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RIGHT HON. LORD COMMISSIONER BOSANQUET,
Copied from the Transcript of the Short-hand Writer's Notes.
Monday, 23d November 1835.
SIR WILLIAM FolleTT.—My Lords—
Sir CHARLEs WETHERELL. — Before my learned friend goes on, I think it necessary to state to your lordships that I appear in this case for the City of London—for what purposes I know not; they have not thought fit to serve the City of London with the motion, although, when it comes to be fully discussed and opened, you will perceive that the City of London are one of the most essential parties in this measure. Your lordships are perfectly well aware, that although it may serve the purposes of persons on one side of the question not to give a notice of motion to another party, it is the right of that party hereafter to appeal against any order which is made ex parte, and in the absence of a person who ought to be served with notice.
Sir W. Follett.—We have no objection to the City of London appearing now.
Sir C. WETHERELL.-Then that puts an end to the question.
Sir W. Follett.—They appear at their own risk; we do not choose to serve them with a notice.
Sir C. WETHERELL.-That is again another finesse of my learned friend, whom we have great satisfaction in seeing in this Court. There are matters of finesse in the Courts which are usually graced by the presence and the learning, the talent and the eloquence, of my honorable and learned friend: in this Court, also, finesses are sometimes practised—in this Court, graced by the occasional presence of my learned friend, and less graced because his presence is not constant here, but occasional. We have here, also, our finesses of practice; and one is, that if persons think they will be exposed to double costs in a motion which they cannot succeed in, their habit sometimes is, not to serve a party who ought to be served: and when my learned friend says, Well, we have no objection to your appearing, but we will not pay you your costs, that is a finesse which, by implication, admits that we ought to serve you with notice; but when our motion is dismissed it is extremely convenient not to have served you, the City of London, who ought to have been served, and who, if the motion is dismissed, will have their costs paid. The finesse is, to argue the motion in the absence of the party who ought to be served with notice, though if that party chooses to appear he may appear at his own cost. Now it may well be supposed, that with respect to costs, the City of London are not in that condition that the reception or payment of costs is a matter of such importance to them; nevertheless, as a general rule, it is fraught with impropriety in a case involving considerations of high importance, that a motion respecting the authority, and the jurisdiction, and the rights of the City in the government and management, and control and visitation, of an important public body, that a motion of this sort should be discussed in their absence, and that by and by an equally important—l was going to say, almost a more important—motion should be made by those by whom the motion is made ; that a motion of this sort should be discussed, and that it should be said—You may appear and defend yourselves, if you please, but you must do so at the peril of costs, I must take the liberty to say that that is a perfect finesse in the management of this motion. I can only say, that on the part of the City of London I believe your lordships will see, in the progress of this case, that the City of London are a necessary party in this motion; and I contend, therefore, that the City of London are to be considered as served with this notice of motion, and that by and by, if it is dismissed with costs, the City of London will have their costs. Lord Commissioner PEPYs.—If it is dismissed with costs because the City of London ought not to be parties to it, you will not be entitled to costs; but if it is dismissed with costs upon the merits, of course you will be entitled to costs if you are necessary parties. Sir W. Follett.—What I say is, that we have no objection to the City of London appearing, but we do not wish to be considered as serving them with notice, because, I say, they ought not to appear, and they appear at their own peril. Sir C. WeTHERELL.-It is not for me to assume confidence in anticipating what the judgment of your lordships may be, but I may presume with confidence to anticipate what your opinion will by and by be. You will by and by say that the City of London must be served with this motion; and that you cannot stir without having the City of London here. Lord Commissioner PEPYs.—Under those circumstances, in the way in which it stands, you will be considered as having been brought before the Court. Sir W. Follett.—I do not know whether we are to understand that; my learned friend does appear. Sir C. WETHERELL.-I have already stated that before this motion is disposed of I shall claim to be heard. Mr. WIGRAM.–And you appear now. Sir C. WETHERELL.-No, I do not appear. Mr. Wigram.—That is the very point. Sir C. WETHERELL.-In short, by and by, when this motion has been opened for five minutes, you must come to the point, and that point is, whether you are to make an experimental motion at the hazard of putting the City of London into the situation of opposing it at their expense, and not at yours.