Two questions arise: 1st. Whether the Justices being shareholders in the North Eastern Railway, had any interest sufficient to make their conviction bad. This alleged interest can only be in relation to costs, for as the Act says nothing about the penalty, it goes not to the Railway Company, but in aid of the county rates. The only interest of the shareholders is in the dividend. [BLACKBURN, J.—If people travel without paying, surely it affects the shareholders' interests. An interest even less than a farthing will disqualify.] The costs were not the object of the inquiry, and are too incidental. The rule as to an interest however small being sufficient, is confined to cases where it is a direct interest. 2nd. There has here been a waiver of the objection. Alexander appealed to the Quarter Sessions; he found out the objection before he went there, and then had the case reheard on the merits. It is too late to object to the jurisdiction when he has run his chance of an acquittal from the Quarter Sessions. [BLACKBURN, J.-But as against one of the Justices there was no waiver.] Macnamara in support of the rule. The conviction is bad, on the ground that the justices were interested. If the Court can see any pecuniary interest whatever, it will not inquire into the amount. The conviction is under 8 Vict. c. 20, the Railway Clauses Act, and by section 3 a Justice is defined to be a Justice who shall not be interested. Regina v. Justices of Hertfordshire, 6 Q. B. 753. As to the waiver, we gave notice of our appeal and the grounds in proper time. After that, when it was too late to alter, we found one of the Justices was interested; and it was not till after the trial of the appeal that we found Mr. Hammond was interested. His LORDSHIP made the Held, that the inquisition should be brought up by certiorari, though the certiorari was taken away by the Act. T. Jones had obtained a rule for a certiorari to bring up an inquisition under the Lands Clauses Act, whereby compensation was awarded to a Mr. Mercer for land of his taken by the defendants, on the ground that the sheriff who summoned the jury was a shareholder in the defendant's company. Littler, (Welsby with him) now showed cause. We did not know till after the inquisition that the sheriff was a shareholder. By the 39th section of 8 & 9 Vict. c. 18, the promoters in case of disputed compensation are to issue their warrant to the sheriff requiring him to summon a jury, “And if such sheriff be interested in the matter of dispute, such application shall be made to the coroner of the county in which the lands in question or some part thereof shall be situate." The objection is merely formal: if the coroner had the same, and the assessor the same. summoned the jury the proceedings would have been sheriff may be a trustee merely, and the Act takes no Besides the cognisance of trusts. [BLACKBURN, J.-The onus lies on you of showing dows of other houses near. T. Jones, in support of the rule, Regina v. Manchester and Leeds Railway Company does not show that the certiorari is a matter of discretion. It is taken away by the Lands Clauses Act, s. 145; but still the Court will interfere if the sheriff had no jurisdiction. All the houses were in the public street, but the place from which the offence was committed could not be seen from any street. The prisoner's counsel objected that the roof of a house was not a public place, and that the exposure was not public. The Assistant Judge reserved the points. Regina v. Cheltenham Commissioners, 1 Q. B. Coram-ERLE, C.J., WIGHTMAN and WILLIAMS, JJ., 467; Hodges on Railways, 421 (3rd ed.) ; Regina v. Sheffield and Manchester Railway Company, 11 Ad. & E. 194; Dimes v. Grand Junction Canal Company, 9 Q. B. 469; Regina v. South Holland Drainage Company, 8 A. & E. 429 ; MARTIN and BRAMWELL, BB. Treasure Trove-Fraudulent Concealment-Inquisition-Indictment-Averment-Evidence -Guilty Knowledge. The offence of concealment of treasure trove (thesauri inventi fraudulosa occultatio) consists in wilfully, knowingly, and unlawfully, concealing the treasure Rex v. Aberdare Canal Company, 19 L. J. Q. B. found, from the Queen, knowing it to be found. 251. : A man standing upon the roof of a house situate in a public street, indecently exposed his person to people standing at the windows of other houses also so situate :Held, that he was guilty of a misdemeanour at Common Law, though the place where the offence was committed was not visible from the street itself. The prisoner was convicted in August last at the Middlesex sessions, under an indictment for a misdemeanour at Common Law. The evidence showed that he had climbed on the roof of a house and indecently exposed his person to several persons standing at the window of a house opposite, and in view of the win Neither the indictment nor the inquisition need aver that the concealment is "fraudulent," where there is an averment that the treasure had been "unlawfully, wilfully, and knowingly" concealed. 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, and knew that it was gold : Held, that the latter were rightly convicted. Held, also (dubitante WIGHTMAN, J.), that it was evidence of the guilty knowledge of one of the two prisoners that he had told a falsehood about the value of the gold after it came into his hands. well, B., on an indictment (accompanied by an inquiThe prisoners were convicted at Lewes, before Bramsition), charging them with "unlawfully, wilfully, and Queen the finding of certain treasure, the property of knowingly" concealing from the knowledge of the the Queen. The treasure in question consisted of curious old gold to the value of 5007., found by a labourer while ploughing in a field, and sold by him under the impression that it was brass to the prisoner Thomas for 5s. 6d. Subsequently, it was disposed of to a jeweller by the prisoners Thomas and Willett for its true value. Thomas was aware from the first of the way in which the treasure had been found; and in addition to the curious nature of the metal-work itself there was evidence against Willett to the effect that he falsely pretended to have bought it from Thomas for 5s. 6d. only. The prisoners' counsel, at the trial, contended that the indictment and inquisition were bad for not averring that the concealment was fraudulent, and that there was no evidence to go to the jury against the prisoners. The learned Judge reserved both points for the Court. Denman, Q. C., for the Crown. 1st. It is not necessary that the indictment should contain the word "fraudulent;" nor that it should be the finder only who is charged. The offence is "knowingly, wilfully, and unlawfully" concealing from the Crown. The case relied on by the defence is 3 Inst. 132, where the offence is described as fraudulosa occultatio, according to Glanvill and Bracton. But "fraudulently" here only means wilfully, knowingly, and unlawfully. This may be collected from the authorities which refer to the offence. 1 Bl. Com. 295; Glanv. Bk. i. c. 2; Bk. xiv. c. 2; In ancient and troubled times treasure of this kind may have been a large source of revenue to the Crown. The Queen has a right to it, and the party finding it is bound not to deprive the Queen of it. The finder here was innocent, believing it to be mere brass; but Thomas and Willett from the beginning knew how it was found, and knew it to be gold. WIGHTMAN, J.-I agree generally as to the law with Erle, C.J. But I am not satisfied that Willett knew of the finding. The offence is the concealment of the treasure, knowing it to be found. In this case I cannot see any evidence that Willett knew it to be treasure trove. WILLIAMS, J.-I agree with Erle, C.J., both as to In addition to the direct the law and as to Willett. evidence in the case, we have the extraordinary and significant nature of the things themselves, which could not escape him. The rest of the Court concurred with Erle, C.J., and Williams, J. Conviction affirmed. *Note.-Throughout the argument it was assumed by both Court and counsel that brass cannot come under the category of treasure trove of Bracton, iii. c. 3, s. 3. Thesauri inventi fraudulosa occultatio ut si quis accusatus fuerit, quod thesaurum inveniret; scilicet aurum vel argentum, vel aliud "De Officio Coronatoris;" genus metalli. S. 4. Est autem thesaurus quædam Mirror, c. 1, s. 13; c. 3, s. 28; Hawkins, P. C. ii. c. 10, s. 57; As to the inquisition I have ordered search to be made, 27 Ass. Plead. 19, vetus depositio pecuniæ, vel alterius metalli. So Glanvill. xiv. c. 2, "aliquod genus metalli." But, Coke Inst. iii. p. 132, "When any gold or silver in coin, plate, or bullion hath been of ancient time hidden, &c. . . . . For if it be of any other metal, it is no treasure; and if it be no treasure it belongs not to the king." Note.-As the case of an indictment and inquisition 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 his guilty mind. [BRAMWELL, B.-You show from a man's conduct that there is a presumption he has committed an offence. Does that show that he has committed, or is conscious of having committed, this offence?] ERLE, C.J.-The conviction is good. There is no law which says it is essential than an indictment should contain the word "fraudulent." Two or three authorities use the word fraudulosa. Mr. Denman has shown by the mine of authorities he has produced that occultatio fraudulosa means wilful and unlawful concealment. If, indeed, it had been a statute that described the offence, an indictment under the statute ought to have followed the statutable description, as in Regina v. Fitzsimmons, 4 Cox, C. C. 246. But the case of a statute is different. case. INDICTMENT.-(Copy.) Sussex to wit.-The jurors for our lady the Queen upon their oath present that heretofore and before the committing of the offence hereinafter mentioned, to wit on the twelfth day of January, in the year of our Lord one thousand eight hundred and sixty-three, one William Butchers, a labourer in the employ of one Thomas Adams, farmer, of the parish of Mountfield, in the county of Sussex, while he, the said William Butchers, was ploughing in a certain field in the occupation of the said Thomas Adams at the parish aforesaid, in the county aforesaid, did find hidden in and under the ground and soil of the said field certain treasure of gold of the value of five hundred pounds and upwards of lawful money of Great Britain, and which said treasure was of ancient time hidden as aforesaid, and the owner whereof at the time when the same was so hidden as aforesaid cannot now be known, and the jurors aforesaid upon their oath aforesaid do further present that our lady the Queen, in right of her royal crown, and by virtue of her prerogative royal, is, and at the time of the said finding was, entitled to the said treasure so found as aforesaid. And the jurors aforesaid upon their oath aforesaid, do further present that Silas Thomas, of the parish aforesaid, in the county aforesaid, labourer, and Stephen Willett, of the parish of Ore, in the county aforesaid, labourer, from the said twelfth day of January, in the year aforesaid, to the time of taking this inquisition, did unlawfully, wilfully, and knowingly conceal the finding of the said treasure from the knowledge of our lady the Queen, against the peace of our said lady the Queen, her crown and dignity. INQUISITION. (Copy.) Rape of Hastings, Sussex to wit. - An inquisition indented taken for our sovereign lady the Queen at the dwelling-house of Richard Thompson, known by the name of The John's Cross inn, in the parish of Mountfield, in the rape of Hastings, in the county of Sussex, on the twenty-seventh day of March, in the year of our Lord one thousand eight hundred and sixty-three, before me N K, gentleman coiner for the said rape, by virtue of my said office, and of the statute in that case made and provided upon the oaths of IM, JC, TB, RF, DO, JP, EM, T B, J M, RT, JT, G H, and IT, the several persons whose names are hereunder written and seals affixed, good and lawful men of the said rape, duly chosen and here assembled before me at the time and place aforesaid, and now here duly sworn and charged to inquire on the part of and for our sovereign lady the Queen of and concerning certain treasure lately found in the earth and soil of and in a certain field situate and being in the said parish of Mountfield, and in the occupation of one Thomas Adams, of the said parish of Mountfield, farmer. And they the said jurors being duly sworn and charged upon their oaths aforesaid to inquire on the part of said lady the Queen of and concerning the said treasure as aforesaid, and having heard evidence pon oath produced to them, do on their oath afore said say that on the twelfth day of January, in the year of our Lord one thousand eight hundred and sixty-three, William Butchers, of the said parish of Mountfield, labourer, being employed by the said Thomas Adams in ploughing in the said field, did then and there find deposited, hidden, and concealed in and under the earth and soil of the said field, in the parish of Mountfield aforesaid, in the rape aforesaid, certain pieces of old gold of the weight of eleven pounds or thereabouts, and of the value of five hundred and thirty pounds and upwards sterling of current moneys of this realm, and which said pieces of old gold were of ancient times deposited, hidden, and concealed as aforesaid, and the owner or owners whereof cannot now be known. And the jurors aforesaid upon their oath aforesaid, do further say that the said several pieces of old gold so deposited, hidden, concealed, and found as aforesaid before and at the time, and so finding the same as aforesaid, were and from thence hitherto have been and still are the gold, money, and property of our said lady the now Queen. And the jurors aforesaid upon their oath aforesaid do further say that the said William Butchers and Silas Thomas, of the said parish of Mountfield, bricklayer, and Stephen Willett of the town and port of Hastings, cab proprietor, from the time of the said finding until and at the time of the taking of this inquisition at the said parish of Mountfield, in the said rape of Hastings, in the said county of Sussex, concealed the said finding of the said several pieces of old gold from the said coroner and from our said lady the Queen, and did not make known the said finding to any person or persons whomsoever lawfully authorised or empowered to receive the said old gold, or the information respecting the finding thereof on behalf of our said lady the Queen, and the said jurors do further say that the said William Butchers and Silas Thomas are now respectively in full life, and living in the said parish of Mountfield, in the said rape of Hastings aforesaid. In witness whereof as well I the said coroner as the jurors aforesaid, have to this inquisition set our hands and seals the day and place first above written. NATH. P. KELL (L. S.), Coroner, H VOL. III. EQUITY. SYKES v. SHEARD. Trust for Sale with Death of one of the Persons to A testator, after devising real estate to trustees upon trust to sell and hold the proceeds in trust for his sons and daughters, declared that no sale should be made without the consent of his sons and daughters. By a subsequent clause of his will he settled the share of each son and daughter upon him or her and his or her issue, or in default of issue, as he or she should by will appoint : Held, that after the death of one of the testator's daughters without issue, the trustees could not enforce specific performance of an agreement for the sale of the testator's real estate with the concurrence of the surviving children and the appointee of the deceased daughter. This was an appeal from a decision of the Master of the Rolls (reported 2 N. R. 540) dismissing with costs a bill for specific performance of an agreement for the sale of real estate, devised by Edward Sykes, on the ground that the plaintiffs, the trustees of his will, were no longer capable of exercising the trust for sale given to them by the will by reason of the death of one of the testator's daughters, whose consent to a sale was made requisite by the will. The will and the facts of the case are sufficiently stated in the former report. Southgate, Q.C., and Dickinson, for the appellants. The power of consenting to a sale being given to the children as a class could be exercised by the survivors, in Vincent v. Lee, Cro. Eliz. 26, Co. Litt. 113a; Sugden on Powers, 126 (8th ed.); Danne v. Annas, Dy. 219; and Atwaters v. Birt, Cro. Eliz. 856, the power was given to persons named. The testator clearly intended the property to be sold, and his intention ought not to be defeated by doubtful words, Green v. Green, 2 Jo. & Lat. 529. Selwyn, Q.C., and T. C. Wright, for the respondent, were not called on. KNIGHT BRUCE, L.J., said, that, notwithstanding the case of Vincent v. Lee, he thought the plaintiffs' title far too doubtful to be forced upon a purchaers. Whatever might be the construction put upon the will in a suit properly constituted, the question was not one to be decided in such a suit as the present. TURNER, L.J., said, that the plaintiffs' title depended upon the words of a will, upon which one Judge had already put a construction adverse to them, and it was impossible to say how future Judges might interpret such words. It was, therefore, not such a title as a purchaser should be compelled to accept. Minute.-Appeal dismissed with costs. Annuity Act, 53 Geo. 3, c. 141, s. 10"Grantor"-Notice to Solicitor when not Notice to Client-Annuity in Reversion. A, by deed, granted to B an annuity of 1397. 178. for five years, and an annuity of 1991. 16s. for ninetynine years, from the expiration of the five years; and by the same deed, C, for the accommodation of A, charged his land with the annuities, but did not make himself personally liable. The deed contained a covenant by C, that his land was free from incumbrances, but the soli citor, who prepared the deed on behalf of all parties, had himself jointly with others a prior mortgage on C's land: Held, by KNIGHT BRUCE, L.J., that for the purposes of section 10 of the Annuity Act, 53 Geo. 3, c. 141;-1st, C was the grantor of the annuity; 2nd, B was not affected with notice of the prior mortgage; 3rd, the annual value of the land must be compared with the annuity of 1997. 16s. This was an appeal from a decision of the Master of the Rolls (reported, 2 N. R. 569) allowing the claim of John Downes against the estate of Francis Cartwright, the testator in the cause, in respect of an annuity, of which no memorial had been enrolled pursuant to the Annuity Act, 53 Geo. 3, c. 141. The facts of the case are fully stated in the former report. Cole, Q.C., and Hetherington, for the appellant (the plaintiff). Thomas Cartwright was not the grantor of the annuity within section 10 of the Annuity Act. He did not join in the grant, as was the case in Darwin v. Lincoln, 5 B. & Ald. 444. There was no fraud on the part of the solicitor to |