The British Press; or, Morning Literary Advertiser.
London, England, 1826-08-18 00:00:00

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formation, in order that it might be brought into that Court for
final judgment, I think that your Lordship cant
hetet:de to say,
that this is • fit fie a certiorari, in older that it may be tried
by a Special Jury, and that there be not iiepoteed on an individual
Judge the
oarronsibility of trying and deciding points of law which
are likely arise on a Statute, which has not often been proceeded
under. On these grounds I submit to your Lordship that it is ex-
pedient nut to try the defendant now. Ve have hail no suggestion
of any grounds of urgency why the trial shouhl now be proceeded
in. If such pounds exist, they can wily be offered in affidavits,
and those affidavits we ought to have an opportunity of considering.
On that grttund 1 shall say no more. as I do not wish to invite
premature discussion. But I could suggest to your Lordship
strong arguments that may arise upon the admissiffillity of
precut.r wimps, and questions at the last importance as to
this defendant, which will probably arise at the trial, and I
hope I shall rot suffer in the opinion 4f your Lonlship ; if, in
the carte' discharge of my duty, .haTe advised my rlient not to
repose in the judgment of any single Judge, but to avail hhoself off
the combined lemming, and wisdom of all the Judges of the (oust 0
Kiun'e Bench, to give weight to a judgment which any be
so highly penal in esenneeeptences to him. • I therefore think this
a fit case tor the favourable exercise of your Loydehip'e discretion.
I live no wish in putting oft the trial to en•ele the defeetlant to
escape justice, if amenable to it : because your-Lordship may take
heavy bail for his appearance. But, situated as this defendant is, 1
think the interests of justice will be best answered by deferring the
trial to the next Assizes, so that the .hole trial may come on at
once, and that one dt temant allay not be prejulliced by
thet trial of
the other. I hope, therefore. that your leirdship will of that
opinion, and will not apply that infringement of the common law,
which was introduced by the statute. to the present ease.
The affidavit on which Mr. Scarlet' moved was then put in and i
read. It was as follows:
" The King against WiWain Wakefield, indicted together with
Edward Gibbon Wakefield.
s' The King against William AVakefield, indicted together with
Edward Gibbon aValtefichl, ,etheaid Thevenot, and Frances
Wakefield.
" ai'illiam Wakefield, of Reading, in the County of Reek's.
Esq., one of the above-named dee:whine*, and Joseph Denison. of
Mimeheiree, in the County of Lancaster, at mncy for the above-
named Helena/it, Witkelielsl, weevilly make oath and
say; and fret this•deponent. the said William Wakefield, for
himself ratini that two several indictments have been found against
this deponent. by the Grand Jury for the Caney Palatine of
Lancaster. at the present aseites, holden in and for the said
county, fur a iniretememiour, in one whereof he is charged under
a attain statute, nude in the fourth and fifth year of the reign of
King Philip and Queen Mary, with assisting in the taking and con-
veying away one Ellen Turner. and procuring her to be married
to the ahovemsmed Edward Gibbon IVakefield, contrary to the
form of the statute; and in the other of which said indictments he
is charged with conspiring with the Other defendants therein
mentioned, to procure by unlawful mean.: the said marriage to he
effected; to both which indietsuents hr. this deponent. bath pleaded
that he is not guilty thereof, and he is advised by his Counsel
that be may be tried on the first of the same, at these assizee; and
this deponent further saith. that front the time of the alleged com-
mission of the offences with which lie has been charged as afore-
reel, down to the middle of site month of June last. various
paragraphs have appeared in a certain paper, called the 3farefes-
ele/J Cosner, which, as this deponent bath been Informed, and be-
lieves, lessen extended circulation, and is generally read in many
parts of this county, giving an unfair and untrue statement of the
facts rebeiog to the said alleged offence, and tending in a very
high degree to inflame the mind of the public against this depo-
nent; and in prouf of this, he the raid defens'ant craves leave to
Mir to a copy of a parsereph from the MaITII,AId Carver, of the
date of the 19th June, 11e16, mareed with the leter A, and
hereunto annexed; and this deponent further saith that he
bath been informed by his brother, the said Edward Gibbon
Waketied, and which information he verily believes to he
true, that it is his intention to apply to his Majesty's Court of
King's Bench, at IVeetnenster for a writ of rertineerri, to remove
the said Iwo indictments, found against him, the said Edw. Gibbon
Wakefield, and to bring the unit down to trial at the ensuing
Spring Assists, benne a Special Jury of the county of Lancaster.
And this deponent. the sled Joseph Denieun, fur himself teeth,
that he is infonneal by his Counsel that several questions of great
nicety and difficulty in points of law are likely to arise upon the
trial of the eeki indictments, the more particularly as he is Ir formed
that no prosecution has taken place under the said statute of Philip
and Mary for a very long pelitlti of years, anti that there are few,
it any, juridical decisitots upon the said statute. And the said de- i
weenie severally say. that, for the reasone above stated, it is ex.
timely desirable, and they are very anxious, that tie trial of this
deponent. the said William IVaketield, may be postponed to the
ensuing Spring Assizes, in enter that there may be an appeal to
the Court of King's Bench upon any question of law that may
alive, and that there may be time for the ferment at present existing
in the public mind to be allayed, and that the investigation may
take place before a Jury whose superior rank and station in life
near protect them from any ',tender prejudices. And these de-
ponents severally say, that since their arrival at Lancaster, (luring
the Assizes, they have, for the first time, learnt and been intiimiett,
and which information they verily believe to be true, that Richard
Bad:tall. the younger, of A:eh:ulnas: Ilan, in the county of Staf-
ford. Esq., can give via: tell evidence for this deponent, the seid
William Wakefield, upon the trial of the said Indictment., but
that the said Edward Retinall is now absent in France, from which
place he is expected to return in the course of a few weeks. And
these deponents severally further say, that from the circumstance
shove mentioned, it was impossible to serve the said Richard
Bednall with a subpoena to appear at the present Assizes;
but that they verily believe that they shell be able to pro-
cure his attendance at the Assizes to be holden at the en-
eueig Spring. And this deponent, the said William Wake.
belt!, for himself, with. that he is infunnest and believe+, that
on or about the eacond day of August instant, copies of subpasna
were sent to 31r. Hurst Sitwell, 31iss Harriet Hoerr, and leomiumk
Daly, E q. who were at that time in France. requiring their attend.
ce at the present Amite*, as witneues on behalf of this deponent;
and this deponent has reason to believe, front the answer teem to Mill
by the said last.mentioned persons, and did fully believe and ex-
pect, that they would have attended in Hurst
of the 'said tub-
pare; but that neither the said Mr. Hurst Sitwell, nor Horrid
Hoare, have yet arrived. And this deponent further sai'. that lie
verily believes and expects that the said Mr. 11.Sitwell and 11.11tetre
will be in England, where the said Mr. Hurst Sitwell usually re-
liefs, in die omen of the ensuing winter, and that he, this depo-
nent will be able to procure their attendance at the next Assizes.
.Ind this deponent fluffier !tape, that a letter has been received from
the said Dominick Daly, Esq. In which he states that from a para-
graph which he has read in the Siln newspaper, he understood that
tliireestattin'd)t.ttli:.iets deponent
etireteqwu el): eel d tnhoetreot?heillsali.eouttl notthe iftrteesnetln
t As-
deo:omit verily believes and expects that he will return to England
in the course of a few weeks, when he shall be able to enforce his
anendsnee at the melt Assizes. And this deponent fnrther says,
that he has used all the diligence in his power to procure the attend.
ante of the said .jr. Hurst Sitwell, Ilarriet Hoare, and Dominick
telly. And both these deponents severally say, that they have
been advised by their Counsel. and they do believe. that the said
legit-mentioned persons are material and necessary witnesses for the
Raid Wm. M'alti field, and that without their evidence he cannot
safely proceed to the trial of the said indictment, or either of them..
(Signed) " Was. ‘I'AXEI'IELD.
"Jos. Dewisox."
The paragraph alluded to in the affidavit, marked A, was not al-
lowed to be read, 31r. Justice Park observing, that hy giving it
publieation they would only increase that prejudice of- which the
Attie/We'd cemplitined.
Mr. Al"loit%ev-fiennaite—lt does not appear. my Lord, that
my Learned Friend the Attnyney-General (3lr. Se:erten) has either
in his statement or upon affidavits laid sufficient grounds for call-
big upon your Lordship to postpone this trial. I must beg leave, in
the first hietance, to fetal to your recollection the situation in which
the defendant William Wakefield stands. As far back as the moreli
of April last, applicatien was made at the Court of King's Bench,
to admit this gentleman to bail. Upon that occasion, the whole of
the charge against him was particularly stated in Court, and inves-
tigated very minutely in his presence. Accordin g to his 'statement then
made upon oath, it appeared that he, in company with his brother
Edward Gibbon Wakefield, had by imposition and fraud obtained
Pomeetion of the young lady named in the indictment. It also
%Tested tied they had by a succession of falleheods, which 1 don't
wish to characterize by Any other term, induced the young lady to
accompany them into Scotland, where, by a continuation of a sys-
tem of fraud, and by working upon her feelings in various
ways, they persuaded her to contract matrimony with the brother
of the present defendant, and by continued frauds and Mtn-
hoods, to accompany them to France, where she was afterwards
taken from them by the exertions of her father's relations. All
this was communicated to the defendant in the month of April
tau, when it became a subject of discussion whether the offence
with which he stood charged did not amount to felony, under
the statute of Henry VII. Probably, if the Learned Judges of
the Court of King's Bench had thought the offence amounted to
hiwne, they would nut have admitted him to bail. flow.
ever, after considerable deliberation, the Court of King's Bench
agreed to admit the defendant to bail, and he having
been brought before the Court by Habeas Corpus, was it
upon giving bail, and, upon my !suggestion, a particular
film of reemenizences, to answer not only the particular charge
founded upon the Statute of Philip and Mary, but any charge
which might be preferred against him, founded upon the facts
hill berme the Court of King s Bench upon affidavit, was en-
tered into. 1 mention this in order to show that the indiviiluel
now making this application has had sufficient opportunity for
preparing his defence. One argument is, that the defendent
ought to be allowed time to apply for a certiorari, in order to
leave a trial by a Special Jury. Sly Learned Friend hiss made
snore (A:iterations upon en Act of Parliament which bee been
re!coile passed for the purpose of preventing delay in cues of
misdemeanour,
and my Learned Friend says, that the defendant
4wlhad 50 opportunity of applying fur a certiorari under the
c"lotruction of that Statute, because, as illy Learned Friend says,
there was another person who could not join In the application.
Now, 1 apprehend,my Lord, that it is every day'» pructtee, when
two Persons are in custody upon a charge of intedemeatiour, that
one of them may apply fur a Certiorari without the consent of the
tuber, and this the Court will grant the Certiorari, if sufficient
Enwids be laid. I recollect a case, in which my Learned Friend,
r. Broaghasu, was engaged. It was an application for a CeT..
h9llrio made by en Individuel, indicted with others fur a conspiracy.
yet of th ; objections to that apylieet ion was, that all the persons
die rot join in it; but the Court, upon that occasion, sild,
dot that efeewmatence did not fetter their diectillitn, and that they
Yule' grant a Certiorari upon suffieieet groentle bong lola. My
Frical has observed, that the Act ue t'erlierheut which: lieu

been already men.ioned was not made by a lawyer. hether or not
it was made by a lawyer, it is, I apprehend, perfectly imma-
terial in the present case ; for your Lordship, upon looking into that
Sedate, will see that W. Wakefield has had ample opportunity of
applying for a Certiorari. if he hail thought lit. Whether a Certio-
rari could be applied fur out of Term, is also immaterial to the

present case, bemuse the transaction 'originated about Christmas.
Nrilliam Wakefield was taken into custody. I think, in March, and
:on application for a Habeas Corpus to bring hint before the Court
of King's Bench was made in Easter Tenn following' to that
two :terms intervened, and he might, if Incthmtglit proper,
. .

„ . .
employ the intervcitir.g time in applying tor a Certiorari, if lii. wish
Wan to be tried by a special Jury. 1f he Ind wished tonvail himself
of that opportunity, it would lie for the Court of King's !tench
to decide whether or not his application could be acceded to.
apprehend, my Lord, that oy !warned Friend puts the proposition
much too strongly, when he says that a Certiorari, in such cases,
is a matter of course. I Ray, my Lund, that when an application for
a Certiorari is made, the Court is bound to examine and to con.

sitter all the !'acts of the case, and to decide upon those diets; It he-
that or not the facts would justify the issuing of the writ. In this
case, it is sufficient to say, that the defendant had sufficient time to
apply fur a Certiorari ; that he might have done so if lie pleased ;
that he has not done so ; and, theretkre, that this application, upon
that ground. cannot he entertained. 31y Learned Friend says, that
no Special Jury can be struck without a Certiorari; but, I appre-
hend, that he might make an application to your Lordship for a
Certiorari. in all cases under treason or felony ; and sucO applica-
tion might be made under the :111:h Section of the tith lfeurge IW..
which provides that, in all cases under treason or felony, the
Judges in the Courts of the Counties Palatine might grant writs of
Certiorari.
Mr. Justice Pea►:—There is a Cereiorai, which issues from
my authority, as Chief Justice of the Common Pleas of ',anteater,
into the Crown Office. . .

Mr. Hopkins (Clerk of the Crown), and Mr. Phillips, said it
had been the practice for 60 years, in the County Palatine, to grant
Special Juries.
.Me. SCAnLETT—Bat a Certiorari must be first obtained. I re-
member, when Lord Chief ]tarns al•Donald first came this cir-
cuit, that I applied to your Lordship, ns Vice-Chancellor of this
Duchy, for a Certiorari on behalf of some persons who had been en-
gaged in the nous m LTlverstone.
Mr. Justice PAKK—Yes, there must be a Certiorari first, but
perhaps the Attorney-General for the Duchy, high as his office is.
does not know that I art here, not onlyas a Judge of Oyei and
Terminer, but as Chief Justice of all Pleas of the Crown at Lan-
ewer.
Ala A TTalia ge-G e—Then it is quite clear that the de-
feadant has had an opportunity of applying to the Court of King's
Bench for a Certiorari, and that lee might apply to this Court for a
Certiorari, and therefore the ground that this cause ought to be post-
poned until a Certiorari should be issued, for the purpose of having
it tried by a Special Jury, entirely fails, foe when the defendant had
passed by his opportunity, it is too late fur him at this period of the
Assizes to make an application to pos•pone hie taut. Al y Learned
Friend says, that this trial ought to be postponed because of the corn-
plexities and difficulties which It involves; but I must say, my bard,
Mat upon reading the statute of Philip and Mary, upon Mach the
indictment is founded, the language of it appears to me_ to be so
plain, so simple, and so intelligible, that it is idle to say that the
couiplexities of the statute form a sufficient ground for postponing
the trial. al y Learned Friend goes too far when he says that the
defendant will have opportunities of having the case Mies-
tigateel, by having it moved into the Court of King's Bench,
I which he would not have by having the trial before a single Judge
jof Assizes. When my Learned E rieutl made that assertion, lam
satisfied lie must have forgotten that if your Lordship, in the
course of the investigation, should sec any difficulty in the point of
law, you have authority to refer it to another tribunal for their
grave deliberation ; and therefore there is no ground for a post.
ponement on that point. I shall now come to another point, which
my Learned la iend has nut adverted to, but which forms a promi-
nent parts in the affidavit on the part of the defendant. It appears
that some article was published in a newspaper called the Maccles-
field Cornice' relative to this prosecution. Now it must be remem.
bend that that newspaper is published iu another county, at a place
about an or flO milts distant from the place where we now are, that
it is a newspaper of very partial circulation ia this county that
die article complained of was published in the month of 'June
last, and that it was en article in reply ;o an article which had ap-
peared in another newepaper, commendatory of Mr. Edward Gib-
bon Wakefield, and of his father and relations. It is remarkable,
my Lord, that the Gentleman who makes an affidavit, complain-
ing of the article in the Maccbagicld Cornier, does not swear
that be bad nothing to do with the first article. I think whet,
j lie comes before your Lordship, and urges ail a ground for post-
poning his trial this article which append in the Macclesfield
Concise, that be ought to state in his affidavit that he had nothing
to do, ecit!tet directly or indirectly, with the original article, to
whichatite one complained of was a reply. The article in the
dlacclogield Counter is nothing more titan a comment neon the
other article, of which the defendant does not venture to swear that
he had no knowledge. Another subject of complaint is the part
taken by the public press generally. With reference to that cir.
canistance, what will sour Lordship say when I tell you that one
of the defendants in this indictment has published a long detailed
account of the proceedings, containing the basest insinnations
upon the character of this young lady ; but finding that this pub.
lication did not produce the intended effect, he afterwards denied
it. I shade however, satisfy your Lordship, that this statement
was published by the atehority of the defendant's relation ; and I
shall also satisfy your Lordship, that a manuscript copy in the
hand-writing of one of the defendants had been sent to Mr.
Turner, the prosecutor. What think you, my lead, of the nab
who corner forward and eoinplains of the public prese, after having
used it f r such bad and infamous purposes ? Another ground of
postponement is, that a p non named Daly, cannot appear to give
evidence at the trial. %Ye all know to what Mr. Daly alludes,
and my wonder and surprise is, that the man who comes for-
ward and asks your Lordship to postpone a trial upon such
grounds, does not swear distinctly that he hed nutting to do
with those paragraphs which have appeared in the newspapers,
that lie is not the author of those paragraphs, or of the para-
graph referred to by Mr. Daly ; anti that he does not know
by whose authority or at whose expense it was inserted. As
he has not ventured to swear to that died, I think I may
fairly call upon your Lordship to conic to the conclusion, that
either he is the author of dime paragraphs, or that he was
the instrument of another permin in publishing them, or that
be knows something about them. The paragraphs complained
of appeared two months ago, and I trust your Lordship will
nut, upon an affidavit which is so perfectly silent as to the
peat taken by the defendant in publishing them' say that the
publication of them forms a sufficient ground fur postponing
the trial. There is one material par: of the affidavit to which
I beg leave to call your Lordship. The principal ground re-
lied upon is the absence of mitterial witnesses—W. Badnall,
Esq., of Axberhurst. Oxfordshire; Alias Harriett Hoare; Mrs.
Hurst Sitwell, and 11r. Doinisiidc Daly. I beg your Lord.
' ship to observe the words in a Lich the absence of those witnesses,
and the materiality of their evidence is bWOIn to, and having
done so, 1 may enffidentla call upon your Lordship to say, that
upon that ground this trial cinnot be postponed. First, with
respect to Badnall. 3lr. Wakefield swears, that he knew nothing
about Mr. B. until the commencement of the present Assizes;
'aikat he is now informed and believes that ,lr. B. can state
something material for his defence." 1 have always thought, arty
'Lord, that a person swearing that he was informed, and believed,
teat a certain person could state something material for his de-
fence, was bound to state by whom he had been so informed. HON,
if this part of the affidavit should turn out to be un:rue, could Mr.
111% Wakefield be indicted for perjury ? Ile also swears that lie has
le en informed that Mr. Hadrian is in France, but dues not swear
that he has taken ordinary pains to ascertain that fact. lie does not
swear that lie has even made inquiries at the residence of 31r.
Itatlnall, in a neighbouring county. I therefore submit to your
Lordship that those general words a. inMrnied and believed," with-'
out stating that ordinary pains have been taken to ascertain the fact,
will not be sufficient to warrant your Lordship to postpone this
trial. Next, with respect to files. Hurst Sitwell, bliss Harriet
Hoare, and Mr. Dominick Daly, it is merely sworn that copies of
subpoenas have been sent to them to France. Your Lordship is
aware that every circumstance, every fact, sworn to iti support of
this indictment, ;was known to the defendant in the month of
April last. Did he iminedistely order subpoenas to be served
upon his a itneeses ? No. What are the words of the affidavit ?
" That on or about the 'id of August," copies of subpienas had
been sent to France, to be served upon those persons. On or about
the 2d of August might mean the 4th or bib of August, just two
days before the Assizes. Does it appear, my Lard, that the de-
fendant has ever insole any inquiries about those witnesses, that he
liar ever made any application to them to attend and give evidence.
that lie has ever written letters to that effect, or that he has received
any answers from them ?
31r. Justice Paine—Upon that part of the affidavit, there is
one observation which must strike every one accustomed to the
nature of evidence, namely, that to this part of the affidavit, ale.
Wakefield only swears he is informed, and. believed that sub.
ptenas ham been sent to France, but lie dues not say by whom
they have been sent. In that part of the affidavit he is not joined
by his Solicitor, file. Denison, who is a most respectable man, and
who is, in my opinion, the person who ought to know must about
those matters.
Ale. ATTORNEY-GENERAL-1 was about to observe to your
Lordship, that file. Denison, whose duty it is to send those sub-
etenite, is silent upon that point. If subpsetets have been sent,
who jaled be so well able to speak to that fact as AI r. Denison ?
.Me. Wakefield states, that he has received answers from those
persons, but lie does not state to what species of application he
liar received those answers.
Mr. SCAR LET T—To letters, no doubt.
Mr. ATTORNEY-GENEIIAL—It does not appear upon the face
of the affidavit that any letters have ever been written to those
persons either by AI. Wakefield or by anybody else. I am well
aware of the pains which hate been taken in preparing this
affidavit. Fur a whole day that affidavit was under considera-
tion before we could procure a copy of it. It cannot be doubted
that eve), word contained in it has been considered and deli.
berated upon again and again. There can be no doubt that the
Learned Gentlemen under whose advice it has been prepared
have gone as near the wind as they could ; but notwithstanding this
Mr. W. has not ventured to swear that any letter has ever been
written, nor from whom he has received the infonuation w whieli
he swears in hie affidavit. Now, with respect to Mr. Dominick
Daly, that eiremmitance is open to the same observations, with this
additional obscrvaion—it is said that this gentleman has sent a
letter to same
.petsoa, Dot named, stating, that in consequence of a
paragrigh which he had seen in u newspaper, he did not intend to
tonic to England, to Eire evidence upon thin trial. Is E• G.
aliaaetali, or Nr.Waaaticld, the author of that paragtaph ?

THE EhIITISH PRESS.

it inseried by their authority, or with their knowledge? Mr. WM.
M'akefield does not swotr that it was nut, and 1, therefore,
submit that that part of the affidavit is not sworn in such a way as
to lay sufficient grounds for postponing this trial Your Lordship
knows that, in the case of a criminal prosecution against indivi-
duals, 1, as proaecutor, have a right to call upon them to take their
trials, unless sufficient grounds shall appear to your Lordship to
postpone the trial. I think it material, file the advancement of
public justice, to call upon one of those deteodants to take his trial
and I therefore submit, that I have matte out a case to justify me in
calling upon your Lordship, as a matter of right, to procetd; and
to 'eke care that the public justice of the country is not delayed.
Mr. Sergeant (doss followed on the same side. The pink-
calor hstl been here with his witnesses from the first day of the As-
sizes, waiting the pleasure of the defendant to know whether he
would be tried or not. This prosecution was no pleasant tusk to
Mr. Turner. Ile had been driven to the necessity of instituting
it by the conduct of the defendants. How could his Learned
Friend (31r. S.) know that there would be another. trial at the next
Assizes ? The principal defendant was domiciled out of the
country; and whether he forfeited his recognizance or appeared to
try, depended solely on his own will. Besides, other circurnistances
might occur. The prosecutor 'Waist die, or his witnesses might
the, and so the prosecution of Edward Wakefield might never take
effect.
Mr. WlLl.laatS and Mr. Ilmonottan followed on the same
side.
Mr. SCARLE CT in reply.—lf his Lordship were to give his
judgment according to the measure of the speeches on both sides,
he would have no difficulty in giving his decision, when he
saw four Counsel on the other side, exerting their utmost zeal.
learning, and address, tooppbse a motion, which he (Mr. Searlett)
regarded so much as a matter of course that he should have thought
it indecorous to have allowed any other Counsel to follow him in his
application. His Lordship would see from that circumstance the
opinion which the prosecutor entertained of the difficulty of the
ease. Some of the topic's upon which his beamed Friends had
expatiated were purely declamatory, and he hoped therefore to
be excused if lie passed them over in Ocoee, as not fit for con-
eldemtion In a case like this. !Wens safe that his Lord-
ship would nut be influenced by daelarstatlon. Indeed, if the
'observations of 31r. Sergeant Cross were to have any weight, every
prosecutor might come and tell them that his witnesses were ready,
and he or they might die before next Assizes; but such observe.
tions would, he believed, never be attended to it' there were good
grounds for deferring a trial. He should therefore attend to the
arguments which had been used by the Attorney-General. His
Learned Friend hail endeavoured to insinuate that he (Mr. S.)
disparaged the common Juries of' the county, of whoth he, bows
ever, would take leave to say, his Learned Friend did not entertain
a higher opinion than himself. What the law allowed a man to
do, the Court would permit him to exercise his own judgment as to
the propriety of doing. He would first observe, that throughout
the speech of the Learned Attomey•General, no answer had been
attempted to that part of his (Mr. Scarlett's) argument, that if the
defendant had previously applied to the King's Bench for a cern°.
earl, he would have been told that it could not be granted, because
it was uncertain whether a hill would be found for felony oe
misdemeanour. Had his beamed Friend contradicted the state-
ment, that when the Court of King's Bench liberated the defen-
dant, it declined to give any opinion whether the offence was a
felony or not ? lie did not think that any Counsel would nave haa
the courage to apply fur a certiorari where he was sure that he
would be met by the answer—s' We donut know what will occur at
the Assizes." So far, then, the Attorney-list..rat had not met
his argument. All that lie had said hail been, that the recognizance
of bail entered into had been so framed as to prepare the defendant
to meet any charge that might be brought against him. Now,
let them pureed by steps. Ills Learned Friend, the Attorney-(lene-
t:lh had told them, that if the defendant wanted a Special Jury,
he hail no occasion to apply for a cerflorari,because a Special Jury
might be granted in that Court, and Mr. Williams had told them
that such was the practice in the County Palatine of Chester. To
be sure it was. On the Civil Side the had the same rule as the
Court of King's Bench ; and on the Criminal Side the certiorari
was issued under the seal of the Vice-Chaneellete. He believed that
his Lordship had himself been the originator of the Act of Parlia-
ment which had assimilated the practice of Counties Palatine is the
practice of the Courts of King's Bench. By the statute of William,
the jurisdiction of the King's Bench to issue certioraris had been
limited, and it had been enacted that a defendant should remove
nothing by certiorari unless upon special application. Still, how-
ever, the Couctles Palatine had not been affected by that enact-
ment, and his Lordship hail introduced the Act which extended
the limitation imposed on the Coon of King's Bench to the Coun-
ties Palatine. Now, suppose the defendant had applied for a
certiorari to the lice-Chancelliw of the County Palatine, and not to
the Court of King's Bench, the effect would have been that the
trial would have been put off to the next Assizes,—so that the re-
medy proposed by the Attorney-General, in answer to his (31r. S.'s)
objection) would have been liable to all die objections now made to
the application. With respect to the rule which the Clam of' the
Court, Mr. ilopkins, had produced, he must admit that suds was
the rule, but then they should first put parties in a condition to ask,
before they told them that they might have a special Jury on appli-
cation. Why, in due case of Mr. Uunt, had he riot applied to the
Judge for a special Jury? His Learned Friend, the Attoeney-
'General, had next adverted to a topic which seemed to be address-
ed ad bwitlians to him (Mr. S.), and that was, the confidence re-
posed in Ida Lordship's judgffietit: lie (3[r. S.) was sure that In
any case of his own he should submit with the most entire confi-
dence to thedecision of his Lordship. But if Lord Mansfield him-
self were then sitting in his Lordship's seat, he should still say that
he would advise his client to remove the case into a Court
from whence he could appeal to the Court of King's
Bench. lie Was the more confirmed in that feeling by the
zeal with which the opposition to his motion had been urged
on the other side. Four Counsel had replied to hint—a gentleman
had been brought specially down from London to oppose him—and
lie, therefore, confessed that all these things oppressed and alarmed
him, and induced hint to think that every sort of deliberation and
every sort of caution ought to be observed in conducting the pro-
ceedings of the defendant. lie came next to the subject of the
newspapers. They had been an example id' the danger to which
the defendant was subject. The Attorneieneral had throughout
alluded to a publication imputed to Edward Wakefield only.
Now, suppose Edward Wakeheld had done any thing imprudent;
suppose he had conducted himself in a manner to deserve the no-
tice and reprobation of newspaper editots, and to draw down the
attack of Mr. Grimselitch, what had it at all to do with William
Wakefield, who was not charged with any participation in that par-
titular conduct ? But it was said that some friend of Mr. Wake-
field had put into die Sum newspaper the paragraph which had de.
tared one of the witnesses from coming. That was indeed a
strange answer to the atfidavit. Again, it was objected that they
had not mentioned in the affidavit the name of' the person who had
informed them that 31r. Bachiall's te,tiinnny was material. If his
Learned Friend wished it, or it' his Lordship thought it necessary,
that fact should be disclosed in a further affidayit.
Sir. Justice PAU—The Court will receive no further affidavit.
3lr. Sesal.ETT—lt WRS a great hardship to 31r. Wakefield to
be tried individually under a prejudice, caused by the indiscretion
of his brother, whose acts they were not then considering. Then,
again, haws said, that Macclesfield was 70 miles from Lancaxter,as
if that were any answer to the allegation that the Mosektfieb/ Con rise
had prejudiced the minds of persons who might try the canes.
Now 31acclestield wawonly 20 toiler from :Manchester, and the ma-
jority of the persons who formed the tribunals at Lancaster came
front the former lance. But it had also been said, that Sir. Deni-
son ought to have joined in the uffidavits ; that sublitenaes had been
seat to France. lie (Mr. S.) wished that they had °lily been given
to understand, beforehand, what affidavits would be required.
Mr. Denison had not sworn to the issuing of the subponae, because
Sir. Denison resided at Manchester, and the subpsenas had been
issued by his agent, who lived in Condos. But suppose the
whim:nes were blotted out altogether, he apivehended that it war
enough to swear, as in these affidavits it was done, that the wit
nesse' were material ; that they generally resided in England, ant
not in France ; and that they were expected to be here by the next
Assizes. Then Mr. lirougham had alluded to the case of the Che-
valier D'Eon, where an application to put off a trial had been re-
fused. But in that case the witnesses had all been Frenchmen, re-
siding abroad, to compel whom to attend no process cotdd be homed,
and respecting whom it had only been swop that they were ex-
pected to arrive by the following Term. But what were the circum-
stances here? The witnesses all resided in England ; their return
was expected immediately. Then, as it regarded Mr. Beane'', it
was urged that the name of the person who infant:mei 'ltem that Mr.
Badnall was a material witness was net set out in the affidavit.
Now, was it necessary to infer that a party committed perjury be-
cause lie did not state who the person was that had told him that
Mr. Badnall had important facts to disclose ? Upon the whole, he
submitted that no sufficient answer had been given to any part of
the case OR which he (Slr. Scarlett) had originally reheat, and that
the grounds which he had 'submitted for putting off the triahstood
unitimeached. After all the zsal which had been displayed on the
other side, none of the four Counsel had suggested a single argu-
ment to show that any injustice would :trifle to any party
by deferring the trial of the defendant until the next Assizes.
The Attorney-General had said, that it was, in his opinion,
of consequence that the trial should now be urged on. To
this it was sufficient to answer, that, in the opinion of the Counsel
for the defendant, it was of such importance to postpone the trial,
that it was a matter of doubt with them whether they would appear
at all, if the defendant were now urged on to his trial. If, indeed,
anything had been advanced to show how the ends of justice would
be served by hurrying on the prosecution (when the same expense
and trouble must necessarily be incurred another time), be should
be glad to meet the argument. Nothing of that kind, however,
had been advanced ; no affidavit had been offered suggesting such
fact ; and he trusied, therefore, that lute Lordship would see the
propriety of postponing the trial.
Mr. Justice PAILK-11 I were to consult my own convenience,
my own consolation, or my own comfort, I should agree with the
Learned Attorney-General for the Palatinate, that I ought to
listen to this application with the greatest readiness ; but the
queutios for my consideration is not whether or not I shall sit
here, perhaps for several days next week ; I sit here, bound by a
sudenul oath to discharge a solemn duty. The conclusion to which
I have come may be tight, or may be wrong, but if I do err, 1
am ;abated that I err not in intention. I know nothing of the
pardes in this case, except what appears from the depositions._
am sorry to say that in a few days I shall know too much of
them. The application to postpone this fnal untie upon two
grounds. The first is founded upon the di:tete:ion of the• Judge,
atud the vecend is ones the Law. It, as the Attorney-(leneral
for the Palatinate sse.ns to think the legs; ;;;mend urged for the
pustpuneuteet is good in pots: al lass there is an end to it. I cans
gut agree with the Leutned :ittolinssae: social for the Vala.i•
nate, that It is a matter of evs:)-day et. taaiiisa to grant an ap-
niieasioa of this kind. I ask it; llirtia to 1001.1, bwon:

as the affidavit of Mr. el'idiem Wakefield, I could postpone en
action for goods sold and delivered ? I have never, in my expe-
rience, seen an uffidavit so loosely sworn respecting the absence of
material witnesses. I shall address myself to this point. I is
not an unimportant consideration, that this Gentleman his never
been in custody for any tiling more than a misilemestnottr ; and if,
as it has been stated, that the Judges of the Court of King'.
Bench doubted, upon the return made to their writ of certiorari,
whether the offence was a felony or misdemeanour, I must say,
notwithstanding the regard and reverence which I eh•ertain
towards the four very able and Learned Judges of that Court, that
• man charged with such an offence had better be tried anywhere
else than in that Court. I say this, ;eh has been as stated, that teat
Court entertained any doubt upon the pint, because, thmughout
the whele committal, it is word for word with the statute of Philip
and elery, and upon that committal alone the Court of King's
Bench had a right to decide. The writ was issued on the 13th of
February, and the defendant was brought tip in Easter Term,
and bailed acceordingly. The consequence is, that hff bad two
Whole Terms to collect his witnesses, and if Mrs. Hurst Sit-
*tie Alias Hoare- and :dr. Italy, are important and mateiial wit-
nesses, why not have made application to them before the 3J of
August? Supposing it to be the fact as stated, that the town agent
of the defendant's attorney had written letters to those persons, and
had served them with sublimes on that day, it was not pfitbable
that they could be here in time to give evidence, if the trial had
taken Place in the early part of the Assizes, but if the eubpanas
had been served at the time stated, it is probable that the wit.
nesees Might yet arrive in time to give evidence. With respect
to Mr. Raffinate I never saw such a statement; and, if that
statement be admitted to be sufficient to postpone the trial, there
la, I Will venture to say, not • etiminal who comes to that bar
who :could not urge groutuls for postponing his trial. Jlr.
Wakefield says, that since his arrival here he has been informed
that .Me. liadinell can give material evidence for his defence.
Does not elr. Wakefield himsed know who can give material
evidence fur him? Ile must know it, It is impossible that he
can be ignorant edit. Mr. IVakefield says he has been informed
to that effect ; but lie does nut state to the Court by whom he
Imo been so informed, nor in what way, whether by letter or
otherwise. Another emend tirged is, that Mr. Dominick Dotty
has, in a letter to some person, StEl!ttl th.ie, in consequence of
a parasmph which he had read in a newspaper, stating that
this trial would be postponed, he (11r. Dominick Daly) did not
intend to come to England to give evidence upon this vial.
This is trifling with the administration of the justice of the
reentry. If the paragraphs in the newspapers are to be lis-
tened to, the whole justice of the country is at once paralyted.
At Appleby, I myself read, to my avonethment, a paragraph in
a newspaper stating that this ease was appointed to be tried on
' Thursday last. I had never befine heard it. No application
had ever been made to me upon the subject, nor had any appoint.
anent been otade by me to try the Cease on any particular day.—
Cos I then, upon such ground., postpone the trial ? The next
= urged upon me is, the propriety of having this case con.by the Court of King's Bench instead of by a single Judge. I ask what benefit could the defendant derive front
' baying a Certiorari granted ? I have no overweening confidence
IN my abilities as a Judge, and I should wish, if I were to con.
salt my own personal convenience, mostly that the case should
M removed, but I confess that I cannot see any great empire.
ity or difficulty in the terms of the Act of Parliament upon
ich this indictment is fruited. I have read dust Act of Paella-
meet very minutely, and I have charged the Jury upon it. If
thereeee were removed by Certiorari into the Court of King's
Bendii it must be sent down here to be tried by a single Judge,
who must decide upon the evidence, subject to the revision of the
Court of King's Bench in case any evidence should be improper-
ly admitted. I speak with due respect of the four eminent and
Lamed Persons who preside in the Court of King's Bench, but
1 must say, that I have more respect for the opinion of the
Twelve Judges of England titan tie the opinion of that Court,
and In every case tried in this Court the defendant has the oppor-
tunity of' taking the opinion of the Twelve Judges. Belem a
better tribunal no person can come. I must say, that which cannot be
contradicted, that if in any case tried in this Court any Learned
Connorl would say, that in his opinion any evidence had been
Ispeoperly admitted, or that the law had been improperly ex-
pounded, although those points reserved in Courts of this kind
am decided in content, and the greatest pairs taken to investigate,
yet If it should be the wish of any Counsel to have the point
reserved argued before the Twelve Judges, permeation is given
without in tufty. This, theretore, being the cave, every possi-
ble advantage which can be derived from having the case subject
to the revision of the Court of King's Bench is• derived in a
superior degree front having it tried in this Court. because any
Clung wrong which might occur in this Court would be set right
by the Twelve Judges. The next ground tweed is, that this case
ought to be tried by a Special Jury. Whether or not the case
is a tit one to be tried by a Spacial Jury I shall not now atop to
inquire ; but if an application is made to me for a Special Jury
I shall then consider it. I have, as well as the Attorney-Gene-
MI for the Palatinate and Mr. Williams. long had the honour of
being acquainted with the Juries who attend at this place, and
I must say, and I say it without any disparagement to the gentry
of this county, that during a long experience I never saw in this
county any Special Jury half so good as a Common Jury. I
know that gentlemen who attend here on Common Juries are
mti eoneiderable property in the most populous parte or this
; but, supposing for a moment Met the persons compering
ili7 omen Jury to be of the inferior rank ( which I don't at al
admit), I don't think, looking at the indicentent, that the de-
fendants would be worse dealt by at the hands of such a Jury.
than he would be at the hands of those who generally attend
upon Special Juries. Looking at the most prominent ground of
this application (there is an old saying, that a man puts his best
leg foremost), namely, the paragraphs in the newspapers, about
which not less than two pages of the affidavit are filled, I must say
that they aflbrd no ground for this application. The most serious
ease of this description that has ever come under my notice was that
of Thurtell, who was executed at Ilertferd For mender. An epee-
cation was then made to me to put off that trial, on the ground of
the incessant paragraphs which had appeared in the newspapers
respecting his case. I then thought, as I think now, that there
were no sufficient grounds for postponing the trial ; but if the
Learned Attorney-General for the Palatinate is willing to spend
' a part of the month of September or of October here, I ant
will-
tag to do now, what I did upon that occasion ; and I will, if he
chooses. postpone: this trial for a month, in order to live time
to the Jury to wean their minds of any prejudices (which I don't
believe exist) that may have been excited against the defendant.
The case of Thurtell was a case of murder, which must have
inevitably ended in the death of the prisoner; and I theretore, from
a feeling of humanity, notwithstanding the inconvenience to my.
self, said, that as that was the first county of the Circuit, I was
willing to come back and try him after I had finished my other la-
bours on the Circuit; and I trusted the prosecutor would not then
force on the trial. What is the paragraph complained of ?
The Atturney-General for the Palatinate has very properly
abstained from reading it with the affidavit, but I have
read it, and I must say that it is an answer to another article
(for publishing which I shan't now say whether or not the printer
may not be liable in an action of libel), which has been brought
home to Edmund Gibbon Wakefield, and the clerk of another per.
son who is connected with the defendant. With respect to the ob-
jtetion which has been urged against trying one defendant without
trying both, I shall only say that the legality of such a course has
been recognised in the case of the King v..laniee Stamp Sutton
Cooke. Upon neither the ground of discretion nor of law do 1
think thie trial ought to be pow poned.
An application was made by the Attorney-General to have a day
appointed ter the trial, but Me Justice Park woald not appoint any
day. He said, if the trials of the rioters should be concluded at an
early hour toenorrow, he would commence to-morrow afternoon,
- 1 but it' not then, not until after Friday.
rims •sseestee

WkSTERN CIRCUIT.

Bnisrnr., At 19.
[Before Mr. Justice I.crir.EDALE and a Special J ury.l
COLLINS V. T.VLIELL AND 07IIEGS, ASSIGNEES.

This was an action of trover, brought to recover the value of 100
bushels of wheat, taken possession of by the defendants as the
assignees of.lohn Lewis, a bankrupt. The facts of the use were
simple, but it involved a question of considerable importance to
commercial men.

............-.... .......
Mr. Sergeant W I FDE (with whom was Mr. Pallmer) stated the
case. The demand of his client was very small, but it involved a
principle of great imporanee to those who purchased corn from
warehouses. In October. 1824, 31r. W. Davis, a respectable mer-
chant in this city, lied a large quantity of corn in the warehouse of
Mr. Lewis. Ile then authorized a broker, named Norman, to
make sale of a part of this warehoused corn, and upon this au-
thority Norman sold 200 bushels to the plaintiff. Shortly after,
11)0 bushels were delivered to Collins, but before he applied for the
remaining lOU bushels, Lewis had become a bankrupt, and the
defendants, as his assignees, took possession of the plaintiff's
wheat, and refused to let him have it. Ile understood that the
defendants relied upon an Act passed in the reign of James I. It
was a hardship under any case, that a man should not be able to
get possession of goods for which he had paid ; but for the protec-
tion of commercial men a law hat! passed, that when a trader be-
came bankrupt, his assignees should remain in possession of any
goods of which he was the reputed owner. At that time, when
commercial transactions were much more simple than at present, it
was thought that a commercial man's credit depended on the quan-
tity of goods he appeared to have in his 11o:session ; and there-
fore it was conceived, that when he unfortunately became bankrupt,
the goods of which he was the reputed owner should conic to his
creditors as well as those In which lie possessed an actual owner-
ship. The law was still in force, though she chancier of commer-
cial transactions was greatly altered. Merchants were now trusted
on mein general responsibility. Trade was carried on by means of
symbols ; and instead of goods, orders and transfers were given, so
that a merchant's credit depended sin his previously paying his
bills, and not in any great degree on the quantity of goods of which
he was the reputed owner. In the present case, 200 bushels of
wheat having been bought by plaintiff, and paid fur to Norman
the broker, he acting as agent between Davis, the owner, and Col.
line the purchaser, wen: to the bankrupt's warehouse, and got 100
bushels, the remaining 100 bushels being refused to hint. Ad-
vetting to the principles laid down in cases of this nature, it was
material to consider whether the possession had passed into the
hands of the plaintiff, and out of the hand,' of the bankrupt. In
this view it was to be observed, that the wheat purchased by the
plaintiff was a part of a large parcl, and that a option of the
purchase was actually received by the pl;:intlif: There was a iv,
lect delivery ofthe goods sold by Davis, as far as depended on
him. It was obvious that the bankroll kept a public warehouse
1 far the reception of goods, anti it would put an end to ad taus.
tiet:ons of this kind, if property sa ph;ceti should be IL'ols. t.)