The Sun. — London, England, 1823-06-14 00:00:00

• tend . * we had before arraigned. These are the observatiens which it occurs to me to make upon this part' of the case : in a case of this description, where there was no evidence, and where the natural inference is, Abet there were much earlier Records than those produced, when there was no question asked; and no witnesses called to say if there were older docu ments- °mot—whether the Jury ought not to have been told to take that into their consideration, whether there were not older documents, and that they should not have been told they must find a verdict for the defendant. Having made— Lord Chief Justice ABBOTT—The Learned Judge does not reportgo us that he told the Jury so, but that the evidence stood unanswered. Mr. ScARLETT—I have the short-hand writer's Report— Lord Chief Justice. ABBOTT—We have the Judge's lie port, and it is much better to rely upon that. tlerjeant FELL---I will not go beyond stating any thing that is not in the Report, but when I submitted this case to:your Lordships for a Rule to shew cause why there should not be a new trial, I did it in consequence of the very strong and pointed manner in which the Learned Judge stated his opinion to the Jury. Lord Chief Justice A unoT T—l think it could not haie been done too pointedly and too strongly. Mr. Serjeant PELL—If that is your Lordships opinion— Lord ChierJustice ABBOTT—Yes, I think so, the evidence was unanswered. Mr. (lASELEE—My Learned Friend has taken it for grant ed aim) the Sheriff 'a Torn, that it was the business of the Sheriff to select the Jury; we have only my Learned Friend's asser tion for that; I do not find it in any authority Lean discover— and timbinit upon the Statutes that have been read, the Sheriff was not the person so to act. It is said, why Should not the Steward do it, as the Sheriff has done it ? There is a very mate rial distinction between the persons—the Torn was the general ' Court of the County; the Sheriff was the officer of the Crown; the Sheriff had only a public duty to perform ; he was a public officer ;ippoiated by the public functionaries of the Kingdom ; hut when 1 look through the_ different proceedings in the Courts in this, Kingdom, I find they . are judicial officers ; I will not speak of what my . Learned Fi•tend alluded to of a neighbouring Country, where the Judge names the .Jury for criminal offences. I shall not state any thing to your Lordship upon that ; I cannot state any thing that Is strictly applicable to it, but your Lordship knewa.what complaints have been made upon that subject, and we are not here to be governed by what is the rule in any other Country, but whether what has been done in the present case is consistent with the laws of this country. Now it ap pears, I think, from the authorities, that the Sheriff in his Torn did not summon the Jury, but that they were summoned by the Bailiff. If your Lordships will point nie out any situation in which the Judge of a Court fines himself, then 1 will agree that the Sheriff is similar to the Bailiff. I will shew your Lordships, that the Steward has authority to fine the Bailiff; whatever customs belonged to the Court and are now gone, that still remains, that the Steward at the Leet, at this day, is entitled to tine the Bailiff if he does not impanel the Jury, and that shows he is not the person to summon the Jury. I find, that in Baron's Abridgement, in the third volume, title "Sheriff," letter, " L," " the Sheriff may in his Torn impose a fine on all such as shall be guilty of a contempt in the face of the Court, anti,' on a suitor refusing to be sworn, and on a Build ff' refusing to make a panel:" That shows that it was his business to summon the Jury. If the Bailiff's duty only was to summon the Jury which had been named by the Sheriff; the Sheriff would have made the panel. Lord Chief Justice A nuoT—T do not know that. Air. GASELEE—Because making the panel is nothing more than soliciting the names, and therefore the Sheriff is entitled to fine the Bailiff for not making the panel. With respect also to' that Statute, by way of showing that Mr. Scarlett is mistaken in saying that the Sheriff and Steward are but one person in law, I will call your Lordships' attention to another clause of that statute, which Mr. Adam has referred to, chap. 4. of the Ist of Richard 111. Lord Chief Justice ABM/TT—lt is chapter 4. that has been all titled to. Mr.AsELEE—Yes, my Lord. First, I submit, that the clause which Mr. Adam has read shews, that the Bailiff was • a different .person from the Sheriff—that he was the person to. summon the Jury ; and it expressly shews that the Jury in the Torn were to be summoned by the Bailiff*. —The title of the Statute is "Of what credit and . estate those Jurors must be which shall be impanelled in, the Sheriff's Torn." This Statute, after noticing " that great inconveniences and perjuries frequently happen from improper 'termini being returned to the Sheriff's Torn," enacts, tt That no Bailiff' or other officer from henceforth re turn or impanel any such person in any Shire of England, to be taken or put in or upon any such inquiry In any of the said Timis, but. such as be of pod mime and fame, and having lands and tenements of freehold within the said Shires; to the yearly value of Vs. at the least." That is the first clause. A penalty in the second clause is imposed upon the party who so . does. 1. do not think I have the precise words. Lord Chief justice .Ausurr—l will read the words to you ".If any Bailiff or other officer within the said counties, here after return or iinpanel any person contrary hereunto, he is to lose for every person that he so impanelleth and returneth, not being of the muffickney as is aforesaid, as often us he so of endeth, 104" I think it is. assELEE-.—No, it is 40s. Lord Chief justice itunoTT—Yes it is, I sec now—but it is no matter the amount. . • Mr. GASELEE—And that shews the Sheriffand the Steward itto not the same persons. Lord (Thief Justice AnnoTt,---They may be different' in different places. Mr, ASELEE —That shews it is the duty of the Bailiff to return the Jury, if he had nothing to do but to summon, he bad nothing. 'to 'do but to obey the direction of the Sheriff; attd ;if he obeyed that direction of the Sheriff he would Kay " I have summoned them ;" but here it is said that he WWI not " return or impanel." That shews he has some dis ention to exercise. You would never fine a Bailiff for doing what he had no discretion in doing ; therefore I apprehend, if the:Bailiff shall return or impanel the Jury contrary to these provisions he shall be fined ; and the Sheriff' is also liable to penalty if he suffers those men to act. The Bailiff is to forfeit tOrty shillings; and the Sheriff is to forfeit forty shillings ;. and Ovary such indictment shall be void ; and why is he to be fined? ifecsuse the Sheriff, who ought to know his county, suffered improper men to find an indictment. It is not merely upon the Bailiff returning the men,that the Indictment shall be void, Yut the Shea' -must have adopted the act of the Bailiff,' and Nuffered the indictment to be found by that improper Jury. The Sheriff is to be fined forty shillings for having adopted the en ro.tirned, and suffering the, indictment to be found by WWI. therefore I submit to your Lordships, that this statute *hews most distinctly that the Bailiff was the person to return she Jury. My tag& it is very true that this particular Act of :the nth of Henry TY, in Its terms does not apply to the Sheriff's Court or Court Feet; but I cited it for the prin. 4.11p1e.. The principle is this that whosoever business it is to summon the Jury, shell summon the Jury without any donomination to the Sheriffs or Bailiffs of franchises.— Now the Sberiffor his Bailiff is the offieer who is to return the 'Jury to the Justices at Westminster, the Sheriff* being thirper. yrtlp is: to make that return, without having any body nomi. :slated to " Because that, now of late, inquests were jAken 4t.Westminster of persons named to the Justices, with-. !VlO,duqrtotirn of the Sheriff; of which persons some were out-. jaWed before the said Justices. of record, and some fled to. u!..itticittrary for treason, and some for felony, there to have re... "fuge--Tby whom as well many offenders, were indicted, as other )awful liege people of our Lord the ',Zing, not guilty aeon loiracy,ribettmentiand false imagination of other persons, for 'ffieir special advantage and singular lucre, against the course of the common law used and accustomed before this time ;—our ` , A141,,,nril the Hing, for the greater ease and quietness of his people, willeth andgrameth that the same indictment:so made, '.,sri'th a l theJletamdenee thorcof, be-revoked, annulled, made void ana holden for hone for ever." Justice 1 - 101.noYD—There Is sonic authority I know throvay in which that Statute is to be interpreted. tiff.; gasELEE—That Statute commands— MY JUstiee itar<strrrf,-Notwithstanding that Statute, the onutruction put upon it does not extend to any direction by the Court ;, it only directs that the Jury shall not be nominated by strangers, but that it must be by the Sheriff Or his sworn officer, without . any denomination to them as to who the Jurors 014 be •Afr:GASELEE—In the Bil Institutes there is:a judgment of Lord Coke upon that Statute, and I do not . fitnl any thing in opposition. to what he there lays down. He says, " This is a general law,: and extendetlt to all indictments for any crime, 'default, or-o%nce whatsoever; for the words he, if any in ...slictnitnt• generally, without naming of any court, or before whom. If the indictment be found by any Persons that are ' 'outlawed, or not the King's lawful liege people, or 'not awfully returned or denominated , by any, namely, by all or' any 'of these, that then the indictment is void ; for thf!, words be, If any indictitient be made . hereafter .ant point. to the contrary, Ste." ' .And then' he :dies •the, case of Robert - Scarlet, who had endeavoured to get himself put on the Jttry by it fraud. " Upon this Statute,. In t h e case of Robert Scarlet, before the Justices of Assize, .--:;sttllttry,-Irt the County of Suffolk, n suinnier vacation, 10 Jp. 114tinew..pointo;Ni l efe resolve() and, adjudged ;' first, where at' they Sesaions of the Peace, holden at Woodbridge in the Said • "- County of. Suffolk, Robert Scarlet, by confederacy between, `'.thint.inelrthe Clerk that was to read the panel of the Grand ' , Jsrry. returned by the Sheriff, (whereof he was 110fiN albeit he laboured the Sheriff to have returned him) that the Clerk should real him as one of the panel, which was done accordingly, and he sworn, it was resolved and adjudged that this case was witaln this Statute, for that he was not returned by the Sheriff:" Maw, I , williay, this is an illegal nomination, because the par. ties are not' returned by the Bailiff: Therefote 'the use I make of that Statute is to shew, that upon every occasion where it is the duty of an officer to nominataa Jury, he is to elect without being interfered with by any other person. Though the Leet is certainly said to be derived from the Torn, it is not exactly the same thing as the Torn. , The Torn was a Court for the County, and the Court of the King, and of the Public,—the Sheriff, the King's public officer, kept it. But the Leet, though it gives a certain power to the rd of the Manor, yet it is given to him as an individual, and as an individual he is to have the profit of it; therefore it is a very different thing from a Court winch is to be open for the public benefit, which is not only to amerce, but to do a variety of acts which work in a variety of ways for the benefit of all. Therefore he does not stand in the same independent situation as the Sheriff at the Torn,—they are in this respect different. In some cases I submit it is the law of the land that a Bailiff is the person who is to make the selec tion of the Jurors.; and that appears from a case which was be fore your Lordship's predecessor, the case of the King v. Bing ham. I cite it from a manuscript note. There was a quo warrant° information moved for against the defendant Bing ham, who was a Bailiff of a liberty of the Bishop of Winchester in the Manor of A lverstoke. There was a quo warranto information against him to shew cause by what authority he beld that office,—it being contended by the late Lord Chief Justice Gibbs, and by Mr. Justice Burrough, that Bingham was only a private officer of the Bishop, to collect his rents ; but it was held that he was "the person who was to impanel the Jury, and it was on that the Court refused to grant the information. It is said that the Sheriff was the person who named the Jury before the Torn. I hie not been able to find it, though I have looked with some industry through the books. So far from that being the case, I submit, for the reasons I have stated, the contrary must have been the fact. My Lord, I will not trouble the Court more at length upon this subject, because I know that my Learned Friends will go into it with more ability than I could hope to bring to the . question. There was, however, an observation which fell from Mr. Adam, which I feel myself called upon to advert to. My Learned Friend said, that in the early history of the Court Leet, the panel was general ; I have net been able to find that, but on the contrary, in the books I have looked into, I find, as your Lordships will find, they were to summon, upon some occasions, 24, and in other cases a less number-12—to serve upon the Jury. I take it, that it was as Mr. Scarlett says, that, without any particular notice, all per sons were bound to attend the Leet, and to do suit and service, and to be amerced if they did not. But I challenge my Learned Friend to.sliew any instance of amercement where the party has not been duly warned. Lord Chief Justice ABBOTT-L-That would still leave the question open, what is a due warning ? Whether proclamation that a Court would be held at such a time and place is not due warning ? Mr. GassELE—l apprehend the form might be, although notice was given in such or in such a particular way, they need not allege individual notice. Lord Chief Justice AnitoTT—Upon a general notice would not persons be excused for non.atteudance. Mr. GASELEE—If the amercement proceeded upon that ground, it would be enough to allege that due notice was p;iven that a Court would beheld a tsuch a time and place ; it would not be necessary toallege that due notice was given to such an indivi dual. In Shepherd's Court Keeper, which was published in 1656, there is a des en ption of the proceedings of the Court Leet, " having the names in writing of 24, if so many be to be had," &c. &c.— Then my Lord Chief Justice Scroggs says, " it will be notice enough to Make proclamation that there will be a Leet at ten o'clock in the forenoon at the usual place, that is warning to all tenants resident to attend to do suit and service." And like wise, " there is to be summoned 24 good, honest, and lawful men of the said manor to be and appear personally at the place aforesaid to inquire"— Lord Chief Justice ABBOTT—That is in Kitchin, is it ?" Mr. EASE LEE—No, my Lord, it is in SeraggA. Lord Chief Justice ABBOTT—What part of Scroggs? Mr. GASELEE--The practice of Courts Leet and Courts Torn. The title is, " A full and exact direction for holding Courts." It is published from a manuscript of L or d Chi e f Justice Scroggs. Mr. Justice BEST—I thought it was in Shepherd. Mr. GASELEE—It is in Scroggs, page 13, my Lord. So also the same is laid down in Jacob's Court Keeper. Lord Chief Justice ABBOTT—Your whole argument, Mr. Gaselee, proceeds upon this, that because the matter may be done in one way; it must not be done in any other ;—that is the whole of the argument. Mr. GASELEV.—I submit that all the authorities arc with me, and that, by analogy with the practice of the Courts of common law, the persons who are to try the cause, and those who summon the Jury, arc in all respects different. With re gaol to the observation that the Steward may compel, if there are not persons enough present who have been summoned—that , he may compel other persons who arc in Court to make up the Jury, or may send out into the highways to bring in strangers. I submit that is what doers not affect my argument at all ; that is done in obedience to the authority of the Court, and is no selection, but is a matter of chance. It is pretty much in con fortnity with the practice of the Courts of common law, where, if there is not a sufficient Jury assembled, the Court does not direct who are to be summoned, but it directs the Sheriff to supply the tales; if it is in a Special Jury, they are to elect a .Jury de circumstantibus. Though in some cases the Court does not select strangers, but directs the Coroner to summon a Jury, I submit that the office of the Steward being a judicial office— that he being to preside as Judge, that it is contra!) , to reason, to authority, and to justice, that he who is to exercise a judicial office, can in the same proceedings be the person who is to sum -111011 the Jury. Mr. COLTMAN—My Lord, I am on the same side with Mr. Oaselee, and as I was not at the trial, I shall not trouble your Lordships with any observations upon it, and' more tape chilly as your Lordships have expressed a decided opinion upon that point. Lord Chief Justice A MIOT T—Yes, that is too plain. Mr. Col.l4l4tri—l shall therefore proceed to suggest some considerations to your Lordships which appear to me to establish, not that the Bailiff may return the pro cess, but that he is the only person who can by law return the process, and that it would be a great anomaly, and not only an anomaly, but that it would in point of law he' an absurdity, if the Steward could make'the return. I am aware, my Lord, that I Must go that length in order to Maintain the proposition I set out with. My Lord, it is material to consider,' as introductory to what I have to say, what the state of the Court Lea is • for we ought to recollect that the Sheriff's Torn or Court f i eet, was the court where persons might be indicted-- that it was the.great court in which all manner of offences in this country not, only, minor, but capital olllnces also came within the jurisdiction of the Leet. The Leet had cognizance of thefts, for which Judgment of death was given as in other Courts. The : Courts of the Sheriff's Torn had a jurisdiction in all capital offences, except only in the case of the,death of a man. The intfoiry, if he had met with a violent death, was properly an inquiry before the Coroner, where the body was found ; and.where it was not found, before a higher jurisdiction. They had the power of judgins, as they had in every other matter;, this was in fact the ef actual court which discharged the crirnival justice of the country. That was altered by Magna Charm at a very early period, and by one chapter of Magna Charta the power of the Leet—(it is chapter the first}.._. the power of the ,Lect to hear and determine capital offences is taken away, and ceased. By the 2d chap. of the Illth Statute of Westminstee; and by the Ist of. Edw. IV. chap. 2, their power was further reduced, so.th at all power of imprisonment was taken away from the Lea and all power so possessed at all was taken away by Statute. Where any offences should be committed for which eapias should issue, the determination of them was taken away from the Court Leet, and they were directed by the Statute of West Minster to return them to the Justices who at Sessions were to proceed to the trial of the indictment then found. But to this day indictments to any extent might be found, and from the Court Leet, though not from the Sheriff's Torn, process might be issued upon any Indictment there found. So that though the power is not much &itemised, it is still possessed by the Court beet, end it is a Court of very great power and jurisdiction, N ow , r.:notion this as materiel ; be cause we are to observe, if this is a custom, which it is said it is, as a matter of prescription it must have existed before the time of memory.-. Therefore, if at this time the custom be good, it must have.existed when the Torn anti Leet had the utmost ex.; tent of jurisdiction, and When they were, canable of passing sentence of death. N ow , I su b m i t t h at it appears a very start ling Pr°P9 6 ition to say that a Jude of a Criminal Court of such hign jurisdiction as th a t,. might first indict and then nominate the Jury who were to demi* and that too 'where the party cured could not challenge. Lord (Ala ju 'Wee A nu o TT—There the Jury who were suM- InOnaNiqtl of the nature of a Grand Jury, and not lie jury ,who wero to try. • Mr. COLT MAN—it ioiiet strictly applicable to this Jury ; but I 'should think your Lordships would hardly sanction such an anomaly , as that a Judge is to return one Jury , who are to inquire, and another. officer, who is to returo,the ; other .44 . 11. If this was the ease of a Petty Jury, ILACCIII3 tit me, I confess, that this argument of, itself, ~would be quite cenclusive. For thO effect of this rule with regard toFetty Jury would be, that the - pOwer of challenging the array would be.teken.away ; for one ground for challenging the army., is.partiality,'or sonle de fect- in the returning officer himself';.therefore c ,jf the Sheriff or Steward could return. the .Petty Jury, .4 would be idle to talk of challenging the.array . before . bin • who would be the person to sit in judgment in.his. own crow, Ti )ere is Flo authority in Lord , Commentary, in ft note of 11Ir.:gifz., herbert's Nature Brevium, with respect to the writ of seisin, which is the only case where the Judge is the officer who returns the Jury. It appears from the note in that case, that in the re-disseban there can be. no challenge to the array, and the reason is, " the Shotiff being the persoti who summons the array ;" it being his own act. Mr. Justice BEst —ln what part of the Natura Brevium is that ? _ . Mr. COLTMAN—It is in Fitzherbert, 188, Letter C. and note C.; on the paragraph C. it is said, " The Sheriff is J u d g e here, threfore it seems the array is not challenged." dr. Justice HOLIWYD—Any objection that went to the array on account of the Steward's being an improper summon ing officer, would go to his being an improper Judge to try. If an objection was made to him as not being indifferent, you see for the purpose of the trial : he must determine for himself in the first instance, and act at his peril. Mr. Co LT SIA N—There might be somethingin the particular case which affected the returning officer,—not a general case. ' Now, my Lord, that the Bailiff is the person who at Common Law ought to return this process, appears clear from what is laid down in various books upon the subject. There is a case in the year books, the 7th of Henry the VI., which is recog ' nized and acted on by all the authorities. It is cited by Roll, by Bacon, and by. Hawkins, it is generally known by the name of Griesly's case. In the case of Montague, " the defend ant was the Bailiff at such Leet, and the Stewa rd commanded him to make a panel to inquire," &c. &c. Mr. Justice BEST—That is quoted in a passage of Bacon's AbridgMent. Mr. COLTMAN—And it has been cited as a leading autho rity. It is not as 1 think, that he by c us t om i s b o u n d t o do this, but that there is a Common Law liability for him to do it; therefore, it appears tome, this is a direct authority to shew that the obligation to do the thing is in the Bailiff. Now, my Lord, I believe there is no case which can be found in the books, or in any part of the books, which chews that the power is given to a Judge to summon a Jury, or to nominate a Jury, or any thing approaching tolt, with the exception of the power of reforming the panel in the Statute, which has been alluded to of the 3d. of Henry VIII. Chap 12. in which the Justices of GaOl Delivery are empowered, if any improper panel is return ed to them, to reform it in open Court. There is the Act also which has been alluded to of the Ist of Elizabeth, Chap. 1, In which the Sheriff, or the Steward of the Leet is authorized, if the first Jury is guilty of any concealment, to summon a second Jury, who are to proceed instanter. I believe that is the only Case. 'Then as to the case which hail been relied on, of Crane v. Holland, there the Bailiff' was also the Mayor of Northamp ton ; he as Bailiff returned the panel ; there was found an error ; it was held that the Bailiff was not the Judge, but the Mayor and Bailiff, and therefore the objection failed. Mr. Justice BEST read the note.- . ;--" The Judges are not the Bailiff's only, but the Mayor and Bailiffs. Mr. Justice Hor.ttoYD—lt puts the case of re-disseisin where the Sheriff sustains both characters; and with regard to Sheriff,' the Statute of Henry VIII. shows that the Legisla ture did not think the two offices incompatible. Mr. COLT MAN empowers. the Court, when the panel has been improperly returned to reform it. Lord Chief Justice ABBOTT—I take it he is to put in the names of other persons...4 . lot to quash the whole return—it does not go to that. The recital says, that the Sheriffs had returned improper persons, " and also' w inquire for the King ;" it must, therefore mean that the Grand Jury should be reformed by putting in or taking out the names of the persons in the panel which had been so returned to the Justice of Gaol Delivery. Mr. Co LT MAN—I would submit, my' Lord, that at comnum law there is no instance where the person who summons the Jury presides as Jude; a case has, I know, been mentioned with regard to the writ of re.disseisin, hut I find that the She riff is,not alone the Judge in that case—he is to try it before the same Jury ; therefore if the argument founded upon that does not fail altogether, it goes a very little way in establishing any such right. There are certainly inquests of office, in which the Sheriff returns the Jury ; but then I apprehend this is no inquest of office. Where there is a writ for the admeasure ment of pasture-.-where there is a second admeasurement, the Sheriff is to go to the place and make inquiry; and so also in the case of' waste. , Both of these are cases of inquests of office : therefore I apprehend I am borne out in the proposition that such a custom cannot be maintained ; that there is no instance of it at common law ; anti my friends have not produced any , in which an officer holding a judicial situation is the person t o make such a return. It seems an extraordinary circumstance that lie should have such a power, and not carry along with - it the power of returning the 'Traverse Jury. g Lord Chief Justice AnnoTT—We have nothin to do with will find fife view w is all that is be ore us hi n c o h w i that i%ri a . t resentti AiiTE R ; jo d !a n t :r iv es: take of this case, and the remarks I shall make will relate to the Grand Inquest only; and I would call your Lordships' attention to the circumstance that the Lord of this Court beet is the person who is to have the profits ; he is to have the be. petit of all the amercements which are made In that Court; and it has been decided, that a custom which goes the length of giving an amerceinent at the Court Leet to the Lord for a private injury to him is illegal ; and that will be found in the case of NVood v. Lovatt, 6th Term Reports, 511. The Court there decided that such a custom could not be a good cus tom. In behalf of that principle I find it stated, that there shall not be amercement in the Leet for trespass, because the Lord cannot be judge in his own cause. In this case the Steward' being the representative of the Lord in this Court, he is the person who is possessed of the Lord's place and to whom the profits ultimately are to come. If you allow the Steward to choose the Grand Jury, who are the per sons to make the presentments ?—lf the Steward is the person who is allowed to nominate the Jury, who are to make the pre sentments, and to impose the amereements ? He is in fact in this invidious situation, that he finds these classes of persons who will present, and he himself is the person who makes the ainercement. The Sheriff cannot interfere in his own Court, that is to say, with the amount of damage which may be found, he is in misericordia, there the J ury are to fi x t h e amount . I shall only call your Lordships' attention to the peculiar charac ter in which the Steward, wh o is the Representative of the Lord, stands—for the Lord is to have, the money—the profit, pr bene. fit of the amercement, is for him. this is inconsistent with the' Your .Lordslup will see that Principle of law, that lie should be allowed to interfere with the Jury, who thus would in effect be nominated by himself ; whereas, the law provides that in different persons shall be summoned, and is in every respect cautious that no undue influence shall be allowed to operate on them. Lord Chief Justice AunoTT—l am of opinion that this rule ought to be discharged. We have already expressed our judg ment as to that part of it which applied for a new trial : we have said, that we think there is no ground for that tied of the rule, because, upon the evidence given, uucontradicted and unex plained, we are of opinion the Judge did right in telling the Jury that the evidence given was cogent evidence, and that they ought to find for the issue in the a ffi rma tive. if his ex pression went even beyond that--if he had even recommended them to do so, I should think such a recommendation was fit and proper. A clear usage for 20 years, unexplained and un contradicted, is that by which the rights of many private indl viduals, as well as many public rights, are held—there being nothing to contravene the public policy. Taking, therefore, that Issue to be properly found, we are now to assume that, by the immemorial custom of this Court Leet, the Steward of the Court has been in the habit of pointing out to the Bailiff the names of persons who are to be summoned as the Jury of the Court,—that this must now be taken to be an immemorial usage. It is true, if a usage be contrary to the general prin_ ciples and rules of law, however long . It may have prevailed, yet when it i s p resente d to the attention of a Court of law, it would be held invalid. We are to see whether there in in this usage that which is contrary to any known rule or principle of law. I a‘lopt very much what was addressed to us by Mr. Scarlett—that, by the ancient practice in the Sheriff's Porn, and in Court Leas, there were persons attending (all persona were in duty bound to attend), a great many did attend, and when they came there, and not till tbeycame there, the Steward in the one case, and the Sheriff in the other case, named to his officer certain persons whom he was directed to impannel to form the grand influent, and the Jury here was only the grand in quest. Then, if that was the ancient usage and practice, there is no doubt that the Sheriff, in the one instance, and the Steward of the beet in the other, without having any persons particularly warned, might select the Jury from the persona who were in attendanCe ; and I can s ee no o bj ec tion, they being obliged to . take 'care to have fit an d p ro p e rly qualified persons in Court. But some Acts of Parliament have been referred to, as show ere in of naming to the Judges the ing something inconsistent w i t h t his. The first is the statute of the 11th of H enry t h e 4th. N ow , by , th a t s t atu t e , it ap pears that a practi ce had pt . persons to serve ' on G rand Jur i es , b y ot h er per so n s th an th e Sheriff—by putting on the Sheriff's panel the names of persons to serve on the Grand Jury: this was found to be very,mis- - chievous, and it was prevented by that statute, which enacted, that none but the Sheriff should return the panel, and that no person should make any nomination to him of the names to be returned. The next statute is the Ist of Richard the 3d,, by which it is said, " Th a t no b a iliff or other officer, from henceforth, ret urn or i mpanne l any ot her person in any shi r e of England, to b e ta k en or put i n , ' or upon any such inquiry, in any of the s a id Toms, but such as shall be of good name and fame, and h av i ng l an d s an d tenements of freehold within the same shire, to the yearly value of 20s. at the least, or leasehold lands and tenements, to the yearly value of 265. Bd. over all charges at the least i" and then it enacts,--- `A nd if any bailiff or 'othe r offi cer , , within the said counties hereafter, shall hnpannel any person contrary hereunto,. he into lose for every pereon that he so impanneleth and returneth, not being of sufficiency as aforesaid, as often as he so offendeth, 405." Novf put this cas e , th at the-Bailiff returns to the Sheriff per tains not duly qualified, according to this 'statute, what is the Sheriff'to do ? la he to take them, and thereby subject him- Kell to the penalty of f ort y s hillings for every one ? or is he to leave the business of the Torn undone ? or in order that the business of the Torn may be done, may be not substitute other persons in the room of those who are not duly qualified ? I have no doubt that the proper course for the Sheriff would be to reject the names of the persons not qualified, returned by the Bailiff; and to insert others who are duly qualified. The 3d of Henry the Bth has also been cited, and the mischief there recited is, " That great extortions and oppressions be and have been within the more party of all the counties and shires within this realm of England by the subtility and undue demeanour of Sheriffs and their Ministers, committed and done unto many persons in great number of the King's subjects, by mean and making and returning at every sessions—in taking and putting in and returning of name s o f suc h persons as for the singular advantage benefit and gain of th e sa id She riffs and their Ministers, will be wilfully forsworn and perjured by the sinister labour of the said Sheriffs and their Ministers, I by reason whereof, many and divers substanti a l p ersons ( t h e King's true subjects), contrary to good equity, have divers times and many wrongfully been indicted of divers murders, felonies," &c. &c. This was in respect of the persons who were ' to serve upon the Grand Inquest. To remedy this mischief, it was enacted, " That all panels to be returned which is not at the suit of any party, that shall be made and put in by every Sheriff and their Ministers, before any Justice of gaol-delivery or Justice of the Peace, in their open sessions to inquire for the King, shall be reformed by . putting to or taking out the names of the persons which so be unpanelled by every Sheriff and their Ministers, by discretion of the same Justice before whom such panels shall be returned." There is an authority given by the Legislature to the Justices of Gaol-delivery and Justices of the Peace to do that which, by a late Statute, the Sheriff at his Torn might do, to avoid that mischief either to himself or the Public, which Ihave already pointed at. A case has also been alluded to quoted from Cro. Charles, the case of Crane v. Hol land, where there was an error of judgment in Northampton ; because, in Northampton, the Court being held before the Mayor and two Bailiff's, the venire facies upon the issue was awarded to the two Bailiffs to return a Jury before the Mayor and Bailiffs, secunduin Convict udinctn, which being returned and judgment given, the error assigned was, because the Bailiffs, being Judges of the Court, could not also be officers to whom process should be directed, there being no custom that can maintain any to be both officer and Judge." But all the Court conceived it might be good by custom • and that it was not any error, for the Judges are not the Bailiffs only, but the Mayor and Bailiffs ; and it is a common course in many of the ancient I Corporations, where the Bailiffs are Judges, or the Mayor, arid they are Judges, yet, in respect of executing process, they are the officers also; anti one may be Judge and officer diversts respectibu:, as in re-disseisin the Sheriff is Judge and officer. I There they overruled the objection, and held for the judgment. 1 There has been also a passage cited from Mr. Sajeant Hawkins, where it is said, that ' a Judge of the Court of Record may im pose a fine upon all such who shall be guilty of contempt in the face of the Court." Also, there seems to be no doubt but that he may impose " what reasonable fine he shall think fitting upon a suitor refusing to be sworn, or upon a Bailiff refusing to make a panel," &c. From thence it is inferred that the duty of the Bailiff was not merely to make out a panel, but to summon and return the persons who were to serve. It is said that ac cording to the expressions here used by Serjeant Hawkins, if the Bailiff is to make the panel it would be absurd to fine the Sheriff for every person whom he might direct the return of. But it seems• to me that no such inference can be properly drawn ; for if the Sheriff direct the Bailiff; who is to make the return—if the Sheriff, at a Court, (which I conceive is the most ancient practice) when the persons are present not summoned, selecting certain names, might lawfully direct the Bailiff to write out the names and put them on the panel ; this would be giving the full effect to this expression. But there is another way of putting it, namely, that it all may apply to the traverse Jury—nat to the Grand Jury. But let us look at what is the practice in another case. Let us take a writ of inquiry. There the Sheriff is the Jude. There no issue is to be tried, the Sheriff names the Jury in all these cases—he is both Judge and officer; that is, he directs the summoning of the Jury, to come before himself to assess the damages. In the case of re-disseisin the same thing takes place. Looking at the whole of these cases, can we say that this custom is contrary to any known rule or principle of law ? It may all be very true that the more common practice is the other way. But is it, (for the ar gument resolves itself into this,) that because a matter may be done in one form, that therefore it cannot be done lawfully in any other form. That seems to be the whole of the argument. Now this is not conformable to good logic or to good law. The instancessamet opmg eeosgnene mtnaa t ftr i t n ot c hn :c m :awe tnnceh a ay y ri wstoci ikh b wiedan e enitpo: p tetwohir h tlkisheel y orea s ris c usi tassl( ec;e:topybtrohrprinciple accomplished pcnifloon: nuu tpeonnhlfttoei slfooat I.twfu i wr n wi a:ottwo: Imwt different f re r fiepir w a ysewnichtnthe re for e d. various wi f t s ar h ry a th an lt th think .eivijru. t th a t up on s u ttoi p co o t n hie t i h : i;stilattertyoJury; y In ___ ) t i h a : En t k o ti f t itnlheke evidence whi this caseful l must y t h g e rvee warranted j: i s d i n ; 4 -) f the observations he made towards their finding the verdict which has been found; and therefore the rule must fail as far ass depends on that ground. Then the next qUestion is, whe ther the custom which has been pleaded of the Steward to no minate the Jury, is in law a void custom ? The common course is, for the Bailiff' to summon the Jury ; and that inde pendent of any special custom has been held part of his duty ; but, except whore a special custom has been found—and we are now on the second point taking it to be properly found, that this custom has existed, in point of fact, . that the usage has been immemorial, not for the Bailiff; but for the Steward, to nominate the Jury—that has been insisted to be a bad custom in point of law, that it is incompetent for him, the Steward being in the situation' of a Judge of the Court. 1 think the authorities which have been cited, together with the usage which has constantly prevailed with regard to Inquests before the Sheriff, where the iiheriffsits as Judge on Writs of Inquiry, and where he nominates the Jury it appears to chew that the custom is not inconsistent with, the principles of law. The Statute of Henry VIII. for reforming of a Jury, giving the Judge the power to do it where the summoning , officer has not properly executed his tipty, shews that the Legislature did not consider it inconsistent with any principles of law ; that lie being in the situation of a Judge, if the officer had not dune his duty, might take on himself the same o ffi ce by reforming the panel. That I say shews that it is not against the prin ciples of common law,.. and we find it also from the ttsage which has prevailed of Sheriffs sitting on Writs of Inquiry.— And unless there be some Statute which operates on it or repels and affects that which would be a good custom, which it appears is founded on a principle of law in the instance I have stated— unless there be some Act of Parliament or statute to deprive a person acting as Judge from nominating the Jury, we cannot consider it as a void custom in point of law. The only statute which seems to bear at all on the point is the statute of the II th of Henry 4th; but that I think does not apply to the present case. The statute of the 1 1 th of Henry 4th was passed to correct an abuse which i existed, with regard to n aming p er . sons on the panel done by mproper persons, and not by the sworn officer of the King, previous to the pa: nel coming before the Judge. It was only meant to affectpersons who had no authority to do that, and it does not extend to cases, it was not meant to extend to persons, whose duty it was, by virtue of their office, to take any part in nam ing the persons in the panel. For the latter part of It says, " And that from henceforth no indictment be made by any such persons, but by inquests of the King's lawful liege people, in the manner as was used in the times of his noble progenitors, returned by the Sheriffs or . Bailiffs of franchises, without any denomination to the Sheriffs or Bailiffs of franchises before made by any person of the names which by them should beim panelled, except it be by the officer of the said Sheriffii or Bei. lifts of franchises, sworn or known to make the swine, and other officers to whom it pertaineth to make the same a cco r di ng to the law of England." Therefore, it pertaineth to the Steward by the law of England, I mean by the special custom of his office, it leaves it exactly as it was, it did not at all mean to af fect those pawns. Then in the case of Crane v. Holland, that case goes decisively on the principle which has prevailed in the case of Sheriffs who as Judges, and nominate the Jury who are to try the case. There the . Court said, that the Bailiff was not the sole Judge, for the Mayor acted with the Bailiff, and presided overhim, yet he the Bailiff, was to be taken in point of fact as a Judge, but the note only states that the Bailiffs were not the sole Judges ; but, Th e Court go on to decide th e case upon the principle which applies, in my opinion, to the present case. And 'all the Court s a id it might be good by custom, and that it was not any error , for the Judge s are not the Bailiffs only, but the Mayor and Bailiff's, and t is a corn. mon course in many of the ancient Corporations wh ere t h e Bailiffs are Judges." It applies to cases where the Bailiffs only are Judges, and also where the Mayor and the B a iliff s are Judges. " Yet, hi respect of executing process, they are the officers also, and one may be judge and officer diver:is respeeti. bus, as in redisseisin, the Sheriff' is judge and o ffi cer, on which the. judgment was affirmed." Upon these grounds I think the rule must be discharged. Mr. Justice BErr.—We are not called on to decide what the general rule of law is on this sabject, but whether the custom is good for the Sheriff to return the Jury, or the Steward ? That question has been submitted toe Jury whether from time imme morial the Steward has usually nominated ? The Jury have found that from time immemorial helms nominated, and the question we are to decide, is whether such a custom is good? Now, if such a custom can be good, it must have existed from time im- memorial, and no authority is here cited to chew that this Is not a good custom, The only one which looks like an au thority, is that which Is cited from Chief Justice Scroggs, where the form of a precept is set out, and in which the bailiff is tli rected generally to summon, But that will not be found to bear on the present question, for the utmost that it will prove is, that generally speaking the Bailiffsummons, but that does not prove that there may not be such a custom as is contended for here in this particular ease, where the steward is the person who summons. If it is necessary to prove that there can be no such custom, no authority has yet been cited for that, unless there is a distinction between this case and the case which was stated to us in the argument by Mr. Carter, in the case from Croke's Charles, in which i t was determined that the Bailiff and Mayor might act in the double capacity of Judge and Officer. If that is so to be taken as a general principle in Corporations and other places, the Sheriff and Steward of a Court Leet might act in the double character of a judge and officer. But Mr. Carter attempted to distinguish that case from this, and he says in the present case the Lord of the Manor is interested in the Manor in which the Juries may be returned, that the Steward being ap pointed by the L'ord of the Blanor, ; he is therefore an improper person to nominate the Jurors, inasmuch as he may nominate a Jury who may impose fines which are to find their way into the pocket of the Lord of the Manor. But I don't think that can be considered in law as a sufficient interest ; for we might as well go the length of saying that a Sheriff cannot be a proper officer to summon aJury, for a Sheriffis appointed by the Crown, and the Crown receives the fine, and the Crown appoints the Judge, who till the late r e i gn was only appointed during the pleasure of the Crown. I think it is irapossible that that can be a sound principle ; for the doctrine of interest can be carried farther than the case which Mr. Carter has cited, namely, that the Lord cannot interfere where he is to have the benefit of the amerce merits himself. It cannot be carried to that extent. We know that in many Corporations--(as in the case cited from Cro. Charles), the same person is both Judge and Officer. Certainly in the greater part of them we know that the fines imposed be long to the Corporation, yet there the officer, according to the other part of this case, acts in the double capacity of officer and Judge ; in the character of officer he summons the Jury for the Court Leet, and in his character of Judge he imposes a fine which is to find its way into the pocket of the Lord, Now a great number of Statutes have been brought forward to prove that this custom is not good ; but it appears to me that none of them can be considered as authorities, as direct authorities upon the question. The 11th of Henry the 4th has no reference'to it, —it directs who the persons are who ought to return the Jury ; but so far front being an authority against the custom, I t hi n k it is an authority i n f avour o f i t. All that the Legislature had in view in passing that Statute was,—not -to prevent the Judges from interfering, but to prevent those from interfering who were not Judges. The Statute of the Ist of Richard the 3d, chap. 4, was passed to prevent persons, who were not of responsibility, from discharging th e o ffi ce o f J urors, an d the Legislature hav ing this in view, directs who the persons were that should re turn the Jury ; the names of the persons who are mentioned, are only those who are most usually employed in summoning Jurors. We all know that Bailiff's are the persons who most usually arc employed to summon the Jury, therefore the Statute uses the words Bailiff or other Officer, who shall summ on any person who h as not l an d s an d tenements freehold of the yearly value of 20 shillings, shall he fined 40 shillings for elm such per., son." The next statute which has been mentioned is, I think, a pretty strong authority in answer to the application. It is the Ist of Elizabeth, chap. 1, which, as Mr. Adam says, has a title that would not lead one to expect to receive much information upon this subject. " And if any Jury sworn in any Le e t, and being charged to inquire of the offences committed within the pre einct of that Leet, do wilfully and willingly conceal and make default in presentment, or do not present the offence and of fenders, that then it shall be lawful to the Steward or Bailiff of the Leet, or his or their deputy for the time being, to em. panel one other Jury within the said Leet, and to inquire of the said concealment, default, or non-presentment. and upon such concealment, default, or non-presentment, found and pre sented, every of the said jurors which so did conceal,:make de fault, or non-present, shall lose and forfeit for every such of fence twenty shillings t o th e L or d o f t h e sa id Leet. ' So that the Legislature felt no difficulty in saying that the Steward would be a proper person to summon the second Jury ; they did not foresee that there could be any such objection in his in terference with the second Jury, although the fine to be im posed upon the persons who had misconducted themselves upon the former Jury was to go to the Lord. The only other thing which I think it necessary to advert to is the passage from Vizier's Abridgment., which every body knows is the case out of the year Book which Mr. Coltman has mentioned, where a. Bailiff was fined for refusing to make a panel ; but it is a very different thing refusing to make a panel, and varying a panel when made. It does not appear to me that there is the slightest touch of authority, to say that the Steward is an improper per son to summon the Jury; but we are not now called upon to decide upon the general rule of law. But, as my Lord Chief Justice has said, there are cases which may be considered as analogous to this t there is the case of the Sheriff who sum mons the Jury, and who presides at the inquiry ; and 1 may add, that there is the case of the Coroner who summons the Jury, and though it is the Jury who are to find the verdict, yet his is a judicial office, and his duty is to preside in the Court. We are not to decide on the general law, but merely whether the custom set out upon thi s record can be considered a void custom, and I have heard nothing which satisfies me that this custom in point of law can he said not to be good. The Jury who heard the evidence in the ca se found it was a good custom; 1 therefore think there is no ground fora new trial.—Rule discharged. SINGULAR MISTAKE.—At an early hour yes e a man W/18 observed walki ng , along Piccadilly, c arr yi ng something on his, shoulder, having th e a p pearance of a dead body ' , wrapped upr morning a insheet, and the ci rcums t ance t r rd i ao attracted the curiosity of several individuals, who. were led to suspect he was a resurrection man,, and they followed him a considerable distance, until at length their suspicions were strength ene d , by something i n th e s h ape o f a h uman arm pro truding itself through the sheet. A great crowd. soon assembled, and being convinced that soma neighbouring church-yard had been plundered, they commenced a volley of invectives against the supposed body-snatcher, who seemed to endure it with the greatest patience, lie was given in custody to the watchman, who conveyed him and. his subject to S t. J ames ' s watch-house, where an ex. position of an extr aor di nary description took place; for on opening the sheet, it was found to contain a cork form, representing that of a human being dress ed in female attire. The worthy constable of the night and the confounded Charleys all gazed at each other with astonishment, not knowing what to make of their prisoner. They detained the man until he brought forward somebody to prove how he came by it, and yesterday morning he was brought before Mr. CONANT, the Magistrate, when a Gentleman, an artist, residing in Spring Gardens attended, and stated to the Magistrate that the cork lady was used to make lace dresses upon ; and having explained to the satisfaction of the Magistrate that the prisoner was employed to carry her Ladyship to a person from whom she was borrowed —he was disc4arged. • COURSE OF EXCII4NGF, June 13. Atustetdam Ditto, at Sight Rotterdam lt HO Antwerp lt 9 Hansburgli . 88 oti Us. Allow' .. Paris,3 Day's sight 24 85:. 0 Vs., Ditto llourdeaux, ditto Frank (Orton the Main Madrid Cadiz BI1I)oa 36 Ettectik Barcelona Seville Gibraltar , . '304 Leghorn Get 3 . 46 .•.• . .. ... 43 —.—Venice, Ital. Liv 4B 10. Malta 45 -----Naples 2O . Palermo ' 115.13 per Os. . Lisbou Oporto RioJatieiro .. ' 47 Diiblin .... 91 Cork 91 pet Cent. BULLION. ,Portugol Gold, i n Coin 1.0- 0 a pet Os. Foreign Gold, lii hats " 3 1, h New Doubloons .. .3 15 . 0 New Dollars 0 4 9 Silver in Bars, Stamford • • n ,4 11 Ships at Market? OAL-1 1 1A 8 R h if p yr sold russ: 13. Pric 48i.Newcastle 32 o, 32s Od $0 401 m Sunderland - 14 -33 s ad to '42* Gd 0 Scotch Coal - 0 04 to —s Od Printed and Published for the •PUOPRIEVOuN, `at the ,Orrict, 1)2, Strand, by J. R. CAMITAIIS. 3