cases cited in the note to 2 Starkie on Evidence, 13, it is said, if there be confirmation of the accomplice as to one of the prisoners, the jury may convict as to all.

CRESSWELL, J.-I have always acted upon the view of the subject taken by my Brother Parke. You may take it for granted that the accomplice was at the committal of the offence, and may be corroborated as to the facts, but that has no tendency to shew that the parties accused were there.

WILLES, J.-This is not a question of law, but of practice, and questions of law only can be reserved for our opinion. Conviction affirmed.

Counterfeiting Foreign Coin-Making Specimens without Intent to circulate-Attempt to commit Felony-Doing Act evidencing Intent to commit Felony.

The prisoner, with the intent of coining counterfeit half-dollars of Peru, procured dies in this country for stamping and imitating such coin. He was apprehended before he had obtained the metal and chemical preparations necessary for making counterfeit coin :-Held, that the procuring the dies was an act in furtherance of the criminal purpose sufficiently proximate to the offence intended and sufficiently evidencing the criminal intent, to support an indictment founded on it for a misdemeanour, although the same facts would not have supported an indictment for attempting to make counterfeit

coin.

The jury also found, that the prisoner intended to make only a few counterfeit coins in England, with a view merely of testing the completeness of the apparatus before he sent it out to Peru :-Held, that even to make a few coins in England with that object would be to commit the offence of making counterfeit coins within the sta

tute.

Coram Jervis, C.J., Parke, B., Wightman, J., Cresswell, J. and Willes, J..

NEW SERIES, XXV.-MAG. CAS.

Willes, J. stated this CASE.

The prisoner was tried, before me, at the Warwick Summer Assizes 1855, upon an indictment, the first count of which stated that the prisoner "unlawfully, knowingly and without lawful authority or excuse, made and caused to be made, cut and engraved two dies, one of the obverse side, the other of the reverse side of a silver halfdollar of Peru, not being coin current in this realm, with intent to use them, and by means thereof feloniously and against the form of the statute to make counterfeit Peruvian half-dollars, and so attempting to make such counterfeit coin." Another count was similar to this, except that it stated that the prisoner "obtained and procured," instead of "made and caused to be made." The fifth count was for attempting feloniously and against the form of the statute as in the first count, by making, &c. the dies with intent to use them in coining such counterfeit coins, and also by procuring, &c. two galvanic batteries suitable and necessary for the purpose, and also by procuring, &c. acids and other chemicals suitable and necessary for the purpose. Sixth count, for attempting to coin silver half-dollars of Peru, without stating the means.

It appeared at the trial, that early in the present year, 1855, the prisoner, without any authority or licence so to do, ordered and caused to be made by and procured of William Johnson, a die-cutter at Birmingham, in Warwickshire, the necessary dies for making a counterfeit halfdollar, being a silver coin of a foreign country, namely, the Republic of Peru, not being a coin of or permitted to be current in this realm. The dies, though suitable and necessary for making such counterfeit coin, could not alone produce it; a press, copper blanks, galvanic batteries, and a preparation of silver being also necessary for this purpose. The prisoner had procured galvanic batteries, and had been in negotiation for the purchase of a press and copper blanks for the aforesaid purpose; but he was not proved to have actually procured either press, blanks, or preparation of silver. The prisoner caused to be made and procured the dies in Birmingham, and intended to procure the rest of the necessary apparatus there for the pur

D

pose and with the intention of using the entire apparatus, when procured, in making Peruvian counterfeit half-dollars, resembling the genuine coin. The only disputed question of fact at the trial was whether he intended to coin in Peru only, or whether he intended also to coin in this country. The jury stated it to be their opinion that the intention of the prisoner was to cause to be made and procured the dies and other necessary apparatus, in order therewith to coin counterfeit coin in England, by way of trying whether the apparatus would answer, before sending it out to Peru, to be there used in making the counterfeit coin. The jury were then directed, if they thought that the dies were caused to be made and procured by the prisoner, as already mentioned, in pursuance of, and in order to effect, that intention, to find the prisoner guilty, which they accordingly did. Therefore, sentence was respited, and the following questions reserved for the opinion of this Court, viz. "Whether the prisoner, by so causing to be made and procuring the dies as aforesaid, with the intention of using them, together with the rest of the necessary apparatus, when procured, in coining a few counterfeit Peruvian half-dollars in England, in order to try the apparatus before sending it out to Peru to be there used for making the counterfeit coin, was guilty of an offence against the law of this country; and whether any or either of the counts of the indictment alleged such offence."[See 37 Geo. 3. c. 126. s. 2. and Dugdale v. the Queen (1).]

O'Brien, for the prisoner.-The conviction cannot be supported. All the counts of this indictment allege certain acts, and say that they amount to an attempt to make the counterfeit coin. But the acts found do not amount to an attempt to commit the offence, even coupled with the intent. The prisoner had not procured all the necessary materials for coining, and therefore he could not be said to have attempted to coin. The cases which shew that an act, coupled with an intent, may be the subject of an indictment, are founded on The King v. Sutton (2), but that case

(1) 1 El. & B. 435; . c. 22 Law J. Rep. (N.s.) M.C. 50.

(2) 2 Stra. 1074.

has been overruled in The King v. Heath (3), and does not warrant the proposition,

and it is submitted is not law if it does. There, it is said, a criminal intent is the offence.

[JERVIS, C.J.-Is not that right? The guilt consists in the intent evidenced by the overt act.]

The King v. Fuller (4) proceeded upon the doctrine laid down in The King v. Sutton. In The Queen v. Williams (5) an indictment for an attempt to poison was held not supported by evidence that the prisoners gave the poison into the hands of a third party and endeavoured to induce him to administer it.

[CRESSWELL, J.-The Court there held, that it was not an attempt to poisonwithin the words of the statute. But the same prisoners were tried and convicted before me afterwards on an indictment for the misdemeanour of doing the acts with the criminal intent on proof of the same facts.]

An act is indictable only when the very next act to be done in pursuance of the criminal intent is the offence itself-The Queen v. Eagleton (6). The act here is not sufficiently proximate. Having the dies was no more immediately connected with the offence of coining than the taking a railway ticket to go to Birmingham with the intent of procuring them there. A man could not be indicted for buying a brush or paper with intent to paint indecent pictures for sale. The act must amount to an attempt to be indictable, and the indictment to be good must allege there was an attempt to commit the felony. Secondly, to constitute an offence, the intent must have been to coin in this country. Making a few specimens in England with a view merely of testing the sufficiency of the apparatus before sending it to Peru is not the offence of coining. The making specimens for a museum of coins would be no offence.

[PARKE, B.-The prisoner could not make specimens without committing the offence of coining.]

[JERVIS, C.J.-The prisoner could not

(3) Russ. & Ry. 184. (4) Ibid. 303.

(5) 1 Den. C.C. 39.

(6) 24 Law J. Rep. (N.s.) M.C. 158.

be heard to say that it was not an offence, because he made the counterfeit coins for specimens only. The statute is general, and prohibits any one making coin.]

Bittleston, for the Crown, was not called

upon.

JERVIS, C.J.-I am of opinion that this conviction is right. This is not an indictment for an attempt to commit the statutable offence, as was the case in The Queen v. Williams. No doubt, if that were the case, this conviction must have failed, for here there has been no direct attempt to coin; but this is an indictment founded on the criminal intent, coupled with an act. I will not attempt to lay down any rule as to what is such an act done in furtherance of a criminal intent as will warrant an indictment for a misdemeanour, for I do not see the line precisely myself; but it is not difficult to say that the act done in this case is one which falls within it. If a man intends to commit murder, the walking to the place where he purposes to commit it would not be a sufficient act to evidence the intent to make it an indictable offence, but in this case no one can doubt that the procuring the dies and machinery was necessarily connected with the offence, and was for the express purpose of the offence, and could be used for no other purpose.

PARKE, B.-It is difficult to define the line exactly between what is and what is not an act coupled with a criminal intent that will support an indictment. Had the prisoner, with the intent to coin, merely gone to Birmingham with the object of procuring the dies for coining, and had not procured them, the act, I agree, would have been too remote from the criminal purpose to have been the foundation of a criminal charge. An attempt to commit a felony is not the only misdemeanour connected with it. It is a misdemeanour to do any act sufficiently proximate to the offence with the intent of committing it. Now, I do not see for what lawful purpose the dies and apparatus could have been made. The case of statutory attempts to commit felonies is very different; there to support the conviction, proof must be given of an attempt to do the very criminal act.

Indictment-Bankrupt not surrenderingPower of Commissioners-Erasures in Proceedings-Misdescription-Search, Secondary Evidence-Intent to defraud Creditors-Separate Notice to surrender for each Bankrupt.

An indictment was framed on section 251. of the 12 & 13 Vict. c. 106. against one of two bankrupts and partners for not surrendering himself. Before any proceedings in bankruptcy had been taken against them, the bankrupts absconded and went abroad with intent to defraud their creditors, by depriving the latter of the right of examining them and making them responsible. After they were gone, and after they were adjudged to be bankrupts, and after the messenger of the Court of Bankruptcy had taken possession of their last place of business, there was left in the counting-house there a single duplicate of the adjudication, and subsequently there was also served and left in the same place, on the 27th of July, a single copy of a summons or notice to surrender. summons was signed by Commissioner H, and addressed to both the bankrupts, and gave them notice to surrender on the 7th of June, and on the 19th of August, (the day limited

The

The case was argued, Nov. 10, 1855, before Jervis, C.J., Parke, B., Erle, J., Crompton, J. and Willes, J.; and on Nov. 30, before Lord Campbell, C.J., Jervis, C.J., Parke, B., Alderson, B., Wightman, J., Cresswell, J., Erie, J., Platt, B., Williams, J., Crompton, J. and Willes, J.

for their surrrender) before Commissioner G. at the Court of Bankruptcy (to whom the petition for adjudication had originally been allotted). On the 19th of August, Commissioner F. sat in the place of Commissioner G. in the Court of Bankruptcy. The bankrupts did not surrender. Notice to produce the duplicate adjudication, and copy of the notice to surrender was given to the party indicted before the trial; and on the trial it was proved that search had been made for the documents at the counting-house, but that they could not be found. On the trial also the proceedings in bankruptcy were put in, and it appeared that there were erasures and interlineations in the affidavit verifying the petition for adjudication, and no proof was given when they were made:-Held, that the affidavit was admissible, for the Court would presume it was in the same state as when it was sworn; as to alter an affidavit after it was sworn was an act of fraud and misconduct, and the presumption was against fraud or misconduct having been committed.

In the adjudication and proceedings the bankrupts were described as of C. Lane, in the City, colonial brokers, and of W. Lane, in the county of Middlesex, distillers. In the advertisement of the bankruptcy in the Gazette the description was identical, except that W. Lane was said to be in the county of Essex :-Held, that the misdescription was immaterial.

Held, further, that though the petition was allotted to Commissioner G, yet that any other Commissioner might sit and act for him; consequently, that the notice to surrender, though signed by Commissioner H, was good, and that it was the bankrupt's duty to surrender before Commissioner F, who was sitting for Commissioner G. on the day appointed; that it was no objection to the notice that it was to surrender on one of two days, one of which was past at the time of the service of the notice, as the last of the two days was the day limited according to the statute for the surrender.

Held, also, that searching at the countinghouse and giving the bankrupt notice to produce were sufficient to allow of the production of secondary evidence of the documents left at the counting-house.

Held, likewise, that if the notice to surrender was duly served, and the bankrupt did not surrender pursuant to it, he

would be guilty of the offence of not surrendering, though he had no actual knowledge that he had been made a bankrupt; and also that assuming the words in the 251st section, "with intent to defraud his creditors," applied to the case of a bankrupt not surrendering, yet that the absconding with the intent proved was sufficient.

Held, lastly, by a majority of the Judges, that the conviction was bad, as a separate notice to surrender had not been left for each of the bankrupts at their last place of busi

ness.

Erle, J. stated the following CASE.

The indictment was against the prisoner for felony, in not surrendering as a bankrupt, under the 12 & 13 Vict. c. 106. s. 251. The first count, after stating the bankruptcy in detail of Davidson & Gordon, alleged that a duplicate of the adjudication was served upon Davidson & Gordon by leaving the same at the usual place of business; that on the 30th of June the Court caused notice of the said adjudication to be advertised in the Gazette, and appointed two public sittings for the bankrupts to surrender: viz., the 7th of July and the 19th of August; that the 19th of August became the day allowed to the bankrupts for finishing their examination; that on the 26th of July notice in writing of the adjudication and of the said sittings and of the day limited for such surrender and allowed for such examination, was left at the usual last-known place of business; and that on the 19th of August the prisoner did not surrender. The second count was the same, except that the prisoner was therein charged with not attending to finish his last examination on the day of surrender, viz., the 19th of August. The third count recited the proceedings in bankruptcy as before, and charged that the prisoner did not surrender to the Court of Bankruptcy in London, although the Court of Bankruptcy held a sitting for receiving such surrender. The fourth count, after reciting the proceedings in bankruptcy, and that the 19th of August was the day limited for the surrender of the bankrupts to the Court of Bankruptcy, and that 12 at noon of that day was the day and hour allowed by the said Court for finishing their last examination, charged that the

prisoner, on the day so limited, and after notice given in the Gazette of the adjudication of the said time being limited for the said surrender, did not surrender himself to the said Court of Bankruptcy at any time on the said day. The prisoner was properly convicted, unless one of the following objections should be found valid: -First, upon the evidence it appeared that the bankrupts left this kingdom, on the 17th of June, believing they should be made bankrupts, and that they stayed abroad with the intent to defraud their creditors by depriving them of their right to examine the bankrupts and to make them responsible, and the jury must be taken to have found that this was so. The papers requisite to prove the bankruptcy were produced. On the petition there was an alteration in the description of West Ham Lane, the place of the distillery of the bankrupts, from Middlesex to Essex. On the depositions to support it there was the same alteration, and also the name of Davidson was interlined. On the adjudication there were alterations from Middlesex to Essex, from the 20th to the 21st of June, and from the name of Holroyd to the name of Fonblanque as Commissioner. But all these papers were produced sealed with the seal of the Registrar of the Bankruptcy Court. Some of the alterations were attested by the signature of the Registrar, and there was evidence given in the course of the trial, but after some of them had been in evidence, that all the alterations were made while the papers were in the course of formation, and before they were used as complete. The objection was, that these papers were not admissible in evidence, and if admitted were invalid by reason of the alterations. Secondly, upon the petition it appeared that it was assigned by ballot to Mr. Commissioner Goulburn, but the subsequent proceedings were either before Mr. Commissioner Holroyd or Mr. Commissioner Fonblanque. The objection was, that they were invalid on that account. Thirdly, the duplicate adjudication was left at the counting-house in Mincing Lane, being the usual and last-known place of business of the bankrupts, on the 21st of June. All the papers and property of the bankrupts were removed therefrom, and the

place was locked up, on behalf of the assignees, on the same day, but this paper was left and seen there a fortnight or three weeks after this removal. On the 26th of July the duplicate summons to appear was left at the same counting-house, which was unlocked for that purpose, and then locked up again. Before the trial the counting-house was searched and neither of these papers was found. Notice to produce these papers was served upon the prisoner in prison, and the service must be taken to have been forty-eight hours before the trial began. I admitted the duplicate originals of these papers to be read, on the ground that no notice to produce was necessary; and if it was, that the search for the originals and the notice to produce were sufficient. The objection. was, that these documents were not admissible in evidence. Fourthly, the Gazette stated that a petition for adjudication in bankruptcy had been filed against Daniel Mitchell Davidson and Cosmo William Gordon, of Mincing Lane and Cousins Lane, Upper Thames Street, in the city of London, colonial brokers and metal agents, and of West Ham Lane, in the county of Middlesex, distillers, dealers and chapmen; and they having been declared bankrupts, were thereby required to surrender themselves to Edward Goulburn, Esq., one of Her Majesty's Commissioners of the Court of Bankruptcy, on the 7th of July next, at 11 in the forenoon, and on the 19th of August at 12 at noon, at the Court of Bankruptcy at Basinghall Street, in the city of London, and make a full discovery, &c. The former proceedings had described them in the same manner, except that West Ham Lane was in them stated to be in Essex and not in Middlesex. The objection was, that the notice in the Gazette was insufficient on this account. Fifthly, the Gazette required the surrender on two days as before stated. The summons, after reciting a petition and adjudication, stated that E. Holroyd, Commissioner, summoned the bankrupts personally to be and appear before Edward Goulburn, serjeant-at-law, at the Court of Bankruptcy, in Basinghall Street, in the city of London, on the 7th of July 1854, at 11 in the forenoon, and on the 19th of August 1854, at 12 at noon, the