specified margin, such increase is to be deemed conclusive evidence of the grain having been trodden or forced together, and the Justices are thereupon to convict the maltster in the penalty imposed by the 7 & 8 Geo. 4. The mode adopted of returning the corn into the couch-frame is objected to, and it is said the officer is bound to return the grain in the manner usual at the passing of the 1 Vict. c. 49; but the practice of the Excise has been changed from time to time, which the Excise have a perfect right to do, and to return the grain into the couch-frame as loosely as possible, seeing that the law allows of no compression whatever, and all the statutes have left the mode of returning the grain undefined, and at the discretion of the officer.

Wilkins, Serj. (Marsh with him), for the defendant. The officer is to ascertain the increase by gauging the grain and not atmospheric air. The Justices are not concluded except upon evidence of an increase fairly found. The intention of the legislature was that it should be returned in a fair manner, the offence intended to be punished being a compression of the grain by treading or ramming it down. The act of 1 Vict. c. 49. passed ten years ago, and this mode of filling the couch-frame in cones was never adopted until two years back. It is a mode which is admitted on the evidence in the case to work more injuriously to the maltster as regards the penalty, and to the public as regards the duty, than any other which could be adopted. The previous practice in use when the act of Vict. passed, and to which it must be taken to be applicable, was to return the grain by throwing it equally all over the couch-frame, and not to place it in cones and so to inclose in it a large quantity of atmospheric air. Upon such a plan there cannot be an equal pressure all over the couch.

[ALDERSON, B.-If the object is to ascertain the increase, would not the fair mode of doing so be to return the grain in the same way as it was originally put in ?]

The jurisdiction of the Justices certainly cannot be restricted to the fact of an increase without any reference to the mode of ascertaining it.

Sir J. Jervis, in reply.-It is important to bear in mind the words of the act, on which the Court has to put a construction.

[ALDERSON, B.-The one party ought not so to fill the couch as to diminish, nor the other so as to increase should it not be fairly done by both ?]

It will be far safer to go by the words of the act. It is plain the officer, for the purpose of ascertaining the increase, is to do this, viz., to cause the grain to be thrown out of the couch-frame and to “return” it ; but the act does not say in the same way as it was put in originally; if it did, the officer must always be on the spot to see how it was put in. The true meaning of the act is, that if there is an increase beyond 5 per cent. the grain must have been compressed. It is a relieving clause to the party taxed.

66

[PARKE, B.-You read the act return at discretion," and then you say that under any mode of returning there is an ample indemnity.]

Yes; and if 5 per cent. is not a fair allowance they must obtain a further in

crease.

[PARKE, B.-The question is, does the act mean that the officer is to return the grain as he thinks fit? or does it mean in a fair way, or in the usual way? In the two latter cases the Magistrates must decide.]

Cur. adv. vult.

POLLOCK, C.B.-In this case the question turns upon the true construction of the 5th section of the 1 Vict. c. 49. That section contains this enactment [His Lordship read it and continued]. Upon information before the Magistrates there was a conviction under the authority of the statute 7 & 8 Geo. 4. c. 52. s. 33; and upon appeal to the Quarter Sessions there was a case reserved for the opinion of this Court. That case was merely, whether, if an officer of Excise, in order to ascertain the amount of increase in the gauge of the grain in the couch-frame, return it into the couch-frame by placing the grain in the form of a cone in the couchframe, instead of by casting the grain equally over the floor of the couch-frame, and thereby obtain more than the allowed increase, such increase so obtained is conclusive evidence under this act of parliament of the offence to which the penalty is attached by the 7 & 8 Geo. 4. c. 52. That is the express form of the case; but, in other

words, the question submitted to us was, whether, upon the evidence before the Magistrates, the conviction was proper. It was argued that because the exciseman had, in obedience to a previous order of the commissioners, that there was to be one uniform mode of proceeding returned the grain into the couch-frame, piling it up in the centre in the form of a cone, and then distributing it equally to all parts of the couch-frame, the conviction could not be sustained, and that that mode of proceeding ought not to be conclusive. With

out saying what would have been the result if it had been found as a fact before us, that the mode adopted by the exciseman was an improper mode, or without saying what would be the result if any other facts had been found than those which are before us, we are of opinion that this evidence is to be deemed conclusive, and that the course the exciseman has taken has been literally within the act in returning the grain or corn into the couch-frame, and that thereupon an increase has been found within the meaning of the act of parliament. It was argued, on the part of the defendant, that this was a mode of returning the grain which was calculated to work more injuriously to the maltster with reference to the penalty, and more injuriously to the public with respect to the duty, than any other mode of proceeding. Upon examining the evidence we cannot discover that that is made out, nor do we think it certain, if it were so (unless it should appear that the mode of proceeding was entirely improper), that any other conclusion could be arrived at. Certainly there is no evidence that can lead us to the conclusion that the mode adopted by the exciseman was an improper mode. It was argued, that one way of putting the question was, whether this section was to be read as if the officer was to return it in such a manner as he might think fit, or whether the statute was to be read, he shall return it in such manner as is now in use? We are disposed to think that that is not the proper mode of looking at the question; we are not to construe the act by putting either of those modes into it. It may be that the mode adopted by the Excise is not altogether the correct way; it may be that the act of parliament is not confined to those methods which were in use at the

time the act passed; but we think it is clear that the Excise officer has some discretion to exercise upon the subject, and that in the particular case before us it does not appear that he exercised any improper discretion, or that he adopted a course not calculated to do justice between the subject and the Crown. We think, therefore, that the conviction must be affirmed.

ROLFE, B.-We do not mean to say that the Excise officer may not have an absolute discretion.

POLLOCK, C.B.-It is unnecessary to go into that.

1847. June 12.

Witness

Conviction affirmed.

Interrogatories 1 Will. 4.

c. 22.-" Action depending."

A criminal information is not an action depending within 1 Will. 4. c. 22; and an order for the examination of a witness on interrogatories will not be made in such a

matter.

In this case a rule had been made absolute for a criminal information against a parish for the non-repair of a road (1).

Pashley, on a former day, applied for a rule nisi, for the examination of a witness resident in Gloucestershire, on interrogatories, under 1 Will. 4. c. 22. s. 4. The question is, whether a criminal information is a matter which falls within the provisions of that act. The statute undoubtedly primá facie might be construed as applying to actions, properly so called, but it has been extended to issues out of Chancery-Bordeaux v. Rowe (2); and by section 1. it is manifest that the object of the statute was to procure the examination of witnesses whenever it will be conducive to the due administration of justice in the matter wherein such writ shall be applied for.

[PATTESON, J.-The 1st section only applies to the colonies; if you would extend that section to matters depending in

(1) 16 Law J. Rep. (N.s.) M.C. 84. (2) 1 Bing. N.C. 721.

England, the 4th section would be wholly unnecessary.]

Then, taking the letter of the statute, it comes to this, what is the meaning of the terms "action depending"? It is true that in King v. Simmonds (3) it was decided that error did not lie on an issue under the Interpleader Act, 1 & 2 Will. 4. c. 58.

[ERLE, J.-In The Queen v. Wood (4) and The Attorney General v. Bovet (5), it was held that the statute did not apply to informations at the suit of the Crown.]

The Queen v. Wood was decided on the ground that the Crown was not bound, not being expressly named. The Attorney General v. Reilly (6) is the only case in which a similar application appears to have been made on the part of the Crown, and there the application was granted. In the older cases the Court used to procure the consent of the opposite party by granting a rule to stay the proceedings unless such consent were given; this was done by Lord Mansfield in Mostyn v. Fabrigas (7).

[ERLE, J.-That would seem to shew that the Court was well aware that it had no authority to grant a commission.]

But even the consent of the parties would not have given the commissioner power to administer an oath. In Warren Hastings's case, as mentioned by Lord Ellenborough in The King v. Morphew (8), a witness who could not attend at the trial was, by consent, examined on interrogatories. In Macaulay v. Shackell (9), a commission was granted to examine witnesses abroad in an action of libel; and at common law the Court has power to issue a commission for their own information. And if the question depends on the precise wording of the statute, the word "action" should be taken in its largest sense, the present being substantially a civil proceeding, just as a quo warranto-The King v. Francis (10); and

in a case of this nature the Court would stay proceedings so as to give the Crown in effect a new trial-The King v. Wandsworth (11), The King v. Sutton (12).

LORD DENMAN, C.J.-It appears to me that the Court cannot at common law make an order for the examination of the witness.

The statute on which we are called upon to act omits the word "information," and I think the power can only exist under this act. There is great reason for drawing a distinction between the Crown contending with a subject and two subjects contending between themselves; it would otherwise produce great inconvenience.

PATTESON, J.-There is an utter absence of all authority to do this at common law; and we are therefore driven to the statute, and very early there are express decisions that an information is not within the statute.

ERLE, J.-It is clear there is a reason for not admitting the evidence to be taken on interrogatories in criminal proceedings, where the accused party ought always to have an opportunity of seeing the witnesses brought against him.

Rule refused.

[See The Attorney General v. Davison, M'Clel. & You. 160; The King v. the Inhabitants of Ravenstone, 5 Term Rep. 373; The King v. Lady Briscoe, 1 Dowl. P.C. 520.]

1847. THE QUEEN v. REUBEN HUNT, AND ANOTHER. July 1, 7.

Central Criminal Court-Venue-Indictment-Certiorari-Jurisdiction.

An indictment, preferred and found at the Central Criminal Court, described the defendants as late of the parish of M., in the county of Middlesex, and alleged the offence to have been committed at the parish aforesaid, in the county aforesaid, and within the jurisdiction aforesaid. This indictment was removed by certiorari, before the passing of the statute 9 & 10 Vict. c. 24, and was tried in this court by a Middlesex jury :

(11) 1 B. & Ald. 63.

(12) 5 B. & Ad. 52; s. c. 2 Law J. Rep. (N.s.) M.C. 75.

Held, that the bill, having been found by a competent authority, and shewing an offence committed in Middlesex, was properly tried in Middlesex by a jury of that county.

The first count of the indictment charged that the defendants, (all being described as late of the parish of St. Marylebone, in the county of Middlesex,) intending to defraud Thomas Rogers of his money, on &c., with force and arms, in the parish aforesaid, in the county aforesaid, and within the jurisdiction of the Central Criminal Court, wickedly, &c., did conspire, &c., to cheat and defraud the said T. Rogers of a large sum, to wit, &c., of the monies of the said T. Rogers, under colour and pretence of a lawful claim against the said T. Rogers, and by bringing a false and unfounded action at law against the said T. Rogers, for the recovery of the said pretended claim by process of law; and that in pursuance, &c., at the parish aforesaid, &c., they did fraudulently, and without any reasonable or probable cause, commence an action on promises in the Court of Exchequer, against the said T. Rogers, for the recovery of the amount of the aforesaid sum, and prosecuted the said action; and that, afterwards, the said action came on to be tried, before the Judges "appointed to take the assizes for the county of Surrey," when the cause was referred to arbitration. The indictment then set out certain statements, made by Hunt, and the other defendants, before the arbitrator, which were alleged to be false. The second count charged that the defendants afterwards, to wit, on &c., with force and arms, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said Court, did conspire, &c. falsely to charge the said T. Rogers with having then lately before committed wilful and corrupt perjury; setting out overt acts, the sending a bill before the grand jury of the Central Criminal Court, which was returned a true bill. The third count charged that the defendants, on &c., with force and arms, at the parish aforesaid, in the county aforesaid, and within &c., did conspire, &c., to obtain from the said T. Rogers divers large sums of money of the monies of the said T. Rogers. Fourth count, that the defendants, afterwards, to wit, on &c., at the parish aforesaid, in the county aforesaid, and within

This indictment was moved by certiorari into this court, and was tried, before Lord Denman, C.J., at the sittings at Westminster, after Hilary term 1846, when the defendants were convicted. In Easter term

Shee, Serj. moved for a rule nisi to arrest the judgment.-First, there has been a mistrial. A jury of the county of Middlesex cannot try an indictment preferred and found at the Central Criminal Court. That court includes portions of counties in addition to Middlesex; and the petty jury and grand jury should come from the same parts 4 & 5 Will. 4. c. 36. s. 5, The Queen v. Stowell (1). This indictment was preferred before the passing of the statute 9 & 10 Vict. c. 24, the 3rd section of which provides that "every writ of certiorari for removing an indictment from the Central Criminal Court shall specify the county or jurisdiction in which the same shall be tried, and a jury shall be summoned, and the trial proceed in the same manner in all respects as if the indictment had been originally preferred in the same county or jurisdiction." The enactment itself is a legislative declaration that some such provision was necessary to enable a petty jury of Middlesex to try the case- -The Queen v. Stowell, The Queen v. Lord Ashburton (2). Secondly, in the second and third and last counts the offence is charged to have been committed in the "county aforesaid." If that has any meaning at all, it refers to the county of Surrey, which is the last county mentioned, and it is therefore insensible-Ogle's case (3), The Queen v. Rhodes (4), The Queen v. Kilderby (5), Child's case (6). Nothing is to be taken by intendment in such a case- -Elnor's case (7), Hamond v. the Queen (8).

Peacock obtained a similar rule on behalf of the other defendants.

Prentice (with whom were Cockburn and Montagu Chambers), on a former day, shewed cause.-First, as to the sufficiency of the indictment, it is said that the bringing of an unfounded action is no offence. To this the answer is, that the gist of the offence is the conspiracy-2 Russ. Cr. L. 674, The King v. the Journeymen Tailors of Cambridge (9), The King v. Turner (10), The Queen v. Eccles (11).

[LORD DENMAN, C.J.-There is nothing in the objection. It would be rather singular, if the circumstance of the action being unfounded would purge the offence.]

Then, secondly, it is said, that the venue is not sufficiently stated in the second and third counts; but though the county of Surrey is mentioned, only one parish is mentioned, which is Marylebone in the county of Middlesex, to which the allegation" in the county aforesaid" cannot apply. And the indictment will be read in the only way to make it intelligible-The King v. Wright (12), The King v. Countesthorpe (13), Sheen v. Rickie (14). If this be so, then, lastly, The Queen v. Gregory (15) and The Queen v. Albert (16) are distinct authorities that the allegation "in the county aforesaid" will, if it be referred to the county of Middlesex, give the Middlesex jury jurisdiction to try the indictment found at the Central Criminal Court.

Peacock, contrà.-Admitting that the words "parish aforesaid," in the county aforesaid, refer to the parish of Marylebone in the county of Middlesex, still, there is nothing shewn on the face of the indictment to enable the petty jury of the county of Middlesex to try an indictment preferred and found before the grand jury of the Central Criminal Court. The Queen v. Stowell in effect decides this. The grand (9) 8 Mod. 11.

(10) 13 East, 231.

(11) 1 Leach, C.C. 274.

(12) 1 Ad. & El. 433; s. c. 3 Law J. Rep. (N.s.) Exch. 370.

(13) 2 B. & Ad. 487; s. c. 9 Law J. Rep. M.C. 77.

(14) 5 Mee. & Wels. 175; s. c. 8 Law J. Rep. (N.S.) Exch. 217.

(15) 7 Q.B. Rep. 274; s.c. 14 Law J. Rep. (N.S.) M.C. 82.

(16) 5 Ibid. 37; s.c. 12 Law J. Rep. (N.s.) M.C.

117.

jury for the Central Criminal Court are summoned not from Middlesex or Surrey, but from a certain number of counties and parts of counties which have, by the stat. 4 & 5 Will. 4. c. 36, a jurisdiction over the district which is marked out by the act. For this purpose, that district may be considered as a county. And as the parish is immaterial when the offence in ordinary cases is laid and tried in a particular county, so here, the county is immaterial when the offence is laid within the particular district. petty jury should be a mixed jury from all the counties within the Central Criminal Court jurisdiction, in cases moved by certiorari as well as others, unless an order is obtained when the certiorari is applied for, to try the case in a particular county.

The

[COLERIDGE, J.-The ground of decision in The Queen v. Stowell was, that there were no words whatever in the indictment to shew that, though in fact tried in Middlesex, it might not just as well have been tried in Surrey or London.]

[LORD DENMAN, C.J. The question really is as to the construction of the indictment.]

[COLERIDGE, J.-Suppose you struck out the county named in the indictment.]

Then the case would be the same as The Queen v. Stowell; and the words "in the county aforesaid" do not help, if there is no venue laid to give jurisdiction.

[ERLE, J.-Do you contend, that you cannot so describe the offence in the body of the indictment as having been committed in Middlesex, so as to give a Middlesex jury jurisdiction to try it?]

Yes; the argument on the other side must go the length of establishing that by the mere circumstance of the removal by certiorari an allegation before immaterial is made material. The jurisdiction of the petty jury of the Central Criminal Court arises from the grand jury of that court having found the bill. The particular county, supposing it within the district, is immaterial. Great difficulties might arise under the plea of autrefois acquit, if an indictment might be tried in any of the counties named in the act.

[PATTESON, J.-In cases of a plea of autrefois acquit the only question would be. the identity of the offence.]

A prisoner might be acquitted if tried