The Sun.
London, England, 1834-11-05 00:00:00

DEWAR V. PURDAY.

The ATTORNEY-GENERAL moved for a rule to show
cause why the nonsuit that had been entered in this case
should not be set aside, and a new trial granted. He said
that this nonsuit had been entered under rather extraordi-
nary circumstances. This was an action to recover da-
mages for pirating a song, and the music of the song. The
plaintiff was the original composer of that music. Sir J.
Scarlett, who appeared for the defendant at the trial, at
first objected that the evidence was not sufficient to support
the action, and that a nonsuit ought to be entered. Lord
Denman, however, before whom the case was tried, was of
opinion that the case must go to the Jury, and no point was
reserved, nor any leave to move given.

Lord DENMAN—I beg pardon, Mr. Attorney, I took a
note of the objection, and have so entered it.
The ATTORNEY-GENERAL continued—Nothing at all
turned upon that. The case proceeded. The question
was, whether the music was an original composition ? The
plaintiff proved by Sir George Smart, and other distin-
guished musicians, that it was an original composition,
and a meritorious one. On the other hand, the defendant
called witnesses to prove that it was not original, and that
the notes were the same as were to be found in other mu-
sical compositions. The Jury retired about four
ecleck in the afternoon, and when the Court met
the next morning he was surpiised to learn that they
had been locked up all night. They were called into
Court, and said that they had all agreed to find for the
plaintiff except one, and that he must have some motive
for it, which he (the Attorney-General) must confess was
somewhat of an indecent observation. They were desired
to return to their chamber. While the Jury were in Court
he was in Court, and so was his Learned Friend (Mr.
Thessiger), - who was Junior Counsel for the plaintiff.
When they were desired to withdraw he went to the House
of Lords, where he had business ; and Mr. Thessigcr went
to the Court of Common Pleas, where he was retained in a
cause then in the course of trial. He was very much sur-
prised to be told, not long afterwards, that Lord Denman
had directed that the plaintiff should be nonsuited. He
came into Court, and, with a warmth which it was natural
lie should feel, but for which, if it was in the least degree
improper, he most sincerely apologised, he expressed his
surprise at what had been done, and said that there were
considerable doubts as to the power of the Lord Chief Jus-
tice to direct a nonsuit under such circumstances. His
Lordship answered that the objection was too late ; the non-
suit was then recorded. He now moved to set aside that
nonsuit. With the greatest possible respect for his Lordship,
he must say that it seemed to him there was no power
whatever on the part of the Judge to nonsuit the plaintiff.
The rule was, that the plaintiff might be called when the
Jury had agreed to give their verdict, or while the evidence
was proceeding, and if the plaintiff did not then appear, he
might be nonsuited ; but he might appear, and if he did ho
could not be nonsuited. The Judge had not the power to
nonsuit him ; and certainly not when the Jury had with-
drawn, and were considering their verdict ; for then the
plaintiff was not obliged to be in Court, and was not
con-
sidered to be there ; he was only liable to be called into
Court when the Jury had agreed upon their verdict, and
were ready to pronounce it ; and then it was required that
he should be in Court, because, according to the old prac-
tice, lie was liable to be fined for his false clamour if the
verdict should be against him. The plaintiff, too, was
liable to be called at the instance of the defendant : and
that was another ground of objection in this Ran I fpf thil
nPPS4it "3 'lterPd here FT rim viol of the I,carTl4
judge, and without the defendant haying celled for it.
what he had stated as the law, was to be found 4 rages
867 and 808 of Tidd's Practico i and the for to Lo ob-

served was sufficiently proved by the form in Tidd's Ap-
pendix. If Lord Denman had directed the Jury to
discharged, he could not but have consented to it, after so
[ much time had elapsed without their being able to come to
an agreement ; and, indeed, his Lordship might have
directed it without the consent of either party. In the
same manner he (the Attorney-General) should have been
willing to refer the case ; but when eleven out of twelve
men were in his favour it was not to be expected that he
should submit to be nonsuited.
The COURT hardly thought that the ATTORNEY-GENE-
RAL was at liberty to refer to such a matter.
The ATTORNEY-GENERAL thought he was at liberty to
do so, because the fact was stated in open Court. He
then repeated his former arguments, and contended that he
was entitled to the rule.
LORD DENMAN—You are not exactly inforMed, Mr.
Attorney-General, as to all the facts, and I will now state
how the matter occurred, during a period of the time
you were absent from Court. The question was whether
the plaintiff had made out his title to the music of the
song as the original composer of the air. I confess that
doubted whether he had done so ; and when Sir J. Scar.
lett asked for a nonsuit on the ground that there was no
evidence, it appeared to me that there was some evidence
which it was rather discreet than absolutely proper to submit
to the notice of the Jury. I was, in fact, unwilling to with-
draw it from their notice. When I came into Court in the
morning, they applied to me to be discharged. I then told
them that they must endeavour to agree in their verdict,
and I sent them back to re-consider the case. After that
they sent again, and said that they were not at all
likely to agree. I desired an inquiry to be made for the
Counsel in the case. I then desired the Jury to come into
Court ; and the Counsel not being present, though they had
been inquired for, I thought it was right to act on the im-
pression which I had had in a former stage of the case,
namely, that there was not sufficient evidence of authorship.
I thought there was the least inconvenience in acting upon
the impression that in my view there was no sufficient evi-
dence to go to the Jury, feeling that in consequence of the
absence of Counsel there was nothing at all for me to do
but to act upon my former impression.
The ATTORNEY-GENERAL said that he had no doubt
whatever that all his Lordship had stated as to what had
occurred was most perfectly accurate, but even on that
statement he submitted he was entitled to his rnle.
The Court granted the rule.
Just as the Court was about to rise, a female rose and
begged to make an inquiry of Lord Denman as to a peti-
tion she had given him to present to either the House of
Lords or the Commons in 1831, and to request him, if he
had not presented it, to return it to her. She was informed
that that was not the place for the discussion of such
matters.