writer, in which the declarations of the defendant would be evidence; and the depositions having become part of declarations, which could not be understood without them, should have been admitted. Even if relevant, Leavitt's report was secondary evidence, and there should have been notice to produce the copy served on the plaintiff. The verdict is against evidence, and inconsistent with the facts found by the jury; one of which was, that the underwriters had accepted the abandonment.

Cur. adv. vult.

CARTER, C. J., now delivered the judgment of the Court. The rule for a new trial in this case was granted on three grounds. First, for the improper rejection of certain depositions made before a Notary Public, as to the circumstances attending the wreck of the vessel, with reference to which, certain declarations were made by some of the underwriters on the policy. The defendant is sued as Secretary of The Society of Underwriters," under the provisions of 21 Vict. c. 61. The learned Judge rejected these depositions against the inclination of his own opinion, in deference to the urgent pressure of the defendant's counsel; and at the argument it was admitted by Mr. Duff, arguing for the defendant, that such rejection was wrong, if the learned Judge was right in admitting the declarations of the underwriters. This hardly seems to admit of doubt; for if these declarations were made with reference to statements and facts set forth in those depositions, the exact force and bearing of the declarations could not be fully understood without the depositions themselves; and in that view, those depositions could not be considered as irrelevant or immaterial. The real question, therefore, is, were those declarations admissible? But for the provision of the Act which enables the assured to bring one suit against the Secretary, and therein to recover against all the underwriters who have subscribed the policy, the sums for which they have individually made themselves liable, the plaintiff might have sued each of these underwriters in separate actions; and on the trial of such sepa

rate

1861.

DUFFY

against STYMEST.

1861.

DUFFY

against

STYMEST.

rate actions, the declarations of the particular underwriter sued, would clearly have been admissible in evidence. Though we are not prepared to say that such declarations can affect the liability of the other underwriters, yet as the separate liability of each underwriter is tried in the one action against the Secretary, and separate damages are to be assessed against each separately, and separate executions are to be awarded, there can be no reason why, as regards his own individual liability, his own declarations should not be received in evidence. Nor do we think, the fact that a verdict which might be obtained by such evidence, would make the Secretary of the Society (virtually the funds of the Society) liable for the costs, should prevent this. This liability for costs, is one of the conditions on which the Society obtains the convenient and cheap method of trying several actions in one, and cannot be taken to deprive the plaintiff, who is obliged to adopt that method, of the benefit of those rules of evidence which would avail him in separate actions.

The second ground, was the improper admission in evidence of a written report made to the Society by Capt. Leavitt, who was sent to investigate the circumstances of the wreck. We do not see how, per se, this report was in any way admissible; and even if it could have been so, as a document served on the plaintiff, it was not the identical paper so served, nor was any ground laid for its reception as secondary evidence.

The third ground was, that the verdict was against the weight of evidence, and inconsistent with the facts specially found by the jury. As there must be a new trial on the other grounds, it is unnecessary to say anything on this point; though it may be not easy to discover how the authority given to Capt. Leavitt could have amounted to an acceptance of abandonment, and still less easy to discover why, if the jury thought it did, they did not find their verdict for the plaintiff.

Rule absolute.

THE

THE QUEEN against EVELETH.

ment for steal

whose ing goods, alleged to be

of A, the de

that the goods

HE prisoner was indicted for stealing a quantity of On an indictgoods from Messrs. Ennis & Gardiner, in employ she had been. Her defence was, that the goods the property were her own property, and never were the property of fence was, the prosecutors. The jury acquitted her. The prosecu- belonged to tors then applied to have the goods restored to them, the prisoner, under the authority of the 1 Rev. Stat. c. 159, § 21; but were A's property; the learned Judge who tried the cause, having doubts the jury acquitted the about his right to make the order under this finding of the prisoner:jury, reserved the question for the consideration of the mot, J., disCourt,

Held (Wil

senting), that the acquittal

were not the

and therefore,

a case in which

should order

the goods. un

Thomson, for the prisoner, in Easter term last, moved was virtually a finding that that the goods should be restored to her. He contended the goods that the Act never was intended to apply to such a case as property of A, this, where the question of property was grappled with, that it was not and fairly tried out by the jury; nor was it intended to the Judge place the presiding Judge in an antagonistic position to restitution of the jury, as he would be if he made an order to restore der the Rev. the goods to the prosecutors, in the face of the finding of $21, though the jury that they were the property of the prisoner. It he might be of was only where the party indicted, had escaped in conse- the verdict quence of some mistake, or some technicality, and the and that the facts had not been passed upon by the jury, that the Judge fonged to the had power to make the order. How could it "satisfacto-Held,-per "rily appear" to the Judge in this case, that the property that the ver Wilmot, J., belonged to the prosecutors, when the jury had found that diet did not necessarily it did not? It was open to the prosecutors to bring trover establish that the goods did for the goods. not belong to the prosecu

opinion that

was wrong,

goods be

if, notwith

acquittal, the

isfied that the

D. S. Kerr, contra, contended that the power to make tor; and that the order where the prisoner was acquitted, was entirely standing the in the discretion of the Judge; and if, in his opinion, the Judge was satproperty belonged to the prosecutors, he was bound to goods did be make the order, notwithstanding the verdict of the jury. long to the The acquittal of the prisoner was not conclusive as to the was bound to ownership tion.

26

prosecutor, he

order restitu

1861.

ownership of the property. Crosby v. Leng (a). He also referred to Scattergood v. Sylvester (b), and to 1 THE QUEEN Chit. Crim. L. 817, as to the awarding a writ of restituagainst EVELETH. tion for stolen property, under the Statute 21 Henry VIII, c. 11.

Cur. adv. vult.

The following opinions were delivered by the Judges in vacation :

CARTER, C. J. The question here is, what is the power and duty of the Judge, where a party has been indicted and tried for stealing goods, and acquitted, as to ordering the goods alleged in such indictment to have been the property of the prosecutor and stolen by the prisoner, to be restored to the prosecutor. The jurisdiction in such case is entirely founded on 1 Rev. Stat. p. 444, § 21, which is as follows: “If "the owner, or representative of the owner, of any property "stolen, or fraudulently taken, obtained, or converted, by "any person, or received by him knowing it to have been "stolen, shall prosecute such person to conviction, the "same shall be restored to such owner, or representative, "by the summary order of the Court." This authorizes, in case of conviction, the restitution of property stolen from the prosecutor by the person convicted of the stealing. Then follows the provision for restoring property, when the person charged with the stealing is acquitted, which is as follows: "And should it satisfactorily appear that any such property" (i. e. property stolen, &c., from the prosecutor), "though the offender be not convicted, actually belonged "to the prosecutor, or the person represented by him, "the Court may order the same to be restored to such "prosecutor." In the case of acquittal, therefore, the Court must be satisfied, in order to make an order for restitution, 1st, that the property belongs to the prosecutor; and 2d, that it has been stolen from him, or fraudulently taken, &c., or received, knowing it to be stolen. I think the word "may" is to be construed in this section

(a) 12 East, 409.

(b) 15 Q. B. 506.

as

1861.

THE QUEEN

against

as leaving a complete discretion in the Court as to restitution. This was clearly so in the original Act which first gave this power, viz. 1 William IV, c. 15, § 22, which says that in cases of acquittal, the Court may, "if it shall see EVELETH. "fit," order restitution: and the same words are used in the Consolidation Act 12 Vict. c. 30, § 49. In many cases this power might be exercised without hesitation; as, where the evidence plainly shews that the goods belonged to the prosecutor, and had been stolen, but the prisoner was not the thief; but in a case like the present, where the acquittal amounts to the solemn assertion by the jury, on the distinct issues whether the goods were the property of the prosecutor, and were stolen by the prisoner, that one or both of those issues is, in their opinion, favorable to their prisoner, I should hesitate in a matter left, as I think, in the discretion of the Court, to make an order, founded on my own assertion, in direct contradiction to the express finding of the jury on the very same questions. I think it would be clearly within the power of the Judge to do so, but I do not think he is, by the terms of the Act, bound to do so, even although his own opinion may be favorable to the prosecutor on both points.

PARKER, J. I was not present at the argument in banc, but was at the conference of the Judges; and having had an opportunity of considering the question, it may perhaps be proper for me to state my opinion.

Admitting that the Judge has power under the law, to order the goods to be delivered to the prosecutors notwithstanding the acquittal of the prisoner; admitting, also, that the evidence not only warranted conviction, but cannot be reasonably reconciled with any other result, and that the jury ought to have found her guilty; still, the question of guilty or not guilty was one clearly for the jury, and not the Judge; and the Judge could do no more than was done in this case, to impress on them forcibly all the facts and circumstances on which his own mind was led to the conclusion that the prisoner was guilty.

However wrong the verdict, the rule of law is clear: it must stand. Nemo bis vexari debet. Now in this case the

question