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

is, the right of nominating and appointing a Returning Of-
ficer.
Lord Justice ABBOTT.—The election of a Mayor. There
was a Leet Jury in former times. • When called together; they
are called together to discharge all the functions of a LeetJury, •
whether by.law or custom whatever they maybe.
Mr. Justice Bayt.Ey.—Had you an inspection of all the
Court Rolls and Documents before the trial ?
Serjeant PELL.—No, my Lord. •
Lord Chief-Justice ABBOTT.—The Court-roll will not shew
you how the Jury were got together.
Mr. Serjeant Ptu..—There seemed to be' in Court a very
great magazine of documents of some kind or other.
Lord Chief-Justice ABBOTT.—AII of which you might have
had an inspection of.
Mr. Justice BAYLEY.—Mightopot you have applied for that
before the trial ?
Mr. Serjeant PE I. r...—Undoubtedly, my Lord ' • but the point,
as it strikes me, is this—is that a principle to be brought into
action generally which was brought into, action on this occa-
sion ; that slight evidence unanswered, is such cogent proof, as
that the Learned Judge would feel hirnself.authorised to say to
the Jury—Upon that species of evidence unanswered, you ought
to find such a verdict. . -
Lord Chief—Tustice ABBOTT.—"Ought"—you said before
he recommended'them r.The alteration of a word makes_ a great
difference. .
Mr. Scrjeant PEr.L.—" I recommend you." It appears to
be a very strong propoiition. What is it the parties, are con-
testing !—a custom—of which there mast be much better evi.
deuce beyond all gue§tion,•if ever such a custom existed. I am
told .that the words were still stronger than that " I am of opi-
nion you ought to find." It disarms one of addressing argu-
ments, because juries will always pay attention to the direc-
tions of the Judge, particularly in a case of this description,
which is a mixed case of law and fact. Evidence of this singu-.
lar description, if_pushed to the utmost extremity—
. Lord Chief Justice ABBOTT.—You may push it to 'the ut-
, most extremity on the other side, and say, if tiventy years will
not do, wily will forty ?
Mr. Serjeant PELL.,--But supposing there is only one in-
stance, and that, the antecedent year.—Common sense revolts
at it.
Lord Chief Justice ABBOTT.—We must not take extremes
on.either side.' •

Serjeent PEtt.—ln a possessory action twenty years
would have done very well; but the Rule is very did'erent in a
case of custom. No old person was called to speak to the cus-
tom which is the first thing- one expects.
Mr. Justice BAYLEY.—[lave you looktd.into Greenwood
on Courts beet as to who in general nominates the Jury ? '
Mr. Serjeant PELL.—The Bailiff generally.
Mr. Justice BAILEY.--He summons ; but who nominates.?

Mr. Serjeant PE L L.---YThat.does not appear.-
Mr. Justice BAYLEy.—You would see whether it was part
of the language_ of the precept. If it be his duty to nominate,
it would be part of the precept
Mr.GASELEC,---It is part of the precept. • Your Lordships
had a great many authorities frOm Mr. Warren when this quo
warrant° was moved fbr : There is the Ring v. Bingham,
where a rule was granted. In that case, the Office of the bailiff .
of a Court-leet was thought a fit subject for a quo ecarranto in-
forniation, because he was a prescriptive officer, and authorised
to nominate and select the Jury.
31r. Justice BEST.—In many places there are bailiffs who
nominate Juries.
- Mr. Serjeant PELT.--I will not undertake to say how that
is : I rest upon eneral authority and principle- Here
is—
Lord Chief Justice A nnoTT.—The effect of the evidence
will always be considered. As to the queStion, Whether it is
the Bailiff or the Steward, prima facie, -spars to be a matter
of indifference, and you have now the fact that for twenty years
the Steward has done it.
• Mr. Serjeant PELL.—In this place, it is a question of very
great importance. ••
Mr, Justice BAY LEY.—If the Steward is the Judge of the
• Court, that may be a reason why ue should not be the. person
to nominate the Jury.
Mr. Serjeant PE LL.—At this Court there is little or nothing
done but this election.
Lord Chief Justice ABBOTT.—tot now, but a Court Loot
once did, and still may ilo, a great deal more.
Mr. Serjeant •YELL.—And therefore„ I thought the case
opened a fair mode of proof, for that there must have been re-
cords over and over again to show the authority of the person
who presided at this Court Lect, but nothing I.y.it modern in.
stances were produced.
Lord Chief Justice ApnoTT.-.:-Well, take the rule both
ways. I think they had better come on together—that will give
an opportunity of seeing the pleadings, anl discussing the prin.
cipal question. The pleadings may have, some weight as to the
sufficiency of the evidence.—Rules granted accordingly.

HOFFMAN V. HEYMAN.
Mr. 3IARRYAT moved for a rule to show cause why the ver-
dictior the plaintiff should not be set aside, and a new trial
granted. This was an action on a contract for the sale by the
plaintiffs to the defendant of 641 hogsheads of tobacco, the
cargo of the ship Ulysses, under the foliowing terms :—" Bought
of Messrs. Hoffman, the cargo of the ship Ulysses, 641 hogs-
heads of tobacco, bound fgr Bremen, payable one-fifth on the
sth of October next, and for the rest the sellers are to look to
their correspondents, tl :.ssrs. Delius, to whom the cargo is
consigned ; interest at two and three months from final de-
livery ; the buyeirs to have the benefit of the seller's policies."
The whole price of the tobacco was something more than
13,0001. ; one-fifth of which, :1,7001., was paid according.to the
contract. The whole of the tobacco arrived in due course at
13remen, but, in consequence of a fall in the price of the coin-
Modity, a loss of two-fifths arose on the stipulated sum. The
plabstiffs had received from Messrs. Delius all the proceeds of
the cargo, in addition to the 3,7001. paid down ; but they
broughtfleir action torecover the balance e, the price and inte-
rest, amounting to somewhat more than 4,3001., which the Jury
gave them by their verdict. Now lie (Mr. Marryat) contended,
that the true import of the contract was this—that the buyers were
to pay one fifth for the chance of profit on the goods, and were
not to be answerable -:,for any further loss, that Messrs. Hoff-
man were to look to tbe funds in the hands of Messrs. Delius,
and to those alone, for further satisfaction of their claim ; and
• if these sunk below the remaining four.fifths, they must bear
the intermediate loss. lie submitted that the proviso respect.
ing payment of interest and the benefit of the policies could
not, if fairly considered, alter the meaning of the bargain.
The Co tun, said they must require very strong and'clear
language to induce them to believe that it was the intention of
parties to a contract of sale that the buyer should have all the
chance of gain without any risk of loss. Here the reference to
Messrs. Delius Was evidently designed to do no more than to
secure the seller from a demand of the residue of the price be-
fore the cargo should be turned into money. As this was their
decided opinion, they refused the rule.