The Sun.
London, England, 1836-06-07 00:00:00

NORTON V. MELBOURNE.

The ATTORNEY-GENERAL, said—ln this case of " Norton v.
Viscount Melbourne," my friend Mr. Bayley obtained a rule
to show cause why a Commission should not issue to examine
a witness, on the part of the plaintiff, of the name of William
Mansell, and that his deposition, when taken, may be used in
evidence at the trial. Any opposition which I may offer to
the rule, would be merely with a view that the trial may not
be postponed, and, if possible, that all the witnesses may be
examined viva voce before your Lordship and the Jury. I
will by no means enter into the merits of the case on this pre-
liminary motion ; but I hope I am not departing from my
line of duty, when I say that I am very anxious that the trial
should take place as speedily as possible, and that the witnesses
may be openly examined. The application made by my Learned
Friend is founded upon the 4th section of the statute of the Ist
of Will. IV., chap. 52, whereby it is enacted " that it shall be
lawful for each of the Courts of Westminster to order wit-
nesses to be examined upon interrogatories, and to order (this
is that latter part of the section) a Commission to issue for
the examination of witnesses out of the jurisdiction of the
Court." The section subsequently ordered the Court to give
directions touching the time, place, and manner of the exami-
nation, and all other- matters and circumstances connected with
the trial as should be required for the purposes of justice.
The only section of the act to which it is material to draw the
attention of the Court is the 10th, by which it is ordered "that
no examination or deposition shall be read in evidence upon any
trial without the consent of the party against whom the same
shall be offered, unless it shall appear that the witness is out
of the jurisdiction, or dead, or unable from illness to attend at
the time, in all which cases the examination or deposition,
certified under the hand of the Commissioner, shall and may,
without proof of the signature, be received and taken in
evidence, &c." The Court has by the 4th section a dis-
cretionary power to grant an issue, and to give such directions
as shall appear to them just and reasonable. By the 10th
section, if a Commission is granted and the witness examined
under that Commission, his deposition must be received if he
is out of the jurisdiction of the Court. I will now read the
affidavit on which this application is made. It is the affidavit
of the plaintiff's attorney, and it states that William Mansell
is a material witness, tied that the plaintiff cannot safely pro-
ceed to trial without his testimony. It goes on to state that
Mansell resides with Earl Mulgrave in Ireland, out of the
jurisdiction of this Court ; and that he (the deponent) believes
that he will not be within the jurisdiction of the Court before
or on the trial of the cause, which will probably take place
on or about the lBth June inst. What I suggest is, that upon
such an application in such a case this affidavit is not sufficient.
Your Lordships are aware, though it does nut appear upon the
affidavit, that this is an action for criminal conversation, it is in
the nature of a criminal charge. Your Lordships are aware
also that the 43d statute of the reign of George 111., is an Act
passed to allow witnesses in all criminal cases, in whatever
parts of the United Kingdom, to be subpoenaed to attend as
witnesses in any part of the United Kingdom, thereby show-
ing the anxiety of the Legislature, that in all criminal cases
witnesses should attend in their proper persons to be examined
and cross-examined. That statute does not apply to civil
causes. Then conies the Act of William I V., c. 22, which
gives, by the 4th section, a discretionary power to issue a
commission to examine witnesses not residing within the ju-
risdiction ; and what I suggest is, that in this case the affidavit
must show that every endeavour had been made to procure the
personal attendance of the witness. In this case the witness
only resides in Dublin ; he may be here, as he is
in the service of Earl Mulgrave, and the affidavit dots
not state whether they have attempted to serve hint
with a subpoena, or whether any exertions have been made
to procure his attendance on the trial. It is reasonable to sup.
pose that if application were made to the witness, or to
Lord Arlulgrave, that without difficulty for the purposes of
the ends of justice, his attendance might he procured. No-
thing was said upon this subject—it is not stated that he
will not attend—it is not stated that he has made any re-
fusal, or that any application has been made either to him
or to his master. I neither mean nor insinuate the slightest
intentional misconduct in the manner in which this case has
been conducted. But still it is a dangerous precedent in an
action of this sort that the plaintiff's attorney should come with
his affidavit that he cannot safely proceed to trial without exa-
, tnining a particular witness, and merely stating that this wit-
ness lives in Dublin in the service of a Nobleman there
—they have merely to show that they require to do so
and so, and upon this a Commission is to be issued,
and certain directions are to be given as appear to be
just and reasonable. In the exercise of the discretion which
the Act gives, I have to submit that, under the circumstances,
and in all such cases, the affidavit of the Attorney must show
that he has done everything in his power to procure the per-
sonal attendance, and that it is only in default of his being
able to do this, that the Court would allow a commission to
issue, to examine upon interrogatories and to take depositions.
I need not remind your Lordships of the infinite importance
in all cases of the witnesses being submitted to the examina-
tion and cross-examination of Counsel, of the Judge, and of
the Jury, in the progress of the case. The great boast of our
trial by jury is, that it gives an opportunity of work-
ings of the witness's countenance, and thereby testing the
seeing the
a 4 d i the truth of his testimony. It is suggested in this e
ground on which they rely is, that this is a matoflel and neces-
sary witness, without whose eviticePe the plaintiff cannot safely
proceed to trial ; the more dangerous therefore will it be if
such a witness should be examined privately, and his deposi-
tions read Without the jury having an opportunity of seeing
him, and without having an opportunity of putting questions.
in
I take these objections discharge of my duty.
Judge PARKE—Hand up your rule.
The rule was accordingly handed up.
The ATTORNEY-GENERAL, proceeded---.I 'again ask whether
it is stated in this affidavit that any inconvenience can arise
from this witness being subjected to examination ? The
affidavit states that he was in Irel4o--in Dublin—at the

sed
co q
mencement of the action, and no great interval has e states?
from the commencement of the action. It is not
that he is not in London—that he is not within the jurtl 7.
rt
liction, or when he left the jurisdiction of the Court,
,erely states that the Attorney for the plaintiir believes
that the witness will not be within the jurisdiction of t
Court before or on the trial. This was all. There i 4
.no
Allegation whatever that he wi'l not attend on the try.i
This being the case, I humbly si bit whether it would be just
rei,sonable, in the exercise of tha jurisdiction of this Court
en such an affidavit to grant sue h a rule.
The LORD CHIEF JUSTICE (without seeing Mr. BayleY)
.;aid, I believe this affidavit is in the usual shape in which such
affidavits are brought before the Court ; it would therefore be
very difficult to establish one rule in an action of this sort,
which is a civil suit, different front all others. Though it aP •
ems that this action relates to crime, strictly and proper!
speaking, vet in all its circumstances it is a civil notion, anya
therefnre the us:lal course has been adopted, viz., to swear
that the party is at the time out of the jurisdiction of the
Court, and could not be examined within it. I do rit;t find.
that any restriction can be made upon the exercise of.
a jurisdiction which is necessary for the furtherance et
the ends of justice. It is clear that if the wit-
ness comes within the jurisdiction before the day 01
trial, all that shall have previously taken place will be useless.
He will be examined if he comes; but if not, it was only fair
and just that an opportunity should be afforded of taking his
deposition, :is otherwise there would be a necessity of post-
poning the trial, he being sworn to be a necessary witness.
Mr. Justice PauKt, said, that every Judge who was in the
habit of sitting in Chambers knew that such affidavits as the
one in this case were of every day occurrence. He never saw
an affidavit containing what the Attorney-General seemed to
think material. Though this case was in the nature of a
crime, morally speaking, and a very high one, it was still but
a civil action, and therefore they could not vary the usual
rule. There seemed to him to be no inconvenience in this
case, as the witness would be examined viva race if he re-
turned into the kingdom before the trial.
Mr. Justice GAZELEE was of the same opinion.
Mr. Justice VAUGHAN was also of the same opinion. The
object of the Act of Parliament was to obviate delay,
if they were unable to compel the witness to attend personallY,
it was supposed that there was no proof, nor application made
to the party. Ile thought that sufficient had been stilted to
induce the Court to make the rule absolute, as if a commi3si°l/
were not granted, what security would there be for the parol.
attendance, or what remedy if he did not appear ? The greil
object was to procure the attendance of the party ; if that COuiA.
"
not be done, there must be a commission, which the party was
entitled to upon stating that the witness was out of the juris-
diction of the Court.

Mr. BaYLEY hoped to be allowed to say, that his client !a5,
exceedingly anxious that the cause should come on, to be tried
at the earliest possible period, and that every witness she'll'
be examined viva voce. He would merely add, that the cause
had been set down to be heard for as early a day as possible.
The ATTORNEY-GENERAL—I hope there will be no delay.
Rule made absolute.