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day's holiday to go to Holbeach fair, and that served his master under that hiring in the the pauper had such holiday in pursuance of parish of Spalding for the year, and rethe bargain.

ceived his wages; but, upon cross-examina

tion by the attorney for the appellants, Upon appeal against an order, by which he admitted, that, at the time of so hiring George Hobson, his wife and children, were himself to Boston, he bargained for one removed from the parish of Holbeach, in day's holiday to go to Holbeach fair, and the parts of Holland, in the county of Lin- that he had such holiday in pursuance of coln, to the parish of Spalding, in the same the said bargain; but he denied that he parts and county, the Sessions quashed the made any bargain to have holidays at order, subject to the opinion of this Court Spalding club-feast, and, in fact, he had upon the following

not any such holidays. The attorney for

the respondents contended, that, as the CASE.

holiday for Holbeach fair formed no part The grounds of removal, as set forth in of the grounds of appeal, the appellants the examination of the pauper, a copy of could not go into it. The Court of Quarter which was sent to the appellants, with the Sessions, however, being of opinion that order for his removal, pursuant to the sta- they were not precluded from receiving the tute 4 & 5 Will. 4. c. 76, were as follows, pauper's evidence of the holiday for Hol. viz. “ that about three years ago the pauper

beach fair, and treating that as an excepwas hired by, and did contract and engage tive hiring, quashed the order, subject to to serve John Boston, of the parish of the opinion of the Court of King's Bench Spalding in the said parts and county, whether, by section 81 of the statute 4 & farmer in husbandry, for one year, at the

5 Will. 4. c. 76, and by the grounds of apwages of 8l. 15s., and that he served his peal hereinbefore set forth, they were presaid master under that hiring the whole of cluded from receiving such evidence, and the same year in the said parish of Spald. if they were, the order was to be quashed. ing, and received the said wages.” The Amos, in support of the order of Sessions, notice of appeal, which also contained the submitted, that the Sessions were right in grounds thereof, pursuant to the 81st sec- not considering themselves precluded from tion of the said act, stated such grounds of receiving the pauper's evidence as to the appeal to be as follows, viz.-" Thegrounds holiday for Holbeach fair, which made it a of such appeal are, that, at the time of the case of exceptive hiring. The ground of said pauper, George Hobson, letting him- appeal, which was stated with the notice, self to, and contracting and engaging to was, that it was an exceptive hiring; and, serve, John Boston, of Spalding aforesaid, whether it was so by reason of having holifarmer in husbandry, as mentioned in the days for Spalding club or for Holbeach copy of examination of the accompanying fair, would make no difference. The proof order of removal, and previous to the com- was of an exceptive hiring, and the Court pletion of their said bargain, and before any below were satisfied that it was so,-will earnest and fasten-money was paid, the this Court, then, interfere ? pauper George Hobson did stipulate and agree with John Boston, his intended mas- LORD DENMAN, C.J.--If they had stated ter, that he should, out of his year's service, only, as a ground of appeal, that the hiring be allowed and have two days' holidays at with John Boston was an exceptive hiring, Spalding club-feast, in the month of July, in all probability that would have been and that the pauper George Hobson was sufficient to have enabled them to go into allowed and did take and absent himself the evidence offered in this case; but they from his master's service during the said particularize the contract with the master, two days accordingly, whereby be did not upon which they ground their objection of gain any settlement in our said parish of its being exceptive, which contract they do Spalding.” The pauper proved that he did not prove, but prove something else. It is hire himself for one year to John Boston, easy to suppose a case where the additional to serve him in the parish of Spalding, at statement might be put there, in order to the

wages of 81. 15s., and that he duly mislead. We think it quite clear, that we

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THE KING V. MARSH.

should hold the rule strict, that the appel. this, the foreman signed his name to the lants should confine themselves in their bill as a true bill, although he himself was proof to the ground stated with the notice averse to the finding of it. of appeal. Where the notice states more Mr. Attorney General (Campbell), on a where less might be sufficient, and that former day in this term, (November 5,) additional statement is incorrect, the notice applied for a rule calling on the prosecutor is insufficient to enable the parties to vary to shew cause why the indictment should that additional statement in proof. With not be quashed. He contended, that it which

was necessary that the bill should be found PATTESON, J., Williams, J., and Cole- by the majority of grand jurymen, and that RIDGE, J. concurring

the direction of the recorder to the foreman, Order quashed. though correct on the presumption that

only twenty-three were sworn, as then

twelve would be a majority, misled the 1836.

foreman, under the circumstances, to put Nov. 21.

his name to the bill, which he would not

otherwise have done. Grand Jury, Finding by--Indictment,

[LORD DENMAN, C.J.-The indictment Quashing.

must be found by twelve; but is there In point of law, no more than twenty-three any authority for saying that it must be persons can be sworn on the grand jury; and found by a majority? The principle on an indictment found by a grand jury, on which I have always understood this to which were sworn twenty-five, was held bad. rest is, that no man shall come to peril,

But the Court will not, after the indictment except on the finding of twojuries of twelve has been removed by the defendant by certio- that he is guilty ; and, moreover, can we rari, and he has pleaded and been convicted,

receive the affidavit of the foreman of the quash the indictment, but leave the party to grand jury? Is not the fact which he more in arrest of judgment, bring his writ of states, the counsel of his fellows?] error in law or in fact, according to whether The oath of the grand juryman, and the the error appears upon the record or not. restriction contained in it, is with regard

to the evidence which was before them, The defendant was indicted at the Dovor and does not go beyond that; besides, the Sessions, in the spring of 1836, for solicit- Judges have held, that where public justice ing and inducing a third party to personate requires a dispensation with the oath of a voter for the election of councillors for secrecy, it may be dispensed with — 4 the borough. That indictment was re- Christ. Black. 126, n. Now justice does moved by certiorari into this court by the require in this case, that the oath of secrecy defendant, and he pleaded not guilty; and should be dispensed with; but if the Court at the trial, before Lord Abinger, C.B., at

should think that the foreman's affidavit is the last Summer Assizes, for the county of not to be taken, the fact of twenty-five Kent, the defendant was convicted of the being sworn on the grand jury, appears offence with which he was charged. on affidavit made by others.

The grand By affidavit, it appeared that on the jury must be limited to the number of grand jury who had found the bill at the twenty-three-Arch. Cr. Lan, 56; 2 Burr. Dovor Sessions, twenty-fivegrand jurymen 1088; 4 Blac. 306; and as more than the were sworn; and the foreman of the grand proper number were sworn, the bill found jury also made an affidavit, in which he by that grand jury is a nullity ; because stated that of the grand jury twelve were it is impossible to ascertain whether it was for finding the bill, and twelve were found by twelve of the twenty-three first against it, upon which the foreman applied sworn, or whether the twelve who found to the recorder to know whether it was the bill were made up of the two beyond necessary that the bill should be found by the

proper number. Then that this Court a majority, and was told by that learned have power to quash an indictment even gentleman, that all that was required was,

after judgment, 2 Hawk. P.C. chap. 50, that it should be found by twelve : upon entitled Of avoiding Judgments,' is an authority. The King v. the Justices of Mid- king, of any capital offence, unless by the dlesex, in re Bowman (1), will also be in the unanimous voice of twenty-four of his recollection of the Court, where, from the equals and neighbours, that is, by twelve irregularity of the adjournment of the Mid- at least of the grand jury in the first place dlesex Sessions, the indictments found at assenting to the accusation, and afterwards that adjournment were considered void. by the whole petit jury of twelve more

[Lord DENMAN, C.J.—The Judges did finding him guilty on his trial. But if not come to any legal decision on that twelve of the grand jury assent, it is a point, but thought it safer to take the course good presentment, though some of the which was then pursued.]

rest disagree”—2 Hale, P.C. 161. Then The King v. Dickinson (2) is also an as to the necessity of the number of the authority to shew the invalidity of the in- grand jury being limited to twenty-three, dictment. In that case, the indictment there is no authority for that position. It had been found by the grand jury, upon is certainly the practice so to limit them for the testimony of witnesses who had not the sake of convenience. The only authority been sworn ; and although the Judges did on the point is the case 2 Burr. 1088, which not determine in that case that the indict- is not so much a report, as a legal anecdote ment was void, they recommended that of what took place on swearing in the grand the prisoner should be pardoned. In Com. jury on the accession of George III. Then, Dig. Indictment,'(A), it is said, "If there secondly, this is not the proper time to be one bad juryman, the whole indictment quash the indictment. Suppose that the shall be avoided."

indictment were not found upon the oaths LORD DENMAN, C.J.-We think that

"bonorum et legalium hominum," that would you should have a rule to shew cause, on

avoid the indictment; and yet it will be

found on reference to Viner, and the cases the ground that the ancient and established

there collected, that the objection, if taken at practice has been departed from, by swearing twenty-five instead of twenty-three

all, must be taken by plea. This now comes grand jurymen.

as matter of objection to the jurisdiction,

and the form of the motion is in abatement. And now (November 21) cause was The indictment was found at the sessions, shewn against the rule which had been ob- from whence it was removed by the defentained, by

dant himself, whereby he admitted that Platt and Adolphus.-On the face of the there was such an indictment, and he has indictment, it must be assumed that the been convicted upon the indictment so adbill was found by twelve grand jurymen, mitted to be against him.

mitted to be against him. What would be and all that appears to be necessary is, that the state of the record, if the Court were it should be found by twelve or more; and

to accede to this motion ? It would appear there is no case which decides that the upon the face of the record, that the ingrand jury must be twenty-three in num- dictment was found, and sufficiently found, ber, and no more—Co. Lit. 126, b. An and that the defendant put himself upon indictment signifieth in law an accusation the country, was convicted, and the indictfound by an inquest of twelve or more ment quashed; but for what, will not appear. upon their oath-2 Hale, P.C. 154 ; 2 [COLERIDGE, J.-Will it not appear on Hawk.P.C. c. 25; Com.Dig. 'Indictment,' the record, that the indictment was found (A). Vin. Abr. · Indictment,' also adopts by twenty-five jurymen? In the Appenthe definition given by Hawkins, and 4 · dix to Blackstone, the form given sets out Black. 306, it is thus stated: “But to find all the names.] a bill, there must at least be twelve of the That is not the practice of the Dovor jury agree; for so tender is the law of Sessions. The names of all the jurymen England of the lives of the subjects, that are not set out upon the record, and as the no man can be convicted at the suit of the objection does not appear upon the record,

that strengthens the argument as to its being (1) 3 Nev. & Man. 110; . c. 3 Law J. Rep.

waived by appearance, (N.s.) M.C. 32.

[COLERIDGE, J.-May not this be error (2) R. & R. C.C. 401.

in fact?]

1

}

THE KING V. RICHARD HIGGINS,

The King v. Sheridan (3) was referred take which has happened in this case. That to also.

may appear on the caption of the indietMr. Attorney General (Campbell) was ment, and then the defendant will be enstopped on the first point.

titled to question its validity on a writ of [Lord DENMAN, C.J.--The Court has no error in law. If it does not appear on the doubt whatever, that the number of the caption, he may bring it forward by a writ grand jury is by law limited to twenty- of error in fact. Supposing it be a ground three. There is no express decision on in arrest of judgment, that mode of prothat point, but by the practice, which is the ceeding is still open to him; but the defenmost certain guide in the absence of de- dant is not entitled to call upon us to quash cisions, it has always been so limited; and the indictment. the only point to which we wish you to PATTESON, J.-We ought to have some draw your attention is, as to the time of express authority, shewing that the indicttaking the objection.]

ment may be quashed, after the party has Mr. Attorney General (Campbell) and pleaded to it, for the defect which is alleged. Channell, on the second point. If, then, it The defendant may move in arrest of judgis required by law, that only twenty-three ment; or may bring error in law or in fact, should be sworn on the grand jury, and in as the circumstances may be. the present instance, the jury who found WILLIAMS, J. and Coleridge, J. conthe bill were composed of twenty-five, the curred. indictment so found is a nullity. It is a do

Rule discharged. cument 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 1836. of and unthought of, before the present

Nov. 9. moment. It has been suggested, that a

CertiorariCostsCourt below. writ of error, either in law or in fact, according to whether the names of the grand Where an indictment is removed by certiojury are set out upon the record or not, is rari, this Court has no jurisdiction over the open to the defendant; but supposing that costs incurred in the court below previous to to be the case, there is no inconsistency in the delivery of the writ of certiorari. another remedy being also open to the de- Thus, where the defendant had sued out a fendant. In civil cases, where a party has writ of certiorari in March, and, after three a remedy by auditá querelá, the Court will Sessions had passed, gave notice of trial, and give relief on motion, and à fortiori will they the prosecutor was ready with all his witnesses, give that relief on motion in the present but, at the conclusion of the Sessions, the decase of a criminal proceeding, subjecting fendant delivered in to the Justices the writ the party to punishment on an indictment, of certiorari,—The Court, on quashing the which is made to appear on affidavit to have writ and awarding a procedendo, would not been illegally found, and not valid in point make the defendant pay the costs incurred at of law. If, therefore, the Court can be con- the last sessions. vinced, that either upon a writ of error in law or a writ of error in fact, there would The defendant had been indicted for obbe ground for avoiding the indictment, they structing a road, and a true bill found at the will, upon this application, afford the de- October Sessions for the county of Herefendant the same relief by quashing the ford in 1834. At the following Sessions, indictment on motion.

January 1835, the defendant appeared and

pleaded not guilty, and traversed to the Lord DENMAN, C.J.-No authority has April Sessions. The defendant gave no been quoted to shew, that the Court is notice of trial of the traverse for that bound to quash an indictment for the mis- Sessions, and his recognizanee was respited

till the Midsummer Sessions. No notice (3) 31 Howell's State Trials, col. 543. of trial was given for that Sessions, and the NEW SERIES, VI.-Mag. Cas.

B

defendant's recognizance was again respited fendant kept the certiorari in his pocket for till the Michaelmas Sessions. Eight days three successive Sessions without producing before these Sessions, notice was given of it, or any notice being given to the prosetrial of the traverse, and the prosecutor cutor that a certiorari had been sued out. prepared for trial. The Sessions com- The costs were incurred subsequent to the menced on the 19th of October, and lasted suing out of the certiorari. The writ having till the afternoon of the 21st, when they been sued out, the Court had seisin of the were prepared, for the prosecution, to go cause from that time, and the costs were into the evidence, and make out their case. incurred in consequence of the notice of Nearly at the close of the Sessions, the trial not having been countermanded or defendant's attorney delivered in to the any intimation given to the prosecutor that Court of Quarter Sessions a writ of certio- the writ had been sued out. Stacey v. rari, which had been sued out in the month Evans (2) and Jones v. Davies (3) are in of March preceding. No countermand of point. notice of trial had been given, nor had the prosecutor any knowledge of the writ of LORD DENMAN, C. J.-I should think certiorari having been sued out, until the that the case of Stacey v. Evans proceeded time when it was produced to the Justices. on the authority of the case of Jones v.

A rule had been obtained, calling on the Davies; and that case is certainly denied as defendant to shew cause why the writ of law by my Brothers Littledale and Tauncertiorari issued in this prosecution should ton, in The King v. Pasman (4). It does not be quashed, and a writ of procedendo appear to me that the circumstances entitle awarded; and why the defendant should not the prosecutor to the rule for quashing the pay to the prosecutor or his attorney the certiorari and awarding a procedendo ; but costs incurred by him in this prosecution with regard to costs, I cannot find that this at the last Michaelmas Sessions. Against Court has any authority to grant costs ; this rule cause was shewn (on affidavits and I take it that Jones v. Davies and Stacey endeavouring to excuse the delay, but which v. Evans must be considered as overruled the Court did not think satisfactory,) by- by The King v. Pasman. Talfourd, Serj. and Kelly, who contendo

Rule absolute accordingly. ed, 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 1836. THE KING V. THE JUSTICES OF removal by certiorari, the Court having Nov. 13. become seised of the cause, has ordered costs to be given to the party; but there

Highway55 Geo. 3. c. 68—-Order for is no case in which the Court has inter

diverting and stopping up. fered to award costs for what occurred An order of Justices for diverting a public before the case was brought up by certio- highway and substituting a new one, containrari. The costs incurred here were in the ing in it also an order for stopping up the court below, before removal by certiorari, old highway, under 55 Geo. 3. c. 68, is bad: and they will follow as a matter of course, to effect both purposes, two separate and if the prosecutor goes on, on the procedendo. distinct orders are necessary.*

Maule and Greaves, contrà.
[Lord Denman, C.J.-Do you think you

(2) 13 Price, 449. can maintain your application for costs?]

(3) 1 B. & C. 143 ; s. C. 1 Law J. Rep. K.B. 54. The case of The King v. Bartrum (1) is

(4) 1 Ad. & Ell. 603 ; s.c.3 Law J. Rep. (N.s.) an authority to shew, that the Court have M.C. 111. power to award costs in a criminal case * It was also held, in a case which came before against a party who does not proceed to the Court in this term, of The King o. the Inhabi. trial pursuant to his notice. Here, the de- tants of Milverton, “That a joint order for stopping

up several distinct highways, was invalid.” See (1) 8 East, 269.

post, The King v. the Inhabitants of Milverton.

}

MIDDLESEX.

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