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iitet , his he K is ;tap- Pr" as . . r e i. sot, LAW INtELLItENCE. COURT OF KING'S BENCH, WritstlEmsa, N6Y:il3. WRIGHT v. WARDER. The Arroatter-Gattertat. rose to shew cause against a Rule moved for by the Counsel of Mr. Wardle, for • new trial. Ile said that the Court could grant no such Retie, unless Mr. Wardle pre vailed upon it to administer justice to him upon principles entirely different from its practice in or dinary cases. He was sure that his Counsel could have given him no hope in his present application. There were, he observed, certain facts, in which, if the Court hail been at first instructed, he was con lideut that the Rule could never have been grant ed. Those fuels he would now proceed to stute. Before any motion had been made in this Court, Colonel Wardle had preferred an indictment, at I licks's Hall, against Mr. Wright, his brother, and . 3lrs. Clarke, fora conspiracy to obtain the verdict ;.% en against him, under their Lordships; the; names ..1 those persons who had appeared in Court against aim were at the back of the indictment thus (Oul u- brought forward, but he did out indict any one of the witnesses for perjury. He hoped Mr. Wardle was now in Court, and that they were not always to hear complaints of absence, such as he lied taro-d. Lord Est.eallOttonaH remarked, that that could be ao ground for granting a rule to skew came. The ATTORNLY-GattaitaL agreed, that it could not; he proceeded to state, that some dark Mai. natation, were made against the Attorney who con ducted Mr. Wardle's business, and who was now discharged. Mr. Wardle did not swear that hr thought his (setae improperly conducted by hits ; but in the very act of his dismissal, as much was pre tended to be insinuated ; he complained of the per jury of the witnesses, but had not the hardihood to indict them ; and he had the fully to suppose, that if he could procure a trial, from which their testimony was excluded, ha could, by means of his own Mewls. carry the business all his own way ; was there eser such an impudent pro. caeding ? There was more of little cunning and in tilgne in this business than their Lordships could probably commis,. Mrs. Wright knew a good deal of the transaction, and Mr. %V. was told that, by preferring an indictment agsiisst the wituessea for conspiracy, he would not oaly prevent such witnesses froth appearing against him, but also pre vent Mrs. Wright herself. But there was more in Ibis proceeding. Mr. W. was desirous to know what could be proved against him ; and therefore he 'flared fur a male to shew cause. He hoped he was within hearing—if be writ in the Hall, he should bear what be had to say upon his conduct ; he would therefore repeat, that this rule was moved for the purpose of ascertaining how far Mr. W. might go, with gaiety, on tame trial of the iodictments, which he had preferred. lie expressed his high sense of the honesty of his Client, who was desirous of stating all be knew, without dread er apprehension, because he had only to state what was true. There was :mother fact, winch, if it bad beets comannuicated to their Lordships, hr con ceived that they would newer have granted • rule to shew cause, and that was • letter of Col. Wardle himself. which appeared the very day after the trial; at las addressed to the people of the United Xing dom. In this, he (Col. Wardle) stated, that his Counsel were satisfied in their minds, that the Jury would not find a verdict upon the testimony of Mrs. Clarke,' Mr. Wright, and his brother; and, therefore, they did not attend to his wish fur the itainuination of Major Dodd. Mr. Glennie, and other respectable witnesses, who would have given evidence directly contrary to that which was sworn by these persons. From this, it was evideut, that Mr. Wardle knew what was s.vorn agaitist him. lie told the people of the Untied Kingdom that he had repeatedly entreated Ins Counsel, in writing, to call the witnesses so named. What then became of the swivelling excuse with which he now came forward, naively, that he had not an opportunity of commu- Meeting personally with his Louustl ? He told the people of the United Kingdom, that he knew what was proved against him ; and hr further told ahem, that his Counsel were satisfied that the testimony of two iiiiimpeached, uncontradicted, witnesses, would not he helieved by a Jury. if his Learned Frieuils had said so. they were pretent, and could confirm it. But he would do his Learned Friends justice. It had been stated, that they got positive written instructions. lie recollected, that. having asked Mr. Park, while Sierjeant Best was speaking, whether they had any witnesses to produce? Mr. Park replied, that he felt himself in a very auk ward sitilation, as he had not then so opportunity of consulting with Mr. Best upon the propriety of preducmg evidence, which it was at his own discretion to produce. If those facts were known, their Lordships would oat have granted a rule to *hew cause. lie would now make • few comparisons between what Colonel W. had stated with, and what without affidavit. lie stated that hi: Counsel were of opinion that the uncontradicted witnessed against blot *mild not be believed, and the preseut application was 'node upon the ground oaf surprise; when. therefore, he read the letter to ' the people of the United Kingdom, he expected to have Gould in the affidavit, copies of the letters to his Learned Friends, in which lie required of ti.em to produce the witnesses, in his opinion so ii..,werta,d to 11:s cause. No such copies, how appears ; there was not the slightest iuti mation of any such instruction, in writing ur other wow, in his affidavit ; he declared that lie was not iu Court ; but did he state, that lie was cattier- It ignorant of what was going forward in the Court ? Did he state, that his attorney was ' not occupied in carrying him intelligence, which must have prevented his being taken by surprise? It was remarkable, that, in the whole of his affida vit. he newer mentioned having aubpernad wit nesses; he was indastnotis in settimmg. forth that Mrs. Clarke and Major Dodd were subpuniad by the Plaintiff; but it was only by accident he let it shim, in his letter to the people of England, that he had subpcenad the very persons himself. What did this prove ? Did it not ,hew, beyond a doubt. that lie was aware of the important facts which would he urged against hou—facts with wind; lie knew that those persons were connect ed, and on which hr looked for defence to the tennuony of Major Dodd. lie would appeal tit the recollection of their Lordships, to the reCo:o leatum of his Learned Friends, and of all who *ere presentat the trial, 'shelter he titl not repeat , over and over that his case was to be proved by three witnesses? That, upon the testimAny of Mrs: Clarke, Mr. Wright. and Major Dodd, he rested his proofs altogether. He named Major Dodd, whom lie had suiipcenad, not for the purpode of build ing his case upon any thing he should say. for he knew him to be the intimate and confedoate ofCo lonel W. but because he expected that if the De fendant's Counsel had proceeded to examine him, be would draw from hint, on the cross-examination, what might invalidate his own testimony, and es tablish the case which It was intended to subveit. He did not fear Major Dodd's testimony—lie c our t e d it—he had challenged his Learned Friends repeatedly to produce it. It might be said, that though Colonel W. did not communicate his wish fur the examination of Major Dodd to his Counsel, he might to his Attorney ; but did his affidavit set forth any such fact ? No ! lie was dismissed, it was true. Mr. Ellis was substituted fur Mr. Corfield, but no imputation was brought agaiust him, there was nothiug but his bare dismissal, to give rtioin for any suspicion of misconduct. He (the Attorney- General) could give out reason fur the absence of COSIOneI W.'s former Attorney ; it would he rather erthward for Mr. Cortield to be present during his ilhatement, when there existed such an impossibility a reconciling Colonel• Wardles complaints with Illocircuaustauce of his Attorney having acted pro terlY* Lord EcLassoitovon wished to know what was the ground of surprise upon which the motauti rested ? Mr. ATTORNEY-GENERAL said, that Colonel Wardle contended, that he had never contracted such a debt, and that the evidence produced upon the cause had taken him completely by surprise.-- But he would beg leave to put a supposition to their Lordships ; he would beg theta to imagine for a moroent•that they were sitting in judgment upon another occasion. that they were occupied in trying an indictment for perjury; that they had, upon the one bawd, Mr. Wardle's affidavit, and, upon' the 'other, in proof of the falsehood of that affidavit, nothing more than his letter to the people of the United Kingdom ; the one complaining of being . taken by surprise, the other declaring his having subiested witnesses. whoa, his Counsel neglected to call. lie would ask them whether they would not consider such proof aufficienttosubatantiate the charge, for which vii that Cale he would be colitend ing? stated, that he was not in Court ; but did he state that he was not ill the Hall, that he was not in such a situation a. to beanie to be in Court if he phrased ? He had stated, tliA he did not cows sul; persoirill, with his Counsel ; hut should he not swear in addition, before any attentitm could, be paid to such a witsiel!, that h.• had no comma nicatuuo with them? But no such thiag was - done; on the contrary, it iimeared truth two ert his wanes. sea, that lie had sent them into Court; • proof that he was not without his coniiuuuicatiius and io telligenre. Lord Ei.r.canottouza s ti.l, that he could have come into Court at the time, but declined it : he could take no advantage of his absence, nor urge it as a ground in support a his application ; he wished him (the Attoney-Ge..eral) tustats the ear. prise, of which he (Colonel W.) complained, in or der to save the trouble of going iota the affidavits at length. Serjeant BEST stated, that the ground upon which they moved for the rule, was in consequence of evidence which had been discovered since, and which, from its nature, could not have been disco vered bctore. The ream) of his mot telling Major Dodd, was, because he thought he owed it to him, net to bring hint forward without evidence to support bun. Their Lordships knew very well that there were many cases in which it would be ratilmeas to produce an evidence, let his deposition be tier so true, if there was net evidence to corns. borate and sopped Nes. lie stated to their Lord• ships, as the ground upon which hr rested his op. plicatrun, that be had been put in possession of evidence, since the trial, which there was uo mesas ef striving at, until after the evidence at the trial' was disclosed. With respect to the indictment to which the Attorney-General alluded, he could say that he had no hand in it ; nor did he believe that his Lenard Frieuds were eaucerised. He felt the situation of the Defendants iii that indictment, if the trial in that Court was permitted to precede their trial ; but the Attornty•Geaeral had it in his power to prevent any inconvenience of the kind, by waiting for the decision of their trial, before they proceeded to the other. Lord ELLE:MOM/UGH said, that the Court would extend its protection in criminal cases, and prevent any unnecessary disclosure, which might anticipate tho defence. or in any manner obstruct the cause of those who were the object of them. Serjeant BEST declared, that he was willing, upon that account, to let it stand over until their trial was decided ; but the Court being unwilling that the Plaintiff should be kept out of his mosey so long, refused its acquiescence. Mr. Serjeant Ben proceeded. lie said, that he felt somewhat aultward at an allusion made by the Attorney-General. on the subject of the instates tient of Colonel Wardle ; he could say, that no pee sitive instructions were given to him ; if there had. he felt no hesitation in stating, that whatever might have been the consequence, he would have obeyed them. lle had already stated the reasons why he did not produce Major Dodd ; he would now state the facts upon which he considered that they were entitled to a new trial. He contended, that whether the verdict obtained against Colonel War dle was right or wrong, it was not obtained in a man. tier consistent with the jurisprudence of this coun try, namely, under a full and complete possession of evidence by the Court and Jury ; and he sub mitted whether it would not be a hard thing, if it should afterwards turn out that the parties were eutivicted of conspiracy, that they should here the fruits of their iniquity in their pockets. There were many inconsistencies in the evidence upon which the verdict was obtained; insomuch so. that the Jury hesitated for some hours before they were finally agreed ; of one witness, he eight say lfrseu what passed is gawkier phseel that on' Joey ovoid believe her. But he did vat adds's. theta merely upon the iwprobstility of the *ld woe. If the audit was give. to him Cleelle a dew fele ea sad of the Plaiatire ease: she mete they weroferaido ad on the crsdit el Kr. Wig* ; bit.lM Caen Might rertiember hon'ilsc 'agitated. bb being asiciii as to the period of her acquaintance wide him : she said at first teat It commeuced about autumn. but afterwards It turned out that she knew bite about the 16th of November ; so that, according to her own chewing, she had given false evidence in the first instance. All this hesitation was occasioned by her anxiety to chew that it was upon bis credit the house was furnisbed, in order to witch it was ma terial that their acquaintance should have preceded the agreement with Mr. Wright. In this however they failed; some of the goods were rent in before her acquaintance Mr. IVardle; and in order to account for this, it was stated that they were sent there on hire; upon this there was a direct contra dic.ion between the parties. Mrs. Clarke swore that the goods were returned to Wright, and Wright swore that they were seized in execution. Since the trial, it was discovered that a Mr. Curt, a Mr. Simeon Bull, and his servant woman, of the name of Mumford, could directly contradict the evidence adduced upon, that trial. If their Lord ships were of opinion that it would advance the justice of the case to grant a new one, he was pre cluded they would do it ; and when the circums stances were such as to make the Jury hesitate for hours, and a discovery had Ewell since made of evi dence which weut in direct contradiction to the tee- timony then advanced. he thought he might with justice apply for and expect a new trial. Lard Ext.tmsoaoccnt said, that if the Court was to great a new trial is the present case, upon such grounds, it would be establishing a dangerous principle, the security of prowerty would be reit. dered invalid, and all trials go for nothing, if lia ble to be set aside upon further discoveries of evi dence. Mr. Serjennt ilcsr observed, that, in asking for a new trial, they did not call upon the Court to say whether the affidavit of Sir Richard Phillips wap true or false, but merely sought for an oppurtuuity to confront him with Mrs. Clarke. . _ Lo►d ELLLNIBOBOUGII wished to know what facts Bull could hare mated. Mr. Serjeaut &ST said, that the reason given to maintain tile fact of the furniture being given oil Mr. Wardle's credit was, that Mrs. Clarke would not have been credited by Wright. This Wnght himself had sworn to; but Bull could prove that .Wright had about that time recommended her to hiru as a lodger, and said that he was looking about for a house for her, which he was to (turns!) ou her own account. Lord ELLaNBOROUGII said, that the whole effect of this legato prove that he wished to get her impro per credit, but was not by any means inconsistent with the story. . „ Mr. Scrjeant BEST allowed, that if it 'las against the rules of the Court, it could not be expected ; but he might say, as bad been said elsewhere, tgat • great deal of infamy must rest somewhere, Whit it was the wish of his client to have it sifted to the bottom; lie was anxious to have an opportunity ofshewin, that what the Attorney-General had stated that day ori ginated in the same conspiracy, and was founded upon thy same perju'ry, of which he cotnplained. Mr. PARK insisted strongly on the contradiction given by the affidavit of Mr. Curt to Mrs. Clarke's, evidence. She stated, that she did not know Mr, Wardle, until the 16th of November ; but Curt swore, that be met Wright on the gth, and that lie said he was coming from Mrs. Clarke's house, which he had just begun to furnish; he had taken carpets to her, and other articles, different from those described loy her. lie (Mr. Park) stated farther, that he had never received any peremptory orders from his Client, but that it was left to his own discßetion as to whether lie should produce the evidence; and confirmed the account given by the Attorney-Gene ral, of his conversation with him upon that subject. Their case did not rest solely upon what he had already stated ; they could also prove that Wright, though he swore he would not trust her, had gone bail for her about the same time. Lord Er.t.a►susouma observed, that he was, probably, aware of .her being afeinnte cocert, and therefore conscious that he incurred no risk by that act. _ Mr. Pane said, that they were not even con fiord to that, for they could also prove, that, with all his protestations against giving her credit, he had given his draft for 1081. the amount of the fixtures at Westbourne-place, so that up to the momeut these goods were sent in, he was in the habit of giving her credit. This 1091. was entirely distinct Irons the 5001. mentioned on the new trial. Lord Em.straoitottos said, that Cart, being Mrs. Clarke's landlord, et Westbourne-iplace, was • most natural witness to resort to. Why, there.. fore, was he not produced at first ? Mr. PARE concluded with observing, that he had also paid her rent ; and that other circumstances could be shewn, aot depending upon parole proof, if the Court would grant the trial. Mr. MAIIRTATt on the same side, said, he was astonished haw the Learned Attorney-General could state, that it was a contrivance of the De fendant to get at the defence of the Plaintiff.— The Learned Gentleman might, with his acuteness, have found out, that the Defendant was in the setae sitnatian. But, leaving the evidence of Dodd, Glennie, kc. out of the question, was there not sufficient cause for a new trial, front the affidavit of Col. Wardle? Did that not shew that there was surprise its the case ? Although it had been argued that he was in the hall, yet he might not hare been there. and only have heard what evidence was ad duced half an hour before the trial was finish ed. Another point the Court ought to consider was, the short time the Defendant had for prepara tion to defend this cause. The demand was made on the ed of Juoe, and on the 19th of July the ac tion was tried. Lord ELLINIOROIJOB---•" That cannot be now pleaded as a cause fur • new trial; for, if the De fendant had complained that lie had not sufficient time to defend the action✓ on en application, the . Court is .Iways reedy to give reasonable indel..2 geom." t.q Mr. !dimmer?, in condensation :—lt appeared that the Pieintiff hail no account in his besirlis =th e Defendant; that was only fourkiirset in r last, by the Plaintiff's answer toterbill rn Chancery ; also the affidavit of Joseph Cur% which arts forth, that he met the Plaintiff' on the gilt of NoVexaber, before Mrs. Clarke was acquayted with the Deiced...l, and he told hies that 1 4 - -in gaioi to the house is Witetbeereileseep to take . Inestsere tot carpets and &Meta, In be pcs &nee and set down in that house. This, the Lestresed Counsel eontended, proved that the Pbsintiff resin the act of furnishing the hotter*, before the Defend aut was even known to Mrs. Clarke; also the etre curnstance of the Plaintiff's having hum red the for uiture in the name of Farquhar, and, on the mime day, making another insurance, Ili the name el Clarke, proved that the furniture was not insured for Mrs. Clarke, but for her mother. Lord Eeeteeciaouclit—•• It was siren is evi dence ou the trial. that there were goods to a con siderable amount rent into the house, at West. bourne-place, on hire, by the Plaintiff. If Mrs. Clarke had sworn there were no carpets, it might have a different appearance ; but as to the questiou about the Infurauce-Offices. if proper diligence had been used before the trial, you could as well have known then in whose name the I N,Ii y boil heel] completed, and by whom, us now. You have not mentioned a particle of evidence, that you might not have produced at the trial, except the answer to the bill in Chancery. which we have no right id look at ; you might have put off the troll until after the bill in Chancery had been filed. la which case, we could have rec.ived the answer as PVI. deuce." Mr. Meatteerr then concluded by saying, that Mrs. Clarke had given in evidence, that she never thought of any other person paying for the harms tune hut the Defendant ; which was contradicted by the affidavit of Sir Richard Phillips; *kerma he declares, that Mrs. Clarke gave him, as a reason for her wishing to make the most of her publica• trots, that she had to pay 3nool. to the Plaintiff, for the furniture scut in by him to the house in Westbourne-place. Upon these groudda, he trusts ed that the Court is ls w orld not think him unree sociable in pressing them fo grant* new trial. Lord ELLValioaoUGlll—" I think, that if granted a new trial, it would be a most dangerous precedent. mud-would be injurious to the 'Mann.- tratiun of justice; it would be enabling Defend. ants to lie by, until they knew • the Plaintiff's ease, arid. es was very properly stated by Mr. Attorneee General, that they then might fish for evidence t' contradict the case. The Court, in granting • cowl trial, requires the party applying to sheer that they were taken by surprise, and that they' had used every due diligence beforehand, to bring forward the nesressary evidence. It is mile on such convincing provide that the Court can grant a new trial. What surprise is there this case. that common industry could not have prevented , As to the affidavit of Curtis, the land • lord, coals ,not his evidence have Len obtained oa the trial ? 1 due diligence bad been used, would it not have been uatural for the Defendant to have applied to flit Imalliirdpf the house, in the " instance. who wns more likely to know the cie:urne stitucev or the tenant, than he that lets the house 7 tie neglects to apply to him, and he calls upon a Court to exonerate him from that uvglect ? There is no pretence that Curts's evidence could not ha, been had on the trial. As to the business of . _ insurances, 1 left that to the Jury, and they decided on it, If all the circumstances of that Iran— action we seer- bikes them, it wits the Defeuda ant alone that was remiss, for, by common i•- dustry, he could have produced it. As to Plaintiff's bailing Mrs. Clarke, is several actious s there was nothing in it ; he knew she bad pleaded her coverture, and he could not be hurt. As to answer in Chancery, the Court cannot look at ' If the Defendant had tiled his bill before the he could have moved to have had it put off the answer was put in. It is not that those curastances would not have affected the case, it is that the circumstances did not come on the fendant by surprise. As to his not having personal communication with his Counsel, lie might have hail it by taking a few steps from the hall into the court. I have taken every circamstance of the case into me consideration, and sin of opinion that a new trial should not be granted." Mr. Justice Gaose—" I em of opinion that no case of surprise has been ,hewn. The case seems to me to be this, that the Defendant's Counsel, very judiciously, on seeing the Plaintiff's case, made a speech, mud left it to the Jury. It world be a dangerous precedent to grant a mew trial on such merits." Mr. Justice Le ELAWC entered minutely into every circumstance of the case, and concluded by observing. that the Court would be trampling on justice, if they granted a new trial. If it did beat hard upon the Defendant, which he would not say it did, it was better that one should suffer, than live hundred ; for it would be laying down a pre• cedent, the perniciousness of which, perhaps, might never be rooted out. Mr. Serjeant Bette—" The Defendant was ap prised of what the nature of his defence should have been : and the only subject of surprise. brought forward is, that Mrs. Clarke, on the trial. said. that the Plaintiff would• not entrust her; and that the Defendant, to rebut that. brings forward affidavits to prove that he would have entrusted her. I entirely agree with the Learned Judges that a new trial should not be granted." The new trial, of course, was refused. The Court was crowded at a very early hour:. Col. Wardle did not appear in Court. 1119 ROYAL HIGHNESS THE DUKE OF SUSSEX LIBEL. WIZ SING V. MINIM 111011S2118 411. Mr. ATrORIIEY-GETILIAt. moved, that the Dee fendant should be brought in tojeceive the judg ment of the Court, for printing a Libel ou His Weal Highness the Duke of Sonwee. Jyt _At*. Lord ELLEHBOROVUR read over the minutes of the triad, which was tried before him, in February last. It was an information against the Defendant, for printing and publishing a hand-bill, setting forth, that His Royal Highness had been gulby of a en. min.! offence. It was an information, and the Do. leodant pleaded not guilty. The hand-bill was nearly as follosis 's Twenty peach reward--Wberess there has been as flews Isbol niplishod to trselure the character sea writs. time of Mr. Tbrasiras Hsgur, the author of whit h is soppered to be hie keyed Ibiboitsa the Il,tlr of Sussex Any pers. a who will givess ayn, is as I:e stay hr convicted, 'll4l 1 receive the a d."--Illeery Llorseaeso, pnoter, Has. way. street The Dofetwitretind in an affidavit, setting forth, riat he bsi been iu the service of Thomas Hague. - for eight years; that Hague used to sell his books through the booksellers; but that wore fuiir g 1.2 woe ad l • •• rill od- MP. ' 0 e- rne red rbl I I'M. ght had RV( eta • not gin *et t td . • old I,# iith that ever :tu• rf req.& • 100111 IC4* • e IN vita sea* we • reUil • 14 end. Care, t: to • sr+ she., they' • to only I ‘ l ever • ill have 4 d oe, gold have flrgt t:urn. use T I tho .'here have f the I tided 'feud. n in. o the a. Ilona. Glided othe trial. until e cir. but ti e Dr. • retinal re had i• • 1 ..