Star. — London, England, 1809-11-24 00:00:00

LAW IRTELLIGENE. COURT OF KING'S BENCH, NOV. 201 WRIGHT V. VCARDLE ) ESQ. This rule being called on, Lord EtlExsonotinsi .-ead his notes upon the trial* of the action ; and after. The ATTORNEY-GENERAL, rose to shew cause against the rule ; and spoke nearly as follows Unless, Lnrdi Colonel Wardle can prevail with himself .0 think that justice will be adthinistered to him by dijerent rules from those which ordinarily govern this Crert, I see no hopes of his success in his present a pplication ; and I am sure his Counsel, having con g,ientially seen the affidavits which I have in my pos gssion, can have given him no hope of it. The C o urt ought to be apprised of certain facts which they do not know, and which Colonel Wardle ought to h av e made known to them ; they place the Colonel to a very awkward situation. He has preferred an indictment, found at Hicks's Hall, and removed h er eby certiorari, against the witnesses, in the present action, for conspiring together to get a verdict against him. The removal of this indictment here, enables me to see on whose testimony it is found ; and I dis c:Ter that it is on that of the very same persons, who h : ve stated the facts upon which the application for t he present new trial is founded. I would ask the Cant then, if they will now entertain this Irking-bill a gainst parties, whom the Defendant dare not indict icr perjury ? I hope Colonel Wardle is not now out c - Court, and that this will not be always his excuse." Lord ELLENBOROUGII—" I hope it is understood that the Court, in granting the present rule Nisi, had no idea cf so granting it, upon the ground of any treachery in tie Cdunsel to whom he confided his cause•" The ATTORNEY GENERAL—" Certainly not, my terd nor do I take it so ; for more honourable rn:o never practised at the bar. The Defendant's ph is that his Attorney has not done his duty ; and that in consequence of this, he has changed his At torney. This is a mere trick to induce the Court to believe this eirclimstance,_ without the Defendant's daring to swear to any positive misconduct. Colonel Vardle complains of perjury, but he has not the har dhood to indict for it ; and has the folly to suppose, that if he institutes a prosecution, in which the per sons against whom he complains cannot be witnesses, he shall go over the course alone. Was there ever my thing so impudent as this ? But your Lordships shall see more of little cunning and contrivance than you may at present suspect. Mrs. Wright, the wife tithe Plaintiff, knows a great deal about this matter; end Colonel Wardle was advised that if he could in noire the Plaintiff himself in his indictment, his wife rould b .trectually prevented from giving any tes tmonv upon the subject. This indictment is hereaf tr to be tried, and Colonel Wardle was consequently usitons of knowing what more was to come out grainst him t lie now, therefore, prepares to draw out tatever else of strength the Defendants in this in- Cament have, in order that he may know exactly low to meet it. I hope the Colonel is now within hearing, as he complained of not being so before ; bit if he be even in the Hall (said the Attorney Ge neral, raising his voice), I will make him hear, that tie present motion is brought forward with a view of irforming Colonel Wardle how far he may go in his testimony in the coming indictment. We felt, my L'rd, the peril of this proceeding ; and perhaps never vereany persons, answering a criminal charge, placed in such a situation before. We told the Plaintiff, eat if your Lordship knew this, you would not grant the rule ; and I could not help admiring the frank ness of his answer: Sir,' said he, when you had tl'e conduct of this cause at the trial, its effect depen del upon the credit of the witnesses ; but the present slswing cause depends upon my own testimony, and no danger in the world shall prevent my suiting the vhole of what I know t I am happy, indeed, to have the opportunity to do to.' Therefore, my Lord, though I could shew effectual cause without, yet I hare the Plaintiff's affidavits, which, if it is necessary, lam ready to produce to your Lordship. . " Another reason, which I trust will prevent your Lordship from granting this rule, is the letter, which Cohnel Wardle thought fit to write a day or two after the trial 44 to the people of the United Kingdom of Great Britain," forsooth. Id aired pellUbll [The Attorney-General here read this letter, which has appeared in all the newspapers.] Then, my Lord, it appears by this letter that Colonel Wardle kr.cw all that had been sworn against him, add-be Ls the people of the United Kingdom that he re peatedly intreated my learned friends to call those !vitnesses, whose affidavits are the ground of the pre sent application. What then becomes of this snivel excuse, that he had not an opportunity of corn. n;micating with his Connsel ? that he was taken by surprise ? He does not tell the people of the United l'r.gdom this : he tells them he expected that would be proved which was proved, and had therefore sub wand these witnesses, whom his Counsel refused to .all, But his three Learned Counsel told him that 1 1%. Clarke and Daniel Wright, not being contra ictcd at the trial, not having their characters im reached there, would not be believed upon their oaths, that there was no necessity to call any or either the defendant's witnesses ! I must do justice to my I:..,rned friends : while Mr. Serjeant BEST was ad- Qessing the Jury at the trial, Mr. PARK whispered to P-e that he had been placed in a very awkward situ -.a, having received' a note from Colonel Wardle, mg it to his Counsel's direction to call his wit or not, which note it was now too late to corn n.,,:cate to the Learned Serjeant ; and yet, now it is J, that the d:fendant gave his Counsel• an absolute ci:rioion to call his witnesses ! When these facts, kr,t)v. n as they were tp Colonel Wardle when be male his application to the Court, are mentioned to your Lordships, will yon grant the new trial which is now sought for ? lam confident in my own mind ;hat your Lordships will not. " And now, my Lord, I will make a few compa • vats buween what Colonel Wardle says when he is r ; ot on oath, and what he says when he is ; between , :etter to the people of the United Kingdom and •.:- affidavit. His letter says, that his Counsel did :‘,t comply with his earnest request to call his wit ocsses ; and the present application is made upon the ground of the plaintiff's case taking him by surprise. When I read his letter to the people of the United Kingdom, I therefore expected to find is his affidavit copies of all the notes be sent in to his Counsel; but . , . . . . . . . . there is not a s in g l e i nt i mat i on i n t h e whole affi- No such peremptory instructions were give* tO me ration of the plaintiff , that he was to furnish these ar= davit that he sent them in; certainly not any wri- as Colonel Wardle's letter •stated ; but that was 'ex- ticks on or before the 9th of November before Mrs. ting, nor, I think, any direction. And, if we plained by his-affidavit. He was not in Court, and Clarke knew Colonel Wardle." Mr. Parke then ob- . Confine ourselves to his affidavit, it runs :—that wh e th er he gave such instructions, I know not. If served that, with regard to the surprise upon Colonel he was not in Court (but his Attorney was) and had they had reached me ; I should in all events, let the Warble, as far as his Counsel were concerned, he felt not therefore the opportunity of consulting his Coun- consequences have been what they might, have called himself called upon to state the transaction precisely eel personally. No !—b ut h e k ept up a constant M a j or D o dd ; b ut conce i v i pg i t was ent i re l y l e f t to as it happened, that no mi sta k e on t h e su bj ect m i g ht correspondence with them ; an d sa y s , i n hi s l etter to m y di scret i on , I certa i n l y wou ld not pl ace M a j or rest in tne minds of the p u bli c . M os t cer tainly he the people of the United Kingdom, that he knew Dodd —" , had never got positive directions from Colonel War what was going forw ar d i n C ourt . H e i n d ustr i ous l y L or d E LL k s ioßnixft.-..g That may be a very dle to call witnesses. His Lea rne d F r i en d, the At says in his affidavit, that the witnesses who were exa- good reason of Prudence ; but it is no b ^round for a torney-General had, when Mr. Serjeant Best was ad mined were subpoenaed by the plaintiff; and it is new trial." , dressing the Jury, asked him (Mr. Parke) whether only by the accident of his having let the fact slip Mr. Serjeant BEST" I s ubmit to your Lordship, they intended to call any witnesses. It was then that, into this letter of his illti the peopl e of th e United that on the trial the Court and Jury were not put in in answer to this question, he stated to the Attorneye Kingdom, that the fact of Colonel Wardle himself complete possession of the case; and that itwas impos- General that he had got a note, leaving it to his ells having subpoenaed these very witnesses at the trial, sible that we could have got at the filets of which we cretion what to do, and that he was at a loss how t o came out ; and this chews that the Colonel knew that are now in possession earlier than we did. It act, as Mr. Serjeant Best was speaking. But this the transactions with Illingworth and Glennie were .. will be a very awkward circumstance if the parties was not the ground upon which he rested for a new i to be brought forward ; and therefore he had sub- who are A present indicted for the conspiracy should trial. The grounds were, first, the facts that had pliznaed both. these persons, besides Mrs. Clarke and come to suffer judgment with the fruits of that con- been discovered, arising out of the testimony given Major Dodd, to give their account of these transac- spiracy in their pockets. It will be taken into cunsi- by the plaintiff's witnesses, to which, of course, the tions. I appeal to your Lordship's recollection—to deration too by the Court, that the Jury were hours attention of Colonel Wardle could not have been pre. the recollection of the Counsel, and of every one of in deliberation. on the present cause ; and that with viously directed ; and secondly, the answer which those people of the United Kingdom who were in respect to the testimony of one of the witnesses, after had been put in to a bill fi led in Chancery, by which Court at the trial, and of whom t' here are so many in what has passed in another place, no credit can ;it appeared that there was no account with Colonel Court to-day, whether I did not—not once, not twice, possibly be given to her. It was carefully proved !Wardle stated in the plaintiff's books. but over and over again, till I told my Learned on the trial, by • Mrs. Clarke in particular, that no I Lord ELLENBOROUGII—" But, if you thought it Friend near me (Mr. Darrow) I felt I should fatigue credit was ever given to her ; because it was : necessary to wring the conscience of the plaintiff by your Lordship with the repetition —state that my facts very well known, that if credit was for an in- ' . an answer in Chancery, you might have moved to were to be proved by three witnesses ; but that I scant given to the party for whom goods were : put off the trial till that answer had been obtained." should not myself call the third of them, Major Dodd, i furnished, it had been decided by your Lordship that ,‘ Mr. PA tticE, leaving that point, next adverted to the because he was the intimate friend of the defendant ; ; any promise of payment by any body else must be ! testimony of Daniel Wright, who had said, that the but if Dodd was called by the defendant, I pledged lin writing. Mrs. Clarke knew this, and therefore en- ! Plaintiff would not have trusted Mrs. Clarke with a myself to extract' a corroboration of my witnesses' • deivoured to make out that her acquaintance with i farthing, in which he wes corroborated by Mrs. testimony from him ; and if he were not, I said that Colonel Wardle began before any order which had ! Clarke. Yet they could now produce forty or fifty that very circumstance would be that corroborative , been given to the plaintiff ; but upon her cross-exa-1 hail pieces, in which the Plaintiff had become bail for testimony. At all events, therefore, I had a third I mination, I extracted from her first, that her acquain- ; Mrs. Clarke. witness to support my case; and I courted the other tance with Colonel Wardle began in the autumn, ! Lord. EI.I.TNBOROUOII-46 Yes ; but the Plaintiff side to call Major Dodd, and stated that no incident which she said she considered to be September or Oc- I knew that he was perfectly safe in doing that, as Mrs., in the cause could gratify me more than such a mea- tober, and afterwards, that it did not commence till Clarke had before pleaded her coverture, and with sure. the 16th of November." I success." " Although Colonel Wardle has reserved to him- " Lord ELLENBOROUGII. —44 That went to the ! Mr. PARKE, in continuation, remarked, that he self the privilege of swearing that since the trial he Jury, as a contradiction in her testimony, and their rather imagined his Lordship was giving more cre has changed his attorney, substituting Mr. Ellis for verdict was pronounced, taking that into considera- dit to the Plaintiff for his knowledge of law than he Mr. Corfield, yet he does not pretend that that was tion," I deserved. in consequence of any negligence in Mr. Corfield ; Mr. Serjeant BF.ST.- 44 A great part of the plain- Lord ELLENBOROUGII-6! Tradesmen generally are neither does he say that Mr. Corfield was guilty of tiff's goods was sent into Mrs. Clarke before her ac- sufficiently acute and well advised on those points in any infidelity in his representations of Colonel War- quaintance with Colonel Wardle ; and this was got which they are peculiarly interested." die's wishes to his counsel. There is, therefore, only over by saying they were sent on hire. Here Mrs. Mr. PARKE allowed that the coverture would clear the dry fact of his having changed his attorney, which, Clarke and Daniel Wright contradict each other, the Mrs. Clarke's bail ; but there was another fact to 'be by the bye, is a very convenient shifting of the scenes, former swearing that they were returned, the latter considered, viz. that, as appeared from the affidavit o f since it would have pressed too hard upon Mr. Cor- that they went in part of the order. Ido not bring Curt, the Plaintiff had given his own draft or check field to have heard me say, sitting under me where all these circumstances forward as the ground for a for £lO6 to Curt, for the grates and fixtures of the Mr. Ellis does now, that if what Colonel Wardle says new trial, but as corroborative of those circumstances house at Westbourne-place ; a fact which would be is true, he has been guilty of gross neglect. But I I upon which Ido ask for a new trial. I have since proved likewise from the banker's books, if a new am consuming your Lordship's time in saying that procured the affidavits of Curt, and a woman of the trial should be granted ; so that here there was not Colonel Wardle knew every thing that was intended 1 name of Mumford, servant to Simeon Bull, and a only parole testimony but written evidence, which to be proved against him at the trial, and that no positive affidavit of Sir Richard Phillips, all of which could not be mistaken. • surprise"— for the present I must take to be uncontradicted. If Lord ELLENBOR6UGH." This might have con- Lord ELLENBOKOUGII 44 What fact of surprise is your Lordships feel that it will advance the ends of 1 stituted part of the 4.500 admitted to be due from relied upon to-day ?" justice to do so, you will grant me a new trial ;if that 1 Mrs. Clarke to Wrieht. But what is this Curt ? The ATTOINEY-GENERAL- 4 ' I will tell your Lord- verdict, upon which a jury paused hours before they Mr. PARKE.—" The landlord of the house at ship. The defendant's affidavit states, that I never 1 gave i t _____" Westbourne-place, my Lord." . having contracted any debt with the plaintiff, the evi- Lord Eeeeseonoucts....." I beg that may not be Lord ELLKNISOROLGR.—" Was it not the most na . • deuce adduced upon the trial of thi s c au s e took the understood ; it would be a most dangerous doctrine. tural thing in the world for you to have applied to deponent completely by surprize.' He swears this. —lt might be for the particular advance of justice, hiM previous to the trial, and to ascertain what he . My Lord, I beg to suppose your Lordship was try- but certainly it would not for the general. It is not knew of this transaction ?" ing the defendant for wilful and corrupt perjury, and because evidence which is unimpeached at the trial is Mr. PARKE expressed his hope that the Court wo u ld that this was the perjury, that the evidence in this afterwards contradicted, that the Court grant new not think him vexatiously persevering upon thi s case. cause had taken the defendant completely by surprise. trials." It was his duty to state the facts which had been die.- Consider this, my Lord, and then figure to youriell Mr. Serjeant Base--" But in suspicious cases, where covered subsequent , to the trial. They had c e rta i n l y that in order to prove that assertion false, I had read the evidence is afterwards clearly sliewn to be false, a disclosed new facts in contradiction to the testimony nothing more than this letter to t h e people of the Inew trial may be granted ; and we rely upon whet given by the plaintiff's witnesses ; facts which they United Kingdom, stating, that the defendant had sub- Sir Richard Phillips t 2 t could not have well anticipated, .as they arose out of pcenaed all these witnesses to meet a cas e which took i Lord ELLENKOROLIGET." Certainly not. It would the evidence for the plaintiff ; and they had, besides him by surprise. Could your Lordship have apy then give you an opportunity of stringing a whole this parole evidence, discovered some written testi doubt that he had sworn falsely ? bead roll of witnesses together, procured since the mony, which carried great weight with it. He, there " The Defendant was not in Court ! No ; he was trial, to answer each his own particular branch of the fore, submitted that a new trial ought to be all owe d. in the Hall, walking up and down with his witnesses. plaintiff's case. If the affidavits of Mumford and Bull Mr. Meneyaer, on the same side, began by ad- He had not an opportunity of consulting personally j are material falsifiers of the plaintiff's case, and if you venting to the observation of the Attorney-G enera l, his Counsel ! Should not one have expected that his Iwill skew me that they could not have been procured that this was a scheme of Colonel Wardle's t o get at affidavit would have gone on to state that he had no I before the t r i a l—" the evidence upon which the plaintiff and his wit communication with them too ? But no such thing." Mr. Serjeant Beer—" I think they are, my Lord. : nesses meant to rest their defence on the indictment Lord ELLENBOROI:GII.—" Does he state where he So far f rom wriglit'e refusing Mrs. Clarke credit, it !for a conspiracy ; and remarked, that Colonel War was at the time ?" • appears by Bull's affidavit, that lie recommended her dle had committed himself as effectually by this de- The ATTORNEY GENERAL.—" No, my Lord ; but I to him as a tenant," vice, if it was one, as he could have hoped to have his two witnesses, Dodd and Glennie, swear that he Lord ELLENnoRoITUII-4 Aye, that's a very dif- committed the other parties, as lie had told th. d r _ sent them into Court." I ferent thing." cumstances upon which he intended to rest the prose- Lord ELLENBOROUGH.—" He had an opportunity Mr. Serjeant Beer— ,, And stated, that he was to cutisn. But the question in the case was, whether of personally consulting with his Counsel, if he had furnish a house for her." there had not been sufficient new matter•discovered to chosen to come personally into Court." Lord Eetateuottousai — 46 The whole effect of that lay the foundation for a new trial? With reg ard to The ATTORNEY GENERAL—" And if he had chosen might have been to give her a false credit, in order to the circumstance of a want of the means of commu not to exhibit himself in Court, one or other of my hold up her head, that he might get his £5OO from nication with his Counsel, under which Colo ne l W ar . Learned Friends would, no doubt, under the particu- her." dle stated himself to have laboured, he might have far circumstances, however irregular it is for Counsel Mr. Serjeant BEST—" If the rules of the Court of been in the hall, and yet deprived of the opp ortun i t y to leave the Court to consult with their clients, have, King's Bench are against me, Colonel Wardle must of having that prompt and speedy comm un i cat i on on the present occasion, done so." submit to pay the .C 109.5. At all events, we may say which the nature of the evidence, as it p rocee d e d, Lord ELLENBOROUGII.-44 I have been pressing here what has been said elsewhere—that infamy, and might have required Colonel Wardle could not ex these circumstances, from a desire of not unnecessa a great deal of it too, must attach somewhere ; and, actly know the circumstances which were to be b roug h t rily compelling you, Mr. Attorney, to bring forward at any rate, Colonel Wardle has an opportunity of forward against him. The interval between t h e de your affidavits ; for it is a grievous hardship, that saying, that the same conspiracy which has obtained mind anon the trial was short, and Colonel W ar dl e the defence of persons criminally indicted, should be a verdict against him before, has been exerted in the had not much time to prepare himself. The d e m an d wormed out, by a sort of " _fishing-bill," as you call affidavits which are now at hand to oppose the pre. was made on the Ist ofJune, and on the 3d of J u ly t h e it ; and, therefore, unless the reasons to the contrary sent rule ; and, I trust it will be exposed by the same cause tame on for trial. The demand was genera l. Lord ELLENBOROL'GU—" He might have called for be strong and urgent, I would not compel you to produce your affidavits. Brother Best, what circum- indictment." a bill of particulars." . Mr. PARK would trouble the Court with only a few Mr. MARRYATT, in continuation, observed, th at t h e stance of surprize is there, upon which you rely ?" After the experience which he and his plaintiff ' s w i tnesses had stated that the goods hired. were converted upon Colonel ardle s undertaking, Mr. SerjeantßEST—" My Lord, I stated at the time observations. Learned Friend (Best) had attained, it certainly was W ' into goods sold. Now, it appeared f r om t h e p l a i nt iff' s that the ground upon which I moved for this new trial, not to be imagined that they could with confidence answer to a bill in Chancery, as late as October la s t, was the evidence I had since discovered. The reason ask for a new trial upon parole evidence, which might why I would not call Major Dodd at the trial was, be- h ave been that Wright had no account at all in his books with been produced at the trial which had already , Colonel Wardle. contradicti on to the cause I thought I owed it to him to protect him from taken place. But there were facts which Colonel There was a whole case of the pleintiff generally, and of each of any imputation, which might be cast upon him from 1 Wardle could . not have produced at the trial. He I his witnesses severally. It appeared from the evidence the want of corroboration, under which his evidence it would be recollected, but a very short time to I of Curt, that the plaintiff' was proceeding to take would labour, The new evidence which I now possess, I had, prepare himself. It must be allowed that he would ;measure for carpets and fenders for the house inWest my Lord, could not have been brought forward at the have been a driveller, if he had not known that Mrs. , bourne-place, before Mrs. Clarke knew Colonel War trial ; for it came out in consequence of evidence which was given then. As to the indictment for ai h . ;Clarke was to be one of the witnesses produced against dle. The plaintiff had subsequently, down to Mid of;summer last, paid Mrs. Clarke's rent. He therefore im. But then lic could not have anticipated the pre- I intended to g ive credit to Mrs. Clarke, for, if conspiracy, Icon only say, that neither I nor either I my learned friends who are with me had any hand : cise nature of the evidence which she would give.— been bound by a particular . ngagement with With resp ect to that evidence, it was material g t a o chlee;lll?idy in advising such a measure. I was certainly aware : the landlord, he might. have allowed him, unless he attend to dates. Mrs. Clarke, after shu ffi in of it when I made this application ; because I knew to give Mrs. Clarke credit, to have distrained `good dea l, a . sto the time when she first became ac- it had been moved hither by certiorari ; but I should for his rent, and sold the furniture instead of paying quainted with Colonel Wardle, at last said it was a be content to postpone this application till the indict- about the 16th of November ; and yet Curt swore i ' wished him in money. It then appeared from the Sheriff's moot was tried." books that Wright had been bail for Mrs. Clarke in . his affidavit, that previous to the 9th of that mon g th o. Mr. Justice Gaon-4 , But then the plaintiff would . several action another proof that he had given her be out of his debt all the time." he was told by the plaintiff Wright, that he was is, ; ing to . tak e . measure for the carpets and fenders to be Mr. Serjeant BEST—" But my case, my Lord, credit contrar y to the ass ' that there is no debt due to him." i put down in the house in Westbourne-place, for Mrs. ' y melon of Daniel Wright, that Clarke. If Curt therefore spoke true, it was clear, his brother would not have trustedher for a farthing. Another material fact was, that Wright, haying de- Lord Euuraotiouou-44 The Court will not - urine- ! from the ainuff's own declaration, that he was to cessarily strip him of protection. We now call upon pl furnish the house on Mrs. Clark's account, before she bited the goods to Mrs. Farquhar, which probably you to (thew the fact of surprise and disability before became acquainted with Colonel Wardle. I : meant Mrs. Clarke's mother, he had insured them for the trial, with ordinary diligence to get at the notes - 1 nary evidence which you have since procured." Lord ELLENBOROUGH.- 44 She said at the trial that her, and also insured for her other property, which • ' Mr. Serjeant BEsr—"We owe much to our clients , Wri g ht had g iven her furniture on hire." she had procured from some other quarter. " Did not this powerf u lly but that duty paid, we owe something to onrselves: Mr. PARKE- 44 Yes ; but Curt swears to the decla. ' Lord ELLEN SOROUGH+ we or( h:r; the apt Icr ca C I that no i tre: call tei Pk l that ton beli cbr dh tha son he an) sia PI di snc 101 ro; tin ET ces cc Ivr bit ner the irfr test 1' we in tha the 21t! de s}: nc th th 112 I L C of of p k a 1 I. rtl4 .1 - - 1" ~ • f • 1