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1861.

The QUEEN

V. CHARLESWORTH.

the Judge had become convinced that it was impracticable
that they could give a verdict, which it was said was a
case of necessity, and a discharge of the jury where it was
manifestly still practicable that they could give their
verdict, but the Judge thought it desirable for the ends
of justice not to take their verdict, though it was prac-
ticable; this, it was said, was ultra vires and illegal.
The distinction is intelligible, but it cannot be supported
without overruling Kinloch's Case (a). There the ver-
dict on not guilty might very well have been taken,
though the prisoners had not the opportunity of plead-
ing in abatement. It was entirely a voluntary act on
the part of the Court which led to the discharge of the
jury, and, as is pointed out by Crampton J., in Conway
and Lynch v. The Queen, p. 176, the whole reasoning of
Foster J. is founded on the supposition that the Judge
had a discretionary power, though he ought never to
exercise it without very good reason indeed. The case
of Conway and Lynch v. The Queen (6) is, as I have
already observed, a case of felony, and in so far not
necessarily in point in the present case of misdemeanor,
but I must say that the admirable judgment of Crampton
J. convinces me that, even in a case of felony, he was
right, and his colleagues, though the majority, wrong. I
will not weaken what he has said by repeating or
abridging it, but refer to the report, only saying that I
subscribe to all his reasoning, except that, as I have al-
ready said, I doubt if he is justified (p. 178) in treating
it as a settled point that there must be a venire de novo
on an imperfect verdict in a case of felony. I think this
still not determined by authority; see Campbell v. The
Queen (c).
(a) Foster, 16. 22.

(h) 7 Irish Law Rep. 149.
() 11 Q. B. 799.

1861.

The QUEEN

V. CHARLESWORTH.

Since the case of Conway and Lynch there have been two in England where the question arose.

In Newton's Case (a) Lord Denman says (p. 729), “The prisoner was given in charge to a jury at the Assizes ; and the jury were, improperly, discharged: and therefore, as it is contended, the prisoner must be set at liberty. I do not think that conclusion follows either logically or on the legal authorities. Even assuming that the discharge of the jury was improper, I do not see how it is equivalent to an acquittal, or can be a bar to a trial, nor how it could be made the subject of a plea." And Patteson J. says (p. 731) “There has been no trial resulting in a verdict; what took place was not a trial determining the question of her guilt or innocence. Therefore, even if I saw great reason to doubt the correctness of what took place at the Assizes, I should say she was not entitled to be discharged." These opinions were given on a return to a habeas corpus, when the question before the Court was whether the prisoner could be detained in gaol to abide a fresh trial. The question, whether there should be a fresh trial, was not so distinctly raised as in the present case, but it was before the Court; and the learned Judges just quoted evidently thought that, even in the case of a capital felony, an improper discharge of a jury was not equivalent to an acquittal. The last case on the subject is The Queen v. Davison (), where the precise question now before us was raised on demurrer at the Central Criminal Court. There, to an indictment for misdemeanor, it was pleaded, that the prisoner had been given in charge to a jury and they had been improperly discharged by the justices. The replication stated no more than that the justices did (a) 13 Q. B. 716.

(6) 2 F. & F. 250.

1861.

The QUEEN

V. CHARLESWORTH.

it in the exercise of their discretion, because all other business was at an end, and the jury said that they were not likely to agree; this was admitted to be true by the demurrer, and if there was no more than this stated, surely the discharge was indiscreet and premature. Both Pollock C. B. and Martin B., p. 254, note the distinction between the case which was one of misdemeanor and that of Conway and Lynch v. The Queen, which was felony, but rest their judgment on the more general ground that the improper discharge of a jury could not be the subject of a plea, and my brother Hill, p. 255, quotes and concurs in the judgment of Crampton J., in the Irish case.

I think these authorities quite sufficient to authorize us to decide that the discharge of the jury is no legal bar to another trial, and therefore that there ought to be such jury process as is necessary to produce the further trial. Whether that is to be entered on the record as a venire de novo, or as a continuation of the former jury process, is a matter not now before us. The rule should be discharged.

Rule discharged.

Subsequently a nolle prosequi was entered by The Attorney General.

By stat. 14 & 15 Vict. c. 100. s. 12., a Judge is empowered to discharge the jury from giving any verdict, where a person is tried for misdemeanor, and the facts given in evidence amount in law to a felony, and to direct such person to be indicted for felony.

1861.

c. 31.

Tuesday, The Queen against The Inhabitants of the Parish July 9th.

of RUYTON of the Eleven Towns. 11 & 12 Vict. Grounds of The grounds of removal of a female pauper stated a derivative settleremoral. ment from her great-grandfather; and alleged an acknowledgment of Acknowledge that settlement by relief given to her great-grandmother, and by a ment.

collateral relation having been removed to the parish. On the trial of Evidence. an appeal at the Quarter Sessions against the order of removal, the Case for

respondents offered evidence to shew the removal to the appellant parish opinion of of another collateral relation—the wife of a grandson of the common superior Court. ancestor-on a settlement also derived from him. This evidence was

objected to, but received, and the question of its admissibility was reserved for this Court: held

1. That the Court of Quarter Sessions were prohibited by stat. 11 & 12 Vict. c. 31. from reserving the above question for the consideration of this Court.

2. Per Hill and Crompton JJ., dubitante Cockburn C. J., that the evidence was receivable.

ON appeal against an order of two justices of the

peace for the city and borough of Chester, for the removal of Ann Rowlands and her three illegitimate children from the parish of St. Bridget, Chester, to the parish of Ruyton of the Eleven Towns, in the county of Salop; the Court of Quarter Sessions for the city and borough of Chester confirmed the order, subject to the following case :The

pauper Ann Rowlands was the daughter of William Rowlands the

who was the son of William Rowlands, who was the son of Thomas Rowlands and Ann his wife. The respondents relied upon a settlement in the appellant parish derived from the said Thomas Rowlands, the pauper's great-grandfather. In addition to other evidence they tendered an order for the removal of one Jane Rowlands, the wife of one Thomas Rowlands, the grandson of the said Thomas Rowlands and Ann

younger,

1861.

The QUEEN

Inhabitants of

RUYTCN.

his wife, from the township of Wrexham Abbott to the appellant parish, dated the 5th day of August, 1830, on a settlement derived from the said Thomas Rowlands the grandfather, and a removal under it, which order was never appealed against. They also called the said Jane Rowlands to state the circumstances under which the removal took place, and her relationship to the pauper.

On the part of the appellants it was objected that this evidence was not admissible. The learned Recorder received the evidence, but reserved for the consideration of this Court the question of its admissibility.

The question for the opinion of this Court is :

Was the evidence objected to inadmissible in support of the respondent's grounds of removal ?

If the Court should be of opinion that it was inadmissible, then the order of Sessions is to be quashed; otherwise the same to stand confirmed.

The grounds of removal and of appeal are to form part of this case, and are as follows, namely :

Grounds of removal.

“That the said Ann Rowlands and her said three children have come to inhabit, and are now inhabiting, in our said parish of Saint Bridget, not having resided in the said parish for five years next before the date hereof, so as to become irremovable therefrom, and not having gained a legal settlement therein, nor having produced any certificate acknowledging them to be settled elsewhere; and that they are now actually chargeable to our said parish, and are receiving relief therefrom, which is not made necessary by reason of sickness or accident : that their place of settlement is in your said parish, township or place of Ruyton of the Eleven Towns,

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