circumstances of the case) between a receiving and session. the particular and have in his custody, possession and keeping, certain naval stores of the king, being all marked with the broad arrow, he not being a contractor, &c., against the statute; with a second count, charging him with concealing naval stores, &c.; and the jury having in pos found the prisoner guilty on the first count, but acquitted him on the second, and said that they did not find that he received the stores after the 28th of July, 1800, but only that he had them in his possession after that day; the judgment was respited in order to take the opinion of the Judges upon the point. A majority of the Judges were inclined to think that the statute was to be construed in the disjunctive, and the word or (receive or have) not to be taken as and: but, because of the disagreement of some, and that the case was not likely to occur again, the prisoner, on the finding of the jury, was recommended to mercy. (s) The forfeiture under 9 & 10 W. 3. c. 41. s. 2. accrues by conviction on an indictment. Counts upon sections and 2 of the 39 & 40 Geo. 3. c. 89. may be joined in the same in dictment. Proof of negative averment of the prisoner not being a contractor, &c. As to the informer being a witness. It appears to have been agreed that the foregoing case was not within the statute 9 & 10 W. 3. c. 41. because the goods were not charged to have been found in the prisoner's possession. (t) In a case upon the statute 9 & 10 W. 3. c. 41. s. 2. an exception was taken to the indictment, in arrest of judgment, that no indictment lay because it was a new offence, and a particular penalty inflicted of forfeiture of the goods and 2007. but the exception was over-ruled because the forfeiture accrues by the conviction on an indictment for the offence. (u) Though the having in possession new stores, or stores not more than one-third worn, is subject to transportation for fourteen years, by the 39 & 40 Geo. 3. c. 89. s. 1., and the having in possession stores not new, or more than one-third worn, is, by the second section of that statute, subjected to a different punishment, yet counts for both these offences may be included in the same indictment. (x) It is said to have been agreed that, although an indictment state that the prisoner, "then or at any time before "not being a contractor with or authorized by the principal of"ficers or commissioners of our said lord the king, of the navy, "ordnance, &c. for the use of our said lord the king, to make any "stores of war, &c. ;" yet, that it is not incumbent on the prosecutors to prove this negative averment, but that the defendant must shew, if the truth be so, that he is within the exception in the statute. (y) lt appears to have been holden in one case, that the informer was an interested witness, as being entitled to a moiety of the fine of 2007., on a prosecution on the statutes 17 Geo. 2. c. 40. s. 10. and 9 & 10 W. 3. c. 41., though it was urged that it was in the discretion of the Judge to inflict a corporal punishment in lieu of the fine; and the witness was rejected. (z) But, in a subsequent case, Lord Kenyon, C. J., said, that he had considered the objection to the competency of the informer's being a witness on the (8) Cole's case, 1801, MS. and 2 East. P. C. c. 16. s. 153. p. 767. The date of the stat. 39 & 40 Geo. 3. c. 89. is the 28th July, 1800. (1) Id. ibid. (u) Reg. v. Harman (3 Annc,) 2 Ld. Raym. 1104. (x) By Lord Ellenborough, C. J., in Rex v. Johnson, 3 M. & S. 550. (y) Willis's case, 1791, 1 Hawk. P. C. c. 89. s. 17. (2) Rex v. Blackman, cor. Kenyon, C. J., 1791, 1 Esp. R. 93. ground of interest; and that, as the statute had given the Court a power, at their discretion, either to inflict a corporal punishment, or to impose a fine in case of conviction, and as it was only in case a fine was imposed that the witness could expect to derive any benefit, (an uncertainty depending upon the judgment of the Court,) he was then of opinion that the objection went to the credit, not to the competency, of the witness; and that, therefore, his evidence was admissible. (a) It appears to have been holden that, where a peace officer, in searching for other goods, discovered naval stores, and in consequence of such discovery by him an information was filed against the offender, such peace officer was to be deemed the informer. (b) But, where a witness stated that though no information respecting the stores in question had been given to the admiralty until the time of the seizure, yet that he made the seizure in consequence of information given to him, by another person, of the stores being in the defendant's possession, it was ruled that the witness was not to be considered as the informer; and that the informer was the person upon whose information the seizure had been made, not he who had made the seizure in consequence of such information. (c) As to the person considerformer. ed as an in Corporal pube inflicted under the statutes 9 & 10 nishment may W. 3. c. 41. 17 Geo. 2. c. 40. s. 10. under 9 & 10 With respect to the power of the Court to inflict corporal punishment, under the authority of the statutes 9 & 10 W. 3. c. 41. s. 2., 9 Geo. 1. c. 8. s. 4., and 17 Geo. 2. c. 40. s. 10., it was contended, in a case where the defendant had been committed on an indictment charging him in one count with concealing naval stores, and in another with having them in his custody, that no such power c. 8. s. 4., and existed under either of those statutes, where the defendant was ready and offered to pay the penalty of 2001.; but the Court of King's Bench said it was impossible to raise any serious doubt upon the point, for that the words of the statutes were in the disjunctive, enabling them either to impose a penalty, or to punish the offender corporally. (d) In another case, where the defendant And costs may was brought up for judgment for a similar offence, it was moved be awarded on the part of the prosecution, that he should be adjudged to pay w. 3. c. 41. the whole penalty of 2001. and the costs; and submitted that the s. 2. Court had the power of awarding costs under the words of the 9 & 10 W. 3. c. 41. s. 2. And the Court adjudged the defendant to pay the penalty of 2007. together with the costs, which were taxed at 127. (e) But the statute 39 & 40 Geo. 3. c. 89., took away the power of But the stathe Court to sentence to hard labour. A defendant was brought tute 39 & 40 up for judgment, after conviction, on the stat. 9 & 10 W. 3. c. 41. took away the s. 2., for unlawfully having in his possession the king's naval power of the stores, marked with the king's mark; and judgment was about Court to sen to be pronounced that he should be imprisoned in the house of labour. correction for the county of Surry, and there kept to hard labour (a) Rex v. Cole, cor. Lord Kenyon, C. J., 1794. 1 Esp. 169. (b) Rex v. Blackman, 1 Esp. R. 95. (c) Rex v. Banks, 1 Esp. R. 145. (d) Rex v. Bland, 5 T. R. 370. 2 Leach 595. 2 East. P. C. c. 16. s. 148. p. 760. And the later statute, 39 & 40 268. (e) Chapple's case, 5 T. R. 371. note (a). Geo. 3. c. 89. tence to hard for three calendar months, and be once during that time publicly whipped. This would have been warranted by the statute 17 Geo. 2. c. 40. s. 10., reciting the statutes 9 & 10 W. 3. c. 41. and 9 Geo. 1. c. 8.; but a doubt occurring how far the power of sentencing to hard labour was taken away by the subsequent statute of the 39 & 40 Geo. 3. c. 89. s. 2. the Court, upon further consideration, and comparing the different provisions of these statutes, were of opinion that the power of sentencing to hard labour was taken away by the latter statute, and therefore pronounced judgment that the defendant should be imprisoned in the house of correction for the county of Surry, for three calendar months, and be once during that time publicly whipped. (ƒ) (ƒ) Rex v. Bridges, K. B. 1806, 8 East. 53. CHAPTER THE THIRTIETH. OF UNLAWFULLY RECEIVING TACKLE OR GOODS CUT FROM OR 66 66 men, 1 & 2 Geo. 4. Pilots, &c. taking up anchors, cables, &c. cut from &c. or goods, or left by ships, are to to the deputy make a report vice-admiral, c. 75. s. 1. and to deliver the articles, &c. THE statute 1 & 2 Geo. 4. c. 75. s. 1. enacts, "that all pilots, boathovellers, or other persons who shall take up any anchors, "cables, tackle, apparel, furniture, stores, or materials, or any goods or merchandize which may have been parted with, cut "from or left by any ship or vessel within any harbours, rivers, "or bays, or on any of the coasts of this kingdom, whether the 66 same ship or vessel shall be or shall have been in distress or "otherwise, and which shall have been weighed, swept for or "taken possession of by any such boatman, pilot, hoveller, or "other person," shall send a report in writing of the articles so found, and stating the marks, if any, thereon, and also an accurate and particular description of the bearings, distances, and situations, and the time when and where the same were so found, to a deputy vice-admiral or his agent, at or near to the port or place where such boatmen, &c. shall first arrive with such articles, within forty-eight hours after their arrival at such port, &c. or before they shall leave the port, if they shall quit it before that time shall expire; and shall also, within the same period, deliver such articles so found into a proper warehouse, or such other place as the vice-admiral of each county shall appoint for safe custody, until the same shall be claimed by the owner thereof, or his agent, and the salvage, together with such other charges and expences as are thereinafter directed to be paid in respect of such articles, paid by him or them, or security given for the payment thereof, to the satisfaction of the salvor, and that "every such And pilots, "pilot, boatman, hoveller, or other person, who shall wilfully and "fraudulently keep possession of, or retain or conceal, or secrete any anchors or cables, tackle, apparel, furniture, stores, or ma"terials, or any goods or merchandize, or deface, take out, or "obliterate the marks and numbers thereon, or alter the same "in any manner, with intent thereby directly or indirectly to prevent the discovery and identification of such articles so &c. fraudu ing, &c. any such articles, or defacing marks, and lently retain or not reporting and delivering deemed guilty &c. to be of receiving goods knowing them to have been stolen. S. 12. Persons knowingly, &c. purchas ing or receiv ing any an &c. or goods taken up, &c. if the direc 66 "found, weighed, swept for, or taken possession of as aforesaid, and shall not report and deliver the same at some proper warchouse or other place in manner aforesaid, and within "the time herein-before limited, shall forfeit all claim to sal"vage, and shall, on conviction, be adjudged and deemed guilty "of receiving goods knowing them to have been stolen, and "shall suffer the like punishment as if the same had been stolen "on shore." 66 66 The twelfth section enacts, "that if any person shall knowingly "and wilfully, and with intent to defraud and injure the true owner or owners thereof, or any person interested therein as "aforesaid, purchase or receive any anchors, cables, or goods chors, cables, or merchandize which may have been taken up, weighed, swept "for, or taken possession of, whether the same shall have belonged "to any ship or vessel in distress or otherwise, or whether the tions have not same shall have been preserved from any wreck, if the direcbeen complied with, are to be "tions herein before contained with regard to such articles shall deemed guilty "not have been previously complied with, such person or persons "shall, on conviction thereof, be deemed guilty of receiving "stolen goods, knowing the same to be stolen, as if the same had "been stolen on shore, and suffer the like punishment as for a "misdemeanor at the common law, or be liable to be transported "for seven years, at the discretion of the Court before which he "she or they shall be tried." of receiving stolen goods, knowing, &c. S. 13. requires masters, &c. of ships going out to sea, finding or receiving anchors, cables, &c. to take certain steps for communicating, &c. S. 15. makes anchors and cables obtain ed by weigh for, &c. to any foreign port, &c. and The statute then requires, that in case any master, &c. of any ship bound to parts beyond the seas, shall find and take on board any anchor, &c. or any goods, &c. or shall receive such articles on board from any other person who may have found the same, knowing the same to have been so found, the master, or other person having the command of the ship, shall make a true entry in the log-book of the description of the articles, stating the marks, and the bearings, time, &c. when taken on board, and shall transmit a report on the first opportunity to the Trinity House, and on the return of the ship shall deliver up the articles into the possession of a deputy vice-admiral, or his agent, within twentyfour hours, with a similar report; and for default imposes a pecuniary penalty not exceeding 1901. (a) 66 The fifteenth section contains the following enactment: "wherethe conveying as pilots, hovellers, boatmen, and other persons in small vessels, have for many years conveyed anchors and cables which "may have been weighed, swept for, or taken possession of by ing, sweeping « them as aforesaid, or which they may have purchased of other persons, knowing them to have been weighed, swept for, or "taken possession of, without being reported as aforesaid, to "foreign countries, and there sold and disposed of, to the manipunishable by "fest injury and loss of the owners thereof; for remedy whereof transportation. «be it further enacted, that every pilot, hoveller, boatman, or the "master of any such vessel, who shall convey any such anchor or "cable to any foreign port, harbour, creek, or bay, and there sell "and dispose of the same, shall be deemed and adjudged guilty of there selling, &c. felony, (a) S. 13. |