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Crown and Government

JOHN MARTIN, [MOORE, J.-Mr. Attorney-General, would you say, in the case

IN ERROR, of an executor bringing an action for the recovery af a sum of THE QUEEN. money, that in such case a creditor, who had a chance of being

paid out of the sum recovered, would be competent?] In the case and of Nowell v. Davis (5 B. & Ad. 368), it was held that in an action Security Act. against executors for a debt of the testator, a person entitled to

an annuity under the will is not disqualified by interest from giving evidence for the defendants.

JUDGMENT.—November 18. BLACKBURNE, C. J.-In considering the different grounds of error which have been assigned in this case, I shall take them in the order adopted in the arguments at the bar. The first is the caption of the indictment, which is contended to be defective in not stating where and before whom the grand jury was sworn; in not stating that they were sworn and charged to inquire for our lady the Queen, and the body of the county of the city of Dublin; and in not stating that the indictment was found by twelve good and lawful men of the city. It is to be observed that the caption is not a pleading nor any part of the indictment. It is a statement of the proceedings, and should describe the court where the indictment was found, the time and place it was found, and the jurors by whom it was found, with sufficient certainty. The

crown contends that this caption does so, and such is our opinion. Judgment. It states an adjournment of a commission of Oyer and Terminer;

that it was held on the 8th of August, at Green-street, in the county of the city of Dublin, before commissioners appointed by commission under the great seal, and that at that adjournment it was presented on the oaths of good and lawful men of the said county of the city, naming twenty-three, that Martin committed the felonies of which he was afterwards convicted. The question is, does this caption afford the required certainty ? First, it states a presentment on oath, in court that day, and before these commissioners, so that this oath must have been there and then administered and taken, and the supposition suggested that it might have been administered by some other court, on some other day, is absolutely repugnant to the plain meaning of these words. Next, it is objected that the words “sworn and charged,” which are used in the common form, are here omitted. In support of the objection, many cases, most of them in the reign of Charles II., have been cited and relied on. Were we constrained by their authority we should act on it with reluctance, considering, as I have said, that the caption is not a pleading, but a copy of the entry of the proceedings made by the officer of the court, and also considering that we have here a presentment on oath, by a jury of the county of the city, of a crime committed in the county of the city. But the formality of this caption, which is in accordance with the precedent in the case of The King v. Weldon, in this very same commission court, is supported by three distinct authorities. In the case of The King v. Morgan (1 Lord Raym. 710), there was

And in a court held"ites omission, in tihe, was on 10 security me

an indictment for riot removed into the Queen's Bench, and after- JOHN MARTIN, wards tried at the assizes. There was a motion of arrest of judg. IN ERROR, ment, and there, where the ground of that motion was the omission THE QUEEN. of the words “sworn and charged” in the caption, Holt, C. J., says, that the whole court was of opinion that it was good,

Crown and

Government although the words “gworn and charged” were omitted. And the Security Aci. case of The King v. Greycox (Sir Thomas Jones, 180), was on a motion to quash an indictment for the omission, in the caption, of the word jurati, and the court held it supplied by the words supra sacramentum. And in 2 Keble, p. 59, The King v. Ambler, the case came before the court on a writ of error, and the indictment was there supra sacramentum, and it was objected that it was not onerati et jurati, and it was there held to be sufficient. Twisden saying in the case that was cited, Williams's case, the words supra sacramentum were omitted. Besides this, it is, as far as the opinions of text writers can be referred to or relied on at this day, considered that if it appears that the finding was on oath, it is sufficient, though the words “sworn and charged” be omitted, and for this several text writers have been cited. The last objection is, that the indictment is not said to be found by twelve men. This has scarcely been relied on, because it is answered by the fact that there are twenty-three names, although their number is not stated. We are, therefore, of opinion that the first cause of error must be overruled. The second class of objections is to the counts of the Judgment. indictment. The two last of them, that is, the thirteenth and fourteenth, are objected to on the ground that they do not set forth the writings which the indictment charges as overt acts of the compassings stated in those counts. It is not necessary to decide on this objection, and I pass it by, merely observing that the counts here are conformable to the precedents of indictments for high treason under the English act of the 36 Geo. 3, of which the act of the 11th Vict., on which the present indictment is founded, is a literal transcript, and no objection ever appears to have been made to any of those counts, so framed on the similar enactments of the statute of the 36 Geo. 3.

But we think the other counts of the indictment are not open to any of the objections that have been made to them. They severally charge that the prisoner did feloniously compass, imagine, invent, devise, and intend to deprive and depose our Sovereign Lady the Queen from the style, honour, and name of the imperial crown of the United Kingdom; and the said felonious compassing, imagination, device, and intention, did express, utter, and declare, by then and there feloniously publishing certain printings in a certain number of The Felon newspaper, one of which is as follows.

This is in the exact terms of the statute, and it is contended by the crown to be therefore sufficient. But it is objected that in pleading, it should have been further averred that there was some particular design imported by the article published, and in prosecution of and in reference to which it was published, and that it

Croton and

John Martin, should have stated that it was published “of and concerning"

IN ERROR, that design. I confess I do not see how more could have been THE QUEEN. done than is found in this indictment. The crime is to depose

the Queen. The expression of that design and the means used,

that is, the overt act to effectuate it, are the publication of the Government Security Act. articles, and on its contents must depend whether it is such as to

evidence that design and tends to its effectuation,--and no question has been raised that it does both.

Nothing can be more clear than the language of the pleading and of the statute. The design, the evidence of it, and the act done in pursuance of it, are clearly and explicitly stated, and no other design need be stated, if, indeed, it were possible to do so. The cases in which the prefatory words “of and concerning” some matter or person are required, are cases of libel and oral slander, in which words written or spoken require inuendoes to explain their object and application, when these are not plainly expressed. But this is not a case where the design or intent of the publication is left at large or to conjecture. For here the charge is made. It is a compassing to depose the Queen, and it is expressed by the publication of these articles, so that all that would be required, even if the case before us were strictly analogous to the case of libel or slander, is in substance contained in the present

indictment, and there is not, as my brother Perrin suggests, a single Judgment.

inuendo in reference to any of these publications, not a single instance in which it was necessary to explain the object or the intention by the insertion of an inuendo.

It was, in the second place, objected that the publications should be said to be felonious. I do not see how, in propriety of language, these publications could be called felonious. The word “felonious” is properly descriptive of the intention with which means are used or acts are done, but the instruments used, the gun for instance, with which a murder is committed, and here the articles which are proof of the felonious intent of the publisher, can be called felonious only by a misapplication of the term.

The act done by the prisoner, namely, the publication, is properly stated to have been feloniously done by him, and this satisfies all the law requires. We are, therefore, of opinion, that allthese errors assigned on these various counts should be overruled. The third error assigned, is the disallowance of the challenge for cause of Williamı Duff, to which challenge the crown demurred. and which demurrer the ci urt allowed. I need not here repeat the words of the challenge; it is this in effect, that the juror being a burgess of the corporation of the city of Dublin and a ratepayer had an interest in the conviction of the prisoner, Henry V. having granted to the corporation the goods and chattels of felons within, or, as has been contended, convicted within the city. Various objections have been made to the form of this challenge. Were it necessary, we should consider them in detail, and some of them are of a very serious character, but as we think the challenge should be disallowed on its merits, I shall not intimate any opinion

IN ERROR,

Crown and

upon these defects in form which have been suggested at the bar, JOHN MARTIN, to one of them I shall have occasion particularly to refer; I mean IN that which relates to the enjoyment of this franchise.

THE QUEEN. This challenge contains double matter, first, it suggests an interest in the juror as a burgess of the corporation, and, secondly,

Government an interest as a ratepayer in the county of the city of Dublin. Security Act. Taking these separately, I shall inquire first what interest has a burgess as such in the forfeiture consequent on the conviction of a felon? I can discover none. The goods and chattels forfeited will belong to the corporation : can he have any share of or personal interest in the goods so forfeited ? They are all dedicated to public and specified purposes; the corporation is but hi trustee to see to their application to these purposes, and even this application and disposition is confined to the council, to the total exclusion of the burgesses. My Lord Chief Baron, in pronouncing the judgment of the court below, in which Baron Pennefather concurred, speaking on this particular objection, says—“The objection is, that he is not indifferent as he stands unsworn, and not indifferent, because he has an interest in the subject matter of the proceeding, that is, because he has an interest in conviction in order to obtain a benefit from the goods. The Municipal Corpo. rations Act, whether it does or does not vest the property in the lord mayor, aldermen, and burgesses at large, does unquestionably vest the whole control of the property and entire management of it Judgment. in a select body, which the act of Parliament creates ; and although the burgess may, as an individual, compose a part of the entire corporation quâ burgess, as a burgess he is not entitled to do a single act for the disposal of the property which may be the subject matter of recovery under the right to obtain the felon's goods. The town council alone are invested with the authority to dispose of them; and although the entire corporation may be nominally the trustees, yet even in the capacity of trustees, the effective power is vested in the town council. Looking, then, at that cordition of things, and looking to the circumstances in which burgesses stand, looking to the enormous inconvenience that must necessarily result from any other decision, it appears to me we ought to hold in this case that the juror is not disqualified by the fact stated in the challenge, and, therefore, we ought to allow the demurrer, and overrule the challenge." In every part of the judgment of that eminent judge I entirely (and so do the rest of the court) concur. These reasons which I have just stated, with that I have already assigned, satisfy me that as a burgess this juror was not liable to any objection. The next question is, was he interested as a ratepayer? The challenge states that the goods and chattels of felons are applicable to the purposes of the borough fund, and that William Duff is a burgess, and an occupier and tenant of certain hereditaments liable—that is, as the counsel for the prisoner contendpresently liable to be rated to a borough rate, and that the borough fund, after the payment of all debts of the whole corporation and satisfaction of all lawful claims on the real and personal

JOHN MARTIN, estate of such body, is not sufficient for the purposes in the act

IN ERROR, stated. The result that we are called on to infer is, that William THE QUEEN. Duff has an interest in the forfeiture, as the goods forfeited go in

ease and reduction of the rate to which he is so liable. The authoCrown and

rity mainly relied on in support of this challenge is a passage in Government Security Act.

Hawkins's Pleas of the Crown, in the following words :-“It hath been allowed a good cause of challenge on the part of the prisoner that a juror hath a claim to the forfeiture which will be caused by the party's attainder or conviction.” When this passage was cited in the court below, the authority for it not being at hand, my Lord Chief Baron observed : “In Hawkins it is alleged as a ground of challenge that the juror has a claim to the felon's goods; I must, I think, consider that to signify a direct and immediate interest in the subject-matter of the trial.” Now that the authority is before us, his lordship's opinion of the author's meaning is most fully confirmed. That authority is Lord Maguire's case, in the 4th volume of the State Trials, and there the matter of objection suggested and allowed as a challenge was, that Lord Maguire's lands had been actually sequestered, and that the juror had obtained a grant of them. In such circumstances nothing can be plainer in justice and in principle than the incompetency of such a person to serve on the jury. The case of Hesketh v. Brad

dock (3 Burrows, 1847), and several passages from the judgment of Judgment. Lord Mansfield were also strongly relied on in support of this

challenge; in that case, the ground of objection was that the sheriff
who returned the jury, and the jury who tried the case, were free-
men of the city of Chester; the action was an action of debt on
a by-law made to enforce a custom that none but the freemen of
that city should carry on trade in the city of Chester, Lord Mans-
field says—these passages were not cited—“Every freeman”-and,
indeed, it is quite obvious—"was interested in the issue to be
tried; the exclusion of foreigners is a monopoly in the freemen
themselves; therefore, every freeman had an interest and bias of
and in the very issue to be tried in that case.” The very object
of the suit, it is quite manifest, was to assert and establish the rights
of the sheriffs and the jurors themselves. In this and the various
other cases of the objections to witnesses which have been cited and
which I have examined, there was an actual present and immediate
right claimed or vested dependent on, and to be affected by, the
result of the depending suit or action. But to see if these cases,
or any position established by them, have any sort of application
to the case before the court, let me now inquire into the exact
character and nature of the interest which the challenge alleges to
exist in the present case. The allegation is, that the borough
fund, after the payment of the whole liabilities of the corporation, is
not sufficient for the purposes in the said act mentioned. This, it is
contended, shows a present and immediate liability in the juror to
be rated for the borough fund ; and, therefore, sustains the alle-
gation that the juror is now liable to be rated for the borough
fund, in the words of the challenge. But this is not so. The

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