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SUPREME COURT.
SATURDAY, SEPTEMBER 20,
(Sittings in Banco, before the three Judges.)
Girard V. Biddulph.- In this case, which was a
motion for a new trial, the law arguments upon which
had stood over for reconsideration from last mo
last motion day, Mr Williams moved that the farther
hearing of the case bo postponed until next Saturday,
on the ground that it having boen found necessary td
retain another counsel for the defendant, sufficient
time had not elapsed to enable him to become ac-
quainted with the features of the case. The motion,
not being opposed by Mr. Wentworth, the coun-
sel for the other side, was granted.
M'Laughlin v. Parrott.- Mr, Justice Dowling
read his notes of this case, which was an action insti-
tuted to recover compensation in damage; for a mali->
ciouî prosecution for felony, and unjust imprisonment.
The'defendant suspecting that a bullock of his, waa
in the plaintiffs herd, gavé information upon oath ia
that effect, before James Glennie, Esq. J. P. who
granted a search warrant thereupon The defendant
accompanied the constable who' was charged with the
execution of this warrant,' and previous to their carry-
ing the search into effect,' they placed the plaintiff in
hatrdcufTs for about three hours, at tho expiration of
which time, the defendant having found out that the"
suspe'cted animal was not his property, released the
plaintiff from custody, aad departed, expressing sor-
row for what had happened. .Upon, the trial, the
defendant's counsel urged the court to grant a non-
suit, on the ground that the information said to havov
been made before the magistrate w herí the wari ant
was granted, was not produced in evidence, but tho
learned Judge would not stop the case in that stag«
from going to the jury, but would reserve the point
for after consideration should it bo necessary. The
Jury found a verdict for the planliff, with ¿40 da-
mages. Mr. Norton was now hoard upon the point
saved, and he cited a case from" the 2d Starkie, in
which the production of the information, and not the
warrant alone in a case of malicious prosecution, wa«
held to be necessary. Mr. Foster, on the other side
contended, that although such an argument would
have held good if the defendant had merely given tho
information, without pursuing the caso any farther } '
yet, there was an after averment in this declaration,
which had besn proved in evidence, that the defen-
dant had accompanied the con tibie, and 'actually
assisted in placing the plain'iff in han leuffs, previous
to making the search, expressly contrary to tho terni!
of the warrant itself.
The Couit was of opinion that the warrant was not
sufficiency explanatory, to fix upon the defendant,
the making of a charge of felony a;ainst the plaintiff, "
and that therefore, the production in evidence of the
information upon which that warrant was granted,
was absolutely necessary. From the vague nature of
the warrant, the Court was in doubt whether theia
had been a charge of felony preferred against the
plaintiff, or not. Leave to enter a nonsuit was
therefore granted.
The Solicitor General, in the absence, and by til«
desire of the Attorney General moved the Court, to fix
an early day for the trial of certain persons, now un-
der commitment for the wilful murder of the late
Dr. Robert Wardell. He would beg leave to pro-
pose next Friday a3 the day of trial, and he would
at tue same time acquaint the Couit with some of the
grounds upon which he made the application The
magistrates had examined on oath at the Police Office,
an accomplice in the crime, and his evidence had
been circulated through the public press. The casa
would wholly turn on the evidence of this person,
and from the confined state of the gaol, as well as
from the publicity which the particulars of the casa
had gained, it was absolutely impossible to guard
against the approver being tampjie 1 with by the rest ,
of the prisoners, or other persons employed for that
purpose Independently of this, the approver might
die bafore the ciiminal sittings of November next,
and by this means justice would be frustrated. He
trusted that before their Honors should decide against
fixing upon au early day for this trial, they would
hear him upou the point, as lu contended for the re-
quisition he had just made, asa right to which his
colleague, (and therefore to himself, in his absence) -
was by virtue of his office'entitled.
The Chief Justice, after som« deliberation, said,s
his learned brethren had agreed with him that there
was no particular fact shewn to induce them to grant
the application just made to the Court. The local .
enactment had provided that the criminal sittings of .*
the Supremo Court should be held in the respective aj
months of Febuiary, May,'August, and November in*
each'year, audit the Judges were to depart from that .
rule on the present occasion, he would at once say, -
without miking lany inore pointed allusion to the ,
matter, that the Court would be'justly chargeable ,
with yielding that concession from the personal emi-
nence of the unfortunate individual with whose name
the application .was identified, which they would have
denied under more ordinary circumstances. It would
be establishing a precedent, extremely inconvenient
to the despatch of public business, which might with ,
equal justice ba pleaded on every other occasion.''
The learned Chief Justice then stated it was entirely T"
new to him to hear that the Attorney General wat ,.
possessed of the royal prerogative to call upon the- .
Court to sit whenever he thought proper : circum- -
stances might occur, and indeed liad occurred, to re-
quire the Court to sit specially for the trial of cases of
insurrection at the distant settlements of the colony,
or from the crowded statê^f the county gaols, but in
this instance there did not appear to bo any thing
which could be pressed upon the Court as in the
other cases, and they therefore did not feel themselves
called upon to depart from the rule-laid down for
their guidance.
The Solicitor General observed, that he applied
on behalf of the Executive, who could, if necessary,
issue their mandate to the Court in this respect, and
he therefore claimed the granting of his motion as a
matter di right on their bohalf.
The Court remarked, that it had always been cus-
tomary hitherto, in such- matters, for the Executive te
communicate direct with the Judges.
The Souci ron General said, he had been in-
structed to pursue the present course; and howould .
take this oppoitunityof pointing out to their Honor»
thï bad precedent a rsfaial on their part would fur*

nish on any futur« Bench, who might not preservo so
good an understanding with'the Executive, as was at
ͻresent happily the case; and induce {hem, at some

uture time, to place a veto on the willies of tho go-

vernment.

The Chief Justice said, he had tho greatest pos-
sible wish to preserve a good understanding with the
Executive, and any proposition which might bo sub-
mitted by them to the Bench, would be treated with
respectful consideration. Allusion had been made
with regard to the precedent which the decision of the
Court on this occasion would furnish, but what was
to be said of tho precedent established in the present
motion of the Attorney General to the Court V

Tho Solicitor Ginehai, observed, that ho for him-
self was not disposed to give up the privileges at-
tached to his office, and he should therefore, though
with the utmost respect, beg leave to enter his protest
against their Honors'decision.

The Court enquired how they could po?sib1y sit as
a Court of Oyerand Tet miner, apart from one of Ge-
neral Gaol "Delivery, which under the enactment
wore inseparable 1 The discussion then ceased.

Mi. Edward Solomon, residing in GcOrge-street,
nppeared before the Court in person, to claim protec-
tion os a witness uneer the following circumstances:
Ile had given evidence in the case of Hoskins v.
Charlton, which was tried at Nisi Prius on the pre-
vious day, and when he was coming out of Court, ho
overheard the counsel for the plaintiff, saying in a
conversation with Mr. Keith, while standing at the
Court-house door, " I have lost the case through the
perjury of that d---d Jew scoundrel," at the same
pointing to the applicant.

,Mr. F. Stephen stated, on behalf of Mr. Sheehy,
that the conversation alluded to was not made to Mr.
Solomon, nor was it made with the view of reaching
his'ear, and that therefore the old adage of " Lis-
teners seldom hear any good of themselves." would
not bo misapplied. He Would also state, for the in-
formation of tho Court, upon Mr. Shechy's under-

standing Ihc remark which had escaped him in a mo-.
ment of excitement, had reached the ears of Mr. ¡So
1 arnon, for whom it was not intended, betondcrcd au
apology,,which had been refused. The Court thought
that, under dil (he circumstances, enough had been

done in the case.

Upon the motion of the Solicitor General, Mr Ed-
ward Henry Pogson was admitted to practice as an
Attorney, Solicitor, and Proctor of the Supreme Court

of New South Wales.

Upon the motion of Mr» Wentworth, Mr. Robert
Foster was appointed Solicitor for conducting tho'
suits now pending in the Court, which were in the
hands of the late Dr. Wardell, at tho time of his

decease.

Mr. Wentworth movedîor a rule to show 'cause why
a criminal information should not be filed ..against
Edward Biddulph, E*q : for sending a threatening
letter to Mr. Edward Joseph Keith, a solicitor of the
Cou Ï, with intent lo provoke bira \o commit a breach
ofthe.peace. Mr. W. was about to read the letter,

when

Mr. Justice Burton enquired whether the learned
gentleman had given notice of motion to the otherside,
to which Mr. Wentworth replied that he had not.

The Chief Justice then remarked that on the last
application to the Court for a crimin ii information, it
had beensuggested that as this mode of proceeding
was the ordinary remedy in this Court, notice of an
intended motion ought to be given to the opposite
parly, in order that the latter might not be put. to the
Unnecessary trouble and expense of shewing cause
against a conditional rule, wnen it was imperative on
the Court to confirm it if a prima fací» case was mado

out

Mr. Wentworth then withdrew his motion, ob-
serving that he should give the îcquisite notice, and
renew the application at a future day.

. There was no other business transacted of public
impoitance, and the court rose at half past fouT

'ovclock.

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