Court Of King's Bench, We...
The Times, 1824-05-14T00:00:00

* LAJ W APORT - s 0 . f ILOss was a rllle qbtaCined ini fili.rY terma bv Air. French, calling -On MrI. lifsah, the clerk of the county coutrt ot Middlesex, and Mrf. Duebois; his deput.y. to show cause why a criminal iaformnatjn alsould not be exhibited against them fbr alleged miademeanours, in takin exeessiye fees, and djeciding causeS without hearing the case Of the defendart. Mr. SCARLETT n3ow Showed cause agaiust the rule. This rule was obtained on the affidavit of A1r. Hulme, who comuplatined, that in three caume in which he was defendant injustice was done himn. It was sinjgular, that in no one instance was it stated that Dlr.Heath himaseIf was present; but thre affidavits ran, "1 The said county clerk, or his dep'aty," and 'et they concluded with alleging that bothi the eoup~ty clerk nd`hris deouty were actuatedI by corrupt miotives. The LoRD CHU J'uaSTCFaasked ifthere Was ten even enough ,to call en the parties to answer?. Mlr. SCAsaETrT replied, that he beli,-ved not;- but Mr. Heath and his aeputy hadl reason to believe that the present applicant was the organ of others, who had circulatedi rumnours as to the practice of the Court, and they were desirous that the fullest investigation should be masde. The LoRD CluE!' JusTricz.-Then MrT. Heath direct you to proceedl? Mr. SCARLETT replied in the affirmnative, and wenit on to state the nature of the charges. The first cae was a plaint by Joseph Brock against Mfr. Hulme, for di;missing him from his service withoutt a month's warning, or the payment of a month's waces. Mtr. Hielme alleged that his witnesses were not heard ; but so far was this from the case that Alr. Dubois, the deputy, whom every one knew to be a gentleman of themost correct fleelings and demieansur, diLstinctly reolected thenutenre of the defence set up and the manner in~ whichr 'it fale. .Mr. Hlulme. asserted tha4 he turned away the piaintjff because he-was' Intoxicated and sick, And he cqlleduIs fillow.-servant, Charles Ierry, to substatitieae ths charge ; but P-erry, iniistead of sustaining it, disprove-d it, for he stated that Broc-k watsisick, riot from drunkenness, but from a liver complabit under which he wias Jabouring. ULpon this, MNr. Duibois left the case to the suitors, who sa~t as jurors, aitd they found for the plaintiff IL l19s. Ild., that beinvthe sum whichi he sought to reeover. At'ter the cause was over, Chartes Ferry, the servant, wvho now made affidavit, continued to disturb the Court, aLnd wished to question tire justiceof the decision; but Alr. Dubois ordered him to retire The se- cond ehasrge related to a case in which Mfr. Gent was plaintiff; and there the complaint s'as, thatAlt. liulmehad fornerlv sued Air. Gent before the commissiorners thAt Air. e-ent established a set-oif', over- reacingr the demand, an therefore he o,uld not in his turn becomne plaintiff; and sue for the residue. It as manifest thatin this ca-se the dLefendant, was heard because the demand was reduced from IL. 19s. 6t. to 11. The third cast was one in which Air. Griffin was plain. tiff:-.for Ur. Eulume had the misfortune to be otten sued-and there the complaint was, that M'tr. Dubois refused to receive evidence of what the magistrat'es at Mlarlborough..street had done in reference to the samte derenand..a complaint whiohi could' only arise from the grossest ignorance of the jurisdiction of the magistrates, who had no power to lege ally civil cause~, and whose power was8 restrictedl to criminal chargos and the conservation of the public l'eace~ Then came the question of fees-a question respecting whichi Mr. Heath was peculiarly anxious, and whiich respected only one of the causes whiere Bls. l0d. had been taken. Now Mlr. Heatih distinctly aware, that the fees taken on this and on all othier occa 5ions were the same which had been taken from the origin of the c,ourt.-.tbe samne whiich were brought under thie consideration of' Lord Ehlenborough and Sir Vicary Gibbs, the Lord Chief Justices of the King's 4ench, 4nd Comnmon Pleas ; which thev reported to be warr-artted by a fair construction of 23 George 1., hb' which the ju- risdiction was created, and which had heen taken ever siince. he table of fees authiorized by those learned Judges had always been affixed in a coDnspicuous place in the court, and is een rigi'dly ob, servedl by its officers. As there iseemed in the atffidavits to be some insinuations relative to the nuinber of suitors by whom causes were tried, and the amouint of debts which were'reduced, by the consent of plaintiffis, it mliht he as well just to notiot them. Now, as to the first, It %as tlee practice of the Court to try with three suitors; at common law the trial was not Ly 'jurors, hut by suitors; and thouKh the statute re uired that 12 should be sum., inoned, it evidently did not meani ttiat 12 should be necesuary to trial. As to the second, undoabtedly it did stometimnes hzppen that a plaintiff whose claina was more than 40s., hut who was desirous of obtaining cheap and speedly justice. aban4onr4 a part of his demnand so as to bring it within 40s. h ut tiwn he was always admonished that he could never sure'for the residue, but that hie must abandon It for ever. The statement of Mr. Heath and Mr. Dubois was corroborated as to the practice by Air. Al- sop, the register; ast to the case of " Brocek Y. Hulmne," by the three fuitors who tried it; and tire whole charge being enirely grounjdless, he trusted the Court would dischiarge the role wgiteh costs. In the coursye of hiis address, the learned counsel reAd a part of the affdavt, hic sttedtha "Dnie 1~rech, Esq., whomn the de- inforationrespctingthe fes."the court, and asked for Mr. BongR~ folowedon te sae side, and analys~de(th fees whch ade~p he um f B. l~I.taken, int the following manner ;~~~~~~~~~~~~~ 5~S d. Frthe entry of the plaint.0 4 Summonst thereon.0 4 Service of summons on defenidrint.0 4 Order Niri for judgment, unless the defendant shall appenr 0 8 Entry of order N ZVr.) 4 Service of order Altisi on defendant. 4) 4 Hearing in theasne of defendant,when the plaintiff stat. eadhisspim fai.0as Crier, on saich hearing. 2 Entering the defendant's appearance . . 0 6 Hearing of thecacuse0 6 ,Crier, ,ii-such lhearing. 4) 2, Order for judgment . 4) 8 Entry of such order. 04 Mtaking out execution.4) 4 Serving execuition onL the person .. 0 These wre the rdinary Total. i I 0 Thee wre he rdiaryand usual fees takent from the- time when the Court began'to sit, and which Lord Ellenborough and Sir Vicary Gibbs confirmed by thieir sanction. AMr. FRENciH began hisi address in support of the rule by indig. nanly ellni hehmuain which he conceived the affid'avit c-ast sit irn- f audenied that he in any way personally interfered iii the cause. ie felt for the honour of his profession, and hie trusted it would neXe suffer in his handst, unless in these degenerate days adversity was crime. The fees of' the Cuunty Court were ample; the act was even prodigal in ira indulgence to the officers ; they lind abundance, arising from tbe fees extorted fromn the poor, to maintain thetoselves in luxury and isplendour, while the wretched suitors of .their Court wets pintng in miserable povertyr. The COURT suggested to the learned counsel, that the amrounit of the clerk-'s incomne did not a pear oDn the affidavits, and form-edno part of the case on which the &lurt had to decide. Mlr. Famvcrt proceeded, among frequet interru tio, to charge, in) strong terms, extortion againlst teoffcers of LtteCo(nourt. He contended that the set of Parliamenit never contemiplated the is- suing of more than one order, anjd that the order, called the order ldisa, was a gross imposition on the suitors. The LoRD GStIEF JUSTICE explained, that this order was ne- cessary, in consequenice of the non-appearance of tie defendant. If he were not obliged to defrAy thia expenxe, no one would ever appear, until it was necessary, to prevent execution issuing against himi. Mir. FatEscHs arg'ued thbat this order was needless, and read a pa.,- sage from Blackstonc, to show that the learned commnentator never contemxplated such a hiardsihip on the subject, and that he also under- stood the constitution of' the court as requiring 12 jurors for the trial of causes. As the learnedI counsel was deprecatig the innovation on the trial by jury which had crept into the practcofheou, The LORD CHIEF JUSTicE reritn ded hii,ttthprenwa a criminal charge, and thiat evex supposing theatob 3 iog f hiad been misaconstrued, the county clerk coul o b ratda criminiial, for pursuing the course uniformily follwdb hs h had preceded huim. Mlr. Justice LITTLZDALE observed, that at common Ilaw tie county courtsi couldI not try by jury in cave o1 plaiiri, thlough they migh by writ ofitatsicics,or by, prec.vriptione. M'r. FzRExcJt urged that the table of fees was not properly made out; that the services of thie sumnionses ought not to be distinctly charged; and that thiere ouglht not to be separate fires for inaking out and servinig the proceses. He also contended that the chiarge respt!cting tIme cwe of "1 Brock, v. ifulnie" was not answered, as, the defence was not inerely that the servant was drunk, hut that he went away withiout mnasking any demar,d of his montli's wages, and thait all the wages actually owing hiad been duly paid. Alir. COOPER shiortly followed onx the Saine side. He argued that the Couiity Court hiad no powier to take cognizance of claimst whichi were originally above 40.., even though the plaintiff volun~taily .chos.e to restrict his demand oasmialler sumi. The affidavit of5Mr. Duboisi conttained no positive deniial that %Jr. Hiuliiie offered the de- feuco to which he now -adverted, but mnertly set forthi that anotheri ground of defence f4iled. Adverting to theimanner in which the af- lidavits were fraimed, -he tmisted that in case thte Court thioughit the rule utht to be discharged, they would discharge it without costs. itewasDtire EF sPSIC ld he entertaned no doubt that it as iiedut oftit Cortto discha-rge the rule. In deliyering Ithis opinion, he shioujd decide notlming' which was not es-sential to the present charge in its present form-that of a criiiiinali lharge against thiegentlemien accused. Even supposwing tliey had taken fees which tire true constructioni of the act did not sanction, still, if those fees had been paid from the beginiiingE of the jurisdiction of the Court, and if they had been sanctionedlby the approbation of the hiigh judicial characters to whomis allustion hail been made, lie could notlhold themi criminatlfor the course they had adopted. If they-had mistaken the meaning of the act respecting the numnber of suitors, still they would not be liable to criminial process for an honest error. Thec otlher chare arisinK out of the causes in wlhich Mtr. ifulme was defendant ha4dareceived coniplete and satisfactory aniswers; mand, Indeed, the case would long ago ihave been gtopped, had it not been very important that the suitors of the Court shiould dimtrnctly iinder- stauth that the fiees taken -by the county clerk were auathorized by law. At one timne, he (the Lord Chiief Tustice) doub ted whether, thoughi the rule mnust be di-chiarged, costs oughit to bc given ; beca'use it vias sworn in one of tlmc affidavits, that Air. Alsop. the Re- gistrar of the Court, when. asked to explais the amount of fees charged, refused to do so; but now le was satisfied that as MIr. A1sop was not included in the presert charge, his conduct ought not to affect the defendants, who had no share in the refuial. Ac cording, therefore, to the uiilform practiceef the Court when parties received a complete acquirtal, the rule must be discharged with costs. Mr. Justice BAYLEY fiully concurred in this opinion. lie knew that gentletnen of the highest character and honour, who presided ovet inferior courts, were in the babit of alloving parties to reduce theirdemauds, to as to bring them within the asum over which the court hadjjaritdimcton; and this, not from the lbve of gain, as their -rWatnitrlts wezm not dependent on the number of cAuses, but from S Wibh torTieve poor suitors, who might otherwise be without re. miedy. The other tharges were satislactorily answered * and had the Coutt known- when the rule was moved for, at the affidavits ch&rged .o'one positively, but opl perso or the other, they would Ileverhave granted it. The rule must, thereforei be discharged with costs. MIlr. Justice HOLROYD -amid br. Justice LITTLEDALE con- curred, and the rule was 4iseharged with costs. .COURT OF IT9wrii .- . - TRE KIWG V. TlE tZOiTYCLERKT o0r DDLESEX AND HIS