The Sun.
London, England, 1844-09-03 00:00:00

THE SUN, LONDON, TUESDAY MORNING SEPTEMBER 3 1844.

EGYPTIAN AFFAIRS.

ALEXANDRIA, AUG. 19.—After the infliction of the
fines upon the several members of the Council at
Cairo, by which Mehemet Ali increased his finances
by upwards of 250,000 dollars, his Highness seems
to have thought no more of this matter, and left the
capital for Alexandria, where he arrived in the after-
noon of the 9th inst., amidst the firing of guns from
all the ports in and about the town, and all the ships
of war in the harbour, Egyptian, French, and Eng-
lish. Some preparations had been made for the re-
ception of his Highness, but, on consideration,
it was decided that nothing particular should
take place, as he might have taken it amiss. The
day after his arrival the Viceroy received all the
grandees of the place, the Consular and European
merchants, with whom he conversed as on ordinary
occasions. His Highness was not looking very well,
but is now recovering fast; he has resumed his usual
habits, and all is again perfectly quiet.
It now appears that the only cause of Mehemet
Ali's excessive ill-humour, which made him leave
Alexandria so suddenly for Cairo at the end of last
month, was the conduct of several members of the
Council at Cairo, who had taken some measures with
regard to the government of the country without
his authority, and without informing him of what
they had done, and his Highness did not seriously
Mean what he said before his departure about resign-
ing and going to Mecca.
Semi Pacha, Mehemet Ali's private secretary and
constant attendant, leaves to-morrow by the French
steamer Le Caire from Malta and Lucca, where he is
to take the mineral baths for the benefit of his health.
This old and experienced man enjoys the fullest con-
fidence of the Viceroy, and his Highness's parting
with such an able counsellor tends to show that he
does not meditate any change for the present.
The Viceroy has during the last few days dis-
patched the greater part of his ships of war, with
ample funds, to the coast of Asia Minor, to pur-
chase horned cattle and horses for Egypt. Most of
the ships have no guns at all on board, and the re-
mainder very few.
On the 13th the French steamer from Syria
arrived here with 157 passengers, mostly Turkish
pilgrims proceeding to Mecca. Amongst the passen-
gers from Constantinople was his Excellency Mazloum
Bey, Minister of Justice and Charge d'Affaires of
the Viceroy of Constantinople, sent here by the
Sultan to investigate the state of affairs in Egypt ;
but, as he found all quiet, he returns to-morrow to
Constantinople in the Nile. The Viceroy has made
him several handsome presents, and sends 16 horses
to the Sultan.

THE STATE TRIALS.

WRIT OF ERROR.

HOUSE OF LORDS.—YESTERDAY.
OPINIONS OF THE JUDGES.
This morning being the time appointed for the
Judges to give their opinions on the points submitted
to them by the House of Peers in the important case
of the Queen v. O'Connell and others, the approaches
to the House of Lords were occupied at a very early
hour by persons anxious to gain admittance. The
doors wet e opened at ten o'clock, but long before that
hour a crowd of parsons had assembled outside, and
when they were opened there was quite a rush. The
space below the bar of the House was crowded with
spectators and counsel. The Counsel for the Crown
and those who appeared for the traversers occupied
the places in front. All those engaged in the cause
were present, except the Attorney-General ; the re-
mainder of the place below the bar being appropri-
ated to the use of spectators. Several elegantly-
dressed ladies were present in this part of the House.
The galleries were crowded within a few minutes
after they were opened. On our admittance to the
gallery we found the greater number of the Judges
and of the Law Lords present. The Bishop of Lich-
field read prayers. Among the Judges present
we observed Lord Chief Justice Tindal, Mr. Justice
Patteson, Mr. Baron Gurney, Mr. Justice 'Williams,
Mr. Justice Coltman, Mr. Justice Wightman, Mr.
Justice Maule, Mr. Baron Alderson, the Lord Chief
Baron, and Mr. Baron Parke. Among the Law Lords
were he Lord Chancellor, Lord Denman, the Lord
Chief Justice ; Lord Brougham, and Lord Campbell.
Lord Cottenham arrived shortly after the commence-
ment of the proceedings. The Duke of Cambridge
was in the House before the commencement of the
proceedings, as were Lord Beaumont, Lord Redesdale,
the Earl of Dalhousie, Lord Strangford, Lord Boston,
and Lord Tankerville.
GRAY V. THE QUEEN.
Mr. Justice WIG HTMAN proceeded to deliver his
opinion in this case, in which the question submitted
to the Judges was, whether a party charged with
treason and felony had a right to the peremptory
challenge of a jury after they had been sworn. The
Learned Judge gave his reasons at considerable
length, and was clearly of opinion that the Court in
Ireland ought to have allowed the challenge.
Mr. Justice Coltman and Mr. Justice Williams
were of the same opinion.
Baron GURNEY said he concurred in the opinion of
the Learned Judge who had preceded him. He did
not think that the distinction of the right of challenge
being allowed only infavorem vitce was sound.
Mr. Justice PATTESON concurred in the opinions
which had been expressed by the other Learned
Judges, and thought that the peremptory challenge
ought to have been allowed.
Mr. Baron PARxE said that he regretted he felt
obliged to differ from the Learned Judges on the
question put by their Lordships. The question ap-
peared to him to be, what was the rule of common
law in allowing peremptory challenges, whether it
extended to all cases of felony or to capital offences
only ? It was contended, on the part of the prisoner,
that the right of peremptory challenge existed in cases
of felony, whether capital or not; the Crown con-
tended that it extended to capital felonies only. He
considered this was a question of common law only ;
and, in his opinion, Parliament had not interfered
with the subject at least by any express statute.
The 9th Geo. IV., cap. 54, enacted that no person
arraigned for treason, murder, or any other
felony, should be admitted to the right of
peremptory challenge beyond the number of twenty.
['his statute was expressed in negative terms. The
statute of the 10th and 11th of Charles 1., which was
repealed by the statute of the 9th of George IV., was
also in negative terms, and did not enlarge the right
of peremptory challenge. It left it as it existed before,
but it reduced the number from thirty-five to twenty.
These statutes left the question as it was before—a
question of common law. What they had to deter-
mine then was, what the common law on the subject
was, and to ascertain what that was, they
,hould have recourse to those authorities from
which they derived their information in such
cases. In the first place, the only decisions of the
Courts were those which had taken place in Ireland,
and all those decisions had been in favour of the
Crown, and had been constantly acted upon. He
thought that this was a matter of great weight and
consequence. The practice in Ireland showed that
the privilege of pereinptory challenge did not belong to
all felonies, but was confined to those which were capital.
On the other hand, the English practice was to allow
the right of peremptory challenge, but it should be
borne in mind that no objection was ever taken in this
country, the prosecutions in such cases being con-
tacted by private parties and not by the Crown ; and
also that a like practice prevailed in cases of mis-
demeanour, no impediment existing to prevent the
defendant from objecting to as great a number of
jurymen as he thought proper. There was consider-
able force in the remark of Mr. Justice Crampton that
this peremptory challenge was a concession and not a
right. It had been said that the right of peremptory
challenge was not confined to cases affecting life only,
inasmuch as it had been allowed in cases of misprison
if treason. Now it was doubtful if even the right of
peremptory challenge had been allowed in cases of
misprison of treason. At all events the statute of
G-e0.1V., which'related exclusively.to Ireland, made no
mention of misprison of treason. _ He, therefore,
was of opinion: that the right of peremptory
challenge did not exist in cases of non-capital punish-
ment. He believed that it had not been the object of
the Legislature, when they passed the Act of Geo. IV.,
to take away from the accused any right which he
had before possessed, by depriving him of the benefit
of clergy. Such a result had not been contemplated
by the Legislature, nevertheless such had been the
result. It was not however the duty of the Judges
to supply the defendants of the Legislature—it was
their duty to administer the law as they found it, and
in his opinion the challenge had been properly dis-
allowed.
Lord Chief Baron POLLOCK was of opinion that the
Court ought to have allowed the challenge. The sta-
tute of the 9 Geo. IV. placed the law in Ireland on
the same footing as the law in England, and in this
country the right of challenge was regulated by the
statute of 22 Henry VIII. ; by that statute it was
enacted that no person arraigned for any petty treason
or felony should be admitted to challenge peremptorily
above twenty.
That by implication gave him a right
of peremptory challenge under twenty. There was
nothing to show that the life of the accused must be
in danger, in order to entitle him to peremptory chal-
lenge ; on the contrary, the practice was al-
ways to allow the peremptory challenge. In
cases in which the law took away capital
punishments he was of opinion that all the privileges
of the accused remained, unless they were expressly
taken away. For these reasons he was of opinion
that the challenge ought to have been allowed.
Lord Chief Justice TINDAL was of opinion that the
Court below ought to have allowed the challenge on
the part of the prisoner. No prisoner could be de-
prived of an important right by implication. Peremp.
tory challenge was always allowed in favorem vitce,
and it was also allowable in all cases of felony, for
anciently all felonies were capital. Now, it would be
dangerous to contend that the right of challenge was
taken away, because a statute had abolished capital
punishment. The punishment of transportation for
life was unknown to our ancestors—had they known
it, a punishment almost as severe as death itself, it
was impossible to say with what safeguards they
might not have thought it right to invest the accused.
The ground on which the argument on the part of
the Crown in the present case rested was, that the
statute Ist of Victoria must he so construed by impli-
cation as to deprive the prisoner of the privilege of
peremptory challenge. It appeared to him that such
an implication could not be resorted to in the
case
him ineh ppracticelii if not in strict right, for
tation were unavoidable to
Upon give effect to the statute. No such necessity appeared
these grounds he humbly offered as his
to exist.
p centuries,l oy eod f
ab privilege beneficial to the prisoners, and em-
ployed
uopinion, in answer to their Lordships' question, that
the peremptory challenge tendered in this case ought
to have been allover!.
The further consideration of the case was then ad-
ourned until Wednesday.

her Majesty's ship Belvidera left this port at day-
break on the 9th instant, for Malta, towed out to
some distance by her Majesty's steamer Geyser. This
frigate made a very short stay here, having arrived
only late on the previous evening.
The two annual fairs of Tautah and Sheik Ibrahim,
which take place at this season in the Delta have been
exceedingly well attended this year. It has been
computed that at the Tautah fair there were no
fewer than 120,000 persons assembled, and a very
large amount of business has been transacted there.
On the 17th instant the dam that closes the
mouth of the canal of Cairo was cut. This ope-
ration is done when the Nile has risen sufficiently
high for the Government to proclaim that it has
attained the sixteenth cubit of the Nilometer. In this,
however, the people are always deceived, for there is
an old law that the land-tax cannot be exacted unless
the Nile rises to the height of sixteen cubits of the
Nilometer, and the Government thinks it proper to
make the people believe as early as possible that it
has attained this height. The period when the com-
pletion or abundance of the Nile is proclaimed is
when the river has actually risen about twenty or
twenty-one feet in the neighbourhood of the metro-
polis, which is generally between the 6th and 16th
of August; that is, when there yet remain, of the
measure of a moderately good rise in the neighbour-
hood of Cairo, three or four feet. _

The schooner Emmelje arrived here on the 16th
inst. from Beyrout, which place she left on the 10th.
The Turkish fleet was still in the Bay of Beyrout.
The country all about Nablous was in a very dis-
turbed state, and the Turkish Government appears not
to have the power to maintain peace in those districts.

A CCIDENT.—A shocking accident happened on
Wednesday night last, at the Dereham Theatre, to Mr.
Dillon, one of the performers. He had just com-
pleted his dress for the character he had to repre-
sent, and was preparing to leave the dressing-room.
when he approached too near a lighted candle, and
was instantly enveloped in flames. He ran towards
the stage and was observed by some of the
audience, who rushed forward and endeavoured, by press-
ing upon him, and covering him with such things as were
at hand, to extinguish the flames, in which they did not
succeed till he was so seriously burnt that ho now lies in
a very precarious state. A gentleman with great pre-
sence of mind stepped forward and announced that no
further danger was apprehended, and happily prevented
any sudden rush to the doors.—Norfolk Chronicle.

THE BRITISH ASSOCIATION IN YORK.— Tht
general subscription fund for the approaching meeting
of this scientific association has already reached a sun_
exceeding 900/. It is exclusively appropriated for
covering the expenses at York, in which city the an•
nual meeting is to take place on the 26th of next
month. Earl Fitzwilliam is a contributor of 1001. ;
and among the subscribers are the Archbishop of York,
50/.; the Earl of Zetland, Lord Feversham, Lord Wen
lock, and Sir John F. B. Johnstone, Bart., M.l'., respec-
tively 25/.; Viscount Morpeth, 20/.; the Bishop of Ripon,
Lord Hotham, M.P., Hon. 'J. Stuart Wortley, M.P.
Hun. 0. Duncombe, M.P., Sir Edward Vavasour, Bart,
Sir W. B. Cooke, Bart., Sir Thomas D. Legard, Bart.
Sir George Cayley, Bart., Sir J. 11. Lowther, Bart..
M.P., Mr. H. R. Yorke, M.P., Mr. H. Warburton, M.P..
Mr. A. Lawson, M.P., and Mr. H. Broadley, M.P.,
have each transmitted donations of 10/.—Hull Advertiser.

EXPLOSION OF Two STEAM-ENGINE BOILERS,
NEAR NEWCASTLE.—A most alarming accident oc-
curred on Wednesday morning at the extensive iron fur-
naces of T. Firmstone, Esq., at Little Madeley, neat
Newcastle-under-Lyme, by which one man lost his life,
and property to a considerable amount was destroyed.
The cause of the calamity was the bursting of two steam
engine boilers. At about seven o'clock, both the boilers,
almost simultaneously, burst with a tremendous explo-
sion, filling the air fur some distance around with the
shattered fragments, and vast quantities of bricks and
other materials. The utmost alarm was naturally ex
cited on the works, the men running in all directions for
safety. Great fears were at first entertained that
the loss of life would be considerable, as from twenty to
thirty persons were about the spot at the time of the ex-
plosion. A number of cottages adjoin the works, which
are occupied by the workmen, and out of them women
were observed running in all directions, anxious to as•
certain the fate of their husbands or relatives ; happily,
however (and it was considered little less than miracu
lous) only one individual received fatal injury, although
many had remarkable and hair-breadth escapes. The
unfortunate man whose life has been sacrificed, is Charles
Mayer. He was observed by the engineer, Thos. Rhodes,
in the slack-hole putting coal on the fire, scarcely a mi-
nute before the explosion. His mangled remains were
found amongst the ruins a few yards distant from the
place where he was last seen, and when picked up life
was quite extinct.—Leeds Times.
We are happy to learn that Mr. Whittle Harvey's
Committee of the Greenwich Proprietors has succeeded
in completing an arrangement with the South-Eastern.
We will not anticipate the meetings which are about to
take place on this subject, but we may state, for
the information of those who are interested in
the matter, that the result of the arrangements
will be to give to the ordinary shareholders, after
discharging all outstanding liabilities for the first ten
years, an average dividend of something more than 93.
per share; and after that period in perpetuity nearly
12s. Taking money at 4 per cent., this would '
make the share worth 11/., now increasing to
151. ten years hence ; taken even at 5 per cent. the
present value would be 9/, increasing to 121. In
any case the value of the shares must be regarded as
considerably raised by the new arrangement. The old
preference shares still receive, of course, 5 per cent., but
the securities for all will henceforth be identical, the
whole becoming, as it were, preference shares, guaran-
teed by the South Eastern, at the rates we have men-
tioned. The proprietors are, we think, to be congratu-
lated on the arrangement.--Railway Chronicle.
J. 'TRAVERS, ES.l.—The will of the late J. Travers,
E'q., has been proved in the Prerogative Court, by
Maria Travers, widow, J. L. Travers, Esq., J. I. Travers,

Esq , the sons, and S. Amory, Esq., the executors. The
property is sworn under 70,0001. The will is dated in
1843, and gives Clapham Park (the residence of Mr.
Travers), plate, furniture, carriages, horses, &c., to his
wife, Mrs. Travers. He also gives her the use of the
habitable part of the house in St. Swithin's-lane, where
his business as a wholesale grocer is carried on, and a
legacy of 1,0001. His stock in trade, and business he
gives to his sons, above-named, and makes a suitable
provision for all his children (fifteen in number) except
his son Joseph, who is excluded from all benefit under
the will, having been already provided for by his father
in his lifetime. He directs that his shares in the Assam
Company may not be sold till the year 1850. He gives
to the Unitarian Chapel, Effra-road, Brixton, 2501. To
his executors, and such of his brothers and sisters as
shall be living at his death, Si. each for a ring. These
are the only legacies of interest, and the remainder of
his large property is bequeathed to his wife and children.
DOVER, Aun. 30.—The new iron steamer Princess
Mary, recently placed on the Ostend station, hence with
a mail on Sundays and Thursdays, left Dover harbour
yesterday at ten o'clock, with one carriage and 118 pas-
sengers: this day she returned from Ostend with two
carriages and 82 passengers, and after an extraordi-
nary quick passage thence saved the tide into Dover
harbour. This is a feat never yet before accomplished
by any steam-packet on this station.
THE LATE SUICIDE AT DEPTFORD.—The funeral
of the unhappy girl, Eliza Kendall, took place on Friday
last. The deceased was followed to the church of St.
Paul, Deptford, by nearly fifteen hundred persons, a
very great proportion of whom were females. The pall
was borne by eight maidens dressed in white, carrying
large bouquets of flowers in their hands. At the grave,
the surviving sister was so overcome by the :olemn
scene that she fainted, and was with difficulty saved from
falling in upon the coffin. The three. remaining daugh-
ters were suitably attired in mourning for the occasion,
which had been purchased with sums raised in very small
subscriptions amongst the working classes in the parish
in which they had resided.

STATE TRIALS.
O'CONNELL v. THE QUEEN (IN ERROR).
Lord Chief Justice TINDAL said, the first question
to her Majesty's Judges
namely
pwraospotsheids,by their Lordships
:—" Are all, or any, and if any,
which of the counts in the indictment bad in law, so
that, if such count or counts stood alone in the indict-
ment, no judgment against the defendants could pro.
perly be entered upon them ?" The answer to this
question would depend upon the consideration whether
all the counts of the indictment were framed with
that proper and convenient certainty, with respect to
lrfyta'cioinfn,saopnriyrainocapt a manner
have availed themselves
Pwhich the
such counts
indictment upon a ltaowahsf
wee
that
hehraeeftair substanceatuereeddde.
fone f,nsodotrha
insufficiencyluneo
tnocsodshfeoam,
ur
tubgi
hgnteeehe
dteo
de-
murrer, there was nothing to prevent them from hav-
ing the same advantage from the objection upon a
writ of error. To constitute the crime of conspi-
racy, it was necessary that two, or more than
two, should agree to do in effect an illegal
thing, that is to effect something in itself un-
lawful, or to effect something which, though in it-
self lawful, was sought to be brought about by un-

lawful means. That it was an offence unknown to ,
the common law, and not first created by the statute
of the 33d Edward I. was manifest. That statute
spoke of conspiracy as a term at that time well known
to the law, and professed only to be a definition of
conspirators. It had accordingly always been held to
be the law that the gist and the effect of conspiracy
was the bare engagement and association to break the
law, whether any act in pursuance thereof were done
by the party or not, King v. Edwar.is. No serious
objection appeared to have been made at their
_ _

Lordships' bar against the efficiency of any of
the counts prior to the Gth. Indeed, there
could be no question but that the charges contained
in the first five counts did amount, in fact, to the
legal offence of conspiracy, and were sufficiently de-
scribed therein. There could be no doubt but that
the agreeing of divers persons together to raise dis-
content and disaffection amongst the liege subjects of
the Queen, to stir up jealousies, hatred, and
between different classes of her Majesty's subjects,
and especially to promote amongst her Majesty's sub-
jects in Ireland feelings of and hostility to-
wards her Majesty's subjects in other parts of the
United Kingdom, and especially in England, which
charges were found in each of the five counts, which
first occurred in the indictment, did form a distinct
and definite charge in each against the separate de
Pendants, of an agreement between them to do an
illegal act. It, therefore, became unnecessary to
consider the charge of conspiracy to do other
acts which were alleged to be within the scope of the
agreement. With respect, however, to the sixth and
seventh counts, in the form in which they stood upon
that record, they all concurred in the opinion that
they did not state the illegal purpose and design of
the agreement entered into between the defendants
with such proper and sufficient certainty as to lead to
the necessary conclusion that it was an agreement to
do an act in direct violation of the law. Those two
counts did in substance state in each of them the
agreement of the defendants to have been to cause
and procure divers subjects to meet together in large
numbers for the unlawful and seditious purpose of
obtaining, by means of the intimidation to be thereby,
caused, arid by means of the exhibition and demon-
stration of great physical force at such meetings
changes in the government, laws, and constitution
of the realm. Now, though it might be inferred
from thee counts that the object of the defendants
was, probably, illegal, yet it did not appear to them
to be so alleged with sufficient certainty. The word
"intimidation" was not a technical word, it was not
vocabula mortis, being a necessary meaning in a bad
sense. It was a word in common use, employed, on
this occasion, in its popular sense, and, in order to
give it any force, it ought at least to appear, from the
context, what species of fear was intended, or upon
whom such fear was intended to operate. But these
counts contained no intimation whatever upon what
personsthis intimidation was intended to operate. It was
left in complete uncertainty whether the intimidation
was directed against the peaceable inhabitants
of the surrounding places against the subjects
of the Queen dwelling in Ireland, in general
against persons in the exercise of public au-
thority, or against all the subjects of the realm.
They were looking to the obtaining of these changes
by the exhibition and demonstration of large num-
bers, without looking to the using, or threatening to
use, such numbers against any person or bodies of
her Majesty's subjects, seemed to them (the Judges) to
be simply an exhibition not intended to be carried fur-
ther. The ninth, tenth, and eleventh counts the Judges all
I concurred in the opinion did sufficiently charge the
defendants with agreeing with others for purposes
which were in violation of the law of the land. He
thought it unnecessary to state authorities for the
opinion that the agreement of the defendants with
others to weaken the attachment of her Majesty's
subjects to the lawful institutions of her kingdom, to
bring the laws into disrespect, and to supercede the
lawful tribunals established for the administration
of justice, was an agreement for purposes contrary to
law, and was rightly charged, especially in the 11th
count. As to the 6th and 7th counts, the Judges had
no doubt that they were bad in law, and that if they
stood alone, a verdict for the defendants would pro-
perly be entered upon them. The next question put
to the Judges by their Lordships, "Was there any de-
fect, and if so, of what nature in the finding of the
jury, and the entering of that finding on the record?"
On this question the Judges were all agreed, that the
finding on the first, second, third, and fourth
counts was not supportable in law. In respect to the
first and second counts, they held the finding to be
bad, on the grouud that the jury found the eight de-
fendants guilty of a joint conspiracy on each of these
counts; but they found certain ones of the eight
guilty of other and separate conspiracies under the same
counts. The finding was bad as to the third count,
because the jury found three of the defendants guilty
of all the charges, all the defendants guilty of
certain other of the harges' and all, except Thomas
Tierney, guilty of others. On the fourth count they
found that all were guilty of all the charges except
Thomas Tierney, who was guilty of part only. The
reason of the Judges for that opinion was that there
was only one unlawful agreement charged in the in-
dictment, and therefore the jury could only find one
unlawful agreement on each separate count, for al-
though it was competent to the jury to find them
guilty of different acts on different counts, it was not
competent for them to find all the defendants guilty
of one unlawful object, and some of them
not guilty of other unlawful purposes,
charged in the same count, for this was a finding of
several conspiracies on a count which only charged
one. In the case of the King v. Russell the de-
cision was strongly in support of this view, for it was
ruled that where only one offence was charged the
jury could find the defendant guilty of that one only.
The Judges, therefore, were of opinion that the finding
in the present case is not authorised by law, and was
incorrectly entered on the record. The third question
was, " Whether it was the opinion of her Majesty's
Judges that there was any sufficient ground for re-
versing the indictment, by means of any defect
in the indictment, or of the finding, or entering
of the findings of the jury upon the said indictment?'
That question to a certain extent comprised the same
points as the 11th question; and as there was a differ-
ence of opinion amongst the Judges on these points,
he begged to inform their Lordships that he was
about to express only his own opinion in answer to
that question. In order to arrive at a satisfactory
answer to the question, it was necessary to consider it
as divided into two separate parts—first, whether, in
an indictment consisting of several counts, and the
finding being good on some and not so on others, was
'that finding altogether bad on account of its insuffi-
ciency as to some parts? Now he held it to be the
law, that where the finding is sood in the criminal
case upon one count of the indictment, and the sen-
tence authorised by law has been secured, such judg-
ment could not be revised on the ground that the
finding on the other counts were bad in law.
In civil actions, indeed, if some of the
counts were good, and some were bad, and
yet the jury found a general verdict on the
whole, that judgment would be reversed, and a writ
• of venire de novo would be issued, because the
damages would be assessed on the bad counts as well
as on the good, so that the Court could not say how
much damage was awarded on the good counts and
how much on the bad, in order to do justice to the
parties, and to ascertain how much damage the plain-
tiff had sustained. The verdict was uncertain in such

a case, as the count could not refer the damages, or
part of them, to the good counts or to the bad ones
separate from the others. That was the rule of law in
civil cases, but it had been always considered attended
with great inconvenience. In the case of Grant and
Assop, Lord Mansfield lamented that it had ever been
established; and, in another case, the same eminent
person drew a distinction between civil and criminal
cases upon this point, and laid it down that
the verdict in criminal cases should stand
good, even if it were found upon only one
good count.—(He referred to Cooper, 175.) That
decision of Lord Mansfield was lately confirmed in
the Court of Queen's Bench, when it was ruled that
if one count was good and others defective, that might
be taken to lessen the punishment, but it could not
arrest the judgment. In criminal cases the jury
have no other question but whether the accused be
guilty of the charge in the indictment, and they have
nothing to do whatever with awarding a personal
punishment or assessing a fine, which was the pro-
vince of the Judges only, whether the punishment was
fixed by statute or discretionary. Thus uncertainty
and confusion arose in civil suits because no
assessments of damages could occur in criminal cases
in which there was only one offence of which the
accused could be found guilty, and in which punish-
ment could be awarded, whether it was fixed or at
the discretion of the Judge. Therefore, in the nature
of the thing itself, he saw no reason or principle for which
the judgment in criminal cases should be reversed
by a writ of error, in consequence of some imperfection
in some counts. The practice of framing an indictment
on several counts was not known to the ancient law in
criminal cases, but it was well known that the intro-
duction of several counts was not for the purpose of
charging several crimes, but for the purpose of pro-
viding for the complexion which the case might as-
sume in evidence, and to prevent the escape of the
criminal on account of a misdescription. In the
case of a prosecution for cutting and maiming there
were now usually introduced two counts, the second
charging the accused with the less aggravated offence,
but the corpus delicti was the same. But if upon one
good count the defendant was found guilty and sen-
tenced to imprisonment with twelve months hard la-
bour,
which was a discretionary sentence, that
judgment would not be reversed, and the of-
fender be discharged from all punishment be-
cause one of the counts was irregular. In
that case the prosecutor was not allowed to have
his -election, as in a case of felony, but the trial might
prowed, and evidence might be opposed for the
several, offences distinct from each other. But the

consequences, as far as they related to the present once had taken place, and, therefore, he felt hound to
subject of inquiry, appeared to be the same both as answer that question in the negative. The Bth ques-
to the charge of felony and the charge of misdemea- tion put by their Lordships to the judges was, " Whe-
flour. The amount cf discretionary punishment as ther there was any sufficient ground to reverse or vary
pronounced by the Judge, whether it were for a single the judgment on account of the sentences, or any, or
offence, described differently in various counts of the either of them, passed on the respective defendants,
indictments, or divers and distinct misdemeanours regard been had particularly to the recognizances re-
charged in different counts, the discretionary punish- : quired, and to the period of imprisonment dependent
ment, as awarded by the Judge, stood in the place of ion the entering into such recognizances ?" Now,
the fixed punishment in the case of felony. A Court •on this question the Judges saw no ground for vary-
of Error had no more right to presume that any part I ing or reversing the judgment on account of the
of the discretionary punishment in cases of misde- 1 sentences pronounced. The defendants had, under
meanour was awarded, in respect of evi- their sentences, the power to enter into their recogrif •
dence contained in cases of felony, than they zances, and thereby shorten the term of their sentence,
had to presume that the fixed punishment given on a and it was to be presumed that at the time the Court
defective count was supported by a valid count. It passed judgment, it took care the defendants should
had been argued at their Lordships' bar, that all in- I have time enough to enter into their recognizances.
stances which hail been brought forward in support All the Judges concurred in agreeing, therefore, that
of the proposition that one good count would sup- , the Bth question must be answered in the negative.
port a general judgment on an indictment, The 9th question was, "Whether there was any suf-
were cases in which a motion for arrest ficient ground to reverse the judgment on account of
of judgment had been made, and not cases in the judgments in the assignments of error coram
which a writ of error had. een brought. This I nobis, or any or either of them, or of the matters
might be true, for as far as had been ascertained there stated in such assignments of error, or any or either
was no single instance in which a writ of error had of them ?" Now upon this question it was to
ever beeis brought to reverse a judgment on an in- be observed, that the error assigned in the writs
dictment on this ground of objection. But it was a were, with the exception of Steele's, the same. In
fair circumstance for refusal by the Court to arrest the case of Steele, however, the error assigned was
the judgment where such arrest was brought on the that the indictment was not properly found, because
ground of some defective counts appearing on the it had not been stated on the back of the bill by the
record, and assigning by the Court as a reason for sheriffs that the witnesses had been sworn. Now,
such refusal that one good count on which the judg- with respect to the error of fact alleged by all the
ment had been entered up afforded the strongest other traversers, the answer the judges returned to
argument that they thought the judgment which had their Lordships was this, that the- statute of Victoria,
been entered up was irreversable on a writ of error, in that re-pect, repealled the former one, and that the
fer such answer would not otherwise have been course pursued by the Court of Queen's Bench in
given. It would have had no other effect than Ireland, with respect to the swearing of witnesses,
to mislead the prosecutor if the Court had been was in accordance with the opinion of the judges.
sensible at the time the judgment was entered On this point they thought the decision of the Irish
up that it would afterwards be reversed on Judges was correct. From the preamble of the A ct,
a writ of error. This opinion was supported in refer- it might be expected that the alteration about to be
ence to the case, King v. Fuller, Ist Bosanquet enacted would be general, and without exception, and
and Fuller. It had been objected, however, on the the enacting words accordingly were, that in cases of
part of the plaintiffs in error, that if the judgment indictment where bills were to be laid before a grand
were allowed to stand whilst there remained defective jury in Ireland, the Clerk of the Crown at assizes, and
counts on the face of the record, it would expose the the Clerk of the Peace at the sessions, should make
defendants to some hardships and inconvenience : an indorsement thereon directly, to give this enactment
first, preventing them from availing themselves of the its full force that was to make it applicable to all cases,
judgment in the present indictment as a bar to a se• those particulars officers must be taken to be named
cond prosecution for the same offence; and secondly, only by way of example or instances, and not that the
the possible difficulty of availing themselves of a par- statute was applicable to those courts only, of which
don granted for an offence contained in one count of those persons were the proper officers. It would be a
the indictment. If he thought that those conse- novel mode of introducing a restriction in the words
quences would follow from holding the present judg- of a remedial Act, to confine it to those courts only.
ment irreversable, he would pause long before he The Clerk of the Peace at sessions and the Clerk of the
adopted the conclusion to which he had at present ar- Cross nat a,sizes held offices and performed duties an d-
rived. He could not, upon the best consideration which ag sus to each other, and that construction of the Act re-
he had been able to give to the subject, discover that ceived further confirmation from that part of it which
any such difficulty really existed. As to the plea referred to the oath, for the latter part of the statute
aulvefois convict, whatever form of judgment was declared that the foreman of the grand jury should
entered upon the first indictment, whether general on not have the power of examining witnesses on oath
all the counts of the indictment or special on the good whose names were not indorsed on the back of the
counts only, it was not a question which would in any indictment by the Clerk of the Crown, not the Clerk
way affect the defendants security. The question on Of the assizes. Upon a reasonable construction of
the plea autrefois convict would turn on the form of the statute, they thought that this ground of objection
the indictment in the two cases. It would be a ques- was answered. And as to the assignment of error in
tion of evidence only, whether the corpus delicti was facts assigned by Thomas Steele, it was founded
the same in both cases, for undoubtedly the former on a part of the Act which was direc-
conviction would be a valid conviction until reversed tory and not essential. He did not think
by a writ of error. As to the objection of a difficulty after a witness had been fully sworn and examined,
being thrown on the defendants with respect to evi- and a true bill returned on his evidence, that it would
dence contained in those counts which were con- deprive an Act of its legal operation that the foreman
fessedly valid and not extending to evidence on the had neglected to comply with certain of its directions.
other counts, it might be answered that no instance The ninth question they all concurred in agreeing
could be found of a pardon being granted after judg- that it must be answered in the negative. The tenth
ment, which did not recite the indictment and convic- question put was this—" Is thereany sufficient ground
tion. Indeed, in cases of felony the pardon would be for reversing the judgment by reason of its not con-
void without such recital, and if it was possible to sup- taming any entry as to the verdicts of acquittal ?"
pose a case to happen after such recital, that the Crown After a careful search made at the Crown-office, no
should pardon not the whole of an offence contained instance of such an entry could be found where a party
in an indictment, but the offence contained in a valid was found guilty of one part of the indictment
count only, there could be no doubt whatever that the on which he received judgment, and this practice
Court before whom such parties were brought to take they thought was in conformity with law, for it ap-
the benefit of the pardon would discharge them alto- peered from Lord Hale that an entry of acquittal
gether when nothing appeared excepting from the quod eat sine die might be entered for the defendant
pardon the officers described in counts which were even after a writ of error had been brought. They
not sustainable in law. He did not therefore see any were all of opinion, therefore, that the 10th question
objection to the judgment in the present case being was to be answered in the negative. Upon the 11 th
supported on the good counts in the indictment, and and last question upon which he was
on the good counts only. Certainly there was no delivering his opinion only, he had in
authority against that position, and the inference to answering the third question, anticipated those obser-
be drawn from the case of "Young and others v. vations which would otherwise apply. He had already
King," 2d Term Reports, was strong in support of .stated that the opinion at which they had already ar-
that doctrine, and if the judgment proceeded on the rived was, that a general judgment upon the whole
good counts only, the whole difficulty was ended. record was not to be reversed upon a writ of error by
On the third question, it was not necessary for reason of one or more counts being bad. He had also
him to trouble their Lordships at any length. stated his opinion that it would make no difference
The effect of a bad finding on a good that the punishment was discretionary. The only
count was in reality no finding at all. If the finding portions, therefore, to be considered was, whether
were not such as might be sufficient to connect the the entry on the record, being " that the defendants
defendants with the offence charged in any particular for the offences aforesaid be fined and imprisoned,"
count, the effect as to them would be the same as if was in itself a ground for reversing the judgment.
such count did not appear in the indictment. The That to which their attention bad been called to was,
bad finding on the good count and the good finding that the word should be that the defendant, " for
on the bad count appeared to him to stand on the same his offences as aforesaid," be fined and imprisoned.
footing with respect to the validity of the judgment The plain interpretation of these words was this—
as they did with respect to the whole record. There such offences as were set out in those counts of the
was no legal presumption that the judgment could indictment that were free from objection, and of
be arrested on one or the other, and for this reason he which the defendants had been found guilty by a pro-
offered it as his humble opinion, in answer to the third per finding of the jury. That was the offences in the
question, that there was no sufficient ground for re- sth, Gth, and all subsequent counts, and he saw no ob-
versing the judgment by reason of any defect in the jection to the word offences in the plural number.
indictment or finding. The fourth question lie did not think that, in poineof ltw, the words, as
P by their Lordships was, "Is there any suffi- they appeared in the record, formed a ground of oh-
cient grounds to reverse the judgment by reason of jection. He, therefore, thought that this question
the matters stated in the pleas in abatement, or any of also—but he offered it as his own humblenpinion—
them, or in the judgment upon such pleas ?" In was to be answered altogether in the negative.
answer to this question he had been requested by Mr. Ju•tice PATTESON, in delivering his judgment,
his brethren to say that they all agreed that the judg- said that there was no difference of opinion amongst
ment ought not to be reversed for the their Lordships, except with regard to the 3d and 11th
reasons stated in the plea of abatement. questions. The 3d question was whether there was any
In answer to that question it would sufficient ground for reversing the indictment by means
be unnecesaary to say more than that the law required of any defect in the indictment, or of the finding or
that a plea of abatement should be pleaded with cer- entering of the findings of the jury upon the said
tainty. This was laid down in " Coke upon Little- indictment. This question appeared to him to con,ist
ton.' As this was the rule in civil actions, at least of two parts—the first related to the consequence of
the same degree of precision and strict exactness was any defect in the indictment itself; the second to any
necessary in a plea of abatement in any proceedings defect in the finding of the jury on the trial. With
of the Crown. In the present case the plea failed regard to the first he would take the liberty
in many particulars. The names of the unsworn of answering it, together with the 11th ques-
witnesses, on which the plea was founded, tion, which he took to be in effect the same,
were not given in the plea. In the aver- for the only defect in the indictment was in the 6th
ment of that plea he did not find any and 9th counts, which were bad with regard to the
evidence of other witnesses who were sworn besides 2d question. He thought that the consequences of
those alleged to have been examined without being any defect in the findings of the jury were cured, so
sworn, and there was nothing to show that those far as they related to the 4th count, in consequence
witnesses were not allowed by law to give their evi- of entering a nolle prosequi with regard to one of the
dence or affirmation instead of an oath. The conse- defendants, the Rev. 111 r. Tierney. Lie did net think
quences, therefore, appeared to him to be bad. The there was any ground for reversing the indictment
fifth question proposed by their Lordehips was—" Is with regard to the Ist and 2,1 counts, by reason of any
there any sufficient ground for reversing the judg- defect in the findings with regard to those counts. Ile
ment on account of the continuing the trial in the apprehended it was competent to find the parties guilty
vacation, or of the order of the Court for that pur- of a conspiracy to do a part of a thing, and that there
pose ?" The facts upon which this question arose was no variance between such a finding and the count
were these, that the venire was returnable on the sth laid. This appears to have been the opinion held in
ofJanuary to be continued from day to day, that the case of the King v. Hallibany, 4 Barnewell and
being in Hilary Term. Before the arrival of that Cresswell. With regard to the other portions of the
day, however, the Court made an order that the issue finding on those counts, lie thought it might be re-
joined should be tried at the bar of the Court, jected as surplusage. He would now proceed to the
and it was understood that the trial should 3d count, with which he would connect the 11th
take place on the 15th of January, the day for which question, as lie thought they , were nearly identical.
the jury were summoned. On the 13th of January That question was whether, "in an indictment consist-
an order was made by the Court, which was in the ing of counts A, B, C, where the verdict is guilty of
following terms :—" That in case the trial, which is all generally, and the counts A, B are good and the
fixed for the 15th of January, should not terminate count Cis had, the judgment being that the defend-
on or before the 31st of January, that being the last ants, for the offeness aforeosid, be fined and imprisoned,
day of Hilary Term, then it shall be continued from which judgment would be sufficient in point of law,
the Ist of February and so on, day by day, until the is confined expressly to counts A and B, can
15th of April, or as many days thereafter as may be such judgment be reversed on a writ of error!
necessary for that purpose." The objection taken This was a question which would he likely to arisei
was, that this order was conditional only, and not for in many cases in the administration of criminal us-
an appointment, but for the continuation of the trial. rice. It seemed to be argued that they should act
The order, however, appeared to the Judges to be in criminal cases upon the practice which took place
clearly within the scope and meaning of the Ant, in civil cases, in which, if a verdict was given in a
and the power which was exercised by the Court was Court which was bad, the Court could not pronounce
well exercised. The statute warranted the Court in judgment in consequence of the uncertainty, and
appointii g such day or days as they should think fit. either there was an arrest of judgment, or upon the au-
The trial, therefore, had been very properly con- thetity of a late case there would be a venire de novo.
tinued in the vacation. The order was sufficient for In criminal proceedings the ver.dicstusevialsmerely guilty
that purpose, and by all her Majesty's Judges or not guilty, and there casesrri nothingc
this question was answered in the negative. enanigeus to an aesessmetiwt'aoaf datna e.. urt
The question, sixthly, put totheJudgeswas,"Whether formed . its own opinion. as tor_th. e judgment,gs.le and no
Phis reasening, there was any sufficient ground for reversing the uncertainty could arise. 1
But it
there-
judgment on account of the judgment of the Court fore, did not apply in criminal cases.
general_ principles the
overruling and disallowing the challenge to the array, .was contended that on
or any or either of them; or of the matters stated_ judgment must be held to apply to each count, and
such challenge ?" The answer to this questionl de- that the sentence must be held to be the aggregate of
pended upon•the principle on which the awvia.allsow•edseveral separate ,ententes,
.one to each count. This
the as the first instance in which such a notion had been
the challenge to the array. The principlethe presenet case mooted.w It had been the custom in criminal courts
indifferency of the Sheriff. Now, in
always to ass. p judgment as a whole. It was
there was no indifferency on the part of the Sheriff-
onl y one judgment. He was not aware
alleged, but it was said that the jury-book was not
o any case in which a writ of error had
made up according to the statute,. and that no less f -
was said
_been brought in any case of felony on the ground
than 79 names were omitted in the list. It
the list was illegally and fraudulendtlithratad.te out,
made
was n
thea e that one of the counts in the indictment was bad ;
the challenge of Mr. Steele asserste
allegeda 1.. against and in cases of misdemeanor such a case should
to his prejudice, but no fault was athe materials of the seldom arise, because where separate counts laid se-
Sheriff. Then it was said that parate offences, the prosecutor was generally put to
u j rv-book were improperly composed, but that was his election. The defendant might, indeed, be con-
no 'ground for the challenge of the array. If the de ' •
victed on separate counts, but the judgment was
ciency in the jury-book was allowed to be matter
of usuallypassed on such se orate classes of counts se-
challenge, the business of every assize would he 1 paratelyp but that was nopt always the case. If an
,
stopped. On the whole, all the Judges were agreed •
offence were stated in various ways in various counts,
that there was no ground for the objections taken, and the sentence was general, and it was the universal
i
their answer, therefore, to the question was in the ' 0 •that •such one good count
i
pinion, . in cases
negative.
would sustain ageneral sentence. In the time
_
The next question, the 7th, put to the Judges, was, iof Lord Mansfield, a motion had been made
g
"Whether there was sufficient grounds to reverse the'
judgment by reason of any defect in the entry of con-1 that the indictment contained one bad count,
inbut the
before the court in arrest ofjudgment, on the ground
tinuances from the said trial to the 15th day of April, I:
• regard being also had to the appearances of the defers- ' cases, the Court must have given its judgment.in it
, court had always declined to interfere. Now, those
Boots on the said last-named day ?" Now, with re- to this question, what was the case. Why a trial -rest of judgment, it did not decide if the count was
' general form, for as it did not admit the motion in ae.
had taken place in vacation that had commenced in ' bad or not. Nothing could be inferredfrom the man-
term, and it was said that that was not a ner in which judgment was passed at assizes. One
valid proceeding. Now the fact was, the statute pro-
vided for the continuance of a trial at bar, and in the cided that one count in an indictment on which judgment
!case had arisen in which the superior Court. had de-
present case it never could be said the cause had had been passed at the assizes was bad, but the court
'
ceased. The statute, by its own operation, continued did not recommend that the prisoner should be par-
the cause over to the following term—there was, in cloned, which it would have recommended if the fact
fact, a Parliamentary continuance of the cause. All of one count being bad was sufficient to vitiate the
the Judges concurred in opinion, that no discontinue j indictment. If the sentence was tuch as might be