Case. duel proved not fatal, his Lordship and his second (a 1852. commoner) were arrested on the spot. Lord Cardigan, BARTHELEMY'S when brought before the magistrates, said: "I have fought a duel and have hit my man." He was bailed by the justices. Afterwards an indictment was found against him and his second for shooting with intent to kill. Bosanquet J., after this, enlarged the recognizances both of Lord Cardigan and of his second. These are modern cases which are not reported in any legal work, but which may be cited as matter of history. In Rex v. Morgan (a) there was an indictment for murder, which, as appears from the arguments at p. 86 of the report, was committed in a duel. There was also an appeal for the same murder; Egerton v. Morgan (b); which abated. There was an application to bail the prisoner, after the indictment had been found; and many authorities were cited on the subject, which are collected at p. 85 of the report; the prisoner was bailed, afterwards surrendered, took his trial, was convicted and pardoned. [Lord Campbell C. J. I do not think it has ever been doubted that the Court may bail in a case of murder. In Rex v. Morgan (a) the Court seem to have proceeded on the ground that there was improper delay on the part of the prosecutor. Your present application is apparently on other grounds. What are the facts on which the committal took place here?] It is very inconvenient, and may be very mischievous to the prisoners, to discuss the nature of the evidence. Lord Mansfield disapproved of that course in Rex v. Lord Baltimore (c). [Lord Campbell C. J. A prisoner cannot be admitted to bail unless he makes out that there are not sufficient grounds (b) 1 Bulst. 69. (a) 1 Bulst. 84. (c) 1-W. Bl. 648. 1852. for keeping him in custody. Coleridge J. The uniform BARTHELEMY'S practice is to produce, on the application for the certiorari, copies of the depositions, verified by affidavit, and argue upon those.] Case. Huddleston then referred to the copy of the depositions both before the magistrates and before the coroner, and argued that the evidence against the prisoners was slight, and that consequently they were likely to appear and take their trial. [Lord Campbell C. J. We will look over the depositions.] Cur. adv. vult. Lord CAMPBELL C. J., on the next day (November 24th), delivered the judgment of the Court. We have carefully looked over the depositions in this case; and we are of opinion that we should not be justified in interfering. It appears that the prisoners are committed on an inquisition, good on the face of it, finding them guilty of wilful murder: and, on looking at the depositions, it appears clear that there was a murder committed in a duel; and we think that there is evidence that the prisoners were parties to the murder. We give no opinion as to whether that evidence is conclusive; but we think that it is sufficient to authorize the sending them to trial. It is unnecessary to consider what course we should pursue if the evidence were insufficient; for we are of opinion that it is sufficient: and we could not bail these prisoners without making a distinction between murder committed in a duel and any other murder, which would be contrary to all principle. Time was when the public feeling on this subject was contrary to the law. I am happy to think it is now in accordance with the law; and I hope that the time. is fast approaching when the custom of duelling will not 1852. only be, as it always was, wicked and illegal, but also be BARTHELEMY'S considered absurd. Rule refused. Case. COBBETT against HUDSON. Wednesday, at the trial, has a right to ad dress the jury ACTION on the case; in which issues in fact were A party to a joined. On the trial, before Lord Campbell C. J., suit,conducting at the London Sittings after Easter term, the plaintiff, who sued in formâ pauperis, conducted his cause in person. The Lord Chief Justice told him that, if without waiving his right addressed the jury as an advocate, he could not be to give evipermitted to give evidence as a witness. The plaintiff ness in his own he elected to act as advocate, and not as witness. Verdict for defendant. In Trinity term, the plaintiff in person obtained a rule nisi for a new trial, on the ground of the Lord Chief Justice's ruling above stated. Watson and Unthank now shewed cause (a); and The Plaintiff in person was heard in support of the rule. The nature of the arguments appears from the judgment. Cur, adv. vult. Lord CAMPBELL C. J., on a subsequent day in this term (November 20), delivered the judgment of the Court. We are of opinion that in this case the rule for a new trial should be made absolute, on the ground that (a) Before Lord Campbell C. J., Coleridge, Wightman and Erle Js. as an advocate, dence as a wit behalf. 1852. COBBETT v. HUDSON. the plaintiff was improperly told that he could not be permitted to address the jury as his own advocate without agreeing to waive his right to be examined as a witness in his own behalf. We are fully aware of the inconvenient consequences which must follow from a party to a suit being alternately during the trial advocate and witness; and we express our strong disapprobation of such a practice. But we cannot say that the Judge at Nisi prius has at present sufficient authority to prevent it. Before the recent statute (14 & 15 Vict. c. 99.) the party had a right to conduct his own cause in person, although he could not be his own witness: and by that statute (sect. 2) he is rendered "competent and compellable to give evidence" as a witness, without any abridgment of his former right to act as his own advocate. We must be careful that we do not abridge the rights conferred on suitors by common or statute law, while we are acting merely on views of policy and expediency, with respect to which different Judges may form different opinions. It was stated, at the trial, that verdicts had several times. been set aside on the sole ground that the same person had been permitted to act as advocate and to be examined as a witness: but, when the cases alluded to are examined, it will be found that the rigid rule contended for was not laid down in them. In Stones v. Byron (a), upon a trial before the sheriff, an attorney having addressed the jury as advocate for the plaintiff and then been examined as a witness for him, Patteson J. observed: "I must say that I do not think that such a course of proceeding is proper, or consistent with the due administration of justice. It seems to me, therefore, that his evidence (a) 4 D. & L. 393. ought not to have been received, and, having been received, that there ought to be a new trial." But there the evidence had been received after the defendant's case was closed, and after the plaintiff's advocate had replied; and this irregularity, testifying that the undersheriff who presided was unduly influenced, appears to have been a ground of the decision. In Deane v. Packwood (a) (very shortly reported in a note to Stones v. Byron (b)), which was likewise a trial before the sheriff, the plaintiff's attorney, after addressing the jury as advocate, was examined as a witness; and Erle J. granted a new trial on this ground, but without laying down a general rule on the subject, or professing to extend the authority of Stones v. Byron (b). In Rex v. Brice (c) it was laid down that, on the trial of an indictment for perjury, the prosecutor shall not be permitted to address the jury; the Court observing: "the prosecutor may be, and generally is, a witness; and it is very unfit that he should be permitted to state, not upon oath, facts to the jury which he is afterwards to state to them on his oath." But there the King was to be considered the party; and the private prosecutor had no right to address the jury, even if he waived his right to be examined as a witness. It was said, at the trial of this cause, that, since the late Evidence Act (14 & 15 Vict. c. 99.) passed, it had been decided, both before the Chief Justice of the Common Pleas and the Chief Baron of the Exchequer, that a party cannot be permitted to act as his own advocate and to be examined as his own witness: but, after diligent inquiry, no such decision can be discovered. The validity of the rule contended for is rested on the (a) 4 D. & L. 395, note (b). (c) 2 B. & Ald. 606. (b) 4 D. & L. 393. 1852 COBBETT V. HUDSON. |