The Sun.
London, England, 1840-01-27 00:00:00

THE PRIVILEGE QUESTION.

The following protest is being handed about in West-
minster Hall :-....

" PROTEST OF THE ENGLISH BAR.

" The undersigned members of the English bar consi-
der it to be their bounden duty to express their abhorreinca
of the course the House of Commons has a lopted in its
Attempts to set up a boundless and irresponsible authoi'ity
in opposition to law. It is true that the courts of law
have too frequently succumbed to the claims of privil( tge
asserted by the House of Commons, and, in earlier tim es,
perhaps, the Courts were right in lending their assistance
to that assembly against the usurpations of the Crown on
the one hand, and the clamour of Burdett mobs on the
other ; but in the present day it has been reserved for the
courage of a Denman to curb the encroachments of a d'e-
rnocratic body, and by acting on the universally received
maxim, boni est judicis ampliare jurisdictionem,' to pre-
serve all the portions of our revered constitution withint
their due limits. What nobler function than this can
be discharged by man, and in whom can it be more safely
placed, with regard to impartiality, than in the judwes
of the land? Of this Lord Chief Justice Denman is a
brilliant example. Raised to the bench, as is well know n,
by even ultra- Liberal opinions, he is the first to attack ti to
excesses of the popular portion of our constitution, and iii
no one of his decisions can the slightest trace be found of
any inclination to his farmer bias, even where the justi,
of the case might appear to warrant it. It may be safel y
esserted that, under his held aid unflinching auspices, e.
the preposterous so-called privileges of the House of Com..
mons will graivally disappear. Under what pretence, for
irietance, can the public good be consulted, in allowing a.
Member of Parliament to slander his fellow-citizens with
impunity within the walls of St. Stephens ? It may be•
said that the bar possess a similar privilege, but in this casee
it i 3 exercised in the face of the Courts of law, is never-
abused, and is confessedly enjoyed solely for the benefit of
the public.
" The undersigned, therefore, call upon their fellow- .
countrymen
,to rally round the Judge: of the land, and
to support them in their conflict with a factious and tyran•
nical majority, falsely professing to represent the people, .
and they hereby pledge themselves individually to lend_
their professional assistance to the humblest individual in.
the land, who may think fit to bring an action against the.
House of Commons."— Chronicle.

LAW INTELLIGENCE.

COURT OF CHANCERY, JAN. 25.

WARMOLD V. MACINTOSH.

This appeal, which was partly heard yesterday, wee
against a decision of the Master of the Rolls, who had re-
fused the testimony of a Mr. Price on the ground that le
was an interested witness, under the following circum-
stances :—Mr. Price was security for the defendant, Mirc-
intosh, to the amount of 1,0001.. for which sum he had: at
counter security on the estate of Macintosh. It was con-
tended by the plaintiff that Price could not be damnified etr
benefited by any evidence he might give, and was, there-
fore, a competent witness ; on the other aide it was argued
that the/tendency of Price's evidence would naturally be to
protect his own interest.
The LORD CMANCELLOR said he would read over the
Master of the Rolls' judgment before he gave a decision.

ROLLS' COURT, 'IAN. 25.
CODRINGTON V. JOHNSTON.
This was an objection to the Master's report on a matter
of account of various mortgages granted on an estate in the
island of Grenada, in the West lodges, reaching over a
term of 75 years, during which time the claims had been
several times divided among the relations of Lady Bath,
Sir i'jartin Follies, Bart., and others. This day the reply
was heard, and Lord Langdale confirmed the Master's re-
port, overruling the exceptions, with costs.
RAY AND OTHERS V. GILES—OH.ES V. RAY.
This was a bill by the executors of Edward Sedg-
wick, deceased, against ,James S. Giles, his partner, as
corr,-factors in Tower-street. The executors claimed
.2%,000/. and upwards as the amount of capital be—
longing to the deceased at the time of his death.
The bill stated a variety of circumstances connectes
with the transactions of the house of Giles, Son, an 3
Sedgwick, from the time of the partnership in 1819 up t .o
1835, the date of the death of the testator, relating '.o
many dealings in corn and accommodations in money trans-
actions, which it would be unfair to publish before th e
defendant's answer to the allegations were heard. 0 n
the executors demanding of the defendant the settlernir at
of the accounts, he denied that anything was due to A/ r.
Sedgwick, stating that that gentleman had abstracted fri ,m
the funds of the firm upwards of 300 sums of money dui ,ng
the last ten years of his partnership, which in the ti
amounted to more than the 21,000/. claimed, and that . he
had appropriated them to his own use. The further is ear-
)ing of this cause was adjourned until this day, and, will
most probably continue for several days.
Mr. Pemberton, Mr. Kindersley, Mr. Stinton,, .Mr.
Richards, and other Counsel, held briefs in this en se,
each containing five or six reams of brief paper, bo and as
books, and on which fees of 250 guineas each. wet e
I endorsed.

COURT OF EXCHEQUER, JAN. 25..:
CASE OF FROST, WILLIAMS, AND JONES.
(Continued from our Paper of Saturday.)
Sir FREDERICK PotLocK said, that the Attorney-Gmeral
had seen no reason to ask the Court to interfere about the
_ .

list of witnesses; his only difficulty had been about the Jury.
The Attorney-General could make out the list of witnesses
himself, and deliver it along with the copy of the indictment.
The point he (Sir F. Pollock) was m2king was this. The
statute expressly said they should be delivered at the
same time; his Learned Friend said that those words
meant within the same interval of time; he (Sir E P.)
said they did not. The three must be delivered together
at the same moment. It was not sufficient that the list of the
witnesses, the list of the Jury, and the copy of the indictment,
should. be delivered within ten days before the arraignment,
but they must be delivered simui et sensel. The rule obtained
on that occasion expressly said, in order that such list migi,t
be delivered to the prisoner at the same time that the o
cop,
to of
the indictment is delivered. That could not be done vriai. tout
difficulty ; but the Court, to obviate this, interpoe
s d
and made a\rule upon the Sheriff, calling uponi- him
to return the lists of the Jury prematurely.. If
the argument of his Learned Friend, the Attorney.G, meral,
were right, there was no occasion for any rule at all ; I put, in
order to comply with the statute, it was held necessary to call
upon the sheriff to make a return of the persons to serve on the
jury prematurely, in order that the list might be delivered at
the same time with the copy of the indictment. There, could
be no difficulty of the same nature about the list of with eases;
but his Learned Friend contended that the law on this point
was altered by Peel's Act. Now the provisions of tit at Act
were confined exclusively to Jurors, and, in order to sin Air that
the words " same time" could not mean same interval of time,
he would call their Lordships' attention to the latter par t of the
clause to which he had referred, which showed plainly tchat the
words " same time" meant not the same interval of thane, but at
the same moment. A copy of the indictment must, ti ierefore,
be delivered at the same time with those two lists.
Baron Ar.roxasos observed, the Act of Parliament did not
affect the Queen's Bench. _

Sir FREDERICK POLLOCK resumed—Just so, and it ;appeared
to him that the reason for adopting the practice in the
Queen's bench did not lessen the force of the :1 ument.
What, he asked, was the meaning of " the same time ?" not the
same interval, but the same moment—on the same in stant—
and further, leaving the construction of this statute, ;let him
call the attention of their Lordships to one other
point in the statute of Anne itself. The provisic n was
this, that a copy of the indictment was to b e de-
livered, with a list of the jurors and witnesses ; art d that
the copy of the indictment with such list sholld be delis and to
the party accused ten days before trial, in the presence .of two
or more credible witnesses. See how that stood—if .." with
such lists" did not mean the lists were to be delivered ' sitit the
indictment, he did not see how they were bound to dell ver them
I in the presence of two or more credible witnesses ; for, exc.qpt
by the use of the word "with," two witnesses were not necessary.
Having shown the course taken when first that Act came into
operation, he begged shortly to state the uniform, unvar.'ed.
_ unbroken practice which had obtained ever since. In the trials
3N1.7 of Hardy and Horne Tooke, in the 24th vol. " Sta to
7.Tri 'p. 219, their Lordships would find it stated that e
nskrre y, Oct. 14, Mr. White, the solicitor for the Treason, r,
c
',LI vefed to the prisoners copies of the indictments, lists of 61 e
JuNis'erapanelled by the Sheriff, and of the witnesses sub ..-
_ixara by the Crown for the purpose of proving the indict -.
twere—,-and the same course of proceeding was specific:all y
bt„ted-ii, the case of C rossfield, in the 26th vol., plge 't,
whiji /I* mentioned for a moment only because the Attorne, /.. 1
ustneitpf that day, in addressing the Jury, observed (page 1 4)
. It is likewise required that at the same time when a copy of `t,

f--'

the indictment was given to him, a list of the Jurors should be
given to him, and that a list of the witnesses who are to be
produced to establish the charge shall be put into his
hand. That was the cbservation of the Attorney-General
of 1796, whom afterwards became Lord Eldon, and he there
stated, that the trial of Lord George Gordon was the first in
history in which the legislature had adopted the application of
the statute of Anne on the point, and was addressing the court,
for the legislature had not ventured to apply the act, and its
application did not revive until about twenty years ago. Now
that exposition by the Attorney General must clearly support
what he (Sir F. Pollock) was contending for, namely, that the
lists must be delivered at the same time, because the Attorney
General said, " at the same time a list of the witnesses must
be put into his hand." He (Sir F. Pollock) would merely
state the instances in which this occurred, without reading
what was doubtless familiar to their Lordships. In the case of
M'Laine, which was tried at Quebee in 1797, in the 722 d page
in the same vol. of State Trials, a simultaneous delivery oc-
curred. So also at page 798, in the case of O'Quigley ; and
he did not know whether he need trouble their Lordships to
take down the reference, or do more than give the name of
Watson, tried in the spring of 1817 ; of Brandeth, in the au-
tumn of the same year ; of Thistlewood in 1820 ; and Despard
in (he thought) 1803 ;—in every one of which cases a simul-
taneous delivery had occurred; and he could not find that
en any occasion any other practice had prevailed. His
Learned Friend, somewhat triumphantly, when he came
to answer the objection, had said that ,he (Sir Frederick
Pollock) could produce an authority to prove that delivering
the lists at a different time was bad. The reason of that was,
that no one had ever before thought that at the same time
meant at a different time, and the Statute having ordained
that the acts should be done at the same time, they had been so
done, and because on every one of those occasions it had been
understood that "at the same time" did not mean a different
time, his Learned Friend asked their Lordships to-day to de-
cide that it did mean a different time, because no Court of
Justice had ever decided to the contrary—that was the whole
of his argument ; but if he (Sir Frederick Pollock)
showed that in every case where they had the means of inquiry
the statute had been complied with, it was no answer to say,
that because the blunder had not occurred before, there was no
authority on the subject, and the court should say that the
words "at the same time" meant at a different time. He would
here say a few words more, because it was probable his Learned
Friend would enlarge on this part of the case, in protesting
that their Lordships had nothing to do whatever with the ob-
ject of this, or the utility of it to the prisoner. The
inquiry on a solemn occasion like the present was not, what
did the Legislature mean, but what had the Legislature
said—not has the prisoner substantially had the same benefit
it was supposed or suggested he should enjoy, but had he had
that which the law said he should have—by protesting that he
was not bound to show any benefit to the prisoner—but he
would point out one or two important matters in which the
prisoner might experience much inconvenience if a laxity of
practice were permitted in this case. In the first place, he
said, that if it did make, in any way, the smallest difference
whatever to the prisoner—if it produced the anxiety
for a moment—if it created the trouble of once more
pacing across his cell than he otherwise would have
done, their Lordship could not say it did not deprive
him of any possible benefit, or throw upon him the
I least possible inconvenience. No. In the first place, the deli-
very together was necessary to connect the documents. He
happened to have in his hand the very document that was
produced in Court, and presumed their Lordships would not
think him irregular for referring to it. It was headed—" A
List of the Witnesses to be produced on the Trial of John
Frost, upon an indictment found against him and other persons
for High Treason, for proving the said Indictment." There
might have been two indictments—there was no evidence on
the trial that there were not two, it was not then proved that
Mr. Frost could rest have made any mistake; it was not for li
Mr. Frost to prove it, but it was for the Crown to prove that
no mistake was made. Indictments against him there certainly
were for ether offences, and he would ask how it was possible
for Mr. Frost, when he received his list, to know that he must
connect it with an indictment received five days before? How
i could the prisoner tell but that as they had omitted the list of
witnesses when they delivered the copy of the indictment, at
the last indictment they had omitted this copy of
the indictment and the list of witnesses ? How was
h e to connect the delivery of the 17th with the
de Livery of the 12th, and know that they made
the complete and perfect delivery within the same time, but
not at the same time? He would not deviate further from that.
The great experience of their Lordships—so much superior to
his own—would immediately suggest to them its great im-
portance, and when he came to the question of the Scotch au-
thority, for the very reason pointed out, the practice prevailed
tnere ; but this be should introduce at the proper place. And
this was not the only matter. If the list of witnesses might be
delivered on a different day, so might the list of the Jurors,
because nothing was more stringent even in Sir R. Peel's Act.
Indeed rather less so, because that admitted an ex..
planation a little more lax, or rather not quite so
strict. Were they to take it, then, that all this was
(lone at the same time, when the indictment might be deli-
vered on the 12th, the list of witnesses on the 17th, and the
list of Jurors five days after; and that if a party under two in-
dictments might have delivered in any order the list of wit-
nesses, then the copy of the indictment, and then the list of
witnesses relating to the other matter, and so on, and so nottionly
prevent the prisoner from being able to connect them together,
but giving him the trouble of frequently communicating with his
attorney, and sending to his advisers to call upon him, and this
incurring expense ; for in this matter it was impossible entirely
t,, so exclude the question of expense, although undoubtedly, in a
;1 matter so grave and affecting the prisoners in such a manner,
it might seem rather beneath the dignity of the occasion to
(
.speak of it ; and if additional expense was thereby incurred, it
is as not right to forget that it was occasioned by a lax construe-
tic''r that would be prejudicial to him.
?fr. Baron ALDERSON—Can the Act of Parliament be con-
strued with more or less convenience for a party?
Sir F. Poei.oeic—No, my Lord ; I protest against it.
Mr. Baron ALDERSON—Is not the rule of construction that
you are to take the literal grammatical meaning, unless it leads
• to an absurdity ?
Sir F. Poeeoce had cases to refer to, in which lie would
s call their attention to that point more particularly, and also in
I 'is reply to the Attorney-General's case, when he trusted that
k e should occupy their Lordships' attention for a few minutes.
I le stated that, not because he thought himself bound to use
at Lett an argument, but that he might give his Learned Friend
tl e Attorney-General every benefit of answering his (Sir F.
P ollock's) objection, and he (Sir F. Pollock) had had the
la nefit of hearing the answer, such as it was. There was, how-
es 'er, another objection. He would at present merely ...lance at
it.. He (Sir F. Pollock) said that they had no right, with
" sregarsl to the construction of statutes, to snatch from an indi-
NOual one advantage and profess to give him another. It
-was of the utmost importance, when a prisoner received a copy
'of the indictment, that it should tell him who were the wit.
:•nesses to appear against him. For from that alone could the
prisoner get information of the crime imputed to him, and he
.(• Sir F. Pollock) said that they had no right on the 12th of
:December to deliver a copy of the indictment, leaving the
as isoner two days in gaol, uncertain as to the case intended to
Le made against him. They were bound to give the witnesses
at the same time, that the prisoner might see what the charge
as 5, and what it related to. He (the prisoner) was in an
2412 iety of doubt and uncertainty at not knowing what part
.or 1 as conduct the indictment levelled at. He was entitled by law
to I lave the list of witnesses. From that he might haveobtained
-th e benefit of knowing the transaction to which the matter re-
la: :e d—he was deprived of that, and left five days in a complete
at, tie of uncertainty as to what part of his conduct the Crown
lab ned at by that particular indictment for high treason. Two
witnesses were required to form a complete and satisfactory
te. eimony as to the delivery. One witness swore that he
for nd the list on the prisoner, with the indictment that he bad
ret dived on that day, leaving no doubt that the lists were de-
liv erect ten days before that time, and, therefore, the statute
we ..e satisfied. Now he (Sir F. Pollock) submitted that it was
no t satisfiedond he wouldAtherefore, pass on to the authorities,
going only so far as the meaning of the statute was clear and
incapable of doubt. The course of practice was unbroken and
-unquestioned. He would then proceed to cite a few cases that
had occurred on the subject of the construction of the statutes.
' Their Lordships were familiar with many of them. He ad-
vlressed his argument as a professional argument, and he had
no desire to make a single remark or address a solitary observa-
tion which ought not to be addressed to their Lord-
s hips as Judges sitting there to expound the law.
1-:.e would beg to refer to the case of Lovelace
v. Curry, in the 7th Term Reports, p. 621. It
ws ,s an action of trespass and false imprisonment that
the: defendant had committed, as Justice of the Peace, at
Northampton. It appeared that the notice required to be de-
livered by the 24th Geo. 11. c. 44, was not conformable to the
S tatute in some respects, in not stating what particular writ
was intended to be served out, or what form of action was in-
teasded to be commenced. And the case of Strickland v. Ward
was cited. The objection was overruled—the case proceeded,
and the Court desired the formal objection to be argued before
the full Court. Their Lordships would find a full note of
Strickland and Ward in the note-book of Mr. Justice Yeates.
Lord Kenyon said they were bound to decide according to law,
and find out, without considering whether the Legislature de-
cided when the notice was given,which was required to be given
by the statute. Mr. Justice Laurence said that the statute
pre.acribed a form—that form was to be implicitly followed, and
admitted of no equivocation. He (Sir F. Polloek) refused
to go into the circumstances of that case. He believed he had
omitted nothing that made the other way. The next case was
Taylor v. Fenwick, and Bosanquet v. Fuller, p. 553. Lord
;Mansfield in that ease said the Legislature had thought lit to
prescribe certain forms, whether right or wrong it was of no
consequence. The notice did not tell the place of abode, and
She words of the Statute were, " must tell his place of
a 'lode." He (Sir Frederick Pollock) might say, once
for all, that the situation of the prisoner,
c barged with high treason, entitled him to the strictest inter-
pi vtation ofathe law; and their Lordships were aware that,
in st sad of there being a relaxation, when they came to a
quasi ;don of criminal law the rule prevailed; but there should
be. a greater strictness of construction, and no permission of
rela: :alien ; but their Lordships would find that the tendency
of rt iodern decisions had been to include relaxed constructions
of ally Act. He (Sir F. Pollock) had taken the liberty of
stating before Lord Tenterden that he disliked the whole of the
ex pression of a limited construction of any Act of Parliament.
Ir quire the true construction of the rule, and that true con-
st ruction would not be the imagination of what the Legislature
in :tended, but what it is found they had said. In lst Neville
as id Manning, page 307, there was the case of Ross v. Rolland,
also found in Barnewall v Adolphus, 525. In case of an action
for penalty against a clergyman for non-residence, the Act
resmired that notice should not be served on the clergyman per-
Aoraally, but on the Bishop, at the Registry Office. Now the
neatice was served on the Registrar personally, not at his office.
The Court of Queen's Bench held that it was no proper ser-
vi te; and said, "We ought to put a strict construction, as
far • aspessible, to give effect to all the words of the Act ;" and
Mr.. Justice Taunton emphatically observed, "If we con-
stri to the statute differently, a new case will arise farther
still from the exact words of the Act, then another,
and .so on. So that the only safe course is to adhere to the
exact words of the Act." The Act,
expressly that the notice should -
leftsaid the Court,.
requires
vvoul'il be no answer to that to sayl) that
theat the
no t
ilto
eegaifstterryw.
foun d its way to the Registry. It
Somigoht Sr might not—if it
on the Act 19
himself,eo. 11., iny, an
Idid,st ,
witawso.onu,ldl9b4e,piutrwenascheiedlednutp.afterwards
in Rex v. Harve in
the Act
indictment against a man for not surrendering
there
the place
required proclamation at two market towngs,
; Ipswich, 36
pro-
where the offence had been committed. And
clamations at Hadleigh, 42 miles distant
Lower toffe, 6—but as there were three other market towns;aaodt
the di: >twice of 6,8, and 14 miles, it was held the Act had n
n
been .complied with. It was no answer in that case, as the
t
Attorney-General had attempted to make it at Monmouth, to
say ~ you have something, in fact, better than what the Act
required—you have acquired an advantage by the error." In
the case cited the proclamation had been made, in
the v er)' parish where the party resided, still it
would not avail. Again, in a case, Steer v. Smith, 6
Espsna.sse, 135, where an attorney described himself as of New
lan, London, the description was held to be bad, because New
Inn vas not in London, but in Westminster. Yet stronger
was t'ne case of Ikey v. Nokes, where an attorney's bill had been
delivered, rot at the party's place of abode, as the statute re-
qui; •ed ; but it was clear the bill had reached the party—it was
hat 1 a bad delivery. And to cast light on the subject of show-
ing documents, it would be well to quote the case of Ward v.
Marshall, 3 Perrott, 228, where it was reported to be the prac-
tiee that the original writ should be shown when the
copy was delivered, and that the cases where the copy
was allowed to be served without the original were only
exceptions ; and in another case the Court expressly
held that the rule required the showing of the original with the