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"this case, under circumstances which are dis"tinguishable from those in Conway and Lynch v. Reg., he was, in my opinion, justified in discharging the jury. But even if he was not, "the discharge of the jury does not give to the prisoner a right to be discharged, because the "warrant of commitment continues in full force. "PATTESON, J.-This being an application for a writ of habeas corpus at common law, it is not grantable as a matter of course, but only upon "reasonable ground being shewn for it. Reason"able ground may be presumed to have been "shewn for granting the rule; and, upon the "Crown coming in and shewing cause, it is much "the same, as to the legal points, as if the writ "had issued, and a return had been made to it. "I agree with my Lord, that, to entitle the

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prisoner to be discharged, the custody must be "shewn to be illegal, and therefore that the origi"nal warrant of commitment is spent, and the "prisoner can no longer be detained legally. Now, there has been in this case no trial, resulting in a verdict, to establish either the guilt or innocence of the prisoner; and as I "understand there was no fresh commitment, "therefore she is properly in custody. Supposing "I saw great reason to doubt whether the judge

was right in discharging the jury, still the "prisoner is not in such illegal custody as to "justify her discharge. But I am of opinion "that there was nothing wrong in the course "pursued by the learned judge at the trial. The "facts of this case go further than those in Conway and Lynch v. Reg., in error, (7 Ir. Law "Rep. 149). The replication to the plea in that "" case shewed that the jury were discharged 'after "the lapse of much more than sufficient and rea"❝sonable time for enabling them to consider and

fully deliberate upon their verdict:' there was nothing more. Here the business at Shrewsbury was ended, and the judge had no more to "do than to take the verdict on the indictment

"against this prisoner. Either he must have "remained there till one of the jurors became "so ill that there was what is called an evident "necessity for discharging the jury, or he must "have taken the jury with him, either to the "border of the county, or, it may be, until the "close of the commission; in either of which " events the same question would have arisen, "viz., whether there was an evident necessity. "When the judge was called upon to go to the "next county to transact the business of the "assizes there, and the jury had remained in "deliberation so long that all hope of their agree

ing in a verdict was at an end, I cannot see what "other course he could have taken than that of "discharging the jury. If the discharge had "occurred at the beginning, or even at the mid"dle, of the assizes, and upon the notion that a "reasonable time had elapsed, this case would "have come within Conway and Lynch v, Reg. "But the additional fact, that the judge was "about to depart to the next county, brings it "within Rex v. Shields, (28 St. Tr. 619, 646, "647), where the jury, having been locked up "nearly twenty-four hours, were discharged, and "the prisoner was remanded for trial at the next "sitting of the commission; and, upon the trial "coming on at that sitting, the objection to the

legality of a second trial was mentioned; but "the prisoner was ultimately acquitted, and "therefore the point was not further discussed. "I am of opinion, that, in this as in that case, an evident necessity, which it is admitted is a "justification for discharging the jury, had arisen.

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"COLERIDGE, J.-I am of the same opinion. "It must be taken on the statement of counsel, "and on the affidavits, that the prisoner was com

mitted, by a warrant of justices, upon a charge "of felony, and therefore is excepted out of the "earlier sections of the Habeas Corpus Act, 31 "Car. 2, c. 2; and sufficient time has not elapsed "to bring her within sect. 7; and therefore this

"writ is issued at common law. In answer to "the rule there is a warrant of commitment, and, "unless something has occurred by which its "force is spent, the prisoner cannot be discharged. "It is said, that the circumstances under which "the jury were discharged do not amount to an "evident necessity. Those terms have been used "often, and by high authority; but, if they are "construed strictly, the authorities do not war"rant them in their full extent. The cases shew "that circumstances, not strictly amounting to "such necessity, justify the discharge of the jury. “I think that the true question in these cases is, 66 as it is laid down by Foster in Kinloch's case, "whether, all things considered, the judge who "presided at the trial exercised a proper discre❝tion in discharging the jury. The facts in this "case leave no doubt that there was reasonable "time for the jury to form their opinion upon "the guilt or innocence of the prisoner; and, upon their being brought into court on the "Friday morning, their difference was, according "to their own opinion, irreconcilable. That was

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"the last morning of the assizes at Shrewsbury, " and all the other business of the assizes there was finished, and the duty of the judge called "him to another county. It is, indeed, said, "that it was the duty of the judge to take the

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jury to the border of the county; but, if it be "conceded that he might have discharged them “there, it cannot be said to be an improper exer"cise of his discretion to discharge them without going through that form. This case is not af"fected by the decision of the judges of the Court "of Queen's Bench in Ireland: circumstances were wanting in that case which are present "here, and the absence of them was relied upon by some of those judges. Thinking, as I do, "that the discharge of the jury is matter of disIcretion, it is important that it should be open "to the discussion and review which it has re"ceived in this case.

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"ERLE, J.-I am also of opinion that the rule "should be discharged. The only question is, "what is the meaning of the terms 'evident "'necessity,' when the rule is laid down by "Foster, that the judge may discharge the jury "under certain circumstances, and that the dis"charging of the jury under such circumstances "will not operate so as to discharge the prisoner "from any future trial for the same offence. It

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appears to me that those terms do not import an "absolute inability to take any other course, but only need in a high degree to take that course; "and the judge is, in each case, to decide whether "the facts constitute such need. I doubt whether "the discretion of the judge is to be reviewed in "this way; but, if it is, I agree that the facts which "occurred in this case amounted to that degree of "need which affords a justification for the exercise "of his discretion.-Rule discharged.”

And now recurring to the Act of Council (14 Vict, No. 43,) that it was proposed more particularly to consider in this place, but from which the Compiler has digressed, in his desire to draw attention to the foregoing important decisions; it is only necessary to say, (having already referred to the remaining clauses in previous pages) (a) that by the clear construction of the fifteenth section it is peremptory, in all cases of summary jurisdiction, that the evidence shall be taken down in writing, inasmuch as all parties interested therein shall be entitled to demand and have copies of the depositions, on the same terms and in like manner as in cases of indictable offences. Whilst by section 16, the provision in that clause of the Imperial Act which relates to the admission, as evidence at the trial, of the depositions of any witness, for the prosecution, who, since his first examination has died, or is too ill to travel, is extended to the admission of the depositions of any witness, for the prisoner, who may happen to die before the

(a) s. 15, at p. xcvi; and s. 16, at p. xxvi

trial.

This admission, however, does not extend to invalid witnesses for the defence. (a)

The provisions of Sir John Jervis's Acts, as well as those of the Local Statute which adopts and applies them in this Colony, have now been as fully considered as the prescribed limits of this manual will allow. It had been contemplated by the Compiler to have entered, somewhat at length, into the law in respect to those great constitutional remedies for all manner of illegal confinement, the Habeas Corpus Acts; and also to have given a summary of the whole of the leading cases decided by the Court of Criminal Appeal since its establishment. These additions, however, were found to be incompatible with the original design of this work, and are therefore, for the present, postponed.

The Compiler has necessarily confined himself of riots. in his observations on the Administration of Jus- The duties of Magistrates. tice Acts, to those proceedings, ministerial as well as judicial, which they regulate and define; but in concluding his review of the duties of Magistrates within their Courts, he is induced to add a few remarks upon one important duty which they are sometimes called upon to perform without, and which, he regrets to say, recent experience in Sydney has shewn to be a duty upon which the property and even the lives of our citizens have been too frequently dependent This duty, which requires promptitude and activity, as well as personal courage, is that of quelling riots; and in its performance Magistrates are very properly armed with considerable authority. In order to assist them in quelling a riot, they are authorised to require (either by a personal, or written application to the officer in command) the immediate attendance of any body of military whieh may be quartered near at hand, in addition (a) Whilst the Bill was in Committee, it was proposed that the depositions of witnesses for the prisoner should be received, in cases of illness, in the same manner as those of witnesses for the Crown; but this amendment was rejected on the motion of the Attorney General