which the prisoner stated that he had a contract to make malt for Hoares', a large brewery, which was worth 2,000l. a year at least. He also stated that he had a malting at the Hythe, Colchester. He also made representations as to the extent of his dealings in porter, and said that the profits of the business were 2,000l. a year. The plaintiff was induced by this account to enter into an agreement of partnership with the prisoner in February 1857, and to advance 500l. The profits were to be equally divided. He paid the 500l. to Watson, and remained and acted as partner until the middle of May. In that month he wrote to a third person, stating that he had entered into partnership with the prisoner, and offering to dispose of his share in the business for 8001. Subsequently, in the course of the same month, he discovered that Watson had deceived him; that he had no order to make malt for Hoares', and no malting at the Hythe or anywhere else, and that his representations as to the extent of his porter business were enormously exaggerated; in fact, that the business of the prisoner was extremely small, and the prisoner admitted that he had duped the prosecutor and asked his forgiveness.

The indictment was so framed as to set out in various counts the various false pretences made use of by the prisoner. The chairman, in substance, directed the jury that if they believed the evidence they would find the prisoner guilty.

Bulwer, for the prisoner. The only direction given by the chairman to the jury was, that if they believed the evidence they would find the prisoner guilty on the three counts. This is wrong. This is not a case within the statute. Here, there is no obtaining any money by a false pretence. The money advanced was advanced as part of the partnership funds. It was not obtained by a sham pretence of a partnership for which there was no foundation; but there was a real partnership entered into, although it is true that the prisoner obtained the assent of the prosecutor to become his partner by a false representation and exaggeration as to the state of the business.

[COCKBURN, C.J.-The false representations are set out in separate counts as so many separate false pretences. It is probable that the prosecutor was induced to

give him money on all the representations collectively, and not on any singly.]

That is another ground for saying the conviction is improper. But the great objection to it is, that it is clear that for several months the prosecutor acted as a partner with the prisoner, and even wrote letters to a third person, stating himself to be a partner and offering to sell his interest. No counsel appeared for the Crown.

COCKBURN, C.J.-The question submitted was, whether, upon the evidence laid before the jury, they were bound if they believed the witnesses to find a verdict for the Crown. We are of opinion that they were not, and, consequently, that the verdict cannot stand. It appears that the prosecutor, on certain representations made to him as to the state of the business carried on by the prisoner, the customers and the profits generally, was induced to advance 500l. as part of the money of the concern, and upon that advance he was to enter into partnership with the prisoner. I am far from saying that where a party is induced to advance capital with a view of entering into a partnership upon representations which turn out altogether false, that that could be binding upon the party, or from saying that he might not rescind that contract and treat it as a nullity, and that he might not have a ground of indicting the person who induced him to part with his money upon such a statement. But I am clearly of opinion that if he enters into partnership with the other and does not rescind the contract, and upon faith of the representations made to him advances money to be part of the capital of the partnership he has not parted with his money, nor has the other obtained it within the meaning of the statute, for being a partner he still has a joint interest in it. Whether the prosecutor in the case could have rescinded the contract on the ground of having been induced to enter into it by representations altogether false is another question. he treats it as an existing contract. sought to induce another person to take his interest in the contract, treating himself as a partner. There is nothing in this case to induce us to think that there was not an actual existing partnership.

But

He

ERLE, J.-I concur in the same opinion, and on the same grounds. I come to the

I

conclusion that there was an original partnership, or at least evidence of an original partnership, which carried on business and was assented to by the prosecutor, and that the money was advanced to become the property of the firm. There is no authority to shew that this is an obtaining money by false pretences within the statute. wish to guard myself from being supposed to entertain the notion that a person who sets up a mere pretence of a partnership can secure himself thereby from the consequences of his fraud, if the jury thinks that it was a mere pretence, made solely with the view of appropriating the money and depriving the other of it. On the other hand, I wish not to be supposed to assent to the proposition, that an indictment can be sustained by proof of mere exaggeration of the prosperity of a business, where there is an original business. It is difficult to draw a defined line; but I think it has been decided that exaggerated praise does not render a person liable within the statute.

WILLIAMS, J.-I am of the same opinion. To set aside a verdict for misdirection, there must be some point of law submitted to us. The only point of law I see raised in the case is, whether upon the evidence this is a case for a conviction upon every view that the jury may take It is clear it was not, for the evidence was capable of a construction that would entitle the prisoner to an acquittal.

of it.

CROMPTON, J.-I agree with my Brother Williams, that the only question submitted to us is, whether the chairman was right in saying, if the jury believed the prosecutor, they must necessarily find the prisoner guilty. One difficulty in supporting this conviction was suggested by the Chief Justice, namely, the doubt whether the inducement alleged in any one of the counts could be said to be the inducement that led the prosecutor to part with his money. I am far from saying that the evidence might not have raised a case upon which they might have found the prisoner guilty. There were many matters which ought to have been submitted to the jury. The jury might have thought that there was no real trading at all; that the prisoner was setting up a wholly fictitious story. If so, there would have been a false pretence within the act, whether the

money was obtained on the supposition that the person defrauded was to have a share in it or not. On the other hand, the jury might have looked upon it as a case of mere exaggerated praise of the business. My present impression is, that such a case as that which has been put, of a misrepresentation of the number of barrels of ale sold per week, would not have been a false pretence within the statute. The jury might well have acquitted the prisoner, though they fully believed the prosecutor.

CHANNELL, B.-There are certain points which ought at least to have been submitted to the jury. There was at least evidence that there was a partnership between the prosecutor and the prisoner. It may be that the prosecutor might have avoided the contract. It does not appear that he did repudiate it; and at any rate, to a certain extent, he affirmed it. The money he parted with he parted with in the shape of capital for the concern. The chairman has left to us whether, if the jury believed the prosecutor, they were bound to find the prisoner guilty. That is a ruling

which cannot be sustained.

This CASE was stated by Erle, J.

The prisoner was convicted of stealing a cheque for 50l., the property of Harvey Wilmot Sitwell, in 1847, and admitted to bail. I reserved two questions for the consideration of this Court: first, was there evidence of the larceny, and, secondly, was there evidence of the rules of the savings-bank. With respect to the first question, the evidence was, that the pri

*Coram Cockburn, C.J., Erle, J., Williams, J., Martin, B. and Channell, B.

soner was clerk to the Rugby Savingsbank; that the course of business for drawing out money was this-the depositor gave a notice to the clerk of the amount required, and if present on the next night of business received a cheque for that amount from the manager in attendance; if absent, he allowed the clerk to receive such cheque, and to get the cash for it, to be kept by him till called for, and the depositor and clerk signed the book of account usual in a savings-bank. On the 25th of September 1847, the prisoner, as clerk, falsely pretended to James Haylock, the manager in attendance, that Elizabeth Glaby, a depositor, had given notice for 50%., and produced the usual entries signed by himself, and, as Elizabeth Glaby was not in attendance, received from Mr. Haylock a cheque for 50l., for which he afterwards obtained cash at the bank. [The manager at the time when he handed the cheque to the prisoner was induced by the prisoner to believe, and did believe, that the prisoner was authorized by Elizabeth Glaby to receive the cheque as her agent on her account (1).] Elizabeth Glaby had not given any notice or authority for drawing out 50%., or any sum, and the prisoner made the false pretence with the intention from the beginning of obtaining the cheque and appropriating it to his own In deciding this question it must be assumed that Mr. H. W. Sitwell was trustee of the savings-bank. It was objected for the prisoner that these facts shewed an obtaining of the cheque by a false pretence from Mr. Haylock, and not a larceny of a cheque the property of Mr. Sitwell. I overruled it, but reserved it for this Court. With respect to the second question, a printed copy of the rules, with two names of trustees printed at the end, with a manuscript certificate of Mr. Tidd Pratt, shewing his approval of the rules subjoined, was tendered under the 7 & 8 Vict. c. 83. s. 19. and the 8 & 9 Vict. c. 113. s. 1. It was objected, that the copy tendered was not signed by two trustees within the meaning of those statutes, their names being printed and not in manuscript. I overruled the objection, but reserved the point.

use.

Macaulay, for the prisoner (Nov. 14).— (1) The sentence within the brackets was inserted by Erle, J. as an amendment of the case.

The manager

This conviction is wrong. parted not only with the custody of the note, but with the possession and property in it. He believed the representation of the prisoner, that he was authorized by the depositor to receive the cheque for her. He gave it to the prisoner as her agent. The fact of the prisoner being also the servant of the bank does not prevent his being the agent of the depositor. The prisoner ought to have been indicted for obtaining the cheque by false pretences, not for stealing it. Secondly, the rules of the savings-bank were not properly received in evidence.-[On this head the argument is not stated, as no judgment was given on it.]

No counsel appeared for the prosecution. Cur. adv. vult. The judgment of the Court was now delivered by

COCKBURN, C.J.-This case has been amended by my Brother Erle, and upon the facts as amended there really is no case left to be argued; for it must now be taken that the prisoner received the cheque, which he afterwards cashed, as the agent of the depositor, and not as the agent of his employers, the managers of the savings-bank; and therefore he could not be charged with stealing.

ERLE, J.-I am clearly of that opinion. The case was an important one, and I heard it through, but I always thought that this was a fatal objection.

Conviction quashed.

Quarter Sessions-Power to adjournDirection by Statute to do Act at next Sessions-Table of Fees.

The provision of the statute 26 Geo. 2. c. 14. which requires that a table of fees shall be made at one Quarter Sessions, and shall be approved by the Justices of the Peace at the next succeeding Quarter Sessions, is not directory but imperative. Hence a table of fees was held to be void which was made at one sessions, considered at the *Coram Cockburn, C.J., Cresswell, J., Williams, J., Martin, B. and Watson, B.

next sessions, and by that Sessions adjourned to the third sessions, which approved it.

An appeal was brought by the plaintiff against the decision of the Court of Queen's Bench, making absolute a rule to enter a verdict for the defendant.

The pleadings and facts are set out in the report below (1).

Keane, for the plaintiff, contended that the provisions of the statute 26 Geo. 2. c. 14. s. 1, which required that the table of fees should be approved at the next succeeding sessions, was directory only, and that the Quarter Sessions had a general power of adjourning the consideration of all matters before them, and he cited In re Coroner of Stafford (2), The King v. the Justices of Wilts (3), The King v. the Justices of Leicester (4), The King v. the Mayor, &c, of Norwich (5), The King v. Kimbolton (6), The Queen v. Belton (7) and Keen v. the Queen (8).

Couch, for the defendant, was not heard.

COCKBURN, C.J.-We are all of opinion that the judgment ought to be affirmed. The Court of Queen's Bench were of opinion, that although the Quarter Sessions might have a power of adjournment with reference to many subjects within their jurisdiction, yet when the language of an act of parliament which confers upon them a power plainly intimates that that jurisdiction is to be exercised at a particular court, held at a particular period, the Quarter Sessions can only exercise the power at the specified court. In the statute now in question, the legislature has provided that the table of fees, made and settled at one sessions, shall be submitted for approval, and if it is to pass into a rule shall be approved at the next succeeding sessions, after which it is to be submitted for final ratification to the Judges at the next assizes. I quite concur that the expression in the statute,

"the next succeeding Quarter Sessions," cannot be extended to mean a sessions held subsequently to that next sessions. It was contended, that the provision of the act was directory only, and one or two cases were cited to support that construction, and it was said we must look at the object the legislature had in view. Even trying it by that test, I think that there is good reason for supposing that the legislature intended that the table of fees should be made at one sessions, and that the approval of it take place at the following sessions, and that as short an interval as possible should intervene between the making and confirming it. The object might be to prevent, as far as possible, any attempt being made to influence the votes and opinions of the Magistrates on the matter. At all events the language is positive and peremptory. What seems to me conclusive against holding the construction contended for is, if we were to say that it need not necessarily be the next court, what is there to hinder the matter being taken up and dealt with at a third, fourth, or fifth court after that in which the table of fees was first made? It does not seem to me that we should be justified in putting this construction on the plain positive language of the act of parliament.

CRESSWELL, J.-I am of the same opinion. In The King v. the Justices of Leicester, it was held that the statute there in question, though it was directory only as to the particular week in which the sessions was to be held, was not directory on the point whether the Quarter Sessions should be held half-yearly or yearly. When a special power is given to Justices, they must execute it as it is prescribed in the act of parliament which confers it.

WILLIAMS, J. concurred.

MARTIN, B.-Sometimes the words of an act of parliament may be considered directory only. But I think such a construction ought to be struggled against. To hold this provision to be directory would be to make a new act of parliament.

WATSON, B.-It is impossible to say that the sessions at which the table of fees was confirmed was the next succeeding Quarter Sessions to that at which it

was made.

Judgment affirmed.

[IN THE EXCHEQUER CHAMBER.]

1857.

}

THE QUEEN v. THE OVERSEERS

July 4. S OF CHRISTCHURCH.*

Vestry-Majority-Mandamus-Poorrate Collector-Possession of Rate Books.

A local act of parliament (18 Geo. 3. c. lxxiv.) empowered the vestrymen of a parish, or the major part of them, to remove the poor-law collector of the parish from his office-Held, (affirming the decision below), that the majority must be an actual majority of the vestrymen assembled; and that it was not sufficient, at a meeting of thirty-five vestrymen, for sixteen to vote for the removal and eleven against it, the remaining eight abstaining from voting altogether.

Where it appeared that the poor-rate collector could not collect the rates without having the rate-books in his possession, and that it had been usual for the overseers of the parish to deliver the rate-books to him for such purpose, and that there was no legal impediment to their delivery to him, it was held, that he was entitled to have the temporary possession of them for such purpose as against the overseers-affirming the decision below.

Error was brought in this case by the defendant below to reverse the judgment of the Court of Queen's Bench, in favour of the Crown, on a mandamus.

The writ, pleadings, and case are set out in the report below (1).

The case was argued (June 7, 1856), by Atherton, for the plaintiff in error; and by

Hugh Hill, for the defendant in error. Cur, adv. vult. Judgment was now delivered by

WILLIAMS, J.-This was a mandamus directed to the overseers of Christchurch, Middlesex, commanding them to deliver to the prosecutor, as collector of the poorrates for the new division of the parish, the rate-books for the said new division, from the 5th of April 1853 to the 10th of January 1856, for the purpose of enabling him to fulfil his duty as collector. The

* Coram Cockburn, C.J., Cresswell, J. Williams, J., Martin, B., Willes, J. and Bramwell, J. (1) 26 Law J. Rep. (N.s.) M.C. 68.

defendants are the select vestry constituted by the 18 Geo. 3. c. lxxiv, to manage the affairs of the poor of the parish of Christchurch, Middlesex, with power inter alia to make rates, and to appoint and remove collectors. Those powers were conferred by the act upon them, "or the major part of them." The prosecutor was appointed as collector under the act upon the 20th of April 1848. His remuneration was to consist of a per-centage upon the rates collected by him. As to the duty with respect to the rate-books, the following statement is made in the mandamus, namely-that during the continuance of his office, it has been and is the duty of the collector upon and at the time of receiving any of the rates, to enter the receipts in the rate-books opposite the assessment, and the names of the persons rated for the property in respect of which such rates were so received; and that the collector, without having such rate-books delivered to him, or in his possession, cannot fulfil his said duty, or fill up, or use, or keep the said books required to be filled up and kept by him, under and according to an order of the Poor Law Commissioners recited in the mandamus, or produce to the auditors the statement thereby required, or otherwise fulfil the duty as such collector. The defendants in their return set up a dismissal of the prosecutor from his office of collector before he demanded the ratebooks in question. That dismissal was alleged to have taken place at a meeting duly convened, and held on the 22nd of September 1854, for the purpose of considering the prosecutor's conduct, with a view to his dismissal. Thirty-five of the select vestry were present. A motion was made and seconded, that the prosecutor should be dismissed: sixteen voted for, and eleven against the motion; the remaining eight being present, but not voting. In this state of things the defendants acted upon the above resolution, as a valid dismissal of the prosecutor. He, on the contrary, treated it as invalid, and insisted upon the delivery to him of the rate-books to enable him to continue the performance of his duty as collector. Thus arises the principal question in the case, namely, whether, in the meaning of the statute, the "major part of the select vestry concurred in his dismissal so as to make it