The Queen v Freeman

• Jurisdiction: Ireland
• Judgment Date: 24 May 1875
• Date: 24 May 1875
• Court: Court for Crown Cases Reserved (Ireland)

Cr. Cas. Res.

Before PALLES, C. B. FITZGERALD, B., FITZGERALD and BARRY, JJ., and DOWSE, B.

THE QUEEN

and

FREEMAN.

Daniels v. HarrisELR L. R. 10 C. P. 1.

Pigot's Case Rep. T. R. Law, 1868.

The King v. The Archbishop of Armagh and JacksonENR 8 Mod. 5.

Regina v. Duffy 4 Cox, C. C. 135.

The King v. Baxter 5 T. R> 83.

Knowlden v. The QueenENR 5 B. & S. 555.

The King v. Goff Russ. & Ry. C. C> 179.

Rex v. MellorENR Russ. & Ry 144.

Regina v. HeaneENR 4 B. & S. 947.

Regina v. Duffy 4 Cox, C. C. 131-6.

Venue Recognizance 6 Goe. 4, c. 51 Indictment 34 & 35 Vict. c. 110, s.11 Defence Sending unseaworthy ship to sea Duty of unskilful owner.

Vol,. IX.] COMMON LAW SERIES. 527 right conclusion. It is enough for me to say that I have here no .Exchequer. means of deciding on the pleading that which is a pure question of 1875. fact. KIRETATRICK I am thus relieved from giving an opinion on the second point GowVIN. that was argued, namely, whether there is any contract at all stated in this count. I do not look with favour upon this mode of pleading. Cases where the contract in writing has been set out in terms afford no justification for the course adopted here. In those eases there were contracts or agreements signed by both parties. Here we have only a memorandum under the Statute of Frauds, miscalled an agreement. The count in the plaint would have been set aside on motion. I have a very strong impression that it would be difÂÂficult to support it on demurrer; but the Court having decided that the count is bad for the first reason, there is no necessity for giving an opinion upon the second point. After what has hapÂÂpened in this case, I do not think it likely that any pleader will adopt this count as a precedent either as to its substance or its form. Attorneys for the Plaintiff : H. 85 W. Seeds. Attorneys for the Defendant : Lean 8f Boyle. (COURT FOR CROWN CASES RESERVED) (1). THE QUEEN v. FREEMAN. Venue-Recognizance-6 Geo. 4, c. 51-Indictment-----34 & 35 Pict. c. 110, s.11-Defence-Sending unseaworthy ship to sea-Duty of unskilful owner. The prisoner was tried and convicted, under the 34 & 35 Viet. c. 110, s. 11, for sending a ship to sea in an unseaworthy state, upon an indictment which did not aver either that he knew of her being unseaworthy or that he had not -used reasonable means to make her seaworthy: It did not appear that the recognizance required by the 6 Geo. 4, e. 51, had been entered into by the prosecutor : The prisoner was tried by a jury of the county next adjoining the county of a city in which the offence had been committed: Held, 1. That the indictment need not aver that the accused knew the ship to be in an unseaworthy state; 2. that the indictment need not contain aver (1) Before PALLES, C.B., FITZGERALD, B., FITZGERALD and BARRY, IL, and DOWSE, B. VoL. IX. 2 B Cr. Cas..Res. 1875. May 24. 528 THE IRISH REPORTS. [I. R. Cr. Cas. Ices. ments negativing the use of reasonable means to make and keep the ship sea 1875. worthy ; 3. (per BLUES, C. B., FITZGERALD and Down, BB.), that, upon the case THE Q as reserved, no objection as to the absence of a recognizance was open to the v. prisoner ; (per FITZGERALD and BARRY, JJ.), that the Crown had power to try FREMAL prisoner in the venue next adjoining that in which the offence was committed, and was not bound to enter into the recognizance required by 6 Geo. 4, c. 51. THE PRISONER was convicted at the Waterford Spring Assizes, 1875, upon-an indictment which in the 1st count charged that he, "on the 12th of September, 1874, having authority, to wit, ',as owner, to send to sea a certain ship," &c., "did then unlawfully send the said ship to sea in an unseaworthy state, so as to endanger the lives of," &c., " who then belonged to and were on board the said ship :" the 2nd count was similar, omitting the averment of ownership. The venue in the margin of the indictment was " County of the city of Waterford, to wit, county of Waterford ;" the indictment' was found by the Grand Jury of the county of Waterford, the trial took place in the County Court House, which is situate in the county of the city, which is the next adjoining county to the County of Waterford, and the prisoner was tried and convicted by a jury of the county of Waterford ; but the offence had been committed in the county of the city of Waterford. Hemphill, Q. C., when the prisoner was put forward for trial, moved that the indictment be quashed upon the following grounds :- 1. Because no recognizance had been entered into by any person upon behalf of the prosecution under the 6 Geo. 4, c. 51, s. 71. 2. Because the said indictment did not negative the several matters which the said Statute (34 & 35 Vict. 110, s. 11), provided might be proved by the accused (1). (1) 34 & 35 Vict. c. 110, s. 11.-"Every person who, having authority as owner or otherwise to send a ship to sea, sends her to sea in an unseaÂÂworthy state so as to endanger the life of any person belonging to or on board the same, shall be guilty of a misdemeanor, unless he proves that he used all reasonable means to make and keep the ship seaworthy, and was ignorant of such =seaworthiness, or that her going to sea in an unseaÂÂworthy state was, under the circumÂÂstances, reasonable and unavoidable, and for this purpose he may give eviÂÂdence in the same manner as any other witness. A misdemeanor under this section shall not be punishable on summary conviction." VOL. IX.] COMMON LAW SERIES. 529 3. Because the case should be tried in the city and not in the county of cr. Cas. Res. Waterford. 1875. UEEN Q THE The motion was refused, and the prisoner pleaded not guilty. v. At the conclusion of the case the jury were directed by the FREEMAN. learned Judge-" That if they (the jury) believed that the prisoner, being owner of the ship (the " Alcedo"), sent her to sea in an unseaÂÂworthy state so as to endanger the lives of the persons on board, and did not prove that he used all reasonable means to make and keep the ship seaworthy, they should find him guilty ; but if they believed she was seaworthy, or that he used all reasonable means to make and keep the ship seaworthy, and that he was ignorant of her being unseaworthy on the 12th of September, 1874, they should acquit 'him" Hemphill, Q. C., for the prisoner, then objected in writing, and required. the learned Judge to tell the jury :- 1. That in considering...