personal, freehold or leasehold; it was stated to consist of cottage rents, of which the prisoners wished to get possession.

Prendergast. It must be taken to be a freehold interest; some counts lay the offence with intent to defraud the heir-at-law; bare possession implies a freehold ; the only question at the trial was, about real property; but even supposing it to have been personalty, the two Tuffs would be the persons entitled to the property, and therefore the objection would be just the same whichever way it was.

Rolfe B.-As the jury found there was an intent to defraud a person to them unknown, that would lead to the supposition that they thought there was a prior will.

Prendergast. It was clear that there was no other will; indeed it was admitted so at the trial. The only question is whether, when the man charged with forging, with intent to defraud, is proved to be the only party who could be thereby defrauded, there is any evidence to go to the jury of an intent to defraud? Are the jury entitled to find such an intent where the circumstances negative the possibility of any fraud taking effect? It may be said, that where the natural or necessary effect of the instrument is to defraud, the intention may be presumed, because it is fair to suppose that a man intends the necessary consequences of his own acts; but when no such consequence could result from them, it would seem that even an intent to defraud could not be imputed, so as to warrant a [323] Judge in leaving the question of intent to the jury. In such cases the question will be, what would be the legal operation of the instrument, if genuine? If its existence could do no wrong to any one, except possibly to its author, could he be charged with intent to defraud?

Parke B.-It is conceivable that other persons might be affected by this forged will besides the heir-at-law.

Prendergast. Perhaps so; but can the heir-at-law be said to have done it with intent to defraud, when he clearly could not be benefited by it himself, and might be prejudiced?

As to the first point reserved. None of the cases cited seem exactly in point. Here, the will was clearly entrusted to the attorney in professional confidence. In R. v. Farley, Denison's C. C. 197, it was not so. R. v. Jones, ibid., 166, is in favour of the prisoner; for it seems distinctly to recognise the principle that had the will been entrusted to the attorney in professional confidence, it would have been a privileged communication. In Wilson v. Rastall, 4 T. R. 753, the person to whom the communication had been made neither was nor could be an attorney; because he was at that time acting as undersheriff. R. v. Smith, 1 Phillipps' Evid. 9th ed. p. 171, is directly in point and decisive in favour of the prisoner, supposing it to be law; but in R. v. Avery, 8 C. & P. 596, Mr. Justice Patteson is reported to have held that it was wrongly decided. But this seems questionable. Prendergast here read the following note from Phillipps' Evid. 1, p. 171, "If the case of R. v. Smith, cited before Mr. Justice Patteson in the case of R. v. Avery, had been fully in point against the admission of the evidence offered in R. v. Avery, it could not be considered good law; for unquestionably [324] in R. v. Avery the evidence was admissible. appeared that the prisoner applied to a solicitor to procure for him a loan of money on mortgage, the solicitor being employed by another person to put out money on . mortgage security; in proof of his title to freehold lands, he delivered to the solicitor a will, for the forgery of which he was then to be tried; the solicitor upon this advanced the money of his client and prepared the mortgage deed; the question was, whether the solicitor could produce the will, and give in evidence what had passed between him and the prisoner as to the advance of the money. The distinction between this case and that of R. v. Smith is obvious. In R. v. Avery, the prisoner deposited the instrument in the hands of his solicitor, not with reference to a suit, nor with reference to any transaction resting solely between themselves, but for the purpose of a money transaction between himself and a third person, and to be disclosed and communicated to that person.

It

"In the case of R. v. Smith, on the contrary, the instrument was deposited with the solicitor for the purpose of a suit in which he consulted him professionally, as a matter in confidence between him and his solicitor, and solely for his own interests." R. v. Dixon, 3 Burr. 1687, supports the case of R. v. Smith.

Patteson J.-The two cases were certainly distinguishable; the observations which I am reported to have made about R. v. Smith seem too strong. I should have CR. CA. II.-9*

reserved the case of R. v. Avery, had not the prisoner pleaded guilty to another indictment, and so rendered it needless to press that further.

seems

Parke B.-The expression "for the purpose of enforcing the document ambiguous. Suppose it was delivered to the attorney for the express purpose of shewing that the tenant in possession might give up [325] possession to the forger of the will? Supposing, on the other hand, a man gives his title deeds to an attorney to enable him to bring an action of ejectment, he ought not perhaps to shew them adversely to his client?

Cur. adv. vult.

The Judges were evenly divided on the question, whether, in the absence of evidence of the existence of some person whom the prisoner could have defrauded by a forged will, a count for forging with intent to defraud some person unknown could be supported. It thereby became needless for the purposes of this indictment to give a decision on the first point reserved.

The prisoner was recommended to the Crown for a pardon. (MS. Parke B.)

1848.

REGINA V. CHARLES INDER.

(Prisoner, servant of A. applies to B. for payment of 17s. due from B. to A. B. refuses to pay it without A.'s receipt. Prisoner goes away and returns with this document (see text); whereupon B. pays the debt. Held, a question for the jury, whether the prisoner tendered the receipt as the handwriting of A., which would make him liable on this indictment; or as his own, which would make his act a false pretence.)

[S. C. 2 Car. & Kir. 625.]

The prisoner was tried at the Taunton Spring Assizes, before Mr. Justice Wightman, for uttering a forged receipt for money as stated in some counts, and for uttering a forged acquittance and receipt for money as stated in other counts. The forged

instrument was as follows:

Received from

Mr. Bendon, due to
Mr. Warman, 17s. Od.
Settelled.

The prisoner was servant to Mr. Warman, and applied to Bendon's wife for payment of a debt of 17s., due to Warman. She refused unless she had War-[326]-man's receipt, and the prisoner went away and returned with the above document, upon which she paid the money. The learned Judge requested the opinion of the Judges on the following question. Is this document a receipt or acquittance within the statute?

This case was considered by Lord Denman, Wilde C. J., Parke B., Patteson J., Coltman J., Rolfe B., Wightman J., Cresswell J., Erle J., Platt B., Williams J.

(MS. Parke B.) Six of the Judges (Lord Denman, Wilde C. J., Cresswell J., Erle J., Platt B., Williams J.) thought the conviction good, as the receipt sufficiently appeared to be that of Warman, especially considering the conduct of the prisoner in producing it as such; and if so it was a forgery. The other five Judges (Parke B., Patteson J., Coltman J., Rolfe B., Wightman J.) thought it did not purport to be the receipt of Warman, and, therefore, was no forgery; inasmuch, as if it was taken to be the receipt of the prisoner it was no forgery; and that the offence of the prisoner was the obtaining money under false pretences. (a)

(a) It must be assumed, though not so stated in the case, that the receipt was proved not to be in the handwriting of Warman. And then the question reserved (though not in express terms) seems to have been this. Was there any evidence for the jury that this was a forged receipt or acquittance? in other words, was there any evidence that the document was offered by the prisoner as the handwriting of Warman and not as his own? (Vide R. v. White, supra, p. 208.) The majority of Judges seem to have thought that this did not depend on the mere tenor of the receipt itself, but on the whole circumstances of the transaction of which this instrument formed a part. The minority seem to have thought either that the question of forgery or no forgery must be determined solely by the tenor of the instrument itself (which was ambiguous), or that the other circumstances of the case supplied no evidence one way or the other.

[327] The following cases were determined by the Judges who composed the new Court for the hearing of Crown Cases Reserved, created by stat. 11 & 12 Vict. c. 78, entitled, An Act for the further Amendment of the Administration of the Criminal Law."

66

[329] SUMMER ASSIZES, 1848.

REGINA v. ELIZABETH GARNER.

(Confession made by a girl aged 13, after being told by a medical man in the presence of prisoner's mistress and her husband, that it would be better for her to speak the truth. Held, 1. Inadmissible. 2. That although the confession was rightly admitted by the Judge in the first instance and taken down by him as evidence, it should be struck out of his notes after proof by the prisoner that it had been made under the above inducement. 3. Per Erle J. It is a question for the Judge in every case, whether the alleged words of inducement were actually such as to induce the prisoner to make a confession of guilt, whether true or not.) [S. C. 2 Car. & Kir. 920; T. & M. 7; 3 New Sess. Cas. 329; 18 L. J. M. C. 1; 12 L. T. O. S. 155; 12 J. P. 758; 12 Jur. 944; 3 Cox C. C. 175. Referred to, R. v. Baldry, 1852, 5 Cox C. C. 523; R. v. Moore, 1852, post, vol. ii. p. 522; R. v. Widdop, 1872, 21 W. R. 176.]

The prisoner, a girl of the age of thirteen, was tried before Mr. Justice Patteson, at the Lincoln Summer Assizes, A.D. 1848, for administering poison to her mistress, Mary Smith, with intent to murder her.

It was proved that the prisoner had given her mistress, who was bedridden, some milk, in which a quantity of fag water had been mixed. Fag water is a mixture of arsenic, soft soap, and water, used for dressing sheep.

But in order to prove that the prisoner had put the fag water into the milk; that she knew the nature of it, and intended to murder her mistress, her own confession to Mr. Gilby, a medical man who attended her, made in the presence of prisoner's mistress and her husband, was offered in evidence. Mr. Gilby, on being questioned, swore that he did not tell the prisoner that it would be better or worse for her to tell; that he used no threats or promises, nor did any one else; and it appeared before Mr. Gilby's arrival that the prisoner had not made any confession, nor had any threats or promises been held out to her.

:

The learned Judge admitted Mr. Gilby's statement, which was as follows: "I asked her if she had given the woman anything in her milk; she said she had mixed fag water with the milk; she had put in half a teacup full. I asked [330] her if she was aware of the nature of it; she said she knew it was poison; she thought it would kill the woman; that she had done it to be released from her service."

A woman of the name of Brampton was then called, who was also present at the conversation, and she swore that Mr. Gilby told the prisoner, in the presence of the mistress and her husband, that it would be better for her to speak the truth. She could not tell whether he told her so before he asked her what she had done; but it was before she answered.

The learned Judge then recalled Mr. Gilby, and in answer to a question put by the learned Judge, he said," I could not positively swear that I did not tell the prisoner that it would be better for her to tell the truth; I don't recollect that I did; I can't say positively what was the first thing I said to her. I believe I asked her what she had put into the milk. It is very likely I might tell her it would be better for her to tell the truth; Smith and his wife, the mistress, were both present, and heard what I said."

Smith, who had been examined as a witness, could not recollect what was said. The counsel for the prisoner contended, that the confession ought to be struck out of the learned Judge's notes, and not be submitted to the jury.

The following cases were cited; 7 C. & P. 776, Spencer's case; 8 C. & P. 733, Sarah Taylor's case; 2 Car. & Kir. 225, R. v. Laugher.

After consulting with Lord Denman, the learned Judge declined to strike out the evidence of the confession, and put the whole to the jury, feeling that it was impossible after they had heard the confession, to expect that they could weigh and consider the other facts in the case without reference to the con-[331]-fession; and, in truth, those other facts by themselves would not have warranted a conviction.

The deposition of the mistress, which had been taken by a magistrate in the presence of the prisoner, and which mistress was proved to be incapable of being removed, and to be in a hopeless state under a disease of dropsy, was then read, detailing the same conversation between Mr. Gilby and the prisoner, but not stating anything with regard to the use of threats or promises.

The jury found the prisoner guilty. The learned Judge requested the opinion

of the Judges, whether he was right in the course he had adopted.

This case was argued 11th November, 1848, before Pollock C. B., Patteson J., Maule J., Cresswell J., Erle J., at the first sitting of the Court created by stat. 11 & 12 Vict. c. 78.

Flowers for the prisoner. There are two questions for the Court.

First. Did the words used by the medical man convey such an inducement as would prevent the confession from being voluntary ?

Maule J.-They have been held to be so over and over again.

Erle J.-I think, in every case, it is for the Judge to decide whether the words were used in such a manner, and under such circumstances, as to induce the prisoner to make a confession of guilt, whether such confession were true or no.

Patteson J.-I think, if it had appeared in the first instance that the medical man had used the words, "it would be better for her to speak the truth," I should have excluded the evidence of a confession. The only question is, whether, when that evidence had been properly admitted, which was the case here, I ought to have struck it out of my notes, after proof that the [332] confession was not voluntary. The prisoner was certainly bound to shew that it was not so; but that being proved by the witness Brampton, I think that I should have treated the evidence of a confession as though it had been inadmissible in the first instance.

Pollock C. B.-We are all of opinion that the conviction cannot be sustained.(a)

1848.

REGINA v. ORLANDO MASTERS.

(Money was received on account of his master by one clerk and by him handed over in due course of business to another clerk (the prisoner) to be delivered to the master. The prisoner fraudulently appropriated it. Held, not larceny, but embezzlement.)

[S. C. 2 Car. & Kir. 930; T. & M. 1; 3 New Sess. Cas. 326; 18 L. J. M. C. 2; 12 L. T. O. S. 154; 12 J. P. 758; 12 Jur. 942; 3 Cox C. C. 178. Considered, R. v. Raycroft, 1849, 13 J. P. 183. Distinguished, R. v. Watts, 1850, post, vol. ii. p. 14. Referred to, R. v. Martin, 1849, 13 Jur. 368; R. v. Hawkins, 1850, post, p. 584.] M. D. Hill, Q. C. The Recorder of Birmingham submitted for the consideration of the learned Judges the two following questions:

First. Whether, under the 11th and 12th Vict. chap. 78, sec. 1 and 2, questions of law may be reserved by Recorders?

Secondly. Whether the conviction of Orlando Masters was a good conviction? As to the first question. The power to reserve is not in express terms given to Recorders, and it may be contended that the Courts of Quarter Sessions mentioned in the Act are Courts composed of Justices of the Peace. On the other hand, it may be replied, that the first section, when enumerating the Courts to which the power is given, uses the word "any," which [333] would seem to override the whole class enumerated, and, consequently, to apply to Courts of Quarter Sessions; and that the second section enacts, that the Court of Quarter Sessions shall state the

(a) In R. v. Taylor, 8 C. & P. 733 (1839), Patteson J., on referring to R. v. Spencer, 7 C. & P. 766 (1837), where Parke B. had said, that there was a difference of opinion among the Judges whether a confession made to a person who has no authority, after an inducement held out by that person is receivable, said-" It is the opinion of the Judges that evidence of any confession is receivable, unless there has been some inducement held out by some person in authority"; and he held, the prisoner's mistress to be a person in authority. In R. v. Laugher, 2 C. & K. 225, a confession made to that other person, in the presence of a constable, after an inducement held out by that other person, was considered by Pollock C. B., to be inadmissible, as it was virtually the same as though the inducement had been held out by the constable himself.

case. In boroughs, this Court consists of the Recorder sitting as the sole Judge, 5 & 6 Wm. IV. c. 76, s. 105; he is, moreover, ex officio, a Justice of the Peace, s. 103.

It would thus appear that borough sessions are within the words of the Act, and the absence of any express distinction between county sessions and borough sessions might be urged to shew that no such distinction was intended. Indeed it would be difficult, if not impossible, to find any motive for withholding a power from Recorder's Courts which is thought necessary to the due administration of justice in Courts exercising a similar jurisdiction.

As to the second question, the case is as follows:

Orlando Masters, a clerk in the employment of William Holliday, was tried at the Michaelmas Quarter Sessions, A.D. 1848, for the borough of Birmingham, on an indictment charging him with embezzling three sums of money received by him. for and on account of his master, the prosecutor.

It appeared in evidence, that the course of business adopted by the house was for the customers to pay monies into the hands of certain persons, who paid them over to a superintendent; he accounted with the prisoner, and paid over such monies to him, and the prisoner, in his turn, accounted with cashiers, and paid over the monies to them, he having no other duty to perform with respect to such monies than to keep an account which might act as a check on the superintendent and the cashiers, their accounts being in like manner checks upon him. These four parties to the receipt of the monies are all servants of the prosecutor.

[334] With respect to the three sums in question, it was proved that they passed in due course from the customers through the hands of the immediate receivers and the superintendent to the prisoner, who wilfully and fraudulently retained them.

On behalf of the prisoner it was objected, on the authority of Rex v. Murray, 1 Moody's C. C. 276, that the monies having, before they reached the prisoner, been in the possession of the prosecutor's servants, did in law pass to the prisoner from his master, and that consequently the charge of embezzlement could not be sustained.

For the Crown it was answered, that the prisoner having intercepted the monies. in their appointed course of progress to the master, this case was not governed by that of Rex v. Murray, where the prior possession of the master having been as complete as it was intended to be, the money might reasonably be considered as passing from the master to the prisoner, whereas, in the present case it was in course of passage through the prisoner to the master.

The Recorder left the case to the jury, reserving the point.

The prisoner was convicted and sentenced to twelve months' imprisonment,

with hard labour.

This case was argued before Pollock C. B., Patteson J., Maule J., Cresswell J., Erle J., on the 11th of November, 1848, at the first sitting of the Court created by stat. 11 & 12 Vict. c. 78.

Miller for the prisoner.

Pollock C. B.-The Court does not require any argument on the first question reserved.

Patteson J.-The jurisdiction is as plain as possible. A Recorder is a justice of the peace, virtute officii.

Miller. As to the second point, it seems clear that there was no tortious taking by the prisoner: his [335] taking was lawful in the first instance. His duty was to receive the money and pass it on to his master.

Pollock C. B.-The Court are unanimously of opinion that no further argument is necessary. This case is quite different from that of R. v. Murray, 1 Moo. C. C. 276. There the case was not within the stat. 7 & 8' Geo. IV. c. 29, s. 47, because the master had had possession of the money by the hands of another servant; and when it was given to the prisoner by that servant to be paid away on account of the master, it must be deemed in law to have been so given to the prisoner by his master: the fraudulent appropriation of it being thus a tortious taking in the first instance, was not embezzlement but larceny. But here the money never reached the master at all it was stopped by the prisoner on its way to him. The original taking was lawful, and, therefore, the fraudulent appropriation was embezzlement.