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Northern Star (1837-1852), 10th June 1843, Edition 3 of 4, Page 6, Untitled Article

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      COUHT OF QUEERS BENCH , Satchdat , JrsE 3 . THE -QTEE 5 V . O ' COJf ^ OB ASD QTHTvBS . Thai IiOsdships having intimated that they -wished to fcf-ai the counsel for the defendants on the question « I venue only , 31 =. Ebxe proceeded to address the Court He had to appear in support of tbe rule for arresting the jndgxaen « in this case j and , confining hiTnwilf entirely to the point tfcelr Lordships had suggested , namely , the defect In -wnne that appeared on the fourth and fifth counts , lie should submit that the case on behalf of the defendants ought to ancceed , and he "would pray their lordblips' attention particularly to the offence charged in the fourth count , before he snbmitted ihe grounds upon

      Trhich he relied fox the judgment of the Cuart htong in his faTonr . The fonrth connt in effect charged , that divers persons , on divers ilaysietween the 1 st of August and tteist of October , at dixers places , tnmultuoualy assembled together and by -riolenoe impeded labour , and thereby caused tetroi and alarm . That was ^ the offesce , if any . that was charged on the lace of this indictment , and-he begged their JLsrdshipa would bear in mind that the indictable oflknce charged waa , that divers persons at divers places tumnltuonsly assembled and by violence Impeded labour , and then it Trent on to charge ¦ what in a ease of felony -would be a chargeof being an accessory . The allegation wes , tHat ihe defendants at TUTunfftpriwr , in Xancashire , did aid ,. abet , it , the said persons to continue and persist in ,

      ihe said unlawful assemblies . It was , therefore , an xn-£ ietm ° n& whereupon two steps -were essentially neceszary to prove the corpus drfirfj alleged to be charged against the principal cnininalB , and to proTe that the defendants were accessories to that -crime , whatever that might be . As the connt was framed , he submitted that the want of alleging any piece for the commission "i the principal offence "was fatal to the count , as TmiT *** of objection In point of substance , "and also fatal on account of ihe rules of pleading . He would first address himself to that "which was in the nature of an -objection in point of substance . In ihe want ef alleging any places presented it appearing upon the record that any indictable offence at all was commited by the principal offenders , of comae the charge against

      the accessories -would fall to the ground ; unless the principals were guilty of an indictable offence , the accessories were accessory to thit -which was not "indictable , and , therefore , would cot be themselves indict * . able . The * Tgument ontids point lay in . a small compass , — -namely , that it was perfectly consistent with an thai was alleged , that the principal offenders might not have been indictable for the acts allegedi and he fax * it on Ihe ground that those acts might hare occurred in parts of the glebe out of the dominiona of her Majesty , which was consistent with the allegagation , has , that the sets charged might have taken place bejood file limits ol her realm , and if they had taken plsce there and would not be indictable , this point would be established .

      The concessions made by hia learned Friends appeared to him to go a long way to establish it . The Learned Attorney-General , who had opened this case , said the chaise agunsttheprindpal ofienderswaschit-flyjinteuded to spread over divers counties . The description went on , liiat a large portion of the realm -was in an unsettled state , sod that the acts complained of were going on in that portion of the realm , and Ms friend admitted that the inscription < fid apply , and was intended to apply witheut limitation , to divers counties , to every county in the realm , withouUimitation . In the course of the argument their Lordships had pressed T" » Learned friends to say why the principal « £ ence should be confined to the counties of England ? Would it not be * gn £ 3 ) y iadistabl © if committed in Scotland or Ireland ? Hia IrienQasM that if the tumultuous assemblies had

      taken place m Scotland or Ireland , or in any part of the realms of her Majesty , although cot within the jurisdiction of tw » Court , that would constitute an indictable offence for «« Hiw and abetting in this conntry ; Bed he might , therefore , state in approaching this branch ef the argument , his friend ' s principle would go tossy that if the offence occurred in any part of the Queens dominions ., in Scotland or Ireland , or -any of the colonies , a contest far labour between the blacks and the whiteB in Jamaica , an indictable offence would be constituted , and his learned friend had so stated it-S the description ol the principal oSesce was conceded to apply to any part of the dominions of the Queen , whether within this hemisphere or the other hemisphere be would ask-what there was to fix the acts of the

      djren persona who assembled at the direr * places—¦ what there was to show that those places siust be within the dominions of ihe Queen ? There was no deeenptloB given except that the « CTpmhHen occurred in divers places 5 and surtly he might cod tend with confidence that in ywrnfrtiii pJgadlngH it must appear upon the face of the indictment that all the essential facts that constituted guilt were there alleged , as had been suggested when tkis rule was moved . It was perfectly possible that there might have been in France a disposition againsTEcglish artisans beyond the power of the -Queen—it was perfectly possible that tumultuous assemblies mightiavetaken place , and that-the subjects x& Hhe Queen employed in foreign manufactories might have been impeded in their labour , and that terror had ieen occasioned to the subjects of the Queen . That Wai the full amount of the description of the © fiance ; and yet it was possible $ 0 follow it nj > , assigning the place out -of the Mnsdom , either in Pans t » Kew York ,

      that would be intelligible . In fijn ""» l proceedings there ought to be certainty , and he submitted that on this ground this indictment , which was of a perfectly ancmsloas description , . and was laid very wide for Siepurpose of srring great advantage to the prosecutors if they departed from precedent and brought forward an unusual charge in an TmnBn » 7 form , for the purposes he had mentioned , —if there was a defect in an essential allegation , he asked their lordships to give the defendants the bentSt of the known rules of the law and construe the indictment strictly ; and then , it did not appear that any offence had taken place within the jurisdiction of the Court Bat , passing irom thin point to the objections founded en the known rules of criminal pleading , and for tfcis branch of the argument , that the principal offenders were charged with an indictable offence , he submitted that this count was bad for want of alleging a Tenne to the principal offeree , that it was bad on that ground , and was cot eased by the statute of the 7 th George IY-, c 64 , sec 20 .

      Mi . Justice Cok&ribge would ask whether this did -cot rest on what the learned Counsel had said in the ¦ beginning , that if it had been a case of felony the charge amounted to that of an accessory before the fact , and that there being no felony committed the charge of accessory fell to the ground ? Supposing it were a case of smbstanUve misdemeanour ? ilr . Eble observed , that fee was cow coming to the ascend paintol his argument . ilr Justice CoIlEHIDGE wonld suppose the case of inciting a frenchman to murder a Frenchman in Pracce , would cot the inciting in this country be an indictable offence at common law ? Mr . Eble should state that inciting one Frenchman

      to ddrsnd another French subject was cot an indictable rfFence so far as he knew . Of course there might be facts snch as would have the effect of involving ihe two tounbdfcs is a war , which might varythe case ; but the inciting to defraud , according to his limited knowledge of the laws of this country , would cot be indictable . He wished to draw the attention of the Court to this point If this point had been an indictment for felony as the principal offence , and the dtleBdants were alkgtd to have been accessories , the indictment was framed in such a way as to make that proof necessary , which weald have been necessary had the charge been that of felony . The authorities which had been cited by the Solicitor-General , in misdemeanours all were principals ,-or they might be taken some as principals ,

      some as . Sir . Justice Coleridge would ssk if there might cot be a third case of substantive misdemeanour ? -ilr . Sr . l . Ti would admit that , and he was going to point attention to the cases of " The Sing t . Biggins , " and " The King -r . Stock , " between which and the case sow before the Court there was a substantial distinction . The present case required proof of a principal misdemeanour , and the defendants alleged that no principal misdemeanour had been shown . The charge was a eharre that there were tumultuous assemblies , and

      that the defendants aided and abetted the persons who took part in these tumultuous assemblies , to eonntetymrf- the said assemblies—soot that they incited them to assemble together , or commit any original misdemsaiK > ur , but the charge alleged the existence of a positive principal misdemeanour , and thai the defen--dantz aided , and abetted those parties to continue and assist in the said meetings . Sis friends had sought to -avoid this by shifting the ground , that they might be charged as principal misdemeanants in endeavouring to procure the commission of the offence .

      3 Jr . Justice Coxe&idge supposed the learned Counsel admitted thatwtuld be indictable ; but would it be an offence to commit that cut of the realm which would be a misdemeanour if committed in England ? Ur . Tjrt / r imagined it would . Mr . justice Coleridge—If it was to incite a person out of the realm it would net be an offence ? Hz , Ebte—To commit murder-out of the realm waB statutory , but for any other offence the judge would cot have jurisdiction . JIs was cot aware of any law Bat "Bonldmake it * misdemeanour to ecdeavsur to stir up the subjecte ^ f aforeign country to destroy the rights of property . There might be a country when there " » as no jrotecSon . Be had pressed upon' tfcelr LordsMps * attention the form of the indictment , thai divers personsiWeregafltyjaf an indietable misdemeanour , and Hoi the dfifendants aided ana abetted them . He had

      -Bafcmitted flrft it ^ ras not an indictable offenoi , and he ^ oulflJiQWsabai ^ ttfflS ev ^ i assuming it to be indictable , cerrerajelesi , for want of-fenue , the ^ bjection was Jktsl , and fljsi it -wmit * enrtd lythe statmU . To « oceatote th » © ffssce bsra « harfed , it was perfectly itoar jthat there mmxt ha-r * bwa an- »» l » wfta satas-rlnc sad an imp * di «| : of laboo by ^ k }« s « t . Thaw farts Brest be wtabliahei , it -was quite ewentixl to th * in dictment , because iiaiiiaTfe was , that the defendants fcad aided and abetted the persona , to oontinae and asjas >^ J ^ , aia ! efolrC % e ^ fBan » 'w » an essential ict , aaoTfaftbi-Wanttfa ^ plaoebebag stated 3 u aeallegar Con on the facfrof the indictment , the count was bad acoording to Hie rules of pleading . He would trouble aa ^ onrtwiaiiiBTraafliorlBeB , toahow ttiatfime and place were material facto , and must be stated on the indictment Comyx ' s Digest , " Indictment , '" sec . 2 ., showed , that you must cot only 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 ilf . apud B . insullum fecit el aim gladio feknice percussit , without saying ad tune el ibidem percussit , is bad . " So the reference ought to f be to a time or place certain ; as if it says , quod percussit apud A in comitaiu prcedido , where two counties are mentioned before , though one was in the addition only , " unless they alleged a place for & material fact , the indictment was bad . " In Hawkins , bo * k 2 , c . 25 , a . 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 have been within the jurisdiction ef the Court in which the indictment was taken , and most be so alleged as to be free from all repugnance vai inconsistency . This matter also was mentioned in 5 T- R-, 620 , the case of "The King t . Holland , " who was indicted for malversations in office during the time be was one of the Council at Madras . Mrl Justice Buller there said , «• that every mateml fact which la Issuable and triable must be laid with time and place ; it most be laid with a -venae , for the sake of trial ; and wherever a venue is necessary , time must also be mentioned . " This case only set up the general proposition for which be was contending . i

      Mr . Justice Colkkidge asked if it most be laid in some place in England , to wit , at London ? Mr . Eblb said , according to the rules of pleading , it ought to have been laid in that way , and in many other cases It was recommended that the indictment should state the matter suggested by Mr . Justice Coleridge , to wit , at London : but all he was arguing' was , that they must assign a place for the essential fact . ilr . Justice Coleridge observed , that the learned Counsel must go back then to the principle of the old cases , where the place wonld have been the real place , or the place in the county where the grand jur y sat Mr . Eble would allude to the case of the rebels who were tiled in Surrey . The indictment said , " To wit . at Croydon . " They were fonnd guilty of rebellion at Carlisle , although the indictment was "to wit , at Croydon . " '¦ ¦

      Mr . Justice Coleridge referred to a cast in 4 Carr , and Payne , 394 , where ilr . Justice Bayley had -directed to words of a Tentte , to be inserted at St . Marylebone ; " ; Mr . Ehle said , they might name a place within the jurisdiction , as in the Court of Admiralty and the Central Criminal Court . Mr . Justice Coleeidge—That must be according to the fact within the jurisdiction . 1 Mr . Eble 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 the place . He snbmitted that the point alluded to by Mr . Jnstice Coleridge of alleging "the real place" and then adding " to wit" stood on no good foundation , and ,

      therefore , it was now no longer necessary . The indict * ment was net vitiated by it . He would advert to the case of " The King v . Haynes , " in 4 Maule and Selwyn , 214 , which was an indictment against a miller for receiving corn to be ground , and returning bad or mixed meal ; and he brought the case before their Lordships because it was there held , upon « rror , to Teverse a judgment after Haynes had been convicted , -that the indictment was ill , if it did not show a certain place where tbe defendant received the barley to grind , the indictns 6 ntalleging "the jniors . && , present ! thatF . Haynes , late of the parish of Brasted , in the county of Kent , miller , on the 5 th of March , in the 54 th Geo . 111 ., and long before , and continually thence until the day of taking the inquisitioB , 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 parish aforesaid , for the purpose of grinding wheat and other corn therein ; but the indictment did cot allege that ha received the core in the county of Kent to be ground ; and lord Ellenborougb . said , " Then , as to the want of a venue where either of the parcels of barley was received , I have been endeavouring to Bee if it might not be dispensed with , but upon looking to the indictment , I find that the defendant received the barley fox the purpose of being ground at the mill , and that the purpose is a fact constantly referred to in all the snbseqnent zllegationa ; for they all relate to the barley so 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 dis }> ensed with . " He would put that as an authority , where the objection was taken after verdict , and In a case where it almost appeared to be implied that the miller would receive the com at the mill . But it wa possible that Haynes might have received the com at another plaeo , and for want of alleging where it was received the indictment was held bad . In the case quoted it was cot averring a material fact But the present offence , as , set out in the fourth count , was alleged without any allegation of place . Upon that bread-general principle the indictment would be bad , for a material fact was alleged without any place . This objection bad been attempted to be cured is various ways : and it was contended that this fault was

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

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

      Mr . Jnstiee Pjittesos said , in construing the late statute of amendment , the 7 th and 8 th of George IT ., they must be guided by the analogy of construction put npon the ether statutes of feofails and amendments . Mi . Eble continued . —Anotier argument much pressed on their Lordships ' attention , the calling the principal offence an " unlawful assembly , " was : cot a material fact but mere matter of inducement . ' The cases of " The King against Fuller ? and " Tfie King against Stotf' had been quoted , but he submitted that these cases were perfectly distinguishable from the present The indictment charged the procuring and " encouraging" others to unlawfully assembling ; but no act cf Parliament had made this an effenco . 1 In "The King against Fuller" the substance of tke charge was that

      the defendant Fuller , contrary to the 37 th George III ., c- 70 , advisedly « ndevoured to sednce persons serving in his Majesty ' s forces by sea and land from their duty and allegiance , and by 1 Mb statute all persons convicted of thiB conduct were to be adjudged fuOty of felony , aud suffer death as felons without benefit cf clergy . It was urged in that case that the gist of the statute was in the word " seduce /* and that therefore the means onght to beset forth . The answer was , that the " endeavour to seduce" was but a conclusion x > l fact , and that the fact was fully expressed by the . mere force of the word •¦ endeavoured , " < fca , without specifying the means employed . This was an indictable misdemeanour , created by act of Parliament The charge of •" aiding and

      abetting" was a charge the technical meaning of which was known to tke criminal Jaw , and -was understood technically as being accessory before or after the fact The case of " The King u . Higgins , " in 2 East's Reports , page 4 , was cot an offence created by acj of Parliament , and in that ease it was very much discusaed whether the " soliciting" a person to « oisa * an offence , without showing that the offence was committed , 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 ba not charged in tke indictment that the servant stole the goods , nor that any other act was done except the soliciting and isdting , 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 abfct" without any communication between the 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 house , was desirous that the offence should be completed , and who diverted the attention of the officer , that party would be an " aider and ^ abettcr" in the felony , without there being any communication between the parties . According to the description of the facts , many of these defendants might have had no earthly communication with any of thB principal defendants . Then , wonld it cot be putting a most strange construction on this indictment to say that the defendants were charged with " soliciting - to commit an offence , when the defendants might merely have " aided and abetted ? " " >

      Mr . Justice Pittxson—There are other words besides " aiding andabstting" in the count , Mr . Erie ; there an ** assisting , comforting , supporting , and encouraging . " Support shows support in doing something that is actually being done . t Mr . Ebijs believed there were other words . In Hie understanding of lawyers this waa a charge of being accessory before the fact . If they snppj » ed a rebellion , and persons -were to send dowc urmstottie rebels , b » submitted that that woold be siding sad abetting , comforting , assisting , « pparHng , sad eBcouraginf tbe Mbels , sad yttit might ba aa aet done withont a ainile word

      of oam « nk » tioobetweea tttaparttw to bri » g « wiHua the cue of *? Tb * King t . Higgimi . " H « « 0 Dfidefitly rtlled that there was nothing in the count from which fiie defendants could -understand that they were charged with iaving " solldted ^ any person to commit anoBence . In the case of "The King r . Burdett , *' » portedin 4 BarnewaU aDdAIdersoni 458 , the point much discussed by the Court was whether the defendant would be gnilty of anindlctable offence foi writing a libel with intent to publish it in the bounty where it was written , if afterwards it were published in another county j and tbere Holroyd , J ., held { that writing a

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      libel with intent to publib . ^ it , shewing afterwardB that it was published , was an oh" ^ nce p er se , and theu said , " If the defendant is charged with writing and with publishing a libel , and he wrote it in Leicestershire and published it in Middlesex , an offence 1 b committed in either place / and iherefore It may be well tried in either county . " This case did not . appear to him to further tbe argument of bis Learned Friend . He wonld refer to the case of " The King v . Scott , " in 2 East Pleas of the Crown , page 780 , where it was held that indictment againrt 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 seder the statute of the S h . of Anne ,

      c 31 , s . 6 . which made a . substantial misdemeanour to receive stolen goods , knowing them to be stolen . Section 5 enacted 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 the 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 waa received by the defendant , without inquiry and for small -value , that would begopdeyidencetogpto the jury that tbe defendant had received the goods knowing them to be stojen , without any evidence whatever being given of the goods being stolen goods .

      Mr , Justice Colehtdge—You must state them to be goods belonging to somebody . Mi . Ebxe would submit , that after this case of "The King v . Stott , " it would be sufficient to turn to the statute of Anne , and say the defendant received certain BtolengoodB knowing them to be stolen . Mr . Justice Coleeidge . —The averment that the goods had been stolen must be proved , as it Ib a material fact It is no matter on this principle whether the fact be proved in the ordinary way , by evidence or by admission . : Mr . Erle . —In point of pleading , you need not allege the stealing , but that tbe goods were " stolen goods . " Lord Desman—Ton must prove that they were stolen goods .

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

      lord Denmatj—The " state of mind , " and endeavouring , would of themselves be , in certain cases , no offence . Thus , suppose the case of there having been no real offence , or of tbe trial coming on before a court ef co jurisdiction—the keeping away a witness mi # ht be co 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 the stealing , or an indictment for receiving . An& does it not Beem that theBe are parallel cases with the present ? Mr . Justice Coleridge—Could there be the offence of receiving , if the goods had not been stolen ? Mr . Erle—No , certainly it is material , as part of the description . Mr . Justice Coleridge—Tes it is alleged without time or place .

      Mr . Erle—But the offence—the subject of indictment—arose subsequently to the stealing ; tbe charge is the receiving . The stealing of tbe goods received guiltily 1 b matter only of description , just as in an indictment ( one might instance ) , for exporting machinery , the making of the machinery ii not alleged , not provable , not travesable , yet it must have been made to be exported . Mr . Justi . ce Colbridge— But it is no offence to make machinery . The charge is solely the exporting . Mr . Erle , —And , my lord , in the indictment for receiving , fair the purposes of that indictment , it is not necessary to consider the goods having been stolen as any more important Mr . Justice Coleridge . —There is no distinct allegation of it independently of tbe charge— " sciens' '

      Mr . Erle . —That implies It ; and in an indictment , necessary implication amounts to express averment" recipiera , \ tciens" 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 yon receive things to which that description applies , knowing it to apply , you are guilty of the misdemeanour created : the criminal pleader may charge- ; the tffance , by averring that you took goods within that description knowing it Mr . Justice Coleridge . —Would argue that" Btolen 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 " knowingthem to be French . " The 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 the indictment was in that shape . There bad been a conspiracy to Incite somebody to rob one of the parties , for which the 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 , dec , 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 was there held that no real robbery had been perpetrated , the taking having been collusive and voluntary on the part of the person who allowed himself to be robbed , for the purposes of the conspiracy .

      Mr . Justice Patteson—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 . Eels ( observing that be did not think tbe state of the facts here involved that point ) said be bad never met with such a case , which struck him as in its terms contradictery and impossible . He should , however , argue tbat in this case tbe indictment—could not be sustained as sufficiently charging and aiding and

      abetting s future offence . The Learned Counsel proceeded to argue that the statutes of feofails would not help tbe total omission of venue . They cured the imperfect statement—not the entire omission , of a 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 the 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 the venue in tbe margin 1 It was said that this might be taken as the Imperfect statement of

      ft venue . ( Mr . Justice Colekidge—Ton assume that the emission of the venue to one material allegation is an omission - as to tbe whole ! Because , there is a venue as to the latter part of the indictment Mr . Erle—I am cot sure my argument would go to that length . Mr . Justice COLERIDGE—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 have 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 offunce , that the acts are not alleged adequately as forming an offence . Will the marginal venue aid the the defect ? " Lancashire to wit—the jurors en their oaths present , Ac . " He would contend that the word in the margin applied only to the words immediately following , viz—" the jurors , " not to the offence subsequently alluded to ; and it was as though it Tan , " the jniors for Lancashire present , * ' &c , The statutes of feofails applied to civil not criminal proceedings . The margin cured defects in actions but not in indictments . Three authorities cited by tbe Attorney-General to the contrary would not be found adequate to countervail tbe weight of authority in support of that proposition . The first one waB in " Kdlworth , 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 " tbat if nothing had been said on the margin of city , ' it might have been intended as a general word , and not have been aidable . " This , it would be observed , was an extra judical didurn ; the purport 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 have cured the error ; and in another of the three cases cited , where tbe Court held the addition bad , there was merely an extrajudicial dictum , that the venue in the margin related to the offence cot to the addition .

      Mr . Justice Patteson said , there was a case la 3 Cro . jac 167 , ( Leach"acase . ) Mr . Erle—The argument was , that tbe omission of the county to the addition was fatal and extra-judicial . The Court said the margin referred to the offence , and not to the addition . All the Court required to say was , that the margin did cot reftr to the party's addition . In the case of " Butler" it was alleged that "Elizabeth Butler , of ' Oxford , " was bad for the want of the " county aforesaid ; " there was a venae in the margin , andit was argued that the county in the margin should be referred to the place where the offence was oonunitted , and not to the addition of the party . The ease was no i doubt in point for bis Learned Friends ,

      but his answer was , that it waa extra-judiciaL It was merely an omission of " aforesaid , " and thereforecould not refer to the margin . He was not aware of any other authority cited by bis Learned Friends as immediately helping them . In the 2 nd Lord Raymond , 888 , " The Queen v . Rhodes , " which was an indictment for subornation of perjury ; the information set out that" C . W . ' Rhodes , late of the county of Surrey , " < bc It stated that Rhodes had persuaded a man to swear to a falsehood , and it stated that the man was indicted at Statement Danes , in the county aforesaid , which would appear as if St . Clement Danes was in the county of Surrey , The ease waa tried at Westminster , and an objection was made that tbe Judge had no right

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

      of the parties for the purpose before the venue , yet the comitaiu pradicto should not relate to that , but to the county in the margin , which was put there for that purpose . But here there was no " Middlesex" in the margin . The county in [ tke margin states the pl ace where the cause of action is alleged to have been , but in an indictment the county in the margin is only put to denote where the indictment was found . In the same volume * ef Lord Raymond , 1304 , the exception was , that " Southampton' ? ' was in the margin . Lord Den man said that had been overruled .

      Mr . Erle said there waa 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 the 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 466 . It was not . laid tbat 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 conld not } take notice that I { cheater was in tbe county of Somerset , in the 1 st Sounders , 368 , in a note it was said that it was usual in practice to insert the name of

      the ) county in the caption instead of the county aforesaid , but the word " aforesaid" was sufficient . The name of tbe place , without the word " aforesaid , " waa ' not sufficient ; but in civil cases it was otherwise ; for it was held sufficient to name tbe place only in the declaration , because the place is always considered to refer to the county in the margin . He trusted that the authority to which he had adverted would satisfy their Lordships that the three casea named by bis friend the Attorney-General were extra-judicial dicta . In " Hale ' s Pleas of tbe Crown , 165 , '' it was said that the caption was no part of the indictment ; but the style , or preamble , or return made from an inferior t » a superior If the case of " tbe King v . Minter Hart" was tenable , the 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 the eanie thing as if taken upon demurrer . Mr . Erle said that nnless there was a statutable provision , any objection that would be good upon special or general demurrer would be good in arrest of judgment . Lord Den man said that in Hart ' s case there were several indictments , and he was transported upon one of them ; therefore the history of the others was very immaterial , but he believed Mr . Bodkin waB in those

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

      Mr . Erle said the Court had applied tbe statute expreasly to it . It was dear that tbe Learned Judges dealt with the case as thtir Lordships had done in holding 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 Tbe prisoner was allowed theibeneflt of it at tbe time , although it was not the moment when , according to law , he was entitled to it The opinion ef the Learned Judges in tbat case was decidedly in bis 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 wor | d " aforesaid ; " and if that could not bs done , tbe Court had not jurisdiction . The balance of authorities ,

      he contended , was strongly in his favour . The margin referred to the jurors who presented it , and not to tbe charge . The cure given by the statute of the 7 th Geo . IV . [ did not apply to tbe present case . He submitted that tbe statute of the gth of Geo . IV ., enacting that the Jury might be taken from the body of the county andj not from the hundred , did not advance his friends ' argument ; it was prior to the 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 Coleridoe remarked , that thenBolicitor-General had said the Court bad jurisdiction so long as the ' grand jury found the bill .

      Mr . Erle said , that was one of the points . With respect to the margin , it was a condition precedent for the application of this statute , that it should appear the Court had jurisdiction over the offence , and the Solicitor General contended that that meant but the nature of thej offence to which the commission applied under which the judges were sitting . Mr . Justice Coleridge—Supposing the grand jury of the county had found the bill ? Mr . Erle submitted that did not appear on the face of the indictment , the grand jury were not part of tbe Court ; the words were , " where the Court should appear to have had jurisdiction over the offence . " His friend imported into the indictment the finding of tbe grand jury , but the indictment must show an offence

      Coming within the jurisdiction of the judges , under their commission . Tbe commission related to offences committed within a certain place , and of a certain character . In Lancashire it must be Cor offences 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 aris * within tbe local limits over which my jurisdiction extends ? " That was the way he answered his learned friend . The general commission ot oyer and terminer was not alone sufficient to show that the commission had jurisdiction . The Commission was

      confined to a given place , and it mast appear in the [ indictment that the offence took place within the > limits of that place ; It must appear on the face of the indictment thit the Court had 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 county 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 fin the margin , " England to Wit" He would not , however , press tbat 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 ; but an indictment could not lie in this Court without laving the venne in Middlesex . Mr . Erle would not press this point He only urged this againat tbe argument of tbe Solicitor-General , that tbe finding 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 . Tbe only point for maintaining this count was , that tbe venue in the margin could be imported into tbe 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 . Dun das said , hia Learned Friend bad taken nearly all the ground irom under him , and be , therefore , would not trouble their Lordships at any great length . He would refer to a passage in Hawkins which hadt not been cited , taking up the argument of bia Learned Friend that the finding of the grand jury did not j establish tbe locality- In the second book of Hawkins , c . 25 , s . 34 , " of indictment , within what place offences must arise"' it was laid down that if it did I not appear that the offence arose within the limits of the county from which the jury was returned , they ! had no jurisdiction over it . He 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 offenco within the jurisdiction of

      tbe 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 waa in the margin into the count , unless they said that a marginal venue was sufficient without more . In a note to " Collins v . Goldamid , " 1 Bulstrode ' a Reports , 205 , it was held by the whole Court , tbat 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 . EJiz ., 751 , vtbich was error to reverse a judgment given upon an indictment , the indictment was held to be ill , because no county was earned in the body of tbe indictment , although a county was : named in tbe murgin » f the record . In " The King v . f arringtpn , " 2 Keeble ' s Reports , the . indictment was quashed for not having a venue in the body of it , although there was

      one ] in the margin . In "Shelly v . Wright , " 2 Comyn ' s Reports , p . 662 , it was held that a county in the margin would supply the want of it in the declaration ; outfit wsi stated in an indictment " the omission of the county in the body is not helped by naming the county in the margin . " Since the stetitta of 7 George IVj . ihe case of Miater Hatt had occurred , and he had found another case , « 1 dc « that , referred to In the Srd volume of Burnt' Justice by Dojle and Williams , p . 383 where , in an indictment for bigamy the tenne was laid in Middlesex ; and it was stated that the first marriage took place in the county of j *—< , the second in the county of ———^ ; and at the conclusion it stated " that the jurors further say that the said E . was 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 tbat a Middlesex Grand Jury had any jurisdiction . ;

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      Mr . Juatico PaIttebon . — What is the name of the Mr . DUNDAS— I The King v . Frazsr , " tried In 1833 . It is not yet reported . ' Mr . Justice Coleridge . —But there was good reason for that decision without supporting your position . The first marriage might be hr 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 4-Where no county was named at all there was nothing to go to but the venue in the margin , and he cited the case as an authority for his position . It certainly would aeem that where no venue whatever

      was laid in the body of the count , that the marginal venae wonld not puffice . He would refer the court to the case of the " King v . Connop , " in 4 Adolphus wd Ellis , p . 942 , which shewed that the Court looked to tbe venae in the body of the count as the substantial venue . It woald seem that the 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 was of no Import He contended , therefore , that there was a necessity for a venue to be stated in tbe count of an indTctm « nt , and this objection applied to both counts of the present indictment , and there-being no venue in either the whole offence bad not been truly stated on the record .

      Mr . BAINES appeared on behalf of three of the defendants , and should certainly after the arguments of his learned friends have abstained from further troubling their Lordships , were not thiB a question of great importance to hia clients . He contended as to tbe 5 th count that this was not a case of an improper or imperfect venae , bat a ease of no venue at all ; and therefore it was { not within the statute of 7 th and 8 th George IV ., and could not be cured by it That statute applied enly to dises where there was a want of a proper , or an imperfect venue , and net to cases where there was a total omission . It was by no means a sound argument that , as was urged by the Solicitor-General , if his construction of the statutes were not adopted

      they would have no real meaning at all . Their Lordships were aware tbat in many cases it was found difficult , if not impossible , to say what the object 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 tbe statutes in the way proposed by the Solicitor-General , in order to avoid making them entirely a dead letter . The casea in tbe books showed that the statutes were designed to , and held to , eure 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 ; bat if it be so , and it be done improperly , the indictment is bad . - As if D be struck in county A , and die in county B , and the indictment Jallege his murder to have been in the former , it will be vicious , for the act was completed in the latter . " That which was not of the essence

      of the offence and essential to be proved , need not be stated with time and place , but if it were , it must be stated correctly , j So in 2 Hale , p . 80 , tbe doctrine was laid down as it h&A been recognised in the court in " Rex v . Wright , ! ' - Adolphus and Ellis . The want of " proper" venno was cured by the statutes . Since the passing of the 6 th George IV ., requiring as to criminal what the Act of Anne had as to civil proceedings , that the jury should come from tbe body of the count )' , the special venue need not be laid where the facts were of a transitory nature , but tbe necessity was not displaced of stating the venue for facts of a local nature , as ta burglary and night poaching . A legitimate application of the statutes woald be where

      an indictment merely averred that the prisoner broke and entered a certain house in the county of -- —*— , fee ., without giving further description ( which would have been bad but for the statutes ) . ; the reason being that the court would have jurisdiction to inquire into offences all through the county . These arguments and authorities he hoped Would be sufficient to disprova the Solicitor General's construction of the statutes . Mr . Justiee pUtteson—The Solicitor-General remarked upon the ( words of the act He admitted that if the words Lad been " improper venue , " itjnight have been more difficult to apply them to the case of utter absence of venue . | But he said , the words " want of proper venue" implied as well the absence as tbe

      imperfection of a venue , arguing tbat the want of any perfection of a venue , arguing tbat the want of any venue was " the want of a proper venue . " Mr . Baines— -Then why have inserted tbe word " proper ? " It ia 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 caring defects in venue than in time . Their Lordships could not , the Learned Gentleman proceeded ] to argue , look at the " caption" 1 Saunders , 250 b . j Faulkner ' s case . By the indictment itself it must appear that the Court had jurisdiction . Mr . Justice Coceridgk . —You assume tbat the venae in tbe margin and the caption are the same . Mr . Baines . —( 'Not exactly , my Lord . I contend tbat your Lordships cannot look at the enptiou ;

      whereas , the Solicitor-General called it in aid He said , " it appeared from tbe caption and tbe margin . " Now it must appear from the indictment alone ; and bow could it appear from the indictment alone , nnless it appeared from ihe allegations in the body of the indictment ? The margin was nothing tot tbat purpose . If there were references in the body to the marginal venue , as " to thejeounty aforesaid , " the two might be taken then certainly together , otherwise tbe marginal venue was nseJesa . j The allegations of venae were important as facts that went to make up the offence . It was from these averments that tbe Court judged as to its jurisdiction . So much the Learned Counsel said , as to the fifth count . Then as to the fourth count . In Stock's cose , he contended that if it were good law , it woald only be so [ from some circumstances distinguishing the case of receiving stolen goods from all others , ^^ - - ^ j _ , ___ — ^__ — — _ —_ _ _ _ .. — , _ —

      and making the ( authority sui generis ; for certainly in all other authorities it was laid down that averments of material ) and tnversable facts must be with time and place . In " East ' s Pleas of the Crown , " the report was meagre , and no persons were given for the authority . He thought the case might be explained in this way . When the venae was averred in an indictment for receiving stolen goods , it referred to the stealing ; bat yet larceny was of a continuing nature , and was going on , in every county through which the goods were carried till they reached the hands or the receiver . So that [ the venae would be alleged of every county through which they passed . Lord Denman . -J-I could easily put cases in which that could not be bo ; as , if the goods were sent by an innocent messenger , who could not be said to have been committing or continuing a larceny .

      Mr . Baines—But the sending by that innocent " agent would be a continuance of tbe larceny by the principal , the messenger being only the means employed by tbe principal , who would be indicted for the larceny in any county where xbe goods came . Mr . Justice Pajtteson —You can hardly maintain that proposition , j Suppose the thief delivered them to a person in some county without any instructions at all , and that the receiver took them into another county and gave them to a third patty who knew all the

      drcumBtances , and took them to conceal them ; would there be any continuing larceny in the county were the last receiver took them ? It could not be alleged in an indictment against this person that he received tbe goods from the { thief , bat that he received them , " knowing them to have been stolen . " Mr . Baines . —A think my proposition borne out by the authorities . Lord Denman . J-A steals goods 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 circumstance , would be indicted for the guilty receiving in Surrey , but not A for the larceny f

      Mr . Baines was still of opinion that his view was sustained by the cases . However , he continued , the case of Stock , if jit 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 CoiIeridge . —Mr . Starkie , in his book , frames bis precedents according to tbe authority of the case , and states it to be tbe constant practice . Lord Den man Intimated he had also understood the practice to be so . j Mr . Justice Coleridge . —Supposing all you say true , the venue mast , nevertheless , be proved , if material ? Mr . Baines—No doubt the point applies to pleading and evidence . 1 Mr . Justice Coleridge—But you seem to apply your explanation to the one , and not to the other . ¦

      Mr . Baines continued to contend , that the weight of authority was to the effeet tbat every material fact mast be stated as occurring in a particular villa iu the , county ( for this he cited a case in the 4 th of "Maule and Selwyn , " and ihe 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 . That the fact in question in the indictment j befere the Court was material was evident from thej proof of it having occupied three days . Undoubtedly , then , the Indictment was bad for not even showing [ the fact to have occurred within the realm . The indictment excluded not the supposition that the facts occurred out of the kingdom . The Learned Coasel here cited an authority in Hale ' s Summary , page 203 ( cited in "Rexo . Burdett "); "

      regularly the Grand Jury can inquire into nothing bat what arises within the fepdy of the county . " What was there , he argued , to take this case ont of the common-law rule ? It was not till 6 Geo . IV . that British subjects could be tried for murder out of the realm . By a statute of Hen . VIII . the power waa first given to try offences committed ont 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 jwas no statutable provision in the present ease ; therefore Ihe Indictment should have excluded the supposition of the acU having occurred Out of this country . He apprehended the Grand Jory had no possible business to meddle with this indictment , and it did not appear that the Grand Jury had jurisdiction . ' He submitted that ] there was sufficient objection to the Indictment for the pant of venue , and that it was not cured by the statute .

      Mr . Sergeant Murphy wonld not address himself , in the first place , to the case of "The King v . Stock . ' In looking over the foundation of indictments against receivers by statute , it was laid down in ail the books

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      that the only caHe in which a party could be indicted as a receiver was that of the person who harboured th » thief in stealing , or the murderer in case of mnrd » He would ask their Lordships whether they could «> £ ceive in a ease at common law * where they had a De » J » iudicted for harbouring a thief is felony , their 3 ships would consider the indictment sufficient WhSl did not state either time or place when and where th » felony wa « committed ; by-AB- ; .. battha person was to ! dieted for harbonrinff A . B ? Wonld that be soffldeiia * a statement in theindictment ? He apprehended it wonM

      be utterly insufficient so to state it ; - 'batwith regard to all the rules of pleadibg , that indictment of receiver » t common law should state time and place m order to give certainty , and that the person put upon bis trial should have notice of the wheie and the when as to tha offence with which he stood charged . WUhrecard > the case of "The King v . Stock , " It was a / decision £ which no great weight should beattached , and ' th ' s * must therefore look at the object the statute was in . tended to introduce . Formerly it ^ as impossible thai tbe accessory could be found gnilty until the prindbai was convicted . Tbat had caused many annoyances , and it was necessary that some positive enactment ahotSd be made which should have for its object the defining

      of a new offence , and do away wltb the necessity afget ting oat upon the record the principal offence as ft would have been where the principal was indicted . hnt the substantive offence must be stated , tbat he received the goods knowing them to have : been stolen , "ml King v . Stock" stood as a single case , and gave no analogy to another case . It was material that anv 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 that « si valuable from the observations of Lord

      Kenyon . Intha 5 th T . R ., 620 ; that was an indictment against rebels ^ and all the material facts were stated to have occurred at Carlisle , although they were tried in Surrey ; ug that was a peculiar case , where there was a dispeum tion of the statement of venue . The indictment set out the peculiar circumstances , and recited in the cs > tion the Act of Parliament which gave the authority If they were to take the venue in the margin , by as £ logy it was plain the only venue there stated Was Sorter and , therefore , if ever there was a case of dispemaffon

      of the statement of venue , that was the casa , becanje the recital of the Act of Parliament gave notice of tfc circumstances under which the authority was gftsn . but Lord Kenyon said , notwithstanding that , it ir » necessary to state every essential issuable fact with fo proper Venue . That was a recognition that , notwith . standing the venue in the margin , that venue conld not dispense with the proper allegations in the body of the indictment Was this an issuable fact ? He an . prebended it clearly was so . If they looked at the natare of the plea of not guilty they would see it vast cumalative traverse of everything necessary to be proved to found the legal guilt of the party Here there were two incidents which tbe traTene disputed—one a tumultuously assembling one aidins

      and abetting . If there were no tumultuous aaem . blings there would be no aiding and abetting ; and there might be tumultuous assemblings and n « aiding and abetting , and the defendants woald be not guilty It was not a mere inducement , it was the very gfet of tbe case . In a case of murder the indictment ought to state all tbe principal averments . If it were an ordinary case of principal and accessory there was no precedent which shewed that the Intro ' dnctory material averment of the principal ' s gnilfc » bi net stated with the proper venae . If they chose not to consider this with the siDgle intention that » U parties were principals as misdemeanants , the venae

      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 the patties should be otherwiie than out of the realm . The matter was not to be left in doubt or uncertainty , the party ought to know npon looking at the indictment the offence with which he was charged . There was nothing to show that an offence had been committed within tbe jurisdiction of the Court If this had taken place in France , or ont of the jurisdiction of the Court , it was not an offence indictable in this country . Wsb there any thing to show this state of facts existed in this country ?

      Mr . Justice Williams asked if it was admitted , that if it distinctly appeared to havebeeu donsin this country it was an offence ? ( We did not catch the answer . ) . Mr . Serjeant Murphy said the Solicitor-General had said there was no venue to the fifth count , unless the act of Parliament interposed and ended it Now it was plain that tbe caption in an indictment was no part of the indictment itself . If it should appear by the indictment or information that the Court had jurisdiction , the statute would care the defect . The fifth count independent of being bad on other groundB , as not showing there ever had been a continuance of any set 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 r This was no improper

      or imperfect venue : was no venue the want of a proper venae ? It could not be said that the want of venne was the same as an Imperfect venae , nor could it beiaid tbat it was an imperfect venue . He , therefore , snbmitted to the Court , that upon the fifth count , whatever question there might be on the fourth , there could be no answer to this objection , which was fatal , and the statute conld not by possibility cur e ifc . Then waaa difference between the total omission of time and an absence of a proper statement of place . They mast consider that unless jurisdiction was shewn , the place could not be inferred . The Court might have jurudiotion , though there was an omission of the time ; but it could not have jurisdiction without some place being shown . He had to contend that were the indictment was found had no reference to place ; but that the judge mu&t have that fact brought to bis knowledge .

      Mr . Bodkin , on the same side , had cot believed that the law officers of the Crown would have endeavoured to sustain a count where no venue at all waa stated . Tbe course of argument taken by the Attorney-General had been repudiated by tbe Solicitor-General ; the former had argued that the jurisdiction was referable to the character of the offence , 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 tbe Court , as in many other instances , to convict the Legislature of an absurdity . It Was not enough that there was no venae , but something must appear to show tbat it was within the jurisdiction of the Court . If two counties were mentioned , the word " aforesaid "

      might have reference to either . There was m absence of venae in the fourth count It was also so loosely worded , that it was difficult to understand what tha precise offence charged was . It was difficult to say from it whether these persons were aiding and abetting at a distance from where the offence was committed , 01 that they were personally present taking part in the act Stotts was an accessorial charge ; this was a substantial charge , and there was a material distinction between the two cases . In a case arising ont of " The Qaeen V . Caspar and others , " the gold dust robbery , the Indictment was held bad for want of particularity , in alleging tbat the prisoners incited another to commit an offence , without , on the face of the indictment , naming the person or averring that he was unknown .

      Mr . Atherton then proceeded to address the Conn on the part of some of tbe other defendants , and went over a similar ground of argument , citing the case of " Mellor against Walker , " 3 William ' s Saanders , 5 b ., and the notes thereto , to show the two counts of the indictment bad under tbe roles of criminal pleading , for not setting out a venae in the body of the indict- , ment , where the venae was local and material , so tbat it could not ba known where the venire / ados was to be awarded . The Court intimated that they would consider of theirjudgment .

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      We have the highest authority to state , that if any of the Chelsea or KUmainham pensioners connect themselves with the repeal movement , directly or indirectly , their names will instantly be struck off ; he list . —Belfast Chronicle * Wilful Murder . —On Friday , May the 19 ib , & lad named Isaac Kettleband , aged ten years , soa of William Kettleband , of Wysall , labourer , was missing . On the Tuesday his body was found in a horsepond , on the farm of Mr . Henry Hebb , situate near to a barn and a stable , at which the deceased and his father usually worked . An inquest was held on the body the same evening before Mr . C . Swap * coroner , and no evidence to the contrary being adduced , a verdict of " Accidentally drowned" was returned . On the same evening and daring the next day , the village gossips , in talking the affair over , began to think it possible that font play might have been used , as the father of the deceased was known to be a violent and passionate manand it

      wasnoto-, rious that he had always most shamefully and brutally maltreated the boy . Mir . Browne , of Wyjue 8 wold , 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 that it was 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 dee p in somo parts ; w is , except at one corner , surrounded by a deal ieucet about four feet high , and is so situate that the boy could not possibly have broken his neck in falling m accidentally . These Circumstances , connected with the anxiety the father exhibited to have tha corpse interred before any surgical examination took placej excited such suspicions that the deceased had been unfairly " done to death , " thatia second inquest was deemed indispensable . Accordingly a notice was seat to the coroner , and Kettleband was taken into

      custody . Mr . Swann consequently commenced a most rigid inquiry on Thursday , the 35 th , which was at the close of the day adjourned until Monday 1 * 8 ^ the 29 th . Mr . Hebb , in whose employ the deceased and his father were , has three farms—olie at each «' the villages of Wygall , Key worth ; , and Stontonr- « B « there ia no residence ^ n . the faini ai- ^ jaall .. Tn « farm buildings are situate about a mile from the village , and stand the width ot % . very large fiwd from the road ; they consist of a barn and stables »» right angles of each other , and the pond spoken of ifl not more thafl ^ twenty-five or tnir */ yards distent . On Thursday a Jury sat at the PleuKb / Inu , Wysaf ^ before whom Mr . Swann commeaeed his inquiry , and a verdict was returned of ¦ ¦ ** Wi ^ nmrdw against some person or pereoos uD&iXMvn . 1 ' The prison 6 * was then discharged oat ef esistedy . —NotibiS ^ ^ Journal . .

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      £ fgsr- —¦ THE NORTHERN STAR . I .

  • 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-ncseproduct654/page/6/