The Sun.
London, England, 1846-04-28 00:00:00

S APRIL 28, 1846.

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 ieturned
and made the Aldermen and divers persons electing
the said inquest, and each of them, and free-
• men and citizens of the City of London were
interested in the subject at issue. The challenge
was made, therefore, on the ground of want of the qualification
of those who made the return, but the replication to the
Counter plea sought to raise a question not stated in the chal-
lenge, whether the persons who made the return were by
law authorised to make it, but whether they made it in a
proper manner, and that they made such return unfairly and
partially.
The SOLICITOR-GENERAL joined in the demurrer.
The demurrer was then read.
The RECORDER said, then he 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 were summoned
according to the usages of the City. to which an answer
was made, that although allowing the parties to be jute•.
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 substance
to each other. Now, what was the case? The allegation,
in the first place, was, that the parties who had made
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 made
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
return were the ward inquests, and it was impossible, there.,
fore, that any objection could be made to the parties who
were called upon to make this return, and who, in fact, did
'snake the return ; and the objection now made, therefore,
was totally unfounded. It was allowed on all hands
that the several ward inquests, under the direction
of the sheriff, and by the authority. of the
aldermen of the several wards, were the only persons who
could return jurors, and thus it was shown that the return
had been made according to the laws of the City. The law
of the City was a part of the law of that Court, and conse-
quently, strictly, the rule by which this cause must be tried.
Then, again, it was objected that the parties making this
eturn were free citizens, and it was complained that they
could not be indifferent peak& Now it should be recollected
that the parties to this return were not acting in their perso-
nal or individual, but in their corporate capacity; and, there-
fore, altogether, in plain truth, unaffeoted by this challenge,
and, if so, quite competent to try the issue of this question.
If it were necessary to adduce further reasons, he
adduced the bye-laws to show that the Corporation could act
in no other way than they had done, and were consequently
quite unaffected in their corporate capacity. Now, what
was the amount of the counter plea? Why, that those in-
dividuals who had made the return made it improperly,
and thus, whether they were the persons who should make
the return of the panel. Sir Thomas Wilde then went over
the ground again of the laws and bye-laws, and then pro-
ceeded to argue that the challenge and the counter plea were
really in substance the same, and that the pleading,
therefore, was bad, and consequently inadmissible. A
plea to be admissible ought to be apt, con-
sistent, and perfect, and this was also the case
with respect to a counter plea. Bat in the present instance,
no new matter had been brought in the counter plea than
that which bad been allegedin the challenge; the objection,
therefore, fell to the ground, and his Learned Friend must,
he conceived, be compelled to recur to his original challenge.
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 IR 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 parties 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 net 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 RDCORDER—Am 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 SOLICITOZ-GENERAI 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 ♦ery 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. Wlum—We do not admit that they are unindiffer-
ent persons.
The Soucrron-GENERAL hoped his Learned Friend would
reserve his observations till his proper time for addressing
the Court. He apprehended that, although they did not in
as many words admit the unindifferency of those who made
the return, yet as they had not denied their disinterestedness
in the counter plea, he maintained that as the challenge im-
puted their unindifferency, and they were silent on that
head in their counter plea, they did in substance, and in
point of fact, admit the charge. It was invariably
the rule that where a plaintiff did not deny the
averments of a defendant, he did in fact admit them. The
counter plea in this case was what was called a confession
and avoidance; the plaintiff admitted the allegation of the
defendant, but he maintained that the proceeding was le-
galised by a custom from time immemorial. Now to that
answer he gave a complete and direct denial; he maintained
that they could not protect themselves by any such custom.
The question, therefore, that would have to be tried, if the
defendant's answer to the counter plea were allowed, would
be not the unindifferency of those who had made the return
or the jury, but the validity of the custom pleaded. And he
apprehended that if the defendant's answer to the counter plea
of the plaintiff were allowed, there would be no departure
And now, to come to the great question before them, he
would admit that his Learned Friend had a perfect right to
say "We have joined in the demurrer upon the question
presented in your replication ;" but his Learned Friend
had said that the replication was bad in point of law. He
(the Solicitor-General) would " remount" and impugn the
counter plea of the plaintiff as bad likewise, and he appre-
hended that he was entitled to the judgment of the Court.
He alleged that the return was made by indifferent persons,
viz., the aldermen and inquests of the wards; and he main-
tained that it could not be said in reply to his objection
to their unindifferency that the proceedings were in accord-
ance with an immemorial custom. He maintained that, by
the law of the land, no freeman of this city could act as a juror
on a case in which the City of London was interested. In sup-
portd of his argument, the Learned Gentleman then proceeded
to quote the case of Easthope v. Braddock, 3 Burrows, in
which the defendant was sued by the cryoraotnion
his
Chester for having (as in thishe city of carried
without
Lratringwgiirioutsiry ipt;r4chased of t the freedom of that city.
The defendant objected to all the proceedings,
which were precisely similar to those of the present suit, and
on the case being argued in the superior courts it was de-
cided that the corporation could not plead a custom in sup-
port of their illegalities.; and when it was urged that if the
sheriff and coroners of Chester could not return juries for the
trial of such cases, the reply of the judges was that that was
the fault of the corporation themselves; and so in the pre-
sent, if by the decision of the law, which prevented interested
parties participating in a case in which they were interested,
the Corporation of London could not return a jury for
the trial of these actions, it was entirely their own fault.
They made these cases triable in their own court, in which
their own laws prevailed, and to which the ward inquests
only were empowered to return the juries who would have to
try them. If they chose to make a law, giving themselves
a share in the penalties to be recovered and make them only
recoverable in their own courts, in which they themselves
appear to demand these penalties, they were indifferent,
and therefore incompetent to try cases of this nature. It was
objected that they were interested, and that no trial could be
made, because it would be tried by themselves, for it was only
by aldermen of the City of London that juries could be returned.
The RECORDER—It is an oldish law, made 240 years ago,
when Sir Henry Montague, afterwards Chief Justice of Eng-
land, was Recorder.
The SOLICITOR-GENZRAL said, he need not tell his Lord-
ship that time would not validate that which was bad. It
was not every one who had spirit, patriotism, or money, to
enter into a contest with the City of London on the subject.
It happened that the defendant, Mr. Sturt had, and therefore,
it was that his Lordship was now called on to decide the
question.

The RECORDER inquired how it happened, if all the
points had been decided, as stated by the Learned Solicitor-
General, that the Queen's Bench sent them invariably for
trial in that Court ?

The SOLICITOII:6EVERAL said the Court of Queen's Bench
had invariably and wisely abstained from giving decision on
the question on the motion for a procedenda, in order that it
might be put on record, so that the parties, if they thought
proper, might ultimately appeal to the highest courts in the
country—which parties, from their poverty or other causes,
had been unable to raise this queston. He should ask his
Lordship to decide this question.
The RECORDER said the City of London was different from
other corporate bodies in the country, because it had within
itself the power of administering the law, and the making of
laws, which had from time to time received the sanction of
Parliament. _ _ .

The SOLICITOR-GENERAL said he was one of those who
hoped that that transcendant power of the City of Lon-
don might last for ever; neither did he wish to see
its institutions placed on the same footing with other
cities in this country, nor to see it placed
ander the management of the Municipal Corporations Act.
But he wished to impress on his Lordship that if it was held
that the City of London, with all its power and privilege,
should retain the power and privilege of trying cases in a
court that involved the subversion of the very first prin-
ciplea of the administration of justice, he thought that

PRICE SD.

that power would not last long. It was true
those powers and privileges of the City of London
were greater than those of any other city in Europe, but he
apprehended that this was no argument at all in support of
the practice of trying their actions in their own courts,
and deciding penalties, and determining whether parties
were liable to pay them or not.
Sir T. WILDE then read the cases of Chamberlain v. Phil-
lipps, and Chamberlain v. Andray, which were similar to this
case, in which it was ruled by the Recorder that the
challenges against the array, on account of unindifferency,
must be set aside, because for two centuries similar cases had
been tried in this Court, and because the objection had often
been taken before, but had never prevailed. It was how-
ever, sometimes the practice to disfranchise witnesses who
were freemen, in order that they might give evidence as
non-freemen.

The SOLICITOR-GENERAL said the principle was as appli-
cable to juries as to witnesses, except that it was of tenfold
importance with respect to those constituting juries.
l'he RECORDER said that was saying that we ought not to
have the means of local redress.
The SOLICITOR-GENERAL said he did not mean that—he
meant that the penalties ought not to go into the pockets of
those who were the ministers of justice.
The RECORDER—Are you right in your distinction ?
The SOLICITOR-GENERAL—What was the distinction ?
Were not the citizens and aldermen, part of the city? And if
the penalty was recovered, would it not belong to the Cor-
poration?
The RECORDER asked if persons in qui tam actions did not
sue for themselves and the Crown? Into whose pocket did
the penalty go?
Sir T. WILDE—By law it will go to the Crown.
Tho SOLICITOR-GyoutaL—lt does not go into the privy
purse.
The RECORDER said the aldermen sat in that court in a
different capacity than when they sat in the Common COun-
cil, as they sat here in their executive capacity. The money ,
did not go to them, but was devoted to public purposes.
The SOLICITOR-GENERAL said they expended the money
at their discretion. He had so lately enjoyed the splendid
hospitality of the City of London, that he would say no more.
—(Laughter.) It went to the revenues of the City, but is
applied to purposes in their discretion.
The RECORDER—You are quite mistaken if you suppose
that the Corporation paid for the dinner of which you partook
the other day.—(Laughter.)
The SOLICITOR-GENERAL read the opinion of Lord Ellen-
borough, on a motion for a procedenda in a similar case,
which set forth that for two centuries and a half it had been
the custom to try questions of this kind before recorders in
all courts in the kingdom, and to remove them if necessary
to a higher court.
The RECORDER said his opinion showed that it was the
intention of Lord Ellenborough that the case might go to a
superior court, and be sent back again.
The SOLICITOR-GENERAL would be glad if his Lordship
would give such a decision, and also decide pro forma on
behalf of the demurrer.
The RECORDER said he was prepared to overrule the
challenge. He was quite prepared to put the case into the
fullest and best course of inquiry.
It was arranged that this should be put on the record, and
this exhausted the argument for the challenge, and it ac-
cordingly was about to proceed, when the Recorder stated
that he did not intend to overrule the case cited, to which the
Solicitor-General asserted that he understood it was done
provisionally.
The RESORDER suggested that twelve should be selected
who were not freemen.

The SOLICITOR-GEIfERAL inquired what course the counsel
for the City wished to pursue ; and it was ultimately ar-
ranged that the first juryman, Mr. Thomas Jenkins, should
be challenged, on the ground of being a freeman and there-
fore an interested party—the same objection to Mr. Henry
Fenton, Mr. Pyeman, Mr. Roberts, Mr. Edmonds, And others
of the jury, to the number of eleven, pro forma.

Thijuiy- were then sworn, and
Mr. HILL then opened the case, which was an allegation
against the defendant of acting as warehouseman, dealer,
and chapman under five counts, all differently putting the
matter, without being free of the City, thereby subjecting
himself to the penalty.of 51. for the offence.
Sir T. WILDE then proceeded to say that the apparent
count was that which had been just stated at the suit of the
Chamberlain of the City of London, but which was really
instituted to ascertain whether gentlemen carrying on busi-
ness in the City should be compelled to take up their free-
dom. The jury were aware that in all the affairs
of life the authorities were obliged to proceed on
general rules, which, it must be allowed, were not sometimes
applicable to the justice of each particular case. It was the
necessity of abiding by these general rules which had obliged
them to occupy so much time on the preceding day and on
this day in arguing the proper mode of abiding by them, and
ascertaining whether the panel had, in the first place, been
properly made; and, secondly, whether the gentlemen who
were brought to try this cause were properly brought there.
There was no intention whatever on the part of the counsel
on either side to allege that there was partiality whatever, either
in the jury or the several officials who had been instrumental
in bringing them together, but their object was to ascertain
whether, in a great question like this, a bye-law, passed many
years ago, and which might be perfectly just at the time it
was passed, was applicable to this case. If, consistently
with this bye-law the cause could have been tried in another
and a foreign court, much of this objection would have
been obviated, but such could not be, as this was the proper
court, in consequence of the judge being acquainted with
those facts which would elsewhere have to be proved in evi-
dence. The real question was, whether gentlemen of stand-
ing respectability and considerable wealth should partake of
all the advantages, legal, social, and otherwise, with-
out searing part of the expenses which were necessary to
secure these advantages. All knew that it was of the
utmost importance to the Corporation how it was consti-
tuted. In times of the utmost distress the voice of the
Corporation had been loudly raised, and constitutionally in-
fluential, and even in periods of great doubt and difliculty,
the Parliament itself had even flown to the City for refuge.
If they were to look to the lists of the nobility and of other
corporate bodies, they would find a large portion to have
sprung from the Corporation of Londom ; and if, then, the
wholesale dealers and other respectable residents in the City
were to refrain from taking up their freedom, a great advantage
would be lost to the Corporation. Then, if they were to look
to the several causes of the expenditure, they would see
another sufficient reason. The police, the criminal juris-
dictien, the watching and the lighting of the City, were ad-
vantages which were partaken of by the non-freemen as well
as by the freemen, but the bulk of the expenses were borne
by the City. Now was it fair that these benefits should be
enjoyed by parties who did not contribute to the expense?
To constitute such a principle would be altogther contrary
to justice. He was aware that it would be alleged that the
wholesale dealers were entitled to be exempt from these
expenses. But the ground for such an allegation was
altogether untenable, and although he was not going
to make a parade of ancient learning, yet thus much he
might advance, that in the olden times, when the trade of
this City first arose, every. individual enjoying the benefit
of its commerce, entered into what was called a " frank
pledge," by which they were bound to support each other
and bear their share of the expenses. The usages of that day
had passed away, but the thing itself remained; trade was
still carried on ; common advantages were enjoyed, and
common expenses had to be borne ; and it was not because
there was now a class called wholesale dealers as well
as retail dealers, that the principle was in any way negatived.
New forms had arisen, upon which it would appear that by
the ancient law no foreigner, that was to say, a person who
had not purchased the freedom, could sell goods within the
limits of the City, because it was supposed that the interme-
diate profit of the middle-man, who bought and sold, would
prejudice the trade of the City of London. A variety of re-
solutions were consequently imposed to prevent the in-
jury of the City trade. He could Rot acsertain
at what period those resolutions were created. The
word " wholesale" at that time meant a man who
brought his goods to the City and sold to the
citizens in the bulk ; who, in fact, sold his bale, box, or
parcel, without opening them. That word had been main-
tained to apply to such a gentleman as brought goods from
Manchester, Leeds, and Bradford, &c., and sold his bales,
&c., entire, but such as opened their boxes or bales, and sold
the contents in parts, were said to be retail traders. As soon
as the bulk was broken the goods were said to be
sold by retail. The wholesale trader was compelled by the
bye-law to contribute two portions towards the preservation
of peace, &c., by purchasing his freedom. The object of such
a law was beyond all doubt that all who receiveg
the benefit of the government of the City, an
whose interests were protected by that bye-law, should
fairly contribute their proper share of the expense of carry-
ing on the government of the City. In ancient times these
corporations were of the greatest importance. They were
most essential to the preservation of civil and political
liberty. To the existence of those corporate bodies
it was that we owed one of our most valuable
privileges. They constituted a bulwark for the pro-
tection of our liberties. The history of the Corporation of
London was lost in its antiquity. Nobody could tell when
the Corporation of London did not exist. It had
,been found to exist in the earliest period to which
the mind could revert, and no doubt was
cre-
ated either by the Crown or by the Parliameiit—by whatever name, whether Wittengernote, or by any other
name, or probably it existed even before the creation of the
Parliament, as it is at present constituted. Its antiquity
had been acknowledged and recognised from all
time immemorial ; it was admitted even by Acts
of Parliament. What was the date of the bye-law
for the infringemnt of which the defendant had been now
brought before the Court nobody knew. If it were impeached,
they might as well impeach the most valuable rights passed
by these corporate bodies—they might, in fact, as well im-
peach the Parliament itself. They found the Corporation of
London had power to enact such bye-laws as were found ne-
cessary for the government of the City, and it would be per-
fectly useless to talk of their ancient customs if they had not
i
the power to make such bye-laws. The bye-law n.:ques-
tion provided for several things—it prohibited the show-
ing and exhibiting of goods for sale, ter retail, by a party who
was not a freeman of the City. The bye-law began by recit-
ing, that whereas by ancient charters, customs, and fran-
chises, and liberties of the City of London, and in
conformity with sundry Acts of Parliament, any
person not being a freeman of the City of London should
not be allowed to sell or put to sale, as wares or
merchandise within the City, by retail, under a penalty of 51.
for every day he should presume to carry on his trade. The
allegations were to the effect that the defendant,
not being a freeman, did use a certain trade
within the City of London, that was to say, the trade
of a warehouseman, dealer, or chapman. The defendant,
who was highly respectable, and carried on a most respect-
able trade, admitted the charge, and he (Sir Thomas
Wilde) had no idea as to the defence which would be set up
by his Learned Friend.
The SOLICITOR-GENERAL wished to know from his Learned
Friend whether he intended to proceed with all the counts? _
Sir T. WILDE said he did, but it was not intended to en
force any more than one penalty.
The SOLICITOR-GENERAL said that he should like to have
the assurance set forth ou the record.
Sir T. WILDE--I will do it, is not 11
The defendant at a
if the defendant is alarmed.
The SOLICITOR GENERAL—
alarmed.
Sir T. WILDE continued by reading all the various counts,
remarking that, as his Learned Friend would not be absent
if a loophole presented itself—( hte
if—(Laugr)—he was deter-
mined to proceed on all the counts, but there was no inten-
tion to enforce more than a single penalty of five pounds.
The fifth count stated that he occupied a warehouse iii the
City of London, and there exposed goods for sale. These
were the several charges. It was agreed between the parties
that the defendant carried on the business of a warehouse-
man at No. 90 and 91, Wood-street, and that he sold cotton,
line; Tc 9911% And 9thez manttfuturecl goods, which war

purchased from manufacturers in Manchester, Sceifidictii-ct
other places; that he received them in bales, which were
opened and exposed to parties wishing to purchase them;
that these goods were purchased on the usual terms—
namely, a credit of two months, or a discount of two-and-a-
half per cent. for cash. These were the charges, and it was
specially provided by the bye-laws of the Common Council,
that persons came within the category of " freemen," if they_
carried on any "art, trade, occupation, handicraft, or mystery,
in the City of London. Now, he maintained, that this was
clearly proved, because he exposed his bales for sale, and
employed clerks and others to assist him in his business.
These provisions were made in order that parties, who carried
on retail trades, such as he contended was carried on by the
defendant, might contribute their fair proportion of the
charges of the City. " Botchers, tailors, and cobblers,'
were excluded, because they did not purchase or
sell by-retail; forinstance, a tailor sold you a coat, but did not
sell the bales of cloth from which it was made. This was done
that a certain class of persons, who at the passing of the
law were not, perhaps, in a fit condition to take up their
freedom, might be excluded from the responsibility. Now
what was the difference between the dealings of a mercer in
Cheapside, who sold a piece of cloth, and a warehouseman
next door, who sold cloth in a bulk, and who would not
sell it in pieces ? Practically there was no difference.
Besides, their property was guarded by the police as well as
the property of the retail dealer; and why should they not
pay their share of the expense of supporting the police, and
to the other expenses of governing the City? There was no
reason why the retail dealer should contribute his share of
those expenses, and why the wholesole dealer should be
exempt, for the one just as much kept a shop as the other.
He therefore submitted to his Lordship and the jury that the
defendant came within the meaning of the clause, that he
could be compelled to take up his freedom, and take his
share in the various offices which freemen were called upon
to ffil,and that the plaiatiff was entitled to a verdict on each
of the counts. _ _ _

The SOLICITOR-GENERAL then proceeded to address the
jsetrheehdnetfetnwdeantitn.
es
tHi
een
safgerre et dh
thew rt hy.ht s o
dLeoeri
dde-
uhri yp
ot
hnabt ethhaelrfe owf
.—mrfi srt
—first,
within theoftheerthetrade fin
warehouseman,
in theeman,a hyseae.rriine:r;
lonaubdy,
secondly, whether the trade or occupation of a warehouse-
man, as described in the admission handed in, was a
trade or occupation within the meaning of the 3d
bye-law, which set forth that wholesale traders
should be exempted from taking up their freedom.
Before entering on those questions he should feel it neces-
sary to enter upon that topic which had already occupied so
much time, and to which his Learned Friend had adverted.
It was scarcely necessary to say, that he had not the slightest
intention of imputing improper bias to the jury adjudicating
upon it, for the Learned Judge was aware, that
he believed that the
of an improper bias as the :11.1e1rneclvdu'Isd ase little capable
came here to try only whether a trader
must question the assertion ofg himself.carry Bonuthhiel
his Learned Friend that they
business in the City of London before talon carcry ld
up his
for they came there for another purpose—that-of freedom,aseertsus
ing whether such a system as that which was sought to
be introduced into the adjudication of this
of
,
was not recognised by any other portion of the
realm of England. It was the boast of this country—and
long might it be so—that no person was allowed to interfere
with the administration of justice who was in the slightest
degree interested in the result of any particular case; and he
did not hesitate to say that the bye-laws under which this
case was brought was a blot upon the whole administration of
the justice of the country. By the enactment of this rule the
corporation of the City of London levied, without the
authority of any other law than that which they them-
selves had instituted, a penalty upon any of the Queen's
subjects who might come into this City to carry on their
business, and this penalty was to be levied for their ewn
particular benefit. It was alien to the law of Eng-
land that any person should interfere in his own
case, and yet here did the Corporation of London
come into their own court to try this case before their own
judge, and, by the instrumentality of a jury impanelled from
among their own body, for the purpose of putting money into
their own pockets. If such a principle were to be admitted,
there would at once be an end to the purity of trial by jury.
Supposing the case were to be their own—supposing it were
an exception to a bill of exchange, how would they
like to have the cause tried by a set of individuals who were
directly interested in a verdict against them? It mattered
little what might be the sum, for it was of no conse-
quence whether it were 51., 5001., or 500,0001 ; for if
the principle were once admitted, it broke through
every principle of the law of England. He had already
had occasion to observe that the Corporation of the City
of London were placed in a peculiar position, and he wished,
with every sincerity, that the Corporation might long con-
tinue to possess those immunities and privileges which it had
so long enjoyed. But if the effect of those privileges was to
infringe the grand principle of the law of England, by the
existence of such a bye-law as this, he trusted that
it would not be long before it was placed tinder
the same regulations as other parts of the kingdom.
The Corporation of the City of London was placed in a
different position from every other corporation, inasmuch
as the Corporation was not compelled to apply the funds,
into which it came into possession, to, for instance, the im-
provement of the town, but might be applied to any
purpose, whether of a dinner or otherwise, which in its ca-
price it might choose. In making these observations he was
anxious to show that he did not in the slightest degree
impute partiality to them, because he was anxious to put
that upon the record which would unquestionably arise
before a superior court, and which was certain to be raised
if it came into consideration before the House of Lords. He
would now turn to the questions of which he had spoken ;
and the first was the charge of keeping a warehouse.
It should be remembered that in all Acts involving penalties the
clauses were to be construed strictly, and this he begged
particularly to put before his Lordship. The Learned Gen-
tleman then went into a definition of the term " a retail
dealer," which he described as intimating a person who kept
a shop where goods in small quantities were sold, and stated
that the word cam e from the Italian word ref tinier, to sell by cut,
or to sell and cut again, as was the case where a yard of muslin or
woollen cloth or any other small portion of goods was sold. This
was expressly explained by the statutes themselves, the differ-
ence between retail and wholesale dealers having been ex-
pressly recognised, and cited the 2d Richard 11.,
chap. 1, in which the difference was expressly explained.
That statute provided that all parties might freely sell in the
gross all sorts of goods in the City of London, as well as all
other ;cities and towns in the realm of England, but not by
retail. The statute clearly said, " You may sell by the bale,
you may sell by the piece, but you shall not sell by retail."
Why, if there were any distinctness in legislative language,
it was in the very statute which to had quoted. If the Legis-
lature were called upon to declare in express and clear
terms what was the line of demarcation between
dealing by the gross and by retail, it would be impossible for
them to use clearer and more distinct language than was
used in the statute of Richard 11. He had showed that the
defendant imported or received manufactured goods from
Manchester and other places, and sold them in bales entire.
There was no cutting or sub-division of his goods within the
terms of the bye-law. They found by the statute of Richard
11., cap. 1, that all parties, without any let or hinderance,
were permitted to sell goods by the entire piece. The bye-law
in question was said to be of very great ;antiquity,
being made two hundred and forty years ago, it must have
been founded on a custom, which custom, to be good for any
thing, must be from time immemorial. But we had the
statute of Richard, which declared expressly that no such
bye-law should have force either in the City of London or
an other corporate town or city in England.
The RECORDER—There are other statutes in reference to
this question.
The SOLICITOR-GENERAL said there rare, but none bearing
so directly upon the question:as that which he had quoted.
The case of Waggoner r. Fish, which was generally called
the London case, might also be quoted. It appeared from
Barnewall's report of the case, page 287, that the Recorder
of London, in giving his judgment, said it was clear
that a merchant who sold his goods entire was not compelled
to become a freeman of the City for the purpose of carrying on
his trade, but that those who sold by the yard or by retail
were liable to the operations of the bye-laws ; and, therefore,
that being so, there was no room left for argument in this
case.
The RECORDER—Then you contend that you have brought
yourself within the description of the Act of Parliament.
The SOLICITOR-GENERAL—No, my Lord, I say they have
not brought us within the description of their bye-law;
and I submit to your Lordship it is incumbent on the plaintiff
to do so if he is to succeed in his prosecution.
The RECOIDEE—He shows that the defendant sells by
retail.

1 The SOLICITOR-GENERAL—Yes; it is not for me to enter
into the variety of the illustrations, and to consider whether
a pair of scissors, or a hat, or a knife, or any other article—
The RECORDER—No; you have merely to show that your
client sells within the description of the statute so as to en-
title him to the privilege it confers.
The SOLICITOR-GENERAL did not wish to impose upon hie
they
referringheyalreadyhad
bpthyeoer
perfectly
cahatwel
yr,
by Act? 0 e Which
Learned Friend the duty of again addressing his
e-law which
aware,h e Lordship
contended,but hor
cr.:: - -
doubtt
h
the jurrdshya—(Laughter)
sowhiousugL°lhdt to impose a penalty, which
must be construed like all other penal enactments in the
most strict sense, and he submitted that it was incumbent
on the plaintiff, who sought to exact the penalty from the
defendant to show clearly and beyond all reasonable doubt,
to bring him within the meaning of that bye-law.
The RECORDER observed, that it appeared that the Solici-
tor-General was not quite so ignorant upon the merits of the
question and the laws of the Court as he at first professed to
be.—(Laughter.)T
The SOLICITOR-GENERAL replied, that he
happy to say that his Learned
Friend had bee:
kind enough to furnish him with information upon
the practice and laws of the Court, for which he was greatly
indebted to him. The plaintiff had given no evidence
whatever of what retail trading was at the time when this
bye-law was made, or what was the definition of wholesale
or retail trading at that particular time. They could there-
fore only judge by the light of their own reason, and he had
already referred his Lordship to the statement of Richard,
which was made pari materiel with this bye-law. It appeared
that, although the plaintiff sought to recover penalties from
the defendant, he at the same time admitted that in payment
of his goods he received acceptances for four months, or
cash with an allowance of two-and-a-half per cent.
Now, was that symptomatic of retail dealing ?
The mode of paying, namely by acceptances of four months,
or 2% discount for cash, showed that it was dealing in gross,
and came within the category of wholesale dealing. There-
fore he held that the jury must decide in favour of the de-
fendant on the two last counts, those only which referred to
retail dealings. The meaning of the provisions with respect
to retail dealings was simply this, that no one should
expose goods for sale by retail. It was clear
that the defendant did not expose goods for
sale, and if the assumption of his being a retail dealer was
ihveel
ul
d held to
be
ee gboroe du
brought
the
within
jury, solicitors,the category bankers,an be liable to
and others,
hold the offices which were assignedb to freemen.
After referring to a case decided by the Court of
d n that aperson
Queen's Bench, namely, Clarke v. Denton, in which it was
maintained by Lord Tenter e . was not a retail
Richard
rtdh e
11.
Ib.y bye law a: a
m ofetnhdee
amended
in Commont
he
dealer unless he sold his goods by piece, he proceeded to say
that the defendant did not come within the definition of li
as
sAcstet
of
frtßh
seventh year of the reign of Henry 'IV. and
•
amended in the ninth
&t:nilcidl.ealTerh,e
year of the reign ' again
of the same
sovereign. The amendment of the law made in the 9th of
Henry IV. had not been printed, but
was
included in Lord
Coke's account of Waggoner's c
case. The 7th of Henry IV.
merely legalised the selling and buying of goods, and clearly
legalised the sale in gross, so that if it were now in, force deal-
ings of that character would be perfectly legal in a non-free-
man, and could not be repealed without the intervention
of another Act of Parliament. Then the subsequent enact-
ments left all dealings in gross just as they were, except sel-
ling in gross by non-freemen to non-freemen to sell again
was forbidden, and that was now the law within the City of
London, but within which he held the defendant did not come.
Then comes the subject of the bye-laws there being no Act
repealing them ; the effect of which was, that those two
Acts of Parliament clearly showed that it was legal for mer-
chant-dealers to sell to merchant-strangers, but not to sell
again. They denied the power of the bye-laws to defraud
the Act, and the question was whether they should put it in
the limited or in the enlarged sense. If in the former, the
law was conformable with the statutes, but in the other