REGINA V. BENJAMIN BARRETT. MANSLAUGHTER.-The indictment charged, that, before and at the time, &c., the prisoner was in the employ of W. S. and others at their colliery, and was then and there employed to superintend and keep in motion the working of an engine at the said colliery, for pumping out the water from the underground workings of the said colliery, and thereby keeping a clear and free course for the passage of atmospheric air through, and the dispersing of foul air and noxious gases, and especially a destructive, &c., gas, called carburetted hydrogen gas, which, in the absence of such free and clear passage of atmospheric air, would accumulate and become of great volume and quantity in the said colliery. It then charged that the prisoner in and upon one J. H. feloniously made an assault, and that the prisoner, on &c., and for two days before, at &c., did feloniously absent himself from the said colliery, and did feloniously neglect and refuse to superintend and keep in motion the working of the said engine, and did thereby feloniously prevent a clear and free course being left for the passage of atmospheric air through the said workings, and did cause foul and noxious gases, and especially carburetted hydrogen gas, to accumulate and increase in the workings of the said colliery; and that the prisoner did feloniously cause and occasion divers large quantities and volumes of carburetted hydrogen and other noxious and inflammable gases, which had accumulated and increased in the said colliery, to surround and be near to and about the said T. H., then and there being a collier employed in the said colliery, and then and there using a lighted candle in the same, and did then and there feloniously cause the said carburetted hydrogen and other gases, by then and there being so feloniously caused to surround and be near to and about the said T. H., then and there instantly and with great violence to become ignited and 1846. REGINA v. BARRETT. explode, and then and there to burn, bruise, and wound him, the said T. H., thereby giving him, on the face &c., divers mortal wounds &c., of which he languished and died. There were two other counts in the indictment, in which many of the allegations contained in the first count were omitted; but each of which laid the same cause of death, and charged it as having occurred in the same way as the first count. The facts of the case, as opened by the counsel for the prosecution, appeared to be as follow:-The deceased had worked in a coal mine, which was at a short distance from an old coal mine which had ceased to be worked; and, between the two mines, there was a passage for the admission of air into the new mine. In the old coal mine there was an engine which was used for the purpose of pumping the water out of that mine, in order that the passage between the two mines might be kept free; and the prisoner, who was an engineer, had been employed to work this engine. The prisoner had absented himself from his duty for three days, during which time the engine did not work; and the consequence of this was, that the water collected in, and prevented the air from circulating through the passage between the two mines, thereby occasioning an accumulation of foul air, as charged in the indictment. While things were in this state, the deceased entered the mine with a lighted candle, whereupon the foul air exploded, and he received the injuries of which he died. Monk, for the prisoner.-These facts, if proved, do not amount to an indictable offence. All that they shew is, that the prisoner was guilty of a breach of a civil contract. The charge in the indictment amounts to no more than a mere non-feasance,-it discloses no act of mis-feasance. But acts of mere non-feasance do not make a man criminally liable, except in cases where he omits to discharge a duty imposed upon him by law, as for example, the duty of a parent to support his child. In all other cases there must be, in order to support a criminal charge, some act done, not the mere omission or neglect to do an act; and he cited Rex v. Green (a), where it was held :—that, to make the captain of a steam-vessel guilty of manslaughter, in causing a person to be drowned by running down a boat, the prosecutor must shew some act done by the captain; and that a mere omission, on his part, to do the whole of his duty, is not sufficient for that purpose. WIGHTMAN, J., was of opinion that the facts as charged did not constitute an indictable offence, observing, that the indictment contained no direct allegation that it was the duty of the prisoner to do that which he was alleged to have neglected to do (b): and, accordingly, The prisoner was acquitted. Brandt and Hulton, for the prosecution. 1846. REGINA v. BARRETT. Monk, for the prisoner. (a) 7 C. & P. 156. Clarke, 7 C. & P. 153; and Re (b) See also Reg. v. Allen and gina v. Haines, post, p. 368. 1847. NORTHERN SPRING CIRCUIT, 1847. BEFORE MR. BARON ALDERSON AND MR. BARON ROLFE. LIVERPOOL ASSIZES. (Civil Side). BEFORE MR. BARON ROLFE. March 25th. WALKER V. MELLON. In indebitatus ASSUMPSIT for goods sold and delivered. Pleas, non assumpsit, and set-off. assumpsit for goods sold and delivered, the defendant cannot shew, under the plea of non assump sit, that at the time of the sale the goods sold did not belong to the vendor, and that they were afterwards reclaimed by the real owner. The facts of the case were as follow:-The defendant had bought a large quantity of bricks from the plaintiff, which, at the time of the purchase, were lying on land on which the plaintiff had liberty to make bricks. Soon after the purchase the defendant removed a considerable portion of the bricks; but before this time he had had the whole quantity counted, and a lock put upon the gate of the field in which they were lying. It was admitted, that the defendant had taken possession of the whole of the bricks under the purchase. Whilst the defendant was removing the bricks, however, a person of the name of Cope laid claim to them under the following circumstances:-Cope had been in the habit of buying bricks from the plaintiff, and of paying for them partly in money and partly in malt. During this course of dealing, Cope had supplied the plaintiff with malt to a greater amount than the value of the bricks which he had had in return; and it appeared, that, by an agreement with the plaintiff's wife, who was his agent in the transaction, the bricks sold by the plaintiff to the defendant had been previously appropriated to Cope in satisfaction of his, Cope's, claim for the malt so supplied by him to the plaintiff; Cope accordingly took possession by force of all the bricks which the defendant had not removed. Under these circumstances, it was contended by Watson and Tomlinson, for the defendant, that the plaintiff was not entitled to recover. In order to support the count "for goods sold and delivered," it must appear, that, by the sale, the vendor actually passed the property in the goods to the vendee. Unless, therefore, it appear that at the time of the sale the vendor had the property in the goods, that count will not be supported, even although there be proof of a delivery of such goods to the vendee. The old form of this count was for "goods of the plaintiff," sold and delivered. And that form was abandoned, merely in order to avoid the difficulties which arose upon it, in cases where actions were brought by principals to recover the price of goods which had been sold by their agents in their own names. The form itself was in accordance with the nature of the contract of sale, which implies that the vendor does in fact transfer a property in the thing sold; but this cannot be done, if, at the time of the sale, such property do not exist in him. If, therefore, it appear, as it does in this case, that at the time of the sale the vendor had no property in the goods sold, this fact is admissible in evidence, under the general issue, to disprove the count for goods sold and delivered. ROLFE, B.-What is your proposition? Is it, that, in every case of an action for goods sold and delivered, the defendant may shew, under the general issue, that, at the time of the sale, the vendor was not the owner of the goods; or is your proposition merely this, that although the goods in question were in fact sold and delivered, yet 1847. WALKER v. MELLON. |