Crown Cases Reserved.

[Before POLLOCK, C. B., WIGHTMAN and WILLIAMS, JS., Channell, B., and MELLOR, J.]

REGINA V8. EDWARD GARDNER.

November 15 and 22, 1862.1

One who, in expectation of a reward, withholds from the owner, whom he knows. a lost check received by him from the finder, is not guilty of stealing the check. Case reserved at the Middlesex sessions.

Edward Gardner was tried on an indictment charging him in the first count with stealing one banker's check and valuable security for the payment of 821. 198., and of the value of 821. 198., and one piece of stamped paper of the property of James Goldsmith. In the second count the property was stated to be the property of Thomas Boucher.

It appeared from the evidence of Thomas Boucher, a lad of fourteen, that he found the check in question; that having met the prisoner Gardner, in whose service he had formerly been, he showed it to him; that the prisoner (Thomas Boucher being unable to read) told him it was only an old check of the Royal British Bank; that he wished to show it to a friend, and so kept the check; that Boucher very shortly after on the same day went to prisoner's shop and asked for the check; that the prisoner from time to time made various excuses for not giving up the check, and that Boucher never again saw the check.

It also appeared that the prisoner had an interview with Goldsmith, in which he said that he knew the check was Goldsmith's, asked what reward was offered, and upon being told 58., said he would rather light his pipe with it than take 58.

The check has never been received either by Goldsmith or Boucher, though there was some evidence (not satisfactory) by prisoner's brother of its having been enclosed in an envelope and put under the door of Goldsmith's shop.

The jury found that "the prisoner took the check from Thomas

17 Law Times, N. S. 471.

Boucher in the hopes of getting the reward, and, if that is larceny, we find him guilty."

Thereupon the judge directed a verdict of guilty to be entered, and reserved for the opinion of this Court whether upon the above finding the prisoner was properly convicted.

November 15.-Best (with him Besley), for the prisoner, argued that the finding of the jury disproved the felonious intent. In Reg. vs. York, 3 Cox Crim. Cas. 181, a similar finding of the jury was held to amount to "not guilty." (He was then stopped.)

Kemp, for the prosecution.-The defendant could read, and therefore must have known the owner: Reg. vs. Christopher, 8 Cox Crim. Cas. 91; 28 L. J. 35, M. C.; Reg. vs. Moore, 8 Cox Crim. Cas. 416; 30 L. J. 77, M. C. As against all the world but the true owner, the boy Boucher was the owner, and the prisoner took the check from him against his will, and may be convicted on the second count.

POLLOCK, C. B.-That is the case of Armory vs. Delamirie, 4 Str. 505, where the boy was held entitled to sue the master for a jewel which he had found and his master had taken from him. It was not supposed that the master was guilty of felony. There the jewel was not ear-marked; but every one who can read can tell to whom a check belongs. Properly speaking a check is not a chattel. We must take it that the check was stamped, and being stamped it was not a piece of paper-it was a check.

Cur. adv. vult.

November 22.-POLLOCK, C. B.-In this case the prisoner was convicted of stealing a check. He took the check away from a boy who found it, and did not immediately give information to the owner, but withheld it in the expectation of getting a reward. The taking of the check from the finder was not a felonious taking, and the merely withholding it in the expectation of a reward was Lot larceny.

The rest of the Court concurring,

Conviction quashed.

ABSTRACTS OF RECENT AMERICAN DECISIONS.

SUPREME COURT OF MASSACHUSETTS.1

Specific Performance, when decreed-Statute of Frauds — Compensa. tion where Wife refuses to join in Conveyance.-A bill in equity may be maintained to enforce the specific performance of a written contract for the conveyance of land, although the entire consideration is not named therein, if the plaintiff is willing and ready to pay the whole consideration orally agreed upon by the parties, and he has been guilty of no misconduct. And the bill in such case need not set forth that part of the consideration which was omitted in the written contract: Park vs. Johnson.

If the defendant in a suit in equity for the specific performance of a contract sets up in defence that the contract was obtained from him by misrepresentation, the burden of proof is on him to establish it: Id.

A decree for specific performance of a written contract for an exchange of lands will not be refused on account of the inferior value of the land which the plaintiff agreed to convey to the defendant, where the parties have fixed their own estimate of the value of the respective lands, and there has been no fraud, and the difference in value does not appear to have been unconscionable: Id.

Specific performance of an agreement by a married man to convey land with release of dower and homestead may be enforced, so far as he personally can execute the same, and compensation in damages decreed if his wife refuses to release dower and homestead: Id.

Divorce-Fraudulent Divorce in another State no bar- What Evidence of such Fraud.-It is no defence to a wife's libel for divorce, to prove that a divorce has already been granted in another State on the application of the husband, if it is proved that he was not a citizen of the State in which the divorce was granted, but went there from this Commonwealth, of which he was a citizen, for the purpose of obtaining it, while she remained in Massachusetts, and did obtain it fraudulently. And in such case, the decree of the Court granting the divorce is not conclusive evi dence of his citizenship: Shannon vs. Shannon.

For the purpose of proving that a husband, who has obtained a divore on the ground of desertion, in another State, was not a citizen thereof

1 From Charles Allen, Esq., State Reporter; to be published in the forthcomin volume of his Reports.

but went there from this Commonwealth, of which he was a citizen, for the purpose of obtaining it, while his wife remained here, and did obtain it fraudulently, evidence is competent to prove by records that before leaving this Commonwealth he twice instituted libels for divorce against her which were not sustained, and that he was compelled to pay and did pay the amount of a judgment against him for her board, for a part of the time during which, in his libel on which the divorce was granted, he alleged that she deserted him. And if such evidence is introduced, and other evidence is offered in support of her charges against him, it should be submitted to the jury: Id.

Corporation-What prima facie Evidence of its Existence-How Notes to, may be Indorsed-Evidence in Action by Indorsee.-Proof of the execution of a note to the "Continental Insurance Company" is sufficient, primâ facie, to establish the legal existence of a corporation bearing that name, in an action by an indorsee of the note against the maker: Topping vs. Bickford.

The president of an insurance company may be authorized to make a valid indorsement of its notes, although the charter provides that the company shall have power "to make, execute, and perfect such contracts, bargains, agreements, policies, and other instruments as shall or may be necessary, and as the nature of the case may require; and every such contract, bargain, agreement, policy, or other instrument to be made by said company shall be in writing or in print, and signed by the president and secretary, or by such other officer or officers as the directors may appoint for that purpose." And proof of a formal vote is not neces sary: Id.

It is not necessary for a party who claims title to notes through the indorsement of a foreign corporation, to produce the books of the corporation, if they are out of the Commonwealth; and depositions of late officers of the company are admissible, although, in reply to cross-interrogatories requesting them to do so, they did not annex the records of the company, or copies of them, if the same were not in their custody: Id.

Fulse Pretences—What Indictment must allege.-An indictment for obtaining an exchange of property by false pretences must allege in distinet terms that the defendant delivered to the person who was defrauded the property respecting which the false pretences were made, and that the latter received the same, and delivered other property in exchange there

for, and that he was induced to do so by reason of the false pretences alleged Commonwealth vs. Goddard.

Mutual Insurance-Policy, when void for want of Cash Payment.— A policy of insurance executed and delivered by a mutual insurance company is invalid until the cash premium has been actually paid at the office of the company, if it contains an express stipulation to that effect: Mulrey vs. Shawmut Mutual Fire Insurance Company.

Such stipulation is not complied with or waived by a payment of the premium to an insurance agent through whom the application was made and the policy delivered, if the policy contains an express stipulation that every insurance agent, broker, or other person forwarding applications or receiving premiums is the agent of the applicant, and not of the company; although the company were in the habit of settling a monthly account with him, and he, after the loss, tendered the premiums to them: Id.

It seems, that the officers of a mutual insurance company have no power to waive a stipulation in a policy which has been executed and delivered, that no insurance shall take effect until the cash premium has been actually paid at the office of the company: Id.

Deed-President of Corporation, when not liable on Bond in name of Corporation.-The president of a corporation is not personally liable on a bond in the following form: "Know all men by these presents that the Appleton Mutual Fire Insurance Company, by W. P., president of said company, as principal, and J. M. and S. M. as sureties, are held and firmly bound," &c. "To which payment, well and truly to be made, we do bind ourselves, our heirs, executors, and administrators, and every of them, firmly by these presents. Sealed with our seals." "W. P., President. (Seal.) J. M. (Seal.) S. M. (Seal.)" And an action alleging a joint execution of such bond by the president and the sureties cannot be maintained: Ellis vs. Pulsifer.

Criminal Law-Evidence and Charge in Capital Case.-No exception lies to a decision of this Court, in a capital trial, excluding additional evidence offered in defence after the closing argument for the prisoner has been finished, and that for the Commonwealth has been begun: Commonwealth vs. Dower.

Although the testimony of a prisoner charged with murder was taken in writing before the coroner's jury, her oral confessions at other times are competent evidence: Id.