20th February 1793
Reference Numbert17930220-59
SentenceImprisonment > house of correction; Miscellaneous > fine

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254. PHILIP WARNER was indicted for that he, on the 1st of February in a certain Nursery ground belonging to Mary Kirk , William Kirk , and Joseph Kirk ; unlawfully did enter, and take five shrubs called Mazarion shrubs, value 50 s. then and there growing in the said Nursery ground; and being the property

and belonging to the said Mary Kirk , &c. then and there growing, standing, and being; unlawfully, did break, spoil and destroy, against the form of the Statute

Indicted in the second COUNT for feloniously stealing the same goods.

(The Case was opened by Mr. - .)


I am a Nurseryman , I live at Brompton , in the parish of Chelsea; the Nursery belongs to me, my mother Mary Kirk , and my brother Joseph Kirk ; between the hours of half past five on the 1st of February, and half past seven on Saturday morning, the 2d; the property was missed, I was robbed of a quantity of Mazarion shrubs, I had seen them there the night before, in the garden standing, and growing; I missed them on Saturday morning, a little after eight, my brother was the first who missed them.


I am a gardiner, I work for Mr. Kirk I worked for him the 1st of February, I was in the garden all that day before; but I don't recollect seeing the Mazarion roots there; I returned to work a little after six on the 2d of February, it was light; when I came to work in the morning, my master took me up the ground, and I saw the ground all torn to pieces, and the tops of them left on the ground; and some of them found in the other man's ground, the neighbour's.

Q. What time was it you missed these Mazarion plants? - I did not miss them before eight o'clock, they could not be taken away by day light, without our knowing it.

Q. Did you observe that piece of ground? - I cannot say I did.

Q. The question I ask is whether you will undertake to say that no man could come at the place without your seeing it? - I cannot say for I saw nothing particular.


I am a gardener, I work at these grounds, I recollect seeing the Mazarions growing there. On the first of February, I left work at dark, I returned to work the next day as soon as we could see; when I went up to work and came in from breakfast, I missed the shrubs, this might be between nine and eleven o'clock.

Q. Did not you see the place where the Mazarions had been before that time? - Yes, but not at that day.

Q. Had you been at work in the garden all the morning until you missed these shrubs? - I had.

Q. Near to this place where they were taken from? - I cannot rightly tell, we go according to our orders, I cannot certainly be positive.


I keep an herb shop in Covent-garden Market; I saw the prisoner at my shop, on the morning of the 2d of February, about half after six on Saturday morning; he came to my shop before I saw him, I was in bed, and my man called me up, and I saw a bag of mazarian roots in the shop, the prisoner had them to sell, I asked him what he asked for them, he said, he asked one shilling a pound, I told him I should detain him, and the roots, in consequence of information of some nursery grounds being robbed; I asked him where he got them? he said, he got them from a man at Paddington;

I then sent for a constable, and he was taken to Bow-street; the roots were then produced, and Mr. Kirk then brought the tops after some little time, and a great many of them were matched with the roots. (The roots produced, compared, and several of them exactly matched with the tops where they were cut, found in the prosecutor's gardens, and the other gardens, which had no Mazarions growing in it, it being a market garden.

Prosecutor. There is a wall between our garden, and the market garden of eight feet and there was the marks of feet on it.

Q. Did you trace no foot steps in your garden ground, where the tops of the Mazarions were found? - I could, and marks where they jumped down from the wall.

Q. Did you trace any on the opposite side? - I did not that day.

Q. Pray, sir, how many did you lose? - I cannot be positive, there might be seventy, but I can swear to fifty, they were worth about one shilling a plant.

Prosecutor's Counsel to Blackwell. What do you consider the value of these things to be? - The price of the plants is one shilling a piece, but we give one shilling a pound for the roots.

Court to Blackwell. What time did you see the prisoner that morning? - At half past six o'clock, we had lights burning there.

Prisoner to Mr. Kirk. What marks have you got that you can swear to the roots against any other roots.

Court. The marks are these, he does not say, that there are any particular marks on the roots, except that the roots appear to have been cut, and that by putting the top of the Mazarion to the root of the Mazarion, one part agrees and tallies with the other, that is the reason that induces him to swear to them.

Prisoner. That is done since.

Prosecutor. We tried them in the presence of Justice Bond.


I live with Mr. Blackwell. On the 2d of February, I saw the prisoner there, I came in about a quarter after six, I went to my master's home, and got the keys of the shop, and while I was unlocking the shop, this man came to me, and asked me, if I wanted any Mazarian roots? it was dark, he came into the shop, I asked him where they were? and he said, he would fetch them, he brought them into the shop; he said directly, I will be glad if you will dispatch me as soon as possible, he said, a person was waiting in Hart-street for him, says I, as soon as I have got the things out of the shop, I will weigh your roots; accordingly my fellow servant came in, and I sent him over to my master, and my master came.

Kirk. I have known the prisoner at the bar several years, he usually used to work in nursery gardens and grounds, he has worked for me, and he has worked for my father at different times, the last time he worked for me was about ten or eleven months ago, as nearly as possible.

Prisoner. I was coming one morning from my wife, going to my wife's brother in Cold-bath-fields, and coming along the road I picked up this bag of roots by the road side, I brought them to Covent garden; I thought they belong to me as much as any body else; I asked Mr. Blackwell, if he wanted any roots, and when he came, he said, he had information given out by Mr. Grimwood, if there were any thing came they must be stopped.


I am of the King's Road, Westminster; the prisoner worked with me between two and three months before he was apprehended. On the 1st of February he worked at my shop till eight o'clock on Friday evening; I heard no more of him till I heard he was apprehended in Covent-garden; from the time he was with me, he behaved himself in a very honest diligent manner.

The prisoner also called four other witnesses, who gave him a good character.

GUILTY . (Aged 23.)

Imprisoned six months in the house of correction , and fined 1 s .

Tried by the first Middlesex Jury before Mr. Justice GROSE.

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