1793.

The KING against

JOHN

to the act of Parliament, on which this conviction is founded, I think we should construe it equitably, so as that it may answer the purposes of public convenience, taking care at the same time that Sunday should not be profaned. It was extremely wise to put a YOUNGER. mark on that day; by observing it, Christianity may be kept alive. I agree with Mr. J. Foster (a), that I am for an observation of the Sabbath, but not for a Pharisaical observation of it. But must the laborious part of the Community, who are entitled to some indulgence for the labours of the past week, fare harder on that than on any other day? They must be fed on that day; many of them have not the means of dressing their dinners at home; and those, who have, will, if this defendant be convicted, be prevented observing the Sabbath. That day will (I think) be better observed if the construction put upon this law in R. v. Cox be now adopted, than if we over-rule that determination, and adjudge this to be an offence. That decision falls within the reason of the law, and I am glad to find that it is an authority for us at present. The other case cited, Crepps v. Durden, is clearly distinguishable from this.

ASHHURST, J.-It seems to me that the construction put upon this act in R. v. Cox is the right one; the case of bakers, though not particularly mentioned in the exception of the act, is within the reason of it. Though by this means some few journeymen bakers are kept to work on a Sunday, it is for the general convenience of the Public, because it enables the rest of the Community to attend public worship, which they could not have an opportunity of doing if they had no means of having their dinners dressed from home. As to this conviction in particular, it strikes me in the same way it did my Lord; it appears to be a collusive transaction; for the defendant is induced to give evidence against himself, and the witness is stated to have put questions of law to him, apparently for the purpose of negativing the exception in the statute, that this was a work of charity or necessity.

BULLER, J.-The case of Crepps v. Durden does not apply to the present. The baking of bread in the ordinary course of a baker's business is undoubtedly an offence under the act; and it was too much to suppose that the Court would not in that case determine that baking rolls was not equally so. I argued that case; I barely alluded to the case of R. v. Cox, and did not call on the Court to decide this question; there the principal question was whether the plaintiff could be convicted in more than one penalty on the same day. Then this case must be de

The KING against JOHN YOUNGER.

1793. termined on the words of the statute, and the case of R. v. Cor. The words of the act are vague and indefinite; and if I were now called upon for the first time to expound the different parts of this law, I should be under considerable difficulties in draw ing any precise certain line. First, there is an exception as to works of necessity and charity; then there is a proviso that the act shall not extend to cooks' shops, or victualling houses, for such as otherwise cannot be provided: but these expressions are extremely loose, and no certain line can be drawn, as a pure question of law. We find one solemn determination on these doubtful expressions in the statute; and as that construction has since prevailed, there is no reason why we should now put another construction on the act, on account of any supposed change of convenience as far as respects the journeymen bakers. If that construction be inconvenient, it is the business of the Legislature, and not of this Court, to remedy it. We, as Judges, are bound to adhere to the former decision.

GROSE, J.-The question is not whether baking for this or that man be a trade, but whether the trade of baking, carried on in this way, be a work of labour prohibited by the statute. The crime imputed to the defendant is the having baked dinners on a Sunday. There cannot be any distinction between dressing dinners for the poor and the rich, as far as respects the baker: It is admitted that dinners for the former may be dressed; then is it to be endured that it would be no crime to bake for a man who is too poor to bake at home, and yet that the baker must be convicted on a penal law for baking for another person, who happens to be able to bake at home, a circumstance of which the baker cannot be cognizant? This case therefore seems to me to come within the proviso relative to cooks' shops. But even if the words of the act were more doubtful, as we find a case which was determined in the year 1759 applicable to the present, and which decision, so far from having been over-ruled, Las been acted upon since that time, we ought not to overturn that decision, especially as the case arises upon a penal statute. Per Curiam, Conviction quashed.

The KING against Penny, and Two Others.

1793.

+ 367-7743.0.P

Monday,

Montague o Smith. 21. L. f. 25, B.73 Nov. 2011.

If, after a

has been

struck, the

cause goes

fault of ju

rors, no new

Jury can be
struck; but

the cause
tried by the

must be

N Hilary Term last an information was filed by the Attorney General against the defendants for a libel, to which specialty they pleaded not guilty in Trinity Term. In the same term a special Jury was struck, but for the default of jurors at the Sit-off for detings after Trinity Term the information was not tried. A rule having been since obtained for striking a new special Jury, Erskine, on a former day, moved to discharge it, on the ground that after a special Jury had been once struck, that Jury alone, or as many of them as appeared when the cause came on to be Jury first appointed. tried, with the addition of talesmen, only could try the cause, That the stat. 3 Geo. 2. c. 25. sect. 15. enacted, that "the Jury so struck, &c. should be the Jury returned for the trial of the said issue." That in R. v. Jolliffe (a), where the trial had been put off on the day first appointed, the prosecutor applied to Lord Kenyon, at his chambers, for a new Jury, which was refused, and the Jury first struck tried the defendant. He also produced an affidavit, in which it was stated that the venire and distringas of the former Jury in this case were returned; and that the twenty-four persons named in those writs were alive. and resident in the county. And he observed that, though a distinction formerly prevailed in cases where there had been a change of sheriff after the time of striking the first Jury, in which case a new special Jury was struck, that distinction had been exploded in R. v. Hart (b).

Bearcroft now shewed cause against this rule, and insisted that what had been done in this case was warranted by practice and authority, and supported by principle. That it was of great importance to the administration of justice that there should not be a standing Jury, and that the parties might have no opportunity of tampering with the Jury. That in point of practice it had been usual to strike a new special Jury, whenever the cause went off for a default of Jurors at the time first appointed. That, in a very late case, R. v. Lord Ch. Fitzroy, which was an information in nature of a quo warranto, a new special Jury had been struck, as a matter of course, under such circumstances. That in R.v. Jolliffe, after the trial had been put off at the Spring assizes.

(a) Ante, 4 vol. 285.

(b) Coup. 412.

on

1793.

The KING against PERRY.

on account of some hand-bills which the defendant had distributed with a view of influencing the Jury, a new special Jury was struck in the Easter Term following, as a matter of course, and not on the ground of the defendant's having attempted to influence the former Jury; and that the application for another special Jury (alluded to by the defendant's counsel in making this motion) was afterwards in Trinity Term: but that in fact the Jury first appointed did not try the defendant, but a second special Jury struck in the Easter Term after the assizes when the trial was first fixed. That in R. v. Hart the twenty-four had not been struck, and that the only question there was whether the master should reduce the forty-eight to twenty-four. And that this very question had been determined in R. v. Waring (a).

BULLER, J. having asked the prosecutor's counsel whether he had seen a contrary determination in R. v. Franklin, and received an answer in the negative, read those parts of the following note, which are applicable to this point." The King against Franklin (b). Hil. 5 G. 2. B. R. 1731. Franklin was convicted upon an information for publishing a libel against the Government; and now Mr. Bootle moved that the prosecutor should bring in the postea, and that the Jury process, &c. might be filed; and said such a motion was granted in the case of the King v. Ward, and also in the case of the King v. Wright. It was objected by the Court (upon the information of Mr. Masterman) that it was contrary to the practice of the Court in these cases to hasten and oblige the Crown to bring in the postea upon motion; and that the defendant could not move in arrest of judgment till the prosecutor had brought

(a) The following note of R. v. Waring was read from the manuscripts of the late Mr. Masterman:-R. v. Waring. Indictment against the defendant for perjury, in East. 12 Geo. 2. The defendant pleaded not guilty in Trinity Term following; when Mr. Wirley, on behalf of the prosecutor, moved for a special Jury. The record went down for trial at the ensuing assizes, and the special Jury were returned for the trial; but the cause was not entered with the marshal, the prosecutor's witnesses not being able to attend. In the Michaelmas Term following the Court gave costs to the defendant against the prosecutor for not having proceeded to trial. In Hilary (c) Term following a motion was made for a special Jury by Mr. Burrell, which was opposed by Mr. Taylor, the defendant's counsel, who said he did not see any reason why the same Jury should not be summoned to attend at the next assizes. Sed per Curiam (Probyn, J. and Chapple J. abs.) "If the party desire a new special Jury we cannot refuse him one." And Page, J. "seemed to think that the former could not be summoned." Per Curiam, let there be a new special Jury.

(b) Vide 2 Sess. Case, page 333. S. C.

(c) N. B. No rule for such Jury appears to have been drawn up either in Hilary or Easter Term, but in Trinity Term following there was a rule for a special Jury at the instance of the defendant.

in

1793.

against PERRY.

in the postea, and given a rule, &c. to the defendant. Mr. Bootle; There seems to be no reason for such practice. In all cases relating to the revenue, &c. where the Crown is prosecutor, the The KING defendant upon motion hath a rule of course to bring in the postea; the same reason holds in this case, and stronger; for should the prosecutor refuse to bring in the postea at all, the verdict will not only hang over his head in the interim ; but suppose the defendant be in custody and cannot find bail, he must remain there till the Crown thinks proper to bring in the postea, which, perhaps, may never be brought in at all, and so the party be without remedy. Rule per Curiam Nisi.

"At another day, Mr. Attorney General came and shewed cause, and alleged that this motion was contrary to practice. That there was no one instance that the poslea was ever filed in these cases, but that it always remained in the hands of the Clerk in Court; and that when it is brought into Court the distringas is always annexed to it, and brought in along with it. The defendant, if he please, may move to have the postea brought in, which is the common motion in these cases, in order to move in arrest of judgment. It is impossible that the distringas should be filed, there being no file for that purpose in the Crown Office: it is always annexed to the postea, and cannot be separated from it upon any motion. As to the venire (he said) that was filed before this motion was made, and if the defendant had any objection to that, it was open to his inspection.

"Mr. Bootle and Mr. Fazakerley, contrà. If the postea and distringas are brought into Court it will answer our purpose. Although the distringas is annexed to the postea upon the return, and is brought into Court along with it, yet it is always sent back again to be filed, for it is no part of the record, nor is it entered up upon the plea.

"Per Curiam; The distringas cannot be filed; there is no file in the office for that purpose. The defendant after conviction may come at any time within the four first days of the term, and upon motion oblige the clerk in court to attend and bring in the postea: he is entitled to it de jure, and this is the constant practice in these cases. And so they made a rule that the postea and distringas should be brought into court, and the venire filed.

"Franklin being convicted upon an information for publishing a libel, his counsel moved to set aside the verdict, the trial being by a jury who had no authority; and objected that a rule being made in B. R. for a special jury for the trial at the sittings after

Trinity