Greaves' MSS. note on new trials and venire de novo. ments was that they were referred to them with the case by the crown; but it can hardly be maintained that that could make that lawful to be acted upon, which would otherwise be unlawful.

Then the court proceeded to show that the sheriff and his bailiffs are not like a party in a cause; but that really was not the point. The true question was, had the jury access to papers which might improperly bias their minds.

I now pass from A. G. v. Murphy. It is well next to consider the supposed authorities for saying that there can be no new trial in felony.-In R. v. Mawbey, 6 T. R. 619, four defendants were indicted for a conspiracy, and two of them acquitted and two convicted; and one question was whether a new trial could be granted as to the two that were convicted without the others; and it was contended for these defendants that a new trial ought to be granted wherever there would be a palpable defect of justice if it were not granted. On the part of the crown, cases were put to show that a new trial could not be granted in many cases, in which there might be a palpable failure of justice. Thus if a defendant, unquestionably guilty, were acquitted, the court could not grant a new trial. So also if a defendant be convicted of treason or felony, though against the weight of evidence, there is no instance of a motion for a new trial in such a case; but the judge passses sentence and respites execution till application can be made to the mercy of the crown. It is clear that this passage refers to cases of conviction on the crown side at the assizes, and not to cases tried at nisi prius on King's Bench records; for until the 11 G. 4 & 1 Wm. 4, c. 70, s. 9, sentence could not be passed on a conviction at nisi prius; and the hardship in so large a number of such cases was quite sufficient

Greaves' MSS. note on new trials and venire de novo.

for the argument on the part of the crown. Again the dictum merely asserts that no case of a new trial had been found where it had been moved for on the ground of the verdict being against the weight of evidence; which is a far narrower assertion than that no new trial could be granted in any case of felony; and very nearly amounts to an admission that, in some cases of felony, a new trial might he granted. Then Lord Kenyon, C. J., plainly referring to this dictum, said "in one class of offences indeed, those greater than misdemeanors, no new trial can be granted at all." This dictum must in all fairness be limited to the point put by the counsel for the crown; otherwise it is clearly too wide. This dictum, entirely separated from the context, has been cited in Corner's C. P. 161, and elsewhere as warranting the general proposition; and I will apply the dictum of Cockburn, C. J., in Winsor v. R., 14 L. T. 189, 10 Cox, 276, to it. "This loose dictum has been copied servilely by text writers into their books until it has come to be regarded as an authority." The only other case cited by Corner is Bright v. Eynon, 1 Burr. 390; but there is not a word as to a new trial in felony in that case. But this case and R. v. Mawbey are as strong authorities as possible that the court will not yield to the mere absence of precedent in opposition to the claims of justice; but will grant a new trial where the ends of justice cannot be attained without it. In a note, 13 East, 416, it is said "in capital cases at the assizes if a conviction take place upon insufficient evidence, the common course is to apply to the crown for a pardon"; but "I am not aware of any instance of a new trial granted in a capital case." The context shows that this means a case tried at the assizes.

In the same note, it is said that in Tinckler's Cuse, 1 East

Greaves' MSS. note on new trials and venire de novo.

P. C. 354, it seemed to be the opinion of the judges that a new trial could not be granted in felony. Neither in Eust nor in 1 Den. p. V. (preface) is anything of the sort mentioned; and it is difficult to see how such a point could have arisen. The prisoner was tried at Durham for murder; and a case was reserved as to the admissibility of certain dying declarations, and the judges held the conviction right. It is clear the judges could not grant a new trial; and, if any thing as to a new trial was mentioned, it was wholly extrajudicial, and all it could amount to was that where a case was tried on the crown side at the assizes, no new trial could be granted by any other court. The truth is that all that has been said on this subject refers to cases tried at the assizes or quarter sessions; and, as there are no means of bringing the facts before the Queen's Bench on error or by certiorari, of course that court cannot grant a new trial. The supposed general rule doubtless, originated with these ordinary cases at assizes and sessions; but, like other general rules, it is subject to the exception of the very rare cases in the Queen's Bench. The following cases of misdemeanor well illustrate the matter. In R. v. Oxfordshire, 13 East 411, the defendants were found guilty of the non-repair of a bridge at the assizes, and a motion was made for a certiorari to remove the indictment into the Queen's Bench in order to move for a new trial; but it was held that it could not be done, as the court could have no information as to the merits. R. v. Nichols, Ibid, note p. 412. So where the defendants were convicted at the quarter sessions for the non-repair of a bridge, the court at once refused to notice a case which had been reserved for their opinion. R. v. Salop, 13 East 95. Again, in R. v. Winsor, 14 L. T. 201, 10 Cox, 276, Blackburn, J.,

Greaves' MSS. note on new trials and venire de novo. said "a verdict may have been founded on circumstances against evidence; but that cannot be reviewed in a court of error, because the evidence upon which the jury decided the question of fact cannot be brought up to a court of error."

This remark was made with reference to a case of felony, and it is quite inconsistent with the supposition that there can be no new trial in any case of felony; for it was useless to draw such a distinction as to the facts being or not being before the court, if in no case could the court decide upon them.

But where a case is tried on a Queen's Bench record, the evidence is brought before the court in banco, and it can deal with it as it can in other cases tried on records of that Court. The distinction, therefore, is that the Court of Queen's Bench cannot grant a new trial either in misdemeanor or felony where the case has been tried on the crown side at the assizes or quarter sessions, because it cannot have the facts before it. But that it can grant a new trial in all cases of misdemeanor (whether on the merits or otherwise) where the trial is on a record of that court; and also, in all cases of felony so tried, for any formal defects; and it is maintained that it can do so also on the merits.

I now turn to a case which excited considerable notice at the time. The prisoner was charged with stealing the money of his mistress at Exeter, convicted and sentenced to 14 years' transportation; but this judgment was reversed on error. R. v, Ellis, 5 B. & C. 395. He was again indicted, and in consequence of the prejudice that existed. against him, the indictment was removed into the King's Bench, and he was tried at nisi prius by a jury of the County of Devon, and again convicted; and within the

Greaves' MSS. note on new trials and venire de novo. four first days of the next term a rule was applied for on the ground that evidence of other stealings besides those charged in the indictment had been improperly admitted; but the reports differ as to what the rule was. In 6 B. &C. 145, it is said to have been a "rule for staying the judgment.' In 9 D. & R. 176, it is said to have been " "a rule for a new trial;" and this is right; for I have ascertained, from the crown office, that that is the entry in the master's book. Lord Tenterden was present when the application was made, and heard the grounds of it stated, for he remarked upon them; but as no motion can be made in felony, unless the prisoner be present, the application was postponed until he was brought up for judgment on a subsequent day, when it was renewed and fully argued before Bayley, J. and Holroyd, J.,on the part of the prisoner, but the counsel for the crown was not heard. Here then we have a case of felony, in which a rule for a new trial was applied for, argued, and decided on the merits, and not a doubt suggested as to a new trial being grantable in felony; and it is clear that all these three great judges had no doubt on the subject, otherwise they never would have listened to the application or heard it solemnly argued; but would have instantly stopped the motion, as was done at once in R. v. Oxfordshire and R. v. Salop. This case occurred in 1826, when Lord Campbell and Cresswell, J., very probably were in court; the one then being in great business in that court, and the other, being joint reporter with Barnwall. This case clearly was a good precedent for R. v. Scaife, and it proves how unfounded is the statement in the judgment in R. v. Bertrand that no such application had ever been made before that case; and, as that erroneous supposition was the foundation of that