(Civil Side.)

BEFORE MR. JUSTICE BOSANQUET.

*SHELLY, Administratrix of SHELLY, v. FORD.

July 18.

A. let a horse on hire to B. for one month, B. kept it for two months, and then sold it to C.-Held, that A. might recover the value of the horse from C., although C. had acted bona fide, and had paid B. the full value.

THE first count of the declaration stated, that the intestate was the owner of a horse, which had been by him let to hire to one William Lewis; and that the defendant, to the injury of the intestate's reversionary interest in the horse, took it into his possession, and sold it. There was a similar count, stating the whole matter, except the letting of the horse, to have occurred since the death of the deceased; and there were also counts in trover. Plea-Not guilty.

It appeared that, in the month of September, 1830, the intestate had let the horse on hire to Captain Lewis, for one month; and it was proved, by the admission of the defendant himself, that, in the month of November, 1830, he had bought the horse of Captain Lewis for 107. which was then the full value of it; and that, after keeping it at livery for some time, he had sold it.

Justice, for the defendant. I submit that this action cannot be maintained. The defendant acted bona fide in the buying of the horse; and he has at least a lien upon it for the amount of 107., the sum which he has paid for it; and, in any view of the case, that sum ought to have been tendered before any action was brought.

Mr. Justice BOSANQUET (in summing up.) In this case the property in this horse was in the intestate, and Captain Lewis had only a limited interest in it; he, therefore, *when he sold it, could give the defendant no better title than he had got himself. Verdict for the plaintiff-Damages 157. Curwood, Carrington, and Jeffreys Williams, for the plaintiff. Justice, for the defendant.

[Attorneys-C. Carus Wilson and G. S. Ford.]

[*314

In general, no sale by a person who has no right to sell, is good against the rightful owner, except it be made in market overt; and it is laid down (Bac. Abr. tit. Fair, E.) that every sale made in a fair or market overt, transfers a complete property in the thing sold to the vendee, however illegal the title of the vendor. In London, every day is market-day, except Sunday; so that a sale on any of these days is as good as it would be on the fair or market-day in the country; and in London every shop, except a pawnbroker's, is a market overt for such things as the owner professes to trade in; but in the country, the market overt is confined to the particular place or spot set apart by custom for the sale of particular goods. However, the property in a horse is not changed as against the rightful owner, unless the provisions of the stat. 2 & 3 P. & M. c. 7, and 31 Eliz. c. 12, (which will be found in Burn's Justice, tit. Horses), are complied with. See also the case of Gimson v. Woodfull, ante, Vol. 2, p. 41.

As to factors and agents dealing with goods intrusted to them, see the stat. 6 Geo. 4, c. 94: and the case of Dyer v. Pearson, 4 D. & R. 653, as to the effect of the true owners allowing another to hold himself out as the owner of goods. As to the restitution of stolen goods on the conviction of the offender, see the stat. 7 & 8 Geo. 4, c. 29, s. 57, which is set out Carr. Sup. 334.

OXFORD ASSIZES.

BEFORE MR. BARON GURNEY.

*DOE on the demise of CRAKE v. BROWN.

July 19.

[*315

A counsel, to whom a retainer in a cause has been given, no brief having been delivered, cannot withdraw the record.

EJECTMENT. When this cause was called on in its order, it appeared that no brief had been delivered for the lessor of the plaintiff, and the attorney was not in Court.

Talfourd stated that he had a retainer for the lessor of the plaintiff, and wished to withdraw the record.

Mr. Baron GURNEY. A retainer without a brief does not authorise you to withdraw the record. Mr. Jervis, you are for the defendant; do you wish the Jury to be sworn, and to nonsuit the plaintiff?

Mr. Jervis. Yes, my Lord.

The Jury were sworn, and the plaintiff-
Talfourd, for the lessor of the plaintiff.
Jervis and Carrington, for the defendant.

[Attorneys-Mathews and Eyre.]

Nonsuited.

*316]

WORCESTER ASSIZES.

BEFORE MR. JUSTICE BOSANQUET.

*REX v. CROWTHER.

July 23.

An indictment which charges a forged check to be "a warrant and order for the payment of money, which said warrant and order is in the words and figures following," is good.

A forged check on the W. Bank was presented for payment at the S. Bank, where the supposed drawer never kept cash :-Held, that this was sufficient evidence of an intent to defraud the partners of the S. Bank, although there was no probability of their paying the cheek, even if it had been genuine.

FORGERY. The indictment charged the prisoner with having forged "a certain warrant and order for the payment of money, which said warrant and order is in the words and figures following-that is to say:

"WORCESTER OLD BANK. "6 Hanbury Hall, Nov. 28, 1828. "Messrs. Berwick, Wall, Isaac, and Lechmere, pay to Mr. John Perkins, or bearer, twenty-five pounds ten shillings. John Phillips."

£25: 10: 0.

with intent then and there to defraud Francis Rufford and others. There were other counts, which charged, that the prisoner did "utter," and also "did offer, dispose of, and put off," the forged instrument, knowing it to be forged.

It appeared that this check, which purported to be a check on the Worcester Old Bank, was presented by the prisoner for payment at Messrs. Rufford's bank, at Stourbridge; and it was proved that they would not pay the amount, and that no person named John Phillips kept cash with them.

Godson and F. V. Lee objected that this case must fail upon two grounds:First, because this indictment charged, in every count, that the prisoner either forged, uttered, or offered a warrant and order;" which imported that he had committed an offence with respect to two instruments; and secondly, because it could not have been done *to defraud Messrs. Rufford, as they had no [*317 customer of the name of John Phillips; and there was, therefore, not the most remote chance of their paying the money.

Mr. Justice BOSANQUET. I am of opinion that this indictment is sufficient. In each of the counts there is only one instrument set out, and it is called-"A warrant and order for the payment of money, in the words and figures following." I think it is both a warrant and an order—a warrant authorizing the banker to pay, and an order upon him to do so. With respect to the other point, I think that the prisoner going to Messrs. Rufford's and presenting this paper for payment, is quite sufficient evidence of an intent to defraud them. Verdict-Guilty.

Shutt, for the prosecution.

Godson and F. V. Lee, for the prisoner.

[Attorneys-Robesons and Pumfrey.]

By the statute 11 Geo. 4 & 1 Will. 4, c. 66, s. 3, it is enacted, "that if any person shall forge or alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or altered, any warrant or order for the payment of money, with intent to defraud any per son whatsoever, every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon." By the statute 2 & 3 Will. 4, c. 123, the capital punishment is repealed, except as to wills and testamentary papers, and certain powers of attorney; and by s. 3 of that stat. it is enacted-" That in all informations or indictments for forging, or in any manner uttering any instrument or writing, it shall not be necessary to set forth any copy or fac-simile thereof, but it shall be sufficient to describe the same in such manner as would sustain an indictment for stealing the same; any law or custom to the contrary notwithstanding."

*REX v. JANE RICHARDS. July 24.

[*318 A girl, accused of poisoning, was told by her mistress, that if she did not tell all about it that night, a constable would be sent for in the morning to take her before a magistrate; she then made a statement, which was held to be not admissible in evidence. Next day, a constable was sent for, and as he was taking her to the magistrate, she said something to him, he having held out no inducement to her to do so:-Held, that this was receivable, as the former inducement ceased on her being put into the hands of the

constable.

INDICTMENT for administering poison, called oxalic acid,(a) to Mary Duce, on the 23rd of April, 1832. It appeared that the prisoner, a girl of about 15 years of age, was in the service of the prosecutrix; and that, on the night of the 24th of April, 1832, the prosecutrix went into the prisoner's bedroom, just as she was going to bed, and told her that if she did not tell all about it that night, the constable would be sent for next morning to take her to Stourbridge, meaning before the magistrate there; and the prisoner then made a statement. Mr. Justice BOSANQUET. I think that we must not hear that.

It further appeared, that next morning a constable was sent for, who took the prisoner into custody; and while they were on the way to the magistrates' meeting at Stourbridge, she, without any inducement having been held out by the

constable, made a statement to him.

(a) See sect. 11 of the stat. 9 Geo. 4, c. 31, set forth, ante, Vol. 4, p. 372; and the case

of Rex v. Harley, Id. 369.

The prisoner's counsel objected to this statement being received, as the inducement held out by the prosecutrix must be taken to have continued. Mr. Justice BOSANQUET. I think that this statement is receivable. The inducement was, that if she confessed that night, the constable would not be sent for, and she would not be taken before the magistrates. Now, she must have known, when she made this statement, that the constable was then taking her to the magistrates. The inducement, therefore, was at an end.

*319] *The evidence was received.

Godson, for the prosecution.

Curwood and Carrington, for the prisoner.

Verdict-Not guilty.

[Attorneys-Holdsworth & F., and Collis.]

STAFFORD ASSIZES.

JONES, Assignee of STUBBS, an Insolvent, Demandant, v. BREARLY, Tenant. July 31.

On the trial of a writ of right, though the demi-mark has been tendered, the tenant must begin.

WRIT of right. At the previous assizes, four knights (who were in fact esquires returned as knights by the sheriff) elected the grand assize; and at these assizes the four knights appeared, and twelve of those whom they had chosen appeared, and were sworn as the grand assize, together with the knights.

As soon as they were sworn

Campbell, for the defendant, placed 6s. 8d. on the table of the Court, contending, that, as he had tendered the demi-mark, the demandmant must begin by proving the seisin of his ancestor.

Jervis, Talfourd, and Justice, contrà, relied on the case of Tooth v. Bagwell. Ante, Vol. 2, p. 271.

Campbell. If the demandant does not begin with proving his seisin, the inconvenience will ensue. greatest In this case a great deal of property *320] is claimed by this writ of right, and it is held by my client under several different titles, and nothing is more probable than that when all these titles are gone through by us, the demandant may prove the seisin of his ancestor as to some very small part of the property.

Mr. Justice BOSANQUET. I hold myself bound by the decision of the Court in Tooth v. Bagwell. In a case on the Northern Circuit, Mr. Baron Wood considered that there should be a previous finding of the seisin, but that is not so. The Court, in Tooth v. Bagwell, held, that the tenant should begin, though the seisin of his ancestor must be proved by the demandant at some time or other. Anciently, the tender of the demi-mark put the party on the proof of his seisin in some particular reign; but since the limitation of writs of right has been sixty years, it is held to put the party on the proof of his seisin within that time. However, the question here is, whether the demandant must prove the seisin of his ancestor in the first instance, or whether the tenant must begin. I think the tenant must begin.

The tenant began and went through his title. The demandant's leading counsel then addressed the Jury and went into his evidence; and the leading counsel for the tenant replied.

The Grand Assize found for the tenant.

Jervis, Talfourd, and Justice, for the demandant.
Campbell and R. V. Richards, for the tenant.

[Attorneys-Chilcote and White.]

*HEREFORD ASSIZES.

BEFORE MR. BARON GURNEY.

[*321

REX v. JAMES GAMMON. August 7.

If, in a case of rape, there has not been sufficient penetration to rupture the hymen, the offence is not complete.

INDICTMENT for carnally knowing and abusing Charlotte Powell, a child under ten years old.

The child proved the offence, and Mr. Woollett, a surgeon, stated, that he found considerable local inflammation about the parts of the child, and that the hymen had been recently ruptured, and that he had no doubt that penetration had taken place; and it was also proved by the mother of the child, that, on examining the child, she found semen within the pudendum.

Mr. Baron GURNEY. I think that if the hymen is not ruptured there is not a sufficient penetration to constitute this offence. I know that there have been cases in which a less degree of penetration has been held to be sufficient; but I have always doubted the authority of those cases; and I have always thought, and still think, that if there is not a sufficient penetration to rupture the hymen, it is not a sufficient penetration to constitute this offence. Verdict-Guilty.

See the cases of Rex v. Cox, ante, p. 297, and Rex v. Wedge, ante, p. 298. As, under the present state of the law, penetration is really the whole offence, it is highly proper that there should be most satisfactory evidence that it really occurred. In Russen's case, 1 Ea. P. C. 438, it was held, that there might be a sufficient penetration to constitute the offence, altough the hymen had not been ruptured.

MIDLAND SPRING CIRCUIT.

1832.

NOTTINGHAM ASSIZES.

*KNOTTS v. CURTIS.

[*322

In case for selling goods under a distress, without appraisement, if the sum produced is less than the fair value to the tenant, he may recover the difference without any allegation of special damage.