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the jurors of a certain county have found to what is cured by verdict under the Stathat an offence has been committed, it must tutes of Jeofails : those statutes are confined be taken to have been committed in that to civil matters. Nor does The King v. Fuller county.—[Counsel for the Crown proceeded (19) shew, that the statement of the princito argue the other objections taken to the pal offence is in immaterial fact, as in that fourth count.)
case the indictment was upon a statute which On the 3rd of June
made the mere endeavour to incite a felony,
and it was not therefore necessary to state Erle, Dundas, Baines, Murphy, Serj., the means used. In The King v. Štott (20), Bodkin, and Atherton, supported the rule. - no direct decision appears to have been First, as to the fourth count. The want of given as to the necessity of stating time and allegation of place to the principal offence place. The stat. 5 Ann. c. 31. s. 5. assumes, is a good objection to a count in substance, that there has been a stealing, and then as unless it appears that the principals com- creates the offence of receiving. There would mitted an indictable offence, the aiders and also be a continuing larceny in the thief, abettors are accessory only to an innocent though he has the goods in several counties, act. Here, the acts charged against the until he hands them over to the receiver. principals may have taken place beyond The defect of sufficient allegation of time Her Majesty's dominions. It is stated and place is not cured by the stat. 7 Geo. 4. on the part of the Crown, that it is suffi- c. 64. s. 20. This is not merely the “want of cient if the principal offences were com- a proper or perfect venue," but there is an abmitted within the realms of the Queen. sence of any venue to a material statement. This count does not shew that they were, The principal offence, which is an essential and it is therefore bad for want of a proper fact, is laid wholly without venue, though the averment of place— Com. Dig. 'Indict- act of the accessaries has a venue attached to ment,' (G) 2, Hawk. P. C. lib. 2. c. 25. it. It cannot be contended, that all allegation s. 83, The King v. Hollond, The King of the venue, upon which the jurisdiction to v. Haynes, Collins v. Goldsmith (14), inquire and try depends, can be dispensed Hamond's case(15), The King v. Yarrington with. The venue in the margin, “ Lan(16), The King v. Connop (17), 3rd Burn's cashire, to wit,” will not cure this error. Justice, 383, (by D'Oyley and Williams), Both the nature of the offence and the place where this passage occurs : “In bigamy where committed must be shewn in order the indictment was found in Middlesex, and to give jurisdiction. The marginal venue stated the first marriage to have taken place refers to the presentment of the jurors, not in the county of -, and the second mar- to the offence; and the mention of place in riage in the county of - -, and at the con- the body of the indictment will not refer to clusion it stated, . And the jurors aforesaid, the county in the margin, though it may be &c. further say, that the said J. J. F. was ap- otherwise in civil cases— The Queen v.Rhodes prehended on the day of
, (21), Anonymous case (22), The King v. leaving a blank for the place. Judgment Burridge (23), The King v. Kilderby (23), being respited after conviction, the Judges and the cases there cited. The King v. held unanimously that the indictment was Hart is admitted to be in point; and albad, for the Middlesex grand jury on the though in that case the objection was taken face of it had no jurisdiction. Hilary term, at the close of the case for the prosecution, 1834. The King v. J. J. Frazer, cor. yet it was evidently treated as if it had been Arabin, Serj., O. B. September Sessions, taken after verdict. Then as to the fifth 1833. MS."
count. That count has no venue even in [COLERIDGE, J. referred to The King v. the margin, nor is any place mentioned in Helsham (18).]
the body. A total omission of venue is This objection is not answered by analogy
(19) Bos. & Pul, 180. (14) 1 Bulst. 205, n.
(20) 2 East's Pl. Cr. 753, 780. (15) Cro. Eliz. 751.
(21) 2 Ld. Raym. 886. (16) 2 Keble, 302.
(22) Ibid. 1304. (17) 4 Ad. & El. 942.
(23) 3 P. Wms. 496. (18) 4 Car. & Pay. 394.
(24) 1 Saund. 308, n. 1.
much more than an improper or imperfect in civil actions. To hold this would be to venue. To the latter only the statute has say, as was undoubtedly said by the Solicitor reference. That requires as a condition General, that whenever a grand jury of any precedent to any defect being cured, that it county whatever, has found a bill of indict. shall appear by the indictment itself that the ment for a crime cognizable under the comCourt has jurisdiction over the offence- mission, a trial which takes place upon it Ogle's case (25), nor can the caption give in that county must be good after verdict, assistance in this respect-Faulkner's case although the indictment may not shew the (26).
Court to have any local jurisdiction over the Cur. adv. vult. offence, on which condition alone the defect
is cured by the statute. The argument LORD DENMAN, C.J. now delivered the drawn from the 16 & 17 Car. 2. c. 8, and judgment of the Court.— The Court have the 4 Ann. c. 10. was, that as in civil acconsidered the case of The Queen v. Feargus tions the total omission of the venue is cured O'Connor, with reference to the objections by the first of those acts, under the words arising on the venue. None is stated in the “ for want of a right venue," so the total fifth count, and it is plain, that at common omission of the venue in criminal cases will law the count is on that account bad. be cured under the 7 Geo. 4, which uses Every material fact must be stated with time the words “for want of a proper or perfect and place, in order that it may appear that venue." But the defect cured in civil acthe grand jury had jurisdiction to find the tions is not the total omission of the venue, bill, and also that it may be known whence but a wrong venue ; and it is cured by the the petty jury are to come, who are to try statute of Charles, if the case was tried by
This is laid down in all the books a jury of the proper county where the action and the authorities cited at the bar. Indeed, is laid. The action in every civil case is it was hardly contended, on the part of the laid in the county stated in the margin, and Crown, that this count could be supported if the trial took place in that county, the at common law, as it contained no venue condition is fulfilled. By the 4 Ann. the in itself, nor any words of reference to the remedy is extended to cases of judgment by venue in the margin, to which therefore the default: all the defects which would have facts stated in the fifth count cannot be re- been cured by any of the Statutes of Jeoferred, according to the distinction hereafter fails, in case the verdict of twelve men had mentioned. Recourse is then had to the been given in such action, being expressly statute of the 7 Geo. 4. C. 64. s. 20, which cured by the second section of the statute. enacts, that no judgment after verdict, or To bear any analogy to this statute, the confession or default, shall be stayed for 7 Geo. 4. should have cured the defect of want of a proper or perfect venue, provided venue when the case was tried by a jury it shall appear by the indictment that the of the county in which the indictment is Court had jurisdiction over the offence. preferred. The venue in the margin may Now, whether the total omission of the venue shew this, but certainly does not make the incan be considered as cured by those words, dictment shew, that the Court had jurisdicor whether they are to be confined to cases tion to try the offence unless it be specially where some venue is stated, but improperly referred to in the body of the indictment. The or imperfectly, in either case the condition distinction between civil and criminal cases in on which that remedy for the defect of this respect, is found in Tyson v. Paske, venue is given by the 7 Geo. 4. is, that it in Lenthal's case (27), The King v. Burridge, shall appear by the indictment that the The King v. Fosset (28), there cited, and nuCourt had jurisdiction over the offence. If merous other cases which were quoted at the this means local jurisdiction, the fifth count bar. It has been established in such a variety does not shew it; for no place is mentioned
that it is impossible for this Court to in the body of it, and we cannot, as already overrule them. It follows, that the Court stated, import into it for this purpose the cannot connect the body of the indictment county noted in the margin, as has been done with the margin in this case, for want of (25) 2 Hale's Pl. Cr. 180.
(27) Cro. Eliz. 137. (26) I Saund. 249.
(28) 3 P. Wms. 497.
such special reference ; that it does not ap- jury to entertain the bill of indictment, but pear by the indictment, that the Court, is also the warrant for the sheriff to summon where the indictment was found, had juris- the petty jury, who must pass between the diction; and that the defect is not cured by Crown and prisoner. The trial of witnesses the statute of the 7 Geo. 4. c. 64. The Court for perjury would be embarrassed, and jushas considered, whether the statute of the tice defeated, if the jury should appear 7 Geo. 4. may not admit of a different and to have been impanelled to try without auwider meaning: namely, that the offence thority. To make the act of trying confer shall appear to be of such a nature that the the right would be a change so violent, that Court has authority to try it; and a strong we cannot believe it to have been intended argument in favour of this construction by the legislature. Upon the whole, we are arises from the apparent impossibility of of opinion, that the judgment on the fifth giving effect to the words in any other count must be arrested. An objection was manner. But we are satisfied that such also taken to the fourth, on the score of the is not the case, and are convinced that venue; a material fact being alleged without defects of venue are not intended to be place. Stott's case was thought, on the part cured, unless the jurisdiction of the Court in of the Crown, to bear directly on this doctrine, respect of locality is made to appear. One and it was not successfully distinguished consideration indeed is decisive on this point. by the defendants in the argument; but the Persons accused might be punished for Master of the Crown Office has found the offences committed in another realm, if the paper book in that case, on which Mr. Jusquality of the offence alone gave jurisdiction. tice Ashurst took his note of the argument, This clearly was not intended. Mr. Dundas conducted by Lord Abinger on the one referred to a case reported, not quite cor- side, and the late Mr. Justice Vaughan on rectly, in the last edition of Burn's Justice; the other, in Michaelmas term, 1798. The it is also reported in the 1st of Moody's indorsement of that learned Judge intimates, Crown Cases, 407, Frazer's case. We have that the case stood for further argument. before us that very case (in which the opi- The prisoner was convicted in April, and then nion of all the Judges was taken), and a copy sentenced to twelve months imprisonment, of the indictment itself. The prisoner was more than half of which had expired before tried for bigamy at the Old Bailey in 1833. the argument, and there is every reason to The first marriage was alleged to have been believe that Sir Edward East was mistaken contracted in Kent, and the second in in reporting that case as decided; and he Surrey; he was alleged to have been appre- himself intimates, indeed, that if there was hended on a day named, but of the place an error in the sentence, it would possibly or county at which he was apprehended no be amended, by being changed to transpormention was made. The conviction was tation for fourteen years : a strong reason held bad, the felony being proved in Surrey, for not pursuing the argument much further. while the venue in the margin was Middlesex, We think, however, that here the 7 Geo. 4. but no one suggested that Middlesex could c. 64. s. 20. applies a remedy, as the conbe drawn from the margin into the body of duct imputed as criminal to the defendants the averment of his apprehension, although is stated with a venue. The count states that would unquestionably have cured the the fact of unlawful assemblies having taken defect; nor was it suggested that the Court place at divers places, without stating where; appeared by the indictment to have juris- but such statement is introductory only to the diction over the offence of bigamy, which charge against the defendants, which is, the would have cured the defect, if the statute aiding and assisting persons to continue the could apply to the nature of the offence, and said assemblies; and the aiding and assistnot to the place where it was committed, or ing is laid to have been in the county of where the prisoner was apprehended. The Lancaster. The count, therefore, has a objection on the score of omitting local venue, although an imperfect one, because venue, is not merely technical, but real and the material facts in the early part of it are important; for the allegation of material without place; but the part which charges facts, as occurring in a particular county, is the defendants with the offence, has a venue, not only that which authorizes the grand and refers to the former part of the count,
which former part, therefore, may fairly be objection was fatal, and expressed their inconsidered to have an imperfect venue; and tention to quash the order ; but upon the as the offence itself is laid with a proper interference of one of the two Magistrates venue, it appears by the count, that the who had made the order, they inserted on Court had jurisdiction ; and that is the very their records an entry that it was quashed case contemplated by the statute.
“not on the merits.” This entry was proThe Court consequently directed a further tested against by the appellants, who then day for argument, on the part of the defen- offered to go into the facts, but the Sessions dants, as to the other objections taken to the refused to hear them. fourth count, which was had accordingly in Pashley now moved for a mandamus to the same term: but judgment has not yet the Justices, either to erase the entry, or to been given.
hear the appeal. It is clear, that the deci. Judgment arrested on the fifth count. sion on this objection was as much a decision
on the merits of the settlement, as if the
respondents had gone into the case, and had BAIL COURT. Ex parte THE OVERSEERS OF failed, before the recent statute, to establish 1843.
the fact that notice of the prior order had Nov. 22.
been given to the appellants, or that the
pauper had been removed— The Queen v. Appeal—Order of Removal-Mandamus
Clint (1), The Queen v. the Justices of the - Sessions.
West Riding (2), The Queen v. Church Where the Sessions have jurisdiction over Knowle (3), The Queen v. Evenwood and an appeal against an order of removal, and, Barony (4), The Queen v. the Justices of having quashed the order, make a special Middlesex (5). Then the appellants ask the entry on their records,“ quashed, not on the Court to do nothing more than it usually merits," this Court will not interfere, and does-- The King v. the Justices of Devon direct a mandamus to erase such entry, al. (6). Although this Court will not compel though the order was quashed on an objection the Sessions to make a special entry, yet which went to the merits.
when what they have done would operate The examination on which an order of re- as a conclusive barrier against the hearing moval was founded, set forth a prior order of the case on a future occasion- The King of removal to the appellant township, which v. Wick St. Lawrence (7), this Court will had been suspended, but did not sħew that direct it to be erased. the former order had been served, or the [PATTESON, J.-Suppose there was merely pauper removed.
The appellants stated, a general entry, then the respondents might as a ground of objection, that the examina- shew, at a future day, the real ground for tion was bad on the face of it, for not the decision ; and if the Justices held that a shewing these facts-Held, that a decision decision on such an objection was not a deby the Sessions that this objection was valid, cision on the merits, we could not interfere. was a decision on the merits of the settlement. How, then, can I now do so ?]
The Court never assumes that MagisThe ground of removal of the pauper, trates will act contrary to the law; and this alleged in the examination, in this case, was being a decision on the merits, the Court a prior order between the same townships, must consider that the Justices will come to unappealed against. There was, however, no statement that the pauper had been removed,
(1) 11 Ad. & El. 624 ; 8. c. 10 Law J, Rep. (n.s.) or the prior order had ever been served; M.C. 151. and it also appeeared that it had been sus
(2) 10 Ibid. 685; s.c. 9 Law J. Rep. (N.s.) M.C.
57. pended. The appellants objected, that the
(3) 7 Ibid. 471; s.c. 7 Law J. Rep. (N.s.) examination was bad on the face of it, inas
M.C. 4. much as it shewed no ground for the present (4) 12 Law J. Rep. (n.s.) M.C. 101. order, and also denied the facts.
(5) 11 Ad. & El. 809; s.c. 9 Law J. Rep. (N.5.) When the case came on to be heard, at
M.C. 59. the last Sessions for the West Riding of
(6) i Chit. Rep. 34.
(7) 5 B. & Ad. 526; s. c. 3 Law J. Rep. (N.s.) Yorkshire, the Justices held, that the first M.C. 12.
that conclusion. As to the power of the this Court certainly directed an entry of an Court to make such an erasure, The Queen appeal on the record of the Court of Quarter v. the Justices of the West Riding of York- Sessions to be erased; and that case, it is shire (8) is precisely in point. The cases in contended, is an authority for this applicawhich this Court has compelled the Sessions tion ; but there, the Court had originally to make entries on their records of matters possessed no power to make any entry at which have never actually occurred,-e.g. all. The Sessions had entered an appeal, continuances,—are much stronger instances in that case, on the motion of the responof the controuling power of this Court than dents, and in the absence of the appellants, the present would be.
which they had no authority to do. They Cur. adv. vult. consequently had no jurisdiction, for the case
was not properly before them. In this case, PATTESON, J.-In this case, it appeared however, the appeal was properly entered, that the examination on which the order of and the Court had jurisdiction over it, the Magistrates was founded, shewed no and they have decided it. How, then, can ground for the removal of the pauper. It we compel them to re-hear a case on which set forth, as the ground, a prior order of re- they have decided ? It may be true, that moval to the appellant parish, unappealed their decision is erroneous; but we cannot against, which, it alleged, had been sus- interfere with that. The law in such a case pended ; and there was no statement con- has provided no means of redress ; for this tained in it shewing that it had ever been court is not a court of error, to which appeals served. The examination was, therefore, may be made from the Sessions. Whether bad ; and the Sessions, being of that opi- upon any subsequent occasion the Magisnion, decided that they would quash the trates will permit the appellants to contradict order, with a special entry that it was quash- their record, by evidence that the former deed not on the merits. Considerable discus- cision was, in fact, a decision on the merits, sion then ensued, and an offer was made by is a question which remains to be settled. the appellants to go into the case ; but the The rule, however, now applied for must be respondents objected, that the appellants refused. must abide by the decision of the Court
Rule refused. already given. The Sessions refused to hear it; and thereupon an entry was made, that the appeal was quashed not on the merits. At first, I was inclined to think that the Sessions were right in doing this, and that
YORKSHIRE, in the matter a decision upon this objection was not a 1843. of an appeal between THE quashing on the merits. I am, however,
Nov. 22. now satisfied that my original impression was wrong. The cases of The Queen v, the Inhabitants of Evenwood and Barony, and
Appeal, Notice of — Poor Statute 22 The Queen v. the Inhabitants of Charlbury
Geo. 3. c. 28. (9), have rightly decided, that where the examination omits some material facts, it is Where a parish is incorporated under 22 the same thing as if, on the hearing of the Geo. 3. c. 28, the notice of appeal must be appeal, the parties had not brought evidence signed by the guardian, and he must describe of such facts before the Court. I think the himself therein as such. It is insufficient term “merits" is an unfortunate expression, that he should describe himself as an overseer. and extremely likely to mislead. It is quite clear, therefore, that the Sessions were wrong The appellant parish had been incorpoin their decision ; and then the question rated under Gilbert's Act, 22 Geo. 3. c. 28, arises, whether this Court can direct the re- and the notice of appeal in this instance had cord to be amended. In The Queen v. the been signed by the guardian. He was not, Justices of the West Riding of Yorkshire, however, so described, but the notice pur(8) 12 Law J. Rep. (N.s.) M.C. 148.
ported to be signed by the churchwardens (9) Ante, M.C. 19.
and overseers, and was actually signed by
THE QUEEN V. THE JUSTICES
OF THE WEST RIDING OP
INHABITANTS OF HARNLEY
AND THE INHABITANTS OF