the January sessions in 1842, and its final settlement in June 1843, had arisen from the obstacles raised by the respondents themselves. He contended that the provisions of the statute 13 Geo. 2. c. 18. s. 5, which directs that a writ shall not issue, "unless such certiorari be moved or applied for within six calendar months next after the making of the order complained of, had been complied with by the parties having moved or applied for the prior writ which had been quashed; that there was only one condition imposed by the act, and that was, that a motion should be made within the period prescribed, and that the writ might issue at any time; that in The King v. the Justices of Sussex (1) no application had been made within six months, and that the same observation was applicable to The King v. Bloxam (2), and the various other cases in which the writ had been quashed upon the ground of its being after the prescribed period; that if the application was made within the six months, the writ might issue after their expiration. It was to be inferred from the observation of Coleridge, J., "Suppose the application is made in time, but the Judge takes time to consider, and grants the application after the six months are expired," in The Queen v. the Inhabitants of St. Mary, Whitechapel (3), that this case differed from The King v. Rattislaw (4), inasmuch as there one of the Justices served was not present, and it was not necessary to decide this point; that though the general rule of practice in this court was, according to The Queen v. the Manchester and Leeds Railway Company (5), that a party would not be permitted to succeed on a second application, who had previously applied for the very same thing, without coming properly prepared, yet that such rule was not inflexible; and that the facts of this case would justify this Court in allowing a deviation from the general practice. There had been no laches on the part of the appellants. The affidavit on which the former writ had been obtained was in

the usual form, and it was the first time that such an affidavit had been decided to be bad.

PATTESON, J. said, that he would confer with the Judges who had heard the question of the validity of the prior writ discussed; and, on the following day, delivered the following judgment :-I have consulted with the other Judges, and we are all of opinion that you cannot by any possibility attach the former proceeding to this motion. We must, therefore, consider you as now making a new application, which, not being within six months, is insufficient to satisfy the terms of the statute. The only mode by which any other conclusion could be arrived at is, by supposing the application to have been made within the six months, and the writ to issue upon that application, after their expiration; but in order to do this, we must say, that the original motion is in some way connected with the present one. We cannot, however, do that, for the original motion was made on an insufficient foundation; it consequently failed, and having failed it is gone altogether.

Rule refused.

THE QUEEN v. WILLIAM BURNBY.

Indictment-Perjury under Customs Act

-Jurisdiction.

Where the Court of Queen's Bench will not quash or stay proceedings on an indictment, if there is no obvious defect upon the face of the indictment.

By 3 & 4 Will. 4. c. 51. s. 29, a party making a false oath before a Surveyor General of Customs, on any inquiry before him relating to the Customs, shall be deemed guilty of perjury, and liable to the pains and penalties to which persons are liable for perjury. And by 3 & 4 Will. 4. c. 53. s. 112, no indictment shall be preferred, or suit commenced for the recovery of any penalty or forfeiture under that or any other act relating to the Customs or Excise, unless such suit shall be commenced in the name of the Attorney General, or unless such indictment shall be preferred under the direction of the Commissioners of Excise.

A party was indicted under the first-mentioned act for perjury committed before a Surveyor General of Customs, and it was not averred in the indictment, that the Commissioners had given directions for its being preferred, but it was negatived by affidavit that any such directions had been given ;—the Court, nevertheless, refused to interfere, at the instance of the defendant, either by quashing the indictment, or by staying the proceedings.

The indictment stated, in the first count, that one S. P, before &c., was a person employed in her Majesty's Customs, and had been and was charged by and at the instance of the Commissioners of her Majesty's Customs, (amongst other things,) with having in his capacity as baggage officer, at Freshwater, in the year 1840, knowingly and in violation of the trust confided in him, passed under its real value a wardrobe belonging to W. Burnby, landing waiter, the said charge being a charge relative to and concerning the Customs; and that a certain examination and inquiry was in due manner instituted, taken, and made before W. R. W, one of the Surveyors General of her Majesty's Customs, touching and concerning the said charge, and touching and concerning the conduct of the said S. P; and that upon such examination, one William Burnby was produced, and did appear as a witness touching and concerning the matters of the said inquiry, and was examined as a witness, and was duly sworn, &c., before the said R. P. W, he, the said R. P. W, so being such Surveyor General, as aforesaid, having lawful and competent power and authority to administer the said oath to the said William Burnby.-[The indictment then assigned perjury in the usual manner, on certain evidence given by Burnby, as to the value of the wardrobe.]

The second count alleged, that an inquiry was instituted before the said W. R. W, touching and concerning the conduct of S. P, as an officer and person employed in her Majesty's Customs, upon certain matters and charges relative to the Customs before then complained, and brought against him, the said J. P, by and on behalf of the Honourable Commissioners of her Majesty's Customs, and for ascertaining the truth of the facts in relation thereto, and that upon

the last-mentioned inquiry, the said W. Burnby appeared and was examined, &c., and took his corporal oath, &c., the said lastmentioned oath being then and there administered to the said W. Burnby, by the said W. R. W, so being such Surveyor General as aforesaid, and having lawful and competent power and authority to administer the said last-mentioned oath, and contained similar assignments of perjury.

At the Sittings at Guildhall, after Trinity term, before the jury were sworn, it was objected, that though the statute 3 & 4 Will. 4. c. 51. s. 29. (1) gave the Surveyor General power to administer an oath, and made persons taking a false oath guilty of perjury; yet that the statute 3 & 4 Will. 4. c. 53. s. 112. (2) made it necessary that

(1) Which enacts, "That upon examination and inquiries made by any Surveyor General of Customs or any Inspector General of the Customs, for ascertaining the truth of facts relative to the Customs, or the conduct of officers or persons employed therein, and upon the like examinations and inquiries made by the collector or comptroller of any out-port in the United Kingdom, or of any port in the Isle of Man, or made by any person or persons in any of the British possessions abroad, appointed by the Commissioners of his Majesty's Customs, to make such examinations and inquiries, any person examined before him or them as a witness, shall deliver his testimony on oath, to be administered by such of the surveyors general, or such of the inspectors general, or such collector and comptroller, or such person or persons as shall examine him, and who are hereby authorized to administer such oath; and if such person shall be convicted of making a false oath, touching any of the facts so testified on oath, or of giving false evidence on his examination on oath, before any of the Surveyors General or Inspectors General of the Customs, or such collector or comptroller, or such person or persons in conformity to the directions of this act, every such person so convicted as aforesaid, shall be deemed guilty of perjury, and shall be liable to the pains and penalties to which persons are liable for wilful and corrupt perjury."

(2) Which enacts, "That no indictment shall be preferred, or suit commenced, for the recovery of any penalty or forfeiture, under this or any other act relating to the Customs or Excise, (except in the cases of persons detained and carried before one or more Justices, in pursuance of this act,) unless such suit shall be commenced in the name of his Majesty's

either the proceedings should be in the name of the Attorney General or the consent of the Commissioners of Customs should have been obtained previously to instituting it. -The record having been withdrawn,—

The Attorney General in this term obtained a rule nisi on behalf of the defendant, for quashing the indictment, on the ground that it did not appear that it had been preferred with the sanction of the Commissioners of Customs, and also on the affidavit of the assistant secretary of the Commissioners, that in his belief no order for the prosecution had been made by them.

Cockburn, Montagu Chambers, and Poulden shewed cause.-First, the Court will not, at the instance of the defendant, quash an indictment for matter not appearing on the face of it. No case can be found in which this has been done. In The King v. Belton (3), Holt, C.J. refused to quash an indictment for pulling down fences, and observed, "That the defendant might as well move to quash a declaration without pleading to it." And in another case, referred to in the report, the same Chief Justice said, "We never quash indictments for forgery, perjury, &c." So The King v. Johnson (4), Com. Dig. Indictment,' (H). Secondly, the 112th section of 3 & 4 Will. 4. c. 53, does not apply to this case, but only to proceedings for penalties and forfeitures. Lastly, the assent of the Commissioners need not be alleged, nor would such an allegation be traversable.

Attorney General, or in the name of the Lord Advocate of Scotland, or unless such indictment shall be preferred, under the directions of the Commissioners of his Majesty's Customs or Excise, or unless such suit shall be commenced in the name of some officer of Customs or Excise, under the direction of the said Commissioners respectively."

Section 113. enacts, "That if any prosecution whatever shall be commenced for the recovery of any fine, penalty, or forfeiture incurred under this or any other act relating to the Customs or Excise, it shall be lawful for His Majesty's Attorney General, if he is satisfied that such fine, penalty, or forfeiture was incurred without any intention of fraud, or that it is inexpedient to proceed in the said prosecution, to stop all further proceedings by entering a nolle prosequi, or otherwise."

(3) 1 Salk. 372.

(4) 1 Wils. 325.

Sir F. Pollock (Attorney General), Thesiger, J. Jervis, and F. Pollock, contrà.The rule is drawn up in the alternative, either to quash or to stay proceedings. If it is clear that the consent of the Commissioners has not been given, then the proceedings can lead to no result, and the Court will stay them. The case comes within the letter of the 112th section of 3 & 4 Will. 4. c. 53. It is said, that this is not an indictment for a penalty or forfeiture under the act; but that section must be read so as to apply to all indictments under the act, and as if a stop were after the word "preferred," and another after "forfeiture," the words "penalty" and "forfeiture" referring only to the word "suit." That must obviously be the intention of the act, as penalties and forfeitures are not generally recoverable by indictment, and under this particular act (section 75), the mode of recovering them is by action or information.

[WIGHTMAN, J. referred to section 53, by which persons making signals to smuggling vessels are liable to a fine of 100l., on indictment or information.]

Even in that case, the indictment would not be for the penalty, but for the offence. Then the consent of the Commissioners should be averred in the indictment, or, at all events, proved at the trial. In this case, it is clear, that it could not be proved, as they gave no such consent.

[WIGHTMAN, J.-The 112th section embraces both Customs and Excise, which is not the case with section 75.]

The Court will interfere to prevent collusion; and this prosecution is, no doubt, defended by the Commissioners.

[COLERIDGE, J. referred to section 116, by which it is enacted, that the averment that the Commissioners have directed proceedings to be instituted shall be sufficient, without proof of the fact, unless the defendant shall prove the contrary.]

That had not before been adverted to, but it would go to shew the necessity of the

averment.

LORD DENMAN, C.J.-I think that there are insurmountable difficulties against making this rule absolute. In the first place, I am not by any means sure that the general words in the 112th section of 3 & 4 Will. 4. c. 53. apply to a case of this description.

Where a party has committed perjury before the Surveyor General, a power to indict is given by the earlier act, and this is sought to be controuled by the terms of a subsequent act. My opinion is, that the words of the latter section do not apply to indictments for perjury, but to offences against the Customs and Excise laws. But, again, supposing that they do apply, still I doubt whether it would be essential that it should appear on the face of the indictment that the Commissioners directed the indictment to be preferred. If it were essential that it should so appear, the omission would be a ground for arresting the judgment. Then, as to staying the proceedings, the same difficulties again recur, and we should be deciding a matter which ought, I think, never to be dealt with in this summary way. Then there is some degree of discretion to be exercised in a matter of this kind; and I am not prepared to say that if the act applied to the case, that I should be prepared, as a matter of discretion, to grant the application. No conspiracy or collusion is suggested. If a case of that kind were made out, it might be well to interfere, but even in that case the Attorney General would have the power of entering a nolle prosequi. It has been remarked, that the Attorney General ought to be loth to interpose. I agree; but if that be so, does not the remark apply with tenfold force to the application to this Court? We are bound to see that justice is done. I indeed granted the rule with some reluctance, and have no hesitation in saying, that hardly any case could be laid before me, on affidavit, sufficient to induce the Court to exercise powers which it appears the legislature intended to lodge in the hands of the Attorney General. The defendant then, if he is in the right, should make that appear in such a course of proceeding as may bring him within. the act. The rule must be discharged.

committed under such circumstances. Why then should the Court interfere, when by the very argument, it is conceded, that if the powers given by the act are abused, the Commissioners might apply to the Attorney General to stay the proceedings? I think that this Court should not interfere.

COLERIDGE, J. This is an indictment for perjury. Without going into the particular acts of parliament, thus much must be admitted, that the Court will not interfere to stay proceedings, so long as there is a particle of doubt as to the propriety of so doing. Now, is not this a case of doubt? It is contended, that the case is within the 112th section of the latter act, 3 & 4 Will. 4. c. 53. Upon that point I am inclined to agree with the Attorney General; but I feel great doubt on the second question, namely, whether there is any necessity that the assent of the Commissioners should appear by averment. It is important to remark that no injustice can be done by our refusal to interfere. If the assent of the Commissioners is by law a condition precedent, then the party indicted must have some way of availing himself of the omission to get such consent, without the interposition of the Court. At all events, if the law has put the power of interfering in the hands of the Attorney General, there is no necessity for our interference.

WIGHTMAN, J.-The offence here charged might not only relate to the Customs, but might most materially affect the rights of third persons. I can conceive cases where the power of interference might be most material, even where the Excise or Customs alone was concerned; but it may be so in all cases where the rights of the public are concerned. The arguments used in support of the rule would apply equally to a case of forgery under sect. 27, and it might be that such forgery would be most prejudicial to the interest of third parties. Can we hold that an indictment under that section might be immediately stopped on summary application?

Rule discharged, without costs.

A count in an indictment for misdemeanour, with the venue "Lancashire" in the margin, stating that certain unlawful assemblies were held by evil-disposed persons at "divers places," and that the defendants, "at the parish aforesaid, in the county aforesaid," unlawfully aided and abetted the said evil-disposed persons:-Held good on motion in arrest of judgment, the "want of a proper or perfect venue" (no place being stated where the unlawful assemblies were holden) being cured by the 7 Geo. 4. c. 64. s. 20.

A count, stating that the defendants, together with other evil-disposed persons, &c., unlawfully did endeavour to excite Her Majesty's subjects to disaffection, &c., no place being stated,-Held bad on motion in arrest of judgment, there being no words of reference to the venue in the margin, and the defect not being cured by the said statute.

Misdemeanour. The defendants were tried, before Rolfe, B. at the Liverpool Summer Assizes, 1843, on the following two counts (being the fourth and fifth) of an indictment preferred against them. All the defendants were convicted on the fifth count; on the fourth, Feargus O'Connor and some others were acquitted, Macdowall and the remainder convicted.

Fourth count. Lancashire to wit. And the jurors aforesaid, upon their oath aforesaid, do further present, that heretofore, to wit, on the 1st of August in the year aforesaid, and on divers other days and times between that day and the 1st of October in the year aforesaid, and at divers places, divers evil-disposed persons unlawfully and tumultuously assembled together, and by violence, threats, and intimidation to divers other persons, being then peaceable subjects of this realm, forced the said last-mentioned subjects to leave their occupation and employments, and thereby impeded and stopped the labour employed in the lawful and peaceable carrying on by divers large numbers of the subjects of this realm of certain trades, manufactures, and businesses, and thereby caused great confusion, terror, and alarm in the minds of the peaceable subjects of this realm; and that afterwards, on the NEW SERIES, XIII.-MAG, CAS.

1st of August in the year aforesaid, and on divers other days and times, between that day and the 1st of October in the year aforesaid, at the parish aforesaid, in the county aforesaid, the said defendants, &c., together with divers other evil-disposed persons to the jurors aforesaid as yet unknown, did unlawfully aid, abet, assist, comfort, support, and encourage the said evil-disposed persons in this count first mentioned, to continue and persist in the said unlawful assemblings, threats, intimidations, and violence, the said impeding and stopping of the labour employed in the said trades, manufactures, and businesses, with intent thereby to cause terror and alarm in the minds of the peaceable subjects of this realm, and by means of such terror and alarm violently and unlawfully to cause and procure certain great changes to be made in the constitution of this realm, as by law established, against the peace of our said Lady the Queen, her crown and dignity.

Fifth count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the defendants, together with divers other evil-disposed persons, to the jurors aforesaid as yet unknown, afterwards, to wit, on the 1st day of August in the year aforesaid, and on divers other days between that day and the 1st of October in the year aforesaid, unlawfully did endeavour to excite Her Majesty's liege subjects to disaffection and hatred of her laws, and unlawfully did endeavour to persuade and encourage the said liege subjects to unite, confederate, and agree to leave their several and respective employments, and to produce a cessation of labour throughout a large portion of this realm, with intent and in order by so doing to bring about and produce a change in the laws and constitution of this realm, and against the peace of our said Lady the Queen, her crown and dignity.

Upon being brought up to receive the judgment of the Court, in Easter term (May 4), a motion in arrest of judgment was made on behalf of the several defendants who had been convicted upon the above counts, by

Dundas, Murphy, Serj., Bodkin, and Atherton. They contended, both with regard to the fourth and fifth counts, that they were bad in law, as no special venue was stated in the body of those counts, and that

F