaid, gentleman, and who then was and still is clerk of her Majesty's said justices assigned to keep the peace of our said Lady the Queen, in, for and throughout the said borough; and the sum of 27. 10s. was so paid to the said Henry Dale, and he then received the same as such clerk as aforesaid, and for the purpose and in order that it should forthwith be paid by him to the parties to whom the same was to be paid, in pursuance of and according to the said conviction, and the statutes in such case made and provided, to wit, one moiety to the said Robert Mitchell, as such prosecutor as aforesaid, and the remainder to the treasurer of the said county. And the jurors aforesaid, upon their oath aforesaid, do further present, that the justices of our said Lady the Queen assigned to keep the peace of our said Lady the Queen in and throughout the said borough, were, at the time of making the said conviction, and thence hitherto have been, acting and empowered to act within the said borough, by and under a commission of the peace from our Lady the Queen, which said commission did not nor does contain any grant of a court of quarter sessions of the peace for the said borough, and our said Lady the Queen had not then, or at any time since, granted that a separate court of quarter sessions of the peace for the said borough should be holden in and for the said borough, nor were there then or at any other time any separate general or quarter sessions of the peace holden in or for the same. And the jurors aforesaid, on their oath aforesaid, do further present that, after the said sum of 21. 10s. was so paid to the said Henry Dale as aforesaid, it became and was his duty to pay one moiety of the said sum of 21. 10s. to one William Fenwick Blackett, Esq., who at the time of the making of the said conviction was, and from thence hitherto hath been and still is, treasurer of the said county of Northumberland, according to law, and to the statutes in that case made and provided. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Henry Dale, well knowing the premises, although a reasonable time for his paying the said moiety of the said sum of 27. 10s. to the said treasurer had elapsed long before the day of taking this inquisition, and although the said treasurer hath at all times been ready and willing to receive and give him a receipt for the same, hath yet hitherto unlawfully and contemptuously neglected and refused to pay, and still neglects and refuses to pay, the said moiety of the said sum of 21. 10s. or any part thereof to the said treasurer, and he wrongfully and unlawfully detains the same and every part thereof from him, contrary to his duty in that behalf, against the form of the statute in that case made and provided, and against the peace of our Lady the Queen, her crown and dignity.' There is a second count in the indictment, the same with the first, word for word, with this addition: "And the jurors aforesaid, upon their oath aforesaid, do further present that the said Alexander Bartleman and Solomon Mease, in the making of the said conviction, acted as such justices as aforesaid for the said county." The usual process for that purpose having been issued, the defendant entered into a recognizance to appear at the next quarter sessions to try and answer to the said indictment. At the Michaelmas Quarter Sessions, held 20th October, 1852, the said indictment was tried, and the jury found the defendant guilty. Whether the defendant is guilty or nor depends upon the construction which may be put upon the public acts of Parliament relating to this question, and which are to form part of this case. The borough of Tynemouth was incorporated by royal charter, dated 6th August, in the year of our Lord, 1849, and a commission of the peace was granted to certain persons therein named, dated 26th March, in the year of our Lord, 1850; but no Court of Quarter Sessions was thereby granted. It is admitted, for the purposes of this case, that the defendant had paid over the moiety of the said fine to the treasurer of the borough of Tynemouth. Upon this, counsel for the defendant moved in arrest of judgment, contending that, upon the true construction of the statutes, he had duly discharged himself by paying over the money to the treasurer REG. V. DALE. 1853. Application of penalties under "Alehouse Act. Case. REG. v. DALE. of the borough of Tynemouth. On the other hand, counsel for the prosecution contended that he had not discharged himself, as it was his duty to pay the moiety of the said fine to the treasurer of the county of Northumberland, the borough of Tynemouth being part and parcel of the county, and there being no grant of a Court Application of of Quarter Sessions to that borough. 1853. penalties under Alehouse Act. Case. Accordingly, no judgment was passed, and the court postponed all further proceeding to the next sessions, and granted a case for the opinion of the Justices of either Bench, or the Barons of the Exchequer under the statute. The question for the opinion of the court is : Whether the defendant is properly found guilty upon the indictment for neglecting and refusing to pay over one moiety of the said fine to the treasurer of the said county of Northumberland. If he is, the court will, at the next sessions, pronounce judgment against him. If he is not, he will be discharged from the said indictment. The 26th section of 9 Geo. 4, c. 61 (the Alehouse Act), enacts that it shall be lawful for any justice before whom any penalty shall be recovered under the provisions of this act, to award, if he shall think fit, any portion of the same, not in any case exceeding one moiety thereof, to the use of the prosecutor, and the remainder to the treasurer of the county or place for which such justice shall then act; and the said treasurer shall pay the same to the credit of such county or place, and shall duly account for the same. By section 33 of the same act it is enacted :-"That every justice before whom any such conviction shall have been made, shall return the same, or cause it to be returned, to the general or quarter sessions of the peace holden for the county or place wherein the offence shall have been committed, and it shall be then and there delivered to the clerk of the peace or other person acting as such, to be by him filed or enrolled amongst the records of the said court; and the certificate of the clerk of the peace of such conviction, which he is hereby required to grant, on demand, upon payment of a fee of one shilling, shall be legal evidence of every such conviction." By sect. 37 (interpretation clause), reciting:-"And in order to remove doubts as to the meaning of certain words in the act, be it enacted that the word 'justice' shall be deemed to mean justice of the peace, and that the words 'treasurer of the county or place' shall be deemed to include any officer acting in such capacity, or charged with the receipt and expenditure of moneys from and out of which the cost of public prosecutions have been usually defrayed; and the words 'clerk of the justice' shall be deemed to include any person acting as such; and the words 'county or place' shall be deemed severally to include any county, riding, division of the county of Lincoln, hundred, division of a county, liberty, division of a liberty, county of a city, county of a town, city, cinque port, or town corporate; and the words division or place' shall be deemed to include any division of a county or riding, liberty, |