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![handle is hein.slavery/ssactsengr0587 and id is 1 raw text is: prisoner, but the bankers cashed the forged instrument when presented by her, in
order to accommodate Morgan Thomas, and because the prisoner was accompanied
by Mrs. Susanna Harman, a person well known to the bankers, and who signed her
name as a guarantie upon the instrument so tendered.
E. V. Williams and Nicholl Came, for the prisoner, contended that this evidence
did not support the indictment; and submitted, that, to support the present indict-
ment, the instrument must appear either to be an order, or both a warrant and order ;
that the document in question was not an order, and therefore could not be a warrant
and [52] order ; and that it was not an order, because it did not purport to be signed
by a person who might, under these circumstances, command the payment of the
money, nor to be directed to a person who was compellable to obey it ; and that it
was unnecessary to consider whether it was a warrant, as there was no count describing
it as such (a).
Wightman, J.-I am of opinion that the instrument is a warrant; and I am also
of opinion that it is not an order, because it appears, from the nature of the contract
between Mr. Morgan Thomas and the bankers, that the bankers were not bound to
obey it, although, in point of fact, they did obey it. As it is described in the indict-
ment as both a warrant and order, which it is not, I think that the variance is fatal,
and that the prisoner must be acquitted.
Verdict-Not guilty.
Wilson and Davison, for the prosecution.
E. V. Williams and Nicholl Carne, for the prisoner.
[Attornies-W. Davies, and Russell.]
[53] WESTERN SUMMER CIRCUIT, 1845.
Exeter Assizes (Crown Side), before Baron Platt.
July 24th, 25th, & 26th, 1845.
REGINA V. SERVA AND NINE OTHERS.
(An indictment, preferred at the assizes, under the stat. 7 & 8 Vict. c. 2, for a crime
committed on the high seas, need not conclude contra formam statuti. A negro
who was called as a witness, stated, before he was sworn, that he was a Christian,
and had been baptized :-Held, that he ought to be sworn, and that no further
question could be asked of him before he was so. On the trial of Brazilians for
the murder of P., it appeared that a British cruiser engaged in the prevention
of the slave trade manned two boats, and sent them, commanded by a lieutenant
to board the Brazilian ship F. : he did so, and, finding her fitted up for slaves,
but with no slaves on board, took her. After this, the lieutenant in the ship
F. chased the ship E., also Brazilian, and sent a boat with P., who was a mid-
shipman, to board her. She had slaves on board, and was captured, and part
of her crew put on board the F., and left there with the captain and cook of the
F., as prisoners, in charge of P. and some British seamen. Neither the boats
nor the F., after she was taken, had any instructions on board, but the cruiser
had. Such of the crew of the E., as were thus put on board the F., and the cook
of the F., all-Brazilians, rose on P. and the British seamen, and killed them all;
but the captain of the F. would not join in the transaction. It was contended
for the prosecution, that the F. and E. were legally taken under the stats. 5 Geo. 3,
c. 113, and 7 & 8 Geo. 4, c. 74, and the Portuguese and Brazilian treaties as to
slave trading; and that the prisoners were in lawful custody, and the ship F.
(a) In the case of Rex v..Crowther (5 C. & P. 316), it was held that an instrument
may be described, in an indictment for forgery, as a warrant and order for the
payment of money, if the instrument be in fact a warrant and order. That was
in the case of a forged cheque on a banker, which was held to be both a warrant and
order; a warrant authorizing him to pay, and an order on him to do so. In the case
of Reg. v. Gilchrist (C. & Mar. 224), where the prisoner was indicted for stealing four
post-office money orders, which were described in some counts of the indictment as
four warrants and orders for the payment of money, and it was objected that this
description was not correct, because it was uncertain, the fifteen Judges were of
opinion that what was meant by the indictment was, that the prisoner stole four
instruments, each of which was both a warrant and order ; and, putting that con-
struction upon the indictment, they were of opinion, that each instrument stolen
was a warrant and order, and that the counts of the indictment were not unceftain,
meaning that these were instrumentf having both those characters.
REGINA V. SERVA
2 C AR. & K. 52.](ViewImageLocal?handle=hein.slavery/ssactsengr0587&div=1&collection=&method=preview&ext=.png&size=3)