could find no precedent of a certiorari granted to remove an indictment of felony from one county to another after plea and issue. He admitted, that in cases of misdemeanor, the practice of removing by certiorari, in fit and proper cases, had obtained, Rex v. Hunt (a), and also that there were instances of removal by certiorari of indictments for felony from Courts of Quarter Sessions and local jurisdictions, Rex v. Thomas (b). There were several objections to the present motion, independently of its novelty, which would induce the Court to hesitate before they granted it, even supposing they had authority so to do. In the first place, the case was at issue in the county of York, and the witnesses for the prosecution were bound over to give their evidence in that county. But supposing the Court should award a trial at bar, the prisoners could derive very little advantage from it, because, still the case must be tried by a Jury of the freeholders of York. The recognizances of the witnesses could not compel them to attend in this Court, or in any county other than Yorkshire, and this Court had no power to bind them over in fresh recognizances. But independently of this difficulty, the expences of the prosecution could only be awarded by the Justices of Assize in the county in which the prisoners are tried, 58 Geo. 3. c. 70.; and therefore if the trial was had at bar, this Court had no power to grant expences, which would subject the prosecutors to great hardship. But considering this as an application to the discretion of the Court, without regard to the strict rules of law, still the Court ought not to act upon it, unless it appeared that the persons connected with the prosecution, were privy to the publication, which it was said would tend to prejudice the prisoners on their trial. No imputation of that kind was suggested. Be

(a) 3 B. & A. 444.

(b) 4 M. & S. 442. See the cases there cited.

The KING

v.

MEAD.

sary to a trial in any other county, it would be error e record. This, therefore, was an attempt to delay e without sufficient ground. At all events the venue not be changed until the prisoners were arraigned a d time, and it was a matter of considerable doubt, her the venue could be changed out of Term.

Williams and Archbold, contrà, insisted, that there o doubt whatever of the power of the Court to grant ciorari for the removal of an indictment for felony, in

to a trial at bar. For this they cited Bac. Abr. Fertiorari, 4 Vin. Abr. 345. 356. Rex v. Wells (a), v. Elford (b), Tyndal's case (c), Rutabie's case (d), v. Althoes (e), Rex v. Thomas (f), Rex v. Thomp3). There was no doubt that this Court had power ant a certiorari to Courts of Oyer and Terminer. erbert N. B. 246. A. B. H. Rex v. Sidney (h), v. Morgan (i), and Rex

1 Stra. 549.

2 Stra. 877.

Cro. Car. 252. 264. & 291.

2 Hale, 212. 8 Mod. 135.

v. Wells (k). The only

(f) 4 M. & S. 442.
(g) 21 Vin. Abr. 177.
(h) 2 Stra. 1165.
(i) Id. 1049.
(k) 1 Stra. 549.

1

question therefore was, whether, under the circumstances of this case, the Court would interpose with a view to the due administration of justice. It was clear that if an impartial trial cannot be had in the proper county, it is ground for a certiorari. Rex v. Fawle (a), Rex v. Thomas, and Rex v. Hunt. In the present case, publications of a most inflammatory description had been circulated throughout the county of York; great prejudice had been excited against the prisoners, and they distinctly swore to their information and belief, that they could not, in consequence of these publications, have a fair and impartial trial in that county. The objections suggested on the other side could not prevail against this motion. There was no doubt that the prisoners might plead over again in this Court, although the certiorari would only remove the indictment, and as to the witnesses, there was nothing to prevent this Court from binding them over again to appear at the trial, in the place which the Court should direct. It was a sufficient ground for this Court to interfere, if the prisoners had not even a probable chance of a fair and impartial trial, but under the circumstances of this case, it seemed almost impossible that the ends of public justice could be satisfactorily attained in the county of York.

ABBOTT, C. J.-The Court is placed in a situation of great difficulty. On the one hand, if we do not grant the writ, there is a possibility that those who shall be assembled as Jurors on the trial of these prisoners, may, through the great and grievous misconduct of the person who has sent forth these publications to the world, come to the discharge of their duty with minds not entirely un

(a) 2 Ld. Raym. 1452. See Rex v. Webb, 2 Stra. 1068. Rex v. Harris, 3 Burr. 1330. Poole

v. Bennett, 2 Stra. 874, and Rex
v. Amery, 1 T. R. 363.

a much earlier period. It was in their power to do nd I think the application might have been made with more reasonable (probability of success at the com⭑ ement of Easter, than so late in this Term. These cations will have occurred at a period of five months e this trial can take place in the county of York, and fore we think our best and most discreet course is, not ant the writ, but to rely upon the confident hope, hose persons who shall be assembled in the county ɔrk for the discharge of their duty as Jurors, will care to prevent these improper publications from g any weight on their minds. I think we may conly hope, that in a serious case of this kind, the Jury uard themselves against acting upon preconceived ssions.

e other Judges concurred.

Rule discharged.