1871 v. difference? And if so, how can it be otherwise, because the place of deposit chosen is upon the land of the same owner on whose THE QUEEN grounds the rabbits were killed. The case seems to me not to fall within the rule laid down by Hale, for, to use his words, the act "continuated." here was BYLES, J. I am of the same opinion, though I have entertained some doubts. It is here proved as a fact that the possession of the poachers was never abandoned; and, in fact, the rabbits from the time they were taken remained, in part at least, in the bags of the poachers. I think, therefore, the whole transaction must be regarded as one continuous transaction. BLACKBURN J. I am of the same opinion. To constitute larceny at common law it was necessary that the thief should both take and carry away. And it was early settled that in the case of a thing like a tree, for instance, when the very act which converted it into a chattel was accompanied by the taking of it away, there was no larceny. Almost all the cases falling within this rule have since been made larceny by statute; but the common law rule remains the same. Even in the case of Blades v. Higgs (1), in which it was held that game when killed becomes the property of the owner of the land upon which it was raised and killed, it was expressly pointed out that it by no means followed that an indictment for larceny would lie. The doctrine is a very early one; see Book of Assizes, 12th year, par 32, where it was applied to the case of trees. The result is, that while taking away dead game is larceny, it is otherwise where the killing and taking away are one continuous act. Now, to apply these principles to the present case, I do not think it makes any great difference that the prisoner was himself one of the poachers; I think the result would be the same if he had been the servant of a dealer with knowledge of the circumstances under which the rabbits had been killed. But then there is the fact that the rabbits after being killed were left hidden in a ditch upon the land for nearly three hours. I should myself have thought that that made no difference in the case; but a passage has been cited from TOWNLEY. 1871 THE QUEEN v. TOWNLEY. Lord Hale in which he says, that if you strip lead from a church, "and after about an hour or so come and fetch it away," this is larceny; and he speaks of this as decided law, citing Dalton as his authority. A dictum of Gibbs, C.J., to the same effect has also been referred to. If we are to understand these passages in the sense put upon them by my Brother Bramwell, as applying only to a case in which the wrongdoer has abandoned and lost all property and possession in the things in question, I have no quarrel with them, and they do not apply to the present case. But if those passages mean that the mere cessation of physical possession is sufficient to make the subsequent act of removal larceny, then they do apply to the present case. And in that case, great as is my respect for Lord Hale, I cannot follow him. I cannot see that it makes any difference whether those who have taken game hide it in one place or hide it in another. Conviction quashed. April 29. THE QUEEN v. THOMAS FLETCHER. Perjury-Jurisdiction-Bastardy Summons-Application before Birth of Child Section 2 of 7 & 8 Vict. c. 101, enacts that where application for a bastardy summons is made before the birth of the child, "the woman shall make a deposition upon oath." The prisoner was convicted of perjury, alleged to have been committed on the hearing of a bastardy summons. It appeared that the summons had been issued against the prisoner before the birth of the child. Upon the application for it no written deposition was made, but only a verbal statement upon oath by the The prisoner appeared to the summons, and made no objection to its validity or to the jurisdiction of the Court: woman. Held that, the Court had jurisdiction to hear the summons, and that the conviction for perjury was right. Per Martin, B., Byles, and Blackburn, JJ.: The word "deposition" in the above section means evidence taken down in writing. Per Blackburn, J.: The enactment is only directory, and the absence of a deposition could not oust the jurisdiction. Per totam Curiam: The irregularity was waived by the prisoner's appearing to the summons and not objecting. CASE stated by Cleasby, B. The prisoner was tried at the Spring Assizes for the county of Derby, for perjury alleged to have been committed by him at the hearing of an affiliation summons. The following is a copy of the summons:— "Derbyshire to wit. "To Thomas Fletcher, of Heanor, in the "Whereas, application hath this day been made to me, the undersigned, one of Her Majesty's Justices of the Peace for the County of Derby, by Jane Beswick, single woman, residing at Heanor, in the petty sessional division of the said county for which I act, now with child, of which child she hath this day duly sworn on oath before me, the said justice, that you are the father, for a summons to be served on you to appear at a petty session of the peace, according to the form of the statute in such case made and provided. "These are therefore to require you to appear at the petty session of the justices, holden at the justice room in Heanor, in the said county, being the petty session for the division in which I usually act, on Monday, the first day of August, in the year of our Lord one thousand eight hundred and seventy, at eleven o'clock in the forenoon, to answer any complaint which she shall then and there make against you touching the premises. Herein fail you not. "Given under my hand at Heanor, in the said county of Derby, this twenty-fifth day of April, one thousand eight hundred and seventy. "M. MUNDY. petty sessions, as summons has been "NOTE.-If you neglect to appear at the above stated, the justices, upon proof that this duly served upon you, or left at your last place of abode, may proceed, if they think fit, at the petty sessions therein named, to make an order upon you, as the putative father of the child above referred to, to pay a weekly sum to the said mother for its maintenance, and other sums for costs and expenses. "Summons on application before birth." The application for the summons was made before the birth of the child, and the magistrate's clerk, who was called as a witness on the trial of the indictment, stated that no written deposition 1871 THE QUEEN v. FLETCHER. 1871 was made upon the application. He also stated that when the THE QUEEN application was made the complainant was sworn, and verbally made a statement to the effect stated in the summons. v. FLETCHER. The counsel for the prisoner referred to the statutes 7 & 8 Vict. c. 101; 8 Vict. c. 10 (1), and contended that it was essential that there should be a deposition in writing upon oath to give the magistrate jurisdiction to hear the case. The prisoner was convicted. The question for the Court was, whether it is essential to give the magistrate jurisdiction to hear the application summons, that there should have been a written deposition upon oath by the complainant when the application for the summons was made. 66 April 29. Bristow for the prisoner. The summons in this case was issued before the birth of the child, and in such case 7 & 8 Vict. c. 101, s. 2 expressly requires that there shall be a deposition on oath by the woman. 'Deposition" always means evidence either given in writing, or at least reduced to writing at the time. In Bouvier's Law Dictionary, "deposition" is defined as "the testimony of a witness reduced to writing, in due form of law, by virtue of a commission or other authority of a competent tribunal; or, according to the provisions of some statute law, to be used on the trial of some question of fact in a court of justice." ... (1) 7 & 8 Vict. c. 101, s. 2, enacts and such justice of the peace shall thereupon issue his summons to the person alleged to be father of such child, to appear at a petty session....” 8 Vict. c. 10, s. 1, enacts that," where any proceedings have been had or taken before the passing of this Act, or shall hereafter be had or taken in bastardy, under the provisions of 7 & 8 Vict. c. 101, and shall have been set forth according to the forms in the schedule hereunto annexed, or to the like tenor and effect, the same shall be taken respectively to have been and to be valid and sufficient in law. . . . The schedule to this Act contains, with other forms, a form of application by a woman with child. 1871 v. FLETCHER. Webster's Dictionary defines depose, "to give testimony on oath, especially to give testimony which is committed to writing." THE QUEEN So in Tomlin's Law Dictionary, several kinds of depositions are described, but all have to be taken down in writing. And the later Act (8 Vict. c. 10, s. 1), though it is not in express terms incorporated with the earlier Act, shews what kind of deposition upon oath ought to be made. A form is given; and that being so, the whole foundation of the proceedings fails. In this respect the case differs from Reg. v. Berry (1); Reg. v. Smith (2); Reg. v. Shaw (3). In those cases the objection was to the absence of a summons or to some defect in the summons. Here the objection is that there never was any jurisdiction to issue a summons or entertain the case at all. Reg. v. Simmons (4); Reg. v. Millard (5); and Reg. v. Pearce (6), were also referred to. No counsel appeared for the prosecution. BOVILL, C.J. Mr. Bristow has argued this case extremely well, and said all that could be said on behalf of the prisoner; but I think the conviction must be affirmed. The jurisdiction of the magistrates to hear the case depends on 7 & 8 Vict. c. 101, s. 3, which says, on appearance of the person summoned, "the justices in such petty sessions shall hear the evidence of such woman, and such other evidence as she may produce, and shall also hear any evidence tendered by or on behalf of the person alleged to be the father; and if the evidence of the mother be corroborated in some material particular by other testimony, to the satisfaction of the said justices, they may adjudge the man to be the putative father of such bastard child; and they may also, if they see fit, having regard to all the circumstances of the case, proceed to make an order on the putative father" for the payment of money. In this case there was such a hearing of a summons against the prisoner. The prisoner was examined on that hearing, and swore falsely. For that he is indicted for perjury. The objection now taken is (4) Bell C. C. 168; 28 L. J. (M.C.) 86. (1) Bell C. C. 46; 28 L. J. (M.C.) (2) Ante, p. 110. (3) Leigh & Cave C. C. 579; 34 L. J. (M.C.) 169. 183. (5) 1 Dears. & P. C. C. 166; 22 L. J. (M.C.) 108. (6) 3 B. & S. 531; 32 L. J. (M.C.) 75. |