1826. The KING v. struction must be given to both. But I think the additional clause pointed out by my brother Bayley, in 38 Geo. 3, is quite decisive to shew that the legislature INHABITANTS meant to exempt the lands used by the Company from any additional rateability in consequence of the profit derived from the tolls. The of ST. PETER. The GREAT. LITTLEDALE, J., concurred. Order of Sessions confirmed (a). (a) The like decision took place in another case reserved by the sessions, upon a rate made upon the Company, "for lands for wharfs, basin, warehouses, engine-house, lock-house, gardens, and premises, and for tolls and profits arising therefrom," for the relief of the poor of the same parish, in the County of Worcester. In this assessment the Company had been rated at the sum of 117. 4s. 5d., which the sessions reduced to the sum of 14s. Old. The KING v. The Rev. JOHN COMMINS. Evidence THIS was a rule calling upon the defendant, a in support of an information before a magistrate under the justice of the peace, to shew cause why a criminal information should not be filed against him, for illegally and corruptly convicting one William Crudge, in a penalty of Game Laws, 207., upon an information laid against him under the cannot be re ceived in the absence of the defendant, at least, where he has not been personally sum moned to ap Game Laws. The affidavits upon which the rule was obtained, stated, that the prosecutor had not been duly summoned to appear before the defendant, to answer the information laid against him, inasmuch as no summons for that purpose had been personally served upon him; that the defendant, nevertheless, proceeded to examine witnesses in support of the information, in the absence of the prosecutor; that an attorney, employed by the prolaw entitled to secutor, attended on his behalf at the hearing of the be present, pear to the information. Quare, whether, in such case, an attorney is by and to act for the defendant, before the magistrate. information, but was prevented by the defendant from cross-examining the witnesses called in support of the information; and that the defendant, after hearing the witnesses, convicted the prosecutor in a penalty of 201., at the same time declaring, that if an attorney had not attended on his behalf, he should have fined him only 101., instead of 201. The affidavits in answer to the rule, admitted that the summons to appear before the defendant was not personally served upon the prosecutor, but stated facts from which it was clear, that the prosecutor knew that such a summons had issued. They also admitted, that the witnesses had been examined in the absence of the prosecutor, and that his attorney had been prevented cross-examining them; but they stated, that the former was a common and ordinary course on such occasions, and that the cross examination so prevented, was upon an immaterial and irrelevant matter. They also admitted the declaration with respect to the amount of the fine, but denied that the defendant had any malicious or corrupt motive against the prosecutor in the transaction. Copley, A. G., and Coleridge, were heard in shewing cause against, and Scarlett, and Chitty in support of, the rule. ABBOTT, C. J.-Looking at the affidavits on both sides, they do not appear to me to furnish such evidence of malicious or corrupt motives on the part of the defendant, or of actual injustice worked to the prosecutor, as to call upon us to make this rule absolute; but there does appear to have been so much impropriety in the defendant's conduct, that the prosecutor might fairly be induced to think that he had good grounds for making this application; and therefore, though the rule must 1826. The KING v. COMMINS. 1826. The KING v. COMMINS. be discharged, I think it must be upon payment of the costs by the defendant. It is admitted that the summons was not personally served, which is clearly irregular; for we have recently decided, that the record of a conviction by default, upon the 5 Ann. c. 14, must shew that the defendant has been personally summoned to appear to the information (a). It seems clear, however, that the prosecutor knew of the summons having been taken out against him; and therefore, though he was not personally served with it, he has not sustained any injury, for he might have appeared if he had thought proper. Whether the defendant was or was not bound, in point of law to permit the prosecutor's attor ney to be present, and to act for him, I will not upon the present occasion pretend to decide; it is a very important question, and whenever it is regularly brought before me, I shall give it that grave consideration which it deserves (b); but having permitted him to be present, and to act, the defendant was wrong in interrupting him, even though the interruption might be immaterial. In making the declaration which it is admitted he made, respecting the amount of the fine, the defendant acted, to say the least, very indiscreetly and unadvisedly, and I much disapprove of his conduct in that respect. Upon the whole, though I consider the defendant's conduct to have been extremely improper, still, as I do not see sufficient proof of malice or corruption, I think the justice of the case will be satisfied by discharging the rule, upon payment of the costs by the defendant. BAYLEY, J.-I am of the same opinion. I will (a) Rex v. Hall, ante, vol. iii., 19. See Paley on Convictions, 2d edit. by Dowling, 133, et seq. (b) Cor v. Coleridge. Ante, vol. i., 142. 1 B. & C. 37. Paley on Convictions, 2d edit. by Dowling, 27, n. (1). 1826. บ. COMMINS. merely add, that there seems to be a general, but erroneous, practice among justices of the peace, of taking The KING evidence in cases like the present, in the absence of the party accused; as was done in the present case. It is a highly irregular and improper course, and it must be corrected. ABBOTT, C. J.-I had intended to make the same remark. It is quite necessary that such an irregularity should be altered. It is a most improper practice, and I trust it will be abandoned for the future. The other Judges concurred. Rule discharged, upon payment of costs The KING V. THOMAS FLOWER. INDICTMENT for embezzlement, under the statute 39 Geo. 3, c. 85, stated, that the prisoner, being the servant of the prosecutor, on, &c., did, by virtue of his employment as such servant, receive and take into his possession, for and on account of the prosecutor, divers sums of money, amounting in the whole to a large sum of money, to wit, the sum of 10l., and afterwards embezzled it. At the Wiltshire Lent assizes, 1825, the prisoner pleaded guilty to this indictment, and was adjudged to be transported beyond seas for the term of seven years; upon that judgment a writ of error was brought. master, divers sums of money, amounting in the whole to a large sum of money, to wit, the sum of 10l., and embezzled the same," and was adjudged to be transported : Held, that the indictment was bad; and the Court reversed the judgment, and refused to remand the prisoner. 1826. REX V. FLOWER. Chitty, for the prisoner, was stopped by the Court, who desired to hear R. Bayly, contrà. This indictment is maintainable; and Rer v. Johnson (a) is an authority in point. It was there held, that in an indictment upon this very statute, 39 Geo. 3, c. 86, for embezzling bank notes, it was a sufficient description of the notes to say, divers, to wit, nine bank notes, for the payment of divers sums of money, amounting in the whole to a certain sum of money, to wit, the sum of 97., and of the value of 91. [Bayley, J. That was because the word bank note, being mentioned in the act of parliament, was held to be a sufficient description of the species of property charged to be embezzled]. But the word money is also mentioned in the act of parliament; and it has been held, that in an indictment for embezzling money, it is not necessary to set out the precise sum charged to be embezzled, Rer v. Carson (b). [Bayley, J. This indictment does not state to whom the money charged to have been embezzled belonged, and is clearly bad in that respect, upon the authority of Rex v. M'Gregor (c)]. But even if the indictment is held insufficient, still as the prisoner has pleaded guilty, and ought not to escape with impunity, this Court will not discharge him, but will remand him back to the inferior Court, in order that a sufficient indictment may be prepared, and the ends of justice saved from being thus defeated. ABBOTT, C. J.-The case of Rex v. Furneaux (d), is quite decisive of the present. There the indictment charged that the prisoner, being a servant, &c., received the sum of one pound eleven shillings, for and on account (a) 3 M. & S. 539. (b) Russ. & Ry. Cr. Ca. 303. (c) 3 B. & P. 106. |