The Sun.
London, England, 1846-04-27 00:00:00

GROUP XIX

The select Committee appointed to consider the merits of the Bills
comprised in this Group, resumed its sitting this morning for the first
time since the Easter recess. Lord Harry Vane in the Chair.

BRIDGEWATZIR AND IVIAZDENREAR.
The CHAIRMAN announced that the Committee were of opinion
that the preamble to this Bill had not been proved.
IBRIDGWATER AND TAUNTON RAILWAY

- - -
AND Bums OUR.
The next case taken was that of the promoters of the Bridgwater
and Taunton Railway and Canal, which was opposed by the Bristol
and Exeter Railway Company, who were represented by Messrs.
Talbot and Orbin, and several navigation proprietors and landholders
in the vicinity of the proposed line.
The CHAIRMAN wished to be informed, before going into the case,
if the Admiralty gave their consent to the construction of the pro-
posed harbour at Taunton. The parties were aware that it would be
useless for the Committee to sanction the scheme without suoh
consent.

asT.ekaer
Lordsna
of the.'
and l,lWr.eSlelarrant W
appeared nAN
fur
rntAhme ,
promoters,w h who, togetherreplie
dwtbhiytahtp3thieesusrs.
from the Secretary of the Admiralty, stat g
at The CHAIRMAN said then they would proceed once With the case.
t WRANGHAm, in opening the ease, said there were
Mr. Sergeant
some very peculiar circumstances connected With the promotion of
Admiralty approved of toll' the line and the harbour.
this project, which entitled it to the favourable consideration of Par-
liament, and, with the permission of the Committee, he would go
into a detail of these circumstances. So long ago as 1811 an Act was
passed for enabling a Company to make a canal from Bristol to
Taunton ; but it being subsequently found that the traffic would not
justify the completion of so extensive a project, another Act
was passed ill 1824, limiting the undertaking between Bridgwater
and Taunton; and the present Bill was for converting that canal
Into a railway. About the same time the Canal Company ex-
pended 22,0001. in the improvement of the river Tone,
and in 1842 they obtained an Act to make the Chard canal and
docks ; and, in the end, the Company laid out 100,0001. in construct-
ing works for the public benefit. This money was raised by shares
and loans, and up to 1842, the Company flourishing beyond all pre-
vious expectation, they were enabled to pay the interest on their
debts, and a fair dividend to their proprietary. In 1842, however,
the Bristol and Exeter Railway opened from Bridgwater to Taunton,
and put a period to their sucoess ; and, instead of now being able to
pay interest and dividends, they could hardly receive a sufficient
amount of traffic to enable them to maintain the canal. They therefore
determined to apply for an Act to convert their canal into a rail-
way, and thus enable them to fight in the same armour used by
their rival. They proposed to convert the canal Into a railway, ex-
tending the line from Taunton on to Stoliord, and to make a harbour
of refuge there, accessible at all times and under all circumstances.
The cost of these works was estimated at 390,0061., and to raise
thls money under their existing Acts of Parliament, which gave
them power to raise in various ways 570,000/. ; but they hadhitherto
onlyb
necxe ewr cot us el
dd ct eh vo se
er
p tohwe eer ss t it mo at ht
ee
oe
fx t
theen t o
pf
rl
071,10,2 a e
dOOl. , e andoa r
ehr
se
inocae
atihi
do
the construction of the other works attendant thereupon.

GROUP xxxiv.
The Committee met at twelve o'clock. Present, Hon. William►
Cowper (Chairman), Hon. Montague Gore, Viscount Duncan, Mr.
Walpole, and Mr. Sanders Davies.

GREAT Giurivzsztv AND SEEPPIELD
(BtrparsEß TERRIES).
Some doubt was entertained whether this Bill, which respected the
ferries over the Humber cuanecting the railway, was affected by
Mr. Duncombe's resolutions ; and Viscount Duncan left the room to
consult the Speaker of the House.
The Speaker was of opinion that they affected all Bills brought
before the Railway Committees.
As parties were not ready, this Bill was adjourned till to-morrow.
It was stated that the returns required by the resolutions lately
adopted in the House, would be ready, in the case of the Great
Grimsby and Sheffield (2) Extension, and the Hull and Lincoln Rail-
way, by to-morrow.

Application was made to the Committee to have the consideration
of the Great Grimsby, Louth, llorneastle, and Midland Junction,
postponed till the 18th of May, that time might be given for compli-
ance with the resolutions of the House, which was granted.
The Committee adjourned till twelve to-morrow.

Sub-Committee No. 6.

The members of this Committee met this morning at twelve
o'clock, in No. 11 Room. Present, Captain Jones (Chairman),
Philips, Mr. Forbes, and Mr. Pakington.

The lines before this Committee are—the Warwick and Worcester,
Birkenhead and Llangollen, and the Kent Atmospheric.
The Committee proceeded with the Warwick and Worcester line.
The formal process having been gone through, the Committee wit
into the allegations contained in a petition against the Pill,
surface of the ground was not cortectly shown on the section-
Several witnesses were called on behalf of the promoters, who stated,
the error arose onl• from am
that thi,

LORD MAYOR'S COURT.
(THIS DAY.)
(Before the REcoRDBx.)
VIM FREEMEN AND NON •FREEME N OF THE CITY OF LONDON.
CHAMBERLAIN OF THE CITY OF LONDON V. ST(JRT
AND OTHERS.

The proceedings in this important case, which was before
the Court on Monday last, were resumed to-day. Our readers
will recollect that the case came before the Court upon an
action brought by the Chamberlain of the City against the
defendant, who is a wholesale warehouseman, carrying on
business in Fore-street, to obtain certain penalties to which
he had subjected himself by reason of his carrying on his
business in the City without taking up his freedom. The
taken whole of last Monday was occupied by objections . by
the counsel for the defendant to the jurisdiction of the )udge,
• the manner ef summoning the jury, Ecc. This morning, on
the Recorder taking his seat,
' Sir THOMAS WILDE said, that on consideration the plain-
tiff had deemed it prudent to put in a counter plea, stating
under what circumstances the jury panel bad been returned,
andit would be for his Learned Friend, the counsel for the
defendant,f to take issue, if he chose, upon the statements
contained in it, and the facts must be tried ; or if an objection
were made as to the legality of the proceedings, that might
be argued.as a demurrer on the point of law. But he did not
anticipate that his Learned Friend would do so,ftipon any one
of the facts stated in the counter plea,becausehe believed that
they wereiall d uly and correctly stated. If, however, his Learned
Friend chose to demur, the point might be argued, and his
Lordship having given his judgment thereupon, they might
proceed with the trial of the merits of the question. He (Sir
Thomas Wilde) wouldltherefore counter plead to the:challenge
of his Learned Friend, and would contend that the panel of
the jury was a true, perfect, and impartial one, and that the
jurors who had been returned had not been inserted in the
panel with any reference to the present or any par-
ticular case, but generally to try all cases that might
arise during the period in which they were liable
to sit as jurors in this Court. He would
contend that the list was regularly made out in pursuance of
a bye-law pa.ssedsby the Court of Common Council of London,
the validity of which bye-law he apprehended would not be
gainsaid. If his Learned Friend objected to the validity of
that bye-law, the point would have to be argued on demur-
rer elsewhere. He concluded by handing in his counter plea
on parchment, and by giving expression to a hope that his
Learned Friend would state what course he intended to
pursue.
The Souctroe-GesfEmaesaid, he presumed that the coun-
ter plea contained a correct statement of the manner in which
the panels were returned. He would of course demur to the
counter plea; his Lordship would have to say whether that
demurrer was a good one, and if he decided in the affirmative,
that fact would appear upon the record, ani they would then
proceed to the merits of the case.
- The Clerk of Arraigns then read the counter plea, which
averred the points mentioned above in the remarks of Sir
Thomas Wilde ; after which
The SOLICITOR-GENERAL said there must be an error in
the counter plea with reference to the number of individuals
qualified to serve as jurors in this Court. The counter plea
averred that the names of all parties in the ward of Cripple-
gate who were qualified to serve had been duly returned, but
the number of those persons wasonly twenty-four, which he
apprehended was far from being the entire number of gen-
tlemen qualified to serve in the ward in question. He had
no doubt that, as far as the impartiality of the case was con-
cerned, the averment was strictly true ; but the question
-was, whether, in accordance with the supposed custom, the
'whole of the names qualified to serve had been returned? He
found that.for the two branches ofthis ward, viz., Cripplegate
Without and Cripplegate Within, only 44 were returned as
being the entire list of individuals qualified to sit in the
• ury•box ef this Court. He apprehended that the averment
Ives not in accordance with the fact.
Sir T. WILDE—That is our belief.
The SOLICITOE-GENERAL--Well, I should think that that
cannot be.
The RECORDER was also inclined to doubt the truth of
the averment.
The SOLICITOR-GENERAL wished to know what was the
qualification necessary to act in the capacity of juror in this
Court; for he assured his Lordship that he was as ignorant
of the proceedings of the Court as he was on the day when
they last met. Cripplegate Without was much larger than
Cripplegate Within, and yet twenty-four jurors had been
returned for each branch. The counter plea stated that all
the parties that had been qualified in the Ward of Cripple-
gate had been returned to serve in this cue. Now he very
much doubted whether that document could be true, and he
-would, therefore, demur to the counter plea. Perhaps Mr.
Alderman Challis (who then happened to be sitting on the
bench) would inform him whether there were no more than
twenty-four qualified to serve in Cripplegate Ward.
. The RECORDER—His mouth is shut at this moment, be-
cause, although this stated to be the Lord Mayor's Court,
yet the proceedings are carried on before his deputy, and it
is not customary for the Lord Mayor or the Aldermen to
take part in the proceedings.
The SOLICITOR GENERAL—They say in the counter plea
that they have conformed to custom, and did return the
" several persons qualified to serve as jurors in the said ward,"
but we say they did not.
The RECORDER said, even in the event of all the persons
so qualified to serve as jurors having been returned, it was
possible there might have been some who would have been
unable to serve from various causes. The plaintiffs might
have said " the several persons so returned to serve as jurors,"
and so have got rid of any ambiguity in the wording of the
plea; or " the several persons returned in obedience to the
Act of Common Council."

The SOLICITOR-GENERAL said, if this were done by an Act
of Common Council, as he maintained it was, then the par-
ties returning the said jury, and the jury themselves, were
" unindifferent."

The RECORDER—There was another question which the
Learned Solicitor-General would no doubt urge—whether the
Act of Common Council was legal? But then this would give
rise to another question—namely, what was the state of the
law when this bye-law was passed by the Common Council ?
It was; however, an act of the Council, and did not come
under the definition of a " bye-law."
.The SOLICITOR- GENERA L—There might have been a bye-
law of the Council, setting forth that the persons to serve
on juries should only be returned by persons who were not
freemen of the City. However, the objections and demurrers,
which he had felt it his duty to make would not have been
made if it had been clearly set forth that no portion of the
penalty sought to be recovered from the :defendant would,
in the event of its recovery, go into the pockets of the Corp-
oration of the City of London.
The RECORDER reminded the Solicitor- General that the
City had the government of its local matters in its own hands,
and that the Common Council were empowered to pass laws
for its better government. This Court, however, was not
simply one for the trial of matters solely relating to the City,
but actually was a court of equity, not unlike the old Court
of Exchequer, with but this difference, that it was not com-
petent for it to grant injunctions.
The SoLierrou-GENERAL said, no doubt the old Court was
of an original and public character, but he maintained that
the Court was exclusively a City tribunal, presided over by
a City officer, and a jury composed of freemen of the City.
His Learned Friend had intimated to him that he abided by
the counter plea, and did not intend to arnauji it in accord-
ance with the arguments he (the Solicitor-Gamaral) had ad-
vanced. He should take issue on that plea, amt hand in a
replication. During the interval occupied in preparing the
replication
Mr. RANDALL read the precept issued by the Lord Mayor
to the Aldermen of the various wards for electwinr_ttut,h;
various officers and juries for the year,
mwhih ames trulyset
forth
they should return all the names—" u
such persons competent to serves as petty juries. By
these precepts, it appeared that the Aldermen were required
to return the names of all persons so qualified toakesethrve return.e
.
The RECORDER said the Aldermen did not m
Mr, RANDALL—
But he summons the inquest who make
the return.
The SoLIcITOR-GENNRAL then proceeded toreplyen read
otande
counter plea, on which he should take issue. He then
the replication, which set forth " that . the names and sur-
names of all persons dwelling in the ward of Cripple-
gate, qualified to serve as jurors in the said ward,
have not been annually returned in proper
.manner and form,
and that the names of the jurors in the said challenge were
riot returned fairly and impartially in the said manner
alleged, and, therefore, the defendant puts himself on the
said trial."

GUILDHALL.-(THIS DAY.)

(Before Alderman Sir G. CARROLL.)
William Merritt was charged, upon a'summons obtained
by Mr. Foster, a reporter occasionally connected with the
Morning Post newspaper, and with other journals, for cruelty
to a horse, the property of Mr. Young, the proprietor of
The Sun newspaper.
Mr. Childs, solicitor, of the firm of Wire and Childs,
attended for the defendant. Mr. Foster was present to con-
duct his own case.
Mr. Childs said—l appear for the defendant—it is a perfectly
voluntary appearance. The fact is that the horse ridden by
defendant is the property of Mr. Young, the proprietor of
The Sun newspaper; although the summons is directed to
" the rider of the horse," and therefore, informal, we have
chosen to appear. Still it was the duty of the persons
taking out the summons to have obtained the rider's name in
the best way that he might.
Henry Rumsey Foster then came forward. He said, on
the evening of Friday, the 17th, about twenty minutes after
seven o'clock, I was passing up Fleet-street, and when nearly
opposite the end of Chancery-lane--I was passing up on the
left hand side of Fleet-street—my attention was drawn to
the defendant, who was riding a horse. on the off side at a
very rapid pace, and the animal was proceeding upon three
legs, one of his legs being drawn up under his belly.
Mr. Teague, the Chief Clerk—How could he proceed on
three legs?
Mr. Foster—l could not believe that the animal could so
proceed unless I had seen it myself. The defendant was
spurring the horse, and occasionally looking back as if to
see how the leg looked. I saw that the animal's leg was
doubled up, and that the animal was going upon three
legs, and I ran after him into the road, I think about 200
yards after passing Chancery-lane. I ran down the middle of
the road and caught hold of the bridle, and said that he
should not proceed an inch further. Several persons came
up, and said that I had acted quite right. The boy came
off, and the horse, when he was stopped, put his leg on the
ground- While I turned round to ask the persons about me
if they would come forward as witnesses, as I in-
tended to proceed in the case, the lad got upon
the horse, and went on again. I ran after him,
and again stopped him opposite Bouverie-street. Two
policemen came up at the time. I have nothing
of complaint to urge against the person riding the
horse, who said he must reach the Post-office, and I told him
to take his bag on, but I would hold the horse till he came
back. In, I think, two or three minutes, not more, another
boy came up, and he stopped, probably seeing the other boy,
and the newspapers he had in charge were sent on to post,
and this lad led back the horse to the office. In about half
an hour I went to the office, and saw the lad there. I asked
his name. He appeared very sorry then, and he said nothing
excepting refusing to give his name, because he did
not know my reason in asking it. I said that I felt
it my duty to complain, but I did not think that
he was in fault. I asked the publisher of The Sun (Mr.
Finch) the boy's name, but his reply was, "Mr. Foster, you
seem to be making yourself very officious in this matter."
I said, "That is your statement only? " The defendant
went into the back shop, and I saw no more of him. The
publisher then said, "You, as a reporter, I do not think
it become you to appear against Mr. Murdo Young."
I could not get the name, and I stated the circumstances to
Mr. Alderman Gibbs in the morning, who directed the sum-
mons to be issued in the particular way you find it.
Mr. Childs—You are connected with the press, I think ?
Mr. Foster—l am.
Mr. Childs—You have sent communications to The Sun
on previous occasions? Have you not? Mr. Foster—Some
years ago ; certainly not within these last three years.
Mr. Childs—Do you mean to say that you have
addressed no such communication within the last three
years? Mr. Foster—No, certainly not.
Mr. Childs—What name did you make use of in for-
warding these communications? Mr. Foster—l have no
wish to deny an answer to your inquiry, but I do not see
what that has to do with the ease. However, if you wish
it, I will answer it.
Sir G. Cannonn—l cannot see what the question has to
do with the case, unless it to be to show an ill-feeling on the
part of complainant.
Mr. Childs—Precisely. That is exactly what I mean to
show.

Mr. Foster—Proceed to show the ill feeling.
Mr. Childs--I shall proceed regularly, Mr. Foster. What
was the name you used in your communications to The Sun?
Mr. Foster—When I first took it on me to follow the profes-
sion of a reporter, I adopted the nom de guerre—l suppose
you may term it so—l wrote under the name of Thorne, but
i!thwe
Wgeol
lt
hello on
wnenc tteedalwl ietehnetebeet e Mingdowrintht
the
onset
wlspdarpo perpse(tlhiatt.
Foustre.rclansdStillname.msz
y ouyceosmmunicated under the name of
Thorne?
Childs—Some of those contributions were rejected, I
believe ? Mr. Foster (with considerable heat)—Wbat a
ridiculous question. What bits that to do with this ? I
Mr.
G. ChildsAstaoi—l did not askyou for a speech, Mr. Foster.
Sir C.r.--Answer ythe question • yes, or no? .
Foster—Of Course, some of them wetTerejecte.
Mr. Childs—What is the name of newspaper you now
honour with your support? Mr. Foster—The.2l.lorn-ng Post.
Mr. Childs—Are you known as the celebrated " Jenzkins" of
the Post ?—(Laugh ter). Mr. Foster—Unless the Magistrate
recommends me to answer such questions I shall not do so.
Mr. Childs—Oh then, I'll not press it.
Mr. Foster—l understood, before I came here, that this
system of annoyance would be proceeded with ; but I am
determined to do my duty as a member of society--
Mr. Childs—You are, of course. You knew, I suppose,
that the defendant had come from The Sun office? Mr.
Foster—d.tl
did.
mnoat kymnoelnvtisoontothsawtetahritsodiet. fendlamntighist lithaevespamre;
sume
Mr. Childs—This is most irregular Cncaaalrlted for. But
individual who was held to bail inanoatnhdeiu•
in another case. I
this is not the same lad who is charged
Fester makes this
I (addressing
Mr.
the Magistrate) am prepared to prove that
cannot understand by what right
statement.
M rFosiatearu—g
only asked if you
Mr. Childs—l did not call you so. I
hlthera7 .
a perfect right. you called me " Jen-
kins."—(were Jenkins.—(Continued laughter.)
The complainant sat down.
Charles Gatron, 317 City Policeman, observed complainantl
seize the horse. It was lame. It went on threeegs.
Mr. Teague could not conceive how a horse could possibly
gallop on three legs.
f re— (Laughter)—but I did see it here.
gallop on three legs be
0
Mr. Foster—l assure you that I never saw a horse
bute no blame to the lad, because he was under a so o
I think it was a decided case of cruelty, although I artfttri-_
obligation to get to the post in time.
Mr. Childs, addressing the Bench—Sir, the fact is this.
The horse in question left The Sun office in a per-
fectly sound state on the same evening; but when running,
I presume, and the rider also presumes, he met with some
accident; touched his footlock, it might be; and although the
rider did not know the extent of that accident,
he was aware that the horse bad stumbled, and it is even in
the testimony of Mr. Foster that it was within ten minutes'
time of the closing of post, so that there was no time
to stop to inquire what the injury (supposing it
not a serious one, and could he suppose it so?) could
be. He was aware that the horse was going on ;
we must give him credit, in the absence of any
proof to the contrary, that he did not et know
that the horse was seriously hurt, and he knyew that
he must be in time for post, but immediately that he was
stopped we are told that he dismounted, and that the animal
placed its foot upon the ground.
Mr. Foster—l beg--
Mr. Childs—l will not be interrnpted, Mr. Foster. We
had the statement that when the boy dismounted, the horse
put his leg down, and the natural inference which the boy
would draw, looking at the animal, and seeing his leg iu
this position, that the injury could not be verygreat. He said
that the horse could go on. Ills suspicion was that
he had only hurt his foot in a trivial manner,
and this suspicion was fully confirmed by his
going on. What von, Sir, want to know, is whether he was
acting in a cruet manner, and of this I think there
is all absence of proof. I can prove that the horse
left The Sun office perfectly sound, and it is for the
complainant to disprove it. Now, with reference to Mr,
Foster's evidence, the object which I had in view in putting
the questions which I did was to show that there was
some little matter arising out of previous circum-
stances which gave a bias to his opinions,

Sir THOMAS WILDE demurred to the replication, the sub-
stance of which was, that the panel had not been returned
according to the custom set out in the counter plea. After
reading the replication, in order to avoid any ambiguity, he said
that the defendant alleged that the names of the jurors in the
said challenge were not returned fairly and impartially accord-
ing to the said custom, as in manner and form set forth in the
counter plea. He demurred to this—he demurred to it be-
cause it was a departure, and an attempt to put in a different
issue, from the one contained in the challenge to the array.
That challenge stated that the panel was returned by two
ward inquests, and at the time the said array was so returned
and made the Aldermen and divers persons electing
the said inquest, and each of them, and free-
'lleinterestea and citizens of the City of London were
d in the subject at issue. The challenge
seas made, therefore, on the ground of want of the qualification
of
those who made the return, but the replication to the
Lon ;uthoruneterwpillea sought to raise a question not stated in the chal-
lawg
the persons who made the return were by
eitshed to make it, but whether they made it in a
partiall
proper manner, and that they made such return unfairly and
The Sy.
OLICITOR-Gm/FR,I.. .
read
in the demurrer.
The demurrer was then'
The RECORDER said, then lie understood that the demurrer
was on account of the persons summoning the jury, and being
consequently themselves interested in
the inquiry. That Sir
T. Wilde's replication was, that the jury sere summoned
was made
according ,
tothat although City, allowing t.the parties to be bite
rested, the returns were improperly
made, and se became
invalid.
Sir T. WILDE then proceeded to address the Court, and
said that he conceived that the allegations of his Learned
Friend must fall to the ground, inasmuch as there was a
difference between the terms of the challenge, and
those of the counter plea were different in
to each, other. Now. what was the case? The
allegation,
in the first place, was, that the parties who hjgamtiaodne
a return were objectionable. It was stated
that
there was an objection to the return being made by the
in-
quest ; and when it is replied that the return can be 'd only in this way, and in no other, according to the
customs and bye 'laws in the City, it is again
answered that the duty is now done by parties who could be
impartial in its fulfilment, inasmuch as the parties who made
this return were incapable of making such a return so
as to satisfy the' equity of the case. Between this chal-
lenge and this counter plea, then, there was in
reality no difference whatever. It was never de-
nied that the parties who were to make the
oturn were the ward inquests, and it was impossible, there-
re, that any objection could be made to the parties who
were called upon to make this return, and who, in fact, did
make the return ; and the objection now made, therefore,
fiat t unfounded. It was allowed on all hands
t the
43t. several ward inquests, under the direction
the •
aide Bfteriff, and by the authority of the
couanenf the several wards, were the only persons who
return jurors, and thus it
had shown that the return
d been made according to the laws of the City. The law
of the City was a part of the lawof that Court, and conse-
quentlY, strictly,
the rule by which this cause must be tried.
r! again, It was objected that the parties making this
w urn ere free ottazens, sad it Will COMPiailled that they

V difference of 13% chains between the section of the levels and could not be indifferent parties. Now it should be recollected
the plans. that the parties to this return were not acting in their perso-
The Committee decided that the allegation was sustained; that
fore, altogether, in plain truth, unaffected by this challenge,nal or individual, but in their corporate capacity ; and, there-
the surface of the ground was not correctly shown in the section, it
being marked on the section as a cutting of 22 feet, 'whereas it should
have been an embankment and, if so, quite competent to try the issue of this question.
Objections were then taken to some other portions of the levels of It it were necessary to adduce further reasons, he
the line. adduced the bye-laws to show that the Corporation could act
The remaining allecations having been disposed of, the Committee in no other way than they had done, and were consequently
decided that the standing orders had not been complied with.
quite unaffected in their corporate capacity. Now, what
BIZLICENHEAD AND LLANO° LIMN. was the amount of the counter plea? Why, that those in-
The remaing formal proof in this line were taken, - dividuals who had made the return made it improperly,
Standing orders complied with. and thus, whether they were the persons who should make
KENT ATMOSPHERIC (ADEZTIONAL the return of the panel. Sir Thomas Wilde then went over
PHOVISZ3zviS, No. 2 BILL.)
r plea were
the ground again of the laws and bye-laws, and then pro-
Standingceeded to argue that the challenge and the coutnite
orders complied with.
pleading,
The Committee then rose at a quarter-past three o'clock. really in substance the same, and that e
d issible ought to be apt, pthleearefotree, vih-aes bad,anl and consequently iinadmissible. A
with respect to a counter plea. But con-
sistent, and perfect, and this
in
nwtahs aelssoeattihneatancarsee,
ITea
rtne
h matterad had
been been
allegedbrought
a te in
challenge;t e counterepr
the pet
Jae
ett
ea:,
lie conceived, be compelled to recur to his original. challenge.
wefowhreic,hfell to the ground, and his Learned Friend must,
The SOLICITOR-GENERAL understood that his Learned
Friend alleged that his objection fell to the ground.
Now what was the real state of the case at the present mo-
ment ? It was stated, and stated truly, that the returns of the
several panels were to be made by the Alderman and the
inquests of the several wards, assisted by certain other per-
sons whom he had challenged in the first instance as being
parties, who, as being free citizens of this City, were interested
parties, and, therefore, net unindifferent persons. Such was
the substance of the challenge. But his Learned Friend had
entirely misrepresented the substance of the counter plea,
for it went on quite a different set of facts, and al-
leged beyond the matter of the challenge that
even if the parties 'who made this return were the
right patties to do it, it had yet been improperly made. The
Aldermen and the inquests of the several wards ought to make
the returns. It was on these returns that the panels were
founded, and he contended, in the present instance,
that the returns were insufficient, and the panel was
consequently imperfect and incompetent to try the case.
They had not duly set forth the return of the panel, and he
contended that if he demurred to the counter plea on that
ground, he did not make a departure from the point at issue.
Such a course was regularly taken in the proceedings of the
courts of law. Let his Lordship take the case of a common
assault. The plaintiff charged the defendant with having
assaulted him, and the defendant admits that he had assaulted
the plaintiff, but he pleaded by way of justification that the
plaintiff had assaulted him in the first instance, to which
the plaintiff might reply, "I did not first assault you," and
thereupon issue might be joined, and the point to be tried was,
not whether the defendant had assaulted the plaintiff, but
whether the plaintiff had assaulted the defendant in the first
instance. And surely it would . not be said that in
those proceedings there was any departure, for proceedings of
that sort were of common occurrence in the various courts of
law. And what was the difference in the particular case
before his Lordship? He apprehended that there was no
difference whatever.
The RECORDERAM I to understand you this, that their
counter plea alleges a fact which is the foundation of the law
as necessary to your challenge, and that you take issue upon
the truth of the fact so alleged?
The SOLICITOR-GENERAL answered in the affirmative ;
but he must beg his Lordship not to suppose that he was
arguing a new ground of challenge. He had already stated
a good ground of challenge, viz., that the persons who had
made the return were not unindifferent. The answer to that
challenge was—" That is very true, they are unindifferent
persons; but, although that is so, the return has been made
in accordance with a custom that has prevailed from time
immemorial."
Sir T. WILDR—We do not admit that they are unindiffer
ent persons.
(The case was proceeding when our report left.)