Queen v. Pulbrook (7) shew conclusively that a request is good, though not addressed to any one. The King v. Clinch

must be considered as overruled. He referred also to The Queen v. Vivian (8).

Dasent, in reply.-There is a distinction between orders and requests. The latter are less formal instruments; therefore the cases cited in respect of requests do not govern the case of orders.

JERVIS, C.J.-If the cases cited on both sides were conflicting (which I think they are not), I should have been of opinion that we were bound by the more recent decisions on the subject of forged requests for the delivery of goods to hold this a good order for the payment of money. With one exception, the cases of requests and orders must be considered identical. A request is by a person who has no authority to command. An order is obligatory. Had this been addressed to Messrs. Alex. ander, it would in form have been obligatory on them. The question, therefore, is simply, whether the defect of omitting the words "Messrs. Alexander" in the address, prevents this document being an order to pay. All the cases, I think, shew that it does not. The statute provides for the punishment of all persons who shall forge or utter receipts, orders, or requests. All are to be in writing, and the same rules are applicable to all. There is no doubt that the mere signature at the bottom of a bill is a receipt for money, but that of itself is no receipt unless it is explained by evidence of a custom that it purports to mean a receipt. So a request to deliver goods may on the face of it be no request to any one to deliver goods, but the conduct of the party may shew that it is what it is called in the indictment. The same rule would apply, I think, to an order. The cases of The King v. Cullen and The King v. Carney were determined upon the point, that the absence of the address made no difference in the document being a request. The Queen v. Pulbrook decided the same point. It is said that The King v. Clinch clashes with that rule, but I think that it does not. It was necessary at the time of

(7) 9 Car. & P. 37. (8) 1 Car. & K. 719.

that indictment to shew to the jury by evidence, and to the Court on the face of the indictment, that the document came within the statute then in force. But an order addressed to nobody was not a complete order, and in that case it was not stated by apt averments to whom it was addressed, and the omission could not be supplied by proof. Now, however, since the recent alteration in the law, an order may be described in an indictment for forgery as in an indictment for stealing a genuine order. The absence therefore of the averment shewing to whom it is addressed is not now a material defect in an indictment, but the description may be proved by the evidence. Let us then look at this document. It commences with the word "Sirs." What is the meaning of that expression in this instrument? The prisoner tells Messrs. Alexander that they are meant by Mr. Ramsey by the word "Sirs," for she says he directed me to present this cheque to you. It seems to me that it comes within the principle of the cases cited, and being explained, is a good order. There is another distinction between this case and that of The Queen v. Clinch. That was an indictment for forging an order for the delivery of goods. Here the expression "please to pay the bearer" would be compulsory. But in The Queen v. Clinch the phrase "please to send" is a simple request. There was no compulsory or operative words there. The cases, therefore, do not conflict. An order to be good must either on the face of it be addressed to some one or be explainable by evidence to shew that it is so addressed.

POLLOCK, C.B.-I agree with what has been said by the Chief Justice. If the cases were conflicting, I think we ought to be governed by those which have been last decided. But I think they are not conflicting. Trying this as a case to be decided upon principle, it appears to me that this document is an order. The true criterion is, suppose all the facts represented by the prisoner to be true, would it have been an order that released the bankers from any further demand on the part of Ramsey? The circumstances supply the want of a formal direction to the banker. According to the prisoner's account she was told to go to the bank and get the money, and the

clerk said he could not pay her without an order, and she replied that Mr. Ramsey had told her that an order was not necessary, and the next day she comes with this document not addressed to Messrs. Alexander, but simply "Sirs." According to the language of the statute and the plain meaning of the words, I think this was an order within the meaning of the act of parliament.

PARKE, B.-I entirely concur in the reasons given by the Chief Justice and Chief Baron. But I think the instrument an order to pay money without the evidence of its being presented to any particular individual. It is an order to pay, for the expression "Please to pay" is an order to pay. I do not think that an order to pay requires to be addressed by name to any particular person any more than a request. Unless this instrument had been used it might have been difficult to have proved the intention to defraud; but I am not by any means satisfied that the forging it would not have been an indictable offence, assuming a deliberate intention to defraud could be proved, though the party's conduct did not make it clear who the person intended to be called upon to pay was. The terms "Please to deliver goods" do not impart the same authority as the words "Please to pay money." The instrument seems to me an order within the meaning of the statute.

COLERIDGE, J.-I agree with what has fallen from the Chief Justice. I do not think it necessary to express any opinion upon the point suggested by my Brother Parke. This is not a matter now for the first time brought before the Court. We have conclusive authorities on it, by which we are bound. It is not necessary to say whether to perfect an order there must be a party to whom it must be addressed. The cases have decided that the party to whom it is addressed need not be stated on the face of the instrument.

WILLIAMS, J.-In the course of the argument I felt a difficulty in seeing that the conviction was right, and I thought that unless the name of the party addressed was on the face of the instrument it did not amount to an order. I do not agree with the interpretation put on the case of The King v. Clinch by the Chief Justice. I think that there the Judges did lay down,

and meant to lay down, that the order must be directed to the holder or person interested in the order to be within the statute. But The King v. Carney and The Queen v. Pulbrook have decided that a forged request may be within the statute, though the party addressed be not specified in it, Though I doubted at first, yet on consideration, it seems to me that there can be no distinction in this particular between a request and an order, and that the authorities which have been cited must govern our decision.

1853.

Conviction affirmed.

[CROWN CASE RESERVED.]

}

Nov. 12.5

THE QUEEN v. REASON.

Post Office-Person employed underStealing Letter.

If a person, while engaged in gratuitously assisting a post-master, at his request, in sorting the letters, steal one of them, he is liable to the severer penalties imposed by the statute 7 Will. 4. & 1 Vict. c. 36. s. 26, as a person employed under the Post Office.

This CASE was stated by Platt, B..

At the last assizes holden at Cardiff the prisoner, William Reason, was indicted under the 7 Will. 4. & 1 Vict. c. 36. s. 26, for stealing a post-letter containing money. The indictment contained also a count for simple larceny. The jury found him guilty.

From the month of November 1852 until and upon the day of committing the offence the prisoner was employed under the Post Office as a carrier of letters from Cwm Avon to Fayback, in Glamorganshire. The letters were delivered to him in a sealed bag, which it was his duty to deliver as he received it to the postmaster at Fayback, and on such delivery to the Fayback postmaster the performance of the duty of his employment was complete. On the morning of the day on which the offence was committed he brought from Cwm Avon the sealed bag containing letters, and delivered it safely at the Fayback post-office to the Fayback postmaster, whose duty it

* Coram Jervis, C.J., Pollock, C.B., Parke, B., Coleridge, J., Williams, J. and Platt, B,

was to sort the letters in time to make up the bags for the mail passing through that town. The prisoner, on being requested by the Fayback postmaster to assist in the sorting, consented to do so, and while he was proceeding in the assortment contrived to steal one of the letters, that letter containing a shilling.

The prisoner's counsel submitted that, upon these facts, the offence did not fall within the 26th section of the act, as the sorting formed no part of the prisoner's employment under the Post Office, but that the assistance he had consented to render in sorting the letters was merely gratuitous, and rendered to the postmaster for his personal accommodation only.

The counsel for the prosecution contended that the facts brought the offence within the 26th section, as interpreted by the 47th.

Having doubts upon the subject, I postponed the judgment until the next assizes, in order that the prisoner might have the benefit of the question thus raised being considered and decided by Her Majesty's Judges, and of their directing upon which of the two counts the verdict should stand.

66

Giffard, for the prisoner.-The statute 7 Will. 4. & 1 Vict. c. 36. s. 26. enacts that every person employed under the Post Office" who shall steal a letter with money in it shall be liable to transportation for life; and section 47, the interpretation clause, says, "the expression 'persons employed by or under the Post Office,' shall include every person employed in any business of the Post Office according to the interpretation given to officers of the Post Office;" and in a previous part it provides that "the expression 'officer of the Post Office' shall include the Postmaster General and every deputy postmaster, agent, officer, clerk, letter carrier, guard, post-boy, rider, or any other person employed in any business of the Post Office, whether employed by the Postmaster General or by any person under him or on behalf of the Post Office." To bring a person within the penalty of section 26. it is submitted that he must be employed by the Postmaster General or by some person connected with the Post Office who is authorized to employ others under him. If such inferior officer have not such autho

rity to employ others, a third person engaged by him to assist in the post-office business will not be within the true meaning of section 26.

[JERVIS, C.J.-A letter carrier is, by the definition, a person employed under the Post Office.]

Though the prisoner was a letter carrier, he was not engaged as a letter carrier when he stole the letter. The supposed breach of trust in the performance of a regular duty is the ground of the severity of the punishment imposed by the act. But here there was no breach of duty as a servant of the Post Office.

[JERVIS, C.J.-It may be that the generality of the definition was purposely employed to prevent the necessity of proving that the man stole the letter by reason of a breach of trust.]

The fact of his being a letter carrier does not render him more liable than a mere stranger. The case of The Queen v. Glass (1) shews that a merely casual employment is not sufficient to make the employment an employment under the Post Office. There the postmaster of Great Chiverell employed the prisoner to get some postoffice money orders from Westbury.

[COLERIDGE, J.-In that case it was no part of the duty of the postmaster at Great Chiverell to get post-office orders from Westbury.]

The prisoner clearly would not have been liable under the old act-The King v. Pearson (2).

[POLLOCK, C.B.-Suppose, from an extraordinary influx of letters, it becomes reasonable for a postmaster to employ an assistant, is not that assistant liable as a person employed under the Post Office?] It is submitted that he is not.

[COLERIDGE, J.-It is most usual for postmasters to be assisted by their wives or sons, and it never has been doubted that they would come within the definition of being in the employment of the Post Office.]

"Employment" in the statute must mean official employment. Every meddling with the letters cannot render a person liable as a person employed. It might be said that the housemaid whose duty it is to clean the

(1) 2 Car. & K. 395. (2) 4 Car. & P. 572.

letter-boxes is a person employed in the business of the post-office, for the boxes require cleaning as much as the letters sorting. Where is the line to be drawn? [JERVIS, C.J.-Why should any line be drawn?]

Great doubts have been thrown upon the sufficiency of such an employment as this in The Queen v. Milner (3) and The Queen v. Simpson (4).

[PARKE, B.-Suppose a letter-carrier gives a man a letter-bag to hold for a minute, I should be slow to say that that man was not employed in the business of the Post Office. I have no doubt that a person employed by a postmaster to sort letters is an officer employed under the Post Office. The term "employed" in this statute, means engaged or occupied.]

JERVIS, C.J.-I am very glad that this case has been reserved, as the point is one of very general application, and it is important that, after the doubts which were expressed in The Queen v. Simpson and The Queen v. Milner, the question should be set at rest by the decision of this Court. We have no doubt at all that this case comes within the operation of the act, and that the prisoner was a person employed in the business of the Post Office, and that he consequently falls within the express terms of section 26. as a person employed under the Post Office.

not allege that he had them with intent to commit felony, nor need it be proved as a fact on the trial.

The following CASE was stated from the Middlesex Sessions.

Thomas Bailey was tried, at the Middlesex Sessions, on Monday, the 31st of October 1853, upon an indictment under the act 14 & 15 Vict. c. 19. s. 1. This indictment charged that Thomas Bailey, on the 5th of October 1853, about the hour of twelve in the night of the same day, at the parish of St. James's, Westminster, in the county of &c., was found by night, as aforesaid, then and there having in his possession, without lawful excuse, certain implements of housebreaking, to wit, one jemmy and one chisel, against the form, &c. The jury found the prisoner guilty of possession without lawful excuse, and they also found that there was no evidence of an intent to commit a felony. It was contended, on behalf of the prisoner, by his counsel in his address to the jury, that there was no evidence of an intent to commit a felony, and that such evidence was requisite. After verdict, it was further contended that the omission of the words "with intent to commit a felony" was a valid objection in arrest of judgment. Judgment was postponed, and the prisoner was committed to the House of Correction at Clerkenwell to abide the decision of the Court of Appeal. The opinion of the Court of Appeal is requested as to whether the omission of the words "with intent to commit a felony" rendered the indictment bad in arrest of judgment, and whether it was necessary to prove an intent to commit a felony.

No one appeared for the prisoner.

Huddlestone, for the prosecutor.-The conviction is quite right. The statute 14 & 15 Vict. c. 19. c. 1. enacts, "If any person shall be found by night armed with any dangerous or offensive weapon or instrument whatsoever with intent to break or enter into any dwelling-house or other building whatsoever and to commit any felony therein; or if any person shall be found by night having in his possession without lawful excuse (the proof of which excuse shall lie on such person) any picklock, key, crow, jack, bit, or other

implement of housebreaking; or if any person shall be found by night having his face blackened or otherwise disguised, with intent to commit any felony; or if any person shall be found by night in any dwelling-house or other building whatsoever with intent to commit any felony therein, every such offender shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the Court to be imprisoned, with or without hard labour, for any term not exceeding three years." The section contemplates the case of four different offences, in three of which the intent to commit a felony is an essential ingredient; in the other case, which is the present, the intent to commit a felony is not material. Here the possession of housebreaking implements, without lawful excuse, is made an offence, though there be no intent to commit felony.

Perjury-Master Extraordinary in Chancery-Court of Admiralty.

A person cannot be indicted for perjury for false statements in an affidavit in a suit in a Court of Admiralty, sworn before a Master extraordinary in Chancery.

The following CASE was stated by Erle, J. At the York Summer Assizes, 1853, the prisoner was found guilty of perjury in an affidavit used in the Court of Admiralty in a suit for salvage. This affidavit was sworn before a Master extraordinary in Chancery; and upon the objection that this officer had no authority to take an affidavit to be used in the Court of Admiralty, evidence was adduced that the practice of the Court of Admiralty had been to receive

Coram Lord Campbell, C.J., Pollock, C.B., Parke, B., Coleridge, J., Erle, J., Williams, J. and Platt, B.

Cross, for the prisoner.-A Master extraordinary in Chancery has no authority to administer an oath in proceedings in the Court of Admiralty. These officers were first appointed by an order of Sir Christopher Hatton. They have no commission. Their duties are very distinct from those of the ordinary Masters of the Court of Chancery. (He was then stopped by the Court.)

P. Thompson, for the Crown.-It has been the practice of the Admiralty Court from most ancient times to receive affidavits sworn before a Master extraordinary in Chancery. The practice is clear-The Reward.

[COLERIDGE, J.-In that case the present question was assumed.]

Masters extraordinary have, for this purpose, the same powers as the ordinary Masters, and the latter are mentioned in Fleta, and have existed from a very early period of our history.

[LORD CAMPBELL, C.J.-Masters in Chancery existed in the Anglo-Saxon times.]

The Court of Admiralty may be considered as a sort of branch of the Court of Chancery; in fact, as a part of that Court -Statute 31 Hen. 6. c. 4.

[LORD CAMPBELL, C.J.-In ancient times the Lord Chancellor issued letters of marque and reprisals.]

An appeal lay from the Court of Admiralty to the Court of Chancery-Statutes 25 Hen. 8. c. 19. s. 4, 8 Eliz. c. 5. In Blad v. Bamfield (2) Lord Chancellor Nottingham stated that the Court of Chancery has an Admiralty jurisdiction not only per viam appellationis, but per viam evocationis, and that he might send for any cause from the Admiralty Court, and determine it in Chancery. Denew v. Cullen (3) is to the same effect. The Silvan (4) shews that the Court of Admiralty are particular about having their affidavits duly sworn.

(1) 1 Robin. Adm. 174. (2) 3 Swanst. 604.

(3) Finch, Chanc. Rep. 437. (4) 2 Hag. Adm. 155.