1805. The KING against the threat must have been known by the party to be nugatory, by reason of the stat. 43 Geo. 3, c. 73, s. 4, having placed all prosecutions for offences against the medicine stamp Jaw under the control of the Attorney-General and SOUTHERTON. the commissioners of stamps; as it is clear that any attempt by sinister means to prevent those officers from prosecuting for such an offence would be a misdemeanor, it follows by the rule first mentioned, that to solicit a reward for preventing them must also be an offence, because it is a step in progress towards the other misdemeanor. It matters not whe ther he had the means of prevention or not; though it is ob vious that the effect might be produced by withholding in [139] formation himself, or persuading others to withhold it. It is a threat to put the public process in motion by a public of ficer, if the party will not purchase silence; and, therefore, though legally and strictly speaking, it may not be an attempt to extort money, because the defendant himself was no public officer; yet, it was so in substance and effect, because it was to be done by colour of a prosecution instituted by one who was such. In Serlested's case (a), who was indicted for cheating, the indictment charged that one P. being a soldier under H. his captain, the defendant pretending that he bad power to discharge soldiers, took so much from P. for his discharge, &c. and one of the exceptions. taken was, that it appeared by the statute, That no one but the captain or general could have such a power; and, therefore, the pretence was impossible. But the Court said, That that constituted the deceit. [Lord Ellenborough. The reasoning in that case seems to prove too much; for it goes the length of shewing, That obtaining money under a threat of any thing, however improbable, would be indictable at common law.] So in R. Tunmer (b), error was brought to reverse a judgment on an indictment against an informer for compounding an information preferred by him against a recusant before the Quarter Sessions; and the error assigned was, That the Sessions had no jurisdiction to inquire of recusancy; but the Court said, That it would not lessen the offence if it had been so; but they thought the Sessions had jurisdiction. Burrough, contra, was stopped by the Court. (4) Latch, 202. (b) 1 Sid. zike and 1⁄2 Keb. 196. H4 Lard 1805. The KING against SOUTHERTON. Lord ELLENBOROUGH, C. J. To obtain money under a threat of any kind, or to attempt to do it, is no doubt an immoral action; but to make it indictable, the threat must be of such a nature as is calculated to overcome a firm and prudent man. Now the threat used by the defendant, at its utmost extent, was no more than that he would charge the party with penalties for selling medicines without a stamp. That is not such a threat as a firm and prudent man might not and ought not to have resisted. I do not say that if the last count had concluded against the statute, it would not have brought the case within the stat. 18 Eliz. and the defendant have been exposed to an ignominious punishment. Had the indictment been so framed, it might have been sustained; but it is laid as an offence at common law. The other counts state no more than an attempt by the defendant to charge the several parties with a statutable offence, for which, if guilty, they would have been liable to certain penalties. Then, What authority is there for considering these as offences at common law? The principal case relied on is, That of The Queen v. Woodward and Others, which was, where the defendants, having another man in their actual custody at the time, threatened to carry him to gaol upon a charge of perjury, and obtained money from him under that threat, in order to permit his release. Was not that an actual duress, such as would have avoided a bond given under the same circumstances? But that is very unlike the present case, which is that of a mere threat to put process in a penal action in force against the party. The law distinguishes between threats of actual violence against the person, or such other threats as a man of common firm ness cannot stand against, and other sorts of threats.[141] Money obtained in the former cases under the influence of such threats, may amount to robbery; but not so in cases of threats of other kinds. In the case in Latch there were circumstances of deception; though it does not exactly appear by what means the imposition was practised. It might have been a case of cozenage and deceit. Such was the case of Mackarty and Fordenbourgh considered. The wine there given in exchange, was an unwholesome commodity, not fit for man to drink. But this is a case of threatening, and not of deceit and it must be a threat of such a kind as : 1805. will sustain an indictment at common law; according to one case, either attended with duress; or according to others, such as may overcome the ordinary free-will of a firm man, and induce him from fear to part with his money. The SOUTHERTON. present case is nothing like any of those; it is a mere threat to bring an action which a man of ordinary firmness might have resisted. GROSE, J. The case of The Queen v. Woodward and Others, was the only one cited that weighed on my mind; and I have had some difficulty to distinguish it from the present in principle. But what has been said of it by my lord does, I think, sufficiently distinguish it. This is a mere threat of procuring a penal action to be brought against the party without any circumstance of duress accompanying it; and therefore this is not an indictment for an attempt to commit a misdemeanor; for it does not appear to us on this record that any misdemeanor was intended. LAWRENCE, J. The question is, Whether the offence of which the defendant has been convicted, be cognizable by the laws of this country? It was argued to be an offence, by insisting that this was an attempt by the defendant to intercept the penalty incurred under the act of parliament from coming into the public purse: but, in order to shew that, it must have appeared that the Allens, &c. were guilty; and if that had been shewn, I do not say that this would not have been an indictable offence :-for I agree that there is no dif, ference in the respect contended for between an attempt to commit an offence at common law, and one which is created by statute. They must both be governed by the same considerations. But I think that the indictment is defective in not shewing that the defendant attempted to commit a misdemeanor. This applies as well to the 15th count, which charges the facts therein stated as a common law offence ; for it is not laid to be against the statute. If it had been so laid, it would then have appeared to be an attempt to commit a misdemeanor. The question then is, Whether it be an offence at common law to threaten another that he will procure a public officer to prosecute him, unless he give him money? It has been decided in many cases, that even where money has been fraudulently obtained, yet it is not indictable; as The KING against [ 142 ] 1805. The KING against SOOTHERTON. : as in R. v. James (a), where the defendant obtained money of another by pretending that he was sent by a third person for it. One of the Judges in that case said, That one man cannot be indicted because another has been a fool. The case of The Queen v. Hannon (b), is to the same purpose. It is otherwise where money is obtained by such means 89 common prudence and firmness cannot guard against. The same distinction was adopted by the old law with respect to such as were deterred by threats from making entries into lands [143] which they claimed. The threats must be such as will deter virum fortem et constantem, from entering on the land, in order to render it sufficient for him to go as near to it as he safely may for the purpose of asserting his claim. But there must be a fear of personal violence. Co. Litt. 253, b. And it is there said, "That it seemeth that fear of imprisonment is also sufficient, for such a fear sufficeth to avoid a bond or a deed." And that shews the ground of the decision in The Queen v. Woodward and Others: that was not a case of mere threat, but the man was an actual duress at the time, and was threatened to be taken to Newgute; and one can not say that that might not be such a threat as a man of ordinary firmness could not resist (c). But here, when the defendant threatened to prosecute the party for the penalties, a man of ordinary firmness might have well said to him that he was not guilty of the offence charged; and, therefore, he might prosecute him at his peril if he pleased (d). Judgment arrested. Lord ELLENBOROUGH, C. J. then said, That enough ap peared to the Court to satisfy them that the defendant was a very improper person to remain as an attorney on the Rolls of the Court. Therefore, he desired the Master to inquire and report, Whether the defendant were still upon the Roll of Attornies of this Court? And the Master having certi fied to the Court in the affirmative, on a subsequent day, a rule was made on the defendant to shew cause why he should not be struck off; which the defendant yielded to; and his name was accordingly struck off the Roll, his counsel admitting that he could not resist it. (a) 1 Salk. 379 (b) 6 Mod. 311. (c) Fide Rex. v. Wood and Knewland, 2 East's P. C. 732. Mose 1805. Moss and Another, Assignees of KIRKPATRICK, a Tuesday, BOON. of the transfer of a ship in the same port made upon the certificate of a registry, and bearing date at the time of the transfer, but not signed by the vendor till after such certi ficate had been delivered upand cancelled, and dormant during held IN trover, to recover the value of the ship "Samaritan's Anindorsement Hope," which was tried at Lancaster Summer Assizes, 1803, a verdict was found for the plaintiffs for 17501. subject to the opinion of the Court, upon the following case ;Twemlow and M'Dowal, residing in Liverpool, and owners of the ship in question, then belonging to and lying in the port of Liverpool, by bill of sale dated the 6th of July, 1799, assigned her for a valuable consideration to Kirkpatrick, then also resident in Liverpool. In which bill of sale, a certificate of registry de nova of the ship, in the names of Twemlow and M'Dowal, at the port of Liverpool, was duly had remained recited. The said recited certificate is No. 135, dated Li- all the intermeverpool, 17th (a) of July, 1799, and has the following mediate time; morandum written upon it: viz. "The former register title to the ship granted at Scarborough, No. 13, dated 3d of April, * 1793, ster act 34 Geo. having been taken away by the enemy, this vessel is permit. 3, c. 68, s. 15, ted to be registered de novo, by order from the commissioners such certificate of his Majesty's customs, No. 379, dated 4th July, 1799." having been so The following indorsement also appears upon the said certi- livered up upon ficate: "Liverpool. Be it remembered, that we T. Tuemlow vendee'sobtainand S. McDowal, both of Liverpool, &c. merchants, have ing a register de novo (issued this day sold and transferred all our right, share, or interest in and to the ship, The Samaritan's Hope, mentioned in the within certificate of registry, unto J. Kirkpatrick of Liverpool aforesaid, merchant. Witness our hands this 29th day not to convey a under the regi and other acis ; cancelledandde occasion of the without authority) which recellation of the cised the can former certificare. For the object of the re gister acts in requiring such indorsement, is in order to notify the change of property to the public; and, therefore, it is required to be made on an existing acknowledged certificate in use at the time: and, consequently, no title passed to the assignees of the vendee who had be come bankrupt hetween the time of the original transfer to him and the signing of such indorsement by the vendor; the vendee having also before his bankruptcy conveyed away the ship to third persons for a valuable consideration, who were in possession of it; but quære, Whether any title could be made under such register de novo, issued without authority upon a transfer of the ship in the same port? and, therefore, the venders of the bankrupt only held their possession on such defect of title in the assignees of the bankrupt. (a) Le Blanc, J. observed the incongruity of this date; the instrument recited being of a date posterior to the instrument reciting it: but it was answered that such was the fact. * [ 145 ] of |