226. JOHN HENRY AIKLES proceedingsdefend This name instance is in set 44221545. was indicted for feloniously stealing, on the 31st of December last, one bill of Exchange, dated the 30th of December, 1783, value 100 l. drawn by Samuel Edwards < no role > , and directed to Richard Wells < no role > , by the description of R. Wells, No. 11, Cornhill, London, whereby the said Samuel Edwards < no role > required the said Richard Wells < no role > to pay to the order of him the said Samuel Edwards < no role > , two months after the date thereof, 100 l. and which said bill of exchange was indorsed by the said Samuel Edwards < no role > , the said bill of exchange being the property of the said Samuel Edwards proceedingsvictim ; and the said sum of 100 l. being then due and unsatisfied to the said Samuel Edwards < no role > , the proprietor thereof, against the form of the statute .

The prisoner alledging that he was a Hessian, a Jury were sworn, one half of whom were Hessians, viz.

William Halfpenny proceedingsjury

Frederick Lange proceedingsjury

James White proceedingsjury

George Klugh proceedingsjury

William Newman proceedingsjury

John Dippell proceedingsjury

John Scott proceedingsjury

James Tregent proceedingsjury

John Page proceedingsjury

Daniel Tolkeon proceedingsjury

William Bailey proceedingsjury

Charles Klught proceedingsjury

COUNCIL FOR THE PROSECUTION,

Mr. GARROW.

COUNCIL FOR THE PRISONER,

Mr. SYLVESTER and Mr. FIELDING.

Mr. Garrow, of Council for the Prosecution, opened the Case as follows:

Gentlemen of the Jury,

You have collected from the appearance of the Gentleman at the bar, and the combination of ability and experience by which he is defended, that he is not one of those petty offenders whose minute offences occupy much of your time in this place. The delinquency of Mr. Aikles is of a much greater extent, and wears a bolster aspect, You have learnt, Gentlemen, from the indictment, what is the nature of the charge imputed to the prisoner, but it will be necessary for the better understanding the subject of this enquiry, that I should state to you what the situation of Mr. Aikles has been, and what his connection with the prosecutor. Mr. Aikles is one of those virtuous and benevolent men, who have discovered the secret of acquiring large fortunes, and of supporting elegant houses and superb equipages by acts of the parent philanthropy, and the most disinterested and enlarged benevolence: in a word, he is one of those, who advertise to supply the necessities of young men, whose indiscretions have reduced them to want a temporary supply of money, for the laudable purpose of extricating them from the hands of others, who might impose on them to their ruin, and all this for the fair legal discount on their notes. In this character Mr. Aikles addressed himself to the prosecutor Mr. Edwards, who is a very young man, of some fortune, and who therefore appeared to Mr. Aikles to be a very fit subject for his friendship and protection. The prisoner waited on Mr. Edwards, and told him that if in the present great scarcity of money he should be under any embarrassment, he would relieve him; in consequence of this intimation from the prisoner, the transaction which forms the subject of this enquiry took place. Gentlemen, I shall now proceed to state the facts which I shall submit to you in evidence, which I shall do with some particularity, as it will be necessary for the Court to attend to them. and to determine on the law resulting from those facts. And, Gentlemen, I am very much relieved in stating to you my imperfect notions of the law of the case, by feeling that I do it in the hearing of Judges eminent for their learning and integrity, under whose correction it is impossible that I should lead you into error. Unless my instructions mislead me most grossly as to the facts, and unless my conception of the law is utterly unfounded, I expect with confidence that the learned judges will tell you, that there is a current of decisions, deriving its source at a very early period, and running down uninterruptedly to this day, that will warrant you in point of law to pronounce the prisoner guilty of the felony imputed to him.

Gentlemen, in the latter end of the month of December last, about the last day but one of the year, Mr. Edwards, in consequence of the very friendly intimation which he had received from the prisoner, applied to him to discount him a note for one hundred pounds, which Mr. Aikles agreed to do, on being paid the very moderate compensation of two and a half per cent. in consequence of this agreement, Mr. Edwards a bill on his guardian Mr. Wells, payable to his own order; the bill was accepted by Mr. Wells, and indorsed by Mr. Edwards. Mr. Aikles went to Cornhill, and having satisfied himself that the acceptance was genuine, Mr. Edwards expected to be paid the value of his bill, and for that purpose delivered it to the prisoner; but to his surprise he found that Mr. Aikles was not in cash (an accident which very generally attends these sort of transactions) it was therefore necessary for him to go to his apartments in Pulteney Street to get the money, and he proposed that Mr. Edwards or his friend should go with him to receive it; to this proposal Mr. Edwards found himself under the necessity of submitting; but having by this time adopted a suspicion that his bill was in hands not the most secure, he had the precaution to give express directions to Mr. Croxall to go with the prisoner, and by no means to part with him or to lose sight of him till he received the money; Mr. Croxall having received these directions, went with the prisoner to his apartment; here Mr. Aikles told him,

"I have not the money in the house, I must trouble you to wait ten minutes till I go and fetch it;" this was opposed by Mr. Croxall, who told him he expected the money, and did not chuse to part with him till he received it; the prisoner assured him on his honour, that he would not detain him above a quarter of an hour, but on Croxall still resisting his leaving the house, Mr. Aikles assumed all the importance and affected the feelings of a man of fashion and nice honour, complained of being distrusted, and told Mr. Croxall that Mr. Edwards would not have treated him so unworthily: the prisoner left his house, and the witness, Mr. Croxall, having waited there till his patience was exhausted, went out in hopes of finding him, but without success; he met however with Mr. Edwards, who, impatient of so long a delay, was come to enquire for his money, they returned together to the house of the prisoner, where they continued three days and nights, during all which time Mr. Aikles never returned; many other persons indeed came to enquire for him by all the names which he used in his numerous transactions; but Mr. Edwards seeing no probability of recovering his note, or of receiving its value, applied to a magistrate, who very properly sent the prisoner here to abide the event of your investigation of his conduct.

Gentlemen, all that it will be necessary for me to adduce evidence before you to prove in support of this prosecution will be these short facts; first, that Mr. Edwards made the bill in question; that he delivered it to Mr. Aikles for the express purpose of discounting it, and returning him the cash by Mr. Croxall, and then the Court will tell you, that in point of law, if the prisoner afterwards embezzled the note so entrusted to him for his special purpose, or converted it to his own use, he is guilty of the felony, with the commission of which he is charged. You will expect, from the ingenuity of my learned friends who appear as Council for the prisoner, that every objection will be taken that the case will in any degree warrant; but unless I am grossly mistaken, the facts will come out in evidence as I have stated them to you; and I assure myself, that having heard those facts, if the directions of the Court shall warrant you to say, that under the law of the case the prisoner may be guilty of the crime imputed to him by the indictment, you will feel great pleasure that it has become your duty to diminish, by one at least, a nest of vermin, who have but too long infested this metropolis, to the utter ruin of some of the first families in the kingdom.

SAMUEL EDWARDS < no role > , Esq; sworn.

Mr. Sylvester, one of the Prisoner's Council. Do you mean to pay this note when it becomes due? - If I am obliged to pay it, not otherwise; if I can possibly avoid the paying it, I shall not think myself bound to pay it; I do not understand law, but if the law tells me I must pay it, I shall.

Examined by Mr. Garrow.

Where do you live? - When I am in town I lodge with Mr. Wells, on whom this note was drawn, who is my uncle, and was my guardian before I came of age.

Mr. Sylvester. Let the witnesses go out of Court.

Mr. Garrow. What was the way you first became acquainted with the prisoner at the bar? - My first acquaintance with the prisoner at the bar was, he left his address about three weeks ago at my lodgings; his address was,

"Mr. H. No. 21, Great Pultney-street, from six to seven in the evening, or from eleven till twelve in the morning."

Court. Did you know him before? - Never; I enquired of the servant with whom he had left it, it was the most mysterious thing I ever met with at that time; in consequence of this address being left, I called the next morning before twelve, at No. 21, in Great Pultney-street, where I saw the prisoner at the bar, and as his face was perfectly strange to me, I asked him if he had left such an address at No. 11, in Cornhill, where I lodge, he said he had, and he supposed my name was Edwards; I said it was; he then said he had heard that I wanted a note discounted; which I was very much astonished at indeed; I could not conceive how he came to know it.

Court. Had you in fact wanted a note discounted? - I had a few days before.

Had you sent any message to Mr. Aikles? - I had not; he said if at any time I wanted a note discounted, if it was drawn on a person of credit and responsibility, that he would discount it at any time, on the most eligible terms, which terms he then mentioned to me, which were two and a half per cent. agency, and the legal interest; in consequence of this, on the 30th of December last, I called at his house in the evening, and he was out.

Mr. Garrow. When was the first interview? - I suppose it was about a week before that time; on the 31st of December I sent one Mr. Croxall to know if he would discount me a note of one hundred pounds, mentioning the gentleman on whom it was drawn, and if he would do it, if it was convenient for him to come into the city, he might be convinced that it was good, by applying to Mr. Wells the acceptor; the prisoner came with Croxall, in consequence of the message I had sent by Croxall, on Wednesday the 31st; I begged Mr. Wells would step into the room; the prisoner was introduced to me by Mr. Croxall; I then asked him what he would discount my note for, provided he approved of it; he said for twenty-five shillings, which he had reckoned was two and a half per cent. for his agency, it was for two months, and five per cent. legal interest; I referred him to Mr. Wells, to know if it was his acceptance, he said it was, and immediately Mr. Wells left the room; the prisoner then said if I would go up with him to the west end of the town, to Pulteney-street, he would give me the cash; I said that Mr. Croxall would accompany him, and pay him twenty-five shillings on his receiving the one hundred pounds; I had delivered the note to Mr. Aikles on his applying to Mr. Wells to know whether it was a good one; Mr. Croxall left me to go with the prisoner, and as he went out, I whispered him that he would not leave the prisoner without the money, and that he would not lose sight of him.

Did Mr. Croxall return with the money? - No, Sir.

You expected him of course? - I was to go to prevent Croxall coming; I was to meet him and receive the money; I went to Pulteney-street, in my way I met Croxall; I afterwards returned to the house of the prisoner, he had been gone out about five minutes, and I waited there for three days and three nights, and the prisoner never returned; I am confident of it for three days.

Mr. Garrow. Whilst you was there the prisoner never returned? - No.

Have you ever seen the hand writing of Mr. Aickles? - Yes, I have it now in my pocket.

Did you ever whilst you was at his house receive any letter from Mr. Aikles, that you know to be his hand writing?

Mr. Sylvester. I object to that; did you ever see him write?

Mr. Garrow. Then I will repeat the question; did you ever receive any letter from him that you believe to be his hand writing? - I can only tell by comparison.

Court. Do you believe it to be his hand writing? - I have reason to believe to the contrary, that it was not his hand writing, that he sent to me by way of letter; I saw him afterwards on the Saturday when I went with the constable to apprehend him, he was at the house of a lady, where he had dined, in Margaret-street.

Did any thing pass between you and the prisoner concerning this note when you apprehended him? - Yes, he said he was very sorry, he made many apologies, and said he would fetch me the note.

I believe you did not trust him to fetch the note? - No, but I went by his particular desire to Norfolk street, I cannot tell the house; nothing material passed, only that he wished to send for some person; I thought he should go before a justice; he said when I went to the house in Norfolk-street, I should receive my note; it was made payable to my order, indorsed by me; I saw it yesterday; I saw it two days ago in the possession of Smith and Turner; I have subpoened them, they said they should keep it till the matter was settled.

Mr. Fielding, another of the Prisoner's Council. Are they here? - I do not know.

Mr. Garrow. It is found in the hands of those to whom it has been either delivered by negociation or otherwise.

Mr. Fielding. The Gentleman has seen it in the custody of men free from all suspicion, Smith and Turner live opposite the Pantheon in Oxford-road.

Edwards. I have demanded my note on Saturday several times, and it has not been delivered to me; he offered it to me on Saturday se'nnight, when I took him, if I would give him twenty pounds.

Court. Did he know where it was? - Yes, last Saturday night.

Mr. Sylvester to Mr. Edwards. This note was a note drawn by you on your uncle? - Yes.

What you call an accommodation note? - It was not.

There was money due between you? - There was, and is now.

Was this note ever in the possession of Croxall? - Never.

Did not you apply to him by advertisement? - No.

Now on the 30th of December you applied to him to get a note discounted? - Yes.

He was to have agency for his trouble, and the usual discount of five per cent.? - Yes.

If the money had been brought you would have been satisfied? - I should have been well satisfied.

So much so that you thought it was only a fraud at first, till somebody put it into your head it was a felony? - I beg your pardon, I should have been guilty of a rash act if I had met the prisoner.

You advertised it as a note that was lost? Yes.

What was he committed for? - I do not know.

I will read you the commitment, (reads)

"Committed on suspicion of having committed divers frauds, and being a common cheat." - That I know nothing of.

You do not know that? - Indeed I do not.

Why, was you not examined before the magistrate? - Yes.

(Reads)

"Charged before us by the oath of Samuel Edwards < no role > ," that is your name, is not it? - The bill of indictment was the first I ever heard.

Ever heard, why how long was that before he was committed; what was he committed for? - These are things I cannot answer; I can only say I brought him before Sir Sampson Wright, and he was committed. I offered five guineas reward, and the payment was stopped.

You did not suppose then that it was a felony, because that would have been compounding felony you know? - I considered that he he had run away w ith my note, but whether that was compounding felony or no I do not know.

Had Mr. Aikles then, when he came to your house to enquire about the goodness of the note, had he the note delivered to him by you? - He had.

Then having the note in his hand, and the full possession of the note, he asked your uncle whether it was his acceptance? - He did.

How came you to whisper Coxall? - I generally speak openly; I speak openly now; I did it out of delicacy.

You have had a little conversation about this note? - I have had a great deal.

Did Mr. Aikles offer to settle the matter? - He said he had settled it on my first seeing him, on the Saturday evening; when I had him at Bow-street, he then sent a man to me.

Upon your bath, did not you intrust him with this note for the purpose of getting the money? - Expecting the money immediately back again certainly, I could have no other purpose.

Mr. Garrow. I think you told me that the purpose for which you gave this note to Mr. Aikles was to discount it? - It was.

Mr. Sylvester. Was it to discount it, or to get it discounted? - To discount it.

Mr. Garrow. Did you or not understand that he was the monied man that was to discount it? - He told me himself that he belonged to the bank, and that he would immediately give the money on the arrival of Mr. Croxall at his house; he described himself to belong to the bank; he said, that he was to have two and a half per cent. agency for the business, and I conceived him to belong to the bank, he told me, he would give me the money at his own house.

RICHARD WELLS < no role > sworn.

I live in Cornhill; I am guardian to the prosecutor; I saw the prisoner; he asked me if the acceptance of the one hundred pounds note was my hand writing, it was drawn by Samuel Edwards < no role > , payable to the order of Mr. Edwards for one hundred pounds, it was the 30th of December, and at two months date.

Did Mr. Aikles explain to you the purpose of his application? - I do not think he did the least in the world, I am sure he did not; he had the note in his hand at my house; Mr. Edwards was present in my parlour, and he asked me if that was my acceptance; I told him it was; I left the room, and left Mr. Edwards, and the prisoner, and Croxall, to transact the business.

Mr. Fielding. When he asked you the question he had the note in his possession? - Yes.

And the prosecutor was satisfied with that? - He seemed to be very well satisfied.

Court. What age is the prosecutor? - Twenty-seven.

JOHN CROXALL < no role > sworn.

Mr. Garrow. You are acquainted with Mr. Edwards? - Yes.

Do you recollect at any time seeing the prisoner with Mr. Edwards? - Yes, on the 31st of December.

Where did you see them? - At Mr. Wells's, No. 11, Cornhill; I was with Mr. Edwards when the prisoner came; he said he came there with intent to discount a note of one hundred pounds for Mr. Edwards; I had previously made application to the prisoner in the morning when I called at his lodgings; I applied to the prisoner by desire of Mr. Edwards; it was on the 31st of December, at his lodgings, No. 21, Great Pulteney-street, where I saw him.

Court. What did you apply to him for? - I told him I came from Mr. Edwards; Mr. Edwards wished to know when he would let him have one hundred pounds at two months.

Mr. Garrow. Did you go to him to ask if he would let Mr. Edwards have one hundred pounds for his note? - Yes, I told the prisoner I was come from Mr. Edwards, and he would be glad to know what time he would let him have the money that they were talking about for a note; the prisoner said, when I saw Mr. Edwards last, I told him, that if he would let me have his note for half an hour I would get him the money, and he likewise said, that if he would come or send any person with the note, they might wait in the parlour while he fetched the money; I then asked the prisoner what time would be most agreeable to meet Mr. Edwards, he told me twelve o'clock in Cornhill, No. 11, I returned to Cornhill, and was in the room when the prisoner entered; Mr. Edwards then produced the note to the prisoner, and asked him what he was to give for the discounting it; the prisoner said, seven and a half per cent. which was five and twenty shillings, two and a half above the common interest; Mr. Edwards said it was a great deal of money, could not he abate any thing of it; he said, no, not for so trifling a sum as one hundred pounds; after that Mr. Wells came into the room; the prisoner went up to Mr. Wells and said, pray Sir is this your acceptance? Mr. Wells said, yes, it was his acceptance, then the prisoner turned round to Mr. Edwards and me and said, now gentlemen, if you are ready, we will go to my house, or my apartments, and we will get you the money; I said to Mr. Edwards, Sir, you had better go along with us, he said, no, Mr. Croxall, you go along with the gentleman, and I will be there by half an hour after one o'clock; I said, I wish you would be there about one o'clock because I have other business; he said he would; I went with the prisoner immediately, he called a coach to his lodgings, in Great Pulteney-street, No. 21.

Mr. Garrow, What was the purpose of your going with the prisoner? - To receive the money; in going along, the prisoner told me he had discounted many notes for gentlemen, and had found money for several to a great amount; I said to him, pray Sir, how far have you got to go for this money from the house where you lodge, he said about three streets off; when we came into the prisoner's parlour he asked me to sit down, and he went backwards; he came in directly and said, pray Mr. Croxall be seated; I shall be back in a quarter of an hour; I will laid you the paper to read: I was not satisfy with his going out; I was determined to keep sight of him, and watch his going in and coming out.

Mr. Garrow. Did you object to his going out? - I hesitated rather about it, but he told me, that Mr. Edwards was either to come there or send somebody to stay in the parlour while he went for the money; in turning the corner of Great Pulteney-street, going into Brewer-street, I lost sight of him in a moment; I walked backwards and forwards and Mr. Edwards came up; I afterwards returned to the prisoner's house; I did not find him there; I continued there sometime; I went away; and left Mr. Edwards; while I went away, and when I returned, I found him there, and I staid till half after nine; the prisoner did not return back; I found Mr. Edwards in the parlour where I left him; I was there the next morning before eight o'clock and continued till Mr. Edwards came to me; we breakfasted in the house the next morning; we continued there the whole of the next day; I went out, and Mr. Edwards was there while I went out, the prisoner did not return; I did not continue there long the third day, but I watched for him at a publick house; I did not see him go to his house.

Did he at any time pay you the money, or any part of it for this one hundred pounds note? - No, Sir.

Nor deliver you the note back? - No.

Was you present when he was apprehended? - No.

Mr. Sylvester. You went to receive the money? - Yes.

He was to return in a quarter of an hour? - Yes.

You never had the note in your possession? - No.

You only went for the money? - No.

Did you watch during the night time? - No.

Whether he came home at night you do not know of your knowledge? - No.

It was understood by all of you, that he was to return in a quarter of an hour? - Yes.

Walter Smith < no role > and William Turner < no role > called on their subpoenas.

Mr. Garrow. My Lord, I submit to the Court, that as he has sworn that he subpoened these people, and they are not come, that the Court will be so good as to send for them.

Mr. Justice Ashurst. Let a messenger go for them.

Mr. Catchpole the Marshalman returned, and brought word that they had been waiting at the Court all day.

Court. Call them again.

Walter Smith < no role > and William Turner < no role > called again but did not appear.

Mr. Garrow. My Lord, it is proved, that these people have been subpoened, and have been again sent to by order of the Court, and do not appear, therefore I submit to your Lordship whether I may not give parol evidence of this note, it being found as every other note is, which is the subject of a prosecution for felony, in some other hands; it is no longer in the hands or power of the prosecutor, therefore submit it is competent to the prosecutor to shew where he saw it last; if notes are lost that are put into the post, and are never found again, there must of necessity be parol evidence given of them or no evidence at all, since, like the present, they are not in the power of the prosecutor.

Mr. Fielding. My Lord, I submit to your Lordship, that these men ought to come forward; it is proved that this note is in existence, and ought to have been brought here; and it therefore furnishes that leading idea in every case, that the note ought to be produced which is in existence, and is the best degree of evidence; if the note was lost, then indeed it would be a question with the Court, whether you would receive parol evidence.

Mr. Sylvester. I take it there is not a clearer principle in law that you cannot give parol evidence of a note that does exist: it was the duty of the prosecutor to apply to the Court, and to see before the Court was called on, whether his witnesses did or did not attend. No application was made till about the middle of the trial, when it is found out that they cannot proceed without the evidence of these people, then an order of Court is applied for; I believe it would be very unprecedented to give evidence of any part of this note, unless the note was here present to be produced to your Lordship, and I am sure your Lordship will not go out of the common road of evidence.

Mr. Fielding. They might have got the note here.

Mr. Justice Heath. I do not think it is so universal a principle of law as to have no exception, for where prisoners are indicted for stealing a note, it is not necessary to shew that that note is in existence, or to account for its coming into the hands of the prisoner, in such a case there could have been at doubt at all, but parol evidence could have been given, and the note being in the hands of this Smith and Turner in a state of negotiation; makes no difference; I think they stand in the place of the prisoner, their possession is precisely the possession of the prisoner.

Mr. Sylvester. If it had gone the length that the prisoner had negotiated it.

Mr. Justice Heath. I shall certainly save the point for the opinion of the Justice.

Mr. Sylvester. In this case the prisoner was intrusted with this note to get it discounted.

Court. No not to get it discounted, but to discount it; you assume that.

Mr. Sylvester. My Lord, I contend the prisoner had the free power of this note, the dominion, the possession, to part with to any body whatever that he pleased; If I send my clerk to a banker's with a note, if he goes off with the note it is felony, but if he goes to the banker's and gets the money it is a breach of trust; where there is only a custody of the thing itself, and no power or dominion over it; disposing of it is illegal and felonious; but where there is a power of disposing of it, it is not; here I can see a clear fraud; give me your note and I will get it discounted; this is a common fraud, a common trick, it is too common, but nobody I believe had an idea at this time that it was a felony: my Lord, I do not know where to draw the line; I should be glad to know where the felony begins, because the possession of it is no felony; he is intrusted with it; there is no felony in carrying it home; and he passes it to a person to get it discounted.

Mr. Justice Heath. You mistake the fact and then you argue upon it; you argue upon wrong facts: Mr. Edwards and Croxall both say, that this man was to discount this note for a price, for Croxall says, that Edwards produced the note to the prisoner and asked him what he was to give him for discounting it, and he said two and a half, and the prisoner said, if Mr. Edwards sent any body to his lodgings they might wait in his parlour till he sent for the money.

Mr. Fielding. My lord, upon these facts I beg leave to follow my learned friend in this idea as a matter of law growing out of the fact; as to the definition of a larceny, I understand from Lord Coke and others, that the taking must be from the possession of a man, and not of the property when removed from the possession; if possession be obtained by the person without the ingredients of felony, it then becomes such a subject as cannot support the allegation of larceny; here there is, in my conception, a clear possession, and such a possession as removes the property clearly out of the hands of Edwards, if so then upon that subject, clearly cannot be built the definition of larceny.

Court. I conceive there is some difference as to the change of property, if this man had kept the note, would it have been a felony in him to have kept possession of the note, certainly not; then he alters this thing and he changes it into money; Edwards expects the money; he does not get the money; he never expects to have the note back again; the matter strikes me as not to be rendered a bit more plain by any thing that can be said.

Mr. Garrow. My Lord, I should leave this case with the utmost pleasure to the Court, but that all arguments of this sort are addressed to the Jury, and are intended to have their operation there, it therefore becomes my duty to trouble your Lordship with a very few words by way of reply. My Lord, I am not at all disposed to controvert the position of my learned friend, Mr. Fielding, as to the definition of larceny, I am ready to admit that there must be a felonious taking from the possession of the proprietor, and on that ground I am perfectly contented to argue this case, for I am warranted by a long uninterrupted series of decisions to say, that this, to the hour of the conversion, was the possession not of the prisoner but of Mr. Edwards. The case which we are now arguing, is precisely like the case of a man who goes to Smithfield Market and cheapens a horse, the owner delivers him the horse for the purpose of trying his paces, and the stranger rides away with the horse; if I was to address myself to the common understanding of any man who hears me, and was to ask in whom the possession in the horse resided, he would answer, that the actual possession of the owner was determined by his delivery to the stranger; but the law has said, that this possession having been acquired with a felonious intent, shall not alter the possession in contemplation of law, but that such a taking is a felony. What was the case of Sharpless at this place about nine years ago? It was the fashionable trick of that day (for every period has its fashions in artifice) to go to a goldsmith's and to order a quantity of his goods to be sent home; and it was the caution of the day for the goldsmith to direct his servant not to leave the goods without the money, but on some pretence Sharpless sent back the servant and kept the goods, and the Judges held that this was felony, though it would be difficult to prove that the goldsmith had any actual possession of his goods after they were delivered by his servant to the stranger. This case seems to me to be perfectly in point, but the same principle is, if possible, more strongly recognized in two cases, decided very recently; first, in the case of the ring dropper, where a man drops a ring or purse, and on pretence of dividing its produce with some bystander; he delivers the thing found, and takes as a security for his proportion a watch or a cloak, which he converts to his own use; here your Lordship sees there is something given for the thing stolen; your Lordships have repeatedly held that this is felony, and yet no man will say, that after the watch or cloak are delivered they remain any longer in the actual possession of the owner. I have had the honour of stating to your Lordships one case of horse-stealing, there is another, which has received a solemn determination of all the Judges of England within a very short time, which is conclusive of this case. A man hires a horse on pretence of taking a journey into Essex, in point of fact, he never takes such a journey but sells the horse; this has been determined to be felony: but, my Lords, I feel that I have troubled your Lordships with more cases than it was necessary to have cited in support of a position so clear, I shall therefore conclude with stating one very recently determined, and which, if it stood alone, might serve as an answer to the objection of my friend Mr. Fielding. A man goes to a publick house and orders a pot of beer and change for a guinea to be sent to the house of Mr. Stiles, and when it is brought, he sends the servant back on some pretence, takes the change and goes off; permit me to ask whether the publican who remained in the bar of his house, had any more control over, or possession of his money, than any man who hears me; and yet your Lordships have held, and held with great wisdom, that this taking is a felony: but Mr. Silvester asks, When did the felony commence? I answer precisely at the same period of time, at which it commenced in the cases which I have had the honor of submitting to the Court; in the case of the horse-stealer, it commenced at the instant in which he put his foot into the stirrup with an intent to steal the horse; so here the felony commenced at the instant in which the prisoner got the note into his hands, with a felonious intent to convert it to his own use. If your Lordships feel yourselves mature by the decision of to-night to batter down the authority of all these cases established on mature consideration by the wisdom of your predecessors, and so often fortified and confirmed by the concurrent wisdom of your Lordships: if you are, prepared to say that the strong principle which so uniformly runs through all these cases is no law then your Lordship must direct the Jury to acquit the prisoner: but if your Lordships feel yourselves bound to act in unison with these determinations, it seems to me that your Lordship has no alternative but to direct the Jury to find the prisoner guilty.

Court. If by any fraudulent means or contrivance, the party gets the possession of goods into his hands with intention to steal them, and undoubtedly the party whose property they are never meant to part with them in that way, therefore it becomes a felony; I shall therefore sum up to the Jury, and I shall afterwards take the opinion of the Judges upon it.

The learned Judge then summed up the evidence to the Jury as before recited, and added as follows.

Gentlemen of the Jury, first as to the law respecting this case, I must tell you that as at present advised, my idea of the law is this that under the authority of the cases which have been so ably cited by the learned council for the prosecution, if the prisoner got this note into his possession with a preconcerted design to steal it, that is a felony, though in fact it was delivered to him, especially if you should be of opinion that it never was the intention of Edwards to part with the possession, but that be or Croxall should be present till the money was actually paid; the possession of the thing in law does not mean the bodily apprehension of the thing, the holding it and taking it: if it was given to him with the special purpose of his discounting it, and that Croxall was sent with the prisoner as an agent of the prosecutor, and that the other ran away with this note in order to defraud him; why then it will amount to a felony, and what is the evidence that he did so? why you will find from Edwards's evidence, that he undertook to give him cash, and then Edwards said Croxall should accompany him and pay the twenty-five shillings; so that you see the first proposal on behalf of the prisoner was, that Croxall should go with him and he would give him the cash, which is contrary to the defence, which is, that Edwards intrusted him with this note to get it discounted, for he was to discount it himself for a stipulated sum, and Croxall tells you, that the prisoner said, when he saw the prosecutor, if he would let him have the note for half an hour he would give him the money; then Croxall is sent with the prison er, and the proposal was, that he is not to go out of his house, but he was to be in the parlour till he sent for the money; therefore it was the idea of Edwards and Croxall, and the prisoner's proposal, that this note should never be out of his possession, and his going away with it, and staying away from his lodgings three days and three nights is a very considerable circumstance; then when they went to the house in Norfolk-street, there were several shuffling excuses; the question therefore is, whether you think it was ever the intention of the prosecutor to let this note be out of his possession till he got the one hundred pounds; if you think it was not, you will find the prisoner guilty, otherwise you will acquit him.

GUILTY. [See summary of punishments.]

Court to Jury. You find that he took it with a preconcerted design? - Yes, and that he undertook to discount it.

Are you of opinion that Edwards the prosecutor intended to leave the note in the prisoner's possession without the money? - No, not without the money.

The two questions then are, whether the prisoner had not a preconcerted design to get this note into his possession, with intention to steal it.

Jury. Certainly?

Court. And whether the prosecutor intended to part with that note to the prisoner without having the money paid before he parted with it?

Jury. No.

Tried by the second Middlesex Jury before Mr. Justice HEATH.