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Shepherd, Serj. and Dampier, observing that the 1806. mode of proceeding of the corporation was very art. The Kive fully contrived to prevent the prosecutor from obtain- versus
The FREEing redress, argued that he was deprived of all the FISHERS, &c.of benefits which he might have derived from being a WHITSTABLB. member, as much as if he were actually amoved. The only privilege of the corporation is the participation of the profits, and depriving him of the profits and refusing to pay a day's share is a deprivation of all privileges as effectually as a regular amotion. They are partners, and no action will lie for the day's pay; the bye-law says, that the profits shall be divid. ed as if the party ceased to be a freeman. This there. fore is a complete suspension of privilege amounting to an absolute amotion.
The Court thought that, although it should be ad mitted that the prosecutor could have no other remedy, yet the writ could not issue to restore the prosecutor, considering that he was not in fact amoved, and he was not ousted of his privileges as a corporator, for he might still attend at all courts and meetings, and exercise any other rights of the office.
: RULE DISCHARGED.
SpenceLÝ (qui tam) against De WILLOTT
Where in a qui tam action for usury, the principal witness, the New Trial.
Witness. borrower, hud distributed a printed memoir containing a staté. jury. ment of the case which was only in effect what de proved, and it did not appear to have been seen by the jury, nor to be calculated to influence them ; held that the discovery of
this circumstance after the trial was not a sufficient cause ** for a new trial.
NO. XXXI. N. S... TI
RSKINE, in last term, obtained a rule to shew
cause, why there should not be a new trial in this case, upon affidavits, stating that the witness Chambonas, whose cause this in effect was, it being an action for penalties, for usury in a loan of money to him, Chambonas, had distributed about to the neighbouring coffee-houses near Westminster Hall,where the witnesses were, a certain paper entitled a Memorial, purporting to be a statement of his case, one of which was proved to have come to the possession of one Cassano, who officiated as interpreter. Chambonas, being a Frenchman, was jucapable of giving his evidence in English, and it was plainly observable that Cassano often used expressions of his own, rather than a close translation of the evidence ; for which he was rebuked by the court. It appeared that a large impression had been worked off for Chambonás, but it did not appear how Many vère actually distributed, nor that the jury had seen any of them. The attorney for the defendant did not discover this fact'till after the trial; and the damages recovered were to the amount of 25,0001.
Gibbs now shewed cause, and insisted that this paper not being proved to have come to the hands of the jury, and possibly being, for aught that appeared, the trick of the defendant himself, did not amount to such an undue influence upon the jury as to entitle the defendunt to a new trial.. .
GARROW and DILLON epdeavoured to assimilate .this case to that of the King v. Jolliffe* who had circulated a hand-bill in the assize town previous to the trial of an information against him, in consequence of which the judge, at nisi prius, put off the trial, and this
court granted a criminal information against hias. 1806, And they contended that, although it might be not so such a paper as might do barm, and although it might qui tam not be supposed to have an influence upon the jury, yei Dr W ILLOTS it would be a proper rule to prevent any possible misconduct, in endeavouring to influence the jurors, by shewing that even a foolish 'vain attempt, would frustrate the very end wbich was sought to be gained by it. And they said it was not denied that the plaintif and Chambonas knew of it.
Lord ELLENBOROUGH, C. J.“ In order to make this a foundation for a new trial, it should be shewn, that the paper had some effect actual or probable on the verdict; but it is not brought within the sphere of the jury, and it does not appear, that any were given away where they were, and it would be dangerous to say, that a trial should be questioned, because a paper had got into the hands of a witness, especially were the damages are heavy. It would go to shake all the verdicts that may be obtained. Admitting all that can be proved, and supposing him to have given to the interpreter a full statement of the evidence before the trial, that would not be a sufficient ground for a new trial, It is not stated that he mistranslated any thing ; be rambled and conducted himself strangely, he ran before the question now and then, and gave great trouble, but I cannot say that be incorporated this into the evidence from intrinsic knowledge, and not as evidence. Chambonas was attending as a witness, and this was what he could swear ; suppose a witness on the other side was attending, and this is a communication to him of what is to be sworn, I cannot say that it ought to vitiate the trial. For suppose the party tell him to take care what he swears, for that, meaning the contents of the paper, will be sworn by another person ; I cannot say, that it should affect the verdict. I cannot say that every writing of any kind, and however circulated should affect the trial, unless the verdict was likely to
· 1806. be influenced by it. In the case of Jolliffe, there was
SPENTELE a publication in the place of 'trial, and the object of : qui tam the publication was to influence the jury, and there De WILLOTT. was no other object apparent upon the face of it."
GROSE, J. “Had it not been for so large a sum ve should have hardly heard the motion. It would be a precedent of a very dangerous sort, to perinit a new trial to be granted for this. There is nothing imputed to the plaintiff that he was party to it, and this paper only contained in reality that which was sworn, and it could have no operation upon the evidence to mislead the jury."
. LAWRENCE, J.“ A new trial ought not to be granted in this case. There is no reason to suppose that it had any influence on the witness or the jury. Where a witness has had that testimony pointed out to him which he should give, and wbich he would not otherwise give, or where the paper influenced the jury, that would be a ground for a new trial, but that is not so here, and we must be very careful in overturning verdicts for extrinsic matter set up after the trial.”
LE BLANC, J. « This differs materially from the case of the King v. Joliffe, for there the publication might probably influence the jury, and it was very right that the case should not be tried by, the same
SpenceLY qui tam against Schullemberg.
25th April. Where an attorney in a cause had been served with a notice to
produce an agreement entered into by his client, held that he Privilege. · was bound to give evidence of the conteres of such notice ; for Witness. the privilege as to evidence is confined to the oral or writ. ten communications of the client himself, and does not er. tend to all papers and commuricutions which the attorney re
ceives in the course of the cause. IN this case, which was a similar action for penalties, SPENCEL*
the plaintiff had delivered a notice in writing to Schullexthe attorney for the defendant to produce the original BERG. agreement in writing, and upon being called upon to produce it, the defendant's attorney said, he had delivered it to Mr. Garrow, one of the counsel for the defendant. The counsel for the plaintif would then have examined the attorney as to the contents of the notice, they not being able to prove it by any other means. To this the counsel for the defendant objected, urging that it was the privilege of the client that his attorney should not be allowed to disclose those things the knowledge of which he acquired in the course of the cause; and his testimony was rejected by Lord ELLENBOROUGH, C. J. who tried the cause. Whereupon for want of proving the contents of the notice to produce the agreement, without which the agreement which the plaintiff called for could not be identified, the plaintiff was nonsuited.
Sir VICARY Gibbs, for the plaintiff, in last Hilary Term, obtained a rule to shew cause why the nonsuit should not be set aside, and a new trial had ; and now - GARROW and Reader shewed cause. " If the law requires a party to serve a paper on the other party, he ought to prove the service regularly, and not to