KIRWAN.

THE QUEEN square yards, which, it is admitted, would be less than the quantity contained in an acre of the Irish plantation measure, and therefore, if the conviction has reference to English measure, the magistrates must have exceeded the penalty imposed by the statute. The Court are of opinion that the conviction is void for its uncertainty and ambiguity, and also for not describing the acres to be late Irish plantation measure, and therefore it must be quashed.

Conviction quashed.

THE QUEEN

ບ.

RICE,

otherwise ROURKE,

and HAYS E.

COURT OF CHANCERY, IRELAND.

[COMMON LAW SIDE.]

May 15, 1846.

THE QUEEN V. RICE, otherwise ROURKE, and HAYES. (a)
Bill of exceptions.

THE

A bill of exceptions does not lie in a capital case.

THE prisoners, Rourke and Hayes, were, at the last Spring Assizes for the North Riding of the county of Tipperary, tried before Mr. Justice Ball for a conspiracy to murder (see 8 Law T. p. 50), and convicted; upon which occasion Dwyer, who was of counsel for the prisoners, tendered a bill of exceptions to the learned judge's charge, which his lordship having refused to sign,

Dwyer (Francis Meagher with him) applied to the Lord Chancellor for an order, under the statute 13 Edw. 1, c. 31, commanding Mr. Justice Ball to sign the bill.

Sausse appeared, on behalf of the Crown, to resist the application.

The following cases and authorities were referred to: statutes 13 Edw. 1, c. 31; 28 Geo. 3, c. 31, s. 1; Sir Henry Vane's case (2 Harg. St. Tr. 450; 6 How. St. Tr. & Kel. 14, 15, and 1 Keb. 384, S. C.); Ex parte Vermilyea and Others (6 Cowen, 555) ; R.v. McDonnell (Î Hud. & Br. 439), citing Lord Paget v. Bishop of Coventry (1 Leon. 5); R. v. Inhabitants of Preston-on-the-Hill (C. T. Hardw. 236); The Rioters' case (1 Vernon, 175); R. v. Higgins (Thos. Raym. 484; Skin. 91, and Ventr. 366, S. C.); R. v. Archbishop of York (Willes, 535).

His lordship stated that he would take time to consider the question before pronouncing his decision. The following order was made on the 15th May:

By the LORD CHANCELLOR. (b)-" In the case of The Queen v. Patrick Rice and Patrick Hayes, prisoners in the gaol of Nenagh, &c. Having regard to the terms of the statute of the 13th Edw. 1, c. 31, (c) and of the Irish Act of the 28 Geo. 3, c. 31,

(a) Reported by W. ST. LEGER BABINGTON, Esq., Barrister-at-law.
(b) Sir Edward Sugden.

(c) The words of the statute 13 Edw. 1, c. 31 (Westm. 2nd), are as follows: When any one that is impleaded (implacitatus) before any of the justices doth allege an exception, praying that the justices will allow it, which if they will not allow, if he that alleges the

V.

RICK, otherwise

ROURKE,

s. 1, (a) and to the authorities that a bill of exceptions cannot be THE Quan taken in a criminal case like this, particularly Sir Henry Vane's case (2 Hargr. St. Tr. 450), and the case of The King v. McDonnell (1 Hudson & Brooke's Rep. 439), and having regard to the circumstance that there is no authority in favour of the statute of and HAYES. Westminster the second applying to a criminal case like this, his lordship is of opinion that upon the said application there should be "No rule.

NOTE. The application was made at the Lord Chancellor's house, and the above order was not pronounced in court, but was sent to the Hanaper Office. As the application in the present case was one both of great novelty and importance, it may not be altogether without advantage to subjoin in a collected form the principal authorities bearing upon the question raised by the prisoner's counsel. It cannot be doubted that the Chancellor has the power to issue a mandatory writ in civil cases under the stat. 13 Edw. 1 (see Lessee Lawler v. Murray, 1 Sch. & Lefroy, 75, et seq. per Lord Redesdale, citing Payn v. Sidney, Dyer, 208, a; and Lilly, Prac. Reg. 232), from which it is clear, precedents of such writs are to be found in the Court of Chancery, both in England and Ireland. It would seem, therefore, strange, that it should be denied in a criminal case if an exigency requiring it to be issued should arise, unless the issuing of it should be clearly outside the terms of the statute. There are but few cases on the subject to be met with in the reports; the chief, if not the only, direct authority against an application like the present being Sir Henry Vane's case (6 How. St. Tr. ; 2 Harg. St. Tr.; and 1 Keb. 384); of it, it is to be observed, that the prisoner was wholly without counsel, none of the counsel of that day, it is said in Hargrave (2 St. Tr. 451), daring to assist him; and if the report of his trial contained in that book is to be credited, the mode of proceeding pursued towards Sir Henry Vane was one not likely, it is to be hoped, ever to be adopted again towards a prisoner in these kingdoms, independently of the numerous changes which have of late years been made in the law in favour of prisoners. In one place (2 Harg. St. Tr. 451, and 6 How. St. Tr. p. 170) the decision of the judges in refusing to receive the bill of exceptions, is called "their pretended opinion;" and further on it is said, “To the bystanders their chief reason seemed to be, that it had not been practised this hundred or two of years." In Lord Paget v. The Bishop of Coventry (1 Leonard, p. 5), which was an indictment for a trespass, the bishop challenged the array because no knight was returned, he being a peer, &c. "Upon which challenge," it is said, "the Queen's counsel did demur in law; but at last, for expedition, &c., the Court delivered to the counsel for the bishop a bill sealed to save him the advantage of the said challenge ;" and further on in the case, it appears that another exception was also taken.

In Reg. v. Higgins (Skinner 91; T. Raym. 484; 1 Ventr. 366, S. C.) the Court granted a bill of exceptions, and though Ventris, in his report of the

exception do write the same exception, and require that the justices will put to their seals for a witness, the justices shall so do; and if one will not, another of the company shall; and if the king, upon complaint made of the justices, cause the record to come before him, and the same exception be not found in the roll, and the plaintiff shew the exception written with the seal of a justice put to, the justice shall be commanded to appear at a certain day, either to confess or deny his seal; and if the justice cannot deny his seal, they shall proceed to judgment according to the same exception as it ought to be allowed or disallowed."

(a) The provisions of the Irish statute (28 Geo. 3, c. 31, s. 1) on this subject are:"Whereas it has been holden that bills of exceptions taken to the opinion of a judge at Nisi Prius are not examinable in the court in which the action is brought, and can only be examined upon a writ of error, brought in a superior court, whereby the party offering such bill of exceptions is subject to great delay and costs; be it therefore enacted, that it shall be sufficient if the judge to whom such bill of exceptions shall be tendered sign the same, and that it shall not be necessary for him to put his seal thereto, and that such bill of exceptions, so signed, shall remain with the clerk of Nisi Prius, and be incorporated in the postea, and be returned therewith to the Court in which the action is brought, which Court shall have authority to examine the same, and give judgment thereon, or make such order, either by arresting the judgment, granting a venire facias de novo, or otherwise, as shall be agreeable to justice."

same case, says that it was at "the importunity of counsel," it can scarcely
be supposed that the Court would, even at the importunity of any counsel,
have done that which they did not conceive that they had by law at least a
discretionary power to do; and though Lord Hardwicke and the rest of the
Court, in Reg. v. Preston-on-the-Hill (C. T. Hard. 236), refuse a similar appli-
cation, he does it on the authority of Sir Henry Vane's case, saying, "Lambert
does say
it lies to indictments, but I don't know that has been confirmed by the
determination of any court in Westminster Hall. The case of Sir Henry
Vane is contrary, and though it has been objected to that determination that
'tis unreasonable, the party should not have the same advantage where his
highest property is concerned as in civil causes, it should be remembered that
the party has not many other advantages in capital cases which are allowed
in civil causes; as he shall not be allowed counsel, nor shall have a writ of
error without leave of the Crown, as was determined in one of the Year-books,
and has never been contradicted, nor was it ever even pretended that in capi-
tal cases a bill of exceptions lay." Lord Hardwicke, however, admits that
the decision in Sir Henry Vane's case was not received without objection, and
in the very next sentence says, "In Sir Henry Vane's case it is said not to lie
in any criminal case, but that point is not settled, and, therefore, I will give no
opinion as to that. Lord Raymond, indeed, in The King v. Bounce (Hil.
2 Geo. 1) seemed inclined it would, but was not determined, and, in fact, none
was allowed, for I was Attorney-General at the time, and to salve the difficulty,
agreed to withdraw a juror." In The Rioters' case (1 Vern. 175) the Lord
Keeper, Sir Francis North, refused to issue a mandatory writ directing the
Lord Chief Justice to sign a bill of exceptions, saying, "he would not pre-
sume but the Chief Justice of England would do what was right in the case,
for possibly you may tender a bill of exceptions that has false allegations in it
and the like, and then he is not bound to sign it, for that might be to draw him
into a snare;" and said, "If they had wrong done them, they might right
themselves by an action on the case." And if this Court had a power to
grant such a writ, it was discretionary, as writs of error are in criminal cases,
which are discretionary only, and not de cursu." This case, therefore, plainly
does not go the length of deciding that a bill of exceptions will not lie, but
only that it is discretionary with the Chancellor to grant the writ, and not
imperative upon him to do so. In Rex v. Archbishop of York (Willes, 535),
in 18 Geo. 2, Abney, J. says, that the statute 13 Edw. 1, c. 31, was never
thought to extend to the Crown." This, however, was merely an obiter dictum,
and cannot be looked on as a judicial decision, being quite unnecessary to the
determination of the question before the Court, which was, whether in a quare
impedit, in which the Crown was concerned, a defendant could plead double
matter under the statute of Anne. In Rex v. McDonnell (1 Huds. & Br. 439),
which it is believed is (except the present) the most modern case to be found
in the books upon the subject, no reason whatever is given by the Court for
their decision. But it is perhaps not unworthy of remark, that in that case
the application was not absolutely necessary to further the ends of justice.
The defendant, McDonnell, was convicted of a libel upon an information filed
against him in the Queen's Bench; therefore, even supposing legal evidence
to have been rejected, or that the judge misdirected the jury, and although
these facts could not appear on the record, so as to be available in arrest of
judgment or on a writ of error, still the offence of which the defendant was
convicted being only a misdemeanor, it was open to him to have moved the
Court to set aside the verdict, and upon such motion he might have availed
himself of those objections. There is an American case in which it is stated
by Woodworth, J., in Ex parte Vermilyea and Others (6 Cowen, 555), that it
is settled law that a bill of exceptions does not lie in a criminal case; but it is
to be remarked that the authority upon which he mainly relies for this dic-
tum is Sir Henry Vane's case, decided 14 Car. 2, which has been already
referred to.

66

Coke, in his Second Institute, p. 427, speaking of the stat. 13 Edw. 1, c. 31, says, "This extendeth not only to all pleas dilatory and peremptory, &c., but also to all challenges of any jurors, and any material evidence given to any jury which by the Court is overruled."

The scantiness of authority on the subject has in all probability arisen from

THE QUEEN

V.

RICE, otherwise

ROURKE,

the tenderness and humanity of at least modern judges, who have been in the habit of reserving even very trifling points in favour of prisoners for the consideration of the twelve judges. But though such has been the practice, a case can easily be imagined in which the refusal to receive a bill of exceptions would amount to a denial of justice, as if in a case of felony a judge should misdirect the jury, or refuse the admission of legal evidence, the prisoner, if and HAYES. convicted, would evidently, in case the judge declined reserving the question, be left without a remedy, unless a bill of exceptions would lie in such a case. And it is submitted that, under such circumstances, to issue the writ would be doing no violence to the language of the statute; and that to hold in favour of life or liberty that the word "implacitatus" in the statute of 13 Edw. 1, c. 31, an Act manifestly passed for the ease and better protection of the subject, included criminal as well as civil proceedings, would only be to give such an interpretation to the statute as is best calculated to "advance the remedy." Surely it would not be straining the terms of an Act of Parliament further than the Court did in the case of Platt v. The Sheriffs of London (Plowden, 36), in which, with reference to a statute passed in the very same session of Parliament (St. West, 2), the Court said, "The statute de circumspecte agatis, which says, use yourselves circumspectly in all matters relating to the Bishop of Norwich and his clergy, is nevertheless extended to all other bishops;" and in the case of Stradling v. Morgan (Plowden, 205), it is said, with reference to the mode of interpreting statutes, after referring to various other cases, "From which cases it appears that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearances, and those statutes which comprehend all things in the letter, they have expounded to extend but to some things; and those which generally prohibit all people from doing such an act, they have interpreted to permit some people to do it; and those which include every person in the letter, they have adjudged to reach to some persons only, which expositions have always been founded upon the intent of the legislature, which they have collected sometimes by considering the cause and necessity of making the Act, sometimes by comparing one part of the Act with another, and sometimes by foreign circumstances, so that they have been guided by the intent of the legislature, which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and good discretion." See also the case of Egerton v. Studd (Plowden, 477-8), and the observations there upon the right construction of statutes.-[REPORTER.]

VOL. II.

O'BRIEN

8.

THE QUEEN.

COURT OF QUEEN'S BENCH, IRELAND.

January 26 and 29, 1846.

IN ERROR.

PATRICK O'BRIEN V. THE QUEEN. (a)

Indictment-Murder-Several counts-Repugnancy-Duplicity-General finding and

judgment.

An indictment for murder charged, in the first count, that one Patrick O'Brien "feloniously, &c., in and upon one Johanna O'Brien, &c., did make an assault, and did then and there take her in both his hands, and then and there feloniously cast, throw, and push her, the said Johanna O'Brien, into a certain part of the sea, by means of which said casting, throwing, and pushing the said Johanna O'Brien was then and there choked, suffocated, and drowned, by means of which she then and there instantly died." The second count charged that " he, the said Patrick O'Brien, on the same day, did make an assault on the said Johanna O'Brien, and with a certain stone which he then had in his right hand, in and upon the right side of the head of the said Johanna O'Brien, did strike, giving unto her a mortal wound, of which she then and there instantly died." The third count charged that "he, the said Patrick O'Brien, on the same day, did assault the said Johanna O'Brien, and with both his hands and feet did cast and throw her on the ground, and while then and there lying, with his hands and feet did kick and beat her about the breast, back, head, belly, and sides, giving to her by the casting and throwing, as also by the striking, kicking, and beating, several mortal wounds, of which she then and there instantly died."

Held. first, that the indictment was not double; secondly, that the several counts were not repugnant; thirdly, that a general finding by the jury, that the prisoner" was guilty of the felony and murder charged against him, in manner and form as by the said indictment was supposed against him," was sufficient without specifying by which of the means charged, death was produced; fourthly, that in such case a general judgment was not

erroneous.

THE prisoner was tried and convicted in 1846, before Mr. Justice Jackson, at the Summer Assizes, for the county of Clare, of the murder of his wife, Johanna O'Brien. The indictment contained three counts. The first charged that "on the 24th July, in the ninth year of the reign of the Queen, at Kilkee, in the county of Clare, he feloniously, &c. in and upon one Johanna O'Brien, &c. did make an assault, and did then and there take her in both his hands, and, then and there, feloniously cast, throw, and push her, the said Johanna O'Brien, into a certain part of the sea, by means of which said casting, throwing, and pushing, the said Johanna O'Brien was then and there choked, suffocated, and drowned, by means of which she then and there instantly died. And the jurors say, that the said Patrick O'Brien, her, the said Johanna O'Brien, feloniously, &c. did kill and murder, in manner and form aforesaid."

The second count charged that "he, the said Patrick O'Brien, on the same day, did make an assault on the said Johanna O'Brien, and with a certain stone, which he then had in his right hand, in and upon the right side of the head of the said Johanna O'Brien, did strike, giving unto her a mortal wound, of which she then and there instantly died, and the jurors say, that the said Patrick O'Brien did feloniously, &c. kill and murder the said Johanna O'Brien, in manner and form last aforesaid."

(a) Reported by W. ST. LEGER BABINGTON, Esq., Barrister-at-law.