Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	error_n	plead_v	writ_n	1,712	5	9.3617	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A25872	The arraignment, tryal, and condemnation of Ambrose Rookwood, for the horrid and execrable conspiracy to assassinate His Sacred Majesty King William, in order to a French invasion of this kingdom who upon full evidence was found guilty of high treason before His Majesty's justices of Oyer and Terminer, at Westminster on Tuesday the 21st of April 1696, and received sentence the day following, and was executed at Tyburn on the 29th day of the said month : in which tryal is contained all the learned arguments of the King's council and likewise the council for the prisoner, upon the new act of Parliament for regulating tryals in cases of treason.	Rookwood, Ambrose, 1664-1696, defendant.	1696 (1696)	Wing A3755; ESTC R4588	88,215	80

and 3. After that by Writ of Error Now this Clause of this Act takes away the Privilege of moving in Arrest of Judgment for mis-writing c. but saves the advantage upon a Writ of Error and upon a Motion to quash the Indictment We are to consider what is a proper time for a Motion to quash an Indictment the Motion is to be made to the Court and to them alone It is not to be made to the Court and the Jury When the Jury is sworn all Application is to be made to the Court as having a Jury present which they are to assist in the Tryal and Determination of the Fact only What use then is there of the Jury when you make this Motion which consists only in points of Law They must stand by and be out of Office all the while this Motion is making and it is not reasonable nor certainly ever was intended that after a Jury is sworn to try a matter of Fact they should stand idle while you move a thing which you should have moved before they came to the Bar suppose you should now move some Exception to the Venire and the Return thereupon should we when we and you also have admitted the Jury to be sworn quash the Process whereby they are Return'd And yet we may as well do that as this For the Act provides in the very same words concerning Quashing Process and Indictments But when the Jury is sworn and ready to receive their Evidence sure then it is out o● all season to make such a Motion therefore I do not think the Parliament intended by this Clause which was a kind of Exception to the Favour the Prisoner receiv'd by having the Copy of the Indictment to institute a new Method of Proceedings for Motions to Quash Indictments even when a Jury is at the Barr and sworn to try the Issue and there is nothing proper to be proceeded upon but only to hear the Evidence produc'd for the proof of that Issue till the Jury is discharged But still this I would say this is a new Case and upon a new Statute I am truly of Opinion that the Motion is altogether Unseasonable and Irregular and it should have been made before and you had a full Opportunity to make it this Day Seven-night before Plea pleaded and you might likewise to Day before the Jury was sworn therefore when the Jury are now at the Bar actually enter'd into and imploy'd upon the Service the Court ought not to be Interrupted by such a Motion Yet nevertheless I would propound this that seeing it is a new Case and upon a new Statute the Court would forgive the Irregularity for I think it does need Forgiveness and if the King's Councel will Consent to it to prevent any Error or any pretence of Hardship upon a new Law that we should hear their Exceptions L. C. Baron This Act of Parliament as it has given a Benefit to the Prisoner that he had not before in allowing him a Copy of his Indictment in order to his taking Exceptions to it so it has Restrained him as to the time of making those Exceptions That he shou'd have a time for it there is no Doubt and the time limited for it as this Act says must be before Evidence given because it might well be thought unreasonable that there shou'd be any Quashing of the Indictment at the Prisoner's or his Counsels motion after such time as the King had given any Evidence whatsoever in the Case for that wou'd be a Discovery of the King's Evidence and great Inconveniencies might ensue thereupon but the Question is at what time this is to be done Whether it may be at any time before Evidence given or no it was intended surely that the Motion to Quash the Indictment and taking Exceptions to it should have their proper time as well as effect and that must be before the Tryal but it was not the Intent of the Act to alter the Method of Proceedings formerly used in Criminal Cases for after the Jury is Sworn it is their proper Office to determine the Fact now if before this Act of Parliament as it hath been said it never was allow'd to take any such Exception as this after the Jury sworn but that the Regular time for such Motions is before Plea pleaded or Jury sworn that is before Evidence given as the Act of Parliament directs for it is not said as Mr. Cowper observed that it shou'd be immediately before the Evidence be given I do not suppose this Act alters any thing as to the Method of Proceedings from what it was before but that this Exception now comes improperly after the Jury sworn when it ought to be taken before Plea pleaded at least before the Jury sworn It is a new Act of Parliament and this is within the words of the Act that it is before Evidence given as the Counsel for the Prisoner say the Act directs I take it you have lost the Regular time for making this fort of Exceptions and you would invert the whole Method of Proceedings upon such Tryals as these for to what purpose is it to take Exceptions to quash the Indictment when the Jury are once charged with it If it be an Indictment that ought to be quash'd the Jury ought not to be charged you have had two times and they are both of them elaps'd for this matter that is at the Arraignment and before the Jury sworn yet I would propose it to the King's Councel as my Lord Chief Justice of the Common Pleas has done it being a new Case that it should at this time be consented to that the Exceptions as the Mis-writing Mis-spelling false or improper Latin might be made but that for the future it may be taken notice of that such Exceptions are to be taken before the Jury be sworn Mr. J. Nevile I wou'd begin with the Proposal because I believe I may not be so clear in my Opinion otherwise I must deliver my Thoughts according to my Judgment but I wou'd have the King's Councel consider of the Proposal Mr. Att. Gen. My Lord for us to consent to that in such a Case as this where the Court thinks it not Regular would be pretty hard to desire of us if any thing of advantage should happen on the other side I verily think the Councel for the Prisoner will not be so ready to consent to wave any such advantage nor am I for asking them to do it this Clause goes only to some faults in the Indictment Mis-spelling Mis-writing false and improper Latin that is all that they are Restrain'd from moving in arrest of Judgment any thing else any Uncertainty or other matter that is not comprehended under these Particulars they may take advantage of to move in stay of Judgment after a Verdict this Clause does only abridge them from moving in Arrest of Judgment for Mis-writing Mis-spelling false or improper Latin therefore if your Lordship should

do it before Evidence given now I would fain know if we could not before this Act move in Arrest of Judgment for mis-spelling or false Latin or improper Latin Mr. Att. Gen. You might no doubt of it Mr. Phipps They say we might why then if we could have a time to move it after the Verdict and that time is a bridg'd by the Act of Parliament which directs that it shall be before Evidence given in open Court sure we may take any time before the Evidence given and shall not be restrain'd further than the Letter of the Law has restrain'd us for this Act was intended for the benefit of the Subject and ought to be construed as much in their favour as the Letter of it will permit Mr. Att. Gen. No doubt of it it is to be done before evidence given but the question is at what time it must be before the Evidence given whether it must not be at such time as by the course of practice and usage of the Law it should have been done before if you will satisfie my Lord and the Court that ever such an Exception was taken or an Indictment quash'd between the swearing of the Jury and the giving the Evidence ye say something but I believe not one instance of that Nature can be given and therefore it is very irregular for them to do it L.C.J. Holt. They don't pretend to it for ought I hear for I would put them upon it to show me whether they could do it before Sir B. Shower I don't question my Lord but it might be with submission Mr. Conyers Did you ever know it before that any one undertook to inform the Court as amicus curiae but it was to prevent a wrong Judgment and for that you have your proper time either before Plea pleaded by motion to quash the Indictment or after Verdict to arrest a Judgment this Act of Parliament has restrain'd you in particular instances that are mention'd from doing it after Verdict in Arrest of Judgment but having given you a Copy of the Indictment before you plead you have had a proper time to make these Exceptions and if you have laps'd your time you come too late to do it now for sure nobody ever made a Motion to quash an Indictment after Issue joyn'd and the Jury sworn Mr. Soll. Gen. My Lord I would only mention one Case and that was of Sir Richard Mansell upon an Indictment of Murder for killing the Apothecary in Holbourn I did my self move to quash the Indictment because it was not exprest in what year of the King the Fact was done but the Court was of opinion we cou'd not move to quash an Indictment for that or any such notorious crime till after the Fact determined L. C. J. Holt. No we were always of that opinion never to allow Motions to quash Indictments for Perjury Murder or any great offence but it must be moved in Arrest of Judgment afterwards Mr. Cowper My Lord these Gentlemen seem to beg the question upon this Act of Parliament as if it had appointed this to be the time of making Exceptions to the Indictment the Act of Parliament does not say you shall make your Exception immediately before the Evidence given in open Court as if it had pointed out and directed to them that particular time that then they should take their Exception and no other time the Act has only set a bound that they shall not do it afterwards but as to the particular time it is left as it was before to the regular Course and Method of Proceedings which is before Plea pleaded Mr. Phipps My Lord they do not answer my Objection it is it seems a Restriction of a Liberty that we had before of moving in Arrest of Judgment if so we ought not to be restrained further than we are by the words of the Act of Parliament which say before Evidence given that is at any time before Evidence given as well after as before Plea pleaded Sir B. Shower I would ask these Gentlemen whether the Law intended that we should have no advantage of excepting against false spelling and improper Latin Mr. Conyers Yes they did but that you should do in your proper time Sir B. Shower Then the time for doing it must be that which the words of the Law say before the Evidence given in open Court and that 's now Mr. Conyers No you might have come at the Day of Arraignment and have taken the advantage of it then before you had pleaded L.C.J. Holt. Ye have had my opinion what I think of it my Lords and Brothers I suppose will tell you theirs L.C.J. Treby My Lord Chief Justice has delivered his opinion in this matter and he thinks fit that we should deliver ours I think this motion of the Prisoner's Councel to quash this Indictment after the Jury sworn is irregular and quite out of season the intent of this Clause in this Act of Parliament certainly was not in favour of the Prisoner it abridgeth him of a Liberty he had before but gives him nothing for the Law-makers did think they had given the Prisoner an extraordinary Favour in the foregoing part of the Act in giving him a Copy of the Indictment five Days before he should plead and a Copy of the Pannel two Days before he should be tryed and allowing him Councel and all these advantages were to enable him to quash the Indictment or the Process returned for the Clause extends to both the words are That no Indictment nor Process or Return thereupon shall be quash'd on the Motion of the Prisoner or his Cuncel for mis-writing mis-spelling false or improper Latin unless Exception concerning the same be taken and made in the respective Court where such Tryal shall be by the Prisoner or his Council assign●d before any Evidence given in open Court upon such Indictment nor shall any such mis-writing c. after Conviction be any Cause to stay Judgment therefore they made this extraordinary Provision to restrain the Prisoner in part by this Clause as much as to say you have an advantage of the Copy of the Indictment and you may make use of that to quash it by Motion if you think fit as you may also the Process but it shall be before Evidence given 'T is true those are the words but the using that term viz. quashing such Indictment or Process shows it must be done in such a way and time as is proper for quashing and the very words are that it shall be upon Motion Now we are to expound those words And I say a Motion to quash an Indictment must be understood a Motion in the proper Season which I think is before Plea pleaded but at least before the Jury is sworn There were three times when the Prisoner might have had the advantage of a fault in the Indictment before this Act 1. By Motion to quash it before Plea pleaded 2. Then afterwards in Arrest of Judgment