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lowed an amendnient in the names after a verdict for the plaintiff. In that case Lord Ellenborough observed, “ On referring to the case of Sayer v. Pocock (a), I find that Lord Mansfield considers a similar omission to the present as an omission of the clerk." Under any circumstances, therefore, the order of reference ought not to be set aside.
Mansel, in support of the rule, contended, that the order of reference referred to a cause not in existence. The issue was joined between “ John Price and Thomas James" but the order of reference referred a cause between “ John Price and James Thomas" the case itself, there. fore, had never been before the arbitrator. One of the consequences resulting from this error in the name of the cause would be to prevent any of the witnesses who had appeared before the arbitrator, and who might have made wilful false statements, from being punished for perjury. He cited Rex v. Cohen (6), where a co-plaintiff died after issue joined, and the death was not suggested, according to the 8 & 9 of Will. 3, c. 11, s. 6, and a trial afterwards took place; it was held that such trial was extra-judicial, and consequently no perjury could be assigned upon any false evidence given at such trial. Lord Ellenborough there observed, “I am of opinion that the suit is abated by the death of a co-plaintiff, unless a suggestion be entered; and if so, since the oath was taken in an unauthorized cause, I cannot say that the swearing amounts to perjury, however I may regret it." So here, the proceeding is extra-judicial, as it is not in a cause which has existence; and therefore no person would be liable to the penalties of perjury for false evidence given before the arbitrator. It had been said on the other side, , that the plaintiff, by attending the arbitrator, had waived the present objection. But the present objection was one
which he could not waive, because the whole proceeding was a nullity, and no act of the plaintiff in appearance acquiescing in it could render it available. In Garratt v. Hooper (a), it was held, that, if a plea in abatement be a nullity, no act of the plaintiff apparently acquiescing in it will be construed into a recognition of it. There the distinction was taken between an irregularity and a nullity; for Mr. Justice Taunton there said, " There is this difference between an irregularity and a nullity: an irregularity may be waived, but a nullity cannot.” Here also the proceeding before the arbitrator was a mere nullity, and the attendance by the plaintiff before him could not render it valid. It had also been urged that the error in this case might be amended; but, in Rawtree v. King and another (6), all matters in difference in the cause were agreed to be referred, and the associate by mistake drew up the order of reference generally as to all matters in difference between the parties. The Court there said, that they could not interfere; that the order of reference must be considered as a mere nullity, and that the effect would be that the parties must go down to another trial. If it should be said that the plaintiff should apply to set aside the award instead of the order of reference, there was no foundation for that argument. In the case of Doe d. Lord Carlisle v. Bailiff and Burgesses of Morpeth (c), it was decided, that if upon a reference either party is precluded by the terms of the rule from going into evidence of that which he is desirous to try, his remedy is to move to set aside the rule of reference; but he cannot impeach the award. He submitted, therefore, on the authority of the cases cited, that the present rule must be made absolute for setting aside the order of reference.
LITTLEDALE, J.-My present impression is, that the
(a) Ante, Vol. I, p. 23.
(6) 5 J. B. Moore, 167 (c) 3 Taunt. 378.
error in the order of reference may be amended. I will, how. ever, look into the cases and state my opinion another day.
Cur. adv. vult.
LITTLEDALE, J.-I have looked into the cases and consulted the other Judges, and we are of opinion that the name may be amended,
EAGLEFIELD 3. STEPHENS. Where a bail
WHITE moved for a rule to shew cause why the rule has misdescribe ed his place of
for the allowance of the bail in this case should not be set residence on aside, on the ground that one of the bail had mis-stated justification, but has been allow. his place of residence. He cited Brown v. Gillies (a), ed to pass, the Court will not
where the rule for the allowance of bail was discharged, set aside the rule for the al
with costs to be paid by the defendant, on an affidavit that lowance of the
the bail had perjured himself, on bis justification, in bail, but he may be indicted swearing that an action, in which he had been bail, had for perjury.
been compromised. There were other cases to the same effect.
PARKE, J.-I know there were two or three cases to that effect, in which the Court has interfered to set aside the rule for the allowance of bail, as now prayed. The Courts, however, soon found such a practice to be so inconvenient that it was discontinued. Your only remedy now is by indicting the party for perjury.
(a) I Chit. Rep. 372.
1833. Ex parte Pitt.
(Before the four Judges.) MR. PITT (in person) applied for a rule to shew cause an application why certain attornies, whose names he mentioned, should for a rule re
quiring an atnot be required to answer certain matters contained in an torney to an
swer the mataffidavit made by the applicant, and on which he moved. ters of an affi
davit must be
made by a genLord DENMAN, C. J., (after consulting the other Judges teman at the and the Master of the Crown Office).—The motion against an attorney being in the nature of a criminal information, the Court requires that it should be made by a gentleman at the bar; and it cannot be made in person. Otherwise, we have not the sanction of a barrister for the propriety of such an application. We cannot, therefore, hear you make this motion. The only case in which it appears that the Court ever interfered, where the application was made in person, was where a party demanded protection of the Court against an attorney; and, as it then appeared on his affidavit that the attorney had been guilty of great misconduct, the Court, of its own accord, directed that he should answer the matters stated in the affidavit of the applicant. That case is, however, different from the present; as here the direct and primary object of the application is that the atorney should answer the matters contained in the affidavit.
Fitch v. GREEN. CROWDER obtained a rule to shew cause why the Where a party Master's taxation should not be reviewed. Notice had successfully in been previously given to the opposite party that such a the first inmotion would be made.
entitled to costs.
stance, he is not
Parke, J., was of opinion that the rule ought to be discharged.
Follett, who had appeared on the notice to shew cause in the first instance, now applied for the costs of so appearing.
PARKE, J.-As you appeared in the first instance to shew cause, you are not entitled to the costs of appearing.
Rule discharged, without costs.
Rex v. Forbes and Others. The venue can
V. LEE moved for a rule to shew cause why the venue not be changed in an indict
in this case should not be changed from London to Stafspiracy, untii fordshire, on the ground that all the witnesses for the issue is joined. defendants resided in that county. It was an indictment
for conspiracy, and the affidavits disclosed circumstances of peculiar hardship upon the defendants.
PARKE, J.-Is issue joined in the case ?
V. Lee stated that issue was not yet joined.
PARKE, J.-Then the motion cannot be granted under any circumstances until issue is joined.