522. ELIZABETH DAY proceedingsdefend This name instance is in set 1388. This set is in the group(s): GarrowsClients . and MARY CARTER proceedingsdefend This name instance is in set 13891540. were indicted for feloniously stealing, on the 10th day of April last, seventy-six yards of silk sarsnet, value 6 l. the property of William Bennett proceedingsvictim , privily in his shop .

FERDINAND SMITH < no role > sworn.

I am shopman to Mr. Bennet, a mercer , in Oxford road , the prisoners came to our shop together about five in the afternoon, on the 10th of April, there were several other customers in the shop at the time, there was my mistress and the apprentice boy besides me; the apprentice served them, I was serving a lady with some black silk mode, they asked for some white Persian, I called the boy out to shew it them, I was called into the other shop, and in the mean time, while I was in the other shop -

Mr. Garrow, Prisoner's Council. Do not tell us what happened when you was absent. - My mistress sent me out to run after them, I went and returned, and this piece of blue sarsnet had come from the weaver's just before; I took it in; I followed the prisoners, I did not stop them, but returned and went out again, and I brought them both out of a hair-dresser's shop; and coming along the passage at the hair-dresser's, the prisoner Carter dropped this piece from under her clothes.

Court. Are you sure the prisoners at the bar are the same persons that came into your shop, and enquired for the sarsnet? - Yes.

Will you positively swear that that roll that dropped from the prisoner Carter was your master's property, and was in the shop when the prisoners came in? - Yes.

What do you know it by? - By the number at the end.

Have you examined the texture of it? - No, I swear by the number.

What did the prisoners say when you charged them? - They could not speak at all.

Court. How far was the hair dresser's from your shop? - About forty yards in the same street, it goes into Oxford-market, I took them into the shop, and sent for a constable, and the young woman said to the old one, see what you have brought me to now, or something of that sort.

When did you first observe that roll to fall from Carter? - It came from under her cloaths, either her cloak, or underneath her petticoats; I believe the young one went back to my mistress, they were taken and committed.

Mr. Garrow. How long might you have been engaged in the stuff shop, after you left the mercer's shop, before you passed these people in the street? - Perhaps ten minutes.

So that what had passed, during that ten minutes, in the other shop, you cannot tell of your own knowledge? - No.

You say Day came back in your absence on some business? - Yes.

Have you ever heard your master give an account of that? - No.

The barber's shop has a passage in common with that house; does not it lead to some other places in common use, some necessaries? - There is a passage that leads to the necessary.

Carter had been at the necessary at the barber's shop? - Yes.

How long might she have been there? - I cannot tell.

Long enough to have thrown down the piece in the necessary, I take it? - She had thrown the paper down the necessary.

How do you know that? - I would not swear any thing but what I know to be true.

Then you know nothing about the paper being in the necessary? - The boy found it.

You say Carter, if she had that piece of Persian in the necessary, had certainly an opportunity to have thrown it down? - I suppose she had.

Had you left it folded up in the same package it came in? - I had taken out the bill of parcels, and tied it up.

It seems very singular, that you should know a piece of Persian, which is very like all other pieces? - I am very sure of it.

Shew me the mark by which you swear to it? - We had not another piece in the shop.

That is true, but other shopkeepers had many; now this mark is made by somebody before it comes to your shop? - By the weaver; I know the number, it is two thousand two hundred and twenty-two.

What does that import? - It is only to distinguish each piece from one another.

Then after the Persian had been sold, the stick would have been applied for whatever purpose you chose to want it? - The stick is generally thrown backwards.

Is not an old roll applied to a new purpose? - Not in our shop.

May there not be an infinite multiplication of these four two's in the mercor's shops in this town; I ask you this upon your oath, without referring to the bill of parcels could you have told me there were four two's upon it? - It is always the case.

Answer my question? - Yes, I could.

Do you swear positively? - I swear that positively, because I had compared them with each other when I opened them.

Whether independent of the bill of parcels you knew there was 2222 upon it? - I could.

You mean to swear that positively? - Yes, I do swear it positively.

Are there any other marks upon the roll? - Only the selvage.

That is common; is there any other mark upon it? - I do not know that there is.

Did not you see the mark? - I did not observe it.

Did not they ask for a petticoat? - Yes, Miss, Day gave my mistress an order for a blue silk petticoat.

Did not she leave two shillings earnest? - Yes, she did, and gave me a false direction.

How do you know that? - I went there, and somebody told me she did not live there.

Mr. Garrow. My Lord, I submit there is nothing to charge the prisoners, and I would not advise them to make any defence, for this man had been absent ten minutes, and the piece might have been sold for any thing he knew; all that this man says is, that it was there, and that he afterwards found it in a barber's shop; how it came there non constat.

Prisoner Day. I am quite innocent.

The prisoner Carter called two witnesses, who gave her a good character.

Court. Gentlemen of the Jury, I think you may lay aside the capital part of this case, this was immediately known; it could not be done so privately but it must have been observed, or what occasion was there for that immediate suspicion; the pursuit commenced immediately: and in this case the apprentice is not brought here, nor the wife; why are they kept back? they might have informed you that they saw it taken, which would have taken away the capital part; therefore, in my apprehension, you may find Carter Guilty < no role > of the taking, but not privately, and you may excuse Day, unless you are confident that she came with the same intention.

The Jury withdrew, and returned with a verdict

ELIZABETH DAY < no role > This name instance is in set 1388. This set is in the group(s): GarrowsClients . , MARY CARTER < no role > This name instance is in set 1389. This set is in the group(s): GarrowsClients . ,

GUILTY Of stealing, but not privately .

Each to be privately whipped , and confined to hard labour twelve months in the House of Correction .

Tried by the first Middlesex Jury before Mr. Baron PERYN < no role > .