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STAFFORD- Platt, B.--The authority cited is somewhat obsolete, and, SHIRE GRAND although it is necessary that twelve of the grand jury must agree
*** to find a bill, I see no reason why the number should necessarily Practice- be limited to twenty-three. Grand Jury. The two jurors were then added to the number, and sworn,
making the total number of the panel twenty-five.
[It is submitted that this dictum of the learned judge cannot be considered as a correct one. His lordship, probably, would not bave allowed the addition to be made if his attention had been called to the case of Rex v. Marsh (6 Ad. & Ell. 236), where it was expressly ruled by the Court of Queen's Bench, that a grand jury must not consist of more than twenty-three, The authorities cited in that case were Co. Litt. 126, b.; 2 Hale's P. C. 154 ; 4 Hawk. P. C. 1, Book 2, c. 25; 4 Bac. Abr. 295, tit. “Indictment;" 4 Bla. Com. 302. The last-mentioned text writer states that the number is limited to twenty-three, in order that twelve may be a majority. In the principal case (Rex v. March, supra), Lord Denman, C. J., said, “The court has no doubt that twenty-three is the limited number. It is a matter of practice proved by authorities in the only way in which proof can be given of a point of that kind which has been undisputed."-J. E. D.]
Hereford, March 24, 1849.
REG. v. HANKINS.(a)
Evidence Documents in the hands of a prisoner's attorney-Lien
Notice to produce.
documents from a client in a professional character from producing them
before the trial, but after the commencement of the assizes, is sufficient to
1 alleged to have been committed on the trial of an action in the county Court, held at Ross, on the 16th of September, 1848, upon which trial the defendant Hankins (who was plaintiff in the action) swore that an account which he produced, written in ink, signed by William Dickens, the defendant in the action, was in the same state then as when it was so signed. The perjury assigned being, that when it was signed by Dickens it was in fact not in the same state, but in pencil.
(a) Reported by J. E. Davis, Esq., Barrister-at-Law.
pace viden Rensseld by L been se
Mr. Minett, an attorney and solicitor, was called as a witness on REG. the part of the prosecution. He stated that on the trial of the
HANKINS. action in the County Court he was the attorney of Hankins; that he now had in his possession two papers produced by Hankins on Evidencethat occasion, one being the account in question ; that he received Attorney's
-Notice to them from Hankins as his attorney and solicitor ; that in October
produce. he ceased to act as Hankins's solicitor; that he retained the papers and claimed a lien upon them for professional services ; that an execution for the amount of his bill had been issued against Hankins a few days before the assizes; that no return had been made of the result of that process; that if it did not satisfy the amount he still claimed a lien upon the papers. He had been served with a subpoena to produce them on the trial of this indictment, and was ready to do so. Upon this evidence.
Skinner and Gray, for the prosecution, proposed to have the account put in and read.
Godson, Q.C. (with whom was W. H. Cooke), for the defendant, objected to the reception of the document in evidence, on the ground that Mr. Minett, having received it in his professional capacity from the defendant, ought not to be permitted to produce it in evidence against him. Rex v. Dickson (3 Burr. 1687), cited in Greaves' Russell on Crimes, vol. 2, p. 908, was in point. In that case it was held by Lord Mansfield and the rest of the court, that an attorney who had been served with a subpæna duces tecum out of the Crown Office to produce certain vouchers which his client, a Mr. Peach, had exhibited and relied on before a Master in Chancery, and which subpæna had been served on the attorney in order to found a prosecution for forgery against his client, was not bound to produce these required vouchers. In Archbold's Pleadings and Evidence in Criminal Cases, by Jervis, 10th edit. p. 148, the general rule is thus laid down :-“Counsel, solicitors, and attorneys, are privileged from giving (indeed, they will not be permitted to give) evidence of any matters confided to them by their clients in their professional capacity, either in the cause respecting which the communication was made, or in any other; and whether the client be a party to the cause or not; or whether the business on which the attorney was retained had reference to legal proceedings, either existing or in contemplation, or not. So an attorney is not bound, on a subpoena duces tecum, to produce any deeds or papers belonging to his client in his custody, if it appear that the production will operate to the prejudice of his client."
Skinner and Gray, for the prosecution, submitted that the rule did not apply to cases where the document sought to be put in evidence was the foundation of the charge against a prisoner. (a) In this case, if the document had been found upon the defendant when in custody, it might and would have been given in evidence against him; how, then, could he prevent his solicitor from pro
(a) See Reg v. Avery (8 C. & P. 596), and remarks upon that case, 1 Phill. Evid. 171.
ducing it who was willing to do so ? Here, however, the document
was out of the control of the defendant. Mr. Minett had a lien HANKINS.
uponit; he therefore had the possession and the right of possession. Evidence- and the defendant was divested of his possession and control over Attorney's lien the document. - Notice to
COLTMAN, J.—The defendant has an interest in the paper notwithstanding. I reserved a case on this point as to whether the rule in question applies to a document which is the subject-matter of a criminal charge, on the Norfolk circuit last year, but it finally went off without a decision being given. I think I cannot receive the evidence. Perhaps secondary evidence can be given which will avoid the difficulty.
Service of a notice to produce the account was then proved. The notice was served at one o'clock on the day before the trial, being the day after the commission day of the assizes at Hereford. It was served at Hereford upon Mr. Edwards, the defendant's attorney.
The counsel for the prosecution now proposed to give secondary evidence of the contents of the document.
Godson, Q.C., and W. H. Cooke, objected that the notice to produce was insufficient, on two grounds. First, because it was served on the attorney and not on the defendant, who could not appear by attorney ; and, secondly, because the notice was not given in time. It was served after the commencement of the assizes, which began on Thursday, the notice to produce being served on Friday. The notice to produce a document at the assizes, made after the assizes began, was equivalent to no notice at all.
COLTMAN, J., overruled both objections, observing that the service on the attorney was in fact a service on the defendant.
Secondary evidence was then given by the Clerk of the County Court of the contents and state of the account when produced before the Judge of the County Court, and also by Dickens of its state when signed by him.
The defendant was ultimately acquitted.
Gloucester, April 3, 1849.
Evidence-Pawnbrokers Act—False declaration. To prove the making of a false declaration under the Pawnbroker's Act
(39 & 40 Geo. 3, c. 99), it is not absolutely necessary to call the magistrate before whom it was made, or some one present at the time. It is sufficient to show such facts as necessarily lead to the conclusion that the defendant made it, and had a knowledge of the contents. Sed
quære. To prove that such a declaration is false in fact, it is necessary to negative
the defendant's statement by the oath of two witnesses, in the same manner and to the same extent as the proof of an assignment for perjury. THE defendant was indicted for having, at Stroud, in the county
1 of Gloucester, on the 15th of December, 1846, wilfully and corruptly made a false declaration before Edmund Gilling Hallewell, Esq., one of Her Majesty's justices of the peace for the said county, that he had lost a certain note or memorandum, being a pawnbroker's ticket, whereas, in truth, he had not lost it, but had sold it to one Charles Bingle. (6)
Grey, for the prosecution, in stating the case to the jury, sought the opinion of the learned judge (Platt, B.) as to the sufficiency of
(a) Reported by J. E. Davis, Esq., Barrister-at-Law.
(6) By stat. 39 & 40 Geo. 3, c. 99, s. 16, it is enacted that in case any note or memorandum delivered by a pawnbroker of goods pledged to him, shall he lost, mislaid, destroyed, or frandulently obtained from the owner, then the pawnbroker “shall, at the request and application of any person, &c., who shall represent himself, &c., to the pawnbroker as the owner, &c., of the goods and chattels in pledge as aforesaid, deliver to such person, &c., a copy of the note or memorandum so lost, mislaid, &c., with the form of an affidavit of the particular circumstances attending the case, printed or written, &c., on the said copy, as the same shall be stated to bim or her by the party applying as aforesaid, &c.; and the person, &c., having so obtained such copy of the note or memorandum and form of affidavit as aforesaid, shall thereupon prove his, her, or their property in, or right to, such goods and chattels, to the satisfaction of some justice of the peace, &c., and shall also verify, on oath or affirmation, as the case may be, before the said justice, the truth of the particular circumstances attending the case mentioned in such affidavit or affirmation to be made as aforesaid, the caption of such oath or affirmation to be authenticated by the handwriting thereto of the justice before whom the same shall be made, and who shall, and is hereby required so to authenticate the same, whereupon the pawnbroker sball suffer the person, &c., proving such property to the satisfaction of such justice as aforesaid, and making such affidavit or affirmation as aforesaid, on leaving such copy of the said note or memorandum and the said affidavit or affirmation with the said pawnbroker, to redeem such goods or chattels."
The 5 & 6 Will. 4, c. 62, s. 12, substitutes a declaration in lieu of the affidavit above mentioned ; and sect. 21 enacts that any person " who shall wilfully and corruptly make and subscribe " any declaration substituted for an oath by that statute, “knowing the same to be untrue in any material particular, shall be deerned guilty of a unisdemeanor."
REG. the evidence which he was prepared to offer in support of the case.
The defendant had pledged certain articles to a pawnbroker at BROWNING Stroud, for which he received a memorandum or duplicate, and had
subsequently gone to him and stated that he had lost the ticket or Pawnbrokers duplicate. The pawnbroker told him he must make a declaration
prisoner a copy of the ticket, and a form to be filled up, according
PLATT, B.-As regards the proof of the declaration having been made by the defendant, I think there may be sufficient evidence to support the indictment, if you can bring home to him a knowledge of the contents; but I am of opinion that the falsity of that declaration must be proved by the oaths of at least two witnesses, as in a case of perjury, otherwise there would be merely oath against oath. I understand that there is only one witness to prove this part of the case, and therefore I think the prosecution cannot be supported.
No evidence was offered, and the defendant was acquitted.
[There can be no doubt as to the correctness of the learned baron's ruling on the last point, but the very analogy of the proof in a charge of perjury leads to the inference that the fact of the declaration having been made must be proved with the same strictness as in an indictment for perjury. The making a false declaration is made a misdemeanor by the act of Parliament, which substitutes a declaration in lieu of the oath in this and certain other cases ; and it could never be contended that an indictment for perjury could be sustained by evidence of the above description.-J. E. D.]