IMAGE EVALUATION TEST TARGET (MT-3) 4^ ^ ^. 1.0 1.1 11.25 m ^ Itt 122 S m M2.0 m Si V .% Fhotographic odBDOBS Cc :ii i] n WMT MAIN STRBT 1MMiTM,N.V. l4tW (71«)l7a-4SCIt 4^ ^P" CIHM/ICMH Microfiche Series. CIHIVI/ICMH Collection de microfiches. Cancdian Inttituta for Hiatorical Microraproduction* / Institut Canadian da microraproductiont hiatoriquaa Technical and Bibliographic Notes/Notas tachniquaa at bibliographiquaa to Tha inatituta haa attamptad to obtain tha batt original copy avaiiabia for filming. Faaturaa of thia copy which may ba bibiiographically uniqua, which may altar any of tha imagaa in tha raproduction, or which may aignificantly changa tha uaual mathod of filming, ara chiicitad baiow. D D D D D Colourad covara/ Couvartura da coulaur n~| Covara damagad/ Couvartura andomhfiagAa Covara raatorad and/or laminatad/ Couvartura raataurta at/ou paiilcuite I 1 Covar titia miaaing/ La titra da couvartura manqua Colourad mapa/ Caitaa gtegraphiquaa an coulaur Colourad inic (i.a. othar than blua or biaclt)/ Encra da coulaur (i.a. autra qua blaua ou noira) I I Colourad plataa and/or illuatrationa/ Planchaa at/ou IKuatrationa an couiaur Bound with otlwr matarial/ RaliA avac d'autraa documanta Tight binding may cauaa ahadowa or diatortion along intarior margin/ La re liura aarrAa paut cauaar da I'ombra ou da la diatortion la long da la marga intAriaura Blanic iaavaa addad during raatoration may appaar within tha taxt. Whanavar poaaibia, thaaa hava baan omittad from filming/ II aa paut qua cartainaa pagaa blanchaa ajoutiaa lora d'una raatauration apparaiaaant dana la taxta, maia, loraqua caia Atait poaaibia, caa pagaa n'ont paa M filmAaa. L'Inatltut a microfilm^ la maillaur axamplaira qu'il iul a 4tA poaaibia da aa procurer. Laa dAtaila da cat axamplaira qui aont paut-Atra uniquaa du point da vua bibiiographiqua, qui pauvant modifiar una imaga raprodulta, ou qui pauvant axigar una modification dana la mithoda normala da flimaga aont indiqute ci-daaaoua. n n D n D D D Colourad pagaa/ Pagaa da coulaur Pagaa damagad/ Pagaa andommagtea Pagaa raatorad and/or laminatad/ Pagaa raataurAaa at/ou palliculAaa Pagaa diacolourad, atalnad or foxad/ Pagaa dAcolorAaa, tachattea ou piqutea Pagaa datachad/ Pagaa ditachAaa Showthrough/ Tranaparanca Quality of print varias/ QualitA inigala da I'impraaalon Includaa aupplamantary matarial/ Comprand du material auppMmantaira Only aditlon ava^labla/ Sauk* Mition diaponibia Pagaa wholly or partially obacurad by arrata siipa. tiaauaa, ate, hava baan rafilmad to anaura tha baat poaaibia imaga/ Laa pagaa totalamant ou partiallamant obacurciaa par un fauillat d'arrata, una palura, ate, ont *t* fllmAaa A nouvaau da fapon i obtanir la maillaura imaga poaaibia. Tl PC of fil Of ba th •i< ot fir •!< or Th ah Til w» Ml dif •n bai rig rac Additional commanta:/ Commantairaa aupplAmantairaa: Irregular pagination. Thia Itam la filmad at tha raduction ratio chaclcad balow/ Ca document aat fllmA au taux da rMuction IndiquA ci-daaaoua. 10X 14X 18X 22X 28X 30X X 12X 16X aox MX 2tX 32X • Itails • du lodifiar r una Imaga Tha copy filmad hara haa baan raproducad thanka to tha ganaroaity of: University of Alterta Edmontcn Tha imagaa appaaring hara ara tha baat quality poaaibia eonaidaring tha condition and lagibility of tha original copy and in icaaping with tha filming eontraet apaclf icationa. Original copiaa in printad papar covara ara filmad baginning with tha front covar and anding on tha laat paga ¥vith a printad or illuatratad impraa- •ion, or tha baeic covar whan approprlata. All othar origiral copiaa mn filmad baginning on tha firat paga with a printad or illuatratad impraa* •Ion. and anding on tha laat pagt with a printad or illuatratad impraaaion. Tha laat racordad f rama on aach microficha shall contain tha symbol —«^( moaning "CON- TINUED"), or tha symbol ▼ (moaning "END"), whiehavar appiiaa. L'axamplaira filmA fut raproduit grica k la gAnArositA da: Univartity of Aibtrta Edmonton Las imagas suivantas ont «ti raproduitas avac la plus grand soin. eompta tanu da la condition et do la nattat* da l'axamplaira film*, at •» eonfarmit* avac las conditions du contrat da filmaga. Laa axampliiiraa originaux dont ia couvartura Bn papiar aat imprimAa sont fiimte w^ commandant par la prmmimr plat at an tarminant soit par ia darnlAra paga qui comporta una amprainta d'impraaaion ou d'illustration. soit par la sacond plat, salon la cas. Tous las autras axampiairas originaux sont fiimAs an comman9ant par la pramlAra paga qui comporta una amprainta d'ir/tpraaaion ou d'illuatration at an tarminant par la darniira paga qui comporta una taiia amprainta. Un daa symbolaa suivanta spparaftra sur ia darniira imaga da chaqua microficha. salon ia cas: la symbols *^ signifia "A SUIVRE", ia symbolo ▼ signifio "FIN". IMapa, platoa. charta, ate., may ba filmad at diffarant raduction ratioa. Thoaa too larga to ba antiraly ineludad in ona axpoaura ara filmad baginning in tha uppar laft hand cornar. laft to right and top to bottom, aa many framaa aa raquirad. Tha following diagrama illuatrata tha mathod: Laa cartaa. planchas. tablaaux. ate. psuvant fttra film«a A daa taux da reduction diff«rents. Lorsqua la documant aat trop grand pour Atra raproduit w un saul ciich*. il «st film* A partir da i'angia supAriaur gaucha. da gauche A droita. at da haut an baa. an pranant ia nombra d'imagas nAcaaaaira. Laa diagrammas suivants illuatrant ia mAthoda. irrata to palura, nA D 32X 1 2 3 1 2 3 4 5 6 MiH mi I r .. •i'T-i^y: CASES, CHIEFLY RELATING TO THE CRIMINAL AND PRESENTMENT LAW, RESERVED FOR CONSIDERATION, AND DECIDED BY THE TWELVE JUDGES OF IRELAND, FROM MAY, 1822, TO NOVEMBER, 1840. BY ROBERT JEBB, ESQ, BARRISTER AT LAW, FIRST AMERICAN EDITION, WITH REFERENCES BY JOHN WILLIAM WALLACE. PHILADELPHIA: T. & J. W. JOHNSON, LAW BOOKSELLERS, SUCCESSORS TO NICKLIN AND JOHNSON, NO. S MINOR STREET. 1 842. »j«8»«888a^»^B^ L. R. Bailky, Printer, 26 N. Fifth St. Philadelphia. LIBRARY UNIVERSITY OF ALBERTA PREFACE TO THE AMERICAN EDITION. The favour which has been given to the American Edition of the English Crown Cases, induces the republishing of a similar Work lately issued from the press of Dublin. From the want of a Reporter, probably, it has happened that the merits of the Common Law Judges of Ireland have not hitherto been much known beyond the limits of their jurisdiction. The present volume may serve to show that the appointment of these Judges has been directed by the same discrimination, which in less than forty years has given to another department of Irish Law the services of Redesdale, of Manners, and of Sugden — names, than which, the Jurisprudence of England and of our own country know none more authoritative. It naturally suggests itself, as we look at the multiplication of Reports which is taking place around us, that another half cen- tury will probably work a change in the matter of juridical cita- tions. We have, perhaps, in some sort lost sight of the proper object of citation.* We would seem no longer to cite cases as authorities — as showing that a point in issue has been adjudged by a court whose judgment puts an end to further question. We adduce them, rather, as the civilians of old did their Responsa • See 1 Black. Com. 69. -ee44±8*- IV Prudentum, and ns giving a position whatever strength it nnay derive from having been concurred in by persons of some official station, el.«evvhere, or at some other time. Instead of this pano- ramic display of cases decided by tribunals of any grade, and in every place — often ill considered, conflicting with one another, and not unfreqiiently over-ruled by the same authority which de- cided them — is it not likely that ere many years the Bench will ask to hear more exclusively the judgments of courts of last resort? Will not Judges be forced to seek relief from the array of num- bers in the strength of authority? or, by recurring more to prin- ciples, regard as less important the varied and ever varying illus- trations of them? it No authority in the law can exceed such as is furnished by reports like Mr. Jebb's. The law as laid down by Twelve able Judges, who, after hearing a case well argued, have consulted, deliberated, and, in the last resort, decided, must be regarded as of controlling authority. In addition to this, Mr. Jcbb^s style of reporting is very good. His statement of the case is clean and orderly; the arguments on both sides are well presented; his ma- terials are said to be of the " very highest authenticity," and the judgment of the Court is generally unanimous. The Judges ap- pear, besides, to have been in correspondence with the English Judges, and to have been sometimes assisted by them. 'I It may, perhaps, be thought by the reader, that many of the decisions, being upon statutes of local application, must possess but local value. The same remark might, however, be made of nearly all modern reports, and not less in regard to those of most States of our Union, than of the English reports. In the present volume, it will be found, that wilh the construction of a statute, the decision of a principle is often connected, and it is known, that in our American penal enactments, we have often drawn the principles, and sometimes the language of our statutes, from the legislation of Great Britain. The references in this edition arc principally to the " Croim Cases Reserved" of i?«sse// J^^ Ryan, and of Mr. Moody— ihe only reports of criminal cases which seemed to me to possess more authority than the volume of Mr. Jebh. References will, however, be also found 'o Russell on Crimes and Roscoe on Criminal Evidence, as recently edited by my friend Mr. Siurswood, of this Bar. These books have become standard text-books on Criminal Jurisprudence, and the American authorities relating to their various subjects are collated in them in a manner which super- sedes the power of doing it better here. The Reports of Russell ^ Ryan, and of Moody, have been lately republished by the Messrs. JoHNSoY of this city, and form the first two volumes of a series which, under the title of British Crown Cases, it is, I understand, their purpose to continue. The present volume forms the third of this series. J. W. WALLACE. & E. corner of Walnut Sf Sixth Sis. April 2m, 1843. PREFACE. The delay which has occurred in the publication of the follow- ing Work, since the first advertisement of it, has not been owing to the Editor, but to the intervention of impediments which ho could not have foreseen. The materials from which it has been compiled are, though somewhat scanty, of the very highest authenticity. In the few instances in which the Editor has been enabled to furnish at any length the reasons upon which the decisions were founded, his information has been derived from notes made by the late Mr. Justice Jebb; an advantage which ceased upon the death of that learned Judge in 1834. -. The Criminal and Presentment Laws have undergone such frequent and important changes within the last few years, that it was a matter of great perplexity in several instances to determine whether particular cases should be rejected from this publication, as having been decided on statutes either expressly or impliedly repealed, or should be retained, as applicable to the provisions of the new laws, which are in so many instances re-enactments (with slight variations) of the old. Several cases have accord- ingly been excluded, as palpably useless under the present law; and others have been retained, which perhaps it may be thought should have been excluded ; but considering the dearth of autho- Vlll ritics upon the Irish Criminal and I'rcsontmont Laws, (cspccinlly tlio latter,) it wns thought unndvisnblo to reject any case which, thougjj dociclcd on an obsolete statute, niigiit possibly bear upon enactments now in force. The reader's attention has, whenever it appeared necessary, been called by notes to the distinctions between the present and the former law. The cases relating to the Registry of Voters under the Reform Act have been omitted, as Mr. Jllcock has already given them to the public. For a similar reason none of the decisions upon Civil Bill Appeals, except those of very recent date, have been inserted in this publication. With respect to the arrangement of the cases, it was found impracticable to attempt any other classification than the chronological; but the index at the end of the volume will make a reference to any of the subjects easy and expeditious. Dublin, May, 1841. > (cspocinlly :«so which, ■ bcnr upon , whenever distinctiuns the Reform ^cn them to 1 upon Civil sen inserted f the cases, lassification the volume expeditious. I JUDGES AND LAW OFFICERS, DURING THE PERIOD OF THESE REPORTS, WITH THE DATES OF THEIR PATENTS, JUDGES OF THE COURT OF QUEEN'S BENCH. RuiiiT Hon. CiiAiiLEs Kendal Bushr, C. J., (February 20, 1822). Hon. Richard Jebd (December 1, 1818), Hon. Charles Burton (December 2, 1820). Hon. Thomas B. Vandeleur (March 4, 1822). Hon. Philip Cecil CRAHirToN (October 21, 1834). Right Hon. Louis Pehbin (August 31, 1835). JUDGES OF THE COURT OF COMMON PLEAS. Rioht Hon. Lord NoRnuRT, C. J., (December 20, 1800). Right Hon. Lord Plunket, C. J., (Juno 18, 1827). RiaiiT Hon. John Doiierty, C. J., (December 23, 1830). Hon. Arthur JMoonr. (July 2.1, 181G). Hon. William Johnson (October 2.5, 1817). Hon. Robert Torrens (July 10, 1823). Right Hon, Nicholas Ball (February 23, 1839.) B BARONS OF THE COURT OF EXCHEQUER. Right Hon. Standisii O'Gradv, afterwards Lord Guillamore, C. B., (October 14, 1805). Right Hon. Henry Jov, C, B., (January 6, 1831). Right Hon. Stkphkn Wqulfk, C B., (July 20, 1638). Right Hon. Maziere Brady, C. B., (1840). Hon. Sir William C. Smith, Bart., (December 27, 1801). Hon. James M'Clelland (November 4, 1803). Hon. Richard Pennefatiier (February 1, 1821). Hon. John Leslie Foster (July 13, 1830). Right Hon. Michael O'Loohlen (November 10, 1836). Right Hon. John Richards (February 3, 1637). Right Hon. Right Hon. Right Hon. Right Hon. Right Hon. Right Hon. Right Hon. Right Hon. Right Ho: . Right Hon. ATTORNEYS GENERAL. William C. Plunket (January 15, 1822). Henry Joy (June 19, 1827). Francis Blackburne (January 11, 1831). Louis Perrin (April 29, 1835). Michael O'Loohlen (August 31, 1835). John Richards (November 10, 1836). Stephen Woulpe (February 3, 1837). Nicholas Ball (July 11, 1838). Maziere Brady (February 23, 1839). David R. Pigot (1840). SOLICITORS GENERAL. Henry Joy, Esq., (March 1, 1822). John Doeierty, Esq., (June 18, 1837). Philip C. Crampton, Esa., (December 23, 1830). Michael O'Loghlen, Esq., (October 21, 1834, and April 29, 1835). Edward Pennefatheh, Esq., (January 27, 1835). John Richards, Esq., (September 21, 1835). Stephen Woulfe, Esq., (November 10, 183G). Maziere B^.ady, Esq., (February 3, 1837). David R. Pigot, Esq., (February 11, 18.39), Richard Moore, Esq., (1840). TABLE OF CASES. A. Adams and Langton's Case (Practice) Anonymous (Parly Processions' Act) Antrim Presentment (Burning Petition) - (Seneschal) - Armagh Presentment (Burning Petitions) • (Selection of applications) Attorney General v. Wilson (Costs) PAGE. 135 155 144 239 182 141 313 B. Barran and Murphy's Case (Variance) - Barrett's Case (Jury. Practice) - Beard's Case (Larceny by finding and conversion) Brady and Cooney's Case (Variance) Browne's Case (Venue badly laid) Bryan's Case (Confession. Evidence) Butler, Murphy v. (Replevin) 245 103 257 21 157 320 c. Cahill's Case (Burglary) . - . . Carlow Presentment (Lunatic Asylum) (Malicious injury) Carroll's Case (Whiteboy offence) Casey and M'Cue's Case (Evidence. Accomplice) 3G 188 180 78 203 n f I xu TABLE OF CASES. Cavan Presentment (Coroners) (Court House) (Jurors' Books) (Inspector of Gaol) ■ (Surgeon of Gaol) (Ollicers' Fees) Charleton's Case (Bigamy. Evidence) Charters v. Gilroy (Assistant Barristers) - Clare Presentment (Infirmaries) - (Medical Witnesses) - (Officers' Fees) Connor's Case (Common Law. Variance) - Cork Presentment (Admiralty Commission) ■ (Court House) - Criers' Fees (In the matter of) Crone's Case (Promissory notes) - Cushlan's Case (Uttering a forged note) - D. Deleany's Case (Manslaughter. Practice) - Delony's Case (Road Traverse) - Delany and Cheevers' Case (Jury Practice) Dencny's Case (Chattels) - - - Deserted Children (Presentments for) Dogherty's Case (Manslaughter) - Donagher's Case (Practice. Privilege) Donegal Presentment (Affidavit) - Doolin's Case (Evidence. Witness) Down Presentment (Traverse) Drogheda Presentment (Gaol Ollicers) Dwyer's Case (Variance. Practice) PAGE. 211 45 210 95 86 288 2G7 319 274 . 247 272 150 97 117 3.3 47 113 88 40 106 255 184 66 241 27 123 20 194 198 TABLE OF CASES. Xlll PAGE. 211 45 210 95 80 . 288 . 207 . 319 . 274 - 247 ■ 272 . 150 - 97 ■ 117 . 33 - 47 - 113 - 88 - 40 - 100 - 255 - 184 - 06 - 241 - 27 - 123 - 20 - 194 - 198 Fermanagh Presentment (Fees on Traverses) (Notice of Traverse) Fitzmaiirice's Case (Pleading) Flannory's Case (Pleading) Fulton's Case (Intent to utter) G. Galvvay Presentment (Burning) (Excise) Gaynor's Case (Evidence. Perjury) Getty's Case (Variance) - - - GilMiey's Case (Evidence. Confession) Gilroy, Cliarters v. (Assistant Barristers) - Gourlay's Case (Embezzlement) - Green's Case (Forgery. Pleading) H. Hartnctt and Casey's Case (Practice) Ileflernan's Case (Affidavit) Iloulton's Case (Evidence. Husband and Wife) I. Inspectors of Weights and Measures Jackson's Petition (Robbery) Jones's Case (Averment as to time) K. Keefe's Case (Pleading) Kelly's Case (Pleading) PAGE. 222 •.i2l 29 243 48 71 100 202 59 15 319 82 282 302 2 24 174 203 72 6 29U in 11 I! XIV TABLE OF CASES. PAGE. Kerry Presentment (Dispensaries, &c,) - - - 277 Kildarc Presentment (Bridge Contractors) - - 130 (VVciglits and Measures) - - 174 Kilkenny Presentment (Roads) .... 192 King's Co. Presentment (County Surveyor) - - 170 Kinsley's Case (Confession) - - - - 67 L. Larkin's Case (Variance and Practice) - - - 60 Lavcry, Orr v. (Practice) .... - 280 M. Maguire's Case ("opcal of statute) - - - 133 Mara's Case (Evidence. Handwriting) - - - 75 Mayo Presentment (Boards of Ilcallh) - . - 171 (Shannon Commission) - - 323 M'Bennet and Kernigan's Case (Stealing) - - 148 M'Clusky's Case (Deserter and Vagrant) - - - 102 M'Cue's Case (Evidence. Principal and Accessary) - 120 M'Dermod's Case (Statutory Riot) - - .118 M'Kearney's Case (Burglary. Breaking) - - - 1)9 Meany's Case (Escape) ..... 249 Meath Presentment (Bridge Contractors) - - - 139 — (Vagrants) - - - .289 Monaghan Presentment (Medical OfTicers) - - 217 • (Registering Arms) - - 1 1 1 Moore's Case (Burglary) - - - - 37, note Moran's Case (Witness. Practice) - - - 91 Murphy's Case (Principal and Accessary) - .315 Murphy in replevin, v. Butler .... 320 I k WH PAGE. 277 189 174 192 176 67 60 280 - 133 - 75 - 171 . 323 - 148 - 162 - 120 - 118 - 99 - 249 - 139 - 289 - 217 - Ill 37, note ' 91 - 315 - 320 TABLE OF CASES. N. Noonan's Case (Discretionary Punishment) O. Orr V. Lavcry (Practice) - Oulaghan's Case (Practice. Discharging Jury) P ;|^ Pettit's Case (Common Law. Variance) - ■ Prendergast's Case (Perjury) Prosecutors' expenses (In the matter of) - — (Clerk of the Crown's Fees) Q. Queen's Co. Presentment (Defauhing co'.Iectcr) - (Dispensaries) - ■ (Government Advances) ' — (Road Traverse) R. Rcilly's Case (Larceny. Bailee) - l^ Reserved Cases (Counsel) I • (Decisions upon) - i Robbery Petition - - . . . Robinson's Case (Evidence) Rogan's Case (Highway Robbery) Roscommon Presentment (Roads) Rossiter's Case (Statutory Larceny) Ryan's Case (Evidence. Party to Record) S. Sandys's Case (Evidence. P.Iinutes) XV PAGE. 108 280 270 151 64 42 41 231 130 235 40 51 1 234 202 280 02 172 50 160 XVI TABLE OF CASES. Shnnnon's Case (Common Law. Variance) Slicchan's Case (Evidence. Accomplice) - Southwell, in re (Practice) Staploton's Case (Husband and Wife. Coercion) Strabane Presentment (Pro|)cr time of) Stonage's Case (Evidence. Minutes) PAGE. 54 KM 93 145 Tierncy's Case (Perjury) - Tippcrary Presentment (Division of County) '(Printing) - (Roads) - Tyrone Presentment (Dungannon) ■ (Strabane) - (Defaulting Treasurer) - 179 - 310 101, 254 - 307 - 147 - 145 - 224 W. Walsh's Case (Evidence. Handwriting) - - - 38 Westrneath Presentment (Bridge) .... 295 Wicklow Presentment (Contractors) - . - 191 (Infirmary) . . - 102 (Medical Officers of Bridewells) - 44 Medical Officers of Gaols) . - 43 Willis's Case (Utterance of Base Coin) - - 48, note Wilson, Attorney General v. (Costs. Proof) - - 313 Woods's Case (Evidence. Uttering) . . - 115 MEMORANDUM IN THE DUIJLIN EDITION. No Act lins yet been passed (in conformity with tlic Bill inentionecl in page 182, note) extending tho G &. 7 VV. 4, c. IIG, to tlie County and County of the City of Dublin. PAGE. . 200 MH . 54 - 104 - 93 1 - 145 - 1^1 - 179 - 310 101, 254 i - 307 ; - 147 ^ . 145 i - 224 .wo - 38 - 295 f - 191 ».! - 102 M - 44 m - 43 m 48, note m - 313 m 115 CASES RESERVED FOR CONSIDERATION, AND DECIDED IN THE KING'S BENCH CHAMBER. ci in page 182, of the City of RESOLUTION OF THE TWELVE JUDGES OF IRELAND AS TO HEARING COUNSEL ON RESERVED CROWN CASES, (o) At a meeting of the twelve Judges in Hilary Term, 1826, it was agreed, that the English practice should be adopted of hearing counsel on reserved crown cases, when the Judge who tried the case should desire it. For the purpose of ascertaining the English practice, Bushe, C. J., wrote to the Lord Chief Justice of Eng- land, who informed him of the particulars of that prac- tice. The summary of it is, that if the Judge who reserved the case thinks it of such a nature that counsel should argue it, it generally is argued by one counsel on each side; the argument is in open court, but the Judges do not deliver any opinion in court; the opinion is made known by the Judge who presides at the next assizes or sessions, as in cases where counsel are not heard. («) Extracted from a MS. notebook of the lute Mr. Justice Jebl-. (See post. p. 234.) I » f «0 JEBB'S RESERVED CASES. [May * THE KING V. HEFFERNAN. An indictment under tlic 27th G. 3. c. 15, s. 10, will be sustained by evidence of BU|)plying ammunition to a person wlio only pretended to get it for the use of the Whitcboys. 'i; The prisoner was tried before M^ CMland, B., at a spe- cial commission held in the City of Cork, in February, 1822, upon an indictment founded upon the 10th section of the 27 G. III. c. 15, for supplying ammunition con- trary to the provisions of that act («). The first count charged that divers ill-disposed persons had confederated and agreed feloniously to seize forcibly all arms belong- ing to his majesty's faithful subjects, and that the pri- soner feloniously did knowingly and voluntarily supply to one William Fleming 14 pounds of gunpowder, bul- lets and flints, for the purpose of assisting said confede- rates in the execution of said offence. The second, third, fourth, fifth, sixth, seventh, and eighth counts, varied from the first only in the statement of the objects of the confederacy, viz. to levy contributions from his majesty's subjects, and to cause by threats arms to be delivered; and the ninth, tenth, eleventh, and twelfth (fl) This enactment is still in force, as far as relates to the offence of supplying ammunition; tliough that part of the same section which relates to the seizing of arms, or levying contributions, is repealed by 1 tSt 2 VV. 4 c. 44. (Sco Rex v. Ma- guire, post.) 1822. REX r. HEFFEUNAN. counts charged, that the prisoner supplied Fleming with the powder, &c., for the purpose of assisting di\ ers ill- disposed persons to seize arms, to levy contributions, &c. by evidence of )r the use of the ., at a spe- February, 0th section nition con- first count )nfederated ms belong- at the pri- :ily supply )wder, bul- id confede- he second, ith counts, the objects s from his arms to be ind twelfth ICC of supplying to the seizing of (Sco Rex V. Ma- It appeared in evidence on the trial, that the country was in a disturbed state, and tl. t the magistrates of Cork and its vicinity, suspecting the prisoner to be engaged in selling gunpowder to the Whitehoys, employed Fleming * to apply to the prisoner for gunpowder, which [*3] he accordingly did, calling at the prisoner's shop at nine o'clock at night, for that purpose. The prisoner asked him for what purpose he wanted the powder, and he answered, "for the use of the Whiteboys.^^ He then got from the prisoner two pounds of powder, and agreed with him for a cask for the use of the Whitchoijs. In a second interview, the prisoner said it would be danger- ous to give a cask of powder, and he therefore gave Fleming 14 pounds in different parcels, and some bullets and flints. Upon these two occasions the prisoner sug- gested to Fleming the expediency of forming committees to superintend the business of the Whiteboys, and to take measures for a general rising. G'Connell, for the prisoner, contended that on this evidence no conviction could take place, for that to con- stitute the crime laid in the indictment it is not sufficient that the prisoner should have supplied the ammunition with intent to aid the Whiteboys to commit the offences specified in the act, or some of them ; but the per.son T JI'}DU'S RESERVED CASES. [M.y who received said ammunition must also have agreed and have intended to use and apply the ammunition to siieli purpose ; and that in this case although the jury- should be of opinion that the prisoner supplied the am- munition witii the view and purpose laid in the indict- ment, yet as Fleming never agreed or intended to apply the ammunition to such purpose, the jury ought to be directed to acquit the prisoner. The learned Baron, With the approbation of Mom'e, J., (who was associated v/ith him in the commission,) told the jury, that before they could convict the prisoner, they must be satisfied, first, that such confederacy existed as was laid in the [*4] indictment, and secondly, that *the prisoner, know- ing of such confederacy, did supply the ammunition to Fleming for the purpose of aiding and assisting the con- federates in the execution of the offences, or some of them, laid in the indictment; that in his opinion the assent or agreement of Fleming to such purpose was not necessary to complete the crime of the prisoner, but that his criminality must depend on his ow?i acts and inten- tions; and that if they were satisfied that the prisoner supplied the ammunition to Fleming with the view and for the purpose of assisting the Whitehoys to commit any of the offences laid in the indictment, they ought to find liie prisoner guilty, although they were satisfied Fleming never intended or agreed to apply the ammu- nition to any such purpose. The jury found the pri- soner guilty, and the learned Baron reserved for the opinion of the Judges the question as to whether his I [May ive agreed unition to I the jury sd the am- the indict- i to apply ight to be 3d Baron, associated hat before 3 satisfied, aid in the ler, know- unition to ig the con- )r some of wnion the se was not r, but that and inten- e prisoner view and commit Y ought to B satisfied he ammu- i the pri- id for the lether his }833.] REX p. HEFFERNAN. directions to the jury were right in point of law, or whe- ther he should have directed them as required by the counsel for the prisoner. The TWELVE JUDGES unaiiii.iously ruled that the con- viction was legal, and that tlie case was within the sta- tute. They held that the word " purpose" in sec. 10, meant " intent" or " design" of the person supplying the ammunition, and that "supply" meant "give" or "furnish;" and that it was not necessary that the per- son receiving .should concur in the purpose, nor that the purpose should be completed. JEnD'8 RKHERVRD CASES. [Moy * THE KING V. RYAN AND OTHERS. A man jointly indicted witli otliuri), and wlio linN pleaded not guilty, cannot Ix) a witness for the proBecutiun, wliiliit liia plea stand*. At the Dimdalk Summer Assizes in 1821, Peter Cod- dinr/ton, John Ryan, and Owen Matthews, were jointly indicted for burglary, and at the same assizes tliey were respectively arraigned, and severally pleaded not guilty; their trial however was then postjjoned on motion on the part of the Crown. At the Spring As- sizes in 1822, the trial came on before Johnson, J., and John Ryan and Owen Matthews only were given in charge, and the jury were sworn on the issue joined by them with the Crown. After the prosecutor had been examined, Peter Coddington, whose plea of not guilty had not been withdrawn, was produced as a witness for the Crown. He was examined, and the prisoners then on trial, Ryan and Matthews, were found guilty. The learned Judge respited the judgment, until the Judges should have determined the question as to the competency of Coddington as a witness. It was unaiimously held by eleven judges (Vande- LEUR, J., being absent from illness) that the conviction was bad, and that the witness ought not to have been received. It was agreed, that no case could be found, [May 1899.] REX V. RYAN AND OTHERS. s. !ty, cannot bo a Peter Cod- ero jointly sizes they leaded not tjjonej on Spring As- 'on, J., and B given in 5 joined by r had been not guilty I a witness i> prisoners ind guilty. , until the in QB to the where an accomplice, he being himself comprised in the same indictment, and his plea of not guilty remaining of record, had been admitted as a witness. The objec- tion appeared to Jedb, J., to rest, not so much on the incompetency of the witness, as on a rule of practice, adopted partly from analogy to the doctrine of approve- ment, and partly on this ground, that being a party to the record, he shall not be examined, while the record, so far as it concerns him, is * undecided. The [*(>] following authorities were discussed and considered: 1 Hale's P. C. 303; Cas. Temp. Hardw. 154; 2 Camp. 333, note; 5 Esp. 154; 1 Strange 663; 8 East, 41; 2 B. Moore, 9; 8 Taunt. 139; (4th E. C. L. 48); 7 T. R. 610; Bull. N. P. 308; 2 Hawk. P. C. c. 46, ss. 90, 91. At the ensuing Summer Assizes, Jebb, J., delivered I the opinion of the Judges, and further declared their opinion that the prisoners should not be indicted af^ain for this crime, their lives having been once in jeopardy. ss (Vande- convicticn have been 1 be found, T JEBB'S RESERVED CASES. [May 32 :<;!. The KING, at the Prosecution of the Governors of the ROYAL HOSPITAL, V. MICHAEL KEEFE. An indictment under the 46 G. 3, c. 69, b. 8, for personatinif J. H. (a deceased person) "tlie said J. H. being tlicn and tiiere a person supposed to be entitled," (or, "being a person entitled,") "to & certain pension," is bad. Semhle, that a good indictment might be framed for personating a deceased man in order to receive a pension, although the person applied to for the pension knew that the party personated was dead. The first count of the indictment, which was founded upon the 46 G. III. c. 69, s. 8, (a) charged that the prisoner, "on the 10th of October in the second year of "the reign, knowingly and feloniously did personate "and falsely assume the name and character of one "Jeremiah Heahj, the said Jeremiah Heahj being then " and tliere a person supposed to be entitled to a certain " pension, allowance, and relief, to wit, a pension, &c. "at the rate of Is. l^d. a day, as a soldier, theretofore " in the service of our Lord the King, to wit, in the 12th " [*7} Veteran Battalion, who * had theretofore been " entitled to his discharge, and been discharged by rea- " son of the expiration of the period of service fixed by " his majesty's orders for the soldiers in the said batta- "lion, to wit, at, &c., in order to receive the same " pension, allowance, and relief, in contempt of our said " Lord the King and his laws, against the peace, and " the statute in such case," &c. (a) This net is no longer in f ir<;o; but siniilur provisions arc contained in the 7 G. 4, c. 16, s. 38, and tlic 2 W. 1, c. 53, s. 41). [May 22 1822.] REX V. MICHAEL KEEFE. ihe ROYAL ■ H. (a deceased to be entitled," Setnhle, that a man in order to n knew that the as founded id that the )nd year of L personate !ter of one being then to a certain 3nsion, &c. theretofore in the 12th tofore been ^ed by rea- ce fixed by said batta- I the same of our said peace, and coutttiacd in tiic The second count stated Jeremiah Heahj to be a ''person entitled to a certain pension of £5 2s. A\d. " being for a certain number of days, to wit, ninety-one " days, from the 25th of September, to the 24th of De- "cember, 1821, at Is. Ud. per day." The third count was the same as the first, except that it stated the intent to be, "in order to receive a part, to wit, a sum of £5 " 25. A\d. part of the said last-mentioned pension, &c., "and which part was then and there payable in " advance, that is to say, for and on account of a cer- "tain number of days, to wit, ninety-one days, from "25th September, to 24th December, 1821." The trial came on before Lefroy, Serjt., at the Spring Assizes for the City of Cork in 1822; and the prisoner having been arraigned, and pleaded not guilty, it was proved that a pension had been granted to Jeremiah Heahj, and a pension bill issued from the Paymaster's Office to the Post-office at Cork, directed to Jeremiah Heahj; that the prisoner had applied for it to the Post- master, representing himself to be Jeremiah Healij, who was proved to be dead at the time of the application. The Post-master, at the time of the application, was aware that Healt/ was dead, and that a person intended to apply for the pension in his name; and therefore, when the prisoner had made * his application, and [*8] had answered the necessary questions, he had him arrested. hi JEBD'S RESERVED CASES. [May The prisoner was found guilty, and tiie learned Serjeant, at the request of the counsel for the Crown (the prisoner being undefended), -eserved for the con- sideration of the Judges the question, "whether, inas- " much as the pensioner Jeremiah Heahj was dead when "the prisoner applied for the pension bill under his " name, he was guilty of personating a person within " the meaning of the act of parliament of 46 G. 3, o. " 69, s. 8." It was unanimously held by the eight Judges who were present {ahsentibus O'Grady, C. B., Smith, B., and Vandeleur and Joiinson, J. J.), that upon the form of this indictment, all the counts of which repre- sented Heahj to be alive, the conviction was bad; but they expressed a strong opinion, that a good indictment might be framed under the statute, in a case where a deceased man was personated (a), and that although the party personated was known to be dead at the time of the application, by the person applied to by the prisoner. (o) See Rex v. Fitzmaurice, post 20, where a conviction was had on a count " thut the prisoner did personate anotiicr person, to wit, &c. supposed to be entitled, &c. and did so personate in order to receive," &c. See also Rr.x v. Martiii, Russ. &, Ry. 324; and Rex v. Cramp, id. 327, where convictions were liad on a similar statute, on properly framed indictments. [May he learned the Crown for the con- ether, inas- dead when under his •son within 46 G. 3, 0. Fudges who Smith, B., it upon the ^hich repre- as bad; but L indictment ;ase where a at although I at the time i to by the 1822. REX j>. BEARD, s had on a count )oscd to be entitled, '.X V. Martiii, Russ. i liad on a similar * THE KING V. BEARD. A person finding a draft upon a banker, and tendering it for payment with the intention of converting the proceeds to his own use, knowing at the time that ho is not the person entitled to receive tlic amount, is guilty of felony. "Draft and order for payment of money" is a sufRcient description within the meaning of a statute which makes the stealing of a warrant Cor payment of money, felony. In this case the following Report was sent by Sir Jonas Greene, Recorder of Dublin, to the Judges. "Upon the 26th of April, 1822, John Beard was con- victed before me as Recorder, and Messrs. Trevor and Nugent, Aldermen, upon an indictment charging him with having feloniously stolen a draft and order for the payment of £100, concluding against the Statute; and the question shortly is, whether, under the circum- stances which appeared in evidence, and as hereafter detailed, the offence of the prisoner amounted to a felony. " Robert King swore that he was a student of Trinity College, that he had received from his mother, for the purpose of collection, a draft for £100 upon Finlai/s bank, drawn payable to himself or bearer; that on the morning of the 17th of April then instant, he left the college with the draft, and in order to receive the amount of it; that he had the draft in one of the pockets of his pantaloons; that there was another paper in tlie same pocket loose and detached from the draft: tliat the JEBB'S RESERVED CASES. [June 28 pocket was buttoned ; that on leaving the College there was some crowd befoi-c the College railing, through which crowd he passed; that in his way to the bank he missed the draft, the pocket however continuing buttoned, and the other paper remaining in the pocket; that he could not say lie felt any liand at, or pressure upon, or towards the pocket. That on missing the draft he went immediately to the bank, and gave direc- tions that if presented for payment it should be stopped. [*10] " Robert Law, one of tlie Firm of the Banking House of Finlay and Company, swore to the facts of Mr. King calling at the bank, and giving the directions above- mentioned : he further stated, that in a very few minutes after Mr. Kin(fs call at the bank, the prisoner appeared there, and presented to him, (witness) the draft for payment : that after looking at it, he asked the prisoner whom he got it from, and the prisoner's answer was, from Mr. King ; that on witness's making some remark as to the falsity of this statement, the prisoner then said he had received it from a gentleman at the post-office whom he did not know, who desired that he, the pri- soner, would rcvieive the amount of the draft for him, and that he would give prisoner a compensation for his trouble. The draft was duly identified. The prisoner called no witnesses. ■r:''i "In my charge to the jury I directed them in the first place to consider whether the draft was stolen from [June 28 [lejie there r, through I the bank 3ontinuing he pocket; r pressure lissing the nrave direc- be stopped. le Banking facts of Mr. [ions above- BW minutes jr appeared e draft for he prisoner nswer was, >me remark iv then said post-office le, the pri- ift for him, ition for his he prisoner tiem in the I stolen from REX V. BEARD. 10 Mr. King, and I added, that if such was their conclu- sion upon the evidence, the case would be the common and familiar one of stolen property found instantly after the fact upon the prisoner, and unaccounted for; and thai with respect to the law in such a view of the trans- action, there could be no difficulty. But if they should come to a different result upon the evidence, and be of opinion that the draft was not stolen from, but dropped by, Mr. King, and that the prisoner acquired the ori- ginal possession innocently; then I directed them to consider whether the prisoner, with a knowledge of the value of the draft, and that he was not justly autho- rised to receive the amount of it, conceived the intention of fraudulently converting it to his own use, and to effectuate such intention, tendered it at the bank for payment; and if they should come to such result, then *I directed them, upon the authority of some [*11] recently published cases, to find the prisoner guilty. "The jury, after a short deliberation, found the prisoner guilty; and upon a very particular commu- nication with them as to the grounds of their finding, they stated that their inferences upon the case were, that Mr. King had dropped the draft, and that it was net stolen from him; that the prisoner afterwards found it, (thus negativing his allegation that lie had received it from another,) but that fully apprised of the value of the draft, and that he was not the person who in justice should receive its amount, he determined fraudulently u JEBB'S RESERVED CASES. [June 28 to convert it to his own use, and foi that purpose, and to accomplish such his intent, made the tender of it for payment, as proved by Mr. Law. " The recently published cases to ^/hich I alluded, are to be found in (2 Russ. on Cr. 102, Sharswood's ed. Phil., 1841,) and as they are short, I take leave here to transcribe the passage : — ' The doctrine as to a felonious ' taking of goods which have been found by the party, ' was further confirmed in two more recent cases ; in ' the first of these cases it appeared that a pocket-book ' containing bank notes had been found by the prisoner ' in the highway, and afterwards converted by him to 'his own use; upon which Lawrence, J., observed, that * if the party finding property in such manner knows ' the owner of it, or if there be any mark upon it by 'which the owner can be ascertained, and the parly, 'instead of restoring the property, converts it to his ' own usie, such conversion will constitute a felonious ' taking. And in the subsequent case the two prisoners '(father and son,) were convicted of stealing a bill of 'exchange, upon evidence of their having found and * [*12] converted it to their own use, by endeavouring to * negociate it. Gihbs, J., stated to the jury that it was * the duty of every man who found the property of an- * other, to use all diligence to find the owner, and not to * conceal the property, {which was actually stealing it,) and * appropriate it to his own use.' I apprehend the case herein respectfully submitted to the Judges is not on [June 28 1822.] REX V. BEARD. 13 irpose, and er of it for I alluded, swood's ed. ave here to a felonious r the party, t cases; in pocket-book ;he prisoner i by him to served, that mer knows upon it by [ the party, ts it to his a felonious vo prisoners ing a bill of found and eawuring to T that it was perty of an- r, and not to iling it,) and end the case 3s is not on principle to be distinguished from those cases in Russell, and that it is quite a parallel case to that before Gibbs, J. Under an impression that the doctrine of constructive felony had been carried quite far enough and ought not to be extended, except upon the authority of solemnly considered and adjudged cases, I certainly feel a diffi- culty, notwithstanding the cases in Russell, in deter- mining that the facts in the prisoner's case did constitute a felony, for I was not aware of any case prior to those alluded to explicitly deciding that a conversion of pro- perty, even with a fraudulent intent, when the original possession was purely and bond fide by finding consti- tuted a felony. As to the case before Lawrence, J., it does not appear that there was a conviction; and in neither instance does it appear that there //ls a reference to the Judges. "Lord Hale, in his Pleas of the Crown, vol. 1, page 606, lays down the law thus : '\i A. finds the purse of < B. in the Highway, and takes it and carries it away, * and hath all the circumstances that may prove it to be ' done animo furandi, as denying it, or secreting it, yet * it is no felony.' Lord Coke, in his 3d Institute, page 108, says, * if one lose his goods, and another find them, * though he convert them animo furandi, to his own ' use, yet it is no larceny, for the first taking is larvfuV Leigh's case, to be found in 2d East's Crown Law, p. 694, and in 2d Russell, * page 1090, (Russ. on Cr. [*13] 133, Sharswood's ed. Phil, 1841,) which was decided 13 JFOnn'S RESERVED CASES, by all the Judges, (with the exreption of one absent) may be considered liighly material. The prisoner there was found by the jury to have had an original innocent possession (having with an honest purpose saved some articles from a fire in the house of a neighbour), but afterwards to have conceived the resolution of appropri- ating them fraudulently to her own use, and with that view to have secreted them and denied the possession of them. They found the prisoner guilty ; but the judges were of opinion that there was no felony, the original taking not having been with an intent to steal. Some other cases possibly bearing upon the question are those respecting coachmen finding articles in their carriages, after setting down their fares, most of which appear to be collected in Rex v. Wynne, 1 Leach, 413, and among them LamVs case, in 1694, (very shortly and unsatis- factorily stated,) and which would seem to make the conversion a felony, on the ground that the proprietor of the goods was traceable, to the knowledge of the prisoner; an observation applicable undoubtedly to the case under discussion. "As larceny includes a trespass, and therefore a taking from the possession, I presume the principle of the decisions by Lawrence and Gibhs, J. J., was that the legal possession continued unaltered in the owner, and that the fact of fraudulently converting or attempting to convert the property to the prisoner's own use was a taking; indeed Gihbs, J., is made to say, that the con- I Juno 28 1832; REX 1). BEARD. 13 me absent) soner there al innocent saved some hbour), bvit 3f appropri- l(1 with that lossession of t the judges the original teal. Some on are those sir carriages, ;h appear to , and among and unsatis- to make the le proprietor edge of the btedly to the therefore a principle of was that the e owner, and ir attempting own use was that the con- cealment is stealing, a position, however, which does not appear to be recognised (but the contrary) by the Judges in LeiyU's case, which I have taken the freedom of alluding to. '« I think it proper to remark, that since the trial it occurred *to me that there was a misdescription [*14] of the instrument in the indictment, in being called a draft and order for payment of money ; and on a refer- ence to the statute which makes the stealing of choses in action felony («), I find that the words draft or order do not occur in it, and that the designation of the instru- ment should be ' Warrant for 'payment of money or bill : of exchange.' " ■ ' It was held by all the eight Judges present, (viz. .BusiiE, C. J., Smith, B., M'Clelland, B., Moore, J., Johnson, J., Jeub, J., Burton, J., and Pennefatiier, B.) who delivered their opinions seriatim, that the facts constituted a felonious taking, and that the conviction was right. The decision of the iudges was founded on j , the authority of the cases then lately decided, in 2 Russ. Cr. Law, 1044-5; (2 Russ. onCr. 133, Shirswood's ed. iPhil, 1841;) and most of the Judges considered those I cases as not perfectly reconcileable with the principles laid do^vn by Coke and Hale. (a) 3 G. 2, c. 4, b. 3 (now repealed. Tlic 9 G. 4, o. 55, s. 5, contains tlic worda "order, or oilier security"). So, if clmltcls be jfiveii to u pcrMon tor u special purpose, and at the time of such delivery the person mean to convert them to his own use, und docs so convert m 14 JEDH'S RESERVED CASES. [November them, licid to bo larceny. Rex v. Slock, 1 Moody 87. Sco also Rex v. Waltfi, 1 RiiHii. Sl Ry, 315; where the rulinjr of the Judp:o nt circuit, on tliiH point, was not overruled. But if a bailee liavinff posHCHsion oh well ns cuHtody, and having re- ceived the property with good intention, ! idea of convert. p 411. Rrx V. \l, post 51. f'JO ill tlio custody rn of takin;t *>o Harding, Rush. , ,'i'tO, and Hcq., bharawood'H cd. ' tho partici who xcite, not fear of ^f Margaret , by throw- suffocated w, J., at the case rested der the cir- ment of the e confession its admissi- le prisoner's Q, but was REX t>. GIBNEY. IS A child, supposed to be tho child in question, had been found drowned in a bog-hole, and at the time stated in the testimony of the witness by whom it was sought to give the confession in evidence, was lying in a field adjoining the high road, with a crowd of people about it. Thomas Lennon stated that he was a constable ; re- membered the time the child was found; knew the prisoner, and identified him; saw him on the 24th of May; went to take him; found him in custody with Mr. Young, the magistrate, before whom he had been brought; he was then given in custody to witness; wit- ness was bringing him to the gaol, and passed near where the body lay. Being asked the usual questions previous to giving a confession in evidence, he said he held out no hope to the prisoner, nor used any threat to induce him to confess. The prisoner first denied know- ing any thing of the matter, *and did so before [*l(i] the magistrate. On their way to the gaol they came by the field adjoining the road where the body was lying. The road and field were full of people ; all knew what the prisoner was charged with ; the people desired witness to bring the prisoner where the body was lying, that he might touch it; witness had heard of a super- stitious notion prevailing among country people, as to the effect of a murderer touching the body of the person murdered. After the prisoner had come to the body, and before he said any thing, a man of the name of 10 JKUH'S iii;ai;RVF,i) cases. |Ni)vonibfr Kenny, son to the person with Avljoni the prisoner had lived as a servant, took him aside, ajid held some con- versation with him; what it was the witness did not know. (This man was not produced.) Another con- stable, who was with witness, also spoke to the prisoner on the way, before they came to the place where the child was; witness did not hear him hold out any hope or use any threat to the prisoner, but could not say he heard all he said to him. One o1)ject of bringing the prisoner to the dead body was, that lie might sec whe- ther the body was the body of his child or not. The body was 200 or 300 yards from the road. The prisoner said nothing to witness while he was in the field ; he was brought to the body and touched it; the people were about him, and talking on the subject of the murder. After he had brought away the prisoner, and had pro- ceeded about a tpiarter of a mile towards the gaol, witness said to him, " You must be a very unhappy "boy to have murdered your own child, if it be the "case." The prisoner was crying very severely. Witness t lien said, " Did you kill the child ?" The prisoner then said he had done so, about a fortnight before Maij-day ; that he had applied to his mother to rear the child, and she had refused him, and that he had applied to his [*17] master for * money, but he had also refused him, and that he had no money or means to provide for it ; that he had tied up the child and put it in a hole in the bog ; that he had remained out long enough to make iNdvoiiibor laaaj RRX r. (JIDNKY. IT isoiu^r hiul some con- 88 (litl not lothcr con- 110 prisoner where the it any hope not say lie ringing the ht see whe- not. The 'he prisoner eld ; he was people were he murder, id had pro- 8 the gaol, ry unhappy if it be the ly. Witness irisoncr then e May-day ; e child, and plied to his refused him, ovidc for it; ' 1 hole in the iffh to make people think he had time to go to his mother's with the child. On his cross-examination the witness said there was much conversation among the people in the hearing of the prisoner about the nurdcr; the only time the pri- soner was at a distance from witness was whilst he was . talking with Kenny. The prisoner did not make a con- fession until after ho hud seen his wife, in the place where the body lay, and the body. The prisoner had been before tlie magistrate before witness received him under a committal. Witness heard the people on the road say, that the prisoner was charged with the murder of his own child, and that he ought to be hanged, if guilty; this was in the hearing of prisoner, and before ftny confession. When they came into the field, the cry of the people was greater ; this was calculated to affect ^the mind of the prisoner. He cried bitterly from the time witness got him into custody. When witness asked him did he kill his child, he did not tell him he ^ would give what he said in evidence, and ho did not |suppose the prisoner thought he would. He said he »nvas willing to die, and hoped God would have mercy Ion him. Dr. Fitzpatriclc, who was present, was anxious Hhat the prisoner should touch the body; witness had \eard an opinion that if the murderer touches the body of the person he has killed, the nose of the deceased person will bleed. Witness thought the other constable spoke to the prisoner first, as to whether he had killed SI I 17 JEHU'S RKSERVED CASES. [November the child. Witness had stopped a little, and when he [*18] came up, the prisoner and *the other constable appeared in conversation, and the witness asked the prisoner if he had killed the child. The next witness, Arthur Foster, stated that he was a constable ; that he held out no threat or promise to him before or after they came to the field ; the prisoner was brought to the body in the hope that his conscience might strike him; soon after leaving the field witness said to the prisoner, "Was he not a terrible man to do such a thing?" Before this the prisoner had a conver- sation with another man, which witness did not hear. The other witness and the prisoner conversed about the child, and upon both the witnesses again expressing . themselves on the subject of its death, the prisoner said his conscience would not let him conceal it any longer, and he then confessed. Neither he nor the last witness held out any threat or hope to him. On his cross-examination, he said that he and the prisoner had some conversation before they came to the field ; witness and the other constable several times told him what a terrible offence he had committed; that it was a terrible thing for a man to murder his own child ; witness meant nothing by what he said but to make the prisoner tell the truth. The prisoner always denied the charge until after they had been in the field. Witness did not tell the prisoner the consequence of the confes- ^ [November id when he er constable 3 asked the that he was ' promise to the prisoner 3 conscience ield witness B man to do ad a conver- id not hear. 3d about the L expressing )risoner said any longer, last witness he and the came to the al times told tted; that it s own child ; to make the '^s denied the d. Witness f the confes- 1832.] REX V. GIBNEY. 18 sion; believed he was not aware it would be given in evidence on the trial. The question arising upon the foregoing evidence was, whether the confession in this case did not resillt !i from the circumstance of the prisoner's mind being ex- • cited to terror *by the acts and speeches of the [*19] persons through whom, and by whom, the prisoner was conducted to gaol; and, therefore, whetl^.er it was such a voluntary confession as ought to be given in evidence against the prisoner. All the judges being present, it was theii unani- mous opinion that the confession was properly received in evidence. Some of the Judges at first had doubts, but they finally concurred with the rest. They held the rule to be well established, that a vo- untary confes- sion shall be received in evidence, but if hope has been excited, or threats, or intimidation held out, it shall not. The fear, however, to be produced, must be of a tempo- ral nature, and in this case there was no such threat or intimidation, nor any fear of a temporal nature produced ; I any terror that might have been excited was as to what I might happen in the next world. I On account of the extraordi nary circumstances of the ' case, the prisoner was recommended to mercy; end he was not executed. VJ JEBB'S RESERVED CASES. [Novcml)cr S. P. Rex V. Gillinm, 1 Moo. 18G, a case considerably stronger tlinn the present, and which iippears to hiivc been ful'.y nrjfucd; also Rex v. Wild, id. 4.59. The rule ndiniltcd in the principal case as to confession induced by hopes or fears of a tempo- ral nature, was conlirnied in Rex v. (Iriffin, Russ. «fc Ry. 1.51, Rex v. Junes, id. 152. Rex V. Jenkins, id. 4!)2. Rex v. Upchurch, 1 Moo. 4(i.5. See also Rex v. Row, Russ. &. Ky. 153, and Rex v. Thornton, 1 Moo. 37. In Row's case, sup., the prisoner's ncijjhbours, who had notiiiiii; to do with the apprehension, officiously interfered, and adnionislicd tiie prisoner to tell the truth and consider his family, and, appa- rently, ill conscipirnco of tiiis lie did confess to the constable, about ." t liour after- wards. Held admissible. Sec also The King v. Bryan, post 1.57. o, however, Sherrington''s ease, Liverp. Sp. Ass. 1838, 2 Lewiii's C. C. 123. On the subject generally, sec Roscoc's Crim, Evid. 37, dkc., Phil. 1840. Russell on Crimes, G44, &.C,, id. 1841, [*20] IN the Matter of a PPESENTMENT by the GRAND JURY of the County of DOWN. I1!l Where a presentment was made, witiiout being traversed, of a certain sum to be paid by instalments; and at the next assizes a presentment was made of one of these instalments: Held, that a traverse did not lie to the latter |>resuntmcnt. At the Summer Assizes for the County of / ' .'p-n, in 1822, Jehb, J., reserved for the consideration of the ^ udges a question whether a traverse of a presentment for £ 2000, tendered at those Assizes, lay, under the follow- ing circumstances. At the Spring Assizes in 1821, the Grand Jury pre- sented the sum of £ 60,000 to be raised off the County at large, for the purpose of building a new County Gaol, [November 1823.1 PRESENTMENT BY THE GRAND JURY, &c. 30 thnn the present, id. 4,")2. Tlie rule ■ fears of a tciiipo- ! V. Junes, ill. 152. Kexv.Iiow, Russ. 1])., the prisoner's ciously interfered, \iinihj, and, appa- out ." T hour iifli-'r- 7. 0, however, , On the 8ul)ject 1 on Crimes, 644, the GRAND certain sum to be rns made of one of ter (iresiintmcnt. 01 >'■- )vn, 111 ofthuv-Lidges entment for Br the foUow- nd Jury pre- f the County County Gaol, and by the said presentment directed that the sum should be raised by half-yearly instalments of £ 2000 each, and they presented the first half-yearly instalment. They also appointed twelve commissioners to carry the presentment into effect, pursuant to the 50 Geo. III. c. 103 (a). The commissioners approved of a plan and estimate, fixed on a site for the new gaol, and had the ground valued by a jury, but did not take a conveyance of the ground, nor enter into possession ot it, nor com- mence nor contract for the building. In these prelimi- nary acts they incurred an expense of £3000. The plan and estimate were subsequently approved of by the Lord Lieutenant, but no contract was laid before him, nor entered into by the commissioners. At the Sum- mer Assizes in 1821, and the Spring Assizes in 1822, presentments were passed for the half-yearly instalments of £2000, and these with the first instalments were levied. At these two last Assizes it appeared, from cer- tain * other plans and estimates which had been [*21] procv^red, that the then present gaol might be sufficiently enlarged for the sum of £ 2000, and it became a matter \ of discussion among the gremd jury whether they should I proceed upon the original expensive plan, or adopt the I more economical one. The majority of the grand jury, |at the Summer Assizes m 1822, were in favour of the former, and accordingly presented an instalment of (o) The provisions of this Act have been adopted by the 7 G. 4. c. 74, wliieh is still in force, subject to the additional provisiouB of the 6 &. 7 W. 4. c. 116, b. 124. 4 21 JEBB'S RESERVED CASES. [February 19 £ 2000. It was to this instalment that the traverse in question was tendered. Km if l\ The Judges were unanimously of opinion that the traverse did not lie; on the ground that a traverse does not lie to the presentment of an instalment which is the mere execution of a previous presentment which might have been traversed (a). (a) The 6 & 7 W. 4. c. 116, s. 133, enacts, " that prtientmenta shall be traversed orly at the Assizes at which tlio presentments shoil be made." THE KING V. BROWNE and Others. An indictment for abduction stated in one count, that the prisoners, on &c., at &,c., upon one H. G. then and there being', did make an assault, and her the said H- G, did carry away. Another count stated, in the same terms, an assault and abduction by persons unknown, and that the prisoners were then and there pre- sent, aiding and abetting. Held by eight Judges against three, that the indict- ment was bad for want of a venue. It is no valid objection that such an indictment under the 19 6. 3, c. 13, concludes against the form of the "statute," instead of "statutes." The first count of the indictment charged that the pri- soners, " being evil-disposed persons, and not regarding " the laws and statutes of this realm, on the 10th day of " March, in the 3d year of the King, with force and "arms, at Gkngurt, in the County of Limerick, in and [February 19 lo23.] REX V. BROWNE. 21 traverse in 3n that the averse does ^^hich is the ^hich might shall be traversed rs. irs, on Sec, at &c., id her the said H- 118, an assault and hen and there pre. se, that the indict. 3, c. 13, concludes that the pri- LOt regarding 3 10th day of th force and erick, in and " upon one Honora Goolde, in the peace of God and of * our Lord the * King then and there being, did [*22] " feloniously make an assault, and her the said Hofiora " Goolde did feloniously and by force take and carry " away against her consent, with intent that the said *'John Browne should feloniously marry her the said " Honora Goolde, against the peace, &c. and against the • " statute in such case made and provided." The second count varied only in substituting the word " defile" for " marry." The third count charged " that certain per- " sons unknown, on &c., with force and arms, at Glen- ** gurt, in the County of Limerick aforesaid, in and upon *' the said Honora Goolde, in the peace of God and our "said Lord the King then and there being, did felo- ¥nionsly make an assault, and her the said Honora " Goolde did feloniously and by force take and carry " away against her consent, with intent that the said ** John Browne should feloniously marry her; and that - " the said (prisoners) were and each of them was then " and there feloniously present, aiding and abetting, &c., "the said unknown persons in the felony aforesaid, ** against the peace, &c., and against the statute in such I" case made and provided." The fourth count differed |from the third, as the second did from the first; and it %lso omitted the words, " then and there," before " felo- niously present." At the trial before Torrens, Serjeant, at the Summer Assizes for the County of Limerick, in 1822, the prison- m 23 JEBD'S RESERVED CASES. [February 19 ers were convicted ; and when they were brought up to receive sentence, it was moved by their counsel in arrest of judgment : First, that there was no venue laid as to where the offence of the abduction was committed; the venue laid and the words " then and there" being appli- cable only to the felonious assault. Secondly, that the indictment concluded " against the form of the statute,^^ [*23] whereas it ought to have * concluded " against the form of the statutes.'^ The learned Serjeant having reserved these questions, ten of the judges met (Lord Norbunj, C. J. C. Pleas, and Smith, B., being absent). Eight Judges {Bushe, C. J., a Grady, C. B., M'Clelr land, B., Fletcher, J., Moore, J., Jebh, J., Burton, J., and Vandeleiir, J.,) held that the indictment was bad, for want of a venue to the averment of the abduction ; and that the authorities, Df/er, 69 a, and 2 Hale, ISO, were in point. Johnson, J., and Pennefather, B., thought that the third count was good on this ground ; that it stated that the prisoners were " then and there" present, aid- ing and assisting, &c.; that these words were words of reference to something that went before, and the only time and place mentioned before being those which pre- ceded the assault, these words referred to the venue of the assault; and that if this were so, then, inasmuch as it was averred that they were then and there aiding and assisting in the felony, it followed that the felony was then and there committed. But to this it was answered by the other Judges, and .......»f the 46th Geo. III. ; that afterwards, to wit, on the 14th of November, 1816, at, &c., the said Martin Kennedy died; that one Thomas Fitzmaurice, (the prisoner,) well knowing the premises, on the 30th of September, in the 3d year of George the Fourth, at, &c., with force and arms, &c., did willingly, knowingly, and feloniously, personate and falsely and feloniously assume the name and character of another person, to wit, of the said late Martin Kennedy, deceased, then and there supposed to Ijl !,i (o) This Act ia now no longer in force; hut similar provisions are contained in the 7 (i. 4. c. H), s. -•}:!, and the 2 W. 4. c. .'").3, s. 49. I ii ■ [February IG 1824.1 REX V. FITZMAURICE. RICE. the 46 G. Ill c. tlie living. Sem- "of our Lord the reign of llie late wn, in 1823, . B., on an so. VL c. 69, a discharged ;ount stated, Martin Ken- d discharged ension, rehef, tue of an Act t, on the 14th •tin Kenned)/ risoner,) well ember, in the ith force and I feloniously, me the name the said late 3 supposed to inR are contained in be a person entitled to said pension, relief and allow- ance; and tliat the said Thomas F it zmaurice i\.\(\. iXxew and there so personate, &:.c., in order to receive part of the said pension, &c., to which the said Martin Ken- nedy was supposed to be entitled, to wit, the sum of £4 IS.f. Id., being the amount of the said pension for 91 days, from the 25th of September to the 24th of Decem- ber, 1822. The second count stated, that the prisoner "on the 30th of September, in the 3d year of Geo. IV., at, &c., did personate another person, to wit, one Martin *Kcnnedij, supposed to be entitled, as an invalid, [*30] disabled and discharged soldier of our said Lord the King, to a certain pension, to wit, &c., under the 46 Geo. III.; and that the prisoner did so personate in order to receive part of the said pension, to wit, &,c. The third count differed from the first, in omittincj the averment oi Martin Ke medi/s death in 1816, and intro- ducing an averment, '• that on the 30th of September, " ] 822, the said Martin Kennedy w s entitled to the said "pension." The fourth count charged, that the pri- soner personated one Martin Kennedy, supposed to be ; entitled by his services (omitting venue,) in the 7th ^Dragoon Guards of our Lord the King, and as an inva- < lid, disabled and discharged soldier, to a certain pension, in order to receive the same. It appeared in evidence, that Martin Kennedy, the di-iabled and discharged soldier whom the prisoner jmr- sonated, died in 181a; and the money was paid to the m ) 'I JEBB'S RESERVED CASES. [February 16 prisoner in ignorance of that fact, and upon the suppo- sition of his being that soldier. The counsel for the prisoner insisted that the word "person" in the statute, even v^^hen followed by the words, "supposed to be entitled," did not extend to the case of a deceased man, and the learned Chief Baron was of that opinion ; but he sent the facts to the jury, and a verdict of guilty having been returned, his Lordship, at the desire of the counsel on both sides, reserved the question for the opinion of the twelve Judges. m ; tj Three of the Judges {0' Grady, C. B., Vandekur, J., and Torrens, J.,) were of opinion that all the counts in the indictment were bad. They considered the aver- ment in the first count, that Kejvnedy was supposed to be entitled as an invalid soldier, &c., repugnant to the [*3l] previous * allegation, that he had died in 1816; and as to this count all the Judges agreed with them. The third count they, and all the Judges, agreed, was not supported by the evidence, Ke?inedy being dead. The fourth count, the three Judges held not to be sup- ported by the evidence, Kennedy^ s services having been in a regiment of our late Lord the King; and there being no venue to this averment; and the general opi- nion of the other Judges seemed to be the same, but it was unnecessary to decide this point, as those other Judges were of opinion that the second count was good. The three Judges held that the second count was bad, as, even supposing Kennedy to bo alive, he never was [February 16 (1 the suppo- insel for the the statute, posed to be sceased man, jpinion; but ict of guilty desire of the ition for the v'andeleur, J., the counts in ed the aver- 3 supposed to Liprnant to the lied in 1816; 1 with them. , agreed, was being dead, lot to be sup- having been g; and there B general opi- 3 same, but it those other int was good, mnt was bad, lie never was 1824] REX c. FITZMAURICE, 31 an invalid soldier of our Lord the now King, having been discharged in the time of the late King. But the other Nine Judges {Biishe, C. J., Lord Nor- lury, C. J. C. Pleas, Smith, B., M'Cklland, B., Moore, J., Johnson, J., Jebb, J., Burton, J., and Pennefather, B.,) held that the second count was supported by the evi- dence, for they held that if Kennedy were alive, " inva- "lid, disabled and discharged soldier" would be his proper description, and that this meant a soldier of our Lord the now King. With respect to the facts proved, four Judges {0' Grady, C. B., Moore, J., Johnson, J., and Pennefather, B.,) held that they did not constitute a crime within the statute; and that "person" meant a w living person." Eight Judges {Bushe, C. J., Lord Norhury, C. J. C. Pleas, Smith, B., M'Cklland, B., Jebb, J., Burton, J., Vandeleur, J., and Torrens, J.,) held that the case of personating a deceased soldier was within the statute. That the Greenwich Act, 54 Geo. III. c. 93, must receive the same construction as the Act in question, and by it the cases of personating a living seaman, and the representatives of a deceased one, I* are both provided for ; and to say that the case [*32] *|of a deceased seaman was omitted would be to suppose ijthat the legislature left unprovided for, a fraud very likely to be practised, and which, in fact, is much more frequently practised than the fraud of personating a living man. That the term, "person," is applied in common speech to the dead as well as the living, and 33 JEBB'S RESERVED CASES. [February IG in construing an Act of Parliament words are to be used in their ordinary signification. The result was, that although there was a majority in favour of the conviction on each point, yet as there was such a diversity of opinion, and as they were equally divided on the whole, it was agreed that the prisoner should be recommended. The Chief Justice, with the concurrence of the Judges, wrote to Abbott, C. J., requesting to be inform- ed whether any such cases had occurred in England, and if there had, how they had been ruled? Abbott, C. J., answered this letter, saying that he was not aware of any decision upon this statute, 46 Geo. III. c. 69, but that two cases {Rex v. Martin and Rex v. Cramp, — now reported in Russ. & Ry. 324-327,) had been decided by the twelve Judges on a similar statute, the Greenwich Act, 54 Geo. III. c. 93, s. 89 ; and his Lordship transmitted copies of those two cases, in which convictions under similar circumstances were held good. See ante, The King v. Keefe, p. 6. §'l! [February IG is are to be 1824. CRIERS' FEES. 33* a majority in as there was vere equally the prisoner rence of the to be inform- in England, ? Abbott, C. as not aware 0. III. c. 69, V. Cramp, — ',) had been nilar statute, 89 ; and his wo cases, in stances were * IN the Matter of CRIERS' FEES. Clerks of the crown and criers are not prohibited by statute from tailing any fees, ■ except those which had boon formerly paid by presentment, and are now com- % muted for salary. Schedule of fees to which the crier is entitled. The following case was submitted by Torrens, 3., for the consideration of the Judges : ^ " By the Act of the 4th Geo. IV. c. 43 {a) entitled, |An Act to regulate the amount of presentments by ^rand juries, for the payment of public officers of the .^everal counties in Ireland,' it is by the first section (b) enacted, ' That all the Clerks of the Crown, Clerks of * the Peace, Secretaries to Grand Juries, Sheriffs, Medi'- *cal Officers of Prisons, . ad all other officers specified *jin the table to the said Act annexed, for the payment for remuneration of whose duties, salaries, or expenses, |any presentment is required to be made by Grand ♦ Juries under any Acts in force at the time of the pas- Ising of said Act, shall from thenceforth be paid and I t(a) Although the provisions of this Act have been superseded by the 6 & 7 W. c. 116, yet the principle established by this case applies equally well to the latter 4ct ; and this case was referred :o by the Judges in 1837 and 1839, as the basis of their decisions in those years, in the cases of the Fermanaprh and Clare Road Traverses {vide post). The schedule of fees, as settled on this occasion, remains unaltered, except that the traverse mentioned in the first item, means only a tra- tetaefor damages. • (i) Vide g. 110, of 6 &, 7 W. 4, c. 116. im .Ji 33 JEDB'S KESERVED CASES. [Junuary 3G * remunerated for all such duties, services, and expenses, * by annual salaries only, payable half-yearly, according ' to the table to said Act annexed ; and such sums, so ' presented, not exceeding the annual sum set forth in ' the said table, shall be in full and complete satisfaction ' and remuneration for all duties and services to be done ' and performed, and for all expenses to be incurred by * such officers, for which any presentment may lawfully * be made by any Grand Jury.' The persons who have [*34] heretofore acted as criers in the * respective courts on the circuit, are not mentioned by name in the fore- going section ; but in the table of classification of coun- ties and salaries of public officers annexed to this Act, such persons are denominated "Judges' Criers." This Act only received the royal assent immediately previous to the last summer circuit (viz. on the 27th of June, 1823), and a difference of construction having been given to it on the different circuits by the respective Judges, it appears desirable that your Lordships' opi- nion should be had on the proper construction and regulations to be now adopted with respect to those officers, so that an uniformity of construction may here- after prevail. The following points are therefore sub- mitted tc your Lordships' consideration : 1st, Whether any other fee or gratuity whatsoever is now of right payable to, or demandable by, the Judges' Criers, save the salaries specified in the table of classification ? The fees and gratuities hitherto paid, as far as they have come under my observation, consist, first, of fees pay- ^^ [January 2G ad expenses, y, according ich sums, so I set forth in e satisfaction es to be done i incurred by may lawfully 3ns who have pective courts J in the fore- ition of coun- d to this Act, riers." This itely previous 27th of June, having been the respective ordships' opi- struction and spect to those ion may here- therefore sub- 1st, Whether now of right s' Criers, save fication ? The • as they have t, of fees pay- 1824.] CRIERS' FEES. 34 able to the crier in the civil court, upon trials of records and verdicts returned, and (I believe) appeals from assistant barristers' and manor courts ; secondly, gratui- ties paid by the sheriffs, to induce the Judges' servants to act as criers ; thirdly, fees on burning petitions in the crown court. There may be others which your Lord- ships' experience may suggest. \ " 2dly. Whether the respective criers of each Judge be not entitled, under the words " Judges' Criers," to a half-yearly salary, under the table of classification 1 It is apprehended that the arrangement of the Judges on 4he circuit presiding at the same time in different courts, was so settled by themselves for their own and the pub- lic convenience, and is not regulated by any legislative Miactment, *and it may, and frequently does [*35] Jiappen, that the Judge, whose trrn it is to preside in ihe civil court, is called upon to assist his colleague in delivering the gaol, taking presentments, &c. &c. " 3dly. Whether it was not the intention of the legis- .Jature, and would not be now desirable (if the statute referred to will bear the construction suggested), that Ihe Judges' Criers (now so called for the first time,) Should be put on the same footing with all other public officers, and be paid the specified salary only; and that all fees, or gratuities in the nature of fees, should be pro- hibited from being taken by them ? ,f 35 JEBB'S RESERVED CASES. [January 36 " 4thly. Whether, since the 4 Geo. IV., the sheriff be still bound to provide a crier for the court?" The Judges held, on a principle common to both clerks of the crown and criers, that the salaries provided by the 4 G. IV. c. 43, were only in lieu of fees formerly paid by presentment, and therefore did not bar a claim to any lawful fees of another description. With respect to the criers, they went further, and established a list of the fees which they miglil lawfully claim over and above their salaries («). They also held, that certain [*36] other gratuities * theretofore paid to the criers by certain persons were not demandable of right, but mere courtesies, which it was optional with the party to pay or not; such as money customarily given by barristers and attorneys to the crier of each court, in consequence of his attending to their accommodation therein, and a sum given by the sub-sheriff to the crier, for assisting him in preserving order in the courts. (a) These are as follows: In the crown court — on the trial of any traverse to a grand jury presentment, 5a, On the liearing of any petition for compensation for malicious injury, by burning or otiicrwisc, Ss. In the civil court — for each record tried by a special or common jury, 10s. 6d. On each recognizance, or bail-piece, acknowledged before the judge, 58. On each aflidavit sworn in court. Is. See the cases (post) of the Fermanagh Road Traverse, in 1637, and the Clure Road Traverse, in 18.39. ^ [January 26 , the sheriff ft?" 1824.1 REX V. CAHILL. non to both ies provided ises formerly t bar a claim With respect shed a list of ,m over and that certain the criers by rht, but mere party to pay by barristers consequence h(irein, and a , for assisting of any traverse to a 18 injury, by burning mon jury, 10s. Gd. le judge, 5«. 1837, and tlie Clare THE KING V. CAHILL and Others. IAo indictment for burglary in a gatc-housc, stating it to bo the diBtUing-houM of tiie gnle-kcfper, is bad. An indictment under the Wliiteboy Act for nn injury to a gnte-house, stating it to be tiic " dweiling-iiousc and habitation" of the gatc-kccpcr, is suilicicnt. The prisoners w^ere convicted before Bushe, C. J., at the Spring Assizes for the County of Kilkenny, in 1824, upon two indictments. The first indictment was for burglary, viz. for "feloniously and burglariously breaking and ^'entering the dwelling-house of one William Spellan, ^' at eleven o'clock at night, with intent to kill the said *♦ William Spellan." The second indictment was under the Whiteboy Act («), viz. that the prisoners, between sunset and sunrise, did "assault and injure the dwelling- ** house and habitation of William Spellan, by pulling " the slates off the roof of the said dwelling-house and - " habitation." There was a second count in the latter indictment, omitting the words, "by pulling the slates .off," &c. Both indictments were sufficiently supported by the evidence; but it appeared that William Spellan was the gate-keeper and wood-ranger of Sir Wheeler Cuffe, and as such lived in his gate-house, which was on the side r ■ (n) IS, 16Gco. III. c. 21,s. 4. 87 JRDB'S RESEUVED CASES. [May \i r*37] of the * high road, and nearly half a mile from Sir Wheeler's house ; that no one lived in the gate-house except Spellan and his family, and that Sir Wheeler Ciiffe paid him for his services by wages of £ 10 a year, and by an allowance of firing and milk, and by permit- ting him to live in the gate-house, of which he had no lease, and for which he paid no rent. Under these cir- cumstances, counsel for the prisoner insisted that the gate-house was not the drvelling-Jiouse of Spellan, so as to support the indictment. The learned Chief Justice reserved this question for the twelve Judges, and sent the case to the jury, who found the prisoners guilty. Ten Judges {ahsentihus Smith, B., and Johnson, J.,) ruled that the indictment for burglary was not sustained, as for the purposes of burglary the house was the house of Sir Wheeler Cuffe; on the authority of the case of Rex V. Moore (a), and the authorities there cited. But (a) REX r. LAURENCE MOORE. October, 1820. The prisoner was indicted at the October Sessions at Grcen.street, before Daly, J. and Smith, B., for burglary, on an indictment containing two counts. The first count laid the burglary in the dwclling-housc of George I'rescott, the second in the dwelling-house of George Vetey. The prisoner was acquitted on the first count, and found guilty on the second ; but the Judges, doubting the propriety of the con- viction, reserved the case for the opinion of the Judges. The house was an orna- mental cottage in Mr. Vetey'a demesne, to which Mr. Vesey and his family used to resort, and in which they occasionally dined, but never slept. G. Prescott was Mr. Vesey^B servant, having the care of the cottage, and he and his family inha- bited part of it, but paid no rent, and he was removable at Mr. Veaet/i pleasure. Upon the authority of Rex v. Stock and Edwards, 2 Taunt 339, and 3 Leaoli 1015, and on consideration of all the cases, the Judges held the conviction to be proper. ^ [May IS f a mile from le gate-house Sir Wheeler f £ 10 a year, id by permit- zh he had no der these cir- sted that the Spellan, so as Chief Justice res, and sent ers guilty. Johnson, J,) not sustained, was the house if the case of •e cited. But 1824.) REX t). CAIIILL. ST i.street, before Daly, 70 counts. The first ott, the second in the i on the first count, propriety of the con. I house was an orna- f and his family used pt. G. Prescott was and his family inha- Mr. Veseifa pleasure, at 339, and 2 Leanli the conviction to be they were also of opinion that the conviction on the second indictment was good. The words of the statute are, "if any person shall, maliciously assault or injure /' the habitation, property, goods," &c. ; which general jword, "habitation," * shows that it was intended [*3S] ^hat any |)lace in which any person inhabited was to be protected; and that the rule in arson, by which the offence is coiisidered to be committed against the actual possessor, by whatever title he may hold the possession, is the rule which should govern cases under this statute. The indictment in this case had introduced the word ."dwelling-house," which is not in the statute; but this did not affect the case, as the word "habitation" was ftlso in it. To the same effect, Rex v. Wilsnn, Russ. & Ry. 115; where the person in whose iwiduncc the burglary was coirimiltcd occupied pari of a house belonging to a ODmj)any, (the company meeting for business in a room of that part,) as a provi- lion for scvcrul years, and paying no rent: Held that it could not be described at) kis d. h. Also Rex v. Slock, id. lt*5, (referred to in Rex v. Moore, supra, n.) a case Qoiisidvrubly siifiilur to the preceding: Held that it properly laid as the d. h. of Ae owners, though none of them, in fact, resided in the house. In these two cases Ihe occu|)aiits were regarded as servants. Secus, however, if the person though Bving in the house, though rent free, be not a servant, as a tenant at will, Rex v. • Collett et tiL, id. 498; or, if being a servant and occupying the whole house, he .pay rent, though very inadequate, and tliough he have the house by reason of his |pervice, Rex v. Jarvis et eing absent), that the medical officer was entitled to presentment for the whole salary, and that the Grand ury were bound to present the entire (a). (ft) The schedule to the 6 & 7 W. 4, c. 116, is nearly similar. (a) See 6 & 7 W. 4, c. 116, s. 110, which authorizes a diminution where tliere has been a neglect of duty. 1 1 ■"11 Pi I 44 JEIJB'S RESERVED CASES. [April 97 IN the Matter of Presentments for MEDICAL OFFICERS of BridcwcllL^ in the Co. of VVICKLOVV. A medical f)fliccr cannot be lawfully nppoint(^d by a county grand jury for a bride, well. The amount of a bill for niedicint's for prisoners in a bridewell may be presented, if furnished by tlie upotliecury of the county gnol, but not otherwise. In consequence of presentments offered to Bushe, C. J., at the Spring Assizes for the County of WicMorv, in 1825, and the Summer Assizes for the same county in 1824, relating to the District Bridewell of Baltinglass, in that county, his Lordship reserved the following questions for the opinion of the Judges : 1st, Can a physician, surgeon, or apothecary, be law- fully appointed and paid by the Grand Jury of a county at large, for a bridewell, whether district or otherwise' 2dly, Can the amount of an apothecary's bill, for medicines or other necessaries for prisoners in a bride- well, whether district or otherwise, be lawfully pre- sented ? iiii 3dly, If the ^amount of said bill can be legally pre- sented, can it be presented for any apothecary, except the apothecary to the county gaol ? [April 27 )FFICERS of i. id jury for a 5i-i(/p- 1 bridewell may be , but not otherwise. Bushe, C. J., ' WicUow, in me county in f Baltinglass, he following 3cary, be law- ry of a county or otherwise: 1825.J COURT HOUSE PRESENTMENT. 44 Eleven Judges (Smith, B., being absent) unani- *mously agreed upon the following answers: — To the fir.st question: that there can be but one physician, sur- geon, or * apothecary, for all the prisons in the [*45] ^ounty, and that therefore a medical officer cannot be appointed by a county Grand Jury for a bridewell. To the second question : that the amount of the apothecary's bill for prisoners in a bridewell can be presented for, if ' furnished by the apothecary of the county gaol. The third question was answered in the negative (a). («) These questions depended on the enactments of the .50 G. 3, c. 103, as. 3, 9, JO-54, and the 3 G. 4, e. 64, ss. 2G, 28, 31-36, which arc now repealed by the Gene- |b1 Prison Act, 7 G. 4, c. 74. But the decision may probably apply to that Act. — Vide ss. 72, 74. .^ In the Matter of a PRESENTMENT for a COURT HOUSE, ^ in the County of CAVAN. ary's bill, for ers in a bride- lawfully pre- )e legally pre- lecary, except ; ,«A presentment of a sum for additional works done In a new court house, not in- cluded in the original contract, is illegal, under the 53 G, III, c. 131. ^'iie Grand Jury of the County of Cavan having pre- sented that a new court house should be built in the town of Cavan, overseers were appointed under the sta- tute 53 Geo. III. c. 131 {h). A contract for the building (6) This act is still in force, taken in connexion with s. G9 of 6 & 7 W. 4, c. 116. 8 \% 11 48 JEBB'S RESERVED CASES. [April 27 of such court house, pursuant to a plan and estimate, War. duly entered ii.to, and approved of by the subse- quent Grand Jury. After the work specified in the con- tract had been finished, the overseers being of opinion that several additions were requisite, for thj purpose of making the building more commodious, gave direction to the contractors to make such additions to the work, which were accordingly executed. An account of the ex- pense of said additional work, entitled "A bill of sundry " additional works done in the new court house of Cavan, "not included in the contract; materials furnished by " [*46] Williams * and Coclcburn/^ was furnished by the contractors to the overseers, amounting to the sum of £ 975 95. 8d.; which account having been submitted to, and investigated by, the Grand Jury at the last assizes, was approved of by them, and the following presentment was made : " We present the suui of £ 1000 *' to the commissioners of the new court house, in aid of "JE6000 already borrowed, for sundry works executed "in said court house; said sum of £1000 to be levied " by successive yearly instalments of £50 each," &c. It occurred to Vandeleur, J., that this presentment, although under the circumstances perfectly just, was not authorized by any statute, and he therefore respited it, in order to obtain the opinion of the Judges, as to whether it was legal or not. i IH 1 Ten Judges met, six of whom (Bushe, C. J., Moore, J., Johnson, J., Jebb, J., Burton, J., and Vandeleur, [April 27 1(1 estimate, r the subse- l in the con- T of opinion J purpose of ive direction to the work, intoftheex- lill of sundry ise of Cavan, burnished by burnished by y to the sum en submitted r at the last he following urn of £1000 >use, in aid of rks executed ) to be levied each," &c. presentment, 5tly just, was efore respited Judges, as to C. J., Moore, 1 Vandeleur, leari.] HEX t). CRONE. 46 J.,) were of opinion, that the presentment for additional works over and above the sum originally presented and contracted for, was illegal under the 53 Geo. III. c. 131. The other four Judges were of a contrary opinion. But all the Judges being of opinion, that the sum expended -ought to be paid, Vandeleur, J., signified this opinion to Mr. Goulhurn, the Under Secretary for Ireland, with a ' recommendation, that government would make some provision for the purpose. THE KING V. JOHN CRONE. [*47] Where a statute mode the stealing of a promissory note larceny, and a subsequent i statute provided for the punishment of receivers of stolen "goods or cimttuls:" Held tiiat promissory notes were "goods" within the meaning of tlic latter Act. 'Tins case was reserved by Pennefather, B., from the ^Spring Assizes at CorTc, in 1825, for the opinion of the fjudges. The prisoner was convicted of receiving a promissory fnote, knowing that it had been before feloniously stolen. It was objected by iiis counsel that the stealing of a promissory note was not an offence at common law; that it became so in consequence of the 3 Geo. II. c. 4, sec. 3; that the 4 Anne, c. 9, sec. 4, and 8 Anne, c. 8, ji % m I it;! 47 JKBirS RESERVED CASES. April U7 for the punishment of receivers of stolen goods, did not extend to receivers of promissory notes, which are not "goods or chattels;" and that the 3 Geo. IV. c. 24, for the punishment of receivers of "stolen securities," did not extend to Ireland. The questions proposed hy the learned Judge, were — 1st. Whether the 3 Geo. IV. c. 24, extended to Ireland! 2dly. Whether the conviction was j^uod independently of the statute ? Ele .:n Judges (Smith, B., being absent), were of opinion that the conviction was right under the 23 & 24 Geo. III. c. 45, which makes it a misdemeanor to "buy or receive an;y goods or cliattels, knowing the " same to have been stolen." It was so decided by the majority of the Judges in 1809, in the case of Rex v. Grei/, May7ie and Day, J. J., dissenting («). It was thought unnecessary to declare any opinion whether the 3 Geo. IV., c. 24, extended to Ireland; the ground of [*48] the decision of the Judges being that the * 3 Geo. II. c. 4, makes it felony to steal bank notes, &c. ; and that the 23 & 24 Geo. III. c. 45, makes the receiving of "stolen goods" a misdemeanor, punishable as such, and an offence which may be tried before the trial of the principal offence; and that bank notes, &c., are comprehended within the meaning of the word "goods," (o) See Hayes' Criminal I,aw, 24. [April 'il )ocls, did not Inch arc not .V. c. 24, for jurities," did idge, were— 1 to Ireland I idependently 3nt), were of der the 23 & idemeanor to knowing the 3cided hy the ^se of Rez v. (a). It was 1 whether the tie ground of t the * 3 Geo. tes, &c.; and the receiving able as such, e the trial of )tcs, &c., are vord "goods," lasss. REX V. FULTON. 48 they being made the subject of larceny by the statute 3 Geo. II. c. 4. '(). (a) Tlic3 Act 2.') it 21 Geo. 3, c. lH, Is now repeal. '1, (ttH nro iilso (lio oilier Acta referred t(i in tliin uune); mid tlie Act now in force reH|)eetin)f rceeivers of (ilolcn property, the 9 G. 4, o. US, ». 47, niiikeM tlio rcceiviriif ii "valuable security" a pun- t liable otl'enee. Tliu question, tlierefore, eiinnot nrine uginw, (ind this ease iH iLiely uu unlhority so far us it illuslrutuii Iho meaning of tlio woidi "goods and elmtlels." I THE QUEEN «. FULTON. An indictment for liavinjr in possession a forged note of the Uoyal Bank of Scollund, willi intent to utter it, cannot bo supported at cuininon law. Margery Fulton was convicted before Jehb, J., at the Rummer Assizes for the County of Do7vu, in 1825, on 911 indictment charging her with having in her pos- lession a forged note of the Royal Bank of Scotland, Jtno^^ g it to 1)6 forged, and with intent to pass it as a ^ nni.^e note. The indictment was framed on a deci- fion of tlie twelve Judges in Ireland, in the case of Rex t. Willis, in 1797 (Z»), according to which several convic- II (6) This case appeared from a certificate of B. Riky, Esq., Clerk of the Crown, ftt have been us follows: At the Commission Court in Duldin, on December D, 1797, Anthony Willis was indicted for that he had knowingly in his possession /iO pieces of counterfeit money and coin made to resemble shillings, with intent to ntter them, and was found ftuilty. A question having been reserved, whether the indictuunt contained any offence at common law, the Judges were unanimous in supporting the conviction. The prisoner was sentenced to three months' imprison- nicnt. 4 i m III Ml Hffl i, '■ 1 liiiiiiii: 48 .IRnn'S RKSRRVF.I) CASR8. [MichoolmnN tions had since taken place. But as it appeared from the cases of Hex v. Ilrafh (c), and lice v. Stewart (iJ), then recently published, tliat the twelve Judges in [*4i)] Engliind had decided that this was not a * mis- demeanor, on the ground that no act was charged to have boon committed, the opinion of the Judges was requested as to whether this conviction was legal. The learned Judge added that the evidence would have fully sustained an indictment for disposing of and putting away the forged note, under the 45 Geo. III. c. 89, s. 1 (fl); and that it was a very fit case for such a prosecution, as the prisoner appeared to be an extensive dealer in forged notes; or it would have sustained an indictment for procuring a forged note with intent to utter it, on the authority of Rex v. Fuller and Robin- son {h). He, therefore, further requested the opinion of the Judges, whether in case it should be held that the conviction was wrong, it would be proper to recom- mend the prisoner to a limited pardon (c), extending to this conviction only, and that the prisoner should be detained until the next Assizes, to be indicted for dis- posing of, and putting away a forged note, or for procuring a forged note with intent to utter it. The Judges unanimously ruled that the indictment (c) Russ. &, Ry. 184. ((/) Russ. & Ry. 288. («) Repealed by 1 W. 4. c. C6, s. 31.— But sec the 39 G. 3. c. f)3, s. 1. (fc) Russ. &. Ry. 308. (c) Sec Russ. &, Ry. 411. ^^ [Micliiiolmnii ipoared from . Stewart {i]), Judges ill « not a * mis- ts charged to ) Judges was IS legal. idence would posing of and [5 Geo. III. c ise for such a B an extensive 3 sustained an vith intent to er and Robin- d the opinion A be held that oper to recom- ), extending to ner should be ndicted for dis- 1 note, or for ter it. the indictment J835.] REX V. ROSiSITER. was had, and that a pardon should bo recommended; but that the prisoner should be detained for a further kidictmcnt {d). ii (il) The cttsc of Imvinjr in podscHHioti, with intent, &.C., /rnld or nilrrr coin, i» £>w providid for \>y the 3 W. I, c. 31, h. 8; iiiul thi' HI) (J. 3. c. {V.i, h. .I, and llic ■»!) 1p. 3, c. 13, «, 3, niiiito thu huvin); in poHMCMnion with intuiit, iVc, Uunl( of Enalnnd Ir Ireland notes, felony, lint thu cunu of a Seoleh liniik notu n|)|iearH to lie the hiiiuo ■• that of liny private proniisHory nolo, the poN.seHNion of which, lh()U;;h the note hu l^rtrrd, nnd the jioHNegHiun bo witii intent, &.C., in no otlcneo either ut coiiinion law « by Klatute. See 1 UiUH. oil CriiiieH, 44, SliarH wood's ud. Piiil. Itill. THE KING V. ROSSITER. [*50] In an indietincnt for robbinff a mail of n bag of letters, it is not necessary to stuto an asportation, but it is auilicient to usu the words of the statute. SiMOX RossiTER was tried and convicted before Johnson, |., at the Summer Assizes at Wexford, in 1825, for a luail coach robbery. The indictment was under the ,|3 & 24 Geo. III. c. 17, s. 37 (a), and contained three Ijounts. The first (as far as it is necessary to state it ^r the present question), charged that the prisoner 11 1^^ 11' 51 JEBB'S RESERVED CASES. [January 25 arranged, tbrougli persons of the names of Wihon and Graham, that they sliould be driven on the same day [*52] to the water's edge, for * the purpose of exporta- tion to Liverpool. That he set off himself immediately for that town, but that after his arrival there, he receiv- ed only 29 sheep, instead of the 30. That ho thereupon returned to DiihUn, and that on the 6th of July, being the Wednesday next after the purchase, he saw the missing sheep in a field near Vulliii. Samuel Fisher, the next witness, being examined, swore that on the same Thursday mentioned by Mr. Gncst as the day of the purchase, the prisoner and anotlier man were driv- ing a lot of sheep down (treat Brunswich-street (which appeared to have been the route to the Pigeon House); that he was standing at the time in his timber yard, which opens upon the street, when the two drivers solicited permission to leave one of the sheep, which they represented to have tired, for some time in his yard ; that he in consequence took from them a sheep, (which was proved to be the one identified by Mr. Guest upon his return to Dublin, as the missing sheep), and that tiie drivers thereupon proceeded forward in the same direction as before. That, however, suspecting a fraud, he took measures with the police, by means of whicli the prisoner, who called the next morning for the sheep, wa,s apprehended. The peace officer who made the arrest was examined, and proved declarations of the prisoner as to the property of the sheep, which I do not consider it for the purposes of this case necessary [January 25 Wilson and le same day ) of exporta- mmcdiately 3, he receiv- e thereupon July, being he saw the miiel Fisher, that on the IS the day of 1 were driv- Hreet (which jeon House); timber yard, two drivers sheep, which time in his hem a sheep, ified by Mr, issing- sheep), jrward in the suspecting a by means of morning for e olFiccr who :1 declarations lieep, which I ;ase necessary ]83fi.l REX V. UEILLY. .VI to detail. I should have observed, that Mr. Guest did not accompany the drivers. " Neither of tiic persons ( Wilson and Graham), al- luded to by Mr. Guest, was examined, and the case in 'some respects came imperfectly before the Court; how- ever, it was to be collected from all the circumstances, and such was the opinion of the jury, that the prisoner and his * companions were of the class of persons [*53] who drive for hire, from Smithfield market, cattle which •may happen to be purchased there, to such places as .the purchasers or those acting for them may direct. The prisoner was not defended, and produced no wit- nesses. " It did not appear to me that there was any reason- able ground for presuming that the sheep were taken by .the drivers originally (I mean upon the delivery for the purpose of being driven), with any felonious intent, and I did not, therefore, in terms present that consideration of the case to the jury. I thought, however, that the ^ase might be reasonably assimilated to the familiar |Dne in the books of a carrier separating part of what he '|s entrusted to carry from the residue, and embezzling luch part; and I directed the jury, if they were satisfied that the lot of sheep the prisoner and his companion ■ were driving, was the one purchased by Mr. Guest, and that whilst driving them upon the occasion stated, they singled out and took from the lot at large the sheep in I, 'lit !*'^ ,: m .IKIUrS RESERVED CASES, [January il'i (jucslion, with the intention of fraudulently converting it to their own use, to find in such event the prisoner guilty. He was found guilty accordingly. " I determined to reserve the question as to the pro- priety of my direction, for future consideration. I have, accordingly, reflected upon it a good deal, and adverting to some modern determinations in EiKjland, but parti- cularly the case of Rex v. Madox, Iluss. and Ry. Cr. C. 92, I apprehend that my direction to the jury was erro- neous, and that I should in the circumstances and event supposed in that part of my charge, have directed an [*54] acquittal. I * think it right, however, to submit the case to the consideration and decision of the Judges." The Judges were v ^""^imously of opinion that tlic conviction was wrong, i.iat the prisoner was not a servant, but a special bailee, and that according to the adjudged cases there was not such a severance of the sheep as to put an end to the bailment. They also held that the animus furandi should have been left to the jury («). (a) Vide Rex v. Slock, 1 Mood. C. C, 87. Sec alwo unto, King v. Beard, p. !), and cisch in noto: parlicuhirly flic case of Rex V. M'Nainee, 1 Moud. 3G8, u case very Kiuiilar to tiiu i>rc,scnt, but where ei;rli' Judges, (four being absent,) held tliat tlic drovier was but a servant, and that his possesHion was the owner's possession, and, therefore, that liio conviction was riglit. Sec post, King v. Gourlay, p. 83. [January i.'.') converting ,he prisoner 5 to the pro- on. I liave, id adverting r/, but parli- 1 lly. Cr. C. ry was erro- Ds and event directed an er, to submit tlie Judges." ion that tlic r was not a ording to the 3rance of the They also B been left to I63r,.] in:X V. SIIKRUAN. 04 icularly the caKi- o' uiit, but wlieto ciclil a survant, and tin' the convictiim was THE KING V. SIIEEIIAN. Jhhl unanimously, hy eleven Judges, tliat tlie testimony of an accomplice, tiinujrh nlldijcljier uncorroborated, is evidence to goto a jury; tliat a conviction upon siicli evidence is legal; and that there can be no general rule as to the cautionary directions to hi' given to the jury resjiecting ids evidence. IJut held also (hy six Judges to five), that the jury should, in the generality of cases, ho told, that it vas [he jirurticf to disregard the aeeoniplice's testimony, uidess there was some corroboration; and that corroboration as to the circumstances of the case merely, and not as to the person charged, is deserving of very slight consideration. David Siieeiian was indicted for burglary in the house of Thomas Cummings, on the niglit of Thursday, the 9th of December, 1824, and was tried before Moore, J., at the Spring Assizes for the City of Waterfoj'd, in 1825. Thomas Cnm?m?igs deposed, that on the night of the 9th of December, when he was in bed in his house at Drum- risk, the door (which had been fastened) was broken in a little before midnight, and four persons entered. He feaw there were four by the light of the moon. They . made him cover his head, and threatened to murder Mhim if he looked up ; he could not therefore see their _;|Jaces. They asked lor arms; he had none, and told |them so. They lighted a candle and searched, and temained nearly an hour in the house. There was one all the time over him as a * guard. When they [*55] went away, he got up and lighted a candle. All his and his family's clothes were taken. On the 11th, several of the articles that had becii taken, were found m il': 13 li' f ■; '! ''X'. m JEDB'S KESERVRD CASES. [February 1') by him in the house of one Eleanor Purcdl in Water- foril ; and a cloak of liis wife was found in the house in which James Sullivan (the accomphce after mentioned), was apprehended. Mar?/ Cumminga, wife to the last witness, deposed generally to the same facts, and identified the cloak, and several other of the articles. I: James Sullivan, an accomplice, stated, that on Thurs- day nitfht, two weeks before Christinas, he and the prisoner. Shcehan, and two others, went to the house of Thomas ^uhimings to conmiit a robbery. Tlicy had planned it two nights before. The prisoner, Shechaii, oljserved it was a snng place, and that there was no danger in going. SJieehan and the others came to wit- ness's lodgings in Waterford for the purpose, and they set out abou'i. 9 o'clock — it was about six miles distant. They were something more than two hours going. The door was fast; they forced it in, and all four went in; they asked was any stranger within, and were answered there was none ; they then directed the persons in bed to cover their faces, or they would injure them. The prisons, Sheehan, then lighted a candle, and gave it to witness to hold. They had two pistols. There were two beds in the room. After being told there were no strauL^crs, and before lighting the candle, tliey asked for arms, and were t'dd there wer(^ none. They gatlicr- ed all the clothes in two bundles, and went olF, making liiiKi [Fctiruary 1.^ // in Watcr- the house in mentioned), 1820.' REX V. SHEEIIAN. 50 short cuts to avoid the road ; and about a mile from the town, they divided * the things taken. The cloak [*5G] that the former witness identified, fell with other articles to his share. ess, deposed le cloak, and at on Thurs- he and the the house of , They had ler, Sheehaii, here was no came to wit- ose, and they niles distant. (Toinij. Tht" bur went in; ere answered ersons in bed them. The md gave it to There were there were no !, they asked They gathcr- it off, making l- The learned Judge left the case to the jury, with the jusual observations as to the jealousy and suspicion with which they ought to receive the evidence of an accom- V plic(>; directing them not to act upon it, unless in their opniion it were corroborated by the testimony of the other two witnesses, if they considered them entitled to credit. The jury found the prisoner guilty, but re- commended him to mercy, which was extended to him, so far as to save his life; but considering the doubts which had been then lately suggested, where the cor- roborative matter is general, as to the mere details of the transaction, and does not substantiate any thing which the accomplice has said respecting the prisoner person- -ally, the learned Judge reserved the rpiestion, whether in this case there was any evidence for the consideration '|of the jury, to corroborate the accomplice, as to the pri- ijoner Shcehcoi being one of the burijlars. All the Judges being present, except O'Grady, C. p., they were unanimously of opinion, that the charge ■iind the conviction were right; and that in point of law, the testimony of an accomplice, though altogether uncor- roborated, was evidence to be submitted to a jury, and that a conviction upon it would be legal. But a long 1, rki /• 111 56 JKUB'S RESERVED CASES. [Fubruuiy ]!i discussion took place, respecting the practice oh the sub- ject of accomplices, and the manner in which Judges ought to advise jurors with regard to the credit to be given to them, and to the degree of weight to be at- tached to certain particulars deposed to by unimpeached witnesses, as confirmatory of the accomplice's testimo- [*57] ny ; and the * Judges, with regard to these ques- tions, delivered their opinions seriatim. 'ill It was the opinion of Lord Norbury, C. J. C. Pleas, M'Clelland, B., Burton, J., Pennefather, B., and ToRRENS, J., that the credit of an accomplice ought, generally speaking, to be offered to the jury, like the credit of any other man of impeached character, and that, generally speaking, a corroboration in the circumstances of the crime charged, though entirely unaccompanied by any circumstance applicable to the prisoner on trial, or ♦:o any other person charged by the accomplice, was a substantial corroboration, fit to be examined and weighed. That there ought not to be any rule of priictice, by whicii juries should be advised to disre- gard, or to pay slight attention to, such circumstances of corroboration as aljove mentioned. It was the opi- nion of BusiiE, C. J., Smith, B., Moore, J., Johnson, J., Vandeleur, J., and Jeer, J., that an accomplice wfifi in degree to be treated differently from other wit- nesses of impeached character; and that a jury, besides being cautioned to regard him with jealousy, ought to be told, that it was the practice to disre ard his testi- :•; thi 182fi. Ri:X V. SirCFIIAN. rn mony, unless there were some corroboration. With regard to corroboration, it wan the opirdon of tliese Judges, that the accompHoe being supported in his narrative of the transaction only, without corroboration as to any person charged, was so shglit a confirmation, as to be entitled to very httle, if any, attention, and that a jury should generally be so told. They thought so on these grounds: that ex concesso, an accomplice was concerned in the crime, and knew all the facts; that it was his interest to relate the facts only, because other- wise he would run the risk of differing from * the [*58] account given by some person present at tie commission of the crime; therefore, that his uttering truth, with regard to the facts, did not lead to the inference, that he also told truth with respect to the persons concerned, unless he had reason to suppose that tl\ere was some unimpeached witness, who could also prove, that the persons charged by him were the persons concerned; and, inasmuch as in the case supposed, no such person appeared on the trial, he might well suppose that their persons were unknown, and could not ]m iiloiitifuHl, so that he might safely charge whom he pleased. — The Jud(;. should bo submitted to the jury, with cautionary direc- tions, more or less strong, according to the particular circumstances of the case : the latter Judges holding, that juries ought, generally speaking, to be told of the practice, and to be advised to acquit, where there was no confirmation whatsoever, and ought also to be told, that a mere confirmation in the circumstances of the trans- action, not brought down in any respect either to the prisoner on trial, or to any other person charged by the accomplice, generally speaking, scarcely, if at all, dis- tinguishes the case from one of no confirmation. In this case, the prisoner was recommended for pardon (a). (a) For the opinions of the late Lord Chief Baron Joy upon the subject of this case, sec liis Treatise "On the Evidence nf Accomplices " 1836, Sec also Rex v. ttirhett and another, Russ. & Ry, 251; vvlicre it was held tiiat an accomplice being eontirnied as to the |iiirticulars of his story, did not require confirnmtiun as to the person charged. The case, however, is not very fully nor satistixctorily reported. Sec post, The King \, Casey, p, 203; also, Roscoe'a Cri- minal Evidence, 143, Sharswood's cd. Pltil, 1840. l»-2(i.] REX 0. GETTY. 59» * THE KING at the Prosecution of the Bank of Tnl nd v. GETTY. Tlic prisoner wns convicted on an indictment for Imving in his possession a forfjed note of the Hank of Ireland. The first oonnt set out the note with the nnnie of a si^ninjj ci(!rli annexed : the second set it out, us if the name of llie siy^Mip;j clcri< had been obliterated. Tiic note wlieii produced iiirreci; with timt setc.ii in tiio Rccond count, but no cvidonco was given as to the ubl uratiun. tfeld timt the conviction was bad. The prisoner was tried before Johnson, J., upon an in- dictment, of which tlio first count stated the note with the name of u signing clerk of the Bank of Ireland an- nexed, and as the note would appear if the forgery were complete, and no obliteration had taken place. The second count set out the note, as it appeared when pro- duced in evitlence, that part on which a signing clerk's name would appear, if such name had ever been an- nexed, being obliterated, and being, in fact, worn away; but no trace of such signature appeared. No account was ofiven in evidence how the obliteration, if such there had been, was effected, nor, in fact, what particular name had been there, if any such ever had been affixed. The question was, did the evidence support the first count? — and if not, could the indictment be supported on an instrument, such as that stated in the second count ? t ■iW 4'1 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^Ktii£ ■tt lyi 12.2 I.I Z li£ 12.0 1^ HA 11.25 |U |L6 - 6" v%' % {►\ // Fhotographic CarposBtim 13 VMIT IMAM STRHT WIISTIil.N.Y. l4Sie '^ h '* S9 JEBB'S RESERVED CASES. [May 31 The prisoner was convicted, but sentence was respited, until the opinion of the Judges should be known. The Judges were unanimously of opinion, that the conviction was bad. [*60] THE KING V. JOHN WHITE LARKIN. The prisoner was convicted upon two indictments, one for shooting' at A. with intent to kill him, and the other for shooting at B. with intent to kill him; the jury finding that he intended to kill whichever the shot should strike, but not both : Held that he was rightly convictcri. It is no defence to such an indict- ment that the offence was committed in resistance to the execution of a Civil Bill ejectiiiert decree, and thut no affidavit verifying the Civil Bill had been lodged with the Clerk of the Peace. The prisoner was indicted under the EllenhorougJi Act, 43 Geo. III. c. 58 [a), before Bushe, C. J., at the Spring Assizes at Clonmel in 1826, upon two indict- ments; the first was for firing a shot at James Jones, with intent to murder him. The second was for firing a shot at John Canterell, with intent to murder him. The evidence was, that Jo?ies and Canterell, as assistants to a bailiff under a special warrant upon a decree in a (o) Now repealed; but the 1 Vict. c. 85, s. 3, contains nearly similar provisions. ' V, 1826.] REX V. LARKIN. the civil bill ejectment, endeavoured to execute the warrant, and were resisted by the prisoner, who fired a loaded pistol at them. The jury found him guilty upon both indictments, but stated to the Judge, that they believed he fired at both Jones and Canterell with intent to kill whichever of the two the shot should strike ; but that they did not believe he intended to kill both. The learned Chief Justice reserved for the consideration of the Judges the question, whether the convictions were right. A written argument on behalf of the prisoner was submitted by T. B. C. Smith, his counsel, to the twelve Judges; in which he referred to the following authorities: Esp. Law of Actions on Statutes, 64; Gastineaux's case{b); Curtis \. the Hundred of Godley{c); Rex V. Shepherd {d); Rex v. Austen [e); Rex v. Tay- lor {/); Rex V. Empson{g); 1 East's Cr. L. 412; Rex v. DuJJin and Marshall {h). * Nine Judges (viz. Lord Norbury, C. J. C. [*61] Pleas, O'Grady, C. B., M'Clelland, B., Moore, J., Jebb, J., Burton, J., Pennefather, B., Vandeleur, J., and Torrens, J.,) were clearly of opinion that the convictions were right. They held it to be fully estab- lished by the authorities (a) that if there bo malice m m JA V: \^i ih) 1 Leach, 417. (d) 1 Leach, 539. (/) RusB. & Ry. 373. (A) Russ. & Ry. 3G5. {a) See Rtx v. Baihy, Russ. & Ry. 1 ; Rex v. Hunt. 1 Mood. C. C. 93 ; and Rex V, Gaitineaux, 1 Leach, 417. (c) 3 B. & C. 248. («) Ru&s. & Ry. 490. ^g-) 1 Leach, 224., W Gl JEBB'S RESERVED CASES. [May 31 against one, and the shot he fired with a malicious intent against him, and it should strike another against whom there was no malice, yet the offence under the act is complete ; and that if a shot be fired at several, with intent to kill any one of them whom the shot might strike, the law infers a malicious intent against any one who may be struck, and consequently against all who may be struck; and that it is quite analogous to the case of murder, where under such circumstances if one should be killed, though there was no malicious design against him in particular, it would clearly be murder. Smith, B., also thought the conviction good, upon the authorities, though but for the authorities he would have had doubts. BusHE, C. J., thought the findings were contradictory. Johnson, J., thought the convictions bad. He con- sidered the intent to be a question for the jury, and that as there were two indictments, one stating an intent to kill Jonec, and the other an intent to kill Canterell, the verdict in the first negatived the intent laid in the second indictment; and vice versa, the verdict in the second negatived the intent laid in the first. * [*62] Another point was reserved in this case. By the statute {a) under which the civil bill decree was («) 56 G. III. c. 88, 8. 7. 1836] REX V. ROGAN. made, it is required that an affidavit shall be made, and lodged with the Clerk of the Peace, verifying the con- tents of the civil bili. It appeared that no such affidavit had been made, and it was contended on behalf of the prisoner, that the decree was therefore void, the warrant 7oid, the officer and his assistants trespassers, and resis- tance justifiable. But the Judges were all clearly of opinion that the objection was unfounded, for that the court having jurisdiction, no error or irregularity in the previous proceedings could affect a warrant legal in its frame. THE KING V. ROGAN and Others. The prisoner was convicted on an indictment purporting to be for highway robbery, but omitting the words as to taking from the person of the prosecutor. Held tliat tliis was a bad conviction for highway robbery, but good for larceny. i I! The prisoners were convicted before Lord Norbunj, C. J. C. Pleas, at the Meath Summer Assizes in 1826, upon the following indictment, on clear evidence, of a highway robbery. "The Jurors for our Lord the King upon " their oath do say and present that Richard Rogan, late " of Painstorvn, in the county of Meath, yeoman, Michael " Byrne, late of the same place, yeoman, and Bernard " Rogers, late of the same place, yeoman, on the tenth : u t- < C3 JEDB'S RESERVED CASES. [November 15 " day of April, in the seventh year of the reign of our " Sovereign Lord, George IV., at Painstorvn aforesaid, " in the said county, in and upon one Joseph Kelly, in " the peace of God, and of our said Lord the King, then " and there feloniously did make an assault, and him, " the said Joseph Kelly, in bodily fear and danger of his " [*63] life then and there * feloniously did put, and "four yards of blue cloth, each yard then being of the " value of ten shillings, six pieces of bazil skins, each '• piece then being of the value of one shilling, and three " pieces of silver coin, of the current coin of this realm, " called half crowns, each of the said pieces of silver " coin then being of the value of two shillings and six- •* pence, of the goods, chattels, and monies of the said " Joseph Kelly, then and there feloniously and violently " did steal, take, and carry away, against the form of " the stixtute in such case made and provided, and against " the peace of our said Lord the King, his crown and "dignity." When the prisoners were brought up for sentence, counsel on their behalf moved in arrest of judgment, upon the ground of certain defects and errors in the indictment, and principally because it wholly omitted the usual words of taking from the person of the prose- cutor, from whom it had been clearly proved in evidence, that the goods, &c. laid in the indictments, were taken, upon the highway where the prisoners had assaulted him, and where they left him apparently dead. Coun- BH 1836.] REX V. PKENDERGAST. 63 sel at both sides finally agreed that the learned Chief Justice should consult the other Judges as to whether any and what judgment should be pronounced; whether capital, as for the highway robbery, or for a transport- able larceny. There was no doubt as to the facts of the case ; fear, bodily danger, and violence, had been proved. The Twelve Judges unanimously ruled, that this was a bad conviction for highway robbery, but a good one for larceny. Sec 3 Russell on Crimes, 61, Sharswood's cd. Fiiil. 1842. THE KING V. JOHN PRENDERGAST. [*64] Conviction for perjury held bad, where an ohjcction was taken in arrest of judg- ment that the indictment did not state that the false swearing was with respect to a matter essential to the matter in issue ; although it appeared in evidence that it was so. The prisoner was tried before Johnson, J., at the Sum- mer Assizes at Kilkenny, in 1826, upon the following indictment : *' The Jurors, &c. do say and present that •* John Prendergast, late of &c., on &c., at a general " Quarter Sessions of the peace, holden at Thomastown, " in and for the County of Kilkenny, on &c., before G. "P. Bushe, Esq., assistant barrister of and for said 11 it I,; • I ' MT. <'' mm 64 JEBO'S RESERVED CASKS. [Nuvciiibcr 15 County, and one of the Justices, &c. for the said County of Kilkenny, and duly appointed to hear and determine matters by civil bill between party and party, and then and there having sufficient and com- petent power and authority to administer an oath in such behalf, was produced as a witness on the part and behalf of William Prendergast and Jeremiah Maker, upon thi) trial of a civil bill brought by one Bridget Burke against the said William Prendergast and Jere- miah Maker, and that the said John Prendergast was then and there in due form of law sworn before the said G. P. Bushe (he having sufficient and competent power and authority to administer an oath to the said John Prendergast in that behalf), to speak the truth, the whole truth, and nothing but the truth, touching the matter then at issue between the said Bridget Burke and the said William Prendergast and Jeremiah Maher; and that the said John Prendergast, not having the fear of God before his eyes, &.C., did then and there upon his corporal oath aforesaid, in his examination aforesaid before the said G. P. Bushe (he then and there having sufficient and competent authority to administer the said oath), wickedly, wilfully, &c., say, [*65] depose, and swear, * amongst other things, in substance and to the effijct following, thai is to say : — that he the said John Prendergast saw a certain lease or written document purporting to be a lease, which was produced upon the hearing of the said issue, signed and executed by one Sylrester Dooly, as lessor, 18->6.1 REX V. PRENDERGAST. M " and by Patrick Prendergast and William Prendergast, " as lessees; and that he also saw the said lease signed " by J. Barry, D. Barry, and J. Heron, as witnesses to "the execution thereof by the said parties thereto; " whereas, in truth and in fact, the said John Prender- *^gast did not see, &c.; and so the Jurors aforesaid do "say and present that the said John Prendergast on, " &c., before the said G. P. Bushe (he then and there "having sufficient power and authority to administer " the said oath to the said John Prendergast in that be- " half), in manner and form aforesaid, did then and there "wilfully, wickedly, &c., commit wilful and corrupt " perjury," &c. The false swearing was fully and sufficiently proved, and the prisoner was convicted. It was moved in arrest of judgment, that the indict- ment was bad, because it was not stated therein that the matter as to which the prisoner was interrogated was material to the matter then in issue. It fully appeared in evidence upon the trial, that the matter as to which the perjury was assigned, was material to the issue on the trial of which the purjury was alleged to be com- mitted. The learned Judge respited sentence, and reserved the point for the consideration of the Judges. The Twelve Judges unanimously ruled, that this was a bad indictment, and that the conviction was wrong. See post, TIte King v. Tierney, 179. I r i\: •66 JEBO'S RESERVED CASES. [November 30 * THE KING V. CHARLES DOGIIERTY. A conviction for manslaughter is sustainable, altliougli there has been no Coroner's inquest, or examination of tlie body, or evidence of medical witncHseN, os to the cause of dcoth; it being sutHcient if tlie cause of death be proved by circum- stantial evidence. ;i!|h ■ The prisoner was tried before Moore, J., at the Summer Assizes for the County of Down, in 182G, for the mur- der of Mary Cummings, by casting and throwing her against the ground, and with his hands and feet giving her divers mortal bruises on her head, stomach, back, and sides. The evidence was, that the prisoner had been seen on a public road to kick or strike the woman down; that she got up immediately afterwards, and they went together to a public house, where she com- plained of being sick and tired with travelling. That they left this house together, and half an hour afterwards the woman was found lying in a ditch, her face and temples covered with bruises, and her eyes blackened. The prisoner was standing on the side of the ditch, and he was taken into custody. The woman was removed into a neighbouring house, where she died in about five minutes after her arrival. Her cloak and bonnet were found in the field adjoining the ditch, and there were marks among the bushes and along the road as if some- thing had been dragged across them into the ditch. The prisoner confessed that the bruises which appeared i'iii! 30 182C. RHX V. KINSLEY. 66 upon the woman had been inflicted by him. There was no Coroner's inquest, nor was the body examined at all; nor was there any evidence of any medical or other person to prove that her death was in consequence of the injuries which caused the external appearances in question ; and the Jury having found the prisoner guilty of manslaugliter, the learned Judge respited the sentence in order to obtain the opinion of the Judges, as to whether the verdict of manslaughter could be sustained, where no such evidence with respect to the cause of death had been produced. :!' \i. F , ; ,; 111 * Nine Judges, (Lord Norhury, C. J. C. [*67] Pleas, 0' Grady, C. B., and Smith, B., being absent,) unanimously held that the conviction was right. THE KING V. MOSES KINSLEY. Parol evidence of a confession licld to be admissible, it being proved that tlic con- fession was not taken down in writing whilst the prisoner was before the magis> irate; although tlicre was no proof that it had not been put into writing within two days, under 10 Car. 1, Scss. 2. c. 18. The following report was submitted by Sir Jonas Greene, Recorder of Dublin, to the Twelve Judges : " Moses Kinsley was recently convicted before me at the Court of Quarter Sessions and Gaol Delivery for lii «T Jl'.UU'rt KGHURVUI) CASLS, I Iirc(3iiit>or 17 n 1 1 ¥'1 I the City of Dublin, of griiud larceny, in liuving felo- niously stolon six plates, of the value of two shillings each, of the goods of T/tamas Ellis, Esfj. 1 permitted Master Ellis to give parol evidence of a confession made by the prisoner before Alderman Darley ; and I have thought it my duty, in consequence of the extensive ap- plication of the principle involved, to reserve for their Lordships, the Judges, the question, whether, under the circumstances hereafter stated, such evidence was legally admissible. *' The prisoner was brought, in the usual course of proceeding, for examination before the Alderman, who explicitly and repeatedly warned him against saying any thing which had a tendency to criminate himself. Questions were put to him thereupon, some by Master Ellis himself, but in the presence, and under the sanc- tion of the magistrate ; after the lapse of a little time, the prisoner said there was no use in denying the charge, and proceeded to state, in detail, the particulars of his offence. Master Ellis, who was the only witness ex- [*68] amined to prove * the confession, before I allowed him to give parol testimony of the prisoner's declara- tions, was asked by me whether they had been taken down in writing; his answer was, that they had not: an objection however was made on behalf of the prisoner, that they ought to have been reduced to writing after Master Ellis had gone away from the office, and the question being asked of him, he said he remained in the ken I not: )ner, ifter the h t\ie l»i(!.] Ki:X » KINSLLIV. r>8 office for some lime after the prisoner was rcmoveil, (luring which period no such occurrence hud taken place; but that ho could not statu what might have iiappcnod after he had withdrawn. The force of the objection would seem to depend upon the 10 Car. 1, Sess. 2, c. 18, s. 3 (vol. 2 of statutes at large, page 77), by which Justices are directed, before they commit in cases of felony, &c., to take the examination of the pri- soner, and the information of them that bring him, and the same, or so much as is material to prove the felony, to put in writing, within two days after the examina- tion (a) ; and the objection itself appears to amount sub- stantially to this, that the magistrate himself should bo produced to negative the presumption, that the exami- nation had, within the period pointed out by the act, been reduced into writing. I have been informed, that two of the learned Judges, who presided some time since at an adjournment of tho Commission Court, accord- ingly so ruled, but I am not apprized of the particular cir- cumstances of that case : it may have been, that upon the objection being taken, and a suggestion by the Court, that it seemed to be a serious one, the evidence was waived on the part of the Crown, as not necessary, perhaps, to * the attainment of justice; for which reason, and [*69] as I know that a great number of convictions have taken :he Commission but else w he pi only upon (a) Tliis Act has been re|)ealcd by tlie 9 O, 4, c. 5.3, s. 1. Rut its provi^iions }iave been rc-cuactcd by the 9 G. 4, c. 54, s. 3, with the exception, that tite limit of two dnyx lias been omitted. i '1 I' 1 ':k W 1 1 \ i< ■ ' 'f 1 [ 1 if il I : JEBB'S RESERVED CASES. [December 17 the kind of evidence which I suffered in the present instance to go to the jury, I feel it of public importance that the question should be settled by the highest crimi- nal authority in the country. P ll !. " The cases principally bearing upon the subject will, I apprehend, be found to be the King v. Jacobs, 1 Leach, 309; and the King v. Lambe, 2 Leach, 552; from which the rule seems to be satisfactorily established, that if the fact upon the evidence stands indifferent, whether the confession was reduced into writing or not, the Court will presume it was (such being the Justice's duty), and reject the parol testimony. I am not aware of any reported case applying in terms this presumption (of being reduced into writing) beyond the period of the actual examination of the prisoner, when by being present he would have an opportunity of rectifying errors or omissions, perhaps, indeed, of repudiating the confession altogether, on the principle of incorrectness. Under the statute, it is the duty of the magistrate to return to the next Gaol Delivery the examination, if, in point of fact, it was taken down in writing; no exami- nation was returned to the Court in the case before me. However, it is perfectly clear, that the presumption that the magistrate would do his duty by returning the examination in writing, if there had been one, is not allowed to apply so as to let in parol evidence of the prisoner's confession, where the fact upon the evidence stands indifferent, whether the examination at the time ft the ness. e to if, in ami- me. that the 3 not f the lence time 18i2C.I REX v. KINSLEY, 6'J Whe- of takiii;? it was or was not reduced into writing ther, however, tlie presuinption he equally * inap- [*70] plicahle in a case which supposes the reduction to writ- ing to he alter the examination, and after the prisoner's retirement from the office, may, perhaps, admit of a dif- ferent consideration. " Our statute of Charles is, in the particulars cited, a transcript of the Act of the English Act 2 & 3 Ph. &, M. c. 10. Mr. Peers Act of last Session, for improving the Administration of Criminal Justice in England {a), has repealed the Act of Philip and Mary; it has re-enacted however (amongst others) the provision in question, omitting the words " within two days after the exami- tion" (^>). Mr. Justice Grose, upon delivering his judg- ment in Lambe's Case (c), adverts to a decision of the Judges in the King v. Hall and others, in the words fol- lowing (ost. m il THE KING V. PHILIP JONES and Oihers. The informations, warrant of committal, and indictment, stated an offence committed on Monday the 12lli. In the course of the trial it became necessary to fix the precise date of the offence, which was proved to be Monday the 5th. Held, that a conviction under these circumstances was legal. \a' The prisoners were tried before Bushe, C. J., at the Spring Assizes for the King's County, in 1827, upon a charge of burglary and stealing from the dwelling-house, and convicted upon satisfactory evidence; but during the progress of the trial a circumstance was disclosed 1827.] REX V. JONES. 79 la g Id upon which the prisoner's counsel insisted as rendering any conviction * illegal. In summing up the case [*73] to the jury, the leirned Judge told them that the cir- cumstance insisted upon ought to make them the more cautious in considering tlieir verdict; and after their verdict he reserved for the consideration of the Judges the question, whether it affected in any manner the legality of the verdict. The point was as follows : — The crime was committed on Monday the 5th of March, 1827, and on Tuesday the 13th the prosecutors, who were persons in the lower class of life, went before Mr. Dames, a magistrate, and described to him the trans- action as having occurred on the last Monday, by which he in mistake understood Monday the 12lh, and accord- ingly he, on the 16th of March, drew up, in his own handwriting, informations for the prosecutors, describing the transaction as having occurred on Monday the 12th, to which they swore; and he committed the prisoners on that day by a committal in the following words : — " You " are hereby required to detain in your custody the body " oi Philip Jones, &c., who stand charged before me upon "oath for burglariously entering the house of Denis " Connor, on the night of the 12th of March, 1827, and " them safely to keep until legally discharged ; and for " so doing this shall be your warrant. — Sealed and dated «' this 16th day of March, 1827. "F. L. DAMES." " To the Keeper of His Majesty's " Prison at Philipstown." :: m i' « : If 73 JEBU'S RESERVED CASES. [May 5 Upon the informations returned to the Crown Office, the Clerk of the Crown framed indictments, stating the offence to have been committed on the 12th instant, upon which indictments the prisoners were tried. In the progress of the evidence it became material to fix the precise day upon which the crime was committed ; [*74] which being ascertained *to be the 5th, the prisoners' counsel produced and proved the committal, and insisted that the prisoners, five of whom it appeared lived four or five miles from where the offence was com- mitted, and who were not arrested until the 16th, had been taken by surprise, and were induced to shape their defence by bringing to the Assizes many witnesses to account for them upon the 12th, which witnesses had now become unnecessary ; and one of several witnesses who had been produced for another purpose, (viz. that of discrediting the witnesses for the prosecution), swore that she had come fully prepared to prove on the part of some of the prisoners, that on the night of the 12th, they were employed in such a manner, and at such a time, as to make it impossible for them to have been present at the commission of the offence. The prisoners were sentenced to be executed on the 12th of May, 1827, unless the Judges should be of opi- nion that the conviction was bad. It was the unanimous opinion of Eight Judges U^imt». 1827.] REX V. MARA. {G' Grady, C. B., Smith, B., Jchh, J., and Torrens, J., being absent), that the conviction was right. See Rex V. Treharne, 2d Moo. 2!)8; and Roscoc's Crim. Evidence, 101— tit. Aver7nenls aa to time — Siiurswoud'ti cd. Pliil. 1810. I 1 THE KING V. JOHN MARA and PATRICK MUL- [*75] LOWNEY. n the opi- rOGES Evidence of the prisoner's handwriting' by a witness who had never seen him write, but who swore ho was enabled to form a belief from op]iortunitie8 which he had hud of knowing his liandwriting, independently of comparison : Held sufficient, without any other evidence that the prisoner linew how to write. The prisoners were tried before Bnshe, C. J„ at the Spring Assizes for the King's County, in 1S27, upon indictments for burglary and robbery in the dwelling house of W. P. Vaiighan, Esq., on the 11th of Decem- ber, 1826. MuUowney was acquitted, and Mara was iound guilty. Part of the evidence against Mara was a paper proved to be in his handwriting, which the jailor's assistant had found shortly after the committal of the prisoners, tied round a turf with a string, in the window of a room in which he and many other prisoners were confined, and which was exactly over another room in which Mullorvnetj was confined with other prisoners, and which had a window under that in which the paper 1i •+! • Il^ ! I i 1 : ; 75 JEHU'S REHERVED CASES. [Miiy 5 was found. The jailor had orders to keep these two prisoners separate, and the paper purported to be a communication from Mara to Mullowtiey, and contained allusions to the robbery, and to their defence on their trial; which made it a material part of the evidence against Mara, which was altogether circumstantial. The prisoner's counsel objected to the evidence upon which the learned Chief Justice allowed the paper to be proved to be in the handwriting of the prisoner, and which was as follows: — Mr. Vaughan, the prosecutor, admitted that he had never seen the prisoner write, but swore that he had opportunities of knowing his writing, which enabled him to form a belief about it. Those opportunities were derived from the following circum- stances : — The prisoner had engaged with him as his [*76] * herd, in December, 1825, at which time the wit- ness's steward brought to him a paper containing the terms and conditions of the engagement, in the steward's handwriting, and signed in another handwriting, with the prisoner's name, as agreeing to these terms; and Mr. Vaughan swore that such was his usual course of hiring such servants, and that the prisoner continued to live with him as herd upon the terms stipulated in that paper, until the 12th of August, 1826, when the prisoner handed to the witness two papers, the first of which purported to be a notice by the prisoner that he would leave Mr. Vaughan^s service, and the second contained an account of what was due to him under the agreement, and a demand of payment. Mr. Vaughan (I ■ 1827.] REX e. MARA. 76 swore that he settled accounts with him accordingly, and discharged him; he proved tho.se pepers, and swore that he was enabled (independently of comparison of handwriting), from those opportunities to form a belief on oath as to the prisoner's handwriting, and that upon first seeing the paper Oiiered in evidence, ho did form a belief upon it without making any comparison of hand- writing, and believed it to be the prisoner's handwriting. The papers produced by Mr. Vaiighan, which he received from the prisoner, were as follows: — "Sir, I " beg leave to let you know that it is not my conveni- " ence to stop in Golden Grove any longer as herd, on "the terms you offer; therefore I give you notice to " provide a herd in my place as soon as you possibly " can. I remain your obedient servant, "/o/tw MaraP r II f 1 !| % k V " John Mara, and his man, commenced herd in Golden " Grove, for Captain Vaughan, the 16th of December, " * 1825, and continued to the 16th of August, [*77] " 1826, which amounts to " 242 days at lOdf. per day, ..£1018 " Do. his man, do. . . 10 1 8 £20 3 4 " The amount of this I expect you will pay me, as you " did not fulfil your agreement with me. I will give " up the half acre of Bealor, if you will allow me for my 13 »;('' $ . 77 JEDB'S RESERVED CASES. [Mays hi:- h h •>% I h " seed and labour, or I will pay the value thereof. — 12th " August, 1826." Upon tuis evidence the learned Chief Justice allowed the paper in question to be read. The prisoner's coun- sel insisted, among other objections, that evidence ought to have been given to show that the prisoner knew how to write. The jury found the prisoner guilty, and he was sentenced to be executed on the 12th of May, unless the conviction should be held to be bad, upon a question reserved for the consideration of the Judges, as to the sufficiency of the evidence of handwriting. It was the unanimous opinion of Eight Judges {0' Grady f C. B., Smith, B., Jebb, J., and Torrens, J., being absent), that the conviction was right. Sec 2d RuBsell on Crimes, 727, and Mr. Sharswood's notes, Phil. 1841. 1837.1 REX V. CARROLL. 78» *TIIE KING V, MICHAEL CARROLL. Evidence to Rupport nn indictment under tlio Whitcboy Act. It is not ncccmiary to prove, by distinct evidence, that the country was in a Btato of disturbance, if tlio crime itself be clcurly a WJiitcboy offence; as tlio circumstances attending it may demonstrate tlio country to be in such a state. The prisoner was tried before Torrens, J., at the Spring Assizes for the County of Clare, in 1827, on two indict- ments. The first was under the Whiteboy Act (a), for assaulting the habitation of Edward Synge, Esq., on the 19th of July, 1826. There was a second count for injuring the habitation of the said Edward Synge. The second indictment was under Lord ElkiihorouglC s Act (J), for assaulting the said Edward Synge, and being feloniously present, aiding and assisting an un- known person to shoot at the said Edroard Synge, with intent to murder him ; and there were two other counts laying the offence with an intent to maim and disable the prosecutor. U' .tt; The first witness was Edward Synge, Esq. He stated, that he lived at Carhire, in the County of Clare ; was there on Wednesday the 19th of July; there were (a) 15 & 16 G. 3. 0. 21, s. 4. Tliis Act has been amended in some particulars (not aifccting the present question), by the 1 & 2 W. 4. c. 44. (&) 4.*) G. 3. c. 58, now repealed. The 1 Vict c. 85, s. 4, is the corresponding enactment now in force. ii n JEOn'S RESERVED CASES. [Mays H i;!^ himself, three maids, and one man servant, M. Byrne, in the house; he was in bed, and was disturbed by a violent knocking and shouting, and firing of arms; tiie knocking was at tlie hall door, about two o'clock in the morning, and sounded like persons kicking against it ; witness threw up the window of the room where he slept, and saw some figures at the end, and a little in front of the house ; he heard several threatening sounds, such as " bloody Antichrist schools," and "come down;" a voice called to him to put in his head, or he would [*79] blow out his brains ; witness said he * would not, but afterwards did ; there was then a shot fired ; he took up a poker, and went down stairs, followed by M. Byrne; he could not open the hall door, so he went out of the window, followed by Byrne; heard voices say, "they " are coming;" he then ran to the end of the house, and found the prisoner at the wall ; the prisoner had a gun with him, but not pointed at witness ; witness struck him with the poker, either once or twice; the prisoner was knocked down ; witness did not know then whether he was killed ; he then returned into the dwelling-house ; and then went out again, and met some persons coming towards the yard; there might be three persons; he grappled with one of the persons, who had presented a gun at h'm, and struggled; the gun was presented and snapped, and whilst struggling with him, witness was struclc by his servant, by mistake, on the elbow, whilst he had his arm round the man's neck; witness fell from his servant's blow on his elbow; fell at the man's feet, 1837.1 REX r. CARROLL. 19 and grappled his leg and feet, and caught him by the shoes; the man escaped; witness found a hatchet, a gun, a stick, and some other articles, on the ground where the struggle was ; he then went to where Carroll was lying, and brought him into the house; his person was examined, and cartridges, balls, and powder, and a prayer book, were found on him; witness could not state whether there was any shot fired whilst he was struggling with the man; the school house was burned on that night. Witness identified the prisoner. On his cross-examination, he said that he did not think the person who bid him put in his head had any intention of injuring him; the lapse of time was such as to con- vince him it was not his intention to shoot him ; the prisoner was struck twice by witness, and oftener by the servant; he was left for dead; his jaw bone was broken; the prisoner smelt strongly of whiskey, and * appeared to have drank a good deal; it was in [*80] a lane he had the second struggle, rather at the end of the house; the lane was to the northward of the house; a considerable time elapsed (not quite quarter of an hour), between his knocking down the man and finding him again; found him raised on one hand; he had time to have run away, but remained there from inability to move ; heard a snapping or saw a spark of the second gun in the lane ; it was before the struggle he saw the spark or heard the snap ; the man was between five or six yards distant from him ; could not discern the lock of the gun or muzzle, but saw the figure of the gun; i I, f^i- 41. '.[■4- 80 JEBB'S RESERVED CASES. [May 5 there were three figures before him ; had said and still thought they did not intend him a personal injury; received no personal injury, save what he received from his servant. P The next witness, Malachi Byrne, stated that he was in Mr. Synge's employment in July; the first thing he heard was the voices of the people, he did not know how many, outside the house; he put his head out of the window, and there was a shot fired ; he did not see the person who fired ; went into the drawing-room, and found his master, who asked him to go out ; they went out of a window; had a piece of iron in his hand : saw a man (whom he identified as the prisoner), engaged with his master at the end of the house ; assisted his master, and knocked the prisoner down; the prisoner had nothing in his hand when witness went up; he went through a lane to the other side of the house; went by the south side of the house, and passed the house ; met the man, and saw a flash of fire, as if from the gun going off", and heard the report in the lane ; his master and the man grappled with one another; witness struck at him, and his master fell, and the man got away ; returned to [*81] * Carroll, and brought him in; found a gun where Carroll was lying, and a hat; went out again, and did not see any body; witness found a gun and a hatchet where Carroll lay, and found a gun ?ind stick where the second struggle took place ; examined the gun found in the lane in the course of the day ; the gun was 3B 1827.] REX V. CARROLL. 81 empty, but he could not speak as to the state of the lock; CarrolVs gun was loaded with powder and shot and ball; witness brought Carroll in and searched him, and found ball, and loose powder, and cartridges on him ; he thought prisoner had drank liquor, and that he was tipsy. On his cross-examination, he said that he was still in Mr. Synge's service. The case for the crown closed, and the prisoner did not call any witnesses. The jury found the prisoner guilty on the first indictment, and acquitted him on the second ; and by consent of the counsel for the crown, the verdict was entered on the first count of the indict- ment, under the Whiteboy Act. The learned judge pronounced sentence of death on the prisoner, and fixed the day of his execution for Saturday the 12th of May, in order that in the meantime the decision of the Judges might be had on two points urged on behalf of the pri- soner, and which his Lordship reserved for their con- sideration. First, whether upon the evidence the facts proved constituted an offence under the Whiteboy Act — and secondly, whether the country not having been proved to have been in a state of disturbance, a legal conviction could be had under the statute ? M i h fci" hf' a Nine Judges met, {Smith, B., Jebb, J., and Torrens, J., being absent), and Seven [Bushcy C. J., Lord Nor- burij, C. J. C. Pleas, McClelland, B., Moore, J., Johnson, J., Burton, J., and Vandekur, J.,) were of opinion that the •82 JEBB'S RESERVED CASES. [May 16 * conviction was right; all of these seven (except John- son, J., and Burton, J., who had doubts on the first ques- tion), holding that it was sustainable on both grounds. O' Grady, C. B., and Pennefather, B., held that the con- viction was wrong on the first ground. Torrens, J., (who was absent from illness), sent his opinion that it was right. Smith, B., sent his opinion that it was wrong on the first ground (a). (a) See tliis decision referred to by Buahe, C. J., in Lis judgment in Mitchell v. Blake, 1 Huds. &, B. 199. THE KING V. GEORGE GOURLAY. 1 ! n Embezzlement. The prisoner was a runner of the Bank of Ireland till 6 o'clock every day, and after 6, to G. & W., public notaries. Before 6 o'clock one day he received from D. money to pay bills of exchange which had been discounted by the Bank, and cf which, owing to some mistake, payment could not bo received at the Bank. Tlie prisoner promised to pay tiiem at tiie office of G. & W. The same evening after 6 o'clock, he paid a part only, and returned to B. some of the bills as if they had been paid, keeping the rest of the money and bills. Held, tjiat the bills and money were received by the prisoner as the ser- vant and clerk of G. & W, and that therefore a conviction for embezzlement in tliat character under the s'.. ute was good. The prisoner was tried at the Commission at Green St., before Burton and Vandeleur, J. J,, upon an indictment founded on the 51 G. III. c. 38 (a), which charged him, sai " Wt] " san "of \U (a) This Act is now repealed, but similar provisions are contained in the 9 Geo. 4, c. 55, 8. 40. p St., Itment him, 1 9 Geo. 1827.] REX J). OOURLAY. 89 " for that he, being a clerk to Messrs. Gibbons and Wil- " Hams, and employed and entrusted by them to receive '■ money, bills, notes, and other valuable securities for " and on account of them, did on, &c. at, &c. by virtue " of such employment and entrustment, receive and take "into his possession for and on account of the said ** Messrs. Gibbons and Williams, divers, to wit, five " bills, commonly called Bank Post Bills, each for the " sum and of * the value of £20, and divers otlier [*83] " securities, called Bank Notes, then and there being "the property of the said Messrs. Gibbons and Wil- ^^liams; and that the said George Gourlay having so " received, and taken into his possession the said notes, " &c. for and on account of his said employers, after- " wards, to wit, &c. at, &c. fraudulently and unlawfully "did secrete and make away with the said bills and " notes; and so the jurors, &c. say that the said George " Gourlay so being such clerk, and entrusted as afore- "said, did fraudulentlj'' and unlawfully embezzle the " said bills and notes from the said Messrs. Gibbons and " Williams, his said employers, on whose account the " same were delivered to, and taken into the possession "of him the said George Gourlay, against the peace, " and contrary to the statute." The facts were these. The prisoner was engaged as a runner of the Bank of Ireland until 6 o'clock in the evening, and after that time as an evening runner of Gibbons and Williams. According to the practice in 14 '• )!■■> 1 m a: ^:i wt ■'J?' f n ff^-n i|'" % I Il 83 JEnn'S RESERVED CASES. [May 16 the office of Gibbons and Williams, who were Public Notaries, all bills sent to them by the Bank to demand payment or to protest for the Bank, are divided into five parcels every evening, and distributed by them to five runners to colle^f, each runner havinrr a distinct walk. On the 2nd of April, 1S27, John Duffy sent his clerk, Patrick Bray, to pay four bills of exchange, which the Ban!: had discounted for him, and which he had in- dorsed ; and gave him £ 194 \s. Acl, the amount of the bills; there were two bank post bills among the notes so given. The clerk in the Bank Post Bill Office refused to mark these two post bills, on account of some irregularity, in consequence of which they would not [*84] be taken from Bray as payment, * and he was unable to take up the four bills in the Bank. Bray met the prisoner (knowing him to be a runner of the Bank, and also an evening clerk and runner of Gibbons and WilJiains) in the runner's office of the Bank between 5 and G o'clock in the same evenino;, and havino; informed him of the circumstances, asked him to pay the four bills. The prisoner said he would pay them at the office of Gibbons and Williams. Bray then gave him the £194 Is. Ad. for that purpose. The four bills not being paid in the Bank were sent the same evening, according to the usual course, to Gibbons and Williams to demand payment, or if not paid, to protest. The bills were then given by Gibbons and Williams to the prisoner to collect in his walk, in which Duffy, the acceptor, lived, and the prisoner signed a receipt for y J. 827.] REX V. GOURLAY. 84 tliem. He afterwards paid into the office of Gibbons and Williams tlie amount of one of the bills, and delivered to Bray three of them, but kept the fourth bill, and also kept the amount of three of the bills. Two questions were left to the jury: 1st, Whether the prisoner took the bank notes and post bills from Bray for the purpose of taking np the four bills of exchange when they should be sent to Gibbons and Williams, as notaries of the Bank? iidly, Whether the prisoner had in his possession the bank notes and post bills received from Bray, when he (prisoner) deli- vered to J5r«y the three bills due by i)/(^y .'' And the jury were directed, if they were of opinion in the affir- mative on both questions, to find the prisoner guilty. They found him guilty. But it was contended by the prisoner's counsel, that this was not an embezzling by the prisoner, as the servant or clerk of ^Gibbons [*85] and Williams, within the statute ; and this question was reserved for the opinion of the Judges. All the Judges being present, eight Judges (Busiie, C. J., Lord NoRBURY, C. J. C. Pleas, O'Grady, C. B., Smith, B., M'Clellaxd, B., Johnson, J., Pennefather, B., and Torrens, J.,) were of opinion that the convic- tion was right upon the evidence stated. They held that the bills and bank notes were received in the bank by the prisoner as the servant and clerk of Gibbons and Williams; and they relied principally on the case of ■I" 1 1. HI '.£< '> 3 \ I - 1. & • 1 h 1 ^ M m »' JEBB'S RESERVED CASES. [May 16 Rex V. Beecheij, Russ. & Ry. 319. The other four Judges (Moore, J., Burton, J., Vandeleur, J., and Jebb, J.,) were of a contrary opinion: tliey held, that the bills were given to the prisoner, not as servant to Gibbons and Williams, but as the spc'al bailee of Braij, or his employer Dujfij; for that the prisoner's duty or authority to receive money on account of Gibbo?is and Williams did not begin till he commenced his rounds as their runner, to collect payment for bills; and they held that if the prisoner had lost this money, or been robbed of it, before he was sent his rounds, the loss would not have fallen on Gibbons and Williams, or on the bank. See ante, King v. Reilly, 51, and note. vt 1828.] PRESENTMENT FOR SURGEON. 8G» * IN the Matter of a PRESENTMENT for the Surgeon of a prison in the County of CAVAN. A presentment of a salary to a surgeon for attending a gaol under tlio 7 G. 4, c. 7'l, 8. 73, in addition to liis salary under the 5 G. 3, c. 20, and 51 G. 3, c. 62 (Infir- mary Acts), held to be illegal. The following case was submitted by Torrens, J., for the opinion of the Judges: " By the Act 5 Geo. III. c. 20, entitled, * An Act for * erecting and establishing Public Infirmaries or Ilospi- * tals in Ireland,' it is enacted, ' tha* the surgeons to be ' chosen or appointed for the respective county infirma- * ries should be paid by the year a sum not exceeding '£100, to be paid out of the public money.' By the ' 54 Geo. III. c. G2, entitled, 'An Act for amending the ' former Act, so far as relates to the surgeons and apo- ' thecaries of county infirmaries,' it is provided, ' that ' the grand juries of the several counties in which such ' infirmaries are established, shall and may present a ' sum not exceeding £ 100, to be raised off the county ' at large, and to be paid to the surgeon of the infirmary ' in addition to the salary which such surgeon is entitled ' to receive under or by virtue of the aforesaid Act of ' the 5 Geo. III. or any other Acts then in force in Iro- ' land, relating to such infirmaries.' By s. 3 of the last- mentioned Act, it is provided, ' that it shall not be law- ;»:■ U I t-i w. ,^" ft ii'-;: ,.11. 86 JEDB'S RESERVED CASES. [January 30 * ful for any grand jury to presen',. such additional salary, ' unless the surgeon, for whom it is presented, tsliall have * given his attcudaiice and professional assistance, with- * out any other or further fee or reward, to the prisoners * and others in the gaol of the county, to the infirmary * of vi^hich he has been appointed surgeon, if such gaol * be situated within five miles of such infirmary.' [*87] " Surgeon George Roe has been for several years past the surgeon of the county infirmary of the County Cavan, and the gaol is situate within less than five miles of the infirmary ; and Surgeon Roe has, up to the Spring Assizes, 1827, attended the gaol of the county without fee or reward, save the salaries given him by the aforesaid Acts. " By the Act 7 Geo. IV. c. 74, s. 72, it is enacted, ' that the grand jury of every county shall, and they are ' thereby required, from time to time, to appoint a sur- *geon (qualified as therein mentioned) to the prisons ' within their jurisdiction, and every sucli surgeon is ' required to visit every such prison twice at least in * every week, to see every sick person confined therein, * to examine the condition of the hospital, to keep a jour- ' nal, to enter the date of every attendance, &c., and to ' lay such journal before the Board of Superintend ance 'and the grand jury at every assizes.' And it is then provided, ' that it shall and may be lawful for the grand * jury at every assizes after such appointment, to present ■■1 1828; PRESENTMENT FOR SURGEON. 87 * a salary to such surgeon,' &-c. And it is further pro- vided in the same section, ' that notliinr^ in the said Act 'contained shall prevent the continuance of any medical 'attendant appointed before the passinj^ of this Act.' By the 109th section of the same Act, and by the '20th Rule or Ilegulatior for the Management of Prisons, it is provided, 'that the physician or surgeon shall ex- ' amine every prisoner who shall be brought into the ' prison before he shall be passed into the proper ward, 'and likewise examine every prisoner before he be dis- ' charged, and give his opinion whether such discharge 'be safe.' * " The grand jury of the Co. Cavan, at the [*SS] Spring Assizes of 1827, submitted a presentment to the then going Judge of Assize of £40 as a half-year's salary to Surgeon Roe, in consideration of the additional duties to be performed by him under the 7 Geo. IV. as surgeon to the gaol, and in addition to his salary as sur- geon of the county Infirmary. At the last Summer Assizes of the same county, a like presentment for £ 40 was submitted to me, but I was infrrmed by several of the grand jury, that at the Spring Assizes, the learned Judge who then presided entertained considerable doubts as to the legality of the presentment, and upon conference with that learned Judge, I find such infor- mation was correct. As I entertain doubts on the legality of the presentment submitted to me at the last assizes, and the question being one on which an unifor- V pi |;l ib u\ M'-' \ i' Ih ^' "A ^m'.i '. ,i' *m \ ■ h jat; \ 1 -. .. ; Ell m I', 88 JEOn'S RESERVED CASES. [Juno 9fi mity of practice should prevail, I submit the decision of it to your Lordships." Ten Judges ruled, that the presentment was bad. (Burton, J., was absent.) Torrens, J., held the pre- sentment to be good {a). («) See the 6 und 7 W. 4, c. 116, b. 86. THE KING V. PETER DELEANY. •Sliootinir a Bhcriff's bailiff who attempts to nrrcst under a wnrrant regular on the face of it, hut dated prior to the writ on whicii it m f()undi'd, held to be ninn- Hl!iu|;htcr only. A juror having' been by inistaiio entered upon the panel and called and sworn by a wrong name, and an objection having been taken before verdict; held, that tiicro was a niistriul. |!«l The prisoner was convicted at the Commission at Green- street, before Jebb, J., of maliciously shooting at John Burnett, with intent to do him grievous bodily harm. [*89] The * evidence was, that John Burnett, a sheriff's bailiff, and who said he had frequently acted as such, received from the sheriff of the city of Dublin a warrant against the prisoner, g^'ounded on a supposed writ of capias ad satisfacietidum. The warrant contained the names of Burnett and two assistants. He proceeded with his warrant and his assistants to the house of the withoul * in the I8i>8.] REX V. DRLHANY. 89 prisoner about 9 o'clock in tho morning, ami having obtained admission at the hall-door, went up stairs, fol- lowed by his assistants, to a drawing-room, avIkm'c tho prisoner was, along with another man. Upon opening the drawing-room door, his entrance was opposed by tlie man who was with the prisoner; liunicfl said alond, "that he had a writ against Mr. Dekamj.'^ Deleamj, tho prisoner, went into an adjoining bed-chainbcr; Burnett, who had got into tlie drawing-room, endea- voured to follow him into tho bed-chamber; the other man opposed his entrance, but with the aid of his assist- ants he got in. Upon getting in, the prisoner was stand- ing before him with a pistol levelled at him ; Burnett desired the prisoner to drop his pistol and surrender, and immediately went forward to seize him. The pri- soner fired the pistol, and shot Burnett. rn. 's bh, Int lof Ihe led Ihe The warrant was proved, and was regular on the face of it, but it was dated the 1st of February, and the writ, which was produced on the trial, was tested the 12th of February, and issued the 29th of February. Tlie sub-sheriff said there was a mistake in the date of the warrant, February being put for March; but this was not proved. It was contended on the part of the prisoner, that the writ produced not supporting the warrant, Burnett acted without legal authority ; and that if death had happened * in the resistance, the offence would have been [*90] 15 ! r\ '!vvi 90 JKnU'S REHEKVED CASEH. [June 30 1^ I' i but manslaughter, and therefore that the prisoner ought to be acquitted (a). The case was reserved for the opinion of the Judges. A further point was reserved, in case the Judges should hold the conviction to have been right. The jury retired to consider their verdict, and upon return- ing into Court their names were called over as usual ; upon the name of Bernard Fhjnn being called as one of the jury, it appeared there was no such person upon the jury, and that a man named Bernard Fagan had answered to the name oiFlynn, and been sworn by that name. There was no person named Flynn on the panel, but the sheriff, in transcribing the names, inadvertently wrote Fhjnn instead of Fagan, which gave rise to the mistake. It was objected by the prisoner's counsel, before the verdict was delivered, that this was a mistrial. The learned Judge in reserving this latter question referred to Hill v. Yates, 12 East, 229; Doveij v. Hobson, 6 Taunt. 460, (1 E. C. L. 452,) and 2 Marsh. 154; and The King v. Tremaine, 7 Dowl. and R. 460; as bearing upon the point. (n) This consequence followed from the provision in Lord Ellcnborough's Act, 43 G. 3, c. .IS (now repealed), under which the indictment was framed, "tliat if the " acts were committed under such circumstances, as that if death had ensued there- " from, the same would not in law amount to the crime of murder, then tlic prisoner " so indicted should be acquitted." No such proviso occurs in the corresponding Act now in force, 1 Vict. c. 85, which in ss. 3 & 4, distinguishes between the cases where the intent is to commit murder, and where it is not. I figs I sent upoi Where a him, b then pi from /li Was wr The p Summ for the examin crown whose cutor, w sworn, 1 changet which t right to Upon h stances first two 1828. REX r. MORAN. DO Eleven Judges present {Pennrfather, B., being ab- sent) unanimously ruled, tiiat the conviction was bad upon l)oth the points reserved. . 'i.''.ii Vet, I the ere- bncr |ling uses THE KING V. WILLIAM MORAN, THOMAS [*01] MACKEN and Others. Where a witness was eallcd Uy Uio Crown, and the Crown declined to examine liim, but permitted him to bo cross-examined, and then re-exiimined Jiim; and then produced )iii depositions to show that wliat he had tiierein stated varied iVom liis evidence at tlio trial: Held, that u conviction midur these circumstunces WBs wrong. The prisoners were tried before Bushe, C. J., at the Summer Assizes for the County of Westmeath, in 1828, for the murder of John Mathews. Two witnesses were examined for the crown, whose names appeared on the crown book as prosecutors; and a third, William Gltj m, whose name also appeared on the crown book as prose- cutor, was called and sworn. Immediately on his being sworn, the counsel for the crown stated that they had changed their minds, and would not examine him ; upon which the counsel for the prisoners insisted upon their right to cross-examine him, which was assented to. Upon his cross-examination, he stated some circum- stances differently from what had been sworn by the first two witnesses, and favourably for the prisoners; 1 1^ ^'i'i \im il m 91 JEBB'S RESERVED CASES. [November 12 after which tlie counsel for the crown examined him as to some of the matters to which he had sworn, and then asked him if he had given a different account of the matter when examined upon the coroner's inquest, and when he swore informations before a magistrate? and upon his saying that he had not, they put into his hand his depositions on the inquest, and his informations before the magistrate ; upon which the counsel for the prisoners objected, and contended that the counsel for the crown had not a right to examine him to that effect, or to read his depositions or informations to the jury ; and the counsel for the crown insisting that they had such a right, the learned Judge permitted them to do so, stating that in the event of a conviction, he would reserve the question for the opinion of the Judges. The examination accordingly continued, and the depositions [*92] and informations were * given in evidence, and appeared to be contradictory to the testimony of the witness; and after further evidence on both sides, all the prisoners were acquitted of murder, and Moran and MacJien were Ibund guilty of manslaughter. The learn- ed Judge did not pronounce any sentence, but entered curia adoisari vult in the crown book, in order that the opinion of the Judges, whether the conviction was good or not, might be obtained. The Ten Judges {Smith, B., and Vandekur, J., being absent), were unanimously of opinion that the convic- tion was wrong, and that the evidence ought not to have ['■ .m 1828.1 REX ». STAPLETON. 93 been received ; that it is not competent to a party who has produced a witness, and had him sworn (unless it were by mistake of his person), even although he had not been asked a question on their part, to discredit him; that it appeared the questions were asked, and the depositions and informations read for this purpose ; and that if they were read as proof of the facts therein con- tained, they were not legal evidence of those facts (a). (a) Sec Eioer v. Ambrose, 3 B. &. C. 746 (10 E. C. L. 220) ; and Rex v. Oldroyd, Rubs. & Ry. 88. Roscoc on Criminal Evidence, p. 169, Shoiswood's cd. Pliil. 1841. THE KING V. JAMES and CATHERINE ST A- [*93] PLETON. Where husband and wife are both concerned in a highVvay robbery, tlie presence of the husband at tiie commission of the offence is only presumptive evidence of coercion exercised by him over the wife. Semble, that in a case of higliway robbery, coercion by tiie husband is not a defence for the wife. , -*f ,ul ! '■ ■ ! 'C3 C- ;e Tke prisoners were indicted for highway robbery, and tried before Bushe, C. .T., at the Summer Assizes for Carlorv, in 1828. It appeared in evidence that the prosecutrix, Marit Quin, was travelling alone on foot towards Dublin, when she was overtaken by the prisoner r i;i . 'r . ft ■'.s; 93 JEDB'S RESERVED CASES. [November 12 Catherine, whom she did not know, and who accosted her, asking her how fur she had to travel, and advised her to secure her money, as the road was dangerous; she asked her how much money she had, and proposed that they should put together their respective monies, and conceal them ; upon which the prosecutrix said she had but £ 2, and that it was well secured in ' pocket- book, which, at her request, she showed tht; prisoner Catherine; the latter examined it, and returned it to her after they had travelled some time. The other prisoner, the husband, overtook them, arid after a time, left them, and then again joined them ; and after some conversation he seized the prosecutrix and knocked her down, and his wife sat down on her head and held her down while both rifled her pockets of all the property in them. The husband then desired \Az wife to walk on, which she did, taking with her the prosecutrix's bonnet; the hus- band then attempted to ravish the prosecutrix, and on her resistance beat and bruised her in a cruel manner, and tore off" lier clothes and threw them about the road. Her screams brought four persons to he. i-.-dstance, who rescued her and pursued and appreh'i.Jf \ the prisoner. I R In summing up the evidence, the learned Judge told [*94] the * Jury, that if they believed that the woman acted under the coercion of her husband, they ought to acquit her; and if they believed that she acted volun- tarily and without coercion, they ought to find her til; (fill ft. 1828.] REX V. STAPLETON. 94 guilty, if they believed the evidence. The Jury found her guilty, and the learned Judge reserved for the con- sideration of the Judges the question, whether the con- viction of the wife was legal, on two points; First, whether the offence was one in which the coercion of the husband constitutes a defence for the wife. Second- ly, if it were, whether the existence of coercion ought not to be inferred from the presence of the husband as a legal conclusion, without leaving any question upon it to the jury. '■ ;- . i\^i\ M Tj m n All the Judges being present, except Smith, B., and Vandekur, J., Nine Judges held that the question was properly submitted, and that consequently the convic- tion was right. Johnson, J., thought the question was submitted to the jury in a way which might ha\ e left them under some mistake as to the nature of the coercion of a husband over a wife in the contemplation of law. [o It was not necessary, in consequence of this opinion of the Judges to decide the first question; but it was much discussed, and authorities were cited and con- sidered. It was the opinion of the majority, that a wife is not entitled to the benefit of the principle of coercion of the husband in a case of robbery ; but although this was their opinion, they did not decide the question. See Rex v. Morris, Russ. & Ry. 270. Roscoe on Crim. Evidence, 879, and scq. 1 Russell on Crimes, 15, and see). — Shnrswood's ed. Phil. 1841. m i- tiJ •95 JEBB'S RESERVED CASES. [January 23 18a.'). J #IN the Matter of the appointment of a LOCAL INSPEC- TOR to CAVAN GAOL. Tlie Judge of Assize has a discretion to withhold his approbation to the appoint- ment by the Grand Jury of a new Inspector of a County Gaol uiulcr the 7 Geo. IV. c. 74. By the 7tli Geo. IV. chap. 74, sec. 65, (the general Gaol act), it is enacted, — '* That it shall and may be " lawful for each and every Grand Jury of every county, " county of a city, and county of a town in Ireland, with ♦* the consent and approbation of the Court or Judge at " each assizes and in each presenting Term, from time •* to time, to appoint a local inspector for such county, " &c. respectively (such Inspector to be removable by " the Grand Jury of such county, &c. &c., with the "approbation of the next going Judge of assize) to "regulate, under the Board of Superintendance ap- " pointed under this act, the procuring and providing " of Food and necessaries for the prisoners in the Gaol," &c. Previous to the Summer Assizes in 1828, it being known that a vacancy in the office of Local Inspector of the Gaol of Cavan would take place at those assizes, a brother of the High Sheriff of the county declared himself a candidate for the office, and by letters solicited ttf 183!).j CAVAN GAOL INSPECTOR. 93 the gentlemen of the county who were usually called to serve on the Grand Jury, to sapport Jiim by their votes at the next assizes. Some of the gentlemen of the county, in reply, promised him their support; others informed him that they would reserve their decision until they had an opportunity of discussing the merits of the respective candidates, and others denied him their support altogether. After the Grand Jury had been sworn, it was intimated to Torrens, J., the Judge of Assize, by several of its most respectable members, * that gentlemen of considerable fortune and sta- [*96] tion in the county, who were in attendance in the Grand Jury box to be sworn on the Grand Jury, if called, and who were usually on former Graiid Juries, had been passed by because their opinions were adverse to the election of the High Sheriff's brother to the office of Inspector; and the learned Judge was referred to former grand panels as evidence of their almost uniform service on former Grand Juries, whenever they were in atten- dance. It was also represented to him that such of the Grand Jurors as were hostile to the i)retensions of the candidate in question, or who declined pledging them- selves, were called much lower down on the panel than their rank and fortune, and position on former Grand Juries, warranted; and that thus had the persons called in the commencement of the panel answered to their names, the others would have been left off the Jury altotTcther. The learned Judge was referred to a com- parison of this panel with former ones as to this fact, 16 ■ ■i,*.^ ■f |5 i'lci ?i <} m t 1 C' 1: i m m. > ii >s * 1 j I \ [1 I li 96 JEBB'S RESERVED CASES, [January 23 and also as to the fact that persons in immediate con- nexion and relationship with the High Sheriff and the candidate were placed much higher on the panel than usual, or their pretensions warranted; one of those per- sons so pointed out was another brother of the High Sheriff, whose name stood high in the Grand Jury list. Upon the vacancy having taken place, towards the conclusion of the Assizes, tlie Sheriff's brother and another person were proposed as candidates, and the former was elected by the Grand Jury by a majority of three ; the result of the election was announced to the learned Judge in open court. It being evident during the Assizes that great dis- [*97] satisfaction * prevailed amongst the leading gentlemen of the county as to the manner in which the Grand Jury had been formed, and that the Grand Jury had been modelled in consequence of the answers given during the canvass; the learned Judge did not consider himself bound to give his " consent and appro- bation" to the appointment of the elected candidate, considering it right that the opinion of another Grand Jury, not summoned under such circumstances as the present, should be taken upon the appointment. His lordship therefore refused to lat the presentment; re- serving for the decision of the Judges the question, whether the statute gives the Judge who presides in the criminal court, the power of refusing his consent 183!).] OFFICERS AT ADMIRALTY (COMMISSION. !)7 and approbation to the Grand Jury appointment, under such circumstances as above stated ; the board of super- intendance being instructed to appoint an inspector ad interim, until the decision of the Judges should be given. %-l m n All the Judges (except Smith, B., and W Clellapd, B.,) being present, unanimously decided that the Judge had a discretion to withhold his concurrence. IN the Matter of PRESENTMENTS for the Clerk of the Crown and Sheriffs upon an ADMIRALTY COMMISSION. A commission to the going Judge of Assize, for tlie trial of Admiralty ofTcnnes, under tiio 23 Ik, i\ Geo. III. clia|). 14, see. 4, is not a special commission witiiiu the meaning of the 4 Geo. IV. c. 43, sec. 3. (6 & 7 Wm. IV. e. 116, s. 113.) Previous to the Summer Assizes for the city of Cork in 1823, a commission issued, directed to 0^ Grady, C. B., * and Pennefather, B., (the then going [*98] Judges of Assize for the Munster Circuit), Sir Jonah Barrington, Judge of the Admiralty, and others of his Majesty's counsel, requiring them, or any two of them, to hear and determine all offences committed on the high seas, and to deliver the gaol of the City of Cork of all prisoners comiiiitted for such offences. This com- I ' i\ ill •*' It 11 ■V •■25 , > f. J ■' % i 1I f i¥ (1 i^ ; fi 1 ! •, ' ^ lii 1 ' ' Tl i: I'l M 08 JEDD'S RESERVED CASES. [January 23 mission required the Judges in the usual way to issue their precept, &c., and it was dated after tlie ordinary circuit commission. It was issued by virtue of the 23 & 24 Geo. III. cliap. 14, sec. 4, and was delivered to O^Gradij, C. B., and Pennrfather, B. Under this commission a precept was issued (separate and distinct from the general Assizes' precept), to the Sheriffs of the city of Cork; this precept was duly re- turned, a Grand Jury (which in point of fact consisted of the same persons as those returned for the Assizes) sworn, and a trial foi murder had ; the two Judges sit- ting together agreeably to the provisions of the act and the tenor of the commission. It was thus a separate and distinct commission from the general Assize commission. A t the close of the Assizes, the Clerk of .the Crown and the Sheriffs submitted to Pennefather, B., who pre- sided in the Crown Court of the city of Cork, that this was a special commission, and that under the provisions of the act 4 Geo. IV. chap. 43, sec. 3, (a) which enacted, that " in any county where a special commission or ad- "journed Assize shall be held for the trial of offenders, " the several Grand Juries shall at the Assizes next im- " [*99] mediately * ensuing, subject to the provisions of ** that act, make a further presentment for the Clerks of " the Crown, Sheriffs, and Judges' Crier, equal to one- Co) The 6 & 7 Win. IV. c. 116, s. 113, is the corresponding cnaetmcnt now in force. By it the uddilionul presentment ia not to exceed one-fourth of tlio salary. of of in 182f).] REX V. M'KEARNEY. 09 *' half of the salary of such officer," they were entitled to presentments e([Ual to half of their salaries under that act, and that the Grand Jury should be required to make such presentments. Presentments were accordingly made by the Grand Jury, upon an understanding that they should be respited until the next assizes, which was done, in order that the opinion of the Judges might be taken, whether under the foregoing circumstances these presentments ought to have been made, and should be fiated by the next going Judges of Assize. All the Judges (except Smith, B., and McClelland, B.,) being present, unanimously decided against the presentment. THE IIING V. JAMES M'KEARNEY. Tlic getting the head out tlirough a skylight is a gnflicicnt breaking out of a house to constitute buiglary. The prisoner was tried before McClelland, B., at the Spring Assizes at Omagh in 1829, on an indictment for a burglary in the house of Louis Davis. There were three counts in the indictment ; the first for breaking and entering the house by night with intent to steal, &c.; — the second for entering the house with intent to steal, &c., and breaking said house by night, and get- tinff out of the same: — the third for enterinjr said liouse ii I. ■i If >.•;*•» -ill ■IIR c !)9 JlinH'S RKSKRVni) CASES. [May aft with intent to steal, &c., and by iiiglit breaking out of said house. [*100] It appeared on the trial that on tlie 8th of January, IS'29, the prisoner was, about 11 o'clock at night, discovered in the cellar of the house hid under a heap of potatoes ; he fled from the cellar into a room in the house and locked himself in; this room had a shed roof and a skylight in the roof Dams, the owner of the house, heard the skylight breaking, and then ran round into his yard, when he saw the prisoner with his head out of the skylight endeavouring to escape, — he struck the prisoner a blow on the head, when he fell down into the room, where he was taken by a police constable im- mediately after, on his breaking open the door which the prisoner had locked. The Jury convicted the pri- soner, but the learned Baron entertaining some doubts whether there was a sufficient breaking out of the house to constitute the crime of burglary, reserved the fol- lowing question for the twelve Judges : Whether, the prisoner having only got his head out of the skylight, this was a sufficient breaking out of the house to com- plete the crime of burglary ? The Judges unanimously ruled that the conviction was right. Sec Rex v. BniJey, Uuss. &, Ry. 3-11, wiit-rc breaking the glass of an outer sbiit- tcr, and introducing the hand bctsvccn tlic sasli and an inner shutter, was field bur- To the same effect, Rex v. Davi%, id. 499, where the fore part of the i glnry. finger, I 1839.] TIPPERARY PRESENTMENT. 100 iit- nr- oiily, went itiHido of a piino brukcn by piiHliiiifr tlio fiiiircr nfrniniit it. Rut in Rex v, I'oril, 1 Moo, 1H3, tlirowiiijr u|) ii window ami iiilro(liii:irij,' an iiiMtriimL'rit lirtw<'i'il Miirli window iiiid an insidi.' Nlinttcr to forrtt open tlii! Nhnttcr, held not hnii^lary Uiili.'HN tlio liiind ur Horiie |i,irt of it iictnally cnturcd. It \h not ncccMNury that llicru glioiild l)(.' uctnai brcNiltinif of material: lillinjr up n Hap usually kept down by ilH own wciirlit, in cnoiiKli, Hex v. Rii»»Hl, I Moo. .')77: (Unt ncc; Rrx v. (' iliiii, Ruhh, At Ky. l.>7, (in uailicr cuhc, wlicru tlic twelve Jndjfi'H wito tMpiuiiy divided on this point,) AIho, pnsliin^ open ii window openinfr on liin^reH and fiistcned by wud^rcti, i'nuii);li, Rex v. Hull, Rush, &c. Uy, .'I.m. Or, pnllin|r down a KaNli kept in its pliico by pully wcii;lits, Rrx v. tlainrs, id. I.'il. I'ut tbt; doctrine of these eases will nut be extended, and it Keems that to enlarjre un openin)r already made, is not sneli a breaking; qh is neucHsary in a Imr^'lary, Rex v. Smith, 1 Moo, 178, Rex v, Rnliiiimiii, id, .'J'27, Sec also Roseoe's ('rim. Evid, 'Mi, Shurtiwoud'u cd, I'hil, IblOj also 2 UuNMuU on Crimes, '2, sumc cd., Phil. Iti-ll. IN the Matter of a PRESENTMENT to tlic Clerk [*101] of tlic Peace of the County TIPPERARY for Printing Election Notices. Held, tlmt the Grand Jury had a power of considcrinff what is a "necessary dis. liurKement" by the clerk of the peace, under the 10 (!eo. IV, c. 8, s, .'H, for printing election notices, &,c,; and that that ututulc waa not niundutory on thcni to present the sum actually disbursed. At the Summer Assizes for the county of Tipperary in 1829, the clerk of the peace required the grand jury to present the sum of £ 1049 18^. 8^/. to be levied off the county and paifl to him, as being the amount of sums he had actually disbursed for the expenses of printing the notices and advertisements directed by the statute w I US! 2 '35 V fi I;' i!-:l • I ' 101 jKnii's rii'.acRvcD cases. [\ovcinIicr 11 10 G. IV. c. 8; and lio made an aflldavit stating that he had made himself liahle for that sum, having employed the editors of three newspapers in the county to print and publish those notices and advertisements, and had undertaken the payment thereof; and he urged, that tiie above sum was to be considered a ** necessary disburse- ment'" under the 37th section of the statute. The grand jury objected to the amount, alleging that they were only bound to present all such sums as were necessarily disbursed, and that they considered that it was unnecessary to disburse so Inrge a sum for the pur- pose; and that if by the legal c 'uction of the words of the section, they had any povvt;i of considering what should be deemed a necessary disbursement, it was their opinion, after due investigation of the charges, that the sum of £ 500 was sufficient. The clerk of the peace insisted on the full amount, contending that the statute was mandatory on the grand jury to present it; and the grand jury having persevered in a contrary ophiion, Moore, J., (the Judge of Assize) [*102] directed *them to make a presentment in both ways, stating, that on obtaining the opinion of the Judges, he should fiat that one which came within the legal construction of the statute. Eleven Judges {Smith, B., being absent) decided unanimously against the claim of the clerk of the peace, I «:.'!». I WICKLOW INI'IUMAUY. lO'J and (liroclcd llmt tlio presentment lor .CiOO should be fiatod {(i). (ii) Tli(! n Si. 7 W. I, r. llfi, H. 1 l.'i, providcH, timt tlio jfrnnd jury niny prrnont "hiic'Ii hiiiiih an iiimj hr iii'ciHsiinj, to ilrlViiy llii! ixmciihi- iiI' jiiuvidiiig uixl prilitiii); " ri'si,'«try buukv uiid liutH," &,c, M.'(iiiia'U by tho ckulioii luw*. Iff '■'•J"1 IN tlio Matter of a PRESENTMENT for the County WICKI.OVV INFlllMAllY. A pri-scntincnt ciinnot bo mndo after tbc nssizcn, ntine pro tunr, wlicrn the (rrund jury Imd, by ovuriiiglit, oiniltud to tuku uny stupsi ruH|icctiii:1J ■-'^.5 ■ 1 as ■Jj 1* i \ '^ i;' _»«"<^'** 4 ♦ i i ■i „ -I vol JEBU'S RESE:IVED CASES. [November 18 (the other Judge of Assize), had gone on before, the counsel for the Crown, at half-past two, p. m., called on Bitshe, C. J., to bring on again the trial of Delamj, in whose case the iury had been discharged. Bushe, C. J., asked the prisoner's counsel if he was ready for his trial, and they stated that he was not, but that they considered him entitled to be discharged, inasmuch as the Court was not authorized to discharge the jury merely on the oath of one of the jurors, without the examination of a medical man as to the state of that juror's health; and moved that he should becischarged, which his Lordship refused to allow. At the time the jury were discharged, neither the prisoner, nor his counsel, or attorney, who were in Court, made any [*108] * objection; but they were not called on to say whether they consented. Under these circumstances, the learned Chief Justice reserved the question, whether the prisoner Delamj was entitled to be discharged. The twelve Judges were unanimously of opinion,, that the Judge had a discretion to discharge the jury under the circumstances above stated, and to remand the prisoner ; and that this discretion had been soundly exercised in the present case. Sec Rex V, Barrett, ante, 103 — the case next preceding, and note. 1830.1 REX r. NOONAN. 108 THE KING V. PHILIP NOONAN and Others. On a conviction for administcrinpf nn unlawful onth, the prisoner may be sentenced to hard luhoiir and imprisonment, hy virtue of (lie 51 G. 3, c. G3, s, 2. Qiiare, whctlicr to support an indictment imder tlie 50 U. 3, c. 102, s. 1, fur administer, ing nn unlawful oath, it must be proved that the country was in a state of disturbance ? At the Spring Assizes for the Co. of Galway, in 1830, Philip Noonan and Michael Noouan, -were, together with others, tried before Smith, B., on three indict- ments: — 1st, for a riot; 2dly, for appearing armed by night; and 3dly, for administering an unlawful oath. The latter indictment was as follows: — "The jurors "for our Lord the King upon their oath do say and " present, that Philip Noonan and Michael Noonan &c., " in the said county, labourers, being evil disposed per- " sons and disturbers of the peace of our said Lord the " King, and not regarding the laws and statutes of Ire- " land, nor they, nor any, or either of them, being duly " qualified by law to administer an oath, on the 16th " day of October in the 10th year of the reign of our " Sovereign Lord George IV., &c. with force and arms, " at Guriijmadden, in the County of Galwatj aforesaid, " wilfully, maliciously, contemptuously, unlawfully, and " feloniously, did administer, and cause to be adminis- '• tered, to one Thomas Eourke, a true and * faith- [*109] •*ful subject of our said Lord the King, a certain 18 ' *'■ 1 li'illj II f I' 11: :ti A i«l« u :hl IS I *;. !■ ii,-:t, -^ T^ 100 JEBB'S RESERVED CASES. [May 12 'I I K :il "oath then and there accordingly taken by the said " Thomas Bourke, importing and then and there in- " tended to hind him, the said Thomas Bourke, the per- " son then and there taking the same, not to prosecute "or give evidence against certain persons for certain " illegal acts (a) done by them against the peace of our " said Lord the King, his crown and dignity, and con- " trary to the form of the statute in that case made and "provided." The jury found all guilty on the first indictment: they fouria Philip Noonan and Michael Noonan guilty on the third; and on the second they acquitted all, on the ground of its not appearing to them, that at the time of the offence there were illegal confederacies or associations on foot, or that the neigh- bourhood was in a state of disturbance. The three indictments were founded upon one and the same transaction, which occurred o:.i the 16th of October, 1829. The evidence in support of the third indictment was, that the prosecutor did not know who administered the oath, but that Philip Noo?ia?i and Michael Noonan were present, and within hearing. The oath was, "never to prosecute." The learned Baron told the jury, that if they believed Philip and Michael Noonan to have been aiding and assisting, the indictment was supported. The jury strongly recom- mended the prisoners to mercy, on account of a good {a) Qu'i; I rof'-r,. : 'l; 1 P. W. 414. vour- 1832.] REX «. DOOLIN. \m able to the prisoner; besides, unless the prisoner desired that the jury should be discharged, he might coinjjlain of an injury, in having a new jury, with power to the crown to set aside. The case of Rex v. Squire {a) appeared to the majority to be an authority for not expunging the evidence, as Lawrence, J., had suffered the testimony of a witness to go to the jury, though he did not recover before the Judge's examination of him had concluded, in the course of which something favour- able to the prisoner might possibly have appeared. Five Judges (Doherty, C. J. C. Pleas, Smith, B., Johnson J., Pennefather, 13., and Torrens, J.,) were of opinion that the conviction was wrong. Torrens, J., thought that the Jury ought to have been discharged; Smith, B., thought the same, and that the evidence of the witness should not have been sub- mitted to the jury. The other three Judges were of opinion, that the evidence ought not to have been submitted to the jury. They insisted on the generality of the rule, that all witnesses should be subjected to cross-examination, and that if this cannot take place, the evidence is not complete, and cannot be submitted to the jury, if objected to; and the}' dwelt much on the possible injury * that might accrue to a prisoner, [*1'30] (a) 1 Russ. on Cr. 426, note. I ,0 !-- *l r .rfj' ..<*'■' ■ !| 130 JEBB'S RESERVED CASES. [May 9 if evidence should be used against him, w^hen there was no opportunity of cross-examining. \'f • All the Judges held, that the Judge should not have directed an acquittal, and none of them rested their opinion on the ground of there being sufficient evidence to convict, independently of the evidence in question. It was however considered, that there might be cases which would authorise this, but that they should be cases where there could be no doubt upon the evidence. The capital punishment was commuted for transpor- tation. Sec Rex V. Ball, Russ. &, Ry. 132. IN the Matter of PRESENTMENTS for DISPENSARIES in the QUEEN'S CO. Held, that the grand jury had a discretionary power under the 58 Geo. 3, c. 47, to present a less sum than the amount of private subscriptions, for a dispensary. The folio winfT case was reserved by Smith, B., from the Spring Circuit in 1832: "Several applications for Dispensary presentments 1832.] DISPENSARY PRESENTMENTS. 130 ^, c. 47, to tcnsary. lom the Itments " under the 58 Geo. III. c. 47, having been made to the " Grand Jury of the Queeii's County, they communi- ** cated to me their desire, on the one hand, to present "something, but on the other hand (considering the " burthens which the County had to bear) not to grant "a sum equal to the amount of the subscriptions, but in "each case to present two thirds of such amount; and "they enquired of me, if this could be done. After "conferring with my Lord Chief * Justice, I [*131] " stated to them that a majority of the Twelve Judges " had determined that Grand Juries had a right to de- "cline pres?nting any thing if they thought fit, but " that the question, whether, if they presented any sum, " they were bound to present one equal in amount to " that of the subscriptions, I did not consider to be so " distinctly and definitively settled, as that it might not " be expedient to submit this point again to the Judges " for their opinion. "Accordingly, they have endorsed the two sums on "each presentment, viz. a sum equal to that of the " subscriptions, and a sum falling short by one-third in "each case of its amount; it being understood that I " shall fiat for the smaller sum, if your lordships think " that this may be done — otherwise for the larger." The Twelve Judges being present, it was resolves! by SEVEN of them, (Moore, J., Jebb, J., Burton, J., J'en- NEFATHER, B., VaNDELEUR, J., ToRRENS, J., and F08TER, tt00 ' a 3 .,JI»- 1 1 ■f,X' \\ i M' 131 JEBB'S RESERVED CASES. [May 9 B.,) that the question whether it was discretionary in the Grand Jury to present any sum they might think proper, not exceeding the amount of the voluntary sub- scriptions, should not be reconsidered; it being their opinion that the question was settled by the Judges in [*132] 1827 (a), and most of the Judges * having since acted upon that supposition. The other five Judges thought that the question should be reconsidered. ff 1 (a) There had been for soma t'mc conflicting' opiniona upon this point, which was ut length settled by tlie decisiin in 1827, referred to in the text. That wns a decision of u majority of the Judges (upon a case reserved by Vandeleur, J., from tiie Summer Assizes at Mayo, in 18'.2G) to tlie effect that the Orund Jury had a discretionary power as to tiie sum they sliould present for a dispensary, nnd tliut the statute 58 Geo. III. c. 47, s. 5, was not imperative on them to present a sum equal to the amount of the sui)seriptions, but allowed them cither to decline mak- ing any presentment at all, or to make one for a less sum than the amount of the Bubscriptions, supposing all the requisites prescribed by the Act I ^ have been complied with. This dccisinn (which was the result of a long discussion, at two Bcvcriil meetings), overruled a former ease decided by eleven Judges ( Vandeleur, J., disaenticute) in Miehaehiiiis T. 1823, upon a question reserved by Moore, J., with respect to the Dispensary of Custlewellan, Co. Down ; upon which occasion the statute was held to be imperative. See the case of Medical Charities, Co. Kerry, (post), where the same question wns raised upon s. 81 of (i and 7 Win. IV. c. llfi, which now regulates Dispensary presentments. That enactment providi'g, that it shall be lawful for the Grund Jury " and tliey are hereby required" to present an equal sum, &,c. The words " they are hereby required" arc not in 58 Geo. III. c. 47. 181::.] REX ti. MAGUIRE. 133 THE KING V. THOMAS MAGUIRE. The 27 G. III. c. la, p. 10, so fnr ns it wlutrs to tlic Inking of arms, without tho consent of tlie owner, is repciilcd by the 1 ■iS rr. :::3» ^ ■■'•' i-li; I IMAGE EVALUATION TEST TARGET (MT-3) // >'*^ 1.0 I.I 1.25 •» Hi "■ £ US, 12.0 6" ^J >' V Fhotographic ScMices Corporatioii 33 WST MAM iTRHT wntm,N.Y. i4fio ^4. t h V ! 134 JEBB'S RESERVED CASES. [May 2 m i " ing, and being thereof lawfully convicted, shall be "liable to be transported for the term of his natural life, " or be imprisoned with or without hard labour for any "term not exceeding three years; and, if a male, to be " once, twice, or thrice publicly or privately whipped, " if the court shall think fit, in addition to such im- " prisonment." This Act, like the 27 G. III. extends its provisions to the taking of arms, whether the [*135] * same be done by day or by night. The ques- tion therefore was, whether the Act of the 27 G. III. as far as relates to the taking of arms, was not virtually repealed by the Act of the I & 2 Wm. IV. c. 44 ; that oflfence, which by the 27 Geo. III. was made a felony, being made z misdemeanor by the 1 & 2 Wm. IV. c. 44. Eleven Judges {Smith, B., being absent), unani- mously held that as far as the taking of arms was con- cerned, the 27 G. III. c. 15, s. 10, was repealed by the 1 &, 2 W. IV. c. 44, s. 2; and that therefore the convic- tion was bad. (a) (a) The conviction could not be upheld under the 1 & 2 Wm. IV. because the offence was laid feloniously. << I qua "the " force "did 1833.] REX t>. ADAMS. ISA THE KING V. FRANCIS ADAMS and THOMAS LANGTON. -4 * I-' 1 the An indictment under the 27 G. III. c. 15, s. G, for administering' an unlawful oath, is supported by evidence that tlie prisoner compelled the prosecutor to swear " that lie would give up his land to A. B." Tiic prisoner peremptorily chal- leiigcd one of the Jury on his coming to the book; the court refused to receive the challenge, and the juryman was sworn. When judgment was about to be pronounced, the prisoner's counsel tendered a plea, praying a reversal of the '' judgment, because of the challenge not having been allowed, which pica the court refused to receive. Held, that the court was right in refusing to receive it. The prisoners were tried before Bushe, C. J., and Smith, B., at the special commission for the Qitceri's Couniy, in 1832, upon an indictment for administering an unlaw- ful oath, founded on the 27 G. III. c. 15, s. 6, and which was as follows: "The Jurors, &c. upon their oath do " say and present, that Francis Adams, late of, &c., and " Thomas * Langton,^ late of, &c., on, &lc., at, [*136] " &c., with force and arms, unlawfully and feloniously " did tender to one John Large a certain unlawful oath " upon a book, to the import that he the said John Large " would give up certain land to the widow Fennell, they " the said Francis Adams and Thomas Langton not being " qualified by law to administer an oath or oaths; against " the peace and statute." Second count : " That the said " Francis Adams and Thomas Langton, on &c., with " force and arms, at, &c., unlawfully and feloniously " did cause to be tendered to one John Large a certain ■ii :^ S3* W^ !!•««•*' .«£' ■«■• ' ill I'll U AM P'' i ' 1 i f- i i ■I'i-i 1; ]V V 136 JEBB'8 RESERVED CASES. [June 13 %■ i " solemn engagement upon a book, importing that he, " the said John Large, had not any arms, they the said " Francis Adams and Thomas Langton not being qiiali- '' fied by law to administer an oath or oaths; against the "peace and statute." Third count: "That the said '* Francis Adams and Thomas Langton, on, &c., with "force and arms, at &c., unlawfully and feloniously " did by threats and force cause and induce to be taken " by one John Large a certain unlawful oath upon a " book, importing that he the said John Large would " give up certain land, they the said Francis Adams " and Thomas Langton not being qualified by law to "administer an oath or oaths; against the peace and "statute." Fourth count: "That the said Francis "Adams and Thomas Langton, on &c., with force " and arms, at &c., unlawfully and feloniously did by " force and undue means cause and induce to be taken "by one John Large a solemn engagement upon a " book, importing that he the said Johii Large would " give up certain land, they the said Francis Adams and " Thomas Langton not being qualified by law to admi- " nister an oath or oaths; against the peace and statute." Fifth count: "That the said Francis Adams and Tho- " mas Langton, on, &c., with force and arm.s, at &c., " [*137] unlawfully and feloniously did by force *and " undue means cause and induce to be taken by one " John Large a solemn engagement upon a book, import- " ing that the said John Large had not any arms; they " the said Francis Adams and Thomas Langton not 1832.] REX V. ADAMS. 137 ** being qualified by law to administer an oath or oaths; " against the peace and statute." The evidence in sup- port of the charge was, that the prisoners and other arrned men broke into the prosecutor's house, made him go down on his knees, and threw a book to him, upon which they compelled him by threats of destruc- tion to swear " that he would give up his land to the " widow FetmelV Counsel for the prisoners insisted that the oath was not unlawful in the sense of the stat- ute, in which, with reference to a provision in th^ 15 and 16 G. III. c. 21, s. 21, an unlawful oath does not merely mean an oath unlawfully administered, but an oath to do an unlawful thing. The court overruled the objection, and the prisoners were convicted. The prisoner Adams had, when the jury were about to be sworn, peremptorily challenged a juror, William Fishbourne, on his coming to the book; and the Attorney General objecting to the challenge being received (a), the Court refused to receive it, and the juror was sworn. When judgment was about to be pronounced (b), the prisoner's counsel tendered the following plea: "And "the said Francis Adams in his own proper person, " having heard the judgment of the court, saith, that " the same ought to be reversed, because he saith that " he the said Francis Adams did peremptorily challenge (a) Because the offence charged was iint a capital felony. See Rex v. Phelan, and Rex v. Whelan, Hayes' Cr. & P. 586 (Edn. 18.17). (6) The plea, it will be observed, prays a reversal of the judgment. !■ J.' ■M m I ' ■■ ! i ■f>y\- w 't> i -. 137 JEBB'S RESERVED CASES. [June 13 " the said William Fishhourne, one of the Jurors impan- " [*138] nelled and returned to recognize * upon their " oaths whether he the said Francis Adams was guilty " of the felonies aforesaid or not guilty, as he the said " William Fishhourne came to the book and before he "was sworn. And the said Francis Adams further " saith, that the Right Honorable Francis Blackhurne, " Attorney General of our said lord the King, who was " present prosecuting for our said lord the King, did not, " nor did any other person on behalf of our said sove- " reign lord the King, demur to said challenge nor plead "thereto nor join issue thereon, but on the contrary "declined so to do; nor did said Francis Adams with- " draw his said challenge, but insisted on the same; yet " •«vas said William Fishhourne sworn to speak the truth " of and concerning the premises, and was one of the " twelve who upon their oaths did say, that he the said " Francis Adams was guilty of the felonies aforesaid, " and this he the said Francis Adams is ready to verify; "wherefore he prays that the said judgment be reversed." Blackhurne, Attorney General, objected to the plea being received ; and after some controversy it was agreed that if the Twelve Judges, to whom the Court stated their intention to submit the question, should think that the plea ought to be received, the Attorney General should demur to it, nunc pro tunc, so that the judgment of the court upon the demurrer might be put on the record. The opinion of the Judges was therefore requested, 1832.] BRIDGE CONTRACTORS, MEATII. 138 1st, whether the indictment was supported by the evi- dence? and 2dly, whether the plea ojiight to have been received? Ten Judges {G'Gradij, C. B., and Ton-ens, J., being absent) were unanimously of opinion that it was right to * refuse the plea tendered; and that the in- [*139] dictment was supported by the evidence [a). (a) Sec a report of tlie trial in tiiis case in Mongan'a Maryborough Special Cum- mission Trials, 241. IN the Matter of PRESENTMENTS for BRIDGE CON- TRACTORS and OVERSEERS in the Cos. of MEATH and KILDARE. tted, A presentment made by a grand jury at the assizes, upon the memorial of a con- traetor for building a bridge, to cover the additional expenses iiieurred by the contractor, 'n consequence of a change in the site, is illegal. A presentment of the amount of an attorney's bill of costs, furnished to the county overseers, for preparing a contract, &,c., for building a bridge, is illegal. At the Spring Assizes at Trim, in 1832, on the memo- rial and affidavit of James Bell and James Pettigrew, the grand jury of the County of Meath presented a sum of £ 145, to cover an increased expense incurred by the memorialists, by reason of a change in the site of the bridge of Clonard. „*"•' nil I: ' S. i^r u "i- I 139 JEBB'S RESERVED CASES, [Juno 13 The memorial stated, that the memorialists had con- tracted to build a bridge on the river Bot/ne, at Clonard, on a site approved of by the two county overseers ; but that after they had commenced operations by quarrying and damming, they were requested to attend a meeting of the trustees of the MuIIingar ivirn])\ke road, at which they were directed to point out the line of road approved of by the Counties of Meath and Kildare, to lead over the bridge in question. They pointed it out, and the trustees disapproved of it; and after some discussion, and objections urged by the memorialists to any change of site, as involving additional expense, the memorialists were prevailed upon to adopt the site proposed by the [*140] trustees. * The overseers were aware of the change, which was acknowledged to be a great improve- ment. The affidavit stated the amount of the additional expense. The grand jury, in calling the attention of Smith, B., (the Judge of Assize) to this presentment, declared their opinion, that the claim was a fair and meritorious one, and that their wish was to present for it, if such a pre- sentment was warranted by law. The learned Baron accordingly respited the presentment, until the assizes of Naas, where it was expected that a similar present- ment would come forward, stating his intention, that he would there, as the case might be, fiat, or nil, or respite both; and in the last event reserve a question for the Judges, on the legality of those presentments. &c. This The twelve Judges unanimously decided against all the presentments, viz. those for the additional sums in the respective counties, and that for the bill of costs (a). IW! ■ 1 1832.] BRIDGE CONTRACTORS, MEATH. 140 At the assizes of Naas the grand jury of the County of Kildare, on a similar memorial and affidavit, in like manner presented a sum of £145. The Kildare pre- sentment was indorsed as follows: — "We present that " the sum of £ 145 be paid to James Pettigrew and James " Bell, to remunerate them for extra work done by thtm "in building the bridge of Clonard, by reason of an " unavoidable change in the original site, provided such " presentment be legal. "D. O'Reilly, Foreman." The learned Baron respited both presentments, in order to submit the question of their legality to the twelve Judges. The Meath grand jury also presented a sura of £23 125. 3d. the amount of a bill of costs furnished to the overseers by an attorney, for preparing the contract for building, and the bond or recognizance, &c., * between the overseers and the contractors. [*141] This presentment was also respited. ..■*•: 1 the (a) The ground of tliis decision, as to the bill of costs, probably was, that the works in question did not in their nature warrant the overseers in cntcrinjr into contracts, but were to be executed in the usual way by the overseers, under the 46 G. 3, c. 96, and that tiierefore all expenses incurred fjr contracts were illegal: and as to the additional sums, that in compliance with the 59 G. 3, c. 84, the appli- cations should have been submitted to special sessions. The law upon the subject of presentments, &c., for roads and bridges, is now considerably altered. The offices of overseers, under the 46 G. 3, c. 96, oiid super- . 23 Pi ■ 141 JEDB'S RESERVED CASES. [May 1 r: vi»ori, undur 49 O, 3, c. 84, am 8ti|)criic(lcil and abolished by tho appointment of county surveyors under the late (Jrand Jury Acts, and by the 4 «fe 5 VV. I, c. !H, 8. 3j and tho proceedings are now principiilly rcRuhited by tlic 6 &. 7 W.4, c, 116, »». 13, 30, 57, 133, &.C.; 4 & 5 W. 4, c. 61 ; and Ihu 7 W. 4, c. 3, aa. 10, 11, 16, &.u. IN the Matter of PRESENTMENTS by the Grand Jury of the County of ARMAGH. Tho magistrates at special sessions under .tho 59 G. 3, c. 84, not having suflieicnt time til consider all the presentments (one day only having been op|iointcd by the grand jury for the purpose), selected a certain number and left tho rest un- considered : Held, that such selection did not render the proceedings illegal : Held also, that under that Act it is not necessary that all the thrco magistrates (not being agents) whose presence was rendered necessary at the sessions, should bo resident in the county. A SMALL number of magistrates assembled at Nervry, for the purpose of holding a special sessions for the ex- amination of presentments relating to the barony of Uj^er Orier, pursuant to the 59 Geo. III. c. 84. One day only was appointed by the grand jury for this pur- pose ; and after the magistrates had gone through the accounting affidavits, and the presentments relating to the county at large on that barony, they found it would [*142] not be in their * power to go through the entire of the remaining applications, and in consequence they selected for consideration those presentments, which they thought most requisite and urgent, or felt most in- 1833.1 CO. ARMAGH PRESENTMENTS. 149 ex- of lOne |p\ir- the gto iould Intire they hich it in- terest in, or on which they were best informed ; and left the remainder, in which absent magistrates were inte- rested (being about one-half of the entire) unconsidered. The grand jury having some doubts as to the legality of such a proceeding, submitted those doubts to Smith, B., (the Judge of Assize), requesting his opinion, whe- ther the applications thus selected could be considered as legally coming before the grand jury, or whether the entire proceedings at the sessions should be considered as illegal. It was felt that those applications which had not been considered at sessions could not be taken into consideration by the grand jury; and the question was, whether the selection which had taken place gave such a character of illegality to the whole proceeding, as to exclude from the consideration of the grand jury those selected cases which the magistrates had considered ; or whether, though the course taken by the magistrates might have been censurable, the applications which they had considered could properly be brought before the grand jury. The grand jury stated, that they did not think any imputation of undue motives attached upon the magistrates, but they thought the precedent might be attended with danger; and, at all events, that the construction of the statute ought to be settled. Upon these points the learned Baron respited the pre- sentments relating immediately to the barony roads, until the opinion of the Judges could be had; but the barony presentments, so *far as they related [*143] ,j» I \ ¥> iir' '^ ■ ill ■ !■ ;P ^1 ii fW id Ii' H 143 JEDD'S RESERVED CASES. [May 1 ! ,' to the county at large, and also the accounting afRdavits for the barony in question, wore fiated. Another point was reserved in this case; viz. whether or not it was necessary that all the three magistrates, whose presence was recjuired by s. 9 of the 59 Geo. III. c. 84, should be resident in the county. In the present case two out of three who attended at the Balhjhot Ses- sions were so resident. The question turned chiefly upon 8. 4 of the above-mentioned Act, some of the grand jurors holding that the test of residence prescribed by the oath given in that section, applied only to agents; and others being of opinion that it applied to all the qualifications. Nine Judges out of eleven who met (Doherty, C. J. C. Pleas, being absent), were of opinion, that the pre- sentments should be fiated. Bushe, C. J., and Torrens, J., thought that they should be mUed{a). t'lf (a) The first question in this case may perhaps be applicable to the 6 & 7 W. 4, c. 116, which now regulates the presentment sessions; by s. 17 of which tlio jus- tices and cess-payers arc to consider all such applications as may be laid before them, &c. As to the second question, it would seem that now under s. 9 of 6 & 7 W. 4, c. 116, the attendance of one justice would be sufficient. 1833. nilRNINO PETITION, ANTRIM. 144» r.4, * IN tho Mnftcr of a PRESENTMENT for Compensation for a MALICIOUS BURNING, in tho County of AN- TRIM. To lupport a burning; petition under tho 1!) ic 20 G, 3, c. 37, a written notice upon the liigli.consitabic, according to tho provJMlunH of the 1) VV. 3, c, U, in ncccHHury, and such notice must bo served within six days afler tho injury. At the Spring Assizes for the County of Antrim in 1833, a petition was preferred to Bitsfie, C. J., for a presentment for a loss sustained by a malicious burning. Upon the examination of witnesses, the injury appeared to have been committed in consequence of private malice, and not by insurgents. The petition therefore not being founded upon the Whiteboy Act, the only question was, whether sufficient notice was given under the Acts of 7 W. III. c. 21, and 9 W. III. c. 9, then expired, but referred to by the 19 and 20 G. III. c. 37. The party gave written notice to the church-wardens, who were inhabitants near the place where the injury wa? committed, within forty-eight hours after the injury was committed, and also swore examinations within four days after such notice ; so that if the acts required to be done by the 7 W. III. were necessary requisites, they had been performed in this case. But the notice given to the high-constable by the petitioner was not in writing, but parol; and if that notice were necessary (as m if It ill ■•1, ' PHI ■•■■ I J 144 JEBB'S RESERVED CASES. [May 1 was insisted by those who opposed the petition), it was not sufficient according to the 9 W. III. c. 9. Counsel for the petitioner, however, argued, that by the 19 & 20 G. III. c. 37, notice to the high-constable was impliedly dispensed with. [*145] Eleven Judges {Dohertij, C. J. C. Pleas, being absent) unanimously decided, that the present- ment should be nilled, on the ground that notice to the high-constable was necessary, and that such notice should be a written one, and left with him within six days after the injury done {a). (a) This Act (19 & 20 G. 3, c. 37), is still in force in Uie County of Dublin.— Vide ante, 72, note. IN the Matter of PRESENTMENTS relating to the Barony of STRABANE. I' 11 il Held, that the grand jury had no power at the assizes to make presentments upon applications which had not been laid before the magistrates at the special ses- sions next before those assizes, under the 59 G. 3, c. 84. At the Spring Assizes for the County of Tyrone in 1833, before Moore, J., an objection was taken by a deputation from the town of Strabane, to all the pre- sentments in the printed schedule intended to be made : i': i 1833.] CO. TYRONE PRESENTMENT. 145 of on the barony of Strabane, on the ground of the appli- cations for such presentment'' not having been made before the Justices or Magistrates assembled at the special sessions held next previous to the assizes, as appointed by presentment of the grand jury at the preceding Summer Assizes, agreeably to the provisions of the statute 59 Geo. III. c. 84, ss. 1, 2, and 3; and that consequently the grand jury had no legal power to take such applications into consideration, or make any presentment founded thereon. This objection vv^as met by a statement, that all of the applications then sought to be presented on that barony had been laid before the grand jury at the last Summer Assizes (having been previously to such Summer As- sizes * considered by the magistrates assembled [*146] at special sessions), but that the applications had been held over and suspended by the grand jury w^ith the sanction of the Judge (as they conceived), and that therefore the grand jury had still the legal power to consider them. Ill :;;J< •■is I ■t 1 ili in T a ^re- ^ade In answer to this it was urged, that the provisions of the Act were precise and specific; and that even sup- posing the judge had given such sanction (which the deputation very much doubted) it must have been with the proviso, that the applications should be again sub- mitted to the Road Sessions. ■ 1 1' :f; ! ■> iii' 'M: m nr^ w I 14-1 JEBB'S RESERVED CASES. [May 1 The learned Judge, therefore, reserved for the con- sideration of the Judges the question vi^hether the grand jury at the Spring Assizes had power to consider those applications, and make presentments thereon; the same not having been made befoie the Justices or Magistrates assembled at the special sessions held next previous to the Spring Assizes, as appointed by presentment of the grand jury at the preceding Summer Assizes. All the Judges (except Doherty, C. J. C. Pleasj being present, veere unanimously of opinion, that the presentments should be nilled («). ■'U (a) See ss. 5 and 38 of the 6 & 7 W. 4, c. 11 6, the Act now in force on the sub- ject in the text. By s. 5, tlic grand jury arc required to fix a time for proacntrnent sessions, previous to the next assizes. Sec. 38 enacts, that no presentment is to bo made unless an application lias been approved at sessions, as therein-beforc provided. [*147] IN the Matter of PRESENTMENTS on the Barony of DUNGANNON, County of TYRONE. Applications for presentments cannot be legally made ader the precise day appoint* ed by tlic Grand Jury for holding the sessions, where there has been no meeting on, or adjournment from, that day. An objection was made at the Spring Assizes for the county of Tyrone, in 1833, before Moore, J., to all the *Unc expedieJ 1833.] CO. TYRONE PRESENTMENTS. 147 presentments sought to be made on the barony of Dim- ga)ino)i, and also to the proportion for the county at large, presented on that barony, on the ground that the road sessions appointed by the Grand Jury at the Sum- mer Assizes, agreeably to tho provisions of the Statute 59 G. III. c. 88, were not iield on the day appointed at the place fixed for taking the applications for such presentments into consideration. The Grand Jury had fixed three days for each sessions. ;)point- Iccting In answer to this objection, it was stated that although the road sessions were not held at the place appointed, on the ^ist day appointed, yet they were held on the next day after the first so appointed, and at the place appointed; and that then the applications had been considered and disposed of. But in support of the objection, it was insisted that the road sessions must be held and commence on the very day appointed, and if necessary, adjourned ; that in this case there was no meeting whatever on the day appointed, and of consequence no adjournment could take place; and that supposing a person to commit per- jury at the sessions so held upon the next day as above- mentioned, he could not be legally convicted of perjury, or liable to punishment for such offence. . f : '■■•;?»"■■ ,.'«'"' the lithe * Under these circumstances it was considered [*148] expedient to respite those presentments until the opinion 24 m WM 148 JEBB'S RESERVED CASES. [Mayl of the Judges should be had, whether they could be legally made upon applications at sessions not holden on the day appointed for taking the same into consider- ation. Eleven Judges {Doherty, C. J. C. Pleas, being absent,) were unanimously of opinion that the present- ments should be nilled (a). (a) Tliis decision will probably apply equally to the 6 & 7 W. 4, c. 116, s. 5. '■t •' ^ in I 1 i THE KING t;. JOHN M'BENNET and JAMES KER- NIGAN. The demand of a gun from the owner's mother in the house of the owner, where his mother lived, is suflicient to support an indictment for demanding property with intent to steal ; although the gun was not In the house, or in the mother's possession, at the time of the demand. The prisoners were tried before Bushe, C. J., at the Spring Assizes at Monaghan, in 1833, upon an indict- ment which charged that they unlawfully and felo- niously did, with menaces, and by force, demand one gun, the property of one Margaret Miller, from, her, with intent to steal the same, against the peace and statute. There was a second count, in all respects the same, 1833.] REX ». M'BENNET. 148 except that it stated the gun to be the property of Thomas Miller, The first witness was Margaret Miller^ who swore, that on the 18th of February, at night, three men came to the house of her son Thomas Miller, in which she lived as his house-keeper, he being an unmarried man, and with threats demanded a gun from her, to which she answered there was no gun there, and they insisted that there was; that they went away, and in a short time returned and again * demanded the gun. [*149] She further swore that her son, who was not at home that night, had a gun, but that shortly before he had taken it out of the house and concealed it, for fear of people taking it. She said that the prisoners were two of the party that came into the house, and that one Walters was the third, but could not say which de- manded the gun. m ■^',! the lict- Ifelo- one Iwith Ltute. iame, A policeman was the next witness, who swore that he and his party had information of this attack being intended, and that they concealed themselves, and saw the party come to the house and push in the door, and heard them demand the gun, and saw one of them come out; heard him tell another whom they had left as a watch, that there was no gun there, and he then pro- posed that they should go to another house ; upon v/hich another came out and said, "damn you, Jones, come in " again, and we'll either kill her or have the gun." That w Tr i m f' m f '. "4 r^i I I 149 JEBB'S RESERVED CASES. [May 8 they then went in, and the police attempted to seize them, and after a violent resistance, succeeded in arrest- ing the prisoners and Walters, who was in custody, but was not put upon his trial. The learned Chief Justice left the case to the Jury, who found the prisoners guilty ; but he reserved for the consideration of the Judges the question whether this demand of a gun, which was not in the house, from a person not the owner, and who had not then the posses- sion of it, supported the indictment under the Statute 9 G. IV. c. 55, s. 6 (a). Eleven Judges {Dolierty, C. J. C. Pleas, being absent) unanimously held that the conviction was right. (a) Repealed by 1 Vict. c. 87; but s. 7 of the latter contains similar provisions, as far as this case is concerned. [*150] THE KING V. CHARLES CONNOR. An indictment for receiving stolen pigs in Londonderry, is supported by evidence that the pigs were first brought to the prisoner in Donegal, and afterwards sold by him, slaughtered, in Londonderry. Charles Connor was indicted and tried before Johnson, J., at the Spring Assizes for Londonderry, in 1833, for ^MUQII; '*; .^ (dcnce Us sold ison, Lfor 1833.] REX ». CONNOR. 150 feloniously receiving, at Londonderry, two pigs, know- ing them to have been stolen, the goods of Samuel Ferguson. Samuel Ferguson proved that he lived in the county of Donegal, and that on the morning of the 24th of February, two pigs of his had been stolen, and that in two days after, ho saw the same pigs slaughtered on the premises of James Hyde, in the city of London- derry. James Hyde proved that he bought the pigs in question from the prisoner, in Londonderry, on the 24th of February ; they had been killed when the prisoner brought them to him. They were afterwards identified by Samuel Ferguson. Edward Dogherty proved that he lived in the county of Donegal; that he had killed two pigs on the 24th, at the desire of the prisoner, who had brought them to him at his house, and that the prisoner said he had bought them. It appeared by evidence on the part of the prisoner, that on the day in question, three men brought two pigs to the house of the prisoner, who lived in the county of Donegal, and asked him to get them killed for them. These n:.en had left the country at the time of the trial, and were not men of good character. — The prisoner was found guilty. After the verdict had been given in, it was objected that the indictment was for receiving pigs in the county of Londonderry, knowing them to have been stolen. That the word "pigs," in an indictment, must be taken I '.4 ..rf*" a * m 1iP ill Ml m p i w , - Ji ■I : ! ^■;J •151 JEBD'S RESERVED CASES. [Mays I to mean * "living pigs;" that after pigs are killed, they cease to be pigs, and are pork; and that it did not appear that these pigs had been ever alive in the county of Londonderry ; and that when the prisoner received the pigs, it was in the county Donegal, and that the indict- ment should have laid the offence in that county, and. that the prisoner should have been tried in that county. The learned Judge respited sentence, and reserved for the consideration of the Judges the following questions : — First, did the evidence support the indictment? and secondly, if it did not, as the prisoner had been con- victed, what course should be taken to discharge him from such conviction, and to make him amenable to justice? The learned Judge, in reserving these ques- tions, referred to the cases of Rex v. Edrvards, Russ. & Ry. 497, and Rex v. PucJcering, 1 Mood. C. C. 242. Eleven Judges {Smith, B., being absent,) were unani- mously of opinion that the conviction was right. Th] Ass. taini dene that 6th c " afor " sen "othe "jure "dis| "fullj "in til "Kin^ " tilitj "and " cour " obedl " armsl ''Loni " solici i='l, 1 1833.] REX V. PETTIT. 151 THE KING V. MICHAEL PETTIT. life Indictment for inciting persons not to enter into the employment of R. S. Tlie evidence hIiowcU that tlicso pcrsonH liuil entered into tlic eniplnyinent of, nnd wori3 and advised them to go home. On cross-examination thoy said, they were in Mr. Sproulcs [)ay that day; they were to have l.v. 'M. per day for every day, inclu- ding that day, and a day for their return home; and when at work, to have potatoes, and milk, and beds in addition. Tiiey said it was Mr. Hiirleij who proposed to tiiem to go to work in Westmeath, and told them the terms of payment, to which they agreed. They set out, and slept the night of the 11th of Jult/ at Wattle Bridge, and considered themselves in Mr. Sproule's ser- vice, and at his expense from that day out. They said when they went out of the inn, there were thirty persons or better in the street, who said nothing to them. The people did not hear the traverser's words, which were uttered in the room of the inn, no one being present but their party and the traverser; but seeing the people in the street they were in dread, and asked the sergeant of police to put them out of the town, and they were accordingly escorted about a mile. They went on and worked for Mr Sproule, and after a time went home, and returned again to his work ; they did not see the traverser in the street after he left the inn. The ser- geant of police deposed, that the traverser lived opposite the inn, and that he met him coming out of the inn. Mr. Willington, chief constable of police, deposed, that he saw the party of Fermanagh men going up the street, * and thinking they were recruits for the police, [*154] sent the sergeant after them, and on his return ordered . the police out. 25 ,,» tf ; j 1 ^ 1 1 [' ■ \ .}. ■'!■ * 1 1 ! 1 1 m ,-'« ri (g'C ■!i! ■6 r •%\ : u 'ill ,j«2: 1 iisy ' i ' 'ri' ,.^' '1 _i\ ' ,."<"' 1 now' ! ;: /IJi' i ':-;^'. ' . i^' •yj- c * '1- 1 i I'TS*"" ' ■< ''■'■•"'. 1 :':.■':::■ . ' f ''i^ • 1 '■}■ 1 m ll f:,l, !! I Ifi4 JEBB'S RESERVED CASES. [Miohaelmat The traverser's counsel insisted, that the matter charged by the fifth and sixth counts did not amount to an oflfenoe at common law, but could at the utmost be only the foundation of a civil action; and that even supposing it to amount to an offence at common law, the evidence did not support the charge; the allegation being that the persons in question were about to be employed and to enter into the service of Mr. Sprmile, whereas it was contended that the evidence proved that at the time the words were spoken they were actually engaged, and had entered into his employment, and that there was nothing in these counts, or any other in the indictment, which charged the traverser with soliciting, inciting, advising, or endeavouring to procure these persons to leave their employment, or discontinue working for Mr. Sproule. <( I The learned Judge reserved both points for the con- sideration of the Judges: first, whether the matter, alleged in the fifth and sixth counts amounted to an offence at common law ? And, secondly, supposing a criminal offence to be legally charged in these counts, whether the evidence was sufficient to sustain such charge ? Eight Judges {Johnson, J., Pennefather, B., Torrens, J., and Foster, B., being absent) were unanimously of opinion, that the indictment was bad, and that the con- viction was wrong. ■'■> ■ * M . 7< 1831.] ANONYMOUS. Hi" * ANONYMOUS. An indictment ii maintainable on tlie firfit itection of tho Party Procoiiioni Act, (3 &, 3 W. 4, 0. 118.) taliun by itkulf. At the Summer Assizes for the County of Armagh in 1833, fourteen persons were indicted, and tried before Moore, J., upon an indictment founded upon the first section of the statute 2 &, 3 W. IV. c. 118 (a), charging, " That they, with others, to the number of 100, on the "12th of July, (4 W. IV.), at Lurgan, did meet and " parade together, and join in procession in a body, for '* the purpose of celebrating and commemorating a cer- ** tain anniversary and political event, relating to, and " connected with, certain religious distinctions and dif- " ferences between certain classes of his Majesty's sub- ejects; that is to say, the anniversary of the battle of "Aughrim, and the political event commonly called the " Battle of Aughrim, and that they did then and there " bear, wear, and have amongst them, certain banners, " emblems, flags, and symbols, the display whereof was " then and there calculated, and did then and there tend " to provoke animosity between his Majesty's subjects "of different religious persuasions; that is to say, his " Majesty's subjects of the Protestant religious persua- .♦w" ' ■ ,11 J' '■ ■ '.**' :i3" I ' 'J :3 " '' m (a) This Act, which expired in 1838, has been continued by the 1 & 2 Vic. c. 34, for five years, from July 4, 1838, and from thenceforth to tlie end of tlio next 8ea> flion of parliament. li'fli V'' 155 JEBB'S RESERVED CASES. [January 15 Mi r ' " sion, and his Majesty's subjects of the Roman Catholic " religious persuasion, against the peace and statute." There was a second count, omitting the word "reli- gious;" a third count, the same as the first, only stating the anniversary to be the Battle of the Boy tie; and a fourth count the same as the third, only omitting the word '* religious." When the evidence for the prosecu- tion was closed, the counsel for the traversers called [*156] upon the * learned Judge to direct an acquittal, insisting that the provisions of the several sections of the statute, on which the indictment was framed, formed but one offence, and were to be taken together, and that the legislature having created a new offence, and ap- pointed and prescribed a particular remedy for such new offence, no other method of proceeding could be pursued consistently with the ordinary rules of legal construction, and the necessary interpretation of the words of the statute (a). The learned Judge left the case to the Jury, stating (a) Thn Bocond section of the Act gave authority to one or more magistrates, to give notice to the meeting to disperse; and the tiiird section gave a summary juris- diction to two magistrates, to punisli, in case of refusal, by one montli's imprison- ment for tlie first offence ; " and for a second, or any subsequent oifencc, ap^ainst the provisions of this Act," by three months' imprisonment. Tlie objection in the case in the text proceeded on the suppouition, tliat a summary tribunul being estab- lisiied for the trial of the offences in the third section, it was the only tribunal which had jurisdiction over the oftcnco created by the first section. The first sec- tion, however, makes certain acts amoi'nt to a misilemeanor, and punishable accord- ingly; tlic other sections, appear chiefly of a preventive nature, making resistance to the magistrate's authority a distinct ofTenee, punishable in a summary maniicr. The words in the third section "against the provisions of tliis Act" are ijttmhle) to be construed, " in this section mentioned." •■ri 1834] REX V. BRYAN. 156 —r. it to be his opinion, that the first section of the Act was sufficient hy itself to support the indictment; and after a long deliberation they acquitted eleven of the tra- versers, and found three of them guilty. The learned Judge, however, respited the judgment, in order to have the opinion of the Judges upon the abstract question, whether upon the first section of the statute, the indict- ment could be maintained. U'li m ■son- gainst n the ssta fa- bun al it sec. xord- ilance inner. lie) to Ten Judges {Smith, B., and Pennefather, B., being absent,) were unanimously of opinion, that the convic- tiorf was right. THE KING V. MARTIN BRYAN. [*157] The prisoner was convicted upon a confession made to a person who cautioned him not to say any thing to criminate Iiimself ; but this confession was nicrely the second repetition of a former confession made to another person who had previously said to tiie prisoner, "The evidence at tlje inquest was so clear against you, tiiat tiiere can be no doubt you are the guilty man." Held, that tlic con- viction was right. Martin Bryan was tried and convicted before Johnson, J., at the Spring Assizes for Wexford, in 1834, for the murder of Walter Brien. The deceased was a young man about 16 years of age, lind the son of a widow of the name of Brien, with whom the prisoner had lived as steward : she had also a younger son and a daughter. -:€. ;i il 1 ,1 1 |J 3r ; *«•"* ' I M 157 JEBB'S RESERVED CASES. [April 15 The prisoner slept in the barn on the night previous to the murder, and had done so for some time before, vv^ith another man of Uie name of Bryan also in Mrs. Brien^s employment. On the morning of the day on which the murder was committed, the prisoner was seen by a maid- servant at an early hour in the hall of the house. From this hall the stairs went up leading to the bedchamber. After this time the younger brother of the deceased, a boy, who slept with him, called to the maid-servant to come up to his brother; she went up and found him in his bed covered with blood ; he had his head deeply and heavily cut as if with a hatchet. There was a gl'eat deal more evidence on the part of the crown, but noth- ing sufficient to bring home this crime to the prisoner; and had the case rested on this evidence he must have been acquitted. Neither did there appear in the course of the trial the slightest grounds which could have induced the prisoner to commit the crime. The murder was committed on the 12th of August; on the 16th of the same month ihe prisoner was arrested, and Mr. Barry, a magistrate, saw the prisoner in cus- tody. The prisoner said to Mr. Barry that he wished to see the Reverend Mr. G" Flaherty, a Roman Catholic [*158] clergyman. * Mr. Barry at this time held out neither hope nor threat of any kind, nor did he give him any caution not to criminate himself. Mr. Barry sent for Mr. 0' Flaherty, who was then at Mr. Barry's house; Mr. 0' Flaherty came, and Mr. Barry left them iBkm '^^^^us^m IN M [ust; 5ted, cus- ished lolic out give \arry |rry's them 1834.] REX V. BRYAN, 158 together. Mr. OFlaherty was examined, and he stated that on seeing the prisoner he appeared greatly agitated, and the witness said to him, " The evidence at the in- " quest was cso clear against you, that there can be no " doubt you are the guilty man." The witness however was not then called on to state what passed between them as to the murder, but the witness said to the pri- soner, " Have you any objection to state to Mr. Barry "what you have stated to me?" He said that he had not. Mr. Barry was then called in, and the prisoner stated in the presence of Mr. Barry what he had before mentioned to Mr. C Flaherty. A difficulty having been expressed whether, under the circumstances of the case and the announcement to the prisoner of his guilt in the terms above mentioned by his clergyman, what had been stated by the prisoner could be received as evi- dence, the counsel for the crown said they would call Mr. Barry again, to state what passed between him and the prisoner at a subsequent interview, in which Mr. Barry had cautioned him not to say any thing to crimi- nate himself Mr. Barry was then called, and stated that he had another interview with the prisoner on the evening of the same day on which he and Mr. G' Fla- herty had seen the prisoner, as he had already stated, and that in this last interview he cautioned him not to say any thing to him or the police to criminate himself. Mr. Barry was then allowed to state what the prisoner on this occasion said to him ; and he accordingly said that what the prisoner stated on the present occasion '" 1l ■ -' ,1 i''vl ■ rjW' ■m W ■'ill 108 JEBB'S RESERVED CASES. [April 15 ( ■■ ii i ; ■ ! ■'' . I ■ was in every respect the same vv^ith what he had stated [*159] at the prior * meeting between him and Mr. O' Flaherty. The prisoner said he was the person who committed the murder, and that no one else was con- cerned in it; that he had killed the deceased with the pole of a hatchet, and had given him two blows on the head ; he had got the hatchet in the parlour ; the de- ceased lay on the outside of the bed and his younger brother on the inside ; he gave him two blows, and the deceased never stirred. This, as far as related to the commission of the murder, was the confession made by the prisoner, as stated by Mr. Barry. The learned Judge suffered the evidence to go to the jury, and the prisoner was convicted, and the usual sentence was passed. In the progress of the trial Johnson, J., communicated with Joy, C. B., who sat in the Civil Court, and laid the matter before him. They both agreed that the best course to pursue would be to receive the evidence and let it go to the jury, and to respite the execution of the sentence in order that the opinion of the Judges might be taken, whether, under the circumstances stated, the confession was admissible evidence as against the prisoner. Eleven Judges {Joy, C. B., being absent) unani- mously held that the conviction was right. See ante, p. 15, The King v. Gibney, and note. "of "7 "Ex "sum "tob( "the The my; b lii 1 w 11 "■-".»*«»»« n m ■! II 1834.] EXCISE PRESENTMENT, GALWAY. 1C0» ^m mm * IN the Matter of a PRESENTMENT by the Grand Jury of the Town of GALWAY, for the COLLECTOR OF EXCISE. ; !;,j ; Inani- The Grand Jury having rejected a presentment for the repayment of tlie Collector of Excise under the 7 G. 4, c. 74, s. 56, and tlie Judge at the same Assizes having omitted to add the amount to the Treasurer's warrant under s. ]32of the same Act: HeU, that tiie Judge at the Assizes next but one afiter had authority to order it to be so added. At the Spring Assizes for the County of the Town of Galwaij, in 1833, the following presentment was offered to the grand jury : — ** We, the grand jury at said assizes, ** do hereby present the sum of twenty pounds, to be ** levied off said county, and paid to the treasurer, and " to be repaid by him to the collector of excise at Gai- " way, being so muc'i advanced to the Inspector-General " of Prisons, as per the annexed receipt, under the Act "7 G. IV. c. 74: — Received from the Collector of " Excise for the County of the Town of Galway, the " sum of twenty pounds sterling, being the sum directed *' to be paid to me, as Inspector-General of Prisons, by " the Act 7 G. IV. c. 74, s. 56, for my inspection and " report on the gaol of that county, for the year ending " Dec. 1832. Dated this 28th Dec. 1832. "JAMES PALMER, Inspec.-Gen. of Prisons." The above presentment was rejected by the grand jury ; but the Judge who presided at those assizes omit- 26 mv ' .:(l'"" ' iA: I * i tji- :' j ml 1 'i i 1: 1 160 JEBB'S RESERVED CASES. [May ted to order the above sum of twenty pounds to be added to the warrant of the treasurer, for the purpose of being levied, pursuant to the provisions of the 7 G. IV. c. 74, ss. 5G, 132. At the Spring Assizes, in 1834, this pre- sentment was again "ent to the grand jury, as also a presentment with a similar receipt for the year 1833. The grand jury rejected both presentments, and the matter of both presentments was then brought before [*161] Burton, J., the Judge * of Assize, who directed the sum of twenty pounds, for the year 1833, to be added to the treasurer's warrant; but with respect to the presentment for the year 1832, it was insisted by the grand jury, that they had no authority under that Act to make the presentment, which it was contended could be made only by the grand jury at the Spring Assizes of 1833, under the 56th section, and consequently that tie Judge at any subsequent assizes had no juris- diction or authority under the 132d section, to order it to be added to the treasurer's warrant for those as- sizes; and this question Burton, J., reserved for the consideration of the Judges. All the Judges being present, seven (Bushe, C. J., Joy, C. B., Moore, J., Jebb, J., Burton, J., Vandeleur, J., and Foster, B.,) were of opinion, that the Judge had authority to make the order in question, under section 132 of the 7 Geo. IV. c. 74. The remaining five Judges were of a contrary opinion. (a) force is| also thd tJiose of who shJ army, '| c. 6, s. shall bel the regiJ and vagi prelenccl at the tif as a (lose — **^-^ vUkJn iT irt a 1834. REX V. M'CLUSKY. 1G3» * THE KING V. JEREMIAH M'CLUSKY. The traverser was indicted under the Mutiny Act of 1834, for voluntarily delivering himself up as a deserter, and was also presented as a vagrant. The Jury found against the traverser upon the indictment, and for him upon the presentment. Held, that no judgment could be pronounced against him, and that ho ought to be discharged. the At the Spring AvSsizes for the County of Armagh^ in 1834, Jeremiah M'Clushj was tried before Moore, J., on an indictment under the 23d section of the Mutiny Act (a) : " For that he did voluntarily deliver himself "up as a deserter from his majesty's forces." He was at the same time presented in the ordinary way as an idle vagrant without any settled place of residence, and so forth. The jury found on the first indictment, that he did voluntarily deliver himself up as a deserter from his !»«< .J ■''I!!'' ■ t .'1 h-\ iiji (a) The Mutiny Act for that year was the 4 W. 4, c. 6. That at present in force is the 3 Vict. c. 6, and the corrcs|)onding section ap,»licablc to this case is also the 23d. *Thc provisions of the latter enactment are somewhat diifercnt from those of the 4 W. 4., c. 6, s. 23. The 4 VV. 4, c. 6, s. 23, enacts, that any person who shall voluntarily deliver himself up as a deserter, shall be liable to serve in the army, "or shall be liable to be punished as a rogue and vagabond." The 3 Vict, c. 6, s. 23, enacts, thai any person vohuitarily delivering iiimself up as a deserter, shall be liable to serve, &c., " and in case such person shall not be a deserter from the regiment stated in his confession, he shall be liable to be punished as a rogue and vagabond, or may be prosecuted and punished for obtaining money under false pretences;" — "and if the person so confessing himself a deserter shall be serving at the time in any of her Majesty's forces, he shall be deemed to be and di'ult with as a deserter," (i. e. handed over to the military power). I' I II: : 1.1 . 1 I' ! 188 JEBB'S RESERVED CASES. [Juno 14 majesty's forces, but found for the traverser, and against the presentment, on the second charge. Under the Mutiny Act one of the consequences of voluntarily deUvering himself up as a deserter was liability to be punished as a rogue and vagabond; and the jury having found against the presentment, the learned Judge did not conceive that he had authority to pronounce any sentence. It was urged, however, on behalf of the crown, [*163] (it being a state prosecution,) that the * prisoner having voluntarily delivered himself up as a deserter, he thereby became liable to be punished as a rogue and vagabond, without, and even against, the finding of a jury, that he was so; but it appeared to the learned Judge that whatever might be the strict construction of the 23d section of t!ie statute, he ought not to punish the prisoner as a vagrant after it had been negatived that he was such, upon a presentment prepared ano presented by the crown counsel, and to sustain which the only evidence given was his having delivered him- self up as a deserter; and he, therefore, reserved for the consideration of the Judges the question, whether in this case any, and if any, what judgment should be pro- nounced. Ten Judges {Smith, B., and Vandeleur, J., being absent,) ruled that the prisoner should be discharged (a). (a) Quare as to the exact meuning of "rogue and vagabond" in the Mutiny Act, as applicable to Ireland. As that Act extc;nds to both countries, it is to be presumed that the expression is to have as nearly as possible the same meaning in I :^i JUm^ 1834] ROBERT HENRY SOUTHWELL. 16S both. In England it appears to be well defined; Bailie's Caie, 1 Leach, 69G; but in Ireland, it must mean cither a "vagrant," who (by a system peculiar to Ireland,) is to he preteuleil under the 9 G, 2, c. 6, and 31 G, 3, c, 44; or else an offender under the old Acts of 33 Hen. 8, c. 15, and 10 & llCur. 1, e. 4, wliich by the 13 fi, 14 G. 3, e. 4G, arc Itcpt in force in the King's County, and tlio Cuutilius of iir- tnagh, Wexford and Wicklow, Ttie latter class of Acts do not seem to create an indirtible ofTuncc, but merely to give a summary authority to justices of the peace. In the case in the text, the decision would appear tu rest on this ground: If tiio words "rogue and vagabond," meant "vagrant" under the 9 G. 2, c. 6, and 31 G. 3, c. 44, the finding of the Jury on the presctitniunt put an end to the question; and if tiicy meant an ofTendcr under the old Acts, those Acts gave no power to the Judge uf Assize to sentence. ■k ««««' anc licli lim- the \x in pro- feing (a). lutiny |s to be ning in IN the Matter of ROBERT HENRY SOUTHWELL, [*104] a defendant in WOOLSEY v. SOUTHWELL, and oUier causes. A person in custody under an illegal arrest is entitled to be discharged from collu- sive detainers lodged at the same time, and bond Jidj detainers subsequently lodged with the same sheriff; but not from bond Jide detainers lodged with tiio marsiial of the niarshalsea, to which lie had been removed by habeas corpus, upon his own application. ' In Michaelmas Term, 1834, various motions had been made on behalf of R. H. Southwell, a defendant in seve- ral actions in the three law courts, for his discharge from cur* a degraded clergyman, for celebrating a marriage between a Pro- testant and a Roman Catholic, an entry, signed by the Rcgintrar of the Consis- torial Court, of the sentence of degradation, in a book wiiich contiiincd also an entry of the previous proceedings, is sufficient evidence of the degradation. The prisoner was tried before Smith, B., at the Spring Assizes at JlfaryJoroM^^/f, in 1835, on an indictment (a) (a) Under the 13 6. 1, c. 3. 1H35.] RKX .». HANDYS. 168 which charged "that lio on Iho 4th of Ortohcr, l^^i, " at tVc, was a dc^ynulod ch'p^y'Hii" <'t' tlio United King- "dom of KiKjhiml and Irchind, and tliat ho hcin^' such "Ibloniously and nnlawfully did ccluhrato a niarriii;^c "between Wallij (iraij, a protestant, and Catherine Don- " ;/('//y, a papist." Tlie second count was siniihir, but descril)ed the ])risoncr as a degraded * ehn'gy- [*lfi7] man of the church of Irehind, as by law cstaijiished. Tiie tliird count was I'ko tlio second, for c(!k.'brating a marriage between Wtdlij (Irai/, a reputed protestant, and Cat/icri)ie Donncllij, a reputed papist. The fourth count described tlie prisoner as a Uiyman })retending to be a clergyman, &c., and as such celebrating a mar- riage between Wallij (Jrai/, a protestant, and Catherine Donnel/t/, a papist. The fifth count, describing the prisoner like the fourth, was for celebrating a marriage between a reputed protestant and a reputed papist. The sixth count, describing the prisoner like the first, was for taking upon himself to celebrate a marriage between Wallij Gray, a reputed protestant, and Catherine Don- nelly, a reputed papist. I \ ffl '''I ,ii*i 1 i' :> '!;ii' "J'' ^ 1 '' If la) The following were the proofs in support of the above indictments. — Henry Davis, clerk in the registry office of the dioce.se of Leighlin, produced the original entry, got by him in the office, and which purported to be a sentence of degradation against Richard Sa?idi/s, priest and deacon. — The Rev. Thomas llarpur, a beneficed clergyman of the established church, who had been 27 167 JEBB'S RESERVED CASES. [Easter present at the degradation, identified the prisoner as the object of that sentence. He said that he did not know where the prisoner was at the time of that sen- tence; nor whether any citation had been served. — Henry Davis being called up a second time, said he had held his present situation for one year from February, 1834; did not know who produced the book on a former trial in 1828 ; was not in office when the sentence was signed ; knew Mr. Preston, the registrar ; Mr. Browne was his deputy, and had the care of all the official papers, and witness was a clerk in his office. — Mr. Hm'- pur being also called up again, proved the signature of Mr. Preston, the registrar, to be his handwriting ; be- [*168] lieved, indeed was * sure, that he had seen him write ; but besides, he had been in correspondence with him, and had received from him letters in answer to letters written by witness to him ; witness had been for twelve years incumbent. — Arthur Moore Moss, Esq., proved that he had seen the prisoner officiate as curate in the protestant church of the parish ; never saw him marry any one. — Catherine Donnelly, a dress-maker, proved that she knew Mr. Gray; she was unmarried; he proposed marriage, and she agreed; they went to- gether for the purpose of being married, accompanied by Mr. Hutchins. The prisoner performed the cere- mony according to the forms of the protestant church. Mr. Gray v^as a protestant; witness was a Roman Catholic; after that ceremony they cohabited as man and wife ; they did not now ; Mr. Gray had left her ; 1835.] REX V. SANDYS. les she had known him for three or four years ; witness was about twenty years of age, not quite twenty; Mr. Gray's father was a magistrate; the marriage took place at Clonena; witness never saw Sandys before or si rice; witness attended the trial under a summons. — Thomas Hutchins proved that he was a policeman ; was acquaint- ed with Gray ; at his request he went with him and last witness, and was present at the marriage; eight shillings were paid, and twelve more promised to be paid next day ; the ceremony was performed on the 4th of October, 1834, about two o'clock, according to the protestant form; witness never saw Sandys before or since, except when he was going into the Old Gaol ; he identified him ; the ceremony lasted about three quarters o^ an hour. Here the evidence for the prosecution closed. The prisoner called Mr. Thomas Mosse, who said he knew the prisoner in 1813, when he was looked upon as * highly respectable; he had, however, been [*169] tried for, and convicted of, offences similar to the present. - in 1 i 1 f ^ ^ [■ t>i i i^ i 1 11*: I iW"! ifil' ■ I 1 3'' I !Ji ,ii;i .1! The Jury found the prisoner guilty, and judgment of death was recorded ; but he was recommended by the learned Baron to eighteen months' imprisonment. Before the verdict, Daly, as counsel for the prisoner, objected to the legality and sufficiency of the evidence for the prosecution. •i:-' i '. I "rj **■! d if 11 I « ■ I 169 JEBB'S RESERVED CASES. [Easter The objection was thus stated : Queoi'sCowiti/, ) Be it remembered, that at the il/rt?"//Z>o- ifo Wit. } rough Lent Assizes, in the year 1835, held before the Honorable Sir W. C. Smith, bart., Rich- ard Sandi/s, clerk, was arraigned for having, on tlic 4th of October, in the year 1831, being a degraded clergy- man of tlie church of Ireland, celebrated a marriage between one Wallij Gray, and one Catherine Donnelly, contrary to the statute ; to which charge the said Richard Sandys pleaded not guilty ; on which a Jury being im- pa,nnelled to try the said issue, counsel learncci in the law gave in evidence on the part of the crown, to main- tain and prove the said issue, a book brought from the Consistorial Court at Carlow, and purporting to contain therein an entry signed by the registrar of said Court, and which recited merely that said Pichard Sandys was degraded as to his rank of clergyman ; and said counsel learned in the law insisted on the part of the crown that said entry contained in said book was conclusive evi- dence of the degradation of the said Sandys from his rank of clergyman of said church of Ireland; but io [*170] reply to this, counsel learned in the law * of tiu'; said Richard Sandys did then and there insist before the said Honorable Sir W. C. Smith, bart., that said evidence was not suiFicient to convict the said Sandys, inasmucii as there was no evidence clear and satisfac- tory that said book of said Consistorial Cojiirt was pub- licly kept, and also inasmuch as (if said evidence were INi of Held, 1 tonat tI)C offti The of mcB Us. lit. 1835.] BOARDS OF HEALTH, MAYO. 170 conclusive of said sentence of degradation,) there ought to have been regularly given in evidence on tlie trial of said issue, the proceedings on which said sentence of degradation was founded (1 Phil. Evid. 373; Peake on Evid. 74;), analogous to the practice relative to decrees of the High Court of Chancery ; whereas the truth and fact is, that no such evidence was produced by the counsel learned in the law on the part of the crown, though insisted on by the counsel on the part of said Sandys. At the meeting of the Twelve Judges, the book of the Consistorial Court was produced, and it appeared that the previous proceedings were entered therein. The Twelve Judges were of opinion that the convic- tion was right (a). (a) Vide Rex v. Slonage, ante, 12L IN the M-xUer of a PRESENTxMENT for Repayment [*171] of advances to BOARDk« OF HEALTH, County MAYO. Held, tliat a presentment for llic repayment of money advanced by the Lord Lieu- tenant out of the consolidated fund, under the 58 G. 3, c. 47, &. 2 W. 4, c. 9, to tlio Hoards of Healtli estahlisiied in different districts of a county, should be raised off the county at laigc, and not ofl" the respective districts. The Lord Lieutenant having directed that several sums of money, amounting in the whole to the sum of £6,636 14s. 2c?. should be advanced out of the consolidated fund, - 31' I ;;ii' m ;.f^ ii lili *H»I -ivi! 171 JEBB'S RESERVED CASES. [Easter if T ; i ; III ; ■■{ ' li. flij'! ' pursuant to the provisions of the 58 G. III. c. 47, and the 2 W. IV. c. 9, to the respective boards of health, •which had been established in different districts of the county of Mayo, an appUcation was made at the Spring Assizes for Maijo, in 1835, to the grand jury of that county, to present the sum of £6,636 14s. 2c?. to be levied off the county of Maijo, to repay the sums which had been so advanced. The grand jury thought that the sums wiiich had been so advanced should not be levied off the county at large, but off the respective districts to which the money had been advanced, and in the proportions in which such districts had respec- tively received the same. Vandekur, J., (the Judge of Assize) accordingly re- served for the consideration of the Judges the question, whether the grand jury was bound to present the said sum of £6,636 145. 2d. to be levied off the county at large, or had a right to elect whether it should be levied off the several districts to which it had been advanced, and in the proportions in which they had respectively received the same. A similar question was raised by the Grand Jury of the county of Roscommon, and re- served by Burton, J. [*172] The twelve Judges unanimously decided, that the county at large is imperatively subject to the charge {a). (a) The 6 & 7 W. 4, c. 116, s. 90, now regulates tlie repayment of advanccfi. It uses tlic general words, timt the sums advanced " Hhall he raised off such county." (I < mi " ' brj -2 ye u 'anil roac mac cost 1835.] ROAD PRESENTMENTS, ROSCOMMON. 172 IN the Matter of PRESENTMENTS for advances from Government for the repair of ROADS in the Co. ROS- COMMON. Held, that the 6 G. 4, c. 101, s. 5, and the 1 & 2 W. 4, c. 33, s. 107, as to present- mcnts by grand juiics of sums equal to tliosc advanced out of the consolidated fund for the repair of roads, were imperative upon the grand jury. At the Spring Assizes for the County of Roscommon, in 1835, three presentments were laid before the Grand Jury, one of which was as follows, the two others being of the same description : " We present the sum of £ 54 ** 175. 5d. to be levied off the County at large, paid to " the treasurer, and by him to the collector of Excise in " Athlone District, to reimburse his Majesty's treasury "like sum advanced for the repairs, &c. of certain pub- " lie roads in this County." A letter in the following terms was at the same time laid before the Grand Jury : "Whereas in pursuance of the provisions of an Act " passed in the 6th year of the reign of his late Majesty " Geo. IV., entitled, ' An Act to provide for repairing, " * maintaining, and keeping in repair certain roads and " 'bridges in Ireland,' and of an Act passed in the 1 & " 2 years of Wm. IV., entitled, * An Act for the extension " * and promotion of Public Works in Ireland,' several " roads situate in the County of Roscommon have been " made, the whole, or at least one-half of the original " cost whereof has been defrayed at the public expens3: n" ii'' J *173 J EBB'S RESERVED CASES. [EttHtcr "I, Sir William Goss 't, K. C. IL, under *scc- [*173] *' rctary to the Lords Justices, and g -iicral govern- "ors of Ireland, do licrcby ccrify 1o t'le fe retary of " the Grand Jury of the said County of Roscommon, "that the sum of £5i lis. 5il, advanced out of the *' consolidated fund, has been expended upon the repairs *' of the said roads so situate and lying in and within the "Countv of Roscom?no)i, of which sum of £54 175. 5d. "the said Giand Jury are by the said Act required to "make presentment. Dublin Castle, Feb. 27, 1835. WM. GOSSETT." 1835. II I'i .1 The Grand Jury objected to making the presentments, upon the grounds that the roads to which they related were not in their opinions put in good and sufficient repair, and that the account of the manner in which the money had been expended should be also laid before theni, for their examination and investigation; and upon the matter being brought before Burton, J., (the Judge of Assize) and the Grand Jury having been told by him that the law was imperative upon them to make the presentments, they at length consented to make them, on the assurance of the Judge that the question (whether the law was imperative upon the Grand Jury to make the presentments, or whether the Grand Jury had a right to exercise their judgment upon the fact of the roads being put into good and sufficient repair, and the money properly expended or not, and thereupon to make or reject the presentments) should be submitted T fT [ill 1835.] INSPECTORS OF WEIGHTS AND MEASURES. 173 to the consideration of the Twelve Judges. The fiating of the presentments was accordingly reserved for such consideration. The statutes referred to in tliis case were the 6 Geo. IV. c. 101, ss. 2, 3, 4, 5, 7, and 8; and the 1 & 2 Wm. IV. c. 33, ss. 83, 107, and 111. *The Twelve Judges were unanimously of [*174] opinion that the law was imperative upon the Grand Jury to make the presentments, upon the proper certi- ficates being laid before them (a). (a) The 1 & 2 W. 4, c. 33, s. 107, revived the 6 G. 4, c. 101, ss. 4 &. 5 of which regulated the adviinccs by govcrnnieiit, and the repayment by presentments. Tiie 6 & 7 W. 4, 0. 116, 8. 6], (referring to the 1 &, 2 W. 4, c. 33,) now regulates the advances by government, and s. (i"',, the repayment. The ditfercnee between the wording of the latter enactment, (6 ??. upon the 6th section of the 4 & 5 \Vm. IV. c. 49 («), as to appointing an inspector of weights and measures, &c. They made this application on the ground of a supposed intention in the legislature of speedily altering the law; and of their wish therefore to save the County an expense in the interim. Some of the body had re- ceived information of this intended change from one of their county members, whose letter they submitted to the learned Baron, who, however, thought and told them, that no prospect of a change in the law could justify an omission to act upon the injunctions of the [*175] statute law, as it then -stood. *They then inquired of his lordship whether he considered the sixth section as peremptorily imperative ; and he told them he thought it was. They finally agreed to make the pre- sentment appointing an inspector, requesting the learned Baron to respite it for the opinion of the Judges, as to whether the sixth section was imperative, and left nothing to their discretion. As no inconvenience could result to the County from this, he consented to do so. On the same principle, having made the inquiry pre- scribed by the seventh section, and learned that a com- plete set of copies of the imperial standard weights and measures required by that section had not been pro- vided, the learned Baron made the order upon the Trea- (a) Repealed by the 5 & 6 W. 4, c. 63, which, however, contaiiiB similar pro- visions in ss. 19 &, 20. The latter Act is referred to by 6 & 7 W. 4, c. 116, s. 116. At to ther Thci 17tl 1835.] SURVEYOR'S SALARY, KING'S CO. 175 surer which that section directed, but suspended the effect of such order until the opinion of the Judges upon this part of the case also should be had. 'l' ' i The Twelve Judges were unanimously of opinion that the two sections in question were imperative. IN the Matter of a Presentment by the Grand Jury of [*176] the KING'S COUNTY for the Salary of the COUNTY SURVEYOR. Held, tliat where a County Surveyor had been appointed only two months before the Assizes, the Grand Jury were not bound to present for a full moiety of his salary, or a full moiety of the expenses of his office and clerk, under ss. 39 & 41 of the 3 &. 4 W. 4, c. 78. Held, also, that even if the moiety ought to have been presented by a former Grand Jury, a subsequent Grand Jury could not rectify the mistake. At the Spring Assizes for the King's County, in 1835, a presentment was offered to Bushe, C. J., under the fol- lowing circumstances. r ! ' 1' >\A Mr. Richard B. Grantham was appointed surveyor to the King's County by warrant from Lord Welksley, then Lord Lieutenant of Ireland, dated May 16th, 1834. The Assizes for the King's County commenced on the 17th of July following, and tho Grand Jury then 17(5 JEBD'9 RESERVED CASES. [Eaxtcr assembled presented £41 135. id. to the Surveyor as his salary for two months at the rate of £250 per an- num, pursuant to the 3 & 4 W. IV. c. 78, s. 39 (a), which commenced in operation in May 1834. The Grand Jury at the Spring Assizes presented a further sum of £8 0., and tlic 13 &, 11 G. 3, c. 24, arc still ill t'orvv in Ihihlin, to wliirli they were cxtLiHlcd by tliu 3 (i. I, c. ^Ti, In otIiLT coiintic'H, the cnni: of dcHcrlcd children Ih provided (or by the C &, 7 W. 4, c. IIG, 8. 10!): the intention ofwliicli enuctinent would Nccin to be to allow more than one ordt., tor tlio child, when lell expoHcd, must be under the u^re oi' two ycarx, but no 8um i8 to bo prcxented for itn supjiort after it Ikih attuiiied tttrhr ycnrM. Tho 7 VV. 4, c. 2, 8 7, extends tliu luut-nientioncd euactincnl to eauett which hud occurred pruvioutily. IN lite Matter of a JUDGE'S ORDER for the repayment of advances out of the Consolidated Fund for the support of tlie CARLOW District LUNATIC ASYLUM. The Judg'c may malcc an order for the repayment of advances out of the consoli- dated fund, under tlir G G. 4, c. 54, s. 2, although the Assizes next aflcr the order of council had been passed by. li II' Before the Summer Assizes for Carlorv in 1834, a sum of £89 10s. Id. was advanced by the consolidated fund for the maintenance of ten patients from .ne City of Kilkenmj in the District Asylum at Carlorv, for the period comprized between the 20th of January and the 3d of June, 1834, at the rate of £8 9.9. Old., being the same rate as was charged for patients from the Counties of Kilkenny, Wexford, Kildare, and Carloiv. The usual order of the Lord Lieutenant and Council was laid 183G.] LUNATIC ASYLUM, CARLOVV. 188 before the Grand Jury ; but they refused to present, on tlic grounds of its being an excessive demand, and having been previously rejected by the cess-payers and justices at the Special Sessions. ondoU* I order At the Spring Assizes i ^835, a sum of £105 Is. 2icl. was advanced from the consolidated fund for the maintenance *of nine patients from the same [*189] city, at the same rate, for the period from the 3d of June 1834, to the 10th of January 1835. The usual order of the Lord Lieutenant and council was laid before the Grand Jury, but they refused to present for the repayment of this advance for the same reasons as before assigned. By the 6 G. IV. c. 54, (amending the 1 & 2 G. IV. c. 33) it was enacted (s. 1) that after any asylum shall be fit for the reception of lunatic poor, the Lord Lieu- tenant may order and direct any sum not exceeding £ 10,000 per quarter, to be issued out of the consolidated fund for the support of such establishment; and by s. 2, " That it shall be lawful for the Grand Jury of any and " every County, County of a City, or County of a Town " in Ireland, in or for which, either wholly or in part, " any such Asylum had been or shall be erected, and " such Grand Jury are hereby required, at the Assizes " next after the date of any sucli order for the advance " of money for the opening, carrying on, or maintaining "any such asylum, or as soon after as they shall he w Iff •, I fHT m JRBirS RESERVED CASES. [Fcbrunry 4 ** thereto required, and from time to time, whoncvcr the "case shall happen, to make a presentment for the " raising off any sucii County, County of u City, or " Comity of a town, such sum or sums of money as shall " bo necessary for the repayment of any such sum or " suras so advanced, or any part thereof, at such times " and in such proportions as shall be directed and ascer- " tained by any order or orders to be made by the Lord " Lieutenant or other chief governor or governors of «* Ireland in council as aforesaid ; and if any such Grand •'Jury shall neglect or refuse to make any such pre- " sentment, the court shall order the sum or sums which *' ought to be so presented to be raised, as if the same •' [*190] had been so * presented, and the same shall " be raised and paid accordingly." At the Summer Assizes in 1835, the Crown-Solicitor havint; brought the matter under the consideration of Joy, C. B., h:.. lordship ordered that the question as to the power of the Judge of Assize to make orders under this enactment for payment of arrears due upon ad- vances out of the consolidated fund, should be submitted to the twelve Judges. Nine Judges {Doherty, C. J. C. Pleas, Moore, J., and Torrens, J., being absent), decided unanimously that the Judge of Assize M'as at liberty to make the order required by the statute for payment of the arrears, although the Assizes next after the date of the Lord (< li (I 1 1 < If; 1836.1 CO. WICKLOW PRESENTMENT. 100 Lieutenant's order for the advance had been passed by; and that the Judge ought to make such order for repayment upon the proper documents being laid before him (rt). (a) Tho 6 & 7 W. 4, c. IIC, n. 93, now provided for tlio rcpnymont, by prcRcnt' mcnt, of udvanccH from tho coiixulidutud fund; iind iuHtciid of tlio wordii used in tho C G. 4, c. .54, B. 2, it umcsi the oxpruHHiun "at each aHHizoH." Rut it docs nut provide for the cuhc of tho Grand Jury rcfiixinfr to present, and therefore perhaps tho provisionH in the G G. 4, c. HA, r. 2, on tu tlio Judge's order, are vtill in force. — Tho 9l8t and !)3d sections of the G and 7 W. 4, c. IIG, refer to tho Ada mentioned in tho case in tho text (1 &, 2 G. 4, and tlio ainunding Act, 6 G. 4, c. 54,) as regulating tlio Lord LieulenaiU't ordcrH for advances. •. ( IN the Matter of a PRESENTMENT for advances to [*191] CONTRACTORS in the County WICKLOW. A presentment in the form of a general authority to the treasurer to make advances to contractors in every case where the sum should exceed £21), held not to bo warranted by the 3 &, 4 W. 4, c. 78, s. 49, (6 & 7 W. 4, c. IIG, s. 128.) J., and |sly that lie order arrears, le Lord The following resolution was agreed to by the Grand Jury of the County of Wickiorv, subject to the approval of the Judge of Assize. " We hereby authorize the trea- " surer in any case where the sum should exceed twenty " pounds presented at this Assizes, to advance to con- *' tractors from any money in his hands applicable to " such purpose, one half of the cost of the said work, " provided it shall be certified by the surveyor that more 191 JEBB'S RESERVED CASES. [May 25 "than half of the cost of said work has been expended, " conformably to the contract, and that due notice has " been lodged with the secretary of the Grand Jury, " within the limited term for lodging applicp.tions of the " intention of such contractor to apply for such advance, " and that such advance shall be approved at Special " Sessions." This resolution was founded on the 49th section of the 3 & 4 Wm. IV. c. 78, and much discussion had taken place on the subject of it. Some members of the Grand Jury contended that no general resolution of the nature proposed could be passed, and that the section in question did not authorize it; other members argued that such general authority was necessary, as otherwise the section would be a nullity ; and they particularly referred to the three separate conditions set forth in the section as necessary to be performed before any contractor could get the moiety of the cost of the work contracted for by him; one of those conditions being the approval of the justices at Special Sessions subsequently to be holden ; [*i92] which would guard the general * authority given to the treasurer in the first instance by the Grand Jury, from any abuse (a). Doherty, C. J. C. Pleas (the Judge of Assize), respited the presentment until he should have an opportunity of (fl) This condition is omitted in the C & 7 W. 4, c. IIC, s. 328. 183G.] ROAD TRAVERSE, CO. KILKENNY. 198 ascertaining whether, in the opinion of the Judges, such a presentment ought to be fiated. Eleven Judges {Pennefathcr, B., being absent) de- cided unanimously against the presentment. &i IN the Mittcr of TRAVERSES to Presentments for ROADS in tiic Co. KILKENNY. Held, that the notice of traverses directed to bn given by the 3 & 4W. 4, e, 78, s.5.5, prKvious to the commencement of the Asshes, siiould be given previous to tlio Bwciirinfr of the grand jury for fiscal busii.ess. Such traverses, wiien entered too late at one Astiizcs, cannot be tried at tiic next. At the Spring Assizes for the County of Kilhenny, in 1836, the following or'Jer was made by Johnsoti, J., on several road traverses for damages which had been entered at the Summer Assizes in 1935: — " Respite the " trial of these traverses for the opinion of the Judges "upon the point, whether the n(>iice to the secretary of " the Grand Jury was .sufficient, the Grand Jury for fiscal ** business having been sworn on the 22d of July last, *' the notice served on ^\^c. Ibll-owing day (the 23d), and "the commission opened on the 2ilh, the next day." Several road traverses for damages having been en- tered in the crown book for trial, the learned Judge was ' t| •193 JEBB'S RESERVED CASES. [May 25 applied *to in court to strike out such traverses, ou the ground that notice had not been given pursuant to the 55th section of the Grand Jury Act then in ope- ration (3 & 4 Wm. IV. c. 78) to the secretary of the Grand Jury, previous to the commencement of such Assizes, stating the amount of damage intended to be claimed. The impression of the learned Judge at the time was, that " previous to the Assizes" should be con- strued to be "previous to the Grand Jury being sworn" on the discharge of their fiscal duties; because it might happen that if the Grand Jury, at the time of entering into the consideration of such presentment, were ap- prized of the number of traverses to be taken and the amount of the sums sought to be recovered, they might not have considered it advantageous to the County to pass such presentment; whereas if they were not aware fflf any such intention to traverse, or the amount of the damage sought to be obtained, they might pass a pre- sentment which they would not otherwise have done. The learned Judge therefore respited the trial of these traverses until the opinion of the Judges should be taken upon the following points: first, whether the words " previous to the commencement of the Assizes" as used in the Grand Jury Act, meant " previous to the day on " wMch the Grand Jury are sworn on the discharge of "tlieir fiscal duties;" and secondly, if such were the meaning, whether the entered traverses could be tried at the next Assizes before a petit jury to ascertain the amount of the damajres ! 18S6] DROGHEDA PRESENTMENT, GAOLERS. 193 Eleven Judges {Pennefather, B., being absent) hav- ing met, NINE of tliem were of opinion that both ques- tions should be answered in the negative. Torrens, J., * and Cramptox, J., held that the traverses [*194] might be tried («). (o) Tlin 1 ;' tth section of the G & 7 W. 1, c. 1 1 G, contains the same words as those in tile 3 \ i W. 4, c. 7S, s. !>.'>, rcspcntinfr notice to bo given to tlic secretary of the (Traiul jin . " previous to the cnmniimccnicnt of tlie Assi/cs," and therefore tliis decision is iiiiiilicable to (he present liiw. VVitii respect to tiic otlior point, the sec- tion in question of the 3 &. 4 W. 4, e. 78, and the 133d section of the G &. 7 VV. 4, e. IIG, botii jirovide that presentments shall be traversed only at the Assizes at wliicli tiie presentments are made. Tiie construction, tlierefore, to be put upon the word "traversed," in conformity witii tiiis decision, nmst include not only tlic entry, but the trial, of the traverse. Sec tiie case of the Co. Down Presentment, unle, 20. IN the Matter of PRESENTMENTS for Officers of the GAOL • DROGHEDA. ill f2e of re the tried in the Where the magistrates and cess-payers at a Special Sessions under the 3 &. 4 W. 4, c. 78, had reduced the jjaoler's salary fram its former amount: Held, that the grand jury at the Assizes tbilowiiin- hmi power under the 7 G. 4, c. 74, s. 64, (iiotwith>tiinding the 3 iSL W. 4, c. 7d, s. ill,) to present for the Ml amount of the ibrmer salary. On the 18th of Februarv, l^Hfi. prrrious to the Droghe- da Assizes, Bi/sht, C. J., receir«d the following letter from Major ^^(mdward, inspector-general of prisons. 31 194 JEBB'S RESERVED CASES. [May 25 " My Lord, " I think it my duty to submit to your lordship that ' the salaries of the officers in the prison of Drogheda 'have been reduced at tlie Special Sessions to an ' amount which, as inspector-general of prisons, I must 'report as a totally inadequate remuneration for the ' services which are to be performed. The salary of 'the governor has always been extremely low, viz. ' £ 80 a year, late Irish currency. It appears from his ' report to mo that his salary is reduced to £ 50 a year, ' that sum being charged with the payment of one of ' the turnkeys, and that the salaries of the other turn- ' keys, which were so unusually low as £ 20 a year, are ' reduced to £ 10. It is quite unnecessary for me to occu- ' [*l!)r)] py your lordship's time with * any observations 'upon this reduction; if such reduction can be made, ' all improvement in prison discipline must be aban- ' doner! ; tlie salary proposed for the governor being ' totally inadequate to the support of an officer qualified ' for his office, while that proposed for the turnkeys ' could .scarcely be supposed to be sufficient to procure ' the services ot a person who could with safety be ' trusted within the uaol. I did hope that the salaries ' ot our officers were exempted from the provisions of 'the Grand Jury Act by the 62d section of that Act. ' I have the honor to be, &,c." On the 23d of February, at the Drogheda Assizes, the governor of the gaol handed to Bushe, C. J., the follow- ing letter : 1 183G.1 DROGHEDA PRESENTMENT, GAOLERS. 195 "To the Lords Justices of Assize for the North East " circuit of Ulster. The petition of Patrick M'Kenna, " governor of his majesty's Gaol at Drogheda, sheweth, *' that the cess-payers at the last Special Sessions held " under the 3 & 4 Wm. IV. c. 78, and contrary to the " wishes of the magistrates thereat assembled, reduced "the salary of petitioner from £73 \6s. lid. being the "lowest in Ireland, to £50, and that of the turnkeys "from £20 to £10 per annum, charging petitioner's " salary with the payment of one of them. That on " the assembling of the present Grand Jury, petitioner "addressed to them a memorial, complaining of the "gross injustice of the proceeding and praying their " interposition in this behalf, to which petitioner would " respectfully refer your lordships; that the Grand Jury " appeared most willing to administer the redress sought, " but not considering themselves warranted by the law " to alter the acts of the special * sessions agree- [*196] " ably to petitioner's prayer, they suspended their deci- "sion upon it, referring the case to your lordships' "di^,posal; for the truth whereof petitioner would most "respectfully refer to the foreman. May it therefore " please your lordships to give such advice and direc- " tion in the premises as to your lordships' wisdom and "justice shall seem meet. "PATRICK M'KENNA." l:5 i m •.'I ■:.1i - { ,1 kes, the (follow- In the address of the learned Chief Justice to the Grand Jury, he stated to them the substance of both r 196 JEBB'S RESERVED CASES. [May 25 I i, letters, and directed them to make two sets of present- ments, one for the sums which they tliought proper salaries for the governor and turnkeys of the gaol, and the other for the sums which had heen fixed at Sessions for these officers ; and for tho purpose of bringing all the facts before the Judges, his lordship enquired from the secretary of the Grand Jury as to what had passed at the sessions, and found that the sums now claimed by the officers for the half year ending with the Spring Assizes for 1836, were those which had been heretofore presented, and that the magistrates wished to continue them, but were out voted by the rate-payers, who from the small extent of the County, and the burdens lately imposed on it, in consequence of the cholera and other charges, considered it their duty to be as economical as possible. The particulars of the proceedings at the Sessions were stated as follows in a paper handed by the secretary of the Grand Jury to Bushe, C. J., at the close of the Assizes, " Lent Assizes, 1836, County of the town of Drogheda. " At a special Sessions held preparatory to these Assizes, " the governor of the gaol applied to the magistrates " and cess-payers for his salary, as required by the 3 & " [*197] 4 W. IV. *c. 78, s. 69, and the decision on his "application was 'approved; half yearly salary to be "'£25.' The turnkey also applied, and the decision "in his case also was 'approved; half yearly salary to " ' be £5.' The salary of the governor theretofore was < n of w C] th to sic un mc (« the pres 1836.] DROGHEDA PRESENTMENT, GAOLERS. 19T ilieda. each half year £36 I85. 6\d., and that of the turnkey £ 10; and these would have become due at the present Assizes. The Grand Jury have made the following presentments in connection with this case; — 'We 'present the sum of £36 IS5. bid. to be raised off this 'county, and paid to Patrick M^Kemia, governor of 'the Gaol, for half a year's salary, ending these As- ' sizes;' and a presentment for £25 for the like purp;>3e agreeably to the decision at Sessions. 'We present 'the sum of £ 10, to be raised off this county, and paid 'to the turnkeys for half a year's salary, ending these 'assizes;' and a presentment for £5, for the like pur- pose, agreeably to the decision at sessions." As it did not appear that the 62d and 69th sections of the 3 & 4 W. IV. c. 78, were easily reconcileable with the 64th sect, of the 7 G. IV. c. 74, the learned Chief Justice reserved for the consideration 01 the Judges the question, whether the Grand Jury were at liberty to present for the larger sum, notwithstanding the deci- sion at the special Sessions. Eleven Judges {Pen7iefather, B., being absent) unanimously decided in favour of the larger present- ment {a). ■ I (o) Tills decision will apply equally well to the present state of the law under the C &. 7 W. 4, c. 116 ; s. 124 of which refers to the 7 G. 4, c. 74, as regulating presentments to officers of gaols, and also requires application to the Special Sessions. •198 JEDB'S RESERVED CASES. [Miiy Sr. *TIIE KING V. STEPHEN ABBOTT DWYEIl. ■f • An indictment for Fcnding' to the Lord Licntcnant a fiilsc rccornmcndalinn oi per. sons convicted, charged tluit tlic prisoner forged liic si^jnuturc of " T. Kiiin;, Jituctor of T." Tlie evidence was, that tlic name forged by the pr'sonor was "T. Knox, Hector of T." The Jodgo having given leave to ani':,id, hy snt).sti. tutitig "Knnx" for "A'int'-;" .Held that there was no fatal variance on tlic ground of its appearing in evidence that T, Knox was in fact Rector of A., and that the.c was no such parish as that of T. Ildil, also, that proof of the doeunient which cotitained the false recommendation being in the prisoner's handwriting, and dated in the county in which the venue was laid, was sutKcient evidence of acts done in that county. To prove a conviction which took place at a former Assizes, the record thereof, and not the crown book, is the best evidence. The prisoner was tried before Johnson, J., at the Spring Assizes for the County of Tipperary, in 1836, upon an indictment which stated that John Hanny and Patrick Connors had pleaded guilty at Clonmel Summer Assizc«i in 1835 to an indictment charging them with the man- slaughter of Patrick Ryan, for which they were sen- tenced to transportation for seven years; that on the 13th of August in the same year, at Clonmel, a certain memorial, purporting to be a memorial on behalf of said John Hanny and Patrick Connors, and addressed to his Excellency the Lord Lieutenant, was prepared and written to be sent to his Excellency, praying a commu- tation of said sentence; that afterwards, at the same time and place, Stephen Drvyer, late of Toomavara, in said county, yeoman, knowing the premises, and intend- ing corruptly, &,c. to obstruct justice, and to deceive the Wi man- re sen- on the certain of said to his ed and ommu- e same mra, in intend- ive the 183C.] REX I). DWYER. 198 Lord Lieutenant, and to cause him to beheve that the said John Ilanny and Patrick Connors were deserving of such commutation, and that same was recommended by one Thomas King, clerk, rector of Toomaiiara in said county, and by the Rev. John Meagher, Roman Catholic priest of said parish, and that the prosecutors (naming them) believed said persons to be innocent, did forge and counterfeit at foot of said memorial certain recom- mendations, certificates, and declarations, in the words following: (here the recommendations were set out; the first dated the 13th of August, 1835, at Toomavara, *and purporting to be signed by Johi Meagher, [*199] P. P., of Toomavara, and by Thomas Knox, rector of Toomavara, and the other purporting to be signed by Ellen Ryan, Denis Mack, and John Shanahan, and pur- porting to be witnessed by John Meagher, P. P., of Toomavara, near Nenagh:) with intent that said forged certificates, recommendations, and declarations, should be presented to the Lord Lieutenant as true and genu- ine, with intent to procure a commutation' of said pun- ishment ; and in further prosecution of said intent did cause said niemorial with the said certificates and recommendations forged therein, to be sent to the said Lord Lieutenant. There was a second count diflTering from the first only in reciting the recommendations of the Rev. John Meagher, and the Rev. Thomas Knox, alone ; and there was also a second indictment, differing from the first by leaving out the fact that the memorial was sent to the Lord Lieutenant. ■ *1 . ! 1 I ' IW JEnn'S RESERVED CASES. [Mny 25 111 I i I The conviction of John Hanny and Patrick Connors, as set out in the indictments, was proved by James Car- michacl, deputy clerk of tiie crown, who produced the record thereof. Tlie memorial, recommendations, and the respective signatures, were distinctly proved to be the handwriting of the prisoner, and the admission of the prisoner to such effect was also proved. The seve- ral persons whose names appeared signed to the recom- mendations were produced, and respectively ] Moved that the signatures purporting to be theirs' were not written by them. This was the evidence on the part of the Crown. ■ I The indictments having in the reciting parts (as above set forth) stated the naiue of one of the persons recommending the commutation of sentence to be Tho- [*200] mas King, * clerk, rector of Toomavara, and in setting out the recommendation, stated it to be signed by Thomas Knox, clerk, rector of Toomavara; the coun- sel for the crown during the progress of the trial applied to the learned Judge to amend the indictment by striking out the name King, and inserting instead thereof the ji^vaQ Knox. The learned Judge did so accordingly;' and the following objections were taken by the counsel for the prisoner : 1st. Tliat by the said indictments he was charged with having forged as signature to a certificate annexed to a memorial, the name of '^Thomas King, rector of i! lyas ors, Jar- . the and to be on of scve- ;com- ithat rittcii )f the ts (as arsons B Tho- andin signed coun- pplied triking )of the lingly ; ' tounsel Iharged inexed ictor of 183G.} HEX V. PWYKR. 200 Toomamra,^'' and by the evidence it appeared that the name signed ^'y the certificate was ''Thomaa Kno.r, rector of Tomnardra;'^ and tliat sn-h ^^as n fatal vari- ance. 2d: That on the -svcrds Thomas KIik/ l)eiijg amended in pursuance of tlie statute in such case made and provided [a], and Thomas Knox substituted, still the addition laid in the indictment, of "rector of Tooma- vara,^^ was a fatal variance, said 'Vhomas Knox by tliu evidence appearing to be rector of "Anfiamcadle,^' and there being no such benefice as Toomavara, and that such indictment, if right at all in setting out such false addition, should have set it out as "purporting to be" rector of Toomavara, not as being so in reality, there being no such parish. 3d : That the record of the con- viction of Patrick Connors and John Ilannij should have been set out in the indictments, and that no proof what- ever was given or offered by the crown of the identity of such persons, or of their being in existence at the date of the memorial, or of the trial. 4th : That the venue " > laid in the County of Tipperanj, and no eviuv. "•-' given by the Crown of any act done by tlie prisoner in said * County, and no evidence [*201] given of the receipt by the Lord Lieutenant of the said memorial, or of its ever having been transmitted, uttered, or pul)lishcd by the prisoner or any other person in the said County or elsewhere. 5th : That the only evidence given of the conviction of the said Patrick Confiors and (a) y G. 4, c. 15. '* M II ■cf\ 32 301 JCDO'S RERBRVP.D CASES. [November 93 John Ilanny was Iho record thereof, whereas the proper and the legal evidence in the case would have been the crown book, and that the same should have been proved. The learned Judge left the case to the Jury on the evidence, and they convicted the prisoner ; but sentence was respited in order to submit the several objections to the Judges for their opinions. Eleven Judges {Penne/ather, B., being absent) unani- mously overruled all the objections, and held that the conviction was right. [»202] IN the Matter of a PETITION for Compensation for loss sustained by HIGHWAY ROBBERY. Held, that petitions for compensation for losses sustained by highway robbery were not within tlie 3 & 4 W. 4, c. 78, s. 70. Jeremiah Flynn, on the 13th of February, 1836, was robbed on the highway of £ 172 85. 6d., the property of his master, William Jackson. The latter prosecuted the robber to conviction, and preferred a petition for compensation under the 3 and 4 Wm. IV. c. 78, s. 70, hi 1836.] ROnnERY PETITION. Qoa which enacted, ** That in all cases of maliciously burn- •* ing, &c., or of the robbery, burning, taking, destroying, " or otherwise injuring, of any corn, turf, merchandize, " store-boat, barge, vessel, or other property," the Grand Jury, on a petition being presented to the Judge of Assize, and other preliminaries complied with, should present compensation for the damage done. The Grand Jury accordingly made the following presentment : •' We " present the sum of £ 172 8.?. Tk/. to compensate W. '■^Jackson for a loss sustained by highway robbery, " believing that we are constrained so to do by the 70th "section of the 3 and 4 Wm. IV. c. 78; but we should "have rejected it, had it not been under this belief " To be raised on the county at large." s\, 1 >, Foster, B., (the Judge of Assize,) suspended fiating this presentment until the opinion of the Judges should be obtained upon the question, whether the case of loss by highway robbery was within the 3 and 4 Wm. IV. c. 78, s. 70? Ly robbery |36, was perty of Lecuted Ition for Is, s. 70, Ten Judges {Moore, J., and Perrin, J., being absent) * were unanimously of opinion that the case of [*203] highway robbery was not within the statute, and that the presentment should be nilled (o). (a) This case, although it did not arise upon tlic present Grand Jury Act, lias been inserted in tiiis collection, because it appears to be vrry doubtful wlirthcr, and how far, some of the provisions of the 3 & 4 W. 4, c. 78, (the lale Grnud Jury Act,) may not be considered as still in force. With respect to the section in ques- ! 203 JEBB'S RESERVED CASES. [February 1 lion, (3 {; tutes than iu force. On the 16th day of July, 1833, he resigned the situation of surgeon to the county gaol, but retained that of surgeon to the infirmary. At the Sum- mer Assizes of 1833, the grand jury then assembled, unanimously appointed his son, John S. McDowell, to be surgeon to the gaol in his place, under the 7 G. IV. c. 74, s 72, and the usual salary was at each following assizes presented for him. On the 13th of November, 1836, Lr. Samuel McDowell also resigned the situation of surgeon to the county infirmary ; and in the month of December following, the governors of that infirmary held an election, and Dr. Young was appointed^. From the time that Dr. Samuel M'Dowell resigned the office of surgeon to the gaol in the year 1833, to the month of November, 1836, (during which time he continued sur- geon to the county infirmary) he never received any salary whatever from the county, but merely the £ 100 a year from government. [*218] By the 6 & 7 W. IV. c. 116, s. 86, it was enacted, " That the grand jury of any county may pre- " sent at each assizes a sum not exceeding £ 47, to be " raised off such county, and paid to the surgeon of the "infirmary thereof;" one of the requisites to be per- formed before such presentment can be made, being, " that such surgeon shall have given his attendance and " professional assistance, without any other or further " reward or fee, to the prisoners and others in the gaol " of the county to the infirmary of which he has been 1837.] MEDICAL OFFICERS, MONAGIIAN. 318 " appointed surgeon, if such gaol is situate within five •* miles of such infirmary." Immediately after his hav- ing been elected surgeon to the county infirmary, Dr. Young went to reside in the town of Monaghan, entered into the discharge of his duties as the surgeon of the infirmary, and offered his services and professional assistance to the prisoners in the gaol, as required by the provisions of the foregoing Acts. His services would not be accepted, and the governor of the gaol refused to permit him lo attend the prisoners, or give them his professional assistance. In consequence of this refusal Dr. Young addressed the following letter to the Governor and Board of Superintendence of the County of Mona- ghan gaol : (( (( was (< )re- (( ) be i( the (( por- if ing, tt and ti her 11 raol (( leen « Gentlemen, " Having attended on the 17th day of January inst. at the County of Monaghan gaol, to afford my profes- sional services and assistance to the prisoners and ' others within such county gaol, gratuitously and with- out fee or reward from them, pursuant to the duty ' imposed on me as surgeon to your County Infirmary, by the provisions of the several statutes upon that * subject, I hereby inform you, that admittance [*219] ' for the above purpose was refused on that occasion, and that I was prevented from rendering such professional assistance and services; I therefore request that you ' will have the goodness to give the necessary orders that I shall have free admittance for the above men- I liji i : I f > r '■>■ II I 8tl JEBB'S RESERVED CASES. [May 94 " tioned purpose. I will wait your answer, naming the " day when I may attend at the house of Mr. George " Moore, in Glasslough-street. " I have the honor to be, &c., "January 17, 1837. "A. R. Young, M.D." To this application the Board of Superintendence gave the following answer : •' At a meeting of the Board " of Superintendence of the county Monaghan Jail, — "Resolved, that having taken into consideration Dr. " Young* s application, the board consider that they have " not the power to make any appointment to any office, " unless in case of such office becoming vacant between two assizes, and that no such vacancy has in this case occurred; and therefore they are not authorized in "recognizing any other medical attendant than the " present. — Signed, &c." At the Spring Assizes for the Co. of Monaghan, in 1837, Dr. J. S. M'Dowell applied to the grand jury for the presentment of his salary of £ 37, half yearly, as usual, which had been regularly presented to him at every assizes since his appointment, and the grand jury allowed the presentment. Dr. Young also applied at the same assizes for a presentment for £47, being one- half of the salary of £94, to which he sought to be entitled under the 6 and 7 Wm. IV. c. 116, and the grand jury, under the 86th section (Dr. Young by his counsel, not seeking more), presented him a sum of £37. (( (( m 1837.] MEDICAIi OFFICEUS, MONAGIIAN. 2',»0» iW' * Torrens, J., respited both presentments, {i. e. Dr. Young's for tlie infirmary, and Dr. M'DowcWa for the gaol,) until lie should have an opportunity of having the opinion of the twelve Judges on the following points: — First, whether it was imperative on the grand jury to present a sum at each assizes, not exceeding X'47, to the surgeon of the county infirmary, provided he either attends or is willing to attend the prisoners in the gaol gratuitously, and without fee or reward? Secondly — Whether, if it were imperative on the grand jury to present a remuneration under the Statute to the Surgeon of the county infirmary, that presentment was to supersede the presentment which the surgeon to the gaol had applied for, or whether the county was to be burthened with the expense of two medical officers for the same establishment? Neither neglect nor insuflficient discharge of duty was ever imputed to either of the oflEicers in question since their respective appointments. On the part of Dr. McDowell, (who was a physician and surgeon,) it was insisted that he having been legally appointed, and having duly performed all the duties of the situation, the grand jury, under the provisions of the several Acts of Parliament, and in particular of the 7 G. IV. c. 74, s. 72; the schedule to 4 G. IV. c. 43; 6 and 7 Wm. IV. c. 116, ss. 110 & 124; and 3 & 4 Wm. IV. c. 92, s. 6; were bound to present from time to time for his salary of £ 37 half-yearly. On the part of Dr. Young, it was represented, that having complied with all the neces- 35 f! 890 JEUB'8 RESERVED CASES. [Mny 34 sary requisites reciuired by these Acts of Parliament, he had submitted his application for his salary as Surgeon of tlie county infirmary to the special sessions, held previous to the assizes; that his application was ap- proved of, and a presentment grounded upon it was [*22l] * made by the Grand Jury in his favor for jC37; and that the grand jury were hound to make a presentment in his favor as Surgeon to the county infir- mary, in obedience to the provisions of the several statutes before referred to; tiiat it appeared from these statutes, and especially from the preamble of the 54 G. III. c. 62, to have been the object of the legislature, to procure duly qualified persons who had been regularly educated for the profession of Surgeons, to fill the situation of Surgeons to the several county infirmaries throughout Ireland, and with that view to make it im- perative on the grand juries to present a suitable salary for them ; the Surgeons, as one of the considerations for such presentments, being obliged to give their attend- ance and professional assistance to the prisoners in the county gaol, without further fee or reward. Eleven Judges having met {Dohertij, C. J. C. Pleas, being absent) six of them (Joy, C. B., Moore, J., John- son, J., Pennefather, B., Burton, J., and Torrens, J.,) were of opinion, that the presentment to Dr. Young, the Surgeon of the infirmary, should be nilled; the remaining five Judges holding, that it should be fiated. All present held, that the presentment to Dr. M'Dowell, the Surgeon of the gaol, should be fiated. 1H37.] ROAD TRAVERSER, FERMANA<;II. 933« * IN tho Matter of Officers' Pecs upon ROAD TRAVERSES, County of FERMANAGH. The fro of 5». paid by tho pnrty travcrsintf to tlio crior upon the trial of n rond travcmo fur duinnircN, in a lawful one, ond iniiy lio received by biin iintwithKtiind- ini; tho G Sl 7 \V. I, c. 110, k. 110. liut it U not to be inchided in the verdict hb prirt of tho daiimircti MUHtiiinc^d. Qiirvre aa to tho le^ulity of ii fuu to the clerk of tlio crown under tho name circum^jtancc*. iJoHN- LRENS, to Dr. lilled; luld be to Dr. ed. At the Spring Assizes for the County of Fermanagh, in 1837, several traverses for the damages occasioned by making new or widening old roads wore tried before Bushe, C. J., on the last day of the Assizes; in the pro- gress of which trials his lordship was informed by tho crier that the traversers were each paying to him a fee of five shillings, being that to which previous to the 6 and 7 W. IV. c. 116, he had been entitled, and retinested directions as to how he should act. The clerk of the crown also stated that he considered himself entitled to a fee of £ 1 45. on each traverse, and that both his fee and the crier's were paid by the traversers, without ob- jection. In support of his own claim he observed, that the 133d section of the Act did not apply to traverses for damages, but only to general traverses, such as for inutility or illegality, which, as being of a public nature, the legislature in that section encourages and protects, not merely by depriving the clerk of the crown of his fees, in respect of such traverses, but by enacting that I 'I !i I 111 ill' ii:, HI ii I ■ S23 JEBB'S RESERVED CASES. [June 7 the costs payable by a traverser defeated upon trial shall be paid by the county, if the Court shall be of opinion that there was reasonable cause for the traverse : whereas in the following section, (the 134th,) regulating tra- verses for damages occasioned by making or widening roads, which are proceedings for compensation by an individual, there is no prohibition against the clerk of the crown taking fees. Secondly, he insisted that the 110th section of the late Act must be interpreted as the former Act of 4 G. IV. c. 43, which is not repealed by [*223] the late Act except so far as the Acts * are in- consistent with each other ; according to which statute the salaries, then for the first time given, were only in lieu of fees theretofore paid by presentment, which the fees in question never had been ; and he called the atten- tion of the Court to the 112th section, which recognizes the emoluments of his office as composed partly of fees, and also to the recent statute as having fixed the salary of the Clerk of the Crown at £230, British currency, which is less than what had been his salary under the 4 G. IV. c. 43. f! The learned Chief Justice did not consider himself at liberty to make any summary order as to the claims of the Clerk of the Crown, for what he considered as his lawful fees, which he was at liberty to assert in such a way as he might be advised; but with respect to the Crier, his lordship thought it the proper course (although no objection was made to the fee by the traversers) to 1837.] ROAD TRAVERSES, FERMANAGH. 223 take the opinion of the Judges, with a view to unifor- mity of practice. Tlie fees received on this occasion were deposited with the Registrar, to be returned, if not considered legal, to the several traversers whose names appeared on the crown hook. The discussion of this case having taken place in the presence of the jury, Bushe, C. J., desired them not to include in their verdicts the fees so paid by the tra- versers, as had formerly been in some counties the practice; upon which they stated that that had not been the practice in the county of Fermanagh, and stated that their verdicts should be calculated exclusive of fees. Y4:>^ imself Bums of as his such a to the though Ten Judges {Foster, B., being absent, Crampton, J., dissentiente,) were of opinion that the fee in question must * be considered a lawful one as long as [*224] the resolution of the Judges in the year 1824 remained unrescinded ; and that being lawful, it was not taken away by the 6 and 7 Wm. IV. c. 116, s. 110. Cramp- ton, J., held, that whether lawful or not, it was taken away. All present were unanimously of opinion that the fee could by no means be made a charge on the county, and ought never to be included by the jury in their verdict, as part of the damages sustained («). (a) Secus as to fees on burning petitions, at least under the luw picvinus to the 6 &, 7 \V. 1 ; see the cnse of the Armitsh liiirninrr Vctiliun, uiitr, IS'i. See ulso the case of tlie Clare Ruad Trarnse, post. 224 JEBB'S RESERVED CASES. [June IN the Matter of a Presentment to re] ray to Government sums due by a defaulting TllEASURER in the County of TYRONE. 11 if Where the treasurer of a county proved a defaulter to government in the repay- ment of advances made by the government to the county, (the amount of which had been presented by the grand jury, raised, and paid into the treasurer's hands,) and, after the government had sued him and liis sureties upon their recognizances, there still remained a balance due: Held, that the grand jury were not bound to present for the deficiency, under s. 145 of the 6 & 7 W. 4. e. 116, and that the Judge on their refusal was not bound to make an order under 8. 179 of that Act. Smnble, that the crown is not witliin s. 145 of the 6 & 7 W. 4, c. 116. At the Spring Assizes for the County of Tyrone in 1837, an application was made to Moore, J., to fiat a presentment, under the following circumstances. It appeared that from the Spring Assizes in 1826 to [*225] the * Spring Assizes in 1835, various present- ments were made by the Grand Juries of the County of Tyrone, for the repayment of advances of monies by government for various purposes to and for that county, under various headvS, viz. — constabulary police, building and repairs of the gaol of Omagh, bridewells, building and support of lunatic asylums, boards of health, and valuation of lands; and the several sums presented were levied and paid to the then treasurer, who had been elected on the 26th of June, 1826. It appeared, by an account furnished by the treasury in 1835, that large « !^ 1837.] PRESENTMENT, DEFAULTING TREASURER. 225 balances remained due to the government, unpaid by the treasurer, after giving credits for all payments made by him on the several accounts of advances under the heads before mentioned, viz. 1. — Constabulary Police, ... 2. — Gaol oi Omagh, 3. — Bridewells, 4. — Lunatic Asylums, 5. — Boards of Health, 6. — Valuation of Lands, ... . £5489 9 41 . 2415 4 10 37 . 2483 17 10| 619 14 Hi 208 1 7 £n253 8 7-' • 2 The treasurer, after his election, entered into security by recognizance as required by law, himself in £ 8000, and in two sureties in £4000 each. The government finding that payment of this large sum, or of any part of it, could not otherwise be procured, caused proceed- ings to be taken against the treasurer and his sureties on their recognizances, and the amount of the sureties' recognizstnces was recovered from them, viz. £4000 from each; but no sum could be levied as against the treasurer himself Writs of levai'i *were [*226] issued against him to the County of Ti/?'o?ie, and to the County and City of Dubli?i, wliere it was supposed he had property or might be found to be arrested ; on those several writs returns were made by the Sheriffs, that he was not to be found, and had no property that could be seized. After giving credit for the two sums 23G JEBB'S RESERVED CASES. [June of £ 4000 each paid by the sureties, there still appeared a balance due to the government on account of monies that ought to have been paid by the treasurer of £ 3253 55. Qd. The Treasurer retained his office until the Spring Assizes in 1836, when he resigned the treasurership, having previously remos^ed his family from the County of Tyrone. His insolvency was not doubted or denied ; and the 182d section of the 6 & 7 W. IV. c. 116, ac- tually recited his insolvency, and enacted that by reason thereof the Lords of the treasury were authorized to lend to the County the £ 8000 recovered from his sureties. Previous to the Spring Assizes in 1837, the govern- ment sent down the following certificate, which was laid before the grand jury, and upon which they were required to present the sura therein appearing due : (( ■I j I I " County of Tyrone. — Due to the Crown, upon pre- " sentments passed up to Spring Assizes, 1835, inclu- " sive. " Account of sums advanced out of consolidated fund, " under the provisions of the Acts specified below : " Constabulary, 3 G. IV. c. 103, ... £5489 9 9| " Lunatic Asylum, (building,) 57 G. III. "c. 106, andl&2G. IV. c. 33, ... 682 4 10 "Do. (Support,) do. do. ... 1801 9 9i Forward ... £7973 4 5 Tj coui ancel 1837.] PRESENTMENT, DEFAULTING TREASURER. 227* * Brought forward ... £7973 4 5 "Boards of Health, 58 G. III. c. 47, 619 14 111 "Valuation of lands, 7 G. IV. c. 62, 208 1 7 " Gaols and Bridewells, 50 G. III. c. 103; "7G. IV. c. 74, 2452 4 10 Total, " Deduct paid into the Exchequer by " Edward Tierney Esq., Crown Soli- "citor, as recovered from the late "Treasurer's sureties, on 7th No- "vember, 1836, £11253 5 91 8000 Remains due to the crown, £3253 5 91 " I hereby certify that the above advances were made pursuant to the Lord Lieutenant's directions, as herein particularized, on which there remains to be presented the sum of £3253 5s. 9|d, which has been included in presentments passed by the Grand Jury, and not paid; and as this amount still remains due to the Crown, the Grand Jury are hereby required to present accordingly. " Dubhn Castle, March 1, 1837. "T. Drummond." '■\i l4 10 I9 9| |4 5 The Grand Jury were also furnished with a full ac- count of all the presentments, on foot of which the bal- ance remained due; but after full discussion they in- 36 ;li i I r I I \m < 237 JEBB'S RESERVED CASES. [Juno formed Moore, J., that they declined making the pre- sentment, alleging amongst other things the following reasons: First, That the sum of £3253 55. did., claimed by government as a debt due by the late Treasurer of the county, to His Majesty's Treasury, was a sum com- posed of an aggregate of balances, said to have accrued prior to the year 1835, and that it was manifest there [*228] had been great remissness on * the part of the Crown in the enforcement of their claims at the proper periods, and also in giving receipts to Mr. Galhraith, for later periods, when demands upon him of an anterior date were unsatisfied. Secondly, that the Crown had received and appropriated to its own exclusive use the sum of £ 8000, being the full amount for which the late Treasurer passed his securities. Thirdly, that in the account furnished to them by the Crown Solicitor, and which by the certificate they were required to present, they discovered an error to the amount of £ 682 4*. lOd., which was one of the items; and that they had no doubt that other errors would be discovered on further exami- nation, and comparison of vouchers. The Grand Jury further requested permission to be heard by counsel, on the construction of the Statute 6 and 7 Wm. IV. c. 116, with respect to the authority of the Judge to order the presentment, upon the refusal of the Grand Jury. Counsel accordingly, on behalf of the Grand Jury, contended, that under the 179th section of the statute, the Judge had no power to order the sum claimed to be T ir Ell 183T.] PRESENTMENT, DEFAULTING TREASITRER. 228 levied, inasmuch as the several sums which constituted the aggregate of the sum claimed liad been all thcrcilo- fore regularly presented by the Grand Jury, raised oil' the county, and paid to the Treasurer; and that that section did not authorize him (the Judge,) to present or re-present where a presentment had been before already made; and that the Judge's authority extended no fur- ther than to enable him to make the order where no presentment had been before made. That he had not any thing to do with the payment, but merely with the presenting of the money ; and that it appeared from the accounts furnished by the Crown, that in every instance the several instalments had been actually *■ there- [*229] tofore ordered by the Judge to be levied whenever the grand jury had declined to present. Od., oubt :ami- ury on 116, r the It was further urged, that the 179th section was not in any case imperative upon the Judge, but left him a discretion ; and that as the crown had suffered the Trea- surer to incur so great an arrear without complaining to the grand jury or giving them notice of his default of payment, the Judge should not, in exercising a sound discretion, make the order required ; the more especially as under the Statute of 7 G. IV. c. 49, s. 8, the Crown had the power of proceeding against the Treasurer for a penalty of £50, and interest, at the rate of six per cent., in case he neglected to pay over the money due to government, for the space of twenty-one days after the commencement of each assizes. S29 JEBB'S RESERVED CASES. [June ij.^i With respect to the duty of the Grand Jury, it was insisted that they were not bound by the 145th section of the Act to present for any sum remaining unpaid by the insolvency of the Treasurer, but that they had like- wise a discretionary power either to do so or refuse ; for that in all cases where it was made imperative on the Grand Jury to present, the words, *' and they are hereby required," were contained in the enactment, as in sec- tions 90, 93, 94, 182, 183, of the same Statute; and that even supposing it were imperative on them to present for deficiencies, they should present for the entire and not merely for a portion of the sum deficient; and that there was an error in the account furnished, to the amount of £682 45. lOd., for which credit had been omitted in the certificate. On behalf of the Crown it was contended, that it was [*230] * the duty of the Grand Jury to examine the Treasurer's account at each assizes, and to require him to produce his receipts and vouchers for his payments; and if this had been done, and the Grand Jury had done their duty, no default could have arisen ; whereas it did not appear that the Grand Jury ever regularly examined or checked any account of their Treasurer. It was also urged that the 179th section of the Statute was impera- tive upon the Grand Jury to present the deficiency as certified; and in default of their doing so, upon the Judge to order the amount to be levied. iii '^ III 1838.] PRESENTMENT, DEFAULTING COLLECTOR. 230 The learned Judge reserved the questions upon the construction of the statute, and particularly of the 179th section, with reference to the preceding state of facts, for the consideration of the Judges. The Judges {Biishe, C. J., being absent, Richards, B., dissentiente) were of opinion that the Grand Jury were not bound at the instance of the Crown to make pre- sentments for the deficiencies of the insolvent Treasurer in any of the instances mentioned in this case; and that the Judge, upon their refusal to make the required pre- sentment, was not, under the 179th section of the Sta tute, bound to order the sums to be levied, as if presented. An opinion was also generally expressed (though no decision upon the point was pronounced,) that the Crown was not within the 145th section. IN the Matter of a Presentment to repay the TREA- [*231] SURER of the QUEEN'S COUNTY sums due by a COLLECTOR. defaulting A collector of grand jury cess having proved a defaulter, the grand jury sued the treasurer in the Court of Exchequer, wliere the Court gave judgment for tho defendant, holding that it was the duty of the grand jury, and not of the trea- surer, to take care that the collector should give sufficient security. The grand jury aflerwards made a presentment for the deficient sum, to be levied off the county, and paid to the treasurer, he having debited himself conditionally with that amount. Held, Uiat the presentment was legal. A SCIRE FACIAS had issued on a recognizance entered into by W. Kemmis Esq., on the 2d of Dec'r. 1823, as 8S1 JEBD'S RESERVED CASES. Ml': [February Treasurer of the Queen's County, in the sum of £3000, conditioned for the faithful discharge of the duties of the oirice of Treasurer. The defendant {Kemmis) pleaded general performance, and the plaintiff by his replication assigned four breaches, which in substance were, that the defendant, as such Treasurer, issued his warrant to one Philip Hurley, to levy a sum of £712 85. b\d, presented by the Grand Jury of said county, to be raised off the barony of Ballt/adams, although the said Hurley was not duly authorized as High Constable or Collector for said barony to levy or collect said sum, or to act as such High Constable or Collector in that behalf, and had not to the knowledge of the defendant, given the security in that behalf required by the statute ; and that although it was the duty of the Treasurer not to issue his warrant to any person not duly authorized, and who had not given such security, yet he issued his warrant to the said Philip Hurley, well knowing that at the time of the issuing thereof, or at any time afterwards, the said Philip Hurley was not duly authorized to act as High Constable or Collector for said barony, and had not entered into the proper security. There was then an averment that Hurley levied said sum, and absconded with it, whereby it was wholly lost. The defendant filed a rejoinder to each breach, stating in substance that the Grand Jury had not appointed any collector ; that Hurley was High Constable of the barony; that [*232] defendant issued his warrant to * him as such, 1838.] PRESENTMENT, DEFAULTING COLLECTOR. 233 by which he was authorized to levy said sum, and did levy same as he ought and lawfully mijjht do. The plaintiff demurred to each rejoinder, assigning for causes: First, that the rejoinder did not shew that Hurley had entered into the security required by the Statute to authorize him to collect. Secondly, that the rejoinder averred that Hurley was authorized by the Treasurer's warrant to collect, whereas in point of law he was not authorized to collect, unless he entered into such security. Thirdly, that the defendant wrvs not warranted in the due discharge of his duty as Trea- surer, to issue his warrant to Hurley, until or unless he had entered into such security. Fourthly, that the rejoinder did not traverse or deny that at the time defendant issued his warrant to Hurley, or at any time afterwards, he, the defendant, knew or had notice that Hurley was not authorized to ccllect or had not entered into such security. Fifthly, that it was not shewn by said rejoinder that before defendant issued his warrant, he caused Hurley to execute a bond and warrant to him as Treasurer, pursuant to the Statute, or enquired or ascertained whether he had executed such bond. Sixthly, that the rejoinder did not tender any certain or material issue in fact. This demurrer (the question raised by which chiefly turned upon the 36 G. III. c. 55, ss. 48, 49, 50, 52, and the 49 G. III. c. 84, ss. 24 & 15,) came on to be argued . ; . I S39 JEDD'S RESERVED CASES. [February before the Barons of the Exchequer, in Easter Term, 1837, when the Court, after hearing counsel on behalf of the Grand Jury and the Treasurer, gave judgment for the defendant, stating that in their opinion it was the duty of the Grand Jury to take care that sufficient [*233] security *was entered into by the collector before them, and that not having done so, it was by their default and not that of the Treasurer, that the loss had been sustained. The proceedings on the scire facias had been taken in consequence of an order made at the Summer As- sizes in 1834, by Johnson^ J., with the view of having the disputed question between the Grand Jury and the Treasurer, as to the liability of the Treasurer or the county for the loss sustained by Hurki/s default, de- cided by such legal proceeding against the Treasurer as the Grand Jury should be advised to take. And at the Summer Assizes in 1837, the Grand Jury being ap- prized of the decision of the Court of Exchequer, made a presentment for the sum of £661 125. 6d. to be levied off the county, to reimburse the Treasurer, who had debited himself conditionally with that sum, and syb- mitted it to Moore, J., (the Judge of Assize,) to fiat, if, in his judgment, the county was then to be charged ■with it. The learned Judge observing some difference of opinion on the subject, respited the presentment for the consideration of the Judges; the question reserved being, whether the judgment on the demurrer was con- I 1 1838.] DECISIONS ON RESERVED CASES. 933 elusive as to the non-liability of the Treasurer, and whether the Grand Jury had then the power under the 145th section of tlie G and 7 Wm. IV. c. IIG, to present the said sum of £001 Vis. Cul. to be raised off the county, to reimburse the Treasurer the sum for which he had debited himself for the default of Vhilip Unrleij. Ten Judges {Joy, C. B., and Pennefafher, B., being absent,) unanimously ruled that the presentment should be fiated, provided the Crown should disclaim ulterior proceedings in the Exchequer. IN the Matter of Decisions upon RESERVED CASES. [»231] the ap- nade vied had syb- at, if, rged •ence tfor rved con- \ Held, tliat tlio opinion of tlio majority of tho Judges upon cases reserved from circuit is binding upon tiio individual Judges, wliatcvor tlieir own opinion muy be. In consequence of a doubt which had been raised as to the extent to which an individual Judge, upon circuit, ought to consider himself bound by the opinion and decision of the majority of the Twelve Judges upon questions reserved from circuit for their consideration in the Queen's Bench Chamber; it was resolved at a meeting of the Judges, on the 11th of February, 1838, that the English practice upon this subject should be ascertained, and for this purpose Btishe, C. J., wrote to 37 Wit |M S34 JEBB'S RESERVED CASES. [April 30 Lord Denman, C. J., making the necessary inquiries. The answer of Lord Denman was as follows : " London, Feb. 13, 1S38. My Lord, " I am lionoured with your lordship's letter, inquiring whether the Judges of Eiujland, on their circuits, hold themselves bound by the opinion of the whole body of the Judges, on Crown cases reserved; and I have no difficulty in stating, that each of us does hold him- self so bound, whether or not his own opinion may have agreed with that of the majority, and whether or not the case may have been argued by counsel. " I have the honor to be, " Your lordship's faithful servant, " Denman. Rt. Hon. the Lord Chief Justice of Ireland.''^ Copies of this correspondence having been furnished to the other Judges, a second meeting took place upon [*235] the * 30th of April, 1838, when the question was proposed, " whether each of the Twelve Judges of Ire- " land ought to hold himself bound by the opinion of the " majority of the Judges, upon cases reserved from cir- " cuit, whether his own opinion agreed with the majority "or not?" !i:H All the Judges were present, and gave their opinions seriatim. Ten of them (Bushe, C. J., Doherty, C. J. "l! 1838.] PRESENTMENT, GOVERNMENT ADVANCES. 23.'> C. Pleas, Joy, C. B., Moore, J., Jotinson, J., Burton, J., Pexnefatiier, B., Torrens, J., Foster, B., and Crampton, J.,) resolved the question in the affirmative. Perrin, J., and Richards, B., held, that it should be answered in the negative [a). (a) For the circumstances which led to this discnssion, and the letter of liiiuhe, C J., see "Alcock's ubscrviitions on tlie nature and origin of the mcctinjfs of tlio Twelve Judges," pp. 1—4. (See ante, p. 1.) lajority Ipinions r, C. J. IN the Matter of an Application for PRESENTMENTS for an Arrear of £358 10s. 5d. due by the QUEEN'S COUNTY to the Government for Advances to BOARDS OF HEALTH in the Years 1819 & 1820. An application having been made by direction of the Lord Lieutenant to a grand jury to present the amount of arrears due to government 19 years before, for advances made by government for a Board of licaith; and the grand jury having refused, on account of the length of time which had elapsed: Held, timt the Judge of Assize was authorized to make an order for the amount, under s. 179 oftlie6&7\V. 4,0.116. At the Spring Assizes for the Queen's County, in 1S38, an application was made to the Grand Jury, by direc- tion of the Lord Lieutenant, to present for the sum of £353 105. 5d. being, as was stated, an arrear of advances made by the government in the years 1819 & 1820, for a Board of Health for the barony of Po)'tnahinch in thnt county, for fever * hospital purposes (a). That [*236j (a) Under the 58 G. 3, c. 47. 1; ;!',( A ^ii i SS!I 23G ■JEBB'S RESERVED CASES. [June 13 sum was admitted by the Grand Jury to be due, but the application having been refused on the ground that it would be a hardship on the present landholders, &c. to be called upon after a lapse of nearly twenty years, to contribute to the payment of a sum which might long since have been paid, but for the negligence of the government in not making application for the present- ment at a proper time; Tickell applied to the Court under the 6 & 7 W. IV. c. 116, s. 179, to make an order in lieu of a presentment, on the following grounds : — 1st, The refusal of the Grand Jury to present: 2dly, On proof of the appointment by the Lord Lieutenant, upon the 22d July, 1818, of the Board of Health for the barony oi Portnahinch ; 3dly, On proof of the advances made to the treasurer of the Board of Health, by pro- duction of his books, and a certified copy of a power of attorney from him to one Ridgervay, dated the 25th Nov. 1818, to receive advances from the treasury for the Board of Health, and a certified copy of the Lord Lieutenant's warrant to the treasury, dated 19th May, 1319, directing the issue of a sum of £60, on account of the Board of Health, with Riclgervai/s receipt for that sum : and 4thly, The Under Secretary's certificate of the sums advanced for the Board of Health, certifying that those advances had never been repaid, and that the foregoing sum still remained due to the Crown, and requiring the Grand Jury to present for it, under the 6 &7 W. IV. c. 116, s. 179. 1838.] PRESENTMENT, GOVERNMENT ADVANCES. 23G After hearing Tickell and several of the Grand Jury upon the question, Johnson, J., directed an order to be put upon * the crown-book, requiring the sum [*237] in question to be raised oflF the county at large, but at the same time respiting the levy, until the learned Judge should have an opportunity of conferring with the Twelve Judges on the subject. The order was as follows: — "Queen's County, Lent Assizes, 1838. It is "ordered by the Court, on motion of Mr. Tickell of " counsel for the Crown, that the sum of £ 353 IO5. 56?. " be raised off the county at large, and paid to the Trea- " surer, and by him paid over to the government, to " reimburse them for advances made on account of the " Board of Health for fever hospital purposes, for the " barony of Por^wa/imc/i, in the years 1819 & 1820. — " Respited by the Court, for the opinion of the Twelve " Judges." The appointment, by the Lord Lieutenant, of the Board of Health was in the following terms : — ill I ! II "By the Lord Lieutenant General and General Governor of Ireland. ''Talbot. "Whereas, by an Act passed in the 58th year of his " Majesty's reign (a), entitled 'An Act to establish fever (o) c. 47. 937 JEBB'S RESERVED CASES. [June 13 1 • I ill i| i^ f'k M '"hospitals, and to make other regulations for the relief "'of suffering poor, and for preventing the increase of " 'infectious fevers in Ireland,' it is enacted, that vvhen- •* ever in any city, town, or district, any fever or conta- "gious di temper shall appear, or be known to exist "amongst the poor inhabitants, it shall and may be " lawful for any one or more magistrates, upon the re- " quisition of five respectable householders, to convene " [*238] a * meeting of the magistrates and' house- " holders of such city, town or district, and of the "medical practitioners within the same, in order to " examine into the circumstances attending such fever " or contagious distemper, and the number of persons or " families being sufferers thereby ; and if it shall be the " opinion of such meeting, and of one or more magistrates " attending, that such fever or contagious distemper is " of a nature to require particular attention and circum- "spection, to prevent the increase of the contagion " thereof, it shall be lawful for two or more magistrates " authorized by such meeting to join in an application " to the Lord Lie'itenant, or other Governor or Govern- " ors of Ireland, for the time being, to appoint a Board " of Fsalth within and for such city, town, or district, " and that it shall be lawful for such Lord Lieutenant, " or other Chief Governor or Governors of Ireland, to " appoint such board accordingly, to consist of not more " than thirteen commissioners, to be selected from among " the Governors or members of the Corporation of any "Infirmary or Fever Hospital, or other hospital, and (J tneiJ ■^1 ne 13 3Uef 56 of hen- jtita- exist y be aere- avene louse- af the der to 1 fever sons or . be the ;istrates |mper is circutn- (ntagion Tistrates ication. Govern- a Board district, utenant, eland, to not more m among )n of any ital, and 1838.] PRESENTMENT, GOVERNMENT ADVANCES. 238 " from the parishioners and medical practitioners, to act ** within such city, town, or district, in such manner " and under such regulations as such Lord Lieutenant " or other Chief Governor or Governors of Ireland, or " his or their Chief Secretary shall from time to time " order, direct, and appoint. And whereas a meeting of "the magistrates and householders of the barony of " Portnahinch, in the Queen's County, and of the medi- " cal practitioners within the same, has been convened " to enquire into the circumstances attending a fever or " contagious distemper which has appeared among the ** poor inhabitants thereof; and it is the opinion of the "said meeting, that the said fever or contagious dis- " temper is of a nature to require particular attention " and circumspection, * to prevent the increase [*239] " of the contagion thereof, they have authorized Matthew ^^ Anke'ell, Esq., and , magistrates of the " said county, to make application to us, to appoint a " Board of Health within and for the said barony of " Portnahinch, in the Queen's County : We do therefore, " in pursuance of the power vested in us, as aforesaid, " hereby appoint the following persons to be a Board of " Health for the said barony of Portnahinch, in the said " Queen's County, accordingly, viz. &,c. "July 22d, 1818." Eleven Judges decided unanimously in favour of the order (a). (a) See s. 180 of the 6 &. 7 W. 4, c. 116, creating a limit of fivo years for pay. ment of future advances. u m JEBB'S RESERVED CASES. [November IN the Matter of a Presentment against tlie Senesclial of a MANOR COURT, County ANTRIM. Held, that a scncsclial of a manor eotirt, witliin tlio jurisdiction of which there was no local prison, was not lialilc undrr tlio 7 O. J, c. 74, ». 9!), to pay for the sup. port of prisoners in the county gaol under execution from the manor court; the senesclial not being' able 'o refuse executions, nor paid by fees upon them, iior ul lowed to direct the process to any one except the permanent bailiffs, who toere ■o paid. i'r At the Summer Assizes for the County oi Antrim, in 1838, the Grand Jury presented, under the 7 G. IV. c. 74, s. 99, that Arthur Gamble, Seneschal of the Manor of should pay to the proper officer for the County of Antrim £ 8, being the amount due for sup- porting certain prisoners in the County Gao], who had been taken in execution within the local jurisdiction and transferred to the County Gaol under the 96th section. The Marquis of Donegal was the lord of the manor, Arthur Gamble was the seneschal, and there were three bailiffs, permanent officers. — The bailiffs received fees on [*240] executions. — The seneschal was not at * hberty to refuse execution against the body, and had no juris- diction to direct the process to any one except to these officers. The seneschal opposed the fiating of this pre- sentment, complaining of the extreme hardship of being called on to pay out of his own pocket for these ex- penses. He had no fee upon executions. There never was any local prison witliin this jurisdiction, so that no At in 1838.] REGINA J). DONAGHER. S40 reference could be made to any practice antecedent to the 7 G. IV. with respect to the mode of maintaining prisoners, for the purpose of affording any illustration upon the question. Under these circumstances, Foster, B., (the Judge of Assize) reserved for the opinion of the iJudges the fol- lowing questions — 1st: Whether the presentment ought to be fiated ? — 2dly : In case it ought not, in what man- ner, if any, was the county to be paid? The Judges unanimously decided against the pre- sentment upon the first question; but did not consider themselves called upon to give any opinion upon the abstract question proposed by ^^e second. ' being 3se ex- never that no THE QUEEN v. FRANCIS DONAGHER. [*241] On the trial of an indictment for forginjjf an aceountabic receipt, it appeared tliat notice was served tm tliu 2Gtli of October, on tlie prisoner, to produce the docu- ment; the commission opened the fi)llo\ving day, but tlic trial did not take place until Nov. 2; and the receipt not being produced, a witness proved that the pri- Boner, witii wiiosc family he had been acquainted, had handed iiini the docu- ir.ent, and requested him to institute |)rocccdings upon it; this the witness refused to do, but kept the document, and delivered it to a third person to be shown to the party whose name was forged; after which the witness returned it to tlio prisoner. Tlie prisoner being convicted, Htld, thai the conviction was wrong, on the ground that the communication between the witness and tlio defendant was privileged. Seinble, that the notice was suflieient. At the sitting of the Commission for the City of Dahlin, in October, 1838, the prisoner was tried before Moore, J., 38 341 JEBD'S RESERVED CASES. [Mcceinbcr 4 II .III: on an indictment for forging an accountable receipt in these words: "I acknowledge to have received from ^^ Francis Donagher, the sum of one hundred and " thirty pounds, for which I promise to be accountable. '^Richard GriJJith.'^ The instrument not having been produced, after evidence had been given that the pri- soner had demanded the amount from Mr. Griffith, both verbally and by a letter, which was proved by Mr. Grijfiih to have been in the prisoner's handwriting, a notice was proved to have been served on the 26th of October upon the prisoner, who was then in Newgate, and a siibpoBna duces tecum on Mr. Croher, his attorney, to produce it on the trial. It was objected, that this notice was not given in sufficient time before the open- ing of the Commission (which took place on the 27th) to lay a foundation for letting in secondary evidence, but as the trial did not take place until the 2d of No- vember, the Court held there was reasonable time given by the notice to produce the document, and overruled the objection. i iji! I,' ;? Mr. Henry Major, an attorney, was then examined : he said, that about the 12th of June, 1838, the prisoner, with whose family he had some acquaintance, handed him the document, and requested of him to institute [*242] proceedings * against Mr. Griffith upon foot of it. Witness refused to be concerned for the prisoner; the prisoner left the document with witness, who after- wards delivered it to Mr. Lawler to be shown to Mr. ■«ll 1839.] REGINA t). DONAOIIEH. 242 Griffith, in order to inquire as to the genuineness of the document. A day or two after this the prisoner again applied to witness, and pressed him to be his attorney; but witness declined, in consequence of something •which had occurred ; he did not in any manner act or undertake to be his attorney, but having got the docu- ment from the prisoner, he returned it to him. On cross- examination, the witness said he had no doubt the pri- soner had come to him with a view to engajje him as his attorney, but he gave him no instructions, neither had he any communication with him about sending the document to be shown to Mr. Griffith, that being wit- ness's own act. 1 %: M ined: isoner, landed istitute foot of isoner ; o after- to Mr. Thomas Henry Larvler was then examined, who said, that he showed the document which he had received from Mr. Major to Mr. Griffith. To the admissibility of this evidence, two objections were taken : 1st, That Mr. Major should not be permit- ted to give evidence /especting a document which had come into his hands in the manner above stated : 2dly, That the communication from Mr. Larvler to Mr. Grif- fith, when he produced to him the document in ques- tion, took place without the authority of the prisoner, and was a violation of j professional confidence. The Court overruled these objections, and the case having gone to the jury upon the foregoing and other evidence, they found the prisoner guilty. \i li 'i I I I. 1':^ 343 JEDD'S RESERVED CASEH. [December 4 The learned Judge respited the sentence, for the pur- pose of obtaining the opinion of the Twelve Judges on [*'243] the * following ([ucstions: first, whether there was sufficient notice given to produce the instrument, so as to let in secondary evidence of its contents; and secondly, whether under all the circumstances before stated, what took place between the prisoner and Mr. Major was to be considered as a privileged communica- tion as between client and attorney, and the communi- cation between Mr. Lawler and Mr. Grijfith a breach of professional confidence. Ten Judges having met, (Doherttj, C. J. C. Pleas, and Richards, B., being absent,) seven of them (Woulfe, e. B., Johnson, J., Burton, J., Pennefatiier, B., Tor- RENS, J., P'osTER, B., and Perrin, J.,) were of opinion that the conviction was wrong, on the ground that what had taken place between the prisoner and Mr. Major was a privileged communication. The remaining three (Busi'iE, C. J., Moore, J., and Crampton, J.,) were of a contrary opinion. << i 1 J I,;. ^ ^1 183!).] REGINA V. FLANNERY. 343 THE QUEEN v, EDWARD FLANNERY. An indictment charj^in^ tliat the prisoner did " by threats nnd inenuccB threaten violence to the person of one J, (!., in tlie event of liin not taking back into liiH employment a certain mon whom he liad tlien lately before diHchar^rcri from bin cervice," Ih bad. Such an indictment, suppoKin); it were good, is not nupported by evidence tliat .T, G. was agent to another ])erson, and hired servuiitH to bo employed about the work of that person, wiiieli J. G. superintended; and that the discharge of one of tiiesc servants was tlic occasion of tho threats stated in the indictment. The prisoner was tried and found guilty at the Clonmel Summer Assizes, in 1837, before Crampton, J., upon the following indictment: — "The Jurors of our lady " the Queen upon their oath do say and present, that " Edward Flannertj, late of Boher, in the Co. of Tippe- " rary, yeoman, on the 19th of May, 1 Vict., with force " and arms, &c., at, &c., in the said county, did then "and there wilfully, maliciously, unlawfully, and by " threats and menaces, threaten violence * to the [*244] " person of one James Goiilding, a subject of our said lady the Queen, in the event of him the said James " Goidding not taking back into his employment a cer- " tain man whom he the said James Goidding had then " lately before discharged from his service, in contempt " of our said lady the Queen and her laws, against the " peace of our said lady the Queen, her crown and " dignity, and against the form of the statute in that " case made and provided." (a) (a) Semhle, the Whiteboy Act, 1.5 & 16 G. 3, c. 21, s. 3. << 4 vm Iff 944 JERira REMRRVI'.n (;A8ES. [January Hi * Part of tho cvidcnco was, tlmt Jronrs Coulding, tho prosecutor, \\as an agent to Mr. Bourne, a coacli owner, and resided at Kilniastulla, where Mr. Bourne had sta- bles and liorses; that Mr. Gouhling had the care of these stables and horses, and hired and discharged tho servants who were employed about them, and that he had lately discluu-gcd a stable-man named Houragan, who had been employed in tho stables at Kilmastulla. The charge was in other respects abundantly sustained by the evidence; but it was objected by Rolhston, the prisoner's counsel, 1st, That the indictment was insuffi- cient in law : and 2dly, that the proof varied from the charge, inasmuch as the employment from which Ilou- ragan had been discharged, was shewn to be that of Bourne, and not of Goulding, as stated by the indict- ment. Ten Judges [Burton, J., and Perrin, J., being absent) unanimously held that the indictment was bad. The majority also were of opinion that the evidence was insufficient. n [*245] THE QUEEN v. WILLIAM BARRAN and JOHN MURPHY. An indictment for stealing sheep is BU|)portcd by evidence of stealing ewes. At the Spring Assizes for the Northern Riding of the County of Tipperary, in 1839, at Nenagh, William 183!).] REfilNA t>. liARRAN. SI.1 Uiirran and John Murphy wcro tried and found guilty before liiishc, C. J., upon the following indictment; — "County of Tipperary, North Hiding, to wit. — The "jurors for our lady the Queen upon their oath do say " and present, that Laurence Murphy, late of, &,c., in " the County of Tipperary, William Jiarran, late of, "&c., and John Murphy, late of, &c., in the same Co. " of Tipperary, yeomen, on the 5th day of February, 2 " Vict., with force and arms, &c., at, &c., six sheep " each of the price of one pound sterling, of the goods " and property of one John Costello, then and there being " found, did then and there feloniously steal, take, and "drive away, against the peace of our said lady the " Queen, her crown and dignity, and contrary to the "form of the statute in that case made and provided." h |(r ewes. ■)i the Xilliam The same persons were at the same time found guilty upon another indictment for a similar offence on a dif- ferent day, which did not vary from the above, except that it only charged the stealing of two sheep. Upon the trial it appeared in evidence that all the sL;)ep in both indictments were ewes: upon which the counsel for the prisoners insisted that the evidence did not sup- port the indictment, and that the prisoners ought to bo acquitted; and relied upon Rex v. Cook, 1 Leach, 105; 2d East, P. Cr., 616; and other cases collected in Archb. Plead. & Ev. 192, 5th * edition (a). [*246] (a) Page 195, in 6th Ed. 'Hi 946 JEBB'S RESERVED CASES. [April 22 On the other hand the counsel for the crown contended that sheep being a generic term, included ewes, and also that the 9 G. IV. c. 55, s. 25, applying to Ireland, contained a proviso not to be found in the English Act, 7 and 8 G. IV. c. 29, s. 25; by reason of which, and of the different enumeration in the latter, the English cases did not govern those in question. The learned Chief Justice left the cases to the jury, who found the prisoners guilty on both indictments; and his lordship stated his intention to submit the objection to the indictments to the 12 Judges, and in case they should consider the indictments not to have been supported by the evidence, to recommend the convicts for a free pardon. Nine Judges ( Woulfe, C. B., Pennefather, B., and Foster, B., being absent) unanimously ruled that the conviction was good, on the authority of M^Culljfs case, 2 Lervin's C. C. 272. Sec also Rex v. Puddifoot, 1 Moo. 247, decided on the Act of 7 & 8 G. IV., wiiich uses the words " ram, ewe, sheep, or lamb," where the Court held tliat because of the specification in the statute, a count for stealing a sheep was not supported by proof of stealing an ewe. It is stated, also, in M'Cully's case, 2 Lewin's C. C. 272, tiiat "in Trin. T. 1838, a large majority of the Judges decided that Rex v. Pud. difont was bad law, and that the word " sheep" must be taken to include all sexes," Indeed, it would seem by the language of the statute, that the word eheep is op- posed to lamb, and has reference to age rather than to sex. It is said, in a note to M'Cully's case, that Puddifoot's case was decided by a majority of one; six judges being of opinion that the sex ought to be proved, and five judges being of a contrary opinion. 183!).] CO. CLARE PRESENTMENT, CORONERS. iill* fi *1N the Matter of a Prescntmciit for a MEDICAL WIT- NESS, at a Coroner's Inquest, Co. CLARE. Tlio mngistriilcs and ccss-iiaycrH at prcHnntincnt sessions liavc |)o\\cr to rcdiinc (ho sum ordered by a coroner to !)(■ paid to a medical witness, undei tiic (! & 7 W. 4, c. IIG, 8. 91); and tlie j;rand jury liavc no power to increase it uilerwards, so us to make it eonCormable to the coroner's order. The Jud^e at tlie assizes muHt fiat the prcsuntiiient as it came from sessions. A Coroner of the County of Clare granted an order to a medical witness who attended at an inquest, for the sum of £3, under the 99th section cf the 6 & 7 Wm. IV. c. 116, s. 99. The presentin<: Sessions reduced the sum to £2. The Grand Jury passed the present- ment for £2. Tlie medical gentleman insisted hefore Richards, B. (the Juilge of Assize), that the presenting Sessions or grand jury had no right to reduce the order of the Coroner from £3 to £2, and that the Grand Jury had no power to adopt the reduction made by the pre- senting Sessions, and pressed the learned Baron to direct the Grand Jury to pass a presentment for £ 3, the sum ordered by the Coroner. The 17th section of the Act appeared to his lordship to give the presenting Sessions a jurisdiction to reduce or modify the class of presentments therein referred to; but that section, it was contended, refers to presentments for county works, and to those presentments oidy that had been the subject of the prior sections of the Act. 39 4 i Jr 247 JEBB'S RESERVED CASES. [April 22 The learned Baron respited the presentment until the opinion of the Judges should be obtained upon the question ; and in reserving the case his lordship referred to the 3&th section, by which it is enacted, That from the passing of that Act it shall not be lav/ful for any- Grand Jury to make a presentment for any public vv^ork whatsoever, or for raising any money f" which an application shall not have been made ana approved of at Sessions either wholly or in part as therein before [*248] provided, &c.; and also to the 97th and *98th sections of the same Act, and the 7 Wm. IV. c. 2, s. 6, as possibly bearing on the subject. The questions reserved were as follows : — Have the magistrates and cess-payers at Sessions a right to reduce the amount of the Coroner's order? 2dly, Has the Grand Jury a power to increase the sum, so as to make it conformable to the Coroner's order? 3dly, If the presenting Sessions reduce the amount of the Coro- ner's order, and the grand jury pass the presentment as sent up to them from Sessions (fiS iii the present case), what is the Judge to do? Is he Ij prss the pre- sentment, or to reject it in toto ? A case similar in principle to the foregoing was brought before the learned Baron by Jackson, Serj., in the County of Co)% which his lordship also reserved. Nine Judges ( Woulfe, C. B., Pennefather, B., and 1839. REGINA I). MEANY. S4S Foster, B., being absent) unanimously held, 1st, that the Sessions may reduce the sum paid by the Coroner; 2dly, that the Grand Jury cannot increase it; and 3dly, that the Judge must pass it, as it came from Sessions. • THE QUEEN v. MATTHEW MEANY. [*249] Where a prisoner was convicted upon an indictment under the 51 G. 3, c. C3, s. 6, for an escape from prison, the former conviction (wliieh was proved by a ccrtifi.* cate from the crown office,) having been under the 1 Vic. c. 8,7, sa. 6 &, 10, and the sentence six months' imprisonment: //eW, that tlic conviction was bad, as the escape did not come witiiin tlic 51 G. 3, c. 63. At the Spring As.nzes for the City of Kilkenny, in 1839, Matthew Meant/ was tried before Crampton,3., on the following indictment, which was founded upon the 51 G. III. c. 63, s. 6:— ''County of the City of " Kilkenry, to wit. The jurors of our lady the Queen " upon their oath do say and present, that heretofore, " to wit at a general Quarter Sessions of the peace " holden at Kilkenny on the 26th day of April, in the 1 "Vict., before Richard Sullivan Esq., then and there " being Mayor of the City of Kilkenny, and William " Henry Bracken Esq., then and there being Recorder " of the said City of Kilkenny, and others their asso- ' ciates, justices of our said lady the Queen, assigned 249 JEBB'S RESERVED CASE8. [April 22 h i I' ill; m i i ii;i til • ift ' to keep the peace of our said lady the Queen in and ' for the said County of the City of Killiemiy, and also ' to hear and determine divers felonies, robberies, tres- ' passes, and other misdemeanors committed or done ' in the said Co. of the City of Kilkenny, Matthew Meany ' was in due form of law indicted, tried, and found guilty, ' for that he on the 29th day of March, in the first year * of the reign of our said lady the Queen, at, &c., did ' assault Martifi Proctor, with intent the money of the ' said Martifi Proctor from the person and against the ' will of the said Martin Proctor feloniously and violently ' to steal, take, and carry away, against the peace of our ' said lady the Queen, and contrary to the form of the 'statute in that case made and provided; and also that ' he the said Matthew Meany did at the time and parish ' aforesaid assault the said Martin Proctor; whereupon ' it was therefore considered by the said court there that ' [*250] the * said Matthew Meany should be impri- * soned for the term of six months and be kept to hard 'labour, and kept in solitary confinement for the last ' fortnight; as by a certificate of the record of the indict- 'ment and conviction doth more fully and at large 'appear. And the jurors aforesaid upon their oath 'aforesaid do further say and present that the said Matthew Meany being so as aforesaid tried and con- victed of the said offence and assault, was then and ' thereupon and in execution of his said judgment for the said offence and assault duly committed to the custody and keeping of Peter Duncan, who was then 183.1.] REGINA V. MEANY. 950 and there the gaoler of her said Majesty's gaol of the County of the City of Kilkemuj. And the jurors aforesaid upon their oath aforesaid do farther say and present, that the said Matthew Meany afterwards, and whilst he was so in custody of the said Peter Dwican, the gaoler and keeper of the said gaol as aforesaid, under and by virtue of the said judgment and sentence aforesaid, to wit, on the 31st day of July in the 2d year of the reign aforesaid, with force and arms, at Kilkenny aforesaid, in the County of the City of Kil- kenny aforesaid, against the will and without the license of the said Peter Duncan, the gaoler and keeper of the said gaol as aforesaid, unlawfully, wick- edly, violently, and feloniously did break the gaol of the said County of the City of Kilkenny, by breaking the door and window of the said gaol; by means whereof he the said Matthew Meany did then and there escape and go at large out of the said gaol and from the custody of the said Peter Duncan, the keeper and gaoler of the said gaol of Kilkenny in the County of the City of Kilkenny aforesaid, to the great hin- drance and obstruction of justice, in contempt of our said lady the Queen and her laws, to the evil example, &c." »^ * The evidence was as follows: — Peter Dun- [*251] can, the gaoler of the City, swore that ',he prisoner, who was in his custody under a conviction at the Quarter Sessions, broke gaol and escaped by breaking the door 351 JEBB'S RESERVED CASES. [April 22 and window of the said gaol, by means whereof he the said Matllicw Meany did then and there escape and go at large out of the said gaol and from the custody of the said Peter Dimcati, the keeper and gaoler of the said gaol, &c. The following certificate of the clerk of the peace was then produced and proved. " I certify that " at a general Quarter Sessions held in and for said " City the 2Gth of April, 183S, before Richard Sullivan "Esq. (Mayor), William H. Bracken Esq., Recorder, " &c., Matthew Meany was indicted for that he on the "29th of March, 1st Vict., at, &c., feloniously did " assault Martin Proctor, with intent the monies of the " said Martin from the person and against the will of " said Martin feloniously and violently to steal, take, and "carry away, against the peace and statute; and was " also indicted for a common assault on said Martin. — " 27th April. Tried and found guilty, and sentenced "to be imprisoned for six months, and kept to hard " labour, and to be kept in solitary confinement for the "last fortnight. Patrick Walters, ''Clerk of the Peace." The indictment upon which this conviction took place was then proved, and it was as follows: — "County of " the City of Kilkenny to wit : The jurors for our said " lady the Queen upon their oath do say and present " that Matthew Meany, now a prisoner in the gaol of " said City, on the 29th day of March, in the 1st Vict., 183!).] REGINA V. MEANY. 951 " with force and arms, &c., at, &c., in and upon one " Martin Proctor, in the peace of God and of our said " [*252] lady the Queen then * and there being, febni- ** ously did make an assault, with intent the monies of the " said Martin Proctor from the person and against the " will of him the said Martin Proctor then and there felo- " niously and violently to steal, take, and carry away, ** against the form of the statute in such case made and " provided, and against the peace of our said lady the " Queen, her crown and dignity. And the jurors aforesaid " upon their oath aforesaid do further present, that the " said Matthew Meany on the said 29th day of March, in *' the year aforesaid, with force and arms at, &c., in and " upon the said Martin Proctor, in the peace of our said "lady the Queen then and there being, did make an " assault, and him the said Martin Proctor did then and " there beat, wound, and ill-treat, and other wrongs to "the said Martin, then and there did, to the great " damage of the said Martin, and against the peace of " our said lady the Queen, her crown and dignity." place tyof said esent iol of Vict., The conviction upon this indictment was under the 1 Vict. c. 87, ss. 6, 10, by which the offence of assault- ing with intent to rob is made punishable by imprison- ment not exceeding three years, with or without hard labour, and with or without solitary confinement. The prisoner was found guilty, but the learned Judge doubting that the certificate of the prisoner's conviction JEBB'S RESERVED CASES. [April 23 was under the circumstances admissible evidence, — and also doubting that the indictment, which was founded upon the statute of the 51 Geo. III. c. 63, s. 6, was sus- tained by the evidence — refrained from passing any sen- tence, reserving the points for the consideration of the Twelve Judges. His lordship, in reserving the case, sub- mitted the following observations to the consideration of [*253] the Judges. — The * conviction of the prisoner at the Mayor's Court in Kilkenny, in April 1839, was under the 1 Vicl. c. 87, ss. 6 and 10, by which the offence of assaultmg with intent to rob is made punish- able by imprisonment not exceeding three years; with or without hard labour or solitary confinement. He was sentenced to six months' imprisonment, hard labour and solitary confinement; he escaped from custody under this sentence in July, 1838, and he was indicted at the Assizes for the escape, Jiot on the 1 & 2 W. IV. c. 44, s. 4, but on the 51 G. III. c. 63, s. 6. That Act {a) is applicable only to cases in which the offence, the sub- ject of enactment, is a transportable offence ; in such cases the court may substitute imprisonment with hard labour; and in such cases an escape is subject to the penalties of s. 6, and an easy mode of proving the pre- vious conviction is allowed by s. 7. But Meam/s ori- ginal offence, was committed after the iVict. c. 87, came into operation, viz. after the 1st of October, 1837; and it was therefore not a transportable offence, and conse- (ffl) Vide 8. 2. for 1839,J COUNTY PRINTING. 8sa qiiently, in the opinion of the learned Judge, the 51 G. in. c. 63, did not apply to his escape at all. Nine Judges (Woulfe, C. B., Pennrfather, B., and Foster, B., being absent), unanimously held that the conviction was bad, on the ground that the prisoner's escape was not such an esc^)e as came within the pro- visions of the statute (51 G. III. c. 63) upon which the indictment was founded. For the same reason they held that the mode of proving the former conviction permitted by the same statute, (viz. the certificate) could not be allowed in this case {b). ih) If the case had come wiU.in the 9 G. 4, c. 54, s. 21, the certificate would have been idinissible. I IN the Matter of a Presentment for PRINTING, County [*254] TIPPERARY. A contract to perform the printing work of a county for one year, is warranted by the 6&7W.4, c. 1J6, S.47. An application for the printing work of the county of Tipperary, for the year 1839, was made at, and approved of by, the proper Presentment Sessions, the calculated amount being above £100, and the usual advertisement for sealed tenders and proposals to be opened by the grand jury at the following Assizes was published. Accordingly, several sealed tenders and proposals were 40 ;i 9J4 JEBD'S RESERVE'i) CASES. [May 1 sent in and opened by the Grand Jury; and the propo- sal of Mr. Vpton to do the county printing work for one whole year, for the sum of X" 020, wa.i accepted, and the presentment for that purpose came before CramjUon, J., at the Spring Assizes of Clonmel, in 1839, to be fiatcd. It was objected, that the contract should be from assizes to assizes only, and not for one whole year, as the contract in question was ; and the learned Judge directed the presentment to be fiated, subject to the opi- nion of the Judges on that point (a). al. Ten Judges [Penne father, B., and Richards, B., being absent) unanimously decided in favour of annual con- tracts. (n) Sco 6 & 7 W, 4, 88. 47, 131. [*355] THE QUEEN v. PETER DENENY. Cows are not chattels within the meaning of the 9 C. 4, c. 55, ss. 40, 41, 43, Peter Deneny was tried before Perrin, J., at the Spring Assizes of Roscommon in 1839, upon an indict- ment which charged, in the first count, that he on the 15th of May, 7 W. IV., at Kilmore, being then and there employed as a herd to one James Coyne, by virtue of 183!); REOINA V. DENENY. m 43. such employment did take into his possession two cows, price £ 10 eacli, for and in the name of said James Coyne, and which cows he, the said Peter Dencnij, did then and there feloniously embezzle, and the same feloniously did steal, take and drive away, against the peace and statute. The second count was the same as the first, stating the prisoner to he a servant. The third count stated, that he, the said Peter Denemj, feloniously did emhezzle, and steal, take, and drive away, against peace and statute. Upon the trial, the first witness, James Coijne, de- posed, that the prisoner had a large quantity of cows and sheep belonging to witness in his charge as herd, which witness gave him charge of on the 15th of May. On the 20th, witness missed two cows and five sheep; the prisoner had absconded, and was not to be found. Witness saw the cows afterwards, one on the 25th of June, the other on the 4th of July, in possession of Mr. Stafford. AVitness had not authorized the prisoner to dispose of them, and the prisoner never returned them as sold. On being cross-examined, the witness said that the prisoner had been seven years in his employment as herd, and that he did consider him at one time a man of good character. *The second witness, Michael Flanagan, [*256] stated, that he was in Mr. Stafford's employment; he bought two cows from the prisoner in the fair of Strokes- 8S6 JEDD'S RESERVED CASES. [Juno 4 town, on 15th of May, for Mr. Staffwd; the prisoner told witness, tliat one was his master's, and one his own; witness paid for them X'8 15a-., and X'8 5.v. The third witness, Michael Flanagan, jun., said, that he was present when the cows were sold ; these were the cows which Mr. Coyne saw and claimed on the '25th of June, and 4th of July. The fourth witness, John Stafford, said, that he was present at the sale of the cows, and gave the £ 17 to Flanagan to pay for them, a-^d saw the money paid. m MB'''! BlaTieney, for the prisoner, objected that this was not a case within the 9 G. IV. c. 55, ss. 40, 41, 42, cows not being chattels within the meaning of that statute. The learned Judge left the case to the jury, who found the prisoner guilty. But he respited sentence, and re- served tht question for the consideration of the Judges. Ten Judges having met ( Woulfe, C. B., and Penne- father, B., being absent), all, except Foster, B., and Richards, B., held that the conviction was bad. Those two Judges held that it was good. ifl;»9. REOINA V. bRADY. 337» *TnE (iUEEN V. JOHN BllADY and MICHAEL COOiNEV. An indictment cliarfrcd tlio priHoncr witli Nliootinj; at M. D,, witli intent to maim and ditiubio liiiii, Ntiitin^ in one count tliiit the |i;un wuh iondud with )riiii|io\vder and leaden Nlii;rN, and in nnntliur count with ;riin|)owdur and leaden HJiut. Tliero WOH no evidence that any ball, hIujj, or shot hud been found, or any wound in. flictcd; nor wuh it hIiowh in what manner the gun hud l)ccn loaded. The jndjrc told the jury it was not neccsHury that they NJiould bo HUtiMtied that the (run wuh loaded with nluga or shut, but that if they believed it wan loaded with any Hub- stance calculutod to act liko slugs or shot, it was sufl'icient ; and ho Icfl the cnso to tho jury, to say upim the circumstantial evidence whether it was so loaded. The jury found tlic j>i isoncr guilty. Held, tliat tho conviction was right. At the Spring Assizes for the County of Cavan, in 1839, John Brady was tried before Foster, B., on the following indictment : — "The jurors for our Lady the " Queen upon their oath present, that John Brady, late " of Lara, in the county of Cavan, labourer, and Michael ** Cooney, late of the same place, labourer, not having " the fear of God before their eyes, but being moved and " seduced by the instigation of the devil, on the 22d day " of July, 2 Vict., with force and arms, at Aughagohrick " in the county of Cavan, aforesaid, in and upon one " Marcus Gervaise Beresford, in the peace r>f God and " of our said Lady the Queen then and there being, " feloniously, maliciously, and unlawfully did make an " assault, and that the said John Brady, with a certain " gun, of the value of 55., then and there loaded with ** gunpowder and leaden slugs, which gun the said John i 257 JEBB'S RESERVED CASES. [June 4 H ii i A ' Brady in both his hands then and there had and held, ' feloniously, wilfully, maliciously, and unlawfully, did ' shoot at the said Marcus Gervaise Beresford^ with in- ' tent, in so doing, and by means thereof, to maim him ' the said Marcus Gervaise Bercsford; and that the said ' Michael Cooneij then and there wilfully, maliciously, * unlawfully, and feloniously was present, aiding, abet- 'ting, counselling, and commanding the said John ' Brady the felony aforesaid, in maniior and form afore- ' said to do and commit, against the peace of our said ' Lady the Queen, her Crown and Dignity, and con- ' [*258] trary to the form of the * statute in that case ' made and provided." There was a second count, as follows: — "And the jurors aforesaid upon their oath ' aforesaid do further present that the said John Brady ^ ' being such evil disposed person as aforesaid, on the ' said 22d day of July, in the second year of the reign ' of our said Lady the Queen, with force and arms at, * &c., in and upon the said Marcus Gervaise Beresford, ' did feloniously, wilfully, maliciously, and unlawfully ' make an assault, and that the said Joh?i Brady, with a 'certain gun, of the value of 5s., then and there loaded ' with gunpowder and leaden shot, which gun the said ' John Brady in both his hands held, feloniously, wil- ' fully, maliciously, and unlawfully, did shoot at the 'said Marcus Gervaise Beresford, with intent, in so ' doing, and by means thereof, to disable the said Mar- ^ cus Gervaise Beresford, and that the said Michael ' Cooney then and there feloniously,, wilfully, mali- Pl:! Ii: Ii 1833. REGINA ». BRADY. 258 *' cioiisly, and unlawfully, was present, aiding, abetting, " counselling, and commanding the said John Bradij the " felony last aforesaid in manner and form aforesaid to "do and commit, against peace and statute." There were other counts laying the intent differently, but all laying the gun to be loaded in the manner before described. When the case for the Crown was closed, counsel for the prisoner Brady submitted, that he was entitled to an acquittal, on the ground that no ball, slug, or shot, had been found, no wound inflicted, nor any evidence given as to the mode in which the gun had been loaded, or of its having been loaded with any thing beyond gun- powder, and they cited the cases of Rex v. WJiitleij, 1 Lewin, 123; and Rex v. Hughes, *5 C. & P. [*259] 12G (24 E. G. L. 241). The learned Baron, upon this, conferred with Pennefmher, B., who was joined with him in the Commission ; and it appeared to them, with respect to the case of Rex v. Hughes, in 5 C. & P., that in that case two shots having been fired from two pis- tols, but the indictment having relation to only one of those pistols, and to one of those shots, a doubt was raised by the surgeon's evidence whether the only pistol which was in question in that indictment, had been loaded with any thing beyond wadding; and that it would appear from what BoIIand, B., said, that if the question had arisen with respect to the other pistol, he mi 259 JEBB'S RESERVED CASES. [June 4 would have left it (on a very slight circumstance) to the jury to say, whether it had been loaded with ball. The learned Judges came to the conclusion, that the proper course would be that Foster, B., should leave it to the jury to say upon the circumstantial evidence, whether the gun had been loaded in such a manner as to fit it foir maiming or disabling ; and that if they were satisfied of that, the mode of loading the gun stated in the in- dictment would, so far as the loading of the gun was concerned, justify a conviction. The learned Baron accordingly told the jury, that unless they should be satisfied that the gun was loaded in such a manner as to be fitted for maiming or disabling, whatever might be their views of the other parts of the case, they must acquit the prisoner; but he told them that in his opinion it was not necessary that they should be satisfied that the gun was loaded with either leaden slugs or leaden shot, for that if they believed it was loaded with any substance or substances usually employed in loading fire-arms, and calculated to act like leaden slugs or leaden shot in maiming or disabling, the description in the indictment was sufficiently ^'ejusdem generis'^ to [|*260] sustain a conviction. He then told * them that there was no direct evidence of the manner in which the gun was loaded ; no ball was found, and no wound inflicted, and there was no witness who had seen it loaded ; but his lordship added that, in the absence of direct proof, the mode of loading of the gun was, in his opinion, like any other fact, capable of being inferred 1839. REGINA t). BRADY. 360 from circumstantial evidence, if that evidence were per- fectly satisfactory to the jury; and he submitted to them the following circumstances existing in this case. — First; The Rev, M. G. Beresford had sworn he was well accustomed to the use of fire-arms, and that he was within ten yards of the man when the shot was fired, and he said the report v^as loud, and proceeded from a gun that appeared to be heavily loaded. Secondly; The place was on the road by which Mr. Beresford ordinarily passed to the church where he usually offici- ated, and the time was a quarter of an hour before the commencement of Divine service. Thirdly; It was proved that the man who fired the shot, together with another man, each of whom had a gun, was lying con- cealed in the field by the road-side at the back of a hedge from whence the shot was fired, and had been lying there for about half an hour before the coming up of Mr. Bercxford in his gig. Fourthly; Upon a car coming up immediately before Mr. Beresford' s gig, the man who afterwards fired the shot stood up, looked over the hedge at the car, and lay down again after it had passed. Fifthly; That on Mr. Beresford' s coming up, this man rose, looked over the hedge, and stepped to a gate whiph was close to where he was lying, and took aim at Mr. Beresford and fired. Sixthly; That both men immediately fled across the fields after the shot was fired. Seventhly; That being pursued, the man wlio had fired, stopped, reloaded his * gun, pre- [*261] 41 if ill I 261 JEBD'S RESERVED CASES. [June 4 m sented it at his pursuer, and told him that unless he would go back he would lay him down. The jury found the prisoner guilty, but the learned Baron respited sentence in order to obtain the opinion of the Judges upon the foregoing questions; and in reserving the case he referred their lordships to the following authorities; 1 Leach, 247; 1 Hawk. P. C, c. 15, s. 9; Russ. & Ry. 95; 1 Lewin, 123, 126; 6 Carr. & P. 126 (24 E. C. L. 241); Deacon's C. L. 834. Ten Judges being present {ahsentihus Wonlfe, C. B., and Pennefather, B.,) eight of them (Bushe, C. J., DoHERTY, C. J. C. Pleas, Johnson, J., Burton, J., ToRRENs, J., Foster, B., Crampton, J., and Richards, B.,) held that the conviction was right. — Perrin, J., and Ball, J., held that it was wrong. See ante, Rex v. Shannon, 209, where the indictment charged an afleinp- to poison by mixing a certain poison, to wit, sugar of lead, with flour. The jury found tiio prisoner guilty of liaving administered the poison, but were unable to Bay what precise sort of poison had been used. Conviction held good. See Roa> coc's Crim. £vid. p. 90, Sharswood's Ed. Phil. 1840. i 1839.] REGINA V. GAYNOR. 262« *THE QUEEN v. LUKE GAYNOR. Indictment for perjury committed upon a trial for burglary. The perjury assigned was, that the prisoner swore upon that trial that ho had not heard a certain conversation, whereas in fact he had heard it. To support the charge of per- jury, informations were proved (by the evidence of one of the magistrates who took them,) in which the jirisoner swore he had heard the conversation; and tico witnesses, one of whom was the same magistrate who proved the informations, proved that the prisoner had sworn at the trial that he hud not heard it. Held, that a conviction on this evidence was wronw. The prisoner was tried at the Spring Assizes for the Co. of Meath, in 1839, before Torrens, J., upon a charge of perjury. The indictment, after reciting the trial of James Carolan, Patrick Geoghegan, and Peter Duff, for burglary, at the Summer Assizes at Trim., in 1838, at which time the perjury was alleged to have been com- mitted, proceeded thus:— "And the jurors aforesaid, " &c., do -3y and presciit, that upon the said trial of " the said James Carolan, &c., it then and there became " and was material to inquire whether he the said Luke " Gay nor on the night mentioned in the said indictment, "to wit, on the night of the said 2d day of April, in the " said first year of the reign aforesaid, heard any talk " between the said Patrick Geoghegan and Peter Duff, " charged in said indictment, about the linen that was "taken from the said M. ConnelVs house that night, " (meaning the night of the said 2d day of April in " the year aforesaid) and also whether he the said Luke " Gaynor saw any linen divided that night in Carolan' s S62 JEBB'S RESERVED CASES, [June 4 m I! < " house (meaning the house of the said James Carolan "so charged in the said indictment); and the jurors " aforesaid upon their oath aforesaid do further say and "present, that the said Luke Gaynor being so sworn "as aforesaid, not having the fear of God before his "eyes, but being moved and seduced by the instigation " of the devil, and contriving and intending that the said " James Carolan, Patrick Geoghegan, and Peter Duff, " should be unjustly acquitted of the said burglary and " felony so charged in said indictment, then and there " on the said trial, upon his oath aforesaid, falsely, cor- " [*263] ruptly, knowingly, wilfully, aid * maliciously, " before the said jurors so sworn as aforesaid, and before " the said John Dpherty, and William Johnson, justices " and commissioners as aforesaid, did depose, swear, and "give in evidence amongst other things in substance " and to the effect following, that is to say, that he the " said Luke Gaynor did not on the night mentioned in " the said indictment, to wit, on the night of the said " 2d day of April, in the year aforesaid, hear any talk " between the said Patrick Geoghegan and Peter Diiff " about the linen that was taken from the said Matthew " ConneU's house that night, and tliat he the said Luke " Gaynor never said or swore that he the said Luke " Gaynor heard the said Patrick Geoghegan and Peter " Duff talk about the linen that night, meaning the " night of the said 2d day of April, in the year afore- " said, and that he the said Luke Gaynor did not see " any linen divided that night in Carolan's house 1830] REGINA V. GAYNOR. 2G3 cor- (meaning the house of James Carolan charged in said indictment); wliereas in truth and in fact the said Luke Gatjnor on the night mentioned in the said indictment, to wit, the night of the said 2d day of April, did hear talk between the said Patrick Geoghe- gan and Peter Duff about the linen that was taken from the said Matthew ConnelVs house, and whereas in truth and in fact the said Lulie Gaynor had there- tofore and previously to the said trial as aforesaid, to wit, on the 11th day of April in the said first year of the reign aforesaid, before George Despard, George M^ Adams, and George Francis Blackhurne, Esc^rs., three of her Majesty's justices of the peace in and for the County of Meath, (they the said George Despard, George M' Adams, and George Francis Blackburne then and there having sufficient power and authority to administer an oath in that behalf,) positively said and swore that lie the said Luke Gaynor did hear * the said Patrick Geoghegan and Peter Duff [*264] talk about the linen that night (meaning, &-c.), and * whereas in truth and in fact he the said Luke Gaynor 'did see linen divided that night (meaning, &c.), in Carolan' s house, (meaning, &c.); and so the jurors ' aforesaid upon their oath aforesaid do further say and 'present that the said Luke Gaynor, at the court of * Assizes Sessions of Oyer and Terminer and general ' gaol delivery of our said Lady the Queen, holden at ' Trim, in and for the County of Meath aforesaid, before the said John Doherty and William Johnson, then and m I SG4 JEBB'S RESERVED CASES. [Juau 4 •• there being such justices and commissioners as afore- " said, and then and there having sufficient and compe- *' tent power and authority to administer said oath to " the said Luke Gaynor in manner and form aforesaid, " wilfully, wickedly, and corruptly did commit wilful "and corrupt perjury," &c. On the part of the prosecution, the first witness was George A. Pollock, Esq. deputy clerk of the crown, who proved the record of the proceedings in the case of the Queen v. Carolan r^nd others, and that the prisoners were acquitted. 1 he second witness was George Des- pard, Esq., stipendiary magistrate for the County of Meath; who stated that he knew the prisoner Luke Gaynor, and identified him; remembered his having sworn informations before him and other magistrates respecting a burglary and robbery which had been committed at the house of Mattherv Connell; looked at the informations which were shown to him, and stated that he read those informations to the prisoner, who perfectly understood them; he proved his own hand- writing and the prisoner's mark to the informations; he was present at the trial of Carolan and others at the summer Assizes in 1838, and heard the prisoner Luke [*265] * Gaynor examined, when he swore "That he "never heard any talk between Geoghegan and Di/Jf " about the linen stolen from Mattherv Connell' s house " on the night he was in Carolan' s house, nor did he " (the prisonier) ever say or swear that he had heard 1839.] REOINA t>. GAYNOR. SfiS "such talk, nor did he see any linen divided in the *' house of Carolan that niffht." Witness also said that he could state from memory, without lookin*^ at the informations, what the prisoner had deposed to before himself and the other magistrates, and what he swore on the trial of Carolan. The third witness was /. W. Browne, Esq.; he stated that he was employed in the Crown Solicitor's office; he attended the trial of Carolan and others at the Summer Assizes in 1838, and he stated, from a written memorandum taken at the time, that the prisoner Gaynor swore on that trial, "That "he never heard any conversation or talk about the "linen stolen from Matthew ConnelVs house between " Geoghegan and Duff on the night in question, nor did " he ever say or swear that he had, nor did he ever see " any linen divided in Carolah's house that night." The case for the crown having closed, F. Brady, for the prisoner, called upon the learned Judge to direct the jury to acquit him, upon the grounds, first, that there was no evidence to shew which of the two statements by the prisoner was the false one; and secondly, that there was no second witness to the offence, the matter alleged as perjury h? ing been contradicted by the evi- dence of Mr. Despard alone. He relied upon the follow- ing authorities; Rex v. Perrot, 2 M. & S. 379, 385, 392; Rex v. Harris, 5 B. & Al. 926; Jackson^ s case, 1 Lewin, 270; Roscoe on Ev. 688; Wheatland's case, 8 C. & P. 238 (34 E. C. L. 369); Muscofs case, 10 Mod. 192; Rex V. Nunez, Cas. T. Hard. 265; 2 Str. 1403, S. i *!l •2fiG JEnn'H RESRRVEl) CASRS. [Jiiiin 4 C.;*R€X V. Broftfjhton, 2 Str. 1230; 2 Chit. C. L. 312. lie also observed upon the case of Rex v. Knill, referred to in 2 Russ. on Cr. 545, and reported in a note to Rex V. Harris, 5 B. & Al. 929, as not applicable, be- cause it did not appear that the objections were made at the trial, and the court therefore was bound to pre- sume that the necessary evidence was sent to the jury, and the verdict properly found ; and upon the Rioters^ case, referred to ibid., (and reported in 5 B. & Al. 939, n.) as inapplicable for the same reason, and also as carrying little weight, because Chamhre, J., from whose note-book it was taken, expresses in the same passage an opinion in favour of the very form of indictment which was held bad in Rex v, Harris, and it was very probable that the indictment in the Rioters' case was in that defective form. The learned Judge refused to direct the jury to acquit the prisoner, and told them that if they believed the evidence, the indictment was, in his opinion, sustained in point of law. The jury found the prisoner guilty; and sentence of one monti""s imprisonment, and after that, of transportation for seven years, was pronounced. The prisoner's counsel, however, continuing to entertain a strong opinion upon the case, his lordship subse- quently reserved the case for the opinion of the Judges. Nine Judges {absentibus Woulfe, C. B., and Penne- father, B.; Torrens, J., dissentiente), were of opinion that th conviction was wrong. [June 4 C. L. . Knill, I a note ,ble, be- "e made i to pre- le jury, Rioters^ Al. 939, also as n whose passage lictment vas very e was in to acquit ved the ustained guilty ; nd after lounced. entertain p subse- ! Judges. d Penne- ■ opinion 1839.1 REGINA V. CIIARLETON. 3C7» * THE QUEEN v. ALEXANDER CIIARLETON. On a trial for big'amy, where tlio firHt mnrrinpc took place in Sentlond, it in not nec('H'n;-ly 'liven tiir the two Bums mentioned in the erased line.-', and tliat the prisoner's ohjeet was to get credit for the oilier sum as a separate payment. Ifcld, that tiie conviction was right. Srmtilc, that reading out a document, althougli the party refuses to s/i'iw it, is a sullicient uttering. The prisoner was tried and convicted before Greene, Serj., at the Spring Assizes for the County of Clare, in 1830, upon an indictment for forgery. The first count stated that the prisoner " feloniously did falsely make, " forge, and counierfeit, and feloniously did cause and if I U IS i IP Ri? f-J 284 JEBB'S RESERVED CASES. [June 20 " procure to be falsely made, forged, and counterfeited, " and feloniously did act and assist in the false making, " forging, and counterfeiting, a certain receipt and ac- " ([uittance for rent, -wliicli said receipt and acquittance " for rent is as follows, that is to say : ' Ennis, 3d of " 'April, 1837. Received from /ffwze.s and Jo/«i Green " * seven pounds seven shillings and seven pence ster- " ' ling on account of rent of their holding at Bealcraggy, "*as at foot. P. Citrtin.—£7 Is. Id.-: with intent to "defraud one Patrick Curlhi:^ against the peace and statute. The second count was for knowingly altering and publiishing a similar forged document with a simi- lar intent. The third count stated that the prisoner " did feloniously and falsely alter, and feloniously cause "to be altered, &c., a certain receipt and acquittance " for rent, which said last monlioncd receipt and acquit- " tance for rent was previously to said false alteration "as follows, that is to say, ^ Ennis, 3d of April, 1S37. "'Received from James and Jolin Green, £1 Is. Id. " ' sterling, on account of rent of their holding at Beal- " ' craggy, as at foot. '"P. CURTIN. I ,j [*283] " ' Cash per Johi Green, " 'Cash this day per do. "'Dec. 3, 1830, . jCS 6 4 1 7 £1 Is. Id: " which said last mentioned receipt and acc^uittance for " rent was then and there in the possession of the said '1> a i2G 1839.1 REGINA V. GREEN. 383 ;i ^^ John Green, by falsely obliterating and erasing the "following words and figures; — "Dec. 3, 1836, " Cash per Jo/m Greew, . . £3 6 " Cash this day per do. . 4 17 £1 7s. Id. " which said so falsely altered receipt and acquittance "for rent is as follows; 'Eiinis, 3d of April, 1837. Re- "'ceived from James and John Green £1 Is. Id. ster- " 'ling, on account of rent of their holding at Bealcraggy, "'as at foot; P. Curtin. £1 Is. Idf with intent to "defraud the said Patrick Curtin,^^ against the peace and statute. The fourth count stated that the prisoner having in his possession a falsely altered receipt (in the same words as that stated in the 1st count) did know- ingly alter and publish the same, with intent to defraud P. Curtin. The fifth count charged, generally, the forging, and the sixth, the uttering, a receipt for rent for £7 7s. 7d. with a like intent. 7 The facts of the case were these: — The prisoner and his father James Green, had been servants to Patrick Curtin, the prosecutor, of part of the lands of Bealcraggy. lie had passed to them a stamped receipt, which, as the prosecutor swore, * was originally in these [*284] words, "Ennis, April 3d, 1S37. Received from James "and John Green £7 7s. 7d. sterling, on account of the " rent of their holding, at Bealcraggy, as at foot. "P. Curtin. 'A 4 :l 294 JEBB'S RESERVED CASES. £3 4 [.Tunc 2fi 6 1 7 £7 7 7." " 1S3G, Dec 3, Cash per John Green, " Cush this day per do. The prisoner'f fatlicr svvore that he had given sepa- rate unstamped ackno^/ledgmcnts, one for the dC3 (Ss., dated Dec. 3d, 183G, and one for the £4 1.9. Id. Tliesc were produced and identified. The amount of the year's rent was £1 Is. Id. In Decernher, 1838, the prisoner made a tender to the prosecutor on account of the year's rent due the 1st of May previous, which the prosecutor declined to receive, it being alleged to be short in amount. On the 18th of December following, the prisoner tendered to the prosecutor a sum of £2 19s. lOfZ., the balance of the rent due to the 1st of November, 1838, according m account furnished by the prisoner ; claiming certain credits. The prosecutor and prisoner entered into the accounts, and the prisoner produced documents to vouch the credits he claimed. Amongst these was the receipt in question. The prosecutor asked the prisoner to show him the vouchers, but he said he would not show his papers to any man but his attorney; and he called out the sums which he alleged they vouched. In tliis way he claimed credit for the amount of the receipt in question, and also of the two unstamped receipts for the sums of £3 65. and £4 \s. Id. The prosecutor afterwards saw the receipt for £1 Is. 7d., and having obtained possession of it, handed [*285] it to a iioliceman. *It was produced, and if [.Tunc 2('. ) L 7 n scpa- £3 65., These of the 538, the 30unt of hich the 3d to be )llo\ving, '£2 19s. ovember, prisoner ; prisoner produced Amongst »rosccutor •s, but he vn but his 10 alleged it for the jf the two nd .:G4 l5. ■cccipt for it, handed ced, and it um.] REGINA 1). GREEN. -2ii3 appeared tliat tlie two lines "183(5, Dec. 3d, cash per ''Jolui Green £3 iul, cash this day jCI Is. Id.;' had been erased, and tlio tot. LI Is. Id., roinaiiied as it originally was; and tlu prosecutor swore, that those two lines had been in the receipt when ho signed it. Freeman, for the prisoner, made two points; 1st, That there was no uttering of the forged receipt witliin the meaning of the Act of parliament («), the prisoner hav- ing refused to shew the receipt; and he cited Wool- dridije's case ((^), and Rex v. ShuJianJ{c), in which it was ruled that the mere shewinu' of a foru^cd instrument with the view of raicing a false idea of a man's wealth was not an uttering within the 13 Geo. III. c. 79. Secondly, That the indictment was insufficient, as not containintx an averment that the two lines alleo;ed to have been erased were acknowledgments or vouchers for the payment of two sums m.. Icing together the £7 7.S-. 7d., and that such sum of £7 7.">. 7d. was the same £ 7 7s. 7d. as appeared at the bottom of the receipt ; and an averment, that such two payments were evidenced by other receipts wdiich the prisoner had used as well as the receipt in question, so as thereby to attempt to gain a double credit. That the receipt, as produced, appeared to be perfect, the words "as at foot," agreeing with and having reference to the £ 7 7.''\ 7d. which was tl).e alleged total of the two smaller sums; and that the .«) 3y G. 3, c. G3, h. 1. Hi) I Lcacli, 307. U-) Utiss. Hi. Ky. 200. ' ?i 5 1 li^ 285 JEBB'S RESERVED CASES. [June 26 facts should have been stated which shewed the altera- tion so as to constitute a forgery ; for that where a fact extrinsic to the instrument itself is necessary in order to [*2S6] shew it to be a forgery, such fact must be * spe- cially averred, as in Ilunter^s case («), and Thompson's case {h). As to the first point, the indictment having contained counts for the actual forgery, and tlie jury having found the prisoner guilty on all, it became unnecessary to decide upon it, although the learned Judge thought there was a sufficient uttering. The second question his lordship thought it right to reserve for the consider- ation of the Judges; although the bearing of his opinion at the time was, that the indictment was sufficient. Eight Judges {Woulfe, C. B., Doherty, C. J. C. Pleas, Pemicfather, B., and Perrin, J., being a,bsent), unaniraous'ly held that the conviction was good. (a) 2 Loach, C24. (/;) 2 Leach, 910. 1839.] REGINA V. RODINSON. 28G THE QUEEN v. GEORGE ROBINSON and MICHAEL ROBINSON. On tlic trial of an accessary. before the fact to a felony, the proper evidence of the conviction of tiic principal felon at a former assizcH for tlie kaaie county, is u record of the conviction, and not the crown book. The prisoners were tried at the Summer Assizes ofAthij for the County of Ktldare, in 1839, before Johnson, J., on an indictment charjjinjj them as accessaries before the fact to a burglary and robbery committed in the dweUing house of the Rev. Mr. Roberts, in that county, in the month of March, 1538. The principal felon (a man of the name of Michael Flanagan) was tried at the previous Spring Assizes for the same county, on an indictment for burglary and robbery, upon which he was found guilty, and sentenced to transportation ; and from various facts and circumstances * which [*287] were divulged on his trial, it was considered advisable to proceed against the two Robinsons as accessaries, and they were accordingly tried as such at the subsequent Assizes. e The first piece of evidence offered on this trial on the part of the crown was the conviction of the principal felon, which was proved by the production of the crown- , book of the previous Assizes by the clerk of the crown, containing the usual entries of the indictment, plea, 45 r 387 JEBB'S RESERVED CASES. [November 30 trial, and conviction of Flanagan the principal, and the subsequent judgment of the court pronounced upon him. The reception of this evidence was objected to by the counsel for the prisoners, on the ground that the legal mode of proving the conviction should have been by the production of a record regularly made up and attest- ed by the proper officer. But on hearing the arguments offered by the counsel for the crown, who stated, amongst other things, that it had been the constant and invariable practice of th(5 circuit, when the trial of the principal felon had taken place at a previous Assizes held for the same county, to prove the conviction in the same man- ner as it had been done in the present case, and that such evidence had always been received by the court, the learned Judge admitted the evidence, and the pri- soners were both convicted, on clear and satisfactory testimony, of the offence with which they were charged. The prisoners subsequently presented a memorial to the Lord Lieutenant, praying their discharge, inasmuch as they were advised that the conviction was bad in law; and the memorial having been referred to Johnson, J., as the Judge who tried the case, his lordship recom- mended a respite of the sentence, which was respited [*288] accordingly, for *the purpose of obtaining the opinion of the Twelve Judges on the point made by the prisoners' counsel, whether the evidence in question ought to have been received, and if it should not, what course should be taken res^ 3cting the prisoners. 1840.] OFFICERS AT ADJOURNED ASSIZES, CAVAN. 288 Nine Judges [Woulfe, C. B., Torrens, J., and Richards, B., being abse.it), unanimously held that the conviction was wrong (a). Johnson, J., accordingly recommended the prisoners for a pardon. (n) The following autlioritics were nmonjrst others considered hy tiio Judges in giving their opinion:— 2 Phill. Mv. 0:33.8, (Ed. 1H38); Peuite on Ev. 36, 49; Rex v. Bowman, 6 C. &, P. 101 (25 E. C. L. p. 500); Rex v. Smith, 8 B. & C. 341, (IS E. C. P. 232.)— Sec Dyer'i Case, ante, 198. IN the Matter of a Presentment for payment of Oflficers at an ADJOURNED Assizes, in the County CAVAN. The 110th section of the 6 & 7 W. 4, i. 116, docs not authorize a presentment to thr. cierli of tlic crown or tlic under sheriff for duties performed at an adjourned assizes. In Spring, 1939, the Judges on the North-West circuit held an adjouruiid ussizus at Cavan, which the clerk of the crown and the under-sheriff attended, and performed their u.sual services to the satisfaction of the Court. At the Summer Assizes in 1839, these officers applied to the Judges for a presentment for the duties and services performed by them at such adjourned assizes, and rested their claim* on the 11 0th section of the Grand Jury act, 6 & 7 Wm IV. c. 116 A douJ/t having been suggested on the construction of this ejection, fff/'rens, J., respited m ii 288 JEDR'S RtlSERVED CASES. [February 8 the presentment, in order to take the opinions of the Judges, whether those ofhcers were entitled to any, and [*2S9] what payment, *for the duties and services performed at such adjourned assizes. Eleven Judges ( Wmtlfe, C. B. being absent,) were unanimously of opinion that the officers in question were not entitled to any payment for duties and services performed at an adjourned assizes (a). II (a) Tlic only construction of tho II 0th section of the Act, which could authorize the otficcrs to receive payment for services at an adjourned aHsizcs, would bo the cotiHtructioii that " tiuch oflioer" in the latter part of the section meant an officer who iiad discharj^cd his duty neg;Iigcntly or inHufficicntly. As to presentments for duties performed at Special CommitBions, sec section 1 13. IN the Matter of Presentments of VAGRANTS in the Counties of MEATH and CAllLOW. Hald, by eleven Judges, that the Vagrant Acts (6 Ann. c. 11, 9 G. 2, c. 6, 11 &. 12 G, 3, c. 30, and 31 G. 3, c. 44,) apply to the several counties in Ireland, and not to thu county and city of Dublin alone. Held also by six Judges to five, that those Acts apply to women as well as men. At the Summer Assizes for the Home Circuit, in 1839, two persons, both females, in the county of Meath, and a man in the county of Carlorv, were presented by the irunry 8 »f the f, and r vices ) were lestion jrvices authorize mid bo tlie an officer cction 113. 1840.1 MEATII PRESENTMENT, VAGRANTS, 869 Counties . 6, 11 & 12 Jreland, and Jgcs to five, in 1839, ath, and id by the Grand Jury as vagrants, in the usual manner, and lu both instances the prisoners havin^^ traversed the pro- sentments, and the cases havinjr come on to be tried before Bushe, C. J., counsel (not employed by the tra- versers, but as amiri curice) statotJ, that decisions had been made on thi.s ^:ircuit by different Judges, within the last four years, some of whom held that the statutes of 6 Ann. c. 11; 9 G. II. c. G; 11 & 12 G. III. c. 30; and 31 G. III. c. 44, (upon which the y^ractice for many years adopted was founded,) applied only to the city and county of Dublin; and others, that men alone were in contemplation of the legislature, and that no woman could be legally subjected to such a proceeding. Coun- sel, in further support of the objection, * referred [*290] to an opinion of the late John Mayne, Esq., in a note in page 309 of " llaijeis Crimes and Punishments," ed. 1837. — " Upon the subject of these Acts a late eminent "criminal lawyer, (/. Mayne, Esq.) writes as follows: " The usual course, but unauthorized by the Acts, is to ** present the person as a vagrant, who is tried upon his " traverse as a matter of course ; and then, if the traverse "be found against him, he is ordered to give security; " if found for him, he is discharged ; whereas upon pre- " sentment alone, he is entitled to be admitted to give " security. If he traverse, and be a convicted vagrant, "the judgment shall be transportation, absolutely." No sufficiently accurate information, however, could be given, so as to enable the learned Chief Justice to ascer- tain with precision what course was taken by the Court ! ,1'' i V'ti' ! IMAGE EVALUATION TEST TARGET (MT-3) /i^:^ 1.0 lU 1^ 1.1 lit I u U u 1^ 12.0 M Bfiiy4U4 < 6" > %-il%]Ufl\% nc udBOCGS Ccrpciratian 13 WKT MAIN STMIT WIMTII,N.V. 14ta0 (7l«)f73-4S0t 990 JEBB'S RESERVED CASES. [Februarys ia the cases alluded to by counsel, whether by quashing the presentment, or directing the jury to find against it, nor could he obtain an exact statement of the decisions relied upon, of the reasons given for them, or of tho facts given in evidence. But considering it to be a question of considerable importance, his lordship thought it right, with a view to future practice, to bring it under the consideration of the Judges, in order that it might be settled. The learned Chief Justice, in reserving the case, sub- mitted the following observations : — " The statutes rela- ting to these questions are the 6 Ann. c. 11, s. 1 ; 9 Geo. IL c. 6, ss. 1, 3, & 4; 31 Geo. III. c. 44; 11 & 12 Geo. III. c, 30. The practice which I have known to exist in such cases for the last forty years, and which I have myself been in the constant habit of adopting, is this : — When a person is presented as a vagrant, if that pre- sentment be traversed, the practice has been to leave it [*291] to a petty jury *to consider whether the tra- verser is a person of no certain place of residence, with no honest means of livelihood, who will not betake himself or herself to any honest trade or livelihood ; and if so, to find for the presentment; and if not so, for the traverse; and when the verdict is against the traverse, I sentence him or her to be imprisoned for three months ; at the end of which, if they cannot give security for being of the peace and good behaviour for seven years, (them- selves generally in £5, and two sureties each in £2 \kl .■■i 1840.] MEATH PRESENTMENT, VAGRANTS. 391 IO5.; and sometimes in £10, and sureties ii £5,) they are to be transported for seven years." in £2 Eleven Judges {Woulfe, C. B., being absent,) were unanimously of opinion that the statutes referred to were in force in the several counties in Ireland. Six of them, BusHE, C. J., DoHERTY, C. J. C. Pleas, Burton, J., Crampton, J., Richards, B., and Ball, J.,) held, that they included women as well as men; and the remaining five held, that they applied to men only; Pennefather, B., qualifying his opinion, by adding, " except perhaps in the county and city of Dublin" (a). (a) The following statement by Walter Bourne Esq. (Clerk of tlic Crown of the Queen's Bench) of the practice, and opinion of Edward Tickell Esq., Q, C, upon the law, in ci^ses of vagrancy, were laid betore the Judges, and considered by them during the discussion: Statement of Walter Bourne, Esq. — ^" From my earliest experience on this sub- ject, the practice has been, that upon a presentment of any person by the Grand Jury as a vagrant, a traverse was allowed to the party; and if a verdict passed .n favour of tiie presentment, tlie party was sentenced to be transported for seven years, unless he or she should enter into recognizance with two sureties (from Lord Carle, ton^s time, say 178!), t!ie sums being usually £5 for the principal, and £2 10«. for the sureties) to be of the peace and good behaviour for seven years; an*! unlcs? the security was given within a time spccitied (say three months) then the m- was to be transported. Before Lord Carleton's time, the period within wliich security should be given was led at large, and security was taken any time before the sentence was put into execution ; but from tiie passing of tiie Act (31 G. 3, c.44,) about that period, a time for giving the sccuiity was always specified in the sen- tence or order." Opinion of Edward Ticktll Esq., on the questions, "Whetiier the Vagrant Acta "now in force in Ireland, apply to the several counties in Ireland, or to the county "and county of the city of Dublin alone? and whether women are contemplated hy "the statutes relatinff to vagrants'!" — "I am clearly of opinion, that the powers given by the G Ann. c. 1], s. 1, to Grand Juries at the assizes to make presentments " of loose and idle vagrants," and to the justices of assize, to grant such warrants as are therein also mentioned, are not confined to the county of the city and county of Dublin, but arc of general application to the several other counties in Ireland, By the 6 Ann. c. 11, s. 1, it was enacted, that such vagrants, &.c. &c. should, upon 232 JEBB'S RESERVED CASES. [Februarys • the presentments of the Grand Juries at the assizes and at the prcnernl quarter ses- sions of the |)cacc, and upon warrants from the justices of assize, or justices of the peace at their respective quarter sessions, be sent to gaol, &c. Tlie 9 G. 3, c. 6, s. 1, after reciting that tlic several temporary laws and statutes therein mentioned (amongst which is the above statute of the 6 Ann, c. 11,) were found by exj>ericnce to be of general use and fit to be continued, enacted, that the said statutes and all and every the powers, provisoes, and pcnultics therein contained, witii the altera- tions and additions made in and by this (tiie said act of 9 G. 2) should continue, and be in full force and etfect, until, &.c. By the second section of this Act of 9 G. S, the said powers given by the 6 Ann. to the Grand Juries at the assizes an t at the general quarter sessions, are both recited; but that given to the Grand Jurit.s at the quarter sessions is stated to have been found inconvenient, and by the third section is accordingly taken away from all Grand Juries at quarter sessions with the ex- ception of those in the county of the city and county of Dublin. As the first sec- tion contained no recital of any inconvenience arising from the power given to the juries at the assizes, so the third section leaves this latter power untouclicd; and as the fourth section declares the right of every person presented " at the assizes" to traverse, it proves beyond a doubt that the legislature did not intend by any thing in tills last-mentioned act, to take away the said power of presentment so given as aforesaid to Grand Juries at the assizes. As however the said act of 9 Geo, 3, s. 3, recited that there were great numbers of loose and idle vagrants in the county of the city and county of Dublin, powers of presentment of such persons were thereby also given to the Grand Juries at the King's bench sessions of oyer and terminer and gaol delivery, held in the King's courts afler term, for the county and county of the city of Dublin, and by the third section, the powers which had been previously pos- sessed by the Grand Juries were given or preserved to the Grand Juries at the quarter sessions of those two last-mentioned counties. That the act of the 11 & 12 Geo. 3, e. 30, which was passed for the relief of the impotent poor, and the restraint of vagrants, did not operate as an actual or implied repeal of the 6 Ann., is manifest, from this latter statute having been so far as relates to the presentment of loose ■nd idle vagrants revived afler it had expired, and made perpetual by the 31 Geo. 3, c. 44; and it may bo further observed, that if the 9 Geo, 2 had operated to repeal the powers given by the G Ann. to Grand Juries at the assizes, (as it clearly did with respect to the powers of Grand Juries at the quarter sessions,) no part of the 6 Ann. relating to the presentment of vag^'ants would have been revived and made pei'petual as before mentioned by the said act of the 31 Geo. 3. " On the next question, ' whether females are subject to the provisions of the 6 Ann.'; I am of opinion that they arc, and should be equally clear on this point as on the former, were it not for the decision of Mr. Baron Foster, in the Queen v. Adams, as reported in 1 Cr. & Dix's Circuit cases, 140. The following arc the classes of persons described in the statute. 'All loose and idle vagrants and such as pre- tend to be Irish gentlemen, and will not betake themselves to any honest livelihood, but wander about demanding victuals and coshering from house to house, and also all loose and idle persons of infamous lives and characters.' The statute of 9 Geo. II. by its second section recites, that by virtue of the above statute of the 6 Ann. upon presentment of the Grand Ju'ies at the Assizes, &c., 'of any loose or idle vagrants (I ibruary 8 artcr ses- :c8 of the !,c.6,8.1, ncnlioncd ;x|icricnce Ics and all tlic altera- 1 continue, Vet of 9 G. an 1 at the urit.s at the lird section n\h the cx- lic first sec- Tivcn to the lied; and as 1 assizes" to ly any thing , so given as Geo. 2, s. 2, jounty of the thereby also terminer and eounty of the cviously pos- furies at the ^thell&12 I the restraint ., is manifest, ment of loose lhe3lGco.3, itcd to repeal it cleiirly did 10 part of the vcd and made /isions of the I this point as the Queen v. are the classes d such as pre- lest livelihood, lOusc, and also tcof9Gco.II. c 6 Ann. upon idle vagrants 1810] MEATH PRESENTMENT, VAGRANTS. 293 or such as would not work or betake themselves to an honest livelihood, or of loose persons of infamous lives and characters,' such persons were to be sent to p'aol, &e., and it (the 9 Geo. 2,) then procrcds to give to the Grand Juries at the King's Bench, &c., powers to preset precisely the same dc«cription of persons, namely, 'AH loose and idle vagrants and such as would not work and belukc themselves to an honest livelihood, and all loose persons of infamous lives and churaclers.' Now, if under these latter words so contained in the 9 Geo. 2, females might be presented by the Grand Juries ut the King's Dench, &e. in the eounty of the city and county of Dublin, there can l^c no reason why they might not ))c equally presented at tlio Assizes under the G Ann., the Grand Juries there having, according to the above rccilal, powers to present the same classes of persons as arc mentioned in the 9 G.2; and that females were contemplated by the legislature as falling under the operation of both statutes, is, I think, manifest from the terms of the 4lh section of the 9 Geo. 2. This clause begins by reciting that a doubt had been conceived whether persons so presented by any Grand Jury, (presentments by Grand Juries at the Assizes had been previously mentioned in the second section of said Act,) had a light to traverse. It tiicn enacts and declares that it shall be lawful for every per- son or persons so presented by any Grand Jury at the King's Bench Assizes, &c. to traverse such presentment, if he, she, or they shall think fit, and by tlie latter part of the same section it provides, that if such traverse should be found against liim, her, or them, then such person shall be sent on board the fleet, or be trans- ported, &c. It was argued in a case reported in a note to the before-mentioned case of the Queen v. Adams, that the 6 Ann. refers alone to loose and idle vagrants, pretending to be Irish ^enf/emen ; but this is not so, it goes much further; it em- braces, according to the 9 Geo. II. all loose and idle vagrants, and all loose persons of infamous lives and cliarncters; and by the 31 Geo. 3, the statute of Anne was, so far as it regarded the presentment of loose and idle vagrants, with the alterations and additions made by the 9 Geo. 2, revived and made perpetual. Tiiese two sta- tutes, theretbre, so far as regardj the presentment of vagrants, ought now to bo looked upon cs one, and it is impossible, in my opinion, to apply a rule of construc- tion to the one, which ought not to be equally applied to the other. Both were diiceled principally against vagabonds, and that such persons were liable to be tiausported under the 6 Ann., appears from tlie provision in the latter end of tho 2d sec. of 9 Geo. 2, subjecting those who were presented by Grand Juries in the county and city of Dulilin, and who broke gaol, &c., to the same presentment as vagabonds ordered to be transported at the assizes. It is also argued in the before mentioned note, that the punishment of l)eing sent on board the Fleet is not appli- cable to females, and that therefore the statute of 6 Ann. ought not to be extended to them; but the same oI>jeetion would apply to extending to them the 9 Geo. 2, in which the presentments arc exactly the same as those in the 6 Ann., viz. being sent on board the Fleet, or transportation. In the same note it is also argued that be- cause the statute of II & 12 Geo. .1, c. 30, eontsined enactments against strolling prostitutes, and provided specific penalties for llicm, therefore such persons ore not subject to those penalties contained in tiie 6 Ann. The clause alluded to in the II & 12 Geo. 3, is the Sth section, which enacts, that the corporations therein men- tioned might and were thereby required, as soon as they should have funds for 46 i w lis 1 394 JEBB'S RESERVED CASES. [February 8 building and furnishing houses of industry, to tal the ques- at liberty esentment T to be im- 1840.] REOINA t. KELLY. S98 panneled. Secondly, that the Judge is bound to cause a petit jury to be impanneled. Thirdly, that the Judge has, after a verdict for the applicant, a discretion to direct the Grand Jury to consider the case, or not so to direct them, as he may think proper. THE QUEEN v. BRIDGET KELLY. [209] An indictment against a woman for the murder of lier child, not slating that tho cliiJd was born alive, but stating that it was exposed by tlie prisoner, and in consequence " languished, and languishing did live for half an hour, and then died," and " that so tlie prisoner did kill and murder the child in manner afore- said," is good. Semhle, that an indictment for the murder of a "certain male child," without Airther description, is insufficient. The prisoner was convicted before Greene, Serjeant, at the Spring Assizes for Roscommon, in 1840, upon the following indictment :— First count. " County Roscom- mon to wit: The jurors for our sovereign lady the Queen upon their oath do say and present that Bridget Kelly, late of, &c., heretofore, to wit, on the 11th day " of November, 3 Vict., at, &c., was delivered of a cer- " tain male child — and the jurors aforesaid, upon their " oath aforesaid, do further say and present, that the " said Bridget Kelly, afterwards, to wit, on the said 11th " day of November, in the said third year of the reign " of our said lady the Queen, had in her care, custody. <( (< r ■ W ' 999 JEBD'S RESERVED CASES. [Juno 18 •and control, the said male child, he, the said male ' child, then and there being of tender age, to wit, the * age of one day, and by reason of such tender age, ' being utterly incapable of making known his natural * wants, or of providing for, or procuring his natural 'attention, support, and maintenance; and tlie jurors, * &c., do further say and present, that the said Bridget * AW/y, well knowing the premises, and not having the 'fear of God before her eyes, but being moved and « seduced by the instigation of the devil, and of her * malice aforethought contriving and intending to kill « and murder the said male child of such tender nge as aforesaid, to wit, on the said 11th day of November, in the said third year, &c., with force and arms, at, &c., in and upon the said male child feloniously, wil- fully, and of malice aforethought, did make an assault, and did then and there of her malice aforethought, contriving and intending to kill and murder the said * [*300] male child, place, put, leave, desert, and * aban- ' don the said male child in a certain stone wall, situate ' at Morgamtotvn aforesaid, in the County of Roscommon 'aforesaid, in a state wholly destitute and unprotected; ' the said male child then and there being by reasoii of his tender age utterly incapable of making known his natural wants, or of providing and procuring for him necessary attention, support, and maintenance; and the jurors, &c., do further say and present that by reason of such placing, putting, leaving, deserting, and abandoning the said male child in the said stone [Juno 18 (1 malo wit, the ler age, natural natural ) jurors, Bridget ving the ved and 1 of her g to kill er ?ge as Dvember, arms, at, isly, wil- 1 assault, jthought, the said d*aban- 1, situate iscommon irot,ected ; reasoii '^f nown his g for him ,nce; and t that by deserting, said stone 1^10.) REOINA e. KEM.Y. 300 " wall, at Morganstown aforesaid, in the County nfore- "said, ho the said mulo cliild, for want of needful food "and sustenance, and of due and proper care and atten- ** tion, and by and through the inclemency of the weather, *• there and then instantly languished, and languishing "did live for and during the time and space of half an " hour, and then and there the said male child in man- " ner and by means aforesaid, perished and was deprived "of life; and so the jurors, &c., do say and present that " the said Bridget Kelly the said male child, with force "and arms aforesaid, in manner and form aforesaid, " feloniously, wilfully, and of her malice aforethought, "did kill and murder," against the peace and statute. Second count: — "And the jurors, &c., do further say " and present, that the said Bridget Kelly, on &c., with " force and arms, at &c., not having the fear of God " before her eyes, &c., in and upon a certain male child, " feloniously, wilfully, and of her malice aforethought, " did make an assault, and that the said Bridget Kelly ^ " with a certain stone of ro value, which she the said " Bridget Kelly in her right hand then and there had " and held, the said male child in and upon the head of " him the said male child then and there feloniously, " wilfully, and of her malice aforethought, did strike "and wound, thereby * giving to the said male [*301] " child then and there with the stone aforesaid, in and " upon the nead aforesaid of him the said male child, " one mortal wound of the length of two inches and of " the depth of two inches, of which said mortal wound 47 I 1 !'!! ih, iill m i. ,: 301 JEBB'S RfiSERVED CASES. [June 18 " the said male child then and there instantly languished, ** awd languishing did live for the time and space of half "an hour, and then of the said mortal wound, at, &c., "died; and so the jurors aforesaid, upon their oath " aforesaid , do say, that the said Bridget Kelly him the " male child in manner and form and by means aforesaid, " feloniously, wilfully, and of her malice aforethought " did kill and murder," against the peace and statute. Casserly and ilf ' Causland, for the prisoner, moved that the judgment should be arrested, on the ground of the insufficiency of the indictment; the first count being defective in not averring that the child was born alive, and the second in not properly describing the male child therein mentioned, either by name, or age, or otherwise, or saying that it was to the jurors unknown ; and in being too general. It was contended on behalf of the crown, that the conclusion of the first count sup- plied the want of an averment that the child was born alive • and that no more particular description was ne- cessary in the second count. In support of the first objection were cited the precedents in Archhold's Crim. Plead., where the form of indictment avers that the child was born alive; and in support of the second, Biss's case, 8 Car. & Payne 773, (34 E. C. L. 630), and Evans's case, ibid. 765 (id. 625) (a). The opinion (a) Sec also the cases collected in Arch. Plead. &. Ev., 30, (8tli ed.) which appear to leave no doubt upon tlic subject. I i [June 18 uished, of half it, &c., ir oath litn the oresaid, thought statute. ved that d of the it being n alive, tie male age, or iknowu ; n behalf lunt sup- vas born was ne- the first Vs Crim. that the ) second, L. 630), e opinion wliich appear 1840.] REGINA V. HARTNETT. 301 I i of the learned Judge was that the second count was bad, but that the firs* was good ; and he reserved * for [*30ii] the consideration of the Judges the question whether . either of the counts could be supported. Eleven Judges ( Woulfe, C. B., being absent) were unanimous in upholding the conviction, on the ground that the first count was good. Richards, B., held the second count to be bad, but the other Judges gave no opinion upon that point. THE QUEEN «. JAMES HARTNETT and THOMAS CASEY. Where the Judge omitted, in pronouncinor sentence on a conviction for murder, to order that the bodies of the prisoners should be buried witliin tlie prceincic of the gaol, as directed by the 4 & 5 W. 4, c. 2fi, s. 2; but on a subsequent day, on ruling the book at the close of the sanfe assizes, in the absence of the prisoners, ordered tlie clause in question to be inserted: Held, that the sentence was illegal, notwithstanding the 6 & 7 W. 4, c. 30, s, 2. The following report was submitted '" Richard Moore, Q. C, to Bushe, C. J., to be laid uelbre the Twelve Judges for their consideration : — " At the last assizes held for the city of Cork," (Spring Assizes, 1840) '' James Hartnett and Thomas Casei/ were " convicted before me of murder. After conviction they "Bf: 4'' JEDB'S RESERVED CASES. [May 18 \ I II ill ! ii " were asked, in the usual way, whether they had any " thing to say, why sentence of death should not be pro- " nounced upon them; and I then pronounced sentence " of death, but did not at that time direct that their " bodies should be buried within the precincts of the "gaol. When ruling the book in a day or two after, I "directed in open Court that their bodies should be " buried within the precincts of the gaol. The prison- " ers were not in Court on this latter occasion. " It has been suggested by Mr. Cqppinger, one of the counsel for the prisoners, that the above proceeding is [*;i03] * open to objection, and that the prisoners are entitled to derive some benefit from the objection. I have not been apprized of the ground of the objection, nor whether the counsel contends that there is error in the proceeding. On communicating with the At- torney-General, he has suggested that I ought to lay the facts before your lordship, in order to have your opinion, and that of the other Judges: and for that purpose I have taken the liberty of making the above statement to your lordship. " I have the honor to be, " My Lord, " Your obedient servant, " Richard Moore." The following certificate, signed by the prisoners' counsel, was also laid before the Judges : — [May 18 ' had any ot be pro- . sentence that their cts of the ro after, I should be tie prison- one of the ceeding is soners are lection. I objection, re is error ith the At- ight to lay have your d for that the above 1840.] REGINA V. HARTNETT. servant, D Moore." prisoners' N (( « (( "We certify, that the prisoners, Hartnett and Casey, " were tried before Richard Moore, Esq. one of her Ma- "jesty's Judges of Assize for the Munster Circuit, at " the last assizes for the county of the city of Cork, " charged with the wilful murder of Patrick Lawlor, " and that hcch of said prisoners, Hartnett and Caseij, " were fou-.id guilty of that wilful murder. We further " certify, that the learned Judge, in passing sentence of death upon each of these two persons, omitted to pro- nounce the sentence as directed and prescribed by law, " namely, that he omitted, in pronouncing said sentence "upon said Hartnett and Caseij, to express that the bodies of the said prisoners should be buried within " the precincts of the prison, as is directed and pre- " scribed by the Act of Parliament («), in that case * made and provided. And we further cer- [*304] " tify, that the said prisoners were not, nor was either of them, again, during said assizes, called up before said Judge, nor did he pronounce upon them, in their " presence, any sentence pursuant to law ; and we certify, " that in our opinion there are reasonable grounds to "argue, that the above judgment should be reversed " upon error brought. " Christopher Coppinger, "Wm. Deane Freeman." («) 4 & 5 W. 4, c. 2G, B. 2.— See also the 6 & 7 W. 4, c. 30, b. 2, and the 1 Vict c. 77. The title, and tlic 3d section, of the latter Act, were referred to by tlie Attorney-Gcuerul, after the argument, as possibly bearing ujwn the question. t( (( m^ \ 304 JEBB'S RESERVED CASES. [May 18 !l i ill The case was argued by the Attorney-General and other counsel for the Crown, and also by counsel for the prisoners, before ten of the Judges ( Woidfe, C. B., and Pennefather, B., being absent) ; and the majority of them, consisting of six Judges (Doiierty, C. J., Torrens. J., Foster, B., Crampton, J., Peprin, J., and Ball, J.,) were of opinion, that the sentence was illegal. All those Judges, except Perrin, J., rested their opinion upon the ground, that the original sentence, of death only, was illegal, because it did not contain an order that the bodies should be buried within the precincts of the gaol; that the 4 & 5 W. IV. c. 26, s. 2, was not merely directory, but made the order a part of the sen- tence; and that the amendment would have made it right, if made in the presence of the prisoners, but that as it was made in their absence, they were not affected by it. Perrin, J., held, that the sentence of death alone was, by force of the 6 & 7 W. 4, c. 30, s. 2, the only legal sentence which could have been passed since that statute; but that what was added in the Crown Book had rendered it illegal, because if a record had been made of the conviction from the Crown Book, it would not appear from it to have been entered in the absence [*305] of the prisoners. The minority * (consisting of BusHE, C. J., Johnson, J., Burton, J., and Richards, B.,) held the sentence to be legal. Of these, Bushe, C. J., was of opinion, that the original sentence would have been illegal, if the case had occurred before the 6 & 7 W. IV. c. 30, s. 2, the order to bury being essential to [May 18 leral and lel for the 3. B., and y of them, RRENS. J., Ball, J.,) egal. All ir opinion 1, of death a an order irecincts of 2, was not of the sen- ve made it rs, but that not affected 3eath alone 2, the only d since that rown Book i had been ok, it would the absence ;onsisting of I RlCHA-RDS, B, BUSHE, C. would have re the 6 & 7 essential to 1840.] REGINA o. HARTNETT. 305 the legality of the sentence; but that statute having put sentences for murder upon the same footing as sentences for any other capital offence, the sentence pronounced in the presence of the prisoners was, as such, a legal sentence ; and that what was done in the absence of the prisoners could not have the effect of making that ille- gal, which was legal before. The other three members of the minority were of opinion, that the original sentence was legal, and would have been so before the 6 & 7 W. IV. c. 30, the clause respecting the order to bury the body being only directory, and not making such order indispensable to the legality of the sentence ; and that the amendment in the absence of the prisoners did not render it illegal. The decision being favourable to the prisoners, they were accordingly pardoned and discharged; but with the view of establishing uniformity and certainty with respect to statutable provisions which are common to both countries, Bushe, C. J., wrote to the Lord Chief Justice of England, to inquire whether, in England, since the late alterations in the criminal law, any ques- tion had been raised, or any decision made, as to what was the legal sentence to be passed upon persons found guilty of murder. His Lordship, at the same time, transmitted a statement of the above case, and of the decision of the Judges upon it. The answer of the Lord Chief Justice of England was as follows : — I ilii ,1 I ••I ^ "i f i •306 JEBB'S RESERVED CASES. [Juno 18 ^"Westminstcr-hall, June 8, 1840. " My dear Lord, "Though no case has come regularly before the " Judges of England on the point stated by your Lord- " ship, I have no doubt that they would come to the " same decision as that which has taken place at Dublin. " I myself, two years ago, passed a sentence with the " same defect, and found so strong a doubt of its legality " prevailing among the Judges, that it seemed prudent " to recommend a commutation of the sentence. Cer- "tainly in this country no sentence for murder will " omit hereafter to include a direction for burying the " convict's body. " Your Lordship's " Most faithful servant, "Denaian." ^'^To the Lord Chief Justice ''of Ireland:' I i:iif 'i W [*307] IN the Matter of a Presentment for the Repairs of ROADS in the County of TIPPERARY. Held, tJiat in consequence of the 6 &. 7 W, 4, c. 116, the Grand Jury liad no power to make a presentment for the expenses of repairing a turnpike road in Tipperary, under the 3 & 4 W. 4, c. 1 12, r. 92, where tlic application fur that purpose had been disallowed at the sessions. Henry Pedder and Thomas Hughes, two of the Trus- tees of the Clonmel turnpike district, applied, on behalf [Juno 18 1840. ifore the lur Lord- le to the it Dublin. with the Ls legality 3 prudent ice. Cer- irder will irying the rvant, ;nman.' 1840.] TIPPERARY PRESENTMENT, ROADS. 307 Repairs of ■y had no power ad in Tipperary, hat purpose had f the Trus- on behalf of that district, under the 3 & 4 W. IV. c. 112, (local and public) to the Road Sessions held at Clo?imel for the County of Tipperary at large pvevious to the Spring Assizes, 1840, for a presentment for £300, for repair- ing part of the road from Kilkenny to Clonmel, to be levied off the south riding of the county; but the appli- cation was disallowed at sessions. A copy of this appli- cation was, however, afterwards laid before the Grand Jury for the South Riding of the county at Clonmel Spring Assizes, 1840, and a presentment was thereupon passed for the required sum by the Grand Jury. The application and presentment were as follows : "We, Henry Pedder and Thomas Hughes, botli of, &c., do certify, that we have lately viewed and caused to be measured 11,735 perches of the turnpike road leading through Clonmel, from the city of Kilkenny to the city of Cork, &c., and that the said 11,735 perches of land are in the townlands following, viz. &.C., all in this county, and that the same are in need of re- pair; and we propose that the expense of the aforesaid repairs shall not exceed £ 300, at the rate of Gd. per perch, and shall be defrayed by the South Riding of the county at large, and that a presentment for such purpose shall be made under and by virtue of the 12th section of the 6 & 7 W. IV. c. 116, being an Act to consolidate the laws relating to, &c., and under *and by virtue of the 92d section of the 3 & 4 [*308] W. IV. c. 112, being an Act for more effectually re- 48 If! li w. n '!,''. '> I ;;, 808 J£BB'8 RESERVED CASES. [Juno 18 " pairing several roads in the counties of Carlow, Kil- "ke?iny, and Tipperary, and also the road from the " town of Clonmel, through the county of Waterfoi'd, to ** the cross-roads of Knocklofty, in the said county of " Tipperary. "Henry Pedder. "Thomas Hughes." 'i "We present the sum of £300, to be levied and raised " on the South Riding at large, and by the Treasurer " paid over to Henry Pedder and Thomas Hughes, for " repairing 11,735 perches of the turnpike road leading " through Clonmel, from the city of Kilkenny to the city " of Cork, between Nine-mile-house and Glandujf-hridge. "—3 & 4 W. IV. c. 112, s. 92. Ordered for self and " fellow-jurors. "J. Bagwell, Foreman." \: W !ii The 92d section of 3 & 4 W. IV. c. 112, was as fol- lows : "And be it further enacted, that nothing in this " Act contained shall extend, or be construed to extend, " to take away from Grand Juries the power or the obli- " gation to repair any part of the roads to which this " Act is specifically applicable, but that it may be law- "ful for the Grand Juries of the counties of Carlow, '^Kilkenny, Tipperary and Waterford, and they are " hereby required to present, from time to time, such " sumSf to be levied on the counties at large, as shall "appear to be necessary, in consequence of the defi- [Juno 18 'low, Kilr from the lerfm'd, to county of )DER. JGHES." and raised Treasurer lughes, for ad leading to the city iujf-hridge. [)r self and reman." was as foi- ling in this to extend, or the obli- which this lay be law- of CarhrVt i they are time, such re, as shall of the defi- 1840.1 TIPPERARY PRESENTMENT, ROADS. 308 ciency of the tolls, for repairinfr any part of the said roads, or for making or repairing the bridges, quay walls, pipes, and gutters, thereon, or the footpath thereto, and also for repairing such parts * of [*3()9] the old road, as now are or shall be used as a public road, although a turnpike or turnpikes may be erected thereon, provided it shall appear that the receipts of such turnpikes are not sufficient for defraying the expenses of such repairs, such presentment and pre- sentments to be made on the like applications, and subject to the like inquiries and forms for accounting as are ordained and required by the Acts (a) now in force for the making and repairing of roads." It was insisted before Richards, B., the Judge of Assize, that the presentment in question was to be con- sidered as imperative, under the 3 & 4 W. IV. c. 112, s. 92, or at all events that it was such a one as the learned Judge might legally fiat. His lordship, how- ever, entertained considerable doubt as to the power of the Grand Jury to make the presentment, and therefore respited the fiating of it, in order to obtain the opinion of the Judges. The three objections which suggested themselves were as follows: First, that a particular mode of proceeding, and a distinct and ample remedy, were given by ss. 61 & 65 of the 6 & 7 W. IV. c. 116: Secondly, that that Act was a repeal of s. 92 of the (o) The principal Act then in force on tho subject, wan the .59 G, .3, c. 84 3i ■ 'Ij ^ i 'I I il ^ m .; , * i ifl !■'; i JEDD'S RESERVED CASES. [Juno 19 3 & 4 W. IV. c. 112: and thirdly, that even supposing it not to repeal that section, yet the Grand Jury had no power to pass the presentment, if thrown out or di.sap- proved of at the presenting sessions. Eleven Judges ( Woulfe, C. B., being absent) unani- mously held, that tlie presentment should not be fiated. [*310] IN the Matter of Presontmonts for the NORTH RIDING of the County TIPl'ERARY. Where, after the division of a county into two ridings by proclamation under the G 4S^ 7 W. 4, c. IKi, R, 17G, pi;t)sciitiucntH for thu north lidin^', fuundcd on con- tnicfs entered into ufter tiio division, were by niiHtnltc piisNed at tiie assizes for tlie soulii lidiny^: Hdd, timt tlie Judj^c of assize liad no power to r:!clify tho mistake by ordering tlie prescntmenta to be levied on the north riding. By a proclamation of the Lord Lieutenant and Council of Ireland, dated the 8th of November, 1838, and made in pursuance of the 6 & 7 W. IV. c. 116, s. 176, it was amonffst other thinjjs directed, that thenceforth the county of Tipperary should be divided into two ridings, one to be called the South Riding, and the other the North Riding, and that the town of Clonmel should be the assize town for the South Riding, and the town of Nenagh the assize town for the North; and it was also ordered, that no presentment should thenceforth be ' [Juno 19 nipposing ry had no , or disap- nt) unani- t be fiated. m RIDING lalion under the fouiiclfd on con. t the nssi/fs for ;r to nclity tho riding. ,nd Council , and made 176, it was ceforth the ;\vo ridings, e other the ;/ should be the town of it was also aceforth be 1840.] TIPPERARY PRESENTMENT. .110 made by the Grand Jury at Clonmel or Nenagh, of any sum of money to be levied olf tho said county of Tip- perary at largo, nor should any presentment be made by the Grand Jury of Clonmel of any sum of money to be levied off" any barony, or half barony, or denomina- tion in the North Hiding, except in the cases therein after provided; or by the Grand Jury at Nenagh of any sum to be levied off any barony, or half barony, or de- nomination in the South Riding; but that each of the said Grand Juries respectively should have power to present any sum, to be levied off* the whole of the riding, in and for which such Grand Jury should act, aF if each such riding were in itself a county at large. It was further ordered, that this proclamation should commence and take effect from the 10th day of December then next (1838); provided always, that all Presentment Ses- sions ordered, and all presentments and contracts made, or money to be levied, accounted for, or paid in the said county, under, or in consequence of any Act or Acts in force, before the *said 10th day of December, [*311] should be proceeded on, levied, and accounted for, and paid, in the manner provided for by those Acts, and subject to the rules, regulations, and provisions, con- tained in them, as if such proclamation and division of the county had not been made. Previously to the division of the county, the Secretary of the Grand Jury was in the habit of annually bringing on the contracts, which had before been entered into for m m HfpHV !i 311 JERB'R RESERVED CASES. [Juno 19 periods of years, and wliich were always passed by the Grand Jury, and fiutcd by tlic Judge as of course; and at the two assizes which intervened between the division of the county and tlie Spring Assizes of 1840, the Grand Jury at Chtimel, in pursuance of the provisions of the proclamation, passed the annual presentments for such contracts as usual, as well those which related to roads in the North, as in the South Riding. But at the Spring Assizes of Clonmel in 1840, (being the first assizes at which it became necessary to bring on such contracts as had been entered into subsequent to the division of the county) not only those which had been entered into previous to the division, but also those contracts which had been made at the Spring Assizes in 1839, as well for the North, as for the South Riding, were all brought on, and passed by the Grand Jury for the South Riding at Clonmel. This circumstance did not come under the notice of Richards, B. (the Judge of Assize), or of the Clerk of the Crown, until after the assizes of Nenagh, when the latter came in the usual way to make copies of the presentment books for the Treasurer; and as it appeared to him that the Grand Jury of one riding had no control whatsoever over any presentment originally passed by the Grand Jury of the other, he thought it [*312] his * duty to bring the matter before the Judge, as he did not conceive that under the provisions of the proclamation he would be justified in having those pre- sentments put on the levy with the others. The pre- sentments in question were all founded on contracts for [June 10 3(1 by the irse; and e division he Grand )ns of the ft for such \ to roads lie Spring assizes at contracts livision of tered into cts which 19, as well 11 brought th Riding under the , or of the f Nenagh, ake copies ; and as it riding had originally thought it the Judge, ons of the those pre- The pre- intracts for 1840.] TIPPERARY PRESENTMENT. 319 repairing roads for different terms of years, and if laid before the Grand Jury at Nenagh, they would have been passed without doubt, as of course. Tlie mistake, how- ever, of the Secretary of the Grand Jury was in bringing them before the Grand Jury at Clumnel, as if they had been contracts entered into before the division of the county. Richards, B., accordingly reserved for the opinion of the Judges the question: Could the Judge authorize the Clerk of the Crown to put these presentments, so founded on contracts entered into subsequent to the division of the county, on the levy for the North Riding; they having already been fiated by the Judge, under the circumstances above stated, at Clonmel, the assize town for the South Riding? Ten Judges (Dohertij, C. J. C. Pleas, and Woulfe, C. B., being absent) unanimously decided, that the Judge of Assize had no power to set the mistake right. I I I I i'!! j'!)}. »313 JEBB'S RESERVED CASES, [June 18 *Thc ATTORNEY-GENERAL, Appellant; WILSON, Respondent. The Attoincy-Gcncral is not liuWc *o deposit or give security for costs under the 6 & 7 VV 4, c. 7 "), s. 31, upon appenlinjr from a dismiss of u civil hill lir()iiy:lit by him iifraiiist a Hridjje Contriictor on his recojjiii/ance under the 6 &- 7 VV. 4, c. IIG, s. IfiS. On the hearing of such a civil hill it lies on the defendant to prove that the Bridfic was built, and not on the Attorney-Oeneral to prove that it was not. Semhle, that the amount of the sum to be dcciced in such a case is to be measured by the amount of actual damage sustained. At the sessions preceding the Spring Assizes for the county of Fermanagh, in 1840, the Attorney-General had proceeded by civil bills against several contractors for public works and their sureties, suing them on their recognizances under the 6 & 7 W. IV. c. 116, s. 168 (a). The assistant barrister in all these cases had dismissed without prejudice and without costs. The Attorney- General appealed, and on the hearing of these appeals before Foster, B., at the ensuing Assizes, some questions arose which he reserved for the opinion of the Judges. Amongst these were the following : :f ! I In the case of the Attorney-General v. Wilson (one of the civil bill cases in question) it was contended, that the Attorney-General was not at liberty to appeal, not having entered into any recognizance, nor deposited with the Clerk of the Peace double I he costs of the dis- (a) Vide soiled. Y of that Act, for the form of the recognizance. [June 18 HLSON, osts under the G liill liriiiifflit by ! 6 &, 7 VV. 4, c. li'iidant. lo prove rove tliiit it was li a case is to be zes for the ey-General contractors ;m on their , s. 168(a). 1 dismissed 1 Attorney- ese appeals le questions he Judges. Ison (one of ended, that appeal, not f deposited 5 of the dis- 1840.] ATTORNEY-GENERAL ». WILSON. S13 miss, under the 6 & 7 W. IV. c. 75, s. 31, and 6 & 7 W. IV. c. 116, s. 168. The first question therefore was, whether the Attorney-General, so suing, is bound to the observance of those preliminaries? In the same case, the work contracted for beino- the building of a bridge, the second question was, whether the onus of proving that the bridge had not been built was cast on the Attorney-General, or the mius of proving that it had been built, was cast upon the person sued? * The bridge, in point of fact, not having been [*314] built, the third question was, for what sum the Court should make its decree; whether for £72, which was the amount of the recognizance, or for £36, which was the amount of the presentment, or for some smaller sum? And in the latter case, by what principle the amount was to be ascertained? In the same case it appeared, that the bridge was to have been built over a stream in a bog, through which a new line of road was to be made. The contract for the making of that new line had been obtained, not by Wilson (the defendant), but by another person, who had not made the road, nor attempted to make it; and until that road should be made, it was nearly impossible that the materials for building the bridge could be brought to the place in question; in the mean time, the last day for building the bridge had passed. The fourth 49 m pp f ■i ' i i i iw . ., lit Mtj! 314 JEBB'S RESERVED CASES. [June 18 question was, what ought to be the decree of the Court, in reference to this latter circumstance? Eleven Judges having met ( Woulfe, C. B., being absent), the first question was decided by a large majority, and the second question unanimously, in favour of the Attorney-General; the decision being that he was not liable to pay costs, or to give security by recognizance, in the case proposed, and that the onus of proving that the bridge had been built lay upon the defendant. On the other questions, there was no deci- sion of the Judges, but from what appeared to be their general opinion, upon the discussion which took place on those points, Foster, B., considered that he should [*3 15] be enabled to dispose of the * remaining questions without requiring the Judges to give their opinions seriatim (a). (a) See this case {Attorney.General v. Wilson) in tlio court below, reported in 1 Cr. and DixV Circuit Cases, 447. From tlic conclusion of that rc|K)rt (p. 4">'J) it appears tliat the Icirncd Baron considered the third question (as stated in the text), to have been viewed by the Judges agreeably to liis own opinion, viz: — that tiie do- cree siiould be fnt tlie amount of damage actually ("I'^taincd. No iiiention is made of the point arising on tiie 4tli question. 'll [June 18 )f the Court, 1840.] REGINA t). MURPhY. 315 1 B., being by a large limously, in n being that security by liat the onus lay upon the was no deci- id to be their !h took place it he should ing questions leir opinions ; below, reported in at rc|)ort (|). 45:3) it s stated in the text), 1, viz:— tiiat tlic de- fc rucntion is made THE QUEEN v. PATRICK MURPHY. The prisoner wns indietcd for soliciting J. B. to murder C. M. The evidence wav, that the prisoner procurid salt pelrc and gave it to J. IJ. to he adiiiiiiisterrd to C. M. and that J. B. administered it aecordinglj-, and that C. M. detected the poison in time to save Iter life after having swallowed some of it. The Jury found the prisoner guilty; and stated tlieir opinion to he, that the Foiieitation was to adminii^ter salt petre with intent to poison, and that the salt pctre had been uttem|)ted to he ailnnnistetcd. Held, that the conviction was good, the prisoner iiaving been rightly indietcd, as a principal, for soliciting to murder, instead of as an accessary before the fiiet to the administering poison with in- tent to murder; and the 10 Geo. 4, e. 34, s. 9, not having been repealed by the 1 Vict. c. t>5, s. 3. At the Spring Assizes for Corh, in 1840, Patrick Mur- phy was tried before Perrin, J., on an indictment which charged that he on the 6th of February, 3d Vict., at Carrigshane, did feloniously propose to, solicit, encou- rage, and endeavour to persuade one James Barrett, feloniously, and of his malice prepense, to kill and mur- der Catherine Murphij, against the peace and statutes. The first witness was James Barrett, who swore that he was arrested for giving the prisoner's wife something. The prisoner was thatching for witness; he talked of poisoning — if he could get his wife poisoned. On an- other day he said, " I have a very bad wife, and a very "disagreeable one; and if you could give her a done, of "salt petre, *as I attempted; — the reason why, [*31G] " I have another in view; you'll come on Sunday morn- 81 316 JEBB'S RESERVED CASES. }i 4 [June 19 " ing, I'll get the salt petre at Mrs. Rees's.'' The wit- ness said he would, and on Sunday the prisoner took witness to Mrs. Rees's (a shop-keeper), and gave him a pint of porter, and a penny to buy salt petre, which the witnss got; the prisoner desired the witness to go and call on Catherine Murphy, and bring her down to a public house, kept by a Mrs. Blacket, and to get two pints of porter, and sweeten one of them well for her, that she might not taste the salt petre : witness went accordingly and brought her down, and ordered the porter to be well mulled and sweetened. The prisoner then advised witness to take Catherine Murphy into the far room, then to send her out for a penny bun, and when she went out, to put the salt petre in her pint; which witness did. When she came in she tasted the porter, and drank half of it; she perceived the taste, and took it to Mrs. Blacket, who said it had the taste of soot; Mr. Mansfield, an apothecary, said the same, but he examined it, and found the salt petre. Witness was accordingly arrested, and he informed against' the pri- soner. The second witness, Edruard Rees, stated, that he saw the prisoner and Barrett together, and Barrett asked for one penny worth of salt petre : witness gave him two ounces, which he gave prisoner. > III I : Michael Collins proved that he gave Barrett money ; saw him and the prisoner together; the prisoner said [June 19 The wit- isoner took Tave him a which the s to go and ' down to a to get two ^-ell for her, itness went ordered the 'he prisoner yiliy into the ly bun, and in her pint; le tasted the iie taste, and taste of soot; ime, but he Witness was linst* the pri- , that he saw rett asked for ive him two irrett money ; prisoner said 1840.] REGINA V. MURPHY. 316 to witness, that Barrett was annoying him for six-pence. Witness said, he would give it, and did so. Mary Murphy proved, that she saw Barrett and the prisoner's *wife get two pints of porter at Mrs. [*317] Blachet's, and that they brought them to them into the tap-room. Mrs. Murphy went out for a penny bun, and when she returned she took a pint, but did not finish it; one of the pints was mulled. ToUas Mansfield, an apothecary, stated, that he hap- pened to be passing, and saw two persons complaining of some porter being bad ; witness drained it out, and found salt petre at the bottom of the porter, which was warm. The woman complained of pain in her stomach, and witness gave her an emetic. She drank three- foUi-ths of a pint; witness thought it would cause serious injury. Richard Barrett stated, that he was present when the prisoner was arrested; witness said the police were coming to take him, and the prisoner asked, was the woman dead ? William Murphy, M. D., stated, that two ounces- of salt petre would poison any one. Richard Oates stated, that he found sab, petre in Barrett's pockets; and that he heard the prisoner say, i 317 JEBB'S RESERVED CASES. [Juno 19 r H ^ ivA 1 '' U ! 1 ^■'i|; ' t ■' 1' that his wife wished to spend all his money, and that the devil seemed to melt it. The case for the prosecution being closed, Flanagan, for tl:e prisoner, contended that the indictment was not sustained by the evidence; that the prisoner should have been indicted as an accessary before the fact, for administering poison with intent to murder, and not under the 9th section of the 10 G, IV. c. 34, it appearing by the evidence, that James Barrett (the approver) actu- ally administered the. salt petre to Catherine Murphy ; [*318] and that * the 9th section of the 10 G. IV. c. 34, making the solicitation to commit murder a capital fe- lony, was impliedly repealed by the subsequent statute of I Vict. c. 85, s. 3, making the attempt to administer poison, with intent to commit murder, a transportable felony. The learned Judge, however, after having heard the counsel for the Crown in reply, left the case to the jury upon the evidence generally, stating that he would reserve these questions for the consideration of the Judges; and he requested the jury, if they believed the evidence, and found a verdict of guilty, to inform him whether they were of opinion that the solicitation had been to murder generally, or to administer salt petre with intent to murder ; and that the salt petre had been administered, or only attempted to be administered. The jury found the prisoner guilty, and in compliance with the request of the learned Judge, informed him that they were of opinion that the solicitation had been [Juno 19 y, and that , Flanagan, ent was not )ner sliould the fact, for er, and not it appearing trover) actu- •ne Murphy; G. IV. c. 34, a capital fe- uent statute administer lansportable ifter having left the case iting that he isideration of hev believed ty, to inform e solicitation Iter salt petre itre had been idministered. Q compliance nformed him ion had been 1840.] CHARTERS v. GILROY. 318 to administer salt petre with intent to poison, and that the salt petre had been attempted to be administered. The question, whether the conviction, under the fore- going circumstances, was good, having been reserved for the opinion of the Judges, the case was argued before ten of their Lordships [Doherty, C. J. C. Pleas, and WouJfe, C. B., being absent), by Flanagan for the pri- soner, and G. Bennett for the Crown. Six Judges (BusiiE, C. J., Burton, J., Pennefather, B., Cramp- ton, J., Richards, B., and Ball, J.,) were of opinion, that the conviction was good. The remaining four held that it was bad. Perrin, J., subsequently recommended a commutation of the punishment, to transportation for life. CHARTERS, Appellant— GILROY, Respondent. [*319] Assistant Barristers have, under the 6 & 7 W. 4, c. TS, s. 2, jurisdiction to hear and determine disputes and differences respecting the possession of lands held from year to year. At the Spring Assizes for the county of Fermanagh in 1840, a question was raised before Foster, B., upon an appeal from a civil bill decree of the Assistant Barrister m] nis ' ,1?:: 919 JEBB'S RESERVED CAIT^S. [Juno 19 of the county, which 'he learned Baron reserved for the consideration of the Judges. The question vv^as, whether land which is held by a tenancy from year to year is within the meaning of " lands, tenements, and hereditaments, held under any " grant, lease, or other instrument," as these words are used in the 6 & 7 W. IV. c. 75, s. 2? Ten Judges {Dohertij, C. J., and Woulfe, C. B., being absent) unanimously held, that leases from year to year are included in the enactment. [*320] MURPHY, in Replevin, Appellant— BUTLER and Others, Respondents. i'<: The 6th section of the G & 7 W. 4, c. 75, prescribing a notice to be given by the party distraining to the party distrained, is mandatory. P fe' pi Hi ':' • ' The respondents, as trustees of the estates of the Earl of Carricli, a minor, distrained the appellant, a tenant holding from year to year, for rent. At the time of making this distress the respondents caused the follow- ing notice to be served on the appellant by their bailiff: •* Take notice that I have distrained your oats, consisting [Juno 19 ved for tlie ; held by a meaning of under any e words are C. B., being year to year 1840.] MURPHY V. BUTLER. BUTLER and ;e to be given by the ndatory. ies of the Earl ellant, a tenant At the time of used the follow- by their bailiff: r oats, consisting " of in or about 38 barrels, for rent and arrears of rent •' due to the trustees of the Earl of Carrick, on the lands ** of Newtown. " To William Murphy. "Oct. 7th, 1839. "Gregory Roach." On the 9th of October, 1839, the appellant obtained the usual replevin order from the Sheriff, and in that way obtained back his property which had been so dif.- trained. The replevin civil bill suit thus instituted came on before the Assistant Barrister at the followino- Quarter Sessions, when he dismissed the civil bill. From that decision the plaintiff in the civil bill suit appealed, and the case came on before Richards, B., at the Spring Assizes for the City of Kilkmnij, in 1840. The learned Baron was of opinion upon the merits with the respondents, and was prepared to decree for the respondents for the arrear of rent due to the gale day preceding the distress, and to order that the replevin bond entered into by the appellant should be assigned over. The appellant, however, insisted, that the notice served on him at the time of the distress was not con- formable to the * provisions of the 6 & 7 Wm. [*321] IV. c. 75, s. G {a), and that the learned Baron had no jurisdiction to make any decree against him; that whe- ther he owed rent or not, he was entitled to recover (a) Under which the particular of the rent demanded must specify the aniouiif, and the time or times when the same accrued due. 50 !'.■ I; 1 11 I 891 JEDB'S RESERVED CASES. [Juno 19 damages in the civil bill suit instituted by him against them; that the words in the Act of Parliament relating to the service of notice were not directory merely, but mandatory; and that the rcsjwndents not having served a notice such as prescribed by the Act of Parliament in distraining for rent, were trespassers. Contradictory decisions by various previous Judges upon the construction of this clause in the statute hav- ing been cited, the learned Baron reserved the following question for the consideration of the Judges : Whether he was bound to have made a decree in favor of the appellant on account of the insufficiency of the notice served on him at the time of the distress, notwithstand- ing that there was an arrear of rent due to the defend- ants at the time of the distress, and that the defendants had, in the opinion of the learned Baron, a lawful right to distrain for the same ? The Judges met to consider this case, which was discussed at considerable length on the 18th and 19th of June. On the latter day it was decided by seven out of ten Judges, {Doherty, C. J., and Woulfe, C. B., being absent,) that the clause in question is mandatory upon the landlord ; the other three Judges holding that it is directory only. I 1 [Juno 19 m against t relating eroly, but nnies were 5th day of aid county 1 to be pre- rrand Jury certify and d. is to be — that the m, is to be f Costelloe, 1840.] MAYO PRESENTMENT. 334 i "in said county; and that the sum of £1145 75. 11 1 J., "bein1. Cai'un t^ Fcnnaiuigk Prcscnlmculs. Pago '4Ui COLLECTOR. {See TuKAsuREti, 2.) CONFESSION. 1. Confession admissible, altlioiigh apparently induced by the acts of the parties who concUictcd the prisoner to gaol ; those acts being calculated to excite, not fear of temporal punish- ment, but liorror at the recollection of the crime. Hex v. Gihneij. 15 2. Parol evidence of a confession held to be admissible, it being proved that the confession was not taken down in writing whilst the prisoner was before the magistrate ; although there was no proof that ! ''ad not been put into writing within two days, under '0 Car. 1. Sess. 2, c. 18. Rex v. Kinsley. 07 a. The prisoner was convicted upon n confession made to a person who cauti(jncd him not to say any thing to criminate himself; but this conlession was merely the second repetition of a former confession made to another person who had pre- viously said to the prisoner, "the evidence at the inquest was so clear against you, that there can be no doubt you are the guilty man." Held, that the conviction was right. Rex v. Bryan. 157 CONSOLIDATED FUND. 1. Held, that a presentment for the repayment of money ad- vanced by the Lord Lieutenant out of the consolidated fund, under the 58 G. IIL c. 47, and 2 Wm. IV. c. 9, to the Boards of Health established in ditlbrent districts of a county, should be raised oil" the county at large, and not off the respective districts. Mayo Presentment. 171 2. Held, that the G. IV. c. 101, s. 5, and the 1 and 2 Wm. IV. c. 33, s. 107, as to presentments by Grand Juries of sums equal to those advanced out of the consolidated fund, for the I^R^u TO Tin: PRINCIPAL MATTERS. 411 ' Act, :i & I Lliiccd by the (J gaol; those poral piinish- •uuc. Hex V. 15 ssiblc, it being vn in writing ilthough there .vriting wiliiin 18. Hex \. 07 ion made to a g to criminate !ond repetition I who had pre- he inquest was bt you are the riglit. Rex v. 157 of money ad- jsolidatcd fund, , to tiie Boards county, should ■ the respective 171 ! 1 and 2 Wm. I Juries of sums cd fund, for the CONSOTJDATliD V\lK])—cnv>!nuc,l. repair of ritiids, wore inip.)rativo upon the Craiid Jury. AVy.v- aniimoa Presfiitimuts. Page Wi W. The Jiiilgo may make an order for the repayment of advances out of the consolidated fund, under the (i CI. IV. c. .'it, s, 2, although the assizes next after tiie order of council had been passed by. Curhw Prcsenlincnt. Page INH .See TUKASUIIEU, (JoVKllNMKNT AuVANCES. CONTIIA FORMAM STATUTL Held, that it was no valid objection that an indictment for ab- duction (under the 11) CJ. 2, c. l.'J,) concluded against the form of the " statute" instead of " statutes." Hex v. Browne, iil CONTRACTOR. A presentment in the form of a general authority to the trea- surer to 1, .ike advances to contractors in every case where the sum should exceed £20, held not to be warranted by the .3 and 1 Wm. IV. c. 7S, s. 41). (0 and 7 Wm. IV. c. IKt, s. laH.) Co. WicMow Presentmenl. 101 See Bill no Es, Roaus. CONVICTION. On the trial of an accessary before the fact to a felony, the proper evidence of the conviction of the principal felon at a former assizes for the same county, is a record of the con- viction, and not the crown book. Rex v. Du:ycr, 198; Regina Y. Robinson. 280 CORONER. 1. A person who acts as a coroner merely within the limits of a borough, is a coroner within the meaning of the and 7 Wm. IV. c. 110, s. 97, so as to entitle him (o a presentment. The maximum presentable for each Coronc, under the and 7 Wm. IV. c. 11(>, s. 97, is £2 for each inquest, even al- though that should exceed £30. Cumin Presentment. 211 2. The maximum presentable for all the Coroners in the county of Ca van, is £90. I hid. 3. Where £90 is the maximum presentable for all the Coro- m *-'iii •" If ■i; 4 'f il! 413 INDEX COnO^EU— continued. ners of a county, if the number of inq,iests has been such that a payment of £2 for each inquest would make a sum exceeding £'M) hi the whole, then each Coroner is to abate according to his number of inquests, until the sum is reduced to £90. Page 211 4. Where the magistrates at sessions left blanks in some of the numbers in the schedule relating to presentments for coro- ners, on account of doubts which they felt as to the sums to be inserted ; held, that it was competent to the Grand Jury to fdl up these blanks, after having been advised by the Judge, notwithstanding the o and 7 Wm. IV. c. 110, s. 47. Jbld. 5. Quaere, whether the maximum presentable for all the Coro- ners of a county is to be regulated by the number of Coro- ners allowed by schedule S of the G and 7 Wm. IV. c. 116, or by the actual nuiiiltcr of Coroners, where the number is less than the scliedule of the Act allows? Ibid. C. The magistrates and cess-payers at presentment sessions have power to reduce the sum ordered by a Coroner to be paid to a medical witness, under the 6 and 7 Wm. IV. c. 116, s. 99; and the Grand Jury have no power to increase it afterwards, so as to make it conformable to the Coroner's order. The Judge at the assizes must fiat the presentment as it came from sessions. Co. Clare Presentment. 247 COUNSEL. See Reserved Casks. COUNTY. See PuESENTMENT. 1.'?. COURT HOUSE. 1. A presentment of a sum for additional works done in a new Court house, not included in the original contract, is illegal, under the H'S G. HI. c. 131. Caoan Presentment. 45 2. A traverse does not lie to a presentment for a new county Court house, duly made according to the 53 Geo. III. c. 131. Cork Presentment. \n s been such malie a sum r is to abate 111 is reduced Page 211 1 some of the Its for coro- 1 the sums to Grand Jury 'ised by the IV. c. 110, Ibid. all the Coro- ibcr of Coro- i.lV. c. 110, ic number is Ibid. sessions have r to be paid 1. IV. c. 110, 3 increase it :lie Coroner's I presentment nl. 247 lone m a new net, is illegal, '.nt. 45 1 new county 30. III. c. 131. 117 TO THE PltlNCIPAL MATTERS. 413 COWS. Cows arc not chattels within the meaning of the 9 Geo. IV. c. 55, ss. 40, 41, 42. Rex v. Denenij. Page 255 CRIERS. 1. Criers are not prohibited by statute from taking any fees, except those which had been formerly paid by presentment, and are now commuted for salary.— ScliedLiJc o'' fees to which the crier is entitled. Li re Officers' fees. 33 2. The fee of 5*. paid by the party traversing to the Crier upon the trial of a road traverse for damages, is a lawful one, and may be received by him, notwithstanding the and 7 Wm. IV. c. lie, s. 110. But it is not to be included in the verdict as part of the damages sustained. Fermanagh Traverse, 222; Clare Presentment. 272 DEGRADED CLERGYMAN. 1. An exemplification of the sentence of degradation under the episcopal seal is not necessary evidence to support an in- dictment against a person alleged to be a degraded clergy. man, for celebrating a marriage between Protestants. Rex V. Stonase. 121 2. On the trial of a degraded clergyman for celebrating a mar- riage between a Protestant and a Roman Catholic, nn entry, signed by the Rcristrar of the Consistorial Court, of the sen- tence of degradation, in a book, wliich contained also an entry of the previous proceedings, is sufficient evidence of the degradation. Rex v. Sandys. iQG DEMANDING WITH INTENT TO STEAL. The demand of a gun from the owner's mother, in the house of the owner, where his mother lived, is sufficient to support an indictment for demanding property with intent to steal, although the gun was not in the house, or in the mother's possession, at the time of the demand. Rex v. JWDennet. 148 DESERTED CHILDREN. Held, that under the 11 & 12 Geo. III. c. 15, and 13 is. 14 Goo. III. c. 24, there could be only one order for a sum not exceed- in.j £5, for each deserted child. Armagh Presentment. 184 414 INDEX - H i' ^!l DESERTER. The traverser was indicted under the Mutiny Act of 1834, for voluntarily delivering lumsclf up as a deserter, and was aUo presented as a vagrant. Tiie jury found against the traverser upon the indictment, and for him upon the presentment. Held, that no judgment could be pronounced against him, and that he ought to be discharged. Rex v. JM'Clushj. Page 102 DISPENSARIES. See Medical Charities. DRAFT. A person finding a draft upon a banker, and tendering it for payment, with the intention of converting tlie proceeds to his own use, knowing, at the time, that he is not the person en- titled to receive the amount, is guilty of felony. — " Draft and order for payment of money," is a suflicient description within the meaning of a statute which makes the stealing of a warrant for payment of money," felony. Rex v. Beard. 9 DWELLING-HOUSE. An indictment for burglary in a gate house, stating it to be the dwelling-house of the gate-hceper, is bad. An indictment under the Whiteboy Act for an injury to a gate- house, stating it to be the " dwelling-house and habitation" of the gate-keeper, is sufficient. Rex v. Cahill. 36 ELECTION NOTICES. See Clerk of the Peace, 1. EMBEZZLEMENT. The prisoner was a runner of the bank of Ireland till six o'clock every day, and after six to G. and W., public notaries. Be- fore six o'clock one day he received from D. money to pay bills of exchange, which had been discounted by the bank, and of which, owing to some mistake, payment could not be received at the bank. The prisoner promised to pay them at the olFice of G. and W. The same evening, after six o'clock, he paid a part only, and returned to B. some of the bills, as if they had been paid, keeping the rest of the money TO THE PRINCIPAL MATTERS. 415 of 1834, for lul was aUo he traverser Dresentment. against him, ■. M'Clushj. Page 102 dering it for occcds to his ic person en- -" Draft and t description le stealing of ; V. Beard. 9 ? g it to be the jry to a gate- id habitation" 30 till six o'clock 4 notaries. Be- money to pay ( by the bank, It could not be 1 to pay them ling, after six B. some of the t of the money EMBEZZLEMENT— con//H7/erf. and hills. Held, that the bills and money were received by ' the prisoner as the servant and clerk of G. and W., and that therefore a conviction for embezzlement in that character under the statute was good. Rev v. Gourlay. Page 83 ESCAPE. Where a prisoner was convicted upon an indictment under the 51 Geo. III. c. 03, s. o, for an escape from prison, the former conviction (which was proved by a certificate from the crown office,) having been under the 1 Vic. c. 87, ss. &, 10, and the sentence six months' imprisonment: Held, that the' conviction was bad, as the escape did not come within the 51 Geo. III. c. 03. Rcgina v. Meamj. 240 EVIDENCE. 1. A man jointly indicted with others, and who has pleaded not guilty, cannot be a witness for the prosecution, whilst his plea stands. Rex v. Ryan. 5 2. The prosecutor's wife is a competent witness for the defence. Rex V. Houlton. 24 3. It is no objection to the testimony of a wife that she is brought to contradict the testimony of her husband. Ibid. 4. Where husband and wife are both concerned in a highway robbery, the presence of the husband is only presumptive evi- dence of coercion exercised by him over the wife. Rex v. Stiiplelon. 03 5. The passing of a presentment is prim^ facie evidence of the legality of proceedings under the 59 Geo. III. c. 84, on the part of a person who has obtained a road presentment. Queen's County Presentment. ^q 0. The receiver of a stolen promissory note was indicted for a substantive felony under the 9 Geo. IV. c. 55, s. 47; and a witness for the crown proved that he (witness,) had stolen the note; but it appeared on his cross-examination that he had been tried for the larceny and acquitted, a fact of which the Judge liad judicial knowledge. Held, that the acquittal of the principal was not conclusive evidence of his innocence, 416 INDEX S iH ii' : E VlDENCE—covtimied. but that the Judge was right in leaving to the jury the fact of the acquittal, together with the witness's averment of tlie tlicft. Rex V. M'Cue. Page V20 7. An exemplification of the sentence of degradation under the episcopal seal is not necessary evidence to support an indict- ment against a person alleged to be a degraded clergyman, for celebrating a inarriage between Protestants. Rex v. Stonage. 121 8. On the trial of a degraded clergyman for celebrating a mar- riage between a Protestant and a Roman Catholic, an entry signed by the registrar of the Consistorial Court, of the sen- tence of degradation, in a book, which contained also an enlry of the previous proceedings, is sufficient evidence of the degradation. Rex v. SanJi/s. 1G6 9. Where a witness, after having been exainined for the prose- cution, fainted shortly after the commencement of his cross- examination, so as to render it impossible for liim to give any further evidence: Held, by seven Judges against five, that a conviction upon such evidence as had been already given by this witness, taken together with the evidence of other witnesses, was good. Rex v. Doolin. 123 10. The demand of a gun from the owner's mother, in the liouse of the owner, where his mother lived, is sufficient to support an indictment for demanding property with intent to steal, although the gun was not in the house, or in the mother's possession at the time of the demand. Rex v. JWBennet. 148 11. An indictment for sending to the Lord Lieutenant a false recommendation of persons convicted, charged that the pri- soner forged the signature of "T. King, rcct6r of T.;" the evidence was, that the name forged by the prisoner was " T. Knox, rector of T." The Judge having given leave to amend, by substituting "Knox" for "King:" Held, that there was no fatal variance on the ground of its appearing in evi- dence that T. Knox was in fact rector of A. and that there was no such parish as that of T. Held also, that proof of ^W^WfT TO THE PRINCIPAL MATTERS. 417 jry the fact ment of the Page 120 n under the rt an indict- clcrgyman, its. Rex V. 121 ating a mar- lie, an entry :, of the scn- ined also an evidence of 166 for the prose- of his cross- hini to give against five, been already ; evidence of 123 lother, in the is sufficient to with intent to sc, or in the land. Rex v. 148 utenant a false :d that the pri- tbrofT.;" the prisoner was (riven leave to lold, that there Hicariiig in evi- and that there , that proof of . EVIDENCE— con^mMci. the document which contained the false recommendation being in the prisoner's handwriting, and dated in the county in which the venue was laid, was sufficient evidence of acts done in that county. Rex v. Dinjer. Page 198 12. To prove a conviction which took place at a former assizes, the record thereof, and not the crown book, is the best evi- dence, /i/^. 13. On the trial of an accessary before the fact to a felony, the proper evidence of the conviction of the principal felon at a former assizes for the same county, is a record of the con- viction, and not the crown book. Regina v. Robinson. 286 See Accomplice, Bigamy, Civii, Bill, Confession, Forgery, Handwriting, Manslaughter, Perjury, Poisoning, Shoot- ing AT, Unlawful Oaths, Whiteboy. EXCISE. The Grand Jury having rejected a presentment for the repay- ment of the Collector of Excise, under the 7 Geo. IV. c. 74, - s. .50, and the Judge at the same assizes having omitted to add the amount to the Treasurer's warrant, under s. 132 of the same Act: Held, that the Judge at the assizes next but one after had author-ty to order it to be so added. Galwaij PrestnlmenU 160 FAC SIMILE. Held, that a prisoner might be convicted of utterinfr a forfred instrument, although the instrument when given in evidence was so mutilated that it could not be decyphered without the aid of a fac simile. Rex v. Woods. 115 FEES. See Burning, 3, Clerks of the Crown, Criers, Traverse, 3. FELONY. 1. A person finding a draft upon a banker, and tendering it for payment, with the intention of converting the proceeds to his own use, knowing, at the time, that he is not the per- son entitled to receive the amount, is guilty of felony. 63 \ 41U INDEX I I ;:,i! i If M ..^^ b a ' l\ lis ■ -3 FELONY— contlntted. "Draft and (mier for payment of money" is a sufficient des- cription witiiin the meaning of a statute ^vllicll makes the stealing of a warrant for payment of money, felony. Hex v. Beard. Page 9 2. The 27 Geo. III. c. 15, s. 10, so far as it rehites to the tail- ing of arms, without the consent of the owner, is repealed by the 1 and 2 VVm. IV. c. 44, s. 2, and thcreiore an indict- ment for such an oflencc, as for a felony, cannot be supported. Rex V. Maguire. 132 FORGERY. 1. An indictment for having in possession a forged note of the Royal Bank of Scotland, with intent to utter it, cannot bo supported at common law. Rex v. Fulton. 48 2. The prisoner was convicted on an indictment for having in his possession a forged note of the Bank of Ireland. The first count set out the note, with the name of a signing clerk annexed ; the second set it out, as if the name of the signing clerk had been obliterated. The note, when produced, agreed with that set out in the second count ; but no evidence was given as to the obliteration. Held, that the conviction was bad. Rex v. Getty. 59 3. Where the prisoner was present at a sale of goods by the prosecutor to a third person, (who was introduced by the prisoner to the prosecutor, as a purchaser,) and took up a bank note given by that person in payment, saying that it was good, and that he would make it good ; and desired the prosecutor to write his (prisoner's) name upon it ; the note proving a forgery, held, that there was sulficient evidence of uttering by the prisoner. Rex v. Cushlan. 113 4. Held that a prisoner might be convicted of uttering a forged instrument, although the instrument, when given in evidence, was so mutilated, that it could not be decyphered without the aid of afac simile. Rex v. Woods. 115 5. Conviction for forgery. The indictment stated that the pri- soner falsely altered a receipt for rent, which, previously to I »m».-™i i ■"Tli TO THE PRINCIPAL MATTERS. 419 [licicnt dcs- makcs tlic ly. Rex V. Pogc 9 to the tak- is repealed c an indict- 3 supported. 132 note of the t, cannot be 48 K having in ila7id. The igning clerk ' the signing jced, agreed i^idence was iviclion was 59 oods by the uced by the d took up a lying that it 1 desired the 1 it ; the note ; evidence of 113 rinij a forged 1 in evidence, 3red without 115 that the pri- previously to FORGERY —conlhiued such alteration, was as follows: — "Ennis, 3d April, 1837, Received from J. and J. G., £7 7s. Id. on account of rent," &c. "as at foot. — P. Curtin. Dec. 3d, cash per J. G., £3 its. Cash this day, per do. £4 Is. 7fZ.; total, £7 7s. 7d." Th.e alteration was ctlected by erasing the lines following the words " P. Curtin." The indictment did not state any further circumstances, showing that such an erasure constituted a forgery ; but it appeared in evidence that two separate re- ceipts had been previously given for the two sums mentioned in the erased lines, and that tlie prisoner's object was to get credit fin- the other sum as a separate payment. Held, that the conviction was right. Sen:ble, that reading out a document, although the party refuses to show it, is a sufficient uttering. Regina v. Green. Page 283 FOUNDLING. See Deserted Chfldren. GAOL. 1. The Judge of Assize has a discretion to withhold his appro- bation to the appointment by the Grand Jury of a new Inspector of a county gaol, under the 7 Geo. IV. c. 74. Cavan Presentment. 95 2. Where the magistrates and cess-payers at a special sessions under the 3 & 4 Wm. I 7. c. 78, had reduced the gaoler's salary from its former amount; Held, that the Grand Jury at the assizes following had power under the 7 Geo. IV. c. 74, s. 04, (notwithstanding the 3 & 4 Wm. IV. c. 78, s. (5!),) to present for the full amount of the former salary. Drogkeda Presentment. 194 See Medical Officers, 1. GATE HOUSE. See Burglary, Whiteboy. GOVERNMENT ADVANCES. An application having been made, by direction of the Lord 430 INDEX GOVERNMENT ADVANCES— continued. Lieutenant, to a Grand Jury, to present the amount of arrears due to government 1» years before, for advances made by government for a board of liealth, and the Grand Jury hav- ing' refused on account of the length of time which had elapsed; Held that the Judge of Assize was authorized to make an order for the amount, under s. 179 of the 6 and 7 \Vm. IV. c. 116. Queen's Countj/ Presentment. Page 235 GRAND JURY. See Presentment. HANDWRITING. 1. To negative hanawriting, it is sufficient evidence if the sup- posed writer can state his positive knowledge, /rom circum- stances, that the writing cannot be his, although he also states that he canno'., even upon his belief, on a mere inspection of the writing, say whether it is his or not. Rex v. Walsh. 38 2. Evidence of the prisoner's handwriting by a witness who had never seen him write, but who swore he was enabled to form a belief from opportunities which he hfid had of knowing his handwriting, independently of comparison ; Held sufficient, without any other evidence that the prisoner knew how to write. Rex v. Mara. 75 HARD LABOUR. See Sentence, 1. HUSBAND AND WIFE. 1. The prosecutor's wife is a competent witness for the defence. It is no objection to the testimony of a wife that she is brought to contradict the testimony of her husband. Rex v. Houl- ton. 24 2. Where husband and wife are both concerned in a highway robbery, the presence of the husband at the commission of the offence, is only presumptive evidence of coercion exer- cised by him over the wife. Semble, that in a case of high- way robbery, coercion by the husband is not a defence for the wife. Rex v. Stapleton. 93 of arrears I made by Jury liav- which had thorized to he 6 and 7 Page 235 I if the sup- om circum- } also slates ispection of Walsh. 38 atness who ^as enabled lad had of omparison ; .he prisoner 75 the defence, le is brought ?ex V. Haul- 24 1 a highway mnfiission of jrcion exer- ase of high- defence for TO THE PRINCIPAL MATTERS. 481 INDICTMENT. 1. An imiiclmcnt under the 27 Geo. HI. c. 1.5,8. 10, will bo suslaiiiod by evidence of supplying aninumitidn to a person who only pretended to get it for the use of the Whiteboys. Ri'x V. IlcJ'ernan. Pair'e 2 2. Indictment for inciting persons not to enter into the employ- ment ot H. S. The evidence showed that those persons had entered into the employment of, and worked for II. S. The prisoners being convicted, two questions were reserved — first, whether the oilence charged was an offence at common law; and secondly, if it were, whether the evidence supported the indictment. Held, that the indictment was bad, and the conviction wrong. Rex v. Peltit. 151 8. An indictment charging that the prisoner did, by threats and menaces, threaten violence to the person of one J. G., in the event of his not taking back into his employment a certain man whom he had then lately before discharged from his service, is bad. Rex v. Plannery. 243 And see the different heads. INFIRMARY. ' See Medical Officers, 3, 4, 5, Medical Charities. INSPECTOR. See Gaol. JUDGMENT. See Sentence, JURY. 1. A juror having been by mistake entered upon the panel, and called and sw^rn by a wrong name, and an objection having been taken before verdict; held, thpt there was a mistrial. Rex v. Deleany. gg 2. Where on a trial at a special commission, the jury could not agree, and after remaining a long time shut up, were dis- charged by the court, (no consent being given by the counsel on either side,) in consequence of the physician's report that a longer confinement would endanger the lives of some of INDEX ■ VJ JURY — con finned. lliiMii ; Hc/d, that llioy woro properly so (lisclirircjcd, niul that tlio prisoners woro Iriahlc again; and tliat tliuy niiulit, liavu been tried at the same conmiission if the Judge had thought proper. Jir.r v. Jhirrclt. I'n^e lOJI 3. Where the Judge took it upon himself to discharge the jury, in cnnse{|uence of a statement upon oath hy one of the jurors, (without the examination of a me(li(;al man,) that his life would be endangered by a longer eonllnement, and to remand the prisoner; Jleld, that the Judge had acted rightly, and that the prisoner was not entitled to bo discharged. Rex v. Dchtiuj ^' C/iccvers. 100 4. The prisoner peremptorily challenged one of the jury on his coming to the book ; the Court refused to receive the chal- lenge, and the juryman was sworn. When judgment was about to be pronounced, the prisoner's counsel tendered a plea, praying a reverse of the judgment, because of the chal- lenge not having been allowed, vvhich plea the Court refused to receive. Held, that the Court was right in refusing to receive it. Ilex v. Mams and Langlon. 13.5 6. Since the passing cf the and 7 Wm. IV. c. 11(5, no pre- sentments can be made to remunerate clerks of the peace for providing and copying jurors' books, and preparing i)rc- ce|)ts and returns under ss. 5 & !) of the Jurors' Act, 3 & 4 Wm. IV. c. 91. Cavan Presentment. 210 C. After the prisoner had been given in charge, it appeared that the prosecutrix, a child of four years of age, did not sulFi- ciently understand thr .laturcof an oath; and it was admitted on the part of the crown, that there was no other evidence to sustain the case. Held, that the prisoner was entitled to an acquittal. Rcgina v. Oulughan. 270 I LARCENY. 1. A person entrusted to drive a number of sheep a certain distance, and on the way separating one of them from the rest, with the intention of fraudulently converting it to his own use, is not guilty of larceny. In such a case the animus ir H TO THE PRINCIPAL MATTERS. 493 I, and that night liavo nd thought Pa ire lOU re thi; jury, ' the jurors, liat his nib 1 to remand rightly, and cd. 'R(--i- v. 100 ! jury on his ive the chal- dgmcnt was 1 tendered a I of the chal- Jourt refused n refusing to 135 lU), no pve- of the peace ircparing pro- s' Act, 3 & 4 210 appeared that did not sulH- was admitted Mhcr evidence kvas entitled to 270 hccp a certain them from the sorting it to his case the animus LARCENY— cnvtinnc.fl J'nmnili upon the original taking should ])o loft to tlio jury. Rex V. llrilhj. Pii<<;c ijl 2. The prisoner was convicted on an indictment purporting to be for highway rohliery, hut omitting the words as lo hiln'itg from the person of the prosecdtor. Ihld, that this was a had conviction fur highway rubbery, but good fur larceny. Rcr, V. Rogun. 02 LETTERS. hi an indictment for robbing a mail of a bag of letters, it is not necessary to state an asportation, but it is sullicient to use the words of the statute. Rex v. Rossilcr. 60 LUNATIC ASYLUM. See Medical Charities, 4. MALICE. The prisoner was convicted upon two indictments, one for shooting at A. with intent to kill him, and the other for shoot- ing at B. with intent to kill him; the jury finding that ho intended to kill wliicliever the shot should strike, but not both. Held, that lie was rightly convicted. Rex v. Larldn. GO MALICIOUS INJURIES. Held, by six Judges against five, that s. 70 of the 3 & 4 Wm. IV. c. 78, repealed all former laws on the sui)ject of mali- cious injuries to property, and that therefore the malicious burning of a pew in a Roman Catholic clia[)el, while tho country was in a state of distiu-bance merely arising from an election, was a proper subject for compensation, though not an injury under the Wliiteboy Act, and that the notices and examinations required by tho former laws were no longer necessary. Carlow Presentment. 180 See Burn IMG. MANOR COiniT. Held, that a seneschal of a Manor Court, within the jurisdiction of which there was no local prison, was not liable under the INDEX MANOR COVUT— continued. 7 Gen. IV. c. 71, s. OS), to pny for iho siipjinrt of prisoners in the cnmily ;;!iol, iiiidcr cxcciiliitii rntiii tlio Manor (Nmrt ; llio sciius»;liiil not bciii^ nhlu to refuse exuciilioii'i, nor paid by fees upon llicm, nor allowed to direct the process to any one except the perinaiient buililfs, who were so jjaid. Co. Antrim Prescnlincnt. Page 239 MANSLALICIIITER. 1. A conviction for manslaughter is sustainable, although there has been no coroner's imiucst, or examination of the body, or evitlenco of medical witnesses, ns to the cause of death, it being sutficicnt if the cause of death bo proved by circum- stantial evidence. Rex v, Dvgherty. 00 2. Shooting a sheriff's bailiff who attempts to arrest under a warrant regular on the face of it, but dated prior to the writ on which it is founded, held to be manslaughter only. Rex V. Deleavy. 88 MARRIAGE. See Bigamy, Degraded Clergyman. MEDICAL CHARITIES. 1. Where a dispensary has been established, and all the requi- sites prescribed by section 81 of the 6 & 7 VVm. IV. c. 110, performed, it is obligatory on the Grand Jury to make the presentment required by that section, and they cannot refuse to make it on the ground that they consider it unnecessary. Kerry Presentment. 277 2. In the case of fever hospitals, the Grand Jury have a discre- tion to present less than the amount of private subscriptions, under s. 81 of the «k 7 Wm. IV. c. 110. Quaere, whether they have any such discretion in the case of dispensaries under that Act? Ihid. 3. Held, that they had such a power under the 58 Geo. III. c. 47. Queen's County Presentment. 130 4. A presentment at a summer assizes, for a lunatic asylum depot, not connected with any house of industry, is bad, under TO THE rUINCIPAL MATTERS. 485 inoncrs in ;()iirt ; tho )!• paid by to any oiio Co. J lit rim Puge a30 oiigh there " tlio body, ;e of death, by circurn- 00 3st under a • to the writ only. /?ea; 88 all the requi- I. IV. c. 116, to make the ;annot refuse unnecessary. 277 lave a discre- siibscriptlons, icerc, whether dispensaries Ibid. )8 Geo. III. c. 130 matic asylum , is bad, under MEDK^AT. CU\ll\T]EH-contirnicfl. s. 81) of the (J and 7 Wm. IV. c. 110. R'ari/ Preseiiti/init. Ptige 5i77 MEDirAI. OFFIC.nilS. 1. Where there was but one medical officer to a county ganl, the (irand Jm'y were bound to present for him the eiitiro sum mL'utiniiod in tho schedule to the 4 Ceo. IV. c. 43. IVidilow Prcscnlmcut. I'd 2. A medical olliccr cannot be lawfully appointed by a county CJrand Jury for a bridewell. The amount f)f a bill for medi- cines for prisoners in a bridewell may be presented, if for- nishcd by the apothecary of tho county giol, but not other- wise. IVicUow Prcscnlmcut. 44 3. A f)rescntmcnt of a salary to a surgeon for attending a gaol under the 7 G. IV. c. 74, s. Tii, in addition to his salary under the 5 G. III. c. 20, and 54 Geo. III. c. 02, (Infirmary Acts,) held to bo illegal. Cavan Presentment. 80 4. Held, by six Judges against five, that the and 7 Wm. IV. c. 110, s. 80, does not render it imperative upon tlio Grand Jury to make a presentment for the surgeon of the infirmary who tenders his services to the prisoners in the gaol, where there has been a surgeon previously appointed for the gaol by the Grand Jury, and paid by presentment. Munugliaii Presentment. 217 5. A presentment of £300 a-year for two surgeons of a county infirmary, out of the funds of the institution, (which funds consisted of money supplied by presentment, of public money under the 5 Geo. III. c. 20, and of subscriptions,) held illegal. Clare Presentment. 874 MEDICAL WITNESS. The Magistrates and cess-payers at presentment sessions have power to reduce the sum ordered by a coroner to be paid to a medical witness, under the 6 & 7 Wm. IV. c. 110, s. 99; and the Grand Jiny have no power to increase it afterwards, so as to make it conformable to the coroner's order. The Judge at the assizes must fiat the presentment as it came from sessions. Co, Clare Presentment. 347 54 42C INDEX -f? '^i MISTRIAL. A juror having been by mistake entered upon the panel, and called and sworn by a wrong name, and an objection having been taken before verdict: held, that there was a mistrial. Hex V. Dekanij. Page 88 MURDER. 1. An indictment against a woman for the murder of her child, not stating that the child was born alive, but stating that it was exposed by the prisoner, and in consequence "languished, and languishing did live for half an hour, and then died," and "that so the prisoner did kill and murder the child in manner aluresaid," is good. Semhle, that an indictment for the murder of a "certain male child," without further des- cription, is insufllcient. Regina v. Kel/i/. 299 2. Where the Judge omitted, in pronouncing sentence on a conviction for murder, to order that the bodies of the pri- soners should be buried within the precincts of the gaol, as directed by the 4 and 5 Wm. IV. c. 2G, s. 2; but on a sub- sequent day, on ruling the book at the close of the same assizes, in the absence of the prisoners, ordered the clause in question to be inserted; held, that the sentence was illegal, notwithstanding the 6 and 7 Wm. IV. c. 30, s. 2. Regina V. Hartnell y„.p ]45 6. Applications for presentments cannot be legally made after the precise day appointed by the Grand Jury for holding the sessions, where there has been no meetit)g on, or adjourn- ment from, that day. Co. Tyrone Presentment. 147 7. Held, that a presentment for the repayment of money ad- vanced by the Lord Lieutenant out of the Consolidated Fund, under the 58 Geo. III. c. 47, and 2 VV. IV. c. 9, to the Boards of Health established in different districts of a county, should be raised off the county at large, and not off the respective districts. Mayo Presentment. 171 8. Held that the G Geo. IV. c. 101, s. 5, and the 1 & 2 Wm. IV. c. 33, s. 107, as to presentments by Grand Juries of sums equal to those advanced out of (he Consolidated Fund for the repair of roads, were imperative upon the Grand Jury. Roscommon Presentments. 173 9. A presentment in the form of a general authority to the trea- surer to make advances to contractors in every case where the sum should exceed £20, held not to be warranted by the 3 & 4 VV. IV. c. 78, s. 49, (6 & 7 Wm. IV. c. 1 16, s. 128.) Co. Wicklow Presentment. 191 10. Where the magistrates at sessions left blanks in some of the numbers in the schedule relating to presentments for coroners, on account of doubts which they felt as to the sums to be inserted; Held, that it was competent to the Grand Jury to fill up these blanks, after having been advised by the Judge; notwithstanding the 6 & 7 Wm. IV. c. 116, s. 47. Cavan Presentment. 2II 11. The construction of the 6 & 7 Wm. IV. c. 116, s. 1, is, that no presentment can be lawful unless authorized by an enactment, or an express exception, in that statute. Cavan Presentment. 216 12. Where an application for a public work (a bridge) had been brought forward at presentment sessions by two cess 433 INDEX l\ PRESENTMENT— con, previous to the commence- ment of the Assizes, should be given previous to the swearing of the Grand Jury for fiscal business. Such traverse, when entered too late at one Assizes, cannot be tried at the next. Co. Kilkenny Presentment. 102 3. A Fee to the Judge's Crier, upon the entry of each road traverse for damages, is legal, notwithstanding the 6 & 7 Wm. IV. c. 110, s. 110. Qucere as to the legality of a Fee to the Clerk of the Crown under the same circumstances. Clare Presentment. 272 4. The two days' notice of a road traverse for inutility required by the 133d section of the 6 (fe 7 Wm. IV. c. 116, means a ■i .iiiiM<''--< TO THE PRINCIPAL MATTERS, 481 inde after i)|(lin^ tho r udjodi'ii- )iifrii>irion. Page 1 17 intcd only were not , or n full ider ss. 31) lat even if icr Grand e mistake. 170 traversed, it the next stalmcnts: 3sentment. 20 given by ammcnce- ! swearinnf ;r.se, when t the next. 102 3ach road the 6 & 7 he Crown It. 272 y required », means a notice within two days of the First Sessions at which tho a|)|)iicuti(»n for tho road was ai)|)r(»ved under sec. 27 of that i\ct, and not witliin two days of tho Sessions after tho As- sizes, under s. 28. Fermanagh Presentment. Page 322 See Court House, 2. TREASURER. 1. Where the Treasurer of a County proved a defaulter to Government in the re|)ayinent of advances made by tho Government to the County, (tiie amount of which had been presented Ijy tlie Grand .Jury, raised, and paid into tho Trea- surer's hands,) and, after the Government had sued him and his sureties upon their recognizances, there still remained a balance due: Held, that the Grand Jury were not bound to present for the deficiency, under s. 145 of the « & 7 VVm. IV. c. 11(5, and that the Judge on tlieir refusal was not bound to make an order under s. 17!) of that Act.— Semble, that the Crown is not within s. 145 of the .t 7 Wm. IV, c. 110. Tyrone Presentment. 224 2. A Collector of Grand Jury Cess having proved a defluilter, the Granfl Jury sued the Treasurer in the Court of Exche- quer, where the Court gave judgment for the defendant, holding that it was the duty of the Grand Jury, and not of the Treasurer, to take care that the Collector should give sulliciont security. The Grand Jury afterwards made a Presentment for the deficient sum, to be levied off the County, and paid to the Treasurer, he having debited himself condi- tionally with that amount. Held, that the Presentment was legal. Qtieen^s Count// Presentment. 231 TRIAL. After the prisoner had been given in charge, it appeared that the prosecutrix, a child of four years of age, did not suffi- ciently understand the nature of an oath; and it was admitted on the part of the Crown, that there was no other evidence to sustain the case. Held, that the prisoner was entitled to an acquittal. Rt-gina v. Ouhighan. 270 440 INDEX UNLAWFUL OATHS. 1. On a conviction for administering an unlawful oath, the pri- soner may bo sentenced to hard labour and imprisonment, by virtue of the 51 Geo. III. c. 63, s, 2. — Qnccre, whether to support an indictment under the 50 Geo. III. c. 102, s. 1, for administering an unlawful oath, it must be proved that the country was in a state of disturbance? Rex v. JVoonan. Page 108 2. An indictment under the 27 Geo. III. c. 15, s. 6, for admi- nistering an unlawful oath, is supported by evidence that the prisoner compelled the prosccutci to swear "that he would give up his land to A. B." Rex v. Mains 4* Langlon. 135 UTTERING. 1. Where the prisoner was present at a sale of goods by tho prosecutor to a third person, (who was introduced by the prisoner to the prosecutor as a purchaser,) and took up a Bank Note given by that person in payment, saying that it was good, and that he would make it good, and desired the prosecutor to write his (prisoner's) name upon it; the note proving a forgery: Held, that there was sufficient evidence of idler in g by the prisoner. Rex v. Cush/an. 113 2. Setnhle, that reading out a document, although the party refuses to show it, is a sufficient uttering. Regina v. Green. 282 VAGRANTS. Held, by eleven Judges, that the Vagrant Acts (1 Ann c. 11, 9 Geo. II. c. 6, 11 &, 12 Geo. III. c. 30, and 31 Geo. III. c. 44,) apply to the several counties in Ireland, and not to the county and city of Dublin alone. Held also, by six Judges to five, that those Acts apply to women as well as men. Mealh Presentment. 289 See Deserter. VARIANCE. 1. The informations, warrant of committal, and indictment, stated an offence committed on Monday the 12th. In the course of the trial it became necessary to fix the precise date TO THE PRINCIPAL MATTERS. 4M [h, the pri- risonment, /vhelher to 2, s. 1, for i that the '. JVoonan. Page 108 , for admi- re that the I he would qton. 135 )ds by tho ;ed by the took up a ing that it k'sired the t; the note t evidence 113 the party ; V. Green. 282 Ann c. 11, jleo. J 1 1, c. not to the six Judges II as men. 289 ndictnicnt, Ih. In the recisc dale VARIANCE— continued. of the ofTencc, which was proved to be Monday the 5th. Held, that a conviction under those circumstances was legal. Hex V. Jones. Pairel2 2. An indictment for sending to the Lord Lieutenant a false recommendation of persons convicted, charged that the pri- soner forged the signature of «T. King, rector of T." The evidence was, that the name forged by the prisoner was "T. Knox, rector of T." The Judge having given leave to amend, by substituting "Knox" for "King:" Held, that there was no fatal variance on the ground of its appearing in evi- dence that T. Knox was in fact rector of A., and that there was no such parish as that of T. Held, also, that proof of the document which contained the false recommendatiou being in the prisoner's handwriting, and dated in the county in which the venue was laid, was sijfficient evidence of acts done in that county. Rex v. Dwyer. log VENUE. See ABDucTioiv. WARRANT. -See Manslaughter, 2. WEIGHTS AND MEASURES. Held, that tho 6th and 7th sections of 4 & 5 Wm. IV. c. 40, (weights and measures,) were imperative. Kildare PresenU 174 WHITEBOY. 1. An indictment under the 27th Geo. IIL c. 15, s. 10, will be sustained by evidence of supplying ammunition to a person who only pretended to get it for the use of the Whiteboys. Rex v. Hef email. 2 2. An indictment under the Whiteboy Act for an injury to a gatehouse, stating it to be the "dwelling-house and habita- tion" of the gatekeeper, is sufficient. Rex v. CahilL 36 56 443 INDEX WEITEBOY^continued. 3. Evidence to support an indictment under the Whitcboy Act. Rex V. Carroll. Page 78 It is not necessary to prove, by distinct evidence, that the coun- try was in a state of disturbance, if the crime itself bo clearly a Whiteboy oflence, as the circumstances attending it may demonstrate the country to be in such a state. Ibid. 4. An indictment, charging that the j)risoncr did, "by threats and menaces, threaten violence to the person of one J. G. in the event of his not taking back into his employment a certain man whom he had then lately before discharged from his service," is bad. Such an indictment, supposing it were good, is not supported by evidence that J. G. was agent to another person, and hired servants to be employed about the work of that person, which J. G. superintended ; and that the discharge of one of these servants was the occasion of the threats stated in the indictment. Rex v. Flannery. 243 See Riot. WITNESS. 1. A man jointly indicted with others, and who has pleaded not guilty, cannot be a witness for the prosecution, whilst his plea stands. Rex v. Ryan. 5 2. The prosecutor's wife is a competert witness for the de- fence. Rex V. Houlton. 24 3. It is no objection to the testimony of a wife, that she is brought to contradict the testimony of her husl)and. Ibid. 4. Where a witness was called by the Crown, and the Crown declined to examine him, but permitted him to be cross-ex- amined, and then re-examined him, and then "produced his depositions to show that what he had therein stated varied from his evidence at the trial : Held, that a conviction under these circumstances was wrong. Rex v. Moron. i)l 5. Where a witness, after having been examined for the prose- cution, fainted shortly after the commencement of his cross- examination, so as to render it impossible for him to give any further evidence; held, by seven Judges against five, that TO THE PRINCIPAL MATTERS. 443 WITNESS— continued. a conviction upon such evidence ns had been already given by this witness, taken together with the evidence of the other witnesses, was good. Rex v. DonUn. Page 123 See Medical Witnkss. YACHT. The owner of a yacht is not entitled to compensation for the malicious burning of it, under the 19 & 20 Geo. III. c. 37. Galway Presentment. 71 THB RND. {•B'iHtitiliJfH^'IrJiiJJ^IJn:*^