ing stores in stores be not marked the persons are to give a satisfactory account, or the stores are to become any barge, boat, or other craft, reasonably suspected to contain sons conveyany stores, &c. embezzled, or unlawfully procured; and apprehend them may be the persons reasonably suspected of having, or conveying them in detained, &c. such barge, &c. and convey them, together with the stores, &c. and if the before a commissioner or justice of peace, who are to commit, marked are to bind over, or otherwise deal with such persons according to be committed, law, in respect of the marked stores, &c.; and in respect of the &c.; and if stores, &c. not marked, but nevertheless reasonably suspected to be the property of his Majesty, the persons on whom they are found are to be required to give an account, to the satisfaction of the commissioner or justice, that they were not embezzled, or if embezzled had come to their possession honestly, and without knowledge or suspicion, that they had been embezzled; on failure whereof by a reasonable time to be set, as thereinbefore men- of misdetioned, such stores, &c. are to become forfeited, and the person meanor. apprehended to be adjudged guilty of a misdemeanor, and the barge, boat, &c. are to be forfeited. The following section of the Apprehension act gives power to persons so deputed, and also to any peace officer, to apprehend persons having any stores, &c. though not in any barge, boat, or other craft, and authorizes similar proceedings in such cases. The act then provides for the disposal of stores, &c. and any barge, boat, &c. which have become forfeited. forfeited, and the persons deemed guilty of persons having stores, &c. though not in a barge, &c. S. 14, 15. Disposal of forfeited stores, &c. demeanors. The sixteenth section enacts, that every person adjudged guilty of any of the aforesaid misdemeanors, before any commissioner, s. 16. Punishor justice of peace, shall, for every such misdemeanor, forfeit for ment of misthe first offence the sum of forty shillings; for the second offence the sum of five pounds; and for the third and every subsequent offence, the sum of ten pounds over and above the other forfeitures thereinbefore mentioned. And it further provides for the levying and disposal of the forfeitures. tion to be cer By the seventeenth section, every adjudication in any of the S. 17. Convicsaid misdemeanors is to be certified by the commissioner or justified to the tice making it to the next general or quarter sessions of the quarter sespeace, to be filed and entered amongst the records of the session: sions. and such conviction is not to be set aside or quashed for want of form, nor be removed by certiorari, advocation, or suspension into any other court; but shall be deemed to be final to all intents and purposes whatsoever. S. 18, 19, 20, 21, 22, 23. Summary jurisdiction Powers are then given to the commissioners of the navy, ordnance, and victualling, and to justices of peace out of sessions, to hear and determine offences in a summary way, in cases where the stores found are of a value not exceeding twenty shillings, and where stores, punish the offender by fine, &c. And an appeal is given to the quarter sessions from such convictions. 66 The twenty-fourth section enacts, "that nothing herein before "contained, which gives to any commissioner or justice of the "peace, power and authority to hear and determine offences in a summary way, shall extend or be deemed construed or taken to "extend, to prevent the party or parties accused of selling or delivering, or of having in his, her, or their custody, possession, "or keeping, or of receiving or concealing any of the stores, "marked as above mentioned, under the value of twenty shil twenty shil- the act as to parties accus stolen goods. S. 25,26. Com ed stores, and the buyer be protected by a certificate. "lings, from being prosecuted as receivers of stolen goods under "this act, or for unlawfully having the same in his, her, or their "custody, or concealing the same under the said recited acts of "the 9 & 10 W. 3., 9 Geo. 1., or 17 Geo. 2., in any court of re"cord, oyer and terminer, or otherwise, as they might have been "if no such power or authority had been given; or to take away "from any person or Court whatsoever any power, right, juris66 diction, pre-eminence or authority, which he or they or any of "them ought lawfully to have had and enjoyed for the hearing "and determining of such offences, in case no such power or au"thority to hear and determine the same in a summary way had "been given; so as that the same person shall not be punished "twice for the same offence." It is then enacted, that the commissioners of the navy, ordmissioners of nance, or victualling, may sell and dispose of marked stores, as the navy, &c. may sell mark- before the making of the act; and that persons buying them of the commissioners may keep them without incurring any penalty, upon producing a certificate under the hand and seal of three or more of the commissioners, that they bought the stores from them, or a certificate from such persons as shall appear to have bought the stores from the commissioners, that such stores were stores or part of stores bought of the commissioners. In these certificates the quantities of the stores are to be expressed, and the time when and where bought of the commissioners: and the commissioners, or any three of them, and also the persons afterwards selling the stores are directed, from time to time, to give such certificates to the buyers desiring the same, within thirty days after the sale and delivery. And provision is made for the punishment, by forfeiture of 2007., &c. of persons giving or publishing any false certificate. Penalty for false certificate. S. 27, 28. Pro tection of persons executing the statute. S. 29. et sequ. Statute to extend to Scot. land. 52 Geo. 3. c. 12. extends the former statutes to Ireland. 54 Geo. 3. c. 60. extends the 9 & 10 W. 3. c. 41. and Several enactments are then made for the protection of persons making seizures, and otherwise acting in execution of the statute. By the twenty-ninth section, the statute is to extend to Scotland; and several subsequent sections direct the course of ceedings in that country. pro The statute 52 Geo. 3. c. 12. recites the statute 22 Car. 2. c. 5., (i) and also the statutes 9 & 10 Wm. 3. c. 41., 9 Geo. 1. c. 8., 17 Geo. 2. c. 40., and 39 & 40 Geo. 3. c. 89. ; and enacts, that all those acts, so far as they severally relate to his Majesty's naval ordnance and victualling stores, therein respectively mentioned, shall extend to Ireland; but provides that no summary proceedings shall be had there before a justice of the peace, without the consent in writing of the naval store-keeper for the time being, at any port in Ireland. The statute 54 Geo. 3. c. 60. extends the provisions of the 9 & 10 W. 3. c. 41., and 39 & 40 Geo. 3. c. 89., in respect to the making, selling, delivering, receiving, having in possession, and 39 & 40 Geo. concealing, cordage wrought either with a white thread laid the contrary way, or with a twine laid to the contrary way, mentioned in those acts, to cordage wrought with one or more worsted threads. 3. c. 89., to cordage work ed with worsted threads. (i) Ante, 268. 66 or 55 Geo. 3. c. the 9 & 10 W. 3. c. 41., the Geo. 1. c. 8., 127. recites 9 the 17 Geo. 2. extends those acts to all public stores. The statute 55 Geo. 3. c. 127. repeals a former act, 53 Geo. 3. c. 126. It also recites the statutes 9 & 10 W. 3. c. 41., 9 Geo. 1. c. 8., 17 Geo. 2. c. 40., and 39 & 40 Geo. 3. c. 89., and enacts that those statutes, 66 so far as the same severally relate to his "Majesty's naval, ordnance and victualling stores therein respec- c. 40., and the "tively mentioned, and all the pains, penalties, forfeitures, regu- 39 & 40 Geo. "lations, restrictions, powers, provisions, clauses, matters and 3. c. 89., and things therein respectively contained, relating to his Majesty's "naval, ordnance and victualling stores therein respectively men"tioned, shall extend and be construed to extend to all public "stores whatsoever under the care, superintendance, or controul "of any officer or person in the service of his Majesty, his heirs "or successors, or employed in any public department or office, "either marked with the marks or any of them in the said re"cited acts or any of them specified, or with the broad arrow, "and the letters B. O., or with a crown and the broad arrow, "with his Majesty's arms, or with the letters G. R., to denote "the property of his Majesty his heirs or successors therein, aud "to all and every person and persons, not authorized by the pro"per officer or officers, person or persons in his Majesty's ser"vice, in that behalf so to do, using any such marks, or making any goods marked with such marks, or any of them, and to all "and every person and persons in whose custody, possession, or "keeping any such public stores so marked as aforesaid shall be "found, or who shall willingly or knowingly receive or have in "his, her, or their custody, possession, or keeping, or who shall "conceal any such public stores so marked as aforesaid, unless "such person or persons shall upon his, her, or their trial, pro"duce a certificate or certificates under the hand or hands of "the proper officer or officers, person or persons in his Ma"jesty's service authorized to grant the same, of such and the "like nature as the certificate in the said recited acts of the 9 " & 10 W. 3., and 39 & 40 Geo. 3. mentioned; and to all and every person and persons who shall wilfully and fraudulently "destroy, beat out, take out, cut out, deface, obliterate or erase "wholly or in part, any of the said marks, or cause, procure, employ, or direct any other person or persons so to do, for "the purpose of concealing the property of his Majesty his heirs or successors therein, as fully and effectually, to all intents and purposes, as if all the same several pains, penalties, forfeitures, "regulations, restrictions, powers, provisions, clauses, matters, "and things, in the said several acts contained, so far as the "same severally relate to his Majesty's naval, ordnance, and vic"tualling stores, and the punishment of persons offending in "manner therein mentioned were herein and hereby severally re"peated and re-enacted in respect to all other public stores what"soever." 66 of these statutes. Onus Upon the construction of these statutes it should be observed Construction that the king's mark denotes the original ownership, and that the onus probandi is thrown upon the party having public stores in probandi upon his possession, to account satisfactorily for that possession accord- the party having to the regulations prescribed. But though the bare fact of pos- his possession. ing stores in session ordinarily concludes the party, it is open to explanation; But the fact of possession is be rebutted by and the presumption arising from it may be rebutted by circumstances. (0) This principle was acted upon by Mr. Justice Foster, in a case where a widow woman was indicted on the statute 9 & 10 W. 3. open to explanation; and c. 41. for having in her custody divers pieces of canvass marked the presumpwith his Majesty's mark in the manner described in the act, she tion arising from it may not being a person employed by the commissioners of the navy to make the same for his Majesty's use. The canvass was procircumstances. duced at the trial marked as charged in the indictment, and was proved to the satisfaction of the court and jury to be of that sort which is commonly made for the use of the navy; and to have been found in the defendant's custody. The defendant did not attempt to shew that she was within the exception of the act, as being a person employed to make canvass for the use of the navy; nor did she offer to produce any certificate from any officer of the crown touching the occasion and reason of such canvass coming into her possession. Her defence was that when there happened to be in his Majesty's stores a considerable quantity of old sails, no longer fit for that use, it had been customary for the persons, intrusted with the stores, to make a public sale of them in lots, larger or smaller, as best suited the purpose of the buyers; and that the canvass produced in evidence, which happened to have been made up long since, some for table linen and some for sheeting, had been in common use in the defendant's family a considerable time before her husband's death, and upon his death came to the defendant; and had been used in the same public manner by her to the time of the prosecution. This was proved by some of the family, and by the woman who had frequently washed the linen. This sort of evidence was strongly opposed by the counsel for the crown, who insisted that, as the act allows of but one excuse, the defendant, unless she can avail herself of that, cannot resort to any other and they asked why, if the canvass was really bought of the commissioners, or of persons acting under them (which is the only excuse pointed out by the statute), no certificate of that matter was taken at the time of the purchase, since the fourth section of the act admits of that excuse, and the second section admits of no other? But Foster, J., was of opinion that though the clause of the statute, which directs the sale of these things, had not pointed out any other way for indemnifying the buyer than the certificate; and though the second section seemed to exclude any other excuse for those in whose custody they should be found; yet still, the circumstances attending every case, which might seem to fall within the act, ought to be taken into consideration; otherwise a law calculated for wise purposes might, by too rigid a construction of it, be made a handmaid to oppression. He observed that there was no room to say that this canvass came into the possession of the defendant by any act of her own; that it was brought into family use in the lifetime of her husband, and it continued so to the time of his death; and by act of law it came to her. That things of this kind had been frequently exposed to public sale; and though the (0) 2 East. P. C. c. 16. s. 153. p. 765. act pointed out an expedient for the indemnity of the buyers; yet, probably, few buyers, especially where small quantities had been purchased in one sale, had used the caution suggested to them by the act. And that if the defendant's husband really bought this linen at a public sale, but neglected to take a certificate, or did not preserve it, it would be contrary to natural justice, after such a length of time, to punish her for this neglect. He, therefore, thought the evidence given by the defendant proper to be left to the jury; and directed them that if, upon the whole of the evidence they were of opinion, that the defendant came to the possession of the linen without any fraud or misbehaviour on her part, they should acquit her; and she was acquitted. (p) In a subsequent case of an information upon the statutes 9 & 10 W. 3. c. 41. and 17 Geo. 2. c. 40. s. 10. it was contended by the counsel for the prosecution that the only mode by which the defendant, against whom a possession of the stores was proved, could discharge himself, was by producing the Navy Board certificate granted at the time of the sale, as that was the only evidence of the legal possession of them. But Lord Kenyon, C. J., said that though it was clear that in prosecutions under the statutes in question it was sufficient for the crown to prove the finding of the stores, with the king's mark, in the defendant's possession, to call upon him to account for that possession, and the manner of his coming by them; so as to throw the onus upon the defendant of proving that he had legally become possessed of them; yet, that it could not bear a question, but that the defendant had other means of shewing that he had lawfully become possessed of them than by the production of the certificate from the Navy Board: as, for example, he might shew that he had bought them from another person who was in the practice of buying stores at the navy sale; and who, therefore, might fairly be presumed to have had the regular certificate, but who, when he sold part to the defendant, could not, consistently with his own safety, part with the certificate, he had obtained, of his having been the purchaser of the whole lot. (q) And his lordship, after alluding to the case in which this doctrine had been holden by Mr. Justice Foster (whom he spoke of as one of the best crown lawyers that had ever sat in Westminster-hall), said that if the defendant could shew either a navy certificate, or prove the purchase of the stores mentioned in the information from any person who might be presumed to have been possessed of the proper certificate, from the circumstance of such person having frequently been a purchaser at such sales, he was of opinion that it was such evidence as ought to induce the jury to find the defendant not guilty. And the defendant, accordingly, gave such evidence, and was acquitted. (r) Where an indictment charged that one T. Cole, on the 28th of January, 1801, unlawfully, willingly, and knowingly did receive (p) Anon. cor. Foster, J., on the Western circuit, Fost. 439. (q) At this time, by the statute 39 & 40 Geo. 3. c. 89. s. 25. a buyer is protected by producing a certificate from such person as shall appear to (r) Rex v. Banks, cor. Lord Ken- |