CT. OF APP.] GRIFFITH AND WIFE v. TAYLOR; THATCHER v. TAYLOR. that it cannot be said that the wife stole the property, and therefore, under the circumstances in this case, there was no evidence that the prisoner received the property well knowing it to have been stolen. With respect to the cases of Reg. v. Deer and Reg. v. Featherstone, the reports in the Law Journal show that they may be sustained in law on reasonable grounds. But those grounds are against the prosecution in this case. LUSH, J.-I am of the same opinion. The property if stolen in this case must have been stolen by the wife. It is admitted that the wife did not steal the property when she left Burslem, as a wife cannot steal her husband's property, and they are one person in the eye of the law, and neither can be a witness for or against the other in criminal proceedings. At what time, then, did she become a thief? It is said when she became an adulteress. But how can that be? Adultery affords ground for a divorce, but the mere act of adultery does not make a difference in the status of husband and wife per se, and constitute the wife a thief if she afterwards takes away her husband's property. Therefore, if the property was not stolen by the wife in this case, the prisoner could not be guilty of receiving it well knowing it to be stolen. DENMAN, J.-I am of the same opinion. HUDDLESTON, B.-I am of the same opinion. Even the finding of the jury in the Divorce Court that a wife has committed adultery does not alter the status of husband and wife; there must be a decree of the court to effect that. In Needham v. Bremner (L. Rep. 1 C. P. 583; 35 L. J. 313, C. P.) where in a divorce suit both husband and wife had been found guilty of adultery, and the suit was dismissed, Erle, C.J. said that the judgment in the Divorce Court did not alter the status of the defendant's wife, but she continued to be his wife notwithstanding the jury thought she had done wrong. Therefore, although the verdict in such divorce suit might, as between the same parties be binding and conclusive, it certainly would not as between other parties. That being so, the wife could not steal the property, and therefore the prisoner could not be guilty of receiving the property well knowing it to have been stolen. [CT. OF APP. 24 & 25 Vict. c. 96, s. 103, so as to entitle defen dant to notice of action under s. 113, depends on the circumstances of the particular case, and ought to be left to the jury. Defendant found a box of his at Reading station, in the railway carriage in which plaintiffs were. He wished to arrest plaintiffs on the charge of stealing the box, but the station-master refused to detain the train. Defendant telegraphed from Reading, and had plaintiffs arrested on their arrival in London. Plaintiffs sued for false imprisonment. No notice of action was given, and the verdict was entered for defendant on the plea of not guilty, by statute 24 & 25 Vict. c. 96, 88. 103, 113. Held (affirming the judgment of the Common Pleas Division), that the question whether the arrest was immediate or not depended on the particular circumstances, and ought to have been left to the jury, and there must be a new trial. APPEAL from the decision of the Common Pleas Division. These were two actions for false imprisonment, and the facts in both cases being the same they were tried together. The plaintiffs in the two actions, Mrs. Griffith and her sister Miss Thatcher, who were public singers, had been singing at a foresters' fête at Haddington Hall, near Oxford, and were returning to London by an evening train, accompanied by four other persons; they got into a third class carriage at Oxford. The defendant, who was travelling from Oxford to Reading by the same train, had with him a small wooden box with a strap round it containing eggs. He left the box on a bookstall on the platform, and were absent a few minutes, and when he came back to get into the train the box was gone. When the train arrived at Reading the persons who were travelling with the plaintiffs got out and went to the refreshment room, leaving the plaintiffs in the carriage. The defendant who was looking for his box came to the carriage in which the plaintiffs were, and the box was found under the seat of the carriage. The defendant accused the plaintiffs of stealing the box, and requested the station-master to detain the train in order that they might be taken into custody. The station-master refused to do so, and the plaintiffs went on in the train. The defendant then communicated with the police at Reading, and caused a telegram to be sent to London, ordering the arrest of the plaintiffs, and stating that the defendant would go on from Reading to London by the fast train. Owing to some error, the telegram received by the police in London stated that he would arrive by the first train. The plaintiffs were taken into custody by the police on their arrival in London, and were detained in custody for several hours, but when it was found that the defendant had not arrived by the first train, they were discharged. Some days afterwards they were again arrested on a warrant obtained by the defendant, and were taken to Oxford, and brought before the magis trates, and charged with stealing the box. The magistrates dismissed the charge. No notice of action was given, and at the trial, which took place before Brett, J., at the Middlesex sittings, after Michaelmas Term 1874, the jury found that the defendant honestly believed in the existence of facts which, if true, would have afforded a justi fication, that is, honestly believed that the plaintiffs had been found stealing the box, and the verdict CT. OF APP.] GRIFFITH AND WIFE v. TAYLOR; THATCHER v. TAYLOR. was entered for the defendant on the issue raised by the plea of not guilty by statute (24 & 25 Vict. c. 96, ss. 103, 113). (a) A rule nisi for a new trial was afterwards obtained on the grounds that there was no evidence of facts which warranted the jury in finding that the defendant was protected by the statute, that the verdict was against the weight of evidence, that the judge did not sufficiently explain to the jury the meaning of the words "found committing," in sect. 103, and for misdirection. The Common Pleas Division (Lord Coleridge, C.J., and Brett and Archibald, JJ.), made the rule for a new trial absolute, and the defendant appealed. Jelf and Bosanquet for the defendant.-To entitle the defendant to notice of action it is sufficient to show that on some grounds he had a bonâ fide belief in the existence of facts which if they had really existed would have justified the arrest. Supposing there really were a larceny in this case, it would be a continuing act, although there was a complete asportavit when the box was taken from the bookstall at the Oxford station. The defendant did all he could do; his whole conduct shows that he was intending to act in pursuance of the statute. He kept up a constant and hot pursuit, which is all the cases say is necessary. The judgment of Jervis, C.J., in Read v. Coker (13 C. B. 850; 22 L. J. 201, C. P.), supports the defendant's contention. Downing v. Capel (L. Rep. 2 C.P.461; 36 L. J. 272, C. P., 97, M. C.; 16 L. T. Rep. N. S. 323) shows the principles on which the courts proceed in determining what is hot pursuit. In the present case the defendant is simply using the best practicable means for doing what he is unable to do himself, i.e., arresting the plaintiffs. He used the telegraph, which is the same thing as if he had called to a person at a distance and told him to arrest. He could not have acted more promptly under the circumstances, and there was not time or opportunity to obtain a warrant. Digby Seymour, Q.C. and Culpepper, for the plaintiffs. The question as to being "found committing" the felony is one which ought to be left to the jury. Roberts v. Orchard, 33 L. J. 65, Ex; 2 H. & C. 769; What is found by the jury is not sufficient to (a) By 24 & 25 Vict. c. 96 (An Act to consolidate and amend the Statute Law of England and Ireland relating to larceny and other similar offences.) Sect. 103. "Any person found committing any offence punishable either upon indictment or upon summary conviction by virtue of this Act, except only the offence of angling in the daytime, may be immediately apprehended without a warrant by any person, and forthwith taken together with such property, if any, before some neighbouring justice of the peace, to be dealt with according to law. By sect. 113. "All actions and prosecutions to be com. menced against any person for anything done in pursuance of this Aot shall be laid and tried in the county where the fact was committed, and shall be commenced within six months after the fact committed, and not otherwise; and notice in writing of such action, and of the cause thereof, shall be given to the defendant one month at least before the commencement of the action; and in any such action the defendant may plead the general issue, and give this Act and the special matter in evidence at any trial to be had thereupon. ... [CT. OF APP. by the statute they ought to decide. The plain- Hanway v. Boultbee and wife, 1 M. & R. 15. COCKBURN, C.J.-I am of opinion that the judg ment of the Common Pleas Division ought to be affirmed, but I cannot say that I have come to this conclusion on exactly the same grounds as those on which their judgment was based. I think, therefore, that it is right, to give my own reasons for the decision. The question turns on the construction of sects. 103 and 113 of 24 & 25 Vict. c. 96. [Reads the sections.] According to the latest authorities on the law as to giving notice of action for an act done in pursuance of this statute, it is laid down that to entitle the defendant to notice of action he must have acted under a bona fide belief in the existence of circumstances, which if they had really existed, would have afforded a justification for what he had done. The decision in cases of this kind turns on the two parts of the clause in sect. 103 to which I have referred. The first part relates to the question whether the party arrested is found committing the offence for which he is arrested, as to that part of the section the question of bonâ fide belief is all essential. The second part relates to the immediateness of the arrest, and as to this the questions turns, not on the mind of the person making the arrest, but on his act. When you come to act under a belief in the existence of such a state of facts as would if they existed justify an act done under the statute, there still remains the question whether the act was done in comformity with the statute. If the defendant were acting under a bonâ fide mistake of fact as to the persons arrested having been found committing the offence with which they were charged, he would, so far as that part of the section goes, be within the protection of the statute, but if he were acting under a mistake as to the meaning of the statute on the question whether the arrest was immediate or not, he would not be protected. In the present case the defendant, no doubt, believing bonâ fide that a felony had been committed, and under circumstances which were calculated to make him believe that such was the case, caused the plaintiffs to be arrested. If a felony had really been committed he would have been justified, but the question is whether he is protected by the statute, having acted under a mistaken belief. It was argued for the plaintiffs that they could not have been found committing the offence, because the offence, if any, was committed at Oxford: the box was left on the platform at Oxford, and appears to have been taken by some one; it was afterwards found in the plaintiffs' possession, and, if taken at all, it was taken at Oxford. But if it were taken at Oxford, and removed, the asportation would continue. If property is taken and carried away, and if, while it is in the course of removal, the person who took it is found in possession of it, the asportation continues. A case was put in the course of the argument of a man who steals property and runs away with it, and, on pursuit, is taken with the property in his possession; in such a case as that he is found committing the offence of stealing the property. I think the statute would be satisfied if the defendant acted under it in the bonâ fide belief that the plaintiffs were found committing the offence, and he would have been justified, if they had actually been found committing it. But it is not found by the jury that the plaintiffs did commit any offence, and we must take it that their guilt was negatived. Then there is the question whether the apprehension was immediate. No doubt sects. 103 and 113 of 24 & 25 Vict. c. 96, were meant to meet cases of misdemeanor, but the words of the sections are large enough to comprehend cases of felony, and it is intended that where the offence is committed, and a person is found committing it, anybody, without a warrant, may take him and bring him before a magistrate. But although "immediate " is a strong word, the clause must receive a reasonable construction. If a person is found committing an offence against the statute, and his apprehension on the spot is impracticable, and if, by pursuit he is taken at a distance, this may or may not be an immediate apprehension within the meaning of the statute according to the particular circumstances; in every case it is a question of fact. Here, if on application to the station-master, the defendant could have stopped the train so as to enable him to apprehend the plaintiffs, and he had not done so, but had allowed the plaintiffs to escape, and had afterwards followed or sent after them, and caused them to be apprehended, the statute would not protect him, but if immediate apprehension on the spot were impracticable, but pursuit were made, and the arrest effected on the earliest possible opportunity, that might be within the Act. If he had deputed another person to go and act for him, I think that would be sufficient. he had sent on by a faster train, so as to make the arrest as soon as it was possible to come up with the train by which the plaintiffs had gone on, I think that would be within the statute, for he would have arrested on instant pursuit, and in the same way if he telegraphed and caused them to be arrested, availing himself of the first opportunity which he had of making the arrest, I think that would do. But it is impossible for us to say what the decision ought to be on the question whether there was an immediate apprehension or not. It is a question of fact and of degree, and, therefore, is a question for the jury. It was not left to them, and we cannot decide it here. We can only say that the statute should receive this or that construction. The rule will, therefore be absolute for a new trial, not on the ground that the circumstances were not such that the defendant may have bonâ fide believed that the plaintiffs were found committing the offence, but on the ground that the defendant may or may not have done what the statute requires to bring him within the protection afforded by sect. 113, and the question whether he has or not ought to be decided by the jury. If BRAMWELL, J.A.-I am also of opinion that this appeal ought to be dismissed. I think that on the evidence in this case if the plaintiffs had been found committing the offence with which they were charged it ought to be held that they were found committing it at Reading; but I do not wish to add anything further on that point, for they were not found committing the offence. As to the other point, it is difficult to lay down any fixed rule to meet all cases, for it is always a question of degree. I am not sure that the judge ought not to have told the jury that the plaintiffs were not found committing the offence, and that there was not an immediate arrest, and I am not sure that it makes any difference whether the arrest was not made at the place where the persons arrested were supposed to have been found committing the offence, because the person who afterwards arrested could not, or because he would not, arrest on the spot. I agree with the Lord Chief Justice that, if this is not a question of law which ought to be ruled in favour of the plaintiffs, it is a question for the jury, because we cannot say that it is a question of law which ought to be ruled in favour of the defendant. I should suggest for the guidance of the judge before whom the trial will take place that he should leave the question to the jury whe ther there was an immediate arrest, and reserve the point. The case must go down for a new trial. AMPHLETT, J.A.-I am of the same opinion, on very much the same grounds as those stated by Bram. well, J.A. Although I concur with the rest of the court that the case must go back to be tried again, for the judge ought to leave it to the jury to find the exact circumstances, and the facts are not before us so as to enable us to decide how the verdict ought to be, even if an arrest in London could be held to be immediate, I should think myself that no apprehension in London for an offence sup posed to have been committed at Reading, could be within sect. 103. I think the intention of the Legislature was that the offender should be arrested then and there, and if he gets away and is not taken in hot pursuit, it cannot be an immediate arrest under that section. But I think that the case should go back for a new trial, and the facts should be found. Judgment affirmed. Solicitor for plaintiffs, E. M. Chubb. Solicitor for defendant, Charles Mallam HIGH COURT OF JUSTICE. COMMON PLEAS DIVISION. Reported by P. B HUTCHING, and S. HARE, Esqra., Barristers-at-Law. Friday, Nov. 17, 1876. DAWSON (app.) v. ROBINS (resp.) Parliamentary franchise County vote - Rentcharge. The grantee of a freehold rentcharge of the yearly value of 40s. or upwards issuing out of a reversion is entitled to vote at county elections. APPEAL from the decision of a revising barrister. The following case was stated for the, opinion of the court. At a court held at Southampton on the 22nd Sept. 1876 by me, the barrister appointed to revise the lists of voters for the Southern Divi sion of the county of Hants, objection was duly made to the claim of Oliver Robert Dawson to have his name inserted in the list of voters in the parish of St. Mary for the said Southern Division of the said county. The qualification stated by the said Oliver Robert Dawson in his claim was a "freehold rentcharge" issuing out of houses and land Itchen Bridge-road and Dock-street, owner Henry Comp ton. It appeared that by an indenture bearing date 29th Sept. 1874, the reversion in fee in the said premises was conveyed to the said Henry Compton, subject to certain leases of 1000 years each, created by indenture of demise bearing date 29th July 1864. In each of these leases a ground rent was reserved, and in each was contained a power of re-entry in default. These leases are still subsisting. By indenture bearing date the 15th Jan. 1875, the said Henry Compton granted to the said Oliver Robert Dawson a yearly freehold rentcharge of 21. 108. charged upon the said premises. The said indenture also contained a power of distress in default of payment of the said rentcharge. Copies of the aforesaid indenture of the 29th Sept. 1874, and of the 15th Jan. 1875, comprised in schedule B. are annexed to this case. It was not disputed that the reserved groundrent was amply sufficient to meet this and other rentcharges granted about the same time and issuing out of the same premises, and that the amount due to the said Oliver Robert Dawson and the other grantees had been actually paid to each of them respectively by the agent of the said Henry Compton. The claims of four other persons whose names are set out in the schedule A. hereunto annexed were objected to on the same grounds. I was of opinion that considering the nature of Henry Compton's interest the power of distress contained in the indenture of the 15th Jan. 1875, was nugatory, and disallowed the claims of the said Oliver Robert Dawson and of the said four other persons to be inserted in the said list. The cases of the four other persons mentioned in schedule A. depending upon the same decision are consolidated with this case. If the court be of opinion that my decision was wrong the register is to be amended by inserting the names of O. R. Dawson and of the four other persons in the said list. Ridley, for the appellant.-The appellant is entitled to have his name placed on the register. A rentcharge is a tenement within the meaning of 10 Hen. 6, c. 2, and its nature is not altered by the abolition of real actions by 3 & 4 Will. 4, c. 27, s. 36. Thomas v. Sylvester, L. Rep. 8 Q. B. 368; 42 L. J. 237, Q. B.; 29 L. T. Rep. N. S. 290; Whitaker v. Forbes, L. Rep. 10 C. P. 583; 44 L. J. 332, C. P.; 33 L. T. Kep. N. S. 582. [He was stopped by the court.] Chester, for the respondent.-The grantee of such a rentcharge as this has merely a personal remedy against the grantor; he has no remedy against the land itself. [LINDLEY. J.-He might obtain a decree for a sale to raise the arrears White v. James (26 Beav. 191). Lord COLERIDGE, C.J. referred to Dodds v. Thompson, L. Rep. 1 C. P. 133; 35 L. J. 97, C. P.] Thomas v. Sylvester (ubi sup.) is distinguishable, because there a good rentcharge was created out of the seisin in fee by [C.P. Div. the Statute of Uses. [Lord COLERIDGE, C.J.Can no one create a valid rentcharge except a yeoman farming his own land?] Not for this purpose. This is merely a payment in gross, and is not a tenement within 10 Hen. 6, c. 2, so as to confer a right to vote. He also referred to Bacon's Abridgment "Rent" B.; Steele v. Bosworth (34 L. J. 57, C. P.); Hopwood and Philbrick's Registration Cases 106 s. c. Lord COLERIDGE, C.J.-In this case I am of opinion that the decision of the revising barrister was wrong, and ought to be reversed. We must look at the words of the statute in order to see whether the person objected to was qualified to vote. The statute 10 Hen. 6, c. 2 says that the persons who are to vote are those who have a "frank tenement" of the value of forty shillings a year. Now has the appellant in this case such a "frank tenement"? By the deeds which accompany the case it appears that Mr. Compton held the land in fee subject to certain leases, that is, he was the reversioner. Then he creates these rentcharges by conveyances each of which is sufficient to give a "frank tenement" of the value of 21. 10s. a year issuing out of the land, for there is a good conveyance, and the grantee receives the profits of the interest conveyed, which is a rentcharge of 21. 10s. a year, and the land is sufficient to pay the amount. I am, therefore, of opinion that the appellant was entitled to vote. LINDLEY, J.-I am of the same opinion. There are two questions to be considered, first, what sort of interest does the appeilant take, and secondly, what is the value of that interest ? Can any conveyancer say that this is not a freehold interest, being a rentcharge in fee simple charged on the reversion? Then as to the value. The property is of ample value to pay the yearly sum which is charged upon it, the appellant is in receipt of the profits, he has remedies to enforce payment, and to my mind he has a remedy against the land, for I think he could, if it were necessary, get a sale of an aliquot part of the land to raise the value of the interest to which he is entitled. I am therefore of opinion that the decision of the revising barrister ought to be reversed. Judgment for the appellant. Solicitors for the appellant, Roberts and Barlow; for Coxwell, Bassett, and Stanton, Southampton. Solicitors for the respondent, Bradby, Robins, and Co., Southampton. C.P. Div.] FULHAM BOARD OF WORKS appear in the judgment of the court (Grove and Denman, JJ.), which was delivered by DENMAN, J.-In this case, heard before my brother Grove and myself, we took time, in order to enable us to look into the cases cited, one of which had been so recently decided, that we had not an opportunity, during the argument, of fully examining the report. A verdict had been entered for the plaintiff in the Court of Passage, at Liverpool, for 501., with leave to the defendant to move to enter a verdict for him upon the finding of the jury. These findings were as follows: That the plaintiff and defendant agreed together that the plaintiff, a professional betting man, was to lay out 2l. in betting on a horse called Regal for a particular steeple chase, taking the odds, or betting 25 to 1 on the horse. If Regal won, it was agreed that the plaintiff was to have 501. from the defendant, to be paid out of the defendant's winnings, if he (the defendant) backed Regal. If Regal lost, the plaintiff was to pay the defendant 21. The deferdant did back Regal, who won; and the defendant thereby won in bets, which he had made on Regal, 571. of which the plaintiff claimed 50l. It was contended by Mr. French for the defendant that this transaction was "an agreement by way of gaming or wagering," within the 8 & 9 Vict. c. 109, s. 18; and the action one "for recovering money won upon a wager," within that section. On the other side it was argued by Mr. Willis for the plaintiff that the real meaning of such a contract was merely that the defendant undertook to pay the plaintiff so much out of his winnings, in case of Regal's success, by way of remuneration to the plaintiff for giving the defendant the benefit of his skill, experience, and information, in naming a probably successful horse. We can, however, only look at the contract as it appears upon the findings of the jury, and, so looked at, it appears to us to be clear that it is a contract by way of wagering, and nothing else. Even if the object of the defendant in entering into such a bargain was correctly surmised by the plaintiff's counsel, the ultimate effect of the bargain was to be wholly dependent upon the occurring of an event over which neither party had any control; and the action was one founded upon the supposed right to recover money won upon the happening of that event, viz., the winning of a particular race. This being so, we think it matters not that the bargain was complicated by a provision for other contingencies, as, for instance, that the defendant was only liable to pay the 501., if he backed the particular horse, and won upon him. The substance of the contract is always to be regarded, and we think that a contract such as this, however disguised, is in substance a contract by way of wagering. In Grizewood v. Blane (11 C. B. 538), it was held that a contract was within the statute, though on the face of it it appeared to bo a contract for the sale of shares, if it was in fact only intended that differences should be paid, and no shares really passed. And on the same principle, in Rourke v, Short (5 E. & B. 904), it was held that where a contract mainly depended upon a wager, no action could be maintained upon it, even an action for goods sold, when the parties had agreed that the price of the goods, agreed to be sold by the plaintiff to the defendant, should depend upon the result of a wager. The case of Hill v. Fox (4 H. & N. 359), was decided upon the same principle, and is to the like effect. The cases cited by Mr. Willis on behalf of the plaintiff were none of them inconsistent with this decision. They were not cases of actions brought by one party to a wager. ing contract against the other for money alleged to be due upon the contract. In the case of Beeston v. Beeston (45 L. J. 230, Ex.; 33 L. T. Rep. N. S. 700), which was the most relied upon, the court only held that the plaintiff could recover on a cheque given by the defendant to the plaintiff for the amount of moneys received by the defendant for winnings in bets made by the defendant with third persons as agent for the plaintiff. This was held not to be the case of an action upon a contract by way of wagering, but of one brought upon a cheque given for money received by the defendant for which he was liable to account to the plaintiff. Johnson v. Langley (12 C. B. 468) was a similar case, and is no authority for the plaintiff in the present case, who sues upon the contract itself. We are of opinion that the rule must be made absolute to enter judgment for the defendant with costs. Solicitors for the plaintiff, Torr and Co. Solicitors for the defendant, Vizard, Crowder and Co. DIVISIONAL COURT FOR APPEALS Thursday, May 18, 1876. FULHAM BOARD OF WORKS (apps.) v. GOODWIN (resp.). Cost of sewer-New street-Previous sewer— -Metropolis Local Management Act 1867 (25 & 26 Vict. c. 102, ss. 44), 52, 112. In 1867, a sewer was built in a street, formed since 1862, of some houses in which the respondent was owner, at his expense, under 25 & 26 Vict. c. 102, s. 44. In 1875 the appellants removed this sewer, and another in the next street, and constructed a new sewer in connection with the houses in both streets. They apportioned the cost and expenses of the works upon the owners of houses and land in the two streets. The respondent refused to pay his apportionment, and a magistrate dismissed the summons against him. Held, upon a case stated, that this was not a sewer constructed in or for the drainage of a new street within the meaning of sect. 52 of the said Act, and that the apportionment was bad. THIS was an appeal from the decision of the magistrate at Hammersmith Police Court. The appellants herein are the District Board of Works for the Fulham district, and the respondent is a builder owning property in the district. 1. Complaint was made by the clerk to the said board of the non-payment by the respondent of the sum of 6461. as owner of certain premises situate and being in Mayland and Conningham roads, in respect of certain sewer works carried out in the said roads, which said roads were formed and laid out as new streets since the 7th Aug. 1862. A summons was duly issued, and the parties attended, and the following facts were proved before the said magistrate : 2. The respondent is, and at the time of the making of the sewer was, in the year 1867, and |