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meeting was duly adjourned by different continued adjournments. In point of law all these meetings constituted one; and at one meeting the rate was begun and completed.

The avowry then states that, after the making of the rate, a certain other meeting was held on the 14th September, on which day the rate was duly signed by eight vestrymen then present. It was proved that a meeting was held on that day: and it was contended by Mr. Peacock that, if this was only part of the same meeting, and not a different meeting from that at which the rate was made and completed, the meeting could not be called one for one purpose and two for another. We felt considerable doubt as to this allegation; but we think the continued meeting may be treated as a different meeting. That held for making the rate was pursuant to a public notice specifying the purpose to be the making of the rate; and it continued to be the same meeting by reason of the adjournment until the rate was completed; and, after the rate was made, the meeting on the 14th continued, but continued for other purposes, pursuant to the notice by the vestry clerk that the rate book would be settled and signed on that day; and the declaration required by the statute was made and signed. It seems to us that the continuance of the meeting after the making of the rate was complete may be properly termed another meeting, so that there is really no vari

ance between the *allegation in the avowry and the proof. Such *715]

being our opinion, it is unnecessary to consider whether the word “other” in the avowry may not be rejected as surplusage, on the ground that it is wholly immaterial whether the signature was made at the same meeting at which the rate was made, or at another.

Then follows in the avowry some allegation as to the meeting on the 28th August, at which the rate was confirmed, which appears to be unnecessary, and may be all struck out without in any way affecting the validity of the avowry. The avowry then states the allowance and confirmation of the rate by the magistrates, and the proper steps to enforce it by distress; all of which are satisfactorily proved.

The result therefore of the whole is, that the avowry was, in our opinion, supported by the evidence, and is, as we think, unobjectionable in arrest of judgment; and we think the judgment should be for the defendant below.

Judgment reversed.(a) (a) The case in the Exchequer Chamber is reported by H. Davison, Esq.

The case was carried to the House of Lords by writ of error; and the judgment of the Court of Exchequer Chamber was there affirmed, July 11th, 1851. Lorant v. Scadding, 3 House of Lords Cases.


May 24.


A prisoner committed by a justice of the peace for murder was indicted at the assizes, pleaded Not Guilty, and was given in charge to a jury. The jury, after hearing the evidence and the summing up, retired at two in the afternoon, and remained in deliberation all night. Next day, being brought into Court, they stated that they had not agreed, and were not likely to agree, on their verdict. The other business of the assize for that county was over; and the Judge's duty called him to the next assize town. He discharged the jury and remanded the prisoner. On motion for a habeas corpus at common law: Held: That, whether the Judge was or was not justified in discharging the jury, the discharge

was not equivalent to an acquittal, and the prisoner was properly detained in custody under the original commitment. But Held also that the Judge acted rightly in discharging the jury.

HUDDLESTON, in last Easter term, obtained a rule calling upon the prosecutors of the after-mentioned indictment to show cause why a habeas corpus ad subjiciendum should not issue, directed to the keeper of the gaol at Shrewsbury, to bring up the body of Mercy Catharine Newton: upon notice of the rule to be given to the said prosecutors and to the solicitor for the Treasury.

By the affidavits on which the rule was obtained it appeared that the prisoner was committed on 13th December, 1818, by the warrant of a justice of the peace, for wilful murder. She was indicted at the ensuing Shrewsbury assizes before COLTMAN, J., and pleaded Not guilty. A jury was sworn, and charged to try the prisoner, on 21st March, 1849. The trial was begun, and adjourned to the following day; and about two o'clock on the 22d the jury retired. They continued locked up all the remainder of that day and all that night; and on the ensuing day, the 23d, were brought into court. They then stated to the Judge that they had not agreed and were not likely to agree upon their verdict. The learned Judge therefore discharged them, without their giving any verdict, and remanded the prisoner; and she still remained a prisoner in Shrewsbury gaol.

*On this day, as Sir J. Jervis, Attorney-General, was beginning to show cause, COLERIDGE, J., observed that it did not appear on

[*717 the face of the affidavits that the day on which the prisoner was discharged was the first day of the assizes in the next county, that all other business at Shrewsbury had been disposed of, and that the duty of the Judge called on him to leave the town. His lordship stated that from a conference which he had had with COLTMAN, J., he knew this to be the fact : and he observed that in Conway & Lynch v. The Queen, 7 Irish Law Reports, 149, the Irish Judges had laid much stress on the absence of these circumstances. After some discussion, it was agreed that an a

affidavit supplying these facts should be filed, and that cause should now be shown as if the affidavit were already filed.

Sir J. Jervis, Attorney-General, then showed cause. It is clearly VOL. XIII.-54

2 N 2

settled to be the practice in civil cases, that if the Judge, in the exercise of his discretion, thinks it will tend to the furtherance of justice that the jury should be discharged, he may do so, independently of the consent of parties : and the first question here is, whether a different rule prevails in criminal or at least in capital cases. The Judge, whether presiding at a trial for a capital offence or at a civil trial, has the same power, and the same duty to perform : if, after the jury are sworn, circumstances arise which render it necessary to discharge them in order that there may not be a failure of justice, he should discharge them in each case. In each he is to determine judicially whether the discharge is necessary.

The authorities relied upon on the other *side are: Co. Litt. 227, b, *718]

where it is said: “ A jury sworn and charged in case of life or member, cannot be discharged by the Court or any other, but they ought to give a verdict:" and 3 Inst. 110, where COKE says: “ To speak it here once for all, if any person be indicted for treason, or of felony, or larceny, and plead Not guilty, and thereupon a juryis re turned, and sworn, their verdict must be heard, and they cannot be discharged:" also an Anonymous placitum in Carthew,(a) where it is said: “ Nota; per HOLT, C. J., at the sittings in Westminster, 9th Novemb. 1698, in a case of perjury tried before him, between The King and Perkins, he said, that it was the opinion of all the Judges of England, upon debate between them,-(1.) That in capital cases a juror cannot be withdrawn, though all parties consent to it. (2.) That in criminal cases, not capital, a juror may be withdrawn, if both parties consent, but not otherwise. (3.) And that in all civil causes, a juror cannot be withdrawn, but by consent of all parties.” It is, however, very doubtful whether these passages were an accurate statement of the law, even in early times. Sir Thomas Raymond(6) says that: “ In the case of one Ferrars, against whom an information was exhibited for forgery: it was resolved by all the justices, that although the jury be charged and sworn in the case of a plea of the Crown, yet a juror may be drawn or the jury dismissed, contrary to common tradition, which hath been held by many learned in the law.” And in Doctor and Student, p. 271, the Doctor puts the case: « If one of the twelve men of an inquest know the very truth of his own *719]

*knowledge, and instructeth his fellows thereof, and they will in

no wise give credence to him, and thereupon, because meat and drink is prohibited them, he is driven to that point, that either he must assent to them, and give their verdict against his own knowledge and against his own conscience, or die for lack of meat: how may the law then stand with conscience ?" It is answered : «I take not the law of the realm to be, that the jury after they be sworn may not eat or drink till they be agreed of the verdict: but truth it is, there is a maxim and an old custom in the law, that they shall not eat or drink after they be sworn, till they have given their verdict, without the assent and license (a) Carthew, 464.

(6) Ferrars's case, T. Ray. 84.

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of the justices. And that is ordained by the law for eschewing of divers inconveniences.” - But with the assent of the justices they may both eat and drink. As if any of the jurors fall sick before they be agreed of the verdict, so sore that he may not commune of the verdict, then by the assent of the justices he may have meat and drink, and also such other things as be necessary for him: and his fellows also at their own costs, or at the indifferent costs of the parties, if they so agree, or by the assent of the justices, may both eat and drink. And therefore if the case happen that thou now speakest of, and that the jury can in no wise agree in their verdict, and that appeareth to the justices by examination, the justices may in that case suffer them to have both meat and drink for a time, to see whether they will agree: and if they will in no wise agree, I think that the justices may set such order in the matter as shall seem to them by their discretion to stand with reason and conscience, by awarding of a new inquest, and by setting fine upon them that they *shall find in default, or otherwise as they shall think best by their discretion; like as they may do if one of the jury

[*720 die before verdict, or if any other like casualties fall in that behalf. But what the justices ought to do in that case that thou hast put, in their discretion, I will not treat of at this time.” In 2 Hale's P. C. 295, c. 41, the practice is stated to be to discharge the jury in criminal cases, when that course was supposed to be for the benefit of justice : and Lord Hale there seems to approve of discharging the jury under circumstances which would not now be held to justify it; the practice, however, shows that the law as laid down in Co. Litt. 227 b, was not acted upon in Lord HALE's time. The earlier authorities are not of much weight now, as the whole subject was carefully considered in Kinloch's Case, Foster, 15, 22. There the two Kinlochs had been indicted for high treason. On their arraignment they took an objection to the competency of the Court, which the presiding Judge (FOSTER) told them amounted to the plea of Not guilty. They accordingly pleaded Not guilty. After the jury were sworn, it was supposed that the objection affected the jurisdiction, and could not avail on plea of Not guilty: and, in order that the prisoners might have the benefit of their point, the jury were discharged, on the motion of counsel for the prisoners, and at their request, and by consent of the Attorney-General. The prisoners were then permitted to withdraw the plea of Not guilty, and plead to the jurisdiction. These facts were entered on the record : the Attorney-General demurred to the plea to the jurisdiction; judgment of respondeat ouster was given; the *prisoners pleaded Not guilty, and were convicted. Their counsel then moved in arrest of judgment, on the ground that there

[*721 was no power in the Court to discharge the first jury after they had once been charged. Nine Judges out of ten held that, “ admitting the rule laid down by Lord COKE to be a good general rule, yet it cannot be universally binding: nor is it easy to lay down any rule that will be so. The rule cannot bind in cases where it would be productive of great hardship or manifest injustice to the prisoner.' Nothing more was required, for the decision of that case, than to determine that the Court might for some purposes discharge a jury on a trial for treason, and that to assist the prisoner in his defence was one of them. But the judgment of FOSTER, J., shows that the general rule laid down by Lord Coke was then deemed subject to exceptions when an adherence to it would pro-. duce injustice or absurdity. He said (p. 29) that “the general question” was “a point of great difficulty, and of mighty importance," and “ not capable of being determined by any general rule.” After observing that most of the objections appeared to be “ levelled at an improper exercise of the power,” he added: “ the question therefore is not, whether a jury may be discharged after evidence given, in order to the preferring a new indictment better suited to the nature of the case; where, through the ignorance or collusion of the officer, or the mistake of the prosecutor, the fact laid varieth from the real fact, or cometh short of it in point of guilt. This was frequently done before the Revolution, and in one or two instances since. But this is not the present question.” A Judge now would hardly think it proper to discharge 3

jury on that ground. [Lord DENMAN, *C. J.-In case of “collu*722]

sion” I think he probably would.] Foster, J., proceeds : “ Nor is the present question, whether the Court may discharge a jury sworn and charged, where undue practices appear to have been used to keep material witnesses out of the way; or where such witnesses have been prevented by sudden and unforeseen accidents. This likewise is not the question, and I give no opinion on it; only let it be remembered, that Lord Chief Justice HALE justifieth this practice, which, he saith, prevailed in his time, and had long prevailed, by strong arguments drawn from the ends of government and the demands of public justice. Nor is it now a question, nor I hope will it ever be a question again, whether in a capital case the Court may, in their discretion, discharge a jury after evidence given and concluded on the part of the Crown, merely for want of sufficient evidence to convict; and in order to bring the prisoner to a second trial, when the Crown may be better prepared. This was done in the cases of Whitebread and Fenwick, 7 Howell's State Trials, 79, 119, 120, 311, 315-317, and was certainly a most unjustifiable proceeding: I hope it will never be drawn into example. [Lord DENMAN, C. J.-Yet I remember the time when it was the constant practice in revenue causes, after the evidence was given, if the Attorney-General thought that the jury were likely to find for the defendant, to withdraw the record in order that the cause might be brought to trial a second time. It was done in exercise of an unquestioned prerogative of the Crown : and, whatever might be thought of the propriety of the practice, no one doubted its legality. I believe the prerogative has not been used for these twenty years past.] It has never fallen into

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