The Statesman. — London, England, 1809-11-24 00:00:00

- --: *lto • that he knew the peril to which he oust be ex. posed, indicted as he and his uittiesses went fur a compiracy, by coining forward to state in thi s . civil cause, all they knew of the transaction; but ii such' was his consciousness that his eslitr'eas founded upon truth, that he would run all aisttls, and state the whole of his ease iii shewing4usse against this rule. !lad all these facto bat been known to the Court wlt n the motion wils abode for the new trlal, the Court would never bare granted the new trial. The Arvin NEY-GENtRAL then referred to the letter of Wardle, addressed to the People of the United Kingdom, which he gait' was penned on the day of the trial, and published the day following ; he ridiculed the idea of this Ad. dress to the People of the United Kingdom, upon the subject of an Upholsterer's bill, wile had brought an action against a gentleman, oho after proinisin,z tip pay him, had refused to do su, and which a Jury had, by their verdict, said he ought to do. The Letter was— " TOTH!: PEOPLE OF THE UNITED KINGDOM. " Parliatoeutary conduct has been by the &uproot ikon of so many of my countrymen, 1 feel myself called upon, insoinequeoce of an event that yesterday took place,ismoriliatelv to address yououid that in vindirat ion of my character,renderrdopeo toutinck from the verdict of the Jury up.ist the evidence of Mrs Clarke,and Mr. Wright. the bro ther of ter . uosol-terer, in a came in which I was clef lidant, in the court of King's Ba nes. The dot it of the et Men, e the public prints will afford. It is with ra.• ea oldie, that my Goemei,satialled in the r mad. that the Jury would out, upon suet te-oimnly as nod been given by toe Plaintiff's brother a t 4rs. Clarke alone. fin', a verdict again t me, Aid not co not, with my entreaties (repeated to farm in withal: dur- IU tae trial, in the strnagest terms) that Major Dodd, Mr. (Howie and other respectable witnesses rubpcmitted by Ilse ana:ef anti invbelf, wipt be cad tinted, as I knew their teatusoay would be ruanded in truth, :ail in direct cou:ra di:tion to w:tat huAl been sworn hgniost ow. Under such ciresonsinne" the verdict was obtained. there only remains for tae now, bet ir • my God and as, country, to deckire, flat It we- obtained by perjury alone ; and I an pledge in,- self to prove the fact toe earliest opportunity the law wit. allow me to do so. Atutiandy, therefore, do I look forward to that pe;itart; awl I trust that till then tie public will sus pets! th:ir judgment upon the case." Now, the AtTott•ilLY-GKIIIZRAL sail, that this letter *as not true, fur that Colonel Wardle did not earnestly intreat his Counsel in wilting to c.,11 these wituesses, fur that he lett hi; Cuunstd to their own discretiou whether they would call Major Dodd and the othec witnesses or not, of which there was the beet prod that could be given, from an incident which happened while Mr. Serjrant Best was addressing the Jury in behalf of Culotte' Wardle. Ile, the Attorney-General, leaned to. wards Mr. Park to learn whether any a witnenies were to he called for the Defendant or riot ; when Mr. Park said he knew not what to do—he hating opportunity of consulting with Mr. Serkaut Beet, while he was addressing the Jury ; and he, Mr. Park, had been left to his own discretion, as well as Mr. Serjcant Best, whether they 'heel. call wit nesses or not. But now Col. Wardle would have it be believed, that he did give these positivedirections to his Counsel which he did not, and he affected to have been surprited by the verdict, and by the evidence, when there was no foundation fur any such sitrpriz , .; and if the Court were now sitting in jndgmrnt upon Cut. IVardle upon a charge of perjury, upon the affidavit which he had made in the support et the application for a new such was the state of the facts, that the Court won't' find it tliffieult to declare that Colonel War. die ought to be acquitts II of that utrenc...—The Ateiruev.General thin took a view of the whole of the elcience in this case, and declared, that such was the state of the case, that note ithsrand ina the boasting of Colonel Wardle of what be w odd do, Mr. Wright and his witnesses looked Jr a ard with eagerik is to the trial fur a consiii. acy, and were cetifident of ail acquittal ; so con fident, that they desired him, notwithstanding the elvaatage it might give to Colonel Wardle, to state the whole of their affidavits made in opposition to this rule. The Court held, that the stating of the affida. vita made in a civil cause, by those who were Ik. fondants in a criminal soil, arising out of one end the sante set of transactions, a (mid be bringing the parties improperly into jeopardy, and creal. lag a dangerous precedent ; and therefore held that these affidavits should nut be read. Mr. Serjeint lit:sT.then entered upon time case in support of the rule, and made a long and very able speech to show the necessity of a new trial being granted in this cause. He said that the ground on which he hail put this case was, that the verdict had been obtained by evideuee 410 which, the Defenilaist could not be aware, mg therefore it was a surprise upon hint ; and that-fie consequence of what was I W Ohl at the trial, mod upon whirls the verdict was founded, the Defen dant was lAI to seek, and had the good fortune to find, muds new matter in evitl-nce, such as if it had been tilf.red at the trial, the verdict would have beers fur the Defendant. He thanked the' A Money -General, fur be insitrisonte - Manner itt which he had spoken of the Curiasel for Colonel Wardle, the colidurt of chose case had been n. trusted to hiiu ; and, as to the idea of p•.sitivr, instruction+ to call witnesses on behalf of Colonel Wardle, he haul to declare, for himself, that he hail received nu such iiistructiona, nor did he believe that either of the Learned Counsel who were with him in the CAU‘C, had received any su c h in_ strut-Wins. flail he received any such iii-tree. lions, he should have followed Own; at a ll 1 1 , 1 . Zards ; bat be bad been left by Colonel 11 ardle to his own discretion, and although he knew that Major Dodd could have contradicted Mrs. Clarke and Sir. Daniel Wright, yet it appeared to him to be rashness to call Major Deihl to be con. fronted with Iwo witii..sses, and two such wit. nrsses as aim. Clarke, without being aware that there was any other witness to nipped Major Dodd', testimony. But mow Oben Wisq abundance of evidence !ci supporl . ite lh ti.on referred to the affidavits of Major Dtatla4 Mr.- (; f o rme, Mr. Curt, and fir Richard Phillips, alt not which are already before the public, having lie. ii detailed at the time of moving fur the rut... I; *risen proceeded to maintiin that there would a failure of justice, if there should not be a new trial granted in this cans'; (ur that Mrs. ('as ke and Ovoid Wright hid been materially co tradieted by the affilasits to which he had re f,.:4013 and on which this rule fOr a new trial bad be a utitaloed. It would be a singular tiling if TRI it should turn out eventually that these parties should be convicted of the conspiracy with which they stood charged, and at the same tin*, this new trial should be refused ; fur, in that case, Mr. Wright wunld be convicted of having obtaised a verdict by conspiracy, and been allowed to keep its his pocket the money, although convicted in a crime by his endeavour to obtain it. He main tained that upon the whole of the affidavits, it was manifest that credit was given, in the first instance, by Wright to Mrs. Clarke, and that charging Colonel Wardle with the debt, was an after-thought ; and if credit had been given to Mrs. Clarke at first, it was impossible to Charge Col. Wardle in the second instance, because IC he had undertaken, as clearly ho had not, that undertaking would have been void by the „Statute of Frauds. The pressure of this point was felt at the trial, and therefore they hit upon the ctpedient of saying, that the first goods whit* had been sent in by Wright to furnish the hogs. of Mrs. Clarke, before it was pretended that Col. Wardle ever saw Mrs. Clarke, were not sold, but sent in upon hire ; and upon this Mrs. Clarke and Daniel Wright were at variance in their evi dence—the one saying that they were never sold, but remained upon hire; the other saying that they were upon hire at first, but that they were afterwards included in the goods for sale. The Learned Serjeaut. then reminded the Court of the manner in which Mrs. Clarke had at first sworn at the trial, that she became acquaint ed with Colonel Wardle in the autumn, which autumn she defined to be the months of September and October; but being reminded of the letter of a person of the name of bl‘Callum to her, as the means by which she became acquainted with Colonel Wardle, and which letter was nut written until the 16th of November, she corrected herself ; and so it stool as a thing impossible that Wright should have trusted Colonel Wardle in the first instance, for many of the goods had been sent in before that time. If the rules of the Court were such that a uew trial could not be granted in this case, because Colonel Wardle should have made his defence before the Jury, upon all the grounds on which he moved for the new trial, Cu. lonel Wardle must submit to pay the 10501. fair which the verdict had been obtained; but so far was the case from being clear to the Jury who ttied it , urea although nu evidence was offered Os behalf of the Defendant, that they took up atone hours to deliberate, plainly indicating much doubt its the case upon the Plaintiff's own shese. tug; what might have been oxpected if there bad been laid before them the evidence now laid before the Court upon the atii lavita ? As to the confidence which the Attorney General ex pressed his Clients to feel at the approaching trial fur conspiracy, ho had to cry, isith a firtimess equal to that of the Attorney Ucaielal, that Col. Wardle had as eager a fur the arrival of the hour of that trial as Air. Wright and his witnesses; and that whatever might be the event of this motion, the facts of this case would remain as they now stood ; and he declared, on behalf of Colonel Wardle, that this case was sup ported by the same conspiracy founded on the same perjury for which Colonel Wardle meant to bringing the parties to justice. After the observe lions which had fallen from his Lordship,he would not occupy the time of the Court any longer. Ilis client, he was afraid, most submit to love these damages ; but he was willing to make this sacrifice under a cutiLleace that he *wild have an upper Utility of spewing that a font conspiracy haJ been formed against him. He should nut reply to the severe remarks which had been made by the At. iorney-Gctscra', but should merely observe, from the affidavits which had beets produced, that, as had been said on another occa , duri, '• a great deal of jaunty must aline!, somewhere." Mr. PA RI followed on the same side. He ob served, that it was proved on the trial, that it was not till the 16th or 18th of November, that Sl r. Wardle was introduied to Mrs. Clarke ; and )et Curt says io his affidavit, that he met the Plaintiff, Wright, on the 9th of November, go. ing to Westbuerise.pl ace, fur the purpose, as Wright stated, of taking measure fur the carpets and fenders in Mrs. Clark..'s house at that place. ll this evidence be tru3, a by then this mast Wright had claws/lodged that belied begun to furnish Mrs. Clarke's house, and that some time before she knew such a person as Mr. Wardle. Lord Et.r.s.ataosounn— It appeared on the trial, dig Wright had sent in several articles before the tkAodaist was known to Mrs. Clarke, and these were directed to be struck off the debt. Mr. PA lei.— Yes, my Lord, but servants' beds were no ntiuned, and nut carpets, of which uc had heard much on the trial. Thu Learned Counsel then alkded to his on n conduct on the fiat, and observed, that' he had 'ffever receteelf any perempti,ry instructions from his client to call Messrs. Glenn: and Dodd ; he understood that that was le. t to his on ti and his Learned Friend's discretion. He did nut mean to rest the claims fur a new trial on the ground of hi, client having bean taken by surprize, bust rather upon this very circumstance of the affidavit , , stating that Wright had given credit to her, which was a fiat contradiction to what appeared on the trial. Be. sides, his client bad 61,4 a Bill in Chancery against Wright, and it was a most important fact to ob serve, that Wright, in his atisner to that bill, ad mits that no credit was given to NVardlo in hit books. In them there appeared nothing of the thbt which he claimed. Lord ELLENBOKOUGH.—The Defendant might have filed his bill befure the trial, and would then have obtained this information. The Court can nut look at (hat our►. Mr. PARK then submitted, that were a new trial granted, they sliuuld be able to prove that Witglit had been bail fur Mrs. Clarke in near forty actions, for debts of vartuni amount ; and hue was Vint consistent with the pretence that he %.,ulll nut t ost her Lord ELLERausiguals.—lt was easy to suppose bit Wright knew iie bAssoc bail for her without any risk ; he kn w Cie , aas a feasase coarerle, an.l nut liable. People in his way are tuterabiy acute in thirst. matters. Mr. PARK w unltl truubic the Court with only r A frititLf A %I one more observation. From the affidavit of Curt it appeared that Wright actually gave his draft to the amount of 1061. to Mr. Curt for the fixtures in Mrs. Clarke's house at Westbourne-place; and also that Wright actually paid the first and second quarters runt fur the house, by drafts or checks on his own banker. These checks could be prodaced in Court—they were evidence that 6ould not lie— much stronger than parole testimony, to skew that Wright bad mixed himself with Mrs. Clarke's trans actions, and had credited her to a great extent, long before she knew Mr. IVardie. All this spewed that he was in the constant habit of giving her full and ample crediC Lord ELLtskaoaotiou—" Wu not this Curt the most natural witness fur the Defendant to have brought forward at the trial ? One would have thought the Defendant's attention would hare been naturally directed to such a witness." Mr. PARK concluded with submitting to the Court, that these is titter' documents, which could not lie, were much stronger than any parole evi dence, in support of a new trial, in order that the ends of justice might be substantially at tained. Mr. MAIRTATT, on the same side, began by adverting to the observation of the Attorney-Ge ►►eral, that this was a scheme of Colonel Wardle's to get at the evidence upon which the Plaintiff and his witnesses meant to rest their defence on the in dictment for a conspiracy ; and remarked, that ' Colonel Wardle had committed himself as dice- Wally al this device, if it was one, as he could hare hoped to have committed the other parties, as lie had told the circumstances upon which he in. tended to rest the prosecution. But the question in the case was, whether there had nut bees, sufficient new matter discovered to lay the foundation fur a new tri ►I ? With regard to the circumstance of a want of the means of coum►unication with hisCouti sel, under which Colonel Wardle stated himself to have laboured, l►e might have been in the hall, and yet deprived of the oppor• unity or having that prompt and speedy communication which the na ture of the evidence, as it proceeded, might have required. Cul. Wardle could nut exactly know the circumstances which were to be brought for. ward against him. The interval between the dc. mend and the trial was short, and Colonel Wardle had not much time to prepare himself. The de mand was made on the Ist of June, and on the 3d of July the cause came on fur trial. The demand was general. Lord ELLENROROCGII---" He might hare called for a bill of particulars." Mr. MARRTATT, In continuation, observed, that the Plaintiff's witnesses had stated that the goods hired were converted upon Colonel War. dle's undertaking into goods sold. Now, it ep. pears I from the Plaintiff's answer to a bill in Chan. cery, as late as October last, that Wright had no account at all in his books with Colonel Wardle. There was a contradiction to the whole case of the Plaintiff generally, and of each of his witnesses severaily. It appeared from the evidence of Curt, that the Plaintiff was proceeding to take measure for carpets and leaders for the house in West hounu•.place, before Mrs. Clarke knew Co lonel Wardle. The Plaintid• had subsequently, down to Midsummer last, paid Mrs. Clarke's rent. flu therefore clearly intended to give credit to Mrs. Clarke, fur if he had beefs blimiol by a particular engagement with the landlord, he might have allowed him, unless he wished to give Mrs. Clarke credit, to have distrained for his rent, and sold the furniture, instead of paying him ir► money. It then appeared, from the Sheriff's books, that Wright had been bail for Mrs. Clarke in several Reasons, another proof that he had given her credit contrary to the assertion of Daniel .Wright, that his brother would not have trusted her fur a farthing. Another materiel tact was, that Wright, having debit►d the goods to Mrs. Farquhar, which probably meant Mrs. Clarke's mother, he had insured them foe her, and also ►n. mired for her other property, which she had pro cured from some other quarter. Lord ELLEinsonuseett—" Did t►nt this power. fully call for yuur attention before ? You might • have gut at these circumstances by the u.e of res. I sortable and ordinary diligence. By reasonable diligence you might have gust at all of them except the answer in Chancery ; and with respect to that, the trial might have been put off till the answer came in." _ I Mr. MARRTATT further observed, that Curt had contradicted Mrs. Clarke by the deposition in his affidavit, that Mrs. Clarke had told him that the new house in Westhourne.place was to be furnished by Mr. Wright, and nut by Colonel Wardle. Daniel Wright had stated, that th. goods which had been originally gisen on hire, ' had been converted into g t ool, sold, and placed to the accuutii or Colonel V 4 ardle. Yet if appeared from Mr. Wright's oun arbilksion, by his answer in Chancery, that there was no account with Col. W. in his books. lie said that the Plaintiff wonld havegiven nu credit to Mrs'. C. and yet it appeared that he hail been hail fur her in many instances. Sir R. Phillips hail been engaged in a treaty with Mrs: Clarke, for the publication of a certain book, and had afterwards been applied to by a N ..blr Person, whom he need nut name, fur the sup pression of the hook. Sir Richard stated, that in the course of the transactions respecting (his pub. !legion, Mrs. Clarke Ihid declared that she was indebted to Mr. Wright fur this very furniture.— These facts bad been dicovered since the trial, and sonic of them could not have been foirid out be. fore by any reasonable diligence. The Defendant then, he submitted, had new matter to offer, which he could not have before discovered, in ad. dition to several circumstance which he might, perhaps, have found out— and was, besides, taken by surprise. lie therefore, hoped that the Rule would be made alisulnie, and a new trial granted. Lord ELLEMBOROUGH said —" I think that the Court would establish a must dangerous prece dent, much to the disadvantage of the administra. tion of justice, if this attempt In obtain a o v a, trial were successful ; fur then it would only re main for Defendants to lie by, to hear the case of the Plaintiff, and, without bringing any eve. deuce at the trial, to make an application to the Court, un the ground of present capacity, to • . , , - contradict the facts swore to at the trial, 'And require that the case might be bead a second :time upon motion for a new trial, on the grew's' of the present capacity of the Ddendant, who had neglected to use ordinary Viligenre in his defence at the trial. Whereas the Court, in granting a new trial, expects that the party moving fur it, should have used his opportunity of bringiug forwerd his defence at the trial ; for the Court expects that the party shall nut be deficient in the ordinary and customary attention to the sub. jcct of his defence at the trial. But %here that attention is bestowed, and the party is actually surprised, the Court, his Lordship slid, in case the party was actually surprised, by the course: which things bad taken, was in the babit,of granting a new trial." But, his Lordship asloed, what pretence of surprise existed in this case, in which a party, determined to use ordinary dili. gence, might not hare been prepared to meet the proof. here his Lordship went over all the heads of evidence which had been stated in the af fidavits to he new in point of matter since the trial. That of Mr. Curt, who stated facts concerning the Plaintiff's having taken a house of him fur Mrs. Clarke. Cul. Wardle knew Curt to be the laud. lord, and therefore there was no pretence for say ing, that it was owing to rurprise at the trial his evidence became necessary; ho was twist naturally pointed out as a witness fur the Defendant at the trial, if he wanted to prove the facts stated in his affidavit; and as to what Mrs. Claiko swore at the trial, Col. Wardle must he supposed to have contemplated his relative situation with 51ts. Clarke, and therefore ought to lie prepared to re. fute her testimony, if she swore any thing that was false, relative to what passed between him and the Plaintiff; in OW presence of Major Dodd ; and as to the house utile!' Mts. Clark• occupied while Col. Wardle was argnainted with- her, thing could be more natural than foritim to look at the lease of the hustle, and then to have wil -1 (enacd the landlord, who would have related on the trial every thing which appeared its the affich. sit on that subject. Tois ars no ground of new trial on accouut of surprise, it was the effect of the Defeudant's negligence, and this in 'than was its that respect an application to the Court, nut tii administer relief to diligence or to vigilance, but to neglig ace and supineness. As to the subject of the assurance on the house being harged to the? D fondant, he was apprised of that by the bill of • Ideticulars of the Plaintiff's demand which had been delivered to him, and he might hare been piepared to meet it at the trial; and if the bill of particulars was defective, it must have beets amended upon summons taken out before a Judgo fur that purpose, but that article was disallowed by the Jury. As to the discovery which had beets made by Wright's answer to a bill which had been filed against him in Chancery, by which it had been said he admitted that Colonel Wardle was nut charged in his bucks, notice might have been given to Wright to produce hi< books at the trial, or the bill in Chancery might liave been filedsoon er, injunction night bare hers obtained against Wright's proceeding at law, until the coming its of the answer to that bill, and. therefc,re, that tumid be iso Inducement to the Court to grant a new trial. For all these reasons, the ground did not appear to his Lordship to be made nil, that the case at the trial came by way of surprise on the de- • • fendant,for there was couthing at the trial, to meet 1 , which the Defendant might nut be reasonably ex. petted to be prepared. As to his not having ay. tual consinutsiratiois with his Counsel, lie aught most potentially hive (bn, so, by taking about twenty steps to cone into Court ; fur it was net doubted that he nits %%elk mg in the Hall, and it appeared by the atlidavits of his own witnesses, that they were directed by him, to appear in Court; sod this farther appeared by Colonel Wardle's own letter. In short, the Defendant knelt the *note of the Plaintiff's case, and might hive been prepared to meet it, so that there was tics real grumpd fur a new trial, sod if the Court ' should g. ant one, there would be infinite tlangcr iu the precedent; for which reasons hi. Lordship was clearly of opinion that this rule ought to be duseharaest. Mr. Justice Gaon was of the same opinion.— There was sufficiant evidence given at the trial to sustain a verdict, and there was uo pretence roc sa)ing that defeudant had been taken by ser. prize, cons,quently he ought to have been pre pared to inert It ; and if he had not, but took his chance by resting his defence upon a speech to the Jury, without evidence, and afterwards re pented 01 that cu rse, and thought it would have been better fur h in to hive examined a itnesses, the fault was his ono, and that was no ground for granting a 'sew trial. lie wised with his Lordship in the obk•rvations he suede on the particulars of the evidence, and was clearly convinced, there ought to be no new trial in this case. Sir !inmost BLA NC said, that this application came tinder very peculiar circumstance:. it *4l l s very extrauldishiry, that this application for set. sing aside the verdict, on the ground of surprize, shoul.l come forward at a time when there was an indictment pending fur conspiracy. This cireum. stance alone would be sufficient to make the Court extremely cautious in granting the new trial. Ile took the rule, lionever, .to be, generally, that when an application of this sort was made, on the grutind of surprise, or evi.lenee discovered since dm trial, it was incumbent upon the party to show, that nu exertion of ordinary intlusti y itsid diligence could prevent them (sum such surprise, or have disco, sered the evidence in tune fur the trial. This was, however, not attempted to be dune on the present occasion. iie could nut have been surprised either as to the nature of the action, or of the principal witnesses that were to be called upon to pruve it. his attention, or the attention of his Attorney, should, therefore, naturay have been directed to the books of Mr. Wiight, wits testa:et to the per son to whom the credit was given, and to Mr. Curt, who was the I indlord of the house at West. I rue-place, who now had sworn about the pay .nent of money fur fixtures, and who might have b. en naturally supposed a person capable of gir. s ag information as to the delivery of tI e furniture i• his home. If new trials were to be granted in such a cue as this, when the party was not selr-