The Sun.
London, England, 1848-10-30 00:00:00

TRIAL OF MR. C. G. DUFFY.
DUBLIN, FRlDAY.—Judges Crampton and Torrens
took their seats in the Commission Court this morning
at the usual hour.
Shortly after eleven o'clock the county grand jury
handed down their finding on the bill sent before them
against Charles. Gavin Duffy. It was signed by the
foreman " A true bill for self and fellows."
ARRAIGNMENT OF MR. DUFFY,
A few minutes before onv o'clock Mr. Duffy was
brought into the dock and placed at the bar. He looked
rather pate and thoughtful, and seemed to have suffered
a good deal from his protracted imprisonment. On look-
ing round the court be recognised several friends and
bowed cheerfully to them.
The ATTORNEY-GENERAL' said that in this case
against Mr. Charles Gavin Duffy, the prisoner, a bill
was found at::the last commission by the grand
jury, which he now moved should be quashed. Ou
that occasion a bill was preferred under an Act
of Parliament of the then session, charging Mr,
Duffy with certain felonious compassings, and re.
lying upon several publications in a newspaper, of which
he was the proprietor. An application. was made at that
commission on the part of the Crown, founded
,on the
affidavit; for the purpose of abandoning further proceed,
ing upon that bill, hecause subsequent to the finding of
the bill a letter in the handwriting` of Mr. Duffy, was
found in the pcissession of Mr. Smith O'Brien, which
was at the time characterised as being of a very treason-
able description; and it was thought advisable to have a
new bill prepared introducing into it this letter. At the
present commission a bill had been found against Mr.
Duffy, by the county grand jury, for the same matters
contained in the formter bill, with-the addition of this
letter, and also a manuscript article, not included in the
former And he would: now very shortly
state the grounds .upon which-- this charge had
been made. At the last commission a gen,
tleman named Martin was tried for a similar offence be-
fore a city jury—a challenge was put in to an-individual
juror on the.ground that he was a householder and inha;
bitant of the city of Dublin. He (the Attorney Generals
did not conceive that challenge was well founded. It
was founded on an old charter of the corporation of
Dublin, giving to them the goods of persons convicted
of felony, and, therefore, that every inhabitant and
householder, who would be liable to the Pay-
ment of borough rate, was, in point of fact, inte-
rested in the conviction of felons.. He had demurred
to that challenge, and the judges agreed with
his argument and allowed the demurrer. However, very
able and eminent Counsel for the prisoner had given a
certificate that the judgment allowing the demurrer is
one that in their opinion would be reversed by a writ of
error. Acting upon that he (the Attorney-General) had
felt it his duty to allow the writ of error in that parti-
cular case, which now stood for argument in the Court
of Queen's Bench.
Judge CRAMPTON—I dare say the objection that will
be made is that you should enter a nolle prosequi.
The ATTORNEY-GENERAL said it was held, in the
case of " The King v. Stratton," that when it was net
an indictment, but.a criminal information filed by the
Attorney. General himself, he might there enter a nolle
prosequi, the whole being under his own jurisdiction,
and without the interference of the grand jury. In the
case of Mr. Mitchel the parties pleaded in abatement,
which was in effect a plea of lis pendens, and the Court
of Queen's Bench decided that lis pendens was not, a
good plea in a criminal case; but that they would not
oblige the party to plead to the new indictment until the
former indictment was quashed. Now, one bill having
been found at the present Commission, and the Crown
hoping to be able to go to trial upon it, they thought it
right that another bill should not be pending against
Mr. Duffy, and therefore he humbly moved that the
former bill be quashed.
Sir COLMAN OTOGHLEN thought that the most regular
course would be to enter a nolle prosequl, but if their
Lordships thought the better course would be to quash
the indictment, they had no objection.
The previous bills were quashed accordingly.
Mr. SMYLT said that two writs of habeas corpus were
issued in this case, one directing the city sheriff to hand
over the prisoner to the custody of the county sherip,
and the other to the county sheriff, directing him to re-
ceive the prisoner into his custody.
Mr. BUTT—If their Lordships would pardon him for
saying that Mr. Duffy was then brought to the bar pf
the Court in Custody of the sheriff of the city, he would
shortly state .the objection he made to this proposed
transference of custody. He did not disguise front his
Learned Friends for the Crown, that his real objection
wasto the trial of Mr. Duffy on this indictment in the
custody of whomsoever he might be. This was a bill of
indictment found by the grand jury of the county for an
offence committed in the city. That could not be dope
'at common law; it could only take place under the 6th
George IV., chapter 51. Under the 3d section .of
that Act this bill had been found, but the 6th section
of that Act provided that it shall and may be lawful
for the justices, ten days before the holding ,of
any session of oyer and terminer; by proper writs
of habeas corpus, to cause any person who ma!
be in cuitody of the sheriff to be removed into the cus-
tody of the sheriff of such next adjoining county, in
order to their trial. This 6th section, providing for this
exact case, desires the prisoner to be .removed by an
order made ten days before the sessions, and it was per-
fectly plain and :manifest:that such an order could not be
made during the -sitting of the court. On those grounds
he prayed toe Court that if the writs of habeas corpus
were improvidently issued they be now withdrawn and
quashed.
Judge CRAMPTON said that when he signed the writs
he was under the impression that he did so as a Judge
of the Queen's Bench.

• Mr. BUTT said that in either case the same objection
would apply.
Mr. SMYLY said, if the Attorney-General had removed
the same bills of indictment from the city to the county,
the notice should have been given ten days previously;
'but Where the bills 'were virtually new, and originated
with the county grand jury, as in this case, he contended
that notice was not necessary.
After some discussion, Judge CRAMPTON entered into
an examination of the several sections referred to by
counsel, and expressed himself of opinion that the section
under which the writ of habeas corpus must be issued
ten days before the holding of the Commission, referred
to cases where the indictment was sought to he trans-
ferred from the city to the county.
Mr. BUTT contended that the 6th section applied to
the present case, where an indictment was found by the
grand jury for an offence committed in the city. There
were two cases dealt with by the statute—one where an
indictment found in the city was to be transferred to the
county—the other where an indictment was originally
found in the county for an offence committed in the city.
The 6th section manifestly could not apply to the former
case, because the prosecutor had no right to remove the
indictment from the city to the county without an order
of the Court. That order must be made when the Court
was sitting; and, of course, it would then be utterly im-
possible to have the habeas corpus issued ten days prior
to the opening of the Commission. Thus the operation
of the 6th section was clearly limited to cases such as
the present, and did not apply to cases where the indict-
ment was transferred from the city to the county.
Mr. Justice TORRENS did not think the prisoner was
aggrieved by having the bill of indictment found against
him in the county. It was merely a transfer of the in-
dictment to answer the charge preferred against him in a
new jurisdiction, without reference to new proceedings.
If Counsel looked at the section cif the Act that applied
he would find that such was the case.
Mr. BUTT—That would•be true if the bill of indict-
ment was found for an offence committed in the county.
Mr. Justice TORRENS—.The bill of indictment being
preferable in the county, the law must consider the of-
fence as having been committed in the county.
Mr. BUTT would undertake to show that such was
not the case.
The venue was not laid- in the county of
Dublin, but in the city, in the parish of St. Thomas ;
malt had'been decided that when the venue was laid in
the county it should be proved that the acts had been
c
committed
yin the county. An application might have
been made I for a writ
authority
habeasto
corpus ten days before,
grant?
but where was the
ON—What is Your motion ?
Mr. BUTT—To quash
Mr. Justice Cit "PTthe indictment 0 t
U he
Actground r
quires.
that there have been nu
reCogninances. 43the
CRAMPTON will raise the same
Mr. Justice URAM

should
dtnraont transfer
put in
question. . . •
thenotthadtemnynDuffrtygshht
Mr. BUTT—rWe do
the Crown ; but we say . .
upon his trial, at,this Commission. In truth this is an
objection to the arraignment. i Colman O'Loghlen,
who has considered the case more than I have, will
now
proceed, wit; your Lordship') permission.
Sir COLMAN' 011,001thtlf then proceeded to say that
their objection to the indictment was threefold. The
Court was aware that- the indictment, which was for an
offence committed in the countY
_of the cit—
y of Dublin,
was found by the county Kam! jury as being of the
county adjoining. It was plain that unless the Crown
was authorised to do this by statute they could not do so
by common law. If there was authority at all for the
proceeding it was given by the 6th of Geo. IV., cap. 51
and counsel submitted that the indictment should be
quashed on three grounds—'first, that the Act did not
apply to public but to private) prosecutions; second
d , as-
suming that it did,' that the ten days'' notice rendered
necessary had not been given;
_Tid, thirdly; that the
Provisions of the 13th section, which required that a into had re-
cognizance should be entered not been com-

plied with.
•
Mr.' SMYLY said it was a mistake to say that the re-
cognisance had not been' entered into.. Counsel then
handed in the recognizance. -
Sir COLMAN (YLOGELEN proceeded tosay that he was
not aware that the recognissnces had been entered into.
But the other-objietlena remained. Supposing that the
Act applied_to public prosections, the ten days' notice
that the case will be brought into asadjoining county
had not been' givene The recognisanees should have
custody .of the sheriff of
been returned to- the next county, the party should
have, been removed into. the
the county tett-days before the sitting of the Court,
arid ten-days' notice of the proceeding should have been
given to the party or his witnesses. Ten days' notice
should have been given to the person before whom the
.
infoonttious were given, that they might 4e raturued at