day's holiday to go to Holbeach fair, and that the pauper had such holiday in pursuance of the bargain.

Upon appeal against an order, by which George Hobson, his wife and children, were removed from the parish of Holbeach, in the parts of Holland, in the county of Lincoln, to the parish of Spalding, in the same parts and county, the Sessions quashed the order, subject to the opinion of this Court upon the following

CASE.

The grounds of removal, as set forth in the examination of the pauper, a copy of which was sent to the appellants, with the order for his removal, pursuant to the statute 4 & 5 Will. 4. c. 76, were as follows, viz. "that about three years ago the pauper was hired by, and did contract and engage to serve John Boston, of the parish of Spalding in the said parts and county, farmer in husbandry, for one year, at the wages of 81. 15s., and that he served his said master under that hiring the whole of the same year in the said parish of Spalding, and received the said wages." The notice of appeal, which also contained the grounds thereof, pursuant to the 81st section of the said act, stated such grounds of appeal to be as follows, viz.-"The grounds of such appeal are, that, at the time of the said pauper, George Hobson, letting himself to, and contracting and engaging to serve, John Boston, of Spalding aforesaid, farmer in husbandry, as mentioned in the copy of examination of the accompanying order of removal, and previous to the completion of their said bargain, and before any earnest and fasten-money was paid, the pauper George Hobson did stipulate and agree with John Boston, his intended master, that he should, out of his year's service, be allowed and have two days' holidays at Spalding club-feast, in the month of July, and that the pauper George Hobson was allowed and did take and absent himself from his master's service during the said two days accordingly, whereby he did not gain any settlement in our said parish of Spalding." The pauper proved that he did hire himself for one year to John Boston, to serve him in the parish of Spalding, at the wages of 8l. 15s., and that he duly

served his master under that hiring in the parish of Spalding for the year, and received his wages; but, upon cross-examination by the attorney for the appellants, he admitted, that, at the time of so hiring himself to Boston, he bargained for one day's holiday to go to Holbeach fair, and that he had such holiday in pursuance of the said bargain; but he denied that he made any bargain to have holidays at Spalding club-feast, and, in fact, he had not any such holidays. The attorney for the respondents contended, that, as the holiday for Holbeach fair formed no part of the grounds of appeal, the appellants could not go into it. The Court of Quarter Sessions, however, being of opinion that they were not precluded from receiving the pauper's evidence of the holiday for Holbeach fair, and treating that as an exceptive hiring, quashed the order, subject to the opinion of the Court of King's Bench whether, by section 81 of the statute 4 & 5 Will. 4. c. 76, and by the grounds of appeal hereinbefore set forth, they were precluded from receiving such evidence, and if they were, the order was to be quashed.

Amos, in support of the order of Sessions, submitted, that the Sessions were right in not considering themselves precluded from receiving the pauper's evidence as to the holiday for Holbeach fair, which made it a case of exceptive hiring. The ground of appeal, which was stated with the notice, was, that it was an exceptive hiring; and, whether it was so by reason of having holidays for Spalding club or for Holbeach fair, would make no difference. The proof was of an exceptive hiring, and the Court below were satisfied that it was so,-will this Court, then, interfere?

LORD DENMAN, C. J.-If they had stated only, as a ground of appeal, that the hiring with John Boston was an exceptive hiring, in all probability that would have been sufficient to have enabled them to go into the evidence offered in this case; but they particularize the contract with the master, upon which they ground their objection of its being exceptive, which contract they do not prove, but prove something else. It is easy to suppose a case where the additional statement might be put there, in order to mislead. We think it quite clear, that we

Grand Jury, Finding by-Indictment, Quashing.

In point of law, no more than twenty-three persons can be sworn on the grand jury; and an indictment found by a grand jury, on which were sworn twenty-five, was held bad.

But the Court will not, after the indictment has been removed by the defendant by certiorari, and he has pleaded and been convicted, quash the indictment, but leave the party to move in arrest of judgment, bring his writ of error in law or in fact, according to whether the error appears upon the record or not.

The defendant was indicted at the Dovor Sessions, in the spring of 1836, for soliciting and inducing a third party to personate a voter for the election of councillors for the borough. That indictment was removed by certiorari into this court by the defendant, and he pleaded not guilty; and at the trial, before Lord Abinger, C.B., at the last Summer Assizes, for the county of Kent, the defendant was convicted of the offence with which he was charged.

By affidavit, it appeared that on the grand jury who had found the bill at the Dovor Sessions, twenty-five grand jurymen were sworn; and the foreman of the grand jury also made an affidavit, in which he stated that of the grand jury twelve were for finding the bill, and twelve were against it, upon which the foreman applied to the recorder to know whether it was necessary that the bill should be found by a majority, and was told by that learned gentleman, that all that was required was, that it should be found by twelve: upon

this, the foreman signed his name to the bill as a true bill, although he himself was averse to the finding of it.

Mr. Attorney General (Campbell), on a former day in this term, (November 5,) applied for a rule calling on the prosecutor to shew cause why the indictment should not be quashed. He contended, that it was necessary that the bill should be found by the majority of grand jurymen, and that the direction of the recorder to the foreman, though correct on the presumption that only twenty-three were sworn, as then twelve would be a majority, misled the foreman, under the circumstances, to put his name to the bill, which he would not otherwise have done.

[LORD DENMAN, C.J.-The indictment must be found by twelve; but is there any authority for saying that it must be found by a majority? The principle on which I have always understood this to rest is, that no man shall come to peril, except on the finding of twojuries of twelve that he is guilty; and, moreover, can we receive the affidavit of the foreman of the grand jury? Is not the fact which he states, the counsel of his fellows?]

The oath of the grand juryman, and the restriction contained in it, is with regard to the evidence which was before them, and does not go beyond that; besides, the Judges have held, that where public justice requires a dispensation with the oath of secrecy, it may be dispensed with - 4 Christ. Black. 126, n. Now justice does require in this case, that the oath of secrecy should be dispensed with; but if the Court should think that the foreman's affidavit is not to be taken, the fact of twenty-five being sworn on the grand jury, appears on affidavit made by others. The grand jury must be limited to the number of twenty-three-Arch. Cr. Law, 56; 2 Burr. 1088; 4 Blac. 306; and as more than the proper number were sworn, the bill found by that grand jury is a nullity; because it is impossible to ascertain whether it was found by twelve of the twenty-three first sworn, or whether the twelve who found the bill were made up of the two beyond the proper number. Then that this Court have power to quash an indictment even after judgment, 2 Hawk. P.C. chap. 50, entitled 'Of avoiding Judgments,' is an au

thority. The King v. the Justices of Middlesex, in re Bowman (1), will also be in the recollection of the Court, where, from the irregularity of the adjournment of the Middlesex Sessions, the indictments found at that adjournment were considered void.

[LORD DENMAN, C.J.-The Judges did not come to any legal decision on that point, but thought it safer to take the course which was then pursued.]

The King v. Dickinson (2) is also an authority to shew the invalidity of the indictment. In that case, the indictment had been found by the grand jury, upon the testimony of witnesses who had not been sworn; and although the Judges did not determine in that case that the indictment was void, they recommended that the prisoner should be pardoned. In Com. Dig. 'Indictment,' (A), it is said, "If there be one bad juryman, the whole indictment shall be avoided."

LORD DENMAN, C.J.-We think that you should have a rule to shew cause, on the ground that the ancient and established practice has been departed from, by swearing twenty-five instead of twenty-three grand jurymen.

And now (November 21) cause was shewn against the rule which had been obtained, by

Platt and Adolphus.-On the face of the indictment, it must be assumed that the bill was found by twelve grand jurymen, and all that appears to be necessary is, that it should be found by twelve or more; and there is no case which decides that the grand jury must be twenty-three in number, and no more-Co. Lit. 126, b. An indictment signifieth in law an accusation found by an inquest of twelve or more upon their oath-2 Hale, P.C. 154; 2 Hawk. P.C. c. 25; Com. Dig. 'Indictment,' (A). Vin. Abr. 'Indictment,' also adopts the definition given by Hawkins, and 4 Black. 306, it is thus stated: "But to find a bill, there must at least be twelve of the jury agree; for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the

(1) 3 Nev. & Man. 110; s. c. 3 Law J. Rep. (N.S.) M.C. 32.

(2) R. & R. C.C, 401.

king, of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbours, that is, by twelve at least of the grand jury in the first place assenting to the accusation, and afterwards by the whole petit jury of twelve more finding him guilty on his trial. But if twelve of the grand jury assent, it is a good presentment, though some of the rest disagree"–2 Hale, P.C. 161. Then as to the necessity of the number of the grand jury being limited to twenty-three, there is no authority for that position. It is certainly the practice so to limit them for the sake of convenience. The only authority on the point is the case 2 Burr. 1088, which is not so much a report, as a legal anecdote of what took place on swearing in the grand jury on the accession of George III. Then, secondly, this is not the proper time to quash the indictment. Suppose that the indictment were not found upon the oaths "bonorum et legalium hominum," that would avoid the indictment; and yet it will be found on reference to Viner, and the cases there collected, that the objection, if taken at all, must be taken by plea. This now comes as matter of objection to the jurisdiction, and the form of the motion is in abatement. The indictment was found at the sessions, from whence it was removed by the defendant himself, whereby he admitted that there was such an indictment, and he has been convicted upon the indictment so admitted to be against him. What would be the state of the record, if the Court were to accede to this motion? It would appear upon the face of the record, that the indictment was found, and sufficiently found, and that the defendant put himself upon the country, was convicted, and the indictment quashed; but for what, will not appear.

[COLERIDGE, J.-Will it not appear on the record, that the indictment was found by twenty-five jurymen? In the Appendix to Blackstone, the form given sets out all the names.]

That is not the practice of the Dovor Sessions. The names of all the jurymen are not set out upon the record, and as the objection does not appear upon the record, that strengthens the argument as to its being waived by appearance.

[COLERIDGE, J.-May not this be error in fact?]

The King v. Sheridan (3) was referred to also.

Mr. Attorney General (Campbell) was stopped on the first point.

[LORD DENMAN, C.J.-The Court has no doubt whatever, that the number of the grand jury is by law limited to twentythree. There is no express decision on that point, but by the practice, which is the most certain guide in the absence of decisions, it has always been so limited; and the only point to which we wish you to draw your attention is, as to the time of taking the objection.]

Mr. Attorney General (Campbell) and Channell, on the second point.-If, then, it is required by law, that only twenty-three should be sworn on the grand jury, and in the present instance, the jury who found the bill were composed of twenty-five, the indictment so found is a nullity. It is a document on which no king's subject ought to have been put upon his trial. It is said, that this is a matter that ought to have been pleaded in abatement, a position unheard of and unthought of, before the present moment. It has been suggested, that a writ of error, either in law or in fact, according to whether the names of the grand jury are set out upon the record or not, is open to the defendant; but supposing that to be the case, there is no inconsistency in another remedy being also open to the defendant. In civil cases, where a party has a remedy by auditá querelá, the Court will give relief on motion, and à fortiori will they give that relief on motion in the present case of a criminal proceeding, subjecting the party to punishment on an indictment, which is made to appear on affidavit to have been illegally found, and not valid in point of law. If, therefore, the Court can be convinced, that either upon a writ of error in law or a writ of error in fact, there would be ground for avoiding the indictment, they will, upon this application, afford the defendant the same relief by quashing the indictment on motion.

LORD DENMAN, C.J.-No authority has been quoted to shew, that the Court is bound to quash an indictment for the mis

(3) 31 Howell's State Trials, col. 543. NEW SERIES, VI.-MAG. CAS.

take which has happened in this case. That may appear on the caption of the indietment, and then the defendant will be entitled to question its validity on a writ of error in law. If it does not appear on the caption, he may bring it forward by a writ of error in fact. Supposing it be a ground in arrest of judgment, that mode of proceeding is still open to him; but the defendant is not entitled to call upon us to quash the indictment.

PATTESON, J.-We ought to have some express authority, shewing that the indictment may be quashed, after the party has pleaded to it, for the defect which is alleged. The defendant may move in arrest of judgment; or may bring error in law or in fact, as the circumstances may be.

WILLIAMS, J. and COLERIDGE, J. concurred.

Certiorari-Costs-Court below.

Where an indictment is removed by certiorari, this Court has no jurisdiction over the costs incurred in the court below previous to the delivery of the writ of certiorari.

Thus, where the defendant had sued out a writ of certiorari in March, and, after three Sessions had passed, gave notice of trial, and the prosecutor was ready with all his witnesses, but, at the conclusion of the Sessions, the defendant delivered in to the Justices the writ of certiorari,―The Court, on quashing the writ and awarding a procedendo, would not make the defendant pay the costs incurred at the last sessions.

The defendant had been indicted for obstructing a road, and a true bill found at the October Sessions for the county of Hereford in 1834. At the following Sessions, January 1835, the defendant appeared and pleaded not guilty, and traversed to the April Sessions. The defendant gave no notice of trial of the traverse for that Sessions, and his recognizance was respited till the Midsummer Sessions. No notice of trial was given for that Sessions, and the

B

defendant's recognizance was again respited till the Michaelmas Sessions. Eight days before these Sessions, notice was given of trial of the traverse, and the prosecutor prepared for trial. The Sessions commenced on the 19th of October, and lasted till the afternoon of the 21st, when they were prepared, for the prosecution, to go into the evidence, and make out their case. Nearly at the close of the Sessions, the defendant's attorney delivered in to the Court of Quarter Sessions a writ of certiorari, which had been sued out in the month of March preceding. No countermand of notice of trial had been given, nor had the prosecutor any knowledge of the writ of certiorari having been sued out, until the time when it was produced to the Justices.

A rule had been obtained, calling on the defendant to shew cause why the writ of certiorari issued in this prosecution should not be quashed, and a writ of procedendo awarded; and why the defendant should not pay to the prosecutor or his attorney the costs incurred by him in this prosecution at the last Michaelmas Sessions. Against this rule cause was shewn (on affidavits endeavouring to excuse the delay, but which the Court did not think satisfactory,) by

Talfourd, Serj. and Kelly, who contended, that the Court had no power or jurisdiction to give to the prosecutor the costs which had been incurred in the court below. No doubt, there are cases in which, after removal by certiorari, the Court having become seised of the cause, has ordered costs to be given to the party; but there is no case in which the Court has inter

fered to award costs for what occurred before the case was brought up by certiorari. The costs incurred here were in the court below, before removal by certiorari, and they will follow as a matter of course, if the prosecutor goes on, on the procedendo. Maule and Greaves, contrà.

[LORD DENMAN, C.J.-Do you think you can maintain your application for costs?]

The case of The King v. Bartrum (1) is an authority to shew, that the Court have power to award costs in a criminal case against a party who does not proceed to trial pursuant to his notice. Here, the de

(1) 8 East, 269.

fendant kept the certiorari in his pocket for three successive Sessions without producing it, or any notice being given to the prosecutor that a certiorari had been sued out. The costs were incurred subsequent to the suing out of the certiorari. The writ having been sued out, the Court had seisin of the cause from that time, and the costs were incurred in consequence of the notice of trial not having been countermanded or any intimation given to the prosecutor that the writ had been sued out. Stacey v. Evans (2) and Jones v. Davies (3) are in point.

LORD DENMAN, C. J.-I should think that the case of Stacey v. Evans proceeded on the authority of the case of Jones v. Davies; and that case is certainly denied as law by my Brothers Littledale and Taunton, in The King v. Pasman (4). It does appear to me that the circumstances entitle the prosecutor to the rule for quashing the certiorari and awarding a procedendo; but with regard to costs, I cannot find that this Court has any authority to grant costs; and I take it that Jones v. Davies and Stacey v. Evans must be considered as overruled by The King v. Pasman.

(3) 1 B. & C. 143; s. c. 1 Law J. Rep. K.B. 54. (4) 1 Ad. & Ell. 603; s. c. 3 Law J. Rep. (N. s.) M.C. 111.

It was also held, in a case which came before the Court in this term, of The King v. the Inhabitants of Milverton, "That a joint order for stopping up several distinct highways, was invalid." See post, The King v. the Inhabitants of Milverton.