The Sun.
London, England, 1844-11-16 00:00:00

VICE-CHANCELLOR'S COURT, Nov, 15.

The Vice-Chancellor of England was occupied the
whole morning with unopposed petitions and short causes.
(Before Sir J. WIGRAM.)
LUND V. BLANSHARD AND OTHERS.

His HoNova gave his decision this morning o tvo
demurrers, put in to the plaintiff's amended bill by the
defendants, who are members of the Yorkshire Agricul-
tural and Commercial Banking Company, and the Lon-
don and Westminster Bank. The main arguments in
the case had been heard, but the Court required a
further hearing on the only two points raised by the
demurrers' misjoinder and multifariousness; and ➢ir. K.
Parker and Mr. Hetherington have argued on the part
of the plaintiffs against the demurrers, on the grounds
above stated. The plaintiffs are shareholders in the
Yorkshire Banking Company, the defendants were con-
nected with the management and direction, and the Lon-
don and Westminster Bank had been appointed the
London agents of the Company.
His HONOUR overruled both demurrers.

Sir K. Bruce did not sit to-day, his Court being en-
gaged for the business usually transacted in the Sea-
'ions-house.

COURT OF QUEEN'S BENCH, Nov. 15.
(Sittings in Banco.)
HOWARD V. GOSSETT.

Tlis was an action brought by Mr. Howard, an
attAney, of Norfolk-street, in the Strand, to recover
damages from Sir William Gossett, the Sergeant-at-
Arms to the House of Commons, for an alleged unlawful
arrest and false imprisonment. The defendant admitted
all the facts laid in the declaration, but pleaded that he
was justified in what he had done, by a warrant of the
House of Commons, for the arrest and imprisonment of
the plaintiff. To this the plaintiff demurred, and the
demurrer came on for argument this morning. The
case arose out of the proceedings in the well-known case
of Stockdale v. Hansard. The plaintiff, as attorney for
Stockdale, had conducted the proceedings in that case,
and after Stockdale had been arrested and imprisoned
for contempt of the House of Commons, the plaintiff,
his attorney, was also summoned to the bar of the House,
and shortly afterwards arrested and imprisoned by order
of the House, and it was to recover compensation for
this arrest and imprisonment that he had brought this
action.

Mr. KELLY, in support of the demurrer, contended
that the warrant set forth in the pleadings could not
justify the arrest and detention of the plaintiff, inasmuch
as it set forth no cause of offence whatever, but simply
directed the arrest and detention of the plaintiff without
specifying any cause of imprisonment, or naming any
time at which such imprisonment should cease. Lord
Coke had laid it down in his Institutes, that every mitti-
mus must show good cause of arrest, in order that the
prisoner might obtain his relief by habeas corpus if the
cause set forth should be wrong. If this warrant, which
specified no offence, should be held to be a good warrant,
and if, on an application for habeas corpus, their Lord-
ships were to remand unon such a warrant, it would im-
port that the House of Commons might arrest any sub-
ject of the realm without any offence or any charge,
which would be a violation of Magna Charts and
of the Petition of eight, in both of which it
VW laid down that no freeman should be imprisoned
or detained without cause shown, whereby he is
imprisoned and detained. It was true that in the bad
times of the James's and the Charles's, when the Courts
of Justice were themselves the greatest violators of the
law, warrants were issued for the apprehension of per-
sons without specifying the cause of offence ; but Sir
Edward Coke, before those times, had expressly laid
down the law to the contrary ; and since _the days of
James II , the practice had been universally condemned,
and, in good times, the law, as laid down by Lord Coke,
had always been considered as the current law. The
warrant was also bad, for want of a lawful conclusion.
It simply ordered the arrest of the plaintiff without
stating where he was to be brought, where he was to be
imprisoned, what time he was to be imprisoned, or how
he was to be delivered. There was no indication of his
offence, neither was it stated what he was to do to purge
himself of his offence. This was directly contrary to the
law as /aid down by Lord Coke, who laid it down, that
every warrant ought to show a lawful cause of imprison•
ment, and' ought to have a lawful conclusion, such as,
that the prisoner should be detained until delivered by
due course of ler. The defendant was not told by the
warrant to bring' the plaintiff before the House,
but he was to take him into custody, and to
keep him in custolY t it would appear until
they should choose to sarder what should be done
with him. Now this was contrary to Magna Charta,
and the warrant was therefore void. He now came to
what was the practice in regard td eontempts, and he
believed it would be admitted that it was only for con-
tempt that the House of Commons posse,ssed the nower
of imprisonment. Now the practice of All tribunes
having the power of attaintiag for contempt, was to call
upon the party a-cused to answer; if he refused, or
gave no sufficient answer, he was adjudged guilty of con-
tempt, and the warrant authorising his imprisonment in-
variably set forth that he was committed for contempt.
Here it was not stated that he was committed for con-
tempt, and he would ask on what principle the House
of Commons was to depart from a practice which was
binding on all other tribunals committing for con-
tempt. No contempt whatever appeared upon the face
of this warrant, and the Court could not presume that
the committal was for contempt. If the Court were to
do so the liberty of every subject would be at the mercy
of the House of Commons. He submitted that no au-
thority could be found in which any warrant had been
held lawful, which did not set forth the offence for which
the party was to bearrested. With regard to the cases
of imprisonment for contempt, he would merely refer
the Court to the arguments of Sir J. Campbell in the
case of Stockdale and Hansard, where everyone of these
cases had been collected. He did not deny the right of
the House of Commons to imprison for contempt, but
he did contend that they had no right to imprison for any
other cause, or for no cause at all, or by virtue of a war-
rant showing no cause. The next question was, sup-
posing the warrant to be bad could the defendant fall
back upon the averments in the plea in aid of the war-
rant. He apprehended the:defendant could not. Having
set forth the warrant as his justification for the arrest,
he could not depart from it, and if that warrant were
bad he could not show aliunde that there was good cause
to justify the arrest. If a Sheriff's officer arrested a
man upon a bad writ of capias it would be no justifies
tion of that arrest to show that the bad writ was founded
upon a good judgment.
Mr. Justice CoLzeinar.--In an action against a magi •
sti ate for false imprisonment, if the warrant is bad, but
he sets forth that the conviction is good, would not that
be sufficient, supposing he only pleaded the general iwsue?
Mr. KELLY submitted that such a case could not apply
to an action brought against the officer executing the
warrant, although it might if they were suing the House
of Commons, or the Speaker ; but he apprehended that,
as the action would be for the imprisonment, and not for
the conviction, the setting forth the conviction- would not
be a sufficient justification.

Mr. JusticeCOLERIDGE —I do not say so; but is it
not a general notion —I do not say whether right or
wrong— but is it not a general notion that a bad warrant
may be aided by a good conviction ?
Mr. KELLY apprehended not. The party sought his
remedy against the party arresting him for the impri•
soument, and not for the conviction. If a magistrate
possessed the power on conviction by parole directions
without the intervention of any written document, of
ordering imprisonment, then the conviction might justify
such imprisonment ; but if it was necessary that the
warrant should be made in writing, and such warrant
should be found to be bad, then the party would have
beeu illegally committed, and would be entitled to his
remedy. Now, what were the averments in the third
and fourth pleas? They were—that the plaintiff, having
been summ, med. to appear at the bar of the House' of
Commons, failed to attend, and that thereupon an
order was made that he should be brought to the
bar. Now this was not an arrest for contempt
It was an attempt on mesne process to compel a
person to give evidence--a power possessed by no tri-
bunal in the country. He submitted that'the House of
Commons had no power to arrest any of the Queen's
subjects on mesne process. They bad a right to sum-
mon a person to their bar to
give evidence, and on his
refusal to attend, they had a right to adjudge him in con-
tempt, and having so found him guilty of contempt they
bad a right to commit him. But they had no power to
commit him for anything but contempt, least of all had
they the power to commit on mesne process to compel a
party to give evidence. He would not go into the pre-
cec'ents furnished by the House of Commons, for pre-
cedents might be found there for every crime and every
folly, from the taking off the head of a king to the com-
mittal of a person for serving a notice in a case of eject-
ment on a servant's servant of a Member of the House ;
but there were no precedents to be found in cases argued
and decided in courts of justice showing that the
House of Commons possessed the power of arresting on
mesne process, and it was not a sufficient justification for
them to assume that they possessed suoh a right, and he
relied upon the judgment in the case of Stockdale v.
Hansard in support of that position. The possession of
such a privilege must be distinctly averred, and could not
be taken by intendment, as was done in these pleas. The
plea ought to have distinctly shown that the plaintiff had
been served with the summons to attend—the averment
that be had had due notice was not sufficient. i
r. Justice COLERIDGE—Do
ought to have had
pe _ you contend that he
u.. KELLY
contendedronal service ?
that the plea ought to have
shown that he hadhad
therefore submitted thautch service as was usual. He
bad,the warrant which was relied
on as a justification was ailiasn:!uch as it set forth
no cause of arrest, neither d
to the imprisonment. But le (131falve any
directions as
in etrtdant could not fall
back upon the averments
bifaekthe
eeCopurleatstsbronladid hold
defective warrant ; but
pon
that he could fall
aver-
ments, then . he submitted that the Court°
not by its decision hold for the first time that the House
of of Commons possessed a power of imprisonment like that
now sought to be claimed, and would not recognise by
giving it their judicial sanction the existence of a power

which had never before been claimed by any court of
justice._

I- The SOLICITOR- GENERAL felt the deepest concern in
rising to defend the privileges of the House of Commons,
the very existence of which was directly struck at by his
Learned Friend's argument. The existence of these privi-
leges had always been admitted. It was admitted that the
recognition and the exercise of them was essentially neces-
sary to the House for the performance of its important
functions, and it appeared that there was now a desire
to strike down these privileges of the House one by one,
by appealing to the judicial tribunals of the country.
He trusted, however, they would find that protection
in this Court, which would not render it un-
necessary for them to resort to self-protection.
He trusted he should never forget the respect
that respect, he insisted in the strongest manner
on the existence of those privileges of the
House of Commons. Now, in this case, the first
plea alleged, that certain matters and things were then
in debate before the House of Commons, concerning
which the House considered it necessary that the
plaintiff should be examined at their bar, and that the
House, in pursuance of its ancient usages and privileges,
ordered the said plaintiff to attend the House forthwith,
of which order the plaintiff had had due notice ; and
that the said plaintiff did not attend, but wilfully, con •
temptuously, and without reasonable cause or excuse,
refused to obey such order, whereupon in order to compel
the attendance of the said plaintiff, the House, accord-
ing to its ancient usages and privileges,
and in accordance with the law and custom
of Parliament, ordered that the plaintiff should be
brought before the House in the custody of the Sergeant,
and that the Speaker should issue his warrant accord-
ingly; and that the Speaker, in pursuance of that order,
and in accordance with the ancient usages and privi-
leges of Parliament, had issued his warrant, reciting the
order of the House, and that upon that warrant the de-
fendant had taken the plaintiff into custody.
Lord DENMAN—The order sets forth that he shall be
brought to the bar of the House of Commons.
The SOLICITOR-GENERAL was much obliged to his
Lordship—it did so. The second plea was the same as
the first, and the third plea alleged that the arrest was
justified by the contempt of their ancient usages
and privileges of which the plaintiff had been guilty, and
concluded in the same manner as the first. To these
pleas the plaintiff had demurred—admitting that the
summons had been issued—admitting that he had bad
notice—admitting that he had contemptuously, and
without excuse, neglected to attend—admitting that all
that had been done had been done by the House of Com-
mons in pursuance of its ancient usages and privileges,
but affirming that these pleas were not a suffi-
cient answer to the action, inasmuch as the
order did not set forth the cause why he was
to be examined, or show why he had not a right
to conceal himself, nor on what occasion he had
been guilty of contempt; and the Court was called upon
to decide that acts done in pursuance of the admitted
ancient usages and privileges of the House of Commons,
and according to the custom of Parliament, were illegal,
and that in the most degrading, offensive, and contemp-
tuous manner that could be imagined. The first point on
which he insisted was, that the defendant being an officer
of the House of Commons was protected by the order of
that House directing him to do to the plaintiff the thing
complained of, and that such order of itself, and without
more, was an answer to the action. The latter part of his
proposition undoubtedly led to the consideration of the cor-
rectness of the judgment of the Court in the case of Stock-
dale v. Hansard ; and notwithstanding all the respect he
bore to their Lordships, he must be permitted to say that he
was not to be taken as being precluded by that judgment
from firmly protesting against the decision in that case,
in order that if hereafter that judgment should be called
in question, his acquiescence on the part of the House of
Commons might not be quoted in support of it. But this
case essentially differed from that of Stockdale v. Hansard.
There was no allegation in that case that that which
was done had been done in pursuance of the ancient
usages and privileges of the House, which was alleged in
the present case, and which was admitted by the de-
murrer ; and he would call their Lordships' attention to
the judgment of each of their Lordships in the case of
Stoekdale v. Hansard in support of this view. It was
impossible for their Lordships to avoid giving
judgment in favour of defendant without deciding
that the House of Commons bad no legal right
to exercise their admitted powers and privileges.
In giving judgment in the case of Stockdale v. Hansard,
their Lordships had admitted that they hail no right to
, question the exercise of those rights and privileges
which the House of Commons was acknowledged to pos-
sess. The House of Commons had unquestionably pos-
sessed those different privileges and powers, and had
exercised them from the earliest period without question,
and they were absolutely necessary for the due per-
formance of its functions. The powers of the House 01
Commons were different from those of courts of justice.
Courts of justice could not originate an inquiry. The
House of Commons could. Lord Coke called them the
great inquisitors of the realm, and referred to their own
journals—to those journals, the authority of which was
denied by Mr. Kelly, from a knowledge of those privi-
leges, and of the manner in which they were exercised.
In the judgment in the case of Stockdale v. Hansard
there was the strongest recognition of those very powers.
In a case of conspiracy for an invasion, which might be-
come the subject of inquiry before the House of Com-
mons, were they to give notice to a person who might
perhaps be implicated in that conspiracy of the subject
on which they wished to examine him, giving him in fact
notice to abscond ? It was very doubtful whether a ma-
gistrate did not possess the power of compelling the at-
tendance of witnesses.

Lord DENMAN—What is the case with regard to
corom rs ?

The SOLICITOR-GENERAL—It was very doubtful whe-
ther a coroner did not possess the power of issuing his
warrant to compel the attendance of a witness, but the
Ho,:_•se of Commons had always exercised the power.
Lord PENMAN—But I should like to hear you say
a little m,,re of the power of compelling the attend-
ance of witnes..‘e6• possessed by courts of common law.
Suppose I was siCilig here at Nisi Prius, and a witness
were contemptuously to leave the court without giving
evidence, and I were to be informed that he was in
Palace-yard, and refused :4') attend, ought I to permit
the course of justice to be inte.'"cuPted, knowing that he
was within the reach of my officer: ? Have lor have I
not the power to order his arrest ?
,4
0. , •
The SOLICITOR-GENERAL—Your L 0... '""IP
have the power, certainly, but it is a poi. er ought to
-. that has
never been exercised, and there is no judicial (.2.'eisi°n "
the question.
Lord DENMAN—It is a most important queslitin•
Practically we depend upon subpoena and recognisance . "I
compelling the attendance of witnesses, but it is very im-
portant to consider whether or no we possess any further
powers. _

The SOLICITOR-GENERAL now came to the question of
the validity of the warrant, and he submitted that it was
the duty of the Court to make every favourable construe.
tion on behalf of the House of Commons. The warrant
was admitted to be in conformity with their ancient
usages and privileges, and therefore the presumption
must be in favovr of its validity.
_ _

Mr. Justice WIGHTMAN—The warrant is to take him
into custody, but it does not say where he is to be taken.
How can that be a justification?
The SOLICITOR-GENERAL apprehended that as the
order of the House for his attendance at the bar was re-
cited in the warrant, that was sufficient to show the
place to which he was to be taken. But he would not
agree to argue this question on the low ground taken by
the other side. He would not submit to the low and de-
grading compromise sought to be instituted between
warrants issued by justices of the peace, and other in-
ferior tribunals, and a warrant emanating from one of
the supreme assemblies of the land. In early times no
warrant at all was issued. The House sent the mace and
that was sufficient authority. He denied the right of
the Court to consider the validity of the warrant. The
attachments for contempt issued by the, superior courts
never set forth for what it was that the person attached
was to be examined. It had been laid down by Lord
Coke that the House of Commons was a court of judi •
cature, and in such cases one court of co-ordinate juris-
diction could not question the validity of the proceeding
of another. He, therefore, submitted that their Lord-
ships would not take upon themselves to decide against
the practice of the Commons House of Parliament be-
cause that practice differed from the forms
observed in this and the other courts. He
next proceeded to contend that it being thought the
House had in this proceeded in a matter over which it
undoubtedly possessed no jurisdiction, a court of com-
mon law had neither right nor power to inquire into the
discretion of the House of Commons in this matter, nor
into the formal manner in which that discretion was ex-
ercised. If it were admitted, as it must be, that the
House of commons possessed the power of compelling
the attendance of persons before them to give
evidence, no court would inquire into the man-
ner in which that -power had been exercised.
(The Learned Gentlemen cited an immense mass of
authorities in support of his position.) But, supposing
the Court had power to scan this warrant, still he con-
tended that the warrant was quite certain enough for
the purpose required. It was more certain than sending
the mace to require his immediate attendance. He con-
tended that he had a right to bring in the averments in
the plea in aid of the warrant, and if so, the ob-
ject and intention of the warrant would become
apparent. He submitted, therefore, that a complete
answer had been given to all the objections raised by his
Learned Friend, and that the Court should give its
judgment in favour of the defendant. He also submitted
that even if the Court should be of opinion that the pro-
ceedings were void, there could be no action against the
officer who executed the warrant.
Lord DENMAN—We will hear you upon that point
then on Tuesday.

COURT OF COMMON PLEAS, Nov. 15.
(Sittings in Banco.)
The Court this day, took the demurrer paper, the
cases in which were interesting only to the profession.
(Sittings at Nisi Prius.)
The Court sat also as Nisi Prius, in the Sessions
House, Westminster.