OTHERS v. 1884. NALLY AND and not a felony. A new trial does, however, lie in the case of a misdemeanour, but only when the case is in the Queen's Bench, THE QUEEN. or has been removed there by a certiorari. When the indictment has been found, and the trial takes place at the assizes, even in the case of a misdemeanour there is no way of obtaining a new Certiorari- trial except in the case of a mistrial: (Archbold's Crim. Pract. Conviction in 18th edit. 190.) The only modification introduced is that in the Superior last case before the Privy Council (R. v. Murphy, L. Rep. Court. 2 P. C. 535), it was held that the misconduct of the jury was not a sufficient ground for granting a venire de novo. I do not seek a new trial, but a venire de novo. The difference between a new trial and a venire de novo is stated by Serjeant Manning in a note to Gould v. Oliver (2 M. & Gr. 238). I do not seek it on the ground of misconduct by the jury, nor of irregularity, but on the ground that the jury who tried the prisoners had no jurisdiction to try them. Counsel referred to Charlotte Winsor v. The Queen (L. Rep. 1 Q. B. 289), Reg. v. Poole (14 Ir. L. Rep. 14), and to 2 Hale's Pleas of the Crown, 308. When something has occurred at the trial which would vitiate the trial, and it does not appear on the record, it may be added to the record by this court. The judge who tried this case had been asked to reserve the points, but had refused, and the Attorney-General was asked for his fiat for a writ of error, but he also refused to give it. A venire de novo can only be obtained upon something appearing on the record: (R. v. Gray, 6 Ir. L. Rep. 259; R. v. Scaife, 17 Q. B. 238.) On the seventh, eighth, and ninth counts only one person was found guilty on each, and therefore the other prisoners are practically found not to have conspired with them on these counts. The order of the 19th day of July, 1882, requires that in the case of two counties there must be 200 jurors summoned, returned, and impannelled. The orders are mandatory (R. v. Loxdale, 1 Burr, 445; Howard v. Bodington, 2 Prob. Div. 203, 213; Frost's case, in the authorised report by Messrs. Girney.) It is not sufficient for the sheriff to go to the jurors' book and summon the proper number from it. Those summoned must be all living. The ordinary code applies to the proceedings under this Act, except where this Act cuts in and alters it: (O'Brien v. The Queen, 1 Ir. Jur. O. S. 169; 2 H. of L. Cas. 465.) We took the objection at the earliest opportunity, and before the jury were sworn. The taking away of the right to challenge the array only applies to cases where the sheriff has a right to summon whatever he considers sufficient, but it cannot apply to a case like this, where all the sheriff's discretion has been taken away. The Attorney-General (Naish, Q.C.), Serjeant O'Brien and Thomas Wall for the Crown.-The application for a certiorari judgment having been entered up in this case is without preccdent, and all the authorities have established that the court has no jurisdiction to grant it. A case of this kind should be established on the authorities. No sufficient reason has been shown OTHERS 1884. Conviction in Certiorari why the certiorari and the consequential remedies which are NALLY AND claimed should be granted. without precedent; it is one of first impression, and if granted THE QUEEN. This application is completely would be fraught with the greatest danger to the administration. of the criminal law. It might be used as a precedent in all cases of misdemeanour tried at the assizes. Once a verdict has been given and judgment entered upon it, certiorari does not lie and the court has no power to direct that a writ of certiorari should issue. In Corner's Crown Pract., page 53, it is stated that "an indictment may be removed by certiorari at any time before the jury is sworn for the trial, and under very special circumstances the court will grant a certiorari to remove an indictment with the record of conviction thereon after verdict and before final judgment, although as a general practice this has been strongly discouraged by the court; but the writ is never granted with a view to set aside a verdict, and grant a new trial." The law as laid down there has never been questioned, and there are a great number of cases in which it has been recognised. Where the judgment has been given and entered on the record the proceeding can only be by writ of error; the court has no power to interfere by way of certiorari, and remove the proceedings here. [Counsel referred to R. v. Oxford (13 East, 410), R. v. Seton (7 T. R. 373), R. v. Whiston (2 Dowl. N. S. 408), R. v. Lucas (2 Fox & Sm. 30), R. v. Scaife (17 Q. B. 238), R. v. Mary McMahon (Ir. Rep. 9 C. L. 309), R. v. Winsor (L. Rep. 1 Q. B. 390; 1 Hayes Crim. Law, 123). The issue paper is no part of the record and cannot be put on the record (R. v. Grogan, 1 Cr. and Dix. 189).] There was only one conspiracy given in evidence. The several jury acts in this country are to be read with the Prevention of Crimes Act, 1882, except where it is inconsistent with them. Teeling in reply.-Unless it is clear from the authorities that this court has not the jurisdiction to grant a certiorari in the case of a mis trial, I am at liberty to assume that it has such a jurisdiction. We could not have raised the question as to the jury panel not being right by refusing to plead because we had already pleaded at the winter assizes. MAY, C.J.-The court have heard this case very fully argued, and are quite unanimous in the opinion that a writ of certiorari ought not to be issued. Upon the part of the Crown, authorities both in England and Ireland have been cited, proving conclusively that where judgment has been entered up in the Superior Courts the right to a certiorari to remove the record does not exist. The party complaining must resort to a writ of error. In the present case, after judgment in a criminal case of a very serious character, the court is asked to issue a certiorari in order to review the proceedings in the court which culminated in the judgment. No authority has been cited tending to cast a doubt on the authorities which have been referred to on the part of the Crown, and the court has no choice, but can only refuse the application. We are informed that an application was made VOL. XV. TT OTHERS v. NALLY AND to the Attorney-General to sanction a writ of error; on his declining to do so this motion was made, which is clearly specuTHE QUEEN. lative. We can have no doubt that had any solid grounds been put forward in support of an appeal the writ of error would have been allowed. 1884. Certiorari Superior Court. LAWSON, J.-I wish to state my opinion as to the form and Conviction in merits of this application. When the matter first came before us it was stated to be an application for a certiorari. I was greatly surprised at this. The motion came upon me as a novelty, and I thought there was not a tyro at the bar or even a law student attending lectures who, if asked the question, would not answer that after conviction and judgment no certiorari would lie. It does not, in my opinion, need much authority to prove that after judgment the only mode of proceeding is by writ of error. It is said the Attorney-General has refused a writ of error, but it has been solemnly decided that the Attorney-General exercises a judicial discretion in granting or refusing a writ of error, and is bound to refuse the writ if he considers the reasons urged for it frivolous. I remember when I was Attorney-General in one instance I refused to grant the writ for that reason, but my successor afterwards granted the writ; but when the case came before the House of Lords I was one of the counsel for the Crown, and we were not called on, the grounds were so frivolous. Therefore when the Attorney-General refuses to grant a writ of error we may be satisfied that the Attorney-General considers the reasons assigned for granting it are frivolous. In my opinion all the reasons given in this case for reviewing the proceedings are frivolous. The question of challenge to the array, and the suggestion that on the sheriff should be imposed the duty of seeing after the fact that those whom he is about to summon on the panel are all living, amounts in my opinion to an actual absurdity. I said so at the time of the trial, and overruled the challenge. The second point is one of which I never heard anything like it; spelling out a special demurrer to the manner in which the Clerk of the Crown takes down upon a paper for his own convenience the questions submitted to the jury. I think the verdict was rightly entered in the Crown book; the case was one of conspiracy, and I explained the law to the jury, who deliberated a long time, and found a verdict to my entire satisfaction, and I am quite certain there was no misleading of the jury, and that there are no grounds either in form or substance for this motion. O'BRIEN, J. concurred. JOHNSON, J.-I should not have added anything were it not for the reference which has been made at the bar to Poole's case (14 L. Rep. Ir. 14) as an authority for the present application. I agree that this motion for a certiorari ought to be refused on the ground that it is made after verdict and judgment. I offer no opinion whatever on the validity of the objections now argued against these convictions, because, in my opinion, the proper way to raise those objections (if at all) is by writ of error. It is stated NALLY AND OTHERS v. 1884. at the bar that the Attorney-General has been applied to, and, after full consideration, has refused to grant his fiat for a writ of THE QUEEN. error; but if so, it is decided by Ex parte Newton (4 El. & Bl. 869) that such refusal by the Attorney-General is a judicial act on his part which this court has no authority to review: on him Certiorarithe law casts the responsibility in this matter. In Poole's case Conviction in (14 L. Rep. Ir. 14), notwithstanding that I invited the attention Superior Court. of counsel to the question whether an application for certiorari was the proper course in that case, the counsel on both sides passed by that question and addressed their arguments entirely to the merits of the application. That motion for a certiorari was refused, but in giving my reasons for concurring with my brother Lawson, I pointed out (and I believe with the approbation of my learned brother) that the usual and ordinary course would have been to proceed in that case by writ of error, and, therefore, that if I had entertained any doubt upon the case made for the prisoner, I should have hesitated before granting a certiorari, but that as I entertained no doubt I concurred that the motion for certiorari ought to be refused. Poole's case, therefore, is not an authority for the present application. Solicitor for the Crown, A. Morphy. Solicitor for the prisoners, M. J. Hogan. Freland. EXCHEQUER DIVISION. April 18 and 21, 1884. (Before DowsE, B. and ANDREws, J.) THE GUARDIANS OF THE ENNISKILLEN UNION (complainants) v. Adulteration of food-Notice of intention to submit to analysis— (a) Reported by JONES H. STAVELEY, Esq., Barrister-at-Law. THE GUARDIANS OF THE ENNISKILLEN UNION V. HILLIARD. 1884. Adulteration of food Notice of intention to submit to analysis-Con Act by the persons mentioned in sect. 13 of the Act, and to proceedings by persons who at the time of making a purchase intend to submit the article purchased to analysis. Upon the supply of articles, in pursuance of a general contract to supply, there cannot be an intention on the part of the person to whom the articles are supplied, to submit those articles to analysis within sect. 14. And the fact that an article, for the sale of which a person is prosecuted under the Act, was supplied in pursuance of a contract, is immaterial. Corporations aggregate are "purchasers" within the meaning of the sale of Food and Drugs Acts. tract to supply Parsons v. The Birmingham Dairy Company (9 Q. B. Div. 172) ---Corporation. not followed. CASE NASE stated by justices for the opinion of the Court under 20 & 21 Vict. c. 43, from which the following facts appeared : At a petty sessions holden in and for the Petty Sessions District of Enniskillen, county of Fermanagh, on the 3rd day of March, 1884, before certain of the justices of the peace for the county, Noble Hilliard was charged in and by a certain summons for "That the defendant did, at the workhouse, Cornagrade, Enniskillen, in the county of Fermanagh, on the 11th day of February, 1884, sell, to the prejudice of the guardians of the poor of the Enniskillen Union, a quantity of buttermilk, being food within the meaning of the 6th section of 38 & 39 Vict. c. 63, as amended by the 3rd section of the 42 & 43 Vict. c. 30, which said food was not of the nature, substance, or quality of the article demanded by the said guardians of the poor," and ordered to pay a fine of 21. and costs. At the hearing of the said complaint it was proved on the part of the complainants that Alex. Price, the master of the Enniskillen workhouse, upon the morning of the 11th day of February, 1884, took from a vessel of buttermilk which the defendant's servant was at the time in the act of delivering to Alex. Price, who was acting on behalf of the complainants (and which buttermilk defendant was delivering pursuant to a contract for the sale thereof to the complainants), a portion of the buttermilk which said Alex. Price thereupon informed the servant of the defendant he was taking for the purpose of analysis. That the said Alex. Price thereupon, in the presence of the defendant's servant, divided the said portion of milk into three parts, which he put into and sealed in three separate bottles, which he also labelled with the name of the defendant, and with the date of delivery, one of which he thereupon delivered to the servant of the defendant, the receipt of which was admitted by the defendant, one of which bottles he retained himself (and produced before us in court sealed and labelled), and the third bottle he forwarded to Professor Cameron, analyst for the said county, in a sealed box, by rail. The receipt of the railway company for the box con |