The Sun.
London, England, 1848-05-02 00:00:00

LAW INTELLIGENCE.
COURT OF EXCHEQUER, May 1.
(Sittings in Banco.)
EICHA aIDS V. LORD SUFFIELD—DEMURRERS PAPER.
Thi 3 was an action for work and labour, to which
the clt;fendant pleaded, amongst other things, that the
servicies for the value of which the action was brought
were rendered to him by the plaintiff in the character
of an attorney, and that at the time such services
were so rendered the plaintiff was not certificated. To
this plea there was a special demurrer.
Mr. Temple was heard in support of the demurrer,
and Mr. Hurlstone on the other side.
At the, commencement of the argument, the Court
called on the latter gentleman to support his pleas,
there being a strong apparent inclination to decide
against them, and after a lengthened argument,
which occupied the Court until its usual hour for
rising,
The COURT intimated that the argument of the
Learned Counsel for the defendant had succeeded in
throwing doubts on a point which seemed at first to
be perfectly free from any doubt, and that time was
required to consider the sufficiency of the pleas.
Judgment deferred accordingly.
THE QUEEN V. MICHAEL STOKES.
XTRDEIS. OF ANN GARRAD AT LEEDS BARRACKS.
On Saturday last, the point reserved for the con-
sideration of the fifteen judges by Mr. Baron Rolfe,
at the last Yorkshire assizes, was argued by Mr.
Dearsle!y, the prisoner's counsel. The indictment
alleged. that the prisoner, Michael Stokes, " shot, dis-
charged, and set forth" a certain musket, and then
went on to allege that with the ball so shot, dis-
charged, and sent forth, the prisoner caused the death.
It was contended that these allegations were bad for
uncertainty and repugnancy, for that though the
words "to shoot and discharge" a musket would
mean to fire off a musket, the words " shoot, dis-
charge, and send forth" a musket must he taken to
mean that the musket itself was sent forth as a missile,
the words shoot and discharge being controlled by the
words sent forth. It was laid down in " Hawkins's
Pleas of the Crown" (title Appeal, p. 261) that an
argumentative certainty was not sufficient in an in-
dictment, and that a precise certainty was always
required in favorem vita. Mr. Dearsley cited other
authorities, contending that the words " sent forth"
could not be rejected as surplusage.
The Judges took time to consider, and yesterday
(Monday) intimated to the prisoner's counsel that in
their opinion the conviction was good, and the cause
of death was stated with sufficient certainty, the words
" sent forth" being rejected as surplusage.
BRISTOL COUNTY COURT, April 29.
(Before ARTHUR PALMER, jun., Esq., Judge.)
At the sitting of the court for the hearing of in-
solvency cases,
Mr. Ayre, an attorney, addressed his Honour and
said that he was engaged in the first case, and he
wished to know whether it was the intention of the
Court to adhere to a rule which had been laid down,
that when a sufficient bar was present, an attorney
could not be heard as an advocate for an insolvent ?
and he added that an article upon the subject appeared
in the last number of one of the Bristol papers, to
which he would call his Honour's attention.
The paper in question was then handed up to the
Judge ; the article in which alleged as a motive for
the rule for giving counsel the right of pre-audience,
that it " would appear to be established solely to in
crease the loss of the unfortunate creditors, and to
put a few fees into the pockets of the local bar ;" and
with reference to the distinction as to the rule between
the practice in actions for the recovery of debts, and
the practice under the Insolvent Debtors Acts, the
article went on to say, " Surely one is driven to the
conclusion that caprice alone could have established
such a state of things in one and the same court."
There were at this time four barristers present in
the court.
His HONOUR then delivered his judgment on the
matter, and said it was his intention to adhere to the
practice of giving to counsel the right of pre-audi-
ence in insolvency cases, and he would now state the
grounds on which that practice was founded. By the
statute of the 10th and 1 Ith Victoria, the jurisdiction
of the Court for the Relief of Insolvent Debtors on
circuit, under the Ist and 2d Victoria, was trans
ferred to the County Courts ; consequently, at the
hearing, those courts did that which was previously
done by the Commissioners of the Insolvent Debtors'
C eurt on circuit. Now, on circuit, before the Com-
missioner, it was the invariable practice to give to,
counsel this privilege of audience. In cases, there-
fore, under the statute of the Ist and 2d of Victoria,l
he considered the practice to have been established
during the time when the Commissidhers made their
circuits, and no attorney could practiseftn the Insol
vent Debtors' Court unless admitted by that court,
without being guilty of a contempt of court, and lia-
ble to be fined and imprisoned ; he believed there were
but three attorneys in Bristol who were so admitted
Then, with respect to the insolvency jurisdiction
under the statutes of the sth and 6th and 7th and
and Bth of Victoria, which jurisdiction was ad-
ministered by the Bankruptcy Courts, this jurisdiction
in cases in which the insolvent had resided for a
specified period within a certain distance of the
Post-office in London, was, by the statute of the 10th
and 11th of her present Majesty, transferred to the
Insolvent ,Debtors Court in London, and such juris-
diction' in all other cases was transferred to the
County Courts ; and then arose the question, what
should be the practice with respect to the point now
under consideration ? And in the case of Newburn
(a protection case), heard on the 19th of October last,
in the Insolvent Debtors' Court in London, reported
in the 10th volume of the Law Times, p. 68, it was
held that the rule theretofore recognized, giving
privilege of audience to counsel under the Ist and
2d of Victoria, should be extended to cases under
the sth and 6th and 7th and Bth of Victoria; and in
that case Mr. Commissioner Harris observed thae,
" There were present four or five gentleman forming
the bar of that court. In the face of that bar of
qualified practitioners an attorney could not 4,
heard as an advocate. He laid that rule down as the
deliberate opinion of the whole Court. He for one would
not break through the established practice of thr
court in that respect for five-and-twenty years. If
any persons objected to the determination of the
Court to persevere in this practice, under the sta-
tutes now transferred to that jurisdiction, they could
easily set them right, if they thought themselves
agrieved, by mandamus." Mr. Lewis (the attorney
in that case) then intimating that "he had been un-
expectedly deprived of the assistance of counsel who
had been regularly instructed, and hoping that tinder
the eircumstenees he might be permitted to point oat,
not in the capici'y of an advocate, but merely for the
information of the Court, several irregularities appa-
rent upon the face of the petition," Mr. Commis-
sioner Harris said, " Oh, certainly. He only wished,
in the very first case that occurred, to intimate the
resolution to which the Court had unanimously, con*,
which was the more necessary, as the proaicititicheadh been
much discussed; from the contrary
prevailed in the courts at Basinghelli2street." hating
by the County Courts Act of the 9th and 10th of her
present Majesty, it was directed that in cases not
expressly provided for, the general principlesb Of the
practice of the superior courts mightadopted
and applied, at the discretion of the judges,
to actions and proceedings in their several
courts; and by analogy, it had appeared to
him to be a proper exercise of discretion, in matters
of' practice in insolvency, to adopt and apply the
practice of the Insolvent Debtors Court in London
to the proceedings of insolvency in this
ere Court and
if all County Courts did the same, th would, ,as
far as circumstances would permit, he one uniform
practice throughout the kingdom, which seemed.etonito,
he
desirable! and as to the point under consideration,

had shown that he had adopted the practiee of the
Insolvent Debtors Court in London. In matters 'of
insolvency attorneys were not entitled, de jure, to
plead as advocates, to the exclusion of counsel. It
appeared that the Legislature did not mean they,
should have any such right ; for if it had been so
meant, it would have been expressly provid-d, as;it
was in bankruptcy by the Ist and 2d of Wm. IV.,
c. 56, s. 10, which enacted, that attorneys enrolled in
the Court of Bankruptcy might appaar and plead,
arid in express words, " without being required to
ePi°Y counsel." He had now given the grounds
upon`f
which he had acted in this matter; and he
trusted it would b
otherwise might be seen, that however sound or
formed, he had not
be the opinion which he had
which he was sorry acted from the motive or caprice
him. Like all otrhye should
have been attributed to
he should always be glad men he was liable to error, and
correcting any errorginatotohiave an opportunity of
ich. he might fall in the
performance of his judicialw d
but he must say
that it was improper to conclutidtelesh;at:such " a motive"
practice of a court
or " caprice,' had established thet
of justice. There was a legitimat
i rrnt
eondde consideration of
b
r i ngi bringing
before all courts any point for the
reconsideration, and it must have a
minds to bring courts, and consequently tendency
in
Borne
tration of justice, into disrepute, when suche adminis-
a motive
or caprice was attributed to judges as the source of
their judicial conduct.
Mr. GRAVES, a barrister, then rose, and expressed
his concurrence in the View taken by the Learne
Judge, and in the able manner in which
the grounds
of the practice had been explained by him.
Mr. SToNE, barrister, also rose and said, that the
editor seemed to have overlooked the
power of ini•
E.
prisonment for three years, which required the
*attendance of a bar ; and that the editor was
error when he stated the general practice of other
Courts —the fact being otherwise. The Learned
yiai Counsel then mentioned the names of several Courts,
distinguishing .between those in large towns, which
4rad, and those in country places, which had not, a
''X\r-AV*r

10Z1Mr. A TRE, the attorney, also expressed his full
vincurrence in the practice laid down.
His Hostors then said he was glad to find that his