The Sun.
London, England, 1839-01-28 00:00:00

passed. It was a maxim laid down in Bleekstone, 10S, that
Was suaa a law as this not repugnant to the laws of Eagiana ?
Rom the earliest time, even in Magna Charta, it was laid
down that no man could he exiled but by the operation of the
law, arid the law required that all proceedings should he in
open Court. In this case it was alleged that the prisoner had
agreed to his own banishment, but that was a violation of one
of the greet principles of our law, for it was not only the law
of England, but it was also the law of God, that no man
could consent to his own death. The same principle would
hcid good with respect to banishment. The laws of England
required that, in order that a man in prison give a warrant of
attorney, or sign a cognovit, he must have—not only an
attorney present, but must have one of his own choosing ;
and that, in order only to dispose of a few
pounds; but where was there any thing to show that in this
case any one was present to tell the prisoner the meaning of
the Act of Parliament, the nature of the pardon he petitioned
for? It was averred that the prisoner had petitioned for a
pardon, but how did that appear. The gaoler of Liverpool
said so—he even said the prisoner had assented to the con-
ditions imposed upon him, but how did that appear—how did
the gaoler of Liverpool know anything of that? Another
objection was, that the warrant was not set forth, and he con-
tended that the return was insufficient, not only for the want
of the warrant of Sir J. Colborne, but also for the want of
that of Governor Arthur, and therefore ought to be quashed.
Mr. FALCONER followed on the same side, and contended
that, by the 31st Geo. 111., chap. 31, the Criminal Law of
England was introduced into Upper Canada; but by that same
law of the Imperial Parliament, the laws were to have no
force out of Upper Canada. According to the Common Law
of England, no man could be sent out of the country without
having been convicted. The parties before the Court had not
been convicted, and were now in England under a law which
was of no avail or force out of Upper Canada. He contended
that the return was defective, in consequence of it not setting
out the warrant of Sir John Colborne.

Mr. RoEunex followed on the same side, and was address-
ing the Court when we went to Press.

COMMON PLEAS.--(THIS DAY.)

ROTE V. BUSH.

SINGULAR AND IMPORTANT CASE._This was an action
tried before Mr. Justice Coltman, at London, and a verdict
was found for the plaintiff, damages 301. It was an action for
false imprisonment brought against the defendant, a constable,
for taking the plaintiff into custody on a warrant, in which his
name was erroneously given.
Mr. Sergeant BOMPAS now moved for a rule to show cause
why that verdict should not be set aside, and a new trial
granted. It was not doubted, he said, that the plaintiff was
the person intended to be apprehended, but unfortunately the
warrant described him as " John Hoye," whereas his name
was " Richard."

Mr. Justice VAUGHAN-Was there a person named John?
Mr. Sergeant BOMPAS—The father was named John, but
he was not meant to be arrested. He apprehended that, in
criminal proceedings,. a warrant might be issued without any
name. That was constantly done at the police offices, and
had been decided to be good. In fact there had been a cele-
brated case, in which a man bad been arrested, tried, con-
victed, and executed, without his name being mentioned.
Lord Chief Justice TYNDAL—There is an old case in the
6th Term Reports, where it is laid down that a person cannot
justify under a process in which the name of a party is mis-
taken.

Mr. Serjeant BOMPAS. —Yes : but I submit, my Lords, there
is a great difference between a civil proceeding and a criminal
warrant. In cases of felony it was seldom, if ever, from the
very necessity of the case, that the warrant issued for the ap-
prehension of a party suspected, specified his name, which was,
in fact, seldom known. If a warrant had been issued to take
up John, and Richard had been arrested, no doubt it would not
be a justification. But in this case it was not disputed that
the ri,7,lit person had been arrested; and because the name had
been mistaken was the constable to be liable to an action for
false inwrisonment ?
Mr. Justice BOSANQUET—A warrant to arrest any per-
sons for a certain offence, would be bad, as being a general
warrant.

Mr. Serjeant BOMFAS—NO doubt ; but in this case the per-
son arrested was clearly the only person meant to be specified
in the warrant ; and it was essential to the administration of
justice that constables should be protected in the discharge of
their duty, from the consequences of technical objections to
warrants. But the Learned Judge has laid it down that the war-
rant was no justification because it had been executed out of the
constable's jurisdiction, although a City constable was present
at the arrest, the warrant having been "backed" to him, (and
the arrest taking place at the City,) according to the constant
practice ; and the only way, indeed, in which warrants could
be executed in different jurisdictions.—Rule nisi granted.