The Sun.
London, England, 1822-11-09 00:00:00

SATURDAY, NOVEMBER 9,.1822•

LAW INTELLIGENCE.

COURT OF CHANCERY, Nov. 8.
THE PORTSMOUTH CAUSE.
Mr. WETHERELL resumed at ten o'clock, and concluded

Rt twelve.
Mr. SHAnWELL followed on the rt. nie side, and spoke for

two hours.
Mr. BEST spoke also on the same side until the rising of the
Court, at half-past two.

[As the same reason which induced us yesterday to withhold
the details of this very delicate case still olienites.with the same
force, we continue to suppress statements that are purely ex

parte.]

VICE-CHANCELLOR'S COURT, Nov. G.

THE.EARL UOIVE V. BERRI MAN.

•
SKIRROW, on the part of the plaintiff, moved that the
defendant, Thomas Bert:imp, might be. cOmmitted_So Lhe,Fieet.
Prison fora coutempt of Court: The Learned Counsel stated
that the defendant haring been. guilty of a contempt by'not.,
putting hi an answer to the plaintiff's bill, was in consequence
arrested by an officer of the Court. He contrived, however, to
escape from custody, anti on the frith of October, whilst he was
at-liberty, he put inhis answer, which was accepted by the plain-
tiff. He had subsequently been recaptured by the officer, and
was now in his custody.
The VICE-CHANCELLOR observed, that it was a question
whether the officer was justified as making a reception of
the defendant ; because a defendant in custody was entitled
to be discharge as soon as his answer was accepted by the.
plaintiff. He was disposed to think that the defendant must
be discharged, because the Court would consider him to have
been in custody. In order to determine the question of costs,
he would" request an. officer of the Court to inquire whether
a similar case to the present had ever before occurred, and to
state what conduct the Court pursued upon such. an occasion.
In the mean time the defendant must remain in custody. Ho
• would not hand the defendant over to the Fleet, but at the same
time he could not discharge him from custody until a motion
should be made for that purpose. This, he advised the defend-
ant's counsel to make, upon giving notice to the plaintiff... The
officer hadheen put to considerable expence by the re-caption,
which would not have happened,.. if the plaintiff had stated, as
he ought to have done, that the defendant was entitled to his
discharge upon his answer having .been accepted.
Mr. LATHAM, Counsel fur the defendant, applied for the
costs of the application.
The VICE-CTIANCELLOR said he wolddrollsider the ques-
tion. He did not, however, feel disposed to give ..costs to --the
defendant, who had committed so gross a contempt of Court.

COURT OF KING'S BENCH, FRIDAY, Nov. a.
THE KIN() V. THE REV'. W. J. JDLLIFFE.

Mr. Serjeant PELL applied for a rule to show cause, why
there 'should not be a new trial in this 'case, which was a quo
warranto information, calling upon the deferplant, who is the
Mayor'of Petersfield, to show by what authority he clainis that
.office, the verdict having been for the defendant, or if the Court
should think that there ought not to be a new trial, then that
judgment might be' entered for the Crown, non &Wank vere-
dicto, or that the facts proved at the trial might be formed into
a special verdict.
Lord Chief Justice ABBOTT.—We cannot, I believe,
direct a special verdict.
Mr. Serjeant PELL.—The Learned Judge, before whom the
case was tried, thought it was a case of that nature that it
ought to be reduced into a special verdict, if either party wished
it, that they might carry it further.
Mr. Justice BaNi,EY.—lf that was agreed to, you may have
your special verdict under that agreement.
Mr. Serjeant PELL—Yes, my Lord —.Then the principal
questions for your Lordship's consideration will be—a new
trial—or judgment for the Crown, notwithstanding the verdict.
The princil issue in this case related to the mode of consti-
tuting the beet Jury. The form of the issue was, that the
Jury were nominated by the Steward instead of the Bailiff,
with a rejoinder that, from time immemorial the Steward has
been-used to nominate, and upon that, issue was taken. The
finding of the Jury was, that he had. The evidence consisted
in substance , in this : that during the last twenty years, the
Steward of the Lord of the Manor, Mr. Joliffe, had been in
the habit of issuing a precept to the Bailiff of the Borough,
directing him to warn all the inhabitants to attend the Court
Leet, and of adding at the foot of that summons, the names of
such persons as he, the Steward, thought fit to appoint
on the Jury. Now, my Lord, in the-course of the evi-
dence on the part of the defendant, there was not a single
witness who spoke to any thing prior to the last twenty
years, nor was there a single document, not a present-
ment, or a single rap of paper,. antecedent to that period,
The Steward was in Court, but the defendant did not call him
as a witness, nor did he call a single witness to speak even to
the reputation in the place as to this supposed custom, lout the
case rested altogether upon instance!: of the usage of the Steward
within the last 20 years. I contended that such evidence was
not sufficient to warrant the Jury in presuming the immemo-
rial existence of this practise, and that it required no proof
from me in answer to it;—that it was wholly insufficient to
support. the custom. It was stated by the Learned Judge who
tried the cause, tifat slight proof unanswered amounts to cogent
proof. Admitting the force of that proposition in many cases,
I denied it, or took the liberty of, denying it, in the case then
trying, as it appeared to me to involve almost a contradiction,
or at least an absurdity in it; for that principle, when carried
to the utmost extent, would go . the length of saying that one
single instance of usage, even in the year antecedent to that in
which the point was tried, would, if it was unanswered, be
evidence of a custom. I -thought in a case of this kind, the
Steward being in Court, and there being documents, as we
must suppose there were, that something beyond the slight
evidence, which the defendant thought proper to lay before
the Court, should have been adduced, but for some reason or
other he chose to content himself with it. My Lords,
I - apprehend that this was not sufficient to authorise such
a direction. as there was to the Jury ; and it was upon that
direction that they found their verdict. It was distinctly
stated by the Learned Judge, ".1 recommend you to hnd this
verdict, because there being such evidence as this,: and this not
being answered, it must be taken as full proof of the fact ;" but
it appeared to me that the nature of the custom is such, it is so
,unreasonable andso monstrous, that it would require something
more than one or two instances to make it out. Therefore, the first
point is, that there was not evidence sufficient to support the cus-
tom set out upon the record. Then comes the legal question, which
is this, whether there can be such a custom ? That is a ques-
tion upon which the opinion of your Lordships would be taken
with reference to the other form in which I make this motion—
that judgment should be entered for the Crown, notwithstand-
ing the verdict for the defendant. It appears to me a monstrous
proposition to contend, that in a place like this one individual,
the Lord of the Manor, possessing considerable property, as it
was - stated on the trial that he does, should through the me-
dium of his Steward have the power of nominating those very
persons.
Mr. JuStice BAYLEY.—Who should do it ?
Mr. Serjeant PELL.,L-The
' Mr. Justice BAYLEY.—The Bailiff is a man of less relon-
sibility, because if the Steward is guilty of mal-practices—if he
corruptly and partially nominates a Jury, he is liable to a
criminal information.
Mr. Serjeant PELL.—Undoubtedly he is ; but the way in
which it struck me on the trial, .and.the way in which it strikes
me now is this—that the Bailiff is the proper authority, through
whose medium the Jury ought to be returned; that independ-
ently of any custom or usage, the 13ailiff would be the person,
uninfluenced by any party, to make that return.
Mr. Justice BAYLEY.—IS it generally so? In the case of a
county, the Sheriff nominates the Grand Jury,—he issues his
precept to the Bailiff directing him to summon such and such
persons upon the Grand Jury.
Mr. Serjeant PELL.—Yes, my Lord, but the Sheriff is not
the Judge of the Court in which the Grand
The Jury serve. The
.Steward is the Judge of the Court Led. point, I appre-
hend, is of such a description Isdeserves consideration—whether
such a custom can legally exist. This election is an election
of a peculiar description, and it must be viewed with reference
to the supposed right to be derived under it, and that right