Woollett and Worsley now shewed caused.-The defendant had no right to go into collateral matters. Thus, in Downing v. Butcher (a), the defendant in trespass for false imprisonment was not allowed to cross-examine the plaintiff's witnesses as to the character of the plaintiff, or as to previous charges against him. [Pollock, C. B.—Can you say that this evidence was not admissible under the general issue to mitigate the damages? Chinn v. Morris (b) is an authority to that effect.] In that case it was proposed to shew that there was reasonable ground to suspect that a felony had been committed; here the defendant proposed to shew that the charge was true. [Channell, B. -I have always understood the rule to be that a defendant cannot give the excuse in evidence without pleading it, if it amounts to a justification, but that he can do so if it merely goes in mitigation of damages.] In Watson v. Christie (c), where no justification was pleaded, it was held that the jury should give damages to the amount of the injury suffered, without lessening them on account of the circumstances under which it was inflicted. [Bramwell, B.— The defendant in that case ought to have pleaded that he moderately corrected the plaintiff: the plaintiff would have new assigned, and the defendant might then have suffered judgment by default. Channell, B., referred to Regina v. Poole (d).] POLLOCK, C. B.-We all think that this evidence ought to have been received. At the trial I thought it very important, but I rejected it on the ground that what was sought to be proved was a distinct substantive crime. However, on the authorities, it appears not to be so. BRAMWELL, B., concurred. (a) 2 Moo. & Rob. 374. (c) 2 B. & P. 224. (d) 1 Dears. & B. 345, 1858. LINFORD 0. LAKE. 1858. LINFORD v. LAKE CHANNELL, B.-This evidence cannot be said to be irrelevant. The defendant may have been wrong in supposing that the facts constituted an offence, but he ought to have had the opportunity of shewing that the charge was not a pure invention. Rule absolute. May 7. The Court will venue made after issue joined, the defendant being under terms of taking short notice of trial, on the CARTWRIGHT v. FROST. QUAIN had obtained a rule calling on the defendant to shew cause why an order of Watson, B., "that the venue in this cause be changed from the county of Middlesex to county of Stafford," should not be rescinded. At the time of the making of the order issue was joined, and the defendant was under terms of taking short notice of trial. The affidavit upon which the order was made ground that the stated that the cause of action arose in Staffordshire and affidavit on which the order not in London; that all the witnesses for the defendant, was made was insufficient. and to the best of the deponent's belief all the witnesses that could be called for the plaintiff, resided in the county of Stafford; that the defendant had a good defence on the merits, and that the cause would be tried at less expense in Staffordshire than in London. The plaintiff's affidavit in answer stated that the action was brought to recover 651. arrears of salary, and that the only matter in dispute was whether he had been engaged at a salary of 607. or 80%. a year; that the only witnesses would be himself and the defendant, and that the application to change the venue was made for the purpose of delay. Gray shewed cause, and urged that the learned Judge having exercised his discretion upon the matter, the Court would not review his decision. Quain, in support of his rule.-The Court will look at all the circumstances of the case. A defendant, who is under terms of taking short notice of trial, cannot apply to change the venue upon the common affidavit. Here the defendant does not shew that he has any witnesses. The affidavit therefore amounts to no more than the common affidavit: Clulee v. Bradley (a). [Channell, B.-That case only decided that Cresswell, J., was right in holding the affidavit to be the common affidavit. It is for the Judge who has the parties before him to say whether a slight addition makes the affidavit sufficient.] MARTIN, B.-This rule must be discharged. This is not a case for appeal. I believe that I should not have made the order; but my brother Watson has done so, and it is a better practice, if the discretion of a Judge has been exercised on a matter of this kind, that his decision should be final than that we should review it. BRAMWELL, B.-Probably I should not have made the order; but I do not know what influenced my brother Watson's mind. When a mistake occurs at Chambers it is desirable that it should be set right, if it is worth the expense of doing so. But in a case like the present I think it is better to lay down the rule that the Court will not interfere to set aside the Judge's order. CHANNELL, B.-The matter was clearly one in which the learned Judge had a discretion. A Judge at Chambers does not always decide simply on the affidavits before him: it is by no means unusual for him to act on the admissions of the parties. 1858. CARTWRIGHT v. FROST. 1858. April 17. Under the 17 & 18 Vict. c. 36, which requires to be filed an affidavit of the description of the occupation of every attesting witness to a bill of sale, it is not a compliance with the statute to describe as TUTON v. SANONER. THIS At the trial before Martin, B., at the last Liverpool assizes, the plaintiff gave in evidence a bill of sale to him of the goods in question, dated the 25th June, 1857. It purported to be attested by "William Johnson," following a witness, who, which there was an erasure of the words "solicitor, Liverthough for "gentleman" merly an attorney, was at the time of the attestation acting as an attorney's clerk. pool." In the affidavit verifying the bill of sale, the attesting witness was described as "William Johnson, of Liverpool in the county of Lancaster, gentleman." The evidence shewed that Johnson had formerly been an attorney, but for some years past had ceased to practice, and at the time he attested the bill of sale was clerk to an attorney in Liverpool. It was submitted, on behalf of the defendant, that the bill of sale was void, inasmuch as the requisites of the 17 & 18 Vict. c. 36, had not been complied with. The learned Judge was of that opinion, and a verdict was entered for the defendant, leave being reserved to the plaintiff to move to enter the verdict for him. Milward, in the present Term, moved accordingly (April 17). The requisites of the 17 & 18 Vict. c. 36, have been sufficiently complied with. By section 1, "Every bill of sale of personal chattels," &c., "shall, together with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same, or in case the same shall be made or given by any person under or in the execution of any process, then a description of the residence and occupation of the person against whom such process shall have issued, and of every attesting witness to such bill of sale, be filed" within twenty-one days. The statute does not require a description of the residence and occupation of the attesting witness on the face of the bill of sale; and it may be a question whether such description need be given anywhere, except in cases where the bill of sale is made by a sheriff or other officer. The words "and of every attesting witness to such bill of sale," seem to refer to the words "in case the same shall be made or given by any person under or in the execution of any process." But, assuming that a description of the residence and occupation of the attesting witness is in all cases necessary, here there is a sufficient description in the affidavit (a). [Martin, B. -The attesting witness was acting as clerk to an attorney: that was his occupation.] Though he had ceased to practice, his name was on the roll of attornies, and therefore he was properly described as "gentleman." [Bramwell, B.— In Allen v. Thompson (b) this Court held that "gentleman" was not a proper description of a clerk in a government office.] There the party misdescribed was the assignor of the bill of sale, not, as here, the attesting witness. The object of the statute was to give such information that the witness might easily be found, if wanted. Therefore it has been held that an attorney's clerk is properly described as (a) With respect to the residence, it was objected that the name of the town was not a sufficient description, but the decision of the Court rendered this point (b) 1 H. & N. 15. 1858. TUTON v. SANONER. |