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plaintiff has used a reasonable diligence or 'no. This the jury are to judge of. There certainly was time, though by incidental circumstances it was very strait. The precedent would be dangerous to set aside a verdict, which is neither against law nor evidence.
Foster, J.-Reasonable time is what is sufficient to receive it in. The verdict is not against evidence. Bankers have no right to establish a customary law among themselves at the expence of other men.
Rule nisi for a new trial discharged (a).
(a) This case has been overruled in that of Appleton v. Sweetapple, Bayley on Bills, 106 (3rd ed.) There, a bill payable in London on demand was given to the plaintiff in London at one o'clock in the afternoon, and he did not present it till the next morning; the question was, Whether he presented it in time. Lord Mans field left the point to the jury, who found for the defendant; but the Court granted a new trial, because the question was a matter of law, upon which the Judge should
have decided. The jury found again for the defendant, but against the Judge's direction. A second new trial was granted, and the jury again found for the defendant; and then the Court refused to interfere. This is recognised in Robson v. Bennett, 2 Taunt. 388, where it was held sufficient, that a check should be presented the day next after that on which it is received: S. P. Metcalfe v. Hall, Bull. N. P. 276; Rickford v. Ridge, 2 Camp. 537. See Dagglish v. Wetherby, post, 747.
read the Riot
· The King v. SPRIGGINS. Information for M OTION for an information. Spriggins had mortgaged a coppretending to
e pice: the executor of the mortgagee employed men to cut it act, denied. down. The mortgagor, not being a magistrate, read a paper
which he said was the King's proclamation against riots; but it not being proved to be so, no information was granted (6).
(6) See R. v. Ink. of Wigan, post, 47; R. v. Robinson, post, 541.
HALE v. CASTLEMAN. Altering a she- THE plaintiff's attorney had inserted in the sheriff's warrant to sif's warrant
arrest the defendant another name, besides those whom the an attachment, sheriff had directed it to, and who arrested defendant. On the unless an ill use sheriff's complaining of this, the name was erased; but the atmade of it.
torney swore, not by him. Wright, J., was of opinion to grant [ 3 ] an attachment for this; but Lee, C.J., * Denison and Foster, Js.,
though they disapproved of the thing, yet thought an attachment too hard, as no ill use had been made of the warrant (c).
(c) If a warrant be altered by the insertion of a name, an arrest thereon is illegal; Burslem v. Ferne, 2 Wils. 47; Hou
sin v. Barrow, 6 T.R. 122; and see Boyd v. Durand, 2 Taunt. 161.
The King v. Charles RadcliFFE.
S. C. 1 Wils. 150; Fost. Cr. L. 40. . THE prisoner was attainted of high treason in 1716, for being in that rebellion, and had escaped out of Newgate (it was
ney-Coed. confined on boamas, with
andaken atebellion head ente
thought by connivance, being the younger brother of the Earl The King of Derwentwater, who was then executed), and had entered . into the French service. During the late rebellion he was, with RADCLIFFE. other French officers and troops, taken at sea on board a ship said to be bound for Scotland, and confined in the Tower till this Term; when the Attorney-General t on the 19th of No- + (Ryder.) vember moved for a habeas corpus to bring him to the Bar of this Court, and he was accordingly brought up by General Williamson, the deputy-lieutenant, on the 21st of November.
At his first appearance he, with some levity and indecency, disclaimed the jurisdiction of the Court, as being a subject of the King of France, whose commission he had borne these thirty years; claimed the benefit of the cartel between England and France, and demanded that his commission might be read: but Court will take the Court told him, that could not be done. He was then called no notice of to, to hold up his hand; which he refused to do; which the commission.
from a foreign Attorney observed to be a mere point of form, and therefore
prince. insisted he should be arraigned without it. Lee, C. J., then desired the prisoner to comply with it, as a usual ceremony; but he refused, saying, if it was a mere point of form, it might well be dispensed with in a stranger; if a point of moment, he Arraignment was determined to do nothing that might argue a submission to sans holding up the jurisdiction (d). It was then demanded of him, What he the hand. had to say why sentence of execution should not be awarded against him according to his former judgment; and was informed that, unless he answered, sentence would immediately be awarded. He then *desired counsel to be assigned him, to advise him what *4 ] plea to rest upon. And, at his desire, Mr. Ford and Mr. Joddrel were accordingly assigned him: who desired time to prepare themselves. And the Monday following, the 24th of November, was fixed to bring him up again.
A rule was then moved for, to admit the counsel to have Rule not orant. access to the defendant, now a prisoner of this Court, but Mr. ed for access of Attorney objected to it; unless leave was previously obtained counsel to a
state prisoner. from the Secretaries of State. But Mr. Solicitor (Murray) informed the Court that he was told, the Secretaries had already given orders for that purpose. Whereupon the Court said, then there was no occasion for any rule, and so none was granted.
November 24.- The prisoner was brought into Court, and there immediately began reading the cartel, which stipulated that all officers, of what nation soever, shall (if taken) be exchanged, &c. But the Court took no notice of this, and demanded as before, What he had to offer, &c. To which after some delays he at last answered (without holding up his hand) that he was not the person mentioned in that record. Mr. Attorney then averred that he was; and issue being thus joined, a jury was called to try it at the bar instanter (e).
(d) Holding up the hand is not neces- (e) 4 Bla. Comm. 396; R. v. Corbet, sary in the case of a peer; neither is it ab. Sid. 72, 1 Lev. 61, 1 Keb. 244, Kelyng, solutely necessary in the case of a common 13; R. v. Rogers, 3 Burr, 1809. See Com. : person; 2 Hale P. C. 219, n. (a); Lord Dig. Justices (W. 2.) and the form of the Delamere's Ca., 4 Harg. St. Trials, 211; entry of a trial instanter, 4 Bla. Comm. Lord Mohun's Ca., Id. 512; Lord Staf. App. v. ford's Ca., T. Raym. 408.
on this would
The King The prisoner's counsel then moved for farther time; and an V.
affidavit was sworn in Court by the prisoner, under the name of RADCLIFFE.
Count de Derwentwater, setting forth that two witnesses who No putting off were mentioned by name, and who could prove he was not the a trial on a col- person they would have him to be, were now at Brussels ; but lateral issue, un- Sewa less the defend.
would come over if sufficient time was allowed to send for them.
W ant will purge The King's counsel (viz. Mr. Attorney, Sir John Strange, himself of the Mr. Solicitor, and Sir Thomas Bootles objected to this; unless accusation by
the prisoner would absolutely and directly swear, he was not the affidavit.
Charles Radcliffe who was attainted in 1716: alleging, 1. That this was a collateral, not an original, issue. The fact to be tried was, not whether he was guilty of treason, but whether he was the person formerly attainted thereof. In original issues it is usual to stay trial on such suggestions; but in * collateral ones, the trial is always instanter. 2. That by requiring such positive oath from the prisoner, no injury can possibly be done to him. If he is the traitor formerly convicted, he deserves no indulgence: if he is not, he may safely swear it. If the prisoner will not swear it; the Court will conclude him to be the person, and so shew him no favour. "
To this it was replied by the counsel for the prisoner, that he had been confined for more than a year without being brought to trial, or knowing what charge would be brought against him. That the Crown had taken this whole twelvemonth to seek after evidence; and would not allow the prisoner a Term, nor even a week, or a day. For though notice of his being brought up was given to the prisoner on the 10th instant; it was countermanded the next day, and no fresh notice given till the night before he was brought up. As to the first objection; allowing a distinction to be sometimes taken between original and collateral issues, it could hardly be admitted here. For if the prisoner be not the person attainted (which must yet be supposed) then with regard to him the issue is indeed an original one: For it is the first time that he has been called to answer the charge against him: His fortune, liberty, and life, are equally in jeopardy now, as if he had been indicted of high treason; and he is entitled to the same indulgence in order to save them. The condition of foreigners would be extremely hard, and the English nation be odious to all the world, if we were to set a precedent of taking a man on the high seas, bringing him to England, charging him with a former conviction thirty years ago, and (when he begs time to fetch his witnesses from beyond sea, in order to clear himself) telling him it is the custom of our Courts, to proceed to the trial of such collateral issues instanter. As to the second objection; it is a maxim in our law, Nemo tenetur seipsum accusare (e). To demand an oath of this nature is in fact to force the prisoner (if guilty) into a self accusation,
by his silence; or else into perjury, by taking it. It is true, *6 were he innocent, it could not hurt him: But one *might, with
equal propriety, object to postponing a trial on an original issue of felony or treason, unless upon the same conditions; which
(e) Post, 41, n. (n).
conditions have an inevitable tendency to overturn that funda- The King mental maxim aforesaid. As therefore it is allowed that in those cases a trial may be postponed, upon such an affidavit as the present, they hoped the present case was within the same reason (f).
Sed per tot. Cur.-Unless the prisoner will make a positive affidavit, as required by Mr. Attorney; the trial cannot be put off. Which he refusing to do, a jury was impaneled on the spot by the under-sheriff of Middlesex, who attended for that purpose.
The prisoner was allowed no peremptory challenges (g) to No peremptory the jury (though he demanded that liberty) on the authority of challenges in colLord Hale P. C. (h), who says (as cited by Mr. Attorney) that lat in collateral issues no peremptory challenges are allowed. N. B. He immediately subjoins the reason; because in such issues the party's life is not in jeopardy.
On the part of the Crown four witnesses were produced, of whom the principal was General Williamson; who swore, that the prisoner had in conversation confessed, that he was the person in question; and that he had escaped out of Newgate, and told him the manner of his doing it.
On the part of the prisoner no witnesses were produced, but Mr. Carpentier, envoy from the King of the Two Sicilies; in order to prove how long he had been in the French king's service: but he was not permitted to enter into evidence on that head. However he desired Mr. Carpentier to bear witness of his frequent protests against the jurisdiction of the Court.
The counsel for the prisoner observed upon the evidence to Attorney Genethe jury: after which, the Attorney-General (contrary to all
with new matpractice, as no evidence was given by the prisoner) insisted and ler, in collateral was permitted to reply. In which, he informed the jury of the issues, though *prisoner's refusal of the oath which was tendered to him; and [ * ] this he insisted was the strongest proof of his guilt. As this no evidence was first mentioned in the reply, his counsel had no opportunity
prisoner. of explaining that matter to the jury: Who, after withdrawing from the bar about three minutes, found a verdict; that the prisoner was the same Charles Radcliffe who was indicted and convicted in 1716.
A faint attempt was afterwards made to plead the act of grace, 7 Geo. I. in stay of execution, but the foundation of the plea being very slender, it was dropt. And the prisoner at the bar, by the name of Charles Radcliffe, was ordered for execution on Monday the 8th of December, at the suggestion of Mr. Attorney; who observed, that two Sundays would have intervened, which was the usual practice at the Old Bailey. The prisoner took his leave of the Court, with this speech; “ I hope your Lordship will allow me time enough to send to Lord Morton (then a prisoner) at Paris; for we are to set out upon the
same journey together.” He was accordingly beheaded on Tower-hill on the day appointed by the Court.
HILARY TERM,--20 Geo. II. 1747.-K. B.
Powel v. LITTLE. Payment to the THE plaintiff had privately countermanded his attorney in this plaintiff's late cause. "The defendant afterwards pays him the debt in disattorney, changed without leave pute, for
pute, for the use of the plaintiff. And the Court held it a good of the Court, payment; because the attorney was changed, without leave obwill be good. tained from the Court (a).
(a) But payment to an agent, employed to sue by plaintiff's attorney, is not payment to the plaintiff; Yates v. Freckle
ton, 2 Doug. 623: See Morton's Ca. 2 Show. 139; Kaye v. Demattas, post, 1323.
V. Strange, 1253.
IN THE EXCHEQUER CHAMBER.
Holdfast on demise of Anste v. Dowsen. JOHN THOMPSON being seised in fee, by his last will devises lands to Dowsen for life; with remainder to his issue in tail: He also devises a legacy of 101. each to John Hales, and Elizabeth his wife, and an annuity or rent-charge for life to Elizabeth Hales, to her separate use, charged on his real and personal estate; which he also charges with the payment of all his legacies. John Hales was a subscribing witness to the will; and after the death of testator, refused to accept his legacies of 101. when tendered. Dowsen the devisee enters on the land, and Ansty the heir-at-law brought an ejectment to try the validity of the will. The jury found the facts above stated; and the Court of King's Bench determined in favour of the plaintiff, that the will was not properly attested by three credible witnesses; on account of the interest of John Hales. Dowsen brought a writ of error in the Exchequer Chamber, *where it was argued the 10th of February, the 18th of February, and the 3d of March, 1746.
Sir John Strange for Ansty, the defendant in error.—The law is jealous of the credit of judges, officers, jurors, and witnesses. Judges cannot judge in their own county. Various exceptions are allowed to sheriffs, &c. Various challenges to jurors, who are to be omni exceptione majores (6). The law is no less jealous of witnesses, especially with regard to devises. By common law, no estate greater than for term of years was deviseable by will; Co. Lit. 111b; Wright Ten. 172, 173, 174. When uses were introduced, uses were devised, Plowd. 302 b,
(6) Co. Lit. 156 a.