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    COUBT OF QUEEN'S BENCH , Saturday , Jcse 3 . TTTR QITEKJf V . O ' COSSOB XSI > OTHERS . Tbar Xobdships baying Infcaated that fhey wished to tear the counsel for the defendants on the question ofvenne only , Mr . "Rut . *; proceeded to address the Court He had to appear in snppori of tb ? role for arresting the judgmeniin this-case ; and . confining himself entirely to the point their Lordships had suggested , namely , the defect is venue Gat appeared on toe fourth and fifth connts , 1 » should sribmit that the case on behalf of the defendants ought to succeed , and he would pray their Lordships * attention particularly to the effdnce ^ karged in the fourth count , before he snbmitted the snrands npon ¦ Sbicb be relied for the jndgment of the Court being in

    hiB favour . The fourth coarit in effect charged , that dives persons , on divers days between the 1 st of August and the 1 st of October , at divers places , tumnltnonsly assemble !} together and by violence impeded labour , and thereby caused terror and alarm . That wss the offescB , if anj , that W 3 s charged on the face of this indictment , and ie begeed tbeir lordships would bear in mini that the indictable offence charged was , that divers persons at divers places tnaiulhionslY assembled and by violence impeded labour , and then it went on to charge vrliat in & caae of felony would be a charge of being an accessory . The allegation -was , that the defendants at Manchestetj in Lancashire , did aid , abet , ic-, the said persons to continue and persist in , the saldfonlawfol assemblies . It was , therefore , an

    ineieiimit wberenpon two steps were essentially necessary to . prove tbe -corpus delicti alleged to be charged against the principal criminals , and to prove xhsA ths defendants were accessories to that crime , whatever that might be . As the count was framed , lie submitted that the'want of alleging any place for the commission of ihe principal offence "was fatal to the count , as matter of objection in point of substance , and also fatal on account of * he rales of pleading . He would first address Trimnrtf to that which iras in the nature of an objection in point of substance . In the want « f alleging sny places prevented it appearing upon tbe record that any indictable offence at all was commited by the principal offenders , of course the charge against the accessories wonid fail to the ground unless the

    principals -were guilty of an Indictable offeirce , the accessories -were accessory to tint wfcich was not-indictable , . and , therefore , would not be themselves indictable . The argument on this point lay In a small compass , — "namely , that it was perfectly consistent with aD that was alleged , that the principal offenders might not have been indictable for the acts alleged ; and'ha took it on the ground that those acts might have occurred in parts of the glebe out of the dominion * of her Majesty , which was consistent with the allegagation , here , that the acts charged might have taken place' -beyond tbe limits of her realm , and if they had taken place there and would not be indictable , this point would be established . ! Tbe concessions made by his Learned Friends appeared

    to him to go a long way to establish it . The learned Attoruey-Gansral , who had opened thlB case , said the chsrseagsinst tfcepriBtipal offenders waschitflyjintended to spread over divers counties . Tbe description went on , ttiata large portion of the realm was in an unsettled state , and that the acts complained of were going on in that portion of the realm , and bis friend admitted that tbe description did apply , and was intended to apply Without limitation , to direxs counties , to eve ?; county in the realm , without limitation . In the course of the argusient their lordships bad pressed Mb Learned Friendsto s » y why the principal offence should be confined to the eountles of England ? "Would it not be cgu 23 y Indictable if committed in Scotland or Ireland ? His mend said that if the tumultuous assemblies had

    taken place m Scotland or Ireland , or in any part of fixe realms of her Slajesty , although not within the jurisdiction of this Court , that would constitute an indictable offence for aiding and abetting in . this country ; and he might , therefore , state is approaching -this branch ef the argument , his friend's principle won ) d . go to say that if the offence occurred in any part of the Queen : * dominions , in Scotland or Ireland , or any of the colonies , a contest for labour "between the blacks and the whites in Jamaica , an indictable offence would be constituted , and bis LearnBd Friend bed so stated it If the description of the principal offence was conceded to apply to any part of the dominions of tbe Queen , whether witbin this hemisphere or tbe other hemisphere be would ask what there was to fix the acts of the

    divers persons who assembled at the divers placeswhat there was to show that those places must be within the dominions of the Queen ? There was no description given except that the assemblies occurred in divers placea ; and surely be might contend with confidence that in « rinifn * l pleadings it must appear upon ike face of tbe indictment that all the essential facts that constituted guilt were there alleged , as bad been , suggested when this rule was moved . It was perfectly possible that there might have been is Prance a disposition against lifcglifh artisans beyond tbe power of tbe Queen—at was perfectly possible that tumultuous assemblies might have taken place , and that the subjects ¦ of thfc Qnften employed in foreign manufactories might

    bave been impeded in their labour , asd that terror bad been occasioned to the subjects of the Queen . That was tbe full amount of the description of the offence ; and 35 t . it was possible to follow it up , assigning the . place out of the kingdom , either in Paris or 2 few Tori , that would be intelligible . In r" ™™ " 1 proceedings there ought to be certainty , and be submitted that on this CTound this indictment , whkh was of a perfect }? anomalous description , and was laid soy wide fci Hie purpose of erring grest advantage to the prosecutors if they departed from precedent and brought forward an -unusual charge in an nnufual form , for the purposes bs bad aentioned , —if there was a defect in an essential allegation , he asked their Lordships to give the defendants the benefit of tbe known rates of ihe

    law and construe the indictment atrictJy ; and then , it did sot appear that any offence had teken place within tbe jurisdiction of tbe Court . But , passing irom this point to tbe objections founded an tfea known rules of criminal pleading , and for this branch of the argument , that the principal offenders were charged with an indictable offence , be submitted that this count was bad for want of alleging a venue to the principal offence , that it was bad on that ground , and was not eased by the statute of tbe 7 th George IT ., c 64 , sec . 20 . Mr . Justice Coleeidge would ask whether this did not rest os wbat the Learned Counsel bad said in the beginning , that if it bad been a ease of felony the charge amounted to that of an accessory before the fact , and that there bang no felony committed tbe charge of accessory feB to the ground ? Supposing iV were a case of substantive misdemeanour ? Mr . Erie observed , that be was sow coming to tbe second point of bis argument .

    Mr Jnstice t 3 oiEHTDBB wooid suppose the case of iudfing a Frenchman to murder a Frenebmaa in ^ France , would not the inerting in this country be an indictable offence st common law ? Mr . t ^ t .-r sb&nid state that inciting one Frenchman to defraud another French subject was not an indictable offence so -far as be knew . Of course there might be facts such -as would bave tbe effect of involving the two countries in a war , "which might vary tbe case j but the inciting to defraud , according to bis limited

    knowledge of tbe laws of this country , would not be indictable . He wished to draw the attention of the Court to this point . -If Ibis paint bad been an indictment for felony as the principal effence , and the defendants were alleged to lave been accessories , the indictment was framed in such a way as to make that proof necessary , whicb wenld have been necessary had the charge been that of felony . Tbe authorities which bad been cited by tbe Solicitor-General , in misdemeanours all were principals , or they might be taken seme as principals , some as accessories . if

    Mr . Justice Coi ^ ebidge would ask there might sot be a third case of substantive misdemeanour ? Mr . 2 JRTE would admit that , and he was going to point attention to the caaes ^ f " The KiBg v . Higgin * , " aud "The King t . Stock , ** between which and the -case sow before tbe Court there was a substantial distinctioBThe present case required proof of a principal misdemeanour , and the defendants alleged that no principal misdemeanour bad been shown . The charge was a charge that there were tumultuous assemblies , and

    that the defendants aided and abetted the persons who took part In these tumultuous assemblies , to sountez > ane 8 the said assemblies—not that they incited them to assemble together , or commit any original misdenemoffit , but the charge alleged the existence of a positive principal misdemeanour , and that tbe defendants aided and abetted those parties to continue and assist in tbe said meetings . His friends bad sought to avoid this by shifting the ground , that they might be charged as principal misdemeanants in endeavourins to -procure tbe commission of the offence .

    " M > , Justice Coleridge supposed the Learned Counsel admitted ibalwruid be indictable ; but would it be an offence to commit that cut of tbe realm which ¦ wcJd be a jnisdeaeanonr if committed in England ? 3 Jt . Ebxb imagined it wonld . Mr . Justice Colebidge—If it was to incite a person out of the realm it would net be an offence ? Mr . £ bts—To commit murder out ol the realm -was statutory , but f or any other offence the judge would not iare jnnsaScSon . He was not aware of any few that would make it a misdemeanour to endeav 3 nr Jo stir Bp tbe subjects of aforeign country to destroy the rights of property . There might be a country when there wrts lio protection . He T « fl pressed upon tfceir Lordships * aitehtion tbe Jurm of tbe indictment , that divers persons were gofltj-ef an indictable misdemeanour , and that tbe defendants aided and abetted them . Be bad

    BtifeiBitted that ikwas not an indictable offenee , and he ' trbnld ^ iow submit , that even assuming it to be indict-1 abl e _ i DflverQielasa , lor want of -tentie , the objection was Jttal , and fhst it was aot cured by the xtattte . To « jnsBnte : ii » uttsmce hart ahargod , it was perfectly clear that tber * auxt b » v » bM » as mal&wfal arawfcHng aaa-ao inpadisf of labov by violent . That * -fkcte moBtbe eitabUtbed . it "" »* 9 Kita enentasl to ti » in tifeftmmt , beekase itB tbuto was , that the defendanta tad aided and abetted tbe personi to continBe asdasbMj and , aierefore , the offence wm an easential fact , ana for tbe want of a place being stated in tbe allega tion on the face of the indictment , tbe count was bad according to the mles of pleading . Be would trouble lbs Coort wiHi alew authorifies , to-sbow that time and place were material facU , and must be stated on the indictoent ; Comyn ' s Jiigesl , " Indictment , " * sec . 2 ., showed that you must not on ly in the first instance

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    state the time and place , but that "it must be repeated to every material fact ; and , therefore , quod 10 IT apud B- iTisaltum fecit el cum gladio felonicc percussil , without saying ad tune ei ibidem ptrcussii , is bad . " So the reference ought to be to a time or place certain } as if it says , quod percussit apud A in comiiaiu prcedido , where two counties are mentioned before , thercgh one was in the addition only , 'unless they alleged a place for a material fact , the indictment was bad . " In Hawkins , boek 2 , c . 25 , b . 83 , it was said it seemed agreed by all books that no indictment was good without expressly shewing some place wherein the offence was committed , which must

    appear to bave been within the jurisdiction ef the C nut in which tbe indictment was taken , and must be so alleged , as ts be free from all repugnance : and inconsistency . This matter also was mentioned in 5 I . IS ., 620 , the case of " TbB King v . Holland , ' * who was indicted for malversations in office during the time be was one of the Council at Madras . Mr . Justice Sailer there said , " that every material fact which : is issuable and triable must belaid with time and plaoe ; it must be laid with a venae , for tbe sake of trial ; and wherever a venne is necessary , time must also be mentioned . " This case only aet up the general proposition for which be was contending . <

    Mr . Justice Colebidge asked if it must be laid in some place in England , to wit , at London ? Mr . Eblb said , according to the rules of pleading , It onght to bave been laid is that way , and in many other cases it wss recommended that the Indictment should state tbe matter suggested by Mr . Justice Coleridge , to wit , at London : bnt all be was arguing was , that they must assign a place for tbe essential fact . 23 r . Justice Coleridge observed , that the Learned Counsel must go back then to the principle of the old cas&B , where tbe place would have been the real place , or tbe place in the county where the grand juxy sat Mr . Eele would allude to tbe case of the rebels who were tried in Surrey . Tbe indictment said , " To ¦« rit at Croydon . " They were fonnd gnilty ' of rebellion ai Carlisle , although the indictment was ' to "wit , at Croydon . **

    Mr . Justice Coleridge referred to a cast in 4 Can , and Payne , 394 , where 51-r . Justice : Bayley bad directed to words of a venue , to be inserted > l at St . iiarylebone . " Mr . Ebxe said , they might name a place within the jurisdiction , as in the Court o ! Admiralty and tbe Ceotral Criminal Court . : . Mr . Justice Colekidge—That must be according to tbe fact witbin the jurisdiction . Mr . Erle said , the objection was , that they did not allege any place for the existence of this offence . It was as if they had not said anything at all about tbe place . He submitted that tbe ^ point allnded to by Mr . Justice Coleridge of alleging " thereat place" and then adding " to wit" stood on no good foundation , and ,

    therefore , it was now no longer necessary . Tbe indictment was net vitiated by it . He would advert to the case of " The King v . Haynes , " in 4 Manle aud Selwya , 214 , which was an indictment against a miller for receiving corn to be ground , and returning bad or mixed meal ; and he brought tbe case before their Lordships because it was there held , upon error , to reverse a judgment after Haynes had been convicted , that the indictment was ill , if it did not show a certain place where the defendant received tbe barley to grind , the indictment alleging " the jnroTs . fee ., present thatF . Haynes , late of the parish of Brasted , in tbe connty of Kent , maier , on the 5 Sh of March , in the 54 th Geo . 111 ., and long before , and continually thence until ' the day of taking the inquisition , was possessed of and did keep ,

    and is still possessed and doth keep , a certain common and public mill , called a water mill , situate at the pariih aforesaid , for tbe purpose of grinding wheat and other corn therein ; but tbe indictment did not allege that bs received the corn in the county of Kent to . be ground ; and Lord Ellenborough said , " Then , as to the want of avenue where either of the parcels of ; barley was received , I bave been endeavouring to see if it might not be dispensed with , bnt upon looking to the indictment , I find that the defendant received the barley for the purpose of being ground at the mill , and that tbe purpose is a fact constantly referred to in all the subse quent allegations ; for they all relate to the barley bo received by the defendant as aforesaid . Therefore it seems to me that the indictment is defective , for want

    of a venue to a-fact which is material , and may not be dispensed with . " He wcnld put that as an authority , where the objection was taken after verdict , and in a ease where it almost appeared to be implied that the miller would receive the com at the milL iBut it was possible that Haynes might have received the com at another place , and for want of alleging where it was received tbe indictment was held bad . In the case quoted it was sot averring a material fact But the present offence , as aet out in tbe fourth count , was alleged without any allegation of place . 'Upon that broad general principle tbe indictment would be bad , ior a material £ tct wss alleged without any place . This objection bad been attempted to be cured in various ways : and it was contended that this fault was

    by analogy cured by the statutes of amendments and fBofaOs , and his Learned Friend the Solicitor-General had contended before their Lordships that this objection was cured after verdict by the 16 th and 17 tb of Charles IL , c 8 , where , after curing many defects , it was enacted in the first section , "That no judgment eball be arrested for that there is no right venue , so as tbe causes were tried by a jury of-the proper county or place where the action is laid ; " and his Learned Friend bad cited , in support ef that view , a variety of authorities . He had cited the case of " Skinner v . Holt , " in Saunders , and other authorities ,

    « II of which were eases after verdict , and all were defective for want of alleging a place . In two late cases a similar defect bad been held to be cured on demurrer , under the statute 4 and 5 Anne , c . 16 . This argument of his learned friend , tbe Solicitor-General appeared to Mm strongly to confirm tbe objection . Before the statutes of feofails this objection would have been good in civil and criminal pleadings , but those statutes applied only to civil pleadings . Tbe statutes ; relating to curing defects after verdict were confined to civil pleadings , and did not relate to indictments . The law as to indictments remained tbe same as it was before these statutes came into effect .

    Mr . Justice Patteson said , in construing tbe late statute of amendment , the 7 th and 8 th of George IT ., they must be guided by the analogy of conBtructioB put npon tbe other statutes of feofails and amendments . Mr . BR . LE continued . —Anotberargumentniuch pressed on their Lordships * attention , tbe calling the prtaeipal offence an " unlawful assembly , " was not : a material fact but mere matter of inducement . The cases of " The King against Fuller ** and " The King against Stotf' bad been quoted , but be submitted that these cases were perfectly distinguishable from tbe present The indictment charged tbe procuring and " encouraging" others to unlawfully assembling ; bnt bo act cf Parliament had made this an offence . In "The King against Fuller" the substance of tke charge was that

    the defendant Fuller , contrary to tbe 37 th George III ., c 70 , advisedly endevoured to Bednce persons serving in his Majesty ' s forces by sea and land from their duty and allegiance , and by this statute ! all persons convicted of this conduct were to be adjndged guilty of felony , and suffer death as felons with * out benefit of clergy . It was urged in that case that the gist of the statnte was in tbe word " seduce , ' * and that therefore the means ought to beset forth . The answer was , that the " endeavour to seduce" was but a conclusion of fact , and that the fact was fully expressed by the mere force of the word " endeavoured , " toi , without specifying the means employed . This was an indictable misdemeanour , created by act of Parliament The charge of Raiding and

    abetting" was a charge the technical meaning of which was known to the criminal lawi and was ! understood technically as being accessory before or after the fact Tbe case of " The King v . Biggins , " in 2 East's Reports , page 4 , was not an cfieace created by act of ^ Parliament , and in that case it was very much discussed whether the " soliciting ** a person to comaait an offence , without showing that the offence was zcommittedi was indictable or not ; and it was there held that " to solicit a servant to steal his master ' s goods is a misdemeanour , though it be not charged in the indictment that the servant stole the goods , nor that any other act was done except tbe soliciting and inciting , and such offence is indictable . ** But it could not be said that this argument was applicable to the present case . There was no allegation of soliciting evil-disposed persons to collect in unlawful assemblies . The fourth count only alleged

    that the defendants " aided and abetted , " and it was perfectly possible to " aid and abfcf without any communication between tbe principal offender and the accessory . In the case of a burglary being committed in the knowledge of a party who saw the . peace officer coming , and who yet , from hatred to the ~ landlord of the bouse , was desirous that the offence should be completed , and who diverted the attention of the officer , that party would be an " aider and abetter" in tbe felony , without there being any communication between tiie parties . According to the description of tbe facts , xnsisy of these defendants might bave bad no earthly communication with any of thB principal defendants . Then , would it not be putting a most Etrange construction on this indictment to say that the defendants were charged with " soliciting * " to commit an offence , when tbe defendants might merely have \ " aided and Kbfetteri ?"

    Mr . Justice PiTissos—There are other words besides " aiding asd abetting" in the count , Mr . Erie ; there are " assisting , comforting , supporting , and enceuraging . " Support shows support in doing something that is actually being dona j Mr . £ kls believed there were other words . In the understanding of lawyers this was a charge of being accessory before the fact . If they supposed a rebellion , and persons were Jo send down arms to tbe lebels , b « submitted that that would be aiding and abetting , comforting ^ assisting , supporting , and enconraginf tbe rebels , and yrt ftnrifbt be sb aet dow without a single ord

    w of ommukatlon between she putiM to bring II wiVhiatbe case of "The King t . Higgisi . " He confidently tilled that there was nothing in tbe count from which the defendants could understand that they were charged witbbaving " solicited" any person to commit an offenee . In the case of " The King V . Bnrdett , *' reported in 4 BamewaH and Alderson , 458 , the point much discussed by the Conrt was whether tbe defendant would be guilty of as indictable offence for writing a libel with intent to publish it in the county where it ¦ was written , if afterwards it were published in another county ; and there Holroyd , J ., held that writing a

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    libel with intent to publish it , showing afterwards that it was published , was an offence per » , and then said , "If the defendant is charged with writing and witb publishing a libel , and he wrote it in Leicestershire and published it in Middlesex , an offence is committed in cither place , and . therefore it may be well tried in either county . " This case did not appear to him to further the argument of his Learned Friend . He would refer to the case of " The King v . Scott , " in 2 East Pleaa of the Crown , pag § 780 , where it was held that indictment against a receiver of stolen goods need not allege time and place . It was sufficient to allege the fact of stealing the goods and their receipt ; but this was a charge under tbe statnte of tbe 5 b . of Anne ,

    c . 31 , s . 6 . which made a substantial misdemeanour to receive stolen goods , knowing them to be stolen . Section 5 enacted I that a party receiving stolen goods , knowing them to be stolen , might be proceeded against as an accessory after the fact ; but here the receiving "knowingly" was the gist of tbe offence ; and , although it was alleged that a stealing must have taken place , yet for the purpose of this offence no distinct act of stealing need be established . If the property was received by tbe defendant , without inquiry and for small value , that would be good evidence to go to the jury that tbe defendant bad received the goods knowing them to be stolen , without any evidence whatever being given of the goods being stolen goods .

    Mr . Justice Coleridge—You must state them to be goods belonging to somebody . Mr . Erle would submit , that after this case of " The King v . Stott , " ] It would be sufiSolent to turn to tbo statnte of Anne ; and say the defendant received certain stolen goods knowing them to be stolen . Mr . Justice Colebidge . —Tbe averjnent that the goods " had been stolen must be proved , as it is a material fact It is no matter on this principle whether the fact be proved in tbe ordinary way , by evidence or by admission . Mr . Erle . —In point of pleading , you need not allege tbe stealing , but that the goods were " stolen goods . " Lord Dekman—You must prove that they were stolen goods .

    Mr . Erle—That they answord to the descriptionso to speak—of " stolen goods . " The Learned Counsel then cited a case from Fiizgibbon , page 123 , where the indictment being for keeping away a witness from the trial of a misdemeanant , it was moved in arrest of judgment , that it ought to have stated that the defendant knew that there was a criminal charge , and that the trial was coming on . The answer was , " No ; the charge is sufficiently stated in this , —that she , knowing the indictment was coming on to be tried , endeavoured to keep away the witness : " the endeavouring to keep away is the gist of the offence—the state of mind constitutes tbe offence , combined with tbe actual endeavouring . :

    L * rd Denman—Tha " state of mind , " and endeavouring , would of themselves be , in certain casts , no offence . Thus , suppose tbe case of there having been no real offunce , or of tbe trial coming on before a court ef no jurisdiction—tbe keeping away a witness mieht be no offence . So that then it is not quite clear that the existence of -the legal grounds of trial was not a material fact So with tbe stealing , or an indictment for receiving . And -does it not seem that these are parallel cases with the present ? Mr . Justice Colebidge—Could there be the offence of receiving , if the goods had not been stolen 1 Mr . Eble—No ; certainly it is material , as part of the description . Mr . Justice Coleeidge—Yes it is alleged without time or place . '

    Mr . Eele—But the offence—the subject of indictment—arose subsequently to the stealing ; the charge is the receiving . The stealing of the goods received guiltily is matter only of description , just as in an indictment ione night instance ) , for exporting machinery , the making of tbe machinery if not alleged , not provable , not travesable , yet it must bave been made to be exported . Mr . Justice Colebidge—But it is no offence to make machinery . Tbe charge is solely the exporting . Mr Erle . —And , my Lord , in the indictment for receiving , for the purposes of that indictment , it is not necessary to consider tbe goods having been stolen as any more important Mr . Justice Coleridge . —There is no distinct allegation of it independently of the charge— " sctens "

    Mr . Erle—That implies it ; and in an indictment , necessary implication amounts to express averment" recipient , tciehs , " sufficiently avers it The statute on that offence assumes the stealing to have existed , and then , on this prior state of facts , creates a new misdemeanour . If you receive things to which that description applies , knowing it to apply , you are guilty of tbe misdemeanour created : the criminal pleader may charge the effsnee , by averring that you took goods within that description knowing it Mr . Justice Coleridge . —Would argue that " stolen goods" is as much a merely descriptive phrase as " brown cloth ?"

    Mr . Erle . —Let me put the case of " French silk ;" that I think a fair analogy , importing French silks " knowing them ! to be French . " Tbe Learned Counsel then cited the case of " M'Daniel , " in 1 st Foster , 121 . That was an indictment for aiding and abetting ; the principal offence being in one county and the aiding and abetting in another , and tbe indictment was in that shape . There had been a conspiracy to incite somebody to rob one of the parties , for which tbe robber was to be apprehended by the others who would share thb reward for his apprehension among them . The robbery was in Kent ; the counselling , &c , in Westminster . The case is the more remarkable because it clearly exemplified that persons aiding and abetting need have no communication with the principal offender . And in fact it wob there held that no real robbery bad been perpetrated , tbe taking having been collusive and voluntary on tbe part of tbe person who allowed himself to bo robbed , for tbe purposes of the conspiracy .

    Mr . Justice Patxesos—Is there any case in which a man has been indicted as an " accessory before the fact , " the fact in question having never been committed ? Mr . Exlb ( observing that be did not think the state of the facts here ; involved that point ) said be had never met with such a case , which struck him as in its terms contradictory and impossible . He should , however , argue tbat in this case tbe indictment—could not be sustained as sufficiently charging and aiding and abetting a fotmre offence . Tbe Learned Counsel proceeded

    to argue that the statutes of feofails weald not help tbe total onris&ion of venne . They cured the imperfect statement—not the entire omission , of B material allegation . As to time , a less stringent rule was recognized by the statutes ( for an obvious reason ) than as to place . If a place at all were named as tbe scene of the acts alleged , they might have taken place in France , or any place not within this realm . Then , was the fault cured by tbe venue in tbe margin ? It was said that this might be taken as the imperfect statement of a venne .

    Mr . Justice Coleridge—You assume that tbe emission of the . venue to one material allegation is an omission as to the whole ! Because , there is a venue as to the latter part of the indictment Mr . Erle—I am not sure my argument would go to that length . Mr . JuBticetlpLEBiDGE—The indictment shows the offence to have been committed within the jurisdiction . Mr . ERLE—Not an offence . Mr . Justice Coleridge—At all events the acts alleged to bave been the offence ; they are alleged to have been committed within the jurisdiction of the Court

    Mr . Erle—But my objection is that there is not alleged to have been any offence , that the acts are not alleged adequately as forming an offence . Will tbe marginal venue ! aid the the defect ? " Lancashire to wit—the jurorB en their oaths present , Ac . " He would contend that the word In the margin applied only to the words immediately following , viz—" the jurora , " not to the offence subsequently alluded to ; and it was as though it ran , M the jurois for Lancashire present , " &o . The statutes of feofailB applied to civil not criminal proceedings . The margin cured defects in actions but not in indictments . Three authorities cited by the Aitorney- Genera ] to tbe contrary would not be found adequate to countervail the weight of authority in support of that proposition . The first one was in * ' Kail worth , 33 , " where the marginal venue was ' Oxford City , " and

    the indictment alleged an offence in Oxford . The Court said tbat they would intend "Oxford" to mean Oxford county in the body of tbe indictment ; and having intimated that the indictment was bad , they say "that if nothing had been said on the margin of' city , ' it might have been intended as a general word , and not have been aidaWe . " ThiSj it would be observed , was an extra judical dictum j the pmport of the case was that the indictment was bad for the imperfect venue in the body , not that it was good for the venue in the margin , the reporter merely adding that had it not been for the mistake in the body , the margin might bave cured the error ; and in another of the three cases cited , where the Court held the addition bad , there was merely an extrajndicial dic / um , that the venue in the margin related to the offence not to tbe addition .

    Mr . Justice P . atteson Baid , there was a case in 3 Cro . jac 167 , ( Leach ' s case . ) Mr . Erle—The argument was , that the omission of the county to the addition was fatal and extra-judicial . The Court Baid the margin referred to the offence , and not to the addition . All tbe Court requited to Bay was , that the margin did not refer to the party ' s addition . In the case of " Bntler" it was alleged that "Elizabeth Bntler , of Oxford , " was bad for the want of the " county afqresaid ; " there was a venue in the margin , and it was argued that the county in the margin should be referred to the place where the offence was committed , and not to the addition of the party . The cue was no doubt in point for bis Learned Friends ,

    bnt bis answer was , that it wai extra-judicial . It was merely an omission of " aforesaid , ' ? and therefore could not refer to the margin . He was not aware of any other authority cited by bis Learned Friends as Immediately helping tbem . Is the 2 nd Lord Raymond , 888 , " The Queen t . Rhodes , " which was an indictment for KiDomation of perjury ,- tbe information set out that " C . W . Rhodes , late of the county of Surrey , " &c . It stated . that Rhodes bad persuaded a man to swear to a falsehood , and it stated that the man was indicted at St . Clement Danes , in the county aforesaid , which would appear as if St . Clement Danes was in the county of Surrey . The ease was tried at Westminster , aud an objection was made tbat the Judge bad no right

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    to tiy tJie case at Westminster , because the causa of action was laii in Surrey . Lord C . J . Holt said there wa 3 a difference batween actions and indictments . If this bad : been an action , and the plaintiff had declared thus , and " Middlesex" bad been in the margin , it must have referred to that county ; and tbe reason is because ; " Middlesex" in the margin , stands thereto denote the county in which ;; the action is laid , and therefore , though a county be mentioned in the declaration foria particular purpose as for an addition of one

    of the parties for the purpose before the venue , yet the comitalu preeiicto should not relate to tbat , but to the county in the margin , which ; was put there for that pnrpose . But here there was no " Middlesex" in the margin . The county in the -margin states the place where the cause of action is alleged to have been , but iu an indictment the county in the margin is only pu ' . to denote where the indictment was found . In the same volume of Lord Raymond , 1304 , tbe exception was , that " Southampton" was in the margin . Lord DE . NMAN said that had been overruled .

    Mr . Erle said there was a distinction recognised between indictments and actions . Mr . Justice Coleridge said , in an indictment , if there was a county in the margin and county aforesaid in Ithe body , it was clear that would refer to the margin-Mr . Erle said , clearly so . The next case was that of " The King v . Burridge , " 3 P . Williams 496 . It was not laid that the fact of ailing and assisting Was done by force , therefore the aiding and assisting might have been done in another county , and the Court could not take notice that Ilchester was in the county of Somerset , In the 1 st Sounders , 3 G 8 , in a note it was said that it was usual iu practice to insert tbe name of

    tbe county in the caption instead of the county aforesaid , but the word " aforesaid" was sufficient . The name of the place , without the word " aforesaid , " was not sufficient ; but iu civil cases it was otherwise ; for It was held sufficient to name tho place only in the declaration , because the place is always considered to refer to the county in the margin . He trustee * that the authority to which he bad adverted would antiafy their Lordships that the three cases named by his friend the Attorney-General were extra-judicial dicta . In " Bale ' s Fleas of tbe Crown , 165 / ' it was said that the caption was no ; part of the indictment ; but tbe style , or preamble , or return made from an inferior te a superior . If tbe case of " the King v . Minter Hart" was tenable , tbe margin would not cure a defect in the indictment

    Mr . Justice Patteson observed that it was there said to be taken before verdict , and was tbe same thing as if taken upon demurrer . Mr . Erle said that unless there was a statutable provision , any objection that would be good upon special or general demurrer would be good in arrest of judgment . Lord Denman said that in Hart ' s case there were several indictments , and he was transported upon one of them ; therefore tbe history of the others was very immaterial , but be believed Mr . Bodkin was in those

    cases . Mr . Bodkin observed , that upon the success of the objections Hart was set at liberty , but was convicted upon another indictment . ' Mr . Justice Patteson said the judges direeted an acquittal , and treated the objection the same as if it had been brought before them on a demurrer . If the objection was demunable tbe statute did not cure it , because the statute only cured after judgment by default , as , after verdict , strictly speaking , the judge had no power to do this ; it could only be done by allowing the party to withdraw his ptea , and demur . Mr . Bodkin said , that in Hart ' s case it did not appear tbat the-Court had jurisdiction .

    Mr . Erle Baid the Court had applied the statute expressly to it . It was clear tbat the Learned Judges dealt with tbe case as thtir Lordships bad done in bolding an objection good in arrest of judgment when it was presented to them at the trial , and the Judge ' s mind was clear upon the paint . The prisoner was allowed tbe benefit of it at the time , although it was not tbe moment ' when , according to law , he was entitled to it Tbe opinion « f the Learned Judges in that case was decidedly in his favour that the margin would not help the prosecution . They could not apply the parish to the county in the margin without reference to it by the word " aforesaid ; " and if that could not bo done , the

    Court bad not jurisdiction . The balance of authorities , he contended , was strongly in his favour . The margin referredito the jurors who presented it , and not to the charge . > The cure given by the statute of the 7 th Geo . IV . did not apply to the present case . He submitted that tbe ; statute of the 6 th of Geo . IV ., enacting that tbe Jury might be taken from the body of the county and not Irom the hundred , did not advance his friends ' argument ; it was prior to thu 7 th of Geo . IV . In respect to the allegation of place the want of perfect or proper venue would not be fatal provided it appeared on the face of the indictment that the Court had jurisdiction .

    Mr . Justice Coleridge remarked , that the Solicitor-General bad said the Court had jurisdiction go long as the grand jury found the bill . Mr . Eexe said , teat was one of the points . With respect to the margin , it was a condition precedent for the application of thto statute , that it sbotld appear tbe Conrt bad jurisdiction over the offence , and the Solicitor General ( contended tbat that meant bat the nature of tbe offence to which the commission applied under which the judges were Bitting . Mr . Justice Colersdge—Supposing the grand jury of the county had found the bill ?

    Mr . Eklk submitted that did not appear on the face of the indictment , the grand jury were not part of the Court ; the words were , " where the Court should appear to have had jurisdiction over the offence . ' His friend imported into the indictment tbe finding of the grand jury , but the indictment must show an offence coming within the jurisdiction of tbe judges , under their commission . The commission related to offences committed within a certain place , and of a certain character . In Lancashire it must be f or oflteneea arising within the county of Lancaster . The jurisdiction of the judges over an offence was compounded of two qualities , the nature of the offence and where it took place . The particular commission under which the judge sat was for county A , and he having the commission in his breast was to say , " does this offence arise within the local Units over which my jurisdiction extends f" That was the way he answered bis learned

    friend . - The general commission of oyer and terrain er was not alone sufficient to show that the commission bad jurisdiction . The Commission was confined' to a given place , and it must appear in the indictment that the offence took place within the limit * of that place . It must appear on the face of the Indictment that the Court h&d jurisdiction . An imperfect allegation of place was sufficient if enough were alleged to give the judge cognizance of the offence . The finding of tbe Grand Jury did not in the smallest degree establish the locality of the offence . They might be mistaken in the conaty or parish where It occurred . Their Lordships bad put the case of the jurisdiction of that Court But it had unlimited jurisdiction . An indictment might be preferred in that Court with a venue in the margin , " England to wit . " He would not , bowfever , press that part of the argument on their Lordships , as he was not experienced in it .

    Mr . Justice Patteson—An information might be filed in this Court laying the venue anywhere ; bat an indictment could not lie in this Court without laying the venue in Middlesex . Mr . Erle would not press this point He only urged this against the argument of the Solicitor-Goneral , that the findjmg of the Grand Jury showed that tbe offence was within their limits . Enough ought to be alleged on the face of tbe indictment to show that the offence was within the jurisdiction . The fifth count was alleged to be bad unless the venue in the margin would cure the defect The only point for maintaining this count was ,, that the venue in the margin could be imported into the body of the indictment . He would not trouble [ their Lordships further . He would submit that the fifth count was clearly bad ; and he would also submit that the fourth count could not be supported .

    Mr . Dundas said , his Learned Friend had taken marly all the ground from under him , and be , therefore , would not trouble their Lordships at any great length . ; He would refer to a passage in Hawkins which had not been cited , taking up the argument of bis Learned Friend that the finding of tbe grand jury did not establish tbe locality . in tbe second book of Hawkins , c . 26 , 8 . 34 , " of indictment , witbin what place offences must arise" it was laid down that if it did not appear that the offence arose within tbe limits of the county from which the jury was returned , they had no jurisdiction over it Ha submitted to their Lordships on both counts , but clearly on the fifth count , that there was nothing in the body of the indictment laying tbe offencj witbin tbe jurisdiction of

    the grand jury , who had found a true bill . There was no reference whatsoever to the venue in the margin , neither : was there any mode whereby they could import that which was in the margin into the count , unless they said that a marginal venue was sufficient without more . In a note to " Collins v . Giridsmid , " 1 Bulstrode'a Reports , 205 , it was held by the whole Court , that an indictment for a nuisance , without an allegation of the county or place , was bad , and the party was discharged . In " Hammond's Case , " Cro . Elia ., 751 , which was error to reverse a judgment given upon an indictment , the indictment was held to be ill , because no county was named in tbe body of the indictment , although a county was named in tbe margin ef the record . In "The ; King v . Yarrington , " 2 Keeble ' s Reports , the indictment was quashed for not having a venue tin the body of it , although there was

    one in the margin . In " Shelly v . Wright , " 2 Comyn's Reports , p . 562 , it was held that a county in the margin ] would supply the want of it in the declaration ; but it mm stated in an indictment " the omission of the county in the body is not helped by naming tbe ceunty in the margin . " Since the statato of 7 George IV . the case of Mister Hart had occurred , and he had found another case , since that , referred to in the 3 rd volameiof Burns' Justios by Doyle and Williams , p . 383 where in an indictment for bigamy the venue was laid in Middlesex ; and it was stated that the first marriage took place in the county of -, the second in the county jrf———— ! and at the conclusion it stated 11 that the jurors further say that the said E . waB apprehended ! on the —— : — day of - — - —— , ' at leaving a blank for each place . After conviction the judges held unanimously that the indictment was bad , for it did not appear that a Middlesex Grand Jury had any jurisdiction .

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    Mr . Justic « Paxteson . — What is the name of the Anya ? j Mr . Dundas— "TheKing V . Frazer , "tried in 1833 . It is not yet reported . J , Mr . Justice Coleridge . —Silt there was good reason for that decision without supporting your position . The first marriage might be in one county , the second In another , and the apprehension in another , and you could not tell to [ which to refer the venue in the margin . \ Mr . Dundas—Where no county was named at all there was nothing to go to but the venue in the margin , and be cited the case fas an authority for his position . It certainly would seem that where no venue whateve * r was laid in tbe body of the count , that the marginal

    venue would not nufB ' pe . He would refer the court to the case of the " King v . Connop , ' * in 4 Adolphus end Ellis , p . 942 , which shewed that the Court looked to tbe venue in the bodi of the count as the substantial venue . It would seem that tbe marginal note was never called into life except by reference to it It was treated as a thing which might be there , and if reference were made to it then it started into life ; but until then it waa of no import He contended , therefore , that there was a necessity ) for a venue to be stated in the count of an indictment , and this objection applied to both counts of the present indictment , and there being no venue in either the whole offence had not been truly stated on the record , j behalf of three of the

    Mr . Baines appeared on defendants , and should certainly after the arguments of his learned friends have abstained from further troubling tbeir Lordships , were not this a question of great importance to jhis clients . He contended as . to the 5 th count that this was not a case of an improper or . imperfect venue , but a case of no venue at all ; and therefore it was not [ within the statute of 7 th and 8-h Gaorge IV ., and could not be cured by it . That statute applied enly to cases jwbere there was a want of a proper , or an imperfect ! venue , and not to cases where there was a total omission , It was by no means a sound argument tbat , as was urged by the Solicitor-General , if bis construction of the statutes were not adopted they would have no real meaning at all . Their Lordships were aware that in many cases It was found diffi-1

    cult , if not impossible , to say what the oject of the Legislature had been , or whether the terms they had employed were sufficient to carry it out . It was , however , by no means necessary to construe the statutes in the way proposed by ' the Solicitor-General , in order to avoid making them entirely a dead letter . The cases in the books showed that the statutes were designed to , and held to , cure defective or imperfect statements of venue , which would have been fatal in pleading on arrest of judgment but for the operation of the statute . Thus in 2 d Hawkins , } 85 . " it is unnecessary to aver a conclusion of law with time and place ; but if it be so , and it be done improperly , the indictment is bad . As if D be struck in county A , and die in connty B , and the indictment allege his murder to have been in the former , it will be jvicioug , for the act was completed in tbe latter . " That which was not of the essence

    of the ofibiice and essential to be proved , need not be stated with time and ' place , but if it were , it must be stated correctly . So in 2 Hale , p . 80 , tbe doctrine was laid down as it had been recognised in the conrt , in "Rexv . Wright , " 1 , F Adolphus and Ellis . The want Of " proper" venue wjas cured by the statutes . SiDce the passing of the 6 th George IV ., requiring as to criminal what tbe Act of Anne bad as to civil proceedings , tbat tbe jury should come from the body of the county , tbe special venue need not be laid where the facts were of a transitory nature , but the necessity

    waa not displaced of [ stating tbe venue for facts of a local nature , as in burglary and night poaching . A legitimate application of the statutes would be where an indictment merely averred tbat tbe prisoner broke and entered a certain bouse in the county of , ice , without giving further description ( which would bave been bad but for tbe statutes ); the reason being that the court would have jurisdiction to inquire into offences all through the county . These arguments asd authorities he hoped [ would be sufficient to disprove the Solicitor-General ' s construction of the statutes .

    Mr . Justice Patteson—The Solicitor-General remarked upon tbe words of the act He admitted tbat if the words Lad been " improper venue , " it might have been more difficult to apply them to the case of utter absence of venue . Bi it be said , tbe words " want of proper venue" implied as well the absence as tbe imperfection of a venue " , arguing that tbe want of any venue Was " the wantjof a proper venue . " Mr . Baines—Then why baTe inserted the word " proper ? " It is on the change of language which the Legislature adopted when they came to speak of venue that I rely . They evidently use language more qualified and restricted , as ] to curing defects in venue than in time . Their Lordships could not , the Learned Gentleman proceeded to argue , look at the " caption" 1 Saunders , 250 b . Faulkner's case . By the indictment itself it must appear that the Court had jurisdiction . Mr . Justice Coleuidoe . —You assume that the venue in the margin and the caption are tbe same .

    Mr . Baines—Not exactly , my Lord . I contend that your Lordships cannot look at the caption ; whereas , tbe Solicitor-General called it in aid He naid , ¦¦ it appeared from the caption and the margin . !' Now it must appear from the indictment alone ; and how could it appear from the indictment alone , unless it appeared from the allegations in the body of the indictment ? The margin was nothing for that propose . If there were references in the body to the marginal venue , as " to the county aforesaid , ' the two might be taken then certainly tlogetlier , otherwise tbe marginal venue was useless . The allegations of venue were important as fact » that went to make up the offence . It Was from these averments that tbe Court judged aa to its jurisdiction . So much the Learned Counsel said , as to the fifth count . ( Then as to the fourth count . In

    Stock's case , he contended that if it were good law , it would only be so from some circumstances distinguishing the case of receiving stolen goods from all others ) and making the aatliority sui generis ; for certainly la all other authorities it was laid down that averments of material and travel sable facts must be with , time and place . In 'j'East ' s Pleas of the Crown , " the report was meagre , and no persons we » e given for the authority . He thought tbe case might be explained in this way . When tbe venue was averred in an indictment for receiving stolen goods , it referred to the stealing ; but yet larceny was of a continuing nature , and was going oa in J every county through which tbe goods were carried till they reached the hands of the receiver . So that the [ venue would be alleged of every county through which they passed .

    Lord DfiNltAM . —I could easily pisfc cases in whieh that could not be so ; as , if the goods were sent by an innocent messenger , who could not be said to have been committing or continuing a larceny . Mr . Baine&—But tjhe-sending by that innocent agent would be a continuance of the larceny by the principal , the messengei being only tbe mesas employed by the principal , who would be indicted for the larceny in any county where the goods came . Mr . Justice Patteson—You eau hardly maintain that proposition . Suppose the thief delivered them to a person in some county without aay instructions at all , and that the receiver took them into another county and gave them to a fihird party who knew all the circumstances , and too ]; them to conceal them ; would there be any continuing larceny in tbe county were tbe last receiver took them ? It could not be alleged in an indictment against ttiis person that he received the goods from the thief , but that he received them , " knowing them to have been stolen . "

    Mr . Baines . —I think my proposition borne out by the authorities . Lord Denman . —A steals geods in Middlesex and then delivers them to B without any instructions . B takes them into Surrey and gives them to C for concealment ; C taking them with a knowledge of the cirenmstance , would be indicted for the guilty receiving in Surrey , but not A for tbe larceny ? Mr . Baines was still of opinion that his view was sustained by the case ' s . However , be continued , the case of Stock , if it could not be explained on that ground , was not , he 'contended , good law ; as it Was impossible , then to maintain , it against all the authorities which were opposed to it . Mr ., Justice Coleridge . —Mr . Stirkie , in his book , frames his precedents ] according to tbe authority of the case , and states it to be tbe constant practice . Lord Denman intimated ha had also understood the practice to be so . |

    Mr . Justice Coleridge . —Supposing all you say true , the venue must , neveTJthelegfcbe proved , if material I Mr . Baines—No doubt the point applies to pleading and evidence . j Mr . Justice Coleridge—But you seem to apply your explanatien to the one , and not to tbe other . Mr . Baines continued to contend , tbat the weight of authority was to the effect that every material fact must be stated as occurring in a particular villa iu the county ( for this he cited a cose in the 4 th of " Ma ale and Selwyn , " and thej book of Mr . Starkie on criminal pleading ) . There could be no question of the law on this point , —that all material facts must be averred with Certainty of time and { place , tbat the fact in question in tbe indictment befere the Court was material waa

    evident from the proof of it having occupied three days . Undoubtedly , then , the indictment Was bad for not even showing the fact to have occurred witbin the realm . The indictment excluded not the supposition that the facts occurred out of the kingdom . The Learned Cousel here cited an authority in Hale ' s Summary , page 203 ( cited in " Rex v . Burdett" ); regularly the Grand Jury can inquire into nothing but wbat arises within the body of the county . " What was there , he argued , to take this case out of the common-law rule ? It was not till 6 Geo . IV . that British subjects qonld be tried for murder out of the realm . By a statute of Hen . VIII . the power was [ first given to try offences committed out of this country . The direct interposition of

    the Legislature was then necessary to give the Grand Juries jurisdiction over offences not committed within the realm . There waa no statutable provision in tho present case ; therefore the indictment should have excluded the supposition of the acts having occurred out of this country . He apprehended the Grand Jury had no possible business to * meddle with tbia indictment , and it did not appear that ithe Grand Jury bad jurisdiction . ' He submitted that there was sufficient objection to the indictment for the want of venue , and that it was not cured by the statute , j Mr . Sergeant Muhphi would not address himself , in the first place , to tbe case of "Tbe King v . Stock . ' In looking over the foundation of indictments against receivers by statute , it was laid down in all tbe books

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    We have the highest authority to state , that if any of the Chelsea or Kilmainham pensioners con * nect themselves with the repeal movement , directly or indirectly , their names will instantly be struck otf ' . he list . —Belfast Chronicle . Wilful Murder . —Oq Friday , May the 19 ib , a lad named Isaac Kettleband , aged ten years , sod of William Kettleband , of Wysall , labourer , was missing . On the Tuesday bis body was found ina horsepond , on the farm of Mr . Henry Hebb , situate near to a barn aud a stable , at which the deceased and his father usually worked . An inquest was held on the body the same evening before Mr . G . Swann » coroner , and no evidence to the contvary being adduced , a verdict of " Accidentally drowned" was returned . On the same evening and during tbe next day , the village gossips , in talking the affair overt began to think it possible that foul play might have been used , as the father of the deceased was known to be a violent and passionate manand it was

    noto-, rious that he had always mo 3 t thamefully and brutally maltreated the boy . Mr . Browne , of Wyj neswold , surgeon , was sent for to examine the body , and he at once discovered that the neck was dislocated , and gave it as his most decided opinion thai it wa 9 broken before the body reached the water . The pond in which deceased was found is about 10 ^ yards by 4 , and 1 ^ or two yards deep in some parts ; it is , except at one corner , surrounded by a deal fence , about four feet high , and is so situate that the boy could not possibly have broken his neck in falling in accidentally . Tnese circumstances , connected with the anxiety the father exhibited to have the corpse interred before any surgical examination took place , excited such suspicions that the deceased had been unfairly " done to death , " that a second inquest waa deemed indispensable . Accordingly a notice was sent to the coroner , and Kettleband was taken into

    custody . Mr . Swann consequently commenced a most rigid inquiry on Thursday , the * 25 ih , which was at the close of the day adjourned until Monday last , the 29 th . Mr . Hebb , in whose employ the deceased and his father were , has three farms—one at each of the villages of Wygall , Key worth , and Stanton—and there is no-residence on the farm at WysaJl . The farm buildings are situate about a mile from the village , and stand the width of a very large field from the road ; they consist of a barn and stables at rjght angles of each other , and the pood spoken of is not more than twenty-five or thirty yards distant . On Thursday a Jury satut the Plough Inu . Wysali , before whom Mr . Swann commenced his inquiry , and a verdict was returned of " Wilful murder against some person or persons unknown . ' Tne prisoner was then discharged out of cuatody . —A

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    tbat the only case to < * P arty c ° ald be indicted , aa a receiver was that Of ti * T versonwho harboured the thief in stealing , or the iailM **? T } n case of murder . He would ask their Lordships v ? bf * uC T tneT conl <* con . ceive in a ease at common law , wberd * h > 7 ^ ai ^ a P 618 ** indicted for harbouring a thief isfeloiiyV CeirLo'dshipa would consider the indictment Buf&zight » 7 nich did not state either time or place when and where tt * l felony waa committed by A B ; but the person was hi * dieted for harbouring A B ? Would that be sufficient as a statement in the indictment ? He apprehended it would be utterly insufficient so to state it ; but with regard to all the rules of pleading , that indictment of receiver at common law should state time and plac 9 in order to give certainty and that the person put upon his trial

    should have notice of tbe wheieand the when as to tbe offence with which he stood charged- With regard to the case of "The King v . Stock , " it was a decision to which no greBt weight should be attached , and they must therefore look at the object the statute was intended to introduce . Formerly it was impossible that the accessory could be found guilty until the principal " was convicted . That had caused many annoyances , and it was necessary that some positive enactment should be made which should have for its object the defining of a new offence , and do away with the necessity < rfset . ting out upon the record the principal offence , as it would have been where the principal was indicted ; but the substantive offence must be stated , that he received the goods knowing them to have been stolen . "The

    King v . Stock" Btood as a single case , and gave no analogy to another case . It was material that any issuable fact should be stated . His Learned Friend had cited the case of " The King v . Holland , " to show that every material allegation was stated ¦ , and tbat was valuable from the observations of Lord Kenyon , in t * ie 5 th T . R , 6201 that was an indictment against rebels and all the material facts were stated to have occurred at Carlisle , although they were tried in Surrey ; and that was a peculiar case , where there was a dispensation of the statement of venue . The indictment set out tbe peculiar circumstances , and recited in the cap . tion the Act of Parliament which gave the authority . If they were to take the venue in the margin , by analogy it was plain the only venne there stated was Surrey

    and , therefore , if ever there was a case of dispensation of the statement of venae , that was ihe case , because the recital of the Act of Parliament gave notice of the circumstances under which the authority was given ; but Lord Ksnyon said , notwithstanding that , it was necessary te state every essential issuable fact with its proper venue . That was a recognition that , notwiihstanding the venue in the margin , that venue could not dispense with the proper allegations in the body of the indictment Was this an issuable fact ? He apprehended it clearly was so . If they looked at the nature of the plea of not guilty they would see it was a cumalative traverse of everything necessary to be proved to found the legal guilt of the party . Here there were two incidents which the traverse

    disputed—one a tnmultuously assembling ; one aiding and abetting . If there were no tumultuous assemblings there would be no aiding and abetting ; and there might be tumultuous assemblings and ne aiding and abetting , and the defendants would be not guilty It was not a mere inducement , it was tbe very gut of the case . In a ease of murder tbe indictment ought to state all the principal averments . If it wore an ordinary case of principal and accessory , there was no precedent which shewed tbat the introductory material averment of the principal ' s guilt waa net stated with the proper venue . If they chose not to consider this with tbe single intention that all

    parties were principals as misdemeanants , the venue ought to have been stated . The wording of this inducement was consistent with the parties being out of the realm ; there was no single word which pointed to the necessity that tbe parties should be otherwise than out of the realm . The matter was not to be left in doubt or uncertainty , the party ought to know upon looking at the indictment tbe offence with which he was charged . There was nothing to show that an offence had been committed within tbe jurisdiction of tbe Court If this had taken place in France , or out of the jurisdiction of tha Court , it was not an offence indictable in this country . Was there any thing to show this state of facts existed in this country ?

    Mr . Justice Williams asked if it was admitted , tbat if it . distinctly appeared to have been done in this country it was an offence t ( We did not catch the answer . ) Mr . Serjeant MtiRPHT said the Solicitor-General had said there was no venne to the fifth count , unless the aet of Parliament interposed and ended it . Now it was plain that the caption in an indictment was no part of the indictment itself . If it should appear by the indictment or information that tbe Court had jurisdiction , the statute would cure the defect- The fifth count independent of being bad on other gronnds , as not showing there ever bad been a continuanee of any act done , was bad , as not stating where any of those circumstances took place . Could it be therefore said , that the act of Parliament cured it ? This waa no improper

    or imperfect venne .- was no venue the wast : of a proper venue ? It could not be said that the want of venue was the same as an imperfect venue , nor eoald it be said that it was an imperfect venue . He , therefore , submitted to the Conrt , that upon the fifth eotrot , whatever question there might be on the fourth , there could be no answer to this objection , which was fatal , and the statute could not by possibility cure it There was a difference between the total omission of tijae and an absence of » proper statement of place . They mast consider tbat unless jurisdiction was shewn , the place could not be inferred . The Court might have jurisdiction , though there was an omission of the time ; but it could not have jurisdiction without some place being shown . Re had to contend that were tbe indictment was found had no reference to place ; but that the judge mutt have tbat fact brought to his knowledge .

    Mr . Bodkin , on the same side , had not believed that the law officers of the Crown would have endeavoured to sustain a count where no venue at all was stated . The course of argument taken by the Attorney-General had been repudiated by tbe Soiicitor-Seneral ; the former bad argued tbat the jurisdiction was referable to the character of the oSence , while the latter had given up the count except it was cured by the statute . The words of the statute were peculiar , and might drive the Court , as in many other instances , to convict the Legislature of an absurdity . It was not enongb that there was no venue , but something must appear to ' show that it was within the jurisdiction of tbe Court . If two counties were mentioned , the word " aforesaid "

    might have reference to either . There was an absence of venue in the fourth count . It was also so loosely worded , that it was difficult to understand what tbe precise offinee charged was . It was difficult to lay from it whether these persona were aiding and abetting at a distance-from where the offence was committed , or that they were personally present taking part in tne act Stotf b was- an aeccsoria ^ charge ? this was a substantial charge , and there was a material distinction between the two cases . In a case arising out ot " Tbe Queen r . Caspar and otheis , " the gold dust robbery , tbe indictment was held bad for want of particularity , in alleging that the prisoners incited another to commit an offence , without , on the lace of the indictment , naming the person or averrinr that he Was unknown .

    . Mr . AthertoN then proceeded to address tbe Conrt on the part of some of tbe other defendants , and went over a similar ground of argument , citing tbe case of Mellor against Walker , " 3 William ' s Sanndera , 5 b . and the notes thereto , to show the two counts of tbe indictment bad under the rules of criminal pleading , for not setting out a venue in the body of the indictment , where the venae was local and material , so tbat it conld not be known where the venire facias was to be awarded . The Court intimated that they would consider of their judgment .

    Untitled Article

    £ W ~ THE NORTHERN STAR . | . . _ _ " . _

• Citation
  • Northern Star (1837-1852), June 10, 1843, page 6, in the Nineteenth-Century Serials Edition (2008; 2018) ncse-os.kdl.kcl.ac.uk/periodicals/ns/issues/vm2-ncseproduct1216/page/6/