and what kind of affidavits will serve the end proposed by them; but these men swear further, and say, that they told him the same story they did now: If that be true, he drew these affidavits most falsely; he led them into perjury, and is as guilty as they are, and should as certainly be punished, if we had him; but I find on inquiry, he is not here; therefore, as we have nobody else to punish, we must punish these men, who have thus prevaricated and imposed upon the Court. L. C. J. It is a most wicked, profligate thing in an agent, to make an illiterate man swear an affidavit he knows to be false: Whether that be Goostrey's case or no I will not say, because he is not here to clear himself, but it looks very like it. Monday, February 4. Motions in behalf of the crown for putting off the Trial till next term.* Sol. Gen. for the crown. My lord, the high sheriff has been applied to several times to give a copy of the pannel, according to custom, to the agent for the prosecutors; but he has not hitherto been able to procure one, though the other party has. L.C.J. The sheriff could not give it without leave of the Court. Sol. Gen. The Court is seldom or never applied to on that account, the sheriff usually gives copies of the pannel to the parties, without any application to the Court, two or three days before the trial; but supposing an application to the Court necessary, why should he give it to one party, and refuse it to the other? Mr. Spring, for the traverser. The gentle⚫ men concerned for the prosecution have served ⚫ us with notice of a motion to put off the trial, ⚫ and therefore we hope they will make their ' motion,' And desired the notice might be read. Clerk of the Crown reads the notice as follows, viz. "Counsel in behalf of his majesty will move the Court on Monday morning next, to put off the defendant's trial until Friday next; which motion will be grounded upon affidavits this day filed in the proper office, and upon the affidavits of Mary Heath and of Daniel Mac Kercher, esq. made in this cause in the last Michaelmas term, and the nature of the case and reasons to be offered. "Dated this 2nd of February, 1744." In the motions for putting off the Trial, what is marked with inverted commas, are not in the trial printed by permission of the judges, but taken from two other copies of the Trial printed at that time (one in folio and the other in octavo), in order to render it more complete.-Former Edition. "Sol. Gen. We desire first to see if there be a jury; we have a right also to know if the jury have been rightly summoned. "The bailiffs being called to prove the sum'moning the gentlemen mentioned in the pan'nel, they appeared, were sworn, and the pan'nel was called over. 'Sol. Gen. I observe, my lord, that several ' of the gentlemen mentioned in this pannel are 'out of the kingdom, and well known by all of 'us to be out of the kingdom; several others live in distant counties, out of the county of Dublin; some are old and infirm, and un'capable of serving on juries for several years past; others have been dead several years; and some are six clerks in Chancery, and 'officers in the Custom-house, who neither can nor are obliged to attend. L. C. J. All persons summoned ought to appear, and then shew cause why they should be exempted from serving. The Jury being called over twice, eight of 'their number only appeared. Sol. Gen. My lord, I see only eight gen'tlemen of the jury attend, and if eight more of these in the pannel had been in the king'dom they would not have attended. Mem. 'bers of parliament are exempted, and so are 'officers in the court of Chancery, and Custom house. Others are disabled from attending by absence, the infirmities of old age and 'death; so that if both sides were prepared, as 'there is no jury, there can be no trial this day; 'for talesmen are not admitted on trials of this 'kind: therefore we are under no necessity of making our motion for putting it off to Friday next. Court. We had some thoughts of bringing on the trial next Wednesday, but there is a sitting of Nisi prius that day, and other suitors are not to be injured. Let the trial therefore 'be put off until Thursday, if it should be put ' off longer there would not be time for judg ment that term; but the attornies should 'consent. Mrs. Heath, do you consent it should 'be put off? Mary Heath. Yes, my lord. The agent for the prosecutors was asked whether he would consent to bring it on aThursday; but he said he would not come into any such consent, nor had he any autho'rity so to do.' The counsel for the traverser informed the Court, that their witnesses were in town at great expence, and hoped the counsel for the prosecutor would agree to prosecute at the day prefixed, and not then move to put it off longer. L. C. J. The reasons given to day for putting off the trial, I can tell you, will not be sufficient next Thursday for putting it off any further; if the great expences attending the 'trial are to be saved, the sooner the trial comes ' on the better. 'Sol, Gen. We intended to have tried this sion of Oyer and Terminer into this court on the very day it was to have been tried, after she had put the gentlemen for the prosecution to all the expence of a trial, for want of giving them previous notice of her intentions to put question to-day; but Mr. Mac Kercher, who conducts this affair, and is the only person 'that thoroughly knows the evidence proper to be produced to prove the indictment, is on the other side of the water, detained by contrary * winds; and so likewise are some of our most‘it off." And on the 7th of November when ' material witnesses, who are daily expected: there are seven packets due. If Mr. Macher bare allegation that she was not prepared * Kercher and our witnesses come, we will im'mediately go to trial; if not, we cannot. Mr. Bradstreet, for the traverser. I hope, my lord, that both parties shall be confined to particular hours to examine their witnesses in; for if the prosecutors, who examine first, should take up a long time, the traverser ⚫ might be thereby stinted in time for the examination of her witnesses: I humbly conceive both parties should examine an equal number of hours in turn. Mr. Harward. Such a rule was never made, my lord, I am pretty certain, on trials of this kind. Mr. Just. Ward. I have had the honour of being a considerable time on the bench; I 'cannot now pretend to bear fatigue as well as formerly; but I hope 1 shall take care that the jurors, or myself, shall not be in danger of 'being destroyed. she appeared on her traverse in this court, on to take her trial, she was farther indulged, and had till the 14th given her, to prepare herself for it, though the gentlemen were then also ready for trial. On the 13th, the day immediately preceding this last day appointed by the Court for her trial, the counsel for the traverser again moved to put off ber trial on her single affidavit, that she had some material witnesses in England, and in remote places of this king. dom, and upon that foundation alone her trial was put off till this term. We, my lord, have given regular and timely notice to the agent for the traverser, that we would apply to your lordship to put off the trial. Aidavits we have to shew that we are not prepared to come to trial, and therefore we hope we shall have the like indulgence with the traverser to put it off till next term, especially as this is the 'first application of that kind we have made; and as we have formerly been put to so great inconveniences and charges by the traverser's L. C. J. Examining by hours is not so unprecedented. It was the old custom among the Romans to examine by the hour-glass. Gen-affected delays. tlemen, I think proper to mention to you, That no witness shall be examined unless his 'evidence be previously opened to the Court, If your lordship pleases that Mr. Mac Kercher's affidavit sworn the 13th of November last, which was read upon the tra and that one counsel of a side only is to ex-verser's motion to put off her trial last term, 'amine.' Thursday Morning, February 7. The Court being sat, Sol. Gen. for the Crown. My lord, I mentioned to your lordship last Monday, that Mr. Mac Kercher and several of our most material ⚫ witnesses were on the other side of the water waiting for a passage; if they had arrived, ⚫ we should willingly have tried this traverse to day; but it has so happened contrary to our expectation that they are not yet arrived, and therefore as we are not yet furnished with our material evidences, or with any person * acquainted with the evidence proper to be ap⚫plied to prove the facts in the indictment, we cannot with safety go to trial. Colonel Weldon, my lord, who is known to be a gen'tleman of great worth and reputation, has ⚫ been served with a Subpoena, but is extremely ill of the gout in his bed, and though a very ⚫ material witness and willing to give his evidence, he is not able to travel to town without endangering his life, and the prosecutors, without the benefit of his testimony, cannot properly proceed to trial. I therefore only move your lordship that this trial may be put off till the first day of next Easter term. Serj. Marshall, for the crown. The traverser, my lord, removed this indictment in Dctober last by Certiorari from the commis 'may be now read. Court. Let Mr. Mac Kercher's affidavit be 'read.' "The KING against MARY HEATH. "Daniel Mac Kercher, esq. as page 4." Mr. Marshall. I pray my lord, that Mr. Nelson's affidavit may be read. Court. Read his affidavit. The KING against MARY HEATH. "Richard Nelson, of the city of Dublin, gent. maketh oath, that he, this deponent, being employed as agent on behalf of the prosecutors, he prepared briefs for counsel, and sent several Subpoenas for witnesses to several parts of this kingdom, to give evidence on behalf of his ma jesty against the traverser on her trial, which was, as deponent believes, appointed to be had on the 4th day of February instant. Saith, that by a letter, which this deponent lately received by post from Mr. Mac Kercher, dated London, the 10th of January last, this depo nent verily believes said Mr. Mac Kercher did on or about the 17th day of January last leave London, in order to come to this kingdom, to carry on the prosecution against the traverser, the said Mac Kercher being one of the prin cipal persons concerned in carrying on said prosecution; and verily believes, the said Mae Kercher is, and has been, at Park-gate or Holyhead for some days past, and would have on the trial of said Heath, in case the trial be put off to next term, and that said Weldon will be then able to travel with safety to his life.→ Sworn the 6th of February 1744." been here before this time, if the wind had served for a passage; and this deponent expects him in this kingdon as soon as the wind becomes fair for a passage from Holyhead or Park-gate. Says, he believes that William Goostrey is a material witness to be produced against defendant, and believes said Goostreytlemen who conduct this prosecution were Mr. Tisdal. My lord, it is the interest of society to bring offenders to justice: the gen and others, who are witnesses, as deponent be- fully prepared for a trial before this affair was lieves, to be produced against the traverser, are removed by Certiorari, and since it was re waiting with said Mac Kercher at Park-gate or moved into this court there was a day apHolyhead for a passage, and believes, that anpointed for trial last term; the witnesses came effectual prosecution cannot be carried on 'to town from several parts, at great expences, against said Heath until said Mac Kercher 'and in regard the traverser was not then comes to this kingdom.-Sworn the 2d of Fe-ready, the trial was put off, which put the bruary, 1744." Mr. Marshall. I pray, my lord, that the af fidavit of Robert Kennedy may be likewise read, which will inform your lordship of colonel Weldon's state of bealth. Court. Read his affidavit. 'prosecutors to great hardships in preparing at different times for the expected trial. The affidavits which have been read have men. 'tioned that some of our witnesses are at the 'other side of the water, and that colonel Wel'don has been served with a Subpoena, and 'would attend if possible. And for these rea sons we hope your lordships will put off the trial till next term.' • Court. Was Mr. Weldon bound over? • Mr. Nelson. No. 'secutors applied to push on this trial last term, there was no pretence then offered, that col 'Weldon was a material witness for them. I pray that Mary Heath's affidavit may be read.' Which was accordingly read, as likewise the others to oppose the said motion. "The KING against MARY HEATH. "Robert Kennedy, of the city of Dublin, maketh oath, that on the 27th day of January last, he, this deponent, served Arthur Weldon, esq. with a Subpeena, issued out of and under Mr. Daly, for the traverser. I would hum the seal of this court, dated the 28th day ofbly inform your lordships, that when the pro November last, by delivering unto the said Arthur Weldon, at his house in Raheen, in the Queen's county, a copy of said Subpoena, and at same time shewed him the original, and offered him a British shilling in silver, which he refused to take. By which Subpoena, said Weldon, and others therein named, were required to be in this court on Monday, the 4th day of February then next, between the "The KING against MARY HEATH. hours of seven and eight of the clock in the "The traverser, Mary Heath, maketh natb, forenoon, to testify on behalf of his majesty that her place of abode is in London, in the concerning a certain perjury, whereof Mary kingdom of Great Britain, and deponent having Heath stands indicted. And saith, that at the lived for several years with Mary lady Altham, time this deponent served said Weldon, he told wife of Arthur late lord Altham, was prevailed deponent he would most willingly attend in upon to come to this kingdom in the month of pursuance of said subpoena, but that he was so October 1743, in order to be examined as a witill of the gout, that he could not stand, or ness upon a trial, that was had at the bar of the scarce stir, and that he would not venture his Exchequer in this kingdom in Michaelmas life; and that the week before he had the gout term 1743, between Campbell Craig, lessee of in his stonfach. And saith, said Weldon then James Annesley, and the right honourable appeared to this deponent to be very weak and Richard earl of Anglesea; and deponent was ill, and was not, as deponent believes, able to examined on said trial on behalf of said earl. walk one step, nor was he, as he believes, able And saith, that after said trial was over, depoto travel in a coach or carriage from his house to nent was prevailed upon to continue in this Dublin without great danger and hazard of his kingdom, in order to be examined as a witness life; and verily believes, said Weldon is not, nor on behalf of said earl in a cause depending in bas since been able, without the greatest danger the Chancery in England between said James to his life, to travel in a carriage or otherwise to Annesley and said earl of Anglesea; and depo. Dublin; and verily believes, said Weldon is a nent was examined as a witness in said cause material witness to be produced on behalf of his in or about October last, by virtue of a commajesty against the traverser, on the indict-mission from England, which was then speedment for perjury against her; and verily being at Wexford; but some time before depolieves the said Mary Heath cannot be effec- nent was so examined, she was arrested upon tually prosecuted upon said indictment without a warrant for perjury, alleged to be committed the testimony of said Weldon ; and believes said by her in her evidence on said trial; and the Weldon would readily attend to give evidence doors of the house, in which deponent lodged on the trial of said Mary Heath, if he could do in Latten's-court, Dublin, or liberties thereof, it without endangering his life; and verily be- were broke open when deponent was so arrestlieves, and doubts not but said Weldon will at-ed by a parcel of bailiffs or setters, some of tend to give evidence on behalf of his majesty whom declared they had waited for an opportu "The KING against MARY HEATH. "Mark Whyte, of the city of Dublin, gent. one of the attornies of this honourable court, maketh oath, That he, this deponent, is employed as agent on behalf of the traverser in this cause, and was so employed by the right honourable Richard earl of Anglesea and Charles Annesley, esq.; and saith, he hath laid out and expended to lawyers, and other necessary preparations for the trial of the said defendant, over and above the expences of witnesses, attorney or agents fees, or preparing or copying briefs, the sum of 3001. sterling and upwards, and also paid a draft of 50%. English money, which was drawn on deponent, to defray the expences of some witnesses that live and reside in England.-Sworn the 6th of Feb. ruary 1744." nity to find deponent alone. And when depo- half of defendant on her trial, many of whom nent was so arrested, she was brought from are persons of figure and fortune, and have her said lodgings to Henry-street, and from been brought and kept here at the expence of thence towards said James Annesley's house said earl and Charles Annesley, esq. And or lodgings in College-green; and in the saith, he hath made the exactest computation road, some of the persons that arrested de- he possibly could of the expences of bringing ponent, or attended them, directed that depo- said witnesses and keeping them in this city, and nent should be brought to Castle-street; and the necessary expence that must attend their deponent was accordingly brought to a tavern being sent to their respective places of abode ; in Castle-street, and from thence to a public- and saith, the same upon the most moderate house, as deponent believes it to be, in Christ-computation, will amount at least to 7001.church-yard; where the person before whom Sworn the 6th of February 1744.” deponent was brought, declared, he believed it was not a bailable offence; and several persons that appeared as agents for said James Annesley, seemed to doubt whether bail could be taken for deponent; but at length said person bound deponent in recognizance of 1,000l. and each of the securities in 500l. to the best of deponent's remembrance, and bound deponent to appear at the sessions of Kilmainham, and refused to bind deponent to appear at any other place. And deponent is informed and believes, that there were not any examinations returned to Kilmainham against deponent, but deponent was bound over to appear at the commission of Oyer and Tertniner held in or about October last, and was obliged to give security for deponent's appearance there. And deposeth, that deponent's business and affairs require her at tendance in London, and her being obliged to stay longer in this kingdom will be very inconvenient and prejudicial to her; and saith, that the attempt to put off deponent's trial is "Edmond Bourk, of Collumkill, in the county made, as she verily believes, with intent to har- of Kilkenny, farmer, maketh oath, That since rass and distress deponent, and the said earl of the beginning of December last he, this depoAnglesea and Charles Annesley. And deponent, has been employed to serve subpœnas to ment is informed, and verily believes, there are testify and give notices to witnesses to attend at this time in this city at least fourscore per- and give evidence on behalf of the traverser, on sons that have been subpoenaed and brought the trial appointed to be this day; and that he hither from different parts of this kingdom at attended several of said witnesses to Dublin great costs and expences to attend and be exa. for that purpose. And deponent knows there mined as witnesses on behalf of deponent upon now are in and about the city of Dublin upher trial. Saith, that several of said witnesses wards of thirty persons, and believes there are are old and infirm, and believes in her con- upwards of sixty persons attending as witnesses science, that if her trial should be put off to on the part of the traverser, several of whom another term, several of her most material wit- are persons of distinction and fortune, and have nesses may die; and verily believes it will not brought with them several servants and other be possible at a future time to get her said wit-persons and horses. And saith, he verily benesses together, if they are once dispersed, or lieves, and is satisfied in his conscience, that go to their respective places of abode. And two hundred guineas will not defray the exsaith, there are two persons lately dead, that pences of the witnesses so in town, their lodgwere very material witnesses for deponent.-ings, servants, horses and other attendants for Sworn the 6th of February 1744." "The KING against MARY HEATH. "Michael Lacy, of Camolin, in the county of Wexford, gent. maketh oath, That he, this deponent, has been employed by the right honourable Richard earl of Anglesea in bringing several witnesses to this city from several parts of the country, to give evidence on behalf of the traverser upon her trial in this cause; and saith, there are now, and for some days past have been, in this city upwards of 80 witnesses, who have been brought from different parts of this kingdom, in order to give testimony on be "The KING against MARY HEATH. the space of four days. And saith, he attended the execution of the commission for the examination of witnesses at Wexford, in the months of September and October last past, between the earl of Anglesea and James Annesley, and was himself examined as a witness on that commission, relative to the parentage and birth of said James Annesley, and the issue or supposed issue of Arthur late lord Altham by his lady; and saith, he was credibly informed and believes, that Dean Hughes, late of Enniscor thy, gent. and Henry Giffard, late of Ross, gent. and the Reverend William Hervey, of Bargybridge, clerk, were examined on said commission on behalf of said earl, and believes said Dean Hughes, and Henry Giffard are since dead, and that the said Mr. Hervey was about Michaelmas last taken ill and bis life despaired of; and saith, that several of said witnesses now in Dublin attending said trial, are ancient and infirm persons, and live dispersed in se. veral parts of this kingdom. Sworn the 4th of February, 1744." "The KING against MARY HEATH. "John Campbell, of maketh oath, That on the 30th day of January last this deponent left Park-gate, where he had been waiting for a wind eight days, and during his stay at Parkgate aforesaid, he heard nothing of Daniel Mac Kercher or Mr. Goostrey's being there, and believes, if they had been there, he could not but have heard of them. That deponent went from Park-gate aforesaid, across land to Holyhead, where he staid but one night, and got his passage in the packet, and arrived at Skerries the 4th instant in the evening; and that deponent heard nothing of them at Holyhead; and believes they were neither at Parkgate or Holyhead at the time aforesaid. Sworn the 6th of February, 1744. "The KING against MARY HEATH. Mr. Recorder. The next thing to be con'sidered, my lord, is the affidavit of Robert Kennedy, who swears, That Mr. Weldon is a ' material witness, without giving any account 'that he knows him to be so; this person, who is only a server of subpoenas, ventures, from his own knowledge, to know what is or what "Robert Kennedy, of the city of Dublin, maketh oath, That he, this deponent, having received from Mr. Richard Nelson several sub-is not material. If the agent in the cause pœnas for witnesses to appear on the 4th day of February instant, to give evidence on behalf of his majesty against the defendant upon hertrial, this deponent accordingly served a great many of said witnesses with said subpoenas respectively in the several counties in this kingdom, in which they live, and saith, a great many of such witnesses are come to this city in order to give evidence against said Heath on her trial. Sworn the 2d of February, 1744.” Mr. Recorder, for the traverser. The bill 'was found in October by the commission of Oyer and Terminer; and the reason of 'moving the indictment by Certiorari was, 'that it was impossible for the traverser, in so short a warning, to prepare for her trial; and it so happening, that Michaelmas term was ⚫so close on the heels of finding the indictment, 'she could not, notwithstanding all her efforts, collect all her witnesses from the remote parts ' of this kingdom, and from England to pre'pare for this trial. And therefore could it be ⚫ imagined that it was to delay justice, when the 'traverser was only endeavouring to have an ⚫ opportunity of defence? The prosecutors then ⚫ said they were ready; and pray why not the same reason now of being prepared? If they 'put themselves to unnecessary expences last term in preparing for trial, the fault of that is to be imputed to themselves; they had notice given them that application would be made 'to postpone the trial. Counsel for the Crown. It clearly appeared to the Court last term, that the traverser had would swear it. there might be some reliance on it. If this trial is put off, my lord, another witness may be found next term, which might be thought as equally material; so that this gentlewoman, before she can have an opportunity of justifying herself, may die in the mean time, under the imputation of the indictment. If they had produced the affidavit of any physician who attended Mr. Weldon, to certify his illness and bis inability to come to town, it would be more proper than the assertion of the server of subpoenas: besides, my lord, a man in the gout, though he cannot walk, might be able to travel. But how a person who is neither attorney or agent in the cause, and who is not to be presumed to be in the 'secrets of the prosecutor, can swear Mr. Weldon a material witness, is somewhat very 'extraordinary; besides, my lord, since the time of service of the subpoenas, which was the 27th of January, he may have so recovered as to be able to come to town, though indisposed then. But why was not this gentleman thought of last term, when the prosecutors said they were ready? Therefore, consi'dering the circumstances of this case, I hope your lordships will not put off the trial. Sol. Gen. My lord, it appears that the bill of indictment was found against this woman the 24th of October, yet application was made on the 13th of November last to put off her trial; she had that interval of three weeks time to prepare; but because she swore she had some material witnesses whe |