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that they breakfasted with the defendant on the morn- the case reheard on the merits. It is too late to ing of the trial, and that a witness named Matthews object to the jurisdiction when he has run his chance had been subpoenaed for the plaintiffs, but did not of an acquittal from the Quarter Sessions. appear.

[BLACKBURN, J.—But as against one of the Justicas

there was 110 waiver.] Laish, Q. C., and Sir George Honyman, showed cause. The action against Lewis and Atterbury by the de

Macnamara in support of the rule. fendant was called on at the same assizes, a verdict The conviction is bad, on the ground that the taken against them, and judgment signed. The de justices were interested. If the Court can see any fendant paid Lewis and Atterbury 31. on another pecuniary interest whatever, it will not inquire into account, and gave them 10s. because they were poor the amount. The conviction is under 8 Vict. c. 20, peoplo.

the Railway Clauses Act, and by section 3 a Justice is

defined to be a Justice who shall not be interested. Laxton supported the rule.

Regina v. Justices of Hertfordshire, 6 Q. B. 753. BLACKBURN, J.-It is not shown that the plaintiff's As to the waiver, we gave notice of our appeal witnesses could have given material evidence, or that and the grounds in proper time. After that, when it steps were taken to procure their attendance.

was too late to alter, we found one of the Justices was Rule discharged. interested ; and it was not till after the trial of the

appeal that we found Mr. Hammond was interested.

His LORDSHIP made the

Bail Court. 24 Nov. 1863.

J and Another, Justices, &c.

Rule absolute.


Railway Clauses Act-Justices Shareholders

Bail Court. REGINA v. LONDON AND NORTH Disqualification.

24 Nov. 1863. WESTERN RAILWAY COMPANY. Where Justices convict for an offence under the Railway Clauses Consolidation Act, any interest they may Lands Clauses ActSummoning Jury-Sheriff have as shareholders in the railway in question, however

a Shareholder-Inquisition-Certiorari. small, is sufficient to vitiate their judgment.

On a warrant from the promoters, a sheriffsumMacnamara had obtained a rule calling on Hammond and another, Justices of Durham, to show cause why moned a jury to assess compensation under the 39th a certiorari should not issue to bring up their convic-section of the Lands Clauses Consolidation Act: the tion of one Jabez Alexander, on the ground of interest sheriff was a shareholder in the company of the pre

moters :in the Justices.

Held, that the inquisition should be brought up by Mellish, Q.C., (Davidson with him), showed cause. certiorari, though the certiorari was taken away by the

Jabez Alexander was convicted on the 28th of Act. September last by these Justices, for travelling on the

T. Jones had obtained a rule for a ccrliorari to bring North Eastern Railway by a train other than that for which he had obtained his ticket.

up an inquisition under the Lands Clauses Act, Two questions arise :

whereby compensation was awarded to a Mr. Mercer for 1st. Whether the Justices being shareholders in the land of his taken by the defendants, on the ground North Eastern Railway, had any interest sufficient to that the sheriff who summoned the jury was a share

holder in the defendant's company. make their conviction bad.

This alleged interest can only be in relation to costs, Littler, (IVelsby with him) now showed cause. for as the Act says nothing about the penalty, it goes We did not know till after the inquisition that the not to the Railway Company, but in aid of the county sheriff was a shareholder. By the 39th section of S & rates. The only interest of the shareholders is in the 9 Vict. c. 18, the promoters in case of disputed comdividend.

pensation are to issue their warrant to the sheriff [BLACKBURN, J.-If people travel without paying, requiring him to summon a jury, “And if such sheriff surely it affects the shareholders' interests. An interest be interested in the matter of dispute, such applicaeven less than a farthing will disqualify.]

tion shall be made to the coroner of the county in The costs were not the object of the inquiry, which the lands in question or some part thereof shall and are too incidental. The rule as to an interest be situate." however small being sufficient, is confined to cases

The objection is merely formal : if the coroner had where it is a direct interest.

summoned the jury the proceedings would have been 2nd. There has here been a waiver of the objection. the same, and the assessor the same. Besides the Alexander appealed to the Quarter Sessions ; he found sheriff may be a trustee merely, and the Act takes no out the objection before ho went there, and then had cognisance of trusts.

All the houses were in [BLACKBURN, J.-The onus lies on you of showing dows of other houses near. that.)

the public street, but the place from which the offence

was committed could not be seen from any street. Littler.—No injury was sustained. Mr. Mercer

The prisoner's counsel objected that the roof of a challenged all the jurymen who were shareholders till

house was not a public place, and that the exposure only ten were left, and he consented that the case

was not public. should be tried by ten. This takes the case out of the

The Assistant Judge reserved the points. Lands Clauses Act altogether.

The Court will exercise a discretion in granting the Best, for the prisoner. certiorari, and will consider the conduct of the party The offence must be committed in a place accessible applying, and whether he was damaged by the defect to the public : which this is not. He referred to in the inquisition,

Regina v. Webb, 3 Cox C. C. 183; Regina v. Manchester and Leeds Railway Company, Regina v. Orchard and Another, 3 Cox C. C. 248. 8 Ad. & E. 413, 426;

ERLE, C.J.-We have no doubt on the point. If a Corrigal v. London and Blackwall Railway Com

man stands in a place where a great number of the pany, 5 M. & G. 219.

public may see what is done, and wilfully exposes his T. Jones, in support of the rule,

person, the offence is complete. Regina v. Manchester and Leeds Railway Company

Conviction affirmed. does not show that the certiorari is a matter of discretion. It is taken away by the Lands Clauses Act, s.

C.C.R. 145; but still the Court will interfere if the sheriff had


20 Nov. 1863. no jurisdiction. Regina v. Cheltenham Commissioners, 1 Q. B. Coram-ERLE, C.J., WIGHTMAN and WILLIAMS, JJ., 467 ;

MARTIN and BRAMWELL, BB. Hodges on Railways, 421 (3rd ed.);

Treasure Trove-Fraudulent Concealment-InRegina v. Sheffield and Manchester Railway Company, 11 Ad. & E. 194;

quisitionIndictment Averment - Evidence Dimes v. Grand Junction Canal Company, 9 Q. -Guilty Knowledge. B. 469;

The offence of concealment of treasure trove (thesauri Regina y. South Holland Drainage Company, 8 A.

inventi fraudulosa occultatio) consists in wilfully, & E. 429 ;

knowingly, and unlawfully, concealing the treasure Rez v. Aberdare Canal Company, 19 L. J. Q. B. found, from the Queen, knowing it to be found. 251.

Neither the indictment nor the inquisition need aver BLACKBURN, J.-The words of the Act are clear.

that the concealment is " fraudulent,where there is an

averment that the treasure had been unlawfully, Rule absolute. wilfully, and knowinglyconcealed.

The offence is not confined to the finder only: therefore, where an innocent finder of old gold disposed of it

as brass to the two prisoners, who knew of its finding, C. C. R.

REGINA V. THELLMAN. 19 Nov. 1863.

and knew that it was gold :

Held, that the latter were rightly convicted. Ceram-ERLE, C.J., WIGHTMAN and WILLIAMS, JJ.,

Held, also (dubitante WIGHTMAN, J.), that it was MARTIN and BRAMWELL, BB.

cvidence of the guilty knowledge of one of the two pri. Nuisance-Public Place-Thoroughfare- soners that he had told a falsehood about the value of Indecent Exposure.

the gold after it came into his hands. A man standing upon the roof of a house situate well, B., on an indictment (accompanied by an inqui.

The prisoners were convicted at Lewes, before Bramia a public street, indecently exposed his person to people sition), charging them with "unlawfully, wilfully, and standing at the windows of other houses also so situate :Held, that he was guilty of a misdemeanour at Queen the finding of certain treasure, the property of

knowingly" concealing from the knowledge of the Common Law, though the place where the offence was

the Queen. committed was not visible from the street itself.

The treasure in question consisted of curious old The prisoner was convicted in August last at the gold to the value of 5001., found by a labourer while Middlesex sessions, under an indictment for a misde- ploughing in a field, and sold by him under the immeanour at Common Law. The evidence showed that pression that it was brass to the prisoner Thomas for he had climbed on the roof of a house and indecently 58. 6d. Subsequently, it was disposed of to a jeweller exposed his person to several persons standing at the by the prisoners Thomas and Willett for its true value. window of a house opposite, and in view of the win- Thomas was aware from the first of the way in which


the treasure had been found ; and in addition to the In ancient and troubled times treasure of this kind curious nature of the metal-work itself there was evi- may have been a large source of revenue to the Crown. dence against Willett to the effect that he falsely pre- The Queen has a right to it, and the party finding it is tended to have bought it from Thomas for 5s. 6d. only. bound not to deprive the Queen of it. The finder here

The prisoners' counsel, at the trial, contended that was innocent, believing it to be mere brass; but the indictment and inquisition were bad for not aver- Thomas and Willett from the beginning knew how ring that the concealment was fraudulent, and that it was found, and knew it to be gold. there was no evidence to go to the jury against the

WIGHTMAN, J.-I agree generally as to the law with prisoners. The learned Judge reserved both points for the Erle, C.J. But I am not satisfied that Willett knew

of the finding. The offence is the concealment of the Court.

treasure, knowing it to be found. In this case I Denman, Q.C., for the Crown.

cannot see any evidence that Willett knew it to be 1st. It is not necessary that the indictment should treasure trove. contain the word “fraudulent;” nor that it should be the finder only who is charged. The offence is “know

WILLIAMS, J.-I agree with Erle, C.J., both as to ingly, wilfully, and unlawfully" concealing from the the law and as to Willett. In addition to the direct Crown. The case relied on by the defence is

evidence in the case, we have the extraordinary and 3 Inst. 132,

significant nature of the things themselves, which where the offence is described as fraudulosa occultatio, could not escape him. according to Glanvill and Bracton. But “fraudu

The rest of the Court concurred with Erle, Č.J., lently" here only means wilfully, knowingly, and un- and Williams, J. lawfully. This may be collected from the authorities

Conviction affirmed. which refer to the offence. 1 Bl. Com. 295 ;

* Note. — Throughout the argument it was assumed

by both Court and counsel that brass cannot come Glanv. Bk. i. c. 2; Bk. xiv. c. 2;

under the category of treasure trove of Bracton, Bracton, Bk. iii. c. 3, s. 3, p. 119;

iii. c. 3, s. 3. Thesauri inventi fraudulosa occultatio Britton, 26 (2nd ed.);

ut si quis accusatus fuerit, quod thesaurum in. Fleta, 1, c. 43, p. 61 ;

veniret; scilicet aurum vel argentum, vel aliud Mirror, c. 1, s. 13 ; c. 3, s. 28 ; Stat. 4 Edw. 1, c. 2; “De Officio Coronatoris ;

genus metalli. S. 4. Est autem thesaurus quædam

vetus depositio pecuniæ, vel alterius metalli. So Stanford, 39;

Glanvill. xiv. c. 2, "aliquod genus metalli.But, Hawkins, P. C. ii. c. 10, s. 57 ;

Coke Inst. iii. p. 132, “When any gold or silver in Chitty Prerog. Cr. 152. As to the inquisition I have ordered search to be made, coin, plate, or bullion hath been of ancient time hidden,


For if it be of any other metal, it is no and the only precedent I find is an inquisition drawn by Sir Jam

treasure; and if it be no treasure it belongs not to the Scarlett, which is the same as the present, except that he has not inserted even the "


"knowingly, wilfully, &c." See, also,

Note. - As the case of an indictment and inquisition 27 Ass. Plead, 19,

for treasure trove is extremely rare, we append the which shows that the offence is not confined to the form of the indictment and inquisition in the present finder. 2nd. Willett's falsehood is evidence against him of

INDICTMENT. –(Copy.) his guilty mind.

Sussex to wit.— The jurors for our lady the Queen (BRAMWELL, B.-You show from a man's conduct

upon their oath present that heretofore and before the that there is a presumption he has committed an offence. Does that show that he has committed, or is committing of the offence hereinafter mentioned, to wit

on the twelfth day of January, in the year of our Lord conscious of having committed, this offence ?]

one thousand eight hundred and sixty-three, one ERLE, C.J.-The conviction is good. There is no Williain Butchers, a labourer in the employ of one law which says it is essential than an indictment | Thomas Adams, farmer, of the parish of Mountfield, in should contain the word “fraudulent.” Two or three the county of Sussex, while he, the said William authorities use the word fraudulosa. Mr. Denman Butchers, was ploughing in a certain field in the occuhas shown by the mine of authorities he has produced pation of the said Thomas Adams at the parish aforethat occultatio fraudulosa means wilful and unlawful said, in the county aforesaid, did find hidden in and concealment. If, indeed, it had been a statute that under the ground and soil of the said field certain described the offence, an indictment under the statute treasure of gold of the value of five hundred pounds ought to have followed the statutable description, as in and upwards of lawful money of Great Britain, and Regina v. Fitzsimmons, 4 Cox, C. C. 246.

which said treasure was of ancient time hidden as But the case of a statute is different.

aforesaid, and the owner whereof at the time when


the same was so hidden as aforesaid cannot now be said say that on the twelfth day of January, in the kuown, and the jurors aforesaid upon their oath aforesaid year of our Lord one thousand eight hundred and do further present that our lady the Queen, in right of sixty-three, William Butchers, of the said parish of her royal crown, and by virtue of her prerogative Mountfield, labourer, being employed by the said royal, is, and at the time of the said finding was, Thomas Adams in ploughing in the said field, did then entitled to the said treasure so found as aforesaid. and there find deposited, hidden, and concealed in and And the jurors aforesaid upon their oath aforesaid, do under the earth and soil of the said field, in the parish further present that Silas Thomas, of the parish afore- of Mountfield aforesaid, in the rape aforesaid, certain said, in the county aforesaid, labourer, and Stephen pieces of old gold of the weight of eleven pounds or Willett, of the parish of Ore, in the county aforesaid, thereabouts, and of the value of five hundred and thirty labourer, from the said twelfth day of January, in the pounds and upwards sterling of current moneys of this year aforesaid, to the time of taking this inquisition, realm, and which said pieces of old gold were of did unlawfully, wilfully, and knowingly conceal the ancient times deposited, hidden, and concealed as finding of the said treasure from the knowledge of our aforesaid, and the owner or owners whereof cannot now lady the Queen, against the peace of our said lady the be known. And the jurors aforesaid upon their oath Queen, her crown and dignity.

aforesaid, do further say that the said several pieces of

old gold so deposited, hidden, concealed, and found as INQUISITION.-(Copy.)

aforesaid before and at the time, and so finding the Rape of Hastings, Sussex to wit. – An inquisition same as aforesaid, were and from thence hitherto have indented taken for our sovereign lady the Queen at been and still are the gold, money, and property of our the dwelling-house of Richard Thompson, known by said lady the now Queen. And the jurors aforesaid the name of The John's Cross inn, in the parish of upon their oath aforesaid do further say that the said Mountfeld, in the rape of Hastings, in the county of William Butchers and Silas Thomas, of the said parish Sussex, on the twenty-seventh day of March, in the of Mountfield, bricklayer, and Stephen Willett of the Fear of our Lord one thousand eight hundred and town and port of Hastings, cab proprietor, from the sixty-three, before me N K, gentleman coiner for the time of the said finding until and at the time of the said rape, by virtue of my said office, and of the taking of this inquisition at the said parish of Mountstatute in that case made and provided upon the oaths field, in the said rape of Hastings, in the said county of IM, JC, T B, RF, DO, JP, EM, T B, JM, of Sussex, concealed the said finding of the said several RT, JT, G H, and I T, the several persons whose pieces of old gold from the said coroner and from our names are hereunder written and seals affixed, good said lady the Queen, and did not make known the said and lawful men of the said rape, duly chosen and here finding to any person or persons whomsoever lawfully assembled before me at the time and place aforesaid, authorised or empowered to receive the said old gold, and now here duly sworn and charged to inquire on or the information respecting the finding thereof on the part of and for our sovereign lady the Queen of and behalf of our said lady the Queen, and the said jurors concering certain treasure lately found in the earth do further say that the said William Butchers and and soil of and in a certain field situate and being in Silas Thomas are now respectively in full life, and the said parish of Mountfield, and in the occupation of living in the said parish of Mountfield, in the said rape che Thomas Adams, of the said parish of Mountfield, of Hastings aforesaid. farmer. And they the said jurors being duly sworn

In witness whereof as well I the said coroner as the and charged upon their oaths aforesaid to inquire on jurors aforesaid, have to this inquisition set our hands the part of said lady the Queen of and concerning the and seals the day and place first above written. said treasure as aforesaid, and having heard evidence

Nath. P. KELL (L. S.), Coroner, jon oath produced to them, do on their oath afore

and the jury (nominatim).

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Lords Justices.

Whatever might be the construction put upon the will SYKES v. SHEARD. 25 Nov. 1863.

in a suit properly constituted, the question was not

one to be decided in such a suit as the present. Specific Performance - Trust for Sale with Consent Death of one of the Persons to

TURNER, L.J., said, that the plaintiffs' title deConsent.

pended upon the words of a will, upon which one

Judge had already put a construction adverse to them, A testator, after devising real estate to trustecs upon | and it was impossible to say how future Judges might trust to sell and hold the proceeds in trust for his sons interpret such words. It was, therefore, not such a and daughters, declared that no sale should be made title as a purchaser should be compelled to accept. without the consent of his sons and daughters. By a subsequent clause of his will he settled the share of each

Minute. -Appeal dismissed with costs. son and daughter upon him or her and his or her issue, or in default of issue, as he or she should by will

Lords Justices.


25 Nov. 1863. Held, that after the death of one of the testator's daughters without issue, the trustees could not enforce Annuity Act, 53 Geo. 3, c. 141, s. 10– specific performance of an agreement for the sale of the Grantor" — Notice to Solicitor when not testator's real estate with the concurrence of the sur

Notice to Client-Annuity in Reversion. viving children and the appointee of the deccased daughter.

A, by deed, granted to B an annuity of 1391. 178. This was an appeal from a decision of the Master of for five years, and an annuity of 1991. 16s. for ninetythe Rolls (reported 2 N. R. 540) dismissing with costs nine years, from the expiration of the five years; and a bill for specific performance of an agreement for the by the same deed, C, for the accommodation of A, charged sale of real estate, devised by Edward Sykes, on the his land with the annuities, but did not make himself ground that the plaintiffs, the trustees of his will, personally liable. The deed contained a covenant by C, were no longer capable of exercising the trust for sale that his land was free from incumbrances, but the soligiven to them by the will by reason of the death of citor, who prepared the deed on behalf of all parties, one of the testator's daughters, whose consent to a

had himself jointly with others a prior mortgage on C's

land: sale was made requisite by the will.

Held, by KNIGHT Bruce, L.J., that for the purThe will and the facts of the case are sufficiently stated in the former report.

poses of section 10 of the Annuity Act, 53 Geo. 3,

c. 141 ;–1st, C was the grantor of the annuity; 2nd, Southgate, Q.C., and Dickinson, for the appellants. B was not affected with notice of the prior mortgage;

The power of consenting to a sale being given to the 3rd, the annual value of the land must be compared children as a class could be exercised by the survivors, with the annuity of 1991. 163.

Vincent v. Lee, Cro. Eliz. 26, Co. Litt. 113 a ;
Sugden on Powers, 126 (8th ed.);

This was an appeal from a decision of the Master of in

the Rolls (reported, 2 N. R. 569) allowing the claim Danne v. Annas, Dy. 219 ; and

of John Downes against the estate of Francis CartAtwaters v. Birt, Cro. Eliz. 856,

wright, the testator in the cause, in respect of an the power was given to persons named.

annuity, of which no memorial had been enrolled pur. The testator clearly intended the property to be sold, suant to the Annuity Act, 53 Geo. 3, c. 141. and his intention ought not to be defeated by doubtful

The facts of the case are fully stated in the former words,

report. Green v. Green, 2 Jo. & Lat. 529.

Cole, Q.C., and Hetherington, for the appellant (the

plaintiff). Selwyn, Q.C., and T. C. Wright, for the respondent, were not called on.

Thomas Cartwright was not the grantor of the

annuity within section 10 of the Annuity Act. He Knight BRUCE, L.J., said, that, notwithstanding did not join in the grant, as was the case in the case of Vincent v. Lee, he thought the plaintiffs' Darwin v. Lincoln, 5 B. & Ald. 444. title far too doubtful to be forced upon a purchaers. There was no fraud on the part of the solicitor to

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