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E. T. 1848.
Queen's Bench. Was this guarantee founded on a past or a continuing and see present consideration ? The defendant says by his guarantee, “in “consideration of any sum he now owes you, I hereby guarantee WOOLSEY. "you the payment of the same; also from any loss that may arise “on his transactions with you hereafter, to the extent of £300 “sterling :” that is, I guarantee you not only the sum he now owes, but any loss that may happen to you in your dealings with him hereafter, to the extent of £300. That is clearly a continuing agreement to make such advances as may be considered prudent and desirable, or discount such bills as may be thought proper. The consideration is a valid and legal one, and is sufficiently expressed.
The consideration is quite good, the meaning being that the opening of the account was cotemporaneous with the agreement.
Cause allowed, with costs.
* The Chief JUSTICB and CRAMPTON, J., were sitting in the Court of Exchequer Chamber.
AMY FINCH, WILLIAM BRIEN and PATRICK WOODS.
May 4. F. MEAGHER applied on behalf of two of the defendants, Brien and The Sprac
tice as to the Woods, that it be referred to the Taxing-officer to tax the costs taxation of
costs under properly incurred by the defendants in this cause, including the 23 & 24 G. 3, costs of this motion, as between attorney and client; and upon the same being so taxed and ascertained, that the plaintiff's attorney should be at liberty, upon issuing their writ of execution in this cause to the Sheriff, to include and add the taxed costs of said defendants in this cause to the costs of the plaintiff, to be levied
E. T. 1848. pursuant to the provisions of 23 & 24 G. 3, c. 20 ;* said costs to be Queen's Bench.
added to the costs of the plaintiff; and when received to be paid over to the defendants.
This was an action brought against the defendants and one Amy Finch, as inhabitants of the parish of Burggess in the county of Tipperary, for compensation for the value of a quantity of wheat, alleged to have been feloniously taken away from the plaintiff by persons unknown; and a verdict was had for the plaintiff for £20. A similar order to this now applied for was made in the Court of Exchequer, on the 31st of January 1848, in the case of Ryan v. Bagwell.
It is ordered, that it be referred to the proper officer to tax
and ascertain the costs necessarily incurred by the defendants in this cause, together with the costs of this motion ; and that in so doing, the officer do consider the costs directed to be paid by the defendant by the order setting aside the judgment by default in this case; the costs of the said order and the costs of the motion for a new trial in this case, under the order thereon, not to be included in the costs necessarily incurred by the defendant; and when said costs shall be taxed and ascertained, that the plaintiff's attorney, upon issuing the writ of execution to the Sheriff, do add same to the costs of the plaintiff, to be levied pursuant to the provisions of 23 & 24 G. 3, c. 20; and when plaintiff's attorney shall receive the amount of the said defendants' costs from said Sheriff, that he do pay same to defendants' attorney without further motion.
• 23 & 24 G. 3, c. 20, 8. 3, enacts, that for the more sure and easy levying of the damages and costs in this action, the Sheriff, six days after the receipt of the writ of execution, is to serve a copy under band and seal on the defendant, if in his bailiwick; and on the rector or any principal parishioner requiring the sum to be applotted and levied ; and in six days post a notice to landholders and inhabitants to meet to applot and choose collectors; and section 4 provides that if no applotment be made or collector appointed, or if the sum be not paid in thirty days, it is to be levied off the party.
E. T. 1848. Queen's Bench.
THOMAS SHEA, in Error, v. THE QUEEN.
WILLIAM DWYER, in Error, v. THE QUEEN.
May 5, 6. In this case the plaintiffs in error had been tried and convicted at An indictment
charged that the Spring Assizes of 1848 for the King's County, before the Lord A B, with a
ball and shot CHIEF JUSTICE, upon an indictment framed under the provisions of out of a gun, the statute 7 W. 4 and 1 Vic. c. 85.
The first count was as fol- nicusly did lows:
trate and “King's County, 7 “The jurors for our Lady the Queen upon their with intention to wit. -) “oaths do say and present that Thomas Shea, of, &c., &
, , was feloniously to “William Dwyer, of, &c., and a certain person to the jurors aforesaid kill and mur.
der, and that “unknown, being evil disposed persons, and not having the fear of E F was aid
ing and abet“God before their eyes, but being moved and seduced by the insti- ting. The “gation of the devil, on the 5th day of November, in the eleventh contained
eight other “year of the Queen, &c., with force and arms, at, &c., in and upon counts, some
charging the “Stephen Dobbyn, in the presence of God and our Lady the Queen
capital felo“then and there being, feloniously did make an assault, and that
others charg“ the said Thomas Shea a certain gun then and there loaded and ingertra
a liv lodon able felonies. “charged with gunpowder and one leaden ball, and divers leaden
The prisoners “shot, which gun the said Thomas Shea in both his hands then were found
guilty upon “and there had and held, at and against and upon the said Stephen the first count,
and sentence “ Dobbyn then and there feloniously did shoot off and discharge ; of death
awarded ; and “and that the said Thomas Shea, with the leaden ball and shot the jury were
discharged “aforesaid, out of the gun aforesaid, then and there by force of the from giving
any verdict “gunpowder shot and sent forth as aforesaid, the said Stephen upon the other “ Dobbyn, in and upon the left arm and left thigh of him the said
Held, that “Stephen Dobbyn, then and there feloniously did strike, penetrate the first count
sufficiently “and wound, with intent in so doing him the said Stephen Dobbyn charged an
of 7 W. 4 and 1 Vic. c. 85, s. 2. Held, that the averment that the injury inflicted was dangerous to life was un. necessary.
Held also, that the discharge of the jury from giving a verdict upon the issues joined upon the other counts was no ground of error.
E. T. 1848. “then and thereby feloniously, wilfully and of his malice prepense Queen's Bench.
“to kill and murder ; and that the said William Dwyer and the said
“person to the jurors unknown, at the time of committing the felony THE QUEEN. “aforesaid, then and there with force and arms, at, &c., feloniously,
“wilfully, unlawfully and maliciously were present, feloniously “counselling, aiding and abetting the said Thomas Shea, the felony “aforesaid, in manner and form aforesaid, to do and commit, against “the peace," &c.
The second count charged Thomas Shea with shooting at Dobbyn with intent to disable him, and that Dwyer was present aiding and abetting.
In the third count the offence was charged with intent to do some grievous bodily harm.
The fourth count charged a wounding (as in the first count) by Dwyer, with intent to murder, and that Shea was present aiding and abetting.
The fifth and sixth counts charged Dwyer with shooting at Dobbyn, with intent to disable and to do some grievous bodily harm, and that Shea was present aiding and abetting.
The seventh count charged a wounding by a person unknown, with intent to murder, and that Shea and Dwyer were present aiding and abetting.
The eighth count charged a shooting at, by a person unknown, with intent to disable, and that Shea and Dwyer were present aiding and abetting.
The ninth count charged a shooting at, by a person unknown, with intent to do some grievous bodily harm, and that the prisoners were present aiding and abetting.
The record then set out the plea of not guilty, and that issue was joined thereon—the venire and empanelling of the jury; and that the jury found that Thomas Shea and William Dwyer were guilty of the felony in the first count charged ; and that, as to the several issues joined on the second and other counts, the jurors were by the Court discharged from giving any verdict upon the several issues joined upon those counts.
The record then stated the sentence of death and execution.
Separate writs of error having been sued out, causes were as- E. T. 1848. signed, that the judgment of death was not warranted by any matter
- Queen's Bench. stated on the record, that there was a misjoinder of counts, and that
SHEA the jury ought not to have been, and could not be legally, discharged THE QUEEN. from finding a verdict upon the issues joined upon the second and other counts of the indictment.
Hayes, with whom were Macdonogh and J. A. Curran, for the plaintiffs in error.
The errors relied on in this case are, first; that upon the first count of this indictment a sentence of death could not be legally pronounced. It only authorised a sentence of transportation. This count is framed under the statute 7 W. 4, and i Vic. c. 85. It charges that Thomas Shea did strike and wound S. Dobbyn with intent to kill and murder him. To make that an offence within the 2nd section of the statute, the indictment ought to have stated that the wound was dangerous to life; for that section enacts, “that “whoever shall administer poison, &c., or shall stab, cut or wound “any person, or shall by any means whatsoever cause to any person “any bodily injury dangerous to life, with intent, in any of the cases “aforesaid, to commit murder, shall be guilty of felony, and being “convicted thereof shall suffer death.”
The first enactment upon this subject is 1 & 2 G. 3, c. 58 (Lord Ellenborough's Act). In that statute a number of acts, with a number of intents, are enumerated, any one of which subjected the offender to capital punishment; then came 10 G. 4, c. 34, which classifies these several intents. This statute was enacted in consequence of the want of generality in the previous Act, and the word “wound” is introduced into it. In that statute the word “wound" is confined to a particular class of offences, and has a specific meaning attached to it. The injury averred in this indictment does not come within the legal meaning of the word "wound:” Rex v. M'Dermot (a). The wound must be inflicted by some instrument capable of stabbing or cutting : Rex v. Stevens (6); Rex