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

THE SUN, LONDON, MONDAY, .1 k NUARY 27. 1840.

copy; and that the strict practice ought to be adhered to. On :the 26th July, 1675, for some reason the diet was '
Further, the courts had held that if the copy were served in the deserted. There it appeared the objection was:that the list
morning, and the original showed at a subsequent period, it was not delivered. Their Lordships said that the defen-
would not be a valid service, unless the copy was re-procured dant had not got the list in time, and therefore the diet was
and re-delivered to the party at the same time, deserted. His Learned Friend the Attorney- General said the
Mr. Baron ALDERSON —No doubt that would be law, objection must be made before the trial commences—he (Sir F.
otherwise the party could not compare the copy with the ori- Pollock) said that such was the case. He now came to the
ginal. case of David Stowell. Stowell objected that he had been
Sir FREDERICK—WeII, my Lords, then your Lordships served with a list of witnesses not subjoined to the copy of the
have a strict judicial decision as to the meaning of the word at indictment. Their Lordships found that his objection was valid.
the " same time." Mr. Baron ALDERSON—Was not that process in Scotland
Mr. Baron ALoEgsoN—Otherwise it would rest with his equivalent to what they call quashing the indictment ?
recollection. Sir FREDERICK—Not equivalent.
Sir FREDERICK POLLOCK—IR the case of Akett v. Stocks, The ATTORNEY-GENERAL—Where the diet is deserted,
1 Moore and Payne, 346, which was an action against pro loco et tempore, the prisoner may be proceeded against.
a magistrate, Mr. Justice Parke said he always felt Again, if it was simpliciter, he could not be proceeded against
disposed to go every possible length in favour of the a second time.
plaintiff's case. In the case before him the question was Sir F. Poteoce—Their Lordships would fled that the Court
whether the notice contained a sufficient notice of the plaintiff's would only desert a diet, pro loco et tempore, with the
cause of action, and it was decided in the negative, and the consent of the party.
plaintiff was nonsuited, notwithstanding it was stated that the The ATTORNEY-GENERAL had the authority of the Lord-
conduct of the defendant was disgraceful, and that the objection Advocate for saying that it could be done without the consent
was taken merely to defeat that one course of law. He would of the party.
now come to another exposition of the words "at the same Sir FREDERICK POLLOCK—Nobody could doubt that the
time." Their Lordships were aware, that by the Statute of wording of the Scotch statute was adopted in the statute of
Frauds a will of lands was to be executed in the presence of three Anne, with this alteration, that the copies were to be deli-
witnesses. It had been held, however, that the three witnesses vered not only at the time, but that time should be ten days
might be present at three different times, and that an acknow- before the trial. He (Sir F. Pollock) thought their Lordships
ledgment of the execution, or running a dry pen over the name, would, therefore, in some measure be influenced by the Scotch
and the three witnesses seeing that ceremony gone through at statute.
three different times, was a good execution. In the case of Lord DENMAN thought they were not bound by the Scotch
Jones v. Lake, 2d Atkins, 176, and cited also in Cruge's Di- statute, for it was no authority.
gest, the Lord Chief Justice observed, " the three witnesses Sir F. Poeeocx then said the cases had been stated correctly.
were to attest the signature of the testator, but they were not There was a case of a party accused of killing deer ; the objec-
required to do it at the same time—the act was silent in that tion was taken before the Sheriff, but the prisoner had not
particular; it would therefore be making a new requisite if been served with a copy of the list of witnesses, and the She-
they required it to be done at the same time. If the testator riff postponed the trial for three weeks. Mr. Baron Hume
reiterated the act in the presence of each of the three wit- said of that case, that the
.process had fallen 'altogether.
nesses, declaring it to be his last will and testament, that was Certain other forms belonging to the Scottish law were
sufficient." If there was any doubt upon the point, it was re- introduced by their Acts. He should merely observe, that on
newed by the late act, 1& 2 Victoria, chap. 76, in the case of all those occasions it appeared that the law should receive the
Foss v. Jackson, 3d Spence 198, where a form of conviction most strict construction. Nothing had ever been taken
was given by the statute far an offence, and, provided that the as an equivalent or a substitute, or, according to
conviction should be in that form, it was contended in behalf of the expression of Scottish lawyers, as an equipollent for the
the defendant, a magistrate, that it was optional with the justices observance of these forms. He had read a passage in which
to draw it up as they pleased; the statute having created an offence, the writer had expressed an opinion somewhat unfavourable to
it might be pursued at commonlaw. Lord Kenyon said," No, his present argument, but he calls at the same time various
the conviction must be drawn up according to the form pre- authorities, every one of which is at variance with his views.
scribed."- The conviction was, therefore, decided to be a nullity, He believed that the passage was not to be found in any of the old
and the plaintiff, who was thus illegally convicted, received editions of the work; and if it could have any weight against the
damages. In the case of the King v. Richards, sth Adolphus prisoner, it would be that of a comment made after the action had
and Ellis, which must be in the recollection of several of their gone by, and giving that comment a value above law. The
Lordships, it was held that the Court could not follow the sub- passage was in page 250—it was but the comment of a bygone
stance of a Statute, tut only the very words that were used. law, and it did not appear to be the proper mode of explain-
By the 57th Geo. 3, chap. 147, the object of which was to ing the question. The learned writer gave an opinion unfa-
substitute certain acts in lieu of very expensive proceedings in vourable to him, but he acknowledged that practice did not
the Ecclesiastical Court, which had become a sort of oppro- sanction his views. In the case of Mackenzie in 1816, the
brium in the eye of the law, it was provided that a significavit objection to a misnomer of witnesses was held to be in due
should be under the hand or hands of the Judge or Judges, time at the trial, and was accordingly sustained. A like course was
whose commands were disobeyed. In a case where three taken with respect to the witnesses in a case before Lord Gillies.
Judges gave the command and two signed the significavit, the The objection was allowed in that case after the jury had
Court held that that was not sufficient, and the proceedings been sworn. In the present case the prisoner got a copy
were held to be vicious. In Innes v. Sparke, Ist Term Reports, of the indictment on the 12th, and on the 17th got a
44,where a question arose about a qualification to kill game, Mr. copy of the witnesses; and he had certainly a right
Justice Ashurst said, the game laws are rather to be considered to say that that was an illegal practice, and that
as positive rules than founded upon reason. It is safer, he was not bound to take any care of his defence. (The
therefore, to adopt what they say, than to suppose what they learned counsel here entered at some length into the practice
meant to say. According to such a construction, we must of the Scottish Courts, and adduced some cases to prove his
suppose that it was intended to exclude the father when it gave interpretation of it.) He thought the law in Eng-
a qualification to the son. In " Rex v. the inhabitants of land was to the same effect, and that the statute of Anne
Barham," Lord Tenterden said—" Our decision may, perhaps, was framed on the statute of Charles the Second.
defeat the 57th Geo. 111., but it is better to abide by this The true construction of the provisions of the Act appeared to
course than to put another construction upon the words him, and their Lordships would find in looking into the autho-
in order to give effect to what we may suppose to be rities, that the prisoner was to have a copy of the indictment, a
the intention of the Legislature." And in another case list of jurors, and a list of the witnesses. When was he to ob-
the same Learned Judge observed, it rests with the Legisla- ject to the indictment? That was settled by the old statute,
ture to make what alterations it pleases, but the duty of the but he believed never by the new, and he was very far from
Court is merely to give effect to the provisions of the statute." saying that even if the delivery of the copy of the indictment
In the case of Brandling v. Barrington. which was in the was irregular, and not in the presence of two witnesses—he was
6th Barnewall and Cresswell 475, which was a case of seizing far from saying that in such case he would be too late to
goods by virtue of a writ, in the county of Durham ; and the take an objection at the trial. He by no means admitted that
question was, whether the writ was in the nature of an exe- it at the close of the trial, by calling the solicitor of the Trea-
eution, in order to allow the landlord to get his rent under sury into the box, it should turn out that the prisoner never
the statute of Anne. In that case, Lord Tenterden said the had a copy of the iedictment or a list of the jurors, he by no
plaintiff had no right of action, because the words of the means admitted that a man could be found guilty and executed
action had not been complied with, and it was upon a proceeding so entirely adverse to the Act of Pasha-
always safer to abide by the plain words of the statute. ment. But he protested against being called upon to admit
Again in the case of Vaux against Hansard, Ist Bosanquet that it would be a good proceeding; for if their Lordships
and Puller 224, the Court held that there was a broad distinc- discovered that so Important an omission had taken place, they
tion to be drawn between a thing done on the same day and at must decide in favour of the prisoner. A Magistrate must have
the same time, and in Bates v. Billing, 4 Follett 231, the clues- notice, and if it were not proved that he had had proper notice, the
tion was, whether the defendant had, in fact, been arrested— action could not be maintained. In the case of a constable the
the writ wes sued out, of which fact the defendant was aware, a,tion could not be maintained without demanding a copy of the
and he went and put in bail—there was no actual arrest, and warrant.
the Court held that the act bad not been complied with, and Lord AIIINGER—The statute says the action can still be main-
the rule was refused. In Wachet v. Shaw, 3d Campbell, it was elined.
held that an application for the cost of a special jury would not do Sir F. PoLLOCK had not the Act, but he was pretty certain that
if made the day after a trial—the Act saying that it was to be the action could not be maintained unless the party previously slid
made after the trial, and the Court held that that meant imme- ,i) and so. Even the good sense of the thing would show that the
diately after the trial. Again in Richard 5. Stuart, 10th Bing time to object to the indictment was when the party was
ham, 320, Lord Chief Justice Tindal laid it down that the called on to plead, to the Jurors was when they were called
special words of the A..t of Parliament must be strictly coin- an to answer to their names, &rid to the witness was
plied with, otherwise it woul Ibe opening a door to conjec- shen he was put into the box. He would be glad to
tore as to the meaning of the Legislature, and that judg- know how the objection could be taken at any other time.
merit was coincided in by Justices Bosanquet and Alderson. Observe, the prisoner was not an actor in ally of those proceedings.
Again in Smith v. Crump, Ist Dowling's Practice, Mr. Baron ile was called from his dungeon to be told that au indictment had
Parke said the writ was vicious, inasmuch as the form laid aeen found against him—that was the beginning of the case. He
down by the Act of Parliament had not been complied with. wes visited then by a person who brought him a copy of the in..
In 3 B arnewell and Adolphus, 250 and 887, the Courts se, .. ictment, with or without a list, as their Lordships might decide,
aside proceedings for a misdescription, and in 4 Barnewall and .nd he was then called upon to plead whether he was guilty or not.
Adolphus, in the matter of Flounders the Court set aside the i'hat was the only question put
might
oighhimt .ing:Virbeaitnte.Oiutr?se was he
proceedings in consequence of an irregularity, which was rake? 'Was he to decide aye or no in a matter which their Lord.
He was aware that
islitnye.ebtuhte
that
tzwvasa
the non-compliance with the Act of Parliament. Lord hips thought of sufficient importance to adjourn from Monmouth
DEN ]IA N doubted indeed, but was over-ruled by the rest ,o London, that all the Judges he to
o
of the Court, and the rule was discharged, The ground :se deprived of the benefit of an objection which every Justice of the
of this decision was, that the delivery was in such a way that Peace was entitled to make ?
if the opposite party had moved as they might have done, on lion of the point, the prisoner had been found
the first day notice would have been sufficient. So that 'art to be urged against him. He stood there clothed, with the
the bare possibility of any injury occurring was held to make permission of his Hon. and Learned Friend, in the same defence as
the notice bad, though in point of fact, and at the time when .f the trial had never taken place.
the motion was made, the notice was good. He would now Lord ABINGER—NO doubt of it.
proceed to cases connected with the Scotch law. He might say Baron ALDERSON—You are arguing the question as if it were at
with regard to the authorities on this head that the point Monmouth before the triai had proceeded.
regarding the time for taking the objection was so blended with Sir F. Pora.ocis was arguing the question merely to show that
the point of the objection itself, that it would be impossible in the guilt of the party was no element in the question. He would
citing these authorities to separate the one from the other. ask at what period the objection had been taken—by what law or
Now he would first refer to the second volume of Mr. Baron authority could the objection have been taken at an earlier stage ?
Hume's Commentaries on the Law of Scotland respecting He was not without some guide which would possess considerable
Crimes, published in 1829 ; the chapter on the execution of authority with their Lordships. It was the solemn recognition by
the libel, page 262. The law of Scotland upon the subject of the twelve Judges of England as to the period when the objection
giving to the accused the copies of the indictment or charge— should be taken to the Jurors. It was published in 1709,
,and, as
the " diet," as it was called, and the list of witnesses, was very Judge Foster said, by direction of the House of Lords, and, as had
ancient, so far back as 1672, 16th Charles 11., which contained been admitted by Baron Gurney, on the trial of Brandon, was the
many directions as to criminal proceedings and civil. After stat- form of proceeding recognised by the twelve Judges. In page 20
ing it to be of the highest importance that all matters relating to of that book he found an important marginal note, that a witness
criminal proceedings should be determined in the most solemn, must be in attendance at the time of the prisoner pleading to prove
exact, and regular manner. The Learned Baron proceeded to the delivery of thecopy of the indictment.
give various directions, and he stated the 11th prevision to be, Baron ALDERSON—What is the date of the resolution ?
66 When any criminal libels or summons of execution are given Sir F. Portocx—lt has no date, but appears to have been
against any party, at the same time lists of the witnesses to be published in 1709.
summoned for proving the said libel, and the persons to pass Chief.. Justice TINDAL—The order of the House of Lords is
upon the inquest, shall be given to him.' Now this, Sir dated 20th April, 1709, and is subscribed by all the Judges.
Frrederick observed, could admit of no doubt. Nothing was Sir F. POLLOCK would then call their attention to the form
said about ten days, or any other period, but "at the same presented by the resolution referred to. In page 20 of that expo.
time." sition of the law made by the Twelve Judges in 1709,it was laid
Mr. Justice CoLTMAN What do yon understand, Sir clown that it copy of the indictment was to be delivered at least
Frederick, by the word " execution ?" live days betore the party were called upon to plead, but there was
Sir FREDERICK—" Serving," my Lord. this important direction, that a witness must attend the Court at
The ATTORNEY-GENERAL—NO; citation, the time of the opening of the business, in order to prove the deli-
Sir FREDERICK—My Lords, execution means serving. very of a copy of the indictment to the prisoner if there should
The ATTORNEY-GENERAL (referring to the Lord-Advocate be occasion. The inference he drew from this was, that when
who sat behind him)—Yes ; but the service is the citation. a party was called upon to plead he might say that he had required
Sir FREDERICK—That is of no moment. The mere point a copy of the indictment and had been refused, therefore the pro.
was, that there was no ambiguity at all in the statement. 'stone. secutor was to have a witness in attendance to prove the fact.
He could conceive of parties desirous of getting over the conse- Whether that was now obsolete was not fur him to say, but acs
quences of some oversight or blunder—he could conceive—in- cording to the statute of Anne the Clown was bound to deliver a
deed it had been so argued in his hearing, or he could not have copy of the indictment to the prisoner whether he asked for
imagined it. It might be said that the statute of Anne, which it or not—it was directed that the prisoner should be asked
positively said, the service of all shall be at the same time,— if the copy bad been delivered. 'What was the meaning of
and that one thing shall be done ten days before trial. that ? The House of Lords called upon the Judges to settle
It might be argued, that "at the same time" meant "at the proceedings—they approved of a certain form which was pub_
different times." But the statute he was now considering, fished by authority, and part of that form was, that the prisoner
'would admit of no excuse for such an argument. It was dis- was to be asked if he had been served with a list of witnesses, and
tinctly and positively enacted, that the things shall be all if the said No, then the prosecutor must be prepared to prove the
done "at the same time." These were the statutes of Mary fact. His learned friends contended that the objection ought to
and James, which did not bear on this particular question--and have been taken when the prisoner was called upon to plead.
the only one that did affect this particular point was the Act Now suppose that the prisoner had received a list of witnesses, in
of Charles, which positively directed, that it shall be "at the all respects regularly delivered in the presence of two witnesses, li
same time." And those words had been copied in the statute but with the names and without any additions—or with ad-
of
Anne. There was in that statute an additional (Miens but without any place of abode—clearly upon the face
enactment, that the copy of indictment, with the list of that not a single witness could be called—when was the
of witnesses, should be delivered ten days before the proper: time to take the objection except when
trial—but the former part of the statute of Anne the witnesses were called ? Was it the duty of the prisoner to
directing that the indictment and lists were to be delivered send to the Solicitor of the Treasury to say " You have not
"at the same time," was copied from the Act of Charles 11., propetly served me with the lists—they are not according to the
and must, therefore, mean the same thing. Now he found statute—pray come and cure the mistake?" When
that the practice of the Scotch Criminal Courts depended on could the objection be taken, except at the moment
what were called " Acts of Adjournment," framed by the when it was proposed to examine the witness ?
Judges, as " Acts of Sederunt" were by the Civil Courts, and Although it was directed that each service should be contempora-
as rules were by the English Judges invested since the ncous, still there were three distinct things. Let them suppose
passing of the late Act with the authority of law in the list of witnesses had been delivered without any addition or
certain cases. But these " Acts of Adjournment" could place of abode, and the prisoner pleaded guilty on being arraigned,
not contravene the Act of Parliament. They might, he (Sir F. Pollock) said that the circumstances of his being put on
as they had done, further the Act by settling how the his trial did not alter the case, as regarded the prisoner's right to
notices should be delivered together, but they could not object. He (Sir F. Pollock) urged that, where the law had not
so alter the law as to provide that they should be delivered been complied, there was a preventive of the consequences of that
separately. Now the Act, commonly called Sir William Rae's, law taking effect. He asked, on what principle it could be said that
which did away with some objections formerly utterly fatal, did a man pleading not guilty, supposing he admitted the proper and cor-
not apply but to Scotland ; there was no such provision in the rect service of the indictment thereby,that he admitted the copy oftee
English law, which stood in this respect upon the statute of jurors had been correctly served. There was a case in the Statute
Anne. He did not mean to say, in proceeding to state the books, where the list of witnesses had been served; but the address or
judgments of the Scotch Courts, that they were quite conclu- designation of the chief witness was wrong, and that flaw was
sire with their Lorships ; but still he would respectfully urge found out. Even in that case, although the prisoner found on
i
that in a case of the highest charge which could affect a who the witness was, the law said the list was wrong, and
subject, their Lordships would not depart, against the pri- was thereby excluded; and it was no answer to say that
soner, from these decisions. Now the Learned Baron the prisoner had pleaded to the indictment. He (Sir F. Pollock)
( Hume) proceeded to lay it down thus :—" The substance contended that they had a right to consider the case as one in
of the citation is the serving the panel with a copy of the libel, which no list of witnesses had been delivered at all ; for it was a
or diet. to which is subjoined a copy of the citation, under the bad delivery, and it therefore was on the same footing as if there
hand of the officer, wherein the panel is charged to appear had been no list. He would ask their Lordships whether the pri_
at such a time and place to undergo the law for the offence set soner was bound to make the objection. How did he
forth in the diet; and the panel is to be at the same time served know who the Crown intended to call ? At Monmouth many
with a list of witnesses, that he may be prepared to make com prisoners had been acquitted without a witness being called. How,
petent objections. The Judges have not been used severally in these cases, could the prisoners know their fate. If the list of
to bold the copy to the original, except in substantial particu- the jurors had not been delivered,
were they to infer that the Crown
lays. On this, as on other occasions, they have been in the intended to enter a none prosectui ?
habit of considering chiefly the object and the spirit Lord Chief Justice TINDA If no list had been delivered they
of the regulation, which is plainly this, and nothing could not have called i
any witnesses.
more—to inform the panel of the nature of the Sir F. Pou.oce—
crime alleged against him, and also of the evidence one delivered not under the statute? He thought that now the
which is to be adduced against him : and a varia- question was brought to an end. He said the Court could not
tien from the record is nor held fatal, unless it leads the panel measure the degree of irregularity, now measure how far the life
into some error. New he (Sir Frederick) would observe to of the prisoner might
was the difference between no list and
their Lordships, that in the law of Scotland the original list of and its prosecutors. ght be sported
He (Si
Frederickwith
b h
PolthelocGovernmentk)
confidently
the witnesses, and the Jury, formed part of the record. There said that if the list -
n,ad been delivered less than ten days
was nothing analogous to that in England. Hence, in Scot- before the trial, the prisoner would have excluded the witness.
land, when there were variations in the copy from the Record, He had now raised all the points which he could; and he had oc-
the panel might refer to the Record. In England, it was copied more of their time than he should have wished. He could
it
material to keep in mind, the indictment was the only one of not help saying, that as this objection was known before they had
the things a copy of which was delivered to the prisoner, assembled at Monmouth, his Learned Friend should not have per-
which forms part of the Record. The Jury panel severed in his error, if error it was. He thought it would have been-
could scarcely be said to belong to the Record. There better if it had been stated to the Judges at the Commission, and
was no list of witnesses before the Court, or to which if they were made parties to the proceedings, and had been asked
the Judge could refer. Insomuch that according to the law of their advice.
He thought it would better become the administra.
England if the prisoner refused to take notice of the charge, the lion of justice if the mistake had been avowed, and the proceedings
Judge
had no means of checking the prosecutor to see what corrected, if correction could have been administered. Though
witnesses were
_Produced duced whose names were not delivered to visit on the part of his
_pro this might have involved a second
the prisoner.
which he had beers referring, several cases cited— him some mortification and inconvenience, it would have
and regarding • the lists of witnesses the doctrine would be been better if all the Judges of England had been
as Counsel for the prisoner,
thought that,
respecting the list delivered right Friend might h
omitted 11l to the he had a to say—though his Learned say e had
found analogous to that e the libel—that if the consulted. He
name of any witness was .
prisoner—or if there was
an error in the name—the blunder no right to form an opinion on the subject—lie would, however, at
had waited for the moment
(or the juror) from serving or when he should have to take the objections. He had been now thirty
would not be pleaded to the extent of " dismissing the libel," least, say, that hour after hour he
but only to exclude the witness..
declared before God and the country that
lists five days after the copy of I he was left at a
appearing. But in: the ;English law, an objection, for in- I years at the bar; and he
stance, to the delivery of the
that loss when to take that objection, and that he be-
indictment—it pointed to this—that 1 lieved for hispart have keen taken before the jury
was an objection . . that it could not
II h a the
e
what the Scotch Judges had decided as to the serving of the cases that had been put, an l he had adva
d all the prinsi? es d need,
there had been no service at all. Now let their Lordships see i was sworn. When their Lordships shou.ld have considered
lists. In 1672, March 1, in the case of a Wm. Clifford, of For-. thought they would coincide in his opinion, an that they would
far, the Lords " desertedthat it was when the Jury had been called, and then only, that the
considered equivalent to giving up the prosecut! .
the diet," an expression Sir F.
'on—or rather, • prisoner could have objected to the calling of the witnesses. If the
l• ' ' listwere statutes, then
to giving u that prosecution,—for o p the desertion simp iciter not served in strict conformity with the
and for ever, would be absolutely but there might be desertion there had been in reality no list delivered ; and he submitted that
should have the benefit of that illegality.
lie was citing ..
, he Loris deserted the diet, because the lisl4 ' The ATT°RNEY-GENenst, thought that no one would deny that
pro loco et tempore, for that time merely—but in this case the prisoner
were not delivered to the parish at the same time his Learned Friend did well in reserving his objection till the Jury
with the citation. In another case they deserted the diet, be- had been sworn. fie night, however, have taken it most
cause there was no distinct evidence of the delivery of di° unquestionably when M. Frost was called on to plead; he might
lists with the original of the libel,—and then, by con- have taken it to be a valid objection when he (the Attorney-General)
sent—the prosecution was continued to another period, had moved that Mr. Frost should have first taken his turn. No ob-
Those were the prceeedine ~ he believed. not in eases of' 1-411 )ection had been made in one cr other of those stages--such a pro.
treason aid felony, but in the criminal proceedings in Scotland. eeseling would haye only led to a postponement, and could not